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Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949 The President has reasonable factual grounds to determine that no members of the Taliban militia are entitled to prisoner of war status under Article 4 of the 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War. February 7, 2002 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT You have asked for our Office’s views concerning the status of members of the Taliban militia under Article 4 of the 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War (“GPW”). Assuming the accuracy of various facts provided to us by the Department of Defense (“DoD”), we conclude that the President has reasonable factual grounds to determine that no members of the Taliban militia are entitled to prisoner of war (“POW”) status under GPW. First, we explain that the Taliban militia cannot meet the requirements of Article 4(A)(2), because it fails to satisfy at least three of the four conditions of lawful combat articulated in Article 1 of the Annex to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land (“Hague Convention”), which are expressly incorporated into Article 4(A)(2). Second, we note that neither Article 4(A)(1) nor Article 4(A)(3) apply to militia, and that the four conditions of lawful combat contained in the Hague Convention also govern Article 4(A)(1) and (3) determinations in any case. Finally, we explain why there is no need to convene a tribunal under Article 5 to determine the status of the Taliban detainees. I. Article 4(A) of GPW defines the types of persons who, once they have fallen under the control of the enemy, are entitled to the legal status of POWs. The first three categories are the only ones relevant to the Taliban. Under Article 4(A)(1), individuals who are “members of the armed forces of a Party to the conflict,” are entitled to POW status upon capture. Article 4(A)(3) includes as POWs members of “regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” Article 4(A)(2) includes as POWs members of “other militias” and “volunteer corps,” including “organized resistance movements” that belong to a Party to the conflict. In addition, members of militias and volunteer corps must “fulfill” four conditions: (a) “being commanded by a person responsible for his subordinates”; (b) “having a fixed distinctive sign recognizable at a distance”; (c) “carrying arms openly”; and (d) “conducting their operations in accordance with the laws and customs of war.” Those four conditions reflect those required in the 1907 Hague 1 227-329 VOL_26_PROOF.pdf 11 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 Convention IV. See Commentary to the Geneva Convention Relative to the Treatment of Prisoners of War 49 (Red Cross 1952) (“Red Cross Commentary”) (“[D]uring the 1949 Diplomatic Conference . . . there was unanimous agreement that the categories of persons to whom the Convention is applicable must be defined, in harmony with the Hague Regulations.”). Should “any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4,” GPW Article 5 requires that these individuals “enjoy the protections of” the Convention until a tribunal has determined their status. Thus, in deciding whether members of the Taliban militia qualify for POW status, the President must determine whether they fall within any of these three categories. Under Article II of the Constitution, the President possesses the power to interpret treaties on behalf of the Nation. Memorandum for John Bellinger, III, Senior Associate Counsel and Legal Adviser to the National Security Council, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority of the President to Suspend Certain Provisions of the ABM Treaty (Nov. 15, 2001). This includes, of course, the power to apply treaties to the facts of a given situation. Thus, the President may interpret GPW, in light of the known facts concerning the operation of Taliban forces during the Afghanistan conflict, to find that all of the Taliban forces do not fall within the legal definition of POW. A presidential determination of this nature would eliminate any legal “doubt” as to the prisoners’ status, as a matter of domestic law, and would therefore obviate the need for Article 5 tribunals. We believe that, based on the facts provided by the Department of Defense, see Rear Admiral L.E. Jacoby, U.S. Navy, J-2, Information Paper, Subject: Background Information on Taliban Forces (Feb. 6, 2002), the President has reasonable grounds to conclude that the Taliban, as a whole, is not legally entitled to POW status under Article 4(A)(1) through (3). II. As the Taliban have described themselves as a militia, rather than the armed forces of Afghanistan, we begin with GPW’s requirements for militia and volunteer corps under Article 4(A)(2). Based on the facts presented to us by DoD, we believe that the President has the factual basis on which to conclude that the Taliban militia, as a group, fails to meet three of the four GPW requirements, and hence is not legally entitled to POW status. First, there is no organized command structure whereby members of the Taliban militia report to a military commander who takes responsibility for the actions of his subordinates. The Taliban lacks a permanent, centralized communications infrastructure. Periodically, individuals declared themselves to be “commanders” 2 227-329 VOL_26_PROOF.pdf 12 10/22/12 11:13 AM Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949 and organized groups of armed men, but these “commanders” were more akin to feudal lords than military officers. According to DoD, the Taliban militia functioned more as many different armed groups that fought for their own tribal, local, or personal interests. Moreover, when the armed groups organized, the core of the organization was often al Qaeda, a multinational terrorist organization, whose existence was not in any way accountable to or dependent upon the sovereign state of Afghanistan. We have previously concluded, as a matter of law, that al Qaeda members are not covered by GPW. See Memorandum for Alberto R. Gonzales, Counsel to the President and William J. Haynes II, General Counsel of the Department of Defense, from Jay S. Bybee, Assistant Attorney General, Re: Applications of Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 22, 2002). After October 7, when the United States armed forces began aerial bombing of al Qaeda and Taliban targets in Afghanistan, the distinction between Taliban and al Qaeda became even more blurred as al Qaeda assumed the lead in organizing the defense. DoD’s facts suggest that to the extent the Taliban militia was organized at all, it consisted of a loose array of individuals who had shifting loyalties among various Taliban and al Qaeda figures. According to DoD, the Taliban lacked the kind of organization characteristic of the military. The fact that at any given time during the conflict the Taliban were organized into some structured organization does not answer whether the Taliban leaders were responsible for their subordinates within the meaning of GPW. Armed men who can be recruited from other units, as DoD states, through defections and bribery are not subject to a commander who can discipline his troops and enforce the laws of war. Second, there is no indication that the Taliban militia wore any distinctive uniform or other insignia that served as a “fixed distinctive sign recognizable at a distance.” DoD has advised us that the Taliban wore the same clothes they wore to perform other daily functions, and hence they would have been indistinguishable from civilians. Some have alleged that members of the Taliban would wear black turbans, but apparently this was done by coincidence rather than design. Indeed, there is no indication that black turbans were systematically worn to serve as an identifying feature of the armed group. Some of the Taliban militia carried a tribal flag. DoD has stated that there is no indication that any individual members of the Taliban wore a distinctive sign or insignia that would identify them if they were not carrying or otherwise immediately identified with a tribal flag. Moreover, DoD has not indicated that tribal flags marked only military, as opposed to civilian, groups. Third, the Taliban militia carried arms openly. This fact, however, is of little significance because many people in Afghanistan carry arms openly. Although Taliban forces did not generally conceal their weapons, they also never attempted to distinguish themselves from other individuals through the arms they carried or the manner in which they carried them. Thus, the Taliban carried their arms 3 227-329 VOL_26_PROOF.pdf 13 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 openly, as GPW requires military groups to do, but this did not serve to distinguish the Taliban from the rest of the population. This fact reinforces the idea that the Taliban could neither be distinguished by their uniforms and insignia nor by the arms they carried from Afghani civilians. Finally, there is no indication that the Taliban militia understood, considered themselves bound by, or indeed were even aware of, the Geneva Conventions or any other body of law. Indeed, it is fundamental that the Taliban followed their own version of Islamic law and regularly engaged in practices that flouted fundamental international legal principles. Taliban militia groups have made little attempt to distinguish between combatants and non-combatants when engaging in hostilities. They have killed for racial or religious purposes. Furthermore, DoD informs us of widespread reports of Taliban massacres of civilians, raping of women, pillaging of villages, and various other atrocities that plainly violate the laws of war. Based on the above facts, apparently well known to all persons living in Afghanistan and joining the Taliban, we conclude that the President can find that the Taliban militia is categorically incapable of meeting the Hague conditions expressly spelled out in Article 4(A)(2) of GPW. III. One might argue that the Taliban is not a “militia” under Article 4(A)(2), but instead constitutes the “armed forces” of Afghanistan. Neither Article 4(A)(1), which grants POW status to members of the armed forces of a state party, nor Article 4(A)(3), which grants POW status to the armed forces of an unrecognized power, defines the term “armed forces.” Unlike the definition of militia in Article 4(A)(2), these two other categories contain no conditions that these groups must fulfill to achieve POW status. Moreover, because GPW does not expressly incorporate Article 4(A)(2)’s four conditions into either Article 4(A)(1) or (3), some might question whether members of regular armed forces need to meet the Hague conditions in order to qualify for POW status under GPW. We conclude, however, that the four basic conditions that apply to militias must also apply, at a minimum, to members of armed forces who would be legally entitled to POW status. In other words, an individual cannot be a POW, even if a member of an armed force, unless forces also are: (a) “commanded by a person responsible for his subordinates”; (b) “hav[e] a fixed distinctive sign recognizable at a distance”; (c) “carry[] arms openly”; and (d) “conduct[] their operations in accordance with the laws and customs of war.” Thus, if the President has the factual basis to determine that Taliban prisoners are not entitled to POW status under Article 4(A)(2) as members of a militia, he has the grounds to also find that they are not entitled to POW status as members of an armed force under either Article 4(A)(1) or Article 4(A)(3). 4 227-329 VOL_26_PROOF.pdf 14 10/22/12 11:13 AM Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949 Article 4(A)’s use of the phrase “armed force,” we believe, incorporated by reference the four conditions for militia, which originally derived from the Hague Convention IV. There was no need to list the four Hague conditions in Article 4(A)(1) because it was well understood under preexisting international law that all armed forces were already required to meet those conditions. As would have been understood by the GPW’s drafters, use of the term “armed forces” incorporated the four criteria, repeated in the definition of militia, that were first used in the Hague Convention IV. The view that the definition of an armed force includes the four criteria outlined in Hague Convention IV and repeated in GPW is amply supported by commentators. As explained in a recently-issued Department of the Army pamphlet, the four Hague conditions are arguably part and parcel of the definition of a regular armed force. It is unreasonable to believe that a member of a regular armed force could conduct military operations in civilian clothing, while a member of the militia or resistance groups cannot. Should a member of the regular armed forces do so, it is likely that he would lose his claim to immunity and be charged as a spy or as an illegal combatant. Major Geoffrey S. Corn & Major Michael L. Smidt, “To Be Or Not To Be, That Is The Question”: Contemporary Military Operations and the Status of Captured Personnel, Army Law., June 1999, at 1, 14 n.127 (citation omitted). One scholar has similarly concluded that “[u]nder the Hague Convention, a person is a member of the armed forces of a state only if he satisfies the [four enumerated] criteria.” Gregory M. Travalio, Terrorism, International Law, and the Use of Military Force, 18 Wis. Int’l L.J. 145, 184 n.140 (2000). See also Michael N. Schmitt, Bellum Americanum: The U.S. View of Twenty-First Century War and Its Possible Implications For the Law of Armed Conflict, 19 Mich. J. Int’l L. 1051, 1078 (1998) (“[U]nder the Regulations annexed to Hague Convention IV, combatants were those who were members of the regular armed forces (or formal militia), were commanded by a person responsible for their conduct, wore a fixed distinctive emblem (or uniform), carried their weapons openly, and conducted operations in accordance with the law of war. The 1949 Geneva Convention on Prisoners of War extended this status to members of an organized resistance movement which otherwise complied with the Hague IV requirements.”). Further, it would be utterly illogical to read “armed forces” in Article 4(A)(1) and (3) as somehow relieving members of armed forces from the same POW requirements imposed on members of a militia. There is no evidence that any of the GPW’s drafters or ratifiers believed that members of the regular armed forces ought to be governed by lower standards in their conduct of warfare than those 5 227-329 VOL_26_PROOF.pdf 15 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 applicable to militia and volunteer forces. Otherwise, a sovereign could evade the Hague requirements altogether simply by designating all combatants as members of the sovereign’s regular armed forces. A sovereign, for example, could evade the status of spies as unlawful combatants simply by declaring all spies to be members of the regular armed forces, regardless of whether they wore uniforms or not. Further, it would make little sense to construe GPW to deny some members of militias or volunteer corps POW protection for failure to satisfy the Hague conditions (under Article 4(A)(2)), while conferring such status upon other members simply because they have become part of the regular armed forces of a party (under Article 4(A)(1)). This interpretation of “armed force” in GPW finds direct support in the International Committee of the Red Cross (“ICRC”), the non-governmental organization primarily responsible for, and most closely associated with, the drafting and successful completion of GPW. After the Conventions were established, the Committee started work on a Commentary on all of the Geneva Conventions. In its discussion of Article 4(A)(3) of GPW, the ICRC construed both Article 4(A)(1) and (3) to require all regular armed forces to satisfy the four Hague IV (and Article 4(A)(2)) conditions: [t]he expression “members of regular armed forces” denotes armed forces which differ from those referred to in sub-paragraph (1) of this paragraph in one respect only: the authority to which they profess allegiance is not recognized by the adversary as a Party to the conflict. These “regular armed forces” have all the material characteristics and all the attributes of armed forces in the sense of subparagraph (1): they wear uniform, they have an organized hierarchy and they know and respect the laws and customs of war. The delegates to the 1949 Diplomatic Conference were therefore fully justified in considering that there was no need to specify for such armed forces the requirements stated in sub-paragraph (2) (a), (b), (c) and (d). Red Cross Commentary at 62-63 (emphasis added). Numerous scholars have similarly interpreted GPW as applying the four conditions to Article 4(A)(1) and (3) as well as to Article 4(A)(2). As Professor Howard S. Levie, a leading expert on the laws of war and the Geneva Conventions in particular, has explained in his authoritative treatise: This enumeration [of the four conditions] does not appear in subparagraph 1, dealing with the regular armed forces. This does not mean that mere membership in the regular armed forces will automatically entitle an individual who is captured to prisoner-of-war status if his activities prior to and at the time of capture have not met these 6 227-329 VOL_26_PROOF.pdf 16 10/22/12 11:13 AM Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949 requirements. The member of the regular armed forces wearing civilian clothes who is captured while in enemy territory engaged in an espionage or sabotage mission is entitled to no different treatment than that which would be received by a civilian captured under the same circumstances. Any other interpretation would be unrealistic as it would mean that the dangers inherent in serving as a spy or saboteur could be immunized merely by making the individual a member of the armed forces; and that members of the armed forces could act in a manner prohibited by other areas of the law of armed conflict and escape the penalties therefore, still being entitled to prisoner-ofwar status. Howard S. Levie, 59 International Law Studies: Prisoners of War in International Armed Conflict 36-37 (Naval War College 1977). Oxford Professor Ingrid Detter has similarly concluded that, under the 1949 Geneva Conventions, to be a combatant, a person would have to be: (a) commanded by a person responsible for his subordinates; (b) having a fixed distinctive sign recognizable at a distance; (c) carrying arms openly; (d) conducting their operations in accordance with the laws and customs of war. The same requirements as apply to irregular forces are presumably also valid for members of regular units. However, this is not clearly spelt out: there is no textual support for the idea that members of regular armed forces should wear uniform. On the other hand, there is ample evidence that this is a rule of law which has been applied to a number of situations to ascertain the status of a person. Any regular soldier who commits acts pertaining to belligerence in civilian clothes loses his privileges and is no longer a lawful combatant. “Unlawful” combatants may thus be either members of the regular forces or members of resistance or guerilla movements who do not fulfil the conditions of lawful combatants. Ingrid Detter, The Law of War 136-37 (Cambridge 2d ed. 2000) (footnotes omitted). See also Christopher C. Burris, The Prisoner of War Status of PLO Fedayeen, 22 N.C. J. Int’l L. & Com. Reg. 943, 987 n.308 (1997) (“I am using Article 4A(2)’s four criteria because the armed forces of the Palestinian Authority, over 7 227-329 VOL_26_PROOF.pdf 17 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 30,000 men under arms organized into roughly ten or more separate para-military units, are more characteristic of militia units than the regular armed forces of a state. This is because these units are organized as police/security units, not exclusive combat units. See Graham Usher, Palestinian Authority, Israeli Rule, The Nation, Feb. 5, 1996, at 15, 16. Whether the Palestinian Authority’s forces are considered militia or members of the armed forces, they still must fulfill Article 4A(2)’s four criteria.”). 1 Therefore, it is clear that the term “armed force” includes the four conditions first identified by Hague Convention IV and expressly applied by GPW to militia groups. In other words, in order to be entitled to POW status, a member of an armed force must (a) be “commanded by a person responsible for his subordinates”; (b) “hav[e] a fixed distinctive sign recognizable at a distance”; (c) “carry[] arms openly”; and (d) “conduct[] their operations in accordance with the laws and customs of war.” We believe that the President, based on the facts supplied by DoD, has ample grounds upon which to find that members of the Taliban have failed to meet three of these four criteria, regardless of whether they are characterized as members of a “militia” or of an “armed force.” The President, therefore, 1 The only federal court we are aware of that has addressed this issue denied Article 4(A)(3) status to defendants because they could not satisfy the Hague conditions. In United States v. Buck, 690 F. Supp. 1291 (S.D.N.Y. 1988), the defendants claimed that they were entitled to POW status as military officers of the Republic of New Afrika, “a sovereign nation engaged in a war of liberation against the colonial forces of the United States government.” Id. at 1293. That nation, it was contended, included “all people of African ancestry living in the United States.” Id. at 1296. The court refused to extend POW status to the defendants. After determining that GPW did not apply at all due to the absence of an armed conflict as understood under Article 2, the court alternatively reasoned that the defendants could not satisfy any of the requirements of Article 4. See id. at 1298 (stating that, even if GPW applied, “it is entirely clear that these defendants would not fall within Article 4, upon which they initially relied”). The court first concluded that the defendants failed to meet the four Hague conditions expressly spelled out in Article 4(A)(2). The court then rejected POW status under Article 4(A)(3) “[f]or comparable reasons”: Article 4(A)(2) requires that to qualify as prisoners of war, members of “organized resistance movements” must fulfill the conditions of command by a person responsible for his subordinates; having a fixed distinctive sign recognizable at a distance; carrying arms openly; and conducting their operations in accordance with the laws and customs of war. The defendants at bar and their associates cannot pretend to have fulfilled those conditions. For comparable reasons, Article 4(3)’s reference to members of “regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power,” also relied upon by defendants, does not apply to the circumstances of this case. Id. (emphasis added). The court reached this conclusion even though the Hague conditions are not explicitly spelled out in Article 4(A)(3). Nothing in the court’s discussion suggests that it would have construed Article 4(A)(1) any differently. 8 227-329 VOL_26_PROOF.pdf 18 10/22/12 11:13 AM Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949 may determine that the Taliban, as a group, are not entitled to POW status under GPW. IV. Under Article 5 of GPW, “[s]hould any doubt arise as to whether persons . . . belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” As we understand it, DoD in the past has presumed prisoners to be entitled to POW status until a tribunal determines otherwise. The presumption and tribunal requirement are triggered, however, only if there is “any doubt” as to a prisoner’s Article 4 status. Under Article II of the Constitution, the President possesses the power to interpret treaties on behalf of the Nation. * We conclude, in light of the facts submitted to us by the Department of Defense and as discussed in parts II and III of this memorandum, that the President could reasonably interpret GPW in such a manner that none of the Taliban forces falls within the legal definition of POWs as defined by Article 4. A presidential determination of this nature would eliminate any legal “doubt” as to the prisoners’ status, as a matter of domestic law, and would therefore obviate the need for Article 5 tribunals. This approach is also consistent with the terms of Article 5. As the International Committee of the Red Cross has explained, the “competent tribunal” requirement of Article 5 applies “to cases of doubt as to whether persons having committed a belligerent act and having fallen into the hands of the enemy belong to any of the categories enumerated in Article 4.” Red Cross Commentary at 77. Tribunals are thus designed to determine whether a particular set of facts falls within one of the Article 4 categories; they are not intended to be used to resolve the proper interpretation of those categories. The President, in other words, may use his constitutional power to interpret treaties and apply them to the facts, to make the determination that the Taliban are unlawful combatants. This would remove any “doubt” concerning whether members of the Taliban are entitled to POW status. We therefore conclude that there is no need to establish tribunals to determine POW status under Article 5. JAY S. BYBEE Assistant Attorney General Office of Legal Counsel * Editor’s Note: We have deleted a footnote containing a citation to an earlier Office of Legal Counsel memorandum that was unnecessary to support the proposition in the text, because the cited memorandum no longer reflects the views of this Office. 9 227-329 VOL_26_PROOF.pdf 19 10/22/12 11:13 AM

Write a legal research memo on the following topic.

Applicability of the Miscellaneous Receipts Act to Personal Convenience Fees Paid to a Contractor by Attendees at Agency-Sponsored Conferences “Personal convenience” fees that attendees at agency-sponsored conferences pay to private contractors are not subject to the Miscellaneous Receipts Act. November 22, 2006 MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF COMMERCE Many agencies, including within the Department of Commerce, host public conferences where agency officials can exchange ideas and information with peers outside the agency on topics relating to the agency’s statutory mission. Often the agencies hire a private contractor to help plan and administer these conferences. The contractor may collect fees from conference attendees to cover its costs of providing certain goods and services to the attendees. You have asked whether these fees are subject to the Miscellaneous Receipts Act (“MRA”), 31 U.S.C. § 3302(b) (2000). We conclude that they are not. I. In sponsoring a conference, you have explained, it is common for an agency to hire a contractor, paid out of appropriated funds, to manage logistics. It also has been common for agencies to authorize such a contractor (1) to provide meals, lodging, refreshments, and other goods and services to conference attendees and (2) to charge the attendees a “personal convenience” fee to cover the costs of these items. You distinguish the fees collected under such a scenario from fees that a contractor might collect for the agency, to cover the agency’s costs in hosting the conference. 1 Agencies within the Department of Commerce have generally had little if any say in the amount of any fee. Sometimes, they have required the contractor to make food available to conference attendees and have retained the right to some input to ensure against lavish arrangements or excessive charges that would discourage attendance, but otherwise they have left the contractor free to deal directly with the attendees. Any fees are collected at the discretion of the contractor, not at the direction of the government. 1 Whether an agency could pay the cost of personal convenience items from its appropriations is a separate question, which we do not address. As you recognize, 31 U.S.C. § 1345 forbids an agency in many cases from using an appropriation for “travel, transportation, and subsistence expenses for a meeting.” See generally Use of Appropriations to Pay Travel Expenses of International Trade Administration Fellows, 28 Op. O.L.C. 269 (2004). 132 Applicability of the Miscellaneous Receipts Act to Personal Convenience Fees This practice was called into question by the Comptroller General’s 2005 opinion in Matter of: National Institutes of Health—Food at Government-Sponsored Conferences, B-300,826, 2005 WL 502825 (“NIH”). That opinion addressed whether an agency could charge and retain a registration fee to defray the costs of meals and light refreshments at a conference that the Institutes were hosting. The Comptroller General advised that, under the MRA, the Institutes could not retain any fee. He added: “Nor could NIH authorize its contractor to charge a fee to offset costs, because, pursuant to [the MRA], a contractor receiving money for the government may not retain funds received for the government to pay for the conference costs.” Id. at *6. The Comptroller General did not explain why, in such situations, the contractor would be “an official or agent of the Government” under the MRA in receiving payment from attendees for its services to attendees, or why those fees that the contractor received would be received “for the Government.” See 31 U.S.C. § 3302(b). He did recognize, however, that “the participants may cover the costs of their food using their own personal funds.” NIH, 2005 WL 502825, at *6. The Comptroller General reiterated this position in Contractors Collecting Fees at Agency-Hosted Conferences, B-306,663, 2006 WL 39435 (“Contractors”). He stated that “when an agency lacks statutory authority to charge a fee at a conference and retain the proceeds, neither the agency hosting a conference, nor a contractor on behalf of the agency, may do so.” Id. at *1 (emphasis added). You question why, if attendees may purchase meals, lodging, and refreshments “using their own personal funds,” a contractor could not offer such items to the attendees and then retain the attendees’ payments from their own personal funds. II. We agree that a private contractor may, consistent with the MRA, retain fees it receives from conference attendees for goods and services such as meals, lodging, and refreshments that the contractor provides to the attendees. The MRA requires as follows: “[A]n official or agent of the Government receiving money for the Government from any source shall deposit the money in the Treasury as soon as practicable without deduction for any charge or claim.” 31 U.S.C. § 3302(b). In the circumstances you have described, the fees are not received “for the Government” but rather collected by contractors for their own use. 2 2 Because we answer your question on this basis, we need not determine whether the contractors could be considered “agent[s] of the Government” in their receipt of the fees, or whether the government constructively “receive[s]” the fees, see generally Effect of 31 U.S.C. § 484 on the Settlement Authority of the Attorney General, 4B Op. O.L.C. 684, 688 (1980). On the former question, there is an argument from one of the sanctions for violating the MRA—removal “from office,” 31 U.S.C. § 3302(d)—that a contractor, not holding any “office,” cannot be subject to the MRA. The D.C. Circuit has employed this reasoning. See Thomas v. Network Solutions, Inc., 176 F.3d 500, 511 (D.C. Cir. 1999) (“This sanction makes no sense with respect to a private actor like Network Solutions.”); cf. 133 Opinions of the Office of Legal Counsel in Volume 30 The most natural reading of the phrase “for the Government” in the MRA is that it describes something intended to be used by the government. See 6 Oxford English Dictionary 24 (Clarendon 2d ed. 1989) (defining “for” as “[i]ntroducing the intended recipient, or the thing to which something is intended to belong, or in connexion with which it is to be used”); cf. Motor Coach Indus., Inc. v. Dole, 725 F.2d 958, 968 (4th Cir. 1984) (affirming injunction against contracts between Federal Aviation Administration and airlines under which the FAA waived certain fees and airlines deposited money into a trust fund: “the Trust was an attempt by the FAA to divert funds from their intended destination—the United States Treasury”) (emphasis added). This interpretation is bolstered by the MRA’s statutory history and this Office’s interpretation of the MRA’s earlier language. In its original form, that act provided as follows: [T]he gross amount of all duties received from customs, from the sales of public lands, and from all miscellaneous sources, for the use of the United States, shall be paid by the officer or agent receiving the same into the treasury of the United States at as early a day as practicable. Act of Mar. 3, 1849, ch. 110, § 1, 9 Stat. 398, 398 (emphasis added). The phrase “for the use of the United States” remained in the act for 133 years, until Congress in 1982 amended a large portion of title 31, as discussed below. The reference to “use” indicated that the money must be intended for use by, or meant to cover an obligation or expense of, the United States. Thus this Office in 1978 explained that the phrase “for the use of the United States” in the MRA “has been interpreted to require that the funds in question are ‘to be used in bearing the expense of the administration of the Government and paying the obligations of the United States.’” Memorandum for the Attorney General, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Legislation Regarding FBI Undercover Operations at 4 (July 27, 1978) (“Undercover Operations”) (quoting Disposition of Excess Railway Operating Income, 33 Op. Att’y Gen. 316, 321 (1922)). We added that “funds must be available to the United States for Scheduled Airlines Traffic Offices, Inc. v. Dep’t of Def., 87 F.3d 1356, 1361 (D.C. Cir. 1996) (referring to the MRA’s “requirement that a Government official ‘receiving money for the Government from any source’ deposit the money in the Treasury”). On the other hand, section 3302(d) also includes forfeiture as a sanction, which might be available against a non-officer, and the D.C. Circuit’s reading does not clearly give content to the term “agent,” as distinct from “official.” The concept of “[a]gency encompasses a wide and diverse range of relationships and circumstances,” including but not limited to the relationship between “employer and employee.” Restatement (Third) of Agency § 1.01 cmt. c (2006). This Office has not previously resolved the meaning of the term “agent” in the MRA. Cf. Memorandum for the Attorney General, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Legislation Regarding FBI Undercover Operations at 4, 8 (July 27, 1978) (using “agent” in the sense of FBI Special Agents and suggesting curing an MRA problem involving income received in the FBI’s undercover business operations by instead “associat[ing] with a private business”). 134 Applicability of the Miscellaneous Receipts Act to Personal Convenience Fees disposition on its own behalf.” Id. And in applying the MRA, we noted that “the funds in issue are at the disposal of the United States” and that “[t]his availability . . . must mean that they were received ‘for the use of the United States.’” Id. See also id. at 6 (purpose of MRA was to “require Congressional control of all funds that are available to the United States for disbursement, regardless of the source of the funds or the reason the funds were surrendered to the United States”). In 1982, in re-codifying the MRA at its present location in section 3302, Congress shortened the phrase to its current form by (among other things) deleting “the use of.” Act of Sept. 13, 1982, Pub. L. No. 97-258, 96 Stat. 877, 948. But the 1982 statute itself explained that Congress’s purpose was simply “[t]o revise, codify, and enact without substantive change certain general and permanent laws, related to money and finance.” Id. at 877 (emphasis added). This Office repeatedly has recognized that the 1982 revision of the MRA was not intended to work any substantive changes but rather to eliminate unnecessary words. E.g., Application of 31 U.S.C. § 3302(b) to Settlement of Suit Brought by the United States, 7 Op. O.L.C. 36, 37 n.3 (1983). This understanding also finds support in the background principle that “‘it will not be inferred that Congress, in revising and consolidating the laws, intended to change their effect unless such intention is clearly expressed.’” Finley v. United States, 490 U.S. 545, 554 (1989) (quoting Anderson v. Pac. Coast S.S. Co., 225 U.S. 187, 199 (1912)). With this understanding of the MRA’s text, it is clear that personal convenience fees, such as you have described, are not money received “for the Government.” Rather, they are “for” the event planner. The fees are not used, and are not intended to be used, by or for the benefit of the host agency that hires the event planner. The host agency makes no claim to the fees; apart from the question of the MRA’s applicability, the planner “is under no duty to turn over any portion to the federal government,” but rather “the monies belong to” the contractor. Thomas v. Network Solutions, Inc., 176 F.3d 500, 511 (D.C. Cir. 1999). The conference attendees pay the fees to the event planner so that they can obtain meals, lodging, and refreshments from the planner. The planner in turn accepts the fees to cover its costs in providing these goods and services to the attendees. The fees are not “available to the United States for disposition on its own behalf,” Undercover Operations at 4, “at the disposal of the United States,” id., or “surrendered to the United States,” id. at 6. Nor do the personal convenience fees compensate the event planner for any contractual obligation that the host agency owes to it, or enable the agency to avoid expending appropriations on “services that statutes required the agenc[y] to perform.” Thomas, 176 F.3d at 511. In Thomas, the court approved retention by the private Network Solutions of fees it collected for registering internet domain names because, among other things, performing such registration was not a duty of the National Science Foundation. Similarly, the Comptroller General has recog- 135 Opinions of the Office of Legal Counsel in Volume 30 nized that a “government official or agent is deemed to receive money for the government under the [MRA] if the money is to be used to bear the expenses of the government or pay government obligations.” SBA’s Imposition of Oversight Review Fees on PLP Lenders, B-300,248, 2004 WL 77861, at *7 (emphasis added). The Comptroller General concluded that the Small Business Administration (“SBA”) had violated the MRA by imposing fees on lenders of SBAguaranteed loans for reviews that the SBA was required by statute to conduct, and which the lenders paid to contractors who helped to conduct the reviews, because “the review fees paid by the lenders substitute for payment that SBA would otherwise make.” Id. at *9. In the two subsequent Comptroller General opinions discussed above in Part I, the Comptroller General cited this 2004 opinion in general, without discussion. See NIH, 2005 WL 502825, at *6; Contractors, 2006 WL 39435, at *1. Here, the host agency has no obligation, statutory or contractual, to provide meals, lodging, or refreshments to conference attendees. The fees are not “to be used in bearing the expenses of the administration of the Government and paying the obligations of the United States,” Undercover Operations at 4 (internal quotation marks omitted), or by an agency “to offset expenses” of its operations, id. at 8. Thus, the personal convenience fees are not received “for the Government” and so are not subject to the MRA. C. KEVIN MARSHALL Deputy Assistant Attorney General Office of Legal Counsel 136

Write a legal research memo on the following topic.

Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose” Under DEA Regulations A physician’s assisting in a patient’s suicide, even in a manner permitted by state law, is not a “legitimate medical purpose” within the meaning of a Drug Enforcement Agency regulation, and accordingly dispensing controlled substances for this purpose violates the Controlled Substances Act, which the DEA regulation implements. June 27, 2001 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL I. Background ...................................................................................................... 136 II. Physicians Are Regulated Under the Controlled Substances Act ................... 137 III. Dispensing Controlled Substances to Assist in Suicide Does Not Serve a “Legitimate Medical Purpose”........................................................................ 140 A. Case Law ................................................................................................. 140 B. State and Federal Policy .......................................................................... 142 C. Views of the Medical and Nursing Professions ....................................... 145 IV. The Existence of a State Law Permitting Physician-Assisted Suicide Does Not Immunize a Physician from the General Requirements of the CSA ................................................................................................................ 150 V. The CSA Contemplates Concurrent Federal and State Regulation of Medical Practices Involving Controlled Substances....................................... 152 VI. The CSA’s Preemption Provision Is Consistent with This Interpretation ..... 155 VII. The DEA Had the Authority to Promulgate and Interpret a Regulation Concerning Whether Dispensing a Controlled Substance Has a “Legitimate Medical Purpose”........................................................................ 157 VIII. Conclusion .................................................................................................. 160 You have asked for our opinion whether a physician who assists in a patient’s suicide by prescribing a controlled substance has a “legitimate medical purpose” within the meaning of a regulation of the Drug Enforcement Administration (“DEA”), 21 C.F.R. § 1306.04(a) (2000), 1 if the physician is immune from liability 1 The DEA regulation was promulgated pursuant to a delegation of the Attorney General’s broad authorities under the Controlled Substances Act, 21 U.S.C. §§ 801-971 (1994 & Supp. II 1996) (the CSA or Act), to “promulgate rules and regulations . . . relating to the registration and control of the manufacture, distribution and dispensing of controlled substances and to the registration and control of regulated persons and of regulated transactions,” 21 U.S.C. § 821, and to “promulgate and enforce any rules, regulations, and procedures which he may deem necessary and appropriate for the efficient execution of his functions under this [title].” Id. § 871(b). See also id. § 871(a) (authority of Attorney General to delegate CSA functions); 28 C.F.R. § 0.100 (2000) (delegation to DEA); Touby v. United 135 227-329 VOL_25_PROOF.pdf 145 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 under a state law such as the Oregon “Death with Dignity Act” for assisting in a suicide in such a manner. 2 In our view, assisting in suicide, even in a manner permitted by state law, is not a “legitimate medical purpose” under the DEA regulation, and accordingly dispensing controlled substances for this purpose violates the Controlled Substances Act, which the DEA regulation implements.* I. Background The Oregon “Death with Dignity Act,” which legalized physician-assisted suicide under certain circumstances, was originally approved by Oregon voters on November 8, 1994, and went into effect on October 27, 1997. 3 Prior to the effective date of the Oregon law, Representative Henry J. Hyde, Chairman of the House Judiciary Committee, and Senator Orrin G. Hatch, Chairman of the Senate Judiciary Committee, wrote to the Administrator of the DEA, Thomas A. Constantine, requesting a determination whether the CSA prohibits the use of controlled substances for the purpose of assisting in a suicide. 4 Administrator Constantine replied on November 5, 1997, concluding “that delivering, dispensing or prescribing a controlled substance with the intent of assisting a suicide would not be under any current definition a ‘legitimate medical purpose’” and thus would violate the CSA. 5 States, 500 U.S. 160, 169 (1991) (upholding Attorney General’s authority to delegate CSA functions to DEA). 2 The “Death with Dignity Act” is codified at 3 Oregon Revised Statutes (O.R.S.) §§ 127.800127.995 (1999). * Editor’s Note: Relying upon the analysis set forth in this memorandum opinion, the Attorney General subsequently promulgated an interpretive rule, which provided that “assisting suicide is not a ‘legitimate medical purpose’ within the meaning of 21 C.F.R. § 1306.04 (2001), and that prescribing, dispensing, or administering federally controlled substances to assist suicide violates the Controlled Substances Act.” 66 Fed. Reg. 56,607, 56,608 (Nov. 9, 2001). In Gonzales v. Oregon, 546 U.S. 243 (2006), the Supreme Court held that the Attorney General was not statutorily authorized to issue the interpretive rule. Id. at 274-75. 3 On the circumstances surrounding the adoption of the Oregon “Death with Dignity Act” and a description of its provisions, see generally Mark C. Siegel, Lethal Pity: The Oregon Death With Dignity Act, Its Implications for the Disabled, and the Struggle for Equality in an Able-Bodied World, 16 Law & Ineq. 259, 270- 76 (1998). 4 Letter for Thomas A. Constantine, Administrator, Drug Enforcement Administration, from Henry J. Hyde, Chairman, Committee on the Judiciary, U.S. House of Representatives, and Orrin G. Hatch, Chairman, Committee on the Judiciary, U.S. Senate (July 25, 1997), reprinted in S. Rep. No. 105-372, at 7 n.6 (1988) (“Hyde Letter”) (“In our view, assisting in a suicide by prescribing or filling a prescription for a controlled substance cannot be a ‘legitimate medical purpose’ under DEA regulations, especially when the practice is not reasonable and necessary to the diagnosis and treatment of disease and injury, legitimate health care, or compatible with the physician’s role as healer.”). 5 Letter for Orrin G. Hatch, Chairman, Committee on the Judiciary, U.S. Senate, from Thomas A. Constantine, Administrator, Drug Enforcement Administration at 1-2 (Nov. 5, 1997), reprinted in S. Rep. No. 105-372, at 8 n.9 (1998) (“Constantine Letter”). 136 227-329 VOL_25_PROOF.pdf 146 10/22/12 11:10 AM Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose” Within a month, the Oregon Deputy Attorney General, David Schuman, wrote to the United States Department of Justice on December 3, 1997, arguing that “the CSA is addressed to the problems of the abuse and trafficking of controlled substances. In enacting and later amending the CSA, Congress had no intention of regulating medical practices that are legal under state law and that have no relation to drug abuse or trafficking.” 6 Deputy Attorney General Schuman concluded that the DEA had no authority to regulate medical practices authorized by state law and unrelated to drug abuse or trafficking. On June 5, 1998, Attorney General Janet Reno reversed the interpretation of DEA Administrator Constantine, concluding that “the CSA does not authorize DEA to prosecute, or to revoke the DEA registration of, a physician who has assisted in a suicide in compliance with Oregon law.” Specifically, Attorney General Reno stated: “There is no evidence that Congress, in the CSA, intended to displace the states as the primary regulators of the medical profession, or to override a state’s determination as to what constitutes legitimate medical practice in the absence of a federal law prohibiting that practice.” 7 II. Physicians Are Regulated Under the Controlled Substances Act The basic domestic drug trafficking provision of the CSA, 21 U.S.C. § 841, governs physicians’ prescriptions of controlled substances. Section 841(a)(1) makes it unlawful for “any person knowingly or intentionally . . . to . . . dispense, a controlled substance.” The term “dispense” is defined to “mean[] to deliver a controlled substance to an ultimate user . . . by, or pursuant to the lawful order of, a practitioner . . . .” 21 U.S.C. § 802(10). A “practitioner” includes a “physician . . . licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices . . . to . . . dispense . . . a controlled substance in the course of professional practice.” Id. § 804(21). Although section 841(a)(1) generally prohibits the dispensing of controlled substances, the statute does permit such action if “authorized by this subchapter.” 21 U.S.C. § 841(a). One such form of authorization is found in the CSA’s provisions dealing with physician “registration.” See id. § 822(b) (“Persons registered by the Attorney General . . . to . . . dispense controlled substances . . . are authorized to . . . dispense such substances . . . to the extent authorized by their registration and in conformity with the other provisions of this subchapter.”). 6 Letter for Jonathan Schwartz, Principal Associate Deputy Attorney General, United States, from David Schuman, Deputy Attorney General, Oregon at 7 (Dec. 3, 1997) (“Oregon Deputy Attorney General Letter”). 7 Letter for Henry J. Hyde, Chairman, Committee on the Judiciary, U.S. House of Representatives, from Janet Reno, Attorney General at 1 (June 5, 1998), reprinted in S. Rep. No. 105-372, at 9 n.10 (1998) (“Reno Letter”) (“Adverse action against a physician who has assisted in a suicide in full compliance with the Oregon Act would not be authorized by the [CSA]”). 137 227-329 VOL_25_PROOF.pdf 147 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 Physicians may apply to the DEA (which acts here as the Attorney General’s delegate) for registration permitting them to prescribe and administer controlled substances. Section 823(b) provides that the DEA shall register qualified applicants unless it “determines that . . . such registration is inconsistent with the public interest.” This determination is to be based on any of five factors identified in the statute, including “such other factors as may be relevant to and consistent with the public health and safety.” Id. § 823(b)(5). “[T]he scheme of the [CSA], viewed against the background of the legislative history, reveals an intent to limit a registered physician’s dispensing authority to the course of his ‘professional practice.’ . . . Implicit in the registration of a physician is the understanding that he is authorized only to act ‘as a physician.’ . . . [R]egistration is limited to the dispensing and use of drugs ‘in the course of professional practice or research.’ Other provisions throughout the Act reflect the intent of Congress to confine authorized medical practice within accepted limits.” United States v. Moore, 423 U.S. 122, 140-42 (1975). Although section 841(a) does not, in terms, state that a physician is authorized to dispense controlled substances only for a legitimate medical purpose, that limitation appears to be implicit in the statute, see Moore, 423 U.S. at 137 n.13, and has been made explicit by DEA regulation. 8 The relevant regulation reads: A prescription issued for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice . . . . An order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate and authorized research is not a prescription within the meaning and intent of section 309 of the Act (21 U.S.C. 829) and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances. 21 C.F.R. § 1306.04(a) (emphasis added). Where a physician dispenses controlled substances without a “legitimate medical purpose” under 21 C.F.R. § 1306.04(a), the physician violates several provisions of the CSA, including sections 829 and 841(a)(1). If such dispensing without a legitimate medical purpose is proven in a criminal case, the physician may be subject to criminal penalties under 21 U.S.C. §§ 841(a)(1) (felony) and 842(a)(1) 8 The courts have found no distinction between the statutory phrase “in the course of professional practice” and the regulatory phrase “legitimate medical purpose.” See United States v. Rosenberg, 515 F.2d 190, 193 (9th Cir. 1975), cert. denied, 423 U.S. 1031 (1975); cf. United States v. Kirk, 584 F.2d 773, 784 (6th Cir. 1978), cert. denied, 439 U.S. 1048 (1978); United States v. Plesons, 560 F.2d 890, 897 n.6 (8th Cir. 1977), cert. denied, 434 U.S. 966 (1977). 138 227-329 VOL_25_PROOF.pdf 148 10/22/12 11:10 AM Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose” (misdemeanor). See Moore, 423 U.S. at 131 (holding that registered physician can be prosecuted and convicted under section 841(a)(1) for dispensing controlled substances outside the usual course of professional practice). Even without a criminal prosecution or conviction, the DEA may initiate administrative proceedings to suspend or revoke the registration of a physician based on evidence that the physician dispensed controlled substances without a legitimate medical purpose under 21 C.F.R. § 1306.04(a). In an administrative proceeding, the government must prove, by a preponderance of the evidence, that the physician dispensed in violation of section 1306.04(a), and that, as a result, the physician’s continued registration would be inconsistent with the public interest. See 21 U.S.C. § 824(a)(4) (applying public interest standard of section 823(f) to administrative proceedings for suspension or revocation of registration granted under section 823); see generally Robert G. Hallermeier, M.D., Continuation of Registration with Restrictions, 62 Fed. Reg. 26,818 (1997) (administrative proceeding in which DEA sought revocation of physician’s federal registration). 9 Nothing in the language of the CSA or of the relevant DEA regulations requires that the physician be shown to have violated state law in order to be subject to criminal sanctions under sections 829 or 841(a), or to suspension or revocation of federal registration under section 824(a)(4). Indeed, of the five separate grounds listed in section 824(a)(4) for adverse administration action, only two directly concern state law sanctions.10 Further, as we shall discuss in detail below, Congress added the “public interest” standard in section 824(a)(4) in order to permit the Attorney General to take adverse administrative action against a registrant in cases in which the registrant’s wrongful conduct might not have been sanctioned or sanctionable under state law. 9 We note that practitioners have lost or been denied federal registrations necessary to prescribe controlled substances because they have prescribed controlled substances used in suicides and other lethal overdoses. See, e.g., Hugh I. Schade, M.D., Denial of Application, 60 Fed. Reg. 56,354 (1995); José R. Castro, M.D., Denial of Application, 62 Fed. Reg. 16,189 (1997 ); Samuel Fertig, M.D., Denial of Application, 49 Fed. Reg. 6577 (1984); Murray J. Walker, M.D., Revocation of Registration, 55 Fed. Reg. 5306 (1990); see also Townwood Pharmacy, Revocation of Registration, 63 Fed. Reg. 8477 (1998). 10 Section 824(a)(2) authorizes the Attorney General to suspend or revoke a registration upon a finding that the registrant “has been convicted of a felony under . . . any . . . law . . . of any State, relating to any . . . controlled substance,” while section 824(a)(3) authorizes such action if the registrant “has had his State license or registration suspended, revoked, or denied . . . and is no longer authorized by State law to engage in . . . dispensing . . . controlled substances . . . or has had the suspension, revocation, or denial of his registration recommended by competent State authority.” 139 227-329 VOL_25_PROOF.pdf 149 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 III. Dispensing Controlled Substances to Assist in Suicide Does Not Serve a “Legitimate Medical Purpose” We understand that physician-assisted suicide typically involves the use of a lethal dose of a combination of drugs, including controlled substances. First, the patient is sedated using either a barbiturate (e.g., sodium pentothal), or an opiate (e.g., morphine). Then, one or more drugs are used to paralyze the muscles and/or to stop the heart. The sedatives involved in these procedures are controlled substances under the CSA. Most lawfully available opiates and barbiturates are in Schedule II of the CSA, the most strictly regulated category of substances available for non-research purposes. See 21 C.F.R. § 1308.12(b), (c), (e) (2000). In our opinion, assisting in suicide is not a “legitimate medical purpose” within the meaning of 21 C.F.R. § 1306.04(a) that would justify a physician’s dispensing controlled substances. That interpretation, which the DEA itself originally adopted before being overruled by Attorney General Reno, is the best reading of the regulatory language: it is firmly supported by the case law, by the traditional and current policies and practices of the federal government and of the overwhelming majority of the states, and by the dominant views of the American medical and nursing professions. A. Case Law The case law demonstrates that the CSA forbids dispensing controlled substances except in the course of accepted medical practice, and that physicianassisted suicide is outside the boundaries of such practice. In Moore, the Supreme Court in effect approved a jury instruction under which a physician would be held criminally liable for dispensing controlled substances in violation of 21 U.S.C. § 841(a) unless the physician was acting “in the usual course of professional practice and in accordance with a standard of medical practice generally recognized and accepted in the United States.” Moore, 423 U.S. at 139. The lower courts have followed Moore in requiring that a physician’s actions conform to standards “generally recognized and accepted” throughout the nation. For example, in United States v. Vamos, 797 F.2d 1146, 1153 (2d Cir. 1986), the court stated that: To permit a practitioner to substitute his or her views of what is good medical practice for standards generally recognized and accepted in the United States would be to weaken the enforcement of our drug laws in a critical area. As the Supreme Court noted in Moore, “Congress intended the CSA to strengthen rather than weaken the prior drug laws.” 140 227-329 VOL_25_PROOF.pdf 150 10/22/12 11:10 AM Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose” As the courts have found, physician-assisted suicide has never been, and is not now, a generally recognized and accepted medical practice in the United States. On the contrary, the American legal system and the American medical profession alike have consistently condemned the practice in the past and continue to do so. In Washington v. Glucksberg, 521 U.S. 702 (1997), the Supreme Court upheld a state prohibition against causing or aiding a suicide against a challenge that, as applied to physicians assisting terminally ill, mentally competent patients, the prohibition offended the requirements of substantive due process. See id. at 709 n.6 (describing holding). The Court began its analysis by examining “our Nation’s history, legal traditions, and practices,” id. at 710. The Court found that “[i]n almost every State—indeed, in almost every western democracy—it is a crime to assist a suicide. The States’ assisted-suicide bans are not innovations. Rather, they are longstanding expressions of the States’ commitment to the protection and preservation of all human life.” Id. (footnote omitted).11 After tracing “the AngloAmerican common law tradition” that “for over 700 years” “has punished or otherwise disapproved of both suicide and assisted suicide,” id. at 711, the Court referred to the Oregon “Death With Dignity Act,” which legalized physicianassisted suicide for competent, terminally ill adults. The Court’s discussion made plain that the Oregon statute represented an exceptional case, contrary both to longstanding historical practices and to contemporary trends in the law: Since the Oregon vote, many proposals to legalize assisted-suicide laws have been and continue to be introduced in the States’ legislatures, but none has been enacted. And just last year [i.e., 1996], Iowa and Rhode Island joined the overwhelming majority of States explicitly prohibiting assisted suicide. . . . Also, on April 30, 1997, President Clinton signed the Federal Assisted Suicide Funding Restriction Act of 1997, which prohibits the use of federal funds in support of physician-assisted suicide. Id. at 717-18 (citations and footnotes omitted). Further, the Court discussed the “serious, thoughtful examinations of physician-assisted suicide and other similar issues” now going on in the states. Id. at 719. It referred in particular to the work of New York State’s Task Force on Life and the Law, a commission composed of doctors, ethicists, lawyers, religious leaders and interested laymen charged with recommending public policy on issues raised by medical advances. The Court noted that after studying physician-assisted suicide, the Task Force had unanimously concluded that “[l]egalizing assisted suicide and euthanasia would pose 11 Accord Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 280 (1990) (“As a general matter, the States—indeed, all civilized nations—demonstrate their commitment to life by treating homicide as a serious crime. Moreover, the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide.”). 141 227-329 VOL_25_PROOF.pdf 151 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 profound risks to many individuals who are ill and vulnerable. . . . [T]he potential dangers of this dramatic change in public policy would outweigh any benefit that might be achieved.” Id. (internal quotation marks and citation omitted; ellipses in original). Summarizing its review of the American legal tradition’s view of assisted suicide, the Court said: Attitudes toward suicide itself have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, assisting suicide. Despite changes in medical technology and notwithstanding an increased emphasis on the importance of end-of-life decisionmaking, we have not retreated from this prohibition. Id. B. State and Federal Policy As detailed in Washington v. Glucksberg, state law and policy, with the sole exception of Oregon’s, emphatically oppose assisted suicide. Assisted suicide has long been prohibited at common law, see Glucksberg, 521 U.S. at 711,12 and at least forty states and territories have laws explicitly prohibiting the practice.13 “In the two hundred and five years of our [national] existence no constitutional right to aid in killing oneself has ever been asserted and upheld by a court of final jurisdiction.” Compassion in Dying v. Washington, 49 F.3d 586, 591 (9th Cir. 1995) (Noonan, J.), rehearing en banc granted, 62 F.3d 299 (9th Cir. 1995); vacated, 79 F.3d 790 (9th Cir. 1996) (en banc) (Reinhardt, J.) (state could not constitutionally prohibit physician-assisted suicide in cases of terminally ill competent adults), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). The only state supreme court to decide the matter has rejected recognition of an enforceable right to assisted suicide under that state’s constitution. Krischer v. McIver, 697 So.2d 97 (Fla. 1997). State statutes banning assisted suicide trace back a century or more in many cases. They have not been kept on the books through oversight or neglect: Many jurisdictions have expressly reconsidered these laws in recent years and reaffirmed them. In 1980, the American Law Institute conducted a thorough review of state laws on assist[ed] suicide in the United States and acknowledged the continuing widespread 12 See generally Thomas J. Marzen, Mary K. O’Dowd, Daniel Crone & Thomas J. Balch, Suicide: A Constitutional Right?, 24 Duq. L. Rev. 1, 71-75 (1985). 13 See Christine Neylon O’Brien & Gerald A. Madek, Physician-Assisted Suicide: New Protocol for a Rightful Death, 77 Neb. L. Rev. 229, 275 n.314 (1998). 142 227-329 VOL_25_PROOF.pdf 152 10/22/12 11:10 AM Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose” support for criminalization. Accordingly, it endorsed two criminal provisions of its own. In the 1990s, both New York and Michigan convened blue-ribbon commissions to consider the possibility of legalizing assisted suicide and euthanasia. The New York commission issued a thoughtful and detailed report unanimously recommending the retention of existing laws against assisting suicide and euthanasia. The Michigan panel divided on the issue, but the state legislature subsequently chose to enact a statute strengthening its existing common law ban against assisted suicide. . . . Meanwhile, repeated efforts to legalize the practice—in state legislatures and by popular referenda—have met with near-total failure. Neil M. Gorsuch, The Right to Assisted Suicide and Euthanasia, 23 Harv. J. L. & Pub. Pol’y 599, 639-41 (2000) (“Gorsuch”) (footnotes omitted). Federal policy fully accords with the views that prevail in every state except Oregon. As noted in Glucksberg, the Assisted Suicide Funding Restriction Act of 1997, Pub. L. No. 105-12, 111 Stat. 23, was signed into law on April 30, 1997. The Act was approved in the House of Representatives by a 398-to-16 vote and in the Senate by a 99-0 vote. The Act bans federal funding of assisted suicide, euthanasia, or mercy killing through Medicaid, Medicare, military and federal employee health plans, the veterans health care system, or other federally funded programs. In the “Findings” preceding the Act’s substantive restrictions, Congress stated that “[a]ssisted suicide, euthanasia, and mercy killing have been criminal offenses throughout the United States and, under current law, it would be unlawful to provide services in support of such illegal activities.” Id. § 2(a)(2). Then, after taking note that the Oregon “Death With Dignity Act” might soon become operative, see id. § 2(a)(3), Congress determined that it would “not provid[e] Federal financial assistance in support of assisted suicide, euthanasia, and mercy killing and intends that Federal funds not be used to promote such activities.” Id. § 2(a)(4). In general, Congress stated that its purpose was “to continue current Federal policy by providing explicitly that Federal funds may not be used to pay for items and services (including assistance) the purpose of which is to cause (or assist in causing) the suicide, euthanasia, or mercy killing of any individual.” Id. § 2(b). Even before the enactment of the Assisted Suicide Funding Restriction Act of 1997, it was the policy of the federal government not to recognize physicianassisted suicide as a legitimate medical practice. As Acting Solicitor General Walter Dellinger noted in 1996 in the United States brief in Glucksberg: The United States owns and operates numerous health care facilities which . . . do not permit physicians to assist patients in committing suicide by providing lethal dosages of medication. The Department 143 227-329 VOL_25_PROOF.pdf 153 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 of Veterans Affairs (VA), which operates 173 medical centers, 126 nursing homes, and 55 in-patient hospices, has a policy manual that . . . forbids “the active hastening of the moment of death.” . . . The military services, which operate 124 centers, the Indian Health service, which operates 43 hospitals, and the National Institutes of Health, which operate a clinical center, follow a similar practice . . . . No federal law . . . either authorizes or accommodates physician assisted suicide.14 Other federal agencies have taken similar views in the past. The Hyde Letter noted that “[t]he Health Care Financing Administration has stated that physicianassisted suicide is not ‘reasonable and necessary’ to the diagnosis and treatment of disease or injury and is therefore barred from reimbursement under Medicare.” Hyde Letter, supra note 4, at 1. Administrator Constantine’s reply stated that a review of “a number of cases, briefs, law review articles and state laws relating to physician-assisted suicide” and “a thorough review of prior administrative cases in which physicians have dispensed controlled substances for other than a ‘legitimate medical purpose’” demonstrated “that delivering, dispensing or prescribing a controlled substance with the intent of assisting a suicide would not be under any current definition a ‘legitimate medical purpose.’”15 Finally, federal medical policy since the enactment of the Assisted Suicide Funding Restriction Act also supports the conclusion that physician-assisted suicide is not a legitimate medical practice. In 1999, the Surgeon General sought to classify suicide as a serious public health problem and to intensify suicide prevention efforts, especially among high risk groups such as the sick and elderly, who often suffer from undiagnosed depression and inadequately treated pain.16 Dispensing controlled substances to assist the suicides of some of the most 14 Brief for the United States as Amicus Curiae Supporting Petitioners at 1-2, Washington v. Glucksberg, 521 U.S. 702 (1997) (No. 96-110) (“United States Brief in Glucksberg”). 15 Constantine Letter, supra note 5, at 1-2. Also relevant to the past practice of federal agencies is United States v. Rutherford, 442 U.S. 544 (1979), which involved a challenge by terminally ill cancer patients to the determination of the Food and Drug Administration (“FDA”) that Leatrile constituted a “new drug” for purposes of the Federal Food, Drug and Cosmetic Act because it was not generally regarded as safe or effective. In upholding the FDA’s determination, the Court rejected the plaintiffs’ argument that an implied exception from the Act was justified because the safety and effectiveness standards could have no reasonable application to terminally ill patients. It pointed out that “the FDA has never made exception [from the FDA’s safety standards] for drugs used by the terminally ill.” Id. at 553. 16 See generally U.S. Public Health Service, Dep’t of Health and Human Services, The Surgeon General’s Call to Action to Prevent Suicide (1999), available at http://www.surgeongeneral.gov/ library/calls/index.html (last visited Aug. 3, 2012); see also Improving Palliative Care for Cancer: Summary and Recommendations (Kathleen M. Foley & Hellen Gelbard, eds., 2001) (finding depression common among terminally ill cancer patients, and recommending greater emphasis on palliative care). 144 227-329 VOL_25_PROOF.pdf 154 10/22/12 11:10 AM Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose” vulnerable members of American society is manifestly inconsistent with the Surgeon General’s policy.17 C. Views of the Medical and Nursing Professions The leading organizations of the American medical profession have repeatedly, and recently, expressed the profession’s condemnation of physician-assisted 17 See United States Brief in Glucksberg at 19. Medical evidence suggests that many terminally ill patients who seek death do so not as a result of rational deliberation, but rather because of depression or mental illness. Moreover, given modern palliative care techniques, pain-avoidance cannot justify the general practice of assisted suicide. See Susan R. Martyn and Henry J. Bourguignon, Now Is The Moment to Reflect: Two Years of Experience With Oregon’s Physician-Assisted Suicide Law, 8 Elder L.J. 1, 14-16 (2000) (footnotes omitted) (“First, the rate of depression among terminally ill patients appears to be ‘much higher than would be expected in the general population.’ Recent studies indicate that fully two-thirds of those requesting assisted suicide suffer from depression. Second, seriously ill patients often require powerful medications which can distort the patient’s thoughts and feelings. ‘For many patients, the progression of disease will result in the impairment of decisionmaking capacity, either from the effects of the disease itself or those of drug treatment.’ Third, seriously ill patients may also suffer physical and mental disability, have short attention spans, or find it difficult to concentrate. They may have difficulty hearing or thinking through complex subjects. . . . Physicians, psychiatrists, and psychologists, like anyone else who deals with a seriously ill, mentally or physically disabled patient can all too easily conclude that the patient’s request for assisted suicide is reasonable and therefore competent. The greatest threat is that persons with mental or physical disabilities or depression, especially those who burden others, will readily be found competent to request assistance in suicide. . . . Depression, the major precursor of suicidal intent, often worms its way into serious illnesses and, especially among the elderly, can remain undiagnosed and untreated. In fact, clinical studies now indicate that depression is the only factor that predicts suicidal intent or ideation. Indeed, Oregon physicians report that they recognized symptoms of depression in twenty percent of patients who sought suicide assistance.”); id. at 38-43 (describing significant recent innovations in palliative care, noting that states are increasingly enacting intractable pain legislation to assure physicians that adequate pain control is legally and medically required, and suggesting that legalizing physicianassisted suicide may inhibit advances in such care); New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context 11, 13 (1994) (“Studies that examine the psychological background of individuals who kill themselves show that 95 percent have a diagnosable mental disorder at the time of death. Depression, accompanied by symptoms of hopelessness and helplessness, is the most prevalent condition among individuals who commit suicide. . . . In one study of terminally ill patients, of those who expressed a wish to die, all met diagnostic criteria for major depression.”); Brief for American Geriatrics Soc. as Amicus Curiae at 7-9, Vacco v. Quill, 521 U.S. 793 (1997), Washington v. Glucksberg, 521 U.S. 702 (1997) (Nos. 95-1858, 96-100) (1996) (hospice and palliative care programs relieve pain and other severe symptoms for those near death and should be preferred treatment options; also noting high correlation between cognitive or emotional dysfunctioning such as depression and suicide inquiries); Leon R. Kass and Nelson Lund, Physician-Assisted Suicide, Medical Ethics and the Future of the Medical Profession, 35 Duq. L. Rev. 395, 406 (1996) (“Kass & Lund”) (“Because the quick-fix of suicide is easy and cheap, it will in many cases replace the use of hospice and other humanly-engaged forms of palliative care, for there will be much less economic incentive to continue building and supporting social and institutional arrangements for giving humane care to the dying.”); Yale Kamisar, Against Assisted Suicide—Even a Very Limited Form, 72 U. Detroit Mercy L. Rev. 735, 744 (1995) (“Although pain is notoriously undertreated in this country, ‘according to experts in the field of pain control, almost all terminally ill patients can experience adequate relief with currently available treatments.’”) (footnotes omitted); Gorsuch at 691. 145 227-329 VOL_25_PROOF.pdf 155 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 suicide. The American Medical Association (“AMA”), joined by the American Nurses Association (“ANA”), the American Psychiatric Association, and 43 other national medical organizations, filed a brief in the Glucksberg case declaring that “[t]he ethical prohibition against physician-assisted suicide is a cornerstone of medical ethics” and that physician-assisted suicide is “‘fundamentally incompatible with the physician’s role as healer.’”18 More specifically, the AMA’s Brief said: The power to assist in intentionally taking the life of a patient is antithetical to the central mission of healing that guides both medicine and nursing. It is a power that most physicians and nurses do not want and could not control. Once established, the right to physicianassisted suicide would create profound danger for many ill persons with undiagnosed depression and inadequately treated pain, for whom physician-assisted suicide rather than good palliative care could become the norm. At greatest risk would be those with the least access to palliative care—the poor, the elderly, and members of minority groups. Amici acknowledge that many patients today do not receive proper treatment for their pain, depression, and psychological distress. Nevertheless, physician-assisted suicide is not the right answer to the problem of inadequate care. Although for some patients it might appear compassionate intentionally to cause death, institutionalizing physician-assisted suicide as a medical treatment would put many more patients at serious risk for unwanted and unnecessary death. ... The ethical prohibition against physician-assisted suicide is a cornerstone of medical ethics. Its roots are as ancient as the Hippocratic oath that a physician “will neither give a deadly drug to anybody if asked for it, nor . . . make a suggestion to this effect,” and the merits of the ban have been debated repeatedly in this nation since the late nineteenth century. Most recently, the AMA has reexamined and reaffirmed the ethical prohibition against physician-assisted suicide in 1977, 1988, 1991, 1993, and 1996.19 18 Brief for American Medical Association et al. as Amici Curiae at 5, Washington v. Glucksberg, 521 U.S. 702 (1997) (No. 96-110) (1996). 19 Id. at 2-5. 146 227-329 VOL_25_PROOF.pdf 156 10/22/12 11:10 AM Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose” As the Court noted in Glucksberg, 521 U.S. at 731, the AMA’s Code of Ethics condemns physician-assisted suicide as fundamentally incompatible with the physician’s role as a healer. AMA, Code of Ethics § 2.211 (1994); see also Council on Ethical and Judicial Affairs, Decisions Near the End of Life, 267 JAMA 2229, 2233 (1992). Largely on the basis of the AMA’s position, the Court found that the State of Washington had “an interest in protecting the integrity and ethics of the medical profession” when it prohibited physician-assisted suicide. Glucksberg, 521 U.S. at 731; see also Compassion in Dying, 49 F.3d at 592 (citation omitted) (“From the Hippocratic Oath with its promise ‘to do no harm,’ . . . to the AMA’s code, the ethics of the medical profession have proscribed killing.”). The AMA took the same unequivocal position in hearings before Congress on the subject of assisted suicide. See Assisted Suicide in the United States: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, United States House of Representatives, 104th Cong. 309-11 (1996) (statement of Lonnie L. Bristow, M.D., Pres., AMA). Dr. Bristow testified: The AMA believes that physician-assisted suicide is unethical and fundamentally inconsistent with the pledge physicians make to themselves to healing and to life. . . . AMA takes seriously its role as a leader in issues of medical and professional ethics. The AMA’s “code of ethics” serves as the profession’s defining document as to what is right versus what is wrong in medical practice, and such are critical to our professionalism and our role as healers. My primary obligation as a physician is to first be an advocate for my patient. If my patient in understandably apprehensive or afraid of his or her own mortality, I need to provide information, support, and comfort, not help them avoid the issues of death. Id. at 310. The American Nurses Association (“ANA”), a national organization representing 2.2 million registered nurses, submitted written testimony to Congress at the same hearing. See id. at 438-50. Included in the ANA’s submission was the organization’s Position Statement on Assisted Suicide (1994). The Position Statement succinctly summarizes the ANA’s view of nurse-assisted suicide as follows: The American Nurses Association (ANA) believes that the nurse should not participate in assisted suicide. Such an act is in violation of the Code for Nurses with Interpretive Statements (Code for Nurses) and the ethical traditions of the profession. 147 227-329 VOL_25_PROOF.pdf 157 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 Id. at 443. The “Rationale” in the Position Statement sets forth comprehensively the basis of the ANA’s view. It states in part: • The profession of nursing is built upon the Hippocratic tradition “do no harm” and an ethic of moral opposition to killing another human being. The ethical framework of the profession as articulated through the Code for Nurses explicitly prohibits deliberately terminating the life of any human being. • Nursing has a social contract with society that is based on trust and therefore patients must be able to trust that nurses will not actively take human life. . . . Nurse participation in assisted suicide is incongruent with the accepted norms and fundamental attributes of the profession. . . . • While there may be individual patient cases that are compelling, there is high potential for abuses with assisted suicide, particularly with vulnerable populations such as the elderly, poor and disabled. These conceivable abuses are even more probable in a time of declining resources. The availability of assisted suicide could forseeably weaken the goal of providing quality care for the dying. Id. at 445. Scholars have observed that the norms of the medical and nursing professions with respect to physician-assisted suicide, which reflect the experience and the reflection of centuries, are more compelling now than ever. See Kass & Lund, supra note 17, at 423 (“Given the great pressures threatening medical ethics today—including, among other factors, a more impersonal practice of medicine, the absence of a lifelong relationship with a physician, the push toward managed care, and the financially-based limitation of services—a bright line rule regarding medically-assisted suicide is a bulwark against disaster.”); see also Seth F. Kreimer, Does Pro-Choice Mean Pro-Kevorkian? An Essay on Roe, Casey, and the Right to Die, 44 Am. U. L. Rev. 803, 841 (1995) (“Particularly with the emergence of cost controls and managed care in the United States, the danger of tempting health care providers to persuade chronic patients to minimize costs by ending it all painlessly is no fantasy.”). To be sure, it has been claimed that physician-assisted suicide has become a common, if also usually clandestine, practice.20 But the claim is questionable. The American Geriatrics Society, for example, has stated that the Society’s leadership “is unfamiliar with situations in which this is true, and it seems unlikely. Three- 20 See, e.g., Compassion in Dying, 79 F.3d at 811. 148 227-329 VOL_25_PROOF.pdf 158 10/22/12 11:10 AM Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose” quarters of all deaths happen in institutions where a regularized endeavor would require the collusion of a large number of persons, which seems implausible. Little reliable evidence characterizes the rate and nature of actual instances of [physician-assisted suicide].” Brief for American Geriatrics Soc. as Amicus Curiae at 10, Vacco v. Quill, 521 U.S. 793 (1997), Washington v. Glucksberg, 521 U.S. 702 (1997). Moreover, even if there were reliable evidence that unacknowledged physician-assisted suicide was not infrequent, that fact would hardly invalidate the normative judgments of the AMA and other medical groups that emphatically condemn the practice. By parity of reasoning, if it could be shown that physicians violated traditional medical canons of ethics more often that is usually supposed, e.g., by engaging in sexual relations with their patients or disclosing patient confidences, it would follow that the evidence of such deviations overturned the professional standards prohibiting such misconduct. Thus, the overwhelming weight of authority in judicial decisions, the past and present policies of nearly all of the states and of the federal government, and the clear, firm and unequivocal views of the leading associations within the American medical and nursing professions, establish that assisting in suicide is not an activity undertaken in the course of professional medical practice and is not a legitimate medical purpose. Indeed, we think it fair to say that physician-assisted suicide should not be considered a medical procedure at all. Here we follow an amicus brief filed in Glucksberg by a group of fifty bioethics professors, who declared that physician-assisted suicide “is not a medical procedure, and medicalizing an act runs the risk of making an otherwise unacceptable act appear acceptable.” Brief for Bioethics Professors as Amici Curiae Supporting Petitioners at 27, Vacco v. Quill, 521 U.S. 793 (1997), Washington v. Glucksberg, 521 U.S. 702 (1997) (Nos. 95-1858, 96-100). As this brief points out, assisted suicide does not require any medical knowledge whatever, nor does it necessarily depend on access to any prescribed drugs or to medical services. Indeed, the country’s most prominent partisan of assisted suicide, Jack Kevorkian, has often used the entirely non-medical method of carbon monoxide poisoning. See George J. Annas, Physician Assisted Suicide—Michigan’s Temporary Solution, 20 Ohio N.U.L. Rev. 561, 568 (1994). It is plainly a fallacy to assume that a procedure must be “medical” because it is performed by a physician rather than, say, by a family member, or because it involves the use of a drug that a physician has prescribed.21 21 The Oregon Deputy Attorney General’s Letter assumes, uncritically, that physician-assisted suicide, if authorized by state law, must be considered a “medical” practice that serves a “medical” purpose. See Oregon Deputy Attorney General Letter, supra note 6, at 7 (“[T]he CSA is addressed to the problems of the abuse and trafficking of controlled substances, [not to] regulating medical practices that are legal under state law and that have no relation to drug abuse or trafficking”). As we have argued above, it is far from obvious (to say no more) that assisting an individual to kill himself or herself must be considered a “medical” procedure. 149 227-329 VOL_25_PROOF.pdf 159 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 Accordingly, we conclude that assisting in suicide is not a “legitimate medical purpose” that would justify a physician’s dispensing controlled substances consistent with the CSA. IV. The Existence of a State Law Permitting Physician-Assisted Suicide Does Not Immunize a Physician from the General Requirements of the CSA The CSA establishes a uniform, nation-wide statutory scheme for regulating the distribution of controlled substances. Notwithstanding the traditional role of the states in regulating the practice of medicine,22 state law cannot abrogate the CSA or supersede its provisions in the event of conflict.23 Thus, the fact that assisting in suicide may be permitted in some cases for Oregon physicians under local law does not entail that they should be held immune from criminal prosecution or adverse administrative action under the CSA if they dispense a controlled substance when rendering that assistance. It is simply wrong to suggest, as the Deputy Attorney General of Oregon did, that the CSA does not reach “practices that are engaged in by physicians in accordance with state law.”24 The Supreme Court’s very recent decision in the so-called “medical marijuana” case, United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483 (2001), demonstrates the fallacy of attempting to read an implied immunity into the CSA for physicians who dispense controlled substances to assist suicides in a state in which such conduct is consistent with local law. In Oakland Cannabis Buyers, the Supreme Court addressed the question whether there was an implied “medical necessity” exception to the CSA’s general prohibition in 21 U.S.C. § 841(a)(1) on manufacturing and distributing marijuana. Marijuana is a “schedule I” controlled substance. For drugs on that schedule, there is but one express statutory exception, and that exception is available only for government-approved research projects. See 21 U.S.C. § 823(f); Oakland Cannabis Buyers, 532 U.S. at 491.25 Notwithstanding the fact that it did not fall within the sole express statutory exception, the defendant Cooperative argued that the statute should be read to include another, implied exception for “medical necessity.” The Supreme Court refused to read such an exception into the CSA. 22 See, e.g., Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347 (2001); Gade v. Nat’l Solid Wastes Management Ass’n, 505 U.S. 88, 108 (1992). 23 See, e.g., Rosenberg, 515 F.2d at 198 n.14. 24 See Oregon Deputy Attorney General Letter, supra note 6, at 6. 25 The controlled substances usually used in physician-assisted suicide are, as we have noted, schedule II substances, and accordingly are governed by a different regulatory regime from schedule I substances. In particular, registered practitioners may “dispense” schedule II, but not schedule I, substances. See 21 U.S.C. § 824(f). This distinction does not, however, affect the relevance of Oakland Cannabis Buyers to the questions considered in this memorandum. 150 227-329 VOL_25_PROOF.pdf 160 10/22/12 11:10 AM Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose” Because of the passage in a 1996 voter initiative of the Compassionate Use Act of 1996, Cal. Health & Safety Code Ann. § 11362.5 (West Supp. 2001), California laws prohibiting the possession and cultivation of marijuana now include an exception for a patient or primary caregiver who possesses or cultivates marijuana for the patient’s medical purposes upon the recommendation or approval of a physician. In the wake of the voter initiative, “medical cannabis dispensaries” were organized to meet the needs of qualified patients. The defendant was one such organization, and distributed marijuana to those it accepted as members. The United States sued the defendant in 1998, arguing that, “whether or not the Cooperative’s activities are legal under California law, they violate” section 841(a) of the CSA. Oakland Cannabis Buyers, 532 U.S. at 487. Despite being enjoined from distributing marijuana, the defendant continued to do so, and the United States accordingly initiated contempt proceedings. In defense, it was “contended that any distributions were medically necessary. Marijuana is the only drug, according to the Cooperative, that can alleviate the severe pain and other debilitating symptoms of the Cooperative’s patients.” Id. (citation omitted). The district court found the defendant in contempt, and declined to modify its injunction so as to permit marijuana distributions that were asserted to be medically necessary. Although the defendant’s appeal of the contempt order was mooted, its motion to modify the injunction presented a live controversy, and the court of appeals accepted the defendant’s argument that medical necessity was a legally cognizable defense under the CSA. The United States sought certiorari to review the court of appeals’ decision, and the Supreme Court granted the petition because the appellate decision below “raise[d] significant questions as to the ability of the United States to enforce the Nation’s drug laws.” Id. at 489. The Supreme Court flatly rejected the defendant’s claim of an implied medical necessity exception. “[T]o resolve the question presented, we need only recognize that a medical necessity exception for marijuana is at odds with the terms of the Controlled Substances Act. The statute, to be sure, does not explicitly abrogate the defense. But its provisions leave no doubt that the defense is unavailable.” Id. at 491 (footnote omitted). The question whether Oregon physicians may dispense controlled substances to assist in a suicide without violating the CSA is similar to (although it is of course not the same as) the question decided in Oakland Cannabis Buyers. In effect, the argument that such physicians do not violate the CSA depends on the assumption that because assisting suicide in that manner is permissible under state law, the CSA must be interpreted so that such dispensing is done “in the course of professional practice,” 21 U.S.C. § 802(21), and the DEA’s regulations must be read so that such actions serve “a legitimate medical purpose,” 21 C.F.R. § 1306.04(a). But a state cannot, by its unilateral action, take its physicians’ conduct out of the scope of otherwise nationally applicable prohibitions on the dispensing of controlled substances. The CSA contains no express immunity for 151 227-329 VOL_25_PROOF.pdf 161 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 such conduct in states in which physicians may assist suicides compatibly with local law, and it should not be construed in a manner that implies such an immunity.26 V. The CSA Contemplates Concurrent Federal and State Regulation of Medical Practices Involving Controlled Substances Like the Court in Oakland Cannabis Buyers, we share the concern for “‘showing respect for the sovereign States that comprise our Federal Union.’” Oakland Cannabis Buyers, 532 U.S. at 494 n.7 (quoting Stevens, J., concurring in judgment). But we think it shows no disrespect for the principles of federalism to conclude that the states cannot, by their unilateral actions, shelter their physicians from the federal narcotics code. Although the states are the primary regulators of the practice of medicine, they are not its exclusive regulators: since the Harrison Narcotics Act of 1914, the federal government has regulated the practice of medicine insofar as it involved the dispensing of controlled drugs.27 Physicians were often prosecuted under the Harrison Act for prescribing drugs in a manner that did not comport with federal statutory requirements or that fell outside the course of professional practice as determined by the federal courts.28 Further, the Supreme Court repeatedly upheld the authority of federal prosecutors to bring such cases against physicians over the objection that the Harrison Act impermissibly encroached on a regulatory power exclusively reserved to the states.29 The CSA 26 We note that the Reno Letter, supra note 7, at 3-4, expressly recognized that its conclusion was “limited to these particular circumstances” in Oregon (and, should any other State follow Oregon, such a State), and affirmed that “[a]dverse action under the CSA may well be warranted in other circumstances: for example, where a physician assists in a suicide in a state that has not authorized the practice under any conditions.” Construing the CSA and its regulations as Attorney General Reno did would accordingly cause the Act’s prohibitions to apply differently from one state to another, and would in effect grant the states the power to immunize their physicians from liability under otherwise generally applicable federal law. 27 See Moore, 423 U.S. at 132 (“Physicians who stepped outside the bounds of professional practice could be prosecuted under the Harrison Act (Narcotics) of 1914, 38 Stat. 785, the predecessor of the CSA.”); id. at 139 (“Under the Harrison Act physicians who departed from the usual course of medical practice were subject to the same penalties as street pushers with no claim to legitimacy.”). 28 See, e.g., United States v. Behrman, 258 U.S. 280 (1922) (sustaining conviction of physician over dissent’s argument that defendant should have been assumed to have given drugs in the regular course of his practice and in good faith); Jin Fuey Moy v. United States, 254 U.S. 189, 194 (1920) (sustaining conviction; Court states that “[m]anifestly the phrases ‘to a patient’ and ‘in the course of his professional practice only’ are intended to confine the immunity of a registered physician, in dispensing the narcotic drugs mentioned in the act, strictly within the appropriate bounds of a physician’s . . . practice.”); Webb v. United States, 249 U.S. 96, 99-100 (1919) (holding that to call the defendant’s order for the use of morphine a “physician’s prescription” would “be so plain a perversion of meaning that no discussion of the subject is required.”). 29 See Nigro v. United States, 276 U.S. 332, 353-54 (1928) (upholding constitutionality of Harrison Act as revenue measure despite claim that it infringed on states’ police power to regulate intrastate purchases of commodities); Linder v. United States, 268 U.S. 5, 18 (1925) (prosecution of physician 152 227-329 VOL_25_PROOF.pdf 162 10/22/12 11:10 AM Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose” was intended “to strengthen rather than to weaken the prior drug laws.”30 Consequently, dispensing controlled substances has been an aspect of medical practice that the federal government has regulated concurrently with the states for some eighty-seven years.31 Both in enacting the CSA in 1970 and in amending it in 1984, Congress was well aware that enforcement of the federal law would unavoidably necessitate federal regulation of medicine concurrent with, and in some circumstances designedly superseding, state regulation. In the House Report on what is now 42 U.S.C. § 257a,32 the Committee on Interstate and Foreign Commerce noted the difficulty but found it inescapable: Although the committee is concerned about the appropriateness of having Federal officials determine the appropriate method of the practice of medicine, it is necessary to recognize that for the last 50 years this is precisely what has happened, through criminal prosecution of physicians whose methods of prescribing narcotic drugs have not conformed to the opinion of Federal prosecutors of what constitutes appropriate methods of professional practice. H.R. Rep. No. 91-1444, pt. 1, at 15 (1970), reprinted in 1970 U.S.C.C.A.N. 4566, 4581 (emphasis added). Further, Congress revisited the CSA in 1984 in order to add amendments that expanded federal authority at the expense of the states and were specifically directed against the misuse of federally regulated prescription drugs (that otherwise have legitimate medical uses) in a manner that did not violate state law. The expanded federal authority was accomplished by adding “inconsistency with the public interest” as a ground for denying, suspending, or revoking federal registration. See 21 U.S.C. § 823(f) (“The Attorney General may deny an application for such registration if he determines that the issuance of such registration would be inconsistent with the public interest.”); id. § 824(a)(4) (DEA may revoke registration of any physician who has committed acts “inconsistent with the public interest.”). Previously, the federal government lacked the authority under the CSA to deny a physician’s registration application when the physician possessed a under Harrison Act; Court states that while “direct control of medical practice in the States is beyond the power of the Federal Government,” “[i]ncidental regulation of such practice by Congress through a taxing act” may be permitted); United States v. Doremus, 249 U.S. 86, 93-94 (1919). 30 Moore, 423 U.S. at 139. 31 Cf. Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41 (1921) (state law regulating physicians’ furnishing or prescribing narcotic drugs held compatible with Harrison Act). 32 This provision was originally enacted as section 4 of title I of the Comprehensive Drug Abuse and Control Act of 1970, 84 Stat. 1236, 1241 (1970); title II comprised the CSA. Hence the legislative history of the provision is highly relevant to the CSA. 153 227-329 VOL_25_PROOF.pdf 163 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 license from the state to practice medicine and had no felony drug conviction. See S. Rep. No. 98-225, at 262 (1984) (footnote omitted) (“the Attorney General must presently grant a practitioner’s registration application unless his State license has been revoked or he has been convicted of a felony drug offense, even though such action may clearly be contrary to the public interest”).33 Supporters of the 1984 amendments explained that the most serious threat to “public health and safety” prompting this legal change was the frequency with which prescription drugs were involved in “drug-related deaths” and overdoses that threatened life.34 Representative Hamilton Fish, a sponsor of the 1984 amendments, said that giving flexibility to the federal government was necessary because states often did not respond adequately to abuses: “State policing of these activities . . . ha[s] not been [an] adequate control measure[]. State laws regarding the dispensing of controlled substances are also inadequate.” 130 Cong. Rec. at 25,849. At a hearing before the House Commerce Subcommittee on Health and the Environment, the DEA called the expanded federal authority to revoke practitioner registrations “one of the most important sections of the bill,” not only because states were often ill-equipped to enforce their own drug laws but also because “[m]any controlled drug violations involving prescription drugs are not felonies under state law and therefore cannot be used in a DEA revocation action” under then-existing law.35 Members of Congress also explained that the 1984 amendments were intended to “expand[] the standards for practitioner registration beyond the current exclusive reliance upon authorization by the practitioner’s own jurisdiction.”36 Congress intended, therefore, that the “inconsistent with the public interest” standard be more demanding than the standard of a physician’s licensing state. The 1984 amendments authorized the DEA to enforce the CSA against medical practitioners who prescribed controlled substances in a manner that “endangers public health or safety” contrary to the “public interest,” notwithstanding the nature or content of state law or regulation. Consistent with Congress’s purpose, 33 See also 130 Cong. Rec. 25,852 (1984) (statement of Rep. Rangel); see generally Moore, 423 U.S. at 140-41 (“In the case of a physician th[e] scheme [of the registration provision of the thenexisting CSA] contemplates that he is authorized by the State to practice medicine and to dispense drugs in connection with his professional practice. The federal registration . . . follows automatically.”). 34 Dangerous Drug Diversion Act of 1984: Hearing on H.R. 5656 Before House Comm. on Health and the Environment, 98th Cong. 365 (1984) (testimony of Rep. Waxman) (“[d]rugs legally manufactured for use in medicine are responsible for a substantial majority of drug-related deaths and injuries”); see also 130 Cong. Rec. 25,851 (statement of Rep. Rodino) (“prescription drugs are responsible for close to 70 percent of the deaths and injuries due to drug abuse”). 35 Dangerous Drug Diversion Control Act of 1984: Hearing on H.R. 5656 Before Subcomm. on Health and the Environment of House Comm. on Energy and Commerce, 98th Cong. 403-04 (1984) (statement of Gene R. Haislip, Deputy Assistant Administrator, Drug Enforcement Administration). 36 130 Cong. Rec. 1586 (1984) (statement of Sen. Laxalt); see also 130 Cong. Rec. at 25,851-52 (statement of Rep. Rangel). 154 227-329 VOL_25_PROOF.pdf 164 10/22/12 11:10 AM Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose” the public interest standard incorporated in section 824(f) is best understood to authorize suspension or revocation of the federal registration of a practitioner who dispenses controlled substances to assist in a suicide, even if such conduct is permitted under state law. VI. The CSA’s Preemption Provision Is Consistent with This Interpretation The CSA itself includes a provision designed to narrow possible federal preemption of state law. The provision is found at 21 U.S.C. § 903. Section 903 plainly does not require the Department of Justice to accept Oregon’s determination of what is a “legitimate medical purpose.” Section 903 reads as follows: No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together. 21 U.S.C. § 903. For at least two reasons, we do not think that section 903 affects the conclusion that assisting in a suicide is not a legitimate medical purpose that would justify a physician’s dispensing a controlled substance. First, if section 841(a) and other pertinent parts of the CSA are read and applied in accordance with the DEA’s regulation, 21 C.F.R. § 1306.04(a), and the interpretation of it here, it would certainly not follow that the CSA was being understood to “occupy the field” of regulating the medical profession to the “exclusion of any State law.”3 7 On the contrary, as we have just shown, the states remain free to regulate that profession concurrently with the federal government, as they have done since 1914. Federal regulation of the profession under the CSA would reach only the dispensing of controlled substances, which is hardly the 37 Congress’s intent to preempt all state law in a particular area may be inferred “where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress ‘left no room’ for supplementary state regulation” or “where the field is one in which ‘the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’” Hillsborough County v. Automated Medical Labs., Inc., 471 U.S. 707, 713 (1985) (citations omitted). Interpreting the CSA and its regulations to reach the conduct of physicians who dispense drugs to assist suicide does not require the assumption that Congress intended to occupy the field of regulation of the medical profession. 155 227-329 VOL_25_PROOF.pdf 165 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 whole field of medical practice. Moreover, states would remain free to regulate that activity as well, as long as such regulation did not conflict with federal law. Second, even if our interpretation would make it harder as a practical matter for Oregon physicians to assist in suicides, the CSA and its regulations as we read them do not preempt Oregon’s Death With Dignity Act.38 Oregon physicians remain free under that law to assist in suicides, provided of course that they follow the procedures that Oregon imposes. All that our interpretation does is to affirm that dispensing controlled substances in connection with such an assisted suicide will cause an Oregon physician to be in violation of the CSA. Any method of assisting in suicides in which an Oregon physician does not dispense a controlled substance entails no violation of the CSA. The Attorney General’s interpretation forecloses one, but only one, method of assisting suicide in a manner consistent with Oregon law. We respectfully disagree with the contrary opinion of the Oregon Deputy Attorney General. See Oregon Deputy Attorney General Letter, supra note 6, at 7-8. That Letter argues, in part, that the CSA should not be construed to enable the Attorney General to regulate the practice of medicine, which is said to be an area traditionally reserved to the states. We consider that argument to be mistaken. First, as we have shown, the federal government has regulated the dispensing of controlled substances by physicians continuously since the Harrison Act of 1914, and in enacting the CSA in 1970, Congress clearly intended that the Attorney General continue to do so.39 Second, as we have also shown, the legislative history of the 1984 amendments to the CSA demonstrates that Congress intended the Attorney General to have regulatory authority with respect to the conduct of physicians even in circumstances in which that conduct was not sanctionable under state law. Third, the activity of assisting in suicide should not, in our view, be considered a “medical” practice solely because it is undertaken by a physician: as we have shown, physician-assisted suicide has been condemned by the overwhelming majority of the states and by the leading professional associations of medical and nursing practitioners. On the theory of the Oregon Deputy Attorney General’s Letter, an act that was performed by doctors, despite being forbidden by ordinary professional standards or even punishable elsewhere as a crime, could be transformed into a “medical” practice if a single state were to decide to deem it so; and that state’s unilateral decision would presumptively place the act beyond the reach of federal regulation. It would follow that if a state authorized physicians to 38 Cf. Dalton v. Little Rock Family Planning Servs., 516 U.S. 474, 476 (1996) (per curiam) (state law preempted only to the extent that it “‘actually conflicts’” with federal law) (citation omitted); Pharmaceutical Society of State of New York v. Lefkowitz, 586 F.2d 953, 958 (2d Cir. 1978) (no preemption because no actual conflict). 39 See Moore, 423 U.S. at 132-33. 156 227-329 VOL_25_PROOF.pdf 166 10/22/12 11:10 AM Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose” perform involuntary euthanasia on severely handicapped or mentally retarded persons, and thus “medicalized” that procedure, the state law could place the procedure beyond federal regulatory power pursuant to the CSA even if controlled substances were used. Equally, it would follow that if a state authorized physicians to prescribe controlled substances to addicts in order to enable them to maintain their customary use and so avoid discomfort, the federal government would be unable to prosecute those physicians or to revoke their registrations under the CSA. We cannot accept these consequences of the theory: no state has the power to determine unilaterally what practices count as “medical” for purposes of the CSA. VII. The DEA Had the Authority to Promulgate and Interpret a Regulation Concerning Whether Dispensing a Controlled Substance Has a “Legitimate Medical Purpose” Finally, we consider the basis of the Attorney General’s authority to determine that dispensing a controlled substance to assist in a suicide in a state that permits such conduct on the part of a physician does not serve a “legitimate medical purpose” under 21 C.F.R. §1306.04 (a). We address this question because of an apparent ambiguity in the Reno Letter, supra note 7. The Letter could be understood, not as controverting DEA’s interpretation of the CSA and the DEA’s own regulations, but rather as making the jurisdictional claim that the DEA lacked statutory authority to find that a physician’s prescription of controlled substances to assist a suicide in Oregon went beyond “the course of professional practice,” 21 U.S.C. § 802(21), and did not serve a “legitimate medical purpose,” 21 C.F.R. § 1306.04(a). See Reno Letter at 3 (“[T]here is no evidence that Congress, in the CSA, intended to assign DEA the novel role of resolving ‘the earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide,’ Washington v. Glucksberg, 117 S. Ct. 2258, 2275 (1997), simply because that procedure involves the use of controlled substances.”). We do not understand the Reno Letter to be making a jurisdictional point, but rather to be offering its own interpretation of the CSA and the DEA’s regulations. If, however, the Letter were understood to be putting forward a jurisdictional claim, we think it would be both misleading and mistaken. First, it is misleading to raise the question whether Congress assigned responsibility for interpreting and enforcing the CSA to the DEA. It is clear that Congress assigned that responsibility to the Attorney General, not to the DEA. See 21 U.S.C. § 821 (“The Attorney General is authorized to promulgate rules and regulations . . . relating to the . . . dispensing of controlled substances . . . and control of regulated persons and of regulated transactions”) (emphasis added); id. § 871(b) (“The Attorney General may promulgate and enforce any rules, regulations, and procedures which he may deem necessary and appropriate for the 157 227-329 VOL_25_PROOF.pdf 167 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 efficient execution of his functions under this subchapter.”) (emphasis added). The Attorney General is authorized to delegate his or her CSA responsibilities to “any officer or employee of the Department of Justice,” id. § 871(a), and the Attorney General determined to delegate those functions to the DEA. See Touby, 500 U.S. at 169. Thus, if the Reno Letter were construed to be questioning the DEA’s authority to interpret, for example, what the CSA means by “the course of professional practice,” 21 U.S.C. § 802(21), it would necessarily be questioning the authority of the Attorney General to interpret that provision. Such a conclusion would plainly be at odds with the broad language of the CSA’s authorizing provisions, id. §§ 821, 871(b). Second, it is also misleading to say that Congress did not intend to assign to the DEA the role of resolving the national debate over physician-assisted suicide. Of course Congress did not intend to do that. What Congress plainly did intend to do was to give the Attorney General (and, accordingly, his or her delegate, the DEA) the authority to “promulgate rules and regulations . . . relating to the . . . dispensing of controlled substances and control of regulated persons.” Id. § 821. That is precisely what the DEA did when it promulgated 21 C.F.R. § 1306.04(a); and it was well within the scope of DEA’s authority to determine how that regulation was to be applied to the use of controlled substances in physician-assisted suicides. Third, the DEA did not undertake to “resolve” the national debate over physician-assisted suicide and should not be faulted for having attempted to do so. The DEA acts pursuant to delegated authority under an Act of Congress. Congress remains free to alter the terms on which the DEA acts: it could, for example, carve out an exception for the use of controlled substances by physicians to assist suicide. Moreover, the DEA has no power to control the ability of the states to enact laws permitting (or forbidding) physician-assisted suicide. What DEA could, and did, properly resolve was that the dispensing of controlled substances by a physician to assist a suicide did not have a “legitimate medical purpose” within the meaning of its own regulation, notwithstanding the fact that a single state chose to legalize physician-assisted suicide. In no way did the DEA preclude open and vigorous debate in the legislative process on the merits of physician-assisted suicide. Fourth, the Reno Letter suggests that the DEA—and, by necessary implication, the Attorney General—had no authority to adopt an interpretation that addressed “fundamental questions of morality and public policy.” Reno Letter, supra note 7, at 3. If that were so, it would follow that the Attorney General had no authority to decide whether dispensing controlled substances to assist in suicide served a “legitimate medical purpose” under 21 C.F.R. § 1306.04(a), because in deciding that question—one way or the other—the Attorney General would unavoidably be 158 227-329 VOL_25_PROOF.pdf 168 10/22/12 11:10 AM Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose” addressing such moral and policy questions.40 Indeed, it would seem to follow that that regulation was itself ultra vires—which is clearly a mistaken view. The truth is that, far from being outside the Attorney General’s mission under the CSA, addressing such questions is inherent in that mission. See Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984) (“The power of an administrative agency to administer a congressionally created program necessarily requires the formulation of policy . . . “) (internal quotation marks, internal ellipses and citation omitted). If the CSA is to be administered effectively, the Attorney General must interpret its provisions so as to decide, for example, whether prescribing of controlled substances in a particular class of cases takes place within the “course of professional practice,” 21 U.S.C. § 802(21), whether a physician’s conduct involving such substances “may threaten the public health and safety,” id. § 823(f)(5), and whether issuing a registration to an applicant would be “inconsistent with the public interest,” id. § 823(f). Of course such administrative determinations will require a judgment about public policy.4 1 So do, for example, administrative determinations as to what constitute “excessive profits” on government contracts, see Lichter v. United States, 334 U.S. 742, 778-86 (1948), when commodity prices are “fair and equitable,” see Yakus v. United States, 321 U.S. 414, 426-27 (1944), when rates for the sale of a commodity are “just and reasonable,” see Federal Power Comm’n v. Hope Gas Co., 320 U.S. 591, 600-02 (1944), when voting power has been “unfairly or inequitably” distributed among security holders, see American Power & Light Co. v. SEC, 329 U.S. 90, 104 (1946), when broadcast licensing is in the “public interest,” see National Broadcasting Co. v. United States, 319 U.S. 190, 225-26 (1943), or when a new drug poses an “imminent hazard to the public safety,” see Touby, 500 U.S. at 165. See generally Whitman v. American Trucking Ass’n, Inc., 531 U.S. 457, 472 (2001).42 As a matter of administrative practice, there was nothing unusual or unauthorized in the fact that the DEA’s interpretation implicated questions of public policy or morality. 40 We note that the Reno Letter was itself an administrative interpretation that assumed a particular view of public policy. 41 Indeed, one of the primary reasons why an agency’s construction of a statute it administers may be entitled to judicial deference is that it is more appropriate for an agency to make “policy choices” than it is for the courts. Chevron, 467 U.S. at 865. 42 The Department of Justice may also be required to interpret statutes implicating judgments about policy or morality when bringing criminal prosecutions or when instituting deportation proceedings. See, e.g., Jordan v. DeGeorge, 341 U.S. 223, 231 & n.15 (1951) (deportation proceeding based on alien’s commission of asserted “crime involving moral turpitude;” Court finds that phrase “presents no greater uncertainty or difficulty than language found in many other statutes repeatedly sanctioned by the Court”); see also Kay v. United States, 303 U.S. 1, 3 n.1, 7 (1938) (rejecting argument that statute making it criminal in some contexts willfully to “overvalue[] any security” was unconstitutionally vague). 159 227-329 VOL_25_PROOF.pdf 169 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 Accordingly, if the Reno Letter were construed as denying the Attorney General (or the DEA) the statutory authority to reach the question whether prescribing controlled substances to assist suicide is consistent with the CSA and its implementing regulations in a state that had legalized physician-assisted suicide, the Letter would be clearly mistaken as a matter of law. VIII. Conclusion Based on the foregoing considerations, the conclusion that a physician’s assisting suicide through the dispensing of a controlled substance does not serve a “legitimate medical purpose” within the meaning of 21 C.F.R. § 1306.04 is the best reading of that regulation. SHELDON BRADSHAW Deputy Assistant Attorney General Office of Legal Counsel ROBERT J. DELAHUNTY Special Counsel Office of Legal Counsel 160 227-329 VOL_25_PROOF.pdf 170 10/22/12 11:10 AM

Write a legal research memo on the following topic.

Authority of the Federal Bureau of Investigation to Investigate Police Killings The Federal Bureau of Investigation is not presently authorized to investigate killings o f non-federal law enforcement officers which involve only violations of state law, even in response to a presidential directive. January 16, 1981 M EM ORANDUM OPIN IO N FO R T H E D IR EC TO R , F E D E R A L BUREAU O F IN V ESTIG A TIO N This responds to your request for our views on the extent of the Federal Bureau of Investigation’s (FBI’s) authority to investigate the killing of a non-federal law enforcement officer when requested to do so by a local law enforcement official. Your question is directed specifi­ cally to investigations involving violations of state law but not federal law. In addition to the threshhold question of authority, you also pose questions regarding the form o f the request for assistance (whether written or oral); the need, if any, to seek statutory authority for the investigation; and the propriety of continuing the investigations in ad­ vance of this legislation. We conclude that the FBI does not presently have the authority to conduct these investigations. The form of the request for assistance is therefore irrelevant. W hether legislation should be sought to authorize investigations of this nature depends on whether the FBI desires to continue to respond to requests for assistance from local authorities. If so, legislation must be sought; and the FB I has no authority to conduct such investigations in the interim. I. Background The FBI’s investigation of killings of non-federal law enforcement officers apparently began in response to a presidential directive of November 1, 1970, from President Nixon to Attorney General M itch­ ell.1 Noting the increasing number of assaults on law enforcement *Our search for communications or memoranda discussing the legality o f the proposed investiga­ tions has disclosed no record m the files of this Office or anywhere else in the Department prior to the date of the directive. W e have also made informal inquiries at the Office of Management and Budget and have been advised that background documents that may have been connected to President Nixon’s directive, if any, are no longer retrievable. 45 officers, President Nixon directed the Attorney General “to make avail­ able all appropriate investigative resources of the Department of Justice to w ork jointly with State or local police when requested in any case involving an assault upon a police officer.” 2 Subsequently, on June 3, 1971, President Nixon met with the Attorney General, the Director of the FBI, Representatives o f Congress, and 19 police executives from around the country. The President announced that, in addition to the previously available services of the FB I laboratory, the Identification Division, the National Crime Information Center, and the investigation o f out-of-state leads, the F B I would actively participate in the investi­ gation of police killings w hen a local law enforcement agency re­ quested the assistance. On June 4, 1971, the FBI Director instructed all field divisions regarding the new policy, advising them to obtain a written request for assistance and then “ work the investigation like we would a bank robbery case, jointly, tow ard the solution of the killing.” An internal FBI memorandum of June 5, 1971, recognized “the unique situation involved [,] there being at this time no Federal law providing penalties for the killing of a local law enforcement officer.” Accordingly, the memorandum advised that the views of the D epart­ ment of Justice should be sought on some of the legal issues incident to the new policy. By memorandum of the same date, the Director of the FBI requested an opinion from the Attorney General regarding the F B I’s jurisdiction to investigate a purely local offense.3 T he Assistant Attorney General in charge o f the Criminal Division replied by memorandum o f June 28, 1971. Having noted a proposed line item for inclusion in the F B I’s annual appropriation providing for investigation o f police killings, the memorandum concluded that FBI jurisdiction to investigate posed no problem. “Congressional authoriza­ tion to expand funds for assistance of state law enforcement activities appears to us a proper exercise o f the spending power.” 4 T he appropriation apparently relied on in that June 28, 1971, memo­ randum was not enacted as proposed; and questions about the FB I’s jurisdiction continued. On November 1, 1979, the FBI’s Legal Counsel Division, by memorandum for the Assistant Director, Planning and Inspection Division, discussed the legality o f FBI investigations of police killings and concluded that there was no specific statutory au­ 2A ccording to an internal FBI memorandum of June 4, 1971, the purpose o f the change in policy was to forestall, if possible, the passage of the many bills pending in Congress which would have required the FBI to take over the investigation of police killings. T h e FBI has consistently resisted all such legislation as an instrusion on local law enforcement responsibilities, and, in some cases, as an excessive demand on FBI investigative resources. 3T he request was primarily concerned with the FB I’s authority to arrest, search, or interrogate a suspect in connection with a local offense. 4T he memorandum also noted the desirability o f a more explicit statutory authorization for w arrantless arrests by the FBI in cases not involving violations of federal law. It is not clear from the memorandum w hether authonty for the investigation o f police killings was thought to exist. But it does appear that further statutory authonty was thought to be necessary and, moreover, that inclusion o f the line item in the appropriation w as expected to suffice. 46 thority. The memorandum suggested that the investigations might be justified because Congress had been made aware of the investigations by statements by the Director in appropriations hearings. “Subsequent Congressional action in appropriating funds for these activities could be construed as tacit approval . . . .” Still, the memorandum recognized the implication of a memorandum of this Office of March 22, 1978, entitled “FBI Cooperation with State or Local Authorities,” 5 which advised that the FBI had no authority to conduct interviews for the benefit of state and local law enforcement agencies where there was no possible violation of federal law. Although noting that the March 22 memorandum did not specifically address the question of FBI authority to act in response to a presidential directive, the Legal Counsel Divi­ sion concluded that our memorandum did “point out the necessity for clarification in this area.” Your request for our advice followed. II. The FBI’s Legal Authority to Investigate The FB I’s investigative authority derives from the Attorney Gener­ al’s power to appoint officials to detect “crimes against the United States.” 28 U.S.C. § 533(1). By regulation, the FBI is empowered to investigate “violations of the laws o f the United States.” 28 C.F.R. § 0.85(a) (1980). In construing the extent of this power, this Office has issued two memoranda, in addition to that o f March 22, 1978, which are relevant. In a memorandum of November 9, 1977, for the Director of the Federal Bureau of Investigation (“ FBI Cooperation with Local Au­ thorities”), we discussed various problems arising in the context of FBI participation in cooperative undercover efforts with local law enforce­ ment authorities. We considered first an investigation initiated in the belief that violations of federal law may be involved, and we concluded that “[a]s long as there remains a legitimate basis for the view that the investigation of the underlying conduct may unearth violations of fed­ eral law, we believe that the FBI is authorized to proceed with the investigation.” But we further considered the situation where, as the cooperative investigation proceeded, it became clear that the activity in question did not constitute a violation of federal law. We concluded that the FBI could not in such circumstances continue to cooperate with local authorities because “[t]he investigation of violations o f state law alone would be beyond the authority conferred on the FBI by 28 U.S.C. § 533(1) and 28 C.F.R. §0.85.” Moreover, incurring expenses other than those necessary for the detection and prosecution of crimes against the United States would result in a violation of 31 U.S.C. § 628, which precludes expenditures except for the purpose for which the 5 FBI. A copy of the memorandum, which was in the form of a memorandum to files, was sent to the 47 appropriation was made. T h e only exception that we noted was in the context o f an investigation from which the F B I’s abrupt withdrawal would result in a significant likelihood of physical harm to other par­ ticipants. In that case, we indicated that the FBI would be justified in continuing its covert activity to the extent necessary to prevent such harm. W e also had occasion to consider related issues in a memorandum of February 24, 1978, for the D irector o f the Federal Bureau of Investiga­ tion (“Responsibility and A uthority of FBI Agents to Respond to Criminal Offenses Outside th e Statutory Jurisdiction of the FB I”). That m emorandum dealt with the commission of state law offenses in the presence or immediate vicinity of an FB I agent who then acts either on his ow n accord or in response to a summons by a local law enforce­ m ent officer to detain or arrest the offender. We stated at the outset that we thought it “clear th at the FB I has no federal authority to take action with respect to violations o f state law, even in the exigent circumstances . . . presented].” Noting that the FBI’s statutory juris­ diction in every respect—investigation, execution of search or arrest warrants, and making arrests without warrants—was limited to acts involving violations of the laws of the United States, we concluded that “ [a]ny action taken with respect to the violation of state or local law w ould thus be beyond the F B I’s explicit statutory authority.” We did find, however, that certain exigent circumstances would give rise to an agent’s obligation and pow er under state law to intervene in state offenses, specifically, if state law designated the agent a peace officer, if the common law authorized a private citizen to act, or if the common law or state statutory law required a bystander to respond to a sum­ mons by a local law enforcement officer. W e see nothing in the question o f FBI authority that you now raise that would permit a different answer than that which follows from the plain language o f § 533(1) itself and from our three prior memoranda.6 6 W e cannot find congressional approval of the investigations through the device of FBI appropria­ tions following hearings at which D irector Hoover referred to the practice. It is true that congres­ sional ratification by subsequent appropriations has been found on occasion, see Ivanhoe Irrig. Disi. v. McCracken. 357 U.S. 275, 292-94 (1958); Brooks v. Dewar, 313 U.S. 354, 360-61 (1941); Sibbach v. Wilson & Co.. 312 U.S. 1, 15-16 (1941); United States v. Midwest Oil Co.. 236 U.S. 459, 481 (1915). For a number o f reasons, however, we find no such ratification here. First, the asserted congressional awareness in this case goes no further than a single committee. Moreover, it is the Appropriations Committee, which has no jurisdiction over FBI activities and whose work is limited, by House and Senate rules, to non-substantive legislation. See TVA v. Hill, 437 U.S. 153, 189-192 (1978). Second, the unambiguous language of the statute is too plain to admit of a different construction, which is the usefulness o f the doctrine o f congressional acquiesence. Jones v. Liberty Glass Co.. 332 U.S. 524, 533— 34, (1947); First Nat. City Bank v. United States. 557 F.2d 1379, 1384 (Ct. Cl. 1977) In these circumstances, w e would not be giving effect to a “construction** o f the statute; rather, w e would be recognizing a repeal (of the limitation on FBI jurisdiction) by implication. See TVA v. Hill, supra; see also S E C v. Sloan, 436 U.S. 103, 121 (1978). N or can w e find that the agency practice is entitled to the deference that arises in other cases from consistent and longstanding administrative interpretation. Such deference cannot be paid where the practice is inconsistent with or in excess of statutory authority. E .g, VolksWagenwerk v. FMC, 390 U.S. 261, 272 (1968); Opinion of the A ttorney General for the Secretary of Agriculture, June 23, 1980, at 12 [4 Op. O.L.C. 30, 38 (1980)]. See S E C v. Sloan. 436 U.S. at 117-19. 48 If there is no reasonable expectation that the investigation will lead to evidence of a violation o f federal law—and you specifically pose only the situation w here there is none—there is no FBI jurisdiction or authority to investigate. None of the exceptions to this general rule outlined in our prior memoranda is applicable here. First, the authority to begin an investigation cannot be premised on the danger to other law enforcement officials or informers that might result if the FB I were to withdraw from the investigation. Second, the authority under the common law to act upon certain exigencies for crime prevention or apprehension of offenders does not extend to investigations of crimes already committed. Third, state statutory law, although it might con­ ceivably confer investigative authority, could not authorize expendi­ tures that would be incurred in the course of an investigation. The proscriptions of 31 U.S.C. § 628 would still apply.7 The Legal Counsel Division’s Memorandum appears to suggest that our well-established view of FBI jurisdiction might be different if, as here, the activity was bottomed on a presidential directive. Under 28 U.S.C. § 533(3), the Attorney General may appoint officials “to con­ duct such other investigations regarding official matters under the con­ trol of the Departm ent of Justice and the Department of State as may be directed by the Attorney General.” We have previously recognized that pursuant to this section, the FBI could conduct such investigations as were ordered by a presidential directive related to the President’s exercise o f his constitutional or statutory functions. Memorandum o f June 16, 1976, from Assistant Attorney General Scalia, Office o f Legal Counsel, to Associate Deputy Attorney General Giuliani (“FBI Au­ thority to Conduct Investigations of Potential Vice-Presidential Nomi­ nees”).8 But we see no reason to believe that the purpose of an investi­ gation of a police killing is related to any specific statutory or constitu- 7 We did not address 31 U.S.C. § 628 in our memorandum of February 24, 1978, possibly because an agent’s actions in arresting or detaining a state law violator m an emergency situation involve no extraordinary expenses. 5 The memorandum concluded that no constitutional or statutory authority existed to support a presidential directive to the FBI to investigate possible vice-presidential nominees, and so there was no discussion of how directly related the investigation must be. The memorandum does suggest, however, that more than an indirect relation is required Although recognizing that the President's general powers to “take care that the laws be faithfully executed," U.S. Const., Art. II, § 3, or his nominating powers, Art. II, § 2, could provide the basis for certain investigations, we nevertheless concluded that neither justification would apply in the case of a vice-presidential nominee; for the President has no responsibility o r powers under the Constitution to screen candidates for public office. W e further considered the President’s need to assure the trustworthiness of a candidate who would receive a national security briefing. But we found no practice of providing such briefing to vice-presidential candidates and, moreover, a “possible constitutional impediment to conditioning the conferral of such a clear benefit in the political campaign, upon agreement to an investigation, particularly when the incumbent President himself is an opposing candidate.” 49 tional pow er o f the President.9 Thus, this purported investigatory pow er is not authorized by 28 U.S.C. § 533(3).10 III. Proposals for Legislation You also asked, in the event that we determined that the FBI lacked the authority to investigate police killings, that we advise whether authorizing legislation can or should be sought. The question whether legislation should be sought is a policy decision. However, if such investigations are to continue, legislation will be required. We see no constitutional infirmity w ith either o f two legislative proposals that have been considered in the past. First, the killing of a police officer could be made a federal crime, as to which the FBI already possesses investigative authority under 28 U.S.C. § 533(1). Second, specific inves­ tigative authority for police killings could be added to the FBI jurisdic­ tion conferred under 28 U.S.C. § 533. Such authority could be condi­ tioned upon a request for assistance by a local law enforcement agency, or it could be conferred in all police killing cases. We have no doubt about the sufficiency of the federal interest in local law enforcement to enable Congress to proceed either by amendment to the criminal code or to § 533. Jo h n M. H arm on Assistant Attorney General Office o f Legal Counsel 9 In view o f our conclusion that 28 U.S.C. §533(3) does not apply, we have no occasion to determ ine w hat particular action is necessary to invoke the powers under that section. We do note, how ever, that the directive of Novem ber 1, 1970, charged only that the A ttorney General should use “all appropriate investigative resources” (emphasis added) and did not purport to be an independent basis o f investigative authonty pursuant to § 533(3). W e should add, moreover, that although it is not possible conclusively to determine w hat was meant in the directive by “appropriate” resources, it does appear that the directive was thought to be the basis for investigations not previously within the FBI's range o f operations. T hat is, we d o not believe that the directive was intended only to authorize FBI investigations where “appropriate” under existing statutory authority and agency practice. In light of o u r conclusion, however, that investigations of non-federal offenses are outside the FBI's jurisdiction, we would now read the directive merely to emphasize that FBI resources may be used in an “appropriate” case, e.g., where there is a reasonable likelihood of uncovering a violation o f federal law, and in an “appropriate" manner, e.g., as determ ined by law enforcement officials in their expertise and in light o f all the circumstances. 10 M oreover, in the absense o f any authority under either § 533(1) or § 533(3) for the FBI to act upon a request by a state or local law enforcement official for investigative assistance, the form of the request, w hether written or oral, is o f course irrelevant. 50

Write a legal research memo on the following topic.

Authority of the Federal Bureau of Investigation to Investigate Police Killings The Federal Bureau of Investigation is not presently authorized to investigate killings o f non-federal law enforcement officers which involve only violations of state law, even in response to a presidential directive. January 16, 1981 M EM ORANDUM OPIN IO N FO R T H E D IR EC TO R , F E D E R A L BUREAU O F IN V ESTIG A TIO N This responds to your request for our views on the extent of the Federal Bureau of Investigation’s (FBI’s) authority to investigate the killing of a non-federal law enforcement officer when requested to do so by a local law enforcement official. Your question is directed specifi­ cally to investigations involving violations of state law but not federal law. In addition to the threshhold question of authority, you also pose questions regarding the form o f the request for assistance (whether written or oral); the need, if any, to seek statutory authority for the investigation; and the propriety of continuing the investigations in ad­ vance of this legislation. We conclude that the FBI does not presently have the authority to conduct these investigations. The form of the request for assistance is therefore irrelevant. W hether legislation should be sought to authorize investigations of this nature depends on whether the FBI desires to continue to respond to requests for assistance from local authorities. If so, legislation must be sought; and the FB I has no authority to conduct such investigations in the interim. I. Background The FBI’s investigation of killings of non-federal law enforcement officers apparently began in response to a presidential directive of November 1, 1970, from President Nixon to Attorney General M itch­ ell.1 Noting the increasing number of assaults on law enforcement *Our search for communications or memoranda discussing the legality o f the proposed investiga­ tions has disclosed no record m the files of this Office or anywhere else in the Department prior to the date of the directive. W e have also made informal inquiries at the Office of Management and Budget and have been advised that background documents that may have been connected to President Nixon’s directive, if any, are no longer retrievable. 45 officers, President Nixon directed the Attorney General “to make avail­ able all appropriate investigative resources of the Department of Justice to w ork jointly with State or local police when requested in any case involving an assault upon a police officer.” 2 Subsequently, on June 3, 1971, President Nixon met with the Attorney General, the Director of the FBI, Representatives o f Congress, and 19 police executives from around the country. The President announced that, in addition to the previously available services of the FB I laboratory, the Identification Division, the National Crime Information Center, and the investigation o f out-of-state leads, the F B I would actively participate in the investi­ gation of police killings w hen a local law enforcement agency re­ quested the assistance. On June 4, 1971, the FBI Director instructed all field divisions regarding the new policy, advising them to obtain a written request for assistance and then “ work the investigation like we would a bank robbery case, jointly, tow ard the solution of the killing.” An internal FBI memorandum of June 5, 1971, recognized “the unique situation involved [,] there being at this time no Federal law providing penalties for the killing of a local law enforcement officer.” Accordingly, the memorandum advised that the views of the D epart­ ment of Justice should be sought on some of the legal issues incident to the new policy. By memorandum of the same date, the Director of the FBI requested an opinion from the Attorney General regarding the F B I’s jurisdiction to investigate a purely local offense.3 T he Assistant Attorney General in charge o f the Criminal Division replied by memorandum o f June 28, 1971. Having noted a proposed line item for inclusion in the F B I’s annual appropriation providing for investigation o f police killings, the memorandum concluded that FBI jurisdiction to investigate posed no problem. “Congressional authoriza­ tion to expand funds for assistance of state law enforcement activities appears to us a proper exercise o f the spending power.” 4 T he appropriation apparently relied on in that June 28, 1971, memo­ randum was not enacted as proposed; and questions about the FB I’s jurisdiction continued. On November 1, 1979, the FBI’s Legal Counsel Division, by memorandum for the Assistant Director, Planning and Inspection Division, discussed the legality o f FBI investigations of police killings and concluded that there was no specific statutory au­ 2A ccording to an internal FBI memorandum of June 4, 1971, the purpose o f the change in policy was to forestall, if possible, the passage of the many bills pending in Congress which would have required the FBI to take over the investigation of police killings. T h e FBI has consistently resisted all such legislation as an instrusion on local law enforcement responsibilities, and, in some cases, as an excessive demand on FBI investigative resources. 3T he request was primarily concerned with the FB I’s authority to arrest, search, or interrogate a suspect in connection with a local offense. 4T he memorandum also noted the desirability o f a more explicit statutory authorization for w arrantless arrests by the FBI in cases not involving violations of federal law. It is not clear from the memorandum w hether authonty for the investigation o f police killings was thought to exist. But it does appear that further statutory authonty was thought to be necessary and, moreover, that inclusion o f the line item in the appropriation w as expected to suffice. 46 thority. The memorandum suggested that the investigations might be justified because Congress had been made aware of the investigations by statements by the Director in appropriations hearings. “Subsequent Congressional action in appropriating funds for these activities could be construed as tacit approval . . . .” Still, the memorandum recognized the implication of a memorandum of this Office of March 22, 1978, entitled “FBI Cooperation with State or Local Authorities,” 5 which advised that the FBI had no authority to conduct interviews for the benefit of state and local law enforcement agencies where there was no possible violation of federal law. Although noting that the March 22 memorandum did not specifically address the question of FBI authority to act in response to a presidential directive, the Legal Counsel Divi­ sion concluded that our memorandum did “point out the necessity for clarification in this area.” Your request for our advice followed. II. The FBI’s Legal Authority to Investigate The FB I’s investigative authority derives from the Attorney Gener­ al’s power to appoint officials to detect “crimes against the United States.” 28 U.S.C. § 533(1). By regulation, the FBI is empowered to investigate “violations of the laws o f the United States.” 28 C.F.R. § 0.85(a) (1980). In construing the extent of this power, this Office has issued two memoranda, in addition to that o f March 22, 1978, which are relevant. In a memorandum of November 9, 1977, for the Director of the Federal Bureau of Investigation (“ FBI Cooperation with Local Au­ thorities”), we discussed various problems arising in the context of FBI participation in cooperative undercover efforts with local law enforce­ ment authorities. We considered first an investigation initiated in the belief that violations of federal law may be involved, and we concluded that “[a]s long as there remains a legitimate basis for the view that the investigation of the underlying conduct may unearth violations of fed­ eral law, we believe that the FBI is authorized to proceed with the investigation.” But we further considered the situation where, as the cooperative investigation proceeded, it became clear that the activity in question did not constitute a violation of federal law. We concluded that the FBI could not in such circumstances continue to cooperate with local authorities because “[t]he investigation of violations o f state law alone would be beyond the authority conferred on the FBI by 28 U.S.C. § 533(1) and 28 C.F.R. §0.85.” Moreover, incurring expenses other than those necessary for the detection and prosecution of crimes against the United States would result in a violation of 31 U.S.C. § 628, which precludes expenditures except for the purpose for which the 5 FBI. A copy of the memorandum, which was in the form of a memorandum to files, was sent to the 47 appropriation was made. T h e only exception that we noted was in the context o f an investigation from which the F B I’s abrupt withdrawal would result in a significant likelihood of physical harm to other par­ ticipants. In that case, we indicated that the FBI would be justified in continuing its covert activity to the extent necessary to prevent such harm. W e also had occasion to consider related issues in a memorandum of February 24, 1978, for the D irector o f the Federal Bureau of Investiga­ tion (“Responsibility and A uthority of FBI Agents to Respond to Criminal Offenses Outside th e Statutory Jurisdiction of the FB I”). That m emorandum dealt with the commission of state law offenses in the presence or immediate vicinity of an FB I agent who then acts either on his ow n accord or in response to a summons by a local law enforce­ m ent officer to detain or arrest the offender. We stated at the outset that we thought it “clear th at the FB I has no federal authority to take action with respect to violations o f state law, even in the exigent circumstances . . . presented].” Noting that the FBI’s statutory juris­ diction in every respect—investigation, execution of search or arrest warrants, and making arrests without warrants—was limited to acts involving violations of the laws of the United States, we concluded that “ [a]ny action taken with respect to the violation of state or local law w ould thus be beyond the F B I’s explicit statutory authority.” We did find, however, that certain exigent circumstances would give rise to an agent’s obligation and pow er under state law to intervene in state offenses, specifically, if state law designated the agent a peace officer, if the common law authorized a private citizen to act, or if the common law or state statutory law required a bystander to respond to a sum­ mons by a local law enforcement officer. W e see nothing in the question o f FBI authority that you now raise that would permit a different answer than that which follows from the plain language o f § 533(1) itself and from our three prior memoranda.6 6 W e cannot find congressional approval of the investigations through the device of FBI appropria­ tions following hearings at which D irector Hoover referred to the practice. It is true that congres­ sional ratification by subsequent appropriations has been found on occasion, see Ivanhoe Irrig. Disi. v. McCracken. 357 U.S. 275, 292-94 (1958); Brooks v. Dewar, 313 U.S. 354, 360-61 (1941); Sibbach v. Wilson & Co.. 312 U.S. 1, 15-16 (1941); United States v. Midwest Oil Co.. 236 U.S. 459, 481 (1915). For a number o f reasons, however, we find no such ratification here. First, the asserted congressional awareness in this case goes no further than a single committee. Moreover, it is the Appropriations Committee, which has no jurisdiction over FBI activities and whose work is limited, by House and Senate rules, to non-substantive legislation. See TVA v. Hill, 437 U.S. 153, 189-192 (1978). Second, the unambiguous language of the statute is too plain to admit of a different construction, which is the usefulness o f the doctrine o f congressional acquiesence. Jones v. Liberty Glass Co.. 332 U.S. 524, 533— 34, (1947); First Nat. City Bank v. United States. 557 F.2d 1379, 1384 (Ct. Cl. 1977) In these circumstances, w e would not be giving effect to a “construction** o f the statute; rather, w e would be recognizing a repeal (of the limitation on FBI jurisdiction) by implication. See TVA v. Hill, supra; see also S E C v. Sloan, 436 U.S. 103, 121 (1978). N or can w e find that the agency practice is entitled to the deference that arises in other cases from consistent and longstanding administrative interpretation. Such deference cannot be paid where the practice is inconsistent with or in excess of statutory authority. E .g, VolksWagenwerk v. FMC, 390 U.S. 261, 272 (1968); Opinion of the A ttorney General for the Secretary of Agriculture, June 23, 1980, at 12 [4 Op. O.L.C. 30, 38 (1980)]. See S E C v. Sloan. 436 U.S. at 117-19. 48 If there is no reasonable expectation that the investigation will lead to evidence of a violation o f federal law—and you specifically pose only the situation w here there is none—there is no FBI jurisdiction or authority to investigate. None of the exceptions to this general rule outlined in our prior memoranda is applicable here. First, the authority to begin an investigation cannot be premised on the danger to other law enforcement officials or informers that might result if the FB I were to withdraw from the investigation. Second, the authority under the common law to act upon certain exigencies for crime prevention or apprehension of offenders does not extend to investigations of crimes already committed. Third, state statutory law, although it might con­ ceivably confer investigative authority, could not authorize expendi­ tures that would be incurred in the course of an investigation. The proscriptions of 31 U.S.C. § 628 would still apply.7 The Legal Counsel Division’s Memorandum appears to suggest that our well-established view of FBI jurisdiction might be different if, as here, the activity was bottomed on a presidential directive. Under 28 U.S.C. § 533(3), the Attorney General may appoint officials “to con­ duct such other investigations regarding official matters under the con­ trol of the Departm ent of Justice and the Department of State as may be directed by the Attorney General.” We have previously recognized that pursuant to this section, the FBI could conduct such investigations as were ordered by a presidential directive related to the President’s exercise o f his constitutional or statutory functions. Memorandum o f June 16, 1976, from Assistant Attorney General Scalia, Office o f Legal Counsel, to Associate Deputy Attorney General Giuliani (“FBI Au­ thority to Conduct Investigations of Potential Vice-Presidential Nomi­ nees”).8 But we see no reason to believe that the purpose of an investi­ gation of a police killing is related to any specific statutory or constitu- 7 We did not address 31 U.S.C. § 628 in our memorandum of February 24, 1978, possibly because an agent’s actions in arresting or detaining a state law violator m an emergency situation involve no extraordinary expenses. 5 The memorandum concluded that no constitutional or statutory authority existed to support a presidential directive to the FBI to investigate possible vice-presidential nominees, and so there was no discussion of how directly related the investigation must be. The memorandum does suggest, however, that more than an indirect relation is required Although recognizing that the President's general powers to “take care that the laws be faithfully executed," U.S. Const., Art. II, § 3, or his nominating powers, Art. II, § 2, could provide the basis for certain investigations, we nevertheless concluded that neither justification would apply in the case of a vice-presidential nominee; for the President has no responsibility o r powers under the Constitution to screen candidates for public office. W e further considered the President’s need to assure the trustworthiness of a candidate who would receive a national security briefing. But we found no practice of providing such briefing to vice-presidential candidates and, moreover, a “possible constitutional impediment to conditioning the conferral of such a clear benefit in the political campaign, upon agreement to an investigation, particularly when the incumbent President himself is an opposing candidate.” 49 tional pow er o f the President.9 Thus, this purported investigatory pow er is not authorized by 28 U.S.C. § 533(3).10 III. Proposals for Legislation You also asked, in the event that we determined that the FBI lacked the authority to investigate police killings, that we advise whether authorizing legislation can or should be sought. The question whether legislation should be sought is a policy decision. However, if such investigations are to continue, legislation will be required. We see no constitutional infirmity w ith either o f two legislative proposals that have been considered in the past. First, the killing of a police officer could be made a federal crime, as to which the FBI already possesses investigative authority under 28 U.S.C. § 533(1). Second, specific inves­ tigative authority for police killings could be added to the FBI jurisdic­ tion conferred under 28 U.S.C. § 533. Such authority could be condi­ tioned upon a request for assistance by a local law enforcement agency, or it could be conferred in all police killing cases. We have no doubt about the sufficiency of the federal interest in local law enforcement to enable Congress to proceed either by amendment to the criminal code or to § 533. Jo h n M. H arm on Assistant Attorney General Office o f Legal Counsel 9 In view o f our conclusion that 28 U.S.C. §533(3) does not apply, we have no occasion to determ ine w hat particular action is necessary to invoke the powers under that section. We do note, how ever, that the directive of Novem ber 1, 1970, charged only that the A ttorney General should use “all appropriate investigative resources” (emphasis added) and did not purport to be an independent basis o f investigative authonty pursuant to § 533(3). W e should add, moreover, that although it is not possible conclusively to determine w hat was meant in the directive by “appropriate” resources, it does appear that the directive was thought to be the basis for investigations not previously within the FBI's range o f operations. T hat is, we d o not believe that the directive was intended only to authorize FBI investigations where “appropriate” under existing statutory authority and agency practice. In light of o u r conclusion, however, that investigations of non-federal offenses are outside the FBI's jurisdiction, we would now read the directive merely to emphasize that FBI resources may be used in an “appropriate” case, e.g., where there is a reasonable likelihood of uncovering a violation o f federal law, and in an “appropriate" manner, e.g., as determ ined by law enforcement officials in their expertise and in light o f all the circumstances. 10 M oreover, in the absense o f any authority under either § 533(1) or § 533(3) for the FBI to act upon a request by a state or local law enforcement official for investigative assistance, the form of the request, w hether written or oral, is o f course irrelevant. 50

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February 24, 1977 77-9 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL Conflict of Interest—Status of an Informal Presidential Advisor as a “Special Government Employee” A question has arisen as to whether Mr. A should be regarded as a special Government employee for purposes of the Federal conflict-ofinterest laws. Generally, M r. A advises the President almost daily, principally on an informal basis. This essentially personal relationship would not in itself result in Mr. A’s being a Government employee or special Government employee. However, as explained in the latter part o f this memorandum, Mr. A should be designated as a special Govern­ ment employee in connection with his work on a current social issue that is o f concern to the Administration. The term “employee” is not defined in the conflict-of-interest laws, but it was no doubt intended to contemplate an employer-employee relationship as that term is understood in other areas of the law. Perhaps the most obvious source of a definition under Federal law is in the civil service laws. For purposes of Title 5 of the United States Code, a person is regarded as an “officer” or “employee” of the United States if he or she (1) is appointed in the civil service by a Federal officer or employee; (2) is engaged in the performance of a Federal function under authoriy of law; and (3) is subject to the supervision of a Federal officer or employee while engaged in the duties of his or her position. See 5 U.S.C. §§2104, 2105. A review of our files and other available material reveals that variants of these same three factors have, in fact, been utilized in one context or another under the conflict-ofinterest laws. For example, the first criterion under the civil service test—that the person be appointed in the civil service 1—is analogous to the definition of the term “special Government employee” for purposes of the con1 T h e “civil service” includes all appointive positions in the executive branch. 5 U.S.C. § 2101 . 20 flict-of-interest laws: an officer or employee “who is retained, designat­ ed, appointed, or employed” to perform duties not to exceed 130 out of the next 365 calendar days. 18 U.S.C. § 202(a). The quoted phrase connotes a formal relationship between the individual and the G overn­ ment. See B. Manning, Federal Conflict of Interest Law, 27, 34 (1964). In the usual case, this formal relationship is based on an identifiable act of appointment. Id.,2 However, an identifiable act of appointment may not be absolutely essential for an individual to be regarded as an officer or employee in a particular case where the parties omitted it for the purpose of avoiding the application of the conflict-of-interest laws or perhaps where there was a firm mutual understanding that a relatively formal relationship existed. We are not aware that Mr. A has been officially “retained, designated, appointed, or employed” as an adviser to the President or that there is any other basis for inferring a relatively formal relationship insofar as Mr. A ’s advising the President is con­ cerned. The second criterion under the civil service laws is that the person be engaged in the performance of a Federal function under authority of law. It seems doubtful that Mr. A ’s essentially personal advice on a wide variety of issues would be regarded as a Federal function under this test. The third civil service factor—that the individual work under the supervision of a Federal officer or employee—is closely related to the second. It has been of importance in the conflict-of-interest area primar­ ily in determining whether an individual is an independent contractor rather than an employee and therefore not subject to the conflict-ofinterest laws. For example, if a person is hired to conduct a study using his own judgment and resources and then turn over the end product to the agency, he would probably be regarded as an independent contrac­ tor. On the other hand, if a person works on Government premises under the direction of Government personnel and performs work of a kind normally handled by Government employees, he is probably an employee. Manning, supra, at 32-33. The question is obviously one of degree, but the distinction between an employee and an independent contractor, based primarily on the element of supervision and the nature of the work, is well recognized in other areas of the law. See, e.g., United States v. Orleans, 425 U.S. 807 (1976) (tort claims); N L R B v. Hearst, 322 U.S. I l l (1944) (Labor). We have taken this same approach in the past under the conflict-of-interest laws. See also Man­ ning, supra, at 32-33. Again, given the largely personal relationship between the President and Mr. A, apparently based on mutual respect rather than an assignment of duties, it seems doubtful that Mr. A ordinarily consults with the President under the latter’s supervision, 2 Appendix C to C hapter 735 o f the F ederal Personnel M anual provides detailed guidelines for agencies to follow in appointing consultants and o th er tem porary em ploy­ ees, principally to ensure that they are officially designated as special G overnm ent employees. These guidelines o f course reinforce the requirem ent o f a formal relationship. 21 direction, or control as that concept is applied in the conflict-of-interest and similar laws or engages in the type of work ordinarily performed by Governm ent employees. It is our conclusion, for the reasons given above, that Mr. A does not have to be designated as a special Government employee and abide by the restrictions of the conflict-of-interest laws applicable to such em­ ployees solely by virtue of his informal consultations with the Presi­ dent. The conclusion is, for the most part, consistent with the position of Professor Manning, a noted commentator on the conflict-of-interest laws: One does not become an “employee of the United States” merely by voicing an opinion on government matters to a federal official at a cocktail party. The distinction may be shadowy in a particular case, and each situation must be judged on its own facts. Formali­ ties can play an important part. In the ordinary situation, a person will not be considered to be a consultant-employee if he does not bear a formal appointment, is not enrolled on the personnel roster of the relevant agency, has no government personnel file in his name, and has not been sworn in or signed the customary oath of a government employee. O ther factors that might be relevant can be conjectured. Is the person’s advice solicited frequently? Is it sought by one official, who may be a personal friend, or impersonally by a number of persons in a government agency that needs expert counsel? D o meetings take place during office hours? Are they conducted in the government office, and does, perhaps, the adviser maintain a desk or working materials in government facilities? Manning, supra, at 29-30. This conclusion is also consistent with the prior position of this Office. By letter dated April 10, 1968, we advised the Acting Director of the Office of Foreign Direct Investments in the Department of Commerce that if he were to turn on occasion to a single expen or a group of such experts for informal advice on a particular regulation or policy, that would not make the experts “employees” for conflict-ofinterest purposes. As mentioned earlier, Mr. A speaks with the President almost every day by telephone, and these discussions cover a wide range of policy issues. The passage just quoted from Professor Manning’s book and our 1968 memorandum both appear to attach some significance to the frequency of consultation. But we do not believe the mere fact that Mr. A speaks with the President on a regular basis in itself alters the fundamentally personal nature of the relationship that is apparently involved here, just as Mrs. Carter would not be regarded as a special Governm ent employee solely on the ground that she may discuss gov­ ernmental matters with the President on a daily basis. 22 Mr. A, however, seems to have departed from his usual role o f an informal adviser to the President in connection with his recent work on a current social issue. Mr. A has called and chaired a number of meetings that were attended by employees of various agencies, in rela­ tion to this work, and he has assumed considerable responsibility for coordinating the Administration’s activities in that particular area. Mr. A is quite clearly engaging in a governmental function when he per­ forms these duties, and he presumably is working under the direction or supervision of the President. For this reason, Mr. A should be designat­ ed as a special Government employee for purposes of this work— assuming that a good faith estimate can be made that he will perform official duties relating to that work for no more than 130 out of the next 365 consecutive days. If he is expected to perform these services for more than 130 days, he should be regarded as a regular employee. In either case, he should be formally appointed and take an oath of office. This formal designation would not necessarily affect the conclu­ sion that Mr. A’s other consultations with the President are o f a personal rather than official nature. Should Mr. A assume governmental responsibilities in other areas, as he has done with his work on the above project, he should be regarded as a Government employee for these other purposes as well. John M . H armon Acting Assistant Attorney General Office o f Legal Counsel 23

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Department of Transportation Authority to Exempt Canadian Truck Drivers From Criminal Liability for Transporting Explosives The Department of Transportation possesses the authority to issue a regulation that, under section 845(a)(1) of title 18, would exempt Canadian truck drivers from criminal liability under section 842(i) of that title. The Department of Transportation, however, has not issued such a regulation, and therefore section 842(i) liability would attach to a Canadian truck driver transporting explosives in the United States. February 6, 2003 MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF TRANSPORTATION AND THE ACTING CHIEF COUNSEL BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES We have been asked by the Department of Transportation (“DoT”) and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) to resolve a dispute regarding section 1123(b) of the Safe Explosives Act, Pub. L. No. 107296, 116 Stat. 2135, 2284 (2002) (the “Act”), which became effective January 24, 2003.1 In particular, we have been asked to address the application of this provision to Canadian truck drivers who “ship or transport” or “receive or possess” explosives in interstate or foreign commerce. Because of the exceedingly short time period we were given to provide our advice, we have limited our discussion to this particular fact situation. Section 1123(b) of the Act amended section 842(i) of title 18, United States Code, by adding several categories to the list of prohibited persons who may not lawfully “ship or transport any explosive in interstate or foreign commerce” or “receive or possess any explosive which has been shipped or transported in interstate or foreign commerce.” The existing law covered any person who was a felon, a fugitive from justice, an unlawful user or addict of any controlled substance, or had been “adjudicated as a mental defective.” 18 U.S.C. § 842(i) (2000). The Act added three new categories of persons: aliens (excluding aliens lawfully admitted for permanent residence, as defined by section 101(a)(20) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(20), and four narrow categories of aliens present in the United States for specific purposes), persons dishonorably discharged from the armed forces, and former citizens of the United States who have renounced their citizenship. Pub. L. No. 107-296, § 1123(b), 116 Stat. at 2284. Section 1126 of the Act authorizes the Attorney General to grant 1 See Homeland Security Act of 2002, Pub. L. No. 107-296, § 4, 116 Stat. 2135, 2142 (2002). 38 DoT Authority to Exempt Canadian Truck Drivers From Criminal Liability relief from this prohibition if he “determines that the circumstances regarding the applicability of section 842(i), and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of such relief is not contrary to the public interest.” 116 Stat. at 2285 (to be codified at 18 U.S.C. § 845(b)(2)). Section 845(a)(1) of title 18 provides exemptions to some of the criminal prohibitions contained in chapter 40 of title 18, including the prohibition contained in section 842(i). The relevant exemption here states that the provisions of section 842(i) “shall not apply to . . . any aspect of the transportation of explosive materials via railroad, water, highway, or air which are regulated by the United States Department of Transportation and agencies thereof, and which pertain to safety.” 18 U.S.C. § 845(a)(1). The question presented for resolution by our Office is whether the prohibition in section 842(i) on “alien[s]” “ship[ping] or transport[ing]” or “receiv[ing] or possess[ing]” explosives forbids Canadian truck drivers from driving explosives into the United States. ATF posits that the answer to that question is “yes,” and that the sole mechanism for these truckers to obtain relief from this prohibition is to apply to ATF for “relief from disabilities” under section 845(b), as amended. DoT, by contrast, argues that the exemption contained in section 845(a)(1) provides an exemption from criminal liability for the Canadian truck drivers. For the reasons set forth below, we conclude that DoT possesses the authority to issue a regulation that, under section 845(a)(1), would exempt Canadian truck drivers from criminal liability under section 842(i). We further conclude, however, that DoT has not issued such a regulation and therefore section 842(i) liability would attach to a Canadian truck driver transporting explosives in the United States. I. As noted above, section 845(a) of title 18 provides exemptions to some of the criminal prohibitions contained in chapter 40 of title 18, including the prohibition contained in section 842(i).2 The relevant exemption states that the provisions of section 842(i) “shall not apply to . . . any aspect of the transportation of explosive materials via railroad, water, highway, or air which are regulated by the United States Department of Transportation and agencies thereof, and which pertain to safety.” 18 U.S.C. § 845(a)(1) (2000). To decide whether section 845(a)(1) provides an exemption from criminal liability for the Canadian truck drivers, we 2 Section 845(a)(1) does not apply to the criminal offenses statutorily excepted from the exemption. See 18 U.S.C. § 845(a)(1) (“Except in the case of subsection (l), (m), (n), or (o) of section 842 and subsections (d), (e), (f), (g), (h), and (i) of section 844 of this title, [chapter 40] shall not apply to . . . any aspect of the transportation . . . .”). 39 Opinions of the Office of Legal Counsel in Volume 27 first define the reach of the exemption and then discuss whether DoT has issued a regulation that falls within section 845(a)(1). A. The precise contours of the exemption in section 845(a)(1) are not easy to discern from the statutory text. The exemption uses two plural verbs—“are” and “pertain”—stating that the criminal provisions of chapter 40 “shall not apply to . . . any aspect of the transportation of explosive materials . . . which are regulated by” DoT “and which pertain to safety.” Plural verbs, of course, must correspond to a plural subject. And the only possible plural subject in section 845(a)(1) is the noun “materials.”3 A literal reading of this language would therefore lead to the conclusion that the exemption is triggered by any DoT regulation of the explosive materials in question. And, indeed, two courts have read the exemption this way. See United States v. Illingworth, 489 F.2d 264, 265 (10th Cir. 1973) (“The exception refers to materials which are regulated by the Department”); id. (“the dynamite which Illingworth carried with him on the planes was . . . regulated”); United States v. Petrykievicz, 809 F. Supp. 794, 797 (W.D. Wash. 1992) (“A proper grammatical reading of the exception results in an interpretation that provides that if the explosive materials transported via air ‘are’ regulated, the exception applies.”); id. at 799 (“Section 845 of Title 18 excludes the application of Chapter 40 of Title 18 if the explosive materials being transported are regulated by the Department of Transportation.”) (emphasis added). Yet, despite the undeniable force of the argument that this is the most grammatically correct reading of the exemption, there are also powerful reasons to question this reading of section 845(a)(1). First, it is possible that construing section 845(a)(1) as outlined above would render many of the substantive criminal prohibitions of chapter 40 meaningless. As the Western District of Washington has pointed out, this reading could “result[] in an interpretation that provides that if the explosive materials transported . . . ‘are’ regulated [by DoT], the exception applies.” 809 F. Supp. at 797. But, DoT, of course, regulates all, or nearly all, explosives in some fashion, for example, by regulating the explosives’ “labeling, packaging, mode of transportation, placarding and shipping papers.” Id.; accord DoT Submission, Tab 1, at 2–3. Therefore, to construe section 845(a)(1) to exempt an individual from criminal liability for transporting explosives simply because the explosives themselves were in some way regulated by DoT would be to “eviscerate[]” the criminal provisions of chapter 40. United States v. Fiorillo, 186 F.3d 3 DoT suggests that “pertain” could correspond to “agencies.” DoT Submission, Tab 3, at 5. But this construction does not account for the fact that the full text of the amendment reads “and which pertain to safety.” The phrase “the United States Department of Transportation and agencies thereof, and which pertain to safety” simply does not express the idea that the agencies must pertain to safety. Moreover, it is unclear that such a construction would have limiting effect because we are uncertain whether the jurisdiction of any DoT agency could be characterized as unrelated to safety. 40 DoT Authority to Exempt Canadian Truck Drivers From Criminal Liability 1136, 1153 (9th Cir. 1999). Such a construction would mean, for example, that an individual who transported stolen explosives, knowing they were stolen, in violation of section 842(h) of title 18, would not be liable if DoT had a regulation specifying how explosives should be stored. Cf. id. at 1153. Under such a reading, even a single DoT regulation concerning explosives would mean that no one would ever be liable for transporting explosives in violation of chapter 40. Second, construing section 845(a)(1) as outlined above could lead to the opposite, yet equally absurd, conclusion that the exemption from criminal liability has no meaning. In the Antiterrorism and Effective Death Penalty Act of 1996, Congress amended section 845(a)(1) to add the phrase “and which pertain to safety.” See Pub. L. No. 104-132, § 605(1)(B), 110 Stat. 1214, 1290 (1996). Read literally, therefore, the exemption applies only to any “aspect of the transportation of explosive materials . . . [(a)] which are regulated by the Department of Transportation . . . and [(b)] which pertain to safety.” While it might make sense to refer to “explosive materials” that “are” regulated by DoT, it is not at all clear that there is any content to the category of “explosive materials” “which pertain to safety.” Moreover, because the exemption is phrased conjunctively, the exemption would apply only if the materials are both regulated by DoT and pertain to safety. Because the latter category is either empty or vanishingly small, to read section 845(a)(1) according to its literal terms is to drain the 1996 amendment to that section of virtually all meaning. We cannot believe that Congress intended either of these absurd results.4 See United States v. X-Citement Video, Inc., 513 U.S. 64, 70–71 (1994). Instead, we believe that the incoherence of the exemption as written is likely the result of a mere scrivener’s error. In this case, we believe the error was Congress’s failure to include an “s” at the end of the word “aspect.”5 Thus, we believe that the exemp4 It is worth noting that the two reported decisions that have construed section 845(a)(1) such that the operative provision is DoT’s regulation of the explosive materials were decided before the 1996 amendment to the statute. These courts were therefore not faced with the construction of the “and which pertain to safety” language. See United States v. Illingworth, 489 F.2d 264, 265 (10th Cir. 1973); United States v. Petrykievicz, 809 F. Supp. 794, 797 (W.D. Wash. 1992). 5 Alternatively, the statutory confusion could be the result of a “conjugator’s error”—that is, the draftsman of the original exemption may have incorrectly conjugated the verb “to be,” choosing the plural form “are” rather than the singular “is” to correspond to the singular subject “aspect.” Indeed, ATF’s regulations implementing this section have interpreted the statutory provision this way: Except for the [prohibitions relating to unmarked plastic explosives and reporting of plastic explosives], this part does not apply to: (1) Any aspect of the transportation of explosive materials via railroad, water, highway, or air which is regulated by the U.S. Department of Transportation and its agencies, and which pertains to safety. 27 C.F.R. § 55.141(a) (2002) (emphasis added). We recognize that this reading implies that Congress perpetuated its original error when it added the phrase “and which pertain to safety.” When Congress amended the statute in 1996, it may simply have followed the verb form chosen by the original draftsman. We note in this regard that the House version of the bill contained the word “pertains,” H.R. Rep. No. 104-383, at 19 (1995) (setting forth House version), whereas the version adopted at 41 Opinions of the Office of Legal Counsel in Volume 27 tion is more properly read to say that certain provisions of chapter 40, including section 842(i), as amended, “shall not apply to . . . any aspects of the transportation of explosive materials via railroad, water, highway, or air which are regulated by the United States Department of Transportation and agencies thereof, and which pertain to safety.” Read this way, the exemption focuses on the aspects of the transportation of explosive materials that DoT regulates rather than on the materials themselves. This is essentially the reading of section 845(a)(1) adopted by the court in United States v. Scharstein, 531 F. Supp. 460, 466 (E.D. Ky. 1982) (“The key word in construing the meaning of § 845 is the word ‘aspect.’”). In addition, the only legislative history on the exemption supports the construction of the statute that focuses on the “aspects” of transportation, rather than on the “materials” transported. See H.R. Rep. No. 91-1549, at 4047 (1970) (“This chapter is not meant to affect aspects of the transportation of explosive materials regulated by the Department of Transportation.”) (emphasis added). This reading is further supported by the 1996 amendment, which—because there is no meaning to a category of “explosive materials . . . which pertain to safety”—makes clear that Congress was referring to the aspects of transportation that are regulated, not the explosive materials themselves. Finally, although the affected agencies did not address this issue specifically in their submissions to this Office, they seem to agree that the focus of the section 845(a)(1) exemption is on the “aspects” of transportation that are regulated. See DoT Submission, Tab 1, at 5 (“It is these ‘aspects’ of transportation in commerce that [Research and Special Programs Administration] believes are excepted from the prohibitions in 18 U.S.C. § 842(a)–(k).”); id., Tab 2, at 4 (“From a legal point of view, the critical issue is the meaning of the term “any aspect” in § 845(a)”); ATF Submission at 4 (“the exception in section 845(a)(1) applies only to those aspects of transportation relating to safety”); id. at 13 (“Section 845(a)(1) refers to any aspect of transportation ‘regulated by’ DoT ‘which pertain to safety.’”). Thus, we believe that section 845(a)(1) is best read to say that certain provisions of chapter 40, including section 842(i), as amended, “shall not apply to . . . any aspects of the transportation of explosive materials via railroad, water, highway, or air which are regulated by the United States Department of Transportation and agencies thereof, and which pertain to safety.” Accordingly, the exemption is triggered only when (1) DoT has regulated relevant “aspects of the transportation of explosive materials,” and when (2) those regulated aspects “pertain to safety.” We address these requirements in reverse order. conference contained the word “pertain,” H.R. Conf. Rep. No. 104-518, at 79 (1996). Whether the error is a “scrivener’s” or a “conjugator’s” error does not affect our analysis. 42 DoT Authority to Exempt Canadian Truck Drivers From Criminal Liability B. The phrase “and which pertain to safety” was added to section 845(a)(1) by section 605(1)(B) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat 1214, 1290 (1996). ATF argues that “safety” within section 845(a)(1) is limited to safety in the sense of preventing accidents. See ATF Submission at 11 (“DoT statutes are designed to regulate the safe transportation of hazardous materials, such as explosives, while in transit and in commerce. These statutes . . . primarily supplement State regulatory schemes to promote highway safety. This is reflected in statutes requiring drivers to be knowledgeable and qualified to operate motor vehicles, testing, certification, and so forth.”); id. (the risk DoT regulates is the “general safety and fitness of the operator”). DoT contends that “safety” should be read to include security, i.e., national security concerns. See DoT Submission, Tab 1, at 1. We believe that the term “safety” as it is used in section 845(a)(1) includes security concerns, including the risk to national security posed by drivers transporting explosives. DoT’s jurisdiction extends to both safety and security. Congress has authorized the Secretary of Transportation to “prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce.” 49 U.S.C. § 5103(b) (emphasis added). The clause “including security” was added by section 1711(a) of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2319 (2002). The use of the word “including” indicates that Congress believed security is an element of safety. Moreover, Congress has already assigned DoT a role in assessing the national security risk posed by individuals transporting hazardous materials. In section 1012 of the USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 271, 397 (2001), Congress amended portions of the statutes governing the issuance of licenses for those who transport hazardous materials by motor vehicles. Specifically, Congress prohibited states from issuing commercial driver’s licenses for transporting hazardous materials (“hazmat” licenses) “unless the Secretary of Transportation has first determined . . . that the individual does not pose a security risk warranting denial of the license.” 49 U.S.C. § 5103a(a)(1) (Supp. I 2002) (emphasis added). Under this provision, the Attorney General conducts the background check, id. § 5103a(c), but the Secretary of Transportation makes the determination regarding the security risk, id. § 5103a(a)(1). Although DoT, through the Transportation Security Administration (“TSA”), has not yet implemented this statutory scheme, see DoT Submission, Tab 6, at 1, the grant of authority from Congress is powerful evidence that Congress believes DoT has a role to play with respect to assessing risks to national security. Accordingly, we believe that a DoT regulation addressing the security aspects of the transportation of explosive materials, including an assessment of the risk to national security posed by drivers, could be one “which pertain[s] to safety” within the meaning of section 845(a)(1). 43 Opinions of the Office of Legal Counsel in Volume 27 C. We next address what is meant by the clause “aspect[s] of the transportation of explosive materials . . . which are regulated by the United States Department of Transportation.” This clause raises two interpretive questions: What is meant by “aspect[s] of transportation”?; and what is meant by “which are regulated by” DoT? We again address these questions in reverse order. Section 845(a)(1) states that the provisions of chapter 40 shall not apply to “any aspect[s] of the transportation of explosive materials . . . which are regulated by” DoT “and which pertain to safety.” This statutory language admits of two possible readings. The first, and we believe the most natural, reading is to say that the provisions of chapter 40 do not apply to “any aspect[s] of the transportation of explosive materials which are” in fact, presently being “regulated by” DoT. That is, for the exemption to apply, DoT must have issued regulations addressing the relevant “aspect[s]” of transportation. But there is another possible reading. The exemption might be read to apply to “any aspect[s]” of the safe transportation of explosive materials which are within DoT’s regulatory jurisdiction, even if DoT has not actually exercised its jurisdiction by regulating in the area. Thus, “aspect[s] . . . which are regulated” could be read to mean “aspect[s] which are within DoT’s regulatory competence.” As discussed previously, we believe that the safe and secure transportation of explosive materials lies within DoT’s regulatory competence. Thus, if the latter interpretation of the statutory language were correct, DoT’s regulatory jurisdiction over the safe and secure commercial transportation of hazardous materials would be essentially exclusive; even without actually regulating any aspect of the safe transportation of hazardous materials, DoT would have pre-empted the field. We are reluctant to accept this broad interpretation of section 845(a)(1). To accept it would be to eviscerate the criminal provisions of chapter 40 and the Attorney General’s prosecutorial and regulatory authority, see 18 U.S.C. § 847,6 to enforce those provisions, at least as they apply to commercial transportation. Such a construction would run afoul of the “well established [principle] that when two regulatory systems are applicable to a certain subject matter, they are to be reconciled and, to the extent possible, both given effect.” Pennsylvania v. Interstate Commerce Comm’n, 561 F.2d 278, 292 (D.C. Cir. 1977); accord FTC v. Ken Roberts Co., 276 F.3d 583, 593 (D.C. Cir. 2001) (“Because we live in an ‘age of overlapping and concurring regulatory jurisdiction,’ a court must proceed with the utmost caution before concluding that one agency may not regulate merely because another may.”) (internal citations omitted). Although Congress may certainly grant one agency exclusive jurisdiction over an area of federal regulation, we are loath to infer such a sweeping grant 6 See Homeland Security Act of 2002, Pub. L. No. 107-296, § 1111(c)(1), 116 Stat. 2135, 2275 (2002) (transferring the authorities of the Secretary of Treasury with regard to ATF to the Attorney General). 44 DoT Authority to Exempt Canadian Truck Drivers From Criminal Liability of authority, which here even displaces criminal prosecutorial authority, without a more precise statement from Congress. Accordingly, we believe that the section 845(a)(1) exemption is best read as applying only when DoT has actually regulated some aspect of the safe transportation of explosive materials. Cf. Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235, 241 (2002) (interpreting preemption provision of Occupational Safety and Health Act such that “mere possession by another federal agency of unexercised authority to regulate certain working conditions is insufficient to displace [the Occupational Safety and Health Administration]’s jurisdiction”). Our second interpretive question asks what is meant by the “aspect[s]” of the safe transportation of explosives that are regulated by DoT. In interpreting this provision we must ask whether an exemption from criminal liability obtains whenever DoT has actually regulated any aspect of the safe transportation of explosive materials or whether the exemption prevails only when DoT has regulated the particular aspect of the safe transportation of explosive materials that prompted Congress to enact the criminal statute from which the exemption is sought. We believe that the latter interpretation is the better one. This reading provides a link between the criminal liability imposed by section 842(i) and the exemption from this liability found in section 845(a)(1). We believe such a link is necessary because it is highly unlikely that Congress would have criminalized a particular aspect of the transportation of explosive materials—here, the threat to security posed by the driver—and then provided a broad exemption from this criminal liability whenever DoT regulates any aspect of the safe transportation of explosive materials, even if the regulated aspect is not one that pertains to the threat Congress addressed in the criminal prohibition. This reading would mean, for example, that if DoT had issued only one regulation pertaining to the safe and secure transport of explosive materials—say, a regulation requiring explosive materials to be locked up at all times during transport to prevent theft— no one, or at least no commercial driver, could be liable for any offense under chapter 40 concerning the transportation of explosives. We believe that this construction reads too much into section 845(a)(1). Instead, we believe that section 845(a)(1) is more properly construed to provide relief from criminal liability whenever DoT has regulated the particular aspect of the safe transport of explosive materials that Congress sought to regulate through criminal liability. That is, section 845(a)(1)’s immunity is limited to situations where an individual is subject to DoT regulations regarding the activity covered by the criminal provision. Reading the statute this way ascribes to the exemption a perfectly reasonable purpose: to eliminate wasteful duplication in the enforcement efforts of federal agencies, and to prevent the regulated community from having to comply with two sets of potentially conflicting regulations concerning the same aspect of transportation. This reading also ensures that every person transporting explosives will be covered by one of the two alternative federal schemes (but not both): the criminal prohibition contained in section 842(i) or the regulations issued 45 Opinions of the Office of Legal Counsel in Volume 27 by DoT. The alternative reading, by contrast, would ascribe to the statute the startling purpose of creating a blanket immunity from prosecution for any criminal explosives offense regarding the transportation of explosives, even if DoT had regulated only certain limited, unrelated, aspects of the safe transportation of explosives. We are reluctant to ascribe to Congress such an unusual intent without more explicit direction. We therefore conclude that the section 845(a)(1) exemption is available only where DoT has regulated the particular aspect of the transportation of explosive materials with which Congress was concerned in passing the criminal provision from which relief is sought. While not directly binding on the question before us, we note that our conclusion is consistent with the conclusion reached by the Supreme Court in Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235 (2002).7 In Chao, the Court examined a preemption provision contained in the Occupational Safety and Health Act of 1970 (“OSH Act”). The OSH Act, which is enforced by the Occupational Safety and Health Administration (“OSHA”), imposes a duty on covered employers to provide working conditions that “‘are free from recognized hazards that are causing or are likely to cause death or serious bodily harm’” to their employees, as well as an obligation to comply with safety standards promulgated by the Secretary of Labor.” Id. at 240–41 (quoting 29 U.S.C. § 654(a)(1)). However, the Act contains the following preemption provision: “[n]othing in this [Act] shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health.” 29 U.S.C. § 653(b)(1) (2000). In Chao, OSHA had cited a drilling company for violations of the OSH Act that occurred while the company was drilling a well in the territorial waters of Louisiana. The drilling company argued that OSHA’s jurisdiction was preempted by section 653(b)(1) of title 29 because the Coast Guard had regulated some aspects of occupational safety and health on vessels in navigable waters. The Court disagreed, holding that “minimal exercise of some authority over certain conditions on vessels” would not trigger the preemption provision. Chao, 534 U.S. at 241. Instead, the Court held that OSHA’s jurisdiction was preempted only if the working conditions at issue in a given case were the “particular ones ‘with respect to which’ another federal agency has regulated.” Id. (quoting 29 U.S.C. § 653(b)(1)). Chao, of course, is not dispositive in the instant case because the language of the preemption provision in section 653(b)(1) of title 29 differs from the language 7 Indeed, DoT’s Federal Motor Carrier Safety Administration has conceded this point. DoT Submission, Tab 2, at 4 (“The term ‘any aspect’ could also mean that ATF has no jurisdiction over ‘any aspect’ of the safe transportation of explosives regulated by DoT, but may apply the prohibitions of Sec. 1123 that are not covered by ‘any aspect’ of the DoT program. Since DoT does not directly regulate drivers by nationality, this would allow ATF to enforce the prohibition on aliens. [This] position is consistent with the Supreme Court’s decision” in Chao). 46 DoT Authority to Exempt Canadian Truck Drivers From Criminal Liability in section 845(a)(1) of title 18. Yet we do not believe that there is a great deal of distance between the statutory language at issue in Chao (“[n]othing in this [Act] shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority”) and the language at issue here (the provisions of chapter 40 “shall not apply to any aspect[s] of the transportation of explosive materials . . . which are regulated by” DoT). Both, we believe, are best read to suggest congruence between the general statutory requirement and the regulation that purports to preempt it. Moreover, our reading is consistent with the Court’s express desire to avoid “large gaps” in the enforcement of the regulatory scheme. Chao, 534 U.S. at 245 n.9 (noting that to construe the preemption provision otherwise “would mean that if the Coast Guard regulated marine toilets on [the vessel in question] and nothing more, any OSHA regulation of the vessel would be pre-empted”). This principle applies with particular force in light of Congress’s manifest concern with shoring up the nation’s defenses after the events of September 11. See, e.g., USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272, 397 (2001); Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (2002). For these reasons, we believe there must be more than an attenuated link between the DoT regulation that seeks to invoke the section 845(a)(1) exemption and the activity prohibited under chapter 40. We believe that the section 845(a)(1) exemption is triggered only when DoT has regulated the particular “aspect[s] of the [safe] transportation of explosive materials” that are criminalized by section 842(i), as amended. By passing section 842(i), as amended, Congress identified a presumptive security threat posed by allowing certain categories of persons to transport explosives, and regulated that threat through criminal liability, subject to relief after satisfactory completion of a background check. It would eviscerate this statutory scheme to conclude that a regulation completely unrelated to the prohibition would provide immunity from criminal liability under this section. Because section 842(i) criminalizes the transportation of explosives by specified categories of persons, we believe that the section 845(a)(1) exemption applies only if DoT has, in fact, regulated the security risk posed by the transportation of explosives by these categories of persons. D. We next address whether DoT has regulated the security risk posed by the transportation of explosives by the categories of persons listed in section 842(i). The only specific regulation that DoT points to in this regard is that in 1988 DoT “determined that commercial drivers’ license[s] issued by Canadian Provinces and Territories in conformity with the Canadian National Safety Code are in accordance with the standards of [49 C.F.R. Part 383].” DoT Submission, Tab 2, at 2 (quoting 49 C.F.R. § 383.23(b) n.1). Part 383 is entitled “Commercial driver’s license standards; requirements and penalties.” But nothing in that part regulates 47 Opinions of the Office of Legal Counsel in Volume 27 the security threat posed by a particular driver. Moreover, DoT’s determination in 1988 that Canadian commercial drivers’ licenses satisfied DoT regulations predated the requirement in the USA PATRIOT Act that domestic hazmat licenses be issued only after DoT has determined that the applicant does not pose a security risk. See supra p. 43 (discussing section 5103a(a)(1) of title 49, as amended, which prohibits states from issuing commercial driver’s licenses for transporting hazardous materials “unless the Secretary of Transportation has first determined . . . that the individual does not pose a security risk warranting denial of the license”). Thus, although DoT determined in 1988 that Canadian commercial drivers’ licenses satisfied DoT regulations, that determination did not include an assessment of the security review, if any, conducted by Canadian provinces because there was no U.S. equivalent at the time. DoT does not currently perform any such assessment of Canadian hazmat licensees,8 nor has DoT officially endorsed any Canadian background check system that may already be in place.9 Thus, we conclude that DoT has not regulated the security risk posed by the transportation of explosives by the relevant category of persons in section 842(i)—here, aliens.10 Accordingly, we do not believe that the regulations cited by DoT have actually regulated the “aspect of the transportation of explosive materials” that is criminalized by section 842(i), as amended, in a way that would allow the Canadian truck 8 The provisions of the USA PATRIOT Act that require DoT to perform background checks before a person may receive a license to transport hazardous materials, see 49 U.S.C. § 5103a (Supp. I 2002), are triggered only by an individual’s application for a license issued by a U.S. state. They do not apply to persons holding Canadian hazmat licenses; nor may persons holding Canadian licenses apply for licenses issued by U.S. states. See 49 C.F.R. § 383.21 & 383.23(b) n.1 (2001). We are informed that DoT is working with the Canadian government to establish a procedure regarding background checks for Canadian hazmat licensees, but such a procedure is not currently in place. See DoT Submission, Tab 7, at 1. 9 We are informed, for example, that Quebec requires all drivers (Canadian and U.S.) transporting explosives in Quebec to obtain a general explosives permit, and that this permitting process includes a “criminal background check and security review” of the driver. DoT Submission, Tab 2, at 3. DoT has not indicated that any other Canadian province conducts a similar security review; nor has DoT determined that the security review conducted by Quebec is acceptable to DoT or similar to that which will be performed under section 5103a. See DoT Submission, Tab 7, at 1 (“Transport Canada has . . . proposed early and effective equivalency programs for background checks of drivers, but [has] not implemented the programs because [it has] not yet received an official USG endorsement.”). 10 This is not to say, however, that a DoT regulation that would trigger the section 845(a)(1) exemption would have to be identical to the scheme put in place by Congress in section 845(b). To construct a hypothetical, we imagine that, before the passage of the USA PATRIOT Act, DoT could have addressed the security risk posed by felons, see 18 U.S.C. § 842(i)(1), by promulgating a regulation that allowed certain types of non-violent felons to possess hazmat licenses without going through a background check. This regulation would not have been identical to the scheme Congress created for dealing with the security risk posed by felons in section 845(b) of title 18, but may well have been a sufficient regulation to allow a non-violent felon to take advantage of the exemption contained in section 845(a)(1). 48 DoT Authority to Exempt Canadian Truck Drivers From Criminal Liability drivers at issue here to take advantage of the section 845(a)(1) exemption from criminal liability.11 II. We recognize that our resolution of the question presented to us is not free from doubt. To invoke an over-used, but apt phrase, the statute is “far from a model of clarity.” Our resolution rests, at bottom, on our conviction that to read the statute in the way suggested by DoT would create an enormous gap in the enforcement of newly enacted national security provisions, which we cannot believe Congress intended to do. Yet two canons of statutory construction—the rule of lenity and the Charming Betsy canon—tug against our conclusion. Although we believe that, ultimately, neither of these canons compels a result contrary to the conclusion we have reached, we cannot say with certainty that a court reviewing an indictment or conviction under section 842(i) would agree. A. The rule of lenity provides that “when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.” United States v. Bass, 404 U.S. 336, 347 (1971) (internal quotations and citation omitted). Congress has certainly not done that here. Thus, we can understand how a court might reach the conclusion that the rule of lenity leads to the conclusion that the statute must be construed in the way that most narrows the scope of potential criminal liability. And, indeed, one court has done just that. See Petrykievicz, 809 F. Supp. at 799 (invoking the rule of lenity to conclude that the focus of section 845(a)(1) must be on the materials regulated rather than on the aspects of transportation regulated). Yet the “rule of lenity applies only if, after seizing everything from which aid can be derived . . . we can make no more than a guess as to what Congress intended.” Holloway v. 11 The section 845(a)(1) exemption applies to “any aspect of the transportation of explosive materials via railroad, water, highway, or air which are regulated by” DoT “and which pertain to safety.” (Emphasis added.) ATF hints at the argument that regardless of the reach of section 845(a)(1) with respect to transporting explosives, section 842(i) still prohibits aliens and other prohibited persons from possessing explosives, even if they are doing so only as a part of transportation. See ATF Submission at 5, 10–12. Thus, if a driver could be said to be simultaneously transporting and possessing explosives within the meaning of section 842(i), ATF might argue that it could still prosecute the driver for the possession of explosives, even if DoT had actually issued a regulation that would trigger the transportation exemption under section 845(a)(1). Although we do not resolve the question here, we do note that ATF’s assertion of jurisdiction in such a case would severely limit, and arguably eviscerate, section 845(a)(1) because that provision would immunize only those individuals who were transporting but not simultaneously possessing explosives. We do not know whether such a class of persons exists, and decline to speculate without further input from the affected agencies. 49 Opinions of the Office of Legal Counsel in Volume 27 United States, 526 U.S. 1, 12 n.14 (1999) (internal quotations and citation omitted); accord Staples v. United States, 511 U.S. 600, 619 n.17 (1994) (ambiguity must be “grievous” for rule of lenity to apply); Johnson v. United States, 529 U.S. 694, 712 n.13 (2000) (Scalia, J., dissenting) (“[l]enity applies only when the equipoise of competing reasons cannot otherwise be resolved”). Although section 845(a)(1) poses interpretive difficulties, we cannot conclude that any ambiguity is “grievous,” or that our interpretation of the statute is “a guess as to what Congress intended.” Therefore, we believe the rule of lenity does not apply. B. [Redacted from original memorandum opinion at the request of the United States Trade Representative.] III. For the reasons set forth above, we conclude that DoT possesses the authority to issue a regulation that, under section 845(a)(1), would exempt Canadian truck drivers from criminal liability under section 842(i). We further conclude, however, that DoT has not issued such a regulation and therefore section 842(i) liability would attach to a Canadian truck driver transporting explosives in the United States. JAY S. BYBEE Assistant Attorney General Office of Legal Counsel 50

Write a legal research memo on the following topic.

Constitutionality of Bill Establishing American Folklife Center in the Library of Congress A bill creating an American Folklife Center in the Library of Congress would violate the separation of powers by vesting the Librarian of Congress, a congressional officer, with executive functions. The bill would also violate the Appointments Clause by permitting certain members of the Board of Directors of the American Folklife Center to be appointed by members of Congress, the Board of Directors of the Smithsonian Institution, and the Librarian of Congress. December 31, 1975 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT This is in response to the telephone request of Mr. Barry Roth of your staff for the views of the Department of Justice on the constitutional aspects of the aboveentitled enrolled bill, with which the Department has had no prior contact. The bill contains findings to the effect that it is appropriate and necessary for the federal government to support research and scholarship in American folklife, and that the encouragement and support of American folklife is an appropriate matter of concern to the federal government. H.R. 6673, 94 Cong., 1st Sess. § 2 (1975). The bill then sets up an American Folklife Center in the Library of Congress. Id. § 4(a). The Center would be under the direction of a Board of Trustees composed as follows: (1) four members appointed by the President [of the United States]; (2) four members appointed by the President pro tempore of the Senate . . . and four members appointed by the Speaker of the House of Representatives . . . ; (3) the Librarian of Congress; (4) the Secretary of the Smithsonian Institution; (5) the Chairman of the National Endowment for the Arts; (6) the Chairman of the National Endowment for the Humanities; and (7) the Director of the Center. Id. § 4(b). The Librarian of Congress is empowered to appoint a Director of the Center after consultation with the Board. Id. § 4(f). The Director would be the chief executive officer of the Center, and would have responsibility for carrying out the 379 Supplemental Opinions of the Office of Legal Counsel in Volume 1 functions of the Center, subject to the direction of the Board and the general supervision of the Librarian. Id. § 4(g). Section 5 sets forth the functions which the Librarian of Congress is authorized to perform under the Act (subsection (a)) and provides that they are to be carried out through the Center (subsection (b)). In our view the bill presents two important constitutional problems: the first involves the doctrine of the separation of powers, which requires that statutes assigning executive duties must be administered by the Executive Branch and not by congressional officers, such as the Librarian of Congress; the second is the principle that functions of an executive nature must be carried out by officers of the United States appointed in compliance with the requirements of Article II of the Constitution. I. Article I of the Constitution vests the legislative power of the United States in the Congress. Article II vests the executive power of the United States in the President and directs him to “take care that the laws be faithfully executed.” This means that statutes creating functions of an executive nature are to be carried out by the Executive Branch of the government under the supervision of the President, and not by congressional agencies. This basic constitutional consideration, of course, does not preclude the performance of internal congressional functions and of congressional services by congressional officers. The bill, however, goes far beyond that. Some of the functions to be performed by the Librarian of Congress through the American Folklife Center have, it is true, a substantial nexus with the Library of Congress (see, e.g., H.R. 6673, § 5(a)(2)–(5))—though even as to these it is open to question whether they truly come within the ambit of an institution whose primary purpose is to give library and reference service to Congress. This, however, cannot under any circumstances be said of the contract authority set forth in section 5(a)(1), empowering the Librarian to enter into, in conformity with Federal procurement statutes and regulations, contracts with individuals and groups for programs for the— (A) initiation, encouragement, support, organization, and promotion of research, scholarship, and training in American folklife; (B) initiation, promotion, support, organization, and production of live performances, festivals, exhibits, and workshops related to American folklife; (C) purchase, receipt, production, arrangement for, and support of the production of exhibitions, displays, publications, and presentations (including presentations by still and motion picture films, 380 Constitutionality of Bill Establishing American Folklife Center and audio and visual magnetic tape recordings) which represent or illustrate some aspect of American folklife; and (D) purchase, production, arrangement for, and support of the production of exhibitions, projects, presentations, and materials specially designed for classroom use representing or illustrating some aspect of American folklife. These activities do not appear to be related to any internal congressional function or service. While it is true that a few other functions of the Library, such as the provision of books and sound production records to the blind and other physically handicapped persons, 2 U.S.C. § 135a, are not directly so related either, they are at least a logical adjunct of the historical library function which the venerable institution has provided. While one may permit this for reasons of practicality and historical prescription, the extension of the institution’s activities into the entirely unrelated field of funding folklife training and performances is a change of qualitative nature. The extension would thus have been made first, from an institution which serves the Congress as a library; to one which serves the public in the same capacity; and finally, to one which serves the public in capacities entirely unrelated either to congressional service or to libraries. This last extension moves the Library of Congress into areas now occupied by the National Endowment for the Arts, and the National Endowment for the Humanities (both executive agencies). II. The second constitutional problem in the bill concerns the manner in which ten members of the Board of Trustees of the American Folklife Center are to be appointed. Under the bill, the Board would perform important functions in the administration of the statutory program; its responsibilities would not be limited to advice. For example, it would give direction, not merely advice, to the Director of the Center, an official appointed by the Librarian (H.R. 6673, § 4(g)(1)); and certain functions of the Center could be undertaken only if the Board considers them “appropriate” (id. § 5(a)(5), (6)). Again, certain types of contracts may be entered into only with the concurrence of the Board. See, e.g., id. §§ 6(a), 7(a)(3), 7(a)(8). Under section 7(a)(7) a majority of two-thirds of the members of the Board may even waive otherwise applicable bonding requirements. The Board therefore performs functions of an executive nature. Its activities are not merely of an advisory nature or limited to a single task of limited duration, as is the case with so-called ad hoc officers. See The Constitution of the United States: Analysis and Interpretation, S. Doc. No. 92-82, at 523 (1973). 381 Supplemental Opinions of the Office of Legal Counsel in Volume 1 It follows that the functions of the members of the Board of Trustees can be performed only by persons who are officers of the United States and appointed in the manner prescribed by Article II, Section 2, Clause 2 of the Constitution, namely, by the President by and with the advice of the Senate, or with congressional authorization by the President alone, or the courts of law, or the heads of departments. The bill fails to comply with these constitutional requirements with respect to the following members of the Board: (a) The eight members appointed by the President pro tempore of the Senate and the Speaker of the House, respectively; (b) The Secretary of the Smithsonian Institution, who is appointed by the Board of Regents of the Smithsonian Institution (20 U.S.C. § 44), which cannot be viewed as the equivalent of a department head within the meaning of Article II; and (c) The Director of the Center who would be appointed by the Librarian of Congress who similarly does not have the status of a department head within the meaning of Article II of the Constitution. A similar problem arose in connection with the legislation establishing the Japan-United States Friendship Commission (Japan-United States Friendship Act, Pub. L. No. 94-118, 89 Stat. 603 (1975)) and in the Arts and Artifacts Indemnity Act (Pub. L. No. 94-158, 89 Stat. 844 (1975)). There, as indicated in the President’s signing statements, Statement on Signing the Japan-United States Friendship Act, 2 Pub. Papers of Pres. Gerald R. Ford 1718, 1719 (Oct. 21, 1975); Statement on Signing the Arts and Artifacts Indemnity Act, 2 id. 1990, 1991 (Dec. 22, 1975), it was possible to obviate the difficulty by considering the members appointed by the President pro tempore and the Speaker to be advisory, nonvoting members. This approach does not appear to be available here, because the improperly appointed members would constitute ten out of seventeen of the Board’s membership. For the above reasons, it is our view that the provisions of this legislation are contrary to the strict provisions of the Constitution. It must be acknowledged, however, that in the area of cultural and educational affairs, the separation of powers may not have been strictly observed. Despite the fact that they do not constitute as drastic a departure from the constitutional requirements as the present bill, those provisions of the Library of Congress statute which authorize the provision of specific services to the public must be considered a technical anomaly. Indeed, it is probably demonstrable that from an early date the primary function of the Library of Congress has been public service rather than congressional assistance. Similarly, the makeup of the Smithsonian Institution—if that is 382 Constitutionality of Bill Establishing American Folklife Center to be regarded as a federal agency, a point which is subject to some dispute— contravenes the constitutional text. Complete acceptance of this historical practice runs the risk of inviting further transfers to the Library of Congress of cultural and educational functions; and perhaps of encouraging more serious encroachments upon executive prerogatives through the assignment of entirely different functions to the General Accounting Office. Moreover, it appears from our experience with the Japan-United States Friendship Commission and the Arts and Artifacts Indemnity Act, discussed above, that only a presidential veto directed at this practice will suffice to call the attention of Congress to the problem involved. Given the very nature of all of these cultural and educational proposals, it may be vain to await an occasion for a presidential veto more propitious than the present. Nonetheless, in light of the historical practice, we think the President can responsibly sign the present legislation with the expression of his serious reservation concerning the constitutional propriety of placing such functions outside the Executive Branch.* ANTONIN SCALIA Assistant Attorney General Office of Legal Counsel * Editor’s Note: President Ford signed H.R. 6673 into law as the American Folklife Preservation Act, Pub. L. No. 94-201, 89 Stat. 1129 (Jan. 2, 1976). As advised, he expressed “serious reservations concerning the constitutional propriety of placing the functions to be performed by the Center outside the executive branch and the assignment of executive duties to officers appointed by Congress.” Statement on Signing the American Folklife Preservation Act, 1 Pub. Papers of Pres. Gerald R. Ford 6, 6 (Jan. 3, 1976). “However,” said President Ford, “given historical practice and custom in the area of cultural and educational affairs and the potential of H.R. 6673 to enrich the cultural life of the Nation, I am granting my approval to the measure.” Id. at 6-7. The American Folklife Center remains a part of the Library of Congress today. See 20 U.S.C. §§ 2101 et seq. A recent D.C. Circuit decision reached a different conclusion regarding the separation of powers and Appointments Clause issues addressed in this opinion, holding that the Library of Congress is part of the Executive Branch and that the Librarian is a department head, at least with respect to the Copyright Office. Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1342 (D.C. Cir. 2012). 383

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Government Lawyers’ Pro Bono Activities in the District of Columbia A tto rn e y s e m p lo y ed by th e fed eral g o v e rn m e n t a re b a rre d b y 18 U .S .C . § 2 0 5 from p a rtic ip a tin g in an y case in w h ic h th e D istric t o f C o lu m b ia is a p a rty o r has a d ire c t an d su b stan tial in terest. C o n c lu sio n o f 1970 o p in io n th at fed eral a tto rn e y s m ay not re p re se n t e v e n o n a v o lu n ta ry basis in d ig en t p erso n s assertin g claim s against the D istric t, affirm ed. November 3, 1980 M EM ORANDUM OPIN IO N FOR T H E STA FF DIRECTOR, FE D E R A L L EG A L COUNCIL This responds to your request on behalf of the Federal Legal Council for “an opinion as to whether [18 U.S.C. §205] necessarily bars all federal attorneys from practice in any case in which the District of Columbia is a party or has a direct and substantial interest.” At the outset we wish to point out that this Department’s position on the applicability of 18 U.S.C. §205 to matters in which the District of Columbia is a party or has an interest does not stem from the fact that District criminal cases are handled by lawyers of the United States Attorney’s Office. We originally took that position upon the enactment of § 205, and have consistently maintained it since then, because we concluded that § 205 requires it. We would maintain it even if the U.S. Attorney’s Office were to withdraw completely from prosecutive work in the District. The specific legal issue raised by the inquiry of the Council is whether a case involving the District is a “particular matter in which the United States is a party or has a direct and substantial interest” within the meaning of 18 U.S.C. §205(2). This Office had occasion to rule on the issue formally a decade ago. Then it was raised by the former Civil Service Commission in relation to a proposal by the District of Columbia Chapter of the Federal Bar Association that Dis­ trict o f Columbia and federal government attorneys be permitted to volunteer their representational services to indigent persons asserting claims against the District. Assistant Attorney General Rehnquist con­ cluded, in a March 26, 1970 opinion, that such representation is barred by § 205 because a District matter is one “in which the United States is 800 a party or has a direct and substantial interest.” We find no basis for diverging from that opinion today. We have also considered the suggestion that certain similarities in function between the District of Columbia government and that of a state provide the justification for allowing presently barred pro bono activities of federal attorneys before the District of Columbia courts. The suggestion evidences the view that the Department has the discre­ tion to permit such activities. In truth, the Department has no power of that kind. Only Congress can reduce the scope of 18 U.S.C. §205. L e o n U lm a n Deputy Assistant Attorney General Office o f Legal Counsel 801

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Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031 Under 42 U.S.C. § 13031—a provision of the Victims of Child Abuse Act of 1990—all covered professionals who learn of suspected child abuse while engaged in enumerated activities and professions on federal land or in federal facilities must report that abuse, regardless of where the suspected victim is cared for or resides. The fact that a patient has viewed child pornography may “give reason to suspect that a child has suffered an incident of child abuse” under the statute, and a covered professional is not relieved of an obligation to report the possible abuse simply because neither the covered professional nor the patient knows the identity of the child depicted in the pornography. May 29, 2012 MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF VETERANS AFFAIRS * Section 13031 of title 42, a provision in the Victims of Child Abuse Act of 1990 (“VCAA” or “Act”), Pub. L. No. 101-647, tit. II, § 226, 104 Stat. 4789, 4792, 4806, requires persons engaged in certain activities and professions on federal lands or in federal facilities to report “facts that give reason to suspect that a child has suffered an incident of child abuse” if they learn such facts in the course of their professional activities. Failure to make a report required by section 13031 could subject such persons to criminal penalties. See 18 U.S.C. § 2258. You have raised two questions about the scope of section 13031. See Letter for Eric Holder, Attorney General, from Will A. Gunn, General Counsel, Department of Veterans Affairs (Nov. 9, 2009) (“VA Letter”). First, you have asked whether section 13031’s reporting requirement is limited to situations in which the suspected victim of child abuse is cared for or resides on federal land or in a federal facility. We conclude that it is not. Instead, under the VCAA, all persons who learn of suspected child abuse (as defined by the Act) while engaged in the enumerated activities and professions on federal land or in federal facilities must report that * Editor’s Note: After this opinion was issued, 42 U.S.C. § 13031 was reclassified and renumbered as 34 U.S.C. § 20341. The statute has also repeatedly been amended by Congress since 2012, but not in any way that appears to undermine the analysis or conclusions reached by this opinion. 167 36 Op. O.L.C. 167 (2012) abuse, regardless of where the suspected victim is cared for or resides. We recognize that the scope of some of the statutory language may be ambiguous, and that narrower readings of the reporting requirement find some support in certain of the statute’s provisions. But we believe that section 13031, read as a whole and in light of its purpose, is best interpreted broadly. Second, you have inquired whether the VCAA’s reporting obligation is triggered when a person covered by section 13031 learns that a patient under his or her care has viewed child pornography, even if the person does not know, and has no reason to believe the patient knows, the identity of the child or children depicted in the pornography. We conclude that the fact that a patient has viewed child pornography may be a “fact[] . . . giv[ing] reason to suspect that a child has suffered an incident of child abuse” under section 13031, and that the statute does not require a covered professional to possess knowledge of the identity of an affected child in order for the reporting duty to apply. We have concluded that the interpretive questions you have raised can be resolved using ordinary tools of statutory construction, so we have not applied the rule of lenity even though the VCAA provides for criminal penalties. We note, however, that a person who fails to make a report required by section 13031 will not necessarily be subject to criminal penalties under the statute. The criminal penalty provision contains no explicit mens rea requirement, and thus one would almost certainly be inferred. See United States v. X-Citement Video, Inc., 513 U.S. 64, 70 (1994). While we need not decide what mens rea would apply, a court construing section 13031 might well require a defendant to have known that a report was legally required before imposing criminal liability for a failure to report. Such a reading would, among other things, address any concern about imposing criminal liability on persons who lacked clear notice that the failure to report in their particular circumstances was unlawful. I. Congress enacted the VCAA, including section 13031, as title II of the Crime Control Act of 1990. Pub. L. No. 101-647, §§ 201–255, 104 Stat. at 4792–4815. Section 13031 requires persons on “Federal land or in a 168 Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031 federally operated (or contracted) facility” who are engaged in certain activities—individuals the statute calls “[c]overed professionals”—to report suspected incidents of child abuse. 42 U.S.C. § 13031(a)–(b) (2006). Specifically, section 13031(a) provides that [a] person who, while engaged in a professional capacity or activity described in subsection (b) of this section on Federal land or in a federally operated (or contracted) facility, learns of facts that give reason to suspect that a child has suffered an incident of child abuse, shall as soon as possible make a report of the suspected abuse to the agency designated under subsection (d) of this section. 1 Section 13031(d) directs the Attorney General to designate the agency or agencies to which the reports described in subsection (a) should be made. It states: For all Federal lands and all federally operated (or contracted) facilities in which children are cared for or reside, the Attorney General shall designate an agency to receive and investigate the reports described in subsection (a) of this section. By formal written agreement, the designated agency may be a non-Federal agency. When 1 Subsection (b) provides: Persons engaged in the following professions and activities are subject to the requirements of subsection (a) of this section: (1) Physicians, dentists, medical residents or interns, hospital personnel and administrators, nurses, health care practitioners, chiropractors, osteopaths, pharmacists, optometrists, podiatrists, emergency medical technicians, ambulance drivers, undertakers, coroners, medical examiners, alcohol or drug treatment personnel, and persons performing a healing role or practicing the healing arts. (2) Psychologists, psychiatrists, and mental health professionals. (3) Social workers, licensed or unlicensed marriage, family, and individual counselors. (4) Teachers, teacher’s aides or assistants, school counselors and guidance personnel, school officials, and school administrators. (5) Child care workers and administrators. (6) Law enforcement personnel, probation officers, criminal prosecutors, and juvenile rehabilitation or detention facility employees. (7) Foster parents. (8) Commercial film and photo processors. 169 36 Op. O.L.C. 167 (2012) such reports are received by social services or health care agencies, and involve allegations of sexual abuse, serious physical injury, or life-threatening neglect of a child, there shall be an immediate referral of the report to a law enforcement agency with authority to take emergency action to protect the child. All reports received shall be promptly investigated, and whenever appropriate, investigations shall be conducted jointly by social services and law enforcement personnel, with a view toward avoiding unnecessary multiple interviews with the child. Consistent with this directive, the Attorney General has issued a regulation designating the agencies authorized to receive and investigate reports of child abuse submitted under section 13031(a). That rule, which appears as 28 C.F.R. § 81.2 (2010), provides: Reports of child abuse required by 42 U.S.C. 13031 shall be made to the local law enforcement agency or local child protective services agency that has jurisdiction to investigate reports of child abuse or to protect child abuse victims in the land area or facility in question. Such agencies are hereby respectively designated as the agencies to receive and investigate such reports, pursuant to 42 U.S.C. 13031(d), with respect to federal lands and federally operated or contracted facilities within their respective jurisdictions, provided that such agencies, if non-federal, enter into formal written agreements to do so with the Attorney General, her delegate, or a federal agency with jurisdiction for the area or facility in question. If the child abuse reported by the covered professional pursuant to 42 U.S.C. 13031 occurred outside the federal area or facility in question, the designated local law enforcement agency or local child protective services agency receiving the report shall immediately forward the matter to the appropriate authority with jurisdiction outside the federal area in question. Att’y Gen. Order No. 2009-96, 61 Fed. Reg. 7704 (Feb. 29, 1996). Under section 13031, “the term ‘child abuse’ means the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child.” 42 U.S.C. § 13031(c)(1). Section 13031 further explains that “the term “sexual abuse” includes the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another 170 Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031 person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.” Id. § 13031(c)(4). “[T]he term ‘exploitation’ means child pornography or child prostitution.” Id. § 13031(c)(6). Two other provisions in section 13031 are also relevant. Section 13031(e) provides that “[i]n every federally operated (or contracted) facility, and on all Federal lands, a standard written reporting form, with instructions, shall be disseminated to all mandated reporter groups,” and makes clear as well that although “[u]se of the form shall be encouraged, . . . its use shall not take the place of the immediate making of oral reports . . . when circumstances dictate.” Section 13031(h) provides that “[a]ll individuals in the occupations listed in subsection (b)(1) of this section who work on Federal lands, or are employed in federally operated (or contracted) facilities, shall receive periodic training in the obligation to report, as well as in the identification of abused and neglected children.” Finally, in section 226(g)(1) of the VCAA (codified as amended at 18 U.S.C. § 2258), Congress criminalized the failure to report child abuse as mandated by 42 U.S.C. § 13031. The criminal provision states: A person who, while engaged in a professional capacity or activity described in subsection (b) of section 226 of the Victims of Child Abuse Act of 1990 [42 U.S.C. § 13031] on Federal land or in a federally operated (or contracted) facility, learns of facts that give reason to suspect that a child has suffered an incident of child abuse, as defined in subsection (c) of that section, and fails to make a timely report as required by subsection (a) of that section, shall be fined under this title or imprisoned not more than 1 year or both. 18 U.S.C. § 2258 (2006). When the VCAA was originally enacted, the offense was a Class B misdemeanor punishable by six months of imprisonment, Pub. L. No. 101-647, § 226(g)(1), 104 Stat. at 4808; see 18 U.S.C. § 3581(b)(7) (1988), but in 2006, Congress amended 18 U.S.C. § 2258 by raising the maximum punishment from six months to one year of imprisonment. Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 209, 120 Stat. 587, 615. Other than this change, Congress has amended neither 18 U.S.C. § 2258 nor 42 U.S.C. § 13031 since it enacted the provisions in 1990. 171 36 Op. O.L.C. 167 (2012) II. A. We first consider the circumstances under which covered professionals must report suspected child abuse under the VCAA. 2 We conclude that, although no interpretation of section 13031 perfectly reconciles all of its provisions, section 13031 is best read to impose a reporting obligation on all persons who, while engaged in the covered professions and activities on federal lands or in federal facilities, learn of facts that give reason to suspect that child abuse has occurred, regardless of where the abuse might have occurred or where the suspected victim is cared for or resides. In reaching this conclusion, we considered the construction of section 13031 that you propose, as well as two other readings that would narrow the reporting obligation. As explained below, while all of these narrowing constructions find support in certain provisions of the statute, they are also in significant tension with other parts of section 13031, leading us to conclude that section 13031 “‘as a whole’” is best read to impose the broad reporting obligation described above. See United States v. Atl. Rsch. Corp., 551 U.S. 128, 135 (2007) (quoting King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991)). Section 13031(a) sets forth the reporting requirement that is the VCAA’s core directive. It provides that a covered professional engaged in a covered activity “on Federal land or in a federally operated (or contracted) facility” who “learns of facts that give reason to suspect that a child 2 In preparing our opinion, we considered views provided by your office, the Department of Justice’s Criminal Division, the Department of Defense, the Department of State, and the Attorney General’s Advisory Council. See E-mail for Jeannie S. Rhee, Deputy Assistant Attorney General, Office of Legal Counsel (“OLC”), from Alexandra Gelber, Criminal Division (Jan. 15, 2010, 10:15 AM); E-mail for Jeannie S. Rhee, Deputy Assistant Attorney General, OLC, from John Casciotti, Office of General Counsel, Department of Defense (Feb. 26, 2010, 5:02 PM); E-mail for Jeannie S. Rhee, Deputy Assistant Attorney General, OLC, from Robert Choo, Office of the Legal Adviser, Department of State (July 21, 2010, 2:35 PM); E-mail for Cristina M. Rodríguez, Deputy Assistant Attorney General et al., from Carter Stewart, United States Attorney for the Southern District of Ohio (Feb. 3, 2012, 6:45 PM). We also solicited the opinion of the Department of Health and Human Services, which indicated that it “has no view about the interpretation advanced by the Veterans Administration.” E-mail for Jeannie S. Rhee, Deputy Assistant Attorney General, OLC, from Elizabeth J. Gianturco, Senior Advisor to the General Counsel, Department of Health and Human Services (Apr. 21, 2010, 2:16 PM). 172 Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031 has suffered an incident of child abuse, shall as soon as possible make a report of the suspected abuse to the agency designated under subsection (d) of this section.” On its face, this is a broad provision: It applies to covered professionals on all federal lands and in all federal facilities and requires a report as soon as possible no matter where the suspected child victim resides, is cared for, or may have been abused. The express incorporation of subsection (d), however, gives rise to doubt about the scope of subsection (a)’s reporting requirement, because subsection (d) appears to require the Attorney General to designate an agency to receive reports only “[f]or all Federal lands and all federally operated (or contracted) facilities in which children are cared for or reside.” The central question, then, is whether the cross-reference to subsection (d) limits subsection (a)’s otherwise broad language, and if so, in what way. 3 You suggest that it would be reasonable to read the reporting requirement as applying “only with regard to suspected abuse of children residing or cared for on Federal lands and in federally operated and contracted facilities,” because “42 U.S.C. § 13031(a) requires reporting only to agencies as designated under subsection (d), and subsection (d) provides for designation only of agencies to receive and investigate reports for Federal reservations in which children are cared for or reside.” VA Letter at 2. In other words, you maintain that, because subsection (d) specifies agencies to receive reports only for “Federal lands and . . . facilities in which children are cared for or reside,” Congress intended to require reports only for suspected abuse of children who reside or are cared for on federal lands or in federal facilities. Moreover, it might be argued that when the Attorney General designates an agency to receive reports for federal lands and facilities in which children are not cared for and do not reside, he is not making designations “under” subsection (d), because that provision expressly addresses designations only for federal lands and facilities “in which children are cared for or reside.” This construction of section 13031, in your view, would appropriately align the location of the 3 We assume for purposes of this opinion, as do you, that the phrase “in which children are cared for or reside” modifies both “Federal lands” and “federally operated (or contracted) facilities.” VA Letter at 2 (“subsection (d) provides for designation . . . of agencies to receive and investigate reports for Federal reservations in which children are cared for or reside”). The Attorney General’s regulations do not address the issue, 28 C.F.R. pt. 81 (2010), nor do any of the submissions we received. 173 36 Op. O.L.C. 167 (2012) suspected child victims with subsection (d)’s designation of agencies to receive reports. This interpretation is not without some force, but we believe it is inconsistent with other subsections of section 13031 and with the statute viewed in its entirety. See Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”). As noted above, Congress phrased subsection (a) using broad language that contains no limitation on the federal lands or facilities in which reporting is required, and no residence-based limitation on the suspected child victims whose potential abuse can give rise to a reporting obligation. In fact, section 13031 as a whole is devoid of any language that explicitly limits the suspected child victims whose potential abuse triggers the reporting requirement. If Congress had intended to limit the scope of the VCAA’s reporting requirement in the significant manner you propose, an isolated crossreference to subsection (d) would have been an obscure and backhanded way to do so. Cf. Allied Chem. & Alkali Workers of Am., Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 170–71 (1971) (“To accept the Board’s reasoning that the union’s § 302(c)(5) responsibilities dictate the scope of the § 8(a)(5) collective-bargaining obligation would be to allow the tail to wag the dog.”). Subsection (d) is entitled “[a]gency designated to receive report and action to be taken,” and purports to address only the agencies to which reports must be made, not the professionals who must make reports or the children who may be the subject of reports. Nothing in subsection (d) expressly narrows the scope of potential child victims covered by the reporting requirement. Cf. Comm’r v. Clark, 489 U.S. 726, 739 (1989) (“In construing provisions . . . in which a general statement of policy is qualified by an exception, we usually read the exception narrowly in order to preserve the primary operation of the provision.”). Indeed, subsection (d) does not say that the Attorney General may only designate agencies to receive reports for federal lands and facilities “in which children are cared for or reside.” It simply specifies that the Attorney General “shall designate an agency to receive and investigate” reports for such lands and facilities, saying nothing about what the Attorney General should do with respect to other federal lands and facilities. And in 174 Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031 implementing this authority, the Attorney General has in fact specified reporting locations for all covered professionals who learn of any covered abuse while engaged in their profession or activity on any federal land or facility, not solely abuse connected to lands or facilities where children are cared for or reside. See 28 C.F.R. § 81.2. The broad reading of the reporting requirement gains further support from two other provisions in the VCAA that unambiguously apply to all federal lands and facilities, not just those where children are cared for or reside. Subsection (e) requires dissemination of a standard written reporting form to “all mandated reporter groups” “[i]n every federally operated (or contracted) facility, and on all Federal lands.” In other words, reporting forms must be disseminated not only to federal lands and facilities where children are cared for or reside, but to all federal lands and facilities. This provision thus appears to presume that mandated reporter groups exist in every federally operated or contracted facility and on all federal lands. This presumption, in turn, strongly suggests that Congress intended to require the reporting of abuse discovered by covered professionals in the course of their covered activities on all federal lands and in all federal facilities, not simply abuse that occurs on the lands and in the facilities where children are cared for or reside. Subsection (h) embodies a similar premise. That provision, entitled “[t]raining of prospective reporters,” requires “periodic training in the obligation to report, as well as in the identification of abused and neglected children,” for “[a]ll individuals in the occupations listed in subsection (b)(1) of this section who work on Federal lands, or are employed in federally operated (or contracted) facilities.” Again, this provision appears to assume that all individuals who work in the listed occupations on all federal lands and in all federal facilities—not solely those where children are cared for or reside—might encounter suspected abuse that must be reported. This further suggests that Congress intended to require covered professionals working on all federal lands and in all federal facilities to report suspected abuse, because the across-the-board training requirement otherwise would serve no clear purpose. The broad reading of the reporting requirement is also consistent with the scope of subsection (b). Subsection (b)’s specific list of relevant professions and activities echoes the mandatory reporter provisions of numerous state laws requiring the reporting of abuse. Compare 42 U.S.C. 175 36 Op. O.L.C. 167 (2012) § 13031(b) (list set forth supra note 1), with Child Welfare Information Gateway, Dep’t of Health & Human Services, Mandatory Reporters of Child Abuse and Neglect: Summary of State Laws at 2 (Apr. 2010) (“Summary of State Laws”), http://www.childwelfare.gov/systemwide/ laws_policies/statutes/manda.pdf (last visted ca. May 2012). The reporting requirement, as defined in subsections (a) and (b), focuses on the nature of the covered professional’s employment activity, not the place where the child victim is cared for or resides. Indeed, many of the covered professionals—such as film processors, coroners, and ambulance drivers—would likely learn of suspected child abuse in circumstances that provide no indication whether the child victim is cared for or resides on federal lands or in a federal facility. The VCAA’s legislative history also reflects a congressional intent to enact a far-reaching reporting obligation that would protect as many victims of suspected child abuse as possible. Senator Biden, a co-sponsor of the legislation, called it a “sweeping title aimed at mak[ing] our criminal justice system more effective in cracking down on child abusers, and more gentle in dealing with the child abuse victims.” 136 Cong. Rec. 36,312 (1990); see also id. at 16,240 (statement of Sen. Biden) (“[Y]ou, the innocent bystander, you, the third party, you have a legal obligation to report when you observe or have reason to believe that an abuse of an innocent child takes place.”); id. at 16,238 (statement of co-sponsor Sen. Reid) (“A critical step in protecting our children is to identify child victims . . . before it is too late. My proposed bill of rights requires certain professionals to identify who they suspect are victims of abuse and neglect.”). As we recognize above, our interpretation of the statute does not reconcile perfectly all of the statute’s parts, specifically subsection (a)’s crossreference to subsection (d). Read in context, however, we think subsection (d) need not and should not be construed to limit either the scope of the reporting requirement under subsection (a) or the Attorney General’s authority to designate agencies to receive the required reports. Such an interpretation would be in marked tension with the breadth of subsection (a)’s terms, the requirements of subsections (e) and (h), the scope of subsection (b), and the general evidence of Congress’s intent. The two additional narrowing constructions we identified also fail to make better sense of the statute than the broad reading we have adopted. 176 Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031 We first considered whether the reporting requirement should be limited to situations involving children who had been abused on federal lands or facilities. But under this reading, as under your suggested reading, we would have to conclude that Congress acted to limit the apparently broad reporting requirement set forth in subsection (a) through the oblique mechanism of a cross-reference to subsection (d). What is more, this reading, too, would make it difficult to explain the breadth of the mandated training and provision of forms on all federal lands and in all federal facilities in subsections (e) and (h) and the scope of covered professionals in subsection (b). Further, and significantly, this reading would narrow the class of children whose suspected abuse could give rise to a required report, despite the fact that no provision in the statute—including subsection (d)—addresses the location of the suspected abuse. We also considered a third alternative reading—one that would require reporting only from covered professionals who engage in the specified professions and activities on federal lands or in federal facilities where children are cared for or may have been abused. This construction, too, would rest on a presumption that Congress intended to limit the scope of the reporting obligation through a single cross-reference to subsection (d). Further, it would be in particularly sharp tension with subsections (e) and (h), which require training and distributing reporting forms on all federal lands and in all federal facilities, not just where children are cared for or reside. This reading would also produce an anomalous result—a professional’s obligation to report facts giving reason to suspect that a child unconnected with federal lands or facilities had been abused would turn on the apparently unrelated question whether other children happened to be cared for or reside on the lands or in the facility where the professional works. In our judgment, these difficulties make this interpretation less coherent than the broad reading we have given the statute. We therefore conclude that the best reading of section 13031 as a whole is that a covered professional is required to report suspected child abuse discovered while engaged in the professions or occupations specified in subsection (b) on federal lands or in federal facilities. 4 This interpretation of the reporting requirement is consistent with the law of most states. “All States, the District of Columbia, [and all U.S. territories] have statutes identifying persons who are required to report child maltreatment under specific circumstances,” and, in most states, the list of individuals with reporting obligations closely resembles 4 177 36 Op. O.L.C. 167 (2012) B. We next consider whether “the mere knowledge that a patient has viewed child pornography [would] trigger a covered professional’s duty to report the suspected child abuse, even if he or she does not know the identity of the child or children depicted and has no reason to believe the patient knew their identity.” VA Letter at 2. 5 In raising this question, you point to language in a later part of subsection (d) providing that, when reports required by subsection (a) are “received by social services or health care agencies, and involve allegations of sexual abuse, serious physical injury, or life-threatening neglect of a child, there shall be an immediate referral of the report to a law enforcement agency with authority to take emergency action to protect the child.” Based on subsection (d)’s reference to “the” child, you note that, while it is clear that “the [reporting] requirement applies when the identity of an abused child can be determined by the covered provider so that the law-enforcement agency with jurisdiction can be identified, . . . it is less clear . . . that it applies when that is not the case.” VA Letter at 2. 6 We conclude, however, that the text of the statute covers the situation you describe. the list of covered professionals in section 13031. Summary of State Laws at 1–2. In fact, some jurisdictions require all persons, not just certain professionals, to report suspected child abuse. Id. at 3. Thus, many, if not all, covered professionals who learn of suspected child abuse on federal lands or in federal facilities would also be required to report under state laws. Covered professionals should therefore consult relevant state law to ensure that they are fully informed about the scope of their legal reporting requirements. 5 As we have noted, section 13031(b) subjects a wide range of individuals to the reporting duty of subsection (a), including physicians, pharmacists, school officials, detention facility employees, and commercial film and photo processors. See supra note 1 (quoting 42 U.S.C. § 13031(b)). Those covered professionals thus may learn of possible child abuse from a variety of individuals besides those commonly referred to as “patients.” For simplicity, however, we use the term “patient” as shorthand for any person from whom a covered professional may learn of potential child abuse. 6 Similarly, the Department of Defense states that its relevant policy “does not contemplate that the statute applies in a situation where the patient merely blurts out that he has an addiction to child pornography.” Instead, under its policy, reporting would be required in contexts where the patient “is drawn to a particular child,” “knows the identity or whereabouts of a child depicted in the pornography,” “help[s] to produce the pornography,” or in other contexts where “there is an identifiable child or identifiable children that could be the subject of action by the child protective agency.” E-mail for Jeannie S. Rhee, Deputy Assistant Attorney General, OLC, from John Casciotti, Office of General Coun- 178 Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031 The text of section 13031(a) imposes a reporting duty on a covered professional “who, while engaged in a professional capacity or activity described in subsection (b) . . . , learns of facts that give reason to suspect that a child has suffered an incident of child abuse.” “[C]hild abuse,” in turn, is defined as “the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child.” 42 U.S.C. § 13031(c)(1). The statute further provides that “the term ‘sexual abuse’ includes the employment [or] use . . . of a child to engage in . . . sexual exploitation of children,” and that “the term ‘exploitation’ means child pornography or child prostitution.” Id. § 13031(c)(4), (6). Under these definitions, covered professionals must report suspected abuse if they learn of facts giving reason to suspect that a child “has suffered an incident of [employment or use to engage in child pornography],” 7 or “has suffered an incident of [child pornography].” Although section 13031 does not define the term “child pornography,” it is defined elsewhere in the U.S. Code as any visual depiction, . . . whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where— sel, Department of Defense (Feb. 26, 2010, 5:02 PM). The Department of State “does not have a formal position or policy addressing whether the reporting requirement is triggered when a covered professional learns that someone has viewed child pornography, but the professional does not know the identity of the child or children depicted and has no reason to believe that the viewer knows their identities.” E-mail for Jeannie S. Rhee, Deputy Assistant Attorney General, OLC, from Robert Choo, Office of the Legal Adviser, Department of State (July 21, 2010, 2:35 PM). It recognizes, however, that this situation “may trigger other actions including the enforcement of child pornography laws, if applicable, or internal discipline.” Id. 7 The substitution in the text is not completely straightforward, in that the statute defines “exploitation”—without any qualification—to include “child pornography or child prostitution,” but defines “sexual abuse” to include “rape, molestation, prostitution, or other form[s] of sexual exploitation of children.” Compare 42 U.S.C. § 13031(c)(6) (definition of “exploitation”), with id. § 13031(c)(4) (definition of “sexual abuse”). We do not think, however, that the statute intends to draw a strong distinction between “exploitation” and “sexual exploitation.” The latter phrase is not a defined term. And the statute in other respects seems to treat the two terms as essentially interchangeable. In particular, the definition of “sexual abuse” expressly provides that “prostitution . . . of children” is a form of “sexual exploitation of children,” and the definition of “exploitation” similarly provides that “child prostitution” is a form of “exploitation.” Id. § 13031(c)(4), (6). 179 36 Op. O.L.C. 167 (2012) (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is . . . of a minor engaging in sexually explicit conduct; or (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct. 18 U.S.C. § 2256(8). 8 This definition is consistent with dictionary definitions of child pornography. See, e.g., Black’s Law Dictionary 1279 (9th ed. 2009) (defining “child pornography” as “[m]aterial depicting a person under the age of 18 engaged in sexual activity”). Under these definitions, child pornography is not a specific action or set of actions, but an end product, a particular kind of visual depiction that is “made or produced.” 18 U.S.C. § 2256(8). It is thus not entirely clear what it means “to engage in child pornography,” or for “a child” to have “suffered an incident of” child pornography. Notably, however, certain other forms of “child abuse” in section 13031 are also defined as end results rather than actions. “[P]hysical injury,” for example, is defined to include, among other things, “lacerations, fractured bones, burns, [and] internal injuries.” 42 U.S.C. § 13031(c)(2). And it is relatively straightforward to conclude that a child has “suffered an incident of” lacerations or fractured bones if the child has been subjected to physical abuse that results in those injuries. We think it is similarly clear that, whatever else the phrase may include, a person has “engage[d] in child pornography” if that person has produced or created pornographic images of children, and that “a child has suffered an incident of ” child pornography if that child has been made the subject of pornographic images. The pornography is “a permanent record” of the abusive conduct of creating a pornographic image of a child. New York v. Ferber, 458 U.S. 747, 759 (1982). Based on this analysis, we conclude that a covered professional who learns that a patient under his or her care has viewed child pornography may be aware of “facts that give reason to suspect that a child”—the Other definitions in section 13031, including the definition of “sexually explicit conduct”—a concept closely related to “child pornography,” as the definition quoted above makes clear—track definitions in the same chapter (chapter 110) of the criminal code. Compare 42 U.S.C. § 13031(c)(5) (2006), with 18 U.S.C. § 2256(2) (2006). 8 180 Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031 subject of the specific pornographic images viewed by the patient—“has suffered an incident of child abuse.” 42 U.S.C. § 13031(a). We do not believe a covered professional in such a situation is relieved of an obligation to report such facts simply because he or she does not know or have reason to know, or have reason to believe a patient knows, the identity of the child depicted in the pornography. Subsections (a) and (d) of section 13031 do not require, either expressly or by implication, that a covered professional (or his or her patient) know the identity of the child or children abused in order to have a reporting obligation. We generally “‘resist reading words or elements into a statute that do not appear on its face.’” Dean v. United States, 556 U.S. 568, 572 (2009) (quoting Bates v. United States, 522 U.S. 23, 29 (1997)). Moreover, imposing a requirement that the victim’s identity be known would be in tension with Congress’s protective purpose. See, e.g., 136 Cong. Rec. 36,312 (1990) (statement of Sen. Biden) (noting that the statute would “make [the] criminal justice system more effective in cracking down on child abusers”). Even assuming that the statute’s references to “a child” in section 13031(a) and (d) limit the reporting requirement to situations involving “a” specific, potentially identifiable child, that limitation provides no basis for imposing the additional prerequisites to reporting that the covered professional know or have reason to believe his or her patient knows the identity of a child depicted in pornography the patient admits to viewing. Pornography may well involve “a” specific, potentially identifiable child even if neither covered professionals nor their patients know the child’s identity. Even if covered professionals (or their patients) do not know the identity of any children depicted in pornography viewed by a patient, a report may lead authorities to specific, identifiable children. While some child pornography may be the work of professionals and therefore difficult to link to specific identifiable children, other such images are homemade recordings, taken in domestic contexts, of sexually abusive acts “committed against young neighbors or family members,” and therefore traceable through law enforcement investigation to a particular child or children. Philip Jenkins, Beyond Tolerance: Child Pornography on the Internet 82 (2001); see also Richard Wortley & Stephen Smallbone, Community Oriented Policing Services, Dep’t of Justice, Problem-Oriented Guides for Police, Problem-Specific Guides Series No. 41, Child Pornography on the Internet at 9 (2006), http:// 181 36 Op. O.L.C. 167 (2012) www.cops.usdoj.gov/Publications/e04062000.pdf (last visited ca. 2012) (“[M]ore commonly, amateurs make records of their own sexual abuse exploits, particularly now that electronic recording devices such as digital cameras and web cams permit individuals to create high quality, homemade images.”). For the same reasons, section 13031(d)’s statement that, in certain circumstances, social services or health care agencies must refer reports of suspected child abuse “to a law enforcement agency with authority to take emergency action to protect the child” (emphasis added) should not be read to restrict the reporting obligation to situations in which covered professionals know the identity of the children who are the victims of suspected abuse. This law-enforcement referral requirement applies not to covered professionals, but to the “social services or health care agencies” that receive reports of suspected child abuse. 42 U.S.C. § 13031(d). The statute expressly contemplates that the agency receiving the report, not the covered professional, must ascertain which law enforcement agency is “authori[zed] to take emergency action to protect the child.” Id. And although the referral requirement could be read to reflect an assumption that these agencies generally will know the identity of the child in need of protection, the requirement also could be satisfied by identifying a law enforcement agency with authority to initiate an investigation to ascertain the identity and location of the suspected victim. We therefore conclude that the fact that a patient has viewed child pornography may constitute a “fact[] that give[s] reason to suspect that a child has suffered an incident of child abuse” under section 13031, and that a covered professional is not relieved of the obligation to report such a fact simply because the identity of the injured child is unknown. C. As noted, the VCAA provides for criminal penalties. 18 U.S.C. § 2258. When interpreting a statute’s civil provision, the violation of which is also subject to criminal sanction, the rule of lenity may be invoked to resolve ambiguity in the provision. See Leocal v. Ashcroft, 543 U.S. 1, 11–12 & n.8 (2004); United States v. Thompson/Center Arms Co., 504 U.S. 505, 517–18 & n.10 (1992) (plurality opinion). Here, however, we resolved both of the interpretive questions you presented without employing the rule of lenity, because we concluded 182 Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031 that the provisions at issue did not present any “grievous ambiguity or uncertainty” that could not be addressed by applying ordinary tools of statutory construction. Muscarello v. United States, 524 U.S. 125, 139 (1998) (internal quotation marks omitted). We recognize, however, that the statutory trigger for the reporting requirement—the learning of “facts that give reason to suspect that a child has suffered an incident of child abuse”—is extremely broad. For example, the statute’s text does not appear to require either that the suspected abuse have occurred recently or that there be a direct connection between the facts and a particular perpetrator of or witness to abuse. Thus, a doctor’s duty to report conceivably could be triggered by a patient’s revelation that his neighbor confided that he was abused as a child some decades ago, a patient’s revelation that acquaintances long ago had viewed child pornography, or a patient’s expression of amazement that he had learned from the Internet that child abuse or child pornography was far more prevalent than he had previously believed. 9 Because failures to report may be criminally prosecuted, courts may be concerned about the uncertain breadth of the suspected abuse that may be subject to section 13031’s reporting requirement, particularly when combined with the ambiguities discussed in Parts II.A and II.B. You have not asked us to define the boundaries of the phrase “facts that give reason” to suspect child abuse or to discuss the application of 18 U.S.C. § 2258, but we note that covered professionals who fail to make a report required by the statute may not always be criminally liable for their failure to do so. Significantly, although the VCAA’s criminal penalty provision lacks an express mens rea requirement, courts generally “interpret[] criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.” X-Citement Video, 513 U.S. at 70. 10 Courts deciding whether to impose 9 We do not consider here whether other aspects of the language quoted in the text above, or of language elsewhere in the statute, might limit its application in some such situations. A court might also adopt a narrowing construction of the statutory trigger for the reporting requirement to avoid notice concerns. See Skilling v. United States, 130 S. Ct. 2896, 2931 (2010). 10 As the Supreme Court has explained, the presumption that a statute contains a mens rea requirement even when that requirement is not explicit in the statutory text is consistent with the rule of lenity. See Liparota v. United States, 471 U.S. 419, 427–28 (1985). 183 36 Op. O.L.C. 167 (2012) criminal penalties on a covered professional for failing to file a report would have to decide (i ) whether to construe 18 U.S.C. § 2258 to impose a mens rea requirement, and (ii) if they do so, what the required mens rea is. And while for some statutes, courts have required only that a defendant have knowledge of the “facts that make his conduct illegal,” Staples v. United States, 511 U.S. 600, 605 (1994), for others, courts have required that a defendant know that his or her conduct was “unauthorized or illegal” before criminal liability could be imposed, particularly where failure to impose such a requirement would “criminalize a broad range of apparently innocent conduct,” Liparota v. United States, 471 U.S. 419, 426, 434 (1985). Here, a court concerned about ordinary citizens’ ability to decipher the contours of the abuse that must be reported, or about the statute’s punishment of a failure to act rather than an affirmative act, might be inclined to adopt this kind of heightened mens rea requirement. See Skilling v. United States, 130 S. Ct. 2896, 2927–28 (2010) (noting that a “‘criminal offense’” must be defined “‘with sufficient definiteness that ordinary people can understand what conduct is prohibited’” (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983))); id. at 2933 (noting that a “mens rea requirement” can help “blunt[] . . . notice concern[s]”); Lambert v. California, 355 U.S. 225, 228 (1957) (holding that due process requires that a person who is “wholly passive and unaware of any wrongdoing” have notice of a registration requirement before she may be held criminally liable). III. In sum, any person who, while engaged in a professional capacity or activity described in subsection (b) of section 13031 on any federal land or in any federally operated (or contracted) facility, learns of “facts that give reason to suspect that a child has suffered any incident of child abuse” must report the suspected abuse to a designated agency. The fact that a patient has viewed child pornography may “give reason to suspect that a child has suffered an incident of child abuse” under the statute, and Inferring a mens rea requirement is, however, a distinct practice from applying the rule of lenity, and the Court has suggested that lenity principles may not apply in determining the degree of mens rea that is required. See Staples v. United States, 511 U.S. 600, 619 n.17 (1994). 184 Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031 a covered professional is not relieved of an obligation to report the possible abuse simply because neither the covered professional nor the patient knows the identity of the child depicted in the pornography. As described, however, a covered professional’s failure to file a required report will not necessarily result in criminal liability. VIRGINIA A. SEITZ Assistant Attorney General Office of Legal Counsel 185

Write a legal research memo on the following topic.

Applicability of 21 U.S.C. § 952(a) to the Importation of Morphine Sulfate by the General Services Administration The provision in 21 U .S C . § 952(a), w hich prohibits im portation of certain controlled substances ex cep t in c e rta in sp e c ifie d c irc u m sta n c e s , a p p lie s to im p o rta tio n by the U nited S tates G overnm ent. Notw ithstanding the canon of statutory construction that a law should not be read to im pose new burdens on the governm ent in derogation of its preexisting nghts and privileges, well-established and consistent adm inistrative practice and interpretation of the coverage of 2 1 U .S .C . § 952(a), as well as its legislative history, indicate that that law covers im portations by the U nited States governm ent. October 18, 1982 MEMORANDUM OPINION FOR THE COMMISSIONER, FEDERAL PROPERTY RESOURCES SERVICE, GENERAL SERVICES ADMINISTRATION This responds to your request for our opinion whether 21 U.S.C. § 952(a) applies to the importation of controlled substances by the United States or its agents. This question has arisen in the context of a proposed importation of morphine sulfate from Turkey, with which your agency has been involved. Section 952(a) of Title 21, U.S. Code, is a central provision of the Controlled Substances Import and Export Act of 1970 (the Act).1 The broad terms of § 952(a) provide that it ‘“shall be unlawful” to import into the United States controlled substances except in certain circumstances.2 On its face, § 952(a) does not exclude the United States from its coverage. On the other hand, it also does not specifically include the United States. Accordingly, in view of the fact that the provision imposes limitations on those whom it covers, and in light of the longstanding canon of statutory construction that statutes imposing burdens should not lightly be read to deny governments preexisting rights or privileges,3 a 1Title III of the Comprehensive Drug Abuse Prevention and Control Act of 1970 is entitled the Controlled Substances Import and Export Act of 1970. As its name indicates. Title III places a number of restrictions on the import into and export from the United States of controlled substances See Pub. L. No. 91-513, Title III. 91st Cong., 2d Sess , 84 Stat. 1285, 21 U S C. §§ 951-966 2 The language of 21 U.S C § 952(a) is quoted in its entirety in part II infra 3 This canon of statutory construction is stated in a number o f judicial opinions. See, e.g., Hancock v Train, 426 U S. 167, 179 (1976); United States v. Wittek, 337 U S. 346 (1949); United States v. United Mine Workers c f America. 330 U S. 258, 272-73(1947); United States v Herron. 87 U.S. (20 Wall ) 251 (1874); United States v. Knight, 39 U .S. (14 Pet ) 301 (1840) 577 question arises whether the statute does in fact cover importations by the United States, such as that proposed in this case. We have concluded that, despite the canon of construction referred to in the previous paragraph, the statute and pertinent legislative materials do demonstrate Congress’ intention that the law’s limitations apply broadly. This intention would not be consistent with implying a general exception for actions by the United States or its agents. This view is strongly buttressed by the fact, discussed below, that the federal agency most directly responsible for enforcing the Act— the Drug Enforcement Administration (DEA)— consistently has taken the position that the statute does reach actions by the United States. In such circumstances, we find no adequate justification in the canon of interpretation— a device for use in doubtful cases— for concluding that 21 U .S.C . § 952(a) does not apply to actions by the United States. In practical terms, this means that the importation by the United States of controlled substances referred to in § 952(a) is prohibited unless one of the exceptions in § 952(a) is found to pertain. I. Background Facte Your opinion request follows an earlier opinion of this Office, dated July 19, 1982, which also dealt with the proposed importation of morphine sulfate from Turkey.4 In that opinion, we assumed arguendo that § 952(a)’s proscription on the importation of controlled substances, except in certain circumstances, does cover actions by the United States.5 Passing that issue, we noted that further attention might profitably be paid to the exceptions themselves, viewed in light of the particular facts concerning the proposed importation of morphine sulfate. Specifically, we suggested that the involved agencies should ascertain whether the “ emergency” exception in 21 U.S.C. § 952(a)(2)(A) could apply to the proposed importation of morphine sulfate for purposes of replenishing the National Defense Stockpile’s supply of such substances. We noted that we were not aware of whether the facts would establish the basis for invoking such an exception. Nevertheless, we sought to identify the appropriate lines of inquiry.6 Having done so, we indicated that if the facts would not support the use of the emergency exception, we would be glad to address the underlying legal question regarding 21 U .S.C . § 952(a)’s applicability to the United States. 4 See M emorandum for Francis M. Mullen, J r., Acting Administrator, Drug Enforcement Administration, from Theodore B . Olson, Assistant Attorney Genera), Office of Legal Counsel, entitled “ Importation of Morphine Sulfate from TUrkey” (July 19,1982). [Note: The July 19,1982 opinion is reprinted in this volume at p. 455, supra. Ed.] 5 We noted in the July 19,1982 opinion not only that an argument could be made that21 U .S.C . § 952(a)doesnot apply to the United States, but also that a contrary argument could be advanced. In view of the lack of any sure footing for the contention regarding the nonapplicability of § 952(a) to the United States, we suggested that further attention be paid to the possibility o f utilizing the statutory exception for an emergency in present circumstances. 6 For instance, we noted that, in order to m ake the requisite finding for using the emergency exception in 21 U S C . § 952(a)(2)(A), it would be “ essential first to identify precisely what that need [for morphine sulfate] is, second to determ ine w hether failure to fulfill that need creates an emergency situation, and finally to examine w hether dom estic supplies are adequate to meet the need as identified. . . ” Memorandum, supra note 4 , at 4. 578 II. Analysis of the Statute The question before us is one of statutory construction. The pertinent language is as follows: It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance in schedule I or II of subchapter I of this chapter, or any narcotic drug in schedule III, IV, or V of subchapter I of this chapter, except that— (1) such amounts of crude opium and coca leaves as the Attorney General finds to be necessary to provide for medical, scientific, or other legitimate purposes, and (2) such amounts of any controlled substance in schedule I or II or any narcotic drug in schedule III, IV, or V that the Attorney General finds to be necessary to provide for the medical, scientific, or other legitimate needs of the United States— (A) during an emergency in which domestic supplies of such substance or drug are found by the Attorney General to be inadequate, or (B) in any case in which the Attorney General finds that competition among domestic manufacturers of the con­ trolled substance is inadequate and will not be rendered adequate by the registration of additional manufacturers under section 823 of this title, may be so imported under such regulations as the Attorney General shall prescribe. No crude opium may be so imported for the purpose of manufacturing heroin or smoking opium.7 There is no question that morphine sulfate— a refined derivative, or salt, of opium— is a schedule II controlled substance within the meaning of § 952(a).8 It is not “ crude opium” for purposes of § 952(a)(1). Accordingly, its importation into the United States in present circumstances is barred unless one of the exceptions in § 952(a)(2) applies, or unless— and this is the issue about which you have sought our opinion— § 952(a) as a whole does not cover actions of the United States but rather is limited to actions by private, nongovernmental parties. On the one hand, it may be argued that the broad terms of § 952(a) should not be read to cover actions by the United States in light of the canon of construction 7 21 U.S C § 952(a) 8 See 21 U S C. § 812(c), 21 C.F.R. § 1308.12. Morphine is the pnncipal alkaloid, or organic base, of opium, which is the coagulated juice o f the opium poppy plant, papaver sommferum. Morphine in the form of a soluble salt— such as morphine sulfate— is used as an analgesic o r a sedative. See Webster’s Third New International Dictionary 1471 (1976); 15 Encyclopaedia Bntanmca 856 (1971) 579 identified at the outset of this opinion. This canon holds that, absent contrary indication in relevant legislative materials, a statute imposing burdens normally should not be read to impose those burdens on the government in derogation of its preexisting rights or privileges.9 Historically, this rule originated in the English doctrine that the Crown is presumed to be unaffected by acts of Parliament unless the acts are directed specifically at the C row n.10 Because in the United States sovereignty always has resided by theory and practice in the people, rather than in a monarch, transplan­ tation of the English rule to this country necessarily has led to its subtle transformation. The rule’s chief policy basis in American case law is the notion that Congress is presumed to have intended to preserve on behalf of the people the efficient functioning of government, and therefore a statute generally should not be read to impose new burdens on government without indications that this in fact was Congress’ intention." In the present context, this rule of construction could be used as a basis for arguing that § 952(a) was not intended to impose new burdens on the United States, for the provision does not clearly state that it was so intended. On the other hand, the foregoing canon of construction should not be viewed as an absolute guide to the construction of any statute. One commentator has stated that although the canon has been useful in a number of cases, “ [i]t is questionable . . . whether the rule still continues to command the same influence today.” 3 C. Sands, Sutherland Statutory Construction § 62.03 (4th ed. 1974). The “ rule” that the government normally is to be excluded from coverage of statutes imposing burdens is, in fact, subject to numerous exceptions. It is merely a guide to the most plausible construction of legislative intent when other indications of such intent are not present or dominant. The central inquiry when faced, as we are here, with possible application of the canon of construction is to determine whether there are other specific grounds on which to rest an interpretation of the statute that are more definite and ultimately more helpful than the canon of construction itself.12 In present circumstance, one of the most striking features is the existence of a longstanding, consistent, and specific administrative construction of the statute in question on the very point at issue here. In conversations with officials of the Drug Enforcement Administration— which is responsible for administering the statute of which § 952(a) is a central part— we have learned that for years the agency has interpreted § 952(a) as applying not only to importations of con­ 9 See U nited States v United Mine Workers o f America, 330 U S 258. 272-73 (1947), United States v Herron, 87 U .S. (20 Wall.) 251 (1874). United States v. Knight, 39 U S. (14 Pet.) 301 (1840) 10 See U nited States v. California, 297 U .S . 175, 186 (1936); see also 3 C Sands, Sutherland Statutory Construction § 62 01 (4th ed 1974). 11 See Hancock v 7ram . 4 2 6 U S . 167, 169 (1976), Letter Minerals, Inc v. U nitedStates, 352U S. 220, 224-25 (1957); U nitedStates v Wittek. 337 U S 346 (1949); Guaranty Trust Co v. U nitedStates. 304 U.S. 126, 132-33 (1938). 12 As the Supreme Court has noted, the canon of construction is merely “ an aid to consistent construction of statutes of the enacting sovereign when their purpose is in doubt, but it does not require that the aim of a statute fairly fo be inferred be disregarded because not explicitly stated.” United States v California, 297 U.S 175, 186 (1936). See United States v Wittek. 337 U S 346, 3 58-59 (1949); 3 C Sands, Sutherland Statutory Construction § 62 02 (4th ed. 1974) 580 trolled substances by private parties, but also to importations of such substances by the government itself, specifically including federal agencies. Thus, in the course of the routine administration of this statute, the DEA and its predecessor agency13 have confronted precisely the issue that has been put to us. The federal agencies involved have been required to meet all statutory and regulatory requirements pertaining to importations of controlled substances.14 For instance, we have been told that when an agency, such as the National Institute on Drug Abuse of the Department of Health and Human Services, has sought to import quantities of controlled substances for laboratory tests, the agency has been required by the DEA to comply with applicable registration and permit requirements. These requirements, authorized by statute, see 21 U.S.C. §§ 957 & 958, are set forth in the DEA’s regulations, see 21 C.F.R. §§ 1311 & 1312 (1981). Among other things, these regulations require importers of con­ trolled substances to obtain an annual registration, unless specifically exempted from the requirement. See 21 C.F.R. § 1311.21. Among those who are exempt from this requirement are officials of the United States Army, Navy, Marine Corps, Air Force, Coast Guard, or Public Health Service, see 21 C.F.R. § 1311.24, and officials of the United States Customs Service, the Food and Drug Administration, and “ any other Federal officer who is lawfully engaged in the enforcement of any Federal law relating to controlled substances. . . .” See 21 C.F.R. § 1311.25. By exempting these federal officials, the DEA has plainly indicated its understanding that otherwise, the requirements would have applied to the officials— as they do to officials not exempted. Furthermore, before any person may import a controlled substance, a permit must be issued. See 21 C.F.R. § 1312.11. Specific grounds for the issuance of such permits are set forth in the DEA’s regulations. See 21 C.F.R. § 1312.13. These permit requirements, the DEA has told us, also have regularly been applied to federal agencies seeking to impiort quantities of controlled substances for official purposes. The existence of such a consistent agency interpretation of its own authorizing legislation is viewed by courts as being of substantial importance. The Supreme Court has underscored that “ [w]hen faced with a problem of statutory con­ struction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration.” Udall v. Tollman, 380 U.S. 1, 16 (1965). The reason for this deference is that agencies have consider­ able familiarity with the nuances of their authorizing legislation and its applica­ tion in practice, and may generally be presumed to be expert in its construction. See generally Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969); Zemel v. Rusk, 381 U.S. 1, 11-12 (1965). Of course, courts remain ultimate arbiters of the law in contested cases. S ee, e .g ., V olksw agenw erk Aktiengesellschaft v. FMC, 390 U.S. 261, 272 (1968). However, courts give 13 The Drug Enforcement Administration was created by a reorganization plan in 1973 The description in text of DEA’s interpretation of § 952(a), enacted in 1970, also applies, we are told, to its predecessor, the Bureau of Narcotics and Dangerous Drugs 14 Our discussion of the D EA’s interpretation of § 952(a) necessarily relies on factual representations made to us by DEA officials 581 significant weight to a plain and longstanding administrative construction. The Supreme Court has explained that such a construction has the power “ to per­ suade,” if not “ control,” judicial analysis: We consider that the rulings, interpretations and opinions of [agencies], while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control. G eneral Electric Co. v. Gilbert, 429 U.S. 125, 141-2 (1976), quoting Skidmore v. Swift & C o., 323 U .S. 134, 140 (1944). In this case, the DEA’s understanding of the coverage of federal agencies by § 952(a) is well-established and consistent. Moreover, it would appear to be the product of informed judgment. Certainly, the DEA has been confronted repeat­ edly with situations in which it has had to determine how to treat federal agencies under § 952(a). Each time, we are told, it has reached the view that such agencies are subject, as are private parties, to applicable statutory and regulatory require­ ments. Furthermore, this interpretation, we understand, dates back at least to the time of the passage of § 952(a) in 1970, if not to earlier years when § 952(a)’s immediate predecessor (which was similar in nature) was in effect. In such circumstances, courts would pay even greater attention to the agency’s view. See, e .g ., SEC v. Sloan, 436U .S. 103, 120 (1978); E. I .D uPont de Nemours & Co. v. Train, 430 U.S. 112, 134—35 (1977); Union Electric Co. v. EPA, 427 U.S. 246, 256 (1976); Train v. Natural Resources Defense Council, 421 U.S. 60, 87 (1975); H ercules, Inc. v. EPA, 598 F.2d 91, 101 (D.C. Cir. 1978). Our own review of the statute’s legislative history tends, at a general level, to confirm the D EA ’s understanding of § 952(a)’s coverage. First, there are un­ mistakable indications that Congress intended the importation restriction to operate as a critical element in the statute’s scheme of controlling the importation of controlled substances.15 Furthermore, there are indications that any importa­ tion of controlled substances by a ll importers— whether or not a private importer that might be suspected of seeking to engage in illicit conduct— was intended to be covered. Thus, the major committee report on'the bill containing § 952(a) that was enacted in 1970 stated that the importation restriction refers “ to any article, any bringing in or introduction of such article into any area. . . .’’ H.R. Rep. No. 1444 (Pt. 1), 91st C ong., 2d Sess. 74 (1970) (emphasis added). In floor debate on the predecessor provision, the Narcotic Drugs Import and Export Act of 1922, Pub. L. No. 227, 67th Cong., 2d Sess., 42 Stat. 596, 21 U.S.C. § 173 (1964), the provision’s proponent stated that the predecessor importation restriction was 15 See H .R . Rep. No. 1444 (Pt. 1). 91st C ong., 2d Sess. 71-80 (1970). See also 116 Cong. Rec. 33317(1970). 582 an effort to use “ best efforts to control or cause to be controlled all those who import or export morphine, cocaine, or their respective salts.” 62 Cong. Rec. 6334 (1922) (emphasis added). These references in the legislative history to “ any importation” and “ all those who import” morphine or a salt of morphine suggest that Congress intended a broad coverage of the importation restriction. It is consistent with this intent to construe § 952(a), as the DEA has done, to cover actions of \jthe United States. Furthermore, there is some indication in the legislative history that one purpose served by the importation restriction is to prevent drug manufacturers in foreign countries from having access to the domestic American market in finished narcotic drugs. Thus, the relevant Committee report on the 1922 predecessor to § 952(a) stated that the restriction on the importation of finished narcotic drugs (as opposed to raw opium and coca leaves) “ will also . . .close the legitimate domestic market to foreign manufacturers.” H.R. Rep. No. 852, 67th Cong., 2d Sess. 7-8 (1922).16 Although the precise reasons for closing the domestic market to foreign manufacturers may not be entirely clear, they may reasonably be understood to include the desire to protect the American drug industry from foreign competition— as well as simply to shut off importation in order to prevent illicit trafficking in drugs. Certainly, domestic drug industry representatives involved in manufacturing finished narcotics have so understood the intent of § 952(a). See, e .g ., Controlled Dangerous Substances, Narcotics and Drug Control Laws: Hearings Before the House Committee on Ways and Means, 91st Cong., 2d Sess. 458-62 (1970) (testimony of Stephen Ailes on behalf of three American firms licensed in 1970 to import opium for processing for legitimate medical purposes). Moreover, we understand from our con­ versations with DEA officials that the DEA itself is of the view that one— although not the major—statutory aim served by § 952(a) is the protection of the domestic American drug industry from foreign competition. We would not want to rest an interpretation of § 952(a) entirely on the few indications of a “ protectionist” purpose that we have found in the legislative 16 The full passage in the course o f which this comment occurs is the following: The existing law in section 1 of the narcotic drugs import and export act [of 1909, as amended by the Harrison Act of 1914]. . . prohibits the importation of smoking opium, but permits the importation for medical purposes of other opium products . . The United States manufactures more than a sufficient amount o f narcotic drugs for domestic medical and scientific uses. The committee therefore believes it desirable to restrict our importation to raw opium and coca leaves, and to admit these only in amounts found by the Secretary of State, the Secretary of the Treasury, and the Secretary of Commerce to be sufficient lo provide our manufacturers with enough of the raw products for the domestic and scientific uses of this country, and for foreign exportation as required by the opium convention for medical and scientific uses of legitimate foreign consumers. This restriction will also aid in enforcing our export restrictions. . . . It will also aid in preventing evasions of the Harrison Act, by means of the unlawful importation into this country of narcotic drugs previously imported by us and sent into the export trade, and will close the legitimate domestic market to foreign manufacturers. By proper action in authorizing the importation of the raw products, it is believed that the three Secretaries can curb any tendency to increase the pnce of the manufactured narcotic drugs which might otherwise result from the prohibition of their importation, and by such action also take account of increased domestic consumption beyond the ordinary needs for medical and scientific uses, due either to diversion of drugs into illegitimate domestic channels .. or to epidemic or war conditions. (Emphasis added.) H.R Rep. No. 852, 67th Cong., 2d Sess. 7-8 (1922). 583 history. However, we must acknowledge that, however ambiguous they may appear to be, such indications do exist, and they directly support the notion that § 952(a) should be interpreted to apply to the United States, as well as to private parties.17 In sum, in view of the longstanding and consistent agency interpretation of § 952(a) and its predecessor as applying to importations of controlled substances by private parties and federal agencies, in view of suggestions in the legislative history that Congress intended a broad construction of § 952(a) in order to fulfill its purposes, and in view of the absence of any indication in the legislative history to the contrary, we conclude that § 952(a) should be understood to apply to importations by the United States. It thus applies to the proposed importation of morphine sulfate from Turkey that is presently the subject of negotiations involv­ ing the General Services Administration. T heodore B. O lson Assistant Attorney General Office c f Legal Counsel 17 An argument can be made that Congress did not intend to cover the United States in § 952(a), for it provided for a means of enforcing § 952(a), namely, by possible criminal penalty, see 21 U .S C § 960. that is not appropriately applied against the United States. The problem with this argument is that it ignores that the criminal enforcement provisions are not exclusive 21 U .S C § 964 states that any penalty imposed for violation of the import and export restrictions ' ‘shall be in addition to, and not in lieu of. any civil or administrative penalty or sanction authonzed by law.*’ It is not inconceivable that an aggrieved private party may be able to achieve judicial review of an importation of a controlled substance by the United States, and seek in a judicial proceeding a civil remedy predicated on an alleged violation of § 952(a). Accordingly, we cannot give definitive weight to the existence of criminal enforcement provisions in the statute To us, the central question is what Congress’ intent in imposing the importation restriction itself appears to have been That question is best resolved by referring to § 952(a) s own legislative history and. in this case, the longstanding agency construction of the provision. 584

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United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking T h e A irc ra ft S a b o ta g e A c t o f 1 9 8 4 applies to th e p o lic e an d m ilita ry p e rs o n n e l o f fo re ig n g o v e rn m e n ts. In p a rtic u la r, th e A c t a p p lie s to the use o f d e a d ly fo rce by s u c h fo re ig n g o v e rn m e n ta l a cto rs a g a in st c iv il a irc ra ft in flig h t th a t a re su sp ected o f tra n s p o rtin g ille g a l d ru g s T h e re is a c c o rd in g ly a s u b ­ s ta n tia l ris k th a t U n ite d S ta te s G o v e rn m e n t o ffic e rs an d e m p lo y e e s w h o p ro v id e flig h t tra c k in g in ­ fo rm a tio n o r c e r ta in o th e r form s o f a s s is ta n c e to th e a e ria l in te rd ic tio n p ro g ra m s o f foreign g o v e rn m e n ts th a t h a v e d e s tro y e d such a irc ra ft, o r th at h a v e a n n o u n c e d an in te n t to d o so, w o u ld be a id in g a n d a b e ttin g c o n d u c t th a t v iolated th e A ct. July 14, 1994 M e m o r a n d u m O p in io n f o r t h e D e p u t y A t t o r n e y G e n e r a l * This m em orandum summarizes our earlier advice concerning whether and in what circum stances United States G overnm ent (“USG”) officers and employees may law fully provide flight tracking information and other forms of technical as­ sistance to the Republics o f Colombia and Peru. The information and other assis­ tance at issue have been provided to the aerial interdiction programs o f those two countries for the purpose o f enabling them to locate and intercept aircraft suspected of engaging in illegal drug trafficking. Concern over the in-flight destruction of civil aircraft as a com ponent of the counternarcotics program s of foreign governm ents is not novel. In 1990, soon after the inception of the USG assistance program, the United States made an oral dem arche to the Colom bian government informing that governm ent that Colom­ bian use o f USG intelligence information to effect shootdowns could result in the suspension o f that assistance. M ore recently, we understand that the government o f Peru has used weapons against aircraft suspected of transporting drugs and that the government of Colom­ bia has announced its intention to destroy in-flight civil aircraft suspected of involvem ent in drug trafficking. The possibility that these governments might use the inform ation or other assistance furnished by the United States to shoot down civil aircraft raises the question o f the extent to which the United States and its governm ental personnel may lawfully continue to provide assistance to such program s. On M ay 1, 1994, in light of these concerns, the Departm ent of Defense sus­ pended a variety o f assistance program s. Thereafter, in a draft opinion, an inter­ agency working group concluded that the United States aid was probably unlawful. E d ito rs N ote: In response to this o p in io n , C ongress en acted Pub. L. No 103-337, § 1012, 108 Stat 2663, 2 8 3 7 (1 9 9 4 ) (co d ified at 22 U S C § 2 2 9 1 -4 (1994)). 148 U nited States A ssistance to Countries that S hoot Down C ivil A ircraft Involved in D rug T rafficking The group included lawyers from the Criminal Division, the Departments of State, Defense (including the Joint Chiefs of Staff), the Treasury, and Transportation (including the Coast Guard), and the Federal Aviation Administration. On M ay 26, 1994, this Department advised all relevant agencies that assistance programs directly and materially supportive of shootdowns should be suspended pending the completion of a thorough review of the legal questions. After careful consideration o f the text, structure and history o f the Aircraft Sabotage Act of 1984, the most relevant part o f which is codified at 18 U.S.C. § 32(b)(2), we have concluded that this statute applies to governmental actors, in­ cluding the police and military personnel of foreign countries such as Colom bia and Peru. Accordingly, there is a substantial risk that USG personnel who furnish assistance to the aerial interdiction programs of those countries could be aiding and abetting criminal violations of the Aircraft Sabotage Act. See 18 U.S.C. § 2(a) (aiding and abetting statute). We caution, however, that these conclusions are premised on our close analysis of § 32(b)(2) and should not be taken to mean that other domestic criminal statutes will necessarily apply to USG personnel acting officially. I. International law forms an indispensable backdrop for understanding § 32(b)(2). A primary source of international law regarding international civil aviation is the Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, T.I.A.S. No. 1591, 15 U.N.T.S. 295 (“the Chicago Convention”). The Chicago Convention is administered by the International Civil Aviation Organization (“ICAO”). Article 3(d) of the Chicago Convention declares that “[t]he contracting States undertake, when issuing regulations for their state aircraft, that they will have due regard for the safety of navigation of civil aircraft.” Parties have interpreted the due regard standard quite strictly, and have argued that this provision proscribes the use of weapons by states against civil aircraft in flight.1 For example, the United States invoked this provision during the international contro­ versy over the Korean Air Lines Flight 007 (“KAL 007”) incident.2 W hile ac­ knowledging that Article 1 of the Chicago Convention recognized the customary rule that “every State has complete and exclusive sovereignty over the airspace above its territory,” the United States argued that the Soviet Union had violated both Article 3(d) and customary international legal norms in shooting down KAL 1 A rticle 89 o f the C hicago C onvention relieves a state party from its obligations under the C onvention if il declares a national em ergency and certifies that declaration to ICA O . T o date, neither C olom bia nor Peru has made such a certification The C hicago C onvention contains no explicit exem ption perm itting the in ­ flight destruction o f aircraft suspected o f carrying contraband o r o f otherw ise being involved in the drug trade “ On Septem ber 1, 1983, a Soviet m ilitary aircraft shot dow n a civil aircraft, KAL 007, lhat had overflow n Soviet territory while on a scheduled international flight to Seoul 149 Opinions o f th e Office o f L egal C ounsel 007. The A dm inistrator of the Federal A viation Authority stated to the ICAO Council that: The ICAO countries have agreed that they will “have due regard for the safety of navigation of civil aircraft” when issuing regulations for their m ilitary aircraft. It is self-evident that intercepts of civil aircraft by military aircraft must be governed by this paramount concern. The international community has rejected deadly assault on a civil airliner by a m ilitary aircraft in time of peace as totally unaccept­ able. It violates not only the basic principles set forth in the [Chicago] convention but also the fundamental norms of interna­ tional law . . . .[31 In the wake of KAL 007, the ICAO Assembly unanimously adopted an amend­ ment to the Chicago Convention to make more explicit the prohibitions o f Article 3(d).4 This am endm ent, Article 3 b is, reads in part as follows: (a) The contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft m ust not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligations o f States set forth in the Charter of the United N ations.5 A rticle 3 b is should be understood to preclude states from shooting down civil aircraft suspected o f drug trafficking, and the only recognized exception to this rule is self-defense from attack.6 We understand that the United States has not yet rati­ fied Article 3 bis. There is, however, support for the view that the principle it an­ nounced is declaratory of customary international law.7 3 FAA A d m in istra to r H e lm s' Statem ent, IC A O Council, S e p t 15. 1983 M ontreal, D e p ’t St B u l l , Oct. 1983, at 17, 18 W e further note that the IC A O Council R esolution o f S eptem ber 16, 1983, condem ned the sh ootd o w n o f K A L 007 and *‘[r]eaffirm [ed] th e principle th at States, w hen intercepting civil aircraft, should not use w eap o n s ag ain st th em ” Id. at 20. 4 Se e Jeffrey D. L aveson, K o rea n Airline F lig h t 007. S ta le m a te in International A viation Law — A P ro * p o sa l f o r E n fo rcem en t, 22 San D iego L Rev. 859, 882-84 (1985) 5 U SG re p resen tativ es p ro p o sed a reference to the U nited N ations C harter (“C harter1') to reflect the view that an in tern atio n al law p ro h ib itio n on the u se o f w eapons against civil aircraft in flight w ould not restrict a s ta te ’s n g h t o f self-d efen se as provided for in A rticle 51 o f the C harter. 6 S ee Steven B. S lokdyk, C om m ent, A irb o rn e D rug Trafficking D eterrence Can A Shootdow n P olicy F ly ', 38 U C L A L. Rev. 1287, 1306(1991) 7 See, e.g ., A ndreas F. L ow enfeld, Looking Back a n d Looking A head, 83 Am J In t’l L. 336, 341 & n 17 (1989); Som p o n g Su ch aritk u l, Procedure f o r the P rotection o f C ivil A ircra ft in Flight, 16 Loy L A In t’l & 150 U nited States A ssistance to Countries that S hoot Down C ivil A ircraft Involved in D rug Trafficking In addition to the Chicago Convention, the United States has ratified the Con­ vention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Sabotage), done Sept. 23, 1971, 24 U.S.T. 567, 10 I.L.M . 1151 (1971) (“the Montreal Convention”). Article 1 o f the latter Convention specifies certain sub­ stantive offenses against civil aircraft: in particular, Article 1,1 (b) states that “ [a]ny person commits an offence if he unlawfully and intentionally . . . destroys an aircraft in service or causes damage to such an aircraft which renders it incapable o f flight or which is likely to endanger its safety in flight.” Article 1,2 makes it an offense to attempt to commit a previously enumerated offense, or to be an accom ­ plice of an offender.8 Further, Article 10 requires states “in accordance with inter­ national and national law,” to “endeavour to take all practicable measures for the purpose of preventing” substantive offenses. The Montreal Convention imposes on states certain duties with respect to of­ fenders or alleged offenders. Article 3 declares that the contracting states “undertaken to make the offences mentioned in Article 1 punishable by severe penalties.” This obligation is specified by requiring states to take measures to es­ tablish jurisdiction over certain offenses (Article 5), to take custody of alleged of­ fenders within their territory (Article 6), and either to extradite the alleged offender or to submit the case to their com petent authorities for prosecution (Article 7). Further, states have the obligation to report the circumstances of an offense, and the results of their extradition or prosecution proceedings, to the ICAO (Article 13). Nearly all nations with a significant involvement in air traffic are parties to the Montreal Convention, and have thus incurred the responsibility to execute it. The United States implemented the Convention in 1984 by enacting the Aircraft Sabo­ tage Act, Pub. L. No. 98-473, §§ 2011-2015, 98 Stat. 1837, 2187-90(1984). Con­ gress specifically stated that legislation’s purpose was “to implement fully the [Montreal] Convention . . . and to expand the protection accorded to aircraft and related facilities.” Id. § 2012(3); see a lso S. Rep. No. 98-619 (1984), rep rin ted in 1984 U.S.C.C.A.N. 3682.9 The criminal prohibition now codified at 18 U.S.C. § 32(b)(2) was enacted as part of that legislation. C om p. L J 5 1 3 ,5 1 9 -2 0 (1994) But see D J H am s, C ases a n d M a terials on In ternational Law 221 (4th ed 1991) 8 In general, the furnishing o f inform ation o r assistance to another nation in circum stances that clearly indicate a sen o u s risk that the inform ation or assistance will be used by lhat nation to com m it a w rongful a ct may itself be a w rongful act under international law. C f A rticle 27 o f the International Law C om m issio n 's D raft C onvention on State R esponsibility, w hich provides that “ [a]id or assistance by a State to another State, if it is established that it is rendered for the co m m ission o f an internationally w rongful act earn ed out by the latter, itself constitutes an internationally w rongful act, even if, taken alone, such aid or assistance w ould not constitute the b reach o f an international oblig ation ” R eport o f the Intern a tio n a l L aw C om m ission on the W ork o f its T h irty-S eco n d S essio n , [1980] 2 Y B In t'l L C om m ’n 33, U .N . Doc. A /35/10. 9 It is undoubtedly w ithin C o n g re ss's pow er to provide that attacks on civil aircraft should be crim inal acts under dom estic law, even if they w ere co m m itted e x tra te m to n a lly and even absent any special c o n n ec ­ tion betw een this country and the offense An attack on civil aircraft can be considered a crim e o f “ universal c o n c e rn ' to the com m unity o f nations S ee U nited S ta te s v Yum s, 924 F 2d 1086, 1091 (D .C . C ir. 1991), 151 Opinions o f th e Office o f L egal C ounsel II. W e turn to the question of criminal liability under domestic law. At least two criminal statutes are relevant to this inquiry. The first is 18 U.S.C. § 32(b)(2), which im plem ents Article 1,1 (b) o f the Montreal Convention, and prohibits the destruction o f civil aircraft. The second is 18 U.S.C. § 2(a), which codifies the principle o f aiding and abetting liability.10 A. 18 U.S.C. § 32(b)(2) was enacted in 1984, one year after the destruction of KAL 007. The statute makes it a crime “willfully” to “destroy[] a civil aircraft registered in a country other than the United States while such aircraft is in service or causef] dam age to such an aircraft which renders that aircraft incapable of flight or which is likely to endanger that aircraft’s safety in flight.”11 The text, structure and legislative history o f the statute establish that it applies to the actions of the Peruvian and Colum bian officials at issue here. The term “civil aircraft,” as used in § 32(b)(2), is defined broadly to include “any aircraft other than . . . an aircraft which is owned and operated by a govern­ mental entity for other than commercial purposes or which is exclusively leased by such governm ental entity for not less than 90 continuous days.” 49 U.S.C. app. § 1301(17), (36) (definitions section of Federal Aviation Act of 1958). See 18 U.S.C. § 31 (in chapter including § 32(b)(2), “civil aircraft” has meaning ascribed to term in Federal Aviation Act). The qualifying language providing that the sec­ tion applies to “civil aircraft registered in a country oth er than the U nited States,” 18 U.S.C. § 32(b)(2) (emphasis added), has an expansive rather than restrictive purpose — to extend United States criminal jurisdiction over persons destroying see g e n era lly K enneth C. R andall, U niversal Ju risd ictio n U nder In ternational Law , 66 Tex. L. Rev 785 (1988) 10 O th e r c rim in a l statu tes m ay also be relev an t F o r exam ple, 49 U .S.C app § 1472(0(1) m akes it a crim e to co m m it, o r to attem pt to commit, a irc ra ft piracy ‘‘A ircraft piracy'* is defined to *‘m ean[] any seizure or exercise o f co n tro l, by force o r violence o r th reat o f force o r violence, or by any other form of intim idation, and w ith w ro n g fu l intent, o f an aircraft w ith in the special aircraft jurisd ictio n o f the U nited S tates." Id. § 1472(i)(2). T h e “special airc ra ft ju risd ictio n o f the U nited States’” includes “civil aircraft o f the U nited S ta te s’" w hile su ch aircraft is in flight Id. § 1301(38)(a) W e do not co n sid er in this m em orandum w hether the pro h ib itio n on aircraft piracy, o r any c rim in a l statutes o th e r than § 32(b) and the aiding and abetting and co n sp iracy statu tes, w ould be applicable to th e U SG activities in question here 11 S ectio n 3 2 (b ) is a felony statute, and p u rsu a n t to 18 U S.C § 34, persons w ho violate § 32 are subject to “ the d eath p enalty o r to im prisonm ent fo r life ” if th e crim e “ resulted in the death o f any person.” H ow ­ ever, § 34 p red ates the Suprem e Court d e cisio n in Furm an v G eorgia, 408 U S 238 (1972), and m ay not be ap p licab le c o n siste n t w ith that decision In a p ending case, U nited States v C h eely , 21 F.3d 914 (9th C ir. 1994), a d iv id ed panel o f the Ninth C irc u it issued an opinion on A pril I I , 1994, concluding that the d e ath p en alty pro v id ed fo r by 18 U S C. § 844(d) (w h ich incorporates § 34 by reference) is unconstitu­ tional. H ow ever, the c o u rt has, su a spoiite, re q u e ste d the parties to address the issue w hether the case should be reheard en b anc, and it rem ains uncertain w h eth er § 34 can be applied constitutionally Pending cn m e le gislatio n w o u ld resolve this issue for fu tu re violations by providing a constitutional death penalty provision. 152 U nited States A ssistance to C ountries that Shoot Down Civil A ircra ft Involved in D rug Trafficking civil aircraft ‘“ even if a U.S. aircraft was not involved and the act was not within this country.’” U nited States v. Yunis, 681 F. Supp. 896, 906 (D.D.C. 1988) (citation om itted).12 Section 32(b)(2) was intended to apply to governmental actors (here, the m ili­ tary and police forces of Colombia and Peru) as well as to private persons and groups. W hen Congress adopted § 32(b)(2) in 1984, it had been a crime for nearly thirty years under § 32(a)(1) for anyone willfully to “set[] fire to, damage[], destroy[], disable[], or wreck[] any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign air comm erce.” 18 U.S.C. § 32(a)(1).13 This Departm ent has sought, under § 32(a), to prosecute state actors whom it believes to have sponsored terrorist acts (specifically, the bombing of Pan American Flight 103 at the behest o f Libya). Because of the obvious linguistic and structural sim ilarities between §§ 32(a)(1) and 32(b)(2), we read those sections to have the same cover­ age in this regard, i.e., to apply to governmental and non-governmental actors alike.14 12 It m ight be argued that § 3 2 (b )(2 )'s reference to aircraft “ registered in a country other than the U nited S tates” is restrictive in m eaning, i e , that the section does not protect u n registered aircraft M oreover, we are inform ed that the registration num bers o f aircraft engaged in drug trafficking over C olom bia and Peru have in som e cases been painted over or otherw ise obscured It is suggested that unregistered aircraft, or aircraft w hose registration is concealed, may be made targets under a shootdow n policy w ithout violating the statute T here are several flaw s in this suggestion. (1) C ongress stated lhat its purpose in enacting the A ir­ c ra ft Sabotage Act was “ to im plem ent fully" the M ontreal C onvention See 18 U .S.C § 31 noie. A rticle 1,1 (b) o f ihe C onvention (from which 18 U .S.C § 32(b)(2) is derived) prohibits the d estruction o f civil aircraft as such, w ithout regard to registration B ecause § 32(a)( I) had already forbidden the w illful destruc­ tion o f “ any aircraft in the special aircraft ju risd ictio n o f the U nited States or any civil aircraft used, operated, o r em ployed in interstate, overseas, or foreign air com m erce," C ongress evidently sought to d ischarge this c o u n try ’s rem aining o bligations under ihe M ontreal C onvention by affording the sam e protection to all other civil aircraft A ccordingly, the protections provided by § 32(b)(2) should not be deem ed to hinge on w hether a foreign civil aircraft is in faci registered, had C ongress done no m ore than that, the U nited S tates w ould have fallen short o f fulfilling its treaty obligations, although C ongress intended lhat it should fulfill them. S ection 3 2 (b )(2 )‘s reference to “civil aircraft registered in a country other than the U nited S tates” “ m ust be taken lo refer to the class w iih w hich the statute undertakes lo deal ’’ U nited States v Jin Fuey M ay, 241 U S 394, 402 (1916) (H olm es, J.) (construing scope o f registration requirem ent in crim inal statu te) See a lso U nited S ta tes v. R o d g ers, 4 6 6 U S. 4 7 5 , 478-82 (1984), C o n tin ental Training S ervices Inc. v C avazos, 893 F 2 d 877, 883 (7th C ir 1990) (2) W e are advised by the Federal A viation A uthority that the co n ceal­ m ent or obscuring o f a registration num ber does not legally “d eregister” an airplane, and that only an official act by the registering governm ent can achieve that effect A ccordingly, suspected drug traffickers w hose registration is concealed cannot be deem ed to be unregistered (3) T here is no logical connection betw een the class o f aircraft engaged in drug sm uggling and the class o f unregistered aircraft N or do we kn o w of any em pirical evidence that the tw o classes significantly overlap Further, drug traffickers may ow n, lease or steal planes; and even if it w ere their practice not to register the planes they ow n, the ow ners o f the planes they have leased or stolen m ight norm ally do so. (4) W e are also unaw are o f any reliable m eans by w hich foreign law enforcers w ho have intercepted a plane could determ ine w hile it was in flight w hether it was registered or not Indeed, the very act o f d estroying a plane m ight prevent investigators from determ ining its registration (if any) Thus, it w ould be d ifficult, if not im possible, to m onitor a “shoot dow n” policy so as to ensure lhat the p articipants in it avoided crim inal liability by targeting only unregistered planes n Section 3 2 (a) was adopted m 1956, se e Pub. L No. 84-709, 70 Stat 5 3 8 ,5 3 9 (1956) 14 W hile § 32(a) does not have the broad extraterritorial scope of § 32(b)(2), it does apply to acts against U nited S tates-registered aircraft abroad, and thus w ould apply w ith respect to any such aircraft shot dow n by C olom bian or P eruvian authorities. 153 Opinions o f th e O ffice o f L egal C ounsel The legislative history o f the A ircraft Sabotage Act confirms that Congress in­ tended § 32(b)(2) to reach governmental actions. The original bill was introduced as part o f a package o f four related measures proposed by the Administration and designed to enable the United States to com bat international terrorism, including state-sponsored actions, more effectively. In subm itting this legislative package to Congress, the President explained that it was largely concerned with a very w orrisom e and alarming new kind o f terrorism . . .: the di­ rect use of instruments of terror by fo reig n states. This “state ter­ rorism ” . . . accounts for the great majority o f terrorist murders and assassinations. Also disturbing is state-provided training, financing, and logistical support to terrorists and terrorist groups. M essage to the C ongress Transmitting Proposed Legislation To Combat Interna­ tional Terrorism , Pub. P apers o f R o n a ld Reagan 575 (1984) (emphasis added). Further, in testim ony given at a Senate Judiciary Committee hearing on these bills on June 5, 1984, W ayne R. Gilbert, Deputy A ssistant Director o f the Criminal Investigative Division o f the Federal Bureau of Investigation, underscored that: Recent years reflect increasing concern both in the United States and in foreign nations over the use o f terrorism b y fo reig n g o vern ­ m ents or groups. W e have seen an increased propensity on the part o f terrorist entities to plan and carry out terrorist acts worldwide. L eg isla tive In itiatives to Curb D om estic a n d International Terrorism : H earings B efore the Subcomm. on Security a n d Terrorism o f the Senate Comm, on the Judi­ ciary, 98th Cong. 44 (1984) (“H earings”) (statem ent o f Wayne R. Gilbert) (em phasis added). In written testimony, the Departm ent of Justice also explained that “ [t]hese four bills address some of the risks caused by the growing worldwide terrorism problem , especially state-su pported terro rism .” Id. at 46-47 (prepared statem ent o f V ictoria Toensing, Deputy A ssistant Attorney General, Criminal Divi­ sion) (em phasis added).15 The legislative history of § 32(b)(2) thus shows that the statute was intended to reach shootdowns by officials or agents of governments as well as by private individuals and organizations. B ecause § 32(b)(2) applies generally to foreign governments, it must apply to shootdow ns of foreign-registered civil aircraft by law enforcem ent officers or military personnel of the governments of Colom bia and Peru. The statute contains no exem ption for shootdowns in pursuance of foreign law enforcement activity; nor 15 In a co llo q u y b etw een S en ato r Denton a n d M r G ilbert on the bill addressed to aircraft sabotage, S ena­ tor D enton co m m en ted that ‘‘we should not ig n o re the fact that in Libya a G eneral W olf, w hose full nam e is M arcus W olf, set up and acts as the chief o f L ibyan In tellig en ce.” Id. at 81 In context, Senator D enton's co m m en t seem s to reflect his understanding th a t the legislation w ould reach state-sponsored attacks on civil aircraft o r air p assen g ers and the officials resp o n sib le for such attacks 154 U nited S ta tes A ssistance to C ountries that Shoot Down C ivil A ircraft Involved in D rug Trafficking does it exempt shootdowns of aircraft suspected of carrying contraband.16 USG personnel who aid and abet violations o f § 32(b)(2) by the Colombian or Peruvian governments are thus themselves exposed to criminal liability by virtue of 18 U.S.C. § 2(a), see Part II B below .17 Our conclusion that § 32(b)(2) applies to governmental action should not be un­ derstood to mean that other domestic criminal statutes apply to USG personnel acting officially. Our O ffice’s precedents establish the need for careful exam ina­ tion of each individual statute. For example, we have opined that USG officials acting within the course and scope of their duties were not subject to section 5 of the Neutrality Act, 18 U.S.C. § 960. See A pplication o f N eutrality A ct to O fficial G overnm ent A ctivities, 8 Op. O.L.C. 58 (1984) (“Neutrality Act O pinion”). In general terms, lhat statute forbids the planning of, provision for, or participation in “any military or naval expedition or enterprise to be carried on from [the United States] against the territory or dominion of any foreign prince or state . . . with whom the United States is at peace,” 18 U.S.C. § 960; it does not explicitly exempt USG-sponsored activity. Our conclusion with respect to the Neutrality Act was based upon an examination of the legislative history of the Act, its practical con­ struction over two centuries by Presidents and Congresses, and the judicial deci18 sions interpreting it. B. The question we have been asked presupposes that USG personnel would not themselves directly carry out shootdowns of civil aircraft or encourage others to do 16 A lthough the legislative history em phasizes the dangers o f state-sponsored “terrorism ," w e do not understand the statute to exem pt state activity that co u ld arguably be characterized as “ law en fo rcem en t.” An action such as the Soviet U n io n 's shooting dow n o f K AL 007 could have been view ed as the enforcem ent o f national security laws regulating overflights in m ilitarily sensitive airspace, and thus distinguished from acts o f terrorist violence N evertheless, we think that § 32(b)(2) w ould apply to such attacks on civil avia­ tion 17 Section 32(b)(2) w ould also apply directly to USG personnel who them selves shot dow n foreignregistered civil aircraft, although on the facts as we understand them such conduct — as distinct from aiding and abetting foreign governm ental violations — is not at issue here. (For further discussion, see Part V below ) N othing in the legislative history o f § 32(b)(2) suggests that that statute w ould not apply to USG personnel in p roper cases as m uch as it does to foreign governm ental personnel ,x W e noted in the N eutrality Act O pinion that “the A c t's purpose was to enhance the P resid en t’s ability to im plem ent the foreign policy goals that have been developed by him , with appropriate p articipation by C ongress.” Id. at 72 A ccordingly, we found that “ it would indeed be anom alous’' to construe that A ct to lim it what USG officials acting under Presidential foreign policy directives could law fully do. Id By con­ trast, interpreting the A ircraft Sabotage A ct to reach such actors w ould not obstruct the statu te ’s purpose, w hich in any case was not to ensure the P resident’s ability to co nduct a unified and consistent foreign policy unim peded by private citizen s' interferences If anything, it w ould be contrary to the A ircraft Sabotage A c t's policy o f protecting international civil aviation from arm ed attacks to allow U SG officials, but not those o f any other country, to carry out such attacks Furtherm ore, although it is often true that “ ‘statutes w hich in general term s divest pre-existing rights o r privileges will not be applied to the sovereign w ithout express w ords to that effect, " id. (quoting U nited S ta tes v U n ited M ine W orkers, 330 U S 258, 272 (1947)), lhat m axim is “ ‘no hard and fast rule o f e x clu sio n ,’ and much depends on the context, the subject m atter, legislative history, and executive interpretation ” W ilson v O m aha Indian Tribe, 442 U .S. 653, 6 67 (1979) (quoting U nited Slates v C oo p er C orp , 3 1 2 U.S 600, 604-05 (1941)) 155 O pinions o f ihe Office o f L egal C ounsel so. Thus, the lawfulness o f USG activities and the potential liability o f USG per­ sonnel, under the circumstances outlined to us, depend on the proper application of the federal aider and abettor statute, 18 U.S.C. § 2(a). Section 2(a) does not itself define any crim inal offense, but rather provides that a person who is sufficiently associated with the criminal act of another is liable as a principal for that act. U nder the “classic interpretation” of this offense, “ [i)n order to aid and abet another to com m it a crime it is necessary that a defen­ dant in some sort associate him self with the venture, that he partici­ pate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.” U nited S tates v. M onroe, 990 F.2d 1370, 1373 (D.C. Cir. 1993) (quoting Nye <£ N issen v. U n ited S tates, 336 U.S. 613, 619 (1949)) (internal quotation marks and citations omitted). A iding and abetting liability for a crime can be usefully analyzed as consisting of three elements: “[1] knowledge of the illegal activity that is being aided and abetted, [2] a d esire to help the activity succeed, and [3] some a ct o f helping.” U nited S ta tes v. Z afiro, 945 F.2d 881, 887 (7th Cir. 1991) (enumeration added), a ff’d, 506 U.S. 534 (1993). All three elem ents must be present for aiding and abetting liability to attach. Id. 1. Knowledge of unlawful activity. A person must know about unlawful activity in order to be guilty o f aiding and abetting it: “a person cannot very well aid a venture he does not know about.” U nited S tates v. Allen, 10 F.3d 405, 415 (7th Cir. 1993). W ith respect to most or perhaps all countries to which the United States provides information or other assistance (other than Colombia and Peru), the absence o f this first elem ent of aiding and abetting eliminates entirely any possibil­ ity that the USG activities implicate 18 U.S.C. § 32(b). In the absence o f some serious reason to think otherwise, the United States is entitled to assume that the governm ents o f other nations will abide by their international commitments (such as the C hicago Convention) and custom ary international law. The fact that another governm ent theoretically could act otherwise cannot render USG aid activities le­ gally problem atic. Furthermore, the United States is under no general obligation to attem pt to determ ine whether another governm ent has an as-yet unrevealed inten­ tion to m isuse U SG assistance in a violation of § 32(b). See United States v. Giovannetti, 919 F.2d 1223, 1228 (7th Cir. 1990) (“A ider and abettor liability is not negligence liability.”). Therefore, if a foreign nation with no announced policy or known practice of unlawful shootdowns did in fact use USG aid in carrying out a shootdow n, that event would create no liability for the prior acts of USG personnel, 156 U nited States A ssistance to Countries that Shoot D own Civil A ircraft Involved in D rug Trafficking although it probably would require a reevaluation of USG assistance to that coun­ try and, depending on the circumstances, might require changes in that assistance. The same analysis, however, does not apply where the foreign state does have an announced policy or known practice o f carrying out shootdowns that violate § 32(b)(2) — precisely the situation with respect to Colombia and Peru. It is obvi­ ous that the United States has knowledge o f Colom bia’s publicly avowed policy. We believe that the United States is equally on notice about Peru’s de fa c to shoot­ down policy on the basis of the incidents that have occurred.19 It appears to be settled law that the knowledge elem ent o f aiding and abetting is satisfied where the alleged aider and abettor attempted to escape responsibility through a “deliberate effort to avoid guilty knowledge” of the primary actor’s intentions. G iovannetti, 919 F.2d at 1229. Someone who suspected the existence of illegal activity that his or her actions were furthering and who took steps to ensure that the suspicion was never confirmed, “far from showing that he was not an aider and abettor . . . would show that he was.” Id. On the facts as presented to us, we think that the knowl­ edge element is met with respect to Colom bia and Peru unless there is a change in the policies of those countries. 2. Desire to facilitate the unlawful activity. “[T]he aider and abettor m ust share the principal’s purpose” in order to be liable under 18 U.S.C. § 2. U nited S tates v. Fountain, 768 F.2d 790, 798 (7th Cir. 1985), cert, denied, 475 U.S. 1124 (1986). The contours of this element in the definition of aiding and abetting are not without ambiguity, see Zafiro, 945 F.2d at 887, although as a general matter mere knowl­ edge of the criminal activity (the existence of the first, knowledge element) does not in itself satisfy this second, purpose element. Many courts state the purpose element in terms of a “specific intent that [the aider and abettor’s] act or omission bring about the underlying crim e,” U nited States v. Zam brano, 776 F.2d 1091, 1097 (2d Cir. 1985), and the Suprem e C ourt’s most recent restatement of the aid­ ing and abetting statute’s reach suggests — if it does not quite endorse — this view. See C entral Bank o f D en ver v. F irst Interstate Bank, 511 U.S. 164, 181 (1994) (section 2(a) “decrees that those who provide knowing aid to persons com­ mitting federal crimes, with the intent to facilitate the crime, are themselves com­ mitting a crime”) (citing Nye & N issen, 336 U.S. at 619). At first glance it might appear that the United States could negate this element of aiding and abetting — and thus render USG assistance to Colombia and Peru lawful and USG personnel free of potential liability under 18 U.S.C. § 32(b)(2) — simply by announcing this G overnm ent’s opposition to any violations of § 32(b) by anyone. It might seem that after such an announcement it would not be possible to say that USG personnel acted with a desire to help unlawful shootdowns succeed. 19 For the purposes o f ihe aiding and abetting statute, it is im m aterial w hether an aider and ab etto r knew o f the unlaw ful activity because the prim ary actor told him or her, o r sim ply took actions that m ade obvious w hat was happening See g en era lly G iovannettt, 919 F 2d at 1226-29. 157 Opinions o f the O ffice o f Legal C ounsel However, “there is support for relaxing this requirement [of specific intent to bring about the crim inal act] when the crime is particularly grave: . . . ‘the seller of gaso­ line who knew the buyer was using his product to make M olotov cocktails for ter­ roristic u se’” would be guilty of aiding and abetting the buyer’s subsequent use of the “cocktails” in an act o f terrorism. F ountain , 768 F.2d at 798 (quoting with approval P eo p le v. L auria , 251 Cal. App. 2d 471, 481 (1967) (dictum )). Where a person provides assistance that he o r she knows will contribute directly and in an essential m anner to a serious criminal act, a court readily may infer a desire to fa­ cilitate that act. See Zaftro, 945 F.2d at 887 (if someone “knowingly provides es­ sential assistance, we can infer that [that person] does want [the primary actor] to succeed, for that is the natural consequence of his deliberate act”).20 W ere this a case in which a foreign government provided direct and material as­ sistance to an attack upon United States civil aircraft, both our Government and, we believe, the courts o f this country would view the offense against § 32(b)(2) to be o f a very serious nature, and would adopt an expansive view of the “desire to help the [unlawful] activity succeed” that constitutes this element of aiding and abetting. U nited S tates v. Carson, 9 F.3d 576, 586 (7th Cir. 1993), cert, denied, 513 U.S. 844 (1994). As we understand the facts, USG assistance is critical to the ability o f C olom bia and Peru to effect shootdowns. USG personnel have been fully engaged in the air interdiction operations of each country, providing substan­ tial assistance that has contributed in an essential, direct and immediate way (w hether by “real tim e” information or otherwise) to those countries’ ability to shoot dow n civil aircraft. Moreover, our assistance has been of a type and extent that Colom bia and Peru would have difficulty in providing for themselves or in obtaining from other sources. In the absence of changes in the policies and prac­ tices of C olom bia and Peru, there is a very substantial danger that the USG activi­ ties described to us m eet the purpose elem ent of aiding and abetting. 3. Acts of assistance. The application o f the third element to the question we are considering is, we think, fairly straightforward. As the Supreme Court recently reiterated, aiding and abetting “ ‘com prehends all assistance rendered by words, acts, encouragem ent, support, or presence.’” R eves v. Ernst & Young, 507 U.S. 170, 178 (1993) (quoting B la ck ’s L aw D ictionary 68 (6th ed. 1990)). Gauged by this definition, many or most forms of USG activities that have been described 20 In g en eral, U SG inform ation-sharing an d other form s o f assistance to foreign nations do not im plicate the U n ited S tates in those n a tio n s’ actions b ecau se, am ong o th er reasons, the purpose elem ent o f aiding and abetting is not met. H o w ev er im portant USG aid m ay be as an overall m atter, the provision o f .information, resources, train in g , and su p p o rt to a foreign nation w ould not in itse lf provide a basis for concluding that the U nited S tates intended to facilitate that n a tio n ’s unlaw ful actions Indeed, the general nature o f such aid and its le g itim a te p u rp o ses (the furtherance of th e diplom atic, national security, and dem ocratization goals of USG fo reig n policy) rebut any assertion that its purpose is to su p p o rt the occasional or unexpected unlawful acts o f re c ip ie n t gov ern m en ts. S ee generally U nited S tates v P tno-P erez, 8 70 F 2d 1230, 1237 (7th Cir.) (en banc) (aid in g and ab ettin g requires “ a fuller e n g ag em en t with [the prim ary a cto r's] activities” than accidental or iso lated assistan ce creates), cert denied, 4 9 3 U.S. 901 (1989) 158 U nited Slates A ssistance to Countries that Shoot Down C ivil A ircraft Involved m D rug Trafficking to us could be fairly described as “act[s] of helping” Colombia or Peru to carry out a shootdown policy. That conclusion, when com bined with our analysis o f the knowledge and purpose elements, leads us to think that there is grave risk that the described USG activities contravene 18 U.S.C. § 32(b)(2). C. It has been suggested that the problems for USG information-sharing and other assistance to Colombia and Peru that are posed by 18 U.S.C. §§ 2(a) and 32(b) might be eliminated by seeking assurances from the governments of those countries with respect to their shootdown activities. Two possible forms of such an assurance have been posited: an assurance that Colombia and Peru would engage in no more shootdowns of civil aircraft, or an assurance that Colombia and Peru would make no use of information (or other aid) provided by the United States in effecting shootdowns. The argument would be that such assurances would negate either the first, knowledge element, or the second, purpose prong o f aiding and abetting. An initial point applies to both forms of assurance: to be of any legal signifi­ cance, an assurance must be made by an official of the other government with authority to bind that government, and it must be deemed reliable by a high officer of the United States, acting with full knowledge o f the relevant facts and circum ­ stances. Assurances from subordinate officials could not reasonably be taken to represent a position that would be adhered to by other officials of that government. The acceptance of assurances that were not deem ed credible in fa c t by USG offi­ cials might readily be characterized as a “deliberate effort to avoid [the] know l­ edge,” G iovannetti, 919 F.2d at 1229, that the assurance did not represent the actual intentions of the other government. In light of the gravity o f the issue, the decision to accept and act on such an assurance would be a policy decision o f such significance that it could be appropriately made only by a very high officer o f this Government. A reliable assurance (as we have defined it) lhat the foreign government would carry out no shootdowns falling within the prohibition of § 32(b)(2) would, in our opinion, clearly negate the knowledge element of aiding and abetting. With such an assurance, there would be no known or suspected intention to effect unlawful shootdowns for USG officials to have knowledge of; put another way, the acceptance o f such an assurance as reliable would constitute a judgm ent that the foreign government was engaged in no criminal activity in this respect. If it subse­ quently became apparent that this judgm ent was mistaken, a reevaluation o f the legal status of USG assistance would be necessary, but until and if evidence emerged that the other government intended to violate its assurance, USG aid of all sorts, including the provision of real-time flight information, would be lawful. For similar reasons, a reliable assurance that the foreign government would 159 Opinions o f the O ffice o f L eg a l C ounsel not carry out any unlawful shootdowns would eliminate any argument that USG officials had a “desire to help the activity succeed,” C arson , 9 F.3d at 586, because it would represent a judgm ent that no unlawful activity was contemplated or under way. A more problem atic case is posed if the foreign government declined to re­ nounce its shootdown policy but offered assurances that it would not use USGsupplied information or other assistance in carrying out shootdowns violating § 32(b)(2). (In such a case, the foreign governm ent might carry out such activities using inform ation or assistance obtained from other sources.) A bare assurance to that effect, without more, would be insufficient to remove the risk of contravening the statute, given what we understand to be the widespread use of USG-supplied inform ation, the commingling of USG and foreign government information, and the tem ptation on the part of the foreign governm ent’s operational officers to make use o f information or assistance extrem ely valuable to effecting their own govern­ m ent’s law enforcem ent program. W e believe that there are conditions in which such assurances would be suffi­ ciently reliable to perm it the United States to continue to provide information and assistance to a foreign country’s antinarcotics program even if that country de­ clined to renounce its shootdown policy. First, the United States and the foreign country should agree that the sole purpose for which USG information and other assistance would be provided and used was to assist in the execution of a groundbased end game (searches, seizures and arrests), and that such information and assistance would not be used to target civil aircraft for destruction. Second, the agreem ent should establish mechanisms by which USG personnel would obtain detailed and specific knowledge as to how the USG-provided information and as­ sistance w ere in fact being used, and thus be able to identify at an operational level any instances o f non-compliance w ith the agreement. Third, the agreement should stipulate that if any incident should occur in which the foreign governm ent’s agents fired on a civil aircraft, USG personnel would be able to verify whether USGprovided inform ation and assistance had been used in that instance, or whether the foreign country had employed only information and assistance from other sources in carrying out that operation. Finally, the agreem ent should provide for the termi­ nation o f U SG -supplied information and assistance in the event of material noncom pliance. W ere it possible to reach an agreem ent that incorporated such safe­ guards, we believe that it would insulate U SG personnel from liability in the event the foreign governm ent destroyed a civil aircraft. III. U nited States aid to Colombia and Peru m ight also implicate USG personnel in those governm ents’ shootdown policies on a conspiracy rationale. See 18 U.S.C. 160 U nited States A ssistance to C ountries that Shoot Down C ivil A ircraft Involved in D rug Trafficking § 3 7 1 . The concept of conspiracy is distinct from that of aiding and abetting.21 Aiding and abetting liability does not depend on an actual agreement between the primary actor and the aider and abettor.22 In contrast, “agreement remains the es­ sential element of the crime, and serves to distinguish conspiracy from aiding and abetting which, although often based on agreement, does not require proof o f that fact.” lannelli v. United S tates , 420 U.S. 770, 111 n.10 (1975). In addition, li­ ability for participation in a conspiracy may attach to someone even though he or she provides no material assistance toward the conspiracy’s goals, and even if the primary criminal activity that is the object of the conspiracy never takes place. See, e.g., U nited States v. Townsend, 924 F.2d 1385, 1399 (7th Cir. 1991).23 USG activities — including information-sharing and technical advice — that would be of material assistance in effecting shootdowns do not in themselves constitute an agreement between USG personnel and others to carry out shootdowns, but as we understand the facts the following are both true. (1) The United States intends, and has agreed with the governments of Colom bia and Peru, to bolster the antinarcotics law enforcement activities o f those countries. (2) The governments of Colombia (expressly) and Peru (in practice) regard shootdowns as an integral part o f their antinarcotics law enforcement activities. In those circumstances, courts might well view the distinction between USG assistance to their antinarcotics programs gener­ ally and USG assistance to the shootdown component o f those programs as thin or non-existent, and thus construe ongoing USG assistance as evidence of an agree­ ment. See U nited States v. Lechuga, 994 F.2d 346, 350 (7th Cir.) (en banc), cert, denied, 510 U.S. 982 (1993). W e believe that it is imperative to make this Governm ent’s disapproval of shootdowns in violation of § 32(b) clear in order to eliminate any suggestion that In this m em orandum , we focus on the potential for aiding and abetting liability for tw o reasons First, it is unclear that under the circum stances outlined to us the relationship betw een the activities of U SG p e rso n ­ nel and shootdow n actions by foreign governm ents co u ld reasonably be deem ed an “agreem ent ” to violate 18 U S C § 32(b)(2) A lesser degree o f association w ith a crim inal venture suffices to create aiding and a b e t­ ting liability, how ever, and we think that a more serious argum ent can be m ade that som e form s o f USG assistance could fall w ithin the definition o f aiding and abetting See U nited States v C owart, 595 F 2d 1023, 1031 (5th C ir 1979) (the “ ‘co m m unity o f unlaw ful in te n t'” present m aiding and abetting, although "sim ilar to the ‘ag reem en t’ upon w hich the crim e o f conspiracy is based, does not rise to the level o f ‘a g re em en t'” ) In addition, and vitally, as stated in the text w e believe the risk that U SG personnel m ight plausibly be view ed as conspirators can and should be elim inated by the com m unication to foreign g o v e rn ­ m ents and USG operational personnel o f the U nited S tates’s firm opposition to any shootdow ns o f civil aircraft c o n tra n to § 32(b)(2) o r international law. " The Seventh C ircuit recently hypothesized a case illustrating this point. Suppose som eone w ho adm ired crim inals and hated the police learned that the police were planning a raid on a drug ring, and, hoping to foil the raid and assure the success of the ring, w arned its m em bers — w ith w hom he had no previous, or for that m atter subse­ quent, dealings — o f the im pending raid He w ould be an aider and abettor o f the drug conspiracy, but not a m em ber o f it C arson, 9 F 3d at 586 (quoting Zajlro , 945 F.2d at 884) T hus, USG personnel theoretically could be liable for conspiracy if their actions w ere construed as constituting an agreem ent with officials o f the foreign governm ent to carry out shootdow ns and if the latter took som e overt action tow ard accom plishing a shootdow n It w ould be unnecessary under the law o f c o n ­ spiracy for a shootdow n to take place or for any U SG actions actually to contribute to a shootdow n 161 Opinions o f th e Office o f L egal C ounsel USG personnel have entered into a conspiratorial agreement with foreign officials involving unlawful shootdowns since liability as a conspirator attaches even if the substantive unlawful act never takes place. In addition, we think that USG agen­ cies should specifically instruct their personnel not to enter into any agreements or arrangem ents with the officials or agents of foreign governments that encourage or condone shootdowns. S ee generally la n n elli , 4 20 U.S. at 777-79. IV. This case is characterized by a com bination of factors: it involves a criminal statute that explicitly has extraterritorial reach, that is applicable to foreign gov­ ernm ent m ilitary and police personnel, and that defines a very serious offense. M oreover, our governm ent is fully engaged in furnishing direct and substantial assistance that is not otherwise available to the foreign nations involved, and at least some of the USG personnel w ho provide that assistance have actual knowl­ edge that it is likely to be used in com m itting violations. Given this com bination of factors, we conclude that, in the absence of reliable assurances in the sense defined above, USG agencies and personnel may not pro­ vide inform ation (w hether “real-time” or other) or other USG assistance (including training and equipm ent) to Colombia or Peru in circumstances in which there is a reasonably foreseeable possibility that such information or assistance will be used in shooting down civil aircraft, including aircraft suspected of drug trafficking. Furtherm ore, we note that § 32(b)(2) prohibits the destruction of civil aircraft “while such aircraft is in service,” as well as “damage to such an aircraft which renders that aircraft incapable of flight” (emphasis added). The statute defines “[i]n services” to “mean[] any time from the beginning of preflight preparation of the aircraft by ground personnel or by the crew for a specific flight until twentyfour hours after any landing.” 18 U.S.C. § 31. Thus, USG assistance for certain operations against aircraft on the g rou n d may come within the statutory prohibi­ tions. Section 32(b)(2) does not preclude ordinary law enforcement operations directed at a plane’s crew or cargo during those times.24 It does, however, appear to forbid airborne law enforcers to bomb or strafe a suspect plane that has landed or that is preparing to take o f f 25 24 F o r exam ple, nothing in the section fo rb id s the police to o rder the crew of a suspected drug trafficking plane to su rren d er upon landing, o r to search o r seize the p lane or its cargo (C onsequential dam age to the aircraft w ould not co n stitu te a violation of the statute ) N or does the section forbid the police to use deadly force a g ain st a p lane if they are them selves en d an g ered by its c re w ’s arm ed resistance to their legitim ate orders T he police m ay also use force to rescue any hostages held aboard the plane. 25 A v alid law en fo rcem en t operation in ten d ed to seize a pane on the ground and arrest us crew and an attack on the airplane itse lf in violation o f § 3 2 (b )(2 ) m ay b o th result in the disabling or destruction o f the aircraft. No liab ility un d er the section would attach, either to prim ary actors or to those w ho assist them , m the fo rm er circu m stan ce. As described to us, how ever, the C olom bian and Peruvian counternarcotics pro­ gram s each e n co m p ass (p o ten tial) actions that w ould in ten tio n ally fall w ithin the latter, forbidden category O bviously , on d ifferen t facts we co u ld reach a d ifferen t c o n clu sio n 162 U nited Sla tes A ssistance to Countries lhat Shoot D own C ivil A ircraft Involved in D rug T rafficking We will be pleased to cooperate with legal counsel for other agencies in evalu­ ating specific programs or forms of aid under that standard. V. Our conclusions here must not be exaggerated. W e have been asked a specific question about particular forms of USG assistance to the Colombian and Peruvian aerial interdiction programs. The application of the legal standard described here to any other USG programs — including other programs designed to benefit Co­ lombia or Peru — will require careful, fact-sensitive analysis. W e see no need to modify USG programs whose connection to those governm ents’ shootdown poli­ cies is remote and attenuated, and (as noted above) we perceive no implications for USG assistance to any other foreign country unless another government adopts a policy of shooting down civil aircraft. Other limitations on our conclusions should be noted. In certain circumstances, USG personnel may employ deadly force against civil aircraft without subjecting themselves to liability under § 32(b)(2). “The act is a criminal statute, and there­ fore must be construed strictly, ‘lest those be brought within its reach who are not clearly included.’”26 Although these circumstances are extremely limited, they may in fact arise. Specifically, we believe that the section would not apply to the actions of United States military forces acting on behalf of the United States during a state of hostilities.27 As discussed above, § 32(b)(2) was intended to implement the United States’s obligations under the Montreal Convention. That Convention does not appear to apply to acts o f armed forces that are otherwise governed by the laws of armed conflict.28 (The general rule under the law of armed conflict is that civil ~6 Export S a le s o j A g ricu ltu ra l C om m odities to Soviet U nion a n d E astern European B loc C ountries, 42 O p ^A tt’y G e n 229, 232 (1963) (quoting U nited S ta tes ex rel M arcus v H ess, 317 U.S. 537, 542 (1943)) 27 We do not m ean to confine a '‘state o f hostilities’7 to som e specific legal category, such as a state of declared w ar in the constitutional sense, see U S C onst, art I, § 8, cl. 1 1, or a situation su ch as to trig g er the reporting requirem ents o f the W ar Pow ers R esolution, see 50 U S C § 1543(a) 28 International agreem ents such as the M ontreal C onvention are generally concluded with a v iew to regulating ordinary, peace-tim e conditions. A ccordingly, one treatise w riter has stated it to be the general rule that *“ [i]f, as the result o f a w ar, a neutral or belligerent State is faced w ith the necessity of tak in g ex ­ traordinary m easures tem porarily affecting the application o f such conventions in order to protect its n e u tra l­ ity or for the purposes o f national defence, it is entitled to do so even if no express reservations are m ad e in the convention. ’’ Bin C heng, The Law oj In tern a tio n a l A ir Transport 483 (1962) (quoting The S S W im ­ bledon (G r Brit et al v G erm .), 1923 P C 1J (ser. A) No 1, at 36 (A ug. 17) (dissenting opinion o f Judges A nzilotti and H uber)) A cco rd Prelim inary O bjections S ubm itted by the U nited States o f A m erica, C ase C oncerning the A e ria l Incident o f 3 Ju lx 1988 (Isla m ic Republic o f Iran v U n ited States o f A m erica) at 200, 203 (M ar 4, 1991) ( “the M ontreal C onvention w as intended to prevent and deter saboteurs and terrorists from unlaw fully interfering with civil aviation and endangering innocent lives The d rafters of the C o n v en ­ tion did not discuss the actions o f m ilitary forces acting on b eh alf o f a State during hostilities, and there is no reason to believe that they intended the C onvention to extend to such actions . . . Infringem ents on the law s o f arm ed conflict through international agreem ents prim arily addressing situations other than arm ed con flict are not to be presum ed. There is no indication that the d rafteis o f the M ontreal C onvention intended it to apply to m ilitary forces acting m arm ed conflict. If they had so intended, they w ould have had to a d d re ss a m ynad o f issues relating to acts by m ilitary fo r c e s .') This conclusion is corroborated by article 89 o f the 163 Opinions o f th e O ffice o f L eg a l Counsel aircraft are im mune from attack unless they are being used for military purposes or pose an im m ediate military threat.29) W e do not think that § 32(b)(2) should be construed to have the surprising and almost certainly unintended effect of crim i­ nalizing actions by military personnel that are lawful under international law and the law s o f arm ed conflict. We note specifically that the application o f § 32(b)(2) to acts of U nited States military personnel in a state of hostilities could readily lead to absurdities: for exam ple, it could mean in som e circumstances that military per­ sonnel would not be able to engage in reasonable self-defense without subjecting them selves to the risk of criminal prosecution. Unless Congress by a clear and unequivocal statem ent declares otherwise, § 32(b)(2) should be construed to avoid such outcom es.30 Thus, we do not think the statute, as written, should apply to such incidents as the dow ning on July 3, 1988 o f Iran Air Flight 655 by the United States Navy cruiser Vincennes .3I Furtherm ore, even in cases in which the laws o f armed conflict are inapplicable, we believe that a USG officer or em ployee may use deadly force against civil air­ craft w ithout violating § 32(b)(2) if he or she reasonably believes that the aircraft poses a threat o f serious physical harm to the officer or employee or to another person.32 A situation o f this kind could arise, for example, if an aircraft suspected of narcotics trafficking began firing on, or attempted to ram, a law enforcement aircraft that was tracking it. Assuming that such aggressive actions posed a direct and im m ediate threat to the lives of USG personnel or of others aboard the tracking C hicago C o n v en tio n , w hich declares in part th a t “ [i]n case o f w ar, the provisions o f this C onvention shall not affect the freedom o f action o f any o f the c o n tractin g States affected, w hether as belligerents or as neutrals ’* See D av id K. L innan, Ira n A ir Flight 655 a n d B eyond: Free Passage, M istaken Self-D efense, a n d State R e sp o n sib ility , 16 Y ale J In t’l L 245, 267 (1 9 9 1 ) (“the n atu re o f the M ontreal C onvention as an antih ijacking and sab o tag e treaty seem s to preclude its ap p licatio n to the acts o f arm ed forces governed by the law o f arm ed c o n flic t under article 89 of the C h ic a g o C o n v en tio n ” ) See also 1 G reen H ackw orth, D igest o f In te rn a tio n a l L a w 5 52-55 (1 943) (describing e a rlie r practice and theory). 29 Se e D ep artm en t o f the A ir Force, In tern a tio n a l L a w — The C onduct o f A rm ed C onflict a nd A ir O pera­ tions, <][ 4 - 3 ( a ) ( l), (b) (1976); Stokdyk, C om m ent, A irb o rn e D ru g Trafficking D e terren c e • Can a Shootdow n P olicy F lv?, su p ra n o te 6, at 1321 30 C f U n ite d S ta te s v. K irbv, 74 U S. (7 W a l l ) 482, 4 8 6 -8 7 (1869) (holding that statute punishing o b ­ struction o f m ail did not apply to temporary d e te n tio n o f m ail caused by e a r n e r ’s arrest for m urder); N ardone v U n ited S ta tes, 302 U .S. 379, 384 (1937) (p u b lic officers m ay be im plicitly excluded from statutory lan­ guage e m b racin g all persons because ‘a read in g w hich w o u ld include su ch officers w ould work obvious a bsurdity as, fo r ex am p le, the application o f a sp eed law to a policem an pursuing a crim inal or the d n v e r o f a fire e n g in e re sp o n d in g to an a la rm '5). 31 S e e M arian N ash Leich, D e n ia l o f Liability’. Ex G ra tia C om pensation on a H um anitarian B asis, 83 A m . J. In t’l L. 319, 3 21-22 (1 9 8 9 ) (quoting C ongressional testim ony o f State D epartm ent Legal A dviser S ofaer that “ [i]n the case o f the Iran Air in cid en t, the d am ag e caused in fin n g upon #655 was incidental to the law ful use o f force T h e com m ander o f the U.S S. Vincennes evidently believed that his ship was under im m in en t th re a t o f attack from a hostile aircraft, and he attem pted repeatedly to identify or contact the aircraft b efo re taking d efensiv e action T h erefo re, the U nited States does not accept legal responsibility for this in c id e n t. . M). 32 S e e T e n n e sse e v. G a rn e r, 471 U.S. 1, 1 1 (1985) (d iscu ssin g constitutionally reasonable use o f deadly force); N ew O rlea n s a n d N ortheastern R R v. J o p e s , 142 U .S. 18, 23 (1 8 9 1 ) (“the law o f self-defence ju s ti­ fies an act d o n e in h o n est and reasonable b e lie f o f im m ediate dan g er”). 164 U nited States A ssistance lo C ountries that Shoot Down Civil A ircraft In vo lved in D rug T rafficking aircraft, and that no reasonably safe alternative would dispel that threat, we believe that the use of such force would not constitute a violation of § 32(b)(2).33 W ALTER DELLINGER A ssistan t A ttorn ey G eneral Office o f Legal Counsel 31 T o the extern that § 32(b)(2) does not apply to the use o f deadly force by USG m ilitary or o th e r p erson­ nel in the circum stances described above, it w ould o f necessity be inapplicable as w ell to the actions of sim ilarly situated personnel o f the C olom bian o r Peruvian governm ents T hat is, such foreign governm ental agents could em ploy deadly force against civilian aircraft in the sam e circum stances in w hich USG personnel w ere able to do so USG personnel w ho assisted foreign governm ent agents in such law ful and legitim ate acts o f self-defense w ould o f course not be subject to liability, since one c an n o t be prosecuted for aid in g and abetting the com m ission o f an act that is not itse lf a crim e. S ee Sh uttlesw urth v. C itv o f B irm ingham , 373 U S . 2 6 2 (1 9 6 3 ) 165

Write a legal research memo on the following topic.

