Datasets:

KolaGang

/

memo

like 0

Write a legal research memo on the following topic.

October 10, 1979 79-75 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL Constitutional Convention—Limitation of Power to Propose Amendments to the Constitution You have requested our opinion on a question that involves the “ C on­ vention Clause” o f Article V o f the Constitution: The Congress * * * on the Application o f the Legislatures of two thirds o f the several States, shall call a Convention for pro­ posing Amendments, which * * * shall be valid to all Intents and Purposes, as part o f this C onstitution, when ratified by the Legislatures o f three fourths o f the several States, or by Conven­ tions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress * * * Your question is whether this clause authorizes a general or a limited con­ vention process. Does a “ Convention for proposing Am endm ents,” called by Congress on application o f two-thirds o f the legislatures o f the States, have general power to propose amendm ents on any subject that com ­ mands the attention o f the delegates? U nder what circumstances, if any, 'T he entire text o f Article V follows: The Congress, whenever two thirds o f both Houses shall deem it necessary, shall pro­ pose Am endm ents to this C onstitution, or, on the A pplication o f the Legislatures o f two thirds o f the several States, shall call a Convention for proposing Am endm ents, which, in either Case, shall be valid to all Intents and Purposes, as Part o f this Constitution, when ratified by the Legislatures o f three fourths o f the several States or by Conventions in three fourths thereof, as the one or the other M ode o f Ratification may be proposed by the Congress; Provided that no A m endm ent which may be m ade prior to the Year O ne thousand eight hundred and eight shall in any M anner affect the first and fourth Clauses in the Ninth Section o f the first Article; and that no State, without its Consent, shall be deprived o f its equal Suffrage in the Senate. 390 may the powers and the proposals of the convention be limited to a par­ ticular field? This question has been warmly debated among constitutional scholars and officers o f Governm ent.2 It has never been answered or even addressed by any court. O ur views are set forth below. I. The Convention of 1787 In the summer o f 1787 delegates from 12 of the 13 United States assembled in Philadelphia. They had been called to Philadelphia by C on­ gress, and their purpose was to consider and propose amendments to the Articles o f Confederation and constitution o f the young Nation. They labored through the summer and produced a new and enduring docum ent, the very Constitution that your question requires us to construe. One o f the im portant questions that confronted the delegates in Philadelphia was whether they should honor the procedural limitations that governed the amendment process. These limitations were created by Article XIII o f the Articles o f Confederation and by the Act o f Congress pursuant to which the convention had been called. Under the Act the con­ vention was to consider and propose amendments to the Articles, and the amendments were to become effective when approved by Congress and each o f the States.3 The Act was declaratory o f the Articles themselves. The Articles allowed for amendment, but they declared that the Union o f the 13 States would be “ perpetual” and that the government could not be altered unless the alteration were “ agreed to in a Congress o f the United States * * * and * * * confirmed by the Legislatures o f every S tate.” Article XIII. ’See Dellinger, “ The Recurring Question o f the ‘Limited’ C onstitutional C onvention,” 88 Yale L .J. 1623 (1979); Van Alstyne, “ Does Article V Restrict the States to Calling Unlimited Conventions Only?—A L etter to a Colleague,” 1978 D uke L .J. 1295; Rhodes, “ A Limited Federal Constitutional C onvention,” 26 U. Fla. L. Rev. 1 (1973); Bonfield, “ The Dirksen Amendment and The Article V Convention Process,” 66 Mich. L. Rev. 949 (1968); Note, “ Proposed Legislation on the Convention M ethod o f Am ending the United States C onstitu­ tio n ,” 85 Harv. L. Rev. 1612, 1629 (1972); Black, “ Amending the Constitution: A L etter to a Congressman,” 82 Yale L .J. 189, 202-03 (1972); Special C onstitutional Convention Study Com m ., American Bar Assoc., “ Am endment o f the C onstitution by the Convention M ethod Under Article V” (1974); Pullen, “ The Application Clause o f the Am ending Provision o f the Constitution” (1951) (unpublished thesis on file at University of N orth Carolina Library); Orfield, Amending the Federal Constitution (1942); Jam eson, A Treatise on Constitutional Conventions (4th ed., 1887); Bonfield, “ Proposing Constitutional Am endm ents by C onven­ tio n ,” 39 Notre Dame Lawyer 659 (1964); Black, Handbook o f American Constitutional Law (West P ub. C o., 1927); Brickfield, “ State Applications Asking Congress to Call a Federal Constitutional C onvention,” House Com m, on the Judiciary, 87th C ong., 1st sess. (Comm, print, 1961); Brickfield, “ Problems Relating to a Federal C onstitutional C onven­ tio n ,” House Com m, on the Judiciary, 85th C ong., 1st sess. (Comm, print, 1957); Dixon, “ Article V: The Com atose Article o f O ur Living C onstitution?” 66 Mich. L. Rev. 931 (1968); “ Ervin, Proposed Legislation to Implement the Convention M ethod o f Amending the C onstitution,” 66 Mich. L. Rev. 875 (1968); G raham , “ The Role o f the States in P ropos­ ing Constitutional A m endm ents,” 49 ABAJ 1175 (1963); Kauper, “ The Alternative A m end­ ment Process: Some O bservations,” 66 Mich. L. Rev. 903 (1968); Packard, “ The States and the Amending Process,” 45 ABAJ 161 (1959); Forkosch, “ The Alternative Amending Clause in Article V ,” 51 Minn. L. Rev. 1053, 1075 (1967). M Elliot, The Debates in the Several State Conventions on the Adoption o f the Federal Constitution 120 (2d ed., 1836) (hereinafter “ Elliot” ). 391 The requirement o f unanim ous consent stood squarely in the way o f what a majority o f the delegates wanted to do. They wanted to propose sweeping changes in the old system, and they had no reason to believe that their proposals would be universally accepted. Rhode Island had not even bothered to attend the convention. Congress, whatever views it might otherwise have entertained, stood to be abolished by the proposed reform. If the Framers adhered to the amendment procedure set out in the Articles and in the statute, they faced a prospect o f failure. Because they greatly feared the consequences o f failure,* they boldly chose to ignore the law .5 They drafted their new Constitution in secret session; and when they emerged at the end o f the summer, they proposed that their plan should take effect upon ratification, not by Congress or by the legislatures o f the States, but by popular conventions in the States. Moreover, they proposed that ratification by conventions in nine States would be “ sufficient for the Establishment of this C onstitution between the States so ratifying the Same. ” See C onstitution o f the United States, Article VII, Clause 1. [Em­ phasis added.] In a word, the Framers invited conventions in nine States to abolish the Union. Congress received this plan and demurred, transmitting it to the States. Conventions in 11 States approved it, and the plan went into effect. In March, 1789, a new Congress (a Congress o f the eleven United States of America) assembled in New York; and it was clear by then that a funda­ mental change had occurred. In accordance with the Framers’ design, under the compulsion o f political necessity and in the face o f positive law to the contrary, a confederation o f 13 States had been abolished by action o f a dedicated majority; and a new government, resting on different principles, had been established among 11 o f the former confederates.6 ‘George W ashington, who was not given to overstatem ent, summarized the desperate con­ dition o f the Confederacy in the following way: T hat something is necessary, all will agree; for the situation of the General Govem m t. (if it can be called a govem m t.) is shaken to its foundation, and liable to be overset by every blast. In a w ord, it is at an end, and unless a remedy is soon applied, anarchy and confu­ sion will inevitably ensue. Letter to Thom as Jefferson, May 30, 1787, reprinted in 29 Writings o f Washington 224 (Fitz­ patrick ed., 1931). ’As Edm und Randolph put it, “ There are great seasons when persons with limited powers are justified in exceeding them * * * .” 1 Max Farrand, The Records o f the Federal Con­ vention o f 1787, 262 (rev’d ed., 1966) (hereinafter, “ F arrand” ). George Mason agreed that “ there were besides certain crises, in which all ordinary cautions yielded to public necessity.” 1 Farrand a t 338. A t another point in the debate Jam es Wilson declared that “ lt)he house on fire must be extinguished, w ithout a scrupulous regard to ordinary rights.” 2 Farrand at 469. ‘The abolition o f the Articles o f C onfederation and the establishment o f the new C onstitu­ tion was a peaceful revolution. It was an act o f will that altered a frame o f government in a way that was inconsistent with existing law governing how such alterations were to be made. Madison himself adm itted th at this was the best legal argum ent against what the Framers had done: Their proposal was defective because the new C onstitution was to be approved and established in a way that was contrary to positive law. The Federalist, No. 40, at 263 (Cooke e d ., 1961). Madison, a good lawyer, had no answer for that argum ent on the merits. There was no answer. He could only say that if the proposal were carried into execution on the ap­ proval o f conventions in nine States, a justification could be found, not in positive law, but in the fundam ental dem ocratic principles to which the Declaration o f Independence had re­ ferred—the “ Laws o f N ature and o f N ature’s G o d ” that conferred upon all men a right to alter bad governments in the face o f existing legal forms. Id. at 265. 392 We have begun our discussion with this page o f history to illustrate two points that have caused no little confusion in the traditional debate over limited, in contrast to general, conventions. We want to put them behind us. First, the Convention o f 1787 shows that law cannot execute itself. The people and their officers execute the law; and when enough o f them choose to disregard it, law is ineffective. Whatever Article V o f the C on­ stitution may require or permit in the way o f legal limitation on the proc­ ess o f amendm ent by convention, it can be no more effective than was its predecessor, Article XIII o f the Articles o f C onfederation, if the citizens and their representatives undertake to disregard it. The second point is related to the first. Some have argued that the C on­ vention o f 1787 demonstrates the illimitable nature o f the convention process and the futility o f academic inquiries into the legal parameters o f that process, whatever they may be. We do not share that view. It is true that in revolutionary times, as in 1787, law may be disregarded and, in­ deed, overturned. But for 200 years this has been a Nation under law; and because the history o f the Convention o f 1787 shows so clearly how the observance and preservation o f law, even fundamental law, depends ultimately on the consent o f the people and their representatives, it demonstrates the importance and the urgency o f questions such as the one you have raised. If it is for the people and their officers to execute Arti­ cle V, it is our duty to understand what Article V requires and what it permits. II. The Procedural Nature o f Article V Article V contains two provisions that expressly limit the scope o f the alterations that may be made in the C onstitution. The first—“ that no Amendment which may be made prior to the Year One Thousand Eight Hundred and Eight shall in any M anner affect the first and fourth Clauses in the Ninth Section o f the First Article” —was legally and politically significant when drafted, but it has no present force. The second—that “ no State, without its Consent, shall be deprived o f its equal Suffrage in the Senate” —establishes a constitutional principle o f fundamental importance. These limitations on the amendability o f the C onstitution are significant for our purposes because they are the only limitations on subject m atter that are expressly set out in Article V. With regard to all possible am end­ ments, except those prohibited by these provisions, Article V is restrictive only insofar as it restricts the procedures by which amendments may be proposed and ratified. The question we must answer is whether there are circumstances in which the procedures m andated by Article V may operate 393 in such a way as to confine the constitutional power o f an Article V con­ vention to a given field.7 We will state our conclusions in advance. First, we think that if a con­ vention for proposing amendm ents were called under Article V, the consti­ tutionally m andated procedures would operate to deprive the convention o f power to make constitutionally viable proposals except with respect to subjects within a predeterm ined field. That field, however broad or nar­ row, would be defined by the extraordinary legislative act that initiates the convention process, the “ A pplication” o f the legislatures of the States. We will explain that conclusion and the reasons for it in Sections III and IV below. Second, we think that Article V gives Congress no power to provide for the ratification o f any constitutional proposal that is not developed and proposed in accordance with the procedures contem plated by Article V. Just as Congress would have no power to submit one o f its own constitu­ tional proposals for ratification unless two-thirds o f the Members o f both Houses were in accord that the proposal was necessary and desirable, C on: gress would have no power to provide for the ratification o f any proposal propounded by a constitutional convention unless that proposal were responsive to the application that justified the gathering o f the convention in the first instance. We will explain that conclusion and the reasons that support it in Section IV. III. The Role o f the Legislatures o f the States O ur analysis is dictated by the form o f the procedure set out in the consti­ tutional text. T hat procedure involves at least five different acts or steps: an initial “ A pplication” by two-thirds o f the legislatures o f the States; a “ call” to convention issued by Congress; a parliamentary convocation—the con­ vention itself—attended by delegates selected and commissioned in a m an­ ner not specified by Article V; a designation by Congress o f a “ Mode o f Ratification” for any proposal made by the convention; and ratification of any such proposal by three-fourths o f the States in accordance with the mode prescribed by Congress. For our purposes, the critical step in this process is the first one, the “ A pplication” o f the legislatures o f the States. W hat is this “ A pplication?” W hat part does it play in the convention process? W hat power does it give to the legislatures o f the States? ’The notion that the C onstitution may give Congress power to impose adventitious subject m atter restrictions on the convention process is one that finds no support in the text o f A rti­ cle V or in the drafting history. Congress, o f course, has power to m ake “ laws which shall be necessary and proper for carrying into Execution” the powers conferred upon it by Article V; but there is nothing in Article V that suggests that it would be necessary or proper for C on­ gress to create subject m atter restrictions that do not flow from the operation o f Article V itself. Indeed, as we will discuss below, the history o f the clause suggests rather clearly that it would be altogether unnecessary and im proper for Cohgress to do so. The Framers created the convention procedure for the very purpose o f preventing Congress from blocking am end­ ments desired by the legislatures o f the States and the delegates o f the people in convention. 394 The participants in the traditional debate over limited in contrast to general conventions have given widely, sometimes wildly, different answers to these questions. Some have argued that the application can be nothing more than a neutral request for a convocation, a request that a forum be established in which constitutional questions may be debated and proposals made. Even if the legislatures have a specific problem in mind, even if they request a convention because they want the C onstitu­ tion to be changed in some particular way, they must leave it entirely to the delegates to determine the course that the convention will take. Indeed, if their application manifests anything other than an unqualified desire for a convention with power to discuss and propose any amendm ent the delegates may want to propose, it is void. It cannot provide a constitu­ tional basis for a convention under Article V.® At the other extreme, some have thought that the application process is designed to give the legislatures plenary power to determine both the form and the content o f the proposals that the convention may submit to the States for ratification. Not only may the legislatures request that Congress call a convention to consider a particular problem or a particular pro­ posal, they may frame am endments and dem and that the convention do nothing more than vote on those amendm ents as framed. This view has been espoused in one form or another by several scholars,9 and it lies at the heart of some o f the applications'0 that have been submitted to Congress by the States from time to time. We cannot adopt either o f these views—the view that the legislatures have no power to determine what work the convention may or must do, or the view that the legislatures have plenary power to propose amendm ents and to require that the convention do nothing more than emit them or quash them as it finds them good or bad. The first theory is mistaken. The second is viable, if at all, only in the most limited circumstances. The cor­ rect interpretation, we believe, lies elsewhere. The textual and historical reasons for that opinion are given in the paragraphs that follow. Text. “ Congress * * * on the Application o f two thirds o f the Legislatures o f the States, shall call a Convention for proposing A m end­ ments * * * .” This language lends little support to the notion that the 'See, e.g., Black, “ Am ending the C onstitution: A Letter to a Congressm an,” 82 Yale L .J. 189, 202-03 (1972). 'See, e.g., Van Alstyne, “ Does Article V Restrict the States to Calling Unlimited C onven­ tions Only?—A Letter to a Colleague,” 1978 Duke L .J. 1295. l0The applications have come in a wide variety o f forms. The following passage from a re­ cent resolution adopted by the legislature o f the State o f Kansas (May 19, 1978) requests a convention for the “ sole and exclusive” purpose o f proposing an am endm ent, the specific terms of which are prescribed by the applicant: Be it further resolved: T hat alternatively, the Legislature o f the State o f Kansas hereby makes application to the Congress o f the United States to call a convention for the sole and exclusive purpose o f proposing an am endm ent to the Constitution o f the United States which would require that, in the absence o f a national emergency, the total o f all appropriations made by the Congress for a fiscal year shall not exceed the total o f all estimated federal revenues for such fiscal year. 395 legislatures o f the States may dem and that Congress call a constitutional convention for the sole purpose o f voting up or down on proposals that the legislatures themselves have brought forward. The Framers were good draftsmen. W hen they wanted to give one body o f government a veto over the proposals o f another, they were able to use words that clearly ex­ pressed that purpose. In Article V itself they gave the States power to ap­ prove or disapprove what a constitutional convention might propose; but the language o f Article V gives no indication that they intended this ratification process to be a second negative, a veto cast or withheld after the convention itself had voted up or down on someone else’s work. As portrayed in the text, the convention is a respondent, not a censor. It is a “ Convention for proposing A m endm ents.” It responds to an application and call by making proposals for constitutional change. W hat is the correct reading o f the text? The polar view—the view that every Article V convention must be a general convention—is sometimes defended on textual grounds. It is said that the text has a plain meaning; that the legislatures are entitled to apply for a “ convention” and a “ con­ vention” only and that this convention, being a “ Convention for propos­ ing A m endm ents,” must be a convention for proposing amendments on any subject the delegates think pro p er." This argument is unpersuasive. The text does not say that the legislatures are to apply for a convention and a convention only. It says th at they are to make an “ A pplication.” The text does not say that the convention must be a convention for proposing amendments on any sub­ ject the delegates think proper. It says that the convention will be a “ C on­ vention for proposing A m endm ents.” These words are generic. They could describe a process in which the legislatures request, and Congress calls, a general convention, a convention for proposing amendments on any subject whatever. They could describe a process in which the legislatures request, and Congress calls, a convention for proposing amendm ents to deal with some particular problem or constitutional issue. There is little in the text that encourages us to prefer the one interpretation to the other. There is nothing in the text that requires us to choose between the two. W hen we turn from the text and consult the relevant historical materials, the meaning o f the convention clause comes more clearly into focus. We have outlined much o f the relevant history in detailed notes, which are appended to this m em orandum. In the discussion that follows we will describe the portions o f that history that have decisive bearing on the question at hand. The Effort to Revise the Articles. A lthough the Articles o f Confeder­ ation allowed for amendm ent and specified that the unanim ous consent o f the States and Congress would be necessary before any alteration could "See Black, supra, at 203. 396 occur, they established no regular m ethod by which proposals for change could be formulated and submitted to the States and Congress. Thus when it became clear in the mid- 1780s that changes in the Articles were neces­ sary, the advocates o f change were obliged to fashion ad hoc, irregular procedures in an effort to build consensus for the proposals they wished to bring forward. They drew on recent experience. Extraordinary intercolo­ nial convocations had done much to spark and direct the rebellion against Great Britain. An interstate convention, the Continental Congress, had produced the Articles o f Confederation. Convention procedures had been used or proposed in some States to make or alter fundamental law .12 With these precedents in view, the activists set about to revise the Articles through a convention process. Virginia took the lead. In 1786 it invited all the States to send delegates to a convention at Annapolis “ to take into consideration the trade o f the United States” and to propose a measure that would empower the na­ tional government to establish a uniform system o f trade regulation.13 Only five States accepted this invitation; and Hamilton and Madison, two o f the youngest delegates, who had high hopes for a stronger union, were able to persuade the others that little could be accomplished by so few. Hamilton drafted a report that recommended that a second convention be called. This convention would be attended by delegates from all the States and it would have power to consider, not trade and commerce only, but ,JBy 1787, five State constitutions provided for amendm ent by way o f convention. Three o f these appear to have provided for a convention the powers o f which could be limited to a particular subject m atter. Georgia’s Constitution o f 1777 provided: No alteration shall be made in this constitution without petitions from a m ajority o f the counties, and the petitions from each county to be signed by a m ajority o f voters in each county within this State; at which time the assembly shall order a convention to be called for that purpose, specifying the alterations to be made, according to the petitions pre­ ferred to the assembly by the m ajority o f the counties as aforesaid. [Emphasis added.] 1 Poore, Federal and State Constitutions, Colonial Charters and other Organic Laws 383 (1872) (hereinafter “ Poore” ). Pennsylvania’s constitution o f 1776 provided: T he said council o f censors shall also have power to call a convention, to meet within two years after their sitting, if there appear to them an absolute necessity o f amending any article o f the constitution which may be defective, explaining such as may be thought not clearly express, and o f adding such as are necessary for the preservation o f the rights and happiness o f the people: But the articles to be am ended, and the am end­ ments proposed, and such articles as are proposed to be added or abolished, shall be promulgated at least six m onths before the day appointed for the election o f such con­ vention, for the previous consideration o f the people, that they may have an opportunity o f instructing their delegates on the subject. [2 Poore at 1548.] The provision for am endm ent in Verm ont’s Constitution o f 1786 was almost identical to that o f the quoted portion o f Pennsylvania’s C onstitution. Id. at 1874-75. The reference to "am ending any article * * * which may be defective” and the requirement for prom ulgat­ ing the “ articles to be am ended, and the amendm ents proposed, and such articles as are pro­ posed to be added or abolished” indicates to us that the convention was to be limited to cer­ tain topics. The two other States—Massachusetts and New Ham pshire—had constitutions that appear to have allowed the convention more latitude. See 1 Poore at 972 (Massachusetts Constitution o f 1780); 2 Poore at 1293 (New Hampshire C onstitution o f 1784). "Com m ager, Documents o f American History 132 (9th ed., 1973). 397 any m atter that required constitutional correction. Ham ilton’s report was approved. W hen it was published, it became the “ direct occasion o f the gathering o f the convention in Philadelphia that framed the constitution o f the United States.” 14 Before we describe the nature o f the proceedings in Philadelphia, we want to emphasize a legal point that is often overlooked in conventional accounts. The Annapolis Convention and its successor in Philadelphia dem onstrate clearly and concretely that under the Articles o f Confedera­ tion a convention could be convened for the purpose o f considering con­ stitutional problems and formulating proposals for change; and it could be given narrow or broad powers depending on the nature o f the task assigned to it. The Articles did not spell this out. They did not establish procedures for the formulation o f constitutional proposals. But they were permissive. They permitted the States and Congress to establish such pro­ cedures; and when the States and Congress exerted that power, the result was first a limited convention in A nnapolis15 and then a general conven­ tion in Philadelphia one year later. In our view this is the most im portant single fact in the development of Article V. W hen the Framers drafted Article V, they were not writing on a clean slate. They had come together to rewrite a docum ent that had al­ ready permitted a creative convention process to go forward, first at An­ napolis and then at Philadelphia itself; and when we view their work from that perspective, the question o f purposes and intents comes more sharply into focus. The Framers “ constitutionalized” the convention process. Did they mean to confirm and preserve the flexible procedure that was- per­ mitted under the Articles, or did they mean to replace it with a rigid new system in which only one sort o f convention, a general convention, was possible? As we review their work, we shall keep that question before us. The Proceedings o f the Convention of 1787. The delegates to the Philadelphia Convention agreed rather early that they should create a regular mechanism by which the new Constitution could be am ended.16 To '"Farrand, The Framing o f the Constitution (1932). "T he Annapolis Convention was clearly a convention with limited powers. The delegates were so sensitive on that point that they felt there might be some question whether their recom mendation o f a general convention was strictly within their commission, and they took care to justify it. Ham ilton wrote: If in expressing this wish [for a general convention], or in intimating any other senti­ m ent, your Commissioners should seem to exceed the strict bounds o f their appoint­ m ent, they entertain a full confidence, that a conduct, dictated by an anxiety for the welfare o f the United States, will not fail to receive an indulgent construction. [Commager, Documents o f American History 133 (9th ed., 1973).] M adison’s later comm ent that the A nnapolis Convention “ did not scruple to decline the limited task assigned to it, and to recom mend to the States a Convention with powers ade­ quate to the occasion,” and that the public mind “ favored the idea there o f a Convention with fuller powers for amending the C onfederacy,” recognized that a constitutional conven­ tio n ’s powers might vary according to its m andate. Preface to Debates in the Convention of 1787, 3 Farrand at 545, 546. [Emphasis added.] '•A complete account o f the proceedings relevant to Article V is set out in Appendix I. 398 accommodate that agreement, the committee that had been assigned the task o f preparing the first draft o f the Constitution, the Committee of Detail, submitted a modest proposal that was accepted by the convention after a brief debate. The form o f the proposal was predictable, given the events o f the preceding few years: On the application o f the Legislatures o f two thirds o f the States in the Union, for an amendment o f this Constitution, the Legislature o f the United States shall call a Convention for that purpose. [2 Farrand at 188.] We see, then, that when the Framers first undertook to fashion an am end­ ment mechanism, they borrowed on the procedure that the States them ­ selves had fashioned under the Articles. It was a mechanism that involved an interstate convention, called on application o f the States. Two other features o f this proposal deserve our attention. First, there was no require­ ment for ratification o f the convention’s action. Was such a requirement implicit? Second, the subject o f the States’ application, the “ thing” for which they were to apply, was “ an amendment o f” the Constitution. What did the Framers mean by that language? Further proceedings would clarify that point. Eleven days after the original proposal was accepted, it was recon­ sidered. There were objections. Elbridge Gerry noted that it contained no requirement for ratification o f the mandatory action taken by the conven­ tion, and he feared that a majority o f the convention might therefore bind the Union to innovations that would subvert the constitutions o f the States.17 Alexander Hamilton noted that the provision gave the State legislatures a right to “ apply for alterations” but gave no similar right to the national legislature. This omission was problematical, because the na­ tional legislature would be the first to perceive the necessity o f am end­ ments, and the State legislatures would not apply for alterations “ but with a view to increase their own power.” 18 Finally, James Madison, with his usual foresight, objected that the convention process was vague and uncer­ tain: How was the convention to be formed? By what rule was it to decide the questions before it? What would be the force o f its acts?” As a result o f these objections the proposal o f the Committee o f Detail was replaced, after intervening changes, with a proposal drafted by Madison: The Legislature of the U— S— whenever two thirds o f both Houses shall deem necessary, or on the application o f two thirds o f the Legislatures o f the several States, shall propose amendments to this Constitution, which shall be valid to all intents and pur­ poses as part thereof, when the same shall have been ratified by three fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the U.S. [2 Farrand at 559.] "2 Farrand at 557-58. "2 Farrand at 558. "Id. 399 This provision did three things: First, to satisfy Hamilton, it gave the na­ tional legislature power to propose am endments on its own motion when­ ever two-thirds o f both Houses thought it necessary to do so. Second, to satisfy Madison, it eliminated the convention as a device for formulating amendments and replaced it with a system in which the national legislature would propose am endm ents on the application o f two-thirds o f the legislatures o f the States. Finally, to satisfy Gerry, it provided that no amendment would become effective unless it were ratified in final form by three-fourths o f the States. M adison’s proposal was a significant one. It was a near predecessor o f Article V, and it clarified the point that concerns us most. W hat role did the Framers intend for the legislatures o f the States to play in the am end­ ment process? Given the terms o f M adison’s proposal, there were two possibilities. It is conceivable that the legislatures were to apply to C on­ gress for some unspecified change, any change, in the hope that Congress would propose am endm ents in the areas where they, the legislatures, thought amendm ents were necessary. The other possibility was that they were to apply to Congress for the changes that they, the legislatures, favored. They were to apply for amendments to the Constitution and to dem onstrate to Congress, through their applications, that there was con­ sensus among them as to the need for change in particular areas. It cannot be argued with any force that M adison’s proposal con­ templated the first procedure, the application for a pig in a poke. The proposition was not that two-thirds o f the legislatures would bestow on Congress, through their applications, a general commission to propose whatever amendments it thought necessary. Under M adison’s system C on­ gress had that power already, whenever there was consensus among twothirds o f both Houses. Rather, as M adison himself later confirmed, the legislatures were to apply to Congress for amendments to the C onstitu­ tion, amendments that they, the legislatures, favored; and whenever there was consensus among two-thirds o f them as to the need for an amendment or amendments, M adison’s proposal required Congress to make specific proposals responsive to that consensus. Two days before they finished their work, just five days after M adison’s proposal had been accepted, the Framers reviewed the amendment mech­ anism once again. Roger Sherman spoke first. He feared that threefourths o f the States (the num ber needed for ratification o f proposals in­ itiated either by Congress or by the State legislatures) might “ do things fatal to particular States,” and he thought that the C onstitution should therefore contain certain limitations on the kinds o f amendments that could be made in it. In particular, he thought that no amendm ent should be permitted that would affect a State in its “ internal police or deprive it o f its equality in the Senate.” 20 He ultimately prevailed on the latter point. 102 Farrand at 629. 400 Second, George Mason noted that Congress was the only agency that was given power to propose amendments. He feared that Congress might abuse that power by refusing to propose amendments that would be beneficial to the people.21 G ouvem eur Morris and Elbridge Gerry then suggested that instead o f giving Congress power to propose amendments on the application o f the legislatures, the Constitution should require C on­ gress to call a convention on application o f the legislatures. This was the critical stage in the development o f Article V. The Framers accepted the suggestion that Morris and Gerry had brought forward, and the result was the Convention Clause as we know it today. W hat was the purpose o f the change? We must be clear on what was changed and what was not. There was only a slight alteration in the text. It came in the words that described the powers o f Congress: M adison’s language—“ Congress * * * on Applica­ tion * * * shall propose Amendments to this C onstitution” —became “ Congress * * * on Application * * * shall call a Convention for pro­ posing Am endm ents.” There was no alteration in the description o f what the legislatures were to do. They were to make an “ Application” in each case. In procedural terms the change was equally modest. In both in­ stances the legislatures were to make an “ A pplication,” and a separate body (Congress or the convention) was to propose amendments. The pro­ cedural change came with the introduction o f an intervening step, a “ call” to convention. This change was necessary for the simple reason that the convention, unlike Congress, is not a standing body. It must be called into being before it can do its work. In substantive terms the change was dramatic. Morris and Gerry stripped Congress o f power to propose amendments and relegated it to the ministerial function o f calling a convention. The critical question is whether they intended to do anything more than this. They intended to alter the role o f Congress. Did they intend to alter the role o f the States? The whole point o f the application process, under M adison’s approach, was that it provided the legislatures o f the States with a means o f obtaining proposals responsive to their own views concerning the need for constitu­ tional change. In relieving Congress o f power to make those proposals, did Morris and Gerry intend as well to strip the legislatures o f power to apply for favored amendments, or did they intend merely to replace one proposing authority (Congress) with another (the convention)? Fortunately, the brief record o f the debate over Morris’ and Gerry’s pro­ posal gives us some insight into that question. As soon as the proposal was made, James Madison rose to comment on it. He said he did not see why Congress “ would not be as much bound to propose amendments applied for by two thirds o f the States as to call a Convention on the like appli­ cation.” He saw no objection, however, against providing for a convention " Id. 401 “ for the purpose o f amendments, except only that difficulties might arise as to the form, the quorum etc. which in Constitutional regulations ought to be as much as possible avoided.” 22 M adison’s statement goes to the heart o f the question before us. It illus­ trates three points. First, it shows conclusively that under his proposal the legislatures o f the States were entitled to apply for amendments to the C onstitution, and that Congress was duty bound to make responsive pro­ posals whenever two-thirds o f them had done so: Congress was “ bound to propose amendments applied for by two thirds o f the States.” Second, it suggests rather strongly that the convention proposal was an attem pt to diminish the power o f Congress over the process o f amendment initiated by the applications o f the legislatures. That was how Madison interpreted it. He was saying that although he had no substantial objection to the con­ vention device, he could see no real reason for it, given its purpose. It pro­ vided neither more nor less protection from congressional abuse than the procedure he had fashioned, for “ Congress would be as much bound to propose amendments applied for by two thirds o f the States as to call a convention on the like application.” Finally, M adison’s statem ent tells us a good deal about the intended role o f the legislatures o f the States. His statement is significant both for what it says and for what it does not say. Remember that the purpose of M adison’s application procedure was not to give Congress power to pro­ pose amendments. (Congress had that power already.) The purpose was to give the State governments a right to apply for amendments. If Morris and Gerry had intended to change all that, stripping the legislatures o f power to dem and proposals responsive to their views, the mere substitution of one proposing authority for another would have been the least significant part o f their plan. M adison’s statem ent betrays no hint that such a radical change was in the offing. Indeed, M adison’s statement suggests that the role o f the legislatures would be unaltered under M orris’ and Gerry’s pro­ posal: Congress would call a convention for proposing amendments “ on the like application.” The Ratification Debates. The notion that the amendment procedure should make some provision for the regular governments o f the States and should be responsive in part to their views concerning the need for con­ stitutional change was not a radical notion in 1787. In fact, as we have seen, this was one o f the few propositions that was not debated in connec­ tion with the amendm ent question. The Framers had real doubts about the role that the new national legislature should play in the am endment proc­ ess. They were also concerned that the C onstitution should not be so freely amendable that a m ajority o f the States would be able to oppress the others by altering the supreme law o f the land in some discriminatory way. But if the Constitution were to be amended at all, there was not much ” 2 Farrand at 629-30. 402 doubt that the States as States were proper parties to suggest where the amendments should come and to dem and that proposals responsive to their views be formulated. This should come as no surprise. Repeated assertions o f Federal power have enhanced the role o f the Federal Government in our national life, but in 1787 the State governments were the most im portant governments in the Union. It was they who had created the Union; and when questions arose concerning the adequacy o f the Articles, they were very much the parties in interest. For that reason alone it was politic, and perhaps even necessary from the standpoint o f securing ratification o f the new C onstitution, that the States, acting through their regular governments, should have been given a means o f obtaining viable proposals for change responsive to their own views concerning the need for change. We have suggested that the Framers intended to provide them with such a means; and when the Framers published their work and undertook to defend it, they and their allies took care to reassure the States on that point. A few o f the relevant remarks, made during the critical m onths when ratification o f the new Constitution was still in doubt, are set forth below. Many opponents o f the new C onstitution found it so objectionable that they argued that the question o f revising the Articles should be subm itted to a second general convention at which the imperfections in the docum ent produced by the Framers could be eliminated. Alexander Hamilton, tak­ ing his cue from John Jay, argued forcefully in The Federalist that even if the new C onstitution were thought to be imperfect, it would be far easier to remove the imperfections by amending it after it had been adopted than by convening a second general convention for that purpose prior to ratification. His argument on that point is perhaps the clearest statem ent by any o f the Framers concerning the nature and significance o f the Convention Clause.” At a second general convention, Hamilton said, many questions would arise; and “ [m]any o f those who form the majority on one question may become the minority on a second, and an association dissimilar to either may constitute the m ajority on a th ird .” 24 As a result, at a second general convention there would be “ an immense multiplication o f difficulties and casualties in obtaining the collective assent to the final ac t.” 25 By contrast, under the new Constitution, if it were adopted, reformers would be able to utilize the surgical amendment process set out in Article V. It would be un­ necessary to attem pt more than one improvement at a time. Proposed amendments “ might be brought forward singly * * * . [T]he will o f the requisite number would once bring the m atter to a decisive issue. And con­ sequently, whenever nine or rather ten States were united in the desire o f "See, The Federalist, No. 85, at 591-93 (Cooke ed., 1961). "Id. at 592. ” Id . 403 a particular amendment, that amendment must infallibly take place * * * . [T]wo-thirds [nine] may set on foot the measure, three-fourths [ten] must ratify.” 26 Could the national legislature frustrate this process? It could not. The national legislature controlled one o f the two amendment mechanisms, but not the other. Congress would be obliged to call a convention on the ap­ plications o f two-thirds o f the States. Would the legislatures be able to muster the necessary two-thirds? They would. “ However difficult it may be supposed to unite two-thirds or three-fourths o f the state legislatures, in amendments which may affect local interests, [there cannot] be any room to apprehend any such difficulty in a Union on points which are merely relative to the general liberty or security o f the people. We may safely rely on the disposition o f the State legislatures to erect barriers against the encroach­ ments o f the national authority.” 27 Hamilton was saying, in sum, th at if the State legislatures wanted to perfect the new C onstitution or “ to erect barriers against the encroach­ ments o f the national authority,” they could utilize the convention pro­ cedure, they could bring measures forward with that end in mind, and they could do this without submitting to the difficulties o f a “ general” conven­ tion in which disagreements over other points might prevent or impede remedial action. The State legislatures could use the convention procedure without hazarding a general convention. Madison made a related observation regarding the role o f the State gov­ ernments. He said that the Framers had foreseen “ that useful alterations will be suggested by experience.” They had therefore created an am end­ ment mechanism that “ equally enables the general and the State govern­ ments to originate the am endm ent o f errors as they may be pointed out by the experience on one side or on the o th er.” 28 Some have attem pted to cast this statement in a different light, but we think that M adison’s meaning is clear. The State governments, like the national government, would discover faults or “ errors” in the Constitution from time to time; and the State governments, like the Federal Government, had been given a mechanism by which their views regarding the correction o f these faults could be given constitutional effect. The State governments were entitled to ask for the correction, not o f errors perceived by others, but o f errors perceived by themselves. W hat gave them this right? It was the convention procedure set out in Article V. O ther statements by the Framers bear this point out. W ashington, who had presided over the Convention o f 1787, said flatly that the “ constitu­ tional door is open for such am endm ents as shall be thought necessary by nine States.” 29 Nine, o f course, was the num ber required to originate the “•Id. “ Id. at 593. ‘'T he Federalist, No. 43, at 296 (Cooke e d ., 1961). " L e tte r to John A rm strong, April 25, 1788, reprinted in 29 Writings o f Washington 466 (Fitzpatrick e d ., 1939). 404 amendment process. Judge Dana o f Massachusetts said that if specific amendments were generally wished for, “ two thirds o f the several States [could] apply for the call o f a convention to consider them .” 30 In Virginia, Wilson Nicholas predicted that the convention procedure would prove to be a convenient m ethod o f amendment because, among other things, “ the conventions which shall be called will have their deliberations confined to a few points, no local interests to divert their attention; nothing but the necessary alterations.” 31 As against the critics o f the new Constitution who thought that amendments should be obtained prior to ratification, Madison answered that “ they cannot but see how easy it will be to obtain subsequent amendments. They can be proposed when the legislatures of two thirds o f the States shall make application for that purpose.” 32 Hamilton, Madison, W ashington, and their allies were perhaps guilty o f over-argument, but we cannot believe that they were dissembling. We think their remarks about the ease and desirability o f introducing subse­ quent amendments to the Constitution through the convention process show clearly that they envisioned that the States could use that process for the purpose o f introducing into the Constitution particular amendments deemed necessary by the States and that they could do this without reopen­ ing the constellation o f other issues that the delegates in Philadelphia had so lately resolved. The legislatures could invoke the convention process for a particular purpose without risking a general convention.33 Summary. A fter reviewing the text in light o f the relevant historical materials, we are inclined to think that the Convention Clause has been misnamed. It should have been named the “ Application Clause,” because its basic purpose was to provide the regular governments o f the States with 102 Elliot at 138. >'3 Elliot at 102. “2 Elliot at 629-30. ’’The Federalists’ praise o f the convention procedure as a convenient device for introduc­ ing postratification am endm ents died out rather quickly after the ratifying convention in New York, the last key State to ratify the Constitution, narrowly gave its approval and then immediately circulated a letter urging the States to petition for a second general convention to redo what the Framers had done. The Virginia Assembly followed with a slightly narrower petition for a convention to consider the defects that had been suggested in the various State ratifying conventions. The Federalists vigorously opposed the drive for a second general con­ vention, perceiving correctly that it would work to the advantage o f the anti-Federalists, reopening divisive issues. Juxtaposed to their arguments in support o f Article V, their o p ­ position to the initiative o f New York and Virginia lends further support to the view that the convention process was thought to be a flexible procedure could be used broadly (as New York proposed), or narrowly (as Ham ilton suggested), depending on the nature o f the con­ sensus am ong the originating States. See Appendix III. For some o f the pertinent original sources, see M adison, Letter to George Eve, January 2, 1789, 11 Papers o f James Madison 405 (Rutland ed., 1977); 3 Elliot at 630; 5 Writings o f James Madison 299, 311-12 (Gaillard H unt ed., 1904). See also M adison, Letter to G. L. Turberville, November 2, 1788, 5 Writings o f James Madison 299-300 (Gaillard H unt ed., 1904); Madison, “ General Remarks on the C onvention,” 3 Farrand at 455; Jefferson, Letter to William Short, December 8, 1788, 14 Papers o f Thomas Jefferson 344 (Boyd ed., 1958); Jefferson, Letter to William Carmichael, December 25, 1788, 14 Papers o f Thomas Jefferson 385 (Boyd ed., 1958). 405 a means o f applying for amendm ents to the Constitution; and the conven­ tion procedure was simply a device, one o f two devices considered by the Framers during the evolution o f the clause, through which the demands of 13 contentious States were to be reconciled. As described by the Framers and invoked by the States, the process was a flexible one, much like the nonconstitutional process that had been worked out by the States themselves under the Articles. The legislatures could use Article V to gather a general convention to build consensus for an integrated, com ­ prehensive revision o f the Constitution or for multiple amendments. New York and the anti-Federalists pressed for such a convention in 1788 and 1789. On the other hand, if the legislatures feared the divisiveness o f a general convention (as did Madison and his allies), yet were in substantial agreement regarding some particular problem or issue, they could, as Hamilton suggested, generate specific proposals through the convention procedure without risking a general convention. IV. Legal Aspects o f a Limited Application by the Legislatures If we had been able to conclude that the legislatures o f the States are en­ titled to apply for one thing and one thing only—a general conven­ tion—our inquiry would be at an end. Because we have concluded that the legislatures may invoke the convention process for different purposes and with limited objects in view, we must consider two additional questions. First, if different legislatures apply for different kinds o f conventions, how does Congress respond? Faced with applications at variance with each other, how does Congress judge whether the legislatures have made the sort o f application that can provide a basis for a call to convention? Second, if Congress does call a convention on the basis o f an application for something other than a general convention, what power does the con­ vention have? Does it have power to go beyond the application and make ratifiable proposals that are not in accord with the tenor o f the application and call? The answer to each o f these questions follows rather clearly and easily from what we have already said about the role o f the legislatures o f the States and the function o f the application procedure. When we have established this connection—the connection between the role o f the legislatures, the function o f the application procedure, the role o f C on­ gress in determining whether a convention should be called, and the power o f the convention itself—the political and legal logic o f the Convention Clause will come sharply into focus. Counting Application. If one-half o f the legislatures apply for a con­ vention for proposing am endm ents on the subject o f reapportionm ent and the other half apply for a convention for proposing amendments to abolish the electoral college, how should Congress respond?34 Article V J,The historical response o f Congress to the problem presented by applications for conven­ tion is described in some detail in Appendix II. The nature o f some o f the early applications and their bearing on the interpretation o f Article V are described in Appendix III. 406 says that Congress must call a convention whenever two-thirds o f the legislatures have made an “ A pplication.” If two-thirds or more o f them have applied for a convention, does it m atter that they are divided among themselves regarding the work that the convention should do? The historical materials that we have already discussed suggest that it matters very much indeed. The States cannot launch an amendment unless there is a consensus among two-thirds o f them that will provide a political basis for the proposal. Recall Ham ilton’s argument in The Federalist—if the new C onstitution were adopted, the States would be able to obtain amendments that would curb the powers of the central government, but it would take two-thirds o f them to float any given proposal—two-thirds to set the measure on foot. Washington said much the same thing. M adison’s analysis was the most revealing o f all. Madison said that Article V “ equal­ ly enables” Congress and the legislatures o f the States to originate the “ amendment o f errors” perceived at one level o f government or the other. In other words, the power o f the legislatures to initiate the amendment process is equal to that o f Congress. When can Congress originate “ the amendment o f errors” ? Congress can propose a constitutional am end­ ment if, but only if, there is an extraordinary agreement among two-thirds o f the Members o f both Houses that an am endment is necessary. If onehalf o f the Members favor an am endment on the electoral college, C on­ gress has no power to propose an amendment on either subject. Do the States have greater power? We are willing to take Madison at his word. Their power is equal to that o f Congress, not greater. Unless there is general agreement among two-thirds o f the legislatures over the nature of the change, or the area where change is needed (be it a general revision o f the Constitution or a change in some specific area), the am endment proc­ ess cannot go forward via the convention route. When we view the application process in that light, we begin to under­ stand the political wisdom o f Article V. The Framers wanted to make the Constitution amendable, but they understood the traum a o f the am end­ ment process. They had experienced it themselves. Through a great exer­ tion, they had established a new frame o f government, and they did not want additional proposals for change to be loosed on the young republic unless there were a firm basis for believing that the process would be worth the political cost. To provide a guarantee o f that sort, they established an exclusive two-track system for formulating viable, ratifiable constitutional proposals. Under that system no proposal for change can be issued by any authority unless there is a preexisting consensus supportive o f change among an extraordinary majority at one level o f the government or the other. How, then, does Congress determine when to call a convention? If the foregoing analysis is correct, Congress must answer two questions o f fact. What do the legislatures want? How many o f them want it? The Constitu­ tion does not simplify the task. It does not specify a form o f words or a style o f application through which the wishes of the legislatures are to be 407 transmitted to Congress. It permits them to apply for different things in dif­ ferent ways. But in the end Congress’ job is straightforward and unmysterious. Congress must simply assess the applications that are made, determine whether there is common ground among them, and call a convention when­ ever two-thirds of the applications exhibit a consensus supportive o f some particular constitutional change. This view o f the role o f Congress in counting divergent applications has been advocated by a substantial number o f commentators. See Appen­ dix II, note 3. It has also played an important role in the arguments o f some of the dissenters, who object at the threshold to the very idea of applications o f limited subject. The argument is this: If applications o f limited subject were permitted, Congress would be obliged to respond to them. It would be obliged to review them for content and make judgments from time to time about the nature of the consensus they express, if any. Moreover, if Con­ gress were ever to call a convention on the basis o f limited applications of limited subject, it might even be required or empowered to take legislative action in connection with the call that would limit the power o f the conven­ tion in accordance with the tenor o f the applications. But the drafting history o f the Convention Clause shows that the Framers did not want the national legislature to interfere with the convention process. They did not want Congress to make substantive judgments that could block or channel the development of constitutional proposals via the convention route. Ac­ cordingly, the State legislatures cannot be permitted to file applications of limited subject in the first place. They must file uniform applications for a convention process that are neutral with respect to subject. Only then—only when the task o f Congress is limited to that o f counting uniform applica­ tions for a convention with general powers—can the possibility o f imper­ missible congressional intervention be eliminated. We agree with the foundations o f this argument, but the conclusions are flawed, in our view. It is perfectly clear that the Framers intended that the national legislature would have no independent power to determine what a constitutional convention may or may not do; but it stands history on its head to argue that the Framers must therefore have intended to deny that power to the State legislatures and to abandon the question of constitutional change to a transient majority o f delegates at a convention with general powers. Conscientious scholars may differ over these points; but as we have stated above, we think the relevant historical materials demonstrate that the application procedure was designed to give the regular governments of the States an opportunity to apply for amendments favored by them, that the two-thirds requirement, which is present in both amendment mechanisms, was designed to ensure that no ratifiable constitutional proposal could ever be floated unless it were responsive to a preexisting consensus among an ex­ traordinary majority at the one level o f government or the other, and that the Framers inserted the convention device into the application process, not to frustrate either of these, purposes, but to guarantee that an entity other than Congress would be charged with the duty o f responding substantively to the applications o f the States. 408 Aside from the historical considerations, there is another difficulty here. The basic constitutional choice is between a flexible application pro­ cedure and a rigid application procedure—between a procedure in which the legislatures are free to apply for what they want, and a procedure in which they may apply for a general convention only. The choice between these two procedures simply cannot be made on the ground that the one gives Congress power to frustrate the desires of the other participants in the convention process, whereas the other does not. U nder the flexible procedure the legislatures are free to do precisely what they are entitled to do under the rigid one, and Congress is empowered to do neither more nor less. Under the flexible procedure the legislatures are free to apply for a general convention, if two-thirds o f them are willing to solicit and enter­ tain proposals on any subject; and Congress must respond whenever twothirds o f them have done so. The real difference between the two pro­ cedures lies, not in the way they allocate power between Congress and the legislatures, but in the way they allocate power between the legislatures and the convention itself. Under the rigid procedure the role of the con­ vention is to follow wherever its delegates lead; and the convention is in­ variably empowered to do so, whatever the desires o f the legislatures may be. Under the flexible procedure the convention is the servant o f the legislatures. Its function is to respond to the extraordinary consensus that was the predicate for the call. For all the reasons given above, we think the latter conception is the one to be preferred. It is the more defensible o f the two, given the history and logic o f Article V. Before passing to the final question, the question o f the power o f the convention, we want to say a word about a point raised at the beginning o f o u r discussion. How does'Congress treat an application that requests, not only that a convention be called to consider a particular problem or pro­ posal, but that the convention do nothing more than approve and issue a specific amendment containing terms that have been drafted by the appli­ cant? At the outset we stated that applications of this kind, which on their face appear to foreclose any possibility o f adjustm ent or compromise, are viable only in very limited circumstances. We are now in a position to see why that is so. If a legislature demands that a convention do nothing more than accept a predetermined draft, it drastically reduces the potential for agreement between its application and the applications o f other States. Even among applications directed at the same general problem, an appli­ cation that affirmatively excludes any approach but its own adds little if anything to the consensus required for the call to convention. We must take “ application” at face value. If the applicant wants a convention for the sole and exclusive purpose o f issuing its own proposal and none other, there can be no common ground between its views and the views o f any other applicant unless the other is willing to forego everything else and acquiesce in the narrow demand. The other is, o f course, free to acquiesce by modifying its application. But if its application remains at variance with the one, there is grave doubt that Congress could find, on the face o f the applications, any zone o f actual agreement between the two. 409 The Power of the Convention. If our conclusions regarding the role of the legislatures and the function o f the two-thirds requirement are correct, the ultimate question—the question o f the convention’s power—almost answers itself. We need to make only one additional analytical point. Anyone is free to make constitutional proposals, but no proposal can be accepted by the States and become part o f the C onstitution unless it is formulated in accordance with the procedures set out in Article V. The Department o f Justice or the State o f Michigan can make constitutional proposals; but these proposals however, meritorious or inviting, cannot be ratified by the States. Congress itself can make proposals, but it can submit them for ratification only if it has complied with the constitutional procedures governing the formulation o f proposals for change. Congress can submit proposals for ratification only if two-thirds o f the Members of both Houses find them necessary. As we have suggested in the preceding discussion, the meaning o f the Convention Clause is simple and clear. A constitutional convention con­ venes, if at all, to make proposals responsive to a substantive consensus among the legislatures o f the States. The consensus may be general or nar­ row. It may call for a general reexamination o f the C onstitution, or it may be a relatively specific agreement among the legislatures about the desirability o f a particular change. In any case, the function o f the twothirds requirement in the application process is to ensure that no conven­ tion will be convened and no proposal made unless there is an agreement among an extraordinary m ajority o f the governments o f the States that would justify a responsive proposal and the ratification effort. As Hamilton put it, it takes two-thirds to set the measure on foot. That being so, it is unim portant that the delegates to a constitutional convention may have a moral or legal duty to respect the tenor o f the application and call that brought them there. They may well have such a duty or duties, but the im portant point is that they have, in our view, no power to issue ratifiable proposals except to the extent that they honor their commission. They have no more power to go beyond the consensus that summoned them to convention than does Congress to propose amendments that are not responsive to a consensus am ong two-thirds o f its Members. We have one final word. Congress has been given power to specify a mode o f ratification for constitutional proposals that have developed in accordance with Article V. It has no power to provide for the ratification o f any constitutional proposal except those that have, been formulated in accordance with Article V. Congress could not, for example, provide for the ratification o f a constitutional proposal submitted for ratification by a bare majority o f its Members. Likewise, it could not provide for the ratification o f a proposal emitted by a constitutional convention for which less than two-thirds o f the States have applied. John M . H armon Assistant A ttorney General Office o f Legal Counsel 410 A PPEN D IX I Proceedings o f the Convention o f 1787 When the delegates met in Philadelphia, their discussion first centered on a plan o f the union submitted by Edm und Randolph on behalf o f the Virginia delegation. The 13th resolution o f that plan dealt with the ques­ tion o f amendment: . Resd. that provision ought to be made for the am endm ent o f the Articles o f Union whensoever it shall seem necessary, and that the assent o f the National Legislature ought not to be required th ereto .1 This resolution, in a slightly modified form (“ that provision ought to be made for [hereafter] amending the system now to be established, without requiring the assent o f the National Legislature),2 was first debated on June 5. Although Pinckney “ doubted the propriety or necessity o f it,” 3 Elbridge Gerry favored the provision: The novelty & difficulty o f the experiment requires periodical revision. The prospect o f such a revision would also give inter­ mediate stability to the Govt. Nothing had yet happened in the States where this provision existed to proves [sic] its im propriety.4 The convention then postponed further deliberation on the provision.5 The provision “ for amending the national Constitution hereafter without consent o f National Legislature” was next discussed on June l l . 6 Several members “ did not see the necessity o f the [resolution] at all, nor the propriety o f making the consent o f the National Legislature unneces­ sary.” 7 George M ason, however, urged that the provision was necessary: The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Am endm ents there­ fore will be necessary, and it will be better to provide for them , in an easy, regular and Constitutional way than to trust to chance and violence. It would be improper to require the consent o f the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account. The opportunity for such an abuse may be the fault o f the C onstitution calling for am endm ent.8 11 Farrand at 22. M Farrand at 121. ‘Id. M Farrand at 122. ’Id . ‘ 1 Farrand at 202. ‘Id. *1 Farrand at 202-03. 411 Edm und Randolph supported M ason’s arguments. The convention, how­ ever, postponed action on the words “ without requiring the consent o f the national Legislature.” The other portion o f the clause (“ provision ought to be made for the am endm ent o f the Articles o f Union whensoever it shall seem necessary” ) was passed without dissent.9 The provision as passed was then referred, to the Committee o f Detail. T hat committee fashioned the first draft o f the C onstitution and sub­ mitted it to the convention on August 6. Article XIX o f that draft provid­ ed for am endm ent as follows: On the application o f the Legislatures o f two thirds o f the States in the Union, for an am endm ent o f this C onstitution, the Legislature o f the United States shall call a Convention for that p urpose.10 This provision was considered on August 30. Gouverneur Morris sug­ gested that “ the Legislature should be left at liberty to call a Convention, whenever they please.” " Notwithstanding this suggestion, the provision was agreed to without dissent. On September 10 Gerry moved to reconsider Article XIX. Since the C onstitution was “ to be param ount to the State C onstitution,” he feared that “ two thirds o f the States may obtain a C onvention, a majority o f which can bind the Union to innovations that may subvert the State C on­ stitutions altogether.” 12 Alexander Hamilton seconded G erry’s motion. He did not object to the consequences feared by Gerry, for “ there was no greater evil in subjecting the people o f the U.S. to the m ajor voice than the people o f a particular S tate.” 13 Rather, Hamilton argued: It had been wished by many and was much to have been desired that an easier mode for introducing am endments had been pro­ vided by the Articles o f C onfederation. It was equally desirable now that an easy mode should be established for supplying defects which will probably appear in the new System. The mode proposed was not adequate. The State Legislatures.will not apply for alterations but with a view to increase their own powers—The National Legislature will be the first to perceive and will be most sensible to the necessity o f am endm ents, and ought also to be empowered, whenever two thirds o f each branch should concur to call a Convention—There could be no danger in giving this power, as the people would finally decide in the case.14 *1 Farrand at 203. I02 Farrand at 188. "2 Farrand at 468. "2 Farrand at 557-58. 112 Farrand at 558. ‘•Id. 412 Madison “ remarked on the vagueness o f the terms, ‘call a Convention for the purpose,’ as sufficient reason for reconsidering the article.” 15 Specifically, Madison raised the questions, “ How was a Convention to be formed? by what rule decide? what the force o f its acts?” 16 A fter this debate, Gerry’s m otion to reconsider carried.17 Roger Sherman then moved that the following language be inserted into the Article: “ or the Legislature may propose amendments to the several States for their approbation, but no amendments shall be binding until consented to by the several States.” 18 James Wilson moved that the ap­ proval o f only two-thirds o f the States should be necessary, but this m o­ tion was defeated.19 Wilson then moved to require the approval o f threefourths o f the States, and this m otion was approved with dissent.20 Madison then moved, and Hamilton seconded, that the convention postpone consideration o f the amended proposition and that it take up the following: The Legislature o f the U — S— whenever two thirds o f both Houses shall deem necessary, or on the application o f two thirds o f the Legislatures o f the several States, shall propose amendments to this Constitution, which shall be valid to all intents and pur­ poses as part thereof, when the same shall have been ratified by three fourths at least o f the Legislatures o f the several States, or by Conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the Legislature o f the U .S.21 Rutledge objected, on the ground that “ he could never agree to give a power by which the articles relating to slaves might be altered by the States not interested in that property and prejudiced against it.” 22 In order to ob­ viate his objection, it was agreed to add to M adison’s proposition the pro­ viso “ that no amendm ents which may be made prior to the year 1808 shall in any manner affect the 4 and 5 sections o f the VII article.” 23 As amended, M adison’s proposition was adopted.24 The Committee o f Style made minor changes in M adison’s amended proposition and reported it as Article V to the convention.25 On Septem­ ber 15, Sherman initiated debate on this provision by expressing his fears that three fourths o f the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them "Id. '‘id. "id. "Id. "2 Farrand at 558-59. ” 2 Farrand at 559. “Id. "Id. "Id. "Id. "2 Farrand at 602. 413 of their equality in the Senate. He thought it reasonable that the proviso in favor of the States importing slaves should be ex­ tended so as to provide that no State should be affected in its in­ ternal police, or deprived of its equality in the Senate.26 George Mason also objected to the provision, for he thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second, ul­ timately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.27 Morris and Gerry then moved to amend the provision “ so as to require a Convention on application of two-thirds of the states.” 21 Madison responded that he did not see why Congress would not be as much bound to pro­ pose amendments applied for by two thirds of the States as to call a Convention on the like application. He saw no objection however against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum &c. which in Constitutional regulations ought to be as much as possible avoided.29 The Convention thereupon agreed to Morris’ and Gerry’s proposal.30 Sherman then moved to strike the requirement of three-fourths for ratification, in order to leave “ future Conventions to act in this matter, like the present Conventions according to circumstances.” 31 This motion failed, as did Gerry’s motion to eliminate ratification by convention.32 Sherman then moved to add a further proviso “ that no State shall withoutits consent be affected in its internal police, or deprived of its equal suf­ frage in this Senate.” 33 Madison objected, on the ground that incorpora­ tion of “ special provisos” would lead every State to “ insist on them, for their boundaries, exports, etc.” 34 The motion was defeated; so too was Sherman’s next motion to strike out Article V altogether.35 Morris then moved to add the single proviso “ that no State, without its consent shall be deprived of its equal suffrage in the Senate.” According to Madison, this motion was “ dictated by the circulating murmurs of the small States” and was thus agreed to .36 This completed deliberations on Article V. "2 Farrand at 629. 17Id. "Id . ” 2 Farrand at 629-30. !02 Farrand at 630. "Id . "Id . s,Id. 14I d . ” 2 Farrand at 630-31. 3,2 Farrand at 631. 414 A PPEN D IX n Congressional Handling of Convention Applications The States have filed more than 350 applications for conventions.1 These applications have been on a wide variety of subjects; and as we have suggested, most authorities are of the view that applications on different subjects should not be aggregated for the purpose of determining whether a sufficient number of States has applied for a convention.2 Congress has traditionally been of that view, for it has never, despite the large number of applications, called a convention. On two occasions the Senate has approved legislation to establish con­ vention machinery. In 1971 and 1973 the Senate passed identical bills writ­ ten by Senator Ervin that were premised on the proposition that a conven­ tion might be called to consider a particular subject. The bills provided that any call to convention would “ set forth the nature of the amendment or amendments for the consideration of which the convention is called.” To enforce this restriction, they provided that each convention delegate would take an oath committing himself not to propose or vote for any pro­ posed amendment not relating to the subject described in the call. The bills also allowed Congress to disapprove the submission of any proposed amendment to the States if Congress found that the proposal related to or included a subject that differed from the one specified by Congress.3 These provisions were founded on the conclusion of the Senate Judiciary Committee that “ the bill properly limits the scope of the convention to the subject or subjects” that caused the States to seek constitutional amend­ ment in the first instance.4 1125 C o n g r e s s i o n a l R eco rd (daily ed., January 15, 1979) (remarks o f Senator Helms). ‘See, e.g., Bonfield, “ The Dirksen A m endm ent and the Article V Convention Process,” 66 Mich. L. Rev. 949, 970 and n. 85 (1968). The opposite view is advanced by a few com m en­ tators who reason that even disparate dem ands show a widespread desire for constitutional changes. See, e.g., Orfield, Amending the Federal Constitution, 42 (1942). It is generally agreed, however, that applications on different subjects cannot be taken as an indication of general dissatisfaction with the entire C onstitution. See, e.g., N ote, 70 Harv. L. Rev. 1067, 1072 (1957). !S. 215, 92d Cong., 1st sess. §§ 6(a), 8(a), 11(b)(1), 117 C o n g r e s s i o n a l R e c o r d 36805 (1971); S. 1272, 93d Cong., 1st sess., 119 C o n g r e s s i o n a l R e c o r d 22731-37 (1973). 4S. Rept. 336, 92d Cong., 1st sess. 10(1971). 415 A P P E N D IX ID The Early Applications of the States The States made few applications for conventions during the first 100 years after the Constitution was ratified. A majority of these early ap­ plications were for general conventions.1 It has been argued that the States must therefore have thought themselves empowered to ask for general conventions only, and that this in itself is evidence that an Article V con­ vention may not be called for a limited purpose.2 We do not accept this view. The earliest applications were made by Virginia in 1788 and by New York in 1789. The Virginia application referred to the numerous objec­ tions that had been made to the new Constitution: We do, therefore, in behalf of our constituents, in the most earnest and solemn manner, make this application to Congress, that a convention be immediately called, of deputies from the several States, with fu ll pow er to take into their consideration the defects o f this constitution that have been suggested by the State Conventions, and report such amendments thereto as they shall find best suited to promote our common interests, and secure to ourselves and our latest posterity the great and unalienable rights of mankind.3 [Emphasis added.] The New York application voiced a similar sentiment: The People of the State of New York having ratified the Con­ stitution agreed to on the seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty-seven, by the Convention then assembled at Philadelphia, in the State of Pennsylvania, as explained by the said ratification, in the fullest confidence of obtaining a revision of the said Constitution by a General Convention; and in confidence that certain powers in and by the said Constitution granted, would not be exercised, until a Convention should have been called and convened for proposing amendments to the said Constitution: In compliance, therefore, with the unanimous sense o f the Convention of this State, who all united in opinion that such a revision was necessary to recommend the said Constitution to the approba­ tion and support of a numerous body of their constituents; 'Brickfield, “ Problem s Relating to a Federal Constitutional C onvention,” 85-88, House o f Representatives Judiciary Com m ittee Print, 85th C ong., 1st sess. (1957). See also American Bar Association, Amendm ent o f the Constitution by the Convention Method Under Article V, 59-72 (1974). ’Black, “ Amending the Constitution: A Letter to a Congressm an,” 82 Yale L .J. 189, 201-03 (1972). *1 A n n a l s o f C o n g r e s s 248-49 (Gales & Seaton, eds. 1789). 416 and a majority of the members of which conceived several ar­ ticles of the Constitution so exceptionable, that nothing but such confidence, and an invincible reluctance to separate from our sister States, could have prevailed upon a sufficient number to assent to it, without stipulating for previous amendments: And from a conviction that the apprehensions and discontents which those articles occasion, cannot be removed or allayed, unless an act to revise the said Constitution be among the first that shall be passed by the new Congress; we, the Legislature of the State of New York, do, in behalf of our constituents, in the most earnest and solemn manner, make this application to the Congress, that a Convention of Deputies from the several States be called as early as possible, with fu ll powers to take the said Constitution into their consideration, and to propose such amendments thereto, as they shall fin d best calculated to prom ote our com ­ mon interests, and secure to ourselves and our latest posterity, the great and unalienable rights o f m a n k i n d [Emphasis added.] Because both Virginia and New York expressed a general concern over the adequacy of the Constitution, it is not surprising that they applied for a general convention. These applications do not support the contention that the applicants believed that they could ask for a general convention only. Indeed, the inclusion in these applications of language specifying that the requested convention should have “ full” or “ general” powers suggests rather clearly that the powers of an Article V convention were not thought to be invariably general but were thought to be dependent on the terms of the applications of the States. It is unnecessary to request that a conven­ tion have full or general powers if full or general powers are the only kind of powers that a convention can have. Applications for conventions were made at two other points during the first 100 years. During the nullification controversy three States filed ap­ plications. South Carolina resolved that “ it be expedient that a convention of the States be called as early as practicable to consider and determine such questions of disputed power as have arisen between the States of this confederacy and the General Government.” 5 Alabama “ recommended” to Congress “ the call of a Federal Convention to propose such amend­ ments to the constitution as may be proper to restrain Congress from exerting the taxing power for the substantive protection of domestic manufactures.” 6 Georgia applied to Congress to call a convention, to the end, among others, “ that the principle informed in a Tariff for the direct protection of domestic industry may be settled” and “ a system of Federal ‘H o use Journal ’Sen a te J o u rn al 29-30 (1789); 1 A n n a l s o f C o n g r e s s 271 (1789). 83, 22d C o n g ., 2d se ss. (1833). ‘Id. at 194-95. 417 taxation may be established, which shall be equal in its operation upon the whole people * * * .” 7 In our view, these resolutions make no applica­ tion for a convention with unlimited powers; rather, they request a con­ vention for the purpose of addressing problems broadly identified in the applications themselves. Some States applied for conventions during the period just preceding the Civil War. President Buchanan had recommended that the Congress or the State legislatures might originate “ an explanatory amendment of the Constitution on the subject of slavery.’” President Lincoln, while refraining from any “ recommendation of amendments,” had opined that “ the convention mode seems preferable, in that it allows amendments to originate with the people themselves.” 9 In accordance with that sentiment, several States—New Jersey, Indiana, Kentucky, Illinois, and Ohio—adopted resolutions applying to Congress for a convention. These resolutions were general in nature. Typically, they called for a “ conven­ tion for proposing amendments.” 10 One can argue that they indicate that the applicants believed their only recourse under Article V was to apply for a general convention, but one can argue with equal force that the form of these applications was dictated by the desire for a convention with unlimited power to avert the impending crisis. 'T he Georgia application actually presented to the Senate contained an enum eration of “ particulars” more extensive than those cited in the text. Senate Journal 65-66, 22d Cong., 2d sess. (1833). However, the one authority known to us to have studied this m atter exten­ sively states that the Georgia H ouse resolution, containing this larger enum eration, had been substantially narrowed by the Georgia Senate to the form quoted in the text, but the G ov­ ernor’s Office mistakenly transm itted the House resolution to the Congress. See Pullen, supra (note 2) at 42-44. •55 C o n g r e s s i o n a l G l o b e , 36th C ong., 2d sess., app. 4 (1860). ’4 Collected Works o f Abraham Lincoln, 269-70 (Basler ed. 1953). '"See the resolutions cited in Pullen, supra (note 2), at 79-85. 418

Write a legal research memo on the following topic.

Scope of Exemption Under Federal Lottery Statutes for Lotteries Conducted by a State Acting Under the Authority of State Law The federal lottery statute exemption for lotteries “conducted by a State” requires that the state exercise actual control over all significant business decisions made by the lottery enterprise and retain all but a de minimis share of the equity interest in the profits and losses of the business, as well as the rights to the trademarks and other unique intellectual property or essential assets of the state’s lottery. It is permissible under the exemption for a state to contract with private firms to provide goods and services necessary to enable the state to conduct its lottery, including management services, as discussed in the opinion. October 16, 2008 MEMORANDUM OPINION FOR THE ACTING ASSISTANT ATTORNEY GENERAL CRIMINAL DIVISION Federal law generally prohibits the promotion and advertisement of lotteries in interstate commerce, 18 U.S.C. §§ 1301–1304, 1953(a), but exempts from these prohibitions, among other things, lotteries “conducted by [a] State acting under the authority of State law.” Id. §§ 1307(a)(1), 1307(b)(1), 1953(b)(4). We understand that a number of states have proposed to enter into contracts with private management companies for the long-term operation of their lotteries, pursuant to state legislation. Under the terms of these proposed arrangements, the private management company would operate the lottery business under standards established by the state, would make a fixed upfront or annual payment to the state representing a projection of profits from the lottery business, and would have some significant economic interest in the additional profits of the enterprise and would bear some significant portion of the risk of losses. The Criminal Division has asked us for guidance in determining whether a lottery operating under such a long-term private management arrangement would qualify as a lottery “conducted by a State acting under the authority of State law” within the meaning of the federal lottery statutes. We conclude that the statutory exemption for lotteries “conducted by a State” requires that the state exercise actual control over all significant business decisions made by the lottery enterprise and retain all but a de minimis share of the equity interest in the profits and losses of the business, as well as the rights to the trademarks and other unique intellectual property or essential assets of the state’s lottery. It is permissible under the exemption for a state to contract with private firms to provide goods and services necessary to enable the state to conduct its lottery, including management services, as discussed herein. 129 Opinions of the Office of Legal Counsel in Volume 32 I. State-chartered lotteries were prevalent during the colonial period and the early years of the Republic. In the nineteenth century, public sentiment shifted against gambling, and by the end of the century most states had banned lotteries of any sort, public or private. The State of Louisiana, however, continued to permit the Louisiana Lottery Company, a powerful private concern, to operate under a monopoly from the State. Largely unregulated by Louisiana, the Louisiana Lottery Company made significant profits by promoting and selling tickets to the citizens of other states where lotteries were illegal. See generally National Institute of Law Enforcement and Criminal Justice, Law Enforcement Assistance Administration, Department of Justice, The Development of the Law of Gambling 1776–1976 (1977) (“DOJ Gambling Report”); G. Robert Blakey & Harold A. Kurland, The Development of the Federal Law of Gambling, 63 Cornell L. Rev. 923, 927–38 (1978). To stop this circumvention of other states’ laws and to address the perceived evils of the Louisiana Lottery Company, including the corruption of government officials and other problems associated with the commercialization of gambling, Congress in the 1890s made it a crime to sell or advertise lotteries through the mail or through interstate commerce. See Act of Sept. 19, 1890, ch. 908, § 1, 26 Stat. 465 (codified as amended at 18 U.S.C. § 1302) (prohibiting the use of the mails for lottery-related purposes); Act of Mar. 2, 1895, ch. 191, § 1, 28 Stat. 963 (codified as amended at 18 U.S.C. §§ 1301) (prohibiting interstate traffic in lottery materials), 1303 (prohibiting mail carriers from participating in lottery activities). Congress subsequently extended these prohibitions to broadcast media and to a broader array of gambling activity. See Communications Act of 1934, Pub. L. No. 73-416, § 316, 48 Stat. 1064, 1088–89 (codified as amended at 18 U.S.C. § 1304) (prohibiting the broadcast of information concerning a lottery); Pub. L. No. 87218, 75 Stat. 492 (1961) (amending Travel Act) (codified at 18 U.S.C. § 1953(a)) (prohibiting interstate transport of wagering paraphernalia). These prohibitions applied regardless of whether the lottery was run by a private entity or by a state. United States v. Fabrizio, 385 U.S. 263, 269 (1966). Beginning with New Hampshire in 1963, a number of states decided to institute or reinstitute their own state-run lotteries to raise public funds. DOJ Gambling Report at 116–21; Blakey, Federal Law of Gambling, 63 Cornell L. Rev. at 950 & nn. 114–15. By the end of 1974, thirteen states were conducting their own lotteries. H.R. Rep. No. 93-1517, at 4 (1974) (Committee on the Judiciary). To accommodate the promotion of these state-run lotteries, Congress in 1975 enacted exemptions to the criminal prohibitions in 18 U.S.C. §§ 1301–1304 and 1953(a) for “lotter[ies] conducted by [a] State acting under the authority of State law.” Pub. L. No. 93-583, §§ 1, 3, 88 Stat. 1916 (the “1975 Act”) (codified as amended at 18 U.S.C. §§ 1307(a)(1), 1307(b)(1), 1953(b)(4)). An earlier version of the bill would have “permit[ted] the advertisement of any legal lottery, whether it is 130 Scope of Exemption Under Federal Lottery Statutes for State-Conducted Lotteries conducted by the State or not,” but at the urging of the Department of Justice, it was rejected in committee in favor of the more restrictive limitation quoted above. 1 In 1988, Congress added an exemption to section 1307 for lotteries that are “authorized or not otherwise prohibited by the State in which [they are] conducted,” if those lotteries are “conducted by a not-for-profit organization or a governmental organization” or “conducted as a promotional activity by a commercial organization and [are] clearly occasional and ancillary to the primary business of that organization.” Pub. L. No. 100-625, § 2(a), 102 Stat. 3205 (codified at 18 U.S.C. § 1307(a)(2)). Again, Congress gave serious consideration to legislation that would have “remove[d] federal restrictions on the advertising of legitimate lotteries and gambling activities in interstate commerce, whether conducted by public, private, or charitable interests,” but declined to adopt such a broad exemption. 2 Today, forty states, as well as the District of Columbia, operate government-run lotteries. 3 Although lotteries conducted by for-profit companies remain subject to 1 State Conducted Lotteries: Hearing on H.R. 6668 and Companion Bills Before the Subcomm. on Claims and Governmental Relations of the H. Comm. on the Judiciary, 93d Cong. 3 (1974); see also H.R. Rep. No. 93-1517, at 8 (1974) (Committee on the Judiciary) (“When the subcommittee took favorable action on bill 6668 and reported it to the full committee it recommended a series of amendments which would have extended the exceptions in the bill to lotteries ‘. . . authorized and licensed in accordance with State law.’ These amendments were rejected by the full committee, and are the amendments referred to in the statement of additional views appended to this report. The Justice Department opposed this series of amendments and, as has been noted, they were not accepted by the full committee and were not reported to the House.”). 2 H.R. Rep. No. 100-557, at 3 (1988); see also id. at 9 (noting that the bill “would [have] permit[ted] the advertising of ‘state-authorized’ lotteries, and not merely ‘state-conducted’ lotteries”) (quoting testimony of Douglas W. Kmiec, Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice); 131 Cong. Rec. 25,508 (1985) (statement of Rep. Frank) (introducing earlier version of bill that would have exempted any lottery “authorized and regulated by the State in which it is conducted”). 3 See Ariz. Rev. Stat. Ann. §§ 5-501 to 5-525 (2002 & Supp. 2007); Cal. Gov’t Code § 8880 (2005 & West Supp. 2008); Colo. Rev. Stat. §§ 24-35-201 to 24-35-222 (2006); Conn. Gen. Stat. §§ 12-800 to 12-834 (2000 & West Supp. 2008); Del. Code Ann. tit. XXIX, §§ 4801–4824 (2003 & Supp. 2006); D.C. Code §§ 3-1301 to 3-1337 (2007 & Supp. 2008); Fla. Stat. Ann. §§ 24.101–24.124 (2003 & West Supp. 2008); Ga. Code Ann. §§ 50-27-1 to 50-27-55 (2006); Idaho Code §§ 67-7401 to 67-7452 (2006 & Supp. 2008); 20 Ill Comp. Stat. Ann. §§ 1605/1–1605/27 (West 2008); Ind. Code Ann. §§ 4-30-1-1 to 4-30-19-4.2 (1996 & Lexis/Nexis Supp. 2008); Iowa Code § 99G (2004 & West 2008); Kan. Stat. Ann. §§ 74-8701 to 74-8721 (1992); Ky. Rev. Stat. Ann. §§ 154A.010–154A.990 (2006 & West 2007); La. Rev. Stat. Ann. §§ 47:9000–47:9081 (Supp. 2008); Me. Rev. Stat. Ann. tit. VIII, §§ 371–389 (1997 & Supp. 2007); Md. Code Ann., State Gov’t §§ 9-101 to 9-125 (2004 & Lexis/Nexis Supp. 2007); Mass. Ann. Laws. ch. 10, §§ 22-35, 36-40, 56-58 (2000 & Lexis/Nexis Supp. 2008); Mich. Comp. Laws Ann. §§ 432.1–432.47 (2001 & West Supp. 2008); Minn. Stat. Ann. §§ 349A.01–349A.16 (2004 & West Supp. 2008); Mo. Rev. Stat. §§ 313.200–313.353 (2001 & West Supp. 2008); Mont. Code Ann. §§ 23-7-103 to 23-7-412 (2007); Neb. Rev. Stat. Ann. §§ 9-801 to 9-841 (2003 & Lexis/Nexis Supp. 2007); N.H. Rev. Stat. Ann. §§ 284-21-a to 284-21-v (Lexis/Nexis Supp. 2007); N.J. Stat. Ann. §§ 5-9-1 to 5-9-25 (1996 & West Supp. 2008); N.M. Stat. Ann. §§ 6-24-1 to 6-24-34 (2008); N.Y. Tax Law §§ 1600–1620 (2004 & McKinney Supp. 2008); N.C. Gen. Stat. §§ 18C-101 to 18C-172 (2007); N.D. Cent. Code §§ 53-12.1-03 to 53-12.1-10 (2007 & Supp. 2007); Ohio. Rev. Code Ann. 131 Opinions of the Office of Legal Counsel in Volume 32 the criminal prohibitions in 18 U.S.C. §§ 1301–1304 and 1953(a), some states are considering legislation that would authorize long-term agreements with private management companies to operate lotteries for the states, subject to prescribed standards, in return for a significant share of the profits of the lottery enterprise. The Criminal Division has sought our views on whether lotteries operated under such arrangements would fall within the scope of the federal exemption for lotteries “conducted by a State acting under the authority of State law.” The arrangements proposed by the states, as we understand them, would be authorized by state legislation, and the question comes down to whether lotteries so operated would be “conducted by” the states. 4 II. For the reasons set forth herein, we believe that the statutory exemption for lotteries “conducted by a State” requires that the state manage and direct the course of the lottery venture—by exercising actual control over all significant business decisions made by the enterprise—and that the state retain all but a de minimis share of the equity interest in the profits and losses of the business, as well as the rights to the trademarks and other unique intellectual property and assets essential to the state’s lottery. As we discuss more fully below, preserving the state’s ownership interests in the lottery business will help to ensure that the lottery will be operated by the state and solely for the public benefit of the state, which we believe the federal lottery statutes require. In our view, these requirements flow from the text and structure of the statutes, from their legislative history, and from relevant court decisions. In interpreting the scope of the exemption for lotteries “conducted by a State,” we find that principles of agency and partnership law are instructive by analogy. §§ 3770.01–3770.99 (2005 & Lexis/Nexis Supp. 2008); Okla. Stat. Ann. tit. 3A, §§ 701–735 (West Supp. 2008); Or. Rev. Stat. §§ 461.010 to 461.740 (2007); 72 Pa. Cons. Stat. §§ 3761-101 to 3761-314 (1995 & West 2008); R.I. Gen. Laws §§ 42-61-1 to 42-61-17 (2006); S.C. Code Ann. §§ 59-150-10 to 59-150-410 (2004 & Supp. 2007); S.D. Codified Laws §§ 42-7A-1 to 42-7A-65 (2004 & Supp. 2008); Tenn. Code Ann. §§ 4-51-101 to 4-51-206 (2005 & Supp. 2007); Tex. Gov’t Code Ann. §§ 466.001 to 466.453 (2004 & Vernon Supp. 2008); Vt. Stat. Ann. tit. XXXI, §§ 651–678 (2000 & Supp. 2007); Va. Stat. Ann. §§ 58.1-4000 to 58.1-4027 (2004 & Supp. 2007); Wash. Rev. Code Ann. §§ 67.70.010 to 67.70.905 (2001 & Lexis/Nexis 2008); W. Va. Code §§ 29-22-1 to 29-22-28 (2004 & Lexis/Nexis Supp. 2008); Wis. Stat. Ann. §§ 565.01 to 565.50 (West 2006). 4 Such a lottery would not appear to qualify under any other exemption to the federal lottery statutes. The private management company contemplated in the various state proposals would not be a “not-for-profit organization” for purposes of the exemption enumerated in 18 U.S.C. § 1307(a)(2)(A); nor would the lottery be managed “as a promotional activity” that “is clearly occasional and ancillary to the primary business of that organization,” id. § 1307(a)(2)(B). Similarly, even if the private management company were to maintain a close working relationship with the state government, it would be highly unlikely to qualify as a “governmental organization” under section 1307(a)(2)(A). None of the remaining exemptions in sections 1307 and 1953(b) would have any conceivable application to a state-sponsored lottery. See 18 U.S.C. §§ 1307(b)(2), 1953(b)(1), (b)(3), (b)(5). 132 Scope of Exemption Under Federal Lottery Statutes for State-Conducted Lotteries A. The verb “conduct” means “[t]o manage; direct; lead; have direction; carry on; regulate; do business.” Black’s Law Dictionary 295 (6th ed. 1990). See Webster’s Third New International Dictionary 474 (1993) (defining verb “conduct” to mean “lead,” “direct,” “control,” or “manage”); 2 Oxford English Dictionary 791 (1978) (similar). In the context of the federal lottery statutes, we believe the phrase “conducted by the State” contemplates that the state will “manage” the business, “direct” the affairs of the business, “carry on” its operations, and “do business” as a state-run enterprise, for the benefit of the state. Although “regulate” is suggested in the dictionaries as one synonym for “conduct,” merely regulating the lottery, or licensing a private lottery concession pursuant to detailed standards prescribed by the state, plainly cannot be sufficient to satisfy the requirements of the statutory exemption. That the exemption requires more than state regulation or licensing is confirmed by 18 U.S.C. § 1307 as a whole. The exemption for lotteries “conducted by a State” in section 1307(a)(1) is followed immediately in section 1307(a)(2) by the exemption for a lottery “authorized or not otherwise prohibited by the State in which it is conducted” and “conducted by” a “not-for-profit organization,” a “governmental organization,” or “as a promotional activity by a commercial organization” that is clearly occasional and ancillary to the business of the organization. Were the phrase “conducted by a State” construed to include lotteries authorized, licensed, or regulated by the state (for example, pursuant to state law and subject to state-imposed standards), the exemption in section 1307(a)(1) would swallow those separately enumerated in section 1307(a)(2), a result that is strongly disfavored as a matter of statutory interpretation. See Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 837 & n.11 (1988) (“[W]e are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.”). Furthermore, the parallel use of the phrase “conducted by” in section 1307(a)(2)’s exemptions for certain lotteries run by not-for-profit organizations and as occasional promotional activities by commercial organizations strongly suggest that “conducted by” cannot mean “regulated by,” because not-for-profit organizations and commercial entities do not, in any conventional sense of the word, “regulate.” The only federal decision to address the meaning of the statutory exemption for lotteries “conducted by a State” is consistent with this reading. In United States v. Norberto, 373 F. Supp. 2d 150 (E.D.N.Y. 2005), the court considered whether the exemption in section 1307(b)(2) for lotteries “authorized by the law[s] of [a] foreign country” requires that the foreign country affirmatively approve the conduct in question. See id. at 156. The defendants objected to such a reading on the ground that it would essentially read into that exemption a requirement (paralleling section 1307(a)(1)) that the lottery be “conducted by” the foreign government. The court rejected this contention, on the ground that a state’s 133 Opinions of the Office of Legal Counsel in Volume 32 affirmative authorization of an activity was not equivalent to its conducting that activity. To make this point, the court contrasted “the State of New York which has a state run lottery” with “the United Kingdom[, which] authorizes a private company known as ‘Camelot’ to be the government sanctioned operator of its National Lottery.” Id. at 156–57. Consistent with our conclusion here, the court indicated that the British arrangement—which the court understood to involve the use of a government-licensed and regulated management company to operate the lottery—would not qualify as a lottery conducted by a state. Id. 5 The Rhode Island Supreme Court reached a similar conclusion in two advisory opinions addressing whether state lottery proposals were consistent with the Rhode Island Constitution’s prohibition on gaming except where “operated by the state.” R.I. Const. art. 6, § 15. The statutory proposals would have permitted a private gaming company and an Indian tribe to run a casino subject to close regulatory supervision by the state, and the court was asked to determine whether the proposed arrangements left the state with sufficient control to satisfy the requirements of the constitutional provision. Interpreting the word “operate” as we interpret “conduct” here (as entailing active control over the enterprise), the court held that the state must possess “the power to make decisions about all aspects of the functioning of [the] business enterprise.” In re Advisory Opinion to House of Representatives, 885 A.2d 698, 706 (R.I. 2005) (“Casino II”) (emphasis in original) (quoting In re Advisory Opinion to Governor, 856 A.2d 320, 331 (R.I. 2004) (“Casino I”)). Thus, even though the state gaming commission would have had regulatory control over the casino under the proposal, and under one proposal would have had veto authority over certain decisions, the court found it disqualifying that “Harrah’s would make day-to-day decisions having to do with the functioning of the proposed casino while the Lottery Commission merely would enforce the applicable regulations.” Casino I, 856 A.2d at 331–32; see also Casino II, 885 A.2d at 707 (“Mere regulatory power over the most fundamental aspects of the gaming business—selection of the casino service provider—certainly falls short of ‘operating’ ‘all aspects’ of the facility.”). This interpretation of “operate”—as necessarily including “the power to make decisions about all aspects of the functioning of [the] business enterprise”—is consistent with our interpretation of the verb “conduct” in sections 1307 and 1953(b). The court concluded that the state had to have “actual control,” which meant that it could not cede the power to “make day-to-day decisions having to do with the functioning of” the lottery. In addition, while ultimately concluding that the statutory proposal did not leave the state with sufficient authority to “operate” the lottery, the Rhode Island Supreme Court drew favorable attention to features of 5 It is significant to note that while the British government regulates the activities of Camelot, the private company retains a substantial portion of the profits of the enterprise and is authorized to make business decisions for the lottery without the approval of the British government. See http://www. natlotcomm.gov.uk/UploadDocs/Contents/Documents/Final%20ITA-Full.pdf (last visited Aug. 5, 2008). 134 Scope of Exemption Under Federal Lottery Statutes for State-Conducted Lotteries the proposal that “appear[ed] to vest operational control in the state.” Casino II, 885 A.2d at 708. These features included the right of the state “to direct daily revenue,” id. at 709; the responsibility of the gaming company to comply with detailed accounting procedures, id. at 709 & n.11; the right of the state to monitor all “gaming devices,” id. at 710; the right of the state to set the number of video lottery terminals and non-slot table games to be played at the casino, id.; the right of the state to set the odds of winning, id.; and “all other powers necessary and proper to fully and effectively execute and administer the provisions of this chapter for its purpose of allowing the state to operate a casino gaming facility,” id. at 711. Similarly here, a state’s authority over these aspects of lottery operations would be important in establishing that it is “conducting” the lottery and therefore that the lottery is eligible for section 1307(a)(1)’s statutory exemption. There is a question whether the statutory exemption would allow for an arrangement in which the state’s lottery is conducted jointly by the state and by a private for-profit management company—in effect, through a partnership or joint venture between the state and the private company. It might be suggested that even if the private company participates in the conduct of the business, by exercising significant control over some business decisions and participating significantly in the profits and risks of the venture, the lottery could still be “conducted by the State” as long as the state participates in the joint conduct of the lottery. We do not believe, however, that that is the better reading of the statutes. The overall structure of the statutory scheme strongly suggests that to qualify for the exemption the lottery must be conducted by the state and only by the state, not jointly by the state and a private for-profit entity. Section 1307(a) sets forth several parallel exemptions for lotteries that are “conducted by a State,” “conducted by a not-for-profit organization or a governmental organization,” or “conducted as a promotional activity by a commercial organization” where the lottery is clearly only occasional and ancillary to the business of the commercial organization. 18 U.S.C. §§ 1307(a)(1), 1307(a)(2). These various options are stated disjunctively in the statute; the statute does not appear to allow for an option whereby a lottery might be conducted jointly by more than one of these entities at the same time (though admittedly the statute does not expressly foreclose that possibility). The very narrow scope of the exemption for “clearly occasional and ancillary” “promotional” lotteries conducted by “commercial organization[s]” underscores the evident objective of the federal lottery prohibitions to prevent the broader commercial promotion of lotteries that serve the profit-making interests of private companies, as opposed to the public interests of state and local governments and charitable organizations. This conclusion is strongly reinforced by the legislative history of the lottery statutes. Although enacted in phases over time, marking the evolving nature of interstate commerce, the federal lottery statutes as a whole reflect a consistent and focused policy by Congress to prohibit private for-profit concerns from engaging 135 Opinions of the Office of Legal Counsel in Volume 32 in the promotion of lotteries and thereby to prevent recurrence of the perceived evils that were associated with the Louisiana Lottery Company. As explained by lawmakers at the time, the 1975 Act that created the exemption for state-conducted lotteries sought to accommodate the states’ renewed interest in using lotteries to generate state revenue for the benefit of the public interest 6 while avoiding the risk of corruption and commercialization driven by private interests that Congress believed to be presented by privately operated lotteries, such as the Louisiana Lottery Company. 7 Indeed, the House Committee on the Judiciary considered a version of the 1975 Act, passed out of a subcommittee, that would have exempted any lottery “authorized and licensed in accordance with state law.” H.R. Rep. No. 93-1517, at 8. A Department of Justice witness testified, however, that “the Department would not favor any change in the law which would have the effect of opening up the channels of commerce to individuals who would seize upon the existence of a State authorized lottery to ‘commercialize the process,’” and the Committee subsequently amended the bill to exempt only lotteries that were 6 See S. Rep. No. 93-1404, at 8 (“It is the recommendation of the Committee that the Federal Government should not allow its laws to impede or prevent the lawfully authorized efforts of States to raise revenues and benefit its own citizens”); 120 Cong. Rec. 22,145 (1974) (statement of Sen. Kennedy) (“State lotteries . . . are not operating for private gain, but to supplement revenue in order to support essential public services.”); 120 Cong. Rec. 12,599 (1974) (statement of Rep. Rodino) (“I would like to point out that the revenue being derived from State authorized lotteries is being used for the purposes of education in many States. In some States it is being used to fund programs designed to serve the interests of the elderly.”); id. at 12,600 (statement of Rep. Cohen) (“Since there is no overriding Federal interest in prohibiting State controlled lotteries, the Federal Government should not interfere with the sovereignty of the individual States or in their selection of revenue-raising measures.”); id. at 12,604 (statement of Rep. Daniels) (“The lottery . . . is a painless means of raising much needed revenue”). 7 See 120 Cong. Rec. 12,601 (1974) (statement of Rep. Sarasin) (the 1890 anti-lottery acts were “intended to correct the abuses of a privately run illegal lottery,” not to prevent “the situation which exists today, where the States use lotteries to fund such worthwhile programs as education, environmental research, programs to aid the elderly, and for maintenance of open spaces and recreation areas”). See also State Conducted Lotteries: Hearing on H.R. 6668 and Companion Bills Before the Subcomm. on Claims and Governmental Relations of the H. Comm. on the Judiciary, 93d Cong. 29–30 (1974) (statement of William S. Lynch, Chief of the Organized Crime and Racketeering Section of the Criminal Division of the Department of Justice) (“[T]oday most State-operated lotteries are conducted by means of a central computer with information key-punched into its memory banks concerning every aspect of the lottery operation. This method prevents ticket alterations and duplications, improper claims, and thefts. It further operates to hinder organized criminal groups from infiltrating or stealing from these State lotteries.”), quoted in H.R. Rep. No. 93-1517, at 5–6; 120 Cong. Rec. 22,145 (1974) (statement of Sen. Kennedy) (“None of the abuses which existed in lotteries run for private profit a century ago are present in the lotteries of these States.”); 120 Cong. Rec. 12,600 (1974) (statement of Rep. McClory) (“Policing and disclosure policies have been built into the [Illinois lottery] system with the expectation of making impossible the kind of graft or corruption which existed in 19th century lottery systems.”); id. at 12,604 (statement of Rep. Daniels) (“Thirteen States now conduct State lotteries under the full protection of State law and regulation. During the several years of experience there have been none of the scandals that had been forecast and the lotteries have brought in millions of dollars in revenue for education and other needs.”). 136 Scope of Exemption Under Federal Lottery Statutes for State-Conducted Lotteries “conducted by a State.” Id. at 5–7 (quoting testimony of Deputy Attorney General Henry E. Petersen). In 1988, Congress again considered statutory language—this time, supported by the Justice Department—that would have “remove[d] federal restrictions on the advertising of legitimate lotteries and gambling activities in interstate commerce, whether conducted by public, private, or charitable interests.” H.R. Rep. No. 100557, at 3 (1988); see also id. at 9 (noting that the bill “would [have] permit[ted] the advertising of ‘state-authorized’ lotteries, and not merely ‘state-conducted’ lotteries”) (quoting testimony of Douglas W. Kmiec, Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice); 131 Cong. Rec. 25,508 (1985) (statement of Rep. Frank) (introducing earlier version of bill that would have exempted any lottery “authorized and regulated by the State in which it is conducted”). Again, however, Congress rejected the proposal, and members expressed concerns that private for-profit companies could not be trusted to operate lotteries in a publicly beneficial manner. See, e.g., 134 Cong. Rec. 10,317– 318, 11,261, 11,376 (1988) (statements of Rep. Wolf). Congress instead passed a version of the bill that gave exemptions to lotteries that were “authorized or not otherwise prohibited by the State in which [they are] conducted,” but only if those lotteries were “conducted by a not-for-profit organization or a governmental organization” or “as a promotional activity by a commercial organization.” Pub. L. No. 100-625, § 2(a), 102 Stat 3205 (codified at 18 U.S.C. § 1307(a)(2)). We believe this history reflects a consistent legislative judgment against permitting private for-profit companies to conduct lotteries. It would appear to be inconsistent with this judgment to permit the injection of a private company’s profit-making interests into the conduct of the state lottery, because doing so would raise the risk that the lottery business would serve a private commercial motive, rather than serving solely the public interest of the state. The law of partnership offers useful guidance, by analogy, on the sorts of arrangements with a private management company that would convert a lottery business “conducted by a State” into a joint enterprise between the state and the private entity. Perhaps most significantly, partnership law would suggest that a business becomes a partnership (as distinguished from a principal-agent relationship) when a single entity does not exercise actual control over all significant business decisions. Under the Uniform Partnership Act (“UPA”), which has been widely adopted and followed, “the power of ultimate control” is an essential element that “distinguishes a partnership from a mere agency relationship.” Uniform Partnership Act § 202 cmt. 1 (1997); see also, e.g., Kidz Cloz, Inc. v. Officially For Kids, Inc., 320 F. Supp. 2d 164, 171 (S.D.N.Y. 2004) (under New York law, demonstrating “the parties’ joint control and management of the business” is necessary to prove the existence of a partnership); Harbaugh v. Greslin, 436 F. Supp. 2d 1315, 1321 (S.D. Fla. 2006) (same under Florida law). Similarly, mutual control is a hallmark of a joint venture. See, e.g., Taylor v. 137 Opinions of the Office of Legal Counsel in Volume 32 Texaco, Inc., 510 F. Supp. 2d 1255, 1262 (N.D. Ga. 2007) (under Georgia law, “The element of mutual control is a crucial element of a joint venture”); Black’s Law Dictionary 843 (7th ed. 1999) (defining “each member’s equal voice in controlling the project” as a “necessary element” of a joint venture). These concepts closely mirror, in our view, the proper meaning of “conducted by a State,” consistent with the text and legislative history and purpose of the federal lottery statutes. In our view, it is also relevant to note that the sharing of a significant interest in the profits and losses of the business is recognized as “characteristic of a partnership.” Steelman v. Hirsch, 473 F.3d 124, 130 (4th Cir. 2007); see also, e.g., Mallis v. Bankers Trust Co., 717 F.2d 683, 690 (2d Cir.1983) (under New York law, “the crucial element of a joint venture is the existence of a mutual promise or undertaking of the parties to share in the profits . . . and submit to the burden of making good the losses”) (quotation marks omitted); Thomas v. Price, 718 F. Supp. 598, 605 (S.D. Tex. 1989) (under Texas law, “Major incidents of the partnership relationship are an agreement among the participants to share profits and losses and a mutual right of control to manage the partnership”); Black’s Law Dictionary at 843 (defining “shared profits and losses” as a “necessary element” of a joint venture). The UPA creates a rebuttable presumption that a person “who receives a share of the profits of a business” is a partner in the business. Uniform Partnership Act § 202(c)(3). Importantly, however, the presumption does not attach if the profits were received “in payment . . . for services as an independent contractor or of wages or other compensation to an employee.” Id. This result supports the notion that some de minimis portion of profits or revenues may be shared among the parties without creating a partnership, because de minimis profit-sharing is consistent with a principal-agent relationship, rather than a true partnership. 8 We believe this concept is relevant in interpreting the exemption for lotteries “conducted by a State,” because the sharing of a significant interest in the profits and losses of the lottery enterprise would be expected to diminish significantly the state’s incentive to exercise actual control over the management of the business and would mean also that the lottery would not be conducted solely in the public interest of the state, as Congress has mandated, but rather at least partially in the profit-maximizing interest of the private firm. 9 8 Cf. TIFD III-E, Inc. v. United States, 459 F.3d 220, 233–35 (2d Cir. 2006) (holding that foreign banks’ investment in a partnership was properly classified as debt, not equity, for tax purposes where the banks had the contractual right to recoup their investment at an agreed upon rate of return plus an opportunity to participate in the profits of the partnership that was, as a practical matter, limited to 2.5% of the banks’ total investment—“a relatively insignificant incremental return over the projected eight-year life of the partnership”). 9 Although there may be no bright-line rule for identifying what would constitute a significant, or more than de minimis, ownership interest in the state’s lottery business, examples of rules from other statutory and regulatory contexts may be useful by analogy. See, e.g., 15 U.S.C. § 78n(d)(1) (Williams Act provision requiring any person making tender offer for class of stock of publicly traded corporation 138 Scope of Exemption Under Federal Lottery Statutes for State-Conducted Lotteries For these reasons, we believe that an arrangement by which a state engages in the business of operating a lottery jointly with a private firm that shares substantially in the profits and risks of the enterprise would not be consistent with the statutory exemption. The concerns that apparently led Congress to prohibit private companies from conducting lotteries would still apply if a private company and a state were jointly to own and operate the lottery venture. See H.R. Rep. No. 931517, at 5–6; 120 Cong. Rec. 22,145 (1974) (statement of Sen. Kennedy) (warning against the abuses of “lotteries run for private profit” and stating the view that such abuses would not be present in state-conducted lotteries). We therefore believe that the exemption for lotteries “conducted by a State” requires that the lottery be “conducted by” the state alone, and not be conducted jointly by the state and by a private for-profit corporation, whether through a formal partnership or through some other form of joint business venture. B. Our conclusion that the state must exercise actual control over all significant business decisions of the lottery and retain all but a de minimis share of the equity interest does not mean that the state in conducting the lottery enterprise may not contract with private firms to provide goods and services necessary to the lottery. States that operate their own lotteries routinely contract with private businesses to print and sell lottery tickets, promote the lottery, insure against loss, consult about games, and perform a wide range of other functions as part of operating the lottery. 10 We do not read the lottery statutes to foreclose these types of arrangements; that a state contracts with a private company to assist in certain functions to file disclosure report with SEC if, after consummation of offer, the person would own more than 5% of the class); H.R. Rep. No. 91-1655, at 3 (1970) (justifying Williams Act disclosure requirement on ground that “shareholders should be fully informed” of acquisitions of equity interests exceeding 5% because “[t]hese acquisitions may lead to important changes in the management or business of the company”); 26 C.F.R. § 1.368-2T(l)(2)(iii) & ex. 4 (2008) (IRS rule providing that “de minimis” variations in shareholder identity or proportionality of ownership are disregarded in determining whether transaction qualifies for tax treatment as “reorganization” under 26 U.S.C. § 368(a)(1)(D), and giving as example of such de minimis variation a 1% difference in stock ownership). 10 See, e.g., Dalton v. Pataki, 5 N.Y.3d 243, 271 (2005) (“The Division of the Lottery regularly contracts with outside vendors and other entities for various equipment and services to assist in the operation of the state lottery,” under state constitutional provision prohibiting lotteries unless “operated by the state”); State ex rel. Ohio Roundtable v. Taft, No. 02AP-911, ¶ 32, 2003 WL 21470307, *6 (Ohio App. June 26, 2003) (“Ohio undisputedly contracts with various vendors for the operation and promotion of the lottery, whether for existing in-state games or the new multi-state Mega Millions,” under state constitutional provision prohibiting lotteries unless “conduct[ed]” by “an agency of the state”); Mo. Rev. Stat. § 313.270 (2001) (“The director, pursuant to rules and regulations issued by the commission, may directly purchase or lease such goods or services as are necessary for effectuating the purposes of sections 313.200 to 313.350, including procurements which integrate functions such as lottery game design, supply of goods and services, and advertising.”); Minn. Stat. § 349A.07(1) (2004) (“The director may enter into lottery procurement contracts for the purchase, lease, or lease-purchase of the goods or services.”). 139 Opinions of the Office of Legal Counsel in Volume 32 associated with the lottery, even where the contractor is compensated for its services by a relatively small fixed percentage of the revenues of the lottery, does not mean that the state itself is no longer conducting the lottery. The private contractor in such circumstances—though providing valuable assistance to the state—is not “conducting” the lottery within the meaning of the statutes. The delegation of management responsibilities to a private contractor presents a more difficult question. As discussed above, the verb “conduct” itself connotes management. Thus, unlike the delegation of other activities necessary to a lottery, such as promoting the lottery or printing tickets, an overbroad delegation of management responsibility would definitely call into question whether the state, and only the state, is exercising actual control over all significant business decisions of the lottery. For instance, simply imposing operating standards, even if freely amendable, would not be enough to give the state the necessary control over all significant business decisions of the lottery. Nor would a regulatory system of legal authorization and license alone be sufficient. Accordingly, we believe that there must be significant limits on the authority the state may delegate and still qualify for the exemption under section 1307(a)(1). Principles of agency law are instructive in defining the appropriate line in judging a management services contract. To be said to “conduct” a lottery, the state must maintain and exercise control over all significant aspects of the lottery operation. To the extent that such authority is delegated to a private management company, the management company should operate more in the role of an agent of the state, see Restatement (Third) of Agency § 1.01 (2006), than a partner that shares in the authority to make significant business decisions. This conclusion is fully consistent with the opinions of the Rhode Island Supreme Court in the Casino I and Casino II cases discussed above. In particular, a state official or agency must have the authority to direct or countermand operating decisions by the management company at any time. Cf. Restatement (Third) of Agency § 8.09, cmt. c (citing id. § 1.01, cmt. f(1)) (“The power to give interim instructions is an integral part of a principal’s control over an agent and a defining element in a relationship of common-law agency.”). 11 The state need not always choose to exercise this authority if it is satisfied from its oversight that the management company is operating the lottery properly, but the existence of this authority is vital for the state to exercise actual control over the business—and to ensure that it has not shared such control with a private company. For the same reason, we believe that to “conduct” the lottery through the agency of a management company, a state must maintain ready access to information regarding all lottery operations. To this end, as a necessary corollary of its 11 Unlike a principal at common law, which can contract away the right to direct its agents’ actions, id., a state may not waive this responsibility, nor may it limit its authority to a veto power. Cf. Casino II, 885 A.2d at 706 (“[T]he power to choose is qualitatively different from the lesser power of vetoing another’s choice.”). 140 Scope of Exemption Under Federal Lottery Statutes for State-Conducted Lotteries authority over lottery operations, a state should have the right to demand and receive information from the management company concerning any aspect of the lottery operations at any time. Cf. Restatement (Third) of Agency § 8.12(3) (agent has duty “to keep and render accounts to the principal of money or other property received or paid out on the principal’s account”); La. Civ. Code art. 3003 (2005) (“At the request of the principal . . . the mandatary [agent] is bound to provide information and render an account of his performance of the mandate.”). In addition, the management company must have the affirmative duty to provide the state with any information the company reasonably believes state officials would want to know to enable the state to conduct the lottery. Cf. Restatement (Third) of Agency § 8.11 (“An agent has a duty to use reasonable effort to provide the principal with facts that the agent knows, has reason to know, or should know when (1) subject to any manifestation by the principal, the agent knows or has reason to know that the principal would wish to have the facts or the facts are material to the agent’s duties to the principal; and (2) the facts can be provided to the principal without violating a superior duty owed by the agent to another person.”). These notifications will “enable[] the [State] to update and sharpen instructions provided to the [management company]” as the lottery operation evolves. Id. cmt. d. We conclude also that a management company must give the state advance notice of any operating decision that bears significantly on the public interest, such as decisions on the kinds of games to be offered to the public and decisions affecting the relative risk and reward of the games being offered, so that the state will have a reasonable opportunity to evaluate and countermand that decision. The affirmative duties to report material information, and to inform the state in advance of significant decisions, are critical to ensuring that the state’s legal authority to direct the actions of the lottery translates into actual, practical control over the lottery’s operations. As for the ownership of assets, we do not foreclose the possibility that the state may, consistent with the limits of the exemption, permit the private management contractor to own and provide most of the assets needed for the lottery. Many such assets—computers, printing equipment, possibly the gaming equipment—are likely to be widely available for lease or purchase from other sources if the private company were to withdraw from the contract with the state. Thus, we do not think that a state’s contracting with a private management company to provide these assets for its lottery would necessarily put the lottery business under the effective control of the private contractor, so as to make the private company the state’s partner in conducting the lottery. Even some non-fungible assets—software, games, accounting systems—can be redeveloped or replaced, and therefore could also be leased by a state for use in its lottery without elevating the role of the company providing the assets to that of a partner or joint venturer in the lottery. Other assets, such as the trade name and trademarks of the state lottery, may perhaps be truly essential to the state’s ownership and control of the lottery, in the 141 Opinions of the Office of Legal Counsel in Volume 32 sense that the state could not continue “conducting” its lottery (at least not without serious disruption) unless it retained ownership of these assets after discharging the management company. Ownership of these assets could be viewed as inextricably intertwined with the conduct of the lottery. Were a state to transfer such essential assets to a private company assisting the state in the management of the lottery, the state could become so dependent upon the management company for the continued operation of the business as to call into significant question whether the state is actually conducting the lottery. As we have discussed above, we believe that the ownership by the private management company of a significant equity interest in the profits of the lottery would go beyond the scope of the exemption. We understand that some states have proposed to enter into agreements with private management firms under which the private company would assist in the management of the lottery and receive a significant share of the lottery’s profits or bear a significant share of the risk of losses. In return, it has been proposed that the management company would make a significant upfront payment to the state or make annual disbursements to the state. We believe that such an arrangement would not be consistent with the limited exemption for lotteries “conducted by a State.” If a private management company were to oversee the lottery’s operations and receive a significant share of the lottery’s profits (particularly in return for an investment of capital), we think it clear that the company would not be a mere contractor or agent, assisting the state in operating a lottery that the state conducts, but rather a co-participant in the conduct of the lottery with substantial managerial responsibilities and a significant equity stake in the lottery’s success or failure. In such circumstances, the private management company’s incentives and ability to influence the lottery would be significant. Where a state has a reduced stake in the profits or losses of a lottery, its incentive to exercise the actual control over all significant business decisions required by the exemption is necessarily diminished. Indeed, in practical respects, an arrangement in which the state cedes to a private firm a significant economic interest in the profits and losses of the business may be functionally quite similar to an arrangement whereby the state licenses a lottery concession to a private company. As described above, these incentives and characteristics are precisely what Congress sought to avoid in enacting the exemption for lotteries “conducted by a State.” See supra notes 6–7 (contemplating that state-conducted lotteries would be operated for the public benefit). 12 12 See also Colo. Const. art. XVIII, § 2(7) (“Unless otherwise provided by statute, all proceeds from the lottery, after deduction of prizes and expenses, shall be allocated to the conservation trust fund of the state for distribution to municipalities and counties for park, recreation, and open space purposes.”); Del. Const. art. II, § 17(a) (“All forms of gambling are prohibited in this State except . . . [l]otteries under State control for the purpose of raising funds”); Ga. Const. art. I, § 2, ¶ 8(c) (“Proceeds derived from the lottery or lotteries operated by or on behalf of the state shall be used to pay the operating expenses of the lottery or lotteries, including all prizes, without any appropriation required by law, and for educational programs and purposes as hereinafter provided.”); La. Const. art. XII, § 6(A)(1) (“The 142 Scope of Exemption Under Federal Lottery Statutes for State-Conducted Lotteries That said, we think it is permissible for a state to compensate private contractors with some portion of the lottery’s revenues or with some financial incentives that are contingent on the lottery’s achievement of certain revenue objectives. For example, a state may agree to increase a private management company’s fee by a certain amount if the lottery’s revenues grow by a specified percentage in a given year. So long as the management company is not to receive more than a de minimis share of the lottery’s profits, such an agreement would not significantly diminish the state’s incentive to exercise actual control over the lottery. Finally, it has been suggested that a private management company should be required to deposit lottery revenues into accounts owned by and maintained in the name of the state or state agency overseeing the lottery, and that the company be permitted to disburse funds from these accounts only on terms set forth in the management agreement. We believe that such accounting practices could be helpful in ensuring that the state, and not the private management company, is actually conducting the lottery business. Although we are not able to say that any particular accounting practice is mandated by the statutes, the more transparent the accounting procedure, 13 the more likely it will be that the state is in fact exercising active ownership and control over the enterprise. net proceeds from the operation of the lottery shall be deposited in a special fund created in the state treasury entitled the Lottery Proceeds Fund.”); N.D. Const. art. XI, § 25 (“[T]he legislative assembly shall authorize the state of North Dakota to join a multi-state lottery for the benefit of the state of North Dakota”); Mo. Const. art. III, § 39(b)(2), (3) (“The money received by the Missouri state lottery commission from the sale of Missouri lottery tickets, and from all other sources . . . shall be appropriated solely for public institutions of elementary, secondary and higher education.”); N.H. Const. pt. 2, art. 6-b (“All moneys received from a state-run lottery and all the interest received on such moneys shall, after deducting the necessary costs of administration, be appropriated and used exclusively for the school districts of the state.”); N.J. Const. art. IV, § 7, ¶ 2.C (“It shall be lawful for the Legislature to authorize the conduct of State lotteries restricted to the selling of rights to participate therein and the awarding of prizes by drawings when the entire net proceeds of any such lottery shall be for State institutions and State aid for education”); Tenn. Const. art. XI, § 5 (“[T]he legislature may authorize a state lottery if the net proceeds of the lottery’s revenues are allocated to provide financial assistance to citizens of this state to enable such citizens to attend post-secondary educational institutions located within this state.”); Va. Const. art. X, § 7-A (“Lottery proceeds shall be appropriated from the Fund to the Commonwealth’s counties, cities and towns, and the school divisions thereof, to be expended for the purposes of public education.”); Wis. Const. art. IV, § 24(6)(a) (“[N]et proceeds of the state lottery shall be deposited in the treasury of the state, to be used for property tax relief for residents of this state as provided by law.”). 13 See, e.g., Cal. Gov’t Code § 8880.41 (“The director shall make and keep books and records that accurately and fairly reflect each day’s transactions, including, but not limited to, the distribution of tickets or shares to lottery game retailers, receipt of funds, prize claims, prize disbursements or prizes liable to be paid, expenses and other financial transactions of the lottery . . . .”); id. § 8880.42 (“The director shall provide a monthly cumulative sales report to the commission and the Controller within 15 days after the end of each month.”). 143 Opinions of the Office of Legal Counsel in Volume 32 III. In sum, in order to satisfy the federal lottery statute exemption for lotteries “conducted by a State,” the state must exercise actual control over all significant business decisions made by the lottery enterprise and retain all but a de minimis share of the equity interest in the profits and losses of the business, as well as the rights to the trademarks and other unique intellectual property or essential assets of the state’s lottery. It is permissible under the exemption for a state to contract with private firms to provide goods and services necessary to enable the state to conduct its lottery, including management services, as discussed herein. STEVEN G. BRADBURY Principal Deputy Assistant Attorney General Office of Legal Counsel 144

Write a legal research memo on the following topic.

December 18, 1978 78-98 MEMORANDUM OPINION FOR THE GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY Supremacy Clause (Art. VI, cl. 2)— Central Intelligence Agency— Polygraph Examinations of Employee of CIA Contracts Your Office has requested our views on State law that may bear on your Agency’s administration o f polygraph examinations o f certain key employees of United States corporations having classified contracts with the Central Intelligence Agency (CIA). I. O ur discussion begins with the question whether the CIA is authorized as a matter o f Federal law to adm inister polygraph examinations in order to protect adequately classified information from public disclosure. Several provisions o f law, o f both general and particular applicability, support the C IA ’s authority. As a general matter, Executive Order No. 12065, 43 F.R. 28949 (June 28, 1978), reprinted in 50 U .S.C . § 401 Note (Supp. II 1978), requires Federal agencies to ensure the security of classified informa­ tion. The pertinent provisions of that order provide: No person may be given access to classified information unless that person has been determ ined to be trustworthy and unless access is necessary for the performance of official duties. (§ 4 -101') Controls shall be established by each agency to ensure that classified information is used, processed, stored, reproduced, and transmitted only under conditions that will provide adequate protec­ tion and prevent access by unauthorized persons. (§ 4-103) 'Inform ation Security Oversight O ffice D irective No. I (approved Septem ber 29,1978) issued pursuant to Executive O rder No. 12065. §§ 5-202(d), 6-204. states that: A person is eligible for access to classified inform ation only after a show ing o f trustworthiness as determ ined by agency heads based upon appropriate investigations in accordance with applicable standards and criteria. (§ IV. B. 2.) 426 Agency heads listed in Section 1-201 may create special access programs to control access, distribution, and protection of particu­ larly sensitive information classified pursuant to this Order or prior Orders. (§ 4-201) The order also mandates that “ classified information disseminated outside the Executive branch shall be given protection equivalent to that afforded within the Executive branch.” § 4-105. This provision, in conjunction with those above, appears to require security precautions in instances where classified information is to be given to the employees of CIA contractors. Several other provisions o f law are relevant. First, the Director of the CIA is made responsible by statute “ for protecting intelligence sources and m ethods.” 50 U .S.C . §§ 403(d)(3), 403g (1976). Second, Executive Order No. 12036,43 F.R. 3674 (Jan. 26, 1978), reprinted in 50 U .S.C . § 401 Note (Supp. II 1978), requires the CIA to “ protect the security of its installations, activities, information and personnel by appropriate means, including such investigations of applicants, employees, contractors, and other persons with similar associations with the CIA as are necessary.” § 1-811. This provision as well as others in the order (see §§ 2-206(d), 2-208(c)), explicitly allows for investigations of those contractors handling sensitive information. It seems evident that, on the basis of the foregoing authorities, the CIA is authorized and required to conduct investigations of its contractors’ employees in order to ensure the security of classified information. In light of this duty and on the basis of information supplied by your Agency, the use of polygraph examinations is an authorized Federal function. Although there is no Federal law explicitly authorizing such a process, that lack cannot be deemed controlling. See, U nited S tates v. M acdan iel, 32 U.S. (7 Pet.) 1, 13-14 (1833). Where a statute imposes a duty, it authorizes by implication all reasonable and necessary means to effectuate the duty. U nited States v. Jones, 204 F. (2d) 745, 754 (7th Cir. 1953); U nited States v. K elly, 55 F. (2d) 67 (2d Cir. 1932); 2A Sutherland, Statutes and Statutory Construction, § 55.04, at 384 (4th ed. 1973).2 The use o f polygraph tests, we are told, provides a means whereby information submitted by employees can be evaluated and verified with a view toward determining whether employees may be entrusted with classified information. We are also informed that this technique elicits information that could not otherwise be elicited, and, therefore, tightens security in a way which could not otherwise be done. In the view of the CIA, these factors make polygraph examinations an “ extraordinarily useful device.” On this basis, a polygraph examination can be seen as a reasonable and necessary means to the effectuation of duties imposed on the CIA under Federal law and, therefore, under the authorities cited above, its use is authorized.3 2The same general rule is set forth in Executive O rder No. 12036, S 1-811, which authorizes "appropriate m eans” to protect security. 3W e understand that those to be tested are know ingly perform ing work for the CIA , are inform ed of the C IA ’s involvem ent in the testing, and consent to it. That being the case, we do not believe that any problem s arise under the prohibition on the C IA 's perform ance of internal security or law enforcem ent functions, see 50 U .S .C . § 403(d)(3) (1976), even as that prohibition was interpreted (Continued) 427 We believe, however, that a caveat is in order. Executive Order No. 12036, § 1-811, allows for “ such investigations o f . . . contractors . . . as are n eces­ sa ry . ” This requirem ent might be read to preclude the administration of polygraph tests on an undifferentiated basis to all employees of a contractor. Rather, some evaluation and determ ination as to the need with respect to a particular contractor’s em ployees, or to certain classes o f such employees, would appear to be more consonant with this provision. Since polygraph testing is apparently now being adm inistered only to “ key em ployees,” who either have access to a great deal o f classified information or have an unusually comprehensive knowledge o f CIA projects, it appears that the need is taken into account. II. Massachusetts has enacted the following statute: Any em ployer who subjects any person employed by him, or any person applying for em ploym ent, to a lie detector test, or causes, directly or indirectly, any such employee or applicant to take a lie detector test, shall be punished by a fine o f not more than two hundred dollars. This section shall not apply to lie detector tests administered by law enforcem ent agencies in the performance of their official duties. [Chapter 149, § 19B, M ass. Gen. Law] One question is whether this statute may legitimately be applied to either the CIA itself or its contractor in M assachusetts. Your office believes that, by its own terms, the statute does not encom pass CIA polygraph examinations. The interpretation o f the statute is a function which must be performed by the appropriate State officials, although it is proper for you to urge on them your interpretation. We address here only the question o f the validity o f the statute, assuming that it does impinge on the perform ance of a Federal function. For the reasons that follow, we believe that M assachusetts may not apply the statute to either the CIA or its contractors. A. It is a fundamental principle o f Federal constitutional law that, by reason of the Supremacy Clause, Article VI, cl. 2, the legitimate activities of the Federal Government may not be impeded by a State. M ayo v. U nited States, 319 U.S. 441, 445 (1943). We thus do not believe that M assachusetts can prohibit the CIA from conducting polygraph exam inations the CIA is authorized to conduct under Federal law. Concededly, the situation here is different from the usual Supremacy Clause question. In the ordinary case, courts are called upon to review State laws that conflict with a Federal statute or regulation. Although the D irector’s authoriza­ tion o f polygraph exam inations does not, in term s, proceed from statute or (C ontinued) in Weissman v. C M , 565 F. (2d) 692 (D .C . C ir. 1977). N or are we aware o f any other general prohibition, in either a statute or Executive order, on the use o f polygraph testing by intelligence agencies. 428 regulation, we do not believe that this is of any real consequence. It is not the abstract inconsistency between the express terms of State and Federal law which is the concern underlying the Supremacy Clause. C f , L os A lam os School B oard v. W ugalter, 557 F. (2d) 709, 714 ( 10th Cir. 1977) (potential or peripheral conflicts between State and Federal law will not render a State law invalid). Rather, the evil that the clause addresses is obstruction to the accomplishment and execution of lawful Federal purposes and objectives. Hines v. D avidow itz, 312 U.S. 52, 67 (1941). This may occur not only when State law conflicts with the express terms o f the Federal law, but also when State law impedes the performance of activities conducted under the authority of Federal law. See, U nited States v. P ublic Service Com m ission, 422 F. Supp. 676 (D. Md. 1976) (three-judge court) (authority of the General Services Administration to conduct cross-examinations in State utility rate proceedings beyond time limit imposed by the State); In Re N ew York State Sales Tax R ecords, 382 F. Supp. 1205 (W .D . N .Y . 1974) (exercise of grand jury powers prevails over state nondisclosure law); see also, U nited States v. C ity o f Chester, 144 F. (2d) 415, 420 (3rd Cir. 1944). Since we have concluded that the administration of polygraph examinations is an activity authorized by Federal law, we do not believe that it may be impeded by State law. We recognize that, in certain circum stances, State law applies to, and controls, the exercise of various Federal functions. [This obtains, however, only where the application of State law would not undermine those functions.] M ayo v. U nited States, supra, at 446. We are informed that the application of the statute to the CIA would result in its inability to perform satisfactory security checks, and this in turn would substantially impair its procurement operations. On this basis, we do not believe that the above rationale justifies application of the Massachusetts statute. The Supremacy Clause question often becomes one o f assessing congres­ sional intent, i.e.., whether in the statutes under which the Executive branch is implementing some regulation or program, Congress intended Federal action to override inconsistent State laws. In some instances an examination of the legislative history and the structure o f a statute reveals that Congress did not intend to interfere with State regulation. W here, however, there is a clear conflict between the implementation of a legitimate Federal function and a State law, and there is no evidence that Congress contemplated that the Federal interest would be subordinated, the State enactment must yield. We believe that conflict to exist here. III. The question remains whether, even though the Massachusetts statute may not be applied to the CIA itself, it is applicable to the C IA ’s contractor. We reiterate that we express no views as to the interpretation of the statute insofar as the C IA ’s contractor is generally concerned. Rather, we discuss only whether the statute may legitimately be applied to the contractor in connection with its work for the CIA. This question does not admit of an easy answer. It is clear that the mere fact that a particular entity is performing work for the Federal Government does not exempt it altogether from State regulation. R ailw ay M ail A ssociation v. C orsi, 326 U.S. 88, 95-96 (1945) (applying State nondiscrimination law to postal 429 union); Stew art an d C o. v. Sandrakula, 309 U.S. 94 (1940) (State safety requirement applicable to Federal contractor); P ublic Housing Adm inistration v. B ristol Township, 146 F. Supp. 859 (E.D . Pa. 1956) (Federal contractor required to adhere to building code requirements). On the other hand, it also seems clear that a com pany’s performance o f work for the Federal Government may at times exempt it from State or local regulation. L eslie M iller, Inc. v. Arkansas, 352 U.S. 187, 190 (1956); P acific C oast D airy > v. D epartm ent o f Agriculture o f California, 318 U .S. 285 (1943); C ontractors Association o f Eastern Pennsylvania v. S ecretary o f L abor, 442 F. (2d) 159, 166 (3rd Cir. 1971). The approach the courts take in assessing the application of State statutes imposing burdens on Federal contractors is much the same as their approach with regard to statutes imposing burdens on the Federal Government itself. That is, the courts look to whether the statute would frustrate the operation of Federal functions. R ailw ay M ai! Association v. C orsi, supra, at 95-96; Leslie M iller, Inc. v. A rkansas, supra, at 190; S tew ard and C o. v. Sandrakula. supra, at 103-04. Under this standard, the application of the Massachusetts law to the contractor would frustrate Federal functions to the same extent as if the law were to apply to the CIA itself. According to the CIA, such an application would inevitably result in the contractor’s refusal to allow his employees to take part in the polygraph examination program, which, in turn, would result in less than adequate security and ultimately would jeopardize CIA procurement. In our opinion, the decisions under the Supremacy Clause would not allow State law to cause this sort of disruption o f a Federal program, even if the State law is being applied only to a contractor. IV. For the foregoing reasons, we do not believe that the Massachusetts law in question may legitimately be applied to either the CIA or its contractors so as to preclude authorized polygraph exam inations. However, a word o f caution is appropriate. The application of State law to Federal contractors is generally dependent on the particular facts and circumstances; see, M ayo v. U nited States, 319 U .S ., at 447-448; L os A lam os School B oard v. Wugalter, 557 F. (2d), at 712, 714. This is a question which necessarily entails a judgment predi­ cated on any number of different factors. M oreover, as the considerable volume of case law in the State-Federal conflict area demonstrates, disputes of this type often result in litigation and resolution pursuant to standards that are often difficult to apply with precision. It is, therefore, an area in which prelitigation predictions should be cautious. Larry A. Ham m ond D eputy A ssistan t A ttorney G eneral Office o f L egal Counsel 430

Write a legal research memo on the following topic.

Officers of the United States Within the Meaning of the Appointments Clause A position to which is delegated by legal authority a portion of the sovereign powers of the federal government and that is “continuing” is a federal office subject to the Constitution’s Appointments Clause. A person who would hold such a position must be properly made an “Officer[] of the United States” by being appointed pursuant to the procedures specified in the Appointments Clause. April 16, 2007 MEMORANDUM OPINION FOR THE GENERAL COUNSELS OF THE EXECUTIVE BRANCH I. The Safeguards of the Appointments Clause ..................................................... 74 II. The Essential Elements of an Office Subject to the Appointments Clause ...... 76 A. The Position Must Possess Delegated Sovereign Authority of the Federal Government .................................................................................. 78 1. The Foundations of This Element ....................................................... 78 2. Defining Delegated Sovereign Authority............................................ 87 3. Three Arguably Relevant Characteristics ........................................... 93 a. Discretion ..................................................................................... 93 b. Contractors................................................................................... 96 c. State Officers ............................................................................... 99 B. The Position Must Be “Continuing” ........................................................ 100 1. The Foundations of This Element ..................................................... 101 2. Defining a “Continuing” Position ..................................................... 111 3. A Few Recurring Areas .................................................................... 113 C. Several Additional Criteria Are Incidental, Not Distinct Elements of an Office .................................................................................................. 115 1. Method of Appointment .................................................................... 115 2. Established by Law ........................................................................... 117 3. Oath of Office ................................................................................... 119 4. Emoluments ...................................................................................... 119 5. Commission ...................................................................................... 122 III. Conclusion .................................................................................................... 122 This memorandum addresses the requirements of the Appointments Clause of the Constitution, which sets out the exclusive methods of appointing all “Officers of the United States” whose appointments are not otherwise provided for in the Constitution. U.S. Const. art. II, § 2, cl. 2. In particular, we address which positions are required by that Clause to be filled pursuant to its procedures. We conclude that any position having the two essential characteristics of a federal “office” is subject to the Appointments Clause. That is, a position, however labeled, is in 73 Opinions of the Office of Legal Counsel in Volume 31 fact a federal office if (1) it is invested by legal authority with a portion of the sovereign powers of the federal government, and (2) it is “continuing.” A person who would hold such a position must be properly made an “Officer[] of the United States” by being appointed pursuant to the procedures specified in the Appointments Clause. I. The Safeguards of the Appointments Clause The Appointments Clause provides: [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Id. The Appointments Clause, as the Supreme Court has explained, reflects more than a “frivolous” concern for “etiquette or protocol.” Buckley v. Valeo, 424 U.S. 1, 125 (1976) (per curiam). Rather, the Clause limits the exercise of certain kinds of governmental power to those persons appointed pursuant to the specific procedures it sets forth for the appointment of “officers.” As the Supreme Court explained in Buckley: 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,” is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an “Officer of the United States,” and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article. Id. at 125–26 (citation omitted; quoting United States v. Germaine, 99 U.S. 508, 510 (1879)); see also id. at 132 (“Unless their selection is elsewhere provided for, all officers of the United States are to be appointed in accordance with the Clause. . . . No class or type of officer is excluded because of its special functions.”); id. at 136 (noting that prior cases allowing restrictions on President’s removal power had been careful not to suggest that his appointment power could be infringed). Applying this understanding, the Court in Buckley unanimously held that the Appointments Clause required that the enforcement, regulatory, and other administrative powers of the Federal Election Commission could properly “be exercised only by ‘Officers of the United States,’ appointed in conformity with” 74 Officers of the United States Within the Meaning of the Appointments Clause the Clause. Id. at 143; see id. at 267 (White, J., concurring in part and dissenting in part) (agreeing). Because the members of the Commission had not been so appointed, the Commission could not constitutionally exercise these powers. Id. at 141–43 (opinion of Court); see also id. at 126–27 (describing existing appointment procedure). This Office also has long taken the same view of the force of the Appointments Clause. We have concluded, for example, that it is not “within Congress’s power to exempt federal instrumentalities from the Constitution’s structural requirements, such as the Appointments Clause”; that Congress may not, for example, resort to the corporate form as an “artifice” to “evade the ‘solemn obligations’ of the doctrine of separation of powers,” The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 148 n.70 (1996) (“Separation of Powers”); and that the “methods of appointment” the Appointments Clause specifies “are exclusive,” Common Legislative Encroachments on Executive Branch Authority, 13 Op. O.L.C. 248, 249 (1989) (“Legislative Encroachments”). Indeed, the Court’s conclusion in Buckley that the methods of appointment in the Appointments Clause are exclusive for anyone who can be said to hold an office under the United States was anticipated by a line of Attorney General opinions dating back to well before the Civil War. See, e.g., Appointment and Removal of Inspectors of Customs, 4 Op. Att’y Gen. 162, 164 (1843); see also Civil Service Comm’n, 13 Op. Att’y Gen. 516, 518 (1871) (Appointments Clause “must be construed as excluding all other modes of appointment” of executive and judicial officers). Moreover, the text of the Appointments Clause emphatically applies to “all” officers of the United States, unless their method of appointment is “otherwise provided for” in the Constitution. The requirements of the Appointments Clause are “among the significant structural safeguards of the constitutional scheme” and are “designed to preserve political accountability relative to important government assignments.” Edmond v. United States, 520 U.S. 651, 659, 663 (1997). The Clause “is a bulwark against one branch aggrandizing its power at the expense of another branch,” particularly by preventing Congress from taking to itself the appointment power, as was at issue in Buckley, or otherwise stripping that power from the other Branches. Ryder v. United States, 515 U.S. 177, 182 (1995). By vesting the selection of principal officers in the President and of inferior officers in the President or certain other officers of the Executive or Judicial Branches, the Clause “prevents congressional encroachment upon” those branches, Edmond, 520 U.S. at 659, and supports the President’s authority and duty to see to the execution of the laws, Printz v. United States, 521 U.S. 898, 922–23 (1997). But the Appointments Clause “is more: it preserves another aspect of the Constitution’s structural integrity by preventing the diffusion of the appointment power.” Ryder, 515 U.S. at 182 (internal quotation marks omitted). Thus, in Ryder the Court held invalid a military court’s affirmance of a conviction where, even though the court had been appointed by an Executive 75 Opinions of the Office of Legal Counsel in Volume 31 Branch officer, the appointing official was not among those specified in the Appointments Clause. Id. at 179; see also United States v. Maurice, 26 F. Cas. 1211, 1216, 1219 (C.C.D. Va. 1823) (No. 15,747) (Marshall, Circuit Justice) (finding appointment by cabinet member, rather than President with Senate advice and consent, invalid under the Appointments Clause and stating that “the policy of the law condemns such appointments,” although illegal appointment did not prevent governmental suit to recover money from appointee); cf. Auffmordt v. Hedden, 137 U.S. 310, 326–28 (1890) (rejecting Appointments Clause challenge to action of appraiser appointed by inferior Executive Branch officer—not because Clause did not impose constraints but because position was not an office). By preventing diffusion, the Appointments Clause helps to ensure accountability for the quality of appointments and the operation of the government—through a limited number of publicly known and readily discernible sources of appointing authority, and also, ultimately, through the threat of impeachment, by which Congress may both remove a person from any civil “Office” and disqualify him “to hold and enjoy any Office.” U.S. Const. art. II, § 4; id. art. I, § 3. 1 II. The Essential Elements of an Office Subject to the Appointments Clause Although Buckley and subsequent cases confirm that the Appointments Clause limits the conferral of certain kinds of governmental authority to properly appointed “officers,” the Supreme Court has not articulated the precise scope and application of the Clause’s requirements; the Executive Branch, as explained below, has adopted differing interpretations since Buckley; and questions about the Clause continue to arise regularly both in the operation of the Executive Branch and in proposed legislation. We therefore have reconsidered the scope of the Clause’s requirements; in doing so, we have focused on relevant constitutional text and the earliest authorities that illuminate that text, as well as Supreme Court authority. The remainder of this memorandum explains the basis for and contours of the two elements of an “office” under the United States whose occupant must 1 This memorandum does not address other separation of powers principles that might restrict the allocation of appointing authority or the exercise of governmental powers, including the “antiaggrandizement” principle, constraints on the delegation of power outside of the federal government, and the powers and duties of the President under Article II, such as his duty under the Take Care Clause. See, e.g., Separation of Powers, 20 Op. O.L.C. at 131–32, 175–77; Deputization of Members of Congress as Special Deputy U.S. Marshals, 18 Op. O.L.C. 125 (1994); Springer v. Philippine Islands, 277 U.S. 189, 203 (1928) (applying separation of powers principles to interpret statute as barring territorial legislature from appointing persons to vote government’s stock in a corporation, regardless of whether such persons “are public officers in a strict sense”). 76 Officers of the United States Within the Meaning of the Appointments Clause be appointed in accordance with the Appointments Clause. 2 This memorandum discusses and explains the governing principles, which are consistent with and expand on Buckley and the precedents on which it relied. But apart from the few specific instances that we expressly consider (such as qui tam relators and independent counsels, below in Part II.B.3), this memorandum is not intended to address whether any particular position would be an office or to call into question any particular existing position. Please consult this Office should any particular Appointments Clause question arise that you are unable to resolve based on the principles we set out. Subpart A explains that a federal office involves a position to which is delegated by legal authority a portion of the sovereign powers of the federal government. Such powers primarily involve binding the government or third parties for the benefit of the public, such as by administering, executing, or authoritatively interpreting the laws. Delegated sovereign authority also includes other activities of the Executive Branch concerning the public that might not necessarily be described as the administration, execution, or authoritative interpretation of the laws but nevertheless have long been understood to be sovereign functions, particularly the authority to represent the United States to foreign nations or to command military force on behalf of the government. By contrast, an individual who occupies a purely advisory position (one having no legal authority), who is a typical contractor (providing goods or services), or who possesses his authority from a state does not hold a position with delegated sovereign authority of the federal government and therefore does not hold a federal office. Subpart B explains that, for a position to be a federal office, it also must be “continuing,” which means either that the position is permanent or that, even though temporary, it is not personal, “transient,” or “incidental.” Thus, special diplomatic agents, short-term contractors, qui tam relators, and many others in positions that have authority on an ad hoc or temporary basis do not hold offices. Persons holding such non-continuing positions need not be appointed in conformity with the Appointments Clause, even if they temporarily exercise delegated sovereign authority. Primarily because of this element, our analysis departs from that taken in such prior memoranda as Legislative Encroachments, 13 Op. O.L.C. at 249, and Constitutionality of the Qui Tam Provisions of the False Claims Act, 13 Op. O.L.C. 207, 221–24 (1989). Finally, Subpart C discusses additional criteria that have been considered in certain contexts for determining when a position is an office or when an individual is an officer. At least for purposes of the Appointments Clause, these criteria are 2 Even if the Appointments Clause applies to a position, the Clause does permit various means of relieving administrative burdens on the appointing officer. See Assignment of Certain Functions Related to Military Appointments, 29 Op. O.L.C. 132, 133-38 (2005). 77 Opinions of the Office of Legal Counsel in Volume 31 not essential, even if relevant to determining the presence of the two essential elements. In many cases, they are incidental traits that often flow from the existence of an office but do not define an office. One such criterion, which this Office previously considered essential, is whether a position involves employment within the federal government. See Separation of Powers, 20 Op. O.L.C. at 145– 48. As suggested when we formally published Separation of Powers in 2002, this prior analysis has been found “inadequate as an expression of the Office’s advice on separation of powers.” Id. at 124 (editor’s note). As we explain, federal employment is not necessary for the Appointments Clause to apply. In addition, we explain that the statutory basis for a position ordinarily will be relevant to whether the position involves delegated sovereign authority and is continuing, and thus is an “office” subject to the Appointments Clause, although the applicability of the Clause does not depend on whether Congress has formally and directly created an “office.” A. The Position Must Possess Delegated Sovereign Authority of the Federal Government The first essential element of an office under the United States is the delegation by legal authority of a portion of the sovereign powers of the federal government. A position must have the authority to exercise such power before the Appointments Clause will require that the occupant of the position be made an “Officer[] of the United States.” After laying out the authority for this element, we explain its contours and then address three arguably special situations. 1. The Foundations of This Element The text and structure of the Constitution reveal that officers are persons to whom the powers “delegated to the United States by the Constitution,” U.S. Const. amend. X, are in turn delegated in order to be carried out. The President himself is said to “hold [an] Office,” and the Constitution provides that “[t]he executive Power shall be vested in” that office. Id. art. II, § 1, cl. 1. The President cannot carry out the executive power alone, and so the Constitution further contemplates that executive power will be delegated to officers to help the President fulfill this duty. The Constitution recognizes that the President would need to delegate authority to others in, among other places, the clauses empowering him to “take Care that the Laws be faithfully executed,” and then, immediately following, providing that the President “shall Commission all the Officers of the United States.” Id. § 3 (emphases added). The Constitution also provides that the President “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” Id. § 2, cl. 1. See also id. art. I, § 6 (barring members of Congress in certain cases from being “appointed to any civil Office under the Authority of the 78 Officers of the United States Within the Meaning of the Appointments Clause United States”); id. § 8, cl. 18 (referring to the “Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”); cf. id. cls. 15–16 (referring to “the Officers” of the militia, who, when called into federal service, provide one means of executing federal law). As the Supreme Court has explained: “The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says, ‘shall take Care that the Laws be faithfully executed,’ Art. II, § 3, personally and through officers whom he appoints (save for such inferior officers as Congress may authorize to be appointed by the ‘Courts of Law’ or by ‘the Heads of Departments’ who are themselves Presidential appointees), Art. II, § 2.” Printz, 521 U.S. at 922; see In re Neagle, 135 U.S. 1, 63 (1890) (President’s authority to appoint and commission officers is “the means of fulfilling” his obligation under the Take Care Clause); Myers v. United States, 272 U.S. 52, 133 (1926) (same); The President and Accounting Officers, 1 Op. Att’y Gen. 624, 625 (1823) (similar). Printz was echoing President Washington, who explained in 1789 that “[t]he impossibility that one man should be able to perform all the great business of the State, I take to have been the reason for instituting the great Departments, and appointing officers therein, to assist the supreme Magistrate in discharging the duties of his trust.” 30 Writings of George Washington 333, 334 (May 25, 1789) (John C. Fitzpatrick ed., 1939). 3 Similarly, the Constitution describes the persons to whom is delegated the “judicial Power of the United States,” a particular kind of power to render binding interpretations of federal law (in the course of deciding cases or controversies), as “hold[ing] . . . Offices.” U.S. Const. art. III, § 1. This power is primarily delegated to the “Judges of the supreme Court,” id. art. II, § 2, cl. 2; and the “Judges . . . of the . . . inferior Courts,” id. art. III, § 1; but also to other officers, see Buckley, 424 U.S. at 126 (clerk, citing Ex parte Hennen, 38 U.S. 3 Regarding the significance of the President’s constitutional status as head of the Executive Branch, and his take-care duty, to the nature of an office as a delegation of executive power, see also James Madison, Notes of Debates in the Federal Convention of 1787, at 324 (Norton 1987) (Gouverneur Morris, July 19, 1787) (“There must be certain great officers of State; a minister of finance, of war, of foreign affairs &c. These he presumes will exercise their functions in subordination to the Executive, and will be amenable by impeachment to the public Justice. Without these ministers the Executive can do nothing of consequence.”); 1 Annals of Cong. 481 (James Madison, June 16, 1789) (“if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws”); id. at 492 (Fisher Ames, June 16, 1789) (“[I]t was necessary to delegate considerable powers . . . . The constitution places all executive power in the hands of the President, and could he personally execute all the laws, there would be no occasion for establishing auxiliaries; but the circumscribed powers of human nature in one man, demand the aid of others.”); id. at 637 (Theodore Sedgwick, June 29, 1789) (stating that Representative Sedgwick “conceived that a majority of the House had decided that all officers concerned in executive business should depend upon the will of the President for their continuance in office; and with good reason, for they were the eyes and arms of the principal Magistrate, the instruments of execution”). 79 Opinions of the Office of Legal Counsel in Volume 31 (13 Pet.) 230 (1839)); 3 Joseph Story, Commentaries on the Constitution of the United States § 1530, at 387 (1833) (“Story”) (clerk and reporter). 4 The debate on the ratification of the Constitution reinforces both this textual understanding of a federal “office” as characterized by the delegated sovereign authority of the federal government and the relation of the Appointments Clause to such a position. James Madison argued in the Federalist that the Constitution would establish a republican government, which he defined as one that “derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.” The Federalist No. 39, at 251 (Jacob E. Cooke ed., 1961). Alexander Hamilton similarly explained in Federalist No. 72 that the Executive Branch would be administered by appointed officers exercising the delegated executive power of the President: The administration of government . . . in its most usual and perhaps in its most precise signification . . . falls peculiarly within the province of the executive department. The actual conduct of foreign negotiations, the preparatory plans of finance, the application and disbursement of the public moneys, in conformity to the general appropriations of the legislature; the arrangement of the army and navy, the direction of the operations of war; these, and other matters of a like nature constitute what seems to be most properly understood by the administration of government. The persons therefore, to whose immediate management these different matters are committed, ought to be considered as the assistants or deputies of the chief magistrate; and, on this account, they ought to derive their offices from his appointment, at least from his nomination, and ought to be subject to his superintendence. Id. at 486–87 (emphasis added); see also The Federalist No. 29, at 183 (Alexander Hamilton) (referring to “the officers who may be entrusted with the execution of [the] laws”); cf. The Federalist No. 64, at 436 (John Jay) (referring to Constitution’s allocation of “power to do” each “act of sovereignty by which the citizens are to be bound and affected,” such as making laws, making treaties, and entering court judgments). 4 The Constitution specially provides for the election of representatives and senators, for each house of Congress to choose its legislative officers (except for the President of the Senate, an office held ex officio by the Vice President), and for the election of the President and Vice President. See U.S. Const. art. I, § 2, cl. 5; id. art. I, § 3, cl. 5; id. art. II, § 1 & amend. XII. These offices are therefore excluded from the Appointments Clause by its terms. 80 Officers of the United States Within the Meaning of the Appointments Clause The earliest commentators shared and perpetuated the Federalist’s understanding of a federal office as involving the wielding of delegated sovereign authority. William Rawle explained in the 1820s in his prominent commentary on the Constitution that one of “the means provided to enable the president to perform his public duties” is creation of “[s]ubordinate offices,” A View of the Constitution of the United States of America 151–52 (2d ed. 1829); described the appointment of officers as the means to allow the President “agents . . . for public duties,” id. at 162; and supported the power to impeach officers because “[t]he delegation of important trusts, affecting the higher interests of society, is always from various causes liable to abuse,” id. at 211. Joseph Story in the 1830s echoed Madison by explaining that “in a republican government[,] offices are established, and are to be filled . . . for purposes of the highest public good; to give dignity, strength, purity, and energy to the administration of the laws.” 3 Story § 1524, at 376. In his view, the Appointments Clause “give[s] to the president a power over the appointments of those, who are in conjunction with himself to execute the laws.” Id. Attorney General Cushing in the 1850s, surveying the law and practice regarding the operation of the Executive Branch, similarly explained that “the lawful will of the President may be announced, and an act in the authority of the President performed, not merely by a Head of Department, but, in the second or other degree of delegation, by some officer subordinate to such head.” Relation of the President to the Executive Departments, 7 Op. Att’y Gen. 453, 473 (1855). See also The Jewels of the Princess of Orange, 2 Op. Att’y Gen. 482, 489 (1831) (discussing case in which by statute the President “could only act through his subordinate officer” but might issue an order to that officer and enforce it through his removal power); John N. Pomeroy, An Introduction to the Constitutional Law of the United States § 642, at 425 (7th ed. 1883) (“Pomeroy”) (“the officers, in all their various subordinate grades, are the means and instruments by which the laws shall be executed, and the general functions and duties of the department performed”). The common law of the time of the Founding also indicates that delegated sovereign authority is a key characteristic of an office. In late eighteenth century England, “offices” involved a “duty, and in the next place the charge of such duty.” Giles Jacob, A New Law Dictionary, tit. Office (9th ed. 1772) (“Jacob”); see also 2 T. Cunningham, A New and Complete Law Dictionary, tit. Office (2d ed. 1771) (same) (“Cunningham”); 3 Matthew Bacon, A New Abridgment of the Law (4th ed. 1778) (same). “[A]n ‘officer,’” then, “was simply one whom the King had charged with a duty.” Edward S. Corwin, The President: Office and Powers 1789– 1948, at 85 (5th ed. 1984). A public officer (as distinct from a private one) was someone whom the King had charged with “any duty concerning the publick.” Jacob, tit. Office; Cunningham, tit. Office. More particularly, public offices involved authority to “affect the people generally,” John Bouvier, A Law Dictionary 203 (1839) (1993 reprint) (“Bouvier”), and “entitle[d] a man to act in the affairs of others without their appointment or permission,” P.G. Osborn, A Concise 81 Opinions of the Office of Legal Counsel in Volume 31 Law Dictionary 223 (2d ed. 1937); 2 Stewart Rapalje & Robert Lawrence, A Dictionary of American and English Law 895 (1883) (same). Thus, the general common law rule for public offices at the Founding was that “where one man hath to do with another’s affairs against his will, and without his leave, that this is an office, and he who is in it, is an officer.” Jacob, tit. Office; Cunningham, tit. Office (same). The dictionaries derived this rule, essentially verbatim, from the reported arguments of the Crown in the early case of King v. Burnell, Carth. 478 (K.B. 1700). See id. at 478 (so stating the “Rule”). Burnell involved the Censor of the College of Physicians, and the Crown contended that he was a public officer (and therefore subject to an oath requirement) because (1) the King had the duty to take “Care of the Persons of his Subjects, and consequently of their health”; (2) he had “delegated so much of his Office unto those Censors”; and (3) “he is an Officer subordinate, who hath any Part of the King’s publick care delegated to him by the King.” Id. at 478–79; see also id. at 479 (argument for doctor, not denying general rule as applied to revenue officers and officers of the peace but claiming exception for “particular Powers created for particular Purposes”). The Founders, several decades after Burnell, had a similar (albeit less favorable) view of the characteristics of a public office: The Declaration of Independence charged that King George III had “erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance.” Declaration of Independence ¶ 12 (U.S. 1776). Two years before, the First Continental Congress had written of “oppressive officers” who needed, by means of the freedom of the press, to be “shamed or intimidated into more honorable and just modes of conducting affairs.” Appeal to the Inhabitants of Quebec, 1 Journals of the Continental Congress 105, 108 (1774). Officers, thus, were persons holding sovereign authority delegated from the King that enabled them in conducting the affairs of government to affect the people “against [their] will, and without [their] leave.” Burnell, Carth. at 478. So critical to the Founders’ thinking was the abuse of power and the corruption surrounding public offices that “‘the power of appointment to offices’ was deemed ‘the most insidious and powerful weapon of eighteenth century despotism.’” Freytag v. Comm’r, 501 U.S. 868, 883 (1991) (quoting Gordon Wood, The Creation of the American Republic 1776–1787, at 143 (1969)); see generally Bernard Bailyn, The Origins of American Politics 63–91 (1970) (discussing the Founders’ complaints about the power of royal officials); The Federalist No. 76, at 509–10 (Alexander Hamilton) (praising the Appointments Clause as likely “to promote a judicious choice of men for filling the offices of the Union,” on which choices “must essentially depend the character of [the government’s] administration,” which was, in turn, “‘the true test of a good government’”). Authority from the Nation’s early years addressing the nature of a public office confirms this understanding that delegated sovereign authority is a key element. Such post-ratification materials can illuminate the original meaning of the 82 Officers of the United States Within the Meaning of the Appointments Clause Constitution where there is no evidence of a break in the law, and we are aware of none here. The Supreme Judicial Court of Maine provided the fullest early explication in 1822, addressing a question under Maine’s equivalent of the Ineligibility Clause, U.S. Const. art. I, § 6, cl. 2, which bars members of the Legislative Branch in certain cases from being appointed to a “civil Office under the Authority of the United States”: [T]he term “office” implies a delegation of a portion of the sovereign power to, and possession of it by the person filling the office;—and the exercise of such power within legal limits, constitutes the correct discharge of the duties of such office. The power thus delegated and possessed, may be a portion belonging sometimes to one of the three great departments, and sometimes to another; still it is a legal power, which may be rightfully exercised, and in its effects it will bind the rights of others . . . . Opinion of the Justices, 3 Greenl. (Me.) 481, 482 (1822). The court added that “[a]n office [is] a grant and possession of a portion of the sovereign power” and that “every ‘office,’ in the constitutional meaning of the term, implies an authority to exercise some portion of the sovereign power, either in making, executing or administering the laws.” Id. at 483. Applying this understanding, the court concluded that an agent for the preservation of timber on public lands was not a public officer because he “is to be clothed with no powers, but those of superintending the public lands, and performing certain acts in relation to them under the discretionary regulations of the governor.” Id. His duties were “not essentially different from” those of the “state printer, or a contractor to build a state house, or a state prison.” Id. Other courts treated this early analysis as authoritative. See Bunn v. Illinois, 45 Ill. 397, 409 (1867) (“The doctrine of this opinion has not been questioned, so far as we are advised, by any court, and it commends itself to our unqualified approbation.”); Patton v. Bd. of Health, 59 P. 702, 704, 705 (Cal. 1899) (describing doctrine of Maine opinion as the one that has “been held by most courts,” and Bunn as having “very fully examined” the cases). Similarly, in Byrne’s Administrators v. Stewart’s Administrators, 3 S.C. Eq. (3 Des. Eq.) 466 (1812), the South Carolina Court of Appeals held that a solicitor was not a public officer because “he does not possess any portion of the public authority.” Id. at 478; accord In the Matter of Oaths, 20 Johns. 492, 492 (N.Y. Sup. Ct. 1823) (private attorneys do not hold an “office or public trust” under state constitution because “they perform no duties on behalf of the government; they execute no public trust”). And in Commonwealth v. Binns, 17 Serg. & Rawle 219 (Pa. 1828), the Pennsylvania Supreme Court concluded, consistent with one of the examples given in the Maine opinion, that a person who had contracted to be printer of congressional reports was not an officer. Id. at 244 (opinion of Tod, J.). A concurring opinion expressly relied on the Maine opinion in describing a public 83 Opinions of the Office of Legal Counsel in Volume 31 office as including “a delegation of a portion of the sovereign power to, and possession of it by, the person filling the office.” Id. (opinion of Smith, J.). See also United States v. Hatch, 1 Pin. 182, 190 (Wis. Terr. 1842) (explaining that the term “civil officers” in appointment provision of territory’s organic act “was intended to embrace such officers as in whom part of the sovereignty or municipal regulations, or general interests of society are vested; and that such has been the general understanding in the states, under their constitutions,” relying on the Maine opinion as quoted in Binns); United States ex rel. Boyd v. Lockwood, 1 Pin. 359, 363 (Wis. Terr. 1843) (officer has “for the time being, a portion of the sovereignty . . . to be exercised for the public benefit”). Finally, in United States v. Maurice, 26 F. Cas. 1211 (C.C.D. Va. 1823), Chief Justice Marshall concluded that the Army’s position of “agent of fortifications” was a federal office, where it essentially had the duties of contracting agent—“those of a purchasing quartermaster, commissary, and paymaster.” Id. at 1214–15. These were “important duties,” which, if the President in discharging his duty to erect fortifications did not carry out directly through a series of contracts, would be carried out for him by officers. Id. at 1214. In general, Marshall explained, “[a]n office is defined to be ‘a public charge or employment,’ and he who performs the duties of the office, is an officer.” Id. Thus, an office could be said to involve the performance of public duties. See also Eliason v. Coleman, 86 N.C. 235, 239–40 (1882) (office is “a public position to which a portion of the sovereignty of the country, either legislative, executive or judicial, attaches for the time being, and which is exercised for the benefit of the public”) (quotation marks omitted); State v. Hocker, 22 So. 721, 722–23 (Fla. 1897) (surveying law of public offices beginning with 1822 Maine decision and Maurice). Reflecting the understanding from the first hundred years of American law, including pre-Founding English law, a leading treatise summarized and defined a public office as follows: A public office is the right, authority and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government, to be exercised by him for the benefit of the public. The individual so invested is a public officer. Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers § 1, at 1–2 (1890) (footnote omitted) (“Mechem”). Mechem added that the “delegation . . . of some of the sovereign functions of government” was the “most important characteristic which distinguishes an office,” such that “[u]nless the powers conferred are of this nature, the individual is not a public officer.” Id. § 4, at 5. The “‘nature of th[e] duty,’” as “‘concerning the public,’” was the key factor. Id. § 9, at 7 (quoting Burnell, Carth. at 479). 84 Officers of the United States Within the Meaning of the Appointments Clause Mechem’s distillation of the law was quickly and widely accepted. Contemporaneous commentators concurred. See Bruce Wyman, The Principles of the Administrative Law Governing the Relations of Public Officers 163 (1903) (essentially reiterating Mechem’s definition); James L. High, A Treatise on Extraordinary Legal Remedies 581 (3d ed. 1896) (“An office, such as to properly come within the legitimate scope of an information in the nature of a quo warranto, may be defined as a public position, to which a portion of the sovereignty of the country, either legislative, executive or judicial, attaches for the time being, and which is exercised for the benefit of the public.”). So did the Judiciary Committee of the House of Representatives in 1899. The House had requested a report on whether any member had “accepted any office under the United States” and whether “the acceptance of such office under the United States ha[d] vacated the seat of the Member” under the Incompatibility Clause, which provides that “no Person holding any Office under the United States” may at the same time be a member of Congress, U.S. Const. art. I, § 6, cl. 2. The Committee extensively surveyed the definition of an “office,” particularly relying on Mechem and the 1822 Maine decision, and concluded that membership on “a commission created by law to investigate and report, but having no legislative, judicial, or executive powers,” did not constitute an office under the United States. 1 Asher C. Hinds, Hinds’ Precedents of the House of Representatives 604, 604 (1907). The Committee reasoned that a public office requires a delegation of sovereign authority, which “involves necessarily the power to (1) legislate, or (2) execute law, or (3) hear and determine judicially questions submitted.” Id. at 607. 5 The commissioners in question, by contrast, “are not to execute any standing laws which are the rules of action and the guardians of rights, nor have they the right or power to make any such law, nor can they interpret or enforce any existing law.” Id. at 608; see id. at 610 (“They neither make law, execute law affecting the rights of the people, nor perform judicial functions,” but rather are “mere advisory agents of the Congress. . . . They have no power to decide any question or bind the Government or do any act affecting the rights of a single individual citizen.”). Similarly, the Attorney General at the same time explained that, although “[t]he legal definitions of a public office have been many and various,” “[t]he idea seems to prevail that it is an employment to exercise some delegated part of the sovereign power.” 5 In addition to its conclusion regarding the mere power to investigate and report, the Committee further concluded that “mere power . . . to negotiate a treaty of peace, or on some commercial subject, and report without power to make binding on the Government, does not constitute a person an officer.” 1 Hinds’ Precedents at 607–08. This conclusion is correct, not because, as the report suggests, no delegation of sovereign power is involved in the authority to represent the federal government in foreign relations, but only to the extent that the person exercising that “mere power” does not hold a position that is continuing, as discussed below in Part II.B. As discussed in the next subpart, the delegated executive power of the federal government is broader than just the power to execute law, and Mechem did not state otherwise. 85 Opinions of the Office of Legal Counsel in Volume 31 Office—Compensation, 22 Op. Att’y Gen. 184, 187 (1898); see also Appointment—Holding of Two Offices—Commissioner of Labor, 26 Op. Att’y Gen. 247, 249 (1907) (similar, citing 1822 Maine decision). It was the same House report’s quotation of Mechem’s definition of a public office (along with the Supreme Court’s opinion in United States v. Hartwell, 73 U.S. 385 (1867)) on which then-Assistant Attorney General Rehnquist relied in 1969 in concluding that the Staff Assistant to the President did not hold an office within the meaning of the Ineligibility Clause. See Letter for Lamar Alexander, Staff Assistant to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel at 2 (Dec. 9, 1969) (“Rehnquist Letter”). Among other reasons, Rehnquist noted that the position had no specified duties. Id. at 3. Similarly, in 1971 this Office, in addressing the scope of the Appointments Clause and the related constitutional provision for the President to commission officers, explained that one of the two key “characteristic[s] of an officer of the United States in the Constitutional sense is that he must be invested ‘with some portion of the sovereign functions of the government.’” Memorandum for John W. Dean, III, Counsel to the President, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Presidential Commissions at 3 (Dec. 1, 1971) (quoting Mechem §§ 1, 2 & 4). The Supreme Court soon thereafter (joined by then-Justice Rehnquist) followed essentially the same analytical path in Buckley v. Valeo, the Court’s first treatment of the basic requirements of the Appointments Clause since Auffmordt v. Hedden, 137 U.S. 310 (1890), see Buckley, 424 U.S. at 125–26 & n.162, and its first decision finding a violation of that Clause. In concluding that the commissioners of the Federal Election Commission held offices under the United States and therefore were required to be appointed in accordance with the Appointments Clause, the Court focused on the Commission’s powers and concluded that many of those powers involved “the performance of a significant governmental duty exercised pursuant to a public law.” 424 U.S. at 141; see id. at 269–70 (White, J., concurring in part and dissenting in part) (similar); see also id. at 137–41, 143 (opinion of Court, surveying powers). Because of their invalid appointments, the commissioners were permitted to “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.” Id. at 139. The Court’s reference in Buckley (and subsequent cases) to the exercise of “significant authority,” id. at 126, does vary somewhat from the well-established historical formulation, but nothing in the Court’s opinion suggests any intention to break with the longstanding understanding of a public office or fashion a new term of art. On the contrary, the Court favorably discussed and cited several of the cases from the 1800s reflecting that understanding, some of them treating arguably insignificant positions as offices. See id. at 125–26. The Court also referred simply to the administration and enforcement of the public law, see id. at 139 (quoted 86 Officers of the United States Within the Meaning of the Appointments Clause above), 141 (same), and explained that “the term ‘Officers of the United States,’ . . . since it had first appeared in [the draft Constitution,] had been taken by all concerned to embrace all appointed officials exercising responsibility under the public laws of the Nation,” id. at 131. We therefore take the phrase “significant authority pursuant to the laws of the United States,” id. at 126, and similar phrases, see, e.g., id. at 141, to be shorthand for the full historical understanding of the essential elements of a public office; this phrase concisely conveys both the historical concept of delegated sovereign power and the second historical element discussed below—whether the position with such power is “continuing”—which was set out in Auffmordt, among much other early authority, and could be considered to bear heavily on the “significan[ce]” of the delegation. This Office previously has suggested such an understanding of Buckley. See Memorandum for Robert P. Bedell, Deputy General Counsel, Office of Management and Budget, from Ralph W. Tarr, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Executive Director of the Property Review Board at 5–6 (Apr. 1, 1983); see also United States ex rel. Stone v. Rockwell Intern. Corp., 282 F.3d 787, 805 (10th Cir. 2002) (Buckley “was clear” that its “definition of an officer of the United States should be construed in conformity with its prior Germaine and Auffmordt opinions, which the Buckley Court extensively quoted with approval.”). 2. Defining Delegated Sovereign Authority Although the particulars of what constitutes “delegated sovereign authority” will not always be beyond debate, early authorities as well as more recent court decisions and opinions of this Office provide extensive guidance illuminating the term. As a general matter, based on these authorities, one could define delegated sovereign authority as power lawfully conferred by the government to bind third parties, or the government itself, for the public benefit. As indicated from much of the discussion above, such authority primarily involves the authority to administer, execute, or interpret the law. See also Printz, 521 U.S. at 922–23 (Constitution provides that President and the officers he appoints are the ones who are “to administer the laws enacted by Congress” and “execute its laws”); Bowsher v. Synar, 478 U.S. 714, 733 (1986) (“Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of ‘execution’ of the law.”); Proposed Commission on Deregulation of International Ocean Shipping, 7 Op. O.L.C. 202, 202 (1983) (holding that positions of commissioners were not subject to the Appointments Clause where they involved “no enforcement authority or power to bind the Government”); 1 Hinds’ Precedents at 610 (1898 report concluding that certain commissioners were not officers because “[t]hey neither make law, execute law affecting the rights of the people, nor perform judicial functions”; “They have no power to decide any question or bind the Government or do any act affecting the rights of a single individual citizen”). 87 Opinions of the Office of Legal Counsel in Volume 31 For example, the public authority to arrest criminals, impose penalties, enter judgments, and seize persons or property constitutes delegated sovereign authority. The Supreme Court recognized early that a justice of the peace for the District of Columbia was an officer of the United States. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 164 (1803) (justice of peace holds an office); Wise v. Withers, 7 U.S. (3 Cranch) 331, 336 (1806) (“Deriving all his authority from the legislature and president of the United States, he certainly is not the officer of any other government,” and “his powers, as defined by law, seem partly judicial, and partly executive”). The New Hampshire Supreme Court likewise concluded early that a “constable” held an office, given his power “to arrest criminals . . . and by execution to seize either the person or property of small debtors,” Town of Meredith v. Ladd, 2 N.H. 517, 519 (1823), and the Supreme Court of the Wisconsin Territory concluded that a county probate judge held an office, having “for the time being, a portion of the sovereignty . . . to be exercised for the public benefit,” Boyd, 1 Pin. at 363; see also Payton v. New York, 445 U.S. 573, 590 n.30 (1980) (discussing arrest powers of “a peace officer” at common law) (internal quotation marks omitted). 6 Similarly included in delegated sovereign authority is power to issue regulations and authoritative legal opinions on behalf of the government, and other powers to execute the law whether considered “executive” or merely “administrative.” Thus, Buckley concluded that both the Federal Election Commission’s “primary responsibility for conducting civil litigation in the courts of the United States for vindicating public rights” and its “rulemaking, advisory opinions, and determinations of eligibility for . . . federal elective office” were authorities that rendered the members of the Commission subject to the Appointments Clause. 424 U.S. at 140; see id. at 137 (discussing agency’s “functions with respect to . . . fleshing out the statute” and its “functions necessary to ensure compliance with the statute and rules”); id. at 110–11 (explaining that the “advisory opinions” at issue 6 The same understanding appears in Ex parte Pool, 4 Va. (2 Va. Cas.) 276 (1821). All of the judges of the General Court appeared to agree that a justice of the peace exercised delegated sovereign authority, even while disagreeing about whether a state justice of the peace could, consistent with Article III of the federal Constitution, be authorized by federal law to commit certain persons to jail for trial. The dissent argued that the powers of justices of the peace “to grant warrants of arrest against persons accused of crimes or offences against the Laws of the United States, to examine, bail, or commit the accused, compel the attendance of witnesses, [and] recognize them to appear to give evidence under pain of imprisonment” made them officers under the Appointments Clause. Id. at 290– 91 (Semple, J., dissenting). The majority of the court did not dispute the relevance of these powers; instead, the majority concluded that the duties were permissible because not “regular and permanent” but rather involving “incidental and occasional matters”—thus relying on the second essential element of an office, discussed below in Part II.B. Id. at 279–80. In Shepard v. Commonwealth, 1 Serg. & Rawle 1 (Pa. 1814), the court concluded for similar reasons that a special commissioner was not an officer even though he made binding decisions for the state regarding claims to and compensation for certain lands. Id. at 9–10. 88 Officers of the United States Within the Meaning of the Appointments Clause provided a legal defense to private parties). Likewise, Joseph Story included among the “most important civil officers” those “connected with the administration of justice [and] the collection of the revenue.” 3 Story § 1530, at 387. Apart from matters commonly considered law enforcement or execution, delegated sovereign authority also includes other domestic matters authorized by law that could bind or otherwise affect the government or third parties for the public benefit. Such matters include legal authority over the contracts and “supplies . . . of the nation,” id. (persons with such authority also are among the “most important civil officers”); United States v. Tingey, 30 U.S. (5 Pet.) 115, 126 (1831) (discussing officers “for the purpose of making contracts, or for the purchase of supplies”); Appointments to the Commission on the Bicentennial of the Constitution, 8 Op. O.L.C. 200, 207 (1984) (listing as a “purely executive function[]” the “signing [of] legal instruments” on behalf of the government), and “the preparatory plans of finance,” The Federalist No. 72, at 486; authority over the granting of governmental licenses, see Leonard D. White, The Federalists: A Study in Administrative History 455 (1948), or to determine the rules for public access to or privileges regarding governmental property, see In re Corliss, 11 R.I. 638, 640–42 (1876); see also Opinion of the Justices, 3 Greenl. at 483 (contrasting the “discretionary regulations of the governor” regarding the public lands with the subordinate duties of his non-officer agent for the preservation of timber on public lands); and the authority to appoint to or remove from other governmental offices, see, e.g., State v. Kennon, 7 Ohio St. 546, 562–63 (1857) (these are “important public powers, trusts, and duties”). To take one example, a leading early case, Shelby v. Alcorn, 36 Miss. 273 (1858), concluded that a levee commissioner held an office, where the position included authority to set terms for and enter into contracts on behalf of the government for construction of levees, authority to sue to enforce those contracts, “the duties of treasurer, in which position he is entitled to receive large sums of public money,” and the ability essentially to levy taxes to fund construction. Id. at 289. His powers were “extensive and important, and such as no one could claim to exercise, except in virtue of a legislative enactment,” and “in the discharge of his proper functions, [he] exercises as clearly sovereign power as the governor, or a sheriff, or any other executive officer.” Id. at 291–92 (emphasis added). See also, e.g., Commonwealth v. Swasey, 133 Mass. 538, 541 (1882) (city physician, through his authority as an ex officio member of the board of health, has “important powers to be exercised for the safety and health of the people,” and so is an officer). At the same time, the 1822 Maine decision indicates that some functions simply involving the management of governmental property may be considered not “sovereign” but rather proprietary. See Opinion of the Justices, 3 Greenl. at 483 (“He is to be clothed with no powers, but those of superintending the public lands, and performing certain acts in relation to them under the discretionary regulations of the governor.”); cf. Springer v. Philippine Islands, 277 U.S. 189, 203 (1928) 89 Opinions of the Office of Legal Counsel in Volume 31 (describing authority to vote government-owned shares of a company’s stock as “not sovereign but proprietary in its nature,” though declining to give distinction significance in separation of powers challenge to statute); Constitutional Limits on “Contracting Out” Department of Justice Functions under OMB Circular A-76, 14 Op. O.L.C. 94, 99 (1990) (“[P]urely ministerial and internal functions, such as building security, mail operations, and physical plant maintenance, which neither affect the legal rights of third parties outside the Government nor involve the exercise of significant policymaking authority, may be performed by persons who are not federal officers or employees.”). As the Shelby case indicates, see 36 Miss. at 277, delegated sovereign authority further includes, on the one hand, authority on behalf of the government to receive and oversee the public’s funds. See also Corliss, 11 R.I. at 642 (“office” at least includes a position with authority for “the handling of public money . . . , or the care and oversight of some pecuniary interest of the government”); Commonwealth v. Evans, 74 Pa. 124, 139 (1873) (collection agent is “by authority at law, . . . entrusted with the receipt of public moneys” and chargeable with providing such moneys to the treasury); Tingey, 30 U.S. at 128 (referring to the “official duties of a receiver . . . of public moneys”). Correspondingly, it also includes authority over the disbursement of those public funds. See Maurice, 26 F. Cas. at 1214 (agents of fortifications have duty of “disbursement of the money placed in their hands,” consistent with orders of Army engineers); Tingey, 30 U.S. at 126–28 (discussing “disbursing officers” and “official duties of . . . an agent for disbursery of public moneys”); 3 Story § 1530, at 387 (civil officers have authority over the “expenditures of the nation”); Buckley, 424 U.S. at 140 (“determinations of eligibility for funds” are among duties implicating Appointments Clause). See generally Military Storekeepers, 6 Op. Att’y Gen. 4 (1853) (authority to superintend the receiving, safe-keeping, and distribution of military stores and supplies). Alexander Hamilton likewise included within the “administration of government,” which ought to be managed by properly appointed officers, “the application and disbursement of the public monies.” The Federalist No. 72, at 486–87. The President recently implemented this understanding when he avoided Appointments Clause concerns with a private corporation’s administration of a fellowship program by “instruct[ing] the head of the department to whose agency these funds are appropriated to treat the money as a grant” to the corporation. Statement by President George W. Bush Upon Signing H.R. 2474, 39 Weekly Comp. Pres. Doc. 917, 918 (July 14, 2003), reprinted in 2003 U.S.C.C.A.N. 1009. Finally, delegated sovereign authority of the federal government also encompasses functions that are not necessarily domestic and may not precisely involve the execution of the laws, but that nevertheless are within the “executive Power” that Article II of the Constitution confers, functions in which no mere private party would be authorized to engage. The most notable examples are “[t]he actual conduct of foreign negotiations, . . . the arrangement of the army and navy, [and] 90 Officers of the United States Within the Meaning of the Appointments Clause the direction of the operations of war.” The Federalist No. 72, at 486–87. The positions with authority to do these things have authority lawfully granted by the government to bind or control in some fashion the government or third parties for the public benefit. Thus, there are military offices. See U.S. Const. amend. XIV, § 3 (referring to persons who “hold any office, civil or military, under the United States”); Burnell, Carth. at 479 (“Officers are distinguished into Civil and Military, according to the Nature of their several Trusts”); West Point Cadets, 7 Op. Att’y Gen. 323, 329 (1855) (describing cadets and naval midshipmen, commissioned by President, as “persons of the class of the ‘inferior officers’ of the Constitution”); Mechem §§ 22–24, at 10 (recognizing military and naval officers as distinct from civil officers). These positions are primarily characterized by the authority to command in the Armed Forces—commanding both people and the force of the government. See Bouvier, tit. Officer (defining classes of officers, including “military officers who have command in the army” and “naval officers, who are in command in the navy”); Mechem §§ 22–23, at 10 (reiterating Bouvier’s definitions); West Point Cadets, 7 Op. Att’y Gen. at 336 (describing brevet second lieutenant as a commissioned officer, “capable by law to command his company in battle, and, a fortiori . . . capable of any duty less than that, which can by law be assigned to a second lieutenant”); People v. Duane, 121 N.Y. 367, 373 (1890) (“It is difficult to conceive of . . . a military office without the power of command, the right of promotion or the obligation to perform some duty.”); Separation of Powers, 20 Op. O.L.C. at 144 n.54 (“Even the lowest ranking military or naval officer is a potential commander of United States armed forces in combat.”). Such offices necessarily involve a delegation of authority that is implicit in and subordinate to the President’s authorities as “Commander in Chief of the Army and Navy of the United States.” U.S. Const. art. II, § 2; compare Relation of the President, 7 Op. Att’y Gen. at 465 (the President cannot relinquish his authority as Commander in Chief), with id. at 479–80 (The President “cannot be substituted in person into all the acts of . . . the officers, soldiers, and sailors of the Army and Navy,” and “the actual execution of” the “military business of the Government must, of necessity, devolve on persons subordinate to the President.”). There also are diplomatic offices. They have the delegated sovereign authority to speak and act on behalf of the United States toward or in other nations, whether executing the laws or otherwise: “Public ministers of every class, are the immediate representatives of their sovereigns,” and consuls likewise, although they “have not in strictness a diplomatic character,” are “the public agents of the nations to which they belong.” The Federalist No. 81, at 548 (Alexander Hamilton) (emphasis added); see Ambassadors and Other Public Ministers of the United States, 7 Op. Att’y Gen. 186, 190 (1855) (ambassadors and other public ministers constitute the “class of public officers who . . . [are] agents of their respective governments 91 Opinions of the Office of Legal Counsel in Volume 31 for the transaction of its diplomatic business abroad”); Appointment of Consuls, 7 Op. Att’y Gen. 242, 248 (1855) (consuls are a “class of public officers . . . appointed by their government to reside in foreign countries”); United States Judicial Authority in China, 7 Op. Att’y Gen. 495, 512 (1855) (Appointments Clause applies to subordinate diplomatic officers and consuls). For this reason, President Washington protested upon learning that a private citizen had been participating in treaty negotiations: “Who is Mr. Rosencrantz? And under what authority has he attended the councils of the Indians at Buffalo Creek? . . . No person should presume to speak to the Indians on business of a public nature except those who derive their Authority and receive their instructions from the War Office for that purpose.” 32 Writings of George Washington 116–17 (John C. Fitzpatrick ed., 1939) (quoted in White, Federalists at 33); cf. Opinion on the Powers of the Senate Respecting Diplomatic Appointments (1790), in 16 Papers of Thomas Jefferson 378, 379 (Julian P. Boyd ed., 1961) (“The transaction of business with foreign nations is Executive altogether.”). And federal law since 1799 has made it a crime for citizens to negotiate with foreign governments regarding the United States without the “authority” of the United States government. See Logan Act, 1 Stat. 613, ch. 1 (1799) (codified as amended at 18 U.S.C. § 953 (2000)). Indeed, the power of a diplomatic office is peculiarly delegated directly by the President, who makes such officers “the unquestionable representatives pro tanto of the sovereignty of the United States.” Ambassadors, 7 Op. Att’y Gen. at 211. A direct presidential delegation is particularly important when diplomatic officers carry out the “most important and solemn act of diplomatic service,” the President’s authority to “negotiate[] and sign[] a treaty.” Id. at 212; see Relation of the President to the Executive Departments, 7 Op. Att’y Gen. 453, 465 (1855) (“in certain stages of the negotiation of a treaty, anterior to and including its signature, [the President] delegates full powers to another person”); see also Act of Feb. 20, 1792, ch. 7, § 26, 1 Stat. 232, 239 (authorizing Postmaster General to “make arrangements” with foreign countries for mail receipt and delivery). Similarly, the delegated authority of consuls has included such clearly sovereign areas as “executing” the “body of laws for the protection of the rights of citizens of the United States in foreign countries.” Appointment of Consuls, 7 Op. Att’y Gen. at 267. Common powers and duties have included “administrative, and sometimes judicial, functions,” and assistance “in the collection of the public revenue” by authenticating documents, as well as various duties and rights defined by treaties and the law of nations. Id. at 248–49; see also Field v. Clark, 143 U.S. 649, 690 n.1 (1892) (discussing example of consular judicial powers). To the Founders, the proper exercise of such sovereign authority by officers abroad was critical for the security of the Nation. Not only does the Appointments Clause ensure accountability for their appointment by expressly mentioning them, U.S. Const. art. II, § 2, cl. 2; see also id. art. III, § 2, cls. 1 & 2, but the Emoluments Clause, id. art. I, § 9, 92 Officers of the United States Within the Meaning of the Appointments Clause cl. 8, was adopted with particular reference to preventing foreign corruption of such officers. See Application of the Emoluments Clause to a Member of the President’s Council on Bioethics, 29 Op. O.L.C. 55, 57–58 (2005) (“Emoluments Clause”). 7 3. Three Arguably Relevant Characteristics Having shown that the first element of an “office” for purposes of the Appointments Clause is a delegation of the sovereign authority of the federal government, and having given examples of what such sovereign authority involves, we will touch on three characteristics arguably relevant to the delegation of federal sovereign authority. We conclude that the first of these characteristics (having discretion) is not necessary to the existence of such authority, and that the other two (being a contractor and being a state officer) ordinarily do not involve the exercise of such authority. a. Discretion First, “independent discretion” is not a necessary attribute of delegated sovereign authority. Buckley is sometimes read to hold that persons who “do not wield independent discretion and [who] act only at the direction of officers” cannot themselves be considered officers. Separation of Powers, 20 Op. O.L.C. at 144; see Constitutional Limitations on Federal Government Participation in Binding Arbitration, 19 Op. O.L.C. 208, 216 (1995) (same). Neither Buckley nor early authority supports this restriction on the scope of an “office.” Buckley did rightly indicate that discretion in administering the laws typically will constitute the exercise of delegated sovereign authority, and therefore is of course relevant. See 424 U.S. at 138 (discretion to bring civil enforcement suit); id. at 140–41 (duties akin to those of regulatory agency); Freytag, 501 U.S. at 881–82 (noting that special trial judges “perform more than ministerial tasks” and exercise “significant discretion” in their tasks); cf. Mechem §§ 567–68, at 368–70 (discussing rules on ability to delegate the performance of official duties, turning on whether the duties involve judgment and discretion or instead are mechanical or ministerial). But Buckley did not say, nor does it follow, that such discretion is necessary. Indeed, as already indicated, Buckley reaffirmed prior decisions that had concluded that “a postmaster first class” and “the clerk of a district court” 7 In the context of the Ineligibility Clause, this Office has assumed, consistent with an 1895 opinion of the Attorney General and the text of the Clause, that an ambassador holds a “civil Office” subject to the Clause, while also noting arguments to the contrary based on the specific purposes of that Clause. See Nomination of Sitting Member of Congress to be Ambassador to Vietnam, 20 Op. O.L.C. 284, 285 & n.5 (1996). 93 Opinions of the Office of Legal Counsel in Volume 31 were officers of the United States. 424 U.S. at 126 (citing Myers v. United States, 272 U.S. 52 (1926), and Ex parte Hennen, 38 U.S. 225 (1839)). The Court contrasted these officers with the Federal Election Commissioners and concluded that if the former were “inferior officers of the United States within the meaning of the Appointments Clause, as they are, surely the Commissioners before us are at the very least such ‘inferior Officers’ within the meaning of that Clause.” Id. 8 More fundamentally, treating discretion as necessary for the existence of an office conflicts with the original understanding of “office,” early practice, and early precedents. The Constitution itself repeatedly refers to offices of “Trust” as a subset of offices. See U.S. Const. art. I, § 9, cl. 8 (Emoluments Clause); id. § 3, cl. 7 (judgments in cases of impeachment); id. art. II, § 1, cl. 2 (qualification for presidential electors). And an “office of trust” is “[a]n office whose duties and functions require the exercise of discretion, judgment, experience and skill.” Mechem § 16, at 9 (emphasis added); see Town of Meredith, 2 N.H. at 519 (similar). Blackstone contrasted “offices of public trust” with “ministerial offices.” 2 William Blackstone, Commentaries *36–37. Early legal dictionaries and abridgments, drawing on Burnell, similarly explained that a public officer “is not the less a publick officer, where his authority is confined to narrow limits; because it is the duty of his office, and the nature of that duty, which makes him a publick officer, and not the extent of his authority.” E.g., Jacob, tit. Office. Mechem reaffirmed this point. Mechem § 9, at 7 (quoting Burnell, Carth. at 479). Thus, a ministerial office—one that “give[s] the officer no power to judge of the matter to be done, and require[s] him to obey the mandates of a superior”—was still a public office. Bouvier at 203; see also Jacob, tit. Office (referring to ministerial offices); Charles Viner, A General Abridgment of Law and Equity 110 (2d ed. 1791) (same); Mechem § 21, at 10 (“Ministerial officers are those whose duty it is to execute the mandates, lawfully issued, of their superiors.”) (internal quotation marks omitted); id. § 657, at 441 (generally defining ministerial functions and officers). Early congresses and administrations, perhaps remembering the experiences that had led to the Declaration of Independence’s protest against British officers, confirmed this original meaning of an “office” through their jealousy of discretion, which they considered a threat to liberty in the hands of officers. Congress originally cabined the number of offices that possessed discretion, so that only the President and Cabinet officers would exercise substantial discretion, and most 8 At the same time, the Court indicated that there may be positions whose duties are “in an area 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.’” Buckley, 424 U.S. at 139; see id. at 141 (essentially same). As noted above, we have no occasion here to consider particular positions or what such duties or positions may be, apart from the historical examples we discuss of positions not involving delegated sovereign authority. See also id. at 126 n.162 (discussing distinction between officers and mere employees); Corwin, President at 91 & n.27 (same). 94 Officers of the United States Within the Meaning of the Appointments Clause officers in the early Republic performed their sovereign functions within strict and narrow limits. See White, The Federalists at 448–59. The first federal marshals, for example, “were ministerial officers,” required “‘to execute . . . all lawful precepts’ directed to them,” and their instructions “dealt normally with a particular person or persons and required a specific action to be performed at the direction of a court.” Id. at 455. Even within the early Treasury Department, where discretion in collectors of customs and the Comptroller could not be avoided, Secretary Alexander Hamilton pursued a system in which “little or nothing is left to the discretion of the officers of the revenue,” id. at 448 (internal quotation marks omitted), and any necessary discretion was lodged “high in the official ranks,” id. Thus, it was generally accepted that the “officers of the United States” included many particular officers who had authority but little if any discretion in administering the laws; these included officers such as registers of the land offices, masters and mates of revenue cutters, inspectors of customs, deputy collectors of customs, deputy postmasters, and district court clerks. See Roll of the Officers, Civil, Military, and Naval, of the United States, 1 Am. St. Papers, Misc. 260–319 (1802); Hennen, 38 U.S. at 257–58 (district court clerk); United States v. Morse, 27 F. Cas. 1 (C.C.D. Me. 1844) (No. 15,820) (Story, Circuit Justice) (inspector of customs); United States v. Barton, 24 F. Cas. 1025, 1027 (E.D. Pa. 1833) (No. 14,534) (deputy collector of customs); 3 Story § 1530, at 387 (court clerks and reporters; deputy postmasters). See also Pomeroy §§ 658–59, at 438–39 (1883 critique of spoils system objecting that “[t]he office holder sees that administration of the ministerial functions committed to him, is a thing of no comparative importance,” and referring to “the great mass of ministerial officers, whose duties are not political”). 9 If it is not necessary to the existence of delegated sovereign authority (and thus to the existence of an office) that a position include the exercise of discretion, all the more is it not necessary that a position include some sort of “independent” discretion in carrying out sovereign functions. The question for purposes of this first element is simply whether a position possesses delegated sovereign authority to act in the first instance, whether or not that act may be subject to direction or review by superior officers: “[A] delegation of a portion of the sovereign power” involves “a legal power, which may be rightfully exercised, and in its effects it will bind the rights of others, and be subject to revision and correction only according to the standing laws of the State,” in contrast with a person whose acts have no “authority and power of a public act or law” absent the “subsequent sanction” of an officer or the legislature. Opinion of the Justices, 3 Greenl. at 482; 9 The term “ministerial” may, however, be used informally in a different sense to indicate that certain duties do not involve the exercise of delegated sovereign authority. See Constitutional Limits on “Contracting Out,” 14 Op. O.L.C. at 99 (quoted above in Part II.A.2). 95 Opinions of the Office of Legal Counsel in Volume 31 see also White, Federalists at 448 (“Official acts may be either exactly prescribed or discretionary. Official authority is obviously enlarged by extension of discretionary power.”). Again, early practice reinforces this understanding: Inferior revenue officers, for example, had the delegated sovereign authority to make classification decisions, but those decisions could be subjected to two layers of appeal, the second being the Treasury Secretary himself. See id. at 455; see also, e.g., Act of May 28, 1796, ch. 37, §§ 3, 8 & 9, 1 Stat. 478, 479, 480–81. A revenue officer’s decision could, without any “subsequent sanction,” by law “bind the rights of others,” even though by law readily “subject to revision and correction” on the initiative of the taxpayer. b. Contractors Second, although it is true as a general matter that contractors do not hold an office under the United States, the reason for that (in most cases) is that they do not exercise any delegated sovereign authority. A person’s status as an independent contractor does not per se provide an exemption from the Appointments Clause; rather, a typical contractor provides goods or services instead of possessing any executive or judicial authority. (Similar considerations apply to analysis of grantees.) As the Maine Supreme Judicial Court explained, a contractor merely provides “a species of service performed under the public authority and for the public good, but not in the execution of any standing laws, which are considered as the rules of action and the guardians of rights.” Opinion of the Justices, 3 Greenl. at 482–83. That is why a contract with an agent for the preservation of timber on the public lands, like the employment of a “state printer, or a contractor to build a state house, or a state prison,” did not constitute an office. Id. at 483. See also Maurice, 26 F. Cas. at 1214 (“A man may certainly be employed under a contract, express or implied, to do an act, or perform a service, without becoming an officer.”); Bache v. Binns, 17 Serg. & Rawle 219, 220 (Pa. 1828) (printer of congressional reports “holds merely a contract . . . as printer of a newspaper, implying such trust only as is ordinarily implied in contracts for work”); id. at 221 (printer was “working for the United States government, as he would work for any other customer on contract for pay”). Similarly, the Supreme Court of the United States held, in Hall v. Wisconsin, 103 U.S. 5 (1880), that “commissioners” hired to conduct a survey were contractors rather than officeholders (and therefore were protected by the Constitution’s Contract Clause, art. I, § 10, cl. 1); the Court compared them to parties who contract “for the erection, alteration, or repair of public buildings, or to supply the officers or employees who occupy them with fuel, light, stationery, and other things necessary for the public service.” Id. at 10. The commissioners lacked any “portion of the sovereignty” or “the enforcement of municipal regulations or the control of the general interests of society.” See id. at 9. And in United States v. Germaine, 99 U.S. 508 (1878), the Court scoffed at the notion that “a law requiring the commissioner [of Pensions] to appoint a man 96 Officers of the United States Within the Meaning of the Appointments Clause to furnish each agency with fuel at a price per ton fixed by law high enough to secure the delivery of the coal” would create an office. Id. at 512; see Auffmordt v. Hedden, 137 U.S. 310, 328 (1890) (same). Many members of Congress took the same view in an early debate. Representative John Randolph proposed in 1806 a resolution providing, among other things, that “a contractor under the Government of the United States is an officer within the purview and meaning of the Constitution, and, as such, is incapable of holding a seat in this House” pursuant to the Incompatibility Clause. 15 Annals of Cong. 880 (1852) (reprinting the 1806 resolution); see generally David P. Currie, The Constitution in Congress: The Jeffersonians, 1801–1829, at 82–85 (2001) (discussing the resolution and debate). The House of Representatives overwhelmingly rejected the resolution, and many who spoke against it explained that, under the accepted definition of an “office,” a contractor was not an officer because he possessed no governmental power. As Representative Eppes observed: An extensive meaning has been given to the word “office.” . . . That all contractors are not officers, I am certain. A man, for instance, makes a contract with the Government to furnish supplies. He is certainly not an officer, according to the common and known acceptation of that word. He is, however, a contractor, and, under this resolution, excluded from a seat here. A carrier of mail approaches very near an officer. The person takes an oath, is subject to penalties, the remission of which depend on the Executive. His duties are fixed and prescribed by law. Near, however, as this species of contract approaches to an office, I do not consider that the word “office” in the Constitution can include even this species of contract. I consider the word “office” in the Constitution ought to be construed according to the usual import and meaning of that term. 15 Annals of Cong. at 883. Representative Findley likewise argued that a contractor who “furnished the public with [an] article of supply,” such as “flour for the use of the army” or “paper and quills” for the House, did not hold an office because “it was an essential attribute of office for a man to possess some power, to be exercised on behalf of the Government. Now a mere contractor receives no such power; he only enters into an engagement[] to perform certain specified duties.” Under Randolph’s view, “Every man who sold anything to the Government must . . . be considered as an officer,” which was absurd. Id. at 885. Representative Kelly also concurred: “A contractor receives no authority from Government.” Id. at 890–91; see also id. at 887 (Rep. Nelson) (persons with whom the Postmaster General contracts to carry the mail “are not officers of the United States, they are mere hirelings”); id. at 888 (Rep. Bidwell) (“To say that a contractor is an officer is giving a new signification to the words contractor or officer.”); id. at 890 (Rep. Elmer) (“Both common sense and the Constitution 97 Opinions of the Office of Legal Counsel in Volume 31 forbade considering a contract in the light of an office, and he had never before heard of it contended that they were equivalent terms.”). A related reason that contractors in most cases do not hold an office is that, to the extent they do assist the government in carrying out its sovereign functions, their actions (unlike those of the subordinate officers just discussed with regard to discretion) have no legal effect on third parties or the government absent subsequent sanction. They do not actually have delegated sovereign authority, even if they assist those who do or must comply with applicable law in carrying out the contract; rather, their advisory and other assisting actions are a kind of service. As the Maine Supreme Judicial Court explained: “An employment merely has none of these distinguishing features” of an office—namely “delegation of the sovereign power.” Rather, “[a] public agent acts only on behalf of his principal, the public, whose sanction is generally considered as necessary to give the acts performed the authority and power of a public act or law.” Opinion of the Justices, 3 Greenl. at 482. The mere authority to advise or inform is not delegated sovereign authority. See, e.g., Buckley, 424 U.S. at 138; Emoluments Clause, 29 Op. O.L.C. at 63–70. Even at the time of its broadest prior reading of the Appointments Clause, this Office recognized that “advisory, investigative, informative, or ceremonial functions” are not subject to the Clause. Legislative Encroachments, 13 Op. O.L.C. at 249. More recently, we explained that the President may, without creating any issue under the Appointments Clause, “tap advisers . . . to work on his behalf,” grant them substantial practical authority to develop and coordinate policy among federal agencies, and even formalize the arrangement in an executive order, so long as he does not purport to grant such advisers any “legal power” over an agency or otherwise “disturb the statutory allocation of authorities.” Centralizing Border Control Policy Under the Supervision of the Attorney General, 26 Op. O.L.C. 22, 26, 27 (2002) (emphasis added). Conversely, in those rare cases where a mere contractor did exercise delegated sovereign authority (and did so on a continuing basis), he did hold an office subject to the Appointments Clause. See Maurice, 26 F. Cas. at 1216–20; cf. Holdover and Removal of Members of Amtrak’s Reform Board, 27 Op. O.L.C. 163, 166–68 (2003) (holding that, as an incident of his statutory power to appoint the board members of a federally created corporation, the President had power to remove them at will, notwithstanding statutory provision that the corporation was not a department, agency, or instrumentality of the government). As the Attorney General explained nearly ninety years ago, “the inquiry must always be into the nature of the service to be rendered. If the appointee himself performs any of the functions of government, he is an officer. If he merely renders assistance to another in the performance of those functions, he is an employee.” Employee’s Compensation Act, 31 Op. Att’y Gen. 201, 203–04 (1918). 98 Officers of the United States Within the Meaning of the Appointments Clause c. State Officers Finally, state officers ordinarily do not possess delegated sovereign authority of the federal government, even when they assist in the administration of federal law. Thus, the Appointments Clause ordinarily does not apply to them. State officers, even when enforcing federal law, generally exercise the sovereign law enforcement authority of their state, ultimately delegated by the people of that state; if they hold any office, they are officers of their state or locality, not of the United States. They hold authority independently of a delegation from the federal government, and they and those who appoint them are accountable for their actions to the people of the state. States and their officers stand in a unique relationship with the federal government and the people under our constitutional system of dual sovereignty. As the Tenth Amendment makes express, the Framers “designed a system in which the State and Federal Governments would exercise concurrent authority over the people.” Printz, 521 U.S. at 919–20; see U.S. Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 801 (1995) (“The ‘plan of the convention’ . . . draws a basic distinction between the powers of the newly created Federal Government and the powers retained by the pre-existing sovereign States.”). The states thus retain inherent sovereign authority within their jurisdictions, and their powers proceed “not from the people of America, but from the people of the several States; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument.” Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 193 (1819); accord The Federalist No. 32, at 200 (Hamilton) (“[T]he State Governments would clearly retain all the rights of sovereignty which they before had and which were not by [the Constitution] exclusively delegated to the United States.”). Recognizing this concurrent authority, the Constitution binds state officers, along with federal ones, to swear to support the Constitution. U.S. Const. art. VI, cl. 3. That retained power includes, if a state wishes, some authority to enforce federal law within the state’s jurisdiction, subject to any limits imposed by the Constitution (apart from the Appointments Clause) or by federal law. See generally Currie, Jeffersonians at 78 (“the Union may do only what the Constitution permits and the states may do whatever it does not forbid,” although “there are implicit constitutional limitations on state power to interfere with federal operations”); cf. supra note 1. Indeed, the Founders assumed that “the States would consent to allowing their officials to assist the Federal Government.” Printz, 521 U.S. at 911. Madison, for example, predicted that “the eventual collection [of internal revenue] under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States,” and found it “extremely 99 Opinions of the Office of Legal Counsel in Volume 31 probable that in other instances, particularly in the organisation of the judicial power, the officers of the States will be cloathed with the correspondent authority of the Union.” The Federalist No. 45, at 313; see Printz, 521 U.S. at 910 (cataloguing other such statements). The early federal government did indeed make provision for such action by state officials. See, e.g., Act of March 26, 1790, § 1, ch. 3, 1 Stat. 103 (state judicial officers’ duties involving naturalization); Act of June 18, 1798, §§ 2, 4, ch. 54, 1 Stat. 566, 567–68 (same); Act of April 14, 1802, § 1, ch. 28, 2 Stat. 153, 153–54 (same); Act of July 20, 1790, ch. 29, 1 Stat. 131 (proceedings involving merchant ships); Act of Apr. 7, 1798, ch. 26, 1 Stat. 547 (proceedings involving land claims by refugees); Act of July 6, 1798, ch. 66, 1 Stat. 577, 577–78 (proceedings involving claims against aliens). And in Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820), the Court upheld Pennsylvania’s power to try a militiaman under federal criminal law for failing to report for federal service. Similarly, this Office has found it “well-settled that state law enforcement officers are permitted to enforce federal statutes where such enforcement activities do not impair federal regulatory interests.” Assistance by State and Local Police in Apprehending Illegal Aliens, 20 Op. O.L.C. 26, 29 (1996); see also United States v. Di Re, 332 U.S. 581, 589 (1948) (looking to state law to determine validity of arrest without warrant for federal offense); cf. Separation of Powers, 20 Op. O.L.C. at 146 n.63 (“Where state officials do exercise significant authority under or with respect to federal law, they do so as state officials, by the decision and under the ultimate authority of the state.”). 10 B. The Position Must Be “Continuing” The second element of a federal “office,” necessary to make a position subject to the Appointments Clause, is that the position be “continuing.” As explained below, a position is most clearly of this sort where it is permanent. But a temporary position also may be continuing, if it is not personal, “transient,” or “incidental.” Like the first element, this second one emerges from the Constitution’s text, extensive early authority (including, after the Civil War, leading decisions of the Supreme Court), and the law of public offices. After setting out the authority for this element, we describe its contours and then apply it to a few recurring areas. 10 If, however, a state officer enforcing federal law depended on affirmative federal authorization— as opposed to state authorization (subject to any federal limits or regulations) or a mere federal removal of a disability (such as preemption)—the constitutional analysis would differ, as suggested by the divisions in the early case of Pool discussed above. See supra note 6. At the extreme, Congress may not “direct state law enforcement officers to participate . . . in the administration of a federally enacted regulatory scheme,” Printz, 521 U.S. at 904 (emphasis added), or “impress[] state police officers into federal service,” id. at 923 n.12, in part because of the Appointments Clause, id. at 922–23. 100 Officers of the United States Within the Meaning of the Appointments Clause 1. The Foundations of This Element The Constitution refers to an office as something that one “holds” and “enjoys” and in which one “continues,” and these descriptions suggest that an office has some duration and ongoing duties. See, e.g., U.S. Const. art. I, § 3, cl. 7 (impeachment leading to “disqualification to hold and enjoy any Office”); art. I, § 6, cl. 2 (Incompatibility Clause, referring to a “Person holding any Office” and having a “Continuance in Office”); art. I, § 9, cl. 8 (Emoluments Clause, referring to a “Person holding any Office”); art. II, § 1, cl. 2 (providing that no “Person holding an Office . . . shall be appointed an Elector”). Similarly, the Recess Appointments Clause suggests that an office is a position that may be vacant (thus not held only by a single person) and will continue beyond a single session of Congress. See id. art. II, § 2, cl. 3 (“The President shall have Power to fill up all Vacancies that may happen during the recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”). And the Appointments Clause itself indicates that most offices are “established by Law.” Id. cl. 2 (emphasis added). One aspect of an office’s duration is its tenure, the period during which a particular incumbent may hold, enjoy, and continue in the office, and the tenure also establishes that the existence of the office is not contingent on a particular person’s holding it. The Constitution expressly mentions permanent, non-personal offices that may be held for a term, such as President or Vice President, see id. art. II, § 1, and others that may be held during good behavior, namely judgeships, see id. art. III, § 1. Madison during ratification listed three possible tenures: He referred to “persons holding their offices during pleasure, for a limited period, or during good behavior.” The Federalist No. 39, at 251; see also Rehnquist Letter at 3 (“The analysis does not rest simply on the fact that the incumbent lacks fixed tenure; such is true of Cabinet members . . . . But the position itself, as a position and apart from the particular incumbent, has no fixed duration.”). 11 11 The permissibility under the Appointments Clause of assigning a person to carry out the duties of an office temporarily (on an acting basis) is distinct from, albeit related to, whether an office exists. The former question can be understood as whether, if an office exists, a person exercising its duties truly “holds” it. See United States v. Eaton, 169 U.S. 331, 343 (1898) (upholding designation of vice consul to act as consul: “Because the subordinate officer is charged with the performance of the duty of the superior for a limited time and under special and temporary conditions, he is not thereby transformed into the superior and permanent official”) (emphases added); U.S. Const. art. II, § 1, cl. 6 (providing that in cases of removal, death, resignation, or inability of the President, “the Powers and Duties of the said Office . . . shall devolve on the Vice President,” and authorizing Congress by law to declare, for cases of removal, death, resignation, or inability of both the President and Vice President, “what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected”) (emphases added), amended by id. amend. XXV (providing that in cases of removal, death, or resignation of the President, the Vice President “shall become 101 Opinions of the Office of Legal Counsel in Volume 31 The same meaning of an “office” finds support in the legal dictionaries contemporaneous with the Founding. They distinguished between short-term arrangements, such as an “agreement to make hay, plough land, herd a flock, &c.,” and continuing positions, such as “steward of a manor,” that qualified as public or private offices. Jacob, tit. Office; see Cunningham, tit. Office (same). Even the early case of Burnell suggests the distinction, in the defendant’s attempt to portray his position as not an office because it merely involved “particular Powers created for particular Purposes.” Carth. at 479. By the time of the Founding, an “office” was understood in the common law “as an institution distinct from the person holding it and capable of persisting beyond his incumbency,” to which “certain frequently recurrent and naturally coherent duties [were] assigned more or less permanently.” Corwin, President at 85. Early American practice and precedent, particularly with regard to diplomacy (the conduct of which, as explained above in Part II.A.2, can include delegated sovereign authority), strongly support and illuminate this understanding that, to be an office, a position must have continuance or duration. From the beginning, Presidents repeatedly have “dispatched ‘secret’ agents on diplomatic or semidiplomatic missions without nominating them to the Senate.” Corwin, President at 86. One of President Washington’s first acts was unilaterally to name Gouverneur Morris (a fellow delegate to the Constitutional Convention) as a special agent to explore a commercial treaty with Britain. David P. Currie, The Constitution in Congress: The Federalist Period: 1789–1801, at 44 (1997). Washington also unilaterally named “commissioners” to deal with a rebellion in Pennsylvania in 1794 without appointing them officers. See Corwin, President at 406 n.7. So too have Presidents as far back as Washington “designated members of . . . [Congress] to represent the United States on international commissions and at diplomatic conferences,” id. at 86, notwithstanding that the Constitution’s Ineligibility Clause may have barred the members’ appointment to a “civil Office under the Authority of the United States” and that the Incompatibility Clause would have required them to vacate their seats in Congress if they took “any Office under the United States.” U.S. Const. art. I, § 6, cl. 2; see, e.g., Member of Congress—Appointment to Office, 21 Op. Att’y Gen. 211, 214 (1895) (finding violation of Ineligibility Clause in appointment of senator, because during his senatorial term “the emoluments of the office of minister to Mexico were increased”). In a striking early illustration, President Jefferson appointed Senator Daniel Smith as a commissioner to negotiate and execute treaties with the Cherokee Indians, yet Jefferson did not submit the nomination to the Senate, and Smith did not vacate his seat in the Senate. See 1 Am. St. Papers, Indian Affairs 697–98 (1805). Absent contemporaPresident” but that in cases of inability the Vice President shall discharge the powers and duties of the office of President “as Acting President”). 102 Officers of the United States Within the Meaning of the Appointments Clause neous objections on constitutional grounds to such early and consistent practice, we presume that it reflects an early consensus of its constitutionality. The rationale for this consensus, evident from the early understanding of an “office,” is that “such diplomatic assignments are not ‘offices’ in the sense of the Constitution, being summoned into existence only for specific temporary purposes.” Corwin, President at 86 (emphasis added). Indeed, a House select committee in 1822 found no “office as was contemplated by the Constitution” in President Jefferson’s dispatching of Senator Smith, also noting a similar example from Madison’s administration. 39 Annals of Cong. 1407, 1409–10 (1855); see also Office— Compensation, 22 Op. Att’y Gen. 184, 188–89 (1898) (noting other appointments for “special work of great international importance”). The most prominent early example is the Jay Treaty of 1794. It established tribunals for resolving both a border dispute and claims between creditors and merchants of the United States and Great Britain. The tribunals’ commissioners were to be appointed in equal numbers by the President (with the advice and consent of the Senate) and the British King, with a final commissioner chosen by lot. See Treaty of Amity, Commerce and Navigation, U.S.-Gr. Brit., Nov. 19, 1794, arts. V & VI, 8 Stat. 116, 119–21 (1794); see also 1 Journal of the Executive Proceedings of the Senate 204–05 (Apr. 1, 1796) (1828) (confirmation of commissioners). The treaty’s opponents, perhaps spurred by its requirement of Senate confirmation, objected that the Appointments Clause prohibited creation of commissioners by treaty. Hamilton responded in a series of essays defending the treaty: [They] are not in a strict sense OFFICERS. They are arbitrators between the two Countries. Though in the Constitutions, both of the U States and of most of the Individual states, a particular mode of appointing officers is designated, yet in practice it has not been deemed a violation of the provision to appoint Commissioners or special Agents for special purposes in a different mode. Alexander Hamilton, The Defence No. 37 (Jan. 6, 1796), reprinted in 20 The Papers of Alexander Hamilton 13, 20 (Harold C. Syrett ed., 1974) (second emphasis added); see Separation of Powers, 20 Op. O.L.C. at 146 n.67 (quoting this passage as primary example of the “long historical pedigree” for the argument that United States representatives to multinational or international entities “need not be appointed in accordance with Article II” where the entities “are created on an ad hoc or temporary basis”). 12 12 The objection, as stated by Hamilton, was that “[t]he constitution is said to be violated in that part, which requires the establishment of Officers of the U. States by law—by those stipulations of the Treaty which without the intervention of law provide for the appointment of Commissioners.” 20 103 Opinions of the Office of Legal Counsel in Volume 31 A century later, Attorney General Griggs twice applied the same understanding of an office to “special Agents for special purposes.” In 1898, he opined that a commissioner appointed by the President pursuant to a treaty, to arbitrate certain claims between the United States and Great Britain arising from the seizure of British vessels in the Bering Sea, did not hold an “office” under a particular statute, because “the temporary character of the employment, which was to consist of and to terminate at the end of the examination of a limited number of specified claims, withdraws one of the elements of an office which the Supreme Court regards as essential.” Office—Compensation, 22 Op. Att’y Gen. at 188 (citing Auffmordt, 137 U.S. at 327) (emphases added); see id. at 187 (commissioner is “sent to adjudicate upon certain named claims, listed at the end of the treaty,” and his “employment was thus to perform a certain task which might take a month or several months”); id. at 188 (referring to “occasional and temporary commissionerships”). Then in Members of the General Board of Arbitration, 23 Op. Att’y Gen. 313 (1900), the Attorney General reaffirmed his 1898 opinion and found it constitutional for the President alone to appoint, pursuant to a treaty, persons to a list from which panels of arbitrators could be drawn to resolve future disputes between signatory nations. (Attorney General Griggs was himself one of the first so named, in 1901.) Those on the list would not be “in the ordinary acceptation of the term, persons holding office,” because they would have no ongoing duties or authority: “Nominally they may be appointed for six years, but they may never actually exercise any functions at all. Their work is not only occasional, but contingent upon what is practically an appointment to act as arbitrators, to be received from foreign powers in the future.” Id. at 315. 13 Cf. British and American Papers of Alexander Hamilton at 14; see Cato, Observations on Mr. Jay’s Treaty No. XIII, in 1 The American Remembrancer 244, 250–51 (1795) (arguing that offices not enumerated in Appointments Clause may only be established by law, which did not include treaty; adding, “By what authority, then, can Mr. Jay and Lord Grenville, or the president and the senate, over-ride the constitution, and assume a power to control the rights of congress, to create the office, and to place it in such hands as they think proper, under the above limitations?”); id. No. XIV, in 2 The American Remembrancer 3, 3 (1795) (“No power is vested in [Congress] to allow the appointment of any officer by lot, and much less to admit that his Britannic majesty should exercise the right of appointing judges for the trial of causes in which they are themselves to be the parties.”). Hamilton answered the objection indirectly—by denying that any offices were being created. An 1802 “Roll of Civil, Military, and Naval Officers,” tracking expenses, includes the salaries of the American commissioners, “as they were appointed by the President,” and also includes the U.S. contribution of half the salary of the jointly appointed commissioner, but notes that the “commission is not now in a state of activity.” 1 Am. St. Papers, Misc. at 307 n.*. 13 An alternative ground for Griggs’s 1900 conclusion was that the listed arbitrators, even if called to serve, “are not expected to exercise any part of the sovereignty of the United States; they are not expected to perform any functions in the Government of the United States.” Rather, they would serve “two foreign nations that may select them and authorize them to settle a dispute between two nations.” Members of the General Board of Arbitration, 23 Op. Att’y Gen. at 315; cf. Office—Compensation, 22 Op. Att’y Gen. at 188 (“a person employed solely as a sworn judge of a joint international commission would not be spoken of as an officer of either country, although, under a treaty requiring it, selected 104 Officers of the United States Within the Meaning of the Appointments Clause International Commissioners, 6 Op. Att’y Gen. 65 (1853) (addressing questions regarding payment of commissioners appointed to arbitrate claims between Great Britain and American citizens pursuant to a treaty, without suggesting any constitutional issues). This second element of an “office” is also well established by the early law of public offices. In Maurice, Chief Justice Marshall concluded that the office of “agent of fortifications” existed in the Army. He explained that “if a duty be a continuing one” and “if those duties continue, though the person be changed; it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer.” 26 F. Cas. at 1214. Forty years later, the Illinois Supreme Court in Bunn used Maurice as the benchmark and reasoned that Marshall would have found no office if the agent had “been appointed merely to superintend the erection of a single fortification, his duties ceasing when the work was accomplished”; the court found no office in a position—commissioner to build the state house—involving “one single special duty,” “not of a permanent, but of a transient and incidental character.” 45 Ill. at 404–05. Similarly, the court in Pool, see supra note 6, essentially held that a state justice of the peace, allowed by federal law to commit to jail for trial any deserting seaman, was not a judicial officer of the United States, because he was not exercising the “regular and permanent duties” of a federal court but rather handling “incidental and occasional matters,” 2 Va. Cas. at 280; the dissent claimed a violation of the Appointments Clause by focusing only on delegated authority, quoting Burnell and objecting that the “important duties” of enforcing federal criminal laws should not be entrusted to “mere agents,” or “persons negotiating occasional business.” Id. at 288 (Semple, J., dissenting). Earlier, the Supreme Court of Pennsylvania in Shepard v. Commonwealth, 1 Serg. & Rawle 1 (Pa. 1814), held (in the alternative) that a commissioner, paid by the day for issuing binding decisions regarding certain claims to, and compensation for, certain lands in a particular county, did not hold an office of profit under the state constitution, because the position was “rather the execution of a special commission, than the holding of an office.” Id. at 10. The same court also held that a person appointed as a city’s port physician, a post with a statutory duration of four years, did not hold an office subject to the state constitution’s appointments and sent to his post by one of them”). In both decisions, Griggs also addressed the relationship between the treaty power and the Appointments Clause, the question that Hamilton had avoided. See 22 Op. Att’y. Gen. at 185–87; 23 Op. Att’y Gen. at 315. But whether it is constitutional for a treaty, as opposed to a law, to establish an office under the United States or, conversely, whether a position created by treaty is not such an office because not created by law (even if otherwise having the characteristics of such an office), or may not be for some other reason, is beyond the scope of this opinion. See generally infra Part II.C.2 (discussing creation of offices “by law”). In both cases, it was otherwise clear that the positions did not have the characteristics of offices of the United States. 105 Opinions of the Office of Legal Counsel in Volume 31 clause. Commonwealth v. Sutherland, 3 Serg. & Rawle 145 (Pa. 1817). The Chief Justice explained that “there are matters of temporary and local concern, which, although comprehended in the term office, have not been thought to be embraced by the constitution.” Id. at 9. Other early cases are to like effect. See In re Oaths, 20 Johns. 492, 493 (N.Y. 1823) (dicta, stating that “office” requires a public employment “not merely transient, occasional or incidental”); Kennon, 7 Ohio St. at 559, 562 (declining to decide “[h]ow far the general assembly may go in constituting temporary agencies and commissions for temporary, incidental, transient, or occasional purposes” without “creating an office,” where positions at issue “exercise continuously, and as a part of the regular and permanent administration of the government, important public powers, trusts, and duties”); Shelby, 36 Miss. at 289 (declaring it “universally true, that where an employment or duty is a continuing one, which is defined by rules prescribed by law and not by contract, such a charge or employment is an office”); cf. Barton, 24 F. Cas. at 1027 (contrasting positions of temporary deputy collector, appointed by collector in cases of his “occasional and necessary absence, or [] sickness,” and the “permanent office” of deputy collector, appointed by Secretary of the Treasury); Boyd, 1 Pin. at 363 (“An office is where, for the time being, a portion of the sovereignty, legislative, executive or judicial, attaches, to be exercised for the public benefit.”) (emphasis added). The Attorneys General as well held the same understanding in the domestic context from an early date. An 1828 opinion concluded that a statute granting the Commandant of the Marine Corps authority to appoint officers when “it shall become necessary” did not violate the Appointments Clause so long as it was interpreted to permit only “an occasional and transitory appointment” in emergency circumstances “should [the Marines] be detached from the ships to which they belonged.” Authority of Lieutenant Colonel Commandant of Marine Corps, 2 Op. Att’y Gen. 77, 78–79 (1828). In 1843, Attorney General Legare determined that “permanent inspectors” of customs were “officers of the government of the United States,” required to be appointed consistent with the Appointments Clause, while “occasional inspectors whose services were demanded in extraordinary exigencies in the service” were not. Appointment and Removal of Inspectors of Customs, 4 Op. Att’y Gen. at 163; see also Contract With Architect of Public Buildings, 5 Op. Att’y Gen. 754, 754–55 (1823) (appendix) (contrasting “offices of a permanent nature” with a position involving a “subject-matter . . . of a temporary and limited character,” properly characterized as a contract); The Reconstruction Acts, 12 Op. Att’y Gen. 141, 155–56 (1867) (relying on Sutherland and invoking the “well established” rule that “persons who exercise special public duties rather in the nature of occasional employments than general and continuing official duty” are not properly considered executive or judicial officers of a state); cf. Mandatory Statutes—Appointing Power, 8 Op. Att’y Gen. 41, 44 (1856) (“I can conceive the possibility of a provision of law by which a controversy between the Government 106 Officers of the United States Within the Meaning of the Appointments Clause and the city of Baltimore shall be submitted to two arbitrators, one to be appointed by each party, and in case of disagreement, they to select an umpire.”). And the 1822 House report, noted above in connection with diplomatic assignments, was ultimately concerned with whether the temporary assignment of a senator to “examine various land offices of the United States” (that is, to audit their books), for which he was paid by the day, made him an officer under the Ineligibility and Incompatibility Clauses. The committee concluded that it did not. 39 Annals of Cong. at 1408–10; see also id. at 1410–13 (collecting additional examples). The committee observed that this “opinion seems to have received the sanction, and regulated the practice, of the Government since the adoption of the Constitution, by those who bore a principal share in composing it; and must, therefore, be supposed to have understood its real import.” Id. at 1409. In a series of cases after the Civil War, the Supreme Court adhered to and applied this longstanding understanding. In Hartwell (1868), the Court held that “a clerk” in the office of the “assistant treasurer of the United States . . . at Boston” was a “public officer[]” for purposes of an indictment under an embezzlement statute. The Court explained: An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties. The employment of the defendant was in the public service of the United States. He was appointed pursuant to law, and his compensation was fixed by law. Vacating the office of his superior would not have affected the tenure of his place. His duties were continuing and permanent, not occasional or temporary. They were to be such as his superior in office should prescribe. 73 U.S. (6 Wall.) at 393. Hartwell considers, among other things, whether a position’s duties have “duration,” meaning that they are “continuing and permanent” rather than “occasional or temporary,” and whether the position has “tenure.” The term “tenure” refers to the ability of an incumbent to hold a position for a period of time, not contingent on any particular person, as Madison indicated in Federalist No. 39, quoted above. See also Hennen, 38 U.S. at 259 (“All offices, the tenure of which is not fixed by the Constitution, or limited by law, must be held either during good behavior, or . . . during the life of the incumbent; or must be held at the will and discretion of some department.”); Tenure of Office of Inspectors of Customs, 2 Op. Att’y Gen. 410, 412 (1831) (“When an office is held during the pleasure of any designated officer, it is at the pleasure of the officer, and not of the individual.”). The Attorney General has explained the connection between “tenure” and this second element of an “office” as follows: “By tenure is not meant a holding for a fixed term. . . . The distinction is between those persons 107 Opinions of the Office of Legal Counsel in Volume 31 whose services are occasional and temporary, fixed by some contract of employment, and those whose services are general and indefinite in a line of duty prescribed by law. . . . A deputy clerk has an indefinite tenure given him by law.” Deputy Clerks of United States District Courts—Premium on Official Bonds, 29 Op. Att’y Gen. 593, 595–96 (1912). The Court applied Hartwell in Germaine (1879) to hold unanimously that a civil surgeon appointed by the Commissioner of Pensions to examine pensioners and applicants for pensions, and paid per examination, was not an “officer of the United States” for purposes of a criminal statute because his “duties are not continuing and permanent, and they are occasional and intermittent.” 99 U.S. at 512. The Court explained that “[t]he surgeon is only to act when called on by the Commissioner of Pensions in some special case, as when some pensioner or claimant of a pension presents himself for examination.” Id. 14 In Auffmordt (1890), the Court applied these two statutory decisions to the Appointments Clause, while also relying on Maurice. Under a customs statute, if an importer demanded a reappraisal of the valuation of his goods, the collector of customs was to select a “discreet and experienced merchant” as at least one of two people to do the reappraisal. If the two agreed, the decision was final. 137 U.S. at 312. The Court, again unanimously, held that such merchant appraiser need not be appointed in accordance with the Appointments Clause, because he did not hold an office: The merchant appraiser is an expert, selected as an emergency arises. . . . He is selected for the special case. He has no general functions, nor any employment which has any duration as to time, or which extends over any case further than as he is selected to act in that particular case. He is an executive agent, as an expert assistant to aid in ascertaining the value of the goods, selected for the particular case on the request of the importer, and selected for his special knowledge in regard to the character and value of the particular goods in question. He has no claim or right to be designated, or to act except as he may be designated. . . . His position is without tenure, 14 President Cleveland in 1886 demonstrated the same understanding of an office when recommending to Congress a means to resolve labor disputes. He suggested that “instead of arbitrators chosen in the heat of conflicting claims, and after each dispute shall arise, for the purpose of determining the same, there be created a commission of labor, consisting of three members, who shall be regular officers of the Government, charged among other duties with the consideration and settlement, when possible, of all controversies between labor and capital.” Letter to the Senate and House of Representatives (Apr. 22, 1886), in 11 A Compilation of the Messages and Papers of the Presidents 4979, 4980 (James D. Richardson ed., 1897) (emphases added). This commission “would have the advantage of being a stable body,” gaining experience and ability, unlike “arbitrators . . . chosen for temporary service.” Id. at 4980, 4981. 108 Officers of the United States Within the Meaning of the Appointments Clause duration, continuing emolument, or continuous duties, and he acts only occasionally and temporarily. Therefore, he is not an ‘officer,’ within the meaning of the [Appointments Clause]. Id. at 326–27 (emphases added). As already suggested above in Part II.A.1, although the question of continuance was not at issue, the Court in Buckley did favorably cite Auffmordt and thus at least implicitly endorsed its analysis, such that one can consider the element of continuance incorporated in the Court’s references to “significant authority.” See 424 U.S. at 126 & n.162. In the same year as Auffmordt, Mechem (discussed above in Part II.A.1 regarding delegated sovereign authority) also recognized this element. Relying particularly on Maurice, Bunn, and Hartwell, he wrote that “[d]uration or [c]ontinuance” is a criterion, Mechem § 8, at 6 (font altered), and explained that “[t]he term office . . . embraces the idea of tenure and duration, and certainly a position which is merely temporary and local cannot ordinarily be considered an office,” id.; see id. at 6–7 n.7 & 7 n.1; see also id. § 1, at 2 (an office is sovereign power invested in an individual “for a given period, either fixed by law or enduring at the pleasure of the creating power”). Mechem nevertheless declared that “this element of continuance can not be considered as indispensable . . . if the other elements are present,” id. § 8, at 7, relying primarily on a broad definition of “office” in dicta in State v. Stanley, 66 N.C. 59, 63 (1872). He also cited Commonwealth v. Evans, 74 Pa. 124 (1874), in which the court adopted a broad rule of statutory interpretation to reach all persons entrusted by law with collecting money due to the public, regardless of whether a person’s service “be special or general, transient or permanent,” even while recognizing that, under such a rule, it could be “a difficult matter to distinguish between a public officer and a person employed by the government to perform some special service by contract.” Id. at 139. 15 Other authority from the post-Civil War period likewise could be read to reject the necessity of continuance. First, both the Attorney General and the Supreme Court of Rhode Island concluded that a commissioner of the United States Centennial Commission held an office under the Constitution. The unpaid commission, appointed by the President, had been created by Congress in 1871 and was to continue “until the close of” the 1876 centennial exhibition. See In re Corliss, 11 R.I. 638, 640, 642 (1876). The Attorney General, briefly addressing the Emoluments Clause, “entertain[ed] no doubt that, though their duties are of a 15 Mechem also cited Vaughn v. English, 8 Cal. 39 (1857). Although the court did not expressly mention the need for continuance, it also did not (unlike Stanley and Evans) disclaim it, and the position at issue (clerk in a department of the state) appears to have had continuous, indefinite duties with a clearly defined tenure. See id. at 42; see also id. at 41 (argument of prevailing party). Vaughn merely established that an office could have its tenure defined by reference to that of a superior office. See Patton v. Bd. of Health, 59 P. 702, 705 (Cal. 1899). 109 Opinions of the Office of Legal Counsel in Volume 31 special and temporary character, they may properly be called officers of the United States during the continuance of their official functions.” Offices of Trust, 15 Op. Att’y Gen. 187, 188 (1877) (emphasis added). He reasoned that “[t]he Government being interested in the performance of the[ir] duties, they constitute a public charge or office.” Id. The court in Corliss answered the question under the disqualification rules for presidential electors. See U.S. Const. art. II, § 1, cl. 2. The court likewise pointed to the importance of the high-profile international exhibition, and noted that the commission received a federal appropriation (to be repaid from any profits) and the charge of some federal property. See 11 R.I. at 641–43. As far as we have determined, neither Corliss nor the Attorney General’s opinion has been called into question on this issue. See 1 Hinds’ Precedents at 609 (1898 report endorsing holding of Corliss). Second, it was the uniform view of the federal courts in this period that a receiver of an insolvent national bank, appointed (ultimately) by the Secretary of the Treasury, was an officer for purposes of a statute authorizing certain suits in federal court by “the United States or any officer thereof.” Platt v. Beach, 19 F. Cas. 836, 840 (E.D.N.Y. 1868); Stanton v. Wilkeson, 22 F. Cas. 1074, 1075 (S.D.N.Y. 1876); Frelinghuysen v. Baldwin, 12 F. 395, 396–97 (D.N.J. 1882); Price v. Abbott, 17 F. 506, 507–08 (C.C.D. Mass. 1883) (Gray, Circuit Justice); United States v. Weitzel, 246 U.S. 533, 541 (1918). A receiver had statutory authority to bring suit, through a U.S. Attorney and under the direction of the Solicitor of the Treasury, “to take possession of all the property, books, and records of the bank, and to collect all debts due to it”; “upon [a court] order . . . to sell or compound bad or doubtful debts, and to sell all the . . . property of the bank”; and to hold the bank’s stockholders liable if necessary to pay the bank’s debts. See Price, 17 F. at 507; Platt, 19 F. Cas. at 841. In the first such case, Platt, the district court did not respond to the defendant’s argument from Maurice and Shelby that the position of a receiver was “occasional or transitory, depending upon fluctuations and exigencies,” appointed to “perform a specific duty,” upon the completion of which “his agency or service ceases,” id. at 837; see id. (“there is no office of receiver of national banks established by law”); id. at 840 (an office requires a “continuing” duty). The plaintiff had responded that a receiver “comes within every word of [Maurice’s] definition. His duties continue . . . and they would continue though the person of the receiver should be changed.” Id. at 839. Stanton was the only case to address the question of continuance. Judge Blatchford (later the author of Auffmordt) summarized Hartwell and simply stated: “A receiver of a national bank is in the public service of the United States. He is 110 Officers of the United States Within the Meaning of the Appointments Clause appointed pursuant to law. Vacation of office by the comptroller does not vacate the receivership. His duties are continuing and permanent.” 22 F. Cas. at 1075. 16 We believe it incorrect to treat the element of “continuance” as dispensible, given the constitutional text, the extensive practice and precedent (including Maurice) before the Civil War, and the Supreme Court’s authoritative opinions in Germaine and Auffmordt. The Attorney General was correct in 1907 when he affirmed that “the idea runs through all the cases that in order to constitute an office the employment must be continuing and not temporary,” relying particularly on Maurice, his 1898 opinion on the Bering Sea commission, and Germaine. Appointment—Holding of Two Offices—Commissioner of Labor, 26 Op. Att’y Gen. 247, 249 (1907). The Supreme Court of Mississippi was likewise correct in Shelby in 1858 when, relying particularly on Maurice, it “apprehend[ed] that it may be stated as universally true, that where an employment or duty is a continuing one, which is defined by rules prescribed by law and not by contract, such a charge or employment is an office.” 36 Miss. at 289. Yet “continuance” is not “permanence”; no case of which we are aware before the Civil War indicates that permanence is required, and the post-Civil War authority just discussed is best read as simply confirming that some temporary, non-personal positions may amount to offices. As Mechem himself put it, “certainly a position which is merely temporary and local cannot ordinarily be considered an office.” Mechem § 8, at 6 (emphases added). 2. Defining a “Continuing” Position No definition of “office” can be expected to harmonize all of the precedent or answer all cases that may arise. (Thus, our discussions of early authority should not be understood as necessarily endorsing every holding.) But the following two general rules encompass and harmonize most of them, particularly the earliest ones, with regard to the element of continuance or duration: First, an office exists where a position that possesses delegated sovereign authority is permanent, meaning that it is not limited by time or by being of such a nature that it will terminate “by the very fact of performance.” Bunn, 45 Ill. at 405. This rule is particularly laid out in the early Kennon case, which found an office to exist because the defendants were “to exercise continuously, and as a part of the regular 16 Cf. Ex parte Siebold, 100 U.S. 371, 397–98 (1879) (holding that Appointments Clause was not violated when Congress authorized courts of law, rather than President or head of a department, to appoint election supervisors for a particular local election; not discussing question of continuance or citing Germaine or other cases); In re Hathaway, 71 N.Y. 238, 244 (1877) (court divided 4-3 in holding that person appointed as surrogate for a particular probate case was not a public officer under state constitution, because he performed “transient, occasional or incidental duties” for “special exigencies,” having “no general powers . . . to act in respect to all like cases”). 111 Opinions of the Office of Legal Counsel in Volume 31 and permanent administration of the government, important public powers, trusts, and duties.” 7 Ohio St. at 562–63; see also Sheboygan v. Parker, 70 U.S. 93, 96 (1865) (applying this formulation); Patton v. Bd. of Health, 59 P. 702, 706 (Cal. 1899) (after survey, providing similar summary of the “reasonably well settled” rule for positions with “continuing and permanent” duties). The “continuing” duties and powers to which these cases refer should not, however, be understood as necessarily involving continuous activity, as shown in Kennon itself, which involved a standing power to appoint to and remove from specified offices. See 7 Ohio St. at 557. Similarly, a federal judge holds a permanent position even if he has a lull in his docket. His “services are general and indefinite in a line of duty,” Deputy Clerks, 29 Op. Att’y Gen. at 596, and he has “general functions” and a “claim or right to be designated, or to act” should a case arise, Auffmordt, 137 U.S. at 327. Second, if a position that possesses delegated sovereign authority is temporary (because of, for example, an express expiration date or the nature of its duties), then whether it qualifies as “continuing,” and thus an office, will depend on the presence of three factors that the early authorities discuss in connection with temporariness. The line will not always be bright, as Kennon recognized in declining to say “[h]ow far the general assembly may go in constituting temporary agencies and commissioners for temporary, incidental, transient, or occasional purposes . . . without thereby creating an office,” 7 Ohio St. at 559 (emphasis added); but it can be discerned. (1) The position’s existence should not be personal: The duties should “continue, though the person be changed,” Maurice, 26 F. Cas. at 1214, and an incumbent’s tenure should not depend on whether “the office of his superior” is vacated, Hartwell, 73 U.S. at 393; see also Tenure of Office, 2 Op. Att’y Gen. at 412; Corwin, President at 85. (2) The position should not be “transient”: The less fleeting and more enduring it is (or is likely to be), the more likely it is to be a continuing seat of power and thus an office. (3) The duties should be more than “incidental” to the regular operations of government. Although these last two factors escape precise definition, and the last of them does not directly bear on a temporal aspect, they nevertheless appear throughout the early authority—in Pool, In re Oaths, and Kennon, for example; and they capture other authority employing similar terms—such as special work; special purposes; a special, specific, single, or particular controversy or case; a special commission; specified claims; local or limited work; and extraordinary or emergency exigencies. See, e.g., Auffmordt, 137 U.S. at 326–27; Germaine, 99 U.S. at 512; Inspector of Customs, 4 Op. Att’y Gen. at 163; Marine Corps, 2 Op. Att’y Gen. at 78– 79; Hamilton, The Defence No. 37, in 20 Papers of Alexander Hamilton at 20; see also Eliason, 86 N.C. at 241 (“The true test of a public office seems to be that it is parcel of the administration of government.”); Corwin, President at 85 (an “office” at common law was an “institution” to which “certain frequently recurrent and naturally coherent duties [were] assigned more or less permanently”). Thus, the 112 Officers of the United States Within the Meaning of the Appointments Clause nature of the delegated sovereign authority will affect whether a temporary position is an office, even though a person holding a permanent position “is not the less a publick Officer where his Authority is confined to narrow Limits.” Burnell, Carth. at 479; see also Shelby, 36 Miss. at 277 (similar). One reason for considering whether a position is “incidental” is to ensure against evasion of the Appointments Clause: For example, the position of Attorney General presumably still would be an office if Congress provided for it to expire each year but reauthorized it annually. 3. A Few Recurring Areas The element of continuance provides an additional reason why a typical contractor does not, and need not, hold an office for purposes of the Appointments Clause. Maurice focused on continuance in explaining the distinction between an office and a contract (even while recognizing that one might contract to carry out an office). See 26 F. Cas. at 1214–15. Hartwell explained that a “government contract . . . from its nature is necessarily limited in its duration and specific in its objects,” unlike a government office. 73 U.S. at 393. And the Court held in Hall, discussed above in Part II.A.3, that certain persons did not hold offices because they were analogous to “parties who, pursuant to law, enter into stipulations limited in point of time, with a State, for the erection, alteration, or repair of public buildings, or to supply the officers or employees who occupy them with fuel, light, stationery, and other things necessary for the public service.” 103 U.S. at 10 (emphasis added). Similarly, Attorney General Wirt determined that “an engagement with a gentleman of the bar, whereby, for a valuable consideration, he is to render his professional services in a given case, is a contract, a bargain, an agreement, in the legal sense of these terms,” not an appointment to an office, and therefore was covered by a statute barring contracts between members of Congress and federal officers. Contracts With Members of Congress, 2 Op. Att’y Gen. 38, 40 (1826) (emphases altered); see id. (referring to contracts “for the service of a lawyer, a physician, or a mail carrier, an army purveyor, or a turnpike road maker”). He also interpreted the “office” of architect of the public buildings to be a contractual position rather than an office, where the architect had been hired to complete “specified work” of “a temporary and limited character,” rather than to occupy a position “of a permanent nature.” Contract With Architect, 5 Op. Att’y Gen. at 754, 756; see id. at 755–56 (recognizing the frequency of annual contracts). Finally, as discussed above in Part II.A.3, the House of Representatives in 1806 resoundingly rejected the claim that a contractor held an office within the meaning of the Incompatibility Clause. Mail carriers provided a recurring example of contractors, see 15 Annals of Cong. at 880, 883, 885, 887, 890, and contracts to carry the mail were limited to one year, see White, Federalists at 182; see also 15 Annals of Cong. at 882 (statement of Rep. Randolph, in favor of resolution, that “a 113 Opinions of the Office of Legal Counsel in Volume 31 contractor is an officer pro tempore—it is not an office in perpetuity, but created for a time, and for a particular purpose”). The element of continuance also justifies our previous conclusion that authorizing a private plaintiff to bring a qui tam suit on behalf of the United States under the False Claims Act, see 31 U.S.C. § 3730 (2000), does not violate the Appointments Clause, because a qui tam relator does not hold an office. Our current reasoning does, however, differ some from that previously given, under which it was sufficient that the relator was not employed by the federal government. See Separation of Powers, 20 Op. O.L.C. at 146 & n.65. A qui tam relator does at least present a question under the Appointments Clause, see Vt. Agency of Natural Res. v. United States, 529 U.S. 765, 778 n.8 (2000) (raising and reserving the question), because Congress has allowed him essentially to appoint himself to act as a civil prosecutor for the United States in a case. But such an “appointment” is a temporary and personal one, likely involving only occasional duties, and extending only to a single case; and the relator’s authority even over that case is confined in certain ways. See id. at 769–70, 772–73; see also United States ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787, 805 (10th Cir. 2002) (finding no Appointments Clause violation, where relators “are not subject to the requirement . . . that the definition of an officer ‘embraces the ideas of tenure, duration, emolument, and duties, and the latter were continuing and permanent, not occasional or temporary’”) (quoting Germaine, 99 U.S. at 511–12, citing Auffmordt, 137 U.S. at 327, and concluding that Buckley must be “construed in conformity” with them). In this respect, the qui tam relator is similar to the contractors discussed above; and thus, whatever the relevance of his “appointing” himself (in contrast to a person who contracts with the government), the distinction does not pose a problem under the Appointments Clause. For similar reasons, we reaffirm our prior conclusion (but not all of its reasoning) that the federal government’s participation in binding arbitration ordinarily does not raise an Appointments Clause problem. See, e.g., Separation of Powers, 20 Op. O.L.C. at 148–49; see also supra note 14 (discussing dispute-resolution proposal by President Cleveland). At the same time, the element of continuance, properly understood, also explains why an “independent counsel” under the Ethics in Government Act of 1978, 28 U.S.C. §§ 591–599 (1982 ed., Supp V), undoubtedly was an officer, even though the position was, by the nature of its duties, temporary and largely casespecific. The Court in Morrison v. Olson, 487 U.S. 654 (1988), thought it “clear that appellant is an ‘officer’ of the United States, not an ‘employee,’” citing Buckley’s discussion of this distinction based on Auffmordt and Germaine. Id. at 671 n.12. Justice Scalia in dissent agreed, adding that none of the parties disputed this, the only question being whether the counsel was a principal or inferior officer. Id. at 715. Although the position of a particular independent counsel was temporary, the position was non-personal; it was not “transient,” but rather 114 Officers of the United States Within the Meaning of the Appointments Clause indefinite and expected to last for multiple years, with ongoing duties, the hiring of a staff, and termination only by an affirmative determination that all matters within the counsel’s jurisdiction were at least substantially complete; and it was not “incidental,” but rather possessed core and largely unchecked federal prosecutorial powers, effectively displacing the Attorney General and the Justice Department within the counsel’s court-defined jurisdiction, which was not necessarily limited to the specific matter that had prompted his appointment. See id. at 660–64 (opinion of Court), 667–68, 671; id. at 718 (Scalia, J., dissenting). C. Several Additional Criteria Are Incidental, Not Distinct Elements of an Office Courts and others have sometimes discussed several additional criteria, beyond the two elements of delegated sovereign authority and continuance detailed above, as relevant to whether a position is a public office and when an individual is an officer. We discuss five of these, explaining that they are incidents that commonly follow from the existence of a properly constituted office, not essential elements of an office. They may provide evidence of whether an office exists under the two essential elements, but, depending on the circumstances, an office subject to the Appointments Clause may exist without them. 1. Method of Appointment First, courts sometimes have considered a person’s status as an officer by reference to his method of appointment. The Supreme Court has considered an individual’s appointment pursuant to the procedures of the Clause in determining that he was an “officer” for certain statutory purposes. For example, the Court in Wise v. Withers, 7 U.S. (3 Cranch) 331 (1806), held that a justice of the peace was an officer under a militia-exemption statute given that he was appointed by the President: “Under the sanction of a law, he is appointed, by the president. . . . We know not by what terms an officer can be defined, which would not embrace this description of persons.” Id. at 336. In Hartwell, one reason the Court held that a Treasury clerk was an officer of the United States under an embezzlement statute was that he “was appointed by the head of a department within the meaning of the constitutional provision upon the subject of the appointing power.” 73 U.S. at 393–94. The statutory cases on receivers of national banks discussed above in Part II.B.1 employed some of the same reasoning. Conversely, courts also have concluded that an individual who is not appointed in accordance with the Appointments Clause is not technically an “Officer of the United States.” Maurice concluded that an agent not appointed in accordance with the Appointments Clause was “not legally an officer” (even though he had carried out the duties of a duly constituted office). 26 F. Cas. at 1216. In United States v. Smith, 124 U.S. 525 (1888), the Court held that a clerk in the office of a collector of customs was 115 Opinions of the Office of Legal Counsel in Volume 31 not a “public officer” under an embezzlement statute because he was not appointed consistent with the Clause: “An officer of the United States can only be appointed by the President, by and with the advice and consent of the Senate, or by a court of law, or the head of a department. A person in the service of the government who does not derive his position from one of these sources is not an officer of the United States in the sense of the constitution.” Id. at 531–32; see also Germaine, 99 U.S. at 509–10 (similar); Burnap v. United States, 252 U.S. 512, 516 (1920) (“Whether the incumbent is an officer or an employee is determined by the manner in which Congress has specifically provided for the creation of the several positions, their duties and appointment thereto.”). It is true that an individual not properly appointed under the Appointments Clause cannot technically be an officer of the United States: “Unless a person in the service of the Government, therefore, holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of Departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States.” United States v. Mouat, 124 U.S. 303, 307 (1888) (emphasis added). But such a person may nevertheless be required to be appointed as prescribed by the Clause in order constitutionally to exercise his authority. A contrary conclusion would render the Appointments Clause a matter of etiquette or protocol, see Buckley, 424 U.S. at 125, rather than one of the “significant structural safeguards of the constitutional scheme,” Edmond, 520 U.S. at 659. See supra Part I; cf. Kennon, 7 Ohio St. at 557–58 (“The official or unofficial character of the defendants is to be determined, not by their name, nor by the presence or absence of an official designation, but by the nature of the functions devolved upon them.”). Under such a (tautological) reading, the Clause would require a certain means of appointment only for persons appointed by that means. As early as Maurice it was recognized that a person might in fact perform the duties of an office under the United States and yet have been unconstitutionally appointed to it. This truth also is recognized in the common law doctrine of de facto officers, by which the acts of a person not properly appointed to office might nevertheless be held valid. See Mechem § 26, at 10 (summarizing doctrine); id. §§ 315–345, at 211 et seq. (chapter concerning “officers de facto”); see also Inspectors of Customs, 4 Op. Att’y Gen. at 165 (apparently assuming applicability of doctrine in event of constitutional challenge to appointment); Ryder v. United States, 515 U.S. 177, 180–84 (1995) (discussing doctrine but declining to apply it in a “timely challenge to the constitutional validity of the appointment of an officer who adjudicate[d]” a court-martial). At the same time, the Appointments Clause does not prevent Congress from treating a position that is not, in the constitutional sense, an office under the United States as nevertheless subject to statutory restrictions on offices or officers. See Corwin, President at 91 (noting that Congress often has done this); Steele v. United States, 267 U.S. 505, 506–08 (1925) (in dicta, construing statutory reference to “a civil officer” as not limited to 116 Officers of the United States Within the Meaning of the Appointments Clause “an officer in the constitutional sense” and including a general prohibition agent appointed by the Commissioner of Internal Revenue and a deputy marshal appointed by a marshal); see also supra Part II.B.1 (discussing Senate-confirmed commissioners under Jay Treaty); cf. Employee’s Compensation Act—Assistant United States Attorney, 31 Op. Att’y Gen. 201, 202–04 (1918) (recognizing that Congress might provide for appointment to position by President or head of department even though position was not an office, in which case one must analyze duties to determine position’s nature). 2. Established by Law Second, other authorities have stated that an office is created by law. This statement, like the proposition that a person must be appointed consistent with the Appointments Clause to be an officer, is true in one sense, and “law” can be highly relevant to whether an office exists, but the statement also can confuse the analysis if not properly understood. The Appointments Clause does provide that offices not recognized by the Constitution itself “shall be established by Law,” thus lodging in Congress ultimate authority over the creation of most offices. U.S. Const. art. II, § 2, cl. 2; see Maurice, 26 F. Cas. at 1213–14; Limitations on Presidential Power to Create a New Executive Branch Entity to Receive and Administer Funds Under Foreign Aid Legislation, 9 Op. O.L.C. 76, 77–78 (1985). 17 The Ineligibility Clause reinforces this view, by providing that “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time,” thereby contemplating that Congress will authorize offices, and reducing the incentive for members of Congress to do so in hopes of being appointed to them. U.S. Const. art. I, § 6 (emphasis added). Thus, an office subject to the Appointments Clause will ordinarily be a position that has been “established by Law”—by or under authority of a statute. But the rule for which sorts of positions have been “established by Law” such that they amount to offices subject to the Appointments Clause cannot be whether a position was formally and directly created as an “office” by law. Such a view would conflict with the substantive requirements of the Appointments Clause. Congress could not evade the Appointments Clause by, for example, the artifice of authorizing a contract for the supervision of the Justice Department, on the ground that no “office” of Attorney General would be created by law—even 17 The President has authority to appoint to diplomatic offices without an authorizing act of Congress, because the Constitution itself expressly recognizes such offices under the law of nations. See, e.g., Ambassadors, 7 Op. Att’y Gen. at 192–93; Nomination of Sitting Member of Congress to be Ambassador to Vietnam, 20 Op. O.L.C. 284, 286–92 (1996). Regarding the time at which such an office is considered created, see id. at 292–93. 117 Opinions of the Office of Legal Counsel in Volume 31 where the statutory authorization for the contract were to delegate sovereign authority and establish the continuance of the contractual position. Cf. Maurice, 26 F. Cas. at 1214, 1219 (recognizing that the government might enter into “a contract to perform the duties of” a properly established office, but that such a contract would be an “irregular” appointment that would violate the Appointments Clause). Conversely, a contract or other mere employment “may be created by law,” Mechem § 5, at 5, and governmental contracts long have been highly regulated, see, e.g., Validity of Executive Order Prohibiting Government Contractors From Discriminating in Employment Practices on Grounds of Race, Color, Religion, or National Origin, 42 Op. Att’y Gen. 97, 98–103 (1961) (collecting examples). Contracts do not, simply because created or regulated by law, create an office. Thus, whether an office has been established by law does not turn on whether Congress has formally created an “office” by law, but rather on whether the two necessary elements of an office discussed above in Parts II.A and II.B are present “by law.” The Constitution requires an examination of “the nature of the functions devolved upon” a position by legal authority, Kennon, 7 Ohio St. at 558, not the way or form in which they are devolved. Any position that is an office in the constitutional sense under the two elements we have described, and has not been created ultra vires, will have been created by law in some fashion, regardless of how labeled. It necessarily follows that “the fact that the powers in question are created and conferred by law, is an important criterion,” and that an office “finds its source and limitations in some act or expression of the governmental power.” Mechem § 5, at 5 (emphasis added); see id. § 1, at 1 (powers of an office are “created and conferred by law”). To be subject to the Appointments Clause, a position must include some continuing legal authority, as opposed to simply existing to assist someone who does have legal authority or having duties defined and existing only at the whim of its superior: There must be some sort of “line of duty prescribed by law,” Deputy Clerks, 29 Op. Att’y Gen. at 595–96, and power “defined by rules prescribed by law,” Shelby, 36 Miss. at 289. As Buckley and many other authorities thus recognize, the source of any such authority, and particularly any statutory delineation by Congress, will unavoidably help to determine whether an office exists. See, e.g., Buckley, 424 U.S. at 131, 141 (referring, respectively, to “responsibility under the public laws” and duties “exercised pursuant to a public law”); Freytag, 501 U.S. at 881 (noting that duties of a special trial judge were “specified by statute,” and contrasting special masters, hired “on a temporary, episodic basis, whose positions are not established by law, and whose duties and functions are not delineated in a statute”); id. at 901 (opinion of Scalia, J.) (agreeing with this analysis); Applicability of Appointment Provisions of the Anti-Drug Abuse Act of 1988 to Incumbent Officeholders, 12 Op. O.L.C. 286, 288 n.5 (1988) (noting that Congress had by statute authorized Attorney General to create subordinate offices, which he had done by order); Maurice, 26 F. 118 Officers of the United States Within the Meaning of the Appointments Clause Cas. at 1213–15 (concluding that, at least for purposes of a suit to enforce a purported officeholder’s bond, the office of agent of fortifications had been created by congressionally approved and authorized Army regulations); Barton, 24 F. Cas. at 1027 (explaining background rule that, where no law specifies otherwise, a deputy has “the same powers and duties” as his principal); Mechem § 570, at 373 (same); Ambassadors and Other Public Ministers, 7 Op. Att’y Gen. at 193, 196– 97, 202, 212 (discussing sources of authority of diplomatic offices, even though not created by statute). As Mechem put it: “The authority of a public officer in any given case consists of those powers which are expressly conferred upon him by the act appointing him, or which are expressly annexed to the office by the law creating it or some other law referring to it, or which are attached to the office by common law as incidents to it.” Mechem § 507, at 332. 3. Oath of Office Third, although “[p]ublic officers are usually required by law to take the oath of office,” doing so “is not an indispensable criterion and the office may exist without it, for . . . the oath is a mere incident and constitutes no part of the office.” Mechem § 6, at 6; see also Oath of Clerks in Executive Departments, 12 Op. Att’y Gen. 521, 521–22 (1868) (similar). Article VI, Clause 3, of the Constitution requires that “all executive and judicial Officers, both of the United States and of the several States” take an oath or affirmation to support the Constitution. Only after separately knowing whether an office exists could one apply this requirement. Burnell demonstrates this, as the applicability of an oath requirement turned on whether the Censor of the College of Physicians held an office. See Carth. at 478; see also Opinion of the Justices, 3 Greenl. (Me.) at 483 (similar). Similar reasoning applies to a bond, which is “usually required” of officers “to whom are entrusted the collection and custody of public money, and public ministerial officers whose actions may affect the rights and interests of individuals.” Mechem § 263, at 165; see id. §§ 253–254, at 162 (oath and bond requirements are common for persons appointed to a public office); see also 1 Hinds’ Precedents at 608 (1898 report, concluding that certain commissioners were not officers, in part because “they give no bond and take no oath”). 4. Emoluments Fourth, an emolument is also a common characteristic of an office, as Hartwell indicates, 73 U.S. at 393, but it too is not essential: “Like the requirement of an oath,” provision for pay “may aid in determining the nature of the position, but it is not conclusive. . . . As in the case of the oath, the salary or fees are mere incidents and form no part of the office.” Mechem § 7, at 6; see id. at 6 n.3 (“it is not a sine qua non”); Kennon, 7 Ohio St. at 559 (“That compensation or emolument is a usual incident to office, is well known; but that it is a necessary element 119 Opinions of the Office of Legal Counsel in Volume 31 in the constitution of an office, is not true.”). Confirming this, the law of public offices recognized offices of profit, “to which salary, compensation or fees are attached,” Mechem § 13, at 8, and offices of honor, “to which no compensation attaches,” id. § 15, at 9. See also Emoluments Clause, 29 Op. O.L.C. at 61 (discussing offices of profit). The Constitution recognizes both types of offices. See, e.g., U.S. Const. art. I, § 3, cl. 7 (punishment for impeachment may include “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States”). In addition, it separately creates the office of President, id. art. II, § 1, cl. 1, and provides for its compensation, id. cl. 7. If Presidents were to serve without pay, as Benjamin Franklin had proposed, see James Madison, Notes of Debates in the Federal Convention of 1787, at 51–55 (June 2, 1787) (1987), they would no less hold an office. Furthermore, any understanding of an “office” that would require an “emolument” akin to the compensation that a person on the regular payroll of the federal government receives would conflict with the original meaning of the Appointments Clause as revealed by earliest practice. In the first decade under the Constitution, most federal officers, particularly those outside the capital, received no compensation from the government, much less a regular one. Instead, they received authority to collect fees: By far the larger number of federal officials were compensated by fees for services rendered. Nearly the whole of the field service was paid on this basis, including the collectors, naval officers, and surveyors; the supervisors and inspectors of revenue; the attorneys and marshals; the deputy postmasters; and the consuls. . . . Officials were compensated if there was a demand for their services; otherwise the government expended nothing. They were paid on the spot, by those whom the law required to deal with them. There was no problem of collection—the self-interest of the official was sufficient. Public posting of the schedule of fees and stern laws against taking excessive amounts were relied upon to protect the public. English precedent and contemporary convenience spread the system far and wide. White, Federalists at 298. To take one example, many consuls were compensated through the following schedule of fees: two dollars from a U.S. citizen for authenticating a protest, declaration, or deposition; five percent of a citizen’s estate for taking it into possession and settling it; twenty-five cents for administering oaths and affirmations; and a dollar for certifying the delivery of merchandise. See 1 Am. St. Papers, Misc. at 307. Officials so compensated were no less officers of the United States. At the same time, where a temporary position does include emoluments provided by the government, the nature of the pay may provide some evidence of whether the position is an office under the factors discussed in Part II.B.2. In cases holding that temporary positions were not offices, courts have 120 Officers of the United States Within the Meaning of the Appointments Clause remarked that the pay provided was per diem or otherwise based on the amount of work done, rather than involving a salary. See, e.g., Bunn, 45 Ill. at 409; Germaine, 99 U.S. at 512; see also Shepherd v. Commonwealth, 1 Serg. & Rawle 1 (Pa. 1814) (commissioner regarding land claims, paid by the day); 39 Annals of Cong. at 1408–10 (examiner of land offices, paid by the day). Recognizing the various kinds of emoluments that may attach to an office, and the incidental nature of having any emolument, demonstrates the error of some of our prior opinions in concluding that the Appointments Clause does not apply to persons who are not employees of the federal government, even if they are delegated permanent federal authority to enforce federal law. See, e.g., Separation of Powers, 20 Op. O.L.C. at 145–48. The primary cases on which we relied for this view—Maurice, Hartwell, Germaine, and Auffmordt, all discussed above—do not resolve this question, and to the extent they speak to it do not clearly point in the direction that our prior opinions took. Only Auffmordt directly confronted the requirements of the Appointments Clause, but its holding does not turn on whether a person is an employee (as opposed to the nature of his duties), nor did the Court hold or state that a private actor cannot be an officer, which would have been at odds with Maurice’s recognition that a contractor might hold a position in violation of the Appointments Clause. In addition, the general language of these cases allows for an office that does not involve government employment in the modern sense. Maurice, for example, said that an office is “a public charge or employment,” 26 F. Cas. at 1214 (internal quotation marks omitted; emphasis added), and Hartwell defined an office as “a public station, or employment,” 73 U.S. at 393 (emphasis added). Maurice, among others, also does state that an “office is ‘an employment,’” 26 F. Cas. at 1214, but such a statement must be read in a contemporaneous rather than anachronistic sense, broadly to include anyone engaged by the government, whether an independent contractor, “employee,” or other agent. The pertinent definition of “employ” is: To engage in one’s service; to use as an agent or substitute in transacting business; to commission and entrust with the management of one’s affairs. The president employed an envoy to negotiate a treaty. Kings and States employ ambassadors at foreign courts. Noah Webster, An American Dictionary of the English Language, tit. Employ (1828). Thus, even an “agreement” to provide services (such as “to make hay” or “plough land”) was an “employment.” Jacob, tit. Office; Cunningham, tit. Office. As detailed above regarding contractors (see supra Parts II.A.3.b & II.B.3) and the creation of offices “by law” (see supra Part II.C.2), what matters is the nature of a position—its authority and continuance—not its label, and thus not whether Congress placed it within the federal service. Our prior analysis, notwithstanding its conclusion, went far toward acknowledging this when it recognized the 121 Opinions of the Office of Legal Counsel in Volume 31 relevance to Appointments Clause analysis of Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995), in which the Court held that the First Amendment applied to a federally created corporation notwithstanding a statute providing that the corporation was not a department, agency, or instrumentality of the government. See Separation of Powers, 20 Op. O.L.C. at 147–48 & n.70. 18 5. Commission Finally, although the holder of an office usually receives a commission, that characteristic too, like an oath or pay, is incidental rather than essential. See Mechem § 12, at 8. The Constitution, in Article II, Section 3, requires that the President “shall Commission all the Officers of the United States.” As with the oath requirement, as well as the recognition that offices are created by law, one must know who the officers are before being able to apply this provision. That a person has a commission may no doubt provide evidence that he holds an office. See, e.g., 15 Annals of Cong. at 888–89 (“There is a Constitutional definition of the word officer in the third section of the second article of the Constitution, which provides that the President ‘shall commission all the officers of the United States.’ Here then is a Constitutional definition of what is meant by a person holding an office, viz., a person commissioned by the President.”) (Rep. Bidwell). But it does not follow that a person not commissioned does not hold an office, or, conversely, that only officers have commissions. III. Conclusion For all of these reasons, we conclude that an individual who will occupy a position to which has been delegated by legal authority a portion of the sovereign powers of the federal government, and which is “continuing,” must be appointed pursuant to the Appointments clause. Conversely, a position that does not satisfy one of these two elements need not be filled pursuant to that Clause. STEVEN G. BRADBURY Acting Assistant Attorney General Office of Legal Counsel 18 Similarly, whether for constitutional purposes a person within the federal government is a mere “employee” or rather holds an office subject to the Appointments Clause will turn on the applicability of the two essential elements we have set out. See generally Buckley, 424 U.S. at 126 n.162. 122

Write a legal research memo on the following topic.