February 2, 1979 79-11 MEMORANDUM OPINION FOR THE ADMINISTRATOR OF VETERANS AFFAIRS Federal Labor Relations Council—LaborManagement Relations for Executive Agencies (Executive Order No. 11491)—Jurisdiction of the Council in Labor Disputes Concerning the Conditions of Employment of Medical, Dental, and Nursing Personnel of the Veterans Administration This responds to your request for the opinion o f the Attorney General concerning the obligation o f the A dm inistrator o f Veterans Affairs (VA) to abide by the decision o f the Federal Labor Relations Council (FLRC) in American Federation o f Government Employees, Local 1739 and Vet­ erans Administration Hospital, Salem, Va., No. 76A-88 (1978) (Union and Hospital, respectively), that Executive O rder No. 11491 required the Hospital to negotiate with the Union the procedures for the evaluation of probationary professional medical employees. VA contends that 38 U.S.C. § 4108(a) exempts its Departm ent o f Medicine and Surgery (DMS) from the order’s requirement. The A ttorney General referred the m atter to this of­ fice. We conclude that 38 U .S.C . § 4108(a) does not exempt VA, and that VA will not be acting unlawfully in implementing FLRC’s decision. Executive O rder No. 11491 established a system o f labor-management relations for executive agencies.' It applied, with exceptions not relevant here, to all agencies o f the executive branch, including VA.2 The order authorizes a majority o f the employees in an appropriate unit o f an 1 See, generally. Old Dominion Branch No. 496, National Association o f Letter Carriers v. Austin, 418 U.S. 264, 273-75 (1974). Exec. O rder N o. 11491 has been superseded, effective January 13, 1979, by Title Vll o f the Civil Service Reform Act o f 1978, 92 Stat. 1111, 5 U .S.C . § 1101 et seq. (Supp. 1979). However, the Act does not affect administrative pro­ ceedings initiated under Exec. O rder No. 11491. See § 902(b), 92 Stat. 1224. 1 Exec. O rder No. 11491, §§ 2(a), 3(a); see 38 U .S.C . § 201. 74 agency to select a union as its exclusive representative.3 To the extent per­ mitted by law and executive-branch-wide regulations, § 11(a) of the order requires an agency to negotiate in good faith with an exclusive representa­ tive o f the bargaining unit with respect to personnel policies and practices and matters affecting working conditions. But an agency is not required to negotiate over the content o f its own agency-wide regulations “ for which a compelling need exists under criteria established by the Federal Labor Relations Council.” 4 When an agency contends that a subject on which a union proposes to negotiate is controlled by an agency-wide regulation, the union may ap­ peal to the FLRC .5 If the FLRC determines that there is no compelling need for the regulation, the agency is required to negotiate on the subject.6 Failure to negotiate then becomes an unfair labor practice, and the Assist­ ant Secretary o f Labor for Labor-Management Relations may order the agency to negotiate.7 The agency may appeal the Assistant Secretary’s decision to the final administrative authority, the FLR C .8 The dispute in question concerns the negotiability o f VA’s procedures for retaining or dismissing probationary medical professional employees. Physicians and other medical professionals in the DMS are appointed “ after [their] qualifications have been satisfactorily established, in accord­ ance with regulations prescribed by the Administrator, without regard to civil service requirem ents.” 38 U.S.C. § 4106(a). Under 38 U.S.C. § 4106(b): Such appointm ents as described in subsection (a) o f this section shall be for a probationary period o f three years and the record o f each person serving under such appointm ent in the Medical, Dental, and Nursing Services shall be reviewed from time to time by a board, appointed in accordance with regulations o f the A d­ ministrator, and if said board shall find him not fully qualified and satisfactory he shall be separated from the service. The implementing VA regulations provide that each employee subject to § 4106(b) will have his record reviewed in a fair and impartial m anner by a professional standards board (PSB) during the employee’s probationary period. Although the regulations authorize the employee to submit a writ­ ten or oral statement to the PSB during the review, the employee “ is not entitled to legal or other representation.’” The Union requested the Hospital to negotiate the professional employees’ right to legal or other representation during the review o f their records by the PSB. The VA 1 Exec. Order No. 11491, § 10(a); c f 29 U .S.C . § 159. 4 Exec. Order No. 11491, § 11(a). ’ Exec. Order No. 11491, § ll(c)(4)(ii). 6 Exec. Order No. 11491, § 4(c)(2). 7 Exec. O rder N o. 11491, §§ 6(a)(4); 6(b); 19(a)(6). The agency cannot reopen the nego­ tiability dispute in the unfair labor practice proceeding. Exec. O rder No. 11491, § 19(d). ■ Exec. O rder No. 11491, § 4(c)(1). ’ Veterans’ Adm inistration M anual, MP-5, Part 11, Ch. 4, § 4-06(b)(4). 75 determined that the proposal was contrary to its agency-wide regulations, and the Union appealed to the FLRC for a “ compelling need” determination. The VA argued before the FLRC that it was deprived o f jurisdiction by 38 U.S.C. § 4108(a), which provides in pertinent part: Notwithstanding any law, Executive order, or regulation, the Adm inistrator shall prescribe by regulation the hours and condi­ tions o f employment and leaves o f absence o f physicians, den­ tists, podiatrists, optom etrists, nurses, physician assistants, and expanded-function dental auxiliaries appointed to the Depart­ ment o f Medicine and Surgery * * *. In its decision dated February 28, 1978, the FLRC first decided that it had jurisdiction over the case. On the merits, it held that no compelling need existed for the regulation prohibiting probationary professional medical employees from being assisted by counsel in a PSB review. The VA con­ tinues to contend that 38 U .S.C . § 4108(a) excluded this type o f dispute from the FLRC’s jurisdiction, and therefore, the Hospital refused to negotiate with the Union on the subject. The VA claims first, that 38 U .S.C . § 4108(a) exempts it from the authority o f any other statute or Executive order in determining the “ hours, conditions o f employment, and leaves o f absence” 10 o f DMS pro­ fessional employees. Further, it argues that evaluation procedures under 38 U .S.C . § 4106(b) are “ conditions o f em ploym ent.” Based on these arguments it concludes that notwithstanding Executive Order No. 11491, § 4108(a) deprived FLRC o f jurisdiction, and VA was not required to negotiate on these procedures. It is not necessary, however, to determine whether § 4108(a) or the Executive order would control should they con­ flict. Such a conflict would arise only if the issue on which the Union wishes to negotiate—procedures before professional standards review boards—is in fact a “ condition o f employm ent” within § 4108(a). O ur ex­ amination o f the legislative history o f the statute that established the DMS has convinced us it is not. The Departm ent o f Medicine and Surgery was established by Pub. L. No. 293, 79th Cong., 1st sess., 59 Stat. 675. In creating the departm ent the Congress intended to insure that VA may hire and discharge medical, dental, and nursing professionals without regard to competitive examina­ tion and procedural protections given employees in the classified civil serv­ ice." Accordingly, § 6 o f the statute, now 38 U.S.C. § 4106, regulated the appointm ent, tenure, £nd prom otion o f professional probationary 10 We note that 38 U .S.C . § 4108(a) is incorrectly quoted on page 3 o f your request as em­ powering the A dm inistrator to prescribe “ term s and conditions of employm ent.” " See H . Rept. 1316, 79th C ong., 1st sess., at 1-2; S. Rept. 853, 79th C ong., 1st sess., at 1; Hearings before the Com mittee on W orld W ar Veterans Legislation o f the House o f Repre­ sentatives on H .R . 4225, 79th C ong., 1st sess., at 36-39 (statem ent o f Paul Hawley, Surgeon General, Veterans’ Adm inistration). 76 employees appointed “ without regard to civil-service requirem ents.” P ro­ bationary tenure, governed by § 6(b), 38 U.S.C. § 4106(b), permits the dis­ missal o f unsatisfactory probationers after a 3-year period. The pro­ cedural protections given classified civil service employees were not granted to this class o f employees.12 Further, section 10 o f the statute, 38 U .S.C. § 4110, establishes a disciplinary system for permanent employees independent o f the civil service laws.11 Section 4108(a) o f title 38 was enacted as 7(b) o f the statute. In his re­ marks on behalf of the House Committee on World W ar Veterans Legisla­ tion, Representative Scrivner explained: In section (b), we provide that notwithstanding any law, Ex­ ecutive order, or regulation, the Adm inistrator shall prescribe by regulation the hours and working conditions and leaves o f ab­ sence o f doctors, dentists, and nurses.14 This is the only discussion o f § 7(b) in the legislative history. From its context in the statute and its limited legislative history, the “ conditions o f employment” in 38 U.S.C. § 4108(a) are matters similar to hours and leave, i.e., duties and workload; tenure and discharge o f pro­ fessional employees are regulated by other portions o f the statute. Moreover, if “ conditions o f employment” included tenure and discharge, the breadth o f § 4108(a) would have made it unnecessary for Congress to expressly exclude appointm ents under § 4106 from the civil service laws or to provide a separate disciplinary system under 38 U.S.C. § 4110. The pro­ cedures for professional evaluation are set out in 38 U .S.C . § 4106(b). Therefore, § 4108(a) does not exempt the Department o f Medicine and Surgery from the FLRC’s jurisdiction in this case. Jo h n M . H a rm o n Assistant A ttorney General Office o f Legal Counsel 11 Section 6 and subsection 6(b) Rept. 858, 79th Cong., 2d sess., at 1, Rec . 11656 (Representative Rogers), ative Engle). M See S. Rept. 858, 79th Cong., Scrivner). were extensively discussed in the legislative process. See S. 3; H. Rept. 1316, 79th Cong., 1st sess., at 1-2; 91 C o n g . 11659 (Representative Cunningham ), 11665 (Represent­ 1st sess., at 4; 91 C o n g . R e c . 11663 (Representative 14 91 C o n g . R e c . 11662-63 (R ep resen ta tiv e Scrivner). 77

Write a legal research memo on the following topic.

February 2, 1979 79-11 MEMORANDUM OPINION FOR THE ADMINISTRATOR OF VETERANS AFFAIRS Federal Labor Relations Council—LaborManagement Relations for Executive Agencies (Executive Order No. 11491)—Jurisdiction of the Council in Labor Disputes Concerning the Conditions of Employment of Medical, Dental, and Nursing Personnel of the Veterans Administration This responds to your request for the opinion o f the Attorney General concerning the obligation o f the A dm inistrator o f Veterans Affairs (VA) to abide by the decision o f the Federal Labor Relations Council (FLRC) in American Federation o f Government Employees, Local 1739 and Vet­ erans Administration Hospital, Salem, Va., No. 76A-88 (1978) (Union and Hospital, respectively), that Executive O rder No. 11491 required the Hospital to negotiate with the Union the procedures for the evaluation of probationary professional medical employees. VA contends that 38 U.S.C. § 4108(a) exempts its Departm ent o f Medicine and Surgery (DMS) from the order’s requirement. The A ttorney General referred the m atter to this of­ fice. We conclude that 38 U .S.C . § 4108(a) does not exempt VA, and that VA will not be acting unlawfully in implementing FLRC’s decision. Executive O rder No. 11491 established a system o f labor-management relations for executive agencies.' It applied, with exceptions not relevant here, to all agencies o f the executive branch, including VA.2 The order authorizes a majority o f the employees in an appropriate unit o f an 1 See, generally. Old Dominion Branch No. 496, National Association o f Letter Carriers v. Austin, 418 U.S. 264, 273-75 (1974). Exec. O rder N o. 11491 has been superseded, effective January 13, 1979, by Title Vll o f the Civil Service Reform Act o f 1978, 92 Stat. 1111, 5 U .S.C . § 1101 et seq. (Supp. 1979). However, the Act does not affect administrative pro­ ceedings initiated under Exec. O rder No. 11491. See § 902(b), 92 Stat. 1224. 1 Exec. O rder No. 11491, §§ 2(a), 3(a); see 38 U .S.C . § 201. 74 agency to select a union as its exclusive representative.3 To the extent per­ mitted by law and executive-branch-wide regulations, § 11(a) of the order requires an agency to negotiate in good faith with an exclusive representa­ tive o f the bargaining unit with respect to personnel policies and practices and matters affecting working conditions. But an agency is not required to negotiate over the content o f its own agency-wide regulations “ for which a compelling need exists under criteria established by the Federal Labor Relations Council.” 4 When an agency contends that a subject on which a union proposes to negotiate is controlled by an agency-wide regulation, the union may ap­ peal to the FLRC .5 If the FLRC determines that there is no compelling need for the regulation, the agency is required to negotiate on the subject.6 Failure to negotiate then becomes an unfair labor practice, and the Assist­ ant Secretary o f Labor for Labor-Management Relations may order the agency to negotiate.7 The agency may appeal the Assistant Secretary’s decision to the final administrative authority, the FLR C .8 The dispute in question concerns the negotiability o f VA’s procedures for retaining or dismissing probationary medical professional employees. Physicians and other medical professionals in the DMS are appointed “ after [their] qualifications have been satisfactorily established, in accord­ ance with regulations prescribed by the Administrator, without regard to civil service requirem ents.” 38 U.S.C. § 4106(a). Under 38 U.S.C. § 4106(b): Such appointm ents as described in subsection (a) o f this section shall be for a probationary period o f three years and the record o f each person serving under such appointm ent in the Medical, Dental, and Nursing Services shall be reviewed from time to time by a board, appointed in accordance with regulations o f the A d­ ministrator, and if said board shall find him not fully qualified and satisfactory he shall be separated from the service. The implementing VA regulations provide that each employee subject to § 4106(b) will have his record reviewed in a fair and impartial m anner by a professional standards board (PSB) during the employee’s probationary period. Although the regulations authorize the employee to submit a writ­ ten or oral statement to the PSB during the review, the employee “ is not entitled to legal or other representation.’” The Union requested the Hospital to negotiate the professional employees’ right to legal or other representation during the review o f their records by the PSB. The VA 1 Exec. Order No. 11491, § 10(a); c f 29 U .S.C . § 159. 4 Exec. Order No. 11491, § 11(a). ’ Exec. Order No. 11491, § ll(c)(4)(ii). 6 Exec. Order No. 11491, § 4(c)(2). 7 Exec. O rder N o. 11491, §§ 6(a)(4); 6(b); 19(a)(6). The agency cannot reopen the nego­ tiability dispute in the unfair labor practice proceeding. Exec. O rder No. 11491, § 19(d). ■ Exec. O rder No. 11491, § 4(c)(1). ’ Veterans’ Adm inistration M anual, MP-5, Part 11, Ch. 4, § 4-06(b)(4). 75 determined that the proposal was contrary to its agency-wide regulations, and the Union appealed to the FLRC for a “ compelling need” determination. The VA argued before the FLRC that it was deprived o f jurisdiction by 38 U.S.C. § 4108(a), which provides in pertinent part: Notwithstanding any law, Executive order, or regulation, the Adm inistrator shall prescribe by regulation the hours and condi­ tions o f employment and leaves o f absence o f physicians, den­ tists, podiatrists, optom etrists, nurses, physician assistants, and expanded-function dental auxiliaries appointed to the Depart­ ment o f Medicine and Surgery * * *. In its decision dated February 28, 1978, the FLRC first decided that it had jurisdiction over the case. On the merits, it held that no compelling need existed for the regulation prohibiting probationary professional medical employees from being assisted by counsel in a PSB review. The VA con­ tinues to contend that 38 U .S.C . § 4108(a) excluded this type o f dispute from the FLRC’s jurisdiction, and therefore, the Hospital refused to negotiate with the Union on the subject. The VA claims first, that 38 U .S.C . § 4108(a) exempts it from the authority o f any other statute or Executive order in determining the “ hours, conditions o f employment, and leaves o f absence” 10 o f DMS pro­ fessional employees. Further, it argues that evaluation procedures under 38 U .S.C . § 4106(b) are “ conditions o f em ploym ent.” Based on these arguments it concludes that notwithstanding Executive Order No. 11491, § 4108(a) deprived FLRC o f jurisdiction, and VA was not required to negotiate on these procedures. It is not necessary, however, to determine whether § 4108(a) or the Executive order would control should they con­ flict. Such a conflict would arise only if the issue on which the Union wishes to negotiate—procedures before professional standards review boards—is in fact a “ condition o f employm ent” within § 4108(a). O ur ex­ amination o f the legislative history o f the statute that established the DMS has convinced us it is not. The Departm ent o f Medicine and Surgery was established by Pub. L. No. 293, 79th Cong., 1st sess., 59 Stat. 675. In creating the departm ent the Congress intended to insure that VA may hire and discharge medical, dental, and nursing professionals without regard to competitive examina­ tion and procedural protections given employees in the classified civil serv­ ice." Accordingly, § 6 o f the statute, now 38 U.S.C. § 4106, regulated the appointm ent, tenure, £nd prom otion o f professional probationary 10 We note that 38 U .S.C . § 4108(a) is incorrectly quoted on page 3 o f your request as em­ powering the A dm inistrator to prescribe “ term s and conditions of employm ent.” " See H . Rept. 1316, 79th C ong., 1st sess., at 1-2; S. Rept. 853, 79th C ong., 1st sess., at 1; Hearings before the Com mittee on W orld W ar Veterans Legislation o f the House o f Repre­ sentatives on H .R . 4225, 79th C ong., 1st sess., at 36-39 (statem ent o f Paul Hawley, Surgeon General, Veterans’ Adm inistration). 76 employees appointed “ without regard to civil-service requirem ents.” P ro­ bationary tenure, governed by § 6(b), 38 U.S.C. § 4106(b), permits the dis­ missal o f unsatisfactory probationers after a 3-year period. The pro­ cedural protections given classified civil service employees were not granted to this class o f employees.12 Further, section 10 o f the statute, 38 U .S.C. § 4110, establishes a disciplinary system for permanent employees independent o f the civil service laws.11 Section 4108(a) o f title 38 was enacted as 7(b) o f the statute. In his re­ marks on behalf of the House Committee on World W ar Veterans Legisla­ tion, Representative Scrivner explained: In section (b), we provide that notwithstanding any law, Ex­ ecutive order, or regulation, the Adm inistrator shall prescribe by regulation the hours and working conditions and leaves o f ab­ sence o f doctors, dentists, and nurses.14 This is the only discussion o f § 7(b) in the legislative history. From its context in the statute and its limited legislative history, the “ conditions o f employment” in 38 U.S.C. § 4108(a) are matters similar to hours and leave, i.e., duties and workload; tenure and discharge o f pro­ fessional employees are regulated by other portions o f the statute. Moreover, if “ conditions o f employment” included tenure and discharge, the breadth o f § 4108(a) would have made it unnecessary for Congress to expressly exclude appointm ents under § 4106 from the civil service laws or to provide a separate disciplinary system under 38 U.S.C. § 4110. The pro­ cedures for professional evaluation are set out in 38 U .S.C . § 4106(b). Therefore, § 4108(a) does not exempt the Department o f Medicine and Surgery from the FLRC’s jurisdiction in this case. Jo h n M . H a rm o n Assistant A ttorney General Office o f Legal Counsel 11 Section 6 and subsection 6(b) Rept. 858, 79th Cong., 2d sess., at 1, Rec . 11656 (Representative Rogers), ative Engle). M See S. Rept. 858, 79th Cong., Scrivner). were extensively discussed in the legislative process. See S. 3; H. Rept. 1316, 79th Cong., 1st sess., at 1-2; 91 C o n g . 11659 (Representative Cunningham ), 11665 (Represent­ 1st sess., at 4; 91 C o n g . R e c . 11663 (Representative 14 91 C o n g . R e c . 11662-63 (R ep resen ta tiv e Scrivner). 77

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(Slip Opinion) Requests by Individual Members of Congress for Executive Branch Information In reviewing requests from Congress, the Executive Branch’s longstanding policy has been to engage in the established process for working to accommodate congressional requests for information only when those requests come from a committee, subcommittee, or chairman acting pursuant to oversight authority delegated from a House of Congress. Departments and agencies, however, may appropriately give due weight and sympathetic consideration to requests for information from individual members of Congress not delegated such authority. Only a committee chairman may request presidential records under section 2205(2)(C) of the Presidential Records Act, unless the committee has specifically del egated that authority to another member. February 13, 2019 MEMORANDUM OPINION FOR THE FILES This memorandum expands upon a letter opinion for the Counsel to the President issued on May 1, 2017, in which we addressed certain questions concerning the authority of individual members of Congress to exercise Congress’s oversight authority. Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch, 41 Op. O.L.C. __ (2017) (“Oversight by Individual Members”). This memorandum also memorializes more recent, informal advice provided to the General Counsel of the National Archives and Records Administration (“NARA”) concerning the authority of individual members to request presidential records under the Presidential Records Act (“PRA”). In Oversight by Individual Members, we concluded that “the constitutional authority to conduct oversight—that is, the authority to make official inquiries into and to conduct investigations of Executive Branch programs and activities—may be exercised only by each House of Congress or, under a delegation, by committees and subcommittees (or their chairmen).” Id. at *1. “Individual members of Congress, including ranking minority members,” we stated, “do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee.” Id. Oversight by Individual Members “briefly explained” our views concerning requests for information from individual members of Congress. 1 43 Op. O.L.C. __ (Feb. 13, 2019) Id. The Supreme Court has defined the congressional oversight authority to consist of the inherent power of each House to “gather information in aid of its legislative function” by means of compulsion, if necessary. Id. Each House has the authority to delegate that function under its own rules and procedures. Typically, however, Congress has not delegated such authority to individual members of Congress who are not committee chairmen. Although requests for information from individual members of Congress do not constitute exercises of Congress’s oversight authority, that does not mean that an individual member’s request should be treated the same as a Freedom of Information Act request or a request from a member of the general public. As a matter of comity, the Executive Branch’s appropriate respect for the legislative functions of individual members supports Executive Branch officials’ practice of giving due weight and sympathetic consideration to those requests. We recently addressed a related question in connection with the Senate Judiciary Committee’s request for presidential records relevant to the nomination of then-Judge Brett Kavanaugh to the Supreme Court. In July 2018, the Chairman of the Judiciary Committee requested from NARA special access to a substantial volume of records concerning Kavanaugh’s service in the Office of the White House Counsel during the George W. Bush Administration. Following that request, the Ranking Member of the Committee requested additional records—those relating to Kavanaugh’s subsequent work as Staff Secretary—that the Chairman had specifically declined to request. The PRA provides that a committee of Congress may request nonpublic records when needed for the conduct of its business. 44 U.S.C. § 2205(2)(C). Consistent with NARA’s past administration of this statute, as well as our interpretation of a similar provision under the Privacy Act, we informally advised NARA that only a committee chairman may request presidential records under section 2205(2)(C), unless the committee has specifically delegated that authority to another member. I. The Constitution vests “[a]ll legislative Powers” in “a Congress of the United States, which shall consist of a Senate and House of Representatives.” U.S. Const. art. I, § 1. The Supreme Court has recognized that one of those legislative powers is the implicit authority of each House of Congress to gather information in aid of its legislative function. See 2 Requests by Individual Members of Congress for Executive Branch Information McGrain v. Daugherty, 273 U.S. 135, 174 (1927). As the Court has explained, “[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true— recourse must be had to others who do possess it.” Id. at 175. Because “mere requests for such information often are unavailing, and . . . information which is volunteered is not always accurate or complete,” though, “some means of compulsion are essential to obtain what [information] is needed.” Id.; see also Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504 (1975) (“[I]ssuance of subpoenas . . . has long been held to be a legitimate use by Congress of its power to investigate.”); Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act, 10 Op. O.L.C. 68, 81–82 (1986) (“Response to Congressional Requests”). For purposes of this memorandum, we refer to each House’s formal “power of inquiry . . . with process to enforce it,” McGrain, 273 U.S. at 174, as that House’s “oversight” authority. Each house may exercise its oversight authority directly—for example, by passing a resolution of inquiry seeking information from the Executive Branch. See 4 Lewis Deschler, Deschler’s Precedents of the United States House of Representatives ch. 15, § 2, at 2304–23 (1994) (describing the practice of resolutions of inquiry and providing examples); Floyd M. Riddick & Alan S. Frumin, Riddick’s Senate Procedure 882 (1992) (“The Senate itself could investigate or hear witnesses as it has on rare occasions[.]”). In modern practice, however, each House typically employs its oversight authority “through delegations of authority to its committees, which act either through requests by the committee chairman, speaking on behalf of the committee, or through some other action by the committee itself.” Application of Privacy Act Congressional-Disclosure Exception to Disclosures to Ranking Minority Members, 25 Op. O.L.C. 289, 289 (2001) (“Application of Privacy Act”); see also Alissa Dolan et al., Cong. Research Serv., Congressional Oversight Manual 65 (Dec. 19, 2014). “The theory of a committee inquiry is that the committee members are serving as the representatives of the parent assembly in collecting information for a legislative purpose” and, in such circumstances, “committees and subcommittees, sometimes one Congressman,” are authorized to 3 43 Op. O.L.C. __ (Feb. 13, 2019) exercise the parent assembly’s authority. Watkins v. United States, 354 U.S. 178, 200–01 (1957). The Senate authorizes committees, “including any subcommittee of any such committee,” to hold hearings, subpoena witnesses, and require the production of “correspondence, books, papers, and documents,” Senate Rule XXVI(1), while the House authorizes “a committee or subcommittee” to exercise similar authority, House Rule XI.2(m)(1). In turn, a committee’s chairman generally may act on behalf of the committee, at least in the absence of a contrary vote of the majority of its members. See Letter for David S. Ferriero, Archivist of the United States, National Archives and Records Administration, from Chuck Grassley, Chairman, U.S. Senate Committee on the Judiciary at 2 (July 30, 2018); see, e.g., House Rule XI.2(m)(3) (providing that the full committee determines the “rules” and “limitations” for a delegation to a chair). Although the procedures for these compulsory processes vary based on the issuing committee or subcommittee, they all derive their authority from a delegation by the relevant House as a whole. See, e.g., Response to Congressional Requests, 10 Op. O.L.C. at 82 (“exercise of subpoena power must be authorized by the relevant House” (citing Reed v. County Comm’rs, 277 U.S. 376, 389 (1928), and McGrain, 273 U.S. at 158)); Congressional Oversight Manual at 24 (“Committees of Congress only have the power to inquire into matters within the scope of the authority delegated to them by their parent body.”). By contrast, individual members of Congress who are not serving as the chairman of a committee, including ranking minority members, “generally do not act on behalf of congressional committees.” Application of Privacy Act, 25 Op. O.L.C. at 289; see also id. at 289–90 (concluding that “the Privacy Act’s congressional-disclosure exception does not generally apply to disclosures to ranking minority members,” because ranking minority members “are not authorized to make committee requests, act as the official recipient of information for a committee, or otherwise act on behalf of a committee”). Under existing congressional rules, those members have not been delegated the authority to institute official committee investigations, hold hearings, or issue subpoenas. See Congressional Oversight Manual at 65. For example, the Rules of the House state that a subpoena generally “may be authorized and issued . . . only when authorized by the committee or subcommittee, a majority being present,” except that the committee may delegate subpoena power to a chairman. House 4 Requests by Individual Members of Congress for Executive Branch Information Rule XI.2(m)(3)(A)(i); see also Response to Congressional Requests, 10 Op. O.L.C. at 82 (“The rules of each [House] committee flesh out somewhat the requirements for issuance of a subpoena, specifying in particular if, or under what circumstances, the chairman of the full committee may issue a subpoena without a vote of the committee.”); Michael L. Koempel, Cong. Research Serv., R44247, A Survey of House and Senate Committee Rules on Subpoenas 4–10 (Jan. 29, 2018) (summarizing House rules). The Standing Rules of the Senate delegate to each committee responsibility to establish subpoena procedures, Senate Rule XXVI(2), and while some of those committees delegate subpoena authority to a chairman, none authorizes an individual member who is not a chairman to issue a subpoena unilaterally. See A Survey of House and Senate Committee Rules on Subpoenas at 11–16 (summarizing Senate rules). Federal courts have recognized that “no Senator and no Representative, is free on . . . his own to conduct investigations” without congressional authorization. Gojack v. United States, 384 U.S. 702, 716 (1966); see Exxon Corp. v. FTC, 589 F.2d 582, 593 (D.C. Cir. 1978) (“[D]isclosure of information can only be compelled by authority of Congress, its committees or subcommittees, not solely by individual members; and only for investigations and congressional activities.”); Lee v. Kelley, 99 F.R.D. 340, 342 n.2 (D.D.C. 1983) (denying Senator leave to intervene to request access to sealed materials on the grounds that the Senator “appears as an individual Senator, without Senate authorization, in what is undeniably an investigatory role”), aff’d sub nom. S. Christian Leadership Conf. v. Kelley, 747 F.2d 777 (D.C. Cir. 1984). As the Congressional Research Service has summarized, individual members of Congress not acting pursuant to delegated oversight authority are entitled only to “the voluntary cooperation of agency officials or private persons.” Congressional Oversight Manual at 65 (emphasis added). II. The distinction between Congress’s constitutionally based oversight authority and other congressional requests for information informs the Executive Branch’s obligations and practices when responding to such requests. When a committee, subcommittee, or chairman exercising delegated oversight authority asks for information from the Executive Branch, that request triggers the “implicit constitutional mandate to seek 5 43 Op. O.L.C. __ (Feb. 13, 2019) optimal accommodation . . . of the needs of the conflicting branches.” United States v. Am. Tel. & Tel. (“AT&T ”), 567 F.2d 121, 127 (D.C. Cir. 1977); see also id. at 130–31 (describing the “[n]egotiation between the two branches” as “a dynamic process affirmatively furthering the constitutional scheme”); Assertion of Executive Privilege in Response to a Congressional Subpoena, 5 Op. O.L.C. 27, 31 (1981) (“The accommodation required . . . is an obligation of each branch to make a principled effort to acknowledge, and if possible to meet, the legitimate needs of the other branch.”). Such requests are enforceable by the issuance of a subpoena and the potential for contempt-of-Congress proceedings. See McGrain, 273 U.S. at 174; 2 U.S.C. §§ 192, 194; see also Senate Rule XXVI(1); House Rule XI.2(m)(1). Regardless of whether the chairman or committee has served a subpoena, the Executive Branch will work to accommodate the committee’s legitimate oversight needs, because a request for information is itself a valid exercise of Congress’s oversight authority. The Executive Branch need not, and rarely does, insist upon the service of a subpoena or other compulsory process. Upon receipt of any request made by a committee, the Executive Branch’s longstanding policy has been to engage in the accommodation process by supplying the requested information “to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.” Memorandum for the Heads of Executive Departments and Agencies from Ronald Reagan, Re: Procedures Governing Responses to Congressional Requests for Information (Nov. 4, 1982). In contrast with a committee request, a letter or inquiry from an individual member or members of Congress is not made “pursuant to Congress’s constitutional authority to conduct oversight and investigations.” Congressional Oversight Manual at 56. As a result, while the Executive Branch often will respond to and cooperate with such a request, the request differs from an oversight request and does not trigger the “implicit constitutional mandate to seek optimal accommodation” that a request from a committee or chairman exercising Congress’s delegated oversight authority would trigger. AT&T, 567 F.2d at 127. These distinctions between requests for information made by a chairman or committee and requests made by individual members of Congress do not mean that individual members have no need for information from Executive Branch officials, or that Executive Branch officials should 6 Requests by Individual Members of Congress for Executive Branch Information disregard their requests. “Senators” and “Representatives” compose Congress as an institution, U.S. Const. art. I, §§ 1–3, and each member of Congress “participates in the law-making process” and “has a voice and a vote in that process.” Murphy v. Dep’t of the Army, 613 F.2d 1151, 1157 (D.C. Cir. 1979). Individual members, even those who are not chairmen of committees that have been delegated the oversight authority of a House of Congress, thus may “request . . . information from the executive agencies” about Executive Branch programs or activities—whether for legislation, constituent service, committee activities, or other purposes arising from members’ legislative “responsibilities” (such as Senators’ role in providing advice and consent for presidential appointments). Id. The Executive Branch has historically exercised discretion in determining whether and how to respond to requests for information from individual members of Congress. Individual members often have legitimate interests in seeking information from Executive Branch officials, and providing this information can aid individual members in carrying out their legislative responsibilities. When individual members are requesting information in their official capacity on their own behalf, and not acting on behalf of a body of Congress, an Executive Branch policy of providing good-faith responses to their requests exhibits a proper respect for members of a coordinate branch of the government. Departments and agencies, therefore, appropriately give due weight and sympathetic consideration to requests for information from individual members of Congress.* * In response to a letter from Senator Grassley expressing concerns with Oversight by Individual Members, the White House Director of Legislative Affairs issued a policy statement regarding requests from individual members on July 20, 2017. That statement provides, consistent with our conclusion here, that [t]he Administration’s policy is to respect the rights of all individual Members, regardless of party affiliation, to request information about Executive Branch policies and programs. The Administration will use its best efforts to be as timely and responsive as possible in answering such requests consistent with the need to prioritize requests from congressional Committees, with applicable resource constraints, and with any legitimate confidentiality or other institutional interest of the Executive Branch. Moreover, this policy will also apply to other matters on which individual Members may have an interest, whether it be considering possible legislation, evaluating nominees for confirmation, or providing service to constituents. Letter for Charles E. Grassley, Chairman, U.S. Senate Committee on the Judiciary, from Marc Short, Director of Legislative Affairs, The White House at 2 (July 20, 2017). 7 43 Op. O.L.C. __ (Feb. 13, 2019) In doing so, the Executive Branch may—and often does—provide information to individual members that is more than what is required under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. FOIA generally requires only that a department or agency release certain records in its custody. It does not require the department or agency to explain existing policies or to create documents that do not already exist. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980) (FOIA “does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained”). Yet the Executive Branch often responds to requests by members of Congress with correspondence that answers substantive questions, supplies a reasoned justification for existing policy, or explains why the Executive Branch’s established confidentiality interests preclude it from providing requested information. Such discretionary responses also furnish the department or agency with an opportunity to correct misperceptions or inaccurate factual statements that may be the basis for a request. By the same token, departments and agencies often prioritize their responses to the members’ requests in a manner that differs from ordinary FOIA requests submitted by members of the general public. Although departments and agencies will generally respond to requests from individual members of Congress, we recognize that they may decline to provide information to individual members when doing so would, for example, be overly burdensome; would inhibit the Executive’s responsibility to protect information that is privileged, confidential, or otherwise protected by law; or would interfere with the ability to respond in a timely manner to requests for information submitted pursuant to Congress’s oversight authority. Our treatment of requests for information from individual members of Congress is consistent with the D.C. Circuit’s decision in Murphy v. Department of the Army. Murphy held that memoranda withheld from disclosure in response to a FOIA request did not lose their statutorily exempt character as a result of disclosure to an individual member of Congress. In reaching this holding, the court pointed to then-5 U.S.C. § 552(c), which provided that FOIA “is not authority to withhold information from Congress.” 613 F.2d at 1155. The court reasoned that, “to the extent that Congress has reserved to itself in section 552(c) the right to receive information not available to the general public, and actually does receive such information pursuant to that section . . . , no waiver occurs of 8 Requests by Individual Members of Congress for Executive Branch Information the privileges and exemptions which are available to the executive branch under the FOIA with respect to the public at large.” Id. at 1156. The court found “no basis in the statute or in public policy for distinguishing for FOIA purposes between a congressional committee and a single Member acting in an official capacity,” on the grounds that “[a]ll Members have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information.” Id. at 1157. Murphy’s holding—that, in light of section 552(c), disclosure of materials to an individual member of Congress does not waive the FOIA exemptions that are available for requests from the public—does not erode the legal distinction between requests for information made by a committee (pursuant to Congress’s delegated oversight authority) and requests made by individual members of Congress. Murphy involved the statutory meaning of the word “Congress” “for FOIA [exemption] purposes,” which the court read to include individual members of Congress. Id.; see id. at 1158 (“What is at issue is the construction to be given to [section 552(c)] which safeguards congressional access to executive information notwithstanding the FOIA exemptions and the relationship of that provision to the question of when confidentiality is waived or destroyed by disclosure to a third party.”). To be sure, Murphy recognized the significant role that individual members play in congressional processes as providing support for reading “Congress” to include individual members. But the court’s point was that FOIA was not designed to stymie the flow of information between Executive Branch agencies and individual members by subjecting those materials to a waiver of privilege. That holding is entirely consistent with the view that there is a distinction between a committee request, which is an exercise of Congress’s delegated oversight authority, and a request made by an individual member. This understanding of Murphy is supported by an opinion by Judge Wald concurring in part and dissenting in part in a D.C. Circuit decision issued a few months after Murphy. See FTC v. Owens-Corning Fiberglas Corp., 626 F.2d 966, 975–79 (1980). There, Judge Wald (who formerly served as Assistant Attorney General for the Office of Legislative Affairs) emphasized that only a “formal” congressional request, such as a letter or subpoena from a committee, would qualify for an exception to a statutory prohibition on the disclosure of trade-secret information. Two pre-Murphy D.C. Circuit cases had held that the Federal Trade Commission’s disclo9 43 Op. O.L.C. __ (Feb. 13, 2019) sure of trade secret information to congressional committees was “not a public disclosure forbidden by” the Federal Trade Commission Act (“FTC Act”). Id. at 970 (majority opinion) (citing Exxon, 589 F.2d at 589, and Ashland Oil, Inc. v. FTC, 548 F.2d 977, 979 (D.C. Cir. 1976)). OwensCorning also concerned disclosure in response to a “formal request” from a committee, and the majority opinion relied on those cases to support its conclusion that the disclosure at issue was permissible under the FTC Act. See id. at 970, 974. However, a passing reference in the opinion to the recently decided Murphy, see id. at 974 & n.16, elicited a strong dissent from Judge Wald: The majority opinion’s footnote 16, suggesting that a single Congressman’s request for confidential information protected by [the FTC Act], even though the request is unauthorized by any committee or subcommittee of Congress, may stand on the same footing as a duly authorized committee or subcommittee request, is especially troubling. . . . I cannot agree with the majority’s citation of [Murphy] to support their position. . . . Duly authorized Congressional requests were judicially recognized as a narrow exception [under the FTC Act] in Exxon; therefore, it is doubly important to insure that these requests are authorized ones. The majority too casually dismisses Exxon in this regard. No Member of Congress, acting on his own, has yet been judicially declared to have access rights to subpoenaed trade secret material for his own individually-defined legislative purposes, no matter how legitimate his interest. To suggest that Murphy may expand Exxon’s limited access [for committees] to cover any Member acting individually is to seriously dilute the protections of [the FTC Act], and even to undermine the duly constituted authority and processes of Congress. The Legislative branch operates in the sensitive area of trade secret disclosure with its coordinate branch, the Executive, through the structure and delegated powers of Congressional committees and subcommittees. Only if the Executive and the courts honor that structure will the Legislature itself, as well as agencies, be able to assure subpoenaed parties that their trade secret material is not subject to indiscriminate 10 Requests by Individual Members of Congress for Executive Branch Information disclosure to any or all of the 535 Members of Congress with diverse political and legislative interests. Id. at 978–79 (Wald, J., concurring in part and dissenting in part). Our consideration of congressional access to Executive Branch privileged information raises many of the concerns addressed by Judge Wald in her consideration of congressional access to statutorily protected trade secret information. Her rationale for distinguishing between requests from committees and individual members applies as well in the context of Congress’s constitutional oversight authority as it does in the context of congressional requests under the FTC Act. Extending Murphy outside its FOIA context to apply to individual-member requests for information protected by executive privilege would intrude upon a comparably “sensitive area” in which the Executive Branch has recognized that Congress operates “through the structure and delegated powers of Congressional committees and subcommittees.” Id. at 979. Giving the same access rights to individual members would also “seriously dilute” the protections that the accommodation process provides for the Executive Branch’s privileged information and “undermine the duly constituted authority and processes of Congress.” Id. at 978–79. To say that the Executive Branch should provide respectful consideration to a request from a member of Congress is not to say that each and every member may be viewed as exercising the oversight responsibilities that the Constitution entrusts collectively to each House of Congress. III. We recently confronted a similar issue in advising NARA about the rights of individual Senators who were seeking records under the PRA related to the nomination of then-Judge Kavanaugh to the Supreme Court. In July and August 2018, we informally advised NARA that only a congressional committee or its chairman has authority to request presidential records under the PRA, unless the committee specifically delegates that authority to another member. The PRA restricts access to presidential records after they are accessioned to NARA at the end of a President’s tenure in office. See 44 U.S.C. §§ 2203(f ), 2204. The PRA includes various exceptions to its restrictions on access, one of which provides that 11 43 Op. O.L.C. __ (Feb. 13, 2019) subject to any rights, defenses, or privileges which the United States or any agency or person may invoke, Presidential records shall be made available . . . to either House of Congress, or, to the extent of matter within its jurisdiction, to any committee or subcommittee thereof if such records contain information that is needed for the conduct of its business and that is not otherwise available. Id. § 2205(2)(C). The congressional exception provides that, under appropriate circumstances, NARA may provide access to nonpublic presidential records in response to a request from either House of Congress or any committee or subcommittee thereof. Consistent with Application of Privacy Act, 25 Op. O.L.C. 289, we advised NARA that no individual member of a congressional committee other than its chairman is authorized to speak for or otherwise represent the committee for purposes of the PRA’s congressional exception, absent an express delegation of authority from the committee to that member. The relevant PRA language in section 2205(2)(C) is identical to the Privacy Act language in 5 U.S.C. § 552a(b)(9), which we considered in Application of Privacy Act. In that opinion, we concluded that this language “prohibits the disclosure of Privacy Act-protected information to [a] ranking minority member,” absent an express authorization from the committee. 25 Op. O.L.C. at 289. We explained that “[e]xcept where the Senate or House exercises its investigative and oversight authority directly, . . . each House of Congress exercises its investigative and oversight authority through delegations of authority to its committees,” which in turn often delegate that authority to chairmen. Id. In contrast, “[a]s a general matter, ranking minority members are not authorized to make committee requests, act as the official recipient of information for a committee, or otherwise act on behalf of a committee.” Id.; see supra pp. 4–5. Accordingly, “although the congressional-disclosure exception to the Privacy Act disclosure prohibition is available for disclosures to either House of Congress or to a committee of Congress,” we concluded that a “disclosure of Privacy Act information solely to a ranking minority member is not a disclosure to the committee” because “ranking minority members generally do not act on behalf of congressional committees.” Application of Privacy Act, 25 Op. O.L.C. at 289–90. “[T]he congressionaldisclosure exception is therefore unavailable.” Id. 12 Requests by Individual Members of Congress for Executive Branch Information So, too, under the PRA, no individual member of a committee other than its chairman may act on behalf of a committee, absent a specific delegation of authority to that effect, and thus disclosure to the individual member does not qualify as disclosure to the committee under the statutory exception to restrictions on access. 44 U.S.C. § 2205(2)(C). Nothing in the PRA suggests that Congress intended those terms to function differently in the PRA than in the Privacy Act. On the contrary, Congress used the same language in both statutes, enacted only a few years apart, to establish a similar congressional exception to prohibitions on disclosure. These similarities are “strong indication[s] that the two statutes should be interpreted pari passu.” Northcross v. Bd. of Educ., 412 U.S. 427, 428 (1973) (per curiam); see also Smith v. City of Jackson, 544 U.S. 228, 233 (2005) (plurality opinion) (“[W]hen Congress uses the same language in two statutes having similar purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes.”). This interpretation of section 2205(2)(C) is consistent with NARA’s longstanding administration of the statute. See Application of Privacy Act, 25 Op. O.L.C. at 290 (noting that the conclusion that the Privacy Act prohibits disclosure to ranking minority members “follows the longstanding Executive Branch practice on this question”). NARA informed us that it has always understood the PRA to give authority to request records only to the chairman of a committee or the committee itself, and that NARA has relied on Application of Privacy Act in concluding that ranking minority members could not make requests under section 2205(2)(C). For example, NARA declined to process requests from the Ranking Members of the Senate Judiciary Committee in connection with the nomination of Eric Holder as Attorney General and again with respect to the nomination of Elena Kagan to the Supreme Court. NARA’s position with respect to the Kavanaugh nomination therefore was consistent with prior Executive Branch practice regarding section 2205(2)(C). IV. In reviewing requests from Congress, the Executive Branch’s longstanding policy has been to engage in the established process for working to accommodate congressional requests for information only when those requests come from a committee, subcommittee, or chairman acting pur13 43 Op. O.L.C. __ (Feb. 13, 2019) suant to oversight authority delegated from a House of Congress. Departments and agencies, however, may appropriately give due weight and sympathetic consideration to requests for information from individual members of Congress not delegated such authority. STEVEN A. ENGEL Assistant Attorney General Office of Legal Counsel 14

Write a legal research memo on the following topic.

Disclosure of Conflicts of Interest of Members of FDA Advisory Panels Special government employees who serve as members of a Food and Drug Administration advisory panel and who seek waivers of conflicts of interest must publicly disclose any conflicts of interest they may have that relates to the work to be undertaken by the panel. The FDA may not waive a panel member’s conflict until the panel member makes the public disclosure. The FDA has considerable discretion to determine how detailed the panel member’s disclosure must be, so long as such disclosure is adequate to inform the public of the nature and magnitude of the conflict. October 5, 2001 MEMORANDUM OPINION FOR THE CHIEF COUNSEL FOOD AND DRUG ADMINISTRATION You have asked for our opinion whether the Food and Drug Administration (“FDA”), in granting conflict of interest waivers to special government employees serving as members of FDA advisory panels on new drugs and biological products (“drug advisory panels”), must require panel members to disclose publicly their conflicts of interest. You have further informed us that the FDA’s current practice with respect to waivers of such conflicts of interest is to disclose the fact that a particular panel member has been granted a waiver of a conflict, but not to identify the nature of the conflict or provide any further details. See Memorandum for Daniel Troy, Chief Counsel, from Matthew Eckel, Associate Chief Counsel, Food and Drug Administration, Re: Request for Advice from Office of Legal Counsel, Department of Justice Concerning Disclosure of Advisory Committee Member Conflicts of Interest (Sept. 17, 2001) (“FDA Memorandum”). As discussed below, we conclude that special government employees who serve as members of an FDA drug advisory panel and who seek waivers of conflicts of interest must publicly disclose any conflicts of interest they may have that relate to the work to be undertaken by the panel. 1 The FDA may not waive a panel member’s conflict until the panel member makes the public disclosure. The FDA has considerable discretion to determine how detailed the panel member’s disclosure must be, so long as such disclosure is adequate to inform the public of the nature and magnitude of the conflict. 1 We have not been asked to, and do not, opine on whether a drug advisory panel member must publicly disclose a conflict of interest that the member may have with a matter to be undertaken by the panel if the member, instead of seeking a waiver, chooses not to take part at all in the matter. 220 227-329 VOL_25_PROOF.pdf 230 10/22/12 11:10 AM Disclosure of Conflicts of Interest of Members of FDA Advisory Panels I. Panel Members Must Publicly Disclose Their Conflicts of Interest Section 355(n) of title 21 provides that “[f]or the purpose of providing expert scientific advice and recommendations to the Secretary [of Health and Human Services] regarding a clinical investigation of a drug or the approval for marketing of a drug under section 355 of this title [(new drugs)] or section 262 of Title 42 [(biological products)], the Secretary shall establish panels of experts or use panels of experts established before November 21, 1997, or both.” 21 U.S.C. § 355(n)(1) (Supp. III 1997). Within 90 days after a drug advisory panel makes its recommendations, the FDA must review the panel’s conclusions and recommendations and notify the affected persons of any final decision. Id. § 355(n)(8). Section 355(n)(4) sets out specific conflict of interest requirements for members of drug advisory panels: Each member of a panel shall publicly disclose all conflicts of interest that member may have with the work to be undertaken by the panel. No member of a panel may vote on any matter where the member or the immediate family of such member could gain financially from the advice given to the Secretary. The Secretary may grant a waiver of any conflict of interest requirement upon public disclosure of such conflict of interest if such waiver is necessary to afford the panel essential expertise, except that the Secretary may not grant a waiver for a member of a panel when the member’s own scientific work is involved. Id. § 355(n)(4). Thus, the plain terms of section 355(n)(4) require that each member of a drug advisory panel “publicly disclose all conflicts of interest . . . with the work to be undertaken by the panel” and that the Secretary not waive any such conflicts before public disclosure has occurred. You have asked, however, whether various other statutes relating to conflict of interest requirements for government employees should be read to negate or limit the obligation that section 355(n)(4) imposes. Pursuant to section 107(a)(1) of the Ethics in Government Act of 1978, as amended, 5 U.S.C. app. §§ 101-111 (2000) (“EGA”), the FDA requires each member of a drug advisory panel to file a confidential financial disclosure report. See FDA Memorandum at 2. Section 107(a)(2) in turn provides that “[a]ny information required to be provided by an individual under this subsection shall be confidential and shall not be disclosed to the public.” 5 U.S.C. app. § 107(a)(2). You further note that the Office of Government Ethics (“OGE”) has advised that even with the consent of the individual filer, the agency is barred by section 107(a)(2) from publicly releasing information on the filer’s financial disclosure report. See Privacy of SF 450 Financial Disclosure Information and Waivers Issued to Advisory Committee Members under 18 U.S.C. § 208(b)(3), Informal 221 227-329 VOL_25_PROOF.pdf 231 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 Advisory Op. 93x34, at 4 (Nov. 16, 1993), available at http://www.oge.gov/OGEAdvisories/Legal-Advisories/Legal-Advisories/ (last visited May 24, 2012) (“OGE Letter”). 2 You therefore raise the question how section 107(a)(2) is to be read together with the plain language of section 355(n)(4). We believe that section 107(a)(2) has no impact on how section 355(n)(4) should be read. Section 355(n)(4) imposes a disclosure obligation not on the FDA, but only on individuals who choose to be members of a drug advisory panel. The OGE Letter provides only that the filer’s consent does not enable the agency to release the filer’s financial disclosure report. The OGE Letter does not remotely suggest that section 107(a)(2) bars the filer from publicly releasing his own financial disclosure report. (Indeed, any such bar, apart from having no evident purpose, would likely violate the First Amendment.) We therefore see no conflict between section 107(a)(2) and section 355(n)(4). Because section 107(a)(2) and section 355(n)(4) do not conflict, FDA regulations that would implement section 355(n)(4)’s command that drug advisory panel members publicly disclose their conflicts of interest would likewise not violate section 107(a)(2). We note further that section 355(n)(4) could reasonably be read to contemplate that panel members use FDA resources to make public disclosure of their conflicts; in the event that the FDA so reads section 355(n)(4), we believe that such an FDA role in facilitating panel members’ disclosure would not violate section 107(a)(2). You present an argument that the federal criminal conflict of interest statute, 18 U.S.C. § 208 (1994), permits an agency to grant a special government employee an exemption from its prohibitions in certain circumstances, see id. § 208(b)(3); that an agency, in providing the public a copy of any determination granting such an exemption, may withhold from disclosure any information that would be exempt from disclosure under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2000), see 18 U.S.C. § 208(d)(1); that FOIA exempts from its mandatory disclosure requirements any information specifically exempted from disclosure by another statute, see 5 U.S.C. § 552(b)(3); and that the FDA, in granting a drug 2 The OGE Letter further advises that “[t]he agency must observe the [section 107(a)(2)] constraint against release of the information on the form, even if the individual filer has discussed the same or similar information in another forum or the nature of certain of the filer’s holdings may be known in his or her industry or community.” Id. at 5. Read broadly, this advice might mean that an agency may never disclose information if that information happens to be contained in a financial disclosure report, even if the agency relied on an independent source to obtain the information. Under such a broad reading, an agency would be barred, for example, from disclosing a filer’s business address if that business address were contained in the filer’s financial disclosure report, even if the agency relied on other records to determine the filer’s business address (or even if that business address were in the phone book). Alternatively, the OGE advice may mean only that under section 107(a)(2) an agency may not release a financial disclosure report or information obtained from that report but may still release information from independent sources, even if that information is also contained in the financial disclosure report. We have not been asked to, and need not, decide which is the better reading of section 107(a)(2). 222 227-329 VOL_25_PROOF.pdf 232 10/22/12 11:10 AM Disclosure of Conflicts of Interest of Members of FDA Advisory Panels advisory panel member an exemption under 18 U.S.C. § 208(b)(3) from the application of the criminal conflict of interest prohibitions, is therefore authorized not to disclose information exempted from disclosure under section 107(a)(2) of the EGA. See FDA Memorandum at 3-7. We see no need to address the merits of this argument, for we do not believe that, even if correct, it is in any respect in tension with the plain language of section 355(n)(4). Just as we conclude above that a bar on the FDA’s disclosure of a drug advisory panel member’s financial disclosure report filed pursuant to the EGA is entirely consistent with section 355(n)(4)’s requirement that the member publicly disclose all conflicts of interest before obtaining a waiver, so we conclude here that the FDA’s permissive authority not to disclose the member’s report would be consistent with that same requirement. We therefore conclude that none of the other statutory provisions you raise negates or limits the application of section 355(n)(4). II. The FDA Has Discretion to Determine the Scope of the Required Disclosure You have also requested our opinion concerning the scope of any disclosure required under section 355(n)(4)—in particular, the amount of background financial information a panel member must disclose with respect to a particular conflict of interest. See FDA Memorandum at 9, 12. The language of the statute provides little guidance in interpreting the phrase “publicly disclose all conflicts of interest,” and thus appears to leave the agency some discretion in determining how best to implement the statutory mandate. Indeed, just as the statute explicitly gives the Secretary discretion to decide when the need for an individual’s expertise justifies waiving a conflict of interest, we believe that it implicitly permits the Secretary, in developing administrative guidelines for disclosure, to consider the competing public interests at stake. In enacting section 355(n)(4), Congress clearly sought to promote the strong public interest in knowing whether individuals involved in the approval of new drugs and biological products are potentially biased by conflicting financial interests. Accordingly, any regulations implementing section 355(n)(4) must require an advisory panel member, before receiving a waiver of any conflict of interest, to provide meaningful public disclosure that would adequately enable a reasonable person to understand the nature of the conflict and the degree to which it could be expected to influence the recommendations the member would make. Mere identification of the conflicting interest may be insufficient to meet this standard; it will often be necessary also to provide information concerning the magnitude of a particular financial interest (e.g., whether it consists of a few shares of stock or a controlling interest in a company). On the other hand, Congress surely did not intend that the disclosure requirement should be so 223 227-329 VOL_25_PROOF.pdf 233 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 intrusive or onerous as to make many individuals unwilling to serve on advisory panels, as such a result would deprive the FDA of the “essential expertise” Congress intended the advisory panels to provide. The FDA may therefore tailor the scope of the requirement so that it does not impose a greater burden than necessary to achieve the statute’s goal. M. EDWARD WHELAN III Principal Deputy Assistant Attorney General Office of Legal Counsel 224 227-329 VOL_25_PROOF.pdf 234 10/22/12 11:10 AM

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Application of the Federal Bribery Statute to Civilian Aides to the Secretary of the Army A Civilian Aide to the Secretary of the Army is a public official who is barred by 18 U.S.C. § 201(c) from receiving anything of value because of an official action taken. July 12, 1989 M e m e o r a n d u m O p in io n for the D epartm en t of the G e n er a l C ounsel A rmy This letter responds to your Office’s request for an opinion on whether the federal bribery statute, 18 U.S.C. § 201(c), applies when a Civilian Aide to the Secretary of the Army receives an offer for reimbursement of expenses incurred in the discharge o f Civilian Aide duties.1 We agree, based on the statement o f facts in the Army Letter, that it was reasonable for the Army to conclude that the Civilian Aide should not accept the offer for reimbursement from the private, non-profit foun­ dation for these services. Although there may be instances in which the conduct o f a Civilian Aide could give rise to a prosecution under section 201(c), we do not believe that it would be useful or appropriate to spec­ ulate now regarding the legality o f future cases that may raise similar issues. Our reasons for these conclusions are set forth below. I. Background A Civilian Aide is a private citizen appointed by the Secretary o f the Army to represent the civilian community. Army Regulation 1-15, Civilian Aides to the Secretary of the Arm y. Civilian Aides serve without salary or other compensation by the federal government, although they may receive reimbursement for certain travel expenses. A private, non­ profit foundation offered to pay the expenses incurred by one o f these Civilian Aides in the discharge o f her official duties, including the cost o f any secretarial services needed in the future.2 Your Office advised the Civilian Aide to decline the offer because o f your concern that the con­ 1Letter for Mr Douglas W Kmiec, A cting Assistant Attorney General, Office o f Legal Counsel, from Darrell L. Peck, Acting General Counsel, Department o f the Army (July 8, 1988) ( “Army Letter”) 2Arm y Letter at 1. 202 tribution might be prohibited by 18 U.S.C. § 201(c). You have sought guid­ ance about what to do if this situation arises again. II. Analysis Section 201(c)(1)(B) o f the federal bribery statute subjects to criminal liability “ [w]hoever — otherwise than as provided by law for the proper discharge o f official duty — being a public official, ... directly or indirect­ ly ... accepts, or agrees to receive or accept anything o f value personally for or because o f any official act performed or to be performed by such official or person.” The requirements for criminal liability under this pro­ vision are three-fold: (1) the person must be a “public official”; (2) that official must accept or agree to receive anything o f value; and (3) the thing of value must be given for or because o f any official act by such official. A. Public official We believe that a Civilian Aide would be considered a “public official” under the statute. Section 201(a) defines a “public official,” in relevant part, as a “person acting for or on behalf o f the United States, or any department ... o f Government thereof ... in any official function, under or by authority o f any such department.” Civilian Aides act on behalf o f and by the authority o f the Department o f the Army. The Supreme Court has enforced a broad construction o f the “public official” provision, “agreeing with the Government” that section 201 is a comprehensive statute aimed at all who act on behalf o f the government. Dixson v. United States, 465 U.S. 482, 496 (1984). The Dixson court stated: To determine whether any particular individual falls within this category, the proper inquiry is not simply whether the person had signed a contract with the United States or agreed to serve as the Government’s agent, but rather whether the person occupies a position of public trust with official federal responsibilities. Persons who hold such positions are public officials within the meaning o f § 201 and liable for prosecution under the federal bribery statute. Id. In Dixson, the Court held that the term included “officers o f a private, nonprofit corporation administering and expending federal community development block grants” because, as administrators of the subgrant, they were responsible for a program that distributed federal funds according to federal guidelines. Id. at 497.3 As the Dixson court noted, °See also United Slates v Kirby, 587 F2d 876 (7th Cir. 1978) (grain inspector employed by private com ­ pany but licensed by USDA was public official); United States v Gallegos, 510 F Supp. 1112 (D N.M. Continued 203 since the original enactment o f the bribery law in 1853 Congress has enacted successive statutes using “broad jurisdictional language,” id. at 491, and in keeping with this intent, the courts have broadly interpreted the phrase “person acting for or on behalf o f the United States.” Id. at 492. Although Civilian Aides are not federal employees, Army Regulation 115, § 5(b), they perform numerous functions that would appear to meet the test o f “acting for or on behalf of the United States.” See, e.g., Army Regulation 1-15, § 4(d) (responsibility to provide “individual advice” to the Secretary o f the Army and others about public attitudes towards the Army, to develop programs to attain maximum understanding and coop­ eration between the civilian community and the Army, and to disseminate information to the public about the Army’s objectives); id. § 13 (travel as Civilian Aide paid for by government as official travel); id. § 10 (detailing Civilian Aides’ access to classified information); id. § 11 (same). This Office previously has considered the duties and responsibilities o f the Civilian Aides in determining whether such aides were subject to the Emoluments Clause o f the Constitution. In that opinion, we noted that the United States reposes great trust in the Aides, and relies upon them to perform various duties that further the national defense. These same attributes — the reposing of trust, the necessi­ ty o f undivided loyalty to the United States, the importance o f the task performed by those who hold the office, per­ sonalized selection and access to classified information — characterize the “office o f trust” for purposes o f the Emoluments Clause .... We have no difficulty concluding, therefore, that the position o f Civilian Aide to the Secretary o f the Army is an “Office o f Trust” under the United States for purpose o f the Emoluments Clause.4 In keeping with this view and consistent with the Dixson decision, we believe that Civilian Aides should be considered “public officials” for pur­ poses o f 18 U.S.C. § 201. 3(. continued) 1981) (em p loyee o f state government w h o worked under direct supervision o f federal official in admin­ istration o f federal program was public officia l), United States v. G riffin, 401 F. Supp 1222 (S D. Ind 1975), a ffd without opinion sub nom United States v Metro Management Corp., 541 F2d 284 (7th Cir 1976) (em p loyee o f a private company w h o acted as independent contractor for HUD was public o ffi­ cial); S. Rep N o 2213, 87th Cong., 2d Sess. 8 (1962) (term “include[s] officers and em ployees o f the three branches o f government, jurors, and other persons carrying on activities fo r or on behalf o f the Governm ent”). 4 Memorandum fo r James H. Thessin, Assistant Legal Adviser for Management, Department o f State, from John O. McGinnis, Deputy Assistant Attorney General, Office o f Legal Counsel, Re. Application of the Emoluments Clause to a Civilian A ide to the Secretary o f the A rm y (Aug. 29, 1988) (citations and footnotes om itted). 204 B. Thing of value The second requirement o f criminal liability is that the Civilian Aide receive “anything o f value.” This requirement appears not to have been frequently litigated. Based on existing case law, however, we believe that items such as the reimbursement expenses you describe for prior expens­ es incurred by the Civilian Aide and future secretarial services probably would meet the statute’s test. See, e.g., United States v. Biaggi, 853 F.2d 89 (2d Cir. 1988) (finding vacation expenses provided to Congressman to be a thing “o f value”), cert, denied, 489 U.S. 1052 (1989); United States v. Gorman, 807 F.2d 1299 (6th Cir. 1986) (finding future employment promised by a third party to be a thing “o f value”), cert, denied, 484 U.S. 815 (1987). C. Received fo r an official act The legislative history o f the 1962 formulation o f this provision, which has remained substantially unchanged, states that “ [t]he term ‘official act’ is defined to include any decision or action taken by a public official in his capacity as such.” S. Rep. No. 2213, 87th Cong., 2d Sess. 8 (1962). One court has held that the mere use by a public official o f the status o f his office is sufficient to warrant liability under the statute. See, e.g., United States v. Biaggi, 853 F.2d at 98 (noting that congressman’s “invocation o f his position and o f congressional interest in his intercession with others on behalf o f a constituent” is to be considered an official act). Absent par­ ticular facts, it is difficult to postulate the circumstances under which something o f value would be deemed to be given because o f an official act by a Civilian Aide.5However, given the apparent breadth o f the Biaggi court’s holding and our conclusion that Civilian Aides are public officials, we recommend that you caution the Civilian Aides to discuss with your Department any offer o f funds or other assistance that they receive from a third party. III. Conclusion We believe that a Civilian Aide is a public official who is barred by 18 U.S.C. § 201(c) from receiving anything o f value because o f an official action taken. Whether this Department would prosecute a case o f this type would depend upon the particular facts and circumstances. We reiterate that we believe your advice to the Civilian Aide in the cir­ cumstances you described was appropriate and consistent with the Army 5 For example, unless w e w ere to interview officials at the private foundation that made the offer to the Civilian Aide in your example, w e would not be able to judge whether the offer was made because o f longstanding fnendship with the particular Civilian Aide, because o f disinterested community spirit and pride in her success, or because o f a corrupt motive 205 Regulation’s direction that Civilian Aides “avoid any situation producing an actual or apparent conflict” o f interest between their private lives and their roles as Civilian Aides.6 Should this problem arise again, we invite you to consult with us or with the Public Integrity Section o f the Criminal Division. WILLIAM P. BARR Assistant Attorney General Office o f Legal Counsel “ Arm y Regulation 1-15, § 6(a) 206

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Authority of HUD’s Chief Financial Officer to Submit Final Reports on Violations of Appropriations Laws The Consolidated Appropriations Resolution for Fiscal Year 2003 requires the Chief Financial Officer of the Department of Housing and Urban Development to report to the President and Congress on violations by the agency of the Anti-Deficiency Act and other appropriations laws concerning expenditures, but the CFO must first submit his reports to the Secretary of HUD for review and approval. August 31, 2004 MEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT You have asked for our opinion concerning the proper interpretation of an appropriations statute that directs the Chief Financial Officer (“CFO”) of the Department of Housing and Urban Development (“HUD”) to submit final reports to the Secretary of HUD, the President, and Congress concerning violations of the Anti-Deficiency Act (“ADA”) and other statutes relating to HUD appropriations. In particular, you have inquired whether this legislation overrides language in the ADA that directs “the head of the agency” to report ADA violations to the President and Congress and, if so, whether the CFO may submit reports on ADA violations without first seeking the review and approval of HUD’s Secretary. We conclude that the appropriations statute at issue does require the CFO to report to the President and Congress on violations of the ADA and other applicable appropriations statutes, but that he must first submit his reports to the Secretary for review and approval. The ADA provides in relevant part that executive branch officials may not expend funds or enter into contracts that impose financial obligations on the United States without express congressional authorization in appropriations legislation. 31 U.S.C. § 1341(a)(1) (2000); see also id. §§ 1341–1342, 1349–1351, 1511–1519. Violations of the ADA—which enforces the Constitution’s directive that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,” U.S. Const. art. I, § 9, cl. 7—require “appropriate administrative discipline,” including possible reprimand, suspension without pay, or removal from office, and, if the violation is knowing and willful, may result in a fine or imprisonment. 31 U.S.C. §§ 1349(a), 1350. To ensure that the President and Congress are made aware of violations of the Act, Congress directed that “[i]f an officer or employee of an executive agency . . . violates section 1341(a) or 1342 of this title, the head of the agency . . . shall report immediately to the President and Congress all relevant facts and a statement of actions taken.” 31 U.S.C. § 1351. Under the ADA, therefore, the heads of the executive agencies bear responsibility for reporting violations of the ADA to the President and Congress. 248 Authority of HUD’s CFO to Submit Final Reports on Violations of Appropriations Laws In 2003, Congress established specific additional parameters for HUD’s reporting of violations of the ADA and other statutes authorizing obligation of HUD funds. In the Consolidated Appropriations Resolution for Fiscal Year 2003 (“FY 2003 Appropriations Act” or “2003 Act”), Congress subjected the appropriation of funds for administrative and other expenses of HUD’s CFO to the following conditions: Provided further, That, notwithstanding any other provision of law, hereafter, the Chief Financial Officer of the Department of Housing and Urban Development shall, in consultation with the Budget Officer, have sole authority to investigate potential or actual violations under the Anti-Deficiency Act (31 U.S.C. 1341 et seq.) and all other statutes and regulations related to the obligation and expenditure of funds made available in this, or any other Act; shall determine whether violations exist; and shall submit final reports on violations to the Secretary, the President, the Office of Management and Budget and the Congress in accordance with applicable statutes and Office of Management and Budget circulars. Pub. L. No. 108-7, 117 Stat. 11, 499 (2003) (emphasis added). The question at issue focuses, first, on the relation between the reporting requirements of the FY 2003 Appropriations Act and those of the ADA—in particular, whether the 2003 Act vests HUD’s CFO with authority, independent of the Secretary, to report ADA violations to the President and Congress. More generally, in addressing your question, we must consider the relation between the reporting authority of the CFO under the 2003 Act and the supervisory authority of the Secretary of HUD, and ultimately of the President as the head of the Executive Branch. The General Counsel of HUD has provided his view that the FY 2003 Appropriations Act does not nullify the ADA’s requirement that the “head of the agency” inform the President and Congress of any ADA violations, or that, at a minimum, the CFO’s reports must first be reviewed and approved by the Secretary. See Letter for Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, from Richard A. Hauser, General Counsel, U.S. Department of Housing and Urban Development (May 10, 2004). For the reasons set forth below, we conclude that the FY 2003 Appropriations Act does require the CFO to report to the President and Congress on violations of the ADA and other applicable appropriations statutes, but that the CFO’s reports are subject to prior review and approval by the Secretary or the President.1 1 We have not analyzed the question whether the reporting requirements set forth in the FY 2003 Appropriations Act are permanent requirements, but we are informed that HUD treats them as such. See E-mail for Steffen N. Johnson, Attorney-Adviser, Office of Legal Counsel, from Camille E. Acevedo, Associate General Counsel for Legislation and Regulations, Department of Housing and Urban Development (July 22, 2004). See also FY 2003 Appropriations Act, 117 Stat. at 499 (conditioning 249 Opinions of the Office of Legal Counsel in Volume 28 In the FY 2003 Appropriations Act, Congress directed the CFO to submit his reports “in accordance with applicable statutes and Office of Management and Budget circulars.” 117 Stat. at 499 (emphasis added). Among the “applicable statutes” must be the ADA, 31 U.S.C. § 1351, which, as discussed above, imposes on “the head of the agency,” rather than the CFO, the responsibility of reporting ADA violations to the President and Congress. Chief among the applicable OMB circulars is Circular A-11, which implements the requirements of the ADA for the Executive Branch and specifies that reports of ADA violations are to take the form of letters that shall be transmitted from the “agency head” to the President through the Director of OMB. OMB Circular No. A-11, § 145.7 (2004). OMB Circular A11 also directs the agency to “report identical letters to the Speaker of the House of Representatives and the President of the Senate,” and it specifies: “If the letters to Congress are identical to the letter to the President, include a statement to this effect in the letter to the President. If the letters to Congress are not identical to the letter to the President, you will submit a copy of the letter to Congress with your letter to the President.” Id. Thus, although the phrase “notwithstanding any other provision of law” in the 2003 Act would generally override other laws to the extent they interfere with the CFO’s exercise of his duties under the Act, that phrase cannot be read to override the terms of the ADA and OMB Circular A-11 entirely, because the requirement in the same provision that the CFO submit his final reports “in accordance with” applicable statutes and OMB circulars expressly preserves the procedures prescribed by the ADA and Circular A-11. See Williams v. Taylor, 529 U.S. 362, 364 (2000) (noting “the cardinal principle of statutory construction that courts must give effect, if possible, to every clause and word of a statute”). On the other hand, the ADA and OMB Circular A-11 have general application to the deficiency reports of all executive agencies, whereas the 2003 Act is specific to HUD. It is a usual rule of construction that the specific statutory provision will trump the general where they conflict or address the same concern. See Edmond v. United States, 520 U.S. 651, 657 (1997) (“Ordinarily, where a specific provision conflicts with a general one, the specific governs.”); Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) (“[I]t is a commonplace of statutory construction that the specific governs the general.”). It is unlikely, in our view, that Congress intended to create two redundant reporting obligations for ADA violations at HUD, one requiring a report to be submitted by the Secretary under the general terms of the ADA and one requiring a separate and independent report certain HUD appropriations on the requirement that the CFO “hereafter” submit final reports on violations of the ADA and other appropriations statutes to the Secretary and the President as well as to Congress); H.R. Rep. No. 108-235, at 77–78 (2003) (describing the changes made in the FY 2003 Appropriations Act as “permanent changes” and stating that they “permanently clarif[ied] responsibilities within the Department for investigating and reporting on potential and actual violations of all appropriations laws”). 250 Authority of HUD’s CFO to Submit Final Reports on Violations of Appropriations Laws to be submitted by the CFO under the specific terms of the 2003 Act. The language in the 2003 Act requiring the CFO to “submit final reports on violations” reinforces the view that only one report on a given violation is contemplated by the statute. Accordingly, we conclude that the HUD-specific terms of the 2003 Act were intended to assign to the CFO the duty of submitting reports to the President and Congress with respect to violations at HUD of the ADA and other applicable appropriations laws. But it does not necessarily follow that, simply because the 2003 Act charges the HUD CFO, rather than the Secretary of HUD, with the duty to submit final reports on violations, the HUD CFO has independent and unreviewable authority to prepare and submit final reports to the President and Congress without supervision by the Secretary. The language of the 2003 Act does not require such a reading, but rather is reasonably susceptible to the interpretation that the Secretary retains his ordinary supervisory authority over the CFO, as reflected in the statute spelling out the CFO’s authority and functions. See 31 U.S.C. § 902(a)(1) (2000) (the CFO shall “report directly to the head of the agency regarding financial management matters”). The need to avoid raising a significant constitutional problem requires that we adopt this interpretation—i.e., that the CFO’s duty to prepare and submit final reports under the 2003 Act, like his other duties, is subject to the ordinary supervision of the Secretary, and ultimately of the President through the Secretary. Accordingly, we conclude that although the CFO is assigned the responsibility for submitting reports to the President and Congress on all violations of appropriations laws at HUD, including the reports required by the ADA and OMB Circular A-11, the CFO’s exercise of that duty is subject to prior review and approval by the Secretary.2 This result follows from the rule of construction requiring that statutes be interpreted to avoid raising a significant constitutional problem, provided that doing so does not contravene the clear meaning of the statute. See Solid Waste Agency of N. Cook Cnty. v. Army Corps of Eng’rs, 531 U.S. 159, 173 (2001) (“[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.”) (quoting Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)). Here, we conclude that it is most reasonable to construe the FY 2003 Appropriations Act to require supervisory review by the Secretary of the CFO’s reports to the President and Congress because a contrary conclusion would 2 The legislative history does not elaborate on the relationship between the reporting requirements of the ADA and those of the FY 2003 Appropriations Act. The House Conference Report, which reflects the conferees’ adoption of the House version of the bill, references an earlier House report that discusses HUD’s past difficulties in complying with the ADA, but neither document discusses the issue of reporting in any depth. See H.R. Conf. Rep. No. 108-10, at 1427 (2003); H.R. Rep. No. 107-740, at 78–79 (2002). 251 Opinions of the Office of Legal Counsel in Volume 28 raise serious constitutional problems by interfering with the President’s exercise of his constitutional responsibility to supervise the unitary Executive Branch. The President’s ability to supervise and control the work of subordinate officers and employees of the Executive Branch, through his supervision of the principal officers of the executive agencies, is vital to the exercise of his constitutional duty faithfully to execute the laws. See U.S. Const. art. II, § 3 (providing that the President “shall take Care that the Laws be faithfully executed”). As we have elsewhere explained: The [judicial] decisions and the long practical history concerning the right of the President to protect his control over the Executive Branch are based on the fundamental principle that the President’s relationship with his subordinates must be free from certain types of interference from the coordinate branches of government in order to permit the President effectively to carry out his constitutionally assigned responsibilities. The executive power resides in the President, and he is obligated to “take care that the laws are faithfully executed.” In order to fulfill those responsibilities, the President must be able to rely upon the faithful service of subordinate officials. To the extent that Congress or the courts interfere with the President’s right to control or receive effective service from his subordinates within the Executive Branch, those other branches limit the ability of the President to perform his constitutional function. Constitutionality of Statute Requiring Executive Agency to Report Directly to Congress, 6 Op. O.L.C. 632, 638–39 (1982). Applying these general separation of powers principles, we have concluded that statutory “requirement[s] that subordinate officials within the Executive Branch submit reports directly to Congress, without any prior review by their superiors, would greatly impair the right of the President to exercise his constitutionally based right to control the Executive Branch,” and that statutory reporting requirements should generally be construed to avoid such a result. Id. at 633. Similarly, we have concluded that inspectors general in the Executive Branch may not be required to report information to Congress without review and approval by the head of the relevant agency, explaining that “[r]eports of problems encountered . . . may be required of the agencies in question, but . . . the statutory head of the agency . . . must reserve the power of supervision over the contents of those reports.” Inspector General Legislation, 1 Op. O.L.C. 16, 18 (1977). See also Authority of the Special Counsel of the Merit Systems Protection Board to Litigate and Submit Legislation to Congress, 8 Op. O.L.C. 30, 31 (1984) (“Congress may not grant [Special Counsel] the authority to submit legislative proposals directly to Congress without prior review and clearance by the President, or other appropriate authority, without raising serious separation of powers concerns”). Thus, it would 252 Authority of HUD’s CFO to Submit Final Reports on Violations of Appropriations Laws be constitutionally problematic to interpret the FY 2003 Appropriations Act to grant HUD’s CFO unreviewable authority to report to the President and Congress concerning potential violations of the ADA and other appropriations laws.3 Because the plain terms of the 2003 Act, including its directive that reports be submitted “in accordance with” applicable statutes and OMB circulars, do not require such an interpretation, it must be avoided. The better reading of the statute is that the reports prepared by the CFO must be subject to the review and approval of the Secretary before they are finalized and submitted by the CFO to the President and Congress.4 In summary, we conclude that the FY 2003 Appropriations Act does give the CFO of HUD authority to report to the President and Congress on violations by the agency of the ADA and other appropriations laws concerning expenditures, but that he must first submit his reports to the Secretary for review and approval. STEVEN G. BRADBURY Principal Deputy Assistant Attorney General Office of Legal Counsel 3 The same fundamental constitutional concern would be raised by a statute requiring a principal officer like the Secretary to make a report directly to Congress without prior review and approval by the President. We note that the ADA itself could be read to suggest such a requirement, though such a problematic interpretation of the ADA is not required by the plain language of the statute. Of course, the President, in his discretion, may permit the heads of departments to make simultaneous reports to Congress when they report ADA violations to the President through OMB, and that is the policy reflected in OMB Circular A-11. 4 Our conclusion is not altered by the fact that the FY 2003 Appropriations Act provides that the CFO “shall . . . prescribe the content, format and other requirements for the submission of final reports on violations; and . . . prescribe such additional policies and procedures as may be required for conducting investigations of, and administering, processing, and reporting on, potential and actual violations of the Anti-Deficiency Act and all other statutes and regulations governing the obligation and expenditure of funds made available in this or any other Act.” FY 2003 Appropriations Act, 117 Stat. at 500. These responsibilities of the CFO do not foreclose a substantive role for the Secretary in overseeing and directing the preparation of reports concerning violations of the appropriations laws. Although the CFO is charged in the first instance with preparing the content of his reports and establishing policies and procedures for reporting violations, we construe these responsibilities—like the CFO’s other duties—to be subject to oversight by the President and the Secretary, for the reasons discussed in the text. 253

Write a legal research memo on the following topic.

A Sntttimig P r e sid en ts Amemalbility to Imdidtmeimt and Crimimal PiroseOTttiom The in dictm ent o r cn m in al prosecution o f a sitting P resident would unconstitutionally underm ine the cap acity o f the executive branch to p erform its constitutionally assigned functions October 16, 2000 M em orandum O p in io n for t h e A tto rn ey G eneral In 1973, the Department concluded that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions. We have been asked to summarize and review the analysis provided in support of that conclusion, and to consider whether any subsequent developments in the law lead us today to reconsider and modify or disavow that determination.1 We believe that the conclu­ sion reached by the Department in 1973 still represents the best interpretation of the Constitution. The Department’s consideration of this issue in 1973 arose in two distinct legal contexts. First, the Office of Legal Counsel ( “ OLC” ) prepared a comprehensive memorandum in the fall of 1973 that analyzed whether all federal civil officers are immune from indictment or criminal prosecution while in office, and, if not, whether the President and Vice President in particular are immune from indictment or criminal prosecution while in office. See Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: A m en ability o f the P residen t, Vice P resid en t and o th er C ivil O fficers to F ederal C rim inal Prosecution w h ile in O ffice (Sept. 24, 1973) ( “ OLC M emo” ). The OLC memorandum con­ cluded that all federal civil officers except the President are subject to indictment and criminal prosecution while still in office; the President is uniquely immune from such process. Second, the Department addressed the question later that same year in connection with the grand jury investigation of then-Vice President Spiro Agnew. In response to a motion by the Vice President to enjoin grand jury pro­ ceedings against him, then-Solicitor General Robert Bork filed a brief arguing that, consistent with the Constitution, the Vice President could be subject to indict­ ment and criminal prosecution. S ee Memorandum for the United States Con­ cerning the Vice President’s Claim of Constitutional Immunity (filed Oct. 5, 1973), In re P ro ceed in g s o f th e G rand Jury Im paneled D ecem ber 5, 1972: 1 Since that time, the Department has touched on this and related questions in the course of resolving other ques­ tions, see, e g . The President — Interpretation o f 18 U.S C. §603 as Applicable to Activities in the White H ouse, 3 Op. O.L.C. 31, 32 (1979); B n ef for the United States as Amicus Curiae in Support of Petitioner at 15 n 8, Clinton v. Jones, 520 U.S. 681 (1997) (No. 95-1853), but it has not undertaken a comprehensive reexamination of the matter. W e note that various lawyers and legal scholars have recently espoused a range of views of the matter See, e .g , Impeachment o r Indictm ent• Is a Sitting President Subject to the Compulsory Criminal Process' Hearings Before the Subcomm. on the Constitution, Federalism, and Property Rights o f the Senate Comm, on the Judiciary, 105th Cong (1998) 222 A Sitting President's Amenability to Indictment and Criminal Prosecution A pplication o f Spiro T. Agnew, Vice P residen t o f the U nited States (D. Md. 1973) (No. 73-965) (“ SG B rie f’). In so arguing, however, Solicitor General Bork was careful to explain that the President, unlike the Vice President, could not constitu­ tionally be subject to such criminal process while in office. In this memorandum, we conclude that the determinations made by the Depart­ ment in 1973, both in the OLC memorandum and in the Solicitor General’s brief, remain sound and that subsequent developments in the law validate both the analytical framework applied and the conclusions reached at that time. In Part I, we describe in some detail the Department’s 1973 analysis and conclusions. In Part n , we examine more recent Supreme Court case law and conclude that it comports with the Department’s 1973 conclusions.2 I. A. The 1973 OLC memorandum comprehensively reviewed various arguments both for and against the recognition of a sitting President’s immunity from indictment and criminal prosecution. What follows is a synopsis of the memorandum’s anal­ ysis leading to its conclusion that the indictment or criminal prosecution of a sit­ ting President would be unconstitutional because it would impermissibly interfere with the President’s ability to carry out his constitutionally assigned functions and thus would be inconsistent with the constitutional structure. 1. The OLC memorandum began by considering whether the plain terms of the Impeachment Judgment Clause prohibit the institution of criminal proceedings against any officer subject to that Clause prior to that officer’s conviction upon impeachment. OLC Memo at 2. The memorandum concluded that the plain terms of the Clause do not impose such a general bar to indictment or criminal trial prior to impeachment and therefore do not, by themselves, preclude the criminal prosecution of a sitting President. Id. at 7.3 2 Implicit in the Department’s constitutional analysis o f this question in 1973 was the assumption that the President would oppose an attempt to subject him to indictment or prosecution. We proceed on the same assumption today and therefore do not inquire whether it would be constitutional to indict or try the President with his consent. The Department’s previous analysis also focused exclusively on federal rather than state prosecution of a sitting President. We proceed on this assumption as well, and thus we do not consider any additional constitutional concerns that may be implicated by state cnminal prosecution o f a sitting President. See Clinton v Jones, 520 U S 681, 691 (1997) (noting that a state cnminal prosecution o f a sitting President would raise “ federalism and comity” concerns rather than separation o f powers concerns) 3 In a memorandum prepared earlier this year, we concluded that neither the Impeachment Judgment Clause nor any other provision o f the Constitution precludes the prosecution o f a former President who, while still in office, was impeached by the House o f Representatives but acquitted by the Senate See Whether a Former President May Continued 223 Opinions o f the Office o f Legal Counsel in Volume 24 The Impeachment Judgment Clause provides: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust o r Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indict­ ment, Trial, Judgment and Punishment, according to Law. U.S. Const, art. I, § 3, cl. 7. The textual argument that the criminal prosecution o f a person subject to removal by impeachment may not precede conviction by the Senate arises from the reference to the “ Party convicted” being liable for “ Indictment, Trial, Judgment and Punishment.” This textual argument draws sup­ port from Alexander Hamilton’s discussion of this Clause in The F ederalist Nos. 65, 69, and 77, in which he explained that an offender would still be liable to criminal prosecution in the ordinary course of the law after removal by way of impeachment. OLC Memo at 2.4 The OLC memorandum explained, however, that the use of the term ‘‘neverthe­ less” cast doubt on the argument that the Impeachment Judgment Clause con­ stitutes a bar to the prosecution o f a person subject to impeachment prior to the termination of impeachment proceedings. Id. at 3. “ Nevertheless” indicates that the Framers intended the Clause to signify only that prior conviction in the Senate would not constitute a bar to subsequent prosecution, not that prosecution of a person subject to impeachment could occur only after conviction in the Senate. Id. “ The purpose of this clause thus is to permit criminal prosecution in spite of the prior adjudication by the Senate, i.e., to forestall a double jeopardy argu­ m ent.” Id .5 Be Indicted and Tried f o r the Same Offenses f o r Which He Was Impeached by the House and Acquitted by the Senate, 24 O p O L.C. I l l (2000) 4 In The Federalist No 69, Hamilton explained: The President o f the Umted States would be liable to be impeached, tried, and upon conviction . . removed from office, and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person o f the King o f Great Britain is sacred and inviolable: there is no constitutional tribunal to which he is amenable, no punishment to which he can be subjected without involving the cnsis of a national revolution The Federalist No. 69, at 416 (Alexander Hamilton) (Clinton Rossiter e d , 1961) (emphasis added). Similarly, in The Federalist No 65, he stated the punishment which may be the consequence o f conviction upon impeachment is not to terminate the chastisement o f the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence and honors and emoluments of h is country, he will still be liable to prosecution and punishment m the ordinary course o f law. Id. at 3 98-99 (emphasis added). Moreover, in The Federalist No. 77, he maintained that the President is “ at all times liable to impeachment, trial, dismission from office . . . and to the forfeiture of life and estate by subsequent prosecution in the common course o f law ” Id. at 464 (emphasis added) In addition, Gouvemeur Morris stated at the Convention that “ [a] conclusive reason fo r making the Senate instead of the Supreme Court the Judge of impeachments, was that the latter was to try th e President after the trial of the impeachment.” 2 Records o f the Federal Convention o f 1787, at 500 (Max Farrand ed., 1974). 5 In our recent memorandum exploring in detail the meaning o f the Impeachment Judgment Clause, we concluded that the relationship between this clause and double jeopardy principles is somewhat more complicated than the 1973 OLC M emo suggests See Whether a Form er President May Be Indicted and Tried fo r the Same Offenses 224 A Sitting President's Amenability to Indictment and Criminal Prosecution The OLC memorandum further explained that if the text of the Impeachment Judgment Clause barred the criminal prosecution of a sitting President, then the same text would necessarily bar the prosecution of all other “ civil officers” during their tenure in office. The constitutional practice since the Founding, how­ ever, has been to prosecute and even imprison civil officers other than the Presi­ dent while they were still in office and prior to their impeachment. See, e.g., id. at 4—7 (cataloguing cases). In addition, the conclusion that the Impeachment Judgment Clause constituted a textual bar to the prosecution of a civil officer prior to the termination of impeachment proceedings “ would create serious prac­ tical difficulties in the administration of the criminal law.” Id. at 7. Under such an interpretation, a prosecution of a government official could not proceed until a court had resolved a variety of complicated threshold constitutional questions: These include, first, whether the suspect is or was an officer of the United States within the meaning of Article II, section 4 of the Constitution, and second, whether the offense is one for which he could be impeached. Third, there would arise troublesome cor­ ollary issues and questions in the field of conspiracies and with respect to the limitations of criminal proceedings. Id. The memorandum concluded that “ [a]n interpretation of the Constitution which injects such complications into criminal proceedings is not likely to be a correct one.” Id. As a result, the Impeachment Judgment Clause could not itself be said to be the basis for a presidential immunity from indictment or criminal trial. 2. The OLC memorandum next considered “ whether an immunity of the President from criminal proceedings can be justified on other grounds, in particular the consideration that the President’s subjection to the jurisdiction of the courts would be inconsistent with his position as head of the Executive branch.” OLC Memo at 18. In examining this question, the memorandum first considered the contention that the express, limited immunity conferred upon members of Congress by the Arrest and Speech or Debate Clauses of Article I, Section 6 of the Constitution necessarily precludes the conclusion that the President enjoys a broader, implicit immunity from criminal process.6 One might contend that the Constitution’s grant fo r Which He Was Impeached by the House and Acquitted by the Senate, 24 Op. O L C at 128-30. Nothing in our more recent analysis, however, calls into question the 1973 OLC M emo’s conclusions. 6 Article I, Section 6, Clause 1 provides The Senators and Representatives shall . in all Cases, except Treason, Felony and Breach of the Peace, be privileged from A rrest during their Attendance at the Session o f their respective Houses, and in going Continued 225 Opinions of the Office o f Legal Counsel in Volume 24 of a limited immunity to members of Congress reflects a determination that federal officials enjoy no immunity absent a specific textual grant. The OLC memorandum determined that this contention was not “ necessarily conclusive.” OLC Memo at 18. “ [I]t could be said with equal validity that Article I, sec. 6, clause 1 does not confer any immunity upon the members of Congress, but rather limits the complete immunity from judicial proceedings which they otherwise would enjoy as members of a branch co-equal with the judiciary.” Id. Thus, in the absence of a specific textual provision withdrawing it, the President would enjoy absolute immunity. In addition, the textual silence regarding the exist­ ence of a presidential immunity from criminal proceedings may merely reflect the fact that it “ may have been too well accepted to need constitutional mention (by analogy to the English Crown), and that the innovative provision was the specified process of impeachment extending even to the President.” Id. at 19. Finally, the historical evidence bearing on whether or not an implicit presidential immunity from judicial process was thought to exist at the time of the Founding was ultimately “ not conclusive.” Id. at 20. 3. The OLC memorandum next proceeded to consider whether an immunity from indictment or criminal prosecution was implicit in the doctrine of separation of powers as it then stood. OLC Memo at 20. After reviewing judicial precedents and an earlier OLC opinion,7 id. at 21-24, the OLC memorandum concluded that “ under our constitutional plan it cannot be said either that the courts have the same jurisdiction over the President as if he were an ordinary citizen or that the President is absolutely immune from the jurisdiction of the courts in regard to any kind of claim.” Id. at 24. As a consequence, “ [t]he proper approach is to find the proper balance between the normal functions of the courts and the special responsibilities and functions of the Presidency.” Id. The OLC memorandum separated into two parts the determination of the proper constitutional balance with regard to the indictment or criminal prosecution of a sitting President. First, the memorandum discussed whether any of the consider­ ations that had lead to the rejection of the contention that impeachment must pre­ cede criminal proceedings for ordinary civil officers applied differently with respect to the President in light o f his position as the sole head of an entire branch of government. Id.8 Second, the memorandum considered “ whether criminal pro­ to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place 7 See M emorandum from Robert G Dixon, Jr , Assistant Attorney General, Office of Legal Counsel, Re Presi­ dential Am enability to Judicial Subpoenas (June 25, 1973). 8 W e note that the statements quoted in footnote 4 above from The Federalist Papers and Gouvemeur Moms, which provide that the President may be prosecuted after having been tried by the Senate, are consistent with the conclusion that the President may enjoy an immunity from cnm inal prosecution while in office that other civil officers do not The quoted statements are not dispositive o f this question, however, as the OLC memorandum 226 A Sitting President's Amenability to Indictment and Criminal Prosecution ceedings and execution of potential sentences would improperly interfere with the President’s constitutional duties and be inconsistent with his status.” Id. a. The OLC memorandum’s analysis of the first of these questions began with a consideration of whether the nature of the defendant’s high office would render such a trial “ too political for the judicial process.” OLC Memo at 24. The memo­ randum concluded that the argument was, as a general matter, unpersuasive. Nothing about the criminal offenses for which a sitting President would be tried would appear to render the criminal proceedings “ too political.” The only kind of offenses that could lead to criminal proceedings against the President would be statutory offenses, and “ their very inclusion in the Penal Code is an indication of a congressional determination that they can be adjudicated by a judge and jury.” Id. In addition, there would not appear to be any “ weighty reason to dif­ ferentiate between the President and other officeholders” in regard to the “ polit­ ical” nature of such a proceeding “ unless special separation of powers based interests can be articulated with clarity.” Id. at 25. The memorandum also considered but downplayed the potential concern that criminal proceedings against the President would be “ too political” either because “ the ordinary courts may not be able to cope with powerful men” or because no fair trial could be provided to the President. Id. Although the fear that courts would be unable to subject powerful officials to criminal process “ arose in Eng­ land where it presumably was valid in feudal time,” “ [i]n the conditions now prevailing in the United States, little weight is to be given to it as far as most officeholders are concerned.” Id. Nor did the memorandum find great weight in the contention that the President, by virtue of his position, could not be assured a fair criminal proceeding. To be sure, the memorandum continued, it would be “ extremely difficult” to assure a sitting President a fair trial, id., noting that it “ might be impossible to impanel a neutral jury.” Id. However, “ there is a serious ‘fairness’ problem whether the criminal trial precedes or follows impeachment.” Id. at 26. And “ the latter unfairness is contemplated and accepted in the impeach­ ment clause itself, thus suggesting that the difficulty in impaneling a neutral jury should not be viewed, in itself, an absolute bar to indictment of a public figure.” Id. The OLC memorandum next considered whether, in light of the President’s unique powers to supervise executive branch prosecutions and assert executive recognized Some statements by subsequent commentators may be read to contemplate cnminal prosecution of incum­ bent civil officers, including the President See, e g., William Rawle, A View o f the Constitution o f the United States o f America 215 (2d ed 1829) ( “ But the ordinary tnbunals, as we shall see, are not precluded, either before or after an impeachment, from taking cognizance o f the public and official delinquency.” ). There is also James W ilson’s statement in the Pennsylvania ratification debates that “ far from being above the laws, he [the President] is amenable to them in his pnvate character as a citizen, and in his public character by impeachment." 2 The D ebates in the Several State Conventions on the Adoption o f the Federal Constitution 480 (Jonathan Elliot ed , 2d ed. 1836). 227 Opinions of the Office o f Legal Counsel m Volume 24 privilege, the constitutional balance generally should favor the conclusion that a sitting President may not be subjected to indictment or criminal prosecution. Id. at 26. According to this argument, the possession of these powers by the President renders the criminal prosecution o f a sitting President inconsistent with the con­ stitutional structure. It was suggested that such powers, which relate so directly to the President’s status as a law enforcement officer, are simply incompatible with the notion that the President could be made a defendant in a criminal case. The memorandum did not reach a definitive conclusion on the weight to be accorded the President’s capacity to exercise such powers in calculating the con­ stitutional balance, although it did suggest that the President’s possession of such powers pointed somewhat against the conclusion that the chief executive could be subject to indictment or criminal prosecution during his tenure in office. In setting forth the competing considerations, the memorandum explained that, on the one hand, “ it could be argued that a President’s status as defendant in a criminal case would be repugnant to his office of Chief Executive, which includes the power to oversee prosecutions. In other words, just as a person cannot be judge in his own case, he cannot be prosecutor and defendant at the same time.” Id. This contention “ would lose some of its persuasiveness where, as in the W atergate case, the President delegates his prosecutorial functions to the Attorney General, who in turn delegates them [by regulation] to a Special Pros­ ecutor.” Id. At the same time, the status of the Watergate Special Prosecutor was somewhat uncertain, as “ none of these delegations is, or legally can be, absolute or irrevocable.” Id. The memorandum suggested, therefore, that even in the Watergate matter there remained the structural anomaly of the President serving as the chief executive and the defendant in a federal prosecution brought by the executive branch.9 The OLC memorandum also considered the degree to which a criminal prosecu­ tion of a sitting President is incompatible with the notion that the President pos­ sesses the power to assert executive privilege in criminal cases. The memorandum suggested that “ the problem of Executive privilege may create the appearance of so serious a conflict of interest as to make it appear improper that the President should be a defendant in a criminal case.” Id. “ If the President claims the privi­ lege he would be accused of suppressing evidence unfavorable to him. If he fails to do so the charge would be that by making available evidence favorable to him he is prejudicing the ability o f future Presidents to claim privilege.” Id. Ulti­ 9 This particular concern might also “ lose som e of its persuasiveness” with respect to a prosecution by an inde­ pendent counsel appointed pursuant to the later-enacted Ethics in Government Act of 1978, 28 U.S.C §§49, 591 et seq , whose status is defined by statute rather than by regulation. In Morrison v. Olson, 487 U S 654 (1988), the Supreme Court rejected the argument that the independent counsel’s statutory protection from removal absent “ good cau se” or some condition substantially impairing the performance of his duties, id. at 663, violates the Appointments Clause, U.S Const art. II, §2, cl. 2, or separation o f powers principles more generally, 487 U S. at 685-96. But since the 1973 OLC memorandum did not place appreciable weight on this argument in determining a sitting President’s amenability to criminal prosecution, and since we place no reliance on this argument at all in our reconsideration and reaffirmation of the 1973 memorandum’s conclusion, see infra part IIB, we need not further explore M orrison's relevance to this argument 228 A Sitting President's Amenability to Indictment and Criminal Prosecution mately, however, the memorandum did not conclude that the identification of the possible incompatibility between the exercise of certain executive powers and the criminal prosecution of a sitting President sufficed to resolve the constitutional question whether a sitting President may be indicted or tried. b. The OLC memorandum then proceeded to the second part of its constitutional analysis, examining whether criminal proceedings against a sitting President should be barred by the doctrine of separation of powers because such proceedings would “ unduly interfere in a direct or formal sense with the conduct of the Presi­ dency.” OLC Memo at 27. It was on this ground that the memorandum ultimately concluded that the indictment or criminal prosecution of a sitting President would be unconstitutional. As an initial matter, the memorandum noted that in the Burr case, see U nited States v. Burr, 25 F. Cas. 187 (C.C. D. Va. 1807) (No. 14,694), President Jefferson claimed a privilege to be free from attending court in person. OLC Memo at 27. Moreover, “ it is generally recognized that high government officials are excepted from the duty to attend court in person in order to testify,” and “ [t]his privilege would appear to be inconsistent with a criminal prosecution which nec­ essarily requires the appearance of the defendant for pleas and trial, as a practical matter.” Id. The memorandum noted, however, that the privilege against personal appearance was “ only the general rule.” Id. The memorandum then suggested that the existence of such a general privilege was not. by itself, determinative of the question whether a sitting President could be made a defendant in a criminal proceeding. “ Because a defendant is already personally involved in a criminal case (if total immunity be laid aside), it may be questioned whether the normal privilege of high officials not to attend court in person applies to criminal pro­ ceedings in which the official is a defendant.” Id. Even though the OLC memorandum suggested that the existence of a general privilege against personal appearance was not determinative, the memorandum did conclude that the necessity of the defendant’s appearance in a criminal trial was of great relevance in determining how the proper constitutional balance should be struck. By virtue of the necessity of the defendant’s appearance, the institution of criminal proceedings against a sitting President ‘‘would interfere with the Presi­ dent’s unique official duties, most of which cannot be performed by anyone else.” Id. at 28. Moreover, “ [djuring the past century the duties of the Presidency . . . have become so onerous that a President may not be able fully to discharge the powers and duties of his office if he had to defend a criminal prosecution.” Id. Finally, “ under our constitutional plan as outlined in Article I, sec. 3, only the Congress by the formal process of impeachment, and not a court by any process should be accorded the power to interrupt the Presidency or oust an incumbent.” 229 Opinions o f the Office o f Legal Counsel in Volume 24 Id. The memorandum rejected the argument that such burdens should not be thought conclusive because even an impeachment proceeding that did not result in conviction might preclude a President from performing his constitutionally assigned duties in the course of defending against impeachment. In contrast to the risks that would attend a criminal proceeding against a sitting President, “ this is a risk expressly contemplated by the Constitution, and is a necessary incident of the impeachment process.” Id. As a consequence of the personal attention that a defendant must, as a practical matter, give in defending against a criminal proceeding, the memorandum con­ cluded that there were particular reasons rooted in separation of powers concerns that supported the recognition o f an immunity for the President while in office. With respect to the physical disabilities alone imposed by criminal prosecution, ‘‘in view of the unique aspects of the Office of the President, criminal proceedings against a President in office should not go beyond a point where they could result in so serious a physical interference with the President’s performance of his offi­ cial duties that it would amount to an incapacitation.” Id. at 29. To be sure, the concern that criminal proceedings would render a President physically incapable of performing constitutionally assigned functions would not be “ quite as serious regarding minor offenses leading to a short trial and a fine.” Id. But “ in more serious matters, i.e., those which could require the protracted personal involvement of the President in trial proceedings, the Presidency would be derailed if the Presi­ dent were tried prior to removal.” Id. The OLC memorandum also explained that the “ non-physical yet practical interferences, in terms of capacity to govern” that would attend criminal pro­ ceedings against a sitting President must also be considered in the constitutional balance o f competing institutional interests. Id. In this regard, the memorandum explained that ‘ ‘the President is the symbolic head of the Nation. To wound him by a criminal proceeding is to hamstring the operation o f the whole governmental apparatus, both in foreign and domestic affairs.” Id. at 30. In light of the conclu­ sion that an adjudication o f the President’s criminal culpability would be uniquely destabilizing to an entire branch o f government, the memorandum suggested that “ special separation of powers based interests can be articulated with clarity” against permitting the ordinary criminal process to proceed. Id. at 25. By virtue of the impact that an adjudication of criminal culpability might have, a criminal proceeding against the President is, in some respects, necessarily political in a way that criminal proceedings against other civil officers would not be. In this respect, it would be “ incongruous” for a “ jury of twelve” to undertake the “ unavoidably political” task of rendering judgment in a criminal proceeding against the President. Id. at 30. “ Surely, the House and Senate, via impeachment, are more appropriate agencies for such a crucial task, made unavoidably political by the nature o f the ‘defendant.’ ” Id. The memorandum noted further that “ [t]he genius of the jury trial” was to provide a forum for ordinary people to pass on 230 A Sitting President's Amenability to Indictment and Cnminal Prosecution “ matters generally within the experience or contemplation of ordinary, everyday life.” Id. at 31. The memorandum therefore asked whether it would “ be fair to such an agency to give it responsibility for an unavoidably political judgment in the esoteric realm of the Nation’s top Executive.” Id. In accord with this conclusion about the propriety of leaving such matters to the impeachment process, the memorandum noted that “ [u]nder our developed constitutional order, the presidential election is the only national election, and there is no effective substitute for it.” Id. at 32. A criminal trial of a sitting Presi­ dent, however, would confer upon a jury of twelve the power, in effect, to overturn this national election. “ The decision to terminate this mandate . . . is more fit­ tingly handled by the Congress than by a jury, and such congressional power is founded in the Constitution.” Id. In addition, the impeachment process is better suited to the task than is a criminal proceeding because appeals from a criminal trial could “ drag out for months.” Id. at 31. By contrast, “ [t]he whole country is represented at the [impeachment] trial, there is no appeal from the verdict, and removal opens the way for placing the political system on a new and more healthy foundation.” Id. 4. The OLC memorandum concluded its analysis by addressing “ [a] possibility not yet mentioned,” which would be “ to indict a sitting President but defer further proceedings until he is no longer in office.” OLC Memo at 29. The memorandum stated that “ [f]rom the standpoint of minimizing direct interruption of official duties — and setting aside the question of the power to govern — this procedure might be a course to be considered.” Id. The memorandum suggested, however, that “ an indictment hanging over the President while he remains in office would damage the institution of the Presidency virtually to the same extent as an actual conviction.” Id. In addition, there would be damage to the executive branch “ flowing from unrefuted charges.” Id. Noting that “ the modem Presidency, under whatever party, has had to assume a leadership role undreamed of in the eighteenth and early nineteenth centuries,” the memorandum stated that “ [t]he spectacle of an indicted President still trying to serve as Chief Executive boggles the imagina­ tion.” Id. at 30. The memorandum acknowledged that, “ it is arguable that . . . it would be pos­ sible to indict a President, but defer trial until he was out of office, without in the meantime unduly impeding the power to govern, and the symbolism on which so much of his real authority rest.” Id. at 31. But the memorandum nevertheless concluded that [g]iven the realities of modem politics and mass media, and the delicacy of the political relationships which surround the Presidency 231 Opinions o f the Office o f Legal Counsel in Volume 24 both foreign and domestic, there would be a Russian roulette aspect to the course of indicting the President but postponing trial, hoping in the meantime that the power to govern could survive. Id. In light of the effect that an indictment would have on the operations of the executive branch, “ an impeachment proceeding is the only appropriate way to deal with a President while in office.” Id. at 32. In reaching this conclusion regarding indictment, the memorandum noted that there are “ certain drawbacks,” such as the possibility that the statute of limitations might run, thereby resulting in “ a complete hiatus in criminal liability.” Id. As the statute of limitations is ultimately within the control of Congress, however, the memorandum’s analysis concluded as follows: “ We doubt . . . that this gap in the law is sufficient to overcome the arguments against subjecting a President to indictment and criminal trial while in office.” Id. B. On October 5, 1973, less than two weeks after OLC issued its memorandum, Solicitor General Robert Bork filed a brief in the United States District Court for the District of Maryland that addressed the question whether it would be con­ stitutional to indict or criminally try a sitting President. Then-Vice President Agnew had moved to enjoin, principally on constitutional grounds, grand jury proceeding against him. See SG B rief at 3. In response to this motion, Solicitor General Bork provided the court with a brief that set forth “ considerations based upon the Constitution’s text, history, and rationale which indicate that all civil officers of the United States other than the President are amenable to the federal criminal process either before o r after the conclusion of impeachment pro­ ceedings.” Id .10 1. As had the OLC memorandum, the Solicitor General’s brief began by noting that “ [t]he Constitution provides no explicit immunity from criminal sanctions for any civil officer.” SG Brief at 4. Indeed, the brief noted that the only textual grant of immunity for federal officials appears in the Arrest and Speech or Debate Clauses of Article I, Section 6. In referring to these clauses, the brief rejected the suggestion that the immunities set forth there could be understood to be a partial withdrawal from members o f Congress of a broader implicit immunity that all civil officers, including the President, generally enjoyed; indeed, “ [t]he intent 10 Unlike the OLC memorandum, the Solicitor General’s brief did not specifically distinguish between indictment and other phases o f the “ criminal process” W hile explaining that “ the President is immune from indictment and trial prior to removal from office,” SG Brief at 20, the brief did not specifically opine as to whether the President could be indicted as long as further process was postponed until he left office. 232 A Sitting President’s Amenability to Indictment and Criminal Prosecution of the Framers was to the contrary.” SG Brief at 5.11 In light of the textual omis­ sion of any express grant of immunity from criminal process for civil officers generally, “ it would require a compelling constitutional argument to erect such an immunity for a Vice President.” Id. In considering whether such a compelling argument could be advanced, the brief distinguished the case of the President from that of the Vice President. Although the Vice President had suggested that the Impeachment Judgment Clause itself demonstrated that ‘ ‘impeachment must precede indictment’’ for all civil officers, the records of the debates of the constitutional convention did not support that conclusion. Id. The Solicitor General argued, in accord with the OLC memo­ randum, that the “ principal operative effect” of the Impeachment Judgment Clause ‘‘is solely the preclusion of pleas of double jeopardy in criminal prosecu­ tions following convictions upon impeachments.” Id. at 7. In any event, the discussion of the Impeachment Judgment Clause in the convention focused almost exclusively on the Office of the President, and “ the Framers did not debate the question whether impeachment generally must precede indictment.” Id. at 6. To the extent that the convention did debate the timing of impeachment relative to indictment, the brief explained, the convention records “ show that the Framers contemplated that this sequence should be mandatory only as to the President.” Id. Moreover, the remarks contained in those records “ strongly suggest an under­ standing that the President, as Chief Executive, would not be subject to the ordi­ nary criminal process.” Id. The Framers’ “ assumption that the President would not be subject to criminal process” did not, however, rest on a general principle applicable to all civil officers. Id. Instead, the assumption was “ based upon the crucial nature of his executive powers.” Id. As the brief stated: The President’s immunity rests not only upon the matters just dis­ cussed but also upon his unique constitutional position and powers . . . . There are substantial reasons, embedded not only in the con­ stitutional framework but in the exigencies of government, for distinguishing in this regard between the President and all lesser officers including the Vice President. Id. at 7. 2. In explaining why, as an initial matter, the Vice President could be indicted and tried while still in office, the brief argued that indictment would not effect the de facto removal of that officer. SG Brief at 11. “ [I]t is clear from history 11 In this respect, the Solicitor General’s brief more forcefully rejected this suggestion than did the OLC m em o­ randum, which reasoned that the clauses gave rise “ with equal validity” to competing inferences on this point See OLC Memo at 18 233 Opinions o f the Office o f Legal Counsel in Volume 24 that a criminal indictment, or even trial and conviction, does not, standing alone, effect the removal of an impeachable federal officer.” Id. at 11-12. The brief noted the past constitutional practice of indicting and even convicting federal judges during their tenure, as well as the fact that Vice President Aaron Burr “ was subject to simultaneous indictment in two states while in office, yet he continued to exercise his constitutional responsibilities until the expiration of his term.” Id. at 12. “ Apparently, neither Burr nor his contemporaries considered him constitutionally immune from indictment. Although counsel for the Vice President asserted that Burr’s indictments were ‘allowed to die,’ that was merely because ‘Burr thought it best not to visit either New York or New Jersey.’ ” Id. at 12 n* (citations omitted). The brief therefore determined that “ [cjertainly it is clear that criminal indictment, trial, and even conviction of a Vice President would not, ipso fa c to , cause his removal; subjection of a Vice President to the criminal process therefore does not violate the exclusivity of the impeachment power as the means of his removal from office.” Id. at 13. The brief did conclude, however, that the “ structure of the Constitution” pre­ cluded the indictment of the President. Id. at 15. In framing the inquiry into whether considerations of constitutional structure supported the recognition of an immunity from criminal process for certain civil officers, the brief explained that the “ Constitution is an intensely practical document and judicial derivation of powers and immunities is necessarily based upon consideration of the document’s structure and of the practical results of alternative interpretations.” Id. As a con­ sequence, [t]he real question underlying the issue of whether indictment of any particular civil officer can precede conviction upon impeach­ m ent— and it is constitutional in every sense because it goes to the heart of the operation o f government — is whether a govern­ mental function would be seriously impaired if a particular civil officer were liable to indictment before being tried on impeachment. Id. at 15-16. Given that the constitutional basis for the recognition of a civil offi­ cer’s immunity from criminal process turned on the resolution of this question, the answer “ must necessarily vary with the nature and functions of the office involved.” Id. at 16. The brief then proceeded to consider the consequences that criminal prosecu­ tions would have on the performance of the constitutional functions that are the responsibility of various civil officers. As a matter of constitutional structure, Article III judges should enjoy no constitutional immunity from the criminal process because while a “ judge m ay be hampered in the performance of his duty when he is on trial for a felony . . . his personal incapacity in no way threatens the ability of the judicial branch to continue to function effectively.” Id. at 16. 234 A Sitting President’s Amenability to Indictment and Criminal Prosecution Similarly, no such immunity should be recognized for members o f Congress. The limited immunity in the Arrest and Speech or Debate Clauses reflected a recognition that, although the functions of the legislature are not lightly to be interfered with, the public interest in the expeditious and even-handed administration of the criminal law outweighs the cost imposed by the incapacity of a single legislator. Such inca­ pacity does not seriously impair the functioning of Congress. Id. at 16-17. The brief argued that the same structural considerations that counseled against the recognition of an immunity from criminal process for individual judges or legislators also counseled against the recognition of such an immunity for the Vice President: Although the office of the Vice Presidency is of course a high one, it is not indispensable to the orderly operation of government. There have been many occasions in our history when the nation lacked a Vice President, and yet suffered no ill consequences. And, as has been discussed above, at least one Vice President successfully ful­ filled the responsibilities of his office while under indictment in two states. Id. al 18 (citation omitted). The brief noted that the Vice President had only three constitutional functions: to replace the President in certain extraordinary cir­ cumstances; to make, in certain extraordinary circumstances, a written declaration of the President’s inability to discharge the powers and duties of his office; and to preside over the Senate and cast the deciding vote in the case of a tie in that body. Id. at 19. None of these “ constitutional functions is substantially impaired by [the Vice President’s] liability to the criminal process.” Id. 3The Solicitor General’s brief explained that recognition of presidential immunity from criminal process, in contrast to the vice presidential immunity, was com­ pelled by a consideration of the constitutional structure. After noting that “ [ajlmost all legal commentators agree . . . that an incumbent President must be removed from office through conviction upon an impeachment before being subject to the criminal process,” SG Brief at 17, the brief repeated its determina­ tion that the Framers assumed “ that the nation’s Chief Executive, responsible as no other single officer is for the affairs of the United States, would not be taken from duties that only he can perform unless and until it is determined that he 235 Opinions o f the Office o f Legal Counsel in Volume 24 is to be shorn of those duties by the Senate.” Id. A proper understanding of the constitutional structure reflects this shared assumption; in this regard it is “ note­ worthy that the President is the only officer of government for whose temporary disability the Constitution provides procedure to qualify a replacement.” Id. at 18. This provision constituted a textual recognition “ that the President is the only officer of government for whose temporary disability while in office incapacitates an entire branch of government.” Id. Finally, the brief noted that the conclusion that the Framers assumed that the President would enjoy an immunity from criminal process was supported by other considerations of constitutional structure beyond the serious interference with the capacity of the executive branch to perform its constitutional functions. The “ Framers could not have contemplated prosecution of an incumbent President because they vested in him complete power over the execution of the laws, which includes, of course, the power to control prosecutions.” Id. at 20. C. The foregoing review demonstrates that, in 1973, the Department applied a con­ sistent approach in analyzing the constitutional question whether a sitting President may be subject to indictment and criminal prosecution. Both the OLC memo­ randum and the Solicitor General’s brief recognized that the President is not above the law, and that he is ultimately accountable for his misconduct that occurs before, during, and after his service to the country. Each also recognized, however, that the President occupies a unique position within our constitutional order. The Department concluded that neither the text nor the history of the Constitu­ tion ultimately provided dispositive guidance in determining whether a President is amenable to indictment or criminal prosecution while in office. It therefore based its analysis on more general considerations of constitutional structure. Because of the unique duties and demands of the Presidency, the Department con­ cluded, a President cannot be called upon to answer the demands of another branch of the government in the same manner as can all other individuals. The OLC memorandum in particular concluded that the ordinary workings of the criminal process would impose burdens upon a sitting President that would directly and substantially impede the executive branch from performing its constitutionally assigned functions, and the accusation or adjudication of the criminal culpability of the nation’s chief executive by either a grand jury returning an indictment or a petit jury returning a verdict would have a dramatically destabilizing effect upon the ability of a coordinate branch of government to function. The Department therefore concluded in both the OLC memorandum and the Solicitor General’s brief that, while civil officers generally may be indicted and criminally prosecuted during their tenure in office, the constitutional structure permits a sitting President 236 A Sitting President’s Amenability to Indictment and Criminal Prosecution to be subject to criminal process only after he leaves office or is removed there­ from through the impeachment process. II. Since the Department set forth its constitutional analysis in 1973, the Supreme Court has decided three cases that are relevant to whether a sitting President may be subject to indictment or criminal prosecution.12 U nited States v. Nixon, 418 U.S. 683 (1974), addressed whether the President may assert a claim of executive privilege in response to a subpoena in a criminal case that seeks records of communications between the President and his advisors. Nixon v. F itzgerald, 457 U.S. 731 (1982), and Clinton v. Jones, 520 U.S. 681 (1997), both addressed the extent to which the President enjoys a constitutional immunity from defending against certain types of civil litigation, with F itzgerald focusing on official mis­ conduct and Jon es focusing primarily on misconduct “ unrelated to any of his official duties as President of the United States and, indeed, occurr[ing] before he was elected to that office.” Id. at 686.13 None of these cases directly addresses the questions whether a sitting President may be indicted, prosecuted, or imprisoned.14 We would therefore hesitate before ,2 We do not consider either Nixon v Administrator o f General Services, 433 U S. 425 (1977), or Morrison v. Olson, 487 U.S 654 (1988), to be directly relevant to this question, and thus we do not discuss either o f them extensively. Nixon v Administrator o f General Services involved a suit brought by former President Nixon to enjoin enforcement of a federal statute taking custody of and regulating access to his Presidential papers and various tape recordings, in part on the ground that the statute violated the separation of powers While the case did analyze the separation o f powers claim under a balancing test o f the sort w e embrace here, w e m fm text accompanying note 17, the holding and reasoning do not shed appreciable light on the question before us Morrison v Olson considered and rejected various separation o f powers challenges to the independent counsel provisions o f the Ethics in Government Act of 1978, which authorized a court-appointed independent counsel to investigate and prosecute the President and certain other high-ranking executive branch officials for violations of federal cnminal laws Morrison focused on whether a particular type o f prosecutor could pursue cnminal investiga­ tions and prosecutions o f executive branch officials, in a case involving the cnminal investigation of an infenor federal officer The Court accordingly had no occasion to and did not consider whether the Act could constitutionally be invoked to support an independent counsel’s indictment of a silting President. ,3The Court noted that Jones’s state law claim for defamation based on statements by “ vanous persons authonzed to speak for the President,” 520 U S . al 685, “ arguably may involve conduct within the outer penm eter of the President’s official responsibilities ” Id. at 686 For purposes of this memorandum, we use the phrase “ unofficial conduct,” as did the Court, see id. at 693, to refer to conduct unrelated to the President’s official duties. Compare Nixon v. Fitzgerald, 457 U S. at 756 (recognizing “ absolute Presidential immunity from damages liability for acts within the ‘outer perim eter’ of his official responsibility” ). 14 See United States v. Nixon, 418 U S . at 687 n 2 (expressly reserving the question whether the President can constitutionally be named an unindicted co-conspirator). See also Jones v. Clinton, 36 F Supp 2d 1118, 1134 n.22 (E D Ark 1999) ( “ [T]he question o f whether a President can be held in cnminal contempt o f court and subjected to cnminal penalties raises constitutional issues not addressed by the Supreme Court in the Jones case.” ) As a matter of constitutional practice, it remains the case today that no President has ever so much as testified, or been ordered to testify, in open court, let alone been subject to criminal proceedings as a defendant. Clinton v. Jones, 520 U.S at 692 n 14. In the reply b n ef for the United States in United States v N ixon, in response to President Nixon’s argument that a sitting President was constitutionally immune from indictment and therefore immune from being named an unindicted co-conspirator by a grand jury, Watergate Special Prosecutor Leon Jaworski argued that it was not settled as a matter of constitutional law whether a sitting President could be subject to indictment. See Reply B n ef for the United States, United States v. Nixon, 418 U S . 683 (1974) (No 73-1766). He therefore argued that the Court Continued 237 Opinions of the Office o f Legal Counsel in Volume 24 concluding that judicial statements made in the context of these distinct constitu­ tional disputes would suffice to undermine the Department’s previous resolution of the precise constitutional question addressed here. In any event, however, we conclude that these precedents are largely consistent with the Department’s 1973 determinations that (1) the proper doctrinal analysis requires a balancing between the responsibilities of the President as the sole head of the executive branch against the important governmental purposes supporting the indictment and criminal prosecution of a sitting President; and (2) the proper balance supports recognition of a temporary immunity from such criminal process while the Presi­ dent remains in office. Indeed, U n ited S tates v. Nixon and Nixon v. F itzgerald recognized and embraced the same type of constitutional balancing test anticipated in this Office’s 1973 memorandum. Clinton v. Jones, which held that the President is not immune from at least certain judicial proceedings while in office, even if those proceedings may prove somewhat burdensome, does not change our conclusion in 1973 and again today that a sitting President cannot constitutionally be indicted or tried. A. 1. In U n ited S ta tes v. Nixon, the Court considered a motion by President Nixon to quash a third-party subpoena duces tecum directing the President to produce certain tape recordings and documents concerning his conversations with aides and advisers. 418 U.S. at 686. The Court concluded that the subpoena, which had been issued upon motion by the Watergate Special Prosecutor in connection should not rely on the assumption that a sitting President is immune from indictment in resolving the distinct question whether the President could be named an unindicted co-conspirator In so arguing, the Special Prosecutor rejected the President’s contention that either the historical evidence o f the intent o f the Framers or the plain terms of the Impeachment Judgm ent Clause foreclosed the indictment o f a sitting President as a constitutional matter See id. at 24 ( “ nothing in the text o f the Consutuuon o r m its history . imposes any bar to indictment of an incumbent President” ), id at 29 ( “ [T]he simple fact is that the Framers never confronted the issue at all ” ) The Special Prosecutor then argued, as the Department itself had concluded, that “ [pjnm ary support for such a prohibition must be found, if at all, in considerations of constitutional and public policy including competing factors such as the nature and role o f the Presidency in our constitutional system, the importance of the administration of criminal justice, and the principle that under our system no person, no matter what his station, is above the law .” Id. at 24-25. The Special Prosecutor explained that the contention that the President should be immune from indictment because the functioning o f the executive branch depends upon a President unburdened by defending against criminal chargcs “ is a weighty argum ent and it is enutled to great respect.” Id. at 31. He noted, however, that “ our constitu­ tional system has shown itself to be remarkably resilient” and that “ there are very serious implications to the Presi­ dent’s position that he has absolute immunity from criminal indictm ent.” Id at 32 In particular, the Special Pros­ ecutor argued that to the extent some cnminal offenses are not impeachable, the recognition of an absolute immunity from indictment would mean that “ the Constitution has left a lacuna of potentially senous dimensions ” Id. at 34. The Special Prosecutor ulumately concluded that “ [w]hether these factors compel a conclusion that as a matter of constitutional interpretation a sitting President cannot be indicted for violations of federal criminal laws is an issue about which, at best, there is presently considerable doubt.” Id. at 25. He explained further that the resolution of this question was not necessary to the decision in Nixon, because the Court confronted only the question whether the President could be named an umndicted co-conspirator— an event that “ cannot be regarded as equally burden­ some.” Id at 20. 238 A Silting President’s Amenability to Indictment and Criminal Prosecution with the criminal prosecution of persons other than the President, satisfied the standards of Rule 17(c) of Federal Rules of Criminal Procedure.15 The Court therefore proceeded to consider the claim “ that the subpoena should be quashed because it demands ‘confidential conversations between a President and his close advisors that it would be inconsistent with the public interest to produce.’ ” Id. at 703 (citation omitted). In assessing the President’s constitutional claim of privilege, the Court first considered the relevant evidence of the Framers’ intent and found that it supported the President’s assertion of a constitutional interest in confidentiality. Id. at 705 n.15. The Court also rejected the suggestion that the textual omission of a presi­ dential privilege akin to the congressional privilege set forth in the Arrest and Speech or Debate Clauses was “ dispositive” of the President’s claim. Id. at 705 n.16. Considering the privilege claim in light of the constitutional structure as a whole, the Court concluded that, [w]hatever the nature of the privilege of confidentiality of Presi­ dential communications in the exercise of Art. II powers, the privi­ lege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings. Id. at 705-06 (footnote omitted). Such a privilege must be recognized, the Court said, in light of “ the importance of . . . confidentiality of Presidential commu­ nications in performance of the President’s responsibilities.” Id. at 711. The interest in the confidentiality of Presidential communications was “ weighty indeed and entitled to great respect.” Id. at 712. The Court next considered the extent to which that interest would be impaired by presidential compliance with a subpoena. The Court concluded that it was quite unlikely that the failure to recognize an absolute privilege for confidential presi­ dential communications against criminal trial subpoenas would, in practical con­ sequence, undermine the constitutional interest in the confidentiality of such communications. “ [W]e cannot conclude that advisers will be moved to temper 15 In response to an earlier subpoena, President Nixon had asserted that, as a constitutional matter, he was absolutely immune from judicial process while in office The United States Court of Appeals for the District o f Columbia Circuit rejected that contention. See Nixon v Sirica, 487 F 2 d 700 (D C . Cir. 1973). The D C . Circuit explained that the President’s constitutional position could not be maintained in light of United Slates v Burr, 25 F Cas 187 (C.C.D Va 1807) (No 14,694), and it rejected the contention that the Supreme Court’s decision in Mississippi v Johnson, 71 U.S. (4 Wall.) 475 (1866), was to the contrary 487 F.2d at 708-12 We note that the Department’s 1973 analysis did not depend upon a broad contention that the President is immune from all judicial process while in office Indeed, the OLC memorandum specifically cast doubt upon such a contention and explained that even Attorney General Stanbery had not made such a broad argument in Mississippi v Johnson See OLC Memo at 23 ( “ Attorney General Stanbery’s reasoning is presumably limited to the power of the courts to review official action of the President ’’) 239 Opinions of the Office o f Legal Counsel in Volume 24 the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.” Id. Finally, the Court balanced against the President’s interest in maintaining the confidentiality of his communications “ [t]he impedi­ ment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions.” Id. at 707. The Court predicated its conclusion on the determination that “ [t]he need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial o r speculative presentation of the facts.” Id. at 709. The assessment of these competing interests led the Court to conclude that “ the legitimate needs of the judicial process may outweigh Presidential privilege,” id. at 707, and it therefore determined that it was “ necessary to resolve those com­ peting interests in a manner that preserves the essential functions of each branch.” Id. Here, the Court weighed the President’s constitutional interest in confiden­ tiality, se e id. at 707-08, against the nation’s “ historic commitment to the rule of law,” id. at 708, and the requirement of “ the fair administration of criminal justice.” Id. at 713. The Court ultimately concluded that the President’s general­ ized interest in confidentiality did not suffice to justify a privilege from all criminal subpoenas, although it noted that a different analysis might apply to a privilege based on national security interests. Id. at 706. 2. In Nixon v. F itzgerald, the Supreme Court considered a claim by former Presi­ dent Nixon that he enjoyed an absolute immunity from a former government employee’s suit for damages for President Nixon’s allegedly unlawful official con­ duct while in office. The Court endorsed a rule of absolute immunity, concluding that such immunity is “ a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and sup­ ported by our history.” 457 U.S. at 749. The Court reviewed various statements by the Framers and early commentators, finding them consistent with the conclusion that the Constitution was adopted on the assumption that the President would enjoy an immunity from damages liability for his official actions. Id. at 749, 751 n.31. The Court once again rejected the contention that the textual grant o f a privilege to members of Congress in Article I, Section 6 precluded the recognition of an implicit privilege on behalf of the President. S ee id. at 750 n.31. But as in U n ited S tates v. N ixon, the Court found that “ the most compelling arguments arise from the Constitution’s separation of powers and the Judiciary’s historic understanding of that doctrine,” Id. at 752 n.31. It emphasized that “ [t]he 240 A Sitting President’s Amenability to Indictment and Criminal Prosecution President occupies a unique position in the constitutional scheme . . . as the chief constitutional officer of the Executive Branch.” Id. at 749-50. Although other government officials enjoy only qualified immunity from civil liability for their official actions, “ [bjecause of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.” Id. at 751. Such lawsuits would be likely to occur in considerable numbers since the ‘‘President must concern himself with matters likely to ‘arouse the most intense feelings.’ ” Id. at 752. Yet, the Court noted, “ it is in precisely such cases that there exists the greatest public interest in providing an official ‘the maximum ability to deal fearlessly and impar­ tially’ with the duties of his office.” Id. (citations omitted). The Court emphasized that the “ visibility” of the President’s office would make him “ an easily identifi­ able target for suits for civil damages,” and that “ [c]ognizance of this personal vulnerability frequently could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.” Id. at 753. The Court next examined whether the constitutional interest in presidential immunity from civil damages arising from the performance of official duties was outweighed by the governmental interest in providing a forum for the resolution of damages actions generally, and actions challenging the legality of official presi­ dential conduct in particular. The Court concluded that it was appropriate to con­ sider the “ President’s constitutional responsibilities and status as factors coun­ seling judicial deference and restraint.” Id. at 753. As the Court explained, [i]t is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States. But our cases also have established that a court, before exer­ cising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch. Id. at 753-54 (citations omitted). In performing this balancing, the Court noted that recognition of a presidential immunity from such suits “ will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive,” in light of other mechanisms creating “ incentives to avoid mis­ conduct” (including impeachment). Id. at 757. The Court concluded that the con­ stitutional interest in ensuring the President’s ability to perform his constitutional functions outweighed the competing interest in permitting civil actions for unlaw­ ful official conduct to proceed. 241 Opinions o f the Office o f Legal Counsel in Volume 24 3. In C linton v. Jon es, the Court declined to extend the immunity recognized in F itzg era ld to civil suits challenging the legality of a President’s unofficial conduct. In that case, the plaintiff sought to recover compensatory and punitive damages for alleged misconduct by President Clinton occurring before he took federal office. The district court denied the President’s motion to dismiss based on a con­ stitutional claim of temporary immunity and held that discovery should go for­ ward, but granted a stay of the trial until after the President left office. The court of appeals vacated the order staying the trial, while affirming the denial of the immunity-based motion to dismiss. The Supreme Court affirmed, permitting the civil proceedings to go forward against the President while he still held office. In considering the President’s claim of a temporary immunity from suit, the Court first distinguished Nixon v. F itzgerald, maintaining that “ [t]he principal rationale for affording certain public servants immunity from suits for money dam­ ages arising out of their official acts is inapplicable to unofficial conduct.” Clinton v. Jones, 520 U.S. at 692-93. The point of immunity for official conduct, the Court explained, is to “ enabl[e] such officials to perform their designated func­ tions effectively without fear that a particular decision may give rise to personal liability.” Id. at 693. But “ [t]his reasoning provides no support for an immunity for unofficial conduct.” Id. at 694. Acknowledging F itzg era ld '%additional concern that “ ‘[b]ecause of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government,’ ” the Court treated this prior statement as dictum because “ [i]n context . . . it is clear that our dominant concern” had been the chilling effect that liability for official conduct would impose on the President’s performance of his official duties. Id. at 694 n.19 (quoting Nixon v. F itzg erald, 457 U.S. at 751). After determining that the historical evidence of the Framers’ understanding of presidential immunity was either ambiguous or conflicting and thus could not by itself support the extension of presidential immunity to unofficial conduct, see id. at 695-97, the Court considered the President’s argument that the “ text and structure” of the Constitution supported his claim to a temporary immunity. The Court accepted his contention that “ the doctrine of separation of powers places limits on the authority of the Federal Judiciary to interfere with the Executive Branch,” id. at 697-98, and conceded that the powers and obligations conferred upon a single President suggest that he occupies a “ ‘unique position in the con­ stitutional scheme.’ ” Id. at 698 (quoting N ixon v. F itzgerald, 457 U.S. at 749). But “ [i]t does not follow . . . that separation-of-powers principles would be vio­ lated by allowing this action to proceed.” Id. at 699. Rather than claiming that allowing the civil suit would either aggrandize judicial power or narrow any constitutionally defined executive powers, the President 242 A Silting President’s Amenability to Indictment and Criminal Prosecution argued that, as an inevitable result of the litigation, “ burdens will be placed on the President that will hamper the performance of his official duties,” id. at 701, both in the Jon es case and others that might follow. The Court first rejected the factual premise of the President’s claim, asserting that the President’s “ predictive judgment finds little support in either history or the relatively narrow compass of the issues raised in this particular case.” Id. at 702. “ As for the case at hand,” the Court continued, “ if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of petitioner’s time.” Id. The Court emphasized at the outset that it was not “ confront[ing] the question whether a court may compel the attendance of the President at any specific time or place,” id. at 691, and it “ assume[d] that the testimony of the President, both for discovery and for use at trial, may be taken at the White House at a time that will accommodate his busy schedule, and that, if a trial is held, there would be no necessity for the President to attend in person.” Id. at 691-92. Moreover, the Court explained, “ even quite burdensome interactions” between the judicial and executive branches do not “ necessarily rise to the level of con­ stitutionally forbidden impairment of the Executive’s ability to perform its con­ stitutionally mandated functions.” Id.; see also id. at 703 ( “ that a federal court’s exercise of its traditional Article III jurisdiction may significantly burden the time and attention of the Chief Executive is not sufficient to establish a violation of the Constitution” ). Noting that courts frequently adjudicate civil suits challenging the legality of official presidential actions, the Court also observed that courts occasionally have ordered Presidents to provide testimony and documents or other materials. Id. at 703-05 (citing U nited States v. Nixon as an example). By comparison, the Court asserted, “ [t]he burden on the President’s time and energy that is a mere byproduct of [the power to determine the legality of his unofficial conduct through civil litigation] surely cannot be considered as onerous as the direct burden imposed by judicial review and the occasional invalidation of his official actions.” Id. at 705. Finally, the Court agreed with the court of appeals that the district court abused its discretion by invoking its equitable powers to defer any trial until after the President left office, even while allowing discovery to continue apace. The Court observed that such a “ lengthy and categorical stay takes no account whatever of the respondent’s interest in bringing the case to trial,” id. at 707, in particular the concern that delay “ would increase the danger of prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party.” Id. at 707-08. On the other hand, continued the Court, assuming careful trial management, “ there is no reason to assume that the district courts will be either unable to accommodate the President’s [sched­ uling] needs or unfaithful to the tradition — especially in matters involving national security — of giving ‘the utmost deference to Presidential responsibil­ ities.’ ” Id. at 709 (quoting United States v. Nixon, 418 U.S. at 710-11). On this 243 Opinions o f the O ffice o f Legal Counsel in Volume 24 basis, the Court determined that a stay of any trial pending the President’s leaving office was not supported by equitable principles.16 B. W e believe that these precedents, U nited S tates v. Nixon, N ixon v. F itzgerald, and C linton v. Jones, are consistent with the Department’s analysis and conclusion in 1973. The cases embrace the methodology, applied in the OLC memorandum, of constitutional balancing. That is, they balance the constitutional interests under­ lying a claim of presidential immunity against the governmental interests in rejecting that immunity. And, notwithstanding C linton's conclusion that civil litigation regarding the President’s unofficial conduct would not unduly interfere with his ability to perform his constitutionally assigned functions, we believe that C linton and the other cases do not undermine our earlier conclusion that the bur­ dens of crim in al litigation would be so intrusive as to violate the separation of powers. 1. The balancing analysis relied on in the 1973 OLC memorandum has since been adopted as the appropriate mode o f analysis by the Court. In 1996, this Office summarized the principles of analysis for resolving separation of powers issues found in the Court’s recent cases. See The C onstitutional Separation o f P ow ers B etw een the P resid en t a n d Congress, 20 Op. O.L.C. 124, 133-35 (1996). As noted there, ‘ ‘ ‘the proper inquiry focuses on the extent to which [a challenged act] pre­ 16 One final recent precedent m ents bnef m ention, the federal district court’s decision to hold President Clinton in civil contempt for statements made in the course of a deposition taken in the Jones case and to order him to pay expenses (including attorneys’ fees) to the plaintiff and costs to the court. See Jones i\ Clinton, 36 F Supp 2d 1118 (E.D. Ark 1999) This decision was not appealed, and for purposes of our analysis here we assume arguendo that it is correct But a court order cuing a sitting President for civil contempt does not support the proposition that a sitting President can be subject even to cnm inal contempt sanctions, let alone indictment and criminal prosecu­ tion. Civil contem pt differs from criminal contempt because the former is designed to ensure compliance with court orders or to remedy harms inflicted upon another litigant, while cnminal contempt is intended to punish the commis­ sion o f a public w rong See U nited Mine Workers v Bagwell, 512 U.S 821, 826-30 (1994) A civil contempt proceeding is thus not likely to be either as consum ing o f the defendant’s tim e or as detnmental to the defendant’s public standing as a criminal contempt proceeding; that is particularly true when the civil contempt sanction takes the form o f an award o f costs to the court or o th er litigant. Significantly, the distnct court that imposed the contempt citation em phasized the narrow scope of its decision. See Jones, 36 F Supp. 2d at 1125 (explaining lhat “ the Court recognizes that significant constitutional issues w ould anse were this Court to impose sanctions against the President that impaired his decision-making or otherwise impaired him in the performance of his official duties,” and empha­ sizing that “ [n]o such sanction will be im posed” ) The court further noted that, while “ the power [upheld by the Supreme Court in Clinton v. Jones] to determ ine the legality o f the President’s unofficial conduct includes with it the pow er to issue civil contem pt citations and impose sanctions for his unofficial conduct which abuses the judicial process,” i d , the Supreme Court’s decision did not imply the existence of any authonty to impose cnminal sanctions on the President, id. at 1134 n,22 ( “ th e question o f whether a President can be held in criminal contempt of court and subjected to criminal penalties raises constitutional issues not addressed by the Supreme Court in the Jones case” ) For these reasons, this distnct court decision does not affect our analysis of the soundness of the D epartm ent’s 1973 conclusion that it would be unconstitutional to indict or prosecute a President while he remains in office 244 A Sitting President's Amenability to Indictment and Criminal Prosecution vents the Executive Branch from accomplishing its constitutionally assigned func­ tions.’ ” Id. at 133 (quoting A dm inistrator o f G eneral Services, 433 U.S. at 443). The inquiry is complex, because even where the acts of another branch would interfere with the executive’s “ accomplishing its functions,” this “ would not lead inexorably to” invalidation; rather, the Court “ would proceed to ‘determine whether that impact is justified by an overriding need to promote’ ” legitimate governmental objectives. Id. (quoting A dm inistrator o f G eneral Services, 433 U.S. at 443). These inquiries formed the basis for the Court’s analysis in U nited S tates v. Nixon, where the Court employed a balancing test to preserve the opposing interests of the executive and judicial branches with respect to the President’s claim of privilege over confidential communications. The Court’s resort to a bal­ ancing test was quite explicit. See e.g., 418 U.S. at 711-12 (“ In this case we must weigh the importance of the general privilege of confidentiality of Presi­ dential communications in the performance of the President’s responsibilities against the inroads of such a privilege on the fair administration of criminal jus­ tice.” ). In Nixon v. F itzgerald, the Court’s recognition of an absolute presidential immunity from civil suits for damages concerning official conduct also reflected a balance of competing interests. As the Court explained, “ [i]t is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States. But our cases also have established that a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch.” 457 U.S. at 753-54. And in Clinton v. Jones, the Court again acknowledged that “ ‘[e]ven when a branch does not arrogate power to itself . . . the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties.’ ” 520 U.S. at 701 (quoting Loving v. U nited States, 517 U.S. 748, 757 (1996)).17 We now explain why, in light of the post-1973 cases, we agree with the 1973 conclusions that indicting and prosecuting a sitting President would “ prevent the executive from accomplishing its constitutional functions” and that this impact cannot “ be justified by an overriding need” to promote countervailing and legiti­ mate government objectives. 17 Although the Court in Clinton v Jones did not explicitly use the language of “ balancing” to weigh the Presi­ dent’s interests against those o f the civil litigant, the Court did assess both what it saw as the rather minor disrupuon to the President’s office from defending against such civil actions as well as the interests in the pnvate litigant in avoiding delay in adjudication See id. at 707-08 In any event, the Court may not have explicitly invoked the second part o f the analysis (weighing the intrusions on the execuUve branch against the legitimate governmental interests opposed to immunity), because it found the burdens o f civil litigation insufficiently weighty to warrant an extended inquiry. See Administrator o f General Services, 433 U.S at 443 (emphasis added) (explaining that when there is a potential for disruption o f presidential authonty, “ the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned funcuons Only where the potential fo r disruption is present must we then determine whether that impact is jusufied by an overriding need to promote objectives within the constitutional authority o f Congress.” ), cited with approval in Clinton v Jones, 520 U.S. at 701 245 Opinions o f the Office o f Legal Counsel in Volume 24 2. Three types of burdens merit consideration: (a) the actual imposition of a criminal sentence of incarceration, which would make it physically impossible for the President to carry out his duties; (b) the public stigma and opprobrium occasioned by the initiation of criminal proceedings, which could compromise the President’s ability to fulfill his constitutionally contemplated leadership role with respect to foreign and domestic affairs; and (c) the mental and physical burdens of assisting in the preparation of a defense for the various stages of the criminal proceedings, which might severely hamper the President’s performance of his offi­ cial duties. In assessing the significance of these burdens, two features of our constitutional system must be kept in mind. First, the Constitution specifies a mechanism for accusing a sitting President of wrongdoing and removing him from office. See U.S. Const, art. II, §4 (pro­ viding for impeachment by the House, and removal from office upon conviction in the Senate, of sitting Presidents found guilty of “ Treason, Bribery or other high Crimes and Misdemeanors” ). While the impeachment process might also, of course, hinder the President’s performance of his duties, the process may be initiated and maintained only by politically accountable legislative officials. Supplementing this constitutionally prescribed process by permitting the indict­ ment and criminal prosecution o f a sitting president would place into the hands of a single prosecutor and grand jury the practical power to interfere with the ability of a popularly elected President to carry out his constitutional functions. Second, “ [t]he President occupies a unique position in the constitutional scheme.” F itzgerald, 457 U.S. at 749. As the court explained, “ Article II, § 1 of the Constitution provides that ‘[t]he executive Power shall be vested in a Presi­ dent of the United States . . . .’ This grant of authority establishes the President as the chief constitutional officer of the Executive branch, entrusted with super­ visory and policy responsibilities o f utmost discretion and sensitivity.” Id. at 74950. In addition to the grant of executive power, other provisions of Article II make clear the broad scope and important nature of the powers entrusted to the President. The President is charged to “ take Care that the Laws be faithfully executed.” S ee U.S. Const, art. II, §3. He and the Vice President are the only officials elected by the entire nation. S ee id. art. II, § 1. He is the sole official for whose temporary disability the Constitution expressly provides procedures to remedy. S ee id. art. II, § 1, cl. 6; id. amend. XXV. He is the Commander in Chief of the Army and the Navy. See id. art. II, §2, cl. 2. He has the power to grant reprieves and pardons for offenses against the United States. See id. He has the power to negotiate treaties and to receive Ambassadors and other public ministers. S ee id. art. II, §2, cl. 2. He is the sole representative to foreign nations. He appoints all of the “ Judges of the supreme Court” and the principal officers of the government. See id. art. II, § 2, cl. 2. He is the only constitutional officer 246 A Sitting President's Amenability to Indictment and Criminal Prosecution empowered to require opinions from the heads of departments, see id. art. II, § 2, cl. 1, and to recommend legislation to the Congress. See id. art. II, §3. And he exercises a constitutional role in the enactment of legislation through the presen­ tation requirement and veto power. See id. art. I, § 7, els. 2, 3. Moreover, the practical demands on the individual who occupies the Office of the President, particularly in the modem era, are enormous. President Washington wrote that “ [t]he duties of my Office * * * at all times * * * require an unremitting attention,” Brief for the United States as Amicus Curiae in Support of the Petitioner at 11, Clinton v. Jones, 520 U.S. 681 (1997) (No. 95-1853) (quoting Arthur B. Tourtellot, The P residen ts on the P residen cy 348 (1964)). In the two centuries since the Washington Administration, the demands of govern­ ment, and thus of the President’s duties, have grown exponentially. In the words of Justice Jackson, “ [i]n drama, magnitude and finality [the President’s] decisions so far overshadow any others that almost alone he fills the public eye and ear.” Youngstown Sheet & Tube Co. v. Saw yer, 343 U.S. 579, 653 (1952) (Jackson, J., concurring). In times of peace or war, prosperity or economic crisis, and tran­ quility or unrest, the President plays an unparalleled role in the execution of the laws, the conduct of foreign relations, and the defense of the Nation. As Justice Breyer explained in his opinion concurring in the judgment in Clinton v. Jones'. The Constitution states that the “ executive Power shall be vested in a President.” Art. II, § 1. This constitutional delegation means that a sitting President is unusually busy, that his activities have an unusually important impact upon the lives of others, and that his conduct embodies an authority bestowed by the entire American electorate. . . . [The Founders] sought to encourage energetic, vig­ orous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Con­ stitution divides among many. 520 U.S. at 711-12. The burdens imposed on a sitting President by the initiation of criminal proceedings (whether for official or unofficial wrongdoing) therefore must be assessed in light of the Court’s “ long recognition of] the ‘unique position in the constitutional scheme’ that this office occupies.” Id. at 698 (quoting Nixon v. Fitzgerald, 457 U.S. at 749). a. Given the unique powers granted to and obligations imposed upon the President, we think it is clear that a sitting President may not constitutionally be imprisoned. The physical confinement of the chief executive following a valid conviction 247 Opinions o f the Office o f Legal Counsel in Volume 24 would indisputably preclude the executive branch from performing its constitu­ tionally assigned functions. As Joseph Story wrote: There are . . . incidental powers, belonging to the executive depart­ ment, which are necessarily implied from the nature of the func­ tions, which are confided to it. Among these, must necessarily be included the power to perform them, without any obstruction or impediment whatsoever. T he president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge o f the duties of his office . . . . 3 Joseph Story, Com m entaries on the C onstitution o f the U nited States 418-19 (1st ed. 1833) ( q u o ted in Nixon v. F itzg era ld , 457 U.S. at 749).18 To be sure, the Twenty-fifth Amendment provides that either the President him­ self, or the Vice-President along with a majority of the executive branch’s prin­ cipal officers or some other congressionally determined body, may declare that the President is “ unable to discharge the powers and duties of his office,” with the result that the Vice President assumes the status and powers of Acting Presi­ dent. See U.S. Const, amend. XXV, §§ 3, 4. But it is doubtful in the extreme that this Amendment was intended to eliminate or otherwise affect any constitu­ tional immunities the President enjoyed prior to its enactment. None of the contin­ gencies discussed by the Framers of the Twenty-fifth Amendment even alluded to the possibility of a criminal prosecution of a sitting President.19 O f course, it might be argued that the Twenty-fifth Amendment provides a mechanism to ensuring that, if a sitting President were convicted and imprisoned, there could ]8See also A lexander M. Bickel, The Constitutional Tangle, The New Republic, Oct 6, 1973, at 14, 15 (“ In the presidency is embodied the continuity an d indestructibility o f the state It is not possible for the government to function without a President, and the Constitution contemplates and provides for uninterrupted continuity in that office. Obviously the presidency cannot be conducted from jail, nor can it be effecuvely earned on while an incum­ bent is defending him self in a cnminal tnal ” ). ,9 The Framers o f the Twenty-fifth Amendment were prim anly concerned with the possibility that a sitting Presi­ dent might be unable to discharge his duties due to incapacitation by physical or mental illness See generally H earings on Presidential Inability Before th e Subcomm. on Constitutional Amendments o f the Senate Comm on the Judiciary, 88th Cong. (1963), Hearings on Presidential Inability and Vacancies in the Office o f Vice President Before the Subcomm. on Constitutional Amendm ents o f the Senate Comm, on the Judiciary, 88th Cong. (1964); H earings on Presidential Inability Before the House Comm on the Judiciary, 89th Cong. (1965), Hearings on Presi­ dential Inability and Vacancies in the Office o f Vice President Before the Subcomm on Constitutional Amendments o f the Senate Comm, on the Judiciary, 89th Cong. (1965) ( “ 1965 Senate H eanngs” ); Selected Materials on the Twenty-Fifth Am endment, S. Doc. No 9 3 -4 2 (1973) which includes Senate Reports Nos 89-1382 and 89-66 But the am endm ent’s terms “ unable” and “ inability” were not so narrowly defined, apparently out o f a recognition that situations o f inability m ight take vanous forms not neatly falling into categones o f physical or mental illness See, e.g , 1965 Senate H eanngs at 20 ( “ [T ]he intention o f this legislation is to deal with any type of inability, w hether it is from traveling from one nation to another, a breakdown of communications, capture by the enemy or anything that is imaginable. The inability to perform the powers and duties of the office, for any reason is inability under the terms lhat we are discussing ” ) (statement o f Sen Bayh); John D Feerick, The Twenty-fifth Amendment 197 (1976) ( “ A lthough the terms ‘unable’ an d ‘inability* are nowhere defined in either Section 3 or 4 of the Amend­ ment (or in Article II), this was not the result o f an oversight. Rather, it reflected a judgm ent that a ngid constitutional definition was undesirable, since cases of inability could take vanous forms not neatly fitting into such a definition.” ). Thus, while imprisonment appears not to have been expressly considered by the Framers as a form of inability, the language o f the Twenty-fifth Amendment might be read broadly enough to encompass such a possibility 248 A Sitting President's Amenability to Indictment and Criminal Prosecution be a transfer of powers to an Acting President rather than a permanent disabling of the executive branch. But the possibility of Vice-Presidential succession “ hardly constitutes an argument in favor of allowing other branches to take actions that would disable the sitting President.” 20 To rationalize the President’s imprisonment on the ground that he can be succeeded by an “ Acting” replace­ ment, moreover, is to give insufficient weight to the people’s considered choice as to whom they wish to serve as their chief executive, and to the availability of a politically accountable process of impeachment and removal from office for a President who has engaged in serious criminal misconduct.21 While the execu­ tive branch would continue to function (albeit after a period of serious dislocation), it would still not do so as the people intended, with their elected President at the helm.22 Thus, we conclude that the Twenty-fifth Amendment should not be understood sub silentio to withdraw a previously established immunity and authorize the imprisonment of a sitting President. b. Putting aside the possibility of criminal confinement during his term in office, the severity of the burden imposed upon the President by the stigma arising both from the initiation of a criminal prosecution and also from the need to respond to such charges through the judicial process would seriously interfere with his ability to carry out his constitutionally assigned functions. To be sure, in Clinton v. Jones the Supreme Court rejected the argument that a sitting President is con­ stitutionally immune from civil suits seeking damages for unofficial misconduct. But the distinctive and serious stigma of indictment and criminal prosecution imposes burdens fundamentally different in kind from those imposed by the initi­ ation of a civil action, and these burdens threaten the President’s ability to act as the Nation’s leader in both the domestic and foreign spheres. C linton’s rea­ soning does not extend to the question whether a sitting President is constitu­ tionally immune from criminal prosecution; nor does it undermine our conclusion that a proper balancing of constitutional interests in the criminal context dictates a presidential immunity from such prosecution. 20 1 Laurence H. Tnbe, American Constitutional Law §4 -1 4 , al 755 n.5 (3rd ed. 2000) 21 If the President resists the conclusion that he is “ unable” to discharge his public duties, a transition o f power to the Vice President as Acting President depends on the concurrence o f both Houses of Congress by a two-thirds vote But this ultimate congressional decision does not transform the process into a politically accountable one akin to impeachment proceedings, for the situation forcing Congress’s hand would have been triggered by the decision o f a single prosecutor and unaccountable grand jury to initiate and pursue the cnminal proceedings in the first place 22 Although we do not consider here whether an elected President loses his immunity from criminal prosecution if and while he is temporarily dispossessed of his presidential authonty under either §3 or § 4 o f the Twenty-fifth Amendment, structural considerations suggest that an elected President remains immune from cnm inal prosecution until he permanently leaves the Office by the expiration o f his term, resignation, or removal through conviction upon impeachment 249 Opinions of the Office o f Legal Counsel m Volume 24 The greater seriousness of criminal as compared to civil charges has deep roots not only in the Constitution but also in its common law antecedents. Blackstone distinguished between criminal and civil liability by describing the former as a remedy for “ public wrongs” and the latter as a response to “ private wrongs.” 4 William Blackstone, C om m entaries *5. As he explained, “ [t]he distinction of public wrongs from private, of crimes and misdemeanors from civil injuries, seems principally to consist in this: that private wrongs, or civil injuries, are an infringe­ ment or privation of the civil rights which belong to individuals, considered merely as individuals; public wrongs, or crimes and misdemeanors, are a breach and vio­ lation of the public rights and duties due to the whole community, considered as a community, in its social aggregate capacity.” Id. This fundamental distinction explains why a criminal prosecution may proceed without the consent of the victim and why it is brought in the name of the sovereign rather than the person immediately injured by the wrong. The peculiar public opprobrium and stigma that attach to criminal proceedings also explain, in part, why the Constitution pro­ vides in Article III for a right to a trial by jury for all federal crimes, see Lew is v. U n ited S tates, 518 U.S. 322, 334 (1996) (Kennedy, J. concurring), and provides in the Sixth Amendment for a “ speedy and public trial,” U.S. Const, amend. VI, see K lo p fe r v. N orth Carolina, 386 U.S. 213, 222 (1967) (pendency of an indictment “ may subject [the defendant] to public scorn” and “ indefinitely prolong[ j this oppression, as well as the ‘anxiety and concern accompanying public accusation’ ” ) (citation omitted).23 The magnitude of this stigma and suspicion, and its likely effect on presidential respect and stature both here and abroad, cannot fairly be analogized to that caused by initiation of a private civil action. A civil complaint filed by a private person is understood as reflecting one person’s allegations, filed in court upon payment of a filing fee. A criminal indictment, by contrast, is a public rather than private allegation of wrongdoing reflecting the official judgment of a grand jury acting under the general supervision of the District Court. Thus, both the ease and public meaning of a civil filing differ substantially from those of a criminal indictment. Cf. F D IC v. M allen , 486 U.S. 230, 243 (1988) (“ Through the return of the indict­ ment, the Government has already accused the appellee of serious wrong­ doing.” ).24 Indictment alone risks visiting upon the President the disabilities that 23 In K lopfer, the Supreme Court held that the Sixth Amendment right to a speedy tnal is violated by the practice o f having a prosecutor indefinitely suspend a prosecution after a grand jury returns an indictment. One of the purposes o f the speedy tnal nght is to enable the defendant to be freed, as promptly as reasonably possible, from the “ disabling cloud o f doubt and anxiety that an overhanging indictment invanably cam es with it ” 1 Laurence H Tnbe, American Constitutional Law § 4 -1 4 , at 756. Cf In re Winship, 397 U.S. 358, 363 (1970) (“ The accused during a cnminal prosecution has at stake interests o f immense importance, both because of the possibility that he may lose his liberty upon conviction and because o f the certainty that he would be stigmatized by the conviction ” ). 24 In M allen, for example, the Court rejected a due process challenge to a statute authorizing the immediate suspen­ sion for up to 90 days, without a pre-suspension hearing, of a bank officer or director who is indicted for a felony involving dishonesty or breach o f trust. In describing the significance of indictment for purposes of the due process calculus, the Court observed as follows The returning o f the indictment establishes that an independent body has determined that there is probable cause to believe that the officer has committed a crime This finding is relevant in at least two 250 A Sitting President's Amenability to Indictment and Criminal Prosecution stem from the stigma and opprobrium associated with a criminal charge, under­ mining the President’s leadership and efficacy both here and abroad. Initiation of a criminal proceeding against a sitting President is likely to pose a far greater threat than does civil litigation of severely damaging the President’s standing and credibility in the national and international communities. While this burden may be intangible, nothing in the Supreme Court’s recent case law draws into question the Department’s previous judgment that “ to wound [the President] by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs.” OLC Memo at 30. c. Once criminal charges are filed, the burdens of responding to those charges are different in kind and far greater in degree than those of responding to civil litigation. The Court in Clinton v. Jones clearly believed that the process of defending himself in civil litigation would not impose unwieldy burdens on the President’s time and energy. The Court noted that “ [m]ost frivolous and vexatious litigation is terminated at the pleading stage or on summary judgment, with little if any personal involvement of the defendant.” 520 U.S. at 708. Moreover, even if the litigation proceeds all the way to trial, the Court explicitly assumed that “ there would be no necessity for the President to attend in person, though he could elect to do so.” Id. at 692. These statements are palpably inapposite to criminal cases. The constitutional provisions governing criminal prosecutions make clear the Framers’ belief that an individual’s mental and physical involvement and assistance in the preparation of his defense both before and during any criminal trial would be intense, no less so for the President than for any other defendant. The Constitution con­ templates the defendant’s attendance at trial and, indeed, secures his right to be present by ensuring his right to confront witnesses who appear at the trial. See U.S. Const, amend. VI; Illinois v. Allen , 397 U.S. 337, 338 (i970) (“ One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial.” ); see a lso Fed. R. Crim. P. 43(a); U nited States v. G agnon, 470 U.S. 522, 526 (1985) (Due Process Clause also protects right to be present). The Constitution also guarantees the defendant a right to counsel, which is itself premised on the defend­ ant’s ability to communicate with such counsel and assist in the preparation of important ways First, the finding o f probable cause by an independent body demonstrates that the suspen­ sion is not arbitrary Second, the return of the indictment itself is an objective fact that will in most cases raise serious public concern that the bank is not being managed in a responsible manner. 486 U S at 244-45. 251 Opinions o f the Office o f Legal Counsel in Volume 24 his own defense. S ee U.S. Const, amend. VI.25 These protections stand in stark contrast to the Constitution’s relative silence as to the rights of parties in civil proceedings, and they underscore the unique mental and physical burdens that would be placed on a President facing criminal charges and attempting to fend off conviction and punishment. These burdens inhere not merely in the actual trial itself, but also in the substantial preparation a criminal trial demands. It cannot be said of a felony criminal trial, as the Court said of the civil action before it in C linton v. Jones, that such a proceeding, “ if properly managed by the District Court, . . . [is] highly unlikely to occupy any substantial amount of petitioner’s time.” Clinton, 520 U.S. at 702.26 The Court there emphasized the many ways in which a district court adjudicating a civil action against the Presi­ dent could and should use flexibility in scheduling so as to accommodate the demands of the President’s constitutionally assigned functions on his time and energy. S ee id. at 706 (noting that a district court “ has broad discretion to stay proceedings as an incident to its power to control its own docket” ).27 The Court explicitly “ assume[d] that the testimony of the President, both for discovery and for use at trial, may be taken at the White House at a time that will accommodate his busy schedule.” Id. at 691—92. The Court thus concluded that “ [a] 1though scheduling problems may arise, there is no reason to assume that the district courts will be . . . unable to accommodate the President’s needs.” Id. at 709.28 Although the Court determined in Clinton v. Jones that “ [t]he fact that a federal court’s exercise of its traditional Article III jurisdiction may significantly burden the time and attention of the chief Executive is not sufficient to establish a viola­ tion o f the Constitution,” 520 U.S. at 703, this determination must be understood in light of the Court’s own characterizations o f the manageable burdens imposed 25 In theory, o f course, the President could decline to appear at his own criminal tnal, notwithstanding the strong Anglo-American tradition against trials in absentia But availability of this option says little about the constitutional issue, there is no evidence that the Framers intended that the President waive an entire panoply of constitutional guarantees and n sk conviction in order to fulfill his public obligations. 26W ith respect specifically to concerns about mental preoccupation, the Court in Clinton v. Jones “ recogmze[d] that a President, like any other official or private citizen, may become distracted or preoccupied by pending litiga­ tion,” 520 U.S at 705 n.40, but likened this distraction to other “ vexing” distractions caused by “ a variety of demands on their time, . . . som e pnvate, som e political, and some as a result of official duty.” Id As a “ predictive judgm ent,” id. at 702, however, the level o f mental preoccupation entailed by a threat of criminal conviction and imprisonment would likely far exceed that entailed by a private civil action 27 In his opinion concurring in the judgment, Justice Breyer further emphasized the C ourt’s assumptions with respect to the scheduling flexibility properly due the President by the district court He explained that he agreed “ with the majority that the Constitution does not automatically grant the President an immunity from civil lawsuits based upon his private conduct ” 520 U S. at 710. Nevertheless, he emphasized that once the President sets forth and explains a conflict between judicial proceeding and public duties, the m atter changes A t that point, the Constitution permits a judge to schedule a tnal in an ordinary civil damages action (where postponement normally is possible without overwhelming damage to a plaintiff) only within the constraints o f a constitutional principle — a principle lhat forbids a federal judge in such a case to interfere with the President’s discharge o f his public duties. Id. 28 The Court added that, “ [although Presidents have responded to written interrogatories, given depositions, and provided videotaped tn al testimony, no sitting President has ever testified, or been ordered to testify, in open court ” Id. at 692 n 14. In cnrrunal litigation, as compared to civil litigation, however, the presence of the accused is a sina qua non o f a valid trial, absent extraordinary circumstance. 252 A Sitting President's Amenability to Indictment and Criminal Prosecution by civil litigation. By contrast, criminal proceedings do not allow for the flexibility in scheduling and procedures upon which Clinton v. Jones relied. Although the Court emphasized that “ our decision rejecting the immunity claim and allowing the case to proceed does not require us to confront the question whether a court may compel the attendance of the President at any specific time or place,” id. at 691, a criminal prosecution would require the President’s personal attention and attendance at specific times and places, because the burdens of criminal defense are much less amenable to mitigation by skillful trial management. Indeed, constitutional rights and values are at stake in the defendant’s ability to be present for all phases of his criminal trial. For the President to maintain the kind of effec­ tive defense the Constitution contemplates, his personal appearance throughout the duration of a criminal trial could be essential. Yet the Department has consist­ ently viewed the requirement that a sitting President personally appear at a trial at a particular time and place in response to judicial process to raise substantial separation of powers concerns. See Memorandum for Arthur B. Culvahouse, Jr., Counsel to the President, from Douglas W. Kmiec, Assistant Attorney General, Office of Legal Counsel, Re: C onstitutional C oncerns Im plicated b y D em an d f o r P residen tial E vidence in a C rim inal Prosecution (Oct. 17, 1988).29 In contrast to ordinary civil litigation, moreover, which the Court in Clinton v. Jones described as allowing the trial court to minimize disruptions to the Presi­ dent’s schedule, the Sixth Amendment’s guarantee to criminal defendants of a “ speedy and public trial,” U.S. Const, amend. VI, circumscribes the trial court’s flexibility. Once a defendant is indicted, his right to a speedy trial comes into play. See U nited States v. M arion, 404 U.S. 307 (1971) (defendant’s speedy trial right is triggered when he is “ accused” by being indicted). In addition, under the federal Speedy Trial Act, the trial judge’s discretion is constrained in order to meet the statutory speedy trial deadlines. See 18 U.S.C. §§3161-3174 (1994). While a defendant may waive his speedy trial rights, it would be a peculiar con­ stitutional argument to say that the President’s ability to perform his constitutional 29 The Kmiec memorandum explained that “ it has been the rule since the Presidency of Thomas Jefferson lhat a judicial subpoena in a criminal case may be issued to the President, and any challenge to the subpoena must be based on the nature o f the information sought rather than any immunity from process belonging to the President ” See Memorandum for Arthur B Culvahouse, Jr., Counsel to the President, from Douglas W Kmiec, Assistant Attorney General, Office o f Legal Counsel, Re Constitutional Concerns Implicated by Demand fo r Presidential Evidence in a Criminal Prosecution at 2 (Oct. 17, 1988). However, the memorandum proceeded to explain, “ (although there are no judicial opinions squarely on point, historical precedent has clearly established that sitting Presidents are not required to testify in person at cnminal trials.” Id. at 3 (reviewing precedents) The memorandum noted in particular that Attorney General Wirt had advised President Monroe in 1818 that “ [a] subpoena ad testificandum may I think be properly awarded to the President o f the U.S . But if the presence o f the chief magistrate be required at the seat o f government by his official duties, I think those duties paramount to any claim which an individual can have upon him, and that his personal attendance on the court from which the summons proceeds ought to be, and must, o f necessity, be dispensed with . 11 Id at 4 (quoting Opinion of Attorney General Wirt, January 13, 1818, quoted in Ronald D. Rotunda, Presidents and Ex-Presidents as Witnesses. A B n e f Historical Footnote," 1975 U. Ill L. F. J, 6) The memorandum concluded that “ the controlling pnnciple that emerges from the histoncal precedents is that a sitting President may not be required to testify in court at a criminal tnal because his presence is required elsewhere for his ‘official duties’ — or, in the vernacular of the time, required at ‘the seat o f government.’ “ Id at 6 (citations and footnote omitted). 253 Opinions o f the Office o f Legal Counsel in Volume 24 duties should not be considered unduly disrupted by a criminal trial merely because the President could, in theory, waive his personal constitutional right to a speedy trial. The Constitution should not lightly be read to put its Chief Execu­ tive officer to such a choice. In sum, unlike private civil actions for damages — or the two other judicial proc­ esses with which such actions were compared in Clinton v. Jones (subpoenas for documents or testimony and judicial review and occasional invalidation of the President’s official acts, see 520 U.S. at 703-05) — criminal litigation uniquely requires the President’s person al time and energy, and will inevitably entail a considerable if not overwhelming degree o f mental preoccupation.30 Indictment also exposes the President to an official pronouncement that there is probable cause to believe he committed a criminal act, see, e.g., U nited S tates v. R. E n ter­ p rises, Inc., 498 U.S. 292, 297-98 (1991), impairing his credibility in carrying out his constitutional responsibilities to “ take Care that the Laws be faithfully executed,” U.S. Const, art. II, § 3, and to speak as the “ sole organ” of the United States in dealing with foreign nations. U nited States v. C urtiss-W right E xport C o rp., 299 U.S. 304, 319-20 (1936); see a lso C hicago & Southern A ir Lines v. W aterm an S.S. C orp., 333 U.S. 103, 111 (1948) (describing the President “ as the Nation’s organ for foreign affairs” ); U nited States v. Louisiana, 363 U.S. 1, 35 (1960) (“ The President . . . is the constitutional representative of the United States in its dealings with foreign nations.” ). These physical and mental burdens imposed by an indictment and criminal prosecution of a sitting President are of an entirely different magnitude than those imposed by the types of judicial process previously upheld by the Court. It is conceivable that, in a particular set of circumstances, a particular criminal charge will not in fact require so much time and energy of a sitting President so as materially to impede the capacity of the executive branch to perform its constitutionally assigned functions. It would be perilous, however, to make a judg­ ment in advance as to whether a particular criminal prosecution would be a case o f this sort. Thus a categorical rule against indictment or criminal prosecution is most consistent with the constitutional structure, rather than a doctrinal test that would require the court to assess whether a particular criminal proceeding is likely to impose serious burdens upon the President.31 30 W hile illustrating the potentially burdensome nature o f judicial review o f Presidential acts with the “ most dra­ matic exam ple” o f Youngstown Sheet & Tube Co. v Sawyer, 343 U S 579 (1952) (invalidating President Trum an’s order directing the seizure and operation of steel mills), the Court mentioned “ the substantial time that the President must necessarily have devoted to the matter as a result of judicial involvement ” Clinton v Jones, 520 U S at 703. O f course, it is most frequently the case that the President spends little or no time personally engaged in such confrontations, with the task o f defending hjs policies in court falling to subordinate executive branch officials See, e g ., M aeva Marcus, Truman and the S teel Seizure Case 102-77 (1977) (describing in detail Department of Justice attorneys’ involvement in the steel seizure litigation w ithout discussing any role played personally in the litigation by President Truman). Such a routine delegation o f responsibilities is unavailable when the President person­ ally faces cnm inal charges 31 Cf. Clinton v Jones, 520 U.S at 706 ( “ Indeed, if the Framers of the Constitution had thought it necessary to protect the President from the burdens of private litigation, we think it far more likely that they would have 254 A Sitting President’s Amenability to Indictment and Criminal Prosecution 3. Having identified the burdens imposed by indictment and criminal prosecution on the President’s ability to perform his constitutionally assigned functions, we must still consider whether these burdens are “justified by an overriding need to promote” legitimate governmental objectives, Administrator o f General Serv­ ices, 433 U.S. at 443, in this case the expeditious initiation of criminal pro­ ceedings. United States v. Nixon underscored the legitimacy and importance of facilitating criminal proceedings in general. Although Nixon did not address the interest in facilitating criminal proceedings against the President, it is fair to say that there exists an important national interest in ensuring that no person — including the President — is above the law. Clinton v. Jones underscored the legit­ imacy and importance of allowing civil proceedings against the President for unofficial misconduct to go forward without undue delay. Nevertheless, after weighing the interests in facilitating immediate criminal prosecution of a sitting President against the interests underlying temporary immunity from such prosecu­ tion, considered in light of alternative means of securing the rule of law, we adhere to our 1973 determination that the balance of competing interests requires recogni­ tion of a presidential immunity from criminal process. Recognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment.32 The relevant question, therefore, is the nature and strength of any governmental interests in immediate prosecution and punishment. With respect to immediate punishment, the legitimate objectives of retribution and specific deterrence underlying the criminal justice system compete against a recognition of presidential immunity from penal incarceration. The obvious and overwhelming burdens that such incarceration would impose on the President’s ability to perform his constitutionally assigned functions, however, clearly support the conclusion that a sitting President may not constitutionally be imprisoned upon a criminal conviction. See supra note 18 and accompanying text. The public’s general interest in retribution and deterrence does not provide an “ overriding need” for immediate as opposed to deferred incarceration. With respect to immediate prosecution, we can identify three other govern­ mental interests that might be impaired by deferring indictment and prosecution adopted a categorical rule than a rule that required the President to litigate the question whether a specific case belonged in the ‘exceptional case’ subcategory ” ) 32 The temporary nature o f the immunity claimed here distinguishes it from that pressed in Nvcon v. Fitzgerald, which established a permanent immunity from civil suits challenging official conduct. The temporary immunity considered here is also distinguishable from that pressed by the President but rejected in United States v. Nixon, since the claim o f executive privilege justifying the withholding o f evidence relevant to the criminal prosecution of other persons would apparently have suppressed the evidence without any identifiable time limitation The asserted privilege might therefore have forever thwarted the public’s interest in enforcing its cnminal laws See United States v. Nixon, 418 U.S at 713 ( “ Without access to specific facts a cnminal prosecution may be totally frustrated.” ). 255 Opinions o f the Office o f Legal Counsel in Volume 24 until after the accused no longer holds the office of President: (1) avoiding the bar o f a statute of limitations; (2) avoiding the weakening of the prosecution’s case due to the passage of time; and (3) upholding the rule of law. We consider each of these in turn. The interest in avoiding the statute of limitations bar by securing an indictment while the President remains sitting is a legitimate one. However, we do not believe it is of significant constitutional weight when compared with the burdens such an indictment would impose on the Office of the President, especially in light of alternative mechanisms to avoid a time-bar. First, a President suspected of the most serious criminal wrongdoing might well face impeachment and removal from office before his term expired, permitting criminal prosecution at that point. Second, whether or not it would be appropriate for a court to hold that the statute of limitations was tolled while the President remained in office (either as a con­ stitutional implication of temporary immunity or under equitable principles33), Congress could overcome any such obstacle by imposing its own tolling rule.34 At most, therefore, prosecution would be delayed rather than denied. Apart from concern over statutes of limitations, we recognize that a presidential immunity from criminal prosecution could substantially delay the prosecution of a sitting President, and thereby make it more difficult for the ultimate prosecution to succeed.35 In Clinton v. Jones, the Court observed that — notwithstanding the continuation of civil discovery — “ delaying trial would increase the danger of prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party.” 520 U.S. at 707-08. 33 Federal courts have suggested that, in proper circumstances, criminal as well as civil statutes of limitation are subject to equitable tolling. See, e .g , United States v. Midgtey, 142 F.3d 174, 178-79 (3d Cir 1998) ( “ Although the doctrine o f equitable tolling is most typically applied to limitation penods on civil actions, there is no reason to distinguish between the nghts protected by criminal and civil statutes of limitations.” ) (internal quotation omitted); c f United States v. Levine, 658 F.2d 113, 119-21 (3d C ir 1981) (noting that cnminal statutes of limitations have a primary purpose o f providing fairness to the accused, but are “ perhaps not inviolable” and are subject to tolling, suspension, and waiver). Equitable tolling, however, is invoked only spanngly, in the “ rare situation where [it] is demanded by sound legal principles as well as the interests o f justice ” Alvarez-Machain v. United States, 107 F 3d 696, 701 (9th Cir 1996) (tolling two-year limitation period for FTCA actions where plaintiff had been incarcer­ ated for two years) 34 See, e.g , 18 U S C. § 3287 (1994) (suspension of cnminal statutes of limitation for certain fraud offenses against the United States until three years after the termination o f hostilities); United States v. Grainger, 346 U.S 235 (1953) (applying this statutory suspension). W e believe Congress denves such authonty from its general power to “ make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” U S Const, art I, § 8 , cl. 18. Cf. Clinton v. Jones, 520 U .S. at 709 (“ If Congress deems it appropriate to afford the President stronger protection, it may respond with appropriate legislation.” ). Indeed, without deciding the question, we note that Congress may have pow er to enact a tolling provision governing the statute of limitations for conduct that has already occurred, at least so long as the onginal statutory penod has not already expired C f United States v. Pow ers, 307 U S . 214 (1939) (rejecung Ex Post Facto challenge to a prosecution based on a statute extending the life o f a temporary cnm inal statute before its original expiration date); c f, e.g., United States v Grimes, 142 F.3d 1342, 1350-51 (1 1th Cir. 1998) (collecting decisions rejecting Ex Post Facto challenges to statutes extending the limitations period as applied to conduct for which the original penod had not already run), cert denied, 525 U S. 1088 (1999) 35 In theory, the delay could be as long as 10 years, for a President who onginally assumes the office through ascension rather than election and then fiilly serves two elected terms. See U S. Const, amend. XXII, § 1 Given quadrennial elections and the possibility of impeachment, however, it seems unlikely that a President who is senously suspected o f grave cnm inal wrongdoing would rem ain in office for that length of time 256 A Sitting President’s Amenability to Indictment and Criminal Prosecution The Court considered this potential for prejudice to weigh against recognition of temporary immunity from civil process. We believe that the costs of delay in the criminal context may differ in both degree and kind from delay in the civil context.36 But in any event it is our considered view that, when balanced against the overwhelming cost and substantial interference with the functioning of an entire branch of government, these potential costs of delay, while significant, are not controlling. In the constitutional balance, the potential for prejudice caused by delay fails to provide an “ overriding need” sufficient to overcome the jus­ tification for temporary immunity from criminal prosecution. Finally, recognizing a temporary immunity would not subvert the important interest in maintaining the “ rule of law.” To be sure, as the Court has emphasized, “ [n]o man in this country is so high that he is above the law.” United States v. Lee , 106 U.S. 196, 220 (1882). Moreover, the complainant here is the Govern­ ment seeking to redress an alleged crime against the public rather than a private person seeking compensation for a personal wrong, and the Court suggested in Nixon v. Fitzgerald that “ there is a lesser public interest in actions for civil dam­ ages than, for example, in criminal prosecutions,” 457 U.S. at 754 n.37; see id. (describing United States v. Nixon as “ basing holding on special importance of evidence in a criminal trial and distinguishing civil actions as raising different questions not presented for decision” ). However, unlike the immunities claimed in both Nixon cases, see supra note 32, the immunity from indictment and criminal prosecution for a sitting President would generally result in the delay, but not the forbearance, of any criminal trial. Moreover, the constitutionally specified impeachment process ensures that the immunity would not place the President “ above the law.” A sitting President who engages in criminal behavior falling into the category of “ high Crimes and Misdemeanors,” U.S. Const, art. II, §4, is always subject to removal from office upon impeachment by the House and conviction by the Senate, and is thereafter subject to criminal prosecution. 4. We recognize that invoking the impeachment process itself threatens to encumber a sitting President’s time and energy and to divert his attention from 36 On the one hand, there may be less reason to fear a prejudicial loss of evidence in the cnminal context A grand jury could continue to gather evidence throughout the penod o f immunity, even passing this task down to subsequently empaneled grand juries if necessary. See Fed. R. C nm . P 6(e)(3)(C)(m) Moreover, in the event of suspicion of senous wrongdoing by a sitting President, the media and even Congress (through its own investigatory powers) would likely pursue, collect and preserve evidence as well These multiple mechanisms for securing and preserving evidence could mitigate somewhat the effect of a particular witness’s failed recollection or demise By contrast, many civil litigants would lack the resources and incentives to pursue and preserve evidence in the same comprehensive manner On the other hand, the consequences of any prejudicial loss o f evidence that does occur in the cnminaJ context are more grave, given the presumptively greater stakes for both the United States and the defendant in criminal litigation See United States v Nixon, 418 U S at 711-13, 713 (in emphasizing the importance o f access to evidence in a pending cnminal trial, giving significant weight in the constitutional balance to “ the fundamental demands of due process o f law in the fair administration of cnm inal justice” ). 257 Opinions of the Office o f Legal Counsel in Volume 24 his public duties. But the impeachment process is explicitly established by the Constitution. While in some circumstances an impeachment and subsequent Senate trial might interfere with the President’s exercise of his constitutional responsibil­ ities in ways somewhat akin to a criminal prosecution, “ this is a risk expressly contemplated by the Constitution, and it is a necessary incident of the impeach­ ment process.” OLC Memo at 28. In other words, the Framers themselves specifi­ cally determined that the public interest in immediately removing a sitting Presi­ dent whose continuation in office poses a threat to the Nation’s welfare outweighs the public interest in avoiding the Executive burdens incident thereto. The constitutionally prescribed process of impeachment and removal, moreover, lies in the hands of duly elected and politically accountable officials. The House and Senate are appropriate institutional actors to consider the competing interests favoring and opposing a decision to subject the President and the Nation to a Senate trial and perhaps removal. Congress is structurally designed to consider and reflect the interests of the entire nation, and individual Members of Congress must ultimately account for their decisions to their constituencies. By contrast, the most important decisions in the process o f criminal prosecution would lie in the hands of unaccountable grand and petit jurors, deliberating in secret, perhaps influenced by regional or other concerns not shared by the general polity, guided by a prosecutor who is only indirectly accountable to the public. The Framers considered who should possess the extraordinary power of deciding whether to initiate a proceeding that could remove the President — one of only two constitu­ tional officers elected by the people as a whole — and placed that responsibility in the elected officials of Congress. It would be inconsistent with that carefully considered judgment to permit an unelected grand jury and prosecutor effectively to “ remove” a President by bringing criminal charges against him while he remains in office. Thus, the constitutional concern is not merely that any particular indictment and criminal prosecution of a sitting President would unduly impinge upon his ability to perform his public duties. A more general concern is that permitting such criminal process against a sitting President would affect the underlying dynamics of our governmental system in profound and necessarily unpredictable ways, by shifting an awesome power to unelected persons lacking an explicit con­ stitutional role vis-a-vis the President. Given the potentially momentous political consequences for the Nation at stake, there is a fundamental, structural incompati­ bility between the ordinary application of the criminal process and the Office of the President. For these reasons we believe that the Constitution requires recognition of a presidential immunity from indictment and criminal prosecution while the Presi­ dent is in office. 258 A Sitting President's Amenability to Indictment and Criminal Prosecution 5. In 1973, this Department concluded that a grand jury should not be permitted to indict a sitting President even if all subsequent proceedings were postponed until after the President left office. The Court’s emphasis in Clinton v. Jones on the interests of Article III courts in allowing ordinary judicial processes to go forward against a sitting President, and its reliance on scheduling discretion to prevent those processes from interfering with performance of the President’s con­ stitutional duties, might be thought to call this aspect of the Department’s 1973 determination into question. We have thus separately reconsidered whether, if the constitutional immunity extended only to criminal prosecution and confinement but not indictment, the President’s ability to perform his constitutional functions would be unduly burdened by the mere pendency of an indictment against which he would need to defend himself after leaving office. We continue to believe that the better view of the Constitution accords a sitting President immunity from indictment by itself. To some degree, indictment alone will spur the President to devote some energy and attention to mounting his even­ tual legal defense.37 The stigma and opprobrium attached to indictment, as we explained above, far exceed that faced by the civil litigant defending a claim. Given “ the realities of modem politics and mass media, and the delicacy of the political relationships which surround the Presidency both foreign and domestic,” there would, as we explained in 1973, “ be a Russian roulette aspect to the course of indicting the President but postponing trial, hoping in the meantime that the power to govern could survive.” OLC Memo at 3 1.38 Moreover, while the burdens imposed on a sitting President by indictment alone may be less onerous than those imposed on the President by a full scale criminal prosecution, the public interest in indictment alone would be concomitantly weaker assuming that both trial and punishment must be deferred, and weaker still given Congress’ power to extend the statute of limitations or a court’s possible authority to recognize an equitable tolling. Balancing these competing concerns, we believe the better view is the one advanced by the Department in 1973: a sitting President is immune from indict­ ment as well as from further criminal process. Where the President is concerned, 37 C f Moore v. Arizona, 414 U.S. 25, 27 (1973) (indictment with delayed tnal “ may disrupt [a defendant’s] employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends” ) (citations omitted) Indeed, indictment coupled with temporary immunity from further prosecution may even magnify the problem, since the President would be legally stigmatized as an alleged cnminal without any meaningful opportunity to respond to his accusers in a court of law 38 Our conclusion would hold true even if such an indictment could lawfully be filed, and were filed, under seal. Given the indictment’s target it would be very difficult to preserve its secrecy C f United States v Nixon, 418 U S. at 687 n.4 (noting parties’ acknowledgment that “ disclosures to the news media made the reasons for continu­ ance of the protective order no longer meaningful,” with respect to the “ grand jury’s immediate finding relating to the status of the President as an unmdicted co-conspirator” ) Permitting a prosecutor and grand jury to issue even a sealed indictment would allow them to take an unacceptable gamble with fundamental constitutional values 259 Opinions o f the Office o f Legal Counsel in Volume 24 only the House of Representatives has the authority to bring charges of criminal misconduct through the constitutionally sanctioned process of impeachment. in. In 1973, the Department of Justice concluded that the indictment and criminal prosecution of a sitting President would unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties, and would thus violate the constitutional separation of powers. No court has addressed this ques­ tion directly, but the judicial precedents that bear on the continuing vaUdity of our constitutional analysis are consistent with both the analytic approach taken and the conclusions reached. Our view remains that a sitting President is constitu­ tionally immune from indictment and criminal prosecution. RANDOLPH D. MOSS Assistant Attorney General Office o f Legal Counsel 260

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Funding of Grants by the National Institutes of Health The National Institutes o f Health may, consistent with 31 U.S.C. § 1502(a), fund an entire research grant out of a single fiscal year’s appropriations regardless of how long it takes to complete the work under the grant. February 11, 1986 M O p in io n em orandum D epa rtm en t of for th e H ealth and G eneral C o un sel, H u m a n S e r v ic e s This responds to the request of your Office for the Department of Justice’s opinion whether the National Institutes of Health (NIH) may use the appropria­ tion for one fiscal year to fund a grant when the work under the grant may take two or three fiscal years to complete, or whether NIH must fund each year’s work from a separate appropriation. You have asked this question because the Comptroller General has concluded that: the executive branch plan to fund some 646 NIH research grants on a 3-year basis with fiscal year 1985 funds is unlawful, because in the absence of specific statutory authority, such actions violate 31 U.S.C. § 1502(a).1 For the reasons stated below, we believe GAO’s conclusion that NIH may not lawfully fund grants on a multi-year basis is incorrect. We believe, based on the pertinent statutes as well as the principles articulated in prior Comptroller General opinions, that NIH may, under the circumstances outlined below, use the appropriation for one fiscal year to fund the entire cost of a grant made during that fiscal year, regardless of how long it takes to complete work under that grant. I. Statutory Language The Comptroller General’s conclusion is based on 31 U.S.C. § 1502(a), which provides: 1 Letter to Hon. Lowell W eicker, Jr., C hairm an, Subcom m ittee on Labor, Health and H um an Services, and Education o f the Senate Com m ittee on A ppropriations from M ilton J. Socolar, Office o f the C om ptroller G eneral, G eneral A ccounting O ffice (GA O ) (M ar. 18, 1985) (GAO letter). 19 The balance of an appropriation or fund limited for obligation to a definite period is available only for payment of expenses properly incurred during the period of availability or to com­ plete contracts properly made within that period of availability and obligated consistent with § 1501 of this title. However, the appropriation or fund is not available for expenditure for a period beyond the period otherwise authorized by law. The plain language of this provision does not support GAO’s conclusion that NIH may not use funds appropriated for one fiscal year to pay for work to be done in subsequent years under a multi-year grant. Although 31 U.S.C. § 1502(a) makes no reference to grants, the statute does refer to “contracts,” and NIH research grants are a form of contract, as GAO itself has previously recog­ nized.2 Thus, under § 1502(a), the balance of an appropriation “limited for obligation to a definite period” — such as a particular fiscal year — may be used to “complete grants properly made” within that fiscal year and properly obligated consistent with 31 U.S.C. § 1501.3 In other words, § 1502(a) contains two requirements: first, that the grant be “properly made” within the fiscal year being charged and, second, that the grant be “obligated” — i.e., recorded as an obligation — consistent with § 1501. The second of these requirements — that a grant be properly obligated consistent with 31 U.S.C. § 1501 — has no bearing on the general question of NIH funding of multi-year grants, but rather concerns the handling of particular obligations. Moreover, the papers we have reviewed contain no suggestion that the particular NIH grants that gave rise to the NIH-GAO dispute were not obligated consistent with § 1501. Absent facts to the contrary, we assume that issuance of each NIH grant is supported by appropriate documentary evidence and authorized by statute. We also do not believe that GAO’s position is supported by the first require­ ment, i.e., that each grant be “properly made” within the fiscal year charged. The plain meaning of this statutory language is that it must be proper for NIH to make the grant within the fiscal year charged. Applying this interpretation, we see no reason why NIH may not make a multi- year grant during the first year of the grant. Indeed, we do not understand GAO to argue that NIH may not 2 See 50 C om p. G en. 4 7 0 ,4 7 2 (1970) (“th e acceptance o f a grant . . creates a valid contract"). See also 62 C om p. G en. 701, 702 (1983). 3 Section 1501 states in pertinent part: (a) An am ount shall be recorded a s an obligation o f the United States G overnm ent only when supported by docum entary evidence o f — * * * (5) a grant o r subsidy payable — (A ) from appropriations made fo r paym ent of, o r contributions to, amounts required to be p aid in specific am ounts fixed by law or under form ulas prescribed by law; [or] * * * (C) un d er plans approved consistent with and authorized by law . . . . There is no dispute that the N IH grants at issue here were o bligated consistent with these requirem ents. 20 make such grants at that time, but only that NIH must spread the cost over the length of the grant. The plain meaning of the “properly made” language, however, does not require such cost spreading.4 II. The GAO’s Traditional Analysis We also believe that the conclusion expressed in the GAO letter does not follow from its own prior opinions. Over the years, GAO has added a gloss to § 1502, known as the bona fid e need rule. As stated in Principles o f Federal Appropriations Law (GAO 1982) (Principles ), GAO has taken the position that “[a] fiscal year appropriation may be obligated only to meet a legitimate, or bona fid e need arising in the fiscal year for which the appropriation was made.” Id. at 4-9. This principle would appear to require that a multi-year grant meet a bona fid e need of the fiscal year whose appropriation is being charged. The GAO letter states that the NIH grants were improperly made because the work done under them in subsequent years will not meet a bona fid e need of fiscal year 1985. In arriving at this conclusion, GAO cites a series of cases involving funding for “continuous and recurring services [that] are needed on a year-to-year basis,” such as repairs of typewriters and delivery of supplies. Id. at 6-7. However, as HHS points out: Without exception, th[e] decisions [cited by GAO] deal with the provision of materials and services of a routine and recurring nature that should appropriately be funded out of a current year appropriation. None of those decisions involved grants, and none dealt with a discrete project designed to meet a current need the accomplishment of which would take longer than a single fiscal year. Id. at 6. While relying on this strained analogy between grants for scientific study and routine office expenses,5 the GAO letter makes no mention of its extensive body of opinions concerning the application of the bona fide need rule to contracts and grants that cannot be completed in one year. This body of opinions is summarized as follows in the GAO’s Principles, supra, at 4-9,4—10: Bona fid e need questions [frequently] arise where a given trans­ action covers more than one fiscal year. In the typical situation, a contract is made (or attempted to be made) in one fiscal year, with performance and payment to extend at least in part into the 4 G A O ’s position finds no support in case law. M oreover, form er A ttorneys General, in interpreting the predecessor statutes to § 1S02, sim ilarly reached the conclusion that balances o f appropriations may be used “to pay dues upon contracts properly made w ithin the form er [fiscal] year, even if the contracts be not perform ed till w ithin the latter o r current year.” 13 Op. A tt’y Gen. 288, 291 (1870). See also 18 Op. A tt’y Gen. 566, 5 6 9 (1 8 8 7 ). 5The G A O letter itse lf recognizes the w eakness o f this analogy: “ [W]e recognize that there are fundam ental differences betw een a contract for materials or services and a research grant.” 21 following fiscal year. The issue is which fiscal year should be charged with the obligation. In this context, the rule is that, in order to obligate a fiscal year appropriation for payments to be made in a succeeding fiscal year, the contract imposing the obligation'must have been made within the fiscal year sought to be charged, and the contract must have been made to meet a bona fid e need of the fiscal year to be charged. * * * It follows from the above statement of the rule that there are situations in which performance or delivery can extend into a subsequent fiscal year with payment to be charged to the prior fiscal year, as long as the need arose in the fiscal year to be charged. This principle applies even though the funds are not to be disbursed and the exact amount owed by the Government cannot be determined until the subsequent fiscal year. In deciding whether a contract should be charged to the fiscal year in which it is made, GAO has taken the following position: The fact that a contract covers a part of two fiscal years does not necessarily mean that payments thereunder are for splitting between the two fiscal years involved upon the basis of services actually performed during each fiscal year. In fact, the general rule is that the fiscal y e a r appropriation current at the time the contract is m ade is chargeable with paym ents under the con­ tract, although performance thereunder may extend into the ensuing fis c a l year. 23 Comp. Gen. 370,371 (1943) (emphasis added) (quoted in Principles, supra, at 4-13). GAO has issued many opinions reiterating this “general rule.” See, e.g., 56 Comp. Gen. 351, 352 (1977); 50 Comp. Gen. 589, 591 (1971); 21 Comp. Gen. 822, 823-24 (1951); 20 Comp. Gen. 436, 437 (1941); 16 Comp. Gen. 37, 38 (1936). It has likewise made clear “that the question of whether to charge the appropriation current on the date the contract is made, or to charge the funds current at the time services are rendered, depends on whether the services are ‘severable’ or ‘entire.’” Principles, at 4-13. Thus, the “determining factor” for whether a contract (or grant) for a multi-year project is “properly made” is whether the project “represent[s] a single undertaking” and should therefore be viewed as a single project. Id. at 4—14.6 If it is, a bona fid e need for the project arises in the first fiscal year, and that is the appropriation that should be charged. The contract at issue in the 1943 opinion, quoted above, provides an example of a contract that was viewed by GAO as a single project. Under that contract, 6 The G A O le tte r agrees that the fundamental issue is w hether the grants are single research projects or are severable annual projects. 22 individuals were to prepare the ground, plant rubber-bearing plants, and bring them to harvest. GAO concluded that this contract: involved one undertaking, which although extending over a part of two fiscal years, nevertheless was determinable both as to the services needed and the price to be paid therefor at the time the contract was entered into. Such being the case, the fiscal year appropriation current at the time the contract was made was obligated for payments to be made thereunder. 23 Comp. Gen. at 371. GAO therefore rejected a Department of Agriculture voucher that would have divided the cost between the two fiscal years it took to complete the contract. GAO opinions treating a variety of other contracts as single projects are also illustrative. For example, when the Government contracted in 1938 to have cattle inspected and slaughtered if infected with tuberculosis, GAO concluded that the 1938 appropriation should be charged for recompense paid to farmers for diseased animals found and slaughtered in later years. 18 Comp. Gen. 363 (1938). The need to test the animals arose in fiscal year 1938, and therefore any liability under the contract, regardless of when discovered, had to be charged to the 1938 appropriation. Id. at 365. More recently, in 1980, GAO insisted that a 1977 appropriation be charged for the cost of printing a book for the Commission of Fine Arts even though the printing took three years, from 1977 to 1979. 59 Comp. Gen. 386, 387-88 (1980). GAO explicitly rejected the Commission’s argument that the printing costs should be charged against the 1977, 1978, and 1979 GAO appropriations in proportion to the amount of work done each year. GAO said: [T]he fact that performance under a contract extends over more than one fiscal year does not mean that payments are to be split among the fiscal years on the basis of services actually per­ formed. Rather, the general rule is that payments due under a Government contract are to be charged to the fiscal year appro­ priation current at the time the legal obligation arose; that is, the fiscal year in which a bona fide need for the goods or services arose and in which a valid contract or agreement was entered into. 59 Comp. Gen. at 387-88. See also 50 Comp. Gen. 589, 591-92 (1971) (lawyers hired for case must be GAO paid from the appropriation for the year in which they were hired, no matter how protracted the litigation); GAO Opinion B-141839-O.M. (May 2, 1960) (NIH contracts for cancer research with Stanford University are “an entire job” and must be paid out of appropria­ tion for fiscal year in which contracts were signed, “even though the period of performance may extend beyond the fiscal year until the object thereof is accomplished.”); 31 Comp. Gen. 608, 610 (1952) (FY 1952 appropriation reimbursing states for civil defense expenditures charged although states did 23 not buy equipment until subsequent years); 23 Comp. Gen. 82, 83 (1943) (FY 1942 appropriation charged although printing of legal opinions not completed until FY 1943); 21 Comp. Gen. 574, 577 (1941) (FY 1940 appropriation charged although telescopes not shipped until FY 1941); 20 Comp. Gen. 436 (1941) (FY 1940 appropriation charged for cost of move although move not completed until FY 1941). This general rule has also been applied by GAO to grants. For example, GAO concluded in 1940 that all expenses incident to a fellowship granted to South Americans for the study of public health in the United States could be charged “to the fiscal-year appropriation current and available at the time the fellowship is awarded” even though the fellowship extended into the succeed­ ing fiscal year and some expenses, such as travel and maintenance, would not be incurred until the next year. 20 Comp. Gen. 185, 189 (1940). See also GAO Opinion B-37609, 267 Manuscript Series 1039 (1943) (grants for cultural programs with South America);7 GAO Opinion B-34477, 261 Manuscript Series 1960 (1943) (grants to Chinese professors for study in the United States);8 39 Comp. Gen. 317 (1959). In this last opinion, the National Science Foundation sought GAO’s opinion on issues relating to the obligation of certain appropriations. GAO stated: It is explained in the letter that the major portion of funds appropriated to the National Science Foundation is obligated and expended in the form of grants to educational institutions for the purpose of conducting basic scientific research activities. It is stated — and correctly so — that such grants are adminis­ tratively recorded as obligations at the time the funds are for­ mally granted to the grantee by letter, and that there is no deobligation of any unexpended portion of the grants as of June 30 [the end of the fiscal year]. See 31 Comp. Gen. 608. 7 The 1943 opinion statesBy decision o f A p n l 3, 1942, B -2 4 2 7 ,. . . it was held, in substance, that a grant o f funds . . . constituted a legal obligation o f th e am ount granted, even though the final obligation and expenditure for definite projects in th e various American republics w as [sic] to be accom plished by the said corporation in the follow ing fiscal y e a r .. . In the said decision, it was stated: “H aving in view the authority given by the C ongress to the Coordinator to make grants . . . the conclusion appears ju stified that funds so granted . . . were not intended to rem ain subject to the fiscal y ear lim itation o f the appropriations from which the funds were derived, and that, insofar as concerns the C oordinator o f Inter-A m encan A ffairs, such funds are legally obligated w hen form ally granted to an authorized grantee. . . . Cf. 21 C om p. Gen. 498 ” * * * [YJour above-quoted letter appears to be so sim ilar . . as to warrant a sim ilar conclusion — that is, that funds form ally granted or form ally agreed to be furnished to an institution or facility . . . are legally obligated at the time o f th e said grant or agreem ent to grant and properly may be made available and expended thereafter by the grantee institution or facility without regard to the fisca l year limitation o f the appropriations from which the funds were derived. 267 M anuscript Series at 1041, 1042 (citations om itted; em phasis added). 8 “It should seem obvious that all expenses connected with the second phase of the program — the bringing o f C hinese professors to this country — a re chargeable to the funds in question [i.e., to funds from the fiscal year in w hich the grant w as ma d e ] . . . 2 6 1 M anuscript S eries at 1963 24 39 Comp. Gen. at 318 (1959) (emphasis added). See also 48 Comp. Gen. 186, 190 (1968) (FY 1968 appropriation “would be the only appropriation legally available to pay amounts due the grantee as a result of any required upward adjustment” in later years); 20 Comp. Gen. 370, 373 (1941) (grants may be used to pay for courses extending over two fiscal years). GAO has embodied this rule for grants in Principles, supra: In order to properly obligate an appropriation for an assistance program, some action creating a definite liability against the appropriation must occur during the period of the obligational availability of the appropriation. In the case of grants, the obli­ gating action will usually be the execution of a grant agreement. * * * Once the appropriation has been properly obligated, perfor­ mance and the actual disbursement of funds may carry over beyond the period of obligational availability. Id. at 13-16, 13-17 (citations omitted). In sum, GAO’s opinions and Principles hold that § 1502 permits contracts and grants to be charged against the appropriation for a single fiscal year even though payments may extend over more than one year. They also hold that a grant may meet the bona fid e need of an agency for a single fiscal year, even though work under the grant extends over more than one year. Our review of § 1502 and of GAO’s opinions thus leads us to conclude that GAO’s recent determination that NIH may not fund multi-year grants from a single appro­ priation is incorrect. You have also asked whether a certifying officer who does not follow the Comptroller General’s opinion would be liable under 31 U.S.C. § 3528(a)(4).9 We believe that he would not be liable as, in our view, 31 U.S.C. § 1502 permits NIH lawfully to charge the entire cost of a grant against the appropria­ tion for the fiscal year in which the grant was made. Because payment of the grant is not illegal, the provisions of § 3528(a)(4) are not applicable, and we would so inform GAO if they referred the matter to this Department. Finally, you have asked whether charging the grant to the appropriation for one fiscal year would violate.the Anti-Deficiency Act, 31 U.S.C. § 1341.10 As 9 That section provides. (a) A certifying official certifying a voucher is responsible for * * * (4) repaying a paym ent (A ) illegal, improper, or incorrect because o f an inaccurate or m isleading certificate; (B) prohibited by law , or (C) that does not represent a legal obligation under the appropriation or fund involved 1031 U.S.C. § 1341 provides in relevant part: (a) (1) An officer or em ployee o f the U nited Slates G overnm ent or of the District o f Columbia governm ent may not — (A) make o r authorize an expenditure o r obligation exceeding an amount available in an appropriation o r fund for the expenditure o r obligation; or (B) involve either governm ent in a contract o r obligation for the paym ent of money before an appropriation is made unless authorized by law. 25 we have concluded that charging the grant to the appropriation for a single fiscal year is lawful, we do not believe a grant official following our opinion would violate this section. Conclusion For the reasons stated above, we believe that NIH may charge the appropria­ tion for a single fiscal year with the entire cost of a single grant. C harles J. Cooper Assistant Attorney General Office o f Legal Counsel 26

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The President’s Authority to Make a Recess Appointment to the National Labor Relations Board The President may make a recess appointment to the National Labor Relations Board of a person whose term as a Senate-confirmed member expired during the current recess of the Senate. August 31, 2001 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT You have asked whether the President may make a recess appointment to the National Labor Relations Board (“NLRB” or “Board”) of a person whose term as a Senate-confirmed member expired during the current recess of the Senate. We believe that the President may make this recess appointment. Members of the NLRB are appointed to five-year terms by the President, with the Senate’s advice and consent. 29 U.S.C. § 153(a) (2000). As we understand the facts, the member in question had been serving under such an appointment for a term that ended August 27, 2001. The Constitution provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” U.S. Const. art. II, § 2, cl. 3. Here, the member’s term has expired, and the office he previously occupied is vacant. And because there is no bar on reappointment and indeed the statute declares that “[e]ach member of the Board . . . shall be eligible for reappointment,” 29 U.S.C. § 154(a), no question about eligibility to serve is raised by the recess appointment of someone who has been appointed before. The Senate, moreover, is in “recess.” It adjourned August 3, 2001, and will return September 4, 2001. 147 Cong. Rec. 16,196 (2001). “The longstanding view of the Attorneys General has been that the term ‘recess’ includes intrasession recesses if they are of substantial length.” Recess Appointments During an Intrasession Recess, 16 Op. O.L.C. 15 (1992) (“Intrasession Recess Appointments”). The seminal 1921 opinion by Attorney General Daugherty affirmed the President’s power to make a recess appointment in an intrasession recess of twenty-eight days. Executive Power—Recess Appointments, 33 Op. Att’y Gen. 20, 24 (1921). Since then, Presidents have acted on the conclusion that even much shorter intrasession recesses were sufficiently substantial to allow recess appointments. See, e.g., Intrasession Recess Appointments, 16 Op. O.L.C. at 16 (discussing appointments during recesses of fifteen and eighteen days). Although there is scant judicial authority on the President’s power to make recess appointments during intrasession recesses, see Gould v. United States, 19 Ct. Cl. 593, 595 (1884) (accepting such an appointment), the Executive Branch precedents establish that the current recess of thirty-two days could amply support a recess appointment. 182 227-329 VOL_25_PROOF.pdf 192 10/22/12 11:10 AM President’s Authority to Make Recess Appointment to NLRB Finally, the Pay Act, 5 U.S.C. § 5503 (2000), by which Congress has sought to bar the pay of recess appointees in some circumstances, would not apply here. Because the statute applies only “if the vacancy existed while the Senate was in session,” id. § 5503(a), it does not reach a vacancy that first arises during a recess and is filled before the Senate returns. See Memorandum for the Attorney General, from John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Recess Appointments at 7-8 (July 7, 1988); Memorandum for the Attorney General, from Ralph E. Erickson, Acting Assistant Attorney General, Office of Legal Counsel, Re: Recess Appointments at 3 (Dec. 21, 1971). DANIEL L. KOFFSKY Acting Assistant Attorney General Office of Legal Counsel 183 227-329 VOL_25_PROOF.pdf 193 10/22/12 11:10 AM

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December 18, 1978 78-67 MEMORANDUM OPINION FOR THE SPECIAL ASSISTANT TO THE ATTORNEY GENERAL Immigration and Nationality Act (8 U.S.C. § 1182(d)(5))—Cuban Parole Program This responds to your request that we address the following questions: 1. Can a parole visa be revoked once the parolee has entered the United States? If so, under what conditions?1 2. Does the law allow any Cuban who holds dual U.S.-Cuban citizenship to immigrate to the United States with his or her entire family? I. Parole Revocation Parole of aliens into the United States is governed by § 212(d)(5) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(d)(5). That provision reads as follows: The Attorney General may in his discretion parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be re­ turned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States. Thus, when the Attorney General determines that the purposes of parole have been served, parole is revoked and the parolee faces exclusion proceedings as described in §§ 235 and 236 of the Act, 8 U.S.C. §§ 1225, 1226, as would any alien initially applying for admission into the United States. Section 212.5(b) of 'An alien who is paroled into the United States does not receive a visa. A visa is a document issued by a consular officer to immigrants and nonimmigrants coming to the United States. Moreover, a parolee does not ‘‘enter" the United States in a legal sense. See 8 U.S.C. § 1182(d)(5). 299 Title 8 of the Code of Federal Regulations provides that parole shall be terminated and pre-parole status restored upon an alien’s receiving written notice of the following: expiration of his parole period; that the purpose for which the parole was authorized has been accomplished; or when the District Director of the Immigration and Naturalization Service (INS) in charge of the area where the alien is located determines that neither emergency reasons nor public interest warrants his continued presence in the United States. In parole revocation proceedings, parolees are not entitled to the full panoply of procedural rights accorded aliens in deportation proceedings.2 See, Leng May Ma v. Barber, 357 U.S. 185 (1958); Rogers v. Quart, 357 U.S. 193 (1958); Siu Fung Luk v. Rosenberg, 409 F. (2d) 555 (9th Cir. 1969), cert, dismissed, 396 U.S. 801 (1969). Moreover, as stated above, the discretion to terminate parole resides in the Attorney General or his delegates and none of the statutory grounds for deportation under § 241 of the Act, 8 U.S.C. § 1251, need be alleged. However, in one case, United States v. Murjf, 260 F. (2d) 610 (2d Cir. 1958), the court held that the parole of certain refugees may be revoked only if they are accorded the same rights as those given aliens in deportation cases. The court after acknowledging that parolees may, in the normal case, have their parole summarily revoked, held that under the particular facts involved additional procedural protections were required before parole could be revoked. It noted that the circumstances under which the Hungarian refugees there involved were paroled into the United States made the case sui generis. In concluding that the refugees were “ invited” to this country, the court stressed that the President had directed the Attorney General to exercise his § 212(d)(5) parole power to admit a certain number of Hungarian refugees in excess of the visas authorized under the Refugee Relief Act. Id., at 613. It also stressed the fact that Congress had passed legislation endorsing the President’s action. The M urff case seems to stand alone; other courts have consistently distinguished Murjf. See, Ahrens v. Rojas, 292 F. (2d) 406 (5th Cir. 1961) (case involving Cuban refugees); Siu Fung Luk v. Rosenberg, 409 F. (2d) 555 (9th Cir. 1969), cert, dismissed, 396 U.S. 801 (1969). But see the dictum of the Board of Immigration Appeals in Matter o f O, Interim Decision 2614 (1977), suggesting that M urff might have some applicability to parole revocations of certain aliens paroled into the United States as part of the Vietnam evacuation. However, it would seem that even if the M urff rationale were invoked, a court would not necessarily require the full range of procedural protections required in deportation proceedings. See the comments of the Board of Immigration Appeals in Matter o f O, supra. Once parole is revoked, the alien becomes subject to an exclusion proceed­ ing, in which he may seek asylum in the United States as a political refugee. Previously the law was unsettled. See, Sannon v. United States, 421 F. Supp. 1270 (S. D. Fla. 1977) (asylum claims must be heard in exclusion proceed­ 2The procedural rights due aliens subject to deportation proceedings are set forth in § 242 of the Act, 8 U.S.C. § 125;. 300 ings), and Pierre v. United Stales, 547 F. (2d) 1281 (5th Cir. 1977) (asylum claims are not required to be considered in exclusion proceedings).3 However, the issue has been mooted since the Solicitor General represented to the Supreme Court that the Government would grant a hearing on asylum applications in exclusion proceedings. See Memorandum Suggesting Mootness, in Pierre v. United States, O. T. 1977, No. 77-53. The Court granted certiorari, vacated the judgment, and remanded the case to the Court of Appeals to determine the mootness question. Pierre v. United States, 434 U.S. 962 (1977). In the meantime, INS has proposed a regulation to grant hearings on asylum claims in exclusion proceedings. 43 F.R. 48629. Thus, asylum claims must now be heard in an exclusion proceeding. II. Dual United States and Cuban Citizenship A U.S. citizen possessing dual citizenship may leave and reenter the United States without regard to any restrictions applicable to aliens. Cuban residents related to U.S. citizens and who are themselves U.S. citizens at birth by virtue of section 301(a) of the Act, 8 U.S.C. § 1401(a), may also enter the United States without regard to such restrictions. Alien “ immediate relatives” of U.S. citizens may be admitted to this country without regard to quota limitations pursuant to § 201(a) of the Act, 8 U.S.C. § 1151(a). That term includes a U.S. citizen’s children, spouse, and where the U.S. citizen is at least 21 years old, his parents. § 201(b), 8 U.S.C. § 1151(b). Also, it is permissible first to parole these persons into the United States and permit them thereafter to seek adjustment of their status to that of persons admitted for permanent residence. § 245, 8 U.S.C. § 1255. Other members of the U.S. citizen’s family may be paroled into the United States although they may not enjoy the status of immediate relatives of a U.S. citizen. John M . H arm on Assistant Attorney General Office o f Legal Counsel 3The issue in these cases centered on the interpretation of the United Nations Convention and Protocol Relating to the Status of Refugees, 19 U .S.T. 6223, TIAS 6557, to which the United States became a signatory on November 1, 1968. Article I of that document incorporates by reference the 19 5 1 Geneva Convention Relating to the Status of Refugees. Article 1, as modified by the Protocol, defines a refugee as one who— . . . owing to well-founded fear of being prosecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who. not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. Article 33 of the Protocol provides in pertinent part that ''[n]o Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” 301

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December 28, 1979 79-91 MEMORANDUM OPINION FOR THE GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY Polygraph Tests—Central Intelligence Agency— Industrial Polygraph Program— Constitution—Supremacy Clause (Article VI, Clause 2) A member o f your staff has asked us for additional assistance with respect to the Central Intelligence Agency’s (CIA ’s) Industrial Polygraph Program. Implementation o f this program in Massachusetts has been delayed because o f potential conflict with a Massachusetts statute penaliz­ ing an employer who requires employees to take polygraph tests. Mass. Gen. Laws, ch. 149, § 1913. In response to an earlier request, we presented o u r view, in a m em orandum dated December 18, 1978, that a State law prohibiting the adm inistration o f polygraph tests to employees may not legitimately be applied to either the CIA o r its contractors in a m anner that precludes necessary security precautions. We reasoned that the Supremacy Clause would not allow a State law to disrupt Federal programs, even if the State law is applied only to a contractor and not to the Federal Govern­ ment itself. We cautioned, however, that the validity o f application o f State law to Federal contractors is generally dependent on the facts and circumstances o f a particular setting and that prelitigation predictions o f success must be cautious. By letter dated December 20, 1978, we expanded on these views. We repeated that the adm inistration o f polygraph tests to contractor employees who have access to, or are being considered for access to, sen­ sitive com partm ented inform ation would meet the requirements of § 1-811 o f Executive O rder No. 12036, because, in the considered judg­ ment o f CIA officials, the tests are necessary to maintain appropriate standards o f security. We did not suggest that administration o f polygraph tests on a broader basis would be prohibited, but emphasized that the 504 limiting language o f § 1—811 and the potential conflict with State law re­ quired that any such program not sweep more broadly than is deemed nec­ essary by knowledgeable personnel in your agency. We are now informed that the CIA wishes to proceed with the program in Massachusetts. At our request, your staff has provided further explana­ tion o f the CIA ’s need for the Industrial Polygraph Program . The ex­ planation can be summarized as follows: After the discovery o f leaks o f classified docum ents to foreign govern­ ments by a contractor’s employee, the CIA Office o f Security examined security standards governing access to sensitive com partm ented inform a­ tion and determined that the standards were insufficient to protect such in­ formation. Although a contractor’s personnel often have access to infor­ mation not revealed even to CIA staff officers, the industry personnel are not subjected to the rigorous investigation required for staff positions. The Office o f Security concluded that the personal history statem ent, background investigation, and personal interview were insufficient to identify at least three types o f persons: (1) persons with vulnerabilities making them particularly susceptible to recruitment by hostile powers, (2) persons who have already been recruited by such powers but whose personal history statements are otherwise correct, and (3) persons who have developed false identities. Based on substantial experience with polygraphs, the Office o f Security determined that the polygraph device would be an invaluable tool for improving security determinations. A fter successful completion o f a pilot program, the Director o f Central In­ telligence ordered institution o f the Industrial Polygraph Program. The polygraph is not used as a substitute for less intrusive investigative measures. Instead, we have been informed that it is intended to enhance, upgrade, and extend those measures, and is, for these reasons, deemed a necessary adjunct. We have also been told that the examination is n ar­ rowed to the extent necessary to protect SCI inform ation. To ensure that the tests will not be applied to employees indiscriminately, the CIA has identified the categories o f persons who will be required to undergo a poly­ graph test. As we set forth in our previous letters to you, courts reviewing State regulation o f Federal contractors appear to apply the same standard as is applied to regulation o f the Federal Government itself, that is, whether the State statute would defeat a legitimate Federal purpose or frustrate a Federal policy or function. See, United States v. Georgia Public Service Com m ’n, 371 U.S. 285, 292-93 (1963); Leslie Miller, Inc. v. Arkansas, 352 U.S. 186, 190(1956); Railway Mail Assoc, v. Corsi, 325 U.S. 88, 93-96 (1945). The determinative question is whether the State’s regulation o f the contractor conflicts with Federal legislation or with iany legitimate discern­ ible Federal policy. See, Penn Dairies, Inc. v. Milk Control Control Com m ’n, 318 U.S. 257,271 (1943). 505 Protection o f sensitive intelligence inform ation is required by statute and executive order, and clearly is a legitimate Federal function. See 50 U .S.C . §§ 403(d)(3), 403g; Executive O rder No. 12065, 43 F.R. 28949 (1978). It appears to us that the CIA reasonably has determined that im­ plementation o f the Industrial Polygraph Program is necessary to protect adequately SCI inform ation. If adm inistration o f the test to each included category o f employees is reviewed carefully by CIA officials and deter­ mined necessary to protect sensitive inform ation, it is our view that the State o f Massachusetts may not interfere by enforcing its law against the Agency’s contractors. La r r y A . H a m m o n d D eputy Assistant A ttorney General Office o f Legal Counsel 506

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January 19, 1978 78-2 MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION Rebates in Violation of Shipping Act— Applicability of Conspiracy Statute (18 U.S.C. § 371) This responds to your inquiry concerning a group o f cases involving ocean freight rebating. The question is whether the 1972 amendment to § 16 of the Shipping Act of 1916 precludes conspiracy prosecutions under 18 U .S.C . § 371 in these cases. The Fraud Section of the Criminal Division has taken the position that the cases may be prosecuted under the conspiracy statute; the Government Regulations and Labor Sections disagree. Our conclusions may be summarized as follows: As a general matter, a statutory prohibition the violation of which is subject only to a civil penalty may be an “ offense against the United States” for purposes of the conspiracy statute. The 1972 amendment to § 16 does not rule out the possibility o f prosecuting a corporate shipper and a corporate carrier for conspiring to violate paragraph Second of § 16. Congress’ action, as well as principles analogous to those underlying the Wharton rule, indicate, however, that any such prosecution must be based upon more than a minimal or ordinary violation o f the provisions of the Shipping Act. That is, the prosecution must be able to show, that because of its nature or extent, the conduct contemplated by the conspiracy agreement involved harm to society beyond that ordinarily presented by the substantive offense itself. Similarly, depending upon the particular circumstances, cases of the present type may constitute a conspiracy to defraud the Federal M aritime Commission. We are, however, not familiar enough with the facts of the present cases to make specific recommendations. Background 1. Section 16 of the Shipping Act of 1916, as amended, 46 U .S.C . § 815 (1975 Supp.), reads as follows: 5 It shall be unlawful for any shipper, consignor, consignee, for­ warder, broker, or other person, or any officer, agent, or employee thereof, knowingly and willfully, directly or indirectly, by means of false billing, false classification, false weighing, false report of weight, or by any other unjust or unfair device or means to obtain or attempt to obtain transportation by water for property at less than the rates or charges which would otherwise be applicable. It shall be unlawful fo r any common carrier by wafer, or other person subject to this chapter, either alone or in conjunction with any other person, directly or indirectly — First. To make or give any undue or unreasonable preference or advantage to any particular person, locality, or description o f traffic in any respect whatsoever, or to subject any particular person, locality, or description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever . . . . Second. To allow any person to obtain transportation fo r property at less than the regular rates or charges then established and enforced on the line o f such carrier by means o f fa lse billing, false classification, fa lse weighing, fa lse report o f weight, or by any other unjust or unfair device or means. Third. To induce, persuade, or otherwise influence any marine insurance company or underw riter, or agent thereof, not to give a competing carrier by water as favorable a rate of insurance on vessel or cargo, as is granted to such carrier or other person subject to this chapter. Whoever violates any provision o f this section other than paragraphs First and Third h ereo f shall be subject to a civil penalty of not more than $5,000 for each such violation. W hoever violates paragraphs First and Third hereof shall be guilty of a misdem eanor punishable by a fine of not more than $5,000 for each offense. [Emphasis added.] The principal provision discussed herein is paragraph Second. 2. Investigations of ocean freight rebate practices are being conducted by the U.S. Attorneys (regarding several carriers, including United States Lines and Sealand Services, Inc. and Seatrain Lines, Inc.). As a result o f one of these investigations, Sealand has made extensive disclosures to the Federal Maritime Commission concerning rebates amounting to some $19 million and has agreed to pay a civil penalty of almost $5 million. The U .S. Attorney in Newark has forwarded to some 53 other U.S. Attorneys cases involving more than 300 shippers that received the rebates. Your memorandum indicates that: The investigations have disclosed that employees of the carriers would obtain freight business by agreeing with employees or officers of the shippers to pay freight rate rebates. Books and records of the carriers were falsified by identifying rebate payments as, inter alia, 6 “ promotional expenses.” Rebate payments were made by laundering the funds through both domestic and overseas subsidiaries of the carriers, obviously with the assistance and knowledge of employees of the subsidiaries. Discussion 1. This inquiry relates to the possibility o f prosecution under the general conspiracy statute. That statute, 18 U .S.C . § 371, provides as follows: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object o f the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor. It is established that, for purposes o f 18 U .S.C . § 371, the term “ offense against the United States” , is not limited to crim es.1 It also encompasses conduct prohibited by a Federal statute and “ made punishable only by a civil suit for a statutory penalty.” Hunsaker v. United States, infra, at 112. Thus, it may follow that violation of paragraph Second of § 16 as amended, which is punishable by civil penalty, is an “ offense” within the meaning o f 18 U .S.C . § 371.2 The first issue is whether that result is foreclosed, because of the 1972 amendment to § 16. 2. Section 16 o f the Shipping Act prohibits several types of practices by shippers, common carriers by water, and others. Before the 1972 amendment of § 16, violation o f any o f those prohibitions was a misdemeanor punishable by a fine of not more than $5,000.3 The principal effect of the 1972 legislation is to provide, with respect to paragraph Second and all other provisions except paragraphs First and Third, that a violation thereof is no longer a crime, but is subject to a civil penalty.4 The legislative history of the 1972 amendment is brief and contains no 1See U nited States v. H utto, 256 U .S. 524, 529 (1921) (offense o f Federal official’s having financial interest in Indian trade); H unsaker v. United Slates, 279 F. (2d) 111, 112 (9th Cir. I960), cert, denied, 464 U.S. 819 (1960) (Gold Reserve Act); United Stales v. W eisner, 216 F. (2d) 739, 742 (2d Cir. 1954) (Gold Reserve Act). In W eisner, the court rejected the argum ent that 18 U .S .C . § 1, which deals with the classification o f criminal offenses, governed the m eaning of " o ffe n se ” for purposes o f 18 U .S .C . § 371. 2It should be noted that § 16, as am ended, refers to a civil penalty for each "v io latio n ” of paragraph Second. In contrast, with regard to paragraph First and Third, the statute refers to a fine for each " o ffe n se .” There is no reason, how ever, to treat this difference in term inology as decisive regarding the applicability o f 18 U .S .C . I 371. 3See 46 U .S .C . § 815 (1970). ‘See Pub. L. No. 92-416 (1972), § 1(b). 7 mention of the possibility o f prosecutions under the conspiracy statute. Thus, an effort must be made to infer Congress’ intent. The bill which was ultimately enacted differed in certain respects from the version introduced and initially passed by the House of Representatives. As enacted, the law provides that the civil penalties for violation of the Shipping Act “ may be compromised by the Federal Maritime Commission, or may be recovered by the United States in a civil action.” 5 The original House bill contained the change from criminal to civil sanctions, but under that bill 6 the Federal Maritime Commission would have been empowered to assess the civil penalties, subject to review of its action in the courts of appeals. The purpose o f the House bill was to strengthen the ability of the Commission to carry out its regulatory functions under the Shipping Act, in part by amending the penalty provisions in the “ areas that give the Commission most o f its enforcement problems in day-to-day operations.” 7 The House report stated that the then-existing situation (i.e ., investigation of matters by the Commission and referral to the Department of Justice for prosecution) was unsatisfactory because it involved delay and also overlapping of effort on the part of the Commission and the D epartm ent.8 Another disadvantage cited in the House report was that frequently (because o f the time elapsed between the occurrence o f the infraction and the criminal trial) the sentence imposed by the courts was too light and was insufficient to defer future violations.9 Although the House report stressed that the amendments would mean m ore. effective regulation by the Comm ission, it also said that the proposed procedure (assessment o f penalties by the Com m ission, with review in the courts of appeals) “ would, in most instances, reduce the total litigation expenses to both the Government and private parties [and] relieve the overburdened Federal courts . . . . ” 10 The Senate, however, amended the bill so as to restrict the authority of the Commission to seeking to compromise a civil penalty. Thus, under the Senate bill (which was enacted), absent such a compromise, the Commission may refer the matter to the Department of Justice for the bringing of a civil action to recover a penalty. Evidently, the basis for the Senate amendment to the House bill was industry opposition to granting the Commission authority to assess civil penalties.11 The Senate report referred to “ contentions” that such a procedure would be contrary to due process, because the “ nature of the administrative agency process necessarily makes the agency . . . ill-suited for the imposition of punitive sanctions.” 12 sId., § 3; 46 U .S .C . 814 note (1975 Supp.). 6See 117 Cong. Rec. 32415 (1971). 7H. Rept. No. 92-478, 92d C o n g ., 1st sess. (1971), p. 1. ald., p. 2. Vd„ p. 3. '°ld., p. 4. 11See S. Rept. No. 92-1014, 92d C ong., 2d sess. (1972), p. 3. nld., p. 2. 8 In explaining the shift from criminal sanctions to civil, the Senate report noted, as did the House report, the unsatisfactory, time-consuming nature of the then-existing means of enforcem ent.13 Furthermore, the Senate report stated: To change the penalties for violations of these provisions from criminal to civil should make the documentation of violations simpler, thereby expediting final consideration by the Commission, or the Department of Justice and the courts. Since proving a violation would be easier, the threat of imposition of the prescribed penalty should act as a more effective deterrent to further violations. Continuing, the Senate report stated14 that enactment o f the bill . . . should provide the Federal Maritime Commission with needed additional authority to more effectively discharge its statutory • responsibilities, encourage compromised settlements for violations of the shipping statutes, and help to avoid needless litigation in our over-crowed [sic] Federal courts. The legislative history indicates that C ongress’ main purpose in substituting civil sanctions was to enhance enforcement by the Commission. The possibility of bringing conspiracy prosecutions seems consistent with the main purpose of the 1972 amendments. Such prosecutions need not interfere with enforcement by the Commission and, indeed, could be a useful supplement. Still, consideration must be given to other objectives mentioned in the congressional reports. ThesHouse report and, to a lesser extent, the Senate report expressed concern regarding duplication of effort by the Commission and the Department. This problem could be exacerbated if, for example, there should be a conspiracy prosecution in regard to a matter that had already been the subject of a Commission investigation and a civil action for recovery o f a penalty. Both of the reports indicated a desire to avoid increasing the backlog of cases in the Federal courts. This may be some evidence that, except for the means provided in § 16, Congress did not contemplate Federal enforcement in this area. As the Fifth Circuit has pointed o u t,15 the 1972 amendments were clearly not based upon a belief that criminal punishment was too severe. Both committee reports stressed the need for a more effective deterrent. Nonetheless, Congress was also concerned with fairness to the regulated firms and, in particular, with reducing their litigation expense (as well as that of the Government). This is another aspect o f congressional intent that casts doubt on the availability o f conspiracy prosecutions. Finally, it must be noted that Congress could have provided for both civil and l3S. R ept., p. 2. 14I d p. 3. 15United States v. B lue Sea Line. 553 F. (2d) 445, 450 (5th Cir. 1977) (upholding the dismissal o f indictm ents charging pre-1972 rebates in violation of 8 16. paragraph Second). 9 criminal sanctions for violation of the provisions in question, but did not do s o .16 The basic conclusion we draw from the legislative history is that there is no absolute conflict between Congress’ intent in amending § 16 and the bringing o f conspiracy prosecutions in this area. On the other hand, the concerns expressed by the congressional committees with regard to avoiding overlap between the Commission and the Department, fairness to regulated entities, and reducing the burden on the courts are entitled to some weight. Those concerns suggest that if there are to be conspiracy prosecutions related to violations o f § 16 great care must be used in selecting the cases. For reasons discussed below, the same conclusions are suggested by principles analogous to those underlying the W harton rule. .3. The nature o f the W harton rule was thoroughly considered by the Supreme Court in lannelli v. United States, 420 U .S. 770 (1975).17 The Court described the rule by quoting from its original source, W harton’s treatise on criminal law :18 When to the idea of an offense \e.g ., dueling] plurality of agents is logically necessary, conspiracy, which assumes the voluntary accession of a person to a crime of such a character that it is aggravated by a plurality o f agents, cannot be maintained . . . . Had the present issues arisen before the 1972 amendment of § 16— that is, when criminal sanctions were prescribed for conduct such as rebating— it would have been necessary to determine the applicability of the Wharton rule. In our opinion, however, because the substantive violations are no longer crim es, the W harton rule as such does not app ly.19 Nonetheless, since the substantive violations are “ offenses” for the purpose of 18 U .S.C . § 371, it should be proper to consider principles similar to those underlying the W harton rule. In lannelli, the Court stated, 420 U .S ., at 782, that the W harton rule does not rest on principles o f double jeopardy,20 but is merely a “ judicial presum ption, to be applied in the absence of legislative intent to the contrary.” The rule was explained as follows (420 U .S. at 785-86, footnotes omitted): l6For exam ple, w illful violations m ight have been made subject to criminal sanctions. The D epartm ent o f Justice sent a report on the House bill to both the House and the Senate com m ittees. See H. R ept., p. 10; S. R ept., p. 6. The Departm ent stated that it had no objection to enactm ent o f the bill. Its report did not suggest the need to retain criminal sanctions and did not m ention the possibility o f prosecutions under 18 U .S .C . § 371. l7In la n nelli, the C ourt, in a five-to-four decision, sustained convictions for violation o f 18 U .S .C . § 1955, prohibiting large-scale gam bling activities, and for conspiring to com m it that offense. I8420 U .S . at 773. quoting 2 F. W harton, C rim inal L aw § 1604 (12th e d ., 1932) p. 1862. lvO ne indication that the rule applies only when the substantive offense is a crim e is the discussion in la n n elli o f the procedural effect o f the rule. The Court stated, 420 U .S. at 786, footnote 18, that in cases covered by the rule dism issal of the conspiracy charge is not required. The Court added, “ W hen both charges are considered at a single trial, the real problem is the avoidance o f dual punishm ent. T his problem is analogous to that presented by the threat o f conviction for a greater and a lesser included offense, and should be treated in a sim ilar m anner.” 20Bui see footnote 19, supra. 10 W harton’s Rule applies only to offenses that require concerted criminal activity, a plurality of criminal agents. In such cases, a closer relationship exists between the conspiracy and the substantive offense because both require collective criminal activity. The substantive offense therefore presents some of the same threats that the law of conspiracy normally is thought to guard against, and it cannot automatically be assumed that the Legislature intended the conspiracy and the substantive offense to remain as discrete crimes upon consummation of the latter. Thus, absent legislative intent to the contrary, the Rule supports a presumption that the two merge when the substantive offense is proved. [Emphasis as in original.] Here, the question raised is whether violation of § 16, paragraph Second, requires concerted activity. If so, it could be argued, by analogy to the Wharton rule, that Congress did not intend any separate sanction for a two-party conspiracy to commit that offense.21 Under paragraph Second, it is “ unlawful for any common carrier by w ater . . . alone or in conjunction with any other person, directly or indirectly . . . [to] allow any person to obtain transportation for property at less than the regular rates . . . by means of false billing . . . [or] any other unjust . . . m eans.” If this provision is read literally, the minimum number required for violation is one— the carrier.22 (A shipper who knowingly and willfully obtains or attempts to obtain below-standard rates by such false means violates another provision, the initial paragraph of § 16.) In our opinion, however, such analysis is not entirely satisfactory. Logically, it is possible that a carrier could provide transportation at less than the regular rate without the shipper’s realizing that any false or unfair means had been used. Still, it seems reasonable to assume that often the violation would involve concerted action, e .g ., an agreement that the carrier will pay a rebate to the shipper. If so, it may be asserted that the mere existence of some concerted action is not a basis for going beyond the civil penalties prescribed by Congress; this supports our conclusion (derived from the legislative history) that special care should be used in selecting cases to be prosecuted under 18 U.S.C . § 371. 4. Our recommendation is that a distinction be drawn between what might 2lThe W harton rule is subject to several exceptions. One is that a conspiracy prosecution is perm issible when the num ber o f conspirators exceeded the minim um num ber o f persons required for com m ission o f the substantive offense. See. lannelli v. United States, supra, 420 U .S ., at 782, footnote 15. 22The phrase "alo n e or in conjunction with any other person" does not alter our conclusion regarding the m inimum . Cf. M ay v. United States. 175 F. (2d) 994, 1003 (D .C . C ir., 1949), cert, denied, 338 U .S. 830 ( 1949) (conspiracy to com m it offense o f Congressm an’s accepting paym ent for services regarding a claim against the Governm ent); E x parte O 'L eary, 53 F. (2d) 956, 957 (7th C ir., 1931), cert, denied, 283 U .S. 830 (1931) (conspiracy to com m it offense of Federal officer’s receiving a bribe). These cases applied an exception to the W harton rule; this exception perm its a conspiracy prosecution where the substantive offense (e .g .. accepting a bribe) is such that only one o f the parties could com m it it. 11 be called “ ordinary” violations of § 16, paragraph Second, and aggravated cases. Such determinations depend o f course upon the particular facts. Particular care must be given to the bases for treating a conspiracy and a completed substantive offense as separate, that is, the “ distinct kinds of threats to society that the law of conspiracy seeks to av ert.” 23 Factors to be considered include the nature and extent of the conspiracy and the num ber o f parties. For exam ple, whether the agreement relates to an isolated transaction or to a long-continuing series o f transactions. There is no violation of paragraph Second unless false billing or some other unfair means is used. Thus, ordinarily, some concealment will be involved. W hen, however, the parties go to unusual lengths to conceal their conduct (e.g ., the use o f foreign subsidiaries24), there may be special risks to society. Moreover, where such a scheme is agreed upon, there may also be a sound basis for charging a conspiracy to defraud the Federal Maritime Commission.25 Because Congress gave primary responsibility for enforcement to the Commission, consideration should be given to the action (or the position) taken by the Commission. For example, if the question of defrauding the Commission is raised, what is its view regarding the matter? In terms of fairness, it may be more difficult to justify proceeding with a conspiracy charge if, with regard to the underlying conduct, a civil penalty has been paid. O ur approach may be illustrated by the following hypothetical cases: a. In the first hypothetical situation, a carrier and a shipper agree, with respect to a particular shipment or a series o f shipments, that the carrier will pay a rebate to the shipper. It is understood that the rebate will be paid in cash and that the carrier’s books will not disclose the true nature of the payment. The amounts involved are relatively small, and there is no history o f such practices on the part of the parties involved. We question whether a conspiracy prosecution would be appropriate in a case o f this type. The parties could argue, with some force, that their conduct is at most an ordinary violation o f § 16 and that Congress intended use of the sanction o f civil penalties and nothing more. b. In the second hypothetical situation, the Federal Maritime Commission obtains evidence that a carrier may be engaged in paying improper rebates. It warns the carrier that such practices are illegal. Then, the carrier and the shipper enter into a secret agreement for the payment o f rebates. The agreement includes use of an elaborate scheme for making the payments— that is, several stages of laundering are effected, in part, by foreign subsidiaries of the carrier. 23la nnelli v. U nited States, supra, 420 U .S ., at 783 (footnote om itted). “ Because o f our basic conclusion, it is not necessary to discuss the question w hether a carrier can conspire with one (or m ore) o f its subsidiaries. S e e , P erm a L ife M ufflers, Inc. v. International P arts C orp., 392 U .S . 134 (1968) (treble-dam age action under Sherm an Act may be based on a conspiracy between corporate entities with com m on ow nership); Note, Developm ents in the Law-C rim inal C onspiracy, 72 Harv. L. Rev. 920, 1000 (1959). See also Departm ent o f Justice, “ Antitrust G uide for International O perations,’’ (January 26, 1977), p. 12. 25See, H unsaker v. U nited States, supra, 279 F. (2d), at 114. 12 Concerted action of this type would seem to pose special risks of harm to society, e .g ., the risk that the laundering scheme will be used to effect violations of other Federal laws. The action of the shipper and the carrier could properly be regarded as a conspiracy (1) to violate § 16, paragraph Second, and (2) to defraud the Commission. We do not have detailed information regarding the present cases and, accordingly, are unable to make specific recommendations concerning them. We hope that the above discussion will assist you in determining how to proceed. John M . H arm on Assistant Attorney General Office o f Legal Counsel 13

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Authority of the Federal Bureau of Investigation To Override International Law In Extraterritorial Law Enforcement Activities At the direction of the President or the Attorney General, the FBI may use its statutory authority to investigate and arrest individuals for violating United States law, even if the FBI’s actions contravene customary international law. The President, acting through the Attorney General, has the inherent constitutional author­ ity to deploy the FBI to investigate and arrest individuals for violating United States law, even if those actions contravene customary international law. Extraterritorial law enforcement activities that are authorized by domestic law are not barred even if they contravene unexecuted treaties or treaty provisions, such as Article 2(4) of the United Nations Charter. An arrest that is inconsistent with international or foreign law does not violate the Fourth Amendment. June 21, 1989 M e m o r a n d u m O p in io n fo r the Attorney G eneral This memorandum responds to the request o f the Federal Bureau o f Investigation ( “FBI”) that we reconsider our 1980 opinion that the FBI has no authority under 28 U.S.C. § 533(1) to apprehend and abduct a fugi­ tive residing in a foreign state when those actions would be contrary to customary international law. Extraterritorial Apprehension by the Federal Bureau of Investigation, 4B Op. O.L.C. 543 (1980) (the “ 1980 Opinion” or “Opinion”). After undertaking a comprehensive review o f the applicable law, we conclude that the 1980 Opinion erred in ruling that the FBI does not have legal authority to carry out extraterritorial law enforcement activities that contravene customary international law. First, we conclude that, with appropriate direction, the FBI may use its broad statutory authority under 28 U.S.C. § 533(1) and 18 U.S.C. § 3052 to investigate and arrest individuals for violations o f United States law even if those investigations and arrests are not consistent with international law. Second, we conclude that the President, acting through the Attorney General, has inherent constitutional authority to order the FBI to investi­ gate and arrest individuals in a manner that departs from international law. The international law that may be abridged in this manner includes 163 not only customary international law but also Article 2(4) o f the U.N. Charter and other unexecuted treaties or treaty provisions that have not become part o f the domestic law o f the United States. Finally, we reaffirm the conclusion o f the 1980 Opinion that an arrest departing from interna­ tional law does not violate the Fourth Amendment, and we further con­ clude that an arrest in violation o f foreign law does not abridge the Fourth Amendment.1 We caution that this memorandum addresses only whether the FBI has the legal authority to carry out law enforcement operations that contra­ vene international law. It does not address the serious policy considera­ tions that may weigh against carrying out such operations. I. The 1980 Opinion The 1980 Opinion addressed the legal implications o f a proposed oper­ ation in which FBI agents would forcibly apprehend a fugitive in a foreign country that would not consent to the apprehension. That Opinion acknowledges that 28 U.S.C. § 533(1), the statute authorizing FBI investi­ gations, contains no explicit geographical restrictions. It also refers to a previous opinion issued by this Office that concluded that the statute’s general authorization to detect and prosecute crimes against the United States appears broad enough to include such law enforcement activity no matter where it is undertaken.2 4B Op. O.L.C. at 551. The 1980 Opinion asserts, however, that customary and other international law limits the reach o f section 533(1). Under customary international law, as viewed by the 1980 Opinion, it is considered an invasion o f sovereignty for one country to carry out law enforcement activities within another country without that country’s consent. Thus, the Opinion concludes that section 533(1) authorizes extraterritorial apprehension o f a fugitive only where the apprehension is approved by the asylum state. Id. 1The 1980 Opinion concluded that FBI agents who participate in overseas arrests in violation o f inter­ national law might be subject to civil liability Because w e now conclude that FBI agents do have author­ ity to engage in such actions, we do not believe they w ill be subject to civil liability. We do not discuss that issue in this memorandum, however, because the FBI agreed that our opinion concerning the FBI's substantive authority should precede any analysis o f civil liability issues. See Memorandum fo r John O McGinnis, Deputy Assistant Attorney General, O ffice o f Legal Counsel, from Margaret Love, Deputy Associate Attorney General (Mar 15, 1989). Th e 1980 Opinion also addressed several other issues, including whether bringing a fugitive before the court b y forcible methods would impair the court’s pow er to try the fugitive. We agree with the 1980 O pinion’s conclusion that, absent cruel o r outrageous treatment, the fact that the fugitive was brought within the court’s jurisdiction by means o f forcible abduction would not impair the court’s pow er to try the fugitive. See Pnsbie v Colltns, 342 U.S. 519 (1952); K er v. Illinois, 119 U S. 436 (1886), United States v. Toscanino, 500 F.2d 267 (2d Cir 1974). We do not reconsider any issues addressed by the 1980 Opinion that are not specifically discussed in this memorandum. 2 The referenced opinion is a June 8, 1978 Memorandum for the Counselor to the Attorney General, from the Deputy Assistant Attorney General, Office o f Legal Counsel, on FBI investigative activities in a foreign country (the “ 1978 Opinion”) 164 The Opinion supports this conclusion with “two distinct but related lines o f analysis.” Id. at 552. First, citing The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812) (Marshall, C.J.), the Opinion concludes that the authority o f the United States outside its ter­ ritory is limited by the sovereignty o f other nations. The Opinion does not explain the juridical source o f this limitation on the authority o f the United States. In The Schooner Exchange, however, Chief Justice Marshall relies on customary international law for many o f his conclu­ sions, and this part o f the 1980 Opinion appears to suggest that custom­ ary international law imposes absolute jurisdictional limitations on the United States’ lawmaking authority. Second, the Opinion implicitly relies on the principle o f statutory con­ struction that statutes should be construed, when possible, so as to avoid conflict with international law. The Opinion notes that a statute imposing a duty ordinarily is construed to authorize all reasonable and necessary means o f executing that duty. The Opinion concludes that although the law enforcement methods at issue may be necessary to carry out the FBI agents’ duties under section 533(1), those methods are “unreasonable” and hence, unauthorized, if executed in violation o f international law. Thus, the Opinion concludes that without asylum state consent, “the FBI is acting outside the bounds o f its statutory authority when it makes an apprehension o f the type proposed here — either because § 533 could not contemplate a violation o f international law or because the powers o f the FBI are delimited by those o f the enabling sovereign.” Id. at 553. The 1980 Opinion’s impact on the ability o f the United States to execute necessary law enforcement operations may be significant. The reasoning o f the 1980 Opinion would seem to apply to a broad range o f law enforce­ ment activities other than forcible apprehension. United States law enforcement agents frequently are required to travel to foreign countries to conduct investigative activities or to meet foreign informants. Formal consent cannot always be obtained from the foreign government, and indeed, in many cases to seek such consent would endanger both the agents and their investigation. Although such activities are less intrusive than forcible apprehension and removal o f the fugitive, under the 1980 Opinion they nonetheless may be viewed as encroachments on the asy­ lum state’s sovereignty and hence, violations of international law, if not authorized by that state. See Ian Brownlie, Principles o f Public International Law 307 (3d ed. 1979) ( “Brownlie”) ( “Police or tax investi­ gations may not be mounted ... on the territory o f another state, except under the terms o f a treaty or other consent given.”); 6 Marjorie M. Whiteman, Digest of International Law 179-83 (1968) (describing inci­ dents in which American authorities sought and received permission from host country to interview persons held in foreign custody and to examine records). Thus, the 1980 Opinion has the potential to preclude the United States not only from apprehending fugitives in foreign eoun165 tries, but also from engaging in a variety o f more routine law enforcement activities. The United States is facing increasingly serious threats to its domestic security from both international terrorist groups and narcotics traffick­ ers. While targeting the United States and United States citizens, these criminal organizations frequently operate from foreign sanctuaries. Unfortunately, some foreign governments have failed to take effective steps to protect the United States from these predations, and some for­ eign governments actually act in complicity with these groups. Accordingly, the extraterritorial enforcement o f United States laws is becoming increasingly important to the nation’s ability to protect its own vital national interests. II. Analysis A. The Scope o f the F B I’s Statutory Authority The general investigative authority o f the FBI derives from 28 U.S.C. § 533(1), which provides that “ [t]he Attorney General may appoint officials to detect and prosecute crimes against the United States.” This provision was first enacted in 1921 as part o f the Department o f Justice Appropriations Act, ch. 161, 41 Stat. 1367, 1411 (1921). As originally enacted, it also provided that the officials appointed by the Attorney General “shall be vested with the authority necessary for the execution of [their] duties.” Id. This provision was carried forward in successive appropriations acts and received permanent codification in 1966. Pub. L. No. 89-554, § 4(c), 80 Stat. 378, 616 (1966). At that time, the reference to “necessary” authority was dropped as surplusage because “the appoint­ ment o f the officials for the purposes indicated carries with it the author­ ity necessary to perform their duties.” H.R. Rep. No. 901, 89th Cong., 1st Sess. 190 (1965). The FBI’s arrest authority derives from 18 U.S.C. § 3052,3 which pro­ vides: The Director, Associate Director, Assistant to the Director, Assistant Directors, inspectors, and agents o f the Federal Bureau of Investigation o f the Department o f Justice may carry firearms, serve warrants and subpoenas issued under the authority o f the United States and make arrests without warrant for any offense against the United States committed in their presence, or for any felony cog­ nizable under the laws o f the United States if they have rea­ 3 The 1980 Opinion did not discuss section 3052, apparently believing that section 533(1) also provided the authonty fo r the FB I’s pow er to make arrests 166 sonable grounds to believe that the person to be arrested has committed or is committing such felony. We believe, consistent with earlier opinions o f this Office, that sections 533(1) and 3052 authorize extraterritorial investigations and arrests.4 Section 533(1) has been described as granting “broad general investiga­ tive power.” United States v. Marzani, 71 F. Supp. 615, 617 (D.D.C. 1947), aff’d, 168 F.2d 133 (D.C. Cir.), affd, 335 U.S. 895 (1948) (per curiam). Section 3052 confers an equally broad arrest power. Neither statute by its terms limits the FBI’s authority to operations conducted within the United States.5 Moreover, reading these sections as applying extraterritorially accords with Congress’ intent to give certain criminal statutes extraterritorial reach.6 In many statutes, Congress has extended the United States’ substantive criminal jurisdiction extraterritorially. See, e.g., 18 U.S.C. § 844(i) (enacting penalties for destruction o f property used in foreign commerce); 18 U.S.C. § 1116(c) (implementing Con­ vention on the Prevention and Punishment o f Crimes Against Inter­ nationally Protected Persons); 18 U.S.C. § 1203(b)(1) (implementing Hostage Convention); 49 U.S.C. § 1472(1) (enacting penalties for carrying weapons or explosives aboard aircraft). These statutes are enforced principally by the FBI. In order for the FBI to have the authority neces­ sary to execute these statutes, its investigative and arrest authority must have an equivalent extraterritorial scope.7 4 Our 1978 Opinion concluded that section 533(1) authorized extraterritorial investigations, and our 1980 Opinion did not disagree with that conclusion. 6The Court repeatedly has held that Congress’ intent to have its laws apply extraterritorially need not he explicitly stated where the statute involves the sovereign’s ability to defend itself against cnm cs against the sovereign See, e g , Blackmer v United States, 284 U S 421, 437 (1932), United States v. Bowman, 260 U S. 94, 98 (1922). 6Courts frequently have held that Congress has the pow er to criminalize extraterritorial conduct, whether committed by American citizens or foreign citizens, if the conduct (i) threatens the country’s security or interferes with governmental operations or (ii) is intended to have an illegal effect in the United States. See e g , United States v Columba-Colella, 604 F.2d 356, 359 (5th Cir 1979) (collecting cases), United States v King, 552 F2d 833 (9th Cir. 1976), cert denied, 430 U.S. 966 (1977) As the Court held in United States v Bowman, cnminal statutes that are enacted because o f the government’s right to defend itself must apply abroad, otherwise, “to limit their locus to the stnctly territorial junsdiction would ... greatly curtail the scope and usefulness o f the statute ” 260 U.S at 98 Although Bowman involved Congress’ prescnptive power, the Court also applied this pnnciple to an enforcem ent action in Blackmer v. United States Blackmer upheld a contempt citation against an American citizen residing in France who refused to appear as a witness in a criminal trial. The Court noted that the sovereign’s pow er to protect itself would be meaningless if the court’s enforcement powers were not coextensive with the legislature’s pow er to cnminalize the conduct See 284 U.S at 438-39 7Other considerations support this conclusion. As discussed infra at p. 172, a general enabling statute that confers broad authority on an agency to effectuate core executive functions should, absent explicit restnction, be read as conferring on the agency authonty that is commensurate with the inherent ex ec­ utive functions it is effectuating Since the President’s law enforcement authonty has extraterritonal scope, the FBI’s basic statutory authority should be read as having the same scope. It has been suggested to us that because professional bail bondsmen lack power to arrest bail jumpers outside the tem to ry o f the United States, seeKearv. Hilton, 699 F2d 181, 182 (4th Cir 1983), FBI agents Continued 167 B. The Effect o f Customary International Law on the F B I’s Extraterritorial Powers The 1980 Opinion offers tw o bases for its conclusion that customary international law limits the FBI’s extraterritorial powers. First, the Opinion asserts that the FBI’s powers are delimited by those o f the enabling sovereign and that the United States itself lacks the legal author­ ity to take actions that contravene customary international law. The implication is that both Congress and the Executive are powerless to authorize actions that impinge on the sovereignty o f other countries. Second, the Opinion concludes that the FBI’s statutory authority must be read as constricted by the requirements o f customary international law. We conclude that both bases fo r decision are erroneous. 1. Effect on the Sovereign’s Power The 1980 Opinion was clearly wrong in asserting that the United States is legally powerless to carry out actions that violate international law by impinging on the sovereignty o f other countries. It is well established that both political branches — the Congress and the Executive — have, with­ in their respective spheres, the authority to override customary interna­ tional law. Indeed, this inherent sovereign power has been recognized since the earliest days of the Republic. In The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812), Chief Justice Marshall explicitly stated that the United States has the authority to override international law. At issue was whether a French warship was immune from judicial process within the territory o f the United States. Relying on customary international law, Marshall conclud­ ed that it was immune, but stated that the Court had followed these cus­ tomary international law principles only in default o f any declaration by the United States government that they were not to be followed: It seems then to the Court, to be a principle o f public law, that national ships o f war, entering the port o f a friendly power open for their reception, are to be considered as exempted by the consent o f that power from its jurisdiction. 7(.. continued) similarly lack extraterritorial arrest authority, regardless o f whether the arrest violates international law. However, the arrest authority o f professional bail bondsmen is denved from common law, see Taylor v. Taintor, 83 U.S (16 Wall ) 366, 371 (1872), and thus is amenable to judicial limitation; this does not sug­ gest that the F B I’s broad statutory authority under 28 U S C. § 533 and 18 U S.C. § 3052 may be similar­ ly limited Indeed, because responsibility fo r the conduct o f foreign relations is vested in the Executive, not pn vate citizens, it is appropriate that the Executive’s authonty should extend extraterritonally, while the authority o f bail bondsmen should be deem ed restncted to the boundaries o f the United States. 168 Without doubt, the sovereign of the place is capable of destroying this implication. He may claim and exercise jurisdiction, either by employing force, or by subjecting such vessels to the ordinary tribunals. But until such power be exerted in a manner not to be misunderstood, the sover­ eign cannot be considered as having imparted to the ordi­ nary tribunals a jurisdiction, which it would be a breach of faith to exercise. Id. at 145-46 (emphasis added).8 Chief Justice Marshall unequivocally reaffirmed the validity o f this principle in Brown v. United States, 12 U.S. (8 Cranch) 110 (1814), in which he stated: This usage [the rule o f customary international law] is a guide which the sovereign follows or abandons at his will. The rule, like other precepts o f morality, o f humanity, and even o f wisdom, is addressed to the judgment o f the sover­ eign; and although it cannot be disregarded by him without obloquy, yet it may be disregarded. Id. at 128 (emphasis added). The understanding that the political branch­ es have the power under the Constitution to exercise the sovereign’s right to override international law (including obligations created by treaty) has been repeatedly recognized by the courts. See The Paquete Habana, 175 U.S. 677, 700 (1900) (courts must apply customary international law unless there is a treaty or a controlling executive or legislative act to the contrary); The Chinese Exclusion Case, 130 U.S. 581, 602 (1889) (noting that “[t]he question whether our government is justified in disregarding its engagements with another nation is not one for the determination o f the courts”); Diggs v. Shultz, 470 F.2d 461, 466 (D.C. Cir. 1972) (stating that “[u]nder our constitutional scheme, Congress can denounce treaties if it sees fit to do so”), cert, denied, 411 U.S. 931 (1973); Tag v. Rogers, 267 F.2d 664, 668 (D.C. Cir. 1959) (concluding that “ [w]hen, however, a con­ stitutional agency adopts a policy contrary to a trend in international law or to a treaty or prior statute, the courts must accept the latest act o f that 8 In concluding that the United States does not have the legal authonty to assert extraterritorial enforcement jurisdiction in violation o f international law, the 1980 Opinion relies exclusively on a state­ ment in The Schooner Exchange that the “pow er o f a nation within its own territories, must be traced up to the consent o f the nation itself. They can flo w from no other legitimate source.” 11 U S. (7 Cranch) at 136. However, this statement was made in connection with explaining that any restriction on an American court’s jurisdiction over the foreign warship could not flow from an external source, but had to be based on domestic law. Id The statement thus provides no support fo r the 1980 Opinion’s analysis. Moreover, the Opinion ignores the case’s explicit recognition o f the principle that a sovereign has the pow er to act inconsistently with customary international law. 169 agency”), cert, denied, 362 U.S. 904 (1960); The Over the Top, 5 F.2d 838, 842 (D. Conn. 1925) (stating that “[international practice is law only in so far as we adopt it, and like all common or statute law it bends to the will o f the Congress”). Leading commentators also agree that the United States, acting through its political branches, has the prerogative to take action in disregard o f international law.9 Indeed, the sovereign’s authority to override customary international law necessarily follows from the nature o f international law itself. Customary international law is not static: it evolves through a dynamic process o f state custom and practice. States ultimately adhere to a norm o f practice because they determine that upholding the norm best serves their long-run interests and because violation o f the norm may subject the nation to public obloquy or expose it to retaliatory violations. See Brow n v. United States, 12 U.S. (8 Cranch) 110 (1814). States necessari­ ly must have the authority to contravene international norms, however, for it is the process of changing state practice that allows customary international law to evolve.10 As Chief Justice Marshall stated in Brown, “ [t]he rule is, in its nature, flexible. It is subject to infinite modification. It is not an immutable rule o f law, but depends on political considerations which may continually vary.” 12 U.S. (8 Cranch) at 128. If the United States is to participate in the evolution o f international law, the Executive must have the pow er to act inconsistently with international law where necessary. “It is principally the President, ‘sole organ’ o f the United States in its international relations, who is responsible for the behavior o f the United States in regard to international law, and who participates on her 9A s P rofessor Henkin has noted, “the Constitution does not forbid the President (o r the Congress) to violate international law, and the courts w ill give effect to acts within the constitutional powers o f the political branches without regard to international la w ” Louis Henkin, Foreign Affairs and the Constitution 221-22 (1972). The Restatement also expressly maintains that Congress by subsequent enactment may supersede a rule o f international law or international agreement. See Restatement (T h ird ) o f the Foreign Relations Law o f the United States § 11 5 (l)(b ) (1987) ( “Restatement (Third)")- The reporters’ notes also agree that “[t]here is authority for the view that the President has the power, when acting within his constitutional authonty, to disregard a rule o f international law or an agreement o f the United States/ Id § 1 5 (l)(b ) note 3 W hile the Restatement (Third) does not explicitly address whether the President or his delegate may violate international law when acting pursuant to statutory rather than constitutional authonty, this proposition appears to be a direct corollary to the Restatement (Th ird )’s conclusion with respect to legislative authority. I f Congress has the authonty to enact a statute contrary to international law, it may also enact a statute that delegates to the Executive authonty that can be exer­ cised contrary to international law Thus, w e believe that the Restatement (Third) substantially agrees w ith our vie w that the political branches, under the authonty o f either constitutional or statutory domes­ tic law, legally may act in a manner that is inconsistent with international law 10A recent exam ple involves international territory and econom ic sovereignty over the seas In 1945, the contiguous sea outside the tem tonal sea (from three to twelve m iles) was generally considered to be international w aters See Brownlie, supra, at 218. Shortly thereafter, however, a number o f states began asserting 200-rrule fishery conservation zones Id. These claims were, at times, supported by mili­ tary force. Sayre A. Swarztrauber, The Three-Mile L im it o f Territorial Seas 152-77 (1972). The interna­ tional law norm that w aters beyond the tem ton al sea w ere not subject to the junsdiction o f the coastal states collapsed. Restatement (Third), supra, § 5 1 4 (l)(a ). By 1979, there was general acceptance o f an exclu sive econom ic zone o f 200 miles Brownlie, supra, at 219-20. 170 behalf in the indefinable process by which customary international law is made, unmade, remade.” Louis Henkin, Foreign Affairs and the Constitution 188 (1972). Thus, the power in the Executive to override international law is a necessary attribute o f sovereignty and an integral part of the President’s foreign affairs power. Indeed, the absence o f such authority in the Executive would profoundly and uniquely disable the United States — rendering the nation a passive bystander, bound to fol­ low practices dictated by other nations, yet powerless to play a role in shaping those practices.11 Thus, we think it clear that, contrary to the 1980 Opinion’s assertions, customary international law does not impose absolute legal limits on the power of the United States to exercise its law enforcement jurisdiction in foreign countries. Both the Congress and the President, acting within their respective spheres, retain the authority to override any such limita­ tions imposed by customary international law. 2. Effect on the FBI’s Statutory Authority We also believe that the 1980 Opinion erred in concluding that the statutes granting the FBI its investigative and arrest powers must be con­ strued as limited by customary international law. The 1980 Opinion notes that a conventional rule o f statutory construction states that where a statute prescribes a duty, by implication it authorizes all reasonable and necessary means to effectuate that duty. 4B Op. O.L.C. at 552. The Opinion concludes, based principally on the disapproval expressed in several academic journals, that an extraterritorial apprehension is “unreasonable,” and hence, unauthorized, when it violates international law. Id. at 552. In substance, though not explicitly, the 1980 Opinion relies on the canon o f statutory interpretation — enunciated in Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) — that a 11 Because customary international law consists o f evolving state customs and practice, it is an inher­ ently uncertain area o f law, from which clear rules rarely emerge Some extraterritorial law enforcement actions in which the FBI might engage without the foreign country’s consent would not necessarily con­ travene international law. For instance, because sovereignty over territory derives not from the posses­ sion o f legal title, but from the reality o f effective control, see Brownlie, supra, at 117-18, logic would sug­ gest there would be no violation o f international law in exercising law enforcement activity in foreign territory over which no state exercises effective control In addition, if the United States w ere the target o f attacks that violated international law, it would be justified in making a proportional unilateral response, even though its actions might otherwise be contrary to international law See generally Restatement (Third), supra, § 905(1); U.N. Charter art 51 (recognizing a nation’s inherent right o f selfdefense). Other circumstances may exist, as well, under which extraterritorial law enforcem ent is appro­ priate under international law. See generally D Cameron Findley, Abducting Tenvrists f o r Trial in the United States. Issues o f International and Domestic Law, 23 Tex Int’l L J. 1,25 (1988) (discussing other such circumstances) In addition, some unilateral actions by the United States, though inconsistent with pn or international practice, may constitute justifiable efforts by the United States to shape the content o f international norms. Such unilateral actions may be legitimate means by which the United States sig­ nals its rejection o f a putative norm or seeks to gain acceptance fo r an alternative norm. 171 statute should be construed when possible so as not to conflict with international law.12 We believe this line o f analysis is wholly inapposite. First, this canon does not apply to the kind o f statutes at issue here. Sections 533(1) and 3052 are broad authorizing statutes “carrying into Execution” core Executive powers. See U.S. Const, art I, § 8, cl. 18. In cre­ ating the FBI and conferring on it broad investigative and arrest authori­ ty, Congress has created an agency through which the President carries out his constitutionally assigned law enforcement functions. Such gener­ al enabling statutes, in the absence o f an explicit restriction, must be read as conferring on the agency a scope o f authority commensurate with that o f the Executive. Because, as part o f his law enforcement powers, the President has the inherent authority to override customary international law, it must be presumed that Congress intended to grant the President’s instrumentality the authority to act in contravention o f international law when directed to do so. Unless Congress places explicit limitations on the FBI’s investigative and arrest powers, it must be presumed that Congress did not intend to derogate from Presidential authority by limit­ ing those statutory powers.13 This presumption is all the more compelling where, as here, the President’s foreign relations powers are implicated. Courts have long rec­ ognized that delegations o f discretion involving the President’s constitu­ tional powers must be construed broadly, especially in matters involving foreign affairs. See e.g., Dames & Moore v. Regan, 453 U.S. 654, 677 (1981) (Hostage Act and International Emergency Economic Powers Act, 12Actually, M urray v. Schooner Charming Betsy, 6 U S. (2 Cranch) 64 (1804), and Launtzen v Larsen, 345 U S. 571, 578 (1953), are examples o f cases applying the general rule o f construction that prescrip­ tive statutes not expressly purporting to apply extraterritorially ordinarily w ill not be presumed to have such an effe ct The presumption anses in those cases where it is apparent that extraterritorial applica­ tion o f a legal prohibition would gratuitously interfere with the sovereignty o f foreign countries, while not advancing the United States’ interest in preserving its own sovereignty In Schooner Charming Betsy, fo r example, the Court held that a non-intercourse act prohibiting trade between the United States and France could not be applied to justify seizure o f a Danish ship 6 U.S (2 Cranch) at 118. To d o so would have needlessly infringed on Danish sovereignty without protecting the interest o f the United States in prohibiting its own citizens from trading with an enemy. However, such cases certainly cannot be read as suggesting that Congress does not have the power to enact statutes with extraterritorial effect. Nor do such cases apply w here Congress actually intends a statute to have extraterritorial reach See Blackmer v. United States, 284 U S. at 437, United States v. King, 552 F.2d at 850-51. 13The court in United States v Postal, 589 F.2d 862 (5th Cir.), cert denied, 444 U.S. 832 (1979), recog­ nized the need to apply enforcement statutes broadly to effectuate Congress’ intent to reach certain drug trafficking. It held that the statute granting the power to search and seize vessels m all cases in “‘which the United States has jurisdiction,’" for purposes o f enforcing United States law, granted authonty to the Coast Guard to seize vessels in violation o f Article 22 o f the Convention on the High Seas Id. at 884 (quot­ ing 14 U S C. § 89(a) (1976)). (The United States was a party to that Convention, but the Court held it was non-self-executing) The Court based this conclusion on an earlier decision in which it had construed the statute as granting “junsdiction” in the typ e o f case at issue — a conspiracy to violate federal narcotics statutes. Id. at 884. Indeed, since the cou rt viewed the statute as ‘“ intended to give the Coast Guard the broadest authonty available under law,’” it held that a Coast Guard regulation requiring boarding o f ves­ sels only in conform ity with a treaty could not be applied to limit the Coast Guard’s authonty under the statute. Id at 885 (quoting United States v. Warren, 578 F2d 1058, 1068 (5th Cir. 1978) (en banc)) 172 although not providing specific authorization for the President’s actions, are still relevant because they “indicate] congressional acceptance o f a broad scope for executive action” in settling claims against Iran); Sordino v. Federal Reserve Bank of New York, 361 F.2d 106, 111 (2d Cir.), cert, denied, 385 U.S. 898 (1961) (noting that especially with respect to foreign affairs, statutory delegations of power to the President must be read more broadly than other delegations). See Chicago & Southern A ir Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 110-14 (1948) (denying availability o f judicial review over presidential decisions based on statutory authority involving broad foreign policy matters); see also United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (upholding broad statutory delegation that implicated President’s foreign affairs responsibilities).14 In contrast, the 1980 Opinion reverses the presumptions o f our constitu­ tional system. The Opinion imputes to Congress an intent to make the scope o f domestic legal authority for law enforcement operations depend on the vague and fluctuating standards of international custom. In effect, this would delegate to foreign nations the power to define, on a continuing basis, the content o f United States law, according to standards that are out­ side the direct control o f the political branches. Such an intent should not be presumed. To the contrary, Congress must be presumed to entrust such vital law enforcement decisions directly to the democratically accountable President and his subordinates. See Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (holding that it is for the executive branch, not the judiciary, to make policy choices within the ambit o f dele­ gated statutory authority when Congress has not spoken). In enacting sections 533(1) and 3052, Congress was legislating against the background o f the well-recognized principle that international law is part o f the law o f the United States only insofar as it has not been over­ ridden by actions o f the political branches. In The Paquete Habana, Justice Gray stated: International law is part o f our law, and must be ascer­ tained and administered by the courts o f justice o f appro­ priate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling exec­ 14 Two recent cases refusing to apply statutory enforcement jurisdiction abroad are inapposite. See Commodity Futures Tt'ading Comm’n v. Nalias, 738 F.2d 487, 493 (D.C. Cir. 1984) (C F T C could not enforce investigative subpoena on foreign citizen in a foreign nation), FTC v. Compagnie de SamlGobam-Pont-a-Mousson, 636 F.2d 1300, 1324-27 (D C Cir 1980) (F TC could not enforce document sub­ poena on a foreign citizen residing abroad). In each case, the agency whose authority was at issue was an independent agency that exercised statutory authority thought to be shielded from direct presidential control. Thus, the statutory authorities at issue in those cases, unlike those exercised by the FBI, may not have been understood to effectuate directly the Presidents constitutional authority, and thus need not be interpreted as commensurate with that authority. 173 utive or legislative act or judicial decision, resort must be had to the customs and usages o f civilized nations .... 175 U.S. at 700 (emphasis added). Thus, the Court held that United States forces unlawfully had seized Cuban fishing vessels as prizes o f war where such vessels were “exempt by the general consent o f civilized nations from capture, and ... no act o f Congress or order o f the President ha[d] expressly authorized [such an action] to be taken.” Id. at 711. In 1986, the Eleventh Circuit applied The Paquete Habana to uphold executive branch action taken pursuant to a broad statutory delegation in circumstances analogous to those here. In Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir.), cert, denied, 479 U.S. 889 (1986), the issue was whether the United States was authorized to detain indefinitely Cuban aliens who had arrived as part o f the Mariel boatlift, notwithstanding that such a detention violated customary international law. The Attorney General ordered the detention pursuant to 8 U.S.C. § 1227(a), which, like 28 U.S.C. § 533(1) and 18 U.S.C. § 3052, contained a broad grant o f authority to the Attorney General, but did not specifical­ ly authorize indefinite detention.15 With respect to one group o f the Mariel detainees, the court concluded that there was insufficient evi­ dence o f an express congressional intention to override international law. Id. at 1453-54.16 The court found, however, that the Attorney General’s decision to incarcerate them indefinitely constituted a “controlling exec­ utive act” o f the kind required by The Paquete Habana, and the court thus found that the detention was lawful. Id. at 1454. Garcia-Mir therefore may be understood as holding that the Executive acting within broad statutory discretion may depart from customary international law, even in the absence o f an affirmative decision by Gongress that international law may be violated.17Accordingly, we believe that Garcia-Mir provides 15 The relevant portion o f 8 U S.C § 1227(a) provides that u[a]ny alien arriving in the United States w h o is excluded under this chapter, shall be immediately d ep orted ,. . unless the Attorney General, in an individual case, in his discretion, concludes that immediate deportation is not practicable or proper.” 1CAs to another group o f Manel Cubans — those who had been incarcerated continuously since their arrival in the United States — the court concluded that Pub L No. 96-533, tit VII, § 716, 94 Stat. 3131, 3162 (1980), provided sufficient evidence o f congressional intention to override international law. See 788 F.2d at 1453-54 n 9. 17 There are tw o different ways to read the holding in Gaixda-Mir. One is that the Executive has broad discretionary authority, pursuant to general power delegated by statute, to determine whether to act incon­ sistently with international law Certain language in the district court’s decision suggests that it viewed the “controlling executive act” as having been taken pursuant to statutory authorization. See Femandez-Roque v. Smith, 622 F. Supp 887,903 (N D. Ga. 1985) ( “[T]his Court is reluctant to hold that the Attorney General’s involvement in plaintiffs' detention cannot be considered a ‘controlling executive act,’ especially since Congress has delegated to the Attorney General broad discretion over the detention o f unadmitted aliens.”) In affirming, the Eleventh Circuit may have intended to adopt the statutory rationale Alternatively, G arcia -M ir may be understood as holding that the President has inherent constitutional authonty, independent o f the statutory grant o f power, to determine whether to act inconsistently with international law. The Eleventh Circuit quoted a draft o f the Restatement referring to the President Continued 174 additional support for the proposition that broad statutory grants o f Executive authority must be interpreted in light o f the political branches’ inherent power to override international norms.18 In sum, then, we conclude that the FBI has authority under sections 533(1) and 3052 to cany out overseas investigations and arrests that contravene customary international law. Those statutes do not explicitly require the FBI to conform its activities to customary international law, and there is no basis for gratuitously assuming that Congress intended to impose such limitations on the FBI. On the contrary, in view of the President’s authority to override customary international law, it must be presumed that Congress granted the FBI commensurate statutory authority.19 17(...continued) “acting within his constitutional authonty” in support o f its holding, see 788 F.2d at 1454-55, and it may therefore have been relying on the President’s inherent constitutional authority This is the interpretation o f G aivia-M ir adopted by the Restatement (Third), supra, § 115, note 3, and particularly by the C hief Reporter. See Louis Henkin, The Constitution and United States Sovereignty A Century o f Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 883-86 (1987) ( “ Henkin”). We think that the decision in Garcia-M ir is correct under either interpretation Professor Henkin disagrees with the result in Garcia-M ir because he does not believe that the President has an inherent constitutional authority to exclude aliens. See id at 884 n 131. We disagree on this specific point with Professor Henkin. See United States ex rel Knaujfv. Shaughnessy, 338 U S. 537, 543 (1950) ( “[T]h e pow er o f exclusion o f aliens is also inherent in the executive department o f the sov­ ereign ..”); see also Nishimura Ekiu v. United Stales, 142 U S. 651,659 (1892). In any event, this debate pertains only to the particular issue in Garcia-Mir, it does not go to the basic question o f whether the President has inherent constitutional authonty to violate customary or other international law — a proposition with which both the Restatement (Third) and Professor Henkin agree. Restatement (Third), supra, § 115, note 3; Henkin, supra, at 882 ( “Thus, a domestic court espousing this view would not, fo r example, eryoin the President from directing United States officers to overfly another country’s tem tory without that country’s con sen t... or to kidnap a wanted cnminal from a foreign country . (but] would have to accept such directives as an exercise by the President o f the prerogative o f the United States to take such measures regardless o f its international obligations.”). 18Recent legislation reflects Congress’ intent that the United States be able to exercise its law enforce­ ment powers abroad when necessary to counter international terrorism. For instance, in introducing leg­ islation (now codified at 18 U S C § 2331) to criminalize murder and other acts against U S. nationals committed abroad, Senator Specter noted that In many cases, the terronst murderer will be extradited or seized with the cooperation o f the government in whose junsdiction he or she is found Yet, if the terrorist is hiding in a country like Lebanon, w here the government, such as it is, is powerless to aid in his removal, or in Libya, where the Government is unwilling, we must be willing to apprehend these cnminals ourselves and bnng them back fo r tnal 131 Cong Rec. 18,870 (1985) 19We do not here discuss limitations on the scope o f the FBI’s authonty for such actions that may be denved from other statutes We know o f no provisions by which Congress generally has prohibited the use o f agents to enforce United States laws contrary to pnnciples o f customary international law. We believe, however, that such provisions would have to be quite explicit before they would be so construed, because the extratem tonal enforcement o f United States laws relates to tw o areas o f the President’s con­ stitutional authority — the conduct o f foreign relations and his duty to execute the laws See Youngstown Sheet & Tube Co v Sawyer, 343 U S. 579, 645 (1952) (Jackson, J., concum ng) ( “I should indulge the widest latitude o f interpretation to sustain [the President’s] exclusive function to command the instru­ ments o f national force, at least when turned against the outside world for the secunty o f our society.”). For example, w e do not believe that the Mansfield Amendment circumscnbes the FBI’s authonty to make arrests abroad fo r violations o f United States anti-drug laws, because its restrictions relate solely to United States participation in operations to enforce foreign anti-dmg laws See 22 U S C § 2291(c). 175 C. The President’s Constitutional Power to Authorize Actions Inconsistent with Customary International Law We believe that the 1980 Opinion also erred because it failed to con­ sider the President’s inherent constitutional power to authorize law enforcement activities. Pursuant to the constitutional command to “take Care that the laws be faithfully executed,”20 the President has the power to authorize agents o f the executive branch to engage in law enforcement activities in addition to those provided by statute. The Court so held in In re Neagle, 135 U.S. 1 (1890). There, the life o f Justice Field had been threatened, and as a result, the Attorney General assigned a Deputy United States Marshal to accompany the Justice. Id. at 42-52. While performing the duties assigned to him by the Attorney General, Neagle shot and killed a man whom he believed was about to attack Justice Field. Id. at 52-53. Neagle was arrested and charged with murder by California authorities. The Court assumed that the authorizing statute did not empower the U.S. Marshals or their deputies to accompany and guard Supreme Court Justices as they traveled through their circuits. Id. at 58. Nevertheless, the Court held that the constitutional command that the President “shall take Care that the laws be faithfully executed” gave him the power to authorize agents o f the executive branch to take enforcement actions in addition to those provided by statute. Id. at 63-64. The Court concluded that the President’s constitutional duty is not limited to the enforcement o f acts o f Congress or treaties according to their terms, but that it extends also to the “rights, duties and obligations growing out o f the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution.” Id. at 64-67. The Court thus concluded that the President had the legal author­ ity, acting through the Attorney General, to direct the Deputy Marshal’s actions, and that the authority overrode any contrary California law. Id. at 67-68.21 20 U.S. Const, art. n, § 3. 21 See also United Stales ex ret Martinez-Angosto v. Mason, 344 F.2d 673, 688 (2d Cir. 1965) (Friendly, J., concurring) (noting that congressional silence did not preclude the inference that the President has the p o w e r to decide w hether to follow provisions o f a non-self-executing treaty) Durand v. Hollins, 8 F. Cas. I l l (C C.S D N Y. 1860) (N o . 4,186) is also apposite. In 1854, Lieutenant Hollins o f the U.S.S. Cyane ordered the bombardment o f Greytown, Nicaragua in retaliation for the fail­ ure o f local authorities to make reparation fo r a mob attack on the United States Consul. Hollins was then sued for the value o f property alleged to have been destroyed in the bombardment Justice Nelson, on circuit, held Hollins not liable on the grounds that he was acting pursuant to orders o f the President and the Secretary o f the Navy He ruled that A s the Executive head o f the nation, the President is made the only legitimate organ o f the general government, to open and carry on correspondence o r negotiations with foreign nations, in matters concerning the interests o f the country or o f its citizens It is to him, also, that citizens abroad must look fo r protection o f person and o f property, and fo r the faithful Continued 176 The Neagle Court pointed particularly to the President’s power in the area o f foreign affairs as an area in which there exists considerable inher­ ent presidential power to authorize action independent o f any statutory provision. See id. at 64. The Court’s decision reflects the fundamental principle stated by John Jay that “ [a]ll constitutional acts o f power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature.” The Federalist No. 64, at 394 (John Jay) (Clinton Rossiter ed., 1961). This Office also has previously opined that the President, pursuant to his inherent constitutional authority, can authorize enforcement actions independent o f any statutory grant o f power. See Memorandum for Wayne B. Colbom, Director, United States Marshals Services, from Leon Ulman, Deputy Assistant Attorney General, Office o f Legal Counsel, Re: Law Enforcement Authority o f Special Deputies Assigned to D O T to Guard Against A ir Privacy (Sept. 30, 1970) (the “ 1970 Opinion”). In that opinion, this Office ruled that the President’s inherent constitutional authority permitted Department o f Trans­ portation personnel to be deputized as Deputy U.S. Marshals and autho­ rized to carry firearms, to take necessary action to prevent air piracy while an American carrier is in flight anywhere in the world, and to make arrests for violations o f United States laws regarding air piracy and related offenses. Id. at 1. The opinion recognized that there was no statute expressly authorizing this protection and enforcement action. Id. at 2.22 Relying on In re Neagle and In re Debs, 158 U.S. 564, 581 (1895), however, it concluded that “since the United States has jurisdic­ tion to punish air piracy and related offenses, it likewise has inherent authority to take reasonable and necessary steps to prevent these offenses.” 1970 Opinion at 2-3. In its analysis, the 1970 Opinion noted that “the exercise o f their authority ... could give rise to conflicts with the countries involved o f an international nature. But this would not, in 21 ( continued) execution o f the laws existing and intended for their protection. For this purpose, the whole executive pow er o f the country is placed in his hands, under the constitution, and the laws passed in pursuance thereof; and different departments o f government have been organized, through which this power may be most conveniently executed, whether by negotiation or by force — a department o f state and a department o f the navy. Now, as respects the interposition o f the executive abroad, for the protection o f the lives or property o f the citizen, the duty must, o f necessity, rest in the discretion o f the president Acts o f lawless violence, or o f threatened violence to the citizen or his property, cannot be anticipated and provided for, and the protection, to be effectual or o f any avail, may, not unfrequently, require the most prompt and decided action. Under our system o f Government, the citizen abroad is as much entitled to protection as the citizen at home The great object and duty o f government is the protection o f the lives, liberty, and property o f the people com ­ posing it, whether abroad or at home, and any government failing in the accomplishment o f the object, or the performance o f the duty, is not worth preserving Id at 112 22The authonzing statute o f the U S. Marshals, 18 U S.C. § 3053, like 28 U S C § 33(1) and 18 U S.C 3052, contains no express extraterritorial arrest or enforcement authonty 177 our view, affect the legality o f their actions under U.S. domestic law.” Id. at 6.23 Accordingly, we believe that even if sections 533(1) and 3052 are con­ strued as authorizing enforcement action only within the limits imposed by international law, the President retains the constitutional authority to order enforcement actions in addition to those permitted by statute. As discussed supra pp. 168-71, this constitutional authority carries with it the pow er to override customary international law. Thus, Executive agents, when appropriately directed pursuant to the President’s constitu­ tional law enforcement authority, may lawfully carry on investigations and make arrests that contravene customary international law. D. The Status o f Article 2 (4 ) o f the U.N. Charter and Other Unexecuted Treaties or Treaty Provisions To this point, we have discussed the Executive’s power to override cus­ tomary international law. Another issue is whether Article 2(4) o f the U.N. Charter would prohibit the Executive as a matter o f domestic law from authorizing forcible abductions absent acquiescence by the foreign government.24 We do not believe that it does. The text o f Article 2(4) does not prohibit extraterritorial law enforce­ ment activities, and we question whether Article 2(4) should be con­ strued as generally addressing these activities. Nevertheless, even if Article 2(4) were construed as prohibiting certain forcible abductions, we believe that the President has the authority to order such actions in con­ travention o f the Charter. Treaties that are self-executing can provide rules o f decision for a United States court,25 see Cook v. United States, 288 U.S. 102, 112 (1933), but when a treaty is non-self-executing, it “addresses itself to the politi­ cal, not the judicial department; and the legislature must execute the [treaty] before it can become a rule for the Court.” Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) (Marshall, C.J.). Accordingly, the decision whether to act consistently with an unexecuted treaty is a political issue 23 We understand that as a matter o f international law the United States may exercise jurisdiction on United States carriers flying over foreign territories Convention on Offenses and Certain Other Acts Com m itted On Board Aircraft, Sept 14, 1963, art. 3, 20 U S.T. 2941, 2944 The 1970 Opinion, however, did not rely on the Convention and, to the contrary, appeared to assume that exercise o f such junsdiction would be view ed as infringing on the sovereignty o f other nations, 24A rticle 2 (4 ) provides: A ll M em bers shall refrain in their international relations from the threat or use o f force against the tem toria l integnty or political independence o f any state, or in any other manner inconsistent with the Purposes o f the United Nations. U.N. Charter, art 2, U 4. 25See Restatem ent (Th ird ), supra, § 111, introductory note (declaring that “ [ujnder the Supremacy Clause, self-executed treaties concluded by the United States becom e law o f the United States”), id, § 111, com m ent h (noting that unexecuted treaty does not furnish a rule o f decision in the United States). 178 rather than a legal one,26 and unexecuted treaties, like customary inter­ national law, are not legally binding on the political branches. The President, acting within the scope o f his constitutional or statutory authority, thus retains full authority to determine whether to pursue action abridging the provisions o f unexecuted treaties.27 We agree with the 1980 Opinion that Article 2(4) is not self-executing.28 4B Op. O.L.C. at 548. See also Sei F u jii v. State, 242 P.2d 617, 620 (C a l 1952) (human rights provisions o f U.N. Charter not self-executing); Pauling v. McElroy, 164 F. Supp. 390, 393 (D.D.C. 1958), affd, 278 F.2d 252 (D.C. Cir.), cert, denied, 364 U.S. 835 (1960) (finding other sections of Charter not self-executing). Article 2(4) relates to one o f the most funda­ mentally political questions that faces a nation — when to use force in its international relations. For these reasons, we conclude that as a matter o f domestic law, the Executive has the power to authorize actions incon­ sistent with Article 2(4) o f the U.N. Charter.29 E. The President’s Ability to Delegate to the Attorney General the Power to Authorize Enforcement Actions Inconsistent with International Law Even though the Constitution vests the “executive power” in the President, see U.S. Const, art. II, § 1, we do not believe that the President’s statutory or constitutionally based Executive power to override custom­ ary or other international law can be exercised only by him. Rather, we believe that this Executive power can be exercised by the Attorney General as well, and that this conclusion obtains regardless o f whether 26O f course, there may be significant political reasons for not abridging an unexecuted treaty, ju st as the President may decide it is politically unwise to act inconsistently with customary international law. Such political decisions necessarily depend on the facts o f each case, and w e do not address their rami­ fications here. 27As discussed above, law enforcement activities outside the United States implicate the President’s constitutional authority to conduct the international relations o f the United States and to execute our laws Pursuant to these constitutional authorities, the President has the pow er to decide whether o r not to operate within the terms o f an unexecuted treaty If the President acts inconsistently with the terms o f a treaty, the treaty is not automatically terminated. It may simply mean that the treaty is rendered inop­ erative to the extent it is inconsistent with the President’s actions. In any event, the determination o f whether a treaty has been rendered inoperative is largely a decision made by the Executive as part o f the conduct o f the foreign relations o f the United States. C f Charlton v Kelly, 229 U S 447 (1913) (holding that the President must decide whether the actions o f a foreign government have voided a treaty) 28The 1980 Opinion speaks somewhat loosely o f the U N Charter not being “a self-executing treaty.” 4B Op. O L C at 548. More properly, the question should be whether individual provisions o f the treaty are self-executing See, e g , United States v Postal, 589 F.2d at 884 n 35. 29We do not address the effect on the FBI’s authority o f treaties that have become part o f United States law, either because they are self-executing or because they have been implemented by legislation. As noted above, such treaties do have domestic legal effect, although they can be denounced by the Executive. C f The Chinese Exclusion Case, 130 U S. 581 (1889). See also Louis Henkin, Foreign Affairs and the Constitution, supra, at 171 We are unaware, however, o f any treaties o f general application that would limit the law enforcement authority o f the United States. Applicable treaties should, o f course, be examined in the context o f any particular operation. 179 the authority is viewed as derived from statute or from the President’s inherent constitutional authority. Section 533(1) designates the Attorney General as the responsible executive branch official. Thus, all enforcement action authorized pur­ suant to this statute, including enforcement action that departs from cus­ tomary or other international law, may be undertaken by the Attorney General.30 The Garcia-Mir decision, confirmed this conclusion by hold­ ing that the Attorney General performed the “controlling executive act” that sufficed to override customary international law in that case. 788 F.2d at 1454-55. The Attorney General also may exercise the President’s constitutional pow er to override customary international law because “ [t]he President speaks and acts through the heads o f the several departments in relation to subjects which appertain to their respective duties.” Wilcox v. Jackson, 38 U.S. (13 Pet.) 498, 513 (1839). See also Wolsey v. Chapman, 101 U.S. 755, 769 (1879). Specific direction from the President, or even explicit invocation o f his authority, cannot reasonably be expected and is not generally required. 7 Op. A tt’y Gen. 453, 480-82 (1855).31 Thus, we believe that the Attorney General has the power to authorize departures from customary o r other international law in the course o f law enforcement activities and that the President need not personally approve such actions. We would not recommend, however, that the Attorney General delegate the authority to more subordinate officials. Even if he is viewed as exercising statutory authority pursuant to section 533(1) or section 3052, we think that as a prudential matter the Attorney General should, in this case, exercise it personally. Decisions such as G a rcia-M ir rely on the theory that the Executive has the constitutional authority to make political decisions affecting our international relations. To the extent that such decisions are made by officials below cabinet rank, however, the factual basis for this theory may be weaker. Specifically, we recommend that any overseas law enforcement activi­ ty that presents a significant possibility o f departing from customary or other international law be approved directly by the President or the Attorney General. As an administrative matter, the Attorney General may 30The sam e is true with respect to section 3052. 31In re Neagle, provides an example o f a case in which the Court upheld the exercise by the Attorney General o f the President’s inherent constitutional authority 135 U.S at 67-68. More recent examples are the cases upholding the President’s constitutional authonty to order warrantless wiretaps relatmg to for­ eign intelligence activities. United States v. Butenko, 494 F.2d 593 (3d Cir.) (en banc), cert denied, 419 U.S. 881 (1974), United States v. Brown, 484 F2d 418 (5th Cir. 1973), cert denied, 415 U.S. 960 (1974); United States v. Truong, 629 F.2d 908 (4th Cir. 1980), cert denied, 454 U S 1144 (1982); United States v Buck, 548 F.2d 871 (9th Cir.), cert denied, 434 U.S. 890 (1977). In all o f these cases, the warrantless w ire­ taps w ere ordered by the Attorney General, and the courts accepted his authority to act on behalf o f the President. See also United States v. Ehrlichman, 546 F2d 910, 925-26 (D C Cir. 1976), cert denied, 429 U S . 1120 (1977) (holding that, if a national security exception for warrantless foreign intelligence searches exists, such searches must be authorized by the President or by “his alter ego for these matters, the A ttorney General”). 180 wish to promulgate guidelines specifying what actions could be taken by the FBI overseas, when consent should be obtained from foreign govern­ ments, and when such consent need not be obtained. Such guidelines also could provide general authorization for certain types of non-intrusive law enforcement activities (such as interviews with informants) in for­ eign countries that nonetheless might depart from customary interna­ tional law if not authorized by the foreign government. Nevertheless, it would be prudent for such guidelines to require individual approval by the Attorney General for any operation, such as an apprehension and abduction, that would involve the use o f force in the territory o f another country without that country’s consent. F. International and Foreign Law and the Fourth Amendment The 1980 Opinion concluded that an arrest in violation o f customary international law did not violate the Fourth Amendment.32 4B Op. O.L.C. at 554 n.34. We agree. The Opinion did not address whether the violation o f foreign statutes or other law would create a Fourth Amendment viola­ tion.33 We conclude that it would not. The central question is whether an arrest that violates international law or foreign statutory law is “unreasonable” within the meaning of the Fourth Amendment’s proscription o f unreasonable searches and seizures. The Fourth Amendment is an autonomous rule o f federal law that represents a judgment by the United States as to the appropriate bal­ ance between individual rights and the authority o f the government to enforce the law. The Court recently held that state standards for reason­ able searches and seizures are irrelevant to determining whether the 32The Bill o f Rights applies to actions o f American officials directed at American nationals overseas Reid v Covert, 354 U S 1, 5-6 (1957). There remains some dispute as to the extent to which the Bill o f Rights, particularly the Fourth Amendment, applies to actions o f American officials directed at non­ resident aliens overseas Compare Steven A. Saltzburg, The Reach o f the B ill o f Rights Beyond the Terra F iim a o f the United States, 20 Va J. Int’ l L. 741 (1980) ( “Saltzburg") with Paul B. Stephan III, Constitutional L im its on International Rendition o f Crim inal Suspects, 20 Va J Int’ l L. 777 (1980) ( “Stephan”) and Paul B Stephan III, Constitutional Lim its on the Struggle Against International Terrorism: Revisiting the Rights o f Overseas Aliens, 19 Conn L. Rev 831 (1987) The Supreme Court recently granted certiorari in a case holding the Fourth Amendment applicable to warrantless searches by DEA officials o f foreign nationals in their ow n country. United States v. Verdugo-Urquidez, 856 F2d 1214 (9th Cir 1988), [rev’d, 494 U S. 259 (1990)]. We are addressing here, however, only the general ques­ tion o f whether a violation o f foreign or international law results in a violation o f the Fourth Amendment, regardless o f whether the individual arrested is a citizen or alien 33Presumably this omission was based on the Opinion’s conclusion that the FBI had “the authonty to violate the local law o f another country as long as that country does not object." 4B Op O.L.C at 552 n.29 This conclusion was principally based on the notion that it is for the sovereign, not an individual, to determine whether objection should be made to an infnngement on sovereignty Id. While we think this analysis correctly resolves any question o f violation o f international law, it does not necessarily answer the Fourth Amendment question, fo r it is at least theoretically possible that the Fourth Amendment itself contains a requirement that arrests comply with applicable foreign laws I f such a nght were contained m the Fourth Amendment, it is difficult to see how a foreign government could extin­ guish the individual’s nght by failing to object. We address this issue in the text infra 181 Fourth Amendment has been violated. California v. Greenwood, 486 U.S. 35 (1988). The Court stated: We reject respondent’s] ... alternative argument for affir­ mance: that his expectation of privacy ... should be deemed reasonable as a matter o f federal constitutional law because the warrantless search and seizure ... was impermissible as a matter o f California law .... We have never intimated ... that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law o f the particular State in which the search occurs.... Respondent’s argument is no less than a suggestion that concepts o f privacy under the laws o f each State are to determine the reach o f the Fourth Amendment. We do not accept this submission. Id. at 43-44. See also Oliver v. United States, 466 U.S. 170, 183-84 (1984) (police officers who trespassed upon posted and fenced land did not vio­ late the Fourth Amendment, even though their action was subject to criminal sanctions); Olmstead v. United States, 277 U.S. 438, 466-69 (1928) (illegality o f a wiretap under state law irrelevant in considering whether evidence was inadmissible under the Fourth Amendment); Hester v. United States, 265 U.S. 57, 59 (1924) (trespass in “open fields” does not violate the Fourth Amendment). By analogy, the standards imposed by the Fourth Amendment, insofar as it applies abroad, see Reid v. Covert, 354 U.S. 1, 5-6 (1957), must be determined by United States law. It would be contrary to the Fourth Amendment’s purpose to incorpo­ rate into it rules o f international law or analogous foreign statutes autho­ rizing only local law enforcement officers to investigate and arrest. Such laws would have as their purpose the protection o f another country’s sov­ ereignty. In contrast, the Fourth Amendment is concerned with the pro­ tection o f individual rights. As the Fifth Circuit has stated: Whether the search and seizure were Fourth-Amendmentunreasonable must be established by showing that the interests to be served by the Fourth Amendment were vio­ lated, and not merely by establishing the violation o f gener­ al principles o f international law. United States v. Cadena, 585 F.2d 1252, 1264 (5th Cir. 1978).34 34 In United States v. Peterson, 812 F.2d 486 (9th Cir. 1987), the court reviewed whether evidence derived from wiretaps illegal under Philippine law was subject to the exclusionary rule Without analy­ sis, the court stated that the “local law o f the Philippines governs whether the search was reasonable ” Id. at 491 We do not accept this automatic incorporation o f local law into the Fourth Amendment, because it is inconsistent with California v. Greenwood, 486 U.S. 35 (1988). Moreover, the statement in Peterson was o f no consequence to the decision because the court proceeded to admit the evidence under the good faith exception to the exclusionary rule. 812 F2d at 491-92. 182 We believe that the requirements o f the Fourth Amendment are met when officers with authority under United States law arrest with probable cause.35See United Slates v. Reed, 639 F.2d 896, 902 & n.2 (2d Cir. 1981). Section 3052 of title 18 authorizes agents of the FBI to arrest without war­ rant if probable cause exists, which is all the Constitution requires, at least for an arrest in a public place. United States v. Watson, 423 U.S. 411, 41417 (1976); Henry v. United States, 361 U.S. 98, 100 (1959).36 Accordingly, we conclude that an arrest in violation o f foreign law does not violate the Fourth Amendment.37 In addition, based on the analysis in the 1980 Opinion, we reaffirm that an arrest departing from international law does not violate the Fourth Amendment. IV. Conclusion This Office concludes that at the direction o f the President or the Attorney General the FBI may use its statutory authority under 28 U.S.C. § 533(1) and 18 U.S.C. § 3052 to investigate and arrest individuals for vio­ lations o f applicable United States law, even if those actions depart from customary international law or unexecuted treaties. Moreover, we con­ clude that the President, acting through the Attorney General, has inher­ ent constitutional authority to deploy the FBI to investigate and arrest individuals for violations o f United States law, even if those actions con­ travene international law. Finally, we conclude that an arrest that is 35 There is som e doubt whether the Fourth Amendment standard includes a requirement o f domestic law authority to arrest. The 1980 Opinion concluded that it does 4B Op O L C at 553-54. That Opinion relied principally on United States v. D i Re, 332 U S 581, 589-92 (1948), a case involving exclusion o f ev i­ dence obtained incident to an unauthorized arrest by federal officials. But it is not clear that Di Re was a Fourth Amendment decision, and it is also unclear that the-Constitution requires statutory or other authonty to arrest. See 1 Wayne R. LaFave, Search- and Seizure § 1 5(b) at 107 (2d ed. 1987) (concluding that D i Re is not a Fourth Amendment case but “simply an instance o f the court utilizing its supervisory pow er to exclude from a federal prosecution evidence obtained pursuant to an illegal but constitutional federal arrest”). C f George E Dix, Fourth Amendment Federalism: The Potential Requirement o f State Law Authorization fo r Law Enforcement Activity, 14 Am J. Crim L. 1, 10 (1987) ( “There is consider­ able d o u b t. as to whether the Court has . . committed itself to the position that the fourth amendment reasonableness o f an arrest depends upon the existence o f state Jaw and the arrest’s validity under that law.”). In any event, as w e have previously stated, w e believe that authority exists for the Executive to authorize the FBI to make arrests in foreign countnes 3r’ As to an arrest in a non-public place, there are circumstances in which an arrest warrant is required. Payton v New York., 445 U S 573, 576 (1980). While presumably an arrest warrant often could be obtained, there are limitations to the extraterritonal junsdiction o f the magistrate’s writ See 18 U.S C §§ 3041-3042 Commentators have questioned, however, whether the warrant requirements o f Payton and other cases should apply overseas. See Saltzburg, supra, 20 Va J Int’l L. at 762; Stephan, supra, 20 Va. J Int’l L at 792 n.44 37 We note that fear that our agents w ill be extradited for violations o f foreign law during an en force­ ment operation authonzed by the President or the Attorney General is not a warranted concern The Secretary o f State always has discretion to refuse to extradite, even if the offense is covered by an extra­ dition treaty entered into with another country See 18 U S C. § 3186 (Secretary o f State “may” extradite the person committed under section 3184); Stndona v Grant, 619 F.2d 167 (2d Cir 1980), Wacker v. Bisson, 348 F.2d 602, 606 (5th Cir 1965). 183 i inconsistent with international or foreign law does not violate the Fourth Amendment. WIT J JAM P. BARR Assistant Attorney General Office o f Legal Counsel 184

Write a legal research memo on the following topic.