Officers of the United States Within the Meaning of the Appointments Clause A position to which is delegated by legal authority a portion of the sovereign powers of the federal government and that is “continuing” is a federal office subject to the Constitution’s Appointments Clause. A person who would hold such a position must be properly made an “Officer[] of the United States” by being appointed pursuant to the procedures specified in the Appointments Clause. April 16, 2007 MEMORANDUM OPINION FOR THE GENERAL COUNSELS OF THE EXECUTIVE BRANCH I. The Safeguards of the Appointments Clause ..................................................... 74 II. The Essential Elements of an Office Subject to the Appointments Clause ...... 76 A. The Position Must Possess Delegated Sovereign Authority of the Federal Government .................................................................................. 78 1. The Foundations of This Element ....................................................... 78 2. Defining Delegated Sovereign Authority............................................ 87 3. Three Arguably Relevant Characteristics ........................................... 93 a. Discretion ..................................................................................... 93 b. Contractors................................................................................... 96 c. State Officers ............................................................................... 99 B. The Position Must Be “Continuing” ........................................................ 100 1. The Foundations of This Element ..................................................... 101 2. Defining a “Continuing” Position ..................................................... 111 3. A Few Recurring Areas .................................................................... 113 C. Several Additional Criteria Are Incidental, Not Distinct Elements of an Office .................................................................................................. 115 1. Method of Appointment .................................................................... 115 2. Established by Law ........................................................................... 117 3. Oath of Office ................................................................................... 119 4. Emoluments ...................................................................................... 119 5. Commission ...................................................................................... 122 III. Conclusion .................................................................................................... 122 This memorandum addresses the requirements of the Appointments Clause of the Constitution, which sets out the exclusive methods of appointing all “Officers of the United States” whose appointments are not otherwise provided for in the Constitution. U.S. Const. art. II, § 2, cl. 2. In particular, we address which positions are required by that Clause to be filled pursuant to its procedures. We conclude that any position having the two essential characteristics of a federal “office” is subject to the Appointments Clause. That is, a position, however labeled, is in 73 Opinions of the Office of Legal Counsel in Volume 31 fact a federal office if (1) it is invested by legal authority with a portion of the sovereign powers of the federal government, and (2) it is “continuing.” A person who would hold such a position must be properly made an “Officer[] of the United States” by being appointed pursuant to the procedures specified in the Appointments Clause. I. The Safeguards of the Appointments Clause The Appointments Clause provides: [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Id. The Appointments Clause, as the Supreme Court has explained, reflects more than a “frivolous” concern for “etiquette or protocol.” Buckley v. Valeo, 424 U.S. 1, 125 (1976) (per curiam). Rather, the Clause limits the exercise of certain kinds of governmental power to those persons appointed pursuant to the specific procedures it sets forth for the appointment of “officers.” As the Supreme Court explained in Buckley: 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,” is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an “Officer of the United States,” and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article. Id. at 125–26 (citation omitted; quoting United States v. Germaine, 99 U.S. 508, 510 (1879)); see also id. at 132 (“Unless their selection is elsewhere provided for, all officers of the United States are to be appointed in accordance with the Clause. . . . No class or type of officer is excluded because of its special functions.”); id. at 136 (noting that prior cases allowing restrictions on President’s removal power had been careful not to suggest that his appointment power could be infringed). Applying this understanding, the Court in Buckley unanimously held that the Appointments Clause required that the enforcement, regulatory, and other administrative powers of the Federal Election Commission could properly “be exercised only by ‘Officers of the United States,’ appointed in conformity with” 74 Officers of the United States Within the Meaning of the Appointments Clause the Clause. Id. at 143; see id. at 267 (White, J., concurring in part and dissenting in part) (agreeing). Because the members of the Commission had not been so appointed, the Commission could not constitutionally exercise these powers. Id. at 141–43 (opinion of Court); see also id. at 126–27 (describing existing appointment procedure). This Office also has long taken the same view of the force of the Appointments Clause. We have concluded, for example, that it is not “within Congress’s power to exempt federal instrumentalities from the Constitution’s structural requirements, such as the Appointments Clause”; that Congress may not, for example, resort to the corporate form as an “artifice” to “evade the ‘solemn obligations’ of the doctrine of separation of powers,” The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 148 n.70 (1996) (“Separation of Powers”); and that the “methods of appointment” the Appointments Clause specifies “are exclusive,” Common Legislative Encroachments on Executive Branch Authority, 13 Op. O.L.C. 248, 249 (1989) (“Legislative Encroachments”). Indeed, the Court’s conclusion in Buckley that the methods of appointment in the Appointments Clause are exclusive for anyone who can be said to hold an office under the United States was anticipated by a line of Attorney General opinions dating back to well before the Civil War. See, e.g., Appointment and Removal of Inspectors of Customs, 4 Op. Att’y Gen. 162, 164 (1843); see also Civil Service Comm’n, 13 Op. Att’y Gen. 516, 518 (1871) (Appointments Clause “must be construed as excluding all other modes of appointment” of executive and judicial officers). Moreover, the text of the Appointments Clause emphatically applies to “all” officers of the United States, unless their method of appointment is “otherwise provided for” in the Constitution. The requirements of the Appointments Clause are “among the significant structural safeguards of the constitutional scheme” and are “designed to preserve political accountability relative to important government assignments.” Edmond v. United States, 520 U.S. 651, 659, 663 (1997). The Clause “is a bulwark against one branch aggrandizing its power at the expense of another branch,” particularly by preventing Congress from taking to itself the appointment power, as was at issue in Buckley, or otherwise stripping that power from the other Branches. Ryder v. United States, 515 U.S. 177, 182 (1995). By vesting the selection of principal officers in the President and of inferior officers in the President or certain other officers of the Executive or Judicial Branches, the Clause “prevents congressional encroachment upon” those branches, Edmond, 520 U.S. at 659, and supports the President’s authority and duty to see to the execution of the laws, Printz v. United States, 521 U.S. 898, 922–23 (1997). But the Appointments Clause “is more: it preserves another aspect of the Constitution’s structural integrity by preventing the diffusion of the appointment power.” Ryder, 515 U.S. at 182 (internal quotation marks omitted). Thus, in Ryder the Court held invalid a military court’s affirmance of a conviction where, even though the court had been appointed by an Executive 75 Opinions of the Office of Legal Counsel in Volume 31 Branch officer, the appointing official was not among those specified in the Appointments Clause. Id. at 179; see also United States v. Maurice, 26 F. Cas. 1211, 1216, 1219 (C.C.D. Va. 1823) (No. 15,747) (Marshall, Circuit Justice) (finding appointment by cabinet member, rather than President with Senate advice and consent, invalid under the Appointments Clause and stating that “the policy of the law condemns such appointments,” although illegal appointment did not prevent governmental suit to recover money from appointee); cf. Auffmordt v. Hedden, 137 U.S. 310, 326–28 (1890) (rejecting Appointments Clause challenge to action of appraiser appointed by inferior Executive Branch officer—not because Clause did not impose constraints but because position was not an office). By preventing diffusion, the Appointments Clause helps to ensure accountability for the quality of appointments and the operation of the government—through a limited number of publicly known and readily discernible sources of appointing authority, and also, ultimately, through the threat of impeachment, by which Congress may both remove a person from any civil “Office” and disqualify him “to hold and enjoy any Office.” U.S. Const. art. II, § 4; id. art. I, § 3. 1 II. The Essential Elements of an Office Subject to the Appointments Clause Although Buckley and subsequent cases confirm that the Appointments Clause limits the conferral of certain kinds of governmental authority to properly appointed “officers,” the Supreme Court has not articulated the precise scope and application of the Clause’s requirements; the Executive Branch, as explained below, has adopted differing interpretations since Buckley; and questions about the Clause continue to arise regularly both in the operation of the Executive Branch and in proposed legislation. We therefore have reconsidered the scope of the Clause’s requirements; in doing so, we have focused on relevant constitutional text and the earliest authorities that illuminate that text, as well as Supreme Court authority. The remainder of this memorandum explains the basis for and contours of the two elements of an “office” under the United States whose occupant must 1 This memorandum does not address other separation of powers principles that might restrict the allocation of appointing authority or the exercise of governmental powers, including the “antiaggrandizement” principle, constraints on the delegation of power outside of the federal government, and the powers and duties of the President under Article II, such as his duty under the Take Care Clause. See, e.g., Separation of Powers, 20 Op. O.L.C. at 131–32, 175–77; Deputization of Members of Congress as Special Deputy U.S. Marshals, 18 Op. O.L.C. 125 (1994); Springer v. Philippine Islands, 277 U.S. 189, 203 (1928) (applying separation of powers principles to interpret statute as barring territorial legislature from appointing persons to vote government’s stock in a corporation, regardless of whether such persons “are public officers in a strict sense”). 76 Officers of the United States Within the Meaning of the Appointments Clause be appointed in accordance with the Appointments Clause. 2 This memorandum discusses and explains the governing principles, which are consistent with and expand on Buckley and the precedents on which it relied. But apart from the few specific instances that we expressly consider (such as qui tam relators and independent counsels, below in Part II.B.3), this memorandum is not intended to address whether any particular position would be an office or to call into question any particular existing position. Please consult this Office should any particular Appointments Clause question arise that you are unable to resolve based on the principles we set out. Subpart A explains that a federal office involves a position to which is delegated by legal authority a portion of the sovereign powers of the federal government. Such powers primarily involve binding the government or third parties for the benefit of the public, such as by administering, executing, or authoritatively interpreting the laws. Delegated sovereign authority also includes other activities of the Executive Branch concerning the public that might not necessarily be described as the administration, execution, or authoritative interpretation of the laws but nevertheless have long been understood to be sovereign functions, particularly the authority to represent the United States to foreign nations or to command military force on behalf of the government. By contrast, an individual who occupies a purely advisory position (one having no legal authority), who is a typical contractor (providing goods or services), or who possesses his authority from a state does not hold a position with delegated sovereign authority of the federal government and therefore does not hold a federal office. Subpart B explains that, for a position to be a federal office, it also must be “continuing,” which means either that the position is permanent or that, even though temporary, it is not personal, “transient,” or “incidental.” Thus, special diplomatic agents, short-term contractors, qui tam relators, and many others in positions that have authority on an ad hoc or temporary basis do not hold offices. Persons holding such non-continuing positions need not be appointed in conformity with the Appointments Clause, even if they temporarily exercise delegated sovereign authority. Primarily because of this element, our analysis departs from that taken in such prior memoranda as Legislative Encroachments, 13 Op. O.L.C. at 249, and Constitutionality of the Qui Tam Provisions of the False Claims Act, 13 Op. O.L.C. 207, 221–24 (1989). Finally, Subpart C discusses additional criteria that have been considered in certain contexts for determining when a position is an office or when an individual is an officer. At least for purposes of the Appointments Clause, these criteria are 2 Even if the Appointments Clause applies to a position, the Clause does permit various means of relieving administrative burdens on the appointing officer. See Assignment of Certain Functions Related to Military Appointments, 29 Op. O.L.C. 132, 133-38 (2005). 77 Opinions of the Office of Legal Counsel in Volume 31 not essential, even if relevant to determining the presence of the two essential elements. In many cases, they are incidental traits that often flow from the existence of an office but do not define an office. One such criterion, which this Office previously considered essential, is whether a position involves employment within the federal government. See Separation of Powers, 20 Op. O.L.C. at 145– 48. As suggested when we formally published Separation of Powers in 2002, this prior analysis has been found “inadequate as an expression of the Office’s advice on separation of powers.” Id. at 124 (editor’s note). As we explain, federal employment is not necessary for the Appointments Clause to apply. In addition, we explain that the statutory basis for a position ordinarily will be relevant to whether the position involves delegated sovereign authority and is continuing, and thus is an “office” subject to the Appointments Clause, although the applicability of the Clause does not depend on whether Congress has formally and directly created an “office.” A. The Position Must Possess Delegated Sovereign Authority of the Federal Government The first essential element of an office under the United States is the delegation by legal authority of a portion of the sovereign powers of the federal government. A position must have the authority to exercise such power before the Appointments Clause will require that the occupant of the position be made an “Officer[] of the United States.” After laying out the authority for this element, we explain its contours and then address three arguably special situations. 1. The Foundations of This Element The text and structure of the Constitution reveal that officers are persons to whom the powers “delegated to the United States by the Constitution,” U.S. Const. amend. X, are in turn delegated in order to be carried out. The President himself is said to “hold [an] Office,” and the Constitution provides that “[t]he executive Power shall be vested in” that office. Id. art. II, § 1, cl. 1. The President cannot carry out the executive power alone, and so the Constitution further contemplates that executive power will be delegated to officers to help the President fulfill this duty. The Constitution recognizes that the President would need to delegate authority to others in, among other places, the clauses empowering him to “take Care that the Laws be faithfully executed,” and then, immediately following, providing that the President “shall Commission all the Officers of the United States.” Id. § 3 (emphases added). The Constitution also provides that the President “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” Id. § 2, cl. 1. See also id. art. I, § 6 (barring members of Congress in certain cases from being “appointed to any civil Office under the Authority of the 78 Officers of the United States Within the Meaning of the Appointments Clause United States”); id. § 8, cl. 18 (referring to the “Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”); cf. id. cls. 15–16 (referring to “the Officers” of the militia, who, when called into federal service, provide one means of executing federal law). As the Supreme Court has explained: “The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says, ‘shall take Care that the Laws be faithfully executed,’ Art. II, § 3, personally and through officers whom he appoints (save for such inferior officers as Congress may authorize to be appointed by the ‘Courts of Law’ or by ‘the Heads of Departments’ who are themselves Presidential appointees), Art. II, § 2.” Printz, 521 U.S. at 922; see In re Neagle, 135 U.S. 1, 63 (1890) (President’s authority to appoint and commission officers is “the means of fulfilling” his obligation under the Take Care Clause); Myers v. United States, 272 U.S. 52, 133 (1926) (same); The President and Accounting Officers, 1 Op. Att’y Gen. 624, 625 (1823) (similar). Printz was echoing President Washington, who explained in 1789 that “[t]he impossibility that one man should be able to perform all the great business of the State, I take to have been the reason for instituting the great Departments, and appointing officers therein, to assist the supreme Magistrate in discharging the duties of his trust.” 30 Writings of George Washington 333, 334 (May 25, 1789) (John C. Fitzpatrick ed., 1939). 3 Similarly, the Constitution describes the persons to whom is delegated the “judicial Power of the United States,” a particular kind of power to render binding interpretations of federal law (in the course of deciding cases or controversies), as “hold[ing] . . . Offices.” U.S. Const. art. III, § 1. This power is primarily delegated to the “Judges of the supreme Court,” id. art. II, § 2, cl. 2; and the “Judges . . . of the . . . inferior Courts,” id. art. III, § 1; but also to other officers, see Buckley, 424 U.S. at 126 (clerk, citing Ex parte Hennen, 38 U.S. 3 Regarding the significance of the President’s constitutional status as head of the Executive Branch, and his take-care duty, to the nature of an office as a delegation of executive power, see also James Madison, Notes of Debates in the Federal Convention of 1787, at 324 (Norton 1987) (Gouverneur Morris, July 19, 1787) (“There must be certain great officers of State; a minister of finance, of war, of foreign affairs &c. These he presumes will exercise their functions in subordination to the Executive, and will be amenable by impeachment to the public Justice. Without these ministers the Executive can do nothing of consequence.”); 1 Annals of Cong. 481 (James Madison, June 16, 1789) (“if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws”); id. at 492 (Fisher Ames, June 16, 1789) (“[I]t was necessary to delegate considerable powers . . . . The constitution places all executive power in the hands of the President, and could he personally execute all the laws, there would be no occasion for establishing auxiliaries; but the circumscribed powers of human nature in one man, demand the aid of others.”); id. at 637 (Theodore Sedgwick, June 29, 1789) (stating that Representative Sedgwick “conceived that a majority of the House had decided that all officers concerned in executive business should depend upon the will of the President for their continuance in office; and with good reason, for they were the eyes and arms of the principal Magistrate, the instruments of execution”). 79 Opinions of the Office of Legal Counsel in Volume 31 (13 Pet.) 230 (1839)); 3 Joseph Story, Commentaries on the Constitution of the United States § 1530, at 387 (1833) (“Story”) (clerk and reporter). 4 The debate on the ratification of the Constitution reinforces both this textual understanding of a federal “office” as characterized by the delegated sovereign authority of the federal government and the relation of the Appointments Clause to such a position. James Madison argued in the Federalist that the Constitution would establish a republican government, which he defined as one that “derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.” The Federalist No. 39, at 251 (Jacob E. Cooke ed., 1961). Alexander Hamilton similarly explained in Federalist No. 72 that the Executive Branch would be administered by appointed officers exercising the delegated executive power of the President: The administration of government . . . in its most usual and perhaps in its most precise signification . . . falls peculiarly within the province of the executive department. The actual conduct of foreign negotiations, the preparatory plans of finance, the application and disbursement of the public moneys, in conformity to the general appropriations of the legislature; the arrangement of the army and navy, the direction of the operations of war; these, and other matters of a like nature constitute what seems to be most properly understood by the administration of government. The persons therefore, to whose immediate management these different matters are committed, ought to be considered as the assistants or deputies of the chief magistrate; and, on this account, they ought to derive their offices from his appointment, at least from his nomination, and ought to be subject to his superintendence. Id. at 486–87 (emphasis added); see also The Federalist No. 29, at 183 (Alexander Hamilton) (referring to “the officers who may be entrusted with the execution of [the] laws”); cf. The Federalist No. 64, at 436 (John Jay) (referring to Constitution’s allocation of “power to do” each “act of sovereignty by which the citizens are to be bound and affected,” such as making laws, making treaties, and entering court judgments). 4 The Constitution specially provides for the election of representatives and senators, for each house of Congress to choose its legislative officers (except for the President of the Senate, an office held ex officio by the Vice President), and for the election of the President and Vice President. See U.S. Const. art. I, § 2, cl. 5; id. art. I, § 3, cl. 5; id. art. II, § 1 & amend. XII. These offices are therefore excluded from the Appointments Clause by its terms. 80 Officers of the United States Within the Meaning of the Appointments Clause The earliest commentators shared and perpetuated the Federalist’s understanding of a federal office as involving the wielding of delegated sovereign authority. William Rawle explained in the 1820s in his prominent commentary on the Constitution that one of “the means provided to enable the president to perform his public duties” is creation of “[s]ubordinate offices,” A View of the Constitution of the United States of America 151–52 (2d ed. 1829); described the appointment of officers as the means to allow the President “agents . . . for public duties,” id. at 162; and supported the power to impeach officers because “[t]he delegation of important trusts, affecting the higher interests of society, is always from various causes liable to abuse,” id. at 211. Joseph Story in the 1830s echoed Madison by explaining that “in a republican government[,] offices are established, and are to be filled . . . for purposes of the highest public good; to give dignity, strength, purity, and energy to the administration of the laws.” 3 Story § 1524, at 376. In his view, the Appointments Clause “give[s] to the president a power over the appointments of those, who are in conjunction with himself to execute the laws.” Id. Attorney General Cushing in the 1850s, surveying the law and practice regarding the operation of the Executive Branch, similarly explained that “the lawful will of the President may be announced, and an act in the authority of the President performed, not merely by a Head of Department, but, in the second or other degree of delegation, by some officer subordinate to such head.” Relation of the President to the Executive Departments, 7 Op. Att’y Gen. 453, 473 (1855). See also The Jewels of the Princess of Orange, 2 Op. Att’y Gen. 482, 489 (1831) (discussing case in which by statute the President “could only act through his subordinate officer” but might issue an order to that officer and enforce it through his removal power); John N. Pomeroy, An Introduction to the Constitutional Law of the United States § 642, at 425 (7th ed. 1883) (“Pomeroy”) (“the officers, in all their various subordinate grades, are the means and instruments by which the laws shall be executed, and the general functions and duties of the department performed”). The common law of the time of the Founding also indicates that delegated sovereign authority is a key characteristic of an office. In late eighteenth century England, “offices” involved a “duty, and in the next place the charge of such duty.” Giles Jacob, A New Law Dictionary, tit. Office (9th ed. 1772) (“Jacob”); see also 2 T. Cunningham, A New and Complete Law Dictionary, tit. Office (2d ed. 1771) (same) (“Cunningham”); 3 Matthew Bacon, A New Abridgment of the Law (4th ed. 1778) (same). “[A]n ‘officer,’” then, “was simply one whom the King had charged with a duty.” Edward S. Corwin, The President: Office and Powers 1789– 1948, at 85 (5th ed. 1984). A public officer (as distinct from a private one) was someone whom the King had charged with “any duty concerning the publick.” Jacob, tit. Office; Cunningham, tit. Office. More particularly, public offices involved authority to “affect the people generally,” John Bouvier, A Law Dictionary 203 (1839) (1993 reprint) (“Bouvier”), and “entitle[d] a man to act in the affairs of others without their appointment or permission,” P.G. Osborn, A Concise 81 Opinions of the Office of Legal Counsel in Volume 31 Law Dictionary 223 (2d ed. 1937); 2 Stewart Rapalje & Robert Lawrence, A Dictionary of American and English Law 895 (1883) (same). Thus, the general common law rule for public offices at the Founding was that “where one man hath to do with another’s affairs against his will, and without his leave, that this is an office, and he who is in it, is an officer.” Jacob, tit. Office; Cunningham, tit. Office (same). The dictionaries derived this rule, essentially verbatim, from the reported arguments of the Crown in the early case of King v. Burnell, Carth. 478 (K.B. 1700). See id. at 478 (so stating the “Rule”). Burnell involved the Censor of the College of Physicians, and the Crown contended that he was a public officer (and therefore subject to an oath requirement) because (1) the King had the duty to take “Care of the Persons of his Subjects, and consequently of their health”; (2) he had “delegated so much of his Office unto those Censors”; and (3) “he is an Officer subordinate, who hath any Part of the King’s publick care delegated to him by the King.” Id. at 478–79; see also id. at 479 (argument for doctor, not denying general rule as applied to revenue officers and officers of the peace but claiming exception for “particular Powers created for particular Purposes”). The Founders, several decades after Burnell, had a similar (albeit less favorable) view of the characteristics of a public office: The Declaration of Independence charged that King George III had “erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance.” Declaration of Independence ¶ 12 (U.S. 1776). Two years before, the First Continental Congress had written of “oppressive officers” who needed, by means of the freedom of the press, to be “shamed or intimidated into more honorable and just modes of conducting affairs.” Appeal to the Inhabitants of Quebec, 1 Journals of the Continental Congress 105, 108 (1774). Officers, thus, were persons holding sovereign authority delegated from the King that enabled them in conducting the affairs of government to affect the people “against [their] will, and without [their] leave.” Burnell, Carth. at 478. So critical to the Founders’ thinking was the abuse of power and the corruption surrounding public offices that “‘the power of appointment to offices’ was deemed ‘the most insidious and powerful weapon of eighteenth century despotism.’” Freytag v. Comm’r, 501 U.S. 868, 883 (1991) (quoting Gordon Wood, The Creation of the American Republic 1776–1787, at 143 (1969)); see generally Bernard Bailyn, The Origins of American Politics 63–91 (1970) (discussing the Founders’ complaints about the power of royal officials); The Federalist No. 76, at 509–10 (Alexander Hamilton) (praising the Appointments Clause as likely “to promote a judicious choice of men for filling the offices of the Union,” on which choices “must essentially depend the character of [the government’s] administration,” which was, in turn, “‘the true test of a good government’”). Authority from the Nation’s early years addressing the nature of a public office confirms this understanding that delegated sovereign authority is a key element. Such post-ratification materials can illuminate the original meaning of the 82 Officers of the United States Within the Meaning of the Appointments Clause Constitution where there is no evidence of a break in the law, and we are aware of none here. The Supreme Judicial Court of Maine provided the fullest early explication in 1822, addressing a question under Maine’s equivalent of the Ineligibility Clause, U.S. Const. art. I, § 6, cl. 2, which bars members of the Legislative Branch in certain cases from being appointed to a “civil Office under the Authority of the United States”: [T]he term “office” implies a delegation of a portion of the sovereign power to, and possession of it by the person filling the office;—and the exercise of such power within legal limits, constitutes the correct discharge of the duties of such office. The power thus delegated and possessed, may be a portion belonging sometimes to one of the three great departments, and sometimes to another; still it is a legal power, which may be rightfully exercised, and in its effects it will bind the rights of others . . . . Opinion of the Justices, 3 Greenl. (Me.) 481, 482 (1822). The court added that “[a]n office [is] a grant and possession of a portion of the sovereign power” and that “every ‘office,’ in the constitutional meaning of the term, implies an authority to exercise some portion of the sovereign power, either in making, executing or administering the laws.” Id. at 483. Applying this understanding, the court concluded that an agent for the preservation of timber on public lands was not a public officer because he “is to be clothed with no powers, but those of superintending the public lands, and performing certain acts in relation to them under the discretionary regulations of the governor.” Id. His duties were “not essentially different from” those of the “state printer, or a contractor to build a state house, or a state prison.” Id. Other courts treated this early analysis as authoritative. See Bunn v. Illinois, 45 Ill. 397, 409 (1867) (“The doctrine of this opinion has not been questioned, so far as we are advised, by any court, and it commends itself to our unqualified approbation.”); Patton v. Bd. of Health, 59 P. 702, 704, 705 (Cal. 1899) (describing doctrine of Maine opinion as the one that has “been held by most courts,” and Bunn as having “very fully examined” the cases). Similarly, in Byrne’s Administrators v. Stewart’s Administrators, 3 S.C. Eq. (3 Des. Eq.) 466 (1812), the South Carolina Court of Appeals held that a solicitor was not a public officer because “he does not possess any portion of the public authority.” Id. at 478; accord In the Matter of Oaths, 20 Johns. 492, 492 (N.Y. Sup. Ct. 1823) (private attorneys do not hold an “office or public trust” under state constitution because “they perform no duties on behalf of the government; they execute no public trust”). And in Commonwealth v. Binns, 17 Serg. & Rawle 219 (Pa. 1828), the Pennsylvania Supreme Court concluded, consistent with one of the examples given in the Maine opinion, that a person who had contracted to be printer of congressional reports was not an officer. Id. at 244 (opinion of Tod, J.). A concurring opinion expressly relied on the Maine opinion in describing a public 83 Opinions of the Office of Legal Counsel in Volume 31 office as including “a delegation of a portion of the sovereign power to, and possession of it by, the person filling the office.” Id. (opinion of Smith, J.). See also United States v. Hatch, 1 Pin. 182, 190 (Wis. Terr. 1842) (explaining that the term “civil officers” in appointment provision of territory’s organic act “was intended to embrace such officers as in whom part of the sovereignty or municipal regulations, or general interests of society are vested; and that such has been the general understanding in the states, under their constitutions,” relying on the Maine opinion as quoted in Binns); United States ex rel. Boyd v. Lockwood, 1 Pin. 359, 363 (Wis. Terr. 1843) (officer has “for the time being, a portion of the sovereignty . . . to be exercised for the public benefit”). Finally, in United States v. Maurice, 26 F. Cas. 1211 (C.C.D. Va. 1823), Chief Justice Marshall concluded that the Army’s position of “agent of fortifications” was a federal office, where it essentially had the duties of contracting agent—“those of a purchasing quartermaster, commissary, and paymaster.” Id. at 1214–15. These were “important duties,” which, if the President in discharging his duty to erect fortifications did not carry out directly through a series of contracts, would be carried out for him by officers. Id. at 1214. In general, Marshall explained, “[a]n office is defined to be ‘a public charge or employment,’ and he who performs the duties of the office, is an officer.” Id. Thus, an office could be said to involve the performance of public duties. See also Eliason v. Coleman, 86 N.C. 235, 239–40 (1882) (office is “a public position to which a portion of the sovereignty of the country, either legislative, executive or judicial, attaches for the time being, and which is exercised for the benefit of the public”) (quotation marks omitted); State v. Hocker, 22 So. 721, 722–23 (Fla. 1897) (surveying law of public offices beginning with 1822 Maine decision and Maurice). Reflecting the understanding from the first hundred years of American law, including pre-Founding English law, a leading treatise summarized and defined a public office as follows: A public office is the right, authority and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government, to be exercised by him for the benefit of the public. The individual so invested is a public officer. Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers § 1, at 1–2 (1890) (footnote omitted) (“Mechem”). Mechem added that the “delegation . . . of some of the sovereign functions of government” was the “most important characteristic which distinguishes an office,” such that “[u]nless the powers conferred are of this nature, the individual is not a public officer.” Id. § 4, at 5. The “‘nature of th[e] duty,’” as “‘concerning the public,’” was the key factor. Id. § 9, at 7 (quoting Burnell, Carth. at 479). 84 Officers of the United States Within the Meaning of the Appointments Clause Mechem’s distillation of the law was quickly and widely accepted. Contemporaneous commentators concurred. See Bruce Wyman, The Principles of the Administrative Law Governing the Relations of Public Officers 163 (1903) (essentially reiterating Mechem’s definition); James L. High, A Treatise on Extraordinary Legal Remedies 581 (3d ed. 1896) (“An office, such as to properly come within the legitimate scope of an information in the nature of a quo warranto, may be defined as a public position, to which a portion of the sovereignty of the country, either legislative, executive or judicial, attaches for the time being, and which is exercised for the benefit of the public.”). So did the Judiciary Committee of the House of Representatives in 1899. The House had requested a report on whether any member had “accepted any office under the United States” and whether “the acceptance of such office under the United States ha[d] vacated the seat of the Member” under the Incompatibility Clause, which provides that “no Person holding any Office under the United States” may at the same time be a member of Congress, U.S. Const. art. I, § 6, cl. 2. The Committee extensively surveyed the definition of an “office,” particularly relying on Mechem and the 1822 Maine decision, and concluded that membership on “a commission created by law to investigate and report, but having no legislative, judicial, or executive powers,” did not constitute an office under the United States. 1 Asher C. Hinds, Hinds’ Precedents of the House of Representatives 604, 604 (1907). The Committee reasoned that a public office requires a delegation of sovereign authority, which “involves necessarily the power to (1) legislate, or (2) execute law, or (3) hear and determine judicially questions submitted.” Id. at 607. 5 The commissioners in question, by contrast, “are not to execute any standing laws which are the rules of action and the guardians of rights, nor have they the right or power to make any such law, nor can they interpret or enforce any existing law.” Id. at 608; see id. at 610 (“They neither make law, execute law affecting the rights of the people, nor perform judicial functions,” but rather are “mere advisory agents of the Congress. . . . They have no power to decide any question or bind the Government or do any act affecting the rights of a single individual citizen.”). Similarly, the Attorney General at the same time explained that, although “[t]he legal definitions of a public office have been many and various,” “[t]he idea seems to prevail that it is an employment to exercise some delegated part of the sovereign power.” 5 In addition to its conclusion regarding the mere power to investigate and report, the Committee further concluded that “mere power . . . to negotiate a treaty of peace, or on some commercial subject, and report without power to make binding on the Government, does not constitute a person an officer.” 1 Hinds’ Precedents at 607–08. This conclusion is correct, not because, as the report suggests, no delegation of sovereign power is involved in the authority to represent the federal government in foreign relations, but only to the extent that the person exercising that “mere power” does not hold a position that is continuing, as discussed below in Part II.B. As discussed in the next subpart, the delegated executive power of the federal government is broader than just the power to execute law, and Mechem did not state otherwise. 85 Opinions of the Office of Legal Counsel in Volume 31 Office—Compensation, 22 Op. Att’y Gen. 184, 187 (1898); see also Appointment—Holding of Two Offices—Commissioner of Labor, 26 Op. Att’y Gen. 247, 249 (1907) (similar, citing 1822 Maine decision). It was the same House report’s quotation of Mechem’s definition of a public office (along with the Supreme Court’s opinion in United States v. Hartwell, 73 U.S. 385 (1867)) on which then-Assistant Attorney General Rehnquist relied in 1969 in concluding that the Staff Assistant to the President did not hold an office within the meaning of the Ineligibility Clause. See Letter for Lamar Alexander, Staff Assistant to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel at 2 (Dec. 9, 1969) (“Rehnquist Letter”). Among other reasons, Rehnquist noted that the position had no specified duties. Id. at 3. Similarly, in 1971 this Office, in addressing the scope of the Appointments Clause and the related constitutional provision for the President to commission officers, explained that one of the two key “characteristic[s] of an officer of the United States in the Constitutional sense is that he must be invested ‘with some portion of the sovereign functions of the government.’” Memorandum for John W. Dean, III, Counsel to the President, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Presidential Commissions at 3 (Dec. 1, 1971) (quoting Mechem §§ 1, 2 & 4). The Supreme Court soon thereafter (joined by then-Justice Rehnquist) followed essentially the same analytical path in Buckley v. Valeo, the Court’s first treatment of the basic requirements of the Appointments Clause since Auffmordt v. Hedden, 137 U.S. 310 (1890), see Buckley, 424 U.S. at 125–26 & n.162, and its first decision finding a violation of that Clause. In concluding that the commissioners of the Federal Election Commission held offices under the United States and therefore were required to be appointed in accordance with the Appointments Clause, the Court focused on the Commission’s powers and concluded that many of those powers involved “the performance of a significant governmental duty exercised pursuant to a public law.” 424 U.S. at 141; see id. at 269–70 (White, J., concurring in part and dissenting in part) (similar); see also id. at 137–41, 143 (opinion of Court, surveying powers). Because of their invalid appointments, the commissioners were permitted to “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.” Id. at 139. The Court’s reference in Buckley (and subsequent cases) to the exercise of “significant authority,” id. at 126, does vary somewhat from the well-established historical formulation, but nothing in the Court’s opinion suggests any intention to break with the longstanding understanding of a public office or fashion a new term of art. On the contrary, the Court favorably discussed and cited several of the cases from the 1800s reflecting that understanding, some of them treating arguably insignificant positions as offices. See id. at 125–26. The Court also referred simply to the administration and enforcement of the public law, see id. at 139 (quoted 86 Officers of the United States Within the Meaning of the Appointments Clause above), 141 (same), and explained that “the term ‘Officers of the United States,’ . . . since it had first appeared in [the draft Constitution,] had been taken by all concerned to embrace all appointed officials exercising responsibility under the public laws of the Nation,” id. at 131. We therefore take the phrase “significant authority pursuant to the laws of the United States,” id. at 126, and similar phrases, see, e.g., id. at 141, to be shorthand for the full historical understanding of the essential elements of a public office; this phrase concisely conveys both the historical concept of delegated sovereign power and the second historical element discussed below—whether the position with such power is “continuing”—which was set out in Auffmordt, among much other early authority, and could be considered to bear heavily on the “significan[ce]” of the delegation. This Office previously has suggested such an understanding of Buckley. See Memorandum for Robert P. Bedell, Deputy General Counsel, Office of Management and Budget, from Ralph W. Tarr, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Executive Director of the Property Review Board at 5–6 (Apr. 1, 1983); see also United States ex rel. Stone v. Rockwell Intern. Corp., 282 F.3d 787, 805 (10th Cir. 2002) (Buckley “was clear” that its “definition of an officer of the United States should be construed in conformity with its prior Germaine and Auffmordt opinions, which the Buckley Court extensively quoted with approval.”). 2. Defining Delegated Sovereign Authority Although the particulars of what constitutes “delegated sovereign authority” will not always be beyond debate, early authorities as well as more recent court decisions and opinions of this Office provide extensive guidance illuminating the term. As a general matter, based on these authorities, one could define delegated sovereign authority as power lawfully conferred by the government to bind third parties, or the government itself, for the public benefit. As indicated from much of the discussion above, such authority primarily involves the authority to administer, execute, or interpret the law. See also Printz, 521 U.S. at 922–23 (Constitution provides that President and the officers he appoints are the ones who are “to administer the laws enacted by Congress” and “execute its laws”); Bowsher v. Synar, 478 U.S. 714, 733 (1986) (“Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of ‘execution’ of the law.”); Proposed Commission on Deregulation of International Ocean Shipping, 7 Op. O.L.C. 202, 202 (1983) (holding that positions of commissioners were not subject to the Appointments Clause where they involved “no enforcement authority or power to bind the Government”); 1 Hinds’ Precedents at 610 (1898 report concluding that certain commissioners were not officers because “[t]hey neither make law, execute law affecting the rights of the people, nor perform judicial functions”; “They have no power to decide any question or bind the Government or do any act affecting the rights of a single individual citizen”). 87 Opinions of the Office of Legal Counsel in Volume 31 For example, the public authority to arrest criminals, impose penalties, enter judgments, and seize persons or property constitutes delegated sovereign authority. The Supreme Court recognized early that a justice of the peace for the District of Columbia was an officer of the United States. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 164 (1803) (justice of peace holds an office); Wise v. Withers, 7 U.S. (3 Cranch) 331, 336 (1806) (“Deriving all his authority from the legislature and president of the United States, he certainly is not the officer of any other government,” and “his powers, as defined by law, seem partly judicial, and partly executive”). The New Hampshire Supreme Court likewise concluded early that a “constable” held an office, given his power “to arrest criminals . . . and by execution to seize either the person or property of small debtors,” Town of Meredith v. Ladd, 2 N.H. 517, 519 (1823), and the Supreme Court of the Wisconsin Territory concluded that a county probate judge held an office, having “for the time being, a portion of the sovereignty . . . to be exercised for the public benefit,” Boyd, 1 Pin. at 363; see also Payton v. New York, 445 U.S. 573, 590 n.30 (1980) (discussing arrest powers of “a peace officer” at common law) (internal quotation marks omitted). 6 Similarly included in delegated sovereign authority is power to issue regulations and authoritative legal opinions on behalf of the government, and other powers to execute the law whether considered “executive” or merely “administrative.” Thus, Buckley concluded that both the Federal Election Commission’s “primary responsibility for conducting civil litigation in the courts of the United States for vindicating public rights” and its “rulemaking, advisory opinions, and determinations of eligibility for . . . federal elective office” were authorities that rendered the members of the Commission subject to the Appointments Clause. 424 U.S. at 140; see id. at 137 (discussing agency’s “functions with respect to . . . fleshing out the statute” and its “functions necessary to ensure compliance with the statute and rules”); id. at 110–11 (explaining that the “advisory opinions” at issue 6 The same understanding appears in Ex parte Pool, 4 Va. (2 Va. Cas.) 276 (1821). All of the judges of the General Court appeared to agree that a justice of the peace exercised delegated sovereign authority, even while disagreeing about whether a state justice of the peace could, consistent with Article III of the federal Constitution, be authorized by federal law to commit certain persons to jail for trial. The dissent argued that the powers of justices of the peace “to grant warrants of arrest against persons accused of crimes or offences against the Laws of the United States, to examine, bail, or commit the accused, compel the attendance of witnesses, [and] recognize them to appear to give evidence under pain of imprisonment” made them officers under the Appointments Clause. Id. at 290– 91 (Semple, J., dissenting). The majority of the court did not dispute the relevance of these powers; instead, the majority concluded that the duties were permissible because not “regular and permanent” but rather involving “incidental and occasional matters”—thus relying on the second essential element of an office, discussed below in Part II.B. Id. at 279–80. In Shepard v. Commonwealth, 1 Serg. & Rawle 1 (Pa. 1814), the court concluded for similar reasons that a special commissioner was not an officer even though he made binding decisions for the state regarding claims to and compensation for certain lands. Id. at 9–10. 88 Officers of the United States Within the Meaning of the Appointments Clause provided a legal defense to private parties). Likewise, Joseph Story included among the “most important civil officers” those “connected with the administration of justice [and] the collection of the revenue.” 3 Story § 1530, at 387. Apart from matters commonly considered law enforcement or execution, delegated sovereign authority also includes other domestic matters authorized by law that could bind or otherwise affect the government or third parties for the public benefit. Such matters include legal authority over the contracts and “supplies . . . of the nation,” id. (persons with such authority also are among the “most important civil officers”); United States v. Tingey, 30 U.S. (5 Pet.) 115, 126 (1831) (discussing officers “for the purpose of making contracts, or for the purchase of supplies”); Appointments to the Commission on the Bicentennial of the Constitution, 8 Op. O.L.C. 200, 207 (1984) (listing as a “purely executive function[]” the “signing [of] legal instruments” on behalf of the government), and “the preparatory plans of finance,” The Federalist No. 72, at 486; authority over the granting of governmental licenses, see Leonard D. White, The Federalists: A Study in Administrative History 455 (1948), or to determine the rules for public access to or privileges regarding governmental property, see In re Corliss, 11 R.I. 638, 640–42 (1876); see also Opinion of the Justices, 3 Greenl. at 483 (contrasting the “discretionary regulations of the governor” regarding the public lands with the subordinate duties of his non-officer agent for the preservation of timber on public lands); and the authority to appoint to or remove from other governmental offices, see, e.g., State v. Kennon, 7 Ohio St. 546, 562–63 (1857) (these are “important public powers, trusts, and duties”). To take one example, a leading early case, Shelby v. Alcorn, 36 Miss. 273 (1858), concluded that a levee commissioner held an office, where the position included authority to set terms for and enter into contracts on behalf of the government for construction of levees, authority to sue to enforce those contracts, “the duties of treasurer, in which position he is entitled to receive large sums of public money,” and the ability essentially to levy taxes to fund construction. Id. at 289. His powers were “extensive and important, and such as no one could claim to exercise, except in virtue of a legislative enactment,” and “in the discharge of his proper functions, [he] exercises as clearly sovereign power as the governor, or a sheriff, or any other executive officer.” Id. at 291–92 (emphasis added). See also, e.g., Commonwealth v. Swasey, 133 Mass. 538, 541 (1882) (city physician, through his authority as an ex officio member of the board of health, has “important powers to be exercised for the safety and health of the people,” and so is an officer). At the same time, the 1822 Maine decision indicates that some functions simply involving the management of governmental property may be considered not “sovereign” but rather proprietary. See Opinion of the Justices, 3 Greenl. at 483 (“He is to be clothed with no powers, but those of superintending the public lands, and performing certain acts in relation to them under the discretionary regulations of the governor.”); cf. Springer v. Philippine Islands, 277 U.S. 189, 203 (1928) 89 Opinions of the Office of Legal Counsel in Volume 31 (describing authority to vote government-owned shares of a company’s stock as “not sovereign but proprietary in its nature,” though declining to give distinction significance in separation of powers challenge to statute); Constitutional Limits on “Contracting Out” Department of Justice Functions under OMB Circular A-76, 14 Op. O.L.C. 94, 99 (1990) (“[P]urely ministerial and internal functions, such as building security, mail operations, and physical plant maintenance, which neither affect the legal rights of third parties outside the Government nor involve the exercise of significant policymaking authority, may be performed by persons who are not federal officers or employees.”). As the Shelby case indicates, see 36 Miss. at 277, delegated sovereign authority further includes, on the one hand, authority on behalf of the government to receive and oversee the public’s funds. See also Corliss, 11 R.I. at 642 (“office” at least includes a position with authority for “the handling of public money . . . , or the care and oversight of some pecuniary interest of the government”); Commonwealth v. Evans, 74 Pa. 124, 139 (1873) (collection agent is “by authority at law, . . . entrusted with the receipt of public moneys” and chargeable with providing such moneys to the treasury); Tingey, 30 U.S. at 128 (referring to the “official duties of a receiver . . . of public moneys”). Correspondingly, it also includes authority over the disbursement of those public funds. See Maurice, 26 F. Cas. at 1214 (agents of fortifications have duty of “disbursement of the money placed in their hands,” consistent with orders of Army engineers); Tingey, 30 U.S. at 126–28 (discussing “disbursing officers” and “official duties of . . . an agent for disbursery of public moneys”); 3 Story § 1530, at 387 (civil officers have authority over the “expenditures of the nation”); Buckley, 424 U.S. at 140 (“determinations of eligibility for funds” are among duties implicating Appointments Clause). See generally Military Storekeepers, 6 Op. Att’y Gen. 4 (1853) (authority to superintend the receiving, safe-keeping, and distribution of military stores and supplies). Alexander Hamilton likewise included within the “administration of government,” which ought to be managed by properly appointed officers, “the application and disbursement of the public monies.” The Federalist No. 72, at 486–87. The President recently implemented this understanding when he avoided Appointments Clause concerns with a private corporation’s administration of a fellowship program by “instruct[ing] the head of the department to whose agency these funds are appropriated to treat the money as a grant” to the corporation. Statement by President George W. Bush Upon Signing H.R. 2474, 39 Weekly Comp. Pres. Doc. 917, 918 (July 14, 2003), reprinted in 2003 U.S.C.C.A.N. 1009. Finally, delegated sovereign authority of the federal government also encompasses functions that are not necessarily domestic and may not precisely involve the execution of the laws, but that nevertheless are within the “executive Power” that Article II of the Constitution confers, functions in which no mere private party would be authorized to engage. The most notable examples are “[t]he actual conduct of foreign negotiations, . . . the arrangement of the army and navy, [and] 90 Officers of the United States Within the Meaning of the Appointments Clause the direction of the operations of war.” The Federalist No. 72, at 486–87. The positions with authority to do these things have authority lawfully granted by the government to bind or control in some fashion the government or third parties for the public benefit. Thus, there are military offices. See U.S. Const. amend. XIV, § 3 (referring to persons who “hold any office, civil or military, under the United States”); Burnell, Carth. at 479 (“Officers are distinguished into Civil and Military, according to the Nature of their several Trusts”); West Point Cadets, 7 Op. Att’y Gen. 323, 329 (1855) (describing cadets and naval midshipmen, commissioned by President, as “persons of the class of the ‘inferior officers’ of the Constitution”); Mechem §§ 22–24, at 10 (recognizing military and naval officers as distinct from civil officers). These positions are primarily characterized by the authority to command in the Armed Forces—commanding both people and the force of the government. See Bouvier, tit. Officer (defining classes of officers, including “military officers who have command in the army” and “naval officers, who are in command in the navy”); Mechem §§ 22–23, at 10 (reiterating Bouvier’s definitions); West Point Cadets, 7 Op. Att’y Gen. at 336 (describing brevet second lieutenant as a commissioned officer, “capable by law to command his company in battle, and, a fortiori . . . capable of any duty less than that, which can by law be assigned to a second lieutenant”); People v. Duane, 121 N.Y. 367, 373 (1890) (“It is difficult to conceive of . . . a military office without the power of command, the right of promotion or the obligation to perform some duty.”); Separation of Powers, 20 Op. O.L.C. at 144 n.54 (“Even the lowest ranking military or naval officer is a potential commander of United States armed forces in combat.”). Such offices necessarily involve a delegation of authority that is implicit in and subordinate to the President’s authorities as “Commander in Chief of the Army and Navy of the United States.” U.S. Const. art. II, § 2; compare Relation of the President, 7 Op. Att’y Gen. at 465 (the President cannot relinquish his authority as Commander in Chief), with id. at 479–80 (The President “cannot be substituted in person into all the acts of . . . the officers, soldiers, and sailors of the Army and Navy,” and “the actual execution of” the “military business of the Government must, of necessity, devolve on persons subordinate to the President.”). There also are diplomatic offices. They have the delegated sovereign authority to speak and act on behalf of the United States toward or in other nations, whether executing the laws or otherwise: “Public ministers of every class, are the immediate representatives of their sovereigns,” and consuls likewise, although they “have not in strictness a diplomatic character,” are “the public agents of the nations to which they belong.” The Federalist No. 81, at 548 (Alexander Hamilton) (emphasis added); see Ambassadors and Other Public Ministers of the United States, 7 Op. Att’y Gen. 186, 190 (1855) (ambassadors and other public ministers constitute the “class of public officers who . . . [are] agents of their respective governments 91 Opinions of the Office of Legal Counsel in Volume 31 for the transaction of its diplomatic business abroad”); Appointment of Consuls, 7 Op. Att’y Gen. 242, 248 (1855) (consuls are a “class of public officers . . . appointed by their government to reside in foreign countries”); United States Judicial Authority in China, 7 Op. Att’y Gen. 495, 512 (1855) (Appointments Clause applies to subordinate diplomatic officers and consuls). For this reason, President Washington protested upon learning that a private citizen had been participating in treaty negotiations: “Who is Mr. Rosencrantz? And under what authority has he attended the councils of the Indians at Buffalo Creek? . . . No person should presume to speak to the Indians on business of a public nature except those who derive their Authority and receive their instructions from the War Office for that purpose.” 32 Writings of George Washington 116–17 (John C. Fitzpatrick ed., 1939) (quoted in White, Federalists at 33); cf. Opinion on the Powers of the Senate Respecting Diplomatic Appointments (1790), in 16 Papers of Thomas Jefferson 378, 379 (Julian P. Boyd ed., 1961) (“The transaction of business with foreign nations is Executive altogether.”). And federal law since 1799 has made it a crime for citizens to negotiate with foreign governments regarding the United States without the “authority” of the United States government. See Logan Act, 1 Stat. 613, ch. 1 (1799) (codified as amended at 18 U.S.C. § 953 (2000)). Indeed, the power of a diplomatic office is peculiarly delegated directly by the President, who makes such officers “the unquestionable representatives pro tanto of the sovereignty of the United States.” Ambassadors, 7 Op. Att’y Gen. at 211. A direct presidential delegation is particularly important when diplomatic officers carry out the “most important and solemn act of diplomatic service,” the President’s authority to “negotiate[] and sign[] a treaty.” Id. at 212; see Relation of the President to the Executive Departments, 7 Op. Att’y Gen. 453, 465 (1855) (“in certain stages of the negotiation of a treaty, anterior to and including its signature, [the President] delegates full powers to another person”); see also Act of Feb. 20, 1792, ch. 7, § 26, 1 Stat. 232, 239 (authorizing Postmaster General to “make arrangements” with foreign countries for mail receipt and delivery). Similarly, the delegated authority of consuls has included such clearly sovereign areas as “executing” the “body of laws for the protection of the rights of citizens of the United States in foreign countries.” Appointment of Consuls, 7 Op. Att’y Gen. at 267. Common powers and duties have included “administrative, and sometimes judicial, functions,” and assistance “in the collection of the public revenue” by authenticating documents, as well as various duties and rights defined by treaties and the law of nations. Id. at 248–49; see also Field v. Clark, 143 U.S. 649, 690 n.1 (1892) (discussing example of consular judicial powers). To the Founders, the proper exercise of such sovereign authority by officers abroad was critical for the security of the Nation. Not only does the Appointments Clause ensure accountability for their appointment by expressly mentioning them, U.S. Const. art. II, § 2, cl. 2; see also id. art. III, § 2, cls. 1 & 2, but the Emoluments Clause, id. art. I, § 9, 92 Officers of the United States Within the Meaning of the Appointments Clause cl. 8, was adopted with particular reference to preventing foreign corruption of such officers. See Application of the Emoluments Clause to a Member of the President’s Council on Bioethics, 29 Op. O.L.C. 55, 57–58 (2005) (“Emoluments Clause”). 7 3. Three Arguably Relevant Characteristics Having shown that the first element of an “office” for purposes of the Appointments Clause is a delegation of the sovereign authority of the federal government, and having given examples of what such sovereign authority involves, we will touch on three characteristics arguably relevant to the delegation of federal sovereign authority. We conclude that the first of these characteristics (having discretion) is not necessary to the existence of such authority, and that the other two (being a contractor and being a state officer) ordinarily do not involve the exercise of such authority. a. Discretion First, “independent discretion” is not a necessary attribute of delegated sovereign authority. Buckley is sometimes read to hold that persons who “do not wield independent discretion and [who] act only at the direction of officers” cannot themselves be considered officers. Separation of Powers, 20 Op. O.L.C. at 144; see Constitutional Limitations on Federal Government Participation in Binding Arbitration, 19 Op. O.L.C. 208, 216 (1995) (same). Neither Buckley nor early authority supports this restriction on the scope of an “office.” Buckley did rightly indicate that discretion in administering the laws typically will constitute the exercise of delegated sovereign authority, and therefore is of course relevant. See 424 U.S. at 138 (discretion to bring civil enforcement suit); id. at 140–41 (duties akin to those of regulatory agency); Freytag, 501 U.S. at 881–82 (noting that special trial judges “perform more than ministerial tasks” and exercise “significant discretion” in their tasks); cf. Mechem §§ 567–68, at 368–70 (discussing rules on ability to delegate the performance of official duties, turning on whether the duties involve judgment and discretion or instead are mechanical or ministerial). But Buckley did not say, nor does it follow, that such discretion is necessary. Indeed, as already indicated, Buckley reaffirmed prior decisions that had concluded that “a postmaster first class” and “the clerk of a district court” 7 In the context of the Ineligibility Clause, this Office has assumed, consistent with an 1895 opinion of the Attorney General and the text of the Clause, that an ambassador holds a “civil Office” subject to the Clause, while also noting arguments to the contrary based on the specific purposes of that Clause. See Nomination of Sitting Member of Congress to be Ambassador to Vietnam, 20 Op. O.L.C. 284, 285 & n.5 (1996). 93 Opinions of the Office of Legal Counsel in Volume 31 were officers of the United States. 424 U.S. at 126 (citing Myers v. United States, 272 U.S. 52 (1926), and Ex parte Hennen, 38 U.S. 225 (1839)). The Court contrasted these officers with the Federal Election Commissioners and concluded that if the former were “inferior officers of the United States within the meaning of the Appointments Clause, as they are, surely the Commissioners before us are at the very least such ‘inferior Officers’ within the meaning of that Clause.” Id. 8 More fundamentally, treating discretion as necessary for the existence of an office conflicts with the original understanding of “office,” early practice, and early precedents. The Constitution itself repeatedly refers to offices of “Trust” as a subset of offices. See U.S. Const. art. I, § 9, cl. 8 (Emoluments Clause); id. § 3, cl. 7 (judgments in cases of impeachment); id. art. II, § 1, cl. 2 (qualification for presidential electors). And an “office of trust” is “[a]n office whose duties and functions require the exercise of discretion, judgment, experience and skill.” Mechem § 16, at 9 (emphasis added); see Town of Meredith, 2 N.H. at 519 (similar). Blackstone contrasted “offices of public trust” with “ministerial offices.” 2 William Blackstone, Commentaries *36–37. Early legal dictionaries and abridgments, drawing on Burnell, similarly explained that a public officer “is not the less a publick officer, where his authority is confined to narrow limits; because it is the duty of his office, and the nature of that duty, which makes him a publick officer, and not the extent of his authority.” E.g., Jacob, tit. Office. Mechem reaffirmed this point. Mechem § 9, at 7 (quoting Burnell, Carth. at 479). Thus, a ministerial office—one that “give[s] the officer no power to judge of the matter to be done, and require[s] him to obey the mandates of a superior”—was still a public office. Bouvier at 203; see also Jacob, tit. Office (referring to ministerial offices); Charles Viner, A General Abridgment of Law and Equity 110 (2d ed. 1791) (same); Mechem § 21, at 10 (“Ministerial officers are those whose duty it is to execute the mandates, lawfully issued, of their superiors.”) (internal quotation marks omitted); id. § 657, at 441 (generally defining ministerial functions and officers). Early congresses and administrations, perhaps remembering the experiences that had led to the Declaration of Independence’s protest against British officers, confirmed this original meaning of an “office” through their jealousy of discretion, which they considered a threat to liberty in the hands of officers. Congress originally cabined the number of offices that possessed discretion, so that only the President and Cabinet officers would exercise substantial discretion, and most 8 At the same time, the Court indicated that there may be positions whose duties are “in an area 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.’” Buckley, 424 U.S. at 139; see id. at 141 (essentially same). As noted above, we have no occasion here to consider particular positions or what such duties or positions may be, apart from the historical examples we discuss of positions not involving delegated sovereign authority. See also id. at 126 n.162 (discussing distinction between officers and mere employees); Corwin, President at 91 & n.27 (same). 94 Officers of the United States Within the Meaning of the Appointments Clause officers in the early Republic performed their sovereign functions within strict and narrow limits. See White, The Federalists at 448–59. The first federal marshals, for example, “were ministerial officers,” required “‘to execute . . . all lawful precepts’ directed to them,” and their instructions “dealt normally with a particular person or persons and required a specific action to be performed at the direction of a court.” Id. at 455. Even within the early Treasury Department, where discretion in collectors of customs and the Comptroller could not be avoided, Secretary Alexander Hamilton pursued a system in which “little or nothing is left to the discretion of the officers of the revenue,” id. at 448 (internal quotation marks omitted), and any necessary discretion was lodged “high in the official ranks,” id. Thus, it was generally accepted that the “officers of the United States” included many particular officers who had authority but little if any discretion in administering the laws; these included officers such as registers of the land offices, masters and mates of revenue cutters, inspectors of customs, deputy collectors of customs, deputy postmasters, and district court clerks. See Roll of the Officers, Civil, Military, and Naval, of the United States, 1 Am. St. Papers, Misc. 260–319 (1802); Hennen, 38 U.S. at 257–58 (district court clerk); United States v. Morse, 27 F. Cas. 1 (C.C.D. Me. 1844) (No. 15,820) (Story, Circuit Justice) (inspector of customs); United States v. Barton, 24 F. Cas. 1025, 1027 (E.D. Pa. 1833) (No. 14,534) (deputy collector of customs); 3 Story § 1530, at 387 (court clerks and reporters; deputy postmasters). See also Pomeroy §§ 658–59, at 438–39 (1883 critique of spoils system objecting that “[t]he office holder sees that administration of the ministerial functions committed to him, is a thing of no comparative importance,” and referring to “the great mass of ministerial officers, whose duties are not political”). 9 If it is not necessary to the existence of delegated sovereign authority (and thus to the existence of an office) that a position include the exercise of discretion, all the more is it not necessary that a position include some sort of “independent” discretion in carrying out sovereign functions. The question for purposes of this first element is simply whether a position possesses delegated sovereign authority to act in the first instance, whether or not that act may be subject to direction or review by superior officers: “[A] delegation of a portion of the sovereign power” involves “a legal power, which may be rightfully exercised, and in its effects it will bind the rights of others, and be subject to revision and correction only according to the standing laws of the State,” in contrast with a person whose acts have no “authority and power of a public act or law” absent the “subsequent sanction” of an officer or the legislature. Opinion of the Justices, 3 Greenl. at 482; 9 The term “ministerial” may, however, be used informally in a different sense to indicate that certain duties do not involve the exercise of delegated sovereign authority. See Constitutional Limits on “Contracting Out,” 14 Op. O.L.C. at 99 (quoted above in Part II.A.2). 95 Opinions of the Office of Legal Counsel in Volume 31 see also White, Federalists at 448 (“Official acts may be either exactly prescribed or discretionary. Official authority is obviously enlarged by extension of discretionary power.”). Again, early practice reinforces this understanding: Inferior revenue officers, for example, had the delegated sovereign authority to make classification decisions, but those decisions could be subjected to two layers of appeal, the second being the Treasury Secretary himself. See id. at 455; see also, e.g., Act of May 28, 1796, ch. 37, §§ 3, 8 & 9, 1 Stat. 478, 479, 480–81. A revenue officer’s decision could, without any “subsequent sanction,” by law “bind the rights of others,” even though by law readily “subject to revision and correction” on the initiative of the taxpayer. b. Contractors Second, although it is true as a general matter that contractors do not hold an office under the United States, the reason for that (in most cases) is that they do not exercise any delegated sovereign authority. A person’s status as an independent contractor does not per se provide an exemption from the Appointments Clause; rather, a typical contractor provides goods or services instead of possessing any executive or judicial authority. (Similar considerations apply to analysis of grantees.) As the Maine Supreme Judicial Court explained, a contractor merely provides “a species of service performed under the public authority and for the public good, but not in the execution of any standing laws, which are considered as the rules of action and the guardians of rights.” Opinion of the Justices, 3 Greenl. at 482–83. That is why a contract with an agent for the preservation of timber on the public lands, like the employment of a “state printer, or a contractor to build a state house, or a state prison,” did not constitute an office. Id. at 483. See also Maurice, 26 F. Cas. at 1214 (“A man may certainly be employed under a contract, express or implied, to do an act, or perform a service, without becoming an officer.”); Bache v. Binns, 17 Serg. & Rawle 219, 220 (Pa. 1828) (printer of congressional reports “holds merely a contract . . . as printer of a newspaper, implying such trust only as is ordinarily implied in contracts for work”); id. at 221 (printer was “working for the United States government, as he would work for any other customer on contract for pay”). Similarly, the Supreme Court of the United States held, in Hall v. Wisconsin, 103 U.S. 5 (1880), that “commissioners” hired to conduct a survey were contractors rather than officeholders (and therefore were protected by the Constitution’s Contract Clause, art. I, § 10, cl. 1); the Court compared them to parties who contract “for the erection, alteration, or repair of public buildings, or to supply the officers or employees who occupy them with fuel, light, stationery, and other things necessary for the public service.” Id. at 10. The commissioners lacked any “portion of the sovereignty” or “the enforcement of municipal regulations or the control of the general interests of society.” See id. at 9. And in United States v. Germaine, 99 U.S. 508 (1878), the Court scoffed at the notion that “a law requiring the commissioner [of Pensions] to appoint a man 96 Officers of the United States Within the Meaning of the Appointments Clause to furnish each agency with fuel at a price per ton fixed by law high enough to secure the delivery of the coal” would create an office. Id. at 512; see Auffmordt v. Hedden, 137 U.S. 310, 328 (1890) (same). Many members of Congress took the same view in an early debate. Representative John Randolph proposed in 1806 a resolution providing, among other things, that “a contractor under the Government of the United States is an officer within the purview and meaning of the Constitution, and, as such, is incapable of holding a seat in this House” pursuant to the Incompatibility Clause. 15 Annals of Cong. 880 (1852) (reprinting the 1806 resolution); see generally David P. Currie, The Constitution in Congress: The Jeffersonians, 1801–1829, at 82–85 (2001) (discussing the resolution and debate). The House of Representatives overwhelmingly rejected the resolution, and many who spoke against it explained that, under the accepted definition of an “office,” a contractor was not an officer because he possessed no governmental power. As Representative Eppes observed: An extensive meaning has been given to the word “office.” . . . That all contractors are not officers, I am certain. A man, for instance, makes a contract with the Government to furnish supplies. He is certainly not an officer, according to the common and known acceptation of that word. He is, however, a contractor, and, under this resolution, excluded from a seat here. A carrier of mail approaches very near an officer. The person takes an oath, is subject to penalties, the remission of which depend on the Executive. His duties are fixed and prescribed by law. Near, however, as this species of contract approaches to an office, I do not consider that the word “office” in the Constitution can include even this species of contract. I consider the word “office” in the Constitution ought to be construed according to the usual import and meaning of that term. 15 Annals of Cong. at 883. Representative Findley likewise argued that a contractor who “furnished the public with [an] article of supply,” such as “flour for the use of the army” or “paper and quills” for the House, did not hold an office because “it was an essential attribute of office for a man to possess some power, to be exercised on behalf of the Government. Now a mere contractor receives no such power; he only enters into an engagement[] to perform certain specified duties.” Under Randolph’s view, “Every man who sold anything to the Government must . . . be considered as an officer,” which was absurd. Id. at 885. Representative Kelly also concurred: “A contractor receives no authority from Government.” Id. at 890–91; see also id. at 887 (Rep. Nelson) (persons with whom the Postmaster General contracts to carry the mail “are not officers of the United States, they are mere hirelings”); id. at 888 (Rep. Bidwell) (“To say that a contractor is an officer is giving a new signification to the words contractor or officer.”); id. at 890 (Rep. Elmer) (“Both common sense and the Constitution 97 Opinions of the Office of Legal Counsel in Volume 31 forbade considering a contract in the light of an office, and he had never before heard of it contended that they were equivalent terms.”). A related reason that contractors in most cases do not hold an office is that, to the extent they do assist the government in carrying out its sovereign functions, their actions (unlike those of the subordinate officers just discussed with regard to discretion) have no legal effect on third parties or the government absent subsequent sanction. They do not actually have delegated sovereign authority, even if they assist those who do or must comply with applicable law in carrying out the contract; rather, their advisory and other assisting actions are a kind of service. As the Maine Supreme Judicial Court explained: “An employment merely has none of these distinguishing features” of an office—namely “delegation of the sovereign power.” Rather, “[a] public agent acts only on behalf of his principal, the public, whose sanction is generally considered as necessary to give the acts performed the authority and power of a public act or law.” Opinion of the Justices, 3 Greenl. at 482. The mere authority to advise or inform is not delegated sovereign authority. See, e.g., Buckley, 424 U.S. at 138; Emoluments Clause, 29 Op. O.L.C. at 63–70. Even at the time of its broadest prior reading of the Appointments Clause, this Office recognized that “advisory, investigative, informative, or ceremonial functions” are not subject to the Clause. Legislative Encroachments, 13 Op. O.L.C. at 249. More recently, we explained that the President may, without creating any issue under the Appointments Clause, “tap advisers . . . to work on his behalf,” grant them substantial practical authority to develop and coordinate policy among federal agencies, and even formalize the arrangement in an executive order, so long as he does not purport to grant such advisers any “legal power” over an agency or otherwise “disturb the statutory allocation of authorities.” Centralizing Border Control Policy Under the Supervision of the Attorney General, 26 Op. O.L.C. 22, 26, 27 (2002) (emphasis added). Conversely, in those rare cases where a mere contractor did exercise delegated sovereign authority (and did so on a continuing basis), he did hold an office subject to the Appointments Clause. See Maurice, 26 F. Cas. at 1216–20; cf. Holdover and Removal of Members of Amtrak’s Reform Board, 27 Op. O.L.C. 163, 166–68 (2003) (holding that, as an incident of his statutory power to appoint the board members of a federally created corporation, the President had power to remove them at will, notwithstanding statutory provision that the corporation was not a department, agency, or instrumentality of the government). As the Attorney General explained nearly ninety years ago, “the inquiry must always be into the nature of the service to be rendered. If the appointee himself performs any of the functions of government, he is an officer. If he merely renders assistance to another in the performance of those functions, he is an employee.” Employee’s Compensation Act, 31 Op. Att’y Gen. 201, 203–04 (1918). 98 Officers of the United States Within the Meaning of the Appointments Clause c. State Officers Finally, state officers ordinarily do not possess delegated sovereign authority of the federal government, even when they assist in the administration of federal law. Thus, the Appointments Clause ordinarily does not apply to them. State officers, even when enforcing federal law, generally exercise the sovereign law enforcement authority of their state, ultimately delegated by the people of that state; if they hold any office, they are officers of their state or locality, not of the United States. They hold authority independently of a delegation from the federal government, and they and those who appoint them are accountable for their actions to the people of the state. States and their officers stand in a unique relationship with the federal government and the people under our constitutional system of dual sovereignty. As the Tenth Amendment makes express, the Framers “designed a system in which the State and Federal Governments would exercise concurrent authority over the people.” Printz, 521 U.S. at 919–20; see U.S. Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 801 (1995) (“The ‘plan of the convention’ . . . draws a basic distinction between the powers of the newly created Federal Government and the powers retained by the pre-existing sovereign States.”). The states thus retain inherent sovereign authority within their jurisdictions, and their powers proceed “not from the people of America, but from the people of the several States; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument.” Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 193 (1819); accord The Federalist No. 32, at 200 (Hamilton) (“[T]he State Governments would clearly retain all the rights of sovereignty which they before had and which were not by [the Constitution] exclusively delegated to the United States.”). Recognizing this concurrent authority, the Constitution binds state officers, along with federal ones, to swear to support the Constitution. U.S. Const. art. VI, cl. 3. That retained power includes, if a state wishes, some authority to enforce federal law within the state’s jurisdiction, subject to any limits imposed by the Constitution (apart from the Appointments Clause) or by federal law. See generally Currie, Jeffersonians at 78 (“the Union may do only what the Constitution permits and the states may do whatever it does not forbid,” although “there are implicit constitutional limitations on state power to interfere with federal operations”); cf. supra note 1. Indeed, the Founders assumed that “the States would consent to allowing their officials to assist the Federal Government.” Printz, 521 U.S. at 911. Madison, for example, predicted that “the eventual collection [of internal revenue] under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States,” and found it “extremely 99 Opinions of the Office of Legal Counsel in Volume 31 probable that in other instances, particularly in the organisation of the judicial power, the officers of the States will be cloathed with the correspondent authority of the Union.” The Federalist No. 45, at 313; see Printz, 521 U.S. at 910 (cataloguing other such statements). The early federal government did indeed make provision for such action by state officials. See, e.g., Act of March 26, 1790, § 1, ch. 3, 1 Stat. 103 (state judicial officers’ duties involving naturalization); Act of June 18, 1798, §§ 2, 4, ch. 54, 1 Stat. 566, 567–68 (same); Act of April 14, 1802, § 1, ch. 28, 2 Stat. 153, 153–54 (same); Act of July 20, 1790, ch. 29, 1 Stat. 131 (proceedings involving merchant ships); Act of Apr. 7, 1798, ch. 26, 1 Stat. 547 (proceedings involving land claims by refugees); Act of July 6, 1798, ch. 66, 1 Stat. 577, 577–78 (proceedings involving claims against aliens). And in Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820), the Court upheld Pennsylvania’s power to try a militiaman under federal criminal law for failing to report for federal service. Similarly, this Office has found it “well-settled that state law enforcement officers are permitted to enforce federal statutes where such enforcement activities do not impair federal regulatory interests.” Assistance by State and Local Police in Apprehending Illegal Aliens, 20 Op. O.L.C. 26, 29 (1996); see also United States v. Di Re, 332 U.S. 581, 589 (1948) (looking to state law to determine validity of arrest without warrant for federal offense); cf. Separation of Powers, 20 Op. O.L.C. at 146 n.63 (“Where state officials do exercise significant authority under or with respect to federal law, they do so as state officials, by the decision and under the ultimate authority of the state.”). 10 B. The Position Must Be “Continuing” The second element of a federal “office,” necessary to make a position subject to the Appointments Clause, is that the position be “continuing.” As explained below, a position is most clearly of this sort where it is permanent. But a temporary position also may be continuing, if it is not personal, “transient,” or “incidental.” Like the first element, this second one emerges from the Constitution’s text, extensive early authority (including, after the Civil War, leading decisions of the Supreme Court), and the law of public offices. After setting out the authority for this element, we describe its contours and then apply it to a few recurring areas. 10 If, however, a state officer enforcing federal law depended on affirmative federal authorization— as opposed to state authorization (subject to any federal limits or regulations) or a mere federal removal of a disability (such as preemption)—the constitutional analysis would differ, as suggested by the divisions in the early case of Pool discussed above. See supra note 6. At the extreme, Congress may not “direct state law enforcement officers to participate . . . in the administration of a federally enacted regulatory scheme,” Printz, 521 U.S. at 904 (emphasis added), or “impress[] state police officers into federal service,” id. at 923 n.12, in part because of the Appointments Clause, id. at 922–23. 100 Officers of the United States Within the Meaning of the Appointments Clause 1. The Foundations of This Element The Constitution refers to an office as something that one “holds” and “enjoys” and in which one “continues,” and these descriptions suggest that an office has some duration and ongoing duties. See, e.g., U.S. Const. art. I, § 3, cl. 7 (impeachment leading to “disqualification to hold and enjoy any Office”); art. I, § 6, cl. 2 (Incompatibility Clause, referring to a “Person holding any Office” and having a “Continuance in Office”); art. I, § 9, cl. 8 (Emoluments Clause, referring to a “Person holding any Office”); art. II, § 1, cl. 2 (providing that no “Person holding an Office . . . shall be appointed an Elector”). Similarly, the Recess Appointments Clause suggests that an office is a position that may be vacant (thus not held only by a single person) and will continue beyond a single session of Congress. See id. art. II, § 2, cl. 3 (“The President shall have Power to fill up all Vacancies that may happen during the recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”). And the Appointments Clause itself indicates that most offices are “established by Law.” Id. cl. 2 (emphasis added). One aspect of an office’s duration is its tenure, the period during which a particular incumbent may hold, enjoy, and continue in the office, and the tenure also establishes that the existence of the office is not contingent on a particular person’s holding it. The Constitution expressly mentions permanent, non-personal offices that may be held for a term, such as President or Vice President, see id. art. II, § 1, and others that may be held during good behavior, namely judgeships, see id. art. III, § 1. Madison during ratification listed three possible tenures: He referred to “persons holding their offices during pleasure, for a limited period, or during good behavior.” The Federalist No. 39, at 251; see also Rehnquist Letter at 3 (“The analysis does not rest simply on the fact that the incumbent lacks fixed tenure; such is true of Cabinet members . . . . But the position itself, as a position and apart from the particular incumbent, has no fixed duration.”). 11 11 The permissibility under the Appointments Clause of assigning a person to carry out the duties of an office temporarily (on an acting basis) is distinct from, albeit related to, whether an office exists. The former question can be understood as whether, if an office exists, a person exercising its duties truly “holds” it. See United States v. Eaton, 169 U.S. 331, 343 (1898) (upholding designation of vice consul to act as consul: “Because the subordinate officer is charged with the performance of the duty of the superior for a limited time and under special and temporary conditions, he is not thereby transformed into the superior and permanent official”) (emphases added); U.S. Const. art. II, § 1, cl. 6 (providing that in cases of removal, death, resignation, or inability of the President, “the Powers and Duties of the said Office . . . shall devolve on the Vice President,” and authorizing Congress by law to declare, for cases of removal, death, resignation, or inability of both the President and Vice President, “what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected”) (emphases added), amended by id. amend. XXV (providing that in cases of removal, death, or resignation of the President, the Vice President “shall become 101 Opinions of the Office of Legal Counsel in Volume 31 The same meaning of an “office” finds support in the legal dictionaries contemporaneous with the Founding. They distinguished between short-term arrangements, such as an “agreement to make hay, plough land, herd a flock, &c.,” and continuing positions, such as “steward of a manor,” that qualified as public or private offices. Jacob, tit. Office; see Cunningham, tit. Office (same). Even the early case of Burnell suggests the distinction, in the defendant’s attempt to portray his position as not an office because it merely involved “particular Powers created for particular Purposes.” Carth. at 479. By the time of the Founding, an “office” was understood in the common law “as an institution distinct from the person holding it and capable of persisting beyond his incumbency,” to which “certain frequently recurrent and naturally coherent duties [were] assigned more or less permanently.” Corwin, President at 85. Early American practice and precedent, particularly with regard to diplomacy (the conduct of which, as explained above in Part II.A.2, can include delegated sovereign authority), strongly support and illuminate this understanding that, to be an office, a position must have continuance or duration. From the beginning, Presidents repeatedly have “dispatched ‘secret’ agents on diplomatic or semidiplomatic missions without nominating them to the Senate.” Corwin, President at 86. One of President Washington’s first acts was unilaterally to name Gouverneur Morris (a fellow delegate to the Constitutional Convention) as a special agent to explore a commercial treaty with Britain. David P. Currie, The Constitution in Congress: The Federalist Period: 1789–1801, at 44 (1997). Washington also unilaterally named “commissioners” to deal with a rebellion in Pennsylvania in 1794 without appointing them officers. See Corwin, President at 406 n.7. So too have Presidents as far back as Washington “designated members of . . . [Congress] to represent the United States on international commissions and at diplomatic conferences,” id. at 86, notwithstanding that the Constitution’s Ineligibility Clause may have barred the members’ appointment to a “civil Office under the Authority of the United States” and that the Incompatibility Clause would have required them to vacate their seats in Congress if they took “any Office under the United States.” U.S. Const. art. I, § 6, cl. 2; see, e.g., Member of Congress—Appointment to Office, 21 Op. Att’y Gen. 211, 214 (1895) (finding violation of Ineligibility Clause in appointment of senator, because during his senatorial term “the emoluments of the office of minister to Mexico were increased”). In a striking early illustration, President Jefferson appointed Senator Daniel Smith as a commissioner to negotiate and execute treaties with the Cherokee Indians, yet Jefferson did not submit the nomination to the Senate, and Smith did not vacate his seat in the Senate. See 1 Am. St. Papers, Indian Affairs 697–98 (1805). Absent contemporaPresident” but that in cases of inability the Vice President shall discharge the powers and duties of the office of President “as Acting President”). 102 Officers of the United States Within the Meaning of the Appointments Clause neous objections on constitutional grounds to such early and consistent practice, we presume that it reflects an early consensus of its constitutionality. The rationale for this consensus, evident from the early understanding of an “office,” is that “such diplomatic assignments are not ‘offices’ in the sense of the Constitution, being summoned into existence only for specific temporary purposes.” Corwin, President at 86 (emphasis added). Indeed, a House select committee in 1822 found no “office as was contemplated by the Constitution” in President Jefferson’s dispatching of Senator Smith, also noting a similar example from Madison’s administration. 39 Annals of Cong. 1407, 1409–10 (1855); see also Office— Compensation, 22 Op. Att’y Gen. 184, 188–89 (1898) (noting other appointments for “special work of great international importance”). The most prominent early example is the Jay Treaty of 1794. It established tribunals for resolving both a border dispute and claims between creditors and merchants of the United States and Great Britain. The tribunals’ commissioners were to be appointed in equal numbers by the President (with the advice and consent of the Senate) and the British King, with a final commissioner chosen by lot. See Treaty of Amity, Commerce and Navigation, U.S.-Gr. Brit., Nov. 19, 1794, arts. V & VI, 8 Stat. 116, 119–21 (1794); see also 1 Journal of the Executive Proceedings of the Senate 204–05 (Apr. 1, 1796) (1828) (confirmation of commissioners). The treaty’s opponents, perhaps spurred by its requirement of Senate confirmation, objected that the Appointments Clause prohibited creation of commissioners by treaty. Hamilton responded in a series of essays defending the treaty: [They] are not in a strict sense OFFICERS. They are arbitrators between the two Countries. Though in the Constitutions, both of the U States and of most of the Individual states, a particular mode of appointing officers is designated, yet in practice it has not been deemed a violation of the provision to appoint Commissioners or special Agents for special purposes in a different mode. Alexander Hamilton, The Defence No. 37 (Jan. 6, 1796), reprinted in 20 The Papers of Alexander Hamilton 13, 20 (Harold C. Syrett ed., 1974) (second emphasis added); see Separation of Powers, 20 Op. O.L.C. at 146 n.67 (quoting this passage as primary example of the “long historical pedigree” for the argument that United States representatives to multinational or international entities “need not be appointed in accordance with Article II” where the entities “are created on an ad hoc or temporary basis”). 12 12 The objection, as stated by Hamilton, was that “[t]he constitution is said to be violated in that part, which requires the establishment of Officers of the U. States by law—by those stipulations of the Treaty which without the intervention of law provide for the appointment of Commissioners.” 20 103 Opinions of the Office of Legal Counsel in Volume 31 A century later, Attorney General Griggs twice applied the same understanding of an office to “special Agents for special purposes.” In 1898, he opined that a commissioner appointed by the President pursuant to a treaty, to arbitrate certain claims between the United States and Great Britain arising from the seizure of British vessels in the Bering Sea, did not hold an “office” under a particular statute, because “the temporary character of the employment, which was to consist of and to terminate at the end of the examination of a limited number of specified claims, withdraws one of the elements of an office which the Supreme Court regards as essential.” Office—Compensation, 22 Op. Att’y Gen. at 188 (citing Auffmordt, 137 U.S. at 327) (emphases added); see id. at 187 (commissioner is “sent to adjudicate upon certain named claims, listed at the end of the treaty,” and his “employment was thus to perform a certain task which might take a month or several months”); id. at 188 (referring to “occasional and temporary commissionerships”). Then in Members of the General Board of Arbitration, 23 Op. Att’y Gen. 313 (1900), the Attorney General reaffirmed his 1898 opinion and found it constitutional for the President alone to appoint, pursuant to a treaty, persons to a list from which panels of arbitrators could be drawn to resolve future disputes between signatory nations. (Attorney General Griggs was himself one of the first so named, in 1901.) Those on the list would not be “in the ordinary acceptation of the term, persons holding office,” because they would have no ongoing duties or authority: “Nominally they may be appointed for six years, but they may never actually exercise any functions at all. Their work is not only occasional, but contingent upon what is practically an appointment to act as arbitrators, to be received from foreign powers in the future.” Id. at 315. 13 Cf. British and American Papers of Alexander Hamilton at 14; see Cato, Observations on Mr. Jay’s Treaty No. XIII, in 1 The American Remembrancer 244, 250–51 (1795) (arguing that offices not enumerated in Appointments Clause may only be established by law, which did not include treaty; adding, “By what authority, then, can Mr. Jay and Lord Grenville, or the president and the senate, over-ride the constitution, and assume a power to control the rights of congress, to create the office, and to place it in such hands as they think proper, under the above limitations?”); id. No. XIV, in 2 The American Remembrancer 3, 3 (1795) (“No power is vested in [Congress] to allow the appointment of any officer by lot, and much less to admit that his Britannic majesty should exercise the right of appointing judges for the trial of causes in which they are themselves to be the parties.”). Hamilton answered the objection indirectly—by denying that any offices were being created. An 1802 “Roll of Civil, Military, and Naval Officers,” tracking expenses, includes the salaries of the American commissioners, “as they were appointed by the President,” and also includes the U.S. contribution of half the salary of the jointly appointed commissioner, but notes that the “commission is not now in a state of activity.” 1 Am. St. Papers, Misc. at 307 n.*. 13 An alternative ground for Griggs’s 1900 conclusion was that the listed arbitrators, even if called to serve, “are not expected to exercise any part of the sovereignty of the United States; they are not expected to perform any functions in the Government of the United States.” Rather, they would serve “two foreign nations that may select them and authorize them to settle a dispute between two nations.” Members of the General Board of Arbitration, 23 Op. Att’y Gen. at 315; cf. Office—Compensation, 22 Op. Att’y Gen. at 188 (“a person employed solely as a sworn judge of a joint international commission would not be spoken of as an officer of either country, although, under a treaty requiring it, selected 104 Officers of the United States Within the Meaning of the Appointments Clause International Commissioners, 6 Op. Att’y Gen. 65 (1853) (addressing questions regarding payment of commissioners appointed to arbitrate claims between Great Britain and American citizens pursuant to a treaty, without suggesting any constitutional issues). This second element of an “office” is also well established by the early law of public offices. In Maurice, Chief Justice Marshall concluded that the office of “agent of fortifications” existed in the Army. He explained that “if a duty be a continuing one” and “if those duties continue, though the person be changed; it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer.” 26 F. Cas. at 1214. Forty years later, the Illinois Supreme Court in Bunn used Maurice as the benchmark and reasoned that Marshall would have found no office if the agent had “been appointed merely to superintend the erection of a single fortification, his duties ceasing when the work was accomplished”; the court found no office in a position—commissioner to build the state house—involving “one single special duty,” “not of a permanent, but of a transient and incidental character.” 45 Ill. at 404–05. Similarly, the court in Pool, see supra note 6, essentially held that a state justice of the peace, allowed by federal law to commit to jail for trial any deserting seaman, was not a judicial officer of the United States, because he was not exercising the “regular and permanent duties” of a federal court but rather handling “incidental and occasional matters,” 2 Va. Cas. at 280; the dissent claimed a violation of the Appointments Clause by focusing only on delegated authority, quoting Burnell and objecting that the “important duties” of enforcing federal criminal laws should not be entrusted to “mere agents,” or “persons negotiating occasional business.” Id. at 288 (Semple, J., dissenting). Earlier, the Supreme Court of Pennsylvania in Shepard v. Commonwealth, 1 Serg. & Rawle 1 (Pa. 1814), held (in the alternative) that a commissioner, paid by the day for issuing binding decisions regarding certain claims to, and compensation for, certain lands in a particular county, did not hold an office of profit under the state constitution, because the position was “rather the execution of a special commission, than the holding of an office.” Id. at 10. The same court also held that a person appointed as a city’s port physician, a post with a statutory duration of four years, did not hold an office subject to the state constitution’s appointments and sent to his post by one of them”). In both decisions, Griggs also addressed the relationship between the treaty power and the Appointments Clause, the question that Hamilton had avoided. See 22 Op. Att’y. Gen. at 185–87; 23 Op. Att’y Gen. at 315. But whether it is constitutional for a treaty, as opposed to a law, to establish an office under the United States or, conversely, whether a position created by treaty is not such an office because not created by law (even if otherwise having the characteristics of such an office), or may not be for some other reason, is beyond the scope of this opinion. See generally infra Part II.C.2 (discussing creation of offices “by law”). In both cases, it was otherwise clear that the positions did not have the characteristics of offices of the United States. 105 Opinions of the Office of Legal Counsel in Volume 31 clause. Commonwealth v. Sutherland, 3 Serg. & Rawle 145 (Pa. 1817). The Chief Justice explained that “there are matters of temporary and local concern, which, although comprehended in the term office, have not been thought to be embraced by the constitution.” Id. at 9. Other early cases are to like effect. See In re Oaths, 20 Johns. 492, 493 (N.Y. 1823) (dicta, stating that “office” requires a public employment “not merely transient, occasional or incidental”); Kennon, 7 Ohio St. at 559, 562 (declining to decide “[h]ow far the general assembly may go in constituting temporary agencies and commissions for temporary, incidental, transient, or occasional purposes” without “creating an office,” where positions at issue “exercise continuously, and as a part of the regular and permanent administration of the government, important public powers, trusts, and duties”); Shelby, 36 Miss. at 289 (declaring it “universally true, that where an employment or duty is a continuing one, which is defined by rules prescribed by law and not by contract, such a charge or employment is an office”); cf. Barton, 24 F. Cas. at 1027 (contrasting positions of temporary deputy collector, appointed by collector in cases of his “occasional and necessary absence, or [] sickness,” and the “permanent office” of deputy collector, appointed by Secretary of the Treasury); Boyd, 1 Pin. at 363 (“An office is where, for the time being, a portion of the sovereignty, legislative, executive or judicial, attaches, to be exercised for the public benefit.”) (emphasis added). The Attorneys General as well held the same understanding in the domestic context from an early date. An 1828 opinion concluded that a statute granting the Commandant of the Marine Corps authority to appoint officers when “it shall become necessary” did not violate the Appointments Clause so long as it was interpreted to permit only “an occasional and transitory appointment” in emergency circumstances “should [the Marines] be detached from the ships to which they belonged.” Authority of Lieutenant Colonel Commandant of Marine Corps, 2 Op. Att’y Gen. 77, 78–79 (1828). In 1843, Attorney General Legare determined that “permanent inspectors” of customs were “officers of the government of the United States,” required to be appointed consistent with the Appointments Clause, while “occasional inspectors whose services were demanded in extraordinary exigencies in the service” were not. Appointment and Removal of Inspectors of Customs, 4 Op. Att’y Gen. at 163; see also Contract With Architect of Public Buildings, 5 Op. Att’y Gen. 754, 754–55 (1823) (appendix) (contrasting “offices of a permanent nature” with a position involving a “subject-matter . . . of a temporary and limited character,” properly characterized as a contract); The Reconstruction Acts, 12 Op. Att’y Gen. 141, 155–56 (1867) (relying on Sutherland and invoking the “well established” rule that “persons who exercise special public duties rather in the nature of occasional employments than general and continuing official duty” are not properly considered executive or judicial officers of a state); cf. Mandatory Statutes—Appointing Power, 8 Op. Att’y Gen. 41, 44 (1856) (“I can conceive the possibility of a provision of law by which a controversy between the Government 106 Officers of the United States Within the Meaning of the Appointments Clause and the city of Baltimore shall be submitted to two arbitrators, one to be appointed by each party, and in case of disagreement, they to select an umpire.”). And the 1822 House report, noted above in connection with diplomatic assignments, was ultimately concerned with whether the temporary assignment of a senator to “examine various land offices of the United States” (that is, to audit their books), for which he was paid by the day, made him an officer under the Ineligibility and Incompatibility Clauses. The committee concluded that it did not. 39 Annals of Cong. at 1408–10; see also id. at 1410–13 (collecting additional examples). The committee observed that this “opinion seems to have received the sanction, and regulated the practice, of the Government since the adoption of the Constitution, by those who bore a principal share in composing it; and must, therefore, be supposed to have understood its real import.” Id. at 1409. In a series of cases after the Civil War, the Supreme Court adhered to and applied this longstanding understanding. In Hartwell (1868), the Court held that “a clerk” in the office of the “assistant treasurer of the United States . . . at Boston” was a “public officer[]” for purposes of an indictment under an embezzlement statute. The Court explained: An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties. The employment of the defendant was in the public service of the United States. He was appointed pursuant to law, and his compensation was fixed by law. Vacating the office of his superior would not have affected the tenure of his place. His duties were continuing and permanent, not occasional or temporary. They were to be such as his superior in office should prescribe. 73 U.S. (6 Wall.) at 393. Hartwell considers, among other things, whether a position’s duties have “duration,” meaning that they are “continuing and permanent” rather than “occasional or temporary,” and whether the position has “tenure.” The term “tenure” refers to the ability of an incumbent to hold a position for a period of time, not contingent on any particular person, as Madison indicated in Federalist No. 39, quoted above. See also Hennen, 38 U.S. at 259 (“All offices, the tenure of which is not fixed by the Constitution, or limited by law, must be held either during good behavior, or . . . during the life of the incumbent; or must be held at the will and discretion of some department.”); Tenure of Office of Inspectors of Customs, 2 Op. Att’y Gen. 410, 412 (1831) (“When an office is held during the pleasure of any designated officer, it is at the pleasure of the officer, and not of the individual.”). The Attorney General has explained the connection between “tenure” and this second element of an “office” as follows: “By tenure is not meant a holding for a fixed term. . . . The distinction is between those persons 107 Opinions of the Office of Legal Counsel in Volume 31 whose services are occasional and temporary, fixed by some contract of employment, and those whose services are general and indefinite in a line of duty prescribed by law. . . . A deputy clerk has an indefinite tenure given him by law.” Deputy Clerks of United States District Courts—Premium on Official Bonds, 29 Op. Att’y Gen. 593, 595–96 (1912). The Court applied Hartwell in Germaine (1879) to hold unanimously that a civil surgeon appointed by the Commissioner of Pensions to examine pensioners and applicants for pensions, and paid per examination, was not an “officer of the United States” for purposes of a criminal statute because his “duties are not continuing and permanent, and they are occasional and intermittent.” 99 U.S. at 512. The Court explained that “[t]he surgeon is only to act when called on by the Commissioner of Pensions in some special case, as when some pensioner or claimant of a pension presents himself for examination.” Id. 14 In Auffmordt (1890), the Court applied these two statutory decisions to the Appointments Clause, while also relying on Maurice. Under a customs statute, if an importer demanded a reappraisal of the valuation of his goods, the collector of customs was to select a “discreet and experienced merchant” as at least one of two people to do the reappraisal. If the two agreed, the decision was final. 137 U.S. at 312. The Court, again unanimously, held that such merchant appraiser need not be appointed in accordance with the Appointments Clause, because he did not hold an office: The merchant appraiser is an expert, selected as an emergency arises. . . . He is selected for the special case. He has no general functions, nor any employment which has any duration as to time, or which extends over any case further than as he is selected to act in that particular case. He is an executive agent, as an expert assistant to aid in ascertaining the value of the goods, selected for the particular case on the request of the importer, and selected for his special knowledge in regard to the character and value of the particular goods in question. He has no claim or right to be designated, or to act except as he may be designated. . . . His position is without tenure, 14 President Cleveland in 1886 demonstrated the same understanding of an office when recommending to Congress a means to resolve labor disputes. He suggested that “instead of arbitrators chosen in the heat of conflicting claims, and after each dispute shall arise, for the purpose of determining the same, there be created a commission of labor, consisting of three members, who shall be regular officers of the Government, charged among other duties with the consideration and settlement, when possible, of all controversies between labor and capital.” Letter to the Senate and House of Representatives (Apr. 22, 1886), in 11 A Compilation of the Messages and Papers of the Presidents 4979, 4980 (James D. Richardson ed., 1897) (emphases added). This commission “would have the advantage of being a stable body,” gaining experience and ability, unlike “arbitrators . . . chosen for temporary service.” Id. at 4980, 4981. 108 Officers of the United States Within the Meaning of the Appointments Clause duration, continuing emolument, or continuous duties, and he acts only occasionally and temporarily. Therefore, he is not an ‘officer,’ within the meaning of the [Appointments Clause]. Id. at 326–27 (emphases added). As already suggested above in Part II.A.1, although the question of continuance was not at issue, the Court in Buckley did favorably cite Auffmordt and thus at least implicitly endorsed its analysis, such that one can consider the element of continuance incorporated in the Court’s references to “significant authority.” See 424 U.S. at 126 & n.162. In the same year as Auffmordt, Mechem (discussed above in Part II.A.1 regarding delegated sovereign authority) also recognized this element. Relying particularly on Maurice, Bunn, and Hartwell, he wrote that “[d]uration or [c]ontinuance” is a criterion, Mechem § 8, at 6 (font altered), and explained that “[t]he term office . . . embraces the idea of tenure and duration, and certainly a position which is merely temporary and local cannot ordinarily be considered an office,” id.; see id. at 6–7 n.7 & 7 n.1; see also id. § 1, at 2 (an office is sovereign power invested in an individual “for a given period, either fixed by law or enduring at the pleasure of the creating power”). Mechem nevertheless declared that “this element of continuance can not be considered as indispensable . . . if the other elements are present,” id. § 8, at 7, relying primarily on a broad definition of “office” in dicta in State v. Stanley, 66 N.C. 59, 63 (1872). He also cited Commonwealth v. Evans, 74 Pa. 124 (1874), in which the court adopted a broad rule of statutory interpretation to reach all persons entrusted by law with collecting money due to the public, regardless of whether a person’s service “be special or general, transient or permanent,” even while recognizing that, under such a rule, it could be “a difficult matter to distinguish between a public officer and a person employed by the government to perform some special service by contract.” Id. at 139. 15 Other authority from the post-Civil War period likewise could be read to reject the necessity of continuance. First, both the Attorney General and the Supreme Court of Rhode Island concluded that a commissioner of the United States Centennial Commission held an office under the Constitution. The unpaid commission, appointed by the President, had been created by Congress in 1871 and was to continue “until the close of” the 1876 centennial exhibition. See In re Corliss, 11 R.I. 638, 640, 642 (1876). The Attorney General, briefly addressing the Emoluments Clause, “entertain[ed] no doubt that, though their duties are of a 15 Mechem also cited Vaughn v. English, 8 Cal. 39 (1857). Although the court did not expressly mention the need for continuance, it also did not (unlike Stanley and Evans) disclaim it, and the position at issue (clerk in a department of the state) appears to have had continuous, indefinite duties with a clearly defined tenure. See id. at 42; see also id. at 41 (argument of prevailing party). Vaughn merely established that an office could have its tenure defined by reference to that of a superior office. See Patton v. Bd. of Health, 59 P. 702, 705 (Cal. 1899). 109 Opinions of the Office of Legal Counsel in Volume 31 special and temporary character, they may properly be called officers of the United States during the continuance of their official functions.” Offices of Trust, 15 Op. Att’y Gen. 187, 188 (1877) (emphasis added). He reasoned that “[t]he Government being interested in the performance of the[ir] duties, they constitute a public charge or office.” Id. The court in Corliss answered the question under the disqualification rules for presidential electors. See U.S. Const. art. II, § 1, cl. 2. The court likewise pointed to the importance of the high-profile international exhibition, and noted that the commission received a federal appropriation (to be repaid from any profits) and the charge of some federal property. See 11 R.I. at 641–43. As far as we have determined, neither Corliss nor the Attorney General’s opinion has been called into question on this issue. See 1 Hinds’ Precedents at 609 (1898 report endorsing holding of Corliss). Second, it was the uniform view of the federal courts in this period that a receiver of an insolvent national bank, appointed (ultimately) by the Secretary of the Treasury, was an officer for purposes of a statute authorizing certain suits in federal court by “the United States or any officer thereof.” Platt v. Beach, 19 F. Cas. 836, 840 (E.D.N.Y. 1868); Stanton v. Wilkeson, 22 F. Cas. 1074, 1075 (S.D.N.Y. 1876); Frelinghuysen v. Baldwin, 12 F. 395, 396–97 (D.N.J. 1882); Price v. Abbott, 17 F. 506, 507–08 (C.C.D. Mass. 1883) (Gray, Circuit Justice); United States v. Weitzel, 246 U.S. 533, 541 (1918). A receiver had statutory authority to bring suit, through a U.S. Attorney and under the direction of the Solicitor of the Treasury, “to take possession of all the property, books, and records of the bank, and to collect all debts due to it”; “upon [a court] order . . . to sell or compound bad or doubtful debts, and to sell all the . . . property of the bank”; and to hold the bank’s stockholders liable if necessary to pay the bank’s debts. See Price, 17 F. at 507; Platt, 19 F. Cas. at 841. In the first such case, Platt, the district court did not respond to the defendant’s argument from Maurice and Shelby that the position of a receiver was “occasional or transitory, depending upon fluctuations and exigencies,” appointed to “perform a specific duty,” upon the completion of which “his agency or service ceases,” id. at 837; see id. (“there is no office of receiver of national banks established by law”); id. at 840 (an office requires a “continuing” duty). The plaintiff had responded that a receiver “comes within every word of [Maurice’s] definition. His duties continue . . . and they would continue though the person of the receiver should be changed.” Id. at 839. Stanton was the only case to address the question of continuance. Judge Blatchford (later the author of Auffmordt) summarized Hartwell and simply stated: “A receiver of a national bank is in the public service of the United States. He is 110 Officers of the United States Within the Meaning of the Appointments Clause appointed pursuant to law. Vacation of office by the comptroller does not vacate the receivership. His duties are continuing and permanent.” 22 F. Cas. at 1075. 16 We believe it incorrect to treat the element of “continuance” as dispensible, given the constitutional text, the extensive practice and precedent (including Maurice) before the Civil War, and the Supreme Court’s authoritative opinions in Germaine and Auffmordt. The Attorney General was correct in 1907 when he affirmed that “the idea runs through all the cases that in order to constitute an office the employment must be continuing and not temporary,” relying particularly on Maurice, his 1898 opinion on the Bering Sea commission, and Germaine. Appointment—Holding of Two Offices—Commissioner of Labor, 26 Op. Att’y Gen. 247, 249 (1907). The Supreme Court of Mississippi was likewise correct in Shelby in 1858 when, relying particularly on Maurice, it “apprehend[ed] that it may be stated as universally true, that where an employment or duty is a continuing one, which is defined by rules prescribed by law and not by contract, such a charge or employment is an office.” 36 Miss. at 289. Yet “continuance” is not “permanence”; no case of which we are aware before the Civil War indicates that permanence is required, and the post-Civil War authority just discussed is best read as simply confirming that some temporary, non-personal positions may amount to offices. As Mechem himself put it, “certainly a position which is merely temporary and local cannot ordinarily be considered an office.” Mechem § 8, at 6 (emphases added). 2. Defining a “Continuing” Position No definition of “office” can be expected to harmonize all of the precedent or answer all cases that may arise. (Thus, our discussions of early authority should not be understood as necessarily endorsing every holding.) But the following two general rules encompass and harmonize most of them, particularly the earliest ones, with regard to the element of continuance or duration: First, an office exists where a position that possesses delegated sovereign authority is permanent, meaning that it is not limited by time or by being of such a nature that it will terminate “by the very fact of performance.” Bunn, 45 Ill. at 405. This rule is particularly laid out in the early Kennon case, which found an office to exist because the defendants were “to exercise continuously, and as a part of the regular 16 Cf. Ex parte Siebold, 100 U.S. 371, 397–98 (1879) (holding that Appointments Clause was not violated when Congress authorized courts of law, rather than President or head of a department, to appoint election supervisors for a particular local election; not discussing question of continuance or citing Germaine or other cases); In re Hathaway, 71 N.Y. 238, 244 (1877) (court divided 4-3 in holding that person appointed as surrogate for a particular probate case was not a public officer under state constitution, because he performed “transient, occasional or incidental duties” for “special exigencies,” having “no general powers . . . to act in respect to all like cases”). 111 Opinions of the Office of Legal Counsel in Volume 31 and permanent administration of the government, important public powers, trusts, and duties.” 7 Ohio St. at 562–63; see also Sheboygan v. Parker, 70 U.S. 93, 96 (1865) (applying this formulation); Patton v. Bd. of Health, 59 P. 702, 706 (Cal. 1899) (after survey, providing similar summary of the “reasonably well settled” rule for positions with “continuing and permanent” duties). The “continuing” duties and powers to which these cases refer should not, however, be understood as necessarily involving continuous activity, as shown in Kennon itself, which involved a standing power to appoint to and remove from specified offices. See 7 Ohio St. at 557. Similarly, a federal judge holds a permanent position even if he has a lull in his docket. His “services are general and indefinite in a line of duty,” Deputy Clerks, 29 Op. Att’y Gen. at 596, and he has “general functions” and a “claim or right to be designated, or to act” should a case arise, Auffmordt, 137 U.S. at 327. Second, if a position that possesses delegated sovereign authority is temporary (because of, for example, an express expiration date or the nature of its duties), then whether it qualifies as “continuing,” and thus an office, will depend on the presence of three factors that the early authorities discuss in connection with temporariness. The line will not always be bright, as Kennon recognized in declining to say “[h]ow far the general assembly may go in constituting temporary agencies and commissioners for temporary, incidental, transient, or occasional purposes . . . without thereby creating an office,” 7 Ohio St. at 559 (emphasis added); but it can be discerned. (1) The position’s existence should not be personal: The duties should “continue, though the person be changed,” Maurice, 26 F. Cas. at 1214, and an incumbent’s tenure should not depend on whether “the office of his superior” is vacated, Hartwell, 73 U.S. at 393; see also Tenure of Office, 2 Op. Att’y Gen. at 412; Corwin, President at 85. (2) The position should not be “transient”: The less fleeting and more enduring it is (or is likely to be), the more likely it is to be a continuing seat of power and thus an office. (3) The duties should be more than “incidental” to the regular operations of government. Although these last two factors escape precise definition, and the last of them does not directly bear on a temporal aspect, they nevertheless appear throughout the early authority—in Pool, In re Oaths, and Kennon, for example; and they capture other authority employing similar terms—such as special work; special purposes; a special, specific, single, or particular controversy or case; a special commission; specified claims; local or limited work; and extraordinary or emergency exigencies. See, e.g., Auffmordt, 137 U.S. at 326–27; Germaine, 99 U.S. at 512; Inspector of Customs, 4 Op. Att’y Gen. at 163; Marine Corps, 2 Op. Att’y Gen. at 78– 79; Hamilton, The Defence No. 37, in 20 Papers of Alexander Hamilton at 20; see also Eliason, 86 N.C. at 241 (“The true test of a public office seems to be that it is parcel of the administration of government.”); Corwin, President at 85 (an “office” at common law was an “institution” to which “certain frequently recurrent and naturally coherent duties [were] assigned more or less permanently”). Thus, the 112 Officers of the United States Within the Meaning of the Appointments Clause nature of the delegated sovereign authority will affect whether a temporary position is an office, even though a person holding a permanent position “is not the less a publick Officer where his Authority is confined to narrow Limits.” Burnell, Carth. at 479; see also Shelby, 36 Miss. at 277 (similar). One reason for considering whether a position is “incidental” is to ensure against evasion of the Appointments Clause: For example, the position of Attorney General presumably still would be an office if Congress provided for it to expire each year but reauthorized it annually. 3. A Few Recurring Areas The element of continuance provides an additional reason why a typical contractor does not, and need not, hold an office for purposes of the Appointments Clause. Maurice focused on continuance in explaining the distinction between an office and a contract (even while recognizing that one might contract to carry out an office). See 26 F. Cas. at 1214–15. Hartwell explained that a “government contract . . . from its nature is necessarily limited in its duration and specific in its objects,” unlike a government office. 73 U.S. at 393. And the Court held in Hall, discussed above in Part II.A.3, that certain persons did not hold offices because they were analogous to “parties who, pursuant to law, enter into stipulations limited in point of time, with a State, for the erection, alteration, or repair of public buildings, or to supply the officers or employees who occupy them with fuel, light, stationery, and other things necessary for the public service.” 103 U.S. at 10 (emphasis added). Similarly, Attorney General Wirt determined that “an engagement with a gentleman of the bar, whereby, for a valuable consideration, he is to render his professional services in a given case, is a contract, a bargain, an agreement, in the legal sense of these terms,” not an appointment to an office, and therefore was covered by a statute barring contracts between members of Congress and federal officers. Contracts With Members of Congress, 2 Op. Att’y Gen. 38, 40 (1826) (emphases altered); see id. (referring to contracts “for the service of a lawyer, a physician, or a mail carrier, an army purveyor, or a turnpike road maker”). He also interpreted the “office” of architect of the public buildings to be a contractual position rather than an office, where the architect had been hired to complete “specified work” of “a temporary and limited character,” rather than to occupy a position “of a permanent nature.” Contract With Architect, 5 Op. Att’y Gen. at 754, 756; see id. at 755–56 (recognizing the frequency of annual contracts). Finally, as discussed above in Part II.A.3, the House of Representatives in 1806 resoundingly rejected the claim that a contractor held an office within the meaning of the Incompatibility Clause. Mail carriers provided a recurring example of contractors, see 15 Annals of Cong. at 880, 883, 885, 887, 890, and contracts to carry the mail were limited to one year, see White, Federalists at 182; see also 15 Annals of Cong. at 882 (statement of Rep. Randolph, in favor of resolution, that “a 113 Opinions of the Office of Legal Counsel in Volume 31 contractor is an officer pro tempore—it is not an office in perpetuity, but created for a time, and for a particular purpose”). The element of continuance also justifies our previous conclusion that authorizing a private plaintiff to bring a qui tam suit on behalf of the United States under the False Claims Act, see 31 U.S.C. § 3730 (2000), does not violate the Appointments Clause, because a qui tam relator does not hold an office. Our current reasoning does, however, differ some from that previously given, under which it was sufficient that the relator was not employed by the federal government. See Separation of Powers, 20 Op. O.L.C. at 146 & n.65. A qui tam relator does at least present a question under the Appointments Clause, see Vt. Agency of Natural Res. v. United States, 529 U.S. 765, 778 n.8 (2000) (raising and reserving the question), because Congress has allowed him essentially to appoint himself to act as a civil prosecutor for the United States in a case. But such an “appointment” is a temporary and personal one, likely involving only occasional duties, and extending only to a single case; and the relator’s authority even over that case is confined in certain ways. See id. at 769–70, 772–73; see also United States ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787, 805 (10th Cir. 2002) (finding no Appointments Clause violation, where relators “are not subject to the requirement . . . that the definition of an officer ‘embraces the ideas of tenure, duration, emolument, and duties, and the latter were continuing and permanent, not occasional or temporary’”) (quoting Germaine, 99 U.S. at 511–12, citing Auffmordt, 137 U.S. at 327, and concluding that Buckley must be “construed in conformity” with them). In this respect, the qui tam relator is similar to the contractors discussed above; and thus, whatever the relevance of his “appointing” himself (in contrast to a person who contracts with the government), the distinction does not pose a problem under the Appointments Clause. For similar reasons, we reaffirm our prior conclusion (but not all of its reasoning) that the federal government’s participation in binding arbitration ordinarily does not raise an Appointments Clause problem. See, e.g., Separation of Powers, 20 Op. O.L.C. at 148–49; see also supra note 14 (discussing dispute-resolution proposal by President Cleveland). At the same time, the element of continuance, properly understood, also explains why an “independent counsel” under the Ethics in Government Act of 1978, 28 U.S.C. §§ 591–599 (1982 ed., Supp V), undoubtedly was an officer, even though the position was, by the nature of its duties, temporary and largely casespecific. The Court in Morrison v. Olson, 487 U.S. 654 (1988), thought it “clear that appellant is an ‘officer’ of the United States, not an ‘employee,’” citing Buckley’s discussion of this distinction based on Auffmordt and Germaine. Id. at 671 n.12. Justice Scalia in dissent agreed, adding that none of the parties disputed this, the only question being whether the counsel was a principal or inferior officer. Id. at 715. Although the position of a particular independent counsel was temporary, the position was non-personal; it was not “transient,” but rather 114 Officers of the United States Within the Meaning of the Appointments Clause indefinite and expected to last for multiple years, with ongoing duties, the hiring of a staff, and termination only by an affirmative determination that all matters within the counsel’s jurisdiction were at least substantially complete; and it was not “incidental,” but rather possessed core and largely unchecked federal prosecutorial powers, effectively displacing the Attorney General and the Justice Department within the counsel’s court-defined jurisdiction, which was not necessarily limited to the specific matter that had prompted his appointment. See id. at 660–64 (opinion of Court), 667–68, 671; id. at 718 (Scalia, J., dissenting). C. Several Additional Criteria Are Incidental, Not Distinct Elements of an Office Courts and others have sometimes discussed several additional criteria, beyond the two elements of delegated sovereign authority and continuance detailed above, as relevant to whether a position is a public office and when an individual is an officer. We discuss five of these, explaining that they are incidents that commonly follow from the existence of a properly constituted office, not essential elements of an office. They may provide evidence of whether an office exists under the two essential elements, but, depending on the circumstances, an office subject to the Appointments Clause may exist without them. 1. Method of Appointment First, courts sometimes have considered a person’s status as an officer by reference to his method of appointment. The Supreme Court has considered an individual’s appointment pursuant to the procedures of the Clause in determining that he was an “officer” for certain statutory purposes. For example, the Court in Wise v. Withers, 7 U.S. (3 Cranch) 331 (1806), held that a justice of the peace was an officer under a militia-exemption statute given that he was appointed by the President: “Under the sanction of a law, he is appointed, by the president. . . . We know not by what terms an officer can be defined, which would not embrace this description of persons.” Id. at 336. In Hartwell, one reason the Court held that a Treasury clerk was an officer of the United States under an embezzlement statute was that he “was appointed by the head of a department within the meaning of the constitutional provision upon the subject of the appointing power.” 73 U.S. at 393–94. The statutory cases on receivers of national banks discussed above in Part II.B.1 employed some of the same reasoning. Conversely, courts also have concluded that an individual who is not appointed in accordance with the Appointments Clause is not technically an “Officer of the United States.” Maurice concluded that an agent not appointed in accordance with the Appointments Clause was “not legally an officer” (even though he had carried out the duties of a duly constituted office). 26 F. Cas. at 1216. In United States v. Smith, 124 U.S. 525 (1888), the Court held that a clerk in the office of a collector of customs was 115 Opinions of the Office of Legal Counsel in Volume 31 not a “public officer” under an embezzlement statute because he was not appointed consistent with the Clause: “An officer of the United States can only be appointed by the President, by and with the advice and consent of the Senate, or by a court of law, or the head of a department. A person in the service of the government who does not derive his position from one of these sources is not an officer of the United States in the sense of the constitution.” Id. at 531–32; see also Germaine, 99 U.S. at 509–10 (similar); Burnap v. United States, 252 U.S. 512, 516 (1920) (“Whether the incumbent is an officer or an employee is determined by the manner in which Congress has specifically provided for the creation of the several positions, their duties and appointment thereto.”). It is true that an individual not properly appointed under the Appointments Clause cannot technically be an officer of the United States: “Unless a person in the service of the Government, therefore, holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of Departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States.” United States v. Mouat, 124 U.S. 303, 307 (1888) (emphasis added). But such a person may nevertheless be required to be appointed as prescribed by the Clause in order constitutionally to exercise his authority. A contrary conclusion would render the Appointments Clause a matter of etiquette or protocol, see Buckley, 424 U.S. at 125, rather than one of the “significant structural safeguards of the constitutional scheme,” Edmond, 520 U.S. at 659. See supra Part I; cf. Kennon, 7 Ohio St. at 557–58 (“The official or unofficial character of the defendants is to be determined, not by their name, nor by the presence or absence of an official designation, but by the nature of the functions devolved upon them.”). Under such a (tautological) reading, the Clause would require a certain means of appointment only for persons appointed by that means. As early as Maurice it was recognized that a person might in fact perform the duties of an office under the United States and yet have been unconstitutionally appointed to it. This truth also is recognized in the common law doctrine of de facto officers, by which the acts of a person not properly appointed to office might nevertheless be held valid. See Mechem § 26, at 10 (summarizing doctrine); id. §§ 315–345, at 211 et seq. (chapter concerning “officers de facto”); see also Inspectors of Customs, 4 Op. Att’y Gen. at 165 (apparently assuming applicability of doctrine in event of constitutional challenge to appointment); Ryder v. United States, 515 U.S. 177, 180–84 (1995) (discussing doctrine but declining to apply it in a “timely challenge to the constitutional validity of the appointment of an officer who adjudicate[d]” a court-martial). At the same time, the Appointments Clause does not prevent Congress from treating a position that is not, in the constitutional sense, an office under the United States as nevertheless subject to statutory restrictions on offices or officers. See Corwin, President at 91 (noting that Congress often has done this); Steele v. United States, 267 U.S. 505, 506–08 (1925) (in dicta, construing statutory reference to “a civil officer” as not limited to 116 Officers of the United States Within the Meaning of the Appointments Clause “an officer in the constitutional sense” and including a general prohibition agent appointed by the Commissioner of Internal Revenue and a deputy marshal appointed by a marshal); see also supra Part II.B.1 (discussing Senate-confirmed commissioners under Jay Treaty); cf. Employee’s Compensation Act—Assistant United States Attorney, 31 Op. Att’y Gen. 201, 202–04 (1918) (recognizing that Congress might provide for appointment to position by President or head of department even though position was not an office, in which case one must analyze duties to determine position’s nature). 2. Established by Law Second, other authorities have stated that an office is created by law. This statement, like the proposition that a person must be appointed consistent with the Appointments Clause to be an officer, is true in one sense, and “law” can be highly relevant to whether an office exists, but the statement also can confuse the analysis if not properly understood. The Appointments Clause does provide that offices not recognized by the Constitution itself “shall be established by Law,” thus lodging in Congress ultimate authority over the creation of most offices. U.S. Const. art. II, § 2, cl. 2; see Maurice, 26 F. Cas. at 1213–14; Limitations on Presidential Power to Create a New Executive Branch Entity to Receive and Administer Funds Under Foreign Aid Legislation, 9 Op. O.L.C. 76, 77–78 (1985). 17 The Ineligibility Clause reinforces this view, by providing that “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time,” thereby contemplating that Congress will authorize offices, and reducing the incentive for members of Congress to do so in hopes of being appointed to them. U.S. Const. art. I, § 6 (emphasis added). Thus, an office subject to the Appointments Clause will ordinarily be a position that has been “established by Law”—by or under authority of a statute. But the rule for which sorts of positions have been “established by Law” such that they amount to offices subject to the Appointments Clause cannot be whether a position was formally and directly created as an “office” by law. Such a view would conflict with the substantive requirements of the Appointments Clause. Congress could not evade the Appointments Clause by, for example, the artifice of authorizing a contract for the supervision of the Justice Department, on the ground that no “office” of Attorney General would be created by law—even 17 The President has authority to appoint to diplomatic offices without an authorizing act of Congress, because the Constitution itself expressly recognizes such offices under the law of nations. See, e.g., Ambassadors, 7 Op. Att’y Gen. at 192–93; Nomination of Sitting Member of Congress to be Ambassador to Vietnam, 20 Op. O.L.C. 284, 286–92 (1996). Regarding the time at which such an office is considered created, see id. at 292–93. 117 Opinions of the Office of Legal Counsel in Volume 31 where the statutory authorization for the contract were to delegate sovereign authority and establish the continuance of the contractual position. Cf. Maurice, 26 F. Cas. at 1214, 1219 (recognizing that the government might enter into “a contract to perform the duties of” a properly established office, but that such a contract would be an “irregular” appointment that would violate the Appointments Clause). Conversely, a contract or other mere employment “may be created by law,” Mechem § 5, at 5, and governmental contracts long have been highly regulated, see, e.g., Validity of Executive Order Prohibiting Government Contractors From Discriminating in Employment Practices on Grounds of Race, Color, Religion, or National Origin, 42 Op. Att’y Gen. 97, 98–103 (1961) (collecting examples). Contracts do not, simply because created or regulated by law, create an office. Thus, whether an office has been established by law does not turn on whether Congress has formally created an “office” by law, but rather on whether the two necessary elements of an office discussed above in Parts II.A and II.B are present “by law.” The Constitution requires an examination of “the nature of the functions devolved upon” a position by legal authority, Kennon, 7 Ohio St. at 558, not the way or form in which they are devolved. Any position that is an office in the constitutional sense under the two elements we have described, and has not been created ultra vires, will have been created by law in some fashion, regardless of how labeled. It necessarily follows that “the fact that the powers in question are created and conferred by law, is an important criterion,” and that an office “finds its source and limitations in some act or expression of the governmental power.” Mechem § 5, at 5 (emphasis added); see id. § 1, at 1 (powers of an office are “created and conferred by law”). To be subject to the Appointments Clause, a position must include some continuing legal authority, as opposed to simply existing to assist someone who does have legal authority or having duties defined and existing only at the whim of its superior: There must be some sort of “line of duty prescribed by law,” Deputy Clerks, 29 Op. Att’y Gen. at 595–96, and power “defined by rules prescribed by law,” Shelby, 36 Miss. at 289. As Buckley and many other authorities thus recognize, the source of any such authority, and particularly any statutory delineation by Congress, will unavoidably help to determine whether an office exists. See, e.g., Buckley, 424 U.S. at 131, 141 (referring, respectively, to “responsibility under the public laws” and duties “exercised pursuant to a public law”); Freytag, 501 U.S. at 881 (noting that duties of a special trial judge were “specified by statute,” and contrasting special masters, hired “on a temporary, episodic basis, whose positions are not established by law, and whose duties and functions are not delineated in a statute”); id. at 901 (opinion of Scalia, J.) (agreeing with this analysis); Applicability of Appointment Provisions of the Anti-Drug Abuse Act of 1988 to Incumbent Officeholders, 12 Op. O.L.C. 286, 288 n.5 (1988) (noting that Congress had by statute authorized Attorney General to create subordinate offices, which he had done by order); Maurice, 26 F. 118 Officers of the United States Within the Meaning of the Appointments Clause Cas. at 1213–15 (concluding that, at least for purposes of a suit to enforce a purported officeholder’s bond, the office of agent of fortifications had been created by congressionally approved and authorized Army regulations); Barton, 24 F. Cas. at 1027 (explaining background rule that, where no law specifies otherwise, a deputy has “the same powers and duties” as his principal); Mechem § 570, at 373 (same); Ambassadors and Other Public Ministers, 7 Op. Att’y Gen. at 193, 196– 97, 202, 212 (discussing sources of authority of diplomatic offices, even though not created by statute). As Mechem put it: “The authority of a public officer in any given case consists of those powers which are expressly conferred upon him by the act appointing him, or which are expressly annexed to the office by the law creating it or some other law referring to it, or which are attached to the office by common law as incidents to it.” Mechem § 507, at 332. 3. Oath of Office Third, although “[p]ublic officers are usually required by law to take the oath of office,” doing so “is not an indispensable criterion and the office may exist without it, for . . . the oath is a mere incident and constitutes no part of the office.” Mechem § 6, at 6; see also Oath of Clerks in Executive Departments, 12 Op. Att’y Gen. 521, 521–22 (1868) (similar). Article VI, Clause 3, of the Constitution requires that “all executive and judicial Officers, both of the United States and of the several States” take an oath or affirmation to support the Constitution. Only after separately knowing whether an office exists could one apply this requirement. Burnell demonstrates this, as the applicability of an oath requirement turned on whether the Censor of the College of Physicians held an office. See Carth. at 478; see also Opinion of the Justices, 3 Greenl. (Me.) at 483 (similar). Similar reasoning applies to a bond, which is “usually required” of officers “to whom are entrusted the collection and custody of public money, and public ministerial officers whose actions may affect the rights and interests of individuals.” Mechem § 263, at 165; see id. §§ 253–254, at 162 (oath and bond requirements are common for persons appointed to a public office); see also 1 Hinds’ Precedents at 608 (1898 report, concluding that certain commissioners were not officers, in part because “they give no bond and take no oath”). 4. Emoluments Fourth, an emolument is also a common characteristic of an office, as Hartwell indicates, 73 U.S. at 393, but it too is not essential: “Like the requirement of an oath,” provision for pay “may aid in determining the nature of the position, but it is not conclusive. . . . As in the case of the oath, the salary or fees are mere incidents and form no part of the office.” Mechem § 7, at 6; see id. at 6 n.3 (“it is not a sine qua non”); Kennon, 7 Ohio St. at 559 (“That compensation or emolument is a usual incident to office, is well known; but that it is a necessary element 119 Opinions of the Office of Legal Counsel in Volume 31 in the constitution of an office, is not true.”). Confirming this, the law of public offices recognized offices of profit, “to which salary, compensation or fees are attached,” Mechem § 13, at 8, and offices of honor, “to which no compensation attaches,” id. § 15, at 9. See also Emoluments Clause, 29 Op. O.L.C. at 61 (discussing offices of profit). The Constitution recognizes both types of offices. See, e.g., U.S. Const. art. I, § 3, cl. 7 (punishment for impeachment may include “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States”). In addition, it separately creates the office of President, id. art. II, § 1, cl. 1, and provides for its compensation, id. cl. 7. If Presidents were to serve without pay, as Benjamin Franklin had proposed, see James Madison, Notes of Debates in the Federal Convention of 1787, at 51–55 (June 2, 1787) (1987), they would no less hold an office. Furthermore, any understanding of an “office” that would require an “emolument” akin to the compensation that a person on the regular payroll of the federal government receives would conflict with the original meaning of the Appointments Clause as revealed by earliest practice. In the first decade under the Constitution, most federal officers, particularly those outside the capital, received no compensation from the government, much less a regular one. Instead, they received authority to collect fees: By far the larger number of federal officials were compensated by fees for services rendered. Nearly the whole of the field service was paid on this basis, including the collectors, naval officers, and surveyors; the supervisors and inspectors of revenue; the attorneys and marshals; the deputy postmasters; and the consuls. . . . Officials were compensated if there was a demand for their services; otherwise the government expended nothing. They were paid on the spot, by those whom the law required to deal with them. There was no problem of collection—the self-interest of the official was sufficient. Public posting of the schedule of fees and stern laws against taking excessive amounts were relied upon to protect the public. English precedent and contemporary convenience spread the system far and wide. White, Federalists at 298. To take one example, many consuls were compensated through the following schedule of fees: two dollars from a U.S. citizen for authenticating a protest, declaration, or deposition; five percent of a citizen’s estate for taking it into possession and settling it; twenty-five cents for administering oaths and affirmations; and a dollar for certifying the delivery of merchandise. See 1 Am. St. Papers, Misc. at 307. Officials so compensated were no less officers of the United States. At the same time, where a temporary position does include emoluments provided by the government, the nature of the pay may provide some evidence of whether the position is an office under the factors discussed in Part II.B.2. In cases holding that temporary positions were not offices, courts have 120 Officers of the United States Within the Meaning of the Appointments Clause remarked that the pay provided was per diem or otherwise based on the amount of work done, rather than involving a salary. See, e.g., Bunn, 45 Ill. at 409; Germaine, 99 U.S. at 512; see also Shepherd v. Commonwealth, 1 Serg. & Rawle 1 (Pa. 1814) (commissioner regarding land claims, paid by the day); 39 Annals of Cong. at 1408–10 (examiner of land offices, paid by the day). Recognizing the various kinds of emoluments that may attach to an office, and the incidental nature of having any emolument, demonstrates the error of some of our prior opinions in concluding that the Appointments Clause does not apply to persons who are not employees of the federal government, even if they are delegated permanent federal authority to enforce federal law. See, e.g., Separation of Powers, 20 Op. O.L.C. at 145–48. The primary cases on which we relied for this view—Maurice, Hartwell, Germaine, and Auffmordt, all discussed above—do not resolve this question, and to the extent they speak to it do not clearly point in the direction that our prior opinions took. Only Auffmordt directly confronted the requirements of the Appointments Clause, but its holding does not turn on whether a person is an employee (as opposed to the nature of his duties), nor did the Court hold or state that a private actor cannot be an officer, which would have been at odds with Maurice’s recognition that a contractor might hold a position in violation of the Appointments Clause. In addition, the general language of these cases allows for an office that does not involve government employment in the modern sense. Maurice, for example, said that an office is “a public charge or employment,” 26 F. Cas. at 1214 (internal quotation marks omitted; emphasis added), and Hartwell defined an office as “a public station, or employment,” 73 U.S. at 393 (emphasis added). Maurice, among others, also does state that an “office is ‘an employment,’” 26 F. Cas. at 1214, but such a statement must be read in a contemporaneous rather than anachronistic sense, broadly to include anyone engaged by the government, whether an independent contractor, “employee,” or other agent. The pertinent definition of “employ” is: To engage in one’s service; to use as an agent or substitute in transacting business; to commission and entrust with the management of one’s affairs. The president employed an envoy to negotiate a treaty. Kings and States employ ambassadors at foreign courts. Noah Webster, An American Dictionary of the English Language, tit. Employ (1828). Thus, even an “agreement” to provide services (such as “to make hay” or “plough land”) was an “employment.” Jacob, tit. Office; Cunningham, tit. Office. As detailed above regarding contractors (see supra Parts II.A.3.b & II.B.3) and the creation of offices “by law” (see supra Part II.C.2), what matters is the nature of a position—its authority and continuance—not its label, and thus not whether Congress placed it within the federal service. Our prior analysis, notwithstanding its conclusion, went far toward acknowledging this when it recognized the 121 Opinions of the Office of Legal Counsel in Volume 31 relevance to Appointments Clause analysis of Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995), in which the Court held that the First Amendment applied to a federally created corporation notwithstanding a statute providing that the corporation was not a department, agency, or instrumentality of the government. See Separation of Powers, 20 Op. O.L.C. at 147–48 & n.70. 18 5. Commission Finally, although the holder of an office usually receives a commission, that characteristic too, like an oath or pay, is incidental rather than essential. See Mechem § 12, at 8. The Constitution, in Article II, Section 3, requires that the President “shall Commission all the Officers of the United States.” As with the oath requirement, as well as the recognition that offices are created by law, one must know who the officers are before being able to apply this provision. That a person has a commission may no doubt provide evidence that he holds an office. See, e.g., 15 Annals of Cong. at 888–89 (“There is a Constitutional definition of the word officer in the third section of the second article of the Constitution, which provides that the President ‘shall commission all the officers of the United States.’ Here then is a Constitutional definition of what is meant by a person holding an office, viz., a person commissioned by the President.”) (Rep. Bidwell). But it does not follow that a person not commissioned does not hold an office, or, conversely, that only officers have commissions. III. Conclusion For all of these reasons, we conclude that an individual who will occupy a position to which has been delegated by legal authority a portion of the sovereign powers of the federal government, and which is “continuing,” must be appointed pursuant to the Appointments clause. Conversely, a position that does not satisfy one of these two elements need not be filled pursuant to that Clause. STEVEN G. BRADBURY Acting Assistant Attorney General Office of Legal Counsel 18 Similarly, whether for constitutional purposes a person within the federal government is a mere “employee” or rather holds an office subject to the Appointments Clause will turn on the applicability of the two essential elements we have set out. See generally Buckley, 424 U.S. at 126 n.162. 122

Write a legal research memo on the following topic.

Applicability of 18 U.S.C. § 208 to Proposed Appointment of Government Official to the Board of Connie Lee A n e x e c u tiv e b ra n c h o ff ic e r o r em p lo y ee a p p o in te d to th e B o ard o f D ire c to rs o f C o n n ie L ee w o u ld be a “d ir e c to r ” w ith in th e m e a n in g o f 18 U S .C § 2 0 8 (a ) a n d th e re fo re w o u ld b e d is q u a lifie d fro m p a r­ tic ip a tin g “ p e rs o n n a lly a n d s u b sta n tia lly ” in an y “p a rtic u la r m a tte r” im p lic a tin g the fin a n c ia l in te r­ e s ts o f C o n n ie L e e u n le s s th e c o n d itio n s o f s u b se c u o n 2 0 8 (b ) are s atisfied . June 22, 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 G e n e r a l C o u n s e l D epa r tm en t o f th e T r ea su ry This memorandum is in response to your request of May 23, 1994, for an opin­ ion as to whether the Deputy Assistant Secretary, if appointed to the Board of Di­ rectors of the College Construction Loan Insurance Association (“Connie Lee”), would be subject to the requirements imposed by 18 U.S.C. § 208 on “directors” of outside organizations. We have concluded that if appointed, the Deputy Assistant Secretary would be a “director” of an outside organization within the meaning of § 208, and accordingly would have to comply with the provisions of that section in discharging his or her government duties. This conclusion does not preclude the appointment of the Deputy Assistant Secretary or another Treasury official to the board of Connie Lee. Rather, it means that if appointed, the official could not par­ ticipate in any particular matter in his or her government capacity in which Connie Lee had a financial interest, unless he or she received a waiver issued pursuant to § 208(b). B ackground Connie Lee was incorporated as a private, for-profit corporation of the District of Columbia in 1987 as directed by Title VII of the Higher Education Amendments of 1986, Pub. L. No. 99-498, sec. 701, § 751, 100 Stat. 1268, 1528 (codified at 20 U.S.C. §§ 1132f-1132f-9).* At that time, many colleges and universities were un­ able to obtain private financing for capital improvements and routine maintenance of their physical plants. By providing financial insurance and guarantees for quali­ fying loans, Connie Lee enhances the credit quality of these educational institu- ’ E d i t o r ’s N o te T h e statu to ry provisions co n cern in g C o n n ie Lee that are discussed in this opinion were su b sequ en tly rep ealed in 1996 and replaced b y the pro v isio n s that are now codified at 20 U .S.C. § 113 2 f-10 See S tu d e n t L oan M ark etin g A ssociation R eo rg an izatio n A ct o f 1996, Pub. L No. 104-208, § 603, 110 Stat 3009-27 5 , 3 0 0 9 -2 0 9 (en a ctm en t o f current sec tio n ), 30 0 9 -2 9 3 (repeal) T he changes to the statute do not affect the an aly sis o r c o n clu sio n s o f this opinion. 136 Applicability o f J8 U.S C § 208 to P roposed A ppointm ent o f G overnm ent O fficial to the B oard o f Connie Lee tions, facilitating their access to private credit. H.R. Rep. No. 99-383, at 71-73 (1985), reprinted in 1986 U.S.C.C.A.N. 2572, 2642-44 (“House Rep.”). In form and function, Connie Lee is similar to the Student Loan Marketing Association (“Sallie M ae”). Connie Lee began operating as a joint venture of the Secretary of Education, Sallie Mae and interested members of the higher education community. Congress “intended that the Corporation . . . initially operate under the stewardship of the Student Loan Marketing Association, subject to the direction and control of the Corporation’s Board of Directors. . . . [T]he direct interest o f the federal govern­ ment in the Corporation is expected to diminish and eventually terminate.” House Rep. at 74, reprinted in 1986 U.S.C.C.A.N. at 2645. The statute authorized the Secretary o f Education and Sallie Mae to subscribe to voting common stock in a four to one ratio. See 20 U.S.C. § 1132f-4(a), (b). Congress gave the board the authority to issue additional shares of voting common stock for sale to the public and institutions of higher education. Id. § 1132f-4(d). After five years, the statute authorized the Secretary of Education to sell the stock held by that department, and gave Sallie Mae a right of first refusal in the event of such a sale. Id. § 1132f-7(a). Connie Lee is governed by an eleven member board of directors. At present, two directors are appointed by the Secretary of Education, two by the Secretary o f the Treasury, and three by Sallie Mae. The remaining four directors are elected by the holders of the voting common stock. Id. § 1132f-3(a). A director serves for a term o f one year or until a successor has been appointed and qualified. Id. If Sal­ lie Mae acquires enough voting common stock from the Secretary o f Education to own more than fifty percent o f the outstanding voting shares, the entire board is to be elected by the shareholders. Id. § 1132f-7(c). In the past, the individuals appointed by the Secretary o f the Treasury have been private citizens. The Secretary is now considering appointing a Deputy Assistant Secretary to the board of Connie Lee. You are concerned that if appointed, the Deputy Assistant Secretary would no longer be able to participate in the form ula­ tion o f the Department’s policies regarding its interests in Connie Lee. Discussion Under § 208, no officer or employee in the executive branch may participate “personally and substantially” in any “particular m atter” in which an “organization in which he is serving as officer, director, trustee, general partner or employee . . . has a financial interest” unless he obtains a waiver or satisfies an exception as out­ lined in subsection 208(b). 18 U.S.C. § 208(a). However, this Office has previ­ ously taken the position that “a federal official serving on the board of an essentially private entity by virtue of a federal statutory mandate is not an ‘officer, director or trustee’ o f that entity within the meaning o f section 208.” M em oran­ dum for David H. Martin, Director, Office of Government Ethics, from Samuel A. 137 Opinions o f the O ffice o f L egal C ounsel Alito, Jr., Deputy A ssistant Attorney General, Office of Legal Counsel, Re: USIA D ir e c to r’s S ervice on the Board o f the U nited S tates Telecom m unications Training Institute at 2 (Dec. 3, 1986) (“USTTI M em o”). You have suggested that the Sec­ retary’s appointm ent o f a Deputy Assistant Secretary to the Connie Lee board would establish a position analogous to an “ex officio” director and therefore should not trigger the application o f § 208. Unfortunately, we cannot agree. This O ffice has found that a governm ent official serves on the board of a private entity in an ex officio rather than personal capacity where that service is expressly authorized by statute.1 W e have also ruled that a government official’s service as a director does not violate § 208 where the rules of the private entity designate that official as a m em ber o f the board and neither the rules or state law appear to im­ pose a fiduciary duty to the private entity on that director.2 The proposed arrangem ent for Connie Lee would not fall into either of these categories. W hile the governing statutes do not prohibit the appointment or elec­ tion of federal officers to the Connie Lee board, no government official is desig­ nated as a board m em ber in either a personal or official capacity. See 20 U.S.C. §§ 1132f-3, 1132f-7(c). As we stated in the USTTI opinion: [S]ection 208 is premised on a concern to avoid any conflict be­ tween a federal official’s public and private obligations and inter­ ests. . . . [W Jhere a government official is authorized by statute to serve on the board of a private group as part o f his or her official governm ental duties, in w hat is essentially an ex officio capacity, the reasonable inference to be drawn is that the official is to serve the interests o f the government in the event of any conflict between those interests and the interests of the private organization. Id. at 2. Any fiduciary duty the director owes to the organization in question is clearly subordinate to that director’s duties to his or her government office and the United States. 1 T h u s this O ffice has d eterm in ed that the restrictio n s o f § 208 did not apply w here a federal statute exphcitly d esig n ated the A tto rn ey G eneral as an ex officio m em ber o f the B oard o f T rustees o f the N ational T ru st for H istoric P reserv atio n , Q uestions R a ise d by the A tto rn e y G en era l's Service as a T rustee o f the N a tio n a l T rust f o r H isto ric P reservation, 6 O p . O L C . 443, 4 4 6 (1982), or where the D irector o f the U.S. Inform ation A g en cy served on the board o f a p riv ate institute pursuant to a federal statute authorizing several executiv e ag en cies to p ro v id e o fficial support to that in stitute ‘‘including . . . service on the board o f the In s titu te /’ U ST T I M em o at 2 (quoting the O m n ib u s D iplom atic Security and A nti-T errorism A ct o f 1988, Pub. L N o 9 9 -3 9 9 , § 1307, 100 S tat 8 5 3 ,8 9 9 ). *■ N o r did § 208 apply w here the constitution o f the A m erican B ar A ssociation designated the A ttorney G eneral as an ex o fficio m e m b e r o f the A B A H ouse o f D elegates, M em orandum for T hom as E. Kauper, A ssistant A tto rn ey G en eral, A n titru st Division, from M ary C L aw ton, D eputy A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, Re. C ontem plated A B A Suit (M ay 21, 1976), or where every D irector o f the N a­ tional B ureau o f Stan d ard s since 1951 had serv ed on the bo ard o f a private standard setting organization and that org an izatio n am en d ed its b y law s to d esig n ate the D irector as a non-voting ex officio m em ber of the board L etter fo r the H on. W arren G M agnuson, C hairm an, S enate C om m ittee on C om m erce, S cience and T ransp o rtatio n , from Leon U lm an, Deputy A ssistan t A ttorney G eneral, O ffice o f Legal C ounsel at 4-6 (Dec. 13, 1977) 138 A p p lic a b ility o f 18 U S C. § 2 0 8 to P ro p o se d A p p o in tm e n t o f G o v e r n m e n t O ffic ia l to th e B o a r d o f C o n n ie Lee There is no indication that the fiduciary duty of a Connie Lee director appointed by the Secretary is subordinate to any duty to the government. Congress expressly provided that absent a conflict with the provisions o f the Higher Education Act, Connie Lee was to be subject to the corporation law o f the District of Columbia. 20 U.S.C. § 1132f(c). The language and structure of the statutory provisions gov­ erning the board of directors are in no way inconsistent with the proposition that all Connie Lee directors, including those appointed by the Secretary, owe the fiduci­ ary duty dictated by D.C. law to the corporation and its shareholders. W hile the Secretaries o f Education and the Treasury were both granted the power to appoint two directors and to replace these directors by appointing replacements anytime after the end of their one year term because of the “significant interests” of the government in the early years o f operation, see House Rep. at 73, rep rin ted in 1986 U.S.C.C.A.N. at 2644; 20 U.S.C. § 1132f-3(a), the articles and bylaws of Connie Lee vest limited removal power in the board, not in any of the appointing bodies.3 If a government official appointed by the Secretary resigned or was re­ moved from that government position, he or she could retain a seat on the Connie Lee board for the duration of the term unless he or she resigned or was removed by the remaining board members.4 This structure suggests that Congress did not in­ tend for the Secretary to exercise direct control over his appointees once they were appointed. Connie L e e ’s status as a private, for-profit corporation with outstanding voting shares held by private individuals and institutions strengthens the conclusion that its directors are bound by a fiduciary duty to the corporation and to these share­ holders in their capacity as directors. 20 U.S.C. § 1132f(a),(b); Bylaws, art. Ill, § 3.8. Furthermore, directors may receive compensation for their service to the corporation “in their capacities as Directors or otherw ise.” Bylaws, art. Ill, § 3.8. W hile you have indicated that a Treasury official appointed to the board would waive any compensation, this provision is additional evidence o f the directors’ fiduciary duty to the corporation and potentially presents the appearance o f a con­ flict of interest. These obligations and the attendant potential for conflict are pre­ cisely the circum stances that § 208 is designed to address. Conclusion An executive officer or employee appointed to the board of Connie Lee by the Secretary would be a “director” within the meaning o f 18 U.S.C. § 208(a). Ac- 3 A rticle V II, clause 4 o f the original articles o f incorporation, see D istrict o f C olum bia D epartm ent o f C onsum er and R egulatory A ffairs, Business R egulation A dm inistration C ertificate o f Incorporation, College C onstruction L oan Insurance A ssociation (Feb. 13, 1987), and article III, section 3 6 o f the bylaw s, see B y­ laws o f the C o lleg e C onstruction Loan Insurance A ssociation (Sept. 11, 19 9 1) ("B ylaw s"), both specify that “ (a]ny D irector m ay be rem oved for cause by vote o f a m ajority o f the rem aining D irectors.’’ 4 T hus, ev en if the Secretary ordered the D eputy A ssistant Secretary to vote in a particular w ay on the Board, the Secretary could not enforce that o rder by rem oving him or h e r from the Board. 139 Opinions o f th e O ffice o f L egal Counsel cordingly, he or she would be disqualified from participating “personally and sub­ stantially” in any “particular matter” implicating the financial interests o f Connie Lee unless the conditions o f subsection 208(b) were satisfied. W ALTER DELLINGER A ssistan t A ttorn ey G en eral O ffice o f L egal C ounsel 140

Write a legal research memo on the following topic.

Procedures for Exchanging Instruments of Ratification for Bilateral Law Enforcement Treaties As long as the Attorney General is duly authorized by the President — or his delegate in the field of foreign affairs, the Secretary o f State — there is no legal barrier to the Attorney General witnessing or signing a Protocol o f Exchange of Ratifications on behalf of the United States. In addition, there is no legal barrier to the exchange of instruments o f ratification occurring at the Departm ent o f Justice. July 17, 1984 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 You have requested our advice regarding the procedures legally required for the exchange of instruments of ratification of certain bilateral law enforcement treaties recently concluded between the United States and other countries. We understand that the Senate has already given its advice and consent to the ratification of these treaties, and that the only questions remaining concern where, and by whom, the instruments of ratification to those treaties are required to be exchanged. We conclude that, if the Attorney General is duly authorized by either the President or his delegate (the Secretary of State), there is no legal impediment either to the Attorney General signing the Protocol of Exchange of Ratifications or to the signing ceremonies taking place at the Department of Justice. As you know, a treaty enters into force in four stages. First, the treaty is negotiated. Generally speaking, in order to negotiate a treaty, a nation’s repre­ sentative must produce “full powers,” i.e., a document from the President or his delegate designating him to represent the United States in relation to the treaty. Heads of state, heads of government, and ministers of foreign affairs are generally regarded as representing the state without having to produce full powers, while heads of diplomatic missions and representatives accredited to international organizations are regarded as possessing like powers within their jurisdiction. See Restatement (Revised) Foreign Relations Law o f United States § 310 (Tent. Draft No. 1, 1980). Thus, the President’s negotiating authority with respect to bilateral treaties is ordinarily exercised in his name only by the Secretary of State, Ambassadors, or other delegates who have been provided with full powers. In this Administration, the Attorney General has been pro­ vided with the full powers necessary to sign a number of bilateral mutual criminal assistance treaties on behalf of the United States. 157 Second, the signed treaty is submitted to the Senate for its advice and consent to ratification. Once the Senate gives its advice and consent, the treaty is returned to the President, who must ratify it by signing the instrument of ratification. Third, representatives of the two nations meet to exchange the instruments of ratification, a procedure whereby each country gives notice to the other that it has completed its domestic constitutional processes for ap­ proval and entry into force of the agreement. Fourth and finally, the President “proclaims” the treaty, and by Executive Order, declares it to be in force internationally and domestically (to the extent to which it is self-executing). The questions that you have raised regard the procedure to be followed at the third step of the procedure outlined above, namely, the exchange of instru­ ments of ratification. Specifically, you have asked whether there is any legal barrier to the Attorney General’s signing a Protocol of Exchange of Ratifica­ tions or to such a signing ceremony occurring at the Department of Justice, as opposed to the Department of State. In the brief time available, we have uncovered no such legal barriers. The customary procedure for exchanging bilateral instruments of ratification is that the exchange occurs in the capital city of the country other than that in which the treaty was signed. Thus, if the United States and Italy were to sign a treaty in Rome, the treaty would usually specify that the exchange of ratifications is to take place in Washington, D.C. It is a customary practice that representatives of the two nations witness the exchange of instruments of ratification by signing a document known as a proces verbal, or protocol of exchange. ‘The protocol of exchange does not constitute a new agreement between the parties to the treaty; it merely evidences the fact that the exchange of instruments of ratification has taken place.” 14 M. Whiteman, Digest o f International Law 65 (1970). Thus, the protocol usually states that representatives of the two coun­ tries “being duly authorized by their respective Governments,” have met for the purpose of exchanging instruments of ratification by the respective govern­ ments of the treaty at issue, and that the exchange has taken place, the respec­ tive instruments having been compared and found to be in due form. Although exchanges are often done by two plenipotentiaries, i.e., representa­ tives endowed with the “full powers” described above, that practice does not appear to be legally required. In July 1974, the Department of State approved a procedure, known as the “Circular 175” Procedure, which provides internal guidelines to be followed in the United States for conclusion of international treaties. The section of that Circular concerning “Effecting the Exchange” of Ratification expressly states that: In exchanging instruments of ratification, the representative of the United States hands to the representative of the foreign government a duplicate original of the President’s instrument of ratification. . . . A protocol, sometimes called proces verbal or “Protocol of Exchange of Ratifications,” attesting the exchange 158 is signed by the two representatives when the exchange is made. No fu ll power is required fo r this purpose. Rovine, Digest o f United States Practice in International Law — 1974 199, 209-10 (1975) (emphasis added). To us, this provision suggests that so long as the Attorney General has been “duly authorized” by the President (or his delegate in the field of foreign affairs, the Secretary of State), there is no legal barrier to the Attorney General witnessing or signing a Protocol of Exchange of Ratifications on behalf of the United States, even if the President or the Secretary of State has not otherwise conferred upon the Attorney General the “full powers” that would be required to negotiate or sign the treaty on behalf of the United States. With respect to the place of exchange, Circular 175 states only that “it is customary for a treaty to contain a simple provision to the effect that the instruments of ratification shall be exchanged at a designated capital," id. at 209 (emphasis added), without anywhere specifying in which building within the capital the exchange must take place. Assuming that the treaties with which you are concerned specify that the exchange of ratifications must occur in Washington, D.C., we see no legal impediment to that exchange occurring at the Department of Justice, rather than at the Department of State. We express no view, of course, as to whether protocol or custom might dictate otherwise with respect to either of the points discussed above. T heodore B. O lson Assistant Attorney General Office o f Legal Counsel 159

Write a legal research memo on the following topic.

Applicability of Section 504 of the Rehabilitation Act to Certain Governmental Entities Section 504 o f the Rehabilitation A ct o f 1973 prohibits discrimination against qualified handi­ capped individuals in any program or activity conducted by any “Executive agency." The legislative history o f the 1978 Amendments to the Act makes clear that Congress intended § 504 to apply to all “agencies and instrum entalities” in “the Executive branch,” including independent regulatory agencies performing functions constitutionally committed to the Executive Branch. The term “Executive agency” as used in § 504 must be construed broadly to include all government entities which are not within either the legislative or judicial branches. All o f the entities listed in the m em orandum are “Executive agencies” under § 504. These are: the Architectural and Transportation Barriers Com pliance Board, the Civil Aeronautics B oard, the Com m ission of Fine Arts, the Federal Deposit Insurance Corporation, the Federal Labor R elations Authority, the Federal M aritim e Commission, the National Transportation Safety Board, the National L abor Relations Board, the Railroad Retirement Board, the Securities and Exchange Com mission, the Federal Communications Commission, and the A dm inistrative Conference of the United States. May 3, 1983 M em orandum O p in io n for the A s s is t a n t A t t o r n e y G C iv il R ig h t s D eneral, iv is io n You have requested the views of this Office with respect to whether certain entities are “Executive agencies” covered by § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (Act).1 Section 504 prohibits, inter alia, discrimination against qualified handicapped individuals in any program or activity conducted by any “Executive agency.” Each such agency is required by § 504 to promulgate regulations to carry out these provisions. Your inquiry arises in the context of your development of prototype regulations for the use of Executive agencies in fulfilling their responsibilities under § 504.2 For the 1 T hese entities are: the Architectural and Transportation B arriers Com pliance Board, the Civil Aeronautics B oard, the C om m ission o f Fine Arts, the Federal D eposit Insurance C orporation, the Federal Labor Relations A uthority, the Federal M aritim e C om m ission, the Federal R eserve System , the Interstate Commerce C om ­ m ission, the N ational Transportation Safety Board, the N ational Labor Relations Board, the Railroad R etirem ent B oard, the S ecurities and Exchange Com m ission, the Federal C om m unications Commission, and the A dm inistrative C onference o f the U nited States. 2U n d er E xecutive O rder N o. 122S0,45 Fed. Reg. 72995 (1980), the A ttorney General has general authority to coordinate the im plem entation by “Executive agencies” o f various laws prohibiting discrim ination, including § 504. Because you have decided, as a policy matter, to assist agencies in developing their own regulations by issuing a prototype set, rather than by issuing a set o f regulations purporting to bind them, we need not address the m ore difficult questions which would be raised were the regulations to have been made mandatory. 110 reasons which follow, we believe that all of the named entities are “Executive agencies” under § 504.3 We begin with a general analysis of the intended scope of the statutory term “Executive agency” whose programs and activities are covered by § 504. We then apply this analysis to the named entities, to determine whether they should be regarded as falling within that category. I Section 504 of the Rehabilitation Act of 1973, as amended, provides in pertinent part that: No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency o r by the United States Postal Service. The head o f each such agency shall prom ulgate such regulations as may be neces­ sary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and D evelopm ental D isabilities Act o f 1978. 29 U.S.C. § 794 (emphasis added). The underscored language was added to § 504 by § 119 of the Rehabilitation, Comprehensive Services, and Develop­ mental Disabilities Amendments of 1978, Pub. L. No. 95-602, 92 Stat. 2955, 2982 (1978 Amendments). Although neither § 504 nor any other section of the Act defines the “Executive agencies” to which § 504 applies, the legislative history of the 1978 Amendments contains clear evidence of Congress’ intent in this regard. As passed by the House, § 119 of H.R. 12467, the Rehabilitation Amend­ ments of 1973, would have extended the nondiscrimination provisions of § 504 to “any program or activity conducted by any Executive agency (as defined in section 105 of title 5, United States Code).” 124 Cong. Rec. 13892 (1982). Congressman Brademas, Chairman of the Subcommittee on Select Education of the reporting Committee on Education and Labor, described this provision as extending the antidiscrimination provisions of § 504 to “all activities and programs of the executive branch of the Federal government.” Id. at 13897. Congressman Jeffords, who claimed responsibility for adding § 119 to the bill, 3 You have asked fo r our view s w ith respect to w hether the named agencies should be regarded as “Executive agencies” as that term is employed in Executive O rder No. 12250. In subsequent discussions w ith the staff o f your C oordination and Review Section, it w as agreed that the advisory nature o f the prototype § 504 regulations m ade it more appropriate at this point for us simply to address the question of statutory coverage. W e note, how ever, that w e believe it w as the President’s intent in issuing the Executive O rder to delegate to the A ttorney General his authority over all “ Executive agencies” covered by the various nondis­ crim ination laws m entioned in the O rder, including the so-called “ independent" agencies 111 described it as “extending] the coverage of section 504 to include any function or activity of any department or agency of the Federal government.” Id. at 13901.4 He explained that “ [w]hen the original legislation was developed it was intended to apply to every phase of American life,” but that the Justice Department had since ruled that “the Federal Government was exempt from the statute.”5 The proposed amendment to § 504 “removes that exemption and applies section 504 to the Federal Government as well as State and local recipients of Federal dollars.” Id. Notwithstanding these broad statements by the House sponsors of the amend­ ment to § 504, the House-passed version of the amendment to § 504 would by its terms have limited its coverage to “Executive agencies” as defined in 5 U.S.C. § 105. This definition explicitly excludes the United States Postal Service and the Postal Rate Commission. It includes, however, an entity ordinarily considered part of the Legislative Branch, the General Accounting Office.6 The Senate-passed version of H.R. 12467 contained no provision compa­ rable to § 119 of the House-passed bill. The Senate bill contained another provision, however, which reflected a similar concern over how the Act’s nondiscrimination provisions were being enforced against the Federal govern­ ment. That provision added a new section to the Act making clear that individu­ als could sue federal agencies for violations of § 501 of the Act, 29 U.S.C. § 791, and making available to such individuals the rights and remedies appli­ cable under Title VII of the Civil Rights Act of 1964, including attorneys fees. See S. Rep. No. 890, 95th Cong., 2d Sess. at 18-19 (1978).7 Section 501(b) requires, inter alia, that “[e]ach department, agency, and instrumentality (in­ cluding the United States Postal Service and the Postal Rate Commission) in the executive branch” must submit an affirmative action plan for the employ­ ment of handicapped individuals to the Civil Service Commission.8 4 T he language am ending § 504 w as not contained in the bill w hich was reported out o f the House C om m ittee on Education and Labor. S e e H.R. Rep. No. 1149, 95th C ong., 2d Sess. (1978). It was added to H.R. 12467 a t som e point p rio r to its introduction in the H ouse in M ay o f 1978. 124C ong. Rec. 13621 (1978). 5 T he Justice D epartm ent “ ruling” to w hich Congressm an Jeffords was apparently referring was an opinion issued by th is O ffice on September 23, 1977, to the G eneral Counsel o f the Department o f Health, Education and W elfare. 1 Op. O .L.C . 210 (1977). In that opinion, th is O ffice concluded that § 504, like Title VI o f the C ivil R ights A ct o f 1964, did not prohibit discrim ination by recipients o f federal financial support through program s o f insurance o r guarantee. 6 S e c tio n 105 d e fin e s “ Executive a g e n c y ” to in c lu d e “E x e c u tiv e d e p artm e n t[s],” “ G overnm ent corp o ratio n [s],” and “ Independent establishm ent[s].” T he “ Executive departm ent[s]” are defined in 5 U.S.C. § 101 to include all Cabinet-level agencies. “G overnm ent c o rp o ra tio n ^ ]” are defined in 5 U.S.C. § 103 to include both governm ent-ow ned and governm ent-controlled corporations. An “independent establishm ent” is defined in 5 U .S.C . § 104 to mean “an establishm ent in the executive branch (other than the U nited States Postal Service o r the Postal Rate C om m ission) which is not an Executive departm ent, m ilitary departm ent, G overnm ent corporation, o r part th ereo f,” and, in addition, the G eneral A ccounting Office. The General A ccounting O ffice has historically been regarded as a part o f the L egislative Branch both by Congress and by the Executive Branch. See “ General A cco u n tin g Office — A uthority to Obtain Inform ation in Possession o f E xecutive B ranch, ” 2 Op. O.L.C. 415, 4 1 6 (1978), and authorities cited therein. 7 T he provision was ultim ately enacted as § 505(a)(1) o f the Act, and is codified at 29 U.S.C. § 794a(a)(l) and (3). 8 In hearings held during 1976 and 1977, the Subcom m ittee on the H andicapped o f the Senate Com m ittee on H um an R esources had received evidence o f the difficulties which the Civil Service Commission was C ontinued 112 In Conference, the House conferees agreed to the Senate’s proposed strength­ ening of § 501, and the Senate conferees agreed to the House bill’s proposed extension of § 504, in a slightly modified form. As modified, the provision amending § 504 extended the antidiscrimination provisions of that section to “any program or activity conducted by any Executive agency or by the United States Postal Service.” H.R. Rep. No. 1780, 95th Cong., 2d Sess. 29 (1978). According to the Conference Report, this modification was intended to make § 504’s proposed new coverage of federal agencies consistent with the existing coverage of § 501(b). See id. at 93.9 In short, the amended § 504 would apply, like § 501, to “each department, agency, and instrumentality . . . in the Execu­ tive branch,” including the Postal Service, but would no longer apply to the General Accounting Office.10 Urging passage of the conference bill on the floor of the House, Congress­ man Jeffords again emphasized that the amended § 504 was intended to extend that section’s antidiscrimination provisions to “any function or activity in every department or agency of the Federal Government.” 124 Cong. Rec. 38551 (1978). See also id. at 38552 (legislation extends the provisions of § 504 to “each department, division, and agency of the Federal Government”) (re­ marks of Rep. Sarasin). With no objections to or comments on the conference amendment to § 504’s new coverage, the bill passed the House by an overwhelming margin. Id. at 8 ( . . . continued) encountering in trying to enforce agency com pliance w ith § 501(b) o f the Act. D uring those hearings, representatives o f em ployee advocacy groups charged, and governm ent w itnesses conceded, that few federal agencies h ad made any progress in enhancing em ploym ent opportunities for handicapped persons. See, e.g., Rehabilitation o f the H andicapped Programs: H earings before the Subcomm. on the H andicapped o f the Senate Comm, on Labor and Public Welfare, 94th Cong., 2d Sess., Part 3 (1976); Rehabilitation Extension Am endm ents o f 1977: H earings on S. 1712 a n d S. 1596 before the Subcomm. on the H andicapped o f the Senate Comm, on Human Resources, 95th C ong., 1st Sess. at 387-415 (1977) (1977 Senate H earings). In Decem ber o f 1978, responsibility for enforcem ent o f § 501(b) was transferred by the President to the Equal Em ploym ent O pportunity Com m ission, pursuant to R eorganization Plan No. 1 o f 1978, 92 Stat. 3781. See Executive O rder No. 12106, 44 Fed. Reg. 1053, 3 C.F.R. 263 (1978 Comp ), reprinted m 42 U S.C. 2000e-4 note (1978). 9 The language which appears in the Conference Report is d ifficult to parse, and som ew hat confusing: “The Senate recedes w ith an am endm ent adding coverage o f the provision covered by Section 5 0 1(b).” Id. In light o f the purpose o f both the H ouse and Senate to facilitate the A ct's enforcem ent against Executive Branch agencies, w e think the conclusion is inescapable that this language was intended to mean that the coverage of the two sections w ould be coextensive. 10 We do not believe that C ongress’ failure to include an explicit reference in § 504 to the Postal Rate C om m ission indicates an intent to exclude that entity from coverage. It is true th at § 501(b) refers explicitly to both the U nited States Postal Service and the Postal Rate C om m ission. H ow ever, that reference shows that C ongress regarded them both as entities already “included” as agencies or instrum entalities in the Executive Branch. See also § 501(a) (jurisdiction o f the Interagency Com m ittee on Handicapped Em ployees described in term s o f “each departm ent, agency, and instrum entality o f G overnm ent,” without reference to either the Postal Service o r the Postal Rate C om m ission, although a representative o f the Postal Service sits on the C om m ittee). A ccordingly, we do not believe that a failure to single out either the Postal Service or the Postal Rate Com m ission for special m ention in § 504 would establish a legislative intent not to include those entities as “ Executive agencies” for purposes o f that law. M oreover, it would be anom alous to conclude that C ongress intended to extend § 504 to the Postal Service but not to the Postal Rate Commission. A ccordingly, we believe that the Postal Rate C om m ission must be regarded as an “ Executive agency” for purposes o f § 504. 113 38553. The conference bill was debated and passed by the Senate on the same day, with no discussion of the amendment to § 504. Id. at 37504-10. It is clear from the legislative history of the 1978 Amendments, as set forth above, that Congress intended the amended § 504 to have the broadest possible coverage within the Executive Branch. In the House, both before and after the conference amendments, the provision’s sponsors emphasized its intended application to “any” activity of “every” federal entity." More specifically, the legislative history shows that Congress intended § 504 to apply coextensively with § 501(b). Thus Congress’ understanding of the intended coverage of § 504 as it emerged from conference can also be gauged by reference to its understanding of the coverage of § 501(b). This in turn is illuminated by the reports on § 501’s enforcement, which Congress had received each year since 1973 from the Civil Service Commission. These reports include statistics showing the progress made in hiring the handicapped by each Executive Branch agency responsible for submitting an affirmative action plan to the Commission under § 501(b). The 1977 hearing record of the Senate Committee on Human Resources incorporates a listing of agencies which had submitted such reports, and an analysis by the Civil Service Com­ mission of their performance in hiring the handicapped. See 1977 Senate Hearings, supra note 8, at 401-08. The agencies reporting under § 501(b) include, in addition to the Cabinet level agencies, all of the independent regulatory agencies and many boards, commissions and councils which per­ form only advisory functions.12 In sum, the legislative history of the 1978 Amendments makes clear that Congress intended § 504 to apply, like § 501(b), to all “agencies and instru­ mentalities” in “the Executive [BJranch” of government. Those “agencies and instrumentalities” were understood by Congress to include independent regula­ tory agencies performing functions constitutionally committed to the Execu­ tive Branch, as well as entities more closely subject to the President’s day-today supervisory authority. Accordingly, we believe that the term “Executive agency” as used in § 504 must be construed broadly to include all governmen­ tal entities which are not within either the Legislative or Judicial Branches. II Applying the broad construction of “Executive agency,” which we believe Congress intended for § 504 to the named entities, we conclude that all of them 11 N otw ithstanding these broad statem ents by the p ro v isio n 's sponsors, apparently no one proposed that it should apply to en tities in either the L egislative or Judicial Branch. 12 The C ivil S ervice C om m ission's 1978 Report shows that all but tw o o f the named entities had subm itted affirm ative action plans u n d er §501. S e e “Em ploym ent o f H andicapped Individuals Including Disabled V eterans in th e Federal G overnment," A pp. A (Sept. 30, 1978). O ne o f the tw o m issing agencies, the Federal L ab o r R elations A uthority, w as not established until O ctober o f 1978. See Pub. L. No. 9 5 -4 5 4 ,9 2 Stat. 1196 (1978). The oth er, the A rchitectual and Transportation B arriers C om pliance Board, was at that time com ­ posed entirely o f agency heads and staffed by personnel from the D epartm ent o f Health, Education and W elfare. See Pub. L. No. 93 -1 1 2 , § 502, 87 Stat. 355, 391 (1973) (codified at 29 U .S.C. § 792(a) (1976)). 114 fall within that category. It is true that a number of these entities fall under the definition of “independent regulatory agencies” contained in the Paperwork Reduction Act of 1980, 44 U.S.C. § 3502(10). However, as discussed in the preceding section, in order to find these entities outside the scope of § 504’s coverage, we would have to conclude either that they are within one of the other two exempted branches of government, or that they are not within the government at all. Notwithstanding the arguments that several of these entities have made in submissions to you, we do not think it constitutionally possible, in light of their clearly executive functions, to regard any of them as legislative entities. Cf. Buckley v. Valeo, 424 U.S. 1, 137—43 (1976). Nor do we under­ stand any of the named agencies to argue that they are not governmental entities at all.13 Consequently, we believe that all of them fall within the broad category of “Executive agencies” for purposes of § 504, and that they are therefore required to issue regulations to carry out the provisions of § 504 which apply to the programs and activities they conduct. Although we conclude that Congress intended to bring all of the named entities within the category of “Executive agencies” covered by § 504, we have not addressed the related, but distinct question of the President’s authority to direct coordination of § 504’s enforcement through an Executive order. See supra note 2. We would prefer to address this question, if necessary, in the context of specific agencies, should any fail to adopt adequate regulations as required by § 504. T heodore B. O lso n Assistant Attorney General Office o f Legal Counsel 13 One o f the entities named in your list, the Commission o f Fine A rts, concedes that it is w ithin the Executive B ranch, but argues that, because it is subject to the Federal A dvisory Committee A ct (FACA), it is not an “agency” and therefore not subject to § 504. It is true that the C om m ission would not be considered an “agency” under the A dm inistrative Procedure A ct (APA), 5 U.S C. § 551, unless it were an “authority” o f the governm ent. W e do not believe, how ever, that an entity’s status under the APA or the FACA was intended by C ongress to determ ine its coverage by § 504. The legislative history o f that Act shows that it was intended to apply to all p rogram s and activities conducted within the Executive Branch, not ju s t those conducted by entities with p a rticu la r statutory attributes. 115

Write a legal research memo on the following topic.

Participation of Members of Congress in the Ronald Reagan Centennial Commission Provisions in the Ronald Reagan Centennial Commission Act of 2009 establishing that six of eleven commissioners of the Ronald Reagan Centennial Commission would be members of Congress, appointed by congressional leadership, would raise concerns under the Appointment Clause, the Ineligibility Clause, and the separation of powers. April 21, 2009 MEMORANDUM OPINION FOR THE ACTING ASSISTANT ATTORNEY GENERAL OFFICE OF LEGISLATIVE AFFAIRS The Ronald Reagan Centennial Commission Act of 2009 (the “Act”) would create a Ronald Reagan Centennial Commission with responsibility to “plan, develop, and carry out such activities as the Commission considers fitting and proper to honor Ronald Reagan on the occasion of the 100th anniversary of his birth.” H.R. 131, 111th Cong. § 3(1). Six of the eleven commissioners would be members of Congress, appointed by congressional leadership, id. § 4(a), raising concerns under the Appointments Clause, the Ineligibility Clause, and the separation of powers. To ameliorate these concerns, we recommend amending section 3(1) of the bill to make clear that the Commission would be responsible for making advice and recommendations as to the planning, developing, and carrying out of the contemplated commemorative activities. We further recommend designating an Executive Branch official as the officer responsible for considering the advice and recommendations of the Commission and then “planning, developing and carrying out” the ceremonial events. The Act could require that these events include participatory roles for members of both branches, but operational control should remain with the designated Executive Branch official. I. The Ronald Reagan Centennial Commission (the “Commission”) created by the Act would be composed of the following eleven members: (1) The Secretary of the Interior. 193 33 Op. O.L.C. 193 (2009) (2) Four members appointed by the President after considering the recommendations of the Board of Trustees of the Ronald Reagan Foundation. (3) Two Members of the House of Representatives appointed by the Speaker of the House of Representatives. (4) One Member of the House of Representatives appointed by the minority leader of the House of Representatives. (5) Two Members of the Senate appointed by the majority leader of the Senate. (6) One Member of the Senate appointed by the minority leader of the Senate. H.R. 131, § 4(a). Six of the eleven members, therefore, would be members of Congress, appointed by other members of Congress. The Commission would have responsibility to (1) plan, develop, and carry out such activities as the Commission considers fitting and proper to honor Ronald Reagan on the occasion of the 100th anniversary of his birth; (2) provide advice and assistance to Federal, State, and local governmental agencies, as well as civic groups to carry out activities to honor Ronald Reagan on the occasion of the 100th anniversary of his birth; (3) develop activities that may be carried out by the Federal Government to determine whether the activities are fitting and proper to honor Ronald Reagan on the occasion of the 100th anniversary of his birth; and (4) submit to the President and Congress reports pursuant to section 7. Id. § 3. To fulfill these responsibilities, the Commission would be empowered to appoint an executive director and hire staff (id. § 5(a)–(b)), to “procure temporary and intermittent services” of experts and consultants (id. § 5(e)), and to “enter into contracts with and compensate government and private agencies or persons” (id. § 6(f)). Positions on the Commission would be uncompensated (id. § 4(f)) and would last until the duties of the Commission are complete, “but not later than May 30, 2011” (id. § 8(a)). 194 Participation of Members of Congress in the Ronald Reagan Centennial Commission II. Legislation of this nature, creating a commemorative commission composed of representatives of multiple branches, has ample historical precedent. 1 It is not unconstitutional for such commissions to perform advisory functions. Nor is there any constitutional problem with representatives of multiple branches participating in ceremonial events. Congress also possesses the authority to plan, develop and carry out ceremonial activities of its own that are clearly in aid of the functions of the Legislative Branch. 2 However, when the responsibilities of members of hybrid commissions extend beyond providing advice or recommendations to the Executive Branch, or participating in ceremonial activities, to exercising See, e.g., Pub. L. No. 91-332, § 2(a), 84 Stat. 427 (1970) (creating a National Parks Centennial Commission, consisting of four members of the Senate appointed by the President of the Senate; four members of the House appointed by the Speaker of the House; the Secretary of the Interior; and six presidential appointees); Pub. L. No. 98-101, § 4(a), 97 Stat. 719 (1983) (creating a Commission on the Bicentennial of the Constitution, consisting of 20 presidential appointees; the Chief Justice of the United States; the President pro tempore of the Senate; and the Speaker of the House); Pub. L. No. 99-624, § 4(a), 100 Stat. 3497 (1986) (creating a Dwight David Eisenhower Centennial Commission, consisting of the President pro tempore of the Senate; the Speaker of the House; six Senators appointed by the President pro tempore of the Senate; six members of the House appointed by the Speaker; six Presidential appointees; and the Archivist of the United States); Pub. L. No. 105-389, § 4(a), 112 Stat. 3486 (1998) (creating a Centennial of Flight Commission, consisting of the Director of the National Air and Space Museum of the Smithsonian Institution; the Administrator of the National Aeronautics and Space Administration; the chairman of the First Flight Centennial Foundation of North Carolina; the chairman of the 2003 Committee of Ohio; the head of a United States aeronautical society; and the Administrator of the Federal Aviation Administration); Pub. L. No. 106408, § 303(b)(1), 114 Stat. 1782 (2000) (creating a National Wildlife Refuge System Centennial Commission, consisting of the Director of the United States Fish and Wildlife Service; up to ten persons appointed by the Secretary of the Interior; the chairman and ranking minority member of the Committee on Resources of the House of Representatives and of the Committee on Environment and Public Works of the Senate; and the congressional representatives of the Migratory Bird Conservation Commission). 2 See, e.g., Capitol Visitor Center Act, Pub. L. No. 110-437, § 402(b)(1), 122 Stat. 4983, 4991–92 (Oct. 20, 2008), to be codified at 2 U.S.C. § 2242(b)(1) (“In providing for the direction, supervision, and control of the Capitol Guide Service, the Architect of the Capitol, upon recommendation of the Chief Executive Officer, is authorized to . . . subject to the availability of appropriations, establish and revise such number of positions of Guide in the Capitol Guide Service as the Architect of the Capitol considers necessary to carry out effectively the activities of the Capitol Guide Service.”). 1 195 33 Op. O.L.C. 193 (2009) operational control over a statutorily prescribed national commemoration, then the Executive Branch has consistently raised constitutional objections. 3 Specifically, legislative involvement in the proposed Commission would be constitutionally problematic for several reasons. First, the Appointments Clause requires that “Officers of the United States” be appointed by the President with the Senate’s advice and consent or, in cases of inferior officers, either by that same process or by the President alone, by Courts of Law, or by Heads of Departments. U.S. Const. art. II, § 2, ¶ 2. An Officer of the United States is an appointee to an “office” whose duties constitute the exercise of “significant authority pursuant to the laws of the United States.” 4 3 Constitutionality of Resolution Establishing United States New York World’s Fair Commission, 39 Op. Att’y Gen. 61, 62 (1937) (Attorney General Cummings) (“In my opinion those provisions of the joint resolution establishing a Commission composed largely of members of the Congress and authorizing them to appoint a United States Commissioner General and two Assistant Commissioners for the New York World’s Fair, and also providing for the expenditure of the appropriation made by the resolution and for the administration of the resolution generally amount to an unconstitutional invasion of the province of the Executive”); H.R. Doc. No. 75-252, at 2 (1937) (message of President Roosevelt vetoing joint resolution that would have authorized federal participation in 1939 World’s Fair and quoting opinion of Attorney General Cummings above as basis); Statement on Signing the Bill Establishing a Commission on the Bicentennial of the United States Constitution, 2 Pub. Papers of Pres. Ronald Reagan 1390 (Sept. 29, 1983) (“I welcome the participation of the Chief Justice, the President pro tempore of the Senate, and the Speaker of the House of Representatives in the activities of the Commission [on the Bicentennial of the Constitution]. However, because of the constitutional impediments contained in the doctrine of the separation of powers, I understand that they will be able to participate only in ceremonial or advisory functions of the Commission, and not in matters involving the administration of the Act. Also, in view of the incompatibility clause of the Constitution, any Member of Congress appointed by me pursuant to Section 4(a)(1) of this Act may serve only in a ceremonial or advisory capacity.”); Appointments to the Commission on the Bicentennial of the Constitution, 8 Op. O.L.C. 200 (1984) (“Bicentennial Commission”) (proposing practical solution to constitutional concerns raised by presence of members of Congress on Commission on the Bicentennial of the Constitution). 4 Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam); see also United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1867) (“An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.”); The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 148 (1996) (“Dellinger Memo”) (“An appointee (1) to a position of employment (2) within the federal government (3) that 196 Participation of Members of Congress in the Ronald Reagan Centennial Commission For purposes of the Appointments Clause, an “office” “embraces the ideas of tenure, duration, emolument, and duties.” United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1867). The commissioners here would not receive compensation for their services (H.R. 131, § 4(f) (“Members shall serve without pay”)), and the positions they are to fill would exist for no longer than two years (id. § 8(a) (“The Commission may terminate on such date as the Commission may determine after it submits its final report pursuant to section 7(c), but not later than May 30, 2011”)). Nevertheless, the duties of the commissioners would not be “occasional and intermittent.” 5 They would be continuing during the period of time necessary for the exercise of the important government duties assigned to the Commission. In Morrison v. Olson, 487 U.S. 654 (1987), the Supreme Court held that it was “clear” that an “independent counsel” under the Ethics in Government Act of 1978, 28 U.S.C. §§ 591–599 (1982 & Supp. V)—a position that was temporary and case-specific, but expected to last for an extended period, with ongoing, continuous duties, and termination only upon a determination that all matters within the counsel’s jurisdiction were substantially complete—“is an ‘officer’ of the United States, not an ‘employee.’” Id. at 671 n.12. Consistent with this holding, our Office has concluded that members of an unpaid commission similar to the Reagan Commission would hold offices in the constitutional sense.6 carries significant authority pursuant to the laws of the United States is required to be an ‘Officer of the United States.’”). 5 See United States v. Germaine, 99 U.S. 508, 511–12 (1879) (“If we look to the nature of [the civil surgeon’s] employment, we think it equally clear that he is not an officer. . . . [T]he duties are not continuing and permanent, and they are occasional and intermittent.”) (emphasis in original); see also Auffmordt v. Hedden, 137 U.S. 310, 326–27 (1890) (“[The merchant appraiser] has no general functions, nor any employment which has any duration as to time, or which extends over any case further than as he is selected to act in that particular case. . . . His position is without tenure, duration, continuing emolument, or continuous duties . . . . Therefore, he is not an “officer,” within the meaning of the clause.”). 6 See, e.g., Memorandum for L. Anthony Sutin, Acting Assistant Attorney General, Office of Legislative Affairs, from William Michael Treanor, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Centennial of Flight Commission—Airport Improvement Program Reauthorization, H.R. 4057, at 1 (Oct. 1, 1998) (“Centennial of Flight Commission”) (objecting on Appointments Clause grounds to H.R. 4057); see also H.R. 4057, 105th Cong. § 804(c)(1) (engrossed amendment as agreed to by Senate, Sept. 25, 1998) (providing that “members of the Commission shall serve without pay or com- 197 33 Op. O.L.C. 193 (2009) Moreover, the Commissioners would exercise significant governmental authority. Although some of the functions of the Commission here would be merely advisory (H.R. 131, § 3(2)–(4)), the Commission would also have the authority to “plan, develop, and carry out such activities as the Commission considers fitting and proper to honor Ronald Reagan” (id. § 3(1)). This Office has previously indicated that “carrying out a limited number of commemorative events and projects” is a “clearly executive” function and that the planning and development of commemorative events constitutes “significant authority” for Appointments Clause purposes if the plans are final (i.e., not just advisory). 7 In light of these precedents, we conclude the Commissioners would be Officers of the United States. Therefore the bill’s prescription that members of Congress shall appoint certain of the Commissioners would violate the Appointments Clause. An additional constitutional problem arises from the fact that six of the Commissioners would not only be appointed by members of Congress but would themselves be members of Congress. The Ineligibility Clause states that “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time.” U.S. Const. art. I, § 6, cl. 2. As we have previously advised, “[t]he most common problem under the Ineligibility Clause arises from legislation that creates a commission or other entity and simultaneously requires that certain of its members be Representatives or Senators, either ex officio or by selection or nomination by the congressional leadership. Unless the congressional members participate only in advisory or ceremonial roles, or the commission itself pensation”); cf. Offices of Trust, 15 Op. Att’y Gen. 187, 188 (1877) (concluding, for purposes of the Emoluments Clause and with respect to commissioners of the United States Centennial Commission, that “though their duties are of a special and temporary character, they may properly be called officers of the United States during the continuance of their official functions”); In re Corliss, 11 R.I. 639 (1877) (holding that member of same Centennial Commission held “Office of Trust or Profit” under U.S. Const., art. II, § 1, and was therefore disqualified from serving as a presidential elector). 7 Bicentennial Commission, 8 Op. O.L.C. at 200; Centennial of Flight Commission, supra note 6, at 1 (“The Commission is also authorized . . . to plan and develop commemorative activities itself . . . . In accordance with prior precedent of this Office, these functions have been understood to encompass significant authority for purposes of the Appointments Clause.”). 198 Participation of Members of Congress in the Ronald Reagan Centennial Commission is advisory or ceremonial, the appointment of members of Congress to the commission would violate the Ineligibility Clause.” Dellinger Memo, 20 Op. O.L.C. at 160. Here, the legislation contemplates that Commissioners would not simply be participating in or advising on ceremonial events but that they would also be responsible for planning, developing, and carrying out such events as part of a national commemoration. In such circumstances, the Commission’s composition would run afoul of the Ineligibility Clause. Finally, independent of the concerns under the Appointments and Ineligibility Clauses, the Commission’s composition would raise constitutional concerns under the anti-aggrandizement principle. “[O]nce Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly—by passing new legislation.” Bowsher v. Synar, 478 U.S. 714, 733–34 (1986); see also INS v. Chadha, 462 U.S. 919 (1983). A statute may not give members of Congress, or congressional agents, the authority to perform Executive Branch functions. Accordingly, “designating a member of Congress to serve on a commission with any executive functions, 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.” Dellinger Memo, 20 Op. O.L.C. at 160 n.95 (citing FEC v. NRA Political Victory Fund, 6 F.3d 821 (D.C. Cir. 1993) (invalidating statute that authorized agents of Congress to be members of the Federal Election Commission)). This problem would persist, moreover, even if only a minority of Commissioners were members or agents of Congress, and even if the congressional members were not permitted to exercise voting authority. See NRA Political Victory Fund, 6 F.3d at 826–27 (members of Congress could not serve on the FEC even in non-voting capacity). 8 8 See also Memorandum for Robert Raben, Assistant Attorney General, Office of Legislative Affairs, from Evan Caminker, Deputy Assistant Attorney General, Office of Legal Counsel, Re: National Wildlife Refuge System Centennial Commemoration Act of 2000 (Aug. 11, 2000) (objecting on anti-aggrandizement grounds to statute appointing members of Congress to serve as non-voting members of commission with responsibility to develop and carry out plan to commemorate 100th anniversary of National Wildlife Refuge System). 199 33 Op. O.L.C. 193 (2009) To address these constitutional concerns, the functions of the Commission in section 3(1) should be limited to giving advice and making recommendations with respect to planning, developing and carrying out commemorative activities. In such an advisory capacity, the Commission could remain composed as it is under section 4(a) of the Act. The Act should then assign an Executive Branch official the responsibility to consider the advice of the Commission and then to “plan, develop and carry out such activities as [the official] considers fitting and proper to honor Ronald Reagan on the occasion of the 100th anniversary of his birth.” The Act could still require that any ceremonial events include a role for members of Congress. As long as operational control remains with the Executive Branch official, the Appointments Clause and Ineligibility Clause concerns would be assuaged, and there would be no impermissible congressional aggrandizement. MARTIN S. LEDERMAN Deputy Assistant Attorney General Office of Legal Counsel 200

Write a legal research memo on the following topic.

Immunity of the Former Counsel to the President From Compelled Congressional Testimony The former Counsel to the President is immune from compelled congressional testimony about matters that arose during her tenure as Counsel to the President and that relate to her official duties in that capacity and is not required to appear in response to a subpoena to testify about such matters. July 10, 2007 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT You have asked whether Harriet Miers, the former Counsel to the President, is legally required to appear and provide testimony in response to a subpoena issued by the Committee on the Judiciary of the House of Representatives. The Committee, we understand, seeks testimony from Ms. Miers about matters arising during her tenure as Counsel to the President and relating to her official duties in that capacity. Specifically, the Committee wishes to ask Ms. Miers about the decision of the Justice Department to request the resignations of several United States Attorneys in 2006. See Letter for Harriet E. Miers, from John Conyers, Jr., Chairman, House Committee on the Judiciary (June 13, 2007). For the reasons discussed below, we believe that Ms. Miers is immune from compulsion to testify before the Committee on this matter and, therefore, is not required to appear to testify about this subject. Since at least the 1940s, administrations of both political parties have taken the position that “‘the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee.’” Assertion of Executive Privilege With Respect to Clemency Decision, 23 Op. O.L.C. 1, 4 (1999) (opinion of Attorney General Janet Reno) (quoting Memorandum for All Heads of Offices, Divisions, Bureaus and Boards of the Department of Justice, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Executive Privilege at 5 (May 23, 1977)). This immunity “is absolute and may not be overborne by competing congressional interests.” Id. Assistant Attorney General William Rehnquist succinctly explained this position in a 1971 memorandum: The President and his immediate advisers—that is, those who customarily meet with the President on a regular or frequent basis— should be deemed absolutely immune from testimonial compulsion by a congressional committee. They not only may not be examined with respect to their official duties, but they may not even be compelled to appear before a congressional committee. Memorandum for John D. Ehrlichman, Assistant to the President for Domestic Affairs, from William H. Rehnquist, Assistant Attorney General, Office of Legal 191 Opinions of the Office of Legal Counsel in Volume 31 Counsel, Re: Power of Congressional Committee to Compel Appearance or Testimony of “White House Staff” at 7 (Feb. 5, 1971). In a 1999 opinion for President Clinton, Attorney General Reno concluded that the Counsel to the President “serves as an immediate adviser to the President and is therefore immune from compelled congressional testimony.” Assertion of Executive Privilege, 23 Op. O.L.C. at 4. The rationale for the immunity is plain. The President is the head of one of the independent branches of the federal government. If a congressional committee could force the President’s appearance, fundamental separation of powers principles—including the President’s independence and autonomy from Congress—would be threatened. As the Office of Legal Counsel has explained, “[t]he President is a separate branch of government. He may not compel congressmen to appear before him. As a matter of separation of powers, Congress may not compel him to appear before it.” Memorandum for Edward C. Schmults, Deputy Attorney General, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel at 2 (July 29, 1982) (“Olson Memorandum”). The same separation of powers principles that protect a President from compelled congressional testimony also apply to senior presidential advisers. Given the numerous demands of his office, the President must rely upon senior advisers. As Attorney General Reno explained, “in many respects, a senior advisor to the President functions as the President’s alter ego, assisting him on a daily basis in the formulation of executive policy and resolution of matters affecting the military, foreign affairs, and national security and other aspects of his discharge of his constitutional responsibilities.” Assertion of Executive Privilege, 23 Op. O.L.C. at 5. 1 Thus, “[s]ubjecting a senior presidential advisor to the congressional subpoena power would be akin to requiring the President himself to appear before Congress on matters relating to the performance of his constitutionally assigned functions.” Id.; see also Olson Memorandum at 2 (“The President’s close advisors are an extension of the President.”). 2 The fact that Ms. Miers is a former Counsel to the President does not alter the analysis. Separation of powers principles dictate that former presidents and former senior presidential advisers remain immune from compelled congressional 1 In an analogous context, the Supreme Court held that the immunity provided by the Speech or Debate Clause of the Constitution to members of Congress also applies to congressional aides, even though the Clause refers only to “Senators and Representatives.” U.S. Const. art I, § 6, cl. 1. In justifying expanding the immunity, the Supreme Court reasoned that “the day to day work of such aides is so critical to the Members’ performance that they must be treated as the latter’s alter egos.” Gravel v. United States, 408 U.S. 606, 616–17 (1972). Any other approach, the Court warned, would cause the constitutional immunity to be “inevitably . . . diminished and frustrated.” Id. at 617. 2 See also History of Refusals by Executive Branch Officials to Provide Information Demanded by Congress, 6 Op. O.L.C. 751, 771–72 (1982) (documenting how President Truman directed Assistant to the President John Steelman not to respond to a congressional subpoena seeking information about confidential communications between the President and one of his “principal aides”). 192 Immunity of Former Counsel to President From Compelled Congressional Testimony testimony about official matters that occurred during their time as President or senior presidential advisers. Former President Truman explained the need for continuing immunity in November 1953, when he refused to comply with a subpoena directing him to appear before the House Committee on Un-American Activities. In a letter to that committee, he warned that “if the doctrine of separation of powers and the independence of the Presidency is to have any validity at all, it must be equally applicable to a President after his term of office has expired when he is sought to be examined with respect to any acts occurring while he is President.” Texts of Truman Letter and Velde Reply, N.Y. Times, Nov. 13, 1953, at 14 (reprinting November 12, 1953 letter by President Truman). “The doctrine would be shattered, and the President, contrary to our fundamental theory of constitutional government, would become a mere arm of the Legislative Branch of the Government if he would feel during his term of office that his every act might be subject to official inquiry and possible distortion for political purposes.” Id. In a radio speech to the Nation, former President Truman further stressed that it “is just as important to the independence of the Executive that the actions of the President should not be subjected to the questioning by the Congress after he has completed his term of office as that his actions should not be questioned while he is serving as President.” Text of Address by Truman Explaining to Nation His Actions in the White Case, N.Y. Times, Nov. 17, 1953, at 26. Because a presidential adviser’s immunity is derivative of the President’s, former President Truman’s rationale directly applies to former presidential advisers. We have previously opined that because an “immediate assistant to the President may be said to serve as his alter ego . . . the same considerations that were persuasive to former President Truman would apply to justify a refusal to appear [before a congressional committee] by . . . a former [senior presidential adviser], if the scope of his testimony is to be limited to his activities while serving in that capacity.” Memorandum for the Counsel to the President, from Roger C. Cramton, Assistant Attorney General, Office of Legal Counsel, Re: Availability of Executive Privilege Where Congressional Committee Seeks Testimony of Former White House Official on Advice Given President on Official Matters at 6 (Dec. 21, 1972). Accordingly, we conclude that Ms. Miers is immune from compelled congressional testimony about matters, such as the U.S. Attorney resignations, that arose during her tenure as Counsel to the President and that relate to her official duties in that capacity, and therefore she is not required to appear in response to a subpoena to testify about such matters. STEVEN G. BRADBURY Principal Deputy Assistant Attorney General Office of Legal Counsel 193

Write a legal research memo on the following topic.

Application of the Violence Against Women Act When the Offender and Victim Are the Same Sex The criminal provisions of the Violence Against Women Act apply to otherwise-covered conduct when the offender and victim are the same sex. April 27, 2010 MEMORANDUM OPINION FOR THE ACTING DEPUTY ATTORNEY GENERAL You have asked us whether the criminal provisions of the Violence Against Women Act (“VAWA”) apply to otherwise-covered conduct when the offender and victim are of the same sex. VAWA includes three criminal provisions: 18 U.S.C. § 2261 (2006), addressing interstate domestic violence; 18 U.S.C. § 2261A (2006), addressing interstate stalking; and 18 U.S.C. § 2262 (2006), addressing the interstate violation of a protection order. Consistent with the views we received, we conclude that each of these provisions applies when the offender and the victim are the same sex. 1 I. The first of VAWA’s three criminal provisions, section 2261, addresses certain specified types of interstate domestic violence. Subsection (a)(1) We received views from the Criminal and Civil Rights Divisions, the Office on Violence Against Women, and the Executive Office for United States Attorneys. See E-mail for Jeannie S. Rhee, Deputy Assistant Attorney General, Office of Legal Counsel, from Mythili Raman, Principal Deputy Assistant Attorney General, Criminal Division (Feb. 23, 2010) (attaching Memorandum for Lanny A. Breuer, Assistant Attorney General, Criminal Division, from P. Kevin Carwile, Chief, Gang Unit, and Michael S. Warbel, Trial Attorney, Criminal Division, Re: Criminal Prosecution of Same-Sex Partners Under the Violence Against Women Act (Feb. 19, 2010)); E-mail for David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel, from Samuel Bagenstos, Principal Deputy Assistant Attorney General, Civil Rights Division (Apr. 8, 2010); Memorandum for Jeannie S. Rhee, Deputy Assistant Attorney General, Office of Legal Counsel, from Jennifer E. Kaplan, Attorney Advisor, Office on Violence Against Women, Re: Application of the Violence Against Women Act to Same-Sex Dating Violence (Mar. 24, 2010); E-mail for Jeannie S. Rhee, Deputy Assistant Attorney General, Office of Legal Counsel, from Margaret S. Groban, Assistant United States Attorney, Office of Legal Programs and Policy, Executive Office for United States Attorneys (Feb. 10, 2010). 1 147 34 Op. O.L.C. 147 (2010) makes it a federal crime to travel in interstate or foreign commerce, to enter or leave Indian country, or to travel within the special maritime or territorial jurisdiction of the United States “with the intent to kill, injure, harass, or intimidate a spouse, intimate partner, or dating partner” if, in the course of or as a result of such travel, the offender “commits or attempts to commit a crime of violence against that spouse, intimate partner, or dating partner.” 18 U.S.C. § 2261(a)(1) (emphases added). Subsection (a)(2) makes it a federal crime to “cause[] a spouse, intimate partner, or dating partner to travel in interstate or foreign commerce or to enter or leave Indian country by force, coercion, duress, or fraud” and, during, as a result of, or to facilitate such conduct or travel, to “commit[] or attempt[] to commit a crime of violence against that spouse, intimate partner, or dating partner.” Id. § 2261(a)(2) (emphases added). Section 2261 was part of VAWA as originally enacted in 1994, but at that time it covered only victims who were a “spouse or intimate partner” of the offender. The 2006 VAWA amendments added the term “dating partner” to both paragraphs described above. Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 116(a), 119 Stat. 2960, 2988 (2006). Second, section 2261A addresses interstate stalking. Subsection (1) makes it a federal crime to travel in interstate or foreign commerce, to enter or leave Indian country, or to travel within the special maritime or territorial jurisdiction of the United States “with the intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate another person” if, in the course of or as a result of such travel, the offender “places that person in reasonable fear of the death of, or serious bodily injury to, or causes substantial emotional distress to that person, a member of the immediate family (as defined in section 115) 2 of that person, or the spouse or intimate partner of that person.” 18 U.S.C. § 2261A(1) (emphases added). Subsection (2) makes it a federal crime to, with certain specified intent, “use[] the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to” “a 2 Section 115 defines “immediate family member” as an individual’s “spouse, parent, brother or sister, child or person to whom he stands in loco parentis” or “any other person living in his household and related to him by blood or marriage.” 18 U.S.C. § 115 (2006). 148 Application of Violence Against Women Act When Offender and Victim Are Same Sex person in another State or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States,” or to place “that person in reasonable fear of the death of, or serious bodily injury to,” “that person,” “a member of the immediate family (as defined in section 115) of that person,” or “a spouse or intimate partner of that person.” Id. § 2261A(2) (emphases added). When first enacted in the 1996 amendments to VAWA, section 2261A covered only the target of the stalking and that person’s immediate family members. National Defense Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201, § 1069, 110 Stat. 2422, 2655 (1996). The 2000 VAWA amendments added subsection (2) and the phrase “spouse or intimate partner” after “immediate family” in subsection (1). Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, § 1107(b)(1), 114 Stat. 1464, 1498 (2000). Finally, section 2262 addresses the interstate violation of a protection order. 3 Subsection (a)(1) makes it a federal crime to travel in interstate or foreign commerce, to enter or leave Indian country, or to travel within the special maritime and territorial jurisdiction of the United States “with the intent to engage in conduct that violates the portion of a protection order that prohibits or provides protection against violence, threats, or harassment against, contact or communication with, or physical proximity to, another person, or that would violate such a portion of a protection order in the jurisdiction in which the order was issued,” and to subsequently engage in such conduct. 18 U.S.C. § 2262(a)(1) (emphasis added). Subsection (a)(2) makes it a federal crime to “cause[] another person to travel in interstate or foreign commerce or to enter or leave Indian country by force, coercion, duress, or fraud” if, in the course of, as a result of, or to facilitate such conduct or travel, the offender engages in conduct described in subsection (a)(1). Id. § 2262(a)(2) (emphasis added). Section 2262 was part of VAWA as originally enacted in 1994, but subsection (a)(2) applied at that time only to “a spouse or intimate partner” of the offender. The 2000 amendments to VAWA substituted “another person” for “a spouse or intimate partner.” Pub. L. No. 106-386, § 1107(c), 114 Stat. at 1498–99. These amendments also changed the wording of subsection (a)(1) to refer to “another person” rather than to “the person or persons for whom the protection order was issued.” Id. 3 For purposes of VAWA, “protection order” is defined in 18 U.S.C. § 2266(5) (2006). 149 34 Op. O.L.C. 147 (2010) II. We begin with an analysis of similar language that is used in sections 2261A and 2262, which cover interstate stalking and the interstate violation of a protection order, to define the class of victims to which they apply. Each provision applies to covered acts committed by an offender against “another person,” although 2261A also applies in some circumstances to acts that affect a “spouse or intimate partner of that person,” a point that we discuss further below. With respect to the meaning of “another person,” the analysis is straightforward. The plain meaning of the term encompasses individuals of both sexes, regardless of their relationship to the offender, and nothing in the text or the structure or purpose of VAWA indicates that a departure from plain meaning would be appropriate. It is true that the statute is entitled the Violence Against Women Act, but other provisions of the Act make clear it applies to conduct perpetrated against male, as well as female, victims, see, e.g., 42 U.S.C. § 13925(b)(8) (2006) (providing, with respect to VAWA’s grant conditions, that “[n]othing in this subchapter shall be construed to prohibit male victims of domestic violence, dating violence, sexual assault, and stalking from receiving benefits and services under this subchapter”), and courts have so held, see, e.g., United States v. Bell, 303 F.3d 1187 (9th Cir. 2002) (male victims of interstate stalking); see also United States v. Page, 167 F.3d 325, 326 (6th Cir. 1999) (Moore, J., concurring) (“While Congress was particularly concerned with those crimes that ‘disproportionately burden women,’ S. Rep. No. 103-138, at 37 [(1993)], [VAWA’s] criminal provisions are genderneutral, and enforcement has been gender-neutral as well.”). Courts have also held that sections 2261A and 2262 apply when the offender and victim are the same sex, see, e.g., Bell, 303 F.3d at 1189 (man convicted of stalking several men believed to have been government agents); United States v. Wills, 346 F.3d 476 (4th Cir. 2003) (man convicted of stalking man who was a government witness against him); United States v. Nedd, 262 F.3d 85 (1st Cir. 2001) (man convicted of violating protection order covering an unrequited love interest and her father), and regardless of whether the offender and victim are involved in a romantic relationship, see, e.g., United States v. Fullmer, 584 F.3d 132 (3d Cir. 2009) (animal rights activists convicted of stalking individuals associated with a compa150 Application of Violence Against Women Act When Offender and Victim Are Same Sex ny that conducted animal testing). We thus conclude that, in referring to “another person,” sections 2261A and 2262 apply to otherwise-covered conduct when the offender and victim are the same sex, and irrespective of the relationship between the offender and victim. Section 2261A also applies when an offender places the target of the stalking in “reasonable fear of the death of, or serious bodily injury to,” the target’s “spouse or intimate partner” or “causes substantial emotional distress” to the target’s “spouse or intimate partner.” For purposes of VAWA, the term “spouse” cannot be read to cover an individual who is the same sex as the target of the stalking, even if they are married under state law, because the Defense of Marriage Act (“DOMA”) provides that “[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, . . . the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 1 U.S.C. § 7 (2006). 4 DOMA does not, however, address the additional term “intimate partner,” which, for purposes of section 2261A, is defined in 18 U.S.C. § 2266(7) (2006). That section provides that the composite phrase “spouse or intimate partner” means “a spouse or former spouse of the target of the stalking, a person who shares a child in common with the target of the stalking, and a person who cohabits or has cohabited as a spouse with the target of the stalking”; “a person who is or has been in a social relationship of a romantic or intimate nature with the target of the stalking, as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship”; or “any other person similarly situated to a spouse who is protected 4 Section 2261A also applies when an offender places the target of the stalking in reasonable fear of the death of, or serious bodily injury to, or causes substantial emotional distress to a member of the target’s “immediate family,” which, as defined in 18 U.S.C. § 115, includes a spouse. See supra note 2. This section thus applies to the target’s spouse through two separate references—“immediate family” and “spouse or intimate partner”— a redundancy that is explained, at least in part, by the fact that section 115’s definition is not specific to VAWA and that the term “spouse or intimate partner,” added to section 2261A as an amendment after its original enactment, occurs throughout VAWA and is defined as a composite phrase. See 18 U.S.C. § 2266(7) (2006). DOMA’s limitation on the term “spouse” applies to section 115 as well as to the phrase “spouse or intimate partner.” 151 34 Op. O.L.C. 147 (2010) by the domestic or family violence laws of the State or tribal jurisdiction in which the injury occurred or where the victim resides.” 5 Two parts of this composite definition—namely, “a person who shares a child in common with the target of the stalking” and “a person who is or has been in a social relationship of a romantic or intimate nature with the target of the stalking”—refer to a “person” without any kind of spousal relationship to the target of the stalking and thus provide content to what it means to be an “intimate partner.” The unqualified use of the term “person” is significant, as its plain meaning, for the reasons set forth above, is best read to be encompassing. And there is nothing else in section 2266(7) that provides a basis for reading the term “person” more narrowly in this context to exclude an individual who is the same sex as the target of the stalking. Two individuals who are the same sex may, for example, “shar[e] a child in common,” see, e.g., Adar v. Smith, 597 F.3d 697 (5th Cir. 2010); Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007), or be involved in a “social relationship of a romantic or intimate nature” for purposes of that subsection, see, e.g., Lawrence v. Texas, 539 U.S. 558 (2003); Baker v. State, 744 A.2d 864 (Vt. 1999). And although the definition of “intimate partner” refers to the “type of relationship” as one criterion for determining whether a relationship is a “social relationship of a romantic or intimate nature,” there is no indication Congress intended by that vague phrase to require such relationships to be heterosexual. Indeed, the phrase is most naturally read to refer to indicia that the relationship is or was “romantic or intimate,” as the statute prescribes. 6 Thus, based on the The 2006 VAWA amendments added the reference to individuals in social relationships of a romantic or intimate nature. Pub. L. No. 109-162, § 106(d), 119 Stat. at 2982. 6 Although “a word may be known by the company it keeps,” Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 287 (2010) (internal quotation marks omitted), the fact that VAWA joins the term “spouse” with the term “intimate partner” in one combined definition is not a ground for concluding that DOMA’s restriction on the former term should be applied to the latter term so as to preclude an “intimate partner” from being the same sex as the offender. The noscitur a sociis canon applies when a potentially broad term appears as part of “some sort of gathering with a common feature to extrapolate” in order to give consistent meaning to the statutory terms that are so gathered. S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 379–80 (2006); see also Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226 (2008); Gutierrez v. Ada, 528 U.S. 250, 254–58 (2000) (applying the canon to limit the phrase “any election” to gubernatorial elections when the phrase was surrounded by six specific references to gubernatorial elections). Simply put, the terms “spouse” and 5 152 Application of Violence Against Women Act When Offender and Victim Are Same Sex statutory definition, a person who is the same sex as the target of the stalking may be an “intimate partner” of the target for purposes of section 2261A. The last of VAWA’s criminal provisions, section 2261, is limited in reach to those victims who are the “spouse, intimate partner, or dating partner” of the offender. Despite this difference from sections 2261A and 2262, we conclude that section 2261, too, applies when the victim and the offender are the same sex. The analysis that leads us to this conclusion is essentially the same as that set forth above. The term “spouse” may not be read to include an individual who is the same sex as the offender because of DOMA, but 18 U.S.C. § 2266(7) defines the phrase “spouse or intimate partner” 7 for purposes of section 2261 in materially identical terms to the definition that governs section 2261A. An “intimate partner” of the offender thus includes “a person who shares a child in common with the abuser” and “a person who is or has been in a social relationship of a romantic or intimate nature with the abuser, as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.” Because, as we have noted, persons who are the same sex may share a child in common or be in a social relationship of a romantic or intimate nature, the term “intimate partner” in section 2261 includes a victim who is the same sex as the abuser. With respect to section 2261, therefore, that leaves only the term “dating partner” to be examined. The term is defined in 18 U.S.C. § 2266(10) similarly to one portion of section 2266(7)’s definition of “spouse or intimate partner.” Section 2266(10) provides that a “dating partner” is “a “intimate partner,” despite their appearance together in the definitional section of VAWA, do not constitute the requisite sort of “gathering with a common feature” to which the noscitur canon could apply. See, e.g., Graham County, 559 U.S. at 288–89 (declining to apply the canon to the adjectives “congressional, administrative, or Government Accounting Office” in order to limit the middle term to federal, rather than all governmental, administrative reports). 7 Section 2261, as originally enacted, included the exact phrase “spouse or intimate partner,” but the 2006 VAWA amendments replaced that phrase with “spouse, intimate partner, or dating partner.” Despite the fact that the terms “spouse” and “intimate partner” are now separated by a comma rather than by the word “or” in section 2261, it is clear that the definition in section 2266(7) (“spouse or intimate partner”) continues to govern the meaning of the two terms. 153 34 Op. O.L.C. 147 (2010) person who is or has been in a social relationship of a romantic or intimate nature with the abuser,” and it specifies that “[t]he existence of such a relationship is based on a consideration of” “the length of the relationship,” “the type of relationship,” and “the frequency of interaction between the persons involved in the relationship.” 8 As we have explained, materially identical language supports the conclusion that an “intimate partner” may be the same sex as the abuser, and we see no reason for reaching a different conclusion as to this language when it defines the term “dating partner.” In both cases, the relevant definitions contained in section 2266 state that the terms “intimate partner” and “dating partner” in section 2261 refer to a “person” with a particular sort of relationship to the abuser. They do not further suggest any limitation based on the sex of either the abuser or the victim or any requirement that the abuser and the victim not be the same sex. The limited legislative history that bears on the pertinent VAWA provisions is consistent with our reading of the terms “intimate partner” and “dating partner.” The 2006 VAWA amendments added the definition of “dating partner” and amended the definition of “spouse or intimate partner” for purposes of VAWA’s criminal provisions. Those amendments also sought to strengthen the health care system’s response to domestic violence, dating violence, sexual assault, and stalking. A finding pertaining to these latter changes discusses the “health-related costs of intimate partner violence” and notes that “[t]hirty-seven percent of all women who sought care in hospital emergency rooms for violence-related injuries were injured by a current or former spouse, boyfriend, or girlfriend.” Pub. L. No. 109-162, § 501(1)–(2), 119 Stat. at 3023 (emphases added). This finding’s reference to “intimate partner” violence between women and their girlfriends comports with our conclusion that two individuals 8 The 2006 VAWA amendments introduced the term “dating partner” and this attendant definition, Pub. L. No. 109-162, § 116(b), 119 Stat. at 2989, although the 2000 amendments had previously used the term “dating violence” in several of VAWA’s noncriminal provisions and had defined that term in nearly identical language, see, e.g., Pub. L. No. 106-386, § 1108, 114 Stat. at 1500 (“[T]he term ‘dating violence’ means violence committed by a person—(A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) the length of the relationship; (ii) the type of relationship; and (iii) the frequency of interaction between the persons involved in the relationship.”). 154 Application of Violence Against Women Act When Offender and Victim Are Same Sex who are the same sex may be considered “intimate partner[s]” for purposes of VAWA. Similarly, H.R. 1248, 106th Cong. (1999), which became Public Law 106-386, initially defined “domestic violence” for purposes of VAWA’s grant programs as including “acts or threats of violence, not including acts of self-defense, committed . . . by a person who is or has been in a continuing social relationship of a romantic or intimate nature with the victim.” H.R. 1248, § 2. During Committee markups, a manager’s amendment changed the definition to exclude the reference to those persons in romantic or intimate relationships. Instead, a separate definition of “dating violence” was added to select VAWA programs. That definition tracks the definition of “dating partner” in the 2006 amendments, covering violence committed by a person “who is or has been in a social relationship of a romantic or intimate nature” as determined by the length of relationship, type of relationship, and frequency of interaction between the persons. See supra note 8. In published additional views, sixteen members of Congress expressed concern that dating violence had not been included in all of VAWA’s grant programs. In doing so, those members stated that dating violence encompassed violence in same-sex relationships. See H.R. Rep. No. 106-891, pt. 1, at 85 (2000) (Additional Views) (“One of the most serious concerns we have with the committee-passed bill is its failure to expand the scope of VAWA funding to include programs designed to combat dating violence, including violence in same-sex relationships. As introduced, H.R. 1248 would have amended VAWA so that the term ‘domestic violence’ would have included dating violence, and violence between same-sex couples, a position which is strongly supported by all of the major domestic violence and sexual assault groups, the Department of Justice, the National Association of Attorneys General, and the U.S. Conference of Mayors.” (footnotes omitted)). In other words, the additional views endorsed the position that a “social relationship of a romantic or intimate nature” includes such a relationship between two individuals who are the same sex. Nothing elsewhere in the House Report calls this reading into question. Subsequently, in the 2006 VAWA amendments Congress added the “social relationship of a romantic or intimate nature” language to VAWA’s criminal provisions, defining both “intimate partner” and “dating partner” in terms of such relationships. The legislative history of this phrase in the 2000 House Report is thus con155 34 Op. O.L.C. 147 (2010) sistent with reading the terms “intimate partner[s]” and “dating partner[s]” for purposes of section 2261, as amended, to include two individuals who are the same sex. III. The text, relevant case law, and legislative history all support the conclusion that VAWA’s three criminal provisions, 18 U.S.C. §§ 2261, 2261A, and 2262, apply to otherwise-covered conduct when the offender and victim are the same sex. And the views we have received reach the same conclusion. Thus, for the reasons set forth above, we conclude that each of these provisions apply when the offender and the victim are the same sex. DAVID J. BARRON Acting Assistant Attorney General Office of Legal Counsel 156

Write a legal research memo on the following topic.