Presidential Authority to Permit the Withdrawal of Iranian Assets Now in the Federal Reserve Bank In order to allow Iran to w ithdraw its assets in the Federal Reserve Bank, the President has the power, under the International Em ergency Econom ic Powers Act (IEE PA ), to nullify existing attachm ents licensed under the Iranian Assets C ontrol Regulations. Since in consenting to attachm ents against the blocked Iranian assets the G overnm ent reserved the right to revoke its consent at any time, their nullification does not constitute a compensable taking o f private property. T he Federal Reserve Bank may release Iranian assets which have been attached but are not yet subject to a licensed final judgm ent, in reliance on the Presidents’ action under the IE E PA , without applying to the court to vacate its attachm ent orders. The considerations which ordinarily mandate compliance with court orders would not justify a contem pt citation w here the conduct in question has been clearly mandated by supervening executive action, where com pliance would defeat the President’s exercise o f his em ergency pow er under the IE E PA , and where the IE E PA itself provides an express exception to contem pt liability for com pliance with an order issued under its authority. W here Congress has immunized good faith compliance with a presidential order issued under the IE E PA , the Federal Reserve Bank would not be held liable to disappointed attachment creditors even if the presidential orders nullifying the attachm ent orders were later held unlawful. N or is there any basis, in the Constitution or otherwise, on which creditors whose attachm ents were nullified would be likely to recover against the United States itself. October 8, 1980 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL This responds to your request for our opinion whether the President has authority to permit the Central Bank of Iran and the Bank Markazi to withdraw the blocked assets they now have on deposit with the Federal Reserve Bank (FRB) notwithstanding the outstanding orders of attachment entered against such assets. You have also asked whether it is necessary to approach the courts that have entered the orders of attachment and obtain orders of dissolution before transferring the funds. We have concluded that the President has the authority under the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. § 1701 et seq. (Supp. I 1977), to return those assets by revoking the existing licenses for attachments against them and by licensing withdrawals. It is our view that such action is sufficient as a legal matter to authorize the return of those assets. Moreover, it is our opinion that the Federal Reserve Bank, relying upon that authority, may release the assets without applying to the court to vacate the 273 attachment orders. We believe it would be an abuse of discretion for a court to use the contempt power to penalize noncompliance with an attachment order that has been rendered unenforceable by the Presi­ dent’s order. Finally, Congress has immunized good faith compliance with emergency orders issued under IEEPA; therefore, it is our opinion that the Federal Reserve Bank could not be held liable to the attach­ ment creditors for damages even if a court should later determine that the President’s order was beyond the scope of his power under IEEPA. Similarly, we have found no basis for any action for damages by the attachment creditors against the United States. I. Presidential Authority to Nullify Outstanding Attachments Under IEEPA, the President has broad powers to issue orders block­ ing or releasing Iranian assets.1 Pursuant to that power, the President issued Executive Order No. 12,170 on November 14, 1979, blocking all property subject to the jurisdiction of the United States in which the government of Iran or any of its instrumentalities had an interest. 3 C.F.R. 457 (1979). The order also delegated to the Secretary of the Treasury presidential authority under IEEPA to implement the block­ ing order. On the same day, the Treasury Department issued the first of its Iranian Assets Control Regulations (IACR), which provided in part (31 C.F.R. § 535.203(e)): Unless licensed or authorized pursuant to this part any attachment, judgment, decree, lien, execution, garnish­ ment, or other judicial process is null and void with respect to any property in which on or since the effective date there existed an interest of Iran. On November 19, 1979, § 535.805 was added, providing that any li­ censes or authorizations “may be amended, modified or revoked at any time.” A limited modification to the general ban on unlicensed judicial proceedings was made subsequently on November 23, 1979, with the adoption of § 535.504, which authorized judicial proceedings but con­ tinued the ban on judgments and payments from blocked accounts. And finally, on December 18, 1979, an interpretive rule was added to clarify the permissible scope of judicial action (§ 535.418 (1980)): 'T h e IE E P A ’s principal operative provision, § 1702(a)(1), provides that the President may: (A) investigate, regulate o r prohibit— (i) any transactions in foreign exchange, (ii) transfers of credit or paym ents betw een, by, through, or to any banking institution, to the extent that such transfers or paym ents involve any interest of any foreign country or a national thereof, (iii) the im porting or exporting of currency or securities; and (B) investigate, regulate, direct and com pel, nullify, void, prevent or prohibit, any acquisition, holding, w ithholding, use, transfer, w ithdraw al, transportation, importation or exportation of, or dealing in, or exercising any right, pow er, or privilege with respect to, or transactions involving, any property in w hich any foreign country or a national thereof has any interest. . . . 274 The general authorization for judicial proceedings con­ tained in § 535.504(a) includes pre-judgment attachment. However, § 535.504(a) does not authorize payment or de­ livery of any blocked property to any court, marshal, sheriff, or similar entity, and any such transfer or blocked property is prohibited without a specific license. It would not be consistent with licensing policy to issue such a license. All of the attachment orders entered against the Iranian assets held by the Federal Reserve Bank exist pursuant to Treasury’s general license. In order to effect Iran’s withdrawal of the assets in the FRB, we believe the President has the power to nullify the licensed attach­ ments by revoking the existing general licenses for attachments. While there is no case law addressing the President’s power under IEEPA to nullify attachments issued under a licensing scheme such as the one presently in effect under the IACR, we believe that Orvis v. Brownell, 345 U.S. 183 (1953), provides strong support for the general principle that the President may, under IEEPA, condition his consent to the creation of property interests in blocked property and, by invok­ ing those conditions, nullify such property rights. In Orvis, claimants in a New York court attached a credit, previously frozen by executive order, which had been owed to Japanese nationals by a stock associa­ tion. The claimants obtained a judgment and, as required by regulation, applied for a federal license to permit the stock association to pay over the amount in judgment. The application was denied, and the Custodian vested the credit and received payment from the stock association. The judgment creditors, asserting that they had a right to the funds, filed an action under § 9(a) of the Trading with the Enemy Act, after the Custodian denied their notice of claim to those funds. The Supreme Court, in rejecting the judgment creditors’ § 9(a) claim, noted that the government had consented to the unlicensed attachment of the funds for the limited purpose of determining the rights and liabilities between the creditors and the enemy debtors.2 The Court 2 Prior to the attachm ent in Orvis, Treasury had issued a general ruling that any unlicensed transfers, including attachm ents, w ere null and void. D epartm ent of Treasury Ruling No. 12, § 131.12, 7 Fed. Reg. 2991 (1942). Paragraph 4 of the ruling, however, recognized unlicensed transfers, including attachm ents, as valid and enforceable for the purpose of determ ining the rights and liabilities o f the parties to the action. One day after the issuance o f the ruling. T reasury announced its position with respect to unlicensed attachm ents in an amicus curiae brief in the N ew York C ourt of Appeals, stating that unlicensed attachm ents w ere desirable to clarify the rights and liabilities o f private parties. Brief o f the United States as amicus curiae at 52, 53 Commission for Polish Relief v. Banca Nationala a Rumaniei, 288 N.Y. 332, 43 N .E. 2d 345 (1942), quoted in Zittman v. McGrath, 341 U.S. 446, 454-57 (1951) (Zittman I). Nine years later in Zittman 1, the C ourt relied on T reasury’s adm inistrative practice and interpretation of Ruling No. 12 to deny Treasury's request that an attachm ent obtained in state court against blocked G erm an bank accounts be declared null and void and decided that the attach* ment was valid betw een the private parties to the action. A ccordingly, the C ourt held that an order of the Custodian vesting the “right, title and interest” of the G erm an banks placed the Custodian in the shoes of the G erm an banks and, therefore, subject to the attachm ent. In a com panion case, Zittman v. Continued 275 held, nonetheless, that the government’s permission to attach the credit in state court proceedings created no property interest that could be asserted against the government because the government had reserved the right to withhold licenses for judgment. The Court reasoned that the government’s initial consent to proceed with state court attachments did not extend so far as to recognize them as effecting a transfer. To so interpret it would ignore the express condi­ tions on which the consent was extended. Realistically, these reservations deprive the assent of much substance; but that should have been apparent on its face to those who chose to litigate. The opportunity to settle their accounts with the enemy debtor was all that the permission to attach granted. Id. at 187 (emphasis added). Three important principles emerge from a careful analysis of Orvis. First, the President has the power under IE E PA 3 to prevent the cre­ ation of property interests in blocked alien property. Second, this power includes the power to reserve the right to withdraw any consent he may give to the creation of property rights or to condition the exercise of any property right created pursuant to his consent. Third, this power to reserve the right to withdraw consent or condition the exercise of property rights is paramount and supersedes any rights creditors may acquire under state law. Application of these principles to the release of Iranian assets held by the FRB leads to the conclusion that the President has the power under IEEPA to nullify the attachments against those assets. Treasury, as the President’s delegee, has consented to attachments against the blocked Iranian assets. 31 C.F.R. § 535.504 and 535.418. In giving its consent, Treasury reserved two crucial rights. Treasury withheld its consent to McGrath, 341 U.S. 471 (1951) (Zittman II), the C ourt held that the Custodian’s order, w ithout such restrictive language, directing that certain G erm an bank accounts previously attached by creditors be turned over was valid. Since the Custodian had sought only possession of the funds and, unlike Zittman I, had not asked for a judgm ent declaring the attachm ents to be invalid, the C ourt addressed only the question w hether the Custodian had the pow er to possess and adm inister those funds. The Court expressly reserved the question w hether the state court judgm ents and attachm ents w ould have any conclusive effect on the final disposition of the accounts. Id. at 474. T hat question was decided in the negative tw o years later in Orvis. 3T he case law under the Trading w ith the Enem y A ct as amended in 1941, is fully applicable to our analysis o f the President's authority under its successor statute, IEE PA . As the legislative history o f IE E P A notes, the “grant o f authorities [in IE E P A ] basically parallels section 5(b) of the Trading with the Enem y A ct.’’ H. R. Rep. No. 459, 95th Cong., 1st Sess. at 14-15 (1977). Indeed, because the blocking order in Orvis was issued prior to the 1941 am endm ents to the Trading w ith the Enem y A ct, which added inter alia the pow ers to nullify o r void any interest in alien property, it could be strongly argued that the President’s pow ers to nullify or void the attachm ents against the locked assets are even greater than the pow ers o f the President w hen the Orvis blocking order was issued. N ot only does the President have the pow er recognized in Orvis to condition the creation of property interests and to nullify said interests by invoking the stated conditions; he arguably also has the pow er to nullify or void any interest in blocked property even in the absence o f any stated conditions or reservations. The exercise o f that pow er, how ever, may raise a substantial “takings” question under the Fifth Amendm ent. 276 judgment, a reservation which Orvis regarded as permitting the govern­ ment to nullify any attachments vis-a-vis itself. Treasury also reserved the right to revoke its consent to attach at any time. 31 C.F.R. § 535.805.4 Thus, the government reserved not only the right to nullify attachments vis-a-vis the government, but also the right to nullify them totally.5 This latter reservation was critical in order to ensure that the President would have maximum flexibility in negotiating with Iran for the release of the hostages. Because the license to attach was subject to these reservations, the attaching creditors in initiating attachments pro­ ceedings assumed the risk that the license to attach would be with­ drawn at any time. But, like the attachment creditors in Orvis, that risk “should have been apparent on its face to those who chose to litigate.” 345 U.S. at 187. . II. Judicial Dissolution of Attachment Orders We have concluded that the President has authority under IEEPA to prevent the continuing assertion of interests in Iranian property through the provisional remedy of attachment. The President may exercise that authority by issuing an order prescribing that attachments shall create no interests in Iranian property. Moreover, with respect to any pending litigation involving Iranian property already subject to attachment but not yet subject to a licensed final judgment, the President may provide (1) that the plaintiff shall no longer enjoy provisional rights in the property through attachment, and (2) that the garnishee may lawfully transfer the property notwithstanding the plaintiffs attempt to secure it pending final judgment. We now come to a procedural issue. If the President promulgates an order that (1) prevents the continued assertion of provisional rights through pending attachment orders and (2) authorizes garnishees to transfer Iranian property notwithstanding attempts to secure it through attachment, may garnishees assume that the President’s action, if in­ tended to do so, leaves them legally free to proceed directly with any authorized transfer, or must the garnishees apply first to the appropriate court or courts for orders formally vacating the attachments? In ordinary circumstances, the general interest in preserving orderly judicial process would militate strongly in favor of the latter course. Procedures are provided by law for the modification or dissolution of court orders that stand in need of modification or dissolution because of 4 In § 535.503, Treasury also reserved the right lo exclude any person from ihe operation of any license or “to restrict the applicability [of any license] with respect to particular persons, transactions or property or classes thereof.’* Thus, Treasury reserved the right not only to revoke all licenses for attachm ents, but also to revoke selectively particular classes of licenses, e.g.. all general licenses for attachm ents against blocked assests held by the Federal Reserve Bank. 5 Because o f the reservation o f the right to revoke these attachm ents, it is clear that they can be revoked under IEEPA without giving rise to a successful takings claim. See. e.g.. Bridge Co. v. United States, 105 U.S. 470 (1881); United States v. Fuller. 409 U.S. 488 (1973). 277 changed circumstances. Such procedures are available here. See N.Y. Civ. Prac. Law § 6223 (McKinney 1980). Ordinarily, these procedures provide an adequate means of obtaining relief from court orders that have been rendered void or unenforceable by a change in law. See generally Pasadena City Board of Education v. Spangler, A ll U.S. 424 (1976). Moreover, from a purely pragmatic standpoint, the use of these procedures in the present case would avoid the two risks presented by the alternative course—namely, (1) the risk that action in defiance of an undissolved attachment order will be regarded as contumacious and punishable as contempt, and (2) the risk the courts may yet hold the attachments lawful and the garnishee liable civilly for any damages suffered by the plaintiffs in consequence of violation of the attachment orders.6 We will assess both of those risks below. A. Contempt Our research to date has revealed only one decision by the Supreme Court dealing with the precise question presented here. See Pennsylva­ nia v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421 (1855). In Wheeling the Court was asked to decide whether certain individuals should be held in contempt of an order that the Court itself had issued enjoining construction of a bridge over the Ohio River. Congress had subsequently enacted a statute declaring that this bridge was a lawful structure. The defendants, in reliance upon that Act, had proceeded with construction of the bridge without first applying to the Court for dissolution of the outstanding injunction. On the motion for contempt, the Court held that the Act of Congress was valid, that the previous injunction could not be enforced in futuro, that the motion for con­ tempt was addressed to the discretion of the Court, and that under all the circumstances of the case the motion should be denied. Wheeling does not hold that a court is powerless to punish defiance of an outstanding court order that has been rendered unenforceable by subsequent legislation. Indeed, the implication of the decision is to the contrary; and in that respect the decision is fully consistent with the settled rule, applicable in a different context, that the contempt power may be used to punish noncompliance with court orders that are erro­ neous or unlawful at the time they are issued. See United States v. United Mine Workers of America, 330 U.S. 258 (1947); Walker v. City of Birmingham, 388 U.S. 307 (1967). The Supreme Court has deemed this to be a necessary rule, given the need for a means of enforcing compli­ ance with orderly process. The courts must be able to ensure that aggrieved litigants will appeal erroneous orders and not resort to self­ 6It goes without saying that (he executive’s belief in the legality of any given executive action in response to the hostage crisis will not in itself prevent a court from deciding that the action is or was unlawful. If the underlying issue is justiciable and can be brought before a court with jurisdiction to decide it, there is always the risk that the court will rule against the G overnm ent. 278 help. Nonetheless, it is our view that Wheeling does stand for the proposition that the usual considerations supporting the rule of compli­ ance do not justify a contempt citation where the conduct in question has been clearly mandated or authorized by subsequent legislation.7 To be sure, the rule of compliance is not suspended by any and every change in circumstance, see Spangler, supra; but Wheeling suggests that it may be suspended by a clear and specific change in law. In our opinion, the case at hand is an appealing case for application of the Wheeling rule. It is more appealing than was Wheeling itself. The builders of the bridge over the Ohio could have easily applied for dissolution of the injunction before resuming their work; yet the Court thought it inappropriate to hold them in contempt for boldly proceed­ ing in the face of the outstanding order. This result cut against the traditional policy. The demand for compliance with orderly process has generally rested upon the assumption that existing procedures for the modification or correction of outstanding orders will be adequate to the exigencies of the case, that they will fully vindicate the rights in question, and that individuals can therefore be expected to comply with them without resorting to self-help. At the same time, the courts have recognized that in unusual cases the usual procedures may be inad­ equate; and in these cases the courts have been willing to countenance refractory conduct that would be held contumacious in other contexts. For example, where the rights of an individual would be wholly lost by complying with an outstanding order, his refusal to comply with it pending appeal is not punishable as contempt. There is no justification for requiring aggrieved litigants to comply with procedures that defeat the right at issue. See United States v. Dickinson, 465 F.2d 496, 511-12 (5th Cir. 1972), citing Walker v. City of Birmingham, supra, Malloy v. Hogan, 378 U.S. 1 (1964), Gelbard v. United States, 408 U.S. 41 (1972). As we have said, Congress has given the President emergency power to nullify these attachments and to authorize transfer of the attached property. The President may attempt to use that power to resolve the hostage crisis. If, however, the government and the banks, to imple­ ment his order, must first pursue the usual judicial procedure for modi­ fication of outstanding attachments (a procedure involving motions, arguments, further litigation, and inevitable delay), then the President may be unable to use his power effectively to achieve the purpose authorized by Congress. If settlement of the crisis requires expedition and certainty, not uncertainty and the law’s delay, we believe it would be an abuse of discretion for a court to use the contempt power to penalize noncompliance with an attachment order that has been ren7 We do not believe our reliance on Wheeling is undercut by the evident distinction betw een supervening congressional action and supervening executive action taken under authority conferred by a preexisting statute (IE E PA ). We believe that the assertion o f supervening pow er under IE E P A would be entitled to as much respect by the judicial branch as supervening action by Congress. 279 dered unenforceable by lawful action under IEEPA. Continuing compliance with the order, followed by a motion for dissolution, argu­ ment, and further litigation, would defeat the emergency power that Congress has sought to create. Finally, we observe that IEEPA itself provides that “[n]o person shall be held liable in any court for or with respect to anything done or omitted in good faith in connection with the administration of, or pursuant to and in reliance on, this [Act], or any regulation, instruction, or direction issued under this [Act].” 50 U.S.C. § 1702(a)(3). Without expressing any view regarding the general question of the power of Congress to deprive the courts of a means of enforcing compliance with their own process, we are of the opinion that, in the face of this expression of congressional intent, the use of the contempt power to punish necessary and otherwise lawful action under IEEPA would be an abuse of discretion, and, therefore, unlikely. We have found one state court case, involving the Trading with the Enemy Act and the Federal Reserve Bank of New York, that supports this conclusion. See Von Opel v. Von Opel, 154 N.Y.S. 2d 616 (Sup. Ct. 1956). We have found no decision to the contrary. B. Civil Liability The second risk of proceeding in the face of outstanding attachment orders is the risk of civil liability. If the attached funds are released before the courts have determined that the President has power to nullify the attachments, the United States, the Federal Reserve Bank or both will almost certainly be asked to account to the creditors for any damages they sustain as a result of the release. If the courts ultimately decide (1) that IEEPA does not authorize the President to nullify these attachments and (2) that the attachments are otherwise valid under the Foreign Sovereign Immunities Act (FSIA), the question will arise whether the courts can go further and hold either the United States or the Federal Reserve Bank accountable to the attachment creditors for loss of the pre-judgment security. We have several observations to make on this point. We shall discuss, first, the potential liability of the Federal Reserve Bank and, second, the potential liability of the United States. 1. Liability of Federal Reserve Bank As a matter of practice, the Federal Reserve Bank of New York has not resisted the attempts of domestic creditors to attach foreign funds on deposit with that Bank. See, e.g., National American Corp. v. Federal Republic of Nigeria, 448 F. Supp. 622 (S.D.N.Y. 1978). Whether this practice is necessary, we do not know. It is obviously in harmony with the interests of domestic creditors, including the member banks of the 280 New York district. As you may know, these banks elect a majority of the directors of the Board of Directors of the Reserve Bank. Under New York law the garnishee of a valid attachment order is accountable to the attachment creditor for any losses sustained by the creditor as a result of release of the attached property in violation of the order. See Fitchburg Yarn Co. v. Wall & Co., 361 N.Y.S.2d 170 (App. Div. 1974). Whether this rule, or an analogous federal rule, will be enforced against the garnishee of a federal attachment order issued by a district court in New York under Rule 64 of the Rules of Civil Procedure, we cannot say. We have found no case on point. We can say, however, that if federal law (Rule 64) permits a third party to be subjected to garnishment in the first instance, it is a small thing to conclude that the third party may then be held to account for any violation of his duty as garnishee. The imposition of the duty implies a remedy for its breach. Again, we have not found a case on point; but we know of no reason why, as a general proposition, the garnishee of a federal attachment order issued under Rule 64 of the Rules of Civil Procedure cannot be subjected to civil liability for violation of the order. What is the rule where the garnishee is a Federal Reserve Bank? Federal Reserve Banks are the tools of the Federal Reserve System, but they are corporate entities, they are owned by their shareholders, and they can “sue and be sued.” The relevant statutes and the case law contain no hint that they enjoy general immunity from suit or liability for the wrongs they commit in the conduct of their business. Indeed, the relevant jurisdictional statute assumes that they can and will be subject (in federal court) to “suits of a civil nature at common law or in equity.” See 12 U.S.C. § 632. This statute grants them a special immu­ nity from prejudgment remedies in cases in which they themselves are parties defendant, but it does not provide them with immunity from execution on final judgment. Moreover, the shareholders of Federal Reserve Banks (the private “member” banks of the Federal Reserve System) are, by statute, responsible “individually” for all the “contracts, debts and engagements” of the Reserve Banks. See 12 U.S.C. § 502 (emphasis added). If a private national bank can be held civilly liable for wrongful release of attached funds, we find no clear indication that a Federal Reserve Bank can or should be accorded a different treat­ ment. We have expressed the view that a presidential order nullifying these attachments would be lawful. We think the Federal Reserve Bank could not incur liability to any attachment creditor for making a trans­ fer that is authorized by a lawful presidential order. Moreover, there is 281 a serious question whether these attachments are valid in any event.8 If the attachments are invalid, then as a matter of general law the gar­ nishee can incur no liability to the attachment-creditors for transferring the attached funds. See, e.g., United Collieries v. Martin, 248 Ky. 808, 60 S.W. 2d 125 (1933); Smith, Thorndike & Brown Co. v. Mutual Fire Ins. Co., 110 Wis. 602, 86 N.W. 241 (1901); Henkel v. Bi-Metallic Bank, 13 Colo. App. 410, 58 P. 336 (1899). Finally, even if the attachments are valid and even if they cannot be revoked under IEEPA, it is clear that the attachment creditors will sustain actual damage from a present transfer of the attached funds only if (1) their underlying claims are good on the merits, (2) their claims are not extinguished by a claims settlement,9 (3) their claims can be reduced to final judgment, and (4) the relevant law, including FSIA, would permit those judgments to be paid out of the attached funds. With regard to the last point, we note that the present IEEPA regulations prevent any final judgment from being paid out of this property. Our view is that the creditors will be unable to demonstrate that they have been damaged by any transfer of the attached property unless they can show that this prohibition against the payment of final judgments could not lawfully be sustained in the future to bar the perfection (through execution on final judg­ ment) of the mere provisional interests now being asserted in this property through attachment. In all, there are so many contingencies standing in the way of garnishee liability in this case that it is difficult to make a realistic assessment of the actual risk. At the same time, given the amount of money in question, it is obvious that any risk of liability militates strongly in favor of a conservative approach to the transfer question, all other things being equal. This brings us to our final point. Congress knew that any significant presidential action under IEEPA would upset existing legal relations, and give rise to claims and counter­ 8 Invoking a creative legal theory in his interpretation of FSIA , Judge D uffy has recently held that these attachm ents are not barred by FSIA and are otherw ise valid. We disagree w ith the holding. FSIA provides that the assets of a foreign governm ent are immune from prejudgm ent attachm ent unless the foreign governm ent explicitly waives its immunity. 28 U.S.C. § 1610(d). This statutory imm unity is subject to existing international agreem ents. 28 U.S.C. § 1609. O ne district court has held that w hile there has been no explicit w aiver o f imm unity by Iran, the T reaty o f Amity betw een Iran and the United States, w hich pre-dated FSIA , w aived immunity from attachm ent w ith respect to m ilitary property. Behring International, Inc. v. Imperial Iranian Air Force, 475 F. Supp. 383 (D .N .J. 1979). FSIA provides that the assets of a foreign central bank are immune from attachm ent and execution unless the bank or its parent foreign governm ent explicitly waives immunity. 28 U.S.C. § 1611(b)(1). As yet, there are no published opinions addressing the immunity of foreign central banks from attachm ent under FSIA . T w o district courts have held, how ever, that FSIA renders the assets of the governm ent o f Iran immune from attachm ent because Iran has not w aived immunity from attachm ent. See Reading & Bates Corp. v. National Iranian Oil, 478 F. Supp. 724 (S.D.N.Y. 1979) and E-Systems, Inc. v. Islamic Republic o f Iran, 491 F. Supp. 1294, (N .D . Tex. 1980). 9 W e do not think that the acquisition o f a provisional interest in foreign property through attachm ent immunizes the underlying claim from the governm ent's pow er to settle that claim as part o f an overall claims settlement. T he provisional interest is only as good as the underlying claim. It dies if the claim dies. T he pow er o f the governm ent to extinguish claims through settlement is clear. See M em orandum for the A ttorney G eneral dated Septem ber 16, 1980, “ Presidential A uthority to Settle the Iranian Crisis" [p. 248, supra\ 282 claims among persons subject to the presidential order. Recognizing that these persons might be reluctant to rely on the order for fear of liability, Congress took care to preserve in IEEPA the exculpatory provision that had long been present in the Trading with the Enemy Act. We have referred to that provision above. We know of no reason why this provision cannot be read for what it says. In our opinion, it would exculpate a garnishee (a mere stake­ holder) who has relied in good faith upon a lawful presidential order authorizing release of attached funds under IEEPA. Would the excul­ pation be effective if the presidential action were ultimately held to be unlawful? The whole purpose of this provision is to resolve legal doubts and to encourage persons to rely upon emergency presidential action under IEEPA wherever they can do so in good faith. That purpose would be wholly frustrated if the provision were read to expose compliant individuals to liability for presidential mistakes. If individual liability were to depend in the end on the legality of what the President has done, no one with significant exposure would comply willingly with any presidential order until all the legal questions pre­ sented by the action had been definitively resolved. In our opinion, Congress has undertaken to prevent that impasse. Congress has immu­ nized good faith compliance with emergency orders under IEEPA whether the orders are mistaken or not. We have found one district court opinion, Garvan v. Marconi Wireless Tele. Co., 275 F. 486 (D.N.J. 1921), that supports this conclusion. 2. Liability of the United States Either IEEPA authorizes nullification of these attachments, or it does not. If it authorizes nullification, there is a possibility that the United States may incur a constitutional liability as a result of nullification, i.e., a liability imposed by the Fifth Amendment, which requires the United States to pay compensation when it “takes” private property for public use. That liability would provide a basis for an action by the creditors against the United States in the Court of Claims. We have expressed the view, however, that nullification of these attachments under IEEPA will not constitute a taking of private property in the Fifth Amendment sense. Paradoxically, if IEEPA does not authorize nullification, the risk of constitutional liability is even smaller. As a general proposition, unau­ thorized executive action that destroys or harms private interests in property does not subject the United States to liability for a taking under the Fifth Amendment. See, e.g., Hooe v. United States, 218 U.S. 322 (1910); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); 42 Op. Att’y Gen. 441, 445-46. To be sure, unauthorized action may be tortious, and it may subject the executive officer himself to 283 individual liability; 10 but it generally does not give rise to a constitu­ tional claim against the government itself. Is there any other basis for liability? The Federal Tort Claims Act is a possibility. It makes the United States liable for “tort claims” arising from the wrongful acts or omissions of officers and employees of the United States in certain circumstances. See 28 U.S.C. § 2674. But Con­ gress has expressly excepted from the provisions of that Act “[a]ny claim based upon an act or omission of an employee of the Govern­ ment, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance of the failure to exercise or perform a discre­ tionary function or duty on the part of a federal agency or employee of the government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). In our opinion, this express exception to the Tort Claims Act would be fully applicable in the case presented here, whether or not the President’s action is ultimately approved by the courts.11 Aside from the question of tort claims, we think it very doubtful that any other statute—IEEPA itself, Rule 64, the organic legislation estab­ lishing the Federal Reserve Bank, etc.—can be construed to grant a right of action against the United States in these circumstances. Such a grant must be made with specificity. See United States v. Testan, 424 U.S. 392, 400 (1976). Absent a contract or a claim for the return of money paid by the claimant to the government, there can be no private right to money damages in a suit against the United States unless, a federal statute “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.” Id. at 400, citing Eastport S.S. Corp. v. United States, 372 F.2d 1002-09 (Ct. Cl. 1967). We know of no federal statute that specifically grants a right of action against the United States for wrongful release of attached funds by a Federal Reserve Bank or “mandates” compensation by the United States for the damages sustained by the attachment creditors. Finally, there is at least a theoretical possibility of liability based on contract. It is clear, of course, that the United States can be held to account in a Court of Claims for damages resulting from a breach of an express contract and a contract implied in fact. Over the years, creative lawyers have been able to exploit this potential liability by arguing 10 W e believe that in this case, how ever, the executive officer would be relieved of liability by the exculpatory provision in IEE PA . 11 T he Federal T ort Claims A ct has always contained a separate, express exception for claims arising out of the adm inistration o f the T rading w ith the Enem y A ct. See 28 U.S.C. § 2680(e). When Congress created IE E P A , lifting it from the Trading w ith the Enem y A ct, it neglected to amend this provision to include IE E P A within the term s of the traditional exception. We think this was an innocent oversight. W e find nothing in the relevant legislative history that suggests that Congress intended to subject the United States to liability for the mistakes made by officers and agencies o f the United States in the adm inistration o f IE E P A w hile preserving sovereign immunity w ith respect to mistakes made under the identical provisions o f the T rading w ith the Enem y A ct. In any case, the general exception contained in 28 U.S.C. § 2680(a) applies to action under IE E P A , in our view. 284 where all else fails that their claims rest upon implied “promises” of one kind or another. We do not know what express or implied repre­ sentations the Federal Reserve Bank or the organs of the government may have made to the creditors in the present case, or what consider­ ation the creditors may have advanced in return; but we do know that the government has formally and expressly represented from the very start, in the blocking regulations themselves, that the authorization for these attachments may be withdrawn, and the government has ex­ pressly declined to provide assurance that the attached funds will ever be available to satisfy any final judgments. It seems to us that -these formal representations leave relatively little room for a successful claim that the government has somehow promised to keep these funds secure for the creditors’ benefit. We do not know all the facts, but. we see little risk of a successful contract claim against the government itself. John M . H arm on Assistant Attorney General Office of Legal Counsel 285

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Emergency Authority of the Secretary of Health and Human Services Under 42 U.S.C. § 243(c)(2) U n d e r § 311 o f th e P ublic H ealth S e rv ice A c t, 42 U .S .C . § 243(c)(2), w h ic h au th o rizes the S e c re ta ry o f H ealth and H u m an S ervices, at the request o f th e a p p ro p ria te sta te o r lo cal a u th o rity , to ex ten d te m p o ra ry assistance to states and localities in m eeting health em erg en cies, th e P ublic H e a lth S e rv ice m ay p ro v id e relo catio n assistance to residents liv in g n ear th e L o v e C anal for a p erio d not to exceed 45 days, for p u rp o ses o f assessing an d d ealin g w ith th e h ealth e m e rg e n c y in th a t area. May 17, 1980 M EM ORANDUM OPINION FOR T H E ASSISTANT TO TH E PR ESID EN T FOR IN TER G O V ER N M EN TA L A FFAIRS This responds to your request for our opinion whether the Secretary of Health and Human Services is authorized by 42 U.S.C. § 243(c)(2) to assist state and local authorities in temporarily relocating certain resi­ dents who now live near the Love Canal in Niagara Falls, New York, to cities removed from health hazards of the Canal.* In our opinion, this section does give the Secretary that authority. The section in question was enacted in 1967 as an addition to § 311 of the Public Health Service Act. Partnership for Health Amendments of 1967, Pub. L. No. 90-174, §4, 81 Stat. 533, 536 (1967). As enacted, the statute provided: The Secretary may enter into agreements providing for cooperative planning between Public Health Service med­ ical facilities and community health facilities to cope with health problems resulting from disasters and for participa­ tion by Public Health Service medical facilities in carry­ ing out such planning. He may also, at the request o f the appropriate State or local authority, extend temporary (not in excess o f forty-five days) assistance to States or localities in • N o t e : L ove C anal, an uncom pleted excavation originally designed to link the N iagara R iver and Lake O ntario, was used as a chem ical dum psite betw een 1920 and 19S3. D uring the 1970's, homes bo rd erin g th e landfill began to smell o f chem icals, and residents o f the area w ere found to be suffering unusually high rates o f cancer, birth defects, and o th e r illnesses. In 1978, an investigation by the N ew Y ork State D epartm ents o f H ealth and E nvironm ental C onservation led to the discovery that the landfill was leaking dangerous chem ical com pounds, and the area w as declared by the State to be “an extrem ely serious th reat to health and w elfare.” O n M ay 21, 1980, President C arter signed an em ergency o rd e r authorizing federal assistance in the tem porary relocation o f the 710 families w ho had rem ained in the area. Ed. 638 meeting health emergencies o f such a nature as to warrant Federal assistance. The Secretary may require such reim­ bursement of the United States for aid (other than plan­ ning) under the preceding sentences of this subsection as he may determine to be reasonable under the circum­ stances. Any reimbursement so paid shall be credited to the applicable appropriation of the Public Health Service for the year in which such reimbursement is received. Id. (Emphasis added). In 1976, the section was amended to authorize the Secretary to develop and implement a plan to use resources of the Public Health Service and other agencies under the Secretary’s jurisdic­ tion to control epidemics and to meet other health emergencies. Na­ tional Consumer Health Information and Health Promotion Act of 1976, Pub. L. No. 94-317, § 202(b), 90 Stat. 695, 703 (1976). The 1976 amendment divided § 243(c) into two parts. Section 243(c)(1) author­ ized the development and implementation of plans to meet emergencies or problems resulting from disasters or epidemics. Section 243(c)(2), which sets forth the Secretary’s authority to extend assistance to states or localities in meeting health emergencies, is the section which grants the authority about which you have inquired. This section now provides: The Secretary may, at the request of the appropriate State or local authority, extend temporary (not in excess of forty-five days) assistance to States or localities in meeting health emergencies of such a nature as to warrant Federal assistance. The Secretary may require such reim­ bursement of the United States for assistance provided under this paragraph as he may determine to be reason­ able under the circumstances. Any reimbursement so paid shall be credited to the applicable appropriation for the Service for the year in which such reimbursement is re­ ceived. Id. The 1976 amendment did not substantively change the Secretary’s authority respecting temporary health emergency assistance to states or localities. To determine the scope of the Secretary’s authority under this sec­ tion, we have reviewed the legislative history of both the 1967 and the 1976 Acts. This review yielded little guidance as to the meaning of the operative phrases in the statute, such as the 45-day limitation on assist­ ance. There is also little indication of the legislative intent as to what may satisfy the requirement of a request from “the appropriate State or local authority” or as to what type of health emergency was contem­ plated. We found nothing in this review to indicate that the Secretary 639 may not extend federal assistance for relocating Love Canal residents to temporary housing.1 The 1967 amendment, which added the section authorizing the Secre­ tary to act in health emergencies, was part of a lengthy bill which modified the Public Health Service Act. The House Committee on Interstate and Foreign Commerce explained the new section as follows: This section adds a new subsection (c) to section 311 of the Public Health Service Act. Under this proposed new subsection, the Secretary would be authorized to enter into agreements providing for cooperative planning be­ tween public health medical facilities and community health facilities to cope with health problems resulting from disasters, and for participation by Public Health Service medical facilities in carrying out such planning. He could also, at the request o f appropriate State or local authority, extend temporary (not in excess o f 45 days) assist­ ance to States or localities in meeting health emergencies o f such a nature as to warrant Federal assistance. He could also require such reimbursement of the United States for aid (other than planning) received under this subsection as he determines to be reasonable under the circumstances. Any such reimbursement would be credited to the appli­ cable appropriation of the Public Health Service.2 H.R. Rep. No. 538, 90th Cong., 1st Sess. 38 (1967) (emphasis added). The reference to the new section in the Senate report indicates that the Congress intended the section to grant broad authority to the Secretary so that the Public Health Service could play an active role in delivering disaster assistance services. In explaining this expanded role, the com­ mittee wrote: Under present statutory authority, the Public Health Service may provide emergency care and treatment in its hospitals and outpatient facilities to persons who are not legal beneficiaries of the Service, but the Service does not have clear authority to provide such emergency care or treatment outside of its own facilities. If Public Health Service hospitals are to be responsible members of the medical communities in which they are located, they must be able to play a more active role in meeting such com­ munity emergency health needs as arise in the case of floods, fires, and other disasters. The proposed new au­ 1 T h e re are no judicial decisions o r regulations interpreting this section. 2 T h e S ecretary must determ ine w h e th er to require reim bursem ent from the state or locality. In 1967, it was suggested to the com m ittee that the reim bursem ent be m andatory, but this suggestion was not follow ed. See H .R . Rep. No. 538, 90th C ong., 1st Sess. 49 (1967). 640 thority would not create any direct Federal obligation to provide such emergency assistance, but it would authorize Public Health Service medical facilities to cooperate with other community agencies in the development and execu­ tion of disaster assistance services. S. Rep. No. 724, 90th Cong., 1st Sess. 13 (1967). Although this refer­ ence could be read to suggest that the section authorizes only emer­ gency assistance in the form of assistance by Public Health Service facilities, we do not believe the section properly should be construed so narrowly. In its section-by-section analysis, the committee noted that § 4 authorized agreements for cooperative planning between public health medical facilities and community health facilities and that the Secretary could also extend temporary assistance to meet health emer­ gencies. There is no limitation on the type of temporary assistance that may be provided. See S. Rep. No. 724, 90th Cong., 1st Sess. 25 (1967).3 Most of the discussion on the floor focused on other, more contro­ versial sections of the bill. The few comments on § 4 simply refer to the strengthened role of the Public Health Service in assisting states and localities to cope with health emergencies and disasters. See, e.g., 113 Cong. Rec. 26,016 (1967) (Statement of Mr. Donohue). Hearings on the bill were held by the Senate Committee on Labor and Public Welfare. As with the floor debates, the few comments on § 4 at the hearings summarily referred to the section as a clarification and strengthening of existing authority for assistance to states and localities. See, e.g., Partner­ ship For Health Amendments o f 1967: Hearings on S. 1131 and H.R. 6418 Before the Subcomm. on Health o f the Sen. Comm, on Labor and Public Welfare, 90th Cong., 1st Sess. 62 (1967). The 1976 amendment, as stated earlier, did not substantively modify the Secretary’s authority to assist during emergencies. The amendment to § 4 appeared in the House bill. The committee simply paraphrased the existing provision in its report, without shedding any light on the meaning of the section. H.R. Rep. No. 1007, 94th Cong., 2d Sess. 30 (1976). The plain language of the statute authorizes the Secretary to provide the assistance at the request of the appropriate state or local authority. This request is a prerequisite to the provision of any assistance. The Secretary must determine whether the authority requesting the aid is the appropriate authority.4 The Secretary must determine whether the circumstance is a health emergency of such a nature as to warrant 3 A conference com m ittee was convened to resolve differences on o ther portions o f the bill. T h e conference report does not discuss this section. H .R. Rep. No. 974, 90th C ong., 1st Sess. (1967). 4 A lthoug h the A ct states that "the" state o r local authority may make the request, w e d o not think this m eans that there is only one official so authorized. In the absence o f regulations, the Secretary must determ ine in each circum stance w h eth er the request com es from an appropriate authority. 641 federal assistance.5 Once the Secretary makes this determination, tem­ porary federal assistance may be provided for a period of 45 days. The legislative sources cited above do not reveal the purpose of the 45-day limitation. Because the purpose of the section is to authorize temporary assistance to states and localities, it may be inferred that the provision was added to prevent prolonged federal involvement. Financial com­ mitments may not be made beyond the 45-day period. If the financial commitments are made within the 45-day period, and if they are in­ tended to provide “temporary” aid, we believe the section allows the benefits of the commitments to extend beyond the 45 days. Finally, based upon our review of the statute and its legislative history, as discussed above, at least in the circumstances as you have described them in the case, the Public Health Service is authorized to provide temporary relocation assistance. Any removal of families, and their temporary relocation in other housing, will be for purposes closely related to assessing and dealing with the health emergency. Congress intended to confer on the Secretary of Health and Human Services authority broad enough to respond as contemplated here. L a r r y A. H am m ond Acting Assistant Attorney General Office o f Legal Counsel 8 W e h ave been advised by th e G eneral C ounsel's O ffice o f the D epartm ent o f H ealth and H um an Services that a standard internal operating pro ced u re requires that the Surgeon G eneral determ ine that there is indeed a “ health em ergency.*’ T h e statu te itself does not require this procedure, and the process is not set forth in the Public H ealth S ervice's regulations. 642

Write a legal research memo on the following topic.

Emergency Authority of the Secretary of Health and Human Services Under 42 U.S.C. § 243(c)(2) U n d e r § 311 o f th e P ublic H ealth S e rv ice A c t, 42 U .S .C . § 243(c)(2), w h ic h au th o rizes the S e c re ta ry o f H ealth and H u m an S ervices, at the request o f th e a p p ro p ria te sta te o r lo cal a u th o rity , to ex ten d te m p o ra ry assistance to states and localities in m eeting health em erg en cies, th e P ublic H e a lth S e rv ice m ay p ro v id e relo catio n assistance to residents liv in g n ear th e L o v e C anal for a p erio d not to exceed 45 days, for p u rp o ses o f assessing an d d ealin g w ith th e h ealth e m e rg e n c y in th a t area. May 17, 1980 M EM ORANDUM OPINION FOR T H E ASSISTANT TO TH E PR ESID EN T FOR IN TER G O V ER N M EN TA L A FFAIRS This responds to your request for our opinion whether the Secretary of Health and Human Services is authorized by 42 U.S.C. § 243(c)(2) to assist state and local authorities in temporarily relocating certain resi­ dents who now live near the Love Canal in Niagara Falls, New York, to cities removed from health hazards of the Canal.* In our opinion, this section does give the Secretary that authority. The section in question was enacted in 1967 as an addition to § 311 of the Public Health Service Act. Partnership for Health Amendments of 1967, Pub. L. No. 90-174, §4, 81 Stat. 533, 536 (1967). As enacted, the statute provided: The Secretary may enter into agreements providing for cooperative planning between Public Health Service med­ ical facilities and community health facilities to cope with health problems resulting from disasters and for participa­ tion by Public Health Service medical facilities in carry­ ing out such planning. He may also, at the request o f the appropriate State or local authority, extend temporary (not in excess o f forty-five days) assistance to States or localities in • N o t e : L ove C anal, an uncom pleted excavation originally designed to link the N iagara R iver and Lake O ntario, was used as a chem ical dum psite betw een 1920 and 19S3. D uring the 1970's, homes bo rd erin g th e landfill began to smell o f chem icals, and residents o f the area w ere found to be suffering unusually high rates o f cancer, birth defects, and o th e r illnesses. In 1978, an investigation by the N ew Y ork State D epartm ents o f H ealth and E nvironm ental C onservation led to the discovery that the landfill was leaking dangerous chem ical com pounds, and the area w as declared by the State to be “an extrem ely serious th reat to health and w elfare.” O n M ay 21, 1980, President C arter signed an em ergency o rd e r authorizing federal assistance in the tem porary relocation o f the 710 families w ho had rem ained in the area. Ed. 638 meeting health emergencies o f such a nature as to warrant Federal assistance. The Secretary may require such reim­ bursement of the United States for aid (other than plan­ ning) under the preceding sentences of this subsection as he may determine to be reasonable under the circum­ stances. Any reimbursement so paid shall be credited to the applicable appropriation of the Public Health Service for the year in which such reimbursement is received. Id. (Emphasis added). In 1976, the section was amended to authorize the Secretary to develop and implement a plan to use resources of the Public Health Service and other agencies under the Secretary’s jurisdic­ tion to control epidemics and to meet other health emergencies. Na­ tional Consumer Health Information and Health Promotion Act of 1976, Pub. L. No. 94-317, § 202(b), 90 Stat. 695, 703 (1976). The 1976 amendment divided § 243(c) into two parts. Section 243(c)(1) author­ ized the development and implementation of plans to meet emergencies or problems resulting from disasters or epidemics. Section 243(c)(2), which sets forth the Secretary’s authority to extend assistance to states or localities in meeting health emergencies, is the section which grants the authority about which you have inquired. This section now provides: The Secretary may, at the request of the appropriate State or local authority, extend temporary (not in excess of forty-five days) assistance to States or localities in meeting health emergencies of such a nature as to warrant Federal assistance. The Secretary may require such reim­ bursement of the United States for assistance provided under this paragraph as he may determine to be reason­ able under the circumstances. Any reimbursement so paid shall be credited to the applicable appropriation for the Service for the year in which such reimbursement is re­ ceived. Id. The 1976 amendment did not substantively change the Secretary’s authority respecting temporary health emergency assistance to states or localities. To determine the scope of the Secretary’s authority under this sec­ tion, we have reviewed the legislative history of both the 1967 and the 1976 Acts. This review yielded little guidance as to the meaning of the operative phrases in the statute, such as the 45-day limitation on assist­ ance. There is also little indication of the legislative intent as to what may satisfy the requirement of a request from “the appropriate State or local authority” or as to what type of health emergency was contem­ plated. We found nothing in this review to indicate that the Secretary 639 may not extend federal assistance for relocating Love Canal residents to temporary housing.1 The 1967 amendment, which added the section authorizing the Secre­ tary to act in health emergencies, was part of a lengthy bill which modified the Public Health Service Act. The House Committee on Interstate and Foreign Commerce explained the new section as follows: This section adds a new subsection (c) to section 311 of the Public Health Service Act. Under this proposed new subsection, the Secretary would be authorized to enter into agreements providing for cooperative planning be­ tween public health medical facilities and community health facilities to cope with health problems resulting from disasters, and for participation by Public Health Service medical facilities in carrying out such planning. He could also, at the request o f appropriate State or local authority, extend temporary (not in excess o f 45 days) assist­ ance to States or localities in meeting health emergencies o f such a nature as to warrant Federal assistance. He could also require such reimbursement of the United States for aid (other than planning) received under this subsection as he determines to be reasonable under the circumstances. Any such reimbursement would be credited to the appli­ cable appropriation of the Public Health Service.2 H.R. Rep. No. 538, 90th Cong., 1st Sess. 38 (1967) (emphasis added). The reference to the new section in the Senate report indicates that the Congress intended the section to grant broad authority to the Secretary so that the Public Health Service could play an active role in delivering disaster assistance services. In explaining this expanded role, the com­ mittee wrote: Under present statutory authority, the Public Health Service may provide emergency care and treatment in its hospitals and outpatient facilities to persons who are not legal beneficiaries of the Service, but the Service does not have clear authority to provide such emergency care or treatment outside of its own facilities. If Public Health Service hospitals are to be responsible members of the medical communities in which they are located, they must be able to play a more active role in meeting such com­ munity emergency health needs as arise in the case of floods, fires, and other disasters. The proposed new au­ 1 T h e re are no judicial decisions o r regulations interpreting this section. 2 T h e S ecretary must determ ine w h e th er to require reim bursem ent from the state or locality. In 1967, it was suggested to the com m ittee that the reim bursem ent be m andatory, but this suggestion was not follow ed. See H .R . Rep. No. 538, 90th C ong., 1st Sess. 49 (1967). 640 thority would not create any direct Federal obligation to provide such emergency assistance, but it would authorize Public Health Service medical facilities to cooperate with other community agencies in the development and execu­ tion of disaster assistance services. S. Rep. No. 724, 90th Cong., 1st Sess. 13 (1967). Although this refer­ ence could be read to suggest that the section authorizes only emer­ gency assistance in the form of assistance by Public Health Service facilities, we do not believe the section properly should be construed so narrowly. In its section-by-section analysis, the committee noted that § 4 authorized agreements for cooperative planning between public health medical facilities and community health facilities and that the Secretary could also extend temporary assistance to meet health emer­ gencies. There is no limitation on the type of temporary assistance that may be provided. See S. Rep. No. 724, 90th Cong., 1st Sess. 25 (1967).3 Most of the discussion on the floor focused on other, more contro­ versial sections of the bill. The few comments on § 4 simply refer to the strengthened role of the Public Health Service in assisting states and localities to cope with health emergencies and disasters. See, e.g., 113 Cong. Rec. 26,016 (1967) (Statement of Mr. Donohue). Hearings on the bill were held by the Senate Committee on Labor and Public Welfare. As with the floor debates, the few comments on § 4 at the hearings summarily referred to the section as a clarification and strengthening of existing authority for assistance to states and localities. See, e.g., Partner­ ship For Health Amendments o f 1967: Hearings on S. 1131 and H.R. 6418 Before the Subcomm. on Health o f the Sen. Comm, on Labor and Public Welfare, 90th Cong., 1st Sess. 62 (1967). The 1976 amendment, as stated earlier, did not substantively modify the Secretary’s authority to assist during emergencies. The amendment to § 4 appeared in the House bill. The committee simply paraphrased the existing provision in its report, without shedding any light on the meaning of the section. H.R. Rep. No. 1007, 94th Cong., 2d Sess. 30 (1976). The plain language of the statute authorizes the Secretary to provide the assistance at the request of the appropriate state or local authority. This request is a prerequisite to the provision of any assistance. The Secretary must determine whether the authority requesting the aid is the appropriate authority.4 The Secretary must determine whether the circumstance is a health emergency of such a nature as to warrant 3 A conference com m ittee was convened to resolve differences on o ther portions o f the bill. T h e conference report does not discuss this section. H .R. Rep. No. 974, 90th C ong., 1st Sess. (1967). 4 A lthoug h the A ct states that "the" state o r local authority may make the request, w e d o not think this m eans that there is only one official so authorized. In the absence o f regulations, the Secretary must determ ine in each circum stance w h eth er the request com es from an appropriate authority. 641 federal assistance.5 Once the Secretary makes this determination, tem­ porary federal assistance may be provided for a period of 45 days. The legislative sources cited above do not reveal the purpose of the 45-day limitation. Because the purpose of the section is to authorize temporary assistance to states and localities, it may be inferred that the provision was added to prevent prolonged federal involvement. Financial com­ mitments may not be made beyond the 45-day period. If the financial commitments are made within the 45-day period, and if they are in­ tended to provide “temporary” aid, we believe the section allows the benefits of the commitments to extend beyond the 45 days. Finally, based upon our review of the statute and its legislative history, as discussed above, at least in the circumstances as you have described them in the case, the Public Health Service is authorized to provide temporary relocation assistance. Any removal of families, and their temporary relocation in other housing, will be for purposes closely related to assessing and dealing with the health emergency. Congress intended to confer on the Secretary of Health and Human Services authority broad enough to respond as contemplated here. L a r r y A. H am m ond Acting Assistant Attorney General Office o f Legal Counsel 8 W e h ave been advised by th e G eneral C ounsel's O ffice o f the D epartm ent o f H ealth and H um an Services that a standard internal operating pro ced u re requires that the Surgeon G eneral determ ine that there is indeed a “ health em ergency.*’ T h e statu te itself does not require this procedure, and the process is not set forth in the Public H ealth S ervice's regulations. 642

Write a legal research memo on the following topic.

Presidential Authority to Direct the Chairman of the Council of Economic Advisers Not to Comply With a Congressional Subpoena Seeking Testimony About Private Activities Although there has been a practical construction, extending back to the earliest days of this Republic, of the respective powers of the Congress and the Executive, under which the President may order his subordinates in the Executive Branch to withhold information from the Congress when he deems such action to be in the public interest, it is difficult to justify application of this principle with respect to a congressional subpoena seeking an official’s testimony regarding his private activities prior to the time of his close official connection with the President. February 19, 1952 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL The question has been raised as to whether Mr. Leon R. Keyserling, Chairman of the Council of Economic Advisers, could be directed by the President not to appear and testify, in response to a subpoena issued by a subcommittee of a committee of the Senate, with respect to his political views and his expressions of these views, through a period of time beginning several years before he was made a member of the President’s immediate official family after the enactment of the Employment Act of 1946, Pub. L. No. 79-304, § 4, 60 Stat. 23, 24, codified at 15 U.S.C. § 1023, which established the Council in the Executive Office of the President. There are in general two theories on which such a refusal might be justified. Most frequently, support is found in the power of the President to hold information confidential in the public interest. Another theory that has been suggested is that the official subpoenaed cannot be spared from his conduct of the public business. The latter ground would seem to be the most difficult to justify in the present case. The only cited instance of its recognition that has been found occurred in 1806, in a case where the Secretary of State, the Secretary of War, and the Secretary of the Navy had been summoned to appear in the United States Circuit Court in New York. Declining to honor the subpoena, they wrote to the judges presiding at the trial that, in view of the state of public affairs, the President was unable to dispense with their services at that moment, and that it was uncertain whether they would at any subsequent time be able to absent themselves from their official duties. In order not to prejudice the court in the exercise of its functions, however, they signified their willingness to give testimony by deposition. United States v. Smith, 27 F. Cas. 1192, 1194 (C.C.D.N.Y. 1806) (No. 16,342). Conceivably, the assertion could be made that the President is unable to spare Mr. Keyserling at any time, now or in the indefinite future, to appear before a congressional subcommittee, but it is questionable whether such a statement 142 Presidential Authority to Direct Non-Compliance With Congressional Subpoena would be accepted without serious reservations, either by the public or by a court sitting in judgment on a possible prosecution for contempt of Congress. A more frequently used basis for the refusal of an official close to the President to obey a congressional subpoena exists in the well-established practice of the Presidents in their discretion to hold information of various types to be confidential in the public interest, and to decline to permit its divulgence outside of the Executive Branch of the government. Instances of the practice may be adduced as far back as the administration of George Washington. In 1796, for example, President Washington declined to comply with a request of the House of Representatives to furnish it with a copy of the instructions to ministers of the United States who had initiated a treaty with Great Britain. In 1803, in his famous opinion in Marbury v. Madison, Chief Justice Marshall recognized the right of Attorney General Levi Lincoln, who had been Secretary of State as of the time of the transactions in question, to refrain from disclosing to the court information which had been communicated to him in confidence. 5 U.S. (1 Cranch) 137, 143–44 (1803). In so doing, the Chief Justice recognized that “[t]he intimate political relation, subsisting between the president of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate; and excites some hesitation with respect to the propriety of entering into such investigation.” Id. at 169; see also Appeal of Hartranft, 85 Pa. 433, 443–50 (1877). There are more recent instances as well of the refusal of an official of the Executive Branch to appear and testify before courts or congressional committees in response to direction or subpoena. In 1905, Attorney General Moody advised the Secretary of Commerce and Labor, who had been subpoenaed by a state court to appear and testify before it, that he was not legally bound to obey the subpoena. Executive Departments— Official Records—Testimony, 25 Op. Att’y Gen. 326 (1905). In 1909, President Theodore Roosevelt instructed his Attorney General not to respond to that portion of a Senate resolution which directed the latter to inform the Senate as to why legal proceedings had not been instituted against the United States Steel Corporation. In a strongly worded message to the Senate, the President declared that “I have instructed the Attorney-General not to respond to that portion of the resolution which calls for a statement of his reasons for nonaction. I have done so because I do not conceive it to be within the authority of the Senate to give directions of this character to the head of an executive department, or to demand from him reasons for his action. Heads of the executive departments are subject to the Constitution, and to the laws passed by the Congress in pursuance of the Constitution, and to the directions of the President of the United States, but to no other direction whatever.” 43 Cong. Rec. 528 (1909). 143 Supplemental Opinions of the Office of Legal Counsel in Volume 1 In 1944, the Director of the Federal Bureau of Investigation refused to answer certain questions put to him by a congressional committee, and further declined to show the committee a copy of the President’s directive to him on which his refusal was based. Study and Investigation of the Federal Communications Commission: Hearings Before the Select Committee to Investigate the Federal Communications Commission, 70th Cong. pt. 2, at 2334, 2337 (1944). In the same investigation, a congressional request for the appearance of several Army and Navy officers was refused. Id. pt. 1, at 14, 21, 67–68 (1943). In 1948, the Secretary of Commerce refused to obey a House Resolution directing him to supply certain information relating to the loyalty of the head of a Bureau in that Department. H.R. Doc. No. 80-625 (1948). These instances, and many others, are evidence of a practical construction, extending back to the earliest days of this Republic, of the respective powers in this field of the Congress and the Executive, under which the President may order his subordinates in the Executive Branch to withhold information from the Congress when he deems such action to be in the public interest. It is difficult, however, to justify the application of the principle with respect to information relating, as I understand it, mainly to Mr. Keyserling’s private activities prior to the time of his close official connection with the President. In order to support application of the principle in this instance, it might be asserted that, because of Mr. Keyserling’s current close official association with the President, the risk of his disclosing confidential official information would be present even though the questions themselves were directed to Mr. Keyserling’s activities before the time of his intimate association with the President. Alternatively, it might be urged that if the President feels, on whatever grounds seem to him to be persuasive, that revelation of the information sought by the committee would be prejudicial to the public interest even though the information itself is not in the category of public documents or “official” information, he would be justified in directing Mr. Keyserling not to appear before a congressional subcommittee for the purpose of supplying such information while Mr. Keyserling is in his immediate official service. Such a position would represent an extension of the presidential prerogative beyond any precedent with which I am acquainted, and I am unable to predict whether or not it would command sufficient support to be sustained if the question were forced to litigation in a contempt prosecution. It should be pointed out that, if the President should decide to direct Mr. Keyserling not to obey the subpoena, the refusal itself need not necessarily state the theory of justification on which the President is relying. In 1948, for example, in reply to subpoenas served personally upon John R. Steelman, one of the assistants to the President, directing him on two separate occasions to appear before a House subcommittee, Mr. Steelman did not appear but returned the subpoenas to the chairman of the subcommittee with a letter stating, among other things, that “in each instance the President directed me, in view of my duties as his assistant, not 144 Presidential Authority to Direct Non-Compliance With Congressional Subpoena to appear before your subcommittee.” H.R. Rep. No. 80-1595, at 3 (1948). The theory underlying a refusal, however, would seem to be largely determinative of the degree to which public opinion receives the refusal with favor, and must of course be depended upon for a successful defense against a prosecution for contempt of Congress. Even if the course of refusal to appear is decided upon, it is suggested that it might be wise for the President to demonstrate his desire to cooperate with the subcommittee in any appropriate inquiry which it might make, by authorizing Mr. Keyserling to submit to the subcommittee for its use a statement of affirmance or denial of specific allegations that have been made, together with such additional remarks as might be considered appropriate. It would appear that such a statement should meet the needs of the subcommittee. Nevertheless, the President might also make it known that he has further authorized Mr. Keyserling to transmit to the subcommittee, if that body after receiving and considering his statement should wish to ask him additional specific questions, such additional relevant information in his possession as may properly be disclosed. Such a course should succeed in preserving the confidential nature of information that ought not to be disclosed in the public interest, while at the same time lending every assistance to the committee in its work. For use in drafting such a letter to the subcommittee, if it is the decision of the President to follow that course, a suggested form which such a letter might take is attached. In addition to the question of Mr. Keyserling’s position in this matter, there has also been raised the question of the status of his wife, as to her obligation to obey a similar senatorial subpoena to appear and testify on the same alleged activities of Mr. Keyserling, and possibly of herself. I understand that Mrs. Keyserling is employed as an economist at the Department of Commerce. As an employee of the federal government, it would appear that in general Mrs. Keyserling is equally subject with any other federal employee to a congressional subpoena. To justify her refusal to appear, it would seem necessary flatly to assert that her husband’s position is such that the President cannot permit any federal employee to disclose the information requested. I know of no precedent for such action. On the other hand, there has been no previous instance, as far as I am aware, where the question has been raised. JOSEPH C. DUGGAN Assistant Attorney General Executive Adjudicative Division 145 Supplemental Opinions of the Office of Legal Counsel in Volume 1 ATTACHMENT My dear Mr. Chairman: I am returning herewith the subpoena issued under date of __________, 1952, by the Subcommittee on Internal Security of the Senate Committee on the Judiciary, and signed by you as Chairman of that Subcommittee, directing me to appear before it on __________, 1952, to testify concerning certain alleged associations or conversations attributed to me. The President has directed me, in view of my duties as Chairman of the Council of Economic Advisers, not to appear before the Subcommittee for that purpose. However, in view of the President’s desire not to interfere with or impede appropriate inquiries of the Subcommittee, he has permitted me to transmit for the use of the Subcommittee the accompanying statement relating to certain specific allegations which have been reported in the newspapers. In my opinion, the statement speaks for itself and is complete. Should the Subcommittee, however, after receiving and considering this statement, desire any further specific information from me, I shall be glad to transmit to it in response to specific questions such additional relevant information as I may have which may appropriately be disclosed. Sincerely, __________ 146

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June 5, 1978 78-31 MEMORANDUM OPINION FOR THE DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION Intelligence— Warrantless Electronic Surveillance— Common Carriers (18 U.S.C. §§ 2510-2520, 47 U.S.C. § 605) This is in response to your request for our opinion regarding the legality of cooperation by common carriers in providing the Federal Government with technical assistance in connection with warrantless electronic surveillance for foreign intelligence purposes.1 We conclude that such activities are not prohibited by § 605 of the Communications Act, 47 U.S.C. §605; nor do they violate chapter 119 or title 18, United States Code, 18 U.S.C. §§ 2510 -2520, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended. I. Section 605 of the Communications Act Section 605 provides in pertinent part that: Except as authorized by chapter 119, Title 18, no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect or meaning thereof, except through authorized channels of transmission or reception, (1) to any person other than the addressee, his agent, or attorney, (2) to a person employed or authorized to forward such communication to its destination, (3) to proper accounting or distrib­ uting officers of the various communicating centers over which the communication may be passed, (4) to the master of a ship under whom he is serving, (5) in response to a subpoena issued by a court of competent jurisdiction, or (6) on demand of other lawful authority. . . . 'Y ou have indicated that only limited technical assistance, not interception and disclosure perse, would be requested. The scope o f this m em orandum is limited accordingly. 123 This language, found in the first sentence of § 605, is designed to regulate the conduct of communications personnel. S. Rept. No. 1097, 90th Cong., 2d sess., 1968 U.S. Code Cong. & Admin. News, at 2197. The remainder of the section deals only with radio communications. The current language was adopted in 1968 as § 803 of the Omnibus Crime Control and Safe Streets Act. The provision was “ not intended merely to be a reenactment of (old] section 605. . . [but was] intended as a substitute.” Id., at 2196. Although the 1968 changes have in certain respects rendered pre-1968 judicial interpretations inapplicable,2 certain interpretations may have contin­ ued vitality. Thus, in United States v. Russo, 250 F. Supp. 55, 58-59 (E.D. Pa. 1966), the court treated the first clause of § 605 as applicable under only very narrow circumstances, unlike those here at issue, indicating that the statute’s language was . . . designed to apply to persons such as telegram or radiogram operators, who must either learn the content of the message or handle a written record of communications in the course of their employ­ ment. Clause 1 recognizes that the integrity of the communication system demands that the public be assured that employees who thus come to know the content of messages will in no way breech the trust which such knowledge imposes on them. Also significant is the holding of the Court of Appeals for the Third Circuit, in United States v. Butenko, 494 F. (2d) 593 (en banc), cert, denied sub nom., Ivanov v. United States. 419 U.S. 881 (1974), that in its earlier form the provision was simply not intended to reach wiretapping undertaken pursuant to Presidential order for foreign intelligence purposes.The provision of technical assistance for this limited purpose, using similar reasoning, would also seem to fall outside the current scope of § 605, particularly since an express disclaimer of such coverage appears in 18 U.S.C. § 2511(3), discussed below, which was enacted at the same time. The language and legislative history of § 605, as amended, provide addi­ tional support for the view that the provision presents no bar to a carrier’s technical assistance in connection with warrantless intelligence taps. In its present form, the section simply bars divulgence of the existence or content of wire communications. Cooperation in identifying lines or otherwise providing necessary technical information to facilitate Government taps does not involve disclosures of this sort. Moreover, the legislative history of the amended provision states that “ [T]he regulation of the interception of wire and oral communications in the future is to be governed by proposed new chapter 119 of title 18, United States Code [18 U.S.C. §§ 2510-2520].” S. Rept. No. 1097, supra, 1968 U.S. Code Cong. & Admin. News, at 2196. Rather than assuming that Congress intended separately to regulate interceptions (in title 18) and disclosures (in § 605), the courts have indicated that Congress effectively “'Significantly, under the earlier version the restrictions contained in the second through fourth sentences o f the current provision, now applicable only to radio com m unications, also governed com m unications by wire. 124 shifted control of electronic surveillance operations to 18 U.S.C. §§ 2510-2520. See, United States v. Falcone, 505 F. (2d) 478, 482 (3d Cir. 1974), cert, denied, 420 U.S. 955 (1975). Cf., Hodge v. Mountain States Telegraph & Telephone Co., 555 F. (2d) 254, 264 (9th Cir. 1977) (Hufstedler, J., concurring) (pen registers not barred by chapter 119 of title 18 and therefore not covered by § 605). For these reasons we believe that communication carriers who provide limited technical assistance in connection with Presidentially authorized warrantless electronic surveillance undertaken for foreign intelligence purposes will not violate § 605 of the Communications Act. II. 18 U.S.C. §§ 2510-2520 (Title III) Section 2511(1) of title 18, United States Code, forbids interception of wire or oral communications, use of various devices to intercept oral communica­ tions, disclosure of the content of wire or oral communications, and use of the contents of such communications knowing that they have been obtained through illegal interception. “ Intercept” is defined as “ the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device” 18 U.S.C. § 2510(4). Identification of particular telephone lines or provision of other technical assistance, knowing that another intends to undertake electronic surveillance, does not fall within the statutory language. Only actual interception or disclosure is forbidden, not lesser acts facilitating such consequences. The possibility that such conduct would be treated by a court as falling within the terms of the statute for the purpose of aiding or abetting or of a conspiracy charge where the electronic surveillance is not authorized pursuant to title III. cf.. White v. Weiss, 535 F. (2d) 1067 (8th Cir. 1976) (private detective’s participation in interception by providing equipment and instruction in its installation held basis for liability under § 2520), appears to be foreclosed by reference to the limitation on the scope of the title III prohibitions appearing in 18 U.S.C. § 2511(3). Section 2511(3) provides: Nothing contained in this chapter or in section 605 of the Communi­ cations Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. . . . 125 The Supreme Court, in United States v. United States District Court (Keith), 407 U.S. 297 (1972), a case involving warrantless surveillance of a domestic organization allegedly inclined to attack and subvert the existing structure of Government, interpreted this provision not as a grant of authority to conduct warrantless national security searches, but as a disclaimer of congressional intent to define Presidential powers in matters affecting national security. In this limited context, the Court held that the Fourth Amendment warrant requirement did apply; in so doing, however, it appeared to assume that title III limitations were inapplicable, for it discussed at some length the possible variations in procedural requirements that might be permissible under the Constitution. Id., at 322-323. The Keith decision provides guidance concern­ ing the President’s constitutional power to undertake surveillance, while at the same time it construes § 2 5 11 (3) broadly to exempt from coverage under title III Presidential action with regard to both national security and foreign intelligence surveillance, at least in the absence of further action by Congress.'' The Court’s clear language supports this interpretation: “ We therefore think the conclusion inescapable that Congress only intended to make clear that the Act simply did not legislate with respect to national security surveillance.” Id., at 306. An alternative interpretation of Keith was suggested in Zweibon v. Mitchell, 516, F. (2d) 594 (D.C. Cir. 1975), cert, denied, 425 U.S. 944 (1976). In an opinion joined by Judges Leventhal and Robinson, and concurred in by Judge Bazelon, Judge Wright there asserted that the requirements of title III should be deemed to apply as fully as possible where warrantless electronic surveil­ lance at the behest of the President was not found to be constitutionally authorized; specifically where such surveillance was directed against members of a domestic organization whose activities could affect the foreign relations of the United States, but who were neither agents of nor collaborators with a foreign power.4 At the same time, both Judge Wright and the other members of the court were careful to stress that the case did not require them to resolve the more difficult question left undecided in Keith, see 407 U.S. at 322, i.e., whether a warrant is constitutionally required in connection with electronic surveillance of collaborators or agents of a foreign power. Courts of appeal in three circuits have squarely held that warrants are not required under those circumstances. United States v. Buck, 548 F. (2d) 871 (9th Cir. 1977); United States v. Butenko, supra; United States v. Brown, 484 F. (2d) 418 (5th Cir. 1973). See also, United States v. Humphrey, Crim. No. 78-25-A (E.D. Va., March 31, 1978), memorandum opinion at 8. In light of this clear and growing authority, we do not believe that Judge Wright’s analysis in Zweibon regarding 3In a recent decision, the U .S . District C ourt for the Eastern District of Pennsylvania adopted this view, holding that if it is established that surveillance is conducted for national security purposes, no right o f action based on failure to com ply with title III will lie. despite the conclusion that in that case there was a constitutional requirem ent that a warrant be procured. See. Burkhart v. Saxbe. 448 F. Supp. 588 (E .D . Pa. 1978). 4Judges W ilkey, M acK innon, and M cG ow an rejected this interpretation of Keith; Judge Robb, concurring in the result but not in the relevant portion o f the W right opinion, found title III applicable on the facts presented. It is therefore far from clear that the W right view should be seen as controlling. 126 the breadth of application to be given the provisions of title III will be extended to render telephone companies liable for providing technical assistance in connection with even constitutionally flawed surveillances undertaken pursuant to Presidential authorization for foreign intelligence purposes.5 Given our conclusion that the proscriptions of title III do not apply where, pursuant to Presidential authorization, Federal agents carry out warrantless electronic surveillance for foreign intelligence purposes, we must nevertheless inquire whether telephone companies which provide necessary technical assistance at the request of the Government are equally exempt from liability. It would seem to follow that Congress, intending to leave unimpaired the President’s authority in this regard, did not seek to bar cooperation by telephone companies where needed to accomplish the permitted end. Cf., Fowler v. Southern Bell Telephone & Telegraph Co., 343 F. (2d) 150, 156-157 (5th Cir. 1965) (recognizing a common law immunity from liability for telephone companies engaged in assisting immune State officials). This notion is strengthened by analogy to § 251 l(2)(a), as amended in 1970, to provide that (ii) It shall not be unlawful under this chapter for an officer, employee, or agent of any common carrier to provide information, facilities, or technical assistance to an investigative or law enforce­ ment officer who, pursuant to this chapter, is authorized to intercept a wire or oral communication. Section 2511 (2)(a) and two other contemporaneous amendments to title III6 specifically provide for limited assistance in connection with court-authorized7 electronic surveillance which complies with the procedural protections of title III, but do not in terms immunize carriers who provide such limited assistance 5See Burkhart v. Saxbe, supra. It should, nevertheless, be noted that the Humphrey decision may be viewed as raising particular questions in this regard. T here, the court held that a w arrant was required by virtue o f the Fourth Am endm ent once the gathering o f evidence o f crim inal activity, rather than the accum ulation o f foreign intelligence inform ation, had becom e the primary purpose o f Presidentially authorized electronic surveillance, but did not analyze the issue in term s o f title HI. W e do not believe that such a recognition of the G overnm ent’s obligation under the Constitution to seek a judicial warrant at this later tim e should affect the liability o f telephone com panies under title III. Section 2 5 11 (3) states that nothing in chapter 119 o f title 18 (title III) is to be read as lim iting the President’s constitutional pow er to undertake foreign intelligence surveillances as necessary. Interpreting title 111 to render telephone com panies liable for providing necessary technical assistance w henever an investigation later changes in character (without their knowledge) so that a warrant is constitutionally required would effectively deter their participation at the outset. This result is questionable since it im pinges upon the carefully preserved and judicially recognized Presidential pow er with regard to foreign intelligence surveillances. 6See 18 U .S .C . § 2518(4) (on request o f the applicant for a court order com pelling a com m unications com m on carrier to fum ish inform ation, facilities, and technical assistance in connection with court-authorized interception); 18 U .S .C . § 2520 (expanding the defense o f good faith reliance on court orders or on the provisions o f § 2518(7) to include reliance on court order or "legislative authorization"). 7The Suprem e Court in Keith, as earlier discussed, found that § 2511(3) did not constitute congressional “ authorization” o f w arrantless intelligence surveillance undertaken pursuant to Presidential order. 127 in connection with Presidentially authorized surveillance.8 At the same time, however, they do demonstrate Congress’ intent not to penalize under title 111 those who render this sort of aid in connection with electronic eavesdropping that is lawfully undertaken.9 The decision in Halperin v. Kissinger, .424, F. Supp. 838 (D.D.C. 1974), provides some support for this view insofar as the district court there found a telephone company which had provided limited technical assistance while acting in reliance on the representations of Govern­ ment officials to be without liability.10 Based on the above reasoning and this limited authority, we therefore believe that it may properly be concluded that title III imposes no criminal or civil liability on common carriers which provide limited technical assistance pursuant to a Government request in connection with Presidentially authorized electronic surveillance for foreign intelligence purposes. III. Conclusion There have been few judicial decisions considering the liability of telephone companies which provide technical assistance in the conduct of foreign intelligence surveillances. However, based on relevant statutory provisions, we believe that no liability is likely to be found under 47 U.S.C. § 605, as amended. Additionally, it is our view that liability for rendering technical assistance at least in connection with Presidentially authorized warrantless electronic surveillance of an agent or collaborator of a foreign power could not be founded on the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended. Jo h n M . H a rm o n Assistant Attorney General Office o f Legal Counsel “The am endm ents were adopted in 1970 as part o f the District o f Colum bia Court Reorganization Act. Their limited legislative history indicates that they were intended m erely to clarify C ongress’ intent under title III o f the 1968 Act. 115 Cong. Rec. 37192-93 (1970) (rem arks by Senator M cClellan). The Suprem e Court has held that the am endm ents were primarily designed to overrule the Ninth C ircu it’s decision in Application o f the United States, 427 F. (2d) 639 (1970), which had concluded that district courts lack pow er to compel a telephone com pany to assist in a wiretap conducted pursuant to title III. United States v. New York Telephone Co.. 434 U. S. 159, 177, n. 25 (1977). T he use o f such language to clarify C ongress’ intent in enacting title III does not compel the conclusion that the earlier version o f the law did not permit the rendering o f such assistance. C f. ibid. ''That lim ited technical aid was expressly sanctioned does, how ever, by im plication, suggest that direct telephone com pany involvem ent in interception and disclosure was not at the same time approved. l0It is unclear which o f these distinguishable grounds and statutory bases (§ 251 l(2)(a), concerning technical assistance, o r § 2520, concerning good faith reliance) served ultim ately as the basis for the co u rt’s ruling. 128

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Applicability of Post-Employment Restrictions in 18 U.S.C. § 207 to a Former Government Official Representing a Former President or Vice President in Connection with the Presidential Records Act Title 18, section 207, U.S. Code, would not prohibit a former government official from representing a former President or former Vice President in connection with his role under the Presidential Records Act, 44 U.S.C. §§ 2201-2207 (1994). June 20, 2001 MEMORANDUM OPINION FOR THE ASSOCIATE COUNSEL TO THE PRESIDENT You have requested our opinion whether 18 U.S.C. § 207 (1994 & Supp. II 1996) would prohibit a former government official from representing a former President in connection with his role under the Presidential Records Act, 44 U.S.C. §§ 2201-2207 (1994) (“PRA”), and whether it would prohibit such a person from representing a former Vice President in a similar capacity. We conclude that 18 U.S.C. § 207 would not prohibit such representation. 1 I. Title 18, section 207 imposes restrictions on the ability of former federal employees to represent third parties on certain matters before certain federal agencies and other entities. Specifically, 18 U.S.C. § 207(a)(1) prohibits [a]ny person who [was] an officer or employee (including any special Government employee) of the executive branch of the United States . . . [from] knowingly mak[ing], with the intent to influence, any communication to or appearance before any officer or employee of any department, agency, court, or court-martial of the United 1 On January 19, 2001, Counsel to the President Beth Nolan asked our opinion on this same question, limited to the representation of a former President. At that time, we orally advised Ms. Nolan that if the individual representing the former President were employed under the Presidential Transition Act, 3 U.S.C. § 102 note (1994) (“PTA”), and did not receive compensation for the representation from any source other than the transition, he or she would not be barred by 18 U.S.C. § 207 from providing such representation during the six months covered by the PTA (i.e., six months following the change in presidential administrations). That advice was based upon a 1988 opinion of this Office. See Letter for Hon. Frank Q. Nebeker, Director, Office of Government Ethics, from Douglas W. Kmiec, Assistant Attorney General, Office of Legal Counsel (Nov. 18, 1988). You have now requested our opinion whether 18 U.S.C. § 207 permits a former government official to represent a former President in connection with his advisory role under the PRA even after the six-month period covered by the PTA. You have also asked us to address the same question with regard to representation of a former Vice President. 120 227-329 VOL_25_PROOF.pdf 130 10/22/12 11:10 AM Applicability of Post-Employment Restrictions in 18 U.S.C. § 207 States or the District of Columbia, on behalf of any other person (except the United States or the District of Columbia) in connection with a particular matter— (A) in which the United States or the District of Columbia is a party or has a direct and substantial interest, (B) in which the person participated personally and substantially as such officer or employee, and (C) which involved a specific party or specific parties at the time of such participation. Under 18 U.S.C. § 207(c), certain senior personnel face an additional prohibition. Specifically, a person falling within categories set out in section 207(c)(2) may not, within 1 year after the termination of his or her service or employment . . . knowingly make[], with the intent to influence, any communication or appearance before any officer or employee of the department or agency in which [the] person served . . . , on behalf or any other person (except the United States), in connection with any matter on which such person seeks official action by any officer or employee of such department or agency. 2 Section 207 also specifies an exception to its various prohibitions that is particularly relevant here: It provides that “[t]he restrictions contained in this section shall not apply to acts done in carrying out official duties on behalf of the United States.” Id. § 207(j)(1). Under the PRA, the Archivist of the United States is directed to restrict public access to prior presidential administrations’ records that meet certain criteria defined by the statute. See 44 U.S.C. § 2204(a)-(b)(1). The PRA further provides that “[d]uring the period of restricted access . . . the determination whether access to a Presidential record or reasonably segregable portion thereof shall be restricted 2 Section 207(d) may also be relevant. That section establishes further restrictions on the postemployment activities of certain “very senior personnel” of the Executive Branch and independent agencies. Specifically, it prohibits a person (defined in section 207(d)(1)(A)-(C)), within one year following the termination of his or her service, from communicating on behalf of any other person (except the United States) with any officer or employee of the agency or department where the covered person previously served in the year before his or her service terminated, and with any person appointed to an executive position listed in 5 U.S.C. §§ 5312, 5313, 5314, 5315, or 5316 (Supp. V 1999). Those subject to section 207(d) include persons appointed by the President under 3 U.S.C. § 105(a)(2)(A) (1994) or by the Vice President under 3 U.S.C. § 106(a)(1)(B). 121 227-329 VOL_25_PROOF.pdf 131 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 shall be made by the Archivist, in his discretion, after consultation with the former President.” Id. § 2204(b)(3). 3 In the case of Vice-Presidential records, the PRA provides that they “shall be subject to the provisions of [the PRA] in the same manner as Presidential records,” and that “[t]he duties and responsibilities of the Vice President, with respect to Vice-Presidential records, shall be the same as the duties and responsibilities of the President under this chapter with respect to Presidential records.” Id. § 2207. Regulations implementing the PRA anticipate that former Presidents may designate representatives in matters relating to their consultative role under the PRA. See 36 C.F.R. § 1270.46(a) (2001) (“The Archivist or his designee shall notify a former President or his designated representative(s) before any Presidential records of his Administration are disclosed.”); see also Exec. Order No. 12667 (Jan. 18, 1989) (providing that the Archivist shall notify a former President “or his designated representative” of the Archivist’s decision whether to honor the former President’s assertion of executive privilege). 4 During the Clinton Administration, the White House Counsel’s Office expressed the view that a former President would require legal advice in order to consult effectively with the Archivist as contemplated by the PRA, and that an attorney advising a former President on such matters would need to communicate on the former President’s behalf not just with the Archivist, but with the current White House and possibly other federal agencies as well. The question here is whether, under section 207’s postemployment restrictions, an attorney could engage in such communications on the former President’s behalf if the attorney had served in the White House Counsel’s Office or elsewhere in the federal government during the former President’s administration. The same question applies to representation of a former Vice President in connection with the PRA. The National Archives and Records Administration (“NARA”) states that although the designated representatives of former Presidents Reagan and Bush are former officials from their respective administrations, “concern about this issue was simply never contemplated by NARA, OGE, DOJ, or any incumbent or former President or Vice President or designated representative prior to the end of the Clinton Administration.” See Letter for Robert W. Cobb, Associate Counsel to the President, from Gary M. Stern, General Counsel, National Archives and Records Administration at 1 (May 3, 2001) (“Stern Letter”). 3 The PRA also specifies that none of its provisions is to be construed to “confirm, limit, or expand any constitutionally-based privilege which may be available to an incumbent or former President.” 44 U.S.C. § 2204(c)(2). 4 Similarly, the PRA itself recognizes that former Presidents may, in certain limited circumstances, be represented by third parties for purposes of the PRA. Specifically, the PRA provides that, “[u]pon the death or disability of a . . . former President, any discretion or authority the . . . former President may have had under this chapter shall be exercised by the Archivist unless otherwise previously provided by the . . . former President in a written notice to the Archivist.” 44 U.S.C. § 2204(d). 122 227-329 VOL_25_PROOF.pdf 132 10/22/12 11:10 AM Applicability of Post-Employment Restrictions in 18 U.S.C. § 207 II. The key question is whether an individual who communicates with federal agencies on behalf of a former President or Vice President in these circumstances is, within the meaning of section 207, acting “on behalf of any other person (except the United States or the District of Columbia).” 5 18 U.S.C. § 207(a); see id. § 207(c). If so, section 207’s prohibitions apply. If, however, such an individual is “carrying out official duties on behalf of the United States,” id. § 207(j)(l), or is otherwise not acting “on behalf of any other person (except the United States . . .),” section 207’s prohibitions do not apply. For the reasons discussed below, we conclude that section 207’s prohibitions do not apply to this sort of representation. This Office has previously concluded that in using the phrase “on behalf of” in section 207, “Congress intended . . . to reach only communications made as a representative of another, not communications that merely support another or another’s position.” Memorandum for Michael Boudin, Deputy Assistant Attorney General, Antitrust Division, from J. Michael Luttig, Assistant Attorney General, Office of Legal Counsel, Re: Application of 18 U.S.C. § 207(a) to Pardon Recommendation Made by Former Prosecutor at 3 (Oct. 17, 1990) (“Luttig Memorandum”). Typically, the hallmark of such a relationship is “at least some degree of control by the principal over the agent who acts on his or her behalf.” Id. at 6; see Restatement (Second) of Agency § 1(1) (1958). An attorney representing a former President in connection with the President’s consultative role under the PRA would be acting “on behalf of” the former President as defined in section 207. See Public Citizen, Inc. v. Department of Justice, 111 F.3d 168, 172 (D.C. 5 In at least three circumstances, we could conclude that at least some of section 207 would not apply, without reaching the “on behalf of” issue. None of these circumstances, however, allows us to avoid the “on behalf of” issue here. First, we assume that the attorney representing the former President or Vice President would be a former employee of the White House or Vice President’s Office, respectively, and that the kind of communications being contemplated here would include communications with either the White House or Vice President’s Office. If this were not the case, then section 207(c) would not apply, since it covers only appearances before and communications with the federal agency in which the person was previously employed. Section 207(a) would apply, however, since it covers appearances before and communications with any federal agency or department. As to some former officials, moreover, section 207(d) would apply if the communications at issue were with either the White House or any official appointed to an Executive Branch position listed in 5 U.S.C. § 5312, 5313, 5314, 5315, or 5316. Second, we assume that at least some of the contemplated communications would take place within one year of the attorney’s departure from the government. If this were not the case, sections 207(c) and (d) would again not apply, this time because they each establish only a one-year ban on communications. Section 207(a) would still apply, however, since it imposes a lifetime ban. Third, we assume that the contemplated communications might involve “matter[s] in which [the attorney concerned] participated personally and substantially” while in the government. 18 U.S.C. § 207(a)(1)(B). If this were not the case, section 207(a) would not apply. Sections 207(c) and 207(d) would still apply, however, since their prohibitions are not so confined. 123 227-329 VOL_25_PROOF.pdf 133 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 Cir. 1997) (describing attorneys employed by former Presidents in connection with their consultative roles under the PRA as having “served solely in a representative capacity”). The same is true for an attorney representing a former Vice President in such a capacity. Whether the attorney is thereby acting on behalf of the United States or on behalf of “any other person” turns on whether, in the unique circumstances of the PRA, a former President or Vice President is viewed as retaining at least some aspects of his official role rather than as occupying solely the position of a private person. As this Office has previously explained, Congress’s “only concern” in passing and amending section 207 “was with preventing government employees from socalled ‘revolving door’ representation of private parties before the government.” Luttig Memorandum at 4 (citing S. Rep. No. 95-170, at 32 (1977)) (emphasis added). We have found no evidence that Congress thought of former Presidents fulfilling their role under the PRA as “private parties.” On the contrary, “the former President in this context can hardly be viewed as an ordinary private citizen.” Public Citizen, 111 F.3d at 170. Rather, the PRA assigns former Presidents a special, quasi-official role because, in certain circumstances, they may be uniquely situated to address the interests of the United States. Typically, those circumstances involve questions of executive privilege. See id. (In the context of the PRA, a former President “retains aspects of his former role—most importantly . . . the authority to assert the executive privilege regarding Presidential communications.”). When the Archivist is called upon to determine whether certain presidential records created during a former President’s administration ought to be released, considerations of executive privilege may inform that determination. And although the privilege belongs to the Presidency as an institution and not to any individual President, the person who served as President at the time the documents in question were created is often particularly well situated to determine whether the documents are subject to a claim of executive privilege and, if so, to recommend that the privilege be asserted and the documents withheld from disclosure. Cf. id. at 171 (“The former President clearly qualifies as an expert on the implications of disclosure of Presidential records from his administration.”). In providing advice to the Archivist on such matters, a former President helps to support the institution of the Presidency and the constitutionally-based executive privilege. The Supreme Court reached a similar conclusion in Nixon v. Administrator of General Services, 433 U.S. 425 (1977). In that case, the Court addressed the issue whether a former President may assert executive (sometimes styled “Presidential”) privilege as to certain documents relating to his term as President and held by the current administration. Because the current administration did not support the former President’s assertion of privilege, the Court recognized that the case involved an “assertion of a privilege against the very Executive Branch in whose name the privilege is invoked.” Id. at 447-48. The Court acknowledged that, to the 124 227-329 VOL_25_PROOF.pdf 134 10/22/12 11:10 AM Applicability of Post-Employment Restrictions in 18 U.S.C. § 207 extent effective communication between a sitting President and his advisers might be chilled by the disclosure of documents relating to a prior administration, an incumbent may decide to assert a privilege as to “confidences of a predecessor when he believes that the effect [of disclosure] may be to discourage candid presentation of views by his contemporary advisers.” Id. at 448. Nevertheless, a sitting President is not the only one competent to assert the privilege: Unless [the President] can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends. The confidentiality necessary to this exchange cannot be measured by the few months or years between the submission of the information and the end of the President’s tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore, the privilege survives the individual President’s tenure. Id. at 448-49 (quoting, and adopting, Brief for the Solicitor General on Behalf of Federal Appellees). Thus, because protection of the executive privilege is “for the benefit of the Republic,” and because a former President is in a special position to determine the propriety of asserting that privilege regarding records produced during his tenure, former Presidents are competent to assert the privilege as to such records. Indeed, in asserting this privilege, a former President speaks not only for “the benefit of the Republic” but also in the “name” of the Executive Branch. Id. at 448. 6 Accordingly, an individual who represents a former President in this context is not engaged in the kind of representation of a purely private entity at which section 207’s prohibitions are aimed. Moreover, prohibiting a former government official from representing a former President in connection with his consultative role under the PRA would not further the underlying policy aims of section 207. The problems of undue influence and divided loyalties that characterize most representational relationships prohibited by section 207 are absent in this context. Here, Congress has expressly defined a consultative role for former Presidents. In faithfully advising and representing the 6 That a former President and a current President may differ as to the propriety of disclosing certain presidential documents from the former President’s administration does not alter this conclusion. In Nixon itself, President Nixon’s attempted assertion of executive privilege was not supported by either President Ford or President Carter. See 433 U.S. at 449. But that did not prevent the Court from concluding that President Nixon was competent to assert the privilege as to certain documents from his time in office. Moreover, it is not uncommon for different agencies or departments of the Executive Branch to take different public positions on certain legal questions, each one claiming to speak on behalf of the United States. See generally Michael Herz, United States v. United States: When Can the Federal Government Sue Itself?, 32 Wm. & Mary L. Rev. 893 (1991). 125 227-329 VOL_25_PROOF.pdf 135 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 former President as he fulfills that role, an attorney would simply be helping the President to effectuate a special role expressly approved by Congress. Our conclusion accords with practice. As NARA notes, former Presidents Reagan and Bush have both been represented by former government officials in connection with their consultative roles under the PRA. Stern Letter at 1. Although it appears that the representation in both cases was undertaken without any explicit consideration of section 207’s possible application, see id., this practice lends some support to our conclusion that section 207 simply does not apply to representation provided to a past President in connection with his role under the PRA. We reach the same conclusion with respect to the representation of former Vice Presidents. In directing that “Vice-Presidential records shall be subject to the provisions of [the PRA] in the same manner as Presidential records, “ 44 U.S.C. § 2207, the PRA establishes a consultative role for former Vice Presidents so that they, like former Presidents, may identify the interests of the United States at stake in the record disclosure process. And while it is true that only a President or former President is competent to assert executive privilege, a former Vice President may make recommendations to incumbent or former Presidents whether to assert the privilege in particular cases. We see no basis in the text or legislative history of the PRA for concluding that an individual representing a former Vice President in connection with the PRA should be subject to the strictures of section 207 any more than if he were representing a former President. Finally, we note that to the extent it remains unclear whether section 207’s prohibitions apply in this context, the rule of lenity requires that any remaining ambiguity in the statute be construed so as to narrow, not broaden, the statute’s prohibitions. That rule “demand[s] resolution of ambiguities in criminal statutes in favor of the defendant.” Hughey v. United States, 495 U.S. 411, 422 (1990); see Liparota v. United States, 471 U.S. 419, 427 (1985) (“[A]mbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”) (quoting Rewis v. United States, 401 U.S. 807, 812 (1971)); Luttig Memorandum at 5 (invoking the rule of lenity as one justification for a narrow reading of “on behalf of” as used in section 207). DANIEL L. KOFFSKY Acting Assistant Attorney General Office of Legal Counsel 126 227-329 VOL_25_PROOF.pdf 136 10/22/12 11:10 AM

Write a legal research memo on the following topic.

The Effect of an Appropriations Rider on the Authority of the Justice Department to File a Supreme Court Amicus Brief A rid er in the 1990 appropriations legislation for the Justice D epartm ent, the F ederal C o m m u ­ nications C om m ission, and other agencies that provides that no funds appropriated by th at legislation m ay be used to repeal, m odify, or reexam ine certain F C C policies does not forb id the Ju stice D epartm ent from filing a Suprem e C ourt am icus b rie f in a case in w hich those policies are at issue. Febrary 5, 1990 Me m orandum O p in io n for the Ac t i n g S o l i c i t o r G e n e r a l This responds to your request for our opinion on whether a rider in the Departments o f Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1990 (“ 1990 Appropriations Act”), Pub. L. No. 101-162, 103 Stat. 988 (1989) forbids the Department of Justice from filing an amicus brief with the Supreme Court in Metro BroadcastingInc. v. FCC, No. 89-453, and Astroline Communications Co. v. Shurberg Broad­ casting, No. 89-700.1 For the reasons discussed below, we agree with your conclusion that the rider does not forbid such a filing. I. Background The 1990 Appropriations Act provides funding for several federal govern­ ment entities, including the Department of Justice (title II), the Judiciary (title IV), and a variety of agencies, among them the Federal Communica­ tions Commission (title V). A rider appears in the provision of title V making appropriations for the Federal Communications Commission (“FCC”), which is also found in materially the same language in the two prior annual appropriations acts.2 It reads: 'S e e M em orandum for William P. Barr. Assistant Attorney General, Office of Legal Counsel, from John G. Roberts, Jr., Acting Solicitor General, Re: Use o f Departmental Appropriations to File Briefs Amicus Curiae in Metro Broadcasting, Inc. v. FCC, No. 89-453 and Astroline Comm. Co. v. Shurberg Broadcasting, No. 89-700 (Jan. 11, 1990) (“Roberts Memorandum”). 2 The original provision from which the current rider is derived appears in Pub. L. No. 100-202, 101 Stat. 1329-1, 1329-31 (1987). See also Pub. L. No. 100-459, 102 Stat. 2186, 2216-17 (1988). 13 [N]one of the funds appropriated by this Act shall be used to repeal, to retroactively apply changes in, or to continue a re­ examination of, the policies of the Federal Communications Commission with respect to comparative licensing, distress sales and tax certificates granted under 26 U.S.C. 1071, to expand minority and women ownership of broadcasting licenses . . . other than to close MM Docket No. 86-484 . . . . 103 Stat. at 1020. No such rider appears in title II, which appropriates funds for the Justice Department, not even in the “General Provisions” of that title. 103 Stat. at 995-1006.3 Nor does any such rider appear in title IV, which appropriates m onies for the federal courts, including the Supreme Court. Id. at 1010-16. Finally, no such rider appears in title VI (“General Provisions”), which sets forth general restrictions on the use of the funds appropriated under all of the preceding titles of the Act. Id. at 1031-40. The questions of the FCC rider’s possible application to a Justice Depart­ m ent amicus filing initially arose in August 1988, when the Civil Rights Division sought permission to file an amicus brief with the Court of Appeals for the District of Columbia Circuit in what is now the Metro Broadcasting case.4 Both the Civil Rights Division and the Solicitor General concluded, as do we here, that the rider does not prohibit amicus filings by the Depart­ ment. The Solicitor General authorized Civil Rights to file an informational amicus brief with the court of appeals,5 and such a brief was in fact filed.6 II. AmaEysns The FCC rider prohibits the use of “funds appropriated by this Act . . . to repeal, to retroactively apply changes in, or to continue a reexamination of, the [specified] policies of the Federal Communications Commission.” 103 Stat. at 1021. It is clear from the language and purpose of the rider, and from the overall structure of the 1990 Appropriations Act, that the rider was 3The “G eneral Provisions" o f title II do otherwise impose restrictions on the use of Justice Department funds. See 1990 Appropriations Act §§ 205-206, 103 Stat. at 1005 (restrictions on abortion-related use o f funds). 4 See M em orandum for the Solicitor General, from W illiam Bradford Reynolds, Assistant Attorney G eneral, Civil Divison, Re: Steele v. FCC and Winter Park Communications, Inc. v. FCC. Nos. 84-1176 & 85-1755 (D.C. Cir.) (July 22, 1988) (rider did not prohibit amicus filing in court of appeals); hand­ written com m ents o f the Solicitor General on M emorandum for the Solicitor General, from Thomas W. M errill, D eputy Solicitor General, Re: Steele v. FCC (Aug. 3, 1988) (rider did not prohibit filing of an “inform ational" am icus brief). 5 In his handw ritten marginal comments authorizing a filing, the Solicitor General wrote that “ [t]he argum ent relating to the appropriations rider is troublesome but I think Civil Rights has the better of it." He further observed that a purely “informational” filing would not “come within ten miles of the appro­ priation rid er’s prohibition (even on its m ost expansive interpretation).” 6See B rie f fo r the U nited States as Am icus Curiae. Winter Park Comm., Inc. v. FCC & Metro Broad­ casting, Inc. v FCC. D.C. Cir. Nos. 85-1755 & 85-1756 (Aug. 29, 1988). 14 intended to impose restrictions only on the FCC, and thus does not forbid the filing o f an amicus (or any other) brief by the Department of Justice. Even if this conclusion were less than clear, we would resolve any ambiguity in favor o f this construction to avoid the very serious constitutional problems that would exist were the rider interpreted to prevent the Department from filing in the Court. The 1990 Appropriations Act is essentially an omnibus enactment com­ prising a number of separate and unrelated appropriations “Acts” (titles I-V), and a number of general provisions that apply to all titles of the Act (title VI). Each of titles I-IV is expressly designated an “Act.” Id. at 995, 1006, 1010, 1016. For example, title II, which appropriates funds for the Justice Department, provides that title II “may be cited as the 'Department of Jus­ tice Appropriations Act, 1990.” ’ Id. at 1006.7 With the exception of title VI, which for understandable reasons Congress might not separately designate an “Act,” title V is the only title that is not expressly designated an Act. Be­ cause it is not designated an “Act ” there is some question as to whether the term “this Act” in title V was intended to refer only to title V or to the entire 1990 Appropriations Act. We believe that title V also should be considered a separate act for the purpose of construing the provisions within that title, which appears to be the only purpose for Congress’ separate designation of titles I-IV as “Acts.” We can think of no substantive reason why Congress would have wanted title V treated any differently in this respect from titles I-IV. Indeed, it appears that the only reason title V may not have been designated an “Act” is that, unlike titles I-IV, it appropriates monies to a number of different federal government entities8 and, as a consequence, would not have been easily entitled. It follows from the fact that title V was intended to be understood as a separate “Act” for the same purposes that titles I-IV are to be so understood that the term “this Act” in the title refers only to title V, not to the entire 1990 Appropriations Act.9 Accordingly, we conclude that the expenditure restriction in the rider applies only to the FCC appropria­ tions made in title V.10 Interpreting the rider as applicable only to the FCC is the interpretation ’ The Act provides that title I “may be cited as the 'Departm ent of Commerce Appropriations Act, 1990"', see 103 Stat. at 995; that title III “may be cited as the 'Departm ent o f State Appropriations Act, 1990',” id. at 1010; and that title IV “may be cited as "The Judiciary Appropriations Act, 1990',” id. at 1016. •Each o f titles I-IV appropriates monies for a single agency or, in the case o f title IV, an entire branch o f government (the federal judiciary). ’ This interpretation of the term is consistent with the other uses o f the term in title V. See 103 Stat. at 1018 (Commission on the Bicentennial of the United States Constitution); id. at 1022 (Securities and Exchange Commission); id. at 1023 (Small Business Administration); id. at 1024 (same); id. at 1028 (same). 10The restriction would apply to, although presumably have no practical effect on, the other agencies for which appropriations are made in title V. 15 most consistent with the rider’s character as a proviso. Sums are appropri­ ated “[f]or necessary expenses of the Federal Communications Commission . . . Provided!” that the rider’s terms are observed. 103 Stat. at 1020. While it would be possible to read the provision as conditioning the FCC appro­ priations on Commerce, Justice, State and other agency compliance with the terms o f the rider, clearly the most natural reading of the proviso is as a condition only on the immediately preceding appropriation to the FCC. It would be odd indeed for Congress to condition one agency’s appropriations on compliance by other agencies with enacted prohibitions. This is espe­ cially the case where, as here, the other agencies have no apparent authority to engage in the prohibited activities. The legislative history confirms that Congress intended the rider to apply only to the FCC. The Senate Report on the bill that first included the rider explains the purpose of the rider as follows: The Committee has inserted a provision in the bill which bars the Federal Communications Commission from expend­ ing funds to repeal, retroactively restrict, or continue a pending reexamination of, longstanding rules to promote the owner­ ship o f broadcasting licenses by minority group members and women. The FCC has commenced an inquiry, In the Matter of Reexamination of the Commission’s Comparative Licens­ ing, Distress Sales and Tax Certificate Policies Premised on Racial, Ethnic or Gender Classifications, MM Docket No. 86484, which calls into question the advisability and legality of these rules. The Committee believes the inquiry is unwarranted . . . . S. Rep. No. 182, 100th Cong., 1st Sess. 76 (1987) (emphasis added) (“Sen­ ate Report”). The report continues with instructions to the FCC to close MM Docket No. 86-484, and to resolve within sixty days certain proceed­ ings that had been either remanded by the District of Columbia Circuit Court o f Appeals — including the Shurberg case — or held in abeyance pending the outcome of the FC C ’s rulemaking, “in a manner consistent with the policies that mandated incentives for minorities and women in broadcast ownership.” Id. at 77. These passages make clear that the purpose of the rider was to prevent the FCC from using its appropriated funds to continue the then-pending FCC administrative proceeding reexamining the minority and gender prefer­ ence policies11 or, at most, to prevent the FCC from conducting any such reexamination in the future. The rider even identifies by docket number 11 The FC C ’s rulem aking followed a request by the FCC to the D.C. Circuit — before which a constitu­ tional challenge to the F C C ’s comparative licensing gender preference policy was pending — to permit the agency to reexam ine its preferences. See Race and Gender Preferences, 1 F.C.C. Red 1315 (1986) Continued 16 (MM Docket No. 86-484) and, almost verbatim, the title of the specific FCC rulemaking (or “reexamination”) with which it was concerned.12 The structure of the 1990 Appropriations Act also supports the conclusion that Congress did not intend the rider as a restriction on the use o f all funds appropriated in the 1990 Appropriations Act. If Congress intended to apply the rider’s restrictions to all of the federal entities, presumably it would have inserted language of restriction in the respective titles— each of which in­ cludes other restraints on the use of the appropriated monies—or, more likely, in title VI, a catch-all section that includes provisions limiting the use of funds appropriated in any of the earlier titles. Neither titles I-IV nor title VI contains any restriction substantively similar to that in the rider. Even assuming that the rider extends to the funds appropriated to the Department of Justice, we do not believe that filing an amicus brief would be prohibited. The rider only prohibits the expenditure of funds “to repeal, to retroactively apply changes in, or to continue a reexamination o f ’ the specified FCC policies. The Department of Justice does not even have the power to “repeal” or to “apply changes in” an FCC policy. That administra­ tive power rests in the FCC and, through legislation, Congress. Nor, we think, can the filing of an amicus (or any other) brief be regarded as “continufing] a reexamination” of the FCC policies at issue.13 First, read in the context of the immediately preceding proscriptions on “repeal” and “changes in” the FCC policies, the term “continu[ing] a reexamination” is " (...continued) (MM Docket No: 86-484), modified, 2 F.C.C. Red 2377 (1987). The FCC had sought this reexam ination in part because o f its opinion at that time that both the racial and the gender preferences were unconstitu­ tional. See B rief f o r the Federal Communications Commission on Rehearing En Banc in Steele v. FCC, D.C. Cir. No. 84-1176. The FCC was engaged in preparing findings in the rulemaking when Congress decided to abort the proceedings. In obedience to Congress’ directive, the FCC closed the rulemaking and reinstituted the preferences on January 14, 1988. See FCC 88-17. "T h ere is no suggestion in either the text or legislative history o f the subsequently-enacted riders that Congress’ purposes for including the rider in the FCC appropriation has changed since the rider was first enacted in 1987. See S. Rep. No. 144, 101st Cong., 1st Sess. 86 (1989) (Committee “recom mends retention” of provisos enacted previously); S. Rep. No. 388, 100th Cong., 2d Sess. 79 (1988) (Com m it­ tee has "continued language from previous appropriations acts with regard to . . . minority and women ow nership o f broadcasting licenses”). 13 Arguably, no expenditure made after closure of the rulemaking proceeding in MM Docket No. 86484 by any o f the federal entities for which appropriations were made in the 1990 Appropriation Act could run afoul o f this portion of the rider’s prohibition. The rider could fairly be interpreted to prohibit only the expenditure of funds to continue the particular “reexamination” o f the FCC policies then in progress in MM Docket No. 86-484, which was closed on January 14, 1988. See, e.g., S. Rep. No. 182 at 76 (rider inserted to prohibit expenditures to “continue a pending reexamination" of the FCC policies (em phasis added)). If the rider were so interpreted, it would not prohibit a new “reexamination” o f the policies. Congress clearly understood and appreciated the difference between beginning a reexam ination and continuing a reexam ination of a particular matter, as evidenced by its prohibition in the same appro­ priations act o f expenditures “to repeal, to retroactively apply changes, or to begin or continue a reex­ amination of the rules and policies established to administer such rules o f the Federal Com m unications Commission as set forth at section 73.3555(c) of title 47 of the Code of Federal Regulations.” See 103 Stat at 1021 (em phasis added). 17 best understood to refer only to administrative reexamination of the poli­ cies.14 A court does not examine policies qua policies; it reviews the legality o f the policies. Thus, while the prohibition might prevent commencement o f a new administrative inquiry into the wisdom (or even the legality) of the agency’s racial and gender preference policies, we do not believe it would stand as a bar to a legal challenge to those policies before the courts of law.15 Second, even if the rider were interpreted to extend to challenges in a judicial forum, we do not believe that the filing of a brief once the Court has decided to hear a challenge entails the use of funds “to continue a reexami­ nation” o f the FCC policies. The Court perhaps expended funds to continue the reexamination by docketing the cases, and will continue to do so by retaining the case on its docket for briefing, argument and disposition. With certiorari granted, however, the Department would only be expending funds to participate in a “reexamination” that has already been continued; it would not be expending funds “to” continue a reexamination. The reexamination, if that it be, see discussion infra, is underway and will continue, whether or not the Department participates. The Department fully complied with the terms o f the prohibition (assuming that it applies) by opposing the grant of certiorari. Finally, the Supreme Court’s review of these cases would not properly be considered a “reexamination” of the FCC policies because the Court has never previously examined these policies. One could argue that any second and successive examination constitutes a “reexamination” because the FCC has already once examined them. We believe, however, that the better read­ ing of the rider (regardless to whom it applies) is as a prohibition on a second and successive examination by the same entity. This especially would seem to be the better interpretation, given that the prohibition is against “continuing” a reexamination, not merely reexamining, the specified poli­ cies. One does not ordinarily think of a second body “continuing” a reexamination begun by another body. O f course, this interpretation finds substantial support in the legislative history. See discussion supra at 16. For the aforementioned reasons, we believe it is clear that Congress did not intend the rider to serve as a limitation on Department of Justice expen­ ditures. Even if Congress’ intent were less than clear, however, we would 14 In the Senate Report accompanying the first appropriations bill to which the rider was attached, the C om m ittee instructed the FCC to resolve certain pending cases in a manner consistent with the FCC’s racial and gender preference policies. S. Rep. No. 182 at 77. The Com m ittee’s instruction identifies the cases to w hich it refers as ones w hich had been either remanded to the FCC by the District of C olum bia C ircuit Court o f Appeals, o r held in abeyance by the FCC pending reexam ination of its policies. T he Com m ittee thus merely instructed the FCC to apply the racial and gender preference policies in adm inistrative adjudication, which is consistent with our view that the rider was directed only at adm inistrative actions that might lead to reversal of the specified FCC policies. 13 Indeed, if the prohibited “reexamination” of FCC's policies bars a Justice Department legal challenge to those policies, it would also preclude judicial review o f those policies, since the federal judiciary is funded by title IV o f the Act, and would be subject to the same restrictions in the rider. Apart from the serious constitutional issue that would be presented by a provision purporting to prevent constitutional challenges to a law, see, e.g., Webster v. Doe, 486 U.S. 592, 603 (1988), it would be extraordinary to construe a provision to prevent judicial review sub silentio. 18 interpret the rider to permit an amicus filing so as to avoid the serious consti­ tutional problems, see NLRB v. Catholic Bishop, 440 U.S. 490 (1979), that would otherwise exist. A statute that purported to prohibit the Executive from filing an amicus or other brief on the constitutionality of federal agency action or policy would raise the most serious constitutional concerns.16 The President is constitutionally required to take care that the laws, in­ cluding the Constitution, be faithfully executed. See U.S. Const, art. II, § 3. Before entering office, the Constitution requires that he “solemnly swear” that he will “to the best of [his] Ability, preserve, protect and defend the Constitution of the United States.” Id. art. II, § 1, cl. 8. The filing of briefs in courts of law through his subordinates—particularly as such filings may bear on the legality of action taken by Executive departments or agencies— is integral to the discharge of his constitutional duty to see that the laws are faithfully executed. As a consequence, while the question never has been and may never be litigated, it is doubtful that Congress, through exercise of its appropriations power or otherwise, could ever prevent the Executive from advancing before the courts a particular view of the constitutionality o f an Executive agency action or policy. C O N C L U SIO N For the foregoing reasons, we conclude that the 1990 Appropriations Act does not bar the Department of Justice from filing an amicus brief with the Supreme Court in the Metro Broadcasting litigation. J. MICHAEL LUTTIG Principal Deputy Assistant Attorney General Office o f Legal Counsel '‘ Interpreting the rider so that it would extend to the Department of Justice would result in its applica­ tion to the judiciary, as well. Application of the rider to prohibit the judiciary from expending any o f its appropriated funds "to continue a reexamination” of the FCC policies would raise separate, but equally serious, constitutional questions. 19

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Application of the Neutrality Act to Official Government Activities Section 5 o f the Neutrality Act, 18 U.S.C. § 960, forbids preparation for, or participation in, m ilitary expeditions against a foreign state w ith which the United States is at peace. This provision is intended solely to prohibit persons acting in a private capacity from taking actions that m ight interfere with the foreign policy and relations of the United States. It does not proscribe activities conducted by Governm ent officials acting within the course and scope o f their duties as officers of the United States. April 25, 1984 M em orandum O p in io n f o r t h e Attorney G eneral This memorandum is written in connection with recent allegations1 that several United States Government officials may have violated § 5 of the Neutrality Act, 18 U.S.C. § 960, which forbids the planning of, provision for, or participation in “any military or naval expedition or enterprise to be carried on from [the United States] against the territory or dominion of any foreign prince or state . . . with whom the United States is at peace.” To assist you in the discharge of your responsibility under Title VI of the Ethics in Government Act, 28 U.S.C. §§ 591-598, to determine preliminarily whether such charges, if true, might constitute a crime, we have undertaken a thorough examination of the Neutrality Act (Act), with particular attention toward § 5, its legislative history, the historical circumstances surrounding its enactment, existing judi­ cial precedent regarding the Act, and the history of Executive and Legislative relations with respect to the Act’s application. Based upon these consider­ ations, we have concluded that the Act does not proscribe activities conducted by Government officials acting within the course and scope of their duties as officers of the United States but, rather, was intended solely to prohibit actions by individuals acting in a private capacity that might interfere with the foreign policy and relations of the United States. 1 T he m ost recent assertions in this re g a rd that have b een brought to o u r attention are those made in a letter to you, d ated A pril 9, 1984, from a m ajority o f the D em ocratic Party members o f the Com m ittee on the Judiciary o f the H ouse o f Representatives, taking the position that several G overnm ent officials may have violated th e A ct by participating in a p lan “to covertly aid , fund and participate in a military expedition and enterprise utilizing N icaraguan exiles fo r the purpose o f attacking and overthrow ing the governm ent of N icaragua, a country w ith which the U n ited States is officially at peace." 58 I. Evolution of the Neutrality Act A. President W ashington’s Proclamation o f 1793 The Neutrality Act was enacted in 1794 following President Washington’s Proclamation of April 22, 1793, regarding the war between France and Great Britain, requiring the citizens of the United States “with sincerity and good faith [to] adopt and pursue a conduct friendly and impartial toward the belliger­ ent powers,” warning citizens “to avoid all acts and proceedings whatsoever, which may in any manner tend to contravene such disposition,” and threatening to prosecute those “who shall, within the cognizance of the courts of the United States, violate the law of nations with respect to the powers at war, or any of them.”2 The President viewed the Proclamation as a necessary measure toward restraining the natural sympathy and enthusiastic support of the American people for the French cause, bom of France’s generous aid to the colonists during the American Revolution and the Americans’ strong identification with the goals of the French Revolution. See generally C. Fenwick, The Neutrality Laws o f the United States 16-23 (1913) (Fenwick).3 Writing nearly one2 The Proclam ation provided: W hereas it appears that a state o f w ar exists betw een Austria, Prussia, Sardinia, G reat B ritain, and the U nited N etherlands, on the one part, and France on the other; and the duty and interest o f the U nited States require, that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial tow ards the belligerent powers: I have therefore thought fit by these presents, to declare the disposition o f the U nited States to observe the conduct aforesaid tow ards those pow ers respectively; and to exhort and w arn the citizens o f the U nited States carefully to avoid all acts and proceedings w hatsoever, which may in any m anner tend to contravene such disposition. And I do hereby also make known, that w hosoever o f the citizens o f the U nited States shall render him self liable to punishm ent o r forfeiture under the law o f nations, by com m itting, aiding, or abetting hostilities against any o f the said pow ers, o r by carrying to any o f them, those articles which are deem ed contraband by the m odem usage o f nations, will not receive the protection of the United States, against such punishm ent o r forfeiture; and further, that 1 have given instruc­ tions to those officers, to whom it belongs, to cause prosecutions to be instituted against all persons, who shall, w ithin the cognizance o f the C ourts o f the U nited States, violate the law of nations, with respect to the powers at w ar, o r any o f them. 32 Writings o f George Washington 430 (J. Fitzpatrick ed 1939). See also 1 Messages and Papers o f the Presidents 156 (J. Richardson ed. 1896). 3 President W ashington wrote to Secretary o f State Jefferson on A pril 12, 1793: Your letter o f the 7 instant was brought to me by the last post. W ar having actually com m enced betw een France and G reat Britain, it behoves the G overnm ent o f this C ountry to use every m eans in its pow er to prevent the citizens thereof from em broiling us w ith either o f those pow ers, by endeavouring to m aintain a strict neutrality. I therefore require that you w ill give the subject mature consideration, that such m easures as shall be deem ed m ost likely to effect this desirable purpose may be adopted w ithout delay; for 1 have understood that vessels are already designated privateers, and are preparing accordingly. Such other m easures as may be necessary for us to pursue against events which it may not be in our pow er to avoid or controul, you w ill also think of, and lay them before me at my arrival in Philadelphia, fo r w hich place I shall set out Tom orrow .... On the same date, W ashington wrote to Secretary o f the Treasury Hamilton: H ostilities having com m enced betw een France and England, it is incum bent on the G overn­ ment o f the U nited States to prevent, as far as in it lies, all interferences o f our C itizens in them ; C ontinued 59 hundred years later, a committee of Congress described the historical circum­ stances immediately preceding President Washington’s Proclamation and the passage of the Act as follows: The enthusiasm of republicans for France, and their hostility to England, was not much less marked in America than in France. It brought public opinion to the verge of revolt against the peaceful policy of Washington. Accountable to the people for its resistance to popular clamor and the consequences of its timid submission to the demands of England, whose arrogant preten­ sions intensified the popular friendship for France, the adminis­ tration was threatened with formidable resistance, if not the overthrow of its policy. H.R. Rep. No. 100, 39th Cong., 1st Sess. 2 (1866). In addition, the United States and France had entered into two “treaties” in 1778, both of which threatened the new nation’s posture of neutrality regarding the military affairs of the European countries.4 The more serious threat was posed by the Treaty of Amity and Commerce, 8 Stat. 12,5 which made it lawful for French ships and privateers to enter United States ports with their prizes of war and unlawful for ships of other foreign nations carrying subjects or property of France as their prizes of war to enter American ports. See generally Fenwick, supra, at 16-32. In the spring of 1793, Edmund Charles Genet, French Minister to the United States, arrived in this country and, pursuant to the Treaty of Amity and Commerce, began issuing commissions to commanders of vessels willing to serve France and authorizing the outfitting of privateers from American ports. Secretary of State Jefferson protested to the French Minister that such conduct was not “warranted by the usage of nations, nor by the stipulations existing between the United States and France,” but met with continued resistance from Genet that “no article of [the Treaties] impose[d] . . . the painful injunction of abandoning us in the midst of the dangers which surround us.” Fenwick, supra, at 18-19. Finally, Jefferson informed Genet that “after mature consideration,” President Washington had concluded: 3 (. . . continued) and im m ediate precautionary m easures ought, I conceive, to be taken for that purpose, as 1 have reason to believe (from some th in g s I have heard) that m any Vessels in different parts of the U nion are designated for Privateers and are preparing accordingly. The m eans to prevent it, and fo r the U nited States to m aintain a strict neutrality betw een the powers at war, I wish to have seriously thought of, that I may a s soon as I arrive at the Seat o f the Governm ent, take such steps, tending to these ends, as shall b e deem ed proper and effectual. W ith great esteem etc. 32 Writings o f George Washington, supra, at 415, 416. 4 T hese “treaties” w ere entered into b y the colonists during the A m erican Revolution in exchange for aid from France, see 8 Stat. 6, 12, and w ere not annulled by Acts o f C ongress until 1798. 5 T he o th er treaty w as the Treaty o f A lliance, 8 Stat. 6, regarding which there existed a serious question w ithin W ashington’s C abinet as to w h eth er the U nited States w as obligated to take up arm s in France's defense. H ow ever, because France apparently never forced a resolution o f the issue, it rem ained unresolved. See Lobel, The Rise and Decline o f the Neutrality Act: Sovereignty and Congressional War Powers in United States Foreign Policy, 24 Harv. Int’l L .J. 1, 12-13 (1983). 60 [T]hat the arming and equipping [of] vessels in the ports of the United States, to cruise against nations with whom we are at peace, was incompatible with the territorial sovereignty of the United States; that it made them instrumental to the annoyance of those nations, and thereby tended to compromit their peace; and that he thought it necessary, as an evidence of good faith to them, as well as a proper reparation to the sovereignty of the country, that the armed vessels of this description should depart from the ports of the United States. * * * After fully weighing again, however, all the principles and circumstances of the case, the result appears still to be, that it is the right of every nation to prohibit acts of sovereignty from being exercised by any other within its limits, and the duty of a neutral nation to prohibit such as would injure one of the war­ ring Powers; that the granting [of] military commissions, within the United States, by any other authority than their own, is an infringement on their sovereignty, and particularly so when gran ted to their own citizens, to lead them to commit acts contrary to the duties they owe their own country[.] Fenwick, supra, at 19 (quoting 1 American State Papers, Foreign Relations 149 (emphasis added)).6 Notwithstanding the President’s Proclamation and the continued public rep­ rimands of Minister Genet, privateers continued to be outfitted in American ports for the service of France,7 with the individuals involved suffering few legal reprisals by the United States Government. Although there were several prosecutions of individual citizens charged with attacking the property and citizens of nations at peace with the United States, the prosecutions were unsuccessful, largely because there were no federal statutes defining such acts as crimes and legal opinion was divided on the question whether violations of international law could provide a basis for a common law federal offense. The 6 In reporting this incident, Fenwick states that in this passage, “Jefferson set forth in clear and simple term s the pnnciples o f neutrality as understood by the President." Fenw ick, supra, at 19. 7 H ow ever, the instructions — “deductions from the laws o f neutrality, established and received am ong nations” — issued by Secretary H am ilton on August 7, 1793 to custom s collectors in m ajor ports appears to have had some effect in decreasing the incidence o f privateering. Fenwick describes the instructions as follows: The instructions called upon the collectors to be vigilant in detecting any acts in violation of the law s o f neutrality, and to give im m ediate notice o f such attem pts to the proper authorities No asylum was to be given to vessels, nor to their prizes, o f either o f the pow ers at war w ith France, in accordance w ith the Treaty o f 1778 w ith France, nor to armed vessels which had been originally fitted out in any port o f the U nited States by either o f the parties at war. The purchase o f contraband articles, as m erchandise, was to be free to both parties. The names o f citizens o f the U nited States in the service o f either o f the parties w ere to be notified to the local state governor V essels contravening these regulations were to be refused clearance. V essels, except those in the im m ediate service o f foreign governm ents, w ere to be exam ined as to their military equipm ent upon entering and upon leaving port. Fenwick, supra, at 2 2 -2 3 . 61 most celebrated of these cases is H enfield’s Case, 11 F. Cas. 1099 (C.C.D. Pa. 1793) (No. 6360), in which Henfield was prosecuted at common law for enlisting on the French privateer, “Citizen Genet,” in violation of the treaties of the United States and the law o f nations. Although, upon the urging of Attorney General Randolph, the court recognized such actions as violations of the sovereignty of the United States in its charge to the jury, Henfield nevertheless was acquitted. See generally Lobel, The R ise and Decline o f the Neutrality Act, supra, at 13-14; Fenwick, supra, at 24. Regarding this case, Jefferson wrote in a letter to James Monroe: The Atty General gave an official opinion that the act was against law, & coincided with all our private opinions; & the lawyers of this State, New York & Maryland, who were applied to, were unanimously of the same opinion. Lately mr. Rawle, Atty of the U.S. in this district, on a conference with the District judge, Peters, supposes the law more doubtful. New acts, there­ fore, of the same kind, are left unprosecuted till the question is determined by the proper court, which will be during the present w eek.. . . I confess I think myself that the case is punishable, & that, if found otherwise, Congress ought to make it so, or we shall be made parties in every maritime war in which the pirati­ cal spirit of the banditti in our ports can engage. 6 W ritings o f Thomas Jefferson 347-48 (P. Ford ed. 1895) (emphasis added). In addition, in the summer of 1793, United States officials became aware of Minister Genet’s efforts to organize armies to invade New Orleans and the Floridas, then in the possession of Spain, an ally of Great Britain. As a result of these and other similar events, and the apparent ineffectiveness of existing legal mechanisms to restrain such activities, President Washington sought to enact into legislation the principles of neutrality set forth in his Proclamation. B. The N eutrality A ct of 1794 In his annual address to Congress in December 1793, President Washington articulated his views regarding the role of the principle of neutrality in sover­ eign states and called upon Congress to implement such principles through legislation. President Washington proclaimed: In this posture of affairs, both new and delicate, I resolved to adopt general rules, which should conform to the treaties and assert the privileges o f the United States. These were reduced into a system, which will be communicated to you. * * * It rests with the wisdom of Congress to correct, improve, or enforce this plan of procedure; and it will probably be found expedient to extend the legal code and the jurisdiction of the 62 Courts of the United States to many cases which, though dependent on principles already recognised, demand some further provisions. Where individuals shall, within the United States, array them­ selves in hostility against any of the Powers at war[;] or enter upon military expeditions or enterprises within the jurisdiction of the United States; or usurp and exercise Judicial authority within the United States; or where the penalties on violations of the law of nations may have been indistinctly marked, or are inadequate — these offences cannot receive too early and close an attention, and require prompt and decisive remedies. 4 Annals o f Congress 11 (1793). The Neutrality Act was enacted on June 5, 1794. 1 Stat. 381. Although originally enacted as a temporary measure,8 the Act was continued in force by the Act of Mar. 2, 1797, 1 Stat. 497, and finally made permanent by the Act of Apr. 24, 1800, 2 Stat. 54. Through several amendments9 and the re-enactment of its provisions in the revision and codification of Title 18 in 1909, 35 Stat. 1088, 1089, and again in 1948, 62 Stat. 683, 744, the Act today remains substantially similar to that which was first enacted in 1794. Section 1 of the Act, 18 U.S.C. § 958, provides: Any citizen of the United States who, within the jurisdiction thereof, accepts and exercises a commission to serve a foreign prince, state, colony, district, or people, in war, against any prince, state, colony, district, or people, with whom the United States is at peace, shall be fined not more than $2,000 or impris­ oned not more than three years, or both. Section 2, 18 U.S.C. § 959, provides in pertinent part:10 (a) Whoever, within the United States, enlists or enters him­ self, or hires or retains another to enlist or enter himself, or to go beyond the jurisdiction of the United States with intent to be enlisted or entered in the service of any foreign prince, state, colony, district, or people as a soldier or as a marine or seaman on board any vessel of war, letter of marque, or privateer, shall 8 That the A ct's operation was originally lim ited to a term o f tw o years testifies to “the character o f the act, and the extent to which it cam e in conflict with the opinions o f the people, as well as the extraordinary influences under which it was enacted.’’ H.R. Rep. No. 100, supra, at 2. 9 See, e.g.. Act o f Mar. 3, 1817, 3 Stat. 370; Act o f Apr. 20, 1818, 3 Stat. 447, Act o f Mar. 10, 1838, 5 Stat. 212. Parts o f the Act were also am ended in 1917, in the “Act to punish acts o f interference w ith the foreign relations, the neutrality, and the foreign com m erce o f the U nited States, to punish espionage, and better to enforce the crim inal laws o f the U nited States,” com m only referred to as the “Espionage A ct,” 40 Stat. 217. 10 Subsection (b) o f § 2 generally exem pts from subsection (a)’s coverage “citizens or subjects of any country engaged in w ar with a country with which the U nited States is at w ar;” subsection (c) generally exem pts from the A ct’s coverage citizens o f the foreign nations who are “transiently within the United States . . . [who] enlist on board any vessel o f war . . . which at the tim e o f its arrival within the U nited States was fitted and equipped as such.” 63 be fined not more than $1,000 or imprisoned not more than three years, or both. Section 3, 18 U.S.C. § 962, provides in pertinent part: Whoever, within the United States, furnishes, fits out, arms, or attempts to furnish, fit out or arm, any vessel, with intent that such vessel shall be employed in the service of any foreign prince, or state, or of any colony, district, or people, to cruise, or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace; or Whoever issues or delivers a commission within the United States for any vessel, to the intent that she may be so employed — Shall be fined not more than $10,000 or imprisoned not more than three years, or both. Section 4, 18 U.S.C. § 961, provides in pertinent part: Whoever, within the United States, increases or augments the force of any ship o f war . . . which, at the time of her arrival within the United States, was a ship of war . . . in the service of any foreign prince or state, or of any coiony, district, or people, or belonging to the subjects or citizens of any such prince or state, colony, district, or people, the same being at war with any foreign prince or state, or of any colony, district, or people, with whom the United States is at peace, by adding to the number of the guns of such v essel. . . or by adding thereto any equipment solely applicable to war, shall be fined not more than $1,000 or imprisoned not more than one year, or both. Section 5, 18 U.S.C. § 960 provides: Whoever, within the United States, knowingly begins or sets on foot or provides or prepares a means for or furnishes the money for, or takes part in, any military or naval expedition or enterprise to be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace, shall be fined not more than $3,000 or imprisoned not more than three years, or both. Although the debates in Congress regarding these provisions focused largely on the immediate problems posed by the 1778 “treaties” with France and how they would be affected by the anti-privateering and confiscation of goods provisions of the Act,11 the Act’s legislative history nevertheless reveals other 11 Section 3 o f the Act provided fo r the confiscation o f goods on arm ed vessels, outfitted within the U nited States, that com m itted hostile acts ag ain st territories w ith which the U nited States was at peace. 64 key issues that were addressed by the Act’s passage. Several commentators have suggested, and the speeches of President Washington, Secretary Jefferson, and various Senators and Representatives support the view, that the United States, in the early stages of its development as a republic, embraced the general principle of neutrality as a means, in view of its military weakness and geographic isolation, of advancing its commercial interests by avoiding in­ volvement in European wars and protecting its independence and sovereignty from violation by foreign states, as well as of consolidating its federal powers and strengthening the sovereignty of the federal government over its individual citizens. See generally Fenwick, supra; Lobel, The Rise and Decline o f the Neutrality Act, supra, and sources cited therein. See also United States v. O'Sullivan, 27 F. Cas. 367,373-75 (S.D.N.Y. 1851) (No. 15974) (providing an account of the Act’s passage). In 1866, the House Committee on Foreign Affairs, which was engaged in an extensive review of the Act’s history, described the state of the new nation after 1783 and the historical circumstances that compelled the Act’s passage: The independence of the American colonies was acknowl­ edged by Great Britain in 1783. The participation of the colonies in the Indian and French wars, and the severe and long-contin­ ued struggle of the Revolution made it necessary that the new government under the Constitution should husband its resources, and, if possible, avoid all complications with foreign nations. The foreign policy of the administration of Washington — as wise and necessary as it was successful — was based upon this idea. It is now conceded that the safety of the republic imperi­ ously demanded this policy. H.R. Rep. No. 100, supra, at 1. In his Farewell Address to the Nation on September 19, 1796, President Washington reiterated these themes: The Great rule of conduct for us, in regard to foreign Nations is in extending our commercial relations to have with them as little political connection as possible. So far as we have already formed engagements let them be fulfilled, with perfect good faith. Here let us stop. Europe has a set of primary interests, which to us have none, or a very remote relation. Hence she must be engaged in fre­ quent controversies, the causes of which are essentially foreign to our concerns. Hence therefore it must be unwise in us to implicate ourselves, by artificial ties, in the ordinary vicissi­ tudes of her politics, or the ordinary combinations and collisions of her friendships, or enmities; Our detached and distant situation invites and enables us to pursue a different course. If we remain one People, under an 65 efficient government, the period is not far off, when we may defy material injury from external annoyance; when we may take such an attitude as will cause the neutrality we may at any time resolve upon to be scrupulously respected; when belligerent nations, under the impossibility of making acquisitions upon us, will not lighdy hazard giving us provocation; when we may choose peace or war, as our interest guided by our justice shall Counsel. 35 W ritings o f G eorge Washington, supra, at 233-34. Critical to the effort to remain detached from foreign entanglements was establishing to foreign powers and to the citizens of the United States that only the G overnm ent was authorized to articulate United States foreign policy. Unauthorized acts by private individuals in this regard were not to be recog­ nized by foreign nations, and, indeed, were to be punished by the United States, “because no citizen should be free to commit his country to war.” 6 Writings o f Thomas Jefferson, supra, at 347. In reviewing the history and purposes of the Act, the United States District Court for the Southern District of New York, in a landmark decision in 1851, analogized the neutrality obligations that the drafters sought to impose on individuals through the enactment of civil penal laws to those imposed by the law of nations on sovereign governments: As the representative of the people, — their agent, delegated by the people of the United States, — the government adopted an administrative and legislative policy embracing both its di­ rect relationship to foreign states, and the coordinate obligations of the citizens individually to uphold and effectuate that rela­ tionship. What the government might not do in its public capac­ ity, without an infraction of the law of nations and subjecting itself to reprisals and war, it claimed the people should be prohibited doing individually___It is most manifest, that, at the earliest day the subject was acted on, the United States govern­ m ent intended to make the person al duties o f citizens co-equal with those o f the nation, in respect to acts of hostility against other states . . . [and] to compel the citizens to conform in all respects to the principles o f the law o f nations, recognized and observed on the part of the government, in regard to friendly powers. U nited States v. O ’Sullivan, 27 F. Cas. at 374, 375 (emphasis added). See also Fenwick, supra, at 1-14. During the debate on the Neutrality Act, Representative Ames spoke of the weakness of the United States’ general authority and of the threat of “be[ing] driven into a war by the licentious behavior of some individuals.” 4 Annals o f Congress 743 (1794). Representative Wadsworth expressed a similar view: If the Executive cannot hinder these people from going to sea in this way, we must be forced into hostilities immediately. We send an Ambassador to England to secure peace; and we follow 66 up this application by sending out privateers. Will any nation, in such a case, believe that our desire of peace is sincere? Is the seizing of their ships a sign of it? Id. at 744. Representative Murray reiterated the importance of securing govern­ mental control over the power of individuals to affect foreign policy: [W]ere people only meeting to form the very first elements of a civil compact, they would have a right to say to each member of their society, that he should not enlist in any foreign service, to invade a nation perhaps friendly to them, without their consent. To countenance recruiting for foreign service, was admitting into the heart of the country an engagement against the sover­ eignty of the country. Id. at 746 (emphasis added). This view was reiterated again by the court in the O ’Sullivan case as an underlying purpose of the Act: [T]his government . . . possesses the unquestionable power to prohibit.. . citizens, individually, or in association with others, from entering into engagements or measures within the Ameri­ can territory, or upon American vessels, in hostility to other nations, and which may compromit [sic] our peace with them. It would be m ost deplorable if no such controlling p o w er existed in this government, and if men might be allowed, under the influence o f evil, o r even good, motives, to set on fo o t warlike enterprises from our shores, against nations at peace with us, and thus, fo r private objects, sordid or criminal in themselves — or under the impulse of fanaticism or wild delusions — bring upon this country, at their own discretion, the calamities o f war. The will of the nation is expressed in this respect, by the statute of [1794], United States v. O ’Sullivan, 27 F. Cas. at 383 (emphasis added). Thus, the Neutrality Act, by outlawing private warfare, would ensure that the nation’s foreign policy was made by the President, with appropriate participation by Congress, working through the political process in fulfillment of their constitu­ tional roles, and not by the unilateral and unrestricted acts of private individuals.12 12 In arguing that the Act was intended to proscribe actions by the G overnm ent as w ell as those o f individuals acting in their private capacities, some com m entators have pointed to the English predecessor to § 2 o f the Act, w hich excepted from the English a c t’s prohibitions those enlistm ents that w ere authorized by the Queen, and the failure o f the U nited States Congress to make explicit sim ilar exceptions in its Act. See, e.g., Lobel, The Rise and Decline o f the Neutrality Act, supra, at 31-33. H ow ever, it was clear to early scholars that the d rafters’ use o f the term “any person” in § 2 was not intended to bar enlistm ents duly authorized by the Governm ent. Sections 1 and 2 o f the A ct were designed to protect the nation’s sovereignty over its territory and its independence in w orld affairs by prohibiting belligerents from recruiting troops w ithin its borders “w ithout the consent o f the sovereign,’’ 7 Op. A tt'y Gen. 367, 368, 381 (18SS), and by prohibiting its citizens from engaging in private acts o f warfare, i.e., accepting and exercising com m issions in the service of nations against nations w ith which the U nited Slates was at peace, which could be interpreted erroneously by foreign C ontinued 67 In calling for amendments to the Act in 1803 to strengthen its provisions to respond more effectively to the involvement of American citizens in the South American colonial wars,13 President Jefferson re-emphasized the Act’s pur­ pose to prevent individual citizens from embarking on private expeditions in contravention of the Government’s foreign policy goals: [L]et it be our endeavor, as it is our interest and desire, to cultivate the friendship of the belligerent nations by every act of justice and of innocent kindness; to receive their armed vessels with hospitality from the distresses of the sea, but to administer the means of annoyance to none;. . . to restrain our citizens from em barking individually in a w ar in which their country takes no p a rt; to punish severely those persons, citizen or alien, who shall usurp the cover of our flag for vessels not entitled to it, infecting thereby with suspicion those o f real Americans and committing us into controversies for the redress o f wrongs not our own\_.\ 12 (. . . continued) pow ers as acts o f the U nited States G overnm ent. See generally W arren, A ssistant A ttorney G eneral, ‘‘Memo­ randum o f L aw on the C onstruction o f S ectio n 10 o f the Federal Code [currently 18 U.S.C. § 959]” (1915). In his m em orandum . A ssistant Attorney G en eral W arren traced the developm ent o f § 95 9 ’s predecessors from th eir origins in the B ritish Act of 13 A nne, ch. 10 (1713), which prohibited the “listing of Her M ajesties subjects to serve as soldiers without H e r M ajesties license,” to 1915. In discussing the evolution o f this prohibition in the U nited States, W arren noted that although the A m erican C ongress had extended the Act beyond th e p rohibitions contained in the English act to p rohibit “ any person" w ithin the United States from enlisting in foreign service, and thus m ade “unlaw ful the recruiting o r enlisting o f all foreign citizens within this c o u n try ,” C ongress implicitly retained the A ct’s prohibition against acts to which the Governm ent had not consented. Id. at 3 -1 1 . See also 4 Annals o f Congress 746 (1794); 7 Op. A tt’y Gen. at 381 (“The main consid eratio n is the sovereign right o f th e U nited States to exercise com plete and exclusive jurisdiction w ithin their ow n territory; to remain stric tly neutral, if they please, in the face o f the w arring nations of E u ro p e . . . . A ll w hich it concerns a foreign governm ent to know is w hether we, as a government, permit such enlistm en ts.” ) (em phasis added) 13 The follow ing account o f the im pact on the A m erican public o f the revolutions by Spanish colonists in the W estern H em isphere d u n n g the first tw o decades o f the 19th century provides valuable insight into the tensions betw een the collective individual wills o f the American people and the federal governm ent as a sovereign entity, and the necessity for vigorous enforcem ent o f U nited States foreign policy o f neutrality against those individuals w ho would v io late it. The independence o f the Spanish republics w as hailed by the people of this country as the most auspicious event o f the age. No governm ent in Europe except that of Spain had resisted the freedom o f the Spanish provinces b y force. B ut all the nations o f Europe in alliance with Spain m aintained h e r right to the governm ent o f the colonies. G reat B ritain had been invited by Spain, in conjunction w ith the European alliance, to m ediate betw een her and the colonies, upon the basis o f th eir continued submission to her authority, with certain am eliorations as to commerce and the appointm ent o f officers. T h e United States, w hose co- operation was solicited by Great B ritain, declined to en ter into any plan o f pacification, except upon the basis o f their indepen­ dence. The recognition o f their independence w as deferred fo r several years in deference to the authority o f the H oly Alliance. S p a m declared that such recognition would be regarded by her as an act o f h ostility. T heir independence was recognized in 1822, after a contest o f tw elve years. The sym pathy o f th e American p eople for the Spanish patriots w as sincere and universal, and th eir ho stility to the government a n d institutions o f Spain was equally strong. The proxim ity of the Spanish provinces to our ow n country, and their inability on account o f their want o f vesselsof-w ar, to cope w ith Spain upon th e sea, rendered it difficult to prevent our citizens from giving them aid in their struggle for lib erty . It w as still m ore difficult to allay the suspicions o f the European governm ents o f our com plication w ith the revolutionists. H.R. R ep. No. 100, supra, at 3. 68 1 M essages and Papers o f the Presidents, supra, at 361 (emphasis added). In reviewing the amendments proposed, and the proclamations issued, by Presi­ dents Jefferson and Madison during the colonial rebellions against Spain, the House Committee on Foreign Affairs in 1866 reported: It is impossible to suppose that provisions so repressive upon American commerce, so hostile to the cause of liberty in the colonies, and so strongly in favor of a government whose prin­ ciples were so repugnant to the people as those of Spain, were voluntarily adopted. They had their origin in the interests of European governments hostile to the cause of the colonies. But it was not this consideration alone that led to their permanent enactment. The established policy of the government was that of peace with all nations. To maintain this policy it waived, both at home and abroad, interests to which, under other circumstances, it would have resolutely adhered. The declarations of Washing­ ton upon this subject are too familiar to require repetition. They were accepted by a ll his successors. H.R. Rep. No. 100, supra, at 4 (emphasis added). See generally Fenwick, supra, at 31—41. This theme has been sounded again and again by Presidents throughout the history of our Nation. President Van Buren, in 1838, admonished American citizens against arming themselves in support of the Canadian revolt against Great Britain, and warned that “any persons who shall compromit [sic] the neutrality of this Government by interfering in an unlawful manner with the affairs of the neighboring British Provinces will render themselves liable to arrest and punishment under the laws of the United States, which will be rigidly enforced.” 3 M essages and Papers o f the President, supra, at 481. Likewise, Presidents Tyler and Fillmore issued proclamations in 1849 and 1851, respectively, warning against hostile expeditions into Cuba and Mexico; in 1854 and again in 1858 Presidents Pierce and Buchanan warned against individual involvement in support of belligerent factions in Nicaragua; in 1870 President Grant warned against American participation in the Cuban revolution against Spain; and in 1912 President Taft issued a proclamation warning Americans against assisting Mexican insurgents. See generally Fenwick, supra, at 41-48. The drafters of the Neutrality Act did not define the phrase “at peace” as it is used in the Act. Indeed, it does not appear that the issue was the subject of debate. However, given the underlying goals of the statute, it is reasonable to conclude that the phrase “at peace” describes the state of affairs in which there is an absence of a congressionally declared war. In a letter to Gouvemeur Morris, the United States Minister to France, in 1793, Jefferson wrote: If one citizen has a right to go to war of his own authority, every citizen has the same. If every citizen has that right, then the nation (which is composed of all it’s [sic] citizens) has a right to 69 go to war, by the authority of it’s individual citizens. But this is not true either on the general principles of society, or by our Constitution, which g iv e s that p o w er to Congress alone, & not to the citizens individually. 6 W ritings o f Thomas Jefferson, supra, at 371, 381 (emphasis added). Yet, during President Jefferson’s administration, as well as those of Presidents following him during the early years of the 19th century, Presidents repeatedly authorized military expeditions into territories against which Congress had not declared war, as well as the arming of vessels to be used against nations against which Congress had not declared war, with no indication that those Presidents, or the Congresses that were sitting at the time, understood such missions to violate the Neutrality Act. For example, in 1801, President Jefferson dispatched naval forces to Tripoli, after the Pasha of Tripoli increased his demands for tribute to the Barbary pirates and declared war upon the United States. The United States naval action in the Mediterranean extended over a five-year period, during which Lieuten­ ant Decatur destroyed the frigate “Philadelphia,” which had been captured and converted by the Tripolitans. In 1806, after issuing a proclamation declaring that information had been received of preparations for an expedition against the dominion of Spain and warning all persons against taking any part in it,14 President Jefferson ordered Captain Zebulon Pike and his platoon to invade Spanish Territory at the headwaters of the Rio Grande on a secret mission. In 1810, President Madison ordered the Governor of Louisiana to occupy dis­ puted territory in West Florida, east of the Mississippi, with troops;15 in 1813 14 See Fenw ick, supra, at 33. 15 A ccording to A braham D. Sofaer’s account o f the expeditions ordered by President M adison into the F loridas and the northern coast of South A m erica in War, Foreign Affairs and Constitutional Power: The Origins 296, 300, 303 (1976): M adison w rote Jefferson that the crisis in W est Florida presented “senous questions, as to the authority o f the Executive, and th e adequacy o f the existing law s o f the U.S. for territorial adm inistration.*’ He expressed the fear that acting before C ongress had convened would subject an executive o rd er “to the charge o f being prem ature and disrespectful, if not o f being illegal.” N o response from Jefferson has b een found; but, w hatever Jefferson’s view, M adison decided to proceed unilaterally and vigorously . . . [without congressional approval]. A fter P resident M adison presented C ongress w ith the fa it accompli, in the ensuing debate, Sofaer w rites that Senator C lay persuaded his colleagues w ith the following rem arks: The p resident has not, therefore, vio lated the C onstitution, and usurped the w ar-m aking power, but he w ould have violated that provision which requires him to see that the law s are faithfully executed, if he had longer forborne to act . . . . H ad the President failed to exercise the discretionary pow er placed in him , . . . he would have been crim inally inattentive to the dearest interests o f this country. Sofaer then concludes: O ne can fairly state th at Madison acted w ith far m ore independence and vigor in W est Florida than h is e arlier conception of p residential pow er w ould have allow ed. He plotted in secret, used agents and troops, threatened force, and eventually proclaim ed and effectuated the occupation o f an area ruled by Spain. He did these things w ithout calling back C ongress, and kept his proclam ation secret until it was safely im plem ented. [However,] his actions . . . were largely consistent with the view of presidential power advocated by Hamilton and most Federalists . . . . Congress had . . . provided troops, and most early Federalists would have agreed that the President had discretion to use the troops in executing any o f his constitutional responsibilities. (E m phasis added.) 70 President Madison ordered United States Marines into Spanish Territory, and in 1816-17, on two occasions, he ordered United States forces into Spanish Florida, during the “Seminole Wars.” In 1817, President Monroe sent United States forces to Amelia Island, in the Spanish Territory, to expel smugglers and privateers. Notwithstanding the many Presidential Proclamations against American involvement in the colonial rebellions against Spain during the early 19th century, there are documented no less than seven invasions by the United States Armed Forces, ordered by Presidents Madison and Monroe, without a declaration of war or other prior congressional authorization, into Spanish Territory. In President Jackson’s administration there are seven such docu­ mented expeditions into Haiti, the Falkland Islands, Argentina, Sumatra, and Peru, all nations with which the United States was at peace. Likewise, in 1837 President Van Buren ordered the Marines to capture a Mexican brig of war, and in 1839, to land in Sumatra in retaliation for attacks on American ships. In addition, President Pierce, after warning American citizens against involving themselves in civil infractions in Nicaragua, sent United States naval forces to Grey town, Nicaragua in 1853 and again in 1854 to quell civil disturbances there and to protect the lives of American citizens stationed there. Between 1840 and 1900 there were nearly one-hundred documented, and, undoubtedly, many more undocumented, instances of invasions by American forces, at the behest of the President, of nations with which the United States was at peace. See generally Emerson, War Pow ers Legislation, 74 W. Va. L. Rev. 53 app. (1971). This legislative history, when considered together with the historical circum­ stances surrounding the passage of the Act, provides overwhelming support for the view that the Act was not intended to apply to military activities pursued, or otherwise sponsored, by the Government.16 This conclusion is strengthened even more by the fact that Jefferson was a member of the President’s Cabinet and Madison was a member of the Congress during the period in which the 16 Although the question may be raised whether the drafters in fact distinguished betw een Presidentially authorized and congressionaliy approved actions in excepting from the A ct’s prohibitions “governm entauthorized” acts, the m any historical exam ples noted in this mem orandum , as well as a recognition o f the necessity o f ensuring the President’s ability to respond rapidly to changing world events, compel us to conclude that, short o f acts constituting a declaration o f w ar, Presidential authorization is sufficient under the Act. See also S ofaer, supra, at 359. Sofaer notes that many M em bers o f C ongress cam e to President M onroe’s defense during congressional debate regarding his actions in the Floridas, arguing that the President was not lim ited to fighting only wars formally declared war by C ongress, but could authorize m ilitary actions short o f war. R epresentative A lexander Smyth o f V irginia rem arked on the floor of the House: It by no m eans follow s, as some seem to suppose, that because the President cannot declare war, that he can do nothing for the protection o f the nation, and the assertion o f its rights The pow er to declare w ar is a power to announce regular war, or w ar in form, against another Power. But it never was intended, by reserving this pow er to Congress, to take from the President the pow er to do any act necessary to preserve the nation’s rights, and which does not put the nation into a state o f war w ith another Power. If C ongress, in addition to the pow er o f d eclanng war, assum e to them selves the power o f directing every movem ent o f the public force that m ay touch a neutral; o r that may be made for preserving the national rights; or executing the law s and treaties; they will assum e powers given to the President by the C onstitution. 33 Annals o f Congress 678 (1819). 71 Proclamation of 1793, which gave rise to the Neutrality Act, was issued and the Neutrality Act was debated and passed. Both construed the Act to apply only to unauthorized acts of private individuals and not to acts properly carried out pursuant to Presidential authority, as evidenced by their numerous military ventures, some of which are noted above, into nations with which the United States was officially at peace. Such contemporaneous interpretations of laws by “the founders of our Government and framers of our Constitution when actively participating in public affairs” has been held by the Supreme Court to be near conclusive proof of the proper construction to be accorded provisions, particularly when such interpretations are long acquiesced in. See, e.g., J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 411-12 (1926). See also U nited States v. Curtiss-Wright Export Corp., 299 U.S. 304, 322-29 (1936); The P ocket Veto Cases, 279 U.S. 655, 688-90 (1929); M yers v. United States, 272 U.S. 52, 175 (1926); M artin v. H unter’s Lessee, 14 U.S. (1 Wheat.) 304, 351-52 (1816); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803).17 Moreover, given the Act’s purpose to enhance the President’s ability to implement the foreign policy goals that have been developed by him, with appropriate participation by Congress, it would indeed be anomalous to inter­ pret the Act to prohibit Government officials, acting properly within the course and scope of their authority, from carrying out the orders of the President, “the sole organ of the nation in its external relations and its sole representative with foreign nations” in pursuit of those goals. See United States v. Curtiss-Wright E xport Corp., 299 U.S. at 319. Although the fact that the Act was not intended to apply to government-sponsored activity was not made explicit in the Act’s text, our view is supported by the general rule of statutory construction, which holds that unless affirmative reasons indicate otherwise, “statutes which in general terms divest pre-existing rights or privileges will not be applied to the sovereign without express words to that effect.” U nited States v. United Mine Workers, 330 U.S. 258, 272 (1947). See also Hancock v. Train, 426 U.S. 167 (1961). For these reasons, we believe that the purposes of the Act, as expressed by President Washington, his Cabinet, and the Members of Congress, together with the undeniable history of government-sponsored military expeditions into countries with which the United States has been at peace, and subsequent legislation, compels the conclusion that the Act was not intended to proscribe such official activity. II. Post-Enactment History: Applications of the Act The first prosecutions for violating the various provisions of the Neutrality Act were all brought against private individuals, for knowingly committing acts of hostility, unauthorized by the Government, against nations with which the United States was at peace. See, e.g., United States v. Peters, 3 U.S. (3 17 A lthough these cases refer to the construction o f constitutional provisions, the analytical principle announced by the C ourt may also be used to gain insight into the proper construction of statutes. 72 Dali.) 121 (1795); The Betty Carthcart, 17 F. Cas. 651 (D.S.C. 1795) (No. 9742); The Nancy, 4 F. Cas. 171 (D.S.C. 1795) (No. 1898). The legal issue in these early cases focused on what constituted the “arming” of a vessel, the distinction between “commercial” and “hostile” intent, and the authority of the United States Government to define the political bodies in whose service, and against which, the prohibited acts had been committed, and not on whether the Act prohibited the Government from engaging in such activity. See, e.g., Wiborg v. United States, 163 U.S. 632 (1896); United States v. Quincy, 31 U.S. (6 Pet.) 445 (1832); United States v. Guinet, 2 U.S. (2 Dali.) 321 (1795); United States v. Skinner, 27 F. Cas. 1123 (C.C.D.N.Y. 1818) (No. 16309). See also 21 Op. Att’y Gen. 267 (1895); 13 Op. Att’y Gen. 177 (1869); 3 Op. Att’y Gen. 739 (1841), In none of these early cases or opinions was there any discussion of the applicability of these provisions to expeditions led or authorized by govern­ ment officials, yet, as noted above, there has been documented during this period numerous instances of military ventures by United States forces into countries with which the United States was “at peace,” and, no doubt, many more instances of providing assistance to nations engaged in belligerent acts against nations with whom the United States is “at peace.” See generally Emerson, War Pow ers Legislation, supra. Although some commentators have argued that for purposes of the Neutrality Act, a distinction should be made between the use of regular United States Armed Forces, which would not be covered, and the use of other government-sponsored “paramilitary” groups, which would be covered, see Lobel, The Rise and Decline o f the Neutrality Act, supra, no historical evidence has been cited in support of this distinction. The fact that during the years immediately following the passage of the Act, expeditions into the Central and South American territories were launched by private parties, groups of individuals acting pursuant to Presidential authority, and United States troops, and that only the individuals involved in the first category of expeditions were prosecuted, supports the view that the Act was intended to apply no more to “paramilitary” troops then to the regular “armed forces” troops, when acting under orders of the President. To be sure, courts construing the Act during the 19th century understood its provisions to prohibit “individuals [from] being at war whilst their government is at peace”: The rule is founded on the im propriety and danger o f allowing individuals to make w ar on their own authority, or, by mingling themselves in the belligerent operations of other nations, to run the hazard of counteracting the policy or embroiling the rela­ tions of their own government___By these laws it is prescribed to the citizens of the United States, what is understood to be their duty as neutrals by the law of nations, and their duty also which they owed to the interest and honor of their own country. United States v. O ’Sullivan, 27 F. Cas. at 376 (emphasis added). See also United States v. Three Friends, 166 U.S. 1, 52, 53 (1897) (“[N]o nation can 73 permit unauthorized acts of war within its territory in infraction of its sover­ eignty . . . . [T]he act [was passed]. . . in order to provide a comprehensive code in prevention of acts by individuals within our jurisdiction inconsistent with our own authority.”) (emphasis added). Moreover, courts in the nineteenth century clearly recognized the President’s constitutional preeminence in the area of foreign policy, and the discretion vested in him and his authorized agents by the Constitution regarding such affairs. Although we are aware of no court decisions from the nineteenth century ruling on challenges, brought under the Neutrality Act, to military actions taken by the President or his agents,18 in 1860, the circuit court for the Southern District of New York, ruled that it was entirely lawful for the President to order the shelling of a town in Nicaragua in 1854 that had refused to redress damages incurred by American officials during a riot there.19 In rejecting a claim for damages against the naval commander who had carried out the President’s orders, the court held: As the executive head of the nation, the president is made the only legitimate organ of the general government, to open and carry on correspondence or negotiations with foreign nations, in matters concerning the interests of the country or of its citizens. It is to him, also, that the citizens abroad must look for protec­ tion of person and of property, and for the faithful execution of the laws existing and intended for their protection. For this purpose, the whole executive power of the country is placed in his hands, under the constitution, and the laws passed in pursuance thereof; and different departments of government have been organized, through which this power may be most conveniently executed, whether by negotiation or by force a department of state and a department of the navy. * * * I have said, that the interposition of the president abroad, for the protection of the citizen, must necessarily rest in his discre­ tion; and it is quite clear that, in all cases where a public act or order rests in executive discretion, neither he nor his authorized agent is personally civilly responsible for the consequences. As was observed by Chief Justice Marshall, in M arbury v. M adi­ son, 1 Cranch [5 U.S. 137], 165 [(1803)]: “By the constitution of 18 But see Dellums v. Smith, 577 F. Supp. 1449 (N.D. Cal, 1984), discussed below. 19 The facts, as alleged, were: th at the com m unity at Greytown [N icaragua] had forcibly usurped the possession o f the place, and erected an independent governm ent, not recognized by the U nited States, and had perpetrated acts o f violence against the citizens o f the U nited States and their property, and had, on demand fo r redress refused it, and that th e defendant, under public orders from the president and secretary, as a com m ander in the nav y , and then in com m and o f the C yane, did cause the place to be bom barded and set on fire, as he law fully might fo r the cause aforesaid. Durand v. Hollins, 8 F. C as. I l l , 111 (1860). 74 the United States, the president is invested with certain impor­ tant political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority, and in conformity with his orders. In such cases, their acts are his acts, and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion.” Durand, 8 F. Cas. at 112. This incident, involving the use of American military power in Nicaragua, is one of seven documented instances of the use of military force by the United States in Nicaragua between 1853 and 1912, none of which was formally authorized by Congress. See Emerson, War Pow ers Legislation, supra. We are not aware of any instance in which there were demands or suggestions that the President’s authorizing of such activities be prosecuted under the Neutrality Act. Throughout the nineteenth and early twentieth centuries, Presidents sent American forces on innumerable military expeditions without prior congres­ sional approval. For example, in 1853, Commodore Perry, pursuant to orders of President Pierce, led an expedition consisting of four men-of-war to Japan to negotiate a commercial treaty; and in 1854 he returned to Japan with ten armed ships to conclude the negotiations. In 1900, during the Boxer Rebellion, President McKinley ordered 5,000 troops to China to join the international military force protecting foreign legations; and in 1918, President Wilson committed 8,000 American troops to the Allied effort in Russia to counter the Bolshevik Revolution. See generally Emerson, War Powers Legislation, supra. In none of these instances were allegations of violations of the Neutrality Act raised by either Congress or the American public. Prior to the court’s recent ruling in Dellum s v. Smith, 577 F. Supp. 1449 (N.D. Cal. 1984), discussed in Part III below, the only instance in the Act’s history of nearly two centuries in which a court had considered the question of its applicability — in particular, the applicability of § 5 (18 U.S.C. § 960) — to expeditions “authorized” by the Government involved a claim by private individuals, strenuously denied by the Government, of Government complicity in their mission. See United States v. Smith, 27 F. Cas. 1192 (C.C.D.N.Y. 1806) (No. 16342). In that case, Smith defended against the charge that he had set out on an expedition “against the dominions of Spain in South America,” in violation of § 5, id. at 1233, by arguing that the expedition “was begun, prepared, and set on foot with the knowledge and approbation of the President of the United States, and . . . of the Secretary of State of the United States.” Id. at 1196. Although Administration officials disavowed any knowledge of Smith’s expedition, the court charged the jury to determine Smith’s guilt or innocence without regard to the President’s alleged approval or disapproval of the ven­ 75 ture, because the President “cannot control the statute, nor dispense with its execution, and still less can he authorize a person to do what the law forbids.” Id. at 1230. The Court stated: If, then, the president knew and approved of the military expedi­ tion set forth in the indictment against a prince with whom we are at peace, it would not justify the defendant in a court of law, nor discharge him from the binding force of the act of congress; because the president does not possess a dispensing power. Does he possess the power of making war? That power is exclusively vested in congress. Id. As Smith was on a private mission, completely unrelated to the conduct of the official foreign policy of the United States, the court’s language is dicta. Nevertheless, the Smith decision constitutes a single piece of data, in a volumi­ nous body, concerning the Neutrality Act which appears to be inconsistent with our construction of the Act and our reading of the Act’s legislative history. We believe that to the extent the court’s language implies that the Act was intended to criminalize military endeavors directed by the President which are consis­ tent with the Government’s overall foreign policy agenda as developed by the President with appropriate participation by Congress, this decision is incor­ rectly decided. Moreover, its precedential value is completely undermined by contrary logic, legislative history, statutory construction principles, and his­ torical practice. As discussed at considerable length above, it seems clear that the Act was intended to punish only unauthorized expeditions, undertaken by individuals acting in a private capacity, which would contravene or undermine the official foreign policy of the United States.20 The foregoing constitutes a survey of contemporaneous and other21 histori­ cal constructions of the language of the Act’s provisions. Although this history, 20 T his conclusion is particularly reinforced in the Smith case by reference to the fact that the prosecution w as b rought by P resident Jefferson, “w ith the concurrence o f Mr. M adison, secretary o f state,” for com m it­ ting private acts, inconsistent with United States foreign policy, in violation o f the sovereignty o f the federal governm ent. See United States v. O'Sullivan, 27 F. Cas. at 375 (discussing Smith). Clearly, as evidenced by the foregoing history o f numerous m ilitary ventures launched by both Jefferson and M adison (after the latter becam e P resident in 1809), the prosecution was brought precisely because Sm ith’s acts were unauthorized R egarding P resident Jefferso n ’s having in stituted the Smith prosecution, the O ’Sullivan court concluded, “so it seem s the policy and intent of this law has alw ays been understood by the executive under every adm in istratio n .” Id. at 376. 21 In 1917, the A ct w as supplemented b y the addition o f several related neutrality provisions passed in an A ct com m only referred to as the “Espionage A ct,” 40 Stat. 217. O ne o f the neutrality provisions enacted as a part o f the Espionage Act is presently codified at 18 U.S.C. § 956, w hich prohibits “tw o o r more persons w ithin the ju risd ictio n o f the U nited States [froml conspir[ing] to injure o r destroy specific property situ ated w ithin a foreign country and belonging to a foreign governm ent w ith w hich the U nited States is at p e a c e .” O nly one prosecution appears to have been brought under this provision. United States v. Elliott, 266 F. Supp. 318 (S.D .N .Y . 1967), and in that case, the defendant raised selective prosecution and equal protection claim s. In dism issing those claim s, the court stated: He has not offered evidence even touching upon an exam ple of any other person who conspired to destroy property in any nation w ith which the U nited States w as clearly at peace and w ho was Continued 76 with few exceptions, supports the view that the Act was not intended to proscribe military expeditions undertaken by the Government, the strongest support for this position may be in the more recent history of extensive covert “paramilitary” activity, authorized by the President and carried out by his agents, with varying degrees of disclosure to Congress, in nations against which Congress has not declared war. We turn now to that history. III. Contemporary History of the Act No recent President has refused to commit United States regular armed forces or “paramilitary” operatives, depending upon the need, to actual hostili­ ties because of a lack of congressional declarations or approval when, in the exercise of his “inherent” powers over the conduct of foreign affairs,22 and in the fulfillment of his constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const, art. II, § 3, and of his role as “Commander-inChief of the Army and Navy of the United States,” id. § 2, it is his judgment that such action is necessary to preserve the national security of the United States. Among the more well-known examples of such actions are those of President Truman in Korea, President Eisenhower in Lebanon, President Kennedy in Cuba and Southeast Asia, Presidents Johnson and Nixon in South­ 21 ( . . . continued) not prosecuted. Instead, he has raised situations such as North Vietnam or the Bay o f Pigs where government complicity would effectively bar any prosecution. Id. at 324 (em phasis added). The other set o f provisions enacted w ith the espionage laws authorized the President, “ [d]unng a w ar in which the U nited States is a neutral nation” to enforce the United States* posture o f neutrality by requiring “owner[s], m aster!s], or person[s] in com m and” o f any vessels within the jurisdiction o f U nited States ports to “furnish p ro o f satisfactory to the President, or to the person duly authorized by him, that the vessel w ill not be em ployed . . . to com m it hostilities upon the subjects . o f any foreign prince or state . . . with which the U nited States is at peace . . . and that the said vessel will not be sold o r delivered to any belligerent nation, . . . within the jurisdiction o f the United States, or, having left that jurisdiction, upon the high seas.” 40 Stat. at 221-22; 18 U.S.C. § 963. See also 18 U.S.C. §§ 964-967. Section 964 provides in part that [d]uring a w ar in which the United States is a neutral nation, it shall be unlawful to send out o f the U nited States any vessel b u ilt,. . . as a vessel o f war . . . with any intent or under any agreem ent or contract that such vessel will be delivered to a belligerent n a tio n ,. . . or w ith reasonable cause to believe that the said vessel will be employed in the service o f any such belligerent nation after its departure from the jurisdiction o f the United States. Section 964 codifies the substantive rule o f international law forbidding the delivery of arm ed vessels to belligerent pow ers by neutral nations that § 963 authorized the President to enforce. See H.R. Rep. No. 30, 65th C o n g , 1st Sess. 9 (1917). In 1940, A ttorney General Jackson construed this provision to preclude the President from dispatching to the B ntish G overnm ent, in exchange for certain services pursuant to an Executive A greem ent, “m osquito boats” which were at the tim e under construction for the U nited States Navy, because they w ould have been “built, arm ed, o r equipped w ith the intent, o r with reasonable cause to believe, that they would enter the service of a belligerent after being sent out o f the jurisdiction o f the U nited States.” 39 Op. A tt’y Gen. 484, 496 (1940). A lthough som e com m entators have suggested that Attorney General Jackson’s opinion supports the view that all o f the N eutrality Act provisions were intended to apply to G overnm ent activities, we believe that § 964 by its term s is lim ited to circum stances involving a declared war, unlike the other neutrality laws, and was proposed to C ongress by Attorney General G regory in 1917 for the purpose of providing “for the observance o f obligations im peratively im posed by international law upon the U nited States.” H.R. Rep. No. 30, supra, at 9. 12 See United States v Curtiss-Wright Export Corp., 299 U.S. 304 (1936) 77 east Asia and Chile, President Ford in Angola, and President Carter in Iran. See gen erally Senate Select Comm, to Study Governmental Operations with re­ spect to Intelligence Activities, Final Report on “Foreign And Military Intelli­ gence,” S. Rep. No. 755, 95th Cong., 2d Sess. (Book I) (1976) (Church Committee Report); Emerson, War Pow ers Legislation, supra; Monaghan, P residen tial War-Making, 50 B.U. L. Rev. 19 (1970).23 Although all of these actions generated some controversy— in fact, one may fairly say that virtually all of them generated heated debate and remain contro­ versial today — no significant doubt was ever cast on the legality of the President’s conduct under the Neutrality Act. In addition to the numerous documented uses of troops by Presidents without congressional authorization, the Eisenhower, Kennedy and Johnson adminis­ trations alone conducted over 400 covert military operations in countries with which the United States was “at peace,” including Laos, Angola and Cuba. Church Committee Report, supra, at 46.24 In none of the many instances of such action has there been raised a credible allegation or serious debate in Congress regarding possible violations of the Neutrality Act. Moreover, there is strong contemporary evidence that the Neutrality Act is not regarded by Congress as applying to military deployments by the President or covert activities of the Central Intelligence Agency or the Department of Defense. This evidence takes the form of the recent enactment by Congress of provisions to “regulate” the President’s use of the regular armed forces and of covert operations conducted by the CIA and the Department of Defense. The War Powers Resolution,25 the Hughes-Ryan Amendment to the 1974 Foreign Assistance Act,26 the Intelligence Authorization Act,27 the “Boland Amend­ 23 L ess w ell-rem em bered examples include President E isenhow er's evacuation o f United States nationals from Egypt d uring the Suez crisis in 1956; the 5,000 troops that President Eisenhow er sent to Beirut to “ protect A m erican lives” and “assist” L ebanon in preserving its political independence during Lebanon's civil “ strife” in 1958; and President Jo h n so n ’s “airlift” actions in the C ongo in 1964 during the civil rebellion in that country as well as his deployment o f troops in the D om inican R epublic in 1965. See Em erson, War Powers Legislation, supra. 24 “C overt action” w as defined by the Senate Select Com m ittee on Intelligence A ctivities as “clandestine activity d esig n ed to influence foreign governm ents, events, organizations or persons in support of U.S. foreign policy conducted in such a way th a t the involvem ent o f the U.S. G overnm ent is not apparent.” Church C om m ittee R eport, supra, at 131. 25 In brief, the W ar P ow ers Resolution, 50 U.S.C. §§ 1541-1548, purports to require the President to report to C ongress w ithin 48 hours o f introducing U.S. A rm ed Forces, inter alia, “ into hostilities or into situations w here im m inent involvem ent in hostilities is clearly indicated by the circum stances,” and to term inate such use w ithin 60 days, unless Congress has declared w ar o r enacted a specific authorization for such use. 26 T he H ughes-R yan Amendment, 22 U .S.C . § 2422, provides: N o funds appropriated under the authority o f this o r any other Act may be expended by or on b e h alf o f the C entral Intelligence A gency fo r operations in foreign countries, o ther than activities intended solely fo r obtaining n ecessary intelligence, unless and until the President finds that each such op eratio n is im portant to the national security o f the U nited States and reports, in a timely fashion, a d escription and scope o f such operation to the appropriate com m ittees o f the Congress, including the C om m ittee on Foreign R elations o f the U nited States Senate and the Com m ittee on Foreign A ffairs o f the United S ta te s H ouse o f Representatives. 27 T he A ct, 50 U .S.C . § 413(a)(1), continued the H ughes-R yan A m endm ent’s executive reporting require­ m ent, but lim ited the reporting to the S enate and H ouse Select C om m ittees on Intelligence. It also provided that the D irector o f C entral Intelligence had to give prior, instead o f tim ely, notice o f “any significant C ontinued 78 ment” to the Further Continuing Appropriation Act of 1983,28 and the similar restrictions adopted by Congress in the Intelligence Authorization Act for Fiscal Year 1984,29 all purport to impose various reporting requirements and expenditure limits on the President regarding the conduct of military activities, which necessarily embrace activities that would otherwise be prohibited by the Neutrality Act if carried out by individuals acting without Government authori­ zation. These provisions constitute an explicit recognition by Congress of the President’s authority to conduct such activities against countries with whom the United States is “at peace” within the meaning of the Act. The Church Committee, after extensive hearings and exhaustive study of the matter over a period of fifteen months, concluded: The argument that through the provision of funds to the CIA Congress has effectively ratified the authority of the CIA to conduct covert action rests on the assumption that. . . Congress has known that the CIA was engaged in covert action and has provided funds to the CIA with the knowledge and intent that some of the funds would be used for covert action. * * * One of the reasons offered for the 1974 Amendment to the Foreign Assistance Act was that it would ensure that Congress would have sufficient information about covert action to deter­ mine if such activities should continue. * * * [Although the actual state of congressional knowledge about covert action prior to the 1970s is unclear[,] Congress . . . now knows that the CIA conducts covert action. Congress also knows that the Executive claims Congress has authorized the Agency 27 (. . . continued) anticipated intelligence activity.” O nly under extraordinary circum stances is the President authorized not to provide a full report to these com m ittees, and even then he m ust (a) report to the chairm an and ranking m inority member o f each com m ittee and other leaders o f Congress, (b) provide notice in a timely fashion subsequent to the covert operation taking place, and (c) provide a statem ent o f the reasons fo r not giving prior notice. 50 U.S.C § 413(a), (b). 28 The Boland A m endm ent to the Act, Pub. L. No. 97-377, 96 Stat. 1830, 1865, provided: N one o f the funds provided in this Act may be used by the Central Intelligence A gency or the Department o f D efense to fum ish m ilitary equipm ent, military training or advice, or other support for m ilitary activities, to any group o r individual, not part o f a country’s arm ed forces, for the purpose o f overthrow ing the G overnm ent o f N icaragua or provoking a m ilitary exchange betw een N icaragua and H onduras. 29 T he 1984 restriction provides: D uring fiscal year 1984, not more than $24,000,000 o f the funds available to the Central Intelligence A gency, the D epartm ent o f D efense, o r any other agency or entity o f the United States involved in intelligence activities m ay be obligated o r expended for the purpose or which w ould have the effect of supporting, directly or indirectly, m ilitary or param ilitary operations in N icaragua by any nation, group, organization, m ovement, o r individual. Pub. L. No. 98 -2 1 5 , 97 Stat. 1475. 79 to do so. Finally, Congress knows that the CIA receives its funds through secret transfers of funds appropriated to the Department of Defense and that some of the transferred funds are used to finance cover the action. In the future the failure by Congress to prohibit funds from being used for covert action by the CIA would clearly constitute congressional ratification of the CIA’s authority, eliminating any ambiguity. Church Committee Report, supra, at 498, 499, 501 (footnotes omitted). Moreover, these provisions were enacted with virtually no discussion of the Neutrality Act, which suggests that Congress did not view the Act as being relevant to Presidentially authorized expeditions, whether they be covert ac­ tivities of the Central Intelligence Agency or the Department of Defense, or overt activities of the United States Armed Forces. In addition, such legislation constitutes a recognition by Congress of the historic practice of Chief Execu­ tives, as well as of the changing nature of military operations and the increasing complexity in foreign alliances, which require the President to be able to respond immediately to world crises and threats to national security, short of usurping Congress’ constitutional prerogative to declare war.30 Notwithstanding the overwhelming support for the view that the Act was not intended to apply to Government officials acting pursuant to Presidential orders, and particularly in view of the recent explicit congressional authoriza­ tions of CIA activity in foreign countries noted above, the United States District Court in Dellums v. Smith, 577 F. Supp. 1449 (N.D. Cal. 1984),31 recently ordered the Attorney General to conduct a preliminary investigation, pursuant to Title VI of the Ethics in Government Act, 28 U.S.C. §§ 591-598, to determine whether allegations that Government officials had violated the Neu­ trality Act by their recent actions in Nicaragua warranted application for the appointment of an independent counsel under the Ethics in Government Act. Although not directly deciding that issue, the court noted that “the history of the Neutrality Act and judicial precedent demonstrate the reasonableness of the view that the Act applies to all persons, including the President.” 577 F. Supp. at 1454 (emphasis added). The action was brought as a mandamus action by a Member of Congress, in his capacity as a private citizen, and two other citizens, alleging that they had sustained various injuries from the Government’s activi­ ties concerning Nicaragua, to compel the Attorney General to conduct a pre­ 30 W hen asked about the applicability o f the N eutrality A ct to covert activities carried out during the K ennedy A dm inistration, A ttorney General R obert K ennedy replied: T here have been a num ber of inquiries from the press about our p resent neutrality laws and the p o ssib ility o f th eir application in connection with the struggle for freedom in Cuba. First, m ay I say that the neutrality law s are among the oldest law s in our statute books. M ost of the provisions date from the first years o f our independence and, w ith only minor revisions, have continued in force since the 18th century. Clearly they were not designed for the kind o f situation which exists in the world today. Statem ent o f A ttorney G eneral Kennedy to th e Press (Apr. 20, 1961) (cited in Lobel, The Rise and Decline of the Neutrality Act, supra, 24 Harv. Int’l L. J. a t 44 n.243.) 31 See also Dellums v. Smith, 577 F. Supp. 1456 (N.D. C al. 1984) (denial o f stay); Dellums v. Smith, 573 F. Supp. 1489 (N .D . Cal. 1983). 80 liminary investigation, pursuant to the Ethics in Government Act, into whether the President and other Executive Branch officials had violated the Act. In concluding that the Neutrality Act could reasonably be construed to proscribe official Government activity, for purposes of invoking the Ethics in Govern­ ment Act,32 the court relied primarily on United States v. Smith, the deficien­ cies of which we have noted above.33 Although Dellums, unlike the Smith case, cannot be dismissed as not involving truly “official” Government conduct, we nevertheless believe that the case was erroneously decided. The United States Court of Appeals for the Ninth Circuit has stayed the district court’s order pending resolution of the issue on appeal.34 Conclusion As we have demonstrated, the Neutrality Act was enacted primarily to protect the territorial sovereignty and independence of the United States from foreign entanglements during the early years of its history, as well as to enhance its ability to conduct a unified and consistent foreign policy, unim­ peded by the acts of individual citizens. That purpose has remained constant through its several amendments and codifications over the last two centuries. With the two possible exceptions noted in this memorandum of district court decisions, the Act has been consistently construed by Presidents, Congresses, and judges to apply to unauthorized acts of individuals. All prosecutions brought under the Act have been brought against individuals on unauthorized missions pursuing private “foreign policy” goals. Although the fact that the Act was not intended to apply to Government officials acting within the course and scope of their official duties was not made explicit in the text of the Act, we believe that the historical circumstances surrounding its enactment, together with the historical practice of Presidents from times contemporaneous with the Act’s passage to the present day, compel the conclusion that neither § 960 of the Act, nor any of its other provisions, impose criminal sanctions on the activities carried on by the Central Intelligence Agency and its agents, under the President’s direction, in Nicaragua. T h eo d o r e B . O lson Assistant Attorney General Office o f Legal Counsel 32 The court stated' The present question is thus lim ited to w hether the view is reasonable that the N eutrality Act proscribes the activities alleged by plaintiffs. For reasons set forth below, the question m ust be answ ered in the affirm ative. 577 F. Supp. at 1452. 33 The other evidence cited by the court in support o f its conclusion appeared to be lifted, w holesale, out o f p la in tiffs b rief without any further consideration. Even given this, the court intim ated an am bivalent view of the evidence, when it noted that “ [t]he contention that the N eutrality Act reaches executive officials is at least as persuasive as d efen d an t's claim that it does not " 577 F Supp. at 1452. 34 NOTE: A fter this opinion was issued by the O ffice o f Legal Counsel, the court o f appeals reversed the d istnct c o u rt's decision in Dellums on the ground that the plaintiffs lacked standing to bring the action. See Dellums v. Smith, 797 F.2d 817 (9th Cir. 1986) 81

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Use of Polygraph Examinations in Investigating Disclosure of Information About Pending Criminal Investigations T h e A tto rn e y G e n e ra l m ay o rd e r Ju stic e D e p a rtm e n t em p lo y ees to subm it to p o ly g ra p h tests to an sw er q u estio n s relatin g to p en d in g crim inal investigations, an d m ay d isc h a rg e an em p lo y ee fo r refusing to take such a test. E v en w h e re an em p lo y ee is en titled to c o o p e ra te w ith an official inv estig atio n ad eq u ate cau se, as lo n g as th e em p lo y ee n eed fo r th e test an d th e use to w h ic h its be d isc h a rg e d o n ly “ fo r cau se," failure to by taking a p o ly g ra p h test m ay c o n stitu te is g iven reasonable assu ran ces resp ec tin g th e results m ay be put. February 22, 1980 M EM O R A N D U M O P IN IO N F O R T H E A T T O R N E Y G E N E R A L You have asked us to consider the following questions regarding the use o f polygraphs in investigating unauthorized disclosures of inform a­ tion about pending criminal investigations: (1) may a Justice D epart­ ment employee be dismissed for refusing to submit to a polygraph test; and (2) may the results o f a polygraph test be used against the employee |n (a) administrative proceedings and (b) criminal proceed­ ings? We conclude that the A ttorney G eneral may order D epartm ent employees to submit to polygraph tests to answ er specific questions relating to pending criminal investigations and that employees w ho refuse to take polygraph tests may be discharged. If any em ployee is threatened w ith dismissal for refusing to take a polygraph test, then any evidence obtained through the test may not be used against the em­ ployee in a subsequent criminal proceeding. Em ployees should be w arned prior to taking the test that their refusal to participate may lead to their dismissal, but that nothing they say can or will be used against them in a criminal proceeding. It is doubtful that evidence obtained by way o f polygraph would, in any event, be admissible in a federal criminal proceeding, unless the employee stipulates to its admissibility. I. Polygraphs and Federal Employment T he use o f polygraphs for federal em ploym ent purposes has been the subject o f controversy for a num ber o f years. T he discussion focuses on tw o conflicting trends: the grow ing scientific acceptance o f the reliabil­ ity o f polygraphy and the increasing concern that polygraph examina­ 421 tions violate privacy rights and the F ourth, Fifth, and Fourteenth Amendments. In 1965, the House Com m ittee on G overnm ent O perations held hear­ ings and issued a report on the use o f polygraphs by the federal governm ent. H. Rep. No. 198, 89th Cong., 1st Sess. (1965). T he Com ­ mittee R eport noted that 19 federal agencies used polygraphs; the most frequently reported purpose o f the use involved security matters. A total o f just under 20,000 tests w ere administered in 1963. Eight agen­ cies used polygraphs to investigate employee misconduct. (The D epart­ ment o f Justice indicated its use was limited to security and criminal matters.) T he Com mittee strongly criticized the use o f polygraphs; it concluded that the accuracy o f such tests was unproven and that operators w ere generally unqualified and undertrained. Id. at 1-2. In 1968, the Civil Service Commission prom ulgated regulations which prohibit use o f polygraphs in em ploym ent screening and person­ nel investigations for members o f the com petitive service, except for national security purposes. This regulation, w hich does not apply to the excepted service, is currently in force. Federal Personnel Manual chap­ ter 736, Appendix D .1 Senator E rvin introduced a num ber o f bills which would have prohibited the use o f polygraphs in the hiring or firing o f federal employees and employees o f industries affecting interstate commerce. S. 2156, 91st Cong., 2d Sess. (1971); S. 2836, 93d Cong., 1st Sess. (1973), reprinted in 119 Cong. Rec. 42681 (1973). See also H.R. 2596, 94th Cong., 1st Sess. (1975). None o f these measures was enacted. A dditional congressional hearings w ere held in 1974 before the House G overnm ent O perations C om m ittee.2 A D eputy Assistant A tto r­ ney G eneral for the Criminal Division testified that polygraphs had proven useful in a small num ber o f investigations involving a “closed” group o f persons— e.g., persons with access to stolen or embezzled property. H ow ever, he noted that even in these circumstances, the Criminal Division viewed the results “w ith caution and opposes their introduction into evidence . . . .” Hearings at 414. A representative of the Federal Bureau o f Investigation (FB I) testified that “the F B I’s official position has always been that [it does] not consider polygraph examinations sufficiently precise to perm it absolute judgm ent o f guilt or non-guilt—lie o r truth—w ithout qualifications.” Id. at 418. He added, how ever, that w ith proper ethics by the polygraph examiner and tight adm inistrative control by the user agency, there is no question but that the polygraph can be a valuable investi­ ‘ T h e regulations require that agencies using polygraphs advise the individual o f his o r her privilege against self-incrim ination and right to counsel. T h e individual must voluntarily consent to the exam ina­ tion and a refusal to consent may not be included in his o r h er personnel file. a The Use o f Polygraphs and Sim ilar Devices by Federal Agencies, Hearings Before the House Committee on Government Operations, 93d C ong., 2d Sess. (1974) (" Hearings"). 422 gative aid to supplement interrogation in selected criminal and national security cases. Interrogation is a basic tool of any investigative agency and the FBI considers the poly­ graph technique a thorough and specialized interview pro­ cedure in which a skillful interrogator is attem pting to simply ascertain the truthful facts from a consenting indi­ vidual regarding a m atter in which we have jurisdiction. In some instances suspects will admit deception and furnish confessions an d /o r signed statements. In most in­ stances valuable new information or investigative direc­ tion is developed as a result o f the examination and followup interrogation. Id. at 419. T he use o f polygraphs was strongly criticized by the A m eri­ can Civil Liberties Union on constitutional and scientific grounds. Id. at 2-84. A study prepared in 1974 by the staff o f the Subcommittee on Constitutional Rights o f the Senate Judiciary Com mittee reached a conclusion similar to the House Com mittee in 1965. It stated that [cjompulsory submission to a polygraph test is an affront to the integrity o f the human personality that is uncon­ scionable in a society which values the retention o f indi­ viduals’ privacy. . . . T he Congress should take legisla­ tive steps to prevent Federal agencies as well as the private sector from requiring, requesting, or persuading any employee o r applicant for em ploym ent to take any polygraph tests. Staff o f the Subcomm. on Constitutional Rights o f the Senate Comm, on the Judiciary, 93d Cong., 2d Sess., Privacy, Polygraphs, and Em ploy­ ment, 17-18 (Comm. Print 1974). T he study also concluded, after re­ viewing the literature on polygraphs, that “doubt must be cast upon the objectivity, accuracy, and reliability o f the polygraph test.” Id. at 9. Based on the above, it is clear that use o f polygraphs for federal employment purposes remains controversial.3 While civil service regu­ lations prohibit their use for the com petitive service, Congress has been made aw are that no prohibition exists regarding the excepted service. Several bills that would have prohibited such use have not been enacted. II. Attorney General’s Authority to Terminate Employment Analysis o f the authority o f the A ttorney G eneral to dismiss an employee for refusing to submit to a polygraph examination must begin s States have taken an active role in limiting use o f polygraphs in the em ploym ent context. Eighteen states have licensing procedures for polygraph examiners; IS states prohibit use o f polygraphs. See C om m ent, Privacy: The Polygraph in Employment. 30 A rk. L. Rev. 35, 37-38 (1976). 423 w ith an understanding o f the statutory and regulatory protections af­ forded different classes o f D epartm ent employees. U nder the civil service laws, D epartm ent attorneys and employees of the FBI are in the excepted service. 28 U.S.C. § 536 (FBI); 5 C.F.R. § 213.3102(d) (governm ent attorneys). T he Office o f Personnel Manage­ ment (OPM ), by regulation, has exempted personnel in the excepted service from the statutory provisions regarding removal o f civil serv­ ants. See 5 C.F.R . § 752.401(c). H ow ever, persons in the excepted service w ho are non-probationary “preference eligibles,”—primarily veterans and the spouses and m others o f disabled and deceased veter­ ans—are afforded the civil service law protections. 5 U.S.C. § 7511(a)(1)(B). See id. § 2108 (defining “preference eligible”). T he civil service law protections are substantive and procedural. A preferenceeligible em ployee may be rem oved “only for such cause as will pro­ mote the efficiency o f the service.” Prior to removal, an employee is entitled to 30 days’ advance w ritten notice o f the reasons for the action, a reasonable time to respond to the charges, the assistance of an attor­ ney, a w ritten decision, and an appeal to the Merit System Protection Board (MSPB). 5 U.S.C. § 7513; D O J O rder 1752.1. D epartm ent employees w ho are in the excepted service and are not preference-eligibles have no rights arising from a statute or OPM regu­ lation to a statem ent o f reasons for discharge or to an appeal from an adverse action. See Paige v. Harris, 584 F.2d 178, 181 (7th Cir. 1978). H ow ever, the D epartm ent is bound by its ow n substantive standards and procedures even though the em ployee may have no legitimate expectation o f continued em ploym ent and could, under relevant stat­ utes, be summarily discharged by the A ttorney G eneral at any time. See Vitarelli v. Seaton, 359 U.S. 535, 539-40 (1959); Paige v. Harris, 584 F.2d at 184; M azaleski v. Treusdell, 562 F.2d 701, 717 n.38 (D.C. Cir. 1977). D epartm ent O rder 1752.1 (1975), as supplem ented by a M arch 27, 1979 notice, establishes minimal procedures for D epartm ent attor­ neys w ho are not preference-eligibles. C hapter 6 o f the order entitles them only to “a letter o f term ination prior to the effective date o f the term ination . . . [which provides] a brief statem ent o f the reasons for the term ination.” 4 Substantively, D epartm ent attorneys are provided no protections by D epartm ent regulations. And since they are not covered by the “for cause” standard o f the civil service laws, attorneys apparently serve at the pleasure o f the A ttorney General. T he A ttorney G eneral’s authority to rem ove Assistant United States A ttorneys (A U SA ) is expressly rec­ ognized by statute. See 28 U.S.C. § 542(b). T his conclusion must be qualified because o f recent cases that have held that agency handbooks and informal understandings may establish 4 FB I em ployees are excluded alto g eth er from D O J O rd e r 1752.1. 424 substantive protections for federal employees. In Ashton v. Cm letti, 613 F.2d 923 (D.C. Cir. 1979), the D.C. Circuit held that “ the FBI has fostered rules and understandings which [entitle an FBI employee] to believe that he would lose his jo b only for a job-related reason.” 613 F.2d at 928.5 T he court recognized that FBI employees are in the excepted service and that “ [standing alone, the exception could suggest to an employee that he held his jo b at the sufferance o f his em ployer.” It went on to find, how ever, that the FBI Handbook, Manual o f Instructions, and the plaintiffs letter o f appointm ent created an implied promise that the employee would be dismissed “only for failing to perform his duties satisfactorily and w ithout prejudice to the F B I’s achievem ent o f its law-enforcem ent mission.” 613 F.2d at 930. In es­ sence, the court held that FB I employees, even though placed in the excepted service by statute, may be discharged only upon a finding o f cause similar to that required for dismissal o f members o f the com peti­ tive service.6 Once it is determ ined that an employee has a legitim ate claim to continued em ploym ent—Le„ that he o r she may be not be fired at any time—then procedural due process applies: the em ployee must be afforded a hearing and other procedural safeguards. We are unaw are o f any handbooks or guidelines upon w hich D ep art­ ment attorneys could rely to establish a legitimate claim to continued employment. W e cannot, how ever, rule out the possibility that an attorney could point to a letter o f appointm ent or to informal under­ standings which a court w ould deem sufficient to establish a property interest.7 In sum, the A ttorney G eneral probably has the authority to dismiss a non-veteran D epartm ent attorney for any reason, and the attorney is entitled only to a statem ent o f reasons for the discharge. N on-veteran FBI agents probably may be discharged only for job-related reasons, even though they are in the excepted service; they are entitled to a due process hearing. D epartm ent employees w ho are veterans may be dis­ charged only for cause and are entitled to statutory, OPM and D O J procedural rights. 5 T he case concerned the F B I's discharge o f an em ployee because o f his adm itted hom osexuality. T h e court held that (he em ployee w as entitled to a due process hearing prior to term ination to determ ine w h eth er his hom osexuality constituted a jo b -related basis fo r his dismissal. 6 See also Paige v. Harris, 584 F.2d 178 (7th Cir. 1978) (H U D H andbook provides rules and understandings creating legitim ate claim to continued em ploym ent for em ployees in the excepted service); Colm v. Vance, 567 F.2d 1125 (D .C . Cir. 1977) (rem anding for consideration o f w h eth er the Foreign Service A ct requires prom otion to be based solely on perform ance and m erit, even though plaintiff could dem onstrate no constitutional p ro p erty entitlem ent to prom otion). 7 F o r example, it is conceivable that a c o u rt could find that w hen an A U SA agrees to a 3-year com m itm ent w ith a U.S. A tto rn ey 's Office, that that agreem ent constitutes a prom ise by the D e p art­ ment not to discharge the a tto rn ey d u rin g that period w ithout good cause. A c o u rt m ight also hold that the D epartm ent's regulation requiring a statem ent o f reasons for term ination im plicitly requires the. D epartm ent to have a “g o o d ” reason. 425 III. What Constitutes “Cause” As noted above, the civil service laws authorize removal o f covered civil servants “only for such cause as will prom ote the efficiency o f the service.” 5 U.S.C. §7513. T he D.C. Circuit has similarly held that an FB I em ployee may be dismissed “only for failing to perform his duties satisfactorily and w ithout prejudice to the F B I’s achievem ent o f its lawenforcem ent mission.” Ashton v. Civiletti, supra.6 T he question is w hether failure to obey an order to submit to a polygraph examination is sufficient cause for discharge under these standards. T he following discussion assumes that at the time the em ployee is ordered to take the test, the employee is assured both that he or she may be discharged for refusing to take the test and that no inform ation obtained in the course of, or as a result of, the examination may be used against him or her in a subsequent criminal proceeding.9 A t the minimum, failure to obey a legitimate order of a superior constitutes insubordination—an offense punishable by removal. See FBI Manual o f Instructions, Part I, § 1-20-2 (refusal to cooperate during an interview regarding w ork-related m atters permits discipline for insubor­ dination); § 13, Schedule o f Offenses and Penalties for FB I Employees (insubordination punishable by censure to removal). A refusal to submit to a polygraph test also arguably impedes investigation o f governm ent misconduct. It thus directly effects the efficiency o f the D epartm ent by hindering removal o f offending employees and restoration o f public confidence in the D epartm ent. T he Schedule o f Disciplinary Offenses and Penalties for D O J Employees, included in D O J O rder 1752.1, identifies the offense o f “refusal to cooperate in an official governm ent 8 It is quite clear that the underlying co n d u ct—disclosure o f facts o f a pending criminal investiga­ tion—perm its rem oval o f the offending employees. T h e co nduct may violate various crim inal statutes and plainly violates a num ber o f O PM and D O J standards o f conduct. See, e.g.. 5 C .F .R . §§ 735.201a(c) (im peding governm ent efficiency); (e) (m aking a governm ent decision outside official channels); (0 (affecting adversely the confidence o f the public in the integrity o f the governm ent); 73S.206 (misuse o f inform ation not made available to the general public); 735.209 (conduct prejudicial to the governm ent); 28 C .F .R . §§ 45.735-2(c)(3) (im peding governm ent efficiency); (c)(6) (affecting adversely the confidence o f the public in the integrity o f the governm ent); 45.735-10 (im proper use o f official inform ation); 45.735-18 (1980) (conduct prejudicial to the governm ent). It is possible that an em ployee charged w ith unauthorized disclosure may assert a First A m endm ent defense: that the governm ent may not constitutionally prohibit him o r her from com m enting on m atters o f public im portance. W hile the em ployee may have an interest in com m enting upon m atters o f public interest, this interest must be balanced against the g overnm ent's interest in prom oting the efficiency o f the public services it perform s th ro u g h its em ployees. See Pickering v. Board o f Education, 391 U.S. 563 (1968). T h e D .C . C ircuit has identified the relevant factors in the “balancing test" as: the sensitivity and confidential nature o f the em ployee’s position and the governm ent's consequently legitim ate need for secrecy; the subject m atter o f the speech; the truth o r falsity o f the speech; the interference w ith jo b perform ance; the context o f the speech; the effect o f the speech on agency m orale and w orking relationships w ith im m ediate superiors. Hanson v. Hoffman. 628 F.2d 42, 50 (D .C . Cir. 1980). It w ould appear that the g o vernm ent’s interest in preventing disclosure is at its maximum in regard to inform ation relating to pending crim inal investigations. 9 W ithout these assurances, an em ployee could not constitutionally be fired for refusing to take the polygraph test. See Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973); see also Sanitation Men v. Sanitation Commissioner. 392 U.S. 280(1968). 426 inquiry” and lists the suggested discipline as “official reprimand to removal.” T he obligation o f public officials to answer questions related to the perform ance o f their public duties is well-recognized. T he Supreme C ourt has upheld the right of public em ployers to fire employees solely for their refusal to sign affidavits or answer questions related to their fitness to perform their public functions. See, e.g., Lefkowitz v. Turley, 414 U.S. 70, 84 (1973); Sanitation Men v. Commissioner, 392 U.S. at 285; Beilan v. Board o f Education, 357 U.S. 399 (1958). These holdings are based on the recognized public interest in the accountability of public servants. This interest appears at its zenith when the integrity o f lawenforcement activities is at stake. As stated by Justice Harlan, [I]t is surely plain that [a State] may . . . require its employees to assist in the prevention and detection o f unlawful activities by officers o f the state government. T he urgency o f these requirem ents is the m ore obvious . . . w here the conduct in question is that o f officials directly entrusted with the adm inistration o f justice. The im portance for our systems o f justice o f the integrity of local police forces can scarcely be exaggerated. Garrity v. N ew Jersey, 385 U.S. 493, 507-08 (1967) (Harlan, J., dissenting).10 Thus, if the use o f polygraphs is deemed a necessary part of an investigation o f leaks, then a refusal to submit to such a test could impede the investigation and consequently hinder the efficiency o f the D epartm ent. D epartm ent standards o f conduct recognize the affirma­ tive duty o f employees to cooperate w ith official investigations, and refusals to cooperate are deemed serious enough offenses to w arrant removal in appropriate cases. W e can see no meaningful difference between compelling an employee to answer questions or sign an affida­ vit and compelling an employee to submit to a polygraph test.11 While the results o f the test may be open to question and debate, the refusal to take the test may properly be characterized as conduct which does not prom ote the efficiency o f the Departm ent. Accordingly, we believe that an employee could be dismissed for refusing to take a polygraph exam ination.12 10 A lthough the C o u rt held in Garrity that the incrim inating statem ents o f a public official obtained under threat o f dismissal could not be used in a criminal proceeding, the m ajority did not disagree w ith Justice H arlan's statem ent regarding the public interest that public officers provide information about the conduct o f their activities. See also Gardner v. Broderick, 392 U.S. 273, 278 (1968). 11 We reach this conclusion even though w e recognize that the use o f a polygraph is a g reater intrusion into an individual's privacy to the extent it probes unrelated m atter, private thoughts, and beliefs. 12 O ne district court has upheld the authority o f a city transit au th o rity to fire em ployees suspected o f intoxication w ho refuse to submit to urinalysis o r blood tests. T he c ourt relied upon the Garrity line o f cases for the proposition that public em ployees may be discharged for refusal to properly account for the perform ance o f their duties. Division 241, Am algam ated Transit Union v. Suscy. 4fi5 F. Supp. 750 (N .D . III. 1975), a ffd , per curiam, 538 F.2d 1264 (7th Cir.), cert, denied. 429 U.S. 1029 (1976). 427 An arguable objection to this conclusion may be phrased as follows. Polygraph tests have not achieved recognized acceptance among the courts and the experts as accurate indicators o f truth-telling. F or exam­ ple, the test may show deception w here a truthful subject is nervous, tense, over-tired, or angry, or when an examiner asks misleading or inadequate questions. See United States v. Alexander, 526 F.2d 161, 165 (8th Cir. 1975). Thus, w here an em ployee believes that the results of the polygraph will not be accurate, refusal to take the examination should not be grounds for removal. We believe that if the investigator can establish a reasonable basis for the use o f the polygraph in the course o f the investigation, then a refusal by an em ployee to take the test would be impermissible, not­ withstanding the subjective fear o f the employee. A reasonable basis would be established by showing the need for use o f the technology and the state o f the art. W e believe that adequate scientific evidence exists w hich w ould support an investigator’s decision that polygraphy could be helpful in the pursuit o f the investigation. See, e.g., United States v. D e Betham, 470 F.2d 1367 (9th Cir. 1972) (per curiam ), cert, denied, 412 U.S. 907 (1973) (although holding that district court did not abuse discretion in excluding polygraph evidence, court noted that evidence “vigorously su p p o rted ] the accuracy o f polygraphic evi­ dence”); United States v. Oliver, 525 F.2d 731, 737 (8th Cir. 1975), cert, denied, 424 U.S. 973 (1976) (upholding admission of polygraph evidence w here parties stipulated admissibility; court could not conclude that polygraph “is so unreliable as to be inadmissible in this particular case”); Tarlow , Adm issibility o f Polygraph Evidence in 1975: An A id in Determining Credibility In a Perjury-Plagued System, 26 Hastings L.J. 917 (1975).13 We recognize, how ever, that reliability of polygraphy remains hotly contested, and courts o f appeal have perm itted introduc­ tion o f polygraph evidence only when the parties have stipulated to its admissibility. See United States v. Alexander, supra (summarizing cases and denying trend o f adm itting polygraph evidence); Hearings, supra . 14 T he reasonableness o f the use o f a polygraph would be supported by a record establishing the reason for its use, the expected accuracy of the technology, the qualifications o f the examiner, and the reliance upon other evidence to establish and corroborate the results o f the investigation.15 Once the reasonable basis for the use o f polygraphy is established, we do not believe than an employee can, with impunity, 13 O ne factor frequently ciled by courts for excluding polygraph evidence is the probability that the ju ry will acco rd it undue w eight. O f course, this concfern is nbt present w hen adm inistrative proceed­ ings are contem plated. 14 T h e D .C . C ircuit continues to adhere to its per se rule against admissibility as established by the leading case o f Frye v. United States, 293 F. 1013 (D .C . Cir. 1923). See United States v. Skeens, 494 F.2d 1050 (D .C . Cir. 1974). 15 Presum ably, the quality o f the exam ination and the qualifications of the exam iner w ould be quite high if the exam ination is co n d u cted by FB I polygraph experts. 428 refuse to take the examination any more than he or she could refuse to submit to fingerprinting or blood-typing. IV. Use of the Results of a Polygraph Test As long as the employee is promised that any evidence obtained in the course of the polygraph test will not be used in a subsequent criminal proceeding, the Fifth Am endm ent does not bar its use in an administrative proceeding.16 O f course, such a promise, and the Fifth Amendment, prohibit use in any criminal proceeding. Garrity v. New Jersey, supra. V. Conclusion We conclude that the A ttorney General may discharge an employee for refusing to take a polygraph examination w here the examination is necessary to an official investigation of unauthorized disclosures about pending criminal investigations, provided that the employee has been w arned that failure to submit to the test could lead to his or her dismissal and that nothing obtained in the examination will be used against the employee in a subsequent criminal proceeding. Even if a court were to hold that D epartm ent attorneys may only be discharged “ for cause,” we conclude that, generally, failure to cooperate with an official investigation is adequate cause, although each situation must be evaluated on a careful case-by-case basis. L arry A. H am m ond Acting Assistant Attorney General Office o f L egal Counsel 16 Because o f the controversy surrounding the use o f polygraphs, it is possible than an em ployee discharged solely on the basis o f polygraphic evidence w ould challenge the dismissal as arbitary and irrational agency action. W e do not believe that, absent a judicially recognizable property or liberty interest, an em ployee may challenge agency action as a violation o f due process unless the agency has not followed its ow n regulations. See Paige v. Harris, 584 F.2d at 184; c f Bishop v. Wood, 426 U.S. 341 (1976). A t least one court, how ever, has held that a governm ent decision is subject to challenge as arbitrary and capricious even w here the em ployee has no pro p erty right in continued em ploym ent. Heaphy v. U.S. Treasury Dept., 354 F. Supp. 396 (S.D .N .Y . 1973) (T yler, J.), a f f d on opinion below. 489 F.2d 735 (2d Cir. 1974). If a court w ere to permit a challenge to a dismissal based solely on the results o f a polygraph exam ination, the non-arbitrariness o f the action w ould depend upon such factors as the quality o f the exam ination, the skill and training o f the exam iner, and the inherent credibility o f the em ployee’s statements. 429

Write a legal research memo on the following topic.

Firearms Disabilities of Nonimmigrant Aliens Under the Gun Control Act The prohibition in 18 U.S.C. § 922(g)(5)(B) of shipping, transporting, possessing, or receiving any firearm or ammunition that has a connection to interstate commerce applies only to nonimmigrant aliens who must have visas to be admitted to the United States, not to all aliens with nonimmigrant status. The text of the statute forecloses the interpretation advanced by the Bureau of Alcohol, Tobacco, Firearms and Explosives in an interim final rule applying section 922(g)(5)(B) to all nonimmigrant aliens. October 28, 2011 MEMORANDUM OPINION FOR THE CHIEF COUNSEL BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES A provision of the federal Gun Control Act prohibits any “alien” who has “been admitted to the United States under a nonimmigrant visa” from shipping, transporting, possessing, or receiving “any firearm or ammunition” that has a connection to interstate commerce. 18 U.S.C. § 922(g)(5)(B) (2006). In 2002, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) issued an interim final rule interpreting this prohibition to apply to any alien who has the status of “nonimmigrant alien,” regardless of whether the alien required a visa in order to be admitted to the United States. See 27 C.F.R. § 478.32(a)(5)(ii) (2011). In March 2011, in response to a request for informal advice regarding ATF’s interpretation, we concluded that the text of the statute forecloses that interpretation. We explained that the text is clear: the provision applies only to nonimmigrant aliens who must have visas to be admitted, not to all aliens with nonimmigrant status. In May 2011, you requested a formal opinion from the Office on this matter.1 This memorandum memorializes and elaborates upon the informal advice we provided in March. In the course of formalizing our advice, we received views from the Department of Homeland Security (“DHS”), 2 which also concluded that the See Memorandum for the Office of Legal Counsel from Stephen R. Rubenstein, Chief Counsel, Bureau of Alcohol, Tobacco, Firearms and Explosives (May 11, 2011) (“ATF Memorandum”). 2 See Letter for Cristina M. Rodríguez, Deputy Assistant Attorney General, Office of Legal Counsel, from Seth Grossman, Chief of Staff, Office of the General Counsel, Department of Homeland Security (July 20, 2011) (“DHS Letter”). We also received 1 171 35 Op. O.L.C. 171 (2011) interpretation reflected in ATF’s interim final rule conflicts with the plain text of the statute. I. Congress enacted the Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (codified at 18 U.S.C. §§ 921–931), to “establish[] a detailed federal scheme” to govern “the distribution of firearms,” Printz v. United States, 521 U.S. 898, 902 (1997). Congress also prescribed criminal and civil penalties for knowing violations of the statute’s provisions. See 18 U.S.C. § 924(a)(2) (2006) (“Whoever knowingly violates subsection . . . (d) [or] (g) . . . of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.”). The concerns animating the legislation included the need to address “the widespread traffic in firearms” and the “general availability” of firearms to persons “whose possession thereof was contrary to the public interest.” United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364 (1984) (internal quotation marks omitted); see also Barrett v. United States, 423 U.S. 212, 220 (1976) (“The history of the 1968 Act reflects a . . . concern with keeping firearms out of the hands of categories of potentially irresponsible persons, including convicted felons.”). As part of the Act’s scheme, Congress laid out various so-called “prohibitors” to identify the categories of people barred from possessing, shipping, transporting, or receiving firearms. See 18 U.S.C. § 922(h) (Supp. IV 1968). These prohibitors are now codified in 18 U.S.C. § 922(g) (2006). In 1998, Congress added the prohibitor here at issue to the statute: section 922(g)(5)(B) bars “aliens” 3 who have “been admitted views from the Federal Bureau of Investigations (“FBI”). See E-mail for Cristina M. Rodríguez, Deputy Assistant Attorney General, Office of Legal Counsel, from Scarlett Everly, National Instant Criminal Background Check System Bureau of Investigation, Federal Bureau of Investigation (June 13, 2011) (noting that when a Federal Firearms Licensee provides the FBI with information that a prospective purchaser has indicated he or she is a non-U.S. citizen, the FBI searches DHS records to determine if the potential purchaser is an unlawful or nonimmigrant alien and processes firearm background checks in line with ATF’s interpretation of 18 U.S.C. § 922(g)(5)(B)). 3 The original Gun Control Act did not contain a prohibitor applicable to aliens. Congress first adopted that prohibition in title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. app. § 1202(a) (Supp. IV 1968), barring possession by 172 Firearms Disabilities of Nonimmigrant Aliens Under the Gun Control Act to the United States under a nonimmigrant visa” from possessing, shipping, transporting, or receiving firearms. Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Pub. L. No. 105277, 112 Stat. 2681 (codified at 18 U.S.C. § 922(g)(5)(B)). 4 In 2002, ATF adopted an interim final rule implementing section 922(g)(5)(B). See Implementation of Public Law 105-277, Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Relating to Firearms Disabilities for Nonimmigrant Aliens, and Requirement for Import Permit for Nonimmigrant Aliens Bringing Firearms and Ammunition Into the United States (2001R-332P), 67 Fed. Reg. 5422 (Feb. 5, 2002) (temporary rule, Treasury decision). 5 ATF interpreted the prohibitor to include all aliens with the status of nonimmigrant alien, not just those nonimmigrants who required a visa to be admitted to the United States. In explaining this interpretation, ATF acknowledged that section 922(g)(5)(B) applied by its terms to “aliens admitted to the United States under a nonimmigrant visa,” but also determined that such a visa “simply facilitates travel and expedites inspection and admission to the United States,” and “does not itself provide nonimmigrant status.” Id. at 5422. Based on this observation, as well as its view that drawing distinctions among different types of nonimmigrant aliens was neither rational nor supported by the legislative history, ATF concluded that Congress intended the prohibitor to cover all persons with nonimmigrant alien status, see id., and issued its interim final rule. See 27 C.F.R. § 478.32(a)(5)(ii); see id. § 478.11 (defining “nonimmigrant alien”). ATF has since understood “‘alien[s]’” who are “‘illegally or unlawfully in the United States,’” United States v. Bass, 404 U.S. 336, 337 n.1 (1971). In 1986, Congress repealed title VII and added a firearms disability for aliens who are “illegally or unlawfully in the United States” to 18 U.S.C. § 922. See Firearm Owners’ Protection Act, Pub. L. No. 99-308, 100 Stat. 449, 457 (1986). 4 Section 922(y)(2) lists various exceptions to the prohibition in section 922(g)(5)(B), and section 922(y)(3) sets out a waiver procedure for aliens subject to the requirements of section 922(g)(5). 5 ATF issued the interim rule before Congress transferred ATF from the Department of the Treasury to the Department of Justice through the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. See 6 U.S.C. § 531(c) (2006); 28 U.S.C. § 599A(c)(1) (2006). Congress originally delegated rulemaking authority to implement the Gun Control Act to the Secretary of the Treasury but, due to the transfer, such rulemaking authority now resides in the Attorney General. See 18 U.S.C. § 926(a) (2006). 173 35 Op. O.L.C. 171 (2011) section 922(g)(5)(B) to apply to all aliens with nonimmigrant status, including nonimmigrant aliens admitted to the United States without a visa, pursuant either to the Visa Waiver Program, see 8 U.S.C. § 1187 (2006), or to regulations otherwise exempting them from visa requirements. 6 II. You have asked whether ATF’s interim rule permissibly construes section 922(g)(5)(B). Our analysis of the provision “begin[s], as always, with the text of the statute.” Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163, 173 (2009) (internal quotation marks omitted). In our view, the text of the statute is clear and forecloses ATF’s interpretation. Section 922(g)(5)(B) makes it unlawful for aliens who have been “admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26))” to ship, transport, possess, or receive any firearms or ammunition. 18 U.S.C. § 922(g)(5)(B). Section 101(a)(26) of the Immigration and Nationality Act (“INA”), in turn, defines a “nonimmigrant visa” as “a visa properly issued to an alien as an eligible nonimmigrant by a competent officer as provided in this chapter.” 8 U.S.C. § 1101(a)(26) (2006). The text of section 922(g)(5)(B), read in accord with section 101(a)(26) of the INA, therefore makes it a crime for an alien who has been “issued” a “visa . . . as an eligible nonimmigrant by a competent officer” to ship, transport, possess, or receive any firearm or ammunition. 7 6 By statute, the Attorney General and the Secretary of State are authorized to establish a Visa Waiver Program under which a nonimmigrant alien may seek a waiver of the visa requirement if, among other things, he or she seeks entry “for a period not exceeding 90 days”; is “a national of, and presents a passport issued by, a country which . . . extends . . . for immigration admissions, reciprocal privileges to citizens and nationals of the United States”; and “has been determined not to represent a threat to the welfare, health, safety, or security of the United States.” 8 U.S.C. § 1187(a)(1), (2), (6) (2006). In addition, the visa requirement has been waived by regulation for certain categories of foreign nationals, including nationals from particular countries, such as Canada and Mexico, seeking admission to the United States for particular purposes. See 22 C.F.R. § 41.2(a), (g) (2011). 7 Section 922(d)(5) similarly makes it unlawful to sell or dispose of a firearm or ammunition to “an alien” who “has been admitted to the United States under a nonimmigrant 174 Firearms Disabilities of Nonimmigrant Aliens Under the Gun Control Act Nothing in this statutory text indicates that the prohibition applies to persons simply by virtue of their status as nonimmigrants. The statute instead requires that the covered nonimmigrant possess a visa. ATF’s interim rule thus reads a key limiting phrase—“admitted . . . under a nonimmigrant visa”—out of the statute, in contravention of bedrock principles of statutory interpretation. See, e.g., Fid. Fed. Sav. & Loan Ass’n v. De La Cuesta, 458 U.S. 141, 163 (1982) (declining to construe a statute “so as to render [certain] provisions nugatory, thereby offending the well-settled rule that all parts of a statute, if possible, are to be given effect”) (internal quotation marks omitted); see also DHS Letter at 5–8 (noting that ATF’s interpretation finds support in neither ordinary linguistic practices nor case law). ATF suggests that the text of section 922(g)(5)(B) is “inaccurate and ambiguous” because nonimmigrant aliens are not actually “‘admitted under’” a visa. ATF Memorandum at 2. Instead, a visa merely “expedites admission to the United States by showing that the State Department found the person to be admissible.” Id. According to ATF, it then “is up to the immigration officer at the port of entry to determine if the individual is in fact admissible and, if so, under what terms and conditions and in what category.” Id. Though DHS indicates that ATF accurately describes the admissions process, see DHS Letter at 7, that description does not support ATF’s reading of section 922(g)(5)(B). As a matter of ordinary usage, the process to which ATF refers could be described as admission “under a nonimmigrant visa” because the nonimmigrant must present the visa when seeking admission. As DHS emphasizes, see DHS Letter at 7–8, courts have employed language similar to that contained in the statutory provision when describing different categories of aliens, underscoring that “admitted . . . under a nonimmigrant visa” can be used in a non-technical sense to refer to the particular subclass of nonimmigrant aliens admitted with a visa. See, e.g., Phal v. Mukasey, 524 F.3d 85, 87 (1st Cir. 2008) (noting an alien “entered the United States on a nonimmigrant visa”); visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)).” 18 U.S.C. § 922(d)(5) (2006). Because ATF has requested our view on the meaning of section 922(g)(5)(B) only, our opinion is limited to that subsection, but our analysis would likely apply to section 922(d)(5), provided no relevant differences between that provision and section 922(g)(5)(B) exist. 175 35 Op. O.L.C. 171 (2011) Choe v. INS, 11 F.3d 925, 943 (9th Cir. 1993) (“Before 1960, the Attorney General had three options when faced with an adjustment application from an alien who entered under a nonimmigrant visa[.]”). Moreover, “[i]mmigration law draws a distinction between aliens in possession of a nonimmigrant visa and those who have been admitted in a nonimmigrant classification.” DHS Letter at 5. The statutory reference to nonimmigrants “admitted . . . under a nonimmigrant visa” therefore has a clear meaning here: it indicates that Congress intended the firearms disabilities in section 922(g)(5)(B) to apply only to a subset of nonimmigrants—namely those who possess a “nonimmigrant visa”—whatever that visa’s function. 8 ATF also justifies its interpretation of the statutory text on the ground that applying the prohibitor to only a particular subset of nonimmigrants would produce “irrational” results, because “[t]here is no logical reason nonimmigrants with nonimmigrant visas should have a firearms disability, if nonimmigrants without visas do not have the disability.” ATF Memorandum at 4. Although an established canon of statutory construction might permit departure from the literal meaning of statutory text where such a reading would produce “positively absurd” results, United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994), the literal meaning of section 922(g)(5)(B) is far from absurd. Indeed, the Supreme Court recently has emphasized that “it is not this Court’s task to decide whether the statutory scheme established by Congress is unusual or even bizarre.” PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2582 (2011) (internal quotation marks omitted). Although the text of the statute does not include an express rationale for the distinction drawn between nonimmigrants with visas and those without, it is not difficult to discern a rational basis for the distinction. DHS has told us, for example, that applying the prohibitor to nonimmigrant aliens in a limited fashion, “while not ideal . . . would not be irraDHS also observes that Congress would have been fully aware of the existence of categories of nonimmigrants who did not require visas to be admitted to the United States when it enacted section 922(g)(5)(B). The Visa Waiver Program had been in effect for twelve years at the time Congress debated section 922(g)(5)(B), and Canadian and Mexican nationals in possession of border crossing cards had long been permitted to enter the United States without a nonimmigrant visa. See DHS Letter at 7; see also Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990) (“We assume that Congress is aware of existing law when it passes legislation.”). 8 176 Firearms Disabilities of Nonimmigrant Aliens Under the Gun Control Act tional,” as it is possible that Congress considered those aliens eligible for admission to the United States without a nonimmigrant visa to be a “lesser security risk” than aliens admitted with visas. DHS Letter at 8–9. After all, Congress has tied the decision whether to waive visa requirements to judgments about a waiver’s effects on public safety, and Congress here could have concluded that nonimmigrant aliens who do not require visas do not present the public safety risks that warrant prohibiting their acquisition of firearms. See id. at 8. 9 Other factors may also explain why Congress decided to treat nonimmigrant aliens eligible for visa waivers differently from nonimmigrant aliens admitted under visas. For example, nonimmigrants admitted under the Visa Waiver Program may well spend less time in the country than other nonimmigrants, see 8 U.S.C. § 1187(a)(1) (2006) (imposing 90-day limit on aliens admitted under Visa Waiver Program), perhaps making them less likely to purchase firearms. Congress also could have thought that imposing criminal firearms prohibitions on nonimmigrant aliens admitted under the program would frustrate the objectives of the program, which include reducing barriers to and burdens upon travel. See Department of State, Visa Waiver Program (VWP), http://travel.state.gov/visa/ temp/without/without_1990.html (last visited Oct. 21, 2011) (“The program was established to eliminate unnecessary barriers to travel, stimulating the tourism industry, and permitting the Department of State to focus consular resources in other areas.”). Congress (or some members thereof) ultimately could have had all, some, or none of these considerations in mind. Whatever Congress’s motivation, these rationales demonstrate that it would have been rational for Congress to draw a statutory line between nonimmigrants with visas 9 DHS cites 8 U.S.C. § 1187(c)(2)(C), which provides that a country will not be eligible for the Visa Waiver Program unless the Secretary of Homeland Security “evaluates the effect that the country’s designation would have on the law enforcement and security interests of the United States.” See also id. § 1187(c)(2)(F) (Supp. IV 2010) (requiring participating countries to share information regarding safety risks); Department of State, Visa Waiver Program (VWP), http://travel.state.gov/visa/temp/without/without_1990. html (last visited Oct. 21, 2011) (“To be admitted to the Visa Waiver Program, a country must meet various security and other requirements, such as enhanced law enforcement and security-related data sharing with the United States and timely reporting of both blank and issued lost and stolen passports. VWP members are also required to maintain high counterterrorism, law enforcement, border control, and document security standards.”). 177 35 Op. O.L.C. 171 (2011) and those without, such that the plain meaning of the text is not absurd. ATF may be correct that the firearms disabilities in section 922(g)(5)(B) should be applied to all nonimmigrant aliens “as a matter of sound public policy” or administrative convenience. ATF Memorandum at 4. But any debate over whether the current statute is deficient as a policy matter ultimately “belongs in the halls of Congress.” Powerex Corp. v. Reliant Energy Servs., 551 U.S. 224, 237 (2007). ATF next turns to legislative history to support its position. ATF first points to two floor statements made by members of Congress during the debate over section 922(g)(5)(B): a statement by Senator Richard Durbin that a restriction on gun possession should apply to persons who “‘come into this country as our guest, not as a citizen of the United States,’” and a statement by Senator Larry Craig supporting restrictions on gun possession by persons “‘who are guests in our country, legally or illegally.’” ATF Memorandum at 2 (quoting 144 Cong. Rec. 16,493–94 (1998)). From these statements, ATF concludes that Congress intended the gun control prohibition to apply to all nonimmigrant aliens, regardless of visa status. Because the text of the statute is clear, any resort to legislative history in this context is unnecessary. See, e.g., Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992) (“When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.” (internal quotation marks omitted)); Ratzlaf v. United States, 510 U.S. 135, 147–48 (1994) (“[W]e do not resort to legislative history to cloud a statutory text that is clear.”). What is more, floor statements are generally of limited interpretive assistance as they “reflect at best the understanding of individual Congressmen.” Zuber v. Allen, 396 U.S. 168, 186 (1969). Indeed, we think it unlikely that even unambiguous floor statements by a few members of Congress could ever overcome the plain meaning of a statute. See Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 457 (2002) (“Floor statements from two Senators cannot amend the clear and unambiguous language of a statute.”). In any event, neither of the floor statements speaks directly to the interpretive issue addressed here. Neither uses the term “nonimmigrants.” Each statement refers instead to “guests” or a person who enters the country “not as a citizen” of the United States. The plain meaning of these references, particularly the reference to non-citizens, encompasses all 178 Firearms Disabilities of Nonimmigrant Aliens Under the Gun Control Act immigrants, including lawful permanent residents—immigrants who neither ATF nor the legislative record suggests are covered by section 922(g)(5)(B). Thus, two Senators’ use of the references “guest[]” and person who enters “not as a citizen” during a floor debate provides little, if any, insight into the meaning of the statutory phrase “nonimmigrants . . . admitted under a visa.” Cf. Aaron v. SEC, 446 U.S. 680, 697 (1980) (“it would take a very clear expression in the legislative history of congressional intent to the contrary to justify the conclusion that the statute does not mean what it so plainly seems to say”). 10 ATF also highlights a floor statement from the debate over a laterenacted statutory provision—an explosives prohibition contained in the Homeland Security Act of 2002. See ATF Memorandum at 4. During that legislative debate, a section-by-section analysis was introduced into the record explaining that the prohibition would apply to “aliens other than lawful permanent resident aliens” and that the provision “brings the explosives law in line with most categories of prohibited people in the Gun Control Act.” 148 Cong. Rec. 22,985 (2002) (noting also that “[t]he language relating to non-immigrant aliens differs slightly from that in the Gun Control Act, as technical changes have been made to improve the clarity of the provisions”). ATF’s argument appears to be that (i) because a sectional analysis accompanying the explosives statute stated that the statute would bring the law into line with the Gun Control Act; (ii) because the explosives provision clearly applied to all aliens other than lawful permanent residents, including all nonimmigrant aliens; and (iii) because the only difference in the language of the definitions of the two statutes was “technical,” Congress must have intended the Gun Control Act to apply to all nonimmigrant aliens. See ATF Memorandum at 4. 10 Although it is unnecessary to our statutory analysis, we note that elements of the legislative history reinforce the plain meaning of the text. The legislative record suggests that the prohibition in section 922(g)(5)(B) was added in response to a shooting by “a resident of the Nation of Lebanon” who had come “to the United States on a nonimmigrant visa, such as a tourist visa.” 144 Cong. Rec. 16,493 (1998). Furthermore, the principal sponsor of the bill, Senator Durbin, used the term “nonimmigrant visa” six times in the course of a short floor statement discussing the need for the prohibition. See id. This legislative history suggests that Congress drafted section 922(g)(5)(B) to apply to nonimmigrants admitted under a visa for the simple reason that it was that category of nonimmigrant aliens Congress had in mind in enacting the bill. 179 35 Op. O.L.C. 171 (2011) This argument rests not on the legislative history of the Gun Control Act, but on the history of a subsequently enacted statute. Like broad statements from individual members of Congress, such evidence provides only limited support for a statutory reading that is inconsistent with the text. The history of later-enacted statutes generally does not provide reliable evidence of the intent of the Congress that enacted an earlier provision. See Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 840 (1988) (“The views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.”) (internal quotation marks omitted). For these reasons, we do not believe the legislative history of the explosives statute sheds light on the meaning of section 922(g)(5)(B). III. You also have asked us what actions ATF would be legally required to take with respect to past or pending criminal cases in the event that section 922(g)(5)(B) does not apply to all nonimmigrant aliens. See ATF Memorandum at 5. The necessary implication of our conclusion here is that section 922(g)(5)(B) does not authorize future or pending investigations and prosecutions predicated on the view that the statute applies to all nonimmigrant aliens, regardless of visa status. Although we are not aware of any legal obligations ATF or the Department might have to seek the vacatur of any past criminal convictions, we note that the Criminal Division possesses substantial expertise on the relevant legal rules and Department practices in such circumstances. VIRGINIA A. SEITZ Assistant Attorney General Office of Legal Counsel 180

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Severance Agreement Between a Prospective Federal Appointee and His Law Firm S ev eran ce a rra n g em en ts b etw een a p ro sp e c tiv e a p p o in te e to federal office an d his law firm d o n o t result in an unlaw ful su p p lem en tatio n o f his federal sa lary in v iolation o f 18 U .S.C . § 209, n o tw ith sta n d in g th e fact th a t th ey d e v ia te in ce rta in resp ec ts from the term s o f th e law firm ’s p a rtn ersh ip ag reem en t. May 7, 1980 MEMORANDUM OPINION FOR TH E DEPUTY COUNSEL TO TH E PR ESID EN T This is in response to your request of our review of the withdrawal agreement entered into by Mr. A, a nominee to federal office, and the law firm of which he is a partner, Firm X. More particularly, you ask whether the agreement is consistent with the federal conflict of interest laws, including 18 U.S.C. §209. That statute in general prevents an officer or employee of the Executive Branch from receiving, or anyone from paying him, any salary or supplementation of salary for his serv­ ices to the government. Article VIII of the Firm X partnership agreement, provides for retirement, with a cash benefit payable in 60 monthly installments, for a partner who leaves the firm under certain conditions. Mr. A is eligible for retirement, which under the agreement would terminate his interest in the partnership. A technique for less than complete severance from the firm is provided by Article X III-2 of the agreement. It authorizes a temporary withdrawal of a partner for a period of no longer than IS months, subject to such terms and conditions as a majority of the other partners may specify. A temporary withdrawal does not termi­ nate a partner’s interest and he remains a member of the firm. You will recall that Mr. A informed us at our meeting with him that his firm was agreeable to his choice of departure under either Article V III or Arti­ cle XIII-2 and would approve the same financial arrangements under either option. Mr. A chose retirement under Article VIII and the withdrawal agreement was drawn accordingly. The withdrawal agreement will come into force on the day of Mr. A’s confirmation by the Senate. It provides for variations from the Firm X partnership agreement in connection with his capital account and the payment of his retirement benefits. Under Article VIII-3(a) and 605 VII-2(a) and (d) of the latter document, the capital account would be paid within 90 days after separation and the monthly retirement pay­ ments would commence at the end of the month following his retire­ ment. However, the withdrawal agreement provides for the firm to defer liquidation of the capital account until Mr. A requests it and to defer initiation of the retirement installments for 24 months after his separation from Firm X, unless he is readmitted to membership before then or if the 24-month period is extended by mutual consent. It is appropriate to consider first the element of intent on the part of Firm X and Mr. A. If the firm and he went beyond the provisions of Articles VIII and VII-2(a) and (d) with a view to providing something of value to him as a supplement to his federal salary, then § 209(a) would be a bar to his filling that office and our discussion would end at this point. However, there is nothing in the circumstances here to suggest that the firm was motivated by anything but a desire to accom­ modate Mr. A in recognition of his years of membership in it, or that he had in mind obtaining from the firm a subsidy of his employment by the government. We have no difficulty in ruling out both possibilities. See 41 Op. A tt’y Gen. 217, 221 (1955). Remaining for consideration in relation to § 209(a) is the question whether the withdrawal agreement is per se inconsistent with Mr. A ’s taking and remaining in office. Had that agreement followed the terms of the partnership compact, there would be no doubt that any benefits that might flow from it to Mr. A would fall within the exemption from § 209(a) granted by § 209(b) with respect to a “bona fide . . . retire­ ment . . . plan maintained by a former employer.” However, the de­ scribed variations raise the question whether the withdrawal agreement itself bestows on Mr. A a form of “contribution to or supplementation of salary, as compensation for his services as an officer” of the federal government that is not waived by § 209(b). The deferral of the payout of Mr. A ’s capital account will provide no significant financial benefit to him that we are aware of. On the other hand, he has stated that he requested the temporary deferment of the retirement payments in order to reduce the amount of income tax liability they would otherwise generate. This Office has generally viewed severance arrangements that minimize a recipient’s tax liability as not cutting across the prohibition o f § 209(a). Nevertheless, for the reasons set forth below, we do not find it necessary to pass on the agreed variations from Firm X’s retirement program in that context. It appears that if Mr. A and his firm had determined that he should undertake his projected government service while remaining a member of the firm under Article X III-2 of its governing instrument, in addition to forgoing his share of profits during his absence, he would not receive the return of his capital or any retirement payments. Thus, he would be in the same position as the withdrawal agreement calls for but 606 would have avoided the question under consideration here. As a practi­ cal matter, however, temporary withdrawal under Article XIII-2 was and is not open to him as a means of avoiding the possible impact of § 209(a). That is so because, as you informed him at our meeting, White House policy prevents a partner of a law firm from serving the govern­ ment under a presidential appointment to a full-time post unless he withdraws from the firm. That condition would not be met by the mere temporary suspension of Mr. A under Article XIII-2. It would be anomalous to conclude on the one hand that § 209(a) stands in the way of the financial arrangement worked out be­ tween Mr. A and his firm because it deviates to some extent from certain provisions of the partnership agreement, and to conclude on the other hand that the same financial arrangement under other provisions of the partnership agreement would comport with § 209(a). Because the White House policy that has intervened to prevent resort to the latter provisions is not based on any prohibition of § 209(a), we do not believe that any purpose of the statute would be furthered by reading it to require this formalistic stalemate and the consequent loss of Mr. A’s services to the government. In short, we are of the opinion that imple­ mentation of the executed withdrawal agreement, just like implementa­ tion of a similar agreement drawn under Article XIII-2, would not contravene § 209(a). The withdrawal agreement need not be examined in the light of any of § 209’s companion conflict of interest statutes except 18 U.S.C. § 208, which prohibits a federal employee from participating in a matter for the government in which, to his knowledge, “he, his . . . partner . . . or any person or organization with whom he is negotiating or has any arrangement concerning prospective employment, has a financial inter­ est. . . .” The term “financial interest” does not extend to the credi­ tor’s claim against his firm that Mr. A will have when the withdrawal agreement comes into force. Nevertheless, in order to avoid adverse appearances, Mr. A should recuse himself from any matter which may come before him as an official of the government in which Firm X appears as counsel or otherwise has a financial interest. L eo n U lm an Deputy Assistant Attorney General Office o f Legal Counsel 607

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Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization T h e P re sid e n t’s in h eren t, co n stitu tio n al a u th o rity as C o m m an d er-in -C h ie f, his b ro a d fo r­ eign p o licy p o w ers, and his d u ty to take c a re th a t th e law s be faithfully ex ecu ted g en erally e m p o w e r him to d e p lo y th e arm ed forces a b ro ad w ith o u t a d e c la ra tio n o f w a r by C o n g ress o r o th e r co n g ressio n al a u th o rizatio n . A histo rical p a tte rn o f p re sid e n ­ tial initiativ e an d co n g ressio n al acq u iescen ce in em e rg e n c y situ atio n s callin g fo r im m e­ d iate actio n , in clu d in g situ atio n s in v o lv in g rescu e an d retaliatio n , co n firm this in h eren t p o w er, and th e c o u rts h av e g e n e ra lly d ec lin e d to re v ie w its use. T h e W ar P o w e rs R eso lu tio n g e n e ra lly p re c lu d e s presidential relian ce on sta tu to ry a u th o r ­ ity fo r m ilitary actio n s cle a rly in v o lv in g hostilities, unless a sta tu te expressly au th o rizes su ch actions, an d reg u lates th e P re sid e n t’s use o f his c o n stitu tio n a l p o w e rs in this reg ard . In p a rtic u la r, it in tro d u c e s c o n su lta tio n an d re p o rtin g req u irem en ts in c o n n e c ­ tion w ith any use o f th e arm e d forces, an d req u ires th e term in a tio n o f su ch use w ithin 60 d ay s o r w h e n e v e r C o n g ress so d irects. T h e term "U n ite d S tates A rm e d F o rc e s ” in th e W a r P o w e rs R e so lu tio n d o es n o t include m ilitary p erso n n el d etailed to an d u n d e r th e c o n tro l o f th e C e n tra l In tellig en c e A g en cy . [In an o p in io n issued on O c to b e r 26, 1983, pu b lish ed as an ap p en d ix to this o p in io n , this c o n c lu sio n is reco n sid e re d an d rev e rse d ] T h e term "h o stilities" in th e W ar P o w e rs R e so lu tio n d o es n ot in clu d e sp o ra d ic m ilitary o r p aram ilita ry atta c k s o n o u r arm ed fo rces sta tio n ed ab ro ad ; fu rth e rm o re , its a p p lic a ­ bility req u ires an a c tiv e d ecision to p la c e fo rces in a h o stile situ atio n ra th e r th a n th eir sim ply actin g in self-defense. T h e req u irem en t o f co n su lta tio n in the W a r P o w e rs R e so lu tio n is n ot on its face u n c o n sti­ tu tio n al, th o u g h it m ay, if stric tly c o n stru e d , raise c o n stitu tio n al questions. T h e p ro v isio n in th e W a r P o w e rs R e so lu tio n p erm ittin g C o n g re ss to req u ire rem o v al o f o u r arm ed fo rces in p a rtic u la r cases by passage o f a c o n c u rre n t re so lu tio n n ot p resen ted to th e P resid en t is a prima facie v io latio n o f A rtic le I, § 7 o f th e C o n stitu tio n . February 12, 1980 MEMORANDUM OPINION FOR TH E ATTORNEY G E N ER A L This responds to your request for our review of certain questions regarding the effect of the War Powers Resolution on the President’s power to use military force without special congressional authorization and related issues. We have considered the President’s existing power to employ the armed forces in any of three distinct kinds of operations: (1) deployment abroad at some risk of engagement—for example, the current presence of the fleet in the Persian G ulf region; (2) a military expedition to rescue the hostages or to retaliate against Iran if the hostages are harmed; (3) an attempt to repel an assault that 185 threatens our vital interests in that region. We believe that the President has constitutional authority to order all of the foregoing operations. We also conclude that the War Powers Resolution, 50 U.S.C. §§ 1541-1548, has neither the purpose nor the effect of modifying the President’s power in this regard. The Resolution does, however, impose procedural requirements of consultation and reporting on certain presi­ dential actions, which we summarize. The Resolution also provides for the termination of the use of the armed forces in hostilities within 60 days or sooner if directed by a concurrent resolution of Congress. We believe that Congress may terminate presidentially initiated hostilities through the enactment of legislation, but that it cannot do so by means of a legislative veto device such as a concurrent resolution. I. The President’s Constitutional Authority to Employ the Armed Forces The centrally relevant constitutional provisions are Article II, § 2, which declares that “the President shall be Commander in Chief of the Army and Navy of the United States,” and Article I, § 8, which grants Congress the power “To declare W ar.” Early in our constitutional history, it perhaps could have been successfully argued that the Fram­ ers intended to confine the President to directing the military forces in wars declared by Congress.1 Even then, however, it was clear that the Framers contemplated that the President might use force to repel sudden invasions or rebellions without first seeking congressional ap­ proval. 2 In addition to the Commander-in-Chief Clause, the President’s broad foreign policy powers support deployment of the armed forces abroad.3 The President also derives authority from his duty to “take Care that the Laws be faithfully executed,” 4 for both treaties and customary international law are part of our law and Presidents have repeatedly asserted authority to enforce our international obligations 5 even when Congress has not enacted implementing legislation. 1H am ilton, in T h e Federalist No. 69, disparaged the P resident’s pow er as that o f "first G eneral and A dm iral’' o f the N ation, co n trastin g it to that o f the British king, w ho could declare w ar and raise and regulate armies. 2See M. Farrand, 2 T h e R ecords o f the F ed eral C onvention o f 1787, 318-19 (1911). O ther presidential actions, such as pro tectin g A m erican lives and pro p erty abroad and defending our allies, w ere not d irectly considered by the Fram ers. T his is understandable: the m ilitary needs o f the 18th centu ry probably did not require constitutional au th o rity for im m ediate presidential action in case of an attack on an ally. 3See generally United States v. Curtiss- Wright Export Corp., 299 U.S. 304 (1936). 4See In re Neagle, 135 U.S. 1 (1890) (broad view o f inherent presidential pow er to enforce constitutional as well as statu to ry provisions). 5 It should be observed, how ever, that treaties may not modify the basic allocation o f pow ers in our constitutional schem e. R eid v. Covert, 354 U.S. 1 (1957). M utual defense treaties are generally not self­ executing regarding the internal processes o f the signatory pow ers. Similarly, custom ary international law, w hich includes au th o rity for reasonable reprisals in response to another c o u n try ’s breach of international obligation, probably does not confer au th o rity on the President beyond the w arrant of necessity. 186 We believe that the substantive constitutional limits on the exercise of these inherent powers by the President are, at any particular time, a function of historical practice and the political relationship between the President and Congress. Our history is replete with instances of presi­ dential uses of military force abroad in the absence of prior congres­ sional approval. This pattern of presidential initiative and congressional acquiescence may be said to reflect the implicit advantage held by the executive over the legislature under our constitutional scheme in situa­ tions calling for immediate action. Thus, constitutional practice over two centuries, supported by the nature of the functions exercised and by the few legal benchmarks that exist, evidences the existence of broad constitutional pow er.6 The power to deploy troops abroad without the initiation of hostil­ ities is the most clearly established exercise of the President’s general power as a matter of historical practice. Examples of such actions in the past include the use of the Navy to “open up” Japan, and President Johnson’s introduction of the armed forces into the Dominican Repub­ lic in 1965 to forestall revolution. Operations of rescue and retaliation have also been ordered by the President without congressional authorization even when they involved hostilities. Presidents have repeatedly employed troops abroad in de­ fense of American lives and property. A famous early example is President Jefferson’s use of the Navy to suppress the Barbary pirates. Other instances abound, including protection of American citizens in China during the Boxer Rebellion in 1900, and the use of troops in 1916 to pursue Pancho Villa across the Mexican border. Recent examples include the Danang sealift during the collapse of Vietnam’s defenses (1975); the evacuation of Phnom Penh (Cambodia, 1975); the evacu­ ation of Saigon (1975); the M ayaguez incident (1975); evacuation of civilians during the civil war in Lebanon (1976); and the dispatch of forces to aid American victims in Guyana (1978). This history reveals that purposes of protecting American lives and property and retaliating against those causing injury to them are often intertwined. In D urand v. Hollins, 8 F. Cas. 111 (No. 4186) (C.C.S.D.N.Y. 1860), the court upheld the legality of the bombardment of a Nicaraguan town which was ordered because the local authorities refused to pay reparations for an attack by a mob on the United States Consul. Policies of deterrence seem to have eroded any clear distinc­ tion between cases of rescue and retaliation. Thus, there is much historical support for the power of the President to deploy troops without initiating hostilities and to direct rescue and retaliation operations even where hostilities are a certainty. There is 6 In o th er contexts, the Suprem e C ourt has recognized the validity o f longstanding presidential practices never expressly authorized by Congress but arguably ratified by its silence. See United States v. Midwest O il Co., 236 U.S. 459 (1915) (w ithdraw al o f public lands from private acquisition). 187 precedent as well for the commitment of United States armed forces, without prior congressional approval or declaration of war, to aid an ally in repelling an armed invasion, in President Truman’s response to the North Korean invasion of South K orea.7 But clearly such a re­ sponse cannot be sustained over time without the acquiescence, indeed the approval, of Congress, for it is Congress that must appropriate the money to fight a war or a police action. While Presidents have exer­ cised their authority to introduce troops into Korea and Vietnam 8 without prior congressional authorization, those troops remained only with the approval of Congress. II. Judicial Review of the President’s Exercise of Constitutional Power In the only major case dealing with the role of the courts with regard to this general subject, the Supreme Court upheld presidential power to act in an emergency without prior congressional authority. In the Prize Cases, 67 U.S. 635 (1863), the Court upheld President Lincoln’s blockade of Southern ports following the attack on Fort Sumter. The Court thought that particular uses of inherent executive power to repel invasion or rebellion were “political questions” not subject to judicial review: “This Court must be governed by the deci­ sions and acts of the political department of the Government to which this power was entrusted.” (Id. at 670). The Court’s unwillingness to review the need for presidential action in a particular instance in the Prize Cases or since has left the field to the President and Congress; much has depended on presidential restraint in responding to provoca­ tion, and on congressional willingness to support his initiatives by raising and funding armies. More recently, the courts have applied the rationale of the Prize Cases to avoid judicial review of the constitutionality of the President’s actions with regard to the Vietnam conflict.9 Although the Supreme Court did not hear argument in the case, we believe some significance may be attached to the Court’s summary affirmance of a three-judge court’s decision that the constitutionality of the government’s involve­ ment in that conflict was a political question and thus unsuitable for judicial resolution. Atlee v. Laird, 347 F. Supp. 689 (E.D.Pa. 1972), a ffd , 411 U.S. 911 (1973). 1 A lth o u g h support for this intro d u ctio n o f o u r arm ed forces into a “ h o t” w ar could be found in the U .N . C h arte r and a S ecurity C ouncil resolution, th e fact rem ains that this com m itm ent o f substantial forces occu rred w ith o u t congressional approval. 8 T h e substantia] A m erican m ilitary presence in V ietnam before the T onkin G u lf R esolution was know n to and supported by C ongress. 9See, e.g., Mora v. M cN am ara, 387 F.2d 862 (D .C . C ir.), cert, denied 389 U.S. 934 (1967); M cArthur v. Clifford, 393 U.S. 1002 (1968); Massachusetts v. Laird, 400 U.S. 886 (1970). 188 III. The President’s Statutory Powers Congress has restricted the President’s ability to rely on statutory authority for the use of armed force abroad by its provision in the War Powers Resolution that authority to introduce the armed forces into hostilities or into situations “wherein involvement in hostilities is clearly indicated by the circumstances” is not to be inferred from any statutory provision not specifically authorizing the use of troops and referring to the War Powers Resolution. 50 U.S.C. § 1547. Thus, the President may not rely on statutory authority for military actions clearly involving hostilities unless the statute expressly authorizes such actions. Nevertheless, it may be possible for the President to draw authority for some actions not involving the use of the armed forces in actual or imminent hostilities from the provisions of an 1868 statute, now 22 U.S.C. § 1732: Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign gov­ ernment, it shall be the duty of the President forthwith to demand of that government the reasons of such imprison­ ment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be communi­ cated by the President to Congress. We are unaware of any instances in which this provision has been invoked. It was passed in response to a dispute with Great Britain after the Civil War, in which that nation was trying its former subjects, who had become naturalized Americans, for treason. The House version of the bill, which would have authorized the President to suspend all commerce with the offending nation and to round up its citizens found in this country as hostages, was replaced by the present language which was in the Senate bill. Cong. Globe, 40th Cong., 2d Sess. 4205, 4445-46 (1868). It is not clear whether this change was meant to restrict the President to measures less drastic than those specified in the House bill. It is also not clear what Congress meant by the phrase “not amounting to acts of war.” At least Congress did not seem to be attempting to limit the President’s constitutional powers. 189 IV. The War Powers Resolution The War Powers Resolution, 50 U.S.C. §§ 1541-48, begins with a statement of purpose and policy that seems designed to limit presiden­ tial use of armed forces in hostilities to situations involving a declara­ tion of war, specific statutory authorization, or an attack on the United States, its possessions, or its armed forces. This policy statement, how­ ever, is not to be viewed as limiting presidential action in any substan­ tive manner. That much is clear from the conference report, which states that subsequent portions of the Resolution are not dependent on the policy statement,10 and from its construction by the President since its enactment. The important provisions of the Resolution concern consultation and reporting requirements and termination of the involvement of the armed forces in hostilities. The Resolution requires that the President consult with Congress “in every possible instance” before introducing the armed forces into hostilities, and regularly thereafter. 50 U.S.C. § 1542. The reporting requirements apply not only when hostilities are taking place or are imminent, but also when armed forces are sent to a foreign country equipped for combat. 50 U.S.C. § 1543(a)(2), (3). The report must be filed within 48 hours from the time that they are introduced into the area triggering the requirement, and not from the time that the decision to dispatch them is m ade.11 The report must include: (A) The circumstances necessitating the introduction of United States Armed Forces; (B) the constitutional and legislative authority under which such introduction took place; and (C) the estimated scope and duration of the hostilities or involvement. 50 U.S.C. § 1543(a)(3). Reports which have been filed in the past have been brief and to the point. The reference to legal authority has been one sentence, referring to the President’s constitutional power as Commander-in-Chief and Chief Executive.12 i0See H .R . Rep. No. 547, 93d C ong., 1st Sess. 8 (1973). Section 1547(d)(1) states that the Resolution is not intended to alter the constitutional au th o rity o f the President. Fisher. A Political C ontext fo r Legislative Vetos, 93 Political Science Q uarterly 241, 246 (1978), explains that because the tw o H ouses could not agree on the P resident’s responsibilities under A rticle II, C ongress fell back on purely procedural controls. 11See generally Franck, A fter the Fall: The N ew Procedural Framework fo r Congressional Control over the War Power. 71 Am. J. In l’l L. 605, 615 (1977). 12See War Powers: A Test o f Compliance Relative to the Danang Sealift, the Evacuation o f Phnom Penh, the Evacuation o f Saigon, and the Mayaguez Incident, Hearings before the Subcom mittee on Int'l Security and Scientific Affairs o f the House Comm, on In t'l Relations, 94th C ong., 1st Sess. 75 (M aya­ guez) (1975) (hereafter War Powers: A Test o f Compliance): The War Powers Resolution. Relevant Documents. Correspondence, Reports, Subcom m . on In t’l Security and Scientific A ffairs, H ouse Comm, on In t’l Relations, 94th C ong., 1st Sess. 40 (D anang); 42 (Phnom Penh); 45 (Mayaguez) (Com m . Print 1976). 190 The Resolution requires the President to terminate any use of the armed forces in hostilities after 60 days unless Congress has authorized his action.13 It also requires termination whenever Congress so directs by concurrent resolution.14 As enacted, the ambiguous language of the Resolution raises several issues of practical importance regarding the scope of its coverage as well as questions of constitutional magnitude. We shall discuss first several issues related to the scope of its coverage and then discuss several constitutional issues it raises. A threshold question is whether the Resolution’s use of the term “United States Armed Forces” was intended to reach deployment or use by the President of personnel other than members of the Army, Air Force, Marine Corps, Navy, or Coast Guard functioning under the control of the Secretary of Defense and the Joint Chiefs of Staff. For example, does it extend to military personnel detailed to and under the control of the Central Intelligence Agency (CIA), CIA agents them­ selves, or other individuals contracting to perform services for the CIA or the Department of Defense? We believe that none of these personnel are covered by the Resolution.* The provision most closely on point is § 1547(c), which defines the term “introduction of United States Armed Forces” to include “the assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country” in actual or imminent hostilities. This provision appears to be intended to identify activities subject to the Resolution, and not the identity of persons constituting “members of such armed forces.” It could be argued that anyone officially a member of the armed forces of this country, although on temporary detail to a civilian agency, is within this provision and therefore cov­ ered by the Resolution. The legislative history of the Resolution, how ­ ever, persuades us to take a contrary view. In the Senate, where § 1547(c) originated, Senator Eagleton introduced the following amendment: Any person employed by, under contract to, or under the direction of any department or agency of the United States Government who is either (a) actively engaged in hostilities in any foreign country; or (b) advising any regular or irregular military forces engaged in hostilities in any foreign country shall be deemed to be a member of 13 50 U.S.C. § 1544(b). T h e re are exceptions to the 60-day period if C ongress extends the period or is unable to meet, o r if the President certifies th at m ore time is needed to extract the forces. M50 U .S .C § 1544(c). • N o t e : This conclusion respecting the applicability o f the W ar Pow ers R esolution to m ilitary personnel detailed to the C entral Intelligence A gency w as reconsidered and reversed in an opinion dated O cto b er 26. 1983. w hich appears as an appendix to this opinion at p. 197 infra. Ed. 191 the Armed Forces of the United States for the purposes of this Act. He explained that it was intended to cover CIA paramilitary oper­ ations involving persons who might be military officers under contract to the CIA. 119 Cong. Rec. 25,079-83 (1973). He recognized that without this amendment the Resolution as drafted would not cover the activities of such personnel, and argued that it should, citing CIA activities in Laos as leading to America’s Indo-China involvement. Senators Muskie and Javits opposed the amendment, principally for reasons of committee jurisdiction. They argued that if the Resolution were extended to cover the CIA, its chances to escape presidential veto might be jeopardized, and that the matter should be considered pursu­ ant to proposed legislation to govern the CIA. Senator Javits also argued that the amendment was overbroad, since it would include foreign nationals contracting with the CIA. He argued that CIA activi­ ties should not be within the Resolution, because the CIA lacks the appreciable armed force that can commit the Nation to war. Senator Fulbright came to Senator Eagleton’s defense, arguing that the amendment, applying to the CIA and D O D civilians alike, would avoid circumvention of the Resolution. Id. at 25,083-84. No one suggested that the Resolution would apply to anyone other than military person­ nel under Department of Defense control unless the amendment passed. The amendment was defeated.15 In the House of Representatives, Congressman Badillo asked Con­ gressman Zablocki, the manager of the bill, whether he would support in the conference committee a Senate provision that would include the CIA within the bill when it carried out military functions. Congressman Zablocki replied that he would support the Eagleton amendment if it passed the Senate. 119 Cong. Rec. 24,697 (1973). Another provision o f the Resolution that had its source in the House is consistent with the view that the Resolution was not intended to apply to CIA paramilitary activities. The reporting requirements of § 1543(a)(2) apply when the armed forces are introduced “into the territory, air space or waters of a foreign nation, while equipped for combat . . . .” It is clear from H.R. Rep. No. 287, 93d Cong., 1st Sess. 8 (1973), that this provision was using the term “armed forces” to mean significant bodies of military personnel: A report would be required any time combat military forces were sent to another nation to alter or preserve the existing political status quo or to make the U.S. presence felt. Thus, for example, the dispatch o f Marines to Thai­ 15 It is an accepted canon o f statu to ry con stru ctio n that the rejection o f an am endm ent indicates that the bill is not m eant to include the provisions in the failed am endm ent. See, e.g., Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 306 (1933). 192 land in 1962 and the quarantine of Cuba in the same year would have required Presidential reports. A companion provision reinforces the view that the Resolution applies only to significant bodies of military personnel. The House report goes on to discuss § 1543(a)(3), which requires a report when the number of armed forces equipped for combat is substantially enlarged in a foreign nation. For examples of substantial increases in combat troops, the report gives the dispatch of 25% more troops to an existing station, or President Kennedy’s increase in U.S. military advisers in Vietnam from 700 to 16,000 in 1962. The second threshold question raised by the War Powers Resolution regards the meaning of the word “hostilities” as used in § 1543(a)(1). In the 1975 hearings on executive compliance with the Resolution, Chair­ man Zablocki of the Subcommittee on International Security and Scien­ tific Affairs drew the Legal Adviser’s attention to a discussion of “hostilities” in the House report on the Resolution: The word hostilities was substituted for the phrase arm ed conflict during the subcommittee drafting process because it was considered to be somewhat broader in scope. In addition to a situation in which fighting actually has begun, hostilities also encompasses a state of confron­ tation in which no shots have been fired but where there is a clear and present danger of armed conflict. “Im m inent hostilities" denotes a situation in which there is a clear potential either for such a state of confrontation or for actual armed conflict. H.R. Rep. No. 287, 93d Cong., 1st Sess. 7 (1973) (emphasis added). Chairman Zablocki then requested the views of the Departments of State and Defense regarding the Executive’s interpretation of the term “hostilities” in view of the language quoted above. Those Departments responded in a letter to the Chairman dated June 5, 1975, reprinted in War Powers: A Test o f Compliance at 38-40. After first noting that “hostilities” is “definable in a meaningful way only in the context of an actual set of facts,” the letter went on to state that, as applied by the Executive, the term included: a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces, and “imminent hostilities” was consid­ ered to mean a situation in which there is a serious risk from hostile fire to the safety of United States forces. In our view, neither term necessarily encompasses irregular or infrequent violence which may occur in a particular area. Id. at 39. 193 We agree that the term “hostilities” should not be read necessarily to include sporadic military or paramilitary attacks on our armed forces stationed abroad. Such situations do not generally involve the full military engagements with which the Resolution is primarily con­ cerned. For the same reason, we also believe that as a general matter the presence of our armed forces in a foreign country whose govern­ ment comes under attack by “guerrilla” operations would not trigger the reporting provisions of the War Powers Resolution unless our armed forces were assigned to “command, coordinate, participate in the movement of, or accompany” the forces of the host government in operations against such guerrilla operations.16 50 U.S.C. § 1547(c). Furthermore, if our armed forces otherwise lawfully stationed in a foreign country were fired upon and defended themselves, we doubt that such engagement in hostilities would be covered by the consulta­ tion and reporting provisions of the War Powers Resolution. The structure and thrust of those provisions is the “introduction” of our armed forces into such a situation and not the fact that those forces may be engaged in hostilities. It seems fair to read “introduction” to require an active decision to place forces in a hostile situation rather than their simply acting in self-defense.17 A final issue of statutory construction involves interpretation of the requirement for consultation with “Congress.” 18 As a practical matter, consultation with more than a select group of congressional leaders has never been attempted. The Legal Adviser of the State Department has argued for this Administration, correctly in our view, that there are practical limits to the consultation requirement; he has said that mean­ ingful consultations with “an appropriate group of congressional repre­ sentatives should be possible.” 19 During the M ayaguez incident about ten House and eleven Senate Members were contacted concerning the measures to be taken by the President.20 In requiring consultation in “every possible instance,” Congress meant to be firm yet flexible. H. R. Rep. No. 287, 93d Cong., 1st Sess. 6 (1973). The House report continued: The use of the word “every” reflects the committee’s belief that such consultation prior to the commitment of armed forces should be inclusive. In other words, it ,6W e believe that the definition o f "in troduction o f U nited States A rm ed Forces'* in § 1547(c) supports the proposition that mem bers o f the arm ed forces stationed in a foreign country for purposes o f training o r advising m ilitary forces o f the host governm ent are not generally to be view ed as subject to the W ar Pow ers Resolution. 17 In contrast, as passed by the Senate, the bill w ould have required a report w henever o u r arm ed forces are “engaged in hostilities." S. 440, 93d Cong., 1st Sess. § 4 , 119 C ong. Rec. 25,119 (1973). 18T his replaced an earlier version w hich m erely required consultation w ith the leadership and appropriate com m ittees o f C ongress. H. R. Conf. Rep. No. 547, 93d C ong., 1st Sess. 8 (1973); H. R. Rep. No. 287, 93d Cong., 1st Sess. 6 (1973). 19Statem ent o f State D epartm ent Legal A dviser H ansell before the Senate Foreign Relations C om m ittee, reprinted in State D epartm ent Bulletin, A ugust 29, 1977, at 291-92. 20T estim ony o f State D epartm ent Legal A dviser Leigh in War Powers: A Test o f Compliance at 78. 194 should apply to extraordinary and emergency circum­ stances—even when it is not possible to get formal con­ gressional approval in the form of a declaration of war or other specific authorization. At the same time, through use of the word “possible” it recognizes that a situation may be so dire, e.g., hostile missile attack underway, and require such instantaneous action that no prior consultation will be possible. The State Department Legal Adviser, again speaking for this Adminis­ tration, has pointed out the problem that exists in emergencies, noting that “[B]y their very nature some emergencies may preclude opportu­ nity for legislative debate prior to involvement of the Armed Forces in hostile or potentially hostile situations.” He recognized, however, that consultation may be had “in the great majority of cases.” 21 There may be constitutional considerations involved in the consulta­ tion requirement. When President Nixon vetoed the Resolution, he did not suggest that either the reporting or consultation requirements were unconstitutional. Department of State Bulletin, November 26, 1973, at 662-64. No Administration has taken the position that these require­ ments are unconstitutional on their face. Nevertheless, there may be applications which raise constitutional questions. This view was stated succinctly by State Department Legal Adviser Leigh: Section 3 of the War Powers Resolution has, in my view, been drafted so as not to hamper the President’s exercise of his constitutional authority. Thus, Section 3 leaves it to the President to determine precisely how consultation is to be carried out. In so doing the President may, I am sure, take into account the effect various possi­ ble modes of consultation may have upon the risk of a breach in security. Whether he could on security grounds alone dispense entirely with “consultation” when exercis­ ing an independent constitutional power, presents a ques­ tion of constitutional and legislative interpretation to which there is no easy answer. In my personal view, the resolution contemplates at least some consultation in every case irrespective of security considerations unless the President determines that such consultation is incon­ sistent with his constitutional obligation. In the latter event the President’s decision could not as a practical matter be challenged but he would have to be prepared to accept the political consequences of such action, which might be heavy. 21 Statem ent o f Legal A dviser Hansell, id. 195 War Powers: A Test o f Compliance at 100. Other constitutional issues raised by the Resolution concern the provisions terminating the use of our armed forces either through the passage of time (60 days) or the passage of a concurrent resolution. We believe that Congress may, as a general constitutional matter, place a 60-day limit on the use of our armed forces as required by the provisions of § 1544(b) of the Resolution. The Resolution gives the President the flexibility to extend that deadline for up to 30 days in cases of “unavoidable military necessity.” This flexibility is, we believe, sufficient under any scenarios we can hypothesize to preserve his con­ stitutional function as Commander-in-Chief. The practical effect of the 60-day limit is to shift the burden to the President to convince the Congress of the continuing need for the use of our armed forces abroad. We cannot say that placing that burden on the President un­ constitutionally intrudes upon his executive powers. Finally, Congress may regulate the President’s exercise of his inher­ ent powers by imposing limits by statute. We do not believe that Congress may, on a case-by-case basis, require the removal of our armed forces by passage of a concurrent resolution which is not submit­ ted to the President for his approval or disapproval pursuant to Article I, § 7 of the Constitution. Jo hn M. H arm on Assistant Attorney General Office o f Legal Counsel 196 A PPEND IX War Powers Resolution: Detailing of Military Personnel to the CIA October 26, 1983 MEM ORANDUM O PIN IO N FOR TH E DEPUTY ATTORNEY G E N ER A L This responds to your inquiry whether a Central Intelligence Agency (CIA) operation utilizing military equipment and military personnel detailed to the CIA would require compliance with the War Powers Resolution. In responding to this inquiry, this Office has found it necessary to re-examine and revise a broad conclusion expressed by this Office in its February 12, 1980 memorandum, the “Harmon Memoran­ dum,” 1 that “military personnel detailed to and under the control of the CIA . . .” would not be covered by the W ar Powers Resolution were they to be deployed into hostilities or a situation otherwise triggering that Resolution. The heart of the argument in the Harmon Memorandum is the essentially negative inference drawn from the Senate’s rejection of the so-called “Eagleton amendment,” 2 which is reprinted on page 8 of that memorandum. The Eagleton amendment would have supplemented § 8(c) o f the War Powers Resolution regarding the definition of the term “introduction of United States Armed Forces.” As enacted, § 8(c) now provides: For purposes of this chapter, the term “introduction of United States Armed Forces” includes the assignment of members of such armed forces to command, coordinate, 1M em orandum for the A ttorney G eneral entitled “ Presidential P ow er to Use the A rm ed Forces A broad W ithout S tatu to ry A u th o rizatio n " from Jo h n M. H arm on, A ssistant A tto rn e y G eneral, O ffice o f Legal C ounsel, Feb. 12, 1980. T h e occasion for this m em orandum w as planning relative to the holding by Iran o f A m erican hostages and a range o f potential A m erican responses to that situation including a possible rescue attem pt. T he m em orandum was general, how ever, and did not focus on a specific factual situation. Particularly, the H arm on M em orandum 's com m ents concerning a C IA operation involving detailed m ilitary personnel w as a part o f a general discussion and was not in response to a precise fact-specific question. 2 S enator Eagleton introduced several am endm ents to the W ar Pow ers Resolution. Som e w ere adopted. This particular am endm ent w as enum erated as am endm ent No. 366, and is set out in 119 C ong. R ec. 25,079 (1973). 197 participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities. 50 U.S.C. § 1547(c). Senator Eagleton urged adding the following sen­ tence: Any person employed by, under contract to, or under the direction of any department or agency of the United States Government who is either (a) actively engaged in hostilities in any foreign country; or (b) advising any regular or irregular military forces engaged in hostilities in any foreign country shall be deemed to be a member of the Armed Forces of the United States for the purposes of this Act. 119 Cong. Rec. 25,079 (1973). We observe at the outset that the Eagleton amendment on its face does not suggest that it deals with a situation in which uniformed personnel would be detailed to the CIA; indeed, what it would have done on its face was to provide that all government employees under the direction of any department or agency either engaged in hostilities in any foreign country or advising any regular or irregular military forces engaged in hostilities would be deemed to be a member of the armed forces for purposes of the War Powers Resolution. In other words, military or paramilitary activities by the CIA would have trig­ gered the War Powers Resolution irrespective of whether the activities were performed by military personnel, civilian employees, or persons under contract to or under the control of the CIA. The sentences in the Harmon memorandum that follow the quotation of the Eagleton amendment read as follows: He [Senator Eagleton] explained that it [his amendment] was intended to cover CIA paramilitary operations in­ volving persons who might be military officers under contract to the CIA. 119 Cong. Rec. 25079-83 (1973). He recognized that without this amendment the Resolution as drafted would not cover the activities of such personnel, and argued that it should, citing CIA activities in Laos as leading to America’s Indo-China involvement. We have carefully reviewed not only the remarks of Senator Eagleton contained in the cited pages of the Congressional Record, but also the full Senate debate on the Eagleton amendment. We have been unable to find a single remark made by Senator Eagleton or any other Senator that reasonably could be read to support the assertion con­ 198 tained in the sentences quoted above from the Harmon Memorandum. In fact, Senator Eagleton and the other Senators who spoke at length for or against the Eagleton amendment manifested an understanding that the debate revolved around the CIA ’s potential use of civilian personnel to conduct combat operations rather than situations in which the conduct of the same operations by military forces might occur. Senator Eagleton and his principal ally in the floor debate, Senator Fulbright, repeatedly expressed the view that failing to include activi­ ties which the CIA might conduct with civilian personnel was a major “loophole” which would allow Presidents to evade the War Powers Resolution. The whole point of the Eagleton amendment, which emerges with considerable clarity once the legislative history is exam­ ined closely, is that Senator Eagleton intended that civilian forces were to be treated the same as military forces for purposes of application of the War Powers Resolution: My amendment would circumscribe the President’s use of American civilian combatants in the same manner uni­ formed Armed Forces are circumscribed by S. 440 as presently drafted. It would, in other words, prevent a President from engaging American civilians, either directly or as advisers, in a hostile situation without the express consent of Congress. 119 Cong. Rec. 25,079 (1973) (emphasis added). Thus, Senator Eagleton spoke at considerable length about his concern that wars or lengthy and costly military engagements could be caused by CIA covert civilian operations. The discussion did not relate to covering, by this amend­ ment, the detailing of military personnel to the CIA. Furthermore, the record implies, albeit less strongly on this point, that CIA activities which actually used military personnel would be covered by the War Powers Resolution irrespective of the Eagleton amendment. The closest that Senator Eagleton himself comes to saying something similar to what was attributed to him by the Harmon Memorandum is in a paragraph that reads as follows: So military activities will be carried on by civilian em­ ployees of the Pentagon, because under the War Powers bill nothing prevents the Pentagon from hiring or con­ tracting with civilian employees, ex-m ilitary people per­ haps, but people that are called civilians. Id. at 25,083 (emphasis added). Senator Eagleton’s statements do not support the argument that the Eagleton amendment was an attempt to expand the War Powers Reso­ lution to embrace CIA activities using military personnel. When exam­ 199 ined in their full context, it was concern over any American involve­ ment in a military context which the Eagleton amendment was intended to address. He also said: unless we treat all Americans in military situations alike, whether they are wearing a green uniform, red-white-andblue or a seersucker suit with arms—what payroll you are on is really secondary; whether you get it from the Penta­ gon or whether you become a member of the Armed Forces, the end result is the same: Americans are exposed to the risk of war. And as they are exposed to the risk of war, the country, then makes a commitment to war. Id. at 25,080 (1973). In this same debate, Senator Javits, speaking in opposition to the Eagleton amendment, stated his understanding of the applicability of the War Powers Resolution to paramilitary activities conducted by the CIA as follows: Another important consideration is that there [is] outside the Armed Forces . . . no agency of the United States which has any appreciable armed forces power, not even the CIA. They [the CIA] might have some clandestine agents with rifles and pistols engaging in dirty tricks, but there is no capability of appreciable military action that would amount to war. Even in the Laotian war, the regular U.S. Armed Forces had to be called in to give air support. The minute com bat air support is required you have the A rm ed Forces, an d the [W ar Powers Resolution ] becomes operative. Id. at 25,082 (emphasis added). This debate over the Eagleton amendment stands rather clearly for the proposition that CIA civilian operations (at least most of them) were not embraced by the War Powers Resolution as ultimately passed by the Congress unadorned with the Eagleton amendment. We do not believe the negative inference to be drawn from the defeat of the Eagleton amendment can be stretched further than to confirm that CIA civilian operations are not embraced by the W ar Powers Resolution. In summary, we believe the legislative history relied on in the Harmon Memorandum supports the proposition that Congress assumed that the C IA ’s use of civilian or ex-military personnel would not trigger the War Powers Resolution. We do not believe that that legislative history may be relied upon for the conclusion that the involvement of 200 military personnel, if temporarily detailed to the CIA and under civilian control, would remain outside the War Powers Resolution. T heodore B. O lson Assistant Attorney General Office o f L egal Counsel

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Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization T h e P re sid e n t’s in h eren t, co n stitu tio n al a u th o rity as C o m m an d er-in -C h ie f, his b ro a d fo r­ eign p o licy p o w ers, and his d u ty to take c a re th a t th e law s be faithfully ex ecu ted g en erally e m p o w e r him to d e p lo y th e arm ed forces a b ro ad w ith o u t a d e c la ra tio n o f w a r by C o n g ress o r o th e r co n g ressio n al a u th o rizatio n . A histo rical p a tte rn o f p re sid e n ­ tial initiativ e an d co n g ressio n al acq u iescen ce in em e rg e n c y situ atio n s callin g fo r im m e­ d iate actio n , in clu d in g situ atio n s in v o lv in g rescu e an d retaliatio n , co n firm this in h eren t p o w er, and th e c o u rts h av e g e n e ra lly d ec lin e d to re v ie w its use. T h e W ar P o w e rs R eso lu tio n g e n e ra lly p re c lu d e s presidential relian ce on sta tu to ry a u th o r ­ ity fo r m ilitary actio n s cle a rly in v o lv in g hostilities, unless a sta tu te expressly au th o rizes su ch actions, an d reg u lates th e P re sid e n t’s use o f his c o n stitu tio n a l p o w e rs in this reg ard . In p a rtic u la r, it in tro d u c e s c o n su lta tio n an d re p o rtin g req u irem en ts in c o n n e c ­ tion w ith any use o f th e arm e d forces, an d req u ires th e term in a tio n o f su ch use w ithin 60 d ay s o r w h e n e v e r C o n g ress so d irects. T h e term "U n ite d S tates A rm e d F o rc e s ” in th e W a r P o w e rs R e so lu tio n d o es n o t include m ilitary p erso n n el d etailed to an d u n d e r th e c o n tro l o f th e C e n tra l In tellig en c e A g en cy . [In an o p in io n issued on O c to b e r 26, 1983, pu b lish ed as an ap p en d ix to this o p in io n , this c o n c lu sio n is reco n sid e re d an d rev e rse d ] T h e term "h o stilities" in th e W ar P o w e rs R e so lu tio n d o es n ot in clu d e sp o ra d ic m ilitary o r p aram ilita ry atta c k s o n o u r arm ed fo rces sta tio n ed ab ro ad ; fu rth e rm o re , its a p p lic a ­ bility req u ires an a c tiv e d ecision to p la c e fo rces in a h o stile situ atio n ra th e r th a n th eir sim ply actin g in self-defense. T h e req u irem en t o f co n su lta tio n in the W a r P o w e rs R e so lu tio n is n ot on its face u n c o n sti­ tu tio n al, th o u g h it m ay, if stric tly c o n stru e d , raise c o n stitu tio n al questions. T h e p ro v isio n in th e W a r P o w e rs R e so lu tio n p erm ittin g C o n g re ss to req u ire rem o v al o f o u r arm ed fo rces in p a rtic u la r cases by passage o f a c o n c u rre n t re so lu tio n n ot p resen ted to th e P resid en t is a prima facie v io latio n o f A rtic le I, § 7 o f th e C o n stitu tio n . February 12, 1980 MEMORANDUM OPINION FOR TH E ATTORNEY G E N ER A L This responds to your request for our review of certain questions regarding the effect of the War Powers Resolution on the President’s power to use military force without special congressional authorization and related issues. We have considered the President’s existing power to employ the armed forces in any of three distinct kinds of operations: (1) deployment abroad at some risk of engagement—for example, the current presence of the fleet in the Persian G ulf region; (2) a military expedition to rescue the hostages or to retaliate against Iran if the hostages are harmed; (3) an attempt to repel an assault that 185 threatens our vital interests in that region. We believe that the President has constitutional authority to order all of the foregoing operations. We also conclude that the War Powers Resolution, 50 U.S.C. §§ 1541-1548, has neither the purpose nor the effect of modifying the President’s power in this regard. The Resolution does, however, impose procedural requirements of consultation and reporting on certain presi­ dential actions, which we summarize. The Resolution also provides for the termination of the use of the armed forces in hostilities within 60 days or sooner if directed by a concurrent resolution of Congress. We believe that Congress may terminate presidentially initiated hostilities through the enactment of legislation, but that it cannot do so by means of a legislative veto device such as a concurrent resolution. I. The President’s Constitutional Authority to Employ the Armed Forces The centrally relevant constitutional provisions are Article II, § 2, which declares that “the President shall be Commander in Chief of the Army and Navy of the United States,” and Article I, § 8, which grants Congress the power “To declare W ar.” Early in our constitutional history, it perhaps could have been successfully argued that the Fram­ ers intended to confine the President to directing the military forces in wars declared by Congress.1 Even then, however, it was clear that the Framers contemplated that the President might use force to repel sudden invasions or rebellions without first seeking congressional ap­ proval. 2 In addition to the Commander-in-Chief Clause, the President’s broad foreign policy powers support deployment of the armed forces abroad.3 The President also derives authority from his duty to “take Care that the Laws be faithfully executed,” 4 for both treaties and customary international law are part of our law and Presidents have repeatedly asserted authority to enforce our international obligations 5 even when Congress has not enacted implementing legislation. 1H am ilton, in T h e Federalist No. 69, disparaged the P resident’s pow er as that o f "first G eneral and A dm iral’' o f the N ation, co n trastin g it to that o f the British king, w ho could declare w ar and raise and regulate armies. 2See M. Farrand, 2 T h e R ecords o f the F ed eral C onvention o f 1787, 318-19 (1911). O ther presidential actions, such as pro tectin g A m erican lives and pro p erty abroad and defending our allies, w ere not d irectly considered by the Fram ers. T his is understandable: the m ilitary needs o f the 18th centu ry probably did not require constitutional au th o rity for im m ediate presidential action in case of an attack on an ally. 3See generally United States v. Curtiss- Wright Export Corp., 299 U.S. 304 (1936). 4See In re Neagle, 135 U.S. 1 (1890) (broad view o f inherent presidential pow er to enforce constitutional as well as statu to ry provisions). 5 It should be observed, how ever, that treaties may not modify the basic allocation o f pow ers in our constitutional schem e. R eid v. Covert, 354 U.S. 1 (1957). M utual defense treaties are generally not self­ executing regarding the internal processes o f the signatory pow ers. Similarly, custom ary international law, w hich includes au th o rity for reasonable reprisals in response to another c o u n try ’s breach of international obligation, probably does not confer au th o rity on the President beyond the w arrant of necessity. 186 We believe that the substantive constitutional limits on the exercise of these inherent powers by the President are, at any particular time, a function of historical practice and the political relationship between the President and Congress. Our history is replete with instances of presi­ dential uses of military force abroad in the absence of prior congres­ sional approval. This pattern of presidential initiative and congressional acquiescence may be said to reflect the implicit advantage held by the executive over the legislature under our constitutional scheme in situa­ tions calling for immediate action. Thus, constitutional practice over two centuries, supported by the nature of the functions exercised and by the few legal benchmarks that exist, evidences the existence of broad constitutional pow er.6 The power to deploy troops abroad without the initiation of hostil­ ities is the most clearly established exercise of the President’s general power as a matter of historical practice. Examples of such actions in the past include the use of the Navy to “open up” Japan, and President Johnson’s introduction of the armed forces into the Dominican Repub­ lic in 1965 to forestall revolution. Operations of rescue and retaliation have also been ordered by the President without congressional authorization even when they involved hostilities. Presidents have repeatedly employed troops abroad in de­ fense of American lives and property. A famous early example is President Jefferson’s use of the Navy to suppress the Barbary pirates. Other instances abound, including protection of American citizens in China during the Boxer Rebellion in 1900, and the use of troops in 1916 to pursue Pancho Villa across the Mexican border. Recent examples include the Danang sealift during the collapse of Vietnam’s defenses (1975); the evacuation of Phnom Penh (Cambodia, 1975); the evacu­ ation of Saigon (1975); the M ayaguez incident (1975); evacuation of civilians during the civil war in Lebanon (1976); and the dispatch of forces to aid American victims in Guyana (1978). This history reveals that purposes of protecting American lives and property and retaliating against those causing injury to them are often intertwined. In D urand v. Hollins, 8 F. Cas. 111 (No. 4186) (C.C.S.D.N.Y. 1860), the court upheld the legality of the bombardment of a Nicaraguan town which was ordered because the local authorities refused to pay reparations for an attack by a mob on the United States Consul. Policies of deterrence seem to have eroded any clear distinc­ tion between cases of rescue and retaliation. Thus, there is much historical support for the power of the President to deploy troops without initiating hostilities and to direct rescue and retaliation operations even where hostilities are a certainty. There is 6 In o th er contexts, the Suprem e C ourt has recognized the validity o f longstanding presidential practices never expressly authorized by Congress but arguably ratified by its silence. See United States v. Midwest O il Co., 236 U.S. 459 (1915) (w ithdraw al o f public lands from private acquisition). 187 precedent as well for the commitment of United States armed forces, without prior congressional approval or declaration of war, to aid an ally in repelling an armed invasion, in President Truman’s response to the North Korean invasion of South K orea.7 But clearly such a re­ sponse cannot be sustained over time without the acquiescence, indeed the approval, of Congress, for it is Congress that must appropriate the money to fight a war or a police action. While Presidents have exer­ cised their authority to introduce troops into Korea and Vietnam 8 without prior congressional authorization, those troops remained only with the approval of Congress. II. Judicial Review of the President’s Exercise of Constitutional Power In the only major case dealing with the role of the courts with regard to this general subject, the Supreme Court upheld presidential power to act in an emergency without prior congressional authority. In the Prize Cases, 67 U.S. 635 (1863), the Court upheld President Lincoln’s blockade of Southern ports following the attack on Fort Sumter. The Court thought that particular uses of inherent executive power to repel invasion or rebellion were “political questions” not subject to judicial review: “This Court must be governed by the deci­ sions and acts of the political department of the Government to which this power was entrusted.” (Id. at 670). The Court’s unwillingness to review the need for presidential action in a particular instance in the Prize Cases or since has left the field to the President and Congress; much has depended on presidential restraint in responding to provoca­ tion, and on congressional willingness to support his initiatives by raising and funding armies. More recently, the courts have applied the rationale of the Prize Cases to avoid judicial review of the constitutionality of the President’s actions with regard to the Vietnam conflict.9 Although the Supreme Court did not hear argument in the case, we believe some significance may be attached to the Court’s summary affirmance of a three-judge court’s decision that the constitutionality of the government’s involve­ ment in that conflict was a political question and thus unsuitable for judicial resolution. Atlee v. Laird, 347 F. Supp. 689 (E.D.Pa. 1972), a ffd , 411 U.S. 911 (1973). 1 A lth o u g h support for this intro d u ctio n o f o u r arm ed forces into a “ h o t” w ar could be found in the U .N . C h arte r and a S ecurity C ouncil resolution, th e fact rem ains that this com m itm ent o f substantial forces occu rred w ith o u t congressional approval. 8 T h e substantia] A m erican m ilitary presence in V ietnam before the T onkin G u lf R esolution was know n to and supported by C ongress. 9See, e.g., Mora v. M cN am ara, 387 F.2d 862 (D .C . C ir.), cert, denied 389 U.S. 934 (1967); M cArthur v. Clifford, 393 U.S. 1002 (1968); Massachusetts v. Laird, 400 U.S. 886 (1970). 188 III. The President’s Statutory Powers Congress has restricted the President’s ability to rely on statutory authority for the use of armed force abroad by its provision in the War Powers Resolution that authority to introduce the armed forces into hostilities or into situations “wherein involvement in hostilities is clearly indicated by the circumstances” is not to be inferred from any statutory provision not specifically authorizing the use of troops and referring to the War Powers Resolution. 50 U.S.C. § 1547. Thus, the President may not rely on statutory authority for military actions clearly involving hostilities unless the statute expressly authorizes such actions. Nevertheless, it may be possible for the President to draw authority for some actions not involving the use of the armed forces in actual or imminent hostilities from the provisions of an 1868 statute, now 22 U.S.C. § 1732: Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign gov­ ernment, it shall be the duty of the President forthwith to demand of that government the reasons of such imprison­ ment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be communi­ cated by the President to Congress. We are unaware of any instances in which this provision has been invoked. It was passed in response to a dispute with Great Britain after the Civil War, in which that nation was trying its former subjects, who had become naturalized Americans, for treason. The House version of the bill, which would have authorized the President to suspend all commerce with the offending nation and to round up its citizens found in this country as hostages, was replaced by the present language which was in the Senate bill. Cong. Globe, 40th Cong., 2d Sess. 4205, 4445-46 (1868). It is not clear whether this change was meant to restrict the President to measures less drastic than those specified in the House bill. It is also not clear what Congress meant by the phrase “not amounting to acts of war.” At least Congress did not seem to be attempting to limit the President’s constitutional powers. 189 IV. The War Powers Resolution The War Powers Resolution, 50 U.S.C. §§ 1541-48, begins with a statement of purpose and policy that seems designed to limit presiden­ tial use of armed forces in hostilities to situations involving a declara­ tion of war, specific statutory authorization, or an attack on the United States, its possessions, or its armed forces. This policy statement, how­ ever, is not to be viewed as limiting presidential action in any substan­ tive manner. That much is clear from the conference report, which states that subsequent portions of the Resolution are not dependent on the policy statement,10 and from its construction by the President since its enactment. The important provisions of the Resolution concern consultation and reporting requirements and termination of the involvement of the armed forces in hostilities. The Resolution requires that the President consult with Congress “in every possible instance” before introducing the armed forces into hostilities, and regularly thereafter. 50 U.S.C. § 1542. The reporting requirements apply not only when hostilities are taking place or are imminent, but also when armed forces are sent to a foreign country equipped for combat. 50 U.S.C. § 1543(a)(2), (3). The report must be filed within 48 hours from the time that they are introduced into the area triggering the requirement, and not from the time that the decision to dispatch them is m ade.11 The report must include: (A) The circumstances necessitating the introduction of United States Armed Forces; (B) the constitutional and legislative authority under which such introduction took place; and (C) the estimated scope and duration of the hostilities or involvement. 50 U.S.C. § 1543(a)(3). Reports which have been filed in the past have been brief and to the point. The reference to legal authority has been one sentence, referring to the President’s constitutional power as Commander-in-Chief and Chief Executive.12 i0See H .R . Rep. No. 547, 93d C ong., 1st Sess. 8 (1973). Section 1547(d)(1) states that the Resolution is not intended to alter the constitutional au th o rity o f the President. Fisher. A Political C ontext fo r Legislative Vetos, 93 Political Science Q uarterly 241, 246 (1978), explains that because the tw o H ouses could not agree on the P resident’s responsibilities under A rticle II, C ongress fell back on purely procedural controls. 11See generally Franck, A fter the Fall: The N ew Procedural Framework fo r Congressional Control over the War Power. 71 Am. J. In l’l L. 605, 615 (1977). 12See War Powers: A Test o f Compliance Relative to the Danang Sealift, the Evacuation o f Phnom Penh, the Evacuation o f Saigon, and the Mayaguez Incident, Hearings before the Subcom mittee on Int'l Security and Scientific Affairs o f the House Comm, on In t'l Relations, 94th C ong., 1st Sess. 75 (M aya­ guez) (1975) (hereafter War Powers: A Test o f Compliance): The War Powers Resolution. Relevant Documents. Correspondence, Reports, Subcom m . on In t’l Security and Scientific A ffairs, H ouse Comm, on In t’l Relations, 94th C ong., 1st Sess. 40 (D anang); 42 (Phnom Penh); 45 (Mayaguez) (Com m . Print 1976). 190 The Resolution requires the President to terminate any use of the armed forces in hostilities after 60 days unless Congress has authorized his action.13 It also requires termination whenever Congress so directs by concurrent resolution.14 As enacted, the ambiguous language of the Resolution raises several issues of practical importance regarding the scope of its coverage as well as questions of constitutional magnitude. We shall discuss first several issues related to the scope of its coverage and then discuss several constitutional issues it raises. A threshold question is whether the Resolution’s use of the term “United States Armed Forces” was intended to reach deployment or use by the President of personnel other than members of the Army, Air Force, Marine Corps, Navy, or Coast Guard functioning under the control of the Secretary of Defense and the Joint Chiefs of Staff. For example, does it extend to military personnel detailed to and under the control of the Central Intelligence Agency (CIA), CIA agents them­ selves, or other individuals contracting to perform services for the CIA or the Department of Defense? We believe that none of these personnel are covered by the Resolution.* The provision most closely on point is § 1547(c), which defines the term “introduction of United States Armed Forces” to include “the assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country” in actual or imminent hostilities. This provision appears to be intended to identify activities subject to the Resolution, and not the identity of persons constituting “members of such armed forces.” It could be argued that anyone officially a member of the armed forces of this country, although on temporary detail to a civilian agency, is within this provision and therefore cov­ ered by the Resolution. The legislative history of the Resolution, how ­ ever, persuades us to take a contrary view. In the Senate, where § 1547(c) originated, Senator Eagleton introduced the following amendment: Any person employed by, under contract to, or under the direction of any department or agency of the United States Government who is either (a) actively engaged in hostilities in any foreign country; or (b) advising any regular or irregular military forces engaged in hostilities in any foreign country shall be deemed to be a member of 13 50 U.S.C. § 1544(b). T h e re are exceptions to the 60-day period if C ongress extends the period or is unable to meet, o r if the President certifies th at m ore time is needed to extract the forces. M50 U .S .C § 1544(c). • N o t e : This conclusion respecting the applicability o f the W ar Pow ers R esolution to m ilitary personnel detailed to the C entral Intelligence A gency w as reconsidered and reversed in an opinion dated O cto b er 26. 1983. w hich appears as an appendix to this opinion at p. 197 infra. Ed. 191 the Armed Forces of the United States for the purposes of this Act. He explained that it was intended to cover CIA paramilitary oper­ ations involving persons who might be military officers under contract to the CIA. 119 Cong. Rec. 25,079-83 (1973). He recognized that without this amendment the Resolution as drafted would not cover the activities of such personnel, and argued that it should, citing CIA activities in Laos as leading to America’s Indo-China involvement. Senators Muskie and Javits opposed the amendment, principally for reasons of committee jurisdiction. They argued that if the Resolution were extended to cover the CIA, its chances to escape presidential veto might be jeopardized, and that the matter should be considered pursu­ ant to proposed legislation to govern the CIA. Senator Javits also argued that the amendment was overbroad, since it would include foreign nationals contracting with the CIA. He argued that CIA activi­ ties should not be within the Resolution, because the CIA lacks the appreciable armed force that can commit the Nation to war. Senator Fulbright came to Senator Eagleton’s defense, arguing that the amendment, applying to the CIA and D O D civilians alike, would avoid circumvention of the Resolution. Id. at 25,083-84. No one suggested that the Resolution would apply to anyone other than military person­ nel under Department of Defense control unless the amendment passed. The amendment was defeated.15 In the House of Representatives, Congressman Badillo asked Con­ gressman Zablocki, the manager of the bill, whether he would support in the conference committee a Senate provision that would include the CIA within the bill when it carried out military functions. Congressman Zablocki replied that he would support the Eagleton amendment if it passed the Senate. 119 Cong. Rec. 24,697 (1973). Another provision o f the Resolution that had its source in the House is consistent with the view that the Resolution was not intended to apply to CIA paramilitary activities. The reporting requirements of § 1543(a)(2) apply when the armed forces are introduced “into the territory, air space or waters of a foreign nation, while equipped for combat . . . .” It is clear from H.R. Rep. No. 287, 93d Cong., 1st Sess. 8 (1973), that this provision was using the term “armed forces” to mean significant bodies of military personnel: A report would be required any time combat military forces were sent to another nation to alter or preserve the existing political status quo or to make the U.S. presence felt. Thus, for example, the dispatch o f Marines to Thai­ 15 It is an accepted canon o f statu to ry con stru ctio n that the rejection o f an am endm ent indicates that the bill is not m eant to include the provisions in the failed am endm ent. See, e.g., Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 306 (1933). 192 land in 1962 and the quarantine of Cuba in the same year would have required Presidential reports. A companion provision reinforces the view that the Resolution applies only to significant bodies of military personnel. The House report goes on to discuss § 1543(a)(3), which requires a report when the number of armed forces equipped for combat is substantially enlarged in a foreign nation. For examples of substantial increases in combat troops, the report gives the dispatch of 25% more troops to an existing station, or President Kennedy’s increase in U.S. military advisers in Vietnam from 700 to 16,000 in 1962. The second threshold question raised by the War Powers Resolution regards the meaning of the word “hostilities” as used in § 1543(a)(1). In the 1975 hearings on executive compliance with the Resolution, Chair­ man Zablocki of the Subcommittee on International Security and Scien­ tific Affairs drew the Legal Adviser’s attention to a discussion of “hostilities” in the House report on the Resolution: The word hostilities was substituted for the phrase arm ed conflict during the subcommittee drafting process because it was considered to be somewhat broader in scope. In addition to a situation in which fighting actually has begun, hostilities also encompasses a state of confron­ tation in which no shots have been fired but where there is a clear and present danger of armed conflict. “Im m inent hostilities" denotes a situation in which there is a clear potential either for such a state of confrontation or for actual armed conflict. H.R. Rep. No. 287, 93d Cong., 1st Sess. 7 (1973) (emphasis added). Chairman Zablocki then requested the views of the Departments of State and Defense regarding the Executive’s interpretation of the term “hostilities” in view of the language quoted above. Those Departments responded in a letter to the Chairman dated June 5, 1975, reprinted in War Powers: A Test o f Compliance at 38-40. After first noting that “hostilities” is “definable in a meaningful way only in the context of an actual set of facts,” the letter went on to state that, as applied by the Executive, the term included: a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces, and “imminent hostilities” was consid­ ered to mean a situation in which there is a serious risk from hostile fire to the safety of United States forces. In our view, neither term necessarily encompasses irregular or infrequent violence which may occur in a particular area. Id. at 39. 193 We agree that the term “hostilities” should not be read necessarily to include sporadic military or paramilitary attacks on our armed forces stationed abroad. Such situations do not generally involve the full military engagements with which the Resolution is primarily con­ cerned. For the same reason, we also believe that as a general matter the presence of our armed forces in a foreign country whose govern­ ment comes under attack by “guerrilla” operations would not trigger the reporting provisions of the War Powers Resolution unless our armed forces were assigned to “command, coordinate, participate in the movement of, or accompany” the forces of the host government in operations against such guerrilla operations.16 50 U.S.C. § 1547(c). Furthermore, if our armed forces otherwise lawfully stationed in a foreign country were fired upon and defended themselves, we doubt that such engagement in hostilities would be covered by the consulta­ tion and reporting provisions of the War Powers Resolution. The structure and thrust of those provisions is the “introduction” of our armed forces into such a situation and not the fact that those forces may be engaged in hostilities. It seems fair to read “introduction” to require an active decision to place forces in a hostile situation rather than their simply acting in self-defense.17 A final issue of statutory construction involves interpretation of the requirement for consultation with “Congress.” 18 As a practical matter, consultation with more than a select group of congressional leaders has never been attempted. The Legal Adviser of the State Department has argued for this Administration, correctly in our view, that there are practical limits to the consultation requirement; he has said that mean­ ingful consultations with “an appropriate group of congressional repre­ sentatives should be possible.” 19 During the M ayaguez incident about ten House and eleven Senate Members were contacted concerning the measures to be taken by the President.20 In requiring consultation in “every possible instance,” Congress meant to be firm yet flexible. H. R. Rep. No. 287, 93d Cong., 1st Sess. 6 (1973). The House report continued: The use of the word “every” reflects the committee’s belief that such consultation prior to the commitment of armed forces should be inclusive. In other words, it ,6W e believe that the definition o f "in troduction o f U nited States A rm ed Forces'* in § 1547(c) supports the proposition that mem bers o f the arm ed forces stationed in a foreign country for purposes o f training o r advising m ilitary forces o f the host governm ent are not generally to be view ed as subject to the W ar Pow ers Resolution. 17 In contrast, as passed by the Senate, the bill w ould have required a report w henever o u r arm ed forces are “engaged in hostilities." S. 440, 93d Cong., 1st Sess. § 4 , 119 C ong. Rec. 25,119 (1973). 18T his replaced an earlier version w hich m erely required consultation w ith the leadership and appropriate com m ittees o f C ongress. H. R. Conf. Rep. No. 547, 93d C ong., 1st Sess. 8 (1973); H. R. Rep. No. 287, 93d Cong., 1st Sess. 6 (1973). 19Statem ent o f State D epartm ent Legal A dviser H ansell before the Senate Foreign Relations C om m ittee, reprinted in State D epartm ent Bulletin, A ugust 29, 1977, at 291-92. 20T estim ony o f State D epartm ent Legal A dviser Leigh in War Powers: A Test o f Compliance at 78. 194 should apply to extraordinary and emergency circum­ stances—even when it is not possible to get formal con­ gressional approval in the form of a declaration of war or other specific authorization. At the same time, through use of the word “possible” it recognizes that a situation may be so dire, e.g., hostile missile attack underway, and require such instantaneous action that no prior consultation will be possible. The State Department Legal Adviser, again speaking for this Adminis­ tration, has pointed out the problem that exists in emergencies, noting that “[B]y their very nature some emergencies may preclude opportu­ nity for legislative debate prior to involvement of the Armed Forces in hostile or potentially hostile situations.” He recognized, however, that consultation may be had “in the great majority of cases.” 21 There may be constitutional considerations involved in the consulta­ tion requirement. When President Nixon vetoed the Resolution, he did not suggest that either the reporting or consultation requirements were unconstitutional. Department of State Bulletin, November 26, 1973, at 662-64. No Administration has taken the position that these require­ ments are unconstitutional on their face. Nevertheless, there may be applications which raise constitutional questions. This view was stated succinctly by State Department Legal Adviser Leigh: Section 3 of the War Powers Resolution has, in my view, been drafted so as not to hamper the President’s exercise of his constitutional authority. Thus, Section 3 leaves it to the President to determine precisely how consultation is to be carried out. In so doing the President may, I am sure, take into account the effect various possi­ ble modes of consultation may have upon the risk of a breach in security. Whether he could on security grounds alone dispense entirely with “consultation” when exercis­ ing an independent constitutional power, presents a ques­ tion of constitutional and legislative interpretation to which there is no easy answer. In my personal view, the resolution contemplates at least some consultation in every case irrespective of security considerations unless the President determines that such consultation is incon­ sistent with his constitutional obligation. In the latter event the President’s decision could not as a practical matter be challenged but he would have to be prepared to accept the political consequences of such action, which might be heavy. 21 Statem ent o f Legal A dviser Hansell, id. 195 War Powers: A Test o f Compliance at 100. Other constitutional issues raised by the Resolution concern the provisions terminating the use of our armed forces either through the passage of time (60 days) or the passage of a concurrent resolution. We believe that Congress may, as a general constitutional matter, place a 60-day limit on the use of our armed forces as required by the provisions of § 1544(b) of the Resolution. The Resolution gives the President the flexibility to extend that deadline for up to 30 days in cases of “unavoidable military necessity.” This flexibility is, we believe, sufficient under any scenarios we can hypothesize to preserve his con­ stitutional function as Commander-in-Chief. The practical effect of the 60-day limit is to shift the burden to the President to convince the Congress of the continuing need for the use of our armed forces abroad. We cannot say that placing that burden on the President un­ constitutionally intrudes upon his executive powers. Finally, Congress may regulate the President’s exercise of his inher­ ent powers by imposing limits by statute. We do not believe that Congress may, on a case-by-case basis, require the removal of our armed forces by passage of a concurrent resolution which is not submit­ ted to the President for his approval or disapproval pursuant to Article I, § 7 of the Constitution. Jo hn M. H arm on Assistant Attorney General Office o f Legal Counsel 196 A PPEND IX War Powers Resolution: Detailing of Military Personnel to the CIA October 26, 1983 MEM ORANDUM O PIN IO N FOR TH E DEPUTY ATTORNEY G E N ER A L This responds to your inquiry whether a Central Intelligence Agency (CIA) operation utilizing military equipment and military personnel detailed to the CIA would require compliance with the War Powers Resolution. In responding to this inquiry, this Office has found it necessary to re-examine and revise a broad conclusion expressed by this Office in its February 12, 1980 memorandum, the “Harmon Memoran­ dum,” 1 that “military personnel detailed to and under the control of the CIA . . .” would not be covered by the W ar Powers Resolution were they to be deployed into hostilities or a situation otherwise triggering that Resolution. The heart of the argument in the Harmon Memorandum is the essentially negative inference drawn from the Senate’s rejection of the so-called “Eagleton amendment,” 2 which is reprinted on page 8 of that memorandum. The Eagleton amendment would have supplemented § 8(c) o f the War Powers Resolution regarding the definition of the term “introduction of United States Armed Forces.” As enacted, § 8(c) now provides: For purposes of this chapter, the term “introduction of United States Armed Forces” includes the assignment of members of such armed forces to command, coordinate, 1M em orandum for the A ttorney G eneral entitled “ Presidential P ow er to Use the A rm ed Forces A broad W ithout S tatu to ry A u th o rizatio n " from Jo h n M. H arm on, A ssistant A tto rn e y G eneral, O ffice o f Legal C ounsel, Feb. 12, 1980. T h e occasion for this m em orandum w as planning relative to the holding by Iran o f A m erican hostages and a range o f potential A m erican responses to that situation including a possible rescue attem pt. T he m em orandum was general, how ever, and did not focus on a specific factual situation. Particularly, the H arm on M em orandum 's com m ents concerning a C IA operation involving detailed m ilitary personnel w as a part o f a general discussion and was not in response to a precise fact-specific question. 2 S enator Eagleton introduced several am endm ents to the W ar Pow ers Resolution. Som e w ere adopted. This particular am endm ent w as enum erated as am endm ent No. 366, and is set out in 119 C ong. R ec. 25,079 (1973). 197 participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities. 50 U.S.C. § 1547(c). Senator Eagleton urged adding the following sen­ tence: Any person employed by, under contract to, or under the direction of any department or agency of the United States Government who is either (a) actively engaged in hostilities in any foreign country; or (b) advising any regular or irregular military forces engaged in hostilities in any foreign country shall be deemed to be a member of the Armed Forces of the United States for the purposes of this Act. 119 Cong. Rec. 25,079 (1973). We observe at the outset that the Eagleton amendment on its face does not suggest that it deals with a situation in which uniformed personnel would be detailed to the CIA; indeed, what it would have done on its face was to provide that all government employees under the direction of any department or agency either engaged in hostilities in any foreign country or advising any regular or irregular military forces engaged in hostilities would be deemed to be a member of the armed forces for purposes of the War Powers Resolution. In other words, military or paramilitary activities by the CIA would have trig­ gered the War Powers Resolution irrespective of whether the activities were performed by military personnel, civilian employees, or persons under contract to or under the control of the CIA. The sentences in the Harmon memorandum that follow the quotation of the Eagleton amendment read as follows: He [Senator Eagleton] explained that it [his amendment] was intended to cover CIA paramilitary operations in­ volving persons who might be military officers under contract to the CIA. 119 Cong. Rec. 25079-83 (1973). He recognized that without this amendment the Resolution as drafted would not cover the activities of such personnel, and argued that it should, citing CIA activities in Laos as leading to America’s Indo-China involvement. We have carefully reviewed not only the remarks of Senator Eagleton contained in the cited pages of the Congressional Record, but also the full Senate debate on the Eagleton amendment. We have been unable to find a single remark made by Senator Eagleton or any other Senator that reasonably could be read to support the assertion con­ 198 tained in the sentences quoted above from the Harmon Memorandum. In fact, Senator Eagleton and the other Senators who spoke at length for or against the Eagleton amendment manifested an understanding that the debate revolved around the CIA ’s potential use of civilian personnel to conduct combat operations rather than situations in which the conduct of the same operations by military forces might occur. Senator Eagleton and his principal ally in the floor debate, Senator Fulbright, repeatedly expressed the view that failing to include activi­ ties which the CIA might conduct with civilian personnel was a major “loophole” which would allow Presidents to evade the War Powers Resolution. The whole point of the Eagleton amendment, which emerges with considerable clarity once the legislative history is exam­ ined closely, is that Senator Eagleton intended that civilian forces were to be treated the same as military forces for purposes of application of the War Powers Resolution: My amendment would circumscribe the President’s use of American civilian combatants in the same manner uni­ formed Armed Forces are circumscribed by S. 440 as presently drafted. It would, in other words, prevent a President from engaging American civilians, either directly or as advisers, in a hostile situation without the express consent of Congress. 119 Cong. Rec. 25,079 (1973) (emphasis added). Thus, Senator Eagleton spoke at considerable length about his concern that wars or lengthy and costly military engagements could be caused by CIA covert civilian operations. The discussion did not relate to covering, by this amend­ ment, the detailing of military personnel to the CIA. Furthermore, the record implies, albeit less strongly on this point, that CIA activities which actually used military personnel would be covered by the War Powers Resolution irrespective of the Eagleton amendment. The closest that Senator Eagleton himself comes to saying something similar to what was attributed to him by the Harmon Memorandum is in a paragraph that reads as follows: So military activities will be carried on by civilian em­ ployees of the Pentagon, because under the War Powers bill nothing prevents the Pentagon from hiring or con­ tracting with civilian employees, ex-m ilitary people per­ haps, but people that are called civilians. Id. at 25,083 (emphasis added). Senator Eagleton’s statements do not support the argument that the Eagleton amendment was an attempt to expand the War Powers Reso­ lution to embrace CIA activities using military personnel. When exam­ 199 ined in their full context, it was concern over any American involve­ ment in a military context which the Eagleton amendment was intended to address. He also said: unless we treat all Americans in military situations alike, whether they are wearing a green uniform, red-white-andblue or a seersucker suit with arms—what payroll you are on is really secondary; whether you get it from the Penta­ gon or whether you become a member of the Armed Forces, the end result is the same: Americans are exposed to the risk of war. And as they are exposed to the risk of war, the country, then makes a commitment to war. Id. at 25,080 (1973). In this same debate, Senator Javits, speaking in opposition to the Eagleton amendment, stated his understanding of the applicability of the War Powers Resolution to paramilitary activities conducted by the CIA as follows: Another important consideration is that there [is] outside the Armed Forces . . . no agency of the United States which has any appreciable armed forces power, not even the CIA. They [the CIA] might have some clandestine agents with rifles and pistols engaging in dirty tricks, but there is no capability of appreciable military action that would amount to war. Even in the Laotian war, the regular U.S. Armed Forces had to be called in to give air support. The minute com bat air support is required you have the A rm ed Forces, an d the [W ar Powers Resolution ] becomes operative. Id. at 25,082 (emphasis added). This debate over the Eagleton amendment stands rather clearly for the proposition that CIA civilian operations (at least most of them) were not embraced by the War Powers Resolution as ultimately passed by the Congress unadorned with the Eagleton amendment. We do not believe the negative inference to be drawn from the defeat of the Eagleton amendment can be stretched further than to confirm that CIA civilian operations are not embraced by the W ar Powers Resolution. In summary, we believe the legislative history relied on in the Harmon Memorandum supports the proposition that Congress assumed that the C IA ’s use of civilian or ex-military personnel would not trigger the War Powers Resolution. We do not believe that that legislative history may be relied upon for the conclusion that the involvement of 200 military personnel, if temporarily detailed to the CIA and under civilian control, would remain outside the War Powers Resolution. T heodore B. O lson Assistant Attorney General Office o f L egal Counsel

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Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization T h e P re sid e n t’s in h eren t, co n stitu tio n al a u th o rity as C o m m an d er-in -C h ie f, his b ro a d fo r­ eign p o licy p o w ers, and his d u ty to take c a re th a t th e law s be faithfully ex ecu ted g en erally e m p o w e r him to d e p lo y th e arm ed forces a b ro ad w ith o u t a d e c la ra tio n o f w a r by C o n g ress o r o th e r co n g ressio n al a u th o rizatio n . A histo rical p a tte rn o f p re sid e n ­ tial initiativ e an d co n g ressio n al acq u iescen ce in em e rg e n c y situ atio n s callin g fo r im m e­ d iate actio n , in clu d in g situ atio n s in v o lv in g rescu e an d retaliatio n , co n firm this in h eren t p o w er, and th e c o u rts h av e g e n e ra lly d ec lin e d to re v ie w its use. T h e W ar P o w e rs R eso lu tio n g e n e ra lly p re c lu d e s presidential relian ce on sta tu to ry a u th o r ­ ity fo r m ilitary actio n s cle a rly in v o lv in g hostilities, unless a sta tu te expressly au th o rizes su ch actions, an d reg u lates th e P re sid e n t’s use o f his c o n stitu tio n a l p o w e rs in this reg ard . In p a rtic u la r, it in tro d u c e s c o n su lta tio n an d re p o rtin g req u irem en ts in c o n n e c ­ tion w ith any use o f th e arm e d forces, an d req u ires th e term in a tio n o f su ch use w ithin 60 d ay s o r w h e n e v e r C o n g ress so d irects. T h e term "U n ite d S tates A rm e d F o rc e s ” in th e W a r P o w e rs R e so lu tio n d o es n o t include m ilitary p erso n n el d etailed to an d u n d e r th e c o n tro l o f th e C e n tra l In tellig en c e A g en cy . [In an o p in io n issued on O c to b e r 26, 1983, pu b lish ed as an ap p en d ix to this o p in io n , this c o n c lu sio n is reco n sid e re d an d rev e rse d ] T h e term "h o stilities" in th e W ar P o w e rs R e so lu tio n d o es n ot in clu d e sp o ra d ic m ilitary o r p aram ilita ry atta c k s o n o u r arm ed fo rces sta tio n ed ab ro ad ; fu rth e rm o re , its a p p lic a ­ bility req u ires an a c tiv e d ecision to p la c e fo rces in a h o stile situ atio n ra th e r th a n th eir sim ply actin g in self-defense. T h e req u irem en t o f co n su lta tio n in the W a r P o w e rs R e so lu tio n is n ot on its face u n c o n sti­ tu tio n al, th o u g h it m ay, if stric tly c o n stru e d , raise c o n stitu tio n al questions. T h e p ro v isio n in th e W a r P o w e rs R e so lu tio n p erm ittin g C o n g re ss to req u ire rem o v al o f o u r arm ed fo rces in p a rtic u la r cases by passage o f a c o n c u rre n t re so lu tio n n ot p resen ted to th e P resid en t is a prima facie v io latio n o f A rtic le I, § 7 o f th e C o n stitu tio n . February 12, 1980 MEMORANDUM OPINION FOR TH E ATTORNEY G E N ER A L This responds to your request for our review of certain questions regarding the effect of the War Powers Resolution on the President’s power to use military force without special congressional authorization and related issues. We have considered the President’s existing power to employ the armed forces in any of three distinct kinds of operations: (1) deployment abroad at some risk of engagement—for example, the current presence of the fleet in the Persian G ulf region; (2) a military expedition to rescue the hostages or to retaliate against Iran if the hostages are harmed; (3) an attempt to repel an assault that 185 threatens our vital interests in that region. We believe that the President has constitutional authority to order all of the foregoing operations. We also conclude that the War Powers Resolution, 50 U.S.C. §§ 1541-1548, has neither the purpose nor the effect of modifying the President’s power in this regard. The Resolution does, however, impose procedural requirements of consultation and reporting on certain presi­ dential actions, which we summarize. The Resolution also provides for the termination of the use of the armed forces in hostilities within 60 days or sooner if directed by a concurrent resolution of Congress. We believe that Congress may terminate presidentially initiated hostilities through the enactment of legislation, but that it cannot do so by means of a legislative veto device such as a concurrent resolution. I. The President’s Constitutional Authority to Employ the Armed Forces The centrally relevant constitutional provisions are Article II, § 2, which declares that “the President shall be Commander in Chief of the Army and Navy of the United States,” and Article I, § 8, which grants Congress the power “To declare W ar.” Early in our constitutional history, it perhaps could have been successfully argued that the Fram­ ers intended to confine the President to directing the military forces in wars declared by Congress.1 Even then, however, it was clear that the Framers contemplated that the President might use force to repel sudden invasions or rebellions without first seeking congressional ap­ proval. 2 In addition to the Commander-in-Chief Clause, the President’s broad foreign policy powers support deployment of the armed forces abroad.3 The President also derives authority from his duty to “take Care that the Laws be faithfully executed,” 4 for both treaties and customary international law are part of our law and Presidents have repeatedly asserted authority to enforce our international obligations 5 even when Congress has not enacted implementing legislation. 1H am ilton, in T h e Federalist No. 69, disparaged the P resident’s pow er as that o f "first G eneral and A dm iral’' o f the N ation, co n trastin g it to that o f the British king, w ho could declare w ar and raise and regulate armies. 2See M. Farrand, 2 T h e R ecords o f the F ed eral C onvention o f 1787, 318-19 (1911). O ther presidential actions, such as pro tectin g A m erican lives and pro p erty abroad and defending our allies, w ere not d irectly considered by the Fram ers. T his is understandable: the m ilitary needs o f the 18th centu ry probably did not require constitutional au th o rity for im m ediate presidential action in case of an attack on an ally. 3See generally United States v. Curtiss- Wright Export Corp., 299 U.S. 304 (1936). 4See In re Neagle, 135 U.S. 1 (1890) (broad view o f inherent presidential pow er to enforce constitutional as well as statu to ry provisions). 5 It should be observed, how ever, that treaties may not modify the basic allocation o f pow ers in our constitutional schem e. R eid v. Covert, 354 U.S. 1 (1957). M utual defense treaties are generally not self­ executing regarding the internal processes o f the signatory pow ers. Similarly, custom ary international law, w hich includes au th o rity for reasonable reprisals in response to another c o u n try ’s breach of international obligation, probably does not confer au th o rity on the President beyond the w arrant of necessity. 186 We believe that the substantive constitutional limits on the exercise of these inherent powers by the President are, at any particular time, a function of historical practice and the political relationship between the President and Congress. Our history is replete with instances of presi­ dential uses of military force abroad in the absence of prior congres­ sional approval. This pattern of presidential initiative and congressional acquiescence may be said to reflect the implicit advantage held by the executive over the legislature under our constitutional scheme in situa­ tions calling for immediate action. Thus, constitutional practice over two centuries, supported by the nature of the functions exercised and by the few legal benchmarks that exist, evidences the existence of broad constitutional pow er.6 The power to deploy troops abroad without the initiation of hostil­ ities is the most clearly established exercise of the President’s general power as a matter of historical practice. Examples of such actions in the past include the use of the Navy to “open up” Japan, and President Johnson’s introduction of the armed forces into the Dominican Repub­ lic in 1965 to forestall revolution. Operations of rescue and retaliation have also been ordered by the President without congressional authorization even when they involved hostilities. Presidents have repeatedly employed troops abroad in de­ fense of American lives and property. A famous early example is President Jefferson’s use of the Navy to suppress the Barbary pirates. Other instances abound, including protection of American citizens in China during the Boxer Rebellion in 1900, and the use of troops in 1916 to pursue Pancho Villa across the Mexican border. Recent examples include the Danang sealift during the collapse of Vietnam’s defenses (1975); the evacuation of Phnom Penh (Cambodia, 1975); the evacu­ ation of Saigon (1975); the M ayaguez incident (1975); evacuation of civilians during the civil war in Lebanon (1976); and the dispatch of forces to aid American victims in Guyana (1978). This history reveals that purposes of protecting American lives and property and retaliating against those causing injury to them are often intertwined. In D urand v. Hollins, 8 F. Cas. 111 (No. 4186) (C.C.S.D.N.Y. 1860), the court upheld the legality of the bombardment of a Nicaraguan town which was ordered because the local authorities refused to pay reparations for an attack by a mob on the United States Consul. Policies of deterrence seem to have eroded any clear distinc­ tion between cases of rescue and retaliation. Thus, there is much historical support for the power of the President to deploy troops without initiating hostilities and to direct rescue and retaliation operations even where hostilities are a certainty. There is 6 In o th er contexts, the Suprem e C ourt has recognized the validity o f longstanding presidential practices never expressly authorized by Congress but arguably ratified by its silence. See United States v. Midwest O il Co., 236 U.S. 459 (1915) (w ithdraw al o f public lands from private acquisition). 187 precedent as well for the commitment of United States armed forces, without prior congressional approval or declaration of war, to aid an ally in repelling an armed invasion, in President Truman’s response to the North Korean invasion of South K orea.7 But clearly such a re­ sponse cannot be sustained over time without the acquiescence, indeed the approval, of Congress, for it is Congress that must appropriate the money to fight a war or a police action. While Presidents have exer­ cised their authority to introduce troops into Korea and Vietnam 8 without prior congressional authorization, those troops remained only with the approval of Congress. II. Judicial Review of the President’s Exercise of Constitutional Power In the only major case dealing with the role of the courts with regard to this general subject, the Supreme Court upheld presidential power to act in an emergency without prior congressional authority. In the Prize Cases, 67 U.S. 635 (1863), the Court upheld President Lincoln’s blockade of Southern ports following the attack on Fort Sumter. The Court thought that particular uses of inherent executive power to repel invasion or rebellion were “political questions” not subject to judicial review: “This Court must be governed by the deci­ sions and acts of the political department of the Government to which this power was entrusted.” (Id. at 670). The Court’s unwillingness to review the need for presidential action in a particular instance in the Prize Cases or since has left the field to the President and Congress; much has depended on presidential restraint in responding to provoca­ tion, and on congressional willingness to support his initiatives by raising and funding armies. More recently, the courts have applied the rationale of the Prize Cases to avoid judicial review of the constitutionality of the President’s actions with regard to the Vietnam conflict.9 Although the Supreme Court did not hear argument in the case, we believe some significance may be attached to the Court’s summary affirmance of a three-judge court’s decision that the constitutionality of the government’s involve­ ment in that conflict was a political question and thus unsuitable for judicial resolution. Atlee v. Laird, 347 F. Supp. 689 (E.D.Pa. 1972), a ffd , 411 U.S. 911 (1973). 1 A lth o u g h support for this intro d u ctio n o f o u r arm ed forces into a “ h o t” w ar could be found in the U .N . C h arte r and a S ecurity C ouncil resolution, th e fact rem ains that this com m itm ent o f substantial forces occu rred w ith o u t congressional approval. 8 T h e substantia] A m erican m ilitary presence in V ietnam before the T onkin G u lf R esolution was know n to and supported by C ongress. 9See, e.g., Mora v. M cN am ara, 387 F.2d 862 (D .C . C ir.), cert, denied 389 U.S. 934 (1967); M cArthur v. Clifford, 393 U.S. 1002 (1968); Massachusetts v. Laird, 400 U.S. 886 (1970). 188 III. The President’s Statutory Powers Congress has restricted the President’s ability to rely on statutory authority for the use of armed force abroad by its provision in the War Powers Resolution that authority to introduce the armed forces into hostilities or into situations “wherein involvement in hostilities is clearly indicated by the circumstances” is not to be inferred from any statutory provision not specifically authorizing the use of troops and referring to the War Powers Resolution. 50 U.S.C. § 1547. Thus, the President may not rely on statutory authority for military actions clearly involving hostilities unless the statute expressly authorizes such actions. Nevertheless, it may be possible for the President to draw authority for some actions not involving the use of the armed forces in actual or imminent hostilities from the provisions of an 1868 statute, now 22 U.S.C. § 1732: Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign gov­ ernment, it shall be the duty of the President forthwith to demand of that government the reasons of such imprison­ ment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be communi­ cated by the President to Congress. We are unaware of any instances in which this provision has been invoked. It was passed in response to a dispute with Great Britain after the Civil War, in which that nation was trying its former subjects, who had become naturalized Americans, for treason. The House version of the bill, which would have authorized the President to suspend all commerce with the offending nation and to round up its citizens found in this country as hostages, was replaced by the present language which was in the Senate bill. Cong. Globe, 40th Cong., 2d Sess. 4205, 4445-46 (1868). It is not clear whether this change was meant to restrict the President to measures less drastic than those specified in the House bill. It is also not clear what Congress meant by the phrase “not amounting to acts of war.” At least Congress did not seem to be attempting to limit the President’s constitutional powers. 189 IV. The War Powers Resolution The War Powers Resolution, 50 U.S.C. §§ 1541-48, begins with a statement of purpose and policy that seems designed to limit presiden­ tial use of armed forces in hostilities to situations involving a declara­ tion of war, specific statutory authorization, or an attack on the United States, its possessions, or its armed forces. This policy statement, how­ ever, is not to be viewed as limiting presidential action in any substan­ tive manner. That much is clear from the conference report, which states that subsequent portions of the Resolution are not dependent on the policy statement,10 and from its construction by the President since its enactment. The important provisions of the Resolution concern consultation and reporting requirements and termination of the involvement of the armed forces in hostilities. The Resolution requires that the President consult with Congress “in every possible instance” before introducing the armed forces into hostilities, and regularly thereafter. 50 U.S.C. § 1542. The reporting requirements apply not only when hostilities are taking place or are imminent, but also when armed forces are sent to a foreign country equipped for combat. 50 U.S.C. § 1543(a)(2), (3). The report must be filed within 48 hours from the time that they are introduced into the area triggering the requirement, and not from the time that the decision to dispatch them is m ade.11 The report must include: (A) The circumstances necessitating the introduction of United States Armed Forces; (B) the constitutional and legislative authority under which such introduction took place; and (C) the estimated scope and duration of the hostilities or involvement. 50 U.S.C. § 1543(a)(3). Reports which have been filed in the past have been brief and to the point. The reference to legal authority has been one sentence, referring to the President’s constitutional power as Commander-in-Chief and Chief Executive.12 i0See H .R . Rep. No. 547, 93d C ong., 1st Sess. 8 (1973). Section 1547(d)(1) states that the Resolution is not intended to alter the constitutional au th o rity o f the President. Fisher. A Political C ontext fo r Legislative Vetos, 93 Political Science Q uarterly 241, 246 (1978), explains that because the tw o H ouses could not agree on the P resident’s responsibilities under A rticle II, C ongress fell back on purely procedural controls. 11See generally Franck, A fter the Fall: The N ew Procedural Framework fo r Congressional Control over the War Power. 71 Am. J. In l’l L. 605, 615 (1977). 12See War Powers: A Test o f Compliance Relative to the Danang Sealift, the Evacuation o f Phnom Penh, the Evacuation o f Saigon, and the Mayaguez Incident, Hearings before the Subcom mittee on Int'l Security and Scientific Affairs o f the House Comm, on In t'l Relations, 94th C ong., 1st Sess. 75 (M aya­ guez) (1975) (hereafter War Powers: A Test o f Compliance): The War Powers Resolution. Relevant Documents. Correspondence, Reports, Subcom m . on In t’l Security and Scientific A ffairs, H ouse Comm, on In t’l Relations, 94th C ong., 1st Sess. 40 (D anang); 42 (Phnom Penh); 45 (Mayaguez) (Com m . Print 1976). 190 The Resolution requires the President to terminate any use of the armed forces in hostilities after 60 days unless Congress has authorized his action.13 It also requires termination whenever Congress so directs by concurrent resolution.14 As enacted, the ambiguous language of the Resolution raises several issues of practical importance regarding the scope of its coverage as well as questions of constitutional magnitude. We shall discuss first several issues related to the scope of its coverage and then discuss several constitutional issues it raises. A threshold question is whether the Resolution’s use of the term “United States Armed Forces” was intended to reach deployment or use by the President of personnel other than members of the Army, Air Force, Marine Corps, Navy, or Coast Guard functioning under the control of the Secretary of Defense and the Joint Chiefs of Staff. For example, does it extend to military personnel detailed to and under the control of the Central Intelligence Agency (CIA), CIA agents them­ selves, or other individuals contracting to perform services for the CIA or the Department of Defense? We believe that none of these personnel are covered by the Resolution.* The provision most closely on point is § 1547(c), which defines the term “introduction of United States Armed Forces” to include “the assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country” in actual or imminent hostilities. This provision appears to be intended to identify activities subject to the Resolution, and not the identity of persons constituting “members of such armed forces.” It could be argued that anyone officially a member of the armed forces of this country, although on temporary detail to a civilian agency, is within this provision and therefore cov­ ered by the Resolution. The legislative history of the Resolution, how ­ ever, persuades us to take a contrary view. In the Senate, where § 1547(c) originated, Senator Eagleton introduced the following amendment: Any person employed by, under contract to, or under the direction of any department or agency of the United States Government who is either (a) actively engaged in hostilities in any foreign country; or (b) advising any regular or irregular military forces engaged in hostilities in any foreign country shall be deemed to be a member of 13 50 U.S.C. § 1544(b). T h e re are exceptions to the 60-day period if C ongress extends the period or is unable to meet, o r if the President certifies th at m ore time is needed to extract the forces. M50 U .S .C § 1544(c). • N o t e : This conclusion respecting the applicability o f the W ar Pow ers R esolution to m ilitary personnel detailed to the C entral Intelligence A gency w as reconsidered and reversed in an opinion dated O cto b er 26. 1983. w hich appears as an appendix to this opinion at p. 197 infra. Ed. 191 the Armed Forces of the United States for the purposes of this Act. He explained that it was intended to cover CIA paramilitary oper­ ations involving persons who might be military officers under contract to the CIA. 119 Cong. Rec. 25,079-83 (1973). He recognized that without this amendment the Resolution as drafted would not cover the activities of such personnel, and argued that it should, citing CIA activities in Laos as leading to America’s Indo-China involvement. Senators Muskie and Javits opposed the amendment, principally for reasons of committee jurisdiction. They argued that if the Resolution were extended to cover the CIA, its chances to escape presidential veto might be jeopardized, and that the matter should be considered pursu­ ant to proposed legislation to govern the CIA. Senator Javits also argued that the amendment was overbroad, since it would include foreign nationals contracting with the CIA. He argued that CIA activi­ ties should not be within the Resolution, because the CIA lacks the appreciable armed force that can commit the Nation to war. Senator Fulbright came to Senator Eagleton’s defense, arguing that the amendment, applying to the CIA and D O D civilians alike, would avoid circumvention of the Resolution. Id. at 25,083-84. No one suggested that the Resolution would apply to anyone other than military person­ nel under Department of Defense control unless the amendment passed. The amendment was defeated.15 In the House of Representatives, Congressman Badillo asked Con­ gressman Zablocki, the manager of the bill, whether he would support in the conference committee a Senate provision that would include the CIA within the bill when it carried out military functions. Congressman Zablocki replied that he would support the Eagleton amendment if it passed the Senate. 119 Cong. Rec. 24,697 (1973). Another provision o f the Resolution that had its source in the House is consistent with the view that the Resolution was not intended to apply to CIA paramilitary activities. The reporting requirements of § 1543(a)(2) apply when the armed forces are introduced “into the territory, air space or waters of a foreign nation, while equipped for combat . . . .” It is clear from H.R. Rep. No. 287, 93d Cong., 1st Sess. 8 (1973), that this provision was using the term “armed forces” to mean significant bodies of military personnel: A report would be required any time combat military forces were sent to another nation to alter or preserve the existing political status quo or to make the U.S. presence felt. Thus, for example, the dispatch o f Marines to Thai­ 15 It is an accepted canon o f statu to ry con stru ctio n that the rejection o f an am endm ent indicates that the bill is not m eant to include the provisions in the failed am endm ent. See, e.g., Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 306 (1933). 192 land in 1962 and the quarantine of Cuba in the same year would have required Presidential reports. A companion provision reinforces the view that the Resolution applies only to significant bodies of military personnel. The House report goes on to discuss § 1543(a)(3), which requires a report when the number of armed forces equipped for combat is substantially enlarged in a foreign nation. For examples of substantial increases in combat troops, the report gives the dispatch of 25% more troops to an existing station, or President Kennedy’s increase in U.S. military advisers in Vietnam from 700 to 16,000 in 1962. The second threshold question raised by the War Powers Resolution regards the meaning of the word “hostilities” as used in § 1543(a)(1). In the 1975 hearings on executive compliance with the Resolution, Chair­ man Zablocki of the Subcommittee on International Security and Scien­ tific Affairs drew the Legal Adviser’s attention to a discussion of “hostilities” in the House report on the Resolution: The word hostilities was substituted for the phrase arm ed conflict during the subcommittee drafting process because it was considered to be somewhat broader in scope. In addition to a situation in which fighting actually has begun, hostilities also encompasses a state of confron­ tation in which no shots have been fired but where there is a clear and present danger of armed conflict. “Im m inent hostilities" denotes a situation in which there is a clear potential either for such a state of confrontation or for actual armed conflict. H.R. Rep. No. 287, 93d Cong., 1st Sess. 7 (1973) (emphasis added). Chairman Zablocki then requested the views of the Departments of State and Defense regarding the Executive’s interpretation of the term “hostilities” in view of the language quoted above. Those Departments responded in a letter to the Chairman dated June 5, 1975, reprinted in War Powers: A Test o f Compliance at 38-40. After first noting that “hostilities” is “definable in a meaningful way only in the context of an actual set of facts,” the letter went on to state that, as applied by the Executive, the term included: a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces, and “imminent hostilities” was consid­ ered to mean a situation in which there is a serious risk from hostile fire to the safety of United States forces. In our view, neither term necessarily encompasses irregular or infrequent violence which may occur in a particular area. Id. at 39. 193 We agree that the term “hostilities” should not be read necessarily to include sporadic military or paramilitary attacks on our armed forces stationed abroad. Such situations do not generally involve the full military engagements with which the Resolution is primarily con­ cerned. For the same reason, we also believe that as a general matter the presence of our armed forces in a foreign country whose govern­ ment comes under attack by “guerrilla” operations would not trigger the reporting provisions of the War Powers Resolution unless our armed forces were assigned to “command, coordinate, participate in the movement of, or accompany” the forces of the host government in operations against such guerrilla operations.16 50 U.S.C. § 1547(c). Furthermore, if our armed forces otherwise lawfully stationed in a foreign country were fired upon and defended themselves, we doubt that such engagement in hostilities would be covered by the consulta­ tion and reporting provisions of the War Powers Resolution. The structure and thrust of those provisions is the “introduction” of our armed forces into such a situation and not the fact that those forces may be engaged in hostilities. It seems fair to read “introduction” to require an active decision to place forces in a hostile situation rather than their simply acting in self-defense.17 A final issue of statutory construction involves interpretation of the requirement for consultation with “Congress.” 18 As a practical matter, consultation with more than a select group of congressional leaders has never been attempted. The Legal Adviser of the State Department has argued for this Administration, correctly in our view, that there are practical limits to the consultation requirement; he has said that mean­ ingful consultations with “an appropriate group of congressional repre­ sentatives should be possible.” 19 During the M ayaguez incident about ten House and eleven Senate Members were contacted concerning the measures to be taken by the President.20 In requiring consultation in “every possible instance,” Congress meant to be firm yet flexible. H. R. Rep. No. 287, 93d Cong., 1st Sess. 6 (1973). The House report continued: The use of the word “every” reflects the committee’s belief that such consultation prior to the commitment of armed forces should be inclusive. In other words, it ,6W e believe that the definition o f "in troduction o f U nited States A rm ed Forces'* in § 1547(c) supports the proposition that mem bers o f the arm ed forces stationed in a foreign country for purposes o f training o r advising m ilitary forces o f the host governm ent are not generally to be view ed as subject to the W ar Pow ers Resolution. 17 In contrast, as passed by the Senate, the bill w ould have required a report w henever o u r arm ed forces are “engaged in hostilities." S. 440, 93d Cong., 1st Sess. § 4 , 119 C ong. Rec. 25,119 (1973). 18T his replaced an earlier version w hich m erely required consultation w ith the leadership and appropriate com m ittees o f C ongress. H. R. Conf. Rep. No. 547, 93d C ong., 1st Sess. 8 (1973); H. R. Rep. No. 287, 93d Cong., 1st Sess. 6 (1973). 19Statem ent o f State D epartm ent Legal A dviser H ansell before the Senate Foreign Relations C om m ittee, reprinted in State D epartm ent Bulletin, A ugust 29, 1977, at 291-92. 20T estim ony o f State D epartm ent Legal A dviser Leigh in War Powers: A Test o f Compliance at 78. 194 should apply to extraordinary and emergency circum­ stances—even when it is not possible to get formal con­ gressional approval in the form of a declaration of war or other specific authorization. At the same time, through use of the word “possible” it recognizes that a situation may be so dire, e.g., hostile missile attack underway, and require such instantaneous action that no prior consultation will be possible. The State Department Legal Adviser, again speaking for this Adminis­ tration, has pointed out the problem that exists in emergencies, noting that “[B]y their very nature some emergencies may preclude opportu­ nity for legislative debate prior to involvement of the Armed Forces in hostile or potentially hostile situations.” He recognized, however, that consultation may be had “in the great majority of cases.” 21 There may be constitutional considerations involved in the consulta­ tion requirement. When President Nixon vetoed the Resolution, he did not suggest that either the reporting or consultation requirements were unconstitutional. Department of State Bulletin, November 26, 1973, at 662-64. No Administration has taken the position that these require­ ments are unconstitutional on their face. Nevertheless, there may be applications which raise constitutional questions. This view was stated succinctly by State Department Legal Adviser Leigh: Section 3 of the War Powers Resolution has, in my view, been drafted so as not to hamper the President’s exercise of his constitutional authority. Thus, Section 3 leaves it to the President to determine precisely how consultation is to be carried out. In so doing the President may, I am sure, take into account the effect various possi­ ble modes of consultation may have upon the risk of a breach in security. Whether he could on security grounds alone dispense entirely with “consultation” when exercis­ ing an independent constitutional power, presents a ques­ tion of constitutional and legislative interpretation to which there is no easy answer. In my personal view, the resolution contemplates at least some consultation in every case irrespective of security considerations unless the President determines that such consultation is incon­ sistent with his constitutional obligation. In the latter event the President’s decision could not as a practical matter be challenged but he would have to be prepared to accept the political consequences of such action, which might be heavy. 21 Statem ent o f Legal A dviser Hansell, id. 195 War Powers: A Test o f Compliance at 100. Other constitutional issues raised by the Resolution concern the provisions terminating the use of our armed forces either through the passage of time (60 days) or the passage of a concurrent resolution. We believe that Congress may, as a general constitutional matter, place a 60-day limit on the use of our armed forces as required by the provisions of § 1544(b) of the Resolution. The Resolution gives the President the flexibility to extend that deadline for up to 30 days in cases of “unavoidable military necessity.” This flexibility is, we believe, sufficient under any scenarios we can hypothesize to preserve his con­ stitutional function as Commander-in-Chief. The practical effect of the 60-day limit is to shift the burden to the President to convince the Congress of the continuing need for the use of our armed forces abroad. We cannot say that placing that burden on the President un­ constitutionally intrudes upon his executive powers. Finally, Congress may regulate the President’s exercise of his inher­ ent powers by imposing limits by statute. We do not believe that Congress may, on a case-by-case basis, require the removal of our armed forces by passage of a concurrent resolution which is not submit­ ted to the President for his approval or disapproval pursuant to Article I, § 7 of the Constitution. Jo hn M. H arm on Assistant Attorney General Office o f Legal Counsel 196 A PPEND IX War Powers Resolution: Detailing of Military Personnel to the CIA October 26, 1983 MEM ORANDUM O PIN IO N FOR TH E DEPUTY ATTORNEY G E N ER A L This responds to your inquiry whether a Central Intelligence Agency (CIA) operation utilizing military equipment and military personnel detailed to the CIA would require compliance with the War Powers Resolution. In responding to this inquiry, this Office has found it necessary to re-examine and revise a broad conclusion expressed by this Office in its February 12, 1980 memorandum, the “Harmon Memoran­ dum,” 1 that “military personnel detailed to and under the control of the CIA . . .” would not be covered by the W ar Powers Resolution were they to be deployed into hostilities or a situation otherwise triggering that Resolution. The heart of the argument in the Harmon Memorandum is the essentially negative inference drawn from the Senate’s rejection of the so-called “Eagleton amendment,” 2 which is reprinted on page 8 of that memorandum. The Eagleton amendment would have supplemented § 8(c) o f the War Powers Resolution regarding the definition of the term “introduction of United States Armed Forces.” As enacted, § 8(c) now provides: For purposes of this chapter, the term “introduction of United States Armed Forces” includes the assignment of members of such armed forces to command, coordinate, 1M em orandum for the A ttorney G eneral entitled “ Presidential P ow er to Use the A rm ed Forces A broad W ithout S tatu to ry A u th o rizatio n " from Jo h n M. H arm on, A ssistant A tto rn e y G eneral, O ffice o f Legal C ounsel, Feb. 12, 1980. T h e occasion for this m em orandum w as planning relative to the holding by Iran o f A m erican hostages and a range o f potential A m erican responses to that situation including a possible rescue attem pt. T he m em orandum was general, how ever, and did not focus on a specific factual situation. Particularly, the H arm on M em orandum 's com m ents concerning a C IA operation involving detailed m ilitary personnel w as a part o f a general discussion and was not in response to a precise fact-specific question. 2 S enator Eagleton introduced several am endm ents to the W ar Pow ers Resolution. Som e w ere adopted. This particular am endm ent w as enum erated as am endm ent No. 366, and is set out in 119 C ong. R ec. 25,079 (1973). 197 participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities. 50 U.S.C. § 1547(c). Senator Eagleton urged adding the following sen­ tence: Any person employed by, under contract to, or under the direction of any department or agency of the United States Government who is either (a) actively engaged in hostilities in any foreign country; or (b) advising any regular or irregular military forces engaged in hostilities in any foreign country shall be deemed to be a member of the Armed Forces of the United States for the purposes of this Act. 119 Cong. Rec. 25,079 (1973). We observe at the outset that the Eagleton amendment on its face does not suggest that it deals with a situation in which uniformed personnel would be detailed to the CIA; indeed, what it would have done on its face was to provide that all government employees under the direction of any department or agency either engaged in hostilities in any foreign country or advising any regular or irregular military forces engaged in hostilities would be deemed to be a member of the armed forces for purposes of the War Powers Resolution. In other words, military or paramilitary activities by the CIA would have trig­ gered the War Powers Resolution irrespective of whether the activities were performed by military personnel, civilian employees, or persons under contract to or under the control of the CIA. The sentences in the Harmon memorandum that follow the quotation of the Eagleton amendment read as follows: He [Senator Eagleton] explained that it [his amendment] was intended to cover CIA paramilitary operations in­ volving persons who might be military officers under contract to the CIA. 119 Cong. Rec. 25079-83 (1973). He recognized that without this amendment the Resolution as drafted would not cover the activities of such personnel, and argued that it should, citing CIA activities in Laos as leading to America’s Indo-China involvement. We have carefully reviewed not only the remarks of Senator Eagleton contained in the cited pages of the Congressional Record, but also the full Senate debate on the Eagleton amendment. We have been unable to find a single remark made by Senator Eagleton or any other Senator that reasonably could be read to support the assertion con­ 198 tained in the sentences quoted above from the Harmon Memorandum. In fact, Senator Eagleton and the other Senators who spoke at length for or against the Eagleton amendment manifested an understanding that the debate revolved around the CIA ’s potential use of civilian personnel to conduct combat operations rather than situations in which the conduct of the same operations by military forces might occur. Senator Eagleton and his principal ally in the floor debate, Senator Fulbright, repeatedly expressed the view that failing to include activi­ ties which the CIA might conduct with civilian personnel was a major “loophole” which would allow Presidents to evade the War Powers Resolution. The whole point of the Eagleton amendment, which emerges with considerable clarity once the legislative history is exam­ ined closely, is that Senator Eagleton intended that civilian forces were to be treated the same as military forces for purposes of application of the War Powers Resolution: My amendment would circumscribe the President’s use of American civilian combatants in the same manner uni­ formed Armed Forces are circumscribed by S. 440 as presently drafted. It would, in other words, prevent a President from engaging American civilians, either directly or as advisers, in a hostile situation without the express consent of Congress. 119 Cong. Rec. 25,079 (1973) (emphasis added). Thus, Senator Eagleton spoke at considerable length about his concern that wars or lengthy and costly military engagements could be caused by CIA covert civilian operations. The discussion did not relate to covering, by this amend­ ment, the detailing of military personnel to the CIA. Furthermore, the record implies, albeit less strongly on this point, that CIA activities which actually used military personnel would be covered by the War Powers Resolution irrespective of the Eagleton amendment. The closest that Senator Eagleton himself comes to saying something similar to what was attributed to him by the Harmon Memorandum is in a paragraph that reads as follows: So military activities will be carried on by civilian em­ ployees of the Pentagon, because under the War Powers bill nothing prevents the Pentagon from hiring or con­ tracting with civilian employees, ex-m ilitary people per­ haps, but people that are called civilians. Id. at 25,083 (emphasis added). Senator Eagleton’s statements do not support the argument that the Eagleton amendment was an attempt to expand the War Powers Reso­ lution to embrace CIA activities using military personnel. When exam­ 199 ined in their full context, it was concern over any American involve­ ment in a military context which the Eagleton amendment was intended to address. He also said: unless we treat all Americans in military situations alike, whether they are wearing a green uniform, red-white-andblue or a seersucker suit with arms—what payroll you are on is really secondary; whether you get it from the Penta­ gon or whether you become a member of the Armed Forces, the end result is the same: Americans are exposed to the risk of war. And as they are exposed to the risk of war, the country, then makes a commitment to war. Id. at 25,080 (1973). In this same debate, Senator Javits, speaking in opposition to the Eagleton amendment, stated his understanding of the applicability of the War Powers Resolution to paramilitary activities conducted by the CIA as follows: Another important consideration is that there [is] outside the Armed Forces . . . no agency of the United States which has any appreciable armed forces power, not even the CIA. They [the CIA] might have some clandestine agents with rifles and pistols engaging in dirty tricks, but there is no capability of appreciable military action that would amount to war. Even in the Laotian war, the regular U.S. Armed Forces had to be called in to give air support. The minute com bat air support is required you have the A rm ed Forces, an d the [W ar Powers Resolution ] becomes operative. Id. at 25,082 (emphasis added). This debate over the Eagleton amendment stands rather clearly for the proposition that CIA civilian operations (at least most of them) were not embraced by the War Powers Resolution as ultimately passed by the Congress unadorned with the Eagleton amendment. We do not believe the negative inference to be drawn from the defeat of the Eagleton amendment can be stretched further than to confirm that CIA civilian operations are not embraced by the W ar Powers Resolution. In summary, we believe the legislative history relied on in the Harmon Memorandum supports the proposition that Congress assumed that the C IA ’s use of civilian or ex-military personnel would not trigger the War Powers Resolution. We do not believe that that legislative history may be relied upon for the conclusion that the involvement of 200 military personnel, if temporarily detailed to the CIA and under civilian control, would remain outside the War Powers Resolution. T heodore B. O lson Assistant Attorney General Office o f L egal Counsel

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Application of Privacy Act Congressional-Disclosure Exception to Disclosures to Ranking Minority Members The congressional-disclosure exception to the disclosure prohibition of the Privacy Act generally does not apply to disclosures to committee ranking minority members. December 5, 2001 LETTER OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF THE TREASURY This letter responds to your request of November 13, 2001, for the opinion of this Office concerning whether information protected by the Privacy Act of 1974 (“Privacy Act” or “Act”), 5 U.S.C. § 552a (2000), may be disclosed to the ranking minority member of the Senate Finance Committee, pursuant to the Act’s congressional-disclosure exception, id. § 552a(b)(9). We understand that the ranking minority member, not the Finance Committee, requested this information. The Privacy Act prohibits the disclosure of information subject to the protections of the Act without the consent of the individual to whom the information relates, unless one of the enumerated exceptions of the Act applies. Id. § 552a(b). One of those exceptions authorizes disclosure “to either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee.” Id. § 552a(b)(9). We conclude that the Privacy Act prohibits the disclosure of the Privacy Actprotected information to the ranking minority member. Except where the Senate or House exercises its investigative and oversight authority directly, as is the case with a resolution of inquiry adopted by the Senate or House, each House of Congress exercises its investigative and oversight authority through delegations of authority to its committees, which act either through requests by the committee chairman, speaking on behalf of the committee, or through some other action by the committee itself. As a general matter, ranking minority members are not authorized to make committee requests, act as the official recipient of information for a committee, or otherwise act on behalf of a committee. We understand that the ranking minority member has not received such an authorization from the Finance Committee. Thus, the essential analysis underlying our conclusion is that although the congressional-disclosure exception to the Privacy Act disclosure prohibition is available for disclosures to either House of Congress or to a committee of Congress, ranking minority members generally do not act on behalf of congressional committees. Accordingly, absent the unusual circumstance of a specific delegation to a ranking minority member from the Senate or House or a committee, a disclosure of Privacy Act information solely to a ranking minority member 289 227-329 VOL_25_PROOF.pdf 299 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 is not a disclosure to the committee, and the congressional-disclosure exception is therefore unavailable. Of course, disclosure of the information to the ranking minority member would be authorized by the exception if the committee itself or its chairman authorizes the disclosure. You also asked whether our conclusion would be any different if the information is delivered to the ranking minority member through the clerk of the committee rather than directly to the member. Our conclusion does not change in that circumstance because all that is different is the method of delivery. The disclosure still cannot be viewed as being made to the committee unless the disclosure has been authorized by the committee or its chairman. Our conclusion that the Privacy Act’s congressional-disclosure exception does not generally apply to disclosures to ranking minority members follows the longstanding Executive Branch practice on this question. Moreover, we note that the Congressional Research Service takes the same view as we do concerning the lack of authority of ranking minority members, as a general matter, to act on behalf of congressional committees: The role of members of the minority party in the investigatory oversight process is governed by the rules of each House and its committees. . . . [N]o House or committee rules authorize ranking minority members or individual members on their own to institute official committee investigations, hold hearings or to issue subpoenas. Individual members may seek the voluntary cooperation of agency officials or private persons. But no judicial precedent has recognized a right in an individual member, other than the chair of a committee, to exercise the authority of a committee in the context of oversight without the permission of a majority of the committee or its chair. Morton Rosenberg, Cong. Research Serv., Rpt. 95-464A, Investigative Oversight: An Introduction to the Law, Practice and Procedure of Congressional Inquiry 56 (Apr. 7, 1995) (footnote omitted). JAY S. BYBEE Assistant Attorney General Office of Legal Counsel 290 227-329 VOL_25_PROOF.pdf 300 10/22/12 11:10 AM

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Diverting Oil Imports to United States Allies The International Em ergency Econom ic Powers Act would authorize the President, in order to deal with an Iranian cutoff of oil to United States allies, to require American oil companies and foreign entities they control to ship oil they acquire abroad to certain specified nations and in certain specified quantities. W hile there must be a "foreign interest” in the oil for the President to invoke lE E P A ’s powers, foreign interest unassociated with the nation that is creating the em ergency would be sufficient. Section 232(b) of the T rade Expansion Act would allow the President to impose a quota on oil imports for national security reasons, including reasons relating to foreign policy considerations; however, it would not give him power to direct the diversion o f oil imports to other countries. January 12, 1981 MEMORANDUM OPINION FOR THE ASSOCIATE ATTORNEY GENERAL Iran may end or reduce exports of its oil to some of our allies who are heavily dependent on Iranian oil. You have asked us whether the President has authority to divert to those allies shipments of foreign oil that would otherwise be imported into the United States. We believe the President has this authority over at least some such shipments. There are several possible sources of authority; the International Emer­ gency Economic Powers Act (IEEPA), 50 U.S.C. §§ 1701-1706 (Supp. I 1977), seems the clearest and most appropriate. I. The International Emergency Economic Powers Act We believe that the IEEPA empowers the President, in dealing with a declared national emergency, to require American oil companies and entities they control to sell any oil they acquire or can acquire abroad—except perhaps oil the company itself already owns, free of all foreign rights—and to sell it only to nations specified by the President and in quantities the President specifies. If the President enters such an order to deal with the Iranian hostage crisis, or the emergency declared in connection with the Soviet invasion of Afghanistan, he need not declare another national emergency. If the need to divert oil shipments arises from a separate emergency, that emergency should be declared. 1 'W e w ould alert you lo Congress* injunction that “emergencies are by their nature rare and brief, and are not to be equated w ith normal, ongoing problems. A national em ergency should be declared C o n tin u e d 295 Section 203(a)(1)(B) of the IEEPA, 50 U.S.C. § 1702(a)(1)(B), author­ izes the President, in dealing with a national emergency, to: investigate, regulate, direct and compel, nullify, void, pre­ vent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions in­ volving, any property in which any foreign country or a national thereof has any interest; by any person, or with respect to any property, subject to the jurisdiction of the United States. On its face this provision appears to give the President power to require American companies, and foreign entities they control,2 to ship oil they acquire abroad to certain other nations and in certain quantities. The principal difficulty with the President’s using this power is that it is unclear whether all oil acquired abroad by American companies is “property in which [a] foreign country or a national thereof has any interest.” Some oil is owned by a foreign nation or foreign national but can be acquired by an American company; this is plainly property in which there is a foreign interest, at least until after the time it is acquired. Since “any” interest will suffice, we believe that oil in which a foreign nation or national has a contract right—for example, a right to refuse to allow the oil to be shipped unless a certain royalty is paid— is also subject to the President’s power. Because the United States is not now importing oil from Iran, the foreign interest will not be that of Iran, and will probably not be that of an Iranian national; it may be argued that § 203(a)(1)(B) does not reach property in which the only foreign interest is unassociated with the nation that is the cause of the emergency. We do not believe this argument is correct, however. Section 203(a)(1)(B) refers to “any for­ eign country or a national thereof” (emphasis added), and the legisla­ tive history of the IEEPA suggests that the principal reason for the foreign interest limitation was to prevent the President from regulating “domestic” transactions, see, e.g., H.R. Rep. No. 459, 95th Cong., 1st and em ergency authorities em ployed only w ith respect to a specific set o f circum stances which constitute a real em ergency, and for no other purpose. T he em ergency should be term inated in a timely m anner w hen the factual state o f em ergency is over and not continued in effect for use in other circum stances. A state o f national em ergency should not be a norm al state o f affairs.” H.R. Rep. No. 459, 95th Cong., 1st Sess. 10 (1977). 2 A m erican corporations are clearly subject to the jurisdiction o f the United States. See Restate­ ment (Second) of Foreign Relations Law o f the United States, §§27, 30 (1965). Foreign entities they control may also be, although they may be subject to the com peting jurisdiction of the foreign country. In addition, § 203(a)(1)(B) perm its the President to “ regulate, [or] direct and com pel, . . . [the] exercising [of] any right, pow er, or privilege w ith respect to . . . any [foreign] property.” We believe this authorizes the President to require an A m erican com pany to exercise its control over foreign entities in the w ay the President directs, at least w hen the direction furthers the purposes of other regulations imposed under the IE E P A . 296 Sess. 11 (1977), not to limit the foreign nations whose interests might be affected. Moreover, Congress probably expected the IEEPA to be used for emergencies—international monetary disorders, for example—that do not originate in any single country. Similarly, a diversion of oil imports might be an effort to coordinate our international trade in a way that serves the economic and political objectives the President is pursuing in dealing with a declared emergency. If it were, we believe that it would be the sort of action Congress expected the President to take under the IEEPA. Some oil located abroad may be entirely owned by an American corporation and not subject to any foreign nation’s or national’s prop­ erty or contract rights.3 It is much more difficult to conclude that there is a foreign interest in this oil. It seems unlikely, although perhaps arguable, that a nation’s ability to tax a quantity of oil, seize it or prevent its shipment by asserting eminent domain, and otherwise exert jurisdiction over it, constitute an “interest” in the oil. Some courts have suggested that a foreign nation has an “interest”—within the meaning of § 5(b) of the Trading with the Enemy Act, the predecessor of the IEEPA—in any item it exports. Those courts reasoned that by selling its products abroad a nation helps “to sustain its internal economy and provide it with foreign exchange.” See United States v. Broverman, 180 F. Supp. 631, 636 (S.D.N.Y. 1959); Heaton v. United States, 353 F.2d 288, 291-92 (9th Cir. 1965). But we have substantial doubt that this is a sufficiently direct interest to permit regulation under § 203(a)(1)(B) of the IEEPA, at least if the object of the regulation is not to disrupt a nation’s internal economy or deprive it of foreign exchange.4 3 W e express no opinion on the extent to w hich American corporations' acquisitions o f oil from foreign nations may be regulated retroactively under the IEE PA . 4W e have these doubts for several reasons. First, the language of § 203(a)(1)(B) suggests that the term “interest” should not be interpreted in a way that has no connection to its usual legal meaning. Section 203(a)(1)(B) refers to property in w hich a “foreign country or a national thereof has any interest” (emphasis added); this may suggest that the drafters intended to reach only those kinds of interests of foreign nations which could also be held by individuals. M oreover, in describing the President’s powers, § 203(a)(1)(B) uses highly inclusive language—“investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, w ithholding, use, transfer [etc.]” — that was evidently intended to cover a wide variety of possible actions. Section 203(a)(1)(B) does not use com parably inclusive language in describing the range o f foreign interests covered. This may suggest that the drafters o f the IEE PA did not intend the term '‘interest” to be extraordinarily inclusive. In ordinary legal usage, a nation would not have an “ interest” in a piece of property unless it owned it or had an indirect, partial, contingent, or future interest in it, or a contract right to it; one would not ordinarily say that a nation had an “interest” in all the property located w ithin its borders. Second, Congress clearly intended that the President not use the IE E P A to regulate “w holly dom estic” transactions. See, e.g., H.R. Rep. No. 459, 95th C ong., 1st Sess. 11 (1977). W e recognize that § 203(a)(1)(B), enacted as part of the IE E P A in 1977, contains the same language as § 5(b) of the Trading with the Enem y A ct; the cases cited in the text interpreted this language. C ongress presum ­ ably knew o f these cases when it enacted § 203(a)(1)(B) in this form. But if w e w ere to adopt the broadest possible interpretation of these cases—that a nation has an “interest” in property, within the meaning of § 203(a)(1)(B), w henever transactions in that property can have an im portant effect on its econom y —we would, allow the President to regulate w holly domestic transactions, in violation of C ongress’ clear intentions; foreign countries' econom ies may be substantially affected by w holly dom estic American transactions. We see no other principled interpretation o f the term “foreign . . . interest” in § 203(a)(1)(B) that would allow the President to regulate transactions in oil that is located C o n tin u e d 297 The President may be able to reach transactions in American-owned oil located abroad under a different provision of the IEEPA, § 203(a)(l)(A)(i), 50 U.S.C. § 1702(a)(l)(A)(i). That provision authorizes the President, in dealing with a national emergency, to “investigate, regulate, or prohibit . . . any transactions in foreign exchange . . . by any person, or with respect to any property, subject to the jurisdiction of the United States.” An American company which owned oil located abroad would presumably have to deal in foreign exchange in order to sell the oil; the foreign exchange transactions associated with such sales might be regulated in a way that compelled the company to comply with the President’s directions. While this provision of the IEEPA on its face seems to permit such regulation, some substantial objections can be raised. Arguably, Congress envisioned that the § 203(a)(l)(A)(i) au­ thority to regulate transactions in foreign exchange would be invoked only where the President’s concern was with the use of foreign ex­ change in the transaction. Congress probably did not intend the Presi­ dent to take advantage of the fact that foreign exchange was involved solely as a means of reaching transactions that he otherwise could not regulate. In other words, in enacting § 203(a)(1)(B) Congress may have intended to limit the President’s power over transactions in property to property in which there was a foreign interest; if so, Congress would not have intended the President to use his authority over transactions in foreign exchange to circumvent that limitation. For these reasons, we have substantial doubt about the President’s authority under the IEEPA to regulate transactions in oil that is located abroad but entirely owned by American companies. To the extent that the reasons for regulating such transactions are related to the fact that the transactions involve foreign exchange, the argument that § 203(a)(l)(A)(i) grants the Presi­ dent authority to regulate them is enhanced. On the facts as known to us, however, it is difficult to discern such a relationship. Finally, it can be argued that while § 203(a)(1)(B) authorizes the President to “direct and compel . . . [the] acquisition” of oil in which there is a foreign interest, the foreign interest disappears as soon as an American company acquires the oil, and the President loses his power to direct the oil to a destination or otherwise to control its sale. For several reasons, we believe this argument is incorrect. As far as the text of the Act is concerned, the President has the power to “regulate” the acquisition of the oil; this suggests that he may order that it not be acquired unless it will be shipped to the destination he has designated. In addition, the President may “regulate [or] direct and compel . . . any . . . use, transfer, . . . transportation . . . dealing in . . . or trans­ actions involving” property in which there is a foreign interest. By within a foreign nation but w holly ow ned by an A m erican corporation, at least when the purpose of the regulation is not to disrupt the foreign nation’s econom y. See a/so Permian Basin Area Rate Cases, 390 U.S. 747, 777, 780 (1968). 298 requiring oil to be shipped from one foreign country to another, the President appears to be simply regulating or directing a transfer, trans­ portation, or dealing in the oil. Moreover, the President may “regulate, direct and compel, nullify, void, prevent or prohibit, any . . . dealing in, or exercising any right, power, or privilege with respect to” oil in which there is a foreign interest. We believe the President may, under this authority, order American companies to obligate any oil they can obtain from a foreign nation or national to other countries. These are riot merely strained textual arguments designed to give the President control over essentially domestic transactions. The fact that the oil involved has a foreign origin may be significant, not adventitious. For example, the President may determine that precisely because the United States is a leading consumer of oil from other nations, it must make a special effort to aid its allies. II. Section 232(b) of the Trade Expansion Act Section 232(b) of the Trade Expansion Act, 19 U.S.C. § 1862(b), appears to permit the President to respond to an Iranian oil cutoff by imposing a quota on oil imports into the United States. The effect of such a quota would depend on market conditions, but it would prob­ ably free additional supplies for our allies to purchase. The legal objec­ tions to this approach can be answered; the practical problems may be more serious. Section 232(b) authorizes the President to “take such action, and for such time, as he deems necessary to adjust the imports of [an] article and its derivatives so that such imports will not threaten to impair the national security.” The President can make such an adjustment if the Secretary of Commerce—formerly the Secretary of the Treasury, see Reorganization Plan No. 3 of 1979, § 5(a)(1)(B), 93 Stat. 1381—con­ ducts an investigation and finds that an article “is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security.” In March 1979, the Secretary of the Treasury completed such an investigation and concluded that imports of crude oil and oil products into the United States threatened to impair the national security.5 See 44 Fed. Reg. 18,818 (1979). It is 5 While this finding did not, of course, anticipate the Iranian oil cutoff w ith w hich w e are now concerned, it did emphasize the risks of depending on oil from countries w ith w hich the United States m ight have “political disagreement[s]" and the unreliability o f oil supplies from those nations. It even mentioned the Iranian revolutionary regim e’s reductions in oil shipments as an example. See 44 Fed. Reg. 18,818, 18,820 (1979). M oreover, in 1975 the A ttorney G eneral issued an opinion that a finding made in 1959 continued to authorize im port adjustm ents by the President. He said that no new finding was necessary in 1975, even though there had been a "drastic change from the factual situation w hich provided the basis of the 1959 finding," and even though, shortly before he issued his opinion, the authority to make such a finding had been transferred from the D irector o f the Office o f Em ergency Planning to the Secretary of the Treasury, see Pub. L. No. 93-618, § 127(d), 88 Stat. 1993 (1975). 43 Op. A tt’y Gen. No. 3 at p. 2 (1975). T he A ttorney G eneral reasoned that the President’s § 232(b) pow er to take “such action . . . as he deems necessary’’ to adjust im ports is authority to take not just C o n iin u e d 299 clear that the President’s power to “adjust” imports includes the power to impose an import quota. See Federal Energy Administration v. Algonquin SNG, Inc., 426 U.S. 548, 561, 571 (1975). We understand, however, that the President wishes to divert oil primarily to deal with the foreign policy consequences of an Iranian cutoff. It might be argued that it is inconsistent with Congress’ inten­ tions to use § 232(b) to deal with the foreign policy implications of imports. The language of the statute and its legislative history suggest that Congress expected § 232(b) to be used primarily to protect domes­ tic industries or, more generally, to deal with the domestic conse­ quences of imports. See, e.g., § 232(c), 19 U.S.C. § 1862(c). It may be, however, that an Iranian oil cutoff would threaten instability in Ameri­ can domestic markets as well as in world markets, and that a reasonable method of preventing this instability would be to limit imports; in this way the cutoff might be justified as a measure to aid the domestic economy. We do not know whether the facts support this view. More fundamentally, however, while Congress clearly focused on the domes­ tic effects of imports, it did not explicitly limit the President to consid­ ering only domestic effects. Instead, it used the term “national secu­ rity,” which ordinarily comprises matters of foreign policy. Congress did not attempt affirmatively to exclude this aspect of the normal meaning of “national security.” Since Congress used the term “national security,” we believe that the President has the authority to consider all the aspects of national security—including foreign policy—when he adjusts imports under § 232(b). The practical problems may be more difficult to solve. Section 232(b) allows the President to “adjust . . . imports.” It is difficult to construe this as authority to order the holders of oil to do a particular thing with the oil they cannot import. Consequently, § 232(b) does not give the President direct control over the oil diverted from the United States; it is subject to the vagaries of the market. This may be an inefficient, or even ineffective, way of supplying the needs of our allies. a single measure but continuing course of action, “a continuing process of m onitoring and modifying the im port restrictions, as their limitations becom e apparent and their effects changed.” Id. Courts enforced restrictions w hich the President imposed as late as 1968, even though the restrictions w ere based on the 1959 findings; the courts did not seem to doubt that those findings adequately supported the President’s action. See, e.g., G ulf Oil Corp. v. Hickel, 435 F.2d 440 (D.C. Cir. 1970). T he A ttorney G eneral’s opinion did not com m ent on the transfer of the function. It seems reasonable to conclude, how ever, that if the findings can survive the passage o f 16 years and a ‘‘drastic change" in circum stances, they can also survive a transfer of functions within an administration. Indeed, earlier this year the President imposed a G asoline Conservation Fee, see Pres. Proc. No. 4744, 45 Fed. Reg. 22,864 (1980), rescinded by Pres. Proc. No. 4766, 45 Fed. Reg. 41,899 (1980), partly on the authority of § 232(b) and the M arch, 1979, findings o f the Secretary o f the Treasury. F or these reasons, w e believe that the M arch, 1979, findings will support an im port quota imposed by the President to deal w ith an Iranian oil cutoff. O f course, if circum stances and the applicable regulations, see § 232(d), 19 U.S.C. § 1862(d), perm it, it may be m ore prudent to have the Secretary o f Com m erce make a new investigation and enter the finding appropriate to an im port quota designed to respond to an Iranian oil cutoff. 300 III. The International Energy Program The Agreement on an International Energy Program, 27 U.S.T. 1685, Nov. 18, 1974, T.I.A.S. No. 8278, is designed to share the effects of oil shortages among the nations participating in the agreement. The United States and the allies who would be most affected by an Iranian oil cutoff are participants. Certain of the participants’ obligations take effect if the total imports of all the participating nations fall more than 7 percent from the previous year, or if any one nation’s available oil supplies fall more than 7 percent. Specifically, each participant is then obligated to reduce its demand for oil by 7 percent from the previous year and share its savings among the other participants. Under § 251(a) of the Energy Policy and Conservation Act, the President has the power to issue regulations “requiring] that persons engaged in produc­ ing, transporting, refining, distributing, or storing petroleum products, take such action as he determines to be necessary for implementation of the obligations of the United States under . . . the international energy program insofar as such obligations relate to the international allocation of petroleum products.” 42 U.S.C. § 6271(a). We are advised that such regulations already exist. See 10 C.F.R. § 218.1-218.43. We understand, however, that the United States has already reduced its consumption of oil by more than 7 percent from last year. If this is true, then even if other nations’ oil supplies fell sharply, the United States would apparently have no further obligations under the Pro­ gram, and § 251(a) would not grant the President authority to order redistributions of. oil.6 For this reason, the International Energy Pro­ gram seems an unlikely source of authority for dealing with an Iranian oil cutoff. J o h n M. H a r m o n Assistant Attorney General Office of Legal Counsel 6 A rticle 22 of the Agreem ent provides that: T he G overning Board may at any time decide by unanimity to activate any appropri­ ate em ergency measures not provided for in this A greem ent, if the situation so requires. T he G overning Board is com posed of members from each participating country. A rticle 50, § 1. M easures adopted by the Board in this way may impose on the United States additional “obligations'* w ithin the meaning of § 251(a) o f the Energy Policy and C onservation A ct, although it might be argued that since the United States can veto such a measure, it cannot be said to impose an obligation. 301

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Diverting Oil Imports to United States Allies The International Em ergency Econom ic Powers Act would authorize the President, in order to deal with an Iranian cutoff of oil to United States allies, to require American oil companies and foreign entities they control to ship oil they acquire abroad to certain specified nations and in certain specified quantities. W hile there must be a "foreign interest” in the oil for the President to invoke lE E P A ’s powers, foreign interest unassociated with the nation that is creating the em ergency would be sufficient. Section 232(b) of the T rade Expansion Act would allow the President to impose a quota on oil imports for national security reasons, including reasons relating to foreign policy considerations; however, it would not give him power to direct the diversion o f oil imports to other countries. January 12, 1981 MEMORANDUM OPINION FOR THE ASSOCIATE ATTORNEY GENERAL Iran may end or reduce exports of its oil to some of our allies who are heavily dependent on Iranian oil. You have asked us whether the President has authority to divert to those allies shipments of foreign oil that would otherwise be imported into the United States. We believe the President has this authority over at least some such shipments. There are several possible sources of authority; the International Emer­ gency Economic Powers Act (IEEPA), 50 U.S.C. §§ 1701-1706 (Supp. I 1977), seems the clearest and most appropriate. I. The International Emergency Economic Powers Act We believe that the IEEPA empowers the President, in dealing with a declared national emergency, to require American oil companies and entities they control to sell any oil they acquire or can acquire abroad—except perhaps oil the company itself already owns, free of all foreign rights—and to sell it only to nations specified by the President and in quantities the President specifies. If the President enters such an order to deal with the Iranian hostage crisis, or the emergency declared in connection with the Soviet invasion of Afghanistan, he need not declare another national emergency. If the need to divert oil shipments arises from a separate emergency, that emergency should be declared. 1 'W e w ould alert you lo Congress* injunction that “emergencies are by their nature rare and brief, and are not to be equated w ith normal, ongoing problems. A national em ergency should be declared C o n tin u e d 295 Section 203(a)(1)(B) of the IEEPA, 50 U.S.C. § 1702(a)(1)(B), author­ izes the President, in dealing with a national emergency, to: investigate, regulate, direct and compel, nullify, void, pre­ vent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions in­ volving, any property in which any foreign country or a national thereof has any interest; by any person, or with respect to any property, subject to the jurisdiction of the United States. On its face this provision appears to give the President power to require American companies, and foreign entities they control,2 to ship oil they acquire abroad to certain other nations and in certain quantities. The principal difficulty with the President’s using this power is that it is unclear whether all oil acquired abroad by American companies is “property in which [a] foreign country or a national thereof has any interest.” Some oil is owned by a foreign nation or foreign national but can be acquired by an American company; this is plainly property in which there is a foreign interest, at least until after the time it is acquired. Since “any” interest will suffice, we believe that oil in which a foreign nation or national has a contract right—for example, a right to refuse to allow the oil to be shipped unless a certain royalty is paid— is also subject to the President’s power. Because the United States is not now importing oil from Iran, the foreign interest will not be that of Iran, and will probably not be that of an Iranian national; it may be argued that § 203(a)(1)(B) does not reach property in which the only foreign interest is unassociated with the nation that is the cause of the emergency. We do not believe this argument is correct, however. Section 203(a)(1)(B) refers to “any for­ eign country or a national thereof” (emphasis added), and the legisla­ tive history of the IEEPA suggests that the principal reason for the foreign interest limitation was to prevent the President from regulating “domestic” transactions, see, e.g., H.R. Rep. No. 459, 95th Cong., 1st and em ergency authorities em ployed only w ith respect to a specific set o f circum stances which constitute a real em ergency, and for no other purpose. T he em ergency should be term inated in a timely m anner w hen the factual state o f em ergency is over and not continued in effect for use in other circum stances. A state o f national em ergency should not be a norm al state o f affairs.” H.R. Rep. No. 459, 95th Cong., 1st Sess. 10 (1977). 2 A m erican corporations are clearly subject to the jurisdiction o f the United States. See Restate­ ment (Second) of Foreign Relations Law o f the United States, §§27, 30 (1965). Foreign entities they control may also be, although they may be subject to the com peting jurisdiction of the foreign country. In addition, § 203(a)(1)(B) perm its the President to “ regulate, [or] direct and com pel, . . . [the] exercising [of] any right, pow er, or privilege w ith respect to . . . any [foreign] property.” We believe this authorizes the President to require an A m erican com pany to exercise its control over foreign entities in the w ay the President directs, at least w hen the direction furthers the purposes of other regulations imposed under the IE E P A . 296 Sess. 11 (1977), not to limit the foreign nations whose interests might be affected. Moreover, Congress probably expected the IEEPA to be used for emergencies—international monetary disorders, for example—that do not originate in any single country. Similarly, a diversion of oil imports might be an effort to coordinate our international trade in a way that serves the economic and political objectives the President is pursuing in dealing with a declared emergency. If it were, we believe that it would be the sort of action Congress expected the President to take under the IEEPA. Some oil located abroad may be entirely owned by an American corporation and not subject to any foreign nation’s or national’s prop­ erty or contract rights.3 It is much more difficult to conclude that there is a foreign interest in this oil. It seems unlikely, although perhaps arguable, that a nation’s ability to tax a quantity of oil, seize it or prevent its shipment by asserting eminent domain, and otherwise exert jurisdiction over it, constitute an “interest” in the oil. Some courts have suggested that a foreign nation has an “interest”—within the meaning of § 5(b) of the Trading with the Enemy Act, the predecessor of the IEEPA—in any item it exports. Those courts reasoned that by selling its products abroad a nation helps “to sustain its internal economy and provide it with foreign exchange.” See United States v. Broverman, 180 F. Supp. 631, 636 (S.D.N.Y. 1959); Heaton v. United States, 353 F.2d 288, 291-92 (9th Cir. 1965). But we have substantial doubt that this is a sufficiently direct interest to permit regulation under § 203(a)(1)(B) of the IEEPA, at least if the object of the regulation is not to disrupt a nation’s internal economy or deprive it of foreign exchange.4 3 W e express no opinion on the extent to w hich American corporations' acquisitions o f oil from foreign nations may be regulated retroactively under the IEE PA . 4W e have these doubts for several reasons. First, the language of § 203(a)(1)(B) suggests that the term “interest” should not be interpreted in a way that has no connection to its usual legal meaning. Section 203(a)(1)(B) refers to property in w hich a “foreign country or a national thereof has any interest” (emphasis added); this may suggest that the drafters intended to reach only those kinds of interests of foreign nations which could also be held by individuals. M oreover, in describing the President’s powers, § 203(a)(1)(B) uses highly inclusive language—“investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, w ithholding, use, transfer [etc.]” — that was evidently intended to cover a wide variety of possible actions. Section 203(a)(1)(B) does not use com parably inclusive language in describing the range o f foreign interests covered. This may suggest that the drafters o f the IEE PA did not intend the term '‘interest” to be extraordinarily inclusive. In ordinary legal usage, a nation would not have an “ interest” in a piece of property unless it owned it or had an indirect, partial, contingent, or future interest in it, or a contract right to it; one would not ordinarily say that a nation had an “interest” in all the property located w ithin its borders. Second, Congress clearly intended that the President not use the IE E P A to regulate “w holly dom estic” transactions. See, e.g., H.R. Rep. No. 459, 95th C ong., 1st Sess. 11 (1977). W e recognize that § 203(a)(1)(B), enacted as part of the IE E P A in 1977, contains the same language as § 5(b) of the Trading with the Enem y A ct; the cases cited in the text interpreted this language. C ongress presum ­ ably knew o f these cases when it enacted § 203(a)(1)(B) in this form. But if w e w ere to adopt the broadest possible interpretation of these cases—that a nation has an “interest” in property, within the meaning of § 203(a)(1)(B), w henever transactions in that property can have an im portant effect on its econom y —we would, allow the President to regulate w holly domestic transactions, in violation of C ongress’ clear intentions; foreign countries' econom ies may be substantially affected by w holly dom estic American transactions. We see no other principled interpretation o f the term “foreign . . . interest” in § 203(a)(1)(B) that would allow the President to regulate transactions in oil that is located C o n tin u e d 297 The President may be able to reach transactions in American-owned oil located abroad under a different provision of the IEEPA, § 203(a)(l)(A)(i), 50 U.S.C. § 1702(a)(l)(A)(i). That provision authorizes the President, in dealing with a national emergency, to “investigate, regulate, or prohibit . . . any transactions in foreign exchange . . . by any person, or with respect to any property, subject to the jurisdiction of the United States.” An American company which owned oil located abroad would presumably have to deal in foreign exchange in order to sell the oil; the foreign exchange transactions associated with such sales might be regulated in a way that compelled the company to comply with the President’s directions. While this provision of the IEEPA on its face seems to permit such regulation, some substantial objections can be raised. Arguably, Congress envisioned that the § 203(a)(l)(A)(i) au­ thority to regulate transactions in foreign exchange would be invoked only where the President’s concern was with the use of foreign ex­ change in the transaction. Congress probably did not intend the Presi­ dent to take advantage of the fact that foreign exchange was involved solely as a means of reaching transactions that he otherwise could not regulate. In other words, in enacting § 203(a)(1)(B) Congress may have intended to limit the President’s power over transactions in property to property in which there was a foreign interest; if so, Congress would not have intended the President to use his authority over transactions in foreign exchange to circumvent that limitation. For these reasons, we have substantial doubt about the President’s authority under the IEEPA to regulate transactions in oil that is located abroad but entirely owned by American companies. To the extent that the reasons for regulating such transactions are related to the fact that the transactions involve foreign exchange, the argument that § 203(a)(l)(A)(i) grants the Presi­ dent authority to regulate them is enhanced. On the facts as known to us, however, it is difficult to discern such a relationship. Finally, it can be argued that while § 203(a)(1)(B) authorizes the President to “direct and compel . . . [the] acquisition” of oil in which there is a foreign interest, the foreign interest disappears as soon as an American company acquires the oil, and the President loses his power to direct the oil to a destination or otherwise to control its sale. For several reasons, we believe this argument is incorrect. As far as the text of the Act is concerned, the President has the power to “regulate” the acquisition of the oil; this suggests that he may order that it not be acquired unless it will be shipped to the destination he has designated. In addition, the President may “regulate [or] direct and compel . . . any . . . use, transfer, . . . transportation . . . dealing in . . . or trans­ actions involving” property in which there is a foreign interest. By within a foreign nation but w holly ow ned by an A m erican corporation, at least when the purpose of the regulation is not to disrupt the foreign nation’s econom y. See a/so Permian Basin Area Rate Cases, 390 U.S. 747, 777, 780 (1968). 298 requiring oil to be shipped from one foreign country to another, the President appears to be simply regulating or directing a transfer, trans­ portation, or dealing in the oil. Moreover, the President may “regulate, direct and compel, nullify, void, prevent or prohibit, any . . . dealing in, or exercising any right, power, or privilege with respect to” oil in which there is a foreign interest. We believe the President may, under this authority, order American companies to obligate any oil they can obtain from a foreign nation or national to other countries. These are riot merely strained textual arguments designed to give the President control over essentially domestic transactions. The fact that the oil involved has a foreign origin may be significant, not adventitious. For example, the President may determine that precisely because the United States is a leading consumer of oil from other nations, it must make a special effort to aid its allies. II. Section 232(b) of the Trade Expansion Act Section 232(b) of the Trade Expansion Act, 19 U.S.C. § 1862(b), appears to permit the President to respond to an Iranian oil cutoff by imposing a quota on oil imports into the United States. The effect of such a quota would depend on market conditions, but it would prob­ ably free additional supplies for our allies to purchase. The legal objec­ tions to this approach can be answered; the practical problems may be more serious. Section 232(b) authorizes the President to “take such action, and for such time, as he deems necessary to adjust the imports of [an] article and its derivatives so that such imports will not threaten to impair the national security.” The President can make such an adjustment if the Secretary of Commerce—formerly the Secretary of the Treasury, see Reorganization Plan No. 3 of 1979, § 5(a)(1)(B), 93 Stat. 1381—con­ ducts an investigation and finds that an article “is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security.” In March 1979, the Secretary of the Treasury completed such an investigation and concluded that imports of crude oil and oil products into the United States threatened to impair the national security.5 See 44 Fed. Reg. 18,818 (1979). It is 5 While this finding did not, of course, anticipate the Iranian oil cutoff w ith w hich w e are now concerned, it did emphasize the risks of depending on oil from countries w ith w hich the United States m ight have “political disagreement[s]" and the unreliability o f oil supplies from those nations. It even mentioned the Iranian revolutionary regim e’s reductions in oil shipments as an example. See 44 Fed. Reg. 18,818, 18,820 (1979). M oreover, in 1975 the A ttorney G eneral issued an opinion that a finding made in 1959 continued to authorize im port adjustm ents by the President. He said that no new finding was necessary in 1975, even though there had been a "drastic change from the factual situation w hich provided the basis of the 1959 finding," and even though, shortly before he issued his opinion, the authority to make such a finding had been transferred from the D irector o f the Office o f Em ergency Planning to the Secretary of the Treasury, see Pub. L. No. 93-618, § 127(d), 88 Stat. 1993 (1975). 43 Op. A tt’y Gen. No. 3 at p. 2 (1975). T he A ttorney G eneral reasoned that the President’s § 232(b) pow er to take “such action . . . as he deems necessary’’ to adjust im ports is authority to take not just C o n iin u e d 299 clear that the President’s power to “adjust” imports includes the power to impose an import quota. See Federal Energy Administration v. Algonquin SNG, Inc., 426 U.S. 548, 561, 571 (1975). We understand, however, that the President wishes to divert oil primarily to deal with the foreign policy consequences of an Iranian cutoff. It might be argued that it is inconsistent with Congress’ inten­ tions to use § 232(b) to deal with the foreign policy implications of imports. The language of the statute and its legislative history suggest that Congress expected § 232(b) to be used primarily to protect domes­ tic industries or, more generally, to deal with the domestic conse­ quences of imports. See, e.g., § 232(c), 19 U.S.C. § 1862(c). It may be, however, that an Iranian oil cutoff would threaten instability in Ameri­ can domestic markets as well as in world markets, and that a reasonable method of preventing this instability would be to limit imports; in this way the cutoff might be justified as a measure to aid the domestic economy. We do not know whether the facts support this view. More fundamentally, however, while Congress clearly focused on the domes­ tic effects of imports, it did not explicitly limit the President to consid­ ering only domestic effects. Instead, it used the term “national secu­ rity,” which ordinarily comprises matters of foreign policy. Congress did not attempt affirmatively to exclude this aspect of the normal meaning of “national security.” Since Congress used the term “national security,” we believe that the President has the authority to consider all the aspects of national security—including foreign policy—when he adjusts imports under § 232(b). The practical problems may be more difficult to solve. Section 232(b) allows the President to “adjust . . . imports.” It is difficult to construe this as authority to order the holders of oil to do a particular thing with the oil they cannot import. Consequently, § 232(b) does not give the President direct control over the oil diverted from the United States; it is subject to the vagaries of the market. This may be an inefficient, or even ineffective, way of supplying the needs of our allies. a single measure but continuing course of action, “a continuing process of m onitoring and modifying the im port restrictions, as their limitations becom e apparent and their effects changed.” Id. Courts enforced restrictions w hich the President imposed as late as 1968, even though the restrictions w ere based on the 1959 findings; the courts did not seem to doubt that those findings adequately supported the President’s action. See, e.g., G ulf Oil Corp. v. Hickel, 435 F.2d 440 (D.C. Cir. 1970). T he A ttorney G eneral’s opinion did not com m ent on the transfer of the function. It seems reasonable to conclude, how ever, that if the findings can survive the passage o f 16 years and a ‘‘drastic change" in circum stances, they can also survive a transfer of functions within an administration. Indeed, earlier this year the President imposed a G asoline Conservation Fee, see Pres. Proc. No. 4744, 45 Fed. Reg. 22,864 (1980), rescinded by Pres. Proc. No. 4766, 45 Fed. Reg. 41,899 (1980), partly on the authority of § 232(b) and the M arch, 1979, findings o f the Secretary o f the Treasury. F or these reasons, w e believe that the M arch, 1979, findings will support an im port quota imposed by the President to deal w ith an Iranian oil cutoff. O f course, if circum stances and the applicable regulations, see § 232(d), 19 U.S.C. § 1862(d), perm it, it may be m ore prudent to have the Secretary o f Com m erce make a new investigation and enter the finding appropriate to an im port quota designed to respond to an Iranian oil cutoff. 300 III. The International Energy Program The Agreement on an International Energy Program, 27 U.S.T. 1685, Nov. 18, 1974, T.I.A.S. No. 8278, is designed to share the effects of oil shortages among the nations participating in the agreement. The United States and the allies who would be most affected by an Iranian oil cutoff are participants. Certain of the participants’ obligations take effect if the total imports of all the participating nations fall more than 7 percent from the previous year, or if any one nation’s available oil supplies fall more than 7 percent. Specifically, each participant is then obligated to reduce its demand for oil by 7 percent from the previous year and share its savings among the other participants. Under § 251(a) of the Energy Policy and Conservation Act, the President has the power to issue regulations “requiring] that persons engaged in produc­ ing, transporting, refining, distributing, or storing petroleum products, take such action as he determines to be necessary for implementation of the obligations of the United States under . . . the international energy program insofar as such obligations relate to the international allocation of petroleum products.” 42 U.S.C. § 6271(a). We are advised that such regulations already exist. See 10 C.F.R. § 218.1-218.43. We understand, however, that the United States has already reduced its consumption of oil by more than 7 percent from last year. If this is true, then even if other nations’ oil supplies fell sharply, the United States would apparently have no further obligations under the Pro­ gram, and § 251(a) would not grant the President authority to order redistributions of. oil.6 For this reason, the International Energy Pro­ gram seems an unlikely source of authority for dealing with an Iranian oil cutoff. J o h n M. H a r m o n Assistant Attorney General Office of Legal Counsel 6 A rticle 22 of the Agreem ent provides that: T he G overning Board may at any time decide by unanimity to activate any appropri­ ate em ergency measures not provided for in this A greem ent, if the situation so requires. T he G overning Board is com posed of members from each participating country. A rticle 50, § 1. M easures adopted by the Board in this way may impose on the United States additional “obligations'* w ithin the meaning of § 251(a) o f the Energy Policy and C onservation A ct, although it might be argued that since the United States can veto such a measure, it cannot be said to impose an obligation. 301

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Authority of the Special Counsel, Merit Systems Protection Board, Over Anonymous Allegations of Wrongdoing Anonymous complaints do not trigger the statutory scheme by which the Office of the Special Counsel (OSC), Merit Systems Protection Board, investigates allegations of wrongdoing within an agency; however, such complaints may be forwarded to the head o f the affected agency by the OSC in its discretion, to be dealt w ith by the agency. July 1, 1981 M EM ORANDUM OPIN IO N FO R T H E SPECIA L COUNSEL, M ER IT SYSTEMS PR O TEC TIO N BOARD This responds to your inquiry whether the Office of the Special Counsel (OSC), Merit Systems Protection Board, has the statutory authority to forward anonymous allegations of wrongdoing to the heads of the affected agencies,1 pursuant to 5 U.S.C. § 1206(b)(2).2 For ‘This question arose because of our earlier opinion that OSC may only forward complaints received from federal employees. Memorandum Opinion for the General Counsel, Nuclear Regulatory Commission, from Larry L. Simms, Deputy Assistant Attorney General, Office of Legal Counsel, March 13, 1981. [ N o t e : The March 13, 1981, Memorandum Opinion appears in this volume at p .77 supra Ed.] 2 Section 1206(bXl) and (2) of Title 5, United States Code, states: (1) In any case involving— (A) any disclosure of information by an employee or applicant for employment which the employee or applicant reasonably believes evidences— (i) a violation of any law, rule, or regulation; or (ii) mismanagement, a gross waste of funds, an abuse o f authonty, o r a substantial and specific danger to public health or safety, if the disclosure ts not specifically prohibited by law and if the information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs, or (B) a disclosure by an employee or applicant for employment to the Special Counsel o f the Merit Systems Protection Board, or to the Inspector General o f an agency or another employee designated by the head of the agency to receive such disclosures o f information which the employee or applicant reasonably believes evidences— (1) a violation of any law, rule or regulation; or (ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; the identity of the employee or applicant may not be disclosed without the consent o f the employee or applicant during any investigation under subsection (a) of this section or under paragraph (3) of this subsection, unless the Special Counsel deter­ mines that the disclosure of the identity of the employee or applicant is necessary in order to carry out the functions of the Special Counsel. (2) W henever the Special Counsel receives information o f the type described in paragraph (1) of this subsection, the Special Counsel shall promptly transmit such information to the appropriate agency head. 215 reasons stated hereafter, w e do not believe that the statute was intended to cover such material and we therefore conclude that the material may not be forw arded as (b)(2) material. Such material may be forwarded to afTected agencies, however, without the provision of (b)(2) being trig­ gered. Forw arding information pursuant to (b)(2) triggers an elaborate statu­ tory scheme. OSC may require an agency to conduct an investigation and submit a detailed written report within 60 days. 5 U.S.C. § 1206(b)(3)(A), (4), 5 C.F.R. § 1252.2 (1980). This report must be submitted to Congress, the President and the Special Counsel, 5 U.S.C. § 1206(b)(5)(A), and possibly the Office of Management and Budget. Even if OSC does not require an investigation, the head of the agency must make a written report within 60 days regarding action taken. Id., § 1206(b)(7), 5 C.F.R. § 1252.3 (1980). Failure to file reports may be reported to Congress and the President. 5 U.S.C. § 1206(b)(5)(A). This scheme was designed to encourage federal workers to “blow the whis­ tle” if they suspect the existence of wrongdoing in their agency. See 124 Cong. Rec. 27,548, 27,569-72, 34,100, 25,727-28 (1978). It was meant both to protect them from reprisals by setting up stringent safeguards to protect their identity, see 5 U.S.C. § 1206(b)(8), 5 C.F.R. § 1250.3(c) and App. I (1980), and to assure them that their complaints would be looked into seriously by requiring mandatory reports from the agencies. Permitting individuals who are unwilling to give their names, even with these statutory protections, to trigger these provisions would not only consume the finite resources of OSC and the agencies but would also turn the law into w hat its sponsors explicitly said it was not—“ an open invitation to any disgruntled Federal employee . . . to make false allegations o f wrongdoings by a Federal agency.” 124 Cong. Rec. 27,572 (1978) (remarks of Sen. Dole). W e believe that the statute requires the identification o f the com­ plainant in order to effect several purposes. First, identification ensures that the complainant is “ an employee or applicant for employment” as required by the statute. 5 U.S.C. § 1206(b)(1)(A), (B). See also 5 U.S.C. § 1206(b)(3)(B). Second, it allows the Special Counsel to solicit addi­ tional information, if necessary, from the complainant when determin­ ing w hether there is a “substantial likelihood” that the information discloses a violation o f the law and thus to eliminate the drain of investigating fraudulent or frivolous claims. Third, it permits the Spe­ cial Counsel to comply with the mandate of the statute that he “sh a ir inform the complainant of the agency’s report on its investigation or action. 5 U.S.C. § 1206(b)(5)(A), (7) (emphasis added). This is not to say that OSC must ignore anonymous complaints. Nothing in the statute forbids OSC from forwarding such complaints to an agency—the statute only precludes them being sent as official (b)(2) 216 material.3 Therefore, while anonymous information should not be for­ warded pursuant to 5 U.S.C. § 1206(b)(2), and reports on it should not be required pursuant to 5 U.S.C. § 1206(b)(3) and (7), the information may be forwarded at OSC’s discretion—and dealt with at the agency’s discretion—in order to identify possible problems. L a r r y L . S im m s Deputy Assistant Attorney General Office o f Legal Counsel 3 In addition, OSC is empowered to investigate possible prohibited personnel practices, even in the absence of an allegation, 5 U.S.C. § 1206(a)(3), and several other classes of improper conduct, 5 U S.C. § 1206(e), 5 C F.R § 1251 1(b), (c), regardless of the source.

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History of Refusals by Executive Branch Officials to Provide Information Demanded by Congress [The follow ing two m em oranda, prepared by the Office of Legal Counsel at the request of the Attorney G eneral, describe instances since the founding of the Republic in w hich officials in the Executive Branch have refused to disclose inform ation o r produce docum ents requested by Congress. T he first m em orandum , dated D ecem ber 14, 1982, sets forth exam ples of situations in which a President has personally directed that inform ation be w ithheld, relying on the doctrine of executive privilege. T he second m em orandum , dated January 27, 1983, docum ents incidents w here the Attorney G eneral or som e other executive official refused to provide inform ation or d o cu m en ts to C o n g ress in situations involving law en fo rc em en t, security, o r p ersonnel investigations. . . .] PART I— Presidential Invocations of Executive Privilege Vis-a-Vis Congress December 14, 1982 MEMORANDUM FOR THE ATTORNEY GENERAL This memorandum briefly describes those incidents in which a President personally directed the withholding of information from Congress.1Included are incidents in which a President found it necessary to withhold specific documents or information, as well as general directives of a President concerning the withholding of information from Congress. No effort has been made to catalogue the numerous instances in which information was withheld from Congress by executive officers other than the President; nor does this survey discuss the countless examples of full disclosure by the Executive. The objective of the memorandum is neither to show how frequently the Executive Branch has refused congressional requests for informa­ tion, nor to demonstrate how often an accommodation between the branches has been achieved. Rather, the memorandum seeks to show that presidentially 1 Although an attempt has been made to be as thorough as possible, no claim is made that the following list is comprehensive. In this regard, we note Deputy Assistant Attorney General Mary Lawton’s statement in a memorandum to Rep. William S. Moorhead, dated Apr 25, 1973. In response to your request . . I regret that it is not physically possible to furnish you with a comprehensive list o f presidential refusals of information to Congress. To give you all of the instances of such refusals since the beginning of the Republic would require an amount of historical research which the Office of Legal Counsel lacks the resources for handling. In addition, there is a categorization problem of distinguishing the relatively few instances of exercise of Executive Privilege per se [i.e . a refusal to disclose by the President personally] from the many instances of agreed accommodations . . for nonappearance of witnesses, nondisclosure or partial disclosure. 751 mandated refusals to disclose information to Congress—though infrequent— are by no means unprecedented acts of this or any other Administration. 1. Washington Administration St. C lair Incident On March 27, 1792, the House of Representatives established a congressional committee to investigate the failure of General St. Clair’s military expedition against the Indians. The House authorized the committee “ to call for such persons, papers, and records, as may be necessary to assist their inquiries.” 2 The committee subsequently asked the President for those papers pertaining to the St. Clair campaign. Since this was the first occasion in which Congress had established a committee to investigate the performance of the Executive and had authorized it to request documents from the President, and wishing “ that so far as it should become a precedent, it should be rightly conducted,” 3 President Washington held a meeting with his Cabinet, attended by Jefferson, Hamilton, Randolph and Knox. Jefferson described the conclusions reached by the Nation’s first Cabinet: We had all considered, and were of one mind, first, that the House was an inquest, and therefore might institute inquiries. Second, that it might call for papers generally. Third, that the Executive ought to communicate such papers as the public good would perm it, and ought to refuse those, the disclosure c f which would injure the public: consequently were to exercise a discretion. Fourth, that neither the committees nor House had a right to call on the Head of a Department, who and whose papers were under the President alone; but that the committee should instruct their chairman to move the House to address the President.141 Although the Cabinet “agreed in this case, that there was not a paper which might not be properly produced,” 5 the President apparently felt it advisable nevertheless to negotiate with Congress a non-confrontational resolution of the problem. Jefferson thereupon agreed to speak individually to members of the House committee in orderto “bring them by persuasion into the right channel.” 6 Jefferson’s conciliation efforts were successful, for on April 4, 1792, the House resolved, that the President of the United States be requested to cause the proper officers to lay before this House such papers of a public 2 3 Annals of Cong. 493 (1792) 3 1 The Writings of Thomas Jefferson 303 (Lipscomb ed , 1905). 4 Id. at 3 03-04 (emphasis added) 5 Id. at 305. 6 Id. See generally Younger, “Congressional Investigations and Executive Secrecy. A Study in the Separation c f P o w e r s 20 U Pitt L Rev. 755 , 757 (1959). 752 nature, in the Executive Department, as may be necessary to the investigation of the causes of the failure of the late expedition under Major General St. Clair.171 Correspondence Involving United States Minister to France In 1794, the Senate requested by resolution correspondence between the United States Minister to France and the Republic of France, and between the Minister and the State Department.8 President Washington submitted certain of the correspondence requested, but withheld “ those particulars which, in my judgment, for public considerations, ought not to be communicated.” 9 The Jay Treaty On March 24, 1796, the House of Representatives requested by resolution that the President disclose to the House his instructions to the United States Minister who negotiated the Jay Treaty with Great Britain, along with correspondence and documents relative to that Treaty. Implementation of the Treaty apparently required an appropriation which the House was called upon to vote.10 President Washington denied the House’s right to demand and receive any of the papers requested. Though the President had provided “ all the papers affecting the negotiation with Great Britain” to the Senate in the course of its deliberations on the Treaty, Washington determined that the House had no legitimate claim to those papers: The nature of foreign negotiations requires caution; and their success must often depend on secrecy; and even, when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or con­ templated would be extremely impolitic: for this might have pernicious influence on future negotiations; or produce immediate inconveniences, perhaps danger and mischief, in relation to other Powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making Treaties in the President with the advice and consent of the Senate; the principle on which the body was formed confining it to a small number of members. Toadmit, then, aright in the House of Representatives to demand, and to have, as a matter of course, all the papers respecting a negotiation with a foreign Power, would be to establish a dan­ gerous precedent. 7 3 Annals of Cong. 536 (1792) (emphasis added). 8 Senate Journal, 3d Cong , 1st Sess. 42 (1794). 9 1 J Richardson, Messages and F^pers of the Presidents 152 (1896) 10 See W. Binkley, President and Congress 53 -4 (3d rev. 1947). 753 Subsequently, the House debated Washington’s refusal for a full month, but took no action." It is highly instructive, however, that during the debate Rep. James Madison, although disagreeing with President Washington’s message in some respects, acknowledged on the House floor, that the Executive had a right, under a due responsibility, also, to withhold information, when of a nature that did not permit a disclosure of it at the time. And if the refusal of the President had been founded simply upon a representation, that the state of the business within his department, and the contents of the papers asked for, required it, although he might have regretted the refusal, he should have been little disposed to criticize it.1121 2. Adams Administration D iplom atic M aterial Concerning United States Representatives to France In 1798 the House of Representatives by resolution requested from the Presi­ dent documents containing instructions to, and dispatches from, representatives of the United States to France.13 On April 3, 1798, President Adams transmitted some of that material to both Houses, but omitted “ some names and a few expessions descriptive of the persons” involved.14 3. Jefferson Administration The Burr Conspiracy In January 1807, the House of Representatives by resolution requested that the President lay before this House any information in possession of the Ex­ ecutive, except such as he may deem the public welfare to require not to be disclosed, touching any illegal combination of private individuals against the peace and safety of the Union, or any military expedition planned by such individuals against the ter­ ritories of any Power in amity with the United States; together 11 5 Annals o f Cong. 760 (1796); see id. at 426-783. The House did pass two resolutions, one declaring that the House had authonty to consider the expediency of carrying a treaty into effect, the second that the House need not state the purpose for which it required information from the Executive. See id. at 771, 782-83. 12 Id. at 773. 13 House Journal, 5th C ong., 2d Sess. 249 (1798). 14 1 Richardson, supra, at 265. 754 with the measures which the Executive has pursued and proposes to take for suppressing or defeating the same.1'51 President Jefferson replied by detailing the activities of Aaron Burr, but declined to mention the names of other alleged participants. Jefferson declared: The mass of what I have received in the course of these transac­ tions is voluminous, but little has been given under the sanction of an oath so as to constitute formal and legal evidence. It is chiefly in the form of letters, often containing such a mixture of rumors, conjectures, and suspicions as renders it difficult to sift out the real facts and unadvisable to hazard more than general outlines, strengthened by concurrent information or the particular cred­ ibility of the relator. In this state of the evidence, delivered sometimes, too, under the restriction of private confidence, nei­ ther safety nor justice will permit the exposing names, except that of the principal actor, whose guilt is placed beyond question.1'61 4. Monroe Administration Stewart Incident In 1825, the House of Representatives requested by resolution that the Presi­ dent provide the Congress with documents concerning charges against certain naval officers, so far as he deemed such disclosure compatible with the public interest.17 President Monroe refused to submit the documents, stating: In consequence of several charges which have been alleged against Commodore Stewart, touching his conduct while com­ 15 16 Annals of Cong. 336 (1806) (emphasis added). Professor Raoul Berger has argued that the exception clause in the House resolution refutes any argument that Jefferson's subsequent withholding of documents was based on an executive privilege R. BeTger, Executive Privilege: A Constitutional Myth 179-81 (1974) (descnbing Jefferson’s explanation for withholding information as “ gratuitous” ). See also Cox, Executive Privilege, 122 U f t L. Rev. 1383, 1397-98 (1974) (arguing that those historical examples of executive withholding which are preceded by a congressional authorization to withhold do not qualify as examples o f executive pnvilege) One could just as well read the exception clause, however, as an early illustration of congressional recognition of the executive privilege. See § 1, C , supra, note 19 infra. Moreover, it is highly unlikely Jefferson actually relied upon the exception clause as the basis for withholding information from the House, given the conclusions he reached while serving in President Washington’s Cabinet, see § 1, A, supra, and given the views he expressed in a letter to the United States District Attorney for Virginia, who was then in charge of the Burr prosecution* Reserving the necessary right o f the President of the U.S. to decide, independently c f all other authority, what papers, coming to him as President, the public interests perm it to be communicated, & to whom, I assure you of my readiness under that restriction, voluntanly to furnish . . whatever the purposes of justice may require. 9 The W ntings of Thomas Jefferson 55 (P. Ford ed 1898) Professor Berger also fails to note other occasions on which President Jefferson let it be known that he regarded himself free to withhold certain “ confidential” information “ given for my information in the discharge of my executive functions, and which my duties & the public interest forbid me to make public.” Id . at 63-64 (certificate to the court in Burr prosecution). 16 1 Richardson, supra, at 412 17 House Journal, 18th Cong , 2d Sess. 102-03 (1825). 755 manding the squadron of the United States [at] sea, it has been deemed proper to suspend him from duty and to subject him to trial on those charges. It appearing also that some of those charges have been communicated to the Department by Mr. Prevost, political agent at this time of the United States at Peru . . . and that charges have likewise been made against him by citizens of the United States engaged in commerce in that quarter, it has been thought equally just and proper that he should attend here, as well to furnish the evidence in his possession applicable to the charges exhibited against Commodore Stewart as to answer such as have been exhibited against himself. In this stage the publication of those documents might tend to excite prejudices which might operate to the injury of both. It is important that the public servants in every station should perform their duty with fidelity, according to the injunctions of the law and the orders of the Executive in fulfillment thereof. It is peculiarly so that this should be done by the commanders of our squadrons, especially on distant seas, and by political agents who represent the United States with foreign powers. . . . It is due to their rights and to the character of the Government that they be not censured without just cause, which cannot be ascertained until, on a view of the charges, they are heard in their defense, and after a thorough and impartial investigation of their conduct. Under these circum­ stances it is thought that a communication at this time of those documents would not comport with the public interest nor with what is due to the parties concerned."81 5. Jackson Administration19 C orrespondence Between United States and the Republic c f Buenos Aires On December 28, 1832, President Jackson refused to provide the House of Representatives with the copies o f correspondence between the United States and the Republic of Buenos Aires and instructions given to the United States charge d ’affairs there, that it had requested. President Jackson replied that since negotia­ 18 2 Richardson, supra, at 278. 19 Former Columbia Law Professor and current Federal District Judge Abraham D. Sofaer has noted: Available historical sources reveal that, although much information was provided voluntarily, all Presidents from Washington to Jackson withheld large quantities of material, especially diplomatic correspondence, from their voluntary transmittals. Congress frequently requested the information thus withheld, and Presidents usually complied. Rar more often than not, requests for information on sensitive issues contained qualifications authonzing the President to withhold material the disclosure of which might prejudice the nation. Qualifications o f information requests dealing with such important issues as the Burr conspiracy exemplify a tradition of legislative deference and trust, surely worth considerable weight in the debate about the discretion inherently possessed by the President. Sofaer, Book Review, 88 Harv. L Rev 281, 289(1974) (reviewing R. Berger, Executive Privilege: A Constitutional Myth) 756 tions with the Republic had only been suspended and not broken off, it would “ not be consistent with the public interest to communicate the correspondence and instructions requested by the House so long as the negotiation shall be pending.” 20 Negotiations with Great Britain Over the Northeastern Boundary In response to the Senate’s request for information regarding negotiations carried on with Great Britain over the Northeastern Boundary, and particularly with respect to the Maine settlement, President Jackson informed the Senate on March 2, 1833, that negotiations with Great Britain were in progress and that in the meantime it was “ not deemed compatible with the public interest” to communicate the conditional arrangements made with the State of Maine.21 The House of Representatives also requested information concerning the settlement of the Northeastern Boundary, and on January 6,1835, President Jackson advised the House that it would be “ incompatible with the public interest” to communi­ cate such information.22 However, the President did furnish this information to the Senate at the next session, stating that “ as the negotiation was undertaken under the special advice of the Senate, I deem it improper to withhold the information which the body has requested, submitting to them to decide whether it will be expedient to publish the correspondence before the negotiation has been closed.” 23 Bank o f the United States Document On December 12, 1833, President Jackson responded to a resolution of the Senate requesting him to provide “ ‘a copy of the paper which has been published, and which purports to have been read by him to the heads of the Executive Departments . . . relating to the removal of the deposits of the public money from the Bank of the United States and its offices.’” President Jackson declined to provide the document on the ground that the Legislature had no constitutional authority to “ require of me an account of any communication, either verbally or in writing, made to the heads of Departments acting as a Cabinet council . . . [nor] might I be required to detail to the Senate the free and private conversations I have held with those officers on any subject relating to their duties and my own.” 24 Correspondence with France On February 6, 1835, President Jackson furnished extracts from the dispatches between the United States and the government of France that the House of 20 2 Richardson, supra, at 608-09 21 Id. at 637. 22 3 Richardson, supra, at 127 23 Id. at 229-30. 24 Id. at 36. 757 Representatives had requested, declining to send the full documents on the ground that it was not at that time in the public interest to do so.25 Removal c f the Surveyor General On February 10, 1835, President Jackson sent a message to the Senate declining to comply with its resolution which requested the production of copies of charges made to the President against Gideon Fitz, the Surveyor General, which resulted in Mr. Fitz’s removal from office. The resolution based the Senate’s need for the documents on: 1) the need to nominate Mr. Fitz’s successor, and 2) a pending Senate investigation into fraud in the sale of lands. The President refused to furnish the documents on the ground that they related to subjects which belonged exclusively to the functions of the Executive. In addition, the President said that disclosure of the documents would subject the motives of the President in removing Mr. Fitz to the review of the Senate when not sitting as judges in an impeachment proceeding, and that the Executive’s acquies­ cence in the Fitz case might be used by Congress as a precedent for similar and repeated requests. The President said: This is another of those calls for information made upon me by the Senate which have, in my judgment, either related to the subjects exclusively belonging to the executive department or otherwise encroached on the constitutional powers of the Ex­ ecutive. Without conceding the right of the Senate to make either of these requests, I have yet, for the various reasons heretofore assigned in my several replies, deemed it expedient to comply with several of them. It is now, however, my solemn conviction that I ought no longer, from any motive nor in any degree, to yield to these unconstitutional demands. Their continued repetition imposes on m e, as the representative and trustee of the American people, the painful but imperious duty of resisting to the utmost any further encroachment on the rights of the Executive. . . . . Such a result, if acquiesced in, would ultimately subject the independent constitutional action of the Executive in a matter of great national concernment to the domination and control of the Senate. . . . I therefore decline a compliance with so much of the resolution of the Senate as requests “ copies of the charges, if any,” in relation to Mr. Fitz, and in doing so must be distinctly understood as neither affirming nor denying that any such charges were made. . . .|261 25 Id. at 129 26 Id. at 132-34. 758 6. lyier Administration Correspondence Regarding Negotiations with Great Britain Over the Northeastern Boundary In response to the House of Representatives’ request for all correspondence not previously communicated regarding the United States’ negotiation with Great Britain over the Northeastern Boundary, President Tyler withheld the documents and sent a February 26, 1842, message to Congress saying that “ in my judgment no communication could be made by me at this time on the subject of its resolution without detriment or danger to the public interests.” 27 Information Regarding Executive Appointments On March 23, 1842, President Tyler refused to comply with a House resolution requesting that the President and the heads of departments communicate the names of such Members of the 26th and 27th Congresses who had applied for office, what office, and whether such application had been made in person, in writing, or through friends. President Tyler refused to disclose such information on the ground that it was by nature confidential, the disclosure of which could serve no “ useful object connected with a sound and constitutional administration of the Government in any of its branches,” and further, that compliance with the resolution which has been transmitted to me would be a surrender of duties and powers which the Constitution has conferred exclusively on the Executive, and therefore such compliance can not be made by me nor by the heads of Depart­ ments by my direction. The appointing power, so far as it is bestowed on the President by the Constitution, is conferred with­ out reserve or qualification. The reason for the appointment and the responsibility of the appointment rest with him alone. I can not perceive anywhere in the Constitution of the United States any right conferred on the House of Representatives to hear the reasons which an applicant may urge for an appointment to office under the executive department, or any duty resting upon the House of Representatives by which it may become responsible for any such appointment.1281 Treaty to Suppress Slave Trade In response to the House of Representatives’ request to furnish, “ ‘so far as may be compatible with the public interest,’” a copy of the quintuple treaty between the five powers of Europe for the suppression of the African slave trade 27 4 Richardson, supra, at 101. 28 i'd. at 105-06. 759 and certain correspondence with respect to it, President Tyler replied on June 20, 1842, that he had not received an authentic copy of the treaty and that “ [i]n regard to the other papers requested, although it is my hope and expectation that it will be proper and convenient at an early day to lay them before C ongress,. . . yet in my opinion a communication o f them to the House of Representatives at this time would not be compatible with the public interest.” 29 Information Regarding Steps Taken to Obtain Recognition c f American Claim s by Mexican Government The Senate had requested the President to provide information, “ so far as he might deem it compatible with the public interest,” concerning what measures, if any, had been taken to obtain recognition by the Mexican government of certain claims of American citizens. President Tyler replied on August 23, 1842, that “ [i]n the present state of the correspondence and of the relations between the two Governments on these important subjects it is not deemed consistent with the public interest to communicate the information requested. The business engages earnest attention, and will be made the subject of a full communication to Congress at the earliest practicable period.” 30 N egotiations Regarding Northwestern Boundary In response to the Senate’s request for information concerning the United States’ negotiations with Great Britain for settlement of the Northwest Boundary, President Tyler replied on December 23, 1842, that measures had been taken to settle the dispute and that “under these circumstances I do not deem it consistent with the public interest to make any communication on the subject.” 31 H itchcock Investigation On January 31, 1843, President Tyler invoked executive privilege against a request by the House of Representatives to the Secretary of War to produce investigative reports submitted to the Secretary by Lieutenant Colonel Hitchcock concerning his investigations into frauds perpetrated against the Cherokee Indi­ ans. The Secretary of War consulted with the President and under the latter’s direction informed the House that negotiations were then pending with the Indians for settlement of their claims, and that in the opinion of the President and the Department, publication of the report at that time would be inconsistent with the public interest. The Secretary of War further stated that the reports sought by the House contained information which was obtained by Colonel Hitchcock through ex p a r t e questioning of persons whose statements were not made under oath, and which implicated persons who had no opportunity to contradict the 29Id at 158 30Id. at 178-79. 31 Id at 210-11 760 allegations or provide any explanation. The Secretary of War expressed the opinion that to publicize such statements at that time would be unjust to the persons mentioned , and would defeat the object of the inquiry. He also stated that the Department had not yet been given a sufficient opportunity to pursue the investigation, to call the affected parties for explanations, or to make any other determinations regarding the matter. The President stated: The injunction of the Constitution that the President ‘shall take care that the laws be faithfully executed,’ necessarily confers an authority, commensurate with the obligation imposed to inquire into the manner in which all public agents perform the duties assigned to them by law. To be effective these inquiries must often be confidential. They may result in the collection of truth or of falsehood, or they may be incomplete and may require further prosecution. To maintain that the President can exercise no discre­ tion as to the time in which the matters thus collected shall be promulgated . . . would deprive him at once of the means of performing one of the most salutary duties of his office. . . . To require from the Executive the transfer of this discretion to a coordinate branch of the Government is equivalent to the denial of its possession by him and would render him dependent upon that branch in the performance of a duty purely executive.1321 In response to the House’s claim that it had a right to demand from the Executive and heads of departments any information in the possession of the Executive which pertained to subjects under the House’s deliberations, President Tyler stated that the House could not exercise a right to call upon the Executive for information, even though it related to a subject of the deliberations of the House, if, by so doing, it would interfere with the discretion of the Executive.33 Instructions to N avy Officers In response to the House of Representatives’ request for copies of instructions given to British and American commanding officers who were charged, pursuant to a treaty with Great Britain, with suppressing the slave trade off the coast of Africa, President Tyler sent a May 18, 1844, message to the House declining to provide the information on the ground that to do so would be incompatible with the public interest.34 Foreign Correspondence Regarding the Ownership and Occupation of Oregon Territory In June 1844, President Tyler sent a message to the Senate explaining his refusal to comply with its request for documents relating to the ownership and 32 Id. at 222. 33 Id at 222-23. 34 Id. at 320. 761 occupation of the Oregon Territory. “ [I]n the present state of the subject-matter, ” the President wrote, “ it is deemed inexpedient to communicate the information requested. . . .” 35 7. Polk Administration Foreign Relations Expenditures c f Prior Administration In 1846, President Polk refused to provide the House of Representatives with confidential memoranda regarding certain expenses incurred for the conduct of foreign relations during the Tyler Administration. In refusing to comply with a House resolution requesting documentation of these expenses, President Polk stated that where a past President had placed a seal of confidentiality upon an expenditure, and the matter was terminated before he entered office, [a]n important question arises, whether a subsequent Presi­ dent, either voluntarily o r at the request of one branch of Con­ gress, can without a violation of the spirit of the law revise the acts of his predecessor and expose to public view that which he had determined should not be “ made public.” If not a matter of strict duty, it would certainly be a safe general rule that this should not be done. Indeed, it may well happen, and probably would hap­ pen, that the President for the time being would not be in posses­ sion of the information upon which his predecessor acted, and could not, therefore, have the means of judging whether he had exercised his discretion wisely or not.1361 Polk concluded that the President making an expenditure, deemed by him confidential, may, if he chooses, keep all the information and evidence upon which he acts in his own possession. If, for the information of his successors, he leaves some evidence upon which he acts in the confidential files of one of the executive departm ents, such evidence does not thereby become publicly available. M ilitary and D iplom atic Instructions with Respect to Mexico On January 12, 1848, President Polk sent a message to the House transmitting reports of the Secretaries of State, War, and the Navy in response to a con­ gressional resolution seeking copies of all instructions given to American mili­ tary and diplomatic officers relating to the return of President General Lopez de Santa Anna to Mexico. President Polk stated that he was transmitting the documents, » Id. at 327. »/</. at 433. 762 which contain all the information in the possession of the Ex­ ecutive which it is deemed compatible with the public interests to communicate. . . . The customary and usual reservation contained in calls of either House of Congress upon the Executive for information relating to our intercourse with foreign nations has been omitted in the resolution before me. The call of the House is unconditional. It is that the information requested be communicated, and thereby be made public, whether in the opinion of the Executive (who is charged by the Constitution with the duty of conducting negotia­ tions with foreign powers) such information, when disclosed, would be prejudicial to the public interest or not. It has been a subject of serious deliberation with me whether I could, consist­ ently with my constitutional duty and my sense of the public interests involved and to be affected by it, violate an important principle, always heretofore held sacred by my predecessors, as I should do by a compliance with the request of the House. Presi­ dent Washington, in a message to the House of Representatives of the 30th of March, 1796, declined to comply with a request contained in a resolution of that body, to lay before them “ a copy of the instructions to the minister of the United States who negotiated the treaty with the King of Great Britain, together with the correspondence and other documents relative to that treaty, excepting such of the said papers as any existing negotiation may render improper to be disclosed.” . . . Indeed, the objections to complying with the request of the House contained in the resolution before me are much strong­ er than those which existed in the case of the resolution in 1796. This resolution calls for the “ instructions and orders” to the minister of the United States to Mexico which relate to negotia­ tions which have not been terminated, and which may be re­ sumed. The information called for respects negotiations which the United States offered to open with Mexico immediately pre­ ceding the commencement of the existing war. The instructions given to the minister of the United States relate to the differences between the two countries out of which the war grew and the terms of adjustment which we were prepared to offer to Mexico in our anxiety to prevent the war. These differences still remain unset­ tled, and to comply with the call of the House would be to make public through that channel, and to communicate to Mexico, now a public enemy engaged in war, information which could not fail to produce serious embarrassment in any future negotiation be­ tween the two countries. I have heretofore communicated to Congress all the correspondence of the minister of the United States to Mexico which in the existing state of our relations with 763 that Republic can, in my judgment, be at this time communicated without serious injury to the public interest. Entertaining this conviction, and with a sincere desire to fur­ nish any information which may be in possession of the executive department, and which either House of Congress may at any time request, 1 regard it to be my constitutional right and my solemn duty under the circumstances of this case to decline a compliance with the request of the House contained in their resolution.1371 D iplom atic Instructions Relating to United States-M exico Treaty On July 29, 1848, President Polk refused to comply with a request by the House of Representatives for copies of instructions provided to commissioners who negotiated the treaty with Mexico on the ground that “ it would be ‘inconsist­ ent with the public interests’ to give publicity to these instructions at the present time.” He added that, “ as a general rule applicable to all our important negotia­ tions with foreign powers, it could not fail to be prejudicial to the public interest to publish the instructions of our ministers until some time had elapsed after the conclusion of such negotiations.” 38 President Polk did transmit these documents to the House on February 8, 1849, at which time he reaffirmed the general rule enunciated on July 29, but stated that, notwithstanding that, “ as [the documents] have been again called for by the House, and called for in connection with other documents, to the correct understanding of which they are indispensable, 1 have deemed it my duty to transmit them.” 39 8. Fillmore Administration D iplom atic Instructions Upon receipt of a request from the Senate to furnish, if not inconsistent with the public interest, information concerning the seizure of the American steam­ ship Prometheus by a British war vessel and the measures taken to vindicate “ the honor of the country,” President Fillmore, on December 15, 1851, transmitted excerpts from a communication giving the facts of the case, but without the instructions given to the United States Minister in London. He declared that “ [sufficient time has not elapsed for the return of any answer to this dispatch from him, and in my judgment it would at the present moment be inconsistent with the public interest to communicate those instructions. A communication, however, of all the correspondence will be made to the Senate at the earliest moment at which a proper regard to the public interest will permit.”40 37 Id at 565. 566, 567. 38 Id. at 602. 39 Id. at 679. 40 5 Richardson, supra, at 139-40. 764 Documents Involving American Claims Against the Mexican Government In response to a Senate request for papers and proofs on file with the Executive Branch regarding the claim of Samuel A. Belden & Co. against the Mexican government, on May 29, 1852, President Fillmore forwarded all documents save those of a diplomatic nature, and stated that because the claim was still being negotiated it was therefore “ not deemed expedient . . . to make public the documents which have been reserved.”41 Sandwich Islands On August 14, 1852, President Fillmore refused to provide information to the Senate regarding a proposition made by the King of the Sandwich Islands to transfer the islands to the United States, as not comporting with the public interest.42 9. Buchanan Administration Law Enforcement Files On January 11,1859, President Buchanan responded to a request by the Senate for information relating to the landing of a slave ship on the coast of Georgia. The President transmitted a report from the Attorney General which stated that an offense had been committed and that measures were being taken to enforce the law. However, he concurred with the opinion of the Attorney General that “ it would be incompatible with the public interest at this time to communicate the correspondence with the officers of the Government at Savannah or the instruc­ tions which they have received.”43 10. Lincoln Administration Fort McHenry Arrests On July 27, 1861, President Lincoln refused to provide to the House of Representatives documents revealing the grounds, reasons, and evidence upon which Baltimore police commissioners were arrested at Fort McHenry for the reason that disclosure at that time would be incompatible with the public interest.44 Arrest c f Brigadier General Stone On May 1, 1862, President Lincoln refused to comply with a request by the Senate for more particular information regarding the evidence leading to the 4 ,/</. at 151. 42 Id at 159. 43 Id. at 534. 44 6 Richardson, supra, at 33. 765 arrest of Brigadier General Stone on the ground that the determination to arrest and imprison him was made upon the evidence and in the interest of public safety, and that disclosure of more particular information was incompatible with the public interest.45 N egotiations with N ew Granada The House of Representatives had requested the Secretary of State to commu­ nicate to it, “ if not in his judgment incompatible with the public interest,” information concerning American relations with New Granada, and what nego­ tiations, if any, had been had with General Herran of that country. President Lincoln, on January 14, 1863, replied to the resolution giving a resume of developments in New Granada. However, with respect to official communica­ tions with General Herran, he stated that “ [n]o definitive measure or proceeding has resulted from these communications, and a communication of them at present would not, in my judgment, be compatible with the public interest.”46 11. Johnson Administration M ilitary Correspondence On January 26, 1866, President Johnson refused to disclose to the Senate certain communications from military officers regarding violations of neutrality on the Rio Grande on the ground that such disclosure would not be consistent with the public interest.47 Confinement c f Jefferson Davis On February 9 ,1 8 6 6 , President Johnson refused, on advice from the Secretary of War and the Attorney General, to comply with a request by the House of Representatives for a report by the Judge Advocate General concerning the confinement of Jefferson Davis, and others, on the ground that disclosure would not be in the public interest.48 N ew Orleans Investigations On May 2, 1866, President Johnson refused to provide the House of Repre­ sentatives with a copy of a report that it had requested concerning General Smith’s and James T. Brady’s New Orleans investigations, citing the public interest in nondisclosure.49 45 Id. *M . 47 Id. 48 Id. 49 Id. at at at at at 74. 147. 149. 376-77. 378. 385. 766 12. Grant Administration Performance c f Executive Functions In April 1876, President Grant was requested by the House of Representatives to provide information which would show whether any executive acts or duties had been performed away from Washington, the lawfully established seat of government . (This was an attempt to embarrass the President for having spent the hot summer at Long Beach.) On May 4, 1876, the President refused on the ground that the Constitution did not give the House of Representatives authority to inquire of the President where he performed his executive functions, and that, moreover, the House’s lawful demands on the Executive were limited to informa­ tion necessary for the proper discharge of its powers of legislation or impeachment.50 13. Cleveland Administration Dismissal of D istrict Attorney In response to a resolution by the Senate requesting the Attorney General to provide certain documents concerning the administration of the United States Attorney’s Office (then District Attorney) for the Middle District of Alabama, and the President’s dismissal of the incumbent district attorney, President Cleveland sent a message on March 1, 1886, to the Senate stating that he was withholding the requested documents because they contained information ad­ dressed to him and to the Attorney General by private citizens concerning the former district attorney, and that the documents related to an act (the suspension and removal of an Executive Branch official) which was exclusively a discretion­ ary executive function.51 “Rebecca ” Schooner Incident On February 26, 1887, President Cleveland refused to provide the Senate with information that it requested regarding the seizure and sale of the American schooner Rebecca at Tampico, and the resignation of the Minister of the United States to Mexico, on the ground that publication of the requested correspondence would be inconsistent with the public interest.52 14. Harrison Administration International Conference on the Use c f Silver In response to the Senate’s request for information regarding the steps taken toward holding an international conference on the use of silver, President Har­ 50 7 Richardson, supra, at 361-66 51 8 Richardson, supra, at 375. 52 Id. at 538 767 rison stated on April 26, 1892, that “ in my opinion it would not be compatible with the public interest to lay before the Senate at this time the information requested, but that at the earliest moment after definite information can properly be given all the facts and any correspondence that may take place will be submitted to Congress.” 53 15. Cleveland Administration Cuba M atters In response to a request by the House of Representatives for copies of all correspondence relating to affairs in Cuba since February 1895, President Cleveland transmitted on February 11, 1896, a communication from the Secre­ tary of State and such portions of the correspondence requested as he deemed it not inconsistent with the public interest to communicate.54 Correspondence with Spain On May 23, 1896, President Cleveland transmitted to the Senate a requested copy of the protocol with Spain, but withheld copies of certain correspondence with Spain on the ground that it would be incompatible with the public good to furnish such correspondence.55 16. McKinley Administration War D epartm ent Investigations In response to a request made by the Senate to the Secretary of War for a report on the War Department’s investigation into receipts and expenditures of Cuban funds, President McKinley informed the Senate on January 3, 1901, that it was not deemed compatible with the public interest to transmit the document at that tim e.56 17. Theodore Roosevelt Administration United States Steel Proceedings On January 4, 1909, the Senate passed a resolution directing the Attorney General to inform the Senate whether certain legal proceedings had been in­ stituted against the United States Steel Corporation, and if not, the reasons for its non-action. A request was also made for the opinions of the Attorney General regarding this matter, if any had been written. President Roosevelt replied to the Senate on January 6, 1909, stating that he had been orally advised by the Attorney 33 9 Richardson, supra, at 238-39. 54 Id. at 666. 53 Id. at 669. 56 9 Richardson, supra, at 6458 (Bur of N at’i Literature ed. 1911). 768 General that there were insufficient grounds for instituting legal action against U.S. Steel, and that he had instructed the Attorney General not to respond to that portion of the resolution which calls for a statement of his reasons for nonaction. I have done so because I do not conceive it to be within the authority of the Senate to give directions of this character to the head of an executive department, or to demand from him reasons for his action. Heads of the executive departments are subject to the Constitution, and to the laws passed by the Con­ gress in pursuance of the Constitution, and to the directions of the President of the United States, but to no other direction whatever.1571 When the Senate was unable to get the documents from the Attorney General, it subpoenaed the Commissioner of Corporations to produce all papers and documents regarding U.S. Steel in his possession. The Commissioner reporteid the request to the President, who sought an opinion from Attorney General Bonaparte regarding the Commission’s statutory obligation to withhold such information except upon instruction by the President. The Attorney General advised the Commissioner that the discretion to make public the requested documents was vested in the President and that, accordingly, he should turn over all documents within the scope of the subpoena to the President.58 The Commis­ sioner did so, and President Roosevelt then informed the Judiciary Committee that he had the papers and that the only way the Senate could get them was through his impeachment. President Roosevelt also explained that some of the facts were given to the government under a pledge of secrecy and that the government had an obligation to keep its word.59 18. Coolidge Administration Bureau c f Internal Revenue Oversight On April 11, 1924, President Coolidge responded to a request by the Senate for a list of all companies in which the Secretary of the Treasury “ was interested” (for the purpose of investigating their tax returns) as a part of a general oversight investigation of the Bureau of Internal Revenue. President Coolidge refused to provide the information on the ground that it was confidential information the disclosure of which would be detrimental to public service, calling the Senate’s investigation an “ unwarranted intrusion,” bom of a desire other than to secure information for legitimate legislative purposes.60 ” 43 58 27 59 E 60 65 Cong Rec. 528 (1909). Op Att’y Gen. 150 (1909). Corwin, The President— Office and Powers 429 (1957). Cong. Rec 6087 (1924) 769 19. Hoover Administration London Treaty Letters On July 11, 1930, President Hoover responded to a request addressed to the Secretary of State from the Senate Foreign Relations Committee for certain confidential telegrams and letters leading up to the London Naval Conference and the London Treaty. The Committee members had been permitted to see the documents with the understanding that the information contained therein would be kept confidential. The Committee asserted its right to have full and free access to all records touching on the negotiation of the Treaty, basing its right on the constitutional prerogative of the Senate in the treaty-making process. In his message to the Senate, President Hoover pointed out that there were a great many informal statements and reports which were given to the government in con­ fidence. The Executive was under a duty, in order to maintain amicable relations with other nations, not to publicize every negotiating position and statement which preceded final agreement on the Treaty. He stated that the Executive must not be guilty of a breach of trust, nor violate the invariable practice of nations. “ In view of this, I believe that to further comply with the above resolution would be incompatible with the public interest.” 61 20. Franklin D. Roosevelt Administration FBI Records On April 30, 1941, at the direction of President Roosevelt, Attorney General Jackson wrote the Chairman of the House Committee on Naval Affairs, stating his refusal to provide the Committee with certain FBI records. Attorney General Jackson declared that “ all investigative reports are confidential documents of the executive department of the Government, to aid in the duty laid upon the President by the Constitution to ‘take care that the laws be faithfully executed,’ and that congressional or public access to them would not be in the public interest.” 62 R adio Intelligence Material Pursuant to a January 19, 1943, resolution, a House Select Committee to Investigate the Federal Communications Commission (FCC) subpoenaed the Director of the Bureau of the Budget on July 9, 1943, to appear before the Select Committee and produce Bureau files and correspondence dealing with requests by the War and Navy Departments to the President for an executive order transferring the functions of the FCC ’s Radio Intelligence Division to the military establishments. The Director refused, citing Attorney General Jackson’s letter of 61 S. D oc No. 216, 71st C ong , Special Sess 2 (1930). 62 40 Op. A tt’y G en 45, 46 (1941) 770 April 30, 1941, and a presidential instruction that the Bureau’s files were to be kept confidential, because disclosure would not com port with the public interest.63 In addition, the Acting Secretary of War was requested to appear before the Select Committee to produce documents bearing on the War and Navy Depart­ ments’ requests to the President and to bring several Army officers to testify. The Acting Secretary refused to provide the documents on the President’s direction, on the ground that doing so would be incompatible with the public interest, and, pursuant to his own judgment, refused to permit the Army officers to appear.64 FBI Records In 1944, the same Select Committee subpoenaed the Director of the Federal Bureau of Investigation to testify concerning fingerprint records and activities at Pearl Harbor, and also to identify a certain document which he was alleged to have received in the course of his duties. The Director refused to give testimony or to exhibit a copy of the President’s directive requiring him, in the interest of national security, to refrain from testifying or disclosing the contents of the Bureau’s files.65 Attorney General Biddle wrote a letter to the Select Committee, dated January 22, 1944, informing the Committee that communications between the President and the heads of departments were privileged and not subject to inquiry by congressional committees.66 21. TVuman Administration Condon Incident In March 1948, the House Committee on Un-American Activities issued a subpoena to the Secretary of Commerce directing him to appear before the Committee and to bring with him a letter from the Director of the FBI concerning the loyalty of Dr. Condon, Director of the National Bureau of Standards, together with all records, files, and transcripts of the loyalty board relating to Dr. Condon. On March 13, 1948, President Truman issued a directive providing for the confidentiality of all loyalty files and requiring that all requests for such files from sources outside the Executive Branch be referred to the Office of the President, for such response as the President may determine. 13 Fed. Reg. 1359 (1948). At a press conference held on April 22, 1948, President Truman indicated that he would not comply with the request to turn the papers over to the Committee.67 Steelman Incident On March 6, 1948, during an investigation into a strike among employees of Government Services, Inc., a subcommittee of the Hcuse Committee on Educa­ 63 Study and Investigation c f the Federal Communications Commission Hearings on H Res. 21 Before the House Select Comm, to Investigate the Federal Communications Commission, 78th C ong., 1st Sess 37 (1943). 64 Id at 67-68 65 Id. at 2304-05. 66 Id at 2337-39 67 The Public lepers of the Presidents, Harry S Truman, 1948, at 228 771 tion and Labor issued a subpoena to presidential assistant John R. Steelman.68 Mr. Steelman returned the subpoena to the chairman of the subcommittee on the ground that “ the President directed me, in view of my duties as his assistant, not to appear before your subcommittee.” 69 The minority report to H.R. Rep. No. 1595 commented on Mr. Steelman’s failure to comply with the subpoena as follows: the purpose of the subpoena on Mr. Steelman was to obtain from him the contents of any oral or written communications which had been made to him by the President with reference to the strike prevailing in the restaurants maintained by Government Services, Inc. I cannot believe that any congressional committee is entitled to make that kind of investigation into the private conferences of the President with one of his principal aides. I cannot conceive that the views of a Senator or Congressman on a pending bill may be extracted by a court or by a congressional committee by subpoenaing the Senator’s of [sic] Congressman’s administrative assistant or any other assistant, secretary, or confidential em­ ployee. Likewise, I regard it as a direct invasion of the Executive’s prerogative to invade the work and time of his assistant in this manner. Dr. Steelman I think acted with the utmost propriety in referring the matter to the President. The Chief Executive very naturally and properly directed Dr. Steelman not to appear before the subcommittee.1701 State D epartm ent Employee Loyalty Investigation On March 28, 1950, a subcommittee of the Senate Foreign Relations Commit­ tee investigating allegations of disloyalty among State Department employees served subpoenas on the Secretary of State, the Attorney General, and the Chairman of the Civil Service Commission, demanding the production of all files bearing on the loyalty of certain State Department employees. After reference of the subpoena to the President pursuant to the directive of March 13, 1948, the President on April 3, 1950, directed the officials not to comply with the sub­ poena.71 Thereafter it appeared that the subpoenaed documents had been made available to the preceding Congress prior to the issuance of the March 13, 1948, directive. President Truman thereupon agreed to make the files available to the subcommittee on the theory that this would not constitute a precedent for subsequent exceptions from the March 13, 1948, directive.72 68 Investigation c f G SI Strike: Hearings o n H. Res 111 Before a Special Subcomm. c f the House Comm, on Education and Labor, 80th Cong , 2d Sess. 347-53 (1948). 69 H R Rep. No. 1595, 80th Cong., 2d Sess. 3 (1948); see id Pt. 2, at 8. 70 Id. Pt. 1, at 12 71 The Public F^pers of the Presidents, H arry S Truman, 1950, at 240. 72 S. Rep. No. 2108, 81st Cong., 2d Sess. 9 (1950) 772 General Bradley Incident During the investigation into the circumstances surrounding the dismissal of General Douglas MacArthur held by the Senate Committees on Armed Services and Foreign Relations in 1951, General Bradley refused to testify about a conversation with President Truman in which he had acted as the President’s confidential adviser. The Chairman of the Committee, Senator Russell, recog­ nized Bradley’s claim of privilege. When that ruling was challenged, the Com ­ mittee upheld it by a vote of 18 to 8 .73 At a press conference held on May 17, 1951, President Truman indicated that he had previously taken the position that his conversation with General Bradley was privileged and that he was “ happy” with the Committee’s action.74 Refusal to Comply with an Excessively Burdensome Demand fo r Information During an investigation into the administration of the Department of Justice by a special subcommittee of the House Judiciary Committee, the chairman of the subcommittee requested a number of departments and agencies to furnish the following information: A list of all cases referred to the Department of Justice or U.S. Attorneys for either criminal or civil action by any governmental department or agency within the last six years, in which: a. Action was declined by the Department of Justice, including in each such case the reason or reasons assigned by said Depart­ ment for such refusal to act. b. Said cases were returned by the Department of Justice to the governmental Department or agency concerned for further infor­ mation or investigation. In such cases, a statement of all subse­ quent action taken by the Department of Justice should be included. c. Said cases have been referred to the Department of Justice and have been pending in the Department for a period of more than one year and are not included in b. above.1751 President Truman instructed the heads of all agencies and departments not to comply with that request for the following reasons set forth in his letter, dated March 7, 1952, to the chairman of the subcommittee: [T]his request of yours is so broad and sweeping in scope that it would seriously interfere with the conduct of the Government’s business if the departments and agencies should undertake to 73 Military Situation in the Far East' Hearings Before the Senate Comm, on Armed Services and the Senate Comm, on Foreign Relations, 82d Cong., 1st Sess. 763, 832-72 (1951). 74 The Public Ffcpers of the Presidents. Harry S Truman, 1951, at 289. 73 The Public lep ers of the Presidents, Harry S Truman, 1952-53, at 199. 773 comply with it. I am advised that it would require the examination of hundreds of thousands of files, that it would take hundreds of employees away from their regular duties for an extensive period of time, and that it would cost the Government millions of dollars. All this would be done, not for the purpose of investigating specific complaints, not for the purpose of evaluating credible evidence of wrongdoing, but on the basis of a dragnet approach to examining the administration of the laws. 1 do not believe such a procedure to be compatible with those provisions of the Constitution which vest the executive power in the President and impose upon him the duty to see that the laws are faithfully executed.1761 Confidentiality c f Administration c f Loyalty Security Program In the spring of 1952 members of a Senate Appropriations subcommittee sought detailed information on the administration of the Loyalty Security Pro­ gram. In response to a request for guidance by the Department of State, President Truman on April 3, 1952, issued detailed instructions which provided for the confidentiality of the Loyalty Security Program. These instructions provided, inter alia: There is no objection to making available the names of all members of an agency loyalty board, but it is entirely improper to divulge how individual board members voted in particular cases or to divulge the members who sat on particular cases. If this type of information were divulged freely, the danger of intimidation would be great, and the objectivity, fairness and impartiality of board members would be seriously prejudiced.1771 22. Eisenhower Administration Executive Branch Deliberative Discussions During the Army-McCarthy Hearings, the counselor of the Army was ques­ tioned about discussions which had taken place during a conference of high-level government officials. On May 17, 1954, President Eisenhower directed the Secretary of Defense to instruct the employees of his Department not to testify on those issues. The President’s letter stated: Because it is essential to efficient and effective administration that employees of the Executive Branch be in a position to be completely candid in advising with each other on official matters, n id . 77 Id. at 235-36. 774 and because it is not in the public interest that any of their conversations or communications, or any documents or reproduc­ tions, concerning such advice be disclosed, you will instruct employees of your Department that in all of their appearances before the Subcommittee of the Senate Committee on Govern­ ment Operations regarding the inquiry now before it they are not to testify to any such conversations or communications, or to produce any such documents or reproductions. This principle must be maintained regardless of who would be benefited by such disclosures.1781 This letter was interpreted as requiring every officer and employee of the government to claim privilege on his own in any situation covered by that letter. Hence there were a considerable number of invocations of executive privilege during the Eisenhower Administration which were not referred to, or specifically authorized by, the President. Conversation with Presidential Assistant Sherman Adams During hearings in July 1955 on the Dixon-Yates Contract before the Subcom­ mittee on Antitrust and Monopoly of the Senate Judiciary Committee, Securities and Exchange Commission Chairman Armstrong was questioned on various issues. During most of his testimony, questions of privilege were disposed of without reference to the White House. When questioned about a telephone conversation with Presidential Assistant Sherman Adams, he sought the advice of the Special Counsel to the President who, upon advice of the Attorney General, directed that Mr. Armstrong could testify as to existence of the con­ versation, but not as to matters discussed during the conversation.79 Killian and G aither Panel Reports In connection with an investigation into satellite and missile programs in January 1958, then-Senator Lyndon Johnson asked for the release of the so-called Killian and Gaither Panel reports. President Eisenhower denied the request in part on the ground that the reports had been prepared with the understanding that the advice contained in them would be kept confidential. The President added that “ these reports are documents of the National Security Council. Never have the documents of this Council been furnished to the Congress.” 80 Confidentiality o f ICA Country Reports Between 1957 and 1959 the International Cooperation Administration (ICA), the predecessor to the Agency for International Development (AID), repeatedly 78 The Public lepers of the Presidents, Dwight D Eisenhower, 1954, at 483-84 79 Power Policy. Dixon-Yates Contract' Hearings on S Res 61 Before the Subcomm. on Antitrust and Monopoly c f the Senate Comm on the Judiciary. 84th Cong., 1st Sess. 751 (1955). 80The Public Ffcpers of the Presidents, Dwight D. Eisenhower, 1958, at 117-18. 775 denied to Congress and to the Comptroller General access to its country evalua­ tion reports on the ground that they contained confidential opinions and tentative recommendations on matters involving foreign policy. These refusals were made without express presidential authorization. When this issue came up at President Eisenhower’s news conference of July 1, 1959, the President approved these withholdings largely on the ground that the release of the reports would jeopardize the ability of the United States to obtain confidential information.81 The Mutual Security legislation of 1959—1961 provided in effect that the ICA could withhold information from Congress or the Comptroller General only upon a presidential certification that he had forbidden the document be furnished and stated the reason for so doing. President Eisenhower made the following certifications: November 12, 1959, relating to an evaluation report on Vietnam;82 December 22, 1959, relating to evaluation reports on Iran and Thailand;83 December 2, 1960, relating to evaluation reports on several South American countries. These reports apparently were made available to the Comptroller General during the following Administration.84 23. Kennedy Administration Confidentiality c f Names cf Specific Government Employees During an investigation into military cold war education and speech review policies conducted by the Senate Committee on Armed Services, Senator Thur­ mond requested the names of individual government employees of the Depart­ ment of Defense and the Department of State who made or recommended changes in specific speeches. On February 8, 1962, President Kennedy directed the Secretary of Defense and all personnel under the jurisdiction of his Department not to give any testimony or produce any documents which would disclose such information. The letter stated: [I]t would not be possible for you to maintain an orderly Depart­ ment and receive the candid advice and loyal respect of your subordinates if they, instead of you and your senior associates, are to be individually answerable to the Congress, as well as to you, for their internal acts and advice. S(C Jfc H* * I do not intend to permit subordinate officials of our career 81 Id .. 1959, at 488, 489. 82 Id. at 776. 83 Id. at 874 84 Id , 1960-61, at 881 776 services to bear the brunt of congressional inquiry into policies which are the responsibilities of their superiors.1851 Chairman Stennis upheld the claim of privilege. The ruling was upheld by the Subcommittee.86 On February 9, 1962, President Kennedy sent a similar letter to the Secretary of State.87 Confidentiality c f National Security Council Papers Later, during the same investigation into military cold war education and speech review policies, Senator Thurmond demanded certain National Security Council papers. In a letter to Chairman Stennis dated June 23, 1962, President Kennedy refused to release those papers on the ground that “ the unbroken precedent of the National Security Council is that its working papers and policy documents cannot be furnished to the Congress.” 88 24. Johnson Administration Exemption c f Presidential Assistants from Appearance Before Congressional Committees In 1968, during hearings on the nomination of Justice Fortas to be Chief Justice of the United States, Treasury Under Secretary Barr, Associate Special Counsel to the President DeVier Pierson, and Secretary of Defense Clark Clifford were invited to appear before the Senate Committee on the Judiciary to testify on the question whether Justice Fortas had participated in high-level White House meetings dealing with the development of legislation authorizing the Secret Service to protect presidential candidates. By letters dated September 16, 1968, Mr. Barr and Mr. DeVier Pierson both declined the invitation. Mr. Barr’s letter contained the following pertinent language: In the development of this legislation, I participated in meetings with representatives of the White House and discussed the matter directly with the President. Based on long-standing precedents, it would be improper for me under these circumstances to give testimony before a Con­ gressional committee concerning such meetings and discussions. Therefore, I must, with great respect, decline your invitation to appear and testify. Mr. DeVier Pierson stated: 85 Military Cold War Education and Speech Review Policies • Hearings Before the Special Preparedness Subcomm c f the Senate Comm on Armed Services, 87th Cong , 2d Sess. 508-509 (1962). 86 Id. at 513-14. 87 Id at 725. 88 Id. at 2951-57. 3160-61. Ill As Associate Special Counsel to the President since March of 1967, I have been one of the “ immediate staff assistants” provided to the President by law. (3 U .S.C . 105, 106.) It has been firmly established, as a matter of principle and precedents, that members of the President’s immediate staff shall not appear before a Congressional committee to testify with respect to the performance of their duties on behalf of the President. This limitation, which has been recognized by the Congress as well as the Executive, is fundamental to our system of government. I must, therefore, respectfully decline the invitation to testify in these hearings. The Secretary of Defense also asked to be excused ifrom a personal appearance before the Committee, stating that “ because of the complexities of the current world situation, my time is fully occupied in meeting my obligations and responsibilities as Secretary of Defense.”89 25. Nixon Administration FBI Investigative Files On November 21, 1970, the Attorney General, with the specific approval of the President, refused to release certain investigative files of the Federal Bureau of Investigation to Rep. L. H. Fountain, Chairman of the Intergovernmental Relations Subcommittee of the House Government Operations Committee. The reports discussed certain scientists nominated by the President to serve on advisory boards of the Department of Health, Education and Welfare.90 M ilitary A ssistance Plan On August 30, 1971, President Nixon declined to make available to the Senate Foreign Relations Committee the Five-Year Plan for the Military Assistance Program.91 In a memorandum to the Secretaries of State and Defense, the President stated: The Senate Foreign Relations Committee has requested “ direct access to the Executive Branch’s basic planning data on Military Assistance” for future years and the several internal staff papers containing such data. The basic planning data and the various 89 Nom inations c f A be Fortas and Homer Thornberry: Hearings Before the Senate Comm, on the Judiciary, 90th C ong.. 2d Sess. 1347, 1348, 1363 (1968). 90 Memorandum for Honorable William S. Moortiead, Chairman, Subcommittee on Foreign Operations and G overnment Information of the House Committee on Government Operations, from Deputy Assistant Attorney Genera] Mary Lawton (Apr. 25, 1973) (Lawton Memorandum); U.S. Government Information Policies and fYactices— The Pentagon Papers, Part 2, H ouse Comm, on Government Operations, 92d C ong., IstSess 362-63 (1971). 91 Executive Privilege. The Withholding c f Information B y the Executive: Hearing Before the Subcomm. on Separation c f Powers c f the Senate Comm, on the Judiciary, 92d Cong., 1st Sess. 45-46 (1971). 778 internal staff papers requested by the Senate Foreign Relations Committee do not, insofar as they deal with future years, reflect any approved program of this Administration. . . . I am concerned, as have been my predecessors, that unless privacy of preliminary exchange of views between personnel of the Executive Branch can be maintained, the full frank and healthy expression of opinion which is essential for the successful administration of Government would be muted. I have determined, therefore, that it would not be in the public interest to provide to the Congress the basic planning data on military assistance as requested by the Chairman. . . ,1921 AID Information Concerning Foreign Assistance to Cambodia On March 15, 1972, the President directed the Secretary of State to withhold from the Foreign Operations and Government Information Subcommittee of the House Government Operations Committee the Agency for International De­ velopment (AID) country field submissions for Cambodian foreign assistance for fiscal year 1973.” USIA Memoranda On the same date the President instructed the Director of the United States Information Agency (USIA) to decline to provide to the Senate Foreign Relations Committee all USIA country program memoranda.94 Watergate President Nixon, asserting executive privilege during 1973 and 1974, refused to provide to the Senate Select Committee on Presidential Campaign Activities (Watergate Committee) and to the House Judiciary Committee various tape recordings of conversations involving the President, and other materials relating to the involvement of 25 named individuals in criminal activities connected with the 1972 presidential election.95 26. Carter Administration Department of Energy Gas Conservation Fee Documents In April 1980 the Subcommittee on Environment, Energy and Natural Re­ sources of the House Committee on Government Operations subpoenaed docu­ n Id at 46. 93 118 Cong. Rec 8694 (1972); Lawton Memorandum, supra. 94 Id. 93 See J. Hamilton, The Power to Probe 23-26, 65 (1976); Cox, Executive Privilege, 122 U. Pa. L Rev 1383, 1420 (1974) Although the tape recordings were eventually turned over to the House Judiciary Committee, the President's refusal to make those same tapes available to the Senate Watergate Committee was unanimously affirmed by the U.S. Court of Appeals for the District of Columbia Circuit Senate Select Committee v. Nixon, 498 F.2d 725 (1974) (en banc) President Nixon’s refusal to disclose Watergate-related tapes and documents in response to a subpoena in a criminal case is beyond the scope of this memorandum See generally United States v Nixon, 418 U.S. 683 (1974) 779 ments reflecting intra-Executive Branch deliberations concerning the President’s decision to impose a conservation fee on imports of crude oil and gasoline.96 For several weeks representatives of the Executive Branch negotiated with the Subcommittee about releasing the documents. On April 25, 1980, Secretary of Energy Duncan informed the Subcommittee that “ the President has instructed me to pursue all reasonable grounds of accommodation. If there are no further reasonable avenues of negotiation, the President has instructed me to assert a privilege with respect to these documents.” 97 Ultimately, some but not all of the documents were given to the Subcommittee, which tacitly withdrew its request for documents that reflected deliberations directly involving the Executive Office of the President.98 27. Reagan Administration Secretary Watt’s Implementation c f the M ineral Lands Leasing Act On October 2, 1981, the Oversight and Investigations Subcommittee of the House Committee on Energy and Commerce served a subpoena on Secretary of the Interior James Watt for all documents relative to his determination of Canadi­ an reciprocity under the Mineral Lands Leasing Act, 30 U.S.C. § 181. Among the material covered by the subpoena were a number of Cabinet-level predeci­ sional deliberative documents, while other documents contained classified, diplomatic information. On October 13, 1981, President Reagan directed Secre­ tary Watt not to release 31 particular documents whose disclosure would be inconsistent with the confidential relationship among Cabinet officers and the President, and which would violate the constitutional doctrine of separation of powers. While protecting the confidentiality of these documents, Secretary Watt made repeated efforts to accommodate the Subcommittee’s needs through certain limited document disclosures, testimony, and correspondence. On February 8 ,1982, a contempt resolution against Secretary Watt was passed by the Subcommittee; on February 25 the full Committee supported this con­ clusion by a vote of 23 to 19. By this time, however, Secretary Watt had reached a decision finding Canada to be a “ reciprocal” national under the Mineral Lands Leasing Act. Immediately thereafter he informed all members of the Subcommit­ tee that since the deliberative process had concluded, he was “ hopeful” that additional documents might be released. On March 16, 1982, Fred F. Fielding, Counsel to the President, together with members of the Subcommittee, reached an agreement pursuant to which all of the disputed documents were made available for one day at Congress under the 96 Proclamation No 4744, 16 Weekly Comp. Pres. Doc. 592 (1980). 97 M emorandum for the Attorney General, from Assistant Attorney General John Harmon, 6 (Jan. 13, 1981). 98 Id. at 8. 780 custody of a representative from the Office of Counsel to the President. Minimal notetaking, but no photocopying, was permitted; the documents were available for examination by Members Only.99 T h e o d o r e B . O lso n Assistant Attorney General Office c f Legal Counsel 99 See generally H.R. Rep. No. 8 9 8 ,97th Cong., 2d Sess. 73-84(1982); Contempt c f Congress. Hearings Before the Subcomm. on Oversight and Investigations c f the House Comm on Energy and Commerce. 97th C ong., 2d Sess. (1982) 781

Write a legal research memo on the following topic.

Application of Federal Advisory Committee Act to Editorial Board of Department of Justice Journal A n o u ts id e a d v iso ry o r e d ito ria l b o a rd fo r a n e w D e p a rtm e n t o f J u stic e p u b lic a tio n w o u ld b e s u b je c t to th e F e d e ra l A d v is o ry C o m m itte e A c t i f it d e lib e ra te d a s a b o d y in o r d e r to f o r m u ­ la te re c o m m e n d a tio n s, b u t w o u ld n o t b e su b je c t to FA C A if e a c h in d iv id u a l m e m b e r re v ie w e d s u b m iss io n s to th e jo u r n a l an d g a v e h is o r h e r o w n o p in io n a b o u t p u b lic a tio n . M arch M em o ran d u m 27, 1990 f o r th e E x e c u tiv e A s s is ta n t TO TH E A TTO R N EY G EN E R A L You have asked whether an outside advisory or editorial board for a new publication of the Department would be subject to the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. §§ 1-15. We believe that the board would be subject to FACA if it deliberated as a body in order to formulate recommendations, but would not be subject to FACA if each individual mem­ ber reviewed submissions to the journal and gave his own opinion about publication.1 I. The definition of “advisory committee” under FACA covers, among other things, “any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof . . . which is . . . established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for . . . one or more agen­ cies or officers of the Federal Government.” 5 U.S.C. app. § 3(2). An advisory board—a committee that collectively reviews drafts of articles, makes recommendations about publication, and suggests editorial policy— would 1 We assum e th at the ed ito rial or ad visory board w ould not p erform operational functions w ith re sp ec t to th e pub licatio n . I f the b o a rd actually m a d e the final d ecisio n s ab o u t w hat to p u blish o r h ow to ru n the jo u rn a l, ad d itio n al legal q u estio n s w ould be raised. See, e.g., 41 C.F.R. § 101-6.1004(g); 5 U .S .C . app. § 9(b); Public Citizen v. Commission on the Bicentennial o f the U.S. Constitution, 622 F. Supp. 753 (D .D .C . 1985). 53 t probably come within FACA. It would be “established” by the Department, “in the interest of obtaining advice or recommendations” for the Department. 5 U.S.C. app. § 3(2). As the legislative history of FACA shows, the term “established” is to be interpreted in its “most liberal sense, so that when an officer brings together a group by formal or informal means, by contract or other arrangement, and whether or not Federal money is expended, to obtain advice and information, such group is covered by the provisions” of the Act. S. Rep. No. 1098, 92d Cong., 2d Sess. 8 (1972). In view of this broad meaning, the advisory or editorial board would come within FACA if it de­ liberated as a body.2 Furthermore, FACA would apply even though the advisory board, as we understand, could include some members who are full-time government of­ ficers or employees. Under the statute, the definition of “advisory committee” excludes “any committee which is composed wholly of full-time officers or employees o f the Federal Government.” 5 U.S.C. app. § 3(2)(iii). By impli­ cation, a committee that is not “wholly” composed of government employees or officers comes within the statute. See Center fo r Auto Safety v. Tiemann, 414 F. Supp. 215, 225 n.10 (D.D.C. 1976) (committee of state and federal employees is covered by FACA), remanded on other grounds sub nom. Cen­ ter f o r Auto Safety v. Cox, 580 F.2d 689 (D.C. Cir. 1978); S. Rep. No. 1098 at 8 (FACA motivated by abuses involving committees “whose membership in whole or in part” comes from outside the government). Although some courts have put limiting constructions on the meaning of “advisory committee,” we do not believe that such a limiting construction could be justified here, if the editorial or advisory board deliberated as a body in order to make its recommendations. The definition of “advisory committee.” if read as broadly as the language permits, is expansive. See, e.g., N ader v. Baroody, 396 F. Supp. 1231, 1232 (D.D.C. 1975), vacated as m oot, No. 75-1969 (D.C. Cir. Jan. 10, 1977). The language could extend to instances where application o f FACA—with its requirements of balanced mem­ bership, open meetings, and public availability of docum ents— would unconstitutionally intrude on the exercise o f the President’s authority. Courts have construed the statute to avoid such outcomes. See Public Citizen v. U nited States D e p ’t o f Justice, 491 U.S. 440 (1989) (FACA does not apply to American Bar Association’s committee on judicial selection); N ader v. Baroody, 396 F. Supp. at 1234-35 (FACA does not apply to casual, day-today meetings by which the President gathers information and views); see 2O n o c c a sio n , in d eterm in in g w h eth er a group is an “ ad v iso ry com m ittee,” O L C has relied upon lim it­ in g d ra ft g u id e lin e s fo r F A C A that w ere published in the F ed eral R egister, 28 Fed. R eg. 2306 (1973), but n o t a d o p te d , 39 F ed . R eg. 12,389 (1 9 7 4 ). These g u id elin es, O L C has stated, are an early a d m inistrative in te rp re ta tio n o f FA C A an d thus e n title d to som e w eight. See M em orandum fo r Irving P. M argulies, D e p u ty G e n e ra l C o u n se l, D epartm ent o f C om m erce, from T heodore B. O lson, A ssistant A tto rn e y G e n ­ e ra l, O ffic e o f L e g a l C o u n se l, Re: P resident’s Private Sector Survey on Cost Control at 6-7 (D ec. 15, 1982). E v e n u n d e r th ese guidelines, a g ro u p that has “all o r m ost” o f five "c h arac te ristic s” w ould p ro b ­ ab ly a p p ly to the p ro p o se d board (fix ed m em bership, estab lish m en t by federal official, d efined purpose o f p ro v id in g a d v ic e on particular s u b jec ts, and reg u lar o r p e riodic m eetings), and the last ch aracteristic m ig h t a lso a p p ly (an organizational stru c tu re , such as a g ro u p o f o fficers, and a staff). 54 also National Anti-Hunger Coalition v. Executive Comm, o f the P residen t’s Private Sector Survey on C ost Control, 557 F. Supp. 524, 530 (D.D.C.) (FACA, if read broadly, could violate separation of powers), a jf'd and re­ manded, 711 F.2d 1071 (D.C. Cir.), amended, 566 F. Supp. 1515 (D.D.C. 1983). However, no constitutional issues would be raised by applying FACA to the contemplated editorial or advisory board. The business of such a board would not touch on any “constitutionally specified task committed to the Executive,” Public Citizen v. United States D e p ’t o f Justice, 491 U.S. at 460, nor would regulating the board’s activities under FACA interfere with the President’s discharge of his duties. II. We believe that the Act would not reach an advisory board if the Depart­ ment sought only the views of individuals rather than the views of the board as a whole. FACA applies by its terms to “advisory committees.” “Advi­ sory committee” is a term that connotes a body that deliberates together to provide advice. Therefore, as a matter of statutory construction, we believe that FACA does not apply to a group which simply acts as a forum to collect individual views rather than to bring a collective judgment to bear. GSA regulations confirm the commonsense notion of what differentiates a “committee” from a collection of individuals.3 The regulations state that FACA does not cover: Any meeting initiated by a Federal official(s) with more than one individual for the purpose of obtaining the advice of indi­ vidual attendees and not for the purpose of utilizing the group to obtain consensus advice or recommendations. However, agencies should be aware that such a group would be covered by the Act when an agency accepts the group’s deliberations as a source of consensus advice or recommendations . . . . 41 C.F.R. § 101-6.1004(i). Although this provision is not entirely clear, it appears to mean that FACA does not cover a collection of individuals who do not perform a collegial and deliberative function and whose views are considered individually rather than as part of a “sense of the committee.” 5 In Public Citizen v. United States Dep't o f Justice, the C ourt held that the G SA re g u la tio n s w ere e n titled to “d im in ish ed d e fe re n ce " b ecau se they w ere not issued until ten years after FA C A w as passed and because FA C A , w h ile em p o w erin g G SA to issue “ adm inistrative g uidelines and m anagem ent c o n ­ tro ls,” 5 U .S.C . app. § 7 (c), did not ex p ressly authorize G SA to fill in the defin itio n s o f th e statutory term s. 491 U .S. at 463 n.12. But see 491 U.S. at 477-81 (K ennedy, J., concurring in the ju d g m e n t). N evertheless, the C o u rt d id not view the regulations as w holly w ithout w eight. 55 The clearest example of such a collection of individuals would be a group o f experts, each of whom reviews submissions in his own area of expertise. Nevertheless, even if each member of the editorial board reviews every ar­ ticle and sends his comments to the Department, the arrangement would still appear to fall outside FACA, because a collective judgment would not be sought. Indeed, since the regulation permits a meeting at which individual views are offered, it would, a fortiori, permit the solicitation of individual views o f board members who are not at a meeting. The board members would merely be acting in the same way as individual contractors who offer consulting services to the government. Cf. H.R. Rep. No. 1017, 92d Cong., 2d Sess. 4 (1972) (“The term advisory committee does not include any con­ tractor or consultant hired by an officer or agency of the government, since such contractor would not be a ‘committee, board, commission, council . . ., or sim ilar group . . . .” ’) (alteration in original). We caution, however, that this regulation has not been directly tested in the courts. W hile the regulation also permits a group to meet without having to comply with FACA, as long as only individual views are offered, such an arrangement would be open to legal challenge. As a practical matter, the dy­ namics of such a gathering are likely to lead to members exchanging, analyzing, and debating the views presented, and it would be difficult to argue, in that event, that the members were offering only discrete, individual opinions. If the editorial or advisory board is set up as a vehicle for the presenta­ tion o f individual views, it m ay be prudent to leave the board without any formal structure, such as officers or staff. One opinion in a case under FACA could be read to suggest that such “indicia of formality” may be relevant to whether the principle recognized in the GSA regulation would apply. See N atural Resources Defense Council, Inc. v. Herrington, 637 F. Supp. 116, 120 (D.D.C. 1986). W ILLIAM P. BARR Assistant Attorney General Office o f Legal Counsel 56

Write a legal research memo on the following topic.

Application of Federal Advisory Committee Act to Editorial Board of Department of Justice Journal A n o u ts id e a d v iso ry o r e d ito ria l b o a rd fo r a n e w D e p a rtm e n t o f J u stic e p u b lic a tio n w o u ld b e s u b je c t to th e F e d e ra l A d v is o ry C o m m itte e A c t i f it d e lib e ra te d a s a b o d y in o r d e r to f o r m u ­ la te re c o m m e n d a tio n s, b u t w o u ld n o t b e su b je c t to FA C A if e a c h in d iv id u a l m e m b e r re v ie w e d s u b m iss io n s to th e jo u r n a l an d g a v e h is o r h e r o w n o p in io n a b o u t p u b lic a tio n . M arch M em o ran d u m 27, 1990 f o r th e E x e c u tiv e A s s is ta n t TO TH E A TTO R N EY G EN E R A L You have asked whether an outside advisory or editorial board for a new publication of the Department would be subject to the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. §§ 1-15. We believe that the board would be subject to FACA if it deliberated as a body in order to formulate recommendations, but would not be subject to FACA if each individual mem­ ber reviewed submissions to the journal and gave his own opinion about publication.1 I. The definition of “advisory committee” under FACA covers, among other things, “any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof . . . which is . . . established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for . . . one or more agen­ cies or officers of the Federal Government.” 5 U.S.C. app. § 3(2). An advisory board—a committee that collectively reviews drafts of articles, makes recommendations about publication, and suggests editorial policy— would 1 We assum e th at the ed ito rial or ad visory board w ould not p erform operational functions w ith re sp ec t to th e pub licatio n . I f the b o a rd actually m a d e the final d ecisio n s ab o u t w hat to p u blish o r h ow to ru n the jo u rn a l, ad d itio n al legal q u estio n s w ould be raised. See, e.g., 41 C.F.R. § 101-6.1004(g); 5 U .S .C . app. § 9(b); Public Citizen v. Commission on the Bicentennial o f the U.S. Constitution, 622 F. Supp. 753 (D .D .C . 1985). 53 t probably come within FACA. It would be “established” by the Department, “in the interest of obtaining advice or recommendations” for the Department. 5 U.S.C. app. § 3(2). As the legislative history of FACA shows, the term “established” is to be interpreted in its “most liberal sense, so that when an officer brings together a group by formal or informal means, by contract or other arrangement, and whether or not Federal money is expended, to obtain advice and information, such group is covered by the provisions” of the Act. S. Rep. No. 1098, 92d Cong., 2d Sess. 8 (1972). In view of this broad meaning, the advisory or editorial board would come within FACA if it de­ liberated as a body.2 Furthermore, FACA would apply even though the advisory board, as we understand, could include some members who are full-time government of­ ficers or employees. Under the statute, the definition of “advisory committee” excludes “any committee which is composed wholly of full-time officers or employees o f the Federal Government.” 5 U.S.C. app. § 3(2)(iii). By impli­ cation, a committee that is not “wholly” composed of government employees or officers comes within the statute. See Center fo r Auto Safety v. Tiemann, 414 F. Supp. 215, 225 n.10 (D.D.C. 1976) (committee of state and federal employees is covered by FACA), remanded on other grounds sub nom. Cen­ ter f o r Auto Safety v. Cox, 580 F.2d 689 (D.C. Cir. 1978); S. Rep. No. 1098 at 8 (FACA motivated by abuses involving committees “whose membership in whole or in part” comes from outside the government). Although some courts have put limiting constructions on the meaning of “advisory committee,” we do not believe that such a limiting construction could be justified here, if the editorial or advisory board deliberated as a body in order to make its recommendations. The definition of “advisory committee.” if read as broadly as the language permits, is expansive. See, e.g., N ader v. Baroody, 396 F. Supp. 1231, 1232 (D.D.C. 1975), vacated as m oot, No. 75-1969 (D.C. Cir. Jan. 10, 1977). The language could extend to instances where application o f FACA—with its requirements of balanced mem­ bership, open meetings, and public availability of docum ents— would unconstitutionally intrude on the exercise o f the President’s authority. Courts have construed the statute to avoid such outcomes. See Public Citizen v. U nited States D e p ’t o f Justice, 491 U.S. 440 (1989) (FACA does not apply to American Bar Association’s committee on judicial selection); N ader v. Baroody, 396 F. Supp. at 1234-35 (FACA does not apply to casual, day-today meetings by which the President gathers information and views); see 2O n o c c a sio n , in d eterm in in g w h eth er a group is an “ ad v iso ry com m ittee,” O L C has relied upon lim it­ in g d ra ft g u id e lin e s fo r F A C A that w ere published in the F ed eral R egister, 28 Fed. R eg. 2306 (1973), but n o t a d o p te d , 39 F ed . R eg. 12,389 (1 9 7 4 ). These g u id elin es, O L C has stated, are an early a d m inistrative in te rp re ta tio n o f FA C A an d thus e n title d to som e w eight. See M em orandum fo r Irving P. M argulies, D e p u ty G e n e ra l C o u n se l, D epartm ent o f C om m erce, from T heodore B. O lson, A ssistant A tto rn e y G e n ­ e ra l, O ffic e o f L e g a l C o u n se l, Re: P resident’s Private Sector Survey on Cost Control at 6-7 (D ec. 15, 1982). E v e n u n d e r th ese guidelines, a g ro u p that has “all o r m ost” o f five "c h arac te ristic s” w ould p ro b ­ ab ly a p p ly to the p ro p o se d board (fix ed m em bership, estab lish m en t by federal official, d efined purpose o f p ro v id in g a d v ic e on particular s u b jec ts, and reg u lar o r p e riodic m eetings), and the last ch aracteristic m ig h t a lso a p p ly (an organizational stru c tu re , such as a g ro u p o f o fficers, and a staff). 54 also National Anti-Hunger Coalition v. Executive Comm, o f the P residen t’s Private Sector Survey on C ost Control, 557 F. Supp. 524, 530 (D.D.C.) (FACA, if read broadly, could violate separation of powers), a jf'd and re­ manded, 711 F.2d 1071 (D.C. Cir.), amended, 566 F. Supp. 1515 (D.D.C. 1983). However, no constitutional issues would be raised by applying FACA to the contemplated editorial or advisory board. The business of such a board would not touch on any “constitutionally specified task committed to the Executive,” Public Citizen v. United States D e p ’t o f Justice, 491 U.S. at 460, nor would regulating the board’s activities under FACA interfere with the President’s discharge of his duties. II. We believe that the Act would not reach an advisory board if the Depart­ ment sought only the views of individuals rather than the views of the board as a whole. FACA applies by its terms to “advisory committees.” “Advi­ sory committee” is a term that connotes a body that deliberates together to provide advice. Therefore, as a matter of statutory construction, we believe that FACA does not apply to a group which simply acts as a forum to collect individual views rather than to bring a collective judgment to bear. GSA regulations confirm the commonsense notion of what differentiates a “committee” from a collection of individuals.3 The regulations state that FACA does not cover: Any meeting initiated by a Federal official(s) with more than one individual for the purpose of obtaining the advice of indi­ vidual attendees and not for the purpose of utilizing the group to obtain consensus advice or recommendations. However, agencies should be aware that such a group would be covered by the Act when an agency accepts the group’s deliberations as a source of consensus advice or recommendations . . . . 41 C.F.R. § 101-6.1004(i). Although this provision is not entirely clear, it appears to mean that FACA does not cover a collection of individuals who do not perform a collegial and deliberative function and whose views are considered individually rather than as part of a “sense of the committee.” 5 In Public Citizen v. United States Dep't o f Justice, the C ourt held that the G SA re g u la tio n s w ere e n titled to “d im in ish ed d e fe re n ce " b ecau se they w ere not issued until ten years after FA C A w as passed and because FA C A , w h ile em p o w erin g G SA to issue “ adm inistrative g uidelines and m anagem ent c o n ­ tro ls,” 5 U .S.C . app. § 7 (c), did not ex p ressly authorize G SA to fill in the defin itio n s o f th e statutory term s. 491 U .S. at 463 n.12. But see 491 U.S. at 477-81 (K ennedy, J., concurring in the ju d g m e n t). N evertheless, the C o u rt d id not view the regulations as w holly w ithout w eight. 55 The clearest example of such a collection of individuals would be a group o f experts, each of whom reviews submissions in his own area of expertise. Nevertheless, even if each member of the editorial board reviews every ar­ ticle and sends his comments to the Department, the arrangement would still appear to fall outside FACA, because a collective judgment would not be sought. Indeed, since the regulation permits a meeting at which individual views are offered, it would, a fortiori, permit the solicitation of individual views o f board members who are not at a meeting. The board members would merely be acting in the same way as individual contractors who offer consulting services to the government. Cf. H.R. Rep. No. 1017, 92d Cong., 2d Sess. 4 (1972) (“The term advisory committee does not include any con­ tractor or consultant hired by an officer or agency of the government, since such contractor would not be a ‘committee, board, commission, council . . ., or sim ilar group . . . .” ’) (alteration in original). We caution, however, that this regulation has not been directly tested in the courts. W hile the regulation also permits a group to meet without having to comply with FACA, as long as only individual views are offered, such an arrangement would be open to legal challenge. As a practical matter, the dy­ namics of such a gathering are likely to lead to members exchanging, analyzing, and debating the views presented, and it would be difficult to argue, in that event, that the members were offering only discrete, individual opinions. If the editorial or advisory board is set up as a vehicle for the presenta­ tion o f individual views, it m ay be prudent to leave the board without any formal structure, such as officers or staff. One opinion in a case under FACA could be read to suggest that such “indicia of formality” may be relevant to whether the principle recognized in the GSA regulation would apply. See N atural Resources Defense Council, Inc. v. Herrington, 637 F. Supp. 116, 120 (D.D.C. 1986). W ILLIAM P. BARR Assistant Attorney General Office o f Legal Counsel 56

Write a legal research memo on the following topic.

Deportation Proceedings of Joseph Patrick Thomas Doherty T he A ttorney G eneral reversed the decision o f the Board o f Im m igration A ppeals that there was insuf­ ficient evidence that the deportation o f the respondent to the Republic o f Ireland w ould be preju d i­ cial to the interests of the United States, and rem anded the case to the BIA for further proceedings. June 9,1988 In re: Joseph Patrick Thomas Doherty (A26-185-231) In D e p o r t a t io n P r o c e e d in g s Under 8 U.S.C. § 1253(a), an alien is to be deported to a country designated by the alien if that country is willing to accept him “unless the Attorney General, in his discretion, concludes that deportation to such country would be prejudicial to the interests of the United States.” In this case, the Board of Immigration Ap­ peals (“BIA”) ruled that there was insufficient evidence that the deportation of respondent to the Republic of Ireland (“Ireland”) was prejudicial to the interests of the United States and accordingly rejected the request of the Immigration and Naturalization Service (“INS”) that respondent be deported to the United King­ dom of Great Britain and Northern Ireland (“the United Kingdom”). Pursuant to 8 C.F.R. § 3.1 (h)( 1)(iii), I granted the INS’s request to review the decision of the BIA. For the reasons set forth below, I disapprove the BIA ’s decision and con­ clude that it would be prejudicial to the interests of the United States for respon­ dent to be deported to Ireland and that he should be deported instead to the United Kingdom. I. Respondent is a citizen of both Ireland and the United Kingdom. He was con­ victed in the United Kingdom in 1981 of murder, attempted murder, and pos­ session of firearms and ammunition with intent to endanger life or cause serious injury to property. These charges arose out of an incident in which respondent and other members of the Provisional Irish Republic Army (“PIRA”) ambushed a British army convoy. One of the soldiers was killed during the attack. Prior to his sentencing, respondent escaped from prison and fled to Ireland and then to the United States, which he entered illegally in 1982. Respondent was arrested by the INS in 1983. The United States, acting on be­ half of the United Kingdom, instituted proceedings to extradite him to that coun­ 1 try. The district court, however, held that his actions involving the ambush of the British army patrol and escape from prison fell within the political offenses ex­ ception to the extradition treaty between the United States and England, and thus denied the request for extradition. In Re Doherty, 599 F. Supp. 270 (S.D.N.Y. 1984). Respondent’s deportation proceeding had been stayed during the pendency of the extradition litigation. When it resumed, respondent conceded his deportabil­ ity at a hearing before the immigration judge on the basis of having entered with­ out valid immigration documents, 8 U.S.C. §§ 1251(a)(1), 1182(a)(19), (20), and designated Ireland as the country to which he wished to be deported.1 INS ob­ jected to Ireland as the country of deportation on the ground that deportation there would be prejudicial to the interests of the United States, and contended that he should instead be deported to the United Kingdom. In support of this contention it supplied the immigration judge with newspaper articles and speeches on the general issue of terrorism. Although INS was given a continuance of one week to produce further evidence to support its contention, it failed to submit any ad­ ditional evidence. On the basis of this record, the immigration judge held that respondent should be deported to the country he had designated, Ireland, as INS had failed to pro­ duce any evidence that deportation to Ireland would be prejudicial to the inter­ ests of the United States. INS appealed this decision to the BIA, arguing that re­ spondent’s deportation to Ireland would be prejudicial to the interests of the United States. On March 11, 1987, the BIA affirmed the decision of the immi­ gration judge, stating: [W]e are unwilling to find that deportation to the Republic of Ire­ land would be prejudicial to the interests of the United States in the absence of clear evidence to support that conclusion. The Ser­ vice was granted a continuance to allow it to secure evidence of such interest, but it has produced none. BIA Decision o f March 11, 1987 at 5 (“March Decision”). When it issued this opinion, the BIA was unaware that on March 4 INS had filed a Motion to Supplement the Record or to Remand for Further Proceedings Before the Immigration Judge (“Motion”).2 The Motion contained an affidavit from Associate Attorney General Trott, signed on February 19,1987, stating that in his judgment the deportation o f respondent to Ireland would be prejudicial to the interests of the United States. 1 INS had added several other grounds fo r deportation, 8 U.S.C. § 1182(a)(9), (10), (27), (28)(F)(ii). These charges deal with criminal conduct, either actual or potential. INS requested that it be allowed to prove these addi­ tional charges. The immigration judge declined, holding that since respondent had conceded deportability, there was no point in proving that he was deportable on additional grounds. This holding was affirmed by the BIA BIA D ecision o f M arch 11, 1987 at 3. 2 INS had filed the M otion with the BIA on March 5, but it was apparently lost or misfiled due to administra­ tive error. BIA Decision o f M ay 22, 1987 at 3. 2 After the BIA had issued its March Decision, the INS successfully moved the BIA to reopen the appeal for consideration of its Motion. The BIA declined, how­ ever, to remand the case to the immigration judge, holding that the affidavit did not constitute previously unavailable evidence as required by BIA’s regulations, 8 C.F.R. §§ 3.2, 3.8. BIA Decision of May 22, 1987 at 3-5. In addition, the BIA stated that “the affidavit does not purport to be based upon evidence that re­ spondent’s deportation to the Republic of Ireland will be prejudicial to the United States’ interests. Rather, it appears to be based only upon the . . . logical infer­ ence” that our allies would view respondent’s deportation to Ireland as shielding a terrorist from punishment. Id. at 5.3 II. Respondent was notified that the Attorney General would consider only whether respondent’s deportation to Ireland would be prejudicial to the interests of the United States and whether, instead, he should be deported to the United Kingdom. Nonetheless, in his memorandum, respondent raises the issue of the Attorney General’s authority to review the BIA’s decision. Respondent appears to contend that the Attorney General lacks the power to overturn the BIA’s de­ cision, particularly if he were to do so after having considered Mr. Trott’s affi­ davit. Given that respondent has raised the issue, it is appropriate, before turning to the merits, to address the scope of the Attorney General’s decisionmaking au­ thority in this case. Section 1253(a), like most other provisions of the immigration law, vests the power to make determinations in the Attorney General personally.4 That power includes the power to receive evidence, make findings of fact, and decide issues of law. The Attorney General has delegated his decisionmaking authority, in the first instance, to the BIA and the immigration judges.5 They exercise “such dis­ cretion and authority conferred upon the Attorney General by [law] as is appro­ priate and necessary for the disposition” of the case. 8 C.F.R. §§3. l(d)( 1), 236.1. 3 Counsel for respondent was notified that the Attorney General would be reviewing the decision of the BIA, and would determine whether the deportation of respondent to Ireland would be prejudicial to the interests o f the United States and whether, instead, he should be deported to the United Kingdom. Counsel for respondent was given the opportunity to submit a memorandum addressing the question under review Counsel for respondent was also informed that the Attorney General would be considering Mr. Trott’s affidavit in the course o f his review of the BIA’s decision, and thus that respondent might wish to respond to the facts and reasoning contained in that af­ fidavit. Counsel for respondent filed a memorandum, as well as a shorter supplemental letter in response to a sub­ sequent letter from INS setting out its views on the case. In my review, I have considered these filings made by counsel for respondent and INS, the record o f the proceedings below, Mr. Trott’s affidavit, the decision in the ex­ tradition proceedings cited in Mr. T rott’s affidavit, and a letter from Michael M. Armacost, Undersecretary for Po­ litical Affairs at the Department o f State, setting forth the Department o f State’s views regarding the interests of the United States in this case. 4 See generally 8 U S.C § 1103. 5 The BIA is entirely a creation of the Attorney General. See Greene v INS, 313 F.2d 148 (9th Cir.), cert, d e­ nied, 374 U S. 828 (1963). Immigration judges receive some o f their powers and duties directly from Congress, 8 U.S C § 1252(b), and some by delegation from the Attorney General. See Lopez-Telles v INS, 564 F.2d 1302 (9th Cir 1977). 3 Thus, to the extent that the immigration judges or the BIA have authority to make determinations under section 1253(a), including the authority to receive evidence and make findings of fact, it is because they are exercising, by delegation, the Attorney General’s authority. Although he has delegated his decisionmaking authority in the first instance to the immigration judges and the BIA, the Attorney General has retained the au­ thority to review the decisions of the BIA pursuant to 8 C.F.R. § 3.1(h), and thus has retained final decisionmaking authority. Id. § 3.1(d)(2). The regulations set­ ting out his review authority do not expressly or by implication circumscribe the Attorney General’s statutory decisionmaking authority. Thus, when the Attorney General reviews a case pursuant to 8 C.F.R. § 3.1(h), he retains full authority to receive additional evidence and to make de novo factual determinations.6 Accordingly, there can be no doubt that the Attorney General has authority to consider evidence such as Mr. T rott’s affidavit even though that evidence was not considered by the BIA or the immigration judge. Nor can there be any doubt that the Attorney General has authority to reach a decision different from that of the BIA. In any event, in this case respondent was notified that the Attorney Gen­ eral would consider Mr. Trott’s affidavit and was given an opportunity to respond on the merits to the facts and reasoning contained in it, an opportunity which re­ spondent has exercised.7 III. Respondent’s actions and his criminal convictions were established by the dis­ trict court in the extradition proceeding. In Re Doherty, 599 F. Supp. 270 (S.D.N.Y. 1984). Respondent did not contest the factual findings of the court; in­ deed, he testified at length as to the events giving rise to his criminal conviction. Id. at 272. Respondent’s testimony and his criminal convictions as established in the extradition proceeding are summarized in the opinion of the district court: 6 M oreover, despite the contention of respondent, the regulations governing the BIA are not applicable to the A ttorney General. Thus, even after having rendered a decision, if the Attorney General was presented with a mo­ tion to reconsider, or a m otion to remand as th e BIA was, he would not be governed by 8 C.F.R. §§ 3.2 and 3.8 in deciding that motion. 7 On April 21,1988, respondent filed a m otion requesting that the Attorney General, and any individual to whom he m ight delegate decisionmaking authority, be rescued from an adjudicative role in these proceedings. Respon­ dent does not allege any personal bias as the basis for this motion. Rather, in essence the motion is based on the al* legation that the history o f the extradition litigation and these deportation proceedings demonstrates that the Jus­ tice Department is persecuting respondent by advancing improper legal theories and denying him procedural nghts. This does not appear to be, in fact, a "recusal” motion; rather, the motion appears to me to be a repetition of legal arguments that respondent has made in these proceedings and elsewhere. In any event, respondent’s allegation is without foundation. The Justice Department has in no way perse­ cuted respondent by advancing improper legal theories or denying him procedural rights. In this connection, I would note that, in an interim review o f these proceedings, the United States Court o f Appeals for the Second Circuit has already rejected a number o f the claims that respondent makes in this motion In particular, it held that it was “abun­ dantly clear'’ that the INS had a reasonable basis for appealing the adverse decision o f the immigration judge, and it also rejected the argument that the determination o f the district court that respondent was not extraditable in some way precluded his deportation Doherty v. M eese, 808 F.2d 9 3 8 ,942,944 (2d Cir. 1986). Accordingly, respondent's motion is denied. 4 Respondent Doherty was a member of the provisional Irish Re­ publican Army (“PIRA”). On May 2,1980, at the direction of the IRA, Doherty and three others embarked upon an operation “to engage and attack” a convoy of British soldiers. Doherty testified that he and his group took over a house at 371 Antrim Road in Belfast, and awaited a British Army convoy. Some three or four hours later, a car stopped in front of 371 Antrim Road and five men carrying machine guns emerged. These men, mem­ bers of the Special Air Service of the British Army (“SAS”), and Doherty’s group fired shots at each other. In the exchange of gunfire Captain Herbert Richard Westmacott, a British army captain, was shot and killed. Doherty was ar­ rested, charged with the murder, among other offenses, and held in the Crumlin Road prison pending trial. On June 10,1981, after the trial was completed but before any decision by the Court, Do­ herty escaped from the prison along with seven others. He was convicted in absentia on June 12, 1981 of murder, attempted mur­ der, illegal possession of firearms and ammunition, and belong­ ing to the Irish Republican Army, a proscribed organization. 599 F. Supp. at 272 (citations to transcript omitted).8 The facts established in the extradition proceedings show that respondent killed a member of the British army. While the victim was a soldier rather than a civil­ ian, the use of violence against a democratic society is unjustified irrespective of the identity of the victim. It is unjustified for the fundamental reason that in a de­ mocratic society the political system is available for peaceful redress of griev­ ances. Given the availability of peaceful alternatives, there is no legitimate rea­ son to resort to violence against any person whether or not that person has an official status within the State.9 The availability of such alternatives cannot be questioned here. While in some cases the question whether a society is democratic would be a difficult one, it is clear that the United Kingdom (of which Northern Ireland is a part) is a democ­ ratic society. Its citizens have fundamental political rights and are fully able to pursue their political goals through the electoral process. 8 Mr. T ro tfs affidavit states that respondent has committed certain additional crimes. Respondent states that he has not committed such crimes. I do not consider it necessary to resolve this factual dispute The record o f the ex ­ tradition proceeding establishes the fact that respondent has committed serious crimes. I base my decision on the facts established in the extradition proceedings, and do not consider it relevant whether or not respondent has com ­ mitted additional crimes. 9 This, o f course, is not to say that the United States may not also condemn acts of violence in a non-democratic state. In particular, it is the policy o f the United States to condemn acts of violence directed against non-com­ batants even by those who are otherwise legitimately seeking to oppose a non-democratic government. 5 It is the policy of the United States that those who commit acts of violence against a democratic state should receive prompt and lawful punishment. The factual premise of Mr. Trott’s affidavit is that this policy would be prejudiced if respondent were deported to Ireland because, while he could be prosecuted there for any crimes he committed in connection with his escape from prison, he could not be prosecuted there or extradited to the United Kingdom for murder or the other offenses he committed in connection with the ambush of the British army patrol. Trott affidavit at 4—5,1111 9, 11. This factual premise is challenged by re­ spondent, who asserts that he would be subject to extradition from Ireland to the United Kingdom, apparently after having served any sentence Ireland would im­ pose with respect to his escape from prison in the United Kingdom. Brief of Respondent-Appellee Joseph Patrick Thomas Doherty To The Attorney General at 24-25 (Jan. 8, 1988). Respondent apparently bases his statement that he would be subject to extra­ dition from Ireland to the United Kingdom on the Extradition Act recently pro­ mulgated in Ireland.10 Assuming for purposes of this decision that Irish law sup­ ports respondent’s contention, it would nonetheless be prejudicial to the interests of the United States for respondent to be deported to Ireland rather than the United Kingdom for two independent reasons. First, respondent has committed serious crimes in the United Kingdom and has received a prison sentence in the United Kingdom. As indicated above, it is the policy of the United States that those who commit acts of violence against a democratic state should receive swift and law­ ful punishment, and it is thus in the interests of the United States that respondent serve his sentence in the United Kingdom. Deporting respondent to Ireland would require the United Kingdom to invoke Irish law to secure respondent’s return to the United Kingdom. It is in our interest that he be sent directly to the United Kingdom instead. Second, Michael H. Armacost, the Undersecretary for Political Affairs at the Department of State, has communicated to me the views of the Department of State that a decision to deport respondent to Ireland rather than the United Kingdom would be injurious to our relations with the United Kingdom. Mr. Armacost states: We note in particular that the United Kingdom is the only State which has requested Doherty’s extradition from the U.S., and that the denial of that request by our courts met with great disap­ pointment. Additionally, Her M ajesty’s Government has repeat­ edly and vigorously expressed its desire that the United States ef­ fect Doherty’s deportation to the United Kingdom; to our knowledge, no other State has made a competing request. There­ fore, in our view, the government and people of the United King­ 10 I note that the affidavit o f counsel attached to the Motion o f Respondent to Reopen or Reconsider (Dec. 3, 1987), which, as discussed in the next section o f this opinion, was referred to me by the BIA, states that the Extra­ dition (European Convention on the Suppression o f Terrorism) Act went into effect in Ireland on December 1,1987, and that it changed the Irish law governing deportation such that respondent would now be subject to extradition from Ireland to the United Kingdom. Affidavit o f Mary Boresz Pike (Dec. 3, 1987) at UU 25-27 6 dom would not welcome a decision by the Attorney General to deport Doherty elsewhere. Moreover, the United Kingdom is the United States’ closest partner in our counter-terrorism efforts. Failure to return Doherty to the United Kingdom could undermine HMG[‘s] confidence in the ability of the United States to cooperate in counter-terrorism efforts of special bilateral concern. Finally, given the strength of British views on this issue, we be­ lieve that an Executive Branch determination not to deport Do­ herty to the U.K. might well prejudice broader aspects of our bi­ lateral relationship beyond cooperation in counter-terrorism activities. I certainly agree with the State Department that a decision to deport respondent to Ireland rather than the United Kingdom would be injurious to our relations with the United Kingdom.11 For the foregoing reasons, I conclude that deportation of respondent to Ireland would be prejudicial to the interests of the United States and that he should be deported instead to the United Kingdom. Accordingly, I disapprove the decision of the BIA affirming the order of the immigration judge that respondent be de­ ported to Ireland rather than the United Kingdom.12 11 Respondent points to the fact that he was held unextraditable under the United States-United Kingdom Ex­ tradition Treaty B nef o f Respondent-Appellee at 3-4. Deportation proceedings such as these, however, are inde­ pendent from, and governed by a different standard than, extradition proceedings. Doherty v. Meese, 808 F.2d 938, 944 (2d Cir. 1986). Application o f the extradition treaty involves an interpretation of the reciprocal legal obliga­ tions created by that treaty; the application o f 8 U.S.C. § 1253(a) involves a determination of the interests o f the United States — potentially a much broader inquiry Thus, the fact that respondent's actions were held to fall within the political offenses exception to the then applicable extradition treaty between the United States and the United Kingdom does not preclude a finding that it would be prejudicial to the interests of the United States for respon­ dent to be deported to Ireland. Respondent also asserts that he has a substantive right to be deported to the country he designates, and that denial o f that right would violate his constitutional right to due process and equal protection Brief of RespondentAppellee at 18-23. This latter claim is based on his assertion that he is the first alien whose country of designation has been rejected Respondent is, of course, correct that 8 U S.C. § 1253(a) authorizes an alien to designate a coun­ try o f deportation, but he fails to acknowledge that the statutory authorization is subject to the authority of the At­ torney General to reject the designated country. Nor has he been singled out unconstitutionally. In the analogous area of decisions whether or not to exercise prosecutorial discretion, a decision to prosecute is only unconstitutional if it is based on a characteristic such as race or religion Oyler v. Boles, 368 U.S. 448,456 (1962); Wayte v. United States, 470 U.S. 598,608 (1985). Respondent does not assert that he has been singled out based on such a charac­ teristic, nor would there be any grounds for him to do so. 12 My decision on the merits is based on the evidence and reasoning set forth in Part III of this opimon. I ex­ press no opinion regarding the BIA ’s decision, pursuant to 8 C.F.R. §§ 3.2 and 3.8, to deny INS’s Motion to Sup­ plement the Record or to Remand for Further Proceedings Before the Immigration Judge I do, however, disap­ prove o f the B IA ’s statement that Mr. Trott’s affidavit consisted solely o f “logical inferences” and thus was not “evidence.” BIA Decision o f May 12, 1987 at 5. The judgment under 8 U.S.C. § 1253(a) whether an alien’s des­ ignation o f a country o f deportation would be prejudicial to the interest o f the United States “must be based on an analysis o f the impact o f a particular deportation on United States' interests viewed as a whole by a politically re­ sponsible official ” Doherty v M eese, 808 F.2d at 943. Such an analysis is likely to take the form of an affidavit such as Mr. Trott’s. Indeed, it is difficult to see what other kind of evidence could be offered. Certainly, the INS 7 IV. On December 3, 1987, respondent filed a motion with the BIA requesting an order reopening the deportation proceedings, and remanding the case to the im­ migration judge for a hearing on respondent’s claims for asylum, withholding of deportation, and for redesignation of country of deportation. It appears that re­ spondent’s arguments are twofold: first, that the enactment of the Extradition Act in Ireland has changed the facts upon which he based his earlier concession of deportability and his waiver of other legal claims; and second, that because the prolongation of the administrative proceedings prevented him from being de­ ported to Ireland prior to the entry into force of this law, he should be allowed now to revoke his earlier concession and waiver. On February 2, 1988, the BIA issued a per curiam opinion referring respon­ dent’s motion to the Attorney General. BIA decision of February 2,1988 at 2. In its decision, the BIA stated it was taking this action because it was unclear whether it had authority to consider the motion while an appeal was pending before the Attorney General. Accordingly, the decision referred the motion to the Attorney General “for such action as he deems appropriate.” Id. I have concluded that it is appropriate to remand this motion to the BIA for its decision. I express no opinion as to how the BIA should decide the motion, or as to how the immigration judge or the BIA should make any subsequent determina­ tions in the event that all or part o f that motion were to be granted. In light of the length of time that the respondent’s deportation proceedings have already con­ sumed, however, I do recommend that the BIA give priority on its docket to this motion to the extent that, in the B IA ’s judgment, this can be done consistent with any applicable procedural rules and the reasonable requirements of the parties. V. For the foregoing reasons, the decision of the BIA is disapproved, and the case is remanded to the BIA for proceedings consistent with this opinion. E d w i n M e e s e III Attorney General 12 ( . . . continued) should not be required, for instance, to offer the affidavits o f foreign government officials stating what the official position o f their governments would be regarding a particular deportation, and stating whether they will lessen their cooperation with the United States as a result o f the deportation proceeding. Finally, I approve o f the decision of the BIA that the immigration judge, in the circumstances o f this case, did not abuse his discretion in refusing to let the INS prove additional charges. This refusal in no way impaired the IN S’s ability to establish that it would be prejudicial to the interests o f the United States for respondent to be de­ ported to Ireland. As the BIA stated: “Deportability and designation o f the country for deportation are separate and distinct issues.” M arch Decision at 5. Once deportability is established on any ground, as it was here, the INS can proceed to establish its objections to the country of designation under 8 U.S.C. § 1253(a). O f course even m cir­ cumstances similar to those here, the INS m ust be given the opportunity to prove when necessary additional facts that are relevant to its objection to a country o f designation, but that need not be done by proving additional grounds of deportability. 8 O PIN IO N S OF THE OFFICE OF LEGAL COUNSEL

Write a legal research memo on the following topic.

Rights-of-Way Across National Forests T h e A ct o f June 4, 1897, does not grant a right o f access to ow ners o f land surrounded by national forests, other than actual settlers, and the Secretary o f A griculture has discretionary authority to deny such access unless a right otherw ise exists. T h e com m on law doctrine o f easem ent by necessity does not apply to land ow ned by the federal governm ent, but a right o f access may be implied from the term s of a federal land grant in some circum stances. N o statutes currently modify any such implied right found to exist. Absent a prior existing access right, the Secretary o f A griculture may deny “adequate access” to land within a national forest w ilderness area, but must offer a land exchange as indemnity. June 23, 1980 T he Secretary of A g r ic u l t u r e This replies to your letter of September 18, 1979, requesting my opinion on several questions concerning access rights of private owners of land located within the boundaries of the national forests. Your letter poses the following questions: (1) Whether the Organic Act of June 4, 1897,1 grants to private landowners,2 other than actual settlers, a right of ingress to and egress from their properties located within the exterior boundaries of the national forests, or whether you may deny such access; (2) W hether private landowners with property located within the exterior boundaries of the national forests have a right-of-way across national forest lands by implied easement or easement by necessity enforceable against the federal government; and, if so, whether this right-of-way is limited to those instances in which the United States by its conveyance created a situation in which nonfederal lands are sur­ rounded by public lands; (3) Whether, if a right-of-way exists across national forests, it has been modified by: M y D e a r M r. S e c r e ta r y : (a) The Organic Act of June 4, 1897, 16 U.S.C. § 478; (b) The Wilderness Act, § 5(a), 16 U.S.C. § 1134(a); (c) The Act of October 13, 1964, 16 U.S.C. §§ 532-538; 1A c t o f J u n e 4. 1897, c h . 2. § 1. 30 S tat. 36 (c o d ifie d at 16 U .S .C . § 478). - A s used in th is o p in io n , th e te rm “ p riv a te la n d o w n e rs " re fe rs to all n o n fe d e ra l la n d o w n e rs unless o th e r w is e in d icated . 30 (d) The Montana Wilderness Study Act of 1977, § 3, 16 U.S.C. § 1132 note; or (e) Any other statute; and (4) Whether § 5(a) of the Wilderness Act, 16 U.S.C. § 1134(a), au­ thorizes you to deny access and offer as indemnity an exchange of national forest land for private land, or whether the private landowner may insist on a right of access. I conclude, first, that the Organic Act of June 4, 1897, does not grant a right of access to owners of land surrounded by national forests, other than actual settlers, and that you have discretionary authority to deny such access, provided that a right of access does not otherwise exist. Of course, access cannot be denied arbitrarily. Second, in my opinion, the common law doctrine of easement by necessity does not apply to land owned by the federal government. A right of access may be implied from the terms of a federal land grant only if Congress intended to grant the right. This intent may be show from the circumstances surrounding the grant, including the purpose for which it was made. Third, none of the statutes you have asked us to consider, nor any others that we have found, would modify such a right in any case in which it is found to exist. Fourth, I conclude that, absent a prior existing access right, you may deny “adequate access” under the Wilderness Act, but you must offer a land exchange as indemnity. I. Your first question is whether Congress has given private inholders 3 a statutory right of ingress and egress with respect to their property, including a right to build roads. Congress clearly has the power to grant such statutory rights.4 The question is whether it has done so. Your department concludes that the Organic Act of June 4, 1897, grants a right of access, including a right to build roads, to all owners 3 A n “ in h o ld e r" is a la n d o w n e r w h o se p ro p e rty is c o m p le te ly s u rro u n d e d b y p r o p e r ty o w n e d b y th e U n ited S tates. A g ain , as used in th is o p in io n th e te rm “ p riv a te inholder*’ re fe rs to all n o n fe d e ra l in h o ld ers. 4 T h e p o w e r to c o n tro l p u b lic lan d s is g ra n te d to C o n g re s s by th e C o n stitu tio n : T h e C o n g re s s shall h a v e P o w e r to D isp o se o f an d m ake all n ee d fu l R u les an d R e g u la tio n s re s p e c tin g th e T e r r ito r y o r o th e r p ro p e rty b e lo n g in g to th e U n ite d S ta l e s .. . . U .S. C o n st.. A rt. IV , § 3, cl. 2. T h is c o m p re h e n s iv e co n g re s s io n a l a u th o rity o v e r p u b lic lan d s in c lu d e s th e p o w e r to p re s c rib e th e tim es, c o n d itio n s , an d m o d e o f tra n sfe r (U n ite d S ta tes v. G ratiot. 39 U .S . (14 P et.) 526, 537-38 (1840)); to d e c la re th e e ffec t o f title e m a n a tin g fro m th e U n ite d S ta te s ( B a g n ell v. Broderick, 38 U .S. (13 P e t.) 436, 4 5 0 (1839)); a n d to p re v e n t u n la w fu l o c c u p a tio n o f p u b lic p r o p e r ly (C a m fie ld v. U nited Stoles. 167 U .S. 518, 525 (1897)). In K leppe v. N e w M exico. 426 U .S. 529, 539 (1976), th e C o u rt sta te d : “ (W jh ile th e fu rth e st re a c h e s o f p o w e r g ra n te d b y th e P r o p e r ty C la u se h a v e n o t yet been d efin ite ly re so lv e d , w e h a v e re p e a te d ly o b s e rv e d th a t th e p o w e r o v e r p u b lic la n d s th u s e n tru ste d to C o n g re s s is w ith o u t lim ita tio n ." 31 of land surrounded by national forest reserves. Section 478, the codifi­ cation of § 1 of the Act, provides: Nothing in sections 473 to 478, 479 to 482 and 551 of this title shall be construed as prohibiting the egress or ingress of actual settlers residing within the boundaries of na­ tional forests, or from crossing the same to and from their property or homes; and such wagon roads and other im­ provements may be constructed thereon as may be neces­ sary to reach their homes and to utilize their property under such rules and regulations as may be prescribed by the Secretary of Agriculture. Nor shall anything in such sections prohibit any person from entering upon such na­ tional forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof. Such persons must comply with the rules and regulations covering such national forests. In 1962, Attorney General Kennedy was asked by the Secretary of Agriculture for his opinion on the meaning of this statute. See 42 Op. A tt’y Gen. 127 (1962). Prior to 1962, your department interpreted the first sentence of § 478 as granting a right of access to all owners of land surrounded by a national forest. It reasoned that the term “ingress and egress” included the construction of wagon roads, and that the term “actual settlers” included any person or corporation owning property within the boundaries of national forests. As a result, private landown­ ers, including lumber corporations, were considered to have a statutory right to build logging roads. Id. at 130. Attorney General Kennedy opined that the term “actual settlers” includes original settlers who reside on the land, and excludes corporations and other business enti­ ties.5 He further concluded that the Secretary of Agriculture has discre­ tionary authority to impose a reciprocity requirement on requests by inholders, other than actual settlers, to use existing roads or to build new roads within national forests. Id. at 142-45. You have advised us that, notwithstanding the 1962 opinion, your department has continued to maintain that § 478 creates a right of access for all private inholders. This interpretation, you have informed us, has been based upon the second sentence of § 478, which was not directly addressed in the 1962 opinion. My review of the reasoning set forth in that earlier opinion, as well as my analysis of § 478 and its legislative history, convinces me that no such access right exists. The 1962 opinion analyzed § 478 by dividing it into the following three categories: (1) ingress and egress of actual settlers; (2) construc­ 5 B etw e en th e e x tre m e s o f th e o rig in a l s e ttle r a n d c o r p o ra tio n s o r b usiness e n titie s a re in te rm e d ia ry ty p e s o f p ro p e rty o w n e rs su c h as h e irs o r assigns o f an a c tu a l s e ttle r. T h e 1962 o p in io n d id n o t c o n s id e r w h e th e r th o se in te rm e d ia ry p ro p e r ty o w n e rs a re “ a c tu a l s e ttle rs ” w ith in th e m e an in g o f th e A c t. 42 O p . A tt’y G en . 127, 138 (1962). 32 tion of wagon roads and other improvements by actual settlers; and (3) entry upon the national forest for all proper and lawful purposes by any person. Id. at 127, 138-39. We are concerned here only with the third category because you inquire as to the rights of landowners other than actual settlers. In this category, “entry upon” may be subdivided into entry by mere ingress and egress, in particular the use of existing roads, and entry requiring construction of roads. Section 478 provides that any entry upon the forest reserve by any person is subject to the rules and regulations covering such national forests. The question now pre­ sented, therefore, is whether the Secretary’s regulations may, in appro­ priate cases, include denial of the requested entry. To determine correctly the scope of rights protected by the 1897 Act, it is necessary to study carefully the language of the Act itself, and its legislative history. As the legislative history is fully summarized in the 1962 opinion, I note only the aspects particularly relevant here. At the outset, it is helpful to review the sequence of events which led to the passage of the Act. During the 1800’s the public entered freely upon federal land, and Congress, although it did not provide specific legal authority for most uses of the public domain, made no serious attempt to halt such uses. See generally G. Robinson, The Forest Serv­ ice 2-5 (1978); Clawson & Held, The Federal Lands 46 (1957). This tacit approval constituted an open invitation to the public to avail itself of the federal land without specific authorization. Most people assumed that the United States was a temporary titleholder and that the land would eventually pass into private ownership. See R. Robbins, Our Landed Heritage: The Public Domain, 1776-1970, 5-6 (1976). The public land laws of the era, including preemption laws,6 homestead laws,7 and mining laws,8 presumed unimpeded access to the public domain. This policy of unimpeded access was recognized by the Supreme Court in Buford v. Houtz, 133 U.S. 320, 326 (1890), a case in which the Court considered the complaints of owners of alternate odd-numbered sections of land that sheepowners were damaging their land by driving 6T h e A c t o f M ay 29, 1830, 4 S tal. 4 2 0 -2 1 , first g ra n te d p re e m p tio n rig h ts to settlers. U n d e r its term s, an y p erso n w h o h ad se ttle d on th e p u b lic d o m a in an d h ad c u ltiv a te d a tra c t o f land w as a u th o riz e d to p u rc h a s e an y n u m b e r o f a c re s up to a m axim um o f 160 a c re s u p o n p ay in g to th e U n ite d S ta te s a m inim um p ric e fo r Che land. 7 T h e first h o m e stead a c t w as passed in 1862. A c t o f M ay 20, 1862, 12 S ta t. 3 9 2 -9 3 . It p ro v id e d th a t c e rta in p erso n s c o u ld e n te r u n a p p ro p ria te d p u b lic lan d s an d , u p o n satisfy in g c e rta in c o n d itio n s, o b ta in a G o v e rn m e n t p a te n t th e re fo r. 8T h e M in in g L a w o f 1866 (A c t o f J u ly 26, 1866, c h . 262, 14 S tat. 251) o p e n e d m in eral d e p o sits o n p u b lic lands to e x p lo ra tio n , claim , and o c c u p a tio n . T h e o n ly sp ecific re fe re n c e to rig h ts-o f-w ay ap p e a re d in § 8, w h ic h g ra n te d a rig h t-o f-w a y fo r th e c o n s tru c tio n o f h ig h w a y s o v e r p u b lic lan d s n ot re se rv e d fo r public uses. T h e M in eral L o c a tio n L a w o f 1872 (A c t o f M ay 10, 1872, c h . 752, 17 S tat. 9 1 -9 6 ) d id not m e n tio n ac cess ac ro ss th e p u b lic d o m a in . F ro m th e o u tse t, h o w e v e r, fed era l m in in g la w s h av e b een c o n s tru e d as an in v itatio n to e n te r, d is c o v e r, an d lo c a te claim s u p o n p u b lic lands n ot w ith d ra w n o r reserv ed . See, e.g.. Union O il Co. v. S m ith , 249 U.S. 337, 3 4 6 -4 7 (1919); U n ite d S ta te s v. Carlile. 67 l.D . 417, 421 (1960). See generally J. L o n e rg a n , A ccess to In te rm in g led M in e ra l Deposits, M in in g C la im s a n d Private L a n d s Across S u rro u n d in g Public D om ain a n d N a tio n a l Forest L a n d s. 8 L an d & W a te r L. R ev. 124 (1973). 33 sheep across it to reach the even-numbered sections of the public domain. The Court denied plaintiffs’ request for an injunction with the following explanation: We are of opinion that there is an implied license, grow­ ing out of the custom of nearly a hundred years, that the public lands of the United States . . . shall be free to the people who seek to use them where they are left open and unenclosed, and no act of government forbids this use. . .. The whole system of the control of the public lands of the United States as it had been conducted by the G ov­ ernment, under acts of Congress, shows a liberality in regard to their use which has been uniform and remarkable. 133 U.S. at 326-27. The Court refused to allow the complainants, under the pretense of owning a small portion of a tract of land, to obtain control over the entire tract and thereby deny defendants their privi­ lege to use the public domain. 133 U.S. at 322. See also, Broder v. Water Co., 101 U.S. 274, 276 (1879) (Court noted conduct of government encouraging development of mines and construction of canals and ditches on public domain); Forbes v. Gracey, 94 U.S. 762 (1876) (Court noted tacit consent to enter upon the public lands for the purposes of mining); Atchison v. Peterson, 87 U.S. (20 Wall.) 507 (1874) (Court noted “silent acquiescence” to the general occupation of the public lands for mining). In the late 19th century, efforts expanded to protect the Nation’s natural resources from the results of what were perceived as overly generous land-use policies. See Robbins, supra, at 301-24. In 1891, the Congress passed a law authorizing the President to reserve forest lands from the public domain. Act of March 3, 1891, ch. 561, §24, 26 Stat. 1103. One provision of this Act, § 24, later known as the Forest Re­ serve Act of 1891, was added as an amendment by the conference committee.9 The amended bill was considered in the closing days of the Congress on an oral presentation of its terms, no printed version being available. It was approved with little debate.10 The status of these forest 9 S e c tio n 24 p ro v id e d : [T ]h e P re sid e n t o f th e U n ite d S ta te s m a y , fro m tim e to tim e, set a p a rt an d re se rv e , in a n y S ta te o r T e r rito r y h a v in g p u b lic land b e a rin g forests, a n y part- o f th e p u b lic lands w h o lly o r in p a rt c o v e re d w ith tim b e r o r u n d e rg ro w th , w h e th e r o f c o m m e rc ia l valu e o r n o t, as p u b lic re s e rv a tio n s , an d th e P resid en t shall, by p u b lic p ro c la m a tio n , d e c la re th e esta b lish m e n t o f su ch re s e rv a tio n s an d th e lim its th e reo f. l0S o m e S e n a to rs ex p ressed c o n c e rn ab o u t not k n o w in g e x a c tly w h a t w as in .t h e r e p o rt, b u t th e m a jo rity felt th a t in th e c lo sin g d a y s o f th e session “ th e re has g o t to be s o m e th in g ta k en fo r g ra n te d o r else th e p u b lic b usiness c a n n o t g o fo rw a rd as it should.*’ 22 C o n g . R ec. 3 5 4 6 -4 7 (1891). T h e b rie f H o u se d e b a te a p p e a rs at 22 C o n g . R ec. 3 6 1 3 -1 6 (1891). 34 reserves was not defined, nor were guidelines provided for the manage­ ment of the reserves. On February 22, 1897, President Cleveland, pursuant to the 1891 Act, issued proclamations placing approximately 20 million acres of public land in forest reserves. Presidential Proclamations Nos. 19-31, Feb. 22, 1897, 29 Stat. 893-912. Within the boundaries of the reserves were villages, patented mining claims, homestead claims of actual set­ tlers and other developments. See 30 Cong. Rec. 901-02 (1897). Each of the proclamations contained the following admonition: “Warning is hereby expressly given to all persons not to enter or make settlement upon the tract of land reserved by this proclamation.” See, e.g., 29 Stat. 894 (1897). The proclamations also prohibited the general use of timber on the reserves, and jeopardized other theretofore legitimate activities of persons living within or near the reserves. Congressmen from states affected by the proclamations expressed outrage at what they considered the President’s hasty and ill-advised action. 30 Cong. Rec. 902 (1897). This reaction culminated in the passage of an amendment to the Sundry Civil Expense Appropriation Act, 30 Stat. 36 (1897). This amendment was designed to solve the “difficulties surrounding these forest reservations” (id. at 900) and to provide for “administering the forest so reserved” (id. at 909).11 Senator Carter of Montana explained that the amendment was offered “not for the purpose of benefitting any particular individual or class of individ­ uals, but for the purpose of permitting existing communities in the United States to enjoy the privileges which have ordinarily been ac­ corded to the pioneer settlers on the frontier everywhere.” Id. at 902. Other Senators also criticized the provision prohibiting entry or settle­ ment upon the reserves. Id. at 910-11. Senator Allison of Iowa stated: “[I]f segregations are made I think every interest existing at the time, however remote it may be, should be protected.” Id. at 911 (emphasis added). The House debate on the amendment indicates that the con­ gressmen also were concerned about preserving existing uses of the forest reserves. Id. at 1007-13 (remarks of Representatives Castle, Knowles, Lacy, and DeVries).12 The bill was referred to a conference committee, which reported the bill without changes in or comments upon the access section. Id. at 1242-43. During the Senate debate on the conference report, some of the same western Senators on whose behalf the amendment was intro­ duced sought to change the clause “actual settlers residing within the boundaries of national forests” to “bona fide settlers or owners within a reservation.” Id. at 1278-81. Senator White explained that the provision “ T h e a m e n d m e n t te m p o ra rily re s to re d th e w ith d ra w n lands to th e p u b lic d o m a in b y su sp e n d in g th e o p e ra tio n o f th e p re sid e n tia l p ro c la m a tio n s fo r a p p ro x im a te ly o n e year. 30 C o n g . R ec. 8 9 9 -9 0 0 (1897). I t also clarifie d th e P re s id e n t’s a u th o rity to re v o k e , m odify, o r su sp e n d s u c h p ro c la m a tio n s. ,2 F o r a c o m p le te d iscu ssio n o f th is le g islativ e h isto ry , see 42 O p . A lt’y G en . 127, 135-38 (1962). 35 as drafted did not adequately protect all persons who had acquired title in fee from the government. Id. at 1278. The amendment was defeated. Id. at 1285. Opponents of the amendment emphasized that there was no intent to deprive any person of access to his property, and that “what­ ever rights have been acquired as respects the public lands under the public land laws are reserved and preserved.” Id. at 1283. It was noted that entry upon the forests was subject to the rules and regulations of the Secretary of Interior (who then had this administrative authority) and that such rules would not likely prevent access to a person’s home. Id. at 1280 (remarks of Senator Berry). Notwithstanding the concession that the bill was “imperfect,” the conference report was agreed to. It was pointed out that further amendment would cause substantial delay and that any evils could be corrected by subsequent legislation. Id. at 1282—83. The House adopted the conference report without debate on this provision. Id. at 1397-401. This legislative history demonstrates that the effect of the second sentence of § 478 is to protect whatever rights and licenses with regard to the public domain existed prior to the reservation. We interpret the provision as a congressional declaration that the establishment of forest reserves would not alter the long-standing policy of allowing unimpeded access to the public land or interfere with the rights of persons then using the land, not as an affirmative grant of a broad right of entry to all persons. The express language of the statute provides that nothing in the act shall be construed to prohibit certain activities. The language grants no rights not already in existence. See Robbins, supra, at 323; John Ise, The United States Forest Policy 140 (1920). The protection of “lawful” and “proper” entry upon the reserves cannot be construed to limit congressional authority to regulate such entry. No vested right to use the public domain for a particular purpose arises from the government’s mere acquiescence in such use. In Light v. United States, 220 U.S. 523 (1911), the Court wrote: [WJithout passing a statute, or taking any affirmative action on the subject, the United States suffered its public domain to be used for such purposes. There thus grew up a sort of implied license that these lands, thus left open, might be used so long as the Government did not cancel its tacit consent. Buford v. Houtz, 133 U.S. 326. Its failure to object, however, did not confer any vested right on the complainant, nor did it deprive the United States of the power of recalling any implied license under which the land had been used for private purposes. Id. at 535. See also The Yosemite Valley Case, 82 U.S. (15 Wall.) 77 (1872); Frisbie v. Whitney, 76 U.S. (9 Wall.) 187, 194 (1869). Section 478 clearly subjects entry upon the national forests to reason­ able regulation by the Secretary. Prior to the enactment of the Federal 36 Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701-1782, and its repeal of § 2 of the Act of June 4, 1897, 16 U.S.C. § 551, insofar as the latter section applied to the issuance of rights-ofway through public lands, the Secretary was required to read § 478 and §551 together. United States v. Grimaud, 220 U.S. 506, 515 (1911). Section 551 provides that the Secretary shall “make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to pre­ serve the forests thereon from destruction . . . This section was held to confer upon the Secretary a “broad scope of regulation” intended to “be effective.” See 42 Op. A tt’y Gen. 127, 140, citing Chicago Mil. & St. P. Ry. v. United States, 218 F. 288, 298 (9th Cir. 1914), affd, 244 U.S. 358 (1917); Shannon v. United States, 160 F. 870, 873 (9th Cir. 1908). In Grimaud, the Court stated that the Secretary “is required to make provisions to protect the forest reserves from depredation and harmful uses.” 220 U.S. at 552. The Secretary’s authority to grant rights-of-way across national forest lands now is based on 16 U.S.C. §§ 532-538, and FLPMA, 43 U.S.C. §§ 1761-1771. Both statutes authorize the Secretary to protect the forest lands.13 This interpretation is consistent with the 1962 opinion of the A ttor­ ney G eneral.14 His review of the legislative history of §478 disclosed a legislative desire to protect explicitly only the rights of ingress and egress of actual settlers. 42 Op. A tt’y Gen. 127, 138. He found that entry upon the national forests by all other persons is subject to your rules and regulations covering the forests and discussed the scope of your regulatory authority as follows: ,3 S ectio n 504 o f F L P M A . 43 U .S .C . § 1764, d ire c ts ih e S e c re ta ry to issue re g u la tio n s w ith re s p e c t to th e te rm s an d c o n d itio n s o f th e rig h ts-o f-w a y . S e c tio n 505, 43 U .S .C . § 1765, req u ires, in ter alia, th a t e a c h rig h t-o f-w a y p erm it c o n ta in te rm s an d c o n d itio n s w h ic h w ill " p r o te c t th e en v iro n m en t.* ' “ p ro te c t F e d e ra l p r o p e rty ,“ an d “ o th e rw ise p ro te c t th e p u b lic in terest in th e lan d s tra v e rse d b y th e rig h ts-o fw a y o r a d ja c e n t thereto.** T h e A c t o f O c to b e r 13, 1964, 16 U .S .C . §§ 5 3 2 -5 3 8 , w h ic h g e n e ra lly c o n c e rn s th e c o n s tru c tio n an d m a in te n a n c e o f a sy stem o f ro a d s w ith in th e n atio n al fo rests, a u th o riz e s th e S e c re ta ry to g ra n t p erm a n e n t o r te m p o ra ry ea se m e n ts “ u n d e r su ch re g u la tio n s as he m ay p r e ­ sc rib e ." 16 U .S.C . § 533. u In 1964, in resp o n se to th e A tto rn e y G e n e ra l’s 1962 o p in io n . C o n g re s s passed le g islatio n .g iv in g th e S e c re ta ry th e a u th o rity to g ra n t p erm a n e n t o r te m p o ra ry ea se m e n ts o v e r la n d s m a n ag ed b y th e D e p a rtm e n t o f A g ric u ltu re . P ub. L. N o. 8 8 -657. § 2 , 78 S tat. 1089 (1964). T h e c o m m itte e re p o rts o f b o th th e H o u se a n d th e S en ate in d ic a te th a t C o n g re s s u n d e rs to o d th e A tto r n e y G e n e r a l's o p in io n to h o ld th a t § 478 w as “ n o t to be c o n s tru e d as a s ta tu to ry g u a ra n te e o f ac cess to p riv a te lan d s w ith in th e n atio n al fo re sts." S. R ep. N o. 1174, 88th C o n g ., 2d Sess. 4 (1964); H .R . R ep. N o . 1920. 88 th C o n g ., 2d Sess. 4 (1964). In th e S en ate r e p o rt, th e c o m m itte e stated : It sh o u ld b e ex p ressly n o te d th a t th is le g islatio n is in te n d e d n e ith e r to affirm n o r to a b ro g a te th e A tto rn e y G e n e ra l’s in te rp re ta tio n o f th e ac t o f J u n e 4. 1897 (30 S tat. 36, 16 U .S .C . 478), w ith resp ect to th e act*s as s u ra n c e o r lack o f assu ran ce, c o n c e rn in g a c cess to p riv a te lands ac ro s s n atio n al fo rest lands. H o w e v e r, th e p r e d ic ta b le efTect o f th is legislation w ill be to m inim ize th e lik elih o o d o f litig a tio n b e tw e e n th e U n ited S ta te s an d p riv a te la n d o w n e rs d e sig n e d to test a p p lic a tio n s o f th e A tto r n e y G e n e r a l’s in te rp re ta tio n o f th e ac t o f J u n e 4, 1897. T h is le g islatio n w ill p ro v id e to m o st o w n e rs o f p riv a te land a s a tisfa c to ry a lte rn a tiv e to s ta tu to ry a s s u ra n c e o f a c c e s s to an d fro m th e ir lands. T h e c o m m itte e th e re fo re re c o m m e n d s e n a c tm e n t o f th e ac t as a m en d ed . A m e n d m e n ts w h ic h w o u ld h a v e c re a te d a s ta tu to r y rig h t o f a c cess w e re re je c te d b o th in c o m m itte e (S. R ep . N o. 1174, at 8) an d on th e S e n a te flo o r. 110 C o n g . R ec. 16.413-15 (1964). 37 As the Supreme Court pointed out in United States v. Grimaud, 220 U.S. 506, 516-17, it is your function to determine what private use of the national forests in any given case is consistent with the purposes sought to be attained by the statute. The imposition of harsh and oner­ ous requirements not related to the benefit received or to your general responsibility to preserve and manage the national forests, might well constitute an abuse of discretion. 42 Op. A tt’y Gen. at 147. Your department argues that it has a long-standing policy that the Secretary is without discretion to deny access under § 478, and that a change in this policy would have a drastic effect on the well-established expectations of landowners within the national forests. It is a familiar principle that interpretations made contemporaneously with the enact­ ment of a statute and consistently followed for a long period are entitled to great weight, particularly if they have been relied on by the public. See Zuber v. Allen, 396 U.S. 168, 192-93 (1969); Alaska S.S. Co. v. United States, 290 U.S. 256, 262 (1933); Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315 (1933). Correspondingly, when an agency’s interpretation has been neither consistent nor long-standing, the weight given it diminishes accordingly. See Southeastern Community College v. Davis, 422 U.S. 397, 411-12 (1979); United Housing Founda­ tion, Inc. v. Forman, 421 U.S. 837, 858-59 n.25 (1975). Prior to 1962, your department relied on the first sentence of § 478 to find the same rights you now find in the second sentence. This 1962 revision of the department’s interpretation occurred almost 70 years after enactment of the statute.15 In any case, to the extent that my judgment is governed by the customary rules of statutory construction, I am guided by the overrid­ ing rule that the statute, and not the agency’s interpretation, is conclu­ sive. See, e.g., VolksWagenwerk v. Federal Maritime Commission, 390 U.S. 261, 272 (1968). Additionally, I am persuaded by the legislative history and by the common sense rule that legislative history disclosing Congress’ intent is entitled to more weight than a conflicting adminis­ trative interpretation and must control. See Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315 (1933); Sutherland, Statutes and Statutory Construction §49.04 (1973 & Supp. 1975). In sum, I conclude that § 478 does not grant access rights to private inholders other than actual settlers. In my opinion, absent a right of access otherwise granted to the landowner by Congress, you may deny requested access if such denial will protect the public interest in the 14 In S oriano v. U nited States. 494 F .2 d 681, 683 (9 th C ir. 1974), th e c o u r t d e c lin e d to g iv e sp ecial d e fe re n c e to a re g u la tio n p ro m u lg a te d m o re th a n 100 y ea rs a fte r e n a c tm e n t o f th e statu te. 38 land to be traversed. Because you may not arbitrarily deny access to private landowners, I do not foresee that this interpretation will have a drastic effect on their expectations. II. Your second question is whether an inholder has an easement by necessity or other implied easement across national forest land. The conclusion in Part I (that § 478 does not grant a right of access to private property across national forest reserves, and that, absent an access right otherwise guaranteed to a landowner by Congress, § 478 allows denial of access) renders apparent the importance of this question. In the 1962 opinion, the Attorney General stated that whether an easement by necessity lies against the government is a complex and controversial question. While he concluded that it need not be decided at that time, the Attorney General nonetheless offered his view that such an easement does not exist over public lands. 42 Op. A tt’y Gen. 127, 148. It is also my view that the common law doctrine of easement by necessity does not apply to congressional disposition of the public domain. This does not mean, however, that access cannot otherwise be implied. In my opinion, access may be implied if it is necessary to effectuate the purpose for which the land was granted. The doctrine of easement by necessity is a common law property concept that was recently described by the Supreme Court as follows: “Where a private landowner conveys to another individual a portion of his lands in a certain area and retains the rest, it is presumed at common law that the grantor has reserved an easement to pass over the granted property if such passage is necessary to reach the retained property.” Leo Sheep Co. v. United States, 440 U.S. 668, 679 (1979).16 Authoritative treatises on property law identify three basic prerequisites to the cre­ ation of an easement by necessity.17 First, the titles to the two tracts in question at some time must have been held by one person. This is the unity-of-title requirement. Second, the unity of title must have been severed by a conveyance of one of the tracts. Third, the easement must be necessary in order for the owner of the dominant tenement to use his land. This necessity must exist both at the time of the severance of title and at the time of application for the exercise of the easement.18 16 In L eo Sheep, th e C o u rt c o n s id e re d th e q u estio n w h e th e r th e U n ite d S ta te s h ad re s e rv e d an ea sem en t to pass o v e r lan d s w h ic h h ad passed fro m fed eral o w n e rs h ip . Y o u r in q u iry , c o n v e rs e ly , is w h e th e r th e U nited S tates g ra n te d an e a sem en t to a fed era l land g ra n te e to pass o v e r re ta in e d la n d s to re a c h th e c o n v e y e d p r o p e rty . T h e L eo S heep ca se is discu ssed in fra at p ag es 19-20, n o te 28. 17 S ee generally 3 P o w e ll on R eal P r o p e rty § 4 1 0 (1979); 2 T h o m p s o n o n R ea l P r o p e r ty § 363, at 4 2 4 -2 7 (1961 & S u p p . 1978); 3 T iffa n y , L a w o f R eal P ro p e r ty § 7 9 3 (3 d ed . 1939 S u p p . 1979); C o m m e n t, E asem ents B y W ay o f N ecessity Across F ederal L ands, 35 W ash. L . R ev . 105, 107 (1960). 18 C o u rts h a v e e m p h a siz e d v a rio u s fa c to rs in ap p ly in g th is d o c trin e . T h e R e s ta te m e n t o f P r o p e r ty § 4 7 6 , lists so m e o f th e se facto rs: Continued 39 See 3 Powell on Real Property §410, at 34-59 to 34-60 (1979); Simonton, Ways By Necessity, 25 Colum. L. Rev. 571, 573-79 (1925). Whether this doctrine applies to the government has not been resolved. Courts and commentators have differed.19 To determine whether the doctrine applies to property of the federal government, it is necessary to determine what law controls. Here fed­ eral law must control. The Constitution vests in Congress alone author­ ity to dispose of and make needful rules concerning the public domain. U.S. Const., Art. IV, § 3, cl. 2. As I have noted earlier in this opinion, this power is vested in Congress “without limitation.” United States v. Gratiot, 39 U.S. (14 Pet.) 526, 537 (1840). See also Kleppe v. New Mexico, 426 U.S. 529, 536 (1976); United States v. San Francisco, 310 U.S. 16, 29-30 (1940). The construction of grants by the United States has been held to be a federal, not a state, question. United States v. Oregon, 295 U.S. 1, 27-28 (1935), Packer v. Bird, 137 U.S. 661, 669 (1891).20 With regard to implying an easement across land which the United States still holds in trust for the public, therefore, federal law must control. Utah Power & Light Co. v. United States, 243 U.S. 389, 404 (1917).21 Federal property can be made subject to state law only when congressional authorization is clear and unambiguous. See EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 211 (1976); Kleppe v. New Mexico, 426 U.S. 529, 536 (1976). (a) w h e th e r (he c la im a n t is th e c o n v e y o r o r th e c o n v e y e e ; . (b) th e te rm s o f th e c o n v e y a n c e : (c) th e c o n s id e ra tio n g iv e n fo r it: (d ) w h e th e r th e claim is m a d e ag a in st a s im u lta n e o u s c o n v e y e e ; (e) th e ex ten t o f th e necessity ; ( 0 w h e th e r r e c ip ro c a l b en e fits resu lt to th e c o n v e y o r o r c o n v e y e e ; (g) th e m a n n e r o f use o f th e land b e fo re c o n v e y a n c e : (h) th e ex ten t to w h ic h p rio r use w as k n o w n . 19See. e.g.. U nited S ta tes v. D u n n . 478 F .2 d 443 (9 th C ir. 1973) (h o ld in g , w ith o n e ju d g e d issen tin g , th a t th e d o c tr in e is ap p lic a b le ); S u n S tuds. Inc.. 83 I.D . 518 (1976) (h o ld in g th a t th e d o c tr in e is n o t a p p lic a b le ). S o m e c o m m e n ta to rs s ta te th a t w a y s o f n e c e ssity d o n o t a rise ag a in st th e s o v ereig n . 2 G . T h o m p s o n , C o m m e n ta rie s o n th e L a w o f R eal P r o p e rty § 362, at 417 (1961); Jo n e s o n E a se m e n ts § 3 0 1 , at 247 (1898). O th e rs c o n c lu d e th a t th e d o c trin e sh o u ld be a p p lic a b le . 3 P o w e ll o n R eal P r o p e rty § 4 1 0 at 34-73 to 3 4 -7 4 (1979); 3 T iffan y , L a w o f R eal P r o p e r ty § 793 (3d ed . 1939). 20 W h e n , h o w e v e r, th e la n d h as passed fro m fed era l o w n e rs h ip , it b e c o m e s su b je c t to th e la w s o f th e s ta te in w h ic h it is lo c a te d . S ee O regon e x rel. S ta te L a n d Bd. v. C orvallis S a n d <& G ravel Co.. 429 U .S. 363, 372 (1977). It fo llo w s, th e re fo re , th a t w h e re title to b o th a d o m in a n t a n d se rv ie n t te n em en t h as p assed fro m fed era l o w n e rs h ip , th e q u e stio n w h e th e r th e u n ity -o f-title re q u ire m e n t is satisfied by p rio r g o v e rn m e n t o w n e rs h ip is a q u e stio n o f s ta te law . S ta te c o u r ts h a v e re a c h e d d iffe rin g o p in io n s o n th is q u e stio n . C o u rts in C a lifo rn ia , F lo rid a , In d ia n a, O k la h o m a , T e n n e sse e , an d T e x a s h a v e c o n c lu d e d th a t u n ity o f title c a n n o t be b ased on p rio r g o v e rn m e n t o w n e rs h ip . B u lly H ill Copper M in in g & S m e ltin g Co. v. Bruson. 4 C al. A p p . 180, 87 P. 237, 238 (1906); G uess v. Azar. 57 So. 2d 443, 444 (F la. 1952); C o n tin en ta l E nterprises Inc. v. Cain, 296 N .E .2 d 170, 171 (In d . 1973); D u d ley v. Meggs, 153 P. 1121, 1122 (O k la. 1915); Pearne v. C oal C reek M in. & M fg. Co.. 9 0 T e n n . 619, 6 2 7 -2 8 , 18 S .W . 4 0 2 -0 4 (1891); S ta te v. B lack Bros.. 116 T e x . 615, 6 2 9 -3 0 , 297 S .W . 213, 2 1 8 -1 9 (1927). C o u r ts in A rk an sas, M issouri a n d M o n ta n a h a v e re a c h e d th e o p p o s ite c o n c lu s io n . A rka n sa s S ta te H ig h w a y C o m m 'n v. M arshall. 485 S .W .2d 740, 743 (A rk . 1972); S n y d e r v. Warford, 11 M o . 513, 514 (1848); Violet v. M artin. 62 M o n t. 335, 205 P. 221, 223 (1922). 21 T h e ru le s a d o p tin g s ta te law to d e te rm in e w h a t rip a ria n rig h ts p ass in a fe d e ra l g r a n t a r e n ot a p p lic a b le to th e q u e s tio n o f w a y s a c ro s s fed era l land. U tah Power & L ig h t Co. v. U n ited States. 243 U .S. 389, 411 (1917). See O regon e x rel. S ta te L a n d Bd. v. Corvallis S a n d <£ G rave! Co.. 429 U .S . 363, 372 (1977); U nited S ta tes v. Oregon. 295 U .S. 1, 27 (1935); H a rd in v. Jordan. 140 U .S. 371 (1891). 40 To determine what rights have passed under federal law, it is neces­ sary to interpret the statute disposing of the land.22 It is a recognized principle that all federal grants must be construed in favor of the government “lest they be enlarged to include more than what was expressly included.” United States v. Grant River Dam Authority, 363 U.S. 229, 235 (1960); United States v. Union Pac. Ry., 353 U.S. 112, 116 (1957).23 In Pearsall v. Great No. Ry., 161 U.S. 646, 664 (1895), the Court wrote: “Nothing is to be taken as conceded . . . but what is given in unmistakeable terms, or by an implication equally clear. . . .” These general rules must not be applied to defeat the intent of Con­ gress, however. The Supreme Court has stated that public grants are “not to be construed as to defeat the intent of the legislature, or to withhold what is given either expressly or by necessary or fair implication. . . .” United States v. Denver & Rio Grande R.R., 150 U.S. 1, 14 (1893). In all cases, the intent of Congress must control. Id. See also Missouri, K. & T. Ry. v. Kansas Pac. Ry., 97 U.S. 491, 497 (1878). These rules dictate that if it is clear that Congress intended to grant access, such access must be acknowledged, its scope consistent with the purposes for which the grant was made.24 An implied easement defined by the actual intent of Congress must be distinguished from an ease­ ment by necessity, which relies on a presumed intent of the parties. There are no clear uniform rules for determining the scope of an easement by necessity. In some cases, it has been held that the scope includes whatever access is necessary for any reasonable, beneficial use of the dominant tenement, not merely the use for which the grant was made. See, e.g., New York Cent. R.R. v. Yarian, 219 Ind. 477, 39 N.E.2d 604, 606 (1942); Soltis v. Miller, 444 Pa. 357, 283 A.2d 369, 370-71 (1971); Meyers v. Dunn, 49 Conn. 71, 78 (1881); Whittier v. Winkley, 62 N.H. 338, 339-40 (1882); Jones on Easements § 323 (1898). Since the common law doctrine is based on the presumed intent of the parties, its operation may have the effect of disregarding or possibly frustrating the intention of the grantor, absent express language in the conveyance denying an easement. 2 G. Thompson, Law of Real Property § 362 (1961), citing Lord v. Sanchez, 136 Cal. App. 2d 704 289 P.2d 41 (1955); Moore v. Indiana & Michigan Elec. Co., 299 Ind. 309, 95 N.E.2d 210 (1950). Thus, if the doctrine were allowed to operate where the G ov­ ernment is the grantor, the actual intent of Congress would, at the least, 23 W e n o te th a t y o u r d e p a rtm e n t, w ith o u l re a c h in g th e ea sem en t-b y -n e cessity issue, h as c o n c lu d e d th a t an ex a m in atio n o f th e g ra n tin g s ta tu te is essential to d e te rm in in g a c cess rig h ts. S ee M e m o ra n d u m : A c c e ss to S ta te an d P riv a te In h o ld in g s in N a tio n a l F o re s ts at 18, U .S. D e p t, o f A g ric u ltu r e (O c t. 31, 1979). 23 S ee also C a m fie ld v. U nited States, 167 U .S. 518, 52 4 -2 6 (1897); U n ited S ta te s v. C larke, 529 F .2 d 984, 986 (9 th C ir. 1976). 2*See C u rtin v. Benson. 222 U .S. 78, 86 (1911). In U nited States v. 9.947.71 Acres. 220 F. S u p p . 328, 331 (D . N ev . 1963), th e c o u rt re c o g n iz e d an im plied a c cess rig h t fo r m in in g p u rp o s e s w h e re a m in in g claim o w n e r had to c ro s s p u b lic d o m a in to reac h his claim . C f A rizona v. C alifornia, 373 U .S. 546, 5 9 9 -6 0 0 (1963); W inters v. U nited States, 207 U .S. 564, 575-77 (1908). T h e se ca ses re c o g n iz e an im p lied rese rv a tio n o f w a te r rig h ts fo r Indian reserv atio n s. 41 become irrelevant, and, in some cases, would be thwarted. Plainly, the application of the common law doctrine would be inconsistent with the established principles that the intent of Congress in disposing of federal land must control, and that rights in government land cannot be pre­ sumed to pass by implication.25 The doctrine of easements by necessity was developed to settle disputes between private parties, not disputes involving the federal governm ent.26 The federal government has at one time held title to over three-fourths of the territory of the United States; it today retains title to approximately one-third of the nation’s land. One-Third of the Nation’s Land: A Report to the President and to Congress by the Public Land Law Review Comm’n, at 8 (1970). It holds property as sovereign, as well as proprietor, and exercises power beyond that which is available to a private party. Kleppe v. New Mexico, 426 U.S. 529, 539 (1976); Light v. United States, 220 U.S. 523, 536-37 (191 1). Throughout its history, statutes have been enacted allowing access across its land.27 It holds land in trust for all the people and in dispos­ ing of it is concerned with the public interest. Utah Power & Light Co. v. United States, 243 U.S. 389, 409 (1917); Causey v. United States, 240 U.S. 399, 402 (1916). In Causey, the Court wrote that “the Government in disposing of its public lands does not assume the attitude of mere seller of real estate at its market value.” Id. For these reasons, other doctrines applicable to private landowners have been held inapplicable to the sovereign. In Jourdan v. Barrett, 45 U.S. (4 How.) 169, 184-85 (1846), the Supreme Court held that no prescriptive rights may be obtained against the sovereign, and in Field v. Seabury, 60 U.S. (19 How.) 323, 332-33 (1856), the Court held that government patents may not be collaterally attacked as can grants from a private party. In United States v. California, 332 U.S. 19 (1947), the 25 It is n o te w o n h y th a t sin ce th e A tto rn e y G e n e ra l o p in e d in 1962 th a t th e d o c tr in e o f ea se m e n ts by n ec essity w as n o t e n fo rc e a b le ac ro s s fed era l land, C o n g re s s has n o t m o d ified th e rule. A lth o u g h this g e n e ra lly is n o t s tro n g e v id e n c e w h e n th e re is no in d ic a tio n th a t C o n g re s s w as a w a re o f th e ru lin g (Z u b e r v. A llen, 396 U .S. 168, 194 (1969)), it is m o re p e rs u a s iv e w h e n , as h e re , co n g re s s io n a l ac tio n d ire c tly re su lte d from th e o p in io n . S e e n.14, supra. S ee generally B ean v. L ed m a r. 368 U .S. 403, 4 1 2 -1 3 (1962); U nited S ta tes v. M idw est O il Co.. 236 U .S. 459, 481 (1915). 26T h e d o c trin e has b een tra c e d to e a rly E n g lish o rig in s. S im o n to n , W ays o f N ecessity, 25 C o lu m . L. R ev . 571, 57 2 -7 8 (1925). It u su ally has b een p re d ic a te d on p u b lic p o lic y fa v o rin g lan d u tiliz atio n an d a p re s u m p tio n o f in ten t. 3 P o w e ll on R ea l P ro p e rty § 4 1 0 at 3 4 -5 9 to 3 4 -6 0 (1979). 21 See. e.g.. A c t o f M a rc h 3, 1875, ch . 252, § 1, 18 S tat. 482 (re p e a le d 1976) (rig h t o f w ay fo r ra ilro ad s); A c t o f M a rc h 3, 1891, c h . 561, § 18 (re p e a le d 1976) ( rig h t o f w a y fo r irrig a tio n d itc h e s an d c a n als); A c t o f Ja n . 21, 1895, ch. 37, § I (re p e a le d 1976) (rig h t o f w a y fo r tra m ro d s , ca n als, and rese rv o irs); A c t o f J u ly 26, 1866, c h . 262, § 8, 14 S tat. 253 (re p e a le d 1976) (rig h t o f w ay fo r h ig h w ay s). T h e s e s ta tu te s w e re re p e a le d by th e F e d e ra l L a n d P o lic y an d M an a g e m e n t A c t o f 1976 ( F L P M A ) , P u b . L. N o . 9 4 -5 7 9 , § § 5 0 1 -5 1 1 , 90 S tat. 2776-82 (co d ifie d at 43 U .S .C . § § 1 7 6 1 -1 7 7 1 ). F L P M A p ro v id e s, w ith c e rta in e x c e p tio n s, th a t rig h ts o f w a y a c ro s s g o v e rn m e n t lan d c a n o n ly b e o b ta in e d as p ro v id e d in th a t A c t. 43 U .S .C J770. G e n e ra l a n d c o m p re h e n s iv e le g islatio n , p re sc rib in g a c o u rs e o f c o n d u c t to be p u rs u e d a n d th e p a rtie s an d th in g s a ffec ted , an d s p ecifically d e s c rib in g lim itatio n s an d e x c e p tio n s , is in d ic a tiv e o f a le g isla tiv e in ten t th a t th e s ta tu te sh o u ld to ta lly s u p e rs e d e an d re p la c e th e c o m m o n la w d e a lin g w ith th e s u b je c t m a tte r. Isbrandtsen Co. v. Johnson. 343 U .S. 779, 7 8 7 -8 8 (1952); S n e e l v. R uppert, 541 P .2 d 1042 (W y o . 1978); J. S u th e rla n d , S ta tu te s an d S ta tu to ry C o n s tru c tio n § 50.05 (1973 & S u p p . 1978). 42 Court refused to hold that the federal government had forfeited by laches or estoppel its interest in littoral property, stating: “The Govern­ ment, which holds its interests here as elsewhere in trust for all the people, is not to be deprived of those interests by the ordinary court rules designed particularly for private disputes over individually owned pieces of property. . . Id. at 40. These same reasons lead me to conclude, as did the Court in Leo Sheep, that the doctrine of easements by necessity as applicable to federal lands is “somewhat strained, and ultimately of little signifi­ cance” and that the “pertinent inquiry . . . is the intent of Congress.” 28 A grantee is entitled instead to reasonable access across government land to use his property, for the purposes for which the land grant was made, if such an access right either expressly or impliedly arises from the act authorizing the land grant.29 To interpret correctly congressional intent underlying a statutory land grant, it is necessary to look at the condition of the country when the grant was made, as well as the declared purpose of the grant. Leo Sheep Co. v. United States, 440 U.S. 668, 682 (1979); Winona & St. Paul R.R. v. Barney, 113 U.S. 618, 625 (1885); Platt v. Union Pacif. R.R., 99 U.S. 48, 64 (1878). In Superior Oil Co. v. United States, 353 F.2d 34 (9th Cir. 1965), for example, the court looked to the purpose of the grant and concluded that the scope of the implied access was not broad enough to include the type of entry sought. The plaintiff oil company was a lessee of a religious mission which had received a land patent to facilitate and encourage its activities among the Indians. The land in question was surrounded by the Hopi Reservation, which the United States held in trust for the Indians. The issue on appeal was whether 28In L eo Sheep Co. v. U nited States. 440 U .S. 668 (1979), th e C o u rt, in h o ld in g th a t th e fed eral g o v e rn m e n t d o e s not h a v e a re s e rv e d e a sem en t by n ec essity ac ro s s th e lan d o f its g ra n te e o r its g r a n te e 's su ccesso r, w ro te : F irst o f all, w h a te v e r rig h t o f p assag e a p riv a te la n d o w n e r m ig h t h av e , it is n o t at all c le a r th a t it w o u ld in c lu d e th e rig h t to c o n s tru c t a ro a d fo r p u b lic a c cess to a re c re a tio n a l a rea . M o re im p o rta n tly , th e ea sem en t is n o t a c tu a lly a m a tte r o f n ec essity in th is ca se b e c a u se th e G o v e rn m e n t has th e p o w e r o f em in en t d o m a in . J u ris d ic tio n s h av e g e n e ra lly seen em in en t d o m a in an d e a sem en ts by n ec essity as a lte rn a tiv e w a y s to e ffect th e sam e results. . . . [S Jtate c o u rts h a v e held th a t th e “e a sem en t b y n e c e ssity ” d o c trin e is not av a ilab le to th e so v ereig n . Id. at 679-81 (fo o tn o te s o m itte d ). O f c o u rs e , th e o p in io n in L eo Sheep is n o t a lo n e d is p o s itiv e o f th e q u estio n you h a v e asked. It in v o lv e d a claim by th e g o v e rn m e n t g ra n to r, n o t th e p riv a te g ra n te e , o f an e a sem en t by n ecessity. T h e C o u rt th e re d id rely su b stan tially on th e p o w e r o f em in en t d o m a in , an d w as c a re fu l n o t to d e c id e th e b ro a d e r q u e s tio n o f th e av ailab ility o f th e ea se m e n t-b y -n e c e ssity d o c trin e g en e ra lly . In an e a rlie r ca se refu sin g to find a re se rv e d w a y o f n ec essity fo r a p u b lic ea se m e n t ac ro ss p riv a te la n d , a d is tric t c o u r t s tated m o re b ro a d ly : ‘i t is, in m y ju d g m e n t, v e ry d o u b tfu l w h e th e r th e d o c trin e o f w ay s o f n ec essity has a n y a p p lic a tio n to g ra n ts fr o m th e g e n e ra I G o v e rn m e n t u n d e r th e p u b lic land la w s ." U nited S ta tes v. R indge, 208 F. 611, 618 (S .D . C al. 1913). S ee also. S u n S tu d s Inc., 83 I.D . 518 (1976). B u t see, B ydlon v. U nited States. 175 F . S u p p . 891 (C t. C l. 1959); M a c k ie v. U n ited States. 195 F . S upp. 306 (D . M inn. 1961). 29 O f c o u rs e , ev e n w ith o u t su c h an e n title m e n t, a la n d o w n e r m ay ap p ly fo r an ea se m e n t p erm it u n d e r p ro c e d u re s esta b lish ed p u rsu a n t to o th e r statu tes. S ee F L P M A , 43 U .S .C 1761-1771; A c t o f O c to b e r 13, 1964, 16 U .S .C . 532 et seq. It c a n n o t b e assum ed th a t C o n g re s s , o r fed era l r e g u la to ry a u th o ritie s , w ill e x e c u te th e ir p o w e r in su ch a w a y as to b rin g ab o u t in ju stice . S e e U n ited S ta te s v. C alifornia, 332 U .S. 19, 40 (1947). 43 the oil company was entitled to move heavy equipment across the reservation to drill for oil on the leased property. In ruling that access was limited to the scope of the grant, the court stated: Certainly it cannot be said either that public policy de­ mands or that the Indians’ trustee impliedly intended a grant of a way of access across Indian lands greater in scope than was required for mission purposes and whose greater scope was necessary only in order to permit the granted lands to be used in a fashion adverse to the interests of the Indians.30 Although some courts that have dealt with this issue have written in terms of easements by necessity, most of them in effect have looked at the grant in question and limited access according to the purpose of the grant. The Superior Oil case was relied on by the Tenth Circuit in Kinscherff v. United States, 586 F.2d 159 (10th Cir. 1978), which held: An easement by necessity for some purposes could possibly have arisen when the United States granted the patent to plaintiffs’ predecessor in interest. . . . While nothing ordi­ narily passes by implication in a patent, Walton v. United States, 415 F.2d 121 (10th Cir.), an implied easement may arise within the scope o f the patent. Id. at 161 (emphasis added). Similar statements appear in Utah v. Andrus, (unreported) C 79-0037 (D. Utah Oct. 1, 1979), in which Utah claimed an easement by neces­ sity for access to its school grant lands. Relying on United States v. Dunn, 478 F.2d 443, 444 n.2 (9th Cir. 1973), the district court con­ cluded: “Although this common law presumption might not ordinarily apply in the context of a Federal land grant, the liberal rules of construction applied to school trust land allowed for the consideration of this common law principle and justify its application here.” 31 The 30T h e c o u r t, in e ffec t, c re a te d a h y b rid d o c trin e , a p p ly in g p rin c ip le s o f b o th w a y s o f n ec essity an d w a y s c r e a te d b y th e a c tu a l in ten t o f th e g ra n to r: A p p e lla n t's p o sitio n is sim p ly th a t sin ce th e p a te n t fo r th e M ission w as in u n re s tric te d fee sim p le it c a rrie d w ith it by im p lic a tio n a w a y o f n e c e ssity o v e r lan d s o f th e U n ited S ta te s fo r all p u rp o s e s to w h ic h th e c o n v e y e d land m ig h t la w fu lly b e put. S u c h is n o t th e law . T h e s c o p e a n d e x te n t o f th e rig h t o f a c c e s s d e p e n d s n o t u p o n th e s ta te o f title o f th e d o m in a n t e s ta te , n o r th e e x iste n c e o r la c k o f lim itatio n s in th e g ra n t o f th a t esta te, b u t u p o n w h a t m ust, u n d e r th e c irc u m s ta n c e s , b e a ttrib u te d to th e g r a n to r e ith e r by im p lic a tio n o f in te n t o r by o p e ra tio n o f la w fo u n d e d in a pu b lic p o lic y fa v o rin g land u tiliz atio n . S u p erio r O il Co. v. U nited Stales, 353 F .2 d 34, 36 -3 7 (9 th C ir. 1965). 31 S lip O p . at 8. In U nited S ta te s v. D u n n , 478 F .2 d 443 (9 th C ir. 1973), th e U n ite d S ta te s s o u g h t an in ju n c tio n to p re v e n t D u n n , w h o h e ld title as a g ra n te e o f a ra ilro a d , fro m c o n s tr u c tin g an ac c e ss ro a d fo r c o m m e rc ia l a n d re sid e n tia l d e v e lo p m e n t o f his la n d . T h e d is tric t c o u r t g ra n te d p a rtia l su m m a ry ju d g m e n t, h o ld in g d e fe n d a n ts tre sp a ss e rs a n d th e g o v e rn m e n t e n title d to im m e d ia te possession. T h e N in th C irc u it re v e rs e d , h o ld in g th a t s u m m a ry ju d g m e n t w a s p re c lu d e d b e c a u se d e fe n d a n ts raised th e fa c tu a l issue w h e th e r th e y h a d an e a se m e n t by n ec essity . Id. at 446. T h e D u n n c o u r t 's o n ly d iscu ssio n o f th e a p p lic a tio n o f th e d o c trin e , h o w e v e r, a p p e a re d in a f o o tn o te re sp o n se to th e d issen tin g ju d g e . In th e d isse n t. J u d g e W rig h t s ta te d sim p ly th a t h e " w o u ld h o ld th a t u n d e r th e facts o f th is ca se th e C ontinued 44 court went on to hold that this right is not absolute, however. It reasoned: Under the Constitution Congress has the authority and responsibility to manage Federal land. U.S. Const, art. IV, § 3, cl. 2. . . . There is nothing in the school land grant program that would indicate that when Congress devel­ oped the school land grant scheme it intended to abrogate its right to control activity on Federal land. Further, it is consistent with common law property principles to find that the United States, as the holder of the servient tene­ ment, has the right to limit the location and use of Utah’s easement of access to that which is necessary for the state’s reasonable enjoyment of its right. . . . Thus, the court holds that, although the State of Utah or its lessee must be allowed access to section 36, the United States may regulate the manner of access under statutes such as FLPMA. Slip Op. at 21. Cases like Superior Oil, Kinscherff, and Utah v. Andrus lend support to my conclusions with respect to implied rights to access across federal land. While the common law easement by necessity does not run against the United States, a right to access may nonetheless be implied by reference to particular grants. And, to the extent that such implied rights exist, your broad authority—delegated to you by Con­ gress—to manage forest reserves empowers you to regulate their exer­ cise. See United States v. Perko, 108 F. Supp. 315, 322-23 (D. Minn. 1952), affd, 204 F.2d 446 (8th Cir.), cert, denied, 346 U.S. 832 (1953); Perko v. Northwest Paper Co., 133 F. Supp. 560, 569 (D. Minn. 1955). Determining what implied rights exist in the numerous federal land grants is beyond the scope of this opinion. As set forth above, this determination depends on when the grant was made and for what purpose. Mindful of the goal of giving effect to legislative intent, you must look to the rules the Supreme Court has adopted for interpretation of federal land grants. As discussed previously, land grants generally are to be strictly construed. This rule must be balanced against the conflicting rule that in some situations, certain types of land grants may deserve a more liberal construction because of the circumstances sur­ rounding passage of the statutes in question. See generally Leo Sheep Co. v. United States, 440 U.S. 668, 682-83 (1979) (railroad land grants); d o c trin e o f ea se m e n t b y n ec essity is n o t b in d in g o n th e U n ite d S tates. . . Id. at 446. T h e m a jo rity resp o n d ed ; S in ce th e G o v e rn m e n t d id n o t, in o u r ju d g m e n t, raise th e p o in t u p o n w h ic h J u d g e W rig h t bases his d issen t, w e h a v e n o t d iscu ssed it in th e o p in io n , b u t n e v e rth e le ss d id g iv e it c o n s id e ra tio n a n d c o n c lu d e d th a t it la ck ed m erit. Id. at 444 n.2. I d o not find th is ca se p ersu asiv e a u th o rity fo r a p p lic a tio n o f th e d o c trin e . 45 Wyoming v. United States, 255 U.S. 489, 508 (1921) (state school land grants). Absent express language to the contrary, however, a grant should not be construed to include broad rights to use retained govern­ ment property, particularly in the case of gratuitous grants. See United States v. Union Pac. R.R., 353 U.S. 112 (1957); Camfield v. United States, 167 U.S. 518 (1897); Wisconsin Central R.R. v. United States, 164 U.S. 190 (1896); 30 Op. A tt’y Gen. 263, 264 (1941). Once the right, if any, is found to exist, you should consider how that right reasonably should be regulated to protect the public’s interest in federal property. It is beyond dispute that such rights are subject to reasonable regulation without a resulting inverse condemnation. See generally Johnson v. United States, 479 F.2d 1383 (Ct. Cl. 1973) (restric­ tion of access by erection of fence enclosing extended portion of high­ way held not a taking); 2 Nichols on Eminent Domain § 5.72[1] (1978). Nonetheless, fewer restrictions properly may be imposed on well established, developed uses than on unexercised rights. See Penn Central Transp. Corp. v. City o f New York, 438 U.S. 104 (1978); Euclid v. Amber Realty Co., 272 U.S. 365 (1926). Frustration and appropriation are essentially different things. United States v. Grand River Dam Authority, 363 U.S. 229, 236 (1960), citing Omnia Co. v. United States, 261, 502, 513 (1923). III. Your third question is whether any act of Congress has modified any implied rights that may accompany federal grants. Of particular con­ cern are the Wilderness Act, 16 U.S.C. §§1131-1136, and various wilderness study acts.32 See, e.g., Montana Wilderness Study Act of 1977, Pub. L. No. 95-150, 91 Stat. 1243; Sheep Mtn. and Snow Mtn. Wilderness Areas, et al., Pub. L. No. 94-557, § 3, 90 Stat. 2635 (1976). These wilderness study acts require you to exercise your discretion so as to preserve the wilderness character of the land.33 If a request for a particular mode of access would destroy that wilderness character, therefore, you must deny the request. These acts also provide, how­ ever, that their mandates are subject to “existing private rights.” 34 See, e.g., Montana Wilderness Study Act, § 3(a), 16 U.S.C. § 1132 note. You must determine, therefore, what implied access rights are guaranteed in a particular grant, and allow the exercise of those rights. The wilder­ 32 T h e im p a c t o f th e W ild e rn e ss A c t is d iscu ssed in P a rt IV . 33 S ee P arker v. U ntied States. 448 F .2 d 793 (1 0 th C ir. 1971), cert, d en ied sub. nom ., K a ib a b In d u stries v. Parker, 405 U .S. 989 (1972) (h e ld S e c r e ta r y ’s d is c re tio n to e n te r in to th e tim b e r h a rv e s tin g c o n tr a c t fo r p u b lic land is lim ited by 16 U .S .C . § 1132(b)). 34 In a d d itio n to “ ex istin g p r iv a te rights,*' th e W ild e rn e ss A c t p e rm its in g re ss to a n d e g re s s fro m m in in g lo c a tio n s until D e c e m b e r 31, 1983. 16 U .S .C . § 1133(d)(3). S u c h in g re ss an d eg re s s is s u b je c t to re a so n a b le re g u la tio n b y th e S e c re ta ry o f A g ric u ltu re , c o n s is te n t w ith use o f th e lan d fo r m in eral e x p lo ra tio n , lo c a tio n , d e v e lo p m e n t, p ro d u c tio n , a n d re la te d p u rp o ses. 46 ness study acts thus do not modify any implied rights that may accom­ pany federal grants. Nor do I find that the other statutes you cite modify such implied rights. The Organic Act of 1897, 16 U.S.C. §478, discussed at length in Part I of this opinion, preserves access rights existing at the time of creation of a forest reserve. The Act of October 13, 1964, 16 U.S.C. 532-538, which authorizes the Secretary of Agriculture to grant ease­ ments for road rights-of-way over lands administered by the Forest Service,35 was passed in reaction to Attorney General Kennedy’s 1962 interpretation of 16 U.S.C. §478, which, as discussed earlier, allowed the imposition of a reciprocity requirement with respect to rights-ofway. By empowering the Secretary of Agriculture to grant permanent easements, the Congress hoped to provide an alternative to statutory assurance of access to and from private inholdings.36 Thus, the statute does not substantively modify implied rights of access. It does, along with FLPMA, allow the imposition of certain procedural requirements, such as application for a permit prior to road construction. We have found no other statute that substantively modifies implied access rights. IV. Your final question concerns § 5(a) of the Wilderness Act, 16 U.S.C. 1134(a). Your department has concluded that this provision guarantees a private owner “adequate access” to an inholding unless the land­ owner voluntarily chooses a land exchange. Pursuant to this interpreta­ tion, regulations have been promulgated providing that access “shall be given.” 37 The Department of the Interior has taken the position that § 5(a) grants the Secretary of the Interior (and, by analogy, the Secre­ tary of Agriculture) the authority to deny access to a landowner, and 3516 U .S .C . § 533. S ee p. 10 & n o te 13 supra. T h is s ta tu te w as n ot re p e a le d b y F L P M A . W ith resp ect to th e S e c re ta ry o f A g ric u ltu r e ’s a u th o rity u n d e r §§ 5 3 2-538, F L P M A p ro v id e d : [N ]o th in g in th is s u b c h a p te r shall b e c o n s tru e d as affe c tin g o r m o d ify in g th e p ro v isio n s o f sectio n s 532 to 538 o f title 16 an d in th e e v e n t o f c o n flic t w ith , o r in c o n sisten cy b e tw e e n , th is s u b c h a p te r a n d sectio n s 532 to 538 o f title 16, th e la tte r shall p rev ail: Provided fu rth e r. T h a t n o th in g in th is A c t sh o u ld be c o n s tru e d as m a k in g it m a n d a to ry , th a t, w ith resp ect to fo rest ro ad s, th e S e c re ta ry o f A g ric u ltu re lim it rig h ts-o f-w a y g ra n ts o r th e ir te rm s o f y ea rs o r re q u ire d is c lo su re p u rs u a n t to se c tio n 1761(b) o f this title o r im p o se an y o th e r c o n d itio n c o n te m p la te d by this A c t th a t is c o n tr a r y to p re se n t p ra c tic e s o f th a t S e c re ta ry u n d e r s e c tio n s 532 to 538 o f title 16. 43 U .S .C . § 1770(a). 36 S. R ep. N o . 1174, 88th C o n g ., 2d Sess. 4 (1964). See n o te 10 supra. 3736 C .F .R . § 293.12. T h is re g u la tio n p ro v id e s in p art: S ta te s o r p erso n s, a n d th e ir s u c c e sso rs in in te re st, w h o o w n la n d c o m p le te ly s u r ­ ro u n d e d by N atio n al F o re s t W ild ern ess shall be g iv e n su c h rig h ts as m ay b e n e c e ssa ry to a ssu re a d e q u a te a c cess to th e land. “ A d e q u a te a c c e s s ” is d e fin e d as th e c o m b in a tio n o f ro u te s a n d m o d e s o f tra v e l w h ic h w ill, as d e te rm in e d by th e F o re s t S e rv ic e , ca u se th e least la stin g im p a c t o n th e p rim itiv e c h a ra c te r o f th e land a n d at th e sam e tim e w ill s e rv e th e re a so n a b le p u rp o s e s fo r w h ic h th e S ta te a n d p riv a te la n d is h e ld o r used. T h is re g u la tio n is c o n s is te n t w ith y o u r d e p a rtm e n t’s in te rp re ta tio n o f 16 U .S .C . § 4 7 8 . S e e 36 C .F .R . § 212.8(b). 47 offer land exchange as indemnity.38 The Interior Department’s interpre­ tation, contrary to yours, under appropriate circumstances would allow denial of “adequate access” to private holdings as well as to stateowned inholdings. Some initial observations about the Wilderness Act are in order. The purpose of the Wilderness Act is to “secure for the American people of present and future generations the benefits of an enduring resource of wilderness.” 16 U.S.C. § 1131(a). “Wilderness” is defined as an area of “undeveloped Federal land retaining its primeval character and influ­ ence, without permanent improvements or human habitation.” 16 U.S.C. § 1131(c). Section 4(c) of the Act prohibits, with limited excep­ tions, use of motor vehicles or other mechanical transportation. 16 U.S.C. § 1133(c). It also prohibits permanent roads within any wilder­ ness area, except as specifically provided in the Act, and subject to “existing private rights.” Id. The Act directs you to administer wilder­ ness areas within your jurisdiction so as to preserve their wilderness character. 16 U.S.C. § 1133(b). The phrase “existing private rights” in § 4(c), 16 U.S.C. § 1133(c), is not defined in the Act or in its legislative history, but, in my opinion, includes existing easements, which are wellrecognized rights in property.39 Thus, in spite of the A ct’s general prohibitions, if a private inholder has an implied right to a particular type of access, that right is preserved. The Wilderness Act was developed over a 15-year period, with almost unprecedented citizen participation. See S. Rep. No. 109, 88th Cong., 1st Sess. 7 (1963). The first major wilderness bill was introduced in the 85th Congress. S. 1176, 85th Cong., 1st Sess. (1957). In 1961, the Senate passed a wilderness bill, S. 174, but the House failed to pass it. 38 S u p p le m e n ta l M e m o ra n d u m In S u p p o rt o f P la in tifT s M o tio n fo r P e rm a n e n t In ju n c tio n , at 14-19, U n ited S ta tes v. C otter Corp., N o. C 7 9 -0 3 0 7 (D . U ta h O c t. 1, 1979). T h e c u r r e n t reg u la tio n o f th e In te r io r D e p a r tm e n t’s F ish a n d W ild life S e rv ic e , 50 C .F .R . 35.13, a lth o u g h s o m e w h a t am b ig u o u s, re s tric ts a c cess to m eans an d ro u te s w h ic h w ill “ p re s e rv e th e w ild e rn e s s c h a ra c te r o f th e a re a .” T h e re g u la tio n p ro v id e s: R ig h ts o f S ta te s o r p e rs o n s an d th e ir su c c e s s o rs in in te re st, w h o se lan d is su rro u n d e d by a w ild e rn e s s u n it, w ill be re c o g n iz e d to a ssu re a d e q u a te a c cess to th a t land. A d e q u a te a c c e s s is d e fin e d as th e c o m b in a tio n o f m o d e s a n d ro u te s o f tra v e l w h ic h w ill best p r e s e r v e th e w ild e rn e s s c h a ra c te r o f th e la n d sc a p e . M o d es o f tra v e l d e s ig ­ n ated shall be re a so n a b le a n d c o n s is te n t w ith a c c e p te d , c o n v e n tio n a l, c o n te m p o ra ry m o d e s o f tra v e l in said v ic in ity . U se w ill b e c o n s is te n t w ith re a so n a b le p u rp o se s fo r w h ic h s u c h la n d is h eld . T h e D ir e c to r w ill issue s u c h p e rm its as a re n e c e ssa ry fo r ac cess, d e sig n a tin g th e m e an s an d ro u te s o f tra v e l fo r in g re ss an d d e g re s s (sic) so as to p re s e rv e th e w ild e rn e s s c h a ra c te r o f th e a rea . 395ee, e.g.. U nited S ta te s v. Welch, 217 U .S . 333, 339 (1910); M yers v. U n ited States, 378 F .2 d 696, 703 (C t. C l. 1967). It lo g ic a lly c o u ld b e a rg u e d th a t th e p h ra s e “ ex istin g p riv a te r ig h ts '' in c lu d e s an d p re s e rv e s o n ly th o s e rig h ts w h ic h h a d b ee n e x e rc ise d at th e tim e th e W ild e rn e ss A c t w as p assed . L ittle s u p p o rt exists, h o w e v e r, for th is a rg u m e n t th a t C o n g re s s in te n d e d to ex tin g u ish u n ex e rc ised ac cess rig h ts, le a v in g th e la n d o w n e r w ith o n ly th e rig h t to a c cess o r e x c h a n g e u n d e r § 5(a). W h e n p ro v id in g fo r p r e s e rv a tio n o n ly o f e s ta b lis h e d uses, C o n g re s s c le a rly so in d ic a te d . S ee 16 U .S .C . § 1133(d)(1) (p e rm ittin g esta b lish e d uses o f a irc ra ft a n d m o to rb o a ts ). In S. R ep . N o . 109, 88 th C o n g ., 1st Sess. 2 (1963), th e c o m m itte e s ta te d th a t u n d e r th e W ild e rn e s s P re s e rv a tio n S y stem , “ e x istin g p r iv a te rig h ts a n d esta b lish ed u ses" a re p e rm itte d to c o n tin u e . (E m p h a s is a d d e d .) A w a y o f a c c e s s to w h ic h a p erso n is e n title d b y ex p ress o r im p lie d g ra n t p re d a tin g th e W ild ern ess A c t is a rig h t w h ic h ex isted p r io r to th e e ffe c tiv e d a te o f th e A c t, w h e th e r e x e rc is e d o r u n ex e rc ised . 48 In 1963, S. 4 was introduced in the 86th Congress. It was identical to S. 174, with one exception not relevant here. It passed the Senate by a large margin (110 Cong. Rec. 17,458 (1964)), but was amended in the House (110 Cong. Rec. 17,461 (1964)). A conference committee was convened and adopted with few amendments the House version of the bill, H.R. 9070. See H.R. Rep. No. 1829, 88th Cong., 2d Sess. (1964). The conference bill was approved by both Houses (110 Cong. Rec. 20,603, 20,632 (1964)) and signed by the President on September 3, 1964. Section 5(a) of the Act deals with state and private property com­ pletely surrounded by wilderness areas. It provides: In any case where State-owned or privately owned land is completely surrounded by national forest lands within areas designated by this chapter as wilderness, such State or private owner shall be given such rights as may be necessary to assure adequate access to such State-owned or privately owned land by such State or private owner and their successors in interest, or the State-owned land or privately owned land shall be exchanged for federally owned land in the same State of approximately equal value under authorities available to the Secretary of Agri­ culture: Provided, however, that the United States shall not transfer to a State or private owner any mineral interests unless the State or private owner relinquishes or causes to be relinquished to the United States the mineral interest in the surrounded land. Since the enactment of the Wilderness Act, your department has inter­ preted this language to preserve the statutory right of access you found in 16 U.S.C. § 478.40 Because, in my opinion, §478 does not grant a right of access to inholders other than actual settlers, the question presented here is whether § 5(a) grants to inholders a broad right of “adequate access” beyond any existing private rights. I believe it does not. The term “adequate access” is not defined in the Act, but the legisla­ tive history makes clear that the term includes access not consistent with wilderness uses.41 For example, in both the Senate and House 40S ee n o te 37 supra. 41 O th e r sectio n s a p p ly to uses c o n s is te n t w ith w ild e rn e ss p re s e rv a tio n . In § 5(b), 16 U .S .C . § 1134(b), C o n g re s s p ro v id e d th a t w h e re v alid m in in g claim s o r o th e r v a lid o c c u p a n c ie s a r e s u r­ ro u n d e d b y a n atio n al fo rest w ild e rn e ss a rea , th e S e c re ta ry o f A g ric u ltu r e sh all, b y re aso n ab le re g u la tio n s co n siste n t w ith th e p re s e rv a tio n o f th e a re a as w ild e rn ess, p e rm it in g re ss to a n d eg ress fro m su ch s u rro u n d e d a re a s by m eans w h ic h h a v e been o r a re b e in g c u s to m a rily e n jo y e d w ith re s p e c t to sim ilarly s itu a te d area s. Cf. 16 U .S .C . § 1133(d) (p ro v id e s fo r re g u la tio n o f in g re ss a n d e g ress co n siste n t w ith use o f land fo r m in eral e x p lo ra tio n a n d d e v e lo p m e n t). S e c tio n 5(b) d id n o t a p p e a r in e ith e r S. 174 o r S. 4. It d id a p p e a r in se v e ra l e a rly H o u se v ersio n s o f th e bill, a n d th e se v ersio n s ex p ressly in c lu d e d “ p riv a te ly o w n e d la n d s" in a d d itio n to v alid m in in g claim s a n d o th e r valid C ontinued 49 debates, repeated references were made to road construction for motor­ ized vehicles. See, e.g., 107 Cong. Rec. 18,105 (1961); 109 Cong. Rec. 5,925-26 (1963). Accordingly, your regulation defining “adequate access” does not limit access to established uses or to means consistent with wilderness uses. It includes access which “will serve the reason­ able purposes for which the state and private land is held or used.” 42 What constitutes adequate access will depend on the facts and circum­ stances o f each case, and is a determination left to your discretion. The Act requires that the state or private inholder be given such rights as are necessary to assure adequate access, or that the land be exchanged for federally owned land of approximately equal value. The language of § 5(a) indicates that a landowner has a right to access or exchange. If he is offered either,, he has been accorded all the rights granted by the statute. If you offer land exchange, the landowner has no right of access under § 5(a). This interpretation is supported by the legislative history of the section.43 The language of § 5(a) first appeared in an amendment to S. 174, 87th Cong., 1st Sess. (1961). Senator Bennett of Utah proposed the amend­ ment in response to concerns of the Western Association of State Land Commissioners, and, accordingly, the amendment pertained only to state-owned land. 107 Cong. Rec. 18,092 (1961).44 The Senator identi­ fied a series of “loopholes” in the bill. He described the 13th loophole as follows: “No provision is made in S. 174 to preserve the right of o c c u p a n c ie s. T h is re fe re n c e to p riv a le ly o w n e d lan d s w as d e le te d in la te r v e rs io n s o f th e b ill, su c h as H .R . 9070. T h e re p o ris d o n o t e x p lain this d e le tio n . It m ay h a v e o c c u rr e d b e c a u se o f th e d ecisio n d u rin g th e sam e session to in c lu d e p riv a te ly o w n e d land in § 5(a). T h e final p a ra g ra p h o f § 5 , 16 U .S .C . § 1134(c), a u th o riz e s y o u to a c q u ire s ta te o r p riv a te ly o w n e d land o n ly if e ith e r th e o w n e r c o n c u rs o r C o n g re s s s p ecifically a u th o riz e s th e a c q u isitio n . 42 S e e 36 C .F .R . § 293.12, n o te 27 supra. 43 Y o u r d e p a rtm e n t relies o n th e le g isla tiv e h is to ry o f su b se q u en t le g islatio n to s u p p o rt its c o n te n ­ tio n th a t § 5(a) g ra n ts a rig h t to a d e q u a te ac c e ss to in h o ld e rs. In a re p o rt filed in c o n ju n c tio n w ith th e In d ia n P eak s W ild ern ess A re a , et a l, 16 U .S .C . § 1132 n o te , th e H o u se C o m m itte e n o te d th a t § 5 o f th e W ild e rn e s s A c t re q u ire s th e S e c re ta ry to g iv e p riv a te la n d o w n e rs a d e q u a te ac cess. H .R . R ep . N o . 1460, 9 5 th C o n g ., 2d Sess. 9 -1 0 (1978). T h e re p o rt d o e s n o t d iscu ss th e e x c h a n g e o p tio n . T h is le g is la tiv e o b s e rv a tio n is n o t a p a rt o f th e le g isla tiv e h is to ry o f th e W ild e rn e ss A c t. It is th e in te n t o f th e C o n g re s s th a t e n a c te d a la w th a t c o n tr o ls in te rp re ta tio n o f th a t law . U n ited A irlines, Inc. v. M cM a n n . 434 U .S. 192, 200 n.7 (1977); T eam sters v. U nited S ta tes, 431 U .S . 324, 354 n.39 (1977). W h a te v e r e v id e n c e is p ro v id e d b y th e re p o rt on th e su b se q u en t le g islatio n is o v e r c o m e b y c o n flic tin g ev id e n c e . See Southeastern C o m m u n ity C ollege v. Davis, 442 U .S . 397, 4 1 1 -1 2 (1979); Oscar M a yer & Co. v. Evans, 441 U .S. 750, 758 (1979). 44 T h e re so lu tio n passed b y th e W e ste rn S ta te L a n d C o m m issio n e rs s u g g e s te d th a t th e bill be a m e n d e d to c o n ta in th e fo llo w in g p ro v isio n : W h e n e v e r an a re a in c lu d in g S ta te -o w n e d land is in c o rp o ra te d in th e w ild e rn e s s sy stem , p ro v is io n shall b e m a d e fo r a c cess to su ch land a d e q u a te fo r th e re a so n a b le ex e rc ise o f its rig h ts th e re in b y th e S ta te a n d th o s e claim in g u n d e r it . . . . P r o v id e d , h o w e v e r, th a t, if th e re c o m m e n d a tio n b y w h ic h an a re a in c lu d in g S ta te -o w n e d la n d is in c o r p o ­ ra te d in th e w ild e rn e s s sy stem shall fail to p ro v id e fo r a c c e s s to th e S ta te -o w n e d land th e re in , th e n th e o w n in g S ta te m ay, at its e le c tio n , use th e in c lu d e d S ta te lan d as b ase in m a k in g in d e m n ity se le c tio n o f la n d s, in c lu d in g th e m in eral rig h ts th e re in as p ro v id e d in a p p lic a b le U .S. s ta tu te s. 107 C o n g . R e c . 18,103 (1961). T h e re s o lu tio n illu stra te s th a t th e C o m m issio n ers also b e lie v e d ac cess c o u ld b e d e n ie d . T h e in d e m n ity s ta tu te s to w h ic h th e re so lu tio n refers, 43 U .S .C . 851, 852, a llo w states to m a k e in d e m n ity s e le c tio n s w h e n e v e r sc h o o l s e c tio n s a re lost b e c a u se o f o th e r re s e rv a tio n s o r g ra n ts o f th e land. 50 access to State school sections or other lands. This should certainly be done or alternatively, the States should be permitted to choose Federal lands in another location in lieu of the land isolated within wilderness areas.” Id. The choice referred to by Senator Bennett was the choice of lands if access were denied, not the choice of either access or exchange. He stated that the purpose of his amendment was to “give the States access to State lands within wilderness areas established under the bill, or indemnify the States for loss of such access.” 107 Cong. Rec. 18,103 (1961). He did not indicate that a state could choose between access and indemnity. His amendment provided in part: In any case where State-owned land is completely sur­ rounded by lands incorporated into the wilderness system such State shall be given (1) such rights as may be neces­ sary to assure adequate access to such State-owned land by such State and its successors in interest, or (2) land in the same State, not exceeding the value of the surrounded land, in exchange for the surrounded land. Exchanges of land under the provisions of this subsection shall be ac­ complished in the manner provided for the exchange of lands in national forests. 107 Cong. Rec. 18,103 (1961). In urging support of his amendment, Senator Bennett explained:45 [T]he Western Association of State Land Commissioners unanimously adopted a resolution calling for indemnifica­ tion to the States which will lose access to State lands in wilderness areas established under S. 174. Where State school sections or other State lands are isolated by wilder­ ness areas, the State should be given an opportunity, if access is denied, to make in lieu selections of Federal lands in other areas. Id. (emphasis added).46 These statements demonstrate that Senator Bennett believed that access not consistent with wilderness preservation could be denied, and wanted to give states an alternative in such circumstances. The Senator later explained that his amendment was designed to correct problems states had experienced with land exchanges in the past. 107 Cong. Rec. 18,105 (1961). He wanted to ensure that if the state land was “locked up,” the state clearly would be entitled to an exchange. He further explained: 45 A u th o rity to e x c h a n g e land is p ro v id e d by 16 U .S .C . § § 4 8 5 , 486 (o rig in a lly e n a c te d as A c t o f M ar. 20, 1922, c h . 105, 42 S tat. 465) an d 16 U .S .C . § 516 (o rig in a lly e n a c te d as A c t o f M ar. 3, 1925, ch . 473, 43 S tat. 1215). 46 H is b e lie f th a t a c cess to sta te -o w n e d lan d s m a y be d e n ie d e n tire ly m a y resu lt in p a rt fro m th e la n g u a g e o f § 4 (c ) , 16 U .S .C . § 1133(c), w h ic h s p ecifically p ro te c te d o n ly ex istin g priva te rig h ts. H e m a d e n o s ta te m e n ts re ly in g on th is la n g u ag e, h o w e v e r. 51 The first choice, providing that the State shall have adequate access, would in fact defeat the value o f the wilderness bill, assuming there were a very valuable mineral in a State school section, and the State were to decide that it was worth money to drive a road through the wilderness to get to it. This would change the situation with respect to existing law, because we would be imposing particular restrictions, in spirit at least, with respect to access to the land. Id. (emphasis added). Because of misunderstandings regarding the effect of the proposed amendment on mineral lands, Senator Bennett withdrew the amend­ ment to allow time to confer with other Senators from western states. He re-offered the amendment the following day, with minor changes not relevant here. 107 Cong. Rec. 18,384 (1961). Senator Church, who earlier had expressed reservations about the amendment, now voiced his support. In his brief remarks, he stated: I think the amendment is fair to the States involved. If they need rights of access, they should have them; if they want to relinquish the land, they ought to have the right to acquire other land of comparable value. Id. Although we can infer from these remarks an understanding that the section gives states the option of choosing access or exchange, the statement does admit of other interpretations. In light of the evidence to the contrary, the resolution of this question cannot be rested on the remarks of one senator during debate on the Senate floor, where “the choice of words . . . is not always accurate or exact.” In re Carlson, 292 F. Supp. 778, 783 (C.D. Cal. 1968), citing United States v. Internat'l Union UAW-CIO, 352 U.S. 567, 585-86 (1957). If the Congress had intended to grant landowners a right to adequate access, it could have done so expressly. Resolving the doubt in favor of the grantee of such a right would violate the well-established rule that any doubts as to congressional grants of property interests must be resolved in favor of the government. Andrus v. Charleston Stone Prod. Co., 436 U.S. 604, 617 (1978); United States v. Union Pac. R.R., 353 U.S. 112, 116 (1957). The Senate agreed to Senator Bennett’s amendment to S. 174, but S. 174 did not pass the House during the 87th Congress. A House version of the bill did include a similar provision, also applicable only to state-owned land. The House report on this bill indicated that the section required only that a state be given either access or exchange; it did not indicate that the state could choose between them, or that adequate access otherwise was guaranteed. It stated: If surrounded land is owned by a State, the State would be given either right of access or opportunity of exchange. 52 . . . Ingress and egress would be provided for all valid occupancies. H.R. Rep. No. 2521, 87th Cong., 2d Sess. 108 (1962) (emphasis added). Variations of Senator Bennett’s amendment appeared in both the Senate and House versions of the wilderness legislation in the 88th Congress. S. 4, 88th Cong., 1st Sess. § 3(j) (1963); H.R. 9070, 88th Cong., 2d Sess. § 6(a) (1964). The Senate committee report on S. 4 indicates that the understanding that states could be denied access and offered a land exchange as indemnity remained unchanged: Section 3(j) provides that where State inholdings exist in wilderness areas, the State shall be afforded access, or shall be given Federal lands in exchange of equal value. The amendment is an attempt to clarify the intention of the Senate in regard to section 3(j), which was originally proposed, withdrawn, revised, again proposed and adopted during floor consideration of S. 174 in 1962 [sic]. The amended section represents a more deliberate and careful drafting and consideration. S. Rep. No. 109, 88th Cong., 1st Sess. 10, 21 (1963). The House modified this section to include “privately owned land” in the first paragraph regarding “adequate access,” rather than in the second paragraph regarding “ingress and egress.” This modification is not explained in the House report. See H.R. Rep. No. 1538, 88th Cong., 2d Sess. 13 (1963). The change was discussed in both the Senate and House hearings, however. The sentiment expressed was that private owners should have the same rights as the States. National Wilderness Preservation Act: Hearings on H.R. 9070, H.R. 9162, S. 4 and Related Bills, Before the Subcomm. on Public Lands o f the House Comm, on Interior and Insular Affairs, 88th Cong., 2d Sess. 1369-72 (1963). Both public witnesses and congressmen stated that ingress and egress was uncertain under both 16 U.S.C. §478 and the wilderness acts, and that the same provision for exchange should be made for private owners as was made for States. Id. There is no indication that this addition of privately owned lands modified the purpose of the section as identified by Senator Bennett. In sum, if uses are well-established prior to wilderness designation, they may be permitted to continue.47 In addition, all existing private 47 S ectio n 4(d)(1) o f th e A c t, 16 U .S .C . § 1133(d)(1), p ro v id e s th a t th e “ use o f a irc ra ft o r m o to r ­ b o ats, w h e re th e se uses h av e a lre a d y b e c o m e esta b lish e d , m ay be p e rm itte d to c o n tin u e su b je c t to su ch re stric tio n s as th e S e c re ta ry o f A g ric u ltu re d ee m s d e s ira b le .” T h e c o m m itte e re p o rts rev ea l an in ten t th a t o th e r w ell-estab lish ed uses also be p e rm itte d to c o n tin u e . See. e.g.. S. R ep . N o . 109, 88 th C o n g ., 1st Sess. 2, 10 (1963). See also 109 C o n g . R ec. 5926 (1963) ( S e n a to r C h u r c h , a sp o n so r o f th e bill, ex p ressed th e v ie w th a t o w n e rs o f ra n c h e s be a llo w e d to c o n tin u e “ th e c u s to m a ry u sag e o f th e ir p r o p e rty fo r in g re ss an d e g ress a c c o r d in g to th e c u s to m a ry w a y s ” ). 53 rights of access are preserved. Even if the landowner has no prior existing right to access not consistent with wilderness uses, the Wilder­ ness Act requires that “adequate access” be given or that an offer be made to the landowner to exchange the land for federal land of ap­ proximately equal value. As a result of § 5(a), therefore, the inholder actually may possess more access “rights” than were possessed prior to wilderness designation. If the landowner rejects an offer of land ex­ change, he may retain title to the inholding and exercise access rights consistent with wilderness uses, or he may consent to acquisition of his land by the federal government. These responses to the questions you have asked should provide satisfactory guidance in your performance of your federal land manage­ ment responsibilities. Sincerely, B e n ja m in 54 R. C iv ile tti

Write a legal research memo on the following topic.