Application of the Violence Against Women Act When the Offender and Victim Are the Same Sex The criminal provisions of the Violence Against Women Act apply to otherwise-covered conduct when the offender and victim are the same sex. April 27, 2010 MEMORANDUM OPINION FOR THE ACTING DEPUTY ATTORNEY GENERAL You have asked us whether the criminal provisions of the Violence Against Women Act (“VAWA”) apply to otherwise-covered conduct when the offender and victim are of the same sex. VAWA includes three criminal provisions: 18 U.S.C. § 2261 (2006), addressing interstate domestic violence; 18 U.S.C. § 2261A (2006), addressing interstate stalking; and 18 U.S.C. § 2262 (2006), addressing the interstate violation of a protection order. Consistent with the views we received, we conclude that each of these provisions applies when the offender and the victim are the same sex. 1 I. The first of VAWA’s three criminal provisions, section 2261, addresses certain specified types of interstate domestic violence. Subsection (a)(1) We received views from the Criminal and Civil Rights Divisions, the Office on Violence Against Women, and the Executive Office for United States Attorneys. See E-mail for Jeannie S. Rhee, Deputy Assistant Attorney General, Office of Legal Counsel, from Mythili Raman, Principal Deputy Assistant Attorney General, Criminal Division (Feb. 23, 2010) (attaching Memorandum for Lanny A. Breuer, Assistant Attorney General, Criminal Division, from P. Kevin Carwile, Chief, Gang Unit, and Michael S. Warbel, Trial Attorney, Criminal Division, Re: Criminal Prosecution of Same-Sex Partners Under the Violence Against Women Act (Feb. 19, 2010)); E-mail for David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel, from Samuel Bagenstos, Principal Deputy Assistant Attorney General, Civil Rights Division (Apr. 8, 2010); Memorandum for Jeannie S. Rhee, Deputy Assistant Attorney General, Office of Legal Counsel, from Jennifer E. Kaplan, Attorney Advisor, Office on Violence Against Women, Re: Application of the Violence Against Women Act to Same-Sex Dating Violence (Mar. 24, 2010); E-mail for Jeannie S. Rhee, Deputy Assistant Attorney General, Office of Legal Counsel, from Margaret S. Groban, Assistant United States Attorney, Office of Legal Programs and Policy, Executive Office for United States Attorneys (Feb. 10, 2010). 1 147 34 Op. O.L.C. 147 (2010) makes it a federal crime to travel in interstate or foreign commerce, to enter or leave Indian country, or to travel within the special maritime or territorial jurisdiction of the United States “with the intent to kill, injure, harass, or intimidate a spouse, intimate partner, or dating partner” if, in the course of or as a result of such travel, the offender “commits or attempts to commit a crime of violence against that spouse, intimate partner, or dating partner.” 18 U.S.C. § 2261(a)(1) (emphases added). Subsection (a)(2) makes it a federal crime to “cause[] a spouse, intimate partner, or dating partner to travel in interstate or foreign commerce or to enter or leave Indian country by force, coercion, duress, or fraud” and, during, as a result of, or to facilitate such conduct or travel, to “commit[] or attempt[] to commit a crime of violence against that spouse, intimate partner, or dating partner.” Id. § 2261(a)(2) (emphases added). Section 2261 was part of VAWA as originally enacted in 1994, but at that time it covered only victims who were a “spouse or intimate partner” of the offender. The 2006 VAWA amendments added the term “dating partner” to both paragraphs described above. Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 116(a), 119 Stat. 2960, 2988 (2006). Second, section 2261A addresses interstate stalking. Subsection (1) makes it a federal crime to travel in interstate or foreign commerce, to enter or leave Indian country, or to travel within the special maritime or territorial jurisdiction of the United States “with the intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate another person” if, in the course of or as a result of such travel, the offender “places that person in reasonable fear of the death of, or serious bodily injury to, or causes substantial emotional distress to that person, a member of the immediate family (as defined in section 115) 2 of that person, or the spouse or intimate partner of that person.” 18 U.S.C. § 2261A(1) (emphases added). Subsection (2) makes it a federal crime to, with certain specified intent, “use[] the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to” “a 2 Section 115 defines “immediate family member” as an individual’s “spouse, parent, brother or sister, child or person to whom he stands in loco parentis” or “any other person living in his household and related to him by blood or marriage.” 18 U.S.C. § 115 (2006). 148 Application of Violence Against Women Act When Offender and Victim Are Same Sex person in another State or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States,” or to place “that person in reasonable fear of the death of, or serious bodily injury to,” “that person,” “a member of the immediate family (as defined in section 115) of that person,” or “a spouse or intimate partner of that person.” Id. § 2261A(2) (emphases added). When first enacted in the 1996 amendments to VAWA, section 2261A covered only the target of the stalking and that person’s immediate family members. National Defense Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201, § 1069, 110 Stat. 2422, 2655 (1996). The 2000 VAWA amendments added subsection (2) and the phrase “spouse or intimate partner” after “immediate family” in subsection (1). Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, § 1107(b)(1), 114 Stat. 1464, 1498 (2000). Finally, section 2262 addresses the interstate violation of a protection order. 3 Subsection (a)(1) makes it a federal crime to travel in interstate or foreign commerce, to enter or leave Indian country, or to travel within the special maritime and territorial jurisdiction of the United States “with the intent to engage in conduct that violates the portion of a protection order that prohibits or provides protection against violence, threats, or harassment against, contact or communication with, or physical proximity to, another person, or that would violate such a portion of a protection order in the jurisdiction in which the order was issued,” and to subsequently engage in such conduct. 18 U.S.C. § 2262(a)(1) (emphasis added). Subsection (a)(2) makes it a federal crime to “cause[] another person to travel in interstate or foreign commerce or to enter or leave Indian country by force, coercion, duress, or fraud” if, in the course of, as a result of, or to facilitate such conduct or travel, the offender engages in conduct described in subsection (a)(1). Id. § 2262(a)(2) (emphasis added). Section 2262 was part of VAWA as originally enacted in 1994, but subsection (a)(2) applied at that time only to “a spouse or intimate partner” of the offender. The 2000 amendments to VAWA substituted “another person” for “a spouse or intimate partner.” Pub. L. No. 106-386, § 1107(c), 114 Stat. at 1498–99. These amendments also changed the wording of subsection (a)(1) to refer to “another person” rather than to “the person or persons for whom the protection order was issued.” Id. 3 For purposes of VAWA, “protection order” is defined in 18 U.S.C. § 2266(5) (2006). 149 34 Op. O.L.C. 147 (2010) II. We begin with an analysis of similar language that is used in sections 2261A and 2262, which cover interstate stalking and the interstate violation of a protection order, to define the class of victims to which they apply. Each provision applies to covered acts committed by an offender against “another person,” although 2261A also applies in some circumstances to acts that affect a “spouse or intimate partner of that person,” a point that we discuss further below. With respect to the meaning of “another person,” the analysis is straightforward. The plain meaning of the term encompasses individuals of both sexes, regardless of their relationship to the offender, and nothing in the text or the structure or purpose of VAWA indicates that a departure from plain meaning would be appropriate. It is true that the statute is entitled the Violence Against Women Act, but other provisions of the Act make clear it applies to conduct perpetrated against male, as well as female, victims, see, e.g., 42 U.S.C. § 13925(b)(8) (2006) (providing, with respect to VAWA’s grant conditions, that “[n]othing in this subchapter shall be construed to prohibit male victims of domestic violence, dating violence, sexual assault, and stalking from receiving benefits and services under this subchapter”), and courts have so held, see, e.g., United States v. Bell, 303 F.3d 1187 (9th Cir. 2002) (male victims of interstate stalking); see also United States v. Page, 167 F.3d 325, 326 (6th Cir. 1999) (Moore, J., concurring) (“While Congress was particularly concerned with those crimes that ‘disproportionately burden women,’ S. Rep. No. 103-138, at 37 [(1993)], [VAWA’s] criminal provisions are genderneutral, and enforcement has been gender-neutral as well.”). Courts have also held that sections 2261A and 2262 apply when the offender and victim are the same sex, see, e.g., Bell, 303 F.3d at 1189 (man convicted of stalking several men believed to have been government agents); United States v. Wills, 346 F.3d 476 (4th Cir. 2003) (man convicted of stalking man who was a government witness against him); United States v. Nedd, 262 F.3d 85 (1st Cir. 2001) (man convicted of violating protection order covering an unrequited love interest and her father), and regardless of whether the offender and victim are involved in a romantic relationship, see, e.g., United States v. Fullmer, 584 F.3d 132 (3d Cir. 2009) (animal rights activists convicted of stalking individuals associated with a compa150 Application of Violence Against Women Act When Offender and Victim Are Same Sex ny that conducted animal testing). We thus conclude that, in referring to “another person,” sections 2261A and 2262 apply to otherwise-covered conduct when the offender and victim are the same sex, and irrespective of the relationship between the offender and victim. Section 2261A also applies when an offender places the target of the stalking in “reasonable fear of the death of, or serious bodily injury to,” the target’s “spouse or intimate partner” or “causes substantial emotional distress” to the target’s “spouse or intimate partner.” For purposes of VAWA, the term “spouse” cannot be read to cover an individual who is the same sex as the target of the stalking, even if they are married under state law, because the Defense of Marriage Act (“DOMA”) provides that “[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, . . . the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 1 U.S.C. § 7 (2006). 4 DOMA does not, however, address the additional term “intimate partner,” which, for purposes of section 2261A, is defined in 18 U.S.C. § 2266(7) (2006). That section provides that the composite phrase “spouse or intimate partner” means “a spouse or former spouse of the target of the stalking, a person who shares a child in common with the target of the stalking, and a person who cohabits or has cohabited as a spouse with the target of the stalking”; “a person who is or has been in a social relationship of a romantic or intimate nature with the target of the stalking, as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship”; or “any other person similarly situated to a spouse who is protected 4 Section 2261A also applies when an offender places the target of the stalking in reasonable fear of the death of, or serious bodily injury to, or causes substantial emotional distress to a member of the target’s “immediate family,” which, as defined in 18 U.S.C. § 115, includes a spouse. See supra note 2. This section thus applies to the target’s spouse through two separate references—“immediate family” and “spouse or intimate partner”— a redundancy that is explained, at least in part, by the fact that section 115’s definition is not specific to VAWA and that the term “spouse or intimate partner,” added to section 2261A as an amendment after its original enactment, occurs throughout VAWA and is defined as a composite phrase. See 18 U.S.C. § 2266(7) (2006). DOMA’s limitation on the term “spouse” applies to section 115 as well as to the phrase “spouse or intimate partner.” 151 34 Op. O.L.C. 147 (2010) by the domestic or family violence laws of the State or tribal jurisdiction in which the injury occurred or where the victim resides.” 5 Two parts of this composite definition—namely, “a person who shares a child in common with the target of the stalking” and “a person who is or has been in a social relationship of a romantic or intimate nature with the target of the stalking”—refer to a “person” without any kind of spousal relationship to the target of the stalking and thus provide content to what it means to be an “intimate partner.” The unqualified use of the term “person” is significant, as its plain meaning, for the reasons set forth above, is best read to be encompassing. And there is nothing else in section 2266(7) that provides a basis for reading the term “person” more narrowly in this context to exclude an individual who is the same sex as the target of the stalking. Two individuals who are the same sex may, for example, “shar[e] a child in common,” see, e.g., Adar v. Smith, 597 F.3d 697 (5th Cir. 2010); Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007), or be involved in a “social relationship of a romantic or intimate nature” for purposes of that subsection, see, e.g., Lawrence v. Texas, 539 U.S. 558 (2003); Baker v. State, 744 A.2d 864 (Vt. 1999). And although the definition of “intimate partner” refers to the “type of relationship” as one criterion for determining whether a relationship is a “social relationship of a romantic or intimate nature,” there is no indication Congress intended by that vague phrase to require such relationships to be heterosexual. Indeed, the phrase is most naturally read to refer to indicia that the relationship is or was “romantic or intimate,” as the statute prescribes. 6 Thus, based on the The 2006 VAWA amendments added the reference to individuals in social relationships of a romantic or intimate nature. Pub. L. No. 109-162, § 106(d), 119 Stat. at 2982. 6 Although “a word may be known by the company it keeps,” Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 287 (2010) (internal quotation marks omitted), the fact that VAWA joins the term “spouse” with the term “intimate partner” in one combined definition is not a ground for concluding that DOMA’s restriction on the former term should be applied to the latter term so as to preclude an “intimate partner” from being the same sex as the offender. The noscitur a sociis canon applies when a potentially broad term appears as part of “some sort of gathering with a common feature to extrapolate” in order to give consistent meaning to the statutory terms that are so gathered. S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 379–80 (2006); see also Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226 (2008); Gutierrez v. Ada, 528 U.S. 250, 254–58 (2000) (applying the canon to limit the phrase “any election” to gubernatorial elections when the phrase was surrounded by six specific references to gubernatorial elections). Simply put, the terms “spouse” and 5 152 Application of Violence Against Women Act When Offender and Victim Are Same Sex statutory definition, a person who is the same sex as the target of the stalking may be an “intimate partner” of the target for purposes of section 2261A. The last of VAWA’s criminal provisions, section 2261, is limited in reach to those victims who are the “spouse, intimate partner, or dating partner” of the offender. Despite this difference from sections 2261A and 2262, we conclude that section 2261, too, applies when the victim and the offender are the same sex. The analysis that leads us to this conclusion is essentially the same as that set forth above. The term “spouse” may not be read to include an individual who is the same sex as the offender because of DOMA, but 18 U.S.C. § 2266(7) defines the phrase “spouse or intimate partner” 7 for purposes of section 2261 in materially identical terms to the definition that governs section 2261A. An “intimate partner” of the offender thus includes “a person who shares a child in common with the abuser” and “a person who is or has been in a social relationship of a romantic or intimate nature with the abuser, as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.” Because, as we have noted, persons who are the same sex may share a child in common or be in a social relationship of a romantic or intimate nature, the term “intimate partner” in section 2261 includes a victim who is the same sex as the abuser. With respect to section 2261, therefore, that leaves only the term “dating partner” to be examined. The term is defined in 18 U.S.C. § 2266(10) similarly to one portion of section 2266(7)’s definition of “spouse or intimate partner.” Section 2266(10) provides that a “dating partner” is “a “intimate partner,” despite their appearance together in the definitional section of VAWA, do not constitute the requisite sort of “gathering with a common feature” to which the noscitur canon could apply. See, e.g., Graham County, 559 U.S. at 288–89 (declining to apply the canon to the adjectives “congressional, administrative, or Government Accounting Office” in order to limit the middle term to federal, rather than all governmental, administrative reports). 7 Section 2261, as originally enacted, included the exact phrase “spouse or intimate partner,” but the 2006 VAWA amendments replaced that phrase with “spouse, intimate partner, or dating partner.” Despite the fact that the terms “spouse” and “intimate partner” are now separated by a comma rather than by the word “or” in section 2261, it is clear that the definition in section 2266(7) (“spouse or intimate partner”) continues to govern the meaning of the two terms. 153 34 Op. O.L.C. 147 (2010) person who is or has been in a social relationship of a romantic or intimate nature with the abuser,” and it specifies that “[t]he existence of such a relationship is based on a consideration of” “the length of the relationship,” “the type of relationship,” and “the frequency of interaction between the persons involved in the relationship.” 8 As we have explained, materially identical language supports the conclusion that an “intimate partner” may be the same sex as the abuser, and we see no reason for reaching a different conclusion as to this language when it defines the term “dating partner.” In both cases, the relevant definitions contained in section 2266 state that the terms “intimate partner” and “dating partner” in section 2261 refer to a “person” with a particular sort of relationship to the abuser. They do not further suggest any limitation based on the sex of either the abuser or the victim or any requirement that the abuser and the victim not be the same sex. The limited legislative history that bears on the pertinent VAWA provisions is consistent with our reading of the terms “intimate partner” and “dating partner.” The 2006 VAWA amendments added the definition of “dating partner” and amended the definition of “spouse or intimate partner” for purposes of VAWA’s criminal provisions. Those amendments also sought to strengthen the health care system’s response to domestic violence, dating violence, sexual assault, and stalking. A finding pertaining to these latter changes discusses the “health-related costs of intimate partner violence” and notes that “[t]hirty-seven percent of all women who sought care in hospital emergency rooms for violence-related injuries were injured by a current or former spouse, boyfriend, or girlfriend.” Pub. L. No. 109-162, § 501(1)–(2), 119 Stat. at 3023 (emphases added). This finding’s reference to “intimate partner” violence between women and their girlfriends comports with our conclusion that two individuals 8 The 2006 VAWA amendments introduced the term “dating partner” and this attendant definition, Pub. L. No. 109-162, § 116(b), 119 Stat. at 2989, although the 2000 amendments had previously used the term “dating violence” in several of VAWA’s noncriminal provisions and had defined that term in nearly identical language, see, e.g., Pub. L. No. 106-386, § 1108, 114 Stat. at 1500 (“[T]he term ‘dating violence’ means violence committed by a person—(A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) the length of the relationship; (ii) the type of relationship; and (iii) the frequency of interaction between the persons involved in the relationship.”). 154 Application of Violence Against Women Act When Offender and Victim Are Same Sex who are the same sex may be considered “intimate partner[s]” for purposes of VAWA. Similarly, H.R. 1248, 106th Cong. (1999), which became Public Law 106-386, initially defined “domestic violence” for purposes of VAWA’s grant programs as including “acts or threats of violence, not including acts of self-defense, committed . . . by a person who is or has been in a continuing social relationship of a romantic or intimate nature with the victim.” H.R. 1248, § 2. During Committee markups, a manager’s amendment changed the definition to exclude the reference to those persons in romantic or intimate relationships. Instead, a separate definition of “dating violence” was added to select VAWA programs. That definition tracks the definition of “dating partner” in the 2006 amendments, covering violence committed by a person “who is or has been in a social relationship of a romantic or intimate nature” as determined by the length of relationship, type of relationship, and frequency of interaction between the persons. See supra note 8. In published additional views, sixteen members of Congress expressed concern that dating violence had not been included in all of VAWA’s grant programs. In doing so, those members stated that dating violence encompassed violence in same-sex relationships. See H.R. Rep. No. 106-891, pt. 1, at 85 (2000) (Additional Views) (“One of the most serious concerns we have with the committee-passed bill is its failure to expand the scope of VAWA funding to include programs designed to combat dating violence, including violence in same-sex relationships. As introduced, H.R. 1248 would have amended VAWA so that the term ‘domestic violence’ would have included dating violence, and violence between same-sex couples, a position which is strongly supported by all of the major domestic violence and sexual assault groups, the Department of Justice, the National Association of Attorneys General, and the U.S. Conference of Mayors.” (footnotes omitted)). In other words, the additional views endorsed the position that a “social relationship of a romantic or intimate nature” includes such a relationship between two individuals who are the same sex. Nothing elsewhere in the House Report calls this reading into question. Subsequently, in the 2006 VAWA amendments Congress added the “social relationship of a romantic or intimate nature” language to VAWA’s criminal provisions, defining both “intimate partner” and “dating partner” in terms of such relationships. The legislative history of this phrase in the 2000 House Report is thus con155 34 Op. O.L.C. 147 (2010) sistent with reading the terms “intimate partner[s]” and “dating partner[s]” for purposes of section 2261, as amended, to include two individuals who are the same sex. III. The text, relevant case law, and legislative history all support the conclusion that VAWA’s three criminal provisions, 18 U.S.C. §§ 2261, 2261A, and 2262, apply to otherwise-covered conduct when the offender and victim are the same sex. And the views we have received reach the same conclusion. Thus, for the reasons set forth above, we conclude that each of these provisions apply when the offender and the victim are the same sex. DAVID J. BARRON Acting Assistant Attorney General Office of Legal Counsel 156

Write a legal research memo on the following topic.

Federal Bureau of Investigation Authority to Investigate a Killing in the Virgin Islands U n d er 28 U .S.C . § 533(3), th e F ed eral B ureau o f In v estig atio n (F B I) has a u th o rity to c o n d u c t an in v estig atio n o f any “ official m atters u n d e r the c o n tro l o f th e D e p a rtm e n t o f Ju s tic e .” Since, u n d e r 48 U .S.C . § 1617, th e U nited S tates A tto rn e y for th e V irg in Islands is em p o w e re d to p ro secu te serious offenses against local law , in cluding m u rd e r, th e m u rd e r o f an im m ig ration ju d g e in the V irg in Islands is w ithin th e F B I’s in v estig a­ tiv e ju risd ictio n . October 2, 1980 MEMORANDUM OPINION FOR T H E SPECIAL ASSISTANT TO TH E ATTORNEY G EN ER A L Your inquiry concerning the authority of the Federal Bureau of Investigation (FBI) to investigate the killing of an immigration judge in the Virgin Islands has been forwarded to me for response. In our view, the FBI does have the power to investigate this matter if authorized by the Attorney General to assist the U.S. Attorney for the Virgin Islands in the execution of his duties. Under 28 U.S.C. § 533(3), the Attorney General may appoint agents to conduct such other investigations regarding official matters under the control of the Department of Justice . . . as may be directed by the Attorney General. The question is therefore whether an investigation into the killing of an immigration judge would concern an “official matter[ ] under the con­ trol of the Department of Justice.” Under 48 U.S.C. § 1617, the U.S. Attorney for the Virgin Islands is empowered to prosecute all offenses against the laws of the Virgin Islands which are cognizable rn United States District Court there. Under 48 U.S.C. § 1612, the district court has jurisdiction over offenses against local law, exclusive jurisdiction over which is not conferred on the inferior courts. Section 1613 of that title provides that the inferior courts shall have exclusive criminal jurisdiction only over minor of­ fenses involving a maximum fine of $100 or imprisonment for six months, or both. Hence, the U.S. Attorney for the Virgin Islands has statutory jurisdiction to prosecute all more serious offenses. Although by local agreement his duty to prosecute crimes under Virgin Islands law is limited to felonies punishable by at least a five-year sentence, an 795 investigation into the possible murder of an immigration judge satisfies this condition. The U.S. Attorney is an officer in the Department of Justice and hence subject to the direction of the Attorney General (see 28 U.S.C. §519).The investigation of this incident could lead to a prosecution within the jurisdiction of the U.S. Attorney. The investigation can therefore properly be regarded as an “official matter[ ] under the con­ trol of the Department of Justice.” Accordingly, quite apart from any possible violations of federal law, the FBI can legally undertake an investigation if authorized to do so by the Attorney General to assist the U.S. Attorney. L eo n U lm an Deputy Assistant Attorney General Office o f Legal Counsel 796

Write a legal research memo on the following topic.

Proposed Legislation to Grant Additional Power to The President’s Commission on Organized Crime The President’s Com m ission on O rganized Crime, a Presidential advisory committee with m em bers from the Legislative and Judicial Branches, may be granted subpoena power without violating the Appointm ents Clause, U.S. Const, art. II, § 2, cl. 2, or the Incompatibility Clause, id., art. I, § 6, cl. 2. As statutory aids to its investigation, the Commission should also seek the pow er to adm inister oaths and to have false statem ents punished as perjury. C onstitutional and policy concerns m ilitate against seeking independent authority for the Com ­ m ission to enforce subpoenas by holding individuals in contem pt, or to grant use immunity. The pow er to grant use immunity raises questions about the Com m ission’s advisory role and the propriety o f service by members of the Legislative and Judicial Branches. August 24, 1983 M em o ran d um O p in io n f o r t h e A s s o c ia t e A t t o r n e y G e n e r a l On July 28, 1983, President Reagan established the President’s Commission on Organized Crime (Commission), as an advisory committee under the Fed­ eral Advisory Committee Act (FACA), 5 U.S.C. app. I. See Exec. Order No. 12435,48 Fed. Reg. 34723 (1983). Its duties are purely investigatory in nature, and will culminate in a final report to the President and the Attorney General.1 The Commission’s membership includes a federal judge, two members of Congress and numerous private citizens.2 1 As stated in § 2(a) o f the Executive O rder: The C om m ission shall m ake a full and com plete national and region-by-region analysis o f organized crime; d efine th e nature o f traditional organized c rim e as w ell as em erging organized crim e groups, the sources and am ounts o f organized crim e ’s income, an d the uses to which organized crim e puts its income; develop indepth inform ation on the participants in o rganized crim e netw orks; and evaluate Federal laws pertinent to the effo rt to com bat organized crim e. The C om m ission shall advise the President and the A ttorney G eneral with respect to its findings and actions which c an be undertaken to improve law enforcem ent efforts directed against organized crim e, and m ake recom m endations concerning appropriate adm inistrative and legislative im provem ents and im provem ents in the adm inistration o f justice. 2 See L eslie M aitland W em er, President C hooses 20 as M em bers o f O rganized Crime Commission, N.Y. T im es, Ju ly 19, 1983, at A l, col. 2. T h e m em bers include Judge Irving R. Kaufman, Senator Strom T hurm ond, R epresentative Peter W. R odino. Jr., form er Suprem e Court Justice Potter Stew art, as well as sixteen o th er individuals draw n from o u tsid e the federal governm ent. As this office has stated on many occasions, m em ber o f C ongress and federal ju d g es may sit on purely advisory com m ittees w ithout violating eith e r the A ppointm ents C lause, U.S. C onst, art. II, § 2, cl. 2, o r the Incom patibility Clause, id., art. I, § 6, cl. 2. M em bership on a purely advisory com m ittee does not constitute holding an “O ffice” under the Constitu­ tion because such com m ittees possess no enforcem ent authority o r pow er to bind the Government. See 26 Op. A tt’y G en. 247 (1907); 24 Op. A tt’y Gen. 12 (1902); 22 Op. A tt’y Gen. 184 (1898); H.R. Rep. No. 2205, 55th Continued 128 Pursuant to your request, this memorandum addresses the issue of what additional powers the Commission might seek from Congress as aids to its investigation. Of the five that have been suggested — the power to issue subpoenas, to administer oaths, to hold individuals in contempt, to grant individuals immunity, and to have false statements to the Commission be subject to prosecution for perjury — we believe that the Department should only seek the powers to issue subpoenas and administer oaths and to have false statements punished as perjury. I. The Power to Issue Subpoenas and Administer Oaths A subpoena is a formal demand that instructs an individual to produce either testimonial or documentary evidence.3 Some have suggested that the grant of subpoena powers will in some fashion preclude the Commission from being a purely advisory body. We disagree. As discussed below, the subpoena power has been used by all three branches of the Government and by the public as an investigative tool. Issuing a subpoena is not a purely executive function which may only be exercised by officers of the Government nor is it a coercive or adjudicatory power that may only be exercised by the judiciary. Rather, it is a power that may be granted to those authorized to investigate, regardless of their other functions. Subpoena power has been granted to groups and individuals in many con­ texts. These include investigations conducted by members of all three branches of the Government, i.e., Congress, 2 U.S.C. § 190m, the Judiciary, 43 U.S.C. § 1619(d)(8), and Executive Branch agencies, 49 U.S.C. § 12(1), as well as civil suits where any party may request one. Fed. R. Civ. P. 45.4 Historically, the power has also been given to some Presidential commissions.5 2 ( . . . continued) Cong., 3d Sess. 4 8 -5 4 (1899); E. C orw in, Presidential Pow er and the C onstitution 73-74 (R . Loss ed. 1977). For the discussion o f judges serving in the Executive Branch in more than advisory capacities, see Indepen­ dence o f Judges: Sh o u ld They Be Used fo r N on-Judicial W ork9, 33 A.B.A.J. 792 (1947). See also 40 Op. A tt’y Gen. 423 (1945); M emorandum for Ramsey Clark, A ssistant A ttorney General, Lands Division from Norbert A. Schlei, A ssistant A ttorney General, O ffice o f Legal Counsel (Nov. 27, 1963) (“W hether the President should call upon Federal judges to engage in nonjudiciai functions fo r the Federal G overnm ent is basically a m atter o f policy.”). Ironically, the very absence o f an Incom patibility Clause for judges m akes them more vulnerable than Congressm en to criticism . Because they are able to accept positions in the Executive B ranch, the public’s attention is focused on the issue and questions are raised about whether the independence o f the judiciary is being compromised. 3 See, e.g., 1 U .S.C . § 2717 (investigation o f egg production by the Secretary of A griculture) (“For the purpose o f such investigation, the Secretary is em pow ered to adm inister oaths and affirm ations, subpoena witnesses, compel th eir attendance, take evidence, and require the production of any books, papers, and docum ents which are relevant to the inquiry.” ). 4 O riginally, the courts resisted congressional grants o f subpoena power to agencies, see In re Pacific Ry. C om m ’n, 32 F. 241 (N. C ir Ca. 1887), and for many years the Supreme C ourt read the grants restrictively. Jones v. SEC, 298 U.S. 1 (1936); F T C v. Baltim ore G rain, 261 U.S. 5 86(1924). This attitude began to change in the 1940s, how ever, and it is now firm ly settled that agencies may issue investigatory subpoenas that will be enforced by the courts if the investigation is authorized and the inform ation sought is relevant. Oklahom a Press Publishing Co. v. Walling, 327 U.S. 186, 209 (1946). See generally 3 B. Mezines, J. Stein, J. G ruff, A dm inistrative Law § 20.01 (1982) (M ezines); K. D avis, A dm inistrative Law Treatise (1958) (Davis). 5 M ezines, supra note 4, § 19.01, at 192 n.2; infra notes 7, 8. 129 The reason that subpoena powers may be granted to so many diverse groups without running afoul of either the Appointments Clause, U.S. Const, art. II, § 2, cl. 2, or the Incompatibility Clause, id., art. I, § 6, cl. 2, or the general doctrine mandating separation of powers, is two-fold. First, the subpoena power is not tied to any particular branch; it is not one of the functions described by the Supreme Court as lodged exclusively in either the Executive, the Judiciary or Congress. Buckley v. Valeo, 424 U.S. 1, 137-41 (1976). Second, the power to issue a subpoena has not been viewed as the exercise of a coercive power; thus, no matter what the issuing agent finds out, it cannot, in the absence of any other power, use the information to do anything, such as enact or execute a law, adjudicate a dispute, or otherwise “take any affirmative action which will affect an individual’s rights.” Hannah v. Larche, 363 U.S. 420,441 (1960) (describing powers of the Civil Rights Commission). Thus, the power to issue a subpoena does not intrude upon either the powers of a particular branch or the legal rights of an individual. Although the document issued is styled as a command, the issuing authority is in fact dependent upon the courts for enforcement: Though often complied with — to earn good will, for other tactical reasons, or out of ignorance that no obligation has yet attached — an agency subpoena typically has no independent force . . . . The obligation to respond is determined only upon judicial review of the underlying order. W. Gellhom, C. Byse, P. Strauss, Adm inistrative Law 553-54 (1979). It is only when we reach the issue of actually enforcing subpoenas, discussed below, that constitutional issues about functions reserved to the individual branches arise. Therefore, this Office has, on more than one occasion, approved the grant by Congress of subpoena powers to Presidential commissions that are purely advisory in nature and that have members of the Legislative or Judicial Branch on them. For example, in 1963 this Office approved a bill establishing the Commission on Political Activity of Government Personnel, 5 U.S.C. App. § 118i note (Supp. II 1965-66), a commission composed of at least four congressmen and two members of the Executive Branch and charged with investigating federal laws that limited political activity by federal employees. Pub. L. No. 89-617, §§2, 7, 80 Stat. 868 (1966).6 The Commission was granted subpoena powers, id. § 8(a), and we were specifically asked whether the presence of congressmen created any legal problems. Our response was clear: “We are not aware of any grounds, based upon legal, constitutional or policy considerations, upon which to question the provisions of § 8(a).” Memo­ randum for Nicholas deB. Katzenbach, Deputy Attorney General from Norbert A. Schlei, Assistant Attorney General, Office of Legal Counsel (Dec. 20, 1963).7 6 M em orandum fo r N icholas deB. K atzenbach, D eputy A ttorney G eneral from N orbert A. Schlei, A ssistant A ttorney G eneral, O ffice o f Legal Counsel (M ay 1, 1963). 7 In passing, w e pointed out two sim ilar com m issions th at had had subpoena pow ers — the Hoover C om m ission, and the C om m ission on Intergovernm ental R elations. See Pub. L. No. 8 3 -1 8 4 ,2 , 3, 67 Stat. C ontinued 130 We have reached the same conclusion where the Commission includes mem­ bers of the Judiciary, such as the Warren Commission.8 Memorandum for J. Lee Rankin, General Counsel, The President’s Commission from Norbert A. Schlei, Assistant Attorney General, Office of Legal Counsel (Jan. 16, 1964). An earlier commission headed by a judge was the Commission to Investigate the Japanese Attack of December 7, 1941, on Hawaii, chaired by Associate Justice Owen J. Roberts. Exec. Order No. 8983, 3 C.F.R. 1046 (1938-1943 Comp.); Pub. L. No. 77-370, 55 Stat. 853 (1941) (granting subpoena powers). See also National Commission on the Causes and Prevention of Violence, Exec. Order No. 11412, 3 C.F.R. 726 (1966-70 Comp.); Pub. L. No. 90-338, 82 Stat. 176 (1968) (Judge A. Leon Higginbotham, Jr.). We believe, therefore, that it is permissible for the Department to seek subpoena powers for the Commission. There is no difficulty with the members of the Commission also being given the power to administer oaths. This is commonly included when Congress grants the power to issue subpoenas.9 The power to administer oaths is useful not only in creating an air of serious purpose but also in bringing peijury charges. n . The Power to Enforce Subpoenas by Holding an Individual in Contempt When an individual refuses to comply with a subpoena, an agency must go to court, represented either by agency lawyers or by the Attorney General, to have it enforced.10 We do not believe that the Department should seek independent contempt authority for the Commission — i.e., legislation that would permit 7 ( . . . continued) 142, 143 (1953) (C om m ission on the O rganization o f the Executive Branch o f the G overnm ent); Pub. L. No. 83-185, § 2, 67 Stat. 145 (1953). See also President’s C om m ission on the A ccident at Three M ile Island, Exec. O rder No. 12130, 3 C.F.R. 380 (1980 C om p.); Pub. L. No. 96 -12, 93 Stat. 26 (1979) (granting subpoena powers); C om m ission on Security and C ooperation in Europe, 22 U .S.C. § 3001 (1976); National C om m ission on Electronic Fund Transfers, 12 U.S.C. § 2401 (1976); C om m ission on Federal Paperw ork, 44 U.S.C. § 3501 note (1976); C om m ission on G overnm ent Procurem ent, 41 U.S.C. § 251 note (1970); C om m it­ tee to Investigate Federal Expenditures, 26 U .S.C. § 3600 (1946); Tem porary National Econom ic C om m ittee, Pub. L. No. 7 5-456, 52 Stat. 705 (1938). 8 The W arren Com m ission was form ally known as the C om m ission to Report Upon the A ssassination of President John F. K ennedy, Exec. O rder No. 11130, 3 C.F.R. 795 (1 959-63 Com p.). Subpoena pow ers were granted in Pub. L. No. 8 8 -2 0 2 , 77 Stat. 362 (1963). 9 See, e.g., 25 U .S.C. § 174 note (1976), where the A m erican Indian Policy Review C om m ission is granted the power: to adm inister such oaths and affirm ations and to take such testim ony . . . as it deem s advisable . . . . The Chairm an o f the C om m ission o r any m ember thereof may adm inister oaths or affirm ations to w itnesses. Id.\ Pub. L. No. 9 3 -5 8 0 , § 3(a), 88 Stat. 1910 (1975). 10 As a general rule, application is m ade to the ju d g e for an order directing the subpoenaed individual to comply. W. G ellhom , C. Byse, P. Strauss, Adm inistrative Law 573 (1979). If that o rder is ignored, a separate proceeding is held to determ ine w hether the individual should be held in contem pt for failure to obey the court order. Id. Som e statutes com press these two steps into a one-stage proceeding in w hich the agency certifies to the court that its subpoena has been disobeyed; then the court is supposed to hold a summary hearing to determ ine if this is true and, if so, to punish as for contem pt o f court. Id. at 575. “In actuality, the courts behave under these statutes ju st about as they do in the tw o-stage proceedings discussed earlier.'’ Id. 131 the Commission to hold individuals in contempt on its own motion — because of both constitutional and policy objections. In 1894, the Supreme Court stated that the Interstate Commerce Commission could not, consistent with due process, enforce its own subpoenas by being given the power to commit or fine people for disobedience. ICC v. Brimsort, 154 U.S. 447 (1894). Brimson involved the issue of whether Congress had the authority to authorize the ICC to enforce its subpoenas in court. In concluding that it did, the Court appeared to say that in fact only the courts could enforce the subpoenas: The inquiry whether a witness before the Commission is bound to answer a particular question propounded to him, or to pro­ duce books, papers, etc., in his possession and called for by that body, is one that cannot be committed to a subordinate adminis­ tration or executive tribunal for final determination. Such a body could not, under our system of government, and consistently with due process law, be invested with authority to compel obedience to its orders by a judgment of fine or imprisonment. Except in the particular instances enumerated in the Constitu­ tion, and considered in Anderson v. Dunn, 6 Wheat. 204, and in K ilbou m v. Thompson, 103 U.S. 168, 190, of the exercise by either house of Congress of its right to punish disorderly behav­ ior upon the part of its members, and to compel the attendance of witnesses, and the production of papers in election and impeach­ ment cases, and in cases that may involve the existence of those bodies, the power to impose fine or imprisonment in order to compel the performance of a legal duty imposed by the United States, can only be exerted, under the law of the land, by a competent judicial tribunal having jurisdiction in the premises. See W hitcom b’s Case, 120 Mass. 118, and authorities there cited. Id. at 485. Since then, Congress has consistently required agencies to apply to the courts for an order to compel compliance with a subpoena. It has “never” conferred the power to enforce a subpoena on an issuing agency. L. Jaffe & N. Nathanson, Administrative L aw 439 (1976). Thus, there has been no occasion for the Court to re-examine the issue of whether the dictum in Brimson is still good law. There has been continuing debate on the issue among the commentators.11 B rim son’s analysis appears to rest upon the idea “that the contempt power is necessarily judicial, and [yet] the Supreme Court has unanimously held that legislative bodies may punish for contempt.” 12 One commentator has noted 11 See D avis, supra note 4, at 214-15; N o te, Use o f Contem pt Pow er to Enforce Subpoenas a nd Orders o f A dm in istra tive A gencies, 71 Harv. L. Rev. 1541 (1958). 12 D avis, su p ra note 4, at 214 (citing J u m e y v. M acCracken, 294 U.S. 125 (1935) and M cG ram v. D augherty, 273 U.S. 135 (1927)). 132 that grants of contempt power to both Congress and the courts are grounded in expediency, not in the particular nature of the power: The power of contempt is said to inhere in courts only because they must have it to perform their functions. The judicial exten­ sion of the power to Congress was justified solely on grounds of expediency. To the extent, therefore, that the agency requires the contempt power for the proper performance of its duties, the theo­ retical argument seems as strong as that which justifies the existence of the contempt powers of the other branches of government. Note, Use o f Contem pt Power to Enforce Subpoenas and Orders o f Adminis­ trative Agencies, 71 Harv. L. Rev. 1541, 1551 (1958) (footnotes omitted). At least one federal court, irritated by the delay engendered by resistance to agency subpoenas, has criticized the continued denial of contempt power to federal agencies.13 The fact remains, however, that Brimson is the Supreme Court’s last word on the subject and in that case the Court did distinguish Congress’ contempt power as being rooted in the Constitution and historical precedent. Although modem legal theory is less hostile to agency action than when Brimson was decided, there is at the same time more sensitivity to arguments that due process requires that the prosecutor not also be the judge.14 We are reluctant to advise that it is permissible to seek contempt authority for the Commission. This is especially true when there is no need to press for this extraordinary power. Other Presidential commissions, charged with equally important tasks, have been able to rely on the courts to enforce their subpoenas. Likewise, federal agencies have functioned to Congress’ satisfaction for de­ cades without this power. Moreover, there are policy objections to seeking the authority. Requesting contempt power would be very controversial, endanger­ ing the Department’s ability to secure the most important part of the legislation — the subpoena power. Traditional notions of fair play and substantial justice, as well as concerns about the separation of powers, tend to militate against, at least on policy grounds, granting such a power to a Commission composed, as this one is, of members from all three branches of the federal government. In fact, over the years Congress has decided that agencies should not have the power, perhaps in part due to a concern that agencies will misuse it, as the judiciary and legislatures themselves at times have done.15 As Justice Frank­ furter observed: 13 Federal M aritim e Comm 'n v. New York Term inal Conference, 373 F.2d 424 (2d Cir. 1967). Judge Friendly said: Congress m ight w ell consider w hether the long record o f frustrations and less restrictive m odem notions o f the separation o f pow ers m ight not make it wise to em pow er at least some adm inistra­ tive agencies to enforce subpoenas without having to resort to the courts in every case. Id. at 426 n.2 (citations om itted). Some states have given their agencies the pow er to punish for contem pt w hile others have denied it. D avis, supra note 4, at 215. 14 See, e.g.. W ard v. Village o f M onroeville, 409 U.S. 57 (1972); M orrissey v. Brewer, 408 U.S. 471, 4 8 5 86(1972 ). 15 See, e.g.. H olt v. Virginia, 381 U.S. 131 (1965) (state court); Groppi v, Leslie, 404 U.S. 496 (1972) (W isconsin legislature). 133 Beginning with the Interstate Commerce Act in 1887, it became a conventional feature o f Congressional regulatory legislation to give administrative agencies authority to issue subpoenas for relevant information. Congress has never attempted, however, to confer upon an administrative agency itself the power to compel obedience to such a subpoena. It is beside the point to consider whether Congress was deterred by constitutional diffi­ culties. That Congress should so consistently have withheld powers of testimonial compulsion from administrative agencies discloses a policy that speaks with impressive significance. Pennfield Co. v. SEC, 330 U.S. 585,603-04 (1947) (Frankfurter, J., dissenting) (dictum). It is unlikely that Congress, having denied the power to permanent agencies — including those with quasi-judicial functions — for almost one hundred years, is going to confer such power on a temporary advisory commis­ sion. Requesting the authority would suggest to Congress either a disquieting ignorance of historical precedent or a presumptuous disregard of it. We do not believe the Department should ask Congress to grant contempt power to the Commission. III. The Power to Grant Immunity It has also been suggested that the Department ask that the Commission be given the power to grant “use” immunity.16 We assume that this would be done by adding the Commission to the list of authorized agencies in 18 U.S.C. §6001(1).17 Authorized agencies may, with the approval of the Attorney General, issue an order to an individual who is claiming his Fifth Amendment privilege, requiring him to testify.18 Information derived from such testimony is barred from use against the witness in any criminal case. 16 “U se” im m unity provides immunity from prosecution based on the com pelled testimony o r evidence derived from th at testim ony, as distinguished from “transactional" im m unity, which grants full immunity from prosecution o f the offense to which th e com pelled testim ony relates Use immunity was found to be coextensive w ith the Fifth A m endm ent's guarantee against self>incnm ination in K astigar v U nited States, 406 U.S. 441 (1972). 17 C ongress enacted the present immunity statute in 1970. 18 U.S.C. §§ 6001-6005. Authorized agencies are the basic executive and military departm ents, 5 U .S.C. §§ 101, 102, and about fifteen other agencies. 18 U .S.C . § 6 0 0 1 (1 ). 18 18 U .S .C § 6004 provides. (a) In the case o f any individual w h o has been o r who may be called to testify or provide other inform ation at any proceeding before an agency o f the U nited States, the agency may, w ith the approval o f the A ttorney General, issue, in accordance w ith subsection (b) of this section, an o rd er requiring the individual to g iv e testim ony o r provide other information which he refuses to g ive o r provide on the basis of his privilege against self-incnm ination. Such order to become e ffective as provided in section 6002 o f this part. (b) An agency o f the United States may issue an order under subsection (a) of this section only if in its ju d g m en t — (1) the testim ony o r other inform ation from such individual may be necessary to the public in terest; and (2) such individual has refused o r is likely to refuse to testify o r provide other inform ation on the basis o f his privilege against self-incrim ination 134 Although the grant of use immunity to witnesses has been described as an executive function by some courts,19 it is not clearly executive in the sense described in Buckley v. Valeo, 424 U.S. 1 (1976), because rather than being a power committed wholly to the Executive Branch, it is a statutory creation that has also been given to Congress and its committees. 18 U.S.C. § 6005.20 The power to grant immunity is, however, a function that raises doubts about the Commission’s role and the propriety of service on it by members of the legislature. As noted above, see supra note 2, we have described advisory committees as those that do not have the power to bind the Government. The power to grant use immunity is the power to bind the Government not to prosecute an individual for criminal conduct revealed through his testimony. Although it may not be an executive function for Congress to grant immunity for testimony heard pursuant to a legislative investigation, it may be an execu­ tive function for the Commission to grant immunity to witnesses in the course of an Executive Branch investigation. Executive functions may be performed only by officers of the government — which Congressmen may not be. Were a court to conclude that the Congressmen were without authority either to sit on the Commission or to vote on the grants of immunity, the work of the Commis­ sion could be imperiled. A court might nullify grants of immunity or restrict the Congressmen’s role on the Commission. The same arguments can be made with respect to judges because the judiciary has neither inherent nor statutory power to grant immunity for judicial investigations. The power to grant immunity is inevitably tied to prosecutorial decisions. This is especially true when the Commission is charged with investigating an area of special concern to federal prosecutors, such as organized crime. If, as seems likely, the Commission calls as a witness someone who has evidence of a crime or is the target of an ongoing criminal investigation, there are several ways a grant of immunity by the Commission might interfere with the Department’s ability to prosecute. Most obviously, granting immunity could deprive the Department of a desired conviction by immunizing the witness. Given the current trend towards complicated, multi-year undercover opera­ tions, the Attorney General’s statutory veto power, 18 U.S.C. § 6004(b), does not solve the problem. Even refusing to concur may alert an individual to the fact that he is the target of an ongoing or proposed investigation. Moreover, given the Commission’s advisory nature, there is much less chance that there will be effective coordination with the Department’s many units, scattered across the country, in order to avoid entanglement with such investigations. That the Department may have built a complete case without the compelled testimony — and, therefore, still be able to prosecute — is small comfort 19 See U nited States v. D 'A spice, 664 F.2d 75, 77 (5th Cir. 1981) (judiciary has no inherent pow er to grant use immunity); U nited States v. Lenz, 616 F 2d 960, 962 (6th Cir.), cert, denied, 447 U.S. 929 (1980) 20 The im m unity statute covers only use immunity. If the statute granted transactional immunity, there would be a serious constitutional problem. G ranting transactional immunity means that the individual cannot be prosecuted for the illegal conduct. We believe that the decision to grant transactional im m unity is essentially a decision not to prosecute, and the decision w hether to prosecute is an executive function in the Buckley sense. 424 U.S. at 138. 135 because the individual will undoubtedly try to prove that the case is derived from the compelled testimony and the burden of proof will be on the govern­ ment to show the independent derivation of the case. See, e.g., United States v. Provenzano, 620 F.2d 985, 1005 (3d Cir.), cert, denied, 449 U.S. 889 (1980). Thus, a straightforward prosecution could suddenly be jeopardized by the intrusion of an unnecessary hurdle. We believe that this issue should be carefully reviewed before any final decision is made. The same policy rationale that argues against seeking contempt powers also argues against seeking immunity. The power to grant immunity is an extraordi­ nary tool given to a small core group of Executive Branch agencies, whose use should be carefully guided by consideration of potential or ongoing investiga­ tions. Obviously, the Commission might discover more if given the right to grant immunity; nevertheless, other Presidential commissions have done their work satisfactorily without it, and its availability seems unnecessary in light of the Commission’s generally phrased task. We would strongly urge that the Department not seek the power to grant immunity for the Commission. IV. IPirosecunttnoini for Perjury There are presently two general statutes covering peijury and subornation of perjury. 18 U.S.C. §§ 1621, 1622.21 Although these two statutes are occasion­ ally incorporated by reference in statutes dealing with particular programs, see, e.g., 30 U.S.C. §49e; 8 U.S.C. § 1357(b), they may also be referred to by implication where, for example, a specific statute will merely say that the “person so falsely swearing shall be deemed guilty of peijury.” 46 U.S.C. § 170(13). See also 22 U.S.C. § 4221. Other statutes set up their own punish­ ments for false statements. See 18 U.S.C. § 1546. Which course to adopt would appear to be a policy choice but we would suggest that the litigating divisions, especially the Criminal Division, be consulted. If it is decided to rely on the general peijury statute, we are not aware of any reason why the Commission 21 18 U .S.C . § 1621 states: W hoever — (1) having taken an oath before a com petent tribunal, officer, or person, in any case in which a law o f the U nited States authorizes an oath to be adm inistered, that he will testify, declare, depose, o r certify truly, or that an y w ritten testim ony, declaration, deposition, or certificate by him subscribed, is true, willfully an d contrary to such oath states or subscnbes any material m atter w hich he does not believe to be true; o r (2) in any d eclaration, certificate, verification, o r statem ent under penalty o f perjury as p erm itted under section 1746 o f title 28, U nited States Code, w illfully subscribes as true any m aterial m atter w hich he does not believe to be true; is guilty o f peijury and shall, except as otherw ise expressly provided by la w , be fined not m ore than $2,000 o r imprisoned not more than five y ears, o r both. T his section is applicable w hether the statem ent or subscription is made w ithin o r w ithout the United States. 18 U .S .C . § 1622 states: W hoever procures an o th er to commit an y peijury is guilty o f subornation o f peijury, and shall be fined not m ore than $2,000 o r im prisoned not m ore than five years, o r both. See a lso 28 U .S.C . § 1746 (making unsw orn statem ents subject to punishm ent for perjury). 136 would not fall within the category of “competent tribunal.”22 Nevertheless, we recommend that any proposed legislation include a specific provision referring to 18 U.S.C. § 1621 to eliminate any doubt that the general statute applies.23 V. Possible Phrasing of Legislation Grants of subpoena power vary, both in specificity and in the limits placed upon the grants.24 The basic grant, which also includes the administration of oaths, is often phrased in terms similar to the following: The Commission shall have the power to issue subpoenas re­ quiring the attendance and testimony of witnesses and the pro­ duction of any evidence that relates to any matter under investi­ gation by the Commission. The Commission or any member of the Commission may administer oaths and affirmations, exam­ ine witnesses, and receive evidence. Such attendance of wit­ nesses and the production of such evidence may be required from any place within the United States at any designated place of hearing. The next paragraph will generally cover the contempt power. In case of contumacy or refusal to obey a subpoena issued to any person under the previous paragraph, any district court of the United States, upon application by the Attorney General, shall have jurisdiction to issue to such person an order requiring a witness to appear before the Commission or its members, there to produce evidence if so ordered, or there to give testimony touching the matter under investigation or in question; and any failure to obey such order of the court may be punished by the court as a contempt thereof. This basic formula can be varied in many ways: by permitting individual Commission members, when authorized, to issue subpoenas;25 by limiting the subpoena to witnesses only, not documents;26 by expanding the courts to which 22 Testimony before investigative com m ittees has often resulted in perjury convictions. See U nited States v. Haldeman, 559 F.2d 31, 102-04 (D.C. Cir. 1976) (Senate Select Com m ittee on Presidential C am paign Activities), cert, denied, 431 U.S. 933 (1977); M eyers v. United States, 171 F.2d 800, 811 (D.C. Cir. 1948) (Senate subcom m ittee), cert, denied, 336 U.S. 912 (1949); Boehm v. U nited States, 123 F.2d 791, 800-01 (8th Cir. 1941) (SEC ), cert, denied, 315 U.S. 800 (1942); State v. Reuther, 81 So. 2d 387, 388-89 (La. 1955) (Special C itizens Investigating Com m ittee). 23 Competence may also be affected by procedural requirem ents. For exam ple, for a legislative com m ittee to be com petent, a properly constituted quorum must be present. See C hristojfel v. U nited States, 338 U .S. 84 (1949); United S tates v. Reincke, 524 F.2d 435, 437 (D.C. Cir. 1975). 24 Compare 5 U .S.C. § 8126(1) (Secretary o f Labor) w ith 22 U.S.C. § 1623(c) (Foreign Claims Settlem ent Commission). 25 Pub. L. No. 9 6 -1 2 , § 2(a), 93 Stat. 26 (1979). A lternatively, issuance o f subpoenas by the Com m ission could be made pursuant to a vote o f tw o-thirds or three-quarters o f the members, rather than a simple majority. 26 5 U.S.C. § 304(a). 137 the Attorney General may apply;27 by limiting the distance witnesses may be forced to travel;28 or by permitting witnesses to be excused by the court if the required testimony or evidence would tend to incriminate them or subject them to a criminal penalty.29 The method of service may also vary,30 and the payment of witness fees may be specifically included.31 The Commission may be permitted to apply to the court for enforcement of the subpoena through its own staff attorneys, rather than through the Attorney General.32 Which of these items to include is obviously a policy choice.33 Conclusion The Commission may be given subpoena powers by Congress without casting any doubt on the propriety of the service of either Judge Kaufman, Senator Thurmond or Representative Rodino. We do not believe that the Department should seek contempt or immunity powers for the Commission. Whichever powers are sought, care should be taken that their use does not raise any suggestion that the Commission is targeting particular individuals. Courts have in various contexts been critical of the practice of parallel civil and criminal investigations because of their concern that information obtained in one context will be improperly used to aid an investigation.34 As we understand it, the Commission’s mandate is to survey the general nature of organized crime, not to uncover its members, and the prudential use of whichever powers are granted should protect against accusations that the Commission is being used as a stalking horse for the Department’s own investigations. Ra lph W . T arr D eputy Assistant Attorney General Office o f Legal Counsel 11 Pub. L. No. 9 6 -1 2 , § 2(c), 93 Stat 26 (1979) (any court o f the United States); 7 U.S.C § 2917 (any court o f the U nited States w ithin w hose jurisd ictio n the investigation is being earn ed on); Pub. L. No. 94-106, § 816(d)(2), 89 Stat. 540 (1975) (any d istric t court fo r any district in w hich the person is found, resides or does business). 28 42 U .S.C . § 1975a(k) (w itness may n o t be forced to travel outside his State unless distance is 50 miles or less). 29 Pub. L. No. 9 3 -5 5 6 , § 6(b)(3), 88 S tat. 1789 (1974). ^ M e z in e s , supra note 4, at 20-51. 3142 U .S.C . § 2201(c). 32 7 U .S.C . § 2917; 42 U .S.C . § 6299(a). T he obvious disadvantage o f Congress granting such perm ission is a loss o f D epartm ent control over the C om m ission’s activities, particularly in cases in which coordination is necessary to facilitate a crim inal investigation o r prosecution not involved with the C om m ission's area of inquiry. 33 In addition to these item s, Congress m ay also consider adding restraints sim ilar to those placed on the C ivil R ights C om m ission, w hich must, am o n g other things, perm it w itnesses to present a written statement, be represented by counsel and to answer defam atory o r degrading evidence. 42 U.S.C. § 1975a(c), (e), (h). 34 U nited States v. Sells E n g ’g, 463 U.S. 418 (1983); U nited States v. LaSalle N a t'l Bank. 437 U.S. 298 (1978). 138

Write a legal research memo on the following topic.

Appointment of Member of Holocaust Memorial Council The process of appointing an individual as a member of the United States Holocaust Memorial Council was not completed. Even if the process of appointing a member of the Council had been completed, the President’s appointment of another individual to that same position effected a removal of that appointee. February 6, 2003 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT You have asked for our opinion whether an individual who claims to occupy a position as a member of the United States Holocaust Memorial Council (“Council”) was actually appointed to that position. On the facts presented to us, which we set forth below, this question is indistinguishable from a question we previously answered regarding persons claiming to occupy positions as trustees of the John F. Kennedy Center for the Performing Arts. See Memorandum for Timothy E. Flanigan, Deputy Counsel to the President, from Daniel L. Koffsky, Acting Assistant Attorney General, Re: Kennedy Center Board of Trustees (Oct. 10, 2001) (“Kennedy Center Memorandum”). Consistent with the Kennedy Center Memorandum, we conclude that the process of appointing the putative appointee was never completed. You have further informed us that on May 29, 2002, President Bush appointed another individual to serve as a Council member in the very position to which the putative appointee claims to have been previously appointed. We conclude below that if arguendo (and contrary to our conclusion on your first question) the putative appointee was in fact actually appointed to that position, President Bush’s subsequent appointment of another individual to that same position effected a removal of the putative appointee.* I. The Council operates as the board of trustees of the United States Holocaust Memorial Museum (“Museum”): it has “overall governance responsibility for the Museum, including policy guidance and strategic direction, general oversight of Museum operations, and fiduciary responsibility.” 36 U.S.C. § 2302(a) (2000). The Council consists of 65 voting members. Of these voting members, 55 are appointed by the President; five are appointed by the Speaker of the House of Representatives from among members of the House; and five are appointed by the President pro tempore of the Senate from among members of the Senate. Id. * Editor’s Note: We are not identifying in the published version of this opinion the names of the putative appointee to the Council or the other individual appointed to the Council. 51 Opinions of the Office of Legal Counsel in Volume 27 § 2302(b). In addition, the Council has three “ex officio nonvoting members”— one appointed by the Secretary of the Interior, one by the Secretary of State, and one by the Secretary of Education. Id.1 Our opinion rests on the following understanding of the facts: In a memorandum dated May 18, 2000, Bob Nash, who was Assistant to the President and Director of Presidential Personnel, recommended that President Clinton “approve” the putative appointee for the vacant position on the Council “vice: Beth Dozoretz.” The memorandum provided lines labeled “Approve” and “Disapprove” immediately after the recommendation. President Clinton checked the “Approve” line. On May 25, 2000, the Office of Presidential Personnel sent the White House Counsel’s Office (“Counsel’s Office”) a memorandum stating that “President Clinton has approved” the putative appointee and asking that the Counsel’s Office “initiate a preliminary background investigation on” the putative appointee. Letter for Alberto R. Gonzales, Counsel to the President, from Lanny A. Breuer, Covington & Burling, Tab C (Aug. 9, 2002) (“Covington Memorandum”). On May 31, 2000, the putative appointee submitted information requested of him for the background investigation. See id., Tabs G–H. By letter dated June 21, 2000, Mr. Nash congratulated the putative appointee “on your selection by the President to be a member” of the Council; in that same letter, he advised the putative appointee of forms that needed to be completed “in order for the appointment process to proceed.” Id., Tab I. On June 26, 2000, the Counsel’s Office sent a memorandum back to Mr. Nash reporting that it had “completed its clearance review of the nomination” of the putative appointee and advising that “such nomination may proceed.” Id., Tab J. On June 29, 2000, the Office of the Press Secretary released a statement that the President had “today announced his intent to appoint” the putative appointee and three other individuals to the Council. Id., Tab K. According to White House appointments practice, the following steps remained to be taken after the Counsel’s Office memorandum reporting on the background investigation. The Director of Presidential Personnel would then draft a memorandum to the President, stating that the appointment could proceed. This memorandum would go first to the Executive Clerk’s Office, so that the Executive Clerk could prepare either a commission, if time permitted, or an order of appointment, with a commission to follow. The Executive Clerk would then forward the memorandum and the appointment papers to the President, through the Staff Secretary. The President’s signature would typically be affixed by autopen. The package would then return to the Executive Clerk, who would record the appointment and transmit the appointment papers to the Department of State. 1 The statutory designation of appointing authorities for certain Council members and the inclusion of members of Congress on the Council raise serious constitutional questions that are beyond the scope of the issue that you have asked us to address. 52 Appointment of Member of Holocaust Memorial Council In the case of the putative appointee, a search of documents has not uncovered any memorandum from the Director of Personnel, nor has it uncovered a commission or order of appointment signed by President Clinton. We assume, for purposes of this analysis, that no commission or order of appointment exists. Each of the three other individuals whom the June 29 press release stated that President Clinton intended to appoint to the Council was thereafter appointed by commission. One commission was signed on July 28, 2000, and two other commissions were signed on September 5, 2000. On May 29, 2002, President Bush appointed another individual to serve as a Council member. President Bush appointed that individual to the same seat—“for a term expiring January 15, 2005 (vice Beth E. Dozoretz)”—to which the putative appointee had sought appointment. On January 9, 2003, counsel for the putative appointee provided your Office an affidavit that former President Clinton had signed on November 25, 2002, setting forth his understanding of the facts and law relating to the appointment process for the putative appointee. See Affidavit of William Jefferson Clinton (“Clinton Affidavit”), attached to Letter for David G. Leitch, Deputy Counsel to the President, from Robert A. Long, Jr., Covington & Burling (Jan. 9, 2003). In that affidavit, Mr. Clinton states: While serving as President of the United States, I made a final decision to appoint [the putative appointee] to serve as a member of the Holocaust Memorial Council and exercised the authority conferred on me as President of the United States to appoint him to that position. As described in detail below, I made a record of my decision to appoint [the putative appointee] by placing a check mark next to his name on a Decision Memorandum prepared for me by the Director of Presidential Personnel. My decision to appoint [the putative appointee] was final, subject only to the requirement that [the putative appointee] successfully complete a background check. [The putative appointee] satisfied this requirement, his appointment was publicly announced and he entered into service as a member of the Holocaust Council, where I understand he has served with honor for two years. Clinton Affidavit ¶ 4 (emphasis added). Mr. Clinton further states: As a matter of routine, members of the White House staff took the ministerial steps in connection with an appointment following completion of the background check, including issuing a press release, preparing and delivering a commission to the appointee, etc. These steps were not essential to the valid exercise of my Presidential power of appointment. Id. ¶ 9. 53 Opinions of the Office of Legal Counsel in Volume 27 II. We first address whether the putative appointee was actually appointed a member of the Council. The definitive statement of many aspects of appointment law is Chief Justice Marshall’s opinion for the Supreme Court in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).2 There, President John Adams had signed a commission to appoint William Marbury as a justice of the peace, and the seal of the United States had been affixed to the commission, but the commission had never been delivered. Although the case had to do with an appointment by the President with the Senate’s advice and consent, the Court’s analysis of the acts constituting or evidencing an appointment appears equally applicable to appointments by the President alone. According to Marbury, “[t]he appointment being the sole act of the president, must be completely evidenced, when it is shown that he has done everything to be performed by him.” Id. at 157. Typically, that last act is the President’s signing a commission for the appointee. However, because the Constitution treats as separate the making of an appointment and the issuing of a commission, the appointment might “be evidenced by any public act other than the commission.” Id. at 156. In either case—the signature on a commission or the other public act – the “appointment is evidenced by an open, unequivocal act; and being the last act required from the person making it, necessarily excludes the idea of its being, so far as respects the appointment, an inchoate and incomplete transaction.” Id. at 157. We believe that under the White House’s regular appointments practice the signing of a commission or an appointment order would be the “open, unequivocal act,” id. (emphasis added), showing the appointment to be complete; and on the facts as we understand them, no such document was signed. Nor was there any other “open, unequivocal act” of appointment. Therefore, the appointment of the putative appointee was never made. The documents made available to us, which were prepared in or issued by officials at the White House, indicate that until the signing of a commission or appointment order, an appointment was still “inchoate and incomplete.” Id. After the President checked “Approve” on the memorandum conveying the recommen- 2 Whether or not members of the Council appointed by the President are “Officers of the United States” in the constitutional sense, see U.S. Const. art. II, § 2, cl. 2, the statute providing for their appointment calls for applying the principles applicable to appointment of such officers. Under the statute, these members are “appointed . . . by the President,” 36 U.S.C. § 2302(a), and “[i]n our view, the statute uses the term ‘appointment’ in the same sense as does the Constitution.” Federal Election Commission—Appointment of Members (2 U.S.C. § 437), 2 Op. O.L.C. 359, 359–60 (1977). Furthermore, the practice has been to treat appointment of members in the same way as appointment of officers, both in the signing of commissions or appointment orders and in the affixing of the seal to the commissions. See 5 U.S.C. § 2902(a) (2000) (seal to be affixed to “the commission of an officer appointed by the President”). 54 Appointment of Member of Holocaust Memorial Council dations of the Office of Presidential Personnel, a memorandum from the Office of Presidential Personnel to the White House Counsel’s Office requested a “preliminary background investigation” on the candidate approved by the President. See Covington Memorandum, Tab C. When the background investigation was finished, the Counsel’s Office notified the Office of Presidential Personnel that the “nomination may proceed.” See id., Tab J. The press release then issued about the putative appointee and the three other persons selected announced the President’s “intent to appoint” those persons. See id., Tab K. These documents are inconsistent with the view that an appointment had already been made when the President checked the “Approve” line on the May 18 memorandum or when the press release was issued. Indeed, if a commission had been issued at the end of this process, it would have begun with these words: “Know ye, that reposing special trust and confidence in the Integrity and Ability of [name of appointee], I do appoint him [name of office], and do authorize and empower him to execute and fulfil the duties of that Office according to law.” See E-mail for Daniel L. Koffsky, Office of Legal Counsel, from G. Timothy Saunders, Executive Office of President, Re: Standard Straight Appointment Commission Language (Oct. 1, 2001). If an appointment order had been used, it also would have stated on its face that the President was then making the appointment: “I hereby appoint [name of appointee] to be a Member of the United States Holocaust Memorial Council for a term expiring [date].” The practice of the Executive Clerk, as explained to us, conforms to the conclusion that it is the commission or, when an appointment order is used, the appointment order that signifies the appointment: the Executive Clerk records the date of the appointment as the date of the commission or, in cases when an appointment order has first been issued, the date of the appointment order. The issuance of a commission or order of appointment, as well as the Executive Clerk’s recording of the date of appointment, makes up the “practice of the Executive” and provides the framework in which the events surrounding appointments are to be understood. See Bennett v. United States, 19 Ct. Cl. 379, 383 (1884).3 To be sure, the signature on the commission or appointment order might typically, although apparently not invariably, be inscribed by autopen rather than the President’s own hand. But “the executive practice which existed at that time in such cases . . . must be taken to have been done with the knowledge and consent of the President, if not by his express direction.” Id. at 385. The autopen, like the President’s own hand, could give effect to an instrument signifying that a person had been appointed. “Where the President’s signature is to appear on a document, the signature generally may be affixed by any means, such as . . . by the use of a 3 Within the framework of the White House’s appointments practice, we therefore do not agree with former President Clinton’s legal assertion that the execution of a commission or appointment order was “not essential” to his exercise of his appointment power. Clinton Affidavit ¶ 9. 55 Opinions of the Office of Legal Counsel in Volume 27 mechanical signature device.” Letter for John D. Ehrlichman, Counsel to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Att. at 7 (Mar. 20, 1969). The signing of the commission or appointment order, therefore, was the “last act required from the person making [the appointment],” Marbury, 5 U.S. at 157, and until that act, the appointment was “inchoate and incomplete,” id. The putative appointee nonetheless contends that he was actually appointed. He appears to rely either on the President’s checking the “Approve” line on the May 18 memorandum or on the June 29 White House press release stating the President’s “intent to appoint” the putative appointee. This argument, we believe, cannot overcome what the documents say. Reliance on the President’s checking the “Approve” line mistakes the character of the “open, unequivocal act” that shows an appointment to have been made. Marbury, 5 U.S. at 157. After such an unequivocal act, there can be no discretion as to the appointment, because the appointment is complete. The Court in Marbury, addressing an office with protected tenure, explained: The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it. Id. at 162. Even if the tenure of the office is not protected, the President is still without discretion as to the appointment. Although he may arrest the commission before delivery, he is then removing the officer, not declining to appoint him. Id. And it is, of course, not just the President who has no further discretion over the appointment. To his subordinates, too, are left only ministerial acts, such as putting the seal on the commission. Id. at 158. Here, when the President checked the “Approve” line on the May 18 memorandum, the “preliminary background investigation” of the putative appointee had not been completed. Former President Clinton’s own affidavit confirms this point: “My decision to appoint [the putative appointee] was final, subject only to the requirement that [the putative appointee] successfully complete a background check.” Clinton Affidavit ¶ 4 (emphasis added). The judgment whether, in light of the background investigations, the putative appointee was fit for office had not yet been made. Such judgment can be exceedingly delicate and, in any event, calls for the exercise of discretion. The act of checking the “Approve” line on the May 18 memorandum, therefore, cannot be the “unequivocal act” signifying an end to discretion about making an appointment. Nor does the June 29 press release show that the appointment had been completed. The press release announced only the President’s “intent to appoint” the 56 Appointment of Member of Holocaust Memorial Council putative appointee and three other persons. The reference is clearly to a future act, not to one that already had taken place on, or as of, a specified date. Indeed, each of the three other persons was later appointed by commission. For the putative appointee, “the last act required from the person making [the appointment]” was never performed. Marbury, 5 U.S. at 157. The appointment remained an “inchoate and incomplete transaction.” Id. III. On the assumption arguendo that the putative appointee was properly appointed a member of the Council, we next turn to the question whether he would remain a member. This question is easily answered. It has long been established that appointment of a successor to a removable officer has the effect of displacing the incumbent. See, e.g., Wallace v. United States, 257 U.S. 541, 545 (1922); Mullan v. United States, 140 U.S. 240, 246–47 (1891); Nominations for Prospective Vacancies on the Supreme Court, 10 Op. O.L.C. 108, 109 (1986). By subsequently appointing another individual to the same position4 that the putative appointee would have occupied, President Bush would have effected the putative appointee’s removal from that position. Therefore, even if (contrary to our conclusion) he had been properly appointed in the first instance, the putative appointee would no longer be a member of the Council. IV. Applying the same analysis as in the Kennedy Center Memorandum, we conclude that the putative appointee was never actually appointed to a position as a member of the Council. If he had been, President Bush’s appointment of another individual would have effected the putative appointee’s removal from that position. M. EDWARD WHELAN III Principal Deputy Assistant Attorney General Office of Legal Counsel 4 The other individual’s commission states that he was appointed “vice Beth E. Dozoretz.” If, contrary to fact, the putative appointee had previously been appointed to the seat previously occupied by Ms. Dozoretz, it would have been better form for his commission to state that he was appointed “vice [the putative appointee].” But any imperfection in form would not have affected the validity of the other individual’s appointment, so long as it would have been clear (as it would have) to which office he was being appointed. See Marbury, 5 U.S. at 157 (“appointment is evidenced by an open, unequivocal act”). 57

Write a legal research memo on the following topic.

Status of the Foreign Claims Settlement Commission The Foreign Claims Settlement Commission is subject to the Attorney General’s direction in administrative matters, except where that direction would interfere with the Commission’s independence in adjudicating claims. February 20, 2004 MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL Your office has asked for our opinion whether the Foreign Claims Settlement Commission (“Commission”) is subject to the Attorney General’s direction in administrative matters. We believe that it is subject to such direction, except where that direction would interfere with the Commission’s independence in adjudicating claims.1 I. The Commission consists of a Chairman and two members, who are appointed by the President with the Senate’s advice and consent and serve staggered threeyear terms. 22 U.S.C. § 1622c(a)–(c) (2000). It has “jurisdiction to receive, examine, adjudicate, and render a final decision with respect to any claim of the Government of the United States or of any national of the United States” under “claims agreement[s] . . . between the Government of the United States and a foreign government . . . providing for the settlement and discharge of claims” that the United States or its nationals have against the foreign government. 22 U.S.C. § 1623(a)(1)(B) (2000). The Commission itself, although it had institutional predecessors, was established by Reorganization Plan 1 of 1954, 68 Stat. 1279, codified at 22 U.S.C. § 1622 note (“Reorganization Plan”), and continued as a free-standing entity until 1980. At that time, it was “transferred to the Department of Justice as a separate agency within that Department.” 22 U.S.C. § 1622a (2000), codifying Pub. L. No. 96-209, § 101, 94 Stat. 96, 96 (1980); see also 28 C.F.R. § 0.128 (2003) (organization of Commission). Under the terms of the transfer, “[a]ll functions, powers, and duties of the [Commission] are . . . transferred with the Commission.” 22 U.S.C. § 1622b (2000). In addition, “[a]ll functions, powers, and duties not directly related to adjudicating claims are . . . vested in the Chairman, including the functions set forth in section 3 of Reorganization Plan 1 of 1954 and the authority to issue rules 1 We address only the statutory question of the Attorney General’s administrative control and do not consider the President’s authority to supervise the Commission or any constitutional issues that would arise to the extent the Commission might be insulated from control by the President. 4 Status of the Foreign Claims Settlement Commission and regulations.” Id. § 1622e (2000). The “functions” in that section of the Reorganization Plan are: all functions of the Commission with respect to the internal management of the affairs of the Commission, including but not limited to functions with respect to: (a) the appointment of personnel employed under the Commission, (b) the direction of employees of the Commission and the supervision of their official activities, (c) the distribution of business among employees and organizational units under the Commission, (d) the preparation of budget estimates, and (e) the use and expenditure of funds of the Commission available for expenses of administration. Reorganization Plan § 3. The Attorney General “shall provide necessary administrative support and services to the Commission.” 22 U.S.C. § 1622f (2000). Although the Chairman must follow the Department of Justice’s procedures in preparing “budget requests, authorization documents, and legislative proposals,” the Attorney General is to “submit these items to the Director of the Office of Management and Budget as proposed by the Chairman.” Id. The Attorney General has no power to review the Commission’s decisions on claims: “The decisions of the Commission with respect to claims shall be final and conclusive on all questions of law and fact, and shall not be subject to review by the Attorney General or any other official of the United States or by any court by mandamus or otherwise.” Id. § 1622g (2000). Moreover, nothing in the statute transferring the Commission to the Department “shall be construed to diminish the independence of the Commission in making its determinations on claims in programs that it is authorized to administer.” Id. Shortly after the Commission’s transfer to the Department, the Commission and the Justice Management Division began what turned out to be a continuing dispute about whether the Department could exercise administrative control over the Commission. The Assistant Attorney General for Administration seems to have argued in 1980 that the Commission “is subject to the administrative procedures and policies of the Department,” but the Commission found “this conclusion . . . contrary to the plain language of [the statute transferring the Commission to the Department] as well as its legislative history.” Memorandum from the Foreign Claims Settlement Commission of the United States, Re: Relationship Between the Department of Justice and the Foreign Claims Settlement Commission at 1 (undated) (“Undated Commission Memorandum”) (describing Memorandum for Richard W. Yarborough, Chairman, Foreign Claims Settlement Commission, from Kevin D. Rooney, Assistant Attorney General for Administration, Re: Relationship Between the Department of Justice and the Foreign Claims Settlement Commission (April 22, 1981)). The dispute recurred in 1996, when the Commis- 5 Opinions of the Office of Legal Counsel in Volume 28 sion disputed the Justice Management Division’s assertion that its Chairman needed to obtain authorization from the Department before undertaking foreign travel.2 In 2001, the issue arose again, in the context of determining the “employing agency” that may approve a Commission employee’s receipt of a decoration under the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342(d) (2000).3 The immediate issue about acceptance of a foreign gift or decoration was resolved by the Deputy Attorney General’s delegating to the Commission’s Chairman the power to grant the approval of the “employing agency” with respect to all officers or employees of the Commission except the Chairman himself. See Memorandum for the Deputy Attorney General, from Janis A. Sposato, Acting Assistant Attorney General for Administration, Re: Receipt of a Polish-Government Decoration at 3 (Sept. 28, 2001) (signature on approval line). At your office’s request, the larger issue of the Department’s administrative authority over the Commission was then referred to our Office. See Memorandum for Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, from Janis A. Sposato, Acting Assistant Attorney General for Administration, Re: Authority of Foreign Claims Settlement Commission (Jan. 31, 2002). II. We addressed a closely similar issue in Attorney General’s Authority with Respect to the Regulatory Initiatives of the U.S. Parole Commission, 14 Op. O.L.C. 139 (1990) (“1990 Opinion”). For reasons discussed below, we reaffirm the validity of that opinion. The statutes governing the United States Parole Commission (“USPC”) and the Commission are so similar as to require treating the two entities alike for purposes of the question here. 2 Memorandum for Mark Rodeffer, Finance Staff, Justice Management Division, from David E. Bradley, Chief Counsel, Foreign Claims Settlement Commission, Re: Foreign Travel by the Chair, Foreign Claims Settlement Commission (Feb. 2, 1996); Memorandum for Stephen R. Colgate, Assistant Attorney General for Administration, from Stuart Frisch, General Counsel, Justice Management Division, Re: Travel Authorizations for the Chairmen of the Foreign Claims Settlement Commission and U.S. Parole Commission (July 8, 1997). 3 See Memorandum for the Deputy Attorney General, from David E. Bradley, Chief Counsel, Foreign Claims Settlement Commission, Re: Proposed Acceptance of Decoration from the Ministry of Finance of the Government of Poland (Aug. 21, 2001); Memorandum for Janis A. Sposato, Acting Assistant Attorney General for Administration, from Stuart Frisch, General Counsel, Justice Management Division, Re: Authorization for [an Employee of] the Foreign Claims Settlement Commission to Receive and Retain a Polish-Government Decoration (Aug. 31, 2001); Memorandum for the Deputy Attorney General, from John R. Lacey, Chairman, Richard T. White, Commissioner, and Laramie F. McNamara, Commissioner, Foreign Claims Settlement Commission, Re: Delegation of Approval Authority Under the Foreign Gifts and Decorations Act (Dec. 12, 2001) (“2001 Commission Memorandum”). 6 Status of the Foreign Claims Settlement Commission A. We described the USPC in the 1990 Opinion: The Commission was established in 1976 as “an independent agency in the Department of Justice.” The legislative history of the Act that created the Commission states that Congress intended the Commission to be “independent for policy-making purposes” but that the Commission would be “attached to the Department of Justice for administrative convenience.” Indeed, the Conference Report on the bill stated that “[t]he Commission is attached to the Department solely for administrative purposes.” Congress granted the Commission independence from the Department because it wanted to ensure that “parole decisionmaking [would] be independent of, and not governed by, the investigative and prosecutorial functions of the Department of Justice.” 14 Op. O.L.C. at 141 (citations and parenthetical quotations omitted). In the 1990 Opinion, we considered the extent of the Attorney General’s authority in light of these provisions and, in particular, whether the Attorney General could “require the [USPC] to consult the Office of Policy Development (‘OPD’) concerning the [USPC’s] regulatory initiatives and to submit proposed regulations to OPD in advance of their submission to OMB’s Office of Information and Regulatory Affairs (‘OIRA’).” Id. at 139. We concluded that “the Attorney General has the authority to require the [USPC], as an administrative unit of the Department of Justice, to coordinate its regulatory activities with OPD and other components of the Department,” but that “[t]he [USPC’s] statutory status as an ‘independent agency’ within the Department . . . precludes the Attorney General as a general matter from asserting substantive control over the [USPC’s] policy-making, including its issuance of regulations.” Id. at 139–40. Ordinarily, the placement of an agency “within” the Department of Justice would subject the agency to the Attorney General’s administrative direction. By statute, the Attorney General “is the head of the Department of Justice.” 28 U.S.C. § 503 (2000). With certain exceptions, “[a]ll functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General,” id. § 509, and he may make “such provisions as he considers appropriate” to authorize other officers, employees, and agencies of the Department to carry out the functions vested in him, id. § 510. See also 5 U.S.C. § 301 (2000) (empowering the head of a department to “prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property”). These provisions, in almost all circumstances, grant the Attorney General both administrative and substantive 7 Opinions of the Office of Legal Counsel in Volume 28 control over the Department and the agencies within it. See Memorandum for Philip B. Heymann, Deputy Attorney General, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Creation of the Office of Investigative Agency Policies at 2 (Oct. 26, 1993) (“Congress specifically granted broad powers to the Attorney General, vesting in her virtually all the functions within the Department, and authorizing her to delegate any of her authorities.”) (citations omitted); Memorandum for D. Lowell Jensen, Associate Attorney General, from Ralph W. Tarr, Deputy Assistant Attorney General, Office of Legal Counsel at 2 n.1 (Aug. 23, 1983) (advisory commission located in the Department of Justice for administrative purposes). Although the 1990 Opinion did not explicitly refer to these provisions, they formed the evident background to our conclusion that “[b]ecause the [USPC] remains ‘attached’ to the Department for administrative purposes . . . the Attorney General may require the [USPC] to participate in Department-wide regulatory coordination that does not entail substantive control of the [USPC’s] regulatory initiatives.” 14 Op. O.L.C. at 142. Congress has dealt, in some detail, with the administrative powers of both the USPC and the Commission, and the powers conferred in both cases are quite similar. The statute on the USPC provides that its Chairman, among other things, may hire personnel, including for temporary and intermittent services, 18 U.S.C. § 4204(a)(2), (b)(3) (repealed prospectively by Continuing Appropriations—Comprehensive Crime Control Act of 1984, tit. II, § 218(a)(5), 98 Stat. 1837, 2027); “assign duties among officers and employees . . . so as to balance the workload and provide for orderly administration,” id. § 4204(a)(3); “direct the . . . use of funds made available to the [USPC],” id. § 4204(a)(4); “enter into and perform such contracts, leases, cooperative agreements, and other transactions as may be necessary in the conduct of the functions of the [USPC],” id. § 4204(b)(1); and accept voluntary services, id. § 4204(b)(2). Similarly, the statute governing the Commission enables it to hire personnel, including consultants and language experts, and to accept facilities, services, and reimbursed details from other agencies. 22 U.S.C. § 1622d (2000). It vests in the Chairman “[a]ll functions, powers, and duties not directly related to adjudicating claims,” including functions set forth in the Reorganization Plan, id. § 1622e. The Reorganization Plan, through this incorporation by reference, places under the Chairman’s control “the internal management of the affairs of the Commission,” including “the direction of employees of the Commission and the supervision of their official activities” and “the use and expenditure of funds of the Commission available for expenses of administration.” Reorganization Plan § 3. In the case of the USPC, we did not interpret the specific provisions on administrative authority as generally displacing the Attorney General’s authorities under 28 U.S.C. §§ 509 and 510 and 5 U.S.C. § 301.4 The conferral of specific authori4 Although the 1990 Opinion addresses only one specific case of administrative control, its conclusions are more general. In a footnote to the conclusion that the USPC’s being attached to the 8 Status of the Foreign Claims Settlement Commission ties on the constituent part of the Department, without more, did not mean that the same authority was not vested in the Attorney General under section 509. Because the Commission, too, is “within” the Department, see 22 U.S.C. § 1622a, the same principle would apply here, unless some valid ground for distinction between the Commission and the USPC can be found.5 B. When the legislation that transferred the Commission to the Department was being drafted, we wrote a bill comment stating that the “relationship of the Commission to the Department is similar to that provided for the United States Parole Commission, which is attached to the Department of Justice solely for administrative purposes.” Memorandum for Michael Dolan, Office of Legislative Affairs, from Larry A. Hammond, Acting Assistant Attorney General, Office of Legal Counsel, Re: Draft Bill to Transfer the Foreign Claims Settlement Commission of the United States to the Department of Justice (Jan. 24, 1979) (citations omitted) (“1979 Bill Comment”). There are, however, four principal arguments for the view that the two entities are dissimilar in administrative matters. First, according to the Undated Commission Memorandum, The Department of Justice conclusion that administration of the Commission rests with the Attorney General rather than the Chairman rests apparently on the thesis that the Congress intended the same authority in the Chairman of the [Commission] as was granted by legislation creating the Parole Commission. A comparison of the two statutes shows such conclusion to be totally without support. No where [sic] in the statute does Congress vest in the Parole Commis- Department for administrative purposes subjects it to Department-wide requirements for coordination, the 1990 Opinion notes that “Congress has expressly provided, however, that the Commission’s budgetary requests shall be separate from those of any other component of the Department.” 14 Op. O.L.C. at 142 n.4 (citation omitted). The plain implication is that the conclusion about the Attorney General’s power reaches other administrative matters, with budgetary requests being an express exception. 5 Regulations issued by the Department in 1981 appear to have treated the Commission as subject to the Attorney General’s direction in administrative matters. A delegation of the Attorney General’s authority to the Deputy Attorney General, which listed components reporting to the Deputy Attorney General, provided that “[t]he Foreign Claims Settlement Commission is under the supervision of the Deputy Attorney General for administrative purposes.” 46 Fed. Reg. 52,339, 52,341 (1981) (issuing 28 C.F.R. § 0.15(b)). Although the regulation elsewhere used the term “supervision and direction,” see id., the omission of “direction” was not consequential for present purposes, since the relationship of the Attorney General to the Deputy Attorney General was also described as one of “supervision.” See id. at 52,341 (“[s]ubject to the general supervision of the Attorney General”). The regulation was amended in 1988 to remove the specification of the units under the Deputy Attorney General and to substitute a general reference to the Deputy Attorney General’s “direct[ing] the activities of organizational units as assigned.” 53 Fed. Reg. 5370 (1988) (amending 28 C.F.R. § 0.15(b)). 9 Opinions of the Office of Legal Counsel in Volume 28 sion or its Chairman the broad powers vested in the Chairman of the [Commission] by section 105 of Public Law 96-209. Id. at 4. Section 105 is the provision under which “[a]ll functions, powers, and duties not directly related to adjudicating claims are hereby vested in the Chairman.” But although the statute on the USPC does not use the “[a]ll functions” formulation, it does state that the Chairman “shall . . . exercise such other powers and duties and perform such other functions as may be necessary to carry out the purposes of this chapter,” 18 U.S.C. § 4204(a)(7), and this catch-all appears, in practical effect, as broad as the provision to which the Undated Commission Memorandum points. The Chairman of the USPC, therefore, does not have appreciably narrower administrative authorities than the Chairman of the Commission, and the two entities cannot be distinguished on such a ground. Moreover, even before the Commission was transferred to the Department, “all functions of the Commission with respect to the internal management of the affairs of the Commission” were “vested in the Chairman.” Reorganization Plan § 3. Accordingly, the evident purpose for vesting authority in the Chairman was not to exclude the authority of the Attorney General, but to set the relative roles of the Chairman and the other members of the Commission. Second, under 22 U.S.C. § 1622f, “[t]he Chairman shall prepare the budget requests, authorization documents, and legislative proposals for the Commission within the procedures established by the Department of Justice, and the Attorney General shall submit these items to the Director of the Office of Management and Budget as proposed by the Chairman.” Thus, the Commission argues, “although [the statute] . . . refers to ‘procedures established by the Department of Justice,’ it limits the applicability of those only to ‘budget requests, authorization documents, and legislative proposals.’” 2001 Commission Memorandum at 3. At least as to budget requests, the Commission’s statute is hardly different from the USPC’s. By statute, the USPC’s appropriations requests “shall be separate from those of any other agency of the Department of Justice.” 18 U.S.C. § 4203(a)(3). In 1977, we construed this provision as protecting the USPC’s ability to request whatever amount it considered necessary for its operations, but not as precluding the Department from insisting on “the administrative mechanics of the budgetary submission procedure implemented by the Department of Justice on the instructions of the Office of Management and Budget.” Memorandum for James S. Jardine, Special Assistant to the Attorney General, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Interpretation of 18 U.S.C. 4203(a)(3), the Budgetary Authority of the United States Parole Commission at 2 (Oct. 27, 1977). In both cases, therefore, the special protections for the agency’s budget requests, as limited by the procedural requirements, are virtually identical. More generally, by making the Commission subject to certain administrative controls over the form of budget requests, authorization documents, and legislative 10 Status of the Foreign Claims Settlement Commission proposals, the Commission’s statute does not imply that the Commission is otherwise outside such controls. The statute supplies an additional, specific protection for the Commission’s requests in these areas, which are closely tied to its substantive work, and the reference to the Department’s procedures serves to set the limits of this additional protection. The draft version of the legislation transferring the Commission that we reviewed in 1979 appears to have provided that the Attorney General could attach his recommendations to the Commission’s budget requests, see 1979 Bill Comment at 1, and we “suggest[ed] that the Commission be authorized to submit its budget request without review and recommendations of the Attorney General in order to avoid undermining its independence from the Department.” We specifically offered the similar provision for the Parole Commission as a model. Id. The specific treatment of the procedures, budgets and similar matters should not be taken to imply that, in other areas not touching so directly on the Commission’s substantive work, the Attorney General lacks administrative control over the Commission. Third, “the paramount purpose of the 1980 act [transferring the Commission to the Department] was to streamline the Executive Branch by reducing the number of free-standing, individual agencies in it,” and “[t]here is no suggestion anywhere in the [committee] report of any intent to reduce the [Commission] Chairman’s administrative autonomy.” 2001 Commission Memorandum at 4. But, assuming that the legislative purpose was to streamline the executive branch, it might be perfectly consistent with that purpose for the Commission and its Chairman to be placed under the Attorney General’s administrative control. If, for example, the Commission no longer maintained separate approval mechanisms for various administrative matters, its integration into the Department’s mechanisms could promote consistency and allow the application of the expertise arising from the Department’s more extensive experience.6 Fourth, the Commission’s statute provides that “[t]he Attorney General shall provide necessary administrative support and services to the Commission.” 22 U.S.C. § 1622f. The requirement, in mandatory language, that the Attorney General provide administrative support and services arguably conflicts with the idea that the Commission, from an administrative standpoint, is sufficiently like other entities within the Department of Justice to be subject to the Attorney General’s administrative control. Those entities, as a matter of course, receive administrative support as directed by the Attorney General and his delegates. The statutory requirement for the Attorney General to provide administrative support to the Commission might seem to bespeak a more distant relationship. However, while provisions requiring that one entity or official support another usually apply to 6 We take no position, of course, on such issues as whether the Attorney General might want to delegate approval authorities to the Commission. The point is that Congress could have considered that the transfer of the Commission would increase efficiency by providing for the Commission to be integrated, as appropriate, into the Department’s administrative mechanisms. 11 Opinions of the Office of Legal Counsel in Volume 28 entities that are administratively distinct, see, e.g., 21 U.S.C. § 1908(d)(3) (2000) (the Attorney General and Treasury Secretary provide a legislative-branch commission “such administrative services, funds, facilities, and other support services as are necessary for the performance of the Commission’s duties”); 21 U.S.C. § 1704(c) (2000) (Administrator of General Services Administration is to provide Director of Office of National Drug Control Policy “such administrative support services as the Director may request”), they are not invariably found in that context, see Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 811(a)(1)(A), 110 Stat. 1214, 1312 (1996) (using particular identified funds, the Attorney General is to “provide support and enhance the technical support center and tactical operations of the Federal Bureau of Investigation”); 28 U.S.C. § 586(c) (2000) (United States Trustees are under the “general supervision of the Attorney General, who shall provide general coordination and assistance” to them). The provision on administrative support clarifies that, despite the Commission’s being a “separate agency” with the Department, 22 U.S.C. § 1622a, and its having separate authority over budgetary matters, id. § 1622f, the Attorney General may make available to the Commission the administrative resources of the Department. This clarification does not undermine the Attorney General’s authority over the Commission in administrative matters. C. To be sure, administrative control by the Attorney General in some cases could interfere with the substantive independence of the Commission, and, in those cases in which it would, we would not conclude that the Attorney General could exercise such control. As the 1990 Opinion shows, however, procedural requirements do not necessarily trench upon an agency’s substantive independence. 14 Op. O.L.C. at 142. We therefore cannot accept the categorical view that the independence of the Commission in its adjudicatory functions implies a similar independence from administrative controls. M. EDWARD WHELAN III Principal Deputy Assistant Attorney General Office of Legal Counsel 12

Write a legal research memo on the following topic.

Emoluments Clause and World Bank An international organization in which the United States participates, such as the International Bank for Reconstruction and Development, is not a “foreign State” under the Emoluments Clause, U.S. Const. art. I, § 9, cl. 8. May 24, 2001 MEMORANDUM OPINION FOR THE GENERAL COUNSEL SMITHSONIAN INSTITUTION This responds to your request for our opinion whether the Emoluments Clause, U.S. Const. art. I, § 9, cl. 8, bars Smithsonian Institution employees from performing special projects under contracts for the International Bank for Reconstruction and Development (“World Bank”). As we have advised orally on several occasions over the past few years, we do not believe that an international organization such as the World Bank in which the United States participates is a “foreign State” under the Clause. Id. Therefore, the Emoluments Clause would not forbid this type of arrangement. I. As we understand the arrangements in question, Smithsonian employees enter into contracts to perform special projects with the World Bank. The World Bank is an international organization of member states, which was created by the Articles of Agreement drawn up at a conference in Bretton Woods, New Hampshire in 1944. The United States joined the World Bank by accepting the Articles of Agreement in the Bretton Woods Agreements Act of 1945, 22 U.S.C. §§ 286286nn (1994 & Supp. IV 1999). See also Articles of Agreement of the International Bank for Reconstruction and Development, Dec. 27, 1945, 60 Stat. 1440, 2 U.N.T.S. 134. The United States has undertaken, with the consent of Congress, a prominent role in the organization’s management and decisionmaking. The United States governor appointed for the International Monetary Fund, another creation of the Bretton Woods Agreement, “shall also serve as a governor of the Bank,” 22 U.S.C. § 286a(a); and the President appoints an executive director for the Bank, id. Moreover, by tradition, the World Bank’s President is a national of the United States, which is the World Bank’s largest shareholder. See World Bank Group at a Glance, http://www.worldbank.org (last visited Mar. 6, 2001). The Emoluments Clause provides that no person holding an 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.” Id. The clause was designed to protect foreign ministers and other officers of the United States from undue influence and corruption by 113 227-329 VOL_25_PROOF.pdf 123 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 foreign governments. See, e.g., 2 The Records of the Federal Convention of 1787 389 (Max Farrand ed., rev. ed. 1966) (remarks of Mr. Pinkney); 3 id. at 327 (remarks of Governor Randolph); see also Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. 13, 15 (1994). Our Office has concluded that the prohibitions of the Emoluments Clause apply not only to constitutional officers—those officials who must be appointed pursuant to the Appointments Clause because they exercise “significant authority pursuant to the laws of the United States,” Buckley v. Valeo, 424 U.S. 1, 126 & n.162 (1976) (per curiam)—but also to government employees, “lesser functionaries” who are subordinate to officers, id. See Application of the Emoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 158 (1982) (“Application of the Emoluments Clause”) (“Even though the Framers may have had the example of high officials such as ‘foreign Ministers’ in mind when discussing the clause, . . . its policy would appear to be just as important as applied to subordinates. The problem of divided loyalties can arise at any level.”). The Emoluments Clause thus would cover Smithsonian employees. 1 We have also long found that contractual relationships such as those in question here give rise to “Emoluments” within the meaning of the Emoluments Clause. See, e.g., Memorandum for S.A. Andretta, Administrative Assistant Attorney General, from J. Lee Rankin, Assistant Attorney General, Office of Legal Counsel, Re: Payment of Compensation to Individual in Receipt of Compensation from a Foreign Government at 8 (Oct. 4, 1954) (“[T]he term ‘emolument’ . . . was intended to cover compensation of any sort arising out of an employment relationship with a foreign state.”); see also Letter for James A. Fitzgerald, Assistant Attorney General, United States Nuclear Regulatory Commission, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel (Mar. 24, 1986) (same). Absent the consent of Congress, the Emoluments Clause would, therefore, bar an employee of the Smithsonian from entering into such a contractual employment relationship with the World Bank if the World Bank is a “foreign State” under the Emoluments Clause. In recent years, this Office in oral advice has consistently construed the terms “King, Prince, or foreign State” to exclude international and multinational 1 This Office on previous occasions has given opinions to the Smithsonian Institution. See, e.g., Immunity of Smithsonian Institution from State Insurance Laws, 21 Op. O.L.C. 81 (1997). In doing so, we have observed that “the unique, hybrid nature of the Smithsonian” raises questions about its legal or governmental status. Id. at 86 n.7. As we have noted before, the Smithsonian Institution itself, as well as its structure, organization, oversight, and management, are established by federal statute. Id. at 81. Both this Office and federal courts have “recognized the Smithsonian’s status as an establishment, agency, or authority of the federal government, at least in certain contexts.” Id. at 82. Furthermore, “[t]he Smithsonian receives a substantial portion of its funding from federal appropriations, and a majority of its employees are from the federal civil service.” Id. at 81. Given this background, we assume, as you do, that Smithsonian personnel are covered by the Emoluments Clause. 114 227-329 VOL_25_PROOF.pdf 124 10/22/12 11:10 AM Emoluments Clause and World Bank organizations in which the United States participates. However, our few formal written opinions, going back to the 1950s, have not shown the same consistency. In our first statements on the issue in the early 1950s, we advised that the Emoluments Clause would not prohibit a federal judge from serving on the International Law Commission under the auspices of the United Nations. See Memorandum for the Attorney General, from J. Lee Rankin, Assistant Attorney General, Office of Legal Counsel, Re: Membership of Judge Parker on the International Law Commission (Nov. 27, 1953) (“1953 Rankin Memorandum”); Memorandum for Herzel H.E. Plaine, from D.C. Stephenson, Re: Article I, Section 9, Clause 8 of the Constitution—Its Meaning (Nov. 13, 1953) (“1953 Stephenson Memorandum”). At that time, we noted that because international organizations such as the United Nations were unknown when the Constitution was adopted, the framers of the Constitution could not have had in mind service on such organizations when considering the Emoluments Clause. Giving weight to the purposes behind the Clause, we concluded that it would not apply to international organizations such as the United Nations. See 1953 Rankin Memorandum at 4-5; 1953 Stephenson Memorandum at 10. Later, although not expressly reversing these earlier opinions, we voiced some doubt about this conclusion, at least with regard to the United Nations, noting that “employment by the United Nations Secretariat does contain elements comparable to accepting an office from a foreign government,” including “duties and responsibilities” owed to the organization comparable to that owed by an officer or employee of a government. See Memorandum for the Attorney General, from W. Wilson White, Assistant Attorney General, Office of Legal Counsel, Re: Appointments to Civil Rights Commission at 17 (Oct. 15, 1957) (“Accordingly, there is some basis for regarding United Nations employment as coming within the spirit if not the letter of the prohibition of Article I, Section 9, Clause 8 of the Constitution.”); cf. Applicability of Emoluments Clause to Proposed Service of Government Employee on Commission of International Historians, 11 Op. O.L.C. 89, 90 & n.4 (1987) (suggesting that “concerns expressed by the Framers in the Emoluments Clause would still be applicable” to government employee’s proposed service on international commission even if commission were established by international body, and noting inclusion of “any international or multinational organization” in definition of “foreign government” in Foreign Gifts Act; nevertheless, in case at issue, commission was established and funded by Austrian government). II. The conclusion that the World Bank is not a “foreign State” under the Emoluments Clause follows, first, from the language of the Clause. It would hardly be a natural use of the words to say that the United States is a member of a “foreign 115 227-329 VOL_25_PROOF.pdf 125 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 State.” See 22 U.S.C. § 286. 2 The World Bank has neither a defined territory nor a permanent population under its control. Because international organizations such as the World Bank were unknown when the Constitution was adopted, and because the framers of the Constitution thus did not contemplate service on such organizations when considering the Emoluments Clause, we have in the past looked to the purposes of the Clause in order to determine whether such an international organization is a “foreign State.” On that score, we believe that our first examinations of the question in the early 1950s were correct. See 1953 Rankin Memorandum; 1953 Stephenson Memorandum. Although the interests of the organization and the United States are not identical, the United States has determined that the organization plays an important role in carrying out our foreign policy. The United States accordingly participates in the governance of the organization and undertakes a leadership role in its decisionmaking. Because of the role played by the United States in the World Bank as approved by Congress, employment of government employees by the organization would not directly raise the concerns about divided loyalty that the Emoluments Clause was designed to address. To be sure, the Foreign Gifts and Decorations Act (“Foreign Gifts Act”), which generally prohibits employees from requesting or otherwise encouraging the tender of a gift or decoration given by a foreign government or from accepting or retaining such a gift of more than minimal value, defines “foreign government” to include international organizations. See 5 U.S.C. § 7342(a)(2)(B) (1994). Although the Foreign Gifts Act only covers gifts and decorations and does not apply to payment for services, see, e.g., Application of the Emoluments Clause, 6 O.L.C. at 157 (“It seems clear that this Act only addresses itself to gratuities, rather than compensation for services actually performed . . . .”), the Foreign Gifts Act arguably is relevant here if it reflects Congress’s understanding about the scope of the term “foreign State” in the Emoluments Clause. It is far from clear, however, that the definition of “foreign government” was intended to reflect Congress’s understanding of the constitutional definition of “foreign State.” The Foreign Gifts Act was originally enacted in 1966; international organizations were added to the definition of “foreign government” over a decade later in the 1977 amendments, see Foreign Relations Authorization Act, Fiscal Year 1978, Pub. L. No. 95-105, 91 Stat. 844, 863 (1977). The legislative history contains no indication that the addition was intended to correct a perceived gap between the existing 2 Furthermore, although not dispositive, the definition of “state” under international law is instruc- tive: Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities. Restatement (Third) of Foreign Relations Law of the United States § 201 (1987). 116 227-329 VOL_25_PROOF.pdf 126 10/22/12 11:10 AM Emoluments Clause and World Bank coverage of the Foreign Gifts Act and the scope of the Emoluments Clause. See, e.g., Report on Foreign Relations Authorization Act, Fiscal Year 1978, S. Rep. No. 95-194 (1977), reprinted in 1977 U.S.C.C.A.N. 1625; Report on Foreign Relations Authorization Act, Fiscal Year 1978, H.R. Rep. No. 95-537, at 40 (1977) (Conf. Rep.), reprinted in 1977 U.S.C.C.A.N. 1670. In the absence of any evidence that constitutional concerns motivated this change, it seems likely that the expansion of the scope of the Foreign Gifts Act to reach international organizations was motivated by policy concerns as opposed to constitutional ones. 3 We conclude that the World Bank is not a “foreign State” for purposes of the Emoluments Clause. The Clause therefore would not prohibit a Smithsonian employee from performing a special project under contract for the World Bank. DANIEL L. KOFFSKY Acting Assistant Attorney General Office of Legal Counsel 3 At any rate, even if Congress had interpreted the constitutional phrase, we would not view that construction as necessarily controlling. 117 227-329 VOL_25_PROOF.pdf 127 10/22/12 11:10 AM

Write a legal research memo on the following topic.

Overview of the War Powers Resolution Summary of previous Office o f Legal Counsel advice concerning the W ar Powers Resolution for the purpose o f providing guidance in future analyses of W ar Powers Resolution problems. October 30, 1984 M em orandum O p in io n for th e Attorney G eneral On a number of occasions during this Administration, this Office has pro­ vided both written and oral legal advice to you, the Deputy Attorney General, the Counsel to the President and the National Security Council regarding the War Powers Resolution (WPR). This advice has been rendered in connection with the deployment of United States Armed Forces in Lebanon, the provision of military assistance and intelligence to our allies in Central America, the deployment of sophisticated radar aircraft in Chad and in the Sinai, responses to an armed attack on our armed forces in the Gulf of Siddra, the deployment of troops to Grenada, and in various other circumstances. We have summarized the highlights of that advice and outlined certain historical information in this memorandum in order to provide guidance to you and to our respective succes­ sors in future analyses of War Powers Resolution problems. I. The War Powers Resolution: Summary of Provisions A. Stated Constitutional Basis The War Powers Resolution became effective on November 7, 1973 after Congress overrode President Nixon’s veto of the Resolution.1 It is codified at 50 U.S.C. §§ 1541-1548. Section 1 of the WPR sets out the name of the enactment; § 2 of the WPR states its purpose and the constitutional authorities upon which it is predicated. Its purpose is said “to fulfill the intent of the framers of the Constitution” to 1 President Nixon vetoed the W ar Pow ers R esolution on O ctober 24, 1973. H is veto m essage declared that the autom atic 60 day term ination provision, § 5(b), and legislative veto provision, § 5(c), w ere unconstitu­ tional. The veto w as overridden on N ovem ber 7 by a four vote margin in the House and by a substantial m argin in the Senate. S enator Javits, one o f the p nncipal sponsors o f the WPR, had hoped to avoid a veto. He felt that a W PR which was enacted w ith the approval o f the President would constitute a “com pact" between Congress and the President. Holt, The W ar Powers Resolution: The Role o f Congress in U.S. A rm ed Intervention 1-2 (1978). 271 insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent in­ volvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations. Id. Section 2(b) invokes the Necessary and Proper Clause of the Constitution. Section 2(c) declares that the President’s constitutional powers as Commanderin-Chief with respect to the introduction of United States Armed Forces into hostilities or situations in which hostilities are clearly indicated “are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” B. Consultation Section 3 of the WPR calls for consultation “with Congress” “in every possible instance .. . before introducing United States Armed Forces” into hostile situations and “regularly” thereafter until hostilities cease or those forces have been removed. C. Reporting under the WPR Section 4(a) of the WPR calls for a report to be filed with Congress within 48 hours in any case in which troops are introduced (1) into hostilities or into situations where imminent involve­ ment in hostilities is clearly indicated by the circumstances; (2) into the territory, air space or waters of a foreign nation, while equipped for com bat. . . ; or (3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation. . . . Section 4(a) provides that the report must set forth: (A) the circumstances necessitating the introduction o f United States Armed Forces; (B) the constitu­ tional and legislative authority under which the forces have been introduced; and (C) the estimated scope and duration of the deployment. Section 4(c) requires the President to report to Congress no less often than every six months, as long as the forces remain in the situation giving rise to the report. Under § 5(a), the report required by § 4(a)(1) (deployment into hostilities or situations where imminent involvement in hostilities is clearly indicated) must be transmitted to the Speaker o f the House and the President pro tempore of the Senate and to the House Committee on Foreign Affairs and the Senate Com­ mittee on Foreign Relations. 272 D. Removal o f Troops Section 5(b) provides that “[w]ithin sixty calendar days after a report is submitted or is required to be submitted pursuant to” § 4(a)(1), the President must terminate the use of United States Armed Forces unless Congress has declared war, enacted a specific authorization for the use of troops, or extended the 60 day period, or unless the President is unable to do so because of an armed attack on the United States. The President may extend the 60-day period by 30 days if “unavoidable military necessity respecting the safety o f ’ the forces “requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.” Section 5(c) contains an unconstitutional legislative veto device purporting to authorize Congress, acting by a concurrent resolution not subject to the President’s veto, to require removal of troops in any situation involving actual hostilities. This Administration testified before Congress that this provision was implicitly invalidated by the Court’s decision in INS v. Chadha, 462 U.S. 919 (1983).2 Congress has not disputed that conclusion. Indeed, the counsel to the House of Representatives came to virtually the same conclusion.3 E. Miscellaneous Provisions Section 6 of the WPR sets out expedited procedures for consideration by both Houses of joint resolutions extending the time of the deployment of troops under § 5(b). Section 7 does the same for the unconstitutional concurrent resolution procedure under § 5(c). Section 8 of the WPR contains certain other miscellaneous provisions. One expressly provides that authority to introduce United States Armed Forces into § 4(a)(1) situations “shall not be inferred” from any provision of law, including any appropriations provision, “unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities .. . and states that it is intended to constitute specific statutory authorization within the meaning o f ’ the WPR. This provision, along with a similar provision negating any similar inferences from any treaty, are intended to preclude Executive Branch reliance for deployments of United States Armed Forces on any ambiguous statutes (including appropriations laws) or treaties.4 Thus, under § 8 the President’s authority to deploy armed forces into hostilities must be grounded in his inherent constitutional powers unless Congress has specifically provided by statute for such deployment. Subsection § 8(c) states that under the WPR the term “‘introduction of United States Armed Forces’” includes the “assignment of members of such 2 H earings on the U.S. Suprem e Court D ecision G overning the Legislative Veto, before the H ouse Comm, on Foreign A ffairs, 98th Cong., 1st Sess. 63 (1983) (rem arks o f D eputy Attorney General SchmuUs). 3 Hearings, supra note 2, at 36 (agreeing that § 5(c) is “now presum ptively invalid"). 4 Prior to the enactment o f the W PR, m any enactm ents o f Congress, especially appropriations m easures, could justifiably have been regarded by the Executive as constituting im plied authority to continue the deploym ent o f o ur arm ed forces in hostilities 273 armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces of any foreign country or government are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.” II. Selected Facts, Historical Information, Analysis and Conclusions Regarding Applicability of the War Powers Resolution A. Executive Interpretation o f the Effect o f WPR The Executive Branch has taken the position from the very beginning that § 2(c) of the WPR does not constitute a legally binding definition of Presiden­ tial authority to deploy our armed forces. The Department of State’s position set forth in a letter of November 30, 1973 was that § 2(c) was a “declaratory statement of policy.” Were the Executive to concede that § 2(c) represented a complete recitation of the instances in which United States Armed Forces could be deployed without advance authorization from Congress, the scope of the Executive’s power in this area would be greatly diminished.5 Any attempt to set forth all the circumstances in which the Executive has deployed or might assert inherent constitutional authority to deploy United States Armed Forces would probably be insufficiently inclusive and potentially inhibiting in an unforseen crisis. However, some efforts have been made to itemize examples of such situations. In 1975, the Legal Adviser to the Depart­ ment of State listed six non-exclusive situations in which he contended the President had constitutional authority as Commander-in-Chief to direct United States Armed Forces into combat without specific authorization from Congress: 1. To rescue Americans; 2. To rescue foreign nationals where doing so facilitates the rescue of Americans; 3. To protect U.S. Embassies and legations; 4. To suppress civil insurrection in the United States; 5. To implement and administer the terms of an armistice or cease fire designed to terminate hostilities involving the United States; and 6. To carry out the terms of security commitments contained in treaties. 5 W h eth er § 2(c) w as to be viewed as an exhaustive, binding list o f the P resident's deploym ent powers was a m ajor issue betw een the H ouse and S en a te in 1973 and w as resolved by the Senate’s accession to the H ouse’s position that § 2 (c) could only be view ed as a statem ent o f policy. See H.R. Conf. Rep. No. 5 4 7 ,93d C ong., 1st Sess. 1 -2 (1 9 7 3 ). 274 Hearings on War Powers: A Test o f Compliance, Before the House Comm, on International Relations, 94th Cong., 1st. Sess. (Part VI) 90 (1975). The Legal Adviser went on to state that the Administration did “not believe that any single definitional statement can clearly encompass every conceivable situation in which the President’s Commander-in-Chief authority could be exercised.” Id. at 90-91. The President’s authority to deploy armed forces has been exercised in a broad range of circumstances during our history; 192 such exercises between 1798 and 1971 are documented in Emerson, War Powers Legislation, 74 W. Va. L. Rev. 53, 70 (1971). B. Hostilities The House Report on the WPR had used the word “hostilities” rather than “armed combat” because the former was considered broader. The term “hostili­ ties” was said to encompass “a clear and present danger of armed conflict.”6 The Ford Administration took the position that “hostilities” meant a situation in which units of our armed forces are “actively engaged in exchanges of fire.” It added that a situation involving “imminent hostilities” meant a situation in which there is a “serious risk” from hostile fire to the safety of United States Armed Forces. “In our view, neither term necessarily encompasses irregular or infrequent violence which may occur in a particular area.”7 C. Consultation After virtually every WPR incident, Members of Congress have complained about the level, extent or timeliness of whatever consultation actually occurred. Congress has repeatedly insisted that it have “real involvement in [the] decisionmaking.”8 In light of Chadha, there may be some significant constitu­ tional question regarding how there can be “real involvement” of Congress, as an institution, in such typically fast-breaking decisionmaking without formal legislative action by both Houses and submission to the President. Notwith­ standing this constitutional question, Members of Congress have generally been unsatisfied if the “consultation” has not occurred prior to the decisionmaking, has not included participation by the President himself as well as his staff, or because a perceived insubstantial number of Members have been involved in the consultations. Based upon the reactions by Members of Congress to the “Mayaguez” consultations by President Ford, it seems likely that virtually any level or degree of consultation will leave some Members unsatisfied. After the hostage 6 H.R. R ep No. 2 8 7 ,93d Cong., 1st. Sess. 7 (1973). 7 H earings on W ar Powers: A Test o f Compliance, before the H ouse Comm, on International Relations, 94th Cong., 1st Sess. 3 9 (1 9 7 5 ). 8 The W ar Pow ers Resolution: A Special Study o f the C om mittee on Foreign A ffairs 2 11 (H ouse Comm, on Foreign A ffairs 1982) (Foreign Affairs Special Study). 275 rescue mission in Iran, the Senate Committee on Foreign Relations asserted that “consultation” involves “permitting Congress to participate in the decisionmaking,” and that the judgment about whether consultation is required in a particular situation “must be made jointly by the President and Congress.”9 D. Reporting Requirement Early in this Administration, the Legal Adviser of the Department of State took the position that the reporting requirement of § 4(c), which calls for periodic reports “so long as such armed forces continue to be engaged in such hostilities or situation,” applies only to instances in which a deployment falls within the § 4(a)(1) category of report (actual or imminent hostilities). The rationale was that the word “situations” in § 4(a)(1) refers to “situations” where “imminent involvement in hostilities is clearly indicated by the circumstances.” Thus, the Legal Adviser contended that “situations” did not include § 4(a)(2) or § 4(a)(3) circumstances and that the latter conditions did not require a report. This Office disagreed for the following reasons: (1) The Executive has never taken the view that the reporting provisions present a constitutional issue and therefore there is no legal need to construe them narrowly to avoid a constitutional issue. (2) Congress could have specifically limited the requirement to § 4(a)(1) instead of § 4(a). It did so elsewhere in the WPR. The word “situations” is not in itself a limiting one or a term of art. (3) The language in the final version of § 4(c) of the WPR appeared for the first time in the Conference Report. The Senate bill is clearly limited in its reporting requirement to “hostile” situations. S. 440, accompanying S. Rep. No. 220, 93d Cong., 1st Sess. (1973). Thus, the Senate bill cannot be said to deter­ mine the meaning of the Conference version, which does not have such a limit in § 4(c). The debates on the Conference Report in the Senate and House suggest nothing about the con­ struction of § 4(c), as applied here. 119 Cong. Rec. 33547 et seq.; id. at 33858 et seq. The best support for the Department of State’s position is a sentence in the Conference Report which states that § 4 “requires supplementary reports at 9 O ne asp ect o f the W P R ’s “consultation” provision w orthy o f note here is that, because it does not absolutely require c o n su ltatio n in advance o f deploym ent in all cases (rather it requires consultation only “ in every possible in stan ce”), the consultation provision does not technically prevent the President from deploy­ ing U nited States A rm ed Forces for any p e rio d o f tim e. Thus, the consultation provision does not go as far as § 1005 o f H .R. 5119, considered during th e 98th C ongress, which, if enacted, w ould have purported to prev en t the P resident from deploying arm ed forces in connection w ith jo in t military exercises in Central A m erica un til a 3 0 -d a y “w aiting" period h a d passed after the intent to m ake such a deploym ent had been com m unicated to C ongress. 276 least every six months so long as those forces are engaged.” The use of the word “engaged” could be interpreted to mean active engagement rather than deployments such as the deployment of the Sinai force. H.R. Rep. No. 547,93d Cong., 1st Sess. 8 (1973). By itself, this single phrase in the conference report does not seem to overcome the relatively clear text of § 4(c). On balance, it seemed to serve no important purpose not to provide Congress with periodic updates regarding the status of troop deployments which have been reported under § 4. Finally, taking the position that periodic reports were required only with respect to § 4(a)(1) situations would, with respect to deploy­ ments greater than six months duration, require the Executive to take a position as to whether any given circumstance fell within § 4(a)(1) or § 4(a)(2). This Administration, like its predecessors, has believed it to be important not to have to be forced to take such a position with respect to any particular deployment of United States Armed Forces. This Administration determined to file periodic reports under § 4(c) in all situations. This practice has generally been followed. E. Rescue Operations According to a special study issued by the House Committee on Foreign Affairs, the majority of Members of Congress after the “Mayaguez” incident supported the concept that the President had constitutional authority to use armed forces for a rescue operation of the type involved in that incident. Foreign Affairs Special Study at 216. A staff memorandum to the Chairman of the House Committee on Foreign Affairs even cited historical examples of United States Armed Forces being used to protect American merchant ships and to punish those who interfered with United States shipping. One example cited was President Grant’s decision to send elements of the United States Navy to Korea to punish natives for murdering the crew of the American schooner “General Sherman” and burning the ship. Id.10 In 1980, we concluded that the President had constitutional authority to send a military expedition to rescue the hostages held in Iran or to retaliate against Iran if the hostages were harmed. “Presidential Power to Use the Armed Forces Abroad Without Statutory Autho­ rization,” 4A Op. O.L.C. 185 (1980). F. Justiciability During this Administration, two attempts to secure judicial resolution of the applicability of the WPR have been made by private litigants and have been rejected by the courts as presenting nonjusticiable issues. See Crockett v. Reagan , 558 F. Supp. 893 (D.D.C. 1982), a ffd , 720 F.2d 1355 (D.C. Cir. 10In D urand v. H o llin s, 8 F. Cas. 111 (C.C.S.D.N .Y . I8 6 0 ) (No. 186), the court upheld the legality o f the Executive’s decision to order the bom bardm ent o f a Nicaraguan town which had refused to pay reparations for an attack by a m ob on the U nited States Consul. 277 1983); Sanchez Espinoza v. Reagan, 568 F. Supp. 596 (D.D.C. 1983), a ffd , 770 F. 2d 202 (D.C. Cir. 1985). In addition, some Members of Congress have raised with the Administra­ tion, including this Office and the Office of the Counsel to the President, the question of the desirability and feasibility of the filing of litigation by Members of Congress to test the constitutionality of several provisions of the WPR. In this Office’s view, the Administration would generally have to resist, on constitu­ tional and jurisprudential grounds, the bringing of such issues before the federal courts. G. Implementation o f the WPR Attached as an appendix to this memorandum is a chart which itemizes each instance since the enactment o f the WPR in which the provisions of the WPR may arguably have been implicated. This chart shows whether the Executive filed a report under the WPR and describes the type of report filed. The only § 4(a)(1) report which has been filed was in connection with the “Mayaguez” incident, although the Ford Administration conceded after the fact that the Saigon evacuation was, in its view, a § 4(a)(1) situation. See Foreign Affairs Special Study, supra note 8, at 201. III. Major War Powers Resolution Situations During this Administration to Date A. El Salvador and Nicaragua As early as the spring of 1981, questions were raised by Members of Con­ gress and the media regarding the relationship between the WPR and various actions taken by the Executive in El Salvador and Nicaragua. The Administra­ tion took the position that the WPR had not been triggered by events in El Salvador. See Foreign Affairs Special Study at 249-52. On April 16, 1984, the Administration responded to specific questions from Representative Fascell regarding the involvement of United States Armed Forces in El Salvador. B. Sinai On March 19, 1982, the President transmitted to the Speaker and President p ro tempore a report consistent with § 4(a)(2) of the WPR covering the intro­ duction into the Sinai of United States Armed Forces as participants in the Multinational Force and Observers, a force created to assist in the implementa­ tion of the 1979 Treaty of Peace between Egypt and Israel. In that letter, the President stated that this deployment was “undertaken pursuant to Public Law No. 97-132 of December 29, 1981, and pursuant to the President’s constitu­ tional authority with respect to the conduct of foreign relations and as Commander-in-Chief of U.S. Armed Forces.” 278 C. Libya In August of 1981, two Libyan jet fighters attacked aircraft of the Sixth Fleet, which was conducting routine, scheduled operations in the Gulf of Siddra. Although Libya claimed that the area in which the attack occurred was Libyan airspace, the United States took the position that the airspace was over international waters. The Sixth Fleet aircraft downed the two Libyan aircraft. The Administration subsequently determined that a report pursuant to the WPR was not required because the isolated incident did not rise to the level of “hostilities” as defined in the WPR, and the occasion did not amount to the “introduction” of United States Armed Forces into hostilities as required by the WPR. The Administration took the position that this incident was an unantici­ pated and unwarranted attack on our aircraft in international territory, and that our aircraft defended themselves fully in accord with international law. The Administration expected no repetition of the incident and anticipated no further action by Libya to violate the rights of the vessels and aircraft of this Nation to travel in international waters and airspace. D. Lebanon The WPR was implicated vis-a-vis Lebanon when, in July of 1982, consider­ ation began of a plan to create a multinational military force to be placed in Lebanon to assume essentially peacekeeping duties. Because United States Armed Forces were to comprise a substantial element of the multinational force, we met on several occasions with representatives of the Office of the Counsel to the President, the Departments of Defense and State, and the National Security Council to address the issues raised and to prepare in draft the appropriate report. A report consistent with the WPR was ultimately transmitted to the Speaker and President pro tempore by the President on August 24, 1982. That report, like its predecessors, was made “consistent with the War Powers Resolution” and did not indicate whether it had been filed pursuant to § 4(a)(1) of the WPR (“hostilities”) or § 4(a)(2) (deployment of troops “equipped for combat”).11 By the time a second six-month report would have been due, the situation in Lebanon had worsened considerably, with United States Armed Forces increas­ ingly coming under attack. A § 4(c) report was submitted to the Speaker and President pro tempore by the President on August 30,1983. By early September of 1983, many Members of Congress were taking the position, publicly and privately, that § 5(b) of the WPR had been triggered because, in their view, United States Armed Forces were now engaged in “hostilities.” If § 5(b) had been triggered by these events, then § 5(b)’s 60-day clock on keeping United States Armed Forces in Lebanon would have begun to run. Debate over whether n In an exchange o f diplom atic letters betw een the U nited States and the G overnm ent o f Lebanon, the Lebanese G overnm ent stated: “ In carrying out its m ission, the American force will not engage in com bat. It may, however, exercise the right o f self-defense ” 279 § 5(b) had been triggered by those events became academic, however, because Congress moved to consider and enact a resolution specifically authorizing the retention of United States Armed Forces in Lebanon. On September 26, 1983, the Senate Committee on Foreign Relations re­ ported out a “compromise,” S.J. Res. 159, which had been negotiated with Congress by representatives of the President. On September 27, 1983, the President signed letters to a number of key congressional leaders expressing his intention “to seek Congressional authorization . . . if circumstances require any substantial expansion in the number or role of United States Armed Forces in Lebanon.” On October 19, 1983 the President signed S.J. Res. 159 into law and, in doing so, issued a signing statement which carefully reserved judgment on the several constitutional issues raised by S J. Res. 159. E. Chad On August 8, 1983, the President transmitted a report, consistent with the WPR, to the Speaker and President pro tempore in which he reported the introduction into Chad, at the request of that country’s government, of various warning and fighter aircraft, accompanied by air and ground logistical support forces. F. Grenada On October 25, 1983, the President transmitted to the Speaker and President pro tempore a report, consistent with the WPR, detailing the deployment to Grenada and surrounding waters of United States Armed Forces. G. Persian G ulf In early June of 1984, two Iranian F-4’s penetrated a “hot line” established by the Government of Saudi Arabia in the Persian Gulf. The Iranian aircraft were intercepted and shot down by Saudi F-15s inside the “hot line” but outside Saudi territorial waters. The Saudi F-15s were assisted as to target location and refueling by aircraft operated by United States Armed Forces which were at all relevant times flying in Saudi territorial air space on predetermined courses. A Saudi air controller provided the actual targeting information to the Saudi F-15s. It was determined subsequently that this one-time, unanticipated incident did not trigger the WPR because of the absence of hostilities. T h e o d o r e B. O lso n Assistant Attorney General Office o f Legal Counsel 280 APPENDIX POTENTIAL INVOCATIONS OF THE WAR POWERS RESOLUTION War Powers Report Filed/Not Filed Incident Report Date Nixon Administration Evacuation of Cyprus (military evacuation of Americans caught in hostilities) July 21-23, 1974 No report filed Cambodia Resupply Missions (airdrops) Summer 1974 No report filed Ford Administration Cambodian Reconnaissance Flights (isolated unanticipated firing) Fall 1974 No report filed Danang Sealift April 4, 1975 Pursuant to § 4(a)(2)12 Phnom Penh evacuation April 12, 1975 Pursuant to § 4 (The report said “taking note of § 4” without specifying a subsection.) 12 This w as the first report ever filed under the WPR. The text o f the report stated that President Ford was sending it “in accordance with my desire to keep Congress fully inform ed on the matter” and “ taking note o f ’ the provisions o f the W PR It did not concede the validity, o r accept the authority, of the W PR. 281 Incident Date Report Saigon evacuation (a major military operation with hostile fire and casualties) April 30, 1975 Pursuant to § 4 13 (The message stated that the “operation was ordered and conducted pursuant to the President’s constitutional executive power and his authority as Commander-in-Chief of the U.S. Armed Forces.”) Mayaguez (Cambodian Communist forces seize American merchant ship — U.S. forces sent on rescue mission; 18 American troops killed or missing and 500 presumed dead) May 12-16, 1975 Report filed in accordance with the President’s “desire that Congress be informed on this matter” and taking note of § 4(a)(1) of the WPR. Lebanon Evacuation (Navy used to evacuate Americans from Lebanon) June/July 1976 No report filed14 Korean Tree Cutting Incident (troops sent into DMZ to cut tree as retaliation for incident 3 days earlier in which American troops had been killed and wounded) August 21, 1976 No report filed15 13 T he Legal A d v iser o f the Department o f State later conceded in testim ony that this was a § 4(a)(1) situation, but because the operation was o v e r by the time the report was filed, no specification was necessary. See H earing, supra, at 9 -1 0 . 14 C ongress seem s to have implicitly co nceded that the W PR did not require a report or consultation in this incident. 15 Som e M em bers o f C ongress reacted w ith antagonism to the D epartm ent o f State’s position that no report o r con su ltatio n w as required in this incident, but the controversy subsided almost immediately. 282 Incident Date Report Zaire Airlift May 1978 No report filed Iran Rescue Operation April 26, 1980 Pursuant to the WPR (The report was based on a desire that Congress be informed, it was consistent with the reporting provisions of the WPR, and it asserted exercise of Commander-in-Chief powers; no advance consultation was made.)16 Reagan Administration El Salvador (security advisers/ defense attaches) Spring 1981/ August 1984 No report filed (advisers were armed but not “equipped” for combat) Gulf of Siddra, Libya August 19, 1981 No report filed Sinai March 19, 1982 Pursuant to § 4(a)(2) Lebanon August 24, 1982 Pursuant to the WPR Lebanon Sept. 29, 1982 Pursuant to the WPR Chad August 8, 1983 Pursuant to § 4 Lebanon August 30, 1983 Pursuant to § 4 Grenada October 25, 1983 Pursuant to § 4 Persian Gulf June 4, 1984 No report filed ,6 This incident spaw ned Crockett v. Reagan, 558 F. Supp. 893 (D .D C. 1982), a ffd , 720 F.2d 1355 (D.C. C ir 1983), which resulted in an opinion by the U nited States D istrict Court for the D istrict o f C olum bia dism issing the suit as nonjusticiable. See Part ILF supra. 283

Write a legal research memo on the following topic.

M arch 29, 1977 77-15 MEMORANDUM OPINION FOR THE SPECIAL ASSISTANT OFFICE OF THE SECRETARY OF DEFENSE Liability of Government for Retroactive Veterans’ Benefits Where Discharges Are Upgraded We have reviewed the proposed Discharge Review Program sent to the A ttorney General by your letter of March 9, 1977, with regard to the question of the Government’s liability to pay retroactive veterans’ benefits to recipients of upgraded discharges who become entitled to such benefits by reason of their receipt of an upgraded discharge. As more fully explained below, it is our opinion that the issuance of upgraded discharges under the Discharge Review Program will not impose any substantial liability on the Government for retroactive vet­ erans’ benefits. Section 3010 of Title 38, United States Code, establishes the basic rules for determining the effective dates o f awards of veterans’ benefits. In effect, for purposes of the Discharge Review Program, this section divides all potential recipients of upgraded discharges who are entitled to veterans’ benefits into tw o categories: (1) those who have previously applied for benefits and have had their claims denied because of the character of their discharges; and (2) those who never applied for benefits prior to their receipt of upgraded discharges, presumably be­ cause they knew they were not entitled to benefits due to the dishonor­ able character of their discharges. A veteran within the first category who becomes eligible for veter­ ans’ benefits by reason of the Discharge Review Program will be entitled to benefits commencing on whichever o f the following is later: (1) when he files for review of his discharge under the Discharge Review Program; or (2) the date when the disallowed claim was filed. 38 U.S.C. § 3010(i). Thus, such a veteran would not be entitled to retroactive benefits for the period preceding his application for an upgraded discharge. Of course, under § 3010(i) he would be entitled to retroactive benefits for the interval between his filing for a discharge review and the award of a discharge qualifying for veterans’ benefits, 46 assuming, as would most likely be the case, that his disallowed claim preceded his application for review of his discharge. A further limita­ tion in this subsection provides that no retroactive award may be made for any period more than one year prior to the reopening of the claim; i.e., if the newly eligible veteran delays in reopening his claim for veterans’ benefits more than one year after he applied for his upgraded discharge, any retroactive benefits awarded will be limited to 1 year. With respect to the second category, benefits generally will be pay­ able from a time not “earlier than the date of receipt of application therefor.” 38 U.S.C. § 3010(a). Thus, with respect to most new claims for benefits from recipients of upgraded discharges who had not previ­ ously sought benefits, no claim for retroactive benefits will lie. How ev­ er, certain types of benefits may be awarded retroactive to the event giving rise to the entitlement for benefits provided the claim is filed within one year of such event. 38 U.S.C. § 3010(b)-(h), (j)-(l), (n). However, since the veterans in question all were discharged on or before March 28, 1973, most of the events giving rise to an entitlement for benefits will have taken place more than a year ago and hence even the limited one-year retroactivity entitlement is barred. In those unusual cases where the event giving rise to benefits occurred within the past year, such as where an old service-connected injury resulted in perma­ nent and total disability within the past year (§ 3010(b)(2)), or when an old service-connected injury resulted in death during the past year (§ 3010(g)) (assuming that the Discharge Review Program will consider applications on behalf of decedents), the possibility exists of an award of benefits back to the date of the event, if within 1 year. We understand that the Veterans Administration estimates that the propor­ tion of veterans who would be entitled to any such retroactive pay­ ments would be small. John M. H armon Acting Assistant Attorney General Office o f Legal Counsel 47

Write a legal research memo on the following topic.