Rights-of-Way Across National Forests T h e A ct o f June 4, 1897, does not grant a right o f access to ow ners o f land surrounded by national forests, other than actual settlers, and the Secretary o f A griculture has discretionary authority to deny such access unless a right otherw ise exists. T h e com m on law doctrine o f easem ent by necessity does not apply to land ow ned by the federal governm ent, but a right o f access may be implied from the term s of a federal land grant in some circum stances. N o statutes currently modify any such implied right found to exist. Absent a prior existing access right, the Secretary o f A griculture may deny “adequate access” to land within a national forest w ilderness area, but must offer a land exchange as indemnity. June 23, 1980 T he Secretary of A g r ic u l t u r e This replies to your letter of September 18, 1979, requesting my opinion on several questions concerning access rights of private owners of land located within the boundaries of the national forests. Your letter poses the following questions: (1) Whether the Organic Act of June 4, 1897,1 grants to private landowners,2 other than actual settlers, a right of ingress to and egress from their properties located within the exterior boundaries of the national forests, or whether you may deny such access; (2) W hether private landowners with property located within the exterior boundaries of the national forests have a right-of-way across national forest lands by implied easement or easement by necessity enforceable against the federal government; and, if so, whether this right-of-way is limited to those instances in which the United States by its conveyance created a situation in which nonfederal lands are sur­ rounded by public lands; (3) Whether, if a right-of-way exists across national forests, it has been modified by: M y D e a r M r. S e c r e ta r y : (a) The Organic Act of June 4, 1897, 16 U.S.C. § 478; (b) The Wilderness Act, § 5(a), 16 U.S.C. § 1134(a); (c) The Act of October 13, 1964, 16 U.S.C. §§ 532-538; 1A c t o f J u n e 4. 1897, c h . 2. § 1. 30 S tat. 36 (c o d ifie d at 16 U .S .C . § 478). - A s used in th is o p in io n , th e te rm “ p riv a te la n d o w n e rs " re fe rs to all n o n fe d e ra l la n d o w n e rs unless o th e r w is e in d icated . 30 (d) The Montana Wilderness Study Act of 1977, § 3, 16 U.S.C. § 1132 note; or (e) Any other statute; and (4) Whether § 5(a) of the Wilderness Act, 16 U.S.C. § 1134(a), au­ thorizes you to deny access and offer as indemnity an exchange of national forest land for private land, or whether the private landowner may insist on a right of access. I conclude, first, that the Organic Act of June 4, 1897, does not grant a right of access to owners of land surrounded by national forests, other than actual settlers, and that you have discretionary authority to deny such access, provided that a right of access does not otherwise exist. Of course, access cannot be denied arbitrarily. Second, in my opinion, the common law doctrine of easement by necessity does not apply to land owned by the federal government. A right of access may be implied from the terms of a federal land grant only if Congress intended to grant the right. This intent may be show from the circumstances surrounding the grant, including the purpose for which it was made. Third, none of the statutes you have asked us to consider, nor any others that we have found, would modify such a right in any case in which it is found to exist. Fourth, I conclude that, absent a prior existing access right, you may deny “adequate access” under the Wilderness Act, but you must offer a land exchange as indemnity. I. Your first question is whether Congress has given private inholders 3 a statutory right of ingress and egress with respect to their property, including a right to build roads. Congress clearly has the power to grant such statutory rights.4 The question is whether it has done so. Your department concludes that the Organic Act of June 4, 1897, grants a right of access, including a right to build roads, to all owners 3 A n “ in h o ld e r" is a la n d o w n e r w h o se p ro p e rty is c o m p le te ly s u rro u n d e d b y p r o p e r ty o w n e d b y th e U n ited S tates. A g ain , as used in th is o p in io n th e te rm “ p riv a te inholder*’ re fe rs to all n o n fe d e ra l in h o ld ers. 4 T h e p o w e r to c o n tro l p u b lic lan d s is g ra n te d to C o n g re s s by th e C o n stitu tio n : T h e C o n g re s s shall h a v e P o w e r to D isp o se o f an d m ake all n ee d fu l R u les an d R e g u la tio n s re s p e c tin g th e T e r r ito r y o r o th e r p ro p e rty b e lo n g in g to th e U n ite d S ta l e s .. . . U .S. C o n st.. A rt. IV , § 3, cl. 2. T h is c o m p re h e n s iv e co n g re s s io n a l a u th o rity o v e r p u b lic lan d s in c lu d e s th e p o w e r to p re s c rib e th e tim es, c o n d itio n s , an d m o d e o f tra n sfe r (U n ite d S ta tes v. G ratiot. 39 U .S . (14 P et.) 526, 537-38 (1840)); to d e c la re th e e ffec t o f title e m a n a tin g fro m th e U n ite d S ta te s ( B a g n ell v. Broderick, 38 U .S. (13 P e t.) 436, 4 5 0 (1839)); a n d to p re v e n t u n la w fu l o c c u p a tio n o f p u b lic p r o p e r ly (C a m fie ld v. U nited Stoles. 167 U .S. 518, 525 (1897)). In K leppe v. N e w M exico. 426 U .S. 529, 539 (1976), th e C o u rt sta te d : “ (W jh ile th e fu rth e st re a c h e s o f p o w e r g ra n te d b y th e P r o p e r ty C la u se h a v e n o t yet been d efin ite ly re so lv e d , w e h a v e re p e a te d ly o b s e rv e d th a t th e p o w e r o v e r p u b lic la n d s th u s e n tru ste d to C o n g re s s is w ith o u t lim ita tio n ." 31 of land surrounded by national forest reserves. Section 478, the codifi­ cation of § 1 of the Act, provides: Nothing in sections 473 to 478, 479 to 482 and 551 of this title shall be construed as prohibiting the egress or ingress of actual settlers residing within the boundaries of na­ tional forests, or from crossing the same to and from their property or homes; and such wagon roads and other im­ provements may be constructed thereon as may be neces­ sary to reach their homes and to utilize their property under such rules and regulations as may be prescribed by the Secretary of Agriculture. Nor shall anything in such sections prohibit any person from entering upon such na­ tional forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof. Such persons must comply with the rules and regulations covering such national forests. In 1962, Attorney General Kennedy was asked by the Secretary of Agriculture for his opinion on the meaning of this statute. See 42 Op. A tt’y Gen. 127 (1962). Prior to 1962, your department interpreted the first sentence of § 478 as granting a right of access to all owners of land surrounded by a national forest. It reasoned that the term “ingress and egress” included the construction of wagon roads, and that the term “actual settlers” included any person or corporation owning property within the boundaries of national forests. As a result, private landown­ ers, including lumber corporations, were considered to have a statutory right to build logging roads. Id. at 130. Attorney General Kennedy opined that the term “actual settlers” includes original settlers who reside on the land, and excludes corporations and other business enti­ ties.5 He further concluded that the Secretary of Agriculture has discre­ tionary authority to impose a reciprocity requirement on requests by inholders, other than actual settlers, to use existing roads or to build new roads within national forests. Id. at 142-45. You have advised us that, notwithstanding the 1962 opinion, your department has continued to maintain that § 478 creates a right of access for all private inholders. This interpretation, you have informed us, has been based upon the second sentence of § 478, which was not directly addressed in the 1962 opinion. My review of the reasoning set forth in that earlier opinion, as well as my analysis of § 478 and its legislative history, convinces me that no such access right exists. The 1962 opinion analyzed § 478 by dividing it into the following three categories: (1) ingress and egress of actual settlers; (2) construc­ 5 B etw e en th e e x tre m e s o f th e o rig in a l s e ttle r a n d c o r p o ra tio n s o r b usiness e n titie s a re in te rm e d ia ry ty p e s o f p ro p e rty o w n e rs su c h as h e irs o r assigns o f an a c tu a l s e ttle r. T h e 1962 o p in io n d id n o t c o n s id e r w h e th e r th o se in te rm e d ia ry p ro p e r ty o w n e rs a re “ a c tu a l s e ttle rs ” w ith in th e m e an in g o f th e A c t. 42 O p . A tt’y G en . 127, 138 (1962). 32 tion of wagon roads and other improvements by actual settlers; and (3) entry upon the national forest for all proper and lawful purposes by any person. Id. at 127, 138-39. We are concerned here only with the third category because you inquire as to the rights of landowners other than actual settlers. In this category, “entry upon” may be subdivided into entry by mere ingress and egress, in particular the use of existing roads, and entry requiring construction of roads. Section 478 provides that any entry upon the forest reserve by any person is subject to the rules and regulations covering such national forests. The question now pre­ sented, therefore, is whether the Secretary’s regulations may, in appro­ priate cases, include denial of the requested entry. To determine correctly the scope of rights protected by the 1897 Act, it is necessary to study carefully the language of the Act itself, and its legislative history. As the legislative history is fully summarized in the 1962 opinion, I note only the aspects particularly relevant here. At the outset, it is helpful to review the sequence of events which led to the passage of the Act. During the 1800’s the public entered freely upon federal land, and Congress, although it did not provide specific legal authority for most uses of the public domain, made no serious attempt to halt such uses. See generally G. Robinson, The Forest Serv­ ice 2-5 (1978); Clawson & Held, The Federal Lands 46 (1957). This tacit approval constituted an open invitation to the public to avail itself of the federal land without specific authorization. Most people assumed that the United States was a temporary titleholder and that the land would eventually pass into private ownership. See R. Robbins, Our Landed Heritage: The Public Domain, 1776-1970, 5-6 (1976). The public land laws of the era, including preemption laws,6 homestead laws,7 and mining laws,8 presumed unimpeded access to the public domain. This policy of unimpeded access was recognized by the Supreme Court in Buford v. Houtz, 133 U.S. 320, 326 (1890), a case in which the Court considered the complaints of owners of alternate odd-numbered sections of land that sheepowners were damaging their land by driving 6T h e A c t o f M ay 29, 1830, 4 S tal. 4 2 0 -2 1 , first g ra n te d p re e m p tio n rig h ts to settlers. U n d e r its term s, an y p erso n w h o h ad se ttle d on th e p u b lic d o m a in an d h ad c u ltiv a te d a tra c t o f land w as a u th o riz e d to p u rc h a s e an y n u m b e r o f a c re s up to a m axim um o f 160 a c re s u p o n p ay in g to th e U n ite d S ta te s a m inim um p ric e fo r Che land. 7 T h e first h o m e stead a c t w as passed in 1862. A c t o f M ay 20, 1862, 12 S ta t. 3 9 2 -9 3 . It p ro v id e d th a t c e rta in p erso n s c o u ld e n te r u n a p p ro p ria te d p u b lic lan d s an d , u p o n satisfy in g c e rta in c o n d itio n s, o b ta in a G o v e rn m e n t p a te n t th e re fo r. 8T h e M in in g L a w o f 1866 (A c t o f J u ly 26, 1866, c h . 262, 14 S tat. 251) o p e n e d m in eral d e p o sits o n p u b lic lands to e x p lo ra tio n , claim , and o c c u p a tio n . T h e o n ly sp ecific re fe re n c e to rig h ts-o f-w ay ap p e a re d in § 8, w h ic h g ra n te d a rig h t-o f-w a y fo r th e c o n s tru c tio n o f h ig h w a y s o v e r p u b lic lan d s n ot re se rv e d fo r public uses. T h e M in eral L o c a tio n L a w o f 1872 (A c t o f M ay 10, 1872, c h . 752, 17 S tat. 9 1 -9 6 ) d id not m e n tio n ac cess ac ro ss th e p u b lic d o m a in . F ro m th e o u tse t, h o w e v e r, fed era l m in in g la w s h av e b een c o n s tru e d as an in v itatio n to e n te r, d is c o v e r, an d lo c a te claim s u p o n p u b lic lands n ot w ith d ra w n o r reserv ed . See, e.g.. Union O il Co. v. S m ith , 249 U.S. 337, 3 4 6 -4 7 (1919); U n ite d S ta te s v. Carlile. 67 l.D . 417, 421 (1960). See generally J. L o n e rg a n , A ccess to In te rm in g led M in e ra l Deposits, M in in g C la im s a n d Private L a n d s Across S u rro u n d in g Public D om ain a n d N a tio n a l Forest L a n d s. 8 L an d & W a te r L. R ev. 124 (1973). 33 sheep across it to reach the even-numbered sections of the public domain. The Court denied plaintiffs’ request for an injunction with the following explanation: We are of opinion that there is an implied license, grow­ ing out of the custom of nearly a hundred years, that the public lands of the United States . . . shall be free to the people who seek to use them where they are left open and unenclosed, and no act of government forbids this use. . .. The whole system of the control of the public lands of the United States as it had been conducted by the G ov­ ernment, under acts of Congress, shows a liberality in regard to their use which has been uniform and remarkable. 133 U.S. at 326-27. The Court refused to allow the complainants, under the pretense of owning a small portion of a tract of land, to obtain control over the entire tract and thereby deny defendants their privi­ lege to use the public domain. 133 U.S. at 322. See also, Broder v. Water Co., 101 U.S. 274, 276 (1879) (Court noted conduct of government encouraging development of mines and construction of canals and ditches on public domain); Forbes v. Gracey, 94 U.S. 762 (1876) (Court noted tacit consent to enter upon the public lands for the purposes of mining); Atchison v. Peterson, 87 U.S. (20 Wall.) 507 (1874) (Court noted “silent acquiescence” to the general occupation of the public lands for mining). In the late 19th century, efforts expanded to protect the Nation’s natural resources from the results of what were perceived as overly generous land-use policies. See Robbins, supra, at 301-24. In 1891, the Congress passed a law authorizing the President to reserve forest lands from the public domain. Act of March 3, 1891, ch. 561, §24, 26 Stat. 1103. One provision of this Act, § 24, later known as the Forest Re­ serve Act of 1891, was added as an amendment by the conference committee.9 The amended bill was considered in the closing days of the Congress on an oral presentation of its terms, no printed version being available. It was approved with little debate.10 The status of these forest 9 S e c tio n 24 p ro v id e d : [T ]h e P re sid e n t o f th e U n ite d S ta te s m a y , fro m tim e to tim e, set a p a rt an d re se rv e , in a n y S ta te o r T e r rito r y h a v in g p u b lic land b e a rin g forests, a n y part- o f th e p u b lic lands w h o lly o r in p a rt c o v e re d w ith tim b e r o r u n d e rg ro w th , w h e th e r o f c o m m e rc ia l valu e o r n o t, as p u b lic re s e rv a tio n s , an d th e P resid en t shall, by p u b lic p ro c la m a tio n , d e c la re th e esta b lish m e n t o f su ch re s e rv a tio n s an d th e lim its th e reo f. l0S o m e S e n a to rs ex p ressed c o n c e rn ab o u t not k n o w in g e x a c tly w h a t w as in .t h e r e p o rt, b u t th e m a jo rity felt th a t in th e c lo sin g d a y s o f th e session “ th e re has g o t to be s o m e th in g ta k en fo r g ra n te d o r else th e p u b lic b usiness c a n n o t g o fo rw a rd as it should.*’ 22 C o n g . R ec. 3 5 4 6 -4 7 (1891). T h e b rie f H o u se d e b a te a p p e a rs at 22 C o n g . R ec. 3 6 1 3 -1 6 (1891). 34 reserves was not defined, nor were guidelines provided for the manage­ ment of the reserves. On February 22, 1897, President Cleveland, pursuant to the 1891 Act, issued proclamations placing approximately 20 million acres of public land in forest reserves. Presidential Proclamations Nos. 19-31, Feb. 22, 1897, 29 Stat. 893-912. Within the boundaries of the reserves were villages, patented mining claims, homestead claims of actual set­ tlers and other developments. See 30 Cong. Rec. 901-02 (1897). Each of the proclamations contained the following admonition: “Warning is hereby expressly given to all persons not to enter or make settlement upon the tract of land reserved by this proclamation.” See, e.g., 29 Stat. 894 (1897). The proclamations also prohibited the general use of timber on the reserves, and jeopardized other theretofore legitimate activities of persons living within or near the reserves. Congressmen from states affected by the proclamations expressed outrage at what they considered the President’s hasty and ill-advised action. 30 Cong. Rec. 902 (1897). This reaction culminated in the passage of an amendment to the Sundry Civil Expense Appropriation Act, 30 Stat. 36 (1897). This amendment was designed to solve the “difficulties surrounding these forest reservations” (id. at 900) and to provide for “administering the forest so reserved” (id. at 909).11 Senator Carter of Montana explained that the amendment was offered “not for the purpose of benefitting any particular individual or class of individ­ uals, but for the purpose of permitting existing communities in the United States to enjoy the privileges which have ordinarily been ac­ corded to the pioneer settlers on the frontier everywhere.” Id. at 902. Other Senators also criticized the provision prohibiting entry or settle­ ment upon the reserves. Id. at 910-11. Senator Allison of Iowa stated: “[I]f segregations are made I think every interest existing at the time, however remote it may be, should be protected.” Id. at 911 (emphasis added). The House debate on the amendment indicates that the con­ gressmen also were concerned about preserving existing uses of the forest reserves. Id. at 1007-13 (remarks of Representatives Castle, Knowles, Lacy, and DeVries).12 The bill was referred to a conference committee, which reported the bill without changes in or comments upon the access section. Id. at 1242-43. During the Senate debate on the conference report, some of the same western Senators on whose behalf the amendment was intro­ duced sought to change the clause “actual settlers residing within the boundaries of national forests” to “bona fide settlers or owners within a reservation.” Id. at 1278-81. Senator White explained that the provision “ T h e a m e n d m e n t te m p o ra rily re s to re d th e w ith d ra w n lands to th e p u b lic d o m a in b y su sp e n d in g th e o p e ra tio n o f th e p re sid e n tia l p ro c la m a tio n s fo r a p p ro x im a te ly o n e year. 30 C o n g . R ec. 8 9 9 -9 0 0 (1897). I t also clarifie d th e P re s id e n t’s a u th o rity to re v o k e , m odify, o r su sp e n d s u c h p ro c la m a tio n s. ,2 F o r a c o m p le te d iscu ssio n o f th is le g islativ e h isto ry , see 42 O p . A lt’y G en . 127, 135-38 (1962). 35 as drafted did not adequately protect all persons who had acquired title in fee from the government. Id. at 1278. The amendment was defeated. Id. at 1285. Opponents of the amendment emphasized that there was no intent to deprive any person of access to his property, and that “what­ ever rights have been acquired as respects the public lands under the public land laws are reserved and preserved.” Id. at 1283. It was noted that entry upon the forests was subject to the rules and regulations of the Secretary of Interior (who then had this administrative authority) and that such rules would not likely prevent access to a person’s home. Id. at 1280 (remarks of Senator Berry). Notwithstanding the concession that the bill was “imperfect,” the conference report was agreed to. It was pointed out that further amendment would cause substantial delay and that any evils could be corrected by subsequent legislation. Id. at 1282—83. The House adopted the conference report without debate on this provision. Id. at 1397-401. This legislative history demonstrates that the effect of the second sentence of § 478 is to protect whatever rights and licenses with regard to the public domain existed prior to the reservation. We interpret the provision as a congressional declaration that the establishment of forest reserves would not alter the long-standing policy of allowing unimpeded access to the public land or interfere with the rights of persons then using the land, not as an affirmative grant of a broad right of entry to all persons. The express language of the statute provides that nothing in the act shall be construed to prohibit certain activities. The language grants no rights not already in existence. See Robbins, supra, at 323; John Ise, The United States Forest Policy 140 (1920). The protection of “lawful” and “proper” entry upon the reserves cannot be construed to limit congressional authority to regulate such entry. No vested right to use the public domain for a particular purpose arises from the government’s mere acquiescence in such use. In Light v. United States, 220 U.S. 523 (1911), the Court wrote: [WJithout passing a statute, or taking any affirmative action on the subject, the United States suffered its public domain to be used for such purposes. There thus grew up a sort of implied license that these lands, thus left open, might be used so long as the Government did not cancel its tacit consent. Buford v. Houtz, 133 U.S. 326. Its failure to object, however, did not confer any vested right on the complainant, nor did it deprive the United States of the power of recalling any implied license under which the land had been used for private purposes. Id. at 535. See also The Yosemite Valley Case, 82 U.S. (15 Wall.) 77 (1872); Frisbie v. Whitney, 76 U.S. (9 Wall.) 187, 194 (1869). Section 478 clearly subjects entry upon the national forests to reason­ able regulation by the Secretary. Prior to the enactment of the Federal 36 Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701-1782, and its repeal of § 2 of the Act of June 4, 1897, 16 U.S.C. § 551, insofar as the latter section applied to the issuance of rights-ofway through public lands, the Secretary was required to read § 478 and §551 together. United States v. Grimaud, 220 U.S. 506, 515 (1911). Section 551 provides that the Secretary shall “make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to pre­ serve the forests thereon from destruction . . . This section was held to confer upon the Secretary a “broad scope of regulation” intended to “be effective.” See 42 Op. A tt’y Gen. 127, 140, citing Chicago Mil. & St. P. Ry. v. United States, 218 F. 288, 298 (9th Cir. 1914), affd, 244 U.S. 358 (1917); Shannon v. United States, 160 F. 870, 873 (9th Cir. 1908). In Grimaud, the Court stated that the Secretary “is required to make provisions to protect the forest reserves from depredation and harmful uses.” 220 U.S. at 552. The Secretary’s authority to grant rights-of-way across national forest lands now is based on 16 U.S.C. §§ 532-538, and FLPMA, 43 U.S.C. §§ 1761-1771. Both statutes authorize the Secretary to protect the forest lands.13 This interpretation is consistent with the 1962 opinion of the A ttor­ ney G eneral.14 His review of the legislative history of §478 disclosed a legislative desire to protect explicitly only the rights of ingress and egress of actual settlers. 42 Op. A tt’y Gen. 127, 138. He found that entry upon the national forests by all other persons is subject to your rules and regulations covering the forests and discussed the scope of your regulatory authority as follows: ,3 S ectio n 504 o f F L P M A . 43 U .S .C . § 1764, d ire c ts ih e S e c re ta ry to issue re g u la tio n s w ith re s p e c t to th e te rm s an d c o n d itio n s o f th e rig h ts-o f-w a y . S e c tio n 505, 43 U .S .C . § 1765, req u ires, in ter alia, th a t e a c h rig h t-o f-w a y p erm it c o n ta in te rm s an d c o n d itio n s w h ic h w ill " p r o te c t th e en v iro n m en t.* ' “ p ro te c t F e d e ra l p r o p e rty ,“ an d “ o th e rw ise p ro te c t th e p u b lic in terest in th e lan d s tra v e rse d b y th e rig h ts-o fw a y o r a d ja c e n t thereto.** T h e A c t o f O c to b e r 13, 1964, 16 U .S .C . §§ 5 3 2 -5 3 8 , w h ic h g e n e ra lly c o n c e rn s th e c o n s tru c tio n an d m a in te n a n c e o f a sy stem o f ro a d s w ith in th e n atio n al fo rests, a u th o riz e s th e S e c re ta ry to g ra n t p erm a n e n t o r te m p o ra ry ea se m e n ts “ u n d e r su ch re g u la tio n s as he m ay p r e ­ sc rib e ." 16 U .S.C . § 533. u In 1964, in resp o n se to th e A tto rn e y G e n e ra l’s 1962 o p in io n . C o n g re s s passed le g islatio n .g iv in g th e S e c re ta ry th e a u th o rity to g ra n t p erm a n e n t o r te m p o ra ry ea se m e n ts o v e r la n d s m a n ag ed b y th e D e p a rtm e n t o f A g ric u ltu re . P ub. L. N o. 8 8 -657. § 2 , 78 S tat. 1089 (1964). T h e c o m m itte e re p o rts o f b o th th e H o u se a n d th e S en ate in d ic a te th a t C o n g re s s u n d e rs to o d th e A tto r n e y G e n e r a l's o p in io n to h o ld th a t § 478 w as “ n o t to be c o n s tru e d as a s ta tu to ry g u a ra n te e o f ac cess to p riv a te lan d s w ith in th e n atio n al fo re sts." S. R ep. N o. 1174, 88th C o n g ., 2d Sess. 4 (1964); H .R . R ep. N o . 1920. 88 th C o n g ., 2d Sess. 4 (1964). In th e S en ate r e p o rt, th e c o m m itte e stated : It sh o u ld b e ex p ressly n o te d th a t th is le g islatio n is in te n d e d n e ith e r to affirm n o r to a b ro g a te th e A tto rn e y G e n e ra l’s in te rp re ta tio n o f th e ac t o f J u n e 4. 1897 (30 S tat. 36, 16 U .S .C . 478), w ith resp ect to th e act*s as s u ra n c e o r lack o f assu ran ce, c o n c e rn in g a c cess to p riv a te lands ac ro s s n atio n al fo rest lands. H o w e v e r, th e p r e d ic ta b le efTect o f th is legislation w ill be to m inim ize th e lik elih o o d o f litig a tio n b e tw e e n th e U n ited S ta te s an d p riv a te la n d o w n e rs d e sig n e d to test a p p lic a tio n s o f th e A tto r n e y G e n e r a l’s in te rp re ta tio n o f th e ac t o f J u n e 4, 1897. T h is le g islatio n w ill p ro v id e to m o st o w n e rs o f p riv a te land a s a tisfa c to ry a lte rn a tiv e to s ta tu to ry a s s u ra n c e o f a c c e s s to an d fro m th e ir lands. T h e c o m m itte e th e re fo re re c o m m e n d s e n a c tm e n t o f th e ac t as a m en d ed . A m e n d m e n ts w h ic h w o u ld h a v e c re a te d a s ta tu to r y rig h t o f a c cess w e re re je c te d b o th in c o m m itte e (S. R ep . N o. 1174, at 8) an d on th e S e n a te flo o r. 110 C o n g . R ec. 16.413-15 (1964). 37 As the Supreme Court pointed out in United States v. Grimaud, 220 U.S. 506, 516-17, it is your function to determine what private use of the national forests in any given case is consistent with the purposes sought to be attained by the statute. The imposition of harsh and oner­ ous requirements not related to the benefit received or to your general responsibility to preserve and manage the national forests, might well constitute an abuse of discretion. 42 Op. A tt’y Gen. at 147. Your department argues that it has a long-standing policy that the Secretary is without discretion to deny access under § 478, and that a change in this policy would have a drastic effect on the well-established expectations of landowners within the national forests. It is a familiar principle that interpretations made contemporaneously with the enact­ ment of a statute and consistently followed for a long period are entitled to great weight, particularly if they have been relied on by the public. See Zuber v. Allen, 396 U.S. 168, 192-93 (1969); Alaska S.S. Co. v. United States, 290 U.S. 256, 262 (1933); Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315 (1933). Correspondingly, when an agency’s interpretation has been neither consistent nor long-standing, the weight given it diminishes accordingly. See Southeastern Community College v. Davis, 422 U.S. 397, 411-12 (1979); United Housing Founda­ tion, Inc. v. Forman, 421 U.S. 837, 858-59 n.25 (1975). Prior to 1962, your department relied on the first sentence of § 478 to find the same rights you now find in the second sentence. This 1962 revision of the department’s interpretation occurred almost 70 years after enactment of the statute.15 In any case, to the extent that my judgment is governed by the customary rules of statutory construction, I am guided by the overrid­ ing rule that the statute, and not the agency’s interpretation, is conclu­ sive. See, e.g., VolksWagenwerk v. Federal Maritime Commission, 390 U.S. 261, 272 (1968). Additionally, I am persuaded by the legislative history and by the common sense rule that legislative history disclosing Congress’ intent is entitled to more weight than a conflicting adminis­ trative interpretation and must control. See Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315 (1933); Sutherland, Statutes and Statutory Construction §49.04 (1973 & Supp. 1975). In sum, I conclude that § 478 does not grant access rights to private inholders other than actual settlers. In my opinion, absent a right of access otherwise granted to the landowner by Congress, you may deny requested access if such denial will protect the public interest in the 14 In S oriano v. U nited States. 494 F .2 d 681, 683 (9 th C ir. 1974), th e c o u r t d e c lin e d to g iv e sp ecial d e fe re n c e to a re g u la tio n p ro m u lg a te d m o re th a n 100 y ea rs a fte r e n a c tm e n t o f th e statu te. 38 land to be traversed. Because you may not arbitrarily deny access to private landowners, I do not foresee that this interpretation will have a drastic effect on their expectations. II. Your second question is whether an inholder has an easement by necessity or other implied easement across national forest land. The conclusion in Part I (that § 478 does not grant a right of access to private property across national forest reserves, and that, absent an access right otherwise guaranteed to a landowner by Congress, § 478 allows denial of access) renders apparent the importance of this question. In the 1962 opinion, the Attorney General stated that whether an easement by necessity lies against the government is a complex and controversial question. While he concluded that it need not be decided at that time, the Attorney General nonetheless offered his view that such an easement does not exist over public lands. 42 Op. A tt’y Gen. 127, 148. It is also my view that the common law doctrine of easement by necessity does not apply to congressional disposition of the public domain. This does not mean, however, that access cannot otherwise be implied. In my opinion, access may be implied if it is necessary to effectuate the purpose for which the land was granted. The doctrine of easement by necessity is a common law property concept that was recently described by the Supreme Court as follows: “Where a private landowner conveys to another individual a portion of his lands in a certain area and retains the rest, it is presumed at common law that the grantor has reserved an easement to pass over the granted property if such passage is necessary to reach the retained property.” Leo Sheep Co. v. United States, 440 U.S. 668, 679 (1979).16 Authoritative treatises on property law identify three basic prerequisites to the cre­ ation of an easement by necessity.17 First, the titles to the two tracts in question at some time must have been held by one person. This is the unity-of-title requirement. Second, the unity of title must have been severed by a conveyance of one of the tracts. Third, the easement must be necessary in order for the owner of the dominant tenement to use his land. This necessity must exist both at the time of the severance of title and at the time of application for the exercise of the easement.18 16 In L eo Sheep, th e C o u rt c o n s id e re d th e q u estio n w h e th e r th e U n ite d S ta te s h ad re s e rv e d an ea sem en t to pass o v e r lan d s w h ic h h ad passed fro m fed eral o w n e rs h ip . Y o u r in q u iry , c o n v e rs e ly , is w h e th e r th e U nited S tates g ra n te d an e a sem en t to a fed era l land g ra n te e to pass o v e r re ta in e d la n d s to re a c h th e c o n v e y e d p r o p e rty . T h e L eo S heep ca se is discu ssed in fra at p ag es 19-20, n o te 28. 17 S ee generally 3 P o w e ll on R eal P r o p e rty § 4 1 0 (1979); 2 T h o m p s o n o n R ea l P r o p e r ty § 363, at 4 2 4 -2 7 (1961 & S u p p . 1978); 3 T iffa n y , L a w o f R eal P ro p e r ty § 7 9 3 (3 d ed . 1939 S u p p . 1979); C o m m e n t, E asem ents B y W ay o f N ecessity Across F ederal L ands, 35 W ash. L . R ev . 105, 107 (1960). 18 C o u rts h a v e e m p h a siz e d v a rio u s fa c to rs in ap p ly in g th is d o c trin e . T h e R e s ta te m e n t o f P r o p e r ty § 4 7 6 , lists so m e o f th e se facto rs: Continued 39 See 3 Powell on Real Property §410, at 34-59 to 34-60 (1979); Simonton, Ways By Necessity, 25 Colum. L. Rev. 571, 573-79 (1925). Whether this doctrine applies to the government has not been resolved. Courts and commentators have differed.19 To determine whether the doctrine applies to property of the federal government, it is necessary to determine what law controls. Here fed­ eral law must control. The Constitution vests in Congress alone author­ ity to dispose of and make needful rules concerning the public domain. U.S. Const., Art. IV, § 3, cl. 2. As I have noted earlier in this opinion, this power is vested in Congress “without limitation.” United States v. Gratiot, 39 U.S. (14 Pet.) 526, 537 (1840). See also Kleppe v. New Mexico, 426 U.S. 529, 536 (1976); United States v. San Francisco, 310 U.S. 16, 29-30 (1940). The construction of grants by the United States has been held to be a federal, not a state, question. United States v. Oregon, 295 U.S. 1, 27-28 (1935), Packer v. Bird, 137 U.S. 661, 669 (1891).20 With regard to implying an easement across land which the United States still holds in trust for the public, therefore, federal law must control. Utah Power & Light Co. v. United States, 243 U.S. 389, 404 (1917).21 Federal property can be made subject to state law only when congressional authorization is clear and unambiguous. See EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 211 (1976); Kleppe v. New Mexico, 426 U.S. 529, 536 (1976). (a) w h e th e r (he c la im a n t is th e c o n v e y o r o r th e c o n v e y e e ; . (b) th e te rm s o f th e c o n v e y a n c e : (c) th e c o n s id e ra tio n g iv e n fo r it: (d ) w h e th e r th e claim is m a d e ag a in st a s im u lta n e o u s c o n v e y e e ; (e) th e ex ten t o f th e necessity ; ( 0 w h e th e r r e c ip ro c a l b en e fits resu lt to th e c o n v e y o r o r c o n v e y e e ; (g) th e m a n n e r o f use o f th e land b e fo re c o n v e y a n c e : (h) th e ex ten t to w h ic h p rio r use w as k n o w n . 19See. e.g.. U nited S ta tes v. D u n n . 478 F .2 d 443 (9 th C ir. 1973) (h o ld in g , w ith o n e ju d g e d issen tin g , th a t th e d o c tr in e is ap p lic a b le ); S u n S tuds. Inc.. 83 I.D . 518 (1976) (h o ld in g th a t th e d o c tr in e is n o t a p p lic a b le ). S o m e c o m m e n ta to rs s ta te th a t w a y s o f n e c e ssity d o n o t a rise ag a in st th e s o v ereig n . 2 G . T h o m p s o n , C o m m e n ta rie s o n th e L a w o f R eal P r o p e rty § 362, at 417 (1961); Jo n e s o n E a se m e n ts § 3 0 1 , at 247 (1898). O th e rs c o n c lu d e th a t th e d o c trin e sh o u ld be a p p lic a b le . 3 P o w e ll o n R eal P r o p e rty § 4 1 0 at 34-73 to 3 4 -7 4 (1979); 3 T iffan y , L a w o f R eal P r o p e r ty § 793 (3d ed . 1939). 20 W h e n , h o w e v e r, th e la n d h as passed fro m fed era l o w n e rs h ip , it b e c o m e s su b je c t to th e la w s o f th e s ta te in w h ic h it is lo c a te d . S ee O regon e x rel. S ta te L a n d Bd. v. C orvallis S a n d <& G ravel Co.. 429 U .S. 363, 372 (1977). It fo llo w s, th e re fo re , th a t w h e re title to b o th a d o m in a n t a n d se rv ie n t te n em en t h as p assed fro m fed era l o w n e rs h ip , th e q u e stio n w h e th e r th e u n ity -o f-title re q u ire m e n t is satisfied by p rio r g o v e rn m e n t o w n e rs h ip is a q u e stio n o f s ta te law . S ta te c o u r ts h a v e re a c h e d d iffe rin g o p in io n s o n th is q u e stio n . C o u rts in C a lifo rn ia , F lo rid a , In d ia n a, O k la h o m a , T e n n e sse e , an d T e x a s h a v e c o n c lu d e d th a t u n ity o f title c a n n o t be b ased on p rio r g o v e rn m e n t o w n e rs h ip . B u lly H ill Copper M in in g & S m e ltin g Co. v. Bruson. 4 C al. A p p . 180, 87 P. 237, 238 (1906); G uess v. Azar. 57 So. 2d 443, 444 (F la. 1952); C o n tin en ta l E nterprises Inc. v. Cain, 296 N .E .2 d 170, 171 (In d . 1973); D u d ley v. Meggs, 153 P. 1121, 1122 (O k la. 1915); Pearne v. C oal C reek M in. & M fg. Co.. 9 0 T e n n . 619, 6 2 7 -2 8 , 18 S .W . 4 0 2 -0 4 (1891); S ta te v. B lack Bros.. 116 T e x . 615, 6 2 9 -3 0 , 297 S .W . 213, 2 1 8 -1 9 (1927). C o u r ts in A rk an sas, M issouri a n d M o n ta n a h a v e re a c h e d th e o p p o s ite c o n c lu s io n . A rka n sa s S ta te H ig h w a y C o m m 'n v. M arshall. 485 S .W .2d 740, 743 (A rk . 1972); S n y d e r v. Warford, 11 M o . 513, 514 (1848); Violet v. M artin. 62 M o n t. 335, 205 P. 221, 223 (1922). 21 T h e ru le s a d o p tin g s ta te law to d e te rm in e w h a t rip a ria n rig h ts p ass in a fe d e ra l g r a n t a r e n ot a p p lic a b le to th e q u e s tio n o f w a y s a c ro s s fed era l land. U tah Power & L ig h t Co. v. U n ited States. 243 U .S. 389, 411 (1917). See O regon e x rel. S ta te L a n d Bd. v. Corvallis S a n d <£ G rave! Co.. 429 U .S . 363, 372 (1977); U nited S ta tes v. Oregon. 295 U .S. 1, 27 (1935); H a rd in v. Jordan. 140 U .S. 371 (1891). 40 To determine what rights have passed under federal law, it is neces­ sary to interpret the statute disposing of the land.22 It is a recognized principle that all federal grants must be construed in favor of the government “lest they be enlarged to include more than what was expressly included.” United States v. Grant River Dam Authority, 363 U.S. 229, 235 (1960); United States v. Union Pac. Ry., 353 U.S. 112, 116 (1957).23 In Pearsall v. Great No. Ry., 161 U.S. 646, 664 (1895), the Court wrote: “Nothing is to be taken as conceded . . . but what is given in unmistakeable terms, or by an implication equally clear. . . .” These general rules must not be applied to defeat the intent of Con­ gress, however. The Supreme Court has stated that public grants are “not to be construed as to defeat the intent of the legislature, or to withhold what is given either expressly or by necessary or fair implication. . . .” United States v. Denver & Rio Grande R.R., 150 U.S. 1, 14 (1893). In all cases, the intent of Congress must control. Id. See also Missouri, K. & T. Ry. v. Kansas Pac. Ry., 97 U.S. 491, 497 (1878). These rules dictate that if it is clear that Congress intended to grant access, such access must be acknowledged, its scope consistent with the purposes for which the grant was made.24 An implied easement defined by the actual intent of Congress must be distinguished from an ease­ ment by necessity, which relies on a presumed intent of the parties. There are no clear uniform rules for determining the scope of an easement by necessity. In some cases, it has been held that the scope includes whatever access is necessary for any reasonable, beneficial use of the dominant tenement, not merely the use for which the grant was made. See, e.g., New York Cent. R.R. v. Yarian, 219 Ind. 477, 39 N.E.2d 604, 606 (1942); Soltis v. Miller, 444 Pa. 357, 283 A.2d 369, 370-71 (1971); Meyers v. Dunn, 49 Conn. 71, 78 (1881); Whittier v. Winkley, 62 N.H. 338, 339-40 (1882); Jones on Easements § 323 (1898). Since the common law doctrine is based on the presumed intent of the parties, its operation may have the effect of disregarding or possibly frustrating the intention of the grantor, absent express language in the conveyance denying an easement. 2 G. Thompson, Law of Real Property § 362 (1961), citing Lord v. Sanchez, 136 Cal. App. 2d 704 289 P.2d 41 (1955); Moore v. Indiana & Michigan Elec. Co., 299 Ind. 309, 95 N.E.2d 210 (1950). Thus, if the doctrine were allowed to operate where the G ov­ ernment is the grantor, the actual intent of Congress would, at the least, 23 W e n o te th a t y o u r d e p a rtm e n t, w ith o u l re a c h in g th e ea sem en t-b y -n e cessity issue, h as c o n c lu d e d th a t an ex a m in atio n o f th e g ra n tin g s ta tu te is essential to d e te rm in in g a c cess rig h ts. S ee M e m o ra n d u m : A c c e ss to S ta te an d P riv a te In h o ld in g s in N a tio n a l F o re s ts at 18, U .S. D e p t, o f A g ric u ltu r e (O c t. 31, 1979). 23 S ee also C a m fie ld v. U nited States, 167 U .S. 518, 52 4 -2 6 (1897); U n ited S ta te s v. C larke, 529 F .2 d 984, 986 (9 th C ir. 1976). 2*See C u rtin v. Benson. 222 U .S. 78, 86 (1911). In U nited States v. 9.947.71 Acres. 220 F. S u p p . 328, 331 (D . N ev . 1963), th e c o u rt re c o g n iz e d an im plied a c cess rig h t fo r m in in g p u rp o s e s w h e re a m in in g claim o w n e r had to c ro s s p u b lic d o m a in to reac h his claim . C f A rizona v. C alifornia, 373 U .S. 546, 5 9 9 -6 0 0 (1963); W inters v. U nited States, 207 U .S. 564, 575-77 (1908). T h e se ca ses re c o g n iz e an im p lied rese rv a tio n o f w a te r rig h ts fo r Indian reserv atio n s. 41 become irrelevant, and, in some cases, would be thwarted. Plainly, the application of the common law doctrine would be inconsistent with the established principles that the intent of Congress in disposing of federal land must control, and that rights in government land cannot be pre­ sumed to pass by implication.25 The doctrine of easements by necessity was developed to settle disputes between private parties, not disputes involving the federal governm ent.26 The federal government has at one time held title to over three-fourths of the territory of the United States; it today retains title to approximately one-third of the nation’s land. One-Third of the Nation’s Land: A Report to the President and to Congress by the Public Land Law Review Comm’n, at 8 (1970). It holds property as sovereign, as well as proprietor, and exercises power beyond that which is available to a private party. Kleppe v. New Mexico, 426 U.S. 529, 539 (1976); Light v. United States, 220 U.S. 523, 536-37 (191 1). Throughout its history, statutes have been enacted allowing access across its land.27 It holds land in trust for all the people and in dispos­ ing of it is concerned with the public interest. Utah Power & Light Co. v. United States, 243 U.S. 389, 409 (1917); Causey v. United States, 240 U.S. 399, 402 (1916). In Causey, the Court wrote that “the Government in disposing of its public lands does not assume the attitude of mere seller of real estate at its market value.” Id. For these reasons, other doctrines applicable to private landowners have been held inapplicable to the sovereign. In Jourdan v. Barrett, 45 U.S. (4 How.) 169, 184-85 (1846), the Supreme Court held that no prescriptive rights may be obtained against the sovereign, and in Field v. Seabury, 60 U.S. (19 How.) 323, 332-33 (1856), the Court held that government patents may not be collaterally attacked as can grants from a private party. In United States v. California, 332 U.S. 19 (1947), the 25 It is n o te w o n h y th a t sin ce th e A tto rn e y G e n e ra l o p in e d in 1962 th a t th e d o c tr in e o f ea se m e n ts by n ec essity w as n o t e n fo rc e a b le ac ro s s fed era l land, C o n g re s s has n o t m o d ified th e rule. A lth o u g h this g e n e ra lly is n o t s tro n g e v id e n c e w h e n th e re is no in d ic a tio n th a t C o n g re s s w as a w a re o f th e ru lin g (Z u b e r v. A llen, 396 U .S. 168, 194 (1969)), it is m o re p e rs u a s iv e w h e n , as h e re , co n g re s s io n a l ac tio n d ire c tly re su lte d from th e o p in io n . S e e n.14, supra. S ee generally B ean v. L ed m a r. 368 U .S. 403, 4 1 2 -1 3 (1962); U nited S ta tes v. M idw est O il Co.. 236 U .S. 459, 481 (1915). 26T h e d o c trin e has b een tra c e d to e a rly E n g lish o rig in s. S im o n to n , W ays o f N ecessity, 25 C o lu m . L. R ev . 571, 57 2 -7 8 (1925). It u su ally has b een p re d ic a te d on p u b lic p o lic y fa v o rin g lan d u tiliz atio n an d a p re s u m p tio n o f in ten t. 3 P o w e ll on R ea l P ro p e rty § 4 1 0 at 3 4 -5 9 to 3 4 -6 0 (1979). 21 See. e.g.. A c t o f M a rc h 3, 1875, ch . 252, § 1, 18 S tat. 482 (re p e a le d 1976) (rig h t o f w ay fo r ra ilro ad s); A c t o f M a rc h 3, 1891, c h . 561, § 18 (re p e a le d 1976) ( rig h t o f w a y fo r irrig a tio n d itc h e s an d c a n als); A c t o f Ja n . 21, 1895, ch. 37, § I (re p e a le d 1976) (rig h t o f w a y fo r tra m ro d s , ca n als, and rese rv o irs); A c t o f J u ly 26, 1866, c h . 262, § 8, 14 S tat. 253 (re p e a le d 1976) (rig h t o f w ay fo r h ig h w ay s). T h e s e s ta tu te s w e re re p e a le d by th e F e d e ra l L a n d P o lic y an d M an a g e m e n t A c t o f 1976 ( F L P M A ) , P u b . L. N o . 9 4 -5 7 9 , § § 5 0 1 -5 1 1 , 90 S tat. 2776-82 (co d ifie d at 43 U .S .C . § § 1 7 6 1 -1 7 7 1 ). F L P M A p ro v id e s, w ith c e rta in e x c e p tio n s, th a t rig h ts o f w a y a c ro s s g o v e rn m e n t lan d c a n o n ly b e o b ta in e d as p ro v id e d in th a t A c t. 43 U .S .C J770. G e n e ra l a n d c o m p re h e n s iv e le g islatio n , p re sc rib in g a c o u rs e o f c o n d u c t to be p u rs u e d a n d th e p a rtie s an d th in g s a ffec ted , an d s p ecifically d e s c rib in g lim itatio n s an d e x c e p tio n s , is in d ic a tiv e o f a le g isla tiv e in ten t th a t th e s ta tu te sh o u ld to ta lly s u p e rs e d e an d re p la c e th e c o m m o n la w d e a lin g w ith th e s u b je c t m a tte r. Isbrandtsen Co. v. Johnson. 343 U .S. 779, 7 8 7 -8 8 (1952); S n e e l v. R uppert, 541 P .2 d 1042 (W y o . 1978); J. S u th e rla n d , S ta tu te s an d S ta tu to ry C o n s tru c tio n § 50.05 (1973 & S u p p . 1978). 42 Court refused to hold that the federal government had forfeited by laches or estoppel its interest in littoral property, stating: “The Govern­ ment, which holds its interests here as elsewhere in trust for all the people, is not to be deprived of those interests by the ordinary court rules designed particularly for private disputes over individually owned pieces of property. . . Id. at 40. These same reasons lead me to conclude, as did the Court in Leo Sheep, that the doctrine of easements by necessity as applicable to federal lands is “somewhat strained, and ultimately of little signifi­ cance” and that the “pertinent inquiry . . . is the intent of Congress.” 28 A grantee is entitled instead to reasonable access across government land to use his property, for the purposes for which the land grant was made, if such an access right either expressly or impliedly arises from the act authorizing the land grant.29 To interpret correctly congressional intent underlying a statutory land grant, it is necessary to look at the condition of the country when the grant was made, as well as the declared purpose of the grant. Leo Sheep Co. v. United States, 440 U.S. 668, 682 (1979); Winona & St. Paul R.R. v. Barney, 113 U.S. 618, 625 (1885); Platt v. Union Pacif. R.R., 99 U.S. 48, 64 (1878). In Superior Oil Co. v. United States, 353 F.2d 34 (9th Cir. 1965), for example, the court looked to the purpose of the grant and concluded that the scope of the implied access was not broad enough to include the type of entry sought. The plaintiff oil company was a lessee of a religious mission which had received a land patent to facilitate and encourage its activities among the Indians. The land in question was surrounded by the Hopi Reservation, which the United States held in trust for the Indians. The issue on appeal was whether 28In L eo Sheep Co. v. U nited States. 440 U .S. 668 (1979), th e C o u rt, in h o ld in g th a t th e fed eral g o v e rn m e n t d o e s not h a v e a re s e rv e d e a sem en t by n ec essity ac ro s s th e lan d o f its g ra n te e o r its g r a n te e 's su ccesso r, w ro te : F irst o f all, w h a te v e r rig h t o f p assag e a p riv a te la n d o w n e r m ig h t h av e , it is n o t at all c le a r th a t it w o u ld in c lu d e th e rig h t to c o n s tru c t a ro a d fo r p u b lic a c cess to a re c re a tio n a l a rea . M o re im p o rta n tly , th e ea sem en t is n o t a c tu a lly a m a tte r o f n ec essity in th is ca se b e c a u se th e G o v e rn m e n t has th e p o w e r o f em in en t d o m a in . J u ris d ic tio n s h av e g e n e ra lly seen em in en t d o m a in an d e a sem en ts by n ec essity as a lte rn a tiv e w a y s to e ffect th e sam e results. . . . [S Jtate c o u rts h a v e held th a t th e “e a sem en t b y n e c e ssity ” d o c trin e is not av a ilab le to th e so v ereig n . Id. at 679-81 (fo o tn o te s o m itte d ). O f c o u rs e , th e o p in io n in L eo Sheep is n o t a lo n e d is p o s itiv e o f th e q u estio n you h a v e asked. It in v o lv e d a claim by th e g o v e rn m e n t g ra n to r, n o t th e p riv a te g ra n te e , o f an e a sem en t by n ecessity. T h e C o u rt th e re d id rely su b stan tially on th e p o w e r o f em in en t d o m a in , an d w as c a re fu l n o t to d e c id e th e b ro a d e r q u e s tio n o f th e av ailab ility o f th e ea se m e n t-b y -n e c e ssity d o c trin e g en e ra lly . In an e a rlie r ca se refu sin g to find a re se rv e d w a y o f n ec essity fo r a p u b lic ea se m e n t ac ro ss p riv a te la n d , a d is tric t c o u r t s tated m o re b ro a d ly : ‘i t is, in m y ju d g m e n t, v e ry d o u b tfu l w h e th e r th e d o c trin e o f w ay s o f n ec essity has a n y a p p lic a tio n to g ra n ts fr o m th e g e n e ra I G o v e rn m e n t u n d e r th e p u b lic land la w s ." U nited S ta tes v. R indge, 208 F. 611, 618 (S .D . C al. 1913). S ee also. S u n S tu d s Inc., 83 I.D . 518 (1976). B u t see, B ydlon v. U nited States. 175 F . S u p p . 891 (C t. C l. 1959); M a c k ie v. U n ited States. 195 F . S upp. 306 (D . M inn. 1961). 29 O f c o u rs e , ev e n w ith o u t su c h an e n title m e n t, a la n d o w n e r m ay ap p ly fo r an ea se m e n t p erm it u n d e r p ro c e d u re s esta b lish ed p u rsu a n t to o th e r statu tes. S ee F L P M A , 43 U .S .C 1761-1771; A c t o f O c to b e r 13, 1964, 16 U .S .C . 532 et seq. It c a n n o t b e assum ed th a t C o n g re s s , o r fed era l r e g u la to ry a u th o ritie s , w ill e x e c u te th e ir p o w e r in su ch a w a y as to b rin g ab o u t in ju stice . S e e U n ited S ta te s v. C alifornia, 332 U .S. 19, 40 (1947). 43 the oil company was entitled to move heavy equipment across the reservation to drill for oil on the leased property. In ruling that access was limited to the scope of the grant, the court stated: Certainly it cannot be said either that public policy de­ mands or that the Indians’ trustee impliedly intended a grant of a way of access across Indian lands greater in scope than was required for mission purposes and whose greater scope was necessary only in order to permit the granted lands to be used in a fashion adverse to the interests of the Indians.30 Although some courts that have dealt with this issue have written in terms of easements by necessity, most of them in effect have looked at the grant in question and limited access according to the purpose of the grant. The Superior Oil case was relied on by the Tenth Circuit in Kinscherff v. United States, 586 F.2d 159 (10th Cir. 1978), which held: An easement by necessity for some purposes could possibly have arisen when the United States granted the patent to plaintiffs’ predecessor in interest. . . . While nothing ordi­ narily passes by implication in a patent, Walton v. United States, 415 F.2d 121 (10th Cir.), an implied easement may arise within the scope o f the patent. Id. at 161 (emphasis added). Similar statements appear in Utah v. Andrus, (unreported) C 79-0037 (D. Utah Oct. 1, 1979), in which Utah claimed an easement by neces­ sity for access to its school grant lands. Relying on United States v. Dunn, 478 F.2d 443, 444 n.2 (9th Cir. 1973), the district court con­ cluded: “Although this common law presumption might not ordinarily apply in the context of a Federal land grant, the liberal rules of construction applied to school trust land allowed for the consideration of this common law principle and justify its application here.” 31 The 30T h e c o u r t, in e ffec t, c re a te d a h y b rid d o c trin e , a p p ly in g p rin c ip le s o f b o th w a y s o f n ec essity an d w a y s c r e a te d b y th e a c tu a l in ten t o f th e g ra n to r: A p p e lla n t's p o sitio n is sim p ly th a t sin ce th e p a te n t fo r th e M ission w as in u n re s tric te d fee sim p le it c a rrie d w ith it by im p lic a tio n a w a y o f n e c e ssity o v e r lan d s o f th e U n ited S ta te s fo r all p u rp o s e s to w h ic h th e c o n v e y e d land m ig h t la w fu lly b e put. S u c h is n o t th e law . T h e s c o p e a n d e x te n t o f th e rig h t o f a c c e s s d e p e n d s n o t u p o n th e s ta te o f title o f th e d o m in a n t e s ta te , n o r th e e x iste n c e o r la c k o f lim itatio n s in th e g ra n t o f th a t esta te, b u t u p o n w h a t m ust, u n d e r th e c irc u m s ta n c e s , b e a ttrib u te d to th e g r a n to r e ith e r by im p lic a tio n o f in te n t o r by o p e ra tio n o f la w fo u n d e d in a pu b lic p o lic y fa v o rin g land u tiliz atio n . S u p erio r O il Co. v. U nited Stales, 353 F .2 d 34, 36 -3 7 (9 th C ir. 1965). 31 S lip O p . at 8. In U nited S ta te s v. D u n n , 478 F .2 d 443 (9 th C ir. 1973), th e U n ite d S ta te s s o u g h t an in ju n c tio n to p re v e n t D u n n , w h o h e ld title as a g ra n te e o f a ra ilro a d , fro m c o n s tr u c tin g an ac c e ss ro a d fo r c o m m e rc ia l a n d re sid e n tia l d e v e lo p m e n t o f his la n d . T h e d is tric t c o u r t g ra n te d p a rtia l su m m a ry ju d g m e n t, h o ld in g d e fe n d a n ts tre sp a ss e rs a n d th e g o v e rn m e n t e n title d to im m e d ia te possession. T h e N in th C irc u it re v e rs e d , h o ld in g th a t s u m m a ry ju d g m e n t w a s p re c lu d e d b e c a u se d e fe n d a n ts raised th e fa c tu a l issue w h e th e r th e y h a d an e a se m e n t by n ec essity . Id. at 446. T h e D u n n c o u r t 's o n ly d iscu ssio n o f th e a p p lic a tio n o f th e d o c trin e , h o w e v e r, a p p e a re d in a f o o tn o te re sp o n se to th e d issen tin g ju d g e . In th e d isse n t. J u d g e W rig h t s ta te d sim p ly th a t h e " w o u ld h o ld th a t u n d e r th e facts o f th is ca se th e C ontinued 44 court went on to hold that this right is not absolute, however. It reasoned: Under the Constitution Congress has the authority and responsibility to manage Federal land. U.S. Const, art. IV, § 3, cl. 2. . . . There is nothing in the school land grant program that would indicate that when Congress devel­ oped the school land grant scheme it intended to abrogate its right to control activity on Federal land. Further, it is consistent with common law property principles to find that the United States, as the holder of the servient tene­ ment, has the right to limit the location and use of Utah’s easement of access to that which is necessary for the state’s reasonable enjoyment of its right. . . . Thus, the court holds that, although the State of Utah or its lessee must be allowed access to section 36, the United States may regulate the manner of access under statutes such as FLPMA. Slip Op. at 21. Cases like Superior Oil, Kinscherff, and Utah v. Andrus lend support to my conclusions with respect to implied rights to access across federal land. While the common law easement by necessity does not run against the United States, a right to access may nonetheless be implied by reference to particular grants. And, to the extent that such implied rights exist, your broad authority—delegated to you by Con­ gress—to manage forest reserves empowers you to regulate their exer­ cise. See United States v. Perko, 108 F. Supp. 315, 322-23 (D. Minn. 1952), affd, 204 F.2d 446 (8th Cir.), cert, denied, 346 U.S. 832 (1953); Perko v. Northwest Paper Co., 133 F. Supp. 560, 569 (D. Minn. 1955). Determining what implied rights exist in the numerous federal land grants is beyond the scope of this opinion. As set forth above, this determination depends on when the grant was made and for what purpose. Mindful of the goal of giving effect to legislative intent, you must look to the rules the Supreme Court has adopted for interpretation of federal land grants. As discussed previously, land grants generally are to be strictly construed. This rule must be balanced against the conflicting rule that in some situations, certain types of land grants may deserve a more liberal construction because of the circumstances sur­ rounding passage of the statutes in question. See generally Leo Sheep Co. v. United States, 440 U.S. 668, 682-83 (1979) (railroad land grants); d o c trin e o f ea se m e n t b y n ec essity is n o t b in d in g o n th e U n ite d S tates. . . Id. at 446. T h e m a jo rity resp o n d ed ; S in ce th e G o v e rn m e n t d id n o t, in o u r ju d g m e n t, raise th e p o in t u p o n w h ic h J u d g e W rig h t bases his d issen t, w e h a v e n o t d iscu ssed it in th e o p in io n , b u t n e v e rth e le ss d id g iv e it c o n s id e ra tio n a n d c o n c lu d e d th a t it la ck ed m erit. Id. at 444 n.2. I d o not find th is ca se p ersu asiv e a u th o rity fo r a p p lic a tio n o f th e d o c trin e . 45 Wyoming v. United States, 255 U.S. 489, 508 (1921) (state school land grants). Absent express language to the contrary, however, a grant should not be construed to include broad rights to use retained govern­ ment property, particularly in the case of gratuitous grants. See United States v. Union Pac. R.R., 353 U.S. 112 (1957); Camfield v. United States, 167 U.S. 518 (1897); Wisconsin Central R.R. v. United States, 164 U.S. 190 (1896); 30 Op. A tt’y Gen. 263, 264 (1941). Once the right, if any, is found to exist, you should consider how that right reasonably should be regulated to protect the public’s interest in federal property. It is beyond dispute that such rights are subject to reasonable regulation without a resulting inverse condemnation. See generally Johnson v. United States, 479 F.2d 1383 (Ct. Cl. 1973) (restric­ tion of access by erection of fence enclosing extended portion of high­ way held not a taking); 2 Nichols on Eminent Domain § 5.72[1] (1978). Nonetheless, fewer restrictions properly may be imposed on well established, developed uses than on unexercised rights. See Penn Central Transp. Corp. v. City o f New York, 438 U.S. 104 (1978); Euclid v. Amber Realty Co., 272 U.S. 365 (1926). Frustration and appropriation are essentially different things. United States v. Grand River Dam Authority, 363 U.S. 229, 236 (1960), citing Omnia Co. v. United States, 261, 502, 513 (1923). III. Your third question is whether any act of Congress has modified any implied rights that may accompany federal grants. Of particular con­ cern are the Wilderness Act, 16 U.S.C. §§1131-1136, and various wilderness study acts.32 See, e.g., Montana Wilderness Study Act of 1977, Pub. L. No. 95-150, 91 Stat. 1243; Sheep Mtn. and Snow Mtn. Wilderness Areas, et al., Pub. L. No. 94-557, § 3, 90 Stat. 2635 (1976). These wilderness study acts require you to exercise your discretion so as to preserve the wilderness character of the land.33 If a request for a particular mode of access would destroy that wilderness character, therefore, you must deny the request. These acts also provide, how­ ever, that their mandates are subject to “existing private rights.” 34 See, e.g., Montana Wilderness Study Act, § 3(a), 16 U.S.C. § 1132 note. You must determine, therefore, what implied access rights are guaranteed in a particular grant, and allow the exercise of those rights. The wilder­ 32 T h e im p a c t o f th e W ild e rn e ss A c t is d iscu ssed in P a rt IV . 33 S ee P arker v. U ntied States. 448 F .2 d 793 (1 0 th C ir. 1971), cert, d en ied sub. nom ., K a ib a b In d u stries v. Parker, 405 U .S. 989 (1972) (h e ld S e c r e ta r y ’s d is c re tio n to e n te r in to th e tim b e r h a rv e s tin g c o n tr a c t fo r p u b lic land is lim ited by 16 U .S .C . § 1132(b)). 34 In a d d itio n to “ ex istin g p r iv a te rights,*' th e W ild e rn e ss A c t p e rm its in g re ss to a n d e g re s s fro m m in in g lo c a tio n s until D e c e m b e r 31, 1983. 16 U .S .C . § 1133(d)(3). S u c h in g re ss an d eg re s s is s u b je c t to re a so n a b le re g u la tio n b y th e S e c re ta ry o f A g ric u ltu re , c o n s is te n t w ith use o f th e lan d fo r m in eral e x p lo ra tio n , lo c a tio n , d e v e lo p m e n t, p ro d u c tio n , a n d re la te d p u rp o ses. 46 ness study acts thus do not modify any implied rights that may accom­ pany federal grants. Nor do I find that the other statutes you cite modify such implied rights. The Organic Act of 1897, 16 U.S.C. §478, discussed at length in Part I of this opinion, preserves access rights existing at the time of creation of a forest reserve. The Act of October 13, 1964, 16 U.S.C. 532-538, which authorizes the Secretary of Agriculture to grant ease­ ments for road rights-of-way over lands administered by the Forest Service,35 was passed in reaction to Attorney General Kennedy’s 1962 interpretation of 16 U.S.C. §478, which, as discussed earlier, allowed the imposition of a reciprocity requirement with respect to rights-ofway. By empowering the Secretary of Agriculture to grant permanent easements, the Congress hoped to provide an alternative to statutory assurance of access to and from private inholdings.36 Thus, the statute does not substantively modify implied rights of access. It does, along with FLPMA, allow the imposition of certain procedural requirements, such as application for a permit prior to road construction. We have found no other statute that substantively modifies implied access rights. IV. Your final question concerns § 5(a) of the Wilderness Act, 16 U.S.C. 1134(a). Your department has concluded that this provision guarantees a private owner “adequate access” to an inholding unless the land­ owner voluntarily chooses a land exchange. Pursuant to this interpreta­ tion, regulations have been promulgated providing that access “shall be given.” 37 The Department of the Interior has taken the position that § 5(a) grants the Secretary of the Interior (and, by analogy, the Secre­ tary of Agriculture) the authority to deny access to a landowner, and 3516 U .S .C . § 533. S ee p. 10 & n o te 13 supra. T h is s ta tu te w as n ot re p e a le d b y F L P M A . W ith resp ect to th e S e c re ta ry o f A g ric u ltu r e ’s a u th o rity u n d e r §§ 5 3 2-538, F L P M A p ro v id e d : [N ]o th in g in th is s u b c h a p te r shall b e c o n s tru e d as affe c tin g o r m o d ify in g th e p ro v isio n s o f sectio n s 532 to 538 o f title 16 an d in th e e v e n t o f c o n flic t w ith , o r in c o n sisten cy b e tw e e n , th is s u b c h a p te r a n d sectio n s 532 to 538 o f title 16, th e la tte r shall p rev ail: Provided fu rth e r. T h a t n o th in g in th is A c t sh o u ld be c o n s tru e d as m a k in g it m a n d a to ry , th a t, w ith resp ect to fo rest ro ad s, th e S e c re ta ry o f A g ric u ltu re lim it rig h ts-o f-w a y g ra n ts o r th e ir te rm s o f y ea rs o r re q u ire d is c lo su re p u rs u a n t to se c tio n 1761(b) o f this title o r im p o se an y o th e r c o n d itio n c o n te m p la te d by this A c t th a t is c o n tr a r y to p re se n t p ra c tic e s o f th a t S e c re ta ry u n d e r s e c tio n s 532 to 538 o f title 16. 43 U .S .C . § 1770(a). 36 S. R ep. N o . 1174, 88th C o n g ., 2d Sess. 4 (1964). See n o te 10 supra. 3736 C .F .R . § 293.12. T h is re g u la tio n p ro v id e s in p art: S ta te s o r p erso n s, a n d th e ir s u c c e sso rs in in te re st, w h o o w n la n d c o m p le te ly s u r ­ ro u n d e d by N atio n al F o re s t W ild ern ess shall be g iv e n su c h rig h ts as m ay b e n e c e ssa ry to a ssu re a d e q u a te a c cess to th e land. “ A d e q u a te a c c e s s ” is d e fin e d as th e c o m b in a tio n o f ro u te s a n d m o d e s o f tra v e l w h ic h w ill, as d e te rm in e d by th e F o re s t S e rv ic e , ca u se th e least la stin g im p a c t o n th e p rim itiv e c h a ra c te r o f th e land a n d at th e sam e tim e w ill s e rv e th e re a so n a b le p u rp o s e s fo r w h ic h th e S ta te a n d p riv a te la n d is h e ld o r used. T h is re g u la tio n is c o n s is te n t w ith y o u r d e p a rtm e n t’s in te rp re ta tio n o f 16 U .S .C . § 4 7 8 . S e e 36 C .F .R . § 212.8(b). 47 offer land exchange as indemnity.38 The Interior Department’s interpre­ tation, contrary to yours, under appropriate circumstances would allow denial of “adequate access” to private holdings as well as to stateowned inholdings. Some initial observations about the Wilderness Act are in order. The purpose of the Wilderness Act is to “secure for the American people of present and future generations the benefits of an enduring resource of wilderness.” 16 U.S.C. § 1131(a). “Wilderness” is defined as an area of “undeveloped Federal land retaining its primeval character and influ­ ence, without permanent improvements or human habitation.” 16 U.S.C. § 1131(c). Section 4(c) of the Act prohibits, with limited excep­ tions, use of motor vehicles or other mechanical transportation. 16 U.S.C. § 1133(c). It also prohibits permanent roads within any wilder­ ness area, except as specifically provided in the Act, and subject to “existing private rights.” Id. The Act directs you to administer wilder­ ness areas within your jurisdiction so as to preserve their wilderness character. 16 U.S.C. § 1133(b). The phrase “existing private rights” in § 4(c), 16 U.S.C. § 1133(c), is not defined in the Act or in its legislative history, but, in my opinion, includes existing easements, which are wellrecognized rights in property.39 Thus, in spite of the A ct’s general prohibitions, if a private inholder has an implied right to a particular type of access, that right is preserved. The Wilderness Act was developed over a 15-year period, with almost unprecedented citizen participation. See S. Rep. No. 109, 88th Cong., 1st Sess. 7 (1963). The first major wilderness bill was introduced in the 85th Congress. S. 1176, 85th Cong., 1st Sess. (1957). In 1961, the Senate passed a wilderness bill, S. 174, but the House failed to pass it. 38 S u p p le m e n ta l M e m o ra n d u m In S u p p o rt o f P la in tifT s M o tio n fo r P e rm a n e n t In ju n c tio n , at 14-19, U n ited S ta tes v. C otter Corp., N o. C 7 9 -0 3 0 7 (D . U ta h O c t. 1, 1979). T h e c u r r e n t reg u la tio n o f th e In te r io r D e p a r tm e n t’s F ish a n d W ild life S e rv ic e , 50 C .F .R . 35.13, a lth o u g h s o m e w h a t am b ig u o u s, re s tric ts a c cess to m eans an d ro u te s w h ic h w ill “ p re s e rv e th e w ild e rn e s s c h a ra c te r o f th e a re a .” T h e re g u la tio n p ro v id e s: R ig h ts o f S ta te s o r p e rs o n s an d th e ir su c c e s s o rs in in te re st, w h o se lan d is su rro u n d e d by a w ild e rn e s s u n it, w ill be re c o g n iz e d to a ssu re a d e q u a te a c cess to th a t land. A d e q u a te a c c e s s is d e fin e d as th e c o m b in a tio n o f m o d e s a n d ro u te s o f tra v e l w h ic h w ill best p r e s e r v e th e w ild e rn e s s c h a ra c te r o f th e la n d sc a p e . M o d es o f tra v e l d e s ig ­ n ated shall be re a so n a b le a n d c o n s is te n t w ith a c c e p te d , c o n v e n tio n a l, c o n te m p o ra ry m o d e s o f tra v e l in said v ic in ity . U se w ill b e c o n s is te n t w ith re a so n a b le p u rp o se s fo r w h ic h s u c h la n d is h eld . T h e D ir e c to r w ill issue s u c h p e rm its as a re n e c e ssa ry fo r ac cess, d e sig n a tin g th e m e an s an d ro u te s o f tra v e l fo r in g re ss an d d e g re s s (sic) so as to p re s e rv e th e w ild e rn e s s c h a ra c te r o f th e a rea . 395ee, e.g.. U nited S ta te s v. Welch, 217 U .S . 333, 339 (1910); M yers v. U n ited States, 378 F .2 d 696, 703 (C t. C l. 1967). It lo g ic a lly c o u ld b e a rg u e d th a t th e p h ra s e “ ex istin g p riv a te r ig h ts '' in c lu d e s an d p re s e rv e s o n ly th o s e rig h ts w h ic h h a d b ee n e x e rc ise d at th e tim e th e W ild e rn e ss A c t w as p assed . L ittle s u p p o rt exists, h o w e v e r, for th is a rg u m e n t th a t C o n g re s s in te n d e d to ex tin g u ish u n ex e rc ised ac cess rig h ts, le a v in g th e la n d o w n e r w ith o n ly th e rig h t to a c cess o r e x c h a n g e u n d e r § 5(a). W h e n p ro v id in g fo r p r e s e rv a tio n o n ly o f e s ta b lis h e d uses, C o n g re s s c le a rly so in d ic a te d . S ee 16 U .S .C . § 1133(d)(1) (p e rm ittin g esta b lish e d uses o f a irc ra ft a n d m o to rb o a ts ). In S. R ep . N o . 109, 88 th C o n g ., 1st Sess. 2 (1963), th e c o m m itte e s ta te d th a t u n d e r th e W ild e rn e s s P re s e rv a tio n S y stem , “ e x istin g p r iv a te rig h ts a n d esta b lish ed u ses" a re p e rm itte d to c o n tin u e . (E m p h a s is a d d e d .) A w a y o f a c c e s s to w h ic h a p erso n is e n title d b y ex p ress o r im p lie d g ra n t p re d a tin g th e W ild ern ess A c t is a rig h t w h ic h ex isted p r io r to th e e ffe c tiv e d a te o f th e A c t, w h e th e r e x e rc is e d o r u n ex e rc ised . 48 In 1963, S. 4 was introduced in the 86th Congress. It was identical to S. 174, with one exception not relevant here. It passed the Senate by a large margin (110 Cong. Rec. 17,458 (1964)), but was amended in the House (110 Cong. Rec. 17,461 (1964)). A conference committee was convened and adopted with few amendments the House version of the bill, H.R. 9070. See H.R. Rep. No. 1829, 88th Cong., 2d Sess. (1964). The conference bill was approved by both Houses (110 Cong. Rec. 20,603, 20,632 (1964)) and signed by the President on September 3, 1964. Section 5(a) of the Act deals with state and private property com­ pletely surrounded by wilderness areas. It provides: In any case where State-owned or privately owned land is completely surrounded by national forest lands within areas designated by this chapter as wilderness, such State or private owner shall be given such rights as may be necessary to assure adequate access to such State-owned or privately owned land by such State or private owner and their successors in interest, or the State-owned land or privately owned land shall be exchanged for federally owned land in the same State of approximately equal value under authorities available to the Secretary of Agri­ culture: Provided, however, that the United States shall not transfer to a State or private owner any mineral interests unless the State or private owner relinquishes or causes to be relinquished to the United States the mineral interest in the surrounded land. Since the enactment of the Wilderness Act, your department has inter­ preted this language to preserve the statutory right of access you found in 16 U.S.C. § 478.40 Because, in my opinion, §478 does not grant a right of access to inholders other than actual settlers, the question presented here is whether § 5(a) grants to inholders a broad right of “adequate access” beyond any existing private rights. I believe it does not. The term “adequate access” is not defined in the Act, but the legisla­ tive history makes clear that the term includes access not consistent with wilderness uses.41 For example, in both the Senate and House 40S ee n o te 37 supra. 41 O th e r sectio n s a p p ly to uses c o n s is te n t w ith w ild e rn e ss p re s e rv a tio n . In § 5(b), 16 U .S .C . § 1134(b), C o n g re s s p ro v id e d th a t w h e re v alid m in in g claim s o r o th e r v a lid o c c u p a n c ie s a r e s u r­ ro u n d e d b y a n atio n al fo rest w ild e rn e ss a rea , th e S e c re ta ry o f A g ric u ltu r e sh all, b y re aso n ab le re g u la tio n s co n siste n t w ith th e p re s e rv a tio n o f th e a re a as w ild e rn ess, p e rm it in g re ss to a n d eg ress fro m su ch s u rro u n d e d a re a s by m eans w h ic h h a v e been o r a re b e in g c u s to m a rily e n jo y e d w ith re s p e c t to sim ilarly s itu a te d area s. Cf. 16 U .S .C . § 1133(d) (p ro v id e s fo r re g u la tio n o f in g re ss a n d e g ress co n siste n t w ith use o f land fo r m in eral e x p lo ra tio n a n d d e v e lo p m e n t). S e c tio n 5(b) d id n o t a p p e a r in e ith e r S. 174 o r S. 4. It d id a p p e a r in se v e ra l e a rly H o u se v ersio n s o f th e bill, a n d th e se v ersio n s ex p ressly in c lu d e d “ p riv a te ly o w n e d la n d s" in a d d itio n to v alid m in in g claim s a n d o th e r valid C ontinued 49 debates, repeated references were made to road construction for motor­ ized vehicles. See, e.g., 107 Cong. Rec. 18,105 (1961); 109 Cong. Rec. 5,925-26 (1963). Accordingly, your regulation defining “adequate access” does not limit access to established uses or to means consistent with wilderness uses. It includes access which “will serve the reason­ able purposes for which the state and private land is held or used.” 42 What constitutes adequate access will depend on the facts and circum­ stances o f each case, and is a determination left to your discretion. The Act requires that the state or private inholder be given such rights as are necessary to assure adequate access, or that the land be exchanged for federally owned land of approximately equal value. The language of § 5(a) indicates that a landowner has a right to access or exchange. If he is offered either,, he has been accorded all the rights granted by the statute. If you offer land exchange, the landowner has no right of access under § 5(a). This interpretation is supported by the legislative history of the section.43 The language of § 5(a) first appeared in an amendment to S. 174, 87th Cong., 1st Sess. (1961). Senator Bennett of Utah proposed the amend­ ment in response to concerns of the Western Association of State Land Commissioners, and, accordingly, the amendment pertained only to state-owned land. 107 Cong. Rec. 18,092 (1961).44 The Senator identi­ fied a series of “loopholes” in the bill. He described the 13th loophole as follows: “No provision is made in S. 174 to preserve the right of o c c u p a n c ie s. T h is re fe re n c e to p riv a le ly o w n e d lan d s w as d e le te d in la te r v e rs io n s o f th e b ill, su c h as H .R . 9070. T h e re p o ris d o n o t e x p lain this d e le tio n . It m ay h a v e o c c u rr e d b e c a u se o f th e d ecisio n d u rin g th e sam e session to in c lu d e p riv a te ly o w n e d land in § 5(a). T h e final p a ra g ra p h o f § 5 , 16 U .S .C . § 1134(c), a u th o riz e s y o u to a c q u ire s ta te o r p riv a te ly o w n e d land o n ly if e ith e r th e o w n e r c o n c u rs o r C o n g re s s s p ecifically a u th o riz e s th e a c q u isitio n . 42 S e e 36 C .F .R . § 293.12, n o te 27 supra. 43 Y o u r d e p a rtm e n t relies o n th e le g isla tiv e h is to ry o f su b se q u en t le g islatio n to s u p p o rt its c o n te n ­ tio n th a t § 5(a) g ra n ts a rig h t to a d e q u a te ac c e ss to in h o ld e rs. In a re p o rt filed in c o n ju n c tio n w ith th e In d ia n P eak s W ild ern ess A re a , et a l, 16 U .S .C . § 1132 n o te , th e H o u se C o m m itte e n o te d th a t § 5 o f th e W ild e rn e s s A c t re q u ire s th e S e c re ta ry to g iv e p riv a te la n d o w n e rs a d e q u a te ac cess. H .R . R ep . N o . 1460, 9 5 th C o n g ., 2d Sess. 9 -1 0 (1978). T h e re p o rt d o e s n o t d iscu ss th e e x c h a n g e o p tio n . T h is le g is la tiv e o b s e rv a tio n is n o t a p a rt o f th e le g isla tiv e h is to ry o f th e W ild e rn e ss A c t. It is th e in te n t o f th e C o n g re s s th a t e n a c te d a la w th a t c o n tr o ls in te rp re ta tio n o f th a t law . U n ited A irlines, Inc. v. M cM a n n . 434 U .S. 192, 200 n.7 (1977); T eam sters v. U nited S ta tes, 431 U .S . 324, 354 n.39 (1977). W h a te v e r e v id e n c e is p ro v id e d b y th e re p o rt on th e su b se q u en t le g islatio n is o v e r c o m e b y c o n flic tin g ev id e n c e . See Southeastern C o m m u n ity C ollege v. Davis, 442 U .S . 397, 4 1 1 -1 2 (1979); Oscar M a yer & Co. v. Evans, 441 U .S. 750, 758 (1979). 44 T h e re so lu tio n passed b y th e W e ste rn S ta te L a n d C o m m issio n e rs s u g g e s te d th a t th e bill be a m e n d e d to c o n ta in th e fo llo w in g p ro v isio n : W h e n e v e r an a re a in c lu d in g S ta te -o w n e d land is in c o rp o ra te d in th e w ild e rn e s s sy stem , p ro v is io n shall b e m a d e fo r a c cess to su ch land a d e q u a te fo r th e re a so n a b le ex e rc ise o f its rig h ts th e re in b y th e S ta te a n d th o s e claim in g u n d e r it . . . . P r o v id e d , h o w e v e r, th a t, if th e re c o m m e n d a tio n b y w h ic h an a re a in c lu d in g S ta te -o w n e d la n d is in c o r p o ­ ra te d in th e w ild e rn e s s sy stem shall fail to p ro v id e fo r a c c e s s to th e S ta te -o w n e d land th e re in , th e n th e o w n in g S ta te m ay, at its e le c tio n , use th e in c lu d e d S ta te lan d as b ase in m a k in g in d e m n ity se le c tio n o f la n d s, in c lu d in g th e m in eral rig h ts th e re in as p ro v id e d in a p p lic a b le U .S. s ta tu te s. 107 C o n g . R e c . 18,103 (1961). T h e re s o lu tio n illu stra te s th a t th e C o m m issio n ers also b e lie v e d ac cess c o u ld b e d e n ie d . T h e in d e m n ity s ta tu te s to w h ic h th e re so lu tio n refers, 43 U .S .C . 851, 852, a llo w states to m a k e in d e m n ity s e le c tio n s w h e n e v e r sc h o o l s e c tio n s a re lost b e c a u se o f o th e r re s e rv a tio n s o r g ra n ts o f th e land. 50 access to State school sections or other lands. This should certainly be done or alternatively, the States should be permitted to choose Federal lands in another location in lieu of the land isolated within wilderness areas.” Id. The choice referred to by Senator Bennett was the choice of lands if access were denied, not the choice of either access or exchange. He stated that the purpose of his amendment was to “give the States access to State lands within wilderness areas established under the bill, or indemnify the States for loss of such access.” 107 Cong. Rec. 18,103 (1961). He did not indicate that a state could choose between access and indemnity. His amendment provided in part: In any case where State-owned land is completely sur­ rounded by lands incorporated into the wilderness system such State shall be given (1) such rights as may be neces­ sary to assure adequate access to such State-owned land by such State and its successors in interest, or (2) land in the same State, not exceeding the value of the surrounded land, in exchange for the surrounded land. Exchanges of land under the provisions of this subsection shall be ac­ complished in the manner provided for the exchange of lands in national forests. 107 Cong. Rec. 18,103 (1961). In urging support of his amendment, Senator Bennett explained:45 [T]he Western Association of State Land Commissioners unanimously adopted a resolution calling for indemnifica­ tion to the States which will lose access to State lands in wilderness areas established under S. 174. Where State school sections or other State lands are isolated by wilder­ ness areas, the State should be given an opportunity, if access is denied, to make in lieu selections of Federal lands in other areas. Id. (emphasis added).46 These statements demonstrate that Senator Bennett believed that access not consistent with wilderness preservation could be denied, and wanted to give states an alternative in such circumstances. The Senator later explained that his amendment was designed to correct problems states had experienced with land exchanges in the past. 107 Cong. Rec. 18,105 (1961). He wanted to ensure that if the state land was “locked up,” the state clearly would be entitled to an exchange. He further explained: 45 A u th o rity to e x c h a n g e land is p ro v id e d by 16 U .S .C . § § 4 8 5 , 486 (o rig in a lly e n a c te d as A c t o f M ar. 20, 1922, c h . 105, 42 S tat. 465) an d 16 U .S .C . § 516 (o rig in a lly e n a c te d as A c t o f M ar. 3, 1925, ch . 473, 43 S tat. 1215). 46 H is b e lie f th a t a c cess to sta te -o w n e d lan d s m a y be d e n ie d e n tire ly m a y resu lt in p a rt fro m th e la n g u a g e o f § 4 (c ) , 16 U .S .C . § 1133(c), w h ic h s p ecifically p ro te c te d o n ly ex istin g priva te rig h ts. H e m a d e n o s ta te m e n ts re ly in g on th is la n g u ag e, h o w e v e r. 51 The first choice, providing that the State shall have adequate access, would in fact defeat the value o f the wilderness bill, assuming there were a very valuable mineral in a State school section, and the State were to decide that it was worth money to drive a road through the wilderness to get to it. This would change the situation with respect to existing law, because we would be imposing particular restrictions, in spirit at least, with respect to access to the land. Id. (emphasis added). Because of misunderstandings regarding the effect of the proposed amendment on mineral lands, Senator Bennett withdrew the amend­ ment to allow time to confer with other Senators from western states. He re-offered the amendment the following day, with minor changes not relevant here. 107 Cong. Rec. 18,384 (1961). Senator Church, who earlier had expressed reservations about the amendment, now voiced his support. In his brief remarks, he stated: I think the amendment is fair to the States involved. If they need rights of access, they should have them; if they want to relinquish the land, they ought to have the right to acquire other land of comparable value. Id. Although we can infer from these remarks an understanding that the section gives states the option of choosing access or exchange, the statement does admit of other interpretations. In light of the evidence to the contrary, the resolution of this question cannot be rested on the remarks of one senator during debate on the Senate floor, where “the choice of words . . . is not always accurate or exact.” In re Carlson, 292 F. Supp. 778, 783 (C.D. Cal. 1968), citing United States v. Internat'l Union UAW-CIO, 352 U.S. 567, 585-86 (1957). If the Congress had intended to grant landowners a right to adequate access, it could have done so expressly. Resolving the doubt in favor of the grantee of such a right would violate the well-established rule that any doubts as to congressional grants of property interests must be resolved in favor of the government. Andrus v. Charleston Stone Prod. Co., 436 U.S. 604, 617 (1978); United States v. Union Pac. R.R., 353 U.S. 112, 116 (1957). The Senate agreed to Senator Bennett’s amendment to S. 174, but S. 174 did not pass the House during the 87th Congress. A House version of the bill did include a similar provision, also applicable only to state-owned land. The House report on this bill indicated that the section required only that a state be given either access or exchange; it did not indicate that the state could choose between them, or that adequate access otherwise was guaranteed. It stated: If surrounded land is owned by a State, the State would be given either right of access or opportunity of exchange. 52 . . . Ingress and egress would be provided for all valid occupancies. H.R. Rep. No. 2521, 87th Cong., 2d Sess. 108 (1962) (emphasis added). Variations of Senator Bennett’s amendment appeared in both the Senate and House versions of the wilderness legislation in the 88th Congress. S. 4, 88th Cong., 1st Sess. § 3(j) (1963); H.R. 9070, 88th Cong., 2d Sess. § 6(a) (1964). The Senate committee report on S. 4 indicates that the understanding that states could be denied access and offered a land exchange as indemnity remained unchanged: Section 3(j) provides that where State inholdings exist in wilderness areas, the State shall be afforded access, or shall be given Federal lands in exchange of equal value. The amendment is an attempt to clarify the intention of the Senate in regard to section 3(j), which was originally proposed, withdrawn, revised, again proposed and adopted during floor consideration of S. 174 in 1962 [sic]. The amended section represents a more deliberate and careful drafting and consideration. S. Rep. No. 109, 88th Cong., 1st Sess. 10, 21 (1963). The House modified this section to include “privately owned land” in the first paragraph regarding “adequate access,” rather than in the second paragraph regarding “ingress and egress.” This modification is not explained in the House report. See H.R. Rep. No. 1538, 88th Cong., 2d Sess. 13 (1963). The change was discussed in both the Senate and House hearings, however. The sentiment expressed was that private owners should have the same rights as the States. National Wilderness Preservation Act: Hearings on H.R. 9070, H.R. 9162, S. 4 and Related Bills, Before the Subcomm. on Public Lands o f the House Comm, on Interior and Insular Affairs, 88th Cong., 2d Sess. 1369-72 (1963). Both public witnesses and congressmen stated that ingress and egress was uncertain under both 16 U.S.C. §478 and the wilderness acts, and that the same provision for exchange should be made for private owners as was made for States. Id. There is no indication that this addition of privately owned lands modified the purpose of the section as identified by Senator Bennett. In sum, if uses are well-established prior to wilderness designation, they may be permitted to continue.47 In addition, all existing private 47 S ectio n 4(d)(1) o f th e A c t, 16 U .S .C . § 1133(d)(1), p ro v id e s th a t th e “ use o f a irc ra ft o r m o to r ­ b o ats, w h e re th e se uses h av e a lre a d y b e c o m e esta b lish e d , m ay be p e rm itte d to c o n tin u e su b je c t to su ch re stric tio n s as th e S e c re ta ry o f A g ric u ltu re d ee m s d e s ira b le .” T h e c o m m itte e re p o rts rev ea l an in ten t th a t o th e r w ell-estab lish ed uses also be p e rm itte d to c o n tin u e . See. e.g.. S. R ep . N o . 109, 88 th C o n g ., 1st Sess. 2, 10 (1963). See also 109 C o n g . R ec. 5926 (1963) ( S e n a to r C h u r c h , a sp o n so r o f th e bill, ex p ressed th e v ie w th a t o w n e rs o f ra n c h e s be a llo w e d to c o n tin u e “ th e c u s to m a ry u sag e o f th e ir p r o p e rty fo r in g re ss an d e g ress a c c o r d in g to th e c u s to m a ry w a y s ” ). 53 rights of access are preserved. Even if the landowner has no prior existing right to access not consistent with wilderness uses, the Wilder­ ness Act requires that “adequate access” be given or that an offer be made to the landowner to exchange the land for federal land of ap­ proximately equal value. As a result of § 5(a), therefore, the inholder actually may possess more access “rights” than were possessed prior to wilderness designation. If the landowner rejects an offer of land ex­ change, he may retain title to the inholding and exercise access rights consistent with wilderness uses, or he may consent to acquisition of his land by the federal government. These responses to the questions you have asked should provide satisfactory guidance in your performance of your federal land manage­ ment responsibilities. Sincerely, B e n ja m in 54 R. C iv ile tti

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Amendment of the Farmers Home Administration Disaster Loan Program U n d er applicable provisions o f th e A dm inistrative P ro ced u re Act, am endm ents to regula­ tions gov ern in g the disaster lo a n program adm inistered b y the Farm ers H om e A dm inis­ tratio n (F m H A ) can be m ade effective im m ediately, w ithout giving the public a prior o p p o rtu n ity to com m ent, if th e F m H A finds for “g o o d cause” th at notice and public p ro c ed u re thereon would be “ im practicable, unnecessary, or con trary to the public in terest.” It is fo r th e rulem aking agency to determ ine w h e th er th ere is “good cause” for dispensing w ith notice and comm ent; h o w e v er, if the facts are such that the authorized adm inistra­ tiv e purpose w ould be frustrated by delay, th e argum ent for proceeding expeditiously is reasonable on its face. April 24, 1981 - M EM ORANDUM O P IN IO N FO R T H E CO UN SEL TO T H E D IR E C T O R , O FFIC E O F M A N A G EM EN T A N D BU D G ET You have requested the views of this Office on a procedural question that involves regulations that govern the disaster loan program adminis­ tered by the Farmers Hom e Administration (FmHA). The question is w hether the Fm H A can amend these regulations and make the amend­ ment effective immediately, without giving the public an opportunity to comm ent on the amendment beforehand. T he relevant facts, as we understand them, are as follows: The disaster loan program is governed by Title III of the Consolidated Farm and Rural Development Act, as amended (the Act), 7 U.S.C. §§ 1961-1996. The Act authorizes the Secretary of Agriculture to make and insure loans for persons whose agricultural operations have been “substantially affected” by natural disaster. 7 U.S.C. § 1961(b). It also gives the Secretary broad authority to make regulations that prescribe the terms and conditions under which those loans will be made and insured. See 7 U.S.C. § 1989. Relying upon that general authority, the Fm H A has promulgated elaborate regulations that establish eligibility standards, loan criteria, and loan application procedures. See 45 Fed. Reg. 9848 (1980). The Fm H A is now considering various amendments to these regulations, and the question has arisen whether these amend­ ments can be made effective for loan applications arising from disasters that occurred in the 1980 crop year. With the advent of the new planting season, the 1980 applications are being filed and granted at a 104 rapid rate, and the process will be complete in a few weeks. The amendments now under consideration cannot substantially affect that process unless they are made effective immediately. The Act itself does not require the agency to follow any particular procedure in making or amending the regulations that govern the loan program. The relevant provisions of this Administrative Procedure Act (APA), which establish a generic “notice and comment” procedure for informal agency rulemaking, do not apply of their own force to matters relating to agency “loans.” 5 U.S.C. § 553(a)(2). The Secretary of Agriculture, however, has adopted the APA procedure and has made it applicable to all USDA loans. In a memorandum published in July, 1971, the Secretary announced the following policy: The public participation requirements prescribed by 5 U.S.C. § 553(b) and (c) will be followed by all agencies of the Departm ent in rule making relating to . . . loans . . . . The exemptions permitted from such requirements where an agency finds for good cause that compliance would be impracticable, unnecessary, or contrary to the public in­ terest will be used sparingly, that is, only when there is a substantial basis therefor. Where such a finding is made, the finding and a statement of the reasons therefore [sic] will be published with the rule. 36 Fed. Reg. 13,804 (1971).1 To our knowledge, this memorandum has never been modified or withdrawn. It has been treated by the courts as an agency rule, binding on the Fm HA while in force. See Berends v. Butz, 357 F. Supp. 143 (D. Minn. 1973). The 1971 memorandum makes reference to the statutory exemption that permits new agency rules to be effective without prior comment by the public. Under the APA, this exemption may be invoked if the agency finds, for “good cause,” that notice o f a proposed rule and public procedure thereon would be “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. §§ 553(b)(B), 553(d)(1). In accordance with the terms of the 1971 memorandum, the Fm HA may invoke the statutory exemption if it makes the required “good cause” finding and the finding is supported by a “substantial basis.” It is for the agency to determine whether the circumstances of the present case are such that the exemption to the notice and comment procedure should be invoked. The judgment whether notice and com­ ment is “impracticable, unnecessary, or contrary to the public interest” is judicially reviewable, see, e.g., Nader v. Sawhill, 514 F.2d 1064 (Temp. Emer. Ct. App. 1975); but at bottom it is a policy judgment, 1We note that the 1971 memorandum adopts the “ public participation” requirements o f § 553(b) and § 553(c) but does not by its terms adopt the 30-day publication requirement of § 553(d) 105 grounded in facts and in the agency’s view o f what the interests of the public require. W e note simply that if the amendments under consider­ ation here are authorized by the Act, and if the facts are such that the authorized administrative purpose would be frustrated if the effective date o f the amendments were delayed, the argument for proceeding expeditiously, on grounds o f practicality and public interest, is reason­ able on its face.2 T heodore B. O lson Assistant Attorney General Office o f Legal Counsel 2 W e would also observe that the Secretary of Agriculture is free at any time to revoke or render inapplicable to any particular rulemaking the policy established in 1971. Such revocation, in toto or as applied to a specific rulemaking, w ould, we believe, be dispositive of the question raised by the existence o f that policy. Such revocation should be done tn a public document at any point prior to issuance o f a final rule. See Nader v. Bork, 366 F. Supp. 104 (D .D .C. 1973). 106

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Senatorial Courtesy The custom known as “senatorial courtesy,” whereby certain nominations to federal office have been objected to by an individual senator on the ground that the person nominated is not acceptable to him, appears recently to have been limited to local offices of the federal government. May 29, 1942 MEMORANDUM OPINION FOR A UNITED STATES SENATOR* The custom known as “senatorial courtesy” is not a formal rule of the Senate, and is not included in the published rules of that body. The term is used to refer to a practice of long standing whereby certain nominations to federal office have been objected to by an individual senator on the ground that the person nominated is not acceptable to him. The question of whether this practice is in any sense justifiable or desirable is one which the Senate itself must decide. In this memorandum I am merely calling attention to relevant authorities and precedents, without attempting to state my own personal views on the desirability of the practice or, of course, attempting to advise the Senate. If it be conceded that the practice may in certain instances be justifiable and even desirable, in sound reason it would seem that the exercise of the practice should be limited to cases in which a senator makes objection to an individual who is a resident of the senator’s own state, and has been nominated for local federal office in that state. The argument is advanced, perhaps not without some merit, that the senator is in a position to report to his colleagues the views of his constituents as to the qualifications of the individual in question—an individual whose duties will bring him in intimate contact with the daily lives of those constituents. This argument would not seem to be applicable to positions of national importance, the duties of which are not limited to any one state. As to such a position, an individual senator would seem to be acting in his capacity as a member of the council of elder statesmen of the nation, rather than as a representative primarily of his own constituents. Expressions by distinguished members of the Senate in recent years have tended to be in accord with the view that senatorial courtesy should apply only to local offices, the duties of which are limited to the state of the objecting senator. For example, on March 23, 1932, Senator Watson said: Mr. WATSON. . . . [W]hen I came here I adopted the policy of voting against the confirmation of any man appointed to a Federal * Editor’s Note: This memorandum was conveyed under cover of a letter from Assistant Solicitor General Cox to Senator George L. Radcliffe of Maryland, stating as follows: “The Attorney General has asked me to prepare and send to you a memorandum on the custom known as ‘Senatorial Courtesy.’ I am herewith transmitting a copy of such a memorandum.” 88 Senatorial Courtesy position if and when a Senator from the State in which he lived rose in his place on the floor of the Senate and stated that the appointment was personally obnoxious and personally offensive to him. Originally that rule was followed without regard to the field of activity of the appointee; that is to say, if a man were appointed to office anywhere and a Senator rose to say the appointment was personally offensive, it was regarded as sufficient to cause rejection. But about 10 years ago there was a modification of the rule here, and I was one of those who led the fight to bring about the modification. .... Mr. NORRIS. The Senator does not mean to say there is a rule on that subject in the Senate? Mr. WATSON. No; I do not mean to say there is a rule; but there is a practice; if the Senator please, an unwritten rule. . . . It is a practice or custom that has been followed; so that where a man is appointed to serve wholly within the State represented by the Senator who makes the objection, in such a case his objection on such grounds is sufficient reason for rejection. 75 Cong. Rec. 6729. On March 23, 1934, the following colloquy between Senator Overton and Senator Barkley occurred: Mr. OVERTON. . . . Mr. President, let me make the additional statement that I understood that whenever a Senator from a State made an objection to the appointment of someone who was to discharge the duties of an office that was wholly intrastate, and based that objection upon the ground that the person named was personally obnoxious to him, the Senate respected that objection. . . . Mr. BARKLEY. . . . I realize that from time immemorial, where a Senator objects to a nomination or appointment of a citizen of his State to a local office, and states that the appointment is personally objectionable and obnoxious to him, the Senate heretofore, almost as a universal rule—which does not have the force of law, but is the result of courtesy—has respected that objection, and has refused to confirm the nominee. In recent years, I think it ought to be said, there has been some modification of that unwritten rule to the extent of asking or expecting the Senator who makes the objection on per- 89 Supplemental Opinions of the Office of Legal Counsel in Volume 1 sonal grounds to present some reason for the objection. Otherwise its arbitrary exercise would make it impossible for an Executive to appoint anybody in the State who could be confirmed. 78 Cong. Rec. 5251. Similarly, on June 29, 1939, Senator Wheeler said: In the 16 years I have been a Member of the Senate I have not known the Postmaster General of the United States to name appointees in a particular State over the objection of either one of the Senators. Perhaps it has been done; but, if so, it has never been called to my attention during my service in the Senate. . . . It has always been recognized that a different rule applies to appointments outside the State from that applying to appointments within the State. 84 Cong. Rec. 8225, 8226. Leading text writers, apparently without exception, have indicated that senatorial courtesy should be confined to local offices. To quote: “[T]hrough the development of what is known as the ‘courtesy of the Senate,’ the Senators from each state when they belong to the same political party as the President generally control the nominations to local offices of the national government within their own state.” John A. Fairlie, The National Administration of the United States of America 45–46 (1905). “The Constitution provides that appointments to federal office shall be made by the President with the advice and consent of the Senate. But in consequence of the custom known as ‘senatorial courtesy,’ when the President makes an appointment to a local federal office he is virtually obliged to obtain the consent of the senators from the particular state in which the office is located, if they belong to his party. Otherwise the Senate will not approve the appointment.” James Wilford Garner & Louise Irving Capen, Our Government: Its Nature, Structure, and Functions 263 (1938). “In late years, however, there has come into existence the custom known as ‘senatorial courtesy,’ according to which the President must obtain in advance the approval of the senators from the particular state in which an office to be filled is located, provided they belong to his political party. If he refuses to do so and nominates a 90 Senatorial Courtesy person who is objectionable to the senators from that state, the other senators as a matter of ‘courtesy’ to their offended colleagues will come to their rescue and refuse to approve the appointment. It has come to pass, therefore, that individual senators in many cases are virtually the choosers of federal officers in their states.” Id. at 333. “A class of important federal offices scattered among the states, though nominally filled by the President with the advice and consent of the Senate, is subject largely to the control of the latter, as a result of a time-honored practice known as ‘senatorial courtesy.’ Under its power to advise and consent, the Senate does not officially suggest names to the President, but it will ratify nominations to many offices only under certain conditions. If either one or both of the Senators from the state in which the offices under consideration are located belong to the President’s political party, then executive freedom of choice almost disappears.” Charles A. Beard, American Government and Politics 151 (8th ed. 1939). Haynes, in his Senate of the United States, has perhaps the most complete discussion of the subject. He cites a few instances in which attempts were made to apply the practice of senatorial courtesy to nominations to national offices, though it is clear that he does not approve of such application. He refers to the Rublee incident in 1916, and states that Senator La Follette, in challenging Senator Gallinger’s request for application of the practice, declared that “this was the first time since he had been in the Senate that the ‘personally obnoxious’ rule had been applied to a national appointment.” 2 George H. Haynes, The Senate of the United States: Its History and Practice 741 n.2 (1938). As the Rublee incident shows, individual senators have not at all times agreed upon the extent to which the practice should be applied. Senatorial courtesy is, after all, simply based on custom, the boundaries of which may change from time to time, and which can never be said to be subject to exact definition. If a senator wishes to do so, he may object to any nomination on whatever ground he sees fit. His colleagues in the Senate will then judge whether these objections should be given weight. The purpose of this memorandum is to point out that the views expressed in recent years by some of the leading members of the Senate and by text writers have tended in the direction of limiting the practice to local offices. Such examination of the actual precedents in the Senate as has been made in the limited time at my disposal appears to indicate that senators have from time to time attempted to invoke the practice of senatorial courtesy in respect of offices of national importance, and that in a few cases the Senate has in fact failed to confirm the nominee. In most, if not all, of these instances, however, it would appear that the Senate’s action was based on considerations independent of the objection so raised. In no case which has come to my attention—not even the Rublee case— 91 Supplemental Opinions of the Office of Legal Counsel in Volume 1 does it appear that such a nomination was rejected solely on the ground of senatorial courtesy. OSCAR S. COX Assistant Solicitor General 92

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Reconsideration of Applicability of the Davis-Bacon Act to the Veterans Administration’s Lease of Medical Facilities C o n tra ry to the v iew e x p re sse d in an e a rlie r o p in io n o f th e O ffice o f L egal C o u n se l, the p la in la n g u a g e o f the D a v is-B a c o n A ct d o e s not b a r its a p p lic a tio n to a lease c o n tra c t o n th e g ro u n d th a t such c o n tra c ts are p e r s e not c o n tra c ts fo r c o n stru ctio n . T h e a p p lic a b ility o f the D a v is-B a c o n A c t to any sp e c ific lease c o n tra c t c an b e d e te rm in e d o n ly by c o n sid e rin g the d e ta ils o f the p a rtic u la r c o n tra c t. M ay 23, 1994 M e m o r a n d u m O p i n i o n f o r t h e S o l ic it o r D epa r tm en t o f L abo r and T h e G eneral C o unsel D e p a r t m e n t o f V e t e r a n s A f f a ir s At the request of the Attorney General, we have reviewed the principles and reasoning of a 1988 Office of Legal Counsel opinion concluding that the DavisBacon Act did not cover a contract entered into by the Veterans Administration (now Department of Veterans Affairs) (“VA”) for the long-term lease and con­ struction of a building to be used as an outpatient clinic. Applicability o f the Davis-Bacon A ct to the Veterans Adm inistration’s Lease o f M edical Facilities, 12 Op. O.L.C. 89 (1988) (“ 1988 O.L.C. Opinion,” or “ 1988 Opinion”). We have concluded that the 1988 Opinion erred in concluding that the plain language of the Davis-Bacon Act bars its application to any lease contract, whether or not the lease contract also calls for construction of a public work or public building. We believe that the applicability of the Davis-Bacon Act to any specific lease contract can be determined only by considering the facts of the particular contract. I. The 1988 O.L.C. opinion arose out of a dispute between the VA and the De­ partment of Labor. The VA had entered into a contract (the “Crown Point con­ tract”) with a developer for the long-term lease of space for use as a VA health clinic, in a building that the developer would build to house the clinic. In re Appli­ cability o f Davis-Bacon Act to Lease o f Space fo r Outpatient Clinic, Crown Point, Indiana, WAB Case No. 86-33, 1987 WL 247049, at 2 (W.A.B. June 26, 1987) (“ 1987 WAB Opinion”). The dispute concerned whether the contract was covered by the Davis-Bacon Act. That Act applies to every contract in excess of $2,000 to which the United States or the District of Columbia is a party, for construction, alteration, and/or 109 O pinions o f the O ffice o f L egal C ounsel repair, including painting and decorating, of public buildings or public works . . . . 40 U.S.C. § 276a(a). The Act provides that such contracts shall include provisions that mechanics and laborers employed on these projects be paid prevailing wages to be determined by the Secretary o f Labor. Id. Although the Crown Point contract called for the lease of clinic space, it also included numerous provisions requiring that the building be constructed according to VA specifications, on a VA timetable, and subject to VA inspection. 1987 WAB Opinion at 4-5. Nonethe­ less, the VA had concluded that the Act did not apply to the Crown Point agree­ ment because it was a lease and, in the VA’s view, a lease is not a “contract. . . for construction” under the Act. Therefore, the contract contained no provisions man­ dating compliance with the prevailing wage requirements of the Davis-Bacon Act. Upon learning of VA’s plans, the Building and Construction Trades Department of the AFL-CIO requested a ruling from the Wage and Hour Administrator of the Department of Labor that the construction of the building was covered by the Davis-Bacon Act. The Administrator, applying the Wage Appeals Board’s (“WAB”) analysis in a similar case, agreed that the contract should have included Davis-Bacon prevailing wage provisions. See 1987 WAB Opinion at 1-2 (noting Administrator’s reliance on In re M ilitary Housing, Ft. Drum, WAB Case No. 8516 (Aug. 23, 1985)). The VA appealed to the WAB, which upheld the Adminis­ trator’s action. Id. However, the VA continued to resist the Department of Labor’s interpretation of the Act. While the AFL-CIO sought a court judgment to compel the VA to comply with the W AB’s decision, the VA sought an opinion from the Attorney General that the WAB had misread the law. The result was a court determination that the WAB decision was a reasonable interpretation of ambiguous language in the Act under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), Building and Constr. Trades D e p ’t, AFL-CIO v. Turnage, 705 F. Supp. 5 (D.D.C. 1988), and an O.L.C. ruling that the WAB decision con­ flicted with the plain language of the Act (the 1988 Opinion). The Department of Justice did not appeal the Turnage case because of the confused procedural posture it presented, but instructed Labor to comply with the reasoning of the 1988 O.L.C. opinion in future cases. Letter for Jerry G. Thorn, Acting Solicitor, Department of Labor, from Douglas W. Kmiec, Assistant Attorney General, Office of Legal Counsel (Jan. 23, 1989). You have asked that we review our ruling in the 1988 Opinion that the plain language and legislative history of the Davis-Bacon Act indicate that the Act does not extend to leases. We have reviewed the prior opinion, solicited the views of affected executive departments, and conducted a thorough review of the legislative history, case law, and executive, judicial, and congressional interpretations of the Act. We have concluded that the portion of the 1988 Opinion that addressed the 110 Reconsideration o f A pplicability o f the D avis-B acon A ct lo the V eterans A dm inistration's Lease o f M edical F acilities meaning of the Davis-Bacon Act was incorrect. We do not, however, address the question whether the particular contract at issue in that case was a contract for con­ struction of a public work within the meaning of the Davis-Bacon Act, because the decision not to appeal the ruling in the Turnage case has mooted the point. Nev­ ertheless, we can say that the fact that a contract is a lease is not the sole determi­ native factor in deciding whether that contract is also a contract for construction within the meaning of the Davis-Bacon Act. II. The 1988 OLC Opinion concluded that a lease-construction contract for a Vet­ erans Administration outpatient clinic was not a contract for construction of a pub­ lic building or public work within the meaning of the Davis-Bacon Act, because the plain meaning of the term “contract . . . for construction” could not be read to include a lease, even one that contemplated, and resulted in, the construction of a building for long-term public use. We do not think the question is so simple. The words “contract . . . for con­ struction . . . of public buildings or public works” do not plainly and precisely indi­ cate that a contract must include provisions dealing only with construction. Rather, the plain language would seem to require only that there be a contract, and that one of the things required by that contract be construction of a public work. This inter­ pretation of the Act is supported not only by its language, but also by the legisla­ tive history, by reference to the goals of the Act, by judicial and executive interpretation of the Act, and by the interpretation of similar language in related Acts. A. Since the 1988 Opinion rested on its reading of the plain language of the Act, we begin by setting forth that language. The Act provides that [t]he advertised specifications for every contract in excess of $2,000, to which the United States or the District of Columbia is a party, for construction, alteration, and/or repair, including painting and decorating, of public buildings or public works of the United States or the District of Columbia . . . which requires or involves the employment of mechanics and/or laborers shall contain a provision stating the minimum wages to be paid various classes of laborers and mechanics which shall be based upon the wages that will be determined by the Secretary of Labor to be prevailing for the corre­ sponding classes of laborers and mechanics employed on projects of 111 O pinions o f the O ffice o f L egal C ounsel a character similar to the contract work in the [area where] the work is to be performed . . . . 40 U.S.C. § 276a(a).' The 1988 Opinion concluded that this language “plainly and precisely” limited the A ct’s coverage to “construction contracts,” and thus could not be read to include a lease. 1988 Opinion at 93-94.2 While this may be true so far as it goes, we do not think the term “construction contract” sheds much light on the meaning of the more elaborate statutory term “contract . . . for construction, alteration, and/or repair, including painting and decorating.” In particular, we do not think the term “construction contract,” any more than the term “contract . . . for 1 A n e arlier v ersion o f the A ct provided for c o v erag e o f e v ery c o n tra c t in excess o f $5,000 in am o u n t, to w hich the U nited S tates or the D istrict of C o ­ lu m b ia is a party, w hich requires or in v o lv e s the em p lo y m ent o f laborers or m echanics in the c o n stru ctio n , alteration, an d /o r repair o f a n y public b u ild in g s o f the U nited Slates. D avis-B aco n A ct, ch . 4 1 1 , § 1, 4 6 Stat. 1494, 1494 (1931) S e e A rm and J Thieblot, Jr., P revailing Wage L e gislatio n . The D a v is-B a c o n Act, State "L ittle D avis-B acon ” A cts, the W alsh-H ealey Act, a nd the Service C o ntract A c t 31 (1 9 8 6 ) ( “T h ieb lo t”) T he A ct w as rev ised in 1935 to add coverage o f public w orks and o f p a in tin g and decorating contracts, to low er the c o n tra c t th resh o ld from $5,000 to $ 2 ,0 0 0 (to reflect the relatively sm all dollar value o f p ainting and decoratin g c o n tracts), to p ro v id e for predeterm ination o f w age rates by the D epartm ent o f Labor, and to provide fo r re m e d ie s fo r w orkers not paid the p ro p e r rates on covered contracts See S. R ep No. 74-1155 (1935), H R R ep N o. 7 4 -1 7 5 6 (1935); T h ieb lo t at 3, 28, 2 9 (discussing purpose o f A ct); id at 32-34 (discussin g 1935 am en d m en ts) T here is no suggestion in the legislative history that the sw itch from “c o n tract . w h ich requires o r involves the em p lo y m en t o f laborers or m echanics in . construction” to the current lan g u ag e o f “co n tract . . . fo r construction . . . w hich requires o r involves the em ploym ent o f me­ chanics an d /o r la b o re rs” w as intended to have an y narrow ing effect See, e.g , S R ep No. 1155; H R Rep No. 7 4 -1 7 5 6 T he A ct w as m o d ified again in 1964 to include fringe benefits in the calculation of prevailing w ages S ee S R ep. N o 88-963 (1964), rep rin ted in 1964 U .S .C C A N 2339; T hieblot at 34. T h e 7 4 th C o n g re ss — the sam e one that a m e n d ed the D avis-B acon A ct to include the language at issue here (A ct o f A ug. 30, 1935, ch 825, § I, 49 S tat 1011) — also passed the closely related M iller Act, 40 U S C § 2 7 0 a (A ct o f A ug 24, 1935, ch. 642, § 1, 49 Stat. 7 93). The M iller Act provides lhat contractors shall furnish b o n d s on “ any con tract, exceeding $25,000 in am ount, for the construction, alteration, or repair o f any p u b lic b u ild in g o r public w ork ” The lan g u ag e o f the M iller Act is a lm ost identical to that used in the 1935 am en d m en ts lo ihe D av is-B aco n Act th en being co n sid ered , and the M iller A ct originally included the sam e $ 2 ,0 0 0 th resh o ld as the 1935 D avis-B acon A ct T h ieb lo t at 37 n 40 , U niversities Research A s s 'n v. Coutit, 4 5 0 U .S 7 5 4 ,7 5 8 -5 9 (1981). See a lso S Rep No. 74-1155, at 4 , H.R Rep N o 74-1756, at 4, 5 (noting relatio n b e tw ee n D av is-B aco n am endm ents and the H eard Act (w hich the M iller Act replaced)) T h e n early identical language o f the M iller A c t has been applied lo c onstruction even o f public w orks that w ould be p riv ately ow ned, see, e g . U nited S ta tes ex rel N o land C o v Irw in, 316 U S 23 (1942) (construction o f H ow ard U niversity library), a n d to the relocation o f a privately-ow ned railroad that w ould be flooded by a federal d am , P eterso n v. United S ta te s , 119 F.2d 145 (6th C ir 1941) T hese cases focused on w hether the co n stru ctio n in q u estio n was o f a public w ork; ihere seem s to have been no challenge on the basis th a i the c o n tracts w ere not for construction The one difference in language betw een the M iller and D avis-B aco n A cts — lhat the Davis-Bacon A c t refers to c o n tracts “to w hich the U nited Stales or ihe D istrict o f C o lu m b ia is a p a rty ,” 4 0 U S C. § 276a(a), w hile the M iller A ct does not, see 4 0 U.S C § 270a(a) — is not sig n ific a n t in th is setting, since the U nited States is undeniably a party to the contract to build and lease the C row n Poini facility; the d ifficulty is tn d eterm in in g w hat sort o f contract that contract is. ■ T h e 1988 O p in io n does not indicate w here the new term “construction contracts” com es from. It is not a technical term d ra w n from case law interpreting the D avis-B acon A ct, or used elsew here as a m eans of explainin g w h at the A ct covers o r does not c o v e r R ather, it appears to be an im provised shorthand for the m ore ela b o ra te statu to ry language. We can see no ju stificatio n for using a shorthand phrase neither endorsed by C o n g re ss n or ex p la in ed in ihe case law to b u ttress a narrow reading o f the statutory language 112 Reconsideration o f A pplicability o f the D avis-B acon A ct to the Veterans A dm inistration s Lease o f M edical F acilities construction,” unambiguously excludes a contract for the long-term lease of a building to be constructed to comply with the contract, especially when the con­ tracting agency contemplates the construction of a new building and includes sub­ stantial provisions concerning construction in the contract. Even prominent critics of the Act have conceded as much. See, e.g., Thieblot at 39 n.50 (“In some cir­ cumstances, privately financed construction may be subject to prevailing wage requirements if, for example, the facilities are specially constructed with the inten­ tion of leasing them to government occupants.”). To rule otherwise would leave substantial room for agencies to evade the requirements of the Act by contracting for long-term lease rather than outright ownership of public buildings and public works. The Crown Point lease provides a good illustration of the principle that a lease may look very much like a “contract . . . for construction.”3 According to the 1987 WAB Opinion, the Solicitation for Offer “specifically provides for lease of a building to be ‘constructed in accordance with VA specifications.’” Id. at 3. The requirements under the Solicitation include “preliminary plans and specifica­ tions; other working drawings; issuance of a building permit; completed construc­ tion documents; start of construction; completion of principal categories of work; phase completion; and final construction completion;” along with “name and expe­ rience of the proposed construction contractor,” and “evidence of award of the construction contract within 15 days of award.” Id. Under the terms of the Solici­ tation, the winning bidder would be required to submit construction progress re­ ports to the VA and to allow the VA to inspect the site. Id. All of these requirements indicate that while the contract was labeled a lease, it called for the construction of a building, at least as one expected means of satisfying the terms of the contract. To say that the contract is not “for construction” ignores what the contract itself says. In short, to regard all lease-construction contracts as outside the scope of the Davis-Bacon Act is contrary to the plain language of the Act: many such leases are in fact contracts that call for the construction of a public work. The difficulty is in determining whether a particular lease is really a contract for construction of a public building or public work, or just a contract to secure the use of private prem­ ises on a temporary basis. “Plain language” is of little use in policing this border­ line. 1 T here can be no question that a lease is a contract, obliging each party to take certain actions S e e 1 A rthur Linton C orbin, C orbin on C o m m its Sfc 1 2-1 3 (rev ed , Joseph M Penllo, ed , 1993) (defining “ legal oblig atio n ” and “contract,” respectively); A la ska v. U nited States', 16 Cl Ct. 5 (1988) (docum ent need no t be labeled a contract to be a contract) The real question is w hether such a contract is “ for construction.'* 113 Opinions o f th e Office o f L egal C ounsel B. The legislative history and the purposes of the Act strongly support this inter­ pretation as well. The Act was passed in 1931, and amended in 1935, to ensure that contractors bidding on public works projects would not lower wages so as to be sure to make the lowest bid; and to permit government agencies, which were required to accept the lowest bids, to employ contractors who paid a “fair” wage rather than those who competed by reducing wage rates. S. Rep. No. 74-1155, (1935); H.R. Rep. No. 74-1756 (1935); S. Rep. No. 71-1445, at 1-2 (1931); H.R. Rep. No. 71-2453, at 1-2 (1931 );4 see also 74 Cong. Rec. 6505 (1931) (remarks of Rep. Welch). The sponsor, Representative Bacon, justified the bill by stating that the “Government must not be put in the position of helping to demoralize the local labor market.”5 The Davis-Bacon Act was passed during the Depression, when federal con­ struction accounted for a large portion of construction overall6 and workers des­ perate to take any job could be hired at wages far below those available in the past.7 The result was a concern that the federal public works program would not achieve its desired effect of assisting local communities in regaining prosperity, but instead would allow contractors — and indeed the government itself — to exploit 4 T h e se rep o rts staled that T h e F ederal G o v e rn m e n t has entered u p o n an extensive public bu ild in g program . intended [in part] . . to b en efit the U nited States at larg e through d istrib ution o f construction throughout the co m m u n ities o f the co u n try without fav o rin g any p articu lar section T h e Federal G o v ern m en t m ust, under th e law, aw ard its co n tracts to the low est responsible bid ­ d e r T h is has p rev en ted representatives o f the d ep artm en ts involved from requiring successful b idders to pay w ages to their employees com parable to the w ages paid for sim ilar labor by pri­ vate in d u stry in the v icin ity o f the b u ild in g projects un d er construction. [SJom e successful b id d ers have selfish ly im ported labor fro m distant localities and have exploited this labor at w ag es far b elow local w age rates T h is practice, w hich the Federal G overnm ent is now pow erless to stop, has resulted in a very u n ­ h ealth y situ atio n . Local artisans and m echanics, m any o f w hom are fam ily m en . . can not hope to co m p ete w ith this m igratory labor N o t only are local w orkm en affected, but qualified c o n ­ tra c to rs resid in g and d o in g business in th e section o f the co untry to w hich Federal buildings are a llo cated find it im possible to compete w ith the o u tsid e co n tractors, w ho base th eir estim ates for lab o r upon the low w ages they can pay to unattached, m igratory w orkm en . . . . S R ep. No. 7 1 -1 4 4 5 , at 1-2; H .R. Rep No. 7 1 -2 4 5 3 , at 1-2. 5 74 C o n g R ec. 6 5 1 0 (1 9 3 1 ). See also S. R ep No. 74 -1 1 5 5 , at 1-2, H .R Rep. N o. 74-1756, at 1 (both stating that the a m en d m en ts w ere needed to m ake the A ct m ore enforceable, because “ unscrupulous con­ tractors have taken ad v an tag e o f the w ide-spread unem ploym ent am ong the buildings crafts to exploit labor and to d ep riv e em p lo y ees o f the w ages to w h ich they w ere en titled under the law ’’); S. Rep. No. 88-963, at 1, 2 (1 9 6 4 ), r ep rin te d mi 1964 U S C C.A N 2 3 3 9 , 2340 (rev iew in g the purposes of the A ct), T hieb lo t at 3, 28, 29, 32-34 (rev ie w in g the p u rposes o f this and related acts and d iscussing the 1935 am endm ents). 6 See, e.g ., T h ieb lo t at 29, 29 n. 18 (betw een 1929 and 1933, pu blic construction rose from less than oneq u a rte r to m ore than o n e -h a lf o f all construction nationw ide); S Rep. No. 71-1445, at I (1931) (federal go vern m en t h a s em b a rk e d on new , large-scale public w orks co n stru ctio n program ); H R R ep N o. 71-2453, at 1 (1 9 3 1 ) (sa m e), 74 C ong. R ec 6 5 11 (1931) (rem arks o f Rep. B acon) (sam e). 7 See, e g , T h ieb lo t at 28 (indicating th a t average con stru ction w ages had fallen to h a lf their preD epression rates by 1931); 74 C ong Rec 6 5 1 0 (1931) (rem ark s o f Rep. Johnson hypothesizing w age reduc­ tion fro m $4 to $2 75 p er d ay ) 114 Reconsideration o f A pplicability o f the D avis-B acon A ct to the Veterans A dm inistration's Lease o f M edical F acilities desperate laborers, in some cases imported from other parts of the country.8 While Congress was presented with evidence that the loss of jobs to outsiders was rare, see 74 Cong. Rec. at 6506 (chart noting origins of workers on public building proj­ ects), the evidence before Congress also showed that it did occur. Representative Bacon, for example, who sponsored the bill in the House, saw a contract for a Vet­ erans’ Bureau hospital in his district go to an outside contractor who employed laborers from Alabama, “huddled in shacks living under most wretched conditions and being paid wages far below the standard,” 74 Cong. Rec. at 6510 (statement of Rep. LaGuardia). Meanwhile, unemployed workers in Representative Bacon’s own community apparently remained jobless, unable or unwilling to compete for jobs with those willing to accept the substandard conditions. This view of the purposes of the Act — that government should not act to de­ press labor conditions, but should ensure that government and government con­ tractors employ workers at fair wages — continues to prevail. See, e.g., Walsh v. Schlecht, 429 U.S. 401, 411 (1977) (Davis-Bacon protects workers, not contrac­ tors, setting a floor but not a ceiling for wage rates); United States v. Binghamton Constr. Co., 347 U.S. 171, 177 (1954) (same), Unity Bank <& Trust Co. v. United States, 756 F.2d 870, 873 (Fed. Cir. 1985) (same); Building and Constr. Trades D e p ’t, AFL-CIO v. Donovan, 712 F.2d 611, 613-14, 620-21 (D.C. Cir. 1983) (noting that Davis-Bacon was designed to counteract the potential effect of the government’s low-bid requirement on wages), cert, denied, 464 U.S. 1069 (1984).9 In view of these purposes, we believe that the device of lease-construction, at least to the extent that it is used to build public works outside the prevailing wage sys­ tem, lies well within the contours of the Act. Whether the government construction is paid for upfront or by means of a long-term lease is of no significance to workers 8 See. e g , S Rep No. 7 4 -1 155, at 2, H.R Rep No. 71-2453, at 2, 74 C ong Rec at 6510 Som e com m entators have suggested that the purposes o f ihe Act w ere not al! benign and lhat som e o f ihe concern about outside labor m ay have been based on the fact that som e o f the new com petition for jo b s cam e from black w orkers See T hieblot at 30, David E Bernstein, Roots o f the ‘U n d e rc la ss’ The D ecline o j L aissez-F aire Jurispru d en ce a n d the R ise o f Racist L a b o r L e g isla tio n, 43 Am. U L Rev 85, 1 14-16 (1993) (arguing that D avis-B acon reinforced labor u nions’ discrim ination a g ain st black w orkers by elim inating nonunion w ork­ e rs ’ ability lo com pete by offering to work for low er w ages), 74 C ong. Rec at 6513 (rem arks o f Rep. A ll­ good). Indeed, ihe contract to build the V eterans' hospital in R epresentative B ac o n 's d istrict w ent lo an A labam a co n tracto r w ho b rought black laborers to Long Island to build the project B ernstein at 114, see also 74 C ong Rec. at 6513 (rem arks o f Rep A llgood, apparently concerning the project in R ep. B aco n ’s district) O th er C ongressm en, how ever, w ithout discussing the race o f the w orkers involved, argued that the im ported w orkers were being exploited by the substandard w age rates and w orking conditions. See, e.g , 74 C ong. Rec at 6 5 1 0 (rem arks o f Rep L aG uardia concerning the situation in Rep B aco n 's district) 9 See also T hieblot at 122-23 (quoting D avis-B acon W orks a n d W orks W ellr: A n Interview w ith Jorm er U.S. L a b o r S ecreta ry Ray M arshall, 3 B uilders Special Rep (M arch 7, 1981), in turn quoting Secretary M arshall as staling lhat ‘‘[i]he basic rationale for ihe D avis-B acon law is really quite sim ple It is based on the idea that the federal governm ent should not use ta x p a y ers’ m oney to undercut local area em ploym ent conditions [I]f the federal governm ent perm itted its construction dollars lo be used [in this way to] undercut prevailing pay standards[, w]e w ould be helping to drive dow n w ages in any com m unity in which such federal o r federally-assisted construction was taking place . ") 115 Opinions o f the Office o f Legal C ounsel who must take lower pay or to local contractors forced to compete by cutting labor costs. The effect on them is the same. While the public generally has an undeniable interest in paying as little as pos­ sible for the construction of public works, the purpose of the Davis-Bacon Act was precisely to subordinate that interest to the extent necessary to set minimum wage standards for such construction work. If an agency decides to construct a public work — not just acquire a privately-owned building — that agency cannot evade the purposes of this country’s labor laws by clever drafting. This does not mean that construction related to any lease is “construction, alteration and/or repair” of a public work within the meaning of the Act — but neither can the “plain language” of the Act be read as declaring that a 99-year lease of a brand new building that would never otherwise have been built is not the construction of a public work. The answer in any particular case will depend on the facts. C. The Department of Labor’s longstanding interpretation of the Davis-Bacon Act is designed to counteract just such evasion, and the views of the courts, Comptrol­ lers General, and Attorneys General, with few exceptions, support this interpreta­ tion of the Act. The Department of Labor consistently has taken the position that a contract is a contract for construction within the meaning of the Davis-Bacon Act “if more than an incidental amount of construction-type activity is involved in the performance of a government contract.” 1987 WAB Opinion at 2 (quoting In re Military Housing, Ft. Drum, WAB Case No. 85-16, at 4 (Aug. 23, 1985)). Similarly, the Federal Acquisition Regulations instruct agencies that Davis-Bacon wage rates should be included in nonconstruction contracts involving some construction work when “[t]he contract contains specific requirements for a substantial amount of construction work,” 48 C.F.R. § 22.402(b)(ii) (1994), which is “physically or functionally separate from, and is capable of being performed on a segregated basis from, the other work required by the contract,” 48 C.F.R. § 22.402(b)(iii). See also 29 C.F.R. § 4 .1 16(c)(2) (1994) (providing that Davis-Bacon wage rates shall apply in similar circumstances in contracts otherwise covered by the wage and hour provisions of the Service Contract Act). This interpretation has been approved by the Comptroller General. In re Fischer E n g’g & Maintenance Co., No. B-223359, 1986 WL 64093, at 2 (C.G. Sept. 16, 1986) (Davis-Bacon applies to lease-construction of military housing, so long as project is “clothed sufficiently with elements indicating that [it] indeed . . . serv[es] a public purpose”); In re D.E. Clarke, No. B-146824, 1975 WL 8417, at 1 (C.G. May 28, 1975) (contract is covered if it “essentially or substantially contem­ plates the performance of work described by the enumerated items”); 40 Comp. Gen. 565, 565, 567 (1961) (“[t]he test for determination of the applicability of the 116 R econsideration o f A pplicability o f the D avis-B acon A ct to the Veterans A dm inistration's Lease o f M edical Facilities Davis-Bacon Act . . . is not the nature of the specific work but the nature of the contract, that is, whether the contract essentially or substantially contemplates the performance of work described by the enumerated items ‘construction, alteration, and/or repair, including painting and decorating’”; applying this standard to a con­ tract ostensibly dealing with “maintenance,” the Comptroller General ultimately determined that the work required was in fact maintenance rather than construc­ tion); 34 Comp. Gen. 697 (1955) (lease-purchase agreements fall within the DavisBacon and related Acts); 10 Comp. Gen. 461 (1931) (Act applies to temporary housing and other buildings erected for use during construction of the Hoover Dam). The 1988 O.L.C. Opinion, however, relied heavily on a 1962 Comptroller Gen­ eral opinion at odds with the Comptroller’s other cases, without discussing the more recent cases. In that opinion, the Comptroller General argued that leases are never contracts for the construction of public works. 42 Comp. Gen. 47 (1962). The 1962 opinion addressed the concept of lease and lease-option contracts in the abstract, and concluded that such contracts are not Davis-Bacon contracts because “of the basic distinction which exists between the procurement of a right to use improvements, even though constructed for that particular usage, and the actual procurement of such improvements.” Id. at 49. The opinion asserted that “the mere fact that construction work is prerequisite to supplying a public need or use does not give such work a Davis-Bacon status.” Id. In rejecting such a sweeping interpretation of the Davis-Bacon Act, the Comptroller General unnecessarily sug­ gested that no leases are covered unless the government ultimately acquires title to the work. In contrast, the Attorney General had already determined that acquisi­ tion of title was not necessary to bring a contract within the Davis-Bacon Act, Wage Law Applicable to Alley Dwelling Authority fo r the District o f Columbia, 38 Op. Att’y Gen. 229, 233 (1935); and the courts had reached the same conclusion in construing the nearly identical language of the closely related Miller Act, e.g., United States ex rel. Noland Co. v. Irwin, 316 U.S. 23 (1942) (construction of Howard University library). In a later opinion, the Comptroller General emphatically rejected the 1962 opinion’s reading of the statute, approving instead the Department of Labor’s analysis of a particular lease-construction contract similar to the one involved in the 1988 O.L.C. Opinion. In re Fischer Eng’g & Maintenance Co., No. B223359, 1986 WL 64093 (C.G. Sept. 26, 1986). The Fischer Engineering case emphasized that the 1962 opinion had addressed the issue only in the abstract. Even were we to regard the decisions of the Comptroller General as controlling, which we do not, we think the reasoning of the more recent Fischer Engineering case is both more consistent with other Comptroller General opinions and more accurate in its reading of the Act, because it is more attentive to the underlying intent of the Act. 117 Opinions o f th e O ffice o f L egal C ounsel Similarly, the courts have identified the Davis-Bacon Act as a remedial statute that should be “liberally construed to effectuate its beneficent purposes.” E.g., Drivers Local Union No. 695 v. NLRB, 361 F.2d 547, 553 n.23 (D.C. Cir. 1966) (citing United States v. Binghamton Constr. Co., 347 U.S. 171, 177 (1954), for conclusion that statute is remedial). While the courts have not addressed the leaseconstruction contract situation directly, except in the Turnage case (which con­ cluded that the Crown Point contract was covered by the Davis-Bacon Act), they have made clear that public ownership is not essential for a finding that a contract is for construction of a public work under the related Miller Act. See, e.g., United States ex rel. N oland Co. v. Irwin, 316 U.S. 23 (1942) (Howard University li­ brary). This and similar cases did not even consider the possibility that the con­ tracts were not for construction; rather they focused on whether the construction was of a public work, defining the term as “including ‘any projects . . . carried on either directly by public authority or with public aid to serve the interests of the general public.’” Id. at 28, 30 (quoting the National Industrial Recovery Act’s definition of “public work” and applying it to a Miller Act bond case). The classic definition of a public work for purposes of the Depression-era labor statutes was set forth in the case of Peterson v. United States, 119 F.2d 145 (6th Cir. 1941), which stated that The term “public work” as used in the [Miller Act] is without tech­ nical meaning and is to be understood in its plain, obvious and ra­ tional sense. The Congress was not dealing with mere technicalities in the passage of the Act in question. “Public work” as used in the act includes any work in which the United States is interested and which is done for the public and for which the United States is authorized to expend funds. There is nothing in [Title Guaranty & Trust Co. v. Crane Co., 219 U.S. 24 (1910) (holding that ships are public works under predeces­ sor Heard Act, though not on public soil, because they are publicly owned)] from which an inference may be drawn that ownership was the sole criterion. To so circumscribe the act would destroy its purpose. Id. at 147. See also 29 C.F.R. § 5.2(k) (1994) (project is a public work if it is “carried on directly by authority of or with funds of a Federal agency,” and “serve[s] the interest of the general public regardless of whether title thereof is in a Federal agency”). While Peterson and other cases do not address directly the question whether a lease-construction contract is covered by the Davis-Bacon Act, they do suggest that a technical reading of the Act that defeats its purpose is inconsistent with the text 118 Reconsideration o f A pplicability o f the D avis-B acon A ct to the Veterans A dm inistration's Lease o f M edical Facilities as well as the purpose of the Act. See also Title Guaranty & Trust Co. v. Crane Co., 219 U.S. 24 (1910) (ships are public works under Heard Act though not af­ fixed to public property); Applicability o f Certain Acts to Construction, Alteration, and Repair o f Coast Guard Vessels, Boats, and Aircraft, 38 Op. Att’y Gen. 418 (1936) (same, under Davis-Bacon Act); Fidelity and Deposit Co. v. Harris, 360 F.2d 402, 408 (9th Cir. 1966) (construction of building for the Jet Propulsion Laboratory at the California Institute of Technology is a public work under the Miller Act); Autrey v. Williams and Dunlap, 343 F.2d 730, 734 (5th Cir. 1965) (Capehart Housing Act military housing project is a public work under Miller Act, “[although title . . . does not pass immediately to the United States, due to the novel financing plan” of the Capehart Act); United States ex rel. Gamerston & Green Lumber Co. v. Phoenix Assurance Co., 163 F. Supp. 713 (N.D. Cal. 1958) (Miiler Act applies to construction of post library at the Presidio, though paid for from nonappropriated funds).10 Finally, past Attorney General opinions also support a broad reading of the Act. See, e.g., Federal Aid Highway Program — Prevailing Wage Determination, 41 Op. Att’y Gen. 488, 500-01 (1960) (definition of mechanics and laborers under Davis-Bacon Act “is not to be given a niggardly construction” because the Act “is to be interpreted broadly to accomplish its purpose”); Wage Law Applicable to Alley Dwelling Authority fo r the District o f Columbia, 38 Op. Att’y Gen. 229, 233 (1935) (“broad construction” that Act covers buildings that may be resold to pri­ vate parties is “supported both by the language of the Act and by the apparent pur­ 10 T he 1988 O pinion did not address the question w hether the clinic construction called for u n d e r the C row n Point contract fell w ithin the definition o f a “public buildm g[] or public w ork[]” for purposes o f the D avis-B acon Act, and the status o f the C row n Point contract is no longer a m atter o f dispute in light of Building a n d C onstr. Trades D e p ’t, A F L -C IO v Turnage, 705 F. Supp 5 (D D C 1988) (holding lhat leaseconstruction o f V eterans A dm inistration outpatient clinic u n d er the C row n Point contract was c o v e re d by D avis-B acon). W ith respect to the C row n Point contract, how ever, we w ould note that v eterans’ hospitals, w hen constructed under ordinary financing m echanism s, w ere am ong the principal public buildings that the drafters had in mind, see, e.g , 74 C ong. Rec 6510-11 (1931) (rem arks o f R ep B acon), id at 6 5 0 6 (chart), and unquestionably serve a public purpose Furtherm ore, it is w ell established that the governm ent n eed not have eith er initial o r perm anent title to a building for the construction project to be deem ed a public w ork (though governm ent-ow ned property presents an easier case) See, e.g.. W age Law A p p lica b le to A lley D w elling A u th o rity f o r the D istrict oj C olum bia, 38 Op. A tt'y G en 229 (1935) (housing constructed under D C. A lley D w elling A uthority Act o f 1934 is a public work even though it may later be sold to p rivate p a r­ ties), U nited States ex rel. N oland Co v. In vin , 316 U S. 23, 2 9-30 (1942) (construction o f H ow ard U n iv e r­ sity library is a public work under related M iller Act, though library w as to be the property o f a private university), P eterson v. U nited States, 1 19 F 2d 145 (6th C ir 1941) (relocation of privately-ow ned railw ay that w ould be flooded by federal d am is a public w ork) W e believe that, in general, the d eterm ination w hether a lease-construction contract calls for construction o f a public building or public work likely will depend on the details o f the p articu lar arrangem ent. T hese m ay include such factors as the length o f the lease, the extent o f governm ent involvem ent in the construction project, the extent to w hich the c onstruction will be used for private rather than public purposes, the extent to w hich the costs of construction will be fully paid for by the lease paym ents, and w hether the contract is w ritten as a lease solely to evade the requirem ents o f the D avis-B acon Act, a possibility contem plated by the d issen ter from the 1987 W AB O pinion. H ow ever, we further believe that the fact that a novel financing m echanism is em ployed should not in itself d efeat the reading o f such a contract as being a contract for construction o f a public building or public work. 119 Opinions o f th e Office o f L e g a l C ounsel poses intended to be accomplished”). The sole exception to this trend is the 1988 O.L.C. Opinion. The 1988 Opinion quoted language from the 1935 and 1960 Attorney General opinions to suggest that the use of direct federal funds was an absolute requirement for Davis-Bacon coverage, citing a statement in the 1935 opinion that the Act ap­ plied to “buildings erected with funds supplied by the Congress,” 38 Op. Att’y Gen. at 233, and a statement in the 1960 opinion that it applied to “direct Federal construction,” 41 Op. Att’y Gen. at 495. Neither the opinions nor the quoted ex­ cerpts suggest that these are the only situations in which Davis-Bacon would apply. In both opinions, the Attorney General explicitly rejected narrow readings of the Act in favor of quite expansive ones, and used the “federal funds” concept to argue that a narrower reading would undermine the Act and the public goals it was de­ signed to serve. Neither opinion discussed lease-construction or any similar con­ struction financing mechanism, nor did either opinion suggest that the Act would not apply if the construction was not built with federal funds but instead was built under federal direction and later paid for with federal funds. A consideration of the context in which these opinions arose will illustrate the point. The 1935 opin­ ion involved construction and demolition of buildings under the D.C. Alley Dwelling Authority, which was empowered to tear down old buildings and con­ struct new ones to redevelop alleys in the District of Columbia. Because the Act contemplated that the new dwellings might later be leased or sold to private parties, it was contended that Davis-Bacon should not apply. Attorney General Cummings, however, determined that the prospect that the buildings would be sold did not detract from the public character o f the construction: I approve the broad construction which has thus been placed upon the statute and regard it as supported both by the language of the Act and by the apparent purposes intended to be accomplished. Under this view buildings erected with funds supplied by the Con­ gress for the furtherance of public purposes are not to be distin­ guished, so as to affect the application of the statute, upon consideration of their character or the particular public purpose which their building is intended to further; nor do I regard it as controlling that some of them will be, or may be, conveyed for a consideration to private persons at some time after completion. 38 Op. Att’y Gen. at 233. The 1988 Opinion’s quote from the 1960 opinion is itself a quote from the leg­ islative history of the Federal Highway and Highway Revenue Acts of 1956, and was drawn from a section of the history urging that Davis-Bacon wage standards should apply not only to “direct Federal construction” — highways constructed by the government (without regard to financing mechanisms) — but also to highways 120 Reconsideration o f A pplicability o f the D avis-B acon A ct to the Veterans A d m in istra tio n 's Lease o f M edical F acilities constructed by state and local governments, with federal financial assistance. 41 Op. Att’y Gen. at 495; H.R. Rep. No. 84-2022, at 12-13 (1956); 23 U.S.C. § 113 (successor Act). While the quoted legislative history indicates that the Congress thought that federally-aided nonfederal highway projects were not covered, this distinction is irrelevant to the question at issue here. Neither the 1960 opinion nor the Highway Act nor the quoted legislative history defines “direct Federal con­ struction” in such a way as to exclude lease-construction contracts. The only light these sources shed on the question of how lease-construction should be categorized is to emphasize that where the government is financially responsible for construc­ tion costs, the purposes of the Davis-Bacon Act may be implicated. Furthermore, this commentary was meant as background. The question at issue in the 1960 opinion was whether independent owner-operators of trucks on a Davis-Bacon project were nonetheless employee “mechanics and laborers,” subject to the Act’s prevailing wage requirement. The Attorney General concluded that they were, in part because a “niggardly construction” of the term “mechanics and laborers” would be inconsistent with the remedial purposes of the Act. 41 Op. Att’y Gen. at 500. In short, the cited Attorney General opinions interpreted the Davis-Bacon Act expansively to ensure that its beneficial purposes would not be evaded. Conse­ quently, we do not think that these opinions support the argument that particular financing mechanisms remove public construction projects, such as those paid for by long-term lease, from the Act. D. One final argument has been put forth to support the conclusion reached by the 1988 Opinion: that Congress, in other statutes, explicitly indicated that DavisBacon requirements would apply to particular lease contracts; and that these stat­ utes “indicate[] not only that Congress knows how to insure that leases are covered by the Davis-Bacon Act in those few situations where it so chooses, but also that section 276a(a) by itself does not include leases.” 1988 Opinion at 95. The pri­ mary statute relied upon is 39 U.S.C. § 410(d)(1), which states that A lease agreement by the Postal Service for rent of net interior space in excess of 6,500 square feet in any building or facility, or part of a building or facility, to be occupied for purposes of the Postal Service shall include a provision that all laborers and me­ chanics employed in the construction, modification, alteration, re­ pair, painting, decoration, or other improvement of the building or space covered by the agreement, or improvement at the site . . . shall be paid [Davis-Bacon wage rates]. 121 O pinions o f th e O ffice o f L e g a l C ounsel This statute covers not just the lease-construction of entire buildings, but construc­ tion involved in short-term use o f relatively small amounts of space in larger buildings, including incidental construction and improvements beyond those cited in the Davis-Bacon Act. It would take a more expansive reading of the DavisBacon Act than Labor has urged in this case to match this coverage. In light of this, the House Report cited in the 1988 Opinion almost certainly was correct in concluding that the statute extended Davis-Bacon coverage. H.R. Rep. No. 911104, at 27 (1970). Too, the Act was passed in 1970, before the Comptroller Gen­ eral reversed his 1962 decision that Davis-Bacon did not apply to leases. In view of these factors, we do not believe that this statute sheds much light on how Con­ gress intended Davis-Bacon to apply in other lease-construction settings. III. The Department of Labor also suggests that we should defer to its determination whether a particular contract is covered by Davis-Bacon, citing 29 C.F.R. §§ 5.13 and 7.1(d) (1994), Reorg. Plan No. 14 of 1950, 3 C.F.R. 1007 (1950), reprinted in 5 U.S.C. app. at 1261 (1988),11 and a variety of cases. While the authorities cited clearly indicate that Labor has authority to set wage rates, they do not indicate whether Labor’s resolution of legal questions relating to coverage disputes super­ cedes the Attorney General’s authority, under Executive Order No. 12146, 3 C.F.R. 409 (1979), to resolve legal disputes between executive branch agencies. Rather, these sources state that the contracting agency has the initial responsibility for determining coverage, see, e.g., Universities Research A ss’n v. Coutu, 450 U.S. 754, 759 n.6, 760 (1981); North G eorgia Building and Constr. Trades Council v. Goldschmidt, 621 F.2d 697, 703 (5th Cir. 1980); and that the Reorg. Plan and La­ bor Department regulations provide for review by Labor of contracting agencies’ coverage determinations. Reorg. Plan No. 14 of 1950; 29 C.F.R. §§ 5.13 and 7 .1(d); Coutu, 450 U.S. at 760; North Georgia, 621 F.2d at 704.12 11 R eorg Plan No. 14 provides In o rd er to assu re c o o rd in atio n of ad m in istratio n and co n sistency o f enforcem ent o f ihe labor stan d a rd s pro v isio n s o f e ac h o f the fo llo w in g Acts [in clu d ing the D avis-B acon A ci] by the F e d ­ eral agencies responsible for the adm inistration thereof, the Secretary o f Labor shall prescribe ap p ro p ria te stan d ard s, regulations, and procedures, w hich shall be observed by these agencies, and cau se lo b e m ade b y the D epartm ent o f Labor such in vestigations, with respect to co m p li­ ance w ith and e n fo rcem en t o f such labor standards, as he d eem s desirable 5 U .S C app at 1261 12 W hile Ihe N o rth G eo rg ia case also stales that the W age A ppeals B oard is “authorized [by 29 C F.R. § 7 1(d)] to act w ith finality on b eh alf of the S ecretary o f L ab o r” in review ing determ inauons m ade by agen­ cies in ap p ly in g the D av is-B aco n A ct, 621 F 2 d at 704, the q u o te d language indicates only that the W A B has final a u th o rity to act fo r the Secretary of L a b o r and does not indicate w hether, and lo w hai extent, the D e­ p a rtm e n t’s ex ercise o f that au th o rity is rev iew ab le by the A tto rney G eneral or by the courts. 29 C F R § 7 .1 (d ) say s only th a t the B oard “ shall act as fully and finally as m ight the Secretary o f Labor concerning such m a tte rs.” 122 Reconsideration o f A pplicability o f the D avis-B acon A ct to the Veterans A dm inistration ’s Lease o f M edical Facilities It is true that Reorganization Plan No. 14 of 1950 seeks coordination of admini­ stration and consistency of enforcement of, among other statutes, the Davis-Bacon Act, and that the Plan places the principal authority for bringing about consistent administration of the statute with the Department of Labor. 5 U.S.C. app. at 1261. That authority, however, must be reconciled with the authority of the Attorney General to make final decisions for the executive branch on legal determinations under Executive Order No. 12146, which provides that the Attorney General may resolve “legal disputes” between executive agencies. See also 28 U.S.C. § 511 (“The Attorney General shall give [her] advice and opinion on questions of law when required by the President”) and 28 U.S.C. § 512 (“The head of an executive department may require the opinion of the Attorney General on questions of law arising in the administration of his department”). We believe that, read together, the Davis-Bacon Act, the Reorganization Plan, 28 U.S.C. §§ 511 and 512, and Executive Order No. 12146, while granting the primary responsibility for inter­ preting Davis-Bacon to Labor, also confer on the Attorney General, at the request of appropriate officials, the authority to review the general legal principles under­ lying certain of the Secretary’s decisions under the Act. Accord Application o f the Davis-Bacon Act to Urban Development Projects that Receive Partial Federal Funding, 11 Op. O.L.C. 92, 94-95 (1987) (Reorganization Plan 14 “speaks only to the respective functions of HUD [the contracting agency] and Labor in adminis­ tering [Davis-Bacon provisions of] the Housing and Community Development Act,” and “does not preclude either the head of a department from seeking, or the Attorney General from rendering, an opinion on a question of law arising in the administration of his department”).13 13 T h is view is consistent with prior decisions o f the A ttorney G eneral som etim es cited for the pro p o sitio n that Labor has final authority to interpret the D avis-B acon Act. Thus, for exam ple, in F ederal A id H ighw ay P rogram — P revailing Wage D e term in a tio n, 41 O p A tt’y G en. 488 (1960), the A ttorney G eneral agreed only lhat Labor has authority under the R eorganization Plan and the statute to determ ine w hether certain em ployees w ere 'la b o re rs or m echanics” w ithin the m eaning o f the D avis-B acon A ct — not w hether the contract itse lf was covered. Since this opinion resolved a dispute betw een the D epartm ents o f L abor and C om m erce o v er w hich o f those iw o agencies should m ake the determ ination, it did not fully ad d ress the question o f the extent o f the authority o f the D epartm ent o f Justice to review Labor D epartm ent legal d e te r­ m inations under the Act Sim ilarly, in O ffice o f Federal Procurem ent P olicy — A u th o rity to D eterm ine W hether the S ervice C on­ tract Act, W al.sh-H ealev Act, o r D avis-B acon A ct A p p lies to C lasses o f F ederal P rocurem ent C o ntracts, 43 O p. A tt’y G en 150 (1979), w hile the A ttorney G eneral did conclude thai the D epartm ent o f L abor had authority to m ake contract coverage determ inations under the W alsh-H ealey and Service-C ontract A cts that are ' ‘binding on the procurem ent agencies,” id at 161, and that the O ffice of Federal Procurem ent Policy does not have statutory authority to m ake coverage d eterm inations under those statutes, id , these statem ents do not underm ine the authority o f the A ttorney G eneral to review legal aspects o f interagency d isputes relat­ ing to coverage decisions made by the D epartm ent o f Labor Furtherm ore, the 1979 A ttorney G eneral o p in ­ ion m ade no such express determ ination concerning the S ecretary ’s authority to m ake final D avis-B acon coverage decisions, and indeed, no one had contended that D avis-B acon covered the p articular c o n tract at issue in that case. S e e id. at 151 W hile the 1979 opinion also stated that L abor has authority to m ake c o v ­ erage determ inations under ’‘the contract labor standards statu tes,” including D avis-B acon, id at 153, this statem en t does not address the disputed question: w hether this authority precludes the D epartm ent o f Justice from review ing such decisions, and n eith er the opinion nor the cases cited in support o f this passage indicate 123 Opinions o f th e Office o f L egal C ounsel IV. For these reasons, we conclude that the ruling of the 1988 O.L.C. Opinion that the plain language of the Davis-Bacon Act indicates that it can never apply to a lease that calls for construction of a public work was incorrect. We believe that the determination whether a particular lease-construction contract is a “contract. . . for construction” of a public building or public work within the meaning of the DavisBacon Act will depend upon the details of the particular agreement. WALTER DELLINGER Assistant Attorney General Office o f Legal Counsel that the A tto rn ey G eneral m ay not address leg al q uestions arising from Labor D epartm ent D avis-B acon coverag e d ecisions. 124

Write a legal research memo on the following topic.

Availability of Judgment Fund in Cases Not Involving a Money Judgment Claim The Judgment Fund is not available for suits that do not seek to require the government to make direct payments of money to individuals, but merely would require the government to take actions that result in the expenditure of government funds. The Judgment Fund is available: (1) for the payment of final “money judgments" (but not for “non-money judgments”) whose payment is not “otherwise provided for”; (2) for the payment of tort settlements covered by statutory provisions listed in 31 U.S.C. § 1304(a); and (3) for the payment of non-tort settlements authorized by the Attorney General or his designee, whose payment is not “otherwise provided for,” if and only if the cause of action that gave rise to the settlement could have resulted in a final money judgment. April 14, 1989 M em orandum O pinion fo r the A ssistant A ttorney C ivil D ivision G eneral This memorandum responds to your request1 for the opinion of this Office concerning the availability of the permanent appropriation estab­ lished pursuant to 31 U.S.C. § 1304 (“the Judgment Fund”) for the pay­ ment of judgments or settlements not involving “money judgment” claims, i.e., “cases that are not framed in typical money damages terms [that] may nevertheless, at bottom, seek the expenditure of money by the government and are capable of compromise on that basis.” Civil Memorandum at 1. We conclude: (1) that fined judgments whose payment is not “otherwise provided for”2 are payable from the Judgment Fund if 1Memorandum for Douglas W Kmiec, Acting Assistant Attorney GeneraJ, Office of Legal Counsel, from John R Bolton, Assistant Attorney General, Civil Division, Re: Use o f the Judgment Fund fo r Settlement o f Cases or Payment o f Judgments that Do Not Involve a “Money Judgment” Claim (July 21, 1988) (“Civil Memorandum”) 2 We reaffirm this Office’s traditional position that a payment is “otherwise provided for” in two different situations. First, when a statute provides that particular kinds of judgments are to be paid from agency appropriations, the “otherwise provided for” criterion is satisfied with respect to judgments and settle­ ments. Second, judgments or settlements incurred by agencies in the course of certain “business-type” pro­ grams are also “otherwise provided for.” See Memorandum for D Lowell Jensen, Acting Deputy Attorney General, from Larry L. Simms, Deputy Assistant Attorney General, Office of Legal Counsel at 7-11 (Feb. 24, 1984); Memorandum for Abraham D Sofaer, Legal Adviser, Department of State, from Charles J Cooper, Assistant Attorney General, Office of Legal Counsel, Re- Availability of Judgment Fund to Pay Compivmise Settlement o f Iraman Claim at 4-5 (Feb. 16, 1988) The Comptroller General also has endorsed this two-pronged test for determining whether a payment is “otherwise provided for.” See General Continued 98 they require the government to make direct payments of money to indi­ viduals, but not if they merely require the government to take actions that result in the expenditure of government funds; (2) that a settlement is payable from the Judgment Fund if it involves a tort claim statutorily rec­ ognized in 31 U.S.C. § 1304(a), and its “payment is not otherwise provid­ ed for”; and (3) that a non-tort settlement is payable from the Judgment Fund under 28 U.S.C. § 2414 only if the litigation giving rise to the settle­ ment could have required the direct payment of money by the govern­ ment, had it resulted in a final judgment. I. Analysis We start as always with the plain language of the statutory text at issue. The Judgment Fund statute, 31 U.S.C. § 1304, provides in pertinent part: (a) Necessary amounts are appropriated to pay final judg­ ments, awards, compromise settlements, and interest and costs specified in the judgments or otherwise authorized by law when — (1) payment is not otherwise provided for; (2) payment is certified by the Comptroller General; and (3) the judgment, award, or settlement is payable — (A) under section 2414, 2517, 2672, or 2677 of title 28; (B) under section 3723 of this title; (C) under a decision of a board of contract appeals; or (D) in excess of an amount payable from the appropriations of an agency for a meritorious claim under section 2733 or 2734 of title 10, section 715 of title 32, or section 203 of the National Aeronautics and Space Act of 1958 (42 U.S.C. 2473). Section 1304 thus imposes three requirements that must be met before the Judgment Fund may be utilized. First, the judgment must be payable pursuant to one of a number of specified sections of the U.S. Code. 2 (...continued) Accounting Office, Principles o f Fedeinl Appropriations Law 12-14 (1982) (describing first test) (“GAO Manual”), 62 Comp Gen. 12, 14 (1982) (descnbing second test) (Although the opinions of the Comptroller General, an agent of Congress, are not binding on the executive branch, we regularly consult these opin­ ions for their informational and analytic value) 99 Second, there must not be another source of funds available to pay the judgment. Finally, payment of the judgment must be certified by the Comptroller General. The final requirement — the necessity of certification by the Comptroller General — does not appear to impose any additional sub­ stantive requirements on access to the judgment fund. The Comptroller General’s certification apparently follows from satisfaction of the other two requirements and completion of the necessary paperwork.3 Thus, we need only determine whether the first condition precludes the payment of non-money judgment claims from the Judgment Fund. (The second condition is analyzed in note 1, supra.) Two distinct categories of claims are payable from the Judgment Fund: final judgments and settlements. We examine those categories in turn. A. Final Judgments As indicated above, 31 U.S.C. § 1304(a) plainly states that “[n]ecessary amounts are appropriated to pay final judgments, awards, compromise settlements, and interest and costs ... when ... the judgment, award, or settlement is payable” under any one of a specified list of statutory pro­ visions. The primary statutory provision4 in that list that applies to final judgments is the first paragraph of 28 U.S.C. § 2414, which states (empha­ sis added): Except as provided by the Contract Disputes Act of 1978, payment of final judgments rendered by a district court or the Court of International Trade against the United States shall be made on settlements by the General Accounting Office. Payment offinal judgments rendered by a State or foreign court or tribunal against the United States, or against its agencies or officials upon obligations or liabili­ ties of the United States, shall be made on settlements by the General Accounting Office after certification by the Attorney General that it is in the interest of the United States to pay the same. 3 GAO itself takes this position, stating that the requirement of certification by the Comptroller General “is an essentially ministerial function and does not contemplate review of the merits of a particular judg­ m ent B-129227 (Dec. 22, 1960); see also 22 Comp. Dec. 520 (1916), 8 Comp Gen 603, 605 (1929) " GAO Manual, supra note 2, at 12-2. Indeed, w e believe that were the requirement of certification to be other than a ministerial function it would raise serious questions under the Supreme Court’s holding in Bowsker v. Synar, 478 U.S. 714 (1986) (Congress cannot constitutionally assign to the Comptroller General, an arm of Congress, the duty of executing the laws) 4Two other provisions authorize the payment of final judgments in specific types of cases, viz , 28 U.S.C. § 2517 (authorizing the payment of final judgments rendered by the United States Claims Court against the United States); and 31 U S.C. § 1304(a)(3)(C) (authorizing the payment of final judgments under “decisionls] of ... board[s] of contract appeals”). 100 Since section 2414 encompasses “payment offinal judgments," by def­ inition it only provides for disbursements from the Judgment Fund for judgments that are payable, i.e., judgments that, by their terms, require the United States to pay specified sums of money to certain parties.5 Applying this principle, final judgments that impose costs on the govern­ ment, but do not require the United States to make specific cash dis­ bursements, would appear to fall outside the scope of section 2414. Thus, for example, final judgments that required the United States to furnish subsidized housing,6 or that required the United States to correct struc­ tural defects in housing,7 would not be eligible for payment from the Judgment Fund (even though they might impose readily ascertainable money costs), because they would not require the United States to make cash payments to individuals. In sum, under our analysis, final court judg­ ments against the United States that require anything other than the direct payment of specified sums of money may not be paid from the Judgment Fund.8 6The legislative history of section 2414 supports this conclusion, which is drawn from the plain mean­ ing of the statute. At the time the Judgment Fund statute was originally enacted in 1956 (Supplemental Appropnation Act of 1957, Pub. L. No 84-814, § 1302, 70 Stat. 678, 694 (1956)), section 2414 only covered final judgments rendered by a federal district court When the first paragraph of section 2414 was revised in 1961 to authorize the payment of judgments rendered by state and foreign courts (previously that para­ graph had only authorized the payment of federal court judgments), and the payment of settlements, the House and Senate Judiciary Committee Reports dealing with that revision favorably incorporated by ref­ erence a Justice Department letter that discussed the use of the Judgment Fund to pay judgments. With respect to judgments, that letter stated in pertinent part: Prior to the enactment of the [judgment fund statute],. a large percentage of the judgments rendered against the United States were payable only upon the enactment of specific appro­ priations legislation for that purpose The enactment of that statute has materially reduced the administrative and legislative burdens involved in effecting the payments of judgments ... and it has substantially shortened the interval of the time between the entry of judgments and their satisfaction The legislation has both reduced the interest charges accruing upon judgments against the United States and the irritations inevitably associated with the delays occasioned by the former method of payment. The attached draft bill would .. provide a corresponding simplification in the procedures for the payment of judgments of State and foreign courts S. Rep No 733, 87th Cong., 1st Sess 1-2 (1961), reprinted %n 1961 U.S.C.C A N 2439, 2439; H.R. Rep. No 428, 87th Cong., 1st Sess 2 (1961). In short, this discussion manifests an understanding that the Judgment Fund was designed to effect pay­ ments of Final judgments without the need for the enactment of specific appmpriations bills, and to pre­ vent the accnial o f interest on unpaid final judgments That understanding, which centers solely on m on­ etary judgments (judgments that previously required specific appropriations and on which interest could accrue), supports the conclusion that the Judgment Fund is to be tapped for final judgments requiring the United States to pay specified sums of money Our interpretation squares with both the Civil Division’s view and the Comptroller General’s view of the legislative history. See Memorandum for Michael Jay Singer, Assistant Director, Appellate Staff, Civil Division, from Irene M. Solet, Attorney, Appellate Staff, Re: Possible Use o f the Judgment Fund ” For Payment o f a Settlement in Garrett v City o f Hamtramck at 2 (July 12,1988) (“Solet Memorandum”) (“Congress contemplated that the fund would be used for money judgments"), B-193323, 1980 WL 17186 (C G ), at *3 (Jan 31, 1980) (the judgment fund was “established for the purpose of paying money judgments against the United States”) (emphasis added) 6See Solet Memorandum, supra note 5, at 3. 7See B-193323, discussed in Solet Memorandum, supra note 5, at 2-3. 8 Judgments rendered by the United States Claims Court (which are money judgments) and by boards of contract appeals are also specifically made payable from the Judgment Fund. See supra note 4 101 B. Settlements Several statutory provisions found in the Judgment Fund statute pro­ vide for the payment of settlements, including 28 U.S.C. § 2672 (authoriz­ ing the settlement of “any claim for money damages” against the United States for torts committed by the employee of any federal agency while acting within the scope of his employment); 28 U.S.C. § 2677 (authorizing the Attorney General to “arbitrate, compromise, or settle any claim cog­ nizable under” 28 U.S.C. § 1346(b), the jurisdictional provision that allows courts to hear tort claims for money damages against the United States); and 31 U.S.C. § 3723 (authorizing agency heads to settle small tort claims for damage or loss, to private property due to a federal officer’s or employee’s negligence). In addition, the Judgment Fund is available for the payment of the “excess of an amount payable from the appropriations of an agency for a meritorious claim under 10 U.S.C. §§ 2733-2734” (authorizing the Secretaries of military departments to settle tort claims arising out of the actions of their employees, at home or abroad), 32 U.S.C. § 715 (authorizing the Secretary of the Army or the Secretary of the Air Force to settle certain tort claims arising out of certain actions by members of the Army or Air National Guard), and 42 U.S.C. § 2473 (authorizing the NASA Administrator to settle certain tort claims arising out of NASA’s activities). In short, 31 U.S.C. § 1304(a) contains a variety of specific provisions authorizing the payment of a variety of tort settle­ ments from the Judgment Fund. The primary provision authorizing the payment of settlements from the Judgment Fund, is, however, 28 U.S.C. § 2414, the third paragraph of which provides: Except as otherwise provided by law, compromise set­ tlements of claims referred to the Attorney General for defense of imminent litigation or suits against the United States, or against its agencies or officials upon obligations or liabilities of the United States, made by the Attorney General or any person authorized by him, shall be settled and paid in a manner similar to judgments in like causes and appropriations or funds available for the payment of such judgments are hereby made available for the payment of such compromise settlements.9 In short, under the third paragraph of section 2414, compromise set­ tlements of suits against the United States, its agencies, or officials, made by the Attorney General or any person he authorizes, “shall be settled and 9 The second paragraph of section 2414, not reproduced in this memorandum, is not relevant to the questions addressed herein That paragraph merely specifies that the Attorney General’s decision not to appeal a court judgment renders it final. 102 paid in a manner sim ilar to judgments in like causes." (Emphasis added.) By its very terms, this paragraph contemplates that the manner of payment for a settlement approved by the Attorney General or his designee turns upon the manner in which a “judgment[] in [a] like cause[]” would have been paid. Since the term “like cause[]” is not statu­ torily defined,10and its meaning is not self-evident, we turn to the princi­ ple of statutory construction that statutory provisions “relating to the same person or thing or having a common purpose” are in “pari materia [and] are to be construed together,” i.e., in a consistent manner. Black’s Law Dictionary 711 (5th ed. 1979).11 Applying this principle, we turn to the first paragraph of section 2414 (which shares with the third paragraph the “common purpose” of delineating the availability of the Judgment Fund) to gain insight into the manner in which judgments are to be paid. As previously discussed, the first paragraph makes it plain that final judg­ ments requiring the direct payment of money are payable from the Judgment Fund, while non-money judgments must be paid from other sources. Accordingly, it is logical to infer that the reference to the “man­ ner (of payment) similar to judgments in like causes” in the third para­ graph of section 2414 is a shorthand term for linking the payment of a set­ tlement to the payment either of a money judgment or of a non-money judgment. Employing this logic, if the underlying “cause[]” of a settlement could have led to a money judgment, had no settlement been reached, then the settlement, similar to the judgment, is payable from the Judgment Fund. On the other hand, if the underlying “cause[]” would have led to a non-money judgment, then the settlement, similar to the judgment, is not payable from the Judgment Fund. It therefore follows that, in determining whether a proposed settlement is payable from the Judgment Fund, the Attorney General or his designee should examine the underlying cause of action, and decide whether the rendering of a final judgment against the United States under such a cause would have required a payment from the Judgment Fund. 10The only congressional discussion of the phrase referring to “like causes” is a brief reference in the Senate and House Judiciary Committee Reports reiterating the plain statutory language H R Rep. No. 428, supra note 5, at 3 (“compromises effected by the Attorney General or any person authorized by him shall be settled and paid in the same manner as judgments in like causes”), S. Rep. No 733, repnnted in 1961 U S.C C A.N. at 2441, supra note 5, at 3 (same). 11The federal courts have recognized that when statutes are in pan materia they should be construed consistently, if at all possible See, e.g., Haig v. Agee, 453 U S. 280, 300-01 (1981) (statute making it unlawful to travel abroad without a passport even in peacetime must be read in pan materia with — i e., in a manner harmonious with — the Passport Act), FAIC Securities, Inc v. United States, 768 F.2d 352, 363 (D C. Cir 1985) (National Housing Act and Federal Insurance Corporation Act are in pari materia since they share “the common purpose of insuring funds placed in depository institutions,” and, therefore, “the two statutes .. cannot be construed to reach different results”); United States v Stauffer Chemical Co , 684 F.2d 1174, 1184, 1188 (6th Cir 1982), cert granted, 460 U.S. 1080 (1983), aff’d, 464 U.S 165 (1984) (provisions in pari m atena “should be given the same meaning . section 114 of the Clean Air Act and section 308 of the Clean Water Act are in pan materia, and (therefore) should be interpreted the same way"). 103 Our conclusion that section 2414 only authorizes Judgment Fund dis­ bursements for settlements of causes that could have resulted in money judgments is consistent with the historical development of the Judgment Fund statute. When the Judgment Fund statute was enacted in 1956, only the payment of money judgments was provided for, see supra note 5. Had Congress wished to provide for the payment from the Judgment Fund of all settlements when it amended the Judgment Fund statute in 1961, pre­ sumably it would specifically have so indicated. Its failure to do so sup­ ports the conclusion that in extending the Judgment Fund statute to reach settlements, Congress believed it was only bringing within that statute’s ambit settlements of causes that could have resulted in Judgment Fund disbursements, had such causes resulted in final money judgments, rather than settlements. Finally, any conclusion that would permit the Judgment Fund to pay out settlements in cases in which it would not pay out judgments would provide agencies with an incentive to urge settlement of cases in order to avoid payment from agency funds. We would not lightly attribute to Congress an intent to create a structure that might encourage settlements that would not otherwise be in the interest of the United States. II. Conclusion For the foregoing reasons, we conclude that the Judgment Fund is available: (1) for the payment of final “money judgments” (but not “non­ money judgments”) whose payment is not “otherwise provided for”; (2) for the payment of tort settlements covered by statutory provisions listed in 31 U.S.C. § 1304(a); and (3) for the payment of non-tort settlements authorized by the Attorney General or his designee, whose payment is “not otherwise provided for,” if and only if the cause of action that gave rise to the settlement could have resulted in a final money judgment. DOUGLAS W. KMIEC Assistant Attorney General Office of Legal Counsel 104

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Calculating Rate of Pay of Department of Justice Employees for Purposes of “ Covered Persons” Determination Under Independent Counsel Act The term “ rate o f p a y ” in the section of th e Independent C ounsel Act that indicates w hich D epartm ent o f Ju stice em p lo y ees are “ covered p erso n s” does not include “ locality-based com parability pay­ m e n ts” under 5 U S.C §5 3 0 4 . April 2, 1997 M em orandum O p in io n fo r t h e A c t in g D e p u t y A t t o r n e y G e n e r a l Under 28 U.S.C. § 591(b)(4) (1994), the class of “ covered persons” subject to investigation by an Independent Counsel includes “ any individual working in the Department of Justice who is compensated at a rate of pay at or above level III of the Executive Schedule under section 5314 of title 5.” You have asked whether the term “ rate of pay” in this section includes “ [l]ocality-based com­ parability paym ents” under 5 U.S.C. §5304 (1994). We conclude that it does not. Under provisions in the Ethics in Government Act of 1978, Pub. L. No. 95521, §601, 92 Stat. 1824, 1867 (codified as amended at 28 U.S.C. §§591-599 (1994 & Supp. II 1996)) ( “ Act” or “ Independent Counsel Act” ), an Independent Counsel may be appointed to investigate alleged crimes by certain high-level offi­ cials of the government.1 In some instances, the officials subject to such investiga­ tions are identified by their level o f pay. The Act reflects the judgment that, in the Department of Justice, officials whose rate of pay equals or exceeds Level III of the Executive Schedule “ are those . . . closest to the Attorney General and the President and would, therefore, present the most serious conflict of interest of an institutional nature if the Department of Justice were to have to investigate and prosecute serious criminal allegations against any of these individuals.” S. Rep. No. 95-170, at 53 (1977). The “ covered persons” include the Deputy Attorney General, the Associate Attorney General, and the Solicitor General. See 5 U.S.C. §5313 (1994 & Supp. II 1996); id. §5314. The Act also specifies that the Assistant Attorneys General are “ covered persons,” even though they are paid less than the amount for Level III. See 28 U.S.C. § 591(b)(4); 5 U.S.C. §5315. The Act, however, does not make clear whether the “ rate of pay” that identifies officials subject to investigation by an Independent Counsel refers to (1) total pay, including locality-based adjustments, or (2) “ basic pay,” exclusive o f such 'T he application of the Act to high-level officials is sometimes called the “ mandatory coverage” of the Act See, e.g , S Rep. No 103-101, at 19 (1993), reprinted m 1994 U S C C A N 748, 763 (“ Senate Report” ) The Act also allows the Attorney General to seek appointment of an Independent Counsel where she “ determines that an investigation or prosecution of a person by the Department of Justice may result in a personal, financial, or political conflict of interest,” 28 U S C § 591(c)(1) (1994), or where the allegation is against a member of Congress, id § 591(c)(2) 68 Calculating Rate o f Pay o f Department o f Justice Employees fo r Purposes o f “Covered P ersons" Determination Under Independent Counsel Act adjustments. If locality-based adjustments are excluded, officials in the Senior Executive Service are not “ covered persons.” The rate of pay for such officials, excluding locality-based adjustments, can be no higher than $115,700 a year, but the benchmark for coverage — Level III of the Executive Schedule — is a yearly pay rate of $123,100. See Exec. Order No. 13033, 61 Fed. Reg. 68,987, 68,992 (1996). On the other hand, if locality-based adjustments are included, officials in the top three levels of the Senior Executive Service (ES-4, ES-5, and E S 6) could become “ covered persons,” depending on the area of the country where they work.2 We believe that locality-based adjustments do not count as part of the “ rate of pay” under 28 U.S.C. §591. When Congress provided for locality-based pay in the Federal Employees Pay Comparability Act of 1990, 5 U.S.C. § 5304(d)(1)(A), it aimed at “ pay parity, between Federal employees and their nonfederal counterparts on a locality-by-locality basis.” H.R. Conf. Rep. No. 101— 906, at 87 (1990) (calling for comparison with the “ rates of pay generally paid to non-Federal workers for the same levels of work within each pay locality” ). A locality-based adjustment, therefore, corresponds to the supply-and-demand conditions in the particular location, rather than the importance of the official receiving the adjustment or his or her closeness to the Attorney General. As a consequence, interpreting “ rate of pay” to include locality-based adjustments would distort the design of the Act. Persons otherwise not covered by the Act would become “ covered persons” as a result of the location where they work, rather than the position they occupy. Such a result would not only fail to serve the purposes of the Act, but would actually be contrary to them as well. A higherlevel official, paid as an E S-6 and working in an area to which a specific localitybased adjustment would not be applicable, would not be a “ covered person,” while a lower -level official, paid as an ES-4 and (for example) working in Houston, would be “ covered.” 3 Inclusion of locality-based adjustments is also inconsistent with Congress’s apparent intent, insofar as it can be discerned from the legislative history. When Congress most recently reauthorized the Independent Counsel Act in 1994, it assumed that approximately fifty officials would come within the mandatory cov­ erage of the Act. Senate Report at 19, reprinted in 1994 U.S.C.C.A.N. at 764. If locality-based adjustments were included in the “ rate of pay” under 28 U.S.C. § 591, the number of additional “ covered persons” in the Federal Bureau of Inves­ tigation alone would double the total in the government as a whole otherwise reached by the Act. See Memorandum for Michael R. Stiles, United States 2 For example, an official paid as an ES-4 who lived m the area of Houston-Galveston-Brazona, Texas, would receive a locality-based increase of 11 52 percent, which would bring his or her salary to approximately $124,790. This amount would exceed the $123,100 benchmark Exec Order No 13033,61 Fed Reg. at 68,996 3 At present, there is a locality-based comparability adjustment of 4.81 percent for all parts of the United States not covered by specific adjustments. See Exec Order No 13033, 61 Fed. Reg at 68,996 However, an official paid at the ES-6 level who benefits from this general adjustment would still be making less than the Level 111 benchmark. 69 Opinions o f the Office o f Legal Counsel in Volume 21 Attorney, and H. Marshall Jarrett, Chief, Criminal Division, from Steven W. Pelak and Carol Fortine, Assistant United States Attorneys, Re: Additional Information Regarding the Scope o f the Independent Counsel Statute at 3 (Mar. 18, 1997). Such a broad sweep would be inconsistent with Congress’s understanding. We appreciate that there is a reasonable argument on the other side. Congress adopted the phrase “ rate of pay,” rather than “ rate of basic pay,” a term of art specifically meaning “ the rate o f pay . . . before any deductions and exclusive of additional pay of any other kind, such as locality-based comparability pay­ ments.” 5 C.F.R. § 534.401(b)(3) (1996). Elsewhere, Congress has distinguished between “ rate of basic pay” and “ total” pay, including comparability payments, see 5 U.S.C. § 5304(g)(1), or, where it has wanted to include locality-based adjust­ ments as part of “ basic pay” for specific purposes, such as retirement and insur­ ance, has done so expressly, see id. § 5304(c)(2). By not employing the term “ rate of basic pay,” but using “ rate o f pay” instead, Congress arguably meant to include comparability payments in determining the coverage of the Act. Indeed, when Congress set up the current system of locality-based comparability adjust­ ments, it expressly provided that the post-employment restrictions dictating a oneyear “ cooling o f f ’ period would apply to (among others) persons “ employed in a position . . . for which the basic rate o f pay, exclusive of any locality-based pay adjustment,” is above a specified level. 18 U.S.C. § 207(c)(2)(A)(ii) (1994 & Supp. II 1996). It enacted no such amendment to the Independent Counsel Act. Furthermore, the Act uses “ rate of pay” as a proxy for closeness to the Attorney General, and because salary does not necessarily reflect this closeness, the fit between the statute’s standard and its purpose already is imprecise. There­ fore, although inclusion of locality-based pay might make the fit even less precise, this difference would be a matter o f degree, rather than kind. We nevertheless believe that, on the better view, locality-based pay should be excluded. The Act has contained the “ rate of pay” language since its original passage in 1978. At that time, the provisions establishing a “ pay comparability system,” see 5 U.S.C. §§5301-5308 (1976), stated that “ [p]ay may not be paid, by reason of any provision of this subchapter, at a rate in excess of the rate of basic pay for level V of the Executive Schedule,” id. §5308; see also Legislative Branch Appropriation Act, 1979, Pub. L. No. 95-391, §304, 92 Stat. 763, 78889 (1978). Under those provisions, therefore, an official’s salary could not rise to the level at which the Act would apply. Although Congress could have clarified the issue by using the “ rate of basic pay” formulation in the 1994 reauthorization (or earlier in the statute creating the current system of locality-based comparability adjustments), it does not appear to have focused on this matter,4 and the legislative history (as discussed above) shows an understanding of the Act’s coverage that 4 The only consideration of locality-based adjustments dunng the passage of the 1994 reauthonzation appears in connection with an amendment to the section on the pay of staff in an Independent Counsel’s office. 28 U S C § 594(c). 70 Calculating Rate o f Pay o f Department o f Justice Employees fo r Purposes o f ‘'Covered Persons ’' Determination Under Independent Counsel Act is more consistent with the interpretation we adopt than with the contrary one. We therefore do not believe that much weight can rest on the failure to use the “ rate of basic pay” language5 or that any fair inference against our conclusion can be drawn from amendments of other statutes making clear that locality-based comparability adjustments are, for particular purposes, to be disregarded. Further­ more, although the use of pay as a measure of closeness to the Attorney General is necessarily inexact, inclusion of locality-based pay in the “ rate of pay” would greatly magnify the imprecision. An additional extraneous factor— geography — would become relevant, and officials at lower pay grades would come within the Act while others at higher grades would remain outside it. We thus believe that the argument for including locality-based pay, while reasonable, is ultimately less than persuasive. RICHARD L. SHIFFRIN Deputy Assistant Attorney General Office o f Legal Counsel *See also Treasury, Posial Service and General Government Appropriations Act, 1991, Pub L No 101-509, § 101(c)(1)(B), 104 Stat 1389, 1442 (using “ rate of pay” to refer to pay under the General Schedule excluding locality-based adjustments) 71

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Application of 18 U.S.C. § 208 to Service by Executive Branch Employees on Boards of Standard-Setting Organizations U n d er 18 U S.C . § 208, a federal em ployee may serve as a m em ber o f the board o f a private voluntary standards organization to the extent necessary to perm it participation in his or her official capacity in the o rg an izatio n ’s standard-setting activities. August 24, 1998 M em orand um O p in io n O f f ic e of fo r th e G en era l C o u n sel G o v e r n m e n t E t h ic s This responds to your request o f August 10, 1998 for our opinion whether, absent a waiver, 18 U.S.C. §208 (1994) would forbid employees of the executive branch from serving, in their official capacities, as members of the boards of pri­ vate voluntary standards organizations. We believe that, to the extent necessary to permit the federal employees to take part in the standard-setting activities, § 208 does not bar such service. Section 208 prohibits an officer or employee from taking part as a government official in any “ particular matter” in which he or she has a financial interest. The statute imputes to the employee the financial interests of certain other persons and entities, including an “ organization in which he is serving as officer, director, trustee, general partner or employee.” 18 U.S.C. § 208(a). In an earlier opinion, we observed that when an employee is acting in his or her official capacity as a director or officer of an outside entity, the work for that entity necessarily entails official action affecting the entity’s financial interests. We therefore concluded that, under 18 U.S.C. §208, the “ broad prohibition against conflicts o f interest within the federal government would prevent a government employee from serving on the board o f directors of an outside organization in his or her official capacity, in the absence of: (1) statutory authority or a release of fiduciary obligations by the organization that might eliminate the conflict of interest, or (2) a waiver of the requirements of § 208(a), pursuant to 18 U.S.C. § 208(b).” Service on the Board o f Directors o f Non-Federal Entities by Federal Bureau o f Investigation Personnel in Their Official Capacities, 20 Op. O.L.C. 379, 379 (1996) (“ FBI Opinion” ). In particular, if “ Congress has authorized the service by statute, the official ‘serves . . . in an ex officio rather than personal capacity,’ owes a duty only to the United States, and does not violate section 208.” Service by Federal Officials on the Board o f Directors o f the Bank fo r International Settlements, 21 Op. O.L.C. 87 (1997) (citation omitted) (“ FRB Opinion” ). Since the FBI Opinion, we have had a number of occasions to consider whether particular statutes confer authority for service on outside boards. We have found such authority in a range of circumstances. Sometimes the statutes expressly con­ templated official service on an outside board. See Memorandum for Files, from 210 A pplication o f 18 U.S.C. § 2 0 8 to Service by Executive B ranch E m ployees on B oards o f StandardSetting Organizations Daniel Koffsky, Special Counsel, Office of Legal Counsel, Re: Foundations and Commissions Under Fulbright Program (Oct. 24, 1997); Memorandum for Files, from Daniel Koffsky, Special Counsel, Office of Legal Counsel, Re: Service on Outside Board (Feb. 27, 1998) (United States-India Fund for Cultural, Edu­ cational, and Scientific Cooperation). In another instance, the statute was less explicit, but we found the authority because service on the outside entity was a means by which the United States negotiated with foreign governments and “ the breadth of the President’s power [in that area] counsels a broad reading of congressional authorization for particular means by which the power may be exer­ cised.” FRB Opinion, 21 Op. O.L.C. at 89 (citation omitted). In one other instance, where the agency largely conducts its operations in secret and had to create the outside entity to preserve the secrecy of its work, we concluded that the outside organization was, for relevant purposes, a part of the federal govern­ ment, and thus no conflict existed. As this experience in applying the principles of the FBI Opinion has made clear, Congress has enacted a variety of arrangements contemplating, directly or indirectly, that federal employees will participate in outside organizations, including by serving on their boards, and it would frustrate these arrangements if such service were considered a disqualifying “ director[ship]” under 18 U.S.C. §208. See Applicability o f 18 U.S.C. §208 to Proposed Appointment o f Govern­ ment Official to the Board o f Connie Lee, 18 Op. O.L.C. 136, 138 (1994) (cat­ egories of service considered outside statute). We believe that there are cir­ cumstances in which statutory authority for service on an outside board can be found even though Congress has not expressly addressed that service. When Con­ gress has specifically provided for participation in outside organizations and such participation, to carry out the statutory purposes, entails service on a board, statu­ tory authorization may be inferred. Here, Congress has provided that, in general, federal agencies and departments “ shall use technical standards that are developed or adopted by voluntary con­ sensus standards bodies” and, in carrying out this requirement, “ shall consult with voluntary, private sector, consensus standards bodies and shall, when such participation is in the public interest and is compatible with agency and depart­ mental missions, authorities, priorities, and budget resources, participate with such bodies in the development o f technical standards." National Technology Transfer and Advancement Act of 1995, Pub. L. No. 104—113, § 12(d)(1) & (2), 110 Stat. 775, 783 (1996), 15 U.S.C. §272 note (1994) (emphasis added). As the legislative history explains, Congress desired and anticipated that federal agencies would “ work closely” with voluntary standard-setting organizations, that these organiza­ tions would “ include active government participation,” and that agencies would “ work with these voluntary consensus standards bodies, whenever and wherever appropriate.” H.R. Rep. No. 104—390, at 15, 25 (1995). When the board o f an outside organization plays an integral role in the process of setting standards, it 211 Opinions of the Office o f Legal Counsel in Volume 22 would therefore frustrate the statute to forbid federal employees from being on the board. They could not then take the “ active” role that Congress mandated. To carry out the statute, therefore, employees may serve on these outside boards without running afoul of 18 U.S.C. §208, if the boards are engaged in the standard-setting activities in which Congress directed federal agencies to partici­ pate. To be sure, §208 allows for waivers when the employee’s “ interest is not so substantial as to be deemed likely to affect the integrity of the services which the Government may expect,” 18 U.S.C. § 208(b)(1), and thus a conclusion that § 208 generally would bar employees from serving on standard-setting bodies in their official capacities would not necessarily have prevented the service in every instance. Nevertheless, reliance on the waiver procedure would not be consonant with the statutory scheme here. Congress itself has resolved the possible conflict between duties to the organization and duties to the United States, at least to the extent that the criminal prohibition may be at issue. W e would not reach the same conclusion, however, if the board of an organiza­ tion had only administrative responsibilities and was not directly involved in standard-setting. In that event, the congressional direction to “ participate . . . in the development of technical standards” would not apply. Consequently, in accordance with the FBI Opinion, § 208 would bar the service on the board, absent a waiver or an effective release from fiduciary duty. Finally, you also ask us to confirm your view that an employee’s service in an official capacity as the chair o f a working committee or subcommittee of a standard-setting organization, to the extent the position imposes no fiduciary duty and creates no employer-employee relationship, would not implicate 18 U.S.C. § 208. W e agree that service in such a position would not itself trigger the statute. Indeed, we are far from certain that a position other than one specified in § 208— “ officer, director, trustee, general partner or employee” —could be the basis for imputing an organization’s financial interest to the employee, even if that other position created a fiduciary duty to the organization. In any event, the positions you describe would not give rise to an imputed disqualification. BETH NOLAN Deputy Assistant Attorney General Office o f Legal Counsel 212

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President’s Receipt of the Nobel Peace Prize The Emoluments Clause of the Constitution does not bar the President from accepting the Nobel Peace Prize without congressional consent, because the Norwegian Nobel Committee is not a “King, Prince, or foreign State.” The Foreign Gifts and Decorations Act does not bar the President from accepting the Nobel Peace Prize without congressional consent, because the Norwegian Nobel Committee is not a “unit of a foreign governmental authority,” an “international or multinational organization whose membership is composed of any unit of foreign government,” or an “agent or representative of any such unit or such organization.” December 7, 2009 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT This memorandum concerns whether the President’s receipt of the Nobel Peace Prize would conflict with the Emoluments Clause of the Constitution, which provides that “no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” U.S. Const. art. I, § 9, cl. 8. As we previously explained in our oral advice and now explain in greater detail, because the Nobel Committee that awards the Peace Prize is not a “King, Prince, or foreign State,” the Emoluments Clause does not apply. You have also asked whether the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342 (2006), bars the President from receiving the Peace Prize. Here, too, we confirm our previous oral advice that it does not. I. On October 9, 2009, the Norwegian Nobel Committee (the “Peace Prize Committee,” or the “Committee”), headquartered in Oslo, Norway, announced that the President will be this year’s recipient of the Nobel Peace Prize. The 2009 Peace Prize, which will consist of ten million Swedish Kroner (or approximately $1.4 million), a certificate, and a gold medal bearing the image of Alfred Nobel, is expected to be awarded by the Nobel Committee to the President on December 10, 2009—the anniversary of Nobel’s death. See Statutes of the Nobel Foundation § 9, http://nobelprize.org/nobelfoundation/statutes.html (last visited Nov. 370 President’s Receipt of the Nobel Peace Prize 24, 2009) (“Nobel Foundation Statutes”); see also The Nobel Prize Amounts, http://nobelprize.org/nobel_prizes/amounts.html (last visited Nov. 24, 2009). The Peace Prize is a legacy of Swedish chemist Alfred Bernhard Nobel. In his will, Nobel directed that a portion of his wealth be used to establish a set of awards, one of which, the Peace Prize, was intended to honor the person or entity that “shall have done the most or the best work for fraternity between nations, for the abolition or reduction of standing armies and for the holding and promotion of peace congresses.” Nobel Foundation Statutes § 1 (setting forth the pertinent provision of Nobel’s will). The relevant assets of the Nobel estate have been managed since 1900 by the Nobel Foundation, a private institution based in Stockholm, Sweden. See Birgitta Lemmel, The Nobel Foundation: A Century of Growth and Change (2007) (“Lemmel”), http:// nobelprize.org/nobelfoundation/history/lemmel (last visited Nov. 24, 2009). The Foundation is responsible for managing the assets of the bequest in such a manner as to provide for the annual award of the Nobel prizes and the operation of the prize-awarding bodies, including the Nobel Committee that selects the Peace Prize. Nobel Foundation Statutes § 14; see also Lemmel (“One vital task of the Foundation is to manage its assets in such a way as to safeguard the financial base of the prizes themselves and of the prize selection process.”). Unlike the other Nobel prizes, for accomplishments in fields such as literature and physics, which are awarded by committees appointed by Swedish institutions, Nobel specified in his will that the recipient of the prize “for champions of peace” was to be selected “by a committee of five persons to be elected by the Norwegian Storting [i.e., the Norwegian Parliament].” Nobel Foundation Statutes § 1. On April 26, 1897, the Storting formally agreed to carry out Nobel’s will and, in August of that year, elected the first members of the Nobel Committee that would award the prize funded by Nobel’s estate. That Committee—not the Storting itself, or any other official institution of the Norwegian government, or the Nobel Foundation—has selected the Peace Prize recipients since 1901. To be sure, in its nascent years, the Nobel Committee was more “closely linked not only to the Norwegian political establishment in general, but also to the Government,” than it is today. See Øyvind Tønnesson, The Norwegian Nobel Committee (1999) (“Tønnes371 33 Op. O.L.C. 370 (2009) son”), http://nobelprize.org/nobel_prizes/peace/articles/committee (last visited Nov. 24, 2009). Indeed, until 1977, the Committee’s official title was the Nobel Committee of the Norwegian Storting. Nevertheless, it has long been recognized that the “[C]ommittee is formally independent even of the Storting, and since 1901 it has repeatedly emphasized its independence.” Id. In 1936, for instance, the Norwegian Foreign Minister and a former Prime Minister recused themselves from the Committee’s deliberations out of concern that bestowing the award on the German pacifist Carl von Ossietzky would be perceived as an act of Norwegian foreign policy. Id.; see also Berlin Protests Ossietzky Award, N.Y. Times, Nov. 26, 1936, at 22 (noting that “Norway [d]enies [r]esponsibility for Nobel [d]ecision”). To make clear the independent nature of the Committee’s decisions, moreover, the Storting in the very next year, 1937, barred government ministers from sitting on the Nobel Committee. See Special Regulations for the Award of the Nobel Peace Prize and the Norwegian Nobel Institute, etc., adopted by the Nobel Committee of the Norwegian Storting on the 10th day of April in the year 1905 (including amendments of 1977, 1991, 1994, 1998 and 2000), § 9, http://nobelprize.org/nobelfoundation/statutes-no. html (last visited Nov. 24, 2009) (“Nobel Peace Prize Regulations”) (“If a member of the [Nobel] Committee is appointed a member of the Government during his period of office, or if a member of the Government is elected a member of the Committee, he shall resign from the Committee for as long as he continues in office as a Minister”). Furthermore, for nearly 36 years, no member of the Committee has been permitted as a general matter to continue serving in the Storting. See Tønnesson (“[I]n 1977 . . . the Storting decided that its members should not participate in nonparliamentary committees appointed by the Storting itself.”). 1 That said, an appointment to the Committee does not appear to require a sitting member of the Storting to resign immediately from his or her government position, and thus two of the current members, who joined the Nobel Committee in 2009, appear to have served on the Storting during much, if not all, of the period during which this year’s Prize recipient was selected. See List of Nobel Committee Members, http://nobelpeaceprize.org/en_GB/ To further emphasize the Committee’s independence from the Norwegian government, including the monarchy, “[u]nlike the prize award ceremony in Stockholm [for the other Nobel Prizes], it is the Chairperson of the Nobel Committee, and not the King [of Norway]” who formally presents the Peace Prize. Tønnesson. 1 372 President’s Receipt of the Nobel Peace Prize nomination_committee/members/ (last visited Dec. 4, 2009). The other three members of the Committee were private individuals. Id. Apart from the Storting’s role in selecting the members of the Nobel Committee, the Norwegian government has no meaningful role in selecting the Prize recipients or financing the Prize itself. In addition to fully funding the Prize, the Sweden-based private Nobel Foundation, established pursuant to Alfred Nobel’s will, is responsible for the Committee’s viability and the administration of the award. Specifically, your Office has informed us that the Committee’s operations, including the salaries of the various Committee members and of the staff, are funded by the Foundation and not by the Norwegian or Swedish governments. See E-mail for David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel, from Virginia R. Canter, Associate Counsel to the President, (Nov. 2, 2009, 19:11 EST) (“Canter E-mail”) (summarizing telephonic interview with Geir Lundestad, Secretary to the Nobel Committee and Director of the Nobel Institute); see also Nobel Foundation Statutes § 11 (“The Board of the Foundation shall establish financial limits on the work that the prize-awarding bodies perform in accordance with these statutes”); id. § 6 (“A member of a Nobel Committee shall receive remuneration for his work, in an amount to be determined by the prize-awarding body [i.e., the Nobel Committee].”). The Committee also deliberates and maintains staff in the Nobel Institute building, which is owned by the private Nobel Foundation rather than by the government of Sweden or Norway. See The Nobel Institute, http://nobelpeaceprize.org/en_GB/ institute/ (last visited Dec. 4, 2009) (noting that Nobel Institute building is also where the recipient of the Peace Prize is announced); see also Description of Nobel Institute Building, http://nobelpeaceprize.org/en_GB/ institute/nobel-building/ (last visited Dec. 4, 2009). Although the Nobel Foundation plays a critical role in sustaining the Nobel Committee and the Peace Prize, it is the Nobel Committee that independently selects the Prize recipients. See Organizational Structure of the Nobel Entities, http:// nobelprize.org/nobelfoundation/org_structure.html (last visited Nov. 24, 2009) (“The Nobel Foundation does not have the right or mandate to influence the nomination and selection procedures of the Nobel Laureates.”); see also Lemmel (“[T]he Prize-Awarding Institutions are not only entirely independent of all government agencies and organizations, but also of the Nobel Foundation.”). 373 33 Op. O.L.C. 370 (2009) II. The Emoluments Clause provides that “no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” U.S. Const. art. I, § 9, cl. 8. Adopted unanimously at the Constitutional Convention, the Emoluments Clause was intended to recognize the “necessity of preserving foreign Ministers & other officers of the U.S. independent of external influence,” specifically, undue influence and corruption by foreign governments. See 2 The Records of the Federal Convention of 1787, at 389 (Max Farrand ed., rev. ed. 1966) (notes of James Madison); see also 3 id. at 327 (“It was thought proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments from foreign states.”) (remarks of Governor Randolph); Applicability of the Emoluments Clause to Non-Government Members of ACUS, 17 Op. O.L.C. 114, 116 (1993) (“ACUS ”); President Reagan’s Ability to Receive Retirement Benefits from the State of California, 5 Op. O.L.C. 187, 188 (1981) (discussing the background of the ratification of the Clause). The President surely “hold[s] an[] Office of Profit or Trust,” and the Peace Prize, including its monetary award, is a “present” or “Emolument . . . of any kind whatever.” U.S. Const. art. I, § 9, cl. 8. The critical question, therefore, concerns the status of the institution that makes the award. Based on the consistent historical practice of the political branches for more than a century with respect to receipt of the Peace Prize by high federal officials, as well as our Office’s precedents interpreting the Emoluments Clause in other contexts, we conclude that the President in accepting the Prize would not be accepting anything from a “foreign State” within the Clause’s meaning. Accordingly, we do not believe that the President’s acceptance of the Peace Prize without congressional consent would violate the Emoluments Clause. A. None of our Office’s precedents concerning the Emoluments Clause specifically considers the status of the Nobel Committee (or the Nobel Foundation), but there is substantial and consistent historical practice of 374 President’s Receipt of the Nobel Peace Prize the political branches that is directly relevant. The President would be far from the first government official holding an “Office of Profit or Trust” to receive the Nobel Peace Prize. Rather, since 1906, there have been at least six federal officers who have accepted the Prize while serving in their elected or appointed offices. The Peace Prize has been received by two other sitting Presidents—Theodore Roosevelt and Woodrow Wilson—by a sitting Vice President, Secretary of State, and Senator, and by a retired General of the Army, 2 with the most recent of these acceptances having occurred in 1973. Throughout this history, we have found no indication that either the Executive or the Legislative Branch thought congressional approval was necessary. The first instance of the Nobel Committee awarding the Peace Prize to a sitting officer occurred only five years after the Committee began awarding the Prize. In 1906, President Theodore Roosevelt received the Peace Prize. 3 On December 10 of that year, United States Minister to Norway Herbert H.D. Pierce accepted the “diploma, medal, and order upon the Nobel trustees [of the Nobel Foundation] for the amount of the prize” on Roosevelt’s behalf. See “Emperor Dead” and Other Historic American Diplomatic Dispatches 336–37 (dispatch from Pierce to Secretary of State Elihu Root) (Peter D. Eicher ed., 1997) (“Pierce Dispatch”). Not only did Roosevelt accept the Peace Prize while President, he also chose as President to use the award money (roughly $37,000) to establish a foundation for the promotion of “industrial peace.” See Oscar S. Straus, Under Four Administrations: From Cleveland to Taft 239–40 (1922) (“Straus”) (noting that Roosevelt transferred the draft of the monetary award to Chief Justice Fuller in January of 1907 to initiate efforts to establish the Foundation). We have found no indication that the President or Congress believed that receipt of the Prize, including its award money, required legislative approval. Although Congress passed legislation to establish Roosevelt’s See Memorandum for the File from Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Proposed Award of Honorary British Knighthood to Retiring Military Officer (Aug. 27, 1996) (retired military officers continue to “hold[] [an] Office of Profit or Trust” under the United States and hence remain subject to the Emoluments Clause); see also 53 Comp. Gen. 753 (1974) (same). 3 See List of Nobel Peace Prize Laureates, http://nobelprize.org/nobel_prizes/peace/ laureates (last visited Nov. 19, 2009). 2 375 33 Op. O.L.C. 370 (2009) foundation, see Act of Mar. 2, 1907, ch. 2558, Pub. L. No. 59-217, 34 Stat. 1241, it did so some months after he accepted the Peace Prize, and we think it clear that neither the President nor Congress thought this law necessary to satisfy the Emoluments Clause. 4 The bill that established the trust said nothing about consent even though Congress assuredly knew how to express such legislative approval for Emoluments Clause purposes. For instance, the same Congress that established the foundation at Roosevelt’s request also “authorized [Professor Simon Newcomb, a retired Naval Officer] to accept the decoration of the order ‘Pour le Mérite, für Wissenschaftern und Kunste,’ conferred upon him by the German Emperor,” Act of Mar. 30, 1906, ch. 1353, Priv. Res. No. 591280, 34 Stat. 1713, 1713, and granted “[p]ermission . . . to [a Navy RearAdmiral] . . . to accept the China war medal, with Pekin clasp, tendered to him by the King of Great Britain, and the Order of the Red Eagle, with swords, tendered to him by the Emperor of Germany,” Act of Mar. 4, 1907, Priv. Res., 34 Stat. 2825, 2825 (S.J. Res. 98, 59th Cong.). 5 4 Consistent with this understanding of the congressional action, the bill establishing the foundation was modeled after documents creating trusts, see Straus at 239, and not statutes conferring legislative consent to officers’ receipt of gifts from foreign states. Further, the statute’s legislative history contains no indication that the bill was intended to ratify Roosevelt’s acceptance of a gift from a foreign power; nor does it indicate that his acceptance of the Prize without congressional consent was inappropriate. See S. Rep. No. 59-7283 (1907); see also 41 Cong. Rec. 4113 (1907) (“There can be no possible objection [to the bill]. It establishes trustees, who are to receive from the President the Nobel prize for the foundation of a society for the promotion of industrial peace.”) (statement of Sen. Lodge). Ultimately, the Foundation never expended any funds, and in July of 1918, Congress dissolved the trust. See Act of July 12, 1918, ch. 150, Pub. Res. No. 65-37, 40 Stat. 899 (H.J. Res. 313) (“Joint Resolution Providing for the disposition of moneys represented in the Alfred Bernard Nobel peace prize, awarded in nineteen hundred and six”). Roosevelt then distributed the Nobel Prize money, along with the interest it had accrued, to various charities in the United States and Europe. See Straus at 241. 5 See also, e.g., Act of Apr. 2, 1896, Priv. Res. No. 54-39, 29 Stat. 759, 759 (“authoriz[ing]” President Harrison “to accept certain medals presented to him by the Governments of Brazil and Spain during the term of his service as President of the United States”); Act of Apr. 20, 1871, Priv. Res. No. 42-4, 17 Stat. 643, 643 (“[C]onsent of Congress is hereby given to . . . [the] secretary of the Smithsonian Institution, to accept the title and regalia of a commander of the Royal Norwegian Order of St. Olaf, conferred upon him for his distinguished scientific service and character by the King of Sweden and Norway”); Act of Mar. 3, 1865, Priv. Res. No. 38-39, 13 Stat. 604, 604 (Navy Captain “authorized to accept the sword of honor recently presented to him by the government of 376 President’s Receipt of the Nobel Peace Prize Perhaps most importantly, the statute that established the foundation to administer the prize money that Roosevelt had accepted does not address at all Roosevelt’s receipt of the gold medal and diploma. Yet the medal and the diploma have always constituted elements of the Peace Prize, see Pierce Dispatch at 337 (noting receipt of Nobel medal); see also Nobel Lecture of President Roosevelt (May 5, 1910), http://nobelprize.org/ nobel_prizes/peace/laureates/1906/roosevelt-lecture.html (last visited Nov. 23, 2009) (“The gold medal which formed part of the prize I shall always keep, and I shall hand it on to my children as a precious heirloom.”), and they constitute a “present” or “Emolument . . . of any kind whatever” within the meaning of the Emoluments Clause. Thus, if the law establishing the trust to be funded by the award money had been intended to provide congressional consent for President Roosevelt’s receipt of the Prize, it would presumably have encompassed these elements of the Prize as well. The example more than a decade later of President Wilson also clearly reflects an understanding by the political branches that receipt of the Peace Prize does not implicate the Emoluments Clause. When, in December of 1920, President Wilson received the Peace Prize, he, unlike President Roosevelt, did not seek to donate the Prize proceeds to a charitable cause or enlist Congress’s aid in accomplishing such a charitable purpose. Instead, he simply accepted the Prize and deposited the award money in a personal account in a Swedish bank, apparently hoping for a favorable movement in the Kroner/dollar exchange rate. See 67 The Papers of Woodrow Wilson 51–52 (Arthur S. Link ed., 1992) (diary of Charles Lee Swem). President Wilson does not appear to have sought congressional approval for his acceptance, nor does it appear that Congress thought its consent was required. These Presidents are not, as indicated above, the only federal officers who have received the Peace Prize. Senator Elihu Root in 1913, Vice President Charles Dawes in 1926, retired General of the Army George Marshall in 1953, and Secretary of State Henry Kissinger in 1973 each received the Nobel Peace Prize. See List of Nobel Peace Prize Laureates, Great Britain”); Act of June 29, 1854, Priv. Res. No. 33-14, 10 Stat. 830, 830 (“authoriz[ing] . . . accept[ance of ] a gold medal recently presented . . . by His Majesty the King of Sweden”). 377 33 Op. O.L.C. 370 (2009) supra note 3. As was the case with Presidents Roosevelt and Wilson, none of these recipients, as far as we are aware, received congressional consent prior to accepting the Prize or congressional ratification of such receipt at any time thereafter. This longstanding treatment of the Nobel Peace Prize is particularly significant to our analysis because several of the Prizes were awarded when the Nobel Committee—then known as the Nobel Committee of the Norwegian Storting—lacked some of the structural barriers to governmental control that are present today, such as rules generally barring government ministers and legislators from serving on the Committee. If anything, then, these prior cases arguably would cause more reason for concern than would be present today, and yet the historical record reveals no indication that either the Congress or the Executive believed receipt of the Prize implicated the Emoluments Clause at all. The absence of such evidence is particularly noteworthy since the Clause was recognized as a bar to gifts by foreign states without congressional consent throughout this same period of time, such that the Attorney General and this Office advised that various gifts from foreign states could not be accepted, see, e.g., Gifts from Foreign Prince, 24 Op. Att’y Gen. 116, 118 (1902), and Congress passed legislation specifically manifesting its consent to some gifts bestowed by foreign states on individuals covered by the Clause. See supra note 5. To be sure, this long, unbroken practice of high federal officials accepting the Nobel Peace Prize without congressional consent cannot dictate the outcome of our constitutional analysis. But we do think such practice strongly supports the conclusion that the President’s receipt of the Nobel Peace Prize would not conflict with the Emoluments Clause, as it may fairly be said to reflect an established understanding of what constitutes a gift from a “foreign State” that would trigger application of the Clause’s prohibition. Cf. Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 415 (2003) (analyzing President’s foreign affairs power under the Constitution in light of “longstanding practice” in Executive Branch and congressional silence); Dames & Moore v. Regan, 453 U.S. 654, 686 (1981) (noting that a “‘systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned . . . may be treated as a gloss on’” the Constitution); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring) (“Deeply embedded traditional ways of conducting government cannot 378 President’s Receipt of the Nobel Peace Prize supplant the Constitution or legislation, but they give meaning to the words of a text or supply them.”); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 315, 401 (1819) (where “the great principles of liberty are not concerned . . . [a doubtful question,] if not put at rest by the practice of the government, ought to receive a considerable impression from that practice”). B. The precedents of our Office reinforce the constitutional conclusion that the historical practice recounted above strongly suggests. Indeed, our Office’s numerous opinions on the Emoluments Clause have never adverted to the receipt of the Peace Prize by government officials and certainly have never suggested that the numerous acceptances of the Prize were contrary to the Clause. That is not surprising. Under these same opinions, it is clear that, due to the unique organization of the Nobel Committee (including its reliance on the privately endowed Nobel Foundation), Nobel Peace Prize recipients do not receive presents or emoluments from a “foreign State” for purposes of the Emoluments Clause. The precedents of the Office do establish that the Emoluments Clause reaches not only “foreign State[s]” as such but also their instrumentalities. ACUS, 17 Op. O.L.C. at 122; Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. 13, 18 (1994) (“Public Universities”). Quite clearly, the Nobel Committee is not itself a foreign state in any traditional sense. The issue, therefore, is whether the Committee has the kind of ties to a foreign government that would make it, and by extension the Nobel Foundation in financing the Prize, an instrumentality of a foreign state under our precedents. Our past opinions make clear that an entity need not engage specifically in “political, military, or diplomatic functions” to be deemed an instrumentality of a foreign state. 6 See Public Universities, 18 Op. O.L.C. Accordingly, we have explained that corporations owned or controlled by a foreign government are presumptively foreign states under the Emoluments Clause, even though the Act of State doctrine suggests that “when foreign governments act in their commercial capacities, they do not exercise powers peculiar to sovereigns,” and thus are not entitled to the immunity from suit that might be available. ACUS, 17 Op. O.L.C. at 120 6 379 33 Op. O.L.C. 370 (2009) at 19; see also ACUS, 17 Op. O.L.C. at 122 (“[T]he language of the Emoluments Clause does not warrant any distinction between the various capacities in which a foreign State may act.”). Thus, for example, we have determined that entities such as corporations owned or controlled by a foreign government and foreign public universities may fall within the prohibition of the Clause. ACUS, 17 Op. O.L.C. at 121–22. To determine whether a particular case involves receipt of a present or emolument from a foreign state, however, our Office has closely examined the particular facts at hand. Specifically, we have sought to determine from those facts whether the entity in question is sufficiently independent of the foreign government to which it is arguably tied— specifically with respect to the conferral of the emolument or present at issue, e.g., hiring an employee or bestowing an award, Public Universities, 18 Op. O.L.C. at 20—that its actions cannot be deemed to be those of that foreign state. In short, our opinions reflect a consistent focus on whether an entity’s decision to confer a particular present or emolument is subject to governmental control or influence. 7 The factors we have considered include whether a government is the substantial source of funding for the entity, see, e.g., Applicability of Emoluments Clause to Proposed Service of Government Employee on Commission of International Historians, 11 Op. O.L.C. 89, 90 (1987) (“International Historians”); whether a government, as opposed to a private intermediary, makes the ultimate decision regarding the gift or emolument, see, e.g., Memorandum for John G. Gaine, General Counsel, Commodity Futures Trading Commission, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Expense Reimbursement in Connection with Trip to Indonesia (Aug. 11, 1980) (“Trip to Indonesia”); and whether a government has an active role in the management of the entity, such as through having government officials serve on an entity’s board of directors, see, e.g., Public Universities, 18 Op. O.L.C. (“[N]othing in the text of the Emoluments Clause limits its application solely to foreign governments acting as sovereigns.”). 7 Where a foreign state indisputably and directly confers a present or emolument, such considerations of autonomy and control may be relevant, but not decisive. See ACUS, 17 Op. O.L.C. at 119. Here, however, the critical issue is whether the Nobel Committee, and by extension the Nobel Foundation, is an instrumentality of a foreign government for purposes of awarding the privately endowed Peace Prize. 380 President’s Receipt of the Nobel Peace Prize at 15. No one of these factors has proven dispositive in our prior consideration of Emoluments Clause issues. Rather, we have looked to them in combination to assess the status of the entity for purposes of the Clause, keeping in mind at all times the underlying purpose that the Clause is intended to serve. See, e.g., Memorandum for H. Gerald Staub, Office of Chief Counsel, National Aeronautics and Space Administration, from Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal Counsel, Re: Emoluments Clause Questions Raised by NASA Scientist’s Proposed Consulting Arrangement with the University of New South Wales (May 23, 1986) (“given [foreign public university’s] functional and operational separation and independence from the government of Australia and state political instrumentalities . . . [t]he answer to the Emoluments Clause question . . . must depend [on] whether the consultancy would raise the kind of concern (viz., the potential for ‘corruption and foreign influence’) that motivated the Framers in enacting the constitutional prohibition”). Consistent with this analysis, we have concluded in the past that Emoluments Clause concerns are raised where the “ultimate control” over the decision at issue—e.g., an employment decision or a decision to bestow an award—resides with the foreign government. For instance, an employee of the Nuclear Regulatory Commission (“NRC”) sought authorization to work for a consulting firm that was retained by the Mexican government. Application of the Emoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 158 (1982). Because we concluded that the “ultimate control, including selection of personnel, remains with the Mexican government,” id. (“the retention of the NRC employee by the consulting firm appears to be the principal reason for selection of the consulting firm by the Mexican government”), we determined that the Emoluments Clause barred the arrangement. Similarly, we concluded that an invitation to join a commission of international historians that was established and funded entirely by the Austrian government constituted an invitation from the Austrian government itself. International Historians, 11 Op. O.L.C. at 90. By contrast, although we have previously opined that foreign public universities are presumptively instrumentalities of a foreign state for the purposes of the Emoluments Clause, we determined that two NASA scientists on leave without pay could be employed by the University of 381 33 Op. O.L.C. 370 (2009) Victoria in British Columbia, Canada, without triggering that constitutional restraint. Public Universities, 18 Op. O.L.C. at 13. We came to this conclusion because the evidence demonstrated that the University acted independently of the Canadian (or the British Columbian) government when making faculty employment decisions. Id. at 15 (“[T]he University of Victoria should not be considered a foreign state.”). To be sure, as we acknowledged, the University was under the formal control of the British Columbia government. Id. at 20 (noting that the government had “ultimate” control of the University); see also id. at 15 (noting that the faculty was “constituted” by the University’s Board of Governors, the majority of whom were appointed by the provincial government). Nevertheless, it was critical to our analysis that the specific conduct at issue—the University’s selection of faculty—was not made by the University “under statutory compulsion” or pursuant to the “dictates of the government.” Id. at 20–21 (quoting McKinney v. Univ. of Guelph, [1990] 3 S.C.R. 229, 269 (Can.) (plurality op.)). Similar considerations of autonomy informed our view that a federal officer could serve as a consultant to Harvard University on a project funded by the government of Indonesia. See Trip to Indonesia at 5. Although the consulting services were to be rendered for the benefit of Indonesia and the individual consultant’s expenses were to be reimbursed by Harvard from funds paid by Indonesia, we identified no violation of the Emoluments Clause. We reached this conclusion in significant part because, under the consulting arrangement, Harvard had the sole discretion over the consultants it chose, and Indonesia had no veto power over those choices. Id. (“Since . . . the foreign government neither controls nor even influences the selection and payment of consultants, the Emoluments Clause is not implicated.”). In light of these precedents, we believe that it is significant that the Nobel Committee’s selection of the Peace Prize recipient is independent of the dictate or influence of the Norwegian government. As far as we are aware, the Norwegian government has no authority to compel the Committee to choose the Prize recipient; nor does it have any veto authority with respect to the selection by the Committee members, who, in any event, are not appointed by a single official to whom they are accountable, but are instead elected by the multimember Storting. See Nobel Foundation Statutes § 1. To be sure, Norwegian government officials may 382 President’s Receipt of the Nobel Peace Prize submit nominations to the Committee, but that opportunity is shared by any “[m]embers of national assemblies and governments of states,” along with “University rectors” and “professors of social sciences, history, philosophy, law and theology.” Nobel Peace Prize Regulations § 3. Indeed, the formal process of nomination and selection of a Prize recipient is not guided by the government, but by the private, Sweden-based Nobel Foundation and the Nobel Committee. 8 For example, pursuant to the Foundation’s rules, no prize-awarding body, including the Peace Prize Committee, may reveal the details of its deliberations “until at least 50 years have elapsed after the date on which the decision in question was made.” Nobel Foundation Statutes § 10. We have found no indication that the Norwegian government or its officials, if requesting such information, would be exempt from this restraint on disclosure. Other aspects of the selection process, including guidelines on nominations and supporting materials, are either provided in the private Foundation’s statutes or delegated by the Foundation—not by the Norwegian government—to the prize-awarding bodies, including the Peace Prize Committee. E.g., id. § 7 (“To be considered eligible for an award, it is necessary to be nominated in writing by a person competent to make such a nomination.”). These formal limits on the capacity of the Norwegian government to influence, let alone control, the Committee’s decision, are consistent with the Committee’s own repeated assertions of its independence. See Tønnesson. The Government of Norway’s financial connection to the Nobel Committee is even more attenuated. It appears that the members of the Nobel Committee are compensated for their services by the privately funded Nobel Foundation, see Canter E-mail, and the precise amount of the remuneration is set by the Nobel Committee, not the Norwegian government. See Nobel Foundation Statutes § 6. The Peace Prize itself, including The Storting appears to have the limited authority only to approve “[i]nstructions concerning the election of members of the Nobel Committee” itself. See Nobel Foundation Regulations § 9. Any other amendments to the Committee’s rules of operation, including its award selection guidelines, are decided upon by the Committee itself, after views are solicited from the Nobel Foundation. Id. (“Proposals for amendments to other provisions of these regulations may be put forward by members of the Norwegian Nobel Committee or by members of the Board of Directors of the Nobel Foundation. Before the Norwegian Nobel Committee makes a decision concerning the proposal, it shall be submitted to the Board of Directors of the Nobel Foundation for an opinion.”). 8 383 33 Op. O.L.C. 370 (2009) its cash award and other elements, is funded by the Nobel Foundation, which alone is responsible for ensuring that all of the Nobel prizeawarding bodies can accomplish their purposes and which is itself financed by private investments and not government funding. Id. § 14 (“The Board [of the Foundation] shall administer the property of the Foundation for the purposes of maintaining good long-term prizeawarding capacity and safeguarding the value of the Foundation’s assets in real terms.”); see also The Nobel Foundation’s Income Statement (2008), http://nobelprize.org/nobelfoundation/incomes.html (last visited Dec. 7, 2009); Lemmel (describing Nobel Foundation’s investment strategies to ensure financial base of Nobel Prizes). Thus, in our view, the only potentially relevant tie to the Norwegian government is that, in accordance with Alfred Nobel’s will, the Storting elects the Nobel Committee’s five members. Further, we are aware that, notwithstanding the rules generally barring sitting members of the Storting from the Nobel Committee, two members of the Storting served on the Committee for several months before leaving their parliamentary seats. However, in light of the strong basis for the Committee’s autonomy, both as to the decision it makes and the finances upon which it draws, we do not view the Storting’s appointment authority, or a minority of the Committee members’ short-term overlap with parliamentary service, as having dispositive significance. Nor has our Office done so in the past in analogous cases. In determining that an award to a Navy scientist from the Alexander von Humboldt Foundation was from the German government for the purposes of the Emoluments Clause, for example, we noted that the “awards are made by a ‘Special Committee,’ on which the Federal Ministries for Foreign Affairs and Research and Technology are represented.” See Letter for Walter T. Skallerup, Jr., General Counsel, Department of the Navy, from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel at 2 (Mar. 17, 1983). But we did not indicate that the presence of the government ministers on the award committee was the decisive factor in our analysis. Instead, we also noted that the Foundation was reestablished (because it had once been dissolved) by the Federal Republic of Germany, specifically by its Ministry of Foreign Affairs. In addition, we noted that the Foundation that administered the award was financed mainly through annual payments from the West German government. See id. By contrast, 384 President’s Receipt of the Nobel Peace Prize the Nobel Committee is financed by the private Nobel Foundation, and although the Norwegian government may have formally established the Committee (as the “Nobel Committee of the Norwegian Storting”), it did so pursuant to a private individual’s will, which assigned the Storting the limited role of electing the Committee’s members, who would be charged with exercising their independent judgments. Likewise, we concluded that the University of British Columbia in hiring faculty was not acting as a foreign state for the purposes of the Emoluments Clause—notwithstanding the provincial government’s power to appoint a majority of the members of the University’s board of governors. Public Universities, 18 Op. O.L.C. at 14, 22 (citing Harrison v. Univ. of British Columbia, [1990] 3 S.C.R. 451, 459 (Can.) (plurality op.)). We also determined that the Prince Mahidol Foundation was not an instrumentality of the Government of Thailand for the purposes of the Emoluments Clause, although several officials of the Thai government and the Royal Princess of Thailand sat on the Foundation’s board. Memorandum for the File from Daniel L. Koffsky, Office of Legal Counsel, Re: Application of the Emoluments Clause to a U.S. Government Employee Who Performs Services for the Prince Mahidol Foundation (Nov. 19, 2002) (“Prince Mahidol Foundation”). 9 In each case, we found countervailing indications of autonomy to be more significant. As noted above, we concluded that the University of British Columbia’s faculty decisions, including contract negotiations and collective bargaining, were not subject to governmental compulsion. Public Universities, 18 Op. O.L.C. at 20–21 (noting University’s “‘legal autonomy’”). And despite the presence of the Thai government and royalty, we determined that the decision-making process of the Prince Mahidol Foundation’s Board evidenced “independ9 Similarly, the Supreme Court has indicated that a government’s appointment authority is not given dispositive weight in determining whether a nominally private entity is, in fact, “what the Constitution regards as the Government.” See Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 392 (1995) (holding that Amtrak was a state actor subject to the First Amendment). That the federal government appointed a majority of Amtrak’s directors was not considered to be of controlling importance. As the Lebron Court observed, the Consolidated Rail Corporation (“Conrail”) was held “not to be a federal instrumentality, despite the President’s power to appoint, directly or indirectly, 8 of its 15 directors.” Id. at 399; see also Regional Rail Reorganization Act Cases, 419 U.S. 102, 152 (1974) (“Conrail is not a federal instrumentality by reason of the federal representation on its board of directors.”). 385 33 Op. O.L.C. 370 (2009) ent judgment.” Prince Mahidol Foundation at 4 (also noting that “most of the funds for the Foundation do not come from the [Thai] government”). These same considerations concerning the exercise of independent judgment and financial autonomy are at least as present here. In sum, determining whether an entity is an instrumentality of a foreign government is necessarily a fact-bound inquiry, see Application of the Emoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 158 (1982) (“Each situation must . . . be judged on its facts.”), and the weight of the evidence in light of this Office’s consistent precedents—and as reinforced by the substantial historical practice—demonstrates that the awarding of the privately financed Peace Prize through the Nobel Committee does not constitute the conferral of a present or emolument by a “foreign State” for the purposes of the Emoluments Clause. III. Our reasoning regarding the Emoluments Clause is equally applicable to the Foreign Gifts and Decorations Act. The Act provides express consent for officials to accept “gifts and decorations” from “foreign government[s]” under certain limited circumstances not present here. See 5 U.S.C. § 7342(b) (2006) (“An employee may not . . . accept a gift or decoration, other than in accordance with the provisions of” the Act); see also id. § 7342(a)(1)(E) (providing that the President is subject to the Act). Section 7342(a)(2) defines the term “foreign government” as follows: “foreign government” means— (A) any unit of foreign governmental authority, including any foreign national, State, local, and municipal government; (B) any international or multinational organization whose membership is composed of any unit of foreign government described in subparagraph (A); and (C) any agent or representative of any such unit or such organization, while acting as such. While we do not necessarily assume that Congress intended the meaning of “foreign government” to be coextensive with the constitutional 386 President’s Receipt of the Nobel Peace Prize term “foreign State,” we have recognized that the Act’s reference to “any unit of foreign governmental authority” is likely narrower in scope than the Emoluments Clause. See ACUS, 17 Op. O.L.C. at 121 (recognizing that corporations owned or controlled by foreign States are arguably not “units of foreign governmental authority,” although they are presumptively subject to the Emoluments Clause); cf. S. Rep. No. 95-194, at 29 (1977) (definition of “foreign government” intended to reach “foreign governmental subdivision(s)” and “quasi-government organizations”). For the reasons discussed in detail above, the Nobel Committee in choosing the recipients of the Peace Prize, like the Nobel Foundation in financing the Prize, operates as a private non-governmental organization and not as a “unit” of a foreign government. Moreover, given the Foundation’s private nature and the facts that the Committee acts independently of any government and is not required to include any government officials on it, see The Norwegian Nobel Committee, http://nobelprize.org/prize_awarders/ peace/committee.html (last visited Nov. 23, 2009) (“Although this is not a requirement, all committee members have been Norwegian nationals.”), we conclude that neither is an “international or multinational organization” because neither is “composed of any unit of foreign government,” let alone composed of units of more than one foreign government. 5 U.S.C. § 7342(a)(2)(B); see also Emoluments Clause and World Bank, 25 Op. O.L.C. 113, 117 (2001) (concluding that international organizations of which the United States is a member are not generally subject to the Emoluments Clause and observing that the Act’s coverage of international organizations was likely “motivated by policy concerns as opposed to constitutional ones”). Nor is the Committee as a whole, or, by extension, the Nobel Foundation in financing the Prize, an “agent or representative” of any unit of a foreign government or any international organization for purposes of the Act. Although two members of the Committee continued to serve in the Storting before leaving their parliamentary seats, we do not believe this limited tie between the Government of Norway and the Committee, affecting a minority of the Committee’s members, transformed the Nobel Committee into an agent or representative of the Norwegian Government. Id. § 7342(a)(2)(C). The countervailing indications of autonomy described above support that conclusion. Consequently, the Foreign Gifts and Decorations Act poses no bar to the President’s receipt of the Peace Prize. 387 33 Op. O.L.C. 370 (2009) IV. For the reasons given above, we conclude that neither the Emoluments Clause nor the Foreign Gifts and Decorations Act prohibits the President from receiving the Nobel Peace Prize without congressional consent. DAVID J. BARRON Acting Assistant Attorney General Office of Legal Counsel 388

Write a legal research memo on the following topic.

President’s Receipt of the Nobel Peace Prize The Emoluments Clause of the Constitution does not bar the President from accepting the Nobel Peace Prize without congressional consent, because the Norwegian Nobel Committee is not a “King, Prince, or foreign State.” The Foreign Gifts and Decorations Act does not bar the President from accepting the Nobel Peace Prize without congressional consent, because the Norwegian Nobel Committee is not a “unit of a foreign governmental authority,” an “international or multinational organization whose membership is composed of any unit of foreign government,” or an “agent or representative of any such unit or such organization.” December 7, 2009 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT This memorandum concerns whether the President’s receipt of the Nobel Peace Prize would conflict with the Emoluments Clause of the Constitution, which provides that “no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” U.S. Const. art. I, § 9, cl. 8. As we previously explained in our oral advice and now explain in greater detail, because the Nobel Committee that awards the Peace Prize is not a “King, Prince, or foreign State,” the Emoluments Clause does not apply. You have also asked whether the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342 (2006), bars the President from receiving the Peace Prize. Here, too, we confirm our previous oral advice that it does not. I. On October 9, 2009, the Norwegian Nobel Committee (the “Peace Prize Committee,” or the “Committee”), headquartered in Oslo, Norway, announced that the President will be this year’s recipient of the Nobel Peace Prize. The 2009 Peace Prize, which will consist of ten million Swedish Kroner (or approximately $1.4 million), a certificate, and a gold medal bearing the image of Alfred Nobel, is expected to be awarded by the Nobel Committee to the President on December 10, 2009—the anniversary of Nobel’s death. See Statutes of the Nobel Foundation § 9, http://nobelprize.org/nobelfoundation/statutes.html (last visited Nov. 370 President’s Receipt of the Nobel Peace Prize 24, 2009) (“Nobel Foundation Statutes”); see also The Nobel Prize Amounts, http://nobelprize.org/nobel_prizes/amounts.html (last visited Nov. 24, 2009). The Peace Prize is a legacy of Swedish chemist Alfred Bernhard Nobel. In his will, Nobel directed that a portion of his wealth be used to establish a set of awards, one of which, the Peace Prize, was intended to honor the person or entity that “shall have done the most or the best work for fraternity between nations, for the abolition or reduction of standing armies and for the holding and promotion of peace congresses.” Nobel Foundation Statutes § 1 (setting forth the pertinent provision of Nobel’s will). The relevant assets of the Nobel estate have been managed since 1900 by the Nobel Foundation, a private institution based in Stockholm, Sweden. See Birgitta Lemmel, The Nobel Foundation: A Century of Growth and Change (2007) (“Lemmel”), http:// nobelprize.org/nobelfoundation/history/lemmel (last visited Nov. 24, 2009). The Foundation is responsible for managing the assets of the bequest in such a manner as to provide for the annual award of the Nobel prizes and the operation of the prize-awarding bodies, including the Nobel Committee that selects the Peace Prize. Nobel Foundation Statutes § 14; see also Lemmel (“One vital task of the Foundation is to manage its assets in such a way as to safeguard the financial base of the prizes themselves and of the prize selection process.”). Unlike the other Nobel prizes, for accomplishments in fields such as literature and physics, which are awarded by committees appointed by Swedish institutions, Nobel specified in his will that the recipient of the prize “for champions of peace” was to be selected “by a committee of five persons to be elected by the Norwegian Storting [i.e., the Norwegian Parliament].” Nobel Foundation Statutes § 1. On April 26, 1897, the Storting formally agreed to carry out Nobel’s will and, in August of that year, elected the first members of the Nobel Committee that would award the prize funded by Nobel’s estate. That Committee—not the Storting itself, or any other official institution of the Norwegian government, or the Nobel Foundation—has selected the Peace Prize recipients since 1901. To be sure, in its nascent years, the Nobel Committee was more “closely linked not only to the Norwegian political establishment in general, but also to the Government,” than it is today. See Øyvind Tønnesson, The Norwegian Nobel Committee (1999) (“Tønnes371 33 Op. O.L.C. 370 (2009) son”), http://nobelprize.org/nobel_prizes/peace/articles/committee (last visited Nov. 24, 2009). Indeed, until 1977, the Committee’s official title was the Nobel Committee of the Norwegian Storting. Nevertheless, it has long been recognized that the “[C]ommittee is formally independent even of the Storting, and since 1901 it has repeatedly emphasized its independence.” Id. In 1936, for instance, the Norwegian Foreign Minister and a former Prime Minister recused themselves from the Committee’s deliberations out of concern that bestowing the award on the German pacifist Carl von Ossietzky would be perceived as an act of Norwegian foreign policy. Id.; see also Berlin Protests Ossietzky Award, N.Y. Times, Nov. 26, 1936, at 22 (noting that “Norway [d]enies [r]esponsibility for Nobel [d]ecision”). To make clear the independent nature of the Committee’s decisions, moreover, the Storting in the very next year, 1937, barred government ministers from sitting on the Nobel Committee. See Special Regulations for the Award of the Nobel Peace Prize and the Norwegian Nobel Institute, etc., adopted by the Nobel Committee of the Norwegian Storting on the 10th day of April in the year 1905 (including amendments of 1977, 1991, 1994, 1998 and 2000), § 9, http://nobelprize.org/nobelfoundation/statutes-no. html (last visited Nov. 24, 2009) (“Nobel Peace Prize Regulations”) (“If a member of the [Nobel] Committee is appointed a member of the Government during his period of office, or if a member of the Government is elected a member of the Committee, he shall resign from the Committee for as long as he continues in office as a Minister”). Furthermore, for nearly 36 years, no member of the Committee has been permitted as a general matter to continue serving in the Storting. See Tønnesson (“[I]n 1977 . . . the Storting decided that its members should not participate in nonparliamentary committees appointed by the Storting itself.”). 1 That said, an appointment to the Committee does not appear to require a sitting member of the Storting to resign immediately from his or her government position, and thus two of the current members, who joined the Nobel Committee in 2009, appear to have served on the Storting during much, if not all, of the period during which this year’s Prize recipient was selected. See List of Nobel Committee Members, http://nobelpeaceprize.org/en_GB/ To further emphasize the Committee’s independence from the Norwegian government, including the monarchy, “[u]nlike the prize award ceremony in Stockholm [for the other Nobel Prizes], it is the Chairperson of the Nobel Committee, and not the King [of Norway]” who formally presents the Peace Prize. Tønnesson. 1 372 President’s Receipt of the Nobel Peace Prize nomination_committee/members/ (last visited Dec. 4, 2009). The other three members of the Committee were private individuals. Id. Apart from the Storting’s role in selecting the members of the Nobel Committee, the Norwegian government has no meaningful role in selecting the Prize recipients or financing the Prize itself. In addition to fully funding the Prize, the Sweden-based private Nobel Foundation, established pursuant to Alfred Nobel’s will, is responsible for the Committee’s viability and the administration of the award. Specifically, your Office has informed us that the Committee’s operations, including the salaries of the various Committee members and of the staff, are funded by the Foundation and not by the Norwegian or Swedish governments. See E-mail for David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel, from Virginia R. Canter, Associate Counsel to the President, (Nov. 2, 2009, 19:11 EST) (“Canter E-mail”) (summarizing telephonic interview with Geir Lundestad, Secretary to the Nobel Committee and Director of the Nobel Institute); see also Nobel Foundation Statutes § 11 (“The Board of the Foundation shall establish financial limits on the work that the prize-awarding bodies perform in accordance with these statutes”); id. § 6 (“A member of a Nobel Committee shall receive remuneration for his work, in an amount to be determined by the prize-awarding body [i.e., the Nobel Committee].”). The Committee also deliberates and maintains staff in the Nobel Institute building, which is owned by the private Nobel Foundation rather than by the government of Sweden or Norway. See The Nobel Institute, http://nobelpeaceprize.org/en_GB/ institute/ (last visited Dec. 4, 2009) (noting that Nobel Institute building is also where the recipient of the Peace Prize is announced); see also Description of Nobel Institute Building, http://nobelpeaceprize.org/en_GB/ institute/nobel-building/ (last visited Dec. 4, 2009). Although the Nobel Foundation plays a critical role in sustaining the Nobel Committee and the Peace Prize, it is the Nobel Committee that independently selects the Prize recipients. See Organizational Structure of the Nobel Entities, http:// nobelprize.org/nobelfoundation/org_structure.html (last visited Nov. 24, 2009) (“The Nobel Foundation does not have the right or mandate to influence the nomination and selection procedures of the Nobel Laureates.”); see also Lemmel (“[T]he Prize-Awarding Institutions are not only entirely independent of all government agencies and organizations, but also of the Nobel Foundation.”). 373 33 Op. O.L.C. 370 (2009) II. The Emoluments Clause provides that “no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” U.S. Const. art. I, § 9, cl. 8. Adopted unanimously at the Constitutional Convention, the Emoluments Clause was intended to recognize the “necessity of preserving foreign Ministers & other officers of the U.S. independent of external influence,” specifically, undue influence and corruption by foreign governments. See 2 The Records of the Federal Convention of 1787, at 389 (Max Farrand ed., rev. ed. 1966) (notes of James Madison); see also 3 id. at 327 (“It was thought proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments from foreign states.”) (remarks of Governor Randolph); Applicability of the Emoluments Clause to Non-Government Members of ACUS, 17 Op. O.L.C. 114, 116 (1993) (“ACUS ”); President Reagan’s Ability to Receive Retirement Benefits from the State of California, 5 Op. O.L.C. 187, 188 (1981) (discussing the background of the ratification of the Clause). The President surely “hold[s] an[] Office of Profit or Trust,” and the Peace Prize, including its monetary award, is a “present” or “Emolument . . . of any kind whatever.” U.S. Const. art. I, § 9, cl. 8. The critical question, therefore, concerns the status of the institution that makes the award. Based on the consistent historical practice of the political branches for more than a century with respect to receipt of the Peace Prize by high federal officials, as well as our Office’s precedents interpreting the Emoluments Clause in other contexts, we conclude that the President in accepting the Prize would not be accepting anything from a “foreign State” within the Clause’s meaning. Accordingly, we do not believe that the President’s acceptance of the Peace Prize without congressional consent would violate the Emoluments Clause. A. None of our Office’s precedents concerning the Emoluments Clause specifically considers the status of the Nobel Committee (or the Nobel Foundation), but there is substantial and consistent historical practice of 374 President’s Receipt of the Nobel Peace Prize the political branches that is directly relevant. The President would be far from the first government official holding an “Office of Profit or Trust” to receive the Nobel Peace Prize. Rather, since 1906, there have been at least six federal officers who have accepted the Prize while serving in their elected or appointed offices. The Peace Prize has been received by two other sitting Presidents—Theodore Roosevelt and Woodrow Wilson—by a sitting Vice President, Secretary of State, and Senator, and by a retired General of the Army, 2 with the most recent of these acceptances having occurred in 1973. Throughout this history, we have found no indication that either the Executive or the Legislative Branch thought congressional approval was necessary. The first instance of the Nobel Committee awarding the Peace Prize to a sitting officer occurred only five years after the Committee began awarding the Prize. In 1906, President Theodore Roosevelt received the Peace Prize. 3 On December 10 of that year, United States Minister to Norway Herbert H.D. Pierce accepted the “diploma, medal, and order upon the Nobel trustees [of the Nobel Foundation] for the amount of the prize” on Roosevelt’s behalf. See “Emperor Dead” and Other Historic American Diplomatic Dispatches 336–37 (dispatch from Pierce to Secretary of State Elihu Root) (Peter D. Eicher ed., 1997) (“Pierce Dispatch”). Not only did Roosevelt accept the Peace Prize while President, he also chose as President to use the award money (roughly $37,000) to establish a foundation for the promotion of “industrial peace.” See Oscar S. Straus, Under Four Administrations: From Cleveland to Taft 239–40 (1922) (“Straus”) (noting that Roosevelt transferred the draft of the monetary award to Chief Justice Fuller in January of 1907 to initiate efforts to establish the Foundation). We have found no indication that the President or Congress believed that receipt of the Prize, including its award money, required legislative approval. Although Congress passed legislation to establish Roosevelt’s See Memorandum for the File from Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Proposed Award of Honorary British Knighthood to Retiring Military Officer (Aug. 27, 1996) (retired military officers continue to “hold[] [an] Office of Profit or Trust” under the United States and hence remain subject to the Emoluments Clause); see also 53 Comp. Gen. 753 (1974) (same). 3 See List of Nobel Peace Prize Laureates, http://nobelprize.org/nobel_prizes/peace/ laureates (last visited Nov. 19, 2009). 2 375 33 Op. O.L.C. 370 (2009) foundation, see Act of Mar. 2, 1907, ch. 2558, Pub. L. No. 59-217, 34 Stat. 1241, it did so some months after he accepted the Peace Prize, and we think it clear that neither the President nor Congress thought this law necessary to satisfy the Emoluments Clause. 4 The bill that established the trust said nothing about consent even though Congress assuredly knew how to express such legislative approval for Emoluments Clause purposes. For instance, the same Congress that established the foundation at Roosevelt’s request also “authorized [Professor Simon Newcomb, a retired Naval Officer] to accept the decoration of the order ‘Pour le Mérite, für Wissenschaftern und Kunste,’ conferred upon him by the German Emperor,” Act of Mar. 30, 1906, ch. 1353, Priv. Res. No. 591280, 34 Stat. 1713, 1713, and granted “[p]ermission . . . to [a Navy RearAdmiral] . . . to accept the China war medal, with Pekin clasp, tendered to him by the King of Great Britain, and the Order of the Red Eagle, with swords, tendered to him by the Emperor of Germany,” Act of Mar. 4, 1907, Priv. Res., 34 Stat. 2825, 2825 (S.J. Res. 98, 59th Cong.). 5 4 Consistent with this understanding of the congressional action, the bill establishing the foundation was modeled after documents creating trusts, see Straus at 239, and not statutes conferring legislative consent to officers’ receipt of gifts from foreign states. Further, the statute’s legislative history contains no indication that the bill was intended to ratify Roosevelt’s acceptance of a gift from a foreign power; nor does it indicate that his acceptance of the Prize without congressional consent was inappropriate. See S. Rep. No. 59-7283 (1907); see also 41 Cong. Rec. 4113 (1907) (“There can be no possible objection [to the bill]. It establishes trustees, who are to receive from the President the Nobel prize for the foundation of a society for the promotion of industrial peace.”) (statement of Sen. Lodge). Ultimately, the Foundation never expended any funds, and in July of 1918, Congress dissolved the trust. See Act of July 12, 1918, ch. 150, Pub. Res. No. 65-37, 40 Stat. 899 (H.J. Res. 313) (“Joint Resolution Providing for the disposition of moneys represented in the Alfred Bernard Nobel peace prize, awarded in nineteen hundred and six”). Roosevelt then distributed the Nobel Prize money, along with the interest it had accrued, to various charities in the United States and Europe. See Straus at 241. 5 See also, e.g., Act of Apr. 2, 1896, Priv. Res. No. 54-39, 29 Stat. 759, 759 (“authoriz[ing]” President Harrison “to accept certain medals presented to him by the Governments of Brazil and Spain during the term of his service as President of the United States”); Act of Apr. 20, 1871, Priv. Res. No. 42-4, 17 Stat. 643, 643 (“[C]onsent of Congress is hereby given to . . . [the] secretary of the Smithsonian Institution, to accept the title and regalia of a commander of the Royal Norwegian Order of St. Olaf, conferred upon him for his distinguished scientific service and character by the King of Sweden and Norway”); Act of Mar. 3, 1865, Priv. Res. No. 38-39, 13 Stat. 604, 604 (Navy Captain “authorized to accept the sword of honor recently presented to him by the government of 376 President’s Receipt of the Nobel Peace Prize Perhaps most importantly, the statute that established the foundation to administer the prize money that Roosevelt had accepted does not address at all Roosevelt’s receipt of the gold medal and diploma. Yet the medal and the diploma have always constituted elements of the Peace Prize, see Pierce Dispatch at 337 (noting receipt of Nobel medal); see also Nobel Lecture of President Roosevelt (May 5, 1910), http://nobelprize.org/ nobel_prizes/peace/laureates/1906/roosevelt-lecture.html (last visited Nov. 23, 2009) (“The gold medal which formed part of the prize I shall always keep, and I shall hand it on to my children as a precious heirloom.”), and they constitute a “present” or “Emolument . . . of any kind whatever” within the meaning of the Emoluments Clause. Thus, if the law establishing the trust to be funded by the award money had been intended to provide congressional consent for President Roosevelt’s receipt of the Prize, it would presumably have encompassed these elements of the Prize as well. The example more than a decade later of President Wilson also clearly reflects an understanding by the political branches that receipt of the Peace Prize does not implicate the Emoluments Clause. When, in December of 1920, President Wilson received the Peace Prize, he, unlike President Roosevelt, did not seek to donate the Prize proceeds to a charitable cause or enlist Congress’s aid in accomplishing such a charitable purpose. Instead, he simply accepted the Prize and deposited the award money in a personal account in a Swedish bank, apparently hoping for a favorable movement in the Kroner/dollar exchange rate. See 67 The Papers of Woodrow Wilson 51–52 (Arthur S. Link ed., 1992) (diary of Charles Lee Swem). President Wilson does not appear to have sought congressional approval for his acceptance, nor does it appear that Congress thought its consent was required. These Presidents are not, as indicated above, the only federal officers who have received the Peace Prize. Senator Elihu Root in 1913, Vice President Charles Dawes in 1926, retired General of the Army George Marshall in 1953, and Secretary of State Henry Kissinger in 1973 each received the Nobel Peace Prize. See List of Nobel Peace Prize Laureates, Great Britain”); Act of June 29, 1854, Priv. Res. No. 33-14, 10 Stat. 830, 830 (“authoriz[ing] . . . accept[ance of ] a gold medal recently presented . . . by His Majesty the King of Sweden”). 377 33 Op. O.L.C. 370 (2009) supra note 3. As was the case with Presidents Roosevelt and Wilson, none of these recipients, as far as we are aware, received congressional consent prior to accepting the Prize or congressional ratification of such receipt at any time thereafter. This longstanding treatment of the Nobel Peace Prize is particularly significant to our analysis because several of the Prizes were awarded when the Nobel Committee—then known as the Nobel Committee of the Norwegian Storting—lacked some of the structural barriers to governmental control that are present today, such as rules generally barring government ministers and legislators from serving on the Committee. If anything, then, these prior cases arguably would cause more reason for concern than would be present today, and yet the historical record reveals no indication that either the Congress or the Executive believed receipt of the Prize implicated the Emoluments Clause at all. The absence of such evidence is particularly noteworthy since the Clause was recognized as a bar to gifts by foreign states without congressional consent throughout this same period of time, such that the Attorney General and this Office advised that various gifts from foreign states could not be accepted, see, e.g., Gifts from Foreign Prince, 24 Op. Att’y Gen. 116, 118 (1902), and Congress passed legislation specifically manifesting its consent to some gifts bestowed by foreign states on individuals covered by the Clause. See supra note 5. To be sure, this long, unbroken practice of high federal officials accepting the Nobel Peace Prize without congressional consent cannot dictate the outcome of our constitutional analysis. But we do think such practice strongly supports the conclusion that the President’s receipt of the Nobel Peace Prize would not conflict with the Emoluments Clause, as it may fairly be said to reflect an established understanding of what constitutes a gift from a “foreign State” that would trigger application of the Clause’s prohibition. Cf. Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 415 (2003) (analyzing President’s foreign affairs power under the Constitution in light of “longstanding practice” in Executive Branch and congressional silence); Dames & Moore v. Regan, 453 U.S. 654, 686 (1981) (noting that a “‘systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned . . . may be treated as a gloss on’” the Constitution); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring) (“Deeply embedded traditional ways of conducting government cannot 378 President’s Receipt of the Nobel Peace Prize supplant the Constitution or legislation, but they give meaning to the words of a text or supply them.”); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 315, 401 (1819) (where “the great principles of liberty are not concerned . . . [a doubtful question,] if not put at rest by the practice of the government, ought to receive a considerable impression from that practice”). B. The precedents of our Office reinforce the constitutional conclusion that the historical practice recounted above strongly suggests. Indeed, our Office’s numerous opinions on the Emoluments Clause have never adverted to the receipt of the Peace Prize by government officials and certainly have never suggested that the numerous acceptances of the Prize were contrary to the Clause. That is not surprising. Under these same opinions, it is clear that, due to the unique organization of the Nobel Committee (including its reliance on the privately endowed Nobel Foundation), Nobel Peace Prize recipients do not receive presents or emoluments from a “foreign State” for purposes of the Emoluments Clause. The precedents of the Office do establish that the Emoluments Clause reaches not only “foreign State[s]” as such but also their instrumentalities. ACUS, 17 Op. O.L.C. at 122; Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. 13, 18 (1994) (“Public Universities”). Quite clearly, the Nobel Committee is not itself a foreign state in any traditional sense. The issue, therefore, is whether the Committee has the kind of ties to a foreign government that would make it, and by extension the Nobel Foundation in financing the Prize, an instrumentality of a foreign state under our precedents. Our past opinions make clear that an entity need not engage specifically in “political, military, or diplomatic functions” to be deemed an instrumentality of a foreign state. 6 See Public Universities, 18 Op. O.L.C. Accordingly, we have explained that corporations owned or controlled by a foreign government are presumptively foreign states under the Emoluments Clause, even though the Act of State doctrine suggests that “when foreign governments act in their commercial capacities, they do not exercise powers peculiar to sovereigns,” and thus are not entitled to the immunity from suit that might be available. ACUS, 17 Op. O.L.C. at 120 6 379 33 Op. O.L.C. 370 (2009) at 19; see also ACUS, 17 Op. O.L.C. at 122 (“[T]he language of the Emoluments Clause does not warrant any distinction between the various capacities in which a foreign State may act.”). Thus, for example, we have determined that entities such as corporations owned or controlled by a foreign government and foreign public universities may fall within the prohibition of the Clause. ACUS, 17 Op. O.L.C. at 121–22. To determine whether a particular case involves receipt of a present or emolument from a foreign state, however, our Office has closely examined the particular facts at hand. Specifically, we have sought to determine from those facts whether the entity in question is sufficiently independent of the foreign government to which it is arguably tied— specifically with respect to the conferral of the emolument or present at issue, e.g., hiring an employee or bestowing an award, Public Universities, 18 Op. O.L.C. at 20—that its actions cannot be deemed to be those of that foreign state. In short, our opinions reflect a consistent focus on whether an entity’s decision to confer a particular present or emolument is subject to governmental control or influence. 7 The factors we have considered include whether a government is the substantial source of funding for the entity, see, e.g., Applicability of Emoluments Clause to Proposed Service of Government Employee on Commission of International Historians, 11 Op. O.L.C. 89, 90 (1987) (“International Historians”); whether a government, as opposed to a private intermediary, makes the ultimate decision regarding the gift or emolument, see, e.g., Memorandum for John G. Gaine, General Counsel, Commodity Futures Trading Commission, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Expense Reimbursement in Connection with Trip to Indonesia (Aug. 11, 1980) (“Trip to Indonesia”); and whether a government has an active role in the management of the entity, such as through having government officials serve on an entity’s board of directors, see, e.g., Public Universities, 18 Op. O.L.C. (“[N]othing in the text of the Emoluments Clause limits its application solely to foreign governments acting as sovereigns.”). 7 Where a foreign state indisputably and directly confers a present or emolument, such considerations of autonomy and control may be relevant, but not decisive. See ACUS, 17 Op. O.L.C. at 119. Here, however, the critical issue is whether the Nobel Committee, and by extension the Nobel Foundation, is an instrumentality of a foreign government for purposes of awarding the privately endowed Peace Prize. 380 President’s Receipt of the Nobel Peace Prize at 15. No one of these factors has proven dispositive in our prior consideration of Emoluments Clause issues. Rather, we have looked to them in combination to assess the status of the entity for purposes of the Clause, keeping in mind at all times the underlying purpose that the Clause is intended to serve. See, e.g., Memorandum for H. Gerald Staub, Office of Chief Counsel, National Aeronautics and Space Administration, from Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal Counsel, Re: Emoluments Clause Questions Raised by NASA Scientist’s Proposed Consulting Arrangement with the University of New South Wales (May 23, 1986) (“given [foreign public university’s] functional and operational separation and independence from the government of Australia and state political instrumentalities . . . [t]he answer to the Emoluments Clause question . . . must depend [on] whether the consultancy would raise the kind of concern (viz., the potential for ‘corruption and foreign influence’) that motivated the Framers in enacting the constitutional prohibition”). Consistent with this analysis, we have concluded in the past that Emoluments Clause concerns are raised where the “ultimate control” over the decision at issue—e.g., an employment decision or a decision to bestow an award—resides with the foreign government. For instance, an employee of the Nuclear Regulatory Commission (“NRC”) sought authorization to work for a consulting firm that was retained by the Mexican government. Application of the Emoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 158 (1982). Because we concluded that the “ultimate control, including selection of personnel, remains with the Mexican government,” id. (“the retention of the NRC employee by the consulting firm appears to be the principal reason for selection of the consulting firm by the Mexican government”), we determined that the Emoluments Clause barred the arrangement. Similarly, we concluded that an invitation to join a commission of international historians that was established and funded entirely by the Austrian government constituted an invitation from the Austrian government itself. International Historians, 11 Op. O.L.C. at 90. By contrast, although we have previously opined that foreign public universities are presumptively instrumentalities of a foreign state for the purposes of the Emoluments Clause, we determined that two NASA scientists on leave without pay could be employed by the University of 381 33 Op. O.L.C. 370 (2009) Victoria in British Columbia, Canada, without triggering that constitutional restraint. Public Universities, 18 Op. O.L.C. at 13. We came to this conclusion because the evidence demonstrated that the University acted independently of the Canadian (or the British Columbian) government when making faculty employment decisions. Id. at 15 (“[T]he University of Victoria should not be considered a foreign state.”). To be sure, as we acknowledged, the University was under the formal control of the British Columbia government. Id. at 20 (noting that the government had “ultimate” control of the University); see also id. at 15 (noting that the faculty was “constituted” by the University’s Board of Governors, the majority of whom were appointed by the provincial government). Nevertheless, it was critical to our analysis that the specific conduct at issue—the University’s selection of faculty—was not made by the University “under statutory compulsion” or pursuant to the “dictates of the government.” Id. at 20–21 (quoting McKinney v. Univ. of Guelph, [1990] 3 S.C.R. 229, 269 (Can.) (plurality op.)). Similar considerations of autonomy informed our view that a federal officer could serve as a consultant to Harvard University on a project funded by the government of Indonesia. See Trip to Indonesia at 5. Although the consulting services were to be rendered for the benefit of Indonesia and the individual consultant’s expenses were to be reimbursed by Harvard from funds paid by Indonesia, we identified no violation of the Emoluments Clause. We reached this conclusion in significant part because, under the consulting arrangement, Harvard had the sole discretion over the consultants it chose, and Indonesia had no veto power over those choices. Id. (“Since . . . the foreign government neither controls nor even influences the selection and payment of consultants, the Emoluments Clause is not implicated.”). In light of these precedents, we believe that it is significant that the Nobel Committee’s selection of the Peace Prize recipient is independent of the dictate or influence of the Norwegian government. As far as we are aware, the Norwegian government has no authority to compel the Committee to choose the Prize recipient; nor does it have any veto authority with respect to the selection by the Committee members, who, in any event, are not appointed by a single official to whom they are accountable, but are instead elected by the multimember Storting. See Nobel Foundation Statutes § 1. To be sure, Norwegian government officials may 382 President’s Receipt of the Nobel Peace Prize submit nominations to the Committee, but that opportunity is shared by any “[m]embers of national assemblies and governments of states,” along with “University rectors” and “professors of social sciences, history, philosophy, law and theology.” Nobel Peace Prize Regulations § 3. Indeed, the formal process of nomination and selection of a Prize recipient is not guided by the government, but by the private, Sweden-based Nobel Foundation and the Nobel Committee. 8 For example, pursuant to the Foundation’s rules, no prize-awarding body, including the Peace Prize Committee, may reveal the details of its deliberations “until at least 50 years have elapsed after the date on which the decision in question was made.” Nobel Foundation Statutes § 10. We have found no indication that the Norwegian government or its officials, if requesting such information, would be exempt from this restraint on disclosure. Other aspects of the selection process, including guidelines on nominations and supporting materials, are either provided in the private Foundation’s statutes or delegated by the Foundation—not by the Norwegian government—to the prize-awarding bodies, including the Peace Prize Committee. E.g., id. § 7 (“To be considered eligible for an award, it is necessary to be nominated in writing by a person competent to make such a nomination.”). These formal limits on the capacity of the Norwegian government to influence, let alone control, the Committee’s decision, are consistent with the Committee’s own repeated assertions of its independence. See Tønnesson. The Government of Norway’s financial connection to the Nobel Committee is even more attenuated. It appears that the members of the Nobel Committee are compensated for their services by the privately funded Nobel Foundation, see Canter E-mail, and the precise amount of the remuneration is set by the Nobel Committee, not the Norwegian government. See Nobel Foundation Statutes § 6. The Peace Prize itself, including The Storting appears to have the limited authority only to approve “[i]nstructions concerning the election of members of the Nobel Committee” itself. See Nobel Foundation Regulations § 9. Any other amendments to the Committee’s rules of operation, including its award selection guidelines, are decided upon by the Committee itself, after views are solicited from the Nobel Foundation. Id. (“Proposals for amendments to other provisions of these regulations may be put forward by members of the Norwegian Nobel Committee or by members of the Board of Directors of the Nobel Foundation. Before the Norwegian Nobel Committee makes a decision concerning the proposal, it shall be submitted to the Board of Directors of the Nobel Foundation for an opinion.”). 8 383 33 Op. O.L.C. 370 (2009) its cash award and other elements, is funded by the Nobel Foundation, which alone is responsible for ensuring that all of the Nobel prizeawarding bodies can accomplish their purposes and which is itself financed by private investments and not government funding. Id. § 14 (“The Board [of the Foundation] shall administer the property of the Foundation for the purposes of maintaining good long-term prizeawarding capacity and safeguarding the value of the Foundation’s assets in real terms.”); see also The Nobel Foundation’s Income Statement (2008), http://nobelprize.org/nobelfoundation/incomes.html (last visited Dec. 7, 2009); Lemmel (describing Nobel Foundation’s investment strategies to ensure financial base of Nobel Prizes). Thus, in our view, the only potentially relevant tie to the Norwegian government is that, in accordance with Alfred Nobel’s will, the Storting elects the Nobel Committee’s five members. Further, we are aware that, notwithstanding the rules generally barring sitting members of the Storting from the Nobel Committee, two members of the Storting served on the Committee for several months before leaving their parliamentary seats. However, in light of the strong basis for the Committee’s autonomy, both as to the decision it makes and the finances upon which it draws, we do not view the Storting’s appointment authority, or a minority of the Committee members’ short-term overlap with parliamentary service, as having dispositive significance. Nor has our Office done so in the past in analogous cases. In determining that an award to a Navy scientist from the Alexander von Humboldt Foundation was from the German government for the purposes of the Emoluments Clause, for example, we noted that the “awards are made by a ‘Special Committee,’ on which the Federal Ministries for Foreign Affairs and Research and Technology are represented.” See Letter for Walter T. Skallerup, Jr., General Counsel, Department of the Navy, from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel at 2 (Mar. 17, 1983). But we did not indicate that the presence of the government ministers on the award committee was the decisive factor in our analysis. Instead, we also noted that the Foundation was reestablished (because it had once been dissolved) by the Federal Republic of Germany, specifically by its Ministry of Foreign Affairs. In addition, we noted that the Foundation that administered the award was financed mainly through annual payments from the West German government. See id. By contrast, 384 President’s Receipt of the Nobel Peace Prize the Nobel Committee is financed by the private Nobel Foundation, and although the Norwegian government may have formally established the Committee (as the “Nobel Committee of the Norwegian Storting”), it did so pursuant to a private individual’s will, which assigned the Storting the limited role of electing the Committee’s members, who would be charged with exercising their independent judgments. Likewise, we concluded that the University of British Columbia in hiring faculty was not acting as a foreign state for the purposes of the Emoluments Clause—notwithstanding the provincial government’s power to appoint a majority of the members of the University’s board of governors. Public Universities, 18 Op. O.L.C. at 14, 22 (citing Harrison v. Univ. of British Columbia, [1990] 3 S.C.R. 451, 459 (Can.) (plurality op.)). We also determined that the Prince Mahidol Foundation was not an instrumentality of the Government of Thailand for the purposes of the Emoluments Clause, although several officials of the Thai government and the Royal Princess of Thailand sat on the Foundation’s board. Memorandum for the File from Daniel L. Koffsky, Office of Legal Counsel, Re: Application of the Emoluments Clause to a U.S. Government Employee Who Performs Services for the Prince Mahidol Foundation (Nov. 19, 2002) (“Prince Mahidol Foundation”). 9 In each case, we found countervailing indications of autonomy to be more significant. As noted above, we concluded that the University of British Columbia’s faculty decisions, including contract negotiations and collective bargaining, were not subject to governmental compulsion. Public Universities, 18 Op. O.L.C. at 20–21 (noting University’s “‘legal autonomy’”). And despite the presence of the Thai government and royalty, we determined that the decision-making process of the Prince Mahidol Foundation’s Board evidenced “independ9 Similarly, the Supreme Court has indicated that a government’s appointment authority is not given dispositive weight in determining whether a nominally private entity is, in fact, “what the Constitution regards as the Government.” See Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 392 (1995) (holding that Amtrak was a state actor subject to the First Amendment). That the federal government appointed a majority of Amtrak’s directors was not considered to be of controlling importance. As the Lebron Court observed, the Consolidated Rail Corporation (“Conrail”) was held “not to be a federal instrumentality, despite the President’s power to appoint, directly or indirectly, 8 of its 15 directors.” Id. at 399; see also Regional Rail Reorganization Act Cases, 419 U.S. 102, 152 (1974) (“Conrail is not a federal instrumentality by reason of the federal representation on its board of directors.”). 385 33 Op. O.L.C. 370 (2009) ent judgment.” Prince Mahidol Foundation at 4 (also noting that “most of the funds for the Foundation do not come from the [Thai] government”). These same considerations concerning the exercise of independent judgment and financial autonomy are at least as present here. In sum, determining whether an entity is an instrumentality of a foreign government is necessarily a fact-bound inquiry, see Application of the Emoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 158 (1982) (“Each situation must . . . be judged on its facts.”), and the weight of the evidence in light of this Office’s consistent precedents—and as reinforced by the substantial historical practice—demonstrates that the awarding of the privately financed Peace Prize through the Nobel Committee does not constitute the conferral of a present or emolument by a “foreign State” for the purposes of the Emoluments Clause. III. Our reasoning regarding the Emoluments Clause is equally applicable to the Foreign Gifts and Decorations Act. The Act provides express consent for officials to accept “gifts and decorations” from “foreign government[s]” under certain limited circumstances not present here. See 5 U.S.C. § 7342(b) (2006) (“An employee may not . . . accept a gift or decoration, other than in accordance with the provisions of” the Act); see also id. § 7342(a)(1)(E) (providing that the President is subject to the Act). Section 7342(a)(2) defines the term “foreign government” as follows: “foreign government” means— (A) any unit of foreign governmental authority, including any foreign national, State, local, and municipal government; (B) any international or multinational organization whose membership is composed of any unit of foreign government described in subparagraph (A); and (C) any agent or representative of any such unit or such organization, while acting as such. While we do not necessarily assume that Congress intended the meaning of “foreign government” to be coextensive with the constitutional 386 President’s Receipt of the Nobel Peace Prize term “foreign State,” we have recognized that the Act’s reference to “any unit of foreign governmental authority” is likely narrower in scope than the Emoluments Clause. See ACUS, 17 Op. O.L.C. at 121 (recognizing that corporations owned or controlled by foreign States are arguably not “units of foreign governmental authority,” although they are presumptively subject to the Emoluments Clause); cf. S. Rep. No. 95-194, at 29 (1977) (definition of “foreign government” intended to reach “foreign governmental subdivision(s)” and “quasi-government organizations”). For the reasons discussed in detail above, the Nobel Committee in choosing the recipients of the Peace Prize, like the Nobel Foundation in financing the Prize, operates as a private non-governmental organization and not as a “unit” of a foreign government. Moreover, given the Foundation’s private nature and the facts that the Committee acts independently of any government and is not required to include any government officials on it, see The Norwegian Nobel Committee, http://nobelprize.org/prize_awarders/ peace/committee.html (last visited Nov. 23, 2009) (“Although this is not a requirement, all committee members have been Norwegian nationals.”), we conclude that neither is an “international or multinational organization” because neither is “composed of any unit of foreign government,” let alone composed of units of more than one foreign government. 5 U.S.C. § 7342(a)(2)(B); see also Emoluments Clause and World Bank, 25 Op. O.L.C. 113, 117 (2001) (concluding that international organizations of which the United States is a member are not generally subject to the Emoluments Clause and observing that the Act’s coverage of international organizations was likely “motivated by policy concerns as opposed to constitutional ones”). Nor is the Committee as a whole, or, by extension, the Nobel Foundation in financing the Prize, an “agent or representative” of any unit of a foreign government or any international organization for purposes of the Act. Although two members of the Committee continued to serve in the Storting before leaving their parliamentary seats, we do not believe this limited tie between the Government of Norway and the Committee, affecting a minority of the Committee’s members, transformed the Nobel Committee into an agent or representative of the Norwegian Government. Id. § 7342(a)(2)(C). The countervailing indications of autonomy described above support that conclusion. Consequently, the Foreign Gifts and Decorations Act poses no bar to the President’s receipt of the Peace Prize. 387 33 Op. O.L.C. 370 (2009) IV. For the reasons given above, we conclude that neither the Emoluments Clause nor the Foreign Gifts and Decorations Act prohibits the President from receiving the Nobel Peace Prize without congressional consent. DAVID J. BARRON Acting Assistant Attorney General Office of Legal Counsel 388

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Constitutionality of Nuclear Regulatory Commission’s Imposition of Civil Penalties on the Air Force In the absence of Presidential intervention to review its decision, the Nuclear Regulatory Commission may constitutionally issue an order imposing civil penalties on the Department of the Air Force under the Atomic Energy Act of 1954. Although Congress may not deprive the President of an opportunity to review a decision made by an agency subject to his supervisory authority, the President is not constitu­ tionally required to review all such decisions before they may be lawfully implemented. Because the Atomic Energy Act gives the Attorney General exclusive authonty and discre­ tion to enforce civil penalties imposed under the Act, an interagency dispute regarding the collection of such penalties would properly be resolved within the executive branch rather than through interagency litigation. June 8, 1989 M em orandum O pinio n fo r t h e G en er a l C o un sel D epa r tm en t o f th e A ir F o rce This memorandum responds to your request for an opinion of this Office on the constitutionality of the United States Nuclear Regulatory Commission’s (“NRC”) imposition of civil penalties on the Department of the Air Force under the Atomic Energy Act of 1954, as amended (“Act”), 42 U.S.C. §§ 2011-2296. In particular, you have asked whether the Constitution permits the NRC: 1) to issue an order imposing civil penal­ ties against the Air Force without a prior opportunity for the Air Force to contest the fine within the executive branch; or 2) to collect civil penal­ ties against the Air Force by litigation in court. We believe, as a general matter, that the President has authority to review and revise decisions of his subordinates in the executive branch. Although the President cannot be deprived of the opportunity to review a decision subject to his supervisory authority, this does not mean that the President is constitutionally compelled to review every decision before it is implemented. After reviewing the questions you have posed, we conclude that, because the President has expressed no interest in reviewing either personally or through a delegate the NRC’s issuance of orders, we need not reach whether, and to what extent, the President’s supervisory authority extends to orders issued by the NRC.1On the other hand, we agree with you that there would be significant constitutional 131 problems had Congress directed the NRC to collect the penalties it orders by suing the Air Force in federal court. The Act, however, permits the Attorney General to determine whether, and to what extent, civil penal­ ties should be collected. Thus, any issue regarding your liability for civil penalties may be resolved by an executive branch agency and without resort to interagency litigation. I. Background The Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2296, as amended by the Energy Reorganization Act of 1974, 42 U.S.C. §§ 5801-5851, estab­ lished the Nuclear Regulatory Commission (“NRC”). The agency is charged with broad licensing and regulatory authority over the develop­ ment and utilization of atomic energy, the construction and maintenance of facilities, and the uses and storage of nuclear material. 42 U.S.C. §§ 2061-2064 (ownership and acquisition of production facilities); 42 U.S.C. §§ 2071-2078, 2091-2099, and 2111-2114 (regulation of nuclear materials and byproducts); 42 U.S.C. §§ 2131-2140 Oicensing); 42 U.S.C. §§ 22012213 (general powers and duties). The Act provides that Commissioners are appointed by the President, with the advice and consent of the Senate, and “may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.” 42 U.S.C. § 5841(a), (e). The Act invests the NRC with broad authority to regulate uses of nuclear power, with certain exceptions for military purposes expressly provided for in the Act.2Specifically, the NRC has the authority to license nuclear facilities and material, id. §§ 2133, 2073, including those of gov­ ernment agencies, id. § 2014(s); to issue rules and regulations, id. § 2201; and to inspect and investigate alleged violations of its rules, id. In 1969, Congress passed amendments to the Atomic Energy Act autho­ rizing the NRC to levy civil monetary penalties for violations of its regu­ lations. The addition of monetary penalties was intended to give the NRC additional flexibility to deal with infractions of regulations that did not require the harsher sanctions of revocation or suspension of a license or 1The Air Force does not argue that all actions by the NRC are unconstitutional because of the NRC’s status as an agency with some statutory independence We thus do not address the constitutional status of the NRC or the constitutionality of its actions generally. 2 The President is authorized by the Act to require the Commission to deliver nuclear material and to authorize its use for military purposes: The President from time to time may direct the Commission (1) to deliver such quantities of special nuclear material or atomic weapons to the Department of Defense for such use as he deems necessary in the interest o f national defense, or (2) to authorize the Department of Defense to manufacture, produce, or acquire any atomic weapon or utilization facility for military purposes: Provided, however, That such authorization shall not extend to the pro­ duction of special nuclear material other than that incidental to the operation of such uti­ lization facilities 42 U S C. § 2121(b). A license is not required for any actions authorized under section 2121. See 42 U.S C. § 2140(b). 132 a cease and desist order. See S. Rep. No. 553, 91st Cong., 1st Sess. 9-12 (1969), reprinted in 1969 U.S.C.C.A.N. 1607, 1615-19.3 Section 2282(a) provides: Any person who (1) violates any licensing provision ... or any rule, regulation, or order issued thereunder, or any term, condition, or limitation of any license issued thereun­ der, or (2) commits any violation for which a license may be revoked under section 2236 of this title, shall be subject to a civil penalty, to be imposed by the Commission, of not to exceed $100,000 for each such violation. If any violation is a continuing one, each day of such violation shall constitute a separate violation for the purpose of computing the applicable civil penalty. The Commission shall have the power to compromise, mitigate or remit such penalties. 42 U.S.C. § 2282(a). The term “person” is defined specifically to include government agencies: The term “person” means (1) any individual, corporation, partnership, firm, association, trust, estate, public or pri­ vate institution, group, Government agency other than the Commission .... 42 U.S.C. § 2014(s). “Government Agency” includes any executive depart­ ment of the United States. 42 U.S.C. § 2014(1). Whenever the Commission has reason to believe that a violation sub­ ject to a civil penalty has occurred, the Commission is required to notify the person, identify the alleged violation, advise the person of the pro­ posed penalty, and provide an opportunity to demonstrate why the penal­ ty should not be imposed. 42 U.S.C. § 2282(b). The Commission has for­ mally adopted procedures for the imposition of civil penalties. See 10 C.F.R. § 2.205; 10 C.F.R. pt. 2, app. C. (1988). Under these provisions, the person charged with a civil penalty will receive a written notice of viola­ tion specifying the date and nature of the alleged violation, the particular provision, rule, or regulation allegedly violated, and the amount of the proposed penalty. 10 C.F.R. § 2.2.01(a). Payment of the penalty or a writ­ ten answer either denying the violation or showing extenuating circum­ stances is required within twenty days. Id. § 2.201(a), (b). The NRC may, at this time, issue an order dismissing, mitigating or imposing a civil penalty. The person charged may then request a hearing at which the 3 In 1980, the maximum penalty for each violation was raised from $5000 to $100,000 to provide the NRC with escalated enforcement sanctions and a greater prospect of deterrence Pub L No. 96-295, 94 Stat. 780, 787 (1980). 133 merits of the alleged violation and the applicability of the rules and regu­ lations can be contested. Id. § 2.205(c), (d). After the hearing, the Com­ mission will issue an order dismissing, mitigating, or imposing the civil penalty. Id. § 2.205(f).4 The Commission, however, does not itself have authority directly to collect the amount of the penalty assessed if the violator fails to pay the fine upon issuance of a final order. Instead, the Act permits the NRC to refer the matter to the Attorney General for collection. Section 2282(c) provides: On the request of the Commission, the Attorney General is authorized to institute a civil action to collect a penalty imposed pursuant to this section. The Attorney General shall have the exclusive power to compromise, mitigate, or remit such civil penalties as are referred to him for collection. 42 U.S.C. § 2282(c). The Senate Report accompanying the civil penalty provisions makes clear that the Attorney General is authorized, but not required, to institute a civil action to collect the penalty: While the bill would confer on the Commission the power of compromise, mitigation, and remission of penalties, such power would reside exclusively with the Attorney General under the bill with respect to such civil penalties as are referred by the AEC to him for collection. S. Rep. No. 553, 91st Cong., 1st Sess. 11 (1969), reprinted in 1969 U.S.C.C.A.N. 1607, 1618. In 1980, the NRC requested authority to collect civil penalties directly, but Congress refused to change the law.5 4 The NRC assesses civil penalties based in part on the seventy of the violation. See 10 C.FR § 2 205 and 10 C.F.R pt. 2, app C (1988). Violations for which civil penalties can be imposed are broken down into five seventy levels, and in determining the amount of the violation, the Commission will take into account such factors as whether the violation was identified by the licensee, whether it was reported by the licensee, the corrective action taken, and whether the violation or similar violations have been recurnng. See 10 C.F.R. pt. 2, app C. 6See S Rep. No. 176, 96th Cong , 1st Sess. 24 (1980), reprinted in 1980 U.S.C C.A N. 2216, 2239 The Commission also requested that it be given the authority to administratively impose and collect penalties without the opportunity for de novo trial before a Federal Distnct Court. According to the Comnussion, the present system of imposing and collecting a civil penalty through action of the Attorney General in Federal district court denies the Commission full control of its enforcement action, and raises the possibility that the Attorney General will settle the action for a lower penalty than that sought by NRC. The Commission recognizes, however, that the present enforcement approach, including the opportunity for de novo trial, is typical for Federal agencies Further, the Commission has failed to identify any instances in which the present approach has resulted in a significant weakening of the enforcement action proposed by NRC The committee believes that there is considerable value in retaining the existing approach .... Accordingly, the committee recommends that the present statutory mechanism for imposing and correcting civil penalties be retamed 134 Under its section 2282 authority to impose civil penalties, the NRC sent the Air Force a Notice of Violation and Proposed Imposition of Civil Penalties of $102,500 on June 17, 1988. The alleged violation arose from the accidental spill in 1986 of radioactive materials from a barrel stored on Wright-Patterson Air Force Base, Ohio. The penalty was proposed because of the alleged failure of the Air Force personnel to adequately report the spill to the NRC. The Air Force replied to the alleged violation with a written response on July 15, 1988. Air Force officials had an extended meeting with the NRC at which they contested the underlying factual basis for the charges. The principal factual disagreement is whether and to what extent certain Air Force personnel were involved in a deliberate or willful failure to report the spill. The Air Force has not participated in internal adminis­ trative hearings before the NRC, but has instead raised constitutional defenses, asserting both that the NRC cannot constitutionally issue a final order assessing a penalty without prior review by the President and that in any event the penalty cannot be enforced by the Attorney General through litigation. The NRC has agreed to hold its final order in abeyance pending our resolution of these issues. II. Imposition of Civil Penalties Against Federal Agencies The Air Force contends that the Constitution does not permit the NRC unilaterally to impose civil penalties against a member of the executive branch because both the NRC and the Air Force are “part of one of the three fundamental Branches of the Government under our Constitution.” Letter for Douglas W. Kmiec, Assistant Attorney General, Office of Legal Counsel, from Ann N. Foreman, General Counsel, Department of the Air Force at 3 (Mar. 17, 1989) (“Foreman Letter”). Underlying this contention is the Air Force’s view that “[t]he President is the final arbiter of a singu­ lar executive branch policy and of how any dispute between agencies will be resolved.” Id. The Air Force concludes from this premise that the NRC cannot constitutionally issue a final order against the Air Force until the President resolves any differences between the two agencies. Although we agree as a general matter with the premise underlying the Air Force’s argument — namely that the President must have an oppor­ tunity to review disputes between members of the executive branch — we disagree with its conclusion that the President is affirmatively com­ pelled to resolve this dispute between the NRC and itself. In our view, the President may permit the NRC to carry out a decision taken pursuant to its statutory duties despite the objection of another agency. The President’s authority to review and revise the decisions of his subordinates derives from his authority under Article II of the Constitution, which states that “[t]he executive Power shall be vested in a President of the United States of America.” U.S. Const, art. II, § 1, cl. 135 1. Moreover, the President has the constitutional responsibility to “take Care that the Laws be faithfully executed.” Id. § 3. It is well-established that these provisions generally authorize the President to supervise and guide executive officers in the administration of their statutory duties. See Myers v. United States, 272 U.S. 52, 135 (1926) (The President has the authority to “supervise and guide” executive officers in “their con­ struction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which Article II of the Constitution evidently contemplated in vesting general executive power in the President alone.”). Although the President m ay take the opportunity to review decisions pursuant to his Article II authority, Article II does not mandate that he undertake such review. Thus, the President’s subordinates may make decisions pursuant to the statutory duties that Congress has entrusted to their respective offices even in the absence of the President’s actual review of those decisions so long as the President is not precluded from the opportunity to review these decisions. This understanding of the President’s supervisory authority comports with the practical reality of decisionmaking within the executive branch: day-to-day decisions are often made by the President’s subordinates although the President does not review these decisions. The President’s authority to review disputes between his subordinates is simply an aspect of his general supervisory authority over the execu­ tive branch. For instance, when two of his subordinates dispute the meaning of a statute, the President may decide to review the matter. The Constitution, however, does not mandate that he resolve disputes either personally or through his subordinates.6 If it is the President’s choice not to review the dispute, then the agencies may act in accordance with their respective statutory authorities. Thus, it is not inconsistent with the Constitution for an executive agency to impose a penalty on another 6 The Air Force quotes testimony from former Assistant Attorney General for Land and Natural Resources F. Henry Habicht II that “Executive Branch agencies may not sue one another, nor may one agency be ordered by another to comply with an administrative order without the prior opportunity to contest the order within the Executive BranchEnvironm ental Compliance by Federal Agencies Hearings Before the Subcomm on Oversight and Investigations o f the House Comm, on Energy and Commerce, 100th Cong., 1st Sess. 210 (1987) (statement of F Henry Habicht). We believe, however, that Mr Habicht’s testimony is consistent with our view that, while the President must have the opportuni­ ty to review decisions subject to his supervisory authonty, the Constitution does not compel him to review such decisions. The Air Force cannot contend that it has had no opportunity to contest the NRC’s order within the executive branch It could have brought this dispute to the attention of the President at any time after it received notice from the NRC on June 17, 1988. Moreover, Mr. Habicht’s testimony occurred in the context of an oversight hearing relating to the Resource Conservation and Recovery Act (“RCRA”), a statute that perm its the EPA directly to impose civil penalties on other agen­ cies. 42 U.S.C. §§ 6927(c), 6928(c). The President has specified an internal dispute resolution mecha­ nism for agency disagreements with the EPA See Exec Order No. 12088, 3 C FR. 243 (1978) (authonzing the Director of the Office of Management and Budget to consider unresolved conflicts between agencies at the request of the EPA Administrator). 136 executive agency pursuant to its statutory authority so long as the President is not deprived of his opportunity to review the matter.7 A number of Executive Orders illustrate that the President does estab­ lish formal dispute resolution mechanisms for executive branch dis­ agreements when he deems them necessary. For certain executive branch disputes, for example, the President has directly asserted his authority by ordering such agencies to submit the dispute to the Attorney General.8 The President has also directed that agencies in conflict with the Equal Employment Opportunity Commission on a question of em­ ployment standards refer their dispute to the Executive Office of the President.9 Finally, in a context similar to this one, the President has issued an Executive Order requiring that certain disputes relating to pol­ lution controls enforceable by the EPA shall be resolved by the Director of OMB.10 This last order requires the Administrator of EPA to “make every effort to resolve conflicts regarding” agency violations, and pro­ vides that the Director of OMB shall adjudicate if the Administrator is unsuccessful. Exec. Order No. 12088, § 1-602, 3 C.F.R. 244 (1978). The Order is significant both in its anticipation that the EPA may enforce envi­ ronmental laws against other federal agencies and in its prescribing a method of resolving interagency disputes should they arise. The President, however, has issued no such order concerning the NRC’s issuance of civil penalties against other agencies. Nor has the 7 The Air Force also contends that the Office of Management and Budget “expressed the Administration’s view” that several proposed bills “raise[dj senous constitutional problems” because they provided “for one agency or office of the federal government to issue administrative orders and take judicial enforcement action against another." Foreman Letter at 3. We would first note that the Administration positions on which the Air Force relies were merely drafts that are necessarily summary and tentative in nature Moreover, two of the draft statements are wholly unrelated to the issue of enforcement orders by one agency against another. See draft Floor Statement on H.R. 3781 (objecting to the requirement that the Department of Energy provide certain documents to Congress prior to any clearance by the President or Secretary of Energy); draft Floor Statement on H R. 3782 (objecting to the proposed creation of a Special Environmental Counsel independent of the President and the Department of Justice). The draft Floor Statement on H R 3785 did relate to the President’s authonty to resolve dis­ putes within the executive branch, but that bill contained objectionable provisions that would have appeared to restnct the President’s authority to establish a dispute resolution mechanism between EPA and other agencies This draft floor statement may thus be understood as seeking to preserve the President’s opportunity to review Finally, the Air Force cites a letter by Assistant Attorney General John R Bolton, Office of Legislative and Intergovernmental Affairs, to Chairman John D Dingell of the House Subcommittee on Oversight and Investigations, December 20,1985 (“Bolton Letter”), for the proposition that administrative orders to other executive agencies raise senous constitutional objections. We read the Bolton letter, however, simply as a discussion of the justiciability of suits between executive agen­ cies, a subject we discuss below 8 Exec Order No 12146, § 1-402, 3 C.F.R. 409 (1979). The mandatory provision of this Executive Order, by its terms, applies only to “Executive agencies whose heads serve at the pleasure of the President.” Cf id § 1401 (stating that “each agency is encouraged” to submit a dispute to the Attorney General when there is an interagency dispute over junsdiction or a particular activity). 9See Exec Order No 12067, § 1-307 (1978) 10See Exec Order No. 12088, § 1-603, 3 C.F.R 244 (1978) (requmng the Director of OMB to “consider unresolved conflicts at the request of the Administrator”). This Order further provides that “[tjhese con­ flict resolution procedures are in addition to, not in lieu of, other procedures, including sanctions, for the enforcement of applicable pollution control standards.” Id § 1-604 137 President been deprived of an opportunity to review the dispute. The statute expressly provides that the regulated agency be given a reason­ able opportunity to respond to the Commission whenever the latter intends to impose a civil penalty. 42 U.S.C. § 2282(b). The NRC sent notice to the Air Force of its intent to impose a civil penalty on June 17, 1988. Thus, the statutory scheme provides, and the Air Force has received, sufficient opportunity to raise this dispute with the President. Moreover, before this penalty is collected from an unwilling agency, the NRC must refer the civil penalty order to the Attorney General for col­ lection.11 As we discuss below, this procedure may itself serve as a dis­ pute resolution mechanism under the control of one of the President’s subordinates. Accordingly, we conclude that because the President has neither expressed any interest in, nor been precluded from, reviewing the NRC’s orders imposing civil liability on executive branch agencies, there is no constitutional requirement that the NRC submit its decision to issue an order imposing civil fines on the Air Force to prior Presidential review.12 III. Lawsuits Between Federal Agencies The Air Force also contends that a lawsuit between the NRC and the Air Force would not be justiciable. It argues that because the lawsuit would be between two members of the executive branch, there would be no Article III “case or controversy,” and therefore the federal courts could not adjudicate the dispute. We agree that substantial constitutional diffi­ culties are raised by interagency lawsuits, but we believe that the Act per­ mits resolution of your dispute with the NRC over any civil penalty with­ out resort to such litigation. The Office of Legal Counsel has long held the view that lawsuits between two federal agencies are not generally justiciable. Proposed Tax Assessment Against the United States Postal Service, 1 Op. O.L.C. 79 (1977). In this opinion, we stated that a dispute between the Postal Service and the IRS over the service’s tax liability could not be enter­ tained in court. We relied on the principle that the federal courts may only adjudicate actual cases and controversies. Muskrat v. United States, 219 U.S. 346 (1911). A lawsuit involving the same person as plaintiff and defendant does not constitute an actual controversy. Lord v. Veazie, 49 U.S. (8 How.) 251 (1850); Cleveland v. Chamberlain, 66 U.S. (1 Black) 419 (1862). This principle applies to lawsuits between members of the exec­ utive branch. United States v. Shell Oil Co., 605 F. Supp. 1064, 1082 (D. 11See 10 C FR. § 2 205(h). 12The Air Force, of course, may urge the President to take the opportunity to review any issue relating to the proposed civil penalty. Assuming the President expressed an interest in such review, the question as to the extent of the President’s authority to review and supervise the NRC would then be raised 138 Colo. 1985); United States v. Easement and Right of Way over Certain Land in Bedford County, Tenn., 204 F. Supp. 837, 839 (E.D. Tenn. 1962); Defense Supplies Corp. v. United States Lines Co., 148 F.2d 311, 312-13 (2d. Cir.), cert, denied, 326 U.S. 746 (1945). The reasoning of our 1977 opinion applied to so-called “independent agencies.” The opinion described the Postal Service as having “a degree of independence from the executive branch” and as “removed from direct political control.” 1 Op. O.L.C. at 83. Our position is also consistent with the Supreme Court’s most recent analysis concerning officials who do not serve at the pleasure of the President. Morrison v. Olson, 487 U.S. 654 (1988), indicates that despite the removal restrictions, such agencies exercise executive power and are members of the executive branch. Id. at 690 n.28, 691 (“[T]he real question is whether the removal restrictions [including those at issue in Humphrey’s Executor v. United States, 295 U.S. 602 (1935) and Wiener v. United States, 357 U.S. 349 (1958)] are of such a nature that they impede the President’s ability to perform his con­ stitutional duty.”). We have recognized that the Supreme Court has decided several cases that appeared to be between two members of the executive branch. 1 Op. O.L.C. at 80. On further examination, however, we have concluded that such suits are only nominally between two agencies: one of the executive agencies is not the “real part[y] in interest” but simply a stand-in for pri­ vate interests. Id. at 81. The Supreme Court first made the “real party in interest” distinction in United States v. ICC , 337 U.S. 426 (1949), where the United States, in its role as a shipper, contended that charges imposed on it by railroads violated a statute. The United States unsuccessfully filed a complaint against the railroads before the Interstate Commerce Commission (“ICC”), and then brought an action in court to set aside the Commission’s order. Pursuant to statute, the United States was made a defendant in its action to set aside the ICC order. Responding to the argu­ ment that the suit was nor\justiciable because the United States was suing itself, the Court stated: There is much argument with citation of many cases to establish the long-recognized general principle that no per­ son may sue himself. Properly understood the general prin­ ciple is sound, for courts only adjudicate justiciable con­ troversies.... Thus a suit filed by John Smith against John Smith might present no case or controversy which courts could determine. But one person named John Smith might have a justiciable controversy with another John Smith. This illustrates that courts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented. 139 337 U.S. at 430. The Court then applied this standard to the dispute between the United States and the railroads: While this case is United States v. United States, et at., it involves controversies of a type which are traditionally jus­ ticiable. The basic question is whether railroads have ille­ gally exacted sums of money from the United States.... To collect the alleged illegal exactions from the railroads the United States instituted proceedings before the Interstate Commerce Commission.... This suit therefore is a step in proceedings to settle who is legally entitled to sums of money, the Government or the railroads.... Consequently, the established principle that a person cannot create a justi­ ciable controversy against himself has no application here. Id. at 430-31. Thus, the Court concluded that the lawsuit could be brought because the railroads, and not the United States, were in essence the real parties in interest as defendants. Id. at 432. We believe that this reasoning explains other cases in which the Supreme Court has appeared to decide a case between two members of the executive branch. In these cases, one of the members of the executive branch was not the real party in interest, and therefore, the suit was, for purposes of justiciability analysis, actually between a private party and a government agency. In Secretary of Agriculture v. United States, 347 U.S. 645, 647 (1954), the Court was at pains to point out that the Secretary of Agriculture was appearing in the litigation in opposition to the ICC “on behalf of the affected agricultural interests,” pursuant to specific statuto­ ry authorization. Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations Auth., 464 U.S. 89 (1983), involved a dispute between the National Treasury Employees Union and the Bureau over reimbursement of a union representative for travel expenses. In United States ex rel. Chapman v. Federal Power Comm’n, 345 U.S. 153 (1953), the dispute was actually between the Secretary of Interior and a private power company. See Ishverlal Madanlal & Co. v. SS Vishva Mangal, 358 E Supp. 386 (S.D.N.Y. 1973).13 Other cases where a private party was the real party in interest include Udall v. Federal Power Comm’n , 387 U.S. 428 (1967) (dis­ pute between nonfederal power companies and Secretary of Interior over the award of construction licenses); Federal Maritime Bd. v. Isbrandtsen, l3ln UnitedSlates v. Marine Bancorp , Inc., 418 U.S. 602 (1974) and United States v. Connecticut Nat’l 418 U.S. 656 (1974), the United States had brought civil antitrust actions under section 7 of the Clayton Act challenging the proposed merger of banks in each of the respective cases The Comptroller of the Currency intervened in both actions as a party defendant pursuant to 12 U.S.C. § 1828(c)(7)(D). See Marine, 418 U.S. at 614 The Supreme Court did not address whether the intervention of the Comptroller General denied the Court federal jurisdiction The presence of private parties as the real parties-in-interest, however, distinguishes those cases from mere interagency litigation. Bank, 140 356 U.S. 481,483 n.2 (1958) (dispute between shipper, joined by the United States, against Federal Maritime Board over shipping rates approved by the Maritime Board); Interstate Commerce Comm’n v. Jersey City, 322 U.S. 503 (1944) (dispute' between municipality and Interstate Commerce Commission, with U.S. Price Administrator intervening on behalf of municipality); Mitchell v. United States, 313 U.S. 80 (1941) (dispute between private citizen, supported by a brief from the United States, and the ICC concerning dismissal of a discrimination complaint). Finally, in United States v. Nixon, 418 U.S. 683 (1974), the Court found justiciable a lawsuit between the special prosecutor and President Nixon over the validity of a subpoena issued to acquire evidence in a pending criminal case. The Court concluded that “[i]n light of the uniqueness of the setting in which the conflict arises, the fact that both parties are offi­ cers of the executive branch cannot be viewed as a barrier to justiciabil­ ity.” Id. at 697. The Court noted that the President had been named as an unindicted coconspirator by the grand jury, id. at 687, and that the ques­ tion of the validity of a subpoena to acquire evidence from a person in a pending criminal case was “traditionally justiciable.” Id. at 697. In view of these special circumstances, we have understood the decision as based on the Court’s view that the real party in interest was President Nixon in his private capacity. Application of these principles strongly suggests that the dispute between the NRC and the Air Force is not justiciable. Both the NRC and the Air Force would be the real parties in interest in the lawsuit. The NRC seeks enforcement of its civil penalties against violators of its regula­ tions. See 10 C.F.R. § 2.205; 10 C.F.R. pt. 2, app. C. The civil penalty would be imposed directly on the Air Force, which would be required to make the payment out of its appropriated funds. No private party has a direct interest in the lawsuit. We believe, however, that this constitutional issue need not arise, because the framework of the Act clearly permits this dispute over civil penalties to be resolved within the executive branch, and without recourse to the judiciary. The Attorney General has the exclusive author­ ity to collect civil penalties for the NRC, 42 U.S.C. § 2282(c), and there­ fore may exercise his discretion to resolve the dispute without resort to litigation. Under 42 U.S.C. § 2282(a), the NRC is given the authority to impose civil penalties, and to “compromise, mitigate, or remit such penalties.” The NRC, however, cannot enforce its decision to impose civil penalties, nor is there a procedure for judicial review of the decision. Rather, if the defen­ dant disagrees with the NRC’s decision, the civil penalties may be enforced or collected only by the Attorney General. Section 2282(c) pro­ vides that “the Attorney General is authorized to institute a civil action to collect” the civil penalty, thus indicating that he is not required to do so. 42 U.S.C. § 2282(c) (emphasis added). The section also expressly provides 141 that “[t]he Attorney General shall have the exclusive power to compro­ mise, mitigate, or remit such civil penalties as are referred to him for col­ lection.” Id. (emphasis added). Thus, it is clear that the Attorney General has complete control concerning enforcement of the civil penalty. The committee report accompanying the bill that was adopted by Congress as the Atomic Energy Act Amendments confirms the breadth of the Attorney General’s discretion with respect to enforcement: The Attorney General would be authorized, but not required, to institute a civil action in a court of competent jurisdiction to collect the penalty. While the bill would con­ fer on the Commission the power of compromise, mitiga­ tion, and remission of penalties, such power would reside exclusively with the Attorney General under the bill with respect to such civil penalties as are referred by the [Commission] to him for collection. The committee also has accepted the recommendation ... that the legislation provide discretion to the Department, after the matter has been referred to it by the Commission, to determine whether a civil action should be instituted, since that Department would have basic responsibility for that action. S. Rep. No. 553, 91st Cong., 1st Sess. 11 (1969), reprinted in 1969 U.S.C.C.A.N. 1607, 1618-19. Finally, it is also evident that the Attorney General’s discretion extends to the underlying merits of the lawsuit. Because there is no judicial review of the NRC’s initial decision to order payment of civil penalties, the collection suit itself is the vehicle for judicial review. Moreover, both the legislative history of the Act14 and case law15indicate that the judicial 14In 1969 when the civil penalty provisions were enacted, the General Counsel for the Atomic Energy Commission testified before the Joint Committee on Atomic Energy that violations of the provisions were to receive de novo review. See AEC Omnibus Legislation 1969: Hearings Before the Joint Comm on Atomic Energy , 91st C ong, 1st Sess. 29-30 (1969) (statement of Joseph F Hennessey, General Counsel for AEC) That testimony provided as follows Section c. [42 U SC . 2282(c)] deals with the responsibility of the Attorney General. If after the Commission determines that a penalty should be imposed, the licensee fails to pay, the m atter is referred to the Attorney General. He will determine whether a civil action for col­ lection in Federal district court should be instituted. He is given exclusive authority to com­ promise, mitigate, or remit the civil penalty after the matter has been referred by the AEC. Under these provisions, an alleged violator is guaranteed an opportunity for a full hearing on the merits in Federal district court before any civil penalty may be collected from him. Id Mr Hennessey further noted that, “[a]s we understand it, no agency has been given this type of Continued 142 review takes the form of a trial de novo. Because the trial is not limited in scope, the Attorney General’s prosecutorial discretion should be simi­ larly plenary. It is therefore clear that the Attorney General may exercise his discre­ tion to ensure that no lawsuits are filed by the NRC against other agen­ cies of the executive branch. If the Attorney General and the President determine that no civil penalties should be collected, the Attorney General may simply refrain from bringing a lawsuit. If the Attorney General determines that certain civil penalties are appropriate, however, the Attorney General would still not bring a lawsuit because of the con­ stitutional problems noted above. Rather, procedures internal to the executive branch are adequate to resolve the dispute through the deter­ mination that the Air Force is liable.16 We thus conclude that a lawsuit between two agencies of the executive branch would involve substantial constitutional problems, but that the statutory scheme permits resolution of the interagency dispute within the executive branch. IV. Conclusion We conclude that, unless the President seeks to review the NRC’s deci­ sion, the NRC may issue an order imposing civil fines on the Air Force. We further conclude that any issue regarding the Air Force’s liability for such fines may be resolved within the executive branch and without resort to litigation. WILLIAM P. BARR Assistant Attorney GeneralOffice of Legal Counsel 14(. .continued) authonty [to collect its own fines] because this would tend to cut off a judicial trial de novo of a ‘penal­ ty’ action.” Id. at 38 16See United States Nuclear Regulator Comm’n v Radiation Technology, Inc , 519 F. Supp. 1266 (D.N.J. 1981). To determine the proper scope of judicial review, the district court examined the legisla­ tive history of NRC’s penalty provisions and analogous civil penalty provisions of other regulatory agen­ cies to conclude that Congress intended NRC’s collection actions to receive de novo review. Id at 127586. Radiation Technology is the only reported case interpreting the NRC’s civil penalty provisions. 10 The Attorney General has authonty to resolve conclusively any legal question on which he and the Air Force disagree See Exec. Order No. 12146, 3 C.F R 409 (1979) (mandating that the Attorney General resolve legal disputes between agencies whose heads serve at the pleasure of the President) Any remain­ ing disagreement between the Attorney General and the Air Force could be submitted to the President for his resolution. 143

Write a legal research memo on the following topic.

Applicability of the Davis-Bacon Act to the Veterans Administration’s Lease of Medical Facilities T he A ttorney General has authority to review legal determ inations m ade by the Secretary of L abor under the D avis-B acon Act. A lease o f a privately ow ned facility is not a “contract for construction o f a public building” w ithin the m eaning o f the D avis-B acon Act. The m ere fact that a lessor undertakes construction in o rder to fulfill its obligations is insufficient to convert a lease into such a contract. June 6,1988 M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l V e t e r a n s A d m in is t r a t io n This memorandum responds to the Veterans Administration’s December 16, 1987, request for an opinion on the applicability of the Davis-Bacon Act (“the Act”) to the lease of a privately owned facility by the Veterans Administration. I. Background The Veterans Administration (“VA”) is authorized to lease space that the Ad­ ministrator of Veterans Affairs considers necessary for use as a medical facility. 38 U.S.C. § 5003. Pursuant to that authority, the VA entered into a lease to ob­ tain space for an outpatient clinic in Crown Point, Indiana. On June 10, 1986, and again on July 25, 1986, the President of the Building and Construction Trades Department, AFL-CIO, requested a ruling from the Department of Labor’s Wage and Hour Administrator that the Davis-Bacon Act—which applies to certain “contract[s] . . . for construction . . . of public buildings”— be applied retroac­ tively to the Crown Point lease. In a decision dated August 15, 1986, the Administrator advised the VA that the Davis-Bacon Act was applicable to the Crown Point lease, because in this in­ stance the lessor had chosen to construct a new facility to lease to the VA, and 1 In soliciting offers for the lease, the VA did not specify that it was seeking either a new or a preexisting facil­ ity, and indeed the VA’s Solicitation for Offers contemplated that an offeror with a suitable existing building could be awarded the lease E g § 16 (“Preference will be given to offerors o f space in buildings on, or formally listed as eligible for inclusion in, the National Register of Historic Places and to histoncaJly significant buildings in historic districts listed in the National Register.”); § 33 (“Buildings which have incurable functional obsolescence . may be rejected by the Contracting Officer.”), § 97 (dealing with asbestos in “existing buildings” offered for lease) As stated by the Veterans Administration The V A ’s decision to lease space for the Crown Point clinic was based on an economic cost analysis performed pnor to the issuance o f the [solicitation for offers]. This analysis is used to determine the least costly method o f providing the necessary space to accommodate veterans’ medical care needs Here, leasing proved to be the least costly alternative .. When this [solicitation] is prepared, the type 89 therefore “the nature of the agreement [is] a contract for construction.” Id. at 1.1 The Administrator reaffirmed that ruling on November 13, 1986. The Depart­ ment of Labor’s Wage Appeals Board upheld the Administrator on June 26,1987, stating that even though “the principal purpose of the VA contract is to lease a facility,” “ [t]he lease aspect o f the negotiations between the VA and the devel­ oper does not in any way change the construction nature of the contract.” In re Applicability o f Davis-Bacon A ct to Lease o f Space For Outpatient Clinic, Crown Point, Indiana, WAB Case No. 86-33, at 6 ,4 (June 26, 1987). The VA thereafter expressed its disagreement with that interpretation of the Davis-Bacon Act, and announced its intention to seek the opinion of the Attor­ ney General as to the applicability of the Davis-Bacon Act to a lease by the VA, pursuant to 38 U.S.C. § 5003, o f privately owned and privately constructed fa­ cilities.2 1 ( .. . continued) o f space that will be offered, i.e , space already in existence, presently under construction, or in a fa­ cility that will be constructed, cannot be anticipated. Letter for Charles J. Cooper, Assistant A ttorney General, Office o f Legal Counsel, from Donald L lvers, General Counsel, V eterans Administration at 7 (Dec. 16,1987) (“lvers Letter”). Although the lessor o f the Crown Point fa­ cility chose to construct a new facility, the lessor was clearly not required to do so Legal and equitable title will remain in the lessor throughout the term o f th e lease, and the lessor is free to sell the building or to lease it to some­ one else at the conclusion o f the lease. Lease payments began “after the VA [took] occupancy o f the leased premises,” and will continue “ on a monthly basis in arrears ” Id at 6. The Department o f Labor suggests that there was “ a lump sum payment by the VA to the contractor of $440,128.16 for . . construction” of certain “ Schedule B” items. Letter for Charles J Cooper, Assistant Attorney G eneral, Office o f Legal Counsel, from G eorge R. Salem, Solicitor of Labor at 8 (Apr. 22, 1988) (“Salem Letter”). This assertion would appear to conflict w ith the VA’s statement that “Federal funds [were] not provided for the purposes o f construction” at Crown Point. Ivers Letter at 6. W hether any or all o f these “Schedule B” items constitute construction is a factual issue which was neither relied upon by the Department o f Labor’s W age Appeals Board in its Crown Point decision, nor directly presented to us for resolution There is nothing precluding lease payments, or portions o f lease payments, from being paid as a lump sum, rather than over time. Indeed, under the VA’s solicitation for offers, offerors were required to provide alternate proposals, calculating the “Schedule B” items both as “ lump sum payment not to be included in the rental rate,” and as a rental rate “which included th e cost o f these items.” The VA reserved to itself the right to select the “ most favorable” option. Solicitation for O ffers, § 10. Moreover, we note that even under the regulations purport­ ing to cover “ nonconstruction contracts”— and even assuming that those regulations apply to leases— there is an exception to coverage for construction work that “is incidental to the furnishing of supplies, equipment, or services” o r that is “so merged with nonconstruction work” as to be incapable o f being “segregated” as a separate contrac­ tual requirement. 48 C.F.R § 22.402(b). S e e also infra note 12. Thus, while we do not here attempt to resolve this factual issue, considerable evidence exists to support the V A ’s position that the payments contemplated for “Schedule B ” items were not for construction. In any event, it is clear that even if the Department of Labor’s factual contention regarding the nature o f the “Schedule B” items is correct, application o f Davis-Bacon requirements would be limited under the statute to the payments (or some part thereof) attributable to the “Schedule B” items. 2 Both the General Services Administration and the Department of Defense have submitted written statements supporting the V A ’s interpretation of the Davis-Bacon Act. Letter for Charles J. Cooper, Assistant Attorney Gen­ eral, Office o f Legal Counsel, from Clyde C . Pearce, Jr , General Counsel, General Services Administration (Dec 31, 1987); Letter for Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, from Kathleen A. Buck, General Counsel, Department of D efense (May 5, 1988) (“Any expansion of the Davis-Bacon Act beyond its express language should be done by C ongress, not by agency interpretation.”) 90 II. Discussion A. Jurisdiction Before turning to the substantive issues presented by the VA’s request, we ad­ dress a threshold jurisdictional matter: whether the Attorney General, and hence this Office, has authority to render an opinion on the proper interpretation of the Davis-Bacon Act at the request of the VA. The Department of Labor, by letter dated April 22, 1988, has suggested that Executive Order No. 12146, 3 C.F.R. 409 (1979), governs the issue of the Attorney General’s authority to give an opin­ ion in this matter, and that that Executive Order, by its terms, prohibits the At­ torney General from responding to the VA’s request.3 As an initial matter, the Executive Order is not the sole basis for the Attorney General’s jurisdiction over this matter. Congress has authorized the Veterans Ad­ ministration to “require the opinion of the Attorney General on any question of law arising in the administration of the Veterans Administration.” 38 U.S.C. § 2 1 1(b). The applicability vel non of the Davis-Bacon Act to leases entered into by the VA is clearly a “question of law arising in the administration of the Vet­ erans Administration”; among other things, the interpretation given to the DavisBacon Act may determine the required terms of certain contracts entered into by the Administrator.4 Accordingly, the VA has statutory authority under section 211 to request an opinion from the Attorney General, and the Attorney General has statutory authority to respond to that request.5 Moreover, contrary to the Department of Labor’s suggestion, Executive Or­ der No. 12146 also authorizes the Attorney General to issue an opinion in this matter. The Executive Order provides in part: Section 1-401. Whenever two or more Executive agencies are un­ able to resolve a legal dispute between them, including the ques­ tion of which has jurisdiction to administer a particular program or to regulate a particular activity, each agency is encouraged to submit the dispute to the Attorney General. 3 Salem Letter at 1-6. 4 See Application o f the Davis-Bacon Act to Urban Development Projects that Receive Partial Federal Fund­ ing, 11 Op. O.L.C. 92, 95 (1987) (interpretation of statute that will affect contracts entered into by department is a legal question “arising in the administration o f [the] department'’ within meaning of identical language contained in 28 U S C . §512). 5 Accord, id. at 94-95 (construing identical statutory language contained in 28 U S.C § 512 to mean that the re­ questing agency “ is entitled by law to the opinion o f the Attorney General”) The Department of Labor seeks to distinguish the Cooper Opinion, by noting that the Attorney General ex­ ercised jurisdiction therein pursuant to 28 U.S.C. § 512, whereas in the present instance 28 U S.C § 512 has no ap­ plication— implying that if 28 U.S.C § 512 did apply, the Department would not contest the jurisdtctional issue. Salem Letter at 1 n. 1. The pertinent language o f 28 U S C. § 512, however, is identical to the language o f 38 U.S.C. §211, which is applicable here. The Department o f Labor does not address 38 U.S.C. § 211 in the Salem Letter. 91 The Department of Labor interprets section 1-401 to mean that the Attorney Gen­ eral may exercise jurisdiction only when the dispute is “voluntarily submitted by the disagreeing agencies,” i.e., only when both (or all) agencies involved agree to submit the dispute to the Attorney General. Because in this case the Secretary of Labor “does not submit this matter for resolution by the Attorney General,” the Department urges that section 1-401 may not serve as a basis for the Attor­ ney General’s jurisdiction.6 We believe that the Department’s interpretation is incorrect. Section 1-401 specifically states that each agency is encouraged to submit any such dispute to the Attorney General: there is no requirement that every agency involved in a dis­ pute request an opinion from the Attorney General. Thus, section 1-401 entitles any agency, by itself, to request the Attorney General to resolve a legal dispute with another agency— as the VA has done here. The interpretation offered by the Department of Labor is contradicted by the plain language of the Order itself. Further, that interpretation would defeat the purposes of the Order by granting any agency a “veto” over the Attorney General’s section 1-401 jurisdiction, thereby insuring that some disputes could never be resolved within the terms of the Executive Order. Nothing in the Executive Order supports such an anomalous result.7 The Attorney General’s statutory authority over all litigation in which a United States agency is a party provides an additional basis for the exercise of jurisdic­ tion here.8 As we noted in a prior opinion, in response to a similar challenge to the Attorney General’s jurisdiction: [Tjhe Attorney General’s authority to give his opinion . . . is also confirmed by 28 U.S.C. 516 and 5 U.S.C. 3106. The former re­ serves generally to the Attorney General the conduct of all litiga­ tion in which the United States, an agency, or officer thereof is a party. The latter generally prohibits the head of an Executive de­ partment from employing an attorney for the conduct of litigation in which the United States, an agency, or an employee thereof is a party, requiring instead that the matter be referred to the De­ partment of Justice. Both provisions admit of exceptions only when “otherwise authorized by law.” Although Congress has es­ tablished “a solicitor for the Department of Labor,” 29 U.S.C. 555, the solicitor has no general litigating authority; his authority is narrowly drawn, see 29 U.S.C. 663 (representation of the Secre­ 6 Salem Letter at 2 7 See also 11 Op. O L.C. at 97 (reaffirming the authonty o f the head of any executive department, acting alone and without obtaining the consent of any other agency that may be a party to a dispute, to request an opinion from the Attorney General under 28 U S C § 512). Executive O rder No 12146 “expands the authority of the Attorney General to render legal opinions beyond his statutory obligation,” id , further suggesting that no “one agency veto” provision should be read into section 1-401. 8 G iven the clear jurisdictional bases fo r the Attorney G eneral’s opinion in this matter, we need not consider w hether section 1—401 o f Executive Order No. 12146 provides further authority for the Attorney General to re­ spond to the V A ’s request. See also 11 Op. O.L.C at 97-98 92 tary of Labor in occupational safety and health litigation); 29 U.S.C. 1852(b) (litigation for the protection of migrant and sea­ sonal workers); 30 U.S.C. 822 (representation of the Secretary of Labor in mine safety and health litigation), and nevertheless “sub­ ject to the direction and control of the Attorney General.” Id. The Attorney General’s authority to conduct litigation on behalf of the United States necessarily includes the exclusive and ultimate au­ thority to determine the position of the United States on the proper interpretation of statutes before the courts.9 Thus, we conclude that the Attorney General has the authority to decide the le­ gal question presented by the VA.10 B. Substantive Issues The Davis-Bacon Act, at 40 U.S.C. § 276a(a), provides in part: The advertised specifications for every contract in excess of $2000, to which the United States . . . is a party, for construction, alteration, and/or repair. . . of public buildings or public works of the United States . . . and which requires or involves the employ­ ment of mechanics and/or laborers shall contain a provision stat­ ing the minimum wages to be paid various classes of laborers and mechanics which shall be based upon the wages that will be de­ termined by the Secretary of Labor to be prevailing for the corre­ sponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the city, town, vil­ lage . . . in which the work is to be performed . . . . The language of the statute is both plain and precise. Section 276a(a) applies only to certain contracts to which the United States “is a party,” and that are “for con­ 9 Id. at 98. We note that on October 20, 1987, the AFL-CIO’s Building and Construction Trades Department filed suit to compel the VA to comply with the Department of Labor’s W age Appeals Board’s June 26, 1987 decision B uild­ ing and Construction Trades Department v. Turnage, 705 F. Supp. 5 (D.D.C. 1988). The Department o f Labor implicitly challenges the Attorney G eneral’s litigating authority as a basis for ju ­ risdiction here, by suggesting that the interpretation of the Davis-Bacon Act is not an issue in the pending litiga­ tion. Salem Letter at 6. That suggestion is incorrect* resolution o f the conflicting interpretations o f the Davis-Ba­ con Act will clearly affect the conduct o f the litigation. For example, should we conclude that the V A ’s interpretation of the Davis-Bacon Act is incorrect, that decision would be binding upon the VA and the litigation would be mooted. See, e g , Executive Order No 2877 (May 31, 1918). 10 As set out above, the Attorney General is authorized to provide opinions on “questions o f law” and to resolve “legal disputes” within the executive branch E.g , 38 U.S C § 211, Executive Order No. 12146. How far that au­ thority permits the Attorney General to resolve factual questions necessarily incident to a properly presented legal dispute need not be addressed here As we conceive the question posed by the VA, our analysis does not turn upon the particular facts surrounding the Crown Point lease; rather, our opinion is addressed to the question of DavisBacon coverage o f leases, as a matter o f statutory construction. 93 struction, alteration, and/or repair . . . of public buildings.” The question pre­ sented here is whether the lease o f a privately owned facility is a “contract. . . for construction . . . of [a] public building” within the meaning of the Act. We think the plain language of section 276a(a) demonstrates that it is not. We start with the well-established principle that “[statutory construction must begin with the language employed by Congress and the assumption that the or­ dinary meaning of that language accurately expresses the legislative purpose.” Park ‘N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194 (1985); see American Tobacco Co. v. Patterson, 456 U.S. 63,68 (1982). Although the DavisBacon Act is a remedial statute, to be construed liberally, the carefully drawn lan­ guage of section 276a(a) limits its application to “contracts] . . . for construc­ tion”; there is nothing in the language of the statute to suggest that it was meant to extend beyond construction contracts to leases, or to construction undertaken by private entities in order to enter into or fulfill a lease agreement with the gov­ ernm ent.11 That the words “contract. . . for construction” in the Act were meant to have their plain meaning was confirmed by Attorney General Cummings, who re­ viewed the legislative history o f the Davis-Bacon Act, noted that the Act was “re­ stricted by its terms to ‘construction, alteration, and/or repair’” and concluded that the Act applied to “buildings erected with funds supplied by the Congress.” 38 Op. A tt’y Gen. 229, 233 (1935) (emphasis added). Similarly, Attorney Gen­ eral Rogers noted that the House Committee on Public Works characterized the Davis-Bacon Act as “applfying] to all direct Federal construction.” 41 Op. Att’y Gen. 488,495(1960). A contract to lease a privately owned facility, however, is not a contract to erect buildings “with funds supplied by the Congress,” nor does such a lease in­ volve “direct Federal construction.” See 38 Op. Att’y Gen. at 233; 41 Op. Att’y Gen. at 495. Similarly, the fact that a private entity might undertake construction with private funds in order to offer the government a lease, or to fulfill lease oblig­ ations, does not make the United States a party to a contract for construction, nor does that fact convert a lease into a contract for “direct Federal construction.” 41 Op. A tt’y Gen. at 495. More specifically, construction undertaken by a private party, with private funds, in order to satisfy government specifications and thus to enable the private party to fulfill its obligations as a lessor to the government, or to enter into a lessor relationship with the government, is not construction pur­ suant to a “co n tract. . . for construction” to which “the United States . . . is a 11 Congress has not only crafted 40 U.S.C. § 276a(a) to exclude leases, but has also distinguished between con­ struction contracts and leases in the statute authorizing the VA to enter into leases. Thus, 38 U.S C. § 5003(a)(1) authorizes the VA to “construct or alter” any medical facility; 38 U.S.C. § 5003(a)(2) separately authorizes the VA to acquire such facilities “ by lease.” The statute was comprehensively amended in 1979 in part “[t]o help assure the tim ely completion o f leasing arrangements.” S. Rep. No. 100,96th Cong., IstSess. 58(1979),reprintedin 1979 U.S.C.C.A.N. 169.212. 94 party” as required by the language of the Act. Accordingly, such privately fi­ nanced construction is not covered by the Act.12 The Comptroller General has reached the same conclusion, holding that the Davis-Bacon Act does not apply to the construction of buildings in accordance with government specifications, for lease by the government. The Comptroller General acknowledged the “basic distinction which exists between the procure­ ment of a right to use improvements, even though constructed for that particular usage, and the actual procurement of such improvements.” In light o f that dis­ tinction, the Comptroller General held that “the mere fact that construction work is prerequisite to supplying a public need or use does not give such work a DavisBacon status.” 42 Comp. Gen. 47,49 (1962).13 The language of section 276a(a) also contrasts sharply with the language of several similar statutes under which leases are explicitly subject to the prevail­ ing wage requirements of the Davis-Bacon Act. For example, 39 U.S.C. § 410(d)(1) states explicitly that certain “lease agreement[s]” entered into by the Postal Service shall be covered by prevailing wages established under section 276a.14 Similarly, 40 U.S.C. §§ 801-851, authorizing the lease of the Union Sta­ tion Building by the Federal Government, specifically provide that alterations to the leased facility shall be subject to the prevailing wage requirements of the Davis-Bacon Act. 40 U.S.C. § 808. Additionally, 42 U.S.C. § 1437j also specif­ ically lists “contract[s] f or . . . lease” as being subject to those requirements. That Congress in these statutes felt called upon to specify that leases were to be cov­ ered by the Davis-Bacon Act indicates not only that Congress knows how to in­ sure that leases are covered by the Davis-Bacon Act in those few situations where it so chooses, but also that section 276a(a) by itself does not include leases.15 12 We note that the various regulations cited in the Salem letter are not inconsistent with this conclusion. R eg­ ulations promulgated under the Davis-Bacon Act that purport to apply the Act to “nonconstruction contracts," 48 C.F.R. § 22.402(b), do not embrace lease agreements. Similarly, 29 C.F.R. § 4.116(c)(2), promulgated under the Service Contract Act and dealing with application of the Davis-Bacon Act to contracts for services, does not apply here. 29 C F.R. § 5 2(k) is merely an interpretation o f “public building” and “public work” as those phrases appear in the Act, and makes no reference'to leases. Moreover, the regulation itself provides that those terms include only construction work “earned on directly by authonty o f or with funds o f a Federal agency.” It seems plain that even if the regulation applied to leases, the lease by the government of a privately constructed and owned facility does not constitute construction work earned on directly by authonty o f a Federal agency, or with the funds of a Fed­ eral agency. In any event, any interpretation o f these regulations as extending to leases would result in an impermissible conflict between the regulations and the plain language and intent o f the statute itself, for the reasons discussed above. See also Chevron U S A v Natural Resources Defense Council. Inc., 467 U.S. 837, 842-43 (1984) 13 The Department o f Labor states with respect to this decision that “[i]t is the position of the Department that the Comptroller General lacks the authority to issue opinions regarding the proper application o f the Davis-Bacon Act.” Salem Letter at 9 n.7. The Comptroller General’s decision, however, was issued in response to a request from the Department o f Labor. Moreover, whatever the merits o f the Department’s challenge to the Comptroller G en­ eral’s authority, we refer to the Comptroller General’s opinion not as binding precedent but rather as additional confirmation for our own conclusions. 14 When Congress amended 39 U.S.C. § 410(d) to make the Davis-Bacon Act applicable to certain Postal Ser­ vice leases. Congress acknowledged that that application was an extension of Davis-Bacon coverage. H.R. Rep. No. 1104, 91st Cong., 2d Sess. 27 (1970), reprinted in 1970 U.S.C.C.A.N. 3649, 3675 95 Conclusion In light of the language and legislative history of the Davis-Bacon Act, the dis­ tinction that Congress has drawn between leases and contracts for construction in numerous statutes, including the statute governing the VA’s leasing authority, and several opinions o f the Attorney General and Comptroller General, we con­ clude that the coverage of the Davis-Bacon Act does not extend to leases. The mere fact that a lessor undertakes construction in order to fulfill its lease obliga­ tions is insufficient to convert a lease into a “contract. . . for construction” within the meaning of the Act. C h a r l e s J. C o o p e r Assistant Attorney General Office of Legal Counsel 15 Pending legislation in Congress also provides some minor support to the conclusion that the Davis-Bacon Act does not apply to leases. The “ Davis-Bacon Amendments o f 1987” would amend current 40 U.S.C § 276a to provide that “a contract for construction . . . includes a contract for the lease o f a facility which is to be constructed. . . if con­ struction . .. is required for fulfillment of the contract.” Although it is quite true that “[t]he views of members of a later C ongress . .are entitled to little if any weight” in interpreting a statute, Teamsters v United States, 431 U.S. 324,354 n.39 (1977), it is nonetheless the case that in enacting a statute. Congress is presumed to intend to change existing law, rather than to com m it a m eaningless act. The Department o f Labor suggests that “there is no indication that Congress has ever dealt with this issue [of coverage o f leases by the Davis-Bacon A ct],” because Congress has not, for example, “pass[ed] an amendment providing that leases are not subject to the A ct.” Salem Letter at 10. Congress, however, need not pass such nega­ tive am endm ents to make its intent clear: the very words o f the statute that Congress did choose to pass are suffi­ cient to make it clear that the Act does not co v er leases 96

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April 11, 1977 77-20 MEMORANDUM OPINION FOR THE COMMISSIONER OF IMMIGRATION AND NATURALIZATION Section 212(a)(27) of the Immigration and Nationality Act—Exclusion of Certain Aliens— Rhodesia This is in response to your request for our opinion concerning the scope of Section 212(a)(27) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(27). That provision makes ineligible for visas and ex­ cludes from admission into the United States: Aliens who the consular officer or the Attorney General knows or has reason to believe seek to enter the United States solely, princi­ pally, or incidentally to engage in activities which would be preju­ dicial to the public interest, or endanger the welfare, safety, or security of the United States. In the fall of 1975, six Southern Rhodesian aliens sought to enter the United States to attend a conference o f the International Federation of Agricultural Producers in Washington, D.C. The six apparently would have been traveling on British passports. The Department of State identified the six aliens as officials of the National Farmers’ Union of Southern Rhodesia, an organization o f private farmers that seeks to promote export sales of agricultural commodities grown in Southern Rhodesia and cooperates closely with the existing government of that country. The Department o f State determined that, in attending the meeting of the International Federation of Agricultural Producers, the aliens would have sought to promote the foreign sale of agricultural commodities grown in Southern Rhodesia. We understand that the six Rhodesian aliens were excluded from the United States under Section 212(a)(27) on the basis of the State Departm ent’s determination. The legal validity of the exclusion was subsequently questioned by a Member o f Congress, who took the position that Section 212(a)(27) applies only to subversives. Because of renewed interest in the scope of Section 212(a)(27) and the continuing existence of United Nations sanc64 tions against Southern Rhodesia, we believe it is useful to convey our opinion on the subject at this time and to do so with some reference to the Rhodesian situation. It is our opinion that potentially serious adverse foreign policy conse­ quences may properly be taken into account in determining whether an alien is ineligible for a visa and hence inadmissible into the United States. We therefore agree that given the findings of the Department of State, the aliens who sought to attend the conference in 1975 were inadmissible under Section 212(a)(27). We also are of the opinion that otherwise innocuous activities in the United States may give rise to inadmissibility under that provision in certain circumstances. I As we understand the policies and practices of the National Farmers’ Union, the entry of officials of that organization into the United States to attend the conference and their activities at the conference would have violated sections 3(b) and 5(b) of the United Nations Security Council Resolution 253 of May 29, 1968. Section 3(b) thereof provides that Member States “shall prevent . . . [a]ny activities by their nation­ als or in their territories which would promote or are calculated to promote the export of any commodities or products from Southern Rhodesia . . . .” Section 5(b) directs Member States to “ [t]ake all possible measures to prevent the entry into their territories of persons whom they have reason to believe to be ordinarily resident in Southern Rhodesia and whom they have reason to believe to have furthered or encouraged, or to be likely to further or encourage, the unlawful actions of the illegal regime in Southern Rhodesia . . . . ” 1 Congress has authorized the President to issue orders, rules, and regulations to provide for the domestic enforcement of United Nations sanctions, and has established criminal penalties for persons subject to the jurisdiction of the United States who violate such orders, rules, and regulations. See 22 U.S.C. § 287c. Section 1(b) of Executive Order No. 11419, 3 C FR 737 (1966-1970 Compilation), which was issued to imple­ ment Security Council Resolution 253, prohibits any person subject to the jurisdiction of the United States from engaging in activities that would promote the export of any commodities or products originating in Southern Rhodesia. Thus, the representatives of the National Farm ­ ers’ Union would have committed a criminal offense if, as the D epart­ 1 Section 5(a) o f Resolution 253 directs all M em ber States to prevent the entry into their territories, save on exceptional hum anitarian grounds, o f any person traveling on a Southern R hodesian passport. Section 5(a) is not im plicated in the present situation because the R hodesian nationals w ere traveling on British passports. W e have been inform ed that it has been the policy o f the D epartm ent o f State from the beginning that the regim e does not constitute “com petent a u thority" for the issuance o f passports w ithin the m eaning o f § 101(a)(30) o f the Im m igration and N ationality Act, and that travel docum ents issued by the regime therefore do not m eet the requirem ents for en try contained in § 101(a)(26). A s a result, there is no need to rely on § 212(a)(27) in excluding aliens traveling on Rhodesian passports. 65 ment of State predicted, they had sought to promote the export of Rhodesian agricultural products while they were attending the confer­ ence. It would seem that activities that are prohibited by a Security Council Resolution, an Executive order issued to conform this Nation’s foreign policy to that Resolution, and a criminal statute designed to enforce such Executive orders, must surely be regarded as “activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security o f the United States” within the meaning of Section 212(a)(27). But we do not believe that the Resolution, the Executive order, and the attendant criminal sanctions are essential to our conclusion that the Rhodesian nationals were properly excluded under Section 212(a)(27). Executive O rder No. 11419 does not speak directly to the require­ ment in Security Council Resolution 253 that Member States prevent the entry of Rhodesian residents who there is reason to believe have furthered or encouraged o r would be likely to further or encourage “ the unlawful actions” of the present regime in Southern Rhodesia. This omission from the Executive order was deliberate. The Depart­ m ent of State and this Department took the position that no additional authorization was needed in order to implement this aspect of the Security Council Resolution because the Rhodesian aliens in question w ould be excluded from entry under the Immigration and Nationality Act. A memorandum prepared by this Office in 1968 and forwarded to the W hite House with the proposed order stated: Certain other requirements of the Security Council Resolution have been omitted from the proposed order on the basis that they can be put into effect on the part of the United States by the responsible agencies under existing authority. Thus, the require­ ments to exclude from M ember States persons traveling on Rhode­ sian passports[2] and to “take all possible measures” to exclude certain persons ordinarily residing in Southern Rhodesia are to be implemented by the Departm ents of State and Justice in accord­ ance with the Immigration and Nationality Act. T he letter of transmittal from the Justice Department’s Office of Legal Counsel to the President w as to the same effect.3 Therefore, this D e­ partment, the Department o f State, and the President fully expected that the Immigration and Nationality A ct would, of its own force, prevent the entry of Rhodesian aliens who might engage in activities in this country that would further and encourage the unlawful actions of the regime in Southern Rhodesia and thereby adversely affect the 3 See footnote 1. 3 T h e function o f reviewing E xecutive orders as to form and legality has been delegat­ ed by the A tto rn ey G eneral to the O ffice o f L egal Counsel. 28 C F R § 0.25(b). 66 Nation’s foreign relations.4 Section 212(a)(27) was not specifically men­ tioned in the various letters and memorandums written in 1968, but its grounds for exclusion are the only ones contained in Section 212(a)(27) that could have been thought to be applicable to the Rhodesian situa­ tion. The conclusion reached by the Administration in 1968 finds support in the text of Section 212(a)(27), its legislative history, and administra­ tive interpretation. Its language is clearly not limited in its application to aliens posing a threat to internal security, as has been suggested. Activities by aliens that could have potentially serious adverse effects on the Nation’s foreign policy can quite reasonably be characterized either as “prejudicial to the public interest” or likely to “endanger the . . . security of the United States” within the meaning of the provision.5 It is true that the elements of legislative history relating directly to the passage of the Immigration and Nationality Act in 1952 can be read as limiting application of Section 212(a)(27) to internal security cases. For example, the House and Senate reports describe the provision in identical language, indicating that it and subparagraphs (28) and (29) merely “incorporate the provisions of Section 1 of the Act o f October 16, 1918, as amended by Section 22 of the Subversive Activities Con­ trol Act of 1950, 64 Stat. 987, relating to the exclusion of subversives.” S. Rep. No. 1137, 82d Cong., 2d Sess. 10 (1952); H. Rep. No. 1365, 82d Cong., 2d Sess. 49 (1952). However, because the language o f Section 212(a)(27) was taken almost verbatim' from §22 of the Subversive Activities Control Act of 1950, 64 Stat. 987, 1006,6 it is necessary to consult as well the legislative history of that earlier Act, which clearly sustains the current position of the Service and the State Department. While Congress’ immediate focus in creating additional categories of excludable aliens in 1950 was also directed to persons who could be characterized as “subversives,” see, e.g„ S. Rep. No. 2230, 81st Cong., 4 It w ould seem from the account in the text that in 1968 the A dm inistration was also o f the view that § 212(a)(27) w ould operate to bar the admission o f aliens w h o had in the past furthered o r encouraged the actions o f the illegal regim e in Southern Rhodesia, regardless o f the nature o f the specific activities in w hich they proposed to engage w hile in the country. W e believe that there is considerable support for this view, see Part II, infra, but there w as no need to rely upon it in excluding the aliens in view o f the specific activities in w hich they intended to engage after entering the country. 5 T he term “national security” is often used to include considerations of b oth national defense and foreign policy. See, e.g., E xecutive O rder N o. 11652, § 1, 3 C F R §§678, 679 (1971-1975 Com pilation). T he phrase “security of the United States” may be construed in a similar fashion. • T he only difference betw een the tw o provisions is that the relevant portion o f § 22 o f the 1950 A ct did not contain the reference in Section 212(a)(27) to the “security” o f the United States. 67 2d Sess. 16-28 (1950),7 §22 o f the Subversive Activities Control Act of 1950 as passed swept much m ore broadly. Congress’ choice of language is instructive, particularly its use of the phrase “prejudicial to the public interest.” That phrase had a well-settled administrative interpretation in 1950. Under the Act of May 22, 1918, 40 Stat. 559, as amended by the A ct of June 21, 1941, 55 Stat. 252, the President was authorized to impose additional restrictions on the entry of persons into the United States during times of war or national emergency. In Proclamation 2523, 3 C FR 270 (1938-1943 Compilation), issued November 14, 1941, the President found such additional restrictions to be necessary and declared that an alien would not be permitted to enter if his entry would be “prejudicial to the interests o f the United States,” as provided in regulations to be promulgated by the Secretary of State in consulta­ tion with the Attorney General. Under the regulations that were pro­ mulgated, no entry permit could be issued to any alien “if the permitissuing authority [had] reason to believe that the entry of the alien would be prejudicial to the interests of the United States.” 8 CFR § 175.52(a) (1949 ed.) See, generally, K nauff v. Shaughnessy, 338 U.S. 537, 540-41 (1950); Shaughnessy v. Mezei, 345 U.S. 206, 210-11, and n. 7 (1953). The 1949 Aliens and Nationality regulations then listed 11 categories of inadmissible aliens, one of which categories is highly relevant here: § 175.53 Classes of aliens whose entry is deemed to be prejudicial to the public interest. The entry of an alien w ho is within one of the following categories shall be deemed to be prejudicial to the inter­ ests of the United States . . . 0 $ $ * $ $ $ (b) Any alien who is a member of, affiliated with, or may be active in the United States in connection with or on behalf of, a political organization associated with or carrying out policies of any foreign government opposed to the measures adopted by the Government of the United States in the public interest, or in the interest of national defense, or in the interest of the common defense of the countries of the Western Hemisphere, or in the prosecution o f the war. The proclamation and regulations were still in effect in 1950. K nauff v. Shaughnessy, supra, 338 U.S. at 546. Thus, when the predecessor to Section 212(a)(27) was adopted, aliens who were expected to be active in the United States on behalf of organizations that supported countries having foreign policy conflicts with the United States, were included among those who were inadmissible on the ground that their entry 7 T h at rep o rt recom m ended passage of S. 1832, w hich was lim ited in purpose to am ending the A c t o f O ctober 16, 1918, to provide, inter alia, for the exclusion o f those connected w ith Com m unist organizations. T he substance o f S. 1832 was added by the Senate to th e House-passed version o f the Subversive A ctivities C ontrol A c t of 1950, and the H ouse later agreed to the addition. See H. R ep. No. 3112, 81st Cong., 2d Sess., at 54 (1950). 68 would be “prejudicial to the public interest” or “prejudicial to the interests of the United States.” The prohibition in Section 212(a)(27) against the entry of aliens who there is reason to believe would engage in activities that would be “prejudicial to the public interest” appears to be a direct descendant of the Presidential proclamation and regulations. “The chief difference . . . is that the operation of this new legislation is not limited to time of war or national emergency. Its inhibitions must be enforced at all times as part of our permanent legislative pattern.” C. Gordon, “The Immi­ gration Process and National Security,” 24 Temp. L.Q. 302, 306 (1951). The Senate Report that first proposed what later became § 22 of the Subversive Activities Control Act of 1950 (the predecessor of Section 212(a)(27)), discussed Proclamation 2523 and 8 C FR § 175.53 as part of the body of immigration law on which Congress was building. S. Rep. No. 2230, 81st Cong., 2d Sess. 22 (1950). The report did not expressly refer to subsection (b), quoted above, or any other subsection of 8 C FR 175.53. But neither did it express disapproval of the broad sweep of immigration law then in effect, of which the regulations were a part, or indicate an intention to narrow them. The tenor of the legislative history is precisely to the contrary.8 Against this background, it is entirely reasonable to infer that, in enacting Section 212(a)(27), Congress contemplated that foreign policy considerations could play a role in determining whether an alien’s activities in the United States would be “prejudicial to the public interest.” 8 * F o r exam ple, tw o Senate reports recom m ending the am endm ent finally enacted in § 22 o f the Subversive A ctivities C ontrol A ct o f 1950 described the provision as follows: Section 1(1) of the A ct o f O ctober 16, 1918, as am ended by the bill, is an adm ixture o f existing law and the new provisions o f the bill. U nder existing law, am ong the excludable aliens are certain aliens w ho seek to enter the United States w hose e n try w ould be prejudicial to the public interest o r w ould endanger the safety o f the U nited States. T h e com m ittee has broadened this class of excludable aliens to include those aliens w ho seek to enter the United States to engage in activities w hich w ould endanger the welfare o f the Unites States. S. Rep. No. 2230, 81st Cong., 2d Sess. 5 (1950); S. Rep. No. 2369, 81st Cong., 2d Sess. 10 (1950). Then-existing statutory law only prohibited the entry o f aliens w ho there w as reason to believe w ould engage in activities that w ould endanger the safety of the U nited States. See S. Rep. No. 2230, supra, at 28. T he reference in the Senate report to the prohibition “[ujnder existing law ” against entries that w ould be “prejudicial to the public interest” must therefore have been to Proclam ation 2523 and 8 C F R § 175.53. T he passages from the Senate reports express a purpose to retain and codify the substance o f these nonstatutory restrictions. • T h e Im m igration and N aturalization Service analysis o f §212(a)(27), w hen the Im m i­ gration and N ationality A ct o f 1952 w as still in its draft stage, inform ed the C ongress that provisions sim ilar to § 2 1 2(a)(27) already appeared in the A ct of May 22, 1918 as am ended, and Proclam ation 2523. U.S. Im m igration and N aturalization Service, R eport on S. 716, A Bill to Revise the L aw s Relating to Im m igration, N aturalization and N ationality, at p. 212-24. T h e Service did not mention the regulations in its analysis, but the reference to the proclam ation supports the conclusion that §212(a)(27) m ay be interpreted in light o f the grounds for exclusion specified in the regulations im plem enting the proclam ation. 69 The administrative interpretation by the Departments of State and Justice has been consistent with this reading of the legislative history. We are informed that over a number o f years, the Department of State has applied Section 212(a)(27) in two different types of cases: Cases involving a security threat in the narrow sense, such as the entry of saboteurs or persons involved in intelligence missions against the United States, and cases involving potentially far-reaching adverse effects on United States foreign policy. Exclusion of the Rhodesian aliens was therefore in keeping with the latter aspect of the State Department’s previous application of the section. The interpretation by the Board of Immigration Appeals is not to the contrary. For example, in M atter o f M -, 5 I&N Dec. 248, 252 (1953), the Board stated: The Senate and House Committees which recommended the pas­ sage of the bill . . . considered the section as one relating to subversives (p. 10, S. Rept. No. 1137, 82d Cong., 2d Sess.; p. 49, H. Rep. No. 1365, 82d Cong., 2d Sess.). However it is clear that the language o f the section is broad enough to include others than subver­ sives. [Emphasis added.] See also, M atter o f McDonald and Brewster, Int. Dec. #2353 (March 13, 1975), at pp. 3-4. No doubt it was with such an interpretation of Section 212(a)(27) in mind that the Departments of State and Justice concluded in 1968 that Rhodesian aliens who would be likely to further or encourage the unlawful regime in Southern Rhodesia, could be excluded under the Immigration and Nationality Act without additional authorization in Executive O rder No. 11419. It is our opinion that the language of Section 212(a)(27), its legislative history, and administrative interpretation all support your conclusion that the six aliens who sought to attend an agricultural conference in the United States were inadmissible under that section. II A question has arisen in the course of our review of Section 212(a)(27) as to whether that provision would operate to exclude an alien whose mere entry into or presence in the United States would be “prejudicial to the public interest” or “endanger the . . . security of the United States,” perhaps for foreign policy reasons. As mentioned in footnote 4, the Administration in 1968 apparently assumed that to be the case in choosing to rely on Section 212(a)(27) to prevent the entry of Rhodesian aliens who had in the past furthered or encouraged the unlawful actions of the illegal regime in Southern Rhodesia. See Secu­ rity Council Resolution 253, § 5(b). The exclusion of such aliens pre­ sumably was intended to be predicated not on the nature of any specific activities in which they would engage while here, but on the serious adverse foreign policy consequences of allowing them to be present in violation of Security Council Resolution 253. We believe that the 70 conclusion reached in 1968 was based on a reasonable administrative interpretation of Section 212(a)(27). It is true that Section 212(a)(27) does not expressly provide that an alien whose entry would be prejudicial to the public interest or endan­ ger national security is inadmissible; it speaks instead of the nature of the activities in which the alien seeks to engage after entering the United States. Nevertheless, we believe that the circumstances sur­ rounding the alien’s entry are in some cases quite relevant to the assessment of the foreign relations impact of the alien’s subsequent activities in this country. Whether or not an alien is inadmissible under Section 212(a)(27) depends on all the facts and circumstances, including foreign policy factors over which the individual alien may have no control. Thus, activities that might be wholly innocuous if engaged in by one alien, might fairly be regarded as “prejudicial to the public interest” if en­ gaged in by another, even if the individual alien did not have a specific intent to cause any harm or disturbance while in the United States. Section 5(b) of Security Council Resolution 253, to which this coun­ try is committed, imposes a duty on Member States to prohibit the entry for any purpose of all Rhodesian aliens who have furthered or encouraged the unlawful actions of the Rhodesian regime. As a result, all of the activities of such persons in the United States, however harmless they would be if engaged in by other aliens, might have serious foreign policy consequences simply because the Rhodesians would have entered the country in violation of the resolution.10 As a practical matter, then, Rhodesian aliens covered by the Security Coun­ cil Resolution are inadmissible because their entry or presence in the United States would be prejudicial to the public interest or endanger national security, even though the language of the statute speaks in terms of activities of aliens in the United States.11 The legislative history supports this interpretation of the statute. For example, the Presidential proclamation and regulations on which Sec­ tion 212(a)(27) was based were written in terms of an alien whose entry would be prejudicial to the United States or to the public interest, see. Proclamation 2523, supra; 8 CFR § 175.52(a) and 175.53 (1949), supra, as did the two Senate Reports that first proposed the provision in 1950. 10 A lternatively, Rhodesian aliens required to be excluded under the Security Council Resolution could be considered to be inadmissible under §212(a)(27) on the ground that their presence in the U nited States w ould be an “activity” that w ould be prejudicial to the public interest or endanger the national security. " A n argum ent against the interpretation w e have advanced in the text has been suggested, based on the hypothetical example o f a m ilitary dictator, a presum ed persona non grata in this country, w ho m ight wish to enter the United States to visit his dying m other o r to receive m edical attention. W e agree that § 212(a)(27) w ould ordinarily not prevent such an entry. But w e reach that conclusion on the ground that such otherw ise harmless activities in this country w ould not usually cause a foreign policy em barrassm ent o f sufficient m agnitude to be regarded as prejudicial to the public interest simply because a m ilitary dictator w as involved, not because § 212(a)(27) is w holly inapplicable in such a setting 71 See footnote 8. In fact, 8 C F R § 175.53(b), quoted earlier, provided that an entry would be regarded as prejudicial to the public interest if the alien “is a member of, affiliated with, or may be active in the United States in connection with or on behalf of, a political organization associated with or carrying out policies of any foreign government opposed to the measures adopted by the Government of the United States in the public interest . . [Emphasis added.] This phrase would have barred the members o f the National Farmers’ Union of Southern Rhodesia, as the Department of State has described that organization, regardless of the nature of their intended activities in the United States. The Departm ent of State has suggested that some memorandums and correspondence from 1959 to 1962 relating to the efforts of a certain alien to enter the United States may demonstrate an administrative interpretation that an alien could not be excluded solely on the ground that the circumstances surrounding his or her entry render all subse­ quent activities “prejudicial to the public interest” or a danger to the security of the United States. We do not believe that memorandums and correspondence in question furnish a sound basis for rejecting our interpretation of the statute. Some of the materials do indicate that an alien may not be excluded under Section 212(a)(27) solely on the ground that his native country has stated that it would regard his admission as an unfriendly act. Several letters also state that the foreign reaction to an alien’s entry is not “directly pertinent” to his eligibility for a visa. But despite these statements, both factors appear to have played a decisive role in the State D epartm ent’s handling of cases over the years. Moreover, while the emphasis was on the particular alien’s intended activities in the United States, a number of the memorandums and letters state that it was the State Department’s view that the individual’s “entry,” “admis­ sion,” or “coming” to the United States would be prejudicial to the public interest, thereby suggesting that it is permissible to consider the ramifications of the entry itself. Because of these inconsistencies, we decline to rely on the materials made available to us by the Department of State as establishing an administrative interpretation that an alien cannot be excluded on the ground that his entry or mere presence would be prejudicial to the public interest or endanger the security of the United States. The Service has informed us that it has nothing in its files, other than published opinions of the Board of Immigration Appeals, that might shed light on whether an alien may be excluded under Section 212(a)(27) on the ground that his entry or presence in the United States would be prejudicial to the public interest. We have reviewed the published opinions that discuss Section 212(a)(27), including those al­ ready cited, but we do not find them to be expecially illuminating on the precise question presented here. All involved charges that the alien would engage in specific activities after entering the United States that 72 would be prejudicial to the public interest; there was thus no need to discuss the foreign policy consequences of the alien’s mere entry or presence.12 We agree with what we understand to be the position of the Depart­ ment of State that under our analysis, only circumstances of an unusual nature could permit a determination that the entry of an alien into the United States would have such serious adverse foreign policy conse­ quences that his mere presence and otherwise innocuous activities in this country would be prejudicial to the public interest or endanger national security.13 But in our view, the entry of Rhodesian aliens who have furthered or encouraged the “unlawful activities” of the Rhode­ sian government presents such a case. It is our opinion now, as it was in 1968, that Section 212(a)(27) bars their entry. We also agree with your conclusion that whether an alien is barred by Section 212(a)(27) should be determined on a case-by-case basis. When a Southern Rhodesian alien is involved, it will be necessary to examine the nature of his intended activities in the United States—as in the case of the six members of the National Farmers’ Union who were expected to promote export sales of agricultural commodities grown in 12 F or exam ple, in Matter o f M-, 8 I&N D ec 24 (1958), the B oard held th at a 73-yearold form er Rum anian industrialist, w ho had previously lived in the United States for 11 years w ithout incident but w ho was alleged to have been a Nazi sym pathizer and Com munist sym pathizer in Rum ania before com ing to the United States, was not inadm is­ sible under § 212(a)(27). T here was no suggestion, as th ere has been here, th at the alien's m ere entry o r presence in the United States m ight have had serious adverse foreign policy consequences. T he Board did appear to be o f the view that his expected activities after reentering the U nited States w ould be determ inative, id. at 29-30, but it nevertheless undertook an exhaustive review o f the alien’s past affiliations and activities before c o n ­ cluding that he was admissible. A nd the Board was especially influenced by a determ ina­ tion in a prior proceeding in 1951 that the alien “w as not w ithin the classes o f aliens specified in form er 8 C F R § 175 53, that is, aliens w hose entry w ould be deem ed to be prejudicial to the interests o f the United States." Id. at 30. [Em phasis added.] 13 See the follow ing portion o f a letter dated January 14, 1977, from the A dm inistrator o f the Bureau o f Security and C onsular Affairs, to this Office: W hen an alien’s activities are in and o f them selves entirely innocuous— for example, spending a few days or w eeks o f private relaxation at a resort area—it w ould then be necessary to dem onstrate that the alien’s background, notoriety, our g overnm ent’s policies, attitudes and comm itm ents, and other factors w ere such that the spectacle o f the alien’s being given permission by the United States G overnm ent to engage in such otherw ise innocuous activities w ould or reasonably could be considered to be prejudicial to the public interest or to endanger the safety o r security o f the United States. It w ould be the D epartm ent’s view that such a situation w ould necessarily involve circum stances o f an unusual nature. 73 Southern Rhodesia when they attended a conference in the United States—or to determine w hether the particular individual had in the past furthered and encouraged the “ unlawful actions” of the regime to some significant degree.14 John M. H armon Acting Assistant Attorney General Office o f Legal Counsel “ N o t all Southern Rhodesians co v ered by Security C ouncil R esolution 253 are inad­ missible un d er § 212(a)(27) on the g ro u n d that their mere presence in the United States is an activ ity prejudicial to the public interest. A liens traveling on R hodesian passports, see R esolution § 5(a), are inadmissible under §212(a)(27) o f the A ct. See note 1, supra.

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Disclosure of Grand Jury Matters to the President and Other Officials T h e A tto rn e y G en eral m ay d isclo se g ra n d ju ry m aterial c o v e re d b y R ule 6 (e ) o f the F e d e ra l R u le s o f C rim in a l P ro ce d u re to th e P resid e n t an d m e m b e rs o f th e N a tio n a l S e c u rity C o u n cil w h e re su ch d is ­ clo su re is fo r the p u rp o se o f a ssistin g the A tto rn e y G e n e ra l in h e r e n fo rc e m e n t o f fe d e ra l c rim in a l law . A lth o u g h u n d e r th o se c irc u m sta n c e s su ch d is c lo su re m ay be m a d e w ith o u t p rio r ju d ic ia l a p ­ p ro v a l, th e n am es o f th o se re c eiv in g the g ra n d ju ry m a te ria l m u st b e s u b m itte d to the c o u rt th a t im ­ p a n e le d th e gran d j u ry in q u e stio n T h e re a re a ls o c irc u m sta n c e s w h ere th e P re s id e n t’s c o n stitu tio n a l re sp o n sib ilitie s m ay p ro v id e ju s tif i­ c atio n fo r th e A tto rn e y G e n eral to d isc lo se g ra n d ju ry m a tte rs to the P resid e n t in d e p e n d e n t o f the p ro v is io n s o f R ule 6 (e). S u ch c irc u m sta n c e s m ig h t arise, fo r e x a m p le , w h e re the A tto rn e y G e n eral le a rn s th ro u g h gran d ju ry p ro c e ed in g s o f a g ra v e th reat o f te rro rism , im p lic a tin g the P re s id e n t’s re ­ s p o n sib ilitie s un d er A rtic le II o f th e C o n stitu tio n . Septem ber 21, 1993 M e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l This memorandum responds to your request for our legal opinion on the ques­ tion of whether, and under what circumstances or conditions, the Attorney General may disclose grand jury material covered by Rule 6(e) of the Federal Rules of Criminal Procedure in briefings presented to the President and other members of the National Security Council (“NSC”). We conclude that the Attorney General may disclose Rule 6(e) m aterials to the President or to other NSC members where such disclosure is for the purpose of assisting the Attorney General in her enforcement of federal criminal law. Disclo­ sures satisfying this “criminal law enforcement purpose” standard may be made without prior court approval or a showing o f particularized need, but the names of those who received the information must be supplied to the district court that em­ paneled the grand jury. Fed. R. Crim. P. 6(e)(3)(A), (B). Subject to obtaining prior court approval based on a showing of particularized need, the Attorney G en­ eral may also make such disclosures “[for] uses related fairly directly to some identifiable litigation, pending or anticipated.” United States v. Baggot, 463 U.S. 476, 480 (1983); see also Fed. R. Crim. P. 6(e)(3)(C)(i). These court-approveddisclosures may be made for the purpose of gaining assistance in civil as well as criminal litigation. We do not believe that any of the 6(e) exceptions would apply to disclosures made to the President or NSC officials for general policymaking purposes, as opposed to obtaining the assistance o f those officials for law enforce­ ment purposes. 59 Opinions o f th e O ffice o f Legal C ounsel W e also believe, however, that the President’s ultimate responsibility to super­ vise the executive branch, and in particular his duty to “take Care that the Laws be faithfully executed,” U.S. Const, art. II, § 3, may sometimes provide a constitu­ tional justification for the Attorney General to disclose grand jury matters to the President independent o f the Rule 6(e) exceptions. Disclosures of this nature would be supported by basic separation of powers principles where, for instance, the President has a special need for such information in order to exercise necessary supervision over the Attorney G eneral’s law enforcement functions in matters of unusual national significance. Inasmuch as the courts have not directly addressed the extent o f the President’s Article II power in this particular context, any disclo­ sures o f grand jury material made on the basis of that power alone should be un­ dertaken with caution. Judicial sanction for such disclosures might be obtained by invoking the court’s inherent supervisory authority to approve disclosures o f grand jury m aterials not otherw ise covered by one of the Rule 6(e) exceptions in appro­ priate circum stances. I. Disclosures under Rule 6(e) Rule 6(e)(2) of the Federal Rules of Criminal Procedure establishes a “General Rule of Secrecy” providing that certain persons, including attorneys for the Gov­ ernm ent1, “shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules.” See United States v. John Doe, Inc. I, 481 U.S. 102, 107 (1987). Under this rule, no attorney for the Department of Justice may disclose “matters occurring before the grand ju ry ” to any other person, unless one o f the rule’s enum erated exceptions applies. The specified exceptions are set forth under subparagraph (3) of Rule 6(e) and may be summarized as follows: (1) D isclosure to an attorney for the government for use in the performance of that attorney’s duties. (Exception (A)(i)); (2) D isclosure to such government personnel as are deemed necessary to assist an attorney for the government in the performance of his duty to enforce federal criminal law. (Exception (A)(ii)); (3) D isclosure directed by a court preliminary to or in connection with a judicial proceeding. (Exception (C)(i)); , (4) D isclosure at the request o f a defendant and approved by a court “upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand ju ry .” (Exception (C)(ii)); (5) D isclosures made by an attorney for the government to another federal grand jury. (Exception (C)(iii)); and (6) D isclosures to state or local law enforcem ent officials permitted by the court at the request o f any attorney for the governm ent for purposes of aiding prosecu­ 1 For p u rp o ses o f R ule 6 (e), the Attorney G eneral is an “attorney for the governm ent ” Fed R C n m P. 54(c); see U n ite d S ta te s v B a tes, 627 F.2d 3 4 9 , 351 (D C . C ir. 1980). 60 D isclosure o f G rand Jury M ullers to the P resident and O ther O fficials tion of violations of state or local law that may be brought forth before the grand jury. (Exception (C)(iv)). A. Subsection (A): Self-executing Exceptions Rule 6(e)(3)(A) sets forth the exceptions to nondisclosure of grand jury matters which may be exercised without prior judicial approval or a showing of particular­ ized need. It provides as follows: (A) Disclosure otherwise prohibited by this rule of matters oc­ curring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to — (i) an attorney for the government for use in the performance of such attorney’s duty; and (ii) such government personnel (including personnel of a state or subdivision o f a state) as are deemed necessary by an attorney for the government to assist an attorney fo r the government in the p er­ formance o f such attorney’s duty to enforce federal criminal law. Id. (emphasis added). The (A)(i) exception clearly would not apply to disclosures to the President or members of the NSC.2 However, the (A)(n) “government personnel” exception could apply to such disclosures in circumstances where they are made for the pur­ pose of obtaining the assistance of the President or NSC members in enforcing federal criminal law. Although the (A)(ii) exception was primarily designed to allow disclosures to lesser-ranking officials or agents assisting a prosecutor in a particular case, there is no persuasive reason why the Attorney General cannot make such disclosures to the President or to other senior Administration officials (who do constitute “government personnel”) for purposes o f obtaining their assistance in carrying out federal criminal law enforcement responsibilities. One plausible example o f such a situation might be the grand jury investigating the terrorist attack on the W orld Trade Center. In such a case, it is possible that the Attorney G eneral’s direction and supervision of the case could be facilitated by discussing developments (including developments brought forth before the grand jury) with the President and NSC members such as the Secretary o f State. However, disclosure of such 2 A lthough the President and some m em bers o f the N SC are attorneys, they are not ’‘attorneys for the g overnm ent” in the sense in w hich that term is used in R ule 6(e) 61 O pinions o f th e O ffice o f L egal C ounsel grand jury m aterials could not be m ade under the (A)(ii) exception for mere pur­ poses o f general policymaking. W hile we find no case authority specifically addressing (A)(ii) disclosures to the President or senior government officials at the Cabinet level, we believe the lan­ guage o f the subsection, its legislative history, and judicial opinions interpreting it are com patible with such disclosures under the limitations noted. The text of the (A)(ii) exception on its face allows for disclosures to the Presi­ dent or to NSC officials in circumstances where the Attorney General (in her ca­ pacity as “an attorney for the government”) deem s such disclosures necessary to obtain the assistance of such officials in the performance of her duties to enforce federal criminal law. In this regard, there is no persuasive reason why the term “governm ent personnel” as used in subparagraph (A)(ii) should be narrowly con­ strued to exclude the President or C abinet-level officials. The (A)(ii) “governm ent personnel” exception was enacted in 1977. Act of July 30, 1977, Pub. L. No. 95-78, § 2(a), 91 Stat. 319, 319. The Senate Report on the 1977 am endm ent explained its origins and purpose as follows: The Rule as redrafted is designed to accommodate the belief . . . that Federal prosecutors should be able, without the time-consuming requirem ent of prior judicial interposition, to make such disclosures o f grand jury information to other government personnel as they deem necessary to facilitate the performance o f their duties relating to criminal law enforcement. S. Rep. No. 95-354, at 8 (1977), reprinted in 1977 U.S.C.C.A.N. 527, 531 (“ 1977 Senate R eport”) (em phasis added). The R eport’s use o f the permissive phrase “as they deem necessary” strongly supports the view that Congress intended federal prosecutors to have broad leeway in deciding what government personnel should have access to grand jury materials for purposes o f facilitating enforcement func­ tions. Assessing this legislative history of the (A)(ii) exception in In re Perlin, 589 F.2d 260 (7th Cir. 1978), the Seventh Circuit stated: [T]he history o f the am endm ents of rule 6 ( e ) . . . clearly indicates the continuing Congressional support for inter-agency cooperation and the active participation of agency personnel, including agency attorneys, in grand jury proceedings. Id. at 267. The Supreme C o u rt’s opinion in United States v. Sells Engineering, Inc., 463 U.S. 418 (1983), provides further insight regarding the intended scope of the (A )(ii) exception. Sells held that attorneys in the Civil Division of the Department 62 D isclosure o f G rand Jury M ailers to the P resident an d O ther O fficials of Justice could not obtain automatic direct disclosure of grand jury materials from Department prosecutors under the (A)(i) exception where the purpose of the dis­ closure was for use in civil suits as opposed to criminal law enforcement. Under those circumstances, the Court held that the Civil Division attorneys must instead apply for court-approved disclosure under the (C)(i) exception applicable to m at­ ters related to both civil and criminal judicial proceedings. In the course of its opinion, however, the Court emphasized the sharp distinction between the auto­ matic subsection (A) exceptions applicable to criminal law enforcement and the more restrictive, court-approved subsection (C) exceptions applicable in the civil context. Referring to materials in the 1977 Senate Report, quoted above, the Court said that they reflectf] the distinction the Senate Committee had in mind: “Federal prosecutors ” are given a free hand concerning use o f grand jury materials, a t least pursuant to their “duties relating to criminal law enforcement"-, but disclosure of “grand jury-developed evidence for civil law enforcement purposes” requires a (C)(i) court order. Id. at 441-42 (emphasis added). Other opinions also suggest a relatively expansive interpretation of the “government personnel” exemption. In United States v. Cook, 794 F.2d 561 (10th Cir.), cert, denied, 479 U.S. 889 (1986), the court upheld applicability of the (A)(ii) exception to disclosures to two state police officers who were deputized as Special Deputy U.S. M arshals to assist in an investigation of illegal drug activities. The court stressed that the officers “were needed to aid in the investigation and that the disclosures were necessary to effective aid” and held that they should be “included within even the most restrictive definition” o f the government personnel exemption. Id. at 565; see also United States v. Kilpatrick, 821 F.2d 1456, 1471 (10th Cir. 1987), aff’d sub nom. Bank o f Nova Scotia v. United States, 487 U.S. 250 (1988) (“Federal employees assisting the prosecutor in the investigation and prosecution of federal criminal violations are permitted access to grand jury mate­ rials without prior court permission. However, such support personnel may not use the material except for purposes of assisting Government attorneys to enforce fed­ eral criminal laws.”); United States v. Claiborne, 765 F.2d 784, 795 (9th Cir. 1985), cert, denied, 475 U.S. 1120 (1986) (holding that (A)(ii) authorizes disclo­ sure to federal officials who assist the prosecution in collecting evidence for a case). These cases demonstrate that the category of “government personnel” to whom disclosures may be made should not be narrowly construed. We therefore see no reason to conclude that the President and other officials o f the NSC could not qualify as “government personnel” for purposes of this exemption. Rather, the key factor in determining the applicability of this exemption to disclosure = of the kind 63 Opinions o f th e O ffice o f L egal C ounsel proposed is the extent to which the disclosure is limited to the purpose of obtaining the assistance o f the President and other officials in the Attorney General’s crimi­ nal law enforcem ent activities. See Sells, 463 U.S. at 442. If disclosures are con­ fined to that purpose, they should qualify for coverage under the (A)(ii) exception. If the Attorney General does rely upon the (A)(ii) exception to disclose grand jury m aterial w ithout prior court approval in this context, a list naming all the offi­ cials to whom such disclosures are m ade must be submitted to the district court that em paneled the grand jury. Fed. R. Crim. P. 6(e)(3)(B). While the rule does not explicitly require subm ission of the list of nam es before the disclosure is made, it has been held that subm ission of the names should ordinarily be made prior to dis­ closure of the m aterials. United States v. Hogan, 489 F. Supp. 1035, 1038 (W.D. W ash. 1980) (citing the 1977 Senate Report at 8, where it was stated, “[a]lthough not expressly required by the rule, the Com m ittee contemplates that the names of such personnel will generally be furnished to the court before disclosure is made to them ”). W e believe that, when practicable, the list of names should be submitted prior to the disclosures. B. Subsection (B): E xceptions Requiring Court Approval Subsection 6(e)(3)(C) o f the rule sets forth four additional exceptions from its general ban on disclosure of grand jury materials. The only one of these excep­ tions relevant to the question posed is the (C)(i) exception, which provides: (C) D isclosure otherwise prohibited by this rule of matters occur­ ring before the grand jury m ay also be made — (i) when so directed by a court preliminarily to or in con­ nection with ajudicial proceeding; This exception has been narrowly interpreted by the Supreme Court. In United States v. Baggot, 463 U.S. at 480, the Court held that the (C)(i) exception did not provide a basis for disclosing grand jury material to agents of the Internal Revenue Service (“IRS”) for purposes of conducting an audit to determine the erstwhile grand jury target’s civil tax liability. The Court first noted that disclosure under (C)(i) can only be justified where there is a “particularized need” for access to the materials and where that need is related to a judicial proceeding. The Court then elaborated upon the latter prerequisite: It reflects a judgm ent that not every beneficial purpose, or even every valid governmental purpose, is an appropriate reason for breaching grand jury secrecy. Rather, the Rule contemplates only uses related fairly directly to some identifiable litigation, pending or 64 D isclosure o f G rand Jury M atters to the P resident a n d O ther O fficials anticipated . . . . If the primary purpose of disclosure is not to assist in preparation or conduct of a judicial proceeding, disclosure under (C)(i) is not permitted. Id. The Baggot C ourt’s restrictive interpretation confines the (C)(i) exception to disclosures that are closely and directly related to some identifiable litigation. However, to the extent that disclosures of the kind described by the Attorney Gen­ eral could satisfy that standard, there is no apparent reason why this exception would not extend to such disclosures. The primary practical value of the (C)(i) exception in this context is that it permits disclosures that are related to civil ju d i­ cial proceedings as well as criminal. Prior judicial approval for (C)(i) disclosures must be obtained by filing a peti­ tion with the district court where the grand jury convened. Fed. R. Crim . P. 6(e)(3)(D). When the government is the petitioner, ex parte hearings are author­ ized. Id. If the court approves the petition, the court specifies the manner, time, and conditions of the disclosure. Id. 6(e)(3)(C). II. Disclosures to President under Article II Apart from the enumerated exceptions from Rule 6(e)’s prohibition against dis­ closure of grand jury material, we believe that the Attorney G eneral’s disclosures of such materials to the President could in some circumstances be authorized on broader constitutional grounds. As the repository of all executive power in the national government, the President is charged with the duty to “take Care that the Laws be faithfully executed.” U.S. Const., art. II, §§ 1,3. Accordingly, there may be circumstances in which his constitutional responsibilities entitle the President to obtain disclosure of grand jury information that has already been made available to the Attorney General, even where that disclosure might not be specifically author­ ized by one o f the exceptions under Rule 6(e). In a brief memorandum prepared to provide responses to W atergate-related press inquiries in 1973, this Office opined that it “is not altogether clear” whether the President may obtain access to the transcript of a federal grand jury investiga­ tion.3 The memorandum first advised that the restrictive language of Rule 6(e) “seemingly precludes the disclosure o f [matters occurring before the grand jury] to the President because he is not a member of the group specifically authorized to obtain this information.” Id. at 1. This aspect of the memorandum may be attrib­ uted to the fact that the (A)(ii) exception for “government personnel” had not yet been incorporated in the rule at the time the opinion was written. However, the 3 M em orandum fo r H orace W ebb, A cting D irector, Public Inform ation O ffice, from Robert G. D ixon, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, Re. Q uestions fr o m the Press on th e W atergate In v e s­ tigation (A pr. 30, 1973) 65 Opinions o f the O ffice o f L egal C ounsel memorandum went on to state, “it can be argued that the President by virtue of his responsibility in administering the executive branch is authorized to obtain the transcripts of testimony before a grand jury.” Id. Stressing that all executive power is vested in the President, and his particular obligation to take care that the laws be faithfully executed, U.S. Const, art. II, §§ 1 ,3 , the memorandum stated: [T]hat pow er which is vested in the Attorney General to supervise all litigation empowers the President to supervise the litigation and to perform any functions incidental thereto because the power o f the Attorney General is a residue o f the m ore general power vested in the President by the Constitution. See also 1 Op. A.G. 453 (1855) (the heads o f all Departments are subject to the direction of the President). Id. at 2. The memorandum added that its opinion on this question was “purely hypothetical” because the President had ordered that no transcripts o f testimony before the W atergate grand jury were to be sent to the W hite House. Id. A m em orandum opinion prepared for the President by Attorney General Griffin Bell in 1977 provides additional pertinent insight regarding the President’s consti­ tutional authority in working with the Attorney General. Proposals Regarding an Independent Attorney General, 1 O p. O.L.C. 75 (1977). That opinion expressed “serious doubts” as to the constitutionality of certain proposed legislation provid­ ing that the Attorney General should be appointed for a definite term and remov­ able from office only for cause or m alfeasance. The opinion placed great stress on the President’s constitutional responsibility as C hief Executive to supervise the law enforcem ent functions o f the Attorney General, stating: Indeed, the President must be held accountable for the actions o f the executive branch; to accomplish this he must be free to establish policy and define priorities. Because laws are not self-executing, their enforcem ent obviously cannot be separated from policy con­ siderations. The Constitution contem plates that the Attorney Gen­ eral should be subject to policy direction from the President. As stated by the Supreme Court: “The Attorney General is . . . the hand o f the President in taking care that the laws of the United States . . . be faithfully executed.” Ponzi v. Fessenden, 258 U.S. 254, 262 (1922). Removing the Attorney General from the Presi­ d en t’s control would make him unaccountable to the President, who is constitutionally responsible for his actions. 66 D isclosure o f G rand Jury M atters to the P resident a n d O ther Officials Id. at 76; see also M yers v. United States, 272 U.S. 52, 133 (1926) (stressing that “[e]ach head of a department is and must be the President’s alter ego in the matters of that department where the President is required by law to exercise authority”). The foregoing Attorney G eneral’s opinion focused on the President’s supervi­ sory authority over the Attorney General in the context of the removal power. The constitutional principles it invoked are nevertheless pertinent to the President’s ability to obtain information needed to discharge his responsibilities relative to the Attorney General’s functions and to “take care that the laws are faithfully exe­ cuted.” In some circumstances, we believe that the President’s Article II responsi­ bilities in this area may independently justify the Attorney G eneral’s disclosure to him of pertinent grand jury information. A prime example of such circumstances might be a grand jury investigation of major international terrorist activity in the United States, involving a threat to domestic peace and national security. In such a case, the President should be able to share grand jury information legitimately pos­ sessed by the Attorney General in order to aid the President’s handling o f the over­ all law enforcement crisis. Similarly, presidential access to such grand jury information would also appear justified under the removal power, see M yers, in a case where, for example, the integrity or loyalty of a presidential appointee holding an important and sensitive post was implicated in the grand jury investigation. Although we find no opinions directly addressing this issue, several cases sug­ gest that the constitutional duties of the respective branches may provide inde­ pendent support for their access to grand jury information. In M atter o f Grand Jury Subpoena o f Rochon, 873 F.2d 170, 174 (7th Cir. 1989), the court observed as follows in reversing a district court order disqualifying the Attorney General from participating in a grand jury investigation on alleged conflict o f interest grounds: [A] federal district court order prohibiting the Attorney General of the United States from participating in a grand jury investigation is no small matter, even if the investigation could continue in his ab­ sence. Since initiating a criminal case by presenting evidence be­ fore the grand jury is ‘“ an executive function within the exclusive prerogative of the Attorney G eneral,” ’ United States v. Chanen, 549 F.2d 1306, 1312-13 (9th Cir.) (quoting In re Persico, 522 F.2d 41, 54-55 (2d Cir. 1975)), cert, denied, 434 U.S. 825, 98 S. Ct. 72, 54 L.Ed.2d 83 (1977), such an order raises sharp separation-of-powers concerns. As the Ninth Circuit has stated, although the ‘“ grand jury is subject to a supervisory power in the courts, aimed at preventing abuses o f its processes or authority,’” id. at 1313 (quoting 1 W right, Federal Practice and Procedure § 101, at p. 151 (1969)), “the separation-of-powers principle imposes significant limits on it.” 67 O pinions o f the O ffice o f L egal C ounsel Id. (quoting United States v. Gatto, 763 F.2d 1040, 1046 (9th Cir. 1985)). Two low er court decisions of note have upheld congressional access to grand jury m aterials in aid of that branch’s constitutional power o f impeachment. In Grand Jury Proceedings o f Grand Jury No. 81-1, 669 F. Supp. 1072, 1074-75 (S.D. Fla.), a ff’d, 833 F.2d 1438 (1 1th Cir. 1987), the court held that the House Judiciary C om m ittee was entitled to receive the record of grand jury proceedings in furtherance o f its im peachm ent investigation of Judge Alcee Hastings. Although the com m ittee’s access to the materials was separately justified on the basis of Fed. R. Crim. P. 6(e)(3)(C)(i), the court held that the disclosure was also justified on the basis of, inter alia, the Impeachment Clause. U.S. Const, art. I, § 2; see also In re Report and Recommendation of June 5, 1972 G rand Jury’, 370 F. Supp. 1219 (D.D.C.), mandamus denied sub nom. Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974) (district cou rt’s decision granting the W atergate grand ju ry ’s request that its report on the matters it investigated be submitted to the House Judiciary Com m it­ tee, upheld by court o f appeals in denying m andam us relief). These decisions should be read with some caution because the disclosures of the grand jury m aterials at issue were directly related to impeachment proceedings — which have been viewed as within the coverage o f the Rule 6(e)(3)(C)(i) exception — and were undertaken only after obtaining prior judicial approval. Nonetheless, they dem onstrate the courts’ willingness to recognize an independent constitutional basis for disclosures o f grand jury inform ation outside the provisions o f Rule 6(e). Thus, if congressional access to grand jury m aterials may be independently justi­ fied on the basis o f its Article I pow er, it would be anomalous to contend that presidential access to such materials could not be justified on the basis of the President’s Article II powers. In the absence o f judicial precedent on this point, however, any disclosure of grand jury m atter to the President on this basis should be cautiously undertaken and reserved for matters o f clear executive prerogative in areas where the Rule 6(e)(3)(A )(ii) exception could not be used. Because such disclosures would be based on the P resident’s inherent constitutional powers rather than Rule 6(e), the rule’s various procedural requirements would not be applicable. Nonetheless, the risk o f constitutional confrontation could be minimized by seeking the approval of the district court that impaneled the grand jury, invoking the court’s inherent authority to disclose grand jury m aterials for reasons other than those specified in Rule 6(e). A federal court’s “inherent” pow er to authorize disclosure of grand jury matters outside the param eters o f Rule 6(e) was recognized by the Eleventh Circuit in In re Petition, 735 F.2d 1261, 1268 (11th Cir.), cert, denied, 469 U.S. 884 (1984). At issue was w hether the Judicial Council of the Eleventh Circuit could have access to records of a federal grand jury in connection with the Council’s investigation of Judge A lcee H astings under the Judicial C ouncils Reform and Disability Act, 28 U.S.C. § 372. The court recognized that none o f the Rule 6(e) exceptions applied 68 D isclosure o f Grand Ju ry M atters to the P resident a n d O ther O fficials to the request, although it noted that the investigation in question was “very simi­ lar” to the “judicial proceedings” covered by the Rule 6(e)(3)(C)(i) exception. Nonetheless, the Eleventh Circuit affirmed the district court’s holding that Rule 6(e) did not preclude it “from fashioning an alternate method for disclosure under its general supervisory authority over grand jury proceedings and records.” 735 F.2d at 1267-68.4 As the court explained the inherent power doctrine: [I]t has been authoritatively said that [Rule 6(e)] is not the true source of the district court’s power with respect to grand jury rec­ ords but rather is a codification of standards pertaining to the scope of the power entrusted to the discretion of the district court. Id. at 1268. After citing examples of how the courts have influenced the develop­ ment of Rule 6(e) through the exercise of their “inherent power” over grand jury materials, the court stated: These examples from the history o f Rule 6(e) indicate that the ex­ ceptions permitting disclosure were not intended to ossify the law, but rather are subject to developm ent by the courts in conformance with the rule’s general rule o f secrecy. Id. at 1269. The court concluded that “it is certain that a court’s power to order disclosure of grand jury records is not strictly confined to instances spelled out in the rule,” id. at 1268, but it stressed that the courts can only order disclosure out­ side the rule in “exceptional circumstances consonant with the rule’s policy and spirit.” Id. at 1269. Although the Eleventh Circuit’s “inherent power” doctrine has not been widely cited by the courts in published opinions, it does provide one recognized frame­ work for seeking judicial approval of disclosures of grand jury material to the President based on constitutional authority rather than on Rule 6(e). W ALTER DELLINGER Acting Assistant Attorney General Office o f Legal Counsel 4 T he Eleventh C irc u it's holding on this issue has been criticized in one d istrict court decision In M atter o f E lectronic S u rveillance, 596 F. Supp 991, 1001 (E D M ich 1984), the court asserted that the “ Eleventh C irc u it's reliance on the inherent pow ers d o ctrin e is su sp ect.’” In support o f this position, the d istrict court c ontend ed that the Suprem e C o u rt's decision in U nited S ta te s v. Baggot 463 U S. 4 76 (1983) had im plicitly rejected extra-R ule 6(e) disclosures because the trial court in B aggot had found that disclosure w as author­ ized un d er the inherent pow ers doctrine, b u t the Suprem e C o u rt had held against disclosure b ecau se the standards o f Rule 6 (e )(3 )(C )(l) had not been satisfied. W e do not read the Baggot decision as taking any position, one w ay or the other, on the inherent pow ers d o ctrin e because, as the C ourt noted, certiorari there was lim ited to the narrow question o f w hether an IRS civil tax audit is ‘‘p re lim in a ry ] to or in connection w ith a ju d icial proceeding ’ under the (C )(i) e x cep tio n Id at 478 (alteration in original) 69

Write a legal research memo on the following topic.

Appointment of a Federal Judge to the United Nations Delegation If this were a matter of first impression, appointing a federal judge to be a representative of the United States to the General Assembly of the United Nations would be inconsistent with the constitutional doctrines of separation of powers and independence of the judiciary. However, because of the longstanding practice of appointing federal judges to temporary office in the Executive Branch, and the absence of any explicit constitutional text, it cannot be maintained that such an appointment would be unconstitutional. August 5, 1976 MEMORANDUM OPINION FOR THE ASSOCIATE COUNSEL TO THE PRESIDENT This is in response to your inquiry relating to the appointment of a judge of the U.S. Court of Appeals1 to be a representative of the United States to the General Assembly of the United Nations. Section 2(c) of the United Nations Participation Act of 1945, Pub. L. No. 79264, § 2(c), 59 Stat. 619, codified at 22 U.S.C. § 287(c) (1976), provides that the President shall appoint by and with the advice and consent of the Senate not to exceed five representatives of the United States to attend a specified session or sessions of the General Assembly of the United Nations. Pursuant to section 3 of the Act, 22 U.S.C. § 287a (1976), those representatives “act in accordance with the instructions of the President transmitted by the Secretary of State.” Even though the Constitution does not contain for judges any express prohibition from simultaneous service in the Executive Branch similar to that established for congressmen under Article I, Section 6, Clause 2, I would nonetheless advise, if this were a matter of first impression, that an appointment of the sort suggested would be inconsistent with the constitutional doctrines of separation of powers and independence of the judiciary. However, in addition to the absence of any explicit prohibition, there is a constitutional practice of appointing federal judges to temporary office in the Executive Branch which goes back to the diplomatic service rendered by Chief Justices John Jay and Ellsworth during the administrations of Presidents Washington and John Adams. The last instance was the appointment of District Judge Boldt to the position of Chairman of the Pay Board in 1971.2 Because of this longstanding practice, and the absence of any explicit 1 We have been informally advised that the judge in question is in active service. For other instances, see, e.g., International Military Tribunal, 40 Op. Att’y Gen. 423 (1945); Nominations of Hon. Marvin Jones and Hon. John Caskie Collet, S. Exec. Rep. No. 80-7 (1947), reprinted in Independence of Judges: Should They Be Used for Non-Judicial Work?, 33 A.B.A.J. 792 (1947); Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law 704 & n. (1956) (“Mason”). 2 393 Supplemental Opinions of the Office of Legal Counsel in Volume 1 constitutional text, I think it cannot be maintained that such an appointment would be unconstitutional. During this century, however, it has been asserted with increasing frequency that, while the practice of appointing judges to temporary positions in the Executive Branch may have been justified by the conditions prevailing during the early years of the Republic, “the propriety of the practice should be examined anew if the integrity of the judiciary in American life is to be preserved.” S. Exec. Rep. No. 80-7, supra note 2, at 2. That report cites the following undesirable aspects of such appointments: (1) Reward may be conferred or expected in the form of elevation to a higher judicial post. (2) The judicial and executive functions may be improperly merged. (3) The absence of the judge from his regular duties increases the work load of the other judges of the court, if any, and may result in an impairment of judicial efficiency in the disposition of cases. (4) Nonjudicial activities may produce dissension or criticism and may be destructive of the prestige and respect of the Federal judiciary. (5) A judge, upon resumption of his regular duties, may be called upon to justify or defend his activities under an Executive commission. Id. at 6 (footnotes omitted).3 In 1958, Chief Justice Warren, in a letter addressed to Congressman Keating, commented adversely on a proposal to have a justice of the Supreme Court serve on a commission to determine presidential disability: MY DEAR MR. CONGRESSMAN: During the time the subject of inability of a President to discharge the duties of his office has been under discussion, the members of the Court have discussed generally, but without reference to any particular bill, the proposal that a member or members of the Court be included in the membership of a Commission to determine the fact of Presidential inability to act. 3 For Chief Justice Stone’s rejection of President Franklin D. Roosevelt’s offer to serve on a commission to study the rubber supply during World War II, and for his attitude on Justice Jackson’s service on the Nuremberg Tribunal, see Mason, supra note 2, at 709–20. 394 Appointment of a Federal Judge to the United Nations Delegation It has been the belief of all of us that because of the separation of powers in our Government, the nature of the judicial process, the possibility of a controversy of this character coming to the Court, and the danger of disqualification which might result in lack of a quorum, it would be inadvisable for any member of the Court to serve on such a Commission. I realize that Congress is confronted with a very difficult problem, and if it were only a matter of personal willingness to serve that anyone in the Government, if requested to do so, should make himself available for service. However, I do believe that the reasons above mentioned for nonparticipation of the Court are insurmountable.4 This trend culminated in 1973 in the approval by the Judicial Conference of the United States of Canon 5(G) of the Code of Judicial Conduct of United States Judges: Extra-judicial appointments. A judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice. A judge, however, may represent his country, state, or locality on ceremonial occasions or in connection with historical, educational, and cultural activities. Commentary: Valuable services have been rendered in the past to the states and the nation by judges appointed by the executive to undertake important extra-judicial assignments. The appropriateness of conferring these assignments on judges must be reassessed, however, in light of the demands on judicial manpower created by today’s crowded dockets and the need to protect the courts from involvement in extra-judicial matters that may prove to be controversial. Judges should not be expected or permitted to accept governmental appointments that could interfere with the effectiveness and independence of the judiciary. Since the duties of the United States Representative to the General Assembly of the United States are not of a historical, educational, or cultural nature, Canon 5(G) precludes a federal judge on active duty from accepting that position. It is far 4 Reprinted in Presidential Inability: Hearings Before the Subcomm. on Constitutional Amendments of the S. Comm. on the Judiciary, 85th Cong., 2d Sess. at 14 (1958). Nevertheless, Chief Justice Warren accepted the position of Chairman of the Commission to investigate the assassination of President Kennedy. 395 Supplemental Opinions of the Office of Legal Counsel in Volume 1 from clear what sanctions are available for violation of the Judicial Conference’s Canons. Some judges have openly refused to comply with those portions which relate to required financial disclosure—with apparent impunity except for publication of their names by (I believe) the Administrative Office of the United States Courts. Nonetheless, it does seem inadvisable to place the President in the position of prompting action which is in violation of the Canons. Finally, I wish to recall the fact that the Executive Branch has taken a rather firm stand of late on various matters bearing upon the principle of separation of powers. I refer in particular to our opposition to disapproval of executive action by one-house or concurrent resolutions, and congressional participation in the appointment of executive officers. It would invite attack to combine such a pristine view of separation vis-à-vis the Congress with a latitudinarian stance insofar as the courts are concerned. ANTONIN SCALIA Assistant Attorney General Office of Legal Counsel 396

Write a legal research memo on the following topic.

Service Credit for Retirement Annuities of USPS Employees When USPS Has Not Made Required Contributions The Office of Personnel Management may not address the United States Postal Service’s failure to make statutorily required retirement contributions by denying its employees accrued service credit under the Federal Employees’ Retirement System during their periods of qualifying federal employment. November 1, 2011 MEMORANDUM OPINION FOR THE GENERAL COUNSEL OFFICE OF PERSONNEL MANAGEMENT AND THE GENERAL COUNSEL AND EXECUTIVE VICE PRESIDENT UNITED STATES POSTAL SERVICE On June 22, 2011, the United States Postal Service (“USPS” or “Postal Service”) notified the Office of Personnel Management (“OPM”) that, because of its financial difficulties, the Postal Service, as a cash conservation measure, was suspending its employer contributions to the Civil Service Retirement and Disability Fund (“the Fund”) on behalf of those postal employees covered by the Federal Employees’ Retirement System Act (“FERS”), 5 U.S.C. §§ 8401–8479 (2006 & Supp. IV 2010). In light of that suspension, OPM requested an opinion from our Office regarding (1) whether, and to what extent, OPM has discretion to offset the Postal Service’s obligation to make employer retirement contributions against a “surplus” the Postal Service asserts that it has accumulated in the Fund; and (2) whether postal employees are entitled to receive service credit, for purposes of determining their eligibility for retirement and calculating the amount of their retirement annuity, for periods of employment during which the Postal Service has not made its required employer contributions. 1 The Postal Service, an independent agency, joined OPM in the request for an opinion and agreed to be bound by our decision. 2 See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal Counsel, from Elaine Kaplan, General Counsel, Office of Personnel Management (July 14, 2011) (“OPM Memo”). OPM enclosed with its submission an undated paper it had received from USPS, with the heading “Effect of Suspension of Agency Contribution to 1 181 35 Op. O.L.C. 181 (2011) In its submission to the Office of Legal Counsel (“OLC”), the Postal Service indicated that, despite earlier disagreement, it now “does not contest OPM’s position that the Postal Service is still obligated by the statute to make its employer contribution, despite the existence of the surplus.” USPS Memo at 14; see also id. at 4. The Postal Service, however, also specifically stated that it considers the question “whether the [Postal Service’s] Board [of Governors] was justified in its decision to suspend the employer contribution in order to conserve cash so as to avoid a shutdown in mail service” to be outside “the scope of [OLC’s] review.” Id. at 3 n.2. Thus, we do not address (i) whether OPM could offset the Postal Service’s required contributions against any surplus it may have in the Fund; (ii) whether the Postal Service’s apparent statutory violation may be excused; or (iii) what other avenues of recourse OPM may have against the Postal Service for its failure to make the statutorily required contributions. Instead, this opinion addresses only the question whether, under the relevant provisions of the FERS statute, postal employees are entitled to receive service credit for periods during which the Postal Service has not made the required employer contributions to the Fund. The Postal Service argues that its employees should receive such credit. Id. at 2–14. OPM disagrees, maintaining that employees cannot be credited with service for periods in which no employer contributions have been made into the Fund. OPM Memo at 5–9. For the reasons that follow, we agree with the Postal Service that OPM may not address the Postal Service’s failure to make statutorily required contributions by denying its employees accrued service credit under FERS during their periods of qualifying federal employment. I. In 1986, Congress enacted the Federal Employees’ Retirement System Act of 1986, Pub. L. No. 99-335, 100 Stat. 514 (codified as amended at FERS on Employees” (“USPS Paper”). OPM has agreed provisionally to provide service credit to postal employees who may retire while the issue is pending before our Office. OPM Memo at 2. 2 See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal Counsel, from Mary Anne Gibbons, General Counsel and Executive Vice President, United States Postal Service (Aug. 12, 2011) (“USPS Memo”). 182 Service Credit for Retirement Annuities of USPS Employees 5 U.S.C. §§ 8401–8479 and scattered U.S.C. sections), a system of retirement and other benefits for federal employees that will gradually supersede the Civil Service Retirement System (“CSRS”), which has been in effect since 1920. See Pub. L. No. 66-215, 41 Stat. 614 (1920) (codified as amended at 5 U.S.C. §§ 8331–8351 (2006 & Supp. 2010)). In enacting FERS, Congress set out, among other things, “to establish a Federal employees’ retirement plan which is coordinated with title II of the Social Security Act”; “to ensure a fully funded and financially sound retirement benefits plan for Federal employees”; and “to assist in building a quality career work force in the Federal Government.” Pub. L. No. 99-335, § 100A(1), (2), & (5), 100 Stat. at 516 (codified at 5 U.S.C. § 8401 note (2006)). 3 With certain exceptions, the Act became effective on January 1, 1987. Id. § 702, 100 Stat. at 631 (codified at 5 U.S.C. § 8401 note). Since then, most newly hired federal employees who are covered by Social Security have also been covered by FERS. FERS is a three-tiered retirement system that consists of Social Security, a basic annuity, and a Thrift Savings Plan (“TSP”). See 5 U.S.C. § 8403 (2006) (except as otherwise provided, benefits payable under FERS are in addition to benefits payable under the Social Security Act); id. §§ 8410–8425 (2006 & Supp. IV 2010) (basic annuity); id. §§ 8431– 8440f (2006 & Supp. IV 2010) (TSP). 4 The Postal Service and its employees fall within FERS coverage. 39 U.S.C. § 1005(d) (2006 & Supp. III 2009). The dispute between OPM and the Postal Service concerns the basic annuity. Under FERS, an “employee,” as defined in 5 U.S.C. § 8401(11) (2006), must complete at least five years of creditable civilian service under 5 U.S.C. § 8411 to be eligible for the annuity. 5 U.S.C. § 8410 From Congress’s enactment of the Social Security Act in 1935, Pub. L. No. 74-271, 49 Stat. 620 (1935), until 1983, federal employees were excluded from Social Security coverage. In 1983, the Social Security Act was amended to cover newly hired federal employees. Pub. L. No. 98-21, § 101, 97 Stat. 65, 67–70 (1983) (codified at 42 U.S.C. § 410). That expansion of Social Security was a major impetus behind the adoption of FERS, the new retirement system for federal employees, in 1986. See generally S. Rep. No. 99-166, at 1–2 (1985) (providing background on the CSRS and amendment of the Social Security Act to cover federal employees). 4 The TSP is a tax-deferred savings plan for federal employees in which employee contributions are matched in part by employer agency contributions. 3 183 35 Op. O.L.C. 181 (2011) (2006). As a general matter, creditable service includes “employment as an employee . . . after December 31, 1986.” Id. § 8411(b)(1). With certain exceptions, the annuity of a retiring employee is 1 percent of that individual’s average pay (the highest average pay in effect over any three consecutive years of service) multiplied by that individual’s “total [years of] service.” Id. §§ 8415(a), 8401(3) (defining “average pay”). The statute establishes different potential retirement ages for employees depending on the number of years of service completed. Id. § 8412 (2006 & Supp. IV 2010). For example, an employee who is separated from service after becoming 62 years old and completing five years of service is entitled to an annuity. Id. § 8412(c). “[S]ervice,” in turn, “means service which is creditable under section 8411.” Id. § 8401(26). As these provisions make clear, the determination whether service is creditable under the statute has important ramifications for an employee’s eligibility to receive a basic annuity, the applicable retirement age, and the calculation of the amount of the annuity. 5 The FERS basic annuity is funded through a combination of employee deductions and employer agency contributions to the Civil Service Retirement and Disability Fund. Id. §§ 8422, 8423, 8401(6) (2006 & Supp. IV 2010). Under FERS, the employing agency is required to deduct and withhold from each employee’s basic pay a percentage that is equal to 7 percent of basic pay (with a different percentage applicable to Members of Congress and certain categories of employees) less the Old Age, Survivors, and Disability Insurance (“OASDI”) tax rate in effect, which is now 6.2 percent. Id. § 8422(a), (c) (2006 & Supp. IV 2010); 26 U.S.C. § 3101(a) (2006). Accordingly, the employer is required by the statute to deduct 0.8 percent of most employees’ basic pay for contribution to the Fund. The employing agency’s own contribution to the Fund is much larger and is based on the “normal-cost percentage,” which is “the entry-age normal cost of the provisions of [FERS] which relate to the Fund,” as computed by OPM “in accordance with generally accepted actuarial Creditable service is also important to other facets of the retirement system. For example, an employee is not entitled to retain the employer’s contributions to the TSP and earnings attributable to such contributions before completing specific periods of service. See 5 U.S.C. § 8432(g)(2) (2006). 5 184 Service Credit for Retirement Annuities of USPS Employees practice and standards” and “expressed as a level percentage of aggregate basic pay.” 5 U.S.C. § 8401(23) (defining “normal-cost percentage”); see id. § 8423(a) (2006 & Supp. IV 2010). 6 Under the statute, “each employing agency having any employees or Members subject to section 8422(a) shall contribute to the Fund an amount” that is the product of the applicable normal-cost percentage and the aggregate amount of basic pay payable by the agency for the period involved. Id. § 8423(a)(1). In determining the normal-cost percentage to be applied, the employee deductions required by section 8422 must be taken into account. Id. § 8423(a)(2). 7 Thus, for 6 “Entry age normal cost” is generally understood as the percentage of every paycheck that should be invested, over the total career of each employee in a group of new entrants, to pay fully for all benefits received by that group, including all eligible survivors. Normal cost is formally defined as the present value of future benefits divided by the present value of future compensation. These values are expressed as a percentage of payroll, and provide a consistent measure of relative pension costs over time. S. Rep. No. 99-166, at 35 (1985). OPM publishes the “normal cost percentages” for particular categories of employees in the Federal Register. At the time the Postal Service suspended its employer contributions to the Fund, the government-wide normal cost percentage for most employees was 12.5 percent. Federal Employees’ Retirement System; Normal Cost Percentages, 75 Fed. Reg. 35,098 (June 21, 2010). For the first pay period commencing on or after October 1, 2011, the normal cost percentage for most employees rose to 12.7 percent. Federal Employees’ Retirement System; Normal Cost Percentages, 76 Fed. Reg. 32,242, 32,243 (June 3, 2011). 7 Section 8422(a) requires that “[t]he employing agency shall deduct and withhold from basic pay of each employee . . . a percentage of basic pay.” 5 U.S.C. § 8422(a)(1). Thus, so long as the individual is an “employee,” see id. § 8401(11), and is not otherwise excluded from coverage under the statute, see id. § 8402 (2006), the individual is “subject to section 8422(a),” and the employing agency is required to make contributions to the Fund under section 8423. There is no dispute here that the Postal Service’s employees for whom the employer contributions have been withheld are “employees” for purposes of FERS. As a general matter, the FERS definition of “employee” refers to the definition of “employee” for CSRS benefits under chapter 83, in 5 U.S.C. § 8331(1) (2006). Section 8331(1), in turn, defines the term by reference to 5 U.S.C. § 2105. Under section 2105(a), an “employee” is an individual who is “appointed in the civil service” by a federal official; “engaged in the performance of a Federal function”; and “subject to the supervision” of a federal official. 5 U.S.C. § 2105(a) (2006); see Taylor v. OPM, 82 M.S.P.R. 237, 241 (M.S.P.B. 1999). Employees of the Postal Service, who are generally covered by the retirement statutes by virtue of 39 U.S.C. § 1005(d), must still meet the definition of “employee” to be covered by FERS. See Taylor, 82 M.S.P.R. at 241. An “employee” for purposes of FERS must also be covered by title II of the Social Security Act. 5 U.S.C. § 8401(11). 185 35 Op. O.L.C. 181 (2011) most employees, employing agencies contribute to the Fund an amount equal to 11.9 percent of basic pay—the aggregate normal cost of 12.7 percent minus the 0.8 percent employee deduction—which is more than 93 percent of the normal cost. OPM, which has authority to prescribe regulations under the statute, id. § 8461(g) (2006), has construed FERS to require the employing agency to “remit in full the total amount of normal cost (which includes both employee deductions and Government contributions), so that payment is received by the Fund on the day of payment to the employee of the basic pay from which the employee deductions were made.” 5 C.F.R. § 841.504(h) (2011); see also id. § 841.413 (2011). 8 II. The dispute between OPM and the Postal Service was precipitated by the Postal Service’s decision, in light of its current financial crisis, to conserve cash by suspending its employer contributions for the basic annuity, effective June 24, 2011, for those postal employees covered by FERS. OPM Memo at 1; USPS Memo at 2. The Postal Service is continuing to withhold employee deductions from basic pay; it also continues to make its automatic and matching contributions to the TSP accounts of FERS employees and to remit those contributions, along with employee TSP contributions. USPS Memo at 2. OPM does not dispute that the Postal Service and its employees continue to satisfy all the requirements of the statute except the agency’s obligation to make employer contributions to the Fund for the basic annuity. The question we must address is 8 FERS further requires OPM to compute the amount of the “supplemental liability” of the Fund as of the close of each fiscal year, both with respect to current or former employees of the Postal Service and other individuals. 5 U.S.C. § 8423(b)(1). The “supplemental liability” is the estimated excess of the actuarial present value of all future benefits payable from the Fund based on the service of current or former employees or Members of Congress over the sum of the actuarial present value of employee deductions, employer contributions, and the Fund balance. Id. § 8401(27). The amount of any supplemental liability must be amortized in 30 equal annual installments, with interest. Id. § 8423(b)(2). At the end of each fiscal year, OPM must notify the Postmaster General of the amount of the required installment computed with respect to current or former postal employees and the Secretary of the Treasury of the amount computed with respect to other individuals. Id. § 8423(b)(3). Upon receiving such notifications, the Postal Service is required to pay, and the Secretary of the Treasury is required to credit, to the Fund the amounts specified. Id. § 8423(b)(4). 186 Service Credit for Retirement Annuities of USPS Employees thus narrow: whether postal employees are entitled to service credit for retirement purposes for the periods in which the Postal Service has suspended its employer contributions under 5 U.S.C. § 8423, but in all other respects has complied with the FERS statute. OPM states that its “longstanding interpretation of the statute,” as codified in its regulations, provides that “in order for an employee to be covered under FERS, an agency must make the periodic contributions to the Retirement Fund that are required by law.” OPM Memo at 2. OPM does not claim that FERS expressly provides that employer contributions are a necessary precondition for employee coverage or that employees shall not receive service credit for periods in which their employing agencies fail to make employer contributions. Instead, OPM points out that section 8423 of FERS mandates that USPS must make contributions to the Fund on behalf of employees covered by FERS. See 5 U.S.C. § 8423(a)(1) (“[e]ach employing agency having any employees . . . subject to section 8422(a) shall contribute to the Fund” an amount that is based on the normal-cost percentage set by OPM) (emphasis added)). And while section 8423 does not expressly make the mandatory employer contributions a precondition to employee eligibility, in OPM’s view, the relevant OPM regulation does: To be covered under FERS, an individual must: (a) Be an employee, Member, or specifically covered by another provision of law; (b) Be covered by social security; (c) Have retirement deductions withheld from pay and have agency contributions made; and (d) Be paid based on units of time. Except as provided in § 842.104 and as excluded by § 842.105, an employee or Member is covered by FERS. 5 C.F.R. § 842.103 (2011) (emphasis added); see also id. § 842.304(a) (2011) (providing, with exceptions not relevant here, that “an employee . . . is entitled to credit for all purposes under FERS for a period of civilian service with the Government or the U.S. Postal Service—[p]erformed after December 31, 1986, which is covered service under subpart A of this part,” a reference back to section 842.103) (emphasis added). 187 35 Op. O.L.C. 181 (2011) As OPM explains, section 842.103 “merges the various statutory requirements applicable to FERS into one regulatory provision that determines whether an individual is covered by FERS.” OPM Memo at 5. OPM’s basic claim is thus that, “while there is no single provision in the statute which states that each of these requirements is essential to ‘coverage,’ when read as a whole, it was clearly reasonable for OPM to make coverage dependent upon compliance with all of the statutory requirements.” Id. at 6. In OPM’s view, section 842.103 makes “clear” that “to be ‘covered by FERS’ an individual must not only have deductions withheld from their pay—their employing agency must make the necessary contributions” as well. Id. at 5–6. On its face, section 842.103 is not as free from ambiguity as OPM suggests. In particular, the last sentence in the provision states that “[e]xcept as provided in § 842.104 and as excluded by § 842.105, an employee or Member is covered by FERS,” 5 C.F.R. § 842.103, language that appears to define coverage under FERS without making employer contributions a prerequisite. We do not think that the ambiguity in this language can be resolved by examining OPM’s practice because there does not appear to be any relevant practice: OPM has pointed us to no instance of an agency refusing to remit the contributions it is statutorily required to pay under CSRS or FERS. Cf. OPM Memo at 9 (stating that no agency has failed to make employer contributions under CSRS). Nonetheless, we assume that OPM’s interpretation of its own regulation is entitled to deference, and thus that section 842.103 has the meaning OPM suggests. See Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2261 (2011). In addition to relying on the statutory text and its regulation, OPM also finds support for its view in Congress’s purpose. OPM notes that “Congress created FERS as a fully funded pension system,” intending that “the Fund would be placed on a firm financial footing by requiring agencies to pay the full ‘normal costs’ for FERS employees.” OPM Memo at 6. In light of Congress’s “‘interest in sound fiscal and accounting management,’” id. at 7 (quoting S. Rep. No. 99-166, at 29 (1985)), OPM contends that it is “highly unlikely that Congress would have provided that employees would be considered ‘covered’ by FERS and credited for their service if their employing agencies did not make the requisite contribution to the Fund.” Id. 188 Service Credit for Retirement Annuities of USPS Employees The Postal Service, for its part, does not deny that FERS requires it to make its employer contributions, USPS Memo at 4, 14, or that Congress intended that FERS be placed on a sound financial footing, id. But it points out that Congress chose to further this goal by requiring all employers to contribute to the Fund, not by depriving employees of service credit in the highly unusual situation in which an agency fails to make its required payments. Id. at 2–3. The Postal Service contends that under the statute, “creditable service is generated so long as employees are performing the required service for the Federal government and are contributing the required amounts to their pension, without regard to whether the employing agency cannot or does not make its employer contribution.” Id. at 2. None of the key statutory provisions, in the Postal Service’s view, “indicate[s] that creditable service under FERS is dependent on the employer contribution.” Id. at 6. The Postal Service emphasizes that in enacting the basic annuity, Congress “intended to provide clearly defined and reliable benefits to employees”—a purpose that would be “vitiated by OPM’s interpretation, which would predicate the level of employee benefits on the funding decisions of agency officials.” Id. at 3; see also id. at 12. Accordingly, the Postal Service argues that OPM’s interpretation of FERS, as embodied in its regulations, is at odds with the statute or, at least, unreasonable, id. at 5, and that OPM cannot enforce the Postal Service’s statutory obligation to contribute by denying service credit to its employees. We assume that OPM’s authority to implement FERS by regulation, 5 U.S.C. § 8461(g), would entitle it, in appropriate circumstances, to deference in its construction of FERS pursuant to Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984). However, OPM’s construction of the statute is entitled to deference only “if the statute is silent or ambiguous with respect to the specific issue” at hand. Id. at 843. If, on the other hand, “Congress has directly spoken to the precise question at issue,” and in so doing made its intent clear, “that is the end of the matter.” Id. at 842. And here, for the reasons set forth below, we conclude that FERS makes clear that postal employees who otherwise qualify for retirement benefits under FERS are both covered by and accrue service credit under the statute notwithstanding the Postal Service’s failure to make its employer contributions pursuant to 5 U.S.C. § 8423. Thus, OPM’s interpretation of FERS—that OPM can address the 189 35 Op. O.L.C. 181 (2011) Postal Service’s failure to remit the required contributions by depriving employees of accrued service credit—is foreclosed by the statute. III. A. “We begin with the text of the statute.” Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1331 (2011). Section 8410 of FERS, which governs eligibility, provides: “Notwithstanding any other provision of this chapter, an employee or Member must complete at least 5 years of civilian service creditable under section 8411 in order to be eligible for an annuity under this subchapter.” 5 U.S.C. § 8410. Central to resolving this controversy is section 8411, which governs creditable service. It provides that “[t]he total service of an employee . . . is the full years and twelfth parts thereof, excluding from the aggregate the fractional part of a month, if any.” Id. § 8411(a)(1). Section 8411 further specifies, in relevant part, that for purposes of FERS, “creditable service of an employee . . . includes . . . employment as an employee . . . after December 31, 1986.” Id. § 8411(b), (b)(1). These provisions are not vague or unclear. They indicate plainly the category of employees who are eligible for FERS benefits, and Congress’s broad, but not unbounded, definition of “creditable service” for FERS purposes. Section 8401(11) excludes certain categories of individuals from the definition of “employee,” and section 8402 excludes certain categories of individuals from coverage under FERS. Id. §§ 8401(11), 8402. But these exclusions are irrelevant to the present dispute. As USPS points out, OPM does not argue that “the non-payment of the employer contribution means that Postal Service employees are no longer ‘employees’ under the FERS statute or that they now fall within one of the exceptions in 5 U.S.C. § 8402 by virtue of such non-payment.” USPS Memo at 6. And the postal employees potentially affected by their employer’s non-payment of its contributions are still engaged in “employment.” The plain language of FERS, then, supports the view that employees earn creditable service so long as they are employed as “employee[s]” after December 31, 1986, 5 U.S.C. § 8411(b)(1), regardless of whether their employer has suspended its contributions to the Fund. 190 Service Credit for Retirement Annuities of USPS Employees To be sure, as noted earlier, OPM acknowledges that FERS’s definition of “creditable service” does not mention employer contributions. Its argument is that a correct determination of what counts as “creditable service” under FERS does not depend on the wording of section 8411(b)(1) alone, but also on the overall statutory plan—in particular, on the fact that another provision of FERS clearly requires employer contributions as part of the overall FERS scheme. We agree that section 8423 of FERS requires employers to make contributions to the Fund. We further agree that “[i]nterpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006). However, the mere fact that employer contributions are a mandatory part of the overall FERS scheme does not indicate that OPM is authorized to suspend or eliminate the accrual of employees’ service credit as a remedy for an employer’s failure to make such contributions. Cf. Harris Trust & Sav. Bank v. Salomon Smith Barney Inc., 530 U.S. 238, 247 (2000) (ERISA’s “‘comprehensive and reticulated’ scheme warrants a cautious approach to inferring remedies not expressly authorized by the text” (citations and internal quotation marks omitted)). As noted above, the specific statutory provision that addresses creditable service says nothing that suggests that an employee’s accrual of credit depends on the fact or extent of employer contributions. Section 8423 of FERS likewise fails to mandate, or even suggest, that a lapse in an employing agency’s contributions should result in a denial of service credit to that agency’s employees. Certainly, as OPM states, section 8423 reflects Congress’s goal that “the Fund . . . be placed on a firm financial footing by requiring agencies to pay the full ‘normal costs’ for FERS employees.” OPM Memo at 6. But it does so not by stipulating that employees will earn service credit (and therefore future benefits) only if their employers make all required contributions, but rather by imposing on agency employers a legal obligation to make the required contributions. OPM itself has suggested no reason to think that in practice this statutory mechanism has proven ineffective in serving Congress’s goal. Cf. OPM Memo at 9 (“no agency has ever defaulted on its obligation to make the required contributions” under CSRS). 191 35 Op. O.L.C. 181 (2011) Moreover, the text of the FERS statute suggests that Congress considered the question of statutory mechanisms to address funding shortfalls and enacted a mechanism to deal with one kind of shortfall, without indicating that the suspension of employee service credit might be used as a solution to that or any other funding deficiency. Specifically, the statute provides that, in the event that OPM determines, on an annual review, that an agency’s employer contributions do not in fact satisfy the statute’s funding goals, OPM must notify the Postmaster General (or the Secretary of the Treasury, as applicable) of any “supplemental liability” and the amount of the required installment payments, amortized over 30 years. 5 U.S.C. § 8423(b); see supra note 8. The Postal Service must then pay the amount specified in the notification to address the funding shortfall. 5 U.S.C. § 8423(b)(4)(B). The existence of this supplemental liability process does not affirmatively authorize the Postal Service to avoid making its employer contributions as they come due in favor of amortizing such payments over 30 years. But the existence of a supplemental liability remedy for at least one type of funding shortfall shows that Congress was aware of the possibility that the employer contributions remitted under section 8423 might in some circumstances fail to result in agency funding of the full costs of employee benefits. Congress chose nonetheless to provide expressly for only one response to such a possibility. In light of that awareness, the omission of any other mechanism for addressing this or other kinds of shortfalls, such as denying service credit to employees when their employer defaults on its contributions, suggests that “the statute fails to mention [other responses] ‘by deliberate choice, not inadvertence.’” Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 1076 (2011) (citation omitted). In sum, none of the most clearly relevant provisions of the statute suggests that either employee eligibility or creditable service under FERS depends upon the extent of the employer’s contributions to the Fund. As OPM insists, and the Postal Service effectively concedes, the plain language of FERS’s key provisions specifies that agency employers must contribute to the Fund the normal cost of their covered employees’ basic pay. At the same time, these provisions fail to link an agency’s failure to comply with this requirement to the affected employees’ eligibility for an annuity or accrual of creditable service. Instead, they appear on their face to provide that an employee is entitled to service credit so long as he or 192 Service Credit for Retirement Annuities of USPS Employees she is employed as an “employee” after December 31, 1986. See 5 U.S.C. § 8411(a) & (b). Given the harsh penalty federal employees would suffer if they were denied FERS coverage or service credit for periods of employment during which their agency employers failed to make the required contributions to the Fund—an action over which the employees have no control—the absence of any reference in FERS’s key provisions to OPM’s authority to impose that particular remedy for an agency’s noncompliance strongly suggests that Congress did not intend such authority to exist. As we discuss next, we do not think any of OPM’s additional arguments in support of this authority are persuasive. B. OPM offers several other arguments that, in its view, show that the FERS statute requires employer contributions as a condition of employees’ coverage and accrual of creditable service under FERS. First, OPM relies heavily on the Postal Service’s concession that, to receive service credit under FERS, an employee must have deductions withheld from his or her wages, even though, in the Postal Service’s view, the employing agency’s contributions are not required for that purpose. OPM Memo at 7; see USPS Memo at 5–10. OPM insists that these two propositions cannot be reconciled because it is illogical to distinguish between the employee’s deduction and the employer’s contribution—both of which are statutorily required and neither of which is expressly linked by the statutory text to accrual of service credit—for purposes of determining whether an employee accrues creditable service for periods when employee deductions or employer contributions have not been made. OPM Memo at 7. We need not resolve this issue. As a practical matter, the Postal Service has continued to withhold from its employees’ basic pay the deductions required under 5 U.S.C. § 8422—including the employee deductions— and to deposit the deductions into the Fund. USPS Memo at 2. If fulfillment of the Postal Service’s obligations under section 8422 is a necessary condition to postal employees receiving credit under FERS, that condition is being met. Furthermore, although OPM and the Postal Service agree that a failure to make these employee deductions would affect employees’ ability to earn creditable service, we are unsure that they are correct. In our view, this issue is difficult, particularly in the context of a scheme in 193 35 Op. O.L.C. 181 (2011) which it is the agency’s legal obligation to effectuate the employee deduction. See 5 U.S.C. § 8422(a). In fact, the answer to the question may well depend on the reason that employee deductions have not been made. 9 In any event, even if employee deductions constitute a prerequisite to the accrual of service credit under FERS—one that does not appear in the FERS eligibility or accrual provisions themselves—that would not necessarily mean that employer contributions likewise would be a prerequisite for the accrual of such credit, because the significance and treatment of employee deductions and employer contributions within the statutory scheme are different. Each argument for linking employee service credit to separate requirements in the statute would have to be considered on its own terms. Both OPM and the Postal Service cite different subsections of section 8411—some requiring employee deductions as a condition of receiving creditable service and a couple requiring employee deductions and em- For example, if the employer failed to make the employee deduction because the affected employee was not subject to deductions under 5 U.S.C. § 8422, the employee’s eligibility for coverage and ability to accrue creditable service under FERS might be implicated. Cf. Tomboc v. OPM, 355 Fed. Appx. 422, 424 (Fed. Cir. 2009) (noting that “[w]hile the absence of deductions” under the CSRA “is an indication” regarding whether a position is covered, “it is not necessarily dispositive”). Alternatively, if the employer failed to make the employee deductions because of an agency error, the error may be corrected, see 5 C.F.R. § 841.505 (2011); and, in any event, an agency error would not necessarily affect the employee’s entitlement to coverage. Cf. Noveloso v. OPM, 45 M.S.P.R. 321, 324 n.2 (M.S.P.B. 1990) (noting, in addressing CSRS coverage, that “[i]f no deductions were withheld because of agency error, or because it was not determined until after the fact that such service should have been covered, the employment will still constitute covered service”); accord Staffney v. OPM, 54 M.S.P.R. 99, 102–03 (M.S.P.B. 1992) (same, under CSRS coverage); In re Kaltakji, 1 M.S.P.R. 63, 64 (M.S.P.B. 1978) (same). But see 5 U.S.C. § 8339(i) (2006) (providing, for purposes of computing a CSRS annuity, that the total service of an employee “shall not include any period of civilian service . . . for which retirement deductions or deposits [under section 8334] have not been made” unless the employee makes a deposit under section 8334(c) or (d)(1) or no deposit is required for such service as specified under section 8334(g) or another statute). And, for the same reasons that an agency error may not affect the employee’s entitlement to coverage, a willful agency refusal to make the required employee deductions likewise may not affect that entitlement. For the reasons stated in the text, however, we need not decide the circumstances, if any, in which an employing agency’s failure to make the employee deductions and deposit them into the Fund would affect an employee’s coverage and accrual of service under FERS. 9 194 Service Credit for Retirement Annuities of USPS Employees ployer contributions—to support their respective positions. On the one hand, OPM contends that, where Congress intended to permit service credit to be afforded even if no contributions were made by the agency, it did so explicitly. It cites as an example section 8411(b)(3), which permits employees to receive service credit for periods of employment during which no employing agency contributions or employee deductions were paid into the Fund for certain service performed prior to January 1, 1989. OPM Memo at 8 n.5. In such instances, the employee must make a deposit into the Fund of 1.3 percent of his or her basic pay, with interest, for that period of service. Id. (citing 5 U.S.C. § 8411(f)(2)). 10 However, no employing agency contribution is required for that period. Id. 11 The Postal 10 Section 8411(b)(3), with the introductory language in section 8411(b), provides: For the purpose of this chapter, creditable service of an employee or Member includes[,] except as provided in subsection (f) or (h), any civilian service (performed before January 1, 1989, other than any service under paragraph (1) or (2)) which, but for the amendments made by subsections (a)(4) and (b) of section 202 of the Federal Employees’ Retirement System Act of 1986, would be creditable under subchapter III of chapter 83 of this title (determined without regard to any deposit or redeposit requirement under such subchapter, any requirement that the individual become subject to such subchapter after performing the service involved, or any requirement that the individual give notice in writing to the official by whom such individual is paid of such individual’s desire to become subject to such subchapter)[.] 5 U.S.C. § 8411(b), (b)(3). Section 8411(f)(2) prohibits an employee from receiving “credit under this chapter for any service described in subsection (b)(3) for which retirement deductions under subchapter III of chapter 83 have not been made, unless such employee or Member deposits an amount equal to 1.3 percent of basic pay for such service, with interest.” Id. § 8411(f)(2). Section 8411(f)(1) requires an employee who has received a refund of CSRS retirement deductions for service described in subsections (b)(2) or (b)(3) to “deposit[] an amount equal to 1.3 percent of basic pay for such service, with interest,” as a condition of receiving credit for such service. Id. § 8411(f)(1). The Senate Committee on Governmental Affairs released a Committee Print in October 1986, four months after the enactment of FERS, that set out a detailed section-bysection analysis of the statute. The committee print explains that section 8411(b)(3) “provides that creditable service includes . . . service before January 1, 1989, which was either non-covered or was not vested under CSRS in which case a contribution must be made under subsection (f).” S. Comm. on Governmental Affairs, 99th Cong., Supplemental Information Regarding the Federal Employees’ Retirement System Act of 1986, at 7 (Comm. Print 1986) (“FERS Comm. Print”). 11 Section 8411(b)(3) is not unique in requiring employees who had not contributed to the Fund (sometimes because they had been covered by other retirement systems) but who 195 35 Op. O.L.C. 181 (2011) Service, on the other hand, cites two instances in which the statute expressly requires the payment of an employer contribution to render certain service creditable, arguing that there would have been no reason for Congress to have explicitly required an employer contribution if accrual of service credit is invariably conditioned on an agency’s having made employer contributions to the Fund. USPS Memo at 8 (citing 5 U.S.C. § 8411(e), (g) (the latter of these added in subsequent amendments to FERS)). 12 seek service credit within the FERS system, to make payments to the Fund equal to the amounts that would have been deducted as FERS employee contributions for that period of service—without any mention of the necessity of an employer contribution. See, e.g., 5 U.S.C. § 8411(b)(4) & (5) (the latter of these added in subsequent amendments to FERS); USPS Paper at 6. In still other instances, Congress treated service for which deductions were not paid to the Fund as creditable with no requirement of any kind of employee or employer deposit. See 5 U.S.C. § 8411(c)(1)(A) (military service performed before January 1, 1957); id. § 8411(d) (certain periods of leave without pay); USPS Paper at 7. 12 Section 8411(e) provides: Credit shall be allowed for periods of approved leave without pay granted an employee to serve as a full-time officer or employee of an organization composed primarily of employees . . . , subject to the employee arranging to pay, through the employee’s employing agency, within 60 days after commencement of such leave without pay, amounts equal to the retirement deductions and agency contributions which would be applicable under sections 8422(a) and 8423(a), respectively, if the employee were in pay status. If the election and all payments provided by this subsection are not made, the employee may not receive credit for the periods of leave without pay, notwithstanding the third sentence of subsection (d). 5 U.S.C. § 8411(e) (emphasis added). Section 8411(g), in turn, provides that “[a]ny employee who— “(1) served in a position in which the employee was excluded from coverage under this subchapter because the employee was covered under a retirement system established under section 10 of the Federal Reserve Act; and “(2) transferred without a break in service to a position to which the employee was appointed by the President, with the advice and consent of the Senate, and in which position the employee is subject to this subchapter, “shall be treated for all purposes of this subchapter as if any service that would have been creditable under the retirement system established under section 10 of the Federal Reserve Act was service performed while subject to this subchapter if any employee and employer deductions, contributions or rights with respect to the employee’s service are transferred from such retirement system to the Fund.” Id. § 8411(g) (emphasis added). 196 Service Credit for Retirement Annuities of USPS Employees None of these examples, in our view, supports either inference. As the Postal Service observes, section 8411 sets forth a variety of rules regarding when certain types of service that fall outside the scope of section 8411(b)(1) (the service at issue here) nonetheless may be credited for FERS purposes. Id. Congress’s varying responses to divergent coverage and employee deduction scenarios do not shed light on what it intended as a general matter for employees otherwise covered by FERS. With respect to section 8411(b)(3), for example, Congress’s decision to allow the accrual of service credit for employees in a transitional period during the early implementation of FERS and to address the absence of retirement deductions by requiring that the employee deposit an amount compensating for those missing employee deductions, 5 U.S.C. § 8411(f)(2), suggests, at most, that Congress viewed employee deductions as more significant to coverage requirements than employer contributions. By the same token, that Congress required employer contributions to be made as a condition of receiving service credit in the examples cited by the Postal Service, id. § 8411(e), (g), shows little more than that Congress chose to impose that additional requirement in those instances and explicitly provided for employer contributions to make the requirement clear. 13 For similar reasons, we do not find Congress’s treatment of reemployed annuitants in 5 U.S.C. § 8468, on which the Postal Service relies, see USPS Memo at 6–7, particularly illuminating. In language added to that section after the enactment of FERS, the statute provides that, with certain exceptions, if the annuitant becomes reemployed, “deductions for the Fund shall be withheld from the annuitant’s pay under section 8422(a) and contributions under section 8423 shall be made.” 5 U.S.C. § 8468(a) (2006). The Postal Service makes much of the fact that a subsequent subsection provides that if an annuitant “subject to deductions under the second sentence of subsection (a)” serves for at least 5 years, the annuitant may elect to have his or her rights redetermined under FERS. Id. § 8468(b)(2)(A) (emphasis added). The Postal Service finds it significant that this subsection mentions “deductions” and not employer “contributions.” But an employee subject to “deductions” under the second sentence of section 8468(a) would also be subject to “contributions,” and so there was no need for Congress to repeat the full phrase in section 8468(b)(2)(A) to indicate the employees to whom it was referring. Moreover, contrary to the Postal Service’s assertion that Congress made clear that reemployed annuitants earn service credit “so long as ‘deductions’ are being made from their basic pay,” USPS Memo at 7, Congress merely referred to reemployed annuitants who were “subject to deductions,” without regard to whether the deductions were actually “being made.” See 5 U.S.C. § 8468(b)(2)(A). More importantly, however, we believe again that Congress’s policy determination about the coverage of reemployed annuitants tells us little about 13 197 35 Op. O.L.C. 181 (2011) What these examples reveal is that, even where there was no other statutory commitment to treat service as creditable under FERS or where employees were covered under other federal retirement systems, Congress sometimes extended FERS service credit in exchange for the payment of specified employee deductions—or the payment of employer contributions, or the relinquishment of service credit under other retirement systems, or without imposing any conditions—to serve some other policy goal, such as increased portability of retirement benefits. See Pub. L. No. 99-335, § 100A(3), 100 Stat. at 516 (codified at 5 U.S.C. § 8401 note) (one purpose of FERS was “to enhance portability of retirement assets earned as an employee of the Federal Government”). In our view, the discrete scenarios addressed in section 8411 provide little assistance, one way or another, in the assessment whether Congress intended to authorize OPM to deny service credit to employees otherwise subject to the FERS retirement plan for periods of employment under that plan if agencies violated the statutory requirement that they make employer contributions to the Fund. Finally, as noted above, OPM argues that, in light of Congress’s creation of FERS as a “fully funded pension system,” OPM Memo at 6, and its purpose to ensure “sound fiscal and accounting management,” id. at 7 (citing S. Rep. No. 99-166, at 29), “it is highly unlikely that Congress would have provided that employees be considered ‘covered’ by FERS and credited for their service if their employing agencies did not make the requisite contribution[s] to the Fund.” Id. But, of course, Congress did require employing agencies to make specified contributions to the Fund, and the Postal Service is legally obligated to do so. See supra pp. 184– 186, 191. The question here is only whether Congress intended that the remedy for the Postal Service’s failure to meet its obligations would be to deny employees the service credit that the statute contemplates they will earn. We agree with OPM that Congress was concerned with the fiscal management of the Fund. But “ensur[ing] a fully funded and financially sound retirement benefits plan for Federal employees,” Pub. L. No. 99-335, § 100A(2), 100 Stat. at 516 (codified at 5 U.S.C. § 8401 note), was only whether Congress intended generally to condition coverage and accrual of service credit for FERS employees on the agency’s deposit of its employer contributions into the Fund. 198 Service Credit for Retirement Annuities of USPS Employees one of several congressional purposes in enacting FERS. Among other things, Congress also enacted FERS to establish a new retirement plan “to assist in building a quality career work force in the Federal Government.” Id. § 100A(5). That goal could well be subverted if Congress were to create a retirement system in which employees’ retirement benefits could be diminished or stripped away by their agencies’ failure to pay the statutorily required contributions into the Fund. Even recognizing that a fully funded pension system was an important congressional objective, “no legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular object is the very essence of legislative choice—and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.” Rodriguez v. United States, 480 U.S. 522, 525–26 (1987). Further, although we do not “resort to legislative history to cloud a statutory text that is clear,” Ratzlaf v. United States, 510 U.S. 135, 147–48 (1994), we believe that, to the extent that the legislative history of FERS is illuminating, it undermines, rather than supports, the view that Congress intended to deny employees eligibility and creditable service under FERS for periods of employment in which their employing agencies fail to make their required employer contributions to the Fund. The legislative history makes clear that Congress intended the basic annuity in FERS to operate as a defined benefit plan. See, e.g., S. Rep. No. 99-166, at 6, 9, 30, 42; FERS Comm. Print at 7. Such a plan consists of “a general pool of assets” out of which an employee, “upon retirement, is entitled to a fixed periodic payment.” Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 439 (1999) (citation omitted). “A defined benefit plan promises a participant a specific amount of pension benefits at retirement determined under a formula based on years of participation in the plan, and in most nonbargained plans, based on an average of compensation.” Stephen R. Bruce, Pension Claims: Rights and Obligations 17–18 (1988) (“Bruce”); see also James E. Burk, Pension Plan Management Manual: Administration and Investment ¶ 1.01[8], at 1-8 (1987) (“Burk”) (benefits in a defined benefits plan determined “by a formula that is generally related to service and compensation”); H.R. Comm. on Post Office and Civil Serv., 98th Cong., Designating a Retirement System for Federal Workers Covered by Social Security 6 (Comm. Print 1984) (prepared by 199 35 Op. O.L.C. 181 (2011) the Congressional Research Service) (“CRS Comm. Print”) (“A defined benefit plan determines benefit amount by a formula. Upon reaching the terms specified in the definition of eligibility (usually a combination of age and years of service), the worker receives the benefit computed from the application of the formula to the employee’s years of service and salary.”). 14 The FERS basic annuity follows this model. FERS promises participants a specific level of benefits by application of a formula that is generally dependent on the employee’s average pay and total service, 5 U.S.C. § 8415(a), and that bases the employing agencies’ contributions on the “normal-cost percentage” of benefits, id. § 8423(a), which is actuarially computed by OPM. Id. § 8401(23); cf. Burk ¶ 2.01, at 2-4 (employer’s contribution in a defined benefit plan is actuarially computed). The benefit formula in a defined benefit plan “is geared to providing a specific retirement benefit rather than based on the rate of contributions made by the employer to the pension fund.” Burk ¶ 2.01, at 2-5. A pension plan covered by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001–1461 (2006 & Supp. III 2009), for example, “is liable for benefits without regard to whether the employer has made required contributions.” ABA Section of Labor and Employment Law, Employment Benefits Law 279 (1991). Thus, it was well established by the time Congress enacted FERS, see USPS Memo at 9, that a multiemployer pension plan covered by ERISA, which is analogous in many respects to the multi-agency approach of FERS, must award credit based on the service performed for a participating employer regardless of whether the employer made the required contributions for such service. As the Supreme Court recognized a year before the enactment of FERS: By contrast, under a “defined contribution plan,” the promise is that “certain contributions will be made and credited to an employee’s individual account. Contribution rates are fixed, usually as a percentage of the employee’s earnings. Such plans do not guarantee an employee any fixed level of benefits at retirement. An employee’s benefit will vary, depending on the amount of the contributions and the interest and capital appreciation accumulated on them.” Burk ¶ 1.02[8], at 1-8 –1-9; see also Hughes, 525 U.S. at 439; Bruce at 18. “Under defined contribution plans, employers know exactly what the pension obligation is and the benefits are fully funded at the time of the contribution. Employees bear the risk of variable market performance[.]” CRS Comm. Print at 6–7. 14 200 Service Credit for Retirement Annuities of USPS Employees The consistent view of the Secretary of Labor is that, under ERISA’s minimum participation, vesting, and benefit accrual standards for pension plans . . . a pension plan covered by ERISA must award credit “solely on the basis of service performed for a participating employer, regardless [of] whether that employer is required to contribute for such service or has made or defaulted on his required contributions.” In the Secretary’s judgment, “[a]ny plan term or Trustees’ resolution to the contrary is . . . unlawful and unenforceable.” Cent. States, Se. & Sw. Areas Pension Fund v. Cent. Transp., Inc., 472 U.S. 559, 567 n.7 (1985) (citations omitted). 15 Given this backdrop, it would be reasonable to expect some indication in the text of FERS, or at least in its legislative history, if Congress had intended to depart from these principles and make accrual of employee 15 Accord Cent. States, Se. & Sw. Areas Pension Fund v. Gerber Truck Serv., Inc., 870 F.2d 1148, 1151 (7th Cir. 1988) (“Multi-employer plans are defined-contribution in, defined-benefits out. Once they promise a level of benefits to employees, they must pay even if the contributions they expected to receive do not materialize[.]”); Bruce at 135– 36 (“[H]ours of service for use in determining [years of work] are determined solely on the basis of hours of work, or hours for which payment is due the employee from the employer, without reference to the delinquency or nondelinquency of the employer’s contributions to the [multiemployer] plan.”). As the Supreme Court noted, the longstanding position of the Secretary of Labor at the time of the enactment of FERS was that ERISA required that credit for hours worked “must be given solely on the basis of service performed for a participating employer, regardless whether that employer is required to contribute for such service or has made or defaulted on his required contributions. Any plan term or Trustees resolution to the contrary is, in our judgment, unlawful and unenforceable.” Dep’t of Labor Advisory Op. No. 76–89 (Aug. 31, 1976); accord Dep’t of Labor Advisory Op. No. 78-28A (Dec. 5, 1978); Dep’t of Labor Advisory Op. 78-21A (Oct. 16, 1978); Dep’t of Labor Advisory Op. No. 78-20A (Oct. 6, 1978); see also Rules and Regulations for Minimum Standards for Employee Pension Benefit Plans, 41 Fed. Reg. 56,462, 56,464 (Dec. 28, 1976) (explaining, with respect to 29 C.F.R. § 2530.200b-2, regarding accrual of hours of service, that employee hours “must be credited to an employee regardless of whether contributions are required to be made to the plan on account of such hours or whether such contributions, even though required, have not in fact been made”). Before the passage of FERS, the IRS had also issued a Revenue Ruling explaining that a multiemployer plan that did not credit all years of service because of an employer’s failure to make the required contributions failed to meet the requirements of “a qualified pension plan” that it provide “definitely determinable benefits” to its employees and violated the minimum participation and vesting standards of the Internal Revenue Code. Rev. Ruling 85-130, 1985-2 C.B. 137. 201 35 Op. O.L.C. 181 (2011) benefits contingent on employer contributions. Instead, the legislative history underlines that Congress intended to establish a new retirement plan for federal employees that would “provid[e] employees with financial security through a retirement program that compares favorably with those found in the private sector.” S. Rep. No. 99-166, at 38. 16 It is unlikely, in light of this goal, that Congress would have incorporated into FERS an arrangement that would have been unlawful in the private sector without saying so. Finally, OPM argues that construing FERS to give employees an entitlement to service credit without the employer’s contribution “would be inconsistent with the Director’s fiduciary responsibilities to the Fund.” OPM Memo at 7. But, as set forth above, OPM is obligated under the statute to award service credit to employees who satisfy the statutory conditions set forth, see supra Part III.A, and to “pay all benefits that are payable under subchapter II, IV, V, or VI of this chapter from the Fund.” 5 U.S.C. § 8461(a). As we read the statute, OPM is required to pay those benefits without regard to whether the employing agency—here, the Postal Service—has made its employer contributions to the Fund. The Director’s fiduciary obligations thus include awarding service credit and paying benefits in accordance with the statute, and he would not violate those obligations by doing so. 16 See also, e.g., 132 Cong. Rec. 11,912 (1986) (statement of Rep. Myers) (conference report includes “many of the concepts that a great many of the better private retirement programs have”); id. at 11,909 (1986) (statement of Rep. Ford) (Congress had an opportunity “to create a new pension system with the best features found in the private sector”); id. at 11,304 (1986) (statement of Sen. Gore) (“The retirement system which we have developed employs a three-tier design that combines Social Security with a defined benefit tier that focuses on providing a reliable base pension benefit[.]”); id. at 11,303 (1986) (statement of Sen. Glenn) (FERS “provides Government employees with a threepart program which is comparable to plans widely used in private industry” and “one that helps to recruit and maintain an excellent and skilled work force”); id. at 11,301 (1986) (statement of Sen. Stevens) (praising the new retirement plan as “a top notch, economical retirement system for the Federal workforce which is on part with the best in the private sector,” providing “solid retirement benefits” and “offering financial security to Federal retirees”); S. Rep. No. 99-166, at 4 (emphasizing that “the Federal Government must have the ability to attract and retain highly qualified individuals in all occupations” and that “[a]n attractive, flexible retirement plan can assist the government in meeting these objectives . . . to build a career workforce” and “to assist in recruiting midcareer employees”). 202 Service Credit for Retirement Annuities of USPS Employees IV. “If, upon examination of ‘the particular statutory language at issue, as well as the language and design of the statute as a whole,’ . . . it is clear that [the agency’s] interpretation is incorrect, then we need look no further[.]” Fort Stewart Sch. v. FLRA, 495 U.S. 641, 645 (1990) (quoting K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)). In our view, FERS has “directly spoken to the precise question at issue,” Chevron, 467 U.S. at 842, and OPM may not address the Postal Service’s failure to make the employer contributions required by FERS by denying postal employees coverage or creditable service under FERS. We do not address the propriety of any other action OPM might take to address the Postal Service’s failure to make the required contributions to the Fund. VIRGINIA A. SEITZ Assistant Attorney General Office of Legal Counsel 203

Write a legal research memo on the following topic.

Service Credit for Retirement Annuities of USPS Employees When USPS Has Not Made Required Contributions The Office of Personnel Management may not address the United States Postal Service’s failure to make statutorily required retirement contributions by denying its employees accrued service credit under the Federal Employees’ Retirement System during their periods of qualifying federal employment. November 1, 2011 MEMORANDUM OPINION FOR THE GENERAL COUNSEL OFFICE OF PERSONNEL MANAGEMENT AND THE GENERAL COUNSEL AND EXECUTIVE VICE PRESIDENT UNITED STATES POSTAL SERVICE On June 22, 2011, the United States Postal Service (“USPS” or “Postal Service”) notified the Office of Personnel Management (“OPM”) that, because of its financial difficulties, the Postal Service, as a cash conservation measure, was suspending its employer contributions to the Civil Service Retirement and Disability Fund (“the Fund”) on behalf of those postal employees covered by the Federal Employees’ Retirement System Act (“FERS”), 5 U.S.C. §§ 8401–8479 (2006 & Supp. IV 2010). In light of that suspension, OPM requested an opinion from our Office regarding (1) whether, and to what extent, OPM has discretion to offset the Postal Service’s obligation to make employer retirement contributions against a “surplus” the Postal Service asserts that it has accumulated in the Fund; and (2) whether postal employees are entitled to receive service credit, for purposes of determining their eligibility for retirement and calculating the amount of their retirement annuity, for periods of employment during which the Postal Service has not made its required employer contributions. 1 The Postal Service, an independent agency, joined OPM in the request for an opinion and agreed to be bound by our decision. 2 See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal Counsel, from Elaine Kaplan, General Counsel, Office of Personnel Management (July 14, 2011) (“OPM Memo”). OPM enclosed with its submission an undated paper it had received from USPS, with the heading “Effect of Suspension of Agency Contribution to 1 181 35 Op. O.L.C. 181 (2011) In its submission to the Office of Legal Counsel (“OLC”), the Postal Service indicated that, despite earlier disagreement, it now “does not contest OPM’s position that the Postal Service is still obligated by the statute to make its employer contribution, despite the existence of the surplus.” USPS Memo at 14; see also id. at 4. The Postal Service, however, also specifically stated that it considers the question “whether the [Postal Service’s] Board [of Governors] was justified in its decision to suspend the employer contribution in order to conserve cash so as to avoid a shutdown in mail service” to be outside “the scope of [OLC’s] review.” Id. at 3 n.2. Thus, we do not address (i) whether OPM could offset the Postal Service’s required contributions against any surplus it may have in the Fund; (ii) whether the Postal Service’s apparent statutory violation may be excused; or (iii) what other avenues of recourse OPM may have against the Postal Service for its failure to make the statutorily required contributions. Instead, this opinion addresses only the question whether, under the relevant provisions of the FERS statute, postal employees are entitled to receive service credit for periods during which the Postal Service has not made the required employer contributions to the Fund. The Postal Service argues that its employees should receive such credit. Id. at 2–14. OPM disagrees, maintaining that employees cannot be credited with service for periods in which no employer contributions have been made into the Fund. OPM Memo at 5–9. For the reasons that follow, we agree with the Postal Service that OPM may not address the Postal Service’s failure to make statutorily required contributions by denying its employees accrued service credit under FERS during their periods of qualifying federal employment. I. In 1986, Congress enacted the Federal Employees’ Retirement System Act of 1986, Pub. L. No. 99-335, 100 Stat. 514 (codified as amended at FERS on Employees” (“USPS Paper”). OPM has agreed provisionally to provide service credit to postal employees who may retire while the issue is pending before our Office. OPM Memo at 2. 2 See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal Counsel, from Mary Anne Gibbons, General Counsel and Executive Vice President, United States Postal Service (Aug. 12, 2011) (“USPS Memo”). 182 Service Credit for Retirement Annuities of USPS Employees 5 U.S.C. §§ 8401–8479 and scattered U.S.C. sections), a system of retirement and other benefits for federal employees that will gradually supersede the Civil Service Retirement System (“CSRS”), which has been in effect since 1920. See Pub. L. No. 66-215, 41 Stat. 614 (1920) (codified as amended at 5 U.S.C. §§ 8331–8351 (2006 & Supp. 2010)). In enacting FERS, Congress set out, among other things, “to establish a Federal employees’ retirement plan which is coordinated with title II of the Social Security Act”; “to ensure a fully funded and financially sound retirement benefits plan for Federal employees”; and “to assist in building a quality career work force in the Federal Government.” Pub. L. No. 99-335, § 100A(1), (2), & (5), 100 Stat. at 516 (codified at 5 U.S.C. § 8401 note (2006)). 3 With certain exceptions, the Act became effective on January 1, 1987. Id. § 702, 100 Stat. at 631 (codified at 5 U.S.C. § 8401 note). Since then, most newly hired federal employees who are covered by Social Security have also been covered by FERS. FERS is a three-tiered retirement system that consists of Social Security, a basic annuity, and a Thrift Savings Plan (“TSP”). See 5 U.S.C. § 8403 (2006) (except as otherwise provided, benefits payable under FERS are in addition to benefits payable under the Social Security Act); id. §§ 8410–8425 (2006 & Supp. IV 2010) (basic annuity); id. §§ 8431– 8440f (2006 & Supp. IV 2010) (TSP). 4 The Postal Service and its employees fall within FERS coverage. 39 U.S.C. § 1005(d) (2006 & Supp. III 2009). The dispute between OPM and the Postal Service concerns the basic annuity. Under FERS, an “employee,” as defined in 5 U.S.C. § 8401(11) (2006), must complete at least five years of creditable civilian service under 5 U.S.C. § 8411 to be eligible for the annuity. 5 U.S.C. § 8410 From Congress’s enactment of the Social Security Act in 1935, Pub. L. No. 74-271, 49 Stat. 620 (1935), until 1983, federal employees were excluded from Social Security coverage. In 1983, the Social Security Act was amended to cover newly hired federal employees. Pub. L. No. 98-21, § 101, 97 Stat. 65, 67–70 (1983) (codified at 42 U.S.C. § 410). That expansion of Social Security was a major impetus behind the adoption of FERS, the new retirement system for federal employees, in 1986. See generally S. Rep. No. 99-166, at 1–2 (1985) (providing background on the CSRS and amendment of the Social Security Act to cover federal employees). 4 The TSP is a tax-deferred savings plan for federal employees in which employee contributions are matched in part by employer agency contributions. 3 183 35 Op. O.L.C. 181 (2011) (2006). As a general matter, creditable service includes “employment as an employee . . . after December 31, 1986.” Id. § 8411(b)(1). With certain exceptions, the annuity of a retiring employee is 1 percent of that individual’s average pay (the highest average pay in effect over any three consecutive years of service) multiplied by that individual’s “total [years of] service.” Id. §§ 8415(a), 8401(3) (defining “average pay”). The statute establishes different potential retirement ages for employees depending on the number of years of service completed. Id. § 8412 (2006 & Supp. IV 2010). For example, an employee who is separated from service after becoming 62 years old and completing five years of service is entitled to an annuity. Id. § 8412(c). “[S]ervice,” in turn, “means service which is creditable under section 8411.” Id. § 8401(26). As these provisions make clear, the determination whether service is creditable under the statute has important ramifications for an employee’s eligibility to receive a basic annuity, the applicable retirement age, and the calculation of the amount of the annuity. 5 The FERS basic annuity is funded through a combination of employee deductions and employer agency contributions to the Civil Service Retirement and Disability Fund. Id. §§ 8422, 8423, 8401(6) (2006 & Supp. IV 2010). Under FERS, the employing agency is required to deduct and withhold from each employee’s basic pay a percentage that is equal to 7 percent of basic pay (with a different percentage applicable to Members of Congress and certain categories of employees) less the Old Age, Survivors, and Disability Insurance (“OASDI”) tax rate in effect, which is now 6.2 percent. Id. § 8422(a), (c) (2006 & Supp. IV 2010); 26 U.S.C. § 3101(a) (2006). Accordingly, the employer is required by the statute to deduct 0.8 percent of most employees’ basic pay for contribution to the Fund. The employing agency’s own contribution to the Fund is much larger and is based on the “normal-cost percentage,” which is “the entry-age normal cost of the provisions of [FERS] which relate to the Fund,” as computed by OPM “in accordance with generally accepted actuarial Creditable service is also important to other facets of the retirement system. For example, an employee is not entitled to retain the employer’s contributions to the TSP and earnings attributable to such contributions before completing specific periods of service. See 5 U.S.C. § 8432(g)(2) (2006). 5 184 Service Credit for Retirement Annuities of USPS Employees practice and standards” and “expressed as a level percentage of aggregate basic pay.” 5 U.S.C. § 8401(23) (defining “normal-cost percentage”); see id. § 8423(a) (2006 & Supp. IV 2010). 6 Under the statute, “each employing agency having any employees or Members subject to section 8422(a) shall contribute to the Fund an amount” that is the product of the applicable normal-cost percentage and the aggregate amount of basic pay payable by the agency for the period involved. Id. § 8423(a)(1). In determining the normal-cost percentage to be applied, the employee deductions required by section 8422 must be taken into account. Id. § 8423(a)(2). 7 Thus, for 6 “Entry age normal cost” is generally understood as the percentage of every paycheck that should be invested, over the total career of each employee in a group of new entrants, to pay fully for all benefits received by that group, including all eligible survivors. Normal cost is formally defined as the present value of future benefits divided by the present value of future compensation. These values are expressed as a percentage of payroll, and provide a consistent measure of relative pension costs over time. S. Rep. No. 99-166, at 35 (1985). OPM publishes the “normal cost percentages” for particular categories of employees in the Federal Register. At the time the Postal Service suspended its employer contributions to the Fund, the government-wide normal cost percentage for most employees was 12.5 percent. Federal Employees’ Retirement System; Normal Cost Percentages, 75 Fed. Reg. 35,098 (June 21, 2010). For the first pay period commencing on or after October 1, 2011, the normal cost percentage for most employees rose to 12.7 percent. Federal Employees’ Retirement System; Normal Cost Percentages, 76 Fed. Reg. 32,242, 32,243 (June 3, 2011). 7 Section 8422(a) requires that “[t]he employing agency shall deduct and withhold from basic pay of each employee . . . a percentage of basic pay.” 5 U.S.C. § 8422(a)(1). Thus, so long as the individual is an “employee,” see id. § 8401(11), and is not otherwise excluded from coverage under the statute, see id. § 8402 (2006), the individual is “subject to section 8422(a),” and the employing agency is required to make contributions to the Fund under section 8423. There is no dispute here that the Postal Service’s employees for whom the employer contributions have been withheld are “employees” for purposes of FERS. As a general matter, the FERS definition of “employee” refers to the definition of “employee” for CSRS benefits under chapter 83, in 5 U.S.C. § 8331(1) (2006). Section 8331(1), in turn, defines the term by reference to 5 U.S.C. § 2105. Under section 2105(a), an “employee” is an individual who is “appointed in the civil service” by a federal official; “engaged in the performance of a Federal function”; and “subject to the supervision” of a federal official. 5 U.S.C. § 2105(a) (2006); see Taylor v. OPM, 82 M.S.P.R. 237, 241 (M.S.P.B. 1999). Employees of the Postal Service, who are generally covered by the retirement statutes by virtue of 39 U.S.C. § 1005(d), must still meet the definition of “employee” to be covered by FERS. See Taylor, 82 M.S.P.R. at 241. An “employee” for purposes of FERS must also be covered by title II of the Social Security Act. 5 U.S.C. § 8401(11). 185 35 Op. O.L.C. 181 (2011) most employees, employing agencies contribute to the Fund an amount equal to 11.9 percent of basic pay—the aggregate normal cost of 12.7 percent minus the 0.8 percent employee deduction—which is more than 93 percent of the normal cost. OPM, which has authority to prescribe regulations under the statute, id. § 8461(g) (2006), has construed FERS to require the employing agency to “remit in full the total amount of normal cost (which includes both employee deductions and Government contributions), so that payment is received by the Fund on the day of payment to the employee of the basic pay from which the employee deductions were made.” 5 C.F.R. § 841.504(h) (2011); see also id. § 841.413 (2011). 8 II. The dispute between OPM and the Postal Service was precipitated by the Postal Service’s decision, in light of its current financial crisis, to conserve cash by suspending its employer contributions for the basic annuity, effective June 24, 2011, for those postal employees covered by FERS. OPM Memo at 1; USPS Memo at 2. The Postal Service is continuing to withhold employee deductions from basic pay; it also continues to make its automatic and matching contributions to the TSP accounts of FERS employees and to remit those contributions, along with employee TSP contributions. USPS Memo at 2. OPM does not dispute that the Postal Service and its employees continue to satisfy all the requirements of the statute except the agency’s obligation to make employer contributions to the Fund for the basic annuity. The question we must address is 8 FERS further requires OPM to compute the amount of the “supplemental liability” of the Fund as of the close of each fiscal year, both with respect to current or former employees of the Postal Service and other individuals. 5 U.S.C. § 8423(b)(1). The “supplemental liability” is the estimated excess of the actuarial present value of all future benefits payable from the Fund based on the service of current or former employees or Members of Congress over the sum of the actuarial present value of employee deductions, employer contributions, and the Fund balance. Id. § 8401(27). The amount of any supplemental liability must be amortized in 30 equal annual installments, with interest. Id. § 8423(b)(2). At the end of each fiscal year, OPM must notify the Postmaster General of the amount of the required installment computed with respect to current or former postal employees and the Secretary of the Treasury of the amount computed with respect to other individuals. Id. § 8423(b)(3). Upon receiving such notifications, the Postal Service is required to pay, and the Secretary of the Treasury is required to credit, to the Fund the amounts specified. Id. § 8423(b)(4). 186 Service Credit for Retirement Annuities of USPS Employees thus narrow: whether postal employees are entitled to service credit for retirement purposes for the periods in which the Postal Service has suspended its employer contributions under 5 U.S.C. § 8423, but in all other respects has complied with the FERS statute. OPM states that its “longstanding interpretation of the statute,” as codified in its regulations, provides that “in order for an employee to be covered under FERS, an agency must make the periodic contributions to the Retirement Fund that are required by law.” OPM Memo at 2. OPM does not claim that FERS expressly provides that employer contributions are a necessary precondition for employee coverage or that employees shall not receive service credit for periods in which their employing agencies fail to make employer contributions. Instead, OPM points out that section 8423 of FERS mandates that USPS must make contributions to the Fund on behalf of employees covered by FERS. See 5 U.S.C. § 8423(a)(1) (“[e]ach employing agency having any employees . . . subject to section 8422(a) shall contribute to the Fund” an amount that is based on the normal-cost percentage set by OPM) (emphasis added)). And while section 8423 does not expressly make the mandatory employer contributions a precondition to employee eligibility, in OPM’s view, the relevant OPM regulation does: To be covered under FERS, an individual must: (a) Be an employee, Member, or specifically covered by another provision of law; (b) Be covered by social security; (c) Have retirement deductions withheld from pay and have agency contributions made; and (d) Be paid based on units of time. Except as provided in § 842.104 and as excluded by § 842.105, an employee or Member is covered by FERS. 5 C.F.R. § 842.103 (2011) (emphasis added); see also id. § 842.304(a) (2011) (providing, with exceptions not relevant here, that “an employee . . . is entitled to credit for all purposes under FERS for a period of civilian service with the Government or the U.S. Postal Service—[p]erformed after December 31, 1986, which is covered service under subpart A of this part,” a reference back to section 842.103) (emphasis added). 187 35 Op. O.L.C. 181 (2011) As OPM explains, section 842.103 “merges the various statutory requirements applicable to FERS into one regulatory provision that determines whether an individual is covered by FERS.” OPM Memo at 5. OPM’s basic claim is thus that, “while there is no single provision in the statute which states that each of these requirements is essential to ‘coverage,’ when read as a whole, it was clearly reasonable for OPM to make coverage dependent upon compliance with all of the statutory requirements.” Id. at 6. In OPM’s view, section 842.103 makes “clear” that “to be ‘covered by FERS’ an individual must not only have deductions withheld from their pay—their employing agency must make the necessary contributions” as well. Id. at 5–6. On its face, section 842.103 is not as free from ambiguity as OPM suggests. In particular, the last sentence in the provision states that “[e]xcept as provided in § 842.104 and as excluded by § 842.105, an employee or Member is covered by FERS,” 5 C.F.R. § 842.103, language that appears to define coverage under FERS without making employer contributions a prerequisite. We do not think that the ambiguity in this language can be resolved by examining OPM’s practice because there does not appear to be any relevant practice: OPM has pointed us to no instance of an agency refusing to remit the contributions it is statutorily required to pay under CSRS or FERS. Cf. OPM Memo at 9 (stating that no agency has failed to make employer contributions under CSRS). Nonetheless, we assume that OPM’s interpretation of its own regulation is entitled to deference, and thus that section 842.103 has the meaning OPM suggests. See Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2261 (2011). In addition to relying on the statutory text and its regulation, OPM also finds support for its view in Congress’s purpose. OPM notes that “Congress created FERS as a fully funded pension system,” intending that “the Fund would be placed on a firm financial footing by requiring agencies to pay the full ‘normal costs’ for FERS employees.” OPM Memo at 6. In light of Congress’s “‘interest in sound fiscal and accounting management,’” id. at 7 (quoting S. Rep. No. 99-166, at 29 (1985)), OPM contends that it is “highly unlikely that Congress would have provided that employees would be considered ‘covered’ by FERS and credited for their service if their employing agencies did not make the requisite contribution to the Fund.” Id. 188 Service Credit for Retirement Annuities of USPS Employees The Postal Service, for its part, does not deny that FERS requires it to make its employer contributions, USPS Memo at 4, 14, or that Congress intended that FERS be placed on a sound financial footing, id. But it points out that Congress chose to further this goal by requiring all employers to contribute to the Fund, not by depriving employees of service credit in the highly unusual situation in which an agency fails to make its required payments. Id. at 2–3. The Postal Service contends that under the statute, “creditable service is generated so long as employees are performing the required service for the Federal government and are contributing the required amounts to their pension, without regard to whether the employing agency cannot or does not make its employer contribution.” Id. at 2. None of the key statutory provisions, in the Postal Service’s view, “indicate[s] that creditable service under FERS is dependent on the employer contribution.” Id. at 6. The Postal Service emphasizes that in enacting the basic annuity, Congress “intended to provide clearly defined and reliable benefits to employees”—a purpose that would be “vitiated by OPM’s interpretation, which would predicate the level of employee benefits on the funding decisions of agency officials.” Id. at 3; see also id. at 12. Accordingly, the Postal Service argues that OPM’s interpretation of FERS, as embodied in its regulations, is at odds with the statute or, at least, unreasonable, id. at 5, and that OPM cannot enforce the Postal Service’s statutory obligation to contribute by denying service credit to its employees. We assume that OPM’s authority to implement FERS by regulation, 5 U.S.C. § 8461(g), would entitle it, in appropriate circumstances, to deference in its construction of FERS pursuant to Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984). However, OPM’s construction of the statute is entitled to deference only “if the statute is silent or ambiguous with respect to the specific issue” at hand. Id. at 843. If, on the other hand, “Congress has directly spoken to the precise question at issue,” and in so doing made its intent clear, “that is the end of the matter.” Id. at 842. And here, for the reasons set forth below, we conclude that FERS makes clear that postal employees who otherwise qualify for retirement benefits under FERS are both covered by and accrue service credit under the statute notwithstanding the Postal Service’s failure to make its employer contributions pursuant to 5 U.S.C. § 8423. Thus, OPM’s interpretation of FERS—that OPM can address the 189 35 Op. O.L.C. 181 (2011) Postal Service’s failure to remit the required contributions by depriving employees of accrued service credit—is foreclosed by the statute. III. A. “We begin with the text of the statute.” Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1331 (2011). Section 8410 of FERS, which governs eligibility, provides: “Notwithstanding any other provision of this chapter, an employee or Member must complete at least 5 years of civilian service creditable under section 8411 in order to be eligible for an annuity under this subchapter.” 5 U.S.C. § 8410. Central to resolving this controversy is section 8411, which governs creditable service. It provides that “[t]he total service of an employee . . . is the full years and twelfth parts thereof, excluding from the aggregate the fractional part of a month, if any.” Id. § 8411(a)(1). Section 8411 further specifies, in relevant part, that for purposes of FERS, “creditable service of an employee . . . includes . . . employment as an employee . . . after December 31, 1986.” Id. § 8411(b), (b)(1). These provisions are not vague or unclear. They indicate plainly the category of employees who are eligible for FERS benefits, and Congress’s broad, but not unbounded, definition of “creditable service” for FERS purposes. Section 8401(11) excludes certain categories of individuals from the definition of “employee,” and section 8402 excludes certain categories of individuals from coverage under FERS. Id. §§ 8401(11), 8402. But these exclusions are irrelevant to the present dispute. As USPS points out, OPM does not argue that “the non-payment of the employer contribution means that Postal Service employees are no longer ‘employees’ under the FERS statute or that they now fall within one of the exceptions in 5 U.S.C. § 8402 by virtue of such non-payment.” USPS Memo at 6. And the postal employees potentially affected by their employer’s non-payment of its contributions are still engaged in “employment.” The plain language of FERS, then, supports the view that employees earn creditable service so long as they are employed as “employee[s]” after December 31, 1986, 5 U.S.C. § 8411(b)(1), regardless of whether their employer has suspended its contributions to the Fund. 190 Service Credit for Retirement Annuities of USPS Employees To be sure, as noted earlier, OPM acknowledges that FERS’s definition of “creditable service” does not mention employer contributions. Its argument is that a correct determination of what counts as “creditable service” under FERS does not depend on the wording of section 8411(b)(1) alone, but also on the overall statutory plan—in particular, on the fact that another provision of FERS clearly requires employer contributions as part of the overall FERS scheme. We agree that section 8423 of FERS requires employers to make contributions to the Fund. We further agree that “[i]nterpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006). However, the mere fact that employer contributions are a mandatory part of the overall FERS scheme does not indicate that OPM is authorized to suspend or eliminate the accrual of employees’ service credit as a remedy for an employer’s failure to make such contributions. Cf. Harris Trust & Sav. Bank v. Salomon Smith Barney Inc., 530 U.S. 238, 247 (2000) (ERISA’s “‘comprehensive and reticulated’ scheme warrants a cautious approach to inferring remedies not expressly authorized by the text” (citations and internal quotation marks omitted)). As noted above, the specific statutory provision that addresses creditable service says nothing that suggests that an employee’s accrual of credit depends on the fact or extent of employer contributions. Section 8423 of FERS likewise fails to mandate, or even suggest, that a lapse in an employing agency’s contributions should result in a denial of service credit to that agency’s employees. Certainly, as OPM states, section 8423 reflects Congress’s goal that “the Fund . . . be placed on a firm financial footing by requiring agencies to pay the full ‘normal costs’ for FERS employees.” OPM Memo at 6. But it does so not by stipulating that employees will earn service credit (and therefore future benefits) only if their employers make all required contributions, but rather by imposing on agency employers a legal obligation to make the required contributions. OPM itself has suggested no reason to think that in practice this statutory mechanism has proven ineffective in serving Congress’s goal. Cf. OPM Memo at 9 (“no agency has ever defaulted on its obligation to make the required contributions” under CSRS). 191 35 Op. O.L.C. 181 (2011) Moreover, the text of the FERS statute suggests that Congress considered the question of statutory mechanisms to address funding shortfalls and enacted a mechanism to deal with one kind of shortfall, without indicating that the suspension of employee service credit might be used as a solution to that or any other funding deficiency. Specifically, the statute provides that, in the event that OPM determines, on an annual review, that an agency’s employer contributions do not in fact satisfy the statute’s funding goals, OPM must notify the Postmaster General (or the Secretary of the Treasury, as applicable) of any “supplemental liability” and the amount of the required installment payments, amortized over 30 years. 5 U.S.C. § 8423(b); see supra note 8. The Postal Service must then pay the amount specified in the notification to address the funding shortfall. 5 U.S.C. § 8423(b)(4)(B). The existence of this supplemental liability process does not affirmatively authorize the Postal Service to avoid making its employer contributions as they come due in favor of amortizing such payments over 30 years. But the existence of a supplemental liability remedy for at least one type of funding shortfall shows that Congress was aware of the possibility that the employer contributions remitted under section 8423 might in some circumstances fail to result in agency funding of the full costs of employee benefits. Congress chose nonetheless to provide expressly for only one response to such a possibility. In light of that awareness, the omission of any other mechanism for addressing this or other kinds of shortfalls, such as denying service credit to employees when their employer defaults on its contributions, suggests that “the statute fails to mention [other responses] ‘by deliberate choice, not inadvertence.’” Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 1076 (2011) (citation omitted). In sum, none of the most clearly relevant provisions of the statute suggests that either employee eligibility or creditable service under FERS depends upon the extent of the employer’s contributions to the Fund. As OPM insists, and the Postal Service effectively concedes, the plain language of FERS’s key provisions specifies that agency employers must contribute to the Fund the normal cost of their covered employees’ basic pay. At the same time, these provisions fail to link an agency’s failure to comply with this requirement to the affected employees’ eligibility for an annuity or accrual of creditable service. Instead, they appear on their face to provide that an employee is entitled to service credit so long as he or 192 Service Credit for Retirement Annuities of USPS Employees she is employed as an “employee” after December 31, 1986. See 5 U.S.C. § 8411(a) & (b). Given the harsh penalty federal employees would suffer if they were denied FERS coverage or service credit for periods of employment during which their agency employers failed to make the required contributions to the Fund—an action over which the employees have no control—the absence of any reference in FERS’s key provisions to OPM’s authority to impose that particular remedy for an agency’s noncompliance strongly suggests that Congress did not intend such authority to exist. As we discuss next, we do not think any of OPM’s additional arguments in support of this authority are persuasive. B. OPM offers several other arguments that, in its view, show that the FERS statute requires employer contributions as a condition of employees’ coverage and accrual of creditable service under FERS. First, OPM relies heavily on the Postal Service’s concession that, to receive service credit under FERS, an employee must have deductions withheld from his or her wages, even though, in the Postal Service’s view, the employing agency’s contributions are not required for that purpose. OPM Memo at 7; see USPS Memo at 5–10. OPM insists that these two propositions cannot be reconciled because it is illogical to distinguish between the employee’s deduction and the employer’s contribution—both of which are statutorily required and neither of which is expressly linked by the statutory text to accrual of service credit—for purposes of determining whether an employee accrues creditable service for periods when employee deductions or employer contributions have not been made. OPM Memo at 7. We need not resolve this issue. As a practical matter, the Postal Service has continued to withhold from its employees’ basic pay the deductions required under 5 U.S.C. § 8422—including the employee deductions— and to deposit the deductions into the Fund. USPS Memo at 2. If fulfillment of the Postal Service’s obligations under section 8422 is a necessary condition to postal employees receiving credit under FERS, that condition is being met. Furthermore, although OPM and the Postal Service agree that a failure to make these employee deductions would affect employees’ ability to earn creditable service, we are unsure that they are correct. In our view, this issue is difficult, particularly in the context of a scheme in 193 35 Op. O.L.C. 181 (2011) which it is the agency’s legal obligation to effectuate the employee deduction. See 5 U.S.C. § 8422(a). In fact, the answer to the question may well depend on the reason that employee deductions have not been made. 9 In any event, even if employee deductions constitute a prerequisite to the accrual of service credit under FERS—one that does not appear in the FERS eligibility or accrual provisions themselves—that would not necessarily mean that employer contributions likewise would be a prerequisite for the accrual of such credit, because the significance and treatment of employee deductions and employer contributions within the statutory scheme are different. Each argument for linking employee service credit to separate requirements in the statute would have to be considered on its own terms. Both OPM and the Postal Service cite different subsections of section 8411—some requiring employee deductions as a condition of receiving creditable service and a couple requiring employee deductions and em- For example, if the employer failed to make the employee deduction because the affected employee was not subject to deductions under 5 U.S.C. § 8422, the employee’s eligibility for coverage and ability to accrue creditable service under FERS might be implicated. Cf. Tomboc v. OPM, 355 Fed. Appx. 422, 424 (Fed. Cir. 2009) (noting that “[w]hile the absence of deductions” under the CSRA “is an indication” regarding whether a position is covered, “it is not necessarily dispositive”). Alternatively, if the employer failed to make the employee deductions because of an agency error, the error may be corrected, see 5 C.F.R. § 841.505 (2011); and, in any event, an agency error would not necessarily affect the employee’s entitlement to coverage. Cf. Noveloso v. OPM, 45 M.S.P.R. 321, 324 n.2 (M.S.P.B. 1990) (noting, in addressing CSRS coverage, that “[i]f no deductions were withheld because of agency error, or because it was not determined until after the fact that such service should have been covered, the employment will still constitute covered service”); accord Staffney v. OPM, 54 M.S.P.R. 99, 102–03 (M.S.P.B. 1992) (same, under CSRS coverage); In re Kaltakji, 1 M.S.P.R. 63, 64 (M.S.P.B. 1978) (same). But see 5 U.S.C. § 8339(i) (2006) (providing, for purposes of computing a CSRS annuity, that the total service of an employee “shall not include any period of civilian service . . . for which retirement deductions or deposits [under section 8334] have not been made” unless the employee makes a deposit under section 8334(c) or (d)(1) or no deposit is required for such service as specified under section 8334(g) or another statute). And, for the same reasons that an agency error may not affect the employee’s entitlement to coverage, a willful agency refusal to make the required employee deductions likewise may not affect that entitlement. For the reasons stated in the text, however, we need not decide the circumstances, if any, in which an employing agency’s failure to make the employee deductions and deposit them into the Fund would affect an employee’s coverage and accrual of service under FERS. 9 194 Service Credit for Retirement Annuities of USPS Employees ployer contributions—to support their respective positions. On the one hand, OPM contends that, where Congress intended to permit service credit to be afforded even if no contributions were made by the agency, it did so explicitly. It cites as an example section 8411(b)(3), which permits employees to receive service credit for periods of employment during which no employing agency contributions or employee deductions were paid into the Fund for certain service performed prior to January 1, 1989. OPM Memo at 8 n.5. In such instances, the employee must make a deposit into the Fund of 1.3 percent of his or her basic pay, with interest, for that period of service. Id. (citing 5 U.S.C. § 8411(f)(2)). 10 However, no employing agency contribution is required for that period. Id. 11 The Postal 10 Section 8411(b)(3), with the introductory language in section 8411(b), provides: For the purpose of this chapter, creditable service of an employee or Member includes[,] except as provided in subsection (f) or (h), any civilian service (performed before January 1, 1989, other than any service under paragraph (1) or (2)) which, but for the amendments made by subsections (a)(4) and (b) of section 202 of the Federal Employees’ Retirement System Act of 1986, would be creditable under subchapter III of chapter 83 of this title (determined without regard to any deposit or redeposit requirement under such subchapter, any requirement that the individual become subject to such subchapter after performing the service involved, or any requirement that the individual give notice in writing to the official by whom such individual is paid of such individual’s desire to become subject to such subchapter)[.] 5 U.S.C. § 8411(b), (b)(3). Section 8411(f)(2) prohibits an employee from receiving “credit under this chapter for any service described in subsection (b)(3) for which retirement deductions under subchapter III of chapter 83 have not been made, unless such employee or Member deposits an amount equal to 1.3 percent of basic pay for such service, with interest.” Id. § 8411(f)(2). Section 8411(f)(1) requires an employee who has received a refund of CSRS retirement deductions for service described in subsections (b)(2) or (b)(3) to “deposit[] an amount equal to 1.3 percent of basic pay for such service, with interest,” as a condition of receiving credit for such service. Id. § 8411(f)(1). The Senate Committee on Governmental Affairs released a Committee Print in October 1986, four months after the enactment of FERS, that set out a detailed section-bysection analysis of the statute. The committee print explains that section 8411(b)(3) “provides that creditable service includes . . . service before January 1, 1989, which was either non-covered or was not vested under CSRS in which case a contribution must be made under subsection (f).” S. Comm. on Governmental Affairs, 99th Cong., Supplemental Information Regarding the Federal Employees’ Retirement System Act of 1986, at 7 (Comm. Print 1986) (“FERS Comm. Print”). 11 Section 8411(b)(3) is not unique in requiring employees who had not contributed to the Fund (sometimes because they had been covered by other retirement systems) but who 195 35 Op. O.L.C. 181 (2011) Service, on the other hand, cites two instances in which the statute expressly requires the payment of an employer contribution to render certain service creditable, arguing that there would have been no reason for Congress to have explicitly required an employer contribution if accrual of service credit is invariably conditioned on an agency’s having made employer contributions to the Fund. USPS Memo at 8 (citing 5 U.S.C. § 8411(e), (g) (the latter of these added in subsequent amendments to FERS)). 12 seek service credit within the FERS system, to make payments to the Fund equal to the amounts that would have been deducted as FERS employee contributions for that period of service—without any mention of the necessity of an employer contribution. See, e.g., 5 U.S.C. § 8411(b)(4) & (5) (the latter of these added in subsequent amendments to FERS); USPS Paper at 6. In still other instances, Congress treated service for which deductions were not paid to the Fund as creditable with no requirement of any kind of employee or employer deposit. See 5 U.S.C. § 8411(c)(1)(A) (military service performed before January 1, 1957); id. § 8411(d) (certain periods of leave without pay); USPS Paper at 7. 12 Section 8411(e) provides: Credit shall be allowed for periods of approved leave without pay granted an employee to serve as a full-time officer or employee of an organization composed primarily of employees . . . , subject to the employee arranging to pay, through the employee’s employing agency, within 60 days after commencement of such leave without pay, amounts equal to the retirement deductions and agency contributions which would be applicable under sections 8422(a) and 8423(a), respectively, if the employee were in pay status. If the election and all payments provided by this subsection are not made, the employee may not receive credit for the periods of leave without pay, notwithstanding the third sentence of subsection (d). 5 U.S.C. § 8411(e) (emphasis added). Section 8411(g), in turn, provides that “[a]ny employee who— “(1) served in a position in which the employee was excluded from coverage under this subchapter because the employee was covered under a retirement system established under section 10 of the Federal Reserve Act; and “(2) transferred without a break in service to a position to which the employee was appointed by the President, with the advice and consent of the Senate, and in which position the employee is subject to this subchapter, “shall be treated for all purposes of this subchapter as if any service that would have been creditable under the retirement system established under section 10 of the Federal Reserve Act was service performed while subject to this subchapter if any employee and employer deductions, contributions or rights with respect to the employee’s service are transferred from such retirement system to the Fund.” Id. § 8411(g) (emphasis added). 196 Service Credit for Retirement Annuities of USPS Employees None of these examples, in our view, supports either inference. As the Postal Service observes, section 8411 sets forth a variety of rules regarding when certain types of service that fall outside the scope of section 8411(b)(1) (the service at issue here) nonetheless may be credited for FERS purposes. Id. Congress’s varying responses to divergent coverage and employee deduction scenarios do not shed light on what it intended as a general matter for employees otherwise covered by FERS. With respect to section 8411(b)(3), for example, Congress’s decision to allow the accrual of service credit for employees in a transitional period during the early implementation of FERS and to address the absence of retirement deductions by requiring that the employee deposit an amount compensating for those missing employee deductions, 5 U.S.C. § 8411(f)(2), suggests, at most, that Congress viewed employee deductions as more significant to coverage requirements than employer contributions. By the same token, that Congress required employer contributions to be made as a condition of receiving service credit in the examples cited by the Postal Service, id. § 8411(e), (g), shows little more than that Congress chose to impose that additional requirement in those instances and explicitly provided for employer contributions to make the requirement clear. 13 For similar reasons, we do not find Congress’s treatment of reemployed annuitants in 5 U.S.C. § 8468, on which the Postal Service relies, see USPS Memo at 6–7, particularly illuminating. In language added to that section after the enactment of FERS, the statute provides that, with certain exceptions, if the annuitant becomes reemployed, “deductions for the Fund shall be withheld from the annuitant’s pay under section 8422(a) and contributions under section 8423 shall be made.” 5 U.S.C. § 8468(a) (2006). The Postal Service makes much of the fact that a subsequent subsection provides that if an annuitant “subject to deductions under the second sentence of subsection (a)” serves for at least 5 years, the annuitant may elect to have his or her rights redetermined under FERS. Id. § 8468(b)(2)(A) (emphasis added). The Postal Service finds it significant that this subsection mentions “deductions” and not employer “contributions.” But an employee subject to “deductions” under the second sentence of section 8468(a) would also be subject to “contributions,” and so there was no need for Congress to repeat the full phrase in section 8468(b)(2)(A) to indicate the employees to whom it was referring. Moreover, contrary to the Postal Service’s assertion that Congress made clear that reemployed annuitants earn service credit “so long as ‘deductions’ are being made from their basic pay,” USPS Memo at 7, Congress merely referred to reemployed annuitants who were “subject to deductions,” without regard to whether the deductions were actually “being made.” See 5 U.S.C. § 8468(b)(2)(A). More importantly, however, we believe again that Congress’s policy determination about the coverage of reemployed annuitants tells us little about 13 197 35 Op. O.L.C. 181 (2011) What these examples reveal is that, even where there was no other statutory commitment to treat service as creditable under FERS or where employees were covered under other federal retirement systems, Congress sometimes extended FERS service credit in exchange for the payment of specified employee deductions—or the payment of employer contributions, or the relinquishment of service credit under other retirement systems, or without imposing any conditions—to serve some other policy goal, such as increased portability of retirement benefits. See Pub. L. No. 99-335, § 100A(3), 100 Stat. at 516 (codified at 5 U.S.C. § 8401 note) (one purpose of FERS was “to enhance portability of retirement assets earned as an employee of the Federal Government”). In our view, the discrete scenarios addressed in section 8411 provide little assistance, one way or another, in the assessment whether Congress intended to authorize OPM to deny service credit to employees otherwise subject to the FERS retirement plan for periods of employment under that plan if agencies violated the statutory requirement that they make employer contributions to the Fund. Finally, as noted above, OPM argues that, in light of Congress’s creation of FERS as a “fully funded pension system,” OPM Memo at 6, and its purpose to ensure “sound fiscal and accounting management,” id. at 7 (citing S. Rep. No. 99-166, at 29), “it is highly unlikely that Congress would have provided that employees be considered ‘covered’ by FERS and credited for their service if their employing agencies did not make the requisite contribution[s] to the Fund.” Id. But, of course, Congress did require employing agencies to make specified contributions to the Fund, and the Postal Service is legally obligated to do so. See supra pp. 184– 186, 191. The question here is only whether Congress intended that the remedy for the Postal Service’s failure to meet its obligations would be to deny employees the service credit that the statute contemplates they will earn. We agree with OPM that Congress was concerned with the fiscal management of the Fund. But “ensur[ing] a fully funded and financially sound retirement benefits plan for Federal employees,” Pub. L. No. 99-335, § 100A(2), 100 Stat. at 516 (codified at 5 U.S.C. § 8401 note), was only whether Congress intended generally to condition coverage and accrual of service credit for FERS employees on the agency’s deposit of its employer contributions into the Fund. 198 Service Credit for Retirement Annuities of USPS Employees one of several congressional purposes in enacting FERS. Among other things, Congress also enacted FERS to establish a new retirement plan “to assist in building a quality career work force in the Federal Government.” Id. § 100A(5). That goal could well be subverted if Congress were to create a retirement system in which employees’ retirement benefits could be diminished or stripped away by their agencies’ failure to pay the statutorily required contributions into the Fund. Even recognizing that a fully funded pension system was an important congressional objective, “no legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular object is the very essence of legislative choice—and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.” Rodriguez v. United States, 480 U.S. 522, 525–26 (1987). Further, although we do not “resort to legislative history to cloud a statutory text that is clear,” Ratzlaf v. United States, 510 U.S. 135, 147–48 (1994), we believe that, to the extent that the legislative history of FERS is illuminating, it undermines, rather than supports, the view that Congress intended to deny employees eligibility and creditable service under FERS for periods of employment in which their employing agencies fail to make their required employer contributions to the Fund. The legislative history makes clear that Congress intended the basic annuity in FERS to operate as a defined benefit plan. See, e.g., S. Rep. No. 99-166, at 6, 9, 30, 42; FERS Comm. Print at 7. Such a plan consists of “a general pool of assets” out of which an employee, “upon retirement, is entitled to a fixed periodic payment.” Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 439 (1999) (citation omitted). “A defined benefit plan promises a participant a specific amount of pension benefits at retirement determined under a formula based on years of participation in the plan, and in most nonbargained plans, based on an average of compensation.” Stephen R. Bruce, Pension Claims: Rights and Obligations 17–18 (1988) (“Bruce”); see also James E. Burk, Pension Plan Management Manual: Administration and Investment ¶ 1.01[8], at 1-8 (1987) (“Burk”) (benefits in a defined benefits plan determined “by a formula that is generally related to service and compensation”); H.R. Comm. on Post Office and Civil Serv., 98th Cong., Designating a Retirement System for Federal Workers Covered by Social Security 6 (Comm. Print 1984) (prepared by 199 35 Op. O.L.C. 181 (2011) the Congressional Research Service) (“CRS Comm. Print”) (“A defined benefit plan determines benefit amount by a formula. Upon reaching the terms specified in the definition of eligibility (usually a combination of age and years of service), the worker receives the benefit computed from the application of the formula to the employee’s years of service and salary.”). 14 The FERS basic annuity follows this model. FERS promises participants a specific level of benefits by application of a formula that is generally dependent on the employee’s average pay and total service, 5 U.S.C. § 8415(a), and that bases the employing agencies’ contributions on the “normal-cost percentage” of benefits, id. § 8423(a), which is actuarially computed by OPM. Id. § 8401(23); cf. Burk ¶ 2.01, at 2-4 (employer’s contribution in a defined benefit plan is actuarially computed). The benefit formula in a defined benefit plan “is geared to providing a specific retirement benefit rather than based on the rate of contributions made by the employer to the pension fund.” Burk ¶ 2.01, at 2-5. A pension plan covered by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001–1461 (2006 & Supp. III 2009), for example, “is liable for benefits without regard to whether the employer has made required contributions.” ABA Section of Labor and Employment Law, Employment Benefits Law 279 (1991). Thus, it was well established by the time Congress enacted FERS, see USPS Memo at 9, that a multiemployer pension plan covered by ERISA, which is analogous in many respects to the multi-agency approach of FERS, must award credit based on the service performed for a participating employer regardless of whether the employer made the required contributions for such service. As the Supreme Court recognized a year before the enactment of FERS: By contrast, under a “defined contribution plan,” the promise is that “certain contributions will be made and credited to an employee’s individual account. Contribution rates are fixed, usually as a percentage of the employee’s earnings. Such plans do not guarantee an employee any fixed level of benefits at retirement. An employee’s benefit will vary, depending on the amount of the contributions and the interest and capital appreciation accumulated on them.” Burk ¶ 1.02[8], at 1-8 –1-9; see also Hughes, 525 U.S. at 439; Bruce at 18. “Under defined contribution plans, employers know exactly what the pension obligation is and the benefits are fully funded at the time of the contribution. Employees bear the risk of variable market performance[.]” CRS Comm. Print at 6–7. 14 200 Service Credit for Retirement Annuities of USPS Employees The consistent view of the Secretary of Labor is that, under ERISA’s minimum participation, vesting, and benefit accrual standards for pension plans . . . a pension plan covered by ERISA must award credit “solely on the basis of service performed for a participating employer, regardless [of] whether that employer is required to contribute for such service or has made or defaulted on his required contributions.” In the Secretary’s judgment, “[a]ny plan term or Trustees’ resolution to the contrary is . . . unlawful and unenforceable.” Cent. States, Se. & Sw. Areas Pension Fund v. Cent. Transp., Inc., 472 U.S. 559, 567 n.7 (1985) (citations omitted). 15 Given this backdrop, it would be reasonable to expect some indication in the text of FERS, or at least in its legislative history, if Congress had intended to depart from these principles and make accrual of employee 15 Accord Cent. States, Se. & Sw. Areas Pension Fund v. Gerber Truck Serv., Inc., 870 F.2d 1148, 1151 (7th Cir. 1988) (“Multi-employer plans are defined-contribution in, defined-benefits out. Once they promise a level of benefits to employees, they must pay even if the contributions they expected to receive do not materialize[.]”); Bruce at 135– 36 (“[H]ours of service for use in determining [years of work] are determined solely on the basis of hours of work, or hours for which payment is due the employee from the employer, without reference to the delinquency or nondelinquency of the employer’s contributions to the [multiemployer] plan.”). As the Supreme Court noted, the longstanding position of the Secretary of Labor at the time of the enactment of FERS was that ERISA required that credit for hours worked “must be given solely on the basis of service performed for a participating employer, regardless whether that employer is required to contribute for such service or has made or defaulted on his required contributions. Any plan term or Trustees resolution to the contrary is, in our judgment, unlawful and unenforceable.” Dep’t of Labor Advisory Op. No. 76–89 (Aug. 31, 1976); accord Dep’t of Labor Advisory Op. No. 78-28A (Dec. 5, 1978); Dep’t of Labor Advisory Op. 78-21A (Oct. 16, 1978); Dep’t of Labor Advisory Op. No. 78-20A (Oct. 6, 1978); see also Rules and Regulations for Minimum Standards for Employee Pension Benefit Plans, 41 Fed. Reg. 56,462, 56,464 (Dec. 28, 1976) (explaining, with respect to 29 C.F.R. § 2530.200b-2, regarding accrual of hours of service, that employee hours “must be credited to an employee regardless of whether contributions are required to be made to the plan on account of such hours or whether such contributions, even though required, have not in fact been made”). Before the passage of FERS, the IRS had also issued a Revenue Ruling explaining that a multiemployer plan that did not credit all years of service because of an employer’s failure to make the required contributions failed to meet the requirements of “a qualified pension plan” that it provide “definitely determinable benefits” to its employees and violated the minimum participation and vesting standards of the Internal Revenue Code. Rev. Ruling 85-130, 1985-2 C.B. 137. 201 35 Op. O.L.C. 181 (2011) benefits contingent on employer contributions. Instead, the legislative history underlines that Congress intended to establish a new retirement plan for federal employees that would “provid[e] employees with financial security through a retirement program that compares favorably with those found in the private sector.” S. Rep. No. 99-166, at 38. 16 It is unlikely, in light of this goal, that Congress would have incorporated into FERS an arrangement that would have been unlawful in the private sector without saying so. Finally, OPM argues that construing FERS to give employees an entitlement to service credit without the employer’s contribution “would be inconsistent with the Director’s fiduciary responsibilities to the Fund.” OPM Memo at 7. But, as set forth above, OPM is obligated under the statute to award service credit to employees who satisfy the statutory conditions set forth, see supra Part III.A, and to “pay all benefits that are payable under subchapter II, IV, V, or VI of this chapter from the Fund.” 5 U.S.C. § 8461(a). As we read the statute, OPM is required to pay those benefits without regard to whether the employing agency—here, the Postal Service—has made its employer contributions to the Fund. The Director’s fiduciary obligations thus include awarding service credit and paying benefits in accordance with the statute, and he would not violate those obligations by doing so. 16 See also, e.g., 132 Cong. Rec. 11,912 (1986) (statement of Rep. Myers) (conference report includes “many of the concepts that a great many of the better private retirement programs have”); id. at 11,909 (1986) (statement of Rep. Ford) (Congress had an opportunity “to create a new pension system with the best features found in the private sector”); id. at 11,304 (1986) (statement of Sen. Gore) (“The retirement system which we have developed employs a three-tier design that combines Social Security with a defined benefit tier that focuses on providing a reliable base pension benefit[.]”); id. at 11,303 (1986) (statement of Sen. Glenn) (FERS “provides Government employees with a threepart program which is comparable to plans widely used in private industry” and “one that helps to recruit and maintain an excellent and skilled work force”); id. at 11,301 (1986) (statement of Sen. Stevens) (praising the new retirement plan as “a top notch, economical retirement system for the Federal workforce which is on part with the best in the private sector,” providing “solid retirement benefits” and “offering financial security to Federal retirees”); S. Rep. No. 99-166, at 4 (emphasizing that “the Federal Government must have the ability to attract and retain highly qualified individuals in all occupations” and that “[a]n attractive, flexible retirement plan can assist the government in meeting these objectives . . . to build a career workforce” and “to assist in recruiting midcareer employees”). 202 Service Credit for Retirement Annuities of USPS Employees IV. “If, upon examination of ‘the particular statutory language at issue, as well as the language and design of the statute as a whole,’ . . . it is clear that [the agency’s] interpretation is incorrect, then we need look no further[.]” Fort Stewart Sch. v. FLRA, 495 U.S. 641, 645 (1990) (quoting K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)). In our view, FERS has “directly spoken to the precise question at issue,” Chevron, 467 U.S. at 842, and OPM may not address the Postal Service’s failure to make the employer contributions required by FERS by denying postal employees coverage or creditable service under FERS. We do not address the propriety of any other action OPM might take to address the Postal Service’s failure to make the required contributions to the Fund. VIRGINIA A. SEITZ Assistant Attorney General Office of Legal Counsel 203

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Immigration Laws and Iranian Students T h e P resid en t has a u th o rity u n d er th e Im m ig ratio n and N atio n ality A c t (IN A ) to lim it or h alt e n try o f Iran ian n ationals in to th e U nited S tates. H e also has av ailab le to him u n d er th at sta tu te a n u m b er o f o p tio n s by w h ic h he m ay re g u la te th e c o n d itio n s u n d er w h ich Iran ian n atio n als a lre a d y p resen t in th e c o u n tr y rem ain h e re o r d ep art. W h ile th e m a tte r is n o t free from d o u b t, a reaso n ab le read in g o f § 241(a)(7) o f th e IN A w o u ld allo w th e A tto rn e y G e n e ra l to tak e in to a c c o u n t ad v e rse foreign p o licy c o n s e ­ q u en ces in d e te rm in in g w h e th e r an alien ’s c o n tin u e d p resen c e in th e U n ited S tates is p reju d icial to th e p u b lic in terest, so as to re n d e r him o r h e r d e p o rta b le . H o w e v e r, it w o u ld be c o n stitu tio n a lly in a p p ro p ria te to identify m em bers o f th e class o f d e p o rta b le p erso n s in term s o f th eir exercise o f F irst A m en d m en t rights. B oth th e IN A an d th e C o n stitu tio n re q u ire th a t all p erso n s be g iv e n a h e arin g an d an o p p o rtu n ity fo r ju d ic ia l rev iew b e fo re being d e p o rte d ; h o w e v e r, n e ith e r th e IN A no r th e C o n stitu tio n w o u ld p re c lu d e th e A tto rn e y G e n e ra l o r C o n g re ss from tak in g actio n d ire c te d so lely at Iran ian nationals, p a rtic u la rly in lig h t o f th e serio u s national se cu rity an d foreign p o licy in terests at sta k e in th e p resen t crisis. N ovem ber 11, 1979 M EM O R A N D U M O P IN IO N F O R T H E A T T O R N E Y G E N E R A L This memorandum has been prepared by this Office and the Immi­ gration and Naturalization Service (IN S) G eneral C ounsel’s office. It addresses the statutory provisions regarding entry and deportation o f aliens as they pertain to Iranian nationals in the United States. It also examines the constitutional authority o f Congress to enact legislation affecting Iranians residing in, or attem pting to enter, this country. W e conclude: (1) that the President presently possesses the authority to halt entry o f Iranians into the United States; (2) that, w hile the m atter is largely unprecedented and would raise nonfrivolous constitutional ques­ tions, the A ttorney G eneral may be able to prom ulgate standards w hich w hich w ould render deportable aliens whose presence in this country is prejudicial to the public interest and threatens the conduct o f foreign affairs; (3) that the immigration laws and the Constitution require that all persons receive a hearing and judicial review before being deported; (4) that it is therefore unlikely that deportations could be effected with sufficient immediacy to have an impact on the present crisis in Tehran; (5) that the A ttorney G eneral could require all Iranian nonim migrant students to dem onstrate to the IN S that they are “ in status” (i.e., not deportable); (6) that regulations and statutes directed solely at Iranian 133 nationals would not violate the Constitution; and (7) that Congress has the authority to bar from entering and to deport Iranians. I. Population of Iranians Iranian nationals in the United States may fall into four categories: (1) lawful perm anent residents; (2) nonimmigrants; (3) parolees; and (4) aliens in the United States in violation o f law. Law ful perm anent residents as defined in § 101(a)(20) of the Im m igra­ tion and Nationality A ct (IN A o r A ct), 8 U.S.C. § 1101(a)(20), are aliens w ho have entered legally with im migrant visas or who have adjusted status while in the United States. A lawful perm anent resident may remain in the United States indefinitely unless he commits miscon­ duct covered by the deportation grounds set forth in § 241(a) o f the Act, 8 U.S.C. § 1251(a). Nonim m igrants are aliens within one o f the tw elve categories speci­ fied in § 101(a)(15) o f the A ct, 8 U.S.C. § 1101(a)(15). Generally, nonim m igrants are adm itted for a particular purpose for a period of time, and under such conditions as the A ttorney G eneral may specify. § 214(a) o f the IN A , 8 U.S.C. § 1184(a). As o f August 30, 1979 there w ere approxim ately 130,000 nonim m igrants from Iran in the United States. O f these, approxim ately 50,000 w ere nonim migrant students as defined in § 101(a)(15) o f the A ct, 8 U.S.C. § 1101(a)(15). A few Iranians may be in the United States as parolees who were allowed to enter tem porarily for em ergency reasons or for reasons deemed strictly in the public interest in accordance with the authority o f the A ttorney G eneral under § 212(d)(5) o f the A ct, 8 U.S.C. § 1182(d)(5). Parolees are not considered to have been “adm itted” to the United States and may be ordered to depart in an exclusion pro­ ceeding rather than a deportation proceeding. Iranians w ho entered the country illegally o r w ho have failed to maintain nonim migrant status would be considered to be here in viola­ tion o f law and w ould be prim a facie deportable. II. Present Policy Toward Iranians As a result o f discussions between the State D epartm ent and the Justice D epartm ent following the fall o f the Shah, IN S has instituted a practice o f granting “extended voluntary departure” to Iranians in the United States w ho may be out o f status but w ho have expressed an unwillingness to return to Ira n .1 An alien granted extended voluntary departure is effectively perm itted to stay in this country for an undeter­ mined period o f time. In addition, INS has deferred inspection of potentially excludable Iranians w ho claim political asylum. On the basis 'Ira n ia n s w ho have been co n v icted o f crim es w ithin the U nited States are not included in this policy. 134 of representations made by the State D epartm ent, the foregoing policies have been extended until June 1, 1980. Therefore, no Iranians are currently being deported from the United States against their will. Iranians who have been allowed to remain under these policies may be granted work authorization by the INS. A t present, approxim ately 4,400 Iranians have been granted extended voluntary departure under the INS policy. T he original rationale for the policy o f not enforcing departure was that the State D epartm ent was unsure about conditions in Iran follow ­ ing the fall o f the Shah’s governm ent. By not taking a position with respect to involuntary return o f Iranians, the State D epartm ent believed that it would have an opportunity to allow the situation in Iran to stabilize. In addition, claims for asylum w ere not determ ined because it was believed that statem ents regarding the likelihood o f persecution in Iran may have had an adverse im pact on the establishment o f diplo­ matic relations w ith the new Iranian governm ent. It should also be noted that since January 1, 1979, all nonimmigrant students, including Iranians, have been eligible for “duration o f status” under INS regulations. 8 C .F.R . § 214.2(0(2) (1979). A student adm itted for “duration o f status” has no date specified for the expiration o f his stay, but may remain for so long as he continues to be a full-time student in good standing at his school. III. Statutory Entry and Deportation Procedures T he IN A provides elaborate procedures regarding entry and expul­ sion o f aliens. As discussed below, several o f the procedures are consti­ tutionally required. A. Entry Immigrants may be adm itted into the United States if they possess a valid visa and are not otherw ise excludable under §212 o f the IN A , 8 U.S.C. §1182. Section 212 lists 33 grounds for exclusion including insanity, drug addiction, pauperism, conviction o f a crim e involving moral turpitude, prostitution, false procurem ent o f docum entation or fraud, advocacy o f anarchism and communism, or engaging in subver­ sive activities. Nonim m igrants (e.g., students, visitors, consular officials, foreign press) are adm itted upon conditions and for such time as estab­ lished by regulations by the A ttorney General. § 214 o f the IN A , 8 U.S.C. § 1184. Aliens seeking entry are inspected by immigration officers w ho may detain for further inquiry aliens “ w ho may not appear . . . to be clearly and beyond a doubt entitled” to enter. § 235(b) o f the IN A , 8 U.S.C. § 1225(b). Such further inquiry occurs before a special inquiry officer (immigration judge), w ho is authorized to administer oaths, present and receive evidence, examine and cross-examine the alien or witnesses. 135 T he alien is entitled to representation by counsel, and a com plete record o f the proceedings must be kept. §§ 235, 236, 292 o f the IN A , 8 U.S.C. §§ 1225, 1226, 1362. A decision excluding an alien may be appealed to the Board o f Imm igration Appeals, an independent quasi­ judicial appellate body created by the A ttorney G eneral within the D epartm ent o f Justice. 8 C .F.R . §3.1. Board decisions in exclusion cases are reviewable in federal district court by habeas corpus. T he IN A gives the President authority to “suspend the entry o f all aliens or any class o f aliens as immigrant o r nonimmigrants, o r impose on the entry o f aliens any restrictions he may deem to be appropriate” upon a finding that entry “w ould be detrim ental to the interests o f the United States.” § 2 12(0 o f the IN A , 8 U.S.C. §1182(0- See also § 215(a)(1) o f the IN A , 8 U.S.C. § 1185(a)(1), as am ended by Pub. L. No. 95-426, § 707, 92 Stat. 992 (1978). B. Deportation T he IN A specifies 19 grounds for deportation o f aliens. These in­ clude excludability at time o f entry, conviction o f a crim e involving m oral turpitude, advocacy o f anarchism o r communism, involvem ent in narcotic use or sale, and failure to maintain status o r to com ply with any condition o f status. A deportable alien may be arrested upon a w arrant o f the A ttorney G eneral and held in custody o r released on bond. M ost deportation cases are initiated by the issuance o f an order to show cause w ithout the issuance o f a w arrant o f arrest. A t the ensuing deportation proceeding, conducted by a special inquiry officer, the alien is entitled to notice o f the charges against him and o f the time and place o f the proceedings, to counsel, and to an opportunity to examine the evidence against him, present evidence in his ow n behalf and cross examine governm ent witnesses. § 242 of the IN A , 8 U.S.C. § 1252. T h e G overnm ent has the burden o f proving deportability by clear, convincing, and unequivocal evidence. Woodby v. INS, 385 U.S. 276 (1966). T he decision o f the special inquiry officer is appealable to the Board o f Im m igration Appeals (BIA). Thereafter, judicial review is available in the court o f appeals. § 106(a) o f the A ct, 8 U.S.C. § 1105 (a). A ny alien held in custody under an order o f deportation may also obtain judicial review through habeas corpus proceedings. M ost o f the statutory provisions establishing hearing rights are consti­ tutionally required. Since at least 1903, it has been recognized that the D ue Process Clause o f the Constitution applies to deportation proceed­ ings. T h e Japanese Im m igrant Case, 189 U.S. 86, 100-02 (1903). Wong Yang Sung v. M cGrath, 339 U.S. 33, 49-51 (1950); Kwong H ai Chew v. Colding, 344 U.S. 590, 596-98 (1953). W hile C ongress may have plenary authority to determ ine w hat classes o f aliens must leave the United States, see below, deportable aliens may not be expelled w ithout a 136 hearing. H ow ever, the provision o f a right o f appeal to the BIA and then to a federal court o f appeals is not constitutionally required. C. Claim s fo r Asylum An alien in either exclusion or deportation proceedings may apply for asylum under INS regulation if he claims that he would be perse­ cuted in his home country on the basis o f race, religion, nationality, political opinions, o r membership in a particular social group. 8 C.F.R. § 105 (1979). See also § 243(h) o f the A ct, 8 U.S.C. § 1253(h). IV. Grounds for Deportation and Exclusion Under Current Law A. Deportation 1. Lawful permanent resident aliens Potential grounds for deportation o f Iranian nationals presently in the United States are contained in tw o subsections of the IN A . § 241(a)(4) and (7) o f the IN A , 8 U.S.C. § 1251(a)(4), (7). Section 241(a)(4) pro­ vides for the deportation o f an alien w ho within 5 years after entry into the United States is convicted o f a crim e involving moral turpitude and is sentenced to a year or m ore in prison, o r who is convicted o f tw o crimes involving moral turpitude at any time after entry. This section would become operative, for example, if an Iranian national is con­ victed o f com m itting a crim e o f violence in this country. Section 241(a)(7), 8 U.S.C. § 1251(a)(7), provides for the deportation of an alien w ho has engaged in, or has the purpose o f engaging in, activities described in §212(a)(27) of the IN A , 8 U.S.C. § 1182(a)(27). Section 212(a)(27) renders excludable any alien w ho the A ttorney G en­ eral has reason to believe seeks to enter the United States to engage in activities “which would be prejudicial to the public interest, o r endan­ ger the welfare, safety, or security o f the United States.” T he BIA has indicated, in dicta, that § 212(a)(27) “is broad enough to apply to others than subversives.” M atter o f M cD onald and Brewster, 15 I&N Dec. 203, 205 (BIA 1975) (refusing to bar entry o f persons carrying six marijuana cigarettes).2 In that decision, the Board interpreted §212(a)(27) to bar entry o f persons w ho seek to engage in activities “inimicable to the internal security o f the United States.” Id. This Office has opined that this section would authorize the exclusion o f six Rhodesian officials seeking to enter the United States to attend an agricultural convention; such entry was arguably deemed prejudicial to this nation’s conduct o f foreign affairs. 'S e e In the M atter o f M., 5 I&N D ec. 248 (BIA 1953) (refusing to bar entry o f pacifist under § (a)(27)). 137 T he scope o f § 241(a)(7) is unclear. T he leading treatise states that the section’s “expansive and undefined pow er has not yet been invoked in any actual case.” 1A G ordon & Rosenfield, Im m igration Law and P rocedure § 4 .10c, at p. 4-93 (1979). A reasonable reading of the section, supported by its legislative history, w ould allow the A ttorney G eneral to take into account serious adverse foreign policy conse­ quences in determ ining w hether an alien’s stay here is prejudicial to the public interest. A rguably, the A ttorney G eneral, perhaps upon advice from the Secretary o f State, could determ ine that the presence of particular Iranian nationals severely injures the ability o f this country to conduct foreign policy and threatens the m aintenance o f public order. T he question is not free from doubt, how ever. A lthough this Office has opined heretofore that a broad reading o f this statute is w arranted, a substantial argum ent can be made that the “public interest” ground for deporting aliens was intended by C ongress to give the A ttorney G en­ eral the pow er to deport only w here the conduct o f the alien is inimical to the public interest, rather than w here his presence is thought prejudi­ cial to the United States. If that reading o f the statute is co rrec t,3 then the operation o f this provision w ould require a determ ination of the type o f activity that is cause for deportation. We have serious doubt w hether the identification o f the class o f deportable persons could be made to turn on their exercise o f First A m endm ent rights. Thus it w ould probably not be constitutionally appropriate to identify for de­ portation all those aliens w ho have participated in m arches or dem on­ strations advocating the death o r extradition o f the Shah. Cf. Harisiades v. Shaughnessy, 342 U.S. 580, 592 (1952); Dennis v. United States, .341 U.S. 494, 502 (1951); In the M atter o f M., supra, 5 I&N Dec. at 252. In short, while this section appears to give the A ttorney General wide discretion in determ ining w ho may remain in the United States, it may be difficult to establish appropriate guidelines for its implementation. 2. Nonim m igrants A nonim migrant is subject to the same grounds o f deportation under § 241(a)(4) and (7) as discussed above. In addition, a nonim m igrant who has remained beyond the length o f his authorized stay may be deported as an overstay under § 241(a)(2) o f the Act. H ow ever, as noted above, since January 1, 1979, all nonim m igrant students, including Iranians, have been adm itted w ithout a specified departure date and may remain as long as they continue to be students in good standing with their schools. Exam ples o f violations o f status are w orking w ithout authorization or perform ing other activities w hich are inherently inconsistent with the 3 T h e Suprem e C o u rt has held th at dep o rtatio n provisions should be strictly construed. Fong Haw Tan v. Phelan. 333 U.S. 6, 10 (1948). 138 purpose for admission. H ow ever, the Board of Im m igration Appeals has held that the test for students under § 2 4 1(a)(9) is w hether the student’s actions have meaningfully interrupted his studies. M atter o f M urat-Kahn 14 I&N Dec. 465 (BIA 1973). This view has been endorsed by at least one appellate court. M ashi v. INS, 585 F.2d 1309 (5th Cir. 1978). Therefore, under current law the mere fact of arrest, even when followed by incarceration, does not autom atically term inate a student’s status. 3. Illegal entrants An Iranian w ho entered the United States with an im proper visa or without inspection would be deportable under §§ 241(a)(1) or (2). B. Exclusion Assuming that an Iranian seeking to enter the United States as an immigrant o r a nonim migrant had a proper visa, the relevant exclusion grounds would be §§ 212(a)(27) and (29), 8 U.S.C. § 1182(a)(27), (29). Section 212(a)(27) relates to aliens seeking to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security o f the United States. This statutory language may have broad applicability as discussed above. Section 212(a)(29)(A) covers certain subversive activities and would be narrow er in scope than §212(a)(27). V. Executive Branch Options Under Present Statutory Authority A. Procedural Options 1. D eportation Nonim m igrants w ho are out o f status are deportable. H ow ever, expe­ ditious deportation o f these persons may not presently be possible because of practical problems in identifying and locating them. Even if out-of-status persons are found, deportation proceedings, and subse­ quent BIA and judicial review, take on the average 1 year.4 Since a deportation hearing is constitutionally required, and judicial review is provided by statute, it will be difficult to expedite proceedings. The BIA, which is created by regulation, could be eliminated, although such action could sacrifice uniformity of and control over deportation proceedings. The A ttorney General could order increased investigation o f the status o f Iranian nonimmigrants and order the IN S and B IA to assign priority to deportation proceedings against such aliens. It should 4 T he IN S estim ates that this involves tw o m onths at the IN S district office, four m onths at the BIA, and six m onths in the court o f appeals. 139 be recognized, how ever, that the Constitution and the IN A prevent any sum m ary deportation o f Iranian nationals. 2. E ntry T he IN A gives the President broad authority to prescribe regulations conditioning or limiting entry o f aliens, o r any class o f aliens. §§ 212(f), 215 o f the IN A , 8 U.S.C. §§ 1182(f), 1185. In addition to substantive limits on entry, discussed below, these provisions could authorize the President to establish special screening procedures for Iranian nationals to probe their reasons for entry and activities they plan to undertake in the United States. Such regulations must meet the test o f “reasonable­ ness” ; presumably they could be justified if the President has inform a­ tion that Iranian terrorists o r other persons intending to undertake violent action in this country are seeking entry. B. Substantive Options 1. Entering aliens a. Change conditions o f stay. U nder the authority o f § 214(a), the INS published proposed regulations in August, 1979, w hich would make conviction for commission o f a violent crim e for w hich a sentence of one year o r m ore could be imposed a violation o f nonim m igrant status. In addition, the proposed regulations w ould make the provision of truthful inform ation to the IN S a condition o f a nonim m igrant’s stay in the United States. These regulations could be put into effect by some time in Decem ber, 1979. T he IN S expects that student groups will challenge these regulations on the ground that they add deportation grounds not provided by Congress. b. Presidential order under §§ 212(f) and 215(a). U nder §§212(0 and 215(a) o f the A ct, the President could declare that the admission of Iranians o r certain classes o f Iranians w ould be detrim ental to the interests o f the United States. Such a restriction would have to meet the test o f reasonableness. G iven the present uncertainty o f the situation in Iran, the possible internal problem s and violence w hich could be caused by Iranians dem onstrating in the United States, and the diffi­ culty in providing security for Iranians in the United States, such an order w ould probably be sustainable. 2. Aliens in the U nited States U nder §214 o f the A ct, the A ttorney G eneral could prom ulgate a regulation requiring all nonim m igrant students to appear at INS offices 140 and dem onstrate they have maintained status.5 T he justification for such a regulation could be the necessity o f securing an accurate count of nonimmigrant students in the United States and reexamining their period o f stay in light o f recent events. It may be difficult to justify the inclusion o f nonim migrant students other than Iranians. It should be noted that such action would be likely to overburden INS offices since there are several hundred thousand nonim migrant students in the United States. Furtherm ore, locating and prosecuting persons w ho do not appear would be difficult and resource-consuming. A m ore limited option would be to require only Iranian nonim mi­ grant students to appear at IN S offices. Such a regulation could be justified upon information that substantial numbers o f Iranian students are out o f status. H ow ever, it would produce the same practical prob­ lems as the broader regulation (there are 50,000 nonim m igrant Iranian students). 3. Restrictions on departure U nder §215 the President could restrict the departure o f Iranians from the United States. H ow ever, this would seem to serve no useful purpose under the present circumstances. C. Equal Protection and Iranians Several o f the options outlined above single out Iranian nationals for special treatm ent— i.e., a bar on entry o f Iranians, special screening procedures, requirem ents that Iranian nonim migrants report to IN S district offices. A rguably, new requirem ents based on national origin raise equal protection concerns. It is not likely that a court would invalidate any o f the proposed actions on the ground that they violated the Fifth A m endm ent.6 While the States may not discriminate on the basis o f alienage w ithout dem on­ strating a compelling State interest, see Graham v. Richardson, 403 U.S. 365 (1971), and aliens in the United States are protected by the due process guarantee o f the Fifth Am endm ent, Wong Yang Sung v. McGrath, 339 U.S. 33, 48-51 (1950), the federal governm ent has plenary pow er to legislate on immigration matters. T he Suprem e C ourt has recognized that Congress may deny entry to, or require deportation of, aliens on grounds w hich w ould be impermissible if applied to A m erican citizens. See The Chinese Exclusion Case, 130 U.S. 581 (1889); Galvan v. Press, 347 U.S. 522 (1954); Oliver v. IN S, 517 F.2d 426, 428 (2d Cir. 5 T h e "g o o d cause” exception to the A dm inistrative P rocedure A ct w ould have to be invoked to permit prom ulgation o f the regulation w ithout notice and com m ent. 5 U.S.C. § SS3. 6 Federal regulation o f im m igration is tested by the Fifth A m endm ent, w hich essentially inco rp o ­ rates the F o u rteen th A m endm ent’s guarantee o f equal protection. See H am pton v. Mow Sun Wong. 426 U.S. 88, 99-101 (1976); Bolling v. Sharpe, 347 U.S. 497 (1954). 141 1975) (per curiam), cert, denied, 423 U.S. 1056 (1976). C ongress’ plenary pow er is based on the fact that entry and deportation classifications are “vitally and intricately interw oven w ith contem poraneous policies in regard to the conduct o f foreign relations, the w ar pow er, and the m aintenance of a republican form o f governm ent. Such m atters are so exclusively entrusted to the political branches o f governm ent as to be largely immune from judicial inquiry or interference.” Harisiades v. Shaughnessy, 342 U.S. at 588-89. See Fong Yue Ting v. United States, 149 U.S. 698 (1893); H itai v. INS, 343 F.2d 466 (2d Cir.), cert, denied, 382 U.S. 816 (1965). Some cases suggest in dicta that judicial review may be available to overturn classifications for w hich no rational basis can be found— e.g., deportation on the grounds o f religion. Fiallo v. Bell, 430 U.S. 787, 793, n.5 (1977); Oliver v. INS, supra, 517 F.2d at 428. But such review would clearly be limited to w hether the lines draw n by Congress or the E xecutive branch are rational and not w holly arbitrary. See Francis v. INS, 532 F.2d 268 (2d Cir. 1976); N oel v. Chapman, 508 F.2d 1023, 1028 (2d Cir.), cert, denied, 423 U.S. 824 (1975). U nder this standard, we believe that the options outlined above w ould be constitutional. G iven the present crisis, the activities o f many Iranian nonim m igrant students, and the serious national security and foreign policy interests at stake, it is unlikely that a court would set aside otherw ise legitim ate policies directed solely at Iranian nationals. N or do we believe that any new regulations w ould be set aside if challenged as an instance o f unconstitutional “selective enforcem ent.” First, we assume that usual processing o f aliens for entry and deporta­ tion w ould continue. Second, courts have traditionally recognized broad prosecutorial discretion in the enforcem ent o f the law. While some cases have stated in dicta that a policy o f prosecutions based on an unjustifiable and arbitrary standard such as race or religion may be unconstitutional, e.g., Oyler v. Boles, 368 U.S. 448, 456 (1962), we believe that heightened enforcem ent efforts aimed at out-of-status Ira­ nian nonim migrants would not be so arbitrary as to deny such persons due process. W e believe that the President could make appropriate statem ents justifying such policies based on the international crisis, and upon a finding that many Iranian students (w ho constitute the largest foreign student group in the United States) may be out o f status. See United States v. Sacco, 438 F.2d 264, 271 (9th Cir.), cert, denied, 400 U.S. 903 (1970).7 ’ W hile w e know o f no case on point, w e believe that any prosecutions undertaken to stifle the exercise o f First A m endm ent rights by Iranian students might face a serious constitutional challenge. Cf. Lennon v. fN S . 527 F.2d 187, 195 (2d Cir. 1975). 142 VI. The Power of Congress The preceding sections have discussed the authority o f the President and the A ttorney G eneral under existing statutes. This section addresses the constitutional limitations on congressional authority to regulate entry and deportation o f aliens. It is well-established that “over no conceivable subject is the legisla­ tive pow er of Congress more com plete than it is o v er” the regulation of immigration. Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). The Supreme C ourt has consistently upheld the plenary pow er of Congress to make rules for the admission and deportation of aliens as inherent in the concept o f national sovereignty. The Chinese Exclusion Cases, supra; the Japanese Im m igrant Case, supra; Ekiu v. United States, 142 U.S. 651, 659 (1892). In recent years the Supreme C ourt has steadfastly refused to reconsider its earlier cases or to develop substantive limits on C ongress’ pow er to exclude and deport. See Fiallo v. Bell, 430 U.S. at 792-93; Kleindienst v. Mandel, 408 U.S. at 766; Galvan v. Press, 347 U.S. at 531 — 32 (“ [T]hat the formulation o f . . . policies [regarding entry and depor­ tation] is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect o f our governm ent.”) T he Supreme C ourt has also made clear that C ongress may deport persons for prior conduct w hich did not render them deportable at the time they so acted. T he retroactivity o f such legislation does not violate the Due Process Clause or constitute an ex post facto law. Lehmann v. Carson, 353 U.S. 685 (1957); Galvan v. Press, supra; N g Fung Ho v. White, 259 U.S. 276, 280 (1922). As stated most broadly by the Court: T he basis for the deportation o f presently undesirable aliens resident in the United States is not questioned and requires no reexamination. W hen legally adm itted, they have com e at the N ation’s invitation, as visitors or perm a­ nent residents, to share with us the opportunities and satisfactions o f our land. As such visitors and foreign nationals they are entitled in their persons and effects to the protection o f our laws. So long, how ever, as aliens fail to obtain and maintain citizenship by naturalization, they remain subject to the plenary pow er o f C ongress to expel them under the sovereign right to determ ine what noncitizens shall be perm itted to remain within our borders. Changes in w orld politics and in our internal econom y bring legislative adjustm ents affecting the rights o f various classes o f aliens to admission and deportation . . . . Since “ [i]t is thoroughly established that Congress has pow er to 143 o rd er the deportation o f aliens whose presence in the country it deems hurtful,” the fact that petitioners, and respondent . . . , w ere made deportable after entry is immaterial. T hey are deported for w hat they are now, not for w hat they were. O therw ise, when an alien once le­ gally becam e a denizen o f this country he could not be deported for any reason o f w hich he had not been fore­ w arned at the time o f entry. M ankind is not vouchsafed sufficient foresight to justify requiring a country to permit its continuous occupation in peace or w ar by legally ad­ m itted aliens, even though they never violate the laws in effect at their entry. T he protection o f citizenship is open to those w ho qualify for its privileges. T he lack of a clause in the C onstitution specifically em pow ering such action has never been held to render Congress impotent to deal as a sovereign w ith resident aliens. Carlson v. London, 342 U.S. 534-37 (1952) (footnotes om itted) (quoting Bugajewitz v. Adams, 228 U.S. 585, 591 (1913)). Thus, Congress possesses alm ost unlimited pow er in establishing sub­ stantive regulations defining categories o f aliens w ho may enter and w ho must leave the United States. C ongress clearly has the pow er to bar all Iranians from entering the United States and could order all Iranian nationals out o f the country. O f course, such legislation raises serious policy issues: many Iranian nationals in this country may be loyal to the United States or the Shah and may be well-integrated members o f A m erican society w ith jobs and families. Furtherm ore, some Iranians may face persecution in Iran and thus w ould apply for asylum here. N or do w e believe, as discussed above, that legislation directed solely at Iranians would offend the Fifth Am endm ent, as long as there was a rational basis for such legislation.8 A ccordingly, C ongress could constitutionally adopt, for example, legislation: (1) barring entry o f Iranians; an d /o r (2) deporting all Iranian nonim m igrant students. 8[W ]hether im m igration law s h ave been cru d e and cruel, w hether they may have reflected xenophobia in general o r anti-Semitism o r anti-C atholicism , the responsibility belongs to Congress. C o u rts d o en fo rce the requirem ents imposed by C ongress upon officials in adm inistering im m igration laws, e.g., Kwock Jan Fat v. White, 253 U.S. 454, and the requirem ent o f D ue Process may entail certain procedural observances. E.g., N g Fung H o v. White, 259 U.S. 276. But the underlying policies o f w hat classes o f aliens shall be allow ed to en ter and w hat classes o f aliens shall be allow ed to stay, are for C ongress exclusively to determ ine even though such determ ination may be deem ed to offend A m erican traditions and may, as has been the case, jeopardize peace. Harisiades v. Shaughnessy, 342 U.S. at 597 (F ran k fu rter, J., concurring). 144 It must be noted, how ever, that while Congress has broad substantive pow er to define categories o f admissible and deportable persons, its pow er to eliminate procedural protections is substantially limited by the D ue Process Clause o f the Constitution. As discussed above, the Su­ preme C ourt held consistently since the turn of the century that aliens may not be deported w ithout a prior hearing. R ecent decisions enlarg­ ing due process rights probably guarantee an alien (1) adequate notice o f the hearing, (2) the right to present evidence and cross-examine witnesses, (3) representation by counsel, and (4) an unbiased decisionmaker. And while Congress may eliminate or limit the scope o f review of deportation proceedings in the courts o f appeals, it is unlikely that it could deprive aliens o f the right to file habeas corpus petitions asserting deprivations o f due process and other constitutional rights. U.S. Const, art. I, § 9, cl. 2. See 2 G ordon and Rosenfield, supra, § 8.6a (1979). Thus, while Congress could order that all Iranian nonimmigration students leave the United States, it could not deprive such aliens of a hearing to dem onstrate that they do not come within the proscribed category. Japanese Immigration Case, supra. Congress may be able to expedite expulsion o f deportable aliens, such as out-of-status students, by providing for additional im migration offi­ cers and judges w ho could help locate and process such persons. H ow ever, the requirem ent o f a hearing and the availability o f habeas corpus review w ould prohibit any summary proceedings and render unlikely, as a practical matter, any immediate gain in the speed of enforcement o f the existing law. VII. Conclusion T here exists a rather broad range o f actions that could be taken both by the Executive Branch and by the Congress in this area. Necessarily, however, any action would have to be carefully scrutinized based upon the facts in existence at the time o f any proposed action and the strength of the national security and foreign affairs interests. Because of the sensitive and im portant First Am endm ent, equal protection and due process considerations likely to be im plicated by any action taken by the governm ent, and given the high- likelihood o f litigation, w e urge that any proposal be given careful and thorough consideration. Jo hn M. H arm on Assistant Attorney General Office o f L egal Counsel 145

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Authority of the President to Restrict Munitions Imports Under the Arms Export Control Act Restricting the import o f certain classes o f Russian firearms and ammunition that are deemed an unac­ ceptable risk to public safety is a legitimate use o f the President’s authority under the Arms Export Control Act to restrict the import of munitions in furtherance of United States foreign policy. February 9, 1996 M e m o r a n d u m O p in io n and fo r th e L e g a l A d v is o r S p e c ia l A s s is t a n t to th e to th e P r e s id e n t N a t io n a l S e c u r it y C o u n c il This letter addresses and explains the basis for the oral advice that we provided in early April 1995 regarding the President’s authority under the Arms Export Control Act, 22 U.S.C. §§2751-2799aa-2, (“ AECA” ) to restrict the import of certain munitions from the Russian Federation in furtherance of United States for­ eign policy. The question arises in connection with the Administration’s plan, as part of a general program of eliminating Cold War restrictions on trade and eco­ nomic cooperation with Russia, to take steps to remove Russia from the Inter­ national Traffic in Arms Regulations (“ ITAR” ) list, which provides that it is the policy of the United States to deny licenses for the import of defense articles originating in certain countries, including Russia. 27 C.F.R. §47.52 (1995). Rus­ sia’s presence on the ITAR list means American businesses are not granted li­ censes necessary to import Russian munitions. Once Russia is off the ITAR list, there would be no general prohibition on gun imports from Russia. We understand that the issue concerns the negotiation of voluntary export restraints with Russia to ensure that, once Russia is removed from the ITAR list, munitions imports from Russia would not jeopardize public safety.1 The question has been raised whether the President possesses authority under the AECA to limit the import of munitions from Russia. We have concluded that restricting the import of Rus­ sian munitions to certain classes of firearms and ammunition is a legitimate use of the President’s authority under the AECA to restrict the import of munitions in furtherance of United States foreign policy. Section 38 of the AECA authorizes the President to control the import and the export of defense articles and defense services “ [i]n furtherance of world peace and the security and foreign policy of the United States.” 22 U.S.C. § 2778(a)(1). Section 38 further authorizes the President “ to designate those items which shall be considered as defense articles and defense services for the purposes of this section and to promulgate regulations for the import and export of such articles and services.” Id. The Act generally requires a license as a condition 1 W e understand th a t the issue m ay also have been raised w hether voluntary restrain t ag reem en ts restrictin g im ports o f R u ssian m unitions vio late the G eneral A greem ent on T ariffs and T rade o r W orld T rad e O rg an iza tio n ru les. W e have taken no position on that issue. 49 Opinions o f the A ttorney General in Volume 20 of exporting or importing any defense articles so designated by the President. 22 U.S.C. §2778(b)(l)(B)(2). By Executive Order 11958, as amended, the President has delegated his author­ ity under section 38 to the Secretaries of State, Treasury, and Defense. Exec. Order. No. 11958, 3 C.F.R. 79 (1978), reprinted as amended in 22 U.S.C. §2751 note (1996). The delegation grants the Secretary of the Treasury primary responsi­ bility for issuing and administering permanent import controls of defense articles and services, and grants the Secretary of State primary responsibility for issuing and administering regulations relating to the rest of section 38, including export restrictions. The Secretary of the Treasury’s authority over imports is subject to the qualification that the Secretary “ shall be guided by the views of the Secretary of State on matters affecting world peace, and the external security and foreign policy of the United States.” Id. § 1(1)(2), 3 C.F.R. at 81, reprinted as amended in 22 U.S.C. §2751 note. We understand that, pursuant to this qualification, it has been the consistent practice of the Secretary of the Treasury to defer to the Secretary of State’s views on these matters. Pursuant to the delegation of authority, the Departments of State and Treasury issued regulations to implement the Act. See International Traffic in Arms Regula­ tions, 22 C.F.R. pts. 120-130 (1995) (State Department regulations); Importation of Arms, Ammunition and Implements of War, 27 C.F.R. pt. 47 (1995) (Treasury Department regulations). The designation of defense articles subject to import re­ strictions is set forth in the U.S. Munitions Import List at 27 C.F.R. §47.21 and includes categories for firearms and ammunition. We understand that one part of the Administration’s trade negotiation with Rus­ sia involves the possible importation into the United States from Russia of arms for sporting and hunting purposes. The Administration intends to continue to pre­ vent imports of certain classes of weapons that are deemed to pose an unaccept­ able risk to public safety. In our view, the AECA would authorize imposition of controls on such imports. As previously stated, section 38 authorizes the President to control the import of defense articles “ [i]n furtherance of world peace and the security and foreign policy of the United States.” 22 U.S.C. §2778(a)(l). The Federal Circuit recently affirmed the President’s authority under the AECA to prohibit the import of arms in furtherance of foreign policy objectives. B -W est Imports, Inc. v. United States, 75 F.3d 633 (Fed. Cir. 1996). We understand that the Administration’s objective in removing Russia from the ITAR list is to improve American-Russian trade relations, remove Cold War restrictions to economic cooperation, and expand eco­ nomic opportunities for both countries. These objectives reflect significant United States foreign policy goals. Thus, there can be no doubt that the bilateral trade reform contemplated by the Administration is designed to further the foreign pol­ icy of the United States. Accordingly, the contemplated import controls fall squarely within the statutory authorization of section 38. 50 Authority o f the President to Restrict Munitions Imports Under the Arms Export Control A ct We note that it could be argued that protecting public safety — the reason for limiting the importation of munitions into the United States— is a domestic, not a foreign policy concern. Even assuming that protecting public safety is viewed as exclusively a domestic issue, we do not believe this calls into question the President’s authority under section 38 (as delegated to the Secretaries of Treasury and State) to control import of munitions. United States foreign policy usually includes as one component the promotion of domestic goals or the avoidance of a negative impact on domestic concerns in the process of pursuing a foreign policy objective. Taking into account the domestic effects of foreign policy does not change the fact that it is foreign policy that is being set. See, e.g., M issouri v. Holland, 252 U.S. 416 (1920) (President possesses authority to promote foreign policy through treaty power even where object affected is a local concern). Indeed, it would be artificial as well as practically impossible to separate the two. So, for example, in committing American troops to a peacekeeping action, the Presi­ dent may consider domestic concerns in defining the purpose and length of time of American involvement. Similarly, in the present context, existing controls on imports — which were imposed in furtherance of foreign policy— are being re­ laxed— again in furtherance of foreign policy. The extent to which the United States is willing to ease trade restrictions in pursuance of its foreign policy objec­ tives is limited to ensure that it does not jeopardize public safety. Courts, in affirming the broad grant of authority to the President under the AECA to control the export and import of firearms on foreign policy grounds, have advised that “ statutes granting the President authority to act in matters touch­ ing on foreign affairs are to be broadly construed: ’’ In the external sector of the national life, Congress does not ordi­ narily bind the President’s hands so tightly that he cannot respond promptly to changing conditions or the fluctuating demands of for­ eign policy. Accordingly, when Congress uses far-reaching words in delegating authority to the President in the area of foreign rela­ tions, courts must assume, unless there is a specific contrary show­ ing elsewhere in the statute or in the legislative history, that the legislators contemplate that the President may and will make full use of that power in any manner not inconsistent with the provi­ sions or purposes of the Act. In a statute dealing with foreign af­ fairs, a grant to the President which is expansive to the reader’s eye should not be hemmed in or “ cabined, cribbed, confined” by anxious judicial blinders. B-W est Imports, Inc. v. United States, 75 F.3d at 636 (quoting South Puerto R ico Sugar Co. Trading Corp. v. United States, 334 F.2d 622, 632 (Ct. Cl. 1964)); see also Samora v. United States, 406 F.2d 1095 (5th Cir. 1969). Finally, as the 51 Opinions o f the Attorney General in Volume 20 court noted in South P uerto Rico Sugar Co. in sustaining the President’s discretion to impose conditions on imports, Presidents acting under broad statutory grants of authority have “ imposed and lifted embargoes, prohibited and allowed exports, suspended and resumed commercial intercourse with foreign countries” thereby reflecting “ the historical authority of the President in the fields of foreign com­ merce and of importation into the country.” 334 F.2d at 633, 634. The court specifically cautioned that “ [i]t would be difficult, and probably unwise, to sepa­ rate an executive choice in [the area of international economic relations] from the ‘important, complicated, delicate and manifold problems’ facing the President in the ‘vast external realm.’ ” Id. at 630 (quoting United States v. Curtiss-Wright E xport C orp., 299 U.S. 304, 319 (1936)). In determining how far to open United States markets to Russian arms manufacturers, the President is faced with just such a delicate confluence of factors that requires that United States foreign policy integrate international commercial policy with domestic policy concerns. For these reasons, we conclude that restricting the import of Russian munitions to certain classes of firearms and ammunition is a legitimate use of the President’s authority under the AECA as delegated to the Secretaries of Treasury and State. WALTER DELLINGER A ssistant Attorney General Office o f Legal Counsel 52

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(Slip Opinion) Executive Branch Participation in the Cyberspace Solarium Commission In our tripartite constitutional structure, any commission performing federal functions must reside within a single one of the three branches of government. The Cyberspace Solarium Commission is properly viewed as a Legislative Branch entity, because congressional appointees compose the majority of the Commission’s membership, the Commission exercises the investigative authorities of a congressional committee, and the Commission’s ultimate mission is to advise Congress. The Executive Branch officials serving on the Commission should act with one unified voice, subject to executive supervision, in advising the Commission and should maintain the confidentiality of Executive Branch information when sharing their information and expertise with the Commission. October 9, 2020 MEMORANDUM OPINION FOR THE LEGAL ADVISOR NATIONAL SECURITY COUNCIL The John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, 132 Stat. 1636 (2018) (“FY 2019 NDAA”), created the Cyberspace Solarium Commission (“Commission”) to “develop a consensus on a strategic approach to defending the United States . . . against cyber attacks.” Id. § 1652(a)(1), 132 Stat. at 2140–41. The fourteen-member Commission consisted of representatives from both the Legislative Branch and the Executive Branch: four senior Executive Branch officers who served ex officio and ten appointees from Congress. Id. § 1652(b)(1)(A), 132 Stat. at 2141. The Commission was required to provide a report to Congress with recommendations related to the proper “core objectives” for cyber defense and to “various strategic options to defend the United States.” 1 Id. § 1652(f )(1)–(2), (k)(1), 132 Stat. at 2142, 2146. The Director of National Intelligence (“DNI”), Secretary of Defense, and Secretary of Homeland Security were then required to provide their assessment of the report within 60 days of receiving it. Id. § 1652(l), 132 Stat. at 2146. 1 The Commission publicly released the report on March 11, 2020, but was not required by statute to formally submit the report to Congress until April 30. See Cyberspace Solarium Commission, Final Report (Mar. 2020), https://www.solarium.gov/report. 1 44 Op. O.L.C. __ (Oct. 9, 2020) The structure of the Commission raised a number of questions under the constitutional separation of powers, which bore upon whether and how the Executive Branch members of the Commission could participate in its work. This memorandum memorializes this Office’s oral advice provided to the Executive Branch members of the Commission, regarding the organization of the Commission’s operations, votes by Executive Branch officials about the Commission’s business, and the Executive Branch contributions to the Commission’s final report. Commissions with members appointed by both the Legislative and Executive Branches have been established on many prior occasions, but the Executive Branch has long recognized that such “hybrid” commissions present constitutional concerns. 2 Although these commissions may lawfully exercise advisory functions, where they exercise the authority of the government, they must do so within the confines of the Constitution’s tripartite structure and reside in one branch. Here, congressional appointees composed the majority of the Commission’s membership, the Commission exercised the investigative authorities of a congressional committee, and the Commission’s ultimate mission was to advise Congress. The Commission thus was properly viewed as a Legislative Branch entity. 2 See, e.g., Statement on Signing the Bill Establishing a Commission on the Bicentennial of the United States Constitution (Sept. 29, 1983), 2 Pub. Papers of Pres. Ronald Reagan 1390 (1983) (“[B]ecause of the constitutional impediments contained in the doctrine of the separation of powers, I understand” that the Chief Justice and the congressional members of the bicentennial commission “will be able to participate only in ceremonial or advisory functions of the Commission, and not in matters involving the administration of the act.”); Constitutionality of Resolution Establishing United States New York World’s Fair Commission, 39 Op. Att’y Gen. 61, 62 (1937) (Cummings, Att’y Gen.) (objecting to a congressional commissioner that would plan and appoint commissioners for the New York World’s Fair as “amount[ing] to an unconstitutional invasion of the province of the Executive”); Participation of Members of Congress in the Ronald Reagan Centennial Commission, 33 Op. O.L.C. 193, 195 (2009) (“Ronald Reagan Commission”) (identifying constitutional concerns with commissions with members from multiple branches engaging in responsibilities that “extend beyond providing advice or recommendations . . . or participating in ceremonial activities”); Memorandum for the Attorney General from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Congressional Incursions into Areas of Executive Responsibility at 3–4 (Oct. 31, 1984) (“Congressional Incursions”) (describing the Department’s repeated “strong[]” opposition to congressional creation of commissions with legislative and executive branch appointees as “inconsistent with the tripartite system of government established by the Framers of our Constitution” (internal quotation marks omitted)). 2 Executive Branch Participation in the Cyberspace Solarium Commission We recognized that the Commission, as a Legislative Branch entity, could benefit from participation of its Executive Branch members, but we advised that those members should carry out their advisory functions not as free agents, but as executive officers subject to supervision by their departments, and ultimately, the President. Because the Commission’s Executive Branch members represent the interests of the Executive Branch in performing their work, we advised that they should not provide independent statements in assessing the Commission’s work and that the commission members should not vote individually on the Commission’s final report or any of its subpoenas. The Commission’s report and its subpoenas were the official actions of a Legislative Branch entity. While the Executive Branch members could, in principle, have adopted and advanced common positions on those actions, the Commission’s procedures and the need to release its report promptly made it impracticable for them to do so. We therefore advised the Executive Branch officials not to vote, consistent with their accountability to the Executive Branch. We further construed statutory provisions providing for the Executive Branch to provide staff and office space to the Commission to be discretionary, rather than mandatory, because the separation of powers imposes constraints upon Congress’s ability to enlist the Executive’s staff and physical resources. Finally, we advised that the Commission’s Executive Branch members and staff were obliged to preserve Executive Branch confidentiality interests. We explained that they should evaluate requests for information in light of the accommodation principles at play when congressional committees request information and support from the Executive Branch, and in light of any executive privilege concerns, particularly given the classified nature of some of the Commission’s work, see FY 2019 NDAA § 1652(g)(3)(C), 132 Stat. at 2144. See, e.g., United States v. Am. Tel. & Tel. Co., 567 F.2d 121, 127 (D.C. Cir. 1977) (requiring each branch to “seek optimal accommodation through a realistic evaluation of [their respective] needs . . . in the particular fact situation”). Such obligations, however, do not mean that the Executive Branch officers could not accommodate the Commission’s legitimate interests in that regard, consistent with the assistance regularly provided by the Executive Branch to Congress. 3 44 Op. O.L.C. __ (Oct. 9, 2020) I. The FY 2019 NDAA established the Cyberspace Solarium Commission to gather evidence and prepare a report recommending a long-term strategy for defense against cyber attacks. Id. § 1652(a)(1), (f )(1)–(7), (k)(1), 132 Stat. at 2141–43, 2146. The Commission was modeled on President Dwight D. Eisenhower’s Cold War-era “Project Solarium,” which gathered three task forces of experts from public and private life to study strategies for guarding against a potential stockpiling of atomic weapons by the Soviet Union. 3 Congress directed the Cyberspace Solarium Commission “[t]o define the core objectives and priorities” of a national cyber-defense strategy, “weigh the costs and benefits of various strategic options,” “evaluate the effectiveness of the current national cyber policy,” and “consider possible structures and authorities that need to be established, revised, or augmented within the Federal Government” to successfully guard against cyber attacks. FY 2019 NDAA § 1652(f ), 132 Stat. at 2142–43. By statute, the Commission’s fourteen members included the Principal Deputy DNI, the Deputy Secretary of Homeland Security, the Deputy Secretary of Defense, the Director of the Federal Bureau of Investigation, and ten congressional appointees who could be members of Congress. Id. § 1652(a)(1)–(2), (b)(1), 132 Stat. at 2141. On some prior occasions, Congress at least purported to specify whether a hybrid commission of this sort should be considered legislative or executive. 4 But it did not do so here. See 164 Cong. Rec. S3927 (daily ed. June 13, 2018) (statement of Sen. Sasse, who had originally proposed an amendment to the FY2018 NDAA that would have created the Cyberspace Solarium Commission, see 163 Cong. Rec. S5674 (daily ed. Sept. 13, 2017)); see also Memorandum of Discussion at the 144th Meeting of the National Security Council, Wednesday, May 13, 1953, in Dep’t of State Pub. No. 9347, 15 Foreign Relations of the United States, 1952–1954 (Korea) 1012, 1016 (1984) (describing statement of President Eisenhower explaining the objectives of Project Solarium). President Eisenhower named the project after the White House solarium, where the idea was conceived. See William B. Pickett, Introduction: The Solarium Exercise of June 1953, in George F. Kennan and the Origins of Eisenhower’s New Look: An Oral History of Project Solarium 3 (William B. Pickett ed., 2004). 4 See, e.g., FY 2019 NDAA § 1051(a)(1)–(4), (b), 132 Stat. at 1962–63 (establishing an advisory commission “in the executive branch” with legislative and executive appointees to produce reports and recommendations on the national security uses of artificial intelligence and machine learning); Evidence-Based Policymaking Commission Act of 3 4 Executive Branch Participation in the Cyberspace Solarium Commission To carry out its mission, the Commission was authorized to exercise investigative functions. The Commission was able to hold hearings, take testimony, receive evidence, and issue subpoenas requiring witness testimony and document production. Id. § 1652(g)(1)(A), 132 Stat. at 2143; see also id. § 1652(g)(1)(B), 132 Stat. at 2143. The statutes governing contempt of Congress were made applicable to failures to comply with the Commission’s subpoenas. Id. § 1652(g)(1)(C), 132 Stat. at 2143. Separately, executive agencies were instructed, “to the extent authorized by law, [to] furnish such information, suggestions, estimates, and statistics” as are required for the Commission to carry out its duties. See id. § 1652(g)(3)(A)–(B), 132 Stat. at 2143–44; see also, e.g., id. § 1652(g)(1)(A), 132 Stat. at 2143 (authorizing the Commission, “for the purpose of carrying out the provisions of this section,” to require by subpoena testimony, books, records, correspondence, and documents as the Commission or “designated subcommittee or designated member considers necessary”). In addition, the statute specified that the Secretary of Defense “shall” provide the Commission with nonreimbursable administrative services, funds, staff, and facilities, id. § 1652(g)(4)(A), 132 Stat. at 2144, and that the DNI and the heads of other executive agencies “may” give the Commission administrative services and staff, id. § 1652(g)(4)(B), (C), 132 Stat. at 2144. See also id. § 1652(h)(1)(B), 132 Stat. at 2144 (authorizing the detailing of federal staff to the Commission). The Commission was required to memorialize its recommendations in a “final report” to the congressional defense, intelligence, and homeland security committees, as well as to the Secretary of Defense, the Secretary of Homeland Security, and the DNI. Id. § 1652(k)(1), 132 Stat. at 2146. Within 60 days of receiving the report, the Secretaries and the DNI were each to “submit to the congressional intelligence committees and the 2016, Pub. L. No. 114-140, §§ 2, 3(a), 4, 130 Stat. 317, 317–18 (2016) (establishing an advisory commission “in the executive branch” with legislative and executive appointees to produce recommendations for amending federal agency data infrastructure, database security, and statistical protocols); see also Matthew E. Glassman & Jacob R. Straus, Cong. Research Serv., R40076, Congressional Commissions: Overview, Structure, and Legislative Considerations 10 (2017) (“In some instances, the establishment clause will identify the commission as ‘established in the legislative branch.’”). 5 44 Op. O.L.C. __ (Oct. 9, 2020) congressional defense committees an assessment” of the report, including “such comments” as each of the three officials “considers appropriate.” Id. § 1652(l), 132 Stat. at 2146. The original deadline for the report was September 1, 2019, see id. § 1652(k)(1), 132 Stat. at 2146, but Congress extended the deadline to April 30, 2020. National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, § 1639, 133 Stat. 1198, 1750 (2019). On March 11, 2020, the Commission made the report available to the public, in anticipation of its formal submission to Congress in April. See Cyberspace Solarium Commission, Final Report (Mar. 2020), https://www.solarium.gov (last visited Oct. 9, 2020). The Commission was to terminate within 120 days of the report’s formal submission to the congressional defense and intelligence committees. See FY 2019 NDAA § 1652(k)(2)(A), 132 Stat. at 2146. During that 120-day period, the Commission was able to wind down its activities and provide testimony to Congress on its report. Id. § 1652(k)(2)(B), 132 Stat. at 2146. II. A truly hybrid commission with Executive and Legislative Branch appointees creates separation of powers concerns because it lacks accountability to any single branch of government. As the Supreme Court has recognized, “[t]he Constitution sought to divide the delegated powers of the new federal government into three defined categories, legislative, executive and judicial, to assure, as nearly as possible, that each Branch of government would confine itself to its assigned responsibility.” INS v. Chadha, 462 U.S. 919, 951 (1983); see also, e.g., Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 329 (1816) (“The object of the constitution was to establish three great departments of government; the legislative, the executive, and the judicial departments.”); Hayburn’s Case, 2 U.S. (2 Dall.) 408, 410 n.* (1792) (reporting the decision of the Circuit Court for the District of New York, including Chief Justice Jay and Justice Cushing, which had observed “[t]hat by the Constitution of the United States, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose, encroachments on either” (emphasis added)). In our tripartite constitutional structure, any commission performing federal functions must reside within a single one of the three branches of government. 6 Executive Branch Participation in the Cyberspace Solarium Commission A. This Office has long expressed constitutional concerns about hybrid commissions, which occupy a “no-man’s land between . . . two branches,” with commission members who risk being unaccountable to either of the political branches. Memorandum for John R. Bolton, Assistant Attorney General, Office of Legislative and Intergovernmental Affairs, from Douglas W. Kmiec, Deputy Assistant Attorney General, Office of Legal Counsel, Re: H.R. 3345, 99th Cong. 1st Sess., at 2 (Apr. 9, 1986); see also Congressional Incursions at 3–4 (describing such commissions as “inconsistent with the tripartite system of government established by the Framers of our Constitution” and detailing the Department’s repeated “strong[]” opposition to congressional creation of hybrid commissions (internal quotation marks omitted)). 5 The problems with hybrid commissions are two-fold. First, an entity with members representing two branches is not fully accountable to any governmental authority. The constitutional separation of powers is designed to diffuse power among different federal actors to better protect liberty. See, e.g., Bowsher v. Synar, 478 U.S. 714, 721 (1986) (recognizing that the “purpose of separating and dividing the powers of government” was to “‘diffus[e] power the better to secure liberty’” (alteration in original) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring))). But “[t]he diffusion of power carries with it a diffusion of accountability.” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 497 (2010). To ensure that the government remains responsive to the people, the constitutional separation of powers “requires that each branch maintain its separate identity, and that functions and responsibilities be clearly assigned among the separate branches, so that each can be held accountable for its actions.” Memorandum for William Bradford Reynolds, Assistant Attorney General, Civil Rights Division, from Ralph W. Tarr, Acting Assistant Attor5 See, e.g., Statement on Signing a Bill Establishing a National Commission on Agricultural Trade and Export Policy (Aug. 30, 1984), 2 Pub. Papers of Pres. Ronald Reagan 1211, 1211–12 (1984) (urging that the commission “be composed either entirely of members selected by the legislative branch, if it is to serve primarily legislative functions, or entirely of members appointed by the President, if it is to serve the executive branch”); Statement on Signing the Patent Law Amendments Act of 1984 (Nov. 9, 1984), 2 Pub. Papers of Ronald Reagan 1816, 1817 (1984) (same). 7 44 Op. O.L.C. __ (Oct. 9, 2020) ney General, Office of Legal Counsel, Re: S. 519, 99th Cong. 1st Sess., the “Federal Employee Anti-Sex Discrimination in Compensation Act of 1985” at 2 (July 2, 1985). “The creation of a Commission that is not clearly legislative, judicial, or executive, tends to erode” this foundational restraint. Common Legislative Encroachments on Executive Branch Authority, 13 Op. O.L.C. 248, 251 (1989) (“Common Legislative Encroachments”) (internal quotation marks omitted). When a blended executive-legislative body ultimately reports to neither political branch, the public is left unable to determine where the blame for “a pernicious measure . . . ought really to fall.” See Free Enter. Fund, 561 U.S. at 498 (internal quotation marks omitted) (quoting The Federalist No. 70, at 476 (Alexander Hamilton) (J. Cooke ed. 1961)). And “[w]hen citizens cannot readily identify the source of legislation or regulation that affects their lives, Government officials can wield power without owning up to the consequences.” Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 57 (2015) (Alito, J., concurring). Because a branchless entity would undermine the accountability that the separation of powers demands, the Constitution requires that every entity exercising the authority of the federal government be accountable to a single branch. Second, once the nature of a hybrid commission is determined, that constitutional location determines the roles that its executive and legislative members may play. To the extent that a commission exercises executive powers, for instance, agents of the Legislative Branch may not participate, even in an advisory capacity. See, e.g., Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276 (1991) (“If the power is executive, the Constitution does not permit an agent of Congress to exercise it.”); Buckley v. Valeo, 424 U.S. 1, 139 (1976) (per curiam) (holding that congressional appointees may “perform duties only in aid of those functions that Congress may carry out by itself, or in an area sufficiently removed from the administration and enforcement of the public law”); FEC v. NRA Political Victory Fund, 6 F.3d 821, 827 (D.C. Cir. 1993) (observing that even in a purely advisory role, the presence of ex officio congressional agents on an Executive Branch commission violated the separation of powers); see also The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 160 n.95 (1996) (“Separation of Powers”) (“[D]esignating a member of Congress to serve on a commission with any executive func8 Executive Branch Participation in the Cyberspace Solarium Commission tions, even in what was expressly labeled a ceremonial or advisory role, may render the delegation of significant governmental authority to the commission unconstitutional as a violation of the anti-aggrandizement principle.” (citing NRA Political Victory Fund, 6 F.3d at 827)); Common Legislative Encroachments, 13 Op. O.L.C. at 251–52. At the same time, if a commission is an arm of the Legislative Branch, then Executive Branch members may participate in an advisory role but, in that capacity, they do not cease to be subject to the supervision of the President. See Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2197 (2020) (“The entire ‘executive Power’ belongs to the President alone,” and “lesser [executive] officers must remain accountable to the President, whose authority they wield.”); see also, e.g., Constitutionality of the Direct Reporting Requirement in Section 802(e)(1) of the Implementing Recommendations of the 9/11 Commission Act of 2007, 32 Op. O.L.C. 27, 31 (2008) (“Direct Reporting Requirement”) (“[S]tatutes that interfere with the President’s ability to supervise, directly or through subordinate officials, the Executive Branch’s communications with Congress raise serious constitutional concerns.”). As discussed below, the structure of the Cyberspace Solarium Commission presented a number of concerns about the roles Executive Branch members may play in the Commission, in light of its constitutional location. Thus, the threshold question in evaluating the structure of a hybrid commission is determining the branch in which the entity resides. This approach finds consistent support in our precedents. In Status of the Commission on Railroad Retirement Reform for Purposes of the Applicability of Ethics Laws, 13 Op. O.L.C. 285 (1989) (“Railroad Retirement Reform Commission”), we considered the Railroad Retirement Reform Commission, whose members were appointed variously by the President, congressional leaders, and the Comptroller General (an agent of Congress). Id. at 286. The commission was charged with submitting a report to Congress and to the President with legislative recommendations about the railroad retirement system. Id. In view of the statute’s dual-reporting requirement, the Commission was “vested with ‘[o]bligations to two branches,’” but the “presence of such dual obligations” did not prevent its “characterization . . . as part of one branch.” Id. at 287 n.5 (quoting Bowsher, 478 U.S. at 746 (Stevens, J., concurring in the judgment)). The commission’s obligation to report to Congress “without any prior review” by the Executive Branch would raise “serious constitutional questions,” if 9 44 Op. O.L.C. __ (Oct. 9, 2020) the commission fell within the Executive Branch. See id. at 287–88. We thus construed the statute’s dual-reporting requirement “as contemplating that the Commission’s report would be prepared principally for Congress’ benefit” and concluded that the commission should be deemed to fall outside the Executive Branch for purposes of laws governing conflicts of interest and financial disclosure. See id. at 289–90. We reached a similar conclusion with respect to the National Gambling Impact Study Commission, an advisory commission with six members appointed by Congress and three by the President. Applicability of 18 U.S.C. § 208 to National Gambling Impact Study Commission, 23 Op. O.L.C. 29, 29 (1999) (“National Gambling Impact Study Commission”). We emphasized that the commission performed only “informationgathering and advisory functions, which need not be performed by the executive branch.” Id. at 30 n.2. And we concluded that, because a majority of the commissioners were congressionally appointed and the commission operated like a congressional committee, it was “part of the legislative branch.” See id. at 30 n.2, 35. In yet another opinion, we considered the location of the Native Hawaiians Study Commission in order to determine whether the Hatch Act applied to its chairman. See Applicability of the Hatch Act to the Chairman of the Native Hawaiians Study Commission, 6 Op. O.L.C. 292, 294 (1982) (“Native Hawaiians Study Commission”). The commission there consisted solely of presidential appointees, but it had been initially funded by Senate appropriations and had been “established to advise Congress rather than the President.” Id. We recognized that “a commission may have dual responsibilities—as in this case, advisory to Congress, factfinding and reporting to the President—without necessarily losing its character as an executive entity.” Id. While finding that the structure presented a “difficult question,” we concluded “that the circumstances viewed as a whole point[ed] to the Commission as an entity within the Executive Branch.” Id. at 295. Finally, on several occasions, this Office has considered the status of commemorative commissions, which have “representatives of multiple branches participating in ceremonial events,” but which also must exercise executive authority in the course of administering the events in question. Ronald Reagan Commission, 33 Op. O.L.C. at 195. Those commissions have included members from the Legislative and Judicial Branches, 10 Executive Branch Participation in the Cyberspace Solarium Commission and in light of “ample historical precedent,” we have accepted that “[i]t is not unconstitutional for such commissions to perform advisory functions.” Id. at *2 & n.1. But to the extent that these commissions perform executive functions—like “exercising operational control over a statutorily prescribed national commemoration”—then the participation of nonexecutive agents must end. Id. at *3. Thus, in 1984, we advised that the Commission on the Bicentennial of the Constitution, whose members included the Chief Justice and congressional leaders, should establish an “executive committee composed of all non-advisory members of the Commission . . . legally responsible for discharging the purely executive functions of the Commission” to accommodate separation of powers concerns. Appointments to the Commission on the Bicentennial of the Constitution, 8 Op. O.L.C. 200, 207 (1984) (“Bicentennial Commission”). In 2010, we took the same course in advising that the Reagan Centennial Commission—a majority of which comprised members of Congress—could carry out the executive functions of planning and developing commemorative activities to honor President Reagan only by establishing a separate executive committee consisting solely of the Executive Branch members of the commission. See Memorandum for Robert F. Bauer, Counsel to the President, from Martin S. Lederman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Administration of the Ronald Reagan Centennial Commission at 3–4 (May 7, 2010) (“Lederman Memo”). Following the approach of Bicentennial Commission, 8 Op. O.L.C. at 207, we construed the statute itself as “limit[ing] the exercise of the purely executive functions of the Commission to the five presidentially appointed commissioners” who would constitute the executive committee. Lederman Memo at 3 (internal quotation marks and citation omitted). With this executive committee in place, we advised that the full commission, with its majority of congressional appointees, was “limited to giving advice.” Ronald Reagan Commission, 33 Op. O.L.C. at 200. In so doing, we essentially divided the Reagan Centennial Commission into two entities—one executive (consisting solely of Executive Branch representatives) and one advisory (consisting of both Executive Branch and Legislative Branch representatives). We therefore resolved the separation of powers concerns presented by such a ceremonial commission by cabining the functions of the full commission in a manner consistent with its implicit location in the Legislative Branch. See also Administration of the John F. Kennedy Centennial Commission, 11 44 Op. O.L.C. __ (Oct. 9, 2020) 41 Op. O.L.C. __, at *1 (Jan. 10, 2017) (recommending that the John F. Kennedy Centennial Commission adopt the same “structure used to carry out the functions of the Ronald Reagan Centennial Commission”). Previous practice therefore buttresses our conclusion: Every seemingly hybrid commission still must be situated in one and only one branch of our tripartite constitutional structure. 6 B. We turn then to the Cyberspace Solarium Commission. Generally, “[t]he status within the government of an office created by statute is a matter of statutory interpretation.” Railroad Retirement Reform Commission, 13 Op. O.L.C. at 285. But constitutional constraints prevent Congress from assigning purely executive duties to a legislative entity. See Buckley, 424 U.S. at 138–39. Because the FY 2019 NDAA did not specify where the Commission would reside, we consider the statutory context, the method of appointment of its members, and the powers that it exercises. Here, the relevant statutory indicia suggested that the Commission was located within the Legislative Branch. 6 See also Statement on Signing the National Defense Authorization Act for Fiscal Year 2020, 2019 Daily Comp. Pres. Doc. No. 880, at 3 (Dec. 20, 2019) (observing with respect to a number of provisions that “establish[ed], reauthorize[d] or add[ed] to the authorities of hybrid commissions or boards,” including the Cyberspace Solarium Commission, that commissions with Legislative Branch and Executive Branch appointees “separate from the executive branch” are simply “legislative branch entities”); Statement on Signing the John S. McCain National Defense Authorization Act for Fiscal Year 2019, 2018 Daily Comp. Pres. Doc. No. 533, at 2 (Aug. 13, 2018) (“FY 2019 NDAA Signing Statement”) (“While I welcome the creation of this commission, these legislative branch appointees preclude it, under the separation of powers, from being located in the executive branch. My Administration accordingly will treat the commission as an independent entity, separate from the executive branch.”); Statement on Signing the National Defense Authorization Act for Fiscal Year 2017, 2016 Daily Comp. Pres. Doc. No. 863, at 3 (Dec. 23, 2016) (“Because the commission contains legislative branch appointees, it cannot be located in the executive branch consistent with the separation of powers.”); Statement on Signing the Alyce Spotted Bear and Walter Soboleff Commission on Native Children Act, 2016 Daily Comp. Pres. Doc. No. 695, at 1 (Oct. 14, 2016) (“While I welcome the creation of this Commission, it cannot be located in the executive branch consistent with the separation of powers because it includes legislative branch appointees[.]”). 12 Executive Branch Participation in the Cyberspace Solarium Commission Multiple factors supported this determination. First, the Commission’s membership structure suggested that it was located in the Legislative Branch, because “the majority of the Commissioners were congressionally appointed,” National Gambling Impact Study Commission, 23 Op. O.L.C. at 30 n.2; see also FY 2019 NDAA § 1652(b), 132 Stat. at 2141. The presence of members of Congress on the Commission counseled strongly against treating it as an Executive Branch entity. See NRA Political Victory Fund, 6 F.3d at 827 (holding that two congressional agents could not serve, even as non-voting members, on the eight-member Federal Election Commission). Members of Congress may neither serve as officers of the United States, see U.S. Const. art. I, § 6, cl. 2, nor appoint such officers, see id. art. II, § 2, cl. 2. But even for commissions whose members lack the authority of officers of the United States—either because the Legislative Branch appointees perform only advisory roles or the commission itself lacks significant authority under the laws of the United States— locating a commission in the Executive Branch if Congress appoints a majority of the members would raise concerns of congressional aggrandizement and the blurring of the separation of powers. See, e.g., Separation of Powers, 20 Op. O.L.C. at 160 n.95. The fact that members of Congress appoint a majority of the members of the Commission thus counseled strongly in favor of the conclusion that it is a Legislative Branch entity. Second, the nature of the Commission’s powers supported this conclusion. The Commission’s principal duty was to prepare a report that “define[d] the core objectives and priorities” of national cyber policy and “consider[ed] possible structures and authorities that need to be established, revised, or augmented within the Federal Government” to defend the United States from cyber-attacks. FY 2019 NDAA § 1652(f )(1), (7), 132 Stat. at 2142–43. The Commission authored and submitted the report to Congress without any review from the Executive Branch, other than the four Executive Branch commissioners, who made up a minority of the Commission’s fourteen members. Id. § 1652(k)(1), 132 Stat. at 2146. The procedure for publication and assessment of the Commission’s report also suggested that the report was prepared “principally for Congress’ benefit,” see Railroad Retirement Reform Commission, 13 Op. O.L.C. at 289. While the FY 2019 NDAA required submission of the Commission’s final report to several Executive Branch officials in addition to multiple congressional committees, see FY 2019 NDAA § 1652(k)(1), 132 Stat. at 13 44 Op. O.L.C. __ (Oct. 9, 2020) 2146, the executive officials were provided with the report merely to facilitate their own further responses to Congress. See id. § 1652(l), 132 Stat. at 2146. Both sets of recommendations—the Commission’s report, and the analysis of the executive officials required to respond—were therefore ultimately for Congress’s consideration. And any testimony or briefing on the Commission’s report was also to be provided to Congress, see id. § 1652(k)(2)(B), 132 Stat. at 2146, again indicating that its recommendations were directed toward the Legislative Branch. In this way, the Commission was designed to “function[] much as a congressional committee does when conducting an investigation or drafting a legislative proposal based on the information it has gathered.” National Gambling Impact Study Commission, 23 Op. O.L.C. at 35. The Commission exercised no purely executive powers. Indeed, the Commission was expressly given the subpoena power of an agent of Congress; the FY 2019 NDAA authorized the Commission to issue subpoenas and provided that any actions in contempt of its subpoenas should be governed by the statutory procedures applicable to contempt of Congress, 2 U.S.C. §§ 192–194. FY 2019 NDAA § 1652(g)(1)(C). We have previously advised that “[i]f Congress intends [a] Commission to be part of the Executive Branch,” then we would expect it to exercise the kind of civil enforcement power given to executive agencies, rather than the contempt powers of Congress. See Proposed Commission on Deregulation of International Ocean Shipping, 7 Op. O.L.C. 202, 204 (1983). The nature of the Commission’s subpoena powers further confirmed that it was a legislative entity. Finally, the FY 2019 NDAA exempted the Commission from the Federal Advisory Committee Act (“FACA”) and Freedom of Information Act (“FOIA”) requirements that typically apply to Executive Branch advisory commissions. FY 2019 NDAA § 1652(m), 132 Stat. at 2146. Ordinarily, “any committee” established by statute “in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government” is subject to FACA. 5 U.S.C. app. § 3(2). FOIA likewise applies to most executive agencies. 5 U.S.C. § 552; id. § 551(1). Congress’s choice to exempt the Commission from these requirements, while not dispositive, bore upon the interpretive question. Notably, in the very same act in which it created the Commission, Congress expressly located another advisory commission “in the executive branch” without excepting it from FACA and FOIA requirements. FY 14 Executive Branch Participation in the Cyberspace Solarium Commission 2019 NDAA § 1051(a) (National Security Commission on Artificial Intelligence). That contrast provided an additional indication of the Commission’s location in the Legislative Branch. For the reasons set forth above, we concluded, and advised, that the Commission should be viewed as a Legislative Branch entity. III. Our conclusion that the Commission was a Legislative Branch entity had separation of powers implications for the service of its Executive Branch members. 7 We advised that the Executive Branch officials serving on the Commission should act with one unified voice, subject to executive supervision, in advising the Commission. Although robust participation on a commission through the provision of advice, information, and staff and office resources is perfectly appropriate when that work promotes comity and is consistent with the interests of the Executive Branch, we advised that individual executive members should not participate in formal acts of the legislative commission, such as individualized voting or signing the Commission’s final report; that they must preserve Executive Branch confidentiality interests when advising the Commission; and that they should comply with commission requests to share Executive Branch resources, outside of the statutory process, only to the extent that the provision of resources would be consistent with Executive Branch interests. The appointment by Congress of executive branch officers to a legislative entity presents a different constitutional question from when Congress vests the President with the power to appoint officials to serve on legislative commissions. See, e.g., Removal of Members of the Commission on Federal Laws for the Northern Mariana Islands, 7 Op. O.L.C. 95, 102 (1983) (noting that, “[e]ven if we grant that the Commission is an arm of Congress,” the President could still remove its members at will if Congress chose to vest appointment power in the President). Here, we addressed the separation of powers concerns that arose when a statute directed presidential appointees with pre-existing executive branch ties to serve ex officio in a position within the Legislative Branch. We did not disturb the long-standing historical practice of the President’s appointing individuals to offices serving the entire Legislative Branch. See, e.g., Constitutionality of Bill Creating an Office of Congressional Legal Counsel, 1 Op. O.L.C. Supp. 384, 389 (1976); see also 31 U.S.C. § 703(a)(1) (“The Comptroller General and Deputy Comptroller General are appointed by the President, by and with the advice and consent of the Senate.”); 2 U.S.C. § 1801(a)(1) (“The Architect of the Capitol shall be appointed by the President by and with the advice and consent of the Senate for a term of 10 years.”). 7 15 44 Op. O.L.C. __ (Oct. 9, 2020) The Executive Branch officers did not serve on the Commission as independent actors, but as representatives of one Executive Branch, which is subject to ultimate supervision by the President. See U.S. Const. art. II, § 1, cl. 1 (vesting the President with “[t]he executive Power” (emphasis added)); id. art. II, § 3 (charging the President with the duty to “take Care that the laws be faithfully executed”); see also, e.g., Seila Law, 140 S. Ct. at 2197 (“The entire ‘executive Power’ belongs to the President alone”); Myers v. United States, 272 U.S. 52, 135 (1926) (highlighting that the President “may properly supervise and guide” subordinate officers “in order to secure . . . unitary and uniform execution of the laws”); Printz v. United States, 521 U.S. 898, 922 (1997) (“The insistence of the Framers upon unity in the Federal Executive—to ensure both vigor and accountability—is well known.”); Clinton v. Jones, 520 U.S. 681, 712 (1997) (Breyer, J., concurring) (“[The Founders] sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many.”); Direct Reporting Requirement, 32 Op. O.L.C. at 31 (“[S]tatutes that interfere with the President’s ability to supervise, directly or through subordinate officials, the Executive Branch’s communications with Congress raise serious constitutional concerns.”). Therefore, in serving on a Legislative Branch entity, Executive Branch members on the Commission remained agents of the Executive Branch. We addressed a somewhat analogous situation in connection with the detail of Executive Branch law enforcement agents to congressional committees. There, we observed that when executive officials work for a congressional committee, “[t]he pertinent issue . . . is whether the President’s ability to supervise his subordinates in the performance of their executive branch functions is unconstitutionally impaired.” Detail of Law Enforcement Agents to Congressional Committees, 12 Op. O.L.C. 184, 186 (1988) (“Detail of Law Enforcement Agents”). And we warned that congressional details potentially place executive officials “in the difficult position of serving two masters with conflicting interests—the legislative and executive branches.” Id. at 184. To counteract these concerns, we advised that the Executive Branch members on detail could perform “only non-law enforcement, advisory functions,” and even while performing those functions, they should “faithfully defend the interests of the execu16 Executive Branch Participation in the Cyberspace Solarium Commission tive branch” and preserve the confidentiality of Executive Branch information. See id. at 187–88. So too here. In practice, the principle that Executive Branch officials must advance Executive Branch interests limited their participation in the Commission’s work in several ways. First, the Executive Branch officials charged with assessing the Commission’s final report were advised do so collectively, or at least in coordination with each other, rather than providing independent assessments in their separate capacities. And because members of the Commission were expected to cast their votes individually, we advised that the Executive Branch members should not vote on the final report or on commission decisions to issue subpoenas in the Commission’s investigative capacity. Although the Executive Branch members could theoretically have adopted and advanced common positions with respect to matters on which they were expected to vote, the need for the Commission to release its report promptly made it impracticable for them to engage in the kinds of consultations necessary to do so. This limitation, however, did not necessarily preclude Executive Branch members from robust participation in the formulation of the report. Just as Executive Branch officials may perform “advisory or research” functions while on detail to a congressional committee, Detail of Law Enforcement Agents, 12 Op. O.L.C. at 186, they could advise and provide information, expertise, and substantial resources to the Commission. But such input had to be consistent with the Executive Branch’s understanding of its own interests. And any contributions to, and assessments of, the Commission’s report had to be subject to the supervision of others in the Executive Branch. Cf. Separation of Powers, 20 Op. O.L.C. at 174–75 (objecting to requirements that reports be simultaneously submitted to the Executive and Legislative Branches, because such requirements “increase congressional leverage on the President and other officials of the executive branch” and thus potentially “interfer[e] with the President’s fulfillment of his obligations under the Take Care Clause”). We therefore advised that the Executive Branch members could serve an advisory role and articulate a uniform position on the Commission’s work, but they should not formally vote or sign the legislative commission’s final report. We further advised that the Executive Branch officers assigned the statutory role of providing assessments of the Commission’s report to Congress, see FY 2019 NDAA § 1652(l), 132 Stat. at 2146, did not act in their individual capacities, but rather remained subject to the 17 44 Op. O.L.C. __ (Oct. 9, 2020) ordinary mechanisms by which the President supervises and coordinates the position of the Executive Branch. In addition, we advised that all Executive Branch members and staff should maintain the confidentiality of Executive Branch information when sharing their information and expertise with the Commission. Executive agencies should treat a legislative commission’s requests for confidential Executive Branch information in the same way that the Executive Branch generally responds to requests for information from Congress. Like a congressional committee, the Commission was empowered to obtain the information necessary for its work through hearings, voluntary requests, and subpoenas. See id. § 1652(g)(1)(A)–(C), 132 Stat. at 2143. Executive agencies should similarly seek to accommodate legitimate requests consistent with the established accommodation process. See, e.g., Am. Tel. & Tel. Co., 567 F.2d at 127 (requiring each branch to “seek optimal accommodation through a realistic evaluation of [their respective] needs . . . in the particular fact situation”); Attempted Exclusion of Agency Counsel from Congressional Depositions, 43 Op. O.L.C. __, at *19 (May 23, 2019) (describing “the constitutional balance” of providing Congress with information essential to oversight while preserving Executive Branch constitutional prerogatives); Authority of the Department of Health and Human Services to Pay for Private Counsel to Represent an Employee Before Congressional Committees, 41 Op. O.L.C. __, at *5 n.6 (Jan. 18, 2017); Congressional Requests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 159 (1989); see also Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020) (referring to this practice with approval and noting ruefully that “Congress and the President [had] maintained this tradition of negotiation and compromise—without the involvement of this Court—until the present dispute”). And while the Commission may have had a legitimate need to obtain classified or sensitive national security information for its work, its requests needed to be measured like any other Legislative Branch request for sensitive information, and they remained subject to the President’s ultimate control over such information. See, e.g., Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988). Finally, Executive Branch entities were advised that they should treat the FY 2019 NDAA’s provisions requiring them to provide administrative assistance to the Commission (in the form of resources such as office space, computer facilities, and staff ) as discretionary. Congress, of course, may appropriate funds to itself for the performance of its duties 18 Executive Branch Participation in the Cyberspace Solarium Commission and the support of its agents. The anti-aggrandizement principle of the separation of powers, however, prohibits a congressional body from using any means other than the enactment of legislation to order the Executive Branch to execute legislation. See Bowsher, 478 U.S. at 733 (“[O]nce Congress makes it choice in enacting legislation, its participation ends.”). As a Legislative Branch entity, the Commission could not be given the power to compel Executive Branch departments to provide office space, administrative support, and supplies on a nonreimbursable basis, see FY 2019 NDAA § 1652(g)(4), 132 Stat. at 2144. 8 See, e.g., Letter for Heidi Heitkamp & Lisa Murkowski, U.S. Senate, from Stephen E. Boyd, Assistant Attorney General, Office of Legislative Affairs, Re: Implementation of the Alyce Spotted Bear and Walter Soboleff Commission on Native Children at 2 (Aug. 10, 2018) (“In order to avoid a constitutional issue, the Department will treat as permissive the directives to provide administrative support and detailees[.]”). Accordingly, we advised that the Executive Branch should provide the Commission with Executive Branch resources—such as office space, access to computer networks, and e-mail addresses—only if it concluded that providing access to a resource would sufficiently advance Executive Branch interests to outweigh any potential risks from the resulting commingling of executive and legislative resources. More specifically, we advised that the sharing of Executive Branch computer networks or the use of Executive Branch e-mail addresses to conduct commission business should be done in a manner that would not 8 Several of the FY 2019 NDAA provisions providing for commission support used the mandatory “shall,” rather than the discretionary “may.” See, e.g., FY 2019 NDAA § 1652(g)(3)(B), 132 Stat. at 2144 (providing that executive entities “shall, to the extent authorized by law, furnish” information to the Commission (emphasis added)); id. § 1652(g)(4)(A), 132 Stat. at 2144 (“The Secretary of Defense shall provide to the commission, on a nonreimbursable basis, such administrative services, funds, staff, facilities, and other support services as are necessary for the performance of the Commission’s duties[.]” (emphases added)); id. § 1652(g)(4)(D), 132 Stat. at 2144 (“The Commission shall receive the full and timely cooperation of any official, department, or agency of the United States Government whose assistance is necessary, as jointly determined by the [Commission] co-chairs[.]” (emphases added)). But these provisions nonetheless authorized officials to exercise some judgment in determining whether certain resources would be made available, based on an analysis of whether the support was “necessary” or “authorized by law.” To the extent that those provisions denied such discretion, they were required to yield to constitutional separation of powers principles. 19 44 Op. O.L.C. __ (Oct. 9, 2020) suggest an Executive Branch imprimatur. And if administrative assistance was to take the form of detailing personnel to the Commission, executive agencies were encouraged to consider whether the Executive Branch benefits to be gained by the personnel’s service to the Commission would be sufficiently significant to outweigh any potential confidentiality or accountability considerations raised by their service to a legislative entity. See Detail of Law Enforcement Agents, 12 Op. O.L.C. at 185 (providing that, in detailing law enforcement agents to congressional committees on a voluntary basis, the Department should consider “whether the benefits to be gained by the law enforcement agencies are sufficiently extraordinary to outweigh the separation of powers and ethical concerns raised by the detail”). IV. For the reasons set forth above, we concluded that the Commission had to be located within one branch of the tripartite federal constitutional structure. In addition, we advised that the statutory structure and context indicated that the Commission was most appropriately viewed as a Legislative Branch entity. Accordingly, as a constitutional matter, the Executive Branch members of the Commission were limited in the ways they could participate in the Commission’s work; they were required to perform their commission responsibilities as Executive Branch representatives, consistent with the Executive Branch’s confidentiality and policy interests. STEVEN A. ENGEL Assistant Attorney General Office of Legal Counsel 20

Write a legal research memo on the following topic.

Novem ber 3, 1977 77-62 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL Richard Helms’ Eligibility Under 5 U.S.C. § 8314 To Receive an Annuity or Retired Pay This memorandum opinion is to confirm our oral opinion that Rich­ ard Helms, former Director of the Central Intelligence Agency (CIA) and an ambassador, will not be barred by 5 U.S.C. § 8314 from receiv­ ing an annuity or retired pay on the basis of his Federal service by virtue of his plea o f nolo contendere to tw o counts of violating 2 U.S.C. §192 in connection with appearances before the Senate Foreign Rela­ tions Committee on February 7 and M arch 6, 1973. Based on staff discussions and our reading of the relevant transcripts, our understanding of the circumstances surrounding Mr. Helms’ testi­ mony is as follows: He appeared before the committee in open session on February. 5, 1973, in connection with the committee’s consideration of his nomina­ tion as Ambassador to Iran. He was then requested to appear in execu­ tive session on February 7 so that the committee could question him in three areas: recently published allegations that the CIA had provided training to local police forces; CIA involvement with the Watergate affair;* and CIA relations w ith multinational corporations, particularly regarding the International Telephone & Telegraph Corporation (ITT) and the 1970 election that brought Salvador Allende to power in Chile. A t the February 7 hearing, Mr. Helms was asked questions relating, inter alia, to domestic activities of the CIA, the relationship of W ater­ gate defendants to the CIA, the Agency’s Domestic Contact Service, and the C IA ’s relationship to other Government agencies. However, the charge of a violation of 2 U.S.C. § 192 in connection wih the February 7 hearing stems from Mr. Helms’ refusal to answer questions relating to his knowledge of the C IA ’s attempts in September and October of 1970 to foment a coup in Chile, his knowledge of the C IA ’s financing o f groups working against Allende’s accession to the Presi­ dency of Chile, and his knowledge of the CIA’s efforts to influence the 252 actions of certain U.S. multinational corporations to create economic pressures in order to decrease the likelihood of Allende’s accession. The March 6 hearing was held in large part for the benefit of the committee’s Subcommittee on Multinational Corporations, which was studying the relationship of multinational corporations to the foreign policy of the United States, although Chairman Fulbright indicated that much of the questioning would be of interest to members of the full committee as well. Mr. Helms’ testimony related primarily to CIA activities in connection with the 1970 Chilean election, including: con­ tacts between CIA and ITT officials; the nature of U.S. policy in 1970 regarding the election; whether fomenting a coup or applying economic pressures through private companies would have been consistent with U.S. policy relating to Chile; whether the Forty Committee had author­ ized certain activities to influence the outcome of the election; and generally whether the CIA had taken measures to prevent Allende’s election.1 Mr. Helms is charged with failing accurately and fully to answer (and thereby refusing to answer) questions relating to his knowledge of these matters. Section 8314(a) of Title 5, United States Code, provides that a Feder­ al annuity or retired pay may not be paid to an individual (or his survivor or beneficiary) who: refused or refuses, or knowingly and willfully failed or fails, to appear, testify, or produce a book, paper, record, or other docu­ ment, relating to his service as an employee, before a Federal grand jury, court of the United States, court-martial, or congres­ sional committee, in a proceeding concerning— (1) his past or present relationship with a foreign govern­ ment; or (2) a matter involving or relating to an interference with or endangerment of, or involving or relating to a plan or attempt to interfere with or endanger, the national security or defense of the United States. In our opinion, the ineligibility imposed by this section is inapplicable to Mr. Helms’ refusal to testify at the 1973 hearings. I Although its language is a bit ambiguous, we believe that § 8314 is on its face inapplicable in the present situation. Neither committee hearing could reasonably be characterized as a proceeding concerning Mr. Helms’ “past or present relationship with a foreign government.” Fairly read, the quoted phrase seemingly refers to disloyal or subversive relationships with foreign governments, not contacts that may arise in the course of the individual’s official duties. See Part II and III, infra. We are unaware of any suggestions that a purpose of either the Febru­ 1 There were also several questions relating to Cuba and certain other CIA operations, but the Chilean election was the major topic o f discussion at the March 6 hearing. 253 ary 7 or the M arch 6 hearing was to examine Mr. Helms’ loyalty to the United States or any subversive relationships he may have had with foreign governments. The second type of proceeding mentioned in §8314 is that concern­ ing an “interference with o r endangerment of . . . the national security or defense of the United States.” Read broadly, the quoted phrase could conceivably be read to cover the present situation. The question­ ing of Mr. Helms did relate to the national security and defense of the United States in a general way; intelligence and other operations of the CIA inevitably pertain to national security and defense. Moreover, the primary focus of the questioning, especially during the March 6 hear­ ing, concerned an important element of U.S. foreign policy, i.e., the Nation’s interest and involvement in the Chilean election, and the participation of IT T and other U.S. corporations in the formulation and implementation of that policy. In other contexts, the phrase “national security” has been interpreted to encompass ordinary foreign policy considerations as well as the national defense. See, e.g., Executive Order 11652, §1 (classification Executive order). Finally, the committee’s overall concern with the effect o f multinational corporations on U.S. foreign policy could be thought to relate to adverse effects on national security or defense in a broad sense, if such corporations were found to have an overall weakening effect on the Nation’s position. Thus, it could be argued that the hearings related to a possible “interference with . . . the national security” to the extent that the committee sought to determine whether IT T unduly altered U.S. policy in Chile from what it might otherwise have been or whether the CIA ignored or transgressed and thereby “interfered” with U.S. policy regarding Chile. However, we believe that this would be a strained reading of § 8314 in the present setting. When the term “interference” is read in conjunc­ tion with the word “endangerment,” it would seem that § 8314(a)(2), like § 8314(a)(1), should be read to refer to activities of a disloyal or subversive nature, and ones that may have a relatively imminent and readily discernible adverse impact on officially established policy. A c­ cordingly, those provisions effectively complement one another. The first refers to proceedings in which the individual’s own loyalty is in question, and the second refers to actions or plans involving other people (and perhaps the individual as well) or of which the individual has knowledge. Thus, subsection (a)(2) would not on its face appear to apply to the two hearings at which Mr. Helms testified, which involved an inquiry into the nature and implementation o f U.S. foreign policy in a given instance and the influence of private persons in formulating the policy, without any apparent suggestion of disloyalty on the part of Mr. Helms or others or of possible attempts to subvert U.S. policy. 254 II This somewhat limited interpretation of 5 U.S.C. § 8314 is reinforced by reference to other sections of the entire subchapter of Title 5, of which § 8314 is a part. Under 5 U.S.C. § 8312, an individual is ineligible to receive a pension or annuity if he has been convicted of certain enumerated offenses. The listed offenses all pertain to espionage, sabo­ tage, treason, subversion, or disloyalty.2 In addition, pension and retirement disability is also imposed if the individual is convicted of perjury in falsely denying the commission of any of the offenses just mentioned or in falsely testifying with respect to his service as a Government officer or employee in connection with a matter involving “an interference with or endangerment of, or involv­ ing or relating to a plan or attempt to interfere with or endanger, the national security or defense of the United States.” 5 U.S.C. § 8312(b)(3).3 The existence of these two provisions in the perjury subsection strongly suggests that false testimony regarding “interfer­ ence” or “endangerment” involving others must also pertain to activi­ ties or plans that are tinged with disloyalty or subversion. This reading of the perjury provisions is entirely consistent with our interpretation of the comparable refusal-to-testify provisions in § 8314. Finally, § 8313 imposes pension and annuity ineligibility if the indi­ vidual is under indictment for any of the offenses named in § 8312, and, with knowledge of the indictment, remains outside of the United States for more than 1 year. As can be seen, 5 U.S.C. §§ 8312-8314 reflect a comprehensive effort to deny a pension or annuity to a Federal official who commits acts or offenses that endanger the national security or hinder the Government’s ability to learn about such acts or offenses committed by the individual or by others. In view of Congress’ careful specification in § 8312 of only those criminal offenses that involve espionage, sabotage, treason, subversion, or disloyalty, we believe that the sanctions in § 8314 for refusals to testify must apply only where the proceedings involved relate to activities of a similar nature engaged in by the individual himself or by others. As mentioned above, neither of Mr. Helms’ appearances involved an inquiry into such activities. Ill Whatever remaining doubt there may be as to the proper scope of § 8314 is, in our view, dispelled by reference to the legislative history of the section. The predecessor to the present § 8314 was first enacted 2 The offenses include gathering and transmitting defense information to injure the United States or to aid a foreign nation; sabotage; treason; advocating overthrow of the Government; activities affecting the morale, loyalty, or operation of the armed services;, service against the United States; violations of the Atomic Energy Act with intent to injure the United States or to aid a foreign nation; and communication o f classified information. § 8314(b) (1)—(2). 5 The quoted phrase is identical to that in § 8314(a)(2). 255 as § 2(a) of P.L. 83-769, 68 Stat. 1142, popularly known as the “Hiss A ct.” The principal purpose of the Act was to prevent Alger Hiss from receiving retirement benefits when he reached age 62. Hiss v. Hampton, 338 F. Supp. 1141, 1149-53 (D.D.C. 1972) (three-judge court). In 1954, Mr. Hiss was about to be released from confinement following his conviction for perjury in connection with a grand jury investigation of his possible violation of espionage and other laws arising from his alleged transmission of confidential State Department documents to a Communist agent. The documents involved were “of such a nature that even at the comparatively late day of their disclosure some could not for security reasons safely be made public . . . .” Id. at 1147, quoting United States v. Hiss, 185 F. 2d 822, 828 (2d Cir. 1950). There was widespread public outcry at the possibility that Mr. Hiss might receive an annuity and Congress responded by passing P.L. 83-769.4 Thus, it is clear that the predecessor o f the present § 8314 was part of an Act the primary purpose of which was to bar the payment of an annuity to a person convicted of perjury in connection with an inquiry into alleged activities of a distinctly disloyal nature. Our intepretation of the lan­ guage of § 8314 is therefore consistent with Congress’ original purpose. However, Public Law 83-769, as enacted in 1954, swept more broad­ ly than was necessary to accomplish this relatively limited purpose. The original A ct also provided for the denial of annuities to persons who committed any other offense related to the performance of their official duties. This resulted in the denial of valuable benefits to persons con­ victed o f relatively minor offenses, such as petty theft. See, e.g., H.R. Rep. No. 541, 87th Cong., 1st Sess., 1 (1959); S. Rep. No. 862, 87th Cong., 1st Sess., 1-3. To correct this perceived injustice, Congress in 1961 greatly restricted the coverage of Public Law 83-769 to eliminate the additional ineligibility sanction imposed on those who had commit­ ted offenses that had no bearing on loyalty or national security. P.L. 87-299, 75 Stat. 646. See, Hiss v. Hampton, 338 F. Supp., at 1152. It was at that time that Congress limited the specific offenses that give rise to ineligibility under §8312 to those involving espionage, sabotage, sub­ version, disloyalty, and the like, as discussed earlier in this memoran­ dum. These changes were specifically designed to limit the application of the overall A ct to situations within the original primary purpose of the Act, Le., to reach A lger Hiss and those in a comparable position. Hiss v. Hampton, supra, at 1151-53. See, generally S. Rep. No. 862, 87th Cong., 1st Sess., 1-3, 11 (1961); H.R. Rep. No. 541, 87th Cong., 1st Sess., 1-2 (1961); S. Rep. No. 1544, 86th Cong., 2d Sess., 1-2 (1960); S. Rep. No. 144, 86th Cong., 1st Sess., 2, 7 (1959); H.R. Rep. No. 258, ,86th Cong., 1st Sess., 3 (1959); Hearings on H.R. 4601 and Related Bills 4 Congress’ purpose of denying an annuity to Mr. Hiss was ultimately thwarted. The court held in Hiss v. Hampton th at the denial o f an annuity was intended as a penalty and that the law was therefore unconstitutional ex post facto legislation as applied to Mr. Hiss. 256 before the House Committee on Post Office and Civil Service, 86th Cong., 1st Sess. 2 (1959); 105 Cong. Rec. 5831-33 (1959). This clear expression of congressional intent, and the specific crimi­ nal offenses identified by Congress in narrowing the Act in order to be consistent with its original intent, lend strong support to our interpreta­ tion that § 8314 reaches only refusals to testify in proceedings relating to the employee’s loyalty or immediate threats to the national security of a subversive nature. Indeed, the relevant committee reports describe the present § 8314(a) as prohibiting annuities or retired pay: to persons refusing, on grounds of self-incrimination, to testify or produce documents, in proceedings relating to loyalty, or with respect to their relations with foreign governments. This continues present law, except as to offenses not involving loyalty. S. Rep. No. 862, at 7; H.R. Rep. No. 541, at 5. [Emphasis added.]5 See, also H.R. Rep. No. 541, at 2-3; Hiss v. Hampton, supra, at 1153 (referring to the 1961 Act as restoring benefits to those who committed “non-treasonous” offenses); Garrott v. United States, 340 F. 2d 615, 620 (Ct. Cl. 1965) (referring to § 2 of the 1961 Act, which included the present § 8314, as covering “subversive acts and associations”). In our view, the legislative history clearly confirms that §8314 is intended to apply only where the proceeding in which the individual refuses to testify concerns the individual’s own loyalty or his knowl­ edge of activities or plans that pose a serious threat to national secu­ rity—and principally a breach of security, such as that involved in the Hiss case. As such, it is inapplicable in the present situation involving Mr. Helms. Finally, it should be noted that §8314 is penal in nature, Hiss v. Hampton, supra, at 1153, and penal statutes are traditionally construed narrowly. The Comptroller General applied this principle o f narrow construction to the original Hiss Act, concluding that there is no reason why the A ct should be interpreted to apply where it does not expressly do so. 41 Comp. Gen. 62, 65 (1961); 35 Comp. Gen. 302, 303 (1955). Thus, there is no reason in the present situation to extend §8314 beyond its evident primary purpose in order to reach the present case. John M. H armon Assistant Attorney General Office o f Legal Counsel “ These committee reports provide some basis for arguing that §8314 applies only where the refusal to testify is based on Fifth Amendment grounds, as was true with § 2(a) of the 1954 act. In view of our conclusion here, there is no need to address this issue. 257

Write a legal research memo on the following topic.

Novem ber 3, 1977 77-62 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL Richard Helms’ Eligibility Under 5 U.S.C. § 8314 To Receive an Annuity or Retired Pay This memorandum opinion is to confirm our oral opinion that Rich­ ard Helms, former Director of the Central Intelligence Agency (CIA) and an ambassador, will not be barred by 5 U.S.C. § 8314 from receiv­ ing an annuity or retired pay on the basis of his Federal service by virtue of his plea o f nolo contendere to tw o counts of violating 2 U.S.C. §192 in connection with appearances before the Senate Foreign Rela­ tions Committee on February 7 and M arch 6, 1973. Based on staff discussions and our reading of the relevant transcripts, our understanding of the circumstances surrounding Mr. Helms’ testi­ mony is as follows: He appeared before the committee in open session on February. 5, 1973, in connection with the committee’s consideration of his nomina­ tion as Ambassador to Iran. He was then requested to appear in execu­ tive session on February 7 so that the committee could question him in three areas: recently published allegations that the CIA had provided training to local police forces; CIA involvement with the Watergate affair;* and CIA relations w ith multinational corporations, particularly regarding the International Telephone & Telegraph Corporation (ITT) and the 1970 election that brought Salvador Allende to power in Chile. A t the February 7 hearing, Mr. Helms was asked questions relating, inter alia, to domestic activities of the CIA, the relationship of W ater­ gate defendants to the CIA, the Agency’s Domestic Contact Service, and the C IA ’s relationship to other Government agencies. However, the charge of a violation of 2 U.S.C. § 192 in connection wih the February 7 hearing stems from Mr. Helms’ refusal to answer questions relating to his knowledge of the C IA ’s attempts in September and October of 1970 to foment a coup in Chile, his knowledge of the C IA ’s financing o f groups working against Allende’s accession to the Presi­ dency of Chile, and his knowledge of the CIA’s efforts to influence the 252 actions of certain U.S. multinational corporations to create economic pressures in order to decrease the likelihood of Allende’s accession. The March 6 hearing was held in large part for the benefit of the committee’s Subcommittee on Multinational Corporations, which was studying the relationship of multinational corporations to the foreign policy of the United States, although Chairman Fulbright indicated that much of the questioning would be of interest to members of the full committee as well. Mr. Helms’ testimony related primarily to CIA activities in connection with the 1970 Chilean election, including: con­ tacts between CIA and ITT officials; the nature of U.S. policy in 1970 regarding the election; whether fomenting a coup or applying economic pressures through private companies would have been consistent with U.S. policy relating to Chile; whether the Forty Committee had author­ ized certain activities to influence the outcome of the election; and generally whether the CIA had taken measures to prevent Allende’s election.1 Mr. Helms is charged with failing accurately and fully to answer (and thereby refusing to answer) questions relating to his knowledge of these matters. Section 8314(a) of Title 5, United States Code, provides that a Feder­ al annuity or retired pay may not be paid to an individual (or his survivor or beneficiary) who: refused or refuses, or knowingly and willfully failed or fails, to appear, testify, or produce a book, paper, record, or other docu­ ment, relating to his service as an employee, before a Federal grand jury, court of the United States, court-martial, or congres­ sional committee, in a proceeding concerning— (1) his past or present relationship with a foreign govern­ ment; or (2) a matter involving or relating to an interference with or endangerment of, or involving or relating to a plan or attempt to interfere with or endanger, the national security or defense of the United States. In our opinion, the ineligibility imposed by this section is inapplicable to Mr. Helms’ refusal to testify at the 1973 hearings. I Although its language is a bit ambiguous, we believe that § 8314 is on its face inapplicable in the present situation. Neither committee hearing could reasonably be characterized as a proceeding concerning Mr. Helms’ “past or present relationship with a foreign government.” Fairly read, the quoted phrase seemingly refers to disloyal or subversive relationships with foreign governments, not contacts that may arise in the course of the individual’s official duties. See Part II and III, infra. We are unaware of any suggestions that a purpose of either the Febru­ 1 There were also several questions relating to Cuba and certain other CIA operations, but the Chilean election was the major topic o f discussion at the March 6 hearing. 253 ary 7 or the M arch 6 hearing was to examine Mr. Helms’ loyalty to the United States or any subversive relationships he may have had with foreign governments. The second type of proceeding mentioned in §8314 is that concern­ ing an “interference with o r endangerment of . . . the national security or defense of the United States.” Read broadly, the quoted phrase could conceivably be read to cover the present situation. The question­ ing of Mr. Helms did relate to the national security and defense of the United States in a general way; intelligence and other operations of the CIA inevitably pertain to national security and defense. Moreover, the primary focus of the questioning, especially during the March 6 hear­ ing, concerned an important element of U.S. foreign policy, i.e., the Nation’s interest and involvement in the Chilean election, and the participation of IT T and other U.S. corporations in the formulation and implementation of that policy. In other contexts, the phrase “national security” has been interpreted to encompass ordinary foreign policy considerations as well as the national defense. See, e.g., Executive Order 11652, §1 (classification Executive order). Finally, the committee’s overall concern with the effect o f multinational corporations on U.S. foreign policy could be thought to relate to adverse effects on national security or defense in a broad sense, if such corporations were found to have an overall weakening effect on the Nation’s position. Thus, it could be argued that the hearings related to a possible “interference with . . . the national security” to the extent that the committee sought to determine whether IT T unduly altered U.S. policy in Chile from what it might otherwise have been or whether the CIA ignored or transgressed and thereby “interfered” with U.S. policy regarding Chile. However, we believe that this would be a strained reading of § 8314 in the present setting. When the term “interference” is read in conjunc­ tion with the word “endangerment,” it would seem that § 8314(a)(2), like § 8314(a)(1), should be read to refer to activities of a disloyal or subversive nature, and ones that may have a relatively imminent and readily discernible adverse impact on officially established policy. A c­ cordingly, those provisions effectively complement one another. The first refers to proceedings in which the individual’s own loyalty is in question, and the second refers to actions or plans involving other people (and perhaps the individual as well) or of which the individual has knowledge. Thus, subsection (a)(2) would not on its face appear to apply to the two hearings at which Mr. Helms testified, which involved an inquiry into the nature and implementation o f U.S. foreign policy in a given instance and the influence of private persons in formulating the policy, without any apparent suggestion of disloyalty on the part of Mr. Helms or others or of possible attempts to subvert U.S. policy. 254 II This somewhat limited interpretation of 5 U.S.C. § 8314 is reinforced by reference to other sections of the entire subchapter of Title 5, of which § 8314 is a part. Under 5 U.S.C. § 8312, an individual is ineligible to receive a pension or annuity if he has been convicted of certain enumerated offenses. The listed offenses all pertain to espionage, sabo­ tage, treason, subversion, or disloyalty.2 In addition, pension and retirement disability is also imposed if the individual is convicted of perjury in falsely denying the commission of any of the offenses just mentioned or in falsely testifying with respect to his service as a Government officer or employee in connection with a matter involving “an interference with or endangerment of, or involv­ ing or relating to a plan or attempt to interfere with or endanger, the national security or defense of the United States.” 5 U.S.C. § 8312(b)(3).3 The existence of these two provisions in the perjury subsection strongly suggests that false testimony regarding “interfer­ ence” or “endangerment” involving others must also pertain to activi­ ties or plans that are tinged with disloyalty or subversion. This reading of the perjury provisions is entirely consistent with our interpretation of the comparable refusal-to-testify provisions in § 8314. Finally, § 8313 imposes pension and annuity ineligibility if the indi­ vidual is under indictment for any of the offenses named in § 8312, and, with knowledge of the indictment, remains outside of the United States for more than 1 year. As can be seen, 5 U.S.C. §§ 8312-8314 reflect a comprehensive effort to deny a pension or annuity to a Federal official who commits acts or offenses that endanger the national security or hinder the Government’s ability to learn about such acts or offenses committed by the individual or by others. In view of Congress’ careful specification in § 8312 of only those criminal offenses that involve espionage, sabotage, treason, subversion, or disloyalty, we believe that the sanctions in § 8314 for refusals to testify must apply only where the proceedings involved relate to activities of a similar nature engaged in by the individual himself or by others. As mentioned above, neither of Mr. Helms’ appearances involved an inquiry into such activities. Ill Whatever remaining doubt there may be as to the proper scope of § 8314 is, in our view, dispelled by reference to the legislative history of the section. The predecessor to the present § 8314 was first enacted 2 The offenses include gathering and transmitting defense information to injure the United States or to aid a foreign nation; sabotage; treason; advocating overthrow of the Government; activities affecting the morale, loyalty, or operation of the armed services;, service against the United States; violations of the Atomic Energy Act with intent to injure the United States or to aid a foreign nation; and communication o f classified information. § 8314(b) (1)—(2). 5 The quoted phrase is identical to that in § 8314(a)(2). 255 as § 2(a) of P.L. 83-769, 68 Stat. 1142, popularly known as the “Hiss A ct.” The principal purpose of the Act was to prevent Alger Hiss from receiving retirement benefits when he reached age 62. Hiss v. Hampton, 338 F. Supp. 1141, 1149-53 (D.D.C. 1972) (three-judge court). In 1954, Mr. Hiss was about to be released from confinement following his conviction for perjury in connection with a grand jury investigation of his possible violation of espionage and other laws arising from his alleged transmission of confidential State Department documents to a Communist agent. The documents involved were “of such a nature that even at the comparatively late day of their disclosure some could not for security reasons safely be made public . . . .” Id. at 1147, quoting United States v. Hiss, 185 F. 2d 822, 828 (2d Cir. 1950). There was widespread public outcry at the possibility that Mr. Hiss might receive an annuity and Congress responded by passing P.L. 83-769.4 Thus, it is clear that the predecessor o f the present § 8314 was part of an Act the primary purpose of which was to bar the payment of an annuity to a person convicted of perjury in connection with an inquiry into alleged activities of a distinctly disloyal nature. Our intepretation of the lan­ guage of § 8314 is therefore consistent with Congress’ original purpose. However, Public Law 83-769, as enacted in 1954, swept more broad­ ly than was necessary to accomplish this relatively limited purpose. The original A ct also provided for the denial of annuities to persons who committed any other offense related to the performance of their official duties. This resulted in the denial of valuable benefits to persons con­ victed o f relatively minor offenses, such as petty theft. See, e.g., H.R. Rep. No. 541, 87th Cong., 1st Sess., 1 (1959); S. Rep. No. 862, 87th Cong., 1st Sess., 1-3. To correct this perceived injustice, Congress in 1961 greatly restricted the coverage of Public Law 83-769 to eliminate the additional ineligibility sanction imposed on those who had commit­ ted offenses that had no bearing on loyalty or national security. P.L. 87-299, 75 Stat. 646. See, Hiss v. Hampton, 338 F. Supp., at 1152. It was at that time that Congress limited the specific offenses that give rise to ineligibility under §8312 to those involving espionage, sabotage, sub­ version, disloyalty, and the like, as discussed earlier in this memoran­ dum. These changes were specifically designed to limit the application of the overall A ct to situations within the original primary purpose of the Act, Le., to reach A lger Hiss and those in a comparable position. Hiss v. Hampton, supra, at 1151-53. See, generally S. Rep. No. 862, 87th Cong., 1st Sess., 1-3, 11 (1961); H.R. Rep. No. 541, 87th Cong., 1st Sess., 1-2 (1961); S. Rep. No. 1544, 86th Cong., 2d Sess., 1-2 (1960); S. Rep. No. 144, 86th Cong., 1st Sess., 2, 7 (1959); H.R. Rep. No. 258, ,86th Cong., 1st Sess., 3 (1959); Hearings on H.R. 4601 and Related Bills 4 Congress’ purpose of denying an annuity to Mr. Hiss was ultimately thwarted. The court held in Hiss v. Hampton th at the denial o f an annuity was intended as a penalty and that the law was therefore unconstitutional ex post facto legislation as applied to Mr. Hiss. 256 before the House Committee on Post Office and Civil Service, 86th Cong., 1st Sess. 2 (1959); 105 Cong. Rec. 5831-33 (1959). This clear expression of congressional intent, and the specific crimi­ nal offenses identified by Congress in narrowing the Act in order to be consistent with its original intent, lend strong support to our interpreta­ tion that § 8314 reaches only refusals to testify in proceedings relating to the employee’s loyalty or immediate threats to the national security of a subversive nature. Indeed, the relevant committee reports describe the present § 8314(a) as prohibiting annuities or retired pay: to persons refusing, on grounds of self-incrimination, to testify or produce documents, in proceedings relating to loyalty, or with respect to their relations with foreign governments. This continues present law, except as to offenses not involving loyalty. S. Rep. No. 862, at 7; H.R. Rep. No. 541, at 5. [Emphasis added.]5 See, also H.R. Rep. No. 541, at 2-3; Hiss v. Hampton, supra, at 1153 (referring to the 1961 Act as restoring benefits to those who committed “non-treasonous” offenses); Garrott v. United States, 340 F. 2d 615, 620 (Ct. Cl. 1965) (referring to § 2 of the 1961 Act, which included the present § 8314, as covering “subversive acts and associations”). In our view, the legislative history clearly confirms that §8314 is intended to apply only where the proceeding in which the individual refuses to testify concerns the individual’s own loyalty or his knowl­ edge of activities or plans that pose a serious threat to national secu­ rity—and principally a breach of security, such as that involved in the Hiss case. As such, it is inapplicable in the present situation involving Mr. Helms. Finally, it should be noted that §8314 is penal in nature, Hiss v. Hampton, supra, at 1153, and penal statutes are traditionally construed narrowly. The Comptroller General applied this principle o f narrow construction to the original Hiss Act, concluding that there is no reason why the A ct should be interpreted to apply where it does not expressly do so. 41 Comp. Gen. 62, 65 (1961); 35 Comp. Gen. 302, 303 (1955). Thus, there is no reason in the present situation to extend §8314 beyond its evident primary purpose in order to reach the present case. John M. H armon Assistant Attorney General Office o f Legal Counsel “ These committee reports provide some basis for arguing that §8314 applies only where the refusal to testify is based on Fifth Amendment grounds, as was true with § 2(a) of the 1954 act. In view of our conclusion here, there is no need to address this issue. 257

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Legal Obligations of the United States Under Article 33 of the Refugee Convention A rtic le 33 o f th e 1951 U nited Nations C onvention R elating to the Status o f R efugees d o es not im p o se any d o m estic legal obligations on the U n ited S tates w ith respect to individuals inter­ d icted o u tsid e its territory as part o f an effort to control m ass illegal m igration to the U nited S tates. December 12, 1991 M e m o r a n d u m O p i n i o n f o r t h e L e g a l A d v is e r D e p a r t m e n t o f S ta te We have reviewed your letter opinion dated December 11, 1991, in which you conclude that Article 33 o f the 1951 United Nations Convention Relat­ ing to the Status of Refugees (“Refugee Convention”) does not impose any dom estic legal obligations on the United States with respect to individuals interdicted outside its territory as part of an effort to control mass illegal migration to the United States. Letter for Timothy E. Flanigan, Acting As­ sistant Attorney General, Office o f Legal Counsel, from Edwin D. Williamson (Dec. 11, 1991) (“Williamson Letter”). For the reasons outlined in your letter and for the additional reasons discussed below, we concur in your conclusion.* The United States adheres to Articles 2 through 34 of the Refugee Con­ vention by virtue o f the Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223 (“the Protocol”), to which the United States acceded on November 1, 1968. The official English version of Article 33 provides in part: No Contracting State shall expel or return (“refouler”) a refu­ gee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular so­ cial group or political opinion. 19 U.S.T. at 6276. Article 33 thus imposes an obligation on the contracting * E d ito r's Note: Subsequent to the date o f this opinion, the Supreme Court reached the same conclu­ sion as this opinion in Sale v. Haitian Centers Council, Inc.t 509 U.S. 155 (1993). 86 parties not to “expel or return (“refouler”)” refugees under certain circumstances. The word “expel” in Article 33 clearly refers to the treatment to be af­ forded potential refugees found within a state’s territory. Paragraph 1 also uses the word “return,” followed by the French term “refouler.” As you note in your letter, the history behind the insertion of “refouler” in the Convention demonstrates that the representatives of the nations that negotiated the Con­ vention intended that the English word “return" not be construed so as to make the treaty applicable to persons outside the territory of a contracting state. W illiam son Letter at 3-5.' Because both “expel” and “return (“refouler”)” refer only to the treatment to be afforded individuals found within the territory of a contracting state, the Refugee Convention and the Protocol do not impose any legal obligation with respect to individuals in­ terdicted outside the United States. The Supreme Court, in its review of the legislative history of the United States’ accession to the Protocol, has also observed that the United States acceded to Article 33 based upon the view that Article 33 could be imple­ mented through the then-existing section 243(h) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h) (1976 ed.), and that section 243(h) ap­ plied only to deportation of refugees already in the United States. See INS v. Stevie, 467 U.S. 407, 415, 417-18 (1984). The legislative history of the Refugee Act o f 1980, Pub. L. No. 96-212, 94 Stat. 102, supports this view of Article 33: the House Committee Report states that the Refugee Convention was intended to “insure fair and humane treatment for refugees within the territory o f the contracting s t a t e s H.R. Rep. No. 608, 96th Cong., 1st Sess. 17 (1979) (emphasis added). Judge Edwards in Haitian Refugee Center v. Gracey, 809 F.2d 794 (D.C. Cir. 1987), concluded uneqivocally — and with specific reference to the Haitian interdiction program at issue here — that “Article 33 in and of itself provides no rights to aliens outside a host country’s borders.” Id. at 840 (Edwards, J., dissenting in part and concurring in part). The other two judges on the panel decided that the plaintiff lacked standing to challenge the interdiction program and decided the case on that ground, a decision from which Judge Edwards dissented. Neither of the judges in the majority, however, expressed any disagreement with or reservations about Judge Edwards’ analysis of the underlying merits issues, including his discussion of Article 33 and his conclusion that it provides no rights to aliens outside a state’s borders. We note, moreover, as an independent ground for our conclusion, that the Protocol by which the United States adhered to the Convention is not self­ executing for domestic law purposes. Accordingly, the Protocol itself does not create rights or duties that can be enforced by a court. 1 Your Department has also formally communicated to Congress its view that Article 33 extends only to persons who have gained entry into a territory of a contracting state. Haitian Detention and Interdiction: Hearing Before the Subcomm. on Immigration, Refugees, and International Law o f the House Comm, on the Judiciary, 101st Cong., 1st Sess 36-43 (1989) (statement o f Alan J. Kreczko, Deputy Legal Adviser, Department of State). 87 Under the Supremacy Clause of the Constitution, treaties made pursuant to the Constitution’s procedures are part of the “supreme Law of the Land U.S. Const, art. VI, cl. 2. Some treaties, however, merely impose obliga­ tions under international law that the United States, as a contracting party, m ust perform particular acts, without themselves creating any obligations under dom estic law. In such cases the international obligation must be “executed” through domestic legislation before the obligation becomes ef­ fectively the law o f the land. Thus, in Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829), C hief Justice Marshall recognized that not all treaties are self-executing: [A treaty] is, consequently, to be regarded in courts of justice as equivalent to an act o f the legislature, whenever it operates o f itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial depart­ ment; and the legislature must execute the contract before it can become a rule for the Court. See a lso Memorandum for Michael J. Matheson, Deputy Legal Adviser, De­ partment of State, from Ralph W. Tarr, Acting Assistant Attorney General, Office o f Legal Counsel at 4-5 (Mar. 19, 1985) (“Tarr Memorandum”). W hether a treaty is self-executing is controlled by the intent of the United States as a contracting party. S ee British Caledonian Airways Ltd. v. Bond, 665 F.2d 1153, 1160 (D.C. Cir. 1981); United States v. Postal, 589 F.2d 862, 876 (5th Cir.), cert, denied, 444 U.S. 832 (1979); Diggs v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976). “The parties’ intent may be apparent from the language of the treaty, or, if the language is ambiguous, it may be di­ vined from the circumstances surrounding the treaty’s promulgation.” Postal, 589 F.2d at 876. The language of the Protocol by which the United States adhered to the Refugee Convention demonstrates that the United States did not intend that the Convention, as adhered to, would be self-executing. In particular, Ar­ ticle III o f the Protocol provides that the signatories are to communicate to the United Nations the “laws and regulations which they may adopt to en­ sure the application of the present Protocol.” 19 U.S.T. at 6226. Cf. Postal, 589 F.2d at 876-77 (treaties that “expressly provide for legislative execu­ tio n ” are “uniform ly declared executory” and therefore require further legislative action to bring the treaty into effect). Moreover, such a provision would have been unnecessary if the Refugee Convention were self-executing. Cf. Protocol, art. VI(b), 19 U.S.T. at 6227 (any signatory with federal form o f government obligated to bring the articles of Refugee convention to 88 the notice of the constituent states if those articles come within the states’ exclusive legislative jurisdictions). Thus, the Protocol by its own terms plainly contemplates the need for implementing legislation by its signatories. Furthermore, the understanding of the President and the Senate in adopt­ ing the Protocol was that the United States’ obligations under the Refugee Convention, pursuant to the Protocol, would not be self-executing. Specifi­ cally, the President and Senate clearly believed that pre-existing domestic law governing refugees — which applied only to persons already in the United States — would suffice to implement the Refugee Convention and the Protocol.2 See also Stevie, 467 U.S. at 417-18. We also note that the Sec­ ond Circuit, the only circuit court to address the question directly has concluded that the Protocol is not self-executing. Bertraud v. Sava, 684 F.2d 204, 218-19 (2d Cir. 1982). Because the Protocol is not self-executing, its provisions cannot be en­ forced by a private right of action in a U nited States court.3 It is well-established that individuals may directly seek enforcement of a treaty’s provisions only when “the treaty . . . expressly or impliedly provides a private right of action.” Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C. Cir. 1984) (Bork, J., concurring), cert, denied, 470 U.S. 1003 (1985). See also H ead Money Cases, 112 U.S. 580, 598-99 (1884); Frolova v. Union o f Soviet Socialist Republics, 761 F.2d 370, 373 (7th Cir. 1985) (“if not implemented by appropriate legislation [treaties] do not provide the ba­ sis for a private lawsuit unless they are intended to be self-executing”); Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298 (3d Cir. 1979); Linder v. Calero Portocarrero, 747 F. Supp. 1452, 1462-63 (S.D. Fla. 1990); Haitian Refugee Cent. Inc. v. Gracey, 600 F. Supp. 1396, 1405-06 (D.D.C. 1985), a ff’d on other grounds, 809 F.2d 794 (D.C. Cir. 1987). A one-page opinion of this Office, and one sentence in another Office of Legal Counsel opinion, might be read to suggest that refugees interdicted on the high seas enjoy certain rights under the Protocol adopting the Refugee Convention. See Proposed Interdiction o f Haitian Flag Vessels, 5 Op. O.L.C. 242, 248 (1981) (“Individuals who claim that they will be persecuted . . . must be given an opportunity to substantiate their claims [under Article 33].”); Memorandum for the Associate Attorney General from Larry L. Simms, Deputy Assistant Attorney Genera], Office of Legal Counsel (Aug. 5, 1981) (“Those who claim to be refugees must be given a chance to substantiate 2 See, e.g., S. Exec. Doc K, 90th Cong., 2d Sess. III (1968) (message from Pres. Johnson) (“most refugees in this country already enjoy the protection and rights which the Protocol seeks to secure for refugees in all countries”); id. at VIII (report of secretary of State Rusk) (“[Article 33] is com parable to Section 243(h) of the Immigration and Nationality A c t. .. and it can be implemented within the adm in­ istrative discretion provided by existing regulations” ) (emphasis added); S. Exec. Rep. No. 14, 90th Cong., 2d Sess. 4 (1968) (testimony o f Laurence A. Dawson, State Dept, official) (“refugees in the United States have long enjoyed the protection and the rights which the protocol calls for"). ’ O f course, even were the Protocol deemed to be self-executing, the Protocol would need to be exam ­ ined to see if it conferred any legally enforceable rights upon individuals interdicted outside the terri­ tory o f the U nited States. See also Tarr Memorandum at 4 n.5. We have already concluded above that the Protocol does not confer any legally enforceable rights upon such individuals. 89 their claims [under Article 33].” ). Among other things, those memoranda did not address whether the Protocol adopting the Refugee Convention is self­ executing. To the extent that those memoranda could be read to suggest that Article 33, as adopted by the Protocol, imposes a judicially enforceable obli­ gation on the United States with respect to individuals interdicted beyond its territorial boundaries, those memoranda are incorrect. TIMOTHY E. FLANIGAN Acting Assistant Attorney General Office o f Legal Counsel 90

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Recovery of Interest on Advance Payments to State Grantees and Subgrantees Section 203 of the Intergovernm ental Cooperation Act exem pts both the states and their subgrantees from accountability for interest earned on federal grant funds pending their disbursem ent, and such interest may thus not be recovered by the federal governm ent. February 5, 1982 M EM ORANDUM OPINION FOR THE COUNSEL TO THE DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET This memorandum responds to your request that this Office advise you whether the federal government may recover interest actually accrued by state grantees and subgrantees on advance payments of grant funds. Section 203 o f the Intergovernmental Cooperation Act of 1968,42 U .S.C . § 4213 (1976), provides that “ [s]tates shall not be held accountable for interest earned on grant-in-aid funds, pending their disbursement for program purposes.” On the basis of this provision, prior opinions of the Office of Legal Counsel, and three recent decisions of the Com ptroller General interpreting that provision, we conclude that the federal government may not recover interest earned by state grantees and subgrantees on advances of federal grant-in-aid funds. I. Section 203 of the Intergovernmental Cooperation Act of 1968, 42 U .S .C . § 4213, which directs the scheduling of transfers of federal grant-in-aid funds to states, provides that transfers of grant funds be made as near as possible to the time of disbursem ent by the states, and exempts states1 from accountability for interest earned on these funds pending their disbursement. Section 203 provides: Scheduling of Federal transfers to the States Heads of Federal departments and agencies responsible for ad­ ministering grant-in-aid programs shall schedule the transfer of grant-in-aid funds consistent with program purposes and applica- 1 D ecisions of the C om ptroller G eneral have in the past required recipients o f federal g rants to return to the Treasury any interest earned on such grants prior to their use, unless C ongress has specifically precluded su ch a requirem ent. See 42 Com p. G en 289 (1962) and cases cited therein. 127 ble Treasury regulations, so as to m inim ize the time elapsing between the transfer of such funds from the United States Treas­ ury and the disbursement thereof by a State, whether such dis­ bursem ent occurs prior to or subsequent to such transfer of funds. . . . States shall not be held accountable for interest earned on g ra n t-in -a id funds, p en din g their disbursem ent fo r program purposes. 42 U .S .C . § 4213 (emphasis added). You have questioned the applicability of the exemption contained in § 203 to interest actually earned by state grantees in view of the A ct’s mandate that federal grant-in-aid funds not be transferred from the Treasury until such funds are ready for use by the state grantees, the effect of which would minimize the amount of interest accrued by the states. In addition, it is your position that even if § 203 does provide an exemption for interest earned by state grantees, the exemption does not extend to local governmental units which are secondary recipients of federal grant funds funnelled through the states. N otw ithstanding the Act’s purpose to discourage the transfer of federal grant funds to states in advance of the grantees’ program needs, we cannot ignore the clear language o f the A ct which exempts states from accountability for interest in the event that interest is earned prior to states’ disbursement of funds. Dec. Comp. G en. B - l 96794 (Feb. 2 4 ,1 9 8 1 ); 5 9 Comp. Gen. 218 (1980); Dec. Comp. Gen. B -171019 (Oct. 16, 1973); Rehnquist, Office of Legal Counsel, “ Recov­ ery o f Interest on Excessive C ash Balances of LEAA Funds Held by States and Cities” (Nov. 15, 1971 ).2 Moreover, while the question can be raised whether 2 In his 1971 o p in io n , then Assistant A ttorney G eneral R ehnquist gave a clear and concise account o f the exem ption provision co n tain ed in § 203 o f th e Act: O u r reading o f the legislative h isto ry concerning § 203 and the bro ad er objectives o f the Intergovernm ental Cooperation Act o f 1968 as w ell, leads us to [conclude] that Congress exem pted th e States from the burden o f accounting for interest on g rant funds to facilitate the new authorities for co m m ingling F ederal funds in the g en e ra l accounts of th e States and the new Treasury techniques such as the letter o f cred it and sight d ra ft procedures w h ich im plem ented the A ct. We do not read these, however, as support for the view that Congress intended to impose penalties on those States which accum ulated interest on deposited or invested funds and to require a forfeiture o f that interest O n the contrary, the [S enate and H ouse] reports em phasize the expectation that very little interest accum ulation is expected. It is clear to u s that this is because an im portant objective o f the legislation is to require the Federal G overnm ent to im pose such oversight controls as w ill result in a scheduling o f funds to the S tates and so prevent a n y long periods o f d isu se of funds w ith resulting buildups and accum ulation o f w indfalls. An overall legislative objective is clearly assistance to the States from the Federal Government. In its very title the A ct is described as a m easure to “ achieve the fullest cooperation * * * to im prove the adm inistration o f grants-in-aid to the States ” For these purposes, am ong others, the States were relieved o f a n u m b e r o f the duties w hich theretofore had b u rden ed the adm inistration o f the grant-inaid pro g ram s, such as the requirem ents for m aintaining funds in separate banks and the requirem ent o f accounting for any interest earned o n deposits or investm ents We w ould agree . . . that Congress never intended to p erm it a State “ to abuse agency and Treasury regulations by draw ing excessive am o u n ts o f cash for investm ent p ending disbursem ent and still be relieved o f having to account for th e interest earned on th e in v estm en t.'’ T he legislative history indicates that C ongress d id not intend that to happen because the Federal G overnm ent was expected to prevent it from happening by sp acin g the disbursem ent funds on the basis o f need. Perhaps the most persuasive argument against a plan to hold a State accountable fo r interest earned is the categorical provision in § 203 stating “States shall not be held accountable fo r interest earned on grant-in-aid funds, pending their disbursement fo r program purposes .” We do not fin d a C ontinued 128 this exemption applies to local governmental units which are subgrantees of the states, both this Office and the Com ptroller General have examined this issue, and neither has read § 203 to permit the federal government to recover interest earned by local governmental units receiving federal funds as subgrants from the states. See Dec. Comp. G en. B-196794 (Feb. 24, 1981); 59 Comp. Gen. 218 (1980); Dec. Comp. Gen. B—171019 (Oct. 16, 1973); Ulman, Office of Legal Counsel, “ Issue Raised by Conflicting Opinions Concerning Interest Earned on Grant Funds by Local Governments” (Mar. 12, 1974); Office of Legal Counsel, Internal Action M emorandum (Feb. 19, 1974). But see Rehnquist, Office of Legal Counsel (Nov. 15, 1971), supra. II. This Office first considered the applicability of the § 203 exemption to subgrantees of states receiving federal grant-in-aid funds in a 1971 opinion issued by Assistant Attorney General Rehnquist to the Administrator of the Law Enforcement Assistance Administration (LEAA). See Rehnquist, Office of Legal Counsel (Nov. 15, 1971), supra. In that opinion Assistant Attorney General Rehnquist noted that § 203 of the Act speaks only of relief to “ States,” a term which is defined in Section 102 of the Act as any of the several States of the United States, the District of Colum bia, Puerto Rico, any territory or possession of the United States, or any agency or instrumentality of a State, but does not include the governments of the political subdivisions c f the State. 42 U .S.C . § 4201(2) (emphasis added). Because local governmental units are not encom passed by this definition, he concluded that local governmental units receiving federal funds as subgrantees of the states were not exempt from the general requirement that interest earned on federal funds be returned to the United States Treasury: [D]espite the Congressional intention to discontinue “ future ap­ plication” of the interest accountability “ principle” (H. Rept. No. 1845, 90th C ong., Aug. 2, 1968) the specific mention of the States in § 203 without any express legislative relief to the cities and other local units leaves unchanged the general rule calling for continued accountability by the latter, whether funds are received directly or by subgrant from a State. Although we are not aware of any reason for the distinction in § 203 between “ States” and “ political subdivisions,” it nevertheless exists, and accordingly contradiction to that clear statement in the Act nor in its legislative history R ehnquist opinion at 5 - 6 (em phasis added) Because this Office has continued to m aintain the view s expressed in A ssistant A ttorney G eneral R ehnquist's 1971 opin io n , w hich are also consistent w ith subsequent decisions b y the C o m p troller G eneral, we do not find it necessary to re-analyze in this opinion the applicability o f § 203 to state grantees 129 we thin k that as a m atter of law the distinction must be m aintained. Rehnquist opinion at 7. In strictly construing the term “ State” in the Act without reference to the A ct’s legislative history, the Rehnquist opinion failed to distinguish local governmental units which receive grant-in-aid funds directly from the federal government from those which are secondary recipients of federal grant funds, receiving federal funds as subgrantees of the states. In view o f the A ct’s purpose to assist the states by facilitating the transfers o f federal grant funds, as well as by relieving the states of various administrative and accounting duties, we believe that this distinction is critical to the A ct’s implementation. As subsequent decisions of this Office3 and the Comptroller G eneral have m ade clear, a requirement that local governm ental units receiving federal grant funds as subgrantees of the states be held accountable for interest earned on these funds would necessarily require state grantees, in contravention of § 203, to be responsible for ascertaining and securing the interest earned by their local subgrantees. In the case of direct federal grants to local governmental units, however, state grant administrative m achinery is in no way implicated— in these cases, o f course, local grantees are directly accountable to the federal government for interest earned on federal grant funds prior to their use. S ee Dec. Comp. Gen. B-196794 (Feb. 24, 1981); 59 Comp. G en. 218 (Jan. 17, 1980); U lm an, Office of Legal Counsel, “ Issue R aised by Conflicting Opinions Concerning Interest Earned on Grant Funds by Local G overnm ents” (Mar. 12, 1974); Dec. Comp. Gen. B -171019 (Oct. 16, 1973). In 1973, the Com ptroller G eneral considered the issue of interest accountabil­ ity by subgrantees o f the states and concluded that “ political subdivisions receiving Federal grants-in-aid through State governments are entitled to retain moneys received as interest earned on such Federal funds.” Dec. Comp. Gen. B -1 7 1 0 1 9 at 1 (O ct. 16, 1973). In reaching this conclusion, the Comptroller G eneral noted that neither the language nor the legislative history of § 203 of the Intergovernm ental Cooperation A ct differentiates between grants which the states will disburse themselves and grants involving funds which the states will subgrant to local governm ents.4 The Com ptroller General stated: 1 See U lm a n , O ffice of Legal Counsel, “ Is su e Raised by C onflicting O p inions C oncerning Interest E arned on G ran t R inds by L ocal G o v ern m en ts’' (Mar 12, 1974) O n Mar. 12, 1974, A cting A ssistant A ttorney G eneral U lm an responded to a request by LEA A to resolve th e differences betw een the 1971 R ehnquist opinion an d a 1973 decision by th e C o m p tro lle r G eneral w hich concluded that local governm ental u nits receiving federal grant funds as sub g ran ts from th e states w ere perm itted to re ta in the interest ea rn e d on those funds. In his letter, U lman deferred to the ju d g m e n t o f th e C o m p tro lle r G eneral reg ard in g the proper interpretation o f § 203, noting that " th e m atter . involve[d] th e disp o sitio n o f funds in the settlem ent o f a public accoun t, a m atter w ithin [the C o m ptroller G en eral’s] official ju risd ic tio n . ” U lm a n , Office of L e g al C ounsel, supra at 3 See also Office o f Legal C o unsel. Internal A ction M em o ra n d u m (F eb 19. 1974) (discussing issues to be addressed in the Mar. 12, 1974, letter to LE A A ) 4 T h e C o m p tro lle r G eneral referred to a F eb . 19, 1969, m em orandum from the A ssistant G eneral C ounsel for E d ucation, D ep artm en t o f H ealth , Education a n d W elfare (H E W ) to the A ssistant C om m issioner for A dm inistra­ tio n . H EW , w hich also co n c lu d ed that the interpretation of § 203 that is m ost co n sisten t w ith the Intergovernm ental C o o p era tio n A c t’s p urposes and legislative h isto ry requires that all federal g rant funds transferred to states be ex em p t from in terest accountability, without reg ard to w hether the funds are further subgranted by the states: (T he la nguage o f § 203] quite literally instructs us not to hold a S tate agency accountable for interest earn ed on g ran t funds pending their disbursement. T h ere is n o exception to this instruction C ontinued 130 Thus, it seems clear to us that States are not to be held accountable for interest earned on any grant-in-aid funds pending their dis­ bursem ent, whether or not the States intend, or are required by the terms of the grant, to subgrant these funds. To hold otherwise would, of course, require the States to assume the burden of accounting for the presumably relatively small amounts of inter­ est which would be earned on these funds in contravention of the legislative intent behind the last sentence in section 203. Id. at 8. This analysis of § 203 was reaffirmed by the Comptroller General in 1980, with respect to /ton-governmental subgrantees of state recipients of federal grants. See 59 Comp. Gen. 218 (Jan. 17, 1980). The Com ptroller General concluded that “ the same rationale that justifies exempting governmental sub­ grantees from rem itting to the Federal grantor agency interest earned on Federal grant funds received from the States, applies equally to non-governmental sub­ grantees.” Id. Again in 1981, the Comptroller General reiterated his interpretation of § 203 as permitting subgrantees of federal grants to retain the interest earned on funds received by them through the states. See Dec. Comp. Gen. B -196794 (Feb. 24, 1981). The Com ptroller G eneral’s 1981 decision was prompted by a request from the Office of M anagement and Budget (OMB) to reconsider the current reading of § 203 in light of the difficulties that it poses for sound cash management by the various federal grantor agencies. OMB was, and continues to be, concerned that § 203 provides an incentive to states and their subgrantees to draw on their grant funds prematurely to accrue “ free” interest, and thereby frustrate the mandate of Treasury C ircular 10755 against excessive cash withdrawals. While the Com p­ for funds that ea rn interest pending their disbursem ent by a local educational agency, o r any o ther agency To depart from this plain reading o f § 203 w ould require som e clear indication o f a d ifferent legislative intent in its enactm ent. N o such indication is apparent. O n the contrary, as th e floor m anager o f the H ouse bill, M r R euss, pointed out— T he first substantive title— title II— calls for im proved adm inistration o f grants-in-aid to the States * * * In addition it w ould relieve the States from u nnecessary and outm oded accounting procedures now in effect and the m aintenance o f separate bank accounts w hile protecting the n g h t of the executive branch and the C om ptroller G eneral to audit those accounts R elief from “ unnecessary * * * accounting procedures” is consistent w ith suspension o f the rule requiring the S tates to account for interest earned on grant funds, regardless o f w hat agency o f the State may be in possession of those funds at the tim e that such interest accrues. The effect c f excluding political subdivisions from the term 'State' must be understood merely to withhold interest fo r - giveness in programs in which a local educational agency is directly accountable to the Federal Government. D ec C om p G en B -1 7 1 0 1 9 (O ct. 16, 1973) (em phasis added) 5 Treasury C ircular 1075 requires th a t1 Cash advances to a recipient organization shall be lim ited to the m inim um am ounts needed and shall be tim ed to be in accord only w ith the actual, im m ediate cash requirem ents o f the recipient organization in carry in g out the purpose of the approved program or project T h e tim ing an d am ount o f cash advances shall be as close as is adm inistratively feasible to the actual disbursem ents by the recipient organization for direct program costs and the proportionate share o f any allow able indirect costs 3 1 C .F R § 205 4 ( 1 9 7 8 ) See also S. R ep N o 29, 96th C ong , 2d S ess (1980) o n the S upplem ental A p p ro p n aC o n n n u ed 131 troller G eneral was sympathetic to the concerns expressed by OMB and indicated that § 203 is being reassessed in light of administrative changes that have taken place since the legislation was passed in 1968, he nevertheless concluded that [a]s long as section 203 rem ains in e f f e c t. . . we see no basis for changing our ruling even if this is an obstacle to better cash m anagem ent. However, we should point out that our decision does not preclude agencies from com plying with the three steps m entioned by the Senate Com m ittee on Appropriations, includ­ ing “ [in itiatin g immediate recovery action whenever recipients are found to have drawn excess cash, in violation of Treasury C ircular 1075.” S. Rep. No. 9 6 -8 2 9 , 96th C ong., 2d Sess. 14 (1980). T hus, the agencies should monitor their grantees draw of cash and recover any excess. Id. at 2. O ur own reading of § 203 of the Intergovernmental Cooperation Act o f 1968, in light o f its legislative history, supports the foregoing analyses of the Comp­ troller G eneral. W hile we are m indful of the position taken by this Office in the 1971 Rehnquist opinion, we believe that the A ct’s legislative history, and the accom panying statem ents of the A ct’s purposes, cannot support the narrow interpretation of “ State” accorded § 203 by that opinion. To exempt state grantees from the interest accountability requirement while requiring that they m onitor and collect interest accrued by their .jwbgrantees would reimpose the very adm inistrative and accounting burdens of which the Act was intended to relieve the states.6 Although the Rehnquist opinion did not appear to contemplate such a result, it nevertheless seem ed com pelled by its narrow reading of “ States” to distinguish federal grant funds which are disbursed by the states for state program m ing needs from those funds which are disbursed by the states to their political subdivisions for local program m ing needs. In view of the A ct’s overall legislative objective of assisting the states by improving the administration of grants-in-aid— including the facilitation of grant fund transfers, and relieving states o f the burdens of maintaining grant funds in separate bank accounts and accounting for interest earned o n deposits or investments— it would make little sense to im pose upon states th e far m ore difficult task of accounting for the tions and R escission B ill, 1980, directing all federal agencies to “ take im m ediate steps to assure com pliance w ith Treasury C ircu lar 1075“ b y (1) Review ing th e p erio d ic reports filed by recipients to ascertain w hether they are draw ing and holding cash in ex cess o f their cu rren t needs, (2) A uditing a sufficient number of recip ien t accounts to determ ine w h eth er they are filing accurate reports on cash m han d ; and (3) Initiating immediate recovery action whenever recipients arefo u n d to have drawn excess cash, in violation o f Treasury Circular 1075. S. R ep N o. 829 at 14 (em phasis added). 6 O f co u rse, th is burden w ould not be im p o se d on the states in cases w h ere federal grant funds are transferred directly from the federal g ran to r agencies to lo c al governm ental units, w ith o u t being funnelled through the states. A ll prior o p inions of th e C o m p tro lle r G eneral an d the Office of Legal C o u n sel, including the R ehnquist op in io n , are in agreem ent that in such ca ses, the local g ra n t recipients are responsible d irectly to the federal grantor agency, and are not ex em p t from in terest accountability b y operation o f § 203. 132 interest earnings of their subgrantees when the states themselves are exempt from accountability for their own earnings. Thus, we believe that, consistent with the purposes of the Act, § 203 is properly interpreted to exempt interest accountabil­ ity on all federal grant-in-aid funds that are transferred to the states, regardless of whether such funds are disbursed by the states for their own programming needs or subgranted to local governmental units. While we are sympathetic to the cash management concerns expressed by OMB, we believe that the Act clearly places the responsibility for implementing sound fiscal policies with respect to federal grant funds with the federal grantor agencies. Section 203 requires the heads of federal departments and agencies who are responsible for administering grant-in-aid funds to schedule the fund transfers in a m anner that is “ consistent with program purposes and applicable Treasury regulations, so as to minimize the tim e elapsing between the transfer of such funds from the United States Treasury and the disbursement thereof by a State. . . .” 42 U .S .C . § 4213. T h e o d o r e B. O l s o n Assistant Attorney General Office of Legal Counsel 133

Write a legal research memo on the following topic.

Obligation of Revolving Funds Requiring Reimbursement from Time-Limited Funds Under the Anti-Deficiency Act The Anti-Deficiency Act prohibits an agency from awarding a severable services contract that lasts longer than one year and obligates revolving funds that must be reimbursed with time-limited funds. The Anti-Deficiency Act violation caused by awarding such a contract is not undone by subsequently modifying the contract’s term so as not to exceed one year. October 21, 2013 MEMORANDUM OPINION FOR THE GENERAL COUNSEL GENERAL SERVICES ADMINISTRATION * The Anti-Deficiency Act prohibits “officer[s] or employee[s] of the United States Government” from “involv[ing] . . . [the] government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law.” 31 U.S.C. § 1341 (2006). You have asked whether an agency violates the Anti-Deficiency Act (codified at 31 U.S.C. §§ 1341–1342, 1349–1351, 1511–1519) (“ADA” or “Act”) when it awards a severable services contract with a performance period that exceeds one year and the contract obligates revolving funds that an agency has a legal obligation to reimburse with time-limited funds. 1 If we conclude that such an action violates the ADA, you have also asked whether an agency can cure the violation by modifying the contract so that the performance period lasts only one year. In federal appropriations law, services are considered “severable” if they are continuing and confer a benefit each time they are rendered. Section 3902(a) of title 41 of the U.S. Code allows a contract for severa* Editor’s Note: This is a revised version of an opinion issued on July 8, 2013. See infra note 7. 1 See Letter for Virginia A. Seitz, Assistant Attorney General, Office of Legal Counsel, from Kris E. Durmer, General Counsel, General Services Administration (Aug. 29, 2012) (“GSA Letter”). In preparing this opinion, we also considered views provided by the Department of Homeland Security. See Letter for Virginia A. Seitz, Assistant Attorney General, Office of Legal Counsel, from Audrey J. Anderson, Deputy General Counsel, Department of Homeland Security (Nov. 29, 2012) (“DHS Letter”). 78 Obligation of Revolving Funds Requiring Reimbursement from Time-Limited Funds ble services that obligates time-limited funds to extend beyond the period of availability of those funds, provided that the total length of the contract for such services does not exceed one year. 41 U.S.C. § 3902(a) (2006 & Supp. V 2012). By contrast, a contract that obligates only revolving funds would not generally be subject to this one-year limit. 31 U.S.C. § 1502(a). Thus, to resolve your first question, we must consider whether the statutory rule that contracts for severable services be limited to one year applies to contracts that obligate revolving funds in circumstances where an agency must reimburse those revolving funds with time-limited funds that are unavailable for obligation beyond a one-year period. In our view, it does. In such a case, the contract has the effect of obligating those timelimited funds for reimbursement in advance of an appropriation and thus violates the Anti-Deficiency Act. Id. § 1341. We also conclude that an agency cannot cure an ADA violation of this type by subsequently shortening the contract’s performance period. We recognize that an agency can cure the type of ADA violation that occurs when an expenditure is charged to the wrong account, so long as funds were legally available at the time of obligation. In the example you have described, however, no funds were legally available at the time of obligation to reimburse payments on a greater-than-one-year contract. In circumstances such as these, the violation can be limited but not cured. I. We begin by noting that the practice of this Office is to address only general legal questions having prospective application. We thus set forth and analyze the following information, such as the agreement between the Department of Homeland Security (“DHS”) and the General Services Administration (“GSA”) and the subsequent contractual arrangements and findings of GSA’s Office of the Inspector General, solely for illustrative purposes and to provide relevant context. We describe these contractual arrangements as they have been presented to us and do not make any factual findings or determinations regarding these specific contracts. GSA entered into a series of contractual arrangements that have led to your questions. In the American Recovery and Reinvestment Act of 2009 (“Recovery Act”), Congress designated $200 million for DHS to use in “planning, design, construction costs, site security, information technology infrastructure, fixtures, and related costs to consolidate the 79 37 Op. O.L.C. 78 (2013) Department of Homeland Security headquarters.” Pub. L. No. 111-5, div. A, tit. VI, 123 Stat. 115, 162 (2009). To implement DHS’s plan for a new, consolidated headquarters, DHS and GSA’s Northern Capital Region Public Buildings Service (“GSA-PBS”) entered into an agreement “provid[ing] GSA access to $198.9 million” of DHS’s Recovery Act funds to pay for various elements of the consolidation project (hereinafter “DHS-GSA Agreement”). See GSA Letter att. 1, at 2. 2 The Recovery Act provided that DHS’s funds were time-limited; after September 30, 2010, they would expire and no longer be available for obligation. See id. at 1; see also Recovery Act div. A, § 1603, 123 Stat. at 302. As part of the consolidation project, GSA-PBS sought to secure two contracts for severable services, which would ultimately be funded with the time-limited Recovery Act funds that GSA-PBS had authority to obligate. GSA Letter at 1–2. As noted, severable services are services that are continuing in nature, and from which a benefit is received each time the service is rendered, such as the maintenance of landscaping or repair work. 3 Severable services contracts funded with time-limited funds are in certain respects governed by rules different from those applicable to other types of contractual arrangements. For example, government contracts are generally governed by the “bona fide needs rule,” but there is a limited exception to that rule for severable services contracts. The bona fide needs rule provides that an agency generally may obligate appropriations that Congress makes available for a limited period of time only to pay for “bona fide needs” incurred during that period of availability. See 31 U.S.C. § 1502(a); 1 General Accounting Office, Principles of Federal Appropriations Law 5-11 (3d ed. 2004) (“Federal Appropriations Law”). For a service such as routine landscapThe DHS-GSA Agreement indicated that GSA would use the money to obtain nonseverable services, GSA Letter att. 1, at 1, but all agree that GSA ultimately entered into contracts to obtain severable services under the Agreement. We have not considered and do not address whether the DHS-GSA Agreement’s original characterization of the money as restricted to contracts for nonseverable services was erroneous or what the consequences of any such error would be. 3 In contrast, nonseverable, or entire, services are those for which the entire benefit is received at the time the service is completed, such as building construction or other projects that yield a final product. All agree that the relevant contracts here (between GSA’s agent—the Federal Acquisition Services component of GSA’s Northern Capital Region—and the third party contractors) were for severable services. 2 80 Obligation of Revolving Funds Requiring Reimbursement from Time-Limited Funds ing work, for example, the need arises when grass needs to be cut or hedges need to be trimmed; thus, an agency ordinarily could not enter into a contract for cutting or trimming that would occur after current funds cease to be available. Under a statutory exception, however, agencies may obligate time-limited appropriations for “contract[s] for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year if (without regard to any option to extend the period of the contract) the contract period does not exceed one year.” 41 U.S.C. § 3902. In other words, an agency could use Fiscal Year (“FY”) 2013 funds, available for obligation only during FY 2013, to enter into a landscaping contract that lasted into FY 2014, so long as the total contractual period did not exceed one year. To obtain the severable services contracts, GSA-PBS entered into an agreement with the Federal Acquisition Services component of GSA’s Northern Capital Region (“GSA-FAS”). GSA Letter att. 2. The agreement specified that GSA-FAS, acting on behalf of GSA-PBS, would acquire technology services from a contractor. Id. §§ B.2, B.6. GSA-FAS would pay the contractor’s charges upfront with money from the Acquisition Services Fund, a fund established by statute that GSA uses to procure services on behalf of other federal agencies. Id. §§ A.7, B.8, B.13; see 40 U.S.C. § 321(c). The Acquisition Services Fund is a revolving fund, meaning that it is both a receipt account and an expenditure account, such that collected receipts are available for expenditure without the need for further appropriations from Congress and without fiscal year limitation. 3 Federal Appropriations Law at 12-87, 12-88 (3d ed. 2008). The statute governing the use of the Acquisition Services Fund requires agencies for which GSA expends money from the fund either to pay into the fund in advance or to “prompt[ly] reimburse” the fund for expenditures made on their behalf. 40 U.S.C. § 321(d)(3). Consistent with this statutory requirement, the agreement between GSA-PBS and GSA-FAS provided that GSA-FAS would pay the contractor’s charges from the Acquisition Services Fund, and then GSA-PBS would reimburse GSA-FAS from the Recovery Act funds DHS had set aside for GSA-PBS’s use. GSA Letter att. 2, §§ B.8, B.12. The agreement made GSA-PBS “responsible for prompt payment of all billings” for reimbursement, set forth criteria for determining when billings would become delinquent, and established that delinquency in reimbursement could result in certain consequences 81 37 Op. O.L.C. 78 (2013) for GSA-PBS. Id. § A.7. The agreement also stated that “[GSA-FAS’s] acceptance of this document creates an obligation on the part of [GSAPBS].” Id. § B.18. Under the authority of its agreement with GSA-PBS, GSA-FAS awarded two task orders for severable services on September 30, 2010, the last day that Recovery Act funds were available for obligation. See GSA Letter at 2. At least one of the task orders indicated that the performance period would extend from September 30, 2010 to November 2011, longer than the one-year period permitted by the statute that allows agencies to use time-limited funds for severable services contracts crossing fiscal years. 4 Id. Midway through the contract, in the summer of 2011, GSAFAS modified the task orders so that the performance periods of both task orders ended on September 29, 2011, within a year after they began. Id. GSA’s Office of the Inspector General conducted a limited scope audit of both task orders and concluded, among other things, that the initial task orders violated both the bona fide needs rule and the Anti-Deficiency Act. 5 The Inspector General concluded that the revolving fund money GSA-FAS obligated by entering into the task orders had “the same purpose and time limitations” as the time-limited Recovery Act funds designated to reimburse the revolving fund. OIG Reports at 3. Because GSAPBS could not use Recovery Act funds to reimburse GSA-FAS for any charges incurred beyond the first twelve months of the contract, the Inspector General concluded that GSA-FAS had obligated money in advance of an appropriation and thereby violated the Anti-Deficiency Act. The Inspector General further concluded that GSA-FAS could not cure the violation by modifying the task orders’ performance periods so that they did not exceed one year. We understand that GSA believes that the performance period for the other task order never clearly extended beyond one year. GSA Letter at 2. We do not resolve that issue. 5 See Office of Inspector General, General Services Administration, Report No. A110024/Q/A/P12006, Limited Scope Audit of Task Order NP4700101050 Funded by the American Recovery and Reinvestment Act of 2009 (May 2, 2012); see also Office of Inspector General, General Services Administration, Report No. A110024/Q/A/P12007, Limited Scope Audit of Task Order NP4700101051 Funded by the American Recovery and Reinvestment Act of 2009 (May 2, 2012) (collectively, “OIG Reports”). Because the relevant content of the two reports is identical, citations to “OIG Reports” should be understood as citations to the specified pages in both reports. 4 82 Obligation of Revolving Funds Requiring Reimbursement from Time-Limited Funds II. As stated above, the Anti-Deficiency Act prohibits “officer[s] or employee[s] of the United States Government” from “involv[ing] . . . [the] government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law.” 6 31 U.S.C. § 1341. GSA agrees that an ADA violation occurs when an agency obligates time-limited funds by entering into a severable services contract that exceeds one year. See 1 Federal Appropriations Law at 5-40 (violation of bona fide needs rule can also violate the ADA). Because there is a statutory prohibition on obligating time-limited funds beyond their period of availability for greater-than-one-year severable services contracts, an agency entering into such a contract would have no funds legally available at the time of obligation to pay for the services it would receive beyond the one-year mark. So, for example, if a landscaping contract obligated FY 2013 funds for a period of time lasting into FY 2014, the FY 2013 funds would be legally available for the first twelve months of that contract. But at the end of that twelve months, FY 2013 funds would no longer be available. If the contract continued beyond that point, it would therefore have effectively obligated FY 2014 funds “before an appropriation is made.” 31 U.S.C. § 1341. The difference between this hypothetical landscaping contract and a contract like the one GSA describes is that, under the latter, the agency does not obligate time-limited funds outright; instead, it obligates revolving funds that will later be reimbursed by time-limited funds. As GSA sees it, this arrangement does not violate the ADA. GSA reasons that an agency generally may obligate revolving funds to pay for severable services for any period of time, so long as money in the revolving fund remains available for obligation. GSA argues that, even though a contract may indicate that particular time-limited funds will reimburse the revolving fund, the reimbursing agency could defer repayment until new timelimited funds become available. 7 The Anti-Deficiency Act applies not only to contracts between a government agency and a private party, but also to contracts between one government agency and another. See, e.g., Public Printer—Four-Year Contract for Purchase of Paper for Postal Cards, 27 Op. Att’y Gen. 584 (1909). 7 After we issued the initial version of this opinion, GSA requested that we reconsider our conclusion. See Letter for Virginia A. Seitz, Assistant Attorney General, Office of 6 83 37 Op. O.L.C. 78 (2013) GSA correctly notes that the one-year limit on severable services contracts does not generally apply to revolving funds. But we do not believe that general rule applies when an agency obligates money from a revolving fund under an arrangement in which the fund must be reimbursed with time-limited funds. In our view, money from a revolving fund like the Acquisition Services Fund, which agencies are legally required to reimburse, can be obligated only to the extent that the relevant appropriations are legally available for the expenditures made by the fund. 8 See Memorandum for the Files from Stephen J. Wilkinson, Office of Legal Counsel, Re: Federal Register Publication on November 23, 1981 (Dec. 4, 1981). Restrictions on the availability or use of the designated reimbursement funds limit an agency’s ability to obliLegal Counsel, from Kris E. Durmer, General Counsel, General Services Administration (Aug. 28, 2013) (“Reconsideration Request”). The Reconsideration Request argues that, at least with respect to one of the task orders, any contractual obligation exceeding the twelve-month period for which Recovery Act funds were available for reimbursement was, on the particular facts, not an impermissible obligation of Recovery Act funds, but solely an obligation of the revolving funds in the Acquisition Services Fund. Id. at 2. On that view, no Anti-Deficiency Act violation occurred because GSA-PBS would have had no obligation to reimburse the Acquisition Services Fund for services that GSA-FAS contracted for on GSA-PBS’s behalf that extended beyond the twelve-month period. We are not in a position to evaluate the particular facts that GSA identified in its Reconsideration Request, including whether the particular contracts at issue obligated GSAPBS to reimburse the revolving fund for expenses beyond the twelve-month period, in light of our practice to address only general legal questions that have prospective application. We accordingly reach no conclusion as to how GSA should apply our opinion to each of its past contractual arrangements. Our opinion is confined to those circumstances in which one government entity obligates revolving funds that another government entity is legally obligated to reimburse with time-limited funds. We defer to GSA’s determination of whether those circumstances arose in its past contracts. 8 GSA points out that the statute requires the Administrator of GSA to establish rates for services it provides customer agencies and to set those rates “at levels sufficient to recover . . . so far as practicable” certain costs, 40 U.S.C. § 321(d)(2). See GSA Letter at 5 n.9. We understand the “so far as practicable” language as an accommodation to the reality that GSA may not always be able to quantify precisely the costs associated with “inventory losses,” “amortization . . . of equipment,” “transportation cost,” and the other costs listed in section 321(d)(2). We do not read this language to suggest that customer agencies must only reimburse GSA to the extent that they have funds available, or that GSA may obligate money from the Acquisition Services Fund that it does not expect to recoup. The phrase “so far as practicable” qualifies the requirement that the GSA Administrator establish prices, not the requirement that agencies reimburse the GSA for obligations GSA undertakes on their behalf. 84 Obligation of Revolving Funds Requiring Reimbursement from Time-Limited Funds gate the revolving funds; otherwise, the restrictions on the use of funds could be circumvented simply by channeling their expenditure through a revolving fund. The one-year limit on the obligation of funds for purchase of severable services thus continues to apply when those funds are used to fulfill a legal obligation to reimburse a revolving fund for payment for severable services. This conclusion is consistent with prior advice of our Office. In November 1981, Executive Branch entities experienced a lapse in appropriations when the President vetoed a continuing resolution. Id. at 1. The Office of the Federal Register, an Executive Branch entity, asked whether, notwithstanding the lapse in appropriations, it could request that the Government Printing Office (“GPO”), a Legislative Branch entity, print the Federal Register the following day. Id. It explained that GPO charges the cost of printing the Federal Register to a revolving fund, which agencies must, by statute, reimburse. Id. We reasoned that “[b]ecause the agencies are required to reimburse the revolving fund from their own appropriations, at some point in the process the printing of the Federal Register creates an obligation within the meaning of . . . the Antideficiency Act.” Id. We advised the Office of the Federal Register that printing the Federal Register would violate the Act if doing so “called for the obligation created by the printing process to be charged to appropriations not yet enacted.” Id. at 2. The Comptroller General has taken a similar view. 9 See Chemical Safety and Hazard Investigation Board—Interagency Agreement with the General Services Administration, B-318425, 2009 WL 5184705 (Comp. Gen. Dec. 8, 2009) (“Chemical Safety Board ”). In Chemical Safety Board, the Comptroller General rejected a proposed interagency agreement in which GSA would have used the Acquisition Services Fund to pay for an open-ended severable services contract, which the Chemical Safety Board would later reimburse through some combination of FY 2009 funds and future funds. Id. at *1, *4. The Comptroller General reasoned that pledging future-year appropriations to reimburse GSA for the obligations it incurred under the interagency agreement would “obliThe Comptroller General’s views often provide helpful guidance on appropriations matters and related issues, although they do not bind the Executive Branch. See Use of Appropriated Funds to Provide Light Refreshments to Non-Federal Participants at EPA Conferences, 31 Op. O.L.C. 54, 55 n.1 (2007). 9 85 37 Op. O.L.C. 78 (2013) gate [the Chemical Safety Board] to pay for severable services to be performed in future fiscal years” and thereby violate the Anti-Deficiency Act. Id. at *4. That GSA would use a revolving fund to pay expenses at the outset made no difference, for “[a]n interagency agreement . . . that is funded through an intragovernmental revolving fund, is akin to a contract and the obligational consequences are the same as if it were a contract.” Id. at *1 n.6. Our analysis would not change even if the contracting agency did not actually spend revolving-fund money when reimbursement funds were unavailable, but only entered into a contract to do so. The Anti-Deficiency Act prohibits “involv[ing] . . . [the] government in a contract or obligation for the payment of money before an appropriation is made,” meaning that the violation occurs when the agency enters into the contract, even if it never spends the money it obligated. See Public Printer—Four-Year Contract for Purchase of Paper for Postal Cards, 27 Op. Att’y Gen. 584, 587 (1909) (advising that it would violate a predecessor version of the Anti-Deficiency Act to enter into a four-year paper contract, even though “[t]he four-year contract proposed would . . . not require any expenditure in excess of the appropriation” for the current fiscal year, because “there is no appropriation” for any “paper contracted to be furnished after” the date that current-year funds expire); see also Online Terms of Service Agreements with Open-Ended Indemnification Clauses Under the AntiDeficiency Act, 36 Op. O.L.C. 112, 125 (2012) (acknowledging that commitments made in violation of the ADA cannot be legally enforced, but advising that “[t]he mere fact that commitments made in violation of the ADA are not legally enforceable does not somehow erase the ADA violation”). Our conclusion is not at odds with the Comptroller General’s statement that “a naked contractual obligation that carries with it no financial exposure to the government does not violate the Antideficiency Act.” See DHS Letter at 3 (quoting Funding of Maintenance Contract Extending Beyond Fiscal Year, B-259274, 1996 WL 276377, at *4 (Comp. Gen. May 22, 1996) (“Maintenance Contract ”)). In Maintenance Contract, the Comptroller General concluded that an agency did not violate the ADA by leaving eight months of a twelve-month severable services contract unfunded at the time of the award where that contract included a clause making the government’s obligation for the unfunded months “contingent 86 Obligation of Revolving Funds Requiring Reimbursement from Time-Limited Funds upon the contracting officer notifying the contractor in writing that funds were available for continued performance and that the contractor continue work.” 1996 WL 276377, at *1. Because the agency had made the continuation of the contract contingent on the availability of funds, it had not involved the government in an obligation for which funds were not yet available; it had merely given the government the option to continue the contract should funds become available. When no such contractual contingency exists, an agency violates the Anti-Deficiency Act when it enters into a contract that obligates the government to make payments beyond the period in which funds are available to reimburse those expenditures. III. GSA, joined by DHS, urges that, even if entering into a greater-thanone-year severable services contract would violate the ADA, an agency can cure, if not altogether avoid, the violation by modifying the contract so that the performance period does not exceed one year.10 While shortening a severable services contract’s period of performance may terminate an ongoing ADA violation, it would not undo the violation that occurred when the contracting agency obligated revolving funds in advance of an appropriation for reimbursement funds. The Comptroller General has long taken the view that an ADA violation can be cured under certain circumstances. See 2 Federal Appropriations Law at 6-80 to 6-82 (3d ed. 2006). If an agency charges an obligation to the wrong appropriation account, and funds are available in the correct account, the agency may adjust its accounts by charging the obligation to the correct one. Id. As long as sufficient appropriated funds were available when the obligation occurred and remain available in the For the purposes of this opinion, we use the word “cure” to mean taking some action after an ADA violation has occurred that retroactively eliminates the violation and makes a report to Congress unnecessary. We use the word “avoid” to mean preventing the violation from occurring in the first place. And we use the word “terminate” to mean taking some post-violation action that stops an ongoing ADA violation but does not eliminate the original violation and accordingly does not discharge the violating agency from its responsibility to report to Congress. We do not suggest that these words are terms of art in appropriations law, but rather define them to make sure our analysis here is clear. 10 87 37 Op. O.L.C. 78 (2013) correct account at the time of the adjustment, the agency does not have to report its initial improper obligation as a violation of the ADA. Id. A critical feature of a curable ADA violation, however, is the existence of legally available funds to cover the expenditure when the obligation occurs. If funds are not legally available, the agency cannot simply adjust its accounts and thereby correct the improper obligation, because the agency lacked authority to enter into the obligation at the outset. Thus, for example, when an agency charges an appropriation account for a purpose other than that specified in the appropriation, and no existing account is legally available for the charged purpose, the agency violates the ADA in a way that it cannot cure. Id. at 6-82. Similarly, when an agency violates the ADA by entering into a contract with an impermissible indemnification provision that exposes the government to unlimited financial liability, the agency cannot cure that violation, because it did not have funds legally available for the obligation when it was incurred. See Department of the Army—Escrow Accounts and the Miscellaneous Receipts Statute, B-321387, 2011 WL 1178327 (Comp. Gen. Mar. 30, 2011) (“Escrow Accounts”). In the latter situation, a contractual modification that removes the impermissible provision may terminate an ongoing ADA violation, but it does not undo the violation that occurred when the agency involved the government in a contract for which appropriations were unavailable. See id. at *9. Thus, in assessing whether the ADA violations resulting from a contractual arrangement in which one federal entity obligates revolving funds that another entity legally must reimburse with time-limited funds, we would examine whether funds were legally available to cover the obligation to reimburse when the contractual obligation arose. In our judgment, contractual arrangements in which time-limited funds are obligated for reimbursement beyond the twelve-month period permitted by 31 U.S.C. § 1502(a) resemble contracts with impermissible indemnification clauses: No funds are legally available to cover the pertinent obligation at the time it is incurred. The statute governing obligations of the revolving fund requires that the revolving fund be reimbursed, and the contract providing for reimbursement of the fund specifies the use of time-limited funds that could not be obligated for any part of a contract that extended beyond one year. The Comptroller General decisions that GSA and DHS identify as support for their arguments do not conflict with our view. In one of the deci88 Obligation of Revolving Funds Requiring Reimbursement from Time-Limited Funds sions, the Comptroller General concluded that a three-year requirements contract violated “the statutory prohibitions against obligating the government in advance of appropriations,” with no indication that the agency could cure the violation. See Appropriations—Availability—Contracts— Future Needs, 42 Comp. Gen. 272, 272 (1962) (“1962 Decision”); see also Contracts—Federal Supply Schedule—Multi-Year Procurement, 48 Comp. Gen. 497, 499 (1969) (explaining that the 1962 Decision concluded that a violation of the ADA had occurred). The Comptroller General allowed the contracting agency to complete the contract “in view of the circumstances of the award,” which appeared to include the fact that the contract provided services to a military base on a remote island, but he did not suggest that a contractual modification could cure the violation. 1962 Decision, 42 Comp. Gen. at 278. The Maintenance Contract decision, discussed above, does not address whether an agency can cure a violation; rather, it concludes that a contractual arrangement that does not result in any financial exposure for the government does not violate the ADA. Maintenance Contract, 1996 WL 276377, at *4. The remaining three decisions address situations in which no ADA violation occurred or any ADA violation could be cured, but none involves a contractual arrangement similar to the one that we have described. In one decision, the Comptroller General concluded that entering into a lease without legal authority to do so did not result in an ADA violation (though it violated other laws) because appropriations were available to pay for leases at the time of the obligation, and the agency recorded the obligation in the correct account. See Interagency Agreements—Use of an Interagency Agreement between the Counterintelligence Field Activity, Department of Defense, and GovWorks to Obtain Office Space, B-309181, 2007 WL 2389756 (Comp. Gen. Aug. 17, 2007). In another, the Comptroller General concluded that an agency could cure an improper obligation of expired funds if it had sufficient current-year funds at the time of obligation to cover the obligation. Expired Funds and Interagency Agreements between GovWorks and the Department of Defense, B-308944, 2007 WL 2120292 (Comp. Gen. July 17, 2007). In the final decision, the agency improperly divided payments under a nonseverable services contract over the course of two years, and the Comptroller General concluded that the agency could cure an ADA violation if it could adjust accounts so that it recorded the 89 37 Op. O.L.C. 78 (2013) entire contract as an obligation for the first fiscal year, and had sufficient funds available to do so. Financial Crimes Enforcement Network— Obligations under a Cost-Reimbursement, Nonseverable Services Contract, B-317139, 2009 WL 1621304 (Comp. Gen. June 1, 2009). In each decision, the agency’s ability either to avoid or to cure an ADA violation turned on whether sufficient funds were legally available at the time the obligation occurred. When funds are not legally available at the time of obligation so that the agency could correct the violation through an adjustment of accounts, the ADA violation cannot be cured. We appreciate that modifying an impermissible contract term may prevent an ADA violation from continuing and may prevent the government from actually spending the funds that it obligated in advance of an appropriation. But a contractual modification that prevents improper spending does not by itself cure an initial improper obligation. See Escrow Accounts, 2011 WL 1178327, at *9. For that reason, and those explained above, we conclude that an agency cannot cure an ADA violation that occurs when it enters into a greater-than-one-year severable services contract by modifying the contract’s performance period. VIRGINIA A. SEITZ Assistant Attorney General Office of Legal Counsel 90

Write a legal research memo on the following topic.