Legality of the Use of Military Commissions to Try Terrorists The President possesses inherent authority under the Constitution, as Chief Executive and Commander in Chief of the Armed Forces of the United States, to establish military commissions to try and punish terrorists captured in connection with the attacks of September 11 or in connection with U.S. military operations in response to those attacks. November 6, 2001 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT I. Background ...................................................................................................... 239 II. Military Commissions May Be Used to Try All Offenses Against the Laws of War ................................................................................................... 240 A. Congress Has Sanctioned the Broad Jurisdiction of Military Commissions to Try All Offenses Against the Laws of War................... 241 B. Even If Congress Had Not Authorized Creation of Military Commissions, the President Would Have Authority as Commander in Chief to Convene Them....................................................................... 245 C. The Use of Military Commissions to Inflict Punishments Without the Procedures Provided for Criminal Trials Under Article III, Section 2 and the Fifth and Sixth Amendments Is Constitutionally Permissible .... 249 1. U.S. Citizens...................................................................................... 254 2. Enemy Aliens Seized in the United States ........................................ 256 III. The President May Conclude That the Laws of Armed Conflict Apply to the Terrorist Attacks ....................................................................................... 260 A. Determining Whether War Exists Is a Question for the Political Branches .................................................................................................. 261 B. The Terrorist Attacks Have Created a Situation That Can Properly Be Considered War.................................................................................. 263 1. American Precedents......................................................................... 264 2. International Law Standards.............................................................. 270 IV. Under the Laws of War, the Terrorists Are Unlawful Combatants Subject to Trial and Punishment for Violations of the Laws of War .............. 276 You have asked us to consider whether terrorists captured in connection with the attacks of September 11 or in connection with ongoing U.S. operations in response to those attacks could be subject to trial before a military court. The Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. §§ 801-946, authorizes military commissions to try “offenders or offenses that by statute or by the law of war may be tried by military commissions.” 10 U.S.C. § 821 (2000). The Supreme Court has interpreted identical language (then included in Article 15 of the 238 227-329 VOL_25_PROOF.pdf 248 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists Articles of War in effect during World War II) to incorporate customary practice and to authorize trial by military commission 1 of any person subject to the laws of war for any offense under the laws of war. See Ex parte Quirin, 317 U.S. 1, 30 (1942). We conclude that under 10 U.S.C. § 821 and his inherent powers as Commander in Chief, the President may establish military commissions to try and punish terrorists apprehended as part of the investigation into, or the military and intelligence operations in response to, the September 11 attacks. * As we outline in Part I, ample precedent establishes that military commissions may be used to try and punish (even with death) offenders under the laws of war. The President both has inherent authority as Commander in Chief to convene military commissions and has received authorization from Congress for their use to the full extent permitted by past executive practice. In Part II, we explain that determining whether the laws of war apply in this context is a political question for the President to determine in his role as Commander in Chief. In addition, we outline factors that may be considered, based on past precedents, in determining whether the laws of war are applicable in the present conflict with terrorist forces. We explain that a declaration of war is not required to create a state of war or to subject persons to the laws of war, nor is it required that the United States be engaged in armed conflict with another nation. The terrorists’ actions in this case are sufficient to create a state of war de facto that allows application of the laws of war. Part III addresses briefly some representative offenses that might be charged under the laws of war. We will address more thoroughly the charges that could be brought before a military commission and the procedures that would be required before such a commission in a subsequent memorandum. I. Background A military commission is a form of military tribunal typically used in three scenarios: (i) to try individuals (usually members of enemy forces) for violations of the laws of war; (ii) as a general court administering justice in occupied territory; and (iii) as a general court in an area where martial law has been declared 1 Section 821 refers to four forms of military tribunal: courts-martial, military commissions, provost courts, and “other military tribunals.” Id. § 821. In this memorandum, we address military commissions, because that is the form of tribunal suited to hearing the charges contemplated here. * Editor’s Note: After this opinion was issued, the Supreme Court concluded in Hamdan v. Rumsfeld, 548 U.S. 557, 613 (2006), that military commissions established pursuant to a November 13, 2001 presidential order were inconsistent with the UCMJ and common Article 3 of the Geneva Conventions. Following Hamdan, Congress expressly authorized a system of military commissions pursuant to the Military Commissions Act of 2006, Pub. L. No 109-366, 120 Stat. 2600 (as amended by the Military Commissions Act of 2009, Pub. L. No. 111-84, tit. XVIII, 123 Stat. 2190, 2574). 239 227-329 VOL_25_PROOF.pdf 249 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 and the civil courts are closed. See generally William Winthrop, Military Law and Precedents 836-40 (2d ed. 1920) (“Winthrop”). The commission is convened by order of a commanding officer and consists of a board of officers who sit as adjudicators without a jury. See id. at 835. The commission’s decision is subject to review by the convening authority and is not subject to direct judicial review. Military commissions have been used throughout U.S. history to prosecute violators of the laws of war. “Since our nation’s earliest days, such commissions have been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war. They have been called our common law war courts.” Madsen v. Kinsella, 343 U.S. 341, 346-47 (1952). Military commissions have tried offenders drawn from the ranks of aliens and citizens alike charged with war crimes arising as early as the Revolutionary War, the Mexican-American War, and the Civil War, and as recently as World War II. See Quirin, 317 U.S. at 32 n.10, 42 n.14. President Lincoln’s assassins and their accomplices were imprisoned and even executed pursuant to convictions rendered by military commissions. Their offenses were characterized not as criminal matters but rather as acts of rebellion against the government itself. See Military Commissions, 11 Op. Att’y Gen. 297 (1865); Ex parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868) (No. 9899). Such use of military commissions has been repeatedly endorsed by federal courts, including as recently as this year. See Mudd v. Caldera, 134 F. Supp. 2d 138 (D.D.C. 2001). Military commissions are not courts within Article III of the Constitution, nor are they subject to the jury trial requirements of the Fifth and Sixth Amendments of the Constitution. See Quirin, 317 U.S. at 40. Unlike Article III courts, the powers of military commissions are derived not from statute, but from the laws of war. See Ex parte Vallandigham, 68 U.S. (1 Wall.) 243, 249-53 (1863). That is, their authority derives from the Constitution’s vesting of the power of Commander in Chief in the President. “Neither their procedure nor their jurisdiction has been prescribed by statute.” Madsen, 343 U.S. at 347. Instead, “[i]t has been adapted in each instance to the need that called it forth.” Id. at 347-48. “In general . . . [Congress] has left it to the President, and the military commanders representing him, to employ the commission, as occasion may require, for the investigation and punishment of violations of the laws of war.” Id. at 346 n.9 (quoting Winthrop at 831). II. Military Commissions May Be Used to Try All Offenses Against the Laws of War The Uniform Code of Military Justice (“UCMJ”) expressly addresses the use of military commissions in Article 21. See 10 U.S.C. § 821. Because that provision contains an explicit congressional authorization for military commissions, we begin by examining in Part II.A the scope of that authorization. We conclude that 240 227-329 VOL_25_PROOF.pdf 250 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists section 821 is quite broad and, by endorsing the customary uses of military commissions in U.S. military practice, authorizes military commission jurisdiction to try all offenses against the laws of war. Next, in part II.B, we explain that even if Congress had not sanctioned the use of military commissions to try all offenses against the laws of war, the President, exercising his authority as Commander in Chief, could order the creation of military commissions to try such offenses. Indeed, military commissions were created under presidential authority before they had any sanction in statutory law. Finally, in Part II.C, we examine constitutional objections that might be raised against the use of military commissions, particularly potential claims that they violate constitutional guarantees for trial by jury and a grand jury indictment. We conclude, as has the Supreme Court, that offenses charged under the laws of war before military commissions are outside the provisions of Article III and the Fifth and Sixth Amendments and thus that the rights to grand jury indictment and jury trial do not apply to such offenses. A. Congress Has Sanctioned the Broad Jurisdiction of Military Commissions to Try All Offenses Against the Laws of War The UCMJ addresses the jurisdiction of military commissions in Article 21, which is section 821 of title 10 of the United States Code. Section 821 is phrased somewhat unusually, because it does not create military commissions and define their functions and jurisdiction. Instead, it refers to military commissions primarily to acknowledge their existence and to preserve their existing jurisdiction. As explained more fully below, military commissions had been created under the authority of the President as Commander in Chief and used to try offenses against the laws of war before there was any explicit statutory sanction for their use. Section 821, which is entitled “Jurisdiction of courts-martial not exclusive,” thus states that “[t]he provisions of this chapter conferring jurisdiction upon courtsmartial do not deprive military commissions . . . of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions.” 10 U.S.C. § 821 (emphasis added). The jurisdictional provision for courts-martial that is cross-referenced is 10 U.S.C. § 818 (2000), which defines the jurisdiction of general courts-martial to include “jurisdiction to try any person who by the law of war is subject to trial by a military tribunal.” By its terms, section 821 takes the existence of military commissions as a given and clarifies that the establishment of broad jurisdiction in courts-martial will not curtail the powers of military commissions. By expressly preserving the jurisdiction of military commissions, section 821 necessarily provides a congressional authorization and sanction for their use. Indeed, the Supreme Court has concluded that identical language in the predecessor provision to section 821—Article 15 of the Articles of War—“authorized trial of offenses against the laws of war before such commissions.” Quirin, 317 U.S. at 241 227-329 VOL_25_PROOF.pdf 251 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 29 (emphasis added). See also id. at 28 (“By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war . . . .”). The fact that section 821 acknowledges and endorses the jurisdiction of an existing tribunal is important for properly understanding the scope of the authorization it contains. By its terms, the provision incorporates by reference the role of military commissions under the customary “law of war.” Thus, the section states that military commissions have jurisdiction over all “offenders or offenses that by statute or by the law of war may be tried by military commissions.” The apparent circularity of the language is explained by the fact that the section is endorsing the existing use of military commissions under military practice. The history of the provision also makes it abundantly clear that its purpose was to express congressional approval for the traditional use of military commissions under past practice. When the language now codified in section 821 was first included in the Articles of War in 1916, it was explicitly intended to acknowledge and sanction the pre-existing jurisdiction of military commissions. The language was introduced as Article 15 of the Articles of War at the same time that the jurisdiction of general courts-martial was expanded to include all offenses against the laws of war. The new Article 15 stated (like current section 821) that the “provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions . . . of concurrent jurisdiction in respect of offenders or offenses that by the law of war may be lawfully triable by such military commissions.” Act of August 29, 1916, 39 Stat. 619, 653. Judge Advocate General of the Army Crowder, the proponent of the new article, explained in testimony before the Senate that the military commission “is our common-law war court,” and that “[i]t has no statutory existence.” S. Rep. No. 64130, at 40 (1916). The new Article 15 thus was not establishing military commissions and defining their jurisdiction. Rather, as General Crowder explained, it was recognizing their existence and preserving their authority: “It just saves to these war courts the jurisdiction they now have and makes it concurrent with courtsmartial . . . .” Id.; see also S. Rep. No. 63-229, at 53 (1914) (testimony of Judge Advocate General Crowder before the House Committee on Military Affairs) (noting that the military commission “has not been formally authorized by statute” and explaining that the new Article 15 was designed to make clear that, through the expansion of the jurisdiction of courts-martial, the military commissions’ “common law of war jurisdiction was not ousted”). In explaining the history of the provision now codified in section 821, the Supreme Court has described the testimony of Judge Advocate General Crowder as “authoritative.” Madsen, 343 U.S. at 353. The Court thus determined that the effect of this language was to preserve for such commissions “the existing jurisdiction which they had over such offenders and offenses” under the laws of 242 227-329 VOL_25_PROOF.pdf 252 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists war. Id. at 352 (emphasis added). As the Court noted, because the statute simply recognized the existence of military commissions, “[n]either their procedure nor their jurisdiction has been prescribed by statute.” Id. at 347. As explained below, the fact that military commissions were used long before any reference to them appeared in the Articles of War demonstrates that the President has authority as Commander in Chief to create them without authorization (and free from any restriction) of Congress. Given the text and history of section 821, the provision must be read as preserving the broadest possible sweep for the traditional jurisdiction exercised by military commissions before they were expressly mentioned in statutory law. The statute, in other words, simply endorses and incorporates by reference Executive Branch practice. The Supreme Court has adopted precisely this understanding of the section and has thus explained that “[b]y . . . recognizing military commissions in order to preserve their traditional jurisdiction over enemy combatants unimpaired by the Articles [of War], Congress gave sanction . . . to any use of the military commission contemplated by the common law of war.” In re Yamashita, 327 U.S. 1, 20 (1946) (emphasis added); see also id. at 7 (stating that Congress “recognized the ‘military commission’ appointed by military command, as it had previously existed in United States Army Practice, as an appropriate tribunal for the trial and punishment of offenses against the law of war”). Similarly, the Court has explained that “Congress has incorporated by reference, as within the jurisdiction of military commissions, all offenses which are defined as such by the law of war.” Quirin, 317 U.S. at 30 (emphasis added); see also id. at 35 (relying on the “long course of practical administrative construction by [the] military authorities”). 2 Congress did not “attempt[] to codify the law of war or to mark its precise boundaries.” Yamashita, 327 U.S. at 7. Instead, it simply adopted by reference “the system of military common law.” Id. at 8. Indeed, if section 821 were read as restricting the use of military commissions and prohibiting practices traditionally followed, it would infringe on the President’s express constitutional powers as Commander in Chief. Cf. Quirin, 317 U.S. at 47 (declining to “inquire whether Congress may restrict the power of the Commander in Chief to deal with enemy belligerents” by restricting use of military commissions); id. (declining also to “consider the question whether the President is compelled by the Articles of War to afford unlawful enemy belligerents a trial before subjecting them to disciplinary measures”). A clear statement of congressional intent would be required before a statute could be read to effect such an infringement on core executive powers. See, e.g., Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 466 (1989). 2 The use of military commissions for members of the U.S. armed forces may be restricted by separate provisions in the UCMJ, and we do not address that issue here. 243 227-329 VOL_25_PROOF.pdf 253 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 The congressional sanction for the use of military commissions is a permissible exercise of Congress’s powers under the Constitution. Congress has authority not only to “declare War,” but also to “raise and support Armies,” and “make Rules for the Government and Regulation of the land and naval Forces.” U.S. Const. art. I, § 8, cls. 11, 12, 14. To the extent military commissions are used for enforcing discipline within the armed forces of the United States, Congress has authority to sanction their use. In addition, Congress has authority to “define and punish . . . Offences against the Law of Nations.” Id. art. I, § 8, cl. 10. Authorizing the use of military commissions to enforce the laws of war—which are considered a part of the “Law of Nations”—is certainly a permissible exercise of these authorities. See, e.g., Yamashita, 327 U.S. at 7 (explaining that congressional sanction for military commissions was an “exercise of the power conferred upon it by Article I, § 8, cl. 10 of the Constitution to ‘define and punish . . . Offenses against the Law of Nations . . .’ of which the law of war is a part”) (alteration in original); id. at 16 (“Congress in the exercise of its constitutional power to define and punish offenses against the law of nations, of which the law of war is a part, has recognized the ‘military commission’ appointed by military command, as it had previously existed in United States army practice, as an appropriate tribunal for the trial and punishment of offenses against the law of war.”). 3 Or, to be more precise, it is permissible at least so long as any congressional regulations do not interfere with the President’s authority as Commander in Chief. Cf. Quirin, 317 U.S. at 47 (declining to address “whether Congress may restrict the power of the Commander in Chief to deal with enemy belligerents” through regulations on military commissions); cf. also Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 87 (1874) (stating that the “President alone” is “constitutionally invested with the entire charge of hostile operations”). Given that section 821 simply gives sanction to the existing practice of the Executive in making use of military commissions, it does not on its face place any such restriction on the use of commissions. 3 See also Quirin, 317 U.S. at 28 (“Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning . . . the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals.”); cf. Madsen, 343 U.S. at 346 n.9 (“[I]t is those provisions of the Constitution which empower Congress to ‘declare war’ and ‘raise armies,’ and which, in authorizing the initiation of war, authorize the employment of all necessary and proper agencies for its due prosecution, from which this tribunal derives its original sanction. . . . The commission is simply an instrumentality for the more efficient execution of the war powers vested in Congress and the power vested in the President as Commander-in-chief in war.”) (quoting Winthrop at 831). 244 227-329 VOL_25_PROOF.pdf 254 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists B. Even If Congress Had Not Authorized Creation of Military Commissions, the President Would Have Authority as Commander in Chief to Convene Them The congressional authorization for military commissions in 10 U.S.C. § 821 endorses sufficiently broad jurisdiction for the commissions that there will likely be no need to rely solely on the President’s inherent authority as Commander in Chief to convene commissions in the present circumstances. As noted above, Congress has endorsed the pre-existing practice of permitting military commissions to try “all offenses which are defined as such by the law of war.” Quirin, 317 U.S. at 30. It is important, nevertheless, to note that the President has inherent authority as Commander in Chief to convene such tribunals even without authorization from Congress. The Commander in Chief Clause, U.S. Const. art. II, § 2, cl. 1, vests in the President the full powers necessary to prosecute successfully a military campaign. It has long been understood that the Constitution provides the federal government all powers necessary for the execution of the duties the Constitution describes. As the Supreme Court explained in Johnson v. Eisentrager, “[t]he first of the enumerated powers of the President is that he shall be Commander-in-Chief of the Army and Navy of the United States. And, of course, grant of war power includes all that is necessary and proper for carrying these powers into execution.” 339 U.S. 763, 788 (1950) (citation omitted); see also Lichter v. United States, 334 U.S. 742, 780 (1948) (“The powers of Congress and the President are only those which are to be derived from the Constitution but . . . the primary implication of a war power is that it shall be an effective power to wage the war successfully.”); Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 426 (1934) (stating that “the war power of the federal government” is “a power to wage war successfully”). One of the necessary incidents of authority over the conduct of military operations in war is the power to punish enemy belligerents for violations of the laws of war. The laws of war exist in part to ensure that the brutality inherent in war is confined within some limits. It is essential for the conduct of a war, therefore, that an army have the ability to enforce the laws of war by punishing transgressions by the enemy. 4 It was well recognized at the time of the Founding, moreover, that one of the powers inherent in military command was the authority to institute tribunals for punishing violations of the laws of war by the enemy. In 1780, during the Revolutionary War, General Washington as Commander in Chief of the Continen- 4 Cf. Request of the Senate for an Opinion as to the Powers of the President “In Emergency or State of War,” 39 Op. Att’y Gen. 343, 347-48 (1939) (“It is universally recognized that the constitutional duties of the Executive carry with them the constitutional powers necessary for their proper performance.”). 245 227-329 VOL_25_PROOF.pdf 255 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 tal Army appointed a “Board of General Officers” to try the British Major André as a spy. See Quirin, 317 U.S. at 31 n.9; Proceedings of a Board of General Officers, Held by Order of His Excellency Gen. Washington, Commander in Chief of the Army of the United States of America, Respecting Major John André, Adjutant General of the British Army, September 29, 1780 (Philadelphia, Francis Bailey 1780), as reprinted in Proceedings of a Board of General Officers Respecting Major John André (New York 1867), available at http://archive.org/details/ proceedingsofboa00andr (last visited May 22, 2012). At the time, there was no provision in the American Articles of War providing for jurisdiction in a courtmartial to try an enemy for the offense of spying. See George B. Davis, A Treatise on the Military Law of the United States 308 n.1 (1913) (“Davis”) (explaining that the tribunal used to try André cannot properly be considered a court-martial, because under the then-existing Articles of War, courts-martial could not try members of the enemy forces for the offense of spying); Winthrop at 961 (reprinting American Articles of War of 1776). The term “Commander in Chief” was understood in Anglo-American constitutional thought as incorporating the fullest possible range of power available to a military commander. See John Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Calif. L. Rev. 167, 252-54 (1996). In investing the President with full authority as Commander in Chief, the drafters of the Constitution surely intended to give the President the same authority that General Washington possessed during the Revolutionary War to convene military tribunals to punish offenses against the laws of war. The history of military commissions bears out this conclusion, because as a matter of practice military commissions have been created under the President’s inherent authority as Commander in Chief without any authorization from Congress. In April, 1818, for example, General Andrew Jackson convened military tribunals to try two English subjects, Arbuthnot and Ambrister, for inciting the Creek Indians to war with the United States. See Winthrop at 464, 832. The subjects were convicted and executed accordingly. Id. As one author explained, General Jackson “did not find his authority to convene [these tribunals] in the statutory law, but in the laws of war.” William E. Birkhimer, Military Government and Martial Law 353 (3d ed. 1914) (“Birkhimer”). Similarly, in the Mexican American War in 1847, General Winfield Scott appointed tribunals called “council[s] of war” to try offenses under the laws of war and tribunals called “military commission[s]” to serve essentially as occupation courts administering justice for occupied territory. See, e.g., Winthrop at 832-33; Davis at 308. There was no statutory authorization for these tribunals, and they were thus instituted by military command (necessarily under authority derived from the 246 227-329 VOL_25_PROOF.pdf 256 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists President’s authority as Commander in Chief) without sanction from Congress. 5 In later practice, both functions (that is, the role of war courts and courts of occupation) were performed by tribunals known as “military commission[s].” Thus, after the outbreak of the Civil War, military commissions were convened to try offenses against the laws of war, see Davis at 308 n.2, and under the general orders drafted for the governance of the Army in 1862, commanders were authorized to convene military commissions to try offenses against the laws of war, see Winthrop at 833. It was not until 1863 that military commissions were even mentioned in a statute enacted by Congress. In that year, Congress authorized the use of military commissions to try members of the military for certain offenses committed during time of war. See Act of Mar. 3, 1863, § 30, 12 Stat. 731, 736. The statute, moreover, did not purport to create military commissions. Rather, it acknowledged that they could be used as alternatives to courts-martial in some cases. As explained above, the current provision in section 821 of the UCMJ also does not create military commissions or define exhaustively their authority. Instead, its history shows that it was adopted to preserve the jurisdiction of what was recognized as a pre-existing tribunal. Precisely because it confirms that military commissions existed before any express congressional authorization, the history of section 821 also supports the conclusion that the President has constitutional authority to convene commissions even without legislation authorizing them. Subsequent discussions of the use of military commissions by the Supreme Court reflect the same understanding that the use of military tribunals is a necessary part of the tools of a commander conducting a military campaign. For example, as the Court explained in Yamashita, “[a]n important incident to the conduct of war is the adoption of measures by the military commander, not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law of war.” 327 U.S. at 11. Although the Court was addressing a situation in which Congress had recognized this power in the commander of armed forces, the logic of the Court’s explanation suggests that the power to convene military commissions is an inherent part of the authority the Constitution confers upon the President by naming him Commander in Chief of the armed forces. 6 5 See Davis at 308 (explaining that military commissions “are simply criminal war-courts, resorted to for the reason that the jurisdiction of courts-martial, created as they are by statute, is restricted by law, and cannot be extended to include certain classes of offenses, which in war would go unpunished in the absence of a provisional forum for the trial of the offenders”). 6 See also Winthrop at 57 ([T]he “President is invested with a general and discretionary power to order statutory courts-martial for the army, by virtue of his constitutional capacity as Commander-inchief, independently of any article of war or other legislation of Congress.”); id. at 835 (“The President, as Commander-in-chief, may of course assemble military commissions as he may assemble courts-martial.”); Birkhimer at 357 (“Military commissions may be appointed either under provisions of law in certain instances, or under that clause of the Constitution vesting the power of commander-in- 247 227-329 VOL_25_PROOF.pdf 257 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 Similarly, the same conclusion is buttressed by the reasoning Justice Douglas advanced in support of the President’s authority to establish the international war crimes tribunals after World War II without any authorization from Congress. As Justice Douglas explained: The Constitution makes the President the “Commander in Chief of the Army and Navy of the United States . . . .” Art. II, § 2, Cl. 1. His power as such is vastly greater than that of troop commander. He not only has full power to repel and defeat the enemy; he has the power to occupy the conquered country, and to punish those enemies who violated the law of war. Hirota v. MacArthur, 338 U.S. 197, 207-08 (1948) (Douglas, J., concurring) (alteration in original, citations omitted); see also id. at 215 (“[T]he capture and control of those who were responsible for the Pearl Harbor incident was a political question on which the President as Commander-in-Chief, and as spokesman for the nation in foreign affairs, had the final say.”). As the Supreme Court recognized in Hirota, the President’s power as Commander in Chief extended to the novel creation of new, multinational tribunals to try the enemy for war crimes. Given that broad authority, the President’s power surely extends to the appointment of military commissions consisting solely of American officials. An opinion of the Attorney General issued at the end of the Civil War supports the same conclusion. In 1865, Attorney General Speed addressed the use of military commissions to try those accused in the plot to assassinate President Lincoln and explained that even if Congress had not provided for the creation of military commissions, they could be instituted by military commanders as an inherent incident of their authority to wage the military campaign: [M]ilitary tribunals exist under and according to the laws and usages of war in the interest of justice and mercy. They are established to save human life, and to prevent cruelty as far as possible. The commander of an army in time of war has the same power to organize military tribunals and execute their judgments that he has to set his squadrons in the field and fight battles. His authority in each case is from the law and usage of war. Military Commissions, 11 Op. Att’y Gen. at 305. The Attorney General thus concluded that “in default of Congress defining . . . the mode of proceeding to ascertain whether an offense [against laws of war] has been committed,” the chief in the President, who may exercise it either directly or through subordinate commanders.”) (footnote omitted). 248 227-329 VOL_25_PROOF.pdf 258 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists commander of the armed forces could institute tribunals to undertake the task. Id. at 310. The Supreme Court has never squarely addressed the question whether the President may convene military commissions wholly without congressional authorization. In Quirin, the Court expressly declined to decide “to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation.” 317 U.S. at 29. And in later cases the Court has remained uncommitted. Thus, in Madsen, for example, the Court stated that “[i]n the absence of attempts by Congress to limit the President’s power, it appears that, as Commander-in-Chief of the Army and Navy of the United States, he may, in time of war, establish and prescribe the jurisdiction and procedure of military commissions.” Madsen, 343 U.S. at 348. At the same time, however, the Court cautioned that the “policy of Congress to refrain from legislating in this uncharted area does not imply its lack of power to legislate.” Id. at 348-49. For the reasons outlined above, we conclude that the best understanding of the Constitution is that the President does have the power, as Commander in Chief, to create military commissions to try enemy belligerents for offenses against the laws of war even in the absence of the congressional sanction for their use in section 821. C. The Use of Military Commissions to Inflict Punishments Without the Procedures Provided for Criminal Trials Under Article III, Section 2 and the Fifth and Sixth Amendments Is Constitutionally Permissible The most likely constitutional issue to be raised concerning military commissions would be an objection to the denial of the rights to trial by jury in criminal cases and grand jury indictment as provided in Article III, Section 2 and the Fifth and Sixth Amendments. 7 Such objections would most likely be raised with respect to military commissions convened within the territorial United States, and we address them in that context. We believe that if a particular use of military commissions to try offenses against the laws of war is constitutionally permissible within the United States, it follows a fortiori that such a use is permissible to deal with enemy belligerents overseas, where many constitutional protections would not apply in any event. 7 Article III, Section 2 provides: “The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury . . . .” The Fifth Amendment provides: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces . . . .” The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .” 249 227-329 VOL_25_PROOF.pdf 259 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 It has long been settled that the guarantees to trial by jury in criminal cases contained in the Constitution were not intended to expand the rights to these procedures beyond those that existed at common law. See, e.g., Callan v. Wilson, 127 U.S. 540, 549 (1888). As Justice Story explained in his Commentaries, in these provisions, the Constitution “does but follow out the established course of the common law in all trials for crimes,” Joseph Story, 2 Commentaries on the Constitution of the United States § 1791 (1833), and thus the provisions in Article III and the Sixth Amendment are “to be taken as a declaration of what those rules were.” Callan, 127 U.S. at 549. To the extent that certain offenses, even if technically deemed “criminal,” could be tried without indictment and without a jury at common law, the Supreme Court has consistently held that they may be tried without a jury under the Constitution. Thus, petty offenses triable at common law without a jury may be tried without a jury under the Constitution, see Schick v. United States, 195 U.S. 65, 68-70 (1904), as can criminal contempts, see, e.g., In re Terry, 128 U.S. 289, 303 (1888). See also Lewis v. United States, 518 U.S. 322, 325 (1996) (“It is well established that the Sixth Amendment, like the common law, reserves this jury trial right for prosecutions of serious offenses, and that ‘there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision.’”) (quoting Duncan v. Louisiana, 391 U.S. 145, 159 (1968)). The Fifth Amendment right to grand jury indictment similarly arises out of the common law. See Smith v. United States, 360 U.S. 1, 9 (1959) (“The use of indictments in all cases warranting serious punishment was the rule at common law” and “[t]he Fifth Amendment made the rule mandatory”) (citations omitted); Ex parte Wilson, 114 U.S. 417, 423 (1885) (“The fifth amendment, declaring in what cases a grand jury should be necessary, . . . in effect, affirm[ed] the rule of the common law upon the same subject”). At the time of the Founding, it was well settled that offenses under the laws of war were a distinct category of offense, unlike criminal offenses against the civil law, and were subject to trial in military tribunals without the benefits of the procedures of the common law enshrined in the Constitution. The Articles of War of 1776, for example, made it clear that courts-martial could be convened to try offenders under the Articles without a jury or grand jury. See Winthrop at 967 (reproducing Articles). Similarly, as noted above, a “Board of General Officers” was used in 1780 to try the British Major André on the offense of spying. See Quirin, 317 U.S. at 31 n.9. Indeed, throughout the Revolutionary War, military tribunals were used to try offenders without a jury. See id. at 42 n.14. The text of the Constitution itself makes the distinct nature of military tribunals clear, as the Fifth Amendment expressly excludes “cases arising in the land or naval forces” from the guarantee of a grand jury indictment. U.S. Const. amend. V. Cf. Middendorf v. Henry, 425 U.S. 25, 49-50 (1976) (Powell, J., concurring) (“Courtmartial proceedings, as a primary means for the regulation and discipline of the Armed Forces, were well known to the Founding Fathers. The procedures in such 250 227-329 VOL_25_PROOF.pdf 260 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists courts were never deemed analogous to, or required to conform with, procedures in civilian courts.”). Precisely because military discipline was viewed as wholly apart from the ordinary criminal law and the provisions in the Constitution relating to it, the Supreme Court has long recognized that military commissions do not exercise judicial power under Article III and are not subject to judicial review. See, e.g., Vallandigham, 68 U.S. 243. Thus, under the settled understanding that the rights to jury trial and grand jury indictment do not extend beyond the cases where they were available at common law, those rights simply do not extend to trials before military tribunals for offenses against the laws of war. Such trials never included indictment or jury trial at the time of the Founding. The Supreme Court endorsed precisely this reasoning to reject constitutional challenges to the use of military commissions to try and execute violators of the laws of war during and after World War II. In Quirin, for example, eight German saboteurs were apprehended in the United States by the FBI, turned over to the military, tried by military commission, and sentenced to death. See 317 U.S. at 18-24. In addressing a petition for habeas corpus, the Supreme Court addressed precisely the question at issue—“whether it is within the constitutional power of the National Government to place [these defendants] upon trial before a military commission”—without the protections of Article III and the Fifth and Sixth Amendments. Id. at 29. The Court concluded that there was no constitutional barrier to use of the military commission. As the Court explained, the guarantees in Article III and the Fifth and Sixth Amendments must be understood in light of the common law at the time of the Founding. Military tribunals, the Court noted, “are not courts in the sense of the Judiciary Article,” and juries had never been part of their procedures. Id. at 39. In particular, the Court pointed to a statute of 1806 concerning trials for spies as reflective of the contemporary understanding of the constitutional guarantees. That statute imposed the death penalty on alien spies “according to the law and usage of nations, by sentence of a general court martial.” Act of Apr. 10, 1806, ch. 20, § 2, 2 Stat. 359, 371. As the Court explained, this “enactment must be regarded as a contemporary construction of both Article III, Section 2, and the Amendments as not foreclosing trial by military tribunals, without a jury, of offenses against the laws of war committed by enemies not in or associated with our Armed Forces.” 317 U.S. at 41. Thus, the Court concluded that offenses cognizable under the laws of war in military tribunals at the time of the Founding could continue to be tried before such tribunals under the Constitution: “In the light of this long-continued and consistent interpretation we must conclude that § 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the laws of war not triable by jury at common law be tried only in the civil courts.” Id. at 40. 251 227-329 VOL_25_PROOF.pdf 261 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 The Court reaffirmed that conclusion in subsequent cases. See Yamashita, 327 U.S. 1 (trial by U.S. military commission of Japanese military governor of the Phillippines for various war crimes committed under his command); Johnson v. Eisentrager, 339 U.S. 763, 787-90 (1950) (trial of German officers in China by U.S. military commission for aiding Japanese after Germany’s surrender); id. at 786 (“The jurisdiction of military authorities, during or following hostilities, to punish those guilty of offenses against the laws of war is long established.”); cf. Duncan v. Kahanamoku, 327 U.S. 304, 313-14 (1946) (referring to the “wellestablished power of the military to exercise jurisdiction over . . . enemy belligerents, prisoners of war, or others charged with violating the laws of war”). 8 As the Quirin and Yamashita Courts explained, their decisions rested upon long-established practice throughout the history of the United States—extending back to the Founding and before—demonstrating that any enemy belligerent charged with a violation of the laws of war may be tried by military tribunal. The Court traced the history of military commissions explained above and noted, among others, the use of boards functionally equivalent to military commissions in the Revolutionary War, see Quirin, 317 U.S. at 31 n.9, the Mexican-American War, see id. at 32 n.10, and during and after the Civil War, id. Military commissions, in fact, were used to try those charged with the assassination of President Lincoln. See Military Commissions, 11 Op. Att’y Gen. 297; Mudd, 17 F. Cas. 954. The primary support for constitutional arguments to restrict the use of military commissions would be based on the Supreme Court’s decision in Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). There, the Court held that a military commission could not be used to try a U.S. citizen in the United States for alleged violations of the laws of war, except in areas where martial law has been proclaimed and the civil courts are closed. See id. at 121-22. In Milligan, a U.S. citizen resident in Indiana was arrested by the military, charged with providing aid and comfort to the Confederacy, tried by military commission, and sentenced to death. See id. at 107-08. In addressing a petition for a writ of habeas corpus, the Court rejected the suggestion that the President had full authority to use military commissions to the extent permitted by the “‘laws and usages of war.’” Id. at 121. The Court refused even to inquire into what those usages might be, because “they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed.” Id.; see also id. at 123 (noting that persons in military service are subject to military tribunals, but “[a]ll other persons, citizens of states where the courts are open . . . are guaranteed the inestimable privilege of trial by jury”); id. at 121-22 (“[N]o 8 After World War II, entirely apart from the trials before the International Military Tribunal at Nuremberg, U.S. military commissions in Germany tried 177 Nazi officials and sentenced 12 to death. See Spencer J. Crona & Neal A. Richardson, Justice for War Criminals of Invisible Armies: A New Legal and Military Approach to Terrorism, 21 Okla. City U. L. Rev. 349, 381 (1996) (“Crona & Richardson”). 252 227-329 VOL_25_PROOF.pdf 262 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists usage of war could sanction a military trial there [in Indiana, where courts were always open] for any offence whatever of a citizen in civil life, in nowise connected with the military service.”). In the Court’s view, the constitutional guarantees to trial by jury and indictment by grand jury in a capital case could not be denied by resort to a military commission. The Court held open the possibility that military commissions could be used to try citizens if martial law had properly been declared in the area, which could happen in times of invasion when the area in question was actually in the theater of military operations. As the Court put it, the “necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.” Id. at 127. We believe that the broad pronouncements in Milligan do not accurately reflect the requirements of the Constitution and that the case has properly been severely limited by the later decision in Quirin. As explained above, the Quirin Court set out a clear constitutional analysis under which it concluded that offenses triable by military commission under the laws of war were not within the commands of constitutional provisions guaranteeing certain procedures for criminal trials. As a result, the Court placed little or no significance on most of the factors cited in Milligan. The Court gave no weight to the fact that the civil courts were open where the German saboteurs had been captured. 317 U.S. at 23-24, 45. In addition, it rejected the idea that military jurisdiction would attach only if the defendants had entered the “theatre or zone of active military operations,” id. at 38, and even declined to resolve arguments about whether one of the German saboteurs was a citizen (he claimed he had been a naturalized citizen, and therefore invoked Milligan) because it concluded that even if the defendant were a citizen, Milligan would not preclude his trial by military commission. The Court instead ruled that the decision in Milligan must be understood “as having particular reference to the facts” of that case. Id. at 45. The particular facts that the Court found significant appear to have been that the saboteur in Quirin had engaged in acts that made him a belligerent, while Milligan, “not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war.” Id. The Quirin Court thus repeatedly emphasized that citizenship would not protect a person “from the consequences of a belligerency which is unlawful.” Id. at 37; see also id. (“Citizens who associate themselves with the military arm of the enemy government” are properly subject to trial by military commission). Citizens who engaged in belligerent acts, thus, could be tried by military commission. See also Colepaugh v. Looney, 235 F.2d 429, 432 (10th Cir. 1956) (“[T]he petitioner’s citizenship in the United States does not divest the Commission of jurisdiction over him, or confer upon him any constitutional rights not accorded any other belligerent under the laws of war.”). To explain the limitations on Milligan, two scenarios merit consideration here: (1) the use of military commissions to try U.S. citizens seized in the United States, and (2) the use of military commissions to try enemy aliens seized in the United States. 253 227-329 VOL_25_PROOF.pdf 263 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 1. U.S. Citizens Quirin clearly establishes that U.S. citizens who act as belligerents may be tried by military commission for violations of the law of war. Nonetheless, as explained below, we caution that there may be some risk that there will be ambiguity concerning the application of Quirin and the distinction the Quirin Court drew between the case before it and Milligan. As outlined above, the analysis employed in Quirin exempted offenses against the laws of war from the scope of the constitutional guarantees for trial by jury and grand jury indictment for crimes. The Milligan Court had relied on the same constitutional guarantees to hold that a military commission lacked jurisdiction and suggested that the facts that Milligan was a U.S. citizen and not in military service particularly compelled preserving his right to jury trial. See 71 U.S. at 119 (“[I]t is the birthright of every American citizen when charged with crime, to be tried and punished according to law.”); id. at 118 (emphasizing that Milligan was “not a resident of one of the rebellious states, or a prisoner of war, but a citizen of Indiana for twenty years past, and never in the military or naval service”). The logic of the rationale in Quirin, however, suggests that even a citizen could be tried by military commission if he were properly charged with any violation of the laws of war. It was the nature of the offense—an offense against the laws of war— that removed it from the scope of constitutional provisions for jury trial and grand jury indictment. Thus, the Court noted that it was not status as an alien or citizen that was critical for making the use of a military commission constitutionally permissible. Rather, “offenders were outside the constitutional guaranty of trial by jury, not because they were aliens but only because they had violated the law of war.” 317 U.S. at 44. In fact, Quirin made it explicit that U.S. citizenship alone does not suffice to invoke any limitation from Milligan on the jurisdiction of military commissions. The Court explained that “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents” and may be tried under the laws of war. Id. at 37-38. As a result, the Court declined even to resolve the claim that one of the eight German saboteurs was actually a U.S. citizen. See id. at 45. We believe that, properly understood, the constitutional analysis in Quirin demonstrates that any person properly charged with a violation of the laws of war, regardless of citizenship or membership in the armed forces (of this country or another power), may be tried by military commission. The critical point for constitutional analysis is that a person properly charged with an offense against the laws of war has no right to an indictment or trial by jury under Article III or the Fifth and Sixth Amendments. Citizenship and membership in the military are not determinative factors for constitutional purposes. A person can properly be chargeable of an offense against the laws of war (such as spying), after all, without 254 227-329 VOL_25_PROOF.pdf 264 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists being in the armed forces of a belligerent nation. The critical distinction is the nature of the offense. See United States v. Tiede, 86 F.R.D. 227, 254 (U.S. Ct. Berlin 1979) (“Quirin holds that whether an individual is entitled to a jury trial is determined by the nature of the crime with which he is charged.”). Offenses triable by the laws of war are not within the constitutional protections attached to criminal trials. As one district court recently held, “[u]nder Quirin, citizens and noncitizens alike—whether or not members of the military, or under its direction or control, may be subject to the jurisdiction of a military commission for violations of the law of war.” Mudd v. Caldera, 134 F. Supp. 2d 138, 145-46 (D.D.C. 2001); see also Colepaugh, 235 F.2d at 432 (“[T]he petitioner’s citizenship in the United States does not divest the Commission of jurisdiction over him, or confer upon him any constitutional rights not accorded any other belligerent under the laws of war.”). The Supreme Court, however, did not go so far as to hold in Quirin that its constitutional rationale undermined Milligan entirely. Instead, the Court declined to “define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals,” 317 U.S. at 45-46, and stated simply that the holding in Milligan should be construed as “having particular reference to the facts” in that case, id. at 45. The facts that were particularly relevant appear to have been that the saboteur in Quirin who claimed citizenship had engaged in acts that made him a belligerent. Milligan, in contrast, was not in military service, and the Court stressed that he was not an “enemy belligerent” and, “not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the laws of war.” Id. at 45; see also Milligan, 71 U.S. at 121-22 (emphasizing that Milligan was “a citizen in civil life, in nowise connected with the military service”). Thus, the line that the Court ultimately drew in Quirin to distinguish Milligan may be read to suggest that a citizen (not in the U.S. military) can be tried by military commission when he acts as a belligerent. See 317 U.S. at 37. That condition was most clearly met where citizens “associate themselves with the military arm of the enemy government.” Id. The distinction suggests that Milligan can be explained on the basis that the actions charged in Milligan did not amount to acts of belligerency. Even under this approach to Quirin, we conclude that in the context of the current conflict, any actions by U.S. citizens that amount to hostile acts against the United States or it citizens (and certainly participation in biological attacks, the attacks of September 11, or similar attacks) would make a person a “belligerent” subject to trial by military commission under Quirin. We caution, however, that applying this standard may raise some ambiguities. The Milligan decision holds out at least the possibility that some charges that may be articulated under the law of war (such as the charge of giving aid and comfort to the enemy used in Milligan) may not, in some circumstances, amount to acts of belligerency triable by military commission. Exactly which acts place a person in the category of an “enemy belligerent” under Quirin thus may be a subject of 255 227-329 VOL_25_PROOF.pdf 265 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 litigation. In addition, it might be argued that Quirin should be read as imposing a brighter-line test under which citizens are triable by military commission when they “associate themselves with the military arm of the enemy government.” 317 U.S. at 37. That standard, it could be claimed, is difficult to apply here because there are no organized armed forces of another belligerent nation facing the United States. For the reasons outlined above, we conclude that such an approach does not reflect the proper constitutional analysis and is not the proper reading of Quirin. Nonetheless, it raises a potential source of litigation risk. In short, although we conclude that a U.S. citizen found to have engaged in actions that are properly chargeable as offenses under the laws of war could constitutionally be tried by military commission in the United States, we caution that in some circumstances there could be litigation risks involved in establishing the exact application of the Supreme Court’s decisions. 2. Enemy Aliens Seized in the United States Even if Milligan might raise litigation risks for the use of military commissions to try citizens, it should not raise the same difficulties for trying aliens charged with violations of the law of war. The Milligan Court repeatedly stressed the importance of citizenship in describing Milligan’s rights, and even though the Supreme Court has extended many constitutional protections to aliens within the United States, the distinction between the rights of citizens and aliens, especially in times of war, retains vitality today. As the Supreme Court explained in Johnson v. Eisentrager, 339 U.S. 763, 771 (1950), whatever protections may be extended to aliens in time of peace, “[i]t is war that exposes the relative vulnerability of the alien’s status.” 9 Since the Alien Enemy Act of 1798, 1 Stat. 577 (codified as amended at 50 U.S.C. § 21), it has been established that in times of declared war, the President may seize enemy aliens and intern or deport them. This “Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security.” Eisentrager, 339 U.S. at 774. As the Court in Eisentrager explained, since an alien citizen of an enemy nation may constitutionally be deprived of liberty by Executive action solely on the basis of his citizenship during time of war, “no reason is apparent why an alien enemy charged with having committed a crime should have greater 9 It is well established that during war enemy aliens are not entitled to the same constitutional rights as citizens. See Harisiades v. Shaughnessy, 342 U.S. 580, 587 (1952) (“The government’s power to terminate its hospitality [to aliens] has been asserted and sustained by this Court since the question first arose. War, of course, is the most usual occasion for extensive resort to the power.”); Ex parte Colonna, 314 U.S. 510, 511 (1942) (noting “the principle recognized by Congress and by this Court that war suspends the right of the enemy plaintiffs to prosecute actions in our courts.”); Cummings v. Deutsche Bank und Discontogesellschaft, 300 U.S. 115, 120 (1937) (“By exertion of the war power, and untrammeled by the due process or just compensation clause, Congress enacted laws directing seizure, use, and disposition of property in this country belonging to subjects of the enemy.”). 256 227-329 VOL_25_PROOF.pdf 266 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists immunities from Executive action.” Id. at 784. As the Court concluded, the “Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.” Id. at 785. Although there is no “government at war” with the United States in the current scenario, we believe that the same constitutional analysis would surely apply to aliens who have entered the United States to carry on a terrorist war at the behest of any foreign power.10 There is some authority for the view that Milligan provides a broad standard guaranteeing the right to jury trial for both citizens and aliens for offenses that might be charged as crimes wherever the civil courts are open, as long as the offenses did not take place in the field of military operations or other peculiarly military territory. An opinion of the Attorney General issued at the end of World War I took this approach. In 1918, Attorney General Gregory relied on Milligan to advise President Wilson that a military commission would not properly have jurisdiction to try a Russian national seized at the Mexican border as he attempted to enter the United States to conduct acts of sabotage in the service of the German government. See Trial of Spies by Military Tribunals, 31 Op. Att’y Gen. 356, 357 (1918) (the “1918 Opinion”). The opinion reasoned that the guarantee of a jury trial in criminal matters in Article III, Section 2 and the guarantees of the Fifth and Sixth Amendments should be read to constrain the use of military commissions. It concluded that “military tribunals, whether courts-martial or military commissions, cannot constitutionally be granted jurisdiction to try persons charged with acts or offences committed outside of the field of military operations or territory under martial law or other peculiarly military territory.” Id. at 361. Attorney General Gregory proceeded from that premise to conclude that the offense of spying—made triable by military commission—must be narrowly construed to involve actually passing through an enemy’s lines of defenses in an area of military operations. See id.; see also id. at 357 (emphasizing that defendant “had not entered any camp, fortification or other military premises of the United States”).11 10 We do not intend to address exhaustively here the Supreme Court’s decisions extending constitutional protections to aliens within the United States. We note, however, that the Court has explained such protections by stating that they extend to aliens who are lawfully in the United States and who have “developed substantial connections with this country,” United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990), or as the Court recently put it, have “accepted some societal obligations,” id. at 273. It seems unlikely, to say the least, that terrorists here on long-term missions to plot hostile acts could satisfy both of these conditions. 11 Specifically, the Attorney General addressed Article 82 of the Articles of War, which stated that “Any person who in time of war shall be found lurking or acting as a spy in or about any of the fortifications, posts, quarters, or encampments of any of the armies of the United States, or elsewhere, shall be tried by a general court-martial or by a military commission, and shall, on conviction thereof, suffer death.” 31 Op. Att’y Gen. at 358. He concluded that, because of constitutional constraints, the term “or elsewhere” could not be read to permit the trial by military commission of a defendant who was not seized in peculiarly military territory. Id. at 361. 257 227-329 VOL_25_PROOF.pdf 267 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 We believe that the 1918 Opinion is best understood as an attempt to articulate the current state of the law under then-existing Supreme Court decisions and that it does not reflect the best constitutional analysis. See, e.g., id. at 359 (stating that Milligan is “authoritative” concerning “application of these Constitutional provisions to the question of the scope of military jurisdiction”). Indeed, the rationale in the 1918 Opinion has been thoroughly undermined by the Court’s later decision in Quirin. First, in Quirin, the Court explained at length that Article III, Section 2 and the Fifth and Sixth Amendments do not apply to trials by military commission for offenses against the laws of war and were not intended to expand the right to jury trial that existed at common law at the time of the Founding. See 317 U.S. at 39-43. Quirin thus rejected precisely the constitutional rationales upon which the Attorney General relied. Second, Attorney General Gregory relied on those constitutional rationales to expand Milligan to preclude the trial of aliens as well as citizens by military commission. He gave no particular rationale for extending those protections to aliens charged with hostile acts in time of war. In Quirin, moreover, the Court took the opposite route and concluded that, despite Milligan, even citizens were properly triable by military commission if they engaged in a belligerency unlawful under the laws of war. See id. at 37-38, 45. Finally, Quirin can be read as rejecting even Attorney General Gregory’s specific approach to requiring some particular nexus between the offense and “peculiarly military territory,” even for the particular offense of spying under the Articles of War. As noted above, to preserve the jurisdiction of civil courts, the 1918 Opinion reached the specific conclusion that spying required the defendant to have crossed into “the field of military operations” or “other peculiarly military territory.” 31 Op. Att’y Gen. at 361; see also id. at 357 (noting that the accused “had not, so far as appears, been in Europe during the war, so had not come through the fighting lines or field of military operations”). The saboteurs in Quirin relied expressly on that opinion to argue that they had not crossed through any military lines, had not been seized in military territory, and thus should not be subject to trial before a military commission. See Cyrus Bernstein, The Saboteur Trial: A Case History, 11 Geo. Wash. L. Rev. 131, 152-54 (1943) (summarizing briefs before Supreme Court).12 In addressing charges under the same Article of War, the Quirin Court, without citing the 1918 Opinion, rejected these claims: “Nor are petitioners any the less belligerents if, as they argue, they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations.” 317 U.S. at 38; see also id. at 36-37 (“[E]ntry upon our territory in time of war by enemy belligerents . . . for the 12 See also Eisentrager, 339 U.S. at 780 (noting arguments in Quirin: “None of the places where they were acting, arrested, tried or imprisoned were, it was contended, in a zone of active military operations, were not under martial law or any other military control, and no circumstances justified transferring them from civil to military jurisdiction”). 258 227-329 VOL_25_PROOF.pdf 268 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists purpose of destroying property used or useful in prosecuting the war, is a hostile and war-like act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents.”). The saboteurs in Quirin were seized in Chicago and New York (not “peculiarly military territory”) before they had completed any acts of sabotage, yet they were still chargeable as spies and subject to trial before a military commission.13 We believe that Quirin more accurately reflects the law. Milligan does not provide a substantial basis for precluding the trial of aliens by military commission for offenses against the laws of war even where the courts are open in the United States.14 In any event, the particular circumstances addressed in the 1918 Opinion will likely have little relevance to the current crisis. First, many terrorists that come into U.S. custody will likely be apprehended overseas and will plainly be triable by military commission for violations of the laws of war under Johnson v. Eisentrager, 339 U.S. 763 (1950). Constitutional concerns related to the use of military commissions within the United States thus will not arise. Second, the 1918 Opinion addressed the unusual factual scenario of a defendant seized at the border “the moment he touched foot upon United States territory,” 31 Op. Att’y Gen. at 357, who had not completed any acts of espionage or sabotage, and who had never even approached a military base. It was in addressing that fact pattern under the particular offense of spying under Article 82 of the Articles of War that the Attorney General concluded that there must be some connection to the field of operations or particularly military territory. One year later, Attorney General Palmer made clear that the particular facts were critical as he concluded, upon learning different facts in the same case, that a military court properly did have jurisdiction to try the same defendant. See Trial of Spy by Court Martial, 40 Op. Att’y Gen. 561 (1919). He explained that, where the defendant had “crossed into our territory” and was arrested “about a mile distant from encampments where were stationed officers and men engaged in protecting the border against threatened invasion from the Mexican side,” id., a military court properly had jurisdiction.15 In the current situation, a scenario similar to that addressed in the 1918 Opinion likely will not arise. Aliens apprehended in the United States would likely be charged in connection with completed hostile acts of unlawful belligerency or 13 In setting out the background of the case, the Court did note in a footnote that both of the beaches on which the saboteurs landed were within areas designated the “Eastern Sea Frontier” and the “Gulf Sea Frontier” by the military, see 317 U.S. at 20 n.1, but it did not rely on these facts in its decision. 14 We also note that the 1918 opinion might have been influenced by the fact that it was issued on November 25, 1918, two weeks after the armistice with Germany had been signed. 15 Because Attorney General Palmer based his decision entirely on the changed facts (which brought the defendant within particularly military territory) and explicitly stated that “[t]his expression of my views should not be treated as overruling the opinion of my predecessor,” we believe it is still necessary to address the legal analysis of the 1918 Opinion, as we have above. 259 227-329 VOL_25_PROOF.pdf 269 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 conspiracy related to those acts. There would be no credible argument that the definitions of the offenses under the laws of war should be construed narrowly so as not to include deliberate acts of mass murder that took approximately 3,000 lives. * III. The President May Conclude That the Laws of Armed Conflict Apply to the Terrorist Attacks As explained above, 10 U.S.C. § 821 sanctions the full uses of the military commission established by custom and Executive practice in the United States military. That practice, as noted above, has permitted military commissions to try all offenses against the laws of war. See, e.g., Quirin, 317 U.S. at 30 (“Congress has incorporated by reference, as within the jurisdiction of military commissions, all offenses which are defined as such by the law of war.”) (emphasis added); Yamashita, 327 U.S. at 20 (“Congress gave sanction . . . to any use of the military commission contemplated by the common law of war.”). The critical question for determining whether military commissions can properly be used here, therefore, is whether the terrorist attacks have created a situation to which the laws of war apply.16 That is, are the terrorist acts subject to the laws of war at all, or are they solely criminal matters to be treated under the municipal criminal law of the United States or a particular State? As outlined below, it would be difficult—or impossible—to articulate any precise multi-pronged legal “test” for determining whether a particular attack or set of circumstances constitutes “war” justifying application of the laws of war— or to use the modern terminology, whether it is an “armed conflict” justifying use of the “laws of armed conflict.” As the Supreme Court recognized long ago, determining whether a “war” exists depends largely on pragmatic considerations. As the Court put it in evaluating whether President Lincoln could properly invoke the laws of war by imposing a blockade on the southern states at the beginning of the Civil War, a conflict “becomes [a war] by its accidents—the number, power, and organization of the persons who originate and carry it on.” The Prize Cases, 67 U.S. (2 Black) 635, 666 (1862). Precisely because it is a question that rests on pragmatic judgments that critically affect the national defense and vital matters of foreign policy, it is a determination that is properly left to the political branches, and particularly to the President. We explain in Part III.A below that the courts should defer to a presidential determination that the laws of armed conflict apply. * Editor’s Note: When this opinion was issued, this sentence referenced the taking of “over 4,500 lives,” which was based on the information known at that time. 16 Because we conclude, as explained below, that the current conflict warrants application of the laws of war and thus justifies the use of military commissions under this standard, we need not and do not address whether the President’s inherent powers as Commander in Chief would extend further to permit the use of military commissions in other situations. 260 227-329 VOL_25_PROOF.pdf 270 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists In Part III.B, we outline more specific principles that can be derived from precedents to demonstrate that the present attacks have created a set of circumstances that properly merit invocation of the laws of war.17 The scale of these attacks, the number of deaths they have caused, and the massive military response they have demanded makes it virtually self-evident that the present situation can be treated as an armed conflict subject to the laws of armed conflict. A. Determining Whether War Exists Is a Question for the Political Branches Part of the reason it is difficult to articulate any broadly applicable “test” for determining whether a war exists is that the courts have quite properly concluded that that question (and thus the triggering of the laws of war) is one for the political branches. Early in the Nation’s history the Supreme Court recognized that Congress has authority to acknowledge a state of war, and that its decision to do so, whether formally and fully or partially and by degrees, is not subject to judicial question. See Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801) (“[C]ongress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed.”); The Three Friends, 166 U.S. 1, 63 (1887) (“[I]t belongs to the political department to determine when belligerency shall be recognized, and its action must be accepted according to the terms and 17 We note that the Supreme Court’s decision in Quirin also demonstrates that, at least if those charged before a military commission are being held within the territorial United States, they would be able to file a petition for habeas corpus to have an Article III court test whether their cases fell within the jurisdiction of a military commission—that is, whether the offenses charged properly “set[] forth a violation of the law of war.” Quirin, 317 U.S. at 46; see also id. at 29 (suggesting that some acts, even if considered violations of the laws of war in some countries or by some authorities, “would not be triable by military tribunal here . . . because they are not recognized by our courts as violations of the law of war”) (emphasis added); Yamashita, 327 U.S. at 9 (“[T]he Executive branch of the Government could not, unless there was suspension of the writ, withdraw from the courts the duty and power to make such inquiry into the authority of the commission as may be made by habeas corpus.”); Colepaugh, 235 F.2d at 431 (holding that on habeas review court may inquire into “applicability of the law of war to a particular case”). But cf. Johnson v. Eisentrager, 339 U.S. 763, 787-90 (1950) (holding that the writ of habeas corpus is not available to aliens held outside United States territory). It is unclear to what extent a court would inquire into the exact question here—namely, whether the current situation is a “war” permitting application of the laws of war. In Quirin, the existence of a war was definitively established by a congressional declaration of war, and the Court inquired solely into whether the specification of the charges against the saboteurs sufficiently “alleges violation of the law of war.” 317 U.S. at 36. In Yamashita, the Court addressed a question closer to the one here as it assessed a claim that military commissions could not be used after the cessation of hostilities—a claim it rejected. See 327 U.S. at 11-13. Although, as explained in text, determining whether the laws of war apply is properly a political question, it is possible that courts will not consider themselves bound by every determination of a political branch of the government that the laws of war apply. Thus, setting out the rationales that justify treating the current situation as “war” may be useful for this purpose as well. 261 227-329 VOL_25_PROOF.pdf 271 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 intention expressed.”); see also, e.g., 3 Cumulative Digest of United States Practice in International Law 1981-1988, at 3444 (1995) (“U.S. Practice”) (“The Courts have also treated the fundamental issue of whether an armed conflict is taking place for purposes of international or domestic law as a question to be decided by the political branches.”) (collecting authorities); Verano v. De Angelis Coal Co., 41 F. Supp. 954, 954 (M.D. Pa. 1941) (“‘It is the well-settled law that the existence of a condition of war must be determined by the political department of the government; that the courts take judicial notice of such determination and are bound thereby.’”) (quoting Hamilton v. McClaughry, 136 F. 445, 449 (C.C.D. Kan. 1905)); The Ambrose Light, 25 F. 408, 412 (S.D.N.Y. 1885) (where question of recognizing belligerent rights arises, courts “must follow the political and executive departments, and recognize only what those departments recognize”); United States v. One Hundred and Twenty-Nine Packages, 27 F. Cas. 284, 289 (E.D. Mo. 1862) (“[T]he status of the country as to peace or war, is legally determined by the political and not the judicial department. When the decision is made the courts are concluded thereby, and bound to apply the legal rules which belong to that condition.”). We conclude that, even without any action by Congress to acknowledge a state of war, the President, in his constitutional role as Commander in Chief, and through his broad authority in the realm of foreign affairs, see, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936), also has full authority to determine when the Nation has been thrust into a conflict that must be recognized as a war and treated under the laws of war. In The Prize Cases, the Supreme Court explained that it was up to the President to determine that a state of war existed that warranted according to the southern States the “character of belligerents.” 67 U.S. at 670. The judiciary, the Court noted, would be bound by his determinations in evaluating whether the laws of war applied to the blockade the President had instituted: Whether the President in fulfilling his duties, as Commander-inchief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. . . . The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed . . . . Id.; see also The Protector, 79 U.S. (12 Wall.) 700, 701-02 (1871) (relying on presidential proclamations to determine start and end dates for the Civil War); Salois v. United States, 33 Ct. Cl. 326, 333 (1898) (stating that if the government 262 227-329 VOL_25_PROOF.pdf 272 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists had treated a band of Indians as at war, “the courts undoubtedly would be concluded by the executive action and be obliged to hold that the defendants were not in amity”). By making the President Commander in Chief of the armed forces, the Constitution must be understood to grant him the full authorities required for him to effectively defend the Nation in the event of an armed attack. Necessarily included among those powers must be the ability to determine whether persons responsible for an attack should be subject to punishment under the laws of war. We outlined above our conclusion that the President’s powers as Commander in Chief must include the authority to convene military commissions to enforce the laws of war. For largely the same reasons, the Commander in Chief’s power should include authority to determine when the armed forces are engaged in a conflict that merits application of the laws of war. Use of the laws of war, after all, can be a key component in a strategy for conducting and regulating a military campaign. The ability to apply the laws of war means the ability to punish transgressions by an enemy against those laws, and thereby to compel an enemy to abide by certain standards of conduct. There can be no basis for withdrawing from the Commander in Chief the authority to determine when the Nation has been subjected to such an attack as warrants the use of the laws of war to deal with the enemy.18 B. The Terrorist Attacks Have Created a Situation That Can Properly Be Considered War Although the determination whether the current situation merits application of the laws of war is properly committed to the discretion of the President as Commander in Chief, there are some standards that the President could take into account. Under principles that can be gleaned both from American precedents and sources addressing the international laws of armed conflict, these factors indicate that the laws of armed conflict are properly applicable here. As the Supreme Court put it in evaluating whether President Lincoln could properly invoke the laws of war by imposing a blockade on the southern states at the beginning of the Civil War, a conflict “becomes [a war] by its accidents—the number, power, and organization of the persons who originate and carry it on.” The Prize Cases, 67 U.S. at 666. Where an organized force is carrying on a campaign of violence that 18 It is a familiar principle that decisions made by the President in undertaking the defense of the Nation in his role as Commander in Chief are committed to his sole discretion and are not subject to review. See, e.g., Martin v. Mott, 25 U.S. 19, 30 (1827) (question whether circumstances require calling out the militia is committed to the discretion of the President: “[T]he authority to decide whether the exigency has arisen belongs exclusively to the President, and . . . his decision is conclusive upon all other persons.”); see also Stewart v. Kahn, 78 U.S. (1 Wall.) 493, 506 (1870) (“The measures to be taken in carrying on war . . . are not defined [in the Constitution]. The decision of all such questions rests wholly in the discretion of those to whom the substantial powers involved are confided by the Constitution.”). 263 227-329 VOL_25_PROOF.pdf 273 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 reaches a sufficient level of intensity, it may be deemed an “armed conflict” by the President, thereby justifying application of the laws of armed conflict, including trials for the violation of those laws.19 As explained below, the terrorist attacks meet that test. 1. American Precedents The political branches of the government, in whom the Constitution vests all of the war power, have long recognized that formal requirements are not the touchstone for application of the laws of war.20 Actions based on that understanding, moreover, have repeatedly been upheld by the Supreme Court. Thus, for example, in the Quasi War with France, Congress exercised its power to authorize the seizure of French vessels, effectively using the rights of war, without declaring war. The Supreme Court recognized that Congress could take precisely such steps to use principles of the laws of war without any formal declaration. See, e.g., Bas v. Tingy, 4 U.S. (4 Dall.) 37, 43 (1800) (“Congress is empowered to declare a general war, or Congress may wage a limited war; limited in place, in objects, and in time.”);21 see also Existence of War with the Seminoles, 3 Op. Att’y Gen. 307 (1838) (explaining that war may exist “although no formal declaration of war has been made” and can even exist “without the sanction of Congress”).22 In addition, it is well established in Executive practice that war can exist (and the laws of war can be applied) even if the hostile parties are not two independent 19 Acknowledging that the laws of armed conflict may be applied to the present conflict does not mean in any way acknowledging the terrorists as legitimate combatants with any rights under the laws of armed conflict. To the contrary, based on their actions to date, the terrorists are all unlawful combatants stripped of any protection under the laws of armed conflict and are subject to trial for their violation. 20 Because most U.S. precedents addressing application of the laws of armed conflict date from World War II or before, they use the terminology of “law of war.” For consistency with the source material, we follow that terminology in this portion of the discussion. 21 See also U.S. Army Field Manual, The Law of Land Warfare, FM 27-10, ch. 1, ¶ 9 (July 1956, as updated) (“[A] declaration of war is not an essential condition to the application of this body of law.”). 22 Similarly, courts have recognized that the conflict in Vietnam was a war for purposes of applying the laws of war, even though Congress never declared war. See, e.g., United States v. Anderson, 38 C.M.R. 386 (C.M.A. 1968). Accordingly, violations of the laws of war during Vietnam could be prosecuted as war crimes by military tribunals. In court-martial proceedings arising out of the incidents at My Lai, the Army Court of Military Review stated that “all charges could have been laid as war crimes.” United States v. Calley, 46 C.M.R. 1131, 1138 (A.C.M.R. 1973); see also 3 U.S. Practice at 3451. The court explained why the defendant was charged under the Uniform Code of Military Justice by citing paragraph 507(b) of chapter 8 of the U.S. Army Field Manual, The Law of Land Warfare, FM 27-10, which states that “the United States normally punishes war crimes as such only if they are committed by enemy nationals or by persons serving the interests of the enemy State. Violations of the laws of war committed by persons subject to the military law of the United States will usually constitute violations of the Uniform Code of Military Justice and, if so, will be prosecuted under that Code.” Calley, 46 C.M.R. at 1138. 264 227-329 VOL_25_PROOF.pdf 274 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists sovereigns. Thus, at the outbreak of the Civil War, President Lincoln ordered a blockade of the southern states—an action that effectively invoked the rules of war—without any declaration of war and without any sovereign state as an enemy. In The Prize Cases, the Supreme Court addressed this action in the context of determining whether certain ships seized for attempting to run the blockade were lawfully captured as prizes. They would be lawful prizes only if the laws of war applied. In concluding that the prizes were lawful, the Court explained: “The parties belligerent in a public war are independent nations. But it is not necessary to constitute war, that both parties should be acknowledged as independent nations or sovereign States.” 67 U.S. at 666;23 accord United States v. Pacific R.R., 120 U.S. 227, 233 (1887).24 The mere fact that the terrorists are non-state actors, therefore, poses no bar to applying the laws of war here. American precedents also furnish a factual situation that is more closely analogous to the current attacks to the extent that they involve attacks by non-state actors that do not take place in the context of a rebellion or civil war. The analogy comes from the irregular warfare carried on in the Indian Wars on the western frontier during the nineteenth century. Indian “nations” were not independent, sovereign nations in the sense of classical international law, nor were Indian tribes rebels attempting to establish states. Cf. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831) (Marshall, C.J.) (describing Indians tribes as “domestic dependent nations”). Nevertheless, the Supreme Court has explained that the conflicts between Indians and the United States in various circumstances were properly understood as “war.” Thus, in Montoya v. United States, 180 U.S. 261 (1901), the Court (for purposes of a compensation statute passed by Congress) examined whether certain attacks were carried out by Indians from tribes “in amity” with the United States, which the Court approached by determining whether the Indians were at “war.” The Court explained that the critical factor was whether the Indians’ attacks were undertaken for private gain or as a general attack upon the United States: “If their hostile acts are directed against the Government or against all settlers with whom they come in contact, it is evidence of an act of war.” Id. at 266; see also id. (critical factor is whether “their depredations are part 23 See also Pan American World Airways, Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989, 1013 (2d Cir. 1974) (“[W]ar can exist between quasi-sovereign entities.”). 24 Similarly, in Hamilton v. McClaughry, 136 F. 445 (D. Kan. 1905), the court concluded that the Boxer Rebellion in China was a “war” sufficient to confer jurisdiction on a general court-martial to try a soldier for an offense “during time of war.” Even though the Boxers were not a government and could not be recognized as a sovereign nation, the court found that “there prevailed in China a condition of war” sufficient to justify a court-martial in applying punishments that apply during time of war. Id. at 451; see also Arce v. State, 202 S.W. 951, 951 (Tex. Crim. App. 1918) (holding that a “war” existed when a “force organized at Monterey [in Mexico] by the direction and under the authority of the Carranza de facto government”—an insurgent group—attacked U.S. troops sent into Mexico, and thus that prisoners seized in the engagement should not be tried in Texas courts for murder). 265 227-329 VOL_25_PROOF.pdf 275 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 of a hostile demonstration against the Government or settlers in general, or are for the purpose of individual plunder”). Similarly, after the Modoc Indian War of 1873, the Attorney General opined that prisoners taken during the war who were accused of killing certain officers who had gone to parley under a flag of truce were subject to the laws of war and could be tried by a military commission. See The Modoc Indian Prisoners, 14 Op. Att’y Gen. 249 (1873). The Attorney General acknowledged that “[i]t is difficult to define exactly the relations of the Indian tribes to the United States,” but concluded that “as they frequently carry on organized and protracted wars, they may properly, as it seems to me, be held subject to those rules of warfare which make a negotiation for peace after hostilities possible, and which make perfidy like that in question punishable by military authority.” Id. at 253. Several Indian prisoners were tried by military commission and executed. The Attorney General reached a similar conclusion in 1871 in addressing the conduct of persons who had sold ammunition and rifles to hostile Indians. By statute, trading with Indians without a license was already prohibited. The Attorney General concluded, however, that trading with Indians “in open and notorious hostility to the United States at the time” constituted an offense under the Articles of War and could be tried by military commission. Unlawful Traffic with Indians, 13 Op. Att’y Gen. 470, 471 (1871). He explained that he was assuming “such a state of hostility on the part of the Indians as amounts to war,” and acknowledged that “[t]his state, in our peculiar relations with Indian tribes, is perhaps not susceptible of an exact definition.” Id. at 472. He concluded: It is not necessary to the existence of war that hostilities should have been formally proclaimed. When any Indian tribes are carrying on a system of attacks upon the property or persons, or both, of the settlers upon our frontiers, or of the travelers across our Territories, and the troops of the United States are engaged in repelling such attacks, this is war in such a sense as will justify the enforcement of the articles of war against persons who are engaged in relieving the enemy with ammunition, etc. Id. It is true that many situations involving application of the laws of war in the past have involved conflicts between sovereigns or quasi-sovereign entities (including, for example, rebel movements attempting to establish governments). But that fact should not be understood as in any way precluding application of the laws of armed conflict to widespread terrorist violence. In the past, usually only a sovereign or quasi-sovereign entity attempting to establish itself as a government over a substantial territory could have the resources to mount and sustain a series of attacks of sufficient intensity to raise the question of “war” or “armed conflict.” 266 227-329 VOL_25_PROOF.pdf 276 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists The terrorist network now facing the United States has found other means to finance its campaign while operating from the territory of several different nations at once. That change, however, cannot be considered to somehow exempt terrorist networks from the standards demanded by the laws of armed conflict and the punishments that would apply when the terrorists undertake violent attacks in violation of those laws. Simply by operating outside the confines of the traditional concepts of nation-states, terrorists cannot shield themselves from the prohibitions universally commanded by the laws of armed conflict and trial for violations of those laws. The examples from the Indian Wars above here provide an apt analogy. Indian tribes did not fit into the western European understanding of nation states—a difficulty that Attorneys General acknowledged. But that posed no bar to applying the laws of war when the United States was engaged in armed conflict with them. Moreover, there is nothing in the logic of the laws of armed conflict that in any way restricts them from applying to a campaign of hostilities carried on by a nonstate actor with a trans-national reach. To the contrary, the logic behind the laws suggests that they apply here. Generally speaking, the laws are intended to confine within certain limits the brutality of armed conflict, which might otherwise go wholly unchecked. Cf. The Prize Cases, 67 U.S. at 667 (the laws of war “all tend to mitigate the cruelties and misery produced by the scourge of war”). The ability to punish violations of the laws of armed conflict is critical for deterring all foreign entities from undertaking any acts that violate those laws. If terrorists could somehow be exempt from being tried for violations of the laws of war simply because they do not need to rely upon a government—or a quasi-sovereign structure controlling territory—the purposes of the laws of war would be defeated.25 Under the precedents outlined above, the terrorist acts are plainly sufficient to warrant application of the laws of war. The attacks fit exactly the terms used in the 25 It also bears noting that the terrorists do share one significant characteristic with the case of rebels or insurgents. Rebels typically are attempting to establish a government to change the political order or enforce their political will on an existing government. Some definitions of war, indeed, describe it as the effort to impose political will by force. See, e.g., Carl von Clausewitz, On War 101 (A. Rapoport ed., Pelican Classics 1968) (1832) (“War therefore is an act of violence intended to compel our opponents to fulfil our will.”); id. at 119 (“War is . . . a continuation of political commerce, a carrying out of the same by other means.”). The terrorist attacks share this characteristic: they are designed to enforce a political will by arms. The attacks were directed against the government and people of the United States in an effort to force the United States to alter its foreign policies by the application of armed force. That is a classic description of the objectives of war. Thus, even though Usama bin Laden does not have any territory that he controls and cannot be said to operate as a quasi-sovereign entity, he was in effect acting in the same manner as a foreign power in attempting to enforce his political will on the United States by force of arms. While that aspect of the terrorist campaign is certainly not necessary for the attacks to be deemed an armed conflict, it does demonstrate that the current terrorist attacks share much in common with more familiar examples of armed hostilities subject to the laws of armed conflict. 267 227-329 VOL_25_PROOF.pdf 277 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 cases above (which, as explained below, also closely parallel standards applied in international sources addressing the laws of armed conflict). The terrorists have engaged in a “system of attacks upon” the United States, that are part of a “hostile demonstration against the government [and people] in general.” 13 Op. Att’y Gen. at 472. Usama bin Laden has made it abundantly clear that he has called Muslims worldwide to a “jihad against the U.S. government, because the U.S. government is unjust, criminal and tyrannical.” CNN Interview with Osama bin Laden, Osama Bin Laden v. the U.S.: Edicts and Statements (Mar. 1997), available at http://www. pbs.org/wgbh/pages/frontline/shows/binladen/who/edicts.html (last visited July 26, 2012); see also World Islamic Front Statement, Jihad Against Jews and Crusaders (Feb. 23, 1998), available at http://www.fas.org/irp/world/para/docs/980223-fatwa. htm (last visited July 26, 2012) (“The ruling to kill the Americans and their allies— civilians and military—is an individual duty for every Muslim who can do it in any country in which it is possible to do it . . . . We—with Allah’s help—call on every Muslim who believes in Allah and wishes to be rewarded to comply with Allah’s order to kill the Americans and plunder their money wherever and whenever they find it.”). In prosecuting this self-proclaimed war, the terrorists carried out a widespread and coordinated attack against military and civilian targets on September 11 that resulted in the loss of approximately 3,000 lives. That death toll surpasses that at Pearl Harbor, and rivals the toll at the battle of Antietam in 1862, one of the bloodiest engagements in the Civil War. The attacks, moreover, did not involve a single, isolated event. Rather, even if one looks solely to the events of September 11, they involved the coordinated hijacking in different parts of the country of four separate aircraft that were then used as guided weapons. And if one looks beyond September 11, the attacks appear to be the culmination of a lengthy and sustained campaign that also includes the bombings of the World Trade Center in 1993, the Khobar Towers in Saudi Arabia in 1996, the U.S. embassies in Kenya and Tanzania in 1998, and the U.S.S. Cole in 2000. Especially when viewed as part of that continuing series of attacks, the most recent events plainly rise to the level of a systematic campaign of hostilities that justifies application of the laws of armed conflict.26 26 Indeed, compared to previous incidents found by the Executive Branch to trigger the application of the laws of armed conflict, Al Qaeda’s terrorism campaign falls well within United States practice. On December 3, 1983, two unarmed U.S. navy planes flying regular, routine reconnaissance flights were fired upon by hundreds of Syrian anti-aircraft guns and surface-to-air missiles. The United States responded to the attack the following day with airstrikes on the Syrian positions from which the gunfire and missiles had come. Two U.S. planes were shot down, and one officer was taken prisoner. The United States declared that the officer was entitled to prisoner of war status. According to a State Department press guidance, under the Geneva Conventions of 1949, “‘[a]rmed conflict’ includes any situation in which there is hostile action between the armed forces of two parties, regardless of the duration, intensity or scope of the fighting and irrespective of whether a state of war exists between the two parties.” 3 U.S. Practice at 3456-57. 268 227-329 VOL_25_PROOF.pdf 278 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists In addition, the “troops of the United States are engaged in repelling such attacks” on a massive scale. 13 Op. Att’y Gen. at 472. Days after the attacks, Congress swiftly exercised its war powers to pass a joint resolution authorizing the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”27 The President has not only described the current situation as a “war,” he has also directed partial mobilization of the Ready Reserve (thus putting at his disposal one million members of the Ready Reserve and alerting 50,000 reservists so far), he has dispatched three carrier battle groups and dozens of additional aircraft to the region of Afghanistan, and he has launched air attacks against military targets in Afghanistan. In addition, fighter jets continue to patrol the skies over most major American cities. The level of the military response determined upon by the political branches of the government in itself, in our view, justifies the conclusion that the laws of war can be invoked. Finally, a further factor is virtually conclusive in itself in establishing that the attacks rise to the level of an armed conflict. In response to the attacks, NATO has already taken the unprecedented step of invoking Article 5 of the North Atlantic Treaty, which provides that an “armed attack against one or more of [the parties] shall be considered an attack against them all.” North Atlantic Treaty art. 5, Apr. 4, 1949, 63 Stat. 2241, 2244, 34 U.N.T.S. 243, 246; see also Statement of NATO Secretary General Lord Robertson (Oct. 2, 2001), available at http://www.nato.int/ docu/speech/2001/s011002a.htm (last visited May 17, 2012) (“it has now been determined that the attack against the United States on 11 September was directed from abroad and shall therefore be regarded as an action covered by Article 5 of the Washington Treaty”). Thus, under the mechanism provided in a treaty (which is part of the “supreme Law of the Land” under Article 6 of the Constitution, U.S. Const. art. VI, § 2), it has already been determined by a unanimous vote (including the vote of the United States) that the terrorist acts are an “armed attack” warranting an international response. Indeed, at least one NATO member, Great Britain, has already participated with the United States in launching attacks in response to the terrorist acts, and others have pledged their participation for future military actions. Similarly, both the Organization of American States (“OAS”) and Australia and New Zealand have determined that parallel provisions in their mutual defense treaties applying to “armed attacks” have also been activated.28 27 Pub. L. No. 107-40, 115 Stat. 224 (Sept. 14, 2001). Such a resolution was not necessary for the President to order a military response under his authority as Commander in Chief, but we note that the resolution was clearly an exercise of Congress’s war power. The resolution itself acknowledges in the preamble that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” 115 Stat. at 224. 28 See Security Treaty Between Australia, New Zealand and the United States of America art. 2, Sept. 1, 1951, 3 U.S.T. 3420, 3422, 131 U.N.T.S. 83, 86 (“ANZUS Pact”); White House, Fact Sheet, 269 227-329 VOL_25_PROOF.pdf 279 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 These actions already demonstrate recognition by other nations that the events of September 11 constituted “armed attacks” necessitating a military response. In short, the terrorist acts were not isolated acts of criminal violence; rather, they were an attack against the government and people of the United States. We believe that “this is war in such a sense as will justify the enforcement of the articles of war.” 13 Op. Att’y Gen. at 472. 2. International Law Standards The precedents under American law outlined above are sufficient to establish conclusively that at least as of September 11, terrorist attacks on the United States had created a situation that would justify a conclusion that the laws of war properly apply. We realize that if a decision is made to use military commissions, it will also be important to justify American actions to our allies and others internationally. We therefore explain below that under sources of international law there are also ample authorities that could be cited to support a decision to apply the laws of war to the current conflict. There is, of course, no treaty to which the United States is a party that applies by its terms to the current conflict with a terrorist organization and that would subject terrorists to the laws of war—or as it is now more commonly referred to in international law, the “laws of armed conflict.” Our discussion, therefore, turns to some extent on principles reflective of “customary international law” concerning the breadth of the laws of armed conflict. Citation of such principles, however, should not be misunderstood to suggest that these principles are “law” in the sense that they bind the President as Commander in Chief. Rather, they are cited to demonstrate that, in the field of international law, certain principles have received sufficient recognition that they could be credibly cited as reflecting customary practice among nations. The President may choose to enforce these standards as a matter of policy (and may determine as a matter of policy to have the Armed Operation Enduring Freedom Overview: Campaign Against Terrorism Results (Oct. 1, 2001), available at http://2001-2009.state.gov/s/ct/rls/fs/2001/5194.htm (last visited Aug. 4, 2012) (noting that “Australia offered combat military forces and invoked Article IV of the ANZUS Treaty, declaring September 11 an attack on Australia”); Inter-American Treaty of Reciprocal Assistance art. 3(1), Sept. 2, 1947, 62 Stat. 1681, 1700, 21 U.N.T.S. 77, 95 (“Rio Treaty”) (“an armed attack by any State against an American State shall be considered as an attack against all the American States”); Meeting of Consultation of Ministers of Foreign Affairs, Organization of American States, Terrorist Threat to the Americas (Sept. 21, 2001), available at http://www.oas.org/OASpage/crisis/RC.24e.htm (last visited May 22, 2012) (resolving “[t]hat these terrorist attacks against the United States of America are attacks against all American states and that in accordance with all the relevant provisions of the Inter-American Treaty of Reciprocal Assistance (Rio Treaty) and the principle of continental solidarity, all States Parties to the Rio Treaty shall provide effective reciprocal assistance to address such attacks and the threat of any similar attacks against any American state, and to maintain the peace and security of the continent”). 270 227-329 VOL_25_PROOF.pdf 280 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists Forces of the United States adhere to similar standards), but they are not “law” that limits the President as Commander in Chief. Many of the same standards distilled from the American precedents outlined above are also reflected in international law sources addressing application of the laws of armed conflict. It bears emphasis at the outset that the term “law of war” used in 10 U.S.C. § 821 refers to the same body of international law now usually referred to as the “laws of armed conflict.” See, e.g., Quirin, 317 U.S. at 30-31 (explaining that the “law of war” incorporates the “common law of war” and looking to “universal agreement and practice” and “practice here and abroad” in determining scope of the laws of war, including army manuals from Germany and Britain); cf. International Criminal Tribunal for the Former Yugoslavia: Decision in Prosecutor v. Dusko Tadic, Oct. 2, 1995, 35 I.L.M. 32, 60 (1996) (“Prosecutor v. Tadic”) (noting changes in terminology). That refinement in terminology is not without significance, because it is designed to reflect more accurately the substantive reach of the international law restraints (and potential punishments) placed upon the conduct of armed conflicts. The laws of armed conflict are not restricted to situations of declared war—or even undeclared war—between nation states. Certain standards apply to any situation involving armed hostilities that have reached a sufficient level of intensity to be considered “armed conflict.” Understanding the broader scope of this body of law is particularly important, because the fact that the terrorist attacks do not fit neatly into a classical concept of “war” may (improperly) pose an initial stumbling block hindering understanding of how the laws of armed conflict properly apply here. To begin with, the major conventions that set out international law standards governing international conflicts between states are not limited by the formal concept of “war.” Rather, each of the four Geneva Conventions of 1949, for example, applies “to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” See, e.g., Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 2, Aug. 12, 1949, 6 U.S.T. 3516, 3518, 75 U.N.T.S. 287, 288 (emphasis added); see also 3 U.S. Practice at 3453 (“[T]here need be neither a formal declaration of war nor a recognized state of war in order for the 1949 Geneva Conventions to come into effect. The occurrence of de facto hostilities is sufficient.”). Thus, even in the context of hostilities between nations, it is the existence of a set of facts— hostilities that amount to armed conflict—that triggers application of the provisions of the Geneva Conventions. It is true that the requirements in the Geneva Conventions apply by their terms solely to conflicts between states. Thus, those conventions are not triggered by a conflict solely with terrorists. But that does not mean that there are not principles of the laws of armed conflict that apply in other scenarios. The complete set of restrictions in those conventions is not the only source of the laws of armed 271 227-329 VOL_25_PROOF.pdf 281 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 conflict that restrict the conduct of armed hostilities under international law.29 For example, common Article 3 of the Geneva Conventions was expressly designed to provide a form of safety net to establish minimal standards of humanitarian conduct that would govern in certain conflicts not covered by the Conventions. Thus, while the Geneva Conventions were designed to address international armed conflict, common Article 3 sets out some basic standards of humanitarian conduct that the parties are bound to apply “[i]n the case of armed conflict not of an international character” occurring within the territory of a Party. See e.g., Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 3, 6 U.S.T. at 3518.30 Similarly, the 1996 Amended Protocol II to the 1980 U.N. Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons (to which the United States is a party) further elaborates some aspects of the laws of armed conflict that apply in such “internal” armed conflicts. S. Treaty Doc. No. 105-1, at 39 (1997). These provisions make it plain that the laws of armed conflict may apply to hostilities conducted by a non-state actor. They also illustrate that the trigger for applying these requirements is the crossing of a certain threshold of violence. The 1996 Amended Protocol II, for example, explains that it does not apply to “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature,” because these are not “armed conflicts.” 1996 Protocol II, art. 1(2), id.31 Where there is some coordinated or organized campaign of violent acts that crosses that threshold, however, the factual situation warrants the application of the laws of armed conflict. The standards of common Article 3, moreover, are reflective of a minimal standard of conduct that some view as required in all armed conflicts. Cf. Hilaire McCoubrey, International Humanitarian Law: The Regulation of Armed Conflicts 22 (1990) (“McCoubrey”) (“[I]t must be borne in mind that much of Conventional international humanitarian law forms a part of customary law . . . .”). The United 29 We assume for purposes of this discussion that it has not been established that the terrorist network carrying out the attacks was acting effectively as an agent for another nation. If the terrorists were acting as agents for another state, or were sponsored and supported by a state, there could be no question that the attacks constituted an international conflict to which the laws of armed conflict apply. 30 Common Article 3 extends only certain prohibitions under international law to covered internal conflicts. It does not extend prisoner of war status or immunity from domestic prosecution to rebels. See 3 U.S. Practice at 3448 (“Common Article 3 did not grant rebels the benefits of prisoner-of-war status and thus immunity from prosecution for combatant acts.”) (collecting authorities); id. at 3464 (“Article III does not provide any immunity from prosecution to individuals for engaging in combatant acts.”). 31 This language is identical to that contained in the 1977 Protocol II to the Geneva Conventions. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts art. 1(2), June 8, 1977, 1125 U.N.T.S. 609, 611. The United States has signed Protocol II, but is not a party to it. President Reagan forwarded the Protocol to the Senate for advice and consent to ratification on January 29, 1987, but it has not been ratified. See 3 U.S. Practice at 3428-34. 272 227-329 VOL_25_PROOF.pdf 282 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists States recognized that some such minimal principles could be enforced against enemies as long ago as 1945 when the International Military Tribunal at Nuremberg applied standards of the Geneva and Hague Conventions to German conduct on the Eastern Front even though the Soviet Union had expressly denounced the Geneva Conventions before the war. See id. at 22-23.32 Since then, the United States has supported statements in the United Nations of minimal standards, reflective of the principles in common Article 3, that must be observed “by all governmental and other authorities responsible for action in armed conflict.” G.A. Res. 2444 (XXIII), ¶ 1, U.N. GAOR, 23d Sess., U.N. Doc. A/7433 (1968). This statement acknowledges that the laws of armed conflict can be applied to a broad range of situations involving non-state actors, for it addresses not only the actions of governments, but also “other authorities” responsible for “action in armed conflict.” The United States, in supporting this resolution, indicated that it “constituted a reaffirmation of existing international law.” U.N. GAOR, 3d Comm., 23d Sess., 1634th mtg. at 2, U.N. Doc. A/C.3/SR 1634 (1968); see also Letter for Sen. Edward Kennedy, Chairman of the Subcommittee on Refugees of the Committee on the Judiciary, from J. Fred Buzhardt, General Counsel, Department of Defense (Sept. 22, 1972), reprinted in 67 Am. J. Int’l L. 122, 124 (1973) (noting that Hague Conventions of 1907, Geneva Conventions of 1949, and G.A. Res. 2444 reflect existing international law). A final source worth noting as reflective of some current theories of the scope of the laws of armed conflict is the decision of the International Criminal Tribunal for the Former Yugoslavia. That Tribunal concluded that certain standards of conduct must constrain all forms of armed conflict of whatever nature. The Tribunal was faced with arguments that certain constraints applied solely to international armed conflict and that only the minimal standards of common Article 3 of the Geneva Conventions could apply to “internal” conflicts. While acknowledging that a fuller set of restrictions would apply to inter-state conflicts, the Tribunal concluded that at least some standards (both articulated by common Article 3 and dictated by customary law) would apply to any situation of armed conflict and explained that an “armed conflict” triggering application of these rules “exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” Prosecutor v. Tadic, 35 I.L.M. at 54. The critical factor was whether hostilities had “exceed[ed] the intensity requirement,” id. at 55, sufficiently to be considered an “armed conflict.” As the decision of the 32 See also Quirin, 317 U.S. at 30, 35 (explaining that by permitting trial of offenses against the “law of war,” Congress had incorporated by reference the “common law applied by military tribunals” and principles “recognized in practice both here and abroad”); FM 27-10 ch. 1, ¶ 4(b) (“Although some of the law of war has not been incorporated in any treaty or convention to which the United States is a party, this body of unwritten or customary law is firmly established by the custom of nations and well defined by recognized authorities on international law.”). 273 227-329 VOL_25_PROOF.pdf 283 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 Tribunal suggests, the laws of armed conflict provide some minimal standards for any armed conflict, regardless of the particular characteristics of the conflict as one between states, or states and non-state actors. Thus, the Tribunal suggested that certain “[p]rinciples and rules of humanitarian law reflect ‘elementary considerations of humanity’ widely recognized as the mandatory minimum for conduct in armed conflicts of any kind.” Id. at 70 (emphasis added). It should be clear from the foregoing that there is sufficient authority in current sources under international law for the President to justify to the international community a decision that it will be the policy of the United States to apply the laws of armed conflict to terrorists in the current situation. The trigger for application of the laws does not depend on a formal concept of “war,” or on the political status of those engaged in the hostilities as sovereigns or states, but rather upon the fact of armed hostilities that have reached a certain level of intensity. If the attacks carried out by the terrorists meet the standards of initiating an “armed conflict,” therefore, the laws of armed conflict can be invoked. As one commentator summarized, “[f]or the purposes of bringing into operation the rules regulating the conduct of hostilities, it no longer matters whether those hostilities are characterized as war. It is the factual concept of armed conflict rather than the technical concept of war which makes those rules applicable.” C. Greenwood, The Concept of War in Modern International Law, 36 Int’l & Comp. L.Q. 283, 304 (1987); see also McCoubrey at 24 (“[War] has been deliberately abandoned as a definition of the circumstances of application of the jus in bello in general and of international humanitarian law in particular.”).33 In light of this analysis, two mistaken concepts that might be raised as a basis for denying the application of the laws of armed conflict to the terrorist attacks are worth addressing and dismissing here. First, some might point to statements in older texts that “war” is a condition that exists only between states and claim that there can be no war (and hence no application of the laws of war) here. See, e.g., 2 L. Oppenheim, International Law: A Treatise § 54, at 202 (H. Lauterpacht ed., 7th ed. 1952) (“War is a contention between two or more States through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases.”); id. § 56, at 203 (“To be war, the contention must be between States.”). There are several flaws in such an argument. To the extent it relies on the syllogism that, if a conflict is not between states it cannot be “war” and therefore the laws of war cannot apply, the conclusion is contradicted by the terms of the Geneva Conventions and consistent practice since World War II. As outlined 33 Based on rationales similar to those outlined here, multiple commentators have concluded that terrorist acts may properly trigger application of the laws of war. See, e.g., Crona & Richardson, 21 Okla. City U.L. Rev. 349; Bradley Larschan, Legal Aspects to the Control of Transnational Terrorism: An Overview, 13 Ohio N.U.L. Rev. 117, 147-48 (1986); Should the Laws of War Apply to Terrorists?, 79 Am. Soc’y Int’l L. Proc. 109, 109-11 (1985). 274 227-329 VOL_25_PROOF.pdf 284 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists above, it has long been recognized that formal concepts of “war” do not constrain application of the laws of armed conflict and that non-state actors are properly bound by certain minimum standards of international law when they engage in armed hostilities. In addition, the syllogism itself distorts what was meant by the statement that war “must be between States.” In making that assertion, authors such as Oppenheim were suggesting only that for a conflict to be legitimate warfare it must be between states. It does not follow from that proposition that, if there is a conflict that amounts to warfare and non-state actors are involved, none of the restrictions on armed conflict applies at all. To the contrary, as Oppenheim recognized, quite a different conclusion follows—namely, that non-state actors who engage in warfare are engaged in a form of warfare that is illegitimate. See, e.g., Oppenheim § 254, at 574. In other words, they do not escape the laws of war because they are non-state actors. Instead, they are unlawful belligerents. Finally, the absolutist proposition that rules restraining the conduct of armed conflict apply only to a war between two states was not accepted even by authors such as Oppenheim. The proposition thus would not even accurately reflect the analysis applied in the discussions of the laws of war on which it purports to rely. Oppenheim, for example, fully acknowledged that at least some aspects of the laws of war would properly apply in a conflict between a state and a non-state actor such as an insurgent group in a civil war. See id. § 59, at 209-10. Thus, even in older treatments of the subject, there is nothing talismanic about the involvement of states in a conflict for purposes of applying certain fundamental aspects of the laws of war. A related mistaken idea would be the suggestion that a trans-national attack by a non-state actor is somehow less susceptible to treatment under the law of war than such an attack carried on internally within a given state. It is true that the trans-national aspect of the attacks carried out by a non-state organization presents a somewhat novel situation. Articulations of the laws of armed conflict concerning non-state actors have been most fully developed in the context of internal conflicts in the form of rebellions or civil wars within a particular state. But, as explained above, there is nothing in the logic of the laws of armed conflict that would restrict its application in the case of a trans-border attack by a private armed band. The critical question for determining whether the laws of armed conflict apply here, therefore, is whether the terrorist attacks were a sufficiently organized and systematic set of violent actions that they crossed a sufficient level of intensity to be considered “armed conflict.” There can be no doubt that, whatever the “level of intensity” required to create an armed conflict, the gravity and scale of the violence inflicted on the United States on September 11 crossed that threshold. To use the words of the 1996 Amended Protocol II to the 1980 U.N. Convention on Conventional Weapons, which provides one guidepost for determining when an armed conflict exists, the attacks are not properly likened to mere “riots, isolated and sporadic acts of violence and other acts of a similar nature,” which do not 275 227-329 VOL_25_PROOF.pdf 285 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 constitute “armed conflict.” Rather, as explained above, the terrorists have carried on a sustained campaign against the United States, culminating most recently with a devastating series of coordinated attacks resulting in a massive death toll. In addition, the United States has determined that it is necessary to respond to the attacks with military force. That decision is significant because one element often cited for determining whether a situation involving a non-state actor rises to the level of an “armed conflict” (for example, for purposes of common Article 3 of the Geneva Conventions) is whether a state responds with its regular military forces. The United States has urged this position. See 3 U.S. Practice § 2, at 3443; see also G.I.A.D. Draper, The Red Cross Conventions 15-16 (1958) (under common Article 3, “armed conflict” exists when the government is “obliged to have recourse to its regular military forces”). Here, this criterion is overwhelmingly satisfied. As outlined above, the United States has found it necessary to respond with a massive use of military force. The current operations in Afghanistan and continuing preparations for a sustained campaign easily establish that the situation here involves an armed conflict for purposes of international law. Finally, as noted above, NATO’s decision to invoke Article 5 of the North Atlantic Treaty by deeming the terrorist acts an “armed attack” conclusively demonstrates that standards under international law for identifying an “armed conflict” have been satisfied here. IV. Under the Laws of War, the Terrorists Are Unlawful Combatants Subject to Trial and Punishment for Violations of the Laws of War We stress at the outset that determining that the terrorist attacks can be treated under the rubric of the “laws of war” does not mean that terrorists will receive the protections of the Geneva Conventions or the rights that the laws of war accord to lawful combatants. To the contrary, as the U.S. Army Field Manual, The Law of Land Warfare, makes clear, persons who do not comply with the conditions prescribed for recognition as lawful combatants (which include wearing a fixed insignia and bearing arms openly) are not entitled to status as prisoners of war and may be punished for hostile acts in violation of the laws of armed conflict.34 The Supreme Court made the same distinction clear in Quirin: “By universal agreement and practice the law of war draws a distinction between . . . those who are 34 FM 27-10, ch. 3, ¶ 80 (“Persons, such as guerillas and partisans, who take up arms and commit hostile acts without having complied with the conditions prescribed by the laws of war for recognition as belligerents . . . are, when captured by the injured party, not entitled to be treated as prisoners of war and may be tried and sentenced to execution or imprisonment.”); id. ¶ 81 (“Persons who, without having complied with the conditions prescribed by the laws of war for recognition as belligerents . . . commit hostile acts about or behind the lines of the enemy are not to be treated as prisoners of war and may be tried and sentenced to execution or imprisonment.”); id. ¶ 82 (“Persons in the foregoing categories who have attempted, committed, or conspired to commit hostile or belligerent acts are subject to the extreme penalty of death because of the danger inherent in their conduct.”). 276 227-329 VOL_25_PROOF.pdf 286 10/22/12 11:10 AM Legality of the Use of Military Commissions to Try Terrorists lawful and unlawful combatants. . . . Unlawful combatants . . . are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.” 317 U.S. at 30-31. We indicate here, based on preliminary research, some offenses that might be charged under the laws of war to establish the jurisdiction of military commissions. The list here is representative only and is not intended by any means to be exhaustive.35 As noted above, the terrorists involved in the attacks did not meet even the minimal conditions required to be recognized as lawful combatants. It is open to some doubt whether persons acting without authorization of a state could ever undertake hostile acts without violating the laws of war. But we need not reach that theory to conclude that the terrorists did not meet even the most basic requirements for complying with the laws of war as lawful combatants. They were not bearing arms openly and wearing fixed insignia. Thus, all of their hostile acts can be treated as violations of the laws of war. It is settled that any violation of the laws of war may be prosecuted as a “war crime.” The U.S. Army Field Manual, The Law of Land Warfare, provides that “[a]ny person, whether a member of the armed forces or a civilian, who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.” FM 27-10, ch. 8, ¶ 498. “The term ‘war crime’ is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the laws of war is a war crime.” Id. ¶ 499.36 Specific offenses here could include violations of the rule prohibiting “[u]se of civilian clothing by troops to conceal their military character,” id. ¶ 504(g),37 the rule prohibiting “[f]iring on localities which are undefended and without military significance,” id. ¶ 504(d), and the rule prohibiting deliberate targeting of civilian populations.38 35 The substance of the laws of war, and of the offenses defined by the laws of war, can be determined by looking to past American practice, especially the codification of the laws of war compiled by the United States Army in The Law of Land Warfare, and to sources of international law defining the laws of war, see, e.g., Quirin, 317 U.S. at 30 (examining “universal agreement and practice” and sources from Great Britain and Germany, among other countries). 36 The Manual further states that “[a]s the international law of war is part of the law of the land of the United States, enemy personnel charged with war crimes are tried directly under international law without recourse to the statutes of the United States. However, directives declaratory of international law may be promulgated to assist such tribunals in the performance of their function.” Id. ¶ 505(e). 37 One precedent from a trial before a military commission in the Civil War provides a useful parallel to the terrorist attacks. In 1865 some confederate soldiers were tried for “violations of the laws and usages of civilized war” in that they “came on board a United States merchant steamer in the port of Panama ‘in the guise of peaceful passengers’ with the purpose of capturing the vessel and converting her into a Confederate cruiser.” Quirin, 317 U.S. at 32 n.10. 38 See, e.g., FM 27-10, ch. 2, ¶ 25 (“[I]t is a generally recognized rule of international law that civilians must not be made the object of attack directed exclusively against them . . . .”); id. ¶ 39 (“The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.”). It is a commonly recognized principle under the customary laws of war 277 227-329 VOL_25_PROOF.pdf 287 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 In addition, individuals can be prosecuted under the laws of armed conflict using standard theories of aiding and abetting and conspiracy. The U.S. Army Field Manual provides that “[c]onspiracy, direct incitement, and attempts to commit, as well as complicity in the commission of, crimes against peace, crimes against humanity, and war crimes are punishable.” FM 27-10, ch. 8, ¶ 500. Commanders can also be held responsible for war crimes committed either under their orders or by those under their command.39 PATRICK F. PHILBIN Deputy Assistant Attorney General Office of Legal Counsel that civilian populations should not be the deliberate, sole target of attack. Thus, G.A. Res. 2444, supported by the United States, noted that “it is prohibited to launch attacks against the civilian population as such.” Id. ¶ 1(b); cf. Hersch Lauterpacht, The Problem of the Revision of the Law of War, 29 Brit. Y.B. Int’l L. 360, 369 (1952) (“[I]t is in [the] prohibition, which is a clear rule of law, of intentional terrorization—or destruction—of the civilian population as an avowed or obvious object of attack that lies the last vestige of the claim that war can be legally regulated at all. Without that irreducible principle of restraint there is no limit to the licence and depravity of force.”). 39 See, e.g., The Law of Land Warfare, FM 27-10, ch. 8, ¶ 501 (“In some cases, military commanders may be responsible for war crimes committed by subordinate members of the armed forces, or other persons subject to their control. . . . Such a responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned. The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the laws of war or to punish violators thereof.”); see also Yamashita, 327 U.S. at 14-18. 278 227-329 VOL_25_PROOF.pdf 288 10/22/12 11:10 AM

Write a legal research memo on the following topic.

Constitutionality of Proposed Conditions to Senate Consent to the Interim Convention on Conservation of North Pacific Fur Seals A proposed condition on the Senate’s consent to the Interim Convention on Conservation of North Pacific Fur Seals that dictates how the United States representative to the international N orth Pacific Fur Seal Commission must vote on certain matters before the Commission is unconstitutional because, rather than setting forth the Senate’s understanding o f the terms of the convention, it would interfere w ith the ability of the President and his appointee to execute faithfully the convention according to its terms. February 6, 1986 M em orandum O p in io n for th e Departm ent D of epu ty L e g a l A d v is e r , State You have asked for our views on the constitutionality of a proposed “condi­ tion” to the Senate’s consent to the Protocol Amending the Interim Convention on Conservation of North Pacific Fur Seals (Convention). The proposed condi• tion would require the United States representative to the North Pacific Fur Seal Commission (Commission) to vote against any recommendation before the Commission that would result in a commercial taking of fur seals within United States waters, and to abstain from voting on any recommendation that seeks to regulate taking of fur seals for subsistence purposes on the Pribilof Islands. For the reasons set forth below, we believe that this provision would impermissibly interfere with the President’s constitutional authority to execute the laws, and therefore would violate the constitutionally mandated separation of powers between the Legislative and Executive Branches. The Convention, originally signed in 1957, provides an international regime for the protection and management of fur seals. Parties to the Convention (Canada, Japan, the Soviet Union, and the United States) have agreed to coordinate scientific research programs and to cooperate in investigating the fur seal resources of the North Pacific Ocean. Art. II, § 1. The Convention specifically requires that the parties prohibit pelagic sealing (i.e., the killing of fur seals at sea). Art. III. The Convention also provides for establishment of the Commission, which is composed of one member from each party. The Commission is charged to: (a) formulate and coordinate research programs designed to achieve the objectives o f the Convention; 12 (b) recommend coordinated research programs to the parties for implementation; (c) study the data obtained from the implementation of coor­ dinated research programs; (d) recommend appropriate measures to the parties on the basis of findings obtained from the implementation of coordi­ nated research programs, including measures regarding the size and the sex and age composition of the seasonal commercial kill from a herd; and (e) recommend to the parties the methods of sealing best suited to achieve the objectives of the Convention. Art. V, § 2. Decisions and recommendations of the Commission must be unanimous, with each party having one vote. Art. V, § 4. The Interim Convention was extended by agreement of the parties in 1963, 1969, 1976, and 1980. On October 12, 1984, the parties signed another proto­ col extending the Convention until October 13, 1988, which the President has submitted to the Senate for its advice and consent.1 See Message from the President of the United States Transmitting the Protocol, signed at Washington on October 12, 1984, Amending the Interim Convention on Conservation of North Pacific Fur Seals between the United States, Canada, Japan, and the Soviet Union, S. Treaty Doc. No. 5, 99th Cong., 1st Sess. (1985). The staff of the Senate Committee on Foreign Relations, which is now reviewing the Protocol, has proposed that the Senate’s consent be subject to four “conditions.” The first of these, which you have asked us to review,2 would provide: That as a result of the decline of the fur seal population on the Pribilof Islands and other factors, whenever the North Pacific Fur Seal Commission, during the period of this Protocol, con­ siders recommendations to the Parties pursuant to Article V of the Convention, the United States Commissioner shall vote against any recommendation that would result in the taking of fur seals for commercial purposes on lands or waters within the jurisdiction of the United States. The Commissioner shall also abstain from voting on any recommendation that seeks to regu­ 1 In addition to extending the Convention, the parties agreed upon a “Statem ent o f C oncerns.” In that statem ent, the parties take note o f concerns over declines in the fur seal population, current econom ic conditions, and other problems o f fur seal m anagem ent and conservation. 2 The other three conditions provide that (1) the North Pacific fur seal herd shall be conserved, m anaged, and protected pursuant to U nited States dom estic laws to the extent such law s are m ore restrictive than provided for under the C onvention; (2) the Secretary o f C om m erce is to take appropriate steps under the C onvention to develop and im plem ent a program o f cooperative research in the Bering Sea ecosystem to determ ine the causes o f the fur seal population decline and to increase the health and viability of the Bering Sea ecosystem and the N orth Pacific fur seal population; and (3) the subsistence taking o f fur seals shall be at no cost to the governm ent You have not asked us to review these proposed conditions, and we therefore take no position as to their constitutionality. 13 late the taking of fur seals for subsistence purposes on the Pribilof Islands. Because of the interplay between the Convention and United States domestic law, the effect of this reservation would be to prohibit the commercial taking of fur seals on lands or waters within the jurisdiction of the United States,3 and to allow subsistence kills of fur seals on the Pribilof Islands only as permitted under United States domestic law.4 This proposed condition does not purport to set out the Senate’s understand­ ing of the scope of the international obligations imposed by the treaty or its domestic effects;5 nor does it purport to limit the obligations or rights of the parties under the treaty.6 Rather, it would limit the discretion of the United States representative, who is appointed by and answerable to the President, to implement the Convention in accordance with its agreed-upon terms. The condition thus reaches beyond the making of the treaty — i.e., delineating the legal obligations and rights of the parties under the agreement — to the actual execution of its terms. Because the execution of a treaty is clearly part of the President’s “executive power” under Article II of the Constitution, we believe 3 The killing o f fur seals w ithin United States w aters is effectively prohibited by the M arine Mammal P rotection A ct o f 1972, 16 U .S.C . §§ 1361 et seq , except as authorized under the Fur Seal Act o f 1966, 16 U .S.C . §§ 1151 et seq., w hich w as passed to im plem ent the Fur Seal Convention. Pursuant to § 107 o f the Fur Seal A ct, 16 U .S.C . § 1157, the Secretary o f State, with the concurrence o f the Secretary o f C om m erce, is authorized to accept o r reject any recommendation made by the C om m ission under A rticle V, and thereby to authorize com m ercial fu r seal kills. B ecause recom m endations o f the Com m ission m ust be unanim ous, the effect o f the reservation w ould be to preclu d e the C om m ission from m aking any recom m endation to the Secretary o f S tate fo r a com m ercial kill in U nited States w aters. 4 Indians, A leuts, and E skim os who live o n the coasts o f th e N orth Pacific Ocean are perm itted to take fur seals fo r subsistence purposes under the te rm s o f the Fur Seal Act and the M arine Mammal Protection Act. See 16 U .S.C . §§ 1152, 1379. 5 The S enate has often included “understandings” as part o f its consent to ratification. In general, such understandings interpret o r clarify the obligations undertaken by a party to the treaty, and do not change those oblig atio n s. For exam ple, the Senate F oreign Relations Com m ittee has recently approved the Genocide C onvention, subject to several understandings that set forth the Senate’s interpretation of certain key defin itio n s in the C onvention, and of the relationship betw een certain other provisions and obligations o f the U nited States un d er dom estic law. See S. E x . Rep. No. 2 , 99th Cong., 1st Sess. 1 6 ,2 1 -2 6 (1985). The Senate has included sim ilar understandings as p a rt o f its consent to a num ber o f other treaties. See generally C ongressional R esearch S ervice, Treaties a n d Other International Agreements: The Role o f the United States Senate, 98th C ong., 2d Sess. 11, 109-10 (Comm. Print prepared for the Senate Com m ittee on Foreign R elations, 1984) (C R S Study); S. Rep. No. 2 9 , 97th Cong., 1st Sess. 45 (1981) (SALT II Treaty); S. Rep. No. 47, 96th C ong., 1st Sess. 1 3-25 (1979) (P an am a Canal Treaty). 6 The S enate m ay, by “reservation” o r “ am endm ent,” condition its consent to a treaty on a revision or lim itation o f its term s. See generally Restatement o f the Law, Foreign Relations o f the United States (Tentative Draft No. 6) ( Restatement) § 3 1 3 ; CRS Study, supra, at 109-10. The resolution o f ratification for the G enocide C onvention, as reported by th e Senate Foreign R elations Com m ittee, would condition the S enate’s co n sen t to the C onvention on tw o su ch reservations: that the specific consent o f the U nited States is required befo re any dispute to which the U n ited States is a party may be submitted to the jurisdiction o f the International C ourt o f Justice, and that n o th in g in the C onvention requires or authorizes legislation or other action b y the U nited States “prohibited by th e C onstitution o f the United States as interpreted by the United S tates.” S. Ex. R ep. No. 2, supra, at 1 7-20. R eservations have also been attached by the Senate (or by the P resid en t) to ratificatio n o f numerous o th er treaties, including the Panam a Canal T reaty, see S Rep. No. 47, supra , at 2 4 -2 5 and the SA L T II Treaty, see S. Rep. No. 29, supra , at 44 -4 5 . See generally CRS Study, supra , at 10 9 -1 0 ; L. H enkin, Foreign Affairs and the Constitution 134 & n. 23 (1972). U nder international law, a substan tiv e revision to the treaty obligations (w hether characterized as a “reservation” or an “am endm ent”) m ust be accepted by the o th er contracting states. See Restatement, supra, § 313. 14 the proposed condition transgresses the “enduring” and “carefully defined limits” imposed by the Framers on the powers of the coordinate branches. See INS v. Chadha, 462 U.S. 919, 957-58 (1983). The powers of the national government were deliberately divided by the Framers among three coordinate branches because they considered the concen­ tration of governmental power to be the greatest threat to individual liberty. “Basic to the constitutional structure established by the Framers was the recognition that ‘[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.’” Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 57 (1982) (quoting The Federalist No. 47, at 300 (J. Madison) (H. Lodge ed. 1888)). Accordingly, “[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. at 951; see also Buckley v. Valeo, 424 U.S. 1, 122 (1976). The Supreme Court has long acknowledged that the partitions separating each branch of government from the others must be maintained inviolable if liberty is to be preserved. “The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.” INS v. Chadha, 462 U.S. at 951. The Framers recognized nonetheless that the peculiar nature of treaty-mak­ ing warranted a limited exception to the strict separation of powers between the branches because the negotiation and acceptance of treaties incorporates both legislative and executive responsibilities: [T]he particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. . . . The qualities elsewhere detailed as indis­ pensable in the management of foreign negotiations point out the executive as the most fit agent in those transactions; while the vast importance of the trust and the operation of treaties as laws plead strongly for the participation of the whole or a portion of the legislative body in the office of making them. 15 The F ederalist No. 75, at 450-51 (A. Hamilton) (C. Rossitered. 1961); see also The F ederalist No. 64, at 390-93 (J. Jay); The F ederalist No. 66, at 402-03 (A. Hamilton); see generally CRS Study, supra, at 25-28. Rather than vest either the Congress or the President with the sole power to make treaties, the Framers sought to accommodate the interests of both, providing that the President shall make the treaties, but subject to the “advice and consent” of the Senate.7 In practice, the Senate’s formal participation in the treaty-making process has been to approve, to approve with conditions, or to disapprove treaties negotiated by the Executive.8 Although the Senate’s practice of conditioning its consent to particular treaties is well-established, its authority is not unlim­ ited merely because it may withhold its consent.9 The general principle that Congress cannot attach unconstitutional conditions to a legislative benefit or program merely because it has authority to withhold the benefit or power entirely applies equally to the Senate’s advice and consent authority.10 For example, the requirement that the Senate consent to appointments of executive officers does not, by inference, empower the Senate to exert control over the removal of officers once approved. See M yers v. United States, 272 U.S. 52, 126 (1926).11 The Senate cannot use its advice and consent power to alter the constitutional distribution of powers or to impair constitutionally protected rights, any more than the President and the Senate together can override the requirements of the Constitution: [N]o agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution. * * * The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be 7 A rticle II, § 2, cl. 2 o f the Constitution provides in part that the President “shall have Power, by and with the A dvice and C onsent o f the Senate, to m ake Treaties, provided two thirds of the Senators present concur." 8 P resident W ashington attempted to co n su lt with the Senate, with lim ited success, on the negotiation of several treaties w ith the Indians. By 1816 th e practice had becom e so firm ly established that the Senate would grant its “advice and consent” to treaties alread y negotiated by the President or his representatives. See CRS Study, supra , at 3 4 -3 6 ; L. Henkio, Foreign Affairs and the Constitution , supra, at 131-32. 9 T he S enate adopted a resolution advising and consenting to the T reaty of 1797 w ith Tunis on condition that a certain article be suspended and renegotiated. The S enate later gave its advice and consent to the treaty and tw o o th er articles after they had b een renegotiated. C RS Study, supra , at 36. The Supreme C ourt has recognized the validity o f the practice, b u t has never delineated the o u te r limits o f the Senate’s pow er to condition its consent. See Fourteen Diamond Rings v. United States , 183 U.S. 176, 182 (1901) (Brown, J., concurring); Haver v. Yaker, 76 U.S. (9 W all.) 32, 35 (1869). 10 F o r exam ple. C ongress could, if it ch o se, bar aliens from our shores, but could not admit them under conditions w hich deprive them of constitutional rights such as the right to a fair trial. Wong Wing v. United States , 163 U .S. 228, 237 (1896). 11 S im ilarly, the Senate m ay not use its advice and consent pow er with respect to treaties to impose conditions affecting only the domestic asp ects o f a treaty. See Power Authority v. Federal Power Comm'n , 247 F.2d 538 (D.C. C ir.), vacated as moot , 355 U.S. 64 (1957). The S enate could not, for exam ple, condition its consent to the C onvention on a p rovision depriving the Secretaries of State and Commerce o f their authority u n d er the Fur Seal Act to adopt recom m endations o f the C om m ission. Such a condition would in effect am end the existing statutory discretion o f those Executive Branch officers, and could be accom plished only through plenary legislation. See INS v. Chadha, 462 U .S. at 9 52-54. 16 nullified by the Executive or by the Executive and the Senate combined. R eid v. Covert, 354 U.S. 1, 16-17 (1957). See also Geofroy v. Riggs, 133 U.S. 258, 267 (1890); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 620-21 (1871); Fourteen Diamond Rings v. United States, 183 U.S. at 183 (1901) (Brown, J. concurring). Thus, it is critical that the “JOINT AGENCY of the Chief Magistrate of the Union, and of two-thirds of the members of the Senate” 12 embodied in Article II, § 2, cl. 2, extends only to the making of treaties, i.e., the negotiation and agreement with other nations as to the legal obligations and rights of the parties. Nothing in the text of the Constitution or the deliberations of the Framers suggests that the Senate’s advice and consent role in the treaty-making process was intended to alter the fundamental constitutional balance between legislative authority and executive authority. In fact, the Framers included the Senate in the treaty-making process precisely because the result of that process, just as the result of the legislative process, is essentially a law that has “the effect of altering the legal rights, duties and relations of persons .. . outside the Legislative Branch.” INS v. Chadha, 462 U.S. at 952. Under the Constitution, only the President is given the “executive power,” and is charged with the specific responsibility to “take Care that the Laws be faithfully executed.” U.S. Const, art. II, §§ 1 and 3. It is indisputable that treaties are among the laws to be executed by the President,13 and that “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations,” which necessarily includes fulfilling obligations under international agreements or treaties, is part of the executive power. See United States v. Curtiss-W right Export Corp., 299 U.S. 304, 320 (1936); see also Haig v. Agee, 453 U.S. 280, 291-92 (1981); Chicago & Southern A ir Lines v. Waterman S.S. Corp., 333 U.S. 103, 190 (1948). The condition proposed by the staff of the Senate Foreign Relations Com­ mittee would strike at the heart of the President’s executive prerogatives. Absent such a condition, the United States representative to the Fur Seal Commission would be free to follow the directions of the President in evaluat­ ing the complex questions that come within the jurisdiction of the Commission. The proposed condition, however, would eliminate that discretion with respect to two issues likely to come before the Commission. Such a limitation on the discretion of the President’s representative — a limitation that takes effect only after the scope of the legal obligations of all parties has been agreed upon14 — 12 The Federalist No. 66, at 406 (A. H amilton) (C. R ossiter ed. 1961). 13 A rticle VI, cl. 2 o f the C onstitution provides in part that “all Treaties m ade, o r which shall be made, under the A uthority o f the U nited States, shall be the supreme Law o f the Land.” The President’s constitutional duty under A rticle II extends to treaties as w ell as to statutes and the C onstitution itself. See In re Neagle, 135 U.S. 1, 64 (1890); 1 Op. A tt’y Gen. 566, 570 (1822). 14 The condition is thus different from a reservation that w ould seek to lim it the legal authority o f the C om m ission to consider recom m endations for com m ercial fur seal kills within U nited States waters, or for Continued 17 would directly undercut the President’s authority “as the sole organ of the federal government in the field of international relations.” The Senate cannot constitutionally impose such a condition to its consent to ratification of a treaty, any more than it could consent to the appointment of an ambassador on the condition that the ambassador refrain from taking certain positions in negotiations or discussions with his designated country. See generally M yers v. United States, 272 U.S. at 126; 3 Op. Att’y Gen. 188, 189-90 (1837). C harles J. C ooper A ssistant Attorney General Office o f Legal Counsel 14 ( . . . continued) subsistence harvests on the Pribilof Islands. Such a reservation would be consistent w ith the constitutional separation o f pow ers, as it would be a leg itim ate exercise o f the treaty-m aking pow er to define the legal obligatio n s and rights o f the parties, prior to conclusion o f the treaty. O f course, any such reservation would have to be subm itted to the o th er parties fo r their agreem ent prior to taking effect. See supra note 6. 18

Write a legal research memo on the following topic.

Constitutionality of Proposed Conditions to Senate Consent to the Interim Convention on Conservation of North Pacific Fur Seals A proposed condition on the Senate’s consent to the Interim Convention on Conservation of North Pacific Fur Seals that dictates how the United States representative to the international N orth Pacific Fur Seal Commission must vote on certain matters before the Commission is unconstitutional because, rather than setting forth the Senate’s understanding o f the terms of the convention, it would interfere w ith the ability of the President and his appointee to execute faithfully the convention according to its terms. February 6, 1986 M em orandum O p in io n for th e Departm ent D of epu ty L e g a l A d v is e r , State You have asked for our views on the constitutionality of a proposed “condi­ tion” to the Senate’s consent to the Protocol Amending the Interim Convention on Conservation of North Pacific Fur Seals (Convention). The proposed condi• tion would require the United States representative to the North Pacific Fur Seal Commission (Commission) to vote against any recommendation before the Commission that would result in a commercial taking of fur seals within United States waters, and to abstain from voting on any recommendation that seeks to regulate taking of fur seals for subsistence purposes on the Pribilof Islands. For the reasons set forth below, we believe that this provision would impermissibly interfere with the President’s constitutional authority to execute the laws, and therefore would violate the constitutionally mandated separation of powers between the Legislative and Executive Branches. The Convention, originally signed in 1957, provides an international regime for the protection and management of fur seals. Parties to the Convention (Canada, Japan, the Soviet Union, and the United States) have agreed to coordinate scientific research programs and to cooperate in investigating the fur seal resources of the North Pacific Ocean. Art. II, § 1. The Convention specifically requires that the parties prohibit pelagic sealing (i.e., the killing of fur seals at sea). Art. III. The Convention also provides for establishment of the Commission, which is composed of one member from each party. The Commission is charged to: (a) formulate and coordinate research programs designed to achieve the objectives o f the Convention; 12 (b) recommend coordinated research programs to the parties for implementation; (c) study the data obtained from the implementation of coor­ dinated research programs; (d) recommend appropriate measures to the parties on the basis of findings obtained from the implementation of coordi­ nated research programs, including measures regarding the size and the sex and age composition of the seasonal commercial kill from a herd; and (e) recommend to the parties the methods of sealing best suited to achieve the objectives of the Convention. Art. V, § 2. Decisions and recommendations of the Commission must be unanimous, with each party having one vote. Art. V, § 4. The Interim Convention was extended by agreement of the parties in 1963, 1969, 1976, and 1980. On October 12, 1984, the parties signed another proto­ col extending the Convention until October 13, 1988, which the President has submitted to the Senate for its advice and consent.1 See Message from the President of the United States Transmitting the Protocol, signed at Washington on October 12, 1984, Amending the Interim Convention on Conservation of North Pacific Fur Seals between the United States, Canada, Japan, and the Soviet Union, S. Treaty Doc. No. 5, 99th Cong., 1st Sess. (1985). The staff of the Senate Committee on Foreign Relations, which is now reviewing the Protocol, has proposed that the Senate’s consent be subject to four “conditions.” The first of these, which you have asked us to review,2 would provide: That as a result of the decline of the fur seal population on the Pribilof Islands and other factors, whenever the North Pacific Fur Seal Commission, during the period of this Protocol, con­ siders recommendations to the Parties pursuant to Article V of the Convention, the United States Commissioner shall vote against any recommendation that would result in the taking of fur seals for commercial purposes on lands or waters within the jurisdiction of the United States. The Commissioner shall also abstain from voting on any recommendation that seeks to regu­ 1 In addition to extending the Convention, the parties agreed upon a “Statem ent o f C oncerns.” In that statem ent, the parties take note o f concerns over declines in the fur seal population, current econom ic conditions, and other problems o f fur seal m anagem ent and conservation. 2 The other three conditions provide that (1) the North Pacific fur seal herd shall be conserved, m anaged, and protected pursuant to U nited States dom estic laws to the extent such law s are m ore restrictive than provided for under the C onvention; (2) the Secretary o f C om m erce is to take appropriate steps under the C onvention to develop and im plem ent a program o f cooperative research in the Bering Sea ecosystem to determ ine the causes o f the fur seal population decline and to increase the health and viability of the Bering Sea ecosystem and the N orth Pacific fur seal population; and (3) the subsistence taking o f fur seals shall be at no cost to the governm ent You have not asked us to review these proposed conditions, and we therefore take no position as to their constitutionality. 13 late the taking of fur seals for subsistence purposes on the Pribilof Islands. Because of the interplay between the Convention and United States domestic law, the effect of this reservation would be to prohibit the commercial taking of fur seals on lands or waters within the jurisdiction of the United States,3 and to allow subsistence kills of fur seals on the Pribilof Islands only as permitted under United States domestic law.4 This proposed condition does not purport to set out the Senate’s understand­ ing of the scope of the international obligations imposed by the treaty or its domestic effects;5 nor does it purport to limit the obligations or rights of the parties under the treaty.6 Rather, it would limit the discretion of the United States representative, who is appointed by and answerable to the President, to implement the Convention in accordance with its agreed-upon terms. The condition thus reaches beyond the making of the treaty — i.e., delineating the legal obligations and rights of the parties under the agreement — to the actual execution of its terms. Because the execution of a treaty is clearly part of the President’s “executive power” under Article II of the Constitution, we believe 3 The killing o f fur seals w ithin United States w aters is effectively prohibited by the M arine Mammal P rotection A ct o f 1972, 16 U .S.C . §§ 1361 et seq , except as authorized under the Fur Seal Act o f 1966, 16 U .S.C . §§ 1151 et seq., w hich w as passed to im plem ent the Fur Seal Convention. Pursuant to § 107 o f the Fur Seal A ct, 16 U .S.C . § 1157, the Secretary o f State, with the concurrence o f the Secretary o f C om m erce, is authorized to accept o r reject any recommendation made by the C om m ission under A rticle V, and thereby to authorize com m ercial fu r seal kills. B ecause recom m endations o f the Com m ission m ust be unanim ous, the effect o f the reservation w ould be to preclu d e the C om m ission from m aking any recom m endation to the Secretary o f S tate fo r a com m ercial kill in U nited States w aters. 4 Indians, A leuts, and E skim os who live o n the coasts o f th e N orth Pacific Ocean are perm itted to take fur seals fo r subsistence purposes under the te rm s o f the Fur Seal Act and the M arine Mammal Protection Act. See 16 U .S.C . §§ 1152, 1379. 5 The S enate has often included “understandings” as part o f its consent to ratification. In general, such understandings interpret o r clarify the obligations undertaken by a party to the treaty, and do not change those oblig atio n s. For exam ple, the Senate F oreign Relations Com m ittee has recently approved the Genocide C onvention, subject to several understandings that set forth the Senate’s interpretation of certain key defin itio n s in the C onvention, and of the relationship betw een certain other provisions and obligations o f the U nited States un d er dom estic law. See S. E x . Rep. No. 2 , 99th Cong., 1st Sess. 1 6 ,2 1 -2 6 (1985). The Senate has included sim ilar understandings as p a rt o f its consent to a num ber o f other treaties. See generally C ongressional R esearch S ervice, Treaties a n d Other International Agreements: The Role o f the United States Senate, 98th C ong., 2d Sess. 11, 109-10 (Comm. Print prepared for the Senate Com m ittee on Foreign R elations, 1984) (C R S Study); S. Rep. No. 2 9 , 97th Cong., 1st Sess. 45 (1981) (SALT II Treaty); S. Rep. No. 47, 96th C ong., 1st Sess. 1 3-25 (1979) (P an am a Canal Treaty). 6 The S enate m ay, by “reservation” o r “ am endm ent,” condition its consent to a treaty on a revision or lim itation o f its term s. See generally Restatement o f the Law, Foreign Relations o f the United States (Tentative Draft No. 6) ( Restatement) § 3 1 3 ; CRS Study, supra, at 109-10. The resolution o f ratification for the G enocide C onvention, as reported by th e Senate Foreign R elations Com m ittee, would condition the S enate’s co n sen t to the C onvention on tw o su ch reservations: that the specific consent o f the U nited States is required befo re any dispute to which the U n ited States is a party may be submitted to the jurisdiction o f the International C ourt o f Justice, and that n o th in g in the C onvention requires or authorizes legislation or other action b y the U nited States “prohibited by th e C onstitution o f the United States as interpreted by the United S tates.” S. Ex. R ep. No. 2, supra, at 1 7-20. R eservations have also been attached by the Senate (or by the P resid en t) to ratificatio n o f numerous o th er treaties, including the Panam a Canal T reaty, see S Rep. No. 47, supra , at 2 4 -2 5 and the SA L T II Treaty, see S. Rep. No. 29, supra , at 44 -4 5 . See generally CRS Study, supra , at 10 9 -1 0 ; L. H enkin, Foreign Affairs and the Constitution 134 & n. 23 (1972). U nder international law, a substan tiv e revision to the treaty obligations (w hether characterized as a “reservation” or an “am endm ent”) m ust be accepted by the o th er contracting states. See Restatement, supra, § 313. 14 the proposed condition transgresses the “enduring” and “carefully defined limits” imposed by the Framers on the powers of the coordinate branches. See INS v. Chadha, 462 U.S. 919, 957-58 (1983). The powers of the national government were deliberately divided by the Framers among three coordinate branches because they considered the concen­ tration of governmental power to be the greatest threat to individual liberty. “Basic to the constitutional structure established by the Framers was the recognition that ‘[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.’” Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 57 (1982) (quoting The Federalist No. 47, at 300 (J. Madison) (H. Lodge ed. 1888)). Accordingly, “[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. at 951; see also Buckley v. Valeo, 424 U.S. 1, 122 (1976). The Supreme Court has long acknowledged that the partitions separating each branch of government from the others must be maintained inviolable if liberty is to be preserved. “The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.” INS v. Chadha, 462 U.S. at 951. The Framers recognized nonetheless that the peculiar nature of treaty-mak­ ing warranted a limited exception to the strict separation of powers between the branches because the negotiation and acceptance of treaties incorporates both legislative and executive responsibilities: [T]he particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. . . . The qualities elsewhere detailed as indis­ pensable in the management of foreign negotiations point out the executive as the most fit agent in those transactions; while the vast importance of the trust and the operation of treaties as laws plead strongly for the participation of the whole or a portion of the legislative body in the office of making them. 15 The F ederalist No. 75, at 450-51 (A. Hamilton) (C. Rossitered. 1961); see also The F ederalist No. 64, at 390-93 (J. Jay); The F ederalist No. 66, at 402-03 (A. Hamilton); see generally CRS Study, supra, at 25-28. Rather than vest either the Congress or the President with the sole power to make treaties, the Framers sought to accommodate the interests of both, providing that the President shall make the treaties, but subject to the “advice and consent” of the Senate.7 In practice, the Senate’s formal participation in the treaty-making process has been to approve, to approve with conditions, or to disapprove treaties negotiated by the Executive.8 Although the Senate’s practice of conditioning its consent to particular treaties is well-established, its authority is not unlim­ ited merely because it may withhold its consent.9 The general principle that Congress cannot attach unconstitutional conditions to a legislative benefit or program merely because it has authority to withhold the benefit or power entirely applies equally to the Senate’s advice and consent authority.10 For example, the requirement that the Senate consent to appointments of executive officers does not, by inference, empower the Senate to exert control over the removal of officers once approved. See M yers v. United States, 272 U.S. 52, 126 (1926).11 The Senate cannot use its advice and consent power to alter the constitutional distribution of powers or to impair constitutionally protected rights, any more than the President and the Senate together can override the requirements of the Constitution: [N]o agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution. * * * The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be 7 A rticle II, § 2, cl. 2 o f the Constitution provides in part that the President “shall have Power, by and with the A dvice and C onsent o f the Senate, to m ake Treaties, provided two thirds of the Senators present concur." 8 P resident W ashington attempted to co n su lt with the Senate, with lim ited success, on the negotiation of several treaties w ith the Indians. By 1816 th e practice had becom e so firm ly established that the Senate would grant its “advice and consent” to treaties alread y negotiated by the President or his representatives. See CRS Study, supra , at 3 4 -3 6 ; L. Henkio, Foreign Affairs and the Constitution , supra, at 131-32. 9 T he S enate adopted a resolution advising and consenting to the T reaty of 1797 w ith Tunis on condition that a certain article be suspended and renegotiated. The S enate later gave its advice and consent to the treaty and tw o o th er articles after they had b een renegotiated. C RS Study, supra , at 36. The Supreme C ourt has recognized the validity o f the practice, b u t has never delineated the o u te r limits o f the Senate’s pow er to condition its consent. See Fourteen Diamond Rings v. United States , 183 U.S. 176, 182 (1901) (Brown, J., concurring); Haver v. Yaker, 76 U.S. (9 W all.) 32, 35 (1869). 10 F o r exam ple. C ongress could, if it ch o se, bar aliens from our shores, but could not admit them under conditions w hich deprive them of constitutional rights such as the right to a fair trial. Wong Wing v. United States , 163 U .S. 228, 237 (1896). 11 S im ilarly, the Senate m ay not use its advice and consent pow er with respect to treaties to impose conditions affecting only the domestic asp ects o f a treaty. See Power Authority v. Federal Power Comm'n , 247 F.2d 538 (D.C. C ir.), vacated as moot , 355 U.S. 64 (1957). The S enate could not, for exam ple, condition its consent to the C onvention on a p rovision depriving the Secretaries of State and Commerce o f their authority u n d er the Fur Seal Act to adopt recom m endations o f the C om m ission. Such a condition would in effect am end the existing statutory discretion o f those Executive Branch officers, and could be accom plished only through plenary legislation. See INS v. Chadha, 462 U .S. at 9 52-54. 16 nullified by the Executive or by the Executive and the Senate combined. R eid v. Covert, 354 U.S. 1, 16-17 (1957). See also Geofroy v. Riggs, 133 U.S. 258, 267 (1890); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 620-21 (1871); Fourteen Diamond Rings v. United States, 183 U.S. at 183 (1901) (Brown, J. concurring). Thus, it is critical that the “JOINT AGENCY of the Chief Magistrate of the Union, and of two-thirds of the members of the Senate” 12 embodied in Article II, § 2, cl. 2, extends only to the making of treaties, i.e., the negotiation and agreement with other nations as to the legal obligations and rights of the parties. Nothing in the text of the Constitution or the deliberations of the Framers suggests that the Senate’s advice and consent role in the treaty-making process was intended to alter the fundamental constitutional balance between legislative authority and executive authority. In fact, the Framers included the Senate in the treaty-making process precisely because the result of that process, just as the result of the legislative process, is essentially a law that has “the effect of altering the legal rights, duties and relations of persons .. . outside the Legislative Branch.” INS v. Chadha, 462 U.S. at 952. Under the Constitution, only the President is given the “executive power,” and is charged with the specific responsibility to “take Care that the Laws be faithfully executed.” U.S. Const, art. II, §§ 1 and 3. It is indisputable that treaties are among the laws to be executed by the President,13 and that “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations,” which necessarily includes fulfilling obligations under international agreements or treaties, is part of the executive power. See United States v. Curtiss-W right Export Corp., 299 U.S. 304, 320 (1936); see also Haig v. Agee, 453 U.S. 280, 291-92 (1981); Chicago & Southern A ir Lines v. Waterman S.S. Corp., 333 U.S. 103, 190 (1948). The condition proposed by the staff of the Senate Foreign Relations Com­ mittee would strike at the heart of the President’s executive prerogatives. Absent such a condition, the United States representative to the Fur Seal Commission would be free to follow the directions of the President in evaluat­ ing the complex questions that come within the jurisdiction of the Commission. The proposed condition, however, would eliminate that discretion with respect to two issues likely to come before the Commission. Such a limitation on the discretion of the President’s representative — a limitation that takes effect only after the scope of the legal obligations of all parties has been agreed upon14 — 12 The Federalist No. 66, at 406 (A. H amilton) (C. R ossiter ed. 1961). 13 A rticle VI, cl. 2 o f the C onstitution provides in part that “all Treaties m ade, o r which shall be made, under the A uthority o f the U nited States, shall be the supreme Law o f the Land.” The President’s constitutional duty under A rticle II extends to treaties as w ell as to statutes and the C onstitution itself. See In re Neagle, 135 U.S. 1, 64 (1890); 1 Op. A tt’y Gen. 566, 570 (1822). 14 The condition is thus different from a reservation that w ould seek to lim it the legal authority o f the C om m ission to consider recom m endations for com m ercial fur seal kills within U nited States waters, or for Continued 17 would directly undercut the President’s authority “as the sole organ of the federal government in the field of international relations.” The Senate cannot constitutionally impose such a condition to its consent to ratification of a treaty, any more than it could consent to the appointment of an ambassador on the condition that the ambassador refrain from taking certain positions in negotiations or discussions with his designated country. See generally M yers v. United States, 272 U.S. at 126; 3 Op. Att’y Gen. 188, 189-90 (1837). C harles J. C ooper A ssistant Attorney General Office o f Legal Counsel 14 ( . . . continued) subsistence harvests on the Pribilof Islands. Such a reservation would be consistent w ith the constitutional separation o f pow ers, as it would be a leg itim ate exercise o f the treaty-m aking pow er to define the legal obligatio n s and rights o f the parties, prior to conclusion o f the treaty. O f course, any such reservation would have to be subm itted to the o th er parties fo r their agreem ent prior to taking effect. See supra note 6. 18

Write a legal research memo on the following topic.

Constitutionality of Proposed Conditions to Senate Consent to the Interim Convention on Conservation of North Pacific Fur Seals A proposed condition on the Senate’s consent to the Interim Convention on Conservation of North Pacific Fur Seals that dictates how the United States representative to the international N orth Pacific Fur Seal Commission must vote on certain matters before the Commission is unconstitutional because, rather than setting forth the Senate’s understanding o f the terms of the convention, it would interfere w ith the ability of the President and his appointee to execute faithfully the convention according to its terms. February 6, 1986 M em orandum O p in io n for th e Departm ent D of epu ty L e g a l A d v is e r , State You have asked for our views on the constitutionality of a proposed “condi­ tion” to the Senate’s consent to the Protocol Amending the Interim Convention on Conservation of North Pacific Fur Seals (Convention). The proposed condi• tion would require the United States representative to the North Pacific Fur Seal Commission (Commission) to vote against any recommendation before the Commission that would result in a commercial taking of fur seals within United States waters, and to abstain from voting on any recommendation that seeks to regulate taking of fur seals for subsistence purposes on the Pribilof Islands. For the reasons set forth below, we believe that this provision would impermissibly interfere with the President’s constitutional authority to execute the laws, and therefore would violate the constitutionally mandated separation of powers between the Legislative and Executive Branches. The Convention, originally signed in 1957, provides an international regime for the protection and management of fur seals. Parties to the Convention (Canada, Japan, the Soviet Union, and the United States) have agreed to coordinate scientific research programs and to cooperate in investigating the fur seal resources of the North Pacific Ocean. Art. II, § 1. The Convention specifically requires that the parties prohibit pelagic sealing (i.e., the killing of fur seals at sea). Art. III. The Convention also provides for establishment of the Commission, which is composed of one member from each party. The Commission is charged to: (a) formulate and coordinate research programs designed to achieve the objectives o f the Convention; 12 (b) recommend coordinated research programs to the parties for implementation; (c) study the data obtained from the implementation of coor­ dinated research programs; (d) recommend appropriate measures to the parties on the basis of findings obtained from the implementation of coordi­ nated research programs, including measures regarding the size and the sex and age composition of the seasonal commercial kill from a herd; and (e) recommend to the parties the methods of sealing best suited to achieve the objectives of the Convention. Art. V, § 2. Decisions and recommendations of the Commission must be unanimous, with each party having one vote. Art. V, § 4. The Interim Convention was extended by agreement of the parties in 1963, 1969, 1976, and 1980. On October 12, 1984, the parties signed another proto­ col extending the Convention until October 13, 1988, which the President has submitted to the Senate for its advice and consent.1 See Message from the President of the United States Transmitting the Protocol, signed at Washington on October 12, 1984, Amending the Interim Convention on Conservation of North Pacific Fur Seals between the United States, Canada, Japan, and the Soviet Union, S. Treaty Doc. No. 5, 99th Cong., 1st Sess. (1985). The staff of the Senate Committee on Foreign Relations, which is now reviewing the Protocol, has proposed that the Senate’s consent be subject to four “conditions.” The first of these, which you have asked us to review,2 would provide: That as a result of the decline of the fur seal population on the Pribilof Islands and other factors, whenever the North Pacific Fur Seal Commission, during the period of this Protocol, con­ siders recommendations to the Parties pursuant to Article V of the Convention, the United States Commissioner shall vote against any recommendation that would result in the taking of fur seals for commercial purposes on lands or waters within the jurisdiction of the United States. The Commissioner shall also abstain from voting on any recommendation that seeks to regu­ 1 In addition to extending the Convention, the parties agreed upon a “Statem ent o f C oncerns.” In that statem ent, the parties take note o f concerns over declines in the fur seal population, current econom ic conditions, and other problems o f fur seal m anagem ent and conservation. 2 The other three conditions provide that (1) the North Pacific fur seal herd shall be conserved, m anaged, and protected pursuant to U nited States dom estic laws to the extent such law s are m ore restrictive than provided for under the C onvention; (2) the Secretary o f C om m erce is to take appropriate steps under the C onvention to develop and im plem ent a program o f cooperative research in the Bering Sea ecosystem to determ ine the causes o f the fur seal population decline and to increase the health and viability of the Bering Sea ecosystem and the N orth Pacific fur seal population; and (3) the subsistence taking o f fur seals shall be at no cost to the governm ent You have not asked us to review these proposed conditions, and we therefore take no position as to their constitutionality. 13 late the taking of fur seals for subsistence purposes on the Pribilof Islands. Because of the interplay between the Convention and United States domestic law, the effect of this reservation would be to prohibit the commercial taking of fur seals on lands or waters within the jurisdiction of the United States,3 and to allow subsistence kills of fur seals on the Pribilof Islands only as permitted under United States domestic law.4 This proposed condition does not purport to set out the Senate’s understand­ ing of the scope of the international obligations imposed by the treaty or its domestic effects;5 nor does it purport to limit the obligations or rights of the parties under the treaty.6 Rather, it would limit the discretion of the United States representative, who is appointed by and answerable to the President, to implement the Convention in accordance with its agreed-upon terms. The condition thus reaches beyond the making of the treaty — i.e., delineating the legal obligations and rights of the parties under the agreement — to the actual execution of its terms. Because the execution of a treaty is clearly part of the President’s “executive power” under Article II of the Constitution, we believe 3 The killing o f fur seals w ithin United States w aters is effectively prohibited by the M arine Mammal P rotection A ct o f 1972, 16 U .S.C . §§ 1361 et seq , except as authorized under the Fur Seal Act o f 1966, 16 U .S.C . §§ 1151 et seq., w hich w as passed to im plem ent the Fur Seal Convention. Pursuant to § 107 o f the Fur Seal A ct, 16 U .S.C . § 1157, the Secretary o f State, with the concurrence o f the Secretary o f C om m erce, is authorized to accept o r reject any recommendation made by the C om m ission under A rticle V, and thereby to authorize com m ercial fu r seal kills. B ecause recom m endations o f the Com m ission m ust be unanim ous, the effect o f the reservation w ould be to preclu d e the C om m ission from m aking any recom m endation to the Secretary o f S tate fo r a com m ercial kill in U nited States w aters. 4 Indians, A leuts, and E skim os who live o n the coasts o f th e N orth Pacific Ocean are perm itted to take fur seals fo r subsistence purposes under the te rm s o f the Fur Seal Act and the M arine Mammal Protection Act. See 16 U .S.C . §§ 1152, 1379. 5 The S enate has often included “understandings” as part o f its consent to ratification. In general, such understandings interpret o r clarify the obligations undertaken by a party to the treaty, and do not change those oblig atio n s. For exam ple, the Senate F oreign Relations Com m ittee has recently approved the Genocide C onvention, subject to several understandings that set forth the Senate’s interpretation of certain key defin itio n s in the C onvention, and of the relationship betw een certain other provisions and obligations o f the U nited States un d er dom estic law. See S. E x . Rep. No. 2 , 99th Cong., 1st Sess. 1 6 ,2 1 -2 6 (1985). The Senate has included sim ilar understandings as p a rt o f its consent to a num ber o f other treaties. See generally C ongressional R esearch S ervice, Treaties a n d Other International Agreements: The Role o f the United States Senate, 98th C ong., 2d Sess. 11, 109-10 (Comm. Print prepared for the Senate Com m ittee on Foreign R elations, 1984) (C R S Study); S. Rep. No. 2 9 , 97th Cong., 1st Sess. 45 (1981) (SALT II Treaty); S. Rep. No. 47, 96th C ong., 1st Sess. 1 3-25 (1979) (P an am a Canal Treaty). 6 The S enate m ay, by “reservation” o r “ am endm ent,” condition its consent to a treaty on a revision or lim itation o f its term s. See generally Restatement o f the Law, Foreign Relations o f the United States (Tentative Draft No. 6) ( Restatement) § 3 1 3 ; CRS Study, supra, at 109-10. The resolution o f ratification for the G enocide C onvention, as reported by th e Senate Foreign R elations Com m ittee, would condition the S enate’s co n sen t to the C onvention on tw o su ch reservations: that the specific consent o f the U nited States is required befo re any dispute to which the U n ited States is a party may be submitted to the jurisdiction o f the International C ourt o f Justice, and that n o th in g in the C onvention requires or authorizes legislation or other action b y the U nited States “prohibited by th e C onstitution o f the United States as interpreted by the United S tates.” S. Ex. R ep. No. 2, supra, at 1 7-20. R eservations have also been attached by the Senate (or by the P resid en t) to ratificatio n o f numerous o th er treaties, including the Panam a Canal T reaty, see S Rep. No. 47, supra , at 2 4 -2 5 and the SA L T II Treaty, see S. Rep. No. 29, supra , at 44 -4 5 . See generally CRS Study, supra , at 10 9 -1 0 ; L. H enkin, Foreign Affairs and the Constitution 134 & n. 23 (1972). U nder international law, a substan tiv e revision to the treaty obligations (w hether characterized as a “reservation” or an “am endm ent”) m ust be accepted by the o th er contracting states. See Restatement, supra, § 313. 14 the proposed condition transgresses the “enduring” and “carefully defined limits” imposed by the Framers on the powers of the coordinate branches. See INS v. Chadha, 462 U.S. 919, 957-58 (1983). The powers of the national government were deliberately divided by the Framers among three coordinate branches because they considered the concen­ tration of governmental power to be the greatest threat to individual liberty. “Basic to the constitutional structure established by the Framers was the recognition that ‘[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.’” Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 57 (1982) (quoting The Federalist No. 47, at 300 (J. Madison) (H. Lodge ed. 1888)). Accordingly, “[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. at 951; see also Buckley v. Valeo, 424 U.S. 1, 122 (1976). The Supreme Court has long acknowledged that the partitions separating each branch of government from the others must be maintained inviolable if liberty is to be preserved. “The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.” INS v. Chadha, 462 U.S. at 951. The Framers recognized nonetheless that the peculiar nature of treaty-mak­ ing warranted a limited exception to the strict separation of powers between the branches because the negotiation and acceptance of treaties incorporates both legislative and executive responsibilities: [T]he particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. . . . The qualities elsewhere detailed as indis­ pensable in the management of foreign negotiations point out the executive as the most fit agent in those transactions; while the vast importance of the trust and the operation of treaties as laws plead strongly for the participation of the whole or a portion of the legislative body in the office of making them. 15 The F ederalist No. 75, at 450-51 (A. Hamilton) (C. Rossitered. 1961); see also The F ederalist No. 64, at 390-93 (J. Jay); The F ederalist No. 66, at 402-03 (A. Hamilton); see generally CRS Study, supra, at 25-28. Rather than vest either the Congress or the President with the sole power to make treaties, the Framers sought to accommodate the interests of both, providing that the President shall make the treaties, but subject to the “advice and consent” of the Senate.7 In practice, the Senate’s formal participation in the treaty-making process has been to approve, to approve with conditions, or to disapprove treaties negotiated by the Executive.8 Although the Senate’s practice of conditioning its consent to particular treaties is well-established, its authority is not unlim­ ited merely because it may withhold its consent.9 The general principle that Congress cannot attach unconstitutional conditions to a legislative benefit or program merely because it has authority to withhold the benefit or power entirely applies equally to the Senate’s advice and consent authority.10 For example, the requirement that the Senate consent to appointments of executive officers does not, by inference, empower the Senate to exert control over the removal of officers once approved. See M yers v. United States, 272 U.S. 52, 126 (1926).11 The Senate cannot use its advice and consent power to alter the constitutional distribution of powers or to impair constitutionally protected rights, any more than the President and the Senate together can override the requirements of the Constitution: [N]o agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution. * * * The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be 7 A rticle II, § 2, cl. 2 o f the Constitution provides in part that the President “shall have Power, by and with the A dvice and C onsent o f the Senate, to m ake Treaties, provided two thirds of the Senators present concur." 8 P resident W ashington attempted to co n su lt with the Senate, with lim ited success, on the negotiation of several treaties w ith the Indians. By 1816 th e practice had becom e so firm ly established that the Senate would grant its “advice and consent” to treaties alread y negotiated by the President or his representatives. See CRS Study, supra , at 3 4 -3 6 ; L. Henkio, Foreign Affairs and the Constitution , supra, at 131-32. 9 T he S enate adopted a resolution advising and consenting to the T reaty of 1797 w ith Tunis on condition that a certain article be suspended and renegotiated. The S enate later gave its advice and consent to the treaty and tw o o th er articles after they had b een renegotiated. C RS Study, supra , at 36. The Supreme C ourt has recognized the validity o f the practice, b u t has never delineated the o u te r limits o f the Senate’s pow er to condition its consent. See Fourteen Diamond Rings v. United States , 183 U.S. 176, 182 (1901) (Brown, J., concurring); Haver v. Yaker, 76 U.S. (9 W all.) 32, 35 (1869). 10 F o r exam ple. C ongress could, if it ch o se, bar aliens from our shores, but could not admit them under conditions w hich deprive them of constitutional rights such as the right to a fair trial. Wong Wing v. United States , 163 U .S. 228, 237 (1896). 11 S im ilarly, the Senate m ay not use its advice and consent pow er with respect to treaties to impose conditions affecting only the domestic asp ects o f a treaty. See Power Authority v. Federal Power Comm'n , 247 F.2d 538 (D.C. C ir.), vacated as moot , 355 U.S. 64 (1957). The S enate could not, for exam ple, condition its consent to the C onvention on a p rovision depriving the Secretaries of State and Commerce o f their authority u n d er the Fur Seal Act to adopt recom m endations o f the C om m ission. Such a condition would in effect am end the existing statutory discretion o f those Executive Branch officers, and could be accom plished only through plenary legislation. See INS v. Chadha, 462 U .S. at 9 52-54. 16 nullified by the Executive or by the Executive and the Senate combined. R eid v. Covert, 354 U.S. 1, 16-17 (1957). See also Geofroy v. Riggs, 133 U.S. 258, 267 (1890); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 620-21 (1871); Fourteen Diamond Rings v. United States, 183 U.S. at 183 (1901) (Brown, J. concurring). Thus, it is critical that the “JOINT AGENCY of the Chief Magistrate of the Union, and of two-thirds of the members of the Senate” 12 embodied in Article II, § 2, cl. 2, extends only to the making of treaties, i.e., the negotiation and agreement with other nations as to the legal obligations and rights of the parties. Nothing in the text of the Constitution or the deliberations of the Framers suggests that the Senate’s advice and consent role in the treaty-making process was intended to alter the fundamental constitutional balance between legislative authority and executive authority. In fact, the Framers included the Senate in the treaty-making process precisely because the result of that process, just as the result of the legislative process, is essentially a law that has “the effect of altering the legal rights, duties and relations of persons .. . outside the Legislative Branch.” INS v. Chadha, 462 U.S. at 952. Under the Constitution, only the President is given the “executive power,” and is charged with the specific responsibility to “take Care that the Laws be faithfully executed.” U.S. Const, art. II, §§ 1 and 3. It is indisputable that treaties are among the laws to be executed by the President,13 and that “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations,” which necessarily includes fulfilling obligations under international agreements or treaties, is part of the executive power. See United States v. Curtiss-W right Export Corp., 299 U.S. 304, 320 (1936); see also Haig v. Agee, 453 U.S. 280, 291-92 (1981); Chicago & Southern A ir Lines v. Waterman S.S. Corp., 333 U.S. 103, 190 (1948). The condition proposed by the staff of the Senate Foreign Relations Com­ mittee would strike at the heart of the President’s executive prerogatives. Absent such a condition, the United States representative to the Fur Seal Commission would be free to follow the directions of the President in evaluat­ ing the complex questions that come within the jurisdiction of the Commission. The proposed condition, however, would eliminate that discretion with respect to two issues likely to come before the Commission. Such a limitation on the discretion of the President’s representative — a limitation that takes effect only after the scope of the legal obligations of all parties has been agreed upon14 — 12 The Federalist No. 66, at 406 (A. H amilton) (C. R ossiter ed. 1961). 13 A rticle VI, cl. 2 o f the C onstitution provides in part that “all Treaties m ade, o r which shall be made, under the A uthority o f the U nited States, shall be the supreme Law o f the Land.” The President’s constitutional duty under A rticle II extends to treaties as w ell as to statutes and the C onstitution itself. See In re Neagle, 135 U.S. 1, 64 (1890); 1 Op. A tt’y Gen. 566, 570 (1822). 14 The condition is thus different from a reservation that w ould seek to lim it the legal authority o f the C om m ission to consider recom m endations for com m ercial fur seal kills within U nited States waters, or for Continued 17 would directly undercut the President’s authority “as the sole organ of the federal government in the field of international relations.” The Senate cannot constitutionally impose such a condition to its consent to ratification of a treaty, any more than it could consent to the appointment of an ambassador on the condition that the ambassador refrain from taking certain positions in negotiations or discussions with his designated country. See generally M yers v. United States, 272 U.S. at 126; 3 Op. Att’y Gen. 188, 189-90 (1837). C harles J. C ooper A ssistant Attorney General Office o f Legal Counsel 14 ( . . . continued) subsistence harvests on the Pribilof Islands. Such a reservation would be consistent w ith the constitutional separation o f pow ers, as it would be a leg itim ate exercise o f the treaty-m aking pow er to define the legal obligatio n s and rights o f the parties, prior to conclusion o f the treaty. O f course, any such reservation would have to be subm itted to the o th er parties fo r their agreem ent prior to taking effect. See supra note 6. 18

Write a legal research memo on the following topic.

Constitutionality of Proposed Conditions to Senate Consent to the Interim Convention on Conservation of North Pacific Fur Seals A proposed condition on the Senate’s consent to the Interim Convention on Conservation of North Pacific Fur Seals that dictates how the United States representative to the international N orth Pacific Fur Seal Commission must vote on certain matters before the Commission is unconstitutional because, rather than setting forth the Senate’s understanding o f the terms of the convention, it would interfere w ith the ability of the President and his appointee to execute faithfully the convention according to its terms. February 6, 1986 M em orandum O p in io n for th e Departm ent D of epu ty L e g a l A d v is e r , State You have asked for our views on the constitutionality of a proposed “condi­ tion” to the Senate’s consent to the Protocol Amending the Interim Convention on Conservation of North Pacific Fur Seals (Convention). The proposed condi• tion would require the United States representative to the North Pacific Fur Seal Commission (Commission) to vote against any recommendation before the Commission that would result in a commercial taking of fur seals within United States waters, and to abstain from voting on any recommendation that seeks to regulate taking of fur seals for subsistence purposes on the Pribilof Islands. For the reasons set forth below, we believe that this provision would impermissibly interfere with the President’s constitutional authority to execute the laws, and therefore would violate the constitutionally mandated separation of powers between the Legislative and Executive Branches. The Convention, originally signed in 1957, provides an international regime for the protection and management of fur seals. Parties to the Convention (Canada, Japan, the Soviet Union, and the United States) have agreed to coordinate scientific research programs and to cooperate in investigating the fur seal resources of the North Pacific Ocean. Art. II, § 1. The Convention specifically requires that the parties prohibit pelagic sealing (i.e., the killing of fur seals at sea). Art. III. The Convention also provides for establishment of the Commission, which is composed of one member from each party. The Commission is charged to: (a) formulate and coordinate research programs designed to achieve the objectives o f the Convention; 12 (b) recommend coordinated research programs to the parties for implementation; (c) study the data obtained from the implementation of coor­ dinated research programs; (d) recommend appropriate measures to the parties on the basis of findings obtained from the implementation of coordi­ nated research programs, including measures regarding the size and the sex and age composition of the seasonal commercial kill from a herd; and (e) recommend to the parties the methods of sealing best suited to achieve the objectives of the Convention. Art. V, § 2. Decisions and recommendations of the Commission must be unanimous, with each party having one vote. Art. V, § 4. The Interim Convention was extended by agreement of the parties in 1963, 1969, 1976, and 1980. On October 12, 1984, the parties signed another proto­ col extending the Convention until October 13, 1988, which the President has submitted to the Senate for its advice and consent.1 See Message from the President of the United States Transmitting the Protocol, signed at Washington on October 12, 1984, Amending the Interim Convention on Conservation of North Pacific Fur Seals between the United States, Canada, Japan, and the Soviet Union, S. Treaty Doc. No. 5, 99th Cong., 1st Sess. (1985). The staff of the Senate Committee on Foreign Relations, which is now reviewing the Protocol, has proposed that the Senate’s consent be subject to four “conditions.” The first of these, which you have asked us to review,2 would provide: That as a result of the decline of the fur seal population on the Pribilof Islands and other factors, whenever the North Pacific Fur Seal Commission, during the period of this Protocol, con­ siders recommendations to the Parties pursuant to Article V of the Convention, the United States Commissioner shall vote against any recommendation that would result in the taking of fur seals for commercial purposes on lands or waters within the jurisdiction of the United States. The Commissioner shall also abstain from voting on any recommendation that seeks to regu­ 1 In addition to extending the Convention, the parties agreed upon a “Statem ent o f C oncerns.” In that statem ent, the parties take note o f concerns over declines in the fur seal population, current econom ic conditions, and other problems o f fur seal m anagem ent and conservation. 2 The other three conditions provide that (1) the North Pacific fur seal herd shall be conserved, m anaged, and protected pursuant to U nited States dom estic laws to the extent such law s are m ore restrictive than provided for under the C onvention; (2) the Secretary o f C om m erce is to take appropriate steps under the C onvention to develop and im plem ent a program o f cooperative research in the Bering Sea ecosystem to determ ine the causes o f the fur seal population decline and to increase the health and viability of the Bering Sea ecosystem and the N orth Pacific fur seal population; and (3) the subsistence taking o f fur seals shall be at no cost to the governm ent You have not asked us to review these proposed conditions, and we therefore take no position as to their constitutionality. 13 late the taking of fur seals for subsistence purposes on the Pribilof Islands. Because of the interplay between the Convention and United States domestic law, the effect of this reservation would be to prohibit the commercial taking of fur seals on lands or waters within the jurisdiction of the United States,3 and to allow subsistence kills of fur seals on the Pribilof Islands only as permitted under United States domestic law.4 This proposed condition does not purport to set out the Senate’s understand­ ing of the scope of the international obligations imposed by the treaty or its domestic effects;5 nor does it purport to limit the obligations or rights of the parties under the treaty.6 Rather, it would limit the discretion of the United States representative, who is appointed by and answerable to the President, to implement the Convention in accordance with its agreed-upon terms. The condition thus reaches beyond the making of the treaty — i.e., delineating the legal obligations and rights of the parties under the agreement — to the actual execution of its terms. Because the execution of a treaty is clearly part of the President’s “executive power” under Article II of the Constitution, we believe 3 The killing o f fur seals w ithin United States w aters is effectively prohibited by the M arine Mammal P rotection A ct o f 1972, 16 U .S.C . §§ 1361 et seq , except as authorized under the Fur Seal Act o f 1966, 16 U .S.C . §§ 1151 et seq., w hich w as passed to im plem ent the Fur Seal Convention. Pursuant to § 107 o f the Fur Seal A ct, 16 U .S.C . § 1157, the Secretary o f State, with the concurrence o f the Secretary o f C om m erce, is authorized to accept o r reject any recommendation made by the C om m ission under A rticle V, and thereby to authorize com m ercial fu r seal kills. B ecause recom m endations o f the Com m ission m ust be unanim ous, the effect o f the reservation w ould be to preclu d e the C om m ission from m aking any recom m endation to the Secretary o f S tate fo r a com m ercial kill in U nited States w aters. 4 Indians, A leuts, and E skim os who live o n the coasts o f th e N orth Pacific Ocean are perm itted to take fur seals fo r subsistence purposes under the te rm s o f the Fur Seal Act and the M arine Mammal Protection Act. See 16 U .S.C . §§ 1152, 1379. 5 The S enate has often included “understandings” as part o f its consent to ratification. In general, such understandings interpret o r clarify the obligations undertaken by a party to the treaty, and do not change those oblig atio n s. For exam ple, the Senate F oreign Relations Com m ittee has recently approved the Genocide C onvention, subject to several understandings that set forth the Senate’s interpretation of certain key defin itio n s in the C onvention, and of the relationship betw een certain other provisions and obligations o f the U nited States un d er dom estic law. See S. E x . Rep. No. 2 , 99th Cong., 1st Sess. 1 6 ,2 1 -2 6 (1985). The Senate has included sim ilar understandings as p a rt o f its consent to a num ber o f other treaties. See generally C ongressional R esearch S ervice, Treaties a n d Other International Agreements: The Role o f the United States Senate, 98th C ong., 2d Sess. 11, 109-10 (Comm. Print prepared for the Senate Com m ittee on Foreign R elations, 1984) (C R S Study); S. Rep. No. 2 9 , 97th Cong., 1st Sess. 45 (1981) (SALT II Treaty); S. Rep. No. 47, 96th C ong., 1st Sess. 1 3-25 (1979) (P an am a Canal Treaty). 6 The S enate m ay, by “reservation” o r “ am endm ent,” condition its consent to a treaty on a revision or lim itation o f its term s. See generally Restatement o f the Law, Foreign Relations o f the United States (Tentative Draft No. 6) ( Restatement) § 3 1 3 ; CRS Study, supra, at 109-10. The resolution o f ratification for the G enocide C onvention, as reported by th e Senate Foreign R elations Com m ittee, would condition the S enate’s co n sen t to the C onvention on tw o su ch reservations: that the specific consent o f the U nited States is required befo re any dispute to which the U n ited States is a party may be submitted to the jurisdiction o f the International C ourt o f Justice, and that n o th in g in the C onvention requires or authorizes legislation or other action b y the U nited States “prohibited by th e C onstitution o f the United States as interpreted by the United S tates.” S. Ex. R ep. No. 2, supra, at 1 7-20. R eservations have also been attached by the Senate (or by the P resid en t) to ratificatio n o f numerous o th er treaties, including the Panam a Canal T reaty, see S Rep. No. 47, supra , at 2 4 -2 5 and the SA L T II Treaty, see S. Rep. No. 29, supra , at 44 -4 5 . See generally CRS Study, supra , at 10 9 -1 0 ; L. H enkin, Foreign Affairs and the Constitution 134 & n. 23 (1972). U nder international law, a substan tiv e revision to the treaty obligations (w hether characterized as a “reservation” or an “am endm ent”) m ust be accepted by the o th er contracting states. See Restatement, supra, § 313. 14 the proposed condition transgresses the “enduring” and “carefully defined limits” imposed by the Framers on the powers of the coordinate branches. See INS v. Chadha, 462 U.S. 919, 957-58 (1983). The powers of the national government were deliberately divided by the Framers among three coordinate branches because they considered the concen­ tration of governmental power to be the greatest threat to individual liberty. “Basic to the constitutional structure established by the Framers was the recognition that ‘[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.’” Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 57 (1982) (quoting The Federalist No. 47, at 300 (J. Madison) (H. Lodge ed. 1888)). Accordingly, “[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. at 951; see also Buckley v. Valeo, 424 U.S. 1, 122 (1976). The Supreme Court has long acknowledged that the partitions separating each branch of government from the others must be maintained inviolable if liberty is to be preserved. “The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.” INS v. Chadha, 462 U.S. at 951. The Framers recognized nonetheless that the peculiar nature of treaty-mak­ ing warranted a limited exception to the strict separation of powers between the branches because the negotiation and acceptance of treaties incorporates both legislative and executive responsibilities: [T]he particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. . . . The qualities elsewhere detailed as indis­ pensable in the management of foreign negotiations point out the executive as the most fit agent in those transactions; while the vast importance of the trust and the operation of treaties as laws plead strongly for the participation of the whole or a portion of the legislative body in the office of making them. 15 The F ederalist No. 75, at 450-51 (A. Hamilton) (C. Rossitered. 1961); see also The F ederalist No. 64, at 390-93 (J. Jay); The F ederalist No. 66, at 402-03 (A. Hamilton); see generally CRS Study, supra, at 25-28. Rather than vest either the Congress or the President with the sole power to make treaties, the Framers sought to accommodate the interests of both, providing that the President shall make the treaties, but subject to the “advice and consent” of the Senate.7 In practice, the Senate’s formal participation in the treaty-making process has been to approve, to approve with conditions, or to disapprove treaties negotiated by the Executive.8 Although the Senate’s practice of conditioning its consent to particular treaties is well-established, its authority is not unlim­ ited merely because it may withhold its consent.9 The general principle that Congress cannot attach unconstitutional conditions to a legislative benefit or program merely because it has authority to withhold the benefit or power entirely applies equally to the Senate’s advice and consent authority.10 For example, the requirement that the Senate consent to appointments of executive officers does not, by inference, empower the Senate to exert control over the removal of officers once approved. See M yers v. United States, 272 U.S. 52, 126 (1926).11 The Senate cannot use its advice and consent power to alter the constitutional distribution of powers or to impair constitutionally protected rights, any more than the President and the Senate together can override the requirements of the Constitution: [N]o agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution. * * * The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be 7 A rticle II, § 2, cl. 2 o f the Constitution provides in part that the President “shall have Power, by and with the A dvice and C onsent o f the Senate, to m ake Treaties, provided two thirds of the Senators present concur." 8 P resident W ashington attempted to co n su lt with the Senate, with lim ited success, on the negotiation of several treaties w ith the Indians. By 1816 th e practice had becom e so firm ly established that the Senate would grant its “advice and consent” to treaties alread y negotiated by the President or his representatives. See CRS Study, supra , at 3 4 -3 6 ; L. Henkio, Foreign Affairs and the Constitution , supra, at 131-32. 9 T he S enate adopted a resolution advising and consenting to the T reaty of 1797 w ith Tunis on condition that a certain article be suspended and renegotiated. The S enate later gave its advice and consent to the treaty and tw o o th er articles after they had b een renegotiated. C RS Study, supra , at 36. The Supreme C ourt has recognized the validity o f the practice, b u t has never delineated the o u te r limits o f the Senate’s pow er to condition its consent. See Fourteen Diamond Rings v. United States , 183 U.S. 176, 182 (1901) (Brown, J., concurring); Haver v. Yaker, 76 U.S. (9 W all.) 32, 35 (1869). 10 F o r exam ple. C ongress could, if it ch o se, bar aliens from our shores, but could not admit them under conditions w hich deprive them of constitutional rights such as the right to a fair trial. Wong Wing v. United States , 163 U .S. 228, 237 (1896). 11 S im ilarly, the Senate m ay not use its advice and consent pow er with respect to treaties to impose conditions affecting only the domestic asp ects o f a treaty. See Power Authority v. Federal Power Comm'n , 247 F.2d 538 (D.C. C ir.), vacated as moot , 355 U.S. 64 (1957). The S enate could not, for exam ple, condition its consent to the C onvention on a p rovision depriving the Secretaries of State and Commerce o f their authority u n d er the Fur Seal Act to adopt recom m endations o f the C om m ission. Such a condition would in effect am end the existing statutory discretion o f those Executive Branch officers, and could be accom plished only through plenary legislation. See INS v. Chadha, 462 U .S. at 9 52-54. 16 nullified by the Executive or by the Executive and the Senate combined. R eid v. Covert, 354 U.S. 1, 16-17 (1957). See also Geofroy v. Riggs, 133 U.S. 258, 267 (1890); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 620-21 (1871); Fourteen Diamond Rings v. United States, 183 U.S. at 183 (1901) (Brown, J. concurring). Thus, it is critical that the “JOINT AGENCY of the Chief Magistrate of the Union, and of two-thirds of the members of the Senate” 12 embodied in Article II, § 2, cl. 2, extends only to the making of treaties, i.e., the negotiation and agreement with other nations as to the legal obligations and rights of the parties. Nothing in the text of the Constitution or the deliberations of the Framers suggests that the Senate’s advice and consent role in the treaty-making process was intended to alter the fundamental constitutional balance between legislative authority and executive authority. In fact, the Framers included the Senate in the treaty-making process precisely because the result of that process, just as the result of the legislative process, is essentially a law that has “the effect of altering the legal rights, duties and relations of persons .. . outside the Legislative Branch.” INS v. Chadha, 462 U.S. at 952. Under the Constitution, only the President is given the “executive power,” and is charged with the specific responsibility to “take Care that the Laws be faithfully executed.” U.S. Const, art. II, §§ 1 and 3. It is indisputable that treaties are among the laws to be executed by the President,13 and that “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations,” which necessarily includes fulfilling obligations under international agreements or treaties, is part of the executive power. See United States v. Curtiss-W right Export Corp., 299 U.S. 304, 320 (1936); see also Haig v. Agee, 453 U.S. 280, 291-92 (1981); Chicago & Southern A ir Lines v. Waterman S.S. Corp., 333 U.S. 103, 190 (1948). The condition proposed by the staff of the Senate Foreign Relations Com­ mittee would strike at the heart of the President’s executive prerogatives. Absent such a condition, the United States representative to the Fur Seal Commission would be free to follow the directions of the President in evaluat­ ing the complex questions that come within the jurisdiction of the Commission. The proposed condition, however, would eliminate that discretion with respect to two issues likely to come before the Commission. Such a limitation on the discretion of the President’s representative — a limitation that takes effect only after the scope of the legal obligations of all parties has been agreed upon14 — 12 The Federalist No. 66, at 406 (A. H amilton) (C. R ossiter ed. 1961). 13 A rticle VI, cl. 2 o f the C onstitution provides in part that “all Treaties m ade, o r which shall be made, under the A uthority o f the U nited States, shall be the supreme Law o f the Land.” The President’s constitutional duty under A rticle II extends to treaties as w ell as to statutes and the C onstitution itself. See In re Neagle, 135 U.S. 1, 64 (1890); 1 Op. A tt’y Gen. 566, 570 (1822). 14 The condition is thus different from a reservation that w ould seek to lim it the legal authority o f the C om m ission to consider recom m endations for com m ercial fur seal kills within U nited States waters, or for Continued 17 would directly undercut the President’s authority “as the sole organ of the federal government in the field of international relations.” The Senate cannot constitutionally impose such a condition to its consent to ratification of a treaty, any more than it could consent to the appointment of an ambassador on the condition that the ambassador refrain from taking certain positions in negotiations or discussions with his designated country. See generally M yers v. United States, 272 U.S. at 126; 3 Op. Att’y Gen. 188, 189-90 (1837). C harles J. C ooper A ssistant Attorney General Office o f Legal Counsel 14 ( . . . continued) subsistence harvests on the Pribilof Islands. Such a reservation would be consistent w ith the constitutional separation o f pow ers, as it would be a leg itim ate exercise o f the treaty-m aking pow er to define the legal obligatio n s and rights o f the parties, prior to conclusion o f the treaty. O f course, any such reservation would have to be subm itted to the o th er parties fo r their agreem ent prior to taking effect. See supra note 6. 18

Write a legal research memo on the following topic.

Constitutionality of Proposed Conditions to Senate Consent to the Interim Convention on Conservation of North Pacific Fur Seals A proposed condition on the Senate’s consent to the Interim Convention on Conservation of North Pacific Fur Seals that dictates how the United States representative to the international N orth Pacific Fur Seal Commission must vote on certain matters before the Commission is unconstitutional because, rather than setting forth the Senate’s understanding o f the terms of the convention, it would interfere w ith the ability of the President and his appointee to execute faithfully the convention according to its terms. February 6, 1986 M em orandum O p in io n for th e Departm ent D of epu ty L e g a l A d v is e r , State You have asked for our views on the constitutionality of a proposed “condi­ tion” to the Senate’s consent to the Protocol Amending the Interim Convention on Conservation of North Pacific Fur Seals (Convention). The proposed condi• tion would require the United States representative to the North Pacific Fur Seal Commission (Commission) to vote against any recommendation before the Commission that would result in a commercial taking of fur seals within United States waters, and to abstain from voting on any recommendation that seeks to regulate taking of fur seals for subsistence purposes on the Pribilof Islands. For the reasons set forth below, we believe that this provision would impermissibly interfere with the President’s constitutional authority to execute the laws, and therefore would violate the constitutionally mandated separation of powers between the Legislative and Executive Branches. The Convention, originally signed in 1957, provides an international regime for the protection and management of fur seals. Parties to the Convention (Canada, Japan, the Soviet Union, and the United States) have agreed to coordinate scientific research programs and to cooperate in investigating the fur seal resources of the North Pacific Ocean. Art. II, § 1. The Convention specifically requires that the parties prohibit pelagic sealing (i.e., the killing of fur seals at sea). Art. III. The Convention also provides for establishment of the Commission, which is composed of one member from each party. The Commission is charged to: (a) formulate and coordinate research programs designed to achieve the objectives o f the Convention; 12 (b) recommend coordinated research programs to the parties for implementation; (c) study the data obtained from the implementation of coor­ dinated research programs; (d) recommend appropriate measures to the parties on the basis of findings obtained from the implementation of coordi­ nated research programs, including measures regarding the size and the sex and age composition of the seasonal commercial kill from a herd; and (e) recommend to the parties the methods of sealing best suited to achieve the objectives of the Convention. Art. V, § 2. Decisions and recommendations of the Commission must be unanimous, with each party having one vote. Art. V, § 4. The Interim Convention was extended by agreement of the parties in 1963, 1969, 1976, and 1980. On October 12, 1984, the parties signed another proto­ col extending the Convention until October 13, 1988, which the President has submitted to the Senate for its advice and consent.1 See Message from the President of the United States Transmitting the Protocol, signed at Washington on October 12, 1984, Amending the Interim Convention on Conservation of North Pacific Fur Seals between the United States, Canada, Japan, and the Soviet Union, S. Treaty Doc. No. 5, 99th Cong., 1st Sess. (1985). The staff of the Senate Committee on Foreign Relations, which is now reviewing the Protocol, has proposed that the Senate’s consent be subject to four “conditions.” The first of these, which you have asked us to review,2 would provide: That as a result of the decline of the fur seal population on the Pribilof Islands and other factors, whenever the North Pacific Fur Seal Commission, during the period of this Protocol, con­ siders recommendations to the Parties pursuant to Article V of the Convention, the United States Commissioner shall vote against any recommendation that would result in the taking of fur seals for commercial purposes on lands or waters within the jurisdiction of the United States. The Commissioner shall also abstain from voting on any recommendation that seeks to regu­ 1 In addition to extending the Convention, the parties agreed upon a “Statem ent o f C oncerns.” In that statem ent, the parties take note o f concerns over declines in the fur seal population, current econom ic conditions, and other problems o f fur seal m anagem ent and conservation. 2 The other three conditions provide that (1) the North Pacific fur seal herd shall be conserved, m anaged, and protected pursuant to U nited States dom estic laws to the extent such law s are m ore restrictive than provided for under the C onvention; (2) the Secretary o f C om m erce is to take appropriate steps under the C onvention to develop and im plem ent a program o f cooperative research in the Bering Sea ecosystem to determ ine the causes o f the fur seal population decline and to increase the health and viability of the Bering Sea ecosystem and the N orth Pacific fur seal population; and (3) the subsistence taking o f fur seals shall be at no cost to the governm ent You have not asked us to review these proposed conditions, and we therefore take no position as to their constitutionality. 13 late the taking of fur seals for subsistence purposes on the Pribilof Islands. Because of the interplay between the Convention and United States domestic law, the effect of this reservation would be to prohibit the commercial taking of fur seals on lands or waters within the jurisdiction of the United States,3 and to allow subsistence kills of fur seals on the Pribilof Islands only as permitted under United States domestic law.4 This proposed condition does not purport to set out the Senate’s understand­ ing of the scope of the international obligations imposed by the treaty or its domestic effects;5 nor does it purport to limit the obligations or rights of the parties under the treaty.6 Rather, it would limit the discretion of the United States representative, who is appointed by and answerable to the President, to implement the Convention in accordance with its agreed-upon terms. The condition thus reaches beyond the making of the treaty — i.e., delineating the legal obligations and rights of the parties under the agreement — to the actual execution of its terms. Because the execution of a treaty is clearly part of the President’s “executive power” under Article II of the Constitution, we believe 3 The killing o f fur seals w ithin United States w aters is effectively prohibited by the M arine Mammal P rotection A ct o f 1972, 16 U .S.C . §§ 1361 et seq , except as authorized under the Fur Seal Act o f 1966, 16 U .S.C . §§ 1151 et seq., w hich w as passed to im plem ent the Fur Seal Convention. Pursuant to § 107 o f the Fur Seal A ct, 16 U .S.C . § 1157, the Secretary o f State, with the concurrence o f the Secretary o f C om m erce, is authorized to accept o r reject any recommendation made by the C om m ission under A rticle V, and thereby to authorize com m ercial fu r seal kills. B ecause recom m endations o f the Com m ission m ust be unanim ous, the effect o f the reservation w ould be to preclu d e the C om m ission from m aking any recom m endation to the Secretary o f S tate fo r a com m ercial kill in U nited States w aters. 4 Indians, A leuts, and E skim os who live o n the coasts o f th e N orth Pacific Ocean are perm itted to take fur seals fo r subsistence purposes under the te rm s o f the Fur Seal Act and the M arine Mammal Protection Act. See 16 U .S.C . §§ 1152, 1379. 5 The S enate has often included “understandings” as part o f its consent to ratification. In general, such understandings interpret o r clarify the obligations undertaken by a party to the treaty, and do not change those oblig atio n s. For exam ple, the Senate F oreign Relations Com m ittee has recently approved the Genocide C onvention, subject to several understandings that set forth the Senate’s interpretation of certain key defin itio n s in the C onvention, and of the relationship betw een certain other provisions and obligations o f the U nited States un d er dom estic law. See S. E x . Rep. No. 2 , 99th Cong., 1st Sess. 1 6 ,2 1 -2 6 (1985). The Senate has included sim ilar understandings as p a rt o f its consent to a num ber o f other treaties. See generally C ongressional R esearch S ervice, Treaties a n d Other International Agreements: The Role o f the United States Senate, 98th C ong., 2d Sess. 11, 109-10 (Comm. Print prepared for the Senate Com m ittee on Foreign R elations, 1984) (C R S Study); S. Rep. No. 2 9 , 97th Cong., 1st Sess. 45 (1981) (SALT II Treaty); S. Rep. No. 47, 96th C ong., 1st Sess. 1 3-25 (1979) (P an am a Canal Treaty). 6 The S enate m ay, by “reservation” o r “ am endm ent,” condition its consent to a treaty on a revision or lim itation o f its term s. See generally Restatement o f the Law, Foreign Relations o f the United States (Tentative Draft No. 6) ( Restatement) § 3 1 3 ; CRS Study, supra, at 109-10. The resolution o f ratification for the G enocide C onvention, as reported by th e Senate Foreign R elations Com m ittee, would condition the S enate’s co n sen t to the C onvention on tw o su ch reservations: that the specific consent o f the U nited States is required befo re any dispute to which the U n ited States is a party may be submitted to the jurisdiction o f the International C ourt o f Justice, and that n o th in g in the C onvention requires or authorizes legislation or other action b y the U nited States “prohibited by th e C onstitution o f the United States as interpreted by the United S tates.” S. Ex. R ep. No. 2, supra, at 1 7-20. R eservations have also been attached by the Senate (or by the P resid en t) to ratificatio n o f numerous o th er treaties, including the Panam a Canal T reaty, see S Rep. No. 47, supra , at 2 4 -2 5 and the SA L T II Treaty, see S. Rep. No. 29, supra , at 44 -4 5 . See generally CRS Study, supra , at 10 9 -1 0 ; L. H enkin, Foreign Affairs and the Constitution 134 & n. 23 (1972). U nder international law, a substan tiv e revision to the treaty obligations (w hether characterized as a “reservation” or an “am endm ent”) m ust be accepted by the o th er contracting states. See Restatement, supra, § 313. 14 the proposed condition transgresses the “enduring” and “carefully defined limits” imposed by the Framers on the powers of the coordinate branches. See INS v. Chadha, 462 U.S. 919, 957-58 (1983). The powers of the national government were deliberately divided by the Framers among three coordinate branches because they considered the concen­ tration of governmental power to be the greatest threat to individual liberty. “Basic to the constitutional structure established by the Framers was the recognition that ‘[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.’” Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 57 (1982) (quoting The Federalist No. 47, at 300 (J. Madison) (H. Lodge ed. 1888)). Accordingly, “[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. at 951; see also Buckley v. Valeo, 424 U.S. 1, 122 (1976). The Supreme Court has long acknowledged that the partitions separating each branch of government from the others must be maintained inviolable if liberty is to be preserved. “The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.” INS v. Chadha, 462 U.S. at 951. The Framers recognized nonetheless that the peculiar nature of treaty-mak­ ing warranted a limited exception to the strict separation of powers between the branches because the negotiation and acceptance of treaties incorporates both legislative and executive responsibilities: [T]he particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. . . . The qualities elsewhere detailed as indis­ pensable in the management of foreign negotiations point out the executive as the most fit agent in those transactions; while the vast importance of the trust and the operation of treaties as laws plead strongly for the participation of the whole or a portion of the legislative body in the office of making them. 15 The F ederalist No. 75, at 450-51 (A. Hamilton) (C. Rossitered. 1961); see also The F ederalist No. 64, at 390-93 (J. Jay); The F ederalist No. 66, at 402-03 (A. Hamilton); see generally CRS Study, supra, at 25-28. Rather than vest either the Congress or the President with the sole power to make treaties, the Framers sought to accommodate the interests of both, providing that the President shall make the treaties, but subject to the “advice and consent” of the Senate.7 In practice, the Senate’s formal participation in the treaty-making process has been to approve, to approve with conditions, or to disapprove treaties negotiated by the Executive.8 Although the Senate’s practice of conditioning its consent to particular treaties is well-established, its authority is not unlim­ ited merely because it may withhold its consent.9 The general principle that Congress cannot attach unconstitutional conditions to a legislative benefit or program merely because it has authority to withhold the benefit or power entirely applies equally to the Senate’s advice and consent authority.10 For example, the requirement that the Senate consent to appointments of executive officers does not, by inference, empower the Senate to exert control over the removal of officers once approved. See M yers v. United States, 272 U.S. 52, 126 (1926).11 The Senate cannot use its advice and consent power to alter the constitutional distribution of powers or to impair constitutionally protected rights, any more than the President and the Senate together can override the requirements of the Constitution: [N]o agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution. * * * The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be 7 A rticle II, § 2, cl. 2 o f the Constitution provides in part that the President “shall have Power, by and with the A dvice and C onsent o f the Senate, to m ake Treaties, provided two thirds of the Senators present concur." 8 P resident W ashington attempted to co n su lt with the Senate, with lim ited success, on the negotiation of several treaties w ith the Indians. By 1816 th e practice had becom e so firm ly established that the Senate would grant its “advice and consent” to treaties alread y negotiated by the President or his representatives. See CRS Study, supra , at 3 4 -3 6 ; L. Henkio, Foreign Affairs and the Constitution , supra, at 131-32. 9 T he S enate adopted a resolution advising and consenting to the T reaty of 1797 w ith Tunis on condition that a certain article be suspended and renegotiated. The S enate later gave its advice and consent to the treaty and tw o o th er articles after they had b een renegotiated. C RS Study, supra , at 36. The Supreme C ourt has recognized the validity o f the practice, b u t has never delineated the o u te r limits o f the Senate’s pow er to condition its consent. See Fourteen Diamond Rings v. United States , 183 U.S. 176, 182 (1901) (Brown, J., concurring); Haver v. Yaker, 76 U.S. (9 W all.) 32, 35 (1869). 10 F o r exam ple. C ongress could, if it ch o se, bar aliens from our shores, but could not admit them under conditions w hich deprive them of constitutional rights such as the right to a fair trial. Wong Wing v. United States , 163 U .S. 228, 237 (1896). 11 S im ilarly, the Senate m ay not use its advice and consent pow er with respect to treaties to impose conditions affecting only the domestic asp ects o f a treaty. See Power Authority v. Federal Power Comm'n , 247 F.2d 538 (D.C. C ir.), vacated as moot , 355 U.S. 64 (1957). The S enate could not, for exam ple, condition its consent to the C onvention on a p rovision depriving the Secretaries of State and Commerce o f their authority u n d er the Fur Seal Act to adopt recom m endations o f the C om m ission. Such a condition would in effect am end the existing statutory discretion o f those Executive Branch officers, and could be accom plished only through plenary legislation. See INS v. Chadha, 462 U .S. at 9 52-54. 16 nullified by the Executive or by the Executive and the Senate combined. R eid v. Covert, 354 U.S. 1, 16-17 (1957). See also Geofroy v. Riggs, 133 U.S. 258, 267 (1890); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 620-21 (1871); Fourteen Diamond Rings v. United States, 183 U.S. at 183 (1901) (Brown, J. concurring). Thus, it is critical that the “JOINT AGENCY of the Chief Magistrate of the Union, and of two-thirds of the members of the Senate” 12 embodied in Article II, § 2, cl. 2, extends only to the making of treaties, i.e., the negotiation and agreement with other nations as to the legal obligations and rights of the parties. Nothing in the text of the Constitution or the deliberations of the Framers suggests that the Senate’s advice and consent role in the treaty-making process was intended to alter the fundamental constitutional balance between legislative authority and executive authority. In fact, the Framers included the Senate in the treaty-making process precisely because the result of that process, just as the result of the legislative process, is essentially a law that has “the effect of altering the legal rights, duties and relations of persons .. . outside the Legislative Branch.” INS v. Chadha, 462 U.S. at 952. Under the Constitution, only the President is given the “executive power,” and is charged with the specific responsibility to “take Care that the Laws be faithfully executed.” U.S. Const, art. II, §§ 1 and 3. It is indisputable that treaties are among the laws to be executed by the President,13 and that “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations,” which necessarily includes fulfilling obligations under international agreements or treaties, is part of the executive power. See United States v. Curtiss-W right Export Corp., 299 U.S. 304, 320 (1936); see also Haig v. Agee, 453 U.S. 280, 291-92 (1981); Chicago & Southern A ir Lines v. Waterman S.S. Corp., 333 U.S. 103, 190 (1948). The condition proposed by the staff of the Senate Foreign Relations Com­ mittee would strike at the heart of the President’s executive prerogatives. Absent such a condition, the United States representative to the Fur Seal Commission would be free to follow the directions of the President in evaluat­ ing the complex questions that come within the jurisdiction of the Commission. The proposed condition, however, would eliminate that discretion with respect to two issues likely to come before the Commission. Such a limitation on the discretion of the President’s representative — a limitation that takes effect only after the scope of the legal obligations of all parties has been agreed upon14 — 12 The Federalist No. 66, at 406 (A. H amilton) (C. R ossiter ed. 1961). 13 A rticle VI, cl. 2 o f the C onstitution provides in part that “all Treaties m ade, o r which shall be made, under the A uthority o f the U nited States, shall be the supreme Law o f the Land.” The President’s constitutional duty under A rticle II extends to treaties as w ell as to statutes and the C onstitution itself. See In re Neagle, 135 U.S. 1, 64 (1890); 1 Op. A tt’y Gen. 566, 570 (1822). 14 The condition is thus different from a reservation that w ould seek to lim it the legal authority o f the C om m ission to consider recom m endations for com m ercial fur seal kills within U nited States waters, or for Continued 17 would directly undercut the President’s authority “as the sole organ of the federal government in the field of international relations.” The Senate cannot constitutionally impose such a condition to its consent to ratification of a treaty, any more than it could consent to the appointment of an ambassador on the condition that the ambassador refrain from taking certain positions in negotiations or discussions with his designated country. See generally M yers v. United States, 272 U.S. at 126; 3 Op. Att’y Gen. 188, 189-90 (1837). C harles J. C ooper A ssistant Attorney General Office o f Legal Counsel 14 ( . . . continued) subsistence harvests on the Pribilof Islands. Such a reservation would be consistent w ith the constitutional separation o f pow ers, as it would be a leg itim ate exercise o f the treaty-m aking pow er to define the legal obligatio n s and rights o f the parties, prior to conclusion o f the treaty. O f course, any such reservation would have to be subm itted to the o th er parties fo r their agreem ent prior to taking effect. See supra note 6. 18

Write a legal research memo on the following topic.

S. 421, A Bill to Require the Comptroller General to Ascertain Increases in the Cost of Major Acquisition Programs of Civilian Agencies and to Limit the Expenditure of Federal Funds to Carry Out Those Programs Proposed legislation, if construed to give the Com ptroller General, a legislative officer, discre­ tionary authority to review Executive Branch acquisition programs and to cut off funds to those program s, w ould violate the constitutional principle o f the separation of powers. September 23, 1983 M em orandum O p in io n O f f ic e for th e of A s s is t a n t A t t o r n e y G e n e r a l , L e g is l a t iv e A f f a ir s This responds to your request for the comments of this Office on S. 421, which establishes a procedure for reporting cost overruns on major civil acqui­ sition programs and requires a cutoff of government funding whenever an over­ run exceeds 25 percent of the initial cost estimate. Section 2(a) of the bill states: The Comptroller General shall be responsible for ascertaining increases in the cost of each major civil acquisition program and compiling statistics on such increases. Such statistics shall be compiled from data submitted to the Comptroller General under section 3 and from data collected by the Comptroller General in the process of carrying out audits and reviews authorized by law. Section 3 of the bill authorizes the Comptroller General to require submission of reports on major civil acquisition programs carried out by various govern­ ment agencies.1The reports to the Comptroller General must include a descrip­ tion of the acquisition program, the initial cost estimate for the program, estimated total cost of the program as of the date of the report, the total amount of funds authorized, appropriated, and obligated, the estimated date of comple­ tion, reasons for any delay in completion, changes in the quantity or size of the acquisition program, the reasons for any actual or projected increase in the total 1 The term “m ajor c iv il acquisition p ro g ram ” is defined by the bill as any construction, acquisition or procurem ent program (not involving the D epartm ent o f D efense) that is financed entirely with federal funds and is estim ated to require an eventual to ta l expenditure exceeding $50,000,000. 162 cost by more than 25 percent over the initial cost estimate, and actions pro­ posed to control subsequent increases in costs. Section 4 requires that when the Comptroller General determines that the actual or estimated cost of a program exceeds the initial cost estimate by 25 percent or more, the Comptroller General shall transmit notice of this determination to the head of the agency involved and to Congress. No funds may be obligated or expended on the program after the date on which the agency receives such notice unless Con­ gress passes a law that provides for authority to obligate and expend funds. In our view, this procedure, as currently described by the bill, raises signifi­ cant constitutional questions. In particular, the bill would be a serious breach of the separation of powers if construed to give the Comptroller General discre­ tionary authority to review Executive Branch programs and, based upon his own independent determination, cut off funds to those programs. The President has sole constitutional responsibility for executing the laws adopted by Con­ gress. Article II of the Constitution states in part that “the Executive Power shall be vested” in the President and that the President “shall take Care that the Laws be faithfully executed.” By virtue of these provisions, all executive functions must be placed within the Executive Branch under the control and direction of the President. H um phrey’s Executor v. United States, 295 U.S. 602 (1935); M yers v. United States, 272 U.S. 52 (1926). Congress may not vest itself or its appointees with executive powers. Buckley v. Valeo, 424 U.S. 1 (1976). This fundamental principle of constitutional law would be breached if the Comptroller General were granted executive authority. The Comptroller Gen­ eral is not an Executive Branch official subject to Presidential control; rather, the Comptroller General acts as an advisory arm of Congress. The General Accounting Office is by statute made “independent of the executive depart­ ments,” 31 U.S.C. § 702(a), and Congress has proclaimed that the Comptroller General and the GAO are “part of the legislative branch of the Government.” Reorganization Act of 1949,63 Stat. 205; Reorganization Act of 1945,59 Stat. 616; see also United States Government Manual 1982/83, at 40; Corwin, Tenure o f Office and the Removal Power, 27 Colum. L. Rev. 354, 396 (1927). Therefore, under the above principles, Congress may vest the Comptroller General with authority to assist it in its lawmaking responsibilities, but it may not grant to the Comptroller General executive authority which is not subject to the control of the President. The Department of Justice has previously taken the position before Congress that “as a general principle of constitutional law the Congress may not vest in its agent, the Comptroller General, the Executive function of enforcing the law.” Hearings before a Subcomm. o f the House Comm, on Government O perations on H.R. 12171, 95th Cong., 2d Sess. 72 (1978) (testimony of Lawrence A. Hammond, Deputy Assistant Attorney General, Office of Legal Counsel). Vesting independent authority in the Comptroller General to require a cutoff of federal funding for acquisition programs would clearly constitute an attempt to lodge executive authority in an arm of Congress. Reviewing the progress of Executive Branch programs, making a judgment based upon standards estab­ 163 lished by Congress, and taking an action that purports to have binding legal effect on whether those programs may continue is unquestionably an exercise of executive authority. It would involve the Comptroller General deeply in the administration of the Executive Branch and give him substantial authority over the execution of the law. Therefore, such a procedure would breach the consti­ tutionally required separation of powers. In short, Congress can no more vest this authority in the Comptroller General than Congress could vest it in its own committees. See 41 Op. Att’y Gen. 230 (1955); 37 Op. Att’y Gen. 56 (1933); cf. INS v. Chadha, 462 U.S. 919 (1983).* This does not mean, of course, that Congress may not by law regulate procurement by the Executive Branch. For example, Congress certainly could require that an agency cease spending on an acquisition program if the agency determined that expenditures would exceed the initial estimate by 25 percent. The problem in this case is not the particular requirement that Congress wishes to impose, but rather the mechanism for enforcing that requirement. The requirement is within Congress’ power to impose, but its execution must remain within the Executive Branch under the control of the President. Therefore, if the statute were adopted as now drafted this Office would construe the statute, in order to be consistent with the Constitution, as giving the Comptroller General only a ministerial role in transmitting to Congress determinations made by executive agencies. Thus, funding could be cut off only if an executive agency determined in its report that expenditures would exceed the initial estimate by 25 percent or more. The Comptroller General would have no independent authority to make such a binding determination and would simply be required to transmit the agency’s report to Congress. However, if Congress wishes to proceed with this legislation, we urge that it be amended to make it clear that the Comptroller General’s role is purely ministerial and that the determinative reports will be made by the executive agencies involved. In particular, § 2 of the bill should be deleted and the bill should explicitly describe the timing and content of the reports required to be filed by the executive agencies. This Office objects to the bill unless it is amended to make this point clear. L a r r y L . S im m s D eputy Assistant Attorney General Office o f Legal Counsel * N O TE: Sub seq u en t to the issuance o f this O ffice o f Legal C ounsel opinion, the Suprem e Court determ ined in Bowsher v. Synar, 478 U .S . 714, 732-33 (1986), that the C om ptroller General is an agent o f C ongress, an d therefore cannot be vested with functions that “plainly entaii[] execution o f the law in constitu tio n al term s.’* 164

Write a legal research memo on the following topic.

Compliance of Direct Recording Electronic Voting Systems With Help America Vote Act and Americans With Disabilities Act A direct recording electronic voting system that produces a contemporaneous paper record, which is not accessible to sight-impaired voters but which allows sighted voters to confirm that their ballots accurately reflect their choices before the system officially records their votes, would be consistent with the Help America Vote Act and with title II of the Americans with Disabilities Act, so long as the voting system provides a similar opportunity for sight-impaired voters to verify their ballots before those ballots are finally cast. October 10, 2003 MEMORANDUM OPINION FOR THE PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL CIVIL RIGHTS DIVISION This memorandum responds to your Office’s request of August 12, 2003, for our opinion on whether a direct recording electronic (“DRE”) voting system may, consistent with the Help America Vote Act and the Americans with Disabilities Act, produce a contemporaneous paper record, not accessible to sight-impaired voters, that allows voters to confirm that their ballots accurately reflect their choices before the system officially records their votes. Based on the information you have provided us, we conclude that this proposed voting system would be consistent with both Acts, so long as the DRE voting system provides a similar opportunity for sight-impaired voters to verify their ballots before those ballots are finally cast.1 I. Many states are expanding the use in elections of DRE voting systems, which allow voters to enter their choices on an electronic screen in the voting booth. The DRE machines also allow a voter to confirm his ballot before it becomes an officially recorded vote by providing a “summary screen” listing all of the voter’s choices. After viewing the summary screen, the voter may either cast his ballot or else go back and make corrections. On newer DRE machines, an auditory component announces the ballot choices and the contents of the electronic 1 In so concluding, we are not sanctioning the use of any particular DRE voting system. Indeed, our understanding of how such systems will actually work is necessarily limited by the fact that most of them are still at the design stage. The addition (or elimination) of certain features, or their use in particular ways, may result in a voting system that does not provide a similar opportunity for disabled voters to access and participate in the voting system. As explained in greater detail below, such a system would be inconsistent with the Help America Vote Act. 169 Opinions of the Office of Legal Counsel in Volume 27 summary screen, allowing sight-impaired voters to verify and cast their ballots without assistance and in complete privacy. In response to concerns that the DRE voting systems may be vulnerable to tampering, the State of California is considering adopting DRE machines that would produce a contemporaneous paper record for each voter in addition to the electronic summary screen. See Letter for Joseph Rich, Voting Section Chief, Civil Rights Division, from Randy Riddle, Chief Counsel, California Secretary of State (July 8, 2003). This paper record would summarize the voter’s choices, and would be printed before the voter finally casts his ballot. In some cases, the paper record might also be preserved as a means to count votes in case of a recount or election contest. But in other cases, the paper record would serve solely to inform the voter of his choices before finally casting his ballot—serving the same function as the DRE electronic summary screen. II. Because the paper record produced by the DRE machines in question will not be produced in a format accessible to sight-impaired voters, you have asked for our opinion whether such a voting system would violate either the Help America Vote Act or title II of the Americans with Disabilities Act. We will address each statute in turn. A. Under the Help America Vote Act of 2002 (“HAVA”), all “voting systems” used in an election for federal office must meet specified federal requirements by January 1, 2006. See 42 U.S.C. §§ 15481–15485 (Supp. II 2003). One of these requirements is that voting systems “shall . . . permit the voter to verify (in a private and independent manner) the votes selected by the voter on the ballot before the ballot is cast and counted.” 42 U.S.C. § 15481(a)(1)(A)(i). DRE voting systems comply with this mandate by providing a final summary screen before the voter asks the machine to officially record his vote, as well as an auditory component that informs sight-impaired and illiterate voters of the summary screen’s contents. The production of a contemporaneous paper record is not necessary for the voting system to comport with section 15481(a)(1)(A)(i), but it does afford an additional means for a voter to verify his choices before casting his vote. HAVA further provides that “[t]he voting system shall . . . be accessible for individuals with disabilities, including nonvisual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters.” 42 U.S.C. § 15481(a)(3)(A) (emphasis added). Some may object that sight-impaired voters will have no opportunity to access or use the contemporaneous paper records 170 Direct Recording Electronic Voting Systems generated by DRE machines, as the paper record is not produced in Braille, and the DRE systems do not currently convert the paper into an audible format accessible to the sight-impaired. We do not, however, believe that this feature contravenes section 15481(a)(3)(A). What section 15481(a)(3)(A) requires is that each “voting system” be accessible to disabled persons in a manner that provides “the same opportunity” for access and participation that other voters have. We will assume for the sake of argument that the paper record produced by DRE machines is included as part of the “voting system” as defined in section 15481(b),2 although we note that this is not entirely clear and may depend on precisely what functions the paper record serves beyond providing a means for voters to verify their ballots before they are cast.3 But even if one indulges this assumption, the statutory issue would not be 2 Section 15481(b) provides: In this section, the term “voting system” means— (1) the total combination of mechanical, electromechanical, or electronic equipment (including the software, firmware, and documentation required to program, control, and support the equipment) that is used— (A) to define ballots; (B) to cast and count votes; (C) to report or display election results; and (D) to maintain and produce any audit trail information; and (2) the practices and associated documentation used— (A) to identify system components and versions of such components; (B) to test the system during its development and maintenance; (C) to maintain records of system errors and defects; (D) to determine specific system changes to be made to a system after the initial qualification of the system; and (E) to make available any materials to the voter (such as notices, instructions, forms, or paper ballots). 42 U.S.C. § 15481(b) (emphasis added). 3 Paper would appear not to be “mechanical, electromechanical, or electronic equipment.” While 42 U.S.C. § 15481(b)(1) includes in its reach all “documentation” used to “support” such equipment, we do not think it likely that a paper record whose sole function is to allow voters to verify their choices would be “used” for any of the purposes delineated in section 15481(b)(1)(A)–(D). Another possible category for such a paper record is section 15481(b)(2)(E), but it is important to emphasize that the “notices, instructions, forms, or paper ballots” referred to in section 15481(b)(2)(E) are not themselves part of the “voting system”; rather, the “practices and associated documentation” used to make these materials available to the voter are part of the voting system. A paper record that would also be used for auditing purposes in the event of a recount or election challenge is more likely to be part of the “voting system” in section 15481(b)(1), because it would be used to “count votes,” 42 U.S.C. § 15481(b)(1)(B), as well as “to maintain and produce any audit trail information,” id. § 15481(b)(1)(D). This threshold issue will depend on the precise facts of each voting system, so we leave it for another day and assume, arguendo, that the paper record can be pigeonholed into one of the nine categories listed in 42 U.S.C. § 15481(b)(1)–(2). 171 Opinions of the Office of Legal Counsel in Volume 27 whether the paper record is accessible to the sight-impaired, but whether the entire DRE voting system is accessible in a manner that provides disabled voters “the same opportunity for access and participation” that other voters enjoy. 42 U.S.C. § 15481(a)(3)(A). We must therefore evaluate a disabled person’s opportunity to participate in the voting system holistically, rather than scrutinizing his opportunity to access the system’s discrete components or parts. Furthermore, the use of the word “same” in section 15481(a)(3)(A) does not mean “identical”; if HAVA were read to require an identical opportunity for access and participation among non-disabled voters and voters with every type of disability, it would mandate the impossible. A serious disability will necessarily result in a voting experience that differs in some manner from that enjoyed by non-disabled voters. Nothing can be done, for example, to enable blind voters to visually interact with their ballot as sighted voters can. And we do not read HAVA to force all sighted persons to use voting technology with no visual dimension whatsoever (such as a voice-activated box that navigates voters through the ballot via a series of audible commands). That approach would not comply with section 15481(a)(3)(A) because such a voting system, in its efforts to produce “identical” opportunities among the sighted and the blind, would be entirely inaccessible to the hearing-impaired. What is more, equating the word “same” in section 15481(a)(3)(A) with “identical” would prohibit the very audio components in DRE voting systems that enable the sight-impaired to vote in privacy, because voters with other types of disabilities, such as the hearing-impaired, could not access these accommodations and would therefore lack an identical “opportunity” to participate in the voting system. We therefore construe the word “same” to mean “similar in kind, quality, quantity, or degree.” See American Heritage Dictionary of the English Language 1539 (4th ed. 2000). So long as a disabled person can access and participate in the essentials of a voting system—such as the ability to cast a ballot in privacy with a full opportunity to review the ballot before casting it—his opportunity to access and participate in the voting system is sufficiently “similar in kind, quality, quantity, or degree” to that enjoyed by nondisabled persons. The fact that the precise means by which he may access and participate in those essentials differs from those available to non-disabled persons does not deprive him of the “same opportunity” to participate in the voting system—if it did, no voting system could ever comply with HAVA. So long as DRE voting systems provide sight-impaired voters with audio equipment that enables them to verify their ballots before they are cast, we conclude that the provision of a contemporaneous paper record to assist sighted voters in verifying their ballots does not run afoul of HAVA.4 The essentials of such a voting system—including the ability to verify one’s ballot—are available to disabled and non-disabled voters alike, giving them the “same opportunity” for 4 This analysis assumes, of course, that the audio device, the summary screen, and the paper record are all reliable methods of verification. 172 Direct Recording Electronic Voting Systems access and participation under section 15481(a)(3)(A). Knowledge of the contents of the paper record is simply one of the means by which a sighted voter may verify his ballot before casting it, and DRE voting systems satisfy section 15481(a)(3)(A) so long as they provide a comparable means for sight-impaired voters to achieve this essential end. It is true that sighted voters will have more than one method by which they may verify their ballot before casting it: they can view both the electronic summary screen as well as the paper record produced by the DRE machine. Sight-impaired voters, by contrast, can only listen to an audio description of the summary screen, and have no independent way of knowing the contents of the paper record before casting their vote. Nevertheless, we do not believe that providing a greater number of methods by which sighted voters can verify their ballots deprives blind voters of the “same opportunity” for access and participation in the voting system, so long as the means available to such disabled persons are adequate to ensure similar access to and participation in the essentials of the voting system. The ability to verify one’s ballot before casting it is essential, cf. 42 U.S.C. § 15481(a)(1)(A)(i), but the availability of multiple techniques by which to do so is not. Disability accommodations often result in a greater range of methods by which non-disabled persons can accomplish their goals, yet such accommodations are not deemed to deny equal opportunities for disabled persons for that reason alone. Consider a building that provides both a set of stairs and a wheelchair ramp to its outdoor entrance. Non-disabled persons have more means to enter the building (they can use either the stairs or the ramp), while the wheelchair-bound person can use only the ramp. But no one would contend that such a building has deprived disabled persons of the “same opportunity” to access the building. That is because the essential requirement of access—the ability to get to the front door—is available to all. The means to achieve that end differ, and non-disabled persons have a greater number of options, but provision of the ramp suffices to provide disabled persons with a similar (though not “identical”) opportunity. So too with the DRE voting systems, as you have described them. B. Title II of the Americans with Disabilities Act (“ADA”) provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (2000). Only a “qualified individual with a disability” (“QID”)—defined as “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services 173 Opinions of the Office of Legal Counsel in Volume 27 or the participation in programs or activities provided by a public entity,” id. § 12131(2)—is protected by title II. The first task is to identify the relevant “service,” “program,” or “activity” at issue. This step is essential, because one cannot be a QID under section 12131(2) except in relation to a specific “service,” “program,” or “activity.” A title II complainant must show that he meets the essential eligibility requirements either to receive a “service,” or to participate in a “program” or “activity,” provided by a public entity. Without such a showing, there can be no violation of section 12132.5 A title II complainant could plausibly assert that the paper record itself is a “service” that blind individuals are eligible to “receive.” (The ADA does not define the term “services,” but we will assume arguendo that “services . . . provided by a public entity” encompass the paper record produced by the DRE voting system.) All voters, disabled or not, receive the paper record any time they vote on a DRE machine, so there is no need to explore whether accommodations beyond the realm of reason are necessary to make such persons “eligible” to receive the paper record. See 42 U.S.C. § 12131(2). This suffices to establish a sight-impaired voter as a QID under section 12131(2), but title II is not breached unless the sight-impaired person is either denied the benefits of the paper record, or is subjected to discrimination by a public entity. See id. § 12132. To the extent the paper record provides sighted voters with an opportunity to check their ballots, this does not deny a benefit to sight-impaired voters, because the DRE machines’ auditory component already provides a means for such voters to verify their ballots before casting them. But more importantly, given that all voters were fully capable of confirming their ballot before the advent of paperproducing DRE machines (either by viewing the summary screen, or using the machine’s audio capacity), we do not think the paper record provides any “benefit” at all in this regard. See American Heritage Dictionary 168 (defining “benefit” as “an advantage; help; aid”). We reject any construction of the term “benefit” in section 12132 that includes the provision of a means to accomplish a task that all persons could fully and effectively perform without such provision. In cases where the paper record is used by election officials for auditing purposes, this “benefit” of the paper record is not withheld from sight-impaired voters—all paper records, regardless of the voter’s disability status, would be used in the event of a recount or election challenge and would protect the integrity of that voter’s ballot. 5 At least one decision from a court of appeals has disclaimed any need to determine whether a government function can be characterized as a “service,” “program,” or “activity” when adjudicating title II claims. See Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir. 2002) (“Attempting to distinguish which public functions are services, programs, or activities, and which are not, would disintegrate into ‘needless hair-splitting arguments.’”) (citation omitted). For the reasons explained above, this approach cannot be reconciled with the text of title II. Nor can it be reconciled with Zimmerman v. Oregon Department of Justice, 170 F.3d 1169, 1174–76 (9th Cir. 1999), which Barden did not cite. 174 Direct Recording Electronic Voting Systems A sight-impaired voter could also claim that voting is a “program” or “activity” in which he is eligible to participate. See 42 U.S.C. § 12131(2). But however one defines the “benefits” of voting, we cannot see how the provision of a paper record denies these “benefits” to sight-impaired QIDs. Even if the paper record is utterly useless to sight-impaired voters, those voters still enjoy every “benefit” of voting that they would have had under the non-paper-producing DRE machines. One might contend that our understanding of the “benefits” of voting should vary depending on the technology employed, and that the “activity” of voting on a paper-producing DRE machine includes added “benefits” unknown to those voting on other equipment. But even under this approach, the only conceivable “benefit” that one might claim is denied to sight-impaired voters is the provision of multiple means by which to verify one’s ballot. For the reasons explained above, we do not regard this as a “benefit” under section 12132. The Attorney General has emphasized that section 12132 does not require a public entity to make each of its existing facilities accessible to individuals with disabilities when administering a service, program, or activity, see 28 C.F.R. § 35.150(a)(1) (2003), which confirms our view that the failure to make each and every means of access or participation available to disabled persons is not the “denial of a benefit” under section 12132. As to whether sight-impaired voters are “subject to discrimination” by a public entity that uses the DRE voting system: the DRE machines indeed treat sightimpaired voters differently, as they must engage an auditory component while voting, while sighted persons can simply look at the screen. Mere dissimilar treatment, however, does not by itself constitute “discrimination” under title II. All disability accommodations treat the disabled differently than non-disabled persons, but section 12132 does not prohibit the very accommodations mandated by the ADA. See 28 C.F.R. § 35.130(c) (“Nothing in this part prohibits a public entity from providing benefits, services, or advantages to individuals with disabilities”). Rather, to be “subjected to discrimination” under section 12132, a QID must not only be treated differently, but the discrimination must also leave the QID worse off than if the dissimilar treatment had never occurred. See Olmstead v. Zimring, 527 U.S. 581, 599–601 (1999) (concluding that unjustified institutional isolation of persons with disabilities is “discrimination” under section 12132 because it “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life” and “severely diminishes the everyday life activities of individuals”). We think that any dissimilar treatment of QIDs resulting from a public entity’s decision to use handicapped-accessible voting equipment falls into the category of permissible accommodation, rather than impermissible “discrimination,” under title II of the ADA. SHELDON BRADSHAW Deputy Assistant Attorney General Office of Legal Counsel 175

Write a legal research memo on the following topic.

Application of Record Destruction Requirements to Information Received From the National Instant Criminal Background Check System Under the laws governing destruction of background check information, the Bureau of Alcohol, Tobacco, Firearms, and Explosives—which routinely receives and retains certain information from the National Instant Criminal Background Check System whenever the NICS determines that an individual seeking to purchase a firearm may not lawfully receive a firearm—does not have to destroy that information if the NICS later overturns that determination. January 11, 2005 MEMORANDUM OPINION FOR THE CHIEF COUNSEL BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES The Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) routinely receives and retains certain information from the National Instant Criminal Background Check System (“NICS”) whenever the NICS determines that an individual seeking to purchase a firearm may not lawfully receive a firearm. You have asked whether, under the laws governing destruction of background check information, ATF must destroy that information if the NICS later overturns that determination. 1 We conclude that these laws do not require ATF to do so in such circumstances. I. The Brady Handgun Violence Prevention Act (“Brady Act”) required the Attorney General to “establish a national instant criminal background check system that any licensee may contact . . . for information, to be supplied immediately, on whether receipt of a firearm by a prospective transferee would violate [certain federal laws] or State law.” Pub. L. No. 103-159, § 103(b), 107 Stat. 1536, 1541 (1993). The Attorney General has carried out this mandate by establishing and maintaining the NICS within the Federal Bureau of Investigation (“FBI”). See 28 C.F.R. §§ 25.1 & 25.3 (2004). Another section of the Brady Act (§ 102(b) (codified at 18 U.S.C. § 922(t)(1) (2000))), requires federally licensed firearms dealers (“FFLs” or “licensees”) in most cases to contact the NICS before selling a firearm to a person. Upon receiving an inquiry, the NICS checks certain databases and in the ordinary course immediately issues one of two determinations: (1) a “proceed,” which indicates that the NICS has no information that the firearm transfer would be unlawful, and that the transfer is 1 See Memorandum for the Office of Legal Counsel, Department of Justice, from Stephen R. Rubenstein, Acting Chief Counsel, Bureau of Alcohol, Tobacco, and Firearms, Department of the Treasury, Re: Request for an Opinion (undated) (“ATF Opinion Request”). 17 Opinions of the Office of Legal Counsel in Volume 29 allowed, or (2) a “denied,” which indicates that the person is prohibited from receiving a firearm, and that the transfer is not allowed. See id.; 28 C.F.R. §§ 25.2 & 25.6(c)(1) (2004) (defining these terms and describing responses that the NICS may provide); National Instant Criminal Background Check System Regulation, 69 Fed. Reg. 43,892, 43,897 (July 23, 2004) (“Currently, approximately 74 percent of all transactions are completed immediately and approximately 92 percent are completed while the FFL is still on the telephone with the FBI NICS Section.”). In some cases, however, the NICS issues a “delayed” response, indicating that it has been unable to determine immediately whether or not the transaction may proceed, and that the inquiry remains “open.” 28 C.F.R. §§ 25.2 & 25.6(c)(1); see 69 Fed. Reg. at 43,900– 01 (to be codified at 28 C.F.R. § 25.9(b)(1)(ii)). But if the NICS has not issued a denial within three business days, the restriction on transfer by the licensee expires. See 18 U.S.C. § 922(t)(1)(B)(ii). The NICS may, however, continue to investigate the person and subsequently determine that the transfer should not have been permitted, in which case it issues a “delayed denial.” The FBI keeps records of all NICS background checks in an automated “audit log,” a chronological record of NICS activities that includes, among other information concerning an inquiry, the name of the potential gun purchaser. 28 C.F.R. § 25.9(b)(1) (2004); see 69 Fed. Reg. at 43,900–01 (to be codified at 28 C.F.R. § 25.9(b)(1)); see generally NRA v. Reno, 216 F.3d 122 (D.C. Cir. 2000) (discussing audit log and upholding it against various challenges). When a denial issues, the FBI, pursuant to regulations it has issued under the Privacy Act, 5 U.S.C. § 552a (2000), routinely forwards the audit log information for that inquiry to ATF’s Brady Operations Branch. “Routine Use C” of the FBI’s Privacy Act regulations for the NICS provides: If, during the course of any activity or operation of the system authorized by the regulations governing the system (28 CFR, part 25, subpart A), any record is found by the system which indicates, either on its face or in conjunction with other information, a violation or potential violation of law (whether criminal or civil) and/or regulation, the pertinent record may be disclosed to the appropriate agency/organization/task force . . . charged with the responsibility of investigating, prosecuting, and/or enforcing such law or regulation, e.g., disclosure of information from the system to the ATF . . . regarding violations or potential violations of 18 U.S.C. § 922(a)(6). (This routine use does not apply to the NICS Index.) Privacy Act of 1974; Notice of Modified System of Records, 63 Fed. Reg. 65,223, 65,226–27 (Nov. 25, 1998). Routine Use C was established pursuant to advice provided by this Office, see Brady Act Implementation Issues, 20 Op. O.L.C. 57, 59–61 (1996), and, as of July 2004, substantially the same language appears in the regulations implementing the NICS, 69 Fed. Reg. at 43,901 (to be codified at 28 18 Application of Record Destruction Requirements to Information From NICS C.F.R. § 25.9(b)(2)(i)); see also id. at 43,895 (“This change is consistent with Routine Use C in the NICS Privacy Act Notice”). When the NICS issues a standard denial (that is, within the three-day period that a firearms licensee must wait), ATF’s Brady Operations Branch forwards the audit log information to an ATF field office for investigation only if it meets certain criteria. However, when the NICS issues a delayed denial, the Operations Branch automatically forwards the information, because of the significant possibility that a person prohibited from receiving a firearm has already done so. In either case, once the audit log information arrives at the field office, an ATF agent opens a case file (of which the information becomes one part) and commences an investigation. Should ATF concur in the NICS’s conclusion, it may be necessary for ATF to retrieve firearms from the purchaser. In some instances, the NICS overturns a denial after the FBI has transferred to ATF the audit log information regarding that denial. The NICS might overturn a denial at any time and for a number of reasons. A change in state law can create a large number of overturned denials by eliminating a disability that had been based on state law; in addition, some firearms disabilities, such as certain restraining orders, are by their nature temporary, see 28 C.F.R. § 25.9(a). Sometimes new information indicates that the NICS’s initial denial was incorrect. Or the NICS may simply discover that it made an error. 2 The Brady Act provides an appeal and correction procedure by which a denied person may challenge a denial that he believes was in error. Id. § 103(g), 107 Stat. at 1542; 28 C.F.R. § 25.10 (2004). Several laws limit the information that may be retained regarding background checks in general and overturned denials in particular. First, section 922(t)(2) of title 18 requires that [i]f receipt of a firearm would not violate subsection (g) or (n) or State law, the system shall— (A) assign a unique identification number to the transfer; (B) provide the licensee with the number; and (C) destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer. (Emphasis added.) Second, an appropriations rider contained in section 615 of the Consolidated Appropriations Act, 2005, prohibits the use of federal funds for 2 See ATF Opinion Request at 1, 8. 19 Opinions of the Office of Legal Counsel in Volume 29 any system to implement subsection 922(t) of title 18, United States Code, that does not require and result in the destruction of any identifying information submitted by or on behalf of any person who has been determined not to be prohibited from possessing or receiving a firearm no more than 24 hours after the system advises a Federal firearms licensee that possession or receipt of a firearm by the prospective transferee would not violate [18 U.S.C. § 922(g) or § 922(n)], or State law. Pub. L. No. 108-447, § 615(2), 118 Stat. 2809, 2915 (2004). This rider was first enacted for fiscal year 2004. See Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, § 617(a)(2), 118 Stat. 3, 95. In regulations implementing section 922(t)(2) and the 2004 rider, the Attorney General has provided that, if the NICS has issued a “proceed,” the FBI must within 24 hours destroy “all identifying information submitted by or on behalf of the transferee” and must within 90 days destroy “[a]ll other information,” except the identification number assigned to the transfer and the date that the number was assigned. 69 Fed. Reg. at 43,901 (to be codified at 28 C.F.R. § 25.9(b)(1)(iii)). If the NICS has issued a denial, the FBI does not destroy the information. If a NICS inquiry remains open, the NICS may retain the information for up to 90 days. See id. Third, section 103(i) of the Brady Act (which has not been codified) limits the ability of the government to retain information in connection with the background check system that section 103(b) requires the Attorney General to establish, by providing: No department, agency, officer, or employee of the United States may— (1) require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof; or (2) use the system established under this section to establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions, except with respect to persons, prohibited by section 922(g) or (n) of title 18, United States Code or State law, from receiving a firearm. Brady Act § 103(i), 107 Stat. at 1542, reprinted in 18 U.S.C. § 922 note. In the case of an overturned denial, the NICS would be required to destroy the relevant audit log information (except for the identifying number and the date it was assigned). You have asked whether ATF must do likewise with its copy of 20 Application of Record Destruction Requirements to Information From NICS that audit log information, previously received from the NICS. You have explained that ATF wishes to maintain its copy in the relevant investigative case file so that it may have “complete records of [its] enforcement actions in case those actions are later challenged.” ATF Opinion Request at 9. For example, when ATF files criminal charges against a denied person or seizes a firearm from a denied person, and then the denial is overturned, that person may challenge ATF’s actions. You are concerned that, in such cases, “[w]ithout the records reflecting the initial NICS denial and the actions that flowed from the initial denial, it will be difficult for ATF to vigorously defend its actions.” Id. II. The laws discussed above do not require ATF to destroy the NICS audit log information in its case files concerning a denial that NICS has overturned. Section 922(t)(2)’s requirement that “the system” destroy “all records of the system” does not require ATF to destroy its copy of this information, because ATF is not and does not operate “the system” to which this section refers; nor are ATF’s case files “records of the system.” 18 U.S.C. § 922(t)(2). For similar reasons, the appropriations rider does not prevent ATF from keeping its files relating to overturned denials, because such files are not part of “any system to implement subsection 922(t).” 118 Stat. at 2915. Finally, under section 103(i) of the Brady Act, ATF’s retention of overturned denial files neither involves a “require[ment]” that any third party transfer records to a government facility nor creates a “system for . . . registration.” 107 Stat. at 1542. A. The text of section 922(t)(2) does not impose an obligation upon ATF with regard to the case files that you have described. That text obligates only “the system” to destroy records, and requires the system to destroy only “records of the system”: When “receipt of a firearm would not violate [certain federal laws] or State law,” the text states, “the system” must “assign a unique identification number,” “provide the licensee with the number,” and “destroy all records of the system with respect to the call . . . and . . . the person or the transfer.” 18 U.S.C. § 922(t)(2) (emphases added). In the context of section 922(t) and the closely related section 103 of the Brady Act, “the system” is a term of art referring to the NICS—“the national instant criminal background check system.” Id. § 922(t)(1). Section 922(t)(1) refers to the Attorney General’s notification of licensed federal firearms dealers, “under section 103(d) of the Brady . . . Act,” “that the national instant criminal background check system is established.” Id. (emphases added). It then prohibits such dealers from transferring a firearm to someone who is not a licensee “unless . . . before the completion of the transfer, the licensee contacts the national instant criminal 21 Opinions of the Office of Legal Counsel in Volume 29 background check system.” Id. § 922(t)(1)(A) (emphases added). It thereafter refers simply to “the system” three times. In context, the meaning must be that particular system named immediately beforehand; the shorthand makes no sense otherwise. That same shorthand phrase—“the system”—appears in the immediately following section 922(t)(2) at issue here, and it appears in the same context as in section 922(t)(1), referring to the system regarding transfers by firearms licensees. It must therefore be taken to have the same meaning. Later paragraphs of section 922(t) likewise use “the system” and the fuller phrase (“the national instant criminal background check system”) interchangeably. See id. § 922(t)(4)–(6). And no provision in section 922(t) uses “the system” with any apparent meaning other than to refer to the NICS. Likewise, various provisions of uncodified section 103, to which section 922(t) expressly refers, speak simply of “the system” when discussing requirements for the NICS, see Brady Act § 103(d), (e), (f) & (i), 107 Stat. at 1541–42, and the Attorney General’s regulations implementing section 103 define “System” as “the National Instant Criminal Background Check System,” 28 C.F.R. § 25.2. See Comm’r v. Lundy, 516 U.S. 235, 250 (1996) (“identical words used in different parts of the same act are intended to have the same meaning”) (internal quotation omitted). The statutory language and the regulations governing the NICS indicate that an entity is included within the NICS if and to the extent that it performs functions that Congress has assigned to “the system.” The “system” that Congress required to be established under the Brady Act is one “that any licensee may contact, by telephone or by other electronic means in addition to the telephone, for information, to be supplied immediately, on whether receipt of a firearm by a prospective transferee would” be unlawful. Brady Act § 103(b), 107 Stat. at 1541. It is “contact[ed]” by a licensee, “assign[s]” an identification number to the requested transfer, “provide[s]” that number to the licensee, and “notifie[s]” the licensee of a denial. 18 U.S.C. § 922(t)(1) & (2). Thus, the system includes the FBI’s “NICS Operations Center,” which “receives telephone or electronic inquiries from FFLs to perform background checks [and] makes . . . determination[s] . . . whether the receipt or transfer of a firearm would be in violation of Federal or state law.” 28 C.F.R. § 25.2. The system also includes state and local law enforcement Points of Contact—known as POCs—which act as “intermediar[ies] between an FFL and the federal databases,” “receive NICS background check requests from FFLs, . . . perform NICS inquiries, determine whether matching records provide information demonstrating that an individual is disqualified [for] possessing a firearm under Federal or state law, and respond to FFLs with the results of a NICS background check.” Id.; see also id. § 25.9(d) (describing which “records of state and local law enforcement units serving as POCs will be subject to the Brady Act’s requirements for destruction”); NRA, 216 F.3d at 138 (assuming that POCs are part of “the system” and subject to the Brady Act’s document destruction requirement except when the information is also subject to state law retention requirements). 22 Application of Record Destruction Requirements to Information From NICS ATF is not an element of the NICS and does not perform these functions on behalf of the NICS. ATF is not contacted by FFLs regarding prospective transfers; does not assign or provide the identification numbers; does not conduct the search of records to determine whether prospective transfers would be lawful; does not make those determinations; and does not notify FFLs of such determinations. Thus, section 922(t)(2), in providing that “the system shall” do certain things, including destroying certain records regarding approved transfers, imposes no obligation on ATF with regard to its case files. Furthermore, the materials in ATF’s case files are not “records of the system,” even if those files contain information that originated with the NICS and thus began as such records. That is why, as noted above, the NICS forwards the audit log information to ATF pursuant to regulations allowing certain disclosure of NICS records outside of that system and expressly referring to “disclosure of information from the system to the ATF”—not to movement of records within the system. 63 Fed. Reg. at 65,227 (emphasis added); see also 69 Fed. Reg. at 43,901 (to be codified at 28 C.F.R. § 25.9(b)(2)(i)). ATF field agents who receive the audit log information from the NICS (via the Brady Operations Branch) concerning denied transactions open independent case files, of which that information constitutes a part, and the agents use it in conducting their independent investigation. The contents of those files, including information obtained from outside ATF, thus become records of ATF, not of any originating agency or system of records. See Privacy Act of 1974; Systems of Records, 68 Fed. Reg. 3551, 3553 (Jan. 24, 2003) (describing ATF’s “Criminal Investigation Report System,” which is a system of ATF records for purposes of the Privacy Act, and which includes agents’ case files); ATF Opinion Request at 7 (“‘Case Files (Investigative Files)’ [are] ‘records . . . maintained at the field division as a result of investigations of violations of Federal alcohol, tobacco, and firearms and explosives statutes and other investigations required by law.’”) (quoting ATF Records Control Schedule, April 5, 2002). For this reason as well, section 922(t)(2) does not impose an obligation on ATF to destroy information in its case files concerning overturned denials. B. The appropriations rider, section 615(2), calls for a similar analysis and conclusion. That provision prohibits the use of federal funds for “any system to implement subsection 922(t) . . . that does not require and result in the destruction of any identifying information submitted by or on behalf of any person” not prohibited from possessing or receiving a firearm, within 24 hours after that determination is communicated to an FFL. The rider thus prohibits the use of funds for a “system” and expressly defines the “system” in question as one implementing section 922(t). The ATF case files in question, however, even if they constitute a single 23 Opinions of the Office of Legal Counsel in Volume 29 “system” in some sense, see 68 Fed. Reg. at 3553, are not designed “to implement subsection 922(t),” 118 Stat. at 2915. Thus, the rider does not restrict any use of funds by ATF with regard to those files or require ATF to destroy any information in those files upon the overturning of a denial by the NICS. As shown above, the only existing “system to implement subsection 922(t)” is the NICS, the system to which section 922(t) itself expressly and exclusively refers. ATF is not a part of the NICS. And even if the rider, by referring to “any” system, might be read to contemplate creation of another implementing system for section 922(t), we see no basis for concluding that the ATF case files are such a system or that the contents of the ATF files constitute records or information of such a thing. As you have explained, the purpose of the case files is to facilitate ATF’s independent investigations in furtherance of its law enforcement duties; they contain “documents relating to [an] investigation.” ATF Opinion Request at 7 (quoting ATF Records Control Schedule). Thus, the use of money in furtherance of ATF’s work is not use for a system to implement section 922(t). Nor do we read the rider to require the NICS to ensure the destruction of information possessed by ATF as a condition to the NICS’s use of appropriations. While the rider is not entirely clear whether it requires the destruction only of identifying information within the system or also requires NICS to reach out and ensure the destruction of identifying information that has properly been transferred outside of the system, the text seems to focus on the internal operations of the system and thus suggests the former. In our view, it simply creates a specific deadline for destroying certain records already subject to section 922(t)(2)’s destruction requirement; it does not impose a distinct and more far-reaching destruction requirement. This reading harmonizes well with section 922(t)(2), which already imposes a broad destruction requirement but lacks any deadline for such destruction. The backdrop against which Congress first passed the rider bolsters this understanding. The duration of the NICS’s retention of its audit log information concerning allowed transactions had been a subject of litigation and repeated regulatory revision, events of which Congress can be presumed to have been aware and which it likely intended to address. See NRA, 216 F.3d at 126 (noting revisions); id. at 127–28 (concluding that section 922(t)(2)(C) need not be read to require immediate destruction of information). Furthermore, at the time Congress first enacted the rider, the FBI had put Congress on notice that NICS information was being transferred, pursuant to Routine Use C, to entities such as ATF for law enforcement purposes. See 63 Fed. Reg. at 65,226–27. In view of this preexisting agency practice, had Congress wished to require the destruction of additional information—outside of “the system”—not already subject to section 922(t)(2)’s destruction requirement, one would expect the rider to have said so simply and directly. 24 Application of Record Destruction Requirements to Information From NICS Furthermore, the Attorney General, in his implementing regulations for the NICS, has likewise interpreted the rider as simply imposing a deadline for carrying out section 922(t)(2)’s destruction requirement. Within the section of the regulations concerning retention and destruction of records, he has provided that, for NICS audit log records regarding allowed transactions, “all identifying information submitted by or on behalf of the transferee will be destroyed within 24 hours.” 69 Fed. Reg. at 43,901 (to be codified at 28 C.F.R. § 25.9(b)(1)(iii)). In issuing this provision, he explained that “[t]he [rider] simply reduces the record retention time for records subject to the Brady Act’s record destruction requirement; it does not expand the records that are subject to the destruction requirement.” Id. at 43,898; see id. at 43,893 (the rider “addresses the time within which the NICS is required to destroy certain information”) (emphasis added). For the reasons we have given, even if the rider could reasonably be read otherwise, the Attorney General’s interpretation is reasonable, and it merits deference pursuant to Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984). See id. at 842–43 (holding that a court must uphold an agency’s interpretation of a statute that it administers unless “the intent of Congress is clear” as to the “precise question at issue” or the agency’s interpretation is “unreasonable”). 3 C. Lastly, neither paragraph of section 103(i) of the Brady Act prohibits ATF from maintaining audit log information in a case file in the event of an overturned denial. The first paragraph, section 103(i)(1), prohibits the government from “requir[ing] that any record or portion thereof generated by the system established under this section be recorded at or transferred” to a government facility. Brady Act § 103(i)(1), 107 Stat. at 1542, reprinted in 18 U.S.C. § 922 note. In our view, this paragraph forbids the government from requiring third parties, such as firearms dealers, to record certain NICS information at, or transfer it to, a governmental facility. It does not prohibit the government itself from recording that information. Interpreting section 103(i)(1) to do so would make it impossible to square this paragraph with other provisions of the Brady Act that authorize, and in 3 An agency’s interpretation of a particular statutory provision “qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” United States v. Mead Corp., 533 U.S. 218, 226–27 (2001). Congress has delegated authority to the Attorney General generally to make rules carrying the force of law in this area, see 18 U.S.C. § 926(a) (2000) (providing authority to promulgate rules regarding chapter of 18 U.S.C. that includes section 922), and also has required that he make rules with regard to the NICS, see Brady Act § 103(h), 107 Stat. at 1542 (requiring the Attorney General to “prescribe regulations to ensure the privacy and security of the information of the system established under this section”). In NRA, 216 F.3d at 126–27, the D.C. Circuit recognized the Attorney General’s authority under Chevron to interpret section 922(t), to which the rider expressly relates, and Chevron applies to an agency’s construction of its appropriations bill, see Kimberlin v. Dep’t of Justice, 318 F.3d 228, 231–32 (D.C. Cir. 2003). 25 Opinions of the Office of Legal Counsel in Volume 29 some cases require, the government to make records of NICS transactions. For example, section 103(g) requires the Attorney General to entertain challenges to, and to correct, certain “records of the system.” 107 Stat. at 1542. Section 103(i)(2) permits the NICS to establish a firearms registry “with respect to persons prohibited . . . from receiving a firearm.” Id. And 18 U.S.C. § 922(t)(2)(C) requires the NICS, for allowed transactions, to “destroy all records of the system . . . other than the identifying number and the date the number was assigned.” (Emphasis added.) These provisions, which contemplate the government’s requiring its employees to create records at a government facility, preclude reading section 103(i)(1) to impose a restriction on the government, as opposed to third parties. In addition, NICS checks could not even be processed without the system temporarily recording information about a proposed transaction. This is the interpretation to which the Attorney General has adhered in litigation and that the D.C. Circuit has found not unreasonable. See NRA, 216 F.3d at 131 (holding that paragraph (1) does not unambiguously prohibit the government from recording NICS information in an audit log, and crediting the Attorney General’s interpretation). For the reasons given, we concur in that interpretation. Thus, section 103(i)(1) does not prohibit ATF from maintaining audit log information in its case files. Section 103(i) next, in its second paragraph, provides that the government may not “use [the NICS] to establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions, except with respect to persons prohibited . . . from receiving a firearm.” Brady Act § 103(i)(2), 107 Stat. at 1542. As you have explained ATF’s actions, ATF is not implementing any “system for . . . registration.” The purpose of ATF’s retention of the audit log information in independent case files appears to be a bona fide effort to facilitate ATF’s carrying out of its law enforcement duties, not any purpose of “registration of firearms, firearms owners, or firearm transactions or dispositions.” Nor does a “system for . . . registration” appear at all likely to be a result of ATF’s practice. You have explained that the number of records in question—those involving “the small number of cases where denials were overturned and independent case files were opened”—represents only “a minute fraction of the audit log.” ATF Opinion Request at 11. Yet the audit log as a whole has been held by the D.C. Circuit (correctly in our view) not to be unambiguously prohibited by section 103(i)(2) because, among other things, it “represents only a tiny fraction of the universe of firearm owners” and, given that it only records requests for transfers, does not even indicate whether an “approved gun purchaser[] actually completed a transaction.” NRA, 216 F.3d at 131. It is true that information in the case files concerning an overturned denial will be retained for a much longer period than information in the audit log concerning an approved transaction—at the time of the NRA decision, the latter was retained for six months; now, it is retained for no more than 90 days or, in some cases, 24 hours—but given the small number of ATF records at issue, we see no reason to reach a contrary conclusion. 26 Application of Record Destruction Requirements to Information From NICS III. Accordingly, and based on our understanding of the facts as presented, we conclude that nothing contained in the laws discussed above prohibits ATF from retaining in its case files NICS audit log information concerning an overturned denial. Please let us know if we may provide any further assistance. C. KEVIN MARSHALL Acting Deputy Assistant Attorney General Office of Legal Counsel 27

Write a legal research memo on the following topic.

Use of Appropriated Funds to Provide Light Refreshments to Non-Federal Participants at EPA Conferences Light refreshments are “subsistence expenses” to which the prohibition of 31 U.S.C. § 1345 applies, and various statutory provisions that authorize the Environmental Protection Agency to hold meetings, conduct training, and provide grants do not satisfy the “specifically provided by law” exception to the prohibition. A violation of section 1345 does not, by its own force, also violate the Anti-Deficiency Act. April 5, 2007 MEMORANDUM OPINION FOR THE GENERAL COUNSEL ENVIRONMENTAL PROTECTION AGENCY You have asked whether the Environmental Protection Agency (“EPA”) may, consistent with 31 U.S.C. § 1345 (2000), use appropriations to provide light refreshments to non-federal participants at EPA conferences. We conclude that light refreshments, as you have described them, are “subsistence expenses” to which the prohibition of section 1345 applies, and that the various provisions you have cited that authorize the EPA to hold meetings, conduct training, and provide grants do not, in the words of section 1345, “specifically provide[]” for the EPA to use an appropriation for subsistence expenses for a meeting. You have further asked that, if we reach these conclusions, we determine whether a violation of section 1345 also would violate the Anti-Deficiency Act (“ADA” or “Act”), as codified at 31 U.S.C. § 1341(a)(1) (2000). Because the prohibition in section 1345 is not, in the words of that Act, “in an appropriation . . . for the expenditure or obligation,” id. § 1341(a)(1)(A), we conclude that a violation of section 1345 does not, by its own force, also violate the Anti-Deficiency Act. I. The EPA’s various statutory missions, you have explained, are furthered by the EPA’s providing opportunities for federal officials and employees and persons who are not federal employees to exchange information at meetings, including conferences. You have noted several sources of statutory authority, which we discuss below, under which the EPA holds such meetings and conferences. To facilitate these activities, the EPA wishes, when appropriate, to provide light refreshments—bottled water, coffee, bagels, and the like—to all participants, including those attendees who are not federal employees. Section 1345 provides as follows: 54 Use of Appropriated Funds to Provide Light Refreshments at EPA Conferences Except as specifically provided by law, an appropriation may not be used for travel, transportation, and subsistence expenses for a meeting. This section does not prohibit— (1) an agency from paying the expenses of an officer or employee of the United States Government carrying out an official duty; and (2) the Secretary of Agriculture from paying necessary expenses for a meeting called by the Secretary for 4-H Boys and Girls Clubs as part of the cooperative extension work of the Department of Agriculture. 31 U.S.C. § 1345. In 2005, the Comptroller General opined that the National Institutes of Health could pay for light refreshments at a government-sponsored conference because, among other things, “formal conferences” are not “meetings” under this section. National Institutes of Health—Food at Government-Sponsored Conferences, B-300826, 2005 WL 502825, at *4 (Mar. 3) (“NIH Opinion”). This Office, however, concluded in 2004 that a “fellowship program that would bring representatives from various countries to the United States” is a “meeting” under section 1345. Use of Appropriations to Pay Travel Expenses of International Trade Administration Fellows, 28 Op. O.L.C. 269, 269 (2004) (“ITA Opinion”). Focusing on the statutory text, we reasoned that such a fellowship program would “[i]n everyday usage . . . involve a ‘meeting’—indeed, several meetings.” Id. at 270. We distinguished, and questioned the reasoning of, a 1993 Comptroller General opinion interpreting the term “meeting” in light of the floor statements of a few members of Congress at the time of the statute’s original enactment, see id. at 273–74, and instead agreed with the Comptroller General’s pre-1993 interpretations, see id. at 271-72. In his NIH Opinion, the Comptroller General relied on his 1993 opinion, even while recognizing that it “effectively overrul[ed] prior [Government Accountability Office (“GAO”)] decisions that applied section 1345 to meetings and conferences other than assemblages and gatherings that private organizations sought to hold at government expense.” NIH Opinion, 2005 WL 502825, at *5 n.5. For the Executive Branch, this Office’s interpretation of the term “meeting” in the ITA Opinion necessarily continues to control notwithstanding the subsequent decision of the Comptroller General. 1 Because, under this interpretation, section 1345 applies in more instances than it would under the Comptroller General’s 1 The Comptroller General is an agent of Congress. Therefore, although his views often provide helpful guidance on appropriations matters and related issues, they do not bind the Executive Branch. See, e.g., Submission of Aviation Insurance Program Claims to Binding Arbitration, 20 Op. O.L.C. 341, 343 n.3 (1996). 55 Opinions of the Office of Legal Counsel in Volume 31 view, and given the different approaches by this Office and the GAO to interpreting section 1345, you have sought our views on the scope of that section’s reference to “subsistence expenses.” You have further asked whether, if light refreshments are “subsistence expenses,” various statutory provisions applicable to the EPA “specifically provide[]” for use of an appropriation for such expenses for a meeting; and whether, if section 1345 does prohibit such use of an appropriation, a violation of section 1345 also would violate the Anti-Deficiency Act. We answer each question in turn. II. The answer to your first question is not beyond debate, but the better reading is that the costs of light refreshments, such as you have described them, are “subsistence expenses” under section 1345. This conclusion rests on the text, context, and statutory history of section 1345, and is consistent with the views of the Comptroller General. Dictionaries define “subsistence” to mean “the irreducible minimum (as of food and shelter) necessary to support life.” Webster’s Third New International Dictionary 2279 (1993); see also Webster’s Ninth New Collegiate Dictionary 1176 (1984) (“the minimum (as in food and shelter) necessary to support life”); The American Heritage Dictionary of the English Language 1791 (3d ed. 1992) (“[a] means of subsisting, especially means barely sufficient to maintain life”). Thus, “food” of some sort is included within “subsistence.” These definitions do not obviously indicate a distinction between food that could be called a “meal” and food that could be called a light refreshment, and many sorts of food could be used for either purpose. In one sense, light refreshments fall more readily within the meaning of “subsistence” than do meals, as the former may be thought of as minimal (or marginal) resources for subsistence, in contrast to more substantial “meals.” On the other hand, one could view light refreshments as supplementing meals. But these definitions at least do not exclude light refreshments from the category of “subsistence” and do suggest the possibility of including them. Although simple dictionary definitions are thus inconclusive, the use of the term “subsistence” elsewhere in the U.S. Code in analogous circumstances, and particularly its use elsewhere in title 31, indicates that “subsistence” as used in section 1345 does include light refreshments. Under 31 U.S.C. § 326(b) (2000), the Secretary of the Treasury “may approve reimbursement to agents on protective missions for subsistence expenses authorized by law without regard to rates and amounts established under section 5702 of title 5,” which sets the per diem rates for federal employees on travel. Those per diem rates, in turn, incorporate a definition of “subsistence” as “lodging, meals, and other necessary expenses for the personal sustenance and comfort of the traveler.” 5 U.S.C. § 5701(3) (2000); see also 2 U.S.C. § 68b (2000) (incorporating this definition of “subsistence” from section 5701 for officers and employees of the Senate). The use of the phrase “other necessary expenses” after the word “meals” in section 5701’s definition of 56 Use of Appropriated Funds to Provide Light Refreshments at EPA Conferences “subsistence” indicates that “subsistence expenses” include more than just “meals” (or lodging). In context, the definition of the term “subsistence” permits the government to reimburse employees for the amount of food that a typical employee eats in one day, without reference to whether the employee consumes the food in two or three meals or, instead, two or three meals supplemented with a snack or two. Light refreshments are therefore fairly included within the terms of the residual category of “necessary expenses” for “personal sustenance and comfort” for which employees may be reimbursed and, by extension, fairly included within the broader term “subsistence expenses.” In addition, 31 U.S.C. § 3903(c) (2000) permits agencies to procure by contract “subsistence items.” See also 31 U.S.C. § 1501(a)(4)(B) (2000) (authorizing recording amounts as obligations of the United States government when supported by an order purchasing “perishable subsistence supplies”). And 31 U.S.C. § 1353(a) (2000) authorizes the Administrator of General Services to “prescribe by regulation the conditions under which an agency in the executive branch . . . may accept payment, or authorize an employee of such agency to accept payment on the agency’s behalf, from non-Federal sources for . . . subsistence.” We are aware of no authority suggesting that contracts for “subsistence items,” orders for “perishable subsistence supplies,” and acceptance of payment for “subsistence” under these sections can include meals, or the ingredients for meals—that is, food—yet somehow exclude food that is or may be used as light refreshments, nor do we see a basis for such a view. Thus, the use of the term “subsistence” in these provisions as well is better read to include light refreshments. The statutory history of section 1345 further indicates that “subsistence expenses” include the cost of light refreshments. What is now section 1345 was enacted as section 551 of title 31 in 1935. See Pub. Res. No. 74-2, 49 Stat. 19, 19 (1935) (codified at 31 U.S.C. § 551 (Supp. I 1935)). Section 551 provided, “[u]nless specifically provided by law, no moneys from funds appropriated for any purpose shall be used for the purpose of lodging, feeding, conveying, or furnishing transportation to, any conventions or other form of assemblage or gathering to be held in the District of Columbia or elsewhere.” Id. (emphasis added). According to the statutory findings, “numerous applications [were] being received from various organizations requesting lodging, food, and transportation for the purpose of holding conventions or meetings at Washington and elsewhere,” and “the expenditure of Government funds for such purposes is against the policy of Congress.” Id. (emphasis added). The terms “feeding” and particularly “food” include light refreshments, and when Congress in 1982 as part of recodifying title 31 moved section 551 to section 1345 and substituted the current language, including the term “subsistence,” see Pub. L. No. 97-258, sec. 1, § 1345, 96 Stat. 877, 925 (1982), it explained that such revisions should “not be construed as making a substantive change in the laws replaced,” id. sec. 4(a), 96 Stat. at 1067. Our conclusion regarding the term “subsistence expenses” under section 1345 also is consistent with the views of the Comptroller General regarding both section 57 Opinions of the Office of Legal Counsel in Volume 31 1345 and its predecessor. Most significantly, soon after Congress enacted section 551, the Comptroller General opined that, because of section 551, appropriations for the American Battle Monuments Commission “are not available for such items of expenditure as ‘transportation to and from monument sites’ and ‘light refreshments.’” Conventions and Gatherings—Lodging, Feeding, and Transporting, 14 Comp. Gen. 851, 852 (1935) (emphasis added). More recently, the Comptroller General has opined that section 1345 prohibits expenditures for “food and lodging.” National Highway Traffic Safety Administration—Travel and Lodging Expenses, 62 Comp. Gen. 531, 531–32 (1983) (“NHTSA Opinion”) (emphasis added). The Comptroller General also has used the term “subsistence” in related contexts without distinguishing between meals and light refreshments. For example, he has opined that authority in a statute to conduct a meeting “is not sufficient to authorize payment from appropriated funds of the attendees’ subsistence expenses,” by which he meant both “meals” and “refreshments.” Coast Guard—Coffee Break Refreshments at Training Exercise—Non-Federal Personnel, B-247966, 1993 WL 266761, at *2–3 (June 16). And he has said that the general rule that “the government may not pay, in addition to an employee’s regular compensation, per diem or subsistence expenses to a civilian employee at his official duty station” applies to expenditures “for coffee and doughnuts.” FBI Payment for Refreshments During Organized Crime Investigation, B-234813, 1989 WL 241372, at *2–3 (Comp. Gen. Nov. 9). Finally, the NIH Opinion, discussed above with regard to the meaning of “meeting” in section 1345, does not consider the term “subsistence expenses” in that section, so we have no reason to believe that these prior opinions have ceased to reflect the Comptroller General’s views. Several federal regulations do distinguish between light refreshments and meals—as does 5 U.S.C. § 5701, noted above. But, as our discussion of section 5701 indicated, our conclusion does not depend on equating the two, only on recognizing that both fall within the term “subsistence,” and none of the regulations of which we are aware distinguishes between the two in using the word “subsistence” or a similar statutory term. Rather, the regulations involve statutory language that gives regulatory agencies flexibility in a particular context. For example, the federal ethics regulations provide that “[m]odest items of food and refreshments such as soft drinks, coffee and donuts, offered other than as part of a meal” do not qualify as gifts. 5 C.F.R. § 2635.203(b)(1) (2006). One of the statutory authorities on which this regulation rests, 5 U.S.C. § 7353(a), (b)(1) (2000 & Supp. III 2003), states that employees of the Executive Branch may not “accept anything of value from a person,” except as permitted in “such reasonable exceptions as may be appropriate.” The statute, in other words (and the quoted regulations), provides for the “reasonable exceptions” that section 1345 does not acknowledge. Government regulations also provide that federal travelers at federal conferences need not deduct the cost of government-furnished light refreshments from their per diem claims, but do need to deduct the cost of meals. See 41 C.F.R. § 301-74.21(b) (2006). But those regulations rest on the General Services Admin- 58 Use of Appropriated Funds to Provide Light Refreshments at EPA Conferences istration’s discretion to reimburse federal employees either on a per diem basis, or on an “actual and necessary expenses” basis, or with any combination of the two. See 5 U.S.C. § 5702(a)(1) (2000). Similarly, the apparently common practice among federal agencies of allowing attendees at certain events to partake of light refreshments rests on specific authority under the Government Employees’ Incentive Awards Act, not on any premise that light refreshments are not subsistence expenses. See 5 U.S.C. § 4503 (2000) (permitting an agency head to “incur necessary expense for the honorary recognition of, an employee”). Nor could this practice support a distinction between “light refreshments” and “meals” for purposes of interpreting “subsistence” (such that the term would include meals yet not light refreshments), because meals also are served at such receptions. As the Comptroller General has explained, “[t]he provision of food or refreshments at an awards ceremony is an exception to the general rule prohibiting an agency from feeding its employees at taxpayer expense.” Defense Reutilization and Marketing Service Awards Ceremonies, B-270327, 1997 WL 108952, at *2 (Mar. 12) (emphasis added). In sum, although it is undoubtedly true that, as a matter of degree, food when served for “meals” is more significant than food served for “light refreshments,” section 1345 in its application to “subsistence expenses” does not draw this distinction between different uses of food. We therefore conclude that the prohibition on “the use of appropriated funds for subsistence expenses” in section 1345 applies to light refreshments as well as meals. III. Section 1345’s prohibition on the use of an appropriation for subsistence expenses applies “[e]xcept as specifically provided by law.” You have directed us to eight sections of the U.S. Code as possibly satisfying this exception with regard to light refreshments for persons at conferences who are not federal employees. Among these are section 103 of the Clean Air Act, 42 U.S.C. § 7403 (2000); section 104 of the Clean Water Act, 33 U.S.C. § 1254 (2000); and the Government Employees Training Act, 5 U.S.C. § 4110 (2000). In an appendix, we have identified all eight sections, as well as the particular subsections and text in them that most bear on this question; here, it is sufficient to summarize the relevant text as authorizing various sorts of programs, training, and grants that may include private parties and state and local governments. Four of them generally authorize the EPA to fund the training of non-federal persons (see 42 U.S.C. § 7403 (2000), id. § 9604(k)(6) (2000 & Supp. III 2003), id. § 9660 (2000), and 33 U.S.C. § 1254 (2000)) and the remainder simply allow the EPA to encourage or fund research, where appropriate. Besides authorizing such actions, however, these provisions say nothing in particular about the “travel, transportation, and subsistence” expenses that section 1345 regulates. As we explain, these general authorizations do not suffice to authorize an exception from section 1345. 59 Opinions of the Office of Legal Counsel in Volume 31 In the context of section 1345, the word “specifically” is best read to mean “with exactness and precision” or “in a definite manner.” Webster’s Third New International Dictionary 2187 (1993). A general authorization of a meeting is not an exact, precise, or definite authorization of an agency to use appropriated funds for “travel, transportation, and subsistence” expenses. The structure and context of section 1345 confirm this understanding. A federal agency that expends appropriated funds on a meeting must derive its authority to spend that money from some statutory source. If every statute that authorized the federal funding of meetings attended by non-federal participants also permitted the expenditure of funds for the purposes prohibited by section 1345, then section 1345 never would prohibit expending funds for “travel, transportation, and subsistence” for lawful meetings. While it may not be possible to detail a general rule for exactly how “specific[]” is specific enough, it is thus clear that general authority to fund a meeting is insufficient. Our ITA Opinion supports the above interpretation. The Department of Commerce had not identified any statute that it thought would provide specific authority under section 1345 for the expenses of the proposed fellowship program. See ITA Opinion, 28 Op. O.L.C. at 275. We recognized that it had cited as “general authority” 22 U.S.C. § 2351(b) (2000), which authorizes the President to “make arrangements to find, and draw the attention of private enterprise to, opportunities for investment and development in less-developed friendly countries and areas,” but we pointed out that the Department of Commerce did “not contend . . . that section 2351 speaks with sufficient specificity to satisfy section 1345.” ITA Opinion, 28 Op. O.L.C. at 275 n.4. This reading also is consistent with a series of Comptroller General decisions under section 1345 and its predecessor. Most notably, the Comptroller General opined in 1979 that, “[b]y using the word ‘specifically,’ Congress indicated that authority to pay travel and subsistence expenses of non-government employees attending conventions or other assemblages should not be inferred from other laws but rather that there should be a definite indication in an enactment that the payment of such expenses was contemplated, intended and authorized.” Mine Safety and Health Administration—Payment of Travel Expenses at Seminars, B193644, 1979 WL 12354, at *2 (Comp. Gen. July 2) (emphasis added). Such a requirement “is not satisfied merely by showing that an agency has legislative authority to hold conventions or other assemblages” or “authority to train private individuals.” Id. The Comptroller General therefore reasoned that a statute that authorized an agency to “expand programs for the education and training” of mine operators and agents did not speak with sufficient specificity to establish an exception to section 1345. Id. at *1 (internal quotation marks omitted). Similarly, in the 1935 opinion discussed above in Part II, the Comptroller General opined that a statute authorizing “every expenditure requisite for or incident to the work of the American Battle Monuments Commission” did not provide specific authority for purposes of the identically phrased exception in section 551, 60 Use of Appropriated Funds to Provide Light Refreshments at EPA Conferences the predecessor of section 1345: “General terms such as [those] quoted . . . are not sufficient to make an appropriation available for such purposes.” Conventions and Gatherings, 14 Comp. Gen. at 851, 852 (internal quotation marks omitted in first quotation). In the 1983 NHTSA Opinion, also discussed above, he likewise opined that a statute permitting the Secretary of Transportation to “cooperate with appropriate State and local officials to the greatest extent possible consistent with the purposes of this subsection” did not speak with sufficient specificity: “[T]here is a distinction between the general authority to hold a conference and the specific authority to overcome the prohibition in 31 U.S.C. § 1345.” 62 Comp. Gen. at 531–32 (internal quotation marks omitted in first quotation). And in 1975, the Comptroller General opined that a statute permitting an agency, for various purposes, to “conduct, and encourage, cooperate with, and render financial and other assistance to appropriate public (whether federal, state, interstate, or local) authorities, agencies, and institutions, private agencies and institutions, and individuals” did not provide the specific authority for an exception to section 551. Use of Appropriated Funds in Connection with National Solid Waste Management Association Convention, B-166506, 1975 WL 8253, at *1–2 (July 15) (internal quotation marks omitted). Although he acknowledged that such a statute may give the agency “the authority to hold conventions,” the statute did not permit “the payment from appropriated funds of transportation and lodging expenses of state officials or employees to attend such conventions.” Id. at *3. The Comptroller General has twice found sufficient specificity, in statutes requiring (rather than merely authorizing) a conference, and requiring it to have wide representation. In 1991, he opined that the Commission on Interstate Child Support could spend appropriated funds on transportation and subsistence expenses of conference invitees under a statute requiring that it hold one or more national conferences on child support reform, directing that it ensure wide representation at the conference, and permitting the Commission to adopt such rules and procedures as it deemed appropriate. Commission on Interstate Child Support—Payment of Lodging and Meal Expenses of Certain Attendees at the National Conference on Interstate Child Support, B-242880, 1991 WL 71686, at *2–3 (Mar. 27). According to the Comptroller General, “The main difference between [such a] conference and the other section 1345 cases is between a general grant of authority that may be broad enough to permit an agency to hold a conference as opposed to a specific statutory directive to hold a conference in order to implement the law.” Id. at *2. This 1991 opinion relied on a 1955 precedent stating that “[t]he express provision in the enabling act that the White House Conference on Education be ‘broadly representative of educators and other interested citizens from all parts of the Nation,’ when considered in conjunction with the provision authorizing the appropriation of such sums as the Congress determines to be necessary for the ‘administration’ of that act, is considered to be sufficiently broad to authorize the appropriation of funds for necessary travel expenses.” Appropriations—Availability—Travel Expenses of Delegates to White House Conference on Education, 35 Comp. Gen. 129, 132 (1955). Even assuming 61 Opinions of the Office of Legal Counsel in Volume 31 that these decisions are correct, which we have no occasion to consider, they do not apply here because none of the statutes that you have cited requires that a conference be held or that any conference have wide representation. Similarly, the Comptroller General in his 1983 NHTSA Opinion declined to apply the 1955 opinion where the statutory provision at issue did “not mandate that a conference be held,” 62 Comp. Gen. at 532, a view he reiterated in 1991, see Commission on Interstate Child Support, 1991 WL 71686, at *1 (distinguishing the workshops in the NHTSA Opinion because the act in question “did not mandate that workshops be held”). IV. Finally, given our answers in Parts II and III to your questions regarding light refreshments and section 1345, you have asked whether a violation of that provision also violates the Anti-Deficiency Act, codified at 31 U.S.C. §§ 1341– 1342, 1349–1351, 1511–1519 (2000). We conclude that a violation of section 1345 does not, by that fact alone, also violate the ADA, because section 1345 is not part of an appropriation. This conclusion rests on the text, structure, and history of the Act, which together establish that the Act proscribes violations of limits in the relevant appropriation, not violations of all statutory law. This conclusion should not be construed as in any way condoning violations of section 1345, and we do not consider other sanctions that may apply to a violation of section 1345. 2 The provision of the ADA primarily at issue prohibits “[a]n officer or employee of the United States Government or of the District of Columbia government” from “mak[ing] or authoriz[ing] an 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). A knowing and willful violation is subject to a fine of up to $5,000 and up to two years in prison. Id. § 1350. The ADA also requires reporting to the President and Congress violations of section 1341(a), which provide grounds for administrative discipline including removal 2 Congress has ample authority and means to impose penalties, whether derived from the ADA or not, for violating statutory restrictions on spending such as section 1345. Among other things, it may incorporate into such a statute by reference the penalties of the ADA, or it may incorporate the statute by reference into a given appropriation, thus making the ADA apply to a violation pursuant to our reasoning below and in our 2001 ADA opinion discussed below. “[A] statute may refer to another and incorporate part or all of it by reference.” Norman J. Singer, 2B Sutherland on Statutes and Statutory Construction § 51.07, at 267 (6th ed. 2000). “There are two general types of reference statutes: statutes of specific reference and statutes of general reference.” Id. at 269. The former type “refers specifically to a particular statute by its title or section number.” Id. The latter type “refers to the law on the subject generally,” for example by stating that “contracts made under the statute are to be made ‘in the manner now provided by law.’” Id. at 269–70. We do not have before us any particular appropriation (which might be said, depending on its text, to incorporate section 1345 through an internal cap or condition), nor does section 1345 by its terms either specifically or generally incorporate the penalties of the ADA. 62 Use of Appropriated Funds to Provide Light Refreshments at EPA Conferences from office. Id. §§ 1349, 1351. You have stated that, if we conclude that a violation of section 1345 violates the ADA, you would “report . . . immediately” pursuant to this provision any violations that may have resulted from the legal uncertainty. (Our conclusion that the ADA does not apply to require reporting a violation of section 1345 says nothing, of course, about the advisability of EPA’s doing so, to the President and, with appropriate permission, the Congress.) An officer or employee most clearly would violate the ADA if an appropriations statute appropriated $X for some account or object, and he spent more than $X—in other words, “excess” or “deficiency” spending. That is the scenario that nearly all judicial interpretations of the Act have considered. In Hooe v. United States, 218 U.S. 322 (1910), for example, the Supreme Court noted that an agency would have violated an earlier version of the Act had it incurred an obligation for the rental of a building in excess of an appropriation authorizing a certain amount of moneys “in full compensation for” that rental in a particular fiscal year. Id. at 332; see also Sutton v. United States, 256 U.S. 575, 580–81 (1921) (holding under earlier version of Act that the Secretary of War did not have, among other things, “authority . . . to obligate the Government” to pay more for improving a channel than Congress had appropriated for that purpose); Bradley v. United States, 98 U.S. 104 (1878) (similar to Hooe); Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 430 (1990) (citing sections 1341 and 1350 for the proposition that it is a crime to “knowingly spend money in excess of that appropriated”); Hercules, Inc. v. United States, 516 U.S. 417, 427 (1996) (“The [ADA] 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.”). And the Federal Circuit has noted that a federal agency could not fund certain entitlements beyond the amount that Congress had appropriated for them, because the ADA “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 (1995); see also E. Band of Cherokee Indians v. United States, 16 Cl. Ct. 75 (1988) (similar). In 2001, this Office faced the question whether the ADA extended to a different scenario: an expenditure of funds that did not exceed the applicable appropriated amount but did violate certain kinds of restrictions contained in the appropriation—namely, a “condition” (which “would prohibit an agency from expending any of its funds for a particular purpose”) or an “internal cap” (which “would prohibit an agency from expending any of its funds in excess of a designated amount for a particular purpose”). Applicability of the Antideficiency Act to a Violation of a Condition or Internal Cap Within an Appropriation, 25 Op. O.L.C. 33, 33–34 (2001) (“2001 ADA Opinion”). We gave “a narrow definition” to these categories, excluding from our consideration, for example, “ceilings within particular appropriations acts,” which would apply to all funds appropriated by an act. Id. at 34. As an example of an “internal cap,” we quoted an appropriation act for the Department of Justice that, in a single paragraph, appropriated approxi- 63 Opinions of the Office of Legal Counsel in Volume 31 mately $1 billion for “salaries and expenses for the Border Patrol program, the detention and deportation program, the intelligence program, and the inspections program” and “[p]rovided . . . [t]hat none of the funds available to the [Immigration and Naturalization Service] shall be available to pay any employee overtime pay in an amount in excess of $30,000” in a particular period. Id. (internal quotation marks omitted). We concluded that to violate a “condition” or “internal cap” in an appropriation would be to “make or authorize an 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). We acknowledged that one might read this text (together with the language of other parts of the Act) as simply barring “those expenditures that exceed the total amount of funds Congress has provided within a particular account,” 2001 ADA Opinion, 25 Op. O.L.C. at 36—that is, as mandating “no spending ‘after funds are exhausted,’” id.—but reasoned that “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 [ADA] to enforce its appropriations power by exercising control over the purposes for which agencies may use their appropriated funds,” id. at 37 (emphasis in original). We relied on two primary arguments to conclude that Congress had so intended with regard to conditions and internal caps. First, we stated that the word “available” in section 1341(a)(1)(A) “is modified by the phrase ‘for the expenditure or obligation.’” Id. at 37–38; see also id. at 35, 36, 48 (indicating this view by adding emphases to statutory text). We thought that the inclusion of this phrase “suggests” an intent to incorporate a “legal permissibility” component, because “[i]f 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.’” Id. at 37–38. Congress’s use of additional language, we reasoned, “suggests that the term ‘available’ should be construed more broadly to encompass the concept of legal permissibility.” Id. at 38. Second, we cited several statutes (both appropriations acts and provisions of title 31 codified near the ADA and referring to appropriations) in which “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.” Id. 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) (2000); see 2001 ADA Opinion, 25 Op. O.L.C. at 38; but cf. id. at 36– 37 & n.5 (acknowledging authority suggesting a different sense of “available” in this context). In addition, although describing the question before us as “a difficult issue of first impression for this Office,” we noted that the Office in a 1984 memorandum had assumed without discussion that the violation of “a condition within an appropriation” ordinarily would violate the ADA. Id. at 35 n.2 (describ- 64 Use of Appropriated Funds to Provide Light Refreshments at EPA Conferences ing 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, 1984)). 3 Our 2001 ADA Opinion did not address, among other things, “ceilings” (as noted above), the application of the ADA to amounts in a “fund,” or, most importantly for present purposes, “restrictions . . . not found in appropriations acts.” Id. at 34 n.1. Nor, as this caveat indicated, does the general recognition that the term “available” in section 1341(a)(1)(A) incorporates a concept of “validity” and suggests “legal permissibility” resolve the scope of such a concept under the terms of the statute and thereby answer the question whether the ADA applies to a restriction not found in an appropriation. The ADA prohibits “an expenditure or obligation exceeding an amount available in an appropriation . . . for the expenditure or obligation.” 31 U.S.C. § 1341(a)(1)(A) (emphasis added). Much as we thought in the 2001 ADA Opinion that reading this statute not to include some legal permissibility standard would have left the phrase “for the expenditure or obligation” “somewhat superfluous,” here reading the statute to apply to the violation of a codified statute such as section 1345—not part of an appropriation making an amount available for expenditure or obligation—would leave the phrase “in an appropriation” without any clear purpose. Congress could have prohibited simply expenditures or obligations “exceeding an amount available for the expenditure or obligation,” which might, given our reading of “available” in our earlier opinion, have suggested a broad inquiry into all possible legal constraints on the “availab[ility]” of an amount for an expenditure or obligation. The inclusion of the phrase “in an appropriation” suggests a more restrictive intent, such that one should answer the question of “availab[ility]” by determining “availab[ility]” within the terms of a particular “appropriation.” Moreover, and related, the concluding prepositional phrase “for the expenditure or obligation” in section 1341(a)(1)(A) is better read as modifying the noun “appropriation” (or “fund”) rather than, as our prior opinion asserted, the earlier adjective “available.” The full relevant portion of the ADA refers to “an expenditure or obligation exceeding an amount available in an appropriation or fund for 3 We rejected the holding of Southern Packaging & Storage Co. v. United States, 588 F. Supp. 532 (D.S.C. 1984), that violation of a “buy American” condition in an appropriations act did not violate the ADA. That court so held because it had “no evidence . . . that [the Defense Department] authorized expenditures beyond the amount appropriated by Congress for the procurement of” the items in question. Id. at 550. We disagreed with “the court’s apparent conclusion that, even though the appropriation forbade the purchase of non-American food items, there remained funds ‘available’ in that appropriation for such purchases.” The court’s decision, we thought, was “inconsistent with the Antideficiency Act’s legislative history and evolution and with the rest of the (limited) caselaw.” 2001 ADA Opinion, 25 Op. O.L.C. at 52. 65 Opinions of the Office of Legal Counsel in Volume 31 the expenditure or obligation.” Based on proximity, it is more credible to read the statute as referring to amounts “available” in an appropriation that is “for the expenditure or obligation” in question, rather than as essentially stating that the amount must be broadly “available for the expenditure or obligation” and also “in an appropriation.” The statutory history (discussed further below) also suggests this construction, as recognized in the 2001 ADA Opinion. In finding support for our reading of “available” in the existence of the phrase “for the expenditure or obligation,” we acknowledged, based on the version of the Act in force from 1950 to 1982, that the entire phrase “an amount available in an appropriation or fund for the expenditure or obligation” could be interchangeable with “the amount available []in” the “appropriation or fund” under which an expenditure or obligation was made. 2001 ADA Opinion, 25 Op. O.L.C. at 39; see also id. at 47–48. Because in the earlier opinion we limited our consideration to “internal caps” and “conditions,” this interpretation of the textual structure gives us no reason to question our ultimate conclusion there, even though that opinion purported to rely on a different interpretation of the structure: Once one identifies the “appropriation or fund for the expenditure or obligation” that is at issue, there is still the question of what amount is “available in” that appropriation, and our prior opinion determined that a limitation on spending that is “in an appropriation” is one whose violation also would violate the ADA. The assertion of how the phrase “for the expenditure or obligation” related to the rest of the provision was not necessary to reach that conclusion, given that the opinion provided additional bases for its reading of “available.” But the different understanding of the textual structure does make a difference here, because a proper reading reinforces that the ADA does not impose a roving requirement of “availability” under all possibly applicable law, but rather requires “availability” in the particular “appropriation . . . for the expenditure or obligation”—whether “availability” in the narrow sense of the existence of “unobligated” amounts “in” the appropriation or in the more extended sense of amounts not being subject to a restriction that is “in” the appropriation, such as the “internal cap” addressed in the 2001 ADA Opinion. One can readily accept our prior reading of “available” as having, since that term was introduced into the ADA in 1950, “incorporated the concept of legal permissibility,” 25 Op. O.L.C. at 39, and still conclude that the question of permissibility applies only “in an appropriation.” A proper understanding of the term “appropriation” as used in the ADA further supports this interpretation of section 1341. That term refers not to a particular pot of money—such that one might say availability is determined by all laws that apply to that pot—but rather to a particular legislative authorization of a federal agency to spend a particular amount of money for some purpose. An “appropriation” is a “legislative body’s act of setting aside a sum of money for a public purpose.” Black’s Law Dictionary 110 (8th ed. 2004). The congressional GAO (formerly known as the General Accounting Office) has defined the word similarly to mean “[a]uthority given to federal agencies to incur obligations and to make payments 66 Use of Appropriated Funds to Provide Light Refreshments at EPA Conferences from the Treasury for specified purposes.” General Accounting Office, GAO/AFMD-2.1.1, A Glossary of Terms Used in the Federal Budget Process 21 (1993). The GAO also has explained that “[a]ppropriations do not represent cash actually set aside in the Treasury. They represent legal authority granted by Congress to incur obligations and to make disbursements for the purposes, during the time periods, and up to the amount limitations specified in the appropriation acts.” 1 General Accounting Office, Principles of Federal Appropriations Law 2-5 (3d ed. 2004) (“Federal Appropriations Law”). The courts of appeals have adopted a similar definition. See, e.g., United States ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 286 n.1 (4th Cir. 2002) (citing the GAO definition). And section 1341(b), although not defining “appropriation,” contemplates that purchases may be made using money from “an appropriation made to a regular contingent fund”—a legislative authorization of a particular amount for a fund. Two sections of title 31 define the term “appropriations” similarly to the above authority. See 31 U.S.C. §§ 701, 1511 (2000). Although both of these provisions define the term only for the chapter or subchapter in which they appear, of which section 1341 is not a part, it is nevertheless reasonable to turn to them for guidance regarding the same term used elsewhere in that title. Section 1511, which concerns apportioning an appropriation across the period of the appropriation and, as indicated above, is part of the ADA, see generally 2001 ADA Opinion, 25 Op. O.L.C. at 36– 37, defines “appropriations” to mean “appropriated amounts,” “funds,” and “authority to make obligations by contract before appropriations.” 31 U.S.C. § 1511(a); see also id. §§ 1512–1514 (similar, part of the subchapter to which section 1511 applies). Section 701, which concerns the work of the GAO, defines “appropriations” as “appropriated amounts,” which includes, depending on the “appropriate context,” “funds,” “authority to make obligations by contract before appropriations,” and “other authority making amounts available for obligation or expenditure.” Id. § 701(2); see also id. § 1341(a)(1)(B) (providing that an employee may not involve the government “in a contract or obligation for the payment of money before an appropriation is made unless authorized by law”) (emphasis added). Thus, it is an “appropriation” that makes an amount available; the appropriation is not the physical amount that is available. Amounts are appropriated by proper authority, and an appropriation is something that is made. See, e.g., 2001 ADA Opinion, 25 Op. O.L.C. at 37 (referring to “appropriated funds”); id. at 45, 50 (same); id. at 52 (referring to a use of funds that “the appropriation forbade”). Accordingly, to determine under the ADA the “amount available in an appropriation . . . for [an] expenditure or obligation,” we must look to the applicable legislative act making the amounts in question available for obligation or expenditure—that is, to the applicable appropriation. A rule of construction that Congress has codified in title 31, and that applies to section 1341, reinforces this understanding of what an “appropriation” is, and thus where one looks to determine the amount available “in an appropriation.” Section 1301(d) provides that “[a] law may be construed to make an appropriation out of 67 Opinions of the Office of Legal Counsel in Volume 31 the Treasury or to authorize making a contract for the payment of money in excess of an appropriation only if the law specifically states that an appropriation is made or that such a contract may be made” (emphasis added). Enabling legislation, for example, has typically been viewed as not an “appropriation.” See, e.g., 1 Federal Appropriations Law at 2-40 (noting that “appropriation acts” “must be distinguished from” enabling or organic legislation, which typically “does not provide any money”). We do not see why the interpretive rule of section 1301(d) would not also apply to resolve any doubt about the scope of the ADA, such that a provision limiting the government’s ability to perform certain functions, including limiting expenditures, is not “in an appropriation” for purposes of section 1341— and thus does not alter the “amount available in an appropriation” for a given expenditure or obligation—unless it is found in a “law specifically stat[ing] that an appropriation is made” for the object in question. The statutory history of the ADA further supports our conclusion that a violation of a statutory restriction on spending does not violate that Act where the restriction is not “in an appropriation.” Throughout the four versions it has had in its long history, and even as Congress has broadened its scope somewhat, the ADA always has focused on expenditures in excess of sums in “appropriations” or “an appropriation,” and thus respected the distinction between appropriations and other legislation. The initial 1870 version prohibited “any department of the government” from “expend[ing] in any one fiscal year any sum in excess of appropriations made by Congress for that fiscal year.” Act of July 12, 1870, ch. 251, § 7, 16 Stat. 230, 251 (emphasis added). The 1905 version similarly required that “[n]o Department of the Government shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year.” Act of Mar. 3, 1905, ch. 1484, sec. 4, § 3679, 33 Stat. 1214, 1257 (emphasis added). The 1950 revision stated: “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.” Pub. L. No. 81759, sec. 1211, § 3679, 64 Stat. 595, 765 (1950) (emphases added). The current language of section 1341 was enacted as part of a general recodification of title 31 in 1982 and thus was not intended to work any substantive change, as we have recognized. See, e.g., 2001 ADA Opinion, 25 Op. O.L.C. at 39. The preamble to the recodification stated that the bill’s purpose was “[t]o 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.’” Pub. L. No. 97-258, 96 Stat. 877, 877 (1982); see also Finley v. United States, 490 U.S. 545, 554 (1989) (“Under established canons of statutory construction, ‘it will not be inferred that Congress, in revising and consolidating the laws, intended to change their effect unless such intention is clearly expressed.’”); see generally 2001 ADA Opinion, 25 Op. O.L.C. at 42–49 (canvassing the statutory and legislative histories of the Act in greater detail). Thus, the 1950 and current versions should be read in harmony, and the 1950 version, together with its predecessors, confirms the need 68 Use of Appropriated Funds to Provide Light Refreshments at EPA Conferences to focus on what an appropriation from which an expenditure is to be made (or under which an obligation is to be incurred) does or does not make “available.” The major substantive change during this history (apart from the addition of the word “fund” in 1950) was, as we explained in the 2001 ADA Opinion, the shift in 1950, continued in the current version, from a focus on “overall spending” by a particular department for a fiscal year, under appropriations made for that department, to a focus on “spending out of particular appropriations” and on “expenditures in excess of any single appropriation or fund.” Id. at 47, 48. Congress thus did broaden the Act. But, as our earlier explanation indicates, the ADA continued to focus, indeed even more than before, on particular legislative authorizations of spending—on the “appropriation . . . for the expenditure or obligation.” Congress, in making the ADA’s requirements more stringent, did not silently add to the ADA a new sanction for all violations of statutory restrictions on spending, whether in an appropriation or ordinary legislation. 4 Finally, to the extent that the above analysis leaves any ambiguity about whether violations of restrictions on spending not in the appropriation violate section 1341(a), our reading finds further support in the rule of lenity—the canon that if ambiguity remains in a criminal statute after textual, structural, historical, and precedential analyses have been exhausted, the narrower construction should prevail. See, e.g., Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (“Even if [the relevant statute] lacked clarity on this point, we would be constrained to interpret any ambiguity in the statute in petitioner’s favor.”). As noted above, the ADA carries both administrative (section 1351) and criminal (section 1350) penalties for its violations. The Supreme Court in Leocal unanimously held that, where (as here) a statute has “both criminal and noncriminal applications,” the rule of lenity applies in all applications, to ensure a consistent interpretation. Id. Our 2001 ADA Opinion did consider and reject the applicability of the rule of lenity to the distinct question whether to “equat[e] the terms ‘available’ and ‘unobligated,’” such that a cap or condition in an appropriation would not affect the “amount available in an appropria4 It is not clear how the term “fund” (added to the ADA in 1950) would be read in harmony with the term “appropriation.” and, thus, whether one could understand the phrase “amount available in a . . . fund for the expenditure or obligation” in precisely the same sense as the phrase “amount available in an appropriation . . . for the expenditure or obligation.” We are unaware of any judicial cases, opinions of this Office, or decisions of the Comptroller General interpreting section 1341(a)(1)(A) as applied to a “fund.” Although under normal rules of construction one presumptively should seek to read two seemingly parallel words in a statute, such as “appropriation” and “fund,” to have similar meanings, there may be reasons not to do so in section 1341. One can, as explained above, refer to an “appropriation made by Congress” and to “appropriated funds,” but it is not clear how one might use “fund” (or “funded”) in the same sense. Similarly, section 1341(b) refers to “an appropriation made to a regular contingent fund,” 31 U.S.C. § 1341(b) (emphasis added), and one would not ordinarily refer to “a fund made to a regular contingent fund” (or an appropriation made to an appropriation). Nor is it clear what it would mean to “authorize an obligation under . . . [a] fund.” We need not resolve such questions here, just as our 2001 ADA Opinion did not resolve them, because the facts that you have provided do not suggest the involvement of any “fund” as a possible source of expenditures for light refreshments. 69 Opinions of the Office of Legal Counsel in Volume 31 tion” for a given “expenditure or obligation.” 25 Op. O.L.C. at 41. We did so because, although the language of the ADA “admits of some ambiguity,” we found no serious ambiguity or “complete equipoise” on this question. Id. But, as noted above, to conclude simply that “available” means more than “unobligated,” such that the ADA would apply to an internal cap or condition—“in an appropriation”—does not answer just how far beyond “obligated” that term reaches, and in particular the critical question whether it reaches beyond the “appropriation” that makes “an amount available . . . for [an] expenditure or obligation,” or not. 5 For all of the above reasons, we conclude that the ADA does not reach beyond the “appropriation” that makes “an amount available . . . for [an] expenditure or obligation.” Because section 1345 of title 31 is not part of an appropriation, it does not determine the amount available in a particular appropriation for an expenditure or obligation; the ADA therefore does not apply by its own force to a violation of section 1345. C. KEVIN MARSHALL Deputy Assistant Attorney General Office of Legal Counsel 5 As in our 2001 ADA Opinion, we need not here resolve the applicability of the ADA to restrictions other than internal caps and conditions that may appear in an appropriations act. The 2001 ADA Opinion mentioned “ceilings” as an example. 25 Op. O.L.C. at 34. It is enough that section 1345 plainly is not “an appropriation” under any possible scope of that term. The Comptroller General has stated that an appropriation may be “exhausted” for purposes of section 1341(a) upon (1) the “[d]epletion of [an] appropriation account”; (2) the “depletion of a maximum amount specifically earmarked in a lump-sum appropriation”; or (3) the “[d]epletion of an amount subject to a monetary ceiling imposed by some other statute (usually, but not always, the relevant program legislation).” 2 Federal Appropriations Law at 6-41. The first category is, as we have explained, the paradigmatic violation of the ADA. The second is similar to the scenario addressed in our 2001 ADA Opinion, although we expressly did not reach specific earmarks. 25 Op. O.L.C. at 34. The third, although not directly on point for section 1345, is arguably in tension with our conclusion. We have considered the Comptroller’s limited precedent and brief reasoning in support of this third category and do not find them persuasive regarding whether the ADA applies to section 1345. See, e.g., Monetary Ceilings on Minor Military Construction (10 U.S.C. § 2805), 63 Comp. Gen. 422, 424 (1984) (indicating, without further explanation, that the monetary limit in section 2805(c) limited the “amount available in an appropriation” under the ADA); Reconsideration of B-214172, 64 Comp. Gen. 282, 289 (1985) (without citing Monetary Ceilings, extending earlier precedents that “involved limitations that were contained in an appropriation act” to apply “to a limitation contained in authorizing legislation”). 70 Use of Appropriated Funds to Provide Light Refreshments at EPA Conferences APPENDIX • Clean Air Act section 103, 42 U.S.C. § 7403 (2000). The EPA has authority to “establish a national research and development program for the prevention and control of air pollution,” and, among other things, may “promote the coordination” of research with private organizations, and may “provide financial assistance to,” “make grants to,” or “contract with” appropriate public or private agencies. EPA also may “provide training for, and make training grants to,” appropriate public or private organizations or individuals. Id. § 7403(a)–(b). • Clean Water Act section 104, 33 U.S.C. § 1254 (2000). The EPA has authority to “establish national programs for the prevention, reduction, and elimination of pollution” and, among other things, may “promote the coordination” of relevant activities with appropriate public and private organizations, may “render technical services” to appropriate organizations, and may “cooperate with,” “make grants to,” or “contract with” those organizations. Id. § 1254(a)–(b). EPA also may “finance pilot programs,” in cooperation with appropriate public and private parties, of “manpower development and training and retraining.” Id. § 1254(g). • Solid Waste Disposal Act section 8001, 42 U.S.C. § 6981 (2000). EPA may “encourage, cooperate with, and render financial and other assistance to appropriate” public or private organizations and individuals. Id. § 6981(a). • National Environmental Policy Act section 102(2)(G), 42 U.S.C. § 4332(2)(G) (2000). Federal agencies shall “make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment.” • Comprehensive Environmental Response, Compensation, and Liability Act section 104(k)(6), 42 U.S.C. § 9604(k)(6) (2000 & Supp. III 2003). The EPA may “provide, or fund eligible entities or nonprofit organizations to provide, training, research, and technical assistance to individuals and organizations, as appropriate.” In addition, under section 311, the EPA may “enter into contracts and cooperative agreements with, and make grants to, persons, public entities, and nonprofit private entities,” id. § 9660(b)(3) (2000), and conduct “a program of training,” id. § 9660(b)(9). • Intergovernmental Personnel Act, 42 U.S.C. § 4742 (2000). A federal agency “may admit State and local government employees and officials to agency training programs established for Federal professional, administrative, or technical personnel.” Id. § 4742(a). • Government Employees Training Act, 5 U.S.C. § 4110 (2000). A federal agency may expend travel expenses “for expenses of attendance at meetings which are 71 Opinions of the Office of Legal Counsel in Volume 31 concerned with the functions or activities for which the appropriation is made or which will contribute to improved conduct, supervision, or management of the functions or activities.” 72

Write a legal research memo on the following topic.

Applicability of 18 U.S.C. § 431 to Limited Partnership Interests in Government Leases A m odified version o f the proposed real estate transaction described in the February 17, 1998 opinion that gives the blind trusts no interest in any governm ent contracts is perm issible under 18 U.S.C. §431 March 13, 1998 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 G e n e r a l S e r v ic e s A d m in is t r a t io n This memorandum responds to your March 4, 1998 follow-up letter regarding our February 17, 1998 opinion on the applicability of 18 U.S.C. §§431-433 (1994) to the interests o f two Members of Congress in government contracts under a proposed real estate transaction.1 In your letter, you raise the question whether a modified version of the transaction, as described by counsel for the interested entities, would be permissible under 18 U.S.C. § 4 3 1.2 We conclude that the modi­ fied transaction as described by counsel would not violate 18 U.S.C. §431. Our February 17 opinion addressed several variations of a proposed transaction under which certain entities would contribute their assets to a limited partnership (the “ Operating Partnership” ), the sole general partner of which is a real estate investment trust (the “ REIT” ), in exchange for cash and preferred partnership units (“ OP Units” ) in the Operating Partnership. Six of these entities (the “ MOC Entities” ) are owned by trusts in which two Members of Congress have beneficial interests; none of the MOC Entities currendy holds any contracts with the Federal Government. Two entities, however (the “ non-MOC Entities” ), have current leases with federal agencies. The contribution of the non-MOC Entities’ assets to the Operating Partnership has prompted the question whether the proposed transaction would give the Members of Congress interests in Government con­ tracts in violation of 18 U.S.C. §431. In our February 17 opinion, we concluded that the unmodified proposed trans­ action would be prohibited by §431 because of two features of the OP Units to be received by the MOC Entities (and hence the trusts) under the transaction. First, the preferred distribution rights in the OP Units would be ownership interests in the Operating Partnership, and thus in the Government contracts held by the Partnership. See 22 Op. O.L.C. at 35-36. And second, the right to convert the 1See Applicability o f 18 V S C. §§431-433 to Limited Partnership Interests in Government Leases Under Proposed Transaction, 22 O p O L C 33 (1998). 2 See Letter for Emily Hewitt, General Counsel, General Services Administration, from Francis L. Coolidge, Ropes & Gray (Mar 3, 1998) ( “ Coolidge Letter III” ) As with our February 17 opinion, the facts outlined in this memo­ randum denve from information provided by you and by counsel for the entities that would contribute assets under the transaction To the extent that additional facts are relevant, but have not been described to us, our conclusion could change See 22 Op O L.C. at 33 n 2 41 Opinions o f the Office o f Legal Counsel in Volume 22 OP Units into common units of the Operating Partnership, and ultimately into shares of the REIT, would itself be a prohibited ownership interest in the Govern­ ment contracts under § 431. Id. at 36. Under the proposed modified transaction, the trusts, through the MOC Entities, would receive a discrete, alternate class of preferred partnership units in the Oper­ ating Partnership ( “ Alternate OP U nits” ) rather than the OP Units. The face value of the Alternate OP Units would be based on the fair market value of the MOC Entities’ assets, which do not include any Government contracts, and the distribu­ tion rate would be set at a fixed percentage of the face value.3 Holders of the Alternate OP Units would be excluded from any benefit derived from any Govern­ ment contracts held, or to be held, by the Operating Partnership. In particular, distributions made to holders of the Alternate OP Units would be reduced from the stated amount to the extent that the revenues of the Operating Partnership less any gross revenues from Government contracts were insufficient to make those payments; in addition, revenues from Government contracts would be seg­ regated so that distributions to Alternate OP Unit holders, in all cases clearly would be made only from revenues not derived from Government contracts. See Coolidge Letter III, at 2. As noted in our February 17 opinion, this modification ensures that the trusts do not benefit from any Government contracts in the dis­ tributions for the units— either through the receipt of actual revenues generated by the Government contracts or through the receipt of funds that would not have been paid but for those contracts. See 22 Op. O.L.C. at 36 n.10. Thus, the pro­ posed modification avoids the first problem identified in our opinion by elimi­ nating the ownership interests in the Operating Partnership’s Government contracts by virtue o f limited partnership distributions. Under the proposed modified transaction, the Alternate OP Units also would have no rights of conversion into either common units of the Operating Partnership or shares of the REIT. Instead, the Alternate OP Units would be redeemable by the owners solely for cash in the amount of their face value, and would be unilater­ ally called, at face value, by the Operating Partnership a fixed number of years after the transaction occurs. See Coolidge Letter III, at 2. Because the proposed modification eliminates the conversion-right feature of the OP Units, it avoids the second problem identified in our February 17 opinion. 3See Coolidge Letter III, at 1-2; Letter for Emily Hewitt, General Counsel, General Services Administration, from Francis L. Coolidge, Ropes & Gray (Mar. 12, 1998) (“ Coolidge Letter IV” ) Although the distribution rate of the A lternate OP Units would be higher than that to be earned by the OP Units, counsel for the entities advises that higher rate reflects solely the lack of conversion rights in the Alternate OP Units and does not in any way reflect com pensation for the value o f Government contracts held, o r to be held, by the Operating Partnership. See Coolidge Letter IV. Thus, neither the face value nor the distribution rate of the Alternate O P Units reflects the value o f G overnm ent contracts. Id 42 Applicability o f 18 U.S C. §431 to Limited Partnership Interests in Government Leases As modified, therefore, the proposed transaction would not give the trusts any interest in Government contracts, and it would not be prohibited by §431. BETH NOLAN Deputy Assistant Attorney General Office o f Legal Counsel 43

Write a legal research memo on the following topic.

Applicability of 18 U.S.C. § 431 to Limited Partnership Interests in Government Leases A m odified version o f the proposed real estate transaction described in the February 17, 1998 opinion that gives the blind trusts no interest in any governm ent contracts is perm issible under 18 U.S.C. §431 March 13, 1998 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 G e n e r a l S e r v ic e s A d m in is t r a t io n This memorandum responds to your March 4, 1998 follow-up letter regarding our February 17, 1998 opinion on the applicability of 18 U.S.C. §§431-433 (1994) to the interests o f two Members of Congress in government contracts under a proposed real estate transaction.1 In your letter, you raise the question whether a modified version of the transaction, as described by counsel for the interested entities, would be permissible under 18 U.S.C. § 4 3 1.2 We conclude that the modi­ fied transaction as described by counsel would not violate 18 U.S.C. §431. Our February 17 opinion addressed several variations of a proposed transaction under which certain entities would contribute their assets to a limited partnership (the “ Operating Partnership” ), the sole general partner of which is a real estate investment trust (the “ REIT” ), in exchange for cash and preferred partnership units (“ OP Units” ) in the Operating Partnership. Six of these entities (the “ MOC Entities” ) are owned by trusts in which two Members of Congress have beneficial interests; none of the MOC Entities currendy holds any contracts with the Federal Government. Two entities, however (the “ non-MOC Entities” ), have current leases with federal agencies. The contribution of the non-MOC Entities’ assets to the Operating Partnership has prompted the question whether the proposed transaction would give the Members of Congress interests in Government con­ tracts in violation of 18 U.S.C. §431. In our February 17 opinion, we concluded that the unmodified proposed trans­ action would be prohibited by §431 because of two features of the OP Units to be received by the MOC Entities (and hence the trusts) under the transaction. First, the preferred distribution rights in the OP Units would be ownership interests in the Operating Partnership, and thus in the Government contracts held by the Partnership. See 22 Op. O.L.C. at 35-36. And second, the right to convert the 1See Applicability o f 18 V S C. §§431-433 to Limited Partnership Interests in Government Leases Under Proposed Transaction, 22 O p O L C 33 (1998). 2 See Letter for Emily Hewitt, General Counsel, General Services Administration, from Francis L. Coolidge, Ropes & Gray (Mar 3, 1998) ( “ Coolidge Letter III” ) As with our February 17 opinion, the facts outlined in this memo­ randum denve from information provided by you and by counsel for the entities that would contribute assets under the transaction To the extent that additional facts are relevant, but have not been described to us, our conclusion could change See 22 Op O L.C. at 33 n 2 41 Opinions o f the Office o f Legal Counsel in Volume 22 OP Units into common units of the Operating Partnership, and ultimately into shares of the REIT, would itself be a prohibited ownership interest in the Govern­ ment contracts under § 431. Id. at 36. Under the proposed modified transaction, the trusts, through the MOC Entities, would receive a discrete, alternate class of preferred partnership units in the Oper­ ating Partnership ( “ Alternate OP U nits” ) rather than the OP Units. The face value of the Alternate OP Units would be based on the fair market value of the MOC Entities’ assets, which do not include any Government contracts, and the distribu­ tion rate would be set at a fixed percentage of the face value.3 Holders of the Alternate OP Units would be excluded from any benefit derived from any Govern­ ment contracts held, or to be held, by the Operating Partnership. In particular, distributions made to holders of the Alternate OP Units would be reduced from the stated amount to the extent that the revenues of the Operating Partnership less any gross revenues from Government contracts were insufficient to make those payments; in addition, revenues from Government contracts would be seg­ regated so that distributions to Alternate OP Unit holders, in all cases clearly would be made only from revenues not derived from Government contracts. See Coolidge Letter III, at 2. As noted in our February 17 opinion, this modification ensures that the trusts do not benefit from any Government contracts in the dis­ tributions for the units— either through the receipt of actual revenues generated by the Government contracts or through the receipt of funds that would not have been paid but for those contracts. See 22 Op. O.L.C. at 36 n.10. Thus, the pro­ posed modification avoids the first problem identified in our opinion by elimi­ nating the ownership interests in the Operating Partnership’s Government contracts by virtue o f limited partnership distributions. Under the proposed modified transaction, the Alternate OP Units also would have no rights of conversion into either common units of the Operating Partnership or shares of the REIT. Instead, the Alternate OP Units would be redeemable by the owners solely for cash in the amount of their face value, and would be unilater­ ally called, at face value, by the Operating Partnership a fixed number of years after the transaction occurs. See Coolidge Letter III, at 2. Because the proposed modification eliminates the conversion-right feature of the OP Units, it avoids the second problem identified in our February 17 opinion. 3See Coolidge Letter III, at 1-2; Letter for Emily Hewitt, General Counsel, General Services Administration, from Francis L. Coolidge, Ropes & Gray (Mar. 12, 1998) (“ Coolidge Letter IV” ) Although the distribution rate of the A lternate OP Units would be higher than that to be earned by the OP Units, counsel for the entities advises that higher rate reflects solely the lack of conversion rights in the Alternate OP Units and does not in any way reflect com pensation for the value o f Government contracts held, o r to be held, by the Operating Partnership. See Coolidge Letter IV. Thus, neither the face value nor the distribution rate of the Alternate O P Units reflects the value o f G overnm ent contracts. Id 42 Applicability o f 18 U.S C. §431 to Limited Partnership Interests in Government Leases As modified, therefore, the proposed transaction would not give the trusts any interest in Government contracts, and it would not be prohibited by §431. BETH NOLAN Deputy Assistant Attorney General Office o f Legal Counsel 43

Write a legal research memo on the following topic.

March 22, 1977 77-13 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL Washington, D.C., Hostage Situation: Basis for Federal Jurisdiction The United States Attorney for the District of Columbia is under the immediate supervision of the Attorney General, in a chain of command sense, because of the Federal Government’s responsibility for the Dis­ trict and the U.S. Attorney’s role as chief prosecutor of crimes arising under the District of Columbia Code. For this reason, and apart from any consideration of Federal jurisdiction based on violations of Federal law, the Attorney General has a basis on which to participate with the U.S. Attorney in formulating a response to situations such as this. Section 533 of Title 28 provides that the Attorney General may appoint officials to conduct investigations regarding official matters under the control of the Department of Justice. In our opinion, this statute pro­ vides the Attorney General, at least, with authority to provide investi­ gative support to local officials in connection with actions of a local nature within the District. This conclusion arises from the relationship between the U.S. Attorney and the Department o f Justice. This statute does not, of course, provide a basis for the assertion of Federal jurisdic­ tion based on the commission of a substantive Federal offense. In addition, with respect to the use of Justice Department personnel (the Federal Bureau of Investigation (FBI), for example) in the investi­ gative stages of the hostage incident, it is our conclusion that the FBI guidelines do permit the Bureau to conduct an investigation to deter­ mine whether a Federal substantive offense has been committed. Finally, it is the conclusion of this Office that four Federal statutes furnish a possible basis for Federal jurisdiction, and they are as follows: 1. Under 18 U.S.C. § 922(d)(4) it is unlawful for any person who has been adjudicated a mental defective or who has been committed to any mental institution to receive any firearm or ammunition that has been shipped or transported in interstate commerce. Firearms are not manu­ factured in the District. According to information we received, the leader of the group apparently responsible for this situation had been 31 declared a mental defective. On the basis of these facts, it would appear that this statute was violated or that, at least, there was a reasonable basis for investigating to determine whether it had been violated. 2. Under 18 U.S.C. § 231(a)(2) it is a Federal offense for one to transport in commerce a firearm knowing or having reason to know or intending that it will be used unlawfully in furtherance of a civil disorder. “The term ‘civil disorder’ means any public disturbance in­ volving acts of violence by assemblages of three or more persons, which cause an immediate danger of or results in damage or injury to the property or person of any other individual.” 18 U.S.C. § 232(1). O ur information established that there were more than three persons involved in this incident and clearly the remaining requirements of this definition were met. Likewise, the transportation-in-commerce require­ ment was met by virtue o f the definition of that term in 18 U.S.C. § 232(2) which provides as follows: The term ‘commerce’ means commerce (A) between any State or the District of Columbia and any place outside thereof; (B) be­ tween points within any State or the District of Columbia, but through any place outside thereof; or (C) wholly within the Dis­ trict of Columbia. Again, the facts available to us indicate that this statute had been violated. 3. The Riot Statute, 18 U.S.C. § 2101(a)(1), provides as follows: W hoever travels in interstate or foreign commerce or uses any facility o f interstate or foreign commerce, including, but not limit­ ed to, the mail, telegraph, telephone, radio, or television, with intent—(A) to incite a riot; or (B) to organize, promote, encourage, participate in or carry on a riot; or (C) to commit any act of violence in furtherance o f a riot; or (D) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot; and who either during the course o f any such travel or use or thereafter performs or attempts to perform any other overt act for any purpose specified in subparagraph (A), (B), (C), or (D) of this paragraph [is guilty of a federal offense]. O ur information was that the U-Haul truck used by those persons instigating this incident was rented in College Park, Maryland, thus apparently fulfilling the requirement of § 2101(a)(1). The term “riot” is defined in § 2102(a) in such a manner as to include the actions of those involved in this incident because there were acts of violence by an assemblage of at least three persons that constituted a clear and present danger of damage or injury to the person or property of other individ­ uals. Therefore, it again appeared that, based on the information availa­ ble to us, a Federal crime had been committed under this statute. 32 4. One of the Civil Rights statutes, 18 U.S.C. §245, may also come into play here because of the apparently religious-based motives of the perpetrators of this incident, and because of the implications of their choice of the B’nai B’rith building and The Islamic Center and the occupants thereof as targets for their actions. It should be noted that this statute provides the weakest basis for the assertion of Federal jurisdiction. This is because this statute is designed to cover federally protected activities, such as voting, employment, jury duty in the United States courts, participation in Federal programs, education, travel and the use of certain facilities in connection with travel. It does not appear, or at least we did not have facts indicating, that these socalled federally protected activities were implicated by this incident except in perhaps a tangential manner. John M. H armon Acting Assistant Attorney General Office o f Legal Counsel 33

Write a legal research memo on the following topic.

Severability of Legislative Veto Provision A legislative veto provision in the S elective Service Act, w hich w ould authorize either H ouse o f C ongress to disapprove contracts in excess o f $25,000,000, is unconstitutional under Im m igration a n d N aturalization Service v. Chadha, but is severable from the rest o f the statute. T his unconstitutional provision m ust be severed from the statute in its entirety, including its language callin g fo r notification to C ongress o f proposed contracts. February 28, 1991 M e m o r a n d u m O p in io n f o r t h e A c t in g G e n e r a l C o u n s e l F ed era l Em ergency M anagem ent A gency This responds to your request for the opinion of this Office concerning the severability of an unconstitutional legislative veto provision in section 18(a) of the Selective Service Act of 1948, 50 U.S.C. app. § 468(a). The statute authorizes the President to secure expedited delivery of materials procured for the military forces of the United States. It also contains a provision added in 1973 that would enable one House of Congress to disap­ prove contracts of more than twenty-five million dollars. We conclude that the unconstitutional legislative veto is severable from the statute’s grant of authority to the President to obtain expedited delivery of military contracts. We further conclude that the better view, under the unsettled authority, is that the portion of the statute added by the 1973 amendment constitutes the provision that must be severed from the statute. I. Section 18(a) of the Selective Service Act of 1948 provides: Whenever the President after consultation with and receiv­ ing advice from the National Security Resources Board determines that it is in the interest of the national security for the Government to obtain prompt delivery of any articles or materials the procurement of which has been authorized by the Congress exclusively for the use of the armed forces of 49 the United States, or for the use o f the Atomic Energy Com­ mission, he is authorized, through the head o f any Government agency, to place with any person operating a plant, mine, or other facility capable of producing such articles or materials an order for such quantity of such articles or materials as the President deems appropriate, except that no order which re­ quires payments thereunder in excess of $25,000,000 shall be placed with any person unless the Committees on Armed Ser­ vices of the Senate and the House of Representatives have been notified in writing of such proposed order and 60 days of continuous session of Congress have expired following the date on which such notice was transmitted to such Commit­ tees and neither House of Congress has adopted, within such 60-day period, a resolution disapproving such order. 50 U.S.C. app. § 468(a). Section 18(b) of the Act directs contractors to give precedence to orders placed pursuant to the statute. 50 U.S.C. app. § 468(a). The statute did not contain a legislative veto as originally enacted. Congress added the clause in section 18(a) that begins “except that no order” in 1973. See Department of Defense Appropriation Authorization Act, 1974, Pub. L. No. 93-155, § 807(d)(1), 87 Stat. 605, 616 (1973). II. The provision authorizing one House of Congress to disapprove an order of more than twenty-five million dollars is unconstitutional. Immigration and N aturalization Service v. Chadha, 462 U.S. 919 (1983). Chadha states that congressional “action that ha[s] the purpose and effect of altering the legal rights, duties, and relations of persons . . . outside the Legislative Branch,” id. at 952, must comply with the constitutional requirements of passage by both Houses of Congress and presentment to the President for approval or veto. U.S. Const, art. I, §§ 1, 7. The resolution of disapproval authorized by the 1973 addition to section 18(a) authorizes one House of Congress to limit the President’s legal powers. The congressional disap­ proval mechanism, therefore, may not constitutionally be employed. III. A. The next question is whether the legislative veto may be severed from the remaining provisions of the statute that grant the President authority to order articles and materials on an expedited basis. The Supreme Court has de­ cided the severability of a legislative veto provision on two occasions. See 50 Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987); Chadha, 462 U.S. at 931-35. Both cases employ the standard test for severability questions: “Unless it is evident that the Legislature would not have enacted those pro­ visions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” Alaska Airlines, 480 U.S. at 684; Chadha, 462 U.S. at 931-32.1 Writing with specific reference to legislative vetoes, the Court in Alaska Airlines emphasized that “ [t]he more relevant inquiry in evaluating severability is whether the statute will function in a manner consistent with the intent of Congress.” 480 U.S. at 685. Additionally, unconstitutional provisions are presumed to be severable from the remainder of a statute. See Regan v. Time, Inc., 468 U.S. 641, 653 (1984) (plurality opinion). Finally, unconsti­ tutional provisions are further presumed to be severable if they are contained in a statute that includes a severability clause. See, e.g., Alaska Airlines, 480 U.S. at 686; Chadha, 462 U.S. at 932. The absence of such a clause, however, does not give rise to a presumption against severability. See Alaska Airlines, 480 U.S. at 686.2 The grant of authority to the President in section 18(a) would remain fully operative as a law if the congressional disapproval language is excised. The language authorizing the President to order materials needed for na­ tional security was part of the statute as originally enacted in 1948. It was fully operational in its original form. The congressional disapproval mecha­ nism was added by Congress in 1973 to provide congressional review o f a Presidential decision to place orders over $25,000,000. As the Court ex­ plained in Alaska Airlines, provisions of this sort are by their “very nature . . . separate from the operation of the substantive provisions of a statute,” and do not affect the capacity of the balance of the legislation to function indepen­ dently. 480 U.S. at 684-85. Next, the law that results when the legislative veto provision is severed is not one that Congress would not have enacted. See Alaska Airlines, 480 U.S. at 685 (severance improper where it would produce a statute that Con­ gress would not have accepted). O f course, “the absence of the veto necessarily alters the balance of powers between the Legislative and Executive Branches of the Federal Government,” Alaska Airlines 480 U.S. at 685, but that is not enough to preclude severance. Rather, the appropriate inquiry is whether the delegation to the President of the power to enter into these military contracts is “so controversial or so broad that Congress would have been unwilling to make the delegation without a strong oversight mechanism.” Id. There is no reason to believe that Congress would have refused to grant this power. Congress made such a grant in 1948, and added the legislative veto provision only in 1973. In this case, then, the proper question is whether in 1973 Congress would have repealed the 1948 law if it had known that the 1 This is the C ourt’s longstanding test for severability. See Champlin Refining Co. v. Corporation Comm 'n, 286 U.S 2 1 0 ,2 3 4 (1932). 2 Neither the 1948 act nor the 1973 amendments include a severability clause. 51 legislative veto provision was impermissible. We are aware of no indication that Congress would have taken such a step, and the legislative history of the 1973 amendment strongly suggests that it would have done no such thing. Congress added the legislative veto to the statute in 1973 as one of a group o f amendments to four statutes giving the President emergency pow­ ers in an attempt to “reassert congressional control over backdoor financing of defense contractors.” 119 Cong. Rec. 30,873 (1973) (statement of Sen. Proxmire). The initial Senate version of the 1973 amendment would have provided that no order over twenty-million dollars could be placed “except with the prior approval of the Congress.” Id. at 30,872. The Conference Committee changed this and the other three provisions because “[w]hile the House conferees were sympathetic to the purposes of the amendment, they were concerned that the language was unduly restrictive and could result in delays on important weapons programs.” H.R. Conf. Rep. No. 588, 93d Cong., 1st Sess. 44 (1973) (explaining amendment to 10 U.S.C. § 2307). In short, Congress wanted a legislative veto, but not at the price of destroying the President’s authority to act in an emergency. Refusal to sever the legislative veto would produce the harsh result Congress was careful to avoid. Accord­ ingly, the legislative veto may be severed from the remainder of the statute. 1. Because of the way in which this statute is phrased, we must determine the proper way in which to sever the unconstitutional provision. The 1973 am endment reads: except that no order which requires payments thereunder in excess of $25,000,000 shall be placed with any person unless the Committees on Armed Services of the Senate and the House o f Representatives have been notified in writing of such pro­ posed order and 60 days of continuous session of Congress have expired following the date on which such notice was transmitted to such Committees and neither House of Con­ gress has adopted, within such 60-day period, a resolution disapproving such order. 50 U.S.C. app. § 468(a). If the entire provision were severed, the statute would return to the form it had when first enacted. The language also permits another line of severance. If only the disapproval mechanism — i.e., the words “and neither House of Congress has adopted, within such 60day period, a resolution disapproving such order” — were removed, the provision would in effect be transformed into a report-and-wait requirement.3 3 T here is at least one other alternative: severance of the words "and 60 days of continuous session of C ongress have expired following the date on which such notice was transmitted to such Com mittees and neither House o f Congress has adopted, within such 60-day period, a resolution disapproving such order.” Severance o f this clause would elim inate the sixty-day delay period and the disapproval require­ m ent but would preserve the reporting requirement. The C ourt’s decisions, however, lend no support to this choice. 52 In order to decide this question, we must identify the portion of the statute that constitutes the unconstitutional legislative veto. Neither Alaska Airlines nor Chadha addressed this as a separate issue, although each case in some sense decided it, because each case described the statute that would remain after severance. The Court’s unexplained decisions in the two cases point in opposite directions: Alaska Airlines supports severance of the entire provi­ sion added in 1973, but Chadha supports the line of severance that would leave a report-and-wait requirement. While the existing authorities thus do not provide a certain answer, we believe the better view to be that the entire clause added in 1973 constitutes the legislative veto that must be severed from the valid remainder of the statute. Severance o f the entire provision is supported by textual analysis and by Alaska Airlines. First, the legislative veto is most naturally read as a single requirement; it is only an accident of phrasing that makes it possible to produce a report-and-wait procedure by deleting certain words. The require­ ment of a report to Congress is integral to the operation of the legislative veto itself. It gives each House of Congress the notice and information needed to exercise its veto power, and provides a time-table for the onehouse veto procedure. Without these, the legislative veto could not function, but they have no independent importance. There is therefore no reason to give the notification rule any independent status. Nothing in the legislative history demonstrates any perception of separate requirements for reporting, waiting, and disapproval. Instead, Congress seemingly viewed the entire clause as indivisible, with the reporting requirement and the sixty-day delay period operating only to facilitate the exercise of the disapproval power. The 1973 amendment therefore would not operate in the manner that Con­ gress intended if only the disapproval mechanism is removed from the statute. Alaska A irlines , in which the Supreme Court most recently considered questions of severability in depth, reinforces this conclusion. The statute at issue in that case authorizes the Secretary of Labor to issue regulations for the administration of an airline employee protection program. 49 U.S.C. app. § 1552(0(1)- The statute further provides: The Secretary shall not issue any rule or regulation as a final rule or regulation under this section until 30 legislative days after it has been submitted to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Public Works and Transportation of the House of Repre­ sentatives. Any rule or regulation issued by the Secretary under this section as a final rule or regulation shall be submit­ ted to the Congress and shall become effective 60 legislative days after the date of such submission, unless during that 60day period either House adopts a resolution stating that that House disapproves such rules or regulations, except that such rules or regulations may become effective on the date, during 53 such 60-day period, that a resolution has been adopted by both Houses stating that the Congress approves o f them. 49 U.S.C. app. § 1552(f)(3). The Court characterized the entire second sentence o f this subsection as the “legislative-veto provision which gave rise to this litigation,” 480 U.S. at 682, and severed that provision from the rest of the statute. Likewise, the legislative veto provision added to the Selective Service Act in 1973 has the same three components: a report requirement, a wait requirement, and a disapproval mechanism. According to the opinion in A laska A irlines, those provisions together constitute the legislative veto and should be treated as a unit for purposes of severance. W hile we take some guidance from Alaska Airlines, we do not suggest that the case is dispositive. For one thing, the disputed question in that case was whether the regulatory authority the statute gives to the Secretary of Transportation survived the invalidation of the legislative veto. Once the Court determined that the legislative veto could be severed from the grant of authority to issue regulations, the Court did not have to decide what the “legislative veto” was. Also, the statute at issue in Alaska Airlines already contains a report-and-wait requirement (the first sentence of 49 U.S.C. app. § 1552(0(3)) distinct from the provision the Court severed (the second sen­ tence of 49 U.S.C. § 1552(0(3)). Thus, severance did not eliminate all statutorily-mandated congressional oversight, a point the Court made in its opinion. See 480 U.S. at 689 (“should Congress object to the regulations issued, it retains a mechanism for the expression o f its disapproval that re­ duces any disruption of congressional oversight caused by severance of the veto provision”). By contrast, severance of the entire provision added to section 18(a) of the Selective Service Act in 1973 would eliminate any statu­ tory oversight procedure. Severance of the disapproval mechanism alone is supported by other strands o f the C ourt’s severability analysis and by the Court’ opinion in Chadha. Severance of the last clause of the 1973 amendment instead of the whole 1973 amendment results in legislation that Congress might have en­ acted. If the purpose of the 1973 amendment was to facilitate congressional oversight, preservation of a report-and-wait requirement would further this goal, albeit less successfully than the legislative veto Congress drafted.4 Chadha lends some support to this line of severance. In Chadha, the Court’s mode of severance removed the congressional disapproval mechanism while 4 It also m ight be argued that this line o f severance is most faithful to the Court’s command to “refrain from invalidating more of the statute than is necessary.” Alaska Airlines, 480 U.S. at 684. We doubt, however, that the C ourt’s point is to save as many words as possible. Rather, the goal is to preserve “unobjectionable provisions separable from those found to be unconstitutional.” Id. at 684 (quoting Regan v. Time, Inc., 468 U.S. at 652) (em phasis added). That rule cannot be applied until we have decided w hether the words that would produce a report-and-wait procedure constitute a separate “pro­ vision." 54 leaving a report-and-wait requirement.5 Application of this technique to sec­ tion 18(a) of the Selective Service Act would eliminate the congressional disapproval mechanism but preserve the rest of the section, thus effectively creating a report-and-wait requirement. Chadha , however, can be distinguished from the situation we confront here. The history of the Immigration and Nationality Act indicates that Congress sought to confer substantial power on the Attorney General but also to retain some active role in the deportation process, whether or not that role involved the specific legislative veto in force at the time of Chadha.6 The Court concluded on the basis of this history that the legislative veto was severable because Congress would not have simply returned to the privatebill system had it known the one-house veto to be impermissible. 462 U.S. at 934. The history also supported the conclusion that Congress was deter­ mined to retain an active role, and thus accorded with the Court’s decision to sever the legislative veto so as to produce a report-and-wait mechanism. There is no similar evidence concerning the 1973 amendment to the Selec^ tive Service Act. Congress had not tinkered with the relative powers of the two branches and gave no indication that it had any strong separate interest in being involved in the decision if the legislative veto was unavailable. Under these circumstances, to change the legislative veto into a report-andwait mechanism would represent a rewriting of the statute based on nothing more than speculation as to Congress’s probable preferences. The C ourt’s approach in Alaska Airlines avoids these difficulties. To the extent the two cases are in tension, Alaska Airlines is authoritative, both because it is more recent and because it deals with severability in greater detail and therefore is more likely to represent the Court’s consid­ ered judgment on the matter. The outcome in Alaska Airlines may represent a judgment (or at least an intuition) by the Court that the severance of entire legislative-veto mechanisms is less likely to produce statutes that Congress would never have written than is the speculative process of removing the portion of a single mechanism that seems to contain the legislative veto in isolation. 5 The legislative veto appeared in section 244(c) of the Immigration and Nationality Act, 8 U.S.C. A. § 1254(c) (1970), which has since been amended, see 8 U S C. § 1254(c) Section 244(c)(1) of the Act required the Attorney General to report to Congress when he suspends the deportation o f an alien. 8 U.S.C. § 1254(c)(1) (1970). Section 244(c)(2) of the Act provided. [T]f during the session of the Congress at which a case is reported, or prior to the close of the session o f the Congress next following the session at which a case is reported, either the Senate or the House o f Representatives passes a resolution stating in substance that it does not favor the suspension of such deportation, the Attorney General shall thereupon deport such alien or authorize the alien’s voluntary departure at his own expense under the order of deportation in the manner provided by law. If, within the time above specified, neither the Senate nor the House of Representatives shall pass such a resolution, the Attorney General shall cancel deportation proceedings. 8 U.S.C. § 1254(c)(2) (1970). Thus, the first subsection contained a report requirement, and the second subsection contained both a wait requirement and a disapproval mechanism In Chadha the Court ex­ cised the disapproval mechanism but retained the wait requirement contained in the sam e subsection, observing that “ [wjithout the one-House veto, § 244 resembles the ‘report and w ait’ provision approved by the Court in Sibbach v. Wilson <6 Co., 312 U.S. 1 (1941).” 462 U.S. at 935 n.9. 55 CONCLUSION In sum, the one-House veto clause added to section 18(a) of the Selective Service Act in 1973 is unconstitutional. The legislative veto is severable from the remainder of the section 18(a). Under the best understanding of the Supreme Court’s approach to severability, the 1973 amendment should be severed in its entirety, thus returning the statute to the form it had when originally adopted in 1948. As a matter of comity, however, you may wish to inform Congress of a contract of more than twenty-five million dollars. More­ over, depending on the urgency of the situation, you may wish to allow Congress time to decide if it wants to take legislative action concerning a contract. JOHN C. HARRISON Deputy Assistant Attorney General Office o f Legal Counsel * As the Court explained. Congress originally permitted deportable aliens to remain in the United States through private bills. 462 U.S. at 933. In 1940, Congress authorized the Attorney General to suspend deportations but provided that Congress could overrule a suspension by a concurrent resolution. Id. at 933-34. W hen the concurrent resolution mechanism also proved burdensome, it was replaced with the schem e at issue in Chadha, under which the Attorney G eneral’s decision could be overridden by a one-H ouse resolution. Id. at 934. 56

Write a legal research memo on the following topic.

State Regulation of an Insurance Program Conducted by the Export-Import Bank of the United States Entities who participate as interm ediaries with small businesses in an insurance program oper­ ated by the Export-Import Bank are subject to non-discrim inatory state regulation o f their activities. March 19, 1986 M em orandum E x p o r t -I m O p in io n po rt for the Bank G eneral C oun sel, of the U n it e d S t a t e s This memorandum responds to your request for the Department of Justice’s opinion whether the states may regulate or tax certain entities involved in an insurance program developed by the Export-Import Bank of the United States (Eximbank) for small business.1 Your request is limited to the single issue of whether the states may regulate the “Administrators” who participated in the program and act as agents for the small businesses purchasing the insurance developed by Eximbank. We conclude that the Administrators are subject to nondiscriminatory state regulation. I. Background Eximbank is a wholly owned government corporation and an agency of the United States. 12 U.S.C. § 635(a)(1). Congress originally established it to facilitate the exchange of commodities between the United States and other countries. In 1953, for the first time, Eximbank was granted, in addition to the power to make loans and guarantees, the power to provide insurance against risks of loss associated with commercial exportation of goods. Pub. L. No. 8330,67 Stat. 28 (1953). Current law authorizes Eximbank to “guarantee, insure, coinsure, and reinsure against political and credit risks of loss.” 12 U.S.C. § 635(a)(1). Eximbank also is authorized to employ “exporters, insurance companies, financial institutions, or others or groups thereof’ to act as its agents in the issuance and servicing of insurance. Id. 635(c)(2). The Foreign Credit Insur­ 1The entities involved in the program are: (1) Eximbank itself; (2) the Foreign Credit Insurance A ssocia­ tion, an association o f private insurers that acts as E xim bank's agent in providing insurance; and (3) various ‘‘A dm inistrators” who act as agents for the small businesses w ho purchase the insurance developed by Eximbank. 27 ance Association (FCIA) is an association composed of private commercial insurance carriers created in 1961 to act with Eximbank in providing protection against certain of the commercial and political risks faced by American export­ ers when they sell to foreign customers on credit terms. The FCIA is the agent of Eximbank in selling such insurance. The final significant participants in Eximbank insurance activities are known as “Administrators.” Your office has described the role of the Administrators as follows: In response to a Congressional mandate for Eximbank to en­ courage the participation of small business in international trade, Eximbank has developed a new insurance policy, the Export Credit Insurance Umbrella Policy (the “Umbrella Policy”) . . . . The Umbrella Policy was devised to improve distribution of, and simplify the paperwork associated with, our export credit insurance by using certain entities, which have frequent contact with small businesses, as intermediaries (the “Administrators”). Eximbank is the only insurer on the Umbrella Policy, and FCIA acts as Eximbank’s agent. A number of exporters can be insured under one policy and have the policy paperwork handled by an Administrator who is free to charge the insured exporters a fee for its services. The Administrators are thus essentially insurance brokers for the small busi­ nesses who wish to purchase insurance from Eximbank through the FCIA. II. Analysis Federal instrumentalities are immune from state regulation, in the absence of “clear and unambiguous” congressional authorization. Hancock v. Train, 426 U.S. 105, 179 (1976). It is well settled, however, that independent federal contractors are not federal instrumentalities and therefore may be subject to state regulation even if such regulation increases the burden on the federal government. See Penn Dairies, Inc. v. Pennsylvania Milk Control Comm’n, 318 U.S. 261, 269 (1943) (“those who contract to furnish supplies or render services to the government are not [federal] agencies and do not perform governmental functions”). We understand that the Administrators are not even agents of federal government, but instead are agents of the small business exporters for whom they obtain Eximbank’s umbrella insurance and do the policy paperwork and from whom they receive a fee for their services. There­ fore, it is clear that the Administrators are not immune from state regulation on the grounds that they constitute federal instrumentalities. The remaining basis for exempting the Administrators from state regulation is federal preemption. A state law will be deemed preempted by federal law either if it conflicts with federal law, or if the federal law suggests that Congress intended its own law to occupy the field fully, irrespective of the 28 substance of the state law. Florida Avocado Growers v. Paul, 373 U.S. 132, 141 (1963). We understand that state laws that restrict certain institutions such as state banks from acting as insurance brokers limit the potential class of Administrators, thus possibly inhibiting the distribution of insurance in the small business community.2 We are also informed that some states impose licensing requirements on corporations engaged in insurance activities such as those undertaken by the Administrators, and thereby subject such corporations to regulation. The overall effect of these state laws may be to discourage some institutions, particularly banks, from becoming Administrators.3 The touchstone of a preemption claim is the intent of Congress. See, e.g., Malone v. White Motor Corp., 435 U.S. 497, 504 (1978). Preemption analysis, however, begins with certain presumptions, because congressional intent with respect to displacing state regulations is often unclear. When Congress legis­ lates “in a field which the states have traditionally .. . occupied we start with the assumption that the historic police powers of the States [are] not to be ousted by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). The regulation of insurance is a field traditionally occupied by the states and therefore it cannot lightly be inferred that Congress intended to legislate in derogation of state regulation of corporations operating in this area.4 After a survey of the statute and the legislative history we are unable to locate any statutory provision that conflicts with state insurance law or any congressional intent to abrogate state licensing and regulatory schemes. To be sure, the November 30, 1983 Amendments to the Export-Import Bank Act, Pub. L. No. 98- 181, 97 Stat. 1254, evince an intent to increase Eximbank aid to small business. In the 1983 Amendments Congress stated: (i) (I) It is further the policy of the United States to encourage the participation of small business in international com­ merce. (II) In exercising its authority, the Bank shall develop a program which gives fair consideration to making loans and providing guarantees for the export of goods and services by small businesses. (ii) It is further the policy of the United States that the Bank shall give due recognition to the policy stated in § 631(a) of Title 15 that “the Government should 2See, e.g., Conn. Gen. Stat. § 38-72(a). 3 See generally W ise. G en Stat. § 618. 4 Indeed, Congress has recognized the im portance o f local regulation o f insurance in the M cCarranFerguson Act, which provides that “ [tjhe business o f insurance, and every person engaged therein, shall be subject to the laws o f the several States which relate to the regulation or taxation o f such businesses." 1S U.S.C § 1012(a). A subsequent provision o f the Act provides that “ [njo Act o f C ongress shall be construed to invalidate, impair, or supersede any law enacted by any state for the purpose o f regulating the business of insurance, unless such A ct specifically relates to the business o f insurance ” Id § 10 12(b). Because we conclude that state regulation o f the A dm inistrators is not prohibited under general principles o f preem ption, we do not have to decide w hether the M cCarran-Ferguson Act would preclude preemption in any event. 29 aid, counsel, assist, and protect insofar as is possible, the interests of small business concerns in order to preserve free competitive enterprise.” 12 U.S.C. § 635(b)(1)(E).5 The Amendments also provide that one of the members of Eximbank’s board of directors is to “be selected from among the small business community .. . and represent the interests of small business.” Id. § 635(b)(l)(E)(v). Finally, the Amendments direct Eximbank to render reports on the allocation of sums set aside for small business. Id. § 635g(c). Notably lacking in the Amendments or their legislative history is any language which suggests that insurance brokers for exporters connected with an Eximbank program are relieved of the obligation to comply with state insurance require­ ments. Nor is there any suggestion that state insurance laws have proved an obstacle to the sale of Eximbank’s insurance to small business.6 Acknowledging that there is no direct conflict between state and federal law, Eximbank argues that state insurance regulation and licensing is preempted because by inhibiting certain kinds of corporations from becoming Administra­ tors such laws impose burdens on the means Eximbank has chosen to meet the congressional goal of developing export insurance for small business. How­ ever, courts have uniformly refused to displace state regulations applicable to federal contractors even if such regulations impose incidental burdens on the means of fulfilling a congressional mandate. See, e.g., Penn Dairies v. Milk Control C om m ’n, 318 U.S. 261, 271 (1943) (state can refuse to renew the license of a milk dealer who sold milk below the state minimum price to United States despite impact in United States’ procurement policy; “state regulations are to be regarded as the normal incidents within the same territory of a dual system of government”); James Stewart & Co. v. Sadrakula, 300 U.S. 94 (1939) (sanctioning state’s imposition of safety requirements upon a contractor constructing a federal building in the face of arguments that such regulations would raise the cost to the government); O ’Reilly v. Board o f Medical Examin­ ers, 426 P.2d 167 (Cal. 1967) (Traynor, C.J.) (refusing to infer federal preemp­ tion of state licensing rules for doctors even in light of burdens such licensing imposed on foreign medical exchange program authorized by Congress); United States v. Town o f Windsor, 496 F. Supp. 581, 591 (D. Conn. 1980) (upholding 5 In o rd er to assure that the policy of aid in g sm all business is carried out, Eximbank is directed to: prom ote sm all business export financing programs in cooperation w ith the Secretary of Com ­ m erce, the O ffice o f International T rade o f Small Business A dm inistration, and the private sector, particularly sm all business organizations, state agencies, cham bers o f com m erce, banking o rganizations, export management com panies, export trading com panies, and private industry. 12 U .S.C . § 6 3 5 (b )(I)(E )(v iii). 6 In a hearing before a subcomm ittee o f the Senate C om m ittee on Sm all B usiness, the C hairm an o f E xim bank described the proposed “um brella” insurance program for small businesses but now here suggested th at th is program w ould require the abrogation o f state insurance regulation or licensing schemes. To the con trary , one o f the them es o f the C hairm an’s testimony was that he had cooperated with state agencies in the past and expected to continue to work clo sely w ith them in the future. Financing o f Small Business Exports by The Export-Import Bank: Hearing before the Subcomm. on Export Promotion and Market Development o f the Senate Comm, on Small Business, 98th C ong., 1st Sess. 8 - 9 (1983) (“ W e have m et several times with rep resen tativ es o f state governments an d we w ill continue to work closely with them as*the cam paign dev elo p s.” ). 30 state’s right to require building permit of contractor who was building gasifica­ tion plant pursuant to congressional mandate to develop a more efficient means of utilizing coal). An essential rationale underlying these cases is that state regulation of private contractors, unlike state regulation of federal instrumen­ talities or federal officials, cannot be viewed as superfluous, because the federal ties government does not directly supervise private contractors even when they ties act as its agents. This rationale applies a fortiori to the Adminis­ trators who are not even agents of the federal government and are not subject to any federal supervision. Therefore, we conclude that in the absence of some contrary indication of congressional intent states are not preempted from regulating private entities even if such regulations impose some burdens on their participation in a federal program.7 When Congress establishes an objective for a federal agency, it is to be presumed that it wishes the agency to pursue the objective against the background of ordinary state regulation of private entities because such regula­ tion has legitimate objectives of its own. Any other conclusion would curtail the ability of the states to protect the welfare of their citizens: federal agencies possessed of some statutory mandate would acquire the authority to grant immunity from state regulation to private entities simply on the grounds that such immunity would lead to the more efficient fulfillment of their mandate.8 Conclusion On the basis of the analysis set forth above, we have concluded that the Administrators are subject to non-discriminatory state regulation. D ouglas W. K m ie c Deputy Assistant Attorney General Office o f Legal Counsel 1 Fidelity Federal Savings & Loan Ass'n v. De La Cuesta, 458 U.S. 141 (1982), a case principally relied on by Eximbank to support its argum ent that the 1983 Export-Im port Bank A mendments preem pt state insurance licensing requirem ents does not change the foregoing analysis. In Fidelity , the Federal Home Loan Bank Board had issued a regulation providing that a federal savings and loan association continued to have the pow er to include a due-on-sale provision in its loan agreem ents. Id. at 146-47. The pream ble to the regulation also stated that the banks would not be subject to any conflicting state law with respect to due-on-sale provisions. Id. at 147. The C ourt held that the B oard’s due-on-sale regulations preem pted conflicting state lim itations on the due-on-sale provisions o f a federal savings bank. Id. at 1SS. Fidelity thus sim ply represents an instance o f federal preem ption arising from an express conflict betw een state and federal laws. It stands for the proposition that a duly prom ulgated and authorized regulation o f an agency has the sam e pow er to preem pt contrary state law as a statute passed by the C ongress. Fidelity does not support the argum ent for the preem ption o f state insurance regulation because neither any provision o f the statute under which Exim bank operates nor any regulation issued by Eximbank conflicts with state law. 8 O ur opinion that the A dm inistrators w ould ordinarily be subject to State regulation is not inconsistent w ith the argum ents advanced in Squire, Inc. v. Export-Import Bank o f the United States, No. 84-0 2 3 4 (S.D . Cal. 1985), that Exim bank and the FCIA should not be subject to punitive dam ages. First, the argum ent in Squire is not based on a claim that the federal statute preem pts all state regulation, but rather that in litigation arising out o f nationw ide program s in the param ount federal interest com pels the application o f federal law to questions o f liability in governm ental program s and transactions. See United States v Little Lake Misere Land Co., 412 U .S. 580, 5 9 2 -9 4 (1974); Clearfield Trust Co. v. United States, 318 U.S. 363 (1943). Second, this m em orandum does not address w hether ^xim bank o r the FCIA may be immune from state regulations on the ground that they are federal instrum entalities. 31

Write a legal research memo on the following topic.