June 28, 1979 79-46 MEMORANDUM OPINION FOR THE ACTING COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE Due Process—United States (as Creditor)— Withholding Wages of Federal Employee (as Debtor) in Satisfaction of Debt Allegedly Owed the Government This responds to your request for our guidance whether the Immigra­ tion and Naturalization Service (INS) must accord its employees a full evidentiary hearing before INS withholds, pursuant to 5 U.S.C. § 5512(a),1 the wages of such employees in satisfaction of a debt allegedly owed the United States. In a conversation with your Office we were in­ formed that more precisely the question is what kind of due process hear­ ing is required. Before we prooeed with our legalanalysis and discussion it would be useful to delineate briefly the relevant factual situation. The INS believed that one of its employees was obligated to reimburse the Govern­ ment for the loss of certain funds for which INS deemed her accountable. Based upon an investigation, INS decided that the employee was account­ able for $2,175.00, funds found to be missing from a district office. Of that amount, $655.00 was recovered, thus leaving the amount un­ accounted for at $1,520.00. The investigation concluded that the employee failed to follow adequate procedures to safeguard the funds. The Federal Bureau of Investigation, by way of a separate investigation, concluded that the evidence was inconclusive and thus recommended against criminal prosecution. The INS, however, decided to recover the missing $1,520.00 by withholding from the employee’s pay a designated sum each pay period. We understand that it so advised the employee 1 T hat provision reads as follows: The pay o f an individual in arrears to the United States shall be withheld until he has ac­ counted for and paid into the Treasury o f the United States all sums for which he is liable. See 26 O p. A tt’y. G en. 77 (1906). 269 who responded by filing a Federal civil action seeking to enjoin INS from withholding any part of the pay. The U.S. Attorney handling the case ad­ vised INS that he believed case law requires a “ due process” hearing prior to administrative wage-withholding. Thereafter the Government and the employee stipulated that the case should be dismissed without prejudice and that INS, which had not yet withheld any pay, would accord the employee a fulll evidentiary hearing through its grievance procedures. While this stipulation moots your questions as to this particular case, you state that you seek guidance for future cases. The Supreme Court in recent years has considered in a variety of cir­ cumstances what due process requirements apply where deprivation of property interests are involved. The case that is most relevant here is Sniadach v. Family Finance Corp., 395 U.S. 337 (1969). That case dealt with hearing requirements involving garnishment of wages. The court con­ sidered a Wisconsin law allowing a garnishment to be instituted by the creditor’s lawyer by requesting the clerk of the state court to issue a sum­ mons. Service of the summons upon the garnishee (the employer) effec­ tively froze the employee’s (the alleged debtor’s) wages. The Court stated: [The wages] may, it is true, be unfrozen if the trial of the main suit is ever had and the wage earner wins on the merits. But in the interim the wage earner is deprived of his enjoyment of earned wages without any opportunity to be heard and to tender any defense he may have, whether it be fraud or otherwise. [395 U.S. at 339.] The Court noted that there may be extraordinary circumstances justifying a summary procedure, e.g., in order to protect the creditor against perma­ nent loss. However, it found no such circumstances in the case.2 In ana­ lyzing the requirements of due process with respect to attachments and other like processes, the Court stressed the unique nature of wages—“ a specialized type of property presenting distinct problems in our economic system.” Id. at 340. The Court stated: [A] prejudgment garnishment of the Wisconsin type may as a practical matter drive a wage-earning family to the wall. Where the taking of one’s property is so obvious, it needs no extended argument to conclude that absent notice and a prior hear­ ing * * * this prejudgment garnishment procedure violates the fundamental principles of due process. [Id. at 341-342.] Hence what the Government seeks is essentially a recoupment or a setoff. However, this does not distinguish it from garnishment since both may “ as a practical matter drive a wage-earning family to the wall.” 1 In the usual case there probably would be no extraordinary circumstances warranting such a summary procedure because the persons from whom the withholdings are to be made are G overnm ent employees who have a substantial interest in their jobs and are unlikely to abscond to avoid repaym ent. 270 The Court’s evident concern was that wages should not be withheld without a due process hearing. This is because wages, in most cases, sus­ tain the wage earner and his family from week to week and any depriva­ tion thereof could have potentially severe consequences.3 It may be noted that 5 U.S.C. § 5512, the provision authorizing the withholding here, does not expressly provide for a hearing of any kind. The section speaks of an “ individual in arrears to the United States,” not of one suspected of being in arrears. But it does not deal with the due proc­ ess requirement governing the determination of the individual’s liability. Accordingly, the process involved in the determination of liability must be considered apart from § 5512. Further, the Sniadach rule is constitution­ ally based and cannot be undermined by statute. It is well established that if at all possible a statute will be construed to avoid constitutional difficulties. Thus, where a provision entails depriving individuals of property rights but fails to expressly provide for notice and a hearing, it must be read as embodying the procedural rights implicit in the due process clause. Pan American World Airways, Inc. v. Marshall, 439 F. Supp. 487 (S.D.N.Y. 1977). By reading § 5512 as consistent with the due process clause it becomes clear that notice and a hearing are necessary before administrative withholding o f a Federal employee’s pay can be effected. Your precise question, as noted above, is whether a “ full evidentiary hearing” is required. Although Sniadach did not discuss in detail the hear­ ing requirements needed for a wage-withholding, the Court did hold that an “ opportunity to be heard and to tender any defense” were required. Id. at 339. It is our opinion that a hearing similar to that required in Goldberg v. Kelly, 397 U.S. 254 (1970) (termination of welfare benefits) is necessary here, that is, a hearing closely approximating a judicial trial. The Goldberg hearing procedure was summarized in Mathews v. Eldridge, 424 U.S. 319, 325 n. 5 (1976) as follows: (1) “ timely and adequate notice detailing the reasons for a pro­ posed [Government action]” ; (2) “ an effective oppor­ tunity * * * to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally” ; (3) retained counsel, if desired; (4) an “ impartial” decision­ maker; (5) a decision resting “ solely on the legal rules and evidence adduced at the hearing” ; (6) a statement of reasons for the decision and the evidence relied on. 397 U.S., at 266-271. 1 U nder the Wisconsin procedure, up to one-half o f a d ebtor’s wages could be frozen under the garnishment procedure. T hus, an argument can be made that freezing or withholding a significantly lesser portion o f a person’s wages would not require the same level o f due process protection. However, we believe that the better view is to consider any deprivation o f wages as substantial. Indeed, the C ourt in Sniadach did not appear to consider the potential severity o f the deprivation with respect to individual debtors. Rather, the focus was on the importance o f wages as a general m atter. 271 The Court in Mathews stated that the dictates of due process generally require consideration of three distinct factors: First, the private interest that will be affected by the official ac­ tion; second, the risk o f an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substi­ tute procedural requirement would entail. [Id. at 355.] The private interest that may be adversely affected here by your agency’s action is potentially substantial. This is because wages are “ a specialized type of property presenting distinct problems in our economic system.” Sniadach, at 340. Moreover, as we understand it, the proposed wage-withholding in­ volved here would constitute the final agency action. Thus, unless the employee sought judicial review and prevailed, the administrative depriva­ tion will deprive the employee of the withheld wages. This is unlike Goldberg v. Kelly and Mathews v. Eldridge, in that the official action in those cases was temporary and subject to further administrative review which afforded the claimant an evidentiary hearing much like that ordered in Goldberg.* Accordingly, the deprivation would be final insofar as agency action was concerned so that heightened solicitude for the private interest is required. See, North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 606 (1975), where the Court noted that “ the length or sever­ ity of a deprivation of use or possession [of property] would be another factor to weigh in determining the appropriate form of hearing * * Concerning the second factor in Mathews, i.e., the value of additional procedural safeguards, it would seem that a wage-withholding hearing might frequently involve disputed factual issues and questions of credibil­ ity. Thus, the hearing must be structured so as to provide for their resolu­ tion. Mathews at 343-345. We do not know, of course, whether such issues will arise in a particular case. Finally, the cost to the Government of a Goldberg-type evidentiary hearing probably would not result in a significant burden on the Govern­ ment. The Court in Mathews noted that the cost to the Government of providing statutory benefits to ineligible recipients pending decision would not be insubstantial. 424 U.S. at 347. This concern would be inapplicable in wage-withholding actions because the employee is otherwise clearly en­ titled to his or her wages. Further, it seems unlikely that the costs of the hearings themselves would impose a significant burden on the Government. 4 While the welfare recipient in Goldberg was entitled to an evidentiary hearing, the primary issue was whether the hearing was required before the term ination o f benefits or whether term ination could be m ade subject to a subsequent evidentiary hearing. 397 U .S. at 259-260. 272 For these reasons, w e believe that a Goldberg v. Kelly-type hearing is re­ quired in adm inistrative wage w ithholdings. Leon U lm an Deputy Assistant Attorney General Office o f Legal Counsel 273

Write a legal research memo on the following topic.

June 28, 1979 79-46 MEMORANDUM OPINION FOR THE ACTING COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE Due Process—United States (as Creditor)— Withholding Wages of Federal Employee (as Debtor) in Satisfaction of Debt Allegedly Owed the Government This responds to your request for our guidance whether the Immigra­ tion and Naturalization Service (INS) must accord its employees a full evidentiary hearing before INS withholds, pursuant to 5 U.S.C. § 5512(a),1 the wages of such employees in satisfaction of a debt allegedly owed the United States. In a conversation with your Office we were in­ formed that more precisely the question is what kind of due process hear­ ing is required. Before we prooeed with our legalanalysis and discussion it would be useful to delineate briefly the relevant factual situation. The INS believed that one of its employees was obligated to reimburse the Govern­ ment for the loss of certain funds for which INS deemed her accountable. Based upon an investigation, INS decided that the employee was account­ able for $2,175.00, funds found to be missing from a district office. Of that amount, $655.00 was recovered, thus leaving the amount un­ accounted for at $1,520.00. The investigation concluded that the employee failed to follow adequate procedures to safeguard the funds. The Federal Bureau of Investigation, by way of a separate investigation, concluded that the evidence was inconclusive and thus recommended against criminal prosecution. The INS, however, decided to recover the missing $1,520.00 by withholding from the employee’s pay a designated sum each pay period. We understand that it so advised the employee 1 T hat provision reads as follows: The pay o f an individual in arrears to the United States shall be withheld until he has ac­ counted for and paid into the Treasury o f the United States all sums for which he is liable. See 26 O p. A tt’y. G en. 77 (1906). 269 who responded by filing a Federal civil action seeking to enjoin INS from withholding any part of the pay. The U.S. Attorney handling the case ad­ vised INS that he believed case law requires a “ due process” hearing prior to administrative wage-withholding. Thereafter the Government and the employee stipulated that the case should be dismissed without prejudice and that INS, which had not yet withheld any pay, would accord the employee a fulll evidentiary hearing through its grievance procedures. While this stipulation moots your questions as to this particular case, you state that you seek guidance for future cases. The Supreme Court in recent years has considered in a variety of cir­ cumstances what due process requirements apply where deprivation of property interests are involved. The case that is most relevant here is Sniadach v. Family Finance Corp., 395 U.S. 337 (1969). That case dealt with hearing requirements involving garnishment of wages. The court con­ sidered a Wisconsin law allowing a garnishment to be instituted by the creditor’s lawyer by requesting the clerk of the state court to issue a sum­ mons. Service of the summons upon the garnishee (the employer) effec­ tively froze the employee’s (the alleged debtor’s) wages. The Court stated: [The wages] may, it is true, be unfrozen if the trial of the main suit is ever had and the wage earner wins on the merits. But in the interim the wage earner is deprived of his enjoyment of earned wages without any opportunity to be heard and to tender any defense he may have, whether it be fraud or otherwise. [395 U.S. at 339.] The Court noted that there may be extraordinary circumstances justifying a summary procedure, e.g., in order to protect the creditor against perma­ nent loss. However, it found no such circumstances in the case.2 In ana­ lyzing the requirements of due process with respect to attachments and other like processes, the Court stressed the unique nature of wages—“ a specialized type of property presenting distinct problems in our economic system.” Id. at 340. The Court stated: [A] prejudgment garnishment of the Wisconsin type may as a practical matter drive a wage-earning family to the wall. Where the taking of one’s property is so obvious, it needs no extended argument to conclude that absent notice and a prior hear­ ing * * * this prejudgment garnishment procedure violates the fundamental principles of due process. [Id. at 341-342.] Hence what the Government seeks is essentially a recoupment or a setoff. However, this does not distinguish it from garnishment since both may “ as a practical matter drive a wage-earning family to the wall.” 1 In the usual case there probably would be no extraordinary circumstances warranting such a summary procedure because the persons from whom the withholdings are to be made are G overnm ent employees who have a substantial interest in their jobs and are unlikely to abscond to avoid repaym ent. 270 The Court’s evident concern was that wages should not be withheld without a due process hearing. This is because wages, in most cases, sus­ tain the wage earner and his family from week to week and any depriva­ tion thereof could have potentially severe consequences.3 It may be noted that 5 U.S.C. § 5512, the provision authorizing the withholding here, does not expressly provide for a hearing of any kind. The section speaks of an “ individual in arrears to the United States,” not of one suspected of being in arrears. But it does not deal with the due proc­ ess requirement governing the determination of the individual’s liability. Accordingly, the process involved in the determination of liability must be considered apart from § 5512. Further, the Sniadach rule is constitution­ ally based and cannot be undermined by statute. It is well established that if at all possible a statute will be construed to avoid constitutional difficulties. Thus, where a provision entails depriving individuals of property rights but fails to expressly provide for notice and a hearing, it must be read as embodying the procedural rights implicit in the due process clause. Pan American World Airways, Inc. v. Marshall, 439 F. Supp. 487 (S.D.N.Y. 1977). By reading § 5512 as consistent with the due process clause it becomes clear that notice and a hearing are necessary before administrative withholding o f a Federal employee’s pay can be effected. Your precise question, as noted above, is whether a “ full evidentiary hearing” is required. Although Sniadach did not discuss in detail the hear­ ing requirements needed for a wage-withholding, the Court did hold that an “ opportunity to be heard and to tender any defense” were required. Id. at 339. It is our opinion that a hearing similar to that required in Goldberg v. Kelly, 397 U.S. 254 (1970) (termination of welfare benefits) is necessary here, that is, a hearing closely approximating a judicial trial. The Goldberg hearing procedure was summarized in Mathews v. Eldridge, 424 U.S. 319, 325 n. 5 (1976) as follows: (1) “ timely and adequate notice detailing the reasons for a pro­ posed [Government action]” ; (2) “ an effective oppor­ tunity * * * to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally” ; (3) retained counsel, if desired; (4) an “ impartial” decision­ maker; (5) a decision resting “ solely on the legal rules and evidence adduced at the hearing” ; (6) a statement of reasons for the decision and the evidence relied on. 397 U.S., at 266-271. 1 U nder the Wisconsin procedure, up to one-half o f a d ebtor’s wages could be frozen under the garnishment procedure. T hus, an argument can be made that freezing or withholding a significantly lesser portion o f a person’s wages would not require the same level o f due process protection. However, we believe that the better view is to consider any deprivation o f wages as substantial. Indeed, the C ourt in Sniadach did not appear to consider the potential severity o f the deprivation with respect to individual debtors. Rather, the focus was on the importance o f wages as a general m atter. 271 The Court in Mathews stated that the dictates of due process generally require consideration of three distinct factors: First, the private interest that will be affected by the official ac­ tion; second, the risk o f an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substi­ tute procedural requirement would entail. [Id. at 355.] The private interest that may be adversely affected here by your agency’s action is potentially substantial. This is because wages are “ a specialized type of property presenting distinct problems in our economic system.” Sniadach, at 340. Moreover, as we understand it, the proposed wage-withholding in­ volved here would constitute the final agency action. Thus, unless the employee sought judicial review and prevailed, the administrative depriva­ tion will deprive the employee of the withheld wages. This is unlike Goldberg v. Kelly and Mathews v. Eldridge, in that the official action in those cases was temporary and subject to further administrative review which afforded the claimant an evidentiary hearing much like that ordered in Goldberg.* Accordingly, the deprivation would be final insofar as agency action was concerned so that heightened solicitude for the private interest is required. See, North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 606 (1975), where the Court noted that “ the length or sever­ ity of a deprivation of use or possession [of property] would be another factor to weigh in determining the appropriate form of hearing * * Concerning the second factor in Mathews, i.e., the value of additional procedural safeguards, it would seem that a wage-withholding hearing might frequently involve disputed factual issues and questions of credibil­ ity. Thus, the hearing must be structured so as to provide for their resolu­ tion. Mathews at 343-345. We do not know, of course, whether such issues will arise in a particular case. Finally, the cost to the Government of a Goldberg-type evidentiary hearing probably would not result in a significant burden on the Govern­ ment. The Court in Mathews noted that the cost to the Government of providing statutory benefits to ineligible recipients pending decision would not be insubstantial. 424 U.S. at 347. This concern would be inapplicable in wage-withholding actions because the employee is otherwise clearly en­ titled to his or her wages. Further, it seems unlikely that the costs of the hearings themselves would impose a significant burden on the Government. 4 While the welfare recipient in Goldberg was entitled to an evidentiary hearing, the primary issue was whether the hearing was required before the term ination o f benefits or whether term ination could be m ade subject to a subsequent evidentiary hearing. 397 U .S. at 259-260. 272 For these reasons, w e believe that a Goldberg v. Kelly-type hearing is re­ quired in adm inistrative wage w ithholdings. Leon U lm an Deputy Assistant Attorney General Office o f Legal Counsel 273

Write a legal research memo on the following topic.

October 25, 1977 78-88 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT The President— Constitutional Law (Article I, § 7, cl. 2)— Presentation of Enrolled Bills— Absence of the President In light of the President’s forthcoming trip abroad, we believe you should be alerted to some of the problems and procedures connected with the presentation and signing of bills during his absence, in the event the matter should arise. Article I, § 7, cl. 2, of the Constitution provides that all bills and resolutions approved by both Houses of the Congress are to be presented to the President, who then has 10 days (Sundays excepted) within which to approve, veto, or take no action on the bill. The 10-day period begins to run when an enrolled bill is “ presented” to the President. When the President is in the United States, presentation does not require delivery to him personally; rather it is done by delivery of the bill to one of the legislative clerks on the W hite House staff. See, E ber Bros. Wine & L iquor Corp. v. U nited States, 167 Ct. Cl. 665, 674, 690 (1964), cert, denied, 380 U.S. 950 (1964). This procedure obviously will not work when the President is abroad. Communication problems and preoccupation with the subject matter of his trip (cf., Eber B ros., supra, at 676) could then effectively curtail the period for his consideration. In the P ocket Veto C ase, 279 U.S. 655, 678 (1929), the Court stressed the importance of the availability to the President of the full constitutional period for consideration. The simplest way of dealing with that situation is through an agreement between the President and the congressional leadership pursuant to which no enrolled bills will be presented during his absence. There have been several such arrangements. See, e .g ., Zinn, Charles J., The Veto P ow er o f the President, p. 16, U.S. Congress, House, Committee on the Judiciary, Committee Print, W ashington, U.S. G .P .O . 1952; E ber B ros., supra, at 702, 705, 708. We are attaching for your convenience copies o f a memorandum of President Franklin D. Roosevelt dated November 10, 1943; a letter from Attorney General Brownell to President Eisenhower dated July 5, 1955; a letter of President Lyndon B. Johnson dated October 14, 1966, and the reply o f the Speaker of the House of Representatives dated October 14, 1966. 383 in the unlikely event that the President is unable to obtain such a commitment from Congress, including the contingency of urgent legislation that cannot await the President’s return, the President normally withdraws the legislative clerks’ authority to accept enrolled bills on his behalf when he travels abroad and so advises the Congress. The bills are received by the White House staff not for “ presentation” to the President but for forwarding or transmission to the President. Presentation is then effected either when the bills actually are received by him abroad or upon his return to W ashington. E ber B ros., supra, at 676. While that case suggests that when the President is abroad, Congress has the power to start the running of the 10-day period by making a personal presentation abroad, we are not aware of any actual precedent to that effect. We should also refer to the considerable time differences between W ashing­ ton and some o f the places where the President will visit. There is a time difference o f 10 1/2 hours between W ashington and New Delhi; midnight at New Delhi is 1:30 p .m ., W ashington time. Hence if the President signed a bill on Delhi time, he could lose almost half a day of the constitutional period. Moreover, confusion could arise regarding the computation o f the time within which to approve a bill where it is presented in one time zone but action on it is taken in another zone. Normally acts are dated as o f local legal time. Thus, it was held in Sunday v. M adigan , 301 F.(2d) 871 (9th C ir., 1962), that the Uniform Code of Military Justice which was to become effective on May 15, 1951, became effective in Korea on May 15 Korean tim e, although it was still May 14 in the United States. On the other hand, as we have pointed out above, it is important for the President to have the full constitutional period of 10 days for consideration of the action he should take. Sim ilarly, there should be no ambiguity as to when the 10-day period begins and ends. Accordingly, we recommend that if the President acts while abroad, notation of the time when a bill is presented to or approved by him be made according to the date and hour calculated as of W ashington time. Jo h n M . H a rm o n A ssistan t A ttorney G eneral Office o f L egal Counsel A ttachm ents 384 ‘CO PY ” November 10, 1943 MEMORANDUM FOR THE VICE PRESIDENT THE SPEAKER As I expect to be away from W ashington for some time in the near future, I hope that insofar as possible the transmission of completed legislation be delayed until my return. The White House Office, however, in other cases of emergency has been authorized to forward to me any and all enrolled bills or joint resolutions. They will be forwarded at once by the quickest means. The White House Office will not receive bills or resolutions on behalf of the President but only for the purpose of forwarding them. As soon as received by the President their presentation to the President will have been completed in accordance with the terms o f the Constitution. I suggest, therefore, that if any bill is fo rw a rd e d to the White H ouse, the entries on the H ouse an d Senate Journals show “delivery to the White H ouse f o r forw ardin g to the P resid en t’’ For security reasons I hope that this can be kept confidential for as long as is necessary. F.D .R . 385 OFFICE OF THE ATTORNEY GENERAL W ASHINGTON, D.C. July 5, 1955 The President, The W hite House. My dear Mr. President: It is suggested that you confer with leaders in Congress so that arrangements can be made under the law for enrolled bills or joint resolutions to be held in Congress until your return. In this way, your attention to the important matters raised in Summit Talks will not be diverted by consideration of bills which may safely await your return. If Congressional leadership believes that the matter is serious enough to warrant your immediate attention, it should be advised to forward the bill to the White House with this understanding: 1. That the entries on the House and Senate Journals will carry the statement: “ Delivery to the W hite House for forwarding to the Presi­ d en t.” 2. That the White House Office will be advised that it will not receive bills or resolutions on behalf of the President but they will only be “ received for forwarding them to the President” . 3. That where the President acts on an emergency measure his decision will be communicated not only by carrier but also by cable. This procedure would be used in order that in event of a veto the Congress could receive as much notice as possible to permit it to act. Respectfully, Isl Herbert Brownell, Jr. Attorney General 386 THE W HITE HOUSE WASHINGTON October 14, 1966 Dear Mr. President: This will confirm arrangements made between you and members of my staff. I am leaving on M onday to attend the important conference in Manila and to visit some o f our friends in the Pacific and Southeast Asia. I expect to return to Washington about November 2. In view of the close scheduling and concentrated efforts required by this mission, I think it preferable to defer until my return Presidential consideration of all but the most urgent legislation completed by Congress prior to its adjournment, so that each bill may receive the careful attention which it deserves. In line with the patterns developed by previous Presidents under similar circumstances, I have issued instructions that bills received at the White House while I am on this trip will be treated not as having been “ presented” to the President in the Constitutional sense, but as having been received for forwarding or for presentation upon my return. The bills received and the receipts customarily given to the Congressional messengers during this period will be stamped “ Received (date) The White House, for forwarding to the President or for presentation to him on his return from abroad.” Under this arrangement the ten-day period for Presidential consideration provided in Article I, Section 7 of the Constitution will begin either upon my return to the White House or when the bills are actually presented to me while I am away. Meanwhile, in order that every bill may receive full consideration at the earliest practicable date, the Bureau of the Budget and the Executive departments and agencies will proceed with their preparatory work on all bills as soon as such bills are received at the W hite House. The Acting Attorney General has reviewed and approved these procedures. Sincerely, /s/ Lyndon B. Johnson Honorable Hubert H. Humphrey President of the Senate Washington, D.C. 387 THE SPEA K ER’S ROOMS U .S. HOUSE OF REPRESENTATIVES W ASHINGTON, D.C. October 14, 1966 The President The W hite House W ashington, D.C. Dear Mr. President: I am in receipt o f your letter of October 14th in relation to the Bills that pass both branches o f Congress and are received at the White House subsequent to your leaving for your trip to the Philippines and other countries. So far as the House of Representatives is concerned, when receipts are received from the White House, similar entries to those stamped on the receipts will be made in the House Journal and the Congressional Record. With my very best wishes for a most successful and safe voyage abroad and return, and with kind personal regards, I am, as always, Very respectfully yours, Is/ John W. M cCormack 388

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Constitutionality of State-Imposed Restrictions on Responses to Census Questions T h e S u p re m acy C lause o f th e C o n stitu tio n b ars a sta te from im posing restrictio n s on its resid en ts’ responses to q u estio n s c o n ta in e d in cen su s form . S p ecific lim ited g ran t o f p o w e r in th e C o n stitu tio n d o es not p re c lu d e C o n g ress from e n a c tin g b ro a d e r cen su s legislation u n d e r th e N e ce ssa ry and P ro p e r C lause. S ta tu to ry d eleg atio n to th e S e c re ta ry o f C o m m e rc e an d D ire c to r o f th e B ureau o f C ensus is not excessive, c o n sid e rin g lo n g h isto ry o f cen su s legislation and p ractice, and census fo rm s are w ith in th at deleg atio n . February 22, 1980 M E M O R A N D U M O P IN IO N FO R T H E G E N E R A L C O U N SEL, D E PA R T M EN T O F COM M ERCE This responds to the letter o f the Legal Adviser, Bureau of the Census, seeking the opinion o f this Office on the constitutionality o f a bill introduced into the Senate o f the State o f Arizona that would limit census responses by residents o f A rizona to their name, address, and age. It is our conclusion that such legislation, if enacted, would be unconstitutional under the Suprem acy Clause o f the Constitution (Art. VI, cl. 2) to the extent that it would purport to excuse residents of Arizona from answering questions in the census form that are author­ ized by federal law. T he prim ary authority for the census form for the 1980 census is 13 U.S.C. 141(a), pursuant to which: T he Secretary [of Com merce] shall, in the year 1980 and every 10 years thereafter, take a decennial census o f popu­ lation as o f the first day o f A pril o f such year, which date shall be known as the “decennial census date,” in such form and content as he may determ ine, including the use o f sampling procedures and special surveys. In connection with any such census, the Secretary is authorized to obtain such other census inform ation as necessary. Section 141(g) defines the term “census o f population” as a “census o f population, housing, and m atters relating to population and housing.” 13 U.S.C. § 141(g). Section 5 o f title 13 gives the Secretary o f Com ­ 416 merce general implementing authority,1 and the Joint Resolution o f June 16, 1976, 90 Stat. 688, imposes on the Secretary o f Com m erce special obligations to collect and publish statistics indicating the condi­ tions o f Americans o f Spanish origin or descent and to develop credit­ able estimates o f undercounting o f Am ericans of Spanish origin or descent in future censuses. Under A rticle VI, clause 2 o f the Constitution, state laws must yield to federal laws and regulations if these federal authorities are made “in pursuance” o f the Constitution. T he sponsors o f the A rizona legislation seem to suggest that the census legislation conflicts with the C onstitu­ tion o f the United States because A rticle I, § 2, clause 3 o f the C onstitu­ tion provides only for the enum eration o f the population, and, hence, that the Constitution does not permit the inclusion in the census o f any additional questions. T he notion that a specific limited grant in the Constitution precludes Congress from enacting broader statutes under other powers granted to it in the C onstitution was rejected by the Supreme C ourt m ore than a century ago w ith specific reference to the census legislation. In the Legal Tender Cases, 79 U.S. (12 W all.) 457, 536 (1871), which involved the constitutionality o f the statutes making paper money legal tender, the argum ent was made that because the Constitution specifically authorized Congress to coin money and regu­ late its value (Art. I, § 8, cl. 5), Congress did not have any other powers in the m onetary field. T he C ourt held that under the Necessary and Proper Clause (Art. I, § 8, cl. 18) Congress could enact legislation in aid o f one or m ore express pow ers “even if there is another express pow er given relating in part to the same subject but less extensive.” As an example for this proposition, the C ourt stated: T he Constitution orders an enum eration o f free persons in the different States every ten years. T he direction extends no further. Yet Congress has repeatedly directed an enu­ meration not only o f free persons in the States but o f free persons in the Territories, and not only an enum eration o f persons but the collection o f statistics respecting age, sex, and production. W ho questions the pow er to do this? 12 Wall, at 536. W hile this approval o f the broad scope o f census questions in the L egal Tender Cases was in the nature o f dictum , the C ircuit C ourt for the Southern D istrict o f N ew York in United States v. Moriarity, 106 F. 886, 891-92 (1901) discussed the pertinent constitutional considerations 1 This section provides: T h e Secretary (of C om m erce] shall prepare schedules, and shall determ ine the inquir­ ies, and the number, form, and subdivisions thereof, fo r th e statistics, surveys, and censuses provided for in this title. A ug. 31. 1954, ch. 1158, § 5 , 68 Stat. 1013. 417 at length, and little can be added to this classic analysis. T he court stated: Respecting the suggestion that the pow er o f congress is limited to a census o f the population, it should be noticed that at stated periods congress is directed to make an apportionm ent, and to take a census to furnish the neces­ sary information therefor, and that certain representation and taxation shall be related to that census. This does not prohibit the gathering o f other statistics, if “necessary and proper,” for the intelligent exercise o f other pow ers enu­ m erated in the constitution, and in such case there could be no objection to acquiring this information through the same m achinery by w hich the population is enum erated, especially as such course w ould favor econom y as well as the convenience o f the governm ent and the citizens. . . . It would be curious governm ental debility that should incapacitate the nation from directing its census enum era­ to r to ask an inhabitant concerning his business because for certain purposes he was only to be counted, and perhaps his gender ascertained. T he functions vested in the national governm ent authorize the obtainm ent o f the information dem anded by section 7 o f the census act, and the exercise o f the right befits an exalted and progressive sovereign power, enacting laws adapted to the needs of the vast and varied interests o f the people, after acquiring detailed know ledge thereof. . . . F or the national govern­ ment to know something, if not everything, beyond the fact that the population o f each state reaches a certain limit, is apparent, w hen it is considered w hat is the de­ pendence o f this population upon the intelligent action of the general governm ent. Sanitation, immigration, natural­ ization, the opening and developm ent o f the public domain; the laying o f taxes, duties, imposts, and excises, involving the adjustm ent o f duties for the purposes of revenue to the dom estic products o f every kind, and the taxation o f industries, . . . for these and similar purposes the governm ent needs each item o f information demanded by the census act, and such information, w hen obtained, requires the most careful study, to the end that the fulfill­ ment o f the governm ental function may be wise and useful. . . . A governm ent whose successful maintenance depends upon the education o f its citizens may not blindly legislate, but may exercise the right to proclaim its com ­ mands, after careful and full know ledge o f the business 418 life o f its inhabitants, in all its intricacies and activities. The dem urrer should be overruled. In United States v. Rickenbacker, 309 F.2d 462, 463 (2d Cir. 1962), cert, denied, 371 U.S. 962 (1963), also a case involving the validity of the questions contained in the census form, the court, per then Circuit Judge Thurgood Marshall, held: T he authority to gather reliable statistical data reason­ ably related to governmental purposes and functions is a necessity if modern governm ent is to legislate intelligently and effectively. United States v. Moriarity, 106 F. 886, 891-92 (C.C.S.D.N.Y. 1901). Cf. United States v. Sharrow, 309 F.2d 77 (2d Cir. 1962). The questions contained in the household questionnaire related to im portant federal con­ cerns, such as housing, labor, and health, and w ere not unduly broad or sweeping in their scope. The Supreme Court, in Wyman v. James, 400 U.S. 309, 321 (1971), referred with approval to the holding in Rickenbacker concerning the scope o f the census questions. N or can it be said that 13 U.S.C. §§ 5 and 141(a) contain excessive delegations o f statutory power, or that the census form, as prom ul­ gated, goes beyond the scope o f the delegation. It is true that the delegations contained in 13 U.S.C. § 5 and in the last sentence o f 13 U.S.C. § 141(a) are broad. It should be remembered, how ever, that these statutes involve an area in which Congress has legislated since 1790, and which legislation and practice have crystallized into wellknown standards that guide the discretion o f the Secretary o f Com ­ merce and the D irector o f the Bureau o f the Census. Fahey Mallonee, 332 U.S. 245, 250 (1947); see Yakus v. United States 321 U.S. 414, 42425 (1944). Hence the district court properly held in United States v. Little, 321 F. Supp. 388, 391 (D.Del. 1971): Congress has in 13 U.S.C. §§5 and 141(a) described the job to be done by the Secretary o f Com m erce and delin­ eated the scope o f his authority, viz. to “take a census of population unemployment, and housing (including utilities and equipment).” 2 T he fact that there is a zone for the exercise o f discretion by the Secretary in framing the questions which will elicit the necessary statistical infor­ mation within the scope o f the census to be undertaken does not render the delegation invalid. Yakus v. United States, 321 U.S. 414, 42 4 ^2 5 , 64 S. Ct. 660, 88 L. Ed. 834 (1944). F urther, in the absence o f a clear showing (which has not been made in this case) that the Secretary’s 2 This quotation is based on the language o f 13 U.S.C. § 141(a) prior to its 1976 am endm ent. 419 exercise o f discretion was irrational, arbitrary or capri­ cious, his actions will not be disturbed. W e have examined the 1980 census form. T he questions asked appear to be either within the scope o f the information traditionally asked in census forms or within the mandate o f the Joint Resolution o f June 16, 1976. It is therefore our conclusion that 13 U.S.C. §§5 and 141(a), as implemented by the 1980 census form, are valid laws o f the United States made in pursuance o f the Constitution. M oreover, in view of the statistical nature o f census operations, it is im perative that the census questionnaire be answ ered uniformly throughout the United States. State legislation that purports to excuse the inhabitants o f a state from having to answ er some o f the questions contained in the census forms would constitute “an obstacle to the accom plishm ent and execution of the full purposes and objectives o f Congress.” Accordingly, the state legislation must give way to the federal law. Hines v. Davidowitz, 312 U.S. 52, 67 (1941); Jones v. R ath Packing, 430 U.S. 519, 526 (1977). L arry A. H am m ond D eputy Assistant Attorney General Office o f Legal Counsel 420

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The Constitutionality of Cooperative International Law Enforcement Activities Under the Emoluments Clause The Emolum ents Clause o f the Constitution does not bar a proposed cooperative maritime counter­ narcotics operation, because the foreign naval personnel assisting U.S. law enforcement personnel would not hold an “ Office of Profit or Trust” under the United States. October 7, 1996 M e m o r a n d u m O p in io n f o r t h e D e p u t y A s s i s t a n t A t t o r n e y G e n e r a l C r im in a l D iv is io n This memorandum responds to your request for our advice on certain legal issues raised by proposed bilateral executive agreements providing for cooperative maritime counterdrug enforcement activities in the Caribbean. In particular, you have asked whether the agreements would be impermissible under the Emoluments Clause, Article I, Section 9, Clause 8 of the Constitution, and this opinion is con­ fined to that question. I. You have explained that the United States has had discussions with several European countries with interests in the Caribbean about possible executive agree­ ments addressing maritime counterdrug enforcement activities in that region. You have further explained the general structure of the proposed cooperative “ shiprider” program that would be established under the terms of the agreements: Each of the proposed agreements would have reciprocal provisions, under which, pursuant to standing or ad hoc permission, duly au­ thorized state vessels of each party would be able to enter the terri­ torial sea of the other to take drug law enforcement action against vessels not flying the flag of the coastal state, and against the per­ sons on board them. Such law enforcement action could include enforcement of the coastal state’s laws, (e.g., by seizing the vessel and apprehending the persons, for subsequent turnover to the coast­ al state’s enforcement authorities) or enforcement of the seizing state’s laws (in which case the vessel and persons would be taken out of the coastal state’s territorial of sea for prosecution in a terri­ tory of the seizing state).1 1 M emorandum for Richard Shiffrin, Deputy Assistant A ttorney G eneral, Office of Legal Counsel, from Mark M. Richard, Deputy Assistant Attorney G eneral, Criminal Division, Re: Request for Office o f Legal Counsel Views on Proposed Reciprocal Maritime Counterdrug Agreements at 1 (May 31, 1996) ( “ Criminal Division Submission” ). 346 The Constitutionality o f Cooperative International Law Enforcement Activities Under the Emoluments Clause As an example, you have provided the text of a draft agreement between the United States and the United Kingdom (acting on behalf of Bermuda, the British Virgin Islands, and other islands) concerning maritime counterdrug operations in the Caribbean (“ U.S.-U.K. Draft Agreement” or “ Agreement” ).2 The Agreement provides that the parties “ shall continue to cooperate in combatting illicit maritime drug traffic to the fullest extent possible.” 3 To that end, the parties agree to estab­ lish a joint law enforcement “ shiprider” program. In relevant part, the Agreement provides that the U.S. government may designate qualified Coast Guard officials to act as shipriders who may: a. embark on British law enforcement vessels; b. authorize the pursuit, by the British law enforcement vessels on which they are embarked, of suspect vessels and aircraft fleeing into United States waters; c. authorize the British law enforcement vessels on which they are embarked to conduct counter-drug patrols in United States waters; d. enforce the laws of the United States in United States waters, or seaward therefrom, in the exercise of the right of hot pursuit or otherwise in accordance with international law; and e. authorize the British law enforcement vessels on which they are embarked to assist in the enforcement of the laws of the United States seaward of the territorial sea of Anguilla, Bermuda, the Cay­ man Islands, Montserrat, and Turks and Caicos.4 The Agreement further provides that crew members of the British law enforce­ ment vessel may assist in the search and seizure of property, detention of a person, and use of force pursuant to the Agreement if expressly requested to do so by the U.S. shiprider. The provisions of the U.S.-U.K. Agreement are fully reciprocal; identical or equivalent terms apply to create a shiprider program for the United Kingdom. Congress has expressly authorized the President to enter into reciprocal maritime agreements with other countries in order to promote international cooperation to curtail drug traffic. See International Narcotics Control Act of 1992, Pub. L. No. 102-583, 106 Stat. 4914. 2 Agreement Between the Government o f the United States o f America and the Government o f the Kingdom o f the United Kingdom o f Great Britain and Northern Ireland on behalf o f the Governments o f Anguilla, Bermuda, the British Virgin Islands, the Cayman Islands, Montserrat, and the Turks and Caicos Islands, Concerning Maritime Counter-Drug Operations in the Western Atlantic and Caribbean Areas (Attachment A to Criminal Division Submis­ sion). 3 U.S.-U.K. Draft Agreement, article I. 4 U.S.-U.K. Draft Agreement, article 6. 347 Opinions o f the Office o f Legal Counsel in Volume 20 II. The Emoluments Clause, U.S. Const, art. 1, §9, cl. 8, provides: No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress accept of any present, Emolu­ ment, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. The Emoluments Clause was intended to protect foreign ministers, ambassadors, and other officers of the United States from undue influence and corruption by foreign governments. Governor Randolph explained the purposes underlying Arti­ cle 1, Section 9, Clause 8 in the Virginia Ratification Convention. He stated that it had been prompted by the gift of a snuff box by the King of France to Benjamin Franklin, then Ambassador to France. It therefore “ was thought proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments from foreign states.” 5 We understand that the question has arisen whether the U.S.-U.K. shiprider pro­ gram violates the Emoluments Clause by authorizing U.K. naval personnel, under instruction of the U.S. shiprider, to enforce U.S. law “ seaward of the territorial sea of Anguilla, Bermuda, the Cayman Islands, Montserrat, and Turks and Caicos.” 6 According to the Criminal Division Submission, see id. at 1-2, the concern regarding the Emoluments Clause stems at least in part from a prior opin­ ion of this Office that concluded that the Clause prevented foreign government personnel— who receive pay from their own government — from being designated U.S. federal law enforcement agents.7 We conclude that the U.K. naval personnel assisting U.S. law enforcement per­ sonnel under the shiprider program do not hold an “ Office of Profit or Trust under [the United States]” within the meaning of the Emoluments Clause, and, thus, the Emoluments Clause presents no bar to the cooperative maritime counterdrug operations as outlined in the Criminal Division Submission and the U.S.-U.K. Draft Agreement. The U.K. naval personnel owe no duty of loyalty to the United States that would be compromised by payment from the British Royal Navy. Rather, they are, at all times, operating as members of the Royal Navy, owing their duty to the Royal Navy, and participating in a cooperative endeavor with the United States pursuant to the terms of an agreement executed by their own government. If British personnel enforce U.S. law, it is merely deriv­ ative of their duty to obey the dictates of the government of the United Kingdom. 5 3 The Records o f the Federal Convention o f 1787, at 327 (Max Farrand, ed., rev. ed. 1966) ( “ Farrand” ). 6 U.S.-U.K. Draft A greem ent, article 6. 7 See Authority o f Foreign Law Enforcement Agents to Carry Weapons in the United States, 12 Op. O.L.C. 67 (1988) ( “ 1988 O pinion” ). 348 The Constitutionality o f Cooperative International Law Enforcement Activities Under the Emoluments Clause Simply put, British pay could not undermine the “ undivided loyalty” 8 of the British naval personnel to the United States because their ultimate loyalty is to Britain, not the United States. The Criminal Division Submission cites the 1988 Opinion of this Office, in which we concluded that “ the Emoluments Clause precludes the designation of foreign agents to enforce federal law in the absence of congressional consent.” 9 The 1988 Opinion concluded that “ [a]s a matter of general principle, anyone exer­ cising law enforcement powers on behalf of the United States must be viewed as holding an office of trust under the Emoluments Clause.” 10 We reject this sweeping and unqualified view. Until 1988, we had never interpreted the Emoluments Clause as applying to persons entirely outside the federal government. To be sure, we concluded in 1982 that the Emoluments Clause applies more broadly than just to the “ offices” cov­ ered by the Appointments Clause,11 and also reaches “ ‘lesser functionaries’ sub­ ordinate to officers.” 12 But such “ ‘lesser functionaries’ subordinate to officers” plainly are in the United States Government. While we understand the concern behind the 1988 opinion — certain govern­ mental functions are of such importance that their assignment to persons under obligation to a foreign government may raise serious problems — we see no basis for extending the Emoluments Clause to persons having no position or employ­ ment in the United States Government.13 First, the expressed purpose for the Emoluments Clause was to “ preserv[e] foreign Ministers & other officers of the U.S. independent of external influence.” 14 This formulation supports the view that the Emoluments Clause extends only to those, like foreign ministers, who have positions in the Government of the United States. Second, the ordinary mean­ ing of the term “ office” does not include assignments of duties to persons who ‘ Id. at 69. 9 Id. at 68. i0Id. at 69. *1See Application o f the Emoluments Clause o f the Constitution and the Foreign Gifis and Decorations Act, 6 Op. O.L.C. 156, 157-58 (1982). 12 See Application o f Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission, 10 Op. O.L.C. 96, 98 (1986). The Appointments Clause applies only to persons (1) in a position o f employment (as opposed to an independent contractor), (2) within the federal government (3) that carries significant authority. See Constitutional Limitations on Federal Government Participation in Binding Arbitration, 19 Op. O.L.C. 208, 2 1 0 11 (1995). The Emoluments Clause is not so limited. Most significantly, the Emoluments Clause applies regardless of whether the person exercises “ significant authority.” See Application o f the Emoluments Clause o f the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 158 (1982) ( “ The problem o f divided loyalties can arise at any level.” ). 13 In the same year we concluded that Civilian Aides to the Secretary o f the Army occupied an “ Office o f T rust” and thus were covered by the Emoluments Clause. In contrast to the U.K. shipriders, however, there was no question that, as a threshold matter, the Civilian Aides held an “ Office.” As the opinion explains, certain Army regulations governed Civilian Aides, the Aides were chosen by the Secretary according to specified criteria, and they were subject to security clearances and standards o f conduct. They served a “ term o f office” o f two years and enjoyed the “ responsibilities and privileges” o f the position until formal “ separation action” was taken by the Secretary. Memorandum for James H. Thessin, Assistant Legal Adviser for Management, United States Department o f State, from John O. McGinnis, Deputy Assistant Attorney General, Office o f Legal Counsel, Re: Application o f the Emolu ments Clause to a Civilian Aide to the Secretary o f the Army at 3 (Aug. 29, 1988). 14 2 Farrand at 389. 349 Opinions o f the Office o f Legal Counsel in Volume 20 hold no positions in the government. In interpreting the term even outside the context of the Constitution, the Supreme Court has stated that “ [a]n office is a public station conferred by the appointment of government” and that “ [t]he term embraces the idea of tenure, duration, emolument and duties fixed by law.” >s Assisting in the enforcement o f federal law does not, in itself, make a person an officer for purposes of the Emoluments Clause. If so, all persons, including state actors, who enforce federal law would be barred from accepting any “ emolu­ ment’’ from a foreign government. Thus, for example, state governors, local offi­ cers, and qui tam relators would be barred from accepting an appointment as an instructor in certain foreign public universities.16 Such a limitation, however, is not compelled by the text of the clause — in fact it is not even facially consistent with the text— and would do nothing to further the purpose of the Clause. Although the definition of an officer for the purpose of the Emoluments Clause is more expansive than for the Appointments Clause, this Office has drawn a distinction in the context of the Appointments Clause between individuals covered by that Clause and individuals who exercise authority that is delegated by federal law that is equally applicable to the Emoluments Clause. As we recently ex­ plained: It is a conceptual confusion to argue that federal laws delegating authority to state officials create federal “ offices,” which are then filled by (improperly appointed) state officials. Rather, the “ public station, or employment’ ’ has been created by state law; the federal statute simply adds federal authority to a pre-existing state office. Accordingly, the substantiality of the delegated authority is immate­ rial to the Appointments Clause conclusion. An analogous point ap­ plies to delegations made to private individuals: the simple assign­ ment of some duties under federal law, even significant ones, does not by itself pose an Appointments Clause problem.17 Similarly, we believe it is a conceptual confusion to argue that delegating authority to foreign officials creates federal “ offices,” which are then filled by (improperly paid) foreign officials. Rather, the office held is a foreign, not a U.S. office; the bilateral agreement merely adds additional authority to an existing foreign office. >’ M etcalf & Eddy v. Mitchell, 269 U.S. 514, 520 (1926). 16 C f Applicability o f Emoluments Clause to Employment o f Government Employees by Foreign Public Univer­ sities, 18 Op. O .L.C. 13 (1994) (concluding that foreign public universities are presumptively instrumentalities of foreign States under the Emoluments Clause). 17 The Constitutional Separation o f Powers between the President and Congress, 20 Op. O.L.C. 124, 142 n 5 2 (1996) (expressly superseding inconsistent prior opinions o f this Office regarding the Appointments Clause). 350 The Constitutionality o f Cooperative International Law Enforcement Activities Under the Emoluments Clause The assignment of some duties under an international executive agreement, even significant ones, does not by itself pose an Emoluments Clause problem. CHRISTOPHER H. SCHROEDER Acting Assistant Attorney G eneral Office o f Legal Counsel 351

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Legal Authority of the Department of the Treasury to Issue Regulations Indexing Capital Gains for Inflation The Department of the Treasury does not have legal authority to index capital gains for inflation by means of regulation. September 1, 1992 M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l Departm ent o f th e T r ea su ry You have asked for our opinion whether the Department of the Treasury (“Treasury”) has legal authority to amend its regulations to index capital gains for inflation. In connection with that request, you have provided us with your legal opinion concluding that Treasury does not have such author­ ity. O p in io n o f the G eneral C ounsel (A ug. 28, 1992) (“T reasury M emorandum”) In reaching that conclusion, you consider in detail, and spe­ cifically reject, arguments presented by the National Chamber Foundation in the form of a legal memorandum prepared by its private counsel, which concludes that Treasury has such legal authority. See Memorandum for Dr. Lawrence A. Hunter, Executive Vice President, National Chamber Founda­ tion, by Charles J. Cooper, et al. (Aug. 17, 1992) (“NCF Memorandum”). We have carefully reviewed the arguments set forth in the Treasury Memo­ randum and the NCF Memorandum. As a result of that review, and of our own research and analysis, we are compelled to agree with Treasury’s legal conclusion that Treasury does not have legal authority to index capital gains for inflation by means of regulation.1 I. Section 1001(a) of the Internal Revenue Code (“Code”) provides that “[t]he gain from the sale or other disposition of property shall be the excess 1 Were w e to disagree with your conclusion, and were Treasury to adopt a regulation o f the sort pro­ posed by the N CF M emorandum, we expect that the regulation would be challenged in court. Accord­ ingly, w e have consulted with the Department of Justice’s Tax Division, the litigating division that w ould be responsible for defending any such indexing regulation. That division concurs fully in the conclusions set forth herein. 136 of the amount realized therefrom over the adjusted basis provided in section 1011.” The general rule of section 1011(a) is that a property’s adjusted basis is its “basis (determined under section 1012 . . .), adjusted as provided in section 1016.” Section 1012 defines the basis o f property as generally “the cost of such property.” Although the term “cost” is not further defined in the Code, since the inception of the federal income tax system following ratification of the Sixteenth Amendment in 1913, Treasury has consistently interpreted the statutory term “cost” to mean price paid. Compare, e.g., T.D. 2090, 16 Treas. Dec. Int. Rev. 259, 273 (1914) (“The cost of property ac­ quired . . . will be the actual price paid for it . . . .”), with 26 C.F.R. § 1.1012-l(a) (1992) (“The cost [of property] is the amount paid for such property in cash or other property”). The current regulation dates from 1957. See T.D. 6265, 1957-2, 12 C.B. 463, 470. The sole issue presented by your request is whether Treasury may, by amending its regulations, reinterpret the statutory term “cost” to mean the price paid as adjusted for inflation. The NCF Memorandum argues that Treasury may do so. In making that argument, the Memorandum relies heavily on analysis of the Supreme Court’s decision in Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837 (1984).2 Chevron announced a two-step rule for courts to follow when reviewing an agency’s construction of a statute that it administers. The court must always first examine “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously ex­ pressed intent o f Congress.” Id. at 842-43. If, however, “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction o f the statute.” Id. at 843. As the Court noted in Chevron, “ ‘[t]he power o f an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.’” Id. (quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974)). But any such “gap” must be created by Congress: “assertions of ambiguity do not transform a clear statute into an ambiguous provision.” United States v. James, 478 U.S. 597, 605 (1986).3 2 See NCF M emorandum at 1 (“We must stress at the outset that our analysis o f this question depends heavily on the standard of judicial review that would apply to such a regulation [under Chevron]."); id. at 12 (“The fram ew ork for analyzing the issue under study is provided by the Supreme Court’s land­ mark Chevron decision.’’); id. at 21 (“In the terms of the Chevron doctrine, the question is w hether Congress has . . . delegated authority to the Treasury to interpret the statute.” ); id. at 23 ("Accordingly, the basic question under Chevron is whether the term ‘cost’ is amenable to a construction that takes account o f inflation.”). ’ Two members of the Supreme Court have suggested that an agency construction should prevail if the statute is merely “arguably ambiguous." See K M art Corp. v. Cartier, Inc., 486 U.S. 281, 293 n.4 (1988) (opinion of Kennedy, J., joined by White, J.). The N CF Memorandum's characterization o f the “arguably am biguous” standard as the view of “the Court” in that case, id. at 22 n i l , however, is plainly mistaken. Only two Justices embraced that view, and they expressly took issue with the refusal o f four other members o f the Court to recognize the alleged ambiguity. See K. M art Corp., 486 U.S. at 293 n.4. 137 The NCF Memorandum’s central argument rests on the proposition that “cost” is an ambiguous term. In essence, the Memorandum argues that Congress, in using that word, left a “gap” in the statutory scheme to be filled by Treasury in the exercise of its rulemaking power under the Code. Specifically, the NCF Memorandum asserts that the “meaning of ‘cost’ is sufficiently ambiguous to permit the exercise of administrative discretion” to interpret cost in a manner that takes account of inflation, id. at 23, and consequently that in light of Chevron, “a regulation indexing capital gains for inflation should and would be upheld judicially as a valid exercise of the Treasury’s interpretative discretion under the [Code],” id. at l.4 Chevron is a profound expression of principles that flow from the doc­ trine o f separation o f powers. The decision recognizes the appropriate roles o f each o f the three branches of government. Congress writes laws; the executive branch interprets and enforces them. Congress may, however, leave greater or lesser scope for Executive action. Thus, Congress often leaves to the executive branch the task of filling in the gaps in the statutory scheme through interpretation, and courts must then defer to the Executive’s reasonable interpretations. As the Chevron Court explained: 4 Although we agree with the conclusion o f the NCF Memorandum that Chevron provides the frame­ w ork for analyzing this issue, we note that there remains som e confusion in the case law on this point. In C ottage Savings A ss'n v. Commissioner, 499 U.S. 554 (1991), the Supreme Court considered a challenge to a Treasury regulation interpreting a provision o f the Code. The Court noted that Congress had given Treasury the broad power “to prom ulgate ‘all needful rules and regulations for the enforcement o f [the Internal Revenue C ode].’” Id. at 560 (quoting I.R.C. § 7805(a)). Based on that grant of authority, the Court held that it “must defer to [Treasury’s] regulatory interpretations of the Code so long as they are reasonable.” Id. at 560-61 (citing Mm'ona/ M uffler Dealers A ss'nv. United States, 440 U.S. 472,476-77 (1979)). T he C ourt made no reference to Chevron or its progeny. W hatever the significance o f the Court’s failure in Cottage Savings to cite Chevron, we have found no case that has expressly rejected application o f Chevron to regulations interpreting the Internal Revenue C ode. Som e low er court cases apply the National M uffler standard without considering Chevron, see, e.g., D avis v. United States, 972 F.2d 869 (1992), while others cite both cases without resolving any supposed inconsistency between them, see, e.g., American Medical A ss'n v. United States, 887 F.2d 760, 770 (7th Cir. 1989). Two courts of appeals, however, expressly applied Chevron to interpretative regulations under the Internal Revenue Code. See RJR Nabisco, Inc. v. United States, 955 F.2d 1457, 1464 (1 1th Cir. 1992); Peoples Federal Sav. & Loan Ass'n v. Commissioner, 948 F.2d 289, 299 (6th Cir. 1991). A third court of appeals noted the two different standards but declined to choose between them, because on the facts o f the case, either standard would have compelled the same result. Pacific First Fed. Sav. B ank v. Commissioner, 961 F.2d 800, 803 (9th Cir.) (noting, however, that much o f the reasoning in P eoples F ederal was persuasive), cert, denied, 506 U.S. 873 (1992). Cf. Georgia Fed. B ankv. Com m issioner, 98 T.C. 105,107-08,118 (1992) (rejecting Sixth Circuit’s conclusions in Peoples Federal, but applying Chevron principles). Even if we assum e that application o f the National M uffler test rather than the Chevron test can produce different results in some cases, as applied here National Muffler would not alter our conclu­ sion. The N ational M uffler standard requires that a regulation “harmoniz[e] with the plain language of the statute, its origin, and its purpose.” 440 U.S. at 477. T his permits not a plenary review by the court, but rather a determ ination whether the regulation is a “reasonable” interpretation of the statute. Id. at 476. Because the interpretation advanced in the NCF M emorandum is contrary to the plain language of the statute, it would fail the National M uffler test as well as the Chevron test. In addition, we note that the Treasury Memorandum cites several decisions in which the courts of appeals have continued to apply — in the wake of Chevron — the traditional distinction between “leg­ islative" and “ interpretive” regulations in determining how much deference is due Treasury’s interpre­ tation o f the Code. Treasury Memorandum at 41-42. Under this regime, “legislative” regulations generally are accorded greater deference than are "interpretive” regulations. We need not address the issue o f Chevron's impact upon this traditional distinction here, because in either case the plain meaning of the statute will control. We note, however, that the Supreme Court has not conclusively resolved this issue. 138 While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this po­ litical branch of the Government to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration o f the statute in light of everyday realities. 467 U.S. at 865-66. Chevron is thus a powerful analytical tool for the smooth administration of complex statutes and for the defense of agency actions under such stat­ utes. It is not, however, unlimited. Chevron also teaches that when Congress writes legislation in specific terms, if it does not leave policy choices to be resolved by an administrative agency, then Congress’s decision binds both the executive branch and the judiciary. To repeat: “If the intent o f Congress is clear, that is the end of the matter.” Id. at 842. In particular, Chevron does not furnish blanket authority for the regulatory rewriting of statutes whenever a dictionary gives more than a single definition for a statutory term or whenever some arguably relevant discipline assigns a specialized, technical meaning to such a term. Such a reading of Chevron would evis­ cerate the well-established rule of construction that statutes must be accorded their plain and commonly understood meaning.5 Indeed, it would lead to a legal regime in which many statutory terms with widely understood mean­ ings would be deemed “ambiguous.” In this regard, we fully concur in your conclusion that “ [i]f the plain meaning doctrine could be applied only to words that have only one conceivable meaning, it would have precious little utility as a principle to resolve conflicting interpretations of statutes.” Trea­ sury Memorandum at 7-8.6 ’ This rule of construction, like Chevron itself, sounds in the separation o f powers under the C onstitu­ tion and thus is an im portant limitation on judicial power. See In re Sinclair, 870 F.2d 1340, 1344 (7th Cir. 1989) (Easterbrook, J.). ‘ Accordingly, courts have generally been reluctant to treat the meaning o f a single word or a short phrase as other than a "pure question o f statutory construction" on which courts will not defer to agen­ cies. INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987). Courts have rejected agency interpretations o f such words or term s in favor of the courts' own reading of the statutory language. See, e.g., ConecuhMonroe Com m unity A ction A gency v. Bowen, 852 F.2d 581, 588-89 (D.C. Cir. 1988) (m eaning o f “term inate” ); Telecommunications Research & Action Ctr. v. FCC, 836 F.2d 1349, 1357-58 (D.C. Cir. 1988) (meaning of “system of random selection”); Santa Fe Pac. R.R. v. Secretary o f Interior. 830 F.2d 1168, 1174-80 & n.91 (D.C. Cir. 1987) (meaning of “lieu selection . . . right” ). Surprisingly, the N C F Memorandum nowhere discusses the plain meaning rule, despite its obvious importance to the legal analysis. The omission is significant, because the methodology adopted by the NCF M em orandum would undermine the rule. O f course, the availability o f two clearly inconsistent and equally plausible alternative dictionary definitions can in some circumstances “indicated that the statute is open to interpretation," National R.R. Passenger Corp. v. Boston <£ Me. Corp., 503 U.S. 407, 418 (1992), particularly if the overall statutory context of the provision at issue provides evidence that the agency’s proffered interpretation is a reasonable one, id. Clearly, however, the m ere existence of Continued 139 Chevron teaches that the inquiry into the meaning of a statutory term — including whether that meaning is ambiguous — is to be conducted by “em­ ploying traditional tools of statutory construction.” 467 U.S. at 843 n.9. See also IN S v. Cardoza-Fonseca, 480 U.S. at 449 (using “ordinary canons of statutory construction” to ascertain the meaning of statutory terms). These tools and canons include examination of “the plain language of the Act, its symmetry with [other relevant legal materials], and its legislative history.” Id. Additionally, “ [i]n ascertaining the plain meaning o f the statute, the court m ust look to . . . the language and design of the statute as a whole.” K M art Corp., 486 U.S. at 291. In reaching its ultimate conclusion that Treasury lacks the legal authority to index capital gains for inflation, your opinion considers and rejects the NCF M em orandum ’s arguments that the term “cost” is ambiguous. It con­ cludes that “ [t]he statute itself has a plain meaning which is clear and unambiguous: cost means the ‘actual price paid’ or ‘purchase price.’ ” Trea­ sury M emorandum at 1. See also, e.g., id. at 4-8. As set forth below, we also conclude that “cost” is not ambiguous in the context of determining gain or loss from the disposition of property. II. A. We must begin with what the Supreme Court has called a “fundamental canon o f statutory construction” that “unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42 (1979). The fundamental canon, of course, applies with full force to the tax laws. See, e.g., Crane v. Commis­ sioner, 331 U.S. 1, 6 (1947) (“ [T]he words of statutes — including revenue acts — should be interpreted where possible in their ordinary, everyday senses.”); Old Colony Trust Co. v. Commissioner, 301 U.S. 379, 383 (1937) (“The words of the statute are plain and should be accorded their usual significance in the absence o f some dominant reason to the contrary.”); ‘ (....continued) alternative dictionary definitions will not establish “ambiguity.” Were that so, the dictionary would be­ com e an irresistible engine for destroying the plain meaning rule. In practice, o f course, the courts rely on dictionary definitions to establish, rather than obscure, plain meaning. E.g., United States v. Rodgers, 4 66 U.S. 4 7 5 ,4 7 9 -8 0 (1 9 8 4 ) (rejecting “alternative definition” of term “jurisdiction” provided by dictio­ nary in favor o f “ [t]he m ost natural, nontechnical reading” provided by same source). See also M allard v. United Slates D istrict Court, 490 U S. 296 (1989), discussed infra. As we shall demonstrate, there is no am biguity in the term “cost” in its statutory context. The courts recognize that an “ambiguity” can properly be found only if there is a genuinely reason­ ab le and relevant alternative reading of a term , not a merely possible or arguable alternative reading. Only this past Term, for instance, the Suprem e Court found the meaning of the statutory phrase “person entitled to com pensation” to be "plain,” Estate o f Cowart v. Nicklos Drilling Co., 505 U.S. 469, 478 (1992), despite the dissenting Justices’ argum ent that it could bear two distinct interpretations, id. at 500-02 (Blackm un, J., dissenting). See also United States v. James, 478 U.S. 597 (1986) (holding that the provision o f the Flood Control Act creating immunity for “damage” was not ambiguous even though that term m ight arguably refer only to dam age to property rather than, as ordinarily understood, to dam age to both persons and property). 140 Helvering v. San Joaquin Fruit & Inv. Co., 297 U.S. 496, 499 (1936) (“Lan­ guage used in tax statutes should be read in the ordinary and natural sense.”).7 Therefore, in order to determine whether “cost” is an ambiguous statutory term, we must first attempt to ascertain the “ordinary, contemporary, com­ mon meaning” of that term. “Cost” first appears in the federal tax laws in the capital gains context in the Revenue Act of 1918.8 The Supreme Court has explained that statutory terms are best understood by reference to meanings common at the time of their adoption. Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617 (1987).9 Dictionaries that are roughly contemporaneous with the enactment o f that Act define “cost” as the price paid for a thing or service. See, e.g., Webster’s New International Dictionary o f the English Language 509 (1917) (“The amount or equivalent paid, or given, or charged, or engaged to be paid or given for anything bought or taken in barter or service rendered . . . .”) (emphasis added); 1 Bouvier Law Dictionary 689 (8th ed. 1914) (“The cost of an article purchased for exportation is the price paid, with all incidental charges paid at the place of exportation. Cost price is that actually paid for goods.”) (citations omitted); 2 A New English Dictionary on Historical Prin­ ciples 1034 (James A.H. Murray ed., New York, MacMillan & Co. 1893) (“That which must be given or surrendered in order to acquire, produce, accomplish, or maintain something; the price paid fo r a thing.”) (emphasis added). More recent dictionaries give the same definition. See, e.g., Am eri­ can Heritage Dictionary 301 (1976) (“An amount paid or required in payment for a purchase.”); Black’s Law Dictionary 345 (6th ed. 1990) (“Expense; 7 In United States v. Leslie Salt Co., 350 U.S. 383 (1956), the Supreme Court unanimously rejected Treasury’s “more recent ad hoc contention” as to how the statutory term “debenture” should be con­ strued, in favor o f Treasury’s “prior longstanding and consistent administrative interpretation.” Id. at 396. Treasury’s traditional interpretation, the Court held, was more “in accord with the generally understood meaning of the term ‘debentures.’ ‘The words of the statute [a stamp tax statute] are to be_ taken in the sense in which they will be understood by that public in which they are to take effect.'" Id. at 397 (citations omitted; emphases added; brackets in original). 8The Revenue Act o f 1918 was actually enacted into law early in 1919. It provided in part: “T hat for the purpose o f ascertaining the gain derived or loss sustained from the sale or other disposition o f p ro p erty ,. . . the basis shall be . . . the cost thereof.” Act of Feb. 24, 1919, ch. 18, § 202(a)(2), 40 Stat. 1057, 1060. Subsequent revenue acts, see infra note 16, adopted the formulation in effect today; in general, the basis of property is “the cost of such property.” In 1939, Congress began the practice of codifying the tax laws. The definition o f property’s basis as generally “the cost of such property” appears unchanged in all three codifications. See Internal Revenue Code of 1939, ch. 2, § 113(a), 53 Stat. 1, 40; Internal Revenue Code of 1954, ch. 736, § 1012, 68A Stat. 1, 296 (codified at I.R.C. § 1012); Internal Revenue Code o f 1986, Pub. L. No. 99-514, § 2, 100 Stat. 2085, 2095 (reenacting in relevant part the Internal Revenue Code of 1954). *See also M olzo f v. United States, 502 U.S. 301, 307 (1992) (relying upon “ [l]egal dictionaries in existence when the [Federal Tort Claims Act] was drafted and enacted” to ascertain the m eaning o f a term used in that statute). Thus, although the meaning of the term “cost" has not changed in the 74 years since the enactm ent o f the Revenue Act of 1918, we refer to authority contemporaneous with the first appearance o f “cost” in this context. Indeed, the definition of “cost” has remained essentially unchanged since the publication o f the first m odem English dictionary in 1755. In that year, Dr. Johnson defined “cost” principally as “ [t]he price o f any thing.” 1 Sam uel Johnson, A D ictionary o f the English Language (1755) (G eorg Olm s Verlagsbuchhandlung ed. 1968). 141 price. The sum or equivalent expended, paid or charged for something.”). Indeed, the only dictionary cited in the NCF Memorandum also gives as the primary meaning o f cost “the price paid to acquire, produce, accomplish, or maintain anything.” NCF Memorandum at 24 (quoting Random House Dic­ tionary o f the English Language 457 (2d ed. 1987)). The NCF Memorandum’s analysis of this dictionary meaning is reveal­ ing. The M emorandum first quotes the full definition: “ 1) the price paid to acquire, produce, accomplish, or maintain anything . . . , 2) an outlay or expenditure of money, time, labor, trouble, etc.: What will the cost be to me?, 3) a sacrifice, loss or penalty: to work at the cost of one’s health.” NFC M emorandum at 24. It then ignores the primary definition of cost — “price paid” — in favor of the third, obviously figurative, definition of cost as “loss” or “sacrifice.” 10 Id. To this, the Memorandum adds “expenditure” generally, rather than “expenditure of money,” which is the relevant concept when one is discussing the acquisition of property. The NCF Memorandum thus takes a perfectly clear definition of cost as applied to financial matters — price paid, or outlay or expenditure of money — and, without any discus­ sion or further mention of that clear definition, seeks to obfuscate it." The NCF Memorandum attempts to mix the figurative and literal mean­ ings o f “cost” by asserting that “ [a]ny such ‘loss,’ ‘sacrifice,’ or ‘expenditure’ needs to be ascribed a monetary value in order to determine the [taxable] gain realized” on the sale of an asset. Id. The Memorandum further asserts that the monetary value of a loss, sacrifice, or expenditure could be mea­ sured at other than the time it is incurred — at either the time of purchase or the time of sale. The Memorandum concludes: “We can discern nothing in the standard definition of ‘cost’ . . . suggesting that the historical ‘pur­ chase price’ measurement of monetary value must be used in preference to a m easurem ent that coincides with the sale of the asset.” Id. Finally, the M emorandum asserts that when cost to the taxpayer is measured at the time o f sale, it is legally appropriate to state cost in inflation-adjusted dollars to reflect the real impact of the purchase and sale on the taxpayer’s buying power. Id. at 25. We disagree with this line o f reasoning on several levels. First, as re­ flected in each of the dictionary definitions of “cost” set forth above, the 10 M oreover, after describing the third alternative dictionary definition of “cost” as “a standard defini­ tion," the N C F M em orandum suggests later on the same page that it is “the" standard definition, imply­ ing that the third definition is the only m eaning o f the term. NCF M emorandum at 24 (emphases added). T hus, the prim ary dictionary definition o f “cost” is spirited away. " T h e analysis set forth in the NCF Memorandum stands in marked contrast to the analysis employed by the Suprem e Court in sim ilar circumstances. In M allard v. United States District Court, the Court w as called on to interpret the word “request.” The Court first looked to “closest synonym s” in “every­ day speech,” namely, “ask,” “petition,” and “entreat.” 490 U.S. at 301 (citing Webster's New Interna­ tio n a l D ictionary 1929 (3d ed. 1981) and Black's Law D ictionary 1172 (5th ed. 1979)). Although the C ourt acknow ledged that the dictionary gave other entries — “require” and “demand” — it found “little reason to think that Congress did not intend ‘request’ to bear its most common meaning when it used the w ord in [the statute]." Id. (emphasis added). Indeed, despite the potential alternate meanings of request, the C ourt chose to give it “its ordinary and natural signification.” Id.; accord Perrin, 444 U.S. at 42. 142 first and most common meaning of the term is the price paid. “Price paid” obviously does suggest an “historical ‘purchase price’ measurement of mon­ etary value.” The primacy of this meaning is easily illustrated. If one were asked “How much did your car cost?” a response simply that “the car cost $10,000” would be considered truthful only if that amount were at least a close approximation of the actual price paid at the time of purchase. In contrast, a response based on some specialized meaning of the term “cost” (such as cost expressed in inflation-adjusted dollars or net of trade-in value) would be perceived as not responsive to the question. Indeed, such a re­ sponse would be viewed as truthful only if the respondent were careful to point out that he was using the term in other than its normal and plain meaning. Clearly, then, a specialized use of “cost” is appropriate only with the addition of some qualifying words signaling that the speaker is using the term in a manner not contemplated by normal usage.12 Second, even assuming that it is appropriate to look to an alternative, figurative definition to establish the ambiguity of a statutory term, the NCF Memorandum’s argument on this point cuts sharply against its conclusion. When monetary values are ascribed to terms such as “sacrifice” and “loss,” such values are normally measured when made or expended. For example, statements such as “I lost $5,000 on the stock market” and “I sacrificed $10,000 to help my neighbor” require the listener to assume that the speaker is talking about historical dollar “loss” or “sacrifice,” unless the speaker makes clear that those terms are being used in some way other than their ordinary meaning.13 Finally, even if the definitions of the term “cost” could be read to create some ambiguity with respect to that term, the NCF Memorandum fails to demonstrate the existence of any relevant ambiguity. That a particular term has two plausible definitions does not support an agency determination that rests on a third implausible definition. As shown above, none of the dictio­ nary definitions of “cost” refers to “purchase price adjusted for inflation.” 14 l! An additional analytical flaw in the NCF M emorandum’s treatment o f the definition of the term “cost” is its focus on the “cost to the taxpayer” rather than on the statutory phrase "cost o f such prop­ erty” in section 1012 of the Code. The former phrase may be read to include a broader range o f costs incurred by the ow ner in the course of ownership. For example, a statement of the “cost to X of owning a car” might include, in addition to the purchase price, costs associated with maintenance o f the car, insurance, taxes, etc. The statute however, refers to "cost o f . . . property." This phrase refers more naturally to the original price paid for the property: “What did the car cost?” 1J O ther relevant statutory terms also provide support for our rejection o f the NCF M em orandum ’s conclusion that “cost” as used in section 1012 may be read to refer to something other than “historical cost.” In ordinary usage, the term “gain” would be thought to describe an increase m easured from one point in time to another. Moreover, the term “basis” suggests that gain is measured from some fixed baseline, rather than from a floating indicator of relative value. 14 A possible alternative argument not advanced in the NCF Memorandum would be that, although the unambiguous meaning of “cost” is the original price paid, that definition is itself ambiguous in that it is not specified whether the price is to be stated in nominal or inflation-adjusted dollars. This argum ent suffers from several o f the same defects noted above with respect to the Memorandum’s attem pt to discover ambiguity in the word “cost.” The common meaning of the term “price” requires that it be stated in nominal dollars unless it is clear that the word is being used in some specialized sense. For example, in everyday speech the question “What was the price of your home when you bought it?” calls for an answer expressed in nominal dollars. 143 In addition to its argument based on the Random House Dictionary, the NCF Memorandum argues that “standard economic analysis” should be taken into account in determining the meaning of the term “cost.” Id. at 25. To this end, the Memorandum looks to uses of “cost” in economics treatises to establish the term ’s ambiguity. Id. For purposes of construing section 1012 o f the Code, however, the meaning to be given “cost” must be the “common and ordinary” meaning of that word — not its purported meaning in the jargon of economists. For example, the Tax Court has rejected arguments that taxpayers should not be taxed on their nominal capital gain, but on their “economic gain,” quoting Learned Hand’s statement that ‘“ [the] meaning [of income] is to be gathered from the implicit assumptions of its use in com­ mon speech.’ Thus, the meaning of income is not to be construed as an economist might, but as a layperson might.” Hellermann v. Commissioner, 77 T.C. 1361, 1366 (1981) (quoting United States v. Oregon-Wash. R.R. & Nav. Co., 251 F. 211, 212 (2d Cir. 1918)). In other words, “[t]he income tax laws do not profess to embody perfect economic theory.” Weiss v. Wiener, 279 U.S. 333, 335 (1929). We must therefore reject the NCF Memorandum’s attem pt to ascertain the meaning of cost under “standard economic analy­ sis,” as well as its repeated invocations of “economic reality” or “principles” of sophisticated economic analysis more generally, see, e.g., id. at 2, 8, 23-27, 68, 87, 88 n.47, in favor of the common and ordinary meaning of that term.15 E. The drafters of the Revenue Act of 1918 had available, in addition to the com m on and ordinary dictionary meanings of cost, Treasury’s contempora­ neous regulatory definition of cost. This definition, embodied in published Treasury Decisions, was “actual price paid.” See T.D. 2005, 16 Treas. Dec. Int. Rev. I l l , 112 (1914), restated, T.D. 2090, 16 Treas. Dec. Int. Rev. 259, 272-73 (1914). This definition, adopted by Congress in the 1918 Act, certainly also evidences the "ordinary, contemporary, common meaning” of cost.16 15The N C F M em orandum ’s contention that income from the sale of a capital asset can be determined for purpose o f the Code only by taking inflation into account is similar to the legion of “tax protestor” claim s that has so often been rejected by the courts. For example, in Stelly v. Commissioner, 804 F.2d 868, 869 (5th Cir. 1986), cert, denied, 48 0 U.S. 907 (1987), the taxpayers asserted that they were entitled to a 13 percent downward adjustment in their interest income on the ground that their interest incom e had been devalued by inflation T he Fifth Circuit ruled that there was “no basis in law or fact" for the inflation adjustm ent and concluded that Treasury “properly characterized the [taxpayers’] argu­ m ent as frivolous." Id. at 870. “ The assertion in the NCF Memorandum that “there is nothing in the legislative history of the 1918 A ct indicating that these Treasury Decisions were being adopted,” id. at 36, is incorrect. As discussed m ore fully below, the available legislative history from 1918 concerning this issue indicates that Con­ gress did adopt T reasury’s interpretation w hen it wrote “cost” into the Revenue Act of 1918. During the floor debate concerning a proposal to amend the 1918 legislation so as to virtually elim inate the effect o f inflation on capital gains, it was explained that the capital gains provision of the Act was “ merely enacting into law the rules and regulations now in force under the present statute.” 56 Cong. Rec. 10,349 (1918) (statem ent of Rep. Gamer) (em phasis added). See also Treasury M emorandum at 8-13. T reasu ry ’s in terpretation o f “cost" has not substantially changed since 1914. See 26 C.F.R. § Continued 144 That “cost” in the Code has this plain meaning has been recognized in several court cases. For example, the Tax Court has stated that “there is no statutory provision which allows for an upward adjustment to basis to reflect inflation or loss of the purchasing power of the dollar.” Ruben v. Commis­ sioner, 53 T.C.M. (CCH) 992, 994-95 (1987). The court also observed that “ [s]ections 1011 and 1012 of the Internal Revenue Code provide the general rule that a taxpayer’s basis in property shall be its cost. While it is true that such [government] reports do provide evidence of inflation, basis in prop­ erty is not affected by inflation.” Id. at 994 n.2.17 Similarly, in Crossland v. Commissioner, 35 T.C.M. (CCH) 262 (1976), the taxpayers claimed an “inflation loss deduction” of ten percent of their gross income. The court acknowledged that “[i]nflation is a fact” and that it “affects every taxpayer to some extent,” but it nonetheless disallowed the deduction: “Our tax structure is not set up to take into account the effects of inflation. Tax liability depends on income figures computed in terms of nominal dollars, without regard for inflation.” Id. at 262. In a passage that is especially relevant, the court noted: “The problem of inflation has caused several writers to explore the practicality of indexing; i.e., changing the tax structure to adjust for price level changes in computing taxable income. Although the suggestion might have merit, Congress has not seen fit to consider it . . . .” Id. at 263 (footnote omitted).18 “ (....continued) I.]0 1 2 -l(a ) (‘T h e cost [of property] is the amount paid for such property in cash or other property.”). This definition was adopted in T.D. 6265, § 1.1012-1 (a), 1957-2, 12 C.B. 463, 470, and has not been amended. Congress has repeatedly amended and reenacted the tax laws and has never disturbed T reasury’s consistent interpretation o f cost. See Revenue Act of 1921, ch. 136, § 202(a), 42 Stat. 227, 229; Rev­ enue Act of 1924, ch. 234, § 204(a), 43 Stat. 253, 258; Revenue Act of 1926, ch. 27, § 204(a), 44 Stat. 9, 14; Revenue Act o f 1928, ch. 852, § 113(a), 45 Stat. 791, 818; Revenue Act of 1932, ch. 209, § 113(a), 47 Stat. 169, 198; Revenue Act of 1934, ch. 277, § 113(a) 48 Stat. 680, 706; Revenue Act o f 1936, ch. 690, § 113(a), 49 Stat. 1648, 1682; Revenue Act of 1938, ch. 289, § 113(a), 52 Stat. 4 4 7 ,4 9 0 ; Internal Revenue Code of 1939, ch. 2, § 113(a), 53 Stat. 1, 40; Internal Revenue Code o f 1954, ch. 736, § 1012, 68A Stat. 1, 296 (codified at I.R.C. § 1012); Internal Revenue Code of 1986, Pub. L. No. 99514, § 2, 100 Stat. 2085, 2095 (reenacting in relevant part the Internal Revenue Code o f 1954). A court would likely deem significant Congress's repeated reenactment o f the tax laws without dis­ turbing Treasury’s interpretation of “cost.” Cottage Savings, 499 U.S. at 560-62. Accord United States V. Correll, 389 U.S. 299, 305-06 (1967); Helvering v. Winmill. 305 U.S. 79, 83 (1938). A court would also likely attach significance to Congress's repeated consideration of and refusal to enact proposals explicitly to index capital gains for inflation. See, e.g.. Bob Jones Univ. v. United States, 461 U.S. 574, 600-01 & n.25 (1983) (finding in Congress’s failure to enact any one of thirteen bills introduced to overturn the Treasury’s interpretation o f section 501(c)(3) o f the Code additional support for the con­ clusion that Congress acquiesced in that interpretation). For a recounting of these refusals, see infra note 27. "T h is key case is discussed by the NCF Memorandum only in a footnote, at the end o f a string cite, and the Tax C ourt's quoted conclusion is mischaracterized as the court’s “refus[al], in the absence o f clear statutory provisions to the contrary, to accept the taxpayer's construction of the [Internal Revenue Code] over the Treasury’s contrary construction.” NCF Memorandum at 70n.39. As noted in the text, however, the Ruben court’s conclusion rested expressly on its observation that there is no applicable “statutory provision” perm itting an upward adjustment to basis to reflect inflation. The Ruben court viewed the taxpayers’ argum ent to the contrary as so “frivolous" that it upheld the assessment of penalties against the taxpayers in the form o f additional tax. 53 T.C.M. (CCH) at 996. 11 The same footnote in the NCF Memorandum that mischaracterizes Ruben m ischaracterizes Crossland in the same way. The footnote also cites two other Tax Court cases. Neither of these cases turns upon C o n tin u ed 145 Other courts have also interpreted the term “cost” as meaning nominal purchase price. In Vandenberge v. Commissioner, 147 F.2d 167, 168 (5th Cir.), cert, denied, 325 U.S. 875 (1945), the court stated: “Section 113(a) of the Revenue Act o f 1938 provides that the unadjusted basis of property shall be the cost of such property. The solution to the question raised is as simple and clear as the language of the pivotal statute. The cost of the property was the price paid to acquire it.” See also Hawke v. Commissioner, 35 B.T.A. 784, 789 (1937) (“We must assume that Congress used the term ‘cost’ in its commonly understood meaning as the amount of money which a man pays out in the acquisition of property.”), rev’d on other grounds, 109 F.2d 946 (9th Cir.), cert, denied, 311 U.S. 657 (1940). C. Another of the traditional tools of statutory construction is an examina­ tion of “the language and design of the statute as a whole.” K Mart Corp., 486 U.S. at 291. The NCF Memorandum appears to recognize this rule of construction, but asserts flatly that there is nothing “in any other language of the [Code] suggesting that the historical ‘purchase price’ measurement of monetary value must be used in preference to a measurement that coincides with the sale of the asset.” Id. at 24. That assertion is mistaken. Many provisions of the Code that grant itemized deductions to individuals and corporations are intelligible only if “cost” under section 1012 is measured at the time an asset is purchased or at other times beside the time of sale. To cite an important example, the deduction for depreciation is calculated based on “the adjusted basis provided in section 1011, for the purpose of determining the gain on the sale or other disposition of such property.” I.R.C. § 167(c). Under section 1011, of course, the adjusted basis of an asset is determ ined by section 1012, which uses the term “cost.” Accordingly, the cost o f an asset must be known in every year in which the taxpayer would take a depreciation deduction. If Treasury reinterpreted cost to require that cost be measured at the time o f the asset’s sale, as the NCF Memorandum suggests it could, the taxpayer (and Treasury) would have no basis on which to calculate the proper deduction. See Treasury Memorandum at 52-53.19 "(....co n tin u ed ) “T reasury’s . . . construction” o f the Code, as the M emorandum asserts. Gajewski v. Commissioner, 67 T.C. 181 (1976), a ff'd , 578 F.2d 1383 (8th Cif. 1978), held that the “ the statutory gold content of the dollar is irrelevant for purposes of computing petitioner’s taxable income under the Code.” Id. at 195 (footnote om itted; em phasis added) 5/6/a v. Commissioner, 68 T.C. 422 (1977), a ff'd , 611 F.2d 1260 (9th Cir. 1980), held that the taxpayer w as “ not entitled to any adjustm ent in the gross incom e he received because o f any decline in value o f the dollar with respect to gold or silver." Id. at 431. Nothing in Sibla suggests that the holding was based on Treasury's interpretation of the Code, rather than on the c o u rt’s ow n interpretation. 19M any other deductions and credits are also defined in terms of “adjusted basis” and would suffer from the sam e problem . See I.R.C. §§ 42(d) (low income housing), 165(b) (losses), 166(b) (bad debts), 169(f)(1) (pollution control facilities), 171(b)(2) (bond premiums), and 612 (depletion). If cost for som e purposes must be determined at the tim e of acquisition, or at least at the time the deduction or credit is taken each year, while cost for purposes of calculating capital gains is to be determined at the tim e that an asset is sold (as proposed by the NCF M emorandum), the Internal Revenue Code would contradict itself. Such a forced contradiction would certainly undercut the reasonableness of any Trea­ sury regulation indexing capital gains for inflation. 146 Other structural characteristics of the Code strongly support the conclu­ sion that cost unambiguously means historical price paid, in nominal dollars not adjusted for inflation. As indicated above, “adjusted basis” is important in interpreting many provisions of the Code. The term appears in more than a hundred sections. By reference to section 1012, section 1011 provides that adjusted basis is generally the cost of property, “adjusted as provided in section 1016.” I.R.C. § 1011(a). Section 1016 is entitled “Adjustments to basis,” and it contains twenty-five separate items of adjustment.20 This list of congressionally determined adjustments to cost does not include an infla­ tion adjustment. Yet one would rationally expect that if Congress intended to provide such an adjustment in the Code, the adjustment would appear in section 1016 or in some other section of Part II of Subchapter O, entitled “Basis Rules of General Application.” It is, at best, unlikely that Congress would so carefully and precisely lay out the many mandatory and allowable adjustments to cost and at the same time load (or authorize Treasury to load) a very significant adjustment — for inflation — into the word “cost” itself. Moreover, under the doctrine of expressio unius est exclusio alterius (“the expression of one thing is the exclusion of another”), omissions in such instances are to be deemed to reflect the intent of the legislature. Thus, in TVA v. Hill, 437 U.S. 153 (1978), the Court ruled that TVA’s Tellico Dam project was subject to Endangered Species Act requirements, reasoning that, while Congress had included several “hardship” exemptions in the Act, none was provided for federal agencies. The Court concluded that “under the maxim expressio unius est exclusio alterius, we must presume that these were the only ‘hardship cases’ Congress intended to exempt.” Id. at 188. See also, e.g., United States v. Monsanto, 491 U.S. 600, 611 (1989) (inclu­ sion o f forfeiture exemption in another chapter of the same legislation “indicates . . . that Congress understood what it was doing in omitting such an exemption” from the chapter at issue); Letter for George U. Cameal, General Counsel, Federal Aviation Administration, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, at 2 (Oct. 6, 1971); 2A Norman J. Singer, Sutherland on Statutory Construction § 47.23, at 216-17 (5th ed. 1992). Because Congress has specified other adjustments to basis but has not included an adjustment for inflation in the computation of capi­ tal gains, it follows that Congress did not intend to permit indexing in the capital gains context. The force of this argument is even greater because Congress has, else­ where in the Code, carefully and precisely set forth a number of adjustments for inflation. Section 1(f), entitled “Adjustments in tax tables so that infla­ tion will not result in tax increases,” requires Treasury every calendar year to “increas[e] the minimum and maximum dollar amounts for each rate bracket . . . by the cost-of-living adjustment for such calendar year,” which “ Twenty-three of these are found in subsection (a)(l)-(9), (ll)-(24), and one each in subsections (c) and (d). 147 adjustment is defined by reference to the Labor Department’s published Con­ sum er Price Index for all-urban consumers. I.R.C. § 1(f)(2)(A), (3)-(5). At least eight other dollar amounts specified in the Code are indexed for infla­ tion by reference to section 1(0(3). Id. §§ 32(i) (earned income credit), 41(e)(5)(C) (research activity credit), 42(h)(6)(G) (low income housing credit), 63(c)(4) (standard deduction), 68(b)(2) (overall limitation on itemized de­ ductions), 135(b)(2)(B) (income from U.S. savings bonds used to pay higher education tuition and fees), 151(d)(4) (personal exemptions), and 513(h)(2)(C) (distributions o f low cost articles by tax-exempt organizations). Section 1012, o f course, contains no comparable provision. Again, we would expect that if Congress intended that asset costs be indexed for the calculation of capital gains, it would have done so explicitly and in the same manner as these many other indexing provisions.21 B. In an attempt to find some basis in the statute to support its proposed interpretation, the NCF Memorandum relies on the writings of certain tax theorists for the proposition that a general purpose o f the tax code is to treat similarly situated taxpayers alike (the principle of “horizontal equity”). Id. at 8, 26. From this general purpose, the Memorandum argues that the term “cost” should be read to mean inflation-adjusted cost in order to avoid the inequity inherent in taxing real and inflationary gains at the same rate. Although the principle of horizontal equity may be embodied as a general purpose of the Code, that general purpose cannot be taken to provide a statutory basis for indexing of capital gains. The Supreme Court has noted the dangers of attempting to argue from a general statutory purpose to a context-specific interpretation o f a particular statutory provision: 21 We note that the N CF Memorandum nowhere discusses the significance of section 1(0 of the Code and the provisions that refer to it, even though it is clearly of legal significance that Congress has provided for inflation-related indexation in some instances, but not in the case o f capital gains. The N C F M em orandum attempts to explain away congressional failure to index asset costs in the same m anner as tax brackets and other concepts in part because “the adverse effect o f inflation was am elio­ rated by the general capital gains tax preference” (a lower effective tax rate on capital gains), which “obviated the need and impetus, from 1921 until 1986, to establish a more accurate counter for infla­ tion, such as indexation.” Id. at S3. The argum ent, in fact, cuts against the N C F M em orandum 's conclusions. Accepting the argument on its face, it is obvious that to the extent C ongress established a preference for capital gains in order to reduce taxation o f gains that resulted m erely from inflation. Congress assumed that its tax laws other­ w ise treated cost as nominal purchase price with no adjustment for inflation. Moreover, as your opinion points out, Congress has consistently recognized that inflation introduces distortions into the calcula­ tion o f capita] gains. Treasury Memorandum at 13-15. It appears, then, that Congress has consistently m ade a deliberate policy choice not to index asset basis for inflation. As for the decision to repeal the capital gains preference in 1986, it was not taken in ignorance of the special character o f investment in capital assets, but with a conscious belief that the reduction in individual income tax rates would elim i­ nate any need to accord preferential treatm ent to capital gains. Id. at IS. In any event, long-term capital gains now enjoy a slightly preferential rate. See Omnibus Budget Reconciliation Act o f 1990, Pub. L. No. 101-508, § 11101(c), 104 Stat. 1388, 1388-404 to 1388-405 (amending I.R.C. § l(j)). 148 [N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice — and it frustrates rather than effectuates legislative intent simplistically to assume that whatever fur­ thers the statute’s primary objective must be the law. Rodriguez v. United States, 480 U.S. 522, 525-26 (1987). See also Board o f Governors v. Dimension Financial Corp., 474 U.S. 361, 373-74 (1986) (re­ jecting agency’s use of the “plain purpose” of legislation to support regulatory definitions not supported by the plain language of the statute). Even more generally, the NCF Memorandum suggests that the Court has deferred to agency interpretations of other terms that are “no more ambigu­ ous than the terms at issue here.” Id. at 22 n.l 1. This approach to statutory interpretation suffers from a glaring flaw: as the Supreme Court has recog­ nized in determining whether deference is owed, the court “must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” K Mart Corp., 486 U.S. at 291. Accordingly, even an identical term may be ambiguous in one context and not in another. For example, in Helvering v. Reynolds, 313 U.S. 428 (1941) — relied upon in the NCF Memorandum for the proposition that “acquisition” was found to be ambiguous, see id. at 22 n.l 1 — the Court found the term ambiguous only in the context presented. The Court noted that although the same term might be “unambiguous . . . as respects other transactions,” 313 U.S. at 433 (citing Helvering v. San Joaquin Fruit & Inv. Co., 297 U.S. 496 (1936)), it was in fact ambiguous in the context of remainder interests passing by be­ quest, devise, or inheritance, id. In San Joaquin, on the other hand, the Court, addressing real property acquired by lease with an option to buy, relied on the “plain import” of the word “acquired,” because “acquired” was not a term of art and “[l]anguage used in tax statutes should be read in the ordinary and natural sense.” 297 U.S. at 499. Moreover, the cases relied upon by the NCF Memorandum for this sug­ gestion themselves rely on factors that, when applied to the present case, undercut the Memorandum’s ultimate conclusions. The Memorandum’s re­ liance in Cottage Savings, for example, appears to ignore the fact that the Court, addressing the reasonableness of the agency’s interpretation, discussed at length the fact that the long-standing agency interpretation had been left undisturbed by Congress for many years, and stated that “Treasury regula­ tions and interpretations long continued without substantial change, applying to unamended or substantially reenacted statutes, are deemed to have re­ ceived congressional approval and have the effect of law.” Cottage Savings, 499 U.S. at 561. Here, as the NCF Memorandum recognizes, “Treasury’s consistent and long-standing interpretation of cost” has been “original cost.” 149 Id. at 77. See also INS v. Cardoza-Fonseca, 480 U.S. at 446 n.30 (“An agency interpretation of a relevant provision which conflicts with the agency’s earlier interpretation is ‘entitled to considerably less deference’ than a consis­ tently held agency view.”) (quoting Watt v. Alaska, 451 U.S. 259, 273 (1981)).22 Finally, the NCF Memorandum cites two cases as support for the propo­ sition that “ ‘cost’ or similar terms in other statutes have been construed to permit, or even require, taking account of inflationary effects." Id. at 27 (emphasis added). That proposition is, o f course, largely irrelevant to under­ standing the intent o f Congress in enacting the Internal Revenue Code. See, e.g., Prussner v. United States, 896 F.2d 218, 228 (7th Cir. 1990) (en banc) (pointing out that “ [different statutes passed by different Congresses often do use the same words to mean different things”). In any event, at least one o f the two cited cases simply offers no support for the Memorandum’s propo­ sition. Amusement & Music Operators Ass'n v. Copyright Royalty Tribunal, 676 F.2d 1144 (7th Cir.), cert, denied, 459 U.S. 907 (1982), concerned a statute that required the Copyright Royalty Tribunal to determine “reason­ able copyright royalty rates.” 17 U.S.C. § 801(b)(1). The court noted that the Tribunal had rejected an “individualized cost-based approach” and in­ stead relied on factors “not related to cost.” 676 F.2d at 1148.23 Accordingly, we agree with your conclusion that the Internal Revenue Code’s plain language and structure demonstrate that “cost” cannot be inter­ preted to allow an adjustment for inflation. III. Under the Supreme Court’s jurisprudence, the plain meaning of the word “cost” ends the inquiry: The task o f resolving the dispute over the meaning of [the statute] begins where all such inquiries must begin: with the language of the statute itself. In this case it is also where the inquiry should end, for where, as here, the statute’s language is plain, “the sole function of the courts is to enforce it ac­ cording to its terms.” The language before us expresses C ongress’ intent . . . with sufficient precision so that reference to legislative history . . . is hardly necessary. 22The C ourt's recent decision in Rust V’. Sullivan, 500 U.S. 173 (1991), which noted that an agency interpretation is entitled to som e deference even if it represents a break with prior interpretations, id. at 186-88, did not alter this rule. Subsequent to Rust, the Court again stated the general rule that “the case for judicial deference is less compelling with respect to agency positions that are inconsistent with previously held view s.” P auley v. BethEnergy Mines, Inc., 501 U.S. 680, 698 (1991). 23 Indeed, the statute specifically authorized the Tribunal “to make determinations concerning the ad­ ju stm e n t of reasonable copyright royalty rates.” 17 U.S.C. § 801(b)(1) (emphasis added). Pursuant to that authority the Tribunal allowed an inflation adjustment in 1987. In Chevron terms, the adjustm ent w as “affirm atively supported by the language of the Act.” 676 F.2d at 1155. By contrast, in the case of section 1012 o f the Internal Revenue C ode, Congress has provided only the definition of “basis" in term s o f “co st,” while om itting any general grant of authority to make inflation-linked adjustm ents to co st basis. 150 United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (citations omitted). Once it is determined as a textual matter that cost means “actual price paid” in nominal dollars, resort to the legislative history is unnecessary. As noted above, however, Chevron requires that the search for the m ean­ ing of a statutory provision be conducted by “employing traditional tools of statutory construction.” 467 U.S. at 843 n.9. These tools include the legis­ lative history of the provision. See also Cardoza-Fonseca, 480 U.S. at 449. Thus, even if we were to conclude that the plain language and the structure of the Code did not provide a clear meaning for the term “cost” in section 1012, we would be compelled to search the legislative record of the Revenue Act of 1918 to determine if that record could provide such meaning.24 Based on our review of that record, we agree with your conclusion that “the con­ temporaneous legislative history of the [Act] indicates that Congress intended the word ‘cost’ to mean the price paid in nominal dollars not adjusted for inflation.” Treasury Memorandum at 8 (capitalization omitted). As we have noted above, Treasury’s pre-1918 regulatory definition of cost was “actual price paid.” T.D. 2005, 16 Treas. Dec. Int. Rev. I l l , 112 (1914), restated, T.D. 2090, 16 Treas. Dec. Int. Rev. 259, 272-73 (1914). Contrary to the assertion in the NCF Memorandum that “there is nothing in the legislative history of the 1918 Act indicating that these Treasury D eci­ sions were being adopted,” id. at 36, the legislative history concerning this issue clearly indicates that Congress adopted Treasury’s interpretation when it wrote “cost” into the Revenue Act of 1918. Indeed, it was explained during floor debate concerning an amendment proposed by Representative Hardy, intended in part to eliminate the effects of inflation on capital gains, that the capital gains provision of the Act was “merely enacting into law the rules and regulations now in force under the present statute.” 56 Cong. Rec. 10,349 (1918) (statement of Rep. Gamer) (emphasis added). The NCF Memorandum, after extensively quoting from the debate sur­ rounding Representative Hardy’s proposed amendment to the capital gains provision of the Act, concedes that the legislative history “demonstrates that at least certain members of Congress were aware of the effects o f inflation on capital gains. It also can be argued to reflect an understanding o f Con­ gress that a property’s basis referred to the acquisition cost o f the property.” Id. at 44 (emphasis added). " T h e NCF M emorandum suggests that the proper scope and significance o f legislative history is un­ clear under Chevron. Id. at 31 n .l 5. To the contrary, we believe its relevance is quite clear. A court undertakes a Chevron inquiry employing traditional tools of statutory construction, of which legislative history is generally one See, e.g.. Chevron, 467 U.S. at 851-53, 862-64 (analyzing the legislative history of the Clean Air Act); NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 124-25 (1987) (analyzing the history of the Labor Management Relations Act). See also W agner Seed Co. v. Bush, 946 F.2d 918, 920 (D.C. Cir. 1991) ( Chevron requires deference “when the statute, viewed in light o f its legislative history and the traditional tools of statutory construction, is am bigu­ ous.” ), cert, denied, 503 U.S. 970 (1992). 151 Indeed, Congress must have been extremely well aware of the problems of inflation when it adopted the Act. In 1918, the year prior to the first statu­ tory use of “cost” to define basis in the capital gains context, consumer prices for all urban consumers increased by 18.0%. Economic Indicators Handbook 224 (Damey ed. 1992).25 In the previous year, inflation was nearly as high, at 17.4%, a dramatic rise from the 1% inflation rates in 1914 and 1915. Id. In view o f this World War I-related inflation, it is not surprising that a proposal intended to eliminate most of the effects of inflation on capital gains was debated at the time. In moving to strike the basis provision out of the Revenue Act entirely, Representative Hardy argued that the tax on gains would be unfair because “a piece of property bought in 1913, if its exchange value today is to be equal to its exchange value when it was bought, must bring in dollars and cents something like two times what it cost.” 56 Cong. Rec. at 10,349.26 See also id. (“ [If a] man today makes a sale of a tract of land which he bought in 1913 at the prices then prevailing, and if he sold it today at 100% apparent profit and reinvested the money he could not obtain any more property now than he could have obtained in 1913 with the money then paid for the same land.”). While noting that “the reasoning of [Representative Hardy] would apply to every conceivable source o f income,” not simply capital gains, id. at 10,350 (statement of Rep. Kitchin), opponents of the proposed amendment emphasized that the section dealing with capital gains did not change cur­ rent law. See id. (“This provision makes absolutely no change in existing law ”) (statement of Rep. Kitchin). The opponents also explained how current law operated. Representative Fordney thus stated that if a taxpayer purchased property ten years ago and then sold it, the appropriate measure of the gain would be “ [t]he difference between the price paid fo r it 10 years ago and the price you sell it for today.” Id. at 10,351 (emphasis added). Representative Kitchin, the Chairman of the House Ways and Means Com­ mittee, further explained that “ [i]f you bought a ship in 1916 for $100,000 and sell it in 1918 at $200,000, or if you bought Bethlehem stock or United States Steel Corporation stock in 1915, your income is the difference be­ tween the purchase and selling price, and that is the only rule under which you can administer the law.” Id. at 10,350-51. The hypotheticals posed by Representatives Fordney and Kitchin are particularly revealing since the gains described would, to a large degree, have been attributable to the dramatic wartime inflation described above. No one at the time disputed these char­ acterizations of current law, and the statements were consistent with the earlier Treasury Decisions quoted above. Ultimately, Representative Hardy withdrew his proposal to strike the basis provision and proposed an amendment 15 The 1918 Act was adopted in 1919. S ee supra note 8. :s Representative Hardy was half right. Consumer prices had increased slightly more than 50% from 1913 to 1918, from an index o f 9.9 to an index of 15.1. Economic Indicators Handbook at 224. 152 that would measure capital gain only from the beginning of the year in which the capital asset was sold. Id. at 10,351, 10,354. Congress was apparently not persuaded to remedy the effects of inflation on income derived from capital gains in this way, and the proposal was rejected. Id. The NCF Memorandum attempts to deny the force of its own reading of the legislative history by asserting that the 1918 Act’s legislative history “simply does not speak directly and clearly to the ‘precise question at is­ sue.’” Id. at 46-47 (quoting Chevron, 467 U.S. at 843 n.9). For the reasons set forth above and in the Treasury Memorandum, we disagree. In any event, as the NCF Memorandum recognizes, the legislative history is consis­ tent with the ordinary meaning of the term “cost” as meaning historical price paid, id. at 44, and clearly demonstrates that Congress legislated with full knowledge of the effect of current law and of the impact of inflation on capital gains. For these reasons, we concur in your conclusion that the legislative record evidences a clear congressional intent that “cost” be given its common and ordinary meaning, that is, price paid in nominal dollars not adjusted for inflation. Treasury Memorandum at 8-13. IV. The NCF Memorandum argues that Treasury’s adoption of a capital gains indexing regulation is not foreclosed by Congress’s repeated reenactments of the Internal Revenue Code with knowledge of Treasury’s interpretation of “cost” to mean the actual price paid (the “reenactment” doctrine), or by Congress’s rejection of statutory indexing proposals (the “acquiescence” doc­ trine). See NCF Memorandum at 75-87. We have discussed these doctrines only briefly, see supra note 16, because they have application only if Trea­ sury has discretion under the statute to reinterpret “cost” — that is, only if “cost” is ambiguous. In Parts II and III, we have demonstrated that it is not. In places, however, the NCF Memorandum appears to make an affirma­ tive argument in support of regulatory indexing of capital gains based on recent votes of either the Senate or the House on legislative proposals to index capital gains: [W ]hile C ongress has not actually enacted a capital gains indexing proposal, the legislative history o f C ongress’ con­ sid eratio n o f such proposals reveals, if anything, that C ongress fa vo rs the concept o f indexing capital gains. Indeed, . . . indexation measures have passed in recent ses­ sions of both the Senate and the House . . . . Congress’ deliberations on the issue to date suggest that a ma­ jority of both Houses would welcome a Treasury reinterpretation of “cost” to take account of inflation. 153 NCF Memorandum at 84. See also id. at 3 (“[T]he legislative history of C ongress’ consideration of such proposals reveals, if anything, that Congress fa vo rs the concept of indexing capital gains.”). This reasoning is substan­ tially flawed for several reasons. First, as the Treasury Memorandum points out, although Congress has repeatedly considered proposals explicitly to index capital gains for infla­ tion, it has never enacted them. Id. at 15-18.27 It is a strange twist of logic to conclude that because Congress has rejected a proposal many times, Con­ gress therefore favors that proposal. Second, even assuming that a majority o f both Houses would in fact be willing to enact such legislation, it by no means follows that they would welcome an administrative agency’s decision to bring about a similar outcome by regulatory action alone. M ore fundamentally, the attitude of a majority of the members of the current Congress is completely irrelevant to the question whether an agency’s interpretation of existing law is or is not correct. Like the courts, the execu­ tive branch must interpret the law as it finds it, not base its interpretations on conjecture as to how Congress might act. Thus, although agencies must follow the “will of Congress” in interpreting statutes, “[t]he ‘will of Con­ gress’ we look to is not a will evolving from Session to Session, but a will expressed and fixed in a particular enactment.” West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 101 n.7 (1991). Furthermore, it is an elementary principle o f constitutional law that the policy preferences of individual mem­ bers of Congress, even if they happen to comprise majorities of both Houses, are legally meaningless until they crystallize into “bicameral passage fol­ lowed by presentment to the President.” INS v. Chadha, 462 U.S. 919, 954-55 (1983). See also NCF Memorandum at 80 n.43. The history of capital gains taxation also shows that Congress was aware o f the effects o f inflation but chose to deal with them in a manner other than indexation. The Revenue Act of 1918 did not distinguish between capital and ordinary income for purposes of tax rates. In 1921, however, Congress enacted the first preference for capital gains income. Compare Revenue Act o f 1921, ch. 136, § 206(b), 42 Stat. 227, 233 (taxing capital gains at a m aximum o f 12.5%) with id., § 211(a)(1), 42 Stat. at 233-35 (taxing ordi­ nary income at rates as high as 65%). Your opinion concludes that “[o]ne of the policy reasons most often cited for this preferential treatment was the 21 On at least four occasions since 1978, indexation legislation has been approved by either the Senate or the H ouse, only to be rejected in conference. See Revenue Act of 1978, H.R. 13511, 95th Cong., 2d Sess. § 404 (1978) (approved by House), rejected by H.R. Conf. Rep. No. 1800, 95th Cong., 2d Sess. 258 (1978); Tax Equity and Fiscal Responsibility Act of 1982, H.R. 4961, 97th Cong., 2d Sess. § 310A (1982) (approved by Senate), rejected by H.R. Conf. Rep. No. 760, 97th Cong., 2d Sess. 478 (1982); O m nibus Budget Reconciliation Act of 1989, H.R. 3299, 101st Cong., 1st Sess. § 11961 (1989) (ap­ proved by House), rejected by H.R. Conf. Rep. No. 386, 101st Cong., 1st Sess. 664 (1989); Tax Fairness and Econom ic G rowth Act o f 1992, H.R. 4210, 102d Cong., 2d Sess. § 2101 (1992) (approved by H ouse), rejected by H R. Conf. Rep. No. 461, 102d Cong., 2d Sess. 356, 364 (1992). 154 desire to mitigate the impact of inflation on the taxation of capital gains.” Treasury Memorandum at 13. See also id. n. l 6 (citing committee hearings on the 1921 Act); NCF Memorandum at 48-49 & n.25 (same). It is apparent that the draftsmen of the 1921 Act did not intend that “cost” reflect an adjustment for inflation. In reenacting the tax laws, they chose to mitigate the effects of inflation on capital assets by granting prefer­ ential treatment to capital gains — not by indexing cost. This choice reflects their understanding that without some special treatment, capital gains would be peculiarly subject to the effects of inflation under the tax laws. Congress’s decision to provide preferential treatment for capital gains assumed that the Treasury’s regulatory interpretation of “cost” as “actual price paid” was valid and would remain in effect.28 As recently as 1978, Congress was again faced with a choice in dealing with the impact of inflation on the values of capital assets. In the course of enacting the Revenue Act of 1978, the House adopted a provision expressly indexing the basis of such assets. The Senate, on the other hand, rejected this approach, choosing instead to increase the capital gains exclusion from 50% to 60%. The Finance Committee’s explanation for this choice is in­ structive: [A]n increased capital gains deduction will tend to offset the effect of inflation by reducing the amount of gain which is subject to tax. Thus, by increasing the deduction, taxable gain should be reconciled more closely with real, rather than merely inflationary gain. However, since the deduction is con­ stant, unlike the automatic adjustments generally provided for in various indexation proposals, it should not tend to exacer­ bate inflationary increases. S. Rep. No. 1263, 95th Cong., 2d Sess. 192 (1978). The bill as finally enacted into law adopted the Senate’s version. Pub. L. No. 95-600, § 402(a), 92 Stat. 2763, 2867 (1978). Whenever Congress has been faced with a choice of different methods for dealing with the impact of inflation on capital gains, it has chosen some means other than indexation. Indeed, it has specifically rejected indexation in favor of the capital gains preference. This fact reflects both the under­ standing that indexation was not allowed under the Code in the first place and the intent o f Congress to keep it that way. We believe that Congress’s “ The capital gains preference continued to be a major feature of the tax laws until 1986. Since the enactm ent of the 19S4 Code, this preference was accomplished in part by allowing individual taxpayers to exclude from gross income a substantial percentage of their capital gain income. See, e.g., 26 U.S.C. § 1202 (1982) (allowing individuals to dfduct 60% of their net capital gain from gross income). Sec­ tion 1202 was repealed in 1986. Pub. L. No. 99-514, § 301(a), 100 Stat. 2085, 2216 (1986). 155 continued affirmation of an inflation-mitigating mechanism other than index­ ation — specifically, preferential treatment — together with Treasury’s consistent interpretation of “co st” as not allowing indexation, makes this a particularly com pelling case for concluding that Congress has ratified Treasury’s interpretation of the Code.29 V. The NCF Memorandum advances two other arguments, both of which are unavailing. First, the Memorandum attempts to show that “the Treasury has historically taken a flexible view toward its own interpretation of basis and cost.” Id. at 29. Yet the supposed instances of this “flexible” view are mischaracterized. The NCF Memorandum claims that because the 1918 Treasury regula­ tions addressing the capital gains treatment of property acquired by gift equated “cost” with fair market value of the property at the time of the gift, cost “was completely divorced from concepts of historical or original cost.” Id. at 38. This is mistaken; cost was clearly tied to the fair market value at the time the asset was acquired by gift or bequest. Rather than altering the time at which cost is calculated, as the Memorandum argues, the regulations merely substituted an appropriate measure of value where the taxpayer in question had not paid anything for the asset. See Hartley v. Commissioner, 295 U.S. 216, 219 (1935) (“T he use of the word cost does not preclude the computation and assessment o f the taxable gains on the basis of the value of property [at the time of acquisition] rather than its cost, where there is no purchase by the taxpayer, and thus no cost at the controlling date.”).30 Simi­ larly, although Congress subsequently rejected fair market value at the time o f the gift in favor o f the donor’s original cosf, see Revenue Act of 1921, ch. 136, § 202(a)(2), 42 Stat. 227, 229, Congress never deviated from tying the basis to original cost — the only question was whose original cost was appropriate. The NCF Memorandum also cites the treatment of depreciation and deple­ tion in the 1918 regulations as an example o f Treasury’s flexibility in defining cost. Id. at 40. Those regulations, however, reflected flexibility not in defining “cost” but in determining what “property” the taxpayer owned. When those regulations were challenged in United States v. Ludey, 274 U.S. 295 ” There is evidence that when Congress eliminated the capita! gains preference in 1986, its decision not to replace the preference w ith indexation was deliberate. As the NCF M emorandum points out, both the T reasury’s public tax proposals in 1984 and the President’s proposals to the Congress in 1985 recom­ m ended som e form o f indexation Id. at 57-58. Moreover, the problem o f inflation and the need to index capital gains in the absence o f preferential treatment were the subject o f congressional hearings. See, e.g.. Tax R eform A ct o f 1986, Part IV: H earings Before the Senate Comm, on Finance, 99th Cong., 2d Sess. 61 (1986). “ In any event, to reason from the treatm ent of gifts in 1918 that the indexation o f capital gains is appropriate, the N CF Memorandum w ould have to demonstrate the legal propriety o f indexing the value o f a gift from the date its cost is determined. T here i$, no suggestion that such an adjustm ent w ould have been perm issible. 156 (1927), the Supreme Court observed that the depreciation allowance was based on the theory that “by using up the [property], a gradual sale is made of it,” and. thus “[t]he depreciation charged is the measure of the cost o f the part which has been sold.” Id. at 301. See also id. at 302 (depletion charge “represents the reduction in the mineral contents of the reserves from which the product is taken”). The Court never deviated from its treatment o f cost as a bearing on the price paid: “[t]he amount of the depreciation must be deducted from the original cost of the whole [property] in order to deter­ mine the cost of that disposed of in the final sale of properties.” Id. at 301 (emphasis added). See also Treasury Memorandum at 30 n.30. The NCF Memorandum concedes as much: “the regulations provided that the origi­ nal cost of property had to be adjusted downward for any depreciation or depletion taken on the property by the taxpayer prior to its sale.” Id. at 40 (emphasis added). Nothing in the regulations suggested that the starting point for this calculation was not original cost in nominal dollars. Second, the NCF Memorandum reads Ludey as upholding “the Treasury’s discretion to fill in gaps left by Congress in the [Code’s] capital gains provi­ sions, specifically in the concept of ‘cost.’” NCF Memorandum at 66. That reading is flawed in several respects. First, the Ludey Court did not rely on the Commissioner’s regulatory interpretation; it instead held that “the rev­ enue acts should be construed as requiring deductions for both depreciation and depletion when determining the original cost of oil properties sold.” 274 U.S. at 300 (emphasis added). By its own terms, therefore, Ludey is hot a decision that upholds agency discretion, but a decision in which the Court construed the statute for itself. See also id. at 303-04 (rejecting the Commissioner’s method for determining the appropriate deduction). The Treasury regulations in question in Ludey did not fill in “gaps” in the statutory term “cost;” rather, they reconciled two potentially contradictory statutory provisions. Treasury’s interpretation of “cost” as requiring adjust­ ments for depreciation was necessary to harmonize the statutory provision taxing capital gains with the statutory provision granting annual deductions for depreciation — that is, to prevent taxpayers from receiving tax benefits twice. See id. at 301 (“Any other construction would permit a double deduc­ tion for the loss of the same capital assets.”). The Court avoided this double deduction based on indications in the statute that no such deduction was intended.31 For example, the Court noted that Congress intended the allow­ ance for depreciation to reflect a “gradual sale” of the property. Thus, the “depreciation charged is the measure of the cost o f the part which has been sold.” Id. at 301 (emphasis added). Similarly, the Court determined that because depletion allowances were limited by statute to the amount of the 31 C f United States v. Skelly Oil Co., 394 U.S. 678, 695 (1969) (Stewart, J., dissenting) (“In prior decisions [including Ludey) disallowing what truly were 'double deductions,' the Court has relied on evident statutory indications, not just its own view of the equities, that Congress intended to preclude the second deduction/’)- 157 capital invested, the deduction was meant “to be regarded as a return of capital, not as a special bonus for enterprise and willingness to assume risks.” Id. at 303. In the case of indexing for purposes of determining capital gain, there is no conflict in statutory provisions that indexing would resolve. Indeed, as explained above, any interpretation that measures cost at the time of sale rather than purchase would create a positive conflict with provisions allow­ ing deductions for depreciation and other items. VI. For all the reasons set forth above, we conclude, as did the Treasury Department, that the term “cost” as used in section 1012 is not ambiguous.32 TIMOTHY E. FLANIGAN Assistant Attorney General Office o f Legal Counsel 32 Because we conclude that in using the term "cost,” Congress has left no “gap” for Treasury to fill, no further inquiry is appropriate. We need not address under step two of Chevron whether a proposed Treasury regulation indexing capital gains for inflation would be a “reasonable” interpretation of sec­ tion 1012 o f the Code. 467 U.S. at 844. 158

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Censorship of Transmission of Trotzky Speech From Mexico The Federal Communications Commission does not have statutory authority to censor the telephone transmission from Mexico into the United States of a speech by Leon Trotzky. February 8, 1937 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL Reference is made to your request of this date that I investigate the possible statutes relative to the proposed speech to be made tomorrow night in Mexico by Leon Trotzky and transmitted from that place to New York City by telephone. There do not seem to be any statutes applicable to the situation. Sections 137 and 155 of title 8, U.S. Code, relate to certain seditious utterances, but these sections apply only to aliens. They provide for the exclusion of aliens known to entertain certain views on political questions and for the arrest and deportation of aliens who utter seditious statements after admission. They also provide for fine or imprisonment of such aliens if, after such arrest and deportation or after exclusion, they again attempt to enter the United States. The Federal Communications Act gives no authority to the Federal Communications Commission to censor telephone communications. Section 326 of that Act, which relates to censorship of radio communications, is significant. That section reads: Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication. No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication. 47 U.S.C. ยง 326. Section 33 of title 50, U.S. Code, makes it unlawful willfully to cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States, or to obstruct the recruiting or enlistment service of the United States to the injury of the service of the United States, and section 34 of said title makes a conspiracy to violate the provisions of section 33 unlawful; but these sections apply only when the United States is at war. 47 Supplemental Opinions of the Office of Legal Counsel in Volume 1 The nearest approach to the subject of any statute that I have been able to find is that of section 4 of title 18, U.S. Code, which provides: Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be imprisoned not more than ten years or fined not more than $10,000, or both . . . . (Emphasis supplied.) If this section is applicable, those who assist in the transmission and delivery of the speech in New York City would probably be guilty of violating it. I am of the opinion, however, that it is not applicable to the present situation, as it is not probable that the speech will incite to rebellion or insurrection. There would seem to be a field here in which the privilege of free speech may be abused, but apparently there is no present statute prohibiting such abuse. Until such time as Congress shall see fit to enact legislation on the subject, it would seem that the only remedy available is through diplomatic relations with the country from which the abuse emanates. GOLDEN W. BELL Assistant Solicitor General 48

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June 14, 1979 79-41 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT Chairman of the Federal Home Loan Bank Board—Reorganization Plan No. 3 of 1977 (5 U .S.C . App.)—Resignations—The President’s Authority to Redesignate a Member as Chairman This responds to the oral request of your Office for our views on the Pres­ ident’s power to redesignate a member of the Federal Home Loan Bank Board. The Board, established by Reorganization Plan No. 3 of 1947 (5 U.S.C. App.; see also 12 U.S.C. § 1437), consists of three members ap­ pointed by the President by and with the advice and consent of the Senate. On April 20, 1979, the Chairman tendered his resignation effective June 1, 1979. On May 1, 1979, the President accepted the resignation as Chair­ man and as a member of the Board. In a letter dated June 1, 1979, he notified the President that he had submitted his resignation only as Chair­ man, but not as a member. However, he expressed his willingness to con­ tinue to serve as Chairman until June 29, 1979, or until such earlier date as his resignation as a member and Chairman would be tendered. By letter dated June 6, 1979, the President noted that the letter of resignation of April 20 had applied only to the position of Chairman and not to member­ ship on the Board. The President thereupon redesignated the member as Chairman of the Board until such time as his resignation as a member and Chairman was tendered. It is our opinion that the President was authorized to redesignate the member as Chairman because he still was a member of the Board at that time. It is true that the President’s letter of May 1, 1979 stated that he ac­ cepted the resignation as Chairman and member. But the resignation was only as Chairman and not as a member. The President, of course, has the power to remove a purely executive officer in the absence of a resignation. Myers v. United States, 272 U.S. 52 (1926). However, in view of the bipar­ tisan nature and the regulatory functions of the Board, it is questionable 248 whether the President has the same unrestricted power with respect to the members of the Board. Humphrey’s Executor v. United States, 295 U.S. 602 (1935); Wiener v. United States, 357 U.S. 349 (1958). In any event, an intent to remove the Chairman as a member of the Board would be incon­ sistent with the highly complimentary and appreciative nature of the Presi­ dent’s letter of May 1, 1979. The “ acceptance” of the resignation as a member, therefore, was at most in the nature of a misunderstanding without any legal effect and did not terminate membership on the Board. Accordingly, the member was eligible to be redesignated as Chairman. L arry A . H am m ond Deputy Assistant Attorney General Office o f Legal Counsel 249

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June 14, 1979 79-41 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT Chairman of the Federal Home Loan Bank Board—Reorganization Plan No. 3 of 1977 (5 U .S.C . App.)—Resignations—The President’s Authority to Redesignate a Member as Chairman This responds to the oral request of your Office for our views on the Pres­ ident’s power to redesignate a member of the Federal Home Loan Bank Board. The Board, established by Reorganization Plan No. 3 of 1947 (5 U.S.C. App.; see also 12 U.S.C. § 1437), consists of three members ap­ pointed by the President by and with the advice and consent of the Senate. On April 20, 1979, the Chairman tendered his resignation effective June 1, 1979. On May 1, 1979, the President accepted the resignation as Chair­ man and as a member of the Board. In a letter dated June 1, 1979, he notified the President that he had submitted his resignation only as Chair­ man, but not as a member. However, he expressed his willingness to con­ tinue to serve as Chairman until June 29, 1979, or until such earlier date as his resignation as a member and Chairman would be tendered. By letter dated June 6, 1979, the President noted that the letter of resignation of April 20 had applied only to the position of Chairman and not to member­ ship on the Board. The President thereupon redesignated the member as Chairman of the Board until such time as his resignation as a member and Chairman was tendered. It is our opinion that the President was authorized to redesignate the member as Chairman because he still was a member of the Board at that time. It is true that the President’s letter of May 1, 1979 stated that he ac­ cepted the resignation as Chairman and member. But the resignation was only as Chairman and not as a member. The President, of course, has the power to remove a purely executive officer in the absence of a resignation. Myers v. United States, 272 U.S. 52 (1926). However, in view of the bipar­ tisan nature and the regulatory functions of the Board, it is questionable 248 whether the President has the same unrestricted power with respect to the members of the Board. Humphrey’s Executor v. United States, 295 U.S. 602 (1935); Wiener v. United States, 357 U.S. 349 (1958). In any event, an intent to remove the Chairman as a member of the Board would be incon­ sistent with the highly complimentary and appreciative nature of the Presi­ dent’s letter of May 1, 1979. The “ acceptance” of the resignation as a member, therefore, was at most in the nature of a misunderstanding without any legal effect and did not terminate membership on the Board. Accordingly, the member was eligible to be redesignated as Chairman. L arry A . H am m ond Deputy Assistant Attorney General Office o f Legal Counsel 249

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June 14, 1979 79-41 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT Chairman of the Federal Home Loan Bank Board—Reorganization Plan No. 3 of 1977 (5 U .S.C . App.)—Resignations—The President’s Authority to Redesignate a Member as Chairman This responds to the oral request of your Office for our views on the Pres­ ident’s power to redesignate a member of the Federal Home Loan Bank Board. The Board, established by Reorganization Plan No. 3 of 1947 (5 U.S.C. App.; see also 12 U.S.C. § 1437), consists of three members ap­ pointed by the President by and with the advice and consent of the Senate. On April 20, 1979, the Chairman tendered his resignation effective June 1, 1979. On May 1, 1979, the President accepted the resignation as Chair­ man and as a member of the Board. In a letter dated June 1, 1979, he notified the President that he had submitted his resignation only as Chair­ man, but not as a member. However, he expressed his willingness to con­ tinue to serve as Chairman until June 29, 1979, or until such earlier date as his resignation as a member and Chairman would be tendered. By letter dated June 6, 1979, the President noted that the letter of resignation of April 20 had applied only to the position of Chairman and not to member­ ship on the Board. The President thereupon redesignated the member as Chairman of the Board until such time as his resignation as a member and Chairman was tendered. It is our opinion that the President was authorized to redesignate the member as Chairman because he still was a member of the Board at that time. It is true that the President’s letter of May 1, 1979 stated that he ac­ cepted the resignation as Chairman and member. But the resignation was only as Chairman and not as a member. The President, of course, has the power to remove a purely executive officer in the absence of a resignation. Myers v. United States, 272 U.S. 52 (1926). However, in view of the bipar­ tisan nature and the regulatory functions of the Board, it is questionable 248 whether the President has the same unrestricted power with respect to the members of the Board. Humphrey’s Executor v. United States, 295 U.S. 602 (1935); Wiener v. United States, 357 U.S. 349 (1958). In any event, an intent to remove the Chairman as a member of the Board would be incon­ sistent with the highly complimentary and appreciative nature of the Presi­ dent’s letter of May 1, 1979. The “ acceptance” of the resignation as a member, therefore, was at most in the nature of a misunderstanding without any legal effect and did not terminate membership on the Board. Accordingly, the member was eligible to be redesignated as Chairman. L arry A . H am m ond Deputy Assistant Attorney General Office o f Legal Counsel 249

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Applicability o f Executive Order No. 12674 to Personnel of Regional Fishery Management Councils The ap p ointed m em bers o f Regional Fishery M anagem ent C ouncils established under the M agnuson Fishery C onservation and M anagem ent A ct and other personnel of those C ouncils are not executive branch em ployees for purposes of E xecutive O rder No. 12674 and its im plem enting regulations, and thus are not subject to that Order. D ecem ber 9, 1993 M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l D epa rtm en t o f C o m m er c e This memorandum responds to your request1 for our opinion whether Executive Order No. 12674, 3 C.F.R. 215 (1990) (“Order”), and the regulations implement­ ing it apply to officials of the Regional Fishery Management Councils (“Councils”) established under the Magnuson Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1882 (“Magnuson Act” or “FCMA”).2 The officials in question are the Council members appointed by the Secretary of Commerce (“Secretary”) and the Councils’ executive directors and administrative employees. We conclude that, under the unusual statutory scheme of the Magnuson Act, appointed Council members and the other Council personnel under consideration are not executive branch “employees” subject to the Order. I. The Magnuson Act created eight Councils from regional groupings of coastal States and gave them certain authority concerning ocean fisheries to the seaward of their member States. See 16 U.S.C. § 1852(a). The Secretary appoints a majority of the voting membership for three-year terms. Id. § 1852(a)-(b). The remaining members, voting and nonvoting, are State and Federal officials who serve ex offi­ cio. Id § 1852(b)-(c).3 The appointed Council members may be removed by the Secretary only “for cause . . . if the Council concerned first recommends removal 1 S e e L etter fo r T im o th y E. Flanigan, A ssistan t A ttorney G eneral, O ffice o f Legal C ounsel, D epartm ent of Ju stic e , from D epartm ent o f C om m erce (Ju ly 17, 1992) (“C om m erce L etter’ ). 2 T he O rd e r w as am en d ed by Exec O rd e r No. 12731, 3 C F.R 306 (1991), in respects not pertinent to this discu ssio n . T h e O ffice o f G overnm ent E th ic s ’ regulations im plem enting the O rder took effect on F ebru­ ary 3, 1993. S ee 57 Fed. Reg. 35,006 (1 9 9 2 ) (to be co d ified at 5 C .F R. pt. 2635). 1 T he Pacific C ouncil also h a s one n o n v o tin g m em ber appointed by, and serving at the pleasure of, the G o v ern o r o f A laska 16 U S.C. § 1852(c)(2). W e understand from discussions w ith your staff that the term “ m em b ers," as used in the C om m erce L etter, is lim ited to m em b ers of a C ouncil appointed by the Secretary. C o n seq u en tly , w e have focused our analysis on this category. W e use the term “appointed” C ouncil m em ­ bers to d istin g u ish such m em b ers from th o se w h o serve ex officio'. 150 A pplica b ility o f Executive O rder N o 12674 to P ersonnel o f R egional F ishery M anagem ent C ouncils by not less than two-thirds of the members who are voting members.” Id. § 1852(b)(5). Each Council has the authority to appoint an executive director and such other administrative employees as the Secretary deems necessary. Id. § 1852(f)(1)- The Secretary pays appointed Council members “the daily rate for GS-16 of the Gen­ eral Schedule, when [such member is] engaged in the actual performance of duties for [a] Council.” Id. § 1852(d).4 The Secretary also pays “appropriate compensa­ tion” to the executive director and administrative employees. Id. § 1852(0(7). The Administrator of General Services furnishes the Councils with such offices and office supplies as any agency would receive. Id. § 1852(f)(4). The Councils advise the Secretary in formulating fishery management plans within their respective geographical areas. Id. § 1852(h). The management plans must conform to national standards, id. § 1851, with respect to which the Secretary has promulgated implementing guidelines. See 50 C.F.R. pt. 602 (1993). The Councils generally are required to open their proceedings to the public and must hold hearings to consider comments from interested persons during the develop­ ment of management plans. 16 U.S.C. § 1852(h)(3). After a management plan is prepared by a Council, it is submitted to the Secretary, who reviews it and either approves, disapproves, or partially disapproves it. Id. § 1854(a), (b). If a Council fails to develop and submit a management plan, or fails to change a plan that the Secretary has partially or completely disapproved, the Secretary may prepare a management plan for that region. Id. § 1854(c). However, “the Secretary may not include in any fishery management plan, or any amendment to any such plan, pre­ pared by him, a provision establishing a limited access system [with respect to a fishery] . . . unless such system is first approved by a majority of the voting mem­ bers, present and voting, of each appropriate Council.” Id. § 1854(c)(3). After a management plan has been prepared or approved by the Secretary, the Secretary promulgates implementing regulations. Id. § 1855(a). The Secretary is responsi­ ble for the enforcement of the FCMA and implementing regulations. See id. §§ 1858,1861. In the words of the FCMA’s principal sponsor, Senator Warren G. Magnuson, the Councils are unique among institutions that manage natural resources. They are neither state nor federal in character, although they possess qualities of each. Their powers are derived from the constitutional authority of the federal government, yet the Councils are self­ determinant in their own affairs. Enforcement and administration of the Councils’ plans and regulations are carried out by the responsi­ ble federal agencies. 4 The G S-16 level in the G eneral Schedule no longer exists 378 (1992). 151 See Exec. O rder N o 12786, 3 C F R 376, Opinions o f th e O ffice o f L egal Counsel * * * Although the Councils are to be relatively independent, each Coun­ cil must operate within the uniform standards promulgated by the Secretary of Commerce that govern the administration of the Act. The principal function of the Councils is to formulate fishery man­ agement plans upon which management and conservation regula­ tions are to be based. Warren G. Magnuson, The Fishery Conservation and Management Act o f 1976: First Step Toward Improved Management o f Marine Fisheries, 52 Wash. L. Rev. 427,436-37 (1977). II. The Order’s preamble recites that it is intended to set forth “standards of ethical conduct for all executive branch employees.”5 The term “employee” is defined only as follows: “any officer or employee of an agency, including a special Gov­ ernment employee.” Id. § 503(b).6 An “agency” means any “executive department . . ., Government corporation . . ., or an independent establishment in the executive branch,” as those terms are defined in 5 U.S.C. §§ 101, 103, and 104. Id. § 503(c). A “Special Government employee” is “as defined in 18 U.S.C. 202(a).” Id. § 503(e).7 The Commerce Letter concludes that the Order and its implementing regulations do not apply to appointed Council members and staff. It reasons that because the authority for prescribing regulations governing standards of conduct is derived from 5 U.S.C. § 7301,8 the definitions of “officer” and “employee” in title 5 should determine whether the Order applies to the Councils.9 The Commerce Letter fur­ 3 T h e O rd e r su p ersed es E xec. O rder No 11222 S ee 56 Fed. R eg 3 3 ,7 7 8 ,3 3 ,7 7 8 (1 9 9 1 ) 6 A s the C o m m erce L etter notes, the term s ' ‘o fficer” and “‘e m p loyee” do not receive any further definition, thus m aking the O rd e r s d efin itio n o f “e m p lo y ee” partly circular 7 S ection 202(a) o f title 18 defines a ' “sp ecial G overnm ent em p loyee” in part as any. o ffice r or em p lo y ee o f the executive . . . branch w ho is retained, designated, appointed, or em p lo y ed to p erform , w ith or without co m p en satio n , fo r not to exceed one hundred and thirty days d u rin g any period o f three hundred and sixty-five co n secutive days, tem porary duties either o n a full-tim e o r in term itten t basis. 8 5 U S C. § 7301 p rovides that “(t]he P resid en t m ay prescribe regulations for the conduct of e m ployees in the e x ecu tiv e b ran ch .” 9 A n ‘‘o ffice r” under 5 U .S C § 2104 is: [A ]n individual w ho is — (1) required by law to be appointed m the civil service by one o f the following acting in an o ffi­ cial cap a c ity — (A ) the President; (B ) a court o f the U nited States; (C ) the head o f an Executive ag en cy , or (D ) the Secretary o f a military d ep artm en t, 152 A p plicability o f E xecutive O rder No. 12674 to P ersonnel o f R egional F ishery M anagem ent C ouncils ther argues, in reliance on a 1976 opinion of the Acting General Counsel of the former United States Civil Service Commission,10 that “Council staffs and mem­ bers are not Federal employees for the purposes of 5 U.S.C. § 2105 because al­ though the public members of the Councils are appointed by a Federal official (namely the Secretary of Commerce) and Council members perform a Federal function authorized by statute (e.g., preparing fishery management plans), there [is] no supervisory relationship between the Secretary of Commerce and the Councils within the meaning of section 2105(a)(3).” Commerce Letter at 5." III. We accept the premise of the Commerce Letter that the terms “officer” and “employee,” as used in § 503(b) of the Order, are identical in scope and meaning with the terms “officer” and “employee” as used in 5 U.S.C. §§ 2104 and 2105. We further believe that, as those terms are used in 5 U.S.C. §§ 2104 and 2105, they do not reach the appointed Council members. A. Three considerations point to the conclusion that the terms “officer” and “employee” in the Order have the same meaning as those terms in 5 U.S.C. §§ 2104 and 2105. First, in the absence of any definition of “employee” in the crimi­ nal conflict-of-interest statutes applicable to Federal employees in title 18, we have generally assumed that the term “was no doubt intended to contemplate an employer-employee relationship as that term is understood in other areas of the law,” (2) engaged in the perform ance o f a Federal function under authority o f law or an Executive act, and (3) subject to the supervision o f an authority nam ed by paragraph ( i ) o f this section, or the J u d i­ cial C onference o f the U nited States, w hile engaged in the perform ance o f the duties o f his office An “em ployee" u n d er 5 U S.C § 2105 is [A ]n officer an d an individual w ho is — (1) appointed in the civil service by one o f the follow ing acting in an official capacity— (A ) the President, (B) a M em ber or M em bers o f C ongress, or the C ongress, (C) a m em ber o f a uniform ed service, (D ) an individual w ho is an em ployee under this section; (E) the head o f a G overnm ent controlled corporation, or (F ) an adjutant general designated by the Secretary concerned under section 709(c) o f title 32, (2) engaged in the perform ance o f a Federal function under authority o f law or an E xecutive act, and (3) subject to the supervision o f an individual nam ed by paragraph (1) o f this subsection w hile engaged in the perform ance o f the duties o f his position. 10 L etter for Joseph E K asputys, A ssistant Secretary for A dm inistration, D epartm ent o f C om m erce, from Joseph B Scott, A cting G eneral C ounsel, C ivil Service C om m ission (A ug 3, 1976) ( '‘C SC O pinion” ) 1 The C om m erce Letter does not specifically address the possibility that appointed C ouncil m em bers might be w ithin title 5 ’s definition o f an “officer.” H ow ever, § 2 105’s definition o f an “e m ployee” explicitly extends to “o fficers." In contending that appointed C ouncil m em bers are not “em ployees,” th erefore, the C om m erce Letter im pliedly excludes their being “officers ” 153 Opinions o f th e O ffice o f L egal C ounsel and in particular have turned to 5 U.S.C. § 2105 as providing “the most obvious source of a definition” for title 18 purposes. See Conflict o f Interest — Status o f an Informal Presidential A dvisor as a “Special Government E m ployee” 1 Op. O.L.C. 20, 20 (1977).12 Because the objectives of the Order and its implementing regula­ tions are closely related to those of the conflicts statutes, we think it reasonable to look to title 5’s definition of “employee” when elucidating the Order. Cf. Northcross v. Board ofE duc., 412 U.S. 427, 428 (1973) (similarity of language and pur­ pose in different statutes suggests that they be construed similarly).13 Second, although the Order does not expressly adopt title 5 ’s definition of an “employee,” it does adopt that title’s definition of an “agency.” See Order § 503(c) (“‘Agency’ means any executive agency as defined in 5 U.S.C. 105 . . . .”). We think it unlikely that the Order was intended to cover personnel who were em­ ployed by “agencies” within the meaning of title 5 but who were not themselves “employees” within the same title. Third, although the Order’s preamble locates the President’s authority to issue the Order in “the Constitution and laws of the United States” without specifying any particular statutory provision, we agree with the Commerce Letter that the most obvious statutory source of authority for the Order is 5 U.S.C. § 7301. That section states that the President “may prescribe regulations for the conduct of em­ ployees in the executive branch,” 5 U.S.C. § 7301, and is a general statutory source of authority for Presidential regulation of executive branch personnel. See N a t’l A ss’n o f Letter Carriers v. Austin, 418 U.S. 264, 273 n.5 (1974); Crandon v. United States, 494 U.S. 152, 183 (1990) (Scalia, J., concurring in the judgment) (Executive Order No. 11222 was issued “under the President’s authority and pur­ suant to 5 U.S.C. § 7301”). Because the section occurs in title 5, its interpretation is governed by the definition of an “employee” in § 2105 of the same title.14 To the extent that the Order rests upon § 7301, therefore, its coverage must be limited to the class of employees within § 2105. 12 S e e a lso M em o ran d u m for Irving P. M arg u lies, D eputy G eneral C ounsel, D epartm ent of C om m erce, from T h eo d o re B. O lson, A ssistant Attorney G eneral, O ffice o f Legal C ounsel, Re: P re sid e n t's P rivate S e c ­ to r S u r v e y on C o st C o n tro l at 10 (Dec 15, 1982) (“the Title 5 definition o f em ployee is frequently used as a starting p o in t for any analysis o f whether th e conflict o f in terest laws apply to a p articular individual . . alth o u g h the T itle [5] d efin itio n is not necessarily conclusive fo r conflicts purposes” ). 13 T h e O rd e r ex p ressly covers both regular and special G o v ern m ent em ployees o f an agency See O rder § 5 0 3 (b ) A n in d iv id u a l’s status as a special (a s distinct from re g u la r) G overnm ent em ployee turns on w hether the app o in tm en t is fo r no m ore than 130 d a y s out o f any c o n secu tive 365 days. See R estrictions on a F ed­ e ra l A p p o in te e 's C o n tin u ed Em ploym ent b y a P rivate Law F irm , 7 O p O L.C. 123, 126 (1983). W e have ap p lied the e lem en ts o f title 5 ’s definition o f “ e m p lo y ee” lo b o th regular and special G overnm ent em ployees. S e e 1 O p. O L C at 21, F ed era l Advisory C o m m ittee A c t (5 U .S C. App. I) — U nited S ta tes-Japan C onsulta­ tiv e G ro u p on E c o n o m ic R elations, 3 Op O .L C 321, 322-23 (1979). 14 S ectio n 2105 sp ecifies that its definition applies g enerally in title 5, “except as otherw ise provided by this sec tio n o r w hen sp ecifically modified.*’ Section 7301 d o es not undertake to m odify § 2 1 0 5 ’s definition o f an “e m p lo y e e,” and thus does not fall w ith in this exception 154 A pplicability’ o f Executive O rder No. 12674 to P ersonnel o f R egional F ishery M anagem ent C ouncils B. Assuming then that the Order applies only to “employees” within the meaning of § 2105, an appointed Council member would have to meet each of the three tests in § 2105 to be deemed a covered “employee.” He or she would have to be (1) “appointed” by an appropriate official, (2) engaged in the performance of a Federal function, and (3) subject to the supervision of an appropriate Federal offi­ cer or employee. See Horner v. Acosta, 803 F.2d 687, 691-92 (Fed. Cir. 1986) (collecting cases); Costner v. United States , 665 F.2d 1016, 1019-20 (Ct. Cl. 1981). It is not disputed that appointed Council members satisfy the first two of these tests. The Commerce Letter contends, however, that the third test is not met. In its view, because these Council members are not subject to the supervision of the Sec­ retary, they are not “employees” within § 2105 or the Order. We agree that the third test is not met. We begin by considering the text of the Magnuson Act. As we have observed, “[t]he FCMA ‘adopts a somewhat convoluted scheme to achieve its purposes of conservation and management of fishery resources.’” Litigating Authority o f the Regional Fishery Management Councils, 4B Op. O.L.C. 778, 778 (1980) (quoting Washington Trollers Ass'n v. Kreps, 466 F. Supp. 309, 311 (W.D. Wash. 1979), rev ’d on other grounds, 645 F.2d 684 (9th Cir. 1981)) (“Litigating Authority”).15 Two features of the Act in particular demonstrate that Congress did not intend ap­ pointed Council members to be “subject to the supervision o f ’ the Secretary within the meaning of § 2105. First, the Secretary’s removal power as to an appointed Council member cannot be exercised except upon the prior recommendation of two-thirds of a Council. See 16 U.S.C. § 1852(b)(5). This provision severely lim­ its the Secretary’s removal power and is designed to constrain narrowly the Secre­ tary’s ability to supervise and control the Council members he appoints. See Morrison v. Olson, 487 U.S. 654, 694, 696 (1988) (power to remove officials pro­ vides ability to supervise and control them); M eyer v. Bush, 981 F.2d 1288, 1295 (D.C. Cir. 1993) (same).16 15 In enacting the M agnuson Act, C ongress “creat[ed] really a unique anim al in these m anagem ent coun­ cils, som ething that had not existed before W e tr[ied] to create som ething unique, and w e d id in the regional m anagem ent councils We did not m ake them regular Federal em ployees, because we did not want them to be regular Federal em ployees.” See F ishery C onservation a nd M anagem ent A c f H earings Before the Subcom m on Fisheries and WiUlhje C onservation a n d the E nvironm ent oj the H ouse C om m on M er­ chant M arine a n d Fisheries, 96th C ong 4 4 8 -4 9 (1979) (“ 1979 H earings” ) (rem arks o f Rep Studds) 16 C onsistent w ith that intent, the H ouse R eport on the 1983 am endm ents to the M agnuson Act stated that the C ouncils '‘en jo y some degree o f independence from the Secretary ’ See H R Rep No 97-549, at 15 (1982), rep rin ted in 1982 U S .C C A N 4320, 4328 (“ 1982 H ouse R eport” ) (accom panying H R 5002 e n ­ acted as Pub L. N o 97-453, 96 Stat 2481 (1 9 8 3 )) R epresentative Studds w ent further in em p h asizin g the C ouncils' autonom y: I w ould have been outraged looking at that statem ent “The councils enjoy som e degree of in d e ­ pendence from the Secretary ” That w as backw ards, absolutely inside-out and backw ard In som e lim ited ways, the councils have som e responsibilities w hich involve the Secretary T hey are 155 Opinions o f th e O ffice o f Legal C ounsel Second, any fishery management plan drafted by the Secretary may not limit ac­ cess to a fishery unless a majority of the voting membership of each affected Council approves. See 16 U.S.C. § 1854(c)(3). Thus, the statute empowers the Councils to prevent certain regulatory actions by the Secretary and, in effect, puts the Councils on a footing with the Secretary in regulating access to regional fish­ eries. In view of both the powerful constraints on the Secretary’s removal author­ ity and the Councils’ apparent “veto” power over some of the Secretary’s initiatives, it cannot be said that the Council members are subject to the Secretary’s supervision. Legislative history (albeit history relating to amendments to the original Magnu­ son Act) supports this reading of the statute. The House Report on the 1983 amendments to the Magnuson Act stated that “Council members and administrative staffs are not Federal employees in the sense of 5 USC 2105 because they are not appointed by, or subject to the supervision of Federal officials in their day-to-day activities.” 1982 House Report at 15.17 Moreover, the Commerce Department itself denies (and has long denied) that the Secretary of Commerce exercises su­ pervisory authority over the Councils. The Commerce Department’s position is buttressed by the 1976 CSC Opinion. See Commerce Letter at 6. Consequently, we conclude that appointed Council members are not “employees” subject to the Order. In addition, the executive directors and admin­ istrative employees of the Councils also are not “employees” because they are ap­ pointed and supervised by the Councils, see 16 U.S.C. § 1852(0(1), a majority of whose members are not federal employees, so that the requirements of 5 U.S.C. § 2105 again are not met. Accord 1982 House Report at 15.18 In reaching these conclusions, we do not suggest that the existence of statutory limitations on removal is generally inconsistent with the retention of supervisory power in the person who can exercise the power to remove. On the contrary, the case law clearly supports the view that “for cause” limitations on removal power can be compatible with the continuing power and duty to supervise.19 In the case of the Councils, however, the statute does not restrict the Secretary’s removal fu n d am en tally independent from the S ecretary They do not enjoy som e degree o f independence from the S ecretary, they are basically, fundam entally and critically independent o f the Secretary. 1979 H earin g s at 4 4 9 -5 0 17 W e note that the H ouse R eport is in e rro r insofar as it slates broadly that C ouncil m em bers are not appoin ted by Federal officials. The Secretary appoints the C ouncil m em bers w hose status is in question here 18 H ow ev er, Federal em p lo y ees detailed to the C ouncils pu rsu ant to 16 U.S C § 1852(0(2) w ould retain their statu s as “em p lo y e es” w ithin the m eaning o f 5 U S C § 2105. 19 See, e.g ., M o rriso n v. O lson, 487 U S at 692 (“good cause*’ lim itation on the A ttorney G eneral’s pow er to rem ove in d ep en d en t co u n sel did not p rev en t A ttorney G eneral from exercising sufficient supervisory authority to assu re that co u n sel perform ed co m p eten tly and in accordance w ith statutory m andate), B ow sher v Svna r, 4 7 8 U.S 714, 72 6 , 7 2 8 -2 9 (1986) (C o n g re ss’s pow er to rem ove the C om ptroller G eneral for causes in cludin g “in efficien cy , * “n eglect of duty,’* and “ m alfeasance’* enabled it to control execution o f law s by C o m p tro lle r G eneral). Indeed, the very a b ility to rem ove for “cause*’ presupposes that the officer or body that has the rem o v al p o w er m ust supervise the subordinate o ffic e r at least to the extent needed to determ ine w hether “cause** for rem o v al exists 156 A pplica b ility o f E xecutive O rder N o 12674 to P ersonnel o f R egional Fishery M anagem ent C ouncils power merely by requiring that “cause” for removal exist. It also demands that, before a Council member can be removed, two-thirds of the Council’s voting membership recommend such removal. In effect, the statutory scheme not only circumscribes the removal power, but also vests that power jointly in the Secretary and the Councils themselves. This unusual feature of the Magnuson Act distin­ guishes it from more traditional legislation in which some form of “cause” is all that is required before removal can occur. As a result, the Councils possess greater autonomy than that enjoyed, for example, by typical “independent” agencies.20 We also do not suggest that the Secretary utterly lacks any supervisory authority with regard to the Councils. On the contrary, it is clear that under this unusual statutory scheme, Congress intended the Secretary to exert substantial control over basic aspects of the Councils’ activities. Thus, as we have pointed out: However independent the Councils may be in their day-to-day op­ erations, ultimate authority over a majority of their membership, budgets, and their major area of concern — the fishery management plans — remains with the Secretary or other federal agencies. The Councils perform the basic research, hold hearings, draft the plan for their area, and propose regulations. It is the Secretary, however, to whom the drafts and proposals are submitted and it is the Secre­ tary who either approves the management plan or amends it to his satisfaction. It is also the Secretary who reviews the regulations to insure their legality and who implements them. Litigating Authority, 4B Op. O.L.C. at 782 (footnotes and citations omitted).21 In our judgment, however, the Secretary’s powers with respect to the Councils do not suffice to render appointed Council members “employees” subject to the Secretary’s supervision. As Senator Magnuson put it, “the Councils are self­ determinant in their own affairs.” Magnuson, supra at 436. The unusually severe constraints on the Secretary’s removal power, coupled with the Councils’ ability to “veto” the Secretary’s draft fishery management plan if the plan limits access to a fishery, are incompatible with the ordinary meaning of supervision. Consequently, 20 C om pare 16 U S C § 1852(b)(5) (prior recom m endation o f tw o-thirds o f C ouncil needed before Secretary may rem ove m em ber for “cause” ) with, e g , 1 5 U S C . § 41 (P resident may rem ove m em ber o f Fed­ eral Trade C om m ission for “inefficiency, neglect o f duty, o r m alfeasance in office” ) W e have found only one other statute, 16 U S C § 4009, establishing certain seafood m arketing councils, that limits the rem oval pow er in a fashion com parable to 16 U S.C § 1852(b)(5). 21 See also C hristopher L. K och, C om m ent, J udicial R eview o j F ishery M anagem ent Regulations U nder the F is h e n ’ C onservation a n d M anagem ent A c t o f 1976, 52 W ash L. Rev. 599, 616, 6 20 (1977) (S ecretary is final arbiter in prom ulgation o f fishery m anagem ent m easures and is responsible for ensuring that m an­ agem ent schem es com port w ith legislative standards, fact that Secretary m ust review C o u n cils' decisions perm its scrutiny o f m anagem ent plans for self-serving m easures that C ouncils dom inated by fishing industry m ight put forw ard). 157 Opinions o f th e O ffice o f Legal C ounsel we conclude that appointed Council members are not employees covered by the Order. Conclusion As a matter of statutory construction, and on the basis of the specific features of the Magnuson Act, we conclude that Executive Order No. 12674, as amended by Executive Order No. 12731, and the implementing regulations relating to that Or­ der, do not apply to appointed members, executive directors, or administrative em­ ployees of the Regional Fishery Management Councils. WALTER DELLINGER Assistant Attorney General Office o f Legal Counsel 158

Write a legal research memo on the following topic.

Reimbursement for Defense Department Assistance to Civilian Law Enforcement Officials T he D epartm ent o f D efense A uthorization Act of 1982 authorizes the Secretary of Defense to seek reim bursem ent from civilian law enforcem ent agencies to whom the Departm ent provides various form s o f assistance, and the Secretary of D efense m ay condition his D epartm ent’s provision of assistance on such reim bursem ent. However, the Act also gives the Secretary discretion to waive a requirem ent o f reim bursem ent for assistance provided under its authority. T he E conom y A ct, 31 U .S .C . § 686 (1976), provides general authority for one agency to request assistance from another agency for an activity o r operation that the requesting agency has authority to p erfo rm , and a perform ing agency should seek reim bursem ent for the actual cost o f services provided under that A ct. However, w here there is specific authonty for one agency to assist another, the provisions o f the Econom y Act do not apply. July 24, 1982 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL This responds to your request for an opinion regarding reimbursement for assistance provided by the Department of Defense to civilian law enforcement officials under the Department o f Defense Authorization Act, 1982.1 This Act provided the Defense Department with express authorization to provide certain assistance to civilian law enforcement officials. With such express authorization, the provision of such assistance cannot be said to violate the Posse Comitatus Act, a Reconstruction-era law generally limiting the role of the Nation’s military forces in executing the law.2The narrow issue upon which you have requested our opinion is whether the Defense Department is required to seek reimbursement from civilian law enforcement agencies for authorized assistance it provides pursuant to this Act, or whether, under this Act, that Department is authorized to condition assistance on reimbursement although it need not do so. It is our opinion, after reviewing the Act and its legislative history as well as a number of memoranda prepared by the Defense Department,3 that the Act 1 The Department of Defense Authorization Act, 1982, is Pub L No 97-86, 95 Stat. 1099 (1981). 2 The Posse Comitatus Act is codified at 18 U .S.C § 1385. That Act’s general restriction on the Defense Department's authonty to execute the laws is made inapplicable under § 1385 itself if use of the Armed Forces is “ expressly authorized by . Act of Congress. . . 3 We have received five main documents from the Defense Department stating its view. (1) a Memorandum for the Deputy Secretary of Defense from the General Counsel, Defense Department, dated March 11, 1982, to which is attached a background discussion of the Act’s legislative history; (2) a Memorandum for the Deputy Secretary of Defense from the General Counsel, Defense Department, dated March 18, 1982; (3) Enclosure 5 of Defense Department Directive No 5525.5, dated March 22, 1982, entitled “ DoD Cooperation with Civilian Law EnforceC o ntinued 464 authorizes but does not require that Department to seek reimbursement from civilian law enforcement agencies. Our reasons for reaching this conclusion are set forth in section II below. The Defense Department’s position on the matter at issue is summarized in section I. I. The Defense Department’s Interpretation To understand the matter at hand, it is first necessary to set forth the major provisions of the Department of Defense Authorization Act, 1982. They are the following new §§ 371 through 377 of Title 10, United States Code (Supp. V), contained in § 905, Title IX, of the Act: § 371. Use o f information collected during military operations The Secretary c f Defense may, in accordance with other ap­ plicable law, provide to Federal, State, or local civilian law enforcement officials any information collected during the normal course of military operations that may be relevant to a violation of any Federal or State law within the jurisdiction of such officials. § 372. Use c f military equipment and facilities The Secretary of Defense may, in accordance with other ap­ plicable law, make available any equipment, base facility, or research facility of the Army, Navy, Air Force, or Marine Corps to any Federal, State, or local civilian law enforcement official for law enforcement purposes. § 373. Training and advising civilian law enforcement officials The Secretary c f Defense may assign members of the Army, Navy, Air Force, and Marine Corps to train Federal, State, and local civilian law enforcement officials in the operation and maintenance c f equipment made available under section 372 of this title and to provide expert advice relevant to the purposes of this chapter. § 374. Assistance by Department c f Defense personnel ( a ) . . . the Secretary c f Defense, upon request from the head of an agency with jurisdiction to enforce— (1) the Controlled Substances Act (21 U.S.C. 801 et seq.) or the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.); ment Officials", (4) a letter from the Deputy Secretary of Defense to the Attorney General, dated March 26, 1982; and (5) a letter from the General Counsel, Defense Department, to Theodore B Olson, Assistant Attorney General, Office of Legal Counsel, dated June 11, 1982. In additton, we have received a copy of testtmony by the Defense Department’s General Counsel before the Subcommittee on C nm e o f the House Committee on the Judiciary, dated June 3,1981, which relates generally to the issue before us Rirther, we have received a copy of a memorandum prepared by this Department’s Office of Legal Policy on the issue at hand, dated April 30, 1982. 465 (2) any of sections 274 through 278 of the Immigration and Nationality Act (8 U.S.C. 1324—1328); or (3) a law relating to the arrival or departure of merchandise (as defi ned in section 401 o f the Tariff A cto fl9 3 0 (1 9 U .S .C . 1401)) into or out of the customs territory of the United States (as defined in general headnote 2 o f the Tariff Schedules of the United States (19 U .S.C . 1202)) or any other territory or possession of the United States, may assign personnel o f the Department of Defense to operate and maintain or assist in operating and maintaining equipment made available under section 372 of this title with respect to any criminal violation of any such provision of law. § 375. Restriction on direct participation by military personnel. The Secretary cf Defense shall issue such regulations as may be necessary to insure that the provision cfany assistance (including the provision of any equipment or facility or the assignment of any personnel) to any civilian law enforcement official under this chapter does not include or perm it direct participation by a m em ber o f the Army, Navy, A ir Force, or Marine Corps in an interdiction of a vessel o r aircraft, a search and seizure, arrest, or other similar activity unless participation in such activity by such m em ber is otherwise authorized by law. § 376. Assistance not to affect adversely military preparedness Assistance (including the provision of any equipment or facili­ ty or the assignment of any personnel) may not be provided to any civilian law enforcement official under this chapter if the provi­ sion of such assistance will adversely affect the military prepared­ ness of the United States. . . . § 377. Reimbursement The Secretary of Defense shall issue regulations providing that reimbursement may be a condition c f assistance to a civilian law enforcement official under this chapter. (Emphasis added.) The foregoing provisions authorize the Defense Department to provide various forms of assistance to civilian law enforcement officials, although certain general limitations must be observed. First, Congress took care to prevent “ direct” involvement of military forces in civilian law enforcement activities, see § 375. Second, Congress sought to assure that assistance under the Act would not adversely affect the Nation’s military preparedness, see § 376. In § 377, Con­ gress specifically provided that the Secretary of Defense shall issue regulations 466 “ providing that reimbursement may be a condition of assistance to a civilian law enforcement official under this chapter.” (Emphasis added.) The Defense Department’s interpretation of its authority to waive reimburse­ ment may be summarized in terms of two major propositions. First, the Depart­ ment contends that when its authority for assisting civilian law enforcement officials was based on the Economy Act, 31 U.S.C. § 686 (1976), as it was prior to the passage of the Department of Defense Authorization Act, 1982, the Secretary of Defense was legally required to request reimbursement in most situations. This contention rests on an analysis of the Economy Act and decision­ al law, particularly that of the Comptroller General, under it. Second, the Department argues that nothing in the Department of Defense Authorization Act, 1982, changed that result. In short, the Defense Department urges that the principles of the Economy Act as applied prior to the recent Act’s passage still apply. The Defense Department’s position is expressed in the letter of the Deputy Secretary of Defense to you dated March 27, 1982, where it is stated that “ [t]he authority of the Secretary of Defense to make reimbursement a condition of assistance under 10 U.S.C. § 377 permits waiver of reimbursement only to the extent that reimbursement is not required by other applicable laws, such as the Economy Act.” The letter proceeds to urge that Congress’ intent in enacting the recent Act was “ to leave in place existing laws governing the provision of assistance to other agencies,” and “ did not intend . . . to provide a new basis for DoD funding of civilian law enforcement activities.” (Page 1.) As a result of the Defense Department’s analysis of the reimbursement issue, it concludes that the recent Act does not accord the Department any new discretion or any general authority to waive reimbursement for assistance provided to civilian law enforcement officials. II. Analysis of the Defense Department’s Interpretation In responding in this section to the major points underlying the Defense Department’s interpretation, we will set forth our own analysis of the reimburse­ ment issue. (1) First, we find no reason to agree or disagree with the Defense Department’s argument about the requirement, prior to the passage of the recent Act, to seek reimbursement from civilian law enforcement agencies for assistance provided to them. It is correct that the Economy Act, 31 U.S.C. § 686, is a source of authority for one agency to request assistance from another agency for an activity or operation that the requesting agency has authority to •perform.4 It also is 4 As the Comptroller General has stated, the purpose o f 31 U .S.C . § 686, which is § 601 of the Economy Act of 1932, as amended, is to authorize inter-agency procurement of work, materials, or equipment 57 Comp. Gen. 674, 676-77 (1978). Congress intended that economies could be achieved by providing such authority to “ enable all bureaus and activities of the Government to be utilized to their fullest ” Id. at 680, quoting H.R. Rep No 2 2 0 1 ,71st Cong., 2d Sess 2 -3 (1931) (a report on a predecessor bill) The Economy Act, 31 U.S C. § 686, does not give the performing agency any new authority to perform any function; it only gives the requesting agency authonty to request the performing agency to assist the requesting agency if the requesting agency otherwise has authonty to perform the function. 467 generally correct that, under the Comptroller General’s opinions interpreting the Economy Act, a performing agency should seek reimbursement for the actual cost of services provided to a requesting agency under the Economy Act.5 However, in our view, these propositions and the argument employing them as advanced by the Defense Department are essentially beside the point in the present context. The Economy Act, 31 U.S.C. § 686, is needed only when there is no specific authority for one agency to assist another agency, or no authority for the performing agency to take the action in the course of fulfilling its own statutory duties. In such circumstances, under the terms of the Economy Act, an agency may “ place orders with any other such department, establishment, bureau, or office for materials, supplies, equipment, work, or services, of any kind that such requisitioned Federal agency may be in a position to supply or equipped to render. . . .” However, where there is specific authority for one agency to assist another, there is simply no need to rely on the Economy Act in the first place. This point is clear not only from the Economy Act’s language, but also from its legislative history, which makes plain that the chief purpose of enacting the provision was to establish general authority for one agency to assist another agency when specific authority did not satisfy the requesting agency’s needs for assistance. See, e .g ., 57 Comp. Gen. 675, 678-80 (1978) (reviewing the legis­ lative history of the Economy Act, and noting that prior to its passage, some agencies had specific authority to perform certain classes of work for other agencies, but there was no general authority under which agencies could assist other agencies); H.R. Rep. No. 1126, 72d Cong., 1st Sess. 15—16 (1932). Accordingly, we cannot accept the suggestions that the Economy Act applies in the present context and that it requires reimbursement for assistance provided by the Defense Department. O ur chief difficulty with these suggestions is, in short, that the Economy Act no longer applies since there is no longer any need to use its general authority as the basis on which the Defense Department provides assistance to civilian law enforcement officials. In its plain terms, the Depart­ ment of Defense Authorization Act, 1982, authorizes the Defense Department to provide certain forms of assistance to civilian law enforcement officials. In such a situation, the law concerning reimbursement under the Economy Act is inapplicable.6 (2) Second, the Defense Department’s suggestion that nothing in the recent Act countermands its conclusion that reimbursement is required under the Economy Act cannot be reconciled with the plain language of § 377, the reimbursement provision. This provision states specifically that the Secretary of Defense “ shall issue regulations providing that reimbursement may be a con­ 5 See, e.g .. 57 Comp Gen. 674 (1978), 56 Comp. Gen. 275 (1977); 46 Comp Gen. 73, 76 (1966); 18 Comp. Gen. 262, 266 (1938). 6 We would emphasize that this conclusion follows directly from the existence in the Department of Defense Authorization Act, 1982, of specific authority for the Defense Department to assist civilian law enforcement agencies. The existence of this specific authority makes it unnecessary to rely on the Economy Act, 31 U .S.C § 686, as the authority for such assistance. Accordingly, even if § 377 of the recent Act had not been enacted, the Economy Act would be inapplicable in (he present context. 468 dition of assistance to a civilian law enforcement official under this chapter.” (Emphasis added.) It is difficult to imagine how Congress could have indicated more clearly that the Secretary may— but need not— condition assistance on reimbursement.7 This conclusion is supported by the ordinary meaning of “ may,” which normally indicates that one has permission or liberty to do something, not that one is required or compelled to do something. See Webster’s Third New Interna­ tional Dictionary 1396 (1976). A statute’s terms are ordinarily to be interpreted in light of the usual or customary meaning of the words themselves. See, e .g ., Southeastern Community College v. Davis, 442 U.S. 397, 405 (1979). More­ over, it is significant that in § 377, Congress spoke of reimbursement in terms of what the Secretary “ may” do, whereas it spoke of the issuance of regulations dealing with reimbursement in terms of what the Secretary “ shall” do. This contrast in the use of terms suggests strongly that when Congress wanted to impose a mandatory requirement in this statute— indeed, this very provision— it knew how to do so. If the plain language of § 377 were an insufficient basis on which to rest the conclusion that the Secretary has discretion to decide whether to condition assistance under the Act on reimbursement, then we believe that consideration of the provision’s legislative history confirms the foregoing reading of its plain meaning. The predecessor provision in the bill introduced in the Senate, S. 815, 97th Cong., 1st Sess. (1981), also was permissive on its face with respect to the issue of reimbursement. It provided: The Secretary of Defense shall . . . issue such regulations as may be necessary to insure that reimbursement for the provision of assistance, including the provision of any equipment or facility, under this chapter to any Federal, State, or local civilian law enforcement official may be obtained whenever the Secretary of Defense determines such reimbursement to be appropriate. (Emphasis added.)8 The report of the Senate Committee on Armed Services stressed that the bill’s language was intended to authorize the Secretary to provide certain indirect assistance to civilian law enforcement officials without requiring the Defense Department to provide such assistance. The report also noted that the decision whether to request reimbursement for such assistance was within the Secretary’s discretion to so act as “ appropriate.” As the report stated: The Secretary of Defense would be authorized, not required, to provide this aid. And the Department c f Defense could obtain 7 We note that because § 377 on its face deals only with "assistance” provided by Defense “ under this chapter [§§ 371-77],’*any assistance provided by the Department of Defense pursuant lo any other existing authority that predated, and is not overlapped by, this Act is nol covered by § 377. In other words, if assistance is not authonzed by the recent Act, then its provision continues to be governed by the Economy Act 8 The reimbursement provision in the Senate bill would have been a new § 374(b) of Title 10, United States Code; it appears at pages 64 to 65 of the pnnted Senate bill 469 reimbursement for any assistance provided when the Secretary determ ined such reimbursement was appropriate. S. Rep. No. 58, 97th Cong., 1st Sess. 149 (1981) (emphasis added). The House bill, H.R. 3519, 97th Cong., 1st Sess. (1981), contained the same reimbursement provision as the Senate bill.9 The report of the House Committee on Armed Services noted specifically that the provision was intended to authorize the Secretary to issue regulations “ to ensure reimbursement for provisions of assistance, equipment and facilities whenever he determines reimbursement is appropriate. . . .” (Emphasis added.) H.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 1) 164 (1981). The report of the House Committee on the Judiciary, to which the bill was sequentially referred, elaborated upon the permissive nature of the reimburse­ ment authorization: The final subsection of proposed section 374 authorizes the Secre­ tary of Defense to issue regulations which may condition the rendering c f any assistance under this Chapter upon a reimburse­ ment to the military. According to information received from the Coast Guard, United States Customs Service, and the Depart­ ment of Justice (the Federal agencies most likely to request assistance), this reimbursement provision is acceptable and should not require any immediate increase in the budgets of those agencies. The availability of this reimbursement option is not meant to serve as an excuse fo r the Secretary c f Defense to decline to cooperate in the provision c f assistance. Rather, the reimburse­ ment option should serve instead as an informal check of the magnitude and frequency of the requests made by civilian law enforcement officials. The availability cf military assistance is not intended by the Committee to be an indirect method c f increas­ ing the budget authority o f the civilian law enforcement agency. H.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 2) 11 (1981) (emphasis added). In the foregoing discussion, the House Judiciary Committee clearly sought to tread a careful line between seeming to impose an undue burden on federal civilian law enforcement agencies, on the one hand, and to impose an excessive burden on the Department of Defense by indirectly “ increasing the budget authority of the civilian law enforcement agency” involved, on the other hand. At the same time, the foregoing passage, by referring specifically to “ the reimbursement option” created by the bill (emphasis added), makes plain that reimbursement under the House bill would not be required by the bill itself, but rather was to be an option available to the Defense Department. The Committee acknowledged that the need to pay for assistance authorized by the bill was likely to operate as an informal check on the number and size of requests for such 9 The reimbursement provision appears at page 44 of the printed House bill. 470 assistance. As the Committee put it, “ the reimbursement option should serve . . . as an informal check on the magnitude and frequency of the requests made by civilian law enforcement officials.” Nevertheless, such a “ check” was evidently intended to operate as the result of a discretionary decision by the Secretary of Defense to request reimbursement in a particular case, not as the result of any requirement of reimbursement under the bill itself. The discussion of the reimbursement provision contained in the House bill by the third House Committee to which the bill was referred, the Committee on Government Operations, confirms that reimbursement was to be an option, not a requirement: Section 908 of H.R. 3519 as reported by the committee of original jurisdiction contains the following language: The Secretary of Defense may assign members of the armed forces to train Federal, State, and local law enforcement officials in the operation of military equipm ent. . . and to provide expert advice relevant to the purposes of this chapter, if the provision of such training or advice will not adversely affect the military preparedness of the United States. - An additional provision c f the section specifies that the Secre­ tary c f Defense shall issue such regulations as may be necessary to insure that reimbursement fo r the provision c f such assistance is obtained when the Secretary deems such reimbursement to be appropriate. H.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 3) 37 (1981) (emphasis added).10 During floor debate on the House bill, it was acknowledged once again that reimbursement for assistance provided to civilian law enforcement officials by the Defense Department would be an option of the Secretary of Defense. Congressman Bennett, for instance, stated that: Section 374 requires the Secretary c f Defense to issue regula­ tions: First, to insure that the provision of assistance, equipment, or facilities does not impair military training or operations neces­ sary to the military preparedness of the United States; and second, to insure reimbursement fo r the provision c f assistance obtained from the Department c f Defense when the Secretary determines it is appropriate. The regulations provided by this section will insure that the cooperation with the civilian law enforcement officials does not interfere with carrying out the primary mission of our Armed Forces, that is, military preparedness. The regula­ tion will also insure that the law enforcement cooperation is not done at the expense c f defense activities. "■ In another passage of the report of the House Committee on Government Operations, it is reaffirmed that the House bill would extend authority to the Secretary of Defense to provide training services and advice “ without reimbursement, if he determined that to be appropriate.” H R Rep. No 7 1,97th Cong., 1st Sess. (pt. 3)37(1981). 471 The results of the Armed Forces work should not be used at the cost of defense budgets to support the activities of other agencies of Government regardless of how laudable those activities might be. I understand the Department c f Defense has always required reimbursement in the p a st, and it will continue to do so under these provisions. 127 Cong. Rec. H 4056-57 (d^ily ed. July 8, 1981) (emphasis added). These remarks reflect sensitivity to the potential problems that could arise if the Defense D epartm ent were not allowed to seek reimbursement for the assistance it provides to civilian law enforcement agencies. The reimbursement option evi­ dently was designed to “ insure that the law enforcement cooperation [as autho­ rized by the bill] is not done at the expense of defense activities.” In this context, Congressman Bennett noted that “ in the past” the Defense Department had required reimbursement, and that it intended to do so in the future. At the same time, these remarks do not purport to, and they do not, state any legal require­ ment that reimbursement be sought under the bill. To the contrary, the remarks are directly tailored to protect the Defense Department’s authority to obtain reimbursement when the Secretary deems it “ appropriate.” Another pertinent discussion o f reimbursement during the House debate is the following by Congressman Hughes: Mr. C hairm an,. . . under the provisions of the bill any loaning of equipment or any loaning of personnel is reimbursable. It does not come out c f the Department c f Defense budget. We are not asking the Defense Department to use their amounts set aside for the m ilitary mission for law enforcement purposes. All we are doing is, we are trying, first of all, to codify the existing practices relative to the sharing of intelligence, the shar­ ing of base facilities, the sharing of research, and we have taken it one step further; they need equipment from time to time, but it is an empty gesture when you offer equipment and do not offer the manpower to operate the very sophisticated equipment. . . . Id. at H 4066-67 (emphasis added). Although the foregoing remarks indicate concern about using Defense Department funds appropriated for military mis­ sions to provide assistance to civilian law enforcement agencies, the comments are limited in their reference: “We are not asking the Defense Department to use their amounts set aside for the military mission for law enforcement purposes.” (Emphasis added.) We believe that this statement means only that Congress did not intend to require the Defense Department to pay for the assistance it provides as authorized by the bill. Indeed, the bill specifically empowers the Defense Department to seek reimbursement. Congressman Hughes’ comments, like those discussed above, do not purport to establish any legal requirement that reimbursement must be sought by the Defense Department, even though they indicate an expectation that reimbursement might frequently be sought. This 472 crucial point is further confirmed by the statement of Congressman Sawyer that “ the law enforcement agency requesting the military equipment is chargeable for the use of that equipment.” Id. at 4067 (emphasis added). To say that a civilian law enforcement agency is “ chargeable” under the bill is not to say that such an agency must be charged for assistance authorized by the bill. If there were any substantial doubt remaining after a survey of the foregoing comments in the legislative record about the conclusion that the Defense Depart­ ment has discretion to decide whether to condition assistance on reimbursement, such doubt is dispelled by the report of the conference committee, which stated the following about the reimbursement provision: This section authorizes the Secretary of Defense to issue regula­ tions providing that reimbursement may be a condition c f the assistance to civilian law enforcement officials under this chapter. This provision was contained, in slightly different form, in both bills. The regulation should reflect sufficient flexibility to take into consideration the budgetary resources available to civilian law enforcement agencies. H.R. Rep. No. 311, 97th Cong., 1st Sess. 122 (1981) (emphasis added). If the conference committee had sought to require the Secretary of Defense to con­ dition assistance on reimbursement, it would hardly have been consistent for the committee to have noted that the reimbursement provision provides “ sufficient flexibility to take into consideration the budgetary resources available to civilian law enforcement agencies.” Such “ flexibility” in fact is reflected in the language ultimately enacted, which provides that the Secretary of Defense “ may” con­ dition assistance under the Act on reimbursement. In view of the plain language of § 377 and the fact that the relevant committee reports and floor debates confirm that Congress sought to provide flexibility to the Secretary to determine whether to require reimbursement, we conclude that the Secretary of Defense has discretion under the Act to decide whether to request reimbursement for assistance rendered pursuant to the Act. Since the Act’s fundamental purpose was to provide the express authorization for the Defense Department to assist civilian law enforcement officials notwithstanding the general restriction under the Posse Comitatus Act, see note 2, supra, there is no longer any need for the Defense Department to rely on the Economy Act in providing the assistance authorized by the Act. In short, since the reimbursement provision of the Department of Defense Authorization Act, 1982, governs, and since that provision is permissive, we conclude that the Secretary of Defense is authorized but not required to seek reimbursement for assistance rendered under the Act. (3) In opposition to the foregoing analysis of § 377 and its legislative history, the Defense Department maintains that Congress intended to retain under this Act the strictures of the Economy Act, 31 U.S.C. § 686. This position rests on three main arguments. 473 First, the Defense Department contends that the language of § 372, which limits the provision of assistance under that section “ in accordance with other applicable law,” effectively incorporates, albeit indirectly, the Economy Act into this Act. Second, the Defense Department seeks support in a variety of passages in the legislative history indicating that Congress expected that the Defense Department would not have to pay for all of the assistance rendered under the Act. Third, the Defense Department notes that it is charged with implementing the Act by means of regulations. For this reason, the Department suggests, even if implicitly, that its interpretation should be given particular weight. We will discuss each argument in turn. A. The Language c f § 372 The Defense Department’s primary textual argument is that the phrase, “ in accordance with other applicable law,” in § 372 incorporates in this Act the law relating to reimbursement under the Economy Act, 31 U.S.C. § 686. Section 372 states: The Secretary of Defense may, in accordance with other applica­ ble law, make available any equipment, base facility, or research facility of the Army, Navy, Air Force, or Marine Corps to any Federal, State, or local civilian law enforcement official for law enforcement purposes. (Emphasis added.) The central support for this reading of the phrase, “ in accordance with other applicable law,” is the following passage from the report of the House Commit­ tee of the Judiciary, H.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 2) 9 (1981): The Committee on Government Operations expressed some con­ cern that the proposed section, as reported by the Armed Services Committee, could cause potential conflicts with the application cf other property disposition statutes. Thus, at the recommendation of the Committee on Government Operations and with the support of the Department of Defense, the [Judiciary] Committee added the phrase ‘in accordance with other applicable law’ to clarify the continued application c f the disposition procedures c f the Economy Act, 31 U.S.C. 638a, and other similar provisions. See, e .g ., 10 U .S.C . 2576 a n d 2667 (governing the disposition of certain real and personal military property). (Emphasis added.) The foregoing reference to the “disposition procedures of the Economy Act, 31 U .S.C . 638a,” is said by the Defense Department to demon­ strate that Congress intended to retain the reimbursement requirements that would apply if the provision of assistance to civilian law enforcement agencies underthe Act were to proceed entirely under the Economy Act, 31 U.S.C. § 686. 474 We have a number of difficulties with this contention. First, the statute cited as the Economy Act in the foregoing passage from the Committee report, 31 U.S.C. § 638a, is not the same as the statute upon which the Defense Depart­ ment seeks to rely, namely, 31 U.S.C. § 686. The statute actually cited by the Committee— 31 U.S.C. § 638a— deals specifically with the purchase, opera­ tion, use, and maintenance of passenger motor vehicles and aircraft by the federal government." Although it might be suggested that the Committee report made a mistake in citation, the statute actually cited does appear directly relevant to the point the Committee report was making, namely, that “ disposition pro­ cedures” specifically relating to federal property should continue to apply. Moreover, it bears noting that such “ disposition procedures” are not in any obvious or necessary sense “ similar” to principles of reimbursement under 31 U.S.C. § 686.12 The two statutes cited by the Committee in addition to 31 U.S.C. § 638a deal respectively with the sale to law enforcement and firefight­ ing agencies of surplus military equipment, 10 U.S.C. § 2576, and leases by military departments of “ non-excess” property, 10 U.S.C. § 2667. These stat­ utes, combined with 31 U.S.C. § 638a, place specific limits on the disposition of federal property. The particular requirements in these three statutes are simply not the same as the general principles concerning reimbursement on which the Defense Department seeks to rely. The evidently limited reference of the “ other applicable law” language in § 372 is confirmed by a passage in the report of the House Committee on Government Operations. It should be recalled that the House Judiciary Commit­ tee, in adding the “ other applicable law” language, stated that it was doing so in response to the concern of the Government Operations Committee that the lack of such language “ could cause potential conflicts with the application of other property disposition statutes.” Accordingly, the explanation of the Government Operations Committee of the meaning of the phrase “ other applicable law” should be given particular weight. That Committee explained the language as follows: Under an amendment adopted by the Judiciary Committee on June 9,1981, the provision of military equipment and facilities to law enforcement officials would be made ‘in accordance with applicable law.’ It is the Committee’s understanding that this language would bring [the section] under the terms of the proper­ ty management and disposal provisions c f the Federal Property and Administrative Services A ct c f 1949P 11 U nder3l U S.C § 638a, a number oflimitations are placed on the purchase or hire of passenger motor vehicles and aircraft by the federal government. 12 The need to be clear about exactly which statutes were intended to remain applicable under § 372 is obvious in light of such additional statements in the legislative history as the following: "T he sale, donation or other outright transfer of such equipment to civilian law enforcement agencies shall be in accordance with existing statutes covering such transfers” S. Rep. No. 58, 97th Cong., 1st Sess. 149 (1981) (emphasis added). This statement suggests, but by itself does not make fully clear, that the relevant statutes are those dealing specifically with property or equipment transfers, which constitute a distinct subject from that o f reimbursement for any of a variety of types of assistance provided by one agency to another under 31 U S C § 686. 13 See also H .R. Rep. No 311, 97th Cong., 1st Sess 119 (1981) ("This provision [speaking of “ other applicable law” ] assures the continued application of existing law, such as the Federal Property and Administrative Services Act of 1949” ) 475 H.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 3) 37 (1981). This reference to the Federal Property and Administrative Services Act underscores that the Govern­ ment Operations Committee’s intention was to guarantee that that statute’s provisions— not general reimbursement principles under 31 U.S.C. § 686— would continue to operate under this Act. In short, we are unconvinced that the inclusion in § 372 of the “ other applicable law” language was intended to have the far-reaching effects attributed to the language by the Defense Department. We believe that the phrase “ other applicable law” in § 372 refers to the specific statutes cited in the legislative history, which do not include 31 U .S.C . § 686. This conclusion is buttressed by the canon of statutory construction that each provision of a statute should be read to have independent meaning.14 If § 372 had been intended to have the meaning attributed to it by the Defense Department, it would constitute in effect a nullification of the plain language of § 377, a result finding no support in the language, history, or purposes of the A ct.15 B. The A ct’s Legislative History The Defense Department also argues that the legislative history supports its view that the Secretary of Defense has no general authority to waive reimburse­ 14 Courts have noted that, in the normal case, every word Congress uses in a statute should be given effect See, e g , Reiter v. Sonotone Corp., 4 4 2 U S 330, 339 (1979). This approach is reflected in the notion that the “ meaning of a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in view,” Panama Refining Co. v Ryan, 293 U S 388, 439 (1935) (Cardozo, J , dissenting), and that “ a section of a statute should not be read in isolation from the context of the whole Act. . .” Richards v. United Stales, 369 U S. 1,11 (1962). Moreover, a court interpreting a statute is not “ at liberty to imply a condition which is opposed to the explicit terms of the statute . . To [so] hold is not to construe the Act but to amend it ” Detroit Trust Co. v The Barium , 293 U S. 21, 38 (1934), quoted in Fedorenko v United States, 449 U S. 490, 513 (1981) 15 We also note that § 371 specifies that action pursuant to it shall be “ in accordance with other applicable law.” This provision authorizes the sharing of information obtained by the Defense Department “ dunng the normal course of military operations.” To what does the “ in accordance with other applicable law” language in § 371 refer9 To be consistent with its argum ent about § 372, the D efense Department apparently would have to argue that it refers to the Economy Act, 31 U .S .C . § 686 However, we are aware of no legislative history to that effect Indeed, the House Judiciary Committee specifically stated that the “ other applicable law” language in § 371 refers to the Privacy Act (without mentioning 31 U S.C. § 686). “ The phrase ‘in accordance with other applicable law’ as used in section 371 is meant to continue the application of the Privacy Act to this type of intelligence sharing. See 5 U.S.C. 552a.” H .R. Rep. No 71, 97th C ong., IstS ess. (pt 2)8 (1 9 8 1 ) S e ea/w H .R . Rep. No 3 1 1 ,97thC ong , IstSess. 119(1981). This explanation of § 371 seems to confirm a pattern by which C ongress, in referring to “ other applicable law” in certain provisions granting the Defense Department authonty to provide assistance, was intending to refer to statutes directly bearing on the specific subject matter of the authorizing provision in question Such a pattern is not consistent with the Defense D epartm ent’s suggestion that “ other applicable law” refers to a broad set of principles relating to reimbursement under the Economy Act in general Furthermore, even if the phrase refemng to “ other applicable law ” in §§ 372 and 371 were to be construed— contrary lo what we consider the reasonable construction— as effectively nullifying the reimbursement provision, it is difficult to understand how such a construction would lead to the result sought by the Defense Department with respect lo assistance provided under §§ 373 and 374 The latter two provisions do not contain “ other applicable law” language. Although they do refer to equipment provided under § 372, their subjects are distinct from that of § 372: § 373 deals with the use of Defense personnel in training and advisory capacities, and § 374 deals with the use o f Defense'personnel.in operating and maintaining equipment provided under § 372 In order for the Defense Department to establish its position with respect to §§ 373 and 374, it would be necessary to conclude that the fact that those sections involve the use of personnel in connection with equipment provided under § 372 is sufficient tc limit the assistance of such personnel in the same manner that the use of equipment is said to be limited under § 372 “ in accordance with other applicable law” We believe lhat this argument is excessively attenuated. Not only does i' depend on an interpretation of “ other applicable law ” that is not borne out by the legislative history, but it alsc depends on reading into §§ 373 and 374 language that is not contained in those provisions 476 ment for assistance provided under the Act. The initial difficulty with this argument is that legislative history cannot serve to supersede the plain language of a statutory provision such as § 377. It is an established canon of statutory construction that “ legislative intention, without more, is not legislation.” Train v. City of New York, 420 U.S. 35, 45 (1975). In any event, we do not read the passages in the legislative history on which the Defense Department seeks to rely as supporting the view advanced by that Department. The problems with relying on the passages may be shown with reference to each one. One of the central passages relied upon in the March 26, 1982, letter from the Deputy Secretary of Defense to the Attorney General is the following drawn from remarks by Congressman Hughes during floor debate on the House bill: [UJnder the provisions of the bill any loaning of equipment or any loaning of personnel is reimbursable. It does not come out of the Department of Defense budget. We are not asking the Defense Department to use their amounts set aside fo r the military mission fo r law enforcement purposes. 127 Cong. Rec. H 4066 (daily ed. July 8, 1981). These remarks are quoted in their fuller context above. The main observation to make about the foregoing remarks is that they merely state that the Defense Department is not required under the Act to use money appropriated specifically for military purposes to pay for assistance provided under the bill. As Congressman Hughes noted, Congress is “ not asking the Defense Department to use their amounts set aside for the military mission for law enforcement purposes.” That, however, is not the question before us. Our question is whether the Defense Department has discretion under the Act to determine whether it will condition authorized assistance on reimbursement. It is, in brief, a non sequitur to argue that because Congressman Hughes indicated that Congress was not requiring the Defense Department to use military funds to pay for assistance provided under the bill, therefore the Defense Department is required by the Act to demand reimbursement when it does provide assistance. The latter proposition, in our view, is not established by the quoted comments. Another passage relied upon by the Defense Department is taken from testi­ mony by the Department’s General Counsel on June 3, 1981, as follows: Section 374 [of the House bill] contains two provisions of consid­ erable importance to the Department of Defense. . . .Subsection (b) requires the Secretary to issue regulations governing reim­ bursement to the Department of Defense, an essential element of the legislation. The funding of nonmilitary law enforcement activities is the responsibility of those agencies given the au­ thority to investigate and prosecute crimes against the United States. The Department c f Defense is pleased to provide assist­ ance, consistent with the limitations set forth in this legislation 477 and other laws, but we cannot use defense resources to fund the activities c f other agencies cf the federal government. We have required reimbursement in the past when costs have been incurred in the provision cfsuch assistance, and we shall continue to do so under the provision cf this legislation if enacted. Posse Comitatus Act: Hearings on H.R. 3519 Before the Subcomm. on Crime cf the House Comm, on the Judiciary, 97th Cong., IstSess. 15—16 (1981) (empha­ sis added). In the Defense Department’s view, this statement confirms that it always has intended to approach the issue of reimbursement under the Act in the same manner in which it approached reimbursement prior to the Act’s passage. Our difficulty with relying on this testimony in the present context is that it merely reflects the Defense Department’s intention at the time of testimony with respect to implementing any powers it would have under the bill, if enacted, and it discusses the Department’s past practices regarding reimbursement. However, these are not the issues with which we are primarily concerned. Our question is whether the Act requires the Defense Department to implement its stated desire of seeking reimbursement in certain circumstances.16 The testimony of the General Counsel establishes only that the Defense Department informed Con­ gress that it would generally seek reimbursement, but this does not clarify the fundamental issue whether that Department is legally compelled to do so. An additional passage in the legislative history relied upon by the Defense Department is the following from the report of the House Judiciary Committee: The final subsection of proposed section 374 authorizes the Secre­ tary of Defense to issue regulations which may condition the rendering of any assistance under this Chapter upon a reimburse­ ment to the military. According to information received from the Coast Guard, United States Customs Service, and the Depart­ ment of Justice (the Federal agencies most likely to request assistance), this reimbursement provision is acceptable and should not require any immediate increase in the budgets of those agencies. The availability of this reimbursement option is not meant to serve as an excuse fo r the Secretary c f Defense to decline to cooperate in the provision cf assistance. Rather, the reimburse­ ment option should serve instead a s an informal check c f (sic) the magnitude and frequency c f the requests made by civilian law enforcement officials. The availability c f military assistance is not intended by the Committee to be an indirect method of increasing the budget authority c f the civilian law enforcement agency. H.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 2) 11 (1981) (emphasis added). 16 One must bear in mind the fundamental distinction between a requirement to do X and the authority to d o X . In this context, the Defense Department has the authority to implement its stated intention of seeking reimbursement under the A ct's reimbursement provision This does not mean, however, that the Department is necessarily required to seek reimbursement. The tw o matters are a n d must be kept analytically distinct. 478 Our inability to derive from the foregoing passage the conclusion preferred by the Defense Department rests primarily on the fact that the passage speaks of reimbursement in terms of an “ option” available to the Defense Department, not in terms of a legal requirement. As we noted earlier, it is clear that the Committee was sensitive to the need to balance the interests of the Defense Department in not having to pay for all of the assistance it provides to civilian law enforcement officials against the legislative desire to authorize such assistance. But it simply does not follow from this that the Defense Department is legally required under the Act to seek reimbursement. If it were, the Department would not have the “ option” evidently contemplated by the Committee.17 To summarize, the Defense Department’s argument based on legislative histo­ ry founders, first, on the canon of construction that legislative history cannot overcome the plain language of a statutory provision and, second, on the fact that the passages cited do not appear directly to support the notion that the Depart­ ment is required by the Act to seek reimbursement for assistance authorized by the Act. C. The Defense Department’s Construction c f the Act Implicit in the Defense Department’s position is the further argument that its interpretation of Congress’ intention should be controlling since it is the agency charged with implementing the statute by regulation. Also, it actively partici­ pated in the legislation’s drafting, and thus may be presumed to have intimate knowledge of the congressional design. We acknowledge that these facts dis­ tinguished the present case from one in which an agency charged with imple­ menting a statute has not been similarly involved with the statute in question. Surely a court reviewing the legal issue presented to us would accord a responsi­ ble agency’s view a certain respect in light of the normal understanding that such an agency is in a position to grasp the legislature’s intent.18 However, there are two difficulties with relying on any presumption that the Defense Department’s views should be accorded special weight in this case. First, the Defense Department is not the only agency in the Executive Branch affected by the authority conferred by the Act, nor is it the only agency that was involved in deliberations prior to the Act’s passage. This Department, as the major civilian law enforcement agency, is intimately affected by the Act and played a role in deliberations leading to its enactment. Accordingly, any argu­ ment by the Defense Department that its views should be accorded special consideration must be balanced against the fact that it is not the only department whose views are entitled to consideration. More importantly, a court will not blindly give weight to a particular agency’s views of a statute affecting the agency. To the contrary, courts have made clear 17 For further discussion of this passage from the House Judiciary Committee report, see supra. 18 See generally Red Lion Broadcasting Co. v. FCC, 395 U S. 367, 381 (1969); Zemel v. Rusk, 381 U .S 1, 11-12 (1965); Udall v. Tollman, 380 U.S. 1, 16 (1965). See also SEC v Sloan, 436 U.S 103 (1978); General Electric Co. v Gilbert, 429 U.S. 125, 141 (1976). 479 that their primary responsibility of deciding issues of law arising in cases involving challenges to an agency’s action requires them to reach an independent judgment in light of statutory language and legislative history. Courts in general will not defer to an administrative interpretation when it is not consistent with a statute’s language and history.19 In this case, there is no doubt that the Secretary of Defense, subject to the supervisory power of the President, has the authority and responsibility to issue regulations dealing with the issue of reimbursement. However, the Secretary may not read into the statute a legal requirement that is not contained therein. In our view, for the reasons stated earlier, we do not believe that the Secretary is required by the Act to seek reimbursement. III. Conclusion In conclusion, we believe that the Act’s reimbursement provision means what it says: the Secretary of Defense “ shall issue regulations providing that reim­ bursement may be a condition of assistance” under the Act. We cannot find in this provision, its legislative history, other provisions of the statute, or the Act’s legislative history in general any legal requirement that reimbursement be sought under the Act. Also, since this Act provides authority for the Defense Depart­ ment to assist civilian law enforcement officials in certain circumstances, there is no occasion to rely on the Economy Act, 31 U.S.C. § 686, as the authority under which the Defense Department will provide such assistance. Therefore, this is not a situation in which reimbursement is governed by the law that would have applied under the Economy Act itself. T heodore B. O lson Assistant Attorney General Office of Legal Counsel 19 A court’s deference to an agency’s construction is constrained by the statute *s language, history and purposes. See Teamsters v. D aniel. 439 U .S 551, 566 n 2 0 (1979), Morton v. Ruiz, 415 U .S. 199, 237 (1974); Billings v. Truesdell, 321 U S. 542, 552-53 (1944); Great Northern Ry Co. v. United States, 315 U.S 262, 275-76(1942); U nited States v. Jackson, 280 U .S 183, 193 (1930). Courts are the final authorities on issues of statutory interpretation and “ are not obliged to stand aside and rubber stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate o r that frustrate the congressional policy underlying a statute ” Volkswagenwerk Aktiengesellschaft v. FMC, 390 U .S. 261, 272 (1968). 480

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Constitutional Issues Raised by Commerce, Justice, and State Appropriations Bill A provision prohibiting the use of appropriated funds for United Nations peacekeeping missions involving the use of United States Armed Forces under the command of a foreign national unconstitutionally constrains the President’s authority as Commander in Chief and his authority over foreign affairs. A provision prohibiting the use of appropriated funds for cooperation with, assistance to, or other support for the International Criminal Court would be unconstitutional insofar as it would prohibit the President from providing support and assistance to the ICC under any and all circumstances, but it can be applied in a manner consistent with the President’s constitutional authority in the area of foreign affairs. November 28, 2001 MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT This memorandum responds to your request for our views on four provisions in H.R. 2500, the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Bill for Fiscal Year 2002, 107th Cong. (2001) (“CJS appropriations bill”): sections 609 (participation in United Nations peacekeeping), 612 (Department of Justice anti-terrorism restructuring), 626 (removing foreign sovereign immunity in pending Iran hostages litigation), and 630 (support for International Criminal Court). We conclude that section 626 does not raise constitutional concerns, but that section 609 unconstitutionally constrains the President’s Commander-in-Chief and foreign affairs authority, section 612 represents the sort of legislative micromanagement of the Executive Branch that should be resisted on separation of powers policy grounds, and application of section 630 in certain circumstances would unconstitutionally interfere with the President’s foreign affairs authority. I. Section 609 Section 609 provides that: None of the funds made available by this Act may be used for any United Nations undertaking when it is made known to the Federal official having authority to obligate or expend such funds: (1) that the United Nations undertaking is a peacekeeping mission; (2) that such undertaking will involve United States Armed Forces under the command or operational control of a foreign national; and (3) that the President’s military advisors have not submitted to the President a recommendation that such involvement is in the national security 279 227-329 VOL_25_PROOF.pdf 289 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 interests of the United States and the President has not submitted to the Congress such a recommendation. Section 609 thus prohibits the use of appropriated funds (by entities receiving appropriations under the CJS appropriations bill) for the participation of United States Armed Forces in a United Nations peacekeeping mission under foreign command, unless the President’s military advisors have recommended such involvement and the President has submitted such recommendation to Congress. This provision first appeared in CJS appropriations bills in 1996. We have consistently taken the position that it is unconstitutional and have submitted signing statement language saying that the provision unconstitutionally constrains the President’s Commander-in-Chief authority and that the President will apply it consistent with his constitutional responsibilities. Our position has been based on the analysis that it is unconstitutional for Congress to place conditions, whether substantive or procedural, on the President’s exercise of his constitutional authority—as Commander in Chief and with respect to the conduct of diplomacy—to order United States military participation in an United Nations peacekeeping operation. Specifically, it is unconstitutional to require the President to satisfy the requirements set forth in section 609: that the President’s military advisors have recommended that the involvement in the peacekeeping operation is in the national security interests of the United States and that the recommendation has been submitted to Congress. Our analysis starts with the constitutional principle that responsibility for the conduct of foreign affairs and for protecting the national security are “‘central’ Presidential domains.” Harlow v. Fitzgerald, 457 U.S. 800, 812 n.19 (1982). The President’s constitutional responsibilities in both these areas flow from the specific grants of authority in Article II making him Chief Executive, U.S. Const. art. II, § 1, cl. 1, and Commander in Chief, id. art. II, § 2, cl.1, see Nixon v. Fitzgerald, 457 U.S. 731, 749-50 (1982), as well as from the “unique position” that the President occupies in the constitutional structure, id. at 749. The President’s exclusive authority to conduct the Nation’s diplomatic relations with other States derives primarily from the Vesting Clause and the Commander-in-Chief Clause, and is buttressed by the President’s more specific powers to “make Treaties,” U.S. Const. art. II, § 2, cl. 2; to “appoint Ambassadors . . . and Consuls,” id.; and to “receive Ambassadors and other public Ministers,” id. art. II, § 3. The Supreme Court has consistently “recognized ‘the generally accepted view that foreign policy [is] the province and responsibility of the Executive.’” Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988) (quoting Haig v. Agee, 453 U.S. 280, 29394 (1981)). See also Ludecke v. Watkins, 335 U.S. 160, 173 (1948) (President is the nation’s “guiding organ in the conduct of our foreign affairs”); Ex parte Hennen, 38 U.S. (13 Pet.) 230, 235 (1839) (“As the executive magistrate of the country, he is the only functionary intrusted with the foreign relations of the 280 227-329 VOL_25_PROOF.pdf 290 10/22/12 11:10 AM Constitutional Issues Raised by Commerce, Justice, and State Appropriations Bill nation.”); Secretary of State Thomas Jefferson, Opinion on the Question Whether the Senate Has the Right to Negative the Grade of Persons Appointed by the Executive to Fill Foreign Missions (Apr. 24, 1790), in 5 The Writings of Thomas Jefferson 161 (Paul L. Ford ed., 1895); The President’s Compliance with the “Timely Notification” Requirement of Section 501(b) of the National Security Act, 10 Op. O.L.C. 159, 162 (1986) (“The presumptively exclusive authority of the President in foreign affairs was asserted at the outset by George Washington and acknowledged by the First Congress.”). It is vital to the President’s ability to conduct diplomatic relations that he should have the authority to deploy United States Armed Forces in the international arena, and be able to threaten credibly to do so. 1 Furthermore, the authority to deploy military force in the defense of the security and interests of the United States is expressly placed under the President’s authority by the Commander-inChief Clause, U.S. Const. art. II, § 2, cl. 1. The “inherent powers” of the President as Commander in Chief are “clearly extensive.” Loving v. United States, 517 U.S. 748, 776 (1996) (Scalia, J., concurring in part and concurring in the judgment). As Attorney General, later Justice, Robert Jackson explained: Article II, section 2, of the Constitution provides that the President “shall be Commander in Chief of the Army and Navy of the United States.” By virtue of this constitutional office he has supreme command over the land and naval forces of the country and may order them to perform such military duties as, in his opinion, are necessary or appropriate for the defense of the United States. These powers exist in time of peace as well as in time of war. . . . Thus the President’s responsibility as Commander in Chief embraces the authority to command and direct the armed forces in their immediate movements and operations designed to protect the security and effectuate the defense of the United States. . . . [T]his authority undoubtedly includes the power to dispose of troops and equipment in such manner and on such duties as best to promote the safety of the country. 1 Longstanding historical practice supports the claim of presidential authority to deploy the armed forces as a tool of foreign policy. See, e.g., Memorandum on the Authority of the President to Repel the Attack in Korea, 23 Dep’t of State Bull. 173, 174 (1950) (historical practice supports use of United States forces “in the broad interests of American foreign policy”). The President has “‘authority to commit troops overseas without specific prior Congressional approval “on missions of good will or rescue, or for the purpose of protecting American lives or property or American interests.”’” The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, 25 Op. O.L.C. 188, 197 (2001) (quoting Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. 6, 6 (1992) (Barr, A.G.) (quoting Training of British Flying Students in the United States, 40 Op. Att’y Gen. 58, 62 (1941) (Jackson, A.G.))). 281 227-329 VOL_25_PROOF.pdf 291 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 Training of British Flying Students in the United States, 40 Op. Att’y Gen. 58, 6162 (1941). Congress cannot, in the manner set forth in section 609, place impediments on the President’s ability to deploy United States forces abroad for purposes he deems vital to the national security. 2 As we have noted, long historical practice supports the legitimacy of the President’s deploying military forces abroad in order to protect the nation’s security and to uphold its interests. Moreover, as Commander in Chief, the President must be able to determine, not only whether United States Armed Forces are to be deployed abroad, but also under what conditions they are to be deployed. Thus, the President has the authority to decide, within applicable constitutional limits, what command structures the forces deployed are to have, what tactics they are to adopt, what military objectives they are to pursue, and— most relevantly here—whether and how they are to cooperate with foreign or international forces in the same theater of operations. Such decisions implicate both military and diplomatic judgments which the President alone is constitutionally empowered to make. Taking account of military needs and of foreign relations, the President may well conclude, in particular circumstances, that it serves the nation’s security and foreign policy best to deploy our forces as part of a United Nations operation, rather than unilaterally (or not at all). 3 Congress is without power to prevent the President from acting on that conclusion. The fact that in section 609 Congress is placing a condition on the President’s exercise of his constitutional authority indirectly, through the appropriations process, rather than as a direct mandate, does not change our conclusion. “Broad as the spending power of the Legislative Branch undoubtedly is, it is clear that Congress may not deploy it to accomplish unconstitutional ends.” Presidential Certification Regarding the Provision of Documents to the House of Representatives Under the Mexican Debt Disclosure Act, 20 Op. O.L.C. 253, 266 (1996). Of particular relevance in the present context is the principle that “‘Congress cannot use the appropriations power to control a Presidential power that is beyond its direct control.’” Id. (citation omitted). The Executive Branch’s insistence on this principle is longstanding. In 1860, President Buchanan issued a signing statement denying Congress’s power to interfere with his authority to issue orders to military officers through the device of 2 None of Congress’s enumerated powers in Article I appears to provide a basis for limiting, in the manner proposed by the bill, the authority of the President to make the deployments in question. We do not see, for example, how the proposed prohibition on deployments could fairly be described as an exercise of Congress’s power to “declare War,” U.S. Const. art. I, § 8, cl. 11; of the power to “raise and support Armies,” id. cl. 12; or to “make Rules for the Government and Regulation of the land and naval Forces,” id. cl. 14. 3 See John C. Yoo, Kosovo, War Powers, and the Multilateral Future, 148 U. Pa. L. Rev. 1673, 1707-08 (2000) (explaining why multilateralism was preferable to unilateralism from the United States’ point of view in responding to crisis in Kosovo). 282 227-329 VOL_25_PROOF.pdf 292 10/22/12 11:10 AM Constitutional Issues Raised by Commerce, Justice, and State Appropriations Bill a condition on the availability of appropriated funds. The President therefore construed the statute at issue not to work such an interference. See Signing Statement of President Buchanan to the House of Representatives (1860), reprinted in 7 A Compilation of the Messages and Papers of the Presidents 3128 (James D. Richardson ed., 1897). The views expressed in the signing statement were subsequently reviewed and endorsed by an opinion the President requested from Attorney General Black. The Attorney General wrote that “[i]f Congress had really intended to [interfere with the President’s command authority], that purpose could not be accomplished in this indirect manner any more than if it was attempted directly.” Memorial of Captain Meigs, 9 Op. Att’y Gen. 462, 469 (1860). Since that time, the Executive has consistently denied the binding effect of appropriations conditions that violate the constitutional separation of powers or usurp the President’s constitutional authority. Finally, we do not think that section 609’s authorization to participate in a peacekeeping operation if the President’s military advisors have recommended the participation and the recommendation has been submitted to Congress saves section 609 from unconstitutionality. Congress can exempt the President from a legislative restriction only if it has the authority to impose that restriction in the first place. For the reasons stated above, we do not think Congress has such power. II. Section 612 Section 612 addresses the subject of the organization of the Department of Justice with respect to combating terrorism. Subsection (a) of section 612 requires the President to submit as part of the fiscal year 2003 budget to Congress a proposal to restructure the Department of Justice to include a coordinator of Department of Justice activities relating to combating domestic terrorism, including State and local grant programs subject to the authority of the Attorney General, and who will serve as the Department of Justice representative at interagency meetings on combating terrorism below the Cabinet level. Viewed in isolation, subsection (a) appears to require the President to submit a legislative proposal to Congress, which would raise constitutional concerns under the Recommendations Clause, which provides that the President “shall from time to time . . . recommend to [Congress] . . . such Measures as he shall judge necessary and expedient.” U.S. Const. art. II, § 3. Under the Recommendations Clause, Congress cannot compel the President to submit legislative proposals to Congress. When subsection (a) is read in conjunction with the remainder of section 612, however, it is apparent that section 612 does not require the President to submit a 283 227-329 VOL_25_PROOF.pdf 293 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 legislative proposal. Rather, he is being given the choice of submitting a legislative proposal under subsection (a) or acquiescing in the congressional proposal set forth in the remainder of section 612. Subsection (b) provides that “[i]f the President does not submit a proposal as described in subsection (a), or if Congress fails to enact legislation establishing a new position described in subsection (a), by June 30, 2002, then effective on such date subsections (c) through (f) [the remaining provisions of section 612] shall take effect.” Those remaining subsections establish the position of Deputy Attorney General for Combating Domestic Terrorism. Thus, the legislative proposal provision of subsection (a) is not a mandatory requirement for the President, but is merely part of a mechanism created by the entirety of section 612, under which the congressional enactment set forth in subsections (c) through (f) will go into effect if the President does not propose an alternative approach to restructuring the Department of Justice to deal with terrorism. The President is not required by section 612(a) to submit legislation to Congress because he has the choice of accepting the congressional approach set forth in the rest of section 612. Although we do not believe that section 612 violates the Recommendations Clause, it does represent the sort of legislative micromanagement of the Executive Branch that we have objected to in the past. See Common Legislative Encroachments on Executive Branch Authority, 13 Op. O.L.C. 248, 253-54 (1989) (stating that “Congress’ recent interest in determining the precise organizational structure of executive branch departments . . . seriously threatens the executive branch’s ability to effectively and efficiently fulfill its obligations”). By requiring that a particular executive officer coordinate specific policy and executive decisions, section 612 infringes upon the President’s constitutional authority to direct the activities of the Executive Branch. While Congress has broad authority to determine what laws the President must enforce, we do not believe that Congress has an entirely free hand in determining how the Executive Branch must be organized to enforce those laws. Indeed, if it did, the Executive Branch would be substantially controlled and administered by the Legislative Branch. Thus, on separation of powers policy grounds, we believe that Congress’s effort to restructure the Department of Justice should be vigorously resisted. III. Section 626 Subsection (c) of section 626 would amend provisions of the Foreign Sovereign Immunities Act (“FSIA”) that establish the circumstances in which foreign states are not immune from the jurisdiction of the courts of the United States in civil actions brought against them. Section 626(c) would amend section 1605(a)(7)(A) of the FSIA by specifying that any “act . . . related to” a designated case against the Government of Iran presently pending in the U.S. District Court for the District 284 227-329 VOL_25_PROOF.pdf 294 10/22/12 11:10 AM Constitutional Issues Raised by Commerce, Justice, and State Appropriations Bill of Columbia is not protected by foreign sovereign immunity under the FSIA. The case designated in the provision is Roeder v. Islamic Republic of Iran, No. 1:00CV03110(ESG) (D.D.C.). That case, we are advised, is based upon the Iranian Government’s actions in connection with the detention and mistreatment of hostages in the U.S. Embassy in Teheran in 1979. The Civil Division advises that a default judgment has been entered against Iran in that case and proceedings to assess damages remain to be held in the U.S. District Court. The United States has filed a motion to intervene and a motion to vacate the judgment, which motions are presently pending. We do not believe section 626(c) raises constitutional concerns. This provision would merely establish by statute that Iran does not have sovereign immunity in U.S. courts with respect to the acts related to the Iran hostage crisis that form the basis of the claim in Roeder—a claim that is the subject of ongoing litigation and which has not been reduced to final judgment. Nothing in the Constitution bars Congress from enacting such legislation. In particular, the provision does not violate the principles of the Supreme Court’s precedents in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995), or United States v. Klein, 80 U.S. (13 Wall.) 128 (1871). Under Plaut, Congress may not enact legislation that requires federal courts to reopen or otherwise alter final judgments. Because the Roeder case has not been reduced to final judgment, the Plaut principle is inapplicable. Even if the default judgment in question were a final judgment at this stage, section 626(c) would still not appear to violate Plaut because (by denying sovereign immunity) it appears to reinforce, rather than reopen, the validity of the judgment against Iran. Klein, on the other hand, is sometimes cited for the general proposition that Congress may not prescribe to the courts a rule of decision to dictate the court’s interpretation of the law in a particular case. Klein does not, however, prohibit Congress from changing the underlying law that governs in a pending case, even if that case was still pending when the change in the law was made. As explained by the Supreme Court in Plaut, “[w]hatever the precise scope of Klein, . . . later decisions have made clear that its prohibition does not take hold when Congress ‘amend[s] applicable law.’” 514 U.S. at 218 (quoting Robertson v. Seattle Audubon Soc., 503 U.S. 429, 441 (1992)). In addition, we do not believe that section 626(c) is constitutionally objectionable as an improper congressional interference with the President’s foreign affairs powers. The Supreme Court has firmly upheld the constitutionality of the FSIA’s regulation of foreign sovereign immunity as a valid exercise of Congress’s power to regulate foreign commerce and as falling within the proper bounds of Congress’s Article III powers as well. See Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 496-97 (1983). Although the provisions of section 626(c) are very specific in their coverage, we cannot say that they exceed the proper scope of 285 227-329 VOL_25_PROOF.pdf 295 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 legislative regulation upheld by the courts in granting or withholding sovereign immunity to foreign states in the courts of the United States. 4 IV. Section 630 Section 630 provides that “[n]one of the funds appropriated or otherwise made available by this Act shall be available for cooperation with, or assistance or other support to, the International Criminal Court [(“ICC”)] or [its] Preparatory Commission [(“Commission”)].” We believe that section 630 would be unconstitutional to the extent that it would prohibit the President, through his subordinates, from providing support and assistance to the ICC or the Commission under any and all circumstances. Therefore, we have submitted signing statement language saying that the President will apply this provision consistent with his constitutional authority in the area of foreign affairs. Section 630 can be given effect consistent with the Constitution. Prohibiting technical or ministerial cooperation with or assistance to the ICC or the Commission would generally not interfere with the President’s exercise of his constitutional authority, and therefore as applied to those circumstances section 630 would not be constitutionally problematic. Serious as-applied constitutional difficulties would arise under section 630, however, if its prohibition were to apply to certain diplomatic activities or substantive positions the President might take with respect to or before the ICC or the Commission. The Constitution commits to the President the primary responsibility for conducting the foreign relations of the United States, see, e.g., Dep’t of Navy v. Egan, 484 U.S. at 529 (the Supreme Court has “recognized ‘the generally accepted view that foreign policy was the province and responsibility of the Executive’”) (quoting Haig v. Agee, 453 U.S. 280, 293-94 (1981)); Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 705-06 n.18 (1976) (“[T]he conduct of [foreign policy] is committed primarily to the Executive Branch.”), and the exclusive responsibility for formulating the position of the United States in international fora and for conducting negotiations with foreign nations, see, e.g., United States v. Louisiana, 363 U.S. 1, 35 (1960) (the President is “the constitutional representative of the United States in its dealings with foreign nations”). 4 Two other issues have been raised by section 626. Subsections (a) and (b) purport to require the President to submit to Congress a detailed legislative proposal dictated by Congress and thus raise clear concerns under the Recommendations Clause. This issue is straightforward, and we have already addressed it in our comments to the Office of Management and Budget, which have included recommended language for the President’s signing statement. In addition, the National Security Council staff has submitted signing statement language indicating that the Executive Branch will act, and encourage the courts to act, with regard to subsection (c)’s removal of Iran’s sovereign immunity in the pending litigation, in a manner consistent with the obligations of the United States under the 1981 Algiers Accords that achieved the release of the hostages. This Office has cleared that language. 286 227-329 VOL_25_PROOF.pdf 296 10/22/12 11:10 AM Constitutional Issues Raised by Commerce, Justice, and State Appropriations Bill Thus, there might well be circumstances in which the President finds it necessary, in the exercise of his constitutional responsibilities, to order an executive agency to provide support or assistance to the ICC or the Commission. For example, the President might find that it served overriding United States national security and foreign policy interests to assist the ICC in investigating, capturing, or prosecuting a prominent foreign individual whose activities threaten American lives and interests. Failure to assist the ICC in such efforts by, for example, supplying intelligence information on the whereabouts or activities of such an individual could do serious and lasting harm to United States security and its international standing. It will therefore be important in applying section 630 to interpret the terms “cooperation,” “assistance,” and “support” in a way that is consistent with the understanding that the provision cannot constitutionally limit the President’s exercise of his constitutional responsibilities. Properly understood, however, these terms should not unconstitutionally constrain the President. For example, in light of the President’s exclusive constitutional responsibilities for the conduct of diplomacy, we would not interpret the Executive Branch’s participation in negotiations concerning the ICC to constitute cooperation, assistance, or support. Similarly, we do not believe the section 630 prohibition could constitutionally be applied to the sharing of intelligence information with the ICC concerning an alleged terrorist who has been brought before the ICC. As Chief Executive and Commander in Chief, the President has independent authority to gather intelligence and to control access to national security information. The Supreme Court has specifically recognized the President’s constitutional authority to control the disclosure of classified information: The President . . . is the “Commander in Chief of the Army and Navy of the United States.” . . . His authority to classify and control access to information bearing on national security . . . flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant. . . . This Court has recognized the Government’s “compelling interest” in withholding national security information from unauthorized persons in the course of executive business. . . . The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief. Dep’t of Navy v. Egan, 484 U.S. at 527. See also New York Times Co. v. United States, 403 U.S. 713, 728-29 (1971) (Stewart, J., concurring) (“If the Constitution gives the Executive a large degree of unshared power in the conduct of foreign affairs and the maintenance of our national defense, then under the Constitution the Executive must have the largely unshared duty to determine and preserve the 287 227-329 VOL_25_PROOF.pdf 297 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 degree of internal security necessary to exercise that power successfully.”). Implicit in the President’s authority to gather such information and to control access to it is the authority to disclose it to foreign nations or to international bodies if, in the exercise of his diplomatic responsibilities, he finds it proper to do so. The President may well find it necessary or advisable in particular circumstances to disclose classified information to foreign nations or to international bodies in order to promote this nation’s diplomatic objectives or to guard its interests and security. Such disclosure is a legitimate—and often, an unavoidable—exercise of the President’s diplomatic and military responsibilities. For example, the President may find it necessary to disclose to a foreign government classified information about the identity or whereabouts of a foreign terrorist, or about the extent to which that government’s security has been compromised by a third country’s intelligence operations. Or the President may need to warn a potential enemy nation (even if the information disclosed is classified) about United States military planning and capabilities, in order to deter that country from acts of aggression. JOHN C. YOO Deputy Assistant Attorney General Office of Legal Counsel 288 227-329 VOL_25_PROOF.pdf 298 10/22/12 11:10 AM

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Constitutional Limits on “Contracting Out” Department of Justice Functions under OMB Circular A-76 L itig a tio n o n b e h a l f o f th e U nited S ta te s m u st be c o n d u c te d o r c lo s e ly s u p e rv is e d by o ffic e rs o f th e U n ite d S ta te s w h o have b een a p p o in te d in c o n fo rm ity w ith th e A p p o in tm e n ts C la u s e an d w h o a re u n d e r th e s u p erv isio n o f th e A tto rn e y G e n e r a l a n d th e P r e s id e n t.’ C e r ta in p ro g r a m a n a ly s t, p ro g ram m o n ito r a n d h is to ric a l re s e a rc h su p p o rt p o s itio n s in th e D e ­ p a r tm e n t o f J u s tic e d o n o t in v o lv e g o v e rn m e n ta l a u th o rity th a t can o n ly b e e x e rc is e d by o ff ic e rs o f th e U n ite d S tates, but in s te a d in v o lv e in fo rm a tio n g a th e rin g a n d re p o rtin g d u tie s w h ic h m a y c o n s titu tio n a lly be p e rfo r m e d by p riv a te p a rtie s o n a c o n tra c t b a sis . April 27, 1990 M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l J u s t ic e M a n a g e m e n t D iv is io n You have asked for our advice concerning the constitutional limitations on employing private contractors or individuals to perform certain tasks now performed by Department of Justice employees. First, you have asked us to explore any constitutional questions raised by the contracting out of fortyeight program analyst and program manager positions responsible for grant activities in the Office of Juvenile Justice and Delinquency Prevention (“O JJDP”) and the Bureau of Justice Assistance (“BJA”). According to the D epartm ent’s notice in the January 8, 1990 Commerce Business Daily, the functions performed by these positions include, but are not limited to, the following: First, the development, monitoring, and promotion of criminal justice (including drug prevention), juvenile justice and delin­ quency prevention, and related programs administered by State and local government agencies and other public and nonprofit * E d ito r's n o te: T h e O ffice o f Legal C o u n se l has d isav o w e d the interpretation o f the A ppointm ents C la u se s e t fo rth in th is o p in io n . See M em o ran d u m for th e G eneral C ounsels o f the Federal G o v e rn ­ m en t, fro m W alter D ellin g er, A ssistant A tto rn e y G eneral, Re: The Constitutional Separation o f Powers betw een the President and Congress, at 2 0-21 n.53 (M ay 7, 1996). 94 organizations and institutions. (Congress sets certain require­ ments which these agencies must meet to qualify for federal assistance.) Second, the provision of technical assistance to State/local agencies in the form of short-term training on tech­ nical matters; dissemination of information (publications, institutes, conferences, seminars, etc.); provision of information to develop programs proposals; and preparation of program plans. The notice also indicates that as a general matter, personnel holding these positions are “responsible for administering the Federal part of the state or local government’s criminal justice or related programs.” It is our under­ standing that employees in these positions presently monitor the programs of state and nonprofit grantees and report on their compliance with federal law and grant specifications. While these reports may form the basis for federal funding decisions made by the Administrator of OJJDP or the Direc­ tor of BJA, no final decisions concerning program compliance or federal funding can be made by any of the forty-eight employees who presently occupy these positions. In addition, some of these employees may assist in the formation of program initiatives within the framework of overall policy goals set by the Administrator or the Director. Finally, some of these posi­ tions involve rendering non-binding advice to grantees concerning compliance with federal law. However, all final decisions as to actual compliance with federal law rest with the Administrator and the Director. Second, you have asked our opinion concerning the contracting out of historical research support positions in the Office of Special Investigations (“OSI”) of the Criminal Division. The work contracted out in this context would involve translation, research, and secretarial support services for OSI historians investigating individuals suspected of having committed war crimes during World War II. Finally, you have expressed the need for more general guidance concern­ ing the constitutional limitations on the application of OMB Circular A-76 to Department of Justice functions.1 In particular, you have inquired whether we adhere to the views expressed in an opinion issued by this Office in 1983 that concludes that legislation providing for the use of private counsel to represent the United States in debt collection actions is constitutionally prob­ lematic. See Memorandum to Deputy Attorney General Schmults, from Assistant Attorney General Olson, Office of Legal Counsel (May 20, 1983). ' It ap p ears to us that, absent presidential d irectiv es to the contrary, the A ttorney G eneral, as the h e ad o f the D ep artm en t o f Justice and the P resid en t's c h ie f legal advisor, has the final a u th o rity to d e te rm in e w hat po sitio n s w ithin the D epartm ent o f Justice are suitable to be co nsidered fo r c o n tractin g o ut. See S U .S .C . § 301 (“T h e h ead o f an E xecutive d e p a rtm e n t. . . m ay p rescribe re gulations fo r the g o v e rn m e n t o f h is d ep artm en t, the co n du ct o f its em ployees, the distrib u tio n and perform ance o f its b u sin ess, and the custody, use, and preservation o f its records, p apers, and p ro p erty.” ); see also Olympic Fed. Sav. & Loan A ss'n v. Office o f Thrift Supervision, T i l F. Supp. 1183, 1197 (D .D .C . 1990) (‘‘[T ]he A tto rn ey G en eral is charged w ith responsibility fo r en suring that only law fully appointed officials act on b e h a lf o f the U n ited S tates, an d c o n seq u en tly his in terp retatio n o f law on this subject is e n title d to g reat d e fe re n c e .” ). 95 II. Analysis The Constitution provides that “[t]he executive Power shall be vested in a President o f the United States of America,” and charges the President to “take Care that the Laws be faithfully executed.” U.S. Const, art II, § 1, cl. 1; art. II, § 3. The very core of the executive power is the authority to pursue civil and criminal enforcement actions on behalf of the United States. See Buckley v. Valeo, 424 U.S. 1, 138 (1976) (per curiam) (“A lawsuit is the ultim ate remedy for a breach o f the law, and it is to the President . . . that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed.’”); Morrison v. Olson, 487 U.S. 654, 691 (1988) (“no real dispute that the functions performed by the independent counsel are ‘executive’”); Springer v. Philippine Islands, 277 U.S. 189, 202 (1928) (au­ thority to enforce the laws and to appoint agents to do so are executive functions); M yers v. United States, 272 U.S. 52 (1926) (same). More gener­ ally, the executive power encompasses the interpretation and effectuation of all public law. Bowsher v. Synar , 478 U.S. 714, 733 (1986) (“Interpreting a law enacted by Congress to implement the legislative mandate is the very essence o f ‘execution’ of the law.”). Obviously, the President alone cannot assure the faithful execution of the laws, and the Appointments Clause provides the constitutional mechanism for the delegation of the executive power to a corps of federal officers under the President’s control to assist him in executing the laws. See M yers, 272 U.S. at 133 (“Each head of a department is and must be the President’s alter ego in the matters of that department where the President is required by law to exercise authority.”); see a lso In re Neagle, 135 U.S. 1, 63 (1890) (“The Constitution, section 3, Article 2, declares that the President ‘shall take care that the laws be faithfully executed,’ and he is provided with the means of fulfilling this obligation by his authority to commission all the officers of the United States, and, by and with the advice and consent of the Senate, to appoint the most important o f them and to fill vacancies.”). The Appointments Clause has both a “horizontal” and a “vertical” role to play in the separation of powers. Horizontally, it assures that executive power is not exercised by individuals appointed by, or subservient to, an­ other branch o f government. Vertically, the clause protects against the delegation of federal executive authority to private entities outside the con­ stitutional framework.2 2 T h e “ v e rtic a l” p ro te c tio n s o f the A p p o in tm en ts C lau se un d ergird the “horizo n tal" separation o f pow ­ e rs. I f th e fe d e ra l e x ec u tiv e , legislative, a n d ju d ic ia l po w ers could be granted to priv ate e n titie s to be w ie ld e d o u ts id e o f c o n stitu tio n a l strictu res, the carefu l sep aration and interm ingling o f pow ers in the C o n stitu tio n its e lf w o u ld be rendered a p a p e r g esture. Cf. Northern Pipeline Constr. Co. v. M arathon P ipeline Co., 4 5 8 U .S . 5 0 (1 9 8 2 ) (holding u n co n stitu tio n al d e leg ation o f A rticle III duties to ju d g e s not a p p o in te d in c o n fo rm ity w ith the A p p o in tm en ts C la u se ); A .L A . Schechter Poultry Corp. v. United States, 295 U .S . 495 (1 9 3 5 ) (federal le g islativ e p o w er m ay not be d elegated to p rivate parties). In ad d itio n , th e “ v ertical” o r “nondelegation” aspect o f the A ppointm ents C lause ensures that the President, th ro u g h a u n itary e x ecu tiv e branch, can b e held politically accountable for his execution o f the law s. 96 The Appointments Clause, Article II, Section 2, Clause 2, provides that: [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appoint­ ments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Head of Departments. In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), the Supreme Court examined the reach and requirements of the Appointments Clause in the context of a constitutional challenge to the composition of, and authority wielded by, the Federal Election Commission. The Commission was com ­ posed o f six voting members. The President pro tempore of the Senate, the Speaker of the House, and the President each appointed two of the voting members. None of the voting members of the Commission was nominated by the President and confirmed by the Senate in accordance with the Ap­ pointments Clause. By statute the Commission was charged with what the Supreme Court viewed as three distinct types of tasks. First, the Commission was to gather, organize, and make available to the public data concerning campaign spend­ ing and the administration of elections. The Court characterized these as “recordkeeping, disclosure, and investigative functions.” Id. at 110. Sec­ ond, the Com m ission was granted extensive power to issue binding administrative rules, to “formulate general policy” concerning the enforce­ ment of applicable statutes, and to issue advisory opinions concerning election law requirements. Id. at 110-11. Finally, the Commission was granted what the Court characterized as “direct and wide ranging” enforcement powers. Id. at 111. The Commission was authorized to institute civil actions to enforce statutory requirements, to sue for the return of campaign “matching funds” to the United States Treasury, and to issue “findings” of failure to file expenditure reports. Id. The Court began its analysis by rejecting the notion that the locution “Officers of the United States” in the Appointments Clause was merely a creature of “etiquette or protocol.” Instead, the Court viewed the term as a reference to those persons who may exercise “significant authority” under the laws of the United States. The Court stated: We think that the term “Officers of the United States” as used in Art. II, defined to include “all persons who can be said to hold an office under the government” in United States v. 97 G erm aine, [99 U.S. 508 (1879)], is a term intended to have substantive meaning. We think its fair import is that any ap­ pointee exercising significant authority pursuant to the laws o f the United States is an “Officer of the United States,” and must, therefore, be appointed in the manner prescribed by § 2, cl. 2 of that Article. Id. at 125-26. W hile the Buckley Court did not offer a comprehensive definition of what constitutes “significant authority” for purposes of the Appointments Clause, the C ourt’s treatment of the various powers and duties conferred upon the Federal Election Commission offers significant guideposts. First, the Court made clear that “vesting in the Commission primary responsibility for con­ ducting civil litigation in the courts of the United States for vindicating public rights, violate[s] Art. II, § 2, cl. 2, of the Constitution.” Id. at 140. The Court indicated that “[s]uch functions may be discharged only by per­ sons who are ‘Officers of the United States’ within the language of that section.” Id. The Court also held that the Commission’s “broad administrative powers: rulemaking, advisory opinions, and determinations of eligibility for funds and even for federal elective office itself,” constituted “significant authority” that could only be executed by properly appointed officers of the United States. Id. at 140, 141-42. The Court indicated that “each of these functions also represents the performance of a significant governmental duty exercised pursuant to a public law.” Id. at 141.3 Finally, the Court held that the Commission, as then constituted, could exercise powers of “an investigative and informative nature, falling in the same general category as those powers which Congress might delegate to one o f its own committees.” Id. at 137. These information gathering duties were, in the Court’s view, “sufficiently removed from the administration and enforcement of the public law as to permit their being performed by persons not ‘Officers of the United States.’” Id. at 139.4 1 It sh o u ld b e no ted th at the "advisory” o p in io n s o f the Federal E lection C om m ission w ere so in nam e o n ly . T h e sta tu te p ro v id e d th at any in d iv id u a l w ho a c te d in good fa ith on the b a sis o f such an opinion “ s h all b e p re su m ed to be in com pliance” w ith federal e le ctio n law “ n o tw ithstanding any o th e r provision o f law .” Buckley, 4 2 4 U .S . at 110-11. J T h e c o n stitu tio n a l c o n c e rn s ex p ressed by th e B uckley C o u rt are th e m selv e s re fle c te d in O M B C ir­ c u la r A -7 6 . T h e C irc u la r recognizes th a t ‘‘[c je rta in fu n c tio n s are in h e re n tly G o v e rn m e n ta l in n a tu re ," d e fin e d as fu n c tio n s “ w h ic h require e ith e r the ex ercise o f d iscretio n in a p p ly in g G o v e rn m e n t a u th o rity o r th e u se o f v a lu e ju d g m e n t in m aking d e c isio n s fo r the G o v e rn m e n t.” O M B C irc u la r N o. A -76 §§ 5b, 6 e (R ev . A u g . 4 , 1983). Listed e x am p les include “c rim in a l in v e stig atio n s, p ro se cu tio n s and o th e r ju d ic ia l fu n c tio n s ; m a n a g em e n t o f G o v e rn m e n t p ro g ram s re q u irin g v alue ju d g m e n ts ,” and “ sele c tio n o f p ro g ra m p rio ritie s ." Id. § 6 e (l). T h e C irc u la r in d ic a te s th at it is the policy o f the U n ited S ta te s to “ [r]e ta in G o v e rn m e n ta l [f u n c tio n s [i]n -h o u s e ,” and th a t th ese fu n c tio n s “sh all be p erfo rm ed by G o v ­ e rn m e n t e m p lo y e e s .” Id. § 5(b). 98 Buckley thus makes it clear that the exercise of rulemaking or policymaking functions requires proper authority under the Appointments Clause. See also Olympic Fed. Sav. & Loan A s s ’n. v. Office o f Thrift Supervision, 732 F. Supp. 1183 (D.D.C. 1990) (Director of the Office of Thrift Supervision exer­ cises significant rulemaking and regulatory authority and thus under Buckley must be appointed in accordance with the Appointments Clause). On the other hand, information gathering, investigative, and advisory functions that do not involve final actions affecting third party rights may be performed by private parties or “independent” contractors. Similarly, purely ministerial and internal functions, such as building security, mail operations, and physi­ cal plant maintenance, which neither affect the legal rights of third parties outside the Government nor involve the exercise of significant policymaking au­ thority may be performed by persons who are not federal officers or employees. Applying these criteria to the two types of functions at issue here, we conclude that both the forty-eight program analyst and program monitor positions and the historical research support positions do not involve the exercise of “significant authority pursuant to the laws of the United States,” as that phrase is used in Buckley. We emphasize that under Buckley private individuals may not determine the policy of the United States, or interpret and apply federal law in any way that binds the United States or affects the legal rights of third parties. Nor can any private individuals make funding decisions. See Letter for Marshall J. Breger, Chairman of the Administrative Conference of the United States, from Deputy Attorney General Bums at 4 (Nov. 10, 1986) (“Bums Letter”) (“[W]e do not believe that individuals who are not officers of the government may commit or dispose of the property of the United States.”). Properly appointed federal officials must maintain both legal and effective control over the direction of United States policy in this area as well as control over the allocation of federal funds. As we understand it, however, the program analysts and monitors in­ volved here simply study and make recom m endations concerning the compliance of various state and local programs with federal funding require­ ments. While the employees who presently occupy these positions may advise and assist in policy formation, they cannot determine the final policy of the Department of Justice. Nor can these employees take any indepen­ dent action on behalf of the United States affecting the rights o f grantees. The prior opinions of this Office indicate that such “study and report” func­ tions need not be performed by officers of the United States within the meaning of the Appointments Clause. See, e.g., Memorandum for the Attor­ ney General, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Enrolled Bill S. 118, “To Provide fo r the Establishment o f a Commission on the Bicentennial o f the Constitution’’ (Sept. 29, 1983) (Commission on the Bicentennial of the Constitution); Memorandum for Robert A. McConnell, Assistant Attorney General, Office of Legal Affairs, from Ralph W. Tarr, Deputy Assistant Attorney General, Office of Legal 99 Counsel, Re: Enrolled Bill H R. 1900 (Apr. 6, 1983).5 We also conclude that under Buckley, the duties of the historical research support positions may be performed by private persons. As a general matter, the investigation of criminal activity is an inherently governmental function performed exclusively by federal officers within the executive branch. Thus, we have no doubt that the authority to seek and execute search warrants, or to make arrests in the name o f the United States is “significant authority” under Buckley. However, as w e understand it, the historical research support personnel at issue here conduct background research and translation under the direction o f the OSI historians who are properly appointed federal offic­ ers. These support personnel have no authority to take or authorize any legal action on behalf of the United States. Rather, they are simply charged with library research, translation, and collation of data. The functions to be performed by these individuals are more akin to those of an expert witness or consultant than they are to those of an FBI agent or a federal prosecutor. Such purely informational tasks may be performed by private individuals. See Memorandum for Richard C. Stiener, Chief, United States National Cen­ tral Bureau, INTERPOL, from Larry Simms, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Establishment o f an Interpol Subbureau in Puerto Rico (Jan. 19, 1984) (information gathering and sharing functions o f United States National Central Bureau of INTERPOL may be performed by persons not officers of the United States); id. at 12 n .ll (noting that “ [e]ven private citizens can be an important source of information in the cause o f law enforcement”). As a general matter, we also reaffirm the consistent position of this Of­ fice and the Department of Justice that the authority to direct litigation on behalf of the United States may not be vested in persons who are not offic­ ers of the United States appointed in the proper manner under Article II, Section 2, Clause 2 o f the Constitution. See, e.g., Brief for the United States as Amicus Curiae Supporting Appellees at 17, Morrison v. Olson, 487 U.S. 654 (1988) (No. 87-1279) (“[T]he duty of the President to ‘take Care’ means that he, with the help of the Senate in certain cases and acting on his own or through his heads of departments in others, is responsible and accountable to the people for selecting those persons who will exercise significant au­ thority in executing the law.”); Bums Letter at 2 (“[A]ny broad delegation of authority to private persons to conduct litigation in the name of the United States is likely to raise constitutional problems.”). This position is dictated both by the Supreme C ourt’s decision in Buckley and by the broader separation of powers concerns underlying the Supreme C ourt’s Appointments Clause jurisprudence. See Buckley, 424 U.S. at 139 (“ [A]ll such suits [civil and criminal], so far as the interests of the United 5 It is q u ite p o s sib le th a t O M B C ircu lar A -7 6 ’s d e fin itio n o f in h e re n tly g o v e rn m e n ta l fu n c tio n s c o v ­ ers a w id e r ran g e o f fu n c tio n s than those th a t entail the e x e rc ise o f “sig n iftean t a u th o rity ” u n d e r Buckley. T h is o p in io n d o e s n o t a d d re ss that issue. 100 States are concerned, are subject to the direction, and within the control of, the Attorney-General.”) (quoting The Confiscation Cases, 74 U.S. (7 Wall.) 454, 458-59 (1869)); see also United States v. San Jacinto Tin Co., 125 U.S. 273, 279 (1888) (the Attorney General “is undoubtedly the officer who has charge of the institution and conduct of the pleas of the United States, and of the litigation which is necessary to establish the rights of the govern­ ment”).6 Thus, both the Appointments Clause and more general separation of powers concerns make it clear that the vesting of independent litigation authority in persons who are not federal officers or employees and who are not subject to executive branch discipline and control is unconstitutional. Were this not so, Congress could displace particular litigation authority from the executive branch and vest it in a private interest group or even in the House or Senate Counsel. We note that the Department’s support for the Debt Collection Act Amend­ ments o f 1986, Pub. L. No. 99-578, 100 Stat. 3305 (codified at 31 U.S.C. § 3718(b)), is fully consistent with this position. Those amendments autho­ rized the Attorney General to retain private counsel to assist in the collection of non-tax debts owed to the United States. In signing that legislation into law. President Reagan stated: I am approving [the debt collection amendments] knowing that the Attorney General will take all steps necessary to en­ sure that any contact entered into with private counsel contains provisions requiring ongoing supervision of the private coun­ sel so that all fundamental decisions, including whether to initiate litigation and whether to settle or compromise a claim, are executed by an officer of the United States, as required by the Constitution. Pub. Papers of Ronald Reagan 1454 (1986). The Department has issued regulations requiring the designation of “an Assistant U.S. Attorney to serve as the Contracting Officer’s Technical Rep­ resentative (“COTR”) on the contracts with private debt collection lawyers 4 We n o te that apart from the constitutional c o n strain ts exam ined in Buckley there is stro n g su pport in the statutes o rganizing the litigation authority o f the ex ecu tiv e branch fo r the p ro p o sitio n that on ly o fficers o f the U n ited S tates m ay conduct litig atio n in the nam e o f the U n ited States. S e c tio n 3106 o f title 5 pro v id es that, in g en eral, agency and dep artm en t heads “ m ay not em p lo y an atto rn e y o r co u n sel for the co n d u ct o f litigation in w hich the U nited States . . . is a party, o r is interested, o r fo r the secu rin g o f e vidence therefor, but shall refer the m atter to the D ep artm en t o f Justice.” W ithin the D e p artm e n t o f Ju stic e itself, statu to ry stru ctu re reflects c o n stitu tio n al design. A ll litigation m ust b e c o n d u cted by officers u n d e r th e control and supervision o f the A tto rn ey G eneral. See, e.g., 28 U .S.C . § 5 1 5 (b ) (“ E ach a ttorney sp ec ia lly retained un d er the authority o f the D epartm ent o f Justice shall be co m m issio n ed as a special a ssistan t to the A ttorney G eneral o r special attorney, an d shall take the oath re q u ire d by law .” ); 28 U .S .C . § 516 ( “ [T ]he conduct o f litig atio n in w hich the U nited States . . . is a party . . . is reserved to officers o f the D ep artm en t o f Justice, un d er the d irectio n o f the A ttorney G e n eral.” ); see also 28 U .S .C . §§ 519, 547. 101 in their respective districts.” 28 C.F.R. § 11.2 (1989). Under the regulations, these COTRs “will be responsible for assisting the contracting officer by supervising the work of the private counsel in their respective districts and providing necessary approvals with respect to the initiation or settlement of lawsuits or similar matters.” Id. In addition, the Department’s Request for Proposals (“RFP”), issued pursuant to the debt collection amendments, makes it clear that the COTR must review all major pleadings in debt collection actions before they are filed by the private attorney. The Department has indicated that it considers this kind of close supervision of private attorneys “necessary to meet constitutional .concerns and preserve the authority of the Attorney General over litigation.” Bums Letter at 3. Conclusion In sum, we reaffirm the longstanding position o f this Office and the De­ partment that litigation on behalf of the United States must be conducted or closely supervised by properly appointed officers of the United States, offic­ ers who are themselves under the supervision of the Attorney General and the President. In addition, any significant policymaking duties under federal law or discretionary acts which affect the rights of citizens cannot be under­ taken by private parties. On the other hand, advisory and information gathering functions, as well as purely ministerial and internal management matters, need not be performed by officers of the United States. We therefore con­ clude that the forty-eight program analyst and program monitor positions and the historical research support positions do not involve governmental author­ ity that can only be exercised by officers, but instead involve information gathering and reporting duties which may constitutionally be performed by private parties on a contract basis. WILLIAM P. BARR Assistant Attorney General Office o f Legal Counsel 102

Write a legal research memo on the following topic.

April 22, 1977 77-22 MEMORANDUM OPINION FOR THE ACTING ASSISTANT ATTORNEY GENERAL, TAX DIVISION Proposed Tax Assessment Against the United States Postal Service This is in response to your request for our opinion as to the available remedies to resolve a dispute between the Internal Revenue Service (IRS) and the Postal Service. In our opinion, the question for consider­ ation is the justiciability of a dispute between the IRS and another executive branch entity regarding Federal taxes to be paid by the latter. We conclude that there is no reasonable basis to believe that such a dispute over the allocation of funds between two executive agencies, a matter that does not concern any adverse private person as a “real party in interest,” is justiciable. If formally asked this question by the Postal Service and IRS, we would so respond. Having so concluded, we see no need for us to consider the question of what administrative steps must be taken to bring the matter into a litigating posture. The dispute involves the Airport and Airway Revenue Act of 1970, which imposes a 5 percent tax on the amount paid for the transporta­ tion of property by air. 26 U.S.C. §4271.1 The tax is imposed upon the person making the transportation payment subject to the tax. The legislative history of the statute clearly indicates that the Postal Service 1 T he provision reads in pertinent part as follows: § 4271. Imposition o f tax (a) In general.—T here is hereby imposed, upon the am ount paid w ithin o r w ithout the U nited States for the taxable transportation . . . of p roperty a tax equal to S percent o f the am ount so paid for such transportation. T h e tax imposed by this subsection shall apply only to am ounts paid to a person engaged in the business o f transporting property by air for hire. (b) By w hom paid.— (1) In general.—. . . the tax imposed by subsection (a) shall be paid by the person making the paym ent subject to tax. 79 is subject to the transportation tax,2 and, so far as we are aware, the Postal Service has not disputed this. The particular issue concerns the proper computation of the tax. The IRS in Revenue Ruling 74-512 required the Postal Service to pay the 5 percent tax not only on the line haul charge it pays to air carriers for transportation of mail, etc., but also on terminal handling charges, including receipt of mail, load­ ing, unloading, and transfer of mail between planes. The Postal Service disagrees with this interpretation o f § 4271 and has refused payment of the tax on the terminal handling charges, although it has apparently paid the line haul charges. Section 4291 of Title 26 provides, with certain exceptions, that per­ sons receiving payments for services or facilities subject to tax 3 shall collect the tax from the person making the payment; but an administra­ tive regulation, Treas. Reg. § 154.2-1(f)(1), provides that in the case of amounts subject to tax that are paid by the Postal Service, the tax shall be paid directly to the IR S by the Postal Service as if it were a collecting agent.4 We understand that the IRS is presently holding in abeyance a proposed tax assessment of some $10 million against the Postal Service. The IRS has raised the question whether it may follow its regular assessment procedure, under which the Postal Service would be re­ quired to pay the tax, claim a refund, and bring suit against the United States for the refund in order to contest the IRS’ interpretation of §4271. The leading case on the issue of justiciability in this context is United States v. I.C.C., 337 U.S. 426 (1949). The question there was whether the United States as a shipper was barred from challenging in the Federal courts an Interstate Commerce Commission order denying the Government a recovery in damages for the exaction of an allegedly unlawful railroad rate. Both the Commission and the United States were made defendants, the latter because of the statutory requirement that any action to set aside an order of the Commission had to be 2 T h e H ouse C om m ittee report states: T h e exem ptions for transportation furnished to State and local governm ents, the U nited States, and nonprofit educational organizations are term inated. R em oving the exem ption for transportation furnished to the U nited States subjects the Post Office to the 5 percent property tax o n am ounts it pays for the transportation o f mail by air. It did not seem appropriate t o continue special exem ptions for these governm ental and educational organizations since this tax is now generally view ed as a user charge. In this situation there would appear to be no reason w hy these governm ental and educational organizations should not pay for their share o f the use o f the airw ay facilities. H. Rep. No. 601, 91st Cong., 1st Sess., at 46 (1969). A ccord, S. Rep. No. 706, 91st C ong., 2d Sess., at 18 n. 5 (1970). 3 A cco rd in g to Rev. Rul. 74-512, in m ost cases the Postal Service pays an air c arrier to perform these services. 4 T h e IR S has inform ed us th a t although T reas. Reg. § 154.2—1(f)(1) arguably is con­ tra ry to §4291, in its view, if th e Postal S ervice paid the claimed tax pursuant to this regulation, the Postal Service w ould not be barred from bringing suit for a refund by the rule th at a m ere volunteer who p a y s a tax m ay not sue for a refund. T h e refund statutes and regulations d o not expressly c o v e r this situation. See 26 U.S.C. § 6415. 80 brought against the United States. A three-judge district court dis­ missed the case on the ground that the Government could not sue itself. The Supreme Court reversed in a unanimous opinion, holding that “courts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented,” at 430. It viewed the case as one involving controversies of a type that were traditionally justiciable, stating at 430-431: The basic question is whether railroads have illegally exacted sums of money from the United States. Unless barred by statute, the Government is not less entitled than any other shipper to invoke administrative and judicial protection. To collect the alleged illegal exactions from the railroads the United States instituted proceed­ ings before the Interstate Commerce Commission. In pursuit of the same objective the Government challenged the legality of the Commission’s action. This suit therefore is a step in proceedings to settle who is legally entitled to sums of money, the Government or the railroads. The order if valid would defeat the Government’s claim to that money. But the Government charged that the order was issued arbitrarily and without substantial evidence. . . . Con­ sequently, the established principle that a person cannot create a justiciable controversy against himself has no application here. In our opinion, the Court’s analysis does not support the position that the Postal Service and IRS are entitled to judicial resolution of their dispute. The only significant similarity is that the dispute involves large sums of money; otherwise, the situations are markedly dissimilar. In United States v. I.C.C., as the Court noted, “the basic question [was] whether railroads have illegally exacted sums of money from the United States”; here the basic question is which of two governmental entities is entitled to money appropriated by Congress. It is in essence an interagency dispute. The question of which agency should have the money is peculiarly inappropriate for judicial determination; we do not believe that a question of this kind is one that, in the words of the Court, “involves controversies of a type which are traditionally justicia­ ble.” 337 U.S. at 430. Subsequent judicial holdings confirm our view. The lower court decisions following United States v. I.C.C. have interpreted it as up­ holding Federal jurisdiction over a suit by the Government against itself only if one of the real parties in interest is a truly adverse private party. United States v. Easement and Right o f Way, 204 F. Supp. 837 (D. Tenn. 1962), was a condemnation suit brought by the Tennessee Valley Authority (TVA) in which it sought to join as a defendant the Farmers Home Administration (FHA), Department of Agriculture, which held a mortgage security interest in the land involved. The court held that this could not be done, stating that “there could not be any issue between the TV A and the FHA, both being the United States, which this Court could litigate or adjudicate. Any differences between 81 these agencies would at most be interagency disputes which are not subject to settlement by adjudication.” 204 F. Supp. at 839. A similar analysis was applied in Ishverlal M adanlal & Co. v. SS Vishva Mangal, 358 F. Supp. 386 (D. N.Y. 1973), a suit brought by the Indian Supply Mission on behalf of the Indian government against a vessel and its ow ner (a corporation formed by the merger of a private corporation and a second corporation wholly owned by the Indian government) for damage to the cargo. Although the plaintiff was the Supply Mission, the real party in interest was the cargo insurer. The court held that the suit .was justiciable. It interpreted United States v. I. C. C. as holding that the courts should “look to the real parties in interest and to the nature of the underlying controversy in order to ascertain whether or not there is a real controversy and jurisdiction exists.” 358 F. Supp. at 390. The court noted that in U.S. ex rel. Chapman v. F.P.C., 345 U.S. 153 (1953), a proceeding by the Secretary of the Interior for judicial review of an order by the Federal Power Commission, the real party in interest adverse to the Secretary was a private power company licensed by the Commission. In Chapman, the Supreme Court did not discuss the justiciability issue.5 The only Supreme Court opinion to address this question since United States v. I.C.C. is United States v. Nixon, 418 U.S. 683 (1974), which involved quite unusual facts. In Nixon, the Court upheld the jurisdiction of a Federal district court over the Special Prosecutor’s attempt to enforce a documentary subpoena directed to President Nixon, w ho claimed executive privilege. The President argued that there was no case or controversy because the dispute was solely an intrabranch dispute between members o f the executive branch. The Supreme Court rejected this argument, citing United States v. I.C.C., and other decisions of the Court.8 It noted that the material was sought for use in a Federal grand jury proceeding, and that the enforceability of a subpoena and the claim of a privilege were traditionally justiciable issues (at 696-697). Moreover, the concrete adverseness necessary to sharpen the issues was present. See, 418 U.S. at 697. Although the Special Prosecutor was an agent o f the executive branch, he had been delegated the authority by the Attorney General to challenge the Presi­ dent’s refusal to produce evidence. A lthough a number of the cases cited by the Court involved intra­ branch disputes, they provide little guidance, because the Court did not discuss the issue. See, United States v. Marine Bancorporation, 418 U.S. 5 T h e C o u rt observed that the S ecretary had standing, but it stated that the difference in view s betw een the members o f the C o u rt precluded a single opinion on this issue, and that setting out the divergent view s w ould “not further clarification o f this com plicated specialty o f federal jurisdiction, th e solution o f w hose problem s is in any event m ore o r less determ ined by the specific circum stances o f individual situations . . . 345 U.S. at 156. • T h e C o u rt stated (p. 693): “T h e m ere assertion o f a claim o f an ‘intra-branch dispute,’ w ith o u t m ore, has never operated to defeat federal jurisdiction; justiciability does not depend on such a surface inquiry." 82 602 (1974); United States v. Connecticut National Bank, 418 U.S. 656 (1974); Powell v. McCormack, 395 U.S. 486 (1969);7 Federal Marine Board v. Isbrandtsen, 356 U.S. 481, 483 n. 2 (1958); Secretary o f Agricul­ ture v. United States, 347 U.S. 645 (1954); United States ex rel. Chap­ man, supra; I.C.C. v. Jersey City 322 U.S. 503 (1944). Thus the few cases dealing explicitly with this problem require at a minimum that there be an issue of the kind traditionally viewed as justiciable, and also that there be sufficient adverseness to sharpen the issues. With regard to the adverseness of the parties, the Postal Service, like the Special Prosecutor in Nixon and the regulatory agencies in­ volved in United States v. I.C.C. and U.S. ex rel. Chapman v. F.P.C., has a degree of independence from the executive branch. It is an “ independent establishment of the executive branch of the Government of the United States.” 39 U.S.C. §201. [Emphasis added.] It was re­ moved from direct political control,8 and given considerable indepen­ dence in managing its finances.9 It has the authority to sue and be sued in its official name, 39 U.S.C. §401(1), and, with the prior consent of the Attorney General, it may employ its own attorneys to conduct its litigation. 39 U.S.C. § 409(d). But we do not believe that there is a nongovernmental “real party in interest” here. Congress intended to apply the tax in §4271 to the transportation of the mails and other transportation *'furnished to the United S t a t e s [Emphasis added.]10 We recognize that the individual users of the mails and of the airports and airways have an interest in the outcome of this dispute; the mail rates may increase if the Postal Service’s costs increase, and a decrease in revenues collected under §4271 might ultimately result in the imposition of a higher rate of tax on those who use the airports and airways. However, these broad interest groups are not identifiable individuals or entities like the rail­ roads and private power companies in United States v. I.C.C. and U.S. ex rel. Chapman, respectively, who were active parties in the agency 7 T he C ourt did reject the argum ent that the case was nonjusticiable because judicial review w ould im properly interfere w ith the functioning o f the coordinate legislative branch. 395 U.S. at 548-49. “ A Board o f G o vernors is appointed by the President for a fixed term . 39 U.S.C. § 202. These G overnors, not the President, “shall appoint and shall have the pow er to rem ove the Postm aster G eneral . . [and to fix his] pay and term o f service . . . 39 U.S.C. § 202(c). T he G o vernors and the Postm aster G eneral then appoint his D eputy and fix his term. 39 U.S.C. § 202(d). See H.R. Rep. No. 1104, 91st Cong., 2d Sess. at 11-13 (1970); H .R D oc. No. 313, 91st Cong., 2d Sess. at 52. • In enacting the Postal R eorganization A ct, C ongress’ purpose was to authorize the operation o f the Postal Service in “a business-like w ay.” H.R. Rep. No. 1104, 91st Cong., 2d Sess. 11 (1970). T he Postal Service Fund is available to the Service w ithout fiscal year limitation. 39 U.S.C. § 2003. It is required to submit a yearly budget, including a state­ ment o f the am ounts it requests to be appropriated, and the President is required to include these am ounts “w ith his recom m endations but w ithout revision, in the budget transm itted to C ongress.” 39 U.S.C. § 2009. It is authorized to “determ ine the character of, and necessity for, its expenses,” to "determ ine and keep its ow n system o f accounts,” to "settle and com prom ise claims by o r against it,” and “sue and be sued in its official nam e." 39 U.S.C. §401. 10 H.R. Rep. No. 601, supra, n. 2. 83 and judicial proceedings, vigorously defending their private interests. In contrast, nearly all citizens use the mails, and of course many individ­ uals and businesses use both the mails and the airports and airways. The interests represented by both the Postal Service and the IRS are facets of the public interest, not truly private interests adverse to those of the Federal Government as a whole. For the foregoing reasons, it is our opinion that the question here involved in not susceptible of resolution by the courts. L eon U lm an Deputy Assistant Attorney General Office o f Legal Counsel 84

Write a legal research memo on the following topic.

Applicability of the Antideficiency Act to a Violation of a Condition or Internal Cap Within an Appropriation Any expenditure of funds in violation of a condition or internal cap in an appropriations act would generally constitute a violation of the Antideficiency Act. January 19, 2001 MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION The Constitution provides that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. The Antideficiency Act, codified at 31 U.S.C. §§ 1341-1342, 1349-1351, 15111519 (1994) (“ADA”), is one of several means by which Congress has sought to enforce this fundamental principle. See J. Gregory Sidak, The President’s Power of the Purse, 1989 Duke L.J. 1162, 1234 (“The statutory mechanism by which Congress guards its appropriations power is the Anti-Deficiency Act.”). The Act’s central prohibition, set out at 31 U.S.C. § 1341(a)(1), provides in relevant part: An officer or employee of the United States Government or the District of Columbia government may not—(A) make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation; or (B) involve either government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law. A violation of this section requires “appropriate administrative discipline,” id. § 1349(a), including possible suspension without pay or removal from office, and, if the violation was knowing and willful, a fine of up to $5,000 and/or imprisonment of up to two years, id. § 1350. See Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 430 (1990) (citing sections 1341 and 1350 for the proposition that “[i]t is a federal crime, punishable by fine and imprisonment, for any Government officer or employee to knowingly spend money in excess of that appropriated by Congress”); see also Hercules, Inc. v. United States, 516 U.S. 417, 427 (1996) (“The Anti-Deficiency Act bars a federal employee or agency from entering into a contract for future payment of money in advance of, or in excess of, an existing appropriation.”). In addition, violations must be reported by the head of the agency concerned to the President and Congress. 31 U.S.C. § 1351. You have asked whether a violation of a “condition” or “internal cap” within an appropriations act would violate the Antideficiency Act. For purposes of this opinion, we assume that a “condition” on an appropriation would prohibit an agency from expending any of its funds for a particular purpose, and that an 33 227-329 VOL_25_PROOF.pdf 43 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 “internal cap” would prohibit an agency from expending any of its funds in excess of a designated amount for a particular purpose. Your question arises in the specific context of the following provision of the Department of Justice Appropriation Act, 2000, Pub. L. No. 106-113, div. B, app. A, 113 Stat. 1501A-3, 1501A-11 (1999): For salaries and expenses for the Border Patrol program, the detention and deportation program, the intelligence program, the investigations program, and the inspections program . . . $1,107,429,000 . . . . Provided further, That none of the funds available to the Immigration and Naturalization Service [“INS”] shall be available to pay any employee overtime pay in an amount in excess of $30,000 during the calendar year beginning January 1, 2000. We understand this provision to be an internal cap, and thus to have prohibited the Department of Justice from using any funds available to the INS under any appropriation to pay any individual employee more than $30,000 in overtime during calendar year 2000. There are, of course, a variety of other ways in which Congress sets limits in appropriations. For example, Congress often earmarks funds for specific purposes. See, e.g., Department of Transportation and Related Agencies Appropriations Act, 1997, Pub. L. No. 104-205, 110 Stat. 2951, 2951-52 (1996) (appropriating “for necessary expenses for conducting transportation planning, research, systems development, and development activities . . . $3,000,000”). Congress also imposes ceilings within particular appropriations acts. See id., 110 Stat. at 2952 (providing that “none of the funds in this Act shall be available for the implementation or execution of programs in excess of $25,900,000 for the Payments to Air Carriers program in fiscal year 1997”) (emphasis added). For purposes of this opinion, we employ a narrow definition of “conditions” and “internal caps,” which does not include these other types of limits, and do not address the applicability of the Antideficiency Act to these other types of limitations. 1 1 Our opinion, therefore, does not address situations where purpose restrictions apply to some—but not all—funds available to an agency, or where those restrictions are not found in appropriations acts. Nor does our opinion address whether the Department may use statutory “reprogramming” or transfer authority, see, e.g., Department of Justice Appropriation Act, 2000, §§ 605, 107, 113 Stat. at 1501A-52 to 1501A-53, 1501A-19, to avoid the limitations of a condition or internal cap, or to cure retroactively expenditures that would, in the absence of a reprogramming of funds, violate the Antideficiency Act. We also do not consider what the legal effect might be of after-the-fact delegations or ratifications (by authorized officials) to cure obligations or expenditures made by persons acting without requisite legal authority. Finally, this memorandum does not address the situation in which a condition or internal cap within an appropriations act implicates another branch’s discharge of its constitutionally assigned functions. Cf. Memorandum for the Attorney General from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Application of the Independent Counsel Provisions of the Ethics in Government Act to Alleged Violations of the Boland Amendment and the Antideficiency Act (Apr. 27, 34 227-329 VOL_25_PROOF.pdf 44 10/22/12 11:10 AM Applicability of ADA to Violation of Condition Within Appropriation By its terms, the Antideficiency Act prohibits any expenditure or obligation exceeding an amount “available in an appropriation or fund for the expenditure or obligation.” 31 U.S.C. § 1341(a)(1)(A) (emphases added). The question before us, therefore, is whether, when Congress has expressly prohibited the expenditure of any funds for a particular purpose, or of any funds in excess of a specific amount appropriated for that purpose, an agency’s expenditure of funds in violation of such a limit necessarily also “exceed[s] an amount available . . . for the expenditure,” even when there are sufficient unobligated funds otherwise available in an appropriation to cover the expenditure. The question whether violation of a “condition” or “internal cap” also violates the Antideficiency Act is a difficult issue of first impression for this Office. 2 Its importance is underscored by the availability of criminal felony sanctions against government officers and employees who knowingly and willfully authorize or make such expenditures. For the reasons set forth below, we conclude that a violation of a condition or internal cap within an appropriation would generally constitute a violation of the Antideficiency Act. 3 1984) (“Olson Memorandum”) (alleged violation of Boland Amendment, which implicated President’s foreign affairs powers, could not reasonably be construed as a federal crime under Antideficiency Act due to justiciability concerns based on political question doctrine, lack of specific manageable standards, and vagueness of the Amendment); Authority for the Continuance of Government Functions During a Temporary Lapse in Appropriations, 5 Op. O.L.C. 1, 5-7 (1981) (President’s obligational authority may be strengthened in connection with initiatives grounded in peculiar institutional powers and competency of the President; Antideficiency Act not necessarily dispositive in such circumstances); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 435 (1990) (White, J., concurring) (noting that Congress may not “impair the President’s pardon power by denying him appropriations for pen and paper”); see also J. Gregory Sidak, The Recommendation Clause, 77 Geo. L.J. 2079 (1989) (arguing that certain appropriations riders raise separation of powers concerns and conflict with the President’s constitutional duty to make recommendations to Congress); Kate Stith, Congress’ Power of the Purse, 97 Yale L.J. 1343, 1352 (1988) (noting that “Congress may not completely frustrate the exercise of the President’s constitutional duties”). 2 Cf. Olson Memorandum (assuming without discussion that alleged violation of Boland Amendment, which imposed a condition within an appropriation, would violate Antideficiency Act absent separation of powers concerns). 3 There may be circumstances in which determining the precise scope of a condition or internal cap raises difficult issues. Congress may, for example, enact a law in the middle of a fiscal year stating that previously available funds may no longer be used for a particular, previously authorized, purpose. After the effective date of such a law, previously available and unobligated funds could no longer be obligated for the proscribed purpose. However, a construction of such a law that would preclude, after the effective date, expenditure of funds that had been obligated prior to the effective date for services rendered prior to the effective date could cause the government to breach certain contracts or to violate federal personnel laws. These considerations, along with the general presumption that statutes should not be given retroactive effect, Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994), might reasonably justify the conclusion that such a law should be construed, if possible, not to prohibit the payment of such obligations. There may be other circumstances where determining the legal availability of funds under a condition or internal cap poses similarly difficult interpretive questions that we cannot, and therefore do not, address. 35 227-329 VOL_25_PROOF.pdf 45 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 I. Language and Structure of the Act As in all cases of statutory interpretation, we begin with the language of the Act itself. See United States v. Ron Pair Enterprises, 489 U.S. 235, 241 (1989); Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). Section 1341(a)(1) prohibits any “expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation.” 31 U.S.C. § 1341(a)(1)(A) (emphasis added). The scope of the Act’s coverage thus turns, to a significant degree, on the meaning of the term “available” in this context. Webster’s Third New International Dictionary defines “available” to mean “valid”; “such as may be availed of: capable of use for the accomplishment of a purpose: immediately utilizable”; or “that is accessible or may be obtained.” Webster’s Third New International Dictionary 150 (1993). Similarly, Black’s Law Dictionary defines the term “available” to mean either “[s]uitable; useable; accessible; obtainable; present or ready for immediate use,” or “[h]aving sufficient force or efficacy; effectual; valid.” Black’s Law Dictionary 135 (6th ed. 1990). These definitions reflect two distinct concepts. To the extent the word “available” means “present or ready for immediate use,” it appears to require only that funds be accessible or obtainable in a practical sense—i.e., unobligated. So understood, the Act would generally prohibit only those expenditures that exceed the total amount of funds Congress has provided within a particular account—i.e., those expenditures that result in socalled “coercive deficiencies” because they effectively obligate Congress to appropriate additional funds. On the other hand, to the extent that “available” also incorporates the concept of “validity,” it suggests an additional requirement of legal permissibility. On this reading, if Congress provides that “no funds made available under this or any other appropriation shall be available to pay in excess of $30,000 for overtime,” only $30,000 is “available,” within the meaning of the Antideficiency Act, for that purpose. Any expenditure in excess of that sum on overtime, accordingly, is an “expenditure or obligation exceeding an amount available in an appropriation,” regardless of whether such an expenditure would cause an agency or office to exceed its overall appropriation. Although the statute is not entirely free from ambiguity on this point, we conclude that the second reading better comports with the Act’s language and structure. Various arguments may be mustered from the text and structure of the statute and related provisions to support the view that “available” in the context of section 1341(a)(1) simply means “unobligated.” For example, because subsection (a)(1)(B) sets forth a clearly temporal limitation on contracting or otherwise obligating federal funds—i.e., no spending “before an appropriation is made”—it might be argued that the parallel proscription of subsection (a)(1)(A) should likewise be understood as a temporal limitation—i.e., no spending “after funds are exhausted.” In other words, the Act reflects Congress’s concern with preventing spending that creates deficiencies, rather than with enforcing restrictions on 36 227-329 VOL_25_PROOF.pdf 46 10/22/12 11:10 AM Applicability of ADA to Violation of Condition Within Appropriation spending for particular purposes. This interpretation draws support from other provisions of the Act (codified at 31 U.S.C. §§ 1511-1519) that require federal agencies to apportion their funds throughout the fiscal year. Section 1512(a) provides generally that, except as otherwise provided, “an appropriation available for a definite period shall be apportioned to prevent obligation or expenditure at a rate that would indicate a necessity for a deficiency or supplemental appropriation for the period.” 4 The responsible agency official may make such apportionments by “(A) months, calendar quarters, operating seasons, or other time periods; (B) activities, functions, projects, or objects; or (C) a combination of the ways referred to in clauses (A) and (B),” as the official considers appropriate. 31 U.S.C. § 1512(b)(1). Section 1517(a) makes it unlawful for an officer or employee of a federal agency or the District of Columbia government to “make or authorize an expenditure or obligation exceeding . . . an apportionment.” The penalties for violating this prohibition are essentially identical to those mandated for violations of section 1341(a): reporting of violations to the President and Congress, see 31 U.S.C. § 1517(b), “appropriate administrative discipline, including, when circumstances warrant, suspension from duty without pay or removal from office,” 31 U.S.C. § 1518, and, in the case of “knowing[] and willful[]” violations, criminal sanctions that may include a fine of up to $5000, imprisonment for up to two years, or both, 31 U.S.C. § 1519. Cf. 31 U.S.C. §§ 1349(a), 1350, 1351. These provisions highlight the degree to which Congress sought in the Antideficiency Act to prevent government agencies from exceeding their appropriated funds in a given fiscal year. 5 Congress’s obvious concern with overall deficiencies caused by expenditures in excess of appropriated funds does not, however, exclude the possibility that it also intended through the Antideficiency Act to enforce its appropriations power by exercising control over the purposes for which agencies may use their appropriated funds. Indeed, there is considerable textual evidence to support a reading of the term “available” that incorporates a “legal permissibility” component as well as the basic requirement that sufficient funds be unexpended or “unobligated.” In section 1341(a)(1)(A) itself, the word “available” is modified by the phrase “for 4 Certain exceptions to this requirement are set out in 31 U.S.C. § 1515. This reading is also arguably supported by another provision in chapter 13 of title 31 (the chapter entitled “Appropriations,” which also includes section 1341(a)), in which Congress appears to have used the term “available” to mean simply unobligated. In section 1344(a)(1), Congress referred to “available” funds, then separately specified a limitation on the permissible use of such funds. See 31 U.S.C. § 1344(a)(1) (“Funds available to a Federal agency, by appropriation or otherwise, may be expended . . . for the maintenance, operation, or repair of any passenger carrier only to the extent that such carrier is used to provide transportation for official purposes.”). Cf. Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (relying on slight differences in language in “nearby sections of Title 28” to construe the term “jurisdiction”). But see infra pp. 38-39 (discussing other uses of term “available” in title 31). 5 37 227-329 VOL_25_PROOF.pdf 47 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 the expenditure or obligation,” which suggests a more restrictive intent. 6 If Congress had intended to address solely the problem of overall deficiency spending, this phrase would appear somewhat superfluous. Congress could have simply prohibited any expenditure or obligation “exceeding an amount available in an appropriation.” The fact that Congress did not simply prohibit expenditures in excess of total appropriations suggests that the term “available” should be construed more broadly to encompass the concept of legal permissibility. Nor does the temporal focus of subsection (a)(1)(B) compel the conclusion that subsection (a)(1)(A) has a similarly limited focus. It is just as logical to conclude that these separate prohibitions were aimed at separate problems, only one of which had a purely temporal dimension. As noted above, Congress often uses the term “available” in its appropriations acts in a manner that clearly connotes legal permissibility. See, e.g., Pub. L. No. 101-516, 104 Stat. 2155, 2157 (1990) (“none of the funds in this or any other Act shall be available for the implementation or execution of programs in excess of $26,600 for the Payments to Air Carriers program”) (emphasis added). Similarly, Congress has used “available” in this sense in numerous other provisions of chapters 13 and 15 of title 31. Section 1343(d), for example, provides that an appropriation “is available to buy, maintain, or operate an aircraft only if the appropriation specifically authorizes the purchase, maintenance, or operation.” 31 U.S.C. § 1343(d). Section 1346 provides that “public money and appropriations are not available to pay” certain expenses related to commissions, councils, boards, and similar groups, but that the “[a]ppropriations of an executive agency are available for the expenses of an interagency group conducting activities of interest common to executive agencies when the group includes a representative of the agency.” Id. § 1346(a), (b). Section 1348 provides that “[e]xcept as provided in this section, appropriations are not available to install telephones in private residences or for tolls or other charges for telephone service from private residences,” but that the “[a]ppropriations of an agency are available to pay charges for a long-distance call if required for official business,” provided “the head of the agency . . . certifies that the call is necessary in the interest of the Government.” Id. § 1348(a)(1), (b). In each of these statutes, Congress used the term “available” in a manner that is not dependent on whether funds are actually “unobligated,” and that instead limits the permissible purposes for which funds may be spent. See also 31 U.S.C. § 1502(a) (“The balance of an appropriation or fund limited for obligation to a definite period is available only for payment of expenses properly incurred during the period of availability or to complete contracts properly made within that period of availability and obligated consistent with section 1501 of this title.”) 6 See infra pp. 39-40 (discussing changes in text made by 1982 recodification of title 31, which Congress did not intend to have substantive effect). 38 227-329 VOL_25_PROOF.pdf 48 10/22/12 11:10 AM Applicability of ADA to Violation of Condition Within Appropriation An argument can be made, however, that the current language of section 1341(a)(1) should be read more narrowly in view of the fact that it was enacted as part of the 1982 general recodification of title 31, which was not intended to make any substantive change in the law. See H.R. Rep. No. 97-651, at 1-3 (1982), reprinted in 1982 U.S.C.C.A.N. 1895, 1896 (describing purpose of bill “to revise, codify, and enact without substantive change certain general and permanent laws related to money and finance as title 31, United States Code, ‘Money and Finance,’” and to simplify language); see also Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 318 (1985) (when enacted without substantive comment, change during codification of legislation is generally held not to have been intended to alter statute’s scope); cf. Interpretation of the Grandfather Clause in 18 U.S.C. § 709—Use of Word “Federal” in Name of Insurance Company, 1 Op. O.L.C. 60, 61 (1977) (“the relevant law is not strictly” criminal statute as revised in 1948, but rather its predecessor). The previous version of the Antideficiency Act, as enacted in 1950 (the last occasion on which Congress made substantive changes to this section), provided: No officer or employee of the United States shall make or authorize an expenditure from or create or authorize an obligation under any appropriation or fund in excess of the amount available therein; nor shall any such officer or employee involve the Government in any contract or other obligation, for the payment of money for any purpose, in advance of appropriations made for such purpose, unless such contract or obligation is authorized by law. 31 U.S.C. § 655(a) (1976). Notably, in the first clause of the pre-1982 statute, the word “available” is not modified by the phrase “for the expenditure or obligation,” but rather by the term “therein.” Indeed, only the second clause, which concerns obligations in advance of appropriations, contains express purpose-restrictive language. Arguably, therefore, the 1950 statute did not use the term “available” to capture the concept of “legal permissibility,” and the language added by the 1982 recodification should not be read to incorporate that concept either, because the legislative history of the recodification indicates only an intent to standardize and simplify statutory language within the title. Ultimately, however, we do not find this argument persuasive. Congress’s statement that the recodification worked no substantive change in the law is perfectly consistent with the conclusion that the language added in 1982 did nothing more than confirm that the word “available” in the Act had always incorporated the concept of legal permissibility. The express prohibition in the 1950 law on obligations incurred in advance of appropriations “made for such purpose” supports this view. It seems highly unlikely that Congress would have intended to adopt a legal-availability approach to the second clause of the 1950 39 227-329 VOL_25_PROOF.pdf 49 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 law, but not to the first clause. Indeed, as we explain below, this understanding of the 1950 version is consistent with the fact that, when Congress amended the law that year, it deleted the phrases “in any one fiscal year” and “for that fiscal year” from the statute, thereby broadening the statutory focus beyond an apparent concern with overall deficiencies. 7 We have also considered whether the “Purpose Statute,” 31 U.S.C. § 1301(a), provides any basis for a narrowing construction of the Antideficiency Act. The Purpose Statute, which predates the Antideficiency Act and carries no criminal penalties, provides that “[a]ppropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.” Id. Although, as the Supreme Court has observed, “it is hardly a novel proposition that [two statutes] ‘prohibit some of the same conduct,’” Herman & MacLean v. Huddleston, 459 U.S. 375, 383 (1983) (quoting United States v. Naftalin, 441 U.S. 768, 778 (1979), and referring to overlap of 1933 and 1934 securities laws), a construction of one statute that renders another wholly superfluous should generally be avoided. See Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961) (“If there is a big hole in the fence for the big cat, need there be a small hole for the small one?”). If the Purpose Statute prohibits nothing more than expenditures and obligations that are illegal under the Antideficiency Act, then the civil prohibition of the Purpose Statute would have no independent function. This is not the case, however, because the Purpose Statute may be violated in circumstances where no violation of the Antideficiency Act occurs. For example, the Comptroller General has consistently found that “deliberately charging the wrong appropriation for purposes of expediency or administrative convenience, with the expectation of rectifying the situation by a subsequent transfer from the right appropriation, violates [the Purpose Statute].” 1 General Accounting Office, Principles of Federal Appropriations Law 4-4 (2d ed. 1991) (“Federal Appropriations Law”) (citing 36 Comp. Gen. 386 (1956); 26 Comp. Gen. 902, 906 (1947); 19 Comp. Gen. 395 (1939); 14 Comp. Gen. 103 (1934)). In such circumstances, funds are “available” under the broader construction of that term in the Antideficiency Act, because funds are both “on deposit” and may legally be obligated or expended for the purpose in question; thus, although the expenditure would not run afoul of the broader reading of the Antideficiency Act, it violates the Purpose Statute’s requirement that funds be “applied only to the objects for which the [charged] appropriation[] [was] made.” See 63 Comp. Gen. 422, 424 (1984) (“Even though an expenditure may have been charged to an improper source, the Antideficiency Act’s prohibition against incurring obligations in excess or in advance of available appropriations is not also violated unless no other funds were available for that expenditure.”). Although the legal interpretations of the Comptroller General are 7 As discussed below, this reading of the text is consistent with interpretations of the pre-1982 versions of the Act by the Supreme Court, the Comptroller General, and members of Congress. 40 227-329 VOL_25_PROOF.pdf 50 10/22/12 11:10 AM Applicability of ADA to Violation of Condition Within Appropriation not binding on the Executive Branch, see Bowsher v. Synar, 478 U.S. 714, 727-32 (1986), we find this interpretation of the Purpose Statute persuasive. 8 Accordingly, because we find that the Purpose Statute may apply in circumstances where, even under a broad reading, the Antideficiency Act would not, the existence of the Purpose Statute provides no basis for narrowly construing the language of the Antideficiency Act. Similarly, we do not believe that the “rule of lenity” justifies a construction of the Act that equates the terms “available” and “unobligated.” To be sure, the Supreme Court has “instructed that ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,’ . . . and that ‘when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.’” Jones v. United States, 529 U.S. 848, 858 (2000) (quoting Rewis v. United States, 401 U.S. 808, 812 (1971), and United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22 (1952), respectively). The degree of ambiguity in the Antideficiency Act, however, is insufficient to warrant invocation of this rule. As the Court has explained, “[l]enity applies only when the equipoise of competing reasons cannot otherwise be resolved.” Johnson v. United States, 120 S. Ct. 1795, 1807 n.13 (2000). Thus, the rule of lenity applies “‘only if, after seizing everything from which aid can be derived, . . . we can make no more than a guess as to what Congress intended,’” Holloway v. United States, 526 U.S. 1, 12 n.14 (1999) (quoting Muscarello v. United States, 524 U.S. 125, 138 (1999)) (additional quotations and citations omitted), or where “there is a ‘“‘grievous ambiguity or uncertainty’” in the statute,’” Muscarello, 524 U.S. at 139 (quoting Staples v. United States, 511 U.S. 600, 619 n.17 (1994) (quoting Chapman v. United States, 500 U.S. 453, 463 (1991))). See also 3 Norman J. Singer, Sutherland on Statutes and Statutory Construction § 59.03 (5th ed. 1992) (“In fact, it has been said that the rule of lenity is a tie breaker when there is an otherwise unresolved ambiguity.”). Although the language of the Antideficiency Act admits of some ambiguity, there is by no means a “grievous ambiguity or uncertainty in the statute,” nor complete equipoise between the competing interpretations we have identified. Rather, as we have explained, we believe that the text of section 1341(a)(1) is best read to apply to violations of conditions and internal caps within appropriations acts. Moreover, “everything from which aid can be derived,” Holloway v. United States, 526 U.S. at 12 n.14, serves to clarify and confirm this reading, rather than requiring us to “make no more than a guess as to what Congress intended.” Id. Thus, as we 8 For purposes of resolving the question before us, we need not consider any other interpretations of the Purpose Statute that the Comptroller General has rendered, and should not be understood generally to embrace the substantial body of opinions the Comptroller General has issued with respect to this statute. See generally 1 Federal Appropriations Law ch. 4. 41 227-329 VOL_25_PROOF.pdf 51 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 explain below, the Act’s legislative history, relevant court decisions, decisions of the Comptroller General, and scholarly commentary all support our conclusion that the Act applies to expenditures that violate conditions and internal caps within appropriations acts. II. History and Evolution of the Act Our examination of the historical record confirms our view that, except in those circumstances in which an internal cap or condition would prevent another branch from discharging its constitutionally assigned functions, see supra note 1, the text of the Antideficiency Act is best read to prohibit an expenditure in excess of such a condition or internal cap. See Crandon v. United States, 494 U.S. 152, 158 (1990) (“In determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy.”). What is now known as the Antideficiency Act arose during the nineteenth century from Congress’s increasing frustration with the failure of Executive Branch agencies to stay within the budgets Congress allocated to them. At least as early as 1809, members of Congress complained of budgetary abuses and misapplication of funds by the War and Navy departments, and in that year Congress passed legislation requiring that “the sums appropriated by law for each branch of expenditure in the several departments shall be solely applied to the objects for which they are respectively appropriated, and to no other.” Act of Mar. 3, 1809, ch. 28, § 1, 2 Stat. 535, 535; see also 19 Annals of Cong. 1551-55, 1560-61, 1575 (1809). 9 In 1820, Congress enacted additional legislation providing that, with certain exceptions for obtaining subsistence and clothing, “no contract shall hereafter be made by the Secretary of State, or of the Treasury, or of the Department of War, or of the Navy, except under a law authorizing the same, or under an appropriation adequate to its fulfilment.” Act of May 1, 1820, ch. 52, § 6, 3 Stat. 9 This precursor of the present-day “Purpose Statute” (31 U.S.C. § 1301(a) (1994)) permitted the President to authorize a transfer of funds from one “branch of expenditure” within a particular department to another “branch of expenditure” within the same department. See 2 Stat. at 235. Congress repealed that authority in 1868, amending the 1809 Act to provide that “all acts or parts of acts authorizing such transfers of appropriations be and the same are hereby repealed, and no money appropriated for one purpose shall hereafter be used for any other purpose than that for which it is appropriated.” Act of Feb. 12, 1868, ch. 8, § 2, 15 Stat. 35, 36. The Act was subsequently codified as section 3678 of the Revised Statutes, which provided: “All sums appropriated for the various branches of expenditure in the public service shall be applied solely to the objects for which they are respectively made, and for no others.” Rev. Stat. § 3678 (2d ed. 1878), 18 Stat. pt. 1, at 723 (repl. vol.). The current version of the Purpose Statute (as recodified in 1982) provides that “[a]ppropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.” 31 U.S.C. § 1301(a). 42 227-329 VOL_25_PROOF.pdf 52 10/22/12 11:10 AM Applicability of ADA to Violation of Condition Within Appropriation 567, 568.10 In 1868, Congress passed a statute providing that “no contract shall be entered into for the erection, repair, or furnishing of any public building, or for any public improvement . . . which shall bind the government to pay a larger sum of money than the amount in the treasury appropriated for the specific purpose.” Act of July 25, 1868, ch. 233, § 3, 15 Stat. 171, 177 (codified at Rev. Stat. § 3733 (2d ed. 1878), 18 Stat. pt. 1, at 736-37) (repl. vol.)) (emphasis added). The 1868 Act established criminal penalties of up to two years imprisonment and a $2000 fine for “knowing” violations. Id. (codified at Rev. Stat. § 5503 (2d ed. 1878), 18 Stat. pt 1, at 1066 (repl. vol.)).11 In 1870, Congress again expressed its frustration with Executive Branch overspending by enacting general legislation making it unlawful “for any department of the government to expend in any one fiscal year any sum in excess of appropriations made by Congress for that fiscal year, or to involve the government in any contract for the future payment of money in excess of such appropriations.” Act of July 12, 1870, ch. 251, § 7, 16 Stat. 230, 251 (codified at Rev. Stat. § 3679 (2d ed. 1878), 18 Stat. pt. 1, at 723 (repl. vol.)). This was the original version of the Antideficiency Act, which has since been amended on numerous occasions.12 When asked why such legislation was needed, given that its prohibition was already “the law of the land,” the amendment’s sponsor replied: “Well they do not adhere to it. I want to put it in here, so that it shall have force and effect on every appropriation.” Cong. Globe, 41st Cong., 2d Sess. 1553 (1870) (Remarks of Rep. Randall). Despite these legislative efforts to enforce its fiscal prerogatives, Congress continued to find itself faced with situations in which federal agencies exceeded their budgets and then presented Congress with deficiencies, which Congress felt obliged to pay. In 1905, Congress attempted to address this problem by amending 10 This provision was subsequently codified as section 3732 of the Revised Statutes (2d ed. 1878), 18 Stat. pt. 1, at 736 (repl. vol.), and exists in a somewhat different form today as 41 U.S.C. § 11 (1994). 11 This criminal offense is currently codified at 18 U.S.C. § 435 (1994) (“Whoever, being an officer or employee of the United States, knowingly contracts for the erection, repair, or furnishing of any public building, or for any public improvement, to pay a larger amount than the specific sum appropriated for such purpose, shall be fined under this title or imprisoned not more than one year, or both.”) (emphasis added); see also 41 U.S.C. § 12 (1994). The 1948 Reviser’s Note, 18 U.S.C. § 435, states that the applicable punishment was reduced because “[t]he offense described in this section involves no moral turpitude” and should not carry “the stigma of a felony.” We have been unable to find any discussion of the relationship between this statute and the Antideficiency Act, or any explanation of the discrepancy in their criminal sanctions. 12 Act of Mar. 3, 1905, ch. 1484, § 4, 33 Stat. 1257; Act of Feb. 27, 1906, ch. 510, § 3, 34 Stat. 27, 48; Act of Aug. 23, 1912, ch. 350, § 6, 37 Stat. 360, 414; Act of Sept. 6, 1950, ch. 896, § 1211, 64 Stat. 595, 765; Act of Aug. 1, 1956, ch. 814, § 3, 70 Stat. 782, 783; Pub. L. No. 85-170, § 1401, 71 Stat. 426, 440 (1957); Pub. L. No. 93-344, § 1002, 88 Stat. 297, 332 (1974); Pub. L. No. 93-618, § 175(a), 88 Stat. 1978, 2011 (1975); Pub. L. No. 101-508, § 13213(a), 104 Stat. 1388, 1388-621 (1990). 43 227-329 VOL_25_PROOF.pdf 53 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 Rev. Stat. § 3679 in several significant ways. See Act of Mar. 3, 1905, ch. 1484, § 4, 33 Stat. 1257. The amended Antideficiency Act provided: No Department of the Government shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract or obligation for the future payment of money in excess of such appropriations unless such contract or obligation is authorized by law. . . . Any person violating any provision of this section shall be summarily removed from office and may also be punished by a fine of not less than one hundred dollars or by imprisonment for not less than one month. 33 Stat. at 1257-58 (1905). The 1905 amendment also added restrictions on the acceptance of voluntary services and required that certain types of funds be apportioned over the course of the fiscal year, although it permitted heads of departments to waive or modify an apportionment in particular cases. Id. The purpose of the new apportionment requirement was “to prevent undue expenditures in one portion of the year that may require deficiency or additional appropriations to complete the service of the fiscal year.” Id. at 1258. In introducing the proposed amendment, Representative Hemenway (Chairman of the Appropriations Committee, which reported the bill) explained: I call attention to this particular limitation because we seek by it to prevent deficiencies in the future. . . . We give to Departments what we think is ample, but they come back with a deficiency. Under the law they can make these deficiencies, and Congress can refuse to allow them; but after they are made it is very hard to refuse to allow them. So we seek by this amendment to in some respect, at least, cure that abuse. 39 Cong. Rec. 3687 (1905); see also id. at 3689-92, 3780-82 (statements of other members of Appropriations Committee expressing frustration with deficiencies incurred by Executive Branch and then presented to Congress). Although much of the legislative debate focused on the problem of overall deficiencies, several Committee members and other representatives emphasized the need to prevent Executive Branch departments from taking funds authorized for one purpose and using them for another, noting that such abuses were a significant cause of deficiencies. See, e.g., 39 Cong. Rec. 3692 (statement of Rep. Livingston) (“some of the Departments of this Government have been absolutely taking lump sums appropriated for a particular purpose and promoting clerks and officers out of it”); id. at 3780 (statement of Rep. Underwood) (criticizing deficiencies “made by Department officers, who exceeded the law and used moneys appropriated for one purpose for a different purpose than Congress 44 227-329 VOL_25_PROOF.pdf 54 10/22/12 11:10 AM Applicability of ADA to Violation of Condition Within Appropriation intended”); id. at 3783 (statement of Rep. Underwood) (“if the officers of the Government had stayed within the law and only used their funds for the purpose they should have been used for the deficiency would not have occurred”). There was extensive discussion in the House of an incident in which a Navy official used funds appropriated for the maintenance of battleships in order to install two sights on guns for which only one sight had been authorized by Congress. See id. at 3781 (statement of Rep. Underwood) (“the money appropriated for the ordinary maintenance and care of the battle ships of the country has been used for other purposes; I will not say illegitimate purposes, but for purposes that the Navy Department should have come to Congress and asked the authority of the Naval Committee to do”). Another example concerned a State Department official’s “misapplication of the fund” appropriated for ordinary printing in order to print a book that Congress had not authorized. Id. at 3781 (“Mr. Littlefield. Will the amendment which the committee have proposed . . . reach a case like this? Mr. Underwood. It will.”). Representative Underwood, who was also a member of the committee that reported the bill, repeatedly asserted, without contradiction, that the proposed bill would “stop” such abuses and “prevent this thing being done in the future.” Id. at 3780, 3781; see also id. at 3691 (statement of Rep. Livingston) (“if you permit this clause to remain in this bill there will be no more expenditure of money without authority”).13 Indeed, Representative Underwood stated the goal of the antideficiency provision in broad constitutional terms: This is only one illustration. It shows how the money that we appropriate . . . is misapplied, and it demonstrates conclusively how necessary it is for Congress to pass some legislation such as we propose in this bill to check that evil and retain the power of appropriation in the hands of Congress. We are getting farther and farther away from it every day. The great power that was intended to be exercised by the legislative branch of the Government is being taken away from it by departmental officers creating deficiencies for purposes that are not authorized under the law. Id. at 3782. Within a year, Congress again sought to strengthen its control over appropriations by amending the Act to prohibit department heads from modifying apportionments except in “extraordinary emergenc[ies] or unusual circumstance[s]” that could not have been anticipated when the appropriated funds were apportioned. See 34 Stat. 27, 48-49 (1906). Representative Littauer, the sponsor of the amendment, reiterated the need for the House to “regain its control over appropria- 13 The primary reason identified for lack of compliance with existing law was the lack of any penalty for violation of the statute. See 39 Cong. Rec. at 3690, 3780, 3781. 45 227-329 VOL_25_PROOF.pdf 55 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 tions . . . in order that the Departments may understand that such moneys, and such moneys alone as we appropriate, will be at their service to carry on the work of the Government.” 40 Cong. Rec. 1275 (1906). Again, various members of the House indicated their understanding that the Act applied not just to expenditures in excess of total appropriations, but rather also to expenditures inconsistent with the express terms of the appropriations. Thus, Representative Fitzgerald identified one cause of deficiencies as “officials spending money in defiance of the action of Congress in refusing to appropriate money for the purpose for which they estimated,” and stated that “[i]t is necessary for Congress to impress upon the men in the administrative offices of the Government that Congress means just what it says in the law, and that if these men do not comply with it they will not only be dismissed from the public service, but they shall be punished as this law provides.” Id. at 1289-90. Similarly, Representative Burton emphasized the duty of the people’s representatives “to determine for what objects expenditures shall be made and how much shall be expended,” and asserted that members of Congress must “scrutinize the public expenditures and make sure that they are applied to purposes which approve themselves to our judgment and to the judgment of the people.” Id. at 1298 (emphasis added).14 A particular example of conduct the 1906 amendment sought to prevent was the Attorney General’s use of the Justice Department’s miscellaneous expenditures account to commission a portrait. See id. at 1274-75; see also id. at 1275 (Rep. Gaines) (“[T]he law should not have been evaded . . . by taking public funds that were not appropriated to do this particular thing.”). In response to a question as to whether “Congress should deprive the heads of these Departments of all discretion . . . and allow them to expend no money for any purpose except that specifically appropriated for that particular purpose,” Representative Brundidge responded: “that is practically the law now.” Id. at 1276 (noting the exception for emergencies). As the foregoing history reveals, although the language of the statute at that time—which merely prohibited expenditures “in any one fiscal year” in an amount “in excess of appropriations made by Congress for that fiscal year”—appeared designed primarily to prevent overall deficiencies, a number of members of Congress asserted (without opposition) that the 1905 and 1906 amendments would also enforce Congress’s constitutional authority to control the objects on which funds were to be spent. Indeed, the remarks cited above indicate that proponents of the legislation believed that unauthorized spending—that is, spending on projects that Congress had failed to authorize, or spending more money on projects than Congress had authorized—was a primary cause of overall deficiencies. These 14 Representative Burton also stated with respect to the Act’s penalty provisions that, “unless the law is very severe,” executive officers would spend funds on particular items they had recommended that were rejected by Congress. “It is fit and proper that by the severest penalties we should provide against that possibility.” Id. at 1298. 46 227-329 VOL_25_PROOF.pdf 56 10/22/12 11:10 AM Applicability of ADA to Violation of Condition Within Appropriation proponents, therefore, presumably would not have perceived any inherent tension between the goal of barring coercive deficiencies and the goal of barring spending in excess of conditions or internal caps; any statutory focus on the former goal, therefore, does not necessarily demonstrate that Congress did not intend to achieve the latter as well. In subsequent years, Congress continued to modify the Act in an attempt to rein in overspending by the Executive Branch and retain control of the federal fisc in the hands of Congress. In 1950, Congress amended the first portion of the statute to read: Sec. 3679. (a) No officer or employee of the United States shall make or authorize an expenditure from or create or authorize an obligation under any appropriation or fund in excess of the amount available therein; nor shall any such officer or employee involve the Government in any contract or other obligation, for the payment of money for any purpose, in advance of appropriations made for such purpose, unless such contract or obligation is authorized by law. Pub. L. No. 81-759, 64 Stat. 595, 765.15 Notably, the 1950 amendment eliminated the phrases “in any one fiscal year” and “for that fiscal year,” thereby changing the focus of the Act’s language from overall spending to spending out of particular appropriations, and also introduced the term “available” for the first time in the Act’s history. See 96 Cong. Rec. at 6835 (“subsection (a) would prohibit the making or authorizing of expenditures in excess of the amount available in any appropriation or fund”) (emphasis added). The legislative history provides little explanation for these changes. The House Report merely noted that the existing statute was “antiquated” and needed redrafting in light of the increasing complexity of the government, see H.R. Rep. No. 81-1797, at 9 (1950), while the legislative debates once again focused on the problem of deficiencies. Representative Norrell, a committee member and sponsor of the amendment, stated: “The entire effort is to try to discourage, if not entirely eliminate, supplementals and deficiencies.” 96 Cong. Rec. at 6726; see also id. at 6729 (purpose of amendment is to restore “proper control over appropriations” to Congress) (remarks of Rep. Taber and Rep. Wigglesworth). Yet Congress also seems to have been concerned with fiscal 15 Congress also increased the maximum penalty for “knowing[] and willful[]” violations of this provision of the Act to a $5000 fine and two years imprisonment, and for all other violations required “appropriate administrative discipline, including, when circumstances warrant, suspension from duty without pay or removal from office.” § 3679(i), 64 Stat. at 768; see also 96 Cong. Rec. 6835, 6837 (1950) (section-by-section analysis) (amendment designed to supply “more practicable penalties, which can be gaged with reference to the seriousness of the offense”). Finally, the amended Act required agencies to report certain violations of the statute, and the actions taken, to the President and Congress. § 3679(i), 64 Stat. 768. 47 227-329 VOL_25_PROOF.pdf 57 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 control in a broader sense. The House Report admonished the Executive Branch that “[a]ppropriation of a given amount for a particular activity constitutes only a ceiling upon the amount which should be expended for that activity.” H.R. Rep. No. 81-1797, at 9 (emphasis added). Moreover, as noted above, Congress added specific language to the second clause of the section, dealing with obligations in advance of appropriations, which appears to presuppose that obligations are limited to the particular purposes Congress has authorized. Between 1950 and 1982, Congress made only a few minor and technical amendments (not relevant here) to the Antideficiency Act. The Act achieved essentially its current form in 1982, as part of the general recodification of title 31 of the United States Code.16 See H.R. Rep. No. 97-651, at 1 (1982), reprinted in 1982 U.S.C.C.A.N. 1895 (describing purpose of bill “to revise, codify, and enact without substantive change certain general and permanent laws related to money and finance as title 31, United States Code, ‘Money and Finance’”). The new section 1341(a) differed in several ways from its predecessor. In describing unlawful expenditures and obligations, for example, the revisers changed the phrase “under any appropriation or fund in excess of the amount available therein” to “exceeding an amount available in an appropriation or fund for the expenditure or obligation.” 31 U.S.C. § 1341(a) (emphasis added). In the second clause, the phrase “for the payment of money for any purpose, in advance of appropriations made for such purpose” became “for the payment of money before an appropriation is made.” The House Report specified, however, that the bill made no substantive change in the law. See H.R. Rep. No. 97-651, at 1-3; 1982 U.S.C.C.A.N. at 1896. Accordingly, we understand these changes simply to have clarified the longstanding meaning of the Act. See H.R. Rep. No. 97-651, at 1 (“simple language has been substituted for awkward and obsolete terms”). Although the legislative history of the Antideficiency Act manifests particular congressional concern with the problem of overall deficiencies, we believe that history indicates that the Act’s proponents sought not only to prohibit government agencies from spending funds in excess of their total annual appropriations (i.e., creating a deficiency), but also to enforce Congress’s control over the uses to which public funds are put. This broader view of the Act’s goals was expressed when the Act took its modern form in 1905 and 1906, and was reinforced when the 1950 amendments to the statutory language focused the Act’s prohibition on expenditures in excess of any single appropriation or fund instead of expenditures within a fiscal year. Indeed, the legislative history from 1905 on indicates a 16 In 1990, Congress added sections 1341(a)(1)(C) and (D) in conformity with the Balanced Budget and Emergency Deficit Control Act of 1985. Congress also clarified that the exception allowing the acceptance of voluntary or personal services in time of emergencies (see 31 U.S.C. § 1342 (1994)) may be applied only in the face of an imminent threat to life or property. See H.R. Rep. No. 101-964, at 1170 (1990) (Conf. Rep.), reprinted in 1990 U.S.C.C.A.N. 2374, 2875. 48 227-329 VOL_25_PROOF.pdf 58 10/22/12 11:10 AM Applicability of ADA to Violation of Condition Within Appropriation congressional intent to enforce the full extent of Congress’s constitutionally mandated control over public spending. To be sure, in denouncing unauthorized spending, members typically focused only on examples that resulted in overall deficiencies, such as the excess spending on naval gun sights that depleted funds available for ship maintenance. But the comments of Representatives in 1905 and 1906 and the 1950 House Report are not so limited, and reflect a desire to prohibit all expenditures on particular projects in excess of authorized levels. See, e.g., 39 Cong. Rec. at 3780 (Rep. Underwood criticizing use of “moneys appropriated for one purpose for a different purpose than Congress intended”); 40 Cong. Rec. at 1298 (Rep. Burton emphasizing Congress’s right “to determine for what objects expenditures shall be made and how much shall be expended,” and asserting that Congress must ensure that public funds “are applied to purposes which approve themselves to our judgment and to the judgment of the people”); H.R. Rep. No. 81-1797, at 9 (“Appropriation of a given amount for a particular activity constitutes . . . a ceiling upon the amount which should be expended for that activity.”) (emphasis added). The legislative history thus reinforces our conclusion that the Antideficiency Act prohibits not only expenditures or obligations in excess of overall appropriations, but also expenditures in excess of internal caps or conditions within particular appropriations acts. In our view, this reading of the Act better reflects its full history and evolution, and is more consistent with its purpose. As this Office has stated previously, “[t]he manifest purpose of the Antideficiency Act is to insure that Congress will determine for what purposes the government’s money is to be spent and how much for each purpose.” Applicability of the Antideficiency Act Upon a Lapse in an Agency’s Appropriation, 4A Op. O.L.C. 16, 19-20 (1980). See also Appropriation—Construction of New York Dry Dock, 28 Op. Att’y Gen. 466, 466 (1910) (Secretary of the Navy may not borrow funds “from appropriations not strictly applicable” to meet the payments on a contract for the erection of a dry dock where funds specifically appropriated for that purpose have been exhausted). III. Judicial, Administrative, and Scholarly Interpretations of the Act Our understanding of the Act’s prohibitions is further supported by the purposes of the Constitution’s Appropriations Clause, the decisions of the Supreme Court and the Comptroller General, and the views of scholars who have addressed the subject. The Antideficiency Act itself is unquestionably intended to enforce Congress’s authority under the Appropriations Clause. As the Supreme Court has explained, that Clause is intended “to assure that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good and not according to the individual favor of Government agents or the individual pleas of litigants.” Office of Pers. Mgmt. v. Richmond, 496 U.S. at 49 227-329 VOL_25_PROOF.pdf 59 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 428. The “letter of the difficult judgments reached by Congress as to the common good” is very often reflected in the conditions and internal caps included in appropriations laws. Accordingly, a construction of the Antideficiency Act that prohibits expenditures that do not necessarily result in overall deficiencies but that nevertheless frustrate difficult congressional judgments about the appropriate level of spending on a particular purpose ensures that Congress is able to exercise its full constitutional authority over public spending. The Supreme Court has applied these principles on the rare occasions it has had to interpret any of the various versions of the Antideficiency Act. In Hooe v. United States, 218 U.S. 322 (1910), the Court held that, under the 1870 version of the Act and other similar enactments, the Civil Service Commission was legally incapable of incurring an obligation to pay more rent for a building it occupied than Congress had specifically appropriated for that purpose, and that any implied contractual obligation to pay fair market rental value in excess of the appropriated amount was a nullity. The relevant appropriations acts expressly stated that the sum of $4000 would be “in full compensation” for each year’s use of the building. Id. at 332. The Court pointed out that “[i]t is for Congress, proceeding under the Constitution, to say what amount may be drawn from the Treasury in pursuance of an appropriation.” Id. at 333. The agency could not contract for rent in excess of that amount, “particularly where . . . Congress had taken care to say . . . that the appropriation shall be in full compensation for the specific purpose named in the appropriation act.” Id.; see also Sutton v. United States, 256 U.S. 575, 580-81 (1921) (under 1906 version of Act, Secretary of War could not obligate the government to pay more than the $23,000 appropriated for improving a channel); Bradley v. United States, 98 U.S. 104 (1878) (where Congress appropriated only $1800 for payment of third year’s rent under a contract for annual rent of $4200, lessor could not recover anything beyond that amount). Because none of these cases involved situations in which officers or agencies drew upon other appropriated funds and made expenditures in excess of the amount (or limits) Congress had specified for the purpose in question, the Court did not squarely address whether such expenditures violate the Act. In addition, the Court was applying versions of the Act that did not use the term “available.” Nevertheless, in each case the Court treated the limitation in the relevant appropriation as an internal cap, and cited the Act for the proposition that federal officials were legally incapable of obligating the government to exceed that cap. These holdings thus appear to support our conclusion that, when Congress uses an internal cap or condition to limit the amount of money that can be used for a particular purpose, only the amount of money specified in the cap or condition is “available,” within the meaning of the Antideficiency Act, for that purpose, and any expenditure in excess of that amount is an “expenditure or obligation exceeding an amount available in an appropriation.” 50 227-329 VOL_25_PROOF.pdf 60 10/22/12 11:10 AM Applicability of ADA to Violation of Condition Within Appropriation More recently, the Federal Circuit has held that “[s]ection 1341(a)(1)(A) makes it clear that an agency may not spend more money for a program than has been appropriated for that program.” Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States, 48 F.3d 1166, 1171 (Fed. Cir.) (emphasis added), cert. denied, 516 U.S. 820 (1995). On this basis, the court rejected the argument that, while Congress had failed to appropriate sufficient earmarked money to fund certain entitlements under the Impact Aid Act, Pub. L. No. 81-874, 64 Stat. 1100 (1950), the Department of Education should have redirected funds from other programs in order to cover the shortfall, and concluded that, if the Department had transferred money from other appropriations, “it would have been spending more money than Congress had appropriated for [those] entitlements, in violation of § 1341(a)(1)(A).” Id. Similarly, in Eastern Band of Cherokee Indians v. United States, 16 Cl. Ct. 75 (1988), the Court of Claims held that if Congress has not appropriated funds for a particular purpose, it would violate the Antideficiency Act for officials to expend other funds for that purpose. The court denied the claim of the Eastern Band of Cherokee Indians that the Department of the Interior should have given them increased funds for their school under a statutory provision that provides for equivalent funding for schools operated by the Bureau of Indian Affairs, as compared with public schools. Id. at 76. At the time of the tribe’s request, no appropriations had been made for the Set-Aside Fund from which the payments were required to be made by the Department’s implementing regulations. Id. Although the tribe argued that the Department could have made payments from other accounts, the court held that such an action would violate the Antideficiency Act. Id. at 79. These cases are consistent with this Office’s conclusion that “there is no presumption that Congress has made funds available for every authorized purpose in any given fiscal year.” Anti-Lobbying Restrictions Applicable to Community Services Administration Grantees, 5 Op. O.L.C. 180, 184 (1981).17 One district court, however, has found that the expenditure of funds in violation of a prohibition within an appropriation does not violate the Antideficiency Act. The case, Southern Packaging & Storage Co. v. United States, 588 F. Supp. 532 (D.S.C. 1984), involved a “buy American” restriction in the Department of Defense’s appropriations.18 The court held that, although the Department’s acquisition of food items produced in Canada from ingredients obtained from within the United States violated this restriction, it did not violate the 17 As noted above, we take no position on whether earmarks of the type involved in these cases operate as internal caps, or whether the Department’s transfer or reprogramming authority would, in some contexts, be available to permit spending in excess of an earmark. 18 The appropriation stated: “No part of any appropriation contained in this Act . . . shall be available for the procurement of any article of food . . . not grown, reprocessed, reused, or produced in the United States or its possessions . . . .” Pub. L. No. 97-114, § 723, 95 Stat. 1565, 1582 (1981) (emphasis added). It thus did not bar the use of any funds for that purpose. 51 227-329 VOL_25_PROOF.pdf 61 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 Antideficiency Act because there was “no evidence [that the Department] authorized expenditures beyond the amount appropriated by Congress for the procurement of” the ready-to-eat meals. Id. at 550. The court did not explain this holding or suggest that there was another appropriation from which the Department could obtain funding for the meals. We disagree with the court’s apparent conclusion that, even though the appropriation forbade the purchase of nonAmerican food items, there remained funds “available” in that appropriation for such purchases within the meaning of the Antideficiency Act. The district court’s unexplained decision is inconsistent with the Antideficiency Act’s legislative history and evolution and with the rest of the (limited) caselaw. 19 Our interpretation of the Act is also consistent with that of the Comptroller General, including Comptroller General decisions applying the pre-1982 version of the Act. See, e.g., 60 Comp. Gen. 440 (1981) (incurring an obligation to pay overtime to employees in excess of a ceiling in an agency’s appropriation violates the Antideficiency Act where no other funds are available for that purpose); 42 Comp. Gen. 272, 275 (1962) (Antideficiency Act reflects congressional intent to keep departments within limits and purposes of appropriations annually provided) (quoted with approval in Authority to Use Funds from Fiscal Year 1990 Appropriations to Cover Shortfall from Prior Year’s Pell Grant Program, 14 Op. O.L.C. 68, 77 (1990)); see generally 2 Federal Appropriations Law at 6-43 to 6-45 (2d ed. 1992).20 The Department of Defense has also adopted this interpretation of the Act. See Dep’t of Defense, Dir. 7200.1, Administrative Control of Appropriations (May 4, 1995) (Antideficiency Act violation occurs when disbursements are made that exceed statutory or regulatory limitations on amounts of an appropriation that may be used for a particular purpose); Dep’t of Defense, Accounting Manual, DoD 7220.9-M at 21-6 (Feb. 1988) (expenditure in excess of a statutory limitation 19 The General Accounting Office (“GAO”), moreover, has expressly criticized the Southern Packaging decision. See 2 Federal Appropriations Law at 6-45 to 6-46 (2d ed. 1992) (discussing the Southern Packaging decision and suggesting that, while not every unauthorized expenditure—e.g., an unauthorized long-distance telephone call—should be held to violate the Antideficiency Act, where Congress has expressly prohibited the use of appropriated funds for a particular expenditure, “it seems clear” that there are no funds “available” for that item). This Opinion does not address, or foreclose future consideration of, the possibility that the Act may incorporate a de minimis exception for inadvertent or negligible violations, such as that suggested by GAO in its discussion of the Southern Packaging decision, or recognized by the Comptroller General and this Office with respect to the Purpose Statute, 31 U.S.C. § 1301(a). Cf. 64 Comp. Gen. 370, 380-81 (1985) (permitting nonreimbursable interagency details that have a negligible impact on the loaning agency’s appropriations); Memorandum for Margaret C. Love, Associate Deputy Attorney General, from John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Deputation of Interior Department Inspector General Personnel (Apr. 11, 1990) (concluding that nonreimbursable detail involving 280 man-hours would satisfy de minimis exception to Purpose Statute). 20 As we explained above, the opinions and legal interpretation of the Comptroller General and the GAO are not binding upon departments, agencies, or officers of the Executive Branch. 52 227-329 VOL_25_PROOF.pdf 62 10/22/12 11:10 AM Applicability of ADA to Violation of Condition Within Appropriation that legally limits the availability of funds constitutes a violation of the Antideficiency Act). Finally, our conclusion that a violation of a condition or an internal cap in an appropriation violates the Antideficiency Act is supported by the views of a number of legal scholars. As one commentator has explained, “the plain terms of the Act broadly codify the [constitutional] Principle of Appropriations Control,” a principle “that is broader than the particular concern that led to its enactment.” See Kate Stith, Congress’ Power of the Purse, 97 Yale L.J. at 1374-75; id. at 1375 & n.157 (arguing that the Act permits the Executive to spend funds only for the objects authorized by Congress, and noting Comptroller General’s view that “the Anti-Deficiency Act prohibits expenditure in some cases where ‘coercive deficiencies’ are not threatened”); see also Ralph S. Abascal & John R. Kramer, Presidential Impoundment Part I: Historical Genesis and Constitutional Framework, 62 Geo. L.J. 1549, 1587 (1974) (“The House Appropriations Committee proposed [the Antideficiency Act] to end abuses that had continued for many years—the use of monies appropriated for one purpose for a different purpose and the use of coercive deficiencies to obtain mid-year increases in financing.”). J. Gregory Sidak, for example, has suggested that “[i]f Congress expressly prohibits the spending of any funds to examine a particular policy, then even the expenditure of a dollar by the President to recommend the prohibited policy to Congress would ‘exceed[] an amount available in an appropriation’ and thus violate the Antideficiency Act.” J. Gregory Sidak, The Recommendation Clause, 77 Geo. L.J. at 2101 (arguing, however, that application of the Act to appropriations riders of this type would violate the Recommendation Clause). William C. Banks and Peter Raven-Hansen have argued that violation of an appropriation rider such as the Boland Amendment, which prohibited the expenditure for certain purposes of any funds available to the Central Intelligence Agency and the Department of Defense, also violates the Antideficiency Act.21 National Security Law and the Power of the Purse 139 (1994); see also Kathryn R. Sommerkamp, Commanders’ Coins: Worth Their Weight in Gold?, Army Law. 6, 13 & n.70 (Nov. 1997) (exceeding a limitation in an appropriation violates the Antideficiency Act); Paul D. Hancq, Violations of the Antideficiency Act: Is the Army Too Quick to Find Them?, Army Law. 30, 34 (July 1995) (Antideficiency Act violated when an agency exceeds an “absolute ceiling” in an appropriation because there are no proper funds “available” for the excess). 21 See also S. Rep. No. 100-216, at 411-12 (1987) (Iran-Contra Investigation Report) (implying that use of private and foreign funds to circumvent Boland Amendment violated Antideficiency Act); Olson Memorandum. 53 227-329 VOL_25_PROOF.pdf 63 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 IV. Conclusion In sum, given the underlying purpose of the Antideficiency Act—control by Congress of both the amount and objects of Executive Branch spending—we conclude that when Congress has explicitly prohibited an agency’s use of any funds for a particular purpose by placing a condition in an appropriations act, no funds are legally “available” for that purpose within the meaning of the Act. Similarly, when Congress has expressly limited an agency’s use of any funds in excess of a particular amount for a certain purpose by means of an internal cap, there remain no legally “available” funds for that purpose once the statutory limit has been reached. Therefore, subject to the various reservations noted above, we conclude that any expenditure of funds in violation of a condition or internal cap in an appropriations act would violate the Antideficiency Act.22 RANDOLPH D. MOSS Assistant Attorney General Office of Legal Counsel 22 Although all violations of sections 1341(a) and 1342 of title 31 must be reported to Congress, see 31 U.S.C. § 1351 (1994), we offer no view as to the applicability of the criminal and civil penalties imposed by the Act. In contemplating the availability of any sanction, very difficult considerations, such as fair warning and desuetude, would have to be evaluated. See generally United States v. Lanier, 520 U.S. 259, 267 (1997) (in construing a criminal statute “the touchstone is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant’s conduct was criminal”). We note that, to our knowledge, no criminal or civil penalties have been sought under the Act in the almost 95 years that such penalties have been available. Indeed, one member of Congress stated in 1906 that there were “not likely to be any” prosecutions under the Act, suggesting that Congress should instead withhold deficiency appropriations where the Act had been violated. See 40 Cong. Rec. at 1276 (1906) (Rep. Brundidge). See also Applicability of the Antideficiency Act Upon a Lapse in an Agency’s Appropriation, 4A Op. O.L.C. at 20 (“This Department will not undertake investigations and prosecutions of officials who, in the past, may have kept their agencies open in advance of appropriations. Because of the uncertainty among budget and accounting officers as to the proper interpretation of the Act and Congress’s subsequent ratifications of past obligations incurred during periods of lapsed appropriations, criminal sanctions would be inappropriate for those actions.”) 54 227-329 VOL_25_PROOF.pdf 64 10/22/12 11:10 AM

Write a legal research memo on the following topic.