May 22, 1979 79-34 MEMORANDUM OPINION FOR THE ACTING CHIEF, ORGANIZED CRIME AND RACKETEERING SECTION, CRIMINAL DIVISION Office o f Legal Counsel—Limitation on Opinion Function This confirms the advice we gave orally concerning your May 18 memo­ randum concerning a requested Office o f Legal Counsel opinion. You state that a Federal district judge has asked for our opinion on an issue that has arisen in connection with a pending grand jury investigation. That issue is whether the Department o f Justice has the authority to investigate possible violations o f title 18, involving pension plans covered by the Employee Retirement Income Security Act, 29 U .S.C . § 1001 et seq. As I indicated orally to you previously, it would not be appropriate in this cir­ cumstance for us to render a legal opinion. The Attorney General has delegated certain responsibilities to the Office o f Legal Counsel, including the preparation o f his formal opinions and advice to Government agencies. 28 CFR § 0.25. That delegation does not authorize us to provide legal advice at the request o f the judicial branch. Moreover, the opinion function o f the Attorney General himself is limited by statute to the provision o f advice to the President, the heads o f execu­ tive departments, and the Secretaries o f military departments. 28 U.S.C. §§ 511-513. In addition to those restrictions on our opinion function, we note that this Department has, as a m atter o f policy, consistently refrained from opining on questions presented to the courts for resolution. The Attorney General has stated, for example: [T]his Department has uniformly refused to consider any ques­ tions that have been committed to judicial review. To do so might bring this Department into conflict with a Judicial tribunal, and this has been held to be an adequate reason for a refusal to give an official opinion. [24 Op. A tt’y Gen. 59, 60 (1902).] 215 Similar statements appear in num erous other opinions o f the Attorneys General. See, e.g., 41 Op. A tt’y Gen. 266, 273 (1956); 38 Op. A tt’y Gen. 149, 150 (1934); 37 O p. A tt’y Gen. 34, 42 (1932). Since the question you have asked us is pending before the court, we do not believe it would be appropriate for us to respond to the request. John M. Harm on Assistant A ttorney General Office o f Legal Counsel 216

Write a legal research memo on the following topic.

Authority of the General Services Administration to Provide Assistance to Transition Teams of Two Presidential Candidates T h e P residential T ransition A ct of 1963, with certain lim ited exceptions, authorizes the A dm inistrator o f the G enera1 S ervices A dm inistration to provide transition assistance only for those services and facilities n ecessary to assist the transition o f the “ P resident-elect” and the “ V ice-President-elect,” as those term s are defined in the A c t. Since there cannot be m ore than one “ President-elect” and o n e “ V ice-P resident-elect” u n d e r the Act, the Act does not authorize the A dm inistrator to p ro v id e transition assistance to the tran sitio n team s o f m ore than one presidential candidate. November 28, 2000 M em orandum O p in io n fo r t h e C ou n sel to th e P r e s id e n t You have asked our opinion whether, under the Presidential Transition Act of 1963, as amended,1 the Administrator of the General Services Administration (“ Administrator” ) has the authority to provide transition assistance to more than one presidential candidate in circumstances in which it remains unclear after the election which of two candidates will become the President of the United States. With the limited exceptions set forth below in note 3, the Act authorizes the Administrator to expend the funds appropriated to implement the Act only for those services and facilities that are necessary to assist the transition of the “ President-elect” and the “ Vice-President-elect.” See Presidential Transition Act, § 3(a). The terms “ President-elect” and “ Vice-President-elect” are defined under the Act to mean the individuals that the Administrator determines are “ the apparent successful candidates for the office of President and Vice-President, respectively.” Id. §3(c). Since there cannot be more than one “ President-elect” and one “ Vice-President-elect” under the Act, the Presidential Transition Act does not authorize the Administrator to provide transition assistance to more than one transition team.2 As summarized above, the assistance that the Administrator is authorized to provide under the Presidential Transition Act is expressly tied to the Administra­ tor’s determination of a “ President-elect” and a “ Vice-President-elect.” “ Presi­ dent-elect” and “ Vice-President-elect” are defined terms under section 3(c) of the Act, which provides: The terms “ President-elect” and “ Vice-President-elect” as used in this Act shall mean such persons as are the apparent successful candidates for the office o f President and Vice President, respec­ ‘ The Presidential Transition Act is set out in the notes to § 102 of title 3 of the United States Code See 3 U S C. § 102 (1994). The Act has also recently been amended For those amendments, see Presidential Transition Act o f 2000, Pub L No 106-293, 114 Stat. 1035 (2000). 2 This m emorandum addresses only the narrow question o f the Administrator’s authority to provide assistance under the Presidential Transition Act It does not address w hether the Administrator, or any other department or agency, may have separate authonty to provide transition assistance to more than one transition team. 322 GSA Authority to Provide Assistance to Transition Teams o f Two Presidential Candidates tively, as ascertained by the Administrator following the general elections held to determine the electors of President and Vice Presi­ dent in accordance with title 3, United States Code, sections 1 and 2. Id. § 3(c). As a matter of the statutory definition, as well as common usage, there can be only one “ President-elect” and “ Vice-President-elect” from any election. It is only to that “ President-elect” and that “ Vice-President-elect” that the Administrator is authorized by the Act to provide transition assistance. Section 3(a) of the Act, which sets out the services and facilities that the Administrator is authorized to provide, specifically states: The Administrator of General Services . . . is authorized to pro­ vide, upon request, to each President-elect and each Vice-Presidentelect, for use in connection with his preparations for the assumption of official duties as President or Vice President necessary services and facilities, including [the assistance specifically identified in subparagraphs (a)(1) through (a)(10)]. Id. §3(a). Accordingly, by its terms, the Act generally authorizes assistance only to the “ President-elect” and the “ Vice-President-elect.” Consistent with this gen­ eral structure, the subparagraphs within subsection 3(a), which list specific serv­ ices and facilities that the Administrator is authorized to provide, also generally make explicit reference to the President-elect and the Vice-President-elect. For example, subparagraph 3(a)(2) authorizes the payment of compensation to the “ members of the office staffs designated by the President-elect or Vice-Presidentelect.” Without the existence of a President-elect or Vice-President-elect, there can be no staff who have been designated and to whom compensation may there­ fore be paid. See id. § 3(a)(2) (emphasis added); see also id. §§ 3(a)(1), (3)-(5), (7), 3(b), 3(d), 3(e).3 Similarly, the provisions in section 5 of the Act for the disclosure of financing and personnel information related to the transition are also expressly premised on, and limited to, the “ President-elect” and the “ Vice-President-elect.” Each subsection in section 5 begins with language along the lines 3 The only exceptions to the general structure o f section 3 limiting assistance to a “ President-elect” are two provisions from the 2000 amendments that appear to envision the expenditure of funds pnor to the determination of a “ President-elect” See Pub. L No. 106-293, §3 (relevant provisions added as subparagraphs (9) and (10) of the Presidential Transition Act) These additional provisions, by their distinct language and functions, reinforce the general limitation lhat assistance may be provided only to a “ President-elect.” In particular, subparagraph (10) expressly provides that it applies to the “ candidates.” See Presidential Transition Act, §3(a)(10) ( “ Notwithstanding subsection (b), consultation by the Administrator with any candidate for President or Vice President to develop a systems architecture plan for the computer and communications systems of the candidate to coordinate a transition to Federal systems, if the candidate is elected.” (emphasis added)) Subparagraph (9) involves the development by the General Services Administration o f a transition directory on the officers, organization, and statutory and administrative authorities, functions, duties, responsibilities, and mission of each department and agency— expendi­ tures that are preparatory to transition for whomever is determined to be the “ President-elect” and that are not materially altered by multiple transition teams since the directory would remain the same 323 Opinions of the Office o f Legal Counsel in Volume 24 of the following: “ The President-elect and Vice-President-elect (as a condition for receiving services under section 3 and for funds provided under section 6(a)(1)) shall disclose to the Administrator . . . E.g., id. § 5(a)(1) (emphasis added); see also §§ 5(b)(1), 5(c). We thus believe that both the specific terms and the general structure of the Act preclude the Administrator from relying upon this Act to provide assistance to more than one transition team. The most plausible contrary argument for providing assistance to multiple transi­ tion teams, notwithstanding the clear language and structure of the Act, would be that such assistance is necessary under present circumstances because of the shortened time period for the transition. In support of this argument, it is clear, both in the section of the Act stating Congress’s purpose and similar expressions of purpose in the legislative history, that the Act was intended “ to promote the orderly transfer of executive power.” Id. § 2. In this regard, the Act states: Any disruption occasioned by the transfer of the executive power could produce results detrimental to the safety and well-being of the United States and its people. Accordingly, it is the intent of the Congress that appropriate actions be authorized and taken to avoid or minimize any disruption. Id. See also, e.g., H.R. Rep. No. 88-301, at 4 (1963) ( “ [T]he size and complexity of our Federal Government today, to say nothing of the difficult domestic and international problems that the President must face, make it a vital necessity that the machinery of transition be as smooth as possible and that sufficient resources are at hand to properly orient the new national leader in whatever manner is required. . . . Under present conditions, a new President, in one sense, begins working for the Government the morning after the election.” ); 109 Cong. Rec. 13,349 (1963) (statement of Rep. Joelson) (“ In that interim time he is called upon probably to make more fateful decisions than he will have to make after he is, indeed, sworn into office. For that reason it is up to us to see that he has the tools and the implements.” ). We doubt that this expression of intent would, in any event, be sufficient to overcome the evidence from the express terms and structure of the Act that funds appropriated to implement the A ct are not available in circumstances in which the Administrator cannot ascertain who the apparent victorious candidate is. The legislative history, moreover, makes clear that Congress did not intend the Presi­ dential Transition Act to be available until an apparent President-elect emerged. During debate on the bill, concern was raised about the effect that an Adminis­ trator’s determination of the “ President-elect” could potentially have on a close election. See 109 Cong. Rec. 13,348-49 (1963). As part of that debate, Represent­ ative Gross expressed the concern that, in connection with the voting of the elec­ toral college, “ those designated as President and Vice President by the present 324 GSA Authority to Provide Assistance to Transition Teams o f Two Presidential Candidates Administrator of General Services would be given psychological and other advan­ tages by designating them as President and Vice President.” Id. at 13,348. In response, Representative Fascell, who was the sponsor of the bill and the House manager, stated as follows: “ I do not think so, because if they were unable at the time to determine the successful candidates, this act would not be operative. Therefore in a close contest, the Administrator would not make the decision.” Id. (emphasis added). Representative Gross, however, remained concerned and continued to press the issue. In response to those further inquires, Representative Fascell again responded: “ There is nothing in the act that requires the Adminis­ trator to make a decision which in his own judgment he could not make. If he could not determine the apparent successful candidate, he would not authorize the expenditure o f funds to anyone; and he should not." Id. (emphasis added). Representative Gross was not the only member concerned about the issue, which was raised again later in the debate by Representative Haley: I notice that these funds can be used immediately after the gen­ eral election in November. But how would this situation work, for instance, if the President or, at least, before the determination of the votes in the electoral college, suppose that some person was, say, three or four votes shy? How would this Administrator deter­ mine who was in a position to expend these funds? Id. at 13,349. In response, Representative Fascell quoted the section of the bill defining “ President-elect” and “ Vice-President-clcct” and stated: This act and the Administrator could in no way, in any way, affect the election of the successful candidate. The only decision the Administrator can make is who the successful candidate — the apparent successful candidate — for the purposes of this particular act in order to make the services provided by this act available to them. And, if there is any doubt in his mind, and if he cannot and does not designate the apparently successful candidate, then the act is inoperative. He cannot do anything. There will be no services provided and no money expended. Id. (emphasis added). See also id. (statement of Rep. Fascell) (“ In the whole history of the United States, there have been only three such close situations. It is an unlikely proposition, but if it were to happen, if the administrator had any question in his mind, he simply would not make the designation in order to make the services available as provided by the act. If as an intelligent human being and he has a doubt, he would not act until a decision has been made in the electoral college or in the Congress.” ). 325 Opinions of the Office o f Legal Counsel in Volume 24 It is clear from the legislative history that Congress understood and intended that the Presidential Transition Act would simply be unavailable to fund transition services and facilities in circumstances in which the winner o f the election is not apparent. This is consistent with the plain language and structure of the Act, which, with the two exceptions noted above in note 3, authorizes the Administrator to provide transition assistance only to the “ President-elect” and the “ Vice-President-elect.” Accordingly, the Presidential Transition Act would not authorize the Administrator to expend the funds appropriated to implement the Act to provide transition assistance to multiple transition teams. RANDOLPH D. MOSS Assistant Attorney General Office o f Legal Counsel 326

Write a legal research memo on the following topic.

Procedures for Implementing the Reciprocity Provisions of the Mineral Leasing Act of 1920 While the Departm ent o f Interior has no legal obligation to adopt substantive, prospec­ tive standards for applying the “reciprocity” provision of 30 U.S.C. § 181, if it chooses to do so it should comply with the public, notice-and-comment procedures applicable to agency rulemaking under the Administrative Procedure Act (APA). If the D epart­ ment of the Interior instead continues to determine on a country-by-country basis whether another country’s laws and regulations accord American investors “similar or like privileges,” APA procedures would not be considered applicable to such decision­ making. However, an adequate record for judicial review o f the substance o f the ultimate decision should be made. As previously 'concluded, the Secretary o f the Interior has authority under the Mineral Leasing A ct o f 1920 to “m irror" restrictive practices of another country. The question whether the Secretary is required to do k>, or whether he could choose to take some more extreme action such as barring any investment by the other country’s citizens, is not addressed. August 27, 1981 MEMORANDUM OPINION FOR THE UNDER SECRETARY, DEPARTMENT OF TH E INTERIOR You have requested this Department’s comments on certain proposed' actions that would implement the “reciprocity” provision of the Min­ eral Leasing Act of 1920, 30 U.S.C. § 181.1 I. Actions to Implement § 181 It is not clear to us precisely what your Department’s intent may be regarding the implementation of the “reciprocity” provision of § 181. If the intent is to promulgate general, substantive standards for the future governing the determination whether another country affords Ameri­ cans “similar or like privileges” under § 181, we would recommend adoption of public notice-and-comment procedures meeting the require­ ments of 5 U.S.C. § 553. Even though we do not believe your Depart­ ment has any legal obligation to adopt substantive, prospective stand1T he “reciprocity” provision is as follows. Citizens of another country, the laws, customs or regulations o f which deny similar or like privileges to citizens or corporations o f this country, shall not by stock ownership, stock holding, or stock control, own any interest in any lease acquired under the provisions o f this chapter. 30 U.S.C. § 181. 279 ards for applying § 181,2 if you do so a court likely would conclude that such action comes within the definition of “rule making” for purposes of the Administrative Procedure Act (APA).3 Although an argument might be made that such rulemaking is exempt from the requirements of § 553 on the ground that is involves a foreign affairs function of the United States, 5 U.S.C. 553(a)(1), that argument would be difficult to sustain so long as your Department’s intent is to enunciate general standards for application of the statutory phrase “similar or like privileges” apart from specific consideration of this Nation’s relations with another country.4 Furthermore, since your De­ partment in the past has not enunciated general standards implementing §181, a public notice-and-comment procedure consistent with §553 designed to promulgate standards for applying § 181’s “similar or like privileges” provision could well generate comments that may prove useful in framing the final standards. Finally, if your intention is to conduct a rulemaking, it is not a great deal more cumbersome to comply with § 553, and if you are going to go part of the way, it would be prudent to go all of the way and avoid any possible claim that § 553 was violated. To the extent that this is your intent, the notice-andcomment procedure should include at a minimum the following ele­ ments: (1) general notice to be published in the Federal Register, including a statement of the time, place, and nature of the proceedings, a reference to the legal authority under which the rule is to be promul­ gated, and either the terms or substance of a proposed rule or “a 2T here is no requirement in the Mineral Leasing Act of 1920 that the Secretary of the Interior prom ulgate rules to implement § 181. However, the A ct clearly authorizes such action: “The Secretary o f the Interior is authorized to prescribe necessary and proper rules and regulations and to do any and all things necessary to carry out and accomplish the purposes o f this chapter. . . 30 U.S.C. § 189. 3 A “rule” is defined broadly by the APA as “the whole o r part of an agency statement of general o r particular applicability and future effect designed to implement, interpret, o r prescribe law or policy. . . 5 U.S.C. §551(4), and a “rule making" is defined as the “agency process for formulat­ ing, amending, o r repealing a rule,” 5 U S .C . §551(5). The paradigm of APA rulemaking is “the implementation or prescription o f law or policy for the future, rather than the evaluation of a respondent’s past conduct. Typically, the issues relate not to the evidentiary facts, as to which the veracity and demeanor of witnesses would often be important, but rather to the policy-making conclusions to be draw n from the facts.” Attorney General's Manual on the Administrative Procedure Act 14 (1947), quoted in American Airlines, Inc. v. CAB, 359 F.2d 624, 629 (D.C. Cir. 1966); See also S. Rep. No. 752, 79th Cong., 1st Sess. (1945), reprinted in S. Doc. No. 248, Administrative Procedure Act— Legislative Historyt 79th Cong., 2d Sess. 199 (1946). W hatever else may be said about the applicability o f the A P A ’s definitions of a “rule’* and “ rule m aking/’ they would appear to apply to a process in w hich the Departm ent of the Interior establishes general, substantive standards “for the future’1 governing w hether another country accords American citizens “similar or like privileges" under 30 U.S.C. § 181. 4See S. Rep. No. 752, 79th Cong., 1st Sess. 11 (1945) (the foreign affairs exception “is not to be loosely interpreted to mean any function extending beyond the borders of the United States but only those ‘affairs' w hich so affect relations with other governments that, for example, public rule making provisions would clearly provoke definitely undesirable international consequences’’), reprinted in S. D oc. No. 248, Administrative Procedure Act—Legislative History, 79th Cong., 2d Sess. 199 (1946), Hou Ching Chow v. Attorney General, 362 F Supp. 1288, 1290 (D. D.C. 1973) (holding that determinations regarding the adjustment of an alien’s status and labor certification requirements are not exempt as foreign affairs functions). Cf. WBEN, Inc. v. United States, 396 F.2d 601, 616 (2d Cir.), cert, denied 393 U.S. 914 (1968) (holding, inter alia, that the FC C was on “firm ground" in concluding that negotiation by the United States on a new agreement with Canada regarding pre-sunrise broadcasting on AM radio was an exempt foreign affairs function). 280 description of the subjects and issues involved”; (2) an opportunity for interested persons to participate through submission of written data, views, or arguments with or without opportunity for oral presentation; and (3) a concise general statement of the basis and purpose of the rules ultimately promulgated, including a discussion of major comments re­ ceived from interested persons.5 On the other hand, your Department may not intend to promulgate general, prospective standards implementing the “reciprocity” provision of § 181. Rather, it may intend to continue to determine on a countryby-country basis whether another country’s laws and regulations accord Americans “similar or like privileges.” Although an argument could be made that such country-by-country decisionmaking should be governed by § 553 rulemaking, we do not believe, as we have indicated orally, that § 553 or other provisions of the Administrative Procedure Act should be considered applicable to such decisionmaking.6 First, the determination whether another country’s laws and regulations accord “similar or like privileges” requires an assessment of the facts—regard­ ing the way another country’s laws affect investment by Americans as compared with the way this country’s laws affect investment by that country’s citizens—at the time the decision is made. It thus is in the nature of a backward-looking evaluation of facts in light of existing statutory requirements. That decision is not of a type covered by “rule makings” for APA purposes, which are geared toward the promulga­ tion of general standards “for the future.” 7 Second, even if such a decision about another country were to be considered covered by the APA’s definitions of a “rule” and “rule making,” so long as the deci­ sion is directed—as it presumably would be—toward interpreting offi­ cial acts of a foreign government and ascertaining what responses the United States might make to restrictive laws or regulations of the other country, such a decision would be within the foreign affairs exemption from § 553 procedures. See 5 U.S.C. § 553(a)(1); S. Rep. No. 752, 79th Cong., 1st Sess. (1945), reprinted in S. Doc. No. 248, Administrative Procedure Act—Legislative History, 79th Cong., 2d Sess. 199 (1946). If your Department were to proceed on a country-by-country basis and not adopt public notice-and-comment procedures for establishing general standards governing whether another country accords “similar or like privileges,” it would be necessary to bear in mind that judicial review of informal, case-by-case decisions not covered by § 553 may be obtained in appropriate cases. In particular, a decision whether another 5 In addition, the notice-and-comment procedures should conform with the Department’s own regulations governing its rulemaking activities, see 43 C.F.R. Part 14, and with Executive O rder No 12,291, 46 Fed. Reg. 13,193 (1981). 6The Mineral Leasing A ct of 1920 does not require that determinations under § 181 be made “on the record” after opportunity for agency hearing. Thus, the APA procedures for “on the record” determinations do not apply. See 5 U.S.C. §§ 553(c), 554, 556, & 557 1See n 3, supra. 281 country accords “similar or like privileges” could be challenged as contrary to the substantive requirements of § 181 (e.g., on the ground that a legally incorrect interpretation of § 181 was applied), or as “arbitrary” or “capricious” in the context in which it was made (e.g., on the ground that there was no rational basis on which the Secretary could make such a determination). See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971); Camp v. Pitts, 411 U.S. 138, 142 (1973). Thus, if a country-by-country approach were taken, your De­ partment would need to follow a decisionmaking process that would provide an adequate record for judicial review of the substance of the ultimate decision. We do not believe, however, that any statute, includ­ ing the Administrative Procedure Act, requires that a particular process be followed.8 II. The Substance of § 181 I am attaching for your information an opinion of this Office, dated August 11, 1981, discussing the question whether the Secretary may “mirror” restrictive practices of another country, thereby restoring “similar or like privileges” under § 181 and averting the need to bar “any” interest in “any” lease by citizens of the other country.* We concluded that the Secretary has such “mirroring” authority under the Mineral Leasing Act o f 1920. We understand that this conclusion is consistent with the practice of the Department of the Interior, which on at least two occasions has “mirrored” other countries’ restrictions pertaining to the percentage of foreign ownership of corporations having interests in those countries’ mineral resources.9 T h e o d o r e B. O l so n Assistant Attorney General Office o f Legislative Affairs 8O ur discussion of the procedures for implementing § 181 has focused on the question that appears central to your Department’s present concern, namely, how to establish a process for determining w hether another country accords “ similar or like privileges.” Once such a determination is made, further questions are likely to arise regarding the appropriate means for applying a determination about a given country to particular parties seeking federal mineral leases. We would be glad to assist in resolving such questions as they arise. • N o te : T he August 11, 1981 Memorandum Opinion, “Restrictions on Canadian Ownership of Federal Mineral Leases Under the Mineral Leasing A ct of 1920,” is reprinted in this volume at p. 250, supra. Ed. 9 We would not want this memorandum or our opinion o f August 11, 1981, to be understood as resolving the additional question w hether, assuming the Secretary could as a practical matter “mirror” another country’s restrictions on foreign investment, the Secretary would be bound to do that, or w hether he could choose whether to do that or to take a more extreme action such as barring “any” investment by the other country's citizens in federal mineral leases. We have not addressed that issue. W e suggest that specific attention be given this question if the Secretary would consider taking more restrictive action than “ mirroring” under § 181. 282

Write a legal research memo on the following topic.

October 20, 1978 78-58 MEMORANDUM OPINION FOR THE DIRECTOR, COUNCIL ON WAGE AND PRICE STABILITY Federal Property and Administrative Services Act of 1949 (40 U.S.C. § 481)—Government Contracts— Wage and Price Standards in Government Procurement This responds to your request for our opinion on several legal questions concerning an administration proposal to require the observance of wage and price guidelines by corporations and individuals as a condition for doing business with the Federal Government. We believe that the President has the statutory authority to require Government contractors to comply with wage and price guidelines as a prerequisite for doing business with the Government. This view was upheld in AFL-CIO v. Kahn, 48 U.S.L.W. 2005 (D.C. Cir. June 22, 1979), cert, denied, 443 U.S. 915 (July 2, 1979). We also believe that the Government can require Government contractors to receive from their subcon­ tractors and suppliers certificates that the latter are in compliance with wage and price guidelines with regard to the products and services involved in contracts related to the contractors’ Government work. I. The President’s Power to Establish Procurement Policies In § 201 of the Federal Property and Administrative Services Act of 1949 (“ 1949 Procurement Act” ), 40 U.S.C. § 481, Congress established that Government procurement policies must be designed to promote “ economy” and “ efficiency” in Government procurement. In § 205(a) of the 1949 Procurement Act, 40 U.S.C. on § 486(a), Congress specifically conferred on the President the power to . . . prescribe such policies and directives, not inconsistent with the provisions of this Act, as he shall deem necessary to effectuate the provisions of said Act, which policies and directives shall govern the Administrator [General Services] and executive agencies . . . . As interpreted by the United States Court of Appeals for the Third Circuit, § 205(a) grants broad discretion to the President to protect and advance a range 239 of governmental interests, including “ the interest of the United States in all procurement to see that its suppliers are not over the long run increasing its costs . . . Contractors Association of Eastern Penrtyslvania v. Secretary of Labor, 442 F. (2d) 159, 170 (3d Cir. 1971), cert, denied, 404 U.S. 854 (1971). In the Contractors case, the Third Circuit considered and affirmed the validity of the “ Philadelphia Plan” promulgated pursuant to Executive Order No. 11246, 3 CFR 406 (1969), 42 U.S.C. § 2000e note. The Third Circuit, as well as other courts of appeals, have consistently upheld the principle that § 205(a) of the 1949 Procurement Act confers on the President the power to require nondiscrimination provisions in all Government contracts. See, e.g., Farkas v. Texas Instrument, Inc., 375 F. (2d) 629 (5th Cir. 1967), cert, denied, 389 U.S. 977 (1967); Southern Illinois Builders Association v. Ogilvie, 327 F. Supp. 1154 (S.D. 111. 1971), affd, 471 F. (2d) 680 (7th Cir. 1972). Prior Attorneys General have also opined that Executive Order No. 11246 and its predecessors were valid exercises of statutory authority. See 42 Op. A.G. 97 (1961) (sustaining validity of Executive Order 10925); 42 Op. A.G. 405 (1969) (sustaining validity of revised “ Philadelphia Plan” ). In its most recent encounter with a challenge to Executive Order No. 11246, the United States Court of appeals for the Fifth Circuit observed that decisions of other courts of appeals had “ candidly acknowledged the validity of the use by the President or Congress of the procurement process to achieve social and economic objectives.” United States v. New Orleans Public Services, Inc., 553 F. (2d) 459, 466-67 (5th Cir. 1977), vacated on other grounds, 436 U.S. 942 (1978).1 We believe that the backdrop formed by New Orleans Public Service and prior cases interpreting § 205(a) of the 1949 Procurement Act suggests that in order to assess the general validity of a program requiring compliance with the wage and price guidelines as a condition for doing business with the Government, two questions must be considered. First, is such a program authorized under the 1949 Procurement Act? Second, is such a program inconsistent with any other statutes? A. Authority Under the 1949 Procurement Act. We conclude that the 1949 Procurement Act authorizes the proposed requirement of compliance with the wage and price guidelines. The general purpose of the proposed program—to lower costs to the Government of the goods and services it purchases— is clearly consistent with the purposes of the Act. Nor does the program conflict with any specific provision of the Act. 'In support of this statement, the court cited Roseni Contracting Co. v. Brennan, 508 F. (2d) 1039, 1045 n. 18 (7th Cir. 1975), and Northeast Construction Co. v. Romney, 485 F. (2d) 752,760 (D.C. Cir. 1973). B. Inconsistency With Other Statutes. The question whether the program as devised is inconsistent with other statutes raises more subtle and difficult problems. In the New Orleans Public Service case discussed above, the Fifth Circuit accepted the Government’s contention that Executive Order No. 11246 was authorized not only by § 205(a) of the 1949 Procurement Act, but also by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Equal Employment Opportunity Act of 1972, 86 Stat. 103, which amended Title VII. The court concluded that the order represented “ a long standing program which Congress has recognized and approved.” 553 F. (2d) at 467.2 The court’s analysis suggested that the 1949 Procurement Act, standing alone, did not provide sufficient authority for the order but for the fact that it was supported by a long history of the use of the procurement process to combat discrimination against minorities, a use that had been, in effect, ratified by the Congress. We are unaware of any statute other than the 1949 Act which might be viewed as a source of statutory authority for this program. Implicit in the Fifth Circuit’s opinion and its discussion of Youngstown Sheet & Tube, note 2, supra, was the assumption that if Congress had passed some other statute which was inconsistent with the order, then the court may have ruled differently on the validity of the order.3 It follows that a statute inconsistent with this wage and price program would be viewed as a limitation on the power conferred by § 205(a) of the 1949 Procurement Act. The lack of other supportive statutory authority to implement this program does not pose a significant problem, primarily because the program is demonstrably more closely related to the purposes of the 1949 Procurement Act than the antidiscrimination programs established by Executive Order No. 11246 and its predecessors. Thus, while courts may have felt obliged in Executive Order No. 11246 cases to look for additional statutory support for the antidiscrimination policies embodied in the order, we believe that the 1949 Procurement Act itself provides an ample statement of relevant national policy and authority—to procure goods and services for the Government in an economical fashion. We now turn to the more difficult question, whether the program would conflict with some other statute. We believe that those aspects of the program requiring individuals and companies doing business with the Government to 2In a footnote accompanying this conclusion, the court dismissed an argument that Executive Order No. 11246 constituted executive “ lawmaking” of the type prohibited by the Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer. 343 U.S. 579 (1952). See 553 F. (2d) at 467-68, n. 8. 3Such an assumption has been adopted in virtually all cases prior to New Orleans Public Service in which the validity of Executive Order No. 11246 has been challenged and upheld. See, Southern Illinois Builders Ass'n v. Ogilvie, 327 F. Supp. 1154, 1162 (S.D. III. 1971), a ffd , 471 F. (2d) 680 (7th Cir. 1972), Joyce v . McCrane, 320F. Supp. 1284, 1291 (D. N.J. 1970); Contractors Ass' n of Eastern Pennsylvania'/. Secretary o f Labor, 442 F. (2d) 159, 171-175 (3d Cir. 1971), cert, denied, 404 U.S. 854 (1971). 241 avoid price increases beyond a specified level may be inconsistent with 50 U.S.C. App. § 645b. That provision reads as follows: Nothing contained in this Act or any other Federal Act (except the Emergency Price Control Act of 1942, as amended, the Stabilization Act of 1942, as amended, or the District of Columbia Emergency Rent Act, approved December 2, 1941, as amended), shall be construed to authorize the establishment by any officer or agency of the Government of maximum prices for any commodity or maximum rents for any housing accommodations. The provision would appear to impose on the executive and judicial branches a rule of statutory construction that would prohibit a finding of implicit, as opposed to explicit, power in any Federal statute to establish “ maximum prices” for “ any commodity,” 4 whether the commodity is sold solely within the private sector or to the Government. Because the setting of a percentage guideline beyond which a contractor may not increase his prices charged to the Government would appear as the setting of a “ maximum price,” it could be argued that § 645b, on its face, bars the President from utilizing the 1949 Procurement Act, or any other statute, to establish and enforce price guidelines even with regard to those who do business with the Government. The legislative history of § 645b does not clearly indicate whether the Congress passing the provision necessarily intended it to condition a subsequently enacted statute, here § 205(a) of the 1949 Procurement Act. In June of 1946, President Truman vetoed a bill which would have extended, as amended, the Emergency Price Control Act of 1942 (EPCA), 56 Stat. 23, because of his view that the bill was inadequate. Under the 1942 Act, discussed in greater detail below, the President was empowered to establish maximum prices with regard to a wide range of goods and services sold within the private sector and to the Government. In apparent anticipation of the President’s veto, a late amendment was added by Senator Moore to a bill extending various powers under the Second War Powers Act, 56 Stat. 176. Most titles of the Second War Powers Act expired or were repealed by June 30, 1950, but the Moore amendment had no express expiration date and it has never been repealed. Later in 1946, a law extending the EPCA (but not the Stabilization Act of 1942) was adopted. That law provided for ceilings on rents and most prices but added a number of important exceptions. We believe that the intent of Senator Moore and the Congress in adopting § 645b was limited to placing a prohibition on President Truman’s construing any then existing Federal statutes as conferring on him power to control prices until such time as he and the Congress resolved their dispute over the extension of the EPCA. We find nothing inconsistent with this interpretation of § 645b in the congressional debates on the Moore amendment, 92 Cong. Rec. 7312 ■*The meager legislative history of the provision suggests that its reference to prices of “ any com m odity" was intended to include the full range of goods and services included in the Emergency Price Control Act of 1942, 56 Stat. 23. See H. Rept. No. 2395, 79th Cong., 2d sess. (1946); 92 Cong. Rec. 7312, 7872, 7926 (1946). 242 (1946). In addition, we are unable to find any evidence that any Congress subsequent to the Seventy-ninth has viewed § 645b as having continued vitality.5 With regard to those aspects of the proposed program that require compli­ ance with wage guidelines by employers doing business with the Government, a potential problem is presented by the Davis-Bacon Act, 40 U.S.C. § 276a, which generally requires Government contractors to pay minimum levels of wages to their employees. Should wages in the private sector rise at a greater rate than that established by the wage guidelines to be issued under this program by the Council on Wage and Price Stability, it may become necessary for the President to exercise his authority under 40 U.S.C. § 276a-5, § 6 of the Davis-Bacon Act, to suspend application of the Act.6 In addition, under Title II of the National Emergencies Act o f 1972, Pub. L. No. 94-412, a Presidential declaration of national emergency required in order to suspend Davis-Bacon would be subject to veto by a concurrent resolution of the Congress. We believe that the so-called legislative veto device such as that contained in the 1976 Act is unconstitutional. However, this issue has not yet been resolved by the courts and, therefore, were Congress to pass such a concurrent resolution, we may anticipate a suit to be filed attempting to block the suspension. In considering whether the use of wage and price guidelines to control the price of goods and services to the Government is inconsistent with statutes other than the 1949 Procurement Act, we believe it is important to recognize that there is no history of the use of such guidelines. This is important because most of the decisions upon which we would rely in litigation—those upholding Executive Order No. 11246—were decided several decades after President Roosevelt first implemented an anti-discrimination program in 1941. See Executive Order No. 8802. When the courts finally came to pass on the validity of Executive Order No. 11246, the authority to issue that order and its predecessors was historically well established. In contrast, the history of mandatory wage and price controls from World War II to the present suggested a pattern of tight congressional control over both the delegation of power to the President and over its exercise. Moreover, control of the wages and prices of Government contractors has always been treated as part of general controls over the entire economy. On April 11, 1941, President Roosevelt established the Office of Price Administration and Civilian Supply. Executive Order No. 8734, 6 Fed. Reg. 5It could not be successfully contended that the 1949 Act implicitly repealed the Moore amendment given the burden usually imposed on those arguing that a statute has been repealed by implication. See, Tennessee Valley Authority v. Hill, 437 U.S. 153, 187 (1978). 6The experience of this office with a previous suspension of Davis-Bacon in 1971 suggested several problems that we may expect to arise should that Act or any one of some 6 1 other similar statutes identified in 1961 require suspension. First, any suspension should be applied prospectively. Second, some contractors who deal with the Government may also be subject to State laws similar to Davis-Bacon. See, e.g., N.Y. Labor Law, Art. 8; Cal. Labor Code §§ 1771 et seq. This office concluded in 1970 that suspension of Davis-Bacon would have the effect of suspending or pre­ empting any applicable State laws. 243 1917. That agency was empowered to issue formal price schedules, but relied for enforcement solely on publicity and persuasion. One of the functions conferred on the agency by § 2(d) of the order was to Advise and make recommendations to other departments and agencies . . . in respect to the purchase or acquisition of materials and commodities by the Government [and] the prices to be paid there­ for . . . . On July 30, 1941, President Roosevelt transmitted to Congress a message requesting legislative authority to deal with the impact of inflationary price rises.7 The President pointed out that one consequence of the inflationary spiral was the increase in “ [c]osts to the Government.” In asking for the legislation, the President also stated that, “,[l]ike other defense legislation, it should expire with the passing of the need, within a limited time after the end of the emergency.” The 77th Congress responded by enacting the Emergency Price Control Act of 1942. Section 1(a) declared two purposes of that Act to be: (1) insuring “ that defense appropriations are not dissipated by excessive prices” ; and (2) preventing “ hardships” that would befall “ Federal, State, and local govern­ ment, that would result from abnormal increases in prices.” But Congress did not grant power to control wages, and in the Senate report on the Act it was stated that wage controls . . . could, in no event, be acceptable unless coupled with direct and specific determination of the salaries of management, the dividends of stockholders, the interest payments received by bondholders, the incomes of fanners or merchants of professional persons and of all others.8 The EPCA also dealt specifically with the regulation of the prices of agricultural commodities, proscribing any control until those prices exceeded 110 percent of parity or the levels reached during any one of three previous periods, whichever was highest. On October 2, 1942, Congress passed the Stabilization Act, 56 Stat. 765, which gave the President the power to impose ceilings over agricultural prices and to forbid wage raises that had not been approved by the War Labor Board. Under § 5(a), the Government was entitled to disregard wage payments ruled to be illegal for several purposes, including, inter alia, “ compensation under cost-plus contracts and other governmental transactions.” See, Allen v. Grand Central Aircraft Co., 347 U.S. 535 (1954).9 In September of 1950, Congress passed the Defense Production Act (DPA), which granted authority to the President to control prices either selectively 7See H. Doc. No. 332, 77th Cong., 1st sess. (1941). "See S. Rept. No. 931, 77th Cong., 2d sess. 12 (1942). 9Under the regulations published pursuant to the Stabilization Act, a determination by the National W ar Labor Board that wage payments were in contravention of that Act was “ conclusive upon all Executive Departments and agencies . . . for the purpose of determining costs or expenses under any contract made by or on behalf of the United States." 7 F.R. 8749 (1942). 244 within one industry or sector of the economy or across the board.10 If prices were controlled, then wages would also be required to be controlled. The DPA, as had the Stabilization Act, contained an explicit provision empowering the President to determine whether “ any wage, salary, or other compensation” had been paid in violation of the controls and to “ prescribe the extent” to which such illegal payments could be “ disregarded by the executive departments and other governmental agencies” with regard to Government contracts. The Supreme Court later observed that the “ substance” of these two provisions was “ inescapably the sam e.." Allen v. Grand Central Aircraft Co., supra, at 546.11 In the Allen case, the Government contractor argued that the regulations mandating the disallowance of illegal wages in computing the sums owed for work or goods sold to the Government were not authorized by the DPA. The Government’s brief discussed in detail the history of administrative sanctions to enforce the wage provisions of the Stabilization Act12 and noted the degree of oversight which'Congress had exercised during its existence.13 In 1970, Congress reentered the field of wage and price controls by enacting another Economic Stabilization Act, 84 Stat. 799, which generally empowered the President to impose wage and price controls even though President Nixon had specifically opposed the grant of such authority.14 Nothing in the legislative history of the 1970 Act suggested that Congress believed that there was any other statutory authority in the Executive to impose wage and price controls. In 1971, after the President had used the authority under the 1970 Act to freeze wages and prices for a 90-day period, Congress considered administra­ tion and other proposals to extend the wage and price control authority beyond the expiration date of April 30, 1972. As finally enacted, the Stabilization Act Amendments of 1971 added to the President’s arsenal the power to “ stabilize” interest rates, corporate dividends and “ similar transfers.” 15 In enacting the 1971 amendments, Congress did much to fill in the details that had not been addressed by the 1970 Act. This was done as least partially in reponse to the decision in Amalgamated Meat Cutters & Butchers Workmen v. Connally, 337 F. Supp. 737 (D.D.C. 1971) (three-judge court), in which a claim that the 1970 Act constituted an unconstitutional overbroad delegation of legislative power to the Executive had been rejected. Nothing in the Amalga­ mated case suggested any source of power in the President to impose wage and price controls other then the 1970 Act, which the Court upheld largely on the theory that its “ fair and equitable” standard and other statutory details were l0The DPA, like its predecessors, contained a termination date (June 30, 1951) for wage and price control authority, an authority subsequently extended, 64 Stat. 822, to April 30. 1953. "U nder the regulations promulgated pursuant to the DPA the "sanction” against employers who paid illegal wages to their employees in connection with work performed on Government contracts was disallowance of the illegal wages paid in computing the money due under the contract or from the Government. See 16 F. R. 6028, 6029, 7284 (1951). l2Brief, at 43-58. n ld „ at 43-49. '*See H. Rept. No. 1330, 91st Cong., 2d sess. 16 (1970) (minority views). I3S. Rept. No. 507, 92d Cong., 1st sess. (1971). 245 sufficiently particular when the Act was read in the context of the legislation discussed above. Finally in 1974, after the expiration of the 1970 Act, as amended, Congress enacted legislation establishing the Council on Wage and Price Stability. In hearings on the legislation, the administration made clear that . . . we are not requesting the statutory authority to impose mandatory, wage and price controls or the authority to delay wage and price increases. The mere existence of such authority has in our opinion an adverse impact on expectations. The name of the game becomes “ raise prices and wages now before the Government intervenes.” Statutory authority to delay wage and price increases would lead to the belief that the Government was on its way back to mandatory controls. This could result in anticipatory wage and price increases that would be highly inflationary.16 As enacted, this legislation contained an explicit provision that nothing in it - “ authorizes the continuation, imposition, or reimposition of any mandatory economic controls.” 17 The history recounted above involved wage and price controls applicable to the entire economy or to specific sectors of the economy. The question of special efforts to impose wage and price restraint on Government contractors as part of procurement policy has never been addressed. Successful defense of the proposed program may well turn on the Government’s ability to show that the requirement of compliance with wage and price guidelines by those doing business with the Government does not constitute the kind of regulation of wages and prices in the general economy which Congress has assumed can be authorized only through a specific delegation of power to the President, or perhaps by direct statutory regulation by Congress itself. The Senate recently adopted, as an amendment to S. 3077, a “ sense of the Senate” resolution which expressed the view that no statute, including specifically the 1949 Procurement Act, was intended by prior Congresses to confer on the President the authority for the program you have proposed. See 124 Cong. Rec. S. 16781-82 (daily ed. Sept. 30. 1978). But the resolution merely expresses the “ objection” of the Senate to implementation of a program like the one at issue here. It is not a law and it is not legally binding. Furthermore, the Supreme Court has indicated that “ the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.” United States v. Philadelphia National Bank, 374 U.S. 321, 348-49 (1963), quoting United States v. Price, 361 U.S. 304, 313 (1960). '6See, Hearings on Cost o f Living Task Force before the Senate Committee on Banking, Housing, and Urban Affairs, 93d Cong., 2d sess. 67 (1974). ,7S. Rept. No. 1098, 93d Cong., 2d sess. 3 (1974). That same report had taken the position that the bill “ would grant no mandatory or standby control authority over the econom y.” Id., at 1. 246 II. Legality of the Options Under Consideration You asked us to address the following two questions: (1) “ would a directive by the President that federal agencies not procure from firms which are on the CWPS list be upheld in court,” and (2) “ would a directive be upheld if it precluded awards to firms which although in compliance with the standards for the products which the agency was procuring, was not in compliance for its other products.” Under the first type of directive, a contractor is generally barred from doing business with the Government if its business activities as a whole are found to be in noncompliance with the wage and price guidelines established by the Council. Thus, a contractor whose Government-related operations are in compliance could nevertheless be barred because its overall operations are not in compliance. Under the second type of directive, a contractor who can convincingly separate his non-Govemment from his Government operations is bound to adhere to the wage and price guidelines only with regard to the latter operations. We believe that the difference between the two types of directives will probably have little impact on the validity of the overall program if.the principles established in the Executive Order No. 11246 cases are applied by the courts to this program. We conclude this because, under the reasoning of Rosetti Contracting Co. v. Brennan, 508 F. (2d) 1039, at 1045, n. 18 (1975), a program will be upheld even if the relationship between prices paid by the Government and the objectives of the program itself are somewhat “ attenuated.” See generally, United States v. New Orleans Public Service, Inc., 553 F. (2d), at 467-68, n. 8 .18 However, the more direct the connection between compliance with wage and price guidelines and lower costs to the Government, the stronger is your argument that the program is in furtherance of the purpose of the 1949 Procurement Act to procure goods and services for the Government more economically and efficiently. Therefore the case with respect to goods and services supplied to the Government will be stronger than for other products of a Government contractor.19 Next, you raised a question whether “ a contractual requirement in a prime contractor’s contract that it require certification of compliance of its subcontrac­ tors and suppliers” would be upheld. A similar provision is contained in § 203 of Executive Order No. 11246. We believe that such a provision would be upheld along with the basic program; neither provision would place any enforcement responsibility on the contractor himself. ,8Under this principle, we think a court would probably accept the argument that applying wage and price guidelines to all phases of a corporation’s business would, over the "long run ," id., at 170, decrease procurement costs to the Government. 19We note that in cases where a contractor cannot satisfactorily segregate his Government and non-Govemment related operations, debarment of the contractor should be possible under the second type of directive without implicating the broader reach of the first type of directive. 247 You also asked whether “ the exclusion from this program of contracts awarded under formally advertised procedures significantly improves” the chances that either program would be upheld. Because there is no requirement that formally advertised contracts be awarded to the lowest bidder, see 41 U.S.C. § 253(b), we believe that the inclusion of such contracts within the reach of the program should not significantly affect the legality of the program one way or the other. Again, it may be that the degree to which the total economy is directly affected by this program would be a factor in judicial consideration of an argument that the program is in effect a general, mandatory wage and price system which can be imposed only pursuant to congressional authorization. Finally, we address the implicit issue whether debarment is an appropriate and authorized sanction for violation of wage and price guidelines. Under analogous case law, e.g., Copper Plumbing & Heating Co. v. Campbell, 290 F. (2d) 368 (D.C. Cir. 1961), as well as those cases upholding Executive Order No. 11246, we believe that debarment is an appropriate remedy. At the same time, in at least one case sustaining debarment in the absence of explicit statutory authority, the court added that debarment cannot occur “ without either regulations establishing standards and a procedure which are both fair and uniform or basically fair treatment” of those debarred. Gonzalez v. Freeman, 334 F. (2d) 570, 580 (D.C. Cir. 1964). This case strongly suggested that if debarment is utilized as a remedy, scrupulous attention must be given to insure that the standards for exceptions are clearly established by regulation and that those standards are applied uniformly. John M . H arm on Assistant Attorney General Office of Legal Counsel 248

Write a legal research memo on the following topic.

Nomination of Sitting Member of Congress to be Ambassador to Vietnam The Ineligibility Clause does not bar the nomination o f Representative Pete Peterson to be Ambassador to the Socialist Republic of Congress, provided that the President does not make the determination to create the office o f ambassador to that government until after the expiration of the term for which Representative Peterson was elected. Ju ly 26, 1996 M e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t You have asked for our opinion as to whether the Ineligibility Clause of the Constitution, U.S. Const, art. I, §6, cl. 2, operates to bar the nomination of Rep­ resentative Douglas (“ Pete” ) Peterson to be Ambassador to the Socialist Republic o f Vietnam. We conclude that, in the circumstances of this case, Representative Peterson is not ineligible, provided that the President does not make the determina­ tion to create the office of ambassador to that government until after the expiration o f the term for which Representative Peterson was elected. I. The Ineligibility Clause (the “ Clause” ), U.S. Const, art. I, §6, cl. 2, states, in part, that No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority o f the United States, which shall have been created, or the Emolu­ ments whereof shall have been encreased, during such time . . . . Representative Peterson was elected on November 8, 1994, for a term that began on January 4, 1995, and that will end at noon of January 3, 1997. The President nominated him as Ambassador to the Socialist Republic of Vietnam (“ Vietnam” ) on May 23, 1996. If the Ineligibility Clause applies to Representative Peterson’s appointment to the office o f Ambassador to Vietnam, it will apply only until the end of the term for which he was elected, i.e., until January 3, 1997, but not thereafter.1 Prior opinions o f the Attorney General and of our Office have resolved that an ineligible M em ber o f Congress cannot escape the Clause by resigning from Congress before 1 See, e.g.. Appointment o f Senator as Federal Judge , 33 O p. A tt’y Gen. 88, 89 (1922) (Senator elected for term expiring M arch 4, 1919, and re-elected fo r term beginning on same date, was eligible to be appointed as federal judge, notw ithstanding fact that salaries o f federal judges were increased by Act of Congress of February 25, 1919.). 284 Nomination o f Silting Member o f Congress to be Ambassador to Vietnam accepting his or her appointment to office.2 The opinions and practice of the executive branch have also assumed that the Clause cannot be avoided if an ineli­ gible Member of Congress is nominated and confirmed to an office created during the term for which the Member was elected, but not commissioned by the Presi­ dent until after that term expires.3 Before proceeding further, we note that there is a difficult and substantial ques­ tion whether the ambassadorial position for which Mr. Peterson has been nomi­ nated would be a “ civil Office” covered by the Clause. The only precedent we have identified that is directly on point assumes (without discussion) that it should be considered to be such an office.4 In accordance with that precedent, we shall assume here, without deciding, that the Ambassadorship to Vietnam would be a “ civil Office” within the meaning of the Ineligibility C lause.5 2 See, e.g., Appointment to Civil Office, 17 Op. Att’y Gen. 365 (1882) (prospective appointee held ineligible despite having resigned from Congress during term for which he was elected and before appointment would have been made); Memorandum for the Honorable John D. Ehrlichman, Assistant to the President for Domestic Affairs, from William H. Rehnquist, Assistant Attorney General, Office o f Legal Counsel, Re: Eligibility o f Members o f the 91st Congress to Be Appointed to the Position o f Director o f the Office o f Management and Budget at 4-5 (Mar. 31, 1970) (reaffirming prior view), accord Memorandum to the Honorable Jesse Helms, Chairman, and the Honorable Claiborne Pell, Ranking Member, from Thomas B. Griffith and Jill E. Hasday, Office o f Senate Legal Counsel, Re: The Ineligibility Clause at 2 (July 24, 1996) ( “ Senate M em o"). 3 See Memorandum for the Attorney General from Charles J. Cooper, Assistant Attorney General, Office o f Legal Counsel, Re: Ineligibility o f Sitting Congressman to Assume A Vacancy on the Supreme Court at 3 n.2 (Aug. 24, 1987), Federal Election Commission— Appointment o f Members, 2 Op. O.L.C. 359, 360 (1977); Member o f Con­ gress— Appointment to Office, 21 Op. Att’y Gen. 211, 214 (1895); Appointment to Civil Office, 17 Op A tt’y Gen. 522, 523 (1883); accord Senate Memo at 2-3. This construction o f the meaning o f the term “ appointed” in the Ineligibility Clause originated with President George Washington, who withdrew the nomination o f an ineligible former Senator to be an Associate Justice o f the Supreme Court, and declared the act of nomination within that Senator’s term “ to have been null by the Constitu­ tion.” Nomination o f George Washington in 1, The Documentary History o f the Supreme Court o f the United Stales, 1789-1800, at 90 (M aeva Marcus et al. eds., 1985). At least one later President has explicitly followed the W ashington precedent. In 1973, President Richard Nixon informed the Senate that he would withhold the nomination o f Senator William Saxbe to be Attorney General until after Congress had cured Senator Saxbe’s ineligibility by enacting legislation that would reduce the compensation and other emoluments attached to the Office o f Attorney General to those that had been in effect before Senator Saxbe began his term. President Nixon stated that “ Constitutional precedents beginning with President W ashington indicate that the nomination o f an individual not then eligible m ay be improper and that any subsequent appointment based on such nomination might be null and void.” Letter from the President to the Hon. Gale W. McGee, Chairman, Comm, on Post O ffice and Civil Service, U.S. Senate (Nov. 8, 1973), reprinted in S. Rep. No. 93-499, al 3 (1973); see also To Reduce the Compensation o f the Office o f Attorney General: Hearing on S. 2673 Before the Senate Comm, on the Judiciary, 93d Cong. 70 (1973) (the “ Saxbe H earing” ) (statement of Robert G. Dixon, Jr., Assistant Attorney G eneral, Office o f Legal Counsel) ( “ In light o f this constitutional practice, Senator Saxbe cannot be nomi­ nated until legislation removing his disqualification has been passed.” ). 4See Member o f Congress— Appointment to Office, 21 Op. A tt’y Gen. at 212-13 (appointment o f Senator as envoy extraordinary and minister plenipotentiary to Mexico was forbidden by Clause because emoluments o f that office had been increased during term for which Senator was elected); see also Saxbe Hearing at 50 (remarks of Professor van Alstyne) (finding that opinion to be “ unquestionably sound” ). 5 Accordingly, we do not rely on the view that the Office o f the Senate Legal Counsel ascribes to us, that “ the Clause applies only to congressionally-created offices.” Senate Memo at 3. As we have stated, the question whether the Ineligibility Clause generally applies to ambassadorships is a difficult one. It has been said that ” [t]he foremost danger” that the Clause was intended to guard against “ was that legislators would create offices with the expectancy o f occupying them themselves.” Freytag v. Comm'r, 501 U.S. 868, 904 (1991) (Scalia, J., concurring in judgment); see also Atkins v. United States, 556 F.2d 1028, 1070 (Ct. Cl. 1977) (per curiam) ( “ This provision was generated out o f a fear that corruption would result if the legislature multiplied the number or increased the salaries o f public offices for the benefit o f its own members.” ), cert, denied, 434 U.S. 1009 (1978); see generally Saxbe Hearing at 70-71 (statement o f Assistant Attorney General Dixon) (reviewing Continued 285 Opinions o f the Office o f Legal Counsel in Volume 20 11. The central question, therefore, is whether the office of Ambassador to Vietnam has been “ created” within the proscribed tim e.6 This appears to be a case of first impression; in any event, relevant precedents are rare.7 While federal offices are nearly always created by Acts of Congress (or else pursuant to delegations o f legislative authority),8 the executive branch has historically taken the position that the President has the inherent, constitutional power to create diplomatic of­ fices, and Congress has generally acquiesced in that view .9 As long ago as 1855, Attorney General Caleb Cushing opined that the Constitu­ tion conferred on the President the power to appoint ambassadors and other diplo­ matic officers, subject only to the advice and consent of the Senate, in the absence original materials). If the purpose of the C lause is only to prevent self-dealing by Congress, its prohibition would not extend to offices that w ere created by the President pursuant to his inherent, constitutional powers; and, as further discussed below , it has been the traditional position o f the executive branch that diplomatic offices are created by unilateral presidential action. On this understanding o f the Clause, it would not apply to the ambassadorial post for which Mr. Peterson has been nominated. The Clause does not in terms refer, how ever, to civil Offices created 4‘by Congress*’: it refers to “ civil O ffices” as such. M oreover, the Clause might well be understood to be addressed, not only to legislative self-dealing, but also to attem pts by the Executive to exercise improper influence on Congress, including offers of appointments to offices that the Executive could create by virtue o f its ow n independent powers. See, e.g., Buckley v. Valeo, 424 U.S. 1, 124 (1976) (per curiam) (concern o f Clause was with “ maintenance o f the separation of powers” ); Joseph C ooper & A nn C ooper, The Legislative Veto and the Constitution, 30 Geo. Wash. L. Rev. 467, 500 (1962) (“ The framers were trying to avoid a pattern o f politics in which the executive manipulated the legislature through its patronage resources o r the legislature m ultiplied the number o r increased the salaries o f public officers for the benefit o f its ow n m em bers.” ). Consistent w ith that view, it appears that many Americans in the Founding Period were fearful o f the British C row n’s power to create offices, as well as to fill them. See, e.g., The Federalist No. 69, at 421 (A. H amilton) (Clinton Rossiter ed. 1961) ( “ The king o f Great Britain . . . not only appoints to all offices, but can create offices.” ); Weiss v. United States, 510 U.S. 163, 187 n.2 (1994) (Souter, J., concurring); Freytag v. Comm’r, 501 U.S. at 904 n.4 (Scalia, J., concurring in judgm ent); G ordon S. W ood, The Creation o f the American Republic 1776-1787, at 144 (1969); Louis Fisher, Constitutional Conflicts between Congress and the President 23 (3d ed. 1991). So understood, th e Clause would reach offices that were created by the Executive acting alone. On yet another view o f the Clause, its prim ary purpose was to discourage the wasteful multiplication of federal offices. In that connection, at least two delegates to the Philadelphia Convention, and one delegate to the Virginia Ratifying Convention, specifically pointed to the danger that ambassadorships might be created unnecessarily. See Notes o f Debates in the Federal Convention o f 1787, Reported by James Madison 178 (Adrienne Koch ed., 1976) (remarks o f Mr. Sherman on June 23); id. at 452 (remarks o f Mr. G erry on August 14); see also 10 The Documentary History o f the Ratification o f the Constitution 1263-64 (John P. Kaminski et al. eds. 1993) (remarks of Mr. Grayson in Virginia Ratifying Convention). In light o f these comments, it might again be argued that the Clause reached ambassadorial offices. 6 W e note that if the office o f Ambassador to Vietnam has not been “ created” during the time for which Represent­ ative Peterson was elected, the prohibition o n increased “ em olum ents” in art. I, §6 , cl. 2 would necessarily be inapplicable. The ineligibility relates to civil offices, “ the Emoluments whereof shall have been increased” (emphasis added). If the office does not exist within the proscribed time, no emoluments have attached to it, or could have been increased. 1 See John F. O 'C o n n o r, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89, 111 (1995) ( “ Not surprisingly, the question whether Congress has in fact created a new office rarely has surfaced; statutes creating new federal offices generally are clear enough to settle the m atter.” ). 8 See Myers v. United States, 272 U.S. 5 2 , 128-29 (1926); Weiss v. United States, 510 U.S. at 183 (Souter, J., concurring). Limitations on Presidential Power to Create a New Executive Branch Entity to Receive and Administer Funds Under Foreign Aid Legislation, 9 Op. O.L.C. 76, 7 7 -7 8 (1985). 9 See generally Fisher, supra note 5, at 3 9 -4 0 . 286 Nomination o f Silling M ember o f Congress to be Ambassador to Vietnam of any legislation purporting to create offices for them to occupy. He stated that the Appointments Clause of the Constitution, U.S. Const, art. 2, §2, cl. 2 , 10 empowers the President to appoint [ambassadors] and other “ public ministers,” that is, any such officers as by the law of nations are recognised as “ public ministers,” without making the appointment of them subject, like, “ other (non-enumerated) officers,” to the exi­ gency of an authorizing act of Congress. In a word, the power to appoint diplomatic agents, and to select for employment any one out of the varieties of the class, according to his judgment of the public service, is a constitutional function of the President, not de­ rived from, nor limitable by, Congress, but requiring only the ulti­ mate concurrence of the Senate; and so it was understood in the early practice o f the Government. Ambassadors and other Public Ministers, 7 Op. A tt’y Gen. 186, 193 (1855).11 With reference to early practice, Attorney General Cushing cited the case of President George Washington’s nomination of William Short to be charge d ’af­ faires in France, during the temporary leave of Ambassador Thomas Jefferson.12 This nomination occurred very early in Washington’s first term, even before the first Congress had been able to enact legislation creating the Department of For­ eign Affairs (later, the State Departm ent).13 As Cushing pointed out, “ no enact­ ment occurs at that session, either in the act making appropriations for the service of the year, (1 Stat. at Large, p. 95), or in any other, to define the number or rank of the diplomatic agents of the United States.” 14 Hence, “ the designation of the officer was derived from the law of nations, and the authority to appoint from the Constitution.” 15 10The Appointments Clause states, in part, that the President “ shall nominate, and by and with the Advice and Consent o f the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges o f the supreme Court, and all other Officers o f the United States, whose Appointments are not herein otherwise provided for, and which shall be established by L a w /’ 11 For the background to Attorney General Cushing's opinion, see Graham H. Stuart, American Diplomatic and Consular Practice 6 (2d ed. 1952). 12 See Ambassadors and other Public Ministers, 7 Op. A tt'y Gen. at 193-94; see also 1 Messages and Papers o f the Presidents 58 (James D. Richardson ed. 1896) (letter from President George W ashington to the Senate, dated June 15, 1789, nominating Short). Moreover, President W ashington reported a conversation with James Madison, in which Madison concurred in the opinion, given also by John Jay and Thomas Jefferson to Washington, that the Senate had “ no Constitutional right’’ to “ interfere’’ with the President’s decision “ on the places to which it would be necessary to send persons in the Diplomatic line,’’ or on the “ grade” o f such persons. The Diary o f George Washington, From 1789 to 1791 (Benson J. Lessing ed., photo, reprint 1978) (1860). >3 See Act of July 27, 1789, ch. 4, 1 Stat. 28. 14Ambassadors and other Public Ministers, 1 Op. A tt’y Gen. at 193. 15 Id. at 194. Similarly, James M adison advised President Monroe on M ay 6, 1822, that it was his belief that “ the practice of the Government had from the beginning been regulated by the idea that the places or offices of public ministers and consuls existed under the law and usages o f nations, and were always open to receive appoint­ ments as they might be made under competent authorities.’’ 1 A Digest o f the International Law o f the United Continued 287 Opinions o f the Office o f Legal Counsel in Volume 20 It appears that the practice of the political branches thereafter generally accorded with the Executive’s conception of its constitutional power. In Francis v. United States, 22 Ct. Cl. 403, 405 (1887) (emphasis added), the court said: M ost offices of the Government are established by general laws, except in the diplom atic service, and all salaries are fixed in like manner . . . . In the diplomatic service, Congress seems to have practically conceded, whether on constitutional grounds rightly or wrongly taken or otherwise, the duty, power, or right of the Execu­ tive to appoint diplomatic agents, of any rank or title, at any time and at any place, subject to such compensation, or none at all, as the legislative branch o f the Government should in its wisdom see fit to provide . . . . In another opinion from the same time, the court again pointed out that the Executive had consistently taken this view of its power, and that Congress had long acceded to it: It has been claimed by the Executive, in accordance with the opin­ ion of Attorney General Cushing, that by the Constitution to the Executive alone is granted the power to appoint diplomatic agents of any rank or title, at any time, and at any place, and upon the exercise of this power Congress can place no extension or limita­ tion, by undertaking either to create, abolish, or change the char­ acter, title, or rank of officers. On the other hand, to the legislative branch of the Government alone is granted the power to provide for the compensation o f those, as well as of all other public officers, and this it may do in such manner as it deems best, or may withhold all compensation whenever it sees fit to do so. During the whole States § 7 8 at 583 (Francis Wharton ed. 1886). (M adison therefore rejected the idea that every tim e an ambassador was sent to a particular country, the office o f ambassador to that country was created anew. Id. According to an authoritative treatise from the period o f the framing o f the Constitution, the law o f nations taught that “ each N ation possesses both the rig h t to negotiate and have intercourse with the others, and the reciprocal obligation to lend itself to such intercourse as far as circumstances will permit it to do so.” 3 Emmerich de Vattel, The Law o f Nations or The Principles o f Natural Law 362 (Charles G. Fenwick trans., 1916) (1758). Accordingly, because “ Nations o r sovereign States d o not treat with one another directly as corporate entities; nor can their rulers o r sovereigns readily meet one another personally in order to negotiate their affairs,” they communicate “ through the mediation o f public ministers. This expression . . . is particularly applied to those who are appointed to fulfill [public] duties at a foreign c o u rt . . . . Every sovereign State has, therefore, the right to send and to receive public ministers. For they are the necessary agents in the negotiation of the affairs which sovereigns have w ith one another, and in the maintenance o f the intercourse which sovereigns have a right to keep up.” Id; see also Henry W heaton, Elements o f International Law §207, at 243 (photo, reprint 1936) (1866) ( “ Every independent State has a right to send public ministers to, and receive ministers from, any other sovereign State with which it desires to maintain the relations of peace and amity. No State, strictly speaking, is obliged, by the positive law o f nations, to send or receive public m inisters, although the usage and comity o f nations seem to have established a sort o f reciprocal duty in this respect. It is evident, however, that this cannot be more than an imperfect obligation, and m ust be modified by the nature and importance o f the relations to be maintained between different States by means o f diplomatic intercourse.” ). 288 Nomination o f Sitting Member o f Congress to be Ambassador to Vietnam of the administration of President Jefferson, and part of the terms of other early Presidents, Congress annually appropriated a sum in gross “ for the expenses of intercourse with foreign nations,” leav­ ing it to the Executive to fix the salaries of its several appointees. Byers v. United States, 22 Ct. Cl. 59, 63-64 (1887). '6 Accordingly, we believe that the President has the inherent, constitutional power to create diplomatic offices such as ambassadorships, without any need for statu­ tory authorization.17 The question then becomes that of identifying the time at which the President acts to create such offices. Particularly instructive is a controversy over the Recess Appointments Clause, U.S. Const, art. II, §2, cl. 3, that arose during the War of 1812, under the Presi­ dency of James M adison.18 The Czar of Russia had unexpectedly offered to medi­ ate between the United States and Great Britain, who were then at war. President Madison was eager to grasp the opportunity, and in 1813 gave recess appointments to Albert Gallatin, John Quincy Adams and James A. Bayard to negotiate a peace treaty. Madison also sought the Senate’s advice and consent to their appointment as Envoys Extraordinary and Ministers Plenipotentiary. The Senate confirmed Adams’ and Bayard’s nominations, but rejected Gallatin’s. Senator Gore intro­ duced a motion to censure Madison, on the grounds that the recess appointments had been unconstitutional. The principal argument was that because these offices had not been established by statutory law, no vacancies existed to which the Presi­ dent could make recess appointments. Madison’s defenders in the Senate argued that the recess appointments were constitutional, maintaining that the President had the inherent power to create diplomatic offices when and as, in his judgment, international circumstances so required — and thus, if need be, during a recess 16 There have, however, been instances in which Congress has apparently asserted the authority to create diplomatic offices. For example, the Act o f March 2, 1909, provided that “ hereafter no new ambassadorship shall be created unless the same shall be provided for by an Act o f Congress.” 35 Stat. 672. Notwithstanding that Act, “ President Wilson appointed an ambassador to Peru in 1919 without any authorization from the Congress other than that found in the appropriation bill for the Department o f State.” Graham H. Stuart, American Diplomatic and Consular Practice at 137. 17 The Foreign Service Act, codified in relevant part as 22 U.S.C. § 3942(a)(1), states that “ (t]he President may, by and with the advice and consent o f the Senate, appoint an individual . . . as an ambassador at large, as an ambassador, [or] as a m inister.” The relevant question here is whether the statute should be understood to be a legislative act creating the office o f ambassador (and, inter alia, the office o f ambassador to Vietnam). Assuming that it could be so read, Mr. Peterson would not be ineligible for the office to which he has been nominated, because that office would have been created before the beginning o f the 104th Congress. (Section 3942(a) was last amended by the Foreign Relations Authorization Act, Fiscal Year 1992 and 1993, Pub. L. No. 102-138, §141, 105 Stat. 647, 667 (1991)). In our opinion, however, the section is better understood as merely declaratory of what the constitu­ tional procedure for appointing ambassadors is, rather than as a legislative creation of such offices. Thus, the fact that it was enacted before the cunent Congress would have no bearing on Mr. Peterson’s eligibility. Alternatively, the section might conceivably be construed, not as itself creating ambassadorships, but as authorizing the President to do so. That reading would also fail to resolve the question at issue, however, because the time at which the President exercised such a statutory grant o f authority would be identical with the time at which he exercised his constitutional authority to create the office o f ambassador to Vietnam. 18The Recess Appointments Clause states that the President “ shall have Power to fill up all Vacancies that may happen during the Recess o f the Senate, by granting Commissions which shall expire at the End o f their next Ses­ sion.” 289 Opinions o f the Office o f Legal Counsel in Volume 20 of the S en ate.19 Senator Bibb, an ally of M adison’s, reasoned that it was essential to recognize two descriptions of offices altogether different in their nature, au­ thorized by the Constitution— one to be created by law, and the other depending for their existence and continuance upon contin­ gencies. O f the first kind, are judicial, revenue, and similar offices. O f the second, are Ambassadors, other Public Ministers and Con­ suls. The first description organize the Government and give it effi­ cacy. They form the internal system, and are susceptible of precise enumeration. When and how they are created, and when and how they become vacant, may always be ascertained with perfect preci­ sion. Not so with the second description. They depend for their original existence upon no law, bu t are the offspring o f the state o f our relations with foreign nations , and m ust necessarily be gov­ erned by distinct rules. A s an independent Power, the United States have relations with all other independent Powers; and the manage­ ment o f those relations is vested in the Executive. 22 Annals o f Cong. 699 (1814) (emphasis added). With respect to the disputed recess appointments, Bibb argued that the office could not exist until the Russian mediation was pro­ posed, and that it was proposed during the recess of the Senate. Until, therefore, the office was created, it could not be said to have been either full or vacant; but the moment it commenced its exist­ ence, it was necessarily full or vacant. It was vacant until filled by the President. The office itself, like that o f all foreign missions, was the offspring of circumstances, and the happening o f the va­ cancy w as contemporaneous with the commencement o f the office. They w ere both created by the occasion; the occasion occurred; the office began its existence', the vacancy happened during the re­ cess of the Senate; and as the Executive is authorized “ to fill up all vacancies which may happen during the recess,” it was his Con­ stitutional right to fill this. 26 Annals of Cong. 702-03 (1812) (emphasis added).20 19 For the circum stances o f Madison's recess appointments and the ensuing controversy, see 6 Irving Brant, James Madison 155-57, 2 4 2 -4 3 (1961). 20 Senator Bibb also articulated a distinct defense o f President M adison's action. According to this alternative theory, “ the office com m enced with every independent Power from the moment the United States became inde­ pendent, and authorized the appointment o f foreign M inisters, and it w ill continue to exist so long as we and they 290 Nomination o f Sitting Member o f Congress to be Ambassador to Vietnam Senator Horsey (a Federalist, and so not of Madison’s party), also defended the President’s recess appointments, arguing that [t]he office then of a public Minister is the medium through which the Executive is enabled to manage our foreign relations, and par­ ticularly to conduct negotiations. It is an office wholly different from the ordinary offices created by the Constitution or by law. . . . [I]t is an office not created by the Constitution, nor by any municipal law, but emanates from the laws of nations and is common to all civilized Governments. . . . It is an office, if it may be so called, sui generis. The number may be multiplied to any extent, or diminished. It is brought forth with the occasion, and disappears when the occasion ceases. When not filled, if it exists at all, it is only in contemplation. . . . The office of a public Min­ ister, therefore, depends upon events, upon the state of foreign af­ fairs, and is authorized by the laws of nations. . . . The office in truth attaches whenever the occasion arises to use it, and the act o f appointment is the consummation o f the law. Id. at 711-12 (emphasis added).21 Review of this controversy suggests that, at the very least, diplomatic offices may be created by the President at whatever time, in his judgment, the interests of the United States in its dealings with foreign nations require them to be m ade.22 continue independent, unless destroyed by the termination o f the relations which created it. The period at which it should be filled is left by the Constitution to the discretion o f the President.” Id. at 699. On this account, it appears that the office o f ambassador exists as a necessary incident to sovereignty, and thus has existed since the United States became independent in 1776. Cf. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 316— 18 (1936) (power to maintain diplomatic relations was vested in United States as an incident o f external sovereignty upon separation from Great Britain). Were that theory correct, it would appear to follow that the office for which Representative Peterson was nominated — the Ambassadorship to Vietnam— existed since (at least) the tim e that diplomatic relations between the United States and Vietnam became possible, and thus that the office had not been “ created” during the term for which he was elected. 21 As Senator Horsey explained his view, the “ Occasion” for instituting the mission to Russia was the Russian Government’s offer o f M arch 8, 1813, to mediate between the United States and Great Britain, and the acceptance o f that offer by the Secretary o f State on March 11, 1813. This occasion “ happened in the recess o f the Senate. The office then attached, and with it the vacancy, which was filled and the office perfected by issuing the commis­ sions . . . .” Id. at 713. 22 See Memorandum o f Law, Re: Appointment o f Deputy Special Representative fo r Trade Negotiations at 5, ac­ companying Letter for A rthur B. Focke, General Counsel, Bureau o f the Budget, from Norbert A. Schlei, Assistant Attorney General, O ffice o f Legal Counsel (Dec. 19, 1962) ( “ [T]he office is created whenever the President deter­ mines that the interests o f the United States require diplomatic representation or negotiation” ). Madison himself may subsequently have taken a different view o f the matter from that o f his defenders in the Senate. In a memorandum of 1834— twenty years after the controversy over the recess appointments— he expressed the opinion that the “ place of a foreign minister o r consul is not an office in the constitutional sense o f the term ,” basing that conclusion in part on the premise that “ [i]t cannot, as an office, be created by the mere appointment for it, made by the President and Senate, who are to fill, not create offices.” Power o f the President to appoint Public Ministers and Consuls in the recess o f the Senate, in 4 Letters and Other Writings o f James Madison 350 (1865). On this theory, “ [t]he place o f a foreign minister o r consul is to be viewed as created by the law o f nations.” Id. W ere Madison correct in denying that an ambassadorship is an “ office” in the constitutional sense, no Ineligibility Clause issue would arise. 291 Opinions o f the Office o f Legal Counsel in Volume 20 To be sure, the President’s decisionmaking may unfold over a period of time, and he will ordinarily take various preparatory steps relating to the creation of a diplomatic office before he unequivocally determines to do so. The remarks o f M adison’s defenders in the Senate debate suggest that, if it becomes necessary to pinpoint the precise time at which the President creates such an office (as, for instance, in determining the validity of a recess appointment), then that time should be identified as the moment at which he fills the office. While the 1814 debate was directed to the interpretation of the Recess Appointments Clause, we believe that it also illuminates the meaning of the Ineligibility Clause. III. We think it fair to say that the patterns of constitutional practice that we have described do not conclusively answer the question when the office of an ambas­ sadorship is created. Nonetheless, we think that the legal and historical materials strongly point toward a particular answer, and we find that answer to be consider­ ably more persuasive than any of the alternatives. Based on our survey of the materials, including the 1814 debate, we believe that the following tests are appro­ priate in determining when, for purposes of the Ineligibility Clause, the President has created the office o f ambassador to a particular foreign State, in cases where such an ambassadorship has not existed before or (as in the case o f Vietnam) has lapsed or been terminated: 1. In the usual course, the office is created at the time of appointment of the first ambassador to a foreign State once the President establishes diplomatic rela­ tions with that State. All that precedes the appointment— offering to establish normal diplomatic relations, receiving the foreign State’s agreement to receive a particular person as the United States’ ambassador, nominating and confirming that individual as ambassador— are all steps preparatory to the creation of the office.23 If the President ultimately declines to appoint an ambassador, the “ of­ fice” is never created. 2. The President, nonetheless, retains the power to alter the ordinary course of events, and to create the office at some other time — or not at all. The act o f creating the office must be distinguished from the preparatory steps leading to its creation. The preparatory acts indicate that the President intends to create the office; they do not in themselves constitute its creation. Indeed, in the ordinary course, the President should be understood to intend to create the office of ambas­ 23 The preparations leading up to the creation o f the office can be analogized to the legislative process. Congress holds hearings on legislative proposals, conducts debates on them, considers amendments, casts votes on a final bill and presents that bill to the President. All o f these activities are designed to culminate in the enactment of a bill into law. N onetheless, exceptional cases aside, a bill does not actually become law until the moment that the President signs it. See INS v. Chadha, 462 U.S. 919 (1983). 292 Nomination o f Sitting Member o f Congress to be Ambassador to Vietnam sador upon the appointment of the individual as the first ambassador to the receiv­ ing State.24 We turn now to the application of these tests to the ambassadorship to Vietnam. IV. The process by which the United States has been normalizing its relations with Vietnam has been underway for several years.25 The Republic of Vietnam (“ RVN” ) was constituted as an independent State within the French Union in 1950, and the United States sent a Minister to that State. The United States did not recognize the Democratic Republic of Vietnam (“ DRVN” ), which had earlier declared itself to be an independent State. Thereafter, on June, 25, 1952, the United States appointed an Ambassador to the RVN, and upgraded the United States Legation in Saigon to Embassy status. In 1954, Vietnam was partitioned into what came commonly to be called “ North” and “ South” Vietnam. Despite an international agreement calling for the reunification of Vietnam, that did not occur; instead, the RVN, functionally, became South Vietnam, and the DRVN, functionally, North Vietnam. The United States maintained an ambassadorial post in the RVN from 1952 onwards. The last United States Ambassador left his post in Saigon on April 29, 1975.26 After the Communist victory over South Vietnam in April, 1975, it became the position of the United States that “ ‘[t]he Government of South Vietnam has ceased to exist and therefore the United States no longer recognizes it as the sov­ ereign authority in the territory of South Vietnam. The United States has not rec­ ognized any other government as constituting such authority.’ ” Republic o f Viet­ nam v. Pfizer, Inc., 556 F.2d 892, 895 n.4 (8th Cir. 1977) (quoting Letter for the Department of Justice from the Department of State (June 9, 1975)). During the present administration, several successive and carefully measured steps were taken with a view to improving, and perhaps normalizing, relations between the United States and Vietnam. On July 2, 1993, President Clinton an­ nounced that the United States would no longer oppose the resumption of aid to Vietnam by international financial institutions. On February 3, 1994, the Presi­ dent announced the lifting of the United States’ embargo against Vietnam. He also announced an intent to open a liaison office in Hanoi in order to promote further progress on issues of concern to both countries, including the status of American prisoners o f war and Americans missing in action. His statement empha­ sized, however, that ‘ ‘ [t]hese actions do not constitute a normalization o f our rela­ 34 In unusual circumstances, the President might depart from this procedure. For exam ple, following the establish­ ment of diplomatic relations, he might by proclamation declare the office o f ambassadorship to a particular country to be created, even if he had not appointed a particular person to fill that office. 25 See generally Congressional Research Service, Report for Congress, Vietnam: Procedural and Jurisdictional Questions Regarding Possible Normalization o f U.S. Diplomatic and Economic Relations (Aug. 4, 1994). 26 See generally Office o f the Historian, Principal Officers o f the Department o f State and United States Chiefs o f Mission: 1778-1990, D ep’t o f State Publication 9825, at 163 (Jan. 1991). 293 Opinions o f the O ffice o f Legal Counsel in Volume 20 tionships. Before that happens, we must have more progress, more cooperation and more answers.” 27 On May, 26, 1994, the United States and Vietnam formally entered into consular relations within the framework of the Vienna Convention on Consular Relations, done Apr. 18, 1961, 21 U.S.T. 77, 596 U.N.T.S. 261, to which both States were party. T he United States, however, continued to condition diplomatic relations on progress in areas o f concern to it. On January 28, 1995, the United States and Vietnam signed an agreement relating to the restoration o f diplomatic properties and another agreement relating to the settlement of private claims. On July 11, 1995, the President announced an offer to establish diplomatic relations with Vietnam under the Vienna Convention on Diplomatic Relations, done Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 — an offer that Vietnam accepted on the following day. In announcing that offer, the President stated that from the beginning of his Administration, “ any improvement in relationships be­ tween America and Vietnam has depended upon making progress on the issue o f Americans who were missing in action or held as prisoners of war.” 28 Soon thereafter, the United States Liaison Office in Hanoi was upgraded to a Diplomatic Post. On May 8, 1996, the Government of Vietnam gave its agreement (“ agrement ” ) to the United States’ proposal that Representative Peterson be Ambassador Ex­ traordinary and Plenipotentiary o f the United States to Vietnam.29 On May 23, 1996, the President submitted Mr. Peterson’s name to the United States Senate for its advice and consent to that appointment. In our judgment, while this pattern of activity demonstrates that the President fully intends and expects to create the office of ambassador to Vietnam, it does not establish that he has, in fact, yet done so. The establishment of diplomatic relations does not entail the establishment of a diplomatic mission or the creation o f the office of an ambassador. See Vienna Convention on Diplomatic Relations, art. 2, 23 U.S.T. at 3231, 500 U.N.T.S. at 98. Moreover, the existence of diplo­ matic relations with Vietnam does not require (although it may normally assume) an exchange o f ambassadors, since relations may be conducted at a lower diplo­ matic level. Further, we do not think that Vietnam’s agrement to receive Mr. Peterson as ambassador establishes that that office exists for constitutional pur­ p o ses.30 Nor (although the question is closer) does the President’s decision to submit Mr. Peterson’s name to the Senate for confirmation. Even if Mr. Peterson 27 Remarks on Lifting the Trade Embargo on Vietnam and an Exchange With Reporters, Pub. Papers o f William J. C linton 178, 179 (Feb. 3, 1994). 28 Remarks Announcing the Normalization o f Diplomatic Relations with Vietnam, 2 Pub. Papers o f William J. Clinton 1073. 1073 (July 11. 1995). 29 “ In Older to avoid the unfriendly feeling which m ight arise through the refusal o f a state to receive a foreign representative it is custom ary for the sending state to subm it in advance the name o f its envoy to the government o f the state to whom he is to be accredited. The procedure o f determining in advance as to whether the envoy will be persona grata is called agreation an d the approval agrement.” Stuart, supra note 16, at 139-40. 30 Indeed, as a m atter o f international law, it may be that the office of ambassador to Vietnam will not begin to exist until o u r representative is “ duly accredited and received" as ambassador by the Government o f Vietnam. Hollander v. Bail, 41 F. 732, 735 (S.D.N. Y .), prohibition denied fry 135 U.S. 403 (1890). 294 Nomination o f Silting Member o f Congress to be Ambassador to Vietnam is confirmed, the President would retain the discretion not to send an ambassador to Vietnam, or otherwise not to create that office. In view of the facts that the United States has not had an ambassador to Vietnam since 1975 (and has never had an ambassador to the present government), that the process of normalizing relations between the United States and Vietnam has been a complex and pro­ tracted one, and that contingencies, however unlikely, may yet arise that would lead the President to conclude that it was not in the United States’ best interests to appoint and send an ambassador, we do not think that the office of ambassador to Vietnam can be said to exist unless and until the President actually completes the process by appointing an officer to that position. Accordingly, if the President decides not to appoint Mr. Peterson to that office until after the expiration of the present term of Congress on January 3, 1997, we do not think that Mr. Peter­ son is constitutionally ineligible for that appointment. In the interests of clarity, we repeat that we are not maintaining that an “ ap­ pointment” within the meaning of the Ineligibility Clause does not occur until the appointee is actually commissioned by the President. Whatever the merits of that view as an original proposition (and they are substantial),31 we are not writing on a clean slate. Accordingly, we follow the centuries-old teaching and practice of the executive branch in assuming that the nomination of an ineligible individual is itself a constitutional nullity, even if the commissioning of that individual were to occur after the term of his or her ineligibility. Our position is that, in the sin­ gular circumstances of this case, the relevant office — the Ambassadorship to Viet­ nam — has not yet been “ created,” so that no ineligibility exists. Thus, both the President’s act of nominating Mr. Peterson, and the Senate’s act of confirming him (if it does), are constitutionally valid. V. It could be argued that our analysis gives insufficient weight to the policy of the Ineligibility Clause, inasmuch as it makes it possible, by the President’s deci­ sion to withhold creating a diplomatic post until after the expiration of a congres­ sional term, to appoint an otherwise ineligible Member of Congress to that posi­ tion. We would disagree. The tradition of interpreting the Clause has been “ for­ malistic” rather than “ functional,” and our analysis comports fully with the literal meaning o f the text. Furthermore, it is important to bear in mind that the Clause was a compromise that reflected policy disagreements at the Philadelphia Conven­ tion: to some extent, at least, the Clause was designed to perm it Members of Congress, in appropriate circumstances, to hold office in the executive branch.32 31 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155 (1803) (appointment not effective until commissioning by President); Appointments to Office— Case o f Lieutenant Coxe, 4 Op. Att’y Gen. 217, 219 (1843). 32See Saxbe Hearing at 67 (emphasis added) (testimony o f Assistant Attorney General Dixon) ( “ There was a disagreement in the convention concerning this issue and that was because there was a competition in values. The Continued 295 O pinions o f the Office o f Legal Counsel in Volume 20 Moreover, even at the time of the Framing, it was understood that the Clause was a highly imperfect safeguard against the danger that the prospect of appoint­ ment to office would improperly influence Members of Congress. Luther Martin, a delegate from Maryland to the Philadelphia Convention, provided his State legis­ lature with a critical report on the Convention’s work. As to the Ineligibility Clause, he wrote: As to the exception that [Members of Congress] cannot be ap­ pointed to offices created by themselves, or the emoluments of which are by themselves increased, it is certainly of little con­ sequence, since they may easily evade it by creating new offices, to which may be appointed the persons who fill the offices before created, and thereby vacancies will be made, which may be filled by the members who for that purpose have created the new of­ fices. 33 More recent commentators have also pointed out the inadequacy of the Clause as a device for controlling the abuses at which it is apparently aimed. Thus, former Assistant Attorney General Antonin Scalia rejected a policy-based interpretation o f the Clause, writing: the constitutional provision does not avoid some degree of absurdity in any event, no matter what imaginatively constructed extensions are devised; and . . . therefore it is best to restrict the provision to its clear, literal meaning . . . . As for a means o f easy evasion, nothing could be easier than having the Congress create a new post, to be filled by an existing appointee, and then appointing the fa­ vored M ember to the vacated office. In light o f the essential incohesivesness of the constitutional provision, I do not regard the policy a r gument . . . as persuasive. Memorandum for Hugh M. Durham, Chief, Legislative & Legal Section, Office of Legislative Affairs, from Antonin Scalia, Assistant Attorney General, Office m atter was not viewed as being simple o r mechanistic. As M adison said at one point: 'Som e gentlemen give too much weight and others too little to this subject.’ There was a fear that unless the Constitution did include an ineligibility clause o f this sort, that there would be undue inroads on the independence o f the legislature by the Executive m enticements and appointments to the executive branch and that also there might be self-interest in the m em bers’ approach toward salaiy increases o r toward creation o f new offices. Al the same time there was also a recurrent concern shared by Madison who was a primary mover o f the clause and also Pinkney, that a total bar would be a disservice to the public and indeed to the executive branch and judicial branch."). 33 The Genuine Information Delivered to the Legislature o f the State o f Maryland Relative to the Proceedings o f the General Convention Lately Held at Philadelphia, By Luther Martin, Esquire (1788), reprinted in 2 Herbert J. Storing, The Com plete Anti-Federalist 19, 52 (198L). 296 Nomination o f Sitting Member o f Congress to be Ambassador to Vietnam of Legal Counsel, Re: P roposed bill to increase the salary o f the A ttorney General at 6 (Nov. 22, 1974).34 VI. Finally, there remains the question whether the President may nominate, and the Senate confirm, an individual for an office that does not exist at the time of the nomination and confirmation, but is expected to come into existence later. The Office of the Senate Legal Counsel raises this objection, stating that “ we are aware of no prior instance in which the President appointed someone to an office that did not yet exist.” 35 There are, however, several such precedents. The practice of the political branches establishes that the President may make a nomination, and the Senate give its advice and consent, for an office not yet in being. For example, the statute creating the Occupational Safety and Health Review Commission became effective on April 28, 1971. See Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, §34, 84 Stat. 1590, 1620. President Nixon nominated the first members of the Commission on March 19, 1971, see 117 Cong. Rec. 7270 (1971), and the Senate confirmed the nominees on April 14, 1971, “ effective in accordance with the provisions of law,” id. at 10,458. Similarly, Reorganization Plan No. 1 of 1953, 3 C.F.R. 1022 (1949-1953), re­ printed in 5 U.S.C. app. at 1488 (1994), and in 67 Stat. 631 (1953), created the office of Secretary of Health, Education, and Welfare, as of April 11, 1953. On April 2, 1953, President Eisenhower nominated Oveta Culp Hobby to be the first Secretary, effective April 11, see 99 Cong. Rec. 2716 (1953), and the Senate con­ firmed her on April 10, id. at 2958.36 34 Similarly, Professor van Alstyne, testifying in a Senate hearing regarding the possibility o f curative legislation to remove Senator Saxbe’s ineligibility to be appointed Attorney General, noted that the mechanicalism of article I, section 6, clause 2, has the same virtues and the same vices as similar provisions elsewhere in the document. For along with the virtue o f clear and impersonal operation, there is, o f course, the shortcoming that legislative technique— that a line drawn in a manner giving conclusive effect to but one or two circumstances may often fail to reach a variety of possible corrupt practices that a more general standard would tend to reach. It is clear, for instance, . . . that a Senator or Representative nearing the end o f his term might be induced to vote to create a new office or to raise the emoluments in an existing one, expecting in return for his vote at once to be appointed to that office the instant his term expires. Yet, the clause does not reach that point. Saxbe Hearing at 51. 35 Senate Memo at 4. 36 Other instances in which Presidents have made nominations for offices not yet in being include: (1) the nomina­ tion on January 20, 1989, o f Edward Derwinski to be the first Secretary o f Veterans Affairs, 135 Cong. Rec. 321 (1989), under a statute that precluded appointment until after January 21, 1989, see Department o f Veterans Affairs Act, Pub. L. No. 100-527, § 18(b). 102 Stat. 2635, 2648 (1988) (codified as amended at 38 U.S.C. §301 note); (2) the nomination on June 8, 1979, o f the first Federal Inspector for the Alaska Natural Gas Transportation System, 125 Cong. Rec. 14,209 (1979), under Reorganization Plan No. 1 o f 1979, 3 C.F.R. 505 (1980), reprinted in 5 U.S.C. app. at 1584 (1994), and in 93 Stat. 1373 (1979), which became effective on July 1, 1979; and (3) the nomination on November 16, 1970, o f William D. Ruckelshaus to be the first Administrator o f the Environmental Protection Agency, 116 Cong. Rec. 37,347 (1970), under a Reorganization Plan creating the office as o f December 2, 1970, Reorganization Plan No. 3 o f 1970, 3 C.F.R. 199 (1971), reprinted in 5 U.S.C. app. at 1551 (1994), and in 84 Stat. 2086 (1970). 297 Opinions o f the Office o f Legal Counsel in Volume 20 The reasoning that supports this procedure is similar to that underlying nomina­ tions and confirmations for prospective vacancies in existing offices: [A]s a constitutional matter, nothing precludes the nomination and confirmation of a successor while the incumbent still holds office. Confirmation does not confer any rights on the nominee; the Presi­ dent remains free to decide that he does not want to make the ap­ pointment, which is not legally completed until the execution of the commission. N om inations f o r Prospective Vacancies on the Supreme Court, 10 Op. O.L.C. 108, 109 (1986). The President and Senate have repeatedly used this procedure for prospective vacancies. See id. at 110-11. Just as in the case of prospective vacan­ cies, nomination and confirmation for a prospective office can confer no rights on the nominee, who must await further decisions and the President’s appointment. The Office of the Senate Legal Counsel also objects that the nomination and confirmation of an individual to a position that is to be created later “ raises seri­ ous separation of powers concerns because it might fundamentally reshape and limit the Senate’s constitutionally-based confirmation power. The Senate’s advice and consent function requires a review not simply of the nominee, but of his fitness to fulfill a particular office.” 37 We do not find that objection forceful in the circumstances present here. First, the Senate’s constitutional power to reject a nominee for any reason, or for none, is completely unimpaired. Second, in the actual circumstances of this nomination, the Senate possesses all the facts that are needed to make an informed judgment of the nominee’s fitness to serve as Ambassador to Vietnam. Even if that particular ambassadorship has yet to be cre­ ated, the duties and responsibilities of an ambassador are of course perfectly famil­ iar to the Senate. Conclusion Accordingly, we conclude that Representative Peterson is not constitutionally ineligible for appointment as Ambassador to Vietnam, provided that the President finally creates that office after Representative Peterson’s term of office as a Mem­ ber of Congress has expired on January 3, 1997. CHRISTOPHER SCHROEDER Acting Assistant Attorney General Office o f Legal Counsel 37 Senate M emo at 4. 298

Write a legal research memo on the following topic.

Disclosure of Advisory Committee Deliberative Materials T he Federal Advisory C om m ittee Act requires advisory com m ittees to m ake available for public in­ spection w ritten advisory com m ittee docum ents, including predecisional m aterials such as drafts, w orking papers and studies. T he disclosure exem ption available to agencies under exem ption 5 o f the Freedom o f Inform ation A ct for predecisional docum ents and other privileged m aterials is narrowly lim ited in the context o f the Federal Advisory C om m ittee Act to privileged inter-agency or intra-agency docum ents p re ­ pared by an agency and transm itted to an advisory com m ittee. April 29, 1988 M e m o r a n d u m O p in io n f o r t h e A s s is t a n t A t t o r n e y G e n e r a l O f f ic e o f L e g a l P o l ic y Introduction and Summary This responds to your request for the views of this Office concerning the ex­ tent to which exemption 5 of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, is available to withhold deliberative materials prepared by an advisory committee that would otherwise be subject to the disclosure requirements of sec­ tion 10(b) of the Federal Advisory Committee Act, 5 U.S.C. app. I (“FACA”).' Section 10(b) provides in pertinent part that “[s]ubject to section 552 of title 5, 1 This memorandum addresses only exemption 5 of FOIA To the extent one of the other eight statutory ex­ emptions applies, the covered documents are independently protected from disclosure. We also emphasize both that separation o f powers may preclude Congress from applying FACA to certain advisory groups and that documents subject to the disclosure requirements of section 10(b) may be withheld pursuant to a valid claim o f executive priv­ ilege. We do not here address these constitutional bases for withholding documents but observe that several courts have described the threat posed by a literal reading o f FACA to presidential powers See.e g , National Anti-Hunger Coalition v. Executive Comm o f the President’s Private Sector Survey on Cost Control, 557 F. Supp. 524, 530 (D.D.C.), o ff d and remanded, 711 F.2 d l0 7 1 (D C Cir.), judgm ent amended, 566 F. Supp. 1515 (D.D.C. 1983) (FACA is “obscure, imprecise, and open to interpretations so broad that it would threaten to impinge unduly upon prerogatives preserved by the separation o f powers doctrine”); Nader v Baroody, 396 F. Supp 1231, 1234 (D D.C. 1975), vacated as moot. No 75-1969 (D.C Cir Jan. 10, 1977) (“Nowhere is there an indication that Con­ gress intended to intrude upon the day-to-day functioning of the presidency___ "). Thus, for example, it is the gov­ ernm ent’s position that the American Bar Association Standing Committee on the Federal Judiciary is not “uti­ lized” by the President and therefore not subject to FACA, o r alternatively, that the application of FACA to the ABA Committee would unconstitutionally impinge on the President’s exclusive authority to nominate and appoint Article III judges, subject to the advice and consent function o f the Senate. U.S. Const, art. II, § 2, cl. 2. Washing­ ton Legal Found v. United States Dept, o f Justice, 691 F. Supp. 483 (D D C. 1988) In addition, congressional dis­ closure statutes, including FACA, necessarily raise separation o f powers and executive privilege issues as applied to communications among the President and his advisors and advice prepared for the President by his advisors See, e g ,N ix o n v. G eneralServ Admin. ,433 U.S. 425,441-55 (1977); Soucie v Daw*/, 448 F 2d 1067, 1073 (D.C. Cir. 1971); National Anti-Hunger Coalition, 557 F. Supp. at 530. Because the operation of presidential powers in the context of FACA is not the subject o f the present inquiry directed to this Office, the discussion herein is simply meant to be illustrative. 73 United States Code, the records, reports, transcripts, minutes, appendixes, work­ ing papers, drafts, studies, agenda, or other documents which were made avail­ able to or prepared for or by each advisory committee shall be available for pub­ lic inspection.”2 Exemption 5 o f FOIA exempts inter-agency and intra-agency deliberative or predecisional documents from disclosure.3 The issue presented is the scope to be given to exemption 5 in light of section 10(b)’s enumeration of deliberative documents such as working papers and drafts as being specifically subject to disclosure.4 We conclude that FACA requires disclosure of written advisory committee documents, including predecisional materials such as drafts, working papers, and studies.5 The disclosure exemption available to agencies under exemption 5 of FOIA for predecisional documents and other privileged materials is narrowly limited in the context of FACA to privileged “inter-agency or intra-agency” doc­ uments prepared by an agency and transmitted to an advisory committee. The language of the FACA statute and its legislative history support this restrictive application of exemption 5 to requests for public access to advisory committee 2 Section 10(b) o f FACA reads in full: Subject to section 552 o f title 5, U nited States Code, the records, reports, transcripts, minutes, ap­ pendixes, working papers, drafts, studies, agenda, or other documents which were made available to o r prepared for or by each advisory com m ittee shall be available for public inspection and copying at a single location in the offices of the advisory committee o r the agency to which the advisory com­ m ittee reports until the advisory committee ceases to exist. 3 Exemption 5, 5 U.S.C. § 552(b)(5), provides that the disclosure obligations of FOIA do not “apply to matters that are— (5) inter-agency or intra-agency memorandums o r letters which would not be available by law to a party other than an agency in litigation with the agency ” 4 Public Citizen Litigation Group has also requested DOJ to issue a policy statement clarifying that the deliber­ ative process exemption does not “shield from public scrutiny” the drafts, working papers, and other deliberative documents prepared by advisory committees. Public Citizen represented the ACLU in its suit to enjoin the Attor­ ney G eneral’s Commission on Pornography from holding meetings until it released drafts and working papers. A C L U v Attorney G eneral's Commission on Pornography, D epartment o f Justice, No. 86-0893 (D.D.C. filed Apr. 3, 1986) Although the Commission initially asserted that the documents were covered by exemption 5 as incor­ porated by FACA, the parties stipulated a settlement providing for release o f the documents and the suit was with­ drawn s This Office has not previously addressed this issue directly Soon after FACA was enacted, we noted the po­ tential conflict between exem ption 5 and section 10, but did not opine on the proper resolution of the issue Mem­ orandum for Dwight A. Ink, Assistant Director, Office o f Management and Budget, from Roger C. Cramton, As­ sistant Attorney General, Office o f Legal Counsel, Re Treatment o f Exemption 5 o f the Freedom o f Information Act in D enying Access to M eetings and Records o f Federal Advisory Committees (Jan. 2, 1973) In 1974, we ad­ vised the Clemency Board that it was an advisory committee and therefore subject to the disclosure provisions of FACA The memorandum by Assistant Attorney General Antonin Scalia identified three potentially applicable FOIA exem ptions, but conspicuously did not cite exemption 5. Memorandum for the Clemency Board, from An­ tonin Scalia, Assistant Attorney General, O ffice o f Legal Counsel (Sept. 24, 1974). In 1982, in the process of ren­ dering an opinion that activities by staff members on task forces to President’s Pnvate Sector Survey on Cost Con­ trol did not fall within the ambit o f FACA, we noted in dicta and without analysis that materials made available to com m ittee had to be m ade available to the public under section 10(b), unless exempted under FOIA, in which case it “need not be made publicly available under 10(b) o f FACA.” Memorandum for Fred F. Fielding, Counsel to the President, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re. President’s Private Sector Survey on Cost C ontrol at 7 (Nov. 1, 1982) We also opined in 1982 that advisory committee documents are available through FOLA requests made to the supervising agency and that the advisory committee must cooperate, but we did not specifically address the impact o f exemption 5 Memorandum for Fred F. Fielding, Counsel to the President, from Larry L. Simms, Deputy A ssistant Attorney General, Office o f Legal Counsel, Re: Applicability o f the Freedom o f Information Act to Federal Advisory Committee (Dec. 30, 1982). 74 documents. Moreover, since an advisory committee is not itself an agency, this construction is supported by the express language of exemption 5 which applies only to inter-agency or intra-agency materials.6 We emphasize that despite these conclusions many documents that are part of the advisory committee process will not be subject to disclosure. Section 10(b) itself applies only to materials made available to or prepared for or by an advi­ sory committee established by statute or reorganization plan or established or uti­ lized by the President or an agency. 5 U.S.C. app. I, §§ 3(2), 10(b). Accordingly, in determining whether a document is to be disclosed the first issue is not whether it is subject to an exemption under 5 U.S.C. § 552 but whether it meets this thresh­ old definition. Analysis A. Defining the Class of Documents to which Section 10(b) Applies. By the express terms of section 10(b), deliberative materials, in order to be subject to disclosure, must be “made available to or prepared for or by” an advi­ sory committee, 5 U.S.C. app. I, § 10(b), which is established by statute or reor­ ganization plan or “established or utilized by the President” or an agency. Id. § 3(2)(B) (emphasis added).7 The courts and this Office have construed the con­ cept of advisory committees established or utilized by the President or an agency to preclude section 10(b)’s application to the work prepared by a staff member of an advisory committee or a staffing entity within an advisory committee, such as an independent task force limited to gathering information, or a subcommit­ tee of the advisory committee that is not itself established or utilized by the Pres­ ident or agency, so long as the material was not used by the committee as a whole. The reasoning behind the construction of the concept is straightforward: [Such staffing entities or subcommittees] do not directly advise the President or any federal agency, but rather provide informa­ tion and recommendations for consideration to the Committee. Consequently, they are not directly “established or utilized” by the President or any agency . . . . See National Anti-Hunger Coalition, 557 F. Supp. at 529. See also Memoran­ dum for Fred H. Wybrandt, Chairman, National Crime Information Center Ad­ 6 We do not address or express any opinion in this memorandum on the separate issue of the disclosure obliga­ tions of the agency under FOIA with respect to written materials delivered from an agency advisory committee to an agency. 7 FACA defines an advisory committee as “any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof, . . which is— (A) established by statute or reorganization plan, or (B) established or utilized by the President, or (C) established or utilized by one or more agencies, in the interest o f obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government.” 5 U S.C. app I, § 3(2). 75 visory Policy Board, from Douglas W. Kmiec, Deputy Assistant Attorney Gen­ eral, Office of Legal Counsel (Apr. 28,1987) (“Wybrandt Memorandum”). This limitation on section 10(b)’s disclosure requirement has important practical con­ sequences. For example, the President established a presidential advisory com­ mittee, the President’s Private Sector Survey on Cost Control (“Survey”), funded by the Department of Commerce, but whose staff had to be paid for by the pri­ vate sector.8 A non-profit Foundation for the Survey, chaired by members of the Executive Committee, organized the private staff into thirty-six task forces to gather information, perform studies, and draft recommendations and reports for the Executive Committee. Based on this structure, the district and appellate courts concluded that the non-profit task forces were not subject to FACA because they did not provide advice directly to the President or any agency, but rather per­ formed activities analogous to staff work. National Anti-Hunger Coalition, 557 F. Supp. at 529-30; 711 F.2d at 1075-76.9 Based on the same reasoning, as well as an exhaustive survey of the FACA legislative history, this Office recently concluded that subcommittees of the Na­ tional Crime Information Center (“NCIC”) Advisory Policy Board are likewise not covered by FACA because they “perform preparatory work or professional staff functions in aid of, but not displacing, the actual advisory committee func­ tion performed by the Board.” Wybrandt Memorandum at 1.10Although each ad­ visory committee structure will determine the results in a particular case, the gen­ eral point can be made that FACA compels disclosure of a limited subset of information, namely the material used by the advisory committee or subgroup established or utilized by the ultimate decision-maker, which typically will be an agency or the President. B. The Scope of Exemption 5 in the Context o f Section 10(b)’s Disclosure Requirements. Assuming that documents are subject to section 10(b), we turn to the scope of FO IA ’s exemption 5 under FACA. First, it is necessary to presume that Congress did not intend to create an irreconcilable conflict between the two laws; i.e., on the one hand, to protect deliberative advisory committee materials from public inspection via exemption 5, but on the other, to order detailed disclosure of all “records, reports, transcripts, minutes, appendixes, working papers, drafts, stud­ 8 Exec. Order No. 12369, sec. 3(e), 3 C F.R. 190 (1983). 9 On the other hand, the subcommittee officially established by the Survey was held to be covered by FACA be­ cause it “is responsible for reviewing the task force reports and making detailed recommendations to the President and the affected federal agencies.” Notional Anti-Hunger Coalition, 711 F.2d at 1072. The D.C. Circuit panel also states in dictum that if the task force reports were in fact not exhaustively reviewed and revised by the Executive Committee, but were merely rubber-stamped recommendations given little or no independent consideration, it would be within a district court’s power to fin d that the provisions of FACA apply to the task forces as well. Id. at 1075-76. 10 As in our prior opinion, however, “[w]e must emphasize that our opinion should not in any way be read as support for attempting to use subcommittees to evade the . . . requirements o f FACA.” W ybrandt Memorandum at 9. 76 ies, agenda, or other documents” that are otherwise covered by FACA.11 The po­ tential conflict is underscored by the obligation to disclose committee drafts, working papers and studies, whereas exemption 5 is designed to preserve the in­ tegrity of precisely these types of “predecisional” internal deliberations from pub­ lic view.12 The two objectives, if not harmonized, would present an insurmount­ able internal statutory conflict. We conclude that exemption 5 is not generally applicable to materials prepared by or for an advisory committee, but that it does extend to protect privileged doc­ uments delivered from the agency to an advisory committee. This construction gives meaning to exemption 5 without vitiating Congress’ enumeration of de­ liberative documents such as working papers and drafts as subject to disclosure. It is also supported by a close reading of exemption 5 itself. Because by its terms exemption 5 protects only inter-agency and intra-agency documents and because an advisory committee is not an agency, documents do not receive the protection of exemption 5 by virtue of the fact that they are prepared by an advisory com­ mittee. On the other hand, documents prepared by an agency do not lose the pro­ tection of exemption 5 by virtue of the fact that they are delivered to an advisory committee.13 At the outset, we note that the application of FOIA to advisory committees in the FACA statute is not a model of draftsmanship.14 Most glaringly, Con­ gress incorporated the FOIA exemptions, yet gave no explicit consideration to 11 Pursuant to section 10(b), the right o f public access to deliberative committee documents expires when the “committee ceases to exist.” The material available for public inspection is thereafter restricted by the statute to the “report made by every advisory committee and, where appropriate, background papers prepared by consultants.” 5 U.S.C. app. I, § 13. The Director o f OMB is responsible for filing this matenal, subject to FOIA, with the Library of Congress where it is maintained for public inspection in a depository Id The depository materials will pre­ sumptively not include the preparatory matenal covered by section 10(b), such as working papers, drafts, studies, and agendas, unless the materials are incorporated in the committee report or are appropriate background papers prepared by consultants. 12 Exemption 5 in general protects agency documents that would normally be privileged in civil discovery. See NLRB v Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). To date, the Supreme Court has recognized five privi­ leges, including those expressly mentioned in the legislative history, as well as those that are “well-settled” in the case law or are “rough analogies” to privileges recognized by Congress. United States v. Weber Aircraft Corp., 465 U.S. 792, 801-02 (1984). The privilege primarily at issue in the intersection o f FOIA and FACA is that protecting advice and recommendations which are part o f the deliberative processes of government. In addition to deliberative process, exemption 5 protects attorney work product, Hickman v. Taylor, 329 U.S. 495, 509-10(1947); FTC v. Groher, Inc., 462 U.S 19,25-28 (1983), matters covered by attomey-client privilege, NLRB, 421 U.S. at 154, confidential commercial information generated to award contracts, Federal Open M arket Comm, o f the Fed Reserve Sys. v Merrill, 443 U.S 340, 360 (1979), third-party witness statements to military in­ vestigators, Weber Aircraft, 465 U.S. at 792, and perhaps other privileges as well, see Durns v. United States Dept o f Justice, 804 F.2d 701 (D.C. Cir.), reh’g en banc denied, 806 F.2d 1122 (D.C. Cir. 1986) (presentence reports); H ooverv. United States Dep't. o f In te rio r,6 \\ F.2d 1132, 1138-42 (5th Cir. 1980) (expert witness reports). 13 W e express no opinion on the operation o f exemption 5 in the context of a FOIA request to an agency 14 The courts have noted the ambiguity of the FACA statute generally, and the problems that would be created for the conduct o f government affairs by the literal application o f its terms See, e g , Natural Resources D efense Council v Herrington, 637 F. Supp. 116, 118-21 (D.D.C. 1986), National Anti-Hunger Coalition, 557 F. Supp at 530; Center fo r Auto Safety v. Tiemann, 414 F. Supp 215, 223 (D.D C. 1976), a f f d in part, 580 F.2d 689 (D.C. Cir 1978), Lombardo v Handler, 397 F. Supp. 792, 800 (D.D.C 1975), a ffd , 546 F 2d 1043 (D.C. C ir 1976), cert, denied, 4 3 1 U.S. 932 (1977). 77 the difficulties in squaring exemption 5 and section 10. The legislative record indicates in fact that minimal attention was given on the whole to the incorpo­ ration of FOIA or its intended operation in the particular context of advisory committees. On the Senate side, as described in the committee report from the Committee on Government Operations, the clean FACA bill sent to conference, S. 3529, re­ flected “a compromise between the mandatory requirements of openness and pub­ lic participation contained in S. 1637 and the permissive agency option for pub­ lic access contained in S. 2064 and S. 1964.” Congressional Research Service, 95th Cong., 2d Sess., Federal Advisory Committee Act 166 (Comm. Print 1978) (“Legislative History”). In tandem with this controversy about access to meet­ ings, the original three bills provided either for unrestricted access to committee records and reports, S. 163715 and S. 2064,16 or did not provide for any disclo­ sure of written material whatsoever, S. 1964.17 Based on the hearings and additional study, it was concluded, according to the Senate committee report, that despite “considerable opposition” “there was sub­ stantial merit in opening advisory committee deliberations and documentation to the public.” Id. In exchange for granting the public a right of access to meetings and documents, the protections o f FOIA were incorporated: “The exemptions un­ der the Freedom of Information Act were chosen because they had received the most thorough scrutiny and consideration by the Congress in this sensitive area between public disclosure and privileged information. Further, they seemed to meet most of the objections raised as to openness during the hearings.” 18 Id. at 166-67. The FOIA exemptions constituted a ready made legislative vehicle for balancing disclosure and privilege. The record, however, contains no additional 15 T he pertinent section o f S 1637, sec. 10(b), pertaining to reports and records provided: Each Federal agency shall make available to the public for inspection and copying the records and files, including agenda, transcrips [sic], studies, analyses, reports, and any other data compilations and w orking papers, which were made available to or prepared for or by each advisory committee. Such records shall be m aintained at a single location in each agency for a period of five years after the com ­ mittee ceases to exist. R eprinted in Legislative History at 135. 16 S. 2064 provided in section 12(d), in pertinent part, as follows: Each Federal agency shall make available to the public for inspection and copying the records and files, including agenda, transcripts, studies, analyses, reports, and any other data compilations and w orking papers, which were made available to or prepared for or by each agency advisory committee (except to the extent they deal with national security matter). R eprinted in Legislative History at 149. 17 S 1964 did, however, require in section 10(d) that the Comptroller General have access, “for the purpose of audit and exam ination, to any books, documents, papers, and records of each statutory advisory committee.” R eprinted in Legislative History at 143. 18 The opposition to open meetings came “ particularly from agencies whose committees dealt with such issues as national defense and foreign policy, trade secrets, matters relating to the regulation and supervision o f financial institutions and markets, and information concerning the competence and character of individuals, such as that taken up by the grant review committees o f the National Institutes o f Health, the National Science Foundation, and NASA.” See Legislative History at 166. 78 discussion that would suggest Congress was even aware of the potential conflict posed by exemption 5 as applied to section 10 of FACA.19 In the statute as enacted, the language of S. 3529 was adopted in full, but the structure was slightly altered. Rather than providing that all three sections would be subject to 552(b), section 10(b) was prefaced with the “[s]ubject to section 552” language. No further elucidation of the relation between FACA and FOIA was provided. Upon review, therefore, it seems fair to conclude that Congress broadly opted in favor of disclosure for advisory committees, but in response to specific problems raised, adopted FOIA as the vehicle for protecting certain classes of materials. Beyond that, however, Congress did not explain its inten­ tions with respect to the interaction of FOIA and FACA in general or of exemp­ tion 5 in particular. Absent apparent recognition by Congress of the problem, the proper applica­ tion intended for exemption 5 is necessarily drawn from the plain language of section 10(b). At least as to deliberative, predecisional materials, such as work­ ing papers, drafts, and studies, there appears to be no doubt that Congress in­ tended full disclosure. The enumeration in extensive detail of specific kinds of deliberative material subject to mandatory inspection and copying during the life of the committee provides the best evidence that the exemption 5 protection for deliberative materials was intended to have limited application as applied to FACA. The legislative history reinforces the view that Congress intended the narrow application of exemption 5 to FACA. In particular, key legislators made numer­ ous and essentially uncontradicted statements that they intended the public to be in a position to affect the committee’s deliberations and that they fully intended to provide the public with access to deliberative committee materials during the committee’s lifetime. For example, in sponsoring the bill on the Senate floor, Senator Metcalf, as acting subcommittee chairman within the Committee on Gov­ ernment Operations, which submitted S. 3529, stated:20 19 The House bill, H.R. 4383, as amended, is even less illuminating In substance, the provision concerning re­ ports and records seems to be closely analogous to S. 3529: “The provisions of section 552 o f title 5, United States Code, shall apply to all records and files, including agenda, transcripts, studies, analyses, reports, meeting notices, and any other data, compilations, and working papers which were made available to or prepared for or by each ad­ visory committee.” Legislative History at 303. Yet the House committee report impliedly states that the reference to 552 is actually to 552(a), namely that portion o f FOIA that broadly states the obligation to disclose, rather than to 552(b), which sets forth the nine exemptions: This provision has the effect of assuring openness in the operations o f advisory committees. This provision coupled with the requirement that complete and accurate minutes o f committee meetings be kept serves to prevent the surreptitious use o f advisory committees to further the interests o f any spe­ cial interest group. Along with the provisions for balanced representation contained in § 4 o f the bill, this requirement o f openness is a strong safeguard o f the public interest. Legislative History at 280. 20 In much the same vein, the subcommittee report accompanying S. 3529 quotes Senator M etcalf’s remarks opening subcommittee hearings. His language, while not entirely unambiguous, would again strongly suggest that the rationale for access to committee papers includes, rather than excludes, influence on the deliberative process: Those who get information to policymakers, or get information for them, can benefit their cause, whatever it may be. Outsiders can be adversely and unknowingly affected. And decision-makers who 79 Further evidence has shown that there exists a tendency among advisory committees to operate in a closed environment, permit­ ting little opportunity for the public to be informed of their delib­ erations and recommendations, and o f the materials and infor­ mation on which they rely. . . . Thus, the legislation provides both a housekeeping function in the interests of efficiency and economy in Government and a func­ tion of disclosure and objective counsel— so that the public will know what advice their Government is getting and how they might add their contribution to the information process. Legislative History at 198 (emphasis added). On the House side, Congressman Moorhead supported H.R. 4383, as amended, emphasizing the following: Another feature of the bill which must be applauded is the re­ quirement for public access to the deliberations and recommen­ dations of these advisory committees. All too often, such com­ mittees meet behind closed doors, and submit advice to Executive departments without any opportunity for the public to comment on or be aware of the purport of such advice. Legislative History at 297. Moreover, this construction is also supported by a close reading of the express terms of exemption 5, which protects only inter-agency and intra-agency mem­ orandums. These terms do not apply to documents prepared by and in the pos­ session of an advisory committee because an advisory committee within the meaning of FACA is neither an agency nor a sub-group within an agency.21FACA specifically distinguishes between an advisory committee and an agency in its section defining statutory terms, making clear that an advisory committee is not 20 (. . . continued) get information from special interest groups who are not subject to rebuttal because opposing inter­ ests do not know about meetings — and could not get in the door if they did— may not make tempered judgm ents. We are looking at two fundam entals, disclosure and counsel, the rights o f people to fin d out what is going on and, i f they want, to do something about it. S. Rep. No. 1098, 92d Cong., 2d Sess at 4 (1972), reprinted in Legislative History at 154 (emphasis added). These views are seconded by Senator Percy: The second m ajor element of the bill is its provisions fo r opening up advisory committees to pub­ lic scrutiny During the extensive hearings . . we becam e convinced that there were too many in­ stances where advisory committees w ere consulting with Government offices on important policies and decisions w ithout an adequate guarantee that the public interest was being served Meetings are typically closed to the public Minutes and documents used in meetings are typically not available for public inspection. Rem arks o f Senator Percy, 118 Cong. Rec. 30,274 (1972), reprinted in Legislative History at 202 (endorsing S. 3529). 21 D ecisions under FOIA hold that exemption 5 applies when an agency document in the possession of an agency has been transmitted by a non-agency such as Congress, see infra note 29 O ur conclusion, however, applies only to documents that are neither prepared by an agency nor in an agency’s possession. 80 an agency. It defines the term agency to have the same meaning as used in FOIA, 5 U.S.C. app. I, § 3(3),22 whereas it defines “advisory committee” as “any com ­ mittee, board, commission, council, conference, panel, task force, or other sim­ ilar group, or any subcommittee or other subgroup thereof’ established by statute or reorganization plan or utilized by the President or one or more agencies “in the interest of obtaining advice or recommendations.” 5 U.S.C. app. I, § 3(2). More broadly, FACA is predicated on the assumption, emphasized several times in the statute, that advisory committees give advice and recommendations,23 whereas agencies are operating arms of government characterized by “substan­ tial independent authority in the exercise of specific functions,” Soucie v. David, 448 F.2d at 1073, or the “authority in law to make decisions.” Washington Re­ search Project, Inc. v. HEW, 504 F.2d 238,248 (D.C. Cir. 1974). Several courts,24 as well as this Office,25 have construed the statutory distinction to signify that advisory committees are not agencies 26 22 Pursuant to 5 U.S.C. § 551(1), the term “agency” is defined, subject to exceptions, as “each authority o f the Government of the United States, whether or not it is within or subject to review by another agency.” 23 FACA in several provisions underscores the self-evident function o f advisory committees to provide advice. See, e g , 5 U.S.C. app. I, § 2(6) (“the function o f advisory committees should be advisory only”); 5 U.S.C. app. 1, § 9(b) (“ Unless otherwise specifically provided by statute or Presidential directive, advisory committees shall be utilized solely for advisory functions.”). See also Legislative History at 197-98 (Among the enumerated purposes of S 3529 is “to assure that the functions o f Federal advisory committees shall be advisory only and that all mat­ ters under their consideration shall be determined solely by Federal officials and agencies ”). To the extent FACA recognizes that advisory committees in individual circumstances might exceed their advisory function, 5 U.S.C. app I, § 9(b), (c)(F), the general conclusion that advisory committees are not agencies or divisions of agencies would need to be evaluated based on the specific powers and activities o f the committee 24 See, e.g , Nader v. Dunlop, 370 F. Supp. 177, 178-79 (D.D.C. 1973) (exemption 5 does not exempt from pub­ lic access meetings o f advisory committees to the Cost o f Living Council); Gates v. Schlesinger, 366 F. Supp. 797, 798-800 (D D C. 1973) (same with respect to advisory committee to Department o f Defense) These two cases ap­ ply to meetings, 5 U.S C app. I, § 10(d), not documentary disclosure, 5 U.S.C. app. I, § 10(b), but because they preceded the 1976 amendment to FACA which eliminated the availability of exemption 5 for meetings, but not for documents, the reasoning is applicable to documentary materials under the statute as presently written 25 Memorandum for the Clemency Board, from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel (Sept 24, 1974) (explaining that if advisory committees were considered to be agencies, the full panoply of requirements mandated by the Administrative Procedure Act would apply to committee operations). 26 We are aware o f no language in FACA’s legislative history supporting the construction that advisory com ­ mittees are agencies. One possible exception is a remark by Congressman Thone in reference to a provision in the House bill regarding access to advisory committee documents filed with the Library of Congress* Subsection (b) provides that the Freedom o f Information Act is applicable to this section. This should remove any doubt as to whether advisory committees are subject to the Freedom of Information Act. Otherwise, 1 assume, it might be argued that advisory committees do not fall within the definition o f agency in section 551(1) o f the Freedom o f Information Act and are, therefore, not subject to the act. 118 Cong. Rec 16,298(1972). This isolated remark about a provision collateral to section 10 carries little weight, especially since it runs counter to the statute’s language and other legislative history See, e g , Ernst & Ernst v Hochfelder, 425 U S. 185, 203 n.24 (1976); NLRB v Fruit Packers, 377 U.S. 58, 66 (1964) Moreover, the substance of the remark is am ­ biguous. The congressman may have intended to say that advisory committees are agencies or, alternatively, that the Act expressly makes FOIA applicable to FACA, and therefore avoids any question whether FOIA is independently applicable to advisory committees as agencies. See, e g , Memorandum for the Clemency Board, from An­ tonin Scalia, Assistant Attorney General, Office o f Legal Counsel at 9 (Sept. 24, 1974) (“There are two routes by which the Freedom o f Information Act may be applied to the Board. One is through the Federal Advisory C om ­ mittee Act. A second possible route is through the Administrative Procedure Act, of which the Freedom of Infor­ mation Act is a part, if the [Clemency] Board is to be regarded as an agency, as that term is defined in the A dmin­ istrative Procedure Act.”) 81 For similar reasons, an advisory committee cannot be deemed a component within an agency whose deliberative documents are subject to exemption 5. The Act requires that all legislation authorizing an advisory committee “assure that the advice and recommendations of the advisory committee . . . not be inappro­ priately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment.” 5 U.S.C. app. I, § 5(b)(3). The emphasis on independence, and on judgment, highlights the separation of committees from agencies, as do the provisions for independent staffing, 5 U.S.C. app. I, § 5(b)(4), temporary duration, 5 U.S.C. app. I, § 14, the prohibition of committees composed wholly of full-time federal officials or em­ ployees, 5 U.S.C. app. I, § 3(2), and the requirement that “[n]o advisory com­ mittee shall meet or take any action until an advisory committee charter has been filed” with the appropriate authority, 5 U.S.C. app. I, § 9(c). As the district court in Gates, 366 F. Supp. at 799, observed: “[T]he exchange of information does not make an advisory committee ‘part of’ its government agency.” The committee is not an internal organ, but again by its very nature, is a group o f ‘outsiders’ called upon because of their expertise to offer views and comments unavailable within the agency.27 In short, given that an advisory committee is neither an agency itself nor a component of an agency, exemption 5 cannot gen­ erally apply to FACA advisory committees’ documents since by its terms it only protects “inter-agency and intra-agency memorandums.”28 On the other hand, by its express terms exemption 5 would apply to delibera­ tive documents prepared by an agency and delivered to the advisory committee.29 27 Moreover, the Senate report urges that advisory committees not be formed if the agency can accomplish the advisory work imemaUy Advisory committees are plainly meant to supplement agency resources, not duplicate them. A lthough the Act authorizes agency officials to call and adjourn meetings, 5 U.S.C. app. I, § 10(e) and (f), and broadly m onitor the operation of advisory committees established by an agency, 5 U.S.C. app. I, § 8, these pro­ visions implement the A ct’s designated purpose to rein in the operation of advisory committees, not place them within the jurisdictional confines of the agency or subject them to agency mandate on the substantive issue under review by the committee 28 W e recognize that under FOIA the courts have ruled on several occasions that materials supplied to an agency by outside experts and consultants, see, e g., H oover v United States D ep’t o f Interior, 611 F.2d 1132, 1138 (5th Cir. 1980) (report o f pnvate appraiser); Lead Industries A ss'n v. OSHA, 610 F.2d 70, 83 (2d Cir. 1979) (analyses o f scientific testimony prepared by consultants); or the courts, see Durns v Bureau o f Prisons, 804 F.2d 701 (D D.C. 1986) (presentence reports); or Congress, see, e.g., Ryan v Departm ent o f Justice, 617 F.2d 781,789-90 (D.C. Cir. 1980) (Senators’ responses to agency’s questionnaire intra-agency records), fall within exemption 5— thereby loosely construing the meaning o f “intra-agency.” This line o f cases, however, does not alter our conclusion that an advisory committee cannot invoke exemption 5 ’s inter-agency exemption to protect materials prepared by it and in its possession. These cases simply stand fo r the proposition that an agency may protect certain documents in its possession from disclosure. Accordingly, u n d er this line of cases, when an agency makes use of advisory materi­ als, such materials may indeed properly become deliberative documents to the agency. Section 10(b), however, im­ poses disclosure requirements on the advisory committee itself. 29 This is consistent with the holding in Aviation Consumer Action Project v Washburn, 535 F.2d 101, 107-08 (D.C. Cir. 1976) that agencies may disclose predecisional documents to advisory committees without waiving their ability to protect the records under exemption 5, at least where such disclosures further the “free and candid ex­ change o f ideas during the process of decision-making.” It is also consistent with FOIA caselaw holding that the delivery o f internal documents to Congress does not necessarily vitiate exemption 5 protection. See, e g , Leteher v United States Dept, o f Justice, 3 GDS 82,257, 82,714 (D.D.C. 1982) ("documents reflecting consultations be­ tween CIA and Congress are protected by exem ption 5 since such consultations are an integral part o f the deliber­ ative process and to discuss this process in public view would inhibit frank discussions”); Allen v Department o f D efense, 580 F. Supp 74, 83 (D D.C. 1983) (“exemption 5 may, in an appropriate case, be applied to agency-con­ gressional communications”). 82 Accordingly, our construction still gives vitality to exemption 5 in the context of section 10(b) disclosure requirements. Under this construction, documents trans­ mitted to an advisory committee by an agency do not lose the protection of an agency’s deliberative process exemption under FOIA. Conclusion For the foregoing reasons, exemption 5 properly applies under FACA when the agency has transmitted to an advisory committee a document that would be protected from disclosure if in the possession of the agency. Under the detailed enumeration of covered materials in section 10 of FACA, however, the advisory committees must, as a general matter, disclose the materials “made available to” the committee, “prepared by” the committee or “prepared for” the committee, so long as the committee is utilized or established by the President, an agency, or statute or reorganization plan, and then only “until the advisory committee ceases to exist.” 5 U.S.C. app. I, § 10(b). John O. M c G in n is Deputy Assistant Attorney General Office of Legal Counsel 83

Write a legal research memo on the following topic.

Disclosure of Advisory Committee Deliberative Materials T he Federal Advisory C om m ittee Act requires advisory com m ittees to m ake available for public in­ spection w ritten advisory com m ittee docum ents, including predecisional m aterials such as drafts, w orking papers and studies. T he disclosure exem ption available to agencies under exem ption 5 o f the Freedom o f Inform ation A ct for predecisional docum ents and other privileged m aterials is narrowly lim ited in the context o f the Federal Advisory C om m ittee Act to privileged inter-agency or intra-agency docum ents p re ­ pared by an agency and transm itted to an advisory com m ittee. April 29, 1988 M e m o r a n d u m O p in io n f o r t h e A s s is t a n t A t t o r n e y G e n e r a l O f f ic e o f L e g a l P o l ic y Introduction and Summary This responds to your request for the views of this Office concerning the ex­ tent to which exemption 5 of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, is available to withhold deliberative materials prepared by an advisory committee that would otherwise be subject to the disclosure requirements of sec­ tion 10(b) of the Federal Advisory Committee Act, 5 U.S.C. app. I (“FACA”).' Section 10(b) provides in pertinent part that “[s]ubject to section 552 of title 5, 1 This memorandum addresses only exemption 5 of FOIA To the extent one of the other eight statutory ex­ emptions applies, the covered documents are independently protected from disclosure. We also emphasize both that separation o f powers may preclude Congress from applying FACA to certain advisory groups and that documents subject to the disclosure requirements of section 10(b) may be withheld pursuant to a valid claim o f executive priv­ ilege. We do not here address these constitutional bases for withholding documents but observe that several courts have described the threat posed by a literal reading o f FACA to presidential powers See.e g , National Anti-Hunger Coalition v. Executive Comm o f the President’s Private Sector Survey on Cost Control, 557 F. Supp. 524, 530 (D.D.C.), o ff d and remanded, 711 F.2 d l0 7 1 (D C Cir.), judgm ent amended, 566 F. Supp. 1515 (D.D.C. 1983) (FACA is “obscure, imprecise, and open to interpretations so broad that it would threaten to impinge unduly upon prerogatives preserved by the separation o f powers doctrine”); Nader v Baroody, 396 F. Supp 1231, 1234 (D D.C. 1975), vacated as moot. No 75-1969 (D.C Cir Jan. 10, 1977) (“Nowhere is there an indication that Con­ gress intended to intrude upon the day-to-day functioning of the presidency___ "). Thus, for example, it is the gov­ ernm ent’s position that the American Bar Association Standing Committee on the Federal Judiciary is not “uti­ lized” by the President and therefore not subject to FACA, o r alternatively, that the application of FACA to the ABA Committee would unconstitutionally impinge on the President’s exclusive authority to nominate and appoint Article III judges, subject to the advice and consent function o f the Senate. U.S. Const, art. II, § 2, cl. 2. Washing­ ton Legal Found v. United States Dept, o f Justice, 691 F. Supp. 483 (D D C. 1988) In addition, congressional dis­ closure statutes, including FACA, necessarily raise separation o f powers and executive privilege issues as applied to communications among the President and his advisors and advice prepared for the President by his advisors See, e g ,N ix o n v. G eneralServ Admin. ,433 U.S. 425,441-55 (1977); Soucie v Daw*/, 448 F 2d 1067, 1073 (D.C. Cir. 1971); National Anti-Hunger Coalition, 557 F. Supp. at 530. Because the operation of presidential powers in the context of FACA is not the subject o f the present inquiry directed to this Office, the discussion herein is simply meant to be illustrative. 73 United States Code, the records, reports, transcripts, minutes, appendixes, work­ ing papers, drafts, studies, agenda, or other documents which were made avail­ able to or prepared for or by each advisory committee shall be available for pub­ lic inspection.”2 Exemption 5 o f FOIA exempts inter-agency and intra-agency deliberative or predecisional documents from disclosure.3 The issue presented is the scope to be given to exemption 5 in light of section 10(b)’s enumeration of deliberative documents such as working papers and drafts as being specifically subject to disclosure.4 We conclude that FACA requires disclosure of written advisory committee documents, including predecisional materials such as drafts, working papers, and studies.5 The disclosure exemption available to agencies under exemption 5 of FOIA for predecisional documents and other privileged materials is narrowly limited in the context of FACA to privileged “inter-agency or intra-agency” doc­ uments prepared by an agency and transmitted to an advisory committee. The language of the FACA statute and its legislative history support this restrictive application of exemption 5 to requests for public access to advisory committee 2 Section 10(b) o f FACA reads in full: Subject to section 552 o f title 5, U nited States Code, the records, reports, transcripts, minutes, ap­ pendixes, working papers, drafts, studies, agenda, or other documents which were made available to o r prepared for or by each advisory com m ittee shall be available for public inspection and copying at a single location in the offices of the advisory committee o r the agency to which the advisory com­ m ittee reports until the advisory committee ceases to exist. 3 Exemption 5, 5 U.S.C. § 552(b)(5), provides that the disclosure obligations of FOIA do not “apply to matters that are— (5) inter-agency or intra-agency memorandums o r letters which would not be available by law to a party other than an agency in litigation with the agency ” 4 Public Citizen Litigation Group has also requested DOJ to issue a policy statement clarifying that the deliber­ ative process exemption does not “shield from public scrutiny” the drafts, working papers, and other deliberative documents prepared by advisory committees. Public Citizen represented the ACLU in its suit to enjoin the Attor­ ney G eneral’s Commission on Pornography from holding meetings until it released drafts and working papers. A C L U v Attorney G eneral's Commission on Pornography, D epartment o f Justice, No. 86-0893 (D.D.C. filed Apr. 3, 1986) Although the Commission initially asserted that the documents were covered by exemption 5 as incor­ porated by FACA, the parties stipulated a settlement providing for release o f the documents and the suit was with­ drawn s This Office has not previously addressed this issue directly Soon after FACA was enacted, we noted the po­ tential conflict between exem ption 5 and section 10, but did not opine on the proper resolution of the issue Mem­ orandum for Dwight A. Ink, Assistant Director, Office o f Management and Budget, from Roger C. Cramton, As­ sistant Attorney General, Office o f Legal Counsel, Re Treatment o f Exemption 5 o f the Freedom o f Information Act in D enying Access to M eetings and Records o f Federal Advisory Committees (Jan. 2, 1973) In 1974, we ad­ vised the Clemency Board that it was an advisory committee and therefore subject to the disclosure provisions of FACA The memorandum by Assistant Attorney General Antonin Scalia identified three potentially applicable FOIA exem ptions, but conspicuously did not cite exemption 5. Memorandum for the Clemency Board, from An­ tonin Scalia, Assistant Attorney General, O ffice o f Legal Counsel (Sept. 24, 1974). In 1982, in the process of ren­ dering an opinion that activities by staff members on task forces to President’s Pnvate Sector Survey on Cost Con­ trol did not fall within the ambit o f FACA, we noted in dicta and without analysis that materials made available to com m ittee had to be m ade available to the public under section 10(b), unless exempted under FOIA, in which case it “need not be made publicly available under 10(b) o f FACA.” Memorandum for Fred F. Fielding, Counsel to the President, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re. President’s Private Sector Survey on Cost C ontrol at 7 (Nov. 1, 1982) We also opined in 1982 that advisory committee documents are available through FOLA requests made to the supervising agency and that the advisory committee must cooperate, but we did not specifically address the impact o f exemption 5 Memorandum for Fred F. Fielding, Counsel to the President, from Larry L. Simms, Deputy A ssistant Attorney General, Office o f Legal Counsel, Re: Applicability o f the Freedom o f Information Act to Federal Advisory Committee (Dec. 30, 1982). 74 documents. Moreover, since an advisory committee is not itself an agency, this construction is supported by the express language of exemption 5 which applies only to inter-agency or intra-agency materials.6 We emphasize that despite these conclusions many documents that are part of the advisory committee process will not be subject to disclosure. Section 10(b) itself applies only to materials made available to or prepared for or by an advi­ sory committee established by statute or reorganization plan or established or uti­ lized by the President or an agency. 5 U.S.C. app. I, §§ 3(2), 10(b). Accordingly, in determining whether a document is to be disclosed the first issue is not whether it is subject to an exemption under 5 U.S.C. § 552 but whether it meets this thresh­ old definition. Analysis A. Defining the Class of Documents to which Section 10(b) Applies. By the express terms of section 10(b), deliberative materials, in order to be subject to disclosure, must be “made available to or prepared for or by” an advi­ sory committee, 5 U.S.C. app. I, § 10(b), which is established by statute or reor­ ganization plan or “established or utilized by the President” or an agency. Id. § 3(2)(B) (emphasis added).7 The courts and this Office have construed the con­ cept of advisory committees established or utilized by the President or an agency to preclude section 10(b)’s application to the work prepared by a staff member of an advisory committee or a staffing entity within an advisory committee, such as an independent task force limited to gathering information, or a subcommit­ tee of the advisory committee that is not itself established or utilized by the Pres­ ident or agency, so long as the material was not used by the committee as a whole. The reasoning behind the construction of the concept is straightforward: [Such staffing entities or subcommittees] do not directly advise the President or any federal agency, but rather provide informa­ tion and recommendations for consideration to the Committee. Consequently, they are not directly “established or utilized” by the President or any agency . . . . See National Anti-Hunger Coalition, 557 F. Supp. at 529. See also Memoran­ dum for Fred H. Wybrandt, Chairman, National Crime Information Center Ad­ 6 We do not address or express any opinion in this memorandum on the separate issue of the disclosure obliga­ tions of the agency under FOIA with respect to written materials delivered from an agency advisory committee to an agency. 7 FACA defines an advisory committee as “any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof, . . which is— (A) established by statute or reorganization plan, or (B) established or utilized by the President, or (C) established or utilized by one or more agencies, in the interest o f obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government.” 5 U S.C. app I, § 3(2). 75 visory Policy Board, from Douglas W. Kmiec, Deputy Assistant Attorney Gen­ eral, Office of Legal Counsel (Apr. 28,1987) (“Wybrandt Memorandum”). This limitation on section 10(b)’s disclosure requirement has important practical con­ sequences. For example, the President established a presidential advisory com­ mittee, the President’s Private Sector Survey on Cost Control (“Survey”), funded by the Department of Commerce, but whose staff had to be paid for by the pri­ vate sector.8 A non-profit Foundation for the Survey, chaired by members of the Executive Committee, organized the private staff into thirty-six task forces to gather information, perform studies, and draft recommendations and reports for the Executive Committee. Based on this structure, the district and appellate courts concluded that the non-profit task forces were not subject to FACA because they did not provide advice directly to the President or any agency, but rather per­ formed activities analogous to staff work. National Anti-Hunger Coalition, 557 F. Supp. at 529-30; 711 F.2d at 1075-76.9 Based on the same reasoning, as well as an exhaustive survey of the FACA legislative history, this Office recently concluded that subcommittees of the Na­ tional Crime Information Center (“NCIC”) Advisory Policy Board are likewise not covered by FACA because they “perform preparatory work or professional staff functions in aid of, but not displacing, the actual advisory committee func­ tion performed by the Board.” Wybrandt Memorandum at 1.10Although each ad­ visory committee structure will determine the results in a particular case, the gen­ eral point can be made that FACA compels disclosure of a limited subset of information, namely the material used by the advisory committee or subgroup established or utilized by the ultimate decision-maker, which typically will be an agency or the President. B. The Scope of Exemption 5 in the Context o f Section 10(b)’s Disclosure Requirements. Assuming that documents are subject to section 10(b), we turn to the scope of FO IA ’s exemption 5 under FACA. First, it is necessary to presume that Congress did not intend to create an irreconcilable conflict between the two laws; i.e., on the one hand, to protect deliberative advisory committee materials from public inspection via exemption 5, but on the other, to order detailed disclosure of all “records, reports, transcripts, minutes, appendixes, working papers, drafts, stud­ 8 Exec. Order No. 12369, sec. 3(e), 3 C F.R. 190 (1983). 9 On the other hand, the subcommittee officially established by the Survey was held to be covered by FACA be­ cause it “is responsible for reviewing the task force reports and making detailed recommendations to the President and the affected federal agencies.” Notional Anti-Hunger Coalition, 711 F.2d at 1072. The D.C. Circuit panel also states in dictum that if the task force reports were in fact not exhaustively reviewed and revised by the Executive Committee, but were merely rubber-stamped recommendations given little or no independent consideration, it would be within a district court’s power to fin d that the provisions of FACA apply to the task forces as well. Id. at 1075-76. 10 As in our prior opinion, however, “[w]e must emphasize that our opinion should not in any way be read as support for attempting to use subcommittees to evade the . . . requirements o f FACA.” W ybrandt Memorandum at 9. 76 ies, agenda, or other documents” that are otherwise covered by FACA.11 The po­ tential conflict is underscored by the obligation to disclose committee drafts, working papers and studies, whereas exemption 5 is designed to preserve the in­ tegrity of precisely these types of “predecisional” internal deliberations from pub­ lic view.12 The two objectives, if not harmonized, would present an insurmount­ able internal statutory conflict. We conclude that exemption 5 is not generally applicable to materials prepared by or for an advisory committee, but that it does extend to protect privileged doc­ uments delivered from the agency to an advisory committee. This construction gives meaning to exemption 5 without vitiating Congress’ enumeration of de­ liberative documents such as working papers and drafts as subject to disclosure. It is also supported by a close reading of exemption 5 itself. Because by its terms exemption 5 protects only inter-agency and intra-agency documents and because an advisory committee is not an agency, documents do not receive the protection of exemption 5 by virtue of the fact that they are prepared by an advisory com­ mittee. On the other hand, documents prepared by an agency do not lose the pro­ tection of exemption 5 by virtue of the fact that they are delivered to an advisory committee.13 At the outset, we note that the application of FOIA to advisory committees in the FACA statute is not a model of draftsmanship.14 Most glaringly, Con­ gress incorporated the FOIA exemptions, yet gave no explicit consideration to 11 Pursuant to section 10(b), the right o f public access to deliberative committee documents expires when the “committee ceases to exist.” The material available for public inspection is thereafter restricted by the statute to the “report made by every advisory committee and, where appropriate, background papers prepared by consultants.” 5 U.S.C. app. I, § 13. The Director o f OMB is responsible for filing this matenal, subject to FOIA, with the Library of Congress where it is maintained for public inspection in a depository Id The depository materials will pre­ sumptively not include the preparatory matenal covered by section 10(b), such as working papers, drafts, studies, and agendas, unless the materials are incorporated in the committee report or are appropriate background papers prepared by consultants. 12 Exemption 5 in general protects agency documents that would normally be privileged in civil discovery. See NLRB v Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). To date, the Supreme Court has recognized five privi­ leges, including those expressly mentioned in the legislative history, as well as those that are “well-settled” in the case law or are “rough analogies” to privileges recognized by Congress. United States v. Weber Aircraft Corp., 465 U.S. 792, 801-02 (1984). The privilege primarily at issue in the intersection o f FOIA and FACA is that protecting advice and recommendations which are part o f the deliberative processes of government. In addition to deliberative process, exemption 5 protects attorney work product, Hickman v. Taylor, 329 U.S. 495, 509-10(1947); FTC v. Groher, Inc., 462 U.S 19,25-28 (1983), matters covered by attomey-client privilege, NLRB, 421 U.S. at 154, confidential commercial information generated to award contracts, Federal Open M arket Comm, o f the Fed Reserve Sys. v Merrill, 443 U.S 340, 360 (1979), third-party witness statements to military in­ vestigators, Weber Aircraft, 465 U.S. at 792, and perhaps other privileges as well, see Durns v. United States Dept o f Justice, 804 F.2d 701 (D.C. Cir.), reh’g en banc denied, 806 F.2d 1122 (D.C. Cir. 1986) (presentence reports); H ooverv. United States Dep't. o f In te rio r,6 \\ F.2d 1132, 1138-42 (5th Cir. 1980) (expert witness reports). 13 W e express no opinion on the operation o f exemption 5 in the context of a FOIA request to an agency 14 The courts have noted the ambiguity of the FACA statute generally, and the problems that would be created for the conduct o f government affairs by the literal application o f its terms See, e g , Natural Resources D efense Council v Herrington, 637 F. Supp. 116, 118-21 (D.D.C. 1986), National Anti-Hunger Coalition, 557 F. Supp at 530; Center fo r Auto Safety v. Tiemann, 414 F. Supp 215, 223 (D.D C. 1976), a f f d in part, 580 F.2d 689 (D.C. Cir 1978), Lombardo v Handler, 397 F. Supp. 792, 800 (D.D.C 1975), a ffd , 546 F 2d 1043 (D.C. C ir 1976), cert, denied, 4 3 1 U.S. 932 (1977). 77 the difficulties in squaring exemption 5 and section 10. The legislative record indicates in fact that minimal attention was given on the whole to the incorpo­ ration of FOIA or its intended operation in the particular context of advisory committees. On the Senate side, as described in the committee report from the Committee on Government Operations, the clean FACA bill sent to conference, S. 3529, re­ flected “a compromise between the mandatory requirements of openness and pub­ lic participation contained in S. 1637 and the permissive agency option for pub­ lic access contained in S. 2064 and S. 1964.” Congressional Research Service, 95th Cong., 2d Sess., Federal Advisory Committee Act 166 (Comm. Print 1978) (“Legislative History”). In tandem with this controversy about access to meet­ ings, the original three bills provided either for unrestricted access to committee records and reports, S. 163715 and S. 2064,16 or did not provide for any disclo­ sure of written material whatsoever, S. 1964.17 Based on the hearings and additional study, it was concluded, according to the Senate committee report, that despite “considerable opposition” “there was sub­ stantial merit in opening advisory committee deliberations and documentation to the public.” Id. In exchange for granting the public a right of access to meetings and documents, the protections o f FOIA were incorporated: “The exemptions un­ der the Freedom of Information Act were chosen because they had received the most thorough scrutiny and consideration by the Congress in this sensitive area between public disclosure and privileged information. Further, they seemed to meet most of the objections raised as to openness during the hearings.” 18 Id. at 166-67. The FOIA exemptions constituted a ready made legislative vehicle for balancing disclosure and privilege. The record, however, contains no additional 15 T he pertinent section o f S 1637, sec. 10(b), pertaining to reports and records provided: Each Federal agency shall make available to the public for inspection and copying the records and files, including agenda, transcrips [sic], studies, analyses, reports, and any other data compilations and w orking papers, which were made available to or prepared for or by each advisory committee. Such records shall be m aintained at a single location in each agency for a period of five years after the com ­ mittee ceases to exist. R eprinted in Legislative History at 135. 16 S. 2064 provided in section 12(d), in pertinent part, as follows: Each Federal agency shall make available to the public for inspection and copying the records and files, including agenda, transcripts, studies, analyses, reports, and any other data compilations and w orking papers, which were made available to or prepared for or by each agency advisory committee (except to the extent they deal with national security matter). R eprinted in Legislative History at 149. 17 S 1964 did, however, require in section 10(d) that the Comptroller General have access, “for the purpose of audit and exam ination, to any books, documents, papers, and records of each statutory advisory committee.” R eprinted in Legislative History at 143. 18 The opposition to open meetings came “ particularly from agencies whose committees dealt with such issues as national defense and foreign policy, trade secrets, matters relating to the regulation and supervision o f financial institutions and markets, and information concerning the competence and character of individuals, such as that taken up by the grant review committees o f the National Institutes o f Health, the National Science Foundation, and NASA.” See Legislative History at 166. 78 discussion that would suggest Congress was even aware of the potential conflict posed by exemption 5 as applied to section 10 of FACA.19 In the statute as enacted, the language of S. 3529 was adopted in full, but the structure was slightly altered. Rather than providing that all three sections would be subject to 552(b), section 10(b) was prefaced with the “[s]ubject to section 552” language. No further elucidation of the relation between FACA and FOIA was provided. Upon review, therefore, it seems fair to conclude that Congress broadly opted in favor of disclosure for advisory committees, but in response to specific problems raised, adopted FOIA as the vehicle for protecting certain classes of materials. Beyond that, however, Congress did not explain its inten­ tions with respect to the interaction of FOIA and FACA in general or of exemp­ tion 5 in particular. Absent apparent recognition by Congress of the problem, the proper applica­ tion intended for exemption 5 is necessarily drawn from the plain language of section 10(b). At least as to deliberative, predecisional materials, such as work­ ing papers, drafts, and studies, there appears to be no doubt that Congress in­ tended full disclosure. The enumeration in extensive detail of specific kinds of deliberative material subject to mandatory inspection and copying during the life of the committee provides the best evidence that the exemption 5 protection for deliberative materials was intended to have limited application as applied to FACA. The legislative history reinforces the view that Congress intended the narrow application of exemption 5 to FACA. In particular, key legislators made numer­ ous and essentially uncontradicted statements that they intended the public to be in a position to affect the committee’s deliberations and that they fully intended to provide the public with access to deliberative committee materials during the committee’s lifetime. For example, in sponsoring the bill on the Senate floor, Senator Metcalf, as acting subcommittee chairman within the Committee on Gov­ ernment Operations, which submitted S. 3529, stated:20 19 The House bill, H.R. 4383, as amended, is even less illuminating In substance, the provision concerning re­ ports and records seems to be closely analogous to S. 3529: “The provisions of section 552 o f title 5, United States Code, shall apply to all records and files, including agenda, transcripts, studies, analyses, reports, meeting notices, and any other data, compilations, and working papers which were made available to or prepared for or by each ad­ visory committee.” Legislative History at 303. Yet the House committee report impliedly states that the reference to 552 is actually to 552(a), namely that portion o f FOIA that broadly states the obligation to disclose, rather than to 552(b), which sets forth the nine exemptions: This provision has the effect of assuring openness in the operations o f advisory committees. This provision coupled with the requirement that complete and accurate minutes o f committee meetings be kept serves to prevent the surreptitious use o f advisory committees to further the interests o f any spe­ cial interest group. Along with the provisions for balanced representation contained in § 4 o f the bill, this requirement o f openness is a strong safeguard o f the public interest. Legislative History at 280. 20 In much the same vein, the subcommittee report accompanying S. 3529 quotes Senator M etcalf’s remarks opening subcommittee hearings. His language, while not entirely unambiguous, would again strongly suggest that the rationale for access to committee papers includes, rather than excludes, influence on the deliberative process: Those who get information to policymakers, or get information for them, can benefit their cause, whatever it may be. Outsiders can be adversely and unknowingly affected. And decision-makers who 79 Further evidence has shown that there exists a tendency among advisory committees to operate in a closed environment, permit­ ting little opportunity for the public to be informed of their delib­ erations and recommendations, and o f the materials and infor­ mation on which they rely. . . . Thus, the legislation provides both a housekeeping function in the interests of efficiency and economy in Government and a func­ tion of disclosure and objective counsel— so that the public will know what advice their Government is getting and how they might add their contribution to the information process. Legislative History at 198 (emphasis added). On the House side, Congressman Moorhead supported H.R. 4383, as amended, emphasizing the following: Another feature of the bill which must be applauded is the re­ quirement for public access to the deliberations and recommen­ dations of these advisory committees. All too often, such com­ mittees meet behind closed doors, and submit advice to Executive departments without any opportunity for the public to comment on or be aware of the purport of such advice. Legislative History at 297. Moreover, this construction is also supported by a close reading of the express terms of exemption 5, which protects only inter-agency and intra-agency mem­ orandums. These terms do not apply to documents prepared by and in the pos­ session of an advisory committee because an advisory committee within the meaning of FACA is neither an agency nor a sub-group within an agency.21FACA specifically distinguishes between an advisory committee and an agency in its section defining statutory terms, making clear that an advisory committee is not 20 (. . . continued) get information from special interest groups who are not subject to rebuttal because opposing inter­ ests do not know about meetings — and could not get in the door if they did— may not make tempered judgm ents. We are looking at two fundam entals, disclosure and counsel, the rights o f people to fin d out what is going on and, i f they want, to do something about it. S. Rep. No. 1098, 92d Cong., 2d Sess at 4 (1972), reprinted in Legislative History at 154 (emphasis added). These views are seconded by Senator Percy: The second m ajor element of the bill is its provisions fo r opening up advisory committees to pub­ lic scrutiny During the extensive hearings . . we becam e convinced that there were too many in­ stances where advisory committees w ere consulting with Government offices on important policies and decisions w ithout an adequate guarantee that the public interest was being served Meetings are typically closed to the public Minutes and documents used in meetings are typically not available for public inspection. Rem arks o f Senator Percy, 118 Cong. Rec. 30,274 (1972), reprinted in Legislative History at 202 (endorsing S. 3529). 21 D ecisions under FOIA hold that exemption 5 applies when an agency document in the possession of an agency has been transmitted by a non-agency such as Congress, see infra note 29 O ur conclusion, however, applies only to documents that are neither prepared by an agency nor in an agency’s possession. 80 an agency. It defines the term agency to have the same meaning as used in FOIA, 5 U.S.C. app. I, § 3(3),22 whereas it defines “advisory committee” as “any com ­ mittee, board, commission, council, conference, panel, task force, or other sim­ ilar group, or any subcommittee or other subgroup thereof’ established by statute or reorganization plan or utilized by the President or one or more agencies “in the interest of obtaining advice or recommendations.” 5 U.S.C. app. I, § 3(2). More broadly, FACA is predicated on the assumption, emphasized several times in the statute, that advisory committees give advice and recommendations,23 whereas agencies are operating arms of government characterized by “substan­ tial independent authority in the exercise of specific functions,” Soucie v. David, 448 F.2d at 1073, or the “authority in law to make decisions.” Washington Re­ search Project, Inc. v. HEW, 504 F.2d 238,248 (D.C. Cir. 1974). Several courts,24 as well as this Office,25 have construed the statutory distinction to signify that advisory committees are not agencies 26 22 Pursuant to 5 U.S.C. § 551(1), the term “agency” is defined, subject to exceptions, as “each authority o f the Government of the United States, whether or not it is within or subject to review by another agency.” 23 FACA in several provisions underscores the self-evident function o f advisory committees to provide advice. See, e g , 5 U.S.C. app. I, § 2(6) (“the function o f advisory committees should be advisory only”); 5 U.S.C. app. 1, § 9(b) (“ Unless otherwise specifically provided by statute or Presidential directive, advisory committees shall be utilized solely for advisory functions.”). See also Legislative History at 197-98 (Among the enumerated purposes of S 3529 is “to assure that the functions o f Federal advisory committees shall be advisory only and that all mat­ ters under their consideration shall be determined solely by Federal officials and agencies ”). To the extent FACA recognizes that advisory committees in individual circumstances might exceed their advisory function, 5 U.S.C. app I, § 9(b), (c)(F), the general conclusion that advisory committees are not agencies or divisions of agencies would need to be evaluated based on the specific powers and activities o f the committee 24 See, e.g , Nader v. Dunlop, 370 F. Supp. 177, 178-79 (D.D.C. 1973) (exemption 5 does not exempt from pub­ lic access meetings o f advisory committees to the Cost o f Living Council); Gates v. Schlesinger, 366 F. Supp. 797, 798-800 (D D C. 1973) (same with respect to advisory committee to Department o f Defense) These two cases ap­ ply to meetings, 5 U.S C app. I, § 10(d), not documentary disclosure, 5 U.S.C. app. I, § 10(b), but because they preceded the 1976 amendment to FACA which eliminated the availability of exemption 5 for meetings, but not for documents, the reasoning is applicable to documentary materials under the statute as presently written 25 Memorandum for the Clemency Board, from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel (Sept 24, 1974) (explaining that if advisory committees were considered to be agencies, the full panoply of requirements mandated by the Administrative Procedure Act would apply to committee operations). 26 We are aware o f no language in FACA’s legislative history supporting the construction that advisory com ­ mittees are agencies. One possible exception is a remark by Congressman Thone in reference to a provision in the House bill regarding access to advisory committee documents filed with the Library of Congress* Subsection (b) provides that the Freedom o f Information Act is applicable to this section. This should remove any doubt as to whether advisory committees are subject to the Freedom of Information Act. Otherwise, 1 assume, it might be argued that advisory committees do not fall within the definition o f agency in section 551(1) o f the Freedom o f Information Act and are, therefore, not subject to the act. 118 Cong. Rec 16,298(1972). This isolated remark about a provision collateral to section 10 carries little weight, especially since it runs counter to the statute’s language and other legislative history See, e g , Ernst & Ernst v Hochfelder, 425 U S. 185, 203 n.24 (1976); NLRB v Fruit Packers, 377 U.S. 58, 66 (1964) Moreover, the substance of the remark is am ­ biguous. The congressman may have intended to say that advisory committees are agencies or, alternatively, that the Act expressly makes FOIA applicable to FACA, and therefore avoids any question whether FOIA is independently applicable to advisory committees as agencies. See, e g , Memorandum for the Clemency Board, from An­ tonin Scalia, Assistant Attorney General, Office o f Legal Counsel at 9 (Sept. 24, 1974) (“There are two routes by which the Freedom o f Information Act may be applied to the Board. One is through the Federal Advisory C om ­ mittee Act. A second possible route is through the Administrative Procedure Act, of which the Freedom of Infor­ mation Act is a part, if the [Clemency] Board is to be regarded as an agency, as that term is defined in the A dmin­ istrative Procedure Act.”) 81 For similar reasons, an advisory committee cannot be deemed a component within an agency whose deliberative documents are subject to exemption 5. The Act requires that all legislation authorizing an advisory committee “assure that the advice and recommendations of the advisory committee . . . not be inappro­ priately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment.” 5 U.S.C. app. I, § 5(b)(3). The emphasis on independence, and on judgment, highlights the separation of committees from agencies, as do the provisions for independent staffing, 5 U.S.C. app. I, § 5(b)(4), temporary duration, 5 U.S.C. app. I, § 14, the prohibition of committees composed wholly of full-time federal officials or em­ ployees, 5 U.S.C. app. I, § 3(2), and the requirement that “[n]o advisory com­ mittee shall meet or take any action until an advisory committee charter has been filed” with the appropriate authority, 5 U.S.C. app. I, § 9(c). As the district court in Gates, 366 F. Supp. at 799, observed: “[T]he exchange of information does not make an advisory committee ‘part of’ its government agency.” The committee is not an internal organ, but again by its very nature, is a group o f ‘outsiders’ called upon because of their expertise to offer views and comments unavailable within the agency.27 In short, given that an advisory committee is neither an agency itself nor a component of an agency, exemption 5 cannot gen­ erally apply to FACA advisory committees’ documents since by its terms it only protects “inter-agency and intra-agency memorandums.”28 On the other hand, by its express terms exemption 5 would apply to delibera­ tive documents prepared by an agency and delivered to the advisory committee.29 27 Moreover, the Senate report urges that advisory committees not be formed if the agency can accomplish the advisory work imemaUy Advisory committees are plainly meant to supplement agency resources, not duplicate them. A lthough the Act authorizes agency officials to call and adjourn meetings, 5 U.S.C. app. I, § 10(e) and (f), and broadly m onitor the operation of advisory committees established by an agency, 5 U.S.C. app. I, § 8, these pro­ visions implement the A ct’s designated purpose to rein in the operation of advisory committees, not place them within the jurisdictional confines of the agency or subject them to agency mandate on the substantive issue under review by the committee 28 W e recognize that under FOIA the courts have ruled on several occasions that materials supplied to an agency by outside experts and consultants, see, e g., H oover v United States D ep’t o f Interior, 611 F.2d 1132, 1138 (5th Cir. 1980) (report o f pnvate appraiser); Lead Industries A ss'n v. OSHA, 610 F.2d 70, 83 (2d Cir. 1979) (analyses o f scientific testimony prepared by consultants); or the courts, see Durns v Bureau o f Prisons, 804 F.2d 701 (D D.C. 1986) (presentence reports); or Congress, see, e.g., Ryan v Departm ent o f Justice, 617 F.2d 781,789-90 (D.C. Cir. 1980) (Senators’ responses to agency’s questionnaire intra-agency records), fall within exemption 5— thereby loosely construing the meaning o f “intra-agency.” This line o f cases, however, does not alter our conclusion that an advisory committee cannot invoke exemption 5 ’s inter-agency exemption to protect materials prepared by it and in its possession. These cases simply stand fo r the proposition that an agency may protect certain documents in its possession from disclosure. Accordingly, u n d er this line of cases, when an agency makes use of advisory materi­ als, such materials may indeed properly become deliberative documents to the agency. Section 10(b), however, im­ poses disclosure requirements on the advisory committee itself. 29 This is consistent with the holding in Aviation Consumer Action Project v Washburn, 535 F.2d 101, 107-08 (D.C. Cir. 1976) that agencies may disclose predecisional documents to advisory committees without waiving their ability to protect the records under exemption 5, at least where such disclosures further the “free and candid ex­ change o f ideas during the process of decision-making.” It is also consistent with FOIA caselaw holding that the delivery o f internal documents to Congress does not necessarily vitiate exemption 5 protection. See, e g , Leteher v United States Dept, o f Justice, 3 GDS 82,257, 82,714 (D.D.C. 1982) ("documents reflecting consultations be­ tween CIA and Congress are protected by exem ption 5 since such consultations are an integral part o f the deliber­ ative process and to discuss this process in public view would inhibit frank discussions”); Allen v Department o f D efense, 580 F. Supp 74, 83 (D D.C. 1983) (“exemption 5 may, in an appropriate case, be applied to agency-con­ gressional communications”). 82 Accordingly, our construction still gives vitality to exemption 5 in the context of section 10(b) disclosure requirements. Under this construction, documents trans­ mitted to an advisory committee by an agency do not lose the protection of an agency’s deliberative process exemption under FOIA. Conclusion For the foregoing reasons, exemption 5 properly applies under FACA when the agency has transmitted to an advisory committee a document that would be protected from disclosure if in the possession of the agency. Under the detailed enumeration of covered materials in section 10 of FACA, however, the advisory committees must, as a general matter, disclose the materials “made available to” the committee, “prepared by” the committee or “prepared for” the committee, so long as the committee is utilized or established by the President, an agency, or statute or reorganization plan, and then only “until the advisory committee ceases to exist.” 5 U.S.C. app. I, § 10(b). John O. M c G in n is Deputy Assistant Attorney General Office of Legal Counsel 83

Write a legal research memo on the following topic.