Constitutional Issues Raised by Inter-American Convention on International Commercial Arbitration P ro p o sed legislation g iv in g In te r-A m e ric a n C o m m ercial A rb itra tio n C om m ission ( IA C A C ) p o w e r to am en d rules w h ic h h a v e been en acted by C o n g ress w o u ld result in an im p ro p e r d eleg atio n o f legislative p o w e r to a p riv a te o rg an izatio n , and any am en d ed ru le co u ld not co n stitu tio n ally be ap p lied to ag re e m e n ts e n te re d in to a fter th e effe ctiv e d a te o f th e am en d m en ts. P ro v isio n in p ro p o sed legislation allo w in g o n e H ouse o f C o n g ress to d isa p p ro v e am e n d ­ m en ts to IA C A C rules, a lth o u g h n ot a v e to o f ex ecu tiv e actio n , n onetheless violates th e P resen tm en t C lauses. A n a lte rn a tiv e rev iew m ech anism w h e re b y th e S e c re ta ry o f S tate w o u ld be req u ire d to a p p ro v e o r d isa p p ro v e am en d m en ts to th e IA C A C rules w o u ld be c o n stitu tio n a lly accep tab le, since th e am en d m en ts w o u ld not be binding on the g o v e rn m e n t but m erely ad v iso ry. March 20, 1980 MEMORANDUM OPINION FOR TH E ASSISTANT LEG AL ADVISER FOR PRIV A TE IN TER N A TIO N A L LAW, D EPA R TM EN T O F STA TE This responds to your request for the views of the Justice Depart­ ment on the congressional review mechanism in the proposed imple­ menting legislation for the Inter-American Convention on International Commercial Arbitration. You ask whether the review mechanism con­ stitutes a “legislative veto.” Our analysis of the review mechanism in the proposed legislation raises an additional question whether Congress may delegate its legislative power to the Inter-American Commercial Arbitration Commission (IACAC), a private organization. While the law is not clear in this area, we conclude that the delegation made in the proposed legislation presents serious constitutional problems. We believe, however, that the constitutional problems could be ameliorated if IACAC’s amendments to its rules were applicable only to agreements entered into after the effective date of the amendments. The review mechanism in the proposed legislation, although not a veto of executive action, is a legislative veto and is, therefore, unconstitutional. At your request, we suggest an alternative review mechanism. 509 I. The Inter-American Convention on Internationa) Commercial Arbi­ tration provides that, when parties of signatory nations have agreed to submit to arbitration any dispute that may arise out of a commercial transaction, the arbitration shall be conducted in accordance with the rules of procedure of the IACAC unless the parties have expressly agreed otherwise. Articles 1 & 3. The proposed implementing legisla­ tion for the Convention defines the rules referred to in Article 3 of the Convention to be those rules as promulgated by the Commission on January 1, 1978. § 306(a). If the IACAC modifies or amends its rules, § 306(b) would require the Secretary of State to transmit to the House of Representatives and the Senate a document containing the rules as modified or amended together with a report setting forth the reasons for and the effect of such modifications or amendments. A majority of either the House or Senate may disapprove the rules as modified or amended within 90 days of the transmission. If the rules are not disap­ proved, the rules shall be published after 90 days have elapsed and shall become effective 120 days after publication. If the rules are disap­ proved, the Secretary is required to use his best efforts to reconvene the rulemaking body of IACAC to ensure that the rules applicable to the signatory parties to the Convention are uniform. II. The threshold question presented by the proposed implementing leg­ islation is whether it involves an unconstitutional delegation of legisla­ tive power to a private organization. The legislation would incorporate by reference and thereby enact the rules of procedure of the IACAC in effect as of January 1, 1978. Since it is assumed that Congress would review and approve the rules in enacting the legislation, the incorpora­ tion of those rules by reference does not involve a delegation of legislative power to a private organization. C f United States v. Sharpnack, 355 U.S. 286, 293 (1958). See also Liebmann, G.W., Delega­ tion to Private Parties in American Constitutional Law, 50 Ind. L.J. 650, 680 (1975). However, the proposed legislation implicitly gives the IACAC the power to amend those rules subject to one House’s disap­ proval of such amendments. In effect, the legislature would delegate to a private organization the power to amend congressional legislation. We believe that such a delegation raises serious constitutional problems. In analyzing the delegation question, we are hampered by the fact that “ [t]he case law has not crystallized any consistent principles, either in the federal courts or in the state courts.” Davis, Administrative Law Treatise §2.14 at 138 (1958). Nevertheless, a survey of the relevant Supreme Court cases provides some guidance. In 1908, the Supreme Court rejected a claim that a statute permitting the American Railway 510 Association to set the uniform height for drawbars on freight cars constituted an invalid delegation, St. Louis, Iron Mountain & Southern Railway Co. v. Taylor, 210 U.S. 281 (1908). Three years earlier, it had upheld a delegation to miners to make regulations governing the re­ cording of mining claims and the amount of work necessary to establish possession of a mining claim. Butte City Water Co. v. Baker, 196 U.S. 119 (1905). However, more recently the Court found invalid a delegation to producers of two-thirds of coal to fix for producers selling coal to government contractors the minimum wages and maximum hours of their workers. Carter v. Carter Coal Co., 298 U.S. 238, 310 (1936). Holding that the delegation violated the Due Process Clause of the Fifth Amendment, the Court stated: The power conferred upon the majority is, in effect, the power to regulate the affairs of an unwilling minority. This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business. Id. at 311. In A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), the Court, addressing the argument that a delegation to the President to approve codes of fair competition proposed by trade asso­ ciations was proper because a delegation to the trade associations alone would be constitutional, stated: But would it be seriously contended that Congress could delegate its legislative authority to trade or industrial associations or groups so as to empower them to enact the laws they deem to be wise and beneficent for the rehabili­ tation and expansion of their trade or industries? Could trade or industrial associations or groups be constituted legislative bodies for that purpose because such associa­ tions or groups are familiar with the problems of their enterprises? . . . Such a delegation of legislative power is unknown to our law and is utterly inconsistent with the constitutional prerogatives and duties of Congress. Id. at 537. The Court in Schechter distinguished St. Louis, Iron Mountain & Southern Railway Co., as involving a matter of a technical nature and Butte City Water Co. as a recognition of local customs and of the rules of miners concerning mining claims. 295 U.S. at 537. Adopting this distinction, it could be argued that the IACAC rules are not substantive regulations capable of imposing anti-competitive or unfair restrictions but are merely “technical” rules promulgated by a 511 presumably disinterested body with a recognized expertise in arbitration procedure. Cf. Liebmann, supra at 680-719. However, because the rules may affect substantive rights,1 we are reluctant to conclude on the basis of this distinction that the delegation to the IACAC is clearly constitutional, especially in light of the scar­ city and age of federal case law approving delegation to private bodies.2 Our concern about the effect such amendments might have on sub­ stantive rights would be significantly reduced if the amendments would apply only to agreements entered into after the effective date of the amendments. This approach would eliminate any potential for unfair­ ness because a party entering an arbitration agreement would have the opportunity to examine the amendments to the IACAC rules and, if he regarded the amendments as unfair, could either decline to agree to arbitration or negotiate with the other party to the agreement the application of other rules or modifications to the amendments.3 Whether you decide to apply the amended rules to all agreements in the interest of uniformity or only to agreements entered into after the effective -date of amendments will determine whether governmental review is required. If the former approach is adopted, we believe that, in order to minimize the possibility of a challenge to amended IACAC rules, the rules should be subject to governmental review and adoption by legislation. III. The proposed legislative veto mechanism, although it does provide some governmental review of IACAC amendments, presents other con­ stitutional problems. As you point out in your memorandum, this review mechanism is unlike the classic “legislative veto” provision 1 For instance, the rules govern the place of arbitration, the choice o f law, the appointment of arbitrators, and the right to an oral hearing. It is conceivable that the rules could be amended in such a manner that American citizens could be disadvantaged in arbitration proceedings, e.g., a country distant from the United States could be designated as the place of arbitration. 2 Other problems could also be present here. First, a problem could arise out of the concept that, in a representative government, governmental powers should be vested in elected or disinterested public officials. In this manner, governmental decisions ‘and processes are subject to the checks of a variety of legal controls such as the oath of office, the conflict of interest laws, the control over appropriations, the powers of appointment, confirmation, or removal, and ultimately the electoral process. Another problem arises from the nature of the power vested in the private body. It could be argued that rule­ making power may be constitutionally vested only in “Officers of the United States” appointed pursuant to the Appointments Clause, Article II, § 2, clause 2. See Buckley v. Valeo. 424 U.S. 1, 113-41 (1976). Finally, if it is constitutional to delegate legislative power to private organizations, such a delegation should be subject to standards restricting the exercise of that power. C f A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). Although the courts’ attitude toward delegation of legislative power to executive agencies without specific standards has relaxed considerably, see gener­ ally K.C. Davis, Administrative Law Treatise, §§2.05, 2.06 and 2.15 (1958), the lack of the checks mentioned above on a private organization’s exercise of that power would suggest that standards imposed upon the exercise of legislative power by private organizations should be more stringent than the standards imposed on public bodies. 3 Article 3 of the Inter-American Convention on International Commercial Arbitration applies the IACAC rules only when parties to an arbitration agreement have not expressly agreed otherwise. 512 which purports to vest one House of Congress with the power to veto Executive action. Instead, the provision would allow one House of Congress to veto “private” action. Assuming, arguendo, that Congress could delegate to the IACAC the power to amend rules that had been enacted by Congress, the question is whether the Constitution author­ izes a procedure whereby one House may control the exercise of discretion vested in the IACAC. Article I, § 1 of the Constitution vests all legislative powers in a Congress, consisting of a Senate and House of Representatives. Further­ more, those powers cannot be exercised absent participation by the President. Article I, § 7, clause 2 requires “[e]very Bill . . . be pre­ sented to the President of the United States” for his approval or disapproval before it can become a law. Article I, § 7, clause 3 provides that “[e]very Order, Resolution, or Vote” to which concurrence of both Houses is necessary shall be presented to the President for his approval or veto.4 The Presentment Clauses thus provide two primary checks on the exercise of legislative power—the principle of bicameralism and the Executive veto. The veto provision in the proposed implementing legis­ lation would not respect these constitutional checks. The proposed legislation would allow one House of Congress to disapprove amend­ ments to the IACAC rules, but that legislative decision would not be presented to the President for his approval or veto. Nor would the President be given the opportunity to veto any “approval” of the amendments because the approval would be expressed by congressional inaction. Further, exercise by one House of the veto power would purport to place on the Secretary of State a legal duty to take steps to reconvene the rulemaking body of the IACAC. In our view, legal duties may not be imposed on the Executive by the exercise of some­ thing less than the full legislative process. Finally, if Congress could constitutionally delegate to the IACAC its legislative power to amend the rules, that power may be revoked only by affirmative legislative action by both Houses of Congress and the President, not by one House of Congress disapproving the exercise of that power. IV. If you decide that the IACAC rules amended should, as a matter of policy, apply to all arbitration agreements, you may wish to consider an 4 Giving the President this integral role in the legislative process was believed necessary by the Framers in order to limit congressional power. As James Madison put it: “(I]t is against the enterpris­ ing ambition of this [legislative] department that the people ought to indulge all their jealousy and exhaust all their precautions." The Federalist No. 48, at 309 (New American Library Ed. 1961). Alexander Hamilton viewed the veto power of the President as necessary to prevent legislative and Executive powers from becoming blended in the same hands. Id., No. 73, at 442. For more extensive discussion of the constitutionality of legislative vetoes, see 37 Op. A tt’y Gen. 56 (1933); 41 Op. A tt’y Gen! 230 (1955); 41 Op. A tt'y Gen. 300 (1957). 513 alternative governmental review mechanism which would vest the Sec­ retary of State with the power and duty to approve or disapprove amendments to the IACAC rules. This approach would cure the pro­ posed legislation of both constitutional infirmities. IACAC’s action in amending the rules would not be an exercise of legislative power because the amendments would not be binding on the government but would be merely advisory. The courts have held similar schemes not to be an unconstitutional delegation of legislative power. Sun-Shine An­ thracite Coal Co. v. Atkins, 310 U.S. 381 (1940); Todd & Co., Inc. v. SEC, 557 F.2d 1008, 1012-13 (3d Cir. 1977); R.H. Johnson & Co. v. SEC, 198 F.2d 690, 695 (2d Cir. 1952). A model for this approach may be found in the Maloney Act, 15 U.S.C. § 78o-3, authorizing Securities and Exchange Commission (SEC) registration of approved associations of securities dealers. Both the Second and Third Circuits have upheld the Maloney Act against a challenge that it unconstitutionally delegates legislative power to pri­ vate parties. Todd & Co., Inc. v. SEC, 557 F.2d 1008, and R.H. Johnson & Co. v. SEC, 198 F.2d 690. Membership in a registered association, as a practical matter, is essential to doing business in over-the-counter securities.5 The Maloney Act authorizes these associations to adopt substantive as well as procedural rules, to conduct disciplinary proceed­ ings and to enforce sanctions, including expulsion. The associations are required to submit any changes in or additions to their rules to the SEC for review. 15 U.S.C. § 78o-3(j). The rules as amended become effec­ tive if within 20 days the SEC has not disapproved the amendments. The SEC is required to disapprove the amendments if they are not consistent with the Act. The Maloney Act resembles the proposed implementing legislation in that amendments to the rules become effective unless disapproved. A critical difference, however, is that the Act requires the SEC to disap­ prove amendments if they are inconsistent with the Act. The Act, therefore, places an affirmative obligation on the SEC to consider amendments, determine whether they are inconsistent with the Act and disapprove them if they are. The Secretary of State’s review of IACAC’s amendments, however, would have to be conducted in accordance with the rule-making re­ quirements of the Administrative Procedure Act, 5 U.S.C. § 553,® unless the Secretary’s review and adoption of IACAC rules could be considered a foreign affairs function so as to trigger the foreign affairs exemption, 5 U.S.C. § 553(a)(1), or unless an exception were otherwise provided. We understand that your Department interprets that exemp­ 8 An association may require its members to charge nonmember brokers the commissions charged to the general public rather than the lower commissions charged to members. IS U.S.C. §78o-3(e). 6 See SEC regulations governing its review of amendments of registered association's rules. 17 C.F.R. 240.19b-4. 514 tion broadly. Bonfield, Military and Foreign Affairs Function RuleMaking under the APA, 71 Mich. L. Rev. 221, 258-62 (1972). We express no opinion on the applicability of this exemption. We would be happy, however, to consider your views on this question and advise you on the exemption’s applicability. If you decide to apply the amended rules only to agreements entered into after the effective date of the amendments, the amendments, be­ cause they would be presumed to have been agreed to by the parties to an arbitration agreement, would not have to be approved by the Secre­ tary of State. If you feel that the implementing legislation should, as a matter of policy, provide for some opportunity for governmental review of amendments, you may want to consider a “report and wait” provision. A model for this approach may be found in 28 U.S.C. § 2072 which delays the effective date of procedural rules promulgated by the Supreme Court until 90 days after the rules have been reported to Congress. Within that 90-day period, Congress may through the legisla­ tive process revoke all or some of the rules. L a r r y L . S im m s Deputy Assistant Attorney General Office o f Legal Counsel 515

Write a legal research memo on the following topic.

Constitutional Issues Raised by Inter-American Convention on International Commercial Arbitration P ro p o sed legislation g iv in g In te r-A m e ric a n C o m m ercial A rb itra tio n C om m ission ( IA C A C ) p o w e r to am en d rules w h ic h h a v e been en acted by C o n g ress w o u ld result in an im p ro p e r d eleg atio n o f legislative p o w e r to a p riv a te o rg an izatio n , and any am en d ed ru le co u ld not co n stitu tio n ally be ap p lied to ag re e m e n ts e n te re d in to a fter th e effe ctiv e d a te o f th e am en d m en ts. P ro v isio n in p ro p o sed legislation allo w in g o n e H ouse o f C o n g ress to d isa p p ro v e am e n d ­ m en ts to IA C A C rules, a lth o u g h n ot a v e to o f ex ecu tiv e actio n , n onetheless violates th e P resen tm en t C lauses. A n a lte rn a tiv e rev iew m ech anism w h e re b y th e S e c re ta ry o f S tate w o u ld be req u ire d to a p p ro v e o r d isa p p ro v e am en d m en ts to th e IA C A C rules w o u ld be c o n stitu tio n a lly accep tab le, since th e am en d m en ts w o u ld not be binding on the g o v e rn m e n t but m erely ad v iso ry. March 20, 1980 MEMORANDUM OPINION FOR TH E ASSISTANT LEG AL ADVISER FOR PRIV A TE IN TER N A TIO N A L LAW, D EPA R TM EN T O F STA TE This responds to your request for the views of the Justice Depart­ ment on the congressional review mechanism in the proposed imple­ menting legislation for the Inter-American Convention on International Commercial Arbitration. You ask whether the review mechanism con­ stitutes a “legislative veto.” Our analysis of the review mechanism in the proposed legislation raises an additional question whether Congress may delegate its legislative power to the Inter-American Commercial Arbitration Commission (IACAC), a private organization. While the law is not clear in this area, we conclude that the delegation made in the proposed legislation presents serious constitutional problems. We believe, however, that the constitutional problems could be ameliorated if IACAC’s amendments to its rules were applicable only to agreements entered into after the effective date of the amendments. The review mechanism in the proposed legislation, although not a veto of executive action, is a legislative veto and is, therefore, unconstitutional. At your request, we suggest an alternative review mechanism. 509 I. The Inter-American Convention on Internationa) Commercial Arbi­ tration provides that, when parties of signatory nations have agreed to submit to arbitration any dispute that may arise out of a commercial transaction, the arbitration shall be conducted in accordance with the rules of procedure of the IACAC unless the parties have expressly agreed otherwise. Articles 1 & 3. The proposed implementing legisla­ tion for the Convention defines the rules referred to in Article 3 of the Convention to be those rules as promulgated by the Commission on January 1, 1978. § 306(a). If the IACAC modifies or amends its rules, § 306(b) would require the Secretary of State to transmit to the House of Representatives and the Senate a document containing the rules as modified or amended together with a report setting forth the reasons for and the effect of such modifications or amendments. A majority of either the House or Senate may disapprove the rules as modified or amended within 90 days of the transmission. If the rules are not disap­ proved, the rules shall be published after 90 days have elapsed and shall become effective 120 days after publication. If the rules are disap­ proved, the Secretary is required to use his best efforts to reconvene the rulemaking body of IACAC to ensure that the rules applicable to the signatory parties to the Convention are uniform. II. The threshold question presented by the proposed implementing leg­ islation is whether it involves an unconstitutional delegation of legisla­ tive power to a private organization. The legislation would incorporate by reference and thereby enact the rules of procedure of the IACAC in effect as of January 1, 1978. Since it is assumed that Congress would review and approve the rules in enacting the legislation, the incorpora­ tion of those rules by reference does not involve a delegation of legislative power to a private organization. C f United States v. Sharpnack, 355 U.S. 286, 293 (1958). See also Liebmann, G.W., Delega­ tion to Private Parties in American Constitutional Law, 50 Ind. L.J. 650, 680 (1975). However, the proposed legislation implicitly gives the IACAC the power to amend those rules subject to one House’s disap­ proval of such amendments. In effect, the legislature would delegate to a private organization the power to amend congressional legislation. We believe that such a delegation raises serious constitutional problems. In analyzing the delegation question, we are hampered by the fact that “ [t]he case law has not crystallized any consistent principles, either in the federal courts or in the state courts.” Davis, Administrative Law Treatise §2.14 at 138 (1958). Nevertheless, a survey of the relevant Supreme Court cases provides some guidance. In 1908, the Supreme Court rejected a claim that a statute permitting the American Railway 510 Association to set the uniform height for drawbars on freight cars constituted an invalid delegation, St. Louis, Iron Mountain & Southern Railway Co. v. Taylor, 210 U.S. 281 (1908). Three years earlier, it had upheld a delegation to miners to make regulations governing the re­ cording of mining claims and the amount of work necessary to establish possession of a mining claim. Butte City Water Co. v. Baker, 196 U.S. 119 (1905). However, more recently the Court found invalid a delegation to producers of two-thirds of coal to fix for producers selling coal to government contractors the minimum wages and maximum hours of their workers. Carter v. Carter Coal Co., 298 U.S. 238, 310 (1936). Holding that the delegation violated the Due Process Clause of the Fifth Amendment, the Court stated: The power conferred upon the majority is, in effect, the power to regulate the affairs of an unwilling minority. This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business. Id. at 311. In A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), the Court, addressing the argument that a delegation to the President to approve codes of fair competition proposed by trade asso­ ciations was proper because a delegation to the trade associations alone would be constitutional, stated: But would it be seriously contended that Congress could delegate its legislative authority to trade or industrial associations or groups so as to empower them to enact the laws they deem to be wise and beneficent for the rehabili­ tation and expansion of their trade or industries? Could trade or industrial associations or groups be constituted legislative bodies for that purpose because such associa­ tions or groups are familiar with the problems of their enterprises? . . . Such a delegation of legislative power is unknown to our law and is utterly inconsistent with the constitutional prerogatives and duties of Congress. Id. at 537. The Court in Schechter distinguished St. Louis, Iron Mountain & Southern Railway Co., as involving a matter of a technical nature and Butte City Water Co. as a recognition of local customs and of the rules of miners concerning mining claims. 295 U.S. at 537. Adopting this distinction, it could be argued that the IACAC rules are not substantive regulations capable of imposing anti-competitive or unfair restrictions but are merely “technical” rules promulgated by a 511 presumably disinterested body with a recognized expertise in arbitration procedure. Cf. Liebmann, supra at 680-719. However, because the rules may affect substantive rights,1 we are reluctant to conclude on the basis of this distinction that the delegation to the IACAC is clearly constitutional, especially in light of the scar­ city and age of federal case law approving delegation to private bodies.2 Our concern about the effect such amendments might have on sub­ stantive rights would be significantly reduced if the amendments would apply only to agreements entered into after the effective date of the amendments. This approach would eliminate any potential for unfair­ ness because a party entering an arbitration agreement would have the opportunity to examine the amendments to the IACAC rules and, if he regarded the amendments as unfair, could either decline to agree to arbitration or negotiate with the other party to the agreement the application of other rules or modifications to the amendments.3 Whether you decide to apply the amended rules to all agreements in the interest of uniformity or only to agreements entered into after the effective -date of amendments will determine whether governmental review is required. If the former approach is adopted, we believe that, in order to minimize the possibility of a challenge to amended IACAC rules, the rules should be subject to governmental review and adoption by legislation. III. The proposed legislative veto mechanism, although it does provide some governmental review of IACAC amendments, presents other con­ stitutional problems. As you point out in your memorandum, this review mechanism is unlike the classic “legislative veto” provision 1 For instance, the rules govern the place of arbitration, the choice o f law, the appointment of arbitrators, and the right to an oral hearing. It is conceivable that the rules could be amended in such a manner that American citizens could be disadvantaged in arbitration proceedings, e.g., a country distant from the United States could be designated as the place of arbitration. 2 Other problems could also be present here. First, a problem could arise out of the concept that, in a representative government, governmental powers should be vested in elected or disinterested public officials. In this manner, governmental decisions ‘and processes are subject to the checks of a variety of legal controls such as the oath of office, the conflict of interest laws, the control over appropriations, the powers of appointment, confirmation, or removal, and ultimately the electoral process. Another problem arises from the nature of the power vested in the private body. It could be argued that rule­ making power may be constitutionally vested only in “Officers of the United States” appointed pursuant to the Appointments Clause, Article II, § 2, clause 2. See Buckley v. Valeo. 424 U.S. 1, 113-41 (1976). Finally, if it is constitutional to delegate legislative power to private organizations, such a delegation should be subject to standards restricting the exercise of that power. C f A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). Although the courts’ attitude toward delegation of legislative power to executive agencies without specific standards has relaxed considerably, see gener­ ally K.C. Davis, Administrative Law Treatise, §§2.05, 2.06 and 2.15 (1958), the lack of the checks mentioned above on a private organization’s exercise of that power would suggest that standards imposed upon the exercise of legislative power by private organizations should be more stringent than the standards imposed on public bodies. 3 Article 3 of the Inter-American Convention on International Commercial Arbitration applies the IACAC rules only when parties to an arbitration agreement have not expressly agreed otherwise. 512 which purports to vest one House of Congress with the power to veto Executive action. Instead, the provision would allow one House of Congress to veto “private” action. Assuming, arguendo, that Congress could delegate to the IACAC the power to amend rules that had been enacted by Congress, the question is whether the Constitution author­ izes a procedure whereby one House may control the exercise of discretion vested in the IACAC. Article I, § 1 of the Constitution vests all legislative powers in a Congress, consisting of a Senate and House of Representatives. Further­ more, those powers cannot be exercised absent participation by the President. Article I, § 7, clause 2 requires “[e]very Bill . . . be pre­ sented to the President of the United States” for his approval or disapproval before it can become a law. Article I, § 7, clause 3 provides that “[e]very Order, Resolution, or Vote” to which concurrence of both Houses is necessary shall be presented to the President for his approval or veto.4 The Presentment Clauses thus provide two primary checks on the exercise of legislative power—the principle of bicameralism and the Executive veto. The veto provision in the proposed implementing legis­ lation would not respect these constitutional checks. The proposed legislation would allow one House of Congress to disapprove amend­ ments to the IACAC rules, but that legislative decision would not be presented to the President for his approval or veto. Nor would the President be given the opportunity to veto any “approval” of the amendments because the approval would be expressed by congressional inaction. Further, exercise by one House of the veto power would purport to place on the Secretary of State a legal duty to take steps to reconvene the rulemaking body of the IACAC. In our view, legal duties may not be imposed on the Executive by the exercise of some­ thing less than the full legislative process. Finally, if Congress could constitutionally delegate to the IACAC its legislative power to amend the rules, that power may be revoked only by affirmative legislative action by both Houses of Congress and the President, not by one House of Congress disapproving the exercise of that power. IV. If you decide that the IACAC rules amended should, as a matter of policy, apply to all arbitration agreements, you may wish to consider an 4 Giving the President this integral role in the legislative process was believed necessary by the Framers in order to limit congressional power. As James Madison put it: “(I]t is against the enterpris­ ing ambition of this [legislative] department that the people ought to indulge all their jealousy and exhaust all their precautions." The Federalist No. 48, at 309 (New American Library Ed. 1961). Alexander Hamilton viewed the veto power of the President as necessary to prevent legislative and Executive powers from becoming blended in the same hands. Id., No. 73, at 442. For more extensive discussion of the constitutionality of legislative vetoes, see 37 Op. A tt’y Gen. 56 (1933); 41 Op. A tt’y Gen! 230 (1955); 41 Op. A tt'y Gen. 300 (1957). 513 alternative governmental review mechanism which would vest the Sec­ retary of State with the power and duty to approve or disapprove amendments to the IACAC rules. This approach would cure the pro­ posed legislation of both constitutional infirmities. IACAC’s action in amending the rules would not be an exercise of legislative power because the amendments would not be binding on the government but would be merely advisory. The courts have held similar schemes not to be an unconstitutional delegation of legislative power. Sun-Shine An­ thracite Coal Co. v. Atkins, 310 U.S. 381 (1940); Todd & Co., Inc. v. SEC, 557 F.2d 1008, 1012-13 (3d Cir. 1977); R.H. Johnson & Co. v. SEC, 198 F.2d 690, 695 (2d Cir. 1952). A model for this approach may be found in the Maloney Act, 15 U.S.C. § 78o-3, authorizing Securities and Exchange Commission (SEC) registration of approved associations of securities dealers. Both the Second and Third Circuits have upheld the Maloney Act against a challenge that it unconstitutionally delegates legislative power to pri­ vate parties. Todd & Co., Inc. v. SEC, 557 F.2d 1008, and R.H. Johnson & Co. v. SEC, 198 F.2d 690. Membership in a registered association, as a practical matter, is essential to doing business in over-the-counter securities.5 The Maloney Act authorizes these associations to adopt substantive as well as procedural rules, to conduct disciplinary proceed­ ings and to enforce sanctions, including expulsion. The associations are required to submit any changes in or additions to their rules to the SEC for review. 15 U.S.C. § 78o-3(j). The rules as amended become effec­ tive if within 20 days the SEC has not disapproved the amendments. The SEC is required to disapprove the amendments if they are not consistent with the Act. The Maloney Act resembles the proposed implementing legislation in that amendments to the rules become effective unless disapproved. A critical difference, however, is that the Act requires the SEC to disap­ prove amendments if they are inconsistent with the Act. The Act, therefore, places an affirmative obligation on the SEC to consider amendments, determine whether they are inconsistent with the Act and disapprove them if they are. The Secretary of State’s review of IACAC’s amendments, however, would have to be conducted in accordance with the rule-making re­ quirements of the Administrative Procedure Act, 5 U.S.C. § 553,® unless the Secretary’s review and adoption of IACAC rules could be considered a foreign affairs function so as to trigger the foreign affairs exemption, 5 U.S.C. § 553(a)(1), or unless an exception were otherwise provided. We understand that your Department interprets that exemp­ 8 An association may require its members to charge nonmember brokers the commissions charged to the general public rather than the lower commissions charged to members. IS U.S.C. §78o-3(e). 6 See SEC regulations governing its review of amendments of registered association's rules. 17 C.F.R. 240.19b-4. 514 tion broadly. Bonfield, Military and Foreign Affairs Function RuleMaking under the APA, 71 Mich. L. Rev. 221, 258-62 (1972). We express no opinion on the applicability of this exemption. We would be happy, however, to consider your views on this question and advise you on the exemption’s applicability. If you decide to apply the amended rules only to agreements entered into after the effective date of the amendments, the amendments, be­ cause they would be presumed to have been agreed to by the parties to an arbitration agreement, would not have to be approved by the Secre­ tary of State. If you feel that the implementing legislation should, as a matter of policy, provide for some opportunity for governmental review of amendments, you may want to consider a “report and wait” provision. A model for this approach may be found in 28 U.S.C. § 2072 which delays the effective date of procedural rules promulgated by the Supreme Court until 90 days after the rules have been reported to Congress. Within that 90-day period, Congress may through the legisla­ tive process revoke all or some of the rules. L a r r y L . S im m s Deputy Assistant Attorney General Office o f Legal Counsel 515

Write a legal research memo on the following topic.

Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours The statutes governing federal employment permit federal agencies to schedule part-time employees to work regularly scheduled weeks of 33 to 39 hours. The Federal Employees Part-Time Career Employment Act of 1978 does not limit agencies’ preexisting authority to schedule part-time employees to work any number of hours per week less than 40. December 31, 2015 MEMORANDUM OPINION FOR THE PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL CIVIL RIGHTS DIVISION The Civil Rights Division (“CRT”) has asked whether federal agencies may permit their part-time employees to work regularly scheduled workweeks of 33 to 39 hours. 1 In CRT’s view, such arrangements are lawful because the statutes governing federal employment grant agencies broad authority to set their employees’ schedules and no statute prohibits parttime schedules of 33 to 39 hours per week. 2 The Office of Personnel Management (“OPM”) disagrees. It observes that the Federal Employees Part-Time Career Employment Act of 1978, Pub. L. No. 95-437, 92 Stat. 1055 (codified as amended at 5 U.S.C. § 3401 et seq.) (the “Act”), defines “part-time career employment” for purposes of the Act as “part-time employment of 16 to 32 hours a week.” 5 U.S.C. § 3401(2). OPM argues that this provision sets forth the exclusive definition of part-time employment in the federal government and, as a result, bars part-time employees from working regular schedules of 33 to 39 hours per week. 3 1 See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal Counsel, from Jocelyn Samuels, Acting Assistant Attorney General, CRT, Re: Request for Legal Opinion (Nov. 6, 2013) (“CRT Memorandum”). 2 See id.; Memorandum for Karl Thompson, Acting Assistant Attorney General, Office of Legal Counsel, from Office of Employment Counsel, CRT, Re: Response to OPM Comments on Whether Agencies May Permit Employees to Work Part-Time Schedules of 33 to 39 Hours Per Week (Mar. 25, 2014) (“CRT Reply”). 3 See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal Counsel, from R. Alan Miller, Associate General Counsel, OPM, Re: Request for OPM Comments re Issue of Whether Agencies May Permit Employees to Work Part-Time 99 39 Op. O.L.C. 99 (2015) We conclude that the statutes governing federal employment permit regular part-time schedules of 33 to 39 hours per week. Before the enactment of the Act in October 1978, federal employment statutes permitted agencies to schedule part-time employees to work any number of hours per week less than 40, and in our view the Act did not alter that authority. The text of the Act does not prohibit any form of part-time employment, and the Act’s purpose, structure, legislative history, and statutory context do not provide a basis to infer such a prohibition. In reaching this conclusion, we do not address whether OPM has authority, independent of the Act, to prohibit agencies from offering parttime employment of more than 32 hours per week or whether agencies may as a policy matter elect to require their components not to offer such employment. Nor do we address what administrative steps, if any, CRT would need to undertake before scheduling part-time employees to work regular schedules of more than 32 hours per week. I. We begin with the relevant statutory and regulatory background: the statutes that governed part-time employment before enactment of the Act in 1978, the provisions of the Act, and subsequent regulatory action relating to the Act. A. For many decades, agencies have been authorized to “employ such number of employees . . . as Congress may appropriate for from year to year.” 5 U.S.C. § 3101 (Supp. II 1966); see 5 U.S.C. § 43 (1934) (“There is authorized to be employed in each executive department . . . such number of employees . . . as may be appropriated for by Congress from year to year.”). Since the enactment of the Federal Employees Pay Act of Schedules of 33 to 39 Hours Per Week (Dec. 31, 2013) (“OPM Memorandum”); E-mail for Leondra R. Kruger, Deputy Assistant Attorney General, Office of Legal Counsel, from Melanie J. Watson, OPM, Re: Solicitation of Views on Reduced Scheduling Issue att. (Feb. 18, 2014, 11:17 AM) (attachment referred to as “OPM Reply”); E-mail for Brian Boynton, Deputy Assistant Attorney General, Office of Legal Counsel, from Melanie J. Watson, OPM, Re: OLC Part-Time Government Employment Opinion: Follow-Up Questions (July 22, 2015, 1:50 PM). 100 Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours 1945, Pub. L. No. 79-106, 59 Stat. 295, Congress has required agencies “to establish . . . for all full-time officers and employees . . . a basic administrative workweek of forty hours.” Id. § 604(a) (codified as amended at 5 U.S.C. § 6101(a)(2)(A)). But Congress has long made clear that agencies are not limited to hiring only full-time employees. It has enacted numerous statutes that set forth rules governing part-time employees who may work less than the standard 40-hour schedule. One of the first statutes to address part-time federal employment was the 1945 Pay Act itself. In addition to establishing the basic 40-hour workweek, that statute instructed the Director of the Bureau of the Budget to “determine the numbers of full-time employees and man-months of part-time employment, which in his opinion are required” for “the proper and efficient performance” of each agency’s authorized functions, and to order agencies to release or terminate “any personnel or employment . . . in excess thereof.” Id. § 607(b). Hence, at the same time that Congress codified the 40-hour workweek for full-time employees, it also acknowledged the existence of “part-time employment” and permitted agencies to retain part-time personnel so long as they were not “in excess” of administrative personnel ceilings. In the decades that followed, Congress enacted additional statutes addressing part-time federal employment. For instance, in 1949, after discovering that “the estimated 10,000 part-time [federal] employees” working regular 5-day schedules were ineligible for sick and annual leave, H.R. Rep. No. 81-655, at 1, 5 (1949), Congress enacted a statute providing that “part-time officers and employees for whom there has been established a regular tour of duty covering not less than five days in any administrative workweek shall . . . be entitled to the benefits pro rata of the annual and sick leave Acts.” Pub. L. No. 81-316, § 1, 63 Stat. 703, 703 (1949) (codified as amended at 5 U.S.C. § 6302(c)). In 1964, Congress enacted the Dual Compensation Act, Pub. L. No. 88-448, 78 Stat. 484 (1964), which provided that federal employees could work in “more than one civilian office”—including more than one “temporary, parttime, or intermittent position”—for up to “an aggregate of forty hours of work in any one calendar week.” Id. §§ 101(3), 301(a) (codified as amended at 5 U.S.C. §§ 5531(a)(2), 5533(a)); see S. Rep. No. 88-935, at 17 (1964) (explaining that this statute would enable “part-time employees” to hold “a combination of part-time positions equaling one full-time 101 39 Op. O.L.C. 99 (2015) position”). In 1971, seeing “no reasonable justification for depriving part-time and intermittent salaried employees of premium pay,” S. Rep. No. 92-530, at 1–2 (1971), Congress made overtime pay available for federal employees working “full-time, part-time and intermittent tours of duty.” Pub. L. No. 92-194, 85 Stat. 648 (1971) (codified as amended at 5 U.S.C. § 5542(a)). And in September 1978, Congress enacted the Federal Employees Flexible and Compressed Work Schedules Act of 1978, Pub. L. No. 95-390, 92 Stat. 755, which authorized agencies to conduct three-year experiments “to test a . . . compressed schedule,” defined “in the case of a part-time employee” as a “biweekly basic work requirement of less than 80 hours which is scheduled for less than 10 workdays.” Id. §§ 201(1)(B), 202(a), (d). 4 The Civil Service Commission—the agency charged with administering the federal personnel laws until the establishment of OPM in 1978—also acknowledged agencies’ authority to hire part-time employees. In 1954, for instance, the Commission promulgated regulations defining a “[r]egularly scheduled administrative workweek . . . [f]or part-time employees” to mean “the officially prescribed days and hours within an administrative workweek during which such employees are required to be on duty regularly.” 19 Fed. Reg. 7097, 7097 (Nov. 2, 1954). And in 1971, the Commission issued a version of its Federal Personnel Manual that defined a “part-time employee” for purposes of administrative personnel ceilings as an employee “who works less than 40 hours a week.” Federal Personnel Manual, ch. 312, app. B, § B-2(d) (Apr. 30, 1971). B. In October 1978, Congress enacted the Federal Employees Part-Time Career Employment Act. At that time, Congress was aware that part-time employment existed throughout the federal government. See H.R. Rep. No. 95-932, at 2–3 (1978) (noting that “1.9 percent of all nonpostal Federal employees work part time” and listing percentages of employees See also Pub. L. No. 94-397, § 1(a), 90 Stat. 1202, 1202 (1976) (codified as amended at 5 U.S.C. § 8344(a)) (prescribing the civil service annuities available to employees working “on a part-time basis”); Classification Act of 1949, Pub. L. No. 81-429, § 202(30), 63 Stat. 954, 956 (codified as amended at 5 U.S.C. § 5102(c)(21)) (exempting some part-time employees from the pay classification system). 4 102 Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours working part-time in numerous federal agencies); S. Rep. No. 95-1116, at 3–4 (1978) (stating that “2.3 percent of the Federal work force were permanent part-time employees” in 1977). But committees in both Houses expressed concern that “[t]he Federal Government ha[d] lagged far behind the private sphere in providing and improving part-time employment opportunities of any type.” S. Rep. No. 95-1116, at 3; see H.R. Rep. No. 95-932, at 2. “The major obstacle[s] to part-time Federal employment,” the committees found, were “agency personnel ceilings set by the Office of Management and Budget,” under which a part-time employee occupied one of the limited number of positions allotted to each agency “whether the employee work[ed] two or 39 hours.” H.R. Rep. No. 95-932, at 3; see S. Rep. No. 95-1116, at 9. As a consequence of this system, the committees concluded, agencies had a tendency “to hire 39 hour per week ‘part timers,’” rather than “truly part-time employees,” H.R. Rep. No. 95-932, at 4, 7, and “in all likelihood employees falling into th[e] 35- to 39-hour a week category made up the vast majority of the new people hired to work part-time in the past year,” S. Rep. No. 95-1116, at 10. The Act was designed to address these problems. Its stated “purpose” is “to provide increased part-time career employment opportunities throughout the Federal Government.” Act § 2(b). It defines the term “part-time career employment” as follows: For the purpose of this chapter . . . (2) ‘part-time career employment’ means part-time employment of 16 to 32 hours a week (or 32 to 64 hours during a biweekly pay period in the case of a flexible or compressed work schedule under subchapter II of chapter 61 of this title) under a schedule consisting of an equal or varied number of hours per day, whether in a position which would be part-time without regard to this section or one established to allow job-sharing or comparable arrangements, but does not include employment on a temporary or intermittent basis. 5 U.S.C. § 3401. To further its stated purpose, the Act requires the head of each agency to “establish and maintain a program for part-time career employment.” Id. § 3402(a)(1). Such a program must include, among other things, “procedures and criteria to be used in connection with establishing or converting positions for part-time career employment,” “annual goals 103 39 Op. O.L.C. 99 (2015) for establishing or converting positions for part-time career employment,” and “interim and final deadlines for achieving such goals.” Id. § 3402(a)(1)(B), (C). The Act also includes several provisions to protect existing employees from any negative consequences of such programs. It prohibits an agency from “abolish[ing] any position occupied by an employee in order to make the duties of such position available to be performed on a part-time career employment basis,” id. § 3403(a); states that “[a]ny person who is employed on a full-time basis in an agency shall not be required to accept part-time employment as a condition of continued employment,” id. § 3403(b); and makes its provisions inapplicable to positions for which, “on the date of [the Act’s] enactment . . . there is in effect . . . a collective-bargaining agreement which establishes the number of hours of employment a week,” id. § 3405(a); see also id. § 3405(b) (stating that the Act does not apply to certain senior-level positions). The Act also addresses the application of personnel ceilings to parttime career employees. It provides that “[i]n administering any personnel ceiling applicable to an agency (or unit therein), an employee employed by such agency on a part-time career employment basis shall be counted as a fraction which is determined by dividing 40 hours into the average number of hours of such employee’s regularly scheduled workweek.” Id. § 3404. Thus, rather than counting each part-time employee as one full employee for purposes of an agency’s personnel ceiling—the practice that the Act’s drafters thought encouraged the hiring of “39 hour per week ‘part timers,’” H.R. Rep. No. 95-932, at 4—the Act “mandates the use of a ‘full-time equivalent’ . . . accounting system” that counts each part-time career employee as a fraction equivalent to the fraction of a full-time workweek he works. S. Rep. No. 95-1116, at 9. A part-time career employee who “work[s] a regularly scheduled workweek of 20 hours,” for example, now “count[s] as one-half ” of a full-time employee for purposes of an agency’s personnel ceiling. Id. at 17. Finally, the Act includes “[m]iscellaneous provisions” concerning retirement, life insurance, and health benefits. H.R. Rep. No. 95-932, at 12; S. Rep. No. 95-1116, at 18. The Act states that the Civil Service Commission (later replaced by OPM) may not exclude an employee who occupies “a position on a part-time career employment basis” from receiving retirement, life insurance, or health benefits. Act § 4(a)–(c)(1) 104 Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours (codified at 5 U.S.C. §§ 8347(g), 8716(b), 8913(b)). It also specifies that government contributions for part-time career employees’ health insurance are to be prorated based on the number of hours worked per week. Id. § 4(c)(2)(A) (codified as amended at 5 U.S.C. § 8906(b)(3)). Because this proration requirement was a change from the government’s prior practice of “contribut[ing] to [a part-time employee’s] health benefits the same amount as to an employee working 40 hours a week,” S. Rep. No. 95-1116, at 12, Congress provided that “any employee serving in a position on a part-time career employment basis on the date of the enactment of this Act” would continue to receive full health benefits “for such period as the employee continues to serve without a break in service in that or any other position on such part-time basis,” Act § 4(c)(2)(B). C. After the Act’s passage, OPM promulgated a set of regulations regarding part-time career employment. See Part-Time Employment; Federal Employees Health Benefits Program, 44 Fed. Reg. 57,379 (Oct. 5, 1979). OPM made three statements in the regulations’ preamble that are pertinent here. First, OPM concluded that the Act prohibited agencies from “regularly employ[ing]” part-time employees “under schedules of more than 32 hours per week.” Id. at 57,379. It reasoned that “[a]lthough the major thrust of [the Act] was to expand Federal part-time employment opportunities, Congress also evidenced clear intent to end the practice of employing ‘nominal’ part-time employees in the 33- to 39-hour-per-week range to skirt personnel ceilings.” Id. Second, OPM stated that this “prohibition” on part-time employment of more than 32 hours per week did “not apply to employment of part-timers who were already working on a permanent part-time basis before [April 8, 1979] for as long as they continue to work part time.” Id. Third, OPM concluded that because “Congress did not explicitly evidence intent to end the practice of employing career part-timers for less than 16 hours per week in the same way that 33- to 39-hour-per-week employment was proscribed,” agencies could “employ permanent workers under regular schedules of less than 16 hours per week.” Id. at 57,380; see also id. at 57,382 (adding 5 C.F.R. § 340.202(b)). 105 39 Op. O.L.C. 99 (2015) The Department of Justice’s Justice Management Division (“JMD”) has also issued an order interpreting the Act. As relevant here, that order states that while “a part-time employee” may work more than 32 hours per week on a temporary basis, “[a] temporary increase in the tour of duty above 32 hours per week is not permitted for more than two consecutive pay periods.” Part-Time Career Employment Program, Human Resources Order DOJ 1200.1, ch. 1-8, ¶ B.6 (Mar. 26, 2004), http://www.justice.gov/ jmd/hr-order-doj12001-part-1-employment. JMD has informed this Office that it, like OPM, “does not believe there is authority to expand part time schedules to exceed 32 hours on an ongoing basis.” E-mail for Leondra R. Kruger, Deputy Assistant Attorney General, Office of Legal Counsel, from Arthur E. Gary, General Counsel, JMD, Re: Question about parttime employment (Nov. 25, 2014, 6:48 PM). II. Having set forth the relevant background, we now consider the legal question at issue: Does federal law permit agencies to schedule their parttime employees to work regular schedules of 33 to 39 hours per week? We first analyze the scope of agencies’ authority to schedule part-time workers before the Act. We then address the effect of the Act on prior law, considering at the outset the standard that governs our inquiry and then evaluating the Act under that standard. A. We begin with the scope of agencies’ authority prior to the Act’s adoption. Both OPM and CRT assert that before the Act became law, agencies had authority both to hire part-time employees and to schedule them to work 33 to 39 hours per week. See OPM Memorandum at 5 (“Prior to enactment of the Act, agencies could employ individuals on a part-time work schedule of 33 to 39 hours per week.”); CRT Reply at 1 (similar). We agree that agencies possessed both types of authority. First, before the Act, agencies possessed authority to hire part-time employees. As noted above, for decades Congress had vested agencies with general authority to “employ such number of employees . . . as Congress may appropriate for from year to year,” 5 U.S.C. § 3101 (Supp. II 1966); see 5 U.S.C. § 43 (1934) (similar), and in numerous statutes 106 Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours between 1945 and October 1978, Congress made clear that the “employees” agencies could hire included part-time employees. For example, Congress permitted agencies to employ “part-time employ[ees]” within limits set by the Director of the Bureau of the Budget, Pub. L. No. 79-106, § 607(b); made “part-time officers and employees” eligible for annual and sick leave, Pub. L. No. 81-316, § 1; permitted employees to work in more than one “part-time . . . position” for up to an aggregate of 40 hours per week, Pub. L. No. 88-448, §§ 101(3), 301(a); extended overtime pay to employees working “part-time . . . tours of duty,” Pub. L. No. 92-194; and allowed “part-time employee[s]” to work compressed schedules, Pub. L. No. 95-390, § 201(1)(B). These statutes were premised on the lawfulness of part-time employment across the federal government. See, e.g., H.R. Rep. No. 81-655, at 2 (describing existing part-time employees whom statute would benefit); S. Rep. No. 92-530, at 1–2 (same). It is therefore straightforward to conclude from them that agencies possessed the authority to hire part-time employees. See Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2520 (2015) (inferring that “disparate-impact liability exists” under the Fair Housing Act from a series of amendments “that assume the existence of disparate-impact claims”); Bilski v. Kappos, 561 U.S. 593, 607 (2010) (inferring that business methods are patentable from provisions that “explicitly contemplate[] the existence of at least some business method patents” and that would be “render[ed] . . . meaningless” if those patents were unlawful). Congress again recognized agencies’ preexisting authority to hire parttime employees when it enacted the Act. Several of the Act’s provisions refer to or acknowledge part-time employees hired prior to the Act’s enactment. See Act § 4(c)(2)(B) (grandfathering health benefits for “any employee serving in a position on a part-time career employment basis on the date of the enactment of this Act”); id. § 2(b) (stating that the Act’s purpose is “to provide increased part-time career employment opportunities throughout the Federal Government” (emphasis added)); 5 U.S.C. § 3401(2) (referring to “position[s] which would be part-time without regard to this section”). Moreover, Congress’s central concern in enacting the Act was that agencies were hiring too few part-time employees. See S. Rep. No. 95-1116, at 3–4, 8–10; H.R. Rep. No. 95-932, at 2–3, 8. Nothing in the Act’s legislative history reveals any doubt about agencies’ authority to hire part-time employees in the first place. 107 39 Op. O.L.C. 99 (2015) Second, prior to the Act, agencies also possessed authority to schedule part-time employees to work any number of hours per week below 40. For full-time employees, Congress set “a basic administrative workweek of 40 hours.” 5 U.S.C. § 6101(a)(2)(A) (1976). But Congress did not set a specific number of hours that part-time employees were required to work. By implication, agencies could not schedule part-time employees to work a full-time schedule of 40 hours per week. See Webster’s Third New International Dictionary 1648 (1976) (defining “parttime” to mean “employed for or working less than the amount of time considered customary or standard”). Otherwise, however, agencies had unrestricted authority to schedule part-time employees to work any number of hours per week below 40—including, if they chose, 33 to 39 hours. See 5 U.S.C. § 6101(b)(1) (Supp. II 1966) (recognizing the authority of agency heads to set employee schedules); 5 C.F.R. § 25.203(a)(2) (1961) (defining the “‘[r]egularly scheduled administrative workweek’ . . . [f ]or part-time employees” as “the officially prescribed days and hours within an administrative workweek during which such employees are required to be on duty regularly”); Federal Personnel Manual, ch. 312, app. B, § B-2(d) (Apr. 30, 1971) (defining a “part-time employee” as one “who works less than 40 hours a week”); see also Pub. L. No. 95390, § 201(1)(B) (defining a compressed schedule for part-time employees as a “biweekly basic work requirement of less than 80 hours which is scheduled for less than 10 workdays” (emphasis added)). Congress has not repealed any of the major enactments discussed above. Except for the provision of the 1945 Pay Act regarding personnel ceilings, all of the statutes and regulations concerning part-time employment or granting agencies employment or scheduling authority remain in effect. See 5 U.S.C. § 3101 (2012 & Supp. II 2014) (employment authority); id. §§ 5531(2), 5533(a) (dual compensation); id. § 5542(a) (premium pay); id. § 6101(a)(3) (scheduling authority); id. § 6121(5)(B) (compressed schedules); id. § 6302(c) (annual and sick leave); 5 C.F.R. § 610.102 (2015) (part-time workweek); see also Pub. L. No. 81-784, § 301(85) (1950), 64 Stat. 832, 843 (repealing statutory personnel ceilings). Hence, unless Congress has enacted a statute limiting that authority, agencies may continue to schedule part-time employees to work 33 to 39 hours per week. 108 Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours B. We now consider the effect of the Federal Employees Part-Time Career Employment Act on the prior law governing part-time employment. In order to do so, we must first identify the standard that will control our analysis. CRT and OPM suggest different governing standards in support of their respective constructions of the Act. On one hand, CRT argues that the Act should not be construed to diminish agencies’ authority to set part-time work schedules unless it clearly states that it was intended to have that effect. See CRT Memorandum at 4. CRT relies on the principle that “‘[r]epeals by implication . . . will not be found unless an intent to repeal is clear and manifest.’” Id. (quoting Rodriguez v. United States, 480 U.S. 522, 524 (1987) (per curiam)); see United States v. Fausto, 484 U.S. 439, 453 (1988) (stating that “it can be strongly presumed that Congress will specifically address language on the statute books that it wishes to change”). CRT contends that any limitation of agencies’ scheduling authority would amount to a partial repeal of chapter 61 of title 5 of the United States Code—the chapter granting agencies general scheduling authority—and that the Act should therefore be presumed not to impose such a limitation. CRT Memorandum at 4; see CRT Reply at 1–2. We do not agree that the presumption against implied repeals applies here. Chapter 61 of title 5 does not expressly state that agencies have authority to schedule part-time employees to work any number of hours per week below 40. Rather, as relevant, it provides that the basic administrative workweek for full-time employees is 40 hours, see 5 U.S.C. § 6101(a)(2)(A), and suggests that agencies have authority to set different schedules for employees who are not full-time, see, e.g., id. § 6101(a)(3)(A) (requiring agencies to “provide, with respect to each employee . . . that assignments to tours of duty are scheduled in advance”). As discussed above, it is a fair implication that, in the absence of any other limit, agencies may schedule part-time employees to work up to 39 hours per week. But a statute “does not stand repealed” whenever its “implications . . . may be altered by the implications of a later statute.” Fausto, 484 U.S. at 453. A repeal occurs—and thus the presumption against repeals by implication is applicable—only where a subsequent statute contradicts “express statutory text,” not “a legal dis109 39 Op. O.L.C. 99 (2015) position implied by a statutory text.” Id. Consequently, we do not believe that the Act must contain a clear statement in order to limit agencies’ preexisting authority to schedule part-time employees. OPM, on the other hand, contends that its 1979 regulations interpreting the Act to bar part-time schedules of more than 32 hours per week “merit deference.” OPM Memorandum at 6. We presume that OPM is referring to the type of deference described in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), which held that courts should defer to an “an agency’s construction of the statute which it administers” where “the statute is silent or ambiguous with respect to the specific issue” under review and the agency’s construction is “permissible.” Id. at 842–43. Chevron deference, however, is inapplicable in this context. Courts have held that agencies are not entitled to Chevron deference when interpreting “generic statutes that apply to dozens of agencies.” Collins v. Nat’l Transp. Safety Bd., 351 F.3d 1246, 1252 (D.C. Cir. 2003); see Bowen v. Am. Hosp. Ass’n, 476 U.S. 610, 642 n.30 (1986) (explaining that “the same basis for deference predicated on expertise” was not present where an agency was interpreting a statute under which “[t]wentyseven agencies . . . ha[d] promulgated regulations”); Proffitt v. FDIC, 200 F.3d 855, 860 (D.C. Cir. 2000) (declining to grant Chevron deference to an agency’s interpretation of a “statute of general applicability” (internal quotation marks omitted)); Salleh v. Christopher, 85 F.3d 689, 692 (D.C. Cir. 1996) (noting a line of decisions “that have declined to defer to an agency’s interpretation of a statute when more than one agency is granted authority to interpret the same statute”); cf. Proposed Agency Interpretation of “Federal Means-Tested Public Benefit[s]” Under Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 21 Op. O.L.C. 21, 34–35 (1997) (distinguishing a situation in which “a statute assigns a group of agencies a particular task that is related to the duties that the agencies already have been assigned by their governing statutes” and “the agencies . . . concur in their interpretation” of that statute). Here, numerous agencies administer, and are required to promulgate regulations implementing, the Act. See 5 U.S.C. § 3402(a)(1) (requiring “the head of each agency, by regulation, [to] establish and maintain a program for part-time career employment within such agency”). OPM’s authority under the Act is limited to “advis[ing] and assist[ing]” agencies in developing their own implementing regulations and conducting a 110 Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours “research and demonstration program with respect to part-time career employment.” Id. § 3402(b)(1)–(2). Hence, although OPM’s views concerning the Act merit respect and careful consideration, we do not believe they are entitled to Chevron deference. 5 Because neither the presumption against implied repeals nor Chevron deference applies, our role is to identify the best reading of the Act using standard tools of statutory construction. See, e.g., Reimbursing TransitionRelated Expenses Incurred Before the Administrator of General Services Ascertained Who Were the Apparent Successful Candidates for the Offices of President and Vice President, 25 Op. O.L.C. 7, 8 (2001) (endeavoring to identify “the best reading of the statute”). C. There appear to be two possible ways to interpret the Act. The first possible interpretation is that the Act encourages agencies to schedule part-time employees to work 16 to 32 hours per week but does not prohibit agencies from setting part-time schedules outside that range. CRT favors this reading. See CRT Memorandum at 2–3. The second possible interpretation is that the Act not only encourages “part-time career employment” but also redefines part-time employment to include only employment of 16 to 32 hours per week. OPM favors this reading. See OPM Memorandum at 1; 44 Fed. Reg. at 57,379. In the following sections, we examine in turn the Act’s text, purpose, structure, history, and context to determine which of these competing interpretations is the better reading of the Act. 1. “‘[W]e start, of course, with the statutory text.’” Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013) (quoting BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006)). As noted above, the Act defines part-time career employment “[f ]or the purpose of th[e] chapter” in which it appears as “part-time employment of 16 to 32 hours a week.” 5 U.S.C. § 3401(2). It then proEven if Chevron deference were applicable, the first step in the analysis would be to determine whether the Act is ambiguous using “traditional tools of statutory construction.” Chevron, 467 U.S. at 843 n.9. Applying those tools here, we do not believe the Act is ambiguous for the reasons set forth below. 5 111 39 Op. O.L.C. 99 (2015) vides that, “in order to promote part-time career employment opportunities in all grade levels,” each agency “shall establish and maintain a program for part-time career employment,” which must include “procedures and criteria” and “annual goals” for “establishing or converting positions for part-time career employment,” as well as “interim and final deadlines for achieving such goals.” Id. § 3402(a)(1)(B), (C). The Act also specifies that “[i]n administering any personnel ceiling,” a part-time career employee “shall be counted as a fraction” equivalent to the fraction of the full workweek she works. Id. § 3404. Additionally, the Act entitles parttime career employees to full retirement and life insurance benefits and to health benefits prorated to the portion of the full workweek they work. Act § 4. On its face, the Act thus defines a particular type of part-time employment—“part-time career employment”—and establishes programs and requirements to encourage it. The Act does not state that all part-time employment must satisfy its definition of part-time career employment. Nor does the Act say that any particular form of part-time employment is prohibited or limit the number of hours that employees other than “parttime career employees” may work. It simply leaves all part-time employment except part-time career employment unaddressed. OPM contends that the Act’s definition of part-time career employment “redefine[s] the specific hours which constitute part-time employment” to include only “work schedules of 16 to 32 hours per week.” OPM Memorandum at 2; see 44 Fed. Reg. at 57,379 (stating that the Act “narrows the definition of part-time career employment in the Federal Government from scheduled work of less than 40 hours per week to scheduled work between 16 and 32 hours per week”). That interpretation, however, is difficult to reconcile with the plain text of the definition. The Act defines only the specific term “part-time career employment,” not part-time employment generally. 5 U.S.C. § 3401(2). And it defines that term only “[f ]or the purpose of this chapter”—i.e., chapter 34 of title 5, which consists exclusively of the Act itself. Id. It is unclear why Congress would have limited the definition in these ways if its intention was to redefine part-time employment more broadly. Moreover, numerous courts have expressly declined to “apply a definition from one statutory provision to another” where it is defined only “for purposes of ” a particular provision, even if that provision offers “the only definition of [the defined 112 Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours term] in the [U.S.] Code.” United States v. Mazza-Alaluf, 621 F.3d 205, 209–210 (2d Cir. 2010); see, e.g., United States v. Ervin, 601 F. App’x 793, 799 (11th Cir. 2015) (per curiam); Molski v. M.J. Cable, Inc., 481 F.3d 724, 733 (9th Cir. 2007); United States v. Savin, 349 F.3d 27, 36 (2d Cir. 2003); Sierra Club v. EPA, 325 F.3d 374, 383 (D.C. Cir. 2003); Cunningham v. Scibana, 259 F.3d 303, 308 n.2 (4th Cir. 2001); United States v. Levario-Quiroz, 161 F.3d 903, 908 (5th Cir. 1998); Moldovan v. Great Atl. & Pac. Tea Co., 790 F.2d 894, 901 (3d Cir. 1986). Hence, the plain text of the Act does not limit agencies’ preexisting authority to schedule part-time employees to work any number of hours per week below 40 or redefine “part-time” employment as that term is used throughout the laws governing federal employment. E.g., 5 U.S.C. §§ 5531(2), 5542(a), 6121(5)(B), 6302(c). That is a strong indication that the Act does not prohibit part-time employment that falls outside the Act’s definition. See Lamie v. U.S. Tr., 540 U.S. 526, 534 (2003) (“It is well established that when the statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.” (internal quotation marks omitted)). 2. We next consider the purpose of the Act. The statute addresses this subject directly: The Act states that its “purpose . . . is to provide increased part-time career employment opportunities throughout the Federal Government.” Act § 2(b). The Act reiterates this objective in its core provision, instructing agencies to establish part-time career employment programs “[i]n order to promote part-time career employment opportunities in all grade levels.” 5 U.S.C. § 3402(a)(1). These statements of purpose indicate that the Act is designed to “provide increased . . . opportunities” for and “promote” part-time career employment, principally through the requirement that agencies establish part-time career employment programs. They do not contain any suggestion that Congress intended to prohibit alternative forms of part-time employment. Nor does the Act contain any other expressions of purpose that might arguably support such a reading. The Act’s stated purpose, therefore, also supports the first possible interpretation of the statute. 113 39 Op. O.L.C. 99 (2015) 3. We also consider the structure of the Act. As discussed above, the Act requires each agency to “establish and maintain a program for part-time career employment,” 5 U.S.C. § 3402(a)(1); provides that each part-time career employee “shall be counted as a fraction” of a full-time employee for purposes of federal personnel ceilings, id. § 3404; and specifies the retirement, life insurance, and health benefits to which part-time career employees are entitled, Act § 4. The principal provisions of the Act—the requirement that agencies establish part-time career employment programs and the new approach to counting part-time employees covered by the Act—work just as Congress intended under either possible interpretation of the Act. Regardless of whether the Act is read to allow part-time employment that falls outside the Act’s definition of part-time career employment, each agency has the same legal duty to “establish and maintain a program for part-time career employment,” 5 U.S.C. § 3402(a)(1), thereby ensuring that agencies provide “increased part-time career employment opportunities,” Act § 2(b). Similarly, no matter whether agencies may hire parttime employees outside the Act, the provision of the Act addressing agency personnel ceilings eliminates any incentive to favor part-time employees who work nearly 40 hours per week over part-time employees covered by the Act in order to “skirt personnel ceilings.” H.R. Rep. No. 95-932, at 7; see 5 U.S.C. § 3404. OPM contends that support for its interpretation can be found in the structure of the Act’s provisions concerning the benefits available to parttime career employees. See OPM Memorandum at 3–6. In considering these provisions, we must be mindful that Congress typically “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 458, 468 (2001). A prohibition on part-time employment of less than 16 or more than 32 hours per week would constitute an important feature of the Act and a significant limitation on agencies’ scheduling authority. In contrast, the Act’s “[m]iscellaneous provisions” concerning benefits, H.R. Rep. No. 95-932, at 12; S. Rep. No. 95-1116, at 18, are ancillary features of the statute that do not purport to address the authority of agencies to permit 114 Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours different kinds of part-time schedules. It is therefore unlikely that, had Congress intended to prohibit part-time employment other than part-time career employment as defined in the Act, it would have done so—only by implication—in this part of the Act. With that admonition in mind, we consider the Act’s provisions regarding retirement, life insurance, and health benefits. a. The Act first addresses retirement benefits. Before the Act became law, 5 U.S.C. § 8347(g) stated that the Civil Service Commission “may exclude from [retirement benefits] an employee or group of employees in or under an Executive agency whose employment is temporary or intermittent.” 5 U.S.C. § 8347(g) (1976). The Act amended this subsection by adding a sentence stating that the Commission (now OPM) “may not exclude any employee who occupies a position on a part-time career employment basis.” Act § 4(a). OPM contends that this amendment “demonstrates congressional intent to address benefits coverage for all part-time employees.” OPM Memorandum at 5 n.2. It is not clear, however, why that is so. The amendment simply “ensure[s] that employees employed under a part-time career employment program may not be excluded from civil service retirement coverage.” H.R. Rep. No. 95-932, at 12; see S. Rep. No. 95-1116, at 18 (same). The amendment is thus entirely consistent with the view that the Act seeks to encourage part-time career employment—in this case, by extending to part-time career employees a special guarantee of retirement benefits—without necessarily prohibiting alternative forms of part-time employment. Several other provisions of the Act similarly favor part-time career employees, including the requirement that agencies establish programs exclusively to promote part-time career employment, 5 U.S.C. § 3402(a)(1), the provision altering the way only part-time career employees are counted for purposes of personnel ceilings, id. § 3404, and the Act’s stated purpose of “provid[ing] increased part-time career employment opportunities,” Act § 2(b). 6 6 Moreover, the effect of this amendment was quite limited. The Act expressly provides that part-time career employment “does not include employment on a temporary or intermittent basis.” 5 U.S.C. § 3401(2). As a result, there was no need for Congress to 115 39 Op. O.L.C. 99 (2015) b. The Act’s second benefits provision addresses life insurance. Prior to the Act, 5 U.S.C. § 8716(b) stated that the Civil Service Commission “may exclude an employee” from receiving life insurance benefits “on the basis of the nature and type of his employment or conditions pertaining to it, such as short-term appointment, seasonal, intermittent or parttime employment, and employment of like nature.” 5 U.S.C. § 8716(b) (1976) (emphasis added). In the Act, Congress amended this provision by striking “part-time” and adding a new paragraph stating that the Commission (now OPM) may not exclude “an employee who is occupying a position on a part-time career employment basis” from receiving life insurance benefits. Act § 4(b). OPM argues that this provision supports its interpretation of the Act in two ways. First, OPM contends that it would have been illogical for Congress to prevent it from excluding part-time career employees from life insurance coverage without granting a similar protection to other parttime employees. OPM Memorandum at 5. But as we have just explained, the Act was intended to increase part-time career employment, and it favors that type of employment in a number of different ways. It therefore would be neither surprising nor irrational if Congress favored part-time career employees by granting them a special entitlement to life insurance benefits that it did not extend to other part-time employees. Second, OPM argues that there would have been no reason for Congress to delete “part-time” from section 8716(b) if agencies could still employ (and thus still exclude from life insurance coverage) part-time employees who were not part-time career employees. OPM Memorandum at 5. Although it is not entirely clear why Congress amended section 8716(b) in the manner it did, there is at least one plausible reason why Congress might have removed the reference to “part-time” employment in section 8716(b) even if agencies could continue to employ part-time employees not covered by the Act. Removing this phrase eliminated any except part-time career employment from 5 U.S.C. § 8347(g), which permitted the exclusion from retirement benefits of only “temporary or intermittent” employees. See H.R. Rep. No. 95-932, at 12 (acknowledging this point); S. Rep. No. 95-1116, at 18 (same). Similarly, there was no need to clarify that OPM could not exclude other parttime employment that is not temporary or intermittent. 116 Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours inconsistency between the statement that OPM “may not exclude . . . parttime career employ[ees]” and the statement that it “may exclude . . . parttime employ[ees],” a broader category that seemingly would include parttime career employees. At the same time, this amendment continued to permit OPM to exclude employees from life insurance benefits “on the basis of the nature and type of [their] employment,” thus allowing the agency to deny benefits to part-time employees not covered by the Act (since theirs is a “type” of employment). 5 U.S.C. § 8716(b) (2012); cf. 5 C.F.R. § 870.302(b)(4)–(8) (2015) (relying on this provision to exclude employees paid “$12 a year or less,” employees paid on a “contract or fee basis,” “Senate restaurant employee[s],” and other such categories from life insurance benefits). Of course, Congress could have accomplished this result in other ways, such as by permitting OPM to exclude an employee from life insurance benefits on the basis of “part-time employment other than part-time career employment.” But the fact that “Congress could have accomplished the same result by phrasing the statute differently” does not provide a basis for reading unstated limitations into its text. United States v. Aguilar, 515 U.S. 593, 604 (1995). c. The Act’s third benefits provision concerns health insurance. Much like the retirement and life insurance provisions, this provision begins by clarifying that OPM may not exclude “an employee who is occupying a position on a part-time career employment basis” from receiving health benefits. Act § 4(c)(1) (codified at 5 U.S.C. § 8913(b)(3)). OPM contends that this amendment “demonstrates congressional intent to address benefits coverage for all part-time employees.” OPM Memorandum at 5 n.2. For the same reasons we have just given, however, we do not agree. Congress may have intended to grant part-time career employees a protection to which other part-time employees are not entitled, a goal that would be fully consistent with the purpose and structure of the statute. The health insurance benefits provision goes on to provide that employees “occupying a position on a part-time career employment basis” shall receive health benefits in an amount prorated to the proportion of the full workweek that they work. Act § 4(c)(2)(A). OPM makes a stronger argument based on this portion of the provision. Neither the Act nor any other statute similarly prorates health benefits for other part-time employ117 39 Op. O.L.C. 99 (2015) ees. OPM thus argues that the Act would result in an anomaly if agencies could employ part-time employees outside of the Act’s definition of parttime career employment: Whereas part-time career employees would receive prorated health benefits, other part-time employees would be eligible for either full health benefits or no health benefits at all. OPM Memorandum at 3 & n.1. OPM asserts that this system would be inconsistent with Congress’s goal of “providing appropriate benefits to parttime employees” and of “limiting Government obligations commensurate with the number of hours in the reduced work schedule of part-time employees.” Id. at 3. We acknowledge that it would seem somewhat anomalous for Congress to have prorated health benefits for employees in the part-time career employment program it was trying to promote while failing to do so for other part-time employees. But the Supreme Court has cautioned that it “does not revise legislation . . . just because the text as written creates an apparent anomaly as to some subject it does not address.” Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2033 (2014). And here, the anomaly OPM identifies is neither particularly serious nor inexplicable. Congress has allowed a similar anomaly to exist in other circumstances by declining to prorate health benefits for seasonal, intermittent, and short-term workers and thus putting OPM to the same choice of offering those less-than-full-time employees either full health benefits or no benefits at all. See 5 U.S.C. § 8906(b) (prescribing the health benefits to which eligible employees are entitled); id. § 8913(b) (permitting OPM to exclude such employees from health benefits). Moreover, the legislative history indicates that Congress prorated health benefits for part-time career employees for a reason that was inapplicable to other part-time employees. The version of the Act initially passed by the House would have granted full health benefits to part-time career employees. See H.R. 10126, 95th Cong. § 4(c) (as passed by House, Mar. 13, 1978). The relevant Senate committee, however, observed that these benefits “comprised the major part of the price tag for the House-passed bill” and expressed concern that “the public [would] accept” the Act only if it held “the cost of government constant.” S. Rep. No. 95-1116, at 12. The Senate therefore amended the bill to provide that health benefits for parttime career employees “would be prorated according to the number of hours worked.” Id.; see S. 518, 95th Cong. § 4(c)(2)(A) (as passed by Senate, Aug. 25, 1978); see also 124 Cong. Rec. 30,968 (1978) (state118 Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours ment of Rep. Schroeder) (House sponsor of the Act stating that she agreed with the Senate amendment because it “would save money”). This history suggests that Congress did not enact the proration provision to establish a general principle that government obligations should be “commensurate with the number of hours” worked, as OPM contends. OPM Memorandum at 3. Rather, it enacted the proration provision as part of a compromise designed to ensure that the Act would win public acceptance. 7 The health insurance benefits provision of the Act also states that the Act’s proration of health benefits does not apply to “any employee serving in a position on a part-time career employment basis on the date of the enactment of this Act.” Act § 4(c)(2)(B). OPM contends that this provision shows that Congress “intended to bring all types of part-time employment under [the Act’s] coverage” because it indicates that employees hired prior to the date of the Act’s enactment can qualify as part-time career employees. OPM Memorandum at 4 (emphasis added). We do not think that follows. The fact that part-time employees hired before the Act can fall within the Act’s definition of “part-time employment” provides no basis to conclude that Congress foreclosed part-time employment outside that definition. Nor is it relevant that the provision applies only to part-time career employees. The Act did not alter health benefits for parttime employees who fall outside the Act’s definition, so there was no need to grandfather benefits for such employees. In sum, the Act’s principal provisions would work as Congress intended under either possible reading of the Act, and the Act’s miscellaneous benefits provisions do not provide any strong indication that Congress intended to foreclose all part-time employment not covered by the Act. 7 In its estimate of the bill’s costs, the Senate report does not contemplate any savings to the government from the elimination of part-time employees who fall outside the Act. See S. Rep. No. 95-1116, at 19–21. If the second reading of the Act were correct, then the Senate bill would have resulted in substantial financial savings to the government by eliminating its obligation to pay full health benefits to existing part-time employees working less than 16 or more than 32 hours per week. The drafters’ failure to consider that possibility—notwithstanding their close attention to other ways the Act might generate financial savings, see id. at 20 (identifying possible savings resulting from reduced enrollment in health plans by part-time career employees)—suggests that the drafters did not believe that the Act would prohibit part-time employment not covered by the Act. 119 39 Op. O.L.C. 99 (2015) The Act’s structure is thus consistent with either possible interpretation of the statute. 4. We turn next to the legislative history of the Act generally. Both the House and Senate committee reports open by stating that “[t]he purpose of [the Act] is to encourage the use of part-time career employment in the Federal government by requiring each agency to establish a program to provide for increased part-time career employment opportunities.” S. Rep. No. 95-1116, at 1; H.R. Rep. No. 95-932, at 1. Similarly, each committee report discusses at length the concern that federal agencies “lagged far behind the private sphere in providing and improving part-time employment opportunities.” S. Rep. No. 95-1116, at 3; see id. at 3–12 (discussing the scope of this problem); H.R. Rep. No. 95-932, at 2–5, 8 (similar). These discussions are consistent with the Act’s statements that its purpose is to “provide increased opportunities for” and “promote” part-time career employment. Act § 2(b); 5 U.S.C. § 3402(a)(1). And they tend to support the view that Congress intended to encourage part-time career employment but not prohibit alternative forms of part-time employment. OPM identifies two passages from the House and Senate reports that it contends support the conclusion that Congress intended to redefine parttime employment to include only employment of 16 to 32 hours per week. See OPM Memorandum at 2–3. The first passage OPM identifies appears in the House report. In explaining the Act’s definition of part-time career employment, that report says: This legislation defines “part-time career employment” as employment of 16 to 32 hours per week, and does not include temporary or intermittent employment. Its aim is to encourage the hiring of truly part-time employees, in contrast to the current practice of suing [sic] employees working up to 39 hours per week to skirt personnel ceilings. H.R. Rep. No. 95-932, at 7. OPM argues that this passage shows that the Act’s drafters “inten[ded] that part-time employment be limited to hours substantially less than 40 hours per week.” OPM Memorandum at 2. Although that inference is plausible, it is not the only possible reading of the relevant language. The passage says that the Act aims to “encourage 120 Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours the hiring of truly part-time employees.” H.R. Rep. No. 95-932, at 7 (emphasis added). Even if the drafters believed that employees who do not work 16 to 32 hours per week are not “truly part-time,” the passage states that the drafters’ method of promoting “part-time career employment” under the Act was by encouragement, not mandate. Moreover, the passage specifically disapproves of the use of “employees working up to 39 hours per week to skirt personnel ceilings,” id. (emphasis added), and under any interpretation, the Act eliminates the incentive to engage in that practice by changing the manner in which part-time career employees are counted for purposes of personnel ceilings, see 5 U.S.C. § 3404; S. Rep. No. 95-1116, at 16–17. The second passage OPM cites appears in a section of the Senate report discussing the definition of part-time career employment contained in the Senate’s version of the Act. The passage begins by explaining that the Senate bill “defines the term[] . . . ‘part-time career employment’ for the purposes of new subchapter VIII . . . to mean part-time employment of 10 hours, 20 hours, and 30 hours a week.” S. Rep. No. 95-1116, at 13. It goes on to acknowledge that this “approach to the definition of part-time career employment differs from the approach taken in the House.” Id. at 14. The passage then states: The administration contends that part-time employment should be defined as anything less than 40 hours per week. The committee disagrees because such a definition would make possible the current arrangement by which those individuals defined as working part-time for the Federal Government include many working 35 to 39 hours per week. In order for the legislation to have an impact, the committee shares the view of the House that part-time employment must be defined so that the jobs created entail significantly less than 40 hours of work per week. Id. OPM contends that this passage shows that Congress intended to “limit[] part-time employment” to “work schedule[s] [of ] significantly less than 40 hours.” OPM Memorandum at 3. That reading is reasonable; it draws support from the drafters’ statement of disapproval of the “arrangement by which those individuals defined as working part-time for the Federal Government include many working 35 to 39 hours per 121 39 Op. O.L.C. 99 (2015) week,” and their reference to the definition of “part-time employment,” rather than “part-time career employment,” S. Rep. No. 95-1116, at 14. But it is also reasonable to read this passage as stating that the drafters intended the Act to encourage only part-time employment falling within the Act’s definition of part-time career employment. In support of this reading, the passage says that the drafters intended to ensure that “the jobs created entail significantly less than 40 hours of work per week,” id. (emphasis added)—a goal the Act achieves by limiting the Act’s definition of “part-time career employment” to employees working between 16 and 32 hours per week and requiring each agency to “establish and maintain a program for part-time career employment,” 5 U.S.C. § 3402(a)(1). Moreover, the passage’s reference to “part-time employment” may simply have been an imprecise shorthand for “part-time career employment.” The drafters used the same shorthand elsewhere in the Senate report, even where they clearly intended to refer only to parttime career employment; for instance, in two places the report states that the Act entitles “current personnel working part-time” to receive full health benefits, S. Rep. No. 95-1116, at 12 (emphasis added); see id. at 2 (similar), even though the Act grants that entitlement only to personnel working “on a part-time career employment basis on the date of the enactment of this Act,” Act § 4(c)(2)(B) (emphasis added), and the drafters were well aware that “many” part-time employees employed on the date of the Act’s enactment were not part-time career employees, S. Rep. No. 95-1116, at 14. In addition, the relevant passage opens by referring to the manner in which the Act “defines the term[] . . . ‘parttime career employment’ for the purposes of new subchapter VIII,” and goes on to refer to the Act’s “definition of part-time career employment.” Id. at 13–14. As a result, we conclude that the legislative history of the Act is ambiguous with respect to the question at hand. Some statements in the House and Senate reports support the first possible interpretation of the Act, while others might (but need not) be read to support the second interpretation. Because “the authoritative statement” of a statute’s meaning is “the statutory text, not the legislative history,” this equivocal evidence of congressional intent bears little weight in construing the Act. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005); see Milner v. Dep’t of Navy, 562 U.S. 562, 572 (2011) (“We will 122 Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours not . . . allow[] ambiguous legislative history to muddy clear statutory language.”). 5. Finally, we examine the context in which the Act was drafted and its “place in the overall statutory scheme.” Roberts v. Sea-Land Servs., Inc., 132 S. Ct. 1350, 1357 (2012) (quoting Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989)). a. We begin by considering the Act’s effect on part-time employment arrangements that existed at the time of its enactment. The first possible interpretation of the Act would not appear to have any significant adverse effects on preexisting part-time employment arrangements. Under that interpretation, agencies would retain their authority to schedule part-time employees as they see fit, and there would be no disruptive or improbable effects on preexisting employees. The second interpretation of the Act, in contrast, would lead to two unlikely and disruptive consequences, which themselves could be avoided only by significantly straining the Act’s text. First, if the Act prohibited all part-time employment falling outside of its definition, then the Act seemingly would have made it unlawful for agencies to continue to employ part-time employees already working more than 32 hours per week. Congress was aware that agencies employed numerous such employees when the Act was enacted. See S. Rep. No. 95-1116, at 10 (stating that “the vast majority” of new part-time employees worked between 35 and 39 hours per week); H.R. Rep. No. 95-932, at 4 (stating that “the tendency is to hire 39 hour per week ‘part timers’”). Yet nothing in the text or history of the Act indicates that Congress contemplated that agencies would need to terminate or reschedule all of those employees—an omission that is particularly notable given that Congress showed solicitude for other employees potentially affected by the Act’s provisions. See 5 U.S.C. § 3403(a) (prohibiting agencies from abolishing positions to make them available to part-time career employees); id. § 3403(b) (prohibiting agencies from requiring full-time employees to accept part-time employment); Act § 4(c)(2)(B) (grandfathering health benefits for preexisting part-time 123 39 Op. O.L.C. 99 (2015) career employees). Congress’s silence on this subject strongly suggests that Congress did not intend to proscribe part-time employment not within the Act’s definition. Cf. Chisom v. Roemer, 501 U.S. 380, 396 n.23 (1991) (“Congress’ silence in this regard can be likened to the dog that did not bark.”). OPM attempted to mitigate this severe consequence of its interpretation when it promulgated regulations concerning the Act in 1979. In the preamble to those regulations, OPM—applying its understanding of the Act—asserted that the Act’s “prohibition” on the employment of part-time employees working 33 to 39 hours per week “d[id] not apply” to anyone employed prior to April 8, 1979. 44 Fed. Reg. at 57,379. But OPM did not cite any statutory basis for this assertion, and we have identified none. Second, if the Act offered the exclusive definition of part-time employment for federal employees, then the statute would prohibit not only part-time employment of more than 32 hours per week, but also part-time employment of less than “16 . . . hours a week.” 5 U.S.C. § 3401(2). Yet as OPM observed, there is no evidence—even in the legislative history— that Congress “inten[ded] to end the practice of employing” part-time employees who work 1 to 15 hours per week. 44 Fed. Reg. at 57,380. Accordingly, OPM promulgated a regulation stating that agencies could continue to permit schedules of 1 to 15 hours per week “under the authority provided in 5 U.S.C. 3402(a)(3).” 5 C.F.R. § 340.202(b). But this exception too lacks a firm basis in the Act’s text. Section 3402(a)(3) provides that “[r]egulations established under” section 3402(a)(1) “may provide for such exceptions as may be necessary to carry out the mission of the agency.” 5 U.S.C. § 3402(a)(3). The “[r]egulations established under” section 3402(a)(1), however, are ones that “establish and maintain a program for part-time career employment” by setting various procedures for establishing, reviewing, and setting goals and timetables for the creation of part-time career employment positions. Id. § 3402(a)(1). Section 3402(a)(3) thus appears to permit exceptions only to the various procedures that constitute an agency’s part-time career employment program. See S. Rep. No. 95-1116, at 15 (“Paragraph (3) provides that agency regulations establishing part-time career employment programs may provide for such exceptions to such programs as may be necessary to carry out the mission of the agency.” (emphasis added)); H.R. Rep. No. 95-932, at 10 (same). It is doubtful that an exception altering the defini124 Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours tion of “part-time career employment” falls within that authority.8 OPM’s interpretation of the Act would therefore either compel a result that Congress apparently did not intend (elimination of part-time schedules of less than 16 hours per week) or require a significant expansion of the Act’s text to avoid that result. b. We next consider three potentially relevant statutes enacted subsequent to the Act. First, as discussed above, a few weeks before the Act’s passage, Congress enacted a statute establishing a three-year experimental program “to test . . . compressed schedule[s]” that defined a compressed schedule for a “part-time employee” as “a biweekly basic work requirement of less than 80 hours which is scheduled for less than 10 workdays.” Pub. L. No. 95-390, §§ 201(1)(B), 202(a). Three years later, Congress made this program permanent by enacting the Federal Employees Flexible and Compressed Work Schedules Act of 1982, Pub. L. No. 97-221, 96 Stat. 227 (codified as amended at 5 U.S.C. § 6120 et seq.). In this new statute, Congress reenacted without change the prior definition of a compressed schedule. 5 U.S.C. § 6121(5)(B). Congress also amended the Act’s definition of “part-time career employment” to state that it includes part-time employment of “32 to 64 hours during a biweekly pay period in the case of a flexible or compressed schedule under subchapter II of chapter 61 of this title.” Pub. L. No. 97-221, § 3. This pair of definitions in the 1982 statute indicates that the enacting Congress did not believe that all part-time employees were required to work between 16 and 32 hours per week. The statute provides that agencies may permit a “parttime employee” to work “less than 80 hours” over a biweekly period, or less than 40 hours in a single workweek. 5 U.S.C. § 6121(5)(B); see id. § 6127(a) (authorizing agencies to “establish programs which use a 4-day workweek or other compressed schedule”). At the same time, it provides that agencies may permit a “part-time career employ[ee]” to work only “32 to 64 hours” over a biweekly period, or 16 to 32 hours in a single workweek. Id. § 3401(2) (emphasis added). If Congress believed that all part-time employees were part-time career employees, then these defini8 As noted above, we do not address whether OPM might have authority under other statutes to limit or expand the scope of part-time employment. 125 39 Op. O.L.C. 99 (2015) tions should have been the same—all such employees should have been permitted to work only 32 to 64 hours in a biweekly period. This statute thus appears to reflect Congress’s belief that, subsequent to the Act, agencies could continue to employ part-time employees who worked more than 32 hours per week. The fact that Congress “seems clearly to have contemplated” such conduct is “entitled to significant weight” in interpreting the Act. Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 595–96 (1980); see Almendarez-Torres v. United States, 523 U.S. 224, 237 (1998) (describing circumstances in which later-enacted laws may inform the interpretation of earlier provisions, including when there is “direct focus by Congress upon the meaning of the earlier enacted provisions”). 9 A second potentially relevant statute amended 5 U.S.C. § 6323, a provision granting “permanent or temporary indefinite” employees the right to accrue leave for military purposes “at the rate of 15 days per fiscal year.” 5 U.S.C. § 6323(a)(1). In 1980, Congress added a new subsection to this provision stating that employees “employed on a part-time career employment basis” would accrue military leave at a rate prorated to the portion of the full workweek they work. Pub. L. No. 96-431, § 1, 94 Stat. 1850, 1850 (codified at 5 U.S.C. § 6323(a)(2)). OPM argues that this amendment supports its reading of the Act, presumably on the theory that—as with the Act’s health benefits provision—it would be anomalous if this statute prorated leave for part-time career employees while entitling other part-time employees to full military leave. OPM Reply at 4. But we think this argument rests on a mistaken premise. Prior to the enactment of this statute, the Comptroller General had consistently interpreted section 6323 and its predecessor, 10 U.S.C. §§ 371–371a, to entitle part-time employees to no military leave. See William P. Wisinger, 59 Comp. Gen. 9 OPM argues that this discrepancy is the result of “inartful drafting”: It speculates that the “less than 80 hours” language is an “oversight” that Congress inadvertently included in this statute as a “remnant” of the 1978 flexible and compressed schedules statute. OPM Reply at 1–3. We do not think this theory is persuasive. Congress did not simply copy the text of the 1978 flexible and compressed schedules statute without accounting for the passage of the Act. On the contrary, it expressly amended the Act’s definition of “parttime career employment” to specify the hours that constituted a compressed schedule for part-time career employees. Congress’s failure to similarly amend the definition of “compressed schedule” for all part-time employees thus appears to have been a deliberate choice, not an oversight. 126 Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours 365, 365 (1980) (citing prior decisions and legislative history supporting this view). In 1980, Congress concluded that this longstanding interpretation ran “counter to the Federal Employees Part-time Career Employment Act” as applied to part-time career employees and therefore extended the military leave statute to part-time career employees on a prorated basis. H.R. Rep. No. 96-1128, at 3 (1980). At least against the legal backdrop as Congress understood it, 10 this statute thus granted part-time career employees a benefit to which other part-time employees would not be entitled—a result, as we have said, that is entirely consistent with the Act’s structure and purpose. See supra Part II.C.3.a. A third statute referencing the Act was enacted in 1991. That statute, the Department of Veterans Affairs Health-Care Personnel Act of 1991, Pub. L. No. 102-40, 105 Stat. 187, authorizes the Secretary of Veterans Affairs to make appointments to the Veterans Health Administration without regard to a number of civil service requirements. Id. § 401(b)(2) (codified at 38 U.S.C. §§ 7405(a), 7406(a)(1)); id. § 401(b)(3) (codified at 38 U.S.C. § 7425). As relevant here, the statute provides that the Act’s provisions “pertaining to part-time career employment” do “not apply to [covered] part-time appointments.” 38 U.S.C. § 7407(e). OPM argues that this exemption “demonstrat[es] that an exclusion was required to prevent” all part-time employees from being subject to the Act. OPM Reply at 4. But we do not think the statute supports such an inference. Congress often exempts classes of persons from requirements that apply to some but not all class members, including elsewhere in the Department of Veterans Affairs Health-Care Personnel Act itself. See, e.g., 38 U.S.C. § 7425(a) (exempting all employees appointed pursuant to the statute from requirements applicable only to the Senior Executive Service). Indeed, many of the “part-time appointments” authorized by this statute are required to be “temporary,” id. § 7405(d), (g)(1), and so would not be subject to the Act under any reading. See 5 U.S.C. § 3401(2) (stating that “‘part-time career employment’ . . . does not include employment on a temporary or intermittent basis”). Hence, this statute too is fully consistent with the view that the Act did not eliminate part-time employment outside of its definition of part-time career employment. 10 We express no view on whether the Comptroller General’s decisions are correct or whether part-time employees who fall outside the Act’s definition are eligible for military leave under 5 U.S.C. § 6323(a). 127 39 Op. O.L.C. 99 (2015) For these reasons, we think that the statutes enacted subsequent to the Act support the first reading of the statute. The Federal Employees Flexible and Compressed Work Schedules Act seems clearly to contemplate the existence of part-time employees who do not work between 16 and 32 hours per week, whereas the other two statutes we have considered are equally consistent with either the first or second reading of the Act. The context of the Act as a whole thus bolsters the conclusion that it does not prohibit part-time employment that falls outside its definition. * * * * * In sum, several significant considerations support the conclusion that the Act does not limit agencies’ preexisting authority to schedule parttime employees to work more than 32 hours per week. The Act’s plain text and stated purpose do not purport to limit agencies’ preexisting authority; its principal provisions would work as Congress intended if agencies retained that authority; and a contrary conclusion would lead to improbable results and undermine a later-enacted statute. In contrast, a conclusion that the Act prohibits all part-time employment of more than 32 hours per week would find support only in potential inferences drawn from the Act’s ancillary benefits provisions and in ambiguous statements contained in the Act’s legislative history. Accordingly, we think that the Act is best read not to limit agencies’ preexisting authority to hire parttime employees and to schedule them for regular workweeks of 33 to 39 hours. III. For the foregoing reasons, we conclude that the statutes governing federal employment permit part-time schedules of 33 to 39 hours a week. As noted above, we do not address whether OPM has authority, independent of the Act, to prohibit agencies from offering such schedules or whether agencies may elect (or require their components) not to offer such employment. Nor do we address what administrative steps, if any, would be required before CRT could begin authorizing part-time employees to work those schedules. BRIAN M. BOYNTON Deputy Assistant Attorney General Office of Legal Counsel 128

Write a legal research memo on the following topic.

Liability of the United States for State and Local Taxes on Seized and Forfeited Property In c iv il fo rfe itu re p ro c e e d in g s (u n d e r 21 U S C § 8 8 1 ), th e U n ite d S ta te s is o b lig a te d to pay lie n s for s ta le a n d lo cal ta x e s a c c ru in g a fte r the c o m m is s io n o f th e o ffe n se le a d in g to fo rfe itu re an d b e fo re th e e n try o f a ju d ic ia l o rd e r o f fo rfeitu re, if th e lie n -h o ld e r e sta b lis h e s, b e fo re the c o u rt e n te rs the o r d e r o f fo rfe itu re , th a t it is an in n o cen t o w n e r o f the in te re s t it a sse rts In c rim in a l fo rfe itu re p ro c e e d in g s (u n d e r 18 U S C . § 1963 o r 21 U S C . § 8 53), the U n ite d S ta te s m ay n o t p a y s u c h h e n s b e c a u s e state and lo cal tax lie n -h o ld e rs a re not b o n a fide p u rc h a se rs for valu e o f th e in te re s ts th e y w o u ld a sse rt, and th e re fo re d o n o t c o m e w ith in a n y a p p lic ab le e x c e p tio n to a s ta t­ ute th a t, u p o n e n try o f a c o u r t’s final o rd e r o f fo rfe itu re , v e sts full o w n e rsh ip re tro a c tiv e ly in the U n ite d S ta te s as o f th e d a te o f th e offen se. O ctober 18, 1993 M e m o r a n d u m O p in io n f o r t h e D i r e c t o r a n d C h i e f C o u n s e l E x e c u t iv e O f f i c e f o r A s s e t F o r f e i t u r e You have asked us to reconsider our opinion that property seized by and for­ feited to the United States is not subject to state or local taxation for the period between the com m ission of the offense that leads to the order of forfeiture and the entry o f the order o f forfeiture. See Liability o f the United States fo r State and Local Taxes on Seized and Forfeited P roperty, 15 Op. O.L.C. 69 (1991) (“Harrison M em orandum ”). In light of the Supreme C ourt’s decision in United States v. 92 Buena Vista A ve., 507 U.S. 111 (1993), we partially reverse our opin­ ion. B ecause states and localities may not tax federal property (absent express con­ gressional authorization),1 the time at which ownership o f forfeited property passes to the United States and the extent of the ownership interest that passes to the United States determ ine whether state and local taxes are owed. In many property transactions, the time and the extent o f transfer o f ownership are unambiguous and independent issues. In cases of transfers of ownership under the federal forfeiture statutes, however, the answ er to the question of when ownership is transferred has been a m atter o f dispute, and of great consequence for the extent of the interest transferred. T he Harrison M emorandum expresses the Justice D epartm ent’s traditional view that title vests in the United States at the time of the offense. This view is based on 1 See, e g , U n ited S ta te s v C ttx oj D etroit, 355 U S 466, 4 6 9 (1958) ( “ a State cannot constitutionally levy a tax d irectly against the G overnm ent o f the U nited States o r its property w ithout the consent o f C o n ­ gress"), M 'C u llo ch v. M a ryla n d , 17 U S (4 W h eat.) 3 16 (1819). 104 Liability o f U.S. fo r State and L ocal Taxes on Seized and F orfeited P roperty an interpretation of the “relation back” doctrine, which provides that a judicial or­ der of forfeiture retroactively vests title to the forfeited property in the United States as of the time of the offense that leads to forfeiture, not as o f the time of the judicial order itself. See 21 U.S.C. § 881(h) (“[a]ll right, title, and interest in prop­ erty [subject to forfeiture] shall vest in the United States upon commission of the act giving rise to forfeiture . . . .”); 18 U.S.C. § 1963(c), 21 U.S.C. § 853(c) (substantially identical to quoted language from 21 U.S.C. § 881(h)). Under the Departm ent’s traditional interpretation, title in forfeited property vests in the fed­ eral government at the time of the offense. The date o f the judicial order o f for­ feiture is not significant. From the date of the offense, states and other parties are barred from acquiring interests in the property from the owner whose interests are forfeited to the United States. See In re One 1985 Nissan, 889 F.2d 1317, 1319-20 (4th Cir. 1989); Eggleston v. Colorado, 873 F.2d 242, 245-48 (10th Cir. 1989), cert, denied, 493 U.S. 1070 (1990) (cases decided before Buena Vista and consis­ tent with the Harrison Memorandum). The Harrison M emorandum considers and rejects several possible grounds for limiting the operation of the relation back doctrine and requiring payment of state and local tax liens for the period between the offense and the forfeiture order. The two grounds of principal concern here are the “innocent ow ner” defense in the civil drug forfeiture statute, see 21 U.S.C. § 881(a)(6)2, and the “bona fide purchaser” defense in the criminal drug forfeiture statute, see 21 U.S.C. § 853(c), and in the forfeiture provision of the RICO statute, see 18 U.S.C. § 1963(c). The Harrison Memorandum concludes that these defenses do not protect a state or locality (or anyone else) who innocently acquires a property interest after the time o f the of­ fense. The Supreme C ourt’s decision in Buena Vista forces us to reconsider this conclusion. We conclude that the Harrison M em orandum ’s conclusion concerning the innocent owner defense must be reversed, but that the Harrison M em orandum ’s conclusion regarding the bona fide purchasers defense is correct (although this latter conclusion is less certain than the Harrison M emorandum indicates and we reach it through an analysis different from that set forth in the Harrison M em oran­ dum). I. The civil drug forfeiture statute provides that “no property shall be forfeited . . . , to the extent of the interest of an owner, by reason o f any act or omission es­ tablished by that owner to have been committed or omitted without the knowledge or consent of that owner.” 21 U.S.C. § 881(a)(6). The Harrison Memorandum ' T he conclusions w ith regard to § 881(a)(6), the innocent o w n er provision im m ediately at issue in B uena Visia and applicable to all “ things o f value" traceable to an exchange for a controlled substance also apply to § 881(a)(7), w hich co n tain s a nearly identical innocent ow ner provision applicable to real properly used in a drug offense See notes 3, 7, injra 105 Opinions o f th e Office o f L egal C ounsel accepted that “owner” could include a state or locality holding a tax lien on the property. See H arrison M emorandum, 15 Op. O.L.C. at 72 . The Memorandum concluded, however, that this “innocent ow ner” provision does not apply to as­ serted property interests that arise after the tim e of the offense because, as of the mom ent o f the offense, the property belongs (by operation of the relation back doctrine) to the United States, and not to the person from whom a third party inno­ cently acquires an interest. W e conclude, consistent with the Harrison M emorandum, that a state or locality holding a tax lien can be an “owner” as that term is defined in the civil forfeiture statute’s innocent ow ner provisions. The broad language of the statute — “[a ] ll. . . things o f value” and “ [a]ll real property, including any right, title and interest” — provides no reason to exclude a tax lien-holder from the definition of “owner.” 21 U.S.C. § 881(a)(6), (7). The legislative history urges a broad reading.3 And the courts have followed, sometimes explicitly, the path suggested by Congress.4 The “innocence” requirem ent o f an innocent ow ner defense would seem to be easy to satisfy in most cases. Like an innocent donee or purchaser, a state or locality holding a tax lien generally has obtained its interest without knowledge of the of­ fense giving rise to the forfeiture. The Harrison M em orandum ’s further conclusion with regard to the innocent owner defense, however, cannot survive the ruling in Buena Vista. The plurality and concurring opinions reject the interpretation of the relation back doctrine set forth in the Harrison M emorandum, and agree that the innocent owner defense is available to persons who acquire interests in forfeitable property after the com m is­ sion o f the offense that rendered the property subject to forfeiture. The opinions differ only as to the reading of the statute that leads to this result. The plurality and the concurrence both analyze the common law doctrine of re­ lation back as transferring ownership of forfeited property retroactively to the date of the offense, but only upon the entry of a judgm ent of forfeiture. Until a court issues such a judgm ent, this retroactive vesting of ownership in the United States does not occur, and all defenses to forfeiture that an owner of the property other­ wise may invoke will remain available. Thus, a person who has acquired an inter­ est in the property may raise any such defense in a forfeiture proceeding. If that 3 S e e Jo in t E xplanatory S tatem en t of Titles II and III o f Pub L No 95-633, 95th C ong , 2d Sess. (1978), r ep rin te d in 1978 U S C C A N 9522 (in § 8 8 1 (a)(6 ), “ [t]he term ‘o w n er' should be broadly interpreted to include any person w ith a recognizable legal o r equitable interest in the property seized ), see also S. Rep. No 98-2 2 5 , at 195, 215 (1984), reprinted in 1984 U .S .C C A N 3182, 3378, 3398 (describing § 881(a)(7) as, in effect, ex te n d in g § 88 1 (a)(6 ) to cover re a l property used in a drug offense but not acquired w ith pro­ ceeds o f p ro h ib ited d rug tran sactio n s) 4 See, e g ., U n ite d S ta tes v. 7 / 7 S. W oodw ard S t , 2 F 3d 529, 535 (3d C ir.1993) (citing legislative h is­ tory); U n ited S ta te s v 6 9 6 0 M ira jlo res Ave , 9 9 5 F.2d 1558, 1561 (11th C ir 1993) ("L ien holders have the right to assert th eir claim [s] o f innocent o w n ersh ip " u n d er § 881(a), as interpreted in B uena Vi,\ta); U nited Slates v' 6 1 0 9 G ru h b Rd., 886 F 2d 618, 625 n 4 (3d C ir 1989) (cited in Buena Vista and citing legislative history); see a lso U nited S ta te s i\ 2350 N W 187 S t . 9 9 6 F.2d 1141, 1144 (11th C ir 1993) (B uena Vista analysis o f § 8 8 1(a) innocent o w n er provisions assum ed to apply where purported innocent ow ner is local tax lien holder). 106 Liability o f U S. f o r State a n d Local Taxes on Seized an d F orfeited P roperty person prevails, a judgm ent of forfeiture will not vest (retroactively) ow nership of that property interest in the United States. Buena Vista, 507 U.S. at 125-27, 12830 (plurality opinion) 131-38 (Scalia, J., concurring). The plurality and the concurrence both conclude that the federal civil forfeiture statute is fully compatible with the common law, and that the statutory innocent owner clause provides a defense for a third party who innocently acquires owner­ ship of the property after the offense and before a judgm ent of forfeiture. The plu­ rality notes that § 881(h), which sets forth the relation back doctrine for the civil forfeiture statute, applies that doctrine only to “property described in subsection (a) o f this section.” Subsection (a)(6) excepts, from its description o f forfeitable prop­ erty, the property of an innocent owner. Therefore, in the plurality’s analysis, sub­ section (a) places the property of an innocent owner beyond the reach of the forfeiture and relation back provisions in subsection (h). See Buena Vista, 507 U.S. at 127-30. Accordingly, an ownership interest in forfeitable property that is transferred to an innocent person (after the offense giving rise to forfeiture) does not vest in the United States as of the time of the offense. Indeed, it does not vest in the United States at all. Interpreting the civil forfeiture statute as a more straightforward codification of common law doctrine,5 the concurrence reads the phrase, in subsection (h), ‘“ shall vest in the United States upon commission of the act giving rise to forfeiture’” as meaning “ ‘shall vest in the United States upon forfeiture, effective as of com m is­ sion of the act giving rise to forfeiture.’” Buena Vista, 507 U.S. at 134 (Scalia, J., concurring).6 The result, of course, is the same as under the plurality’s analysis: a property interest innocently acquired after the offense is not forfeited to the United States if an owner asserts the interest in a proper and timely way, before the entry o f a forfeiture judgment. In sum, we reverse the Harrison M emorandum’s conclusion that the innocent owner defense, set forth in 21 U.S.C. § 881(a), does not protect state and local claims for tax liabilities arising between the time of an offense rendering property subject to forfeiture and the issuance of a court order of forfeiture.7 3 The concurrence specifically rejects the p lu rality 's reading o f the phrase, in subsection (h), "property described in subsection (a)" as m eaning, in effect, “property forfeitable under subsection (a) ” T he co n cu r­ rence stresses that subsection (h) refers to '‘property d escrib ed in subsection (a)." not property d eem ed for­ feitable under subsection (a) Since subsection (a) describes property generally and does not declare that property that cannot be forfeited is not ' ’p ro p e rty ,' the “property described in subsection (a)* refers to all relevant property interests, including those o f innocent ow ners Buena Vista, 507 U S. at 133 (S calia, J , concurring) 6 The concurrence "ack n o w le d g e ^ ] that there is som e textual difficulty w ith th[is] interp retatio n ,'1 but argues, first, that the im precision im puted to the quoted language in subsection (h) is to be e xpected “ in a legal culture fam iliar with retroactive forfeiture" and, second, that the civil forfeiture statute as a whole, including subsection (d) and u s adoption o f forfeiture procedures applicable under 19 U.S C. 1602-1631, does not make sense if one rejects the c o n cu rre n ce 's reading o f subsection (h) (and the plurality s reading o f subsections (a) and (h)). B uena Vista, 507 U S at 134 (Scalia, J . concurring). 7 The local tax lien cases decided by low er courts since the Suprem e C ourt s decision in B uena Vista do not alter our conclusion In 2 3 5 0 N .W 187 S t , 996 F 2d 1141, the court vacated the ju d g m en ts in tw o cases in w hich the district courts had relied on the interpretation o f the relation back doctrine d escrib ed in the 107 Opinions o f the Office o f L eg a l C ounsel II. The two federal criminal forfeiture statutes addressed in the Harrison M em o­ randum do not contain an innocent owner defense. Those statutes, however, do provide protection for a “transferee [who] establishes in a hearing [to ‘am end’ an order o f forfeiture] that he is a bona fide purchaser for value of [the] property [subject to criminal forfeiture] who at the time of purchase was reasonably without cause to believe that the property was subject to forfeiture.” 21 U.S.C. § 853(c); 18 U.S.C. § 1963(c) (same). The Harrison M emorandum concluded that this statutory “bona fide purchaser” defense is not available to a state or locality as­ serting a lien for tax liability incurred after the offense that made the property sub­ ject to forfeiture. W e conclude, consistent with the apparent assumption of the Harrison M em o­ randum, that such tax liens are “property” or an “interest” in property under the two crim inal forfeiture statutes. Both statutes define property broadly, as including all “real property” and all “tangible and intangible personal property, including rights, privileges, interests, claims and securities.” 21 U.S.C. § 853(b); 18 U.S.C. § 1963(b) (same); see also 21 U.S.C. § 853(c), (n)(6); 18 U.S.C. § 1963(c), (1)(6) (forfeiture and bona fide purchaser defense provisions referring to “interest” in such property). The legislative history and the courts’ application of this statutory language also suggest a definition o f property interests broad enough to include state and local tax liens on real property.8 H a m so n M em orandum , and had granted sum m ary ju d g m e n t ag ain st a county invoking the innocent ow ner defense in 21 U .S.C . § 8 8 1 (a)(6), (7) to assert liens for properly taxes ow ed for som e o f the p en o d betw een an o ffen se giving rise to forfeiture and the en try o f a ju d g m en t o f forfeiture. The appellate court rem anded the cases for fu rth er co n sideratio n in light o f th e Suprem e C o u rt's d ecision in B uena Vista In U n ite d S ta tes v 7501 S W Virginia St., N o 9 2 -9 2 1 -B E (D O re Aug. 3, 1993), the district court held that a c o u n ty asserting a lien, for taxes accruing after the offense, in a forfeiture proceeding was an innocent ow ner un d er § 8 8 1 (a)(6), but that the relation b ack doctrine had vested the title in the U nited States as o f the date o f the o ffen se and therefore precluded p ay m en t o f the tax lien. T o support this conclusion, the court quoted the p lu ra lity ’s statem en t in Buena Vista that “ [o]ur d ecisio n d enies the G overnm ent no benefits o f the relation b ack d o ctrin e " Slip op. at 6 (quoting 507 U.S at 129). T he court has taken this quotation out of context, in terp retin g it as m eaning, in effect, “ o u r decision denies the G overnm ent no benefits o f the relation back d o c trin e as it had been understood, erro n eo u sly , in the case law that Buena Vista rejects ” T he district court sim p ly m isu n d erstan d s o r ignores the S u p rem e C o u rt's holding. T his m isinterpretation does not ap ­ pear to be w idely shared by courts applying th e Buena Vista analysis o f the relation back d o c tn n e in analo­ gous co n te x ts See, e.g , U nited States v D a cca rett, 6 F 3d 37, at 53-54 (2d C ir 1993); U nited States v 41741 N a t 7 Trails W ay, 989 F.2d 1089, 1091 (9th C ir. 1993); 2350 N .W 187 St., 996 F.2d 1141, 1144; U nited State* v. O ne 1990 L in co ln Town Car, 817 F. Supp. 1575, 1579-80 ( N D G a 1993). 8 S e e S. R ep No. 98 -2 2 5 , at 193, reprinted in 1984 U S C .C A N at 3376 (section enacting current 18 U S C § 1963(c) and 21 U .S C § 853(c) “allo w s the use o f crim inal forfeiture as an alternative to civil for­ feiture in all drug felony c ase s’*), id. at 211, rep rin ted in 1984 U .S.C C A N at 3394 (property defined as subject to crim in al fo rfeiture under 18 U S C . § 1963(a) and 21 U S C . § 853(a) is equivalent to property subject to civil fo rfeitu re un d er 21 U S C § 8 8 1 (a)), U nited S ta te s v. Reckm eyer, 836 F.2d 200, 205 (4th Cir. 1987) (u n secu red cred ito r w ho has reduced h is claim to ju d g m e n t and acquired a lien could seek an am end­ m ent to a fo rfeitu re o rder under 21 U S C § 853(n)); U n ited S ta tes v R obinson, 721 F. Supp. 1541, 1545 (D .R .I. 1989) (a leaseh o ld in terest ordinarily is a real p roperty interest w ithin the definition m 21 U.S C § 8 5 3 (b )), se e also U n ited S ta tes v M onsanto, 491 U S. 600, 6 0 6 -09 (1989) (noting breadth o f forfeitable property u n d e r 21 U S.C . § 853(a)) 108 L ia b ility o f U S fo r Slate a n d Local Taxes on Seized and F orfeited P roperty The Harrison Memorandum suggests two arguments — one based on the rela­ tion back doctrine and another based on the definition of bona fide purchaser — to support its conclusion that the bona fide purchaser defense does not extend to holders of property interests that consist o f liens for state and local taxes for the period after the offense and before a judgm ent of forfeiture. A. The Harrison M em orandum ’s central argument concerning the relation back doctrine addresses the bona fide purchaser defense no less than the innocent owner defense. See Harrison Memorandum, 15 Op. O.L.C. at 72. On the interpretation set forth in the Harrison Memorandum, the United States has owned the property since the com m ission of the offense giving rise to the criminal forfeiture, and no one, including a bona fide purchaser, can later acquire any interest from the former owner. Although the question is a closer one than in the civil forfeiture context, we conclude that the Supreme C ourt’s decision in Buena Vista rejects this argum ent as well.9 We recognize that the plurality’s holding is based on a reading o f the civil forfeiture statute (and its innocent owner provisions) and does not address the criminal forfeiture statutes (and their bona fide purchaser provisions). That hold­ ing also does not require the plurality to adopt the interpretation of the common law relation back doctrine that the opinion sets forth. Nonetheless, the plurality’s discussion of the common law doctrine makes clear that it agrees with the concur­ rence that the relation back doctrine vests ownership retroactively in the United States only upon entry of a final judgm ent of forfeiture. Under that reading, if a state or locality establishes that it is a “bona fide purchaser” of an interest in the property by virtue of a tax lien, and does so before a court orders forfeiture, the order of forfeiture will not extend to the lien-holder’s interest and, therefore, will not vest title to that interest in the United States.10 W e also recognize that the concurrence in Buena Vista suggests that the relation back doctrine precludes a bona fide purchaser defense under the criminal statutes where it allows an innocent owner defense under the civil statute. As the concur­ rence points out, the criminal forfeiture statutes establish a procedure by which a person asserting a bona fide purchaser defense raises that defense after the court has entered an order o f forfeiture. See 21 U.S.C. § 853(n); 18 U.S.C. § 1963(1). In contrast, the civil forfeiture process (on both the plurality’s and the concurrence’s 9 Cf. U nited S ta tes v H arry, 831 F Supp. 679, 686-87 (E D Iow a) (draw ing on B uena Vista d iscussion of innocent ow ners to resolve bona fide p u rch aser issue under the crim inal forfeiture statute) 10 This conclusion w ould follow rather sim ply from the C o u rt's analysis in Buena Vista w hen the state or locality asserts its bona fide purchaser defense at or before the proceedings in w hich the court issues an order o f forfeiture T he con clu sio n is less certain under the procedure set forth in the crim inal forfeiture statutes, which provides for assertio n o f bona fide purchaser claim s at a hearing held after the court issues an initial order o f forfeiture T he rem ainder o f this subsection addresses this issue 109 Opinions o f th e O ffice o f L egal C ounsel reading) contem plates that a person asserting an innocent owner defense will do so before the court enters an order o f forfeiture. As the concurrence sees it, in the former case, the court order already has vested title retroactively in the United States (effective as o f the date o f the offense) before the “transferee” asserts a claim to be a bona fide purchaser. In the latter case, however, the court will not yet have issued the order vesting title retroactively when the “owner” asserts an inno­ cent ow ner claim. (The concurrence argues that the civil statute’s use of the term “ow ner” and the criminal statutes’ use of “transferee” reflects this distinction and suggests its significance.) On this view, if a transferee’s claim to be a bona fide purchaser succeeds and the court am ends the order of forfeiture, the amendment does not void, retroactively, the initial retroactive vesting of title in the United States. The am endm ent to the initial order of forfeiture simply effects a new trans­ fer of title to the bona fide purchaser, leaving undisturbed the United States’ own­ ership from the time o f the offense to the time o f the amendment to the forfeiture order. See Buena Vista, 507 U.S. at 136 (Scalia, J., concurring). The Buena Vista concurrence fails to establish, however, that the criminal for­ feiture statutes’ bona fide purchaser defense does not protect liens for state and local tax liabilities incurred after the offense giving rise to the forfeiture. Only the concurrence advances the argument. The plurality does not join in it, and nothing in the dissenting opinion suggests that the dissenters would adopt the concurrence’s views. Further, the concurrence’s argum ent reads too much into the actual, multi-step procedures by which a court adjudicates a criminal forfeiture claim. It thereby overlooks — or confuses those procedures with — the more fundamental legal (and fictional) process through which a retroactive transfer o f ownership occurs. The better interpretation o f the criminal forfeiture statutes is that the procedures of entering an order of forfeiture, holding a hearing at which transferees assert claims to be bona fide purchasers, and am ending the order of forfeiture upon successful presentation o f such a claim are but phases in a single (if protracted) process for determ ining what property interest vests, retroactively, in the United States when the court enters its final, amended order of forfeiture. The entire process is the equivalent o f the single order of forfeiture in the civil context. This interpretation fits more easily with the statutory language, especially when that language is read in light of the discussion in Buena Vista of common law rela­ tion back doctrine. The criminal forfeiture statutes provide that title in property subject to forfeiture “shall be ordered forfeited to the United States unless the transferee establishes” that he is a bona fide purchaser for value, and that “the United States shall have clear title to [the] property” only “following the court’s disposition o f all petitions” filed by transferees asserting claims to be bona fide purchasers. 21 U.S.C. § 853(c), (n)(7); 18 U.S.C. § 1963(c), (1)(7) (emphasis added). Such language would seem to suggest that the United States never obtains title from a bona fide purchaser, not that the U nited States first obtains title and 110 L iability o f U S. f o r State an d Local T axes on Seized a n d F orfeited P roperty then must give it back. Only after the entry o f the final, amended order of forfei­ ture would ownership vest retroactively in the United States.11 This conclusion also avoids an incongruity that the concurrence’s interpretation would create: an innocent owner (under the civil statute) would owe state and lo­ cal taxes from the moment he or she acquired the property, but a bona fide pur­ chaser for value (under the criminal statutes) would not owe taxes from the time he or she acquired the property until the time the court amended the order o f forfei­ ture. Finally, the conclusion we reach also is consistent with the statutory distinction between “ow ner” and “transferee.” A person claiming to be a bona fide purchaser is nothing more than a transferee until he or she establishes to the court that he or she is a bona fide purchaser (whether the transferee does so after an initial forfei­ ture order, as the statute contemplates, or at some earlier stage). Only after the transferee has made this showing is he or she recognized as an owner (indeed, an innocent owner) of a particular type. Similarly, a person claiming to be an inno­ cent owner is recognized as an innocent owner only after he or she proves to the court that he or she meets the standards o f innocent ownership. Before that, such a person is, in the eyes of the court, merely a transferee. The civil forfeiture laws simply do not address or refer explicitly to those who assert, but have not yet es­ tablished, that they are innocent owners. For these reasons, we do not believe that the concurrence’s discussion o f the le­ gal significance of the differences between the civil and criminal forfeiture statutes (which, in any case, is unnecessary to its conclusions) is correct. B. The Harrison Memorandum also states that state and local tax authorities cannot “qualify as bona fide purchasers for value” under the criminal forfeiture statutes. Harrison M emorandum, 15 Op. O.L.C. at 72. The Memorandum does not set forth the basis for this conclusion. The Buena Vista plurality and concurrence have nothing to say about this issue and, thus, do not require a reversal o f the Harrison Memorandum. Although the matter is not free from doubt, we believe that the stronger argument is that state and local tax lien-holders are not “bona fide pur­ chasers.” 11 A lthough the statutory language does not fit perfectly w ith the interpretation adopted here, som ew hat im precise drafting concerning the sequence o f events leading to a retroactive vesting o f title is, as the B uena Vista concurrence points out, perhaps to be expected in a legal culture fam iliar with retroactive vesting See Buena Vista, 507 U S al 134. M oreover, the legislative history o f the crim inal forfeiture provisions also seem s to su pport the in te rp reta ­ tion set forth in this M em orandum . It refers to hona fide p u rch aser claim s, raised after the initial forfeiture order, as “ in essence, . . . challenges to the validity o f the o rder o f forfeiture," and, w hen successful, as ■‘render[ing] that portion o f the o rder o f forfeiture reaching [the bo n a fide p u rc h a se r's] interest in v a lid ” S Rep. No. 98-225, at 208, reprinted in 1984 U S C .C .A .N . at 3391 (em phasis added) 111 O pinions o f the O ffice o f L egal C ounsel The courts have not adopted a clear and uniform view of how to interpret “bona fide purchaser” under the criminal forfeiture statutes. See, e.g., United States v. Lavin, 942 F.2d 177, 182-89 (3d Cir. 1991) (bona fide purchaser acquires interest through volitional, advertent and, generally, commercial transaction; victim of em­ bezzlem ent acquired interest through unwitting and inadvertent tortious action of another and therefore was not a bona fide purchaser); Reckmeyer, 836 F.2d at 20608 (bona fide purchaser includes a general, unsecured creditor of defendant who gave value to defendant in arms’-length transaction with expectation that he would receive equivalent value in the future, and whose interest must have been in some part o f the forfeited property because debtor’s entire estate had been forfeited); cf. United States v. Campos, 859 F.2d 1233, 1237-38 (6th Cir. 1988) (general, unse­ cured creditor is not a bona fide purchaser, because he does not have a legal inter­ est in the forfeited property); Torres v. $36,256.80 U.S. Currency, 827 F.Supp. 197, 203 (S.D .N .Y . 1993) (similar to Campos', also pointing out significance, for general, unsecured creditor, of unusual circumstance in Reckmeyer that entire es­ tate had been seized); United States v. Mageean, 649 F. Supp. 820, 824, 829 (D. Nev. 1986) (definition of bona fide purchaser cannot be “stretch[ed]” to include tort claim ants, but “there is no reason that a good-faith provider o f goods and services,” although an unsecured creditor, “cannot be a bona fide purchaser”), a ff’d without opinion, 822 F.2d 62 (9th C ir. 1987); see also United States v. 3181 S. W. 138th Place, 778 F. Supp. 1570, 1574-75 (S.D. Fla. 1991) (civil forfeiture case stating that locality is not bona fide purchaser by virtue of tax lien), vacated on other grounds, 996 F.2d 1141 (11th Cir. 1993); S. Rep. No. 98-225, at 201, 209, reprinted in 1984 U.S.C.C.A.N. at 3384, 3392. W e are aw are o f no case that has decided the precise question at issue here. We acknow ledge that some o f the claim s that courts have rejected are weaker than those presented by tax liens, and that at least one court has pointed to a primary purpose o f the crim inal forfeiture statutes’ relation back provisions that would not be served by denying the bona fide purchaser defense to holders o f liens for state and local taxes. See Reckmeyer, 836 F.2d at 208 (“C ongress’s primary concern in adopting the relation-back provision was to make it possible for courts to void sham or fraudulent transfers that w ere aimed at avoiding the consequences of for­ feiture”). N onetheless, we have found no authority that has construed bona fide purchaser broadly enough to encompass such a tax lien-holder. A state or locality does provide something o f value, in the form of government services, in return for the interest it acquires in property (ultimately in the form of a lien) by virtue o f its taxing authority. This exchange, however, does not fit the transactional, arm s’-length exchange of values contemplated in the case law and suggested by the statutory phrase “bona fide purchaser for value.” 12 12 See, e g., L a vtn , 942 F 2d at 185-86 (C o n g re ss deriv ed bona fide purchaser exception '‘from hornbook co m m ercial law ” p rin cip le o f protecting th e ‘“ innocent p u rch aser for valuable c o n sid e ra tio n ’” w hich had d e v elo p ed at co m m o n law “ in order to p ro m o te finality in com m ercial transactions and thus to . . foster 112 L ia b ility o f U.S. fo r Stale an d Local Taxes on Seized an d F orfeited Property Therefore, we do not reverse the Harrison Memorandum’s conclusion that the bona fide purchaser provisions cannot be relied upon to require payment of state and local tax liens.13 III. For the reasons set forth above, we reach the following conclusions: In civil forfeiture proceedings (under 21 U.S.C. § 881), the United States may — and, in­ deed, must — pay liens for state and local taxes accruing after the commission of the offense leading to forfeiture and before the entry of a judicial order o f forfei­ ture, if the lien-holder establishes, before the court enters the order of forfeiture, that it is an innocent owner of the interest it asserts. In criminal forfeiture pro­ ceedings (under 18 U.S.C. § 1963 or 21 U.S.C. § 853), however, the United States may not pay such liens because state and local tax lien-holders are not bona fide purchasers for value of the interests they would assert, and therefore do not come within any applicable exception to a statute that, upon entry of a court’s final order of forfeiture, vests full ownership retroactively in the United States as of the date of the offense. WALTER DELLINGER Assistant Attorney General Office o f Legal Counsel com m erce” ), Reckm ever, 836 F 2 d at 208 (scope o f bona fide p urchaser provision “construed liberally'* is to protect “all persons who give value to the defendant in an arm s’-length transaction w ith the expectation that they w ould receive equivalent value in return” ) The H arrison M em orandum also found that paym ent o f liens for state and local taxes, accruing after the offense, was not w ithin the A ttorney G e n eral’s discretionary authority under 28 U.S C § 524(c)(1)(D ) (“'paym ent o f valid liens . against property that has been forfeited") or 28 U .S.C § 524(c)( 1)(E) (paym ents “in connection w ith rem ission o r m itigation procedures relating to property forfeited” ). W e reach the same conclusion through a different analysis A tax lien-holder who establishes that he or she is an innocent ow ner under the civil forfeiture statute or a bona fide purchaser under the crim inal statutes is protected from the operation o f the relation back doctrine, and need not rely on the A ttorney G e n eral's discretionary pay­ m ent o f a valid hen o r rem ission o r m itigation of a forfeiture that has not occurred w ith respect to the lien­ h o ld e r's interest S ee S. Rep. No. 98-225, at 207-08, 217, rep rin ted in 1984 U.S C C A .N at 3390-91, 3400, Lavin, 942 F 2 d at 185 (bona fide purchaser provisions designed to require protection previously left to discretion o f A ttorney G eneral). If the tax lien-holder fails to establish that he or she is protected by one of these defenses to forfeiture, there can be no “valid lien” for taxes to be paid and no forfeited interest (in the form o f tax liabilities) for the A ttorney G eneral to "rem ift] o r m itigat[e] ” B ecause ow nership of the property will have vested in the U nited States as o f the com m ission o f the offense, state and local authorities cannot (absent a congressional w aiver o f im m unity from stale and local taxation that we do not find in 28 U .S C. § 524 or elsew here) levy taxes on such property after the dale o f the offense any more than they co u ld levy taxes on a federal courthouse o r post office 113

Write a legal research memo on the following topic.

Applicability of the Cargo Preference Act to the Transportation of Alaskan Oil to the Strategic Petroleum Reserve Shipments of Alaskan oil for the Strategic Petroleum Reserve, made on commercial United States-flag ships as required by the Jones Act, 46 U.S.C. § 883, may be counted by the Department o f Energy towards the 50% United States-flag cargo preference share required by the Cargo Preference Act, 46 U.S.C. § 1241(b). The Cargo Preference Act, 46 U.S.C. § 1241(b), applies to both foreign and domestic cargoes procured by the United States, and is not limited to commerce in which United States-flag vessels face foreign com petition. In addition, the Act is an “otherwise applicable Federal procurement statute” that may be waived by the Secretary of Energy under § 804(b) o f the Energy Security Act, 10 U.S.C. § 7340(k). September 15, 1983 M em orandum O p in io n f o r t h e and the Secretary Secretary of of T r a n s p o r t a t io n E nergy This responds to your joint request to the Attorney General for an opinion on the following question: Whether commercial United States-flag oil shipments to the Strategic Petroleum Reserve from Alaska may be counted to­ wards the 50% United States-flag cargo preference share re­ quired by the Cargo Preference Act. Under the terms of an interagency agreement, you agreed to submit this question to the Attorney General in order to resolve a dispute between your two Departments. The Attorney General has referred your request to this Office for decision. For the reasons set forth below, we conclude that shipments of Alaskan oil for the Strategic Petroleum Reserve, made on commercial United States-flag ships as required by the Jones Act, 46 U.S.C. § 883, may be counted towards the 50% United States- flag cargo preference share required by the Cargo Preference Act, 46 U.S.C. § 1241(b). In addition, the Department of Energy (DOE) has asked us to address two related questions: Where oil produced from the Naval Petroleum Reserves is ex­ changed for other oil to be delivered to the Strategic Petroleum 139 Reserve, pursuant to § 804(b) of the Energy Security Act, 10 U.S.C. § 7430(k), may the exchange be conducted without re­ gard to the Cargo Preference Act, and the deliveries excluded from the 50% United States-flag compliance calculation under that Act? Does the Cargo Preference Act require that the Department of Energy and its procurement agents at the Department of De­ fense, in future oil deliveries to the Strategic Petroleum Reserve, make up any past year shortfalls from the Act’s 50% United States-flag standard? The Department of Transportation (DOT) takes the view that the two additional questions submitted by DOE are covered by the interagency agreement be­ tween DOT and DOE, and therefore no outstanding dispute exists between the two agencies with respect to those questions. In an effort to provide as much guidance as possible to both agencies, we address below the strictly legal issues raised by DOE’s separate questions. That legal analysis, however, does not dispose of the problem, because your agencies take different views as to the scope and intent of their obligations as agreed upon in the interagency agree­ ment. We are not in a position to interpret that agreement and do not attempt to do so here. We recommend that, if you cannot resolve your differing interpreta­ tions of the agreement, the matter be referred to appropriate higher levels in the Executive Branch. In analyzing the questions presented to us, we have examined the views of each of your departments, the views of the Office of Management and Budget, and our independent research. I The questions we consider here arise out of the interplay between DOE’s obligation to comply with congressional mandates to fill the Strategic Petro­ leum Reserve (SPR), a stockpile of crude oil intended to provide protection against interruption in energy supplies to the United States, and its obligations and authority under three other statutes: (a) the Cargo Preference Act, 46 U.S.C. § 1241(b); (b) the Jones Act, 46 U.S.C. § 883; and (c) the Energy Security Act, 10 U.S.C. § 7430(k). We outline below the relevant portions of each of those statutes.1 1 T he SPR w as authorized by Title I, P a rt B, o f the Energy Policy and C onservation Act, Pub. L. No. 9 4 163, 89 Stat. 8 8 1 -9 0 (1975) (codified at 4 2 U.S.C. §§ 6 2 3 1 -6422). C ongress has repeatedly legislated with resp ect to the fill rate fo r the SPR. See P ub. L. No. 9 7 -3 5 , T itle X, 95 Stat. 619 (1981); Pub. L. No. 96-294, § 8 0 1 , 94 Stat. 775 (1980); Pub. L. N o. 9 6 -5 1 4 , 94 Stat. 2964 (1980). Most recently, in the Energy E m ergency Preparedness A ct o f 1982, Pub. L. No. 9 7 -2 2 9 , § 4 , 96 Stat. 250-52, Congress required the P resident to fill the SPR at a rate o f 300,000 barrels per day unless he finds that this rate is not in the national interest, in w hich ev en t the minimum req u ired fill rate is 220,000 barrels per day if appropriations are availab le to achieve this rate, o r the highest practicable fill rate that would fully use available appropriations. D O E is resp o n sib le fo r administration o f the SPR, including the acquisition, transportation, and storage o f crud e oil. See 42 U .S.C. §§ 6233, 6240. Pursuant to an interagency agreem ent, the Defense Fuel Supply C en ter acts as the D epartm ent of E n e rg y 's procurem ent ag en t and actually solicits offers and awards contracts (w ith D O E’s approval) for the acquisition o f oil. 140 A. Cargo Preference Act Ocean shipments of crude oil for the SPR are generally subject to the requirements of the Cargo Preference Act, Pub. L. No. 83-664, 68 Stat. 832 (1954) (codified as amended at 46 U.S.C. § 1241(b)).2 The Act provides in pertinent part that: Whenever the United States shall procure, contract for, or otherwise obtain for its own account, or shall furnish to or for the account of any foreign nation without provision for reim­ bursement, any equipment, materials, or commodities, within or without the United States, or shall advance funds or credits or guarantee the convertibility of foreign currencies in connection with the furnishing of such equipment, materials, or commodi­ ties, the appropriate agency or agencies shall take such steps as may be necessary and practicable to assure that at least 50 per centum of the gross tonnage of such equipment, materials, or commodities . . . which may be transported on ocean vessels shall be transported on privately owned United States-flag com­ mercial vessels, to the extent such vessels are available at fair and reasonable rates for United States-flag commercial vessels, in such manner as will insure a fair and reasonable participation of United States-flag commercial vessels in such cargoes by geographic areas. Thus, the Cargo Preference Act requires DOE to take “such steps as may be necessary and practicable to assure that at least 50 per centum” of oil for the SPR that is transported on ocean vessels be transported on United States-flag commercial vessels, if such vessels are available at fair and reasonable rates for United States-flag commercial vessels. B. Jones A ct Although most of the oil shipped to the SPR has been obtained from foreign sources, such as the Persian Gulf, the North Sea, North Africa, and the Carib­ bean, a substantial volume was shipped, particularly in 1981, from the Alaskan North Slope Fields via Valdez, Alaska, to SPR receiving docks in Texas and Louisiana.3 Because these shipments of Alaskan oil took place between United States ports, they were subject to the Jones Act, Act of June 5,1920, ch. 250,41 Stat. 988, 999 (codified as amended at 46 U.S.C. § 883).4 The Jones Act provides in relevant part that: 2 The C argo Preference Act added a new subparagraph (b) to § 901 o f the M erchant M arine Act o f 1936, Pub. L. No. 7 4 -8 3 5 , 49 Stat. 1985. 3 DOE has inform ed us that approxim ately 10 7 percent o f oil stored in the SPR as of D ecem ber 31, 1982, was produced in Alaska. 4 The Jones Act is one in a series o f statutes, beginning in 1789, w hich have im posed general restrictions on the transportation o f freight in coastw ise traffic by vessels not ow ned by citizens o f the U nited States. See Central Vermont Co. v. D u m in g , 294 U.S. 33, 38 & n .l (1935). 141 No merchandise shall be transported by water, or by land and water, on penalty of forfeiture thereof, between points in the United States, including Districts, Territories, and possessions thereof embraced within the coastwise laws, either directly or via a foreign port, or for any part of the transportation, in any other vessel than a vessel built in and documented under the laws of the United States and owned by persons who are citizens of the United States, or vessels to which the privilege of engag­ ing in the coastwise trade is extended by section 13 or 808 of this title. 46 U.S.C. § 883. In accordance with the terms of the Jones Act, we understand that shipments of Alaskan oil for the SPR have been made entirely in United States-flag commercial vessels. C. E nergy Security A ct The Energy Security Act (ESA), Pub. L. No. 96-294, 94 Stat. 611 (1980), was passed in the aftermath o f the 1979 Iranian supply disruption, when efforts to fill the SPR fell behind the approved fill schedule and oil purchases for the SPR came to a halt. In the ESA, passed in June 1980, Congress required that the SPR oil fill be resumed and sustained at an average rate of at least 100,000 barrels per day. In order to facilitate this fill rate, Congress authorized the Secretary of Energy to store oil from the Naval Petroleum Reserves (NPR)5 in the SPR, or to: (B) exchange, directly or indirectly, that petroleum [from the NPR] for other petroleum to be placed in the Strategic Petroleum Reserve under such terms and conditions and by such methods as the Secretary determines to be appropriate, without regard to other­ wise applicable Federal procurement statutes and regulations. Pub. L. No. 96-294, § 804(b), 94 Stat. 777 (1980) (codified at 10 U.S.C. § 7430(k)(l)). In 1980 and 1981 DOE used the authority in the ESA to place in the SPR a substantial amount of crude oil that had been exchanged for NPR oil. II A. A p p licability o f the Cargo Preference A ct to Jones Act Cargoes The question you have jointly referred to us for decision is whether ship­ ments of Alaskan oil — 100 percent of which were made in United States-flag commercial vessels pursuant to the Jones Act — may be counted towards the 50 percent Cargo Preference Act share for the SPR program. DOT takes the 5 The N aval Petroleum Reserves in c lu d e several specific crude oil or petroleum reserves designated originally by executive o rd er and now specifically authorized by 10 U .S.C. §§ 7420-7438. In general, the reserves may be used for production o f petroleum only if specifically authorized by joint resolution of C ongress and approved by the President. Id. § 7422(b). 142 position that the Cargo Preference Act reserves 50 percent of foreign oil transported to the SPR for United States-flag tankers, and asserts that DOE must base its Cargo Preference Act compliance calculation only on foreign shipments. DOT maintains that the purpose and legislative intent of the Cargo Preference Act is to reserve 50 percent of government-generated cargo for United States-flag vessels in commerce in which the United States vessels face competition from foreign-flag vessels, i.e., import or export foreign commerce. Because foreign-flag vessels are already excluded by operation of the Jones Act from domestic trade, DOT contends that government-procured or owned cargoes shipped in such commerce should not be included in the calculation of Cargo Preference Act compliance. DOT points out that the effect of allowing Jones Act cargoes to be included in the Cargo Preference Act calculation would be to reduce the share of foreign trade that must be reserved to United Statesflag commercial ships — a result DOT contends is “entirely inconsistent” with the purpose of the Cargo Preference Act. DOE’s position is that the plain language of the Cargo Preference Act covers all government-procured or owned cargoes, which would include Alaskan oil shipments, and that, while the Act may have been passed primarily to deal with foreign cargoes exported from or imported into the United States, the legisla­ tive history of the Act does not demonstrate any clear congressional intent to limit that language to foreign cargoes. As a policy matter, DOE maintains that exclusion of Alaskan oil shipments from the calculation of its Cargo Preference Act share for the SPR program would substantially increase the overall cost of acquisition of oil for the SPR, inconsistently with the goal of minimizing the cost of the SPR, see 42 U.S.C. § 6231,6 particularly if DOE is required to make up shortfalls from the 50 percent level for prior years.7 The question is a close and novel one, and the arguments made in support of both positions have been skillfully presented and have considerable merit. After a careful review of the memoranda provided to us, an independent review of the legislative history of the Cargo Preference Act, and additional research, we conclude that DOE may include Jones Act shipments of Alaskan oil in the calculation of its overall 50 percent Cargo Preference Act compliance level for the SPR program. 6 A lthough DOE notes that “ m inim ization o f the cost o f the Reserve” is an objective set forth in the Energy Policy and Conservation A ct, 4 2 U.S.C. §§ 6231-6422, it does not assert that the SPR program itse lf has been exem pted from the C argo Preference Act. 7 For calendar year 1982 alone, DOE calculates that it would be in com pliance w ith the Cargo Preference Act, whether or not A laskan oil shipm ents are counted. For the years 1981-82, DOE states that it would be in compliance with the C argo Preference A ct SO percent share if A laskan oil shipm ents were included; if such shipments w ere excluded, the share o f SPR oil shipm ents carried in United States flag-com m ercial vessels would fall to roughly 39 percent. For the period 1977-1982, covenng m ost o f the acquisition for the SPR, the Cargo Preference Act com pliance percentage including Alaskan shipments would be either 48.9 percent (if Naval Petroleum Reserve exchanges are excluded, see below) o r 46.3 percent (if N aval Petroleum Reserve exchanges are included); w ithout Alaskan oil shipments, the compliance figure would be 41.9 percent (excluding N aval Petroleum R eserve exchanges) or 38.6 percent (including Naval Petroleum R eserve ex­ changes). To the extent D OE is required to make up any shortfall from the 50 percent level, it w ould have to do so by using relatively expensive U nited States com m ercial vessels, which w ould increase the overall cost o f SPR acquisitions. 143 Our touchstone in reaching that conclusion is “the familiar canon of statu­ tory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer P roduct Safety C om m ’n v. G T E Sylvania, 447 U.S. 102, 108 (1980); see also U nited States v. Turkette, 452 U.S. 576,580 (1981); United States Lines, Inc. v. Baldridge, 677 F.2d 940, 944 (D.C. Cir. 1982). On its face the language o f the Cargo Preference Act covers all governmentprocured or owned cargoes transported on ocean vessels, which would include government cargoes transported between United States ports, as well as car­ goes transported to or from a foreign port. The Act applies “/ w jhenever the United States shall procure . . . equipment, materials, or commodities within or without the United States.” 46 U.S.C. § 1241(b) (emphasis added). The Act carves out certain explicit exceptions to the 50 percent United States-flag vessel requirement, but does not make any specific exception for cargo that is subject to the Jones Act 100 percent United States-flag requirement, or any general exception for cargoes transported in trades in which there is, by operation of statute, no foreign competition.8 DOT urges that we must interpret that language in light of the Act’s legisla­ tive history, which DOT maintains demonstrates a clear congressional intent that the 50 percent United States-flag requirement should apply only to cargoes shipped in trades in which the United States vessels face foreign competition. In order to reach the conclusion advocated by DOT, we would have to infer a further exception, in addition to the explicit exceptions in the Act, for Jones Act cargoes. DOT suggests that the implied exception would cover only cargoes that must be transported in United States vessels pursuant to the first clause of the Jones Act; DOT takes the position that domestic shipments that may be made in foreign vessels, pursuant to the third proviso of the Jones Act, would be covered by the general language of the Cargo Preference Act.9 In general, we find the legislative history of the Cargo Preference Act to be inconclusive on the question of congressional intent. We are unwilling on the basis of that history to infer a specific exception, from the broad language used by Congress, for government cargoes that are otherwise subject to the Jones Act.10 8 Specifically, the A ct does not ap p ly to cargoes carried in vessels o f the Panam a Canal C om pany, or to certain vessels rebuilt abroad, if the o w n e r notified the M aritim e A dm inistration prior to Septem ber 21, 1961, o f its intent to docum ent the vessel u n d e r United States registry. 4 6 U.S.C. § 1241(b). 9 T he th ird proviso o f the Jones A ct exem pts from the exclusive U nited States-flag transportation require­ m ent “m erchandise transported betw een points w ithin the continental United States, including Alaska, over through r o u te s . . . recognized by the In terstate C om m erce C om m ission for which routes rate tariffs have been o r s h a ll. . . be filed w ith [the ICC] w hen such routes are in part over C anadian rail lines and their own or other connecting w ater fa cilities.” 46 U .S.C. § 883. 10 W e note that, as a general matter o f statutory construction, im plied exceptions are disfavored, especially if the statute contains an express ex cep tio n . See, e.g.. C onsum er Product Safety C om m ’n v. GTE Sylvania, 447 U .S. at 108; A n dru s v. Glover C onstr. Co., 446 U.S. 608, 6 1 6 -1 7 (1980); see generally 2A Sands, S u th erla n d on Statutory Construction (4th ed. 1973). T his principle would not necessarily preclude us, in a p ro p er case, from reading particular statutory language narrow ly in order to im plem ent clear congressional intent. H ow ever, as w e discuss above, the legislative history o f the C argo Preference Act is not clear on this point, and w e are therefore unwilling to infer the exception DOT suggests. 144 As DOT points out and DOE acknowledges, the primary impetus for passage of the Cargo Preference Act was to promote the United States shipping industry against low-cost competition from foreign flag vessels, by reserving to United States-flag vessels a “substantial portion” of cargoes over which the United States has some control. DOT notes that the congressional debates and reports on S. 3233, which became the Cargo Preference Act, contain numerous state­ ments emphasizing that the purpose of the bill was to assure to privately owned United States merchant flag vessels a “substantial portion of the water-borne export and import foreign commerce,” in which those vessels faced massive foreign competition. See, e.g., S. Rep. No. 1584, 83d Cong., 2d Sess. 1 (1954); H.R. Rep. No. 2329, 83d Cong., 2d Sess. 1 (1954); 100 Cong. Rec. 4158-59 (1954) (remarks of Sen. Butler). These statements, however, do not necessarily indicate that Congress in­ tended that the bill, despite its broad language, would apply only to commerce in which United States-flag vessels face foreign competition.11 We find it significant that the bill was intended to apply to two distinct types of cargoes: foreign-aid cargoes that are furnished or financed by the United States for the benefit of another nation, which necessarily will be “foreign” cargoes, and cargoes procured by the United States for its own use, which as a practical matter could be foreign or domestic. Most of the legislative history focuses on the first type of cargo, and therefore emphasizes that the primary applicability of the bill would be with respect to foreign- cargoes.12 The language used in the legislative history to describe the obligations imposed with respect to cargoes obtained by the United States for its own use, however, is not restricted to foreign cargoes. For example, the House Report states that the bill would apply in four situations: (1) Where the United States procures, contracts, or otherwise ob­ tains for its own account equipment, materials, or commodities; 11 In support o f its reading o f the legislative history and purpose o f the Cargo Preference A ct, DOE cites recent statem ents made by S enator Slade Gorton, C hairm an o f the Senate Commerce C om m ittee’s M erchant M arine Subcommittee, during the S ubcom m ittee's June 16, 1982 oversight hearings on adm inistration of the Act, as well as recent correspondence from the chairm an and ranking mem ber o f the House M erchant Marine and Fisheries Com m ittee and the chairm en o f the H ouse Committee on Energy and Commerce Subcom m ittee on Fossil and Synthetic Fuels. Although these statem ents m ight reflect the view s of those particular legislators on w hether Jones Act shipm ents should, as a m atter o f current legislative policy, be included in C argo Preference A ct calculations, they may not be accorded significant w eight in determ ining C ongress' intent when it passed the C argo Preference Act in 1954. Even contem poraneous remarks o f individual legislators are not controlling in analyzing legislative intent. M oreover, the “views o f a subsequent Congress form a hazardous basis for inferring the intent o f an earlier one.” C onsum er P roduct Safety Com m 'n v GTE Sylvania, 447 U.S. at 117 (quoting United States v. Price, 361 U.S. 304, 313 (I960)). 12 For exam ple, the legislative history behind inclusion o f the phrase “w ithin or w ithout the U nited States” em phasizes that C ongress’ prim ary purpose was to reach “off-shore procurem ent” foreign-aid c argoes — i.e., situations in which the U nited States purchased o r financed the purchase of cargoes in one foreign country, for shipment to another foreign country. See, e.g., 100 C ong. Rec. 41 5 8 -5 9 (1954) (remarks o f Sen. Butler). The language “ without the U nited States” was intended to assure that the transportation o f such cargoes w ould be subject to the 50 percent preference requirem ent. This legislative history is not, how ever, necessar­ ily inconsistent with the conclusion that the 50% preference share m ight also apply to domestic cargoes, but rather reflects C ongress’ principal focus on foreign aid-type cargoes. See generally United States Lines, Inc. v. Baldridge, 677 F.2d at 944. 145 (2) furnishes equipment, materials, or commodities to or for the account of any foreign nation without provision for reimbursement; (3) advances funds or credits; or (4) guarantees the convertibility of foreign currencies in con­ nection with the furnishing of such equipment, materials, or commodities. H.R. Rep. No. 2329, supra, at 1-2. There is no suggestion in the language used to describe government-procured or owned cargoes that the reach of the Act must be limited to foreign cargoes procured by the United States. In fact, there is some indication in the legislative history that Congress was aware that the Act could apply to cargoes acquired domestically by the United States for its own use. The Senate Report notes that the bill affirmed the principle established by Congress in 1904, when it required that “vessels of the United States or belonging to the United States, and no others, shall be employed in the transportation by sea of coal, provisions, fodder, or supplies of any description, purchased pursuant to law, for the use of the Army or Navy,” Act of Apr. 28, 1904, ch. 1766, 33 Stat. 518, as amended, 70A Stat. 146 (1956) (codified at 10 U.S.C. § 2631). See S. Rep. No. 1584, supra, at 2. The 1904 legislation, which was not repealed by the 1954 Cargo Preference Act, is clearly not limited to transportation of foreign cargoes, but applies also to cargoes acquired domestically by the Army or Navy. See generally 38 Cong. Rec. 2464-65 (1904) (remarks of Rep. Perkins) (quoted in 43 Comp. Gen. 792, 797-98 (1964)). Our conclusion that the language of the Cargo Preference Act applies to domestic, as well as foreign, cargoes has some support in a 1964 decision of the Comptroller General with respect to application of the 1904 act cited above, the Cargo Preference Act, and the Jones Act to a proposed trainship service between the United States and Alaska, via Canada. With respect to the applica­ bility of the Cargo Preference Act, the Comptroller General stated that: The 1954 Cargo Preference Act by amending section 901 of the Merchant Marine Act of 1936, 49 Stat. 2015, 46 U.S.C. § 1241, provided permanent legislation covering the transporta­ tion of a substantial portion of waterborne cargoes in United States-flag vessels. In H. Rept. No. 80, Administration of Cargo Preference Act, 84th Congress, 1st Sess., page 2, it is stated that the 50-percent provisions of the 1954 Cargo Preference Act are to apply “in four kinds of situations” the first being where the United States “procures, contracts or otherwise obtains for its own account equipment, materials, or commodities,” and the remaining three covering transactions involving foreign sub­ jects or nations. This fir s t situation is not restricted in terms to either fo reig n or dom estic commerce. In harmony with the basic maritime policy of the United States as stated in section 101 of 146 the Merchant Marine Act of 1936,46 U.S.C. § 1101, and on the basis of the language alone, the 1954 act might be regarded as relating to Government waterborne cargo transported between p oin ts in the United States. 43 Comp. Gen. 792, 802 (1964) (emphasis added). The Comptroller General did not, however, find it necessary in that decision to determine whether the Act covers transportation in domestic, as well as foreign commerce. We do not find persuasive DOT’s further argument that inclusion of Jones Act cargoes in the calculation of DOE’s Cargo Preference Act share for the SPR program would be so inconsistent with the purpose of the Cargo Prefer­ ence Act that we must imply an exception from that Act for Jones Act ship­ ments. The purpose of both acts, however it may be characterized, is the same: to reserve cargoes for United States-flag vessels in order to promote and protect the United States shipping industry, which may be called upon in times of war or national emergency to play a vital sealift role in supplying American forces. The Cargo Preference Act achieves this purpose by requiring United States agencies to reserve a substantial portion of their cargoes for United States-flag commercial vessels. The Jones Act achieves that purpose by reserving all domestic coastwise trade to United States vessels.13 In practical terms, we understand that allowing Jones Act cargoes of Alaskan oil to be counted in DOE’s Cargo Preference Act share for the SPR program may disadvantage United States-flag tankers in the foreign crude oil trades, because inclusion of Jones Act shipments would lower the ;percentage of foreign oil cargoes that must be shipped on United States vessels in order to reach the 50 percent Cargo Preference Act share. However, we do not understand that the effect of inclu­ sion of the Jones Act shipments will be so great as to undermine or frustrate the purposes served by the Cargo Preference Act, and we cannot say that this result is so contrary to Congress’ intent in enacting the Cargo Preference Act that it would justify an Executive Branch revision of the statutory language. See generally United States v. American Trucking A s s ’n, 310 U.S. 534,543 (1940). DOT has also argued that, as a matter of statutory construction, the Cargo Preference Act must be interpreted to cover only cargoes transported in trades in which United States-flag ships face foreign competition, because the Act would be unnecessary in a domestic trade from which foreign-flag vessels are already excluded. Therefore, DOT contends, it would be “inconsistent with accepted norms of statutory construction to interpret the Cargo Preference Act to apply to a trade where it was unneeded.” The question we address here, however, is not whether, when the United States procures cargoes that are 13 W e see no reason here to address the effect o f the A ttorney G en eral's opinion in 1907 that a predecessor statute to the Jones Act did not apply to governm ent-ow ned cargoes. See 26 Op. A tt’y Gen. 415 (1907). The applicability o f that opinion to the Jones Act and its continued validity is, as D OT notes, open to some question. DO E states, how ever, that the A laskan oil acquired for the SPR was bought on an f.o.b. destination basis, so that title was held during the transportation by the private ow ner and not by the U nited States Governm ent. The Jones A ct clearly applies to transportation o f privately ow ned cargoes, and therefore applied to the transportation o f SPR oil. 147 subject to the Jones Act, it must also comply with the Cargo Preference Act. If that were the question, we might concur with DOT’s analysis, because it would arguably be superfluous to require compliance with the Cargo Preference Act’s 50 percent United States-flag ship requirement in a situation in which the Jones Act already requires 100 percent United States-flag ship carriage. However, the question we address is whether, when the United States engages in a program of acquisition that includes both Jones Act and non-Jones Act shipments, it may count the Jones Act shipments towards its overall Cargo Preference Act share. Seen in that light, we do not believe the Cargo Preference Act can be regarded as superfluous, because it would still require the agency to take necessary and practicable steps to reach an overall 50 percent compliance level.14 In sum, while the arguments made by DOT in support of its interpretation of the Cargo Preference Act have considerable merit, we believe in this case that the plain language of the statute should prevail. Therefore, it is our opinion that shipments of Alaskan oil by or on behalf of DOE for the SPR may be counted in calculation of DOE’s Cargo Preference Act share for the SPR program. B. Exchange o f NPR Oil The first of the two questions posed separately by DOE also arises out of the SPR program, but involves interpretation of the language of § 804(b) of the Energy Security Act (ESA), codified at 10 U.S.C. § 7430(k), that allows the Secretary of Energy to exchange oil from the NPR for oil to be placed in the SPR “without regard to otherwise applicable Federal procurement statutes and regulations.” The question posed by DOE is whether the Cargo Preference Act may be considered to be an “otherwise applicable Federal procurement statute” within the meaning of § 804(b) of the ESA, which may therefore be waived by the Secretary of Energy. We concur with DOE’s legal conclusion that, at least for the purpose of § 804(b), the Cargo Preference Act would be an “otherwise applicable Federal procurement statute,” which may be waived by the Secretary of Energy if he determines that application of the Cargo Preference Act would hamper efforts to exchange NPR oil for other oil to be placed in the SPR.15 Although the terms of the Cargo Preference Act do not expressly characterize the Act as a “pro­ curement” statute, the Act applies, inter alia, when the United States “pro­ cures” goods to be transported by ocean vessels. See 46 U.S.C. § 1241(b). Certainly in practical terms the Cargo Preference Act regulates the government’s procurement of ocean transportation services and the transportation by vessel 14 In fact, it appears to us to be possible that some shipm ents m ade betw een dom estic ports could be carried on fo reig n -flag vessels, pursuant to th e third proviso o f the Jones Act or to w aivers o f the Jones Act requirem ents. D O T has noted that, upon occasion, Jones Act w aivers have been granted for governm entow ned cargo. In that event, it would c learly not be superfluous to apply the Cargo Preference Act to those dom estic cargoes, in o rd er to assure a 50 percent overall share to U nited States-flag vessels. 15 W e do not suggest here that the C arg o Preference A ct w ould necessarily also be considered a “Federal procurem ent statute” under a different statutory schem e. 148 of commodities procured by the government, and is an integral part of the acquisition process.16 In addition, the purpose of the waiver authority in § 804(b) supports the conclusion that the Cargo Preference Act can be considered a “procurement statute” for the purpose of exchanges of NPR oil. Although the legislative history of the ESA does not list or otherwise describe in detail what is included in the term “Federal procurement statutes and regulations,” the purpose of the waiver authority is clearly to grant the Secretary of Energy sufficient flexibility to use the exchange authority effectively to meet the pressing need to increase the fill rate of the SPR. See H.R. Rep. No. 1104, 96th Cong., 2d Sess. 317-18 (1980). To the extent that it regulates some aspect of the acquisition process, and could substantially frustrate efforts by the Secretary of Energy to use the authority granted in the ESA to exchange NPR oil, we believe the Cargo Preference Act is a “procurement” statute covered by the ESA. Therefore if, in the Secretary of Energy’s judgment, limiting the NPR exchange in order to assure 50 percent Cargo Preference Act shipping would have frustrated the objectives of the ESA, reliance on the waiver authority in § 804(b) to permit the exchange without regard to the Cargo Preference Act would be consistent with the letter and the spirit of the ESA. Any resulting shortfall in meeting Cargo Preference Act requirements for the NPR exchange should thus not be counted as a Cargo Preference Act deficiency. We take no view, however, as to whether the Secretary of Energy has actually waived or could yet waive applicability of the Cargo Preference Act to NPR exchanges that have already taken place. DOT takes the position that the ocean transportation of foreign oil delivered to the SPR in exchange for NPR oil was included in calculating DOE’s existing obligations under the inter­ agency agreement, and therefore DOE cannot now maintain that such ex­ changes should be excluded from calculation of its Cargo Preference Act compliance for past years. DOE asserts that the agreement does not address treatment of NPR exchanges, and therefore that the Secretary of Energy is not barred by the agreement from exercising his waiver authority.17 16 The definition o f the term “procurem ent” as used in the Federal Procurem ent Policy Act A m endm ents o f 1979, Pub. L. No. 9 6 -8 3 , § 3, 93 Stat. 649 (41 U.S.C. § 403(b)), is certainly broad enough to cover the C argo Preference Act. That definition reads as follows: As used in this ch ap ter the term “procurem ent” includes all stages of the acquisition process, beginning w ith the process for determ ining a need for property and services through to the Federal G overnm ent’s disposition o f such property and services. Sim ilarly, the definition o f “procurem ent” contained in the Federal Procurem ent Regulations includes the “acquisition (and directly related m a tte rs ). . . o f personal property and non-personal services,” which w ould also appear broad enough to cover C argo Preference Act requirem ents. FPR § 1-1.209. Finally, w e note that rules governing Cargo Preference Act com pliance are included in the Federal Procurem ent Regulations and the Defense Acquisition R egulations. FPR § 1 -19.108-2; DAR § 1-1404. 17 DO E does not address w hether the Secretary has m fact exercised that authority for som e or all NPR exchanges, o r what action w ould be necessary to exercise that authority. We understand from conversations with DOE that no official w aiver action was taken at the tim e the NPR exchange cargoes w ere acquired. Section 804(b) o f the ESA does not explicitly require such form al action and, to o u r know ledge, there are no regulations that establish particular procedures o r prerequisites for such w aivers. As a m atter of logic, how ever, it seems to us that the w aiver authority should be exercised at the time o f acquisition o f the cargoes. Continued 149 As we were not privy to the negotiations that led to the interagency agree­ ment, we are not in a position to determine whether the treatment of past NPR oil exchanges was resolved during those negotiations. We recommend that this issue be addressed again by DOE and DOT and, if necessary, resolved at a higher level within the Executive Branch. C. R em edies f o r Shortfalls in Cargo Preference A ct Compliance The second question posed separately by DOE concerns the available rem­ edies under the Cargo Preference Act for a calendar year shortfall in United States-flag vessel shipments. We understand that the Maritime Administration (MarAd), which is the component of DOT responsible for administering the Cargo Preference Act, see 46 U.S.C. § § 1 1 14(b), 1122(d), took the position in discussions and correspondence with DOE, prior to negotiation of the inter­ agency agreement, that annual shortfalls in meeting the 50 percent United States-flag ship share must be made up in succeeding years. DOT now also asserts that in the interagency agreement DOE agreed, independently of its undertaking to make up its 1981 Cargo Preference Act deficiency and to transport at least 50 percent of foreign oil delivered to the SPR on United States-flag tankers — both o f which are contingent to some degree on issuance of our opinion here — that it would carry forward calendar year deficits or surpluses in calculating Cargo Preference Act requirements for United Statesflag vessels in future years. For its part, DOE asserts that it is not required, as a matter of law, to carry deficiencies forward from one year to the next in order to reach the 50 percent level, and that there had been, at least prior to 1980, a “longstanding” agree­ ment between MarAd and DOE that Cargo Preference Act compliance would be measured on a calendar year basis, without carrying forward either a surplus or a deficiency from one year to the next. With respect to the effect of the interagency agreement, DOE maintains that its obligation to carry forward deficits and surpluses is contingent on the issuance of an opinion on the question jointly referred to the Attorney General, and therefore ceases with the issuance of that opinion. The fundamental disagreement between DOE and DOT as to what they agreed upon in the interagency agreement makes it impossible for us to provide specific guidance to either agency with respect to remedying shortfalls in Cargo Preference Act compliance.18 Obviously, the method of complying with 17 (. . . continued) w heo the Secretary can make a determ ination that com pliance w ith the C argo Preference Act fo r those p a rtic u la r cargoes w ould frustrate the D ep artm en t's ability to m aintain or increase the SPR fill rate to levels m andated by C ongress. W e have some d o u b t that the w aiver authority in the ESA w as intended to provide a post hoc rationalization fo r overall program m atic shortfalls in an a g en cy 's Cargo Preference Act compliance. 18 A t best, the interagency agreement is am biguous on this point. Subparagraph 1(D) of the agreem ent recites in p art that “commencing w ith calendar year 1981, deficits from and surpluses over 50% in the calculation o f the SP R ’s cargo preference obligation w ill be cum ulative, to be carried forward in calculating the requirem ents for U nited States-flag vessels in future years." DOG m aintains that this obligation is subject C ontinued 150 the Act can be a proper matter for negotiation and agreement between MarAd, which is charged with administering the Act, and a federal agency, such as DOE, that ships cargoes subject to the Act. We would not disturb such an agreement unless it were predicated on an incorrect reading of the applicable law and regulations — a conclusion we could not draw with respect to either interpretation advanced here.19 We are not the appropriate office within the Executive Branch to resolve the questions of fact and policy that should have been addressed by both agencies in the course of negotiation of the interagency agreement, or that must be addressed now in order to resolve the outstanding disagreement between those agencies. We suggest therefore that DOT and DOE attempt to resolve that disagreement in further discussions between the two agencies or, if need be, with the participation of other appropriate Execu­ tive Branch officials. Ill We have considered carefully the thorough presentations by both agencies with respect to the application of the Cargo Preference Act to SPR shipments of 18 (. . . continued) to the general condition in paragraph 1 that the obligations each agency undertakes last “until such tim e as the A ttorney General may rule affirm atively” on the issue presented by both agencies for decision. A lthough the structure o f the agreem ent appears to support D O E’s position that this general condition was intended to apply to all obligations undertaken in subparagraph (A) through (D) o f the agreem ent, the language used in subparagraph (D) suggests an independent obligation. In addition, if DOE is correct in its interpretation of subparagraph (D), it appears that the subparagraph is largely redundant with subparagraphs (B) and (C), which outline specific rem edies for D O E 's 1981 Cargo Preference Act shortfall. 19 We can provide some guidance to both agencies on the issue w hether an agency, as a m atter o f law, is required to reach the SO percent United States-flag ship level established in the Cargo Preference Act. We believe it is clear that the Act does not impose an absolute duty on federal agencies to ship 50 percent o f the cargo of a particular program (or o f the agency) in United States-flag vessels, regardless o f the availability of such vessels or o f unforeseen circum stances that might prevent an agency from reaching the 50 percent level. An early version o f S. 3233 w ould have set 50 percent as a mandatory minimum com pliance level, by requiring that “a t lea st 50 p er centum o f the gross tonnage . . which may be transported on ocean vessels shall be transported on privately-ow ned United States-flag com m ercial vessels.” S. Rep. No. 1584, supra , at 2 (em phasis added). The bill w as subsequently am ended, however, to require only that agencies “take such steps as may be necessary and practicable to assure that at least 50 per centum . . . ” Id. (em phasis added). In discussing this am endm ent. Senator Butler, the sponsor o f the bill, specifically noted that the “unequivocal provision for shipm ent o f at least 50 percent o f all aid or federally ow ned or financed cargoes was softened to require only such steps as may be reasonable and practicable to assure shipm ent o f at least 50 percent in American bottom s.” 100 Cong. Rec. 8228 (1954) (remarks o f Sen. Butler). M oreover, the Act by its terms requires 50 percent shipm ent in U nited States-flag vessels only “to the extent such vessels are available at fair and reasonable rates for U nited States-flag com m ercial vessels.” 46 U.S.C. § 1241(b). T he language o f the statute, particularly when read in light o f its legislative history, therefore clearly contem plates that agencies may not be able to meet the 50 percent level — i.e., if, despite the best efforts of the agency, it could not arrange for 50 percent shipment o f its cargo on U nited States-flag vessels, or if United States-flag vessels were not available for particular shipm ents at fair and reasonable rates for such vessels. Therefore, we do not believe that, as a m atter o f law, a federal agency is required to m eet an absolute 50 percent m inimum in its shipm ents o f cargo subject to the C argo Preference Act. If M ar A d 's position on D O E’s obligation to remedy C argo Preference Act deficits were predicated on the legal assum ption that the Act requires DOE to reach a m inimum 50 percent United States-flag vessel share for the SPR program , we believe it would have to be revised to reflect the legal conclusion we have ju st outlined. However, w e do not understand that to be M arA d’s position, and therefore cannot provide addi­ tional guidance on the issue raised by DOE. 151 Alaskan oil, and have concluded that the plain language of the Cargo Prefer­ ence Act allows such shipments to be included in DOE’s calculation of its Cargo Preference Act compliance for the SPR program. We understand that our analysis of this issue will resolve much of the actual dispute between DOT and DOE with respect to DOE’s Cargo Preference Act compliance obligations. With respect to the two questions raised independently by DOE, however, we cannot fully resolve the disagreement between DOT and DOE, because of the continuing controversy between those agencies as to the intent and effect of their interagency agreement. T h eo d o r e B. O lso n Assistant Attorney General Office o f Legal Counsel 152

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Constitutionality of Allowing Punishment of Misdemeanor by a Sentence Exceeding One Year T h e Fifth A m endm ent to the Constitution requires th at offenses punishable by im prison­ m ent for m ore than one year be prosecuted by an indictm ent presented to a grand jury. Proposed am endm ents to the L acey A ct, by w hich m isdem eanor violations o f the A c t could result in up to five years’ im prisonm ent if the defendant w ere designated a “special offender,” must be construed to require prosecution by indictm ent in all cases. March 30, 1981 M EM ORANDUM O PIN IO N FO R T H E C H IE F, W IL D L IFE SECTION, LA N D A N D N A TU R A L RESOURCES D IVISION This responds to your request for our views regarding a proposed amendment to the Lacey A ct (Act), 18 U.S.C. §43. According to information you have provided us, the Safari Club International, an organization of “sportsmen,” has proposed an amendment whereby criminal violations of the Act would be misdemeanors, unless the de­ fendant were designated a “special offender.” A court could sentence a “special offender” to a term o f imprisonment up to five years. You have asked us to comment on the constitutionality of sentencing a defendant to a felony penalty when the underlying violation is a misde­ meanor prosecuted by way of information rather than indictment. For reasons explained below, we conclude that such a statutory scheme would require that all offenses under the statute be brought before a grand jury. The proposed amendment is patterned after the “dangerous special offender” criminal statute, which authorizes a prosecutor in a felony case to file a notice that the defendant is a “dangerous special of­ fender.” 18 U.S.C. § 3575(a). If, after the defendant is convicted by a plea of guilty or otherwise, it appears at a hearing the defendant is a “dangerous special offender,” an increased penalty may be authorized. 18 U.S.C. § 3575(b). T he proposed Lacey A ct amendment in question here similarly would authorize an attorney prosecuting alleged violators of the A ct to file a notice specifying that the defendant is a “special offender.” A defendant could be adjudged a “special offender” if any one of three conditions is met: (1) the defendant has been convicted for three or more offenses involving illegal taking of fish and wildlife, or of plants; (2) the defendant committed the violation as part of a pattern of 87 criminal conduct which constituted a substantial source of his income and in w hich he manifested special skill or expertise; or (3) the defend­ ant was engaged in a conspiracy with five o r more persons. Other than increasing the threshold requirements for special offender status, these categories are almost identical to the categories o f § 3575(c). T he Fifth Amendment provides in part as follows: N o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a G rand Jury . . . . W hen faced with the necessity of defining the words “otherwise infa­ mous crime,” the Supreme Court in 1886 looked for the answer in English, Irish, and early American law, and concluded: [WJhether a man shall be put upon his trial for crime without a presentment or indictment by a grand jury of his fellow citizens depends upon the consequences to him­ self if he shall be found guilty. . . . W hen the accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he shall not be put upon his trial, except on the accusation of a grand jury. E x Parte Wilson, 114 U.S. 417, 423, 426 (1885). The Court decided that a crim e punishable by imprisonment for a term of years at hard labor was an infamous crime within the meaning of the Fifth Amendment. Id. at 429. In a series of subsequent decisions, it was established that an infamous crime is one punishable by imprisonment in a penitentiary or at hard labor. See United States v. Moreland, 258 U.S. 433 (1922); In Re Claasen, 140 U.S. 200 (1891); Mackin v. United States, 117 U.S. 348 (1886). Since imprisonment in a penitentiary may be imposed only if a crim e is punishable by imprisonment exceeding one year, 18 U.S.C. § 4083, the rule has come to be stated that a crime is infamous if it is punishable by imprisonment for more than one year. See Duke v. United States, 301 U.S. 492 (1937). Rule 7(a) o f the Federal Rules o f Criminal Procedure gives effect to this Fifth Amendment requirement by providing: An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be pros­ ecuted by indictment . . . [unless waived]. T he Rule does not enlarge the requirement of an indictment beyond the “capital, or otherwise infamous crime” of the Fifth Amendment. It simply incorporates the criteria which have been established by the Supreme Court. Harvin v. United States, 445 F.2d 675, 678 (D.C. Cir. 1971). Applying these criteria to the question at hand, it is apparent that if the defendant qualifies for treatment as a “special offender,” prosecu­ tion must be by indictment.1 The closest analogy to this situation we found in decided cases is the lengthened sentence authorized for youth­ ful offenders under the Youth Corrections Act, 18 U.S.C. §§ 5005-5025. Under that Act, a defendant under the age of 26 years may be commit­ ted to the custody of the Attorney General for a period up to six years, even if the offense for which he is convicted is a misdemeanor. 18 U.S.C. §§4216, 5010(b), 5017(c). Many defendants prosecuted by way of informations have challenged their convictions, alleging that they were entitled to grand jury indictments. Those cases which have held that an indictment is required include United States v. Ramirez, 556 F.2d 909 (9th Cir. 1976); 2 United States v. Davis, 430 F.Supp. 1263 (D. Haw. 1977; United States v. Neve, 357 F. Supp. 1 (W.D. Wise. 1973), affd, 492 F.2d 465 (7th Cir. 1974); United States v. Reef, 268 F. Supp. 1015 (D. Colo. 1967). Conversely, the District of Columbia Circuit Court of Appeals ruled, in an en banc 6-4 decision, that an indictment is not necessary for prosecutions under the Youth Corrections Act. Harvin v. United States, 445 F.2d 675 (D.C. Cir. 1971). This ruling was based on the fact that the purpose of the extended sentence for a youthful offender was to insure proper treatment and was not a reflec­ tion of the prevailing views o f society as to the infamous or noninfamous character of the crime. Id. at 678. It was also based on the court’s finding that the Youth Corrections A ct does not permit a sentence under it to be served in a penitentiary.3 Neither of these bases is applicable to the proposed “special offender” amendment to the Lacey Act. The increased penalty would reflect societal judgment of the crime and the sentence probably would be served in a penitentiary. Even as to a defendant who does not qualify as a “special offender,” an indictment may be required. If a defendant under this proposed amendment did not satisfy one of the three conditions of “special offender” status noted above, he or she could be imprisoned no more than one year. The proposed amendment does not require, however, that the facts justifying such status be alleged in the charging document so the maximum sentence would not be initially apparent. Under some­ w hat different but analogous facts, the Supreme Court has required an indictment. In Smith v. United States, 360 U.S. 1 (1959), the petitioner was charged with a violation of the Federal Kidnapping Act, 18 U.S.C. § 1201, which was punishable by death if the victim was not liberated 1 The mere designation of a crime as a felony or misdemeanor is not itself determinative. See E x Parte Brede, 279 F. 147 (E.D.N.Y. 1922), a ffd sub nom. Brede v. Powers, 263 U.S. 4 (1923) 2 This opinion was withdrawn when the court was later informed that an indictment had been filed. United States v. Ramirez, 556 F 2d 909, 926 (9th Cir. 1976). In United States v. Indian Boy X, 565 F 2d 585 (9th Cir. 1977), the court points out that Ramirez was withdrawn and rules that juvenile proceedings under Federal Juvenile Delinquency Act, 18 U S C . §§5031-5042 may be initiated by information. 3 This finding was disputed by the dissenting judges in Harvin and by the Ninth Circuit in Ramirez. 89 unharmed. He had waived indictment and was prosecuted by informa­ tion. T he information did not state w hether the victim was released harm ed or unharmed. T h e Court held that the waiver of indictment was not valid.4 The C ourt’s reasoning is equally applicable to the proposal here. The Court explained its reasoning as follows: Under the statute, that offense is punishable by death if certain proof is introduced at trial. When an accused is charged, as here, with transporting a kidnapping victim across state lines, he is charged and will be tried for an offense which m ay be punished by death. Although the imposition of that penalty will depend on whether suffi­ cient proof of harm is introduced during the trial, that circumstance does not alter the fact that the offense itself is one which may be punished by death and thus must be prosecuted by indictment. In other words, when the of­ fense as charged is sufficiently broad to justify a capital verdict, the trial must proceed on that basis, even though the evidence later establishes that such a verdict cannot be sustained because the victim was released unharmed. It is neither procedurally correct nor practical to await the conclusion of the evidence to determine whether the ac­ cused is being prosecuted for a capital offense. For the trial judge must make informed decisions prior to trial which will depend on whether the offense may be so punished. 360 U.S. at 8. For similar reasons, the Court likely would conclude here that w here an indictment is not waived, the government must proceed by way of the grand jury. W e conclude that the Fifth Amendment would impose a constitu­ tional barrier against the use o f informations to prosecute violations under this proposed amendment to the Lacey A ct.5 L arry L . S im m s Acting Assistant Attorney General Office o f Legal Counsel 4 Indictment may not be waived in capital cases. See Fed. R. Crim. P. 7(a). 5 You also ask w hether we have any experience with other statutes that might require misdemean­ ors to proceed by indictment. We d o not. 90

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Eligibility of Involuntary Wartime Relocatees to Japan for Redress Under the Civil Liberties Act of 1988 T h e p ro p o s e d D e p a rtm e n t o f J u s tic e change in its in te rp re ta tio n o f the C iv il L ib e rtie s A c t o f 1988 to e x te n d re d re s s u n d e r th e A c t to m inors w h o a c c o m p a n ie d th e ir p aren ts to Jap a n d u rin g W o rld W a r II a n d to a d u lts w h o a re a b le to show th a t th e ir re lo c a tio n to J a p a n d u rin g th at p e rio d w as in v o lu n ­ tary is a re a so n a b le a n d p e rm is sib le in te rp re ta tio n o f th e s ta tu te A lth o u g h an a g e n c y in te rp re ta tio n th a t has b e e n m o d ifie d o r re v e rs e d is lik e ly to re c eiv e le ss d e fe re n c e b y a re v ie w in g c o u rt th a n a c o n siste n t an d c o n te m p o ra n e o u s in te rp re ta tio n , the fact o f m o d ific a tio n d o e s n o t p re c lu d e th e c o u rt fro m g ran tin g d e fe re n c e to th e n e w in te rp reta tio n M ay 10, 1994 M e m o r a n d u m O p in io n f o r t h e A s s i s t a n t A t t o r n e y G e n e r a l C i v il R i g h t s D i v i s i o n This memorandum is in response to your request for this Office’s review of the proposed change in eligibility determinations under the Civil Liberties Act of 1988, Pub. L. No. 100-383, 102 Stat. 903 (codified at 50 U.S.C. app. § 1989 (1988)) (“the Act”). The proposed change would extend redress under the Act to minors who accompanied their parents to Japan during World War II and to adults who are able to show that their relocation to Japan during that period was involun­ tary. We conclude that the proposed change is a reasonable and permissible inter­ pretation of the statute. We also have analyzed the implications of this,change as to the deference the Department can expect from a reviewing court in the event of a challenge. An agency interpretation that has been modified or reversed is likely to receive less deference than a consistent and contemporaneous interpretation, but the fact of modification does not preclude a court from granting deference to the new inter­ pretation. 1. The Civil Liberties Act of 1988 enacts into law the recommendations of the Commission on Wartime Relocation and Internment of Civilians established by Congress in 1980. H.R. Conf. Rep. No. 100-785, at 1 (1988). The Commission submitted a unanimous report to Congress in 1983, entitled Personal Justice D e­ nied , “which extensively reviewed the history and circumstances of the decision to exclude, remove,” and ultimately to intern “Japanese Americans and Japanese resi­ dent aliens from the West Coast, as well as the treatment of the Aleuts during World War II.” Redress Provisions for Persons of Japanese Ancestry, 54 Fed. Reg. 34,157 (1989). The final part of the Commission’s report, Personal Justice Denied 2: Recommendations, concluded that these events were influenced by ra­ 94 E lig ib ility o f Involuntary W artime R elocatees to Japan f o r Redress U nder the C ivil Liberies A ct o f 1988 cial prejudice, war hysteria, and a failure of political leadership and recommended that Congress and the President take remedial action. Id. The Civil Liberties Act of 1988 was signed into law by President Reagan on August 10, 1988. The purposes of the Act are to acknowledge and apologize for the fundamental injustice of the evacuation, relocation, and internment of Japanese Americans and permanent resident aliens of Japanese ancestry; to make restitution to the individuals who were interned; and to fund a public education program to prevent the occurrence of any similar event in the future. 50 U.S.C. app. §§ 19891989a. Any “eligible individual” living on the date of enactment is entitled to a restitution payment of $20,000. 50 U.S.C. app. § 1989b-4(a)(l). The Attorney General is responsible for identifying, locating, and authorizing payment to all eligible individuals. 50 U.S.C. app. § 1989b-4. The Attorney Gen­ eral delegated the responsibilities and duties assigned by the Act to the Assistant Attorney General for Civil Rights, who created the Office of Redress Administra­ tion in the Civil Rights Division (the “Division”) to execute the duties of the De­ partment under the Act. The regulations governing eligibility and restitution were drafted in the Office of Redress Administration and published under the authority of the Department in 1989. 54 Fed. Reg. 34,157 (1989) (final rule) (codified at ,28 C.F.R. § 74). Section 108(2) of the Act defines the individuals eligible for redress payments as any United States citizen or permanent resident alien of Japanese ancestry who was evacuated, relocated, or interned during World War II.1 This provision spe­ cifically excludes from eligibility “any individual who, during the period beginning on December 7, 1941, and ending on September 2, 1945, relocated to another country while the United States was at war with that country.” 50 U.S.C. app. § 1989b-7(2) (“the relocation exclusion”). The relocation exclusion in the regula­ tions governing eligibility determinations under the Act uses precisely the same language. 28 C.F.R. § 74.4. The regulations do not specifically address the eligibility of minors who accom­ panied their parents to Japan during this period or of adults who claim that their relocation was involuntary. However, the notice accompanying the publication of the final regulations noted that the Department had received sixty-one comments supporting eligibility for the minors. After considering these comments, the De­ partment determined that “the exclusionary language of the Act would preclude from eligibility the minors, as well as [the] adults, who were relocated to Japan during that particular time period.” 54 Fed. Reg. at 34,160. In a 1989 memorandum outlining the eligibility determinations, the Civil Rights Division considered the claims of the minor evacuees. The Division noted that 1 As enacted in 1988. the A ct lim ited eligibility to those o f Japanese descent T he 1992 am endm ents added language ex ten d in g eligibility to any spouse o r parent o f an individual o f Japanese descent w ho ac­ com panied her sp o u se o r child through the evacuation, internm ent, or relocation C ivil L iberties Act A m endm ents o f 1992, Pub L N o 102-371, 106 Stat. 1 i67 The question o f the eligibility of the m inor and involuntary adult relocatees was not considered o r discussed in the debates on the 1992 am endm ents. 95 O pinions o f the O ffice o f L egal C ounsel minor children were not in a position to make their own choice regarding emigra­ tion. However, in light of the language excluding any individual who relocated to Japan during the period and the lack of any expression of legislative intent to dis­ tinguish the minor relocatees from adults, the Division took the position that these minors were ineligible. Memorandum for Douglas W. Kmiec, Assistant Attorney General, Office of Legal Counsel, from James P. Turner, Acting Assistant Attorney General, Civil Rights Division at 11-12 (Feb. 27, 1989). OLC concurred in this determination without exposition. Memorandum for James P. Turner, Acting As­ sistant Attorney General, Civil Rights Division, from Douglas W. Kmiec, Assistant Attorney General, Office of Legal Counsel (Apr. 17, 1989). In litigation challenging the Division’s current eligibility standards, counsel for the plaintiffs have advanced an analysis that was not considered by the Department in 1989. In that analysis, claimants’ counsel contend that the use of the active voice in the language of the relocation exclusion provision renders the statute am­ biguous as to the eligibility of relocatees who were involuntarily returned to Japan. Given this ambiguity, counsel argue, an interpretation which allows involuntary relocatees to recover under the Act is reasonable. The Division is persuaded by this analysis and takes the position that while its original interpretation of the stat­ ute deeming involuntary relocatees ineligible was reasonable, the proposed new interpretation is equally reasonable. The proposed change in eligibility determina­ tions is thus a change in the Department’s interpretation of its own regulation. Since the language of the regulation is identical to the language of the statute, the Department would effectively be changing its interpretation of the statute as well. 2. In reviewing the Division’s proposed modification to the interpretation of the regulation, this Office’s task is to determine whether the construction adopted by the Civil Rights Division is a permissible one. As the Supreme Court stated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984): If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambigu­ ously expressed intent of Congress. If, however, the court deter­ mines Congress has not directly addressed the precise question at issue, . . . the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Id. at 842-43 (footnotes omitted). The Department cannot revise its interpretation of the Act’s eligibility exclusion if the original interpretation is mandated by the plain language of the statute. If, however, the statutory language is ambiguous and the proposed modification is reasonable, the Division’s proposed interpretation is permissible. 96 E ligibility o f Involuntary W artime R elocatees to Japan f o r Redress U nder the C ivil Liberies A ct o f 1988 3. As enacted, section 108(2)(B)(ii) of the Act expressly excludes from eligi­ bility “any individual who, during the period beginning on December 7, 1941, and ending on September 2, 1945, relocated to [another] country while the United States was at war with that country” (emphasis added). This language does not specifically address the eligibility of minor relocatees who accompanied their par­ ents, or the voluntariness of these repatriations. While the statute uses the active voice in this exclusion clause, the eligibility clauses of the statute use the passive voice. For example, section 108 begins by defining an “eligible individual” as a person of Japanese ancestry “who, during the evacuation, relocation and internment period — . . . was confined, held in custody, relocated, or otherwise deprived of liberty or property as a result of . . . [various Executive Orders and Acts].” 50 U.S.C. app. § 1989b-7(2) (emphasis added). Title II of the Act, which provides reparations to Aleuts evacuated from their home islands during World War II, similarly defines an eligible Aleut as a person “who, as a civilian, was relocated by authority of the United States from his or her home village . . . to an internment camp.” 50 U.S.C. app. § 1989c-1(5) (emphasis added). The use of the active voice in the exclusion clause suggests the possibility that Congress intended to exclude only those individuals who voluntarily relocated to an enemy country during the war. We agree that this language creates an ambiguity which provides a reasonable basis for distinguishing between voluntary relocatees, who are ineligible under the statute, and involuntary relocatees. The U.S. Courts of Appeals for the District of Columbia and the Ninth Circuits have deemed the use of the active as opposed to the passive voice relevant for purposes of statutory interpretation. Dickson v. Of­ fice o f Personnel Management, 828 F.2d 32, 37 (D.C. Cir. 1987) (isolated use of passive voice in phrase defining liability is significant and allows suit against OPM whenever an adverse determination “is made,” even if by another agency); United States v. Arrellano, 812 F.2d 1209, 1212 (9th Cir.) (clause of statute defining criminal intent phrased in active voice applies to conduct of the accused, while second clause phrased in passive voice applies only to the conduct of others), as amended, 835 F.2d 235 (9th Cir. 1987). The legislative history of the Act does not provide any insight into congres­ sional intent regarding the eligibility of involuntary relocatees. As originally intro­ duced, neither the House or the Senate bill included a relocation exclusion provision in the section defining eligible individuals. Entering conference, the House version of the Act contained the exclusion, while the Senate version had no such provision. The conferees agreed to adopt the House provision, which ex­ cluded “those individuals who, during the period from December 7, 1941, through September 2, 1945, relocated to a country at war with the United States.” H.R. Conf. Rep. No. 100-785, at 22. There is no additional discussion of the relocation 97 O pinions o f llie O ffice o f Legal C ounsel exclusion or of the circumstances surrounding the relocation of internees to Japan in the conference report.2 While the Civil Rights Division’s proposed interpretation is not the only possi­ ble interpretation of the statute, it is neither precluded by the plain language of the statute nor unreasonable. Since minor relocatees below a certain age lacked the legal capacity to consent to relocation, their relocation was involuntary per se.3 The statute does not bar the Civil Rights Division from declaring these minors eli­ gible for relief. Similarly, it is reasonable to conclude that the statute does not bar from relief claimants who can provide evidence that their relocation was in fact involuntary. Arguably, the Civil Rights Division’s proposed narrowing of the breadth of the relocation exclusion is more reasonable than its earlier interpretation. Generally, remedial statutes should be interpreted broadly to effectuate their remedial pur­ pose. Any exceptions should be interpreted narrowly. Norman J. Singer, Suther­ land Statutory Construction §60.01 (5th ed. 1992). While courts have generally held that waivers of sovereign immunity granting rights of action against the United States must be strictly construed, they “have on occasion narrowly con­ strued exceptions to waivers of sovereign immunity where that was consistent with Congress’ clear intent.” See United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992) (citing, e.g., Franchise Tax Bd. o f Calif, v. United States Postal Serv., 467 U.S. 512, 517-19 (1984) (statute authorizing Postal Service to “sue and be sued” waives immunity from orders to garnish wages issued by state administrative boards); Block v. Neal, 460 U.S. 289, 298 (1983) (plaintiff’s claim under Federal 2 T h e sole discu ssio n o f w h eth er individuals w ho w ere returned to Japan should be included in the d e fin i­ tion o f ‘‘e lig ib le in d iv id u als” is contained in tw o w itness statem ents subm itted to the H ouse and S enate su b co m m itte es co n sid erin g the legislation In testim ony o p p o sin g the enactm ent o f the bill, the A ssistant A ttorney G en eral for the C iv il D ivision, R ichard K W illard, no ted lhat as then w ritten (w ithout the re lo c a ­ tion exclu sio n ), the bread th o f the definition w o u ld cover any individual w ho had been su b ject to exclusion, relocatio n , o r in tern m en t in clu d in g persons liv in g outside the U nited States In the D epartm ent s view , this o v erlo o k ed the fact that at least several hundred o f the d etainees w ere "fanatical pro-Japanese, . . and [had] vo luntarily sought rep atriatio n to Japan after the end o f the w a r.” T he D epartm ent believed that allow ing these dislo y al individuals to receive the benefit o f the legislation would be unfair to the U nited Slates and to loyal perso n s o f Jap an ese d escen t To A ccept th e Findings a n d to Im plem ent the R ecom m endations oj the C om m issio n on W artim e R elo ca tio n and In tern m en t o f C ivilians. H earing on S 1009 B efore the Suhcom m . on F e d e ra l Services, P ost O ffice, a n d Civil S e rv ic e o f the S e n a te Com m, on G overnm ental A ffa irs, 100th C o n g , 1st Sess 281, 2 9 6 (1 9 8 7 ) (“ H earings”). R e sp o n d in g to the D e p artm e n t's objections, an o th er w itness argued that many o f these repatriates acted as they did for reasons un related to disloyalty to the U nited States, nam ely, their sheer frustration at being in c a rc erate d in prison cam p s like com m on c rim in a ls and su m m arily deprived o f their personal and c o n stitu ­ tional rig h ts H earings at 145, 196-97 (statem en t o f M ike M asaoka, representing the G o For B roke Nisei V eteran s A ssn ) N eith er o f th ese statem ents reveals, o r ev en suggests, an intention to exclude persons who in v o lu n ta rily relocated lo an enem y country. 3 Y o ung ch ild ren are not cap ab le of ex ercisin g the ju d g m e n t required to m anifest legal consent F urther­ m ore, a m in o r g enerally has no right to leave th e custody and control of his parents until he reaches m ajority or is gran ted em an cip atio n C f Pierce v S o c ie t\’ o f Sisters, 268 U S 510, 518 (1925) (p a re n ts 'c o n s titu tio n ­ ally p ro te c te d liberty in clu d es the right to d ire c t the upbringing o f their children), G im lett v G im lett, 629 P 2d 4 5 0 , 4 5 2 (W ash 1981) (upon em ancipation o r m ajority a person is released from parental authority and beco m es sui ju ris); In re L u s c ie r 's Welfare, 5 2 4 P 2d 906, 9 0 8 (W ash. 1974) (the interest o f a parent in the custo d y and control o f his m in o r child is reco g n ized as a sacred right). 98 E ligib ility o f Involuntary W artime R elocatees to Japan fo r R edress U nder the C ivil Liberies Act o f 1988 Tort Claims Act for negligent inspection not barred by exception disallowing claims for negligent misrepresentation); United States v. Yellow Cab Co., 340 U.S. 543, 554-55 (1951) (FTCA waives immunity where U.S. impleaded as third-party defendant)). The compensatory character of the Act’s grant of reparations to spe­ cific individuals of Japanese descent interned by the government is of a different nature than a general waiver of immunity in actions that will be brought by un­ known plaintiffs. It is appropriate to narrowly construe an exception to this Act. 4. There are potentially two groups of plaintiffs who would have standing to challenge the proposed modified interpretation in court. Because section 104 of the Act provides for payments to be made in order of date of birth, with no more than $500 million to be paid in any year, the newly eligible claimants could “bump” other eligible claimants, delaying or jeopardizing their payments. The age and relatively low number of minor relocatees (as estimated by the Department) make it unlikely that the minor relocatees would significantly affect the payment schedule, but the number and age of involuntary adult relocatees is harder to as­ certain.4 The second group of potential plaintiffs consists of relocatees who are unable to prove that their relocations were involuntary. This second type of chal­ lenge is more likely to focus upon the burden of proof and the definition of “voluntary” than upon the reasonableness of the Department’s interpretation of the regulation.5 It is true that a contemporaneous, consistent interpretation of a regulation or statute by the agency charged with its enforcement will be accorded the greatest deference by the courts, while “[a]n agency interpretation of a relevant provision which conflicts with the agency’s earlier interpretation is ‘entitled to considerably 4 Under ihe Act, the o rd er o f paym ent is determ ined by date o f birth, w ith the oldest eligible individuals receiving paym ent first 50 U S C app § I989b-4(b) Paym ent from the trust established by the A ct is authorized until A ugust 1998 o r until the funds appropriated are depleted. 50 U.S C. app ^ I989b-3(d) The 1992 am endm ents placed an additional $400 m illion in the trust because the D epartm ent had already located more eligible individuals than originally estim ated Estim ates o f the num ber o f m inors w ho w ere relocated to Japan vary w idely P laintiffs counsel in a suit seeking restitution paym ents for fourteen m inor relocatees cite a D epartm ent estim ate ’‘that as m any as 135 m inor children w ere relocated to Japan" w ith their parents during the w ar M em orandum for Jam es P Turner, A cting A ssistant A ttorney G eneral, C ivil Rights D ivision from G en Fujioka, A sian Law C aucus, Jim M cCabe & O w en C lem ents, M orrison & Foerster at 3-4 (Sept 22, 1993). In contrast, a w itness before the Senate relying on figures published in a m onograph by the form er director o f the W ar R elocation A uthority testified that betw een 1942 and 1946 a total o f 4724 repatriates and expatriates sailed for Japan O f this total, 1659 were alien repatriates, 1949 w ere A m erican citizens, virtually all children under 20 years o f age accom panying their alien parents, and 11 16 w ere form er A m erican citizens w ho had renounced th eir citiz en ­ ship. H earings at 197 (statem ent o f M ike M asaoka, representing the G o For Broke N isei V eterans A s s n ) (citing D illon S. M eyer, U prooted A m ericans The Japanese A m ericans and the W ar R elocation A uthority D unng W orld W ar II) A pproxim ately 75 adult relocatees have filed claim s with the O ffice o f Redress A dm inistration alleging that their relocations w ere not voluntary M em orandum for W alter D ellinger, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, from Jam es P T urner, A cting A ssistant A ttorney G eneral, C ivil Rights D ivision at 4 (M ar 16, 1994) 3 T he 1992 am endm ents require that individual claim ants receive the benefit o f the doubt w here ’‘there is an approxim ate balance o f positive and negative evidence regarding the m erits of an issue m aterial to (a] determ ination o f eligibility ' 50 U S C app & I989b-4(a)(3) 99 Opinions o f the O ffice o f L egal C ounsel less deference’ than a consistently held agency view.” INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30 (1987) (citation omitted); see also General Elec. Co. v. Gilbert, 429 U.S. 125, 143 (1976). However, in both Cardoza and General Elec­ tric, the Court concluded that the agency’s revised interpretation was in conflict with the plain language of the statute in question. The underlying rationale for judicial deference to agency interpretations is as applicable to a modified interpre­ tation of a statute as to the agency’s initial construction. See Chevron, 467 U.S. at 865 (“it is entirely appropriate” for the agency “to make . . . policy choices”). Accordingly, the Court of Appeals for the D.C. Circuit has held that the principle of deferring to an agency’s reasonable construction of an open-ended statutory provision “appliefs] equally where . . . we review modification of a previous pol­ icy.” Office o f Communication of the United Church o f Christ v. FCC, 590 F.2d 1062, 1068-69 (D.C. Cir. 1978). Cf. Phoenix Hydro Corp. v. FERC, 775 F.2d 1187, 1191 (D.C. Cir. 1985) (an administrative agency is entitled to change its prior erroneous interpretation of a statute). Conclusion The Civil Rights Division’s proposed interpretation of the regulation governing eligibility for redress payments is a reasonable interpretation of the regulation and of the Act. The language of the exclusion provision is ambiguous as to whether Congress intended to prevent involuntary relocatees from receiving restitution. The proposed interpretation does not contradict the language of the statute or the statute’s legislative history and is consistent with the strong remedial purpose un­ derlying the Act. Although there is a litigation risk associated with this modifica­ tion, it is unlikely that a court would overturn the proposed interpretation. While this modification does not require formal rulemaking procedures, it would be ad­ visable for the Department to publish a notice of the change and the underlying reasons in the Federal Register. WALTER DELLINGER Assistant Attorney General Office o f Legal Counsel 100

Write a legal research memo on the following topic.

Eligibility of Involuntary Wartime Relocatees to Japan for Redress Under the Civil Liberties Act of 1988 T h e p ro p o s e d D e p a rtm e n t o f J u s tic e change in its in te rp re ta tio n o f the C iv il L ib e rtie s A c t o f 1988 to e x te n d re d re s s u n d e r th e A c t to m inors w h o a c c o m p a n ie d th e ir p aren ts to Jap a n d u rin g W o rld W a r II a n d to a d u lts w h o a re a b le to show th a t th e ir re lo c a tio n to J a p a n d u rin g th at p e rio d w as in v o lu n ­ tary is a re a so n a b le a n d p e rm is sib le in te rp re ta tio n o f th e s ta tu te A lth o u g h an a g e n c y in te rp re ta tio n th a t has b e e n m o d ifie d o r re v e rs e d is lik e ly to re c eiv e le ss d e fe re n c e b y a re v ie w in g c o u rt th a n a c o n siste n t an d c o n te m p o ra n e o u s in te rp re ta tio n , the fact o f m o d ific a tio n d o e s n o t p re c lu d e th e c o u rt fro m g ran tin g d e fe re n c e to th e n e w in te rp reta tio n M ay 10, 1994 M e m o r a n d u m O p in io n f o r t h e A s s i s t a n t A t t o r n e y G e n e r a l C i v il R i g h t s D i v i s i o n This memorandum is in response to your request for this Office’s review of the proposed change in eligibility determinations under the Civil Liberties Act of 1988, Pub. L. No. 100-383, 102 Stat. 903 (codified at 50 U.S.C. app. § 1989 (1988)) (“the Act”). The proposed change would extend redress under the Act to minors who accompanied their parents to Japan during World War II and to adults who are able to show that their relocation to Japan during that period was involun­ tary. We conclude that the proposed change is a reasonable and permissible inter­ pretation of the statute. We also have analyzed the implications of this,change as to the deference the Department can expect from a reviewing court in the event of a challenge. An agency interpretation that has been modified or reversed is likely to receive less deference than a consistent and contemporaneous interpretation, but the fact of modification does not preclude a court from granting deference to the new inter­ pretation. 1. The Civil Liberties Act of 1988 enacts into law the recommendations of the Commission on Wartime Relocation and Internment of Civilians established by Congress in 1980. H.R. Conf. Rep. No. 100-785, at 1 (1988). The Commission submitted a unanimous report to Congress in 1983, entitled Personal Justice D e­ nied , “which extensively reviewed the history and circumstances of the decision to exclude, remove,” and ultimately to intern “Japanese Americans and Japanese resi­ dent aliens from the West Coast, as well as the treatment of the Aleuts during World War II.” Redress Provisions for Persons of Japanese Ancestry, 54 Fed. Reg. 34,157 (1989). The final part of the Commission’s report, Personal Justice Denied 2: Recommendations, concluded that these events were influenced by ra­ 94 E lig ib ility o f Involuntary W artime R elocatees to Japan f o r Redress U nder the C ivil Liberies A ct o f 1988 cial prejudice, war hysteria, and a failure of political leadership and recommended that Congress and the President take remedial action. Id. The Civil Liberties Act of 1988 was signed into law by President Reagan on August 10, 1988. The purposes of the Act are to acknowledge and apologize for the fundamental injustice of the evacuation, relocation, and internment of Japanese Americans and permanent resident aliens of Japanese ancestry; to make restitution to the individuals who were interned; and to fund a public education program to prevent the occurrence of any similar event in the future. 50 U.S.C. app. §§ 19891989a. Any “eligible individual” living on the date of enactment is entitled to a restitution payment of $20,000. 50 U.S.C. app. § 1989b-4(a)(l). The Attorney General is responsible for identifying, locating, and authorizing payment to all eligible individuals. 50 U.S.C. app. § 1989b-4. The Attorney Gen­ eral delegated the responsibilities and duties assigned by the Act to the Assistant Attorney General for Civil Rights, who created the Office of Redress Administra­ tion in the Civil Rights Division (the “Division”) to execute the duties of the De­ partment under the Act. The regulations governing eligibility and restitution were drafted in the Office of Redress Administration and published under the authority of the Department in 1989. 54 Fed. Reg. 34,157 (1989) (final rule) (codified at ,28 C.F.R. § 74). Section 108(2) of the Act defines the individuals eligible for redress payments as any United States citizen or permanent resident alien of Japanese ancestry who was evacuated, relocated, or interned during World War II.1 This provision spe­ cifically excludes from eligibility “any individual who, during the period beginning on December 7, 1941, and ending on September 2, 1945, relocated to another country while the United States was at war with that country.” 50 U.S.C. app. § 1989b-7(2) (“the relocation exclusion”). The relocation exclusion in the regula­ tions governing eligibility determinations under the Act uses precisely the same language. 28 C.F.R. § 74.4. The regulations do not specifically address the eligibility of minors who accom­ panied their parents to Japan during this period or of adults who claim that their relocation was involuntary. However, the notice accompanying the publication of the final regulations noted that the Department had received sixty-one comments supporting eligibility for the minors. After considering these comments, the De­ partment determined that “the exclusionary language of the Act would preclude from eligibility the minors, as well as [the] adults, who were relocated to Japan during that particular time period.” 54 Fed. Reg. at 34,160. In a 1989 memorandum outlining the eligibility determinations, the Civil Rights Division considered the claims of the minor evacuees. The Division noted that 1 As enacted in 1988. the A ct lim ited eligibility to those o f Japanese descent T he 1992 am endm ents added language ex ten d in g eligibility to any spouse o r parent o f an individual o f Japanese descent w ho ac­ com panied her sp o u se o r child through the evacuation, internm ent, or relocation C ivil L iberties Act A m endm ents o f 1992, Pub L N o 102-371, 106 Stat. 1 i67 The question o f the eligibility of the m inor and involuntary adult relocatees was not considered o r discussed in the debates on the 1992 am endm ents. 95 O pinions o f the O ffice o f L egal C ounsel minor children were not in a position to make their own choice regarding emigra­ tion. However, in light of the language excluding any individual who relocated to Japan during the period and the lack of any expression of legislative intent to dis­ tinguish the minor relocatees from adults, the Division took the position that these minors were ineligible. Memorandum for Douglas W. Kmiec, Assistant Attorney General, Office of Legal Counsel, from James P. Turner, Acting Assistant Attorney General, Civil Rights Division at 11-12 (Feb. 27, 1989). OLC concurred in this determination without exposition. Memorandum for James P. Turner, Acting As­ sistant Attorney General, Civil Rights Division, from Douglas W. Kmiec, Assistant Attorney General, Office of Legal Counsel (Apr. 17, 1989). In litigation challenging the Division’s current eligibility standards, counsel for the plaintiffs have advanced an analysis that was not considered by the Department in 1989. In that analysis, claimants’ counsel contend that the use of the active voice in the language of the relocation exclusion provision renders the statute am­ biguous as to the eligibility of relocatees who were involuntarily returned to Japan. Given this ambiguity, counsel argue, an interpretation which allows involuntary relocatees to recover under the Act is reasonable. The Division is persuaded by this analysis and takes the position that while its original interpretation of the stat­ ute deeming involuntary relocatees ineligible was reasonable, the proposed new interpretation is equally reasonable. The proposed change in eligibility determina­ tions is thus a change in the Department’s interpretation of its own regulation. Since the language of the regulation is identical to the language of the statute, the Department would effectively be changing its interpretation of the statute as well. 2. In reviewing the Division’s proposed modification to the interpretation of the regulation, this Office’s task is to determine whether the construction adopted by the Civil Rights Division is a permissible one. As the Supreme Court stated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984): If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambigu­ ously expressed intent of Congress. If, however, the court deter­ mines Congress has not directly addressed the precise question at issue, . . . the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Id. at 842-43 (footnotes omitted). The Department cannot revise its interpretation of the Act’s eligibility exclusion if the original interpretation is mandated by the plain language of the statute. If, however, the statutory language is ambiguous and the proposed modification is reasonable, the Division’s proposed interpretation is permissible. 96 E ligibility o f Involuntary W artime R elocatees to Japan f o r Redress U nder the C ivil Liberies A ct o f 1988 3. As enacted, section 108(2)(B)(ii) of the Act expressly excludes from eligi­ bility “any individual who, during the period beginning on December 7, 1941, and ending on September 2, 1945, relocated to [another] country while the United States was at war with that country” (emphasis added). This language does not specifically address the eligibility of minor relocatees who accompanied their par­ ents, or the voluntariness of these repatriations. While the statute uses the active voice in this exclusion clause, the eligibility clauses of the statute use the passive voice. For example, section 108 begins by defining an “eligible individual” as a person of Japanese ancestry “who, during the evacuation, relocation and internment period — . . . was confined, held in custody, relocated, or otherwise deprived of liberty or property as a result of . . . [various Executive Orders and Acts].” 50 U.S.C. app. § 1989b-7(2) (emphasis added). Title II of the Act, which provides reparations to Aleuts evacuated from their home islands during World War II, similarly defines an eligible Aleut as a person “who, as a civilian, was relocated by authority of the United States from his or her home village . . . to an internment camp.” 50 U.S.C. app. § 1989c-1(5) (emphasis added). The use of the active voice in the exclusion clause suggests the possibility that Congress intended to exclude only those individuals who voluntarily relocated to an enemy country during the war. We agree that this language creates an ambiguity which provides a reasonable basis for distinguishing between voluntary relocatees, who are ineligible under the statute, and involuntary relocatees. The U.S. Courts of Appeals for the District of Columbia and the Ninth Circuits have deemed the use of the active as opposed to the passive voice relevant for purposes of statutory interpretation. Dickson v. Of­ fice o f Personnel Management, 828 F.2d 32, 37 (D.C. Cir. 1987) (isolated use of passive voice in phrase defining liability is significant and allows suit against OPM whenever an adverse determination “is made,” even if by another agency); United States v. Arrellano, 812 F.2d 1209, 1212 (9th Cir.) (clause of statute defining criminal intent phrased in active voice applies to conduct of the accused, while second clause phrased in passive voice applies only to the conduct of others), as amended, 835 F.2d 235 (9th Cir. 1987). The legislative history of the Act does not provide any insight into congres­ sional intent regarding the eligibility of involuntary relocatees. As originally intro­ duced, neither the House or the Senate bill included a relocation exclusion provision in the section defining eligible individuals. Entering conference, the House version of the Act contained the exclusion, while the Senate version had no such provision. The conferees agreed to adopt the House provision, which ex­ cluded “those individuals who, during the period from December 7, 1941, through September 2, 1945, relocated to a country at war with the United States.” H.R. Conf. Rep. No. 100-785, at 22. There is no additional discussion of the relocation 97 O pinions o f llie O ffice o f Legal C ounsel exclusion or of the circumstances surrounding the relocation of internees to Japan in the conference report.2 While the Civil Rights Division’s proposed interpretation is not the only possi­ ble interpretation of the statute, it is neither precluded by the plain language of the statute nor unreasonable. Since minor relocatees below a certain age lacked the legal capacity to consent to relocation, their relocation was involuntary per se.3 The statute does not bar the Civil Rights Division from declaring these minors eli­ gible for relief. Similarly, it is reasonable to conclude that the statute does not bar from relief claimants who can provide evidence that their relocation was in fact involuntary. Arguably, the Civil Rights Division’s proposed narrowing of the breadth of the relocation exclusion is more reasonable than its earlier interpretation. Generally, remedial statutes should be interpreted broadly to effectuate their remedial pur­ pose. Any exceptions should be interpreted narrowly. Norman J. Singer, Suther­ land Statutory Construction §60.01 (5th ed. 1992). While courts have generally held that waivers of sovereign immunity granting rights of action against the United States must be strictly construed, they “have on occasion narrowly con­ strued exceptions to waivers of sovereign immunity where that was consistent with Congress’ clear intent.” See United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992) (citing, e.g., Franchise Tax Bd. o f Calif, v. United States Postal Serv., 467 U.S. 512, 517-19 (1984) (statute authorizing Postal Service to “sue and be sued” waives immunity from orders to garnish wages issued by state administrative boards); Block v. Neal, 460 U.S. 289, 298 (1983) (plaintiff’s claim under Federal 2 T h e sole discu ssio n o f w h eth er individuals w ho w ere returned to Japan should be included in the d e fin i­ tion o f ‘‘e lig ib le in d iv id u als” is contained in tw o w itness statem ents subm itted to the H ouse and S enate su b co m m itte es co n sid erin g the legislation In testim ony o p p o sin g the enactm ent o f the bill, the A ssistant A ttorney G en eral for the C iv il D ivision, R ichard K W illard, no ted lhat as then w ritten (w ithout the re lo c a ­ tion exclu sio n ), the bread th o f the definition w o u ld cover any individual w ho had been su b ject to exclusion, relocatio n , o r in tern m en t in clu d in g persons liv in g outside the U nited States In the D epartm ent s view , this o v erlo o k ed the fact that at least several hundred o f the d etainees w ere "fanatical pro-Japanese, . . and [had] vo luntarily sought rep atriatio n to Japan after the end o f the w a r.” T he D epartm ent believed that allow ing these dislo y al individuals to receive the benefit o f the legislation would be unfair to the U nited Slates and to loyal perso n s o f Jap an ese d escen t To A ccept th e Findings a n d to Im plem ent the R ecom m endations oj the C om m issio n on W artim e R elo ca tio n and In tern m en t o f C ivilians. H earing on S 1009 B efore the Suhcom m . on F e d e ra l Services, P ost O ffice, a n d Civil S e rv ic e o f the S e n a te Com m, on G overnm ental A ffa irs, 100th C o n g , 1st Sess 281, 2 9 6 (1 9 8 7 ) (“ H earings”). R e sp o n d in g to the D e p artm e n t's objections, an o th er w itness argued that many o f these repatriates acted as they did for reasons un related to disloyalty to the U nited States, nam ely, their sheer frustration at being in c a rc erate d in prison cam p s like com m on c rim in a ls and su m m arily deprived o f their personal and c o n stitu ­ tional rig h ts H earings at 145, 196-97 (statem en t o f M ike M asaoka, representing the G o For B roke Nisei V eteran s A ssn ) N eith er o f th ese statem ents reveals, o r ev en suggests, an intention to exclude persons who in v o lu n ta rily relocated lo an enem y country. 3 Y o ung ch ild ren are not cap ab le of ex ercisin g the ju d g m e n t required to m anifest legal consent F urther­ m ore, a m in o r g enerally has no right to leave th e custody and control of his parents until he reaches m ajority or is gran ted em an cip atio n C f Pierce v S o c ie t\’ o f Sisters, 268 U S 510, 518 (1925) (p a re n ts 'c o n s titu tio n ­ ally p ro te c te d liberty in clu d es the right to d ire c t the upbringing o f their children), G im lett v G im lett, 629 P 2d 4 5 0 , 4 5 2 (W ash 1981) (upon em ancipation o r m ajority a person is released from parental authority and beco m es sui ju ris); In re L u s c ie r 's Welfare, 5 2 4 P 2d 906, 9 0 8 (W ash. 1974) (the interest o f a parent in the custo d y and control o f his m in o r child is reco g n ized as a sacred right). 98 E ligib ility o f Involuntary W artime R elocatees to Japan fo r R edress U nder the C ivil Liberies Act o f 1988 Tort Claims Act for negligent inspection not barred by exception disallowing claims for negligent misrepresentation); United States v. Yellow Cab Co., 340 U.S. 543, 554-55 (1951) (FTCA waives immunity where U.S. impleaded as third-party defendant)). The compensatory character of the Act’s grant of reparations to spe­ cific individuals of Japanese descent interned by the government is of a different nature than a general waiver of immunity in actions that will be brought by un­ known plaintiffs. It is appropriate to narrowly construe an exception to this Act. 4. There are potentially two groups of plaintiffs who would have standing to challenge the proposed modified interpretation in court. Because section 104 of the Act provides for payments to be made in order of date of birth, with no more than $500 million to be paid in any year, the newly eligible claimants could “bump” other eligible claimants, delaying or jeopardizing their payments. The age and relatively low number of minor relocatees (as estimated by the Department) make it unlikely that the minor relocatees would significantly affect the payment schedule, but the number and age of involuntary adult relocatees is harder to as­ certain.4 The second group of potential plaintiffs consists of relocatees who are unable to prove that their relocations were involuntary. This second type of chal­ lenge is more likely to focus upon the burden of proof and the definition of “voluntary” than upon the reasonableness of the Department’s interpretation of the regulation.5 It is true that a contemporaneous, consistent interpretation of a regulation or statute by the agency charged with its enforcement will be accorded the greatest deference by the courts, while “[a]n agency interpretation of a relevant provision which conflicts with the agency’s earlier interpretation is ‘entitled to considerably 4 Under ihe Act, the o rd er o f paym ent is determ ined by date o f birth, w ith the oldest eligible individuals receiving paym ent first 50 U S C app § I989b-4(b) Paym ent from the trust established by the A ct is authorized until A ugust 1998 o r until the funds appropriated are depleted. 50 U.S C. app ^ I989b-3(d) The 1992 am endm ents placed an additional $400 m illion in the trust because the D epartm ent had already located more eligible individuals than originally estim ated Estim ates o f the num ber o f m inors w ho w ere relocated to Japan vary w idely P laintiffs counsel in a suit seeking restitution paym ents for fourteen m inor relocatees cite a D epartm ent estim ate ’‘that as m any as 135 m inor children w ere relocated to Japan" w ith their parents during the w ar M em orandum for Jam es P Turner, A cting A ssistant A ttorney G eneral, C ivil Rights D ivision from G en Fujioka, A sian Law C aucus, Jim M cCabe & O w en C lem ents, M orrison & Foerster at 3-4 (Sept 22, 1993). In contrast, a w itness before the Senate relying on figures published in a m onograph by the form er director o f the W ar R elocation A uthority testified that betw een 1942 and 1946 a total o f 4724 repatriates and expatriates sailed for Japan O f this total, 1659 were alien repatriates, 1949 w ere A m erican citizens, virtually all children under 20 years o f age accom panying their alien parents, and 11 16 w ere form er A m erican citizens w ho had renounced th eir citiz en ­ ship. H earings at 197 (statem ent o f M ike M asaoka, representing the G o For Broke N isei V eterans A s s n ) (citing D illon S. M eyer, U prooted A m ericans The Japanese A m ericans and the W ar R elocation A uthority D unng W orld W ar II) A pproxim ately 75 adult relocatees have filed claim s with the O ffice o f Redress A dm inistration alleging that their relocations w ere not voluntary M em orandum for W alter D ellinger, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, from Jam es P T urner, A cting A ssistant A ttorney G eneral, C ivil Rights D ivision at 4 (M ar 16, 1994) 3 T he 1992 am endm ents require that individual claim ants receive the benefit o f the doubt w here ’‘there is an approxim ate balance o f positive and negative evidence regarding the m erits of an issue m aterial to (a] determ ination o f eligibility ' 50 U S C app & I989b-4(a)(3) 99 Opinions o f the O ffice o f L egal C ounsel less deference’ than a consistently held agency view.” INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30 (1987) (citation omitted); see also General Elec. Co. v. Gilbert, 429 U.S. 125, 143 (1976). However, in both Cardoza and General Elec­ tric, the Court concluded that the agency’s revised interpretation was in conflict with the plain language of the statute in question. The underlying rationale for judicial deference to agency interpretations is as applicable to a modified interpre­ tation of a statute as to the agency’s initial construction. See Chevron, 467 U.S. at 865 (“it is entirely appropriate” for the agency “to make . . . policy choices”). Accordingly, the Court of Appeals for the D.C. Circuit has held that the principle of deferring to an agency’s reasonable construction of an open-ended statutory provision “appliefs] equally where . . . we review modification of a previous pol­ icy.” Office o f Communication of the United Church o f Christ v. FCC, 590 F.2d 1062, 1068-69 (D.C. Cir. 1978). Cf. Phoenix Hydro Corp. v. FERC, 775 F.2d 1187, 1191 (D.C. Cir. 1985) (an administrative agency is entitled to change its prior erroneous interpretation of a statute). Conclusion The Civil Rights Division’s proposed interpretation of the regulation governing eligibility for redress payments is a reasonable interpretation of the regulation and of the Act. The language of the exclusion provision is ambiguous as to whether Congress intended to prevent involuntary relocatees from receiving restitution. The proposed interpretation does not contradict the language of the statute or the statute’s legislative history and is consistent with the strong remedial purpose un­ derlying the Act. Although there is a litigation risk associated with this modifica­ tion, it is unlikely that a court would overturn the proposed interpretation. While this modification does not require formal rulemaking procedures, it would be ad­ visable for the Department to publish a notice of the change and the underlying reasons in the Federal Register. WALTER DELLINGER Assistant Attorney General Office o f Legal Counsel 100

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Presidential Authority to Make Recess Appointments While Incumbents Hold Over The President may make recess appointments to the Interstate Commerce Commission and to the Board of Directors of the Reconstruction Finance Corporation while members of those entities continue to serve in office under holdover statutes. October 2, 1950 MEMORANDUM FOR THE DIRECTOR OF PERSONNEL RECONSTRUCTION FINANCE CORPORATION* You request information as to whether the President may make recess appointments to the Interstate Commerce Commission and the Board of Directors of the Reconstruction Finance Corporation in cases in which incumbents are still serving under provisions of law which permit them to continue to serve until their successors are appointed and qualified. The appointment, term, and qualifications of a member of the Interstate Commerce Commission are governed by the provisions of section 11 of title 49 of the United States Code (1946). That section provides for terms of office of seven years and that “[u]pon the expiration of his term of office a Commissioner shall continue to serve until his successor is appointed and shall have qualified.” The appointment, qualifications, and tenure of directors of the Reconstruction Finance Corporation, appointed on and after July 1, 1950, are controlled by 15 U.S.C. § 602 (1946 Supp. II) (codifying Act of May 25, 1948, Pub. L. No. 80-548, § 2, 62 Stat. 261, 262), which provides that the terms of the directors in office when the Act of May 25, 1948 was enacted shall be extended until June 30, 1950, and also provides, after initial staggered appointments, for terms of three years, “but they may continue in office until their successors are appointed and qualified.” Present incumbents now holding over, however, were appointed under a previous statute (15 U.S.C. § 603 (1946) (codifying Pub. L. No. 72-2, § 3, 47 Stat. 5, 5–6 (Jan. 22, 1932)), which provided that “[t]he terms of the directors appointed by the President of the United States shall be two years and run from January 22, 1932, and until their successors are appointed and qualified.” The authority of the President to make recess appointments is found in Article II, Section 2, Clause 3 of the Constitution, which provides that “[t]he President * Editor’s Note: This memorandum was addressed to “the Honorable Donald S. Dawson,” without indication of his office or title. At the time of this opinion, it appears that Mr. Dawson was serving as Director of Personnel for the Reconstruction Finance Corporation—an inference supported by the fact that the opinion addresses recess appointments to the Board of Directors of the Reconstruction Finance Corporation. See Wolfgang Saxon, Donald Dawson, 97, Dies; Master of Truman Whistle-Stop, N.Y. Times, Dec. 29, 2005, at A25, available at http://www.nytimes.com/2005/12/29/politics/29DAWSON. html (last visited Aug. 24, 2012). 464 Presidential Authority to Make Recess Appointments While Incumbents Hold Over shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” A number of decisions in the state courts have dealt with the question whether expiration of the prescribed term, in the case of an officer authorized to hold over until his successor is appointed and qualified, creates a vacancy. The decisions have not been uniform as there are holdings both ways. No decision under the applicable provision of the federal Constitution has been found. In a number of instances involving United States Marshals and United States Attorneys affected by “hold over” provisions, recess appointments have been given upon expiration of the prescribed term without, apparently, any formal removal or resignation of the incumbent. See Memorandum for the Attorney General, from George C. Todd, Assistant to the Attorney General, D.J. File No. 175,594 (Dec. 21, 1914). These officers, by express provision of the law, hold over until their successors are appointed and qualified. The question does not appear to have been raised, however, as to whether a formal removal was necessary. The President has removal authority with respect to a Director of the Reconstruction Finance Corporation, who appears to be clearly an administrative officer in the Executive Branch. Myers v. United States, 272 U.S. 52 (1926). Members of the Interstate Commerce Commission, however, can probably be removed only “for inefficiency, neglect of duty, or malfeasance in office.” 49 U.S.C. § 11; see also Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935); Power of the President to Remove Members of the Tennessee Valley Authority from Office, 39 Op. Att’y Gen. 145 (1938) (Jackson, A.G.). Thus, at least insofar as the Reconstruction Finance Corporation is concerned, there is an analogy with the case of United States Marshals. The Attorney General in District Attorney—Temporary Appointment, 16 Op. Att’y Gen. 538 (1880) (Devens, A.G.), held that the President might make a recess appointment to the office of United States Attorney even though the appointee of the court as United States Attorney held the office. He stated that The authority given to fill the office to the circuit justice is an authority only to fill it until action is taken by the President. The office in no respect ceases to be vacant in the sense of the Constitution because of this appointment, for the reason that the appointment itself contemplates only a temporary mode of having the duties of the office performed . . . . Id. at 539–40. Likewise it may be said with respect to the commissioners of the Interstate Commerce Commission that where they hold over under the statute after their regular term, it is contemplated that such a holdover is only a temporary mode of having the duties of the position performed and a vacancy does exist in 465 Supplemental Opinions of the Office of Legal Counsel in Volume 1 the sense of the Constitution. Indeed, the statutory authorization for an incumbent to remain in office after the expiration of his term undoubtedly was provided for the purpose of insuring that the duties of such important offices would not go unattended, and obviously was not designed to nullify the provisions of law with respect to the terms of such offices. If the expiration of the term of the individual holding the office does not create a vacancy in the office, it would seem that the President could not, without first removing the incumbent, send to the Senate a nomination for the office.* Such, of course, is not the case and the President frequently sends to the Senate a nomination for an office occupied by an incumbent whose term has expired. To hold that there is no vacancy, merely because the incumbent, whose term has expired, is continuing to serve under statutory authority, would lead to the result that no nomination or appointment could be made until the incumbent resigned or died. Such a conclusion would render entirely meaningless the express statutory provisions which limit the terms of the offices in question to a specified number of years, and obviously is unsound. In a memorandum for the Attorney General by the Assistant to the Attorney General George C. Todd of December 21, 1914, the question here under consideration was discussed and the conclusion reached that there is a vacancy in office for the purpose of a recess appointment under the circumstances indicated, as set forth in the memorandum: John Lord O’Brian was appointed on March 4, 1909 for four years and until his successor should qualify. On December 1, 1914, the Senate being then in recess, the President appointed Mr. Lynn by a commission expiring at the end of the present session of the Senate. Mr. Lynn qualified on December 2, 1914. On December 7, 1914, the Senate convened, and on December 9, 1914, Mr. Lynn was nominated for a full term. On December 14, 1914, the Senate rejected the nomination. The questions are: 1. In view of the fact that Mr. Lynn’s predecessor did not resign and was not removed, but ceased to be District Attorney only be reason of the appointment and qualification of his successor, was there any “vacancy” within the meaning of the provision of the Constitution authorizing the President to “fill up all vacancies that may happen during the recess of the Senate?” * Editor’s Note: In Nominations for Prospective Vacancies on the Supreme Court, 10 Op. O.L.C. 108, 109 (1986), the Office reached a different conclusion, stating that “as a constitutional matter, nothing precludes the nomination and confirmation of a successor while the incumbent still holds office.” 466 Presidential Authority to Make Recess Appointments While Incumbents Hold Over This objection to Mr. Lynn’s appointment would seem to be overrefined. Mr. O’Brian held office subject to the absolute power of the removal of the President. [In re Hennen, 38 U.S. (13 Pet.) 230, 259 (1839); Blake v. United States, 103 U.S. (13 Otto) 227 (1880); Parsons v. United States, 167 U.S. 324 (1897); Shurtleff v. United States, 189 U.S. 311 (1903).] The reasonable view would be that the action of the President in appointing a successor ipso facto created a vacancy in the office. It was equivalent to a removal. Mr. Todd in this memorandum refers in supporting his conclusion to In re Marshalship, 20 F. 379 (M.D. Ala. 1884), and to an opinion of the Comptroller of the Treasury, 5 Comp. Gen. 594 (1926). In conclusion, it would appear that the President’s power to make recess appointments exists with respect to the positions here under consideration.* PEYTON FORD Deputy Attorney General * Editor’s Note: Apart from the sentence identified in the previous Editor’s Note, the Office continues to take the position articulated in this opinion. See Memorandum for Robert G. Damus, General Counsel, Office of Management and Budget, from Beth Nolan, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Reporting Obligation under the Federal Vacancies Reform Act for PAS Officers Serving Under Statutory Holdover Provisions (July 30, 1999) (“As a matter of constitutional law, the executive branch consistently has taken the position that there is a vacancy for purposes of the Recess Appointments Clause when an appointment for a term of years expires and the officer continues serving under a holdover provision”). Federal courts, however, have taken conflicting positions on the issue. Compare Staebler v. Carter, 464 F. Supp. 585, 589 (D.D.C. 1979) (upholding recess appointment to position on Federal Election Commission still occupied by incumbent, on ground that expiration of incumbent’s formal statutory term created immediate vacancy), with Wilkinson v. Legal Servs. Corp., 865 F. Supp. 891, 900 (D.D.C. 1994) (invalidating termination of inspector general by recess appointees on Board of Directors of Legal Services Corporation, on grounds that holdover provision in Legal Services Corporation Act was mandatory and that Board positions were therefore not vacant at time of recess appointments), rev’d on other grounds, 80 F.3d 535 (D.C. Cir. 1996); Mackie v. Clinton, 827 F. Supp. 56, 58 (D.D.C. 1993), vacated as moot, Nos. 93-5287, 93-5289, 1994 WL 163761 (D.C. Cir.) (per curiam) (invalidating recess appointment to position on Postal Service Board of Governors still occupied by incumbent, on ground that statute entitled incumbent to hold position for one year after expiration of formal term). In Swan v. Clinton, 100 F.3d 973, 986 (1996), the D.C. Circuit refused to infer tenure protection for holdover members of the National Credit Union Administration “absent clear evidence that this was Congress’ intent,” because doing so would “preclude[] the President from exercising [the] constitutionally granted power” of recess appointment. 467

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Extension of District Court Jurisdiction Under § 1110 of the Federal Aviation Act Section 1110 of the Federal Aviation A ct authorizes the President to extend that A ct to areas outside the United States, but does not authorize an analogous extension o f the geographic jurisdiction of a district court for purposes o f enforcing certain o f the A ct’s provisions. An executive o rd er extending the Act to the Trust Territory o f the Pacific Islands (T T PI) would make its provisions part of the law of the T TPI, and enforceable through the T T P I judicial system. August 27, 1981 MEMORANDUM OPINION FOR TH E ASSISTANT CHIEF COUNSEL, FEDERAL AVIATION ADMINISTRATION This responds to your request for the guidance of this Office on the question whether the President has authority under § 1110 of the Fed­ eral Aviation Act of 1958, as amended (49 U.S.C. § 1510) (Act), to extend by executive order a judicial district of the United States in support of a geographical extension of the Act by executive order. You understand that our response to your inquiry was delayed in view of the difficulties you had in ascertaining the manner under which similar problems were solved under Executive Order No. 11,326, 3 C.F.R. 617 (1966-1970 Comp.), which extended parts of the Federal Aviation Act to the Ryukyu Islands. We have been advised now that the issue did not arise at that time because the provisions of the Federal Aviation Act under which this problem becomes critical were not extended to the Ryukyu Islands. Section 1110 of the Federal Aviation Act, 49 U.S.C. § 1510, provides: Whenever the President determines that such action would be in the national interest, he may, to the extent, in the manner, and for such periods of time as he may consider necessary, extend the application of this Act to any areas of land or water outside of the United States and the overlying airspace thereof in which the Federal Government of the United States, under international treaty, agreement or other lawful arrangement has the necessary legal authority to take such action. Under the authority of this section, Titles III and XII of the Act already have been extended by Executive Order No. 10,854, 3 C.F.R. 276 389 (1959-1963 Comp.), “to those areas of land or water outside the United States and the overlying airspace thereof over or in which the Federal Government of the United States . . . has appropriate jurisdic­ tion and control.” This definition, as pointed out in your memorandum, includes the Trust Territory of the Pacific Islands (TTPI). It is now contemplated to extend most of the titles of the Act to the TTPI in order to enable aircraft owned by citizens of the Micronesian entities to be registered in the United States. Your agency feels that such exten­ sion of the Act to the TTPI is feasible only if the Act and the regulations of the Federal Aviation Administration can be fully en­ forced with respect to persons located in the violations occurring in the TTPI. The Act provides for its enforcement largely through civil and crimi­ nal proceedings in the district courts in which the offense or violations are committed, or where the person committing a violation of the Act carries on his business. §§ 903, 904, 1007 (49 U.S.C. §§ 1473, 1474, 1487). Because the TTPI is not within any federal judicial district, the question arises how the Act can be effectively enforced in the T T P I.1 This gives rise to the question whether the President’s authority under § 1110 of the Act includes the power both to extend the Act to areas outside the United States and the power to extend the geographic jurisdiction of a district court to an area outside the United States to which the Act has been made applicable. In our view this question must be answered in the negative. The jurisdiction of the federal district courts is purely statutory. Section 1110 does not expressly confer on the President the power to extend the geographical jurisdiction of the district courts, and such power is not easily implied from the language of that section. Moreover, it cannot be said that this power follows by necessary implication because §1110 would be nugatory in the absence of a judicial forum in which the extension of the Act could be enforced. The experience of Execu­ tive Order Nos. 10,854 and 11,326 shows that some titles of the Act can be extended without a concomitant extension of the jurisdiction of a federal court. In addition, § 903(a) provides for a forum for some violations of the Act outside the United States. See supra note 1. Our conclusion that § 1110 of the Act does not confer on the Presi­ dent the power to enlarge the geographic jurisdiction of a federal district court, however, does not mean that there is no available means of enforcing the provisions of the Act in the event it is extended to the 1Section 903 provides that where an “offense is committed out o f the jurisdiction of any particular State o r district, the trial shall be in the district where the offender. . . is arrested or is first brought ” This provision does not appear to be sufficiently effective in the case o f non-resident aliens. 277 TTPI. According to § 101(2) of Title I of the Trust Territory Code (1970): (2) such laws of the United States, as shall, by their own force, be in effect in the Trust Territory, including the Executive Orders o f the President and orders of the Sec­ retary of the Interior have the effect of law in the TTPI. An executive order extending the Act to the TT PI therefore would be a part of the law of the TTPI and judicially enforceable there. However, since the judicial system of the TT PI is controlled by orders of the Secretary of the Interior, we would suggest that you consult with the Office of the Solicitor of the Interior on the best method of conferring enforcement jurisdiction on the TTPI High Court. L a r r y L . S im m s Deputy Assistant Attorney General Office o f Legal Counsel 278

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Authority of Senate Committee Staff to Depose Executive Branch Officers There is no authority in the rules o f the Senate, o r in relevant statutes, for the Senate C om m ittee on Labor and Hum an Resources to direct its sta ff to depose certain Executive Branch officials. R ecent practice establishes that such depositions m ay be taken by Senate com m ittee staff only w hen sp ecifically auth o rized by a resolution o f the full Senate in connection w ith a p a rtic u la r investigation. August 4, 1982 MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL This responds to your request for our opinion whether the Senate Committee on Labor and Human Resources may, without specific authority conferred by a resolution adopted by the Senate, authorize its staff to take depositions of Executive Branch officials in the course of that Committee’s inquiry into the confirmation of Secretary [of Labor Raymond J.] Donovan. On July 22, 1982, the Senate Committee on Labor and Human Resources adopted a resolution authorizing an investigation into whether “ the Committee received full, complete and timely disclosure of all information in the [Donovan] confirmation [proceedings].” On the afternoon of July 29,1982, Messrs. Francis M. Mullen, formerly Executive Assistant Director of the FBI, FBI Special Agent Anthony Adamski, Jr., and Fred F. Fielding, Counsel to the President, received Notices of Deposition purporting to require them to appear for depositions at 7:30 a.m. on August 3, 6, and 9, 1982, respectively. Each Notice of Deposition states that it is authorized “ pursuant to Committee resolution and the Committee rules. . . .” We have examined the Committee resolution and rules, and, in addition, the Standing Rules of the Senate, the Standing Orders and Resolutions Affecting the Business of the Senate, and relevant statutes and have found no authority, express or implied, for the depositions which are demanded of Messrs. Mullen, Adamski, and Fielding. I. The Committee’s Rules of Procedure The Rules of Procedure of the Committee, which are attached to each of the Notices of Deposition, do not authorize the taking of depositions. In fact, the word “ deposition” nowhere appears in the rules of the Committee, and no 503 language appears in the rules from which power in the staff to take depositions could reasonably be inferred.1 II. The Committee’s Resolution The Committee’s resolution o f July 22, 1982, purports to authorize swom depositions “ anywhere in the continental United States” to be taken by Commit­ tee staff members, provided only that a Senator be present when the deposition commences. The resolution states that “ under Senate rule XXVI and section 1364(a) of title 28, United States Code, a committee may authorize the issuance of subpoenas and the taking of depositions. . . .” No other authority for taking depositions is cited in the resolution. Rule XXVI governs Senate com m ittee and subcommittee procedure. It provides broad authority to conduct hearings, to take testimony, to require “ by subpena or otherwise” the attendance of witnesses, and to conduct investiga­ tions. Yet nowhere in the rule is there language expressly or implicitly authoriz­ ing the taking of depositions by committee staff. As with the rules of the Committee itself, the word “deposition” nowhere appears in Senate Rule XXVI. Indeed, none of the Standing Rules of the Senate contain so much as a single reference to depositions. The statutory provision cited by the resolution, 28 U.S.C. § 1364(a) (Supp. V 1981) added by Pub. L. No. 95-521,92 Stat. 1879, establishes jurisdiction in the United States District Court for the District of Columbia to hear certain civil actions brought by the Senate Legal Counsel, including actions to require compliance with an order of a committee seeking answers to “ any deposition or interrogatory.” This provision, however, is by its express language inapplicable to the taking of depositions of Executive Branch officials: This section shall not apply to an action to enforce, to secure a declaratory judgment concerning the validity of, or to prevent a threatened refusal to comply with, any subpena or order issued to an officer or employee of the Federal Government acting within his official capacity. 28 U .S.C . § 1364(a); see S. Rep. No. 170, 95th Cong., 2d Sess. 89 (1977) (this section does not apply to Executive Branch officers). We are unaware of any other statutory provision authorizing the taking of depositions by Senate committee staff. We have examined the Standing Orders and Resolutions of the Senate set out in the Senate Manual, S. Doc. No. 1, 96th Cong., IstSess., and have discovered no general standing authority for the taking of depositions by the staff of a Senate committee. It thus appears that the Committee’s resolution purporting to autho­ rize the taking of depositions by its staff was entirely without legal basis in statute or Senate rule. 1 We note that if the C om m ittee’s rules provided for the taking of depositions of Executive Branch officials by C ommittee staff, such a provision might well establish customary practice of the Committee, it would not, however, establish a source of power for the adoption of the provision itself. 504 III. The Flannery Memorandum On July 12, 1982, John P. Flannery II, Special Counsel to the Labor Commit­ tee, and George Pritts, the Committee’s Chief Counsel, addressed to the mem­ bers of the Committee a memorandum concerning the resolution which was eventually adopted on July 22. The bulk of that memorandum discusses the nature and advantages of deposing witnesses prior to holding any public hear­ ings. The memorandum informed the members as follows regarding the au­ thority for the staff’s taking depositions: As you may not be familiar with Senate staff depositions, a few explanatory remarks about their history and use follow. Senate staff depositions, first authorized in 1928,* and expressly provided for by statute,* * have been used in recent Congressional investigations.*** They are similar to the depositions of a nonparty witness in a civil case.**** * S. Res. 118, 70th Congress, 1st Session. ** Title 28, United States Code, Section 1364(a). *** See H. Res. 803, 93rd Congress (House Judiciary Commit­ tee, during impeachment investigation for Richard Nixon); H. Res. 222, 95th Congress (House Select Committee on Assassina­ tions); S. Res. 495, 96th Congress, 2nd Session (Senate Billy C arter inquiry); S. Res. 4, 95th C ongress, 1st Session §§ 104(c)(1)(G) (Aging Committee), 105(c)(1)(G) (Indian Af­ fairs), 106(b)(7) (Nutrition); S. Res. 400, 94th Congress, 2nd Session, § 5(a)(7) (Intelligence). **** See Rule 30 of the Federal Rules of Civil Procedure. This statement of authority is without any foundation in the law for the following reasons: (A) S. Res. 118 was passed in 1928 and provides: Resolved, That the President of the Senate be, and he hereby is, authorized, on the request of the chairman of any of the commit­ tees of the Senate, to issue commissions to take testimony within the United States or elsewhere. 69 Cong. Rec. 1926 (1928). This resolution provides authorization only for the President of the Senate (i.e., the Vice President of the United States) to commis­ sion the taking of testimony; it provides no authority for the staff of committees to take testimony simply on the strength of a committee resolution. Further, it provides no basis for committee staff to take depositions of Executive Branch officials.2 2 We note that S Res 118 may not represent a current source of authonty for committees of the Senate to take “ testimony” outside Washington The Resolution does not appear in the Senate Manual, and there is nothing in the Flannery memorandum suggesting that that Resolution is not in a state of desuetude. In addition, assuming arguendo that the Resolution could be read to authorize the taking of testimony from Executive Branch officials, it implicitly recognizes the sensitivity of Senate committee requests for testimony of Executive Branch officials by providing that the Vice President, a member of the Executive Branch, must authorize all such requests 505 (B ) Section 1364(a) of Title 28, U.S. Code, simply does not stand from the proposition cited. As stated above, § 1364 on its face does not apply to commit­ tee subpoenas or orders directed to Executive Branch officers. (C) The five prior House and Senate resolutions authorizing the taking of depositions by the staff of various committees in no way provides authority for the taking of depositions by the staff of the Senate Committee on Labor and Human Resources because—among other reasons— none of the cited resolutions authorized action by this Committee or its staff, nor are they phrased in language that is even arguably applicable to Senate committees generally. On the contrary, the recent historical practice established by these five resolutions is that deposi­ tions may be taken by the staff of Senate committees only when expressly authorized by a resolution of the full Senate in connection with a particular investigation, not by a simple resolution adopted by a Senate committee sua sponte. (D ) Finally, Rule 30 of the Federal Rules of Civil Procedure lends no support to the committee resolution at issue here, since that rule applies only “ after commencement of [a civil] action” in the courts of the United States. Needless to say, it provides no authority, express or implied, for depositions to be taken by Senate committee staff. IV. Conclusion On the basis of the references relied upon in the Committee material available to us, we find no authority for the compelled deposition of Messrs. Mullen, Adamski, and Fielding. In addition, our research into the Standing Rules of the Senate has uncovered no authority that would support the deposition power asserted in the Committee Resolution. Finally, the more recent precedents relied upon in the Committee material suggest quite strongly that older precedents which may be supportive of such standing committee power, even if they exist, have been abandoned in favor of passage of Senate resolutions authorizing the taking of depositions by committee staff in specific circumstances. At least until some more persuasive precedents are proffered, however, we are firmly con­ vinced that there is no support in law or Senate rules for the staff of the Senate Committee on Labor and Human Resources to take the depositions of Executive Branch officials.3 T heodore B. O lson Assistant Attorney General Office c f Legal Counsel 3 Although this opinion is confined to the facts presented, we would emphasize that we have found no plenary authority for the taking o f depositions of even private persons by the staff of Senate committees absent a specific resolution passed by the Senate authonzing such action W hether an established practice as regards deposing of private persons would, w ithout more, legitimate the deposing of Executive Branch officials is doubtful, given the co-equal status o f the Legislative and Executive Branches under our Constitution. 506

Write a legal research memo on the following topic.

Enforcement by Federal Magistrates of Summonses Issued by the Federal Bureau of Investigation in Aid of Criminal Investigations and Foreign Intelligence Activities Certain proposed legislation would have granted the Federal Bureau of Investigation pow er to issue sum m onses ordering the production of physical and documentary evidence in aid of federal crim inal investigations and foreign intelligence activities. A provision of that legisla­ tion allowing United States magistrates to enter orders enforcing such summonses would raise problems under Article HI of the Constitution, because it could entail the exercise o f the judicial power by officials lacking life tenure and guaranteed non'dim inution o f com pensa­ tion. The Article III problem s presented by the foregoing provision could be eliminated by providing that the m agistrate's order would be treated as a report of findings and recom mendations, subject to de novo review by a United States district judge with respect to findings and recom mendations of the magistrate as to which objection is m ade by any party, whereby the judge could accept, reject, or modify the findings or recommendations of the magistrate. A provision in the proposed legislation would permit the ex parte issuance of an order prohibit­ ing disclosure o f such FBI summonses upon a showing that such disclosure might endanger life or property; cause the flight of a suspect; result in the destruction of or tampering with evidence, or the intimidation of potential witnesses; or defeat federal remedies or penalties. Under the standard articulated in M athews v. Eldridge, 424 U.S. 319 (1976), the absence o f a predeprivation hearing in this provision would not appear to violate the requirements of the Due Process Clause. December 11, 1986 M em orandum O p in io n f o r t h e O f f ic e o f A s s is t a n t A t t o r n e y G eneral, L e g is l a t iv e A f f a ir s You have requested the comments of this Office on a proposed bill to grant the Federal Bureau of Investigation the power to issue a summons to acquire physical and documentary evidence in aid of criminal investigations and for­ eign intelligence activities. The authority will reside in the Director of the FBI, who may delegate it to supervisory level Special Agents. The summons must be issued in writing, must describe the materials sought with reasonable specificity, and must pro­ vide sufficient time to assemble and make available the materials requested. The Attorney General, in consultation with the Director of the FBI, is to promulgate regulations governing the issuance of a summons. Service of the summons on a natural person must be by personal service. For a corporation, partnership, or other association, service may be by personal service or by 145 registered or. certified mail. Service may be national. United States District Courts have jurisdiction to enforce or to modify or vacate a summons on petition of the government or of the person served, respectively.1 A magistrate or district judge may enter an order enforcing a summons or granting relief from a summons; disobedience of such an order is punishable by contempt. All petitions relating to foreign intelligence are to be heard in the Foreign Intelli­ gence Surveillance Court. The proposed bill contains certain limitations on summons authority, includ­ ing a provision proscribing the required production of materials that could not be obtained under the standards governing a subpoena duces tecum issued in aid of a grand jury investigation. Finally, the bill allows a court, per a district judge or magistrate, to issue an ex parte order prohibiting disclosure of the existence of a summons where such disclosure would jeopardize life or physi­ cal safety or would interfere with various law enforcement objectives. Such an order may be challenged in district court, and a district judge or magistrate may set it aside or modify it. Where the Director of the FBI, a Special Agent, or a designated Assistant Special Agent certifies that the summons is being issued for foreign intelligence purposes, the statute prohibits disclosure of its exist­ ence. This prohibition against disclosure may be challenged in the Foreign Intelligence Surveillance Court. This Office has comments with respect to three aspects of the bill. First, we believe that the provision allowing magistrates to enter final district court orders enforcing the summons poses a constitutional problem, because Article III requires that the judicial power of the United States be exercised by an official with life tenure and guaranteed non-diminution of compensation. Sec­ ond, the non-disclosure provisions impinge on the summoned party’s liberty interests and, therefore, raise questions about due process of law. Third, the provision limiting the request for materials to those obtainable under a sub­ poena duces tecum issued in aid of a grand jury investigation seems to be at odds with part of the rationale for proposing the legislation. We address each issue in turn. L TIhe Use off Magistrates to Enforce the Sunnimoinis The proposed bill poses a potential constitutional problem with respect to the enforcement authority that it appears to confer upon United States magistrates. Insofar as § 1(d)(3) gives the district court “jurisdiction to hear and determine” a petition for enforcement of the administrative summons or for relief from the summons, no issue of constitutionality arises. Section 1(d)(3) continues, how­ ever, by stating: “The petition may be heard and an order entered by a district judge or United States Magistrate for the district in which the petition was filed. Any failure to obey the order of the court may be punished as a contempt 1 V enue lies in the ju d ic ia l district in w hich the sum m ons is served, in w hich the investigation is pending, or in w hich the sum m oned person resides o r carries on business o r may be found. 146 thereof.”2 This provision appears on its face to empower United States magis­ trates to enter final orders of the district court, punishable by contempt of court. If so, any such attempt to delegate this inherently judicial function to a United States Magistrate, an office not endowed with the attributes of guaranteed non­ diminution of salary or life tenure,3 may run afoul of Article Ill’s requirement that “the judicial Power of the United States” be exercised by judges with undiminishable compensation and tenure “during good Behaviour.” U.S. Const, art. Ill, § 1. The starting point for analysis is ICC v. Brimson, 154 U.S. 447 (1894), in which the parties against whom the agency had issued a summons resisted enforcement in federal court on the ground that permitting or requiring courts of the United States to “use their process in aid of inquiries before” a federal agency failed to meet the case or controversy requirement of Article III. Id. at 468. In rejecting this argument, the Court noted that Congress has the power to regulate interstate commerce and that it would “go far towards defeating the object” of giving Congress the commerce power if the Court held that Congress could not “establish an administrative body with authority . . . to call witnesses before it, and to require the production of books, documents, and papers . . . relating to the subject.” Id. at 474. The Brimson Court found that Congress’ use of the courts of the United States was an appropriate means to effectuate this power because [t]he inquiry whether a witness before [an agency] is bound to answer a particular question propounded to him, or to produce books, papers, etc., in his possession and called for by that body, is one that cannot be committed to a subordinate administrative or executive tribunal for final determination. Such a body could not, under our system of government, and consistently with due process of law, be invested with authority to compel obedience to its orders by a judgment of fine or imprisonment. Id. at 485. Analogizing the enforcement proceedings to the prosecution of a person indicted under a statute requiring that person to appear or to produce certain materials, the Court further stated that “[t]he performance of the duty which, according to the contention of the government, rests upon the defen­ dants, cannot be directly enforced except by judicial process.” Id. at 487. In this vein, the Court added that summons enforcement involved “questions judicial 2 This provision seem s to apply equally lo petitions for enforcem ent by the governm ent and petitions for relief by the parties. The analysis w ith respect to both kinds o f petition is the same, for the result o f either petition w ill be an o rd er enforcing the sum m ons if valid and enforceable or an order denying enforcem ent if not. 3 Under 28 U .S.C . § 631(e), a full-tim e m agistrate has a term o f eight years and a part-tim e m agistrate serves for four years. A m agistrate may be rem oved before the end o f his term for “incom petency, m iscon­ duct, neglect o f d u ty , o r physical o r mental d isability” and a “m agistrate’s office may be term inated if the judicial conference determ ines that the services performed by his office are no longer needed.” Id. § 631(i). A lthough 28 U .S.C . § 634(b) provides that “ the salary o f a full-tim e m agistrate shall not be reduced, during the term in which he is serving, below the salary fixed for him at the beginning o f that term ,” this guarantee is not o f constitutional dim ension, and Congress can revoke this provision sim ply by am ending Title 28. 147 in their nature, and presented in the customary forms of judicial proceedings.” Id. at 487. B rim son' s statement that the power to enforce an administrative summons cannot be committed to an administrative or executive “tribunal,” created pursuant to Congress’ Article I powers, necessarily suggests that such enforce­ ment constitutes a part of the “judicial Power of the United States” and that only an official endowed with Article Ill’s guarantees of undiminished com­ pensation and tenure during “good Behavior” could constitutionally compel compliance with a summons. Given Congress’ power to create Article I tribu­ nals with significant judicial attributes short of these Article III characteristics, no other rationale for the Court’s conclusion suggests itself. Indeed, the Brimson Court’s explicit reliance on “our system of government” shows that the Court was employing a separation o f powers analysis, which, insofar as it addressed the proper forum for “questions judicial in their nature,” necessarily implicated Article III.4 Thus, the Brimson Court’s conclusion that the duty to obey a summons “cannot be enforced except by judicial process” must be taken as a constitutional pronouncement that commits such enforcement to Article IE courts.5 Some lower courts have questioned the continuing vitality of this aspect of Brimson. For example, in Federal Maritime Comm ’n v. New York Terminal Conference, 373 F.2d 424, 426 n.2 (2d Cir. 1967), Judge Friendly suggested that “Congress might well consider whether the long record of frustration and less restrictive modem notions of the separation of powers might not make it wise to empower at least some administrative agencies to enforce subpoenas without having to resort to the courts in every case.” Presumably, Judge Friendly’s conception of “less restrictive modem notions of the separation of powers” is a reference to the rise of the modem administrative state and the fact that it has now become a commonplace for Article I agencies to adjudicate socalled “public rights.” Cf. Atlantic Richfield Co. v. D ep’t o f Energy, 769 F.2d 771, 793-94 (D.C. Cir. 1984) (relying on the advent of the modem administra­ tive state and on the public rights doctrine to uphold the application of discov­ ery sanctions by an agency in response to a party’s disobeying a subpoena). The concept of “public rights” is, at best, elusive and, at worst, unfathom­ able. The essence of the “public rights” doctrine is that Congress itself has the power to decide, or may delegate to an executive agency the authority to decide, “cases . . . which arise between the Government and private persons in connection with the performance of the constitutional functions of the execu­ 4 Cf. In Re Croban, 352 U .S. 330 (1957), in which the Suprem e Court im plied by way o f dictum that a state execu tiv e o fficer co u ld issue a subpoena a n d punish non-com pliance by contem pt. T here is nothing to suggest th a t this dictum has any application to the federal level o r otherw ise lim its Brimson. 5 S om e ju d g es have suggested doubt as to w hether Brimson' s pronouncem ents on sum m ons enforcem ent w ere o f con stitu tio n al m agnitude. See, e.g., Penfield Company o f California v. Securities & Exchange Commission , 330 U .S. 5 8 5 ,6 0 3 -0 4 (1 9 4 7 ) (Frankfurter, J., jo in e d by Jackson, J., dissenting); United States v. Zuskar. 237 F.2d 5 2 8 k533 (7th Cir. 1956) (“ Since Brimson C ongress has customarily provided foi [the] resort to the courts by [adm inistrative] agencies fo r orders com pelling obedience to subpoenas.") (emphasis added). In light o f Brimson* s reference to “our sy stem o f governm ent” and to “due process o f law ” in announcing the principle that sum m ons enforcem ent cannot be com m itted to an Article I tribunal, it is difficult to understand the basis fo r any such conclusion. 148 tive and legislative departments.” Crowell v. Benson, 285 U.S. 22, 50 (1932). Because Congress has plenary power to determine these “public rights” issues or to delegate their determination to executive officers, it may, therefore, also take the expedient of committing such determinations to Article I tribunals not meeting the dictates of Article III.6 Id. The theory that this doctrine undercuts Brimson presumably depends on the notion that, insofar as an agency summons relates to “public rights,” Congress can commit its enforcement to a non-Article III tribunal. But because the “public rights” doctrine antedates Brimson, see, e.g., Murray’s Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272 (1856), and because the Court in Brimson recognized that the Interstate Commerce Commission’s summons power related to matters of public rights, see 154 U.S. at 475-77, and nonetheless proclaimed that the enforcement of the Commission’s summons could not be committed to a subordinate executive or legislative tribunal, id. at 485, any such theory must be dismissed. The Brimson Court, in fact, explicitly remarked that the legislative purpose for which the summons was sought did not affect the conclusion that summons enforcement was an inherently judicial function. See id. at 487 (“[The enforcement of a summons] is none the less the judgment of a judicial tribunal dealing with questions judicial in . .. nature, and presented in the customary forms of judicial proceedings, because its effect may be to aid . .. the performance of duties legally imposed . . . by Congress in execution o f . .. power granted by the Constitution.”). Thus, we conclude now, as we have concluded previously, see, e.g., “Pro­ posed Legislation to Grant Additional Power to the President’s Commission on Organized Crime,” 7 Op. O.L.C. 128 (1983), that Brimson remains good law, see 1 K. Davis, Administrative Law Treatise § 4:6, at 240 (2d ed. 1978), at least as to the enforcement of a summons through criminal penalties. There are apparent exceptions related to Congress,7 the application of civil penalties,8 6 Although the concept o f w hat constitutes a “public right" has undergone some recent expansion, see Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 5 8 8 -8 9 (1985) (holding that a dispute between private individuals may constitute a “public rights" case insofar as “C ongress has the power, under Article I, to authorize an agency adm inistering a com plex statutory schem e to allocate costs and benefits among voluntary participants in the program "), the m ere fact o f its broader application cannot supply a principled basis for concluding that Brimson is no longer good law. 7 E ither House o f C ongress may compel docum entary o r oral testimony under pain of crim inal contempt. See Jumey v. MacCracken, 294 U.S. 125, 148 (1935). The basis for this exception to the Brimson rule is rooted in the historical pow ers o f the H ouse o f Commons, the colonial assem blies, the C ontinental C ongress, and the state legislatures to m ete out crim inal punishm ent for contempt, see id. at 148-49, a practice that the Supreme Court upheld as constitutional as early as 1821. See Anderson v. Dunn , 19 U.S. (6 W heat.) 204 (1821). This power is narrow and lim ited to punishing acts that “obstruct the performance o f the duties o f the legislature." Jum ey , 294 U.S. at 148. In effect, therefore, Brimson m ust be read as establishing a general rule that the use of crim inal contem pt to compel testimony fo r the implem entation and enforcem ent of law s is inherently judicial and m ust be com m itted to an A rticle III court, but that C ongress may, according to historical practice, itself use the pow ers o f crim inal contem pt to safeguard the integrity o f the legislative process as such. This lim ited exception, how ever, does not suggest that C ongress may delegate to an A rticle I tribunal the pow er to enforce com pelled production o f testim ony by citing persons for c nm inal contempt. 8 W ith respect to civil penalties, the Suprem e Court has sustained schem es in which “C ongress has . . . created new statutory obligations, provided for civil penalties for their violation, and com m itted exclusively C ontinued 149 and various monetary claims enforceable in certain Article I courts of limited jurisdiction where the party presumably consents to a waiver of his right to an Article III forum.9 The ability of a magistrate under the proposed legislation to enter a final judgment enforcing a summons poses a potential constitutional objection pre­ cisely because it exposes the summoned party to possible criminal contempt before any Article III determination of his or her right not to have the summons enforced.10 Under the proposed legislation, a non-Article III magistrate may initially determine the validity of the summons in light of whatever constitu­ tional or other objections the party may assert.11At that point, if the magistrate enters a final order of the district court directing the party to comply with the summons and to produce the “books, records, papers, documents, or other tangible things” that may be reached by § 1(a) of the proposed bill, two choices exist. The party can seek appellate review of this final order of the court, perhaps asking for a stay of the order, or the party can disobey the order and risk a citation for contempt in district court. Neither option preserves the party’s right to resist enforcement of a summons in an Article III court without incurring criminal liability. If the party seeks appellate review, the Article III appellate court does not conduct a de novo review of the magistrate’s order, but applies a less searching standard of review. See, e.g., FTC v. Brown & Williamson Tobacco Corp., 778 F.2d 35, 41 (D.C. Cir. 1985) (upholding a district court’s findings in a civil action because they were not “clearly erroneous”). In these circumstances, there will be no determination by an Article III tribunal of the enforceability of the summons, but merely a determination of the adequacy of the non-Article III magistrate’s conclusions in that regard. By the same token, if the party chooses to disobey the magistrate’s order, the magistrate can secure a contempt citation against the recalcitrant party by 8 ( . . . continued) to an adm inistrative agency the function o f deciding w hether a violation has . . . occurred.” Atlas Roofing Co. v. Occupational Safety and Health Review Comm’n, 430 U .S. 442, 450 (1977). Thus, in asserting the continuing vitality o f the “w ell-established p rinciple” that A rticle I tribunals do not have the pow er to enforce a sum m ons ‘“ by a ju d g m en t o f fine o r im prisonm ent,” ’ see Atlantic Richfield Co. v. Dep't o f Energy , 769 F.2d 771, 793 (D.C. C ir. 1984), it appears necessary to append the caveat that this principle is limited to m atters involving enforcem ent through crim inal contem pt. But see NLRB v. International Medication Systems Ltd., 640 F.2d 1110, 1115-16 (9 th Cir. 1981) (holding that, because Brimson requires that “chal­ lenges to agency subpoenas . . . be resolved by the judiciary before com pliance can be com pelled,” an agency c a n n o t a p p ly d is c o v e ry sanctions in re sp o n se to a p a rty 's re fu sa l to com ply w ith a subpoena). 9 See, e.g., 26 U.S.C. § 7456(e) (Tax C ourt). 10 T he follow ing analysis assumes th at § 1(d)(3) o f the bill does not actually perm it the magistrate to cite the party fo r contem pt. B ecause the language provides that “ [a]ny failure to obey [an] order o f the court may be punished as a contem pt thereof,” an d does not specify w hich authority or authorities may apply such a m easure, w e assum e that, w ith respect to contem pt o f m ag istrate's orders, the substantive grant o f contem pt pow er m ay b e exercised only pursuant to 28 U.S.C. § 636(e), which governs “acts or conduct” before a m agistrate th at “shall co n stitu te a contem pt o f the district co u rt.” 11A party m ay oppose the enforcem ent o f a sum m ons on a num ber o f distinct bases, including First, Fourth, and F ifth A m endm ent objections, attom ey-client privilege, reasonableness, and a variety o f other substantive and procedural grounds. See 3 B. M ezines, J. Stein, & J. G ru ff, Administrative Law § 21.01 [2], at 21-5 to 2 1 16 (1 9 8 5 ). 150 certifying facts to the district court that show “disobedience or resistance to any lawful order” of the magistrate or “failure to produce, after having been ordered to do so, any pertinent document.” 28 U.S.C. § 636(e)(1), (3). Even if the district judge at this point undertook a de novo review of the validity of the underlying order, the party would nonetheless have been deprived of his or her right to an Article III tribunal. Because the magistrate’s decision about the validity of the summons would be entered as a judgment of the court, any de novo determination by an Article III judge would be available only after the point at which the party had already disobeyed an order of the court. In other words, under the proposed legislation, criminal liability for contempt could become fixed before an Article III tribunal became available, even though the citation for contempt could be entered only by the district judge. The party would, therefore, have to risk criminal penalties in order to obtain a de novo determination of his or her rights by the Article III judge. Subjecting a party to the Hobson’s choice of incurring potential criminal contempt penalties or foregoing the right to an Article III tribunal arguably places an impermissible burden on the Brimson right to be free of liability for criminal contempt short of an Article III court’s determination that the summons sought to be enforced is valid and enforceable. By contrast, treating the order of the magistrate as a mere recommendation that could not become final until the district court judge undertook a de novo review of the magistrate’s conclusions would pose no constitutional problem. See 28 U.S.C. § 636(b). Under these circumstances, with no final order of the court to disobey at the point of the magistrate’s decision, criminal liability for contempt could not become fixed until after the district judge undertook de novo review of the magistrate’s determinations. Because such criminal liability could attach, therefore, only for resistance to an order as to which the district judge had been the “ultimate decisionmaker,” such a scheme would not offend the Brimson rule. See United States v. Raddatz, 447 U.S. 667, 682 (1980) (approving the use of magistrates as adjuncts to Article III judges, provided that the judges exercise supervisory control over the magistrates and remain the “ultimate decisionmaker[s]”). In this respect, the Internal Revenue Service’s statutory summons power is instructive. Under the Internal Revenue Code, the district courts have “jurisdic­ tion” to compel compliance with a summons, see 26 U.S.C. § 7602(a), yet magistrates,12 as well as district judges, have the authority to enter “such order[s] as [the judges or magistrates] shall deem proper, not inconsistent with the law . . . of contempts, to enforce obedience to the requirements of the summons and to punish such person for his default or disobedience.” 26 U.S.C. § 7604(b). The courts have construed this power narrowly, holding that the Code does not empower a magistrate to enter an enforcement order as a final judgment of the court, see, e.g.. United States v. Cline, 566 F.2d 1220, 1221 12 The Internal Revenue Code refers to U nited States com m issioners, instead o f magistrates. 26 U.S.C. § 7604(b). U nited States com m issioners w ere the predecessors to United States m agistrates, and the Federal M agistrate’s Act transferred the totality o f powers and duties o f the form er to the latter. 28 U.S.C. § 636(a)(1). 151 (5th Cir. 1978); United States v. Haley, 541 F. 2d 678 (8th Cir. 1974), and treating any magistrate’s order as a mere recommendation subject to review by the district court according to the strictures of the Federal Magistrate’s Act, see, e.g., United States v. First N a t’l Bank o f Atlanta, 628 F.2d 871, 873 (5th Cir. 1980); United States v. Wisnowski, 580 F.2d 149, 150 (5th Cir. 1978); United States v. First N at’l Bank o f Rush Springs, 576 F.2d 852, 853 (10th Cir. 1978); United States v. Zuskar, 237 F.2d 528, 533 (7th Cir. 1956). As a Departmental proposal, however, it is prudent to avoid the constitu­ tional defect posed if the bill were to be construed as permitting the entry of a final order by a magistrate. Accordingly, this Office strongly recommends that the following language be added to § (l)(d)(3) of the proposed bill: Any order entered by a United States magistrate pursuant to authority conferred by this Act shall be treated as a report containing proposed findings of fact and a recommendation for the district judge. Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of the court. A judge of the court shall make a de novo determina­ tion of those portions of the report or specified proposed find­ ings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. This language would, under the test set out in United States v. Raddatz, 447 U.S. 667,681-84 (1980), ensure the constitutionality of the magistrate’s role in the enforcement of the FBI summons by retaining the district judge as the “ultimate decision-maker.”13 It bears noting that the language proposed forecloses magistrates’ authority to enter final orders only insofar as that authority derives from the proposed bill. Thus, a magistrate could still enter a final order enforcing an FBI summons pursuant to the independent authority granted in the Federal Magistrates Act. Specifically, 28 U.S.C. § 636(c) provides that [u]pon the consent of the parties, a full-time United States magistrate or a part-time United States magistrate who serves as 13 T he proposed language would also apply to any petition under § 1(d)(3) for “an order m odifying or setting aside . . . a prohibition o f disclosure” o f the summons. A lthough Brimson does not address the issue o f prohibiting disclo su re o f the existence o f a sum m ons, it seems as if the rule set out in Brimson should apply w ith equal force to this m atter. First, the prohibition o f d isclosure o f a sum m ons is itself an integral part of sum m ons enforcem ent, for non-disclosure o f a third-party sum m ons m ay be essential to prevent the thwarting o f the investigatory purposes o f the sum m ons or may be necessary to preclude otherwise unacceptable costs related to the issuance o f a summons (i.e., endangering life o r physical safety). Second, many sim ilar issues, such as First A m endm ent and reasonableness objections, govern the validity o f a non-disclosure order. Thus, we believe th at the decision whether to o rd e r non-disclosure o f a sum m ons is an inherently judicial function that m ust be com m itted to an Article III tribunal. 152 a full-time judicial officer may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court or courts he serves. Upon the consent of the parties, pursuant to their specific written request, any other parttime magistrate may exercise such jurisdiction, if such magis­ trate meets the bar membership requirements set forth in § 631(b)(1) and the chief judge of the district court certifies that a full-time magistrate is not reasonably available in accordance with [the] guidelines established by the judicial council of the circuit. Although the Supreme Court has never spoken to the constitutionality of this provision, the Courts of Appeals have overwhelmingly endorsed it as constitu­ tional insofar as it is dependent on the consent of the parties. See, e.g.. Fields v. Washington Metropolitan Area Transit Authority, 743 F.2d 890 (D.C. Cir. 1984); Collins v. Foreman, 729 F.2d 108 (2d Cir.), cert, denied, 469 U.S. 870 (1984); Goldstein v. Kelleher, 728 F.2d 32 (1st Cir.), cert, denied, 469 U.S. 852 (1984); Pacemaker Diagnostic Clinic o f America, Inc. v. Instromedix, Inc., 725 F.2d 537 (9th Cir.) (en banc), cert, denied, 469 U.S. 824 (1984). The Depart­ ment, therefore, would appear to have little cause to consider including lan­ guage that would explicitly negate § 636(c)’s power of consensual reference to magistrates as applied to petitions for enforcement of or relief from an FBI summons. , A word of caution on this point is in order, however. All of the circuit court cases upholding 28 U.S.C. § 636(c) antedate the Supreme Court’s recent opin­ ion in CFTC v. Schor, 478 U.S. 833 (1986). Although Schor upheld a scheme in which, with the consent of the parties, the Commodity Futures Trading Commission (CFTC) could exercise pendent or ancillary jurisdiction over common law counterclaims arising out of the transaction or occurrence that formed the basis for the underlying statutory claim, portions of Schor' s ratio­ nale raises doubts as to the continuing validity of § 636(c). To the extent that Schor held that the parties could waive the “personal right” to an Article III tribunal, the decision is highly favorable to the consensual reference provisions contained in the Federal Magistrate’s Act. But as to structural concerns involv­ ing the separation of powers, the Court found it significant that (1) the scheme involved the exercise of non-Article III power only in the ‘“ particularized area’” of commodities exchange law; (2) CFTC orders were not self-executing and could only be enforced by district courts; (3) orders were reviewed under the “weight of the evidence” standard rather than the “clearly erroneous” standard; (4) the district court had de novo review of questions of law; and (5) the CFTC could not exercise all the “ordinary” functions of a district court, such as presiding over a jury trial or issuing writs of habeas corpus. Id. at 854-56. The consensual reference scheme under 28 U.S.C. § 636(c) does not share many of the characteristics that the Schor Court found comforting from a 153 separation of powers standpoint. First, the exercise of a magistrate’s authority under the consensual reference provision extends to any “civil matter.” 28 U.S.C. § 636(c)(1). Second, although only the district judge can issue a con­ tempt citation to enforce the magistrate’s order, see 28 U.S.C. § 636(e), that order is nonetheless a final judgment of the district court and, as such, is self­ executing. Third, because the judgment entered by the magistrate is appealable “in the same manner as an appeal from any other judgment of [the] district court,” 28 U.S.C. § 636(c)(3),(4), the standard of review of factual findings is the “clearly erroneous” standard. See Fed. R. Civ. P. 52(a). Indeed, the consensual reference scheme enjoys only two of the characteris­ tics found significant by the Schor Court. First, the Article III court that reviews the magistrate’s decision has de novo review of all questions of law. Second, while the magistrate can exercise many of the “ordinary functions” of the district court, including the conduct of a jury trial and, presumably, the power to issue a writ of habeas corpus, there remain significant functions, such as the ability to cite a party for contempt, that the magistrate does not possess even under the consensual reference scheme. Yet, despite the dissimilarities between the CFTC’s counterclaim mecha­ nism in Schor sad the consensual reference provision of the Federal Magistrate’s Act, there is reason to believe that the latter still passes constitutional muster. The Schor Court found the five factors listed above to be relevant in determin­ ing whether the “congressional scheme. . . impermissibly intruded on the province of the judiciary,” 478 U.S. at 851-52, but in no way purported to make such factors an exhaustive and exclusive list of the safeguards that could justify the consensual resort to a non-Article III tribunal for matters that would otherwise require adjudication in an Article III court. Indeed, Schor may actually buttress the conclusion reached by the Courts of Appeals insofar as it endorses the mode of analysis widely employed in the lower court cases regarding consensual reference. Under this analytical framework, the parties’ consent serves as a waiver of any personal right to an Article III tribunal, and the acceptability of the consensual reference depends on the extent to which the statutory scheme protects the judiciary from “impermissibl[e] intrusion]” by the executive and legislative branches. The question of what constitutes an “impermissibl[e] intrusion] on the province of the judiciary” involves matters of degree, making it difficult to predict with any confidence how the Supreme Court will react to the consen­ sual reference scheme found in 28 U.S.C. § 636(c). The Courts of Appeals, however, have identified several features of the Federal Magistrate’s Act as significant protections against the encroachment of the executive and legisla­ tive branches on the independence of the judiciary,14 and, given the widespread 14 F irst, the m agistrates are appointed by district judges and are subject to removal only by the district ju d g e s or, in som e circum stances, by th e circuit judicial council. See, e.g., Geras v. Lafayette Display Fixtures Inc., 742 F.2d 1037, 1043 (7 th Cir. 1984); Pacemaker Diagnostic Clinic o f America , Inc v. Continued 154 concurrence of the Courts of Appeals,15 it may reasonably be predicted that these features may suffice to sustain the scheme in the Supreme Court under the kind of analysis set out Schor. II. Ex Parte Prohibition Against Disclosure Section 1(f)(1) of the proposed legislation permits the ex parte issuance of an order prohibiting disclosure of an FBI summons upon a showing that “the materials being sought may be relevant to a legitimate law enforcement inquiry and that there is reason to believe that such disclosure may result in: (A) endangering the life or physical property of any person; (B) flight from pros­ ecution; (C) destruction or tampering with evidence; (D) intimidation of poten­ tial witnesses; or (E) defeating any remedy or penalty provided for violation of the laws of the United States.” The order may be issued by a magistrate or district judge, and the person against whom the prohibition is directed may obtain relief by filing a petition in the district court pursuant to § 1(d)(2) of the proposed bill.16 Because the prohibition against disclosure of the summons constitutes a clear deprivation of liberty, the issuance of the ex parte order must comport with the requirements of the due process clause of the Fifth Amend­ ment. With respect to § 1(f)(2), the issue is thus whether a prompt postdeprivation hearing is sufficient to meet the dictates of due process. Under Mathews v. Eldridge, 424 U.S. 319, 335 (1976): [Identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and ad­ ministrative burdens that the additional or substitute procedural requirement would entail. 14 (Continued) Instromedix, Inc., 725 F.2d 537, 545 (9th C ir.) (en banc), cert, denied, 469 U.S. 824 (1984). Second, the district judge m ust specially designate the m agistrate to exercise jurisdiction. See, e.g., Collins v. Foreman, 729 F.2d 108, 115 (2d C ir.), cert, denied, 469 U.S. 870 (1984). Third, the district court retains the pow er to withdraw the reference o f the case from the magistrate. See, e.g., Collins, 729 F.2d at 115; Pacemaker, 725 F.2d at 545. Fourth, the magistrate lacks any power to cite the parties for contempt. See, e.g., Geras, 742 F.2d at 1043. 15 See Note, The Boundaries o f Article III: Delegation o f Final Decisionmaking Authority to Magistrates, 52 U. Chi. L. Rev. 1032, 1034 n.16 (1985). 16 Section 1(0(1) em pow ers a m agistrate to enter an ex parte order im posing the prohibition. Because this order is presum ably punishable by crim inal contem pt pursuant to 28 U.S.C. § 636(e), this O ffice believes that the same principles that govern summons enforcem ent under Brimson should apply to the entry o f a prohibition order, and that language should be added to indicate that an order entered by a m agistrate under § 1(0(1) has no binding effect o f its own. B ecause the proceedings m ust proceed ex parte to serve the interests o f prohibiting disclosure, and because review by the district judge prior to entry o f judgm ent cannot proceed, therefore, upon the objections o f the party to be bound, language should be added treating every m agistrate's order under § 1 ( 0 ( 0 as a m ere recom m endation to be given de novo review ex parte by the district judge before it can becom e an order o f the court. 155 Under this test, it appears that the absence of a pre-deprivation hearing under § 1(f)(1) would pass constitutional muster. In this case, the First factor appears to favor the constitutionality of § 1(f)(1), for a “claim to a predeprivation hearing as a matter of constitutional right rests on the proposition that full relief cannot be obtained at a postdeprivation hearing.” Id. at 331. Because the party against whom the summons and prohibi­ tion order are directed can immediately go into court and seek relief from the order, that party’s liberty interest in speech is only minimally impaired. No irreparable harm will occur if a party must simply wait to disclose the existence of a summons until after a court has heard the party’s petition for relief; if the party has a protectible First Amendment or statutory right to disclose the existence of the summons, the use of the ex parte procedures set out in the proposed legislation will only delay, and not defeat, that right. This temporary interference with a protected interest will not threaten the very subsistence or well-being of the party, as in Goldberg v. Kelly, 397 U.S. 254 (1970), a case involving eligibility for welfare benefits, or in Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978), a case involving the termination of utility services. Although a permanent or extended deprivation without any hearing might pose serious constitutional problems, the availability of prompt postdeprivation review reduces the harm to the protected interest of the party. See M itchell v. W.T. Grant Co., 416 U.S. 600 (1974). The possibility of wrongful deprivation also seems slight. Section 1(0(1) of the proposed bill has set out very narrow and specific bases upon which a non­ disclosure order may be issued, and the government must presumably supply concrete evidence showing why it has reason to believe that disclosure would lead to endangerment of life, flight from prosecution, and the like. And the fact that a judge or judicial adjunct makes the initial determination and the judge is the ultimate decisionmaker minimizes the possibility that the deprivation will be in error.17 See Mitchell, 416U.S. at 616-17 (“The . . . law [at issue] provides for judicial control of the [property sequestration] process from beginning to end. This control is one of the measures adopted . . . to minimize the risk that the ex parte procedure will lead to a wrongful taking.”). Finally, the government has a strong interest in the procedure being em­ ployed. Disclosure of a summons is an all or nothing proposition. Once it occurs, it cannot be undone. Thus, it is imperative that the government be able to present the summoned party with a prohibition against disclosure under pain of contempt at the time the party becomes aware of the summons. If no legal compulsion existed to preclude disclosure ab initio, and the government could not secure the non-disclosure order until notice and hearing were provided, no such prohibition could ever occur, for the party could make any desired disclosures pending the hearing on the prohibition. Thus, given the important governmental interest in preventing endangerment of health, see, e.g., Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 17 T his presum es that the bill will be changed to reflect o u r recom m endation to make the m agistrate's non­ disclo su re o rder m erely advisory. 156 (1950) (allowing seizure without a predeprivation hearing where necessary to protect the public from misbranded drugs), in apprehending and convicting criminals, see, e.g., Fuentes v. Shevin, 407 U.S. 67, 93-94 n.30 (1972), and in preserving and discovering the evidence of crimes, see, e.g., id., the government’s ability to prohibit disclosure of a summons ex parte under the circumstances provided for in the proposed bill seems well grounded. The bill contains another non-disclosure provision that merits brief attention as well. Section 1(f)(2) prohibits disclosure of a summons whenever the FBI Director, a Special Agent, or designated Assistant Special Agents-In-Charge certify that the summons was issued for the purpose of collecting positive foreign intelligence or counterintelligence. This Office believes that this sec­ tion also satisfies the due process requirements of the Constitution. The liberty interest of the summoned party is the same as in § 1(f)(1). And although the application of the prohibition against disclosure is not subject to judicial supervision under this subsection, the factual predicate for prohibition is very narrow and specific and the possibility of wrongful deprivation seems very slim. Moreover, the government’s interest in excluding judicial participation at the point of the initial determination of prohibition in this case seems very strong, insofar as the foreign intelligence interests of the United States require that as few people as possible be aware of ongoing intelligence operations. Finally, it is clear that national security is an important governmental interest that can justify the delay of an available hearing until after the deprivation of a protectible interest. See , e.g., Stoehr v. Wallace, 255 U.S. 239, 245 (1921); Central Union Trust v. Garvan, 254 U.S. 554, 566 (1921). Section 1(f)(2), moreover, presents no Brimson problem, for none of the executive officers designated to act has the power to enter any kind of enforce­ able order, and, therefore, no non-Article III official is empowered to perform any such inherently judicial function.18 The officials certify a summons as being for the purpose of collecting foreign intelligence and then a self-operative statutory prohibition takes effect. Violation of this prohibition presumably can be punished only by virtue of judicial process. One problem with the proposed bill, however, is that it specifies no penalties for violating the statutory prohibition contained in § 1(f)(2). This deficiency should be rectified before submitting the bill to Congress. III. Subpoena Duces Tecum Section 1(e)(2) states that “[n]o summons shall require the production of any materials, if such materials would be protected from production under the standards applicable to a subpoena duces tecum entered in aid of a grand jury investigation.” The inclusion of this provision is somewhat curious insofar as 18There is a distinction betw een certifying a fact that triggers a statutory prohibition that is enforceable by judicial process and entering a ju d icial order enforceable by criminal contem pt after determ ining a case or controversy The latter is inherently a judicial function and must, according to Brimson , be undertaken only by an Article 111 tribunal. 157 one of the avowed purposes of proposing the legislation is to allow the FBI greater scope in locating fugitives for the purposes of turning them over to state and local authorities and in gathering data for foreign intelligence purposes, rather than for purposes of federal investigation and indictment. Since it would normally be considered improper to use a grand jury subpoena for such pur­ poses, § 1(e)(2) may be subject to judicial interpretation that could thwart part of the legislative purpose. Accordingly, § 1(e)(2) should be made clearer to ensure that it will not be used to preclude the gathering of information for locating fugitive felons and conducting foreign intelligence functions. Conclusion For the above reasons, we conclude that the provisions of §§ 1(d)(3) and 1(f)(1) require modification to ensure the statute’s constitutionality. The inser­ tion we propose which treats a magistrate’s order as a recommendation for the district judge for the purposes of the Act should, we believe, satisfy this objection. In addition, § 1(0(2), providing for nondisclosure in the context of a summons for positive foreign intelligence or counterintelligence information, should specify a legal method of enforcement. Finally, the reference to the grand jury standard in § 1(c)(2) seems contrary to the avowed purpose of the bill without further explanation. D o u g la s W. K m iec Deputy Assistant Attorney General Office o f Legal Counsel 158