Application of 18 U.S.C. § 209 to Employee-Inventors Who Receive Outside Royalty Payments A federal g o v ern m en t em ployee w ho obtains p aten t rights to an invention m ade in the course o f federal em p lo y m en t ordinarily does not violate 18 U S.C. § 2 0 9 by licensing the patent rights to a private entity and receiving royalty payments in exchange September 7, 2000 M em o ran d u m O f f ic e of O p in io n fo r t h e D ir e c t o r G o v e r n m e n t E t h ic s Y o u have asked for our opinion whether a federal government employee who obtains patent rights to an invention made in the course of federal employment violates 18 U.S.C. §209 by licensing the patent rights to a private entity and receiving royalty payments in exchange. See Letter for Randolph D. Moss, Acting Assistant Attorney General, Office o f Legal Counsel, from Stephen D. Potts, Director, Office of Government Ethics (Oct. 19, 1999) (“ Potts letter” ). We con­ clude that § 209 ordinarily does not ban outside royalty payments to employeeinventors. I. Section 209(a) states: Whoever receives any salary, or any contribution to or supplementation of salary, as compensation for his services as an officer or employee of the executive branch of the United States Government, of any independent agency of the United States, or of the District of Columbia, from any source other than the Govern­ ment of the United States, except as may be contributed out of the treasury of any State, county, or municipality; or Whoever, whether an individual, partnership, association, cor­ poration, or other organization pays, or makes any contribution to, or in any way supplements the salary of, any such officer or employee under circumstances which would make its receipt a vio­ lation of this subsection shall be subject to the penalties set forth in section 216 o f this title. 18 U.S.C. § 209(a) (1994). This provision, as the Court of Appeals for the Ninth Circuit has explained, bars “ (1) an officer or employee of the executive branch or an independent agency of the United States government from (2) receiving 170 Application o f 18 U.S.C. §209 to Employee-lnventors Who Receive Outside Royalty Payments salary or any contribution to or supplementation of salary from (3) any source other than the United States (4) as compensation for services as an employee of the United States.” United States v. Raborn, 575 F.2d 688, 691-92 (9th Cir. 1978). You have asked us to focus on the third and fourth elements, see Potts letter at 2, and we accordingly assume that the first two elements — that an employee-inventor is an “ officer or employee of the executive branch” or an “ independent agency,” and that royalty payments constitute a “ contribution to or supplementation of salary” — would be established here. The government has the right to obtain the “ entire right, title and interest in and to all inventions made by any Government employee (1) during working hours, or (2) with a contribution by the Government of facilities, equipment, mate­ rials, funds, or information, or of time or services of other Government employees on official duty, or (3) which bear a direct relation to or are made in consequence of the official duties of the inventor.” Exec. Order No. 10096, 3 C.F.R. 292 (1949-1953 comp.). If an agency determines that the government’s contribution to the employee’s invention is “ insufficient equitably to justify” the government’s obtaining all rights to the invention, or that the agency has “ insufficient interest” in the invention, it “ shall leave title to such invention in the employee,” subject to an irrevocable, nonexclusive license to the government. Id. We understand that employee-inventors who are allowed to retain patent rights in their inventions often enter into licensing agreements with private entities, under which they receive royalty payments. See Potts letter at 1. In some instances, an employeeinventor may continue to develop the invention as part of his or her job respon­ sibilities and may participate in a cooperative research and development agreement (“ CRADA” ) between the agency and a private entity. See id. II. You have suggested that the third element of a § 209 violation — receipt of pay­ m en t/raw a source other than the United States — might not be satisified here because the government could be deemed the source of outside royalty payments to employee-inventors. See Potts letter at 2-3; see also 18 U.S.C. § 209(a) (forbid­ ding salary supplementation “ from any source other than the Government of the United States” ). We do not believe that this argument can be sustained. The closest analogue appears to be set out in an opinion of our Office from 1993. There, we considered the government’s practice, under the Federal Tech­ nology Transfer Act (“ FTTA” ), 15 U.S.C. §§3701-3717 (1994 & Supp. IV 1998), of sharing with an employee-inventor the royalties that the government received from licensing the employee’s invention. These payments to the employee, we concluded, did not place the employee in the position of violating 18 U.S.C. §208, which generally forbids an employee from working on a par­ 171 Opinions o f the Office o f Legal Counsel in Volume 24 ticular matter in which he or she has a financial interest.1 See Ethics Issues Related to the F ederal Technology Transfer A ct o f 1986, 17 Op. O.L.C. 47, 50 (1993). The F IT A, as then written, required government agencies to “ pay at least 15 percent of the royalties or other income the agency receives on account of any invention to the inventor . . . if the inventor . . . assigned his or her rights in the invention to the United States.” 15 U.S.C. § 3710c(a)(l)(A)(i) (1994). Because the government paid the royalties at issue, we determined that they did not con­ stitute an outside financial interest implicating §208. See 17 Op. O.L.C. at 505 1.2 Although the opinion primarily dealt with §208, we also concluded, on the same reasoning, that employees receiving such payments would not violate § 209(a). See id. at 51. Here, although private entities pay the royalties, employee-inventors acquire patent rights only because the government has decided not to exercise its right to obtain title. See Potts letter at 3. We agree, therefore, that the royalties come from the government in an indirect sense. Nonetheless, the royalties at issue in our 1993 opinion came directly from the government and indirectly from a private source; here the converse is true. See 17 Op. O.L.C. at 51 (“ Since an employee receives section 7 payments from the federal agency holding the rights to the invention, the payments are not subject to §209(a)’s prohibition.” ). Rather than incidentally benefitting by receiving a portion of the royalties from an agreement between the government and a private entity, employee-inventors in the present case are themselves entering into licensing agreements to which the government is not a party. The payments here are thus critically different from those addressed in our 1993 opinion. Here, the indirect connection between the government and the royalty payments cannot negate their direct connection to a nongovernmental source. Accordingly, we conclude that the third element of §209 could be met, and we turn to the fourth element. 1Section 208(a) states. Except as permitted by subsection (b) hereof, whoever, being an officer or employee o f the executive branch o f the United States Government, o r o f any independent agency of the United States, a Federal Reserve bank director, officer, or employee, o r an officer or employee of the District of Columbia, including a special G overnment employee, participates personally and substantially as a Government officer or employee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherw ise, in a judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter in which, to his knowledge, he, his spouse, minor child, general partner, organization in which he is serving as officer, director, trustee, general partner or employee, or any person o r organization with whom he is negotiating or has any arrange­ ment concerning prospective employment, has a financial interest [s]hall be subject to [specified] penalties 18 U S C § 208(a) (1994) 2 W e reasoned that such payments would becom e part o f the inventor’s federal employment contract, would nec­ essarily be known to the government, and therefore would not implicate the central concerns of §208. See id. 172 Application o f 18 U.S.C. § 209 to Employee-inventors Who Receive Outside Royalty Payments III. You have expressed the concern that outside royalty payments might be viewed as compensation “ for the employee’s past or present services to the Government in developing the invention.” Potts letter at 6. We recognize that the statute might be given that interpretation. Nonetheless, we believe that, on the better view, the payments would not meet this element of the statute. In a 1997 opinion, we interpreted §209 to require an “ intentional, direct link” between the outside compensation and the employee’s government service. Applicability o f 18 U.S.C. § 2 0 9 to Acceptance by FBI Employees o f Benefits Under the “ Make a Dream Come True” Program, 21 Op. O.L.C. 204, 206 (1997). We did not read §209 to prohibit “ all non-government payments to an individual where there is any nexus between the payment and the individual’s employment by the government.” Id. at 209. We largely relied on an amendment of the provision in 1962, by which Congress deleted the phrase “ in connection with” from the earlier version and substituted the “ as compensation for” lan­ guage. Congress made this change because the former phrase was thought ambig­ uous and “ capable of an infinitely broad interpretation.” Id. at 206 (citing H.R. Rep. No. 87-748, at 13, 25 (1961)). “ The amendment was designed to clarify that there must be a direct link between the contribution to or supplementation of salary and the employee’s services to the government.” Id. (emphasis added). No intentional, direct link between an employee-inventor’s government services and the licensing of patent rights would typically exist here. Our 1997 opinion identified several factors that should be taken into consideration when construing the ‘ ‘as compensation for’ ’ requirement of § 209, where the existence of an inten­ tional, direct link is unclear. Those factors include: (1) whether there is a substantial relationship or pattern of dealings between the agency and the payor; (2) whether the employee is in a position to influence the government on behalf of the payor; (3) whether the expressed intent of the payor is to compensate for government service; (4) whether circumstances indicate that the payment was motivated by a desire other than to compensate the employee for her government service . . .; (5) whether payments would also be made to non-government employees; and (6) whether payments would be distributed on a basis unrelated to government service. Id. Three of these factors support the conclusion that outside royalty payments gen­ erally are not intended to be compensation for government services. It is unlikely that a payor would expressly indicate an intent “ to compensate for government service.” Id. (third factor). To the contrary, the circumstances typically would 173 Opinions o f the Office o f Legal Counsel in Volume 24 indicate that the payor “ was motivated by a desire other than to compensate the employee for her government service” Id. (fourth factor) — the desire to obtain property rights to an invention that it views as valuable. This value would not normally come from the fact that the employee-inventor developed his or her invention while working as a government employee. Presumably, a payor would be just as interested in acquiring rights to such an invention if the inventor were not a federal employee. Moreover, the payments “ would be distributed on a basis unrelated to government service.” Id. (sixth factor). They would not be calibrated to reflect the amount of government time the employee devoted to developing the invention but only to the value o f the invention. In sum, these factors point to the conclusion that payors would not be compensating employee-inventors for government service, but instead would be motivated by the economic advantages of securing property rights to a potentially valuable invention. “ This Department has consistently construed § 209(a) and its predecessor, 18 U.S.C. § 1914, to forbid only payments intended to serve as additional compensation to an individual for undertaking or performing government service.” See Gifts Received on Official Travel, 8 Op. O.L.C. 143, 144 (1984) (citing 41 Op. Att’y Gen. 217, 221 (1955); 39 Op. Att’y Gen. 501, 503 (1940)) (emphasis added) (internal quotation marks omitted). One other factor— “ whether payments would also be made to non-government employees” — at the least would not point to the contrary conclusion. We have not been apprised of any situation in which a particular licensee has entered into licensing agreements only with government-employed inventors, or in which, in instances where patent rights are held jointly by a federal employee and another inventor who is not employed by the federal government, a licensee has paid a disproportionately large share of the royalties to the federal employee. The two remaining factors set forth in our 1997 opinion— “ whether there is a substantial relationship or pattern o f dealings between the agency and the payor” and “ whether the employee is in a position to influence the government on behalf of the payor,” 21 Op. O.L.C. at 206 — may be applicable to some, though not all, licensing arrangements between a private entity and a government employee. Even in those circumstances in which these factors are present, however, we believe the independent prohibition in 18 U.S.C. §208 should ensure that royalty payments are not made “ as compensation for” the employee-inventor’s govern­ ment services. These two factors follow from the Supreme Court’s explication of § 209 in Crandon v. United States, 494 U.S. 152, 158 (1990). The Crandon Court observed that § 209 was intended to prevent an outside payor from having a “ hold on the employee deriving from his ability to cut off one of the employee’s economic lifelines,” and to address the tendency of an employee “ to favor his outside payor even though no direct pressure is put on him to do so.” Id. at 174 Application o f 18 U.S.C. §209 to Employee-inventors Who Receive Outside Royalty Payments 165 (quoting Association of the Bar of the City of New York, Conflict o f Interest and Federal Service 211 (I960)) (internal quotation marks omitted).3 Where a private entity purchases the right to use a government employee’s valu­ able patent rights and the employee does no further work relating to the patent, neither the “ substantial relationship” nor the “ position to influence” factors should typically apply. In such situations, therefore, royalty payments would not, absent unusual circumstances, constitute “ compensation for” government serv­ ices. According to your letter, however, in some cases, “ employee[-inventor]s may continue to work, as part of their official duties, on certain aspects of the product or process for which they have been permitted to obtain certain patent rights. This additional work may include, among other things, technical improve­ ments to the invention or research on new uses for the invention.” Potts letter at 1; see also 17 Op. O.L.C. at 47 (discussing this practice). When the government and the payor are collaborating through a CRADA, there would likely be a “ substantial relationship or pattern of dealings between the agency and the payor.” 21 Op. O.L.C. at 206. Even when there is no CRADA, concerns may be raised if in developing or refining the invention the employee-inventor “ is in a position to influence the government on behalf of the payor.” Id. Nevertheless, in the context of employee-inventors who receive outside royalty payments, these concerns are largely eliminated by the independent prohibition of §208. C f Crandon, 494 U.S. at 166 (noting that “ the [§209] concern that the employee might tend to favor his former employer” can be addressed by “ other rules [that] disqualify the employee from participating in any matter involving a former employer” ). Section 208 requires employee-inventors to recuse themselves from agency actions when they have a financial interest in a particular matter. Section 208 thus bars employee-inventors who receive outside royalty pay­ ments from continuing to participate in research concerning their inventions, including CRADAs. See 17 Op. O.L.C. at 53. This prohibition on participation in matters in which employee-inventors have financial interests prevents them from being “ in a position to influence the government on behalf of the payor,” even if “ there is a substantial relationship or pattern of dealings between the agency and the payor.” 21 Op. O.L.C. at 206.4] To be sure, §208 may be waived “ upon a written determination that the dis­ qualifying interest of the employee is ‘not so substantial as to be deemed likely to affect the integrity of the services which the government may expect’ from the employee.” See W aiver o f the Application o f Conflict o f Interest Laws fo r 3 The Court noted that §209 is also aimed at preventing the “ suspicion and bitterness among fellow employees and other observers” that can occur when employees are receiving compensation from outside sources Id. 4 We do not address whether there could be facts under which an employee-inventor would have a financial interest under §208 before licensing an invention However, although our 1993 opinion did not reach this issue, it noted that after the government decides not to take up foreign patent nghts (but before the em ployee-inventor licenses those nghts), the employee-inventor’s possession o f foreign patent nghts “ consitute[sJ an integral part o f the FTTA incentive program created by Congress” and “ that §208 can and should be interpreted as consistent with the provi­ sions o f the FTTA.” 17 Op O L C . at 50, 53 175 Opinions o f the Office o f Legal Counsel in Volume 24 M em bers o f the P residen t’s Commission on Strategic Forces, 1 Op. O.L.C. 10, 12-13 (1983) (quoting 18 U.S.C. § 208(b)). Nevertheless, although that determina­ tion is left to the discretion of the official who appointed the employee, “ [i]t is the responsibility of that official to exercise his considerable discretion soundly and in good faith, after a careful and thorough consideration of all of the pertinent facts.” Id. at 14-15. In these circumstances, possible concerns about the divided loyalty of an employee are adequately addressed under § 208, including the stand­ ards for waivers. See 5 C.F.R. § 2640.301 (2000). In view of § 208, a broad interpretation of § 209 would not advance any statutory purpose. Cf. Beth Nolan, Public Interest, Private Income: Conflicts and Control Limits on the Outside Income of Government Officials, 87 NW. U. L. Rev. 57, 80 (1992) ( “ The law prohibits not private gain per se, but rather prohibits private gain that impairs the integrity of services provided to the government, that creates the appearance of misuse of government office, or that requires others to pay to receive access to or services from the government.” ). Indeed, a ban on employee-inventors’ receiving any royalties from their inventions might well run counter to congressional intent. As the Crandon Court recognized, § 209 was not intended to “ impair the ability of the Government to recruit personnel of the highest quality and capacity.” 494 U.S. at 166 (quoting Message from the Presi­ dent o f the United States Relative to Ethical Conduct in the Government, H.R. Doc. No. 145, 87th Cong., 1st Sess. 2 (1961)). We understand that a ban on outside royalties could impede, perhaps severely, the government’s ability to attract and retain talented employees in the relevant labor markets because it would increase the already considerable income gap between private and public sector employment. See Potts letter at 12 (“ The application of section 209 to this situation would mean that employee-inventors would have to leave Govern­ ment if they wanted to commercialize patents obtained under section 8” of the FTTA.); c f Crandon, 494 U.S. at 167 n.22 ( “ The reach of [§209’s predecessor] had long been recognized as a serious obstacle to recruitment of men for govern­ ment office . . . .” ). An overly broad interpretation o f §209 would also frustrate the purposes of the FTTA. Congress passed the FTTA to increase use of federally-developed tech­ nology by the private sector in order “ to improve the economic, environmental, and social well-being of the United States.” 15 U.S.C. §3702. Congress expected employee-inventors to obtain and exploit patent rights to their inventions when the government opted not to retain its rights. See S. Rep. No. 99-283, at 14 (1986), reprinted in 1986 U.S.C.C.A.N. 3442, 3456. As we observed in our opinion inter­ preting §208 and the FTTA, “ [i]t is well settled that statutes must be construed as consistent if possible.” 17 Op. O.L.C. at 50 (citing Watt v. Alaska, 451 U.S. 259, 266-67 (1981) and Patterson v. McLean C redit Union, 491 U.S. 164, 181 (1989)). “ [A] specific policy embodied in a later federal statute should control our construction o f the [earlier] statute, even though it ha[s] not been expressly 176 Application o f 18 U.S C. §209 to Employee-inventors Who Receive Outside Royalty Payments amended.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143 (2000) (quoting United States v. Estate o f Romani, 523 U.S. 517, 530-31 (1998)); see also Patterson, 491 U.S. at 181 (stating that courts should hesitate to “ read an earlier statute broadly where the result is to circumvent” a later-enacted statu­ tory scheme). If § 209 were interpreted to prohibit employee-inventors from licensing their inventions to private entities, the exploitation of those inventions would languish because employees would have little incentive to “ move the[ir] invention[s] into the private sector.” S. Rep. No. 99-283, at 14, reprinted in 1986 U.S.C.C.A.N. at 3456. Such a construction would hinder one of the FTTA’s pur­ poses.5 Finally, to the extent that the “ as compensation for services” language of §209 is ambiguous, it should be interpreted in light of the rule of lenity. See Crandon, 494 U.S. at 182-83 (Scalia, J., concurring in the judgment) (referring to that lan­ guage as a “ troublesome phrase” devoid of a “ clear and constant meaning” ); id. at 178 (describing administrative interpretations of the phrase as “ unpredict­ able” ); see also Nolan, supra, at 102 (describing §209’s meaning as “ uncertain” and noting that “ interpretations of section 209 and its predecessors have some­ times been tortured” ). Interpreting different language in §209, the Crandon Court looked to this “ time-honored interpretive guideline” that ambiguities in criminal statutes should be construed narrowly because of the due process requirement of “ fair warning of the boundaries of criminal conduct.” Crandon, 494 U.S. at 158 (quoting Liparota v. United States, 471 U.S. 419, 427 (1985)). In general, “ [cjriminal statutes should be given the meaning their language most obviously invites. Their scope should not be extended to conduct not clearly within their terms.” United States v. Williams, 341 U.S. 70, 82 (1951) (plurality opinion). Conclusion We therefore conclude that, in the usual case, § 209 does not bar employeeinventors from receiving outside royalties. As you observe in your letter, ‘‘in any section 209 analysis, the facts of individual cases would have to be examined.” Potts letter at 11 n.7. In the typical case, however, we do not think that outside royalties would be paid “ as compensation for [the employee-inventor’s] services as an officer or employee of the executive branch.” 18 U.S.C. § 209(a). RANDOLPH D. MOSS Assistant Attorney General Office o f Legal Counsel 5 As you note, the legislative history o f ihe FTTA indicates that Congress intended to “ make no changes in the conflict o f interest laws affecting Federal employees or former Federal employees ” Potts letter at 5 (quoting S Rep. No 99-283, at 10, reprinted in 1986 U S C.C A N at 3451) As discussed above, however, we believe that §209 is best read as ordinarily not bam ng outside royalty payments. On this view, it was not necessary for Congress to amend that section when it enactcd the FTTA. 177

Write a legal research memo on the following topic.

Ethics Issues Related to the Federal Technology Transfer Act of 1986 A g o v ern m en t em p lo y ee-inventor who assigns his rights in an invention to the U nited States and ac­ cepts the g o v ern m en t’s paym ent of am ounts tied to the resulting royalties, as provided in the F ed­ eral T echnology T ransfer Act of 1986, m ay continue to w ork on the invention w ithout violating the statu te ag ain st taking part in matters in w hich he has a financial interest, 18 U .S.C. § 208, or the statu te forbidding supplem entation of federal salaries, 18 U.S.C. § 209 U nder 18 U .S.C § 208, a governm ent em ployee-inventor m ay not take official action with respect to an agreem ent for developm ent of his invention entered into by the U nited States and a com pany w ith w h ich the em p lo yee has contracted to exploit the invention abroad. Septem ber 13, 1993 M em orandum O ffice of O p in io n fo r t h e D ir e c t o r G o v e r n m e n t E t h ic s Y ou have asked us to advise w hether we agree with a Septem ber 27, 1988, letter from the Office o f Government Ethics (“OGE”) to the Departm ent of Commerce (“ 1988 O G E letter”) and to review a draft O G E letter to the Special Counsel for Ethics at the D epartm ent of Health and Human Services (“draft OGE letter”). Both letters address issues involving the relationship between federal conflict-ofinterest laws and the Federal Technology Transfer A ct of 1986 (“FTTA”), as amended, 15 U.S.C. §§ 3701-3717. W e believe that the 1988 OGE letter was cor­ rect in concluding that payments to a government employee under FTTA section 7 do not violate 18 U.S.C. § 208 or 18 U.S.C. § 209(a). W e also agree with the con­ clusion o f the draft O G E letter that, on the specific facts stated there, § 208 bars an employee from w orking in his official capacity on an invention for which the em ­ ployee holds a foreign patent, and for which the employee has contracted for for­ eign com m ercialization with the sam e company that is under contract with the federal governm ent to develop the invention. I. C ongress enacted the FTTA in 1986 as part o f a continuing effort to encourage technology transfers from federal research laboratories to private industry. The FTTA am ended the Stevenson-W ydler Technology Innovation Act o f 1980, Pub. L. No. 96-480, 94 Stat. 2311, which created incentives for federal agencies and employees to w ork with private industry in com m ercializing new technologies de­ veloped in federal laboratories.1 T o this end, section 7 o f the FTTA requires a 1 See, e.g., 132 Cong. Rec. 20,388 (1986) (statement of Sen. Gorton) (“The FTTA is designed to improve the transfer o f technology out of the Federal laboratories and into the marketplace. . . . It improves the 46 Ethics Issues R elated to the FTTA o f 1986 government agency to “pay at least 15 percent of the royalties or other income the agency receives on account of any invention to the inventor . . . if the inventor .. . assigned his or her rights in the invention to the United States.” 15 U.S.C. § 3710c(a)(l)(A )(i). Once section 7 payments are made to an employee-inventor, the individual generally will continue to work on the development and im prove­ ment of the invention, including its commercialization as part of federal research and development efforts. These efforts may include a cooperative research and development agreement (“CRADA”). CRADAs are cooperative agreements with universities or other entities in the private sector and are aimed at refining an in­ vention and transferring it to the marketplace. They are specifically authorized under section 2 of the FTTA.2 At the same time, federal ethics laws generally prohibit government em ployees from personally participating in matters where they have a “financial interest.” Under 18 U.S.C. § 208: Except as permitted by subsection (b) hereof [concerning waivers and other exclusions], whoever, being an officer or employee of the executive branch o f the United States Government . . . participates personally and substantially as a Government officer or employee, through decision, approval, disapproval, recommendation, the ren­ dering o f advice, investigation, or otherwise, in a judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter in which, to his knowledge, he . . . has a financial interest — Shall be subject to the penalties set forth in section 216 o f this title. 18 U.S.C. § 208(a).3 If amounts paid to government employees under FTTA sec­ tion 7 constitute a “financial interest” in the invention, then the employee-inventor probably would be forbidden to continue working on the project while receiving section 7 payments. incentives for Federal scientists to put in the time and effort to explore the commercial possibilities o f their inventions by requiring agencies to share **t least 15 percent of the royalties received from patents with the inventor.’’) ‘ Section 2 provides in relevant part: Each Federal agency may permit the director of any of its Government-operated Federal laborato­ ries, and, to the extent provided in an agency-approved joint work statement, the director of any of its Govemment-owned, contractor-operated laboratories — (1) to enter into cooperative research and development agreements on behalf of such agency . and (2) to negotiate licensing agreements . . for inventions made or other intellectual property developed at the laboratory and other inventions or other intellectual property that may be vol­ untarily assigned to the Government 15 U.S.C § 3710a(a). * Section 216 provides both civil and criminal penalties for violations of § 208. 18 U S C. § 216 47 O pinions o f th e O ffice o f L egal Counsel In- 1988, OGE resolved this apparent conflict by concluding that amounts paid to federal em ployees under section 7 constitute compensation from the government and that such com pensation does not constitute “a financial interest” under § 208. While the 1988 opinion was not reviewed by this Office at that time, it is consistent with views we expressed in an earlier opinion. In 1980, this Office concluded that § 208(a) does not cover a situation “in which the" only financial interest in the [particular matter] is that which federal employees have in their government posi­ tion and salary, as to which no outside financial interest is im plicated.” See M emo­ randum for Thom as M artin, Deputy Assistant Attorney General, Civil Division, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: 18 U.S.C. § 208 a n d Pending Salary Adjustm ent Litigation at 3 (Jan. 24, 1980) (“ 1 9 8 0 O pinion”) 4 The question whether the term “ financial interest” as used in § 208 covers com­ pensation received by a government employee in connection with his government em ploym ent has never been conclusively settled.5 As in any task of statutory con­ struction, we begin with the text, see, e.g., United States v. Turkette, 452 U.S. 576, 580 (1981) (“In determ ining the scope o f a statute, we look first to its language.”), and are bound by the “fundamental canon” 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). Section 208 does not define the term “financial interest.” It could b e interpreted to refer to any number of potential monetary or other personal interests of a covered person, including an individual’s federal com pensation. 4 In 1985 and again in 1987, we admittedly questioned the correctness of the 1980 Opinion in light of the “‘plain language” of § 208(a) See Memorandum for Richard K. Willard, Assistant Attorney General, Civil Division, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, Re 18 U.S.C § 2 0 8 a nd Participation o f Departmental A ttorneys in Debt Ceiling Litigation at 2 n 1 (Dec. 6, 1985); Memorandum for the Solicitor of the Intenor, from Samuel A. Alito, i r , Deputy Assistant Attorney General, Office of Legal Counsel, Re Scope of the Term “Particular Matter ” Under 18 U.S.C 208 at 9 n 13 (Jan. 12, 1987) Notwithstanding those opinions, w e adhere to our 1980 Opinion. 5 The only case arguably on point is U nited States v. Lund, 853 F.2d 242 (4th Cir. 1988) In that case, the court applied § 208 to interests arising from a federal em ployee’s government salary. The facts of that case, however, are unique. The defendant w as a federal manager who married a subordinate and kept their m am age secret. The defendant continued to supervise his wife and, over time, granted her higher pay, pro­ moted her over another applicant, and recommended her for a government-funded graduate school program This conduct was found to violate § 208. The specific issue before the Court, however, was whether § 208(a) was “applicable to conflicts of interest in intra-agency personnel matters." Id. at 243. Based upon the statute’s plain language, the Court concluded that § 208(a) was applicable to such conflicts, rejecting the argument that the statute’s “reach is limited to conflicts of interest in matters involving outside suppliers of goods and services to the government.” Id. at 244. The implication of the Lund court’s decision was that a federal em ployee’s spouse’s employment contract represented a § 208 “financial interest,” even if that contract was with the federal government. The Court did not, however, directly address the issue whether the covered employee’s own federal employment con­ tract could constitute a “financial interest” giving rise to a prohibited conflict. Moreover, it is significant that the arrangement was kept secret As will be discussed infra, Congress appears to have been principally concerned with financial interests that would not be known to the agency involved In any case, it is unclear whether Lund could be extended beyond its very peculiar facts. 48 Ethics Issues R elated to the FTTA o f 1986 It is also true, however, that in “ascertaining the plain meaning of [a] statute, the court must look to . . . the language and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988).6 In this regard, the provisions of § 208(b) may illuminate the meaning of subsection (a). Section 208(b) provides that: Subsection (a) hereof shall not apply (1) if the officer or employee first advises the Government official responsible for appointment to his position o f the nature and circumstances o f the judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter and makes full disclosure of the financial interest and receives in advance a written determination made by such offi­ cial that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the Government may ex­ pect from such officer or employee. 18 U.S.C. § 208(b). The creation o f a procedure whereby employees may obtain exceptions from the prohibitions o f subsection (a) upon disclosure of their financial interest indicates that Congress was not referring to “financial interests” that need no disclosure, such as the compensation a federal employee receives from the government. This rationale led to our original determination that the compensation received by fed­ eral employees was not a “financial interest” within the meaning of § 208(a). As noted in the 1980 Opinion, the full disclosure requirements of § 208(b) “suggest that the interest of concern is one that, without such disclosure, would not be ordi­ narily known to the appointing official. Otherwise, there would appear to be no logical or practical reason for requiring ‘full disclosure’ by the federal em ployee.” 1980 Opinion at 2. This interpretation of § 208 is supported by its legislative history. Section 208 was enacted in its present form in 1962.- Before its enactment, 18 U.S.C. §434 forbade federal employees from acting for the United States in the transaction of business with any business entity in which they were “directly or indirectly interested in the pecuniary profits or contracts.” 18 U.S.C. § 434 (1958). In 1962 § 434 was replaced by § 208, which was intended to broaden the scope of its pro­ hibitions — in particular to cover financial interests held by the spouse, children and partners of covered persons. However, as noted in our 1980 Opinion, it is doubtful that Congress meant to “sweep within § 208’s ambit every conceivable financial interest o f whatever type.” 1980 Opinion at 3. For example, the Senate Report on the bill that became § 208 explained that: 6 See also Richards v United Stales, 369 U S. I (1962), Federal Power Comm'it v Panhandle Eastern Pipe Line Co , 337 U S 498 (1949) 49 O pinions o f th e O ffice o f Legal C ounsel The disqualification of the subsection embraces any participation on behalf o f the Government in a matter in which the employee has an outside fin a n cia l interest, even though his participation does not in­ volve the transaction of business. Id. (citing S. Rep. No. 87-2213, at 13 (1962)) (emphasis added). Thus, § 208 was enacted to extend the reach of federal conflict-of-interest prohibitions to cover the “outside” financial interests of a covered employee — those interests outside of the individual’s federal employment contract that would not necessarily be evident to the em ployee’s superiors. Examples would include personal investments or the financial interests o f an em ployee’s family or business partners. There is little evi­ dence that Congress m eant also to encom pass the em ployee’s interest in his own federal com pensation. Indeed, if “financial interest” is interpreted to include compensation received from the federal governm ent, the section could lead to absurd results. If an em­ ployee’s federal salary w ere characterized as a “financial interest” under § 208(a), any action taken with the intent to increase that salary — enthusiastically and con­ scientiously perform ing his or her duties in the hope of promotion for example — might be forbidden by that section. O r an em ployee who must decide claims brought against the United States — a Social Security hearing officer for example — m ight well violate § 208 whenever he or she decides in favor o f the federal gov­ ernm ent. An em ployee might be said to have a conflicting “financial interest” in protecting the federal treasury, from which his or her own livelihood is drawn, and § 208(a) expressly reaches the financial interests of the government em ployee’s employer. There appears to be no principled distinction that would exclude such actions or determ inations made by an officer or employee from § 208’s reach, if federal com pensation is considered a “financial interest.” Such an interpretation of the statute would subject federal em ployees to possible prosecution under § 208 for the vigilant perform ance o f their duties. In addition, we note that Congress enacted the FTTA against the background of the conflict-of-interest laws, including § 208. It is well settled that statutes must be construed as consistent if possible, and that an earlier statute should not be read broadly when the result would be to circum vent a later enactment. See Watt v. Alaska, 451 U.S. 259, 266-67 (1981); Patterson v. McLean Credit Union, 491 U.S. 164, 181 (1989). In this connection, we note that the Supreme Court has de­ clined to interpret federal conflict-of-interest laws broadly when the effect would be to forbid activity specifically authorized by Congress in a later enactment. See U nited States v. Chemical Found., Inc., 272 U.S. 1, 17-19 (1926) (predecessor statute o f § 208 does not cover transactions authorized under later measure passed to deal with wartim e conditions).7 W e believe that § 208 can and should be inter­ preted as consistent with the provisions of the FTTA. 50 Ethics Issues R elated to the FTTA o f 1986 Payments made to employees under FTTA section 7 are federal compensation, indistinguishable for these purposes from salary, benefits, and other paym ents such as performance awards. The 1988 OGE letter concluded that royalty payments made under section 7 should be viewed as “additional compensation for Federal service,” noting that the United States retains ownership rights in the invention under FTTA section 7 and that the inventor receives his or her share in the royalty payments from the United States, not directly from the outside licensee. This con­ clusion finds additional support in section 7, which provides that em ployees can receive payments in excess o f $100,000 under this program only with the approval of the President under the provisions regarding presidential cash awards — 5 U.S.C. § 4504. 15 U.S.C. § 3710c(a)(3). Therefore, we conclude that compensation received by an employee under FTTA section 7 does not constitute a “financial interest” under § 208. Such em­ ployees may receive payments under section 7 and continue to work on the devel­ opment and commercialization of their inventions.8 II. In addition, we agree with the 1988 OGE letter’s conclusion that FTTA section 7 payments are not prohibited supplementations of salary under 18 U.S.C. § 209(a). Section 209(a) prohibits federal employees from receiving any supple­ mentation of salary in consideration of the performance of their official duties “from any source other than the Government o f the United States.” Since an em­ ployee receives section 7 payments from the federal agency holding the rights to the invention, the payments are not subject to § 209(a)’s prohibition. III. The draft OGE letter concerns section 8 of the FTTA. Under that section, when an agency having the right to ownership of an invention 7 See also Bustc v United States, 446 U.S 398, 406 (1980) (more specific statute given precedence over more general one, regardless of sequence of enactment). We acknowledge that the Senate report on the FTTA stated that the provisions of the bill “ma[d]e no changes in the conflict of interest laws affecting Federal employees or former Federal employees ” S Rep No. 99-283, at 10 (1986) This statement, however, could indicale that the Congress that passed the FTTA may well have believed that § 208 did not reach any forms of compensation by the government 8 Given this conclusion, it follows that an employee entitled, or potentially entitled, to payments under section 7 also may work on an invention pursuant to a CRADA, without violating § 208 It would be entirely arbitrary to conclude that an employee could work on an invention potentially leading to such payments before, but not after, a CRADA is signed by the federal laboratory that employs him. He would have the same interest m the potential payments, and the substance of his research would likely be the same, both before and after his laboratory entered into the CRADA. Furthermore, the FTTA expressly contemplates that employees, in at least some circumstances, will continue to work on their inventions under CRADAs. • 15 U.S C. § 3710a(b)(5) Application of § 208 would mean that, absent a waiver, employees could never do such work under CRADAs, because successful work would enable the employees to receive larger payments under section 7. There is no indication that Congress intended such a result 51 Opinions o f th e O ffice o f L eg a l C ounsel does not intend to file for a patent application or otherwise to pro­ mote com m ercialization of such invention, the agency shall allow the inventor, if the inventor is a G overnm ent employee or former em ployee who m ade the invention during the course of employment with the G overnm ent, to retain title to the invention [subject to res­ ervation o f a nonexclusive, license for the Government], 15 U.S.C. § 3710d(a). Under this provision and implementing regulations, an agency may determ ine to prosecute a patent application in the United States, but not abroad, leaving foreign rights to the em ployee-inventor. 37 C.F.R. § 101.8 (1993). The draft O G E letter addresses a case in which the federal government, while choosing to com m ercialize an invention in this country, has permitted the inventors to retain foreign patent rights. Specifically, three federal em ployee-inventors share the rights to obtain certain foreign patents. The United States owns the domestic patent. These individuals have obtained some foreign patent rights and have en­ tered a licensing agreem ent with a private firm, granting it the right to exploit the inventions overseas in exchange for royalties. Draft OGE letter, at 2-3. At the same tim e, the agency employing th e three inventors has awarded an exclusive license to develop and exploit the inventions domestically to the same licensee. M oreover, the agency intends to enter a CR A D A with the licensee under which that firm would handle the clinical trials necessary to test and evaluate the inven­ tion for the m arketplace. ‘Thus, the private firm has an exclusive license for both the G overnm ent’s dom estic patent rights and the em ployee-inventors’ foreign pat­ ent rights, plus a research and developm ent agreement with the Government to develop and test the product.” Id. at 4. Two o f the three employee-inventors will be directly involved, as part of their official duties, with work related to the inven­ tion through the CRADA. It is, in fact, “typical for the inventor and the Govern­ ment to enter into licensing agreements with the same firm ” and “it is often in the G overnm ent’s best interest to allow inventors w ho hold foreign rights to continue to develop their w ork.” Id. at 4. O G E has concluded that the em ployee-inventors have a § 208 “financial inter­ est” in their inventions “because they own the foreign patent rights from which they receive royalties,” and that they cannot, therefore, “officially act on any matter involving the private firm to which they assigned their patent rights. This prohibi­ tion would include work by the em ployee-inventors on the research and develop­ ment agreem ent with the private firm .” Id. at 5. In distinguishing these interests from the interest of an employee-inventor in section 7 royalty payments, OGE notes that here the inventors, not th e United States, own the patent rights and that they consequently are “placed into a direct relationship with the party paying roy­ alty fees.” Id. M oreover, OGE points out that the licensing agreement itself con­ stitutes a § 208 “financial interest.” 52 Ethics Issues R elated to the FTTA o f 1986 W e agree with OGE that the employee-inventors are prohibited by § 208(a) from taking official action involving the CRADA between the United States and their licensee. The license agreement between the employee-inventors and the governm ent’s contractor appears to constitute a “financial interest” under § 208(a). Accordingly, the employee may not participate “through decision, approval, disap­ proval, recommendation, the rendering o f advice, investigation or otherwise,” in the performance or administration of the CRADA. W e do not, however, believe it necessary to determine whether the inventor-employees’ interest in foreign patent rights constitutes a “financial interest” that in itself would prohibit them from oth­ erwise continuing the governm ent’s research into this invention. W hile the employee-inventors’ section 8 ownership interest in the foreign patent rights to the invention is distinguished from their royalty rights under section 7, both interests constitute an integral part of the FTTA incentive program created by Congress. Both arguably may be characterized as “com pensation” to the employee, and there seems little reason to distinguish between the two interests — both o f which will be known to the individuals’ supervisors. It is unnecessary to resolve this broader question, and we decline to do so.9 W ALTER DELLINGER Acting Assistant Attorney General Office o f Legal Counsel 9 There does, how ever, appear to be a cle ar d istinction betw een ow ning the patent rights them selves, and an interest in a licensing agreem ent under w hich those rights are exploited T his w ould be a nalogous to an em ployee who receives section 7 royalty paym ents, and w ho invests those sum s in the shares o f a business corporation Such an em ployee w ould be forbidden by § 208(a) to participate in a C R A D A w ith th a t corpo­ ration involving the em p lo y e e's invention T his is true not because the royalties, or patent rig h ts under section 8 are a "financial interest,” but because the em p lo y ee’s investm ent, or licensing agreem ent, is such an interest 53

Write a legal research memo on the following topic.

Ethics Issues Related to the Federal Technology Transfer Act of 1986 A g o v ern m en t em p lo y ee-inventor who assigns his rights in an invention to the U nited States and ac­ cepts the g o v ern m en t’s paym ent of am ounts tied to the resulting royalties, as provided in the F ed­ eral T echnology T ransfer Act of 1986, m ay continue to w ork on the invention w ithout violating the statu te ag ain st taking part in matters in w hich he has a financial interest, 18 U .S.C. § 208, or the statu te forbidding supplem entation of federal salaries, 18 U.S.C. § 209 U nder 18 U .S.C § 208, a governm ent em ployee-inventor m ay not take official action with respect to an agreem ent for developm ent of his invention entered into by the U nited States and a com pany w ith w h ich the em p lo yee has contracted to exploit the invention abroad. Septem ber 13, 1993 M em orandum O ffice of O p in io n fo r t h e D ir e c t o r G o v e r n m e n t E t h ic s Y ou have asked us to advise w hether we agree with a Septem ber 27, 1988, letter from the Office o f Government Ethics (“OGE”) to the Departm ent of Commerce (“ 1988 O G E letter”) and to review a draft O G E letter to the Special Counsel for Ethics at the D epartm ent of Health and Human Services (“draft OGE letter”). Both letters address issues involving the relationship between federal conflict-ofinterest laws and the Federal Technology Transfer A ct of 1986 (“FTTA”), as amended, 15 U.S.C. §§ 3701-3717. W e believe that the 1988 OGE letter was cor­ rect in concluding that payments to a government employee under FTTA section 7 do not violate 18 U.S.C. § 208 or 18 U.S.C. § 209(a). W e also agree with the con­ clusion o f the draft O G E letter that, on the specific facts stated there, § 208 bars an employee from w orking in his official capacity on an invention for which the em ­ ployee holds a foreign patent, and for which the employee has contracted for for­ eign com m ercialization with the sam e company that is under contract with the federal governm ent to develop the invention. I. C ongress enacted the FTTA in 1986 as part o f a continuing effort to encourage technology transfers from federal research laboratories to private industry. The FTTA am ended the Stevenson-W ydler Technology Innovation Act o f 1980, Pub. L. No. 96-480, 94 Stat. 2311, which created incentives for federal agencies and employees to w ork with private industry in com m ercializing new technologies de­ veloped in federal laboratories.1 T o this end, section 7 o f the FTTA requires a 1 See, e.g., 132 Cong. Rec. 20,388 (1986) (statement of Sen. Gorton) (“The FTTA is designed to improve the transfer o f technology out of the Federal laboratories and into the marketplace. . . . It improves the 46 Ethics Issues R elated to the FTTA o f 1986 government agency to “pay at least 15 percent of the royalties or other income the agency receives on account of any invention to the inventor . . . if the inventor .. . assigned his or her rights in the invention to the United States.” 15 U.S.C. § 3710c(a)(l)(A )(i). Once section 7 payments are made to an employee-inventor, the individual generally will continue to work on the development and im prove­ ment of the invention, including its commercialization as part of federal research and development efforts. These efforts may include a cooperative research and development agreement (“CRADA”). CRADAs are cooperative agreements with universities or other entities in the private sector and are aimed at refining an in­ vention and transferring it to the marketplace. They are specifically authorized under section 2 of the FTTA.2 At the same time, federal ethics laws generally prohibit government em ployees from personally participating in matters where they have a “financial interest.” Under 18 U.S.C. § 208: Except as permitted by subsection (b) hereof [concerning waivers and other exclusions], whoever, being an officer or employee of the executive branch o f the United States Government . . . participates personally and substantially as a Government officer or employee, through decision, approval, disapproval, recommendation, the ren­ dering o f advice, investigation, or otherwise, in a judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter in which, to his knowledge, he . . . has a financial interest — Shall be subject to the penalties set forth in section 216 o f this title. 18 U.S.C. § 208(a).3 If amounts paid to government employees under FTTA sec­ tion 7 constitute a “financial interest” in the invention, then the employee-inventor probably would be forbidden to continue working on the project while receiving section 7 payments. incentives for Federal scientists to put in the time and effort to explore the commercial possibilities o f their inventions by requiring agencies to share **t least 15 percent of the royalties received from patents with the inventor.’’) ‘ Section 2 provides in relevant part: Each Federal agency may permit the director of any of its Government-operated Federal laborato­ ries, and, to the extent provided in an agency-approved joint work statement, the director of any of its Govemment-owned, contractor-operated laboratories — (1) to enter into cooperative research and development agreements on behalf of such agency . and (2) to negotiate licensing agreements . . for inventions made or other intellectual property developed at the laboratory and other inventions or other intellectual property that may be vol­ untarily assigned to the Government 15 U.S.C § 3710a(a). * Section 216 provides both civil and criminal penalties for violations of § 208. 18 U S C. § 216 47 O pinions o f th e O ffice o f L egal Counsel In- 1988, OGE resolved this apparent conflict by concluding that amounts paid to federal em ployees under section 7 constitute compensation from the government and that such com pensation does not constitute “a financial interest” under § 208. While the 1988 opinion was not reviewed by this Office at that time, it is consistent with views we expressed in an earlier opinion. In 1980, this Office concluded that § 208(a) does not cover a situation “in which the" only financial interest in the [particular matter] is that which federal employees have in their government posi­ tion and salary, as to which no outside financial interest is im plicated.” See M emo­ randum for Thom as M artin, Deputy Assistant Attorney General, Civil Division, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: 18 U.S.C. § 208 a n d Pending Salary Adjustm ent Litigation at 3 (Jan. 24, 1980) (“ 1 9 8 0 O pinion”) 4 The question whether the term “ financial interest” as used in § 208 covers com­ pensation received by a government employee in connection with his government em ploym ent has never been conclusively settled.5 As in any task of statutory con­ struction, we begin with the text, see, e.g., United States v. Turkette, 452 U.S. 576, 580 (1981) (“In determ ining the scope o f a statute, we look first to its language.”), and are bound by the “fundamental canon” 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). Section 208 does not define the term “financial interest.” It could b e interpreted to refer to any number of potential monetary or other personal interests of a covered person, including an individual’s federal com pensation. 4 In 1985 and again in 1987, we admittedly questioned the correctness of the 1980 Opinion in light of the “‘plain language” of § 208(a) See Memorandum for Richard K. Willard, Assistant Attorney General, Civil Division, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, Re 18 U.S.C § 2 0 8 a nd Participation o f Departmental A ttorneys in Debt Ceiling Litigation at 2 n 1 (Dec. 6, 1985); Memorandum for the Solicitor of the Intenor, from Samuel A. Alito, i r , Deputy Assistant Attorney General, Office of Legal Counsel, Re Scope of the Term “Particular Matter ” Under 18 U.S.C 208 at 9 n 13 (Jan. 12, 1987) Notwithstanding those opinions, w e adhere to our 1980 Opinion. 5 The only case arguably on point is U nited States v. Lund, 853 F.2d 242 (4th Cir. 1988) In that case, the court applied § 208 to interests arising from a federal em ployee’s government salary. The facts of that case, however, are unique. The defendant w as a federal manager who married a subordinate and kept their m am age secret. The defendant continued to supervise his wife and, over time, granted her higher pay, pro­ moted her over another applicant, and recommended her for a government-funded graduate school program This conduct was found to violate § 208. The specific issue before the Court, however, was whether § 208(a) was “applicable to conflicts of interest in intra-agency personnel matters." Id. at 243. Based upon the statute’s plain language, the Court concluded that § 208(a) was applicable to such conflicts, rejecting the argument that the statute’s “reach is limited to conflicts of interest in matters involving outside suppliers of goods and services to the government.” Id. at 244. The implication of the Lund court’s decision was that a federal em ployee’s spouse’s employment contract represented a § 208 “financial interest,” even if that contract was with the federal government. The Court did not, however, directly address the issue whether the covered employee’s own federal employment con­ tract could constitute a “financial interest” giving rise to a prohibited conflict. Moreover, it is significant that the arrangement was kept secret As will be discussed infra, Congress appears to have been principally concerned with financial interests that would not be known to the agency involved In any case, it is unclear whether Lund could be extended beyond its very peculiar facts. 48 Ethics Issues R elated to the FTTA o f 1986 It is also true, however, that in “ascertaining the plain meaning of [a] statute, the court must look to . . . the language and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988).6 In this regard, the provisions of § 208(b) may illuminate the meaning of subsection (a). Section 208(b) provides that: Subsection (a) hereof shall not apply (1) if the officer or employee first advises the Government official responsible for appointment to his position o f the nature and circumstances o f the judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter and makes full disclosure of the financial interest and receives in advance a written determination made by such offi­ cial that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the Government may ex­ pect from such officer or employee. 18 U.S.C. § 208(b). The creation o f a procedure whereby employees may obtain exceptions from the prohibitions o f subsection (a) upon disclosure of their financial interest indicates that Congress was not referring to “financial interests” that need no disclosure, such as the compensation a federal employee receives from the government. This rationale led to our original determination that the compensation received by fed­ eral employees was not a “financial interest” within the meaning of § 208(a). As noted in the 1980 Opinion, the full disclosure requirements of § 208(b) “suggest that the interest of concern is one that, without such disclosure, would not be ordi­ narily known to the appointing official. Otherwise, there would appear to be no logical or practical reason for requiring ‘full disclosure’ by the federal em ployee.” 1980 Opinion at 2. This interpretation of § 208 is supported by its legislative history. Section 208 was enacted in its present form in 1962.- Before its enactment, 18 U.S.C. §434 forbade federal employees from acting for the United States in the transaction of business with any business entity in which they were “directly or indirectly interested in the pecuniary profits or contracts.” 18 U.S.C. § 434 (1958). In 1962 § 434 was replaced by § 208, which was intended to broaden the scope of its pro­ hibitions — in particular to cover financial interests held by the spouse, children and partners of covered persons. However, as noted in our 1980 Opinion, it is doubtful that Congress meant to “sweep within § 208’s ambit every conceivable financial interest o f whatever type.” 1980 Opinion at 3. For example, the Senate Report on the bill that became § 208 explained that: 6 See also Richards v United Stales, 369 U S. I (1962), Federal Power Comm'it v Panhandle Eastern Pipe Line Co , 337 U S 498 (1949) 49 O pinions o f th e O ffice o f Legal C ounsel The disqualification of the subsection embraces any participation on behalf o f the Government in a matter in which the employee has an outside fin a n cia l interest, even though his participation does not in­ volve the transaction of business. Id. (citing S. Rep. No. 87-2213, at 13 (1962)) (emphasis added). Thus, § 208 was enacted to extend the reach of federal conflict-of-interest prohibitions to cover the “outside” financial interests of a covered employee — those interests outside of the individual’s federal employment contract that would not necessarily be evident to the em ployee’s superiors. Examples would include personal investments or the financial interests o f an em ployee’s family or business partners. There is little evi­ dence that Congress m eant also to encom pass the em ployee’s interest in his own federal com pensation. Indeed, if “financial interest” is interpreted to include compensation received from the federal governm ent, the section could lead to absurd results. If an em­ ployee’s federal salary w ere characterized as a “financial interest” under § 208(a), any action taken with the intent to increase that salary — enthusiastically and con­ scientiously perform ing his or her duties in the hope of promotion for example — might be forbidden by that section. O r an em ployee who must decide claims brought against the United States — a Social Security hearing officer for example — m ight well violate § 208 whenever he or she decides in favor o f the federal gov­ ernm ent. An em ployee might be said to have a conflicting “financial interest” in protecting the federal treasury, from which his or her own livelihood is drawn, and § 208(a) expressly reaches the financial interests of the government em ployee’s employer. There appears to be no principled distinction that would exclude such actions or determ inations made by an officer or employee from § 208’s reach, if federal com pensation is considered a “financial interest.” Such an interpretation of the statute would subject federal em ployees to possible prosecution under § 208 for the vigilant perform ance o f their duties. In addition, we note that Congress enacted the FTTA against the background of the conflict-of-interest laws, including § 208. It is well settled that statutes must be construed as consistent if possible, and that an earlier statute should not be read broadly when the result would be to circum vent a later enactment. See Watt v. Alaska, 451 U.S. 259, 266-67 (1981); Patterson v. McLean Credit Union, 491 U.S. 164, 181 (1989). In this connection, we note that the Supreme Court has de­ clined to interpret federal conflict-of-interest laws broadly when the effect would be to forbid activity specifically authorized by Congress in a later enactment. See U nited States v. Chemical Found., Inc., 272 U.S. 1, 17-19 (1926) (predecessor statute o f § 208 does not cover transactions authorized under later measure passed to deal with wartim e conditions).7 W e believe that § 208 can and should be inter­ preted as consistent with the provisions of the FTTA. 50 Ethics Issues R elated to the FTTA o f 1986 Payments made to employees under FTTA section 7 are federal compensation, indistinguishable for these purposes from salary, benefits, and other paym ents such as performance awards. The 1988 OGE letter concluded that royalty payments made under section 7 should be viewed as “additional compensation for Federal service,” noting that the United States retains ownership rights in the invention under FTTA section 7 and that the inventor receives his or her share in the royalty payments from the United States, not directly from the outside licensee. This con­ clusion finds additional support in section 7, which provides that em ployees can receive payments in excess o f $100,000 under this program only with the approval of the President under the provisions regarding presidential cash awards — 5 U.S.C. § 4504. 15 U.S.C. § 3710c(a)(3). Therefore, we conclude that compensation received by an employee under FTTA section 7 does not constitute a “financial interest” under § 208. Such em­ ployees may receive payments under section 7 and continue to work on the devel­ opment and commercialization of their inventions.8 II. In addition, we agree with the 1988 OGE letter’s conclusion that FTTA section 7 payments are not prohibited supplementations of salary under 18 U.S.C. § 209(a). Section 209(a) prohibits federal employees from receiving any supple­ mentation of salary in consideration of the performance of their official duties “from any source other than the Government o f the United States.” Since an em­ ployee receives section 7 payments from the federal agency holding the rights to the invention, the payments are not subject to § 209(a)’s prohibition. III. The draft OGE letter concerns section 8 of the FTTA. Under that section, when an agency having the right to ownership of an invention 7 See also Bustc v United States, 446 U.S 398, 406 (1980) (more specific statute given precedence over more general one, regardless of sequence of enactment). We acknowledge that the Senate report on the FTTA stated that the provisions of the bill “ma[d]e no changes in the conflict of interest laws affecting Federal employees or former Federal employees ” S Rep No. 99-283, at 10 (1986) This statement, however, could indicale that the Congress that passed the FTTA may well have believed that § 208 did not reach any forms of compensation by the government 8 Given this conclusion, it follows that an employee entitled, or potentially entitled, to payments under section 7 also may work on an invention pursuant to a CRADA, without violating § 208 It would be entirely arbitrary to conclude that an employee could work on an invention potentially leading to such payments before, but not after, a CRADA is signed by the federal laboratory that employs him. He would have the same interest m the potential payments, and the substance of his research would likely be the same, both before and after his laboratory entered into the CRADA. Furthermore, the FTTA expressly contemplates that employees, in at least some circumstances, will continue to work on their inventions under CRADAs. • 15 U.S C. § 3710a(b)(5) Application of § 208 would mean that, absent a waiver, employees could never do such work under CRADAs, because successful work would enable the employees to receive larger payments under section 7. There is no indication that Congress intended such a result 51 Opinions o f th e O ffice o f L eg a l C ounsel does not intend to file for a patent application or otherwise to pro­ mote com m ercialization of such invention, the agency shall allow the inventor, if the inventor is a G overnm ent employee or former em ployee who m ade the invention during the course of employment with the G overnm ent, to retain title to the invention [subject to res­ ervation o f a nonexclusive, license for the Government], 15 U.S.C. § 3710d(a). Under this provision and implementing regulations, an agency may determ ine to prosecute a patent application in the United States, but not abroad, leaving foreign rights to the em ployee-inventor. 37 C.F.R. § 101.8 (1993). The draft O G E letter addresses a case in which the federal government, while choosing to com m ercialize an invention in this country, has permitted the inventors to retain foreign patent rights. Specifically, three federal em ployee-inventors share the rights to obtain certain foreign patents. The United States owns the domestic patent. These individuals have obtained some foreign patent rights and have en­ tered a licensing agreem ent with a private firm, granting it the right to exploit the inventions overseas in exchange for royalties. Draft OGE letter, at 2-3. At the same tim e, the agency employing th e three inventors has awarded an exclusive license to develop and exploit the inventions domestically to the same licensee. M oreover, the agency intends to enter a CR A D A with the licensee under which that firm would handle the clinical trials necessary to test and evaluate the inven­ tion for the m arketplace. ‘Thus, the private firm has an exclusive license for both the G overnm ent’s dom estic patent rights and the em ployee-inventors’ foreign pat­ ent rights, plus a research and developm ent agreement with the Government to develop and test the product.” Id. at 4. Two o f the three employee-inventors will be directly involved, as part of their official duties, with work related to the inven­ tion through the CRADA. It is, in fact, “typical for the inventor and the Govern­ ment to enter into licensing agreements with the same firm ” and “it is often in the G overnm ent’s best interest to allow inventors w ho hold foreign rights to continue to develop their w ork.” Id. at 4. O G E has concluded that the em ployee-inventors have a § 208 “financial inter­ est” in their inventions “because they own the foreign patent rights from which they receive royalties,” and that they cannot, therefore, “officially act on any matter involving the private firm to which they assigned their patent rights. This prohibi­ tion would include work by the em ployee-inventors on the research and develop­ ment agreem ent with the private firm .” Id. at 5. In distinguishing these interests from the interest of an employee-inventor in section 7 royalty payments, OGE notes that here the inventors, not th e United States, own the patent rights and that they consequently are “placed into a direct relationship with the party paying roy­ alty fees.” Id. M oreover, OGE points out that the licensing agreement itself con­ stitutes a § 208 “financial interest.” 52 Ethics Issues R elated to the FTTA o f 1986 W e agree with OGE that the employee-inventors are prohibited by § 208(a) from taking official action involving the CRADA between the United States and their licensee. The license agreement between the employee-inventors and the governm ent’s contractor appears to constitute a “financial interest” under § 208(a). Accordingly, the employee may not participate “through decision, approval, disap­ proval, recommendation, the rendering o f advice, investigation or otherwise,” in the performance or administration of the CRADA. W e do not, however, believe it necessary to determine whether the inventor-employees’ interest in foreign patent rights constitutes a “financial interest” that in itself would prohibit them from oth­ erwise continuing the governm ent’s research into this invention. W hile the employee-inventors’ section 8 ownership interest in the foreign patent rights to the invention is distinguished from their royalty rights under section 7, both interests constitute an integral part of the FTTA incentive program created by Congress. Both arguably may be characterized as “com pensation” to the employee, and there seems little reason to distinguish between the two interests — both o f which will be known to the individuals’ supervisors. It is unnecessary to resolve this broader question, and we decline to do so.9 W ALTER DELLINGER Acting Assistant Attorney General Office o f Legal Counsel 9 There does, how ever, appear to be a cle ar d istinction betw een ow ning the patent rights them selves, and an interest in a licensing agreem ent under w hich those rights are exploited T his w ould be a nalogous to an em ployee who receives section 7 royalty paym ents, and w ho invests those sum s in the shares o f a business corporation Such an em ployee w ould be forbidden by § 208(a) to participate in a C R A D A w ith th a t corpo­ ration involving the em p lo y e e's invention T his is true not because the royalties, or patent rig h ts under section 8 are a "financial interest,” but because the em p lo y ee’s investm ent, or licensing agreem ent, is such an interest 53

Write a legal research memo on the following topic.

Removal of Members of the Advisory Council on Historic Preservation C ongress did not intend to limit the P resident's pow er to remove m em bers o f the Advisory C ouncil on H istoric Preservation without cause prior to the expiration of their term s of office. W hile certain of the C o u n c il’s structural attributes an d substantive functions suggest that Congress intended to vest the C ouncil w ith a m easure of day-to-day independence from other federal agencies, this does not m ean that it intended the Council to operate free o f the supervision and control of the President h im self through his exercise of th e removal power. T he prim ary functions o f the Council are executive in nature, and thus not such as would permit C ongress co nstitutionally to insulate its m em bers from the President’s removal power; it will therefore not be inferred from C ongress silence on the m atter that it intended to do so. A legislative schem e in w hich disputes betw een executive agencies are to be settled in federal or state court w ould raise a num ber of serious constitutional problem s, under both Article II and Article III, and such an intent on Congress part will not be assum ed absent the m ost com pelling and unam biguous language. March 11, 1982 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT This memorandum addresses the question whether the members of the Adviso­ ry Council on Historic Preservation (Council) are removable by the President without cause prior to the expiration of their terms of office. For the reasons set forth below, we conclude that Congress did not intend the Council to operate free of the supervision and control of the President, and specifically that it did not intend to impose restraints on the President’s presumptive authority to remove his appointees to the Council. We conclude in addition that the primary functions of the Council are not such as would permit Congress, consistent with the Constitu­ tion, to insulate Council members from the President’s removal power. I. The Council The Council was created by the 1966 National Historic Preservation Act (the Act), Pub. L. No. 89-665 , 80 Stat. 915, 917, with the specific mandate of advising the President and Congress on matters relating to historic preservation, recommending measures to coordinate public and private preservation efforts, and “ reviewing” federal agency actions affecting properties listed on the Na­ tional Register of Historic Places. See H.R. Rep. No. 1916,86th Cong., 2d Sess. 180 1 (1966). As amended in 1980 by Pub. L. No. 96-515, 94 Stat. 2987, the Act provides that the Council should be composed of 19 members, 17 of whom are appointed by the President.1Of the 17 presidential appointees, seven are other­ wise officers of the United States: the Secretary of the Interior, the Secretary of Agriculture, and the Architect of the Capitol serve ex cfficio; the President appoints the heads of four other “ agencies of the United States” whose activities affect historic preservation. The remaining ten members consist of one governor, one mayor, four experts in the field of historic preservation, three at-large members from the general public, and a chairman selected from the general public, all appointed by the President. The tenure of the federal agency heads on the Council is, we believe, dependent on their continuing service as agency heads. And, with the exception of the two members whose tenure depends in part upon state or local election results, the non-federal presidential appointees serve for terms of four years. The statute and its legislative history are silent on the matter of Council members’ removal from office prior to the end of a term .2 The Council is established “ as an independent agency of the United States Government.” 16 U.S.C. § 470i. It is exempt from the Federal Advisory Com­ mittee Act, but is subject to the Administrative Procedure Act, 16 U.S.C. § 470g. It has an independent budget as a “ related agency” of the Department of the Interior, 16 U.S.C. § 470t, and authority to hire its own executive director and staff, 16 U.S.C. § 470m(a). Its executive director is in turn authorized to appoint a general counsel and other staff attorneys. 16 U.S.C. § 470m(b). The Council must submit an annual report to the President and Congress, 16 U.S.C. § 470j(b), and is authorized to submit legislative recommendations and testi­ mony directly to relevant congressional committees without prior clearance from the Office of Management and Budget. 16 U.S.C. § 470r. Because the nature of the functions performed by an entity is an important factor in determining the constitutional limits of congressional power to restrict the President’s power to remove his appointees, see Wiener v. United States, 357 U.S. 349, 353 (1958), that subject has also become a focal point in determining congressional intent concerning presidential removal power. We therefore set out the Council’s duties in full in the following paragraphs. The Council’s advisory functions are described in § 202 of the Act, 16 U.S.C. § 470j. As there directed, the Council shall: 1 The C hairm an of the N ational Trust for H istoric Preservation and the President o f the N ational C onference o f State H istoric Preservation O fficers serve on the C ouncil ex cfficio See 16 U .S .C . § 470i(a)(7) an d (8) B ecause these tw o m em bers o f the C ouncil are not appointed by the P resident, they m ay not participate in any C o uncil functions in w hich they m ust constitutionally act as officers of the U nited States, an d m u st confine th e ir participation in the C o u n cil’s ac tivities to those areas in w hich its role is purely advisory See letter o f Dec 1, 1980, from A lan A farker, A ssistant A ttorney G eneral, to the D irector, O ffice of M anagem ent and Budget. 2 The discussion of th e P resid en ts rem oval pow er in this m em orandum applies to all o f his ap pointees w hose tenure in office j s not o therw ise subject to his control by virtue o f their positions as officers of the U nited States— a group w hich constitutes at least ten persons, and thus a m ajonty o f the Council T he P resid en ts pow er to rem ove the tw o C abinet m em bers w ho serve ex cfficio is unquestioned. The four other agency heads are likew ise su b ject to presidential rem oval, at least in their capacity as head of an Executive Branch agency. T hough the A rchitect o f the C apitol is listed as a congressional officer o r agent of C ongress in the C ongressional D irectory, and is largely su b ject to congressional direction in the perform ance of his d u ties, he is appointed and subject to rem oval by the P resident alone. See letter o f A ugust 13. 1979, from A ssistant A ttorney G eneral H arm on to Senator D o m en ici, citin g an opinion o f the O ffice o f Legal C ounsel dated June 1, 1953 181 (1) advise the President and the Congress on matters relating to historic preservation; recommend measures to coordinate ac­ tivities of Federal, State, and local agencies and private institu­ tions and individuals relating to historic preservation; and advise on the dissemination of information pertaining to such activities; (2) encourage, in cooperation with the National Trust for His­ toric Preservation and appropriate private agencies, public inter­ est and participation in historic preservation; (3) recommend the conduct of studies in such areas as the adequacy of legislative and administrative statutes and regulations pertaining to historic preservation activities of State and local governments and the effects of tax policies at all levels of govern­ ment on historic preservation; (4) advise as to guidelines for the assistance of State and local governments in drafting legislation relating to historic preserva­ tion; and (5) encourage, in cooperation with appropriate public and private agencies and institutions, training and education in the field of historic preservation; (6) review the policies and programs of Federal agencies and recommend to such agencies methods to improve the effec­ tiveness, coordination, and consistency of those policies and programs with the policies and programs carried out under this Subchapter; and (7) inform and educate Federal agencies, State and local gov­ ernments, Indian tribes, other nations and international organiza­ tions and private groups and individuals as to the Council’s authorized activities. 16 U .S.C . § 470j(a). In addition, under § 106 of the Act, federal agency heads are required to afford the Council “ a reasonable opportunity to comment” before approving any expenditure of federal funds on, or licensing of, an undertaking which would affect properties on the National Register of Historic Places. See 16 U.S.C. § 470f.3 Section 211 of the Act authorizes the Council to promulgate “ such rules 3 S everal c o u rts have had occasion to co n stru e the “ reasonable oppo rtu n ity to co m m en t” authority in § 106. In WATCH v. H arris, 603 F.2d 3 1 0 (2d Cir. 1979), cert, denied, 444 U .S 9 9 5 (1979), Ju d g e O akes review ed the legislative h isto ry o f § 106 an d concluded th a t C ongress intended to provide a “ m eaningful review " o f fed eral or federally assiste d projects w hich affect h isto ric properties. 603 F.2d at 324. T h e S ecretary o f H ousing an d U rban D ev elo p m en t w as found to have violated § 1 0 6 in failing to consider the im pact o f a h ousing project o n certain h isto ric p ro p e rtie s , and in failing to solicit th e C ouncil's ad v ice. T h e court o f appeals th erefore affirm ed th e district c o u rt's in ju n ctio n ag a in st proceeding with th e project. B ut see Commonwealth c f Pennsylvania v. Morton, 381 F. S u p p 2 9 3 , 2 9 9 (D .D .C . 1974). in which th e S ecretary o f th e Interior h ad initially failed to co nsult w ith and s u b se q u en tly failed to follow th e recom m endations o f th e A dvisory C ouncil in a m atter involving a land exchange a g ree m en t an d th e c o n stru c tio n o f a tower o n previously federal property n e a r G ettysburg N ational C em etery. The c o u rt found th a t th e S ecretary had “ substantially co m p lied ” w ith § 106 by referrin g the m atter to the C o u n cil fo r its c o m m en ts afte r th e land ex c h an g e agreem ent h a d been sig n ed , and that " [ i] f he deviated from its recom m endation, th e S ecretary w as authorized to d o so in his d isc re tio n by th e express term s” o f 16 U .S .C . § 4601-22(b). See 381 F. Supp. at 298 n .7 . T h e C o u n c il's reviewing a u th o rity under § 106 is enhanced by Executive O rd er 11593, 36 Fed. C o ntinued 182 and regulations as it deems necessary to govern the implementation” of § 106 of the Act. 16 U.S.C. § 470s. As previously noted, the Council’s executive director is authorized to appoint a General Counsel and other staff attorneys, who in turn are authorized: to assist the General Counsel, represent the Council in courts of law whenever appropriate, including enforcement of agreements with Federal agencies to which the Council is a party, assist the Department of Justice in handling litigation concerning the Coun­ cil in courts of law, and perform such other legal duties and functions as the Executive Director and the Council may direct. 16 U.S.C. § 470m(b). The Council would appear, therefore, to be authorized to bring lawsuits under some circumstances against at least some other federal agencies.4 The 1980 Amendments to the Historic Preservation Act expanded the Coun­ cil’s authority in a new § 214, under which the Council is authorized to make rules for exempting certain federal actions from the requirements of the Act: The Council, with the concurrence of the Secretary, shall promul­ gate regulations or guidelines, as appropriate, under which Federal programs or undertakings may be exempted from any or all of the requirements of this Act when such exemption is determined to be consistent with the purposes of this Act, taking into consideration the magnitude of the exempted undertaking or program and the likelihood of impairment of historic properties. 16 U.S.C. § 470v.5 R eg. 8921 (1971), w hich requires thal an agency proposing to “ sell, dem olish o r substantially alter” an y federally ow ned p roperty w h ich “ m ight q u alify ” fo r nom ination to the N ational Register, m ay take n o action until the A dvisory C ouncil has been provided “ an opportunity to com m ent.” E xecutive O rd er 11593 also requires that federal agencies consult w ith th e C ouncil in adopting procedures to assure that th e ir policies and program s contribute to the preservation o f both federally and non-federally ow ned properties o f h isto n c significance See WATCH v H a m s, 603 F.2d at 325 U nder the 1980 A m endm ents to the A ct, a sim ilar “ opportunity to co m m en t” m ust be afforded the C ouncil un d er § 1 1 0 (0 of the A ct w henever federal agency actions “ m ay directly and adversely affect” any d esignated N ational H istoric L andm ark. See § 206 o f Pub. L. N o. 9 6 -5 1 5 , 94 Stat. 2987, 2996. 4 T he phrase “ including en forcem ent o f agreem ents w ith Federal agencies to w hich the C ouncil is a p arty ” was added to th e statute in 1980 See § 301(i) o f Pub. L. N o. 9 6 -5 1 5 , 94 Stat. at 2999. W hile no referen ce to them appears elsew here in the A ct, the legislative history of the 1980 A m endm ents suggests that the referenced “ agreem ents” are those described in the C o u n c il’s regulations in fc rt 800 o f Title 36, C o d e o f Federal Regulations See 36 C .F .R . § 8 0 0 .6 (c) (M em orandum o f A greem ent). See also H .R Rep. N o. 1457, 96 th C o n g ., 2d Sess. 42 (1980) (1 980 H ouse Report) (“ specifically added is language that refers to the enforcem ent o f agreem ents w ith Federal agencies u n d er S ection 106, other authorities contained in this A ct and im plem enting regulations” ). T he agreem ents are en tered into by parties to the “ consultation process” by w hich the C ouncil carries o u t its com m enting function under § 106 o f the A ct, w henever it is determ ined that a federal undertaking w ill have an adverse effect on an historic property. T h e agreem ent m ust “ detail[] the actions agreed upon by the consulting parties to be taken to avoid, satisfactorily m itigate, o r accept the adverse effects o n the property.” 3 6 C .F .R . § 8 00.6(c)(1). “ T h e consulting parties” include the head of the federal agency having responsibility fo r the undertaking, the H istoric P reservation O fficer o f the State involved, and the executive d irecto r o f th e C o u n cil. O th er public and private “ parties in in terest” m ay b e invited by the consulting parties to p articipate in the consultation process. 3 T h e term s o f § 2 1 4 are am biguous w ith respect to the nature o f the authority co n ferred , and have not y et b een interpreted by e ith e r th e C ouncil o r th e co u rts. T h e rulem aking authority und er § 214 clearly cannot b e exercised absent prio r secretarial “ co n c u rre n ce.” O n ce exercised w ith th e S ecretary’s con cu rren ce, however, th a t authority, unlike the “ o p p o rtu n ity to co m m en t” requirem ent o f § 106, appears to co ntem plate the estab lish m en t an d enforcem ent o f a substantive standard o f co n d u c t w hich w ill be binding on “ Federal program s o r u n d ertak in g s” having an im pact o n historic properties 183 Finally, § 202(b) directs the Council to submit an annual report on its activities to the President and Congress, as well as any additional periodic reports that it deems advisable: Each report shall propose such legislative enactments and other actions as, in the judgment of the Council, are necessary and appropriate to carry out its recommendations and shall provide the Council’s assessment of current and emerging problems in the field of historic preservation and an evaluation of the effectiveness of the programs of Federal agencies, State and local governments, and the private sector in carrying out the purposes of this Act. 16 U .S.C . § 470j(b). In sum, the Council’s role under the statute is primarily that of an advocate, advisor, and educator in matters relating to historic preservation, with certain ancillary responsibilities as “ watchdog” over federal agencies whose activities affect historic properties. II. Statutory Restraints on the President’s Power to Remove Council Members At no time since the Council’s establishment has Congress expressed any intent to limit presidential control over the tenure of its members. It is true that certain of the structural attributes and substantive functions described in the foregoing section suggest that Congress intended to vest the Council with a measure of day-to-day independence from other federal agencies. This does not mean, however, that Congress intended the Council to operate free of the supervision and control of the President himself through the exercise of the removal power. With respect to the Council’s structure, we do not regard a statutory description of an entity as “ independent” as dispositive of the question of the President’s power to remove its members. In this case, the legislative history of the Act confirms the limited sort of “ independence” Congress intended for the Council. Under the 1966 Act, the Council was organizationally part of the Department of the Interior, with its budget and staff integrated into those of the National Park Service. By 1976, dissatisfaction with the limits this arrangement placed on the Council’s ability to function “ on an equal and independent basis,” particularly in reviewing actions of the Department of the Interior under § 106 of the Act, gave rise to the amendments which reorganized the Council “ as an independent agency in the Executive Branch.” See § 201(5) of Pub. L. 94—422 as described in S. Rep. No. 367, 94th Cong., 1st Sess. 11 (1975) (“ 1975 Senate Report”). In Committee Reports and in Hearings, the Council’s need for “ equal and inde­ pendent” status is discussed in terms of the conflicts arising from its admin­ istrative involvement with the Department of the Interior, and the resulting dayto-day pressures which had hampered the efficiency and impaired the objectivity of the Council. The change in status was effectuated, however, by nothing more 184 than modifying arrangements for the Council’s budget and staff. See 1975 Senate Report at 11; Hearings on S. 327 before the Subcommittee on Parks and Recreation cf the Senate Committee on Interior and Insular Affairs (Part 3), 94th Cong., 1st Sess. 301-05(1975) (Statement of Clement M. Silvestro, Chairman, Advisory Council on Historic Preservation) (1975 Senate Hearings). There is no suggestion in the 1976 Amendments or their legislative history that Congress intended that the Council be insulated from the ultimate control of the President, or, in particular, that its members should no longer be subject to his power to remove them.6 Indeed, the Council’s new “ independence” enhances its ability to perform its duty of advising the President apart from influence from the Depart­ ment of the Interior, and strengthens the Council’s difect relationship and respon­ siveness to the President rather than weaken them. The statute’s provisions dealing with the Council’s relationship with Congress are more problematic. As noted above, the Council has since its creation been explicitly charged with advising Congress as well as the President. In addition, since § 210 was added to the Act in 1976, the Council is relieved of any requirement to submit its legislative recommendations or testimony to any “ officer or agency” in the Executive Branch prior to their submission to Con­ gress. Because this direct reporting authority may have an important bearing on the removal power of the President, it is worth quoting in full: No officer or agency of the United States shall have any authority to require the Council to submit its legislative recom­ mendations, or testimony, or comments on legislation to any officer or agency of the United States for approval, comments, or review, prior to the submission of such recommendations, testi­ mony, or comments to the Congress. In instances in which the Council voluntarily seeks to obtain the comments or review of any officer or agency of the United States, the Council shall include a description of such actions in its legislative recommendations, testimony, or comments on legislation which it transmits to the Congress. 16 U.S.C. § 470r. On the one hand, the Council’s direct access to Congress suggests a legislative intent to have its own lines of communication with the Council kept free from political or policy influence from elsewhere in the Executive Branch. On the other hand, this reporting scheme need not necessarily interfere with the Presi­ dent’s general administrative control over the Council’s activities, and as far as we are aware, it has never done so.7 In this regard, it is significant that the 1980 6 N one of the structural attributes and substantive functions of the Council w hich m ight suggest a legislative intent to make its m em bers “ independent” of the P resident’s rem oval pow er w ere part o f the statute u n d er the 1966 A ct P rior to 1976, therefore, there can have been no doubt that its m em bers were rem ovable by the President. 7 In deed, we question w hether the statutory classification “ officer or ag en cy ” in § 470r m ust n ecessarily be co n strued to include the President h im se lf C om pare the definition o f “ officer” in § 2104 o f T itle 5 o f the U nited States C ode, w hich on its face w ould appear not to include the P resident. To the extent that a b ro ad co n struction o f this perm issive bypass provision in the legislative reporting area w ould itself raise constitutional separation o f pow ers issues, we w ould be inclined to read it narrow ly to perm it the President h im self a continued supervisory ro le. See Congress Construction Corp v. United States, 314 F 2 d 527, 5 3 0 -3 2 (C t C l. 1963) (P resid en t’s p o w er o f control includes the right to supervise and coordinate all replies and com m ents from the E x ecutive B ranch to C ongress) 185 Amendments to the Act repealed what had been the first sentence of § 210, which directed the Council’s concurrent submission to Congress of any and all of its legislative recommendations to the President.8 The present reporting scheme thus leaves the Council free to communicate with Congress directly and inde­ pendently if it chooses, but does not obligate the Council to share simultaneously with Congress all or indeed any of its advice to the President. The result is a potentially strengthened tie between the Council and the President, one freed of the congressional oversight im posed by the 1976 Amendments. Congress’ willingness in 1980 to give up the mandatory features of its own direct access to the Council and restore some measure of privacy to the relationship between the Council and the President, is scarcely consistent with an intention that the Council should not be subject to the President’s supervision and control, and in particular its members to his removal power. In summary, we find nothing in any of the structural aspects of the Council that establish an intent on the part of Congress to insulate the Council’s membership from the President’s removal power.9 Indeed, the most recent amendments to the Act suggest an intent to strengthen, rather than attenuate, the Council’s rela­ tionship with the President, to the point that Congress has actually relinquished some of the control it asserted in 1976. An examination of the Council’s functions leads us to the same basic con­ clusion. The Council’s advisory and reviewing roles under §§ 106 and 202 of the Act are primarily executive in nature, and, on a constitutional spectrum, locate the Council squarely within “ the Executive Branch.” While its “ watchdog” functions suggest the desirability of the Council’s maintaining a certain inde­ pendence from other Executive Branch agencies, this need for independence does not extend to the President himself. Indeed, it is likely that the Council would find it useful in fulfilling its statutory tasks to be able to call upon the President for support and assistance in its dealing with other federal agencies whose heads are subject to his removal power. A power to make rules and grant exemptions from them does not distinguish the Council from a number of other 8 T h e d eleted sentence provided: W henever th e C ouncil transmits an y legislative recom m endatio n s, o r testim ony, o r com m ents on legislation to the P resident or the O ffice o f M anagem ent and B udget, it shall con cu rren tly transm it c o p ies th ereo f to the H o u se Com m ittee o n Intenor and In su lar A ffairs an d the Senate C om m ittee on In te rio r and In su lar A ffairs T h e 1980 H o u se R eport co m m en ts on the requirem ent as having proven to h in d e r the C ouncil in its p ro v isio n of independent advice to both the P resident and the C o n g ress. See 1980 H ouse R ep o rt at 42 . We would in an y event question th e constitutionality of a legislative requirem ent that th e C o u n c il’s reports and recom m endations b e transm itted to C ongress w ith o u t affording it the oppo rtu n ity to co m m u n icate them first to th e President See note 7 , supra, an d Feb. 21, 1977, M em orandum O pinion fo r the A ttorney G en eral on “ In sp ecto r General L e g is la tio n ,” 1 Op. O .L .C . 16, 1 7 (1 9 7 7 ) C fB u c k le y \ Valeo, 424 U .S . 1, 1 3 7 -3 8 (1976) 9 C o n g ress m ay, o f c o u rse, utilize its ow n com m ittees for th e gathering o f inform ation o r appoint advisory co m m ittees to assist in its o w n legislative fu nctions. W here C ongress places the pow er o f appointm ent in the P resid en t, how ever, it m ust b e assum ed to have been aware that as a practical m atter presidential appointees w ill be d ep e n d en t upon th e P resident and not on C o n g re ss, and that a s a constitutional m atter the pow er to rem ove will follow fro m and be dictated by the structure chosen. 186 similarly charged Executive Branch agencies whose heads are clearly subject to the President’s removal power. See, e.g., 42 U.S.C. § 7418 (federal facilities must comply with EPA emissions rules under Clean Air Act); 42 U .S.C . § 2000e-16 (federal employers are subject to rules and regulations of Equal Employment Opportunity Commission). Authority in the Council to bring lawsuits against other Executive Branch agencies to enforce the provisions of the Act is somewhat more difficult to reconcile with a congressional intent that its members be subject to the Presi­ dent’s removal power. We therefore must examine closely the provisions in § 205(b) of the Act purporting to.give the Council authority to seek judicial “ enforcement of [its] agreements with Federal agencies.” As noted in the preceding section, § 205(b) of the Act authorizes the Council’s legal staff to “ represent the Council in courts of law whenever appropriate, including enforcement of agreements with Federal agencies to which the Council is a party,” and to “ assist the Department ofMustice in handling litigation concerning the council. . . .” 16 U.S.C. § 470m(b). Our understanding of this ambiguous mandate is not enhanced by reference to the legislative history of the provision. As originally enacted in 1976, this provision appears to have been intended to deal with the “jurisdictional conflicts” generated by the Council’s close administrative association with the Department of the Interior, and in particular the provision of day-to-day legal services to, the Council by the Solicitor of the Interior. See 1975 Senate Report at 12, 32; 1975 Senate Hearings at 303-04. It did not include the phrase referring to the enforcement of agree­ ments with other federal agencies. While the legislative history does not explain what Congress considered “ appropriate” representation of the Council in court by its own attorneys, it is possible that Congress had in mind some situation in which the Department of Justice was unwilling or unable for some reason to represent the United States in connection with a violation of the Act. Whatever litigating authority was intended for the Council in 1976, the addition in 1980 of the phrase referring to the enforcement of the Council’s agreements with other agencies suggests that Congress may by that time have been thinking of a situation in which the Department of Justice might be obligated to represent some other federal agency whose position as a party to one of the “ agreements” described in the Council’s regulations conflicted with that asserted by the Council itself.10 10 T hus the 1980 H o u se R eport states: S ection 301(i) clarifies the existing authority o f the C ouncil to institute legal p ro ceedings on its ow n b eh a if to en su re com pliance w ith the A ct. Specifically added is language that refers to the enforcem ent o f agreem ents w ith Federal agencies under S ection 106, o th er authorities contained in this A ct and im plem enting regulations. In m ost instances it is expected th at the C ouncil w ill utilize the services o f the D epartm ent o f Justice w ith regard to litigation However, it is reco g n ized that situations may arise where a Federal agency may violate the provisions c f this Act a nd the only recourse is initiation c f legal proceedings by the Council in its own name. 1980 H ouse R eport at 42 (em phasis supplied). We know o f no situation in w hich the Council has asserted fo r itse lf a litigating authority independent of the Justice D epartm ent, m uch less an authority to take an o p posing p o sitio n in litigation. 187 A legislative scheme in which disputes between Executive Branch agencies are to be settled in some forum other than one responsible to the President— in this case federal or state court— would raise a number of serious problems under both Article II and, potentially, Article III of the Constitution.' 1Indeed we doubt that Congress could constitutionally authorize one Executive Branch agency to sue another in a context such as this one. We will, therefore, not assume that Congress intended such a scheme absent the most compelling and unambiguous statutory language.12 III. Constitutional Analysis Aft examination of the relevant principles of constitutional law reinforces our conclusion that Congress intended Council members to be freely removable by the President. Although the Constitution does not explicitly provide for the removal of officers of the United States, it has long been the general rule that “ [i]n the absence of specific provision to the contrary, the power of removal is incident to the power of appointment.” //? re Hennen, 38U .S. (13Pet.)230, 259(1839). See also Myers v. United States at 119. The specification of a term of office does not indicate a congressional intent to preclude mid-term removal, but is merely a limitation of the period that the officer may serve without reappointment. See Parsons v. United States, 167 U .S. 324 (1897). Where the President’s appoint­ ment power is involved, the presumption against limiting the removal power is rooted in the “ take care” clause of the Constitution, and any limitations on it 11 A rticle II o f the C onstitution vests the ex e cu tiv e pow er of th e U nited S tates in the P resident, a pow er w hich includes general adm inistrative control over th o s e executing the law s See M yers v. United States, 272 U S 52, 16 3-64 (1926) T his pow er o f control extends to the entire E xecutive B ranch, and includes the coordination and supervision of all litigation undertaken in the nam e of the U nited States. It w as the intention o f the F ram ers, as recognized by the S uprem e C o u rt in the Myers c a se , that the executive power w ould be exercised in a “ unitary and u n ifo rm ” way. 272 U .S . at 135. T h e President th u s has a special obligation to review decisions o r actions that have given rise to conflict w ithin the Executive B ra n c h , and C o n g ress has no p o w er to p revent his exercising his su pervisory authority for the purpose of reso lv in g inter-agency disputes See discussion in Feb 2 1 , 1977, M em orandum O pinion fo r the A ttorney G en eral on “ Inspector G eneral L eg islatio n ,” 1 Op. O L C 16 (1977) Sim ilarly, C ongress m ay n ot, consistent with A rticle III o f the C onstitu tio n , d irect federal courts to ^ d ju d ic a te controversies w hich do not m eet constitutional standards of ju sticia b ility See Muskrat v United States, 219 U .S . 3 4 6 (1 9 1 1 ). I f both the C ouncil and the agency alleg ed to have violated the Act are w ithin the Executive B ranch, then the P resident has both th e pow er an d the duty to resolve any dispute between th em as to w hether a violation o f the A ct h as o cc u rre d To provide instead that the ju d ic ia ry should resolve the d isp u te w ould g o against the established p rinciple o f federal ju risd ictio n that a person c a n n o t create a ju sticia b le controversy against him self, and itself raise a separation o f pow ers issue. T h e co u rts might w ell question w hether, in light o f th e P resident’s overall authority over both agencies, sufficient ad v e rsan n e ss exists in such a situation. C f South Spring Hill Gold Mining Co. v Amador Medean G old Mining C o., 145 U .S . 300 (1892). They m ight also conclude th at legal disputes between Executive B ranch agencies are m ore properly for the P resident to resolve as p a rt o f his constitutional du ty to “ take C are that the Law s be faithfully ex ecu ted .” A rt II, § 3. See M em orandum O pinion for the A cting A ssistant A ttorney G en eral, Tax D ivision, A pril 2 2 , 1977, 1 O p. O L C . 7 9 , 83 (1977) (dispute between Internal R evenue S ervice and Postal S ervice not ju sticia b le). Compare UnitedStates v Nixon, 418 U S . 683 (1974) an d United States v. ICC, 337 U .S . 4 2 6 (1949). In this ca se it is un lik ely that the C o u n c il’s enforcem ent o f one o f its agreem ents w ith another federal agency w ould be regarded as an action taken o n b e h a lf o f a private p a rty or p arties, so as to satisfy the requirem ents o f ju sticia b ility suggested by the holding of U nited States v. ICC. 12 We express n o view s as to w hether the C o u n c il’s legal staff m ay be authorized by the A ct to bring suit against independent regulatory c o m m issio n s such as th e Federal Trade C om m ission w h o se m em bers d o not serve at the pleasure of th e P resident, or to represent the p o sitio n of the U nited States in co u rt in connection w ith a violation o f the A ct w here the Ju stice D ep artm en t is unw illing or for som e reaso n unable to d o so. N either o f these authorities w ould in any event be in c o n sisten t with C o u n cil m em bers’ being subject to the President's rem oval pow er 188 must be strictly and narrowly construed. See Myers v. United States at 161, 164. Therefore Congress may constitutionally restrict the President’s removal power only if the officer serves on an “ independent” body whose tasks are primarily quasi-legislative or quasi-judicial, and which tasks “ require absolute freedom from Executive interference.” Wiener v. United States, 357 U.S. 349, 353 (1958). See Humphrey’s Executor v. United States, 295 U.S. 602 (1935). If an agency’s primary functions are “ purely executive,” the President’s power to remove its members must under the Constitution be unfettered. Id. at 631-32.13 As discussed in the preceding section, the Council is structured in such a way as to make it administratively “ independent” within the Executive Branch. In particular, we have noted the statutory provisions which purport to prohibit its being required to channel its reports to Congress through the Executive Office of the President. None of its structural features is, however, necessarily incompati­ ble or inconsistent with its also being ultimately subject to the authority and supervision of the President himself. More importantly, as the Court noted in Wiener, “ the most reliable factor for drawing an inference regarding the Presi­ dent’s power of removal . . . is the nature of the function that Congress vested in the [Council].” 357 U.S. at 353. An examination of the Council’s functions leaves no doubt that they are primarily executive in nature. The Council’s advisory and reviewing roles under §§ 106 and 202 of the Act suggest the desirability of its maintaining a certain independence of other Executive Branch agencies, but these are “ purely executive” functions which do not require “ absolute freedom from Executive interference” under the standards set forth in Humphrey’s Executor and Wiener.14 While the rulemaking and exemptiongranting authorities arguably conferred on the Council by §§ 211 and 214 of the Act are closer to the quasi-legislative or quasi-adjudicative functions which may constitutionally be insulated from the threat of removal, these are not its primary tasks. Finally, even if one assumes some limited authority in the Council to litigate in the name of the United States, this is the prototype of a “ purely executive” function.15 In sum, the primary functions of the Council, as interpreted in light of the relevant constitutional principles, are not such as to permit its members’ insula­ 13 In Humphrey's Executor the C o u rt ruled that m em bers of the Federal Trade C om m ission needed secu rity against m id-term rem oval in order to “ exercise [their] jud g m en t w ithout the leave o r hindrance o f an y o th er official or any departm ent o f the governm ent ” 295 U S . at 6 2 5 -2 6 Specifically, its quasi-legislative an d q u asi-judicial functions required that it be free of executive control. See 295 U .S at 628. Sim ilarly, in Wiener, the ad judicative functions o f the War C laim s C om m ission w ere held to require freedom from “ control o r coercive in flu en ce” by the Executive. 357 U S at 355, quoting from 295 U .S at 629. 14 In the context of exam ining the nature o f the functions of another advisory body created to ad v ise an E xecutive Branch D epartm ent, the D istrict C ourt for the D istrict of M assachusetts recently recognized that g iv in g advice and m aking recom m endations “ fall into the category of ‘purely executive Martin v Reagan, 525 F S u p p 110, 1 13 (D . M ass. 1981) (N ational Institute o f Justice A dvisory Board) See also Patino v Reagan, C ivil N o . S - 8 1 -4 6 9 M LS (E .D C al S ept 29, 1981). T hose cases involved removal by the President o f his appointees to ad v iso ry boards w hich advised the National Institute of Justice (N IJ) The N IJ, as the C ouncil here, has been expressly endow ed by C ongress w ith a m easure o f independence from the A ttorney G eneral in its day-to-day decisio n m ak in g : its director, however, serves at the pleasure of the President 15 We doubt that C ongress could constitutionally authorize the C o u n cil’s legal staff to sue other Executive B ranch agencies if those agencies w ere, like the C ouncil, subject to direction and supervision by the P resident. See note 11, supra 189 tion from the President’s authority and control. We will not, therefore, infer from Congress’ silence on the matter that it intended to impose any restrictions on his power to remove his appointees to the Council whenever he wishes to do so, and for whatever reason he chooses. T h eo d o r e B. O lson Assistant Attorney General Office of Legal Counsel 190

Write a legal research memo on the following topic.

Propriety of Asserting a Governmental Privilege in Response to a Court Order B oth the com m on law governm ental p n v ileg e and the constitutionally based executive privilege may be asserted to p rotect certain docum ents reflecting the deliberation of close presidential advisers from d isclosure in response to a court order. October 13, 1982 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT You have requested the advice of the Office of Legal Counsel (OLC) con­ cerning the propriety of asserting a governmental privilege in response to a court order that purports to require the production of certain White House staff documents and presidential Military Manpower Task Force documents. In re­ sponse to your request, OLC has reviewed the relevant documents and has carefully evaluated your claim o f governmental privilege. Based upon this review, OLC has concluded, for reasons set forth more fully below, that the documents identified are properly subject to a claim of governmental privilege and that the privilege may properly be asserted with respect to those documents. The court order in question was issued in a case involving a prosecution for failure to register for the draft. U nited States v. Wayte, Crim. No. 82-630 (C.D. Cal.). In that case, defendant has alleged that his indictment was based upon impermissible selective prosecution. After ruling that defendant had established a prim a fa cie case of selective prosecution, District Court Judge Terry J. Hatter, Jr., ordered a full hearing on that issue and required the government to produce certain documents and witnesses. In an order issued from the bench, the court ordered production of documents from the files of the White House, the Presi­ dent’s Military Manpower Task Force (MMTF), the Department of Defense, Selective Service, and the Department of Justice. As initially articulated on October 1, 1982, the court order required production of “general policy state­ ments dealing with the prosecution of nonregistrants, including transcripts of meetings at which such policy was discussed.” A second statement by the court, which purported to be a clarification of the initial order, seems to require the production of “everything dealing with the active and passive [nonregistration] enforcement systems.” In response to the court’s order, members of your staff assembled the relevant documents from the files of both the MMTF and the White House itself. Upon review of these documents, the White House has determined 564 that a number of the documents are within the scope of the deliberative process privilege. You have requested OLC to review that privilege claim. The documents that have be§n assembled and for which a claim of privilege is under consideration generally reflect the deliberations of close presidential advisers concerning the policies to be implemented with respect to selective service registration. Most of the documents relate to the MMTF, a special advisory group established by the President to make recommendations con­ cerning the manpower needs of the Nation’s military forces, including the possible need for and implementation of a selective service registration system.* These MMTF documents include reports, agendas, and verbatim transcripts of various meetings and deliberations of the MMTF. The MMTF documents also include several drafts and a final copy of the report of the MMTF to the President which sets forth a number of recommendations concerning military manpower policy. In addition to the MMTF documents, the documents include memoranda and notes that reflect pre-decisional discussions among presidential advisers concerning various aspects of selective service policy. After a careful review of these documents, we have concluded that they are protected by the common-law governmental privilege and the constitutionally based executive privilege for documents reflecting the deliberative process. There is no doubt that the Executive enjoys a privilege for intra-agency memo­ randa and documents that reflect the deliberative decisionmaking process. United States v. Nixon, 418 U.S. 683 (1974); Kaiser Aluminum & Chemical Corp. v. United States, J57 F. Supp. 939 (Ct. Cl. 1958) (Reed, J.). The Supreme Court has stated that the “privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.” United States v. Nixon, 418 U.S. at 708 (footnote omitted). There are two principal grounds for this deliberative process privilege. The first ground is the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for ap­ pearances and for their own interests to the detriment of the decision-making process. United States v. Nixon, 418 U.S. at 705 (footnote omitted). The second ground is that pre-decisional analyses or memoranda do not necessarily reflect the basis for the ultimate decision of the agency. As one court recently stated, “[d]ocuments which are protected by the privilege are those which would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal position.” Coastal States Gas Corp. v. DOE, 617 F.2d 854, 866 (D.C. Cir. 1980). ♦The MMTF was chaired by the Secretary of Defense and included, among others, the Counsellor to the President, the Chairman of the Council of Economic Advisers, and the Director of OMB 565 The attached documents seem clearly to fall within the deliberative process privilege outlined above. All of the documents relate to pre-decisional discus­ sions concerning possible implementation of selective service registration. The documents reflect consideration of a wide range of alternatives and possible policy directions. Even the M MTF’s final report to the President is simply a recommendation to the President concerning proposed military manpower pol­ icy; it is not a final decision itself. The policies that underlie the deliberative process privilege would be impaired by release of these documents. Frank and open discussion would certainly be inhibited if presidential advisers knew that transcripts or other descriptions o f their deliberative meetings would be released to the public. Moreover, none of the specified documents reflect the final decisions made by the Executive Branch on any of the issues discussed therein. For these reasons, we have concluded that these documents are within the scope of the deliberative process privilege. In evaluating the possible release of privileged documents for use in a court proceeding, however, it is necessary to consider not only the basis for the privilege, but also the need for the documents in the court proceeding. See United States v. N ixon, 418 U.S. 683 (1974). In this case, based upon our review of the specified documents, we have concluded that the documents are of little rele­ vance to the court’s consideration of defendant’s selective prosecution claim. For the most part, these documents reflect general considerations concerning se­ lective service policy. To the extent that they touch upon selective service prosecution at all, the documents are general and descriptive; they set forth no government policies concerning how selective service violators should be pros­ ecuted. When the limited relevance of these documents is weighed against the clear applicability of the deliberative process privilege, the balance tips heavily in favor of nondisclosure. In conclusion, it is the opinion of this Office that the specified documents are well within the scope of the deliberative process privilege and that that privilege may be asserted in the Government’s response to the court order in the instant case. T heodore B. O lson Assistant Attorney General Office c f Legal Counsel 566

Write a legal research memo on the following topic.

Fourth Amemdmnieinit Issues Raised by Chemical Weapons T he inspection regime to be created by the Convention on the Prohibition of the Development, Produc­ tion, Stockpiling and Use of Chemical Weapons and on Their Destruction and by the proposed Chemical W eapons Implementation Act, under which inspections o f facilities that produce certain chem icals would occur, absent exigent circumstances, only after the United States Government obtained the consent o f the owner o r operator o f the facility, an administrative warrant, or a crimi­ nal search warrant, is consistent with the Fourth Amendment to the Constitution. September 10, 1996 Statem ent B e f o r e the C o n s t it u t io n , F e d e r a l is m , S u b c o m m it t e e and S en a te C o m m it t e e on the P r o p e r t y R ig h t s on the o f th e J u d ic ia r y I appreciate being given the opportunity to address this Subcommittee on the Fourth Amendment Issues raised by both the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (the “ Convention” or “ CWC” ) and the Chemical Weapons Implementation Act (the “ Act” ) currently before Congress. The Senate, with respect to the Convention, and the Congress, with respect to the Act, now have the opportunity to contribute to the world-wide effort to elimi­ nate the scourge of chemical weapons. Ratification of the Convention and passage of the Act also will represent positive steps towards the goal of reducing the threat posed by terrorists, a goal shared by the President and the Congress. Before I discuss specific aspects of the inspection regime established under the Convention and the Act, and the application of the Fourth Amendment thereto, I think it is important to remind the Subcommittee that the commitment to achieving a global ban on chemical weapons, and to doing so within our constitutional framework, has been a bipartisan one. Negotiations on the Convention commenced during the Administration of President Reagan; the Convention was signed under Presi­ dent Bush. President Clinton is fully pledged to ratification of the Convention and enactment of the implementing legislation. We have reviewed this Convention and this Act and have concluded that the inspection regime they would create will not compromise the guarantees of the Fourth Amendment. The right of the people to be free from unreasonable searches and seizures, as much as any specific provision of the Constitution, represents a check on the power of government. At the same time, the Fourth Amendment stands as a solemn declaration of the right to conduct one’s affairs in private. Over eighty years ago, the Supreme Court observed that the duty of giving force and effect to the Fourth Amendment “ is obligatory upon all entrusted under our Federal system with the enforcement of the laws.” Weeks v. United States, 232 310 Fourth Amendment Issues Raised by Chemical Weapons Inspection Regime U.S. 383, 392 (1914). This Administration, the Department of Justice, and I have an abiding conviction in this principle. Both the Convention and the Act have been painstakingly drafted to put in place an effective, verifiable ban on the development, acquisition, and use of chemical weapons. But none of their provisions in any way contemplates or per­ mits conduct in contravention of the Fourth Amendment. Indeed, the inspection provisions were drafted to be fully consonant with the dictates of search and sei­ zure law. To ensure compliance with the CWC prohibitions and requirements, the Con­ vention and its implementing legislation would permit two types of verification inspections: routine (which will apply to three Schedules of chemicals) and chal­ lenge. I will address each type of inspection in turn. Routine Inspections. All facilities, both public and private, that are “ declared” as producing scheduled chemicals as set forth under the CWC would be subject to routine inspections. The Technical Secretariat of the CWC’s Organization for the Prohibition of Chemical Weapons (“ OPCW” ) would select such facilities for inspection based on neutral and objective criteria. The purpose of the routine in­ spection is strictly limited: to determine the accuracy of declarations and to deter­ mine whether activities are in accordance with CWC obligations. Other than those facilities that produce the very restricted amounts of chemicals set forth under Schedule 1, no declared facility would be subject to routine inspection more than twice a year. As an initial matter, the Administration anticipates that most inspections — rou­ tine and challenge — will be conducted with the consent of the owner or operator of the facility at issue. It is important to keep in mind that the chemical manufac­ turing industry itself strongly supports the ratification and implementation of the CWC and its verification inspection scheme. Where available, the specifics of these inspections will be dictated by facility agreements entered into between the U.S. Government and the OPCW. If consent were to be denied, however, absent exigent circumstances, the U.S. Government would seek an administrative warrant to inspect a specific facility. This inspection scheme is fully consistent with Fourth Amendment principles. The Fourth Amendment requires that “ subject only to a few specifically estab­ lished and well-delineated exceptions,” K atz v. United States, 389 U.S. 347, 357 (1967), searches and seizures conducted in the absence of “ a judicial warrant issued upon probable cause and particularly describing the items to be seized” are per se unreasonable. United States v. Place, 462 U.S. 696, 701 (1983). The Fourth Amendment’s warrant and probable cause requirements do not apply to a particular search, however, when the party to be searched provides consent. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). I thus would emphasize that the warrant provisions under the CWC and its implementing legislation would 311 Opinions o f the Office o f Legal Counsel in Volume 20 apply only to the small minority of inspections as to which consent might be withheld. The Fourth Amendment’s prohibition on unreasonable searches and seizures ap­ plies to administrative searches of private commercial property. See See v. City o f Seattle, 387 U.S. 541, 543-44 (1967). The expectation of privacy in commercial premises, however, is less than the similar expectation in one’s home. See id. at 545-46. For purposes of an administrative search, “ probable cause justifying the issuance of a warrant may be based not only on specific evidence of an exist­ ing violation but also on a showing that ‘reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a par­ ticular [establishment].’ ” M arshall v. B arlow ’s, Inc., 436 U.S. 307, 320 (1978) (footnote omitted) (quoting Cam ara v. M unicipal Court, 387 U.S. 523, 538 (1967)). With respect to closely regulated industries, the Supreme Court has held that “ [t]his expectation is particularly attenuated.” N ew York v. Burger, 482 U.S. 691,700(1987). In part due to the extensive environmental, health, and safety issues inherent in its activities, the chemical manufacturing industry is already subject to pervasive governmental regulation. The Resource Conservation and Recovery Act, the Toxic Substance Control Act, the Clean Air Act, and the Clean Water Act, to a greater or lesser degree, apply to most of the U.S. facilities that will be declared under the CWC. Through ratification of the CWC and enactment of its implementing legislation, the chemical manufacturing industry similarly would be subject to their regulatory scheme. To ensure compliance with its terms, the CWC and the Act provide for “ ‘reasonable legislative or administrative standards for conducting an . . . inspection.’ ” Barlow’s, 436 U.S. at 320 (quoting Camara v. Municipal Court, 387 U.S. at 538). All facilities that would be subject to routine searches under the CWC are part of this industry, and would be declared under the CWC and thus on notice that routine inspections would take place. For these facilities, there would be sufficient basis for obtaining administrative search warrants to con­ duct verification inspections where consent is denied. In those cases, a warrant would be sought prior to initiation of an inspection, in the absence of exigent circumstances. Challenge Inspections. The second type of inspections are the challenge inspec­ tions. If a State Party makes a specific allegation of non-compliance, it may re­ quest that the suspect facility be made subject to a challenge inspection, whether or not that facility was declared. Declared facilities selected for a challenge inspection would be subject to in­ spections in the same manner as provided under the CWC and the Act for routine inspections: pursuant to either consent or an administrative search warrant. Facili­ ties that are undeclared, however, likely would not fall within the closely regulated industry of chemical manufacturing. Therefore, the government may not be able to obtain administrative search warrants to conduct such inspections. Instead, for 312 Fourth Amendment Issues R aised by Chemical Weapons Inspection Regime the small number of undeclared facilities where consent to inspect is denied, and where an administrative warrant is unobtainable, the Fourth Amendment, in the absence of exigent circumstances, may require that a criminal search warrant be secured. This warrant would be based on probable cause to believe that a violation of the Act or Convention has been or is being committed. In certain instances, insufficient evidence may exist to establish criminal prob­ able cause within the meaning of the Fourth Amendment. Thus, a search warrant would be unobtainable. The CWC anticipates this possibility and would not force a choice between compliance with its terms, and adherence to our constitutional principles. Rather, the Convention specifically allows the U.S. Government, in granting access to facilities identified for challenge inspections, to “ tak[e] into account any constitutional obligations it may have with regard to proprietary rights or searches and seizures.” See Verification Annex of the CWC, pt. X, para. C.41. Hence, in the rare event that the Fourth Amendment would pose a bar to a search of premises identified for a challenge inspection and the inspection could not go forward, the United States would remain in full compliance with its obligations under the CWC. Issuance o f Warrants. Next, I would like to discuss specifically how warrants would be issued under the Act. Once the Lead Agency representing the U.S. Gov­ ernment provides sufficient information to support a finding of administrative probable cause, the Act directs the authorized official to issue promptly a search warrant authorizing the requested routine or challenge inspection. To demonstrate probable cause for an administrative warrant, the government must submit an affi­ davit stating that the CWC is in force for the United States; the facility to be inspected is subject to the specific type of inspection requested by the OPCW; the procedures established under the CWC and the Act for initiating the inspection have been complied with; and the Government will undertake to ensure that the inspection is conducted in a reasonable manner, not to exceed the scope or dura­ tion set forth in, or authorized by, the CWC and the Act. In turn, the administrative warrant must specify the type of inspection authorized and its purpose; the type of facility to be inspected and its location; the items, documents, and areas that may be inspected; the commencement and concluding dates and times of the in­ spection; and the identities of the representative of the Technical Secretariat of the OPCW, and of the representatives of the Lead Agency. Additional Protections. The inspection regime set forth in the Act contains a number of provisions designed to protect individual rights. Written notice must be provided to the owner and to the operator, occupant, or agent (“ operator” ) in charge of the premises to be inspected. The notice must be submitted to the owner or operator as soon as possible after the U.S. Government receives it from the Technical Secretariat. The notice must include all appropriate information sup­ plied by the Technical Secretariat regarding the basis for the selection of the facil­ ity. For challenge inspections, this notice will specify the nature and circumstances 313 Opinions o f the Office o f Legal Counsel in Volume 20 of the alleged non-compliance, as well as all appropriate information serving as the basis for the challenge. In addition, the Act provides that if an owner or operator of the premises is present, a member of the inspection team and the U.S. Government representative must present appropriate credentials. Consistent with the time frames set forth in the CWC, each inspection must commence and be completed promptly. The time, scope, and manner of the inspection must be reasonable. To the extent pos­ sible consistent with the CWC, no inspection may extend to financial, sales and marketing (other than shipment), pricing, personnel, research, or patent data, or data maintained for compliance with environmental or occupational health and safety regulations. Under the CWC and the Act, facility agreements must be concluded for all Schedule 1 facilities, and for Schedule 2 facilities, unless the owner or operator of the premises and the Technical Secretariat concur that such an agreement is unnecessary. The owners or operators of Schedule 3 facilities and other chemical production facilities subject to inspection under the CWC have the option of re­ questing a facility agreement if they so desire. The Act provides that, if a request is made, the U.S. Government should negotiate and conclude a facility agreement. The owner or operator shall have the right, to the extent practicable consistent with the obligations of the United States under the CWC, to participate in the preparation for, and observe the negotiation of, this agreement. If the U.S. Government has signed a facility agreement with the OPCW gov­ erning a particular facility, any routine inspection of that facility must be con­ ducted in accordance with such agreement. Because these agreements will estab­ lish detailed procedures that will control the conduct of inspections of affected facilities, the agreements will encourage owners and operators to consent to an inspection and grant access to their facilities. In my opinion the Chemical Weapons Convention and the Implementation Act reflect a supreme effort and an extraordinary accomplishment. A measurable step has been taken to make the world a safer place in which to live and, at the same time, the principles set forth in the Fourth Amendment of the U.S. Constitution have been scrupulously observed. I would thus urge the Senate to consent to ratifi­ cation of the Convention and Congressional passage of the Act. RICHARD L. SHIFFRIN D eputy Assistant Attorney General Office o f Legal Counsel 314

Write a legal research memo on the following topic.

Fourth Amemdmnieinit Issues Raised by Chemical Weapons T he inspection regime to be created by the Convention on the Prohibition of the Development, Produc­ tion, Stockpiling and Use of Chemical Weapons and on Their Destruction and by the proposed Chemical W eapons Implementation Act, under which inspections o f facilities that produce certain chem icals would occur, absent exigent circumstances, only after the United States Government obtained the consent o f the owner o r operator o f the facility, an administrative warrant, or a crimi­ nal search warrant, is consistent with the Fourth Amendment to the Constitution. September 10, 1996 Statem ent B e f o r e the C o n s t it u t io n , F e d e r a l is m , S u b c o m m it t e e and S en a te C o m m it t e e on the P r o p e r t y R ig h t s on the o f th e J u d ic ia r y I appreciate being given the opportunity to address this Subcommittee on the Fourth Amendment Issues raised by both the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (the “ Convention” or “ CWC” ) and the Chemical Weapons Implementation Act (the “ Act” ) currently before Congress. The Senate, with respect to the Convention, and the Congress, with respect to the Act, now have the opportunity to contribute to the world-wide effort to elimi­ nate the scourge of chemical weapons. Ratification of the Convention and passage of the Act also will represent positive steps towards the goal of reducing the threat posed by terrorists, a goal shared by the President and the Congress. Before I discuss specific aspects of the inspection regime established under the Convention and the Act, and the application of the Fourth Amendment thereto, I think it is important to remind the Subcommittee that the commitment to achieving a global ban on chemical weapons, and to doing so within our constitutional framework, has been a bipartisan one. Negotiations on the Convention commenced during the Administration of President Reagan; the Convention was signed under Presi­ dent Bush. President Clinton is fully pledged to ratification of the Convention and enactment of the implementing legislation. We have reviewed this Convention and this Act and have concluded that the inspection regime they would create will not compromise the guarantees of the Fourth Amendment. The right of the people to be free from unreasonable searches and seizures, as much as any specific provision of the Constitution, represents a check on the power of government. At the same time, the Fourth Amendment stands as a solemn declaration of the right to conduct one’s affairs in private. Over eighty years ago, the Supreme Court observed that the duty of giving force and effect to the Fourth Amendment “ is obligatory upon all entrusted under our Federal system with the enforcement of the laws.” Weeks v. United States, 232 310 Fourth Amendment Issues Raised by Chemical Weapons Inspection Regime U.S. 383, 392 (1914). This Administration, the Department of Justice, and I have an abiding conviction in this principle. Both the Convention and the Act have been painstakingly drafted to put in place an effective, verifiable ban on the development, acquisition, and use of chemical weapons. But none of their provisions in any way contemplates or per­ mits conduct in contravention of the Fourth Amendment. Indeed, the inspection provisions were drafted to be fully consonant with the dictates of search and sei­ zure law. To ensure compliance with the CWC prohibitions and requirements, the Con­ vention and its implementing legislation would permit two types of verification inspections: routine (which will apply to three Schedules of chemicals) and chal­ lenge. I will address each type of inspection in turn. Routine Inspections. All facilities, both public and private, that are “ declared” as producing scheduled chemicals as set forth under the CWC would be subject to routine inspections. The Technical Secretariat of the CWC’s Organization for the Prohibition of Chemical Weapons (“ OPCW” ) would select such facilities for inspection based on neutral and objective criteria. The purpose of the routine in­ spection is strictly limited: to determine the accuracy of declarations and to deter­ mine whether activities are in accordance with CWC obligations. Other than those facilities that produce the very restricted amounts of chemicals set forth under Schedule 1, no declared facility would be subject to routine inspection more than twice a year. As an initial matter, the Administration anticipates that most inspections — rou­ tine and challenge — will be conducted with the consent of the owner or operator of the facility at issue. It is important to keep in mind that the chemical manufac­ turing industry itself strongly supports the ratification and implementation of the CWC and its verification inspection scheme. Where available, the specifics of these inspections will be dictated by facility agreements entered into between the U.S. Government and the OPCW. If consent were to be denied, however, absent exigent circumstances, the U.S. Government would seek an administrative warrant to inspect a specific facility. This inspection scheme is fully consistent with Fourth Amendment principles. The Fourth Amendment requires that “ subject only to a few specifically estab­ lished and well-delineated exceptions,” K atz v. United States, 389 U.S. 347, 357 (1967), searches and seizures conducted in the absence of “ a judicial warrant issued upon probable cause and particularly describing the items to be seized” are per se unreasonable. United States v. Place, 462 U.S. 696, 701 (1983). The Fourth Amendment’s warrant and probable cause requirements do not apply to a particular search, however, when the party to be searched provides consent. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). I thus would emphasize that the warrant provisions under the CWC and its implementing legislation would 311 Opinions o f the Office o f Legal Counsel in Volume 20 apply only to the small minority of inspections as to which consent might be withheld. The Fourth Amendment’s prohibition on unreasonable searches and seizures ap­ plies to administrative searches of private commercial property. See See v. City o f Seattle, 387 U.S. 541, 543-44 (1967). The expectation of privacy in commercial premises, however, is less than the similar expectation in one’s home. See id. at 545-46. For purposes of an administrative search, “ probable cause justifying the issuance of a warrant may be based not only on specific evidence of an exist­ ing violation but also on a showing that ‘reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a par­ ticular [establishment].’ ” M arshall v. B arlow ’s, Inc., 436 U.S. 307, 320 (1978) (footnote omitted) (quoting Cam ara v. M unicipal Court, 387 U.S. 523, 538 (1967)). With respect to closely regulated industries, the Supreme Court has held that “ [t]his expectation is particularly attenuated.” N ew York v. Burger, 482 U.S. 691,700(1987). In part due to the extensive environmental, health, and safety issues inherent in its activities, the chemical manufacturing industry is already subject to pervasive governmental regulation. The Resource Conservation and Recovery Act, the Toxic Substance Control Act, the Clean Air Act, and the Clean Water Act, to a greater or lesser degree, apply to most of the U.S. facilities that will be declared under the CWC. Through ratification of the CWC and enactment of its implementing legislation, the chemical manufacturing industry similarly would be subject to their regulatory scheme. To ensure compliance with its terms, the CWC and the Act provide for “ ‘reasonable legislative or administrative standards for conducting an . . . inspection.’ ” Barlow’s, 436 U.S. at 320 (quoting Camara v. Municipal Court, 387 U.S. at 538). All facilities that would be subject to routine searches under the CWC are part of this industry, and would be declared under the CWC and thus on notice that routine inspections would take place. For these facilities, there would be sufficient basis for obtaining administrative search warrants to con­ duct verification inspections where consent is denied. In those cases, a warrant would be sought prior to initiation of an inspection, in the absence of exigent circumstances. Challenge Inspections. The second type of inspections are the challenge inspec­ tions. If a State Party makes a specific allegation of non-compliance, it may re­ quest that the suspect facility be made subject to a challenge inspection, whether or not that facility was declared. Declared facilities selected for a challenge inspection would be subject to in­ spections in the same manner as provided under the CWC and the Act for routine inspections: pursuant to either consent or an administrative search warrant. Facili­ ties that are undeclared, however, likely would not fall within the closely regulated industry of chemical manufacturing. Therefore, the government may not be able to obtain administrative search warrants to conduct such inspections. Instead, for 312 Fourth Amendment Issues R aised by Chemical Weapons Inspection Regime the small number of undeclared facilities where consent to inspect is denied, and where an administrative warrant is unobtainable, the Fourth Amendment, in the absence of exigent circumstances, may require that a criminal search warrant be secured. This warrant would be based on probable cause to believe that a violation of the Act or Convention has been or is being committed. In certain instances, insufficient evidence may exist to establish criminal prob­ able cause within the meaning of the Fourth Amendment. Thus, a search warrant would be unobtainable. The CWC anticipates this possibility and would not force a choice between compliance with its terms, and adherence to our constitutional principles. Rather, the Convention specifically allows the U.S. Government, in granting access to facilities identified for challenge inspections, to “ tak[e] into account any constitutional obligations it may have with regard to proprietary rights or searches and seizures.” See Verification Annex of the CWC, pt. X, para. C.41. Hence, in the rare event that the Fourth Amendment would pose a bar to a search of premises identified for a challenge inspection and the inspection could not go forward, the United States would remain in full compliance with its obligations under the CWC. Issuance o f Warrants. Next, I would like to discuss specifically how warrants would be issued under the Act. Once the Lead Agency representing the U.S. Gov­ ernment provides sufficient information to support a finding of administrative probable cause, the Act directs the authorized official to issue promptly a search warrant authorizing the requested routine or challenge inspection. To demonstrate probable cause for an administrative warrant, the government must submit an affi­ davit stating that the CWC is in force for the United States; the facility to be inspected is subject to the specific type of inspection requested by the OPCW; the procedures established under the CWC and the Act for initiating the inspection have been complied with; and the Government will undertake to ensure that the inspection is conducted in a reasonable manner, not to exceed the scope or dura­ tion set forth in, or authorized by, the CWC and the Act. In turn, the administrative warrant must specify the type of inspection authorized and its purpose; the type of facility to be inspected and its location; the items, documents, and areas that may be inspected; the commencement and concluding dates and times of the in­ spection; and the identities of the representative of the Technical Secretariat of the OPCW, and of the representatives of the Lead Agency. Additional Protections. The inspection regime set forth in the Act contains a number of provisions designed to protect individual rights. Written notice must be provided to the owner and to the operator, occupant, or agent (“ operator” ) in charge of the premises to be inspected. The notice must be submitted to the owner or operator as soon as possible after the U.S. Government receives it from the Technical Secretariat. The notice must include all appropriate information sup­ plied by the Technical Secretariat regarding the basis for the selection of the facil­ ity. For challenge inspections, this notice will specify the nature and circumstances 313 Opinions o f the Office o f Legal Counsel in Volume 20 of the alleged non-compliance, as well as all appropriate information serving as the basis for the challenge. In addition, the Act provides that if an owner or operator of the premises is present, a member of the inspection team and the U.S. Government representative must present appropriate credentials. Consistent with the time frames set forth in the CWC, each inspection must commence and be completed promptly. The time, scope, and manner of the inspection must be reasonable. To the extent pos­ sible consistent with the CWC, no inspection may extend to financial, sales and marketing (other than shipment), pricing, personnel, research, or patent data, or data maintained for compliance with environmental or occupational health and safety regulations. Under the CWC and the Act, facility agreements must be concluded for all Schedule 1 facilities, and for Schedule 2 facilities, unless the owner or operator of the premises and the Technical Secretariat concur that such an agreement is unnecessary. The owners or operators of Schedule 3 facilities and other chemical production facilities subject to inspection under the CWC have the option of re­ questing a facility agreement if they so desire. The Act provides that, if a request is made, the U.S. Government should negotiate and conclude a facility agreement. The owner or operator shall have the right, to the extent practicable consistent with the obligations of the United States under the CWC, to participate in the preparation for, and observe the negotiation of, this agreement. If the U.S. Government has signed a facility agreement with the OPCW gov­ erning a particular facility, any routine inspection of that facility must be con­ ducted in accordance with such agreement. Because these agreements will estab­ lish detailed procedures that will control the conduct of inspections of affected facilities, the agreements will encourage owners and operators to consent to an inspection and grant access to their facilities. In my opinion the Chemical Weapons Convention and the Implementation Act reflect a supreme effort and an extraordinary accomplishment. A measurable step has been taken to make the world a safer place in which to live and, at the same time, the principles set forth in the Fourth Amendment of the U.S. Constitution have been scrupulously observed. I would thus urge the Senate to consent to ratifi­ cation of the Convention and Congressional passage of the Act. RICHARD L. SHIFFRIN D eputy Assistant Attorney General Office o f Legal Counsel 314

Write a legal research memo on the following topic.

Fourth Amemdmnieinit Issues Raised by Chemical Weapons T he inspection regime to be created by the Convention on the Prohibition of the Development, Produc­ tion, Stockpiling and Use of Chemical Weapons and on Their Destruction and by the proposed Chemical W eapons Implementation Act, under which inspections o f facilities that produce certain chem icals would occur, absent exigent circumstances, only after the United States Government obtained the consent o f the owner o r operator o f the facility, an administrative warrant, or a crimi­ nal search warrant, is consistent with the Fourth Amendment to the Constitution. September 10, 1996 Statem ent B e f o r e the C o n s t it u t io n , F e d e r a l is m , S u b c o m m it t e e and S en a te C o m m it t e e on the P r o p e r t y R ig h t s on the o f th e J u d ic ia r y I appreciate being given the opportunity to address this Subcommittee on the Fourth Amendment Issues raised by both the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (the “ Convention” or “ CWC” ) and the Chemical Weapons Implementation Act (the “ Act” ) currently before Congress. The Senate, with respect to the Convention, and the Congress, with respect to the Act, now have the opportunity to contribute to the world-wide effort to elimi­ nate the scourge of chemical weapons. Ratification of the Convention and passage of the Act also will represent positive steps towards the goal of reducing the threat posed by terrorists, a goal shared by the President and the Congress. Before I discuss specific aspects of the inspection regime established under the Convention and the Act, and the application of the Fourth Amendment thereto, I think it is important to remind the Subcommittee that the commitment to achieving a global ban on chemical weapons, and to doing so within our constitutional framework, has been a bipartisan one. Negotiations on the Convention commenced during the Administration of President Reagan; the Convention was signed under Presi­ dent Bush. President Clinton is fully pledged to ratification of the Convention and enactment of the implementing legislation. We have reviewed this Convention and this Act and have concluded that the inspection regime they would create will not compromise the guarantees of the Fourth Amendment. The right of the people to be free from unreasonable searches and seizures, as much as any specific provision of the Constitution, represents a check on the power of government. At the same time, the Fourth Amendment stands as a solemn declaration of the right to conduct one’s affairs in private. Over eighty years ago, the Supreme Court observed that the duty of giving force and effect to the Fourth Amendment “ is obligatory upon all entrusted under our Federal system with the enforcement of the laws.” Weeks v. United States, 232 310 Fourth Amendment Issues Raised by Chemical Weapons Inspection Regime U.S. 383, 392 (1914). This Administration, the Department of Justice, and I have an abiding conviction in this principle. Both the Convention and the Act have been painstakingly drafted to put in place an effective, verifiable ban on the development, acquisition, and use of chemical weapons. But none of their provisions in any way contemplates or per­ mits conduct in contravention of the Fourth Amendment. Indeed, the inspection provisions were drafted to be fully consonant with the dictates of search and sei­ zure law. To ensure compliance with the CWC prohibitions and requirements, the Con­ vention and its implementing legislation would permit two types of verification inspections: routine (which will apply to three Schedules of chemicals) and chal­ lenge. I will address each type of inspection in turn. Routine Inspections. All facilities, both public and private, that are “ declared” as producing scheduled chemicals as set forth under the CWC would be subject to routine inspections. The Technical Secretariat of the CWC’s Organization for the Prohibition of Chemical Weapons (“ OPCW” ) would select such facilities for inspection based on neutral and objective criteria. The purpose of the routine in­ spection is strictly limited: to determine the accuracy of declarations and to deter­ mine whether activities are in accordance with CWC obligations. Other than those facilities that produce the very restricted amounts of chemicals set forth under Schedule 1, no declared facility would be subject to routine inspection more than twice a year. As an initial matter, the Administration anticipates that most inspections — rou­ tine and challenge — will be conducted with the consent of the owner or operator of the facility at issue. It is important to keep in mind that the chemical manufac­ turing industry itself strongly supports the ratification and implementation of the CWC and its verification inspection scheme. Where available, the specifics of these inspections will be dictated by facility agreements entered into between the U.S. Government and the OPCW. If consent were to be denied, however, absent exigent circumstances, the U.S. Government would seek an administrative warrant to inspect a specific facility. This inspection scheme is fully consistent with Fourth Amendment principles. The Fourth Amendment requires that “ subject only to a few specifically estab­ lished and well-delineated exceptions,” K atz v. United States, 389 U.S. 347, 357 (1967), searches and seizures conducted in the absence of “ a judicial warrant issued upon probable cause and particularly describing the items to be seized” are per se unreasonable. United States v. Place, 462 U.S. 696, 701 (1983). The Fourth Amendment’s warrant and probable cause requirements do not apply to a particular search, however, when the party to be searched provides consent. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). I thus would emphasize that the warrant provisions under the CWC and its implementing legislation would 311 Opinions o f the Office o f Legal Counsel in Volume 20 apply only to the small minority of inspections as to which consent might be withheld. The Fourth Amendment’s prohibition on unreasonable searches and seizures ap­ plies to administrative searches of private commercial property. See See v. City o f Seattle, 387 U.S. 541, 543-44 (1967). The expectation of privacy in commercial premises, however, is less than the similar expectation in one’s home. See id. at 545-46. For purposes of an administrative search, “ probable cause justifying the issuance of a warrant may be based not only on specific evidence of an exist­ ing violation but also on a showing that ‘reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a par­ ticular [establishment].’ ” M arshall v. B arlow ’s, Inc., 436 U.S. 307, 320 (1978) (footnote omitted) (quoting Cam ara v. M unicipal Court, 387 U.S. 523, 538 (1967)). With respect to closely regulated industries, the Supreme Court has held that “ [t]his expectation is particularly attenuated.” N ew York v. Burger, 482 U.S. 691,700(1987). In part due to the extensive environmental, health, and safety issues inherent in its activities, the chemical manufacturing industry is already subject to pervasive governmental regulation. The Resource Conservation and Recovery Act, the Toxic Substance Control Act, the Clean Air Act, and the Clean Water Act, to a greater or lesser degree, apply to most of the U.S. facilities that will be declared under the CWC. Through ratification of the CWC and enactment of its implementing legislation, the chemical manufacturing industry similarly would be subject to their regulatory scheme. To ensure compliance with its terms, the CWC and the Act provide for “ ‘reasonable legislative or administrative standards for conducting an . . . inspection.’ ” Barlow’s, 436 U.S. at 320 (quoting Camara v. Municipal Court, 387 U.S. at 538). All facilities that would be subject to routine searches under the CWC are part of this industry, and would be declared under the CWC and thus on notice that routine inspections would take place. For these facilities, there would be sufficient basis for obtaining administrative search warrants to con­ duct verification inspections where consent is denied. In those cases, a warrant would be sought prior to initiation of an inspection, in the absence of exigent circumstances. Challenge Inspections. The second type of inspections are the challenge inspec­ tions. If a State Party makes a specific allegation of non-compliance, it may re­ quest that the suspect facility be made subject to a challenge inspection, whether or not that facility was declared. Declared facilities selected for a challenge inspection would be subject to in­ spections in the same manner as provided under the CWC and the Act for routine inspections: pursuant to either consent or an administrative search warrant. Facili­ ties that are undeclared, however, likely would not fall within the closely regulated industry of chemical manufacturing. Therefore, the government may not be able to obtain administrative search warrants to conduct such inspections. Instead, for 312 Fourth Amendment Issues R aised by Chemical Weapons Inspection Regime the small number of undeclared facilities where consent to inspect is denied, and where an administrative warrant is unobtainable, the Fourth Amendment, in the absence of exigent circumstances, may require that a criminal search warrant be secured. This warrant would be based on probable cause to believe that a violation of the Act or Convention has been or is being committed. In certain instances, insufficient evidence may exist to establish criminal prob­ able cause within the meaning of the Fourth Amendment. Thus, a search warrant would be unobtainable. The CWC anticipates this possibility and would not force a choice between compliance with its terms, and adherence to our constitutional principles. Rather, the Convention specifically allows the U.S. Government, in granting access to facilities identified for challenge inspections, to “ tak[e] into account any constitutional obligations it may have with regard to proprietary rights or searches and seizures.” See Verification Annex of the CWC, pt. X, para. C.41. Hence, in the rare event that the Fourth Amendment would pose a bar to a search of premises identified for a challenge inspection and the inspection could not go forward, the United States would remain in full compliance with its obligations under the CWC. Issuance o f Warrants. Next, I would like to discuss specifically how warrants would be issued under the Act. Once the Lead Agency representing the U.S. Gov­ ernment provides sufficient information to support a finding of administrative probable cause, the Act directs the authorized official to issue promptly a search warrant authorizing the requested routine or challenge inspection. To demonstrate probable cause for an administrative warrant, the government must submit an affi­ davit stating that the CWC is in force for the United States; the facility to be inspected is subject to the specific type of inspection requested by the OPCW; the procedures established under the CWC and the Act for initiating the inspection have been complied with; and the Government will undertake to ensure that the inspection is conducted in a reasonable manner, not to exceed the scope or dura­ tion set forth in, or authorized by, the CWC and the Act. In turn, the administrative warrant must specify the type of inspection authorized and its purpose; the type of facility to be inspected and its location; the items, documents, and areas that may be inspected; the commencement and concluding dates and times of the in­ spection; and the identities of the representative of the Technical Secretariat of the OPCW, and of the representatives of the Lead Agency. Additional Protections. The inspection regime set forth in the Act contains a number of provisions designed to protect individual rights. Written notice must be provided to the owner and to the operator, occupant, or agent (“ operator” ) in charge of the premises to be inspected. The notice must be submitted to the owner or operator as soon as possible after the U.S. Government receives it from the Technical Secretariat. The notice must include all appropriate information sup­ plied by the Technical Secretariat regarding the basis for the selection of the facil­ ity. For challenge inspections, this notice will specify the nature and circumstances 313 Opinions o f the Office o f Legal Counsel in Volume 20 of the alleged non-compliance, as well as all appropriate information serving as the basis for the challenge. In addition, the Act provides that if an owner or operator of the premises is present, a member of the inspection team and the U.S. Government representative must present appropriate credentials. Consistent with the time frames set forth in the CWC, each inspection must commence and be completed promptly. The time, scope, and manner of the inspection must be reasonable. To the extent pos­ sible consistent with the CWC, no inspection may extend to financial, sales and marketing (other than shipment), pricing, personnel, research, or patent data, or data maintained for compliance with environmental or occupational health and safety regulations. Under the CWC and the Act, facility agreements must be concluded for all Schedule 1 facilities, and for Schedule 2 facilities, unless the owner or operator of the premises and the Technical Secretariat concur that such an agreement is unnecessary. The owners or operators of Schedule 3 facilities and other chemical production facilities subject to inspection under the CWC have the option of re­ questing a facility agreement if they so desire. The Act provides that, if a request is made, the U.S. Government should negotiate and conclude a facility agreement. The owner or operator shall have the right, to the extent practicable consistent with the obligations of the United States under the CWC, to participate in the preparation for, and observe the negotiation of, this agreement. If the U.S. Government has signed a facility agreement with the OPCW gov­ erning a particular facility, any routine inspection of that facility must be con­ ducted in accordance with such agreement. Because these agreements will estab­ lish detailed procedures that will control the conduct of inspections of affected facilities, the agreements will encourage owners and operators to consent to an inspection and grant access to their facilities. In my opinion the Chemical Weapons Convention and the Implementation Act reflect a supreme effort and an extraordinary accomplishment. A measurable step has been taken to make the world a safer place in which to live and, at the same time, the principles set forth in the Fourth Amendment of the U.S. Constitution have been scrupulously observed. I would thus urge the Senate to consent to ratifi­ cation of the Convention and Congressional passage of the Act. RICHARD L. SHIFFRIN D eputy Assistant Attorney General Office o f Legal Counsel 314

Write a legal research memo on the following topic.

EPA Acceptance and Use of Donations Under the Clean Air Act Section 104(b)(4) of the Clean Air Act does not permit the EPA to accept and use donations of money. Section 104(b)(4) of the Clean Air Act permits the EPA to accept items of personal property (other than money), such as an automobile, so long as the property in question would be received for use directly in the anti-pollution research authorized by section 104. December 8, 2009 MEMORANDUM OPINION FOR THE GENERAL COUNSEL ENVIRONMENTAL PROTECTION AGENCY Section 104(b)(4) of the Clean Air Act authorizes the Administrator of the Environmental Protection Agency (“EPA”) to “acquire” various kinds of property by various means, including “donation,” to further research relating to the “prevention and control of air pollution resulting from the combustion of fuels.” 42 U.S.C. § 7404(a), (b)(4) (2006). You have asked whether section 104(b)(4) permits the EPA to accept and use donations of money. For the reasons discussed below in Part I, we conclude that it does not. You have also asked whether section 104(b)(4) permits the EPA to accept items of personal property (other than money), such as an automobile. For the reasons given below in Part II, we conclude that it does, so long as the property in question would be received for use directly in the anti-pollution research authorized by section 104. I. Section 104 of the Clean Air Act is titled “Research relating to fuels and vehicles.” It provides, in relevant part, as follows: (a) Research programs; grants; contracts; pilot and demonstration plants; byproducts research The Administrator shall give special emphasis to research and development into new and improved methods, having industry-wide application, for the prevention and control of air pollution resulting 389 33 Op. O.L.C. 389 (2009) from the combustion of fuels. In furtherance of such research and development he shall— (1) conduct and accelerate research programs directed toward development of improved, cost-effective techniques for— (A) control of combustion byproducts of fuels, (B) removal of potential air pollutants from fuels prior to combustion, (C) control of emissions from the evaporation of fuels, (D) improving the efficiency of fuels combustion so as to decrease atmospheric emissions, and (E) producing synthetic or new fuels which, when used, result in decreased atmospheric emissions. (2) provide for Federal grants to public or nonprofit agencies, institutions, and organizations and to individuals, and contracts with public or private agencies, institutions, or persons . . . . (b) Powers of Administrator in establishing research and development programs In carrying out the provisions of this section, the Administrator may— (1) conduct and accelerate research and development of costeffective instrumentation techniques to facilitate determination of quantity and quality of air pollutant emissions, including, but not limited to, automotive emissions; (2) utilize, on a reimbursable basis, the facilities of existing Federal scientific laboratories; (3) establish and operate necessary facilities and test sites at which to carry on the research, testing, development, and programming necessary to effectuate the purposes of this section; (4) acquire secret processes, technical data, inventions, patent applications, patents, licenses, and an interest in lands, plants, and facilities, and other property or rights by purchase, license, lease, or donation; and (5) cause on-site inspections to be made of promising domestic and foreign projects, and cooperate and participate in their devel- 390 EPA Acceptance and Use of Donations Under the Clean Air Act opment in instances in which the purposes of the chapter will be served thereby. (c) Clean alternative fuels The Administrator shall conduct a research program to identify, characterize, and predict air emissions related to the production, distribution, storage, and use of clean alternative fuels to determine the risks and benefits to human health and the environment relative to those from using conventional gasoline and diesel fuels. The Administrator shall consult with other Federal agencies to ensure coordination and to avoid duplication of activities authorized under this subsection. 42 U.S.C. § 7404 (emphasis added). In your view, “the word ‘property’ when included in a statute that authorizes agencies to accept donations, includes funds, money, or cash unless the statute excludes this form of property from the reach of its gift acceptance authority.” Letter for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Patricia K. Hirsch, Acting General Counsel, Environmental Protection Agency at 2 (Dec. 15, 2008) (“EPA Letter”). You note that this Office has read the phrase “other property” to include money in at least one instance. Id. at 4 (citing Acceptance of Gifts to Be Used in the White House, the Official Residence of the Vice President, or the Offices of the President and Vice President, 2 Op. O.L.C. 349, 352 (1977) (“Acceptance of Gifts to Be Used in the White House”)). Thus, you believe the phrase “other property” in section 104(b)(4) should be understood to include money. In June 2008, the Office of Management and Budget (“OMB”) conveyed to your office a contrary position, based in part on what it contended would be the incongruous consequences that including money within the scope of section 104(b)(4) would have in light of the requirements of the Miscellaneous Receipts Act (“MRA”), 31 U.S.C. § 3302(b) (2006). In response to OMB’s contentions about the MRA, you argue that section 104(b)(4) should be read as establishing an exception to the MRA. EPA Letter at 4–8. We believe money is not included in the “other property” section 104(b)(4) authorizes the EPA to acquire, but in reaching this judgment we do not believe it is necessary to address the MRA. Instead, we reach 391 33 Op. O.L.C. 389 (2009) this conclusion simply by examining the language of section 104(b)(4). When the phrase “other property” in section 104(b)(4) is considered in context, we believe it is clear that Congress did not intend to include money among the forms of property that the EPA can acquire for use in the research program authorized by section 104. While an administrative agency is generally entitled to deference in its interpretation of an ambiguous term in a statute it is charged with administering, “the question whether a statute is ambiguous arises after, not before a court applies traditional canons of interpretation—the most important here being the context in which the word appears.” OfficeMax, Inc. v. United States, 428 F.3d 583, 592 (6th Cir. 2005). As the Supreme Court has explained, “[a]mbiguity is a creature not of definitional possibilities but of statutory context.” Brown v. Gardner, 513 U.S. 115, 118 (1994); see Chevron USA, Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843 n.9 (1984) (in determining whether congressional intent is clear courts must “employ[] traditional tools of statutory construction”); Cal. Indep. Operator Corp. v. FERC, 372 F.3d 395, 400–01 (D.C. Cir. 2004) (rejecting agency’s interpretation, and concluding that “practice” in section 206 of the Federal Power Act is not ambiguous when considered in context). Here, we think applying traditional tools of statutory construction demonstrates that “other property” in section 104(b)(4) is not ambiguous. First, Congress has passed many statutes that authorize an agency to receive gifts of “money” in addition to authorizing the agency to receive gifts of “property.” See, e.g., 10 U.S.C. § 2601(a) (2006) (authorizing the Secretary of Defense or Homeland Security to “accept, hold, administer, and spend any gift, devise, or bequest of real property, personal property, or money”); 22 U.S.C. § 2395(d) (2006) (authorizing the President to accept “gifts, devises, bequests, grants, etc.” of “money, funds, property, and services of any kind”); 22 U.S.C. § 2455(f) (2006) (authorizing the President to accept and use contributions of “funds, property, and services”); 22 U.S.C. § 5422(c)(1) (2006) (authorizing the Secretary of Labor to accept “any money or property, real, personal, or mixed, tangible or intangible, received by gift, devise, bequest, or otherwise”); 22 U.S.C. § 2056(b) (2006) (authorizing the Secretary of State to “accept from public and private sources money and property” as “gifts, bequests, and devises”); 29 U.S.C. § 568 (2006) (authorizing the Secretary of Labor to accept and employ “any money or property, real, personal, or mixed, 392 EPA Acceptance and Use of Donations Under the Clean Air Act tangible or intangible, received by gift, devise, bequest, or otherwise”); 29 U.S.C. § 2939(b) (2006) (same); 42 U.S.C. § 2476b(a) (2006) (authorizing the Administrator of the National Aeronautics and Space Administration to “accept gifts and donations of services, money, and real, personal, tangible, and intangible property”); 42 U.S.C. § 7705c(a) (2006) (authorizing the Director of the Federal Emergency Management Agency to “accept and use bequests, gifts, or donations of services, money, or property”). These statutes, by specifically referencing “money” in addition to “property,” demonstrate that Congress does not assume that the term “property” necessarily includes money or funds. Moreover, even when Congress uses a general term, such as “any property,” to characterize the types of property that an agency may receive, it sometimes spells out in a related statutory provision that money is among the types of property the agency may receive. See, e.g., 7 U.S.C. §§ 2264, 2265 (2006) (authorizing the Secretary of Agriculture to “accept, receive, hold, and administer on behalf of the United States gifts, bequests, or devises of real and personal property . . . for the benefit of the National Agricultural Library,” and subsequently specifying how “[a]ny gift of money accepted pursuant to the authority” shall be deposited in the Treasury and appropriated); 28 U.S.C. § 524(d)(1), (2) (2006) (authorizing the Attorney General to “accept, hold, administer, and use gifts, devises, and bequests of any property or services,” and subsequently specifying how “[g]fits, devises, and bequests of money” shall be deposited in the Treasury and appropriated). These statutes show both that Congress has more than one way to indicate expressly that money is among the types of “property” that an agency may receive, and that the meanings of general terms such as “any property,” “other property,” or “property” need to be discerned by considering the surrounding statutory context. This is not to say that Congress must expressly state in a gift acceptance provision or a related provision that money is among the types of property an agency may accept by donation in order for money to be included. Our 1977 opinion addressing the gift acceptance provision formerly codified at 40 U.S.C. § 298a (1976) (and now codified at 40 U.S.C. § 3175 (2006)) concluded that if Congress employs the term “property” in a context that indicates that its meaning is expansive enough to encompass money, an explicit invocation of the terms “money” or “funds” may not be necessary. Acceptance of Gifts to Be Used in the 393 33 Op. O.L.C. 389 (2009) White House, 2 Op. O.L.C. at 352. But Congress’s inclusion of an explicit reference to money in numerous statutes that also use the term “property” undermines, in our view, the position that “the word ‘property’ when included in a statute that authorizes agencies to accept donations, includes funds, money, or cash unless the statute excludes this form of property.” EPA Letter at 2. Second, the immediate statutory context of the phrase “other property” in section 104(b)(4) indicates that it does not include money. See, e.g., King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (“the meaning of statutory language, plain or not, depends on context”); id. (“Words are not pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used.”) (quoting NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941) (L. Hand, J.)). Section 104 is not a general gift acceptance provision that permits an agency to accept donations for any authorized purpose. See, e.g., 29 U.S.C. § 568 (2006) (titled “Acceptance of donations by Secretary” and providing that “[t]he Secretary of Labor is authorized to accept, in the name of the Department of Labor, and employ or dispose of in furtherance of authorized activities of the Department of Labor, during the fiscal year ending September 30, 1995, and each fiscal year thereafter, any money or property, real, personal, or mixed, tangible or intangible, received by gift, devise, bequest, or otherwise”). Rather, it permits acquisition of property only in order to facilitate a particular activity, namely, research to control air pollution resulting from the combustion of fuels. And consistent with that focused purpose, the words preceding “other property” in section 104(b)(4) indicate a limitation on the forms of property that may be “acquire[d]” pursuant to that section. 1 The section states that the Administrator may acquire “secret processes, technical data, inventions, patent applications, patents, licenses, and an interest in lands, plants, and facilities.” These detailed specifications 1 We are aware of two other statutes in the U.S. Code with the same phrasing as section 104(b)(4), both of which, like section 104, authorize scientific research on a particular subject. See 7 U.S.C. §§ 178g, 178h (2006). These statutes are administered by the Departments of Agriculture and Commerce. The General Counsel’s Offices in both of those departments have informed us that they are unaware of either department acquiring any property under these statutes. 394 EPA Acceptance and Use of Donations Under the Clean Air Act would be unnecessary if the subsequent phrase “other property” was intended to include all types of property, including money. The list instead is best read to illustrate the types of property that may be received, types that are all distinguishable from money. Consistent with this purpose, the list that precedes the phrase “other property or rights” is narrowly focused on tools useful in research—various forms of intellectual property as well as space and facilities. Money, although always generally useful, is not in and of itself a research tool in the way that intellectual property—the specified “secret processes, technical data, inventions, patent applications, patents licenses”—and physical space and equipment—“an interest in lands, plants, and facilities”—are in and of themselves research tools. This interpretation of section 104(b)(4) is reinforced by the canon of statutory construction ejusdem generis, which instructs that where “general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001) (internal quotation marks omitted) (quoting 2A Norman Singer, Sutherland on Statutes and Statutory Construction § 47.17 (1991)). For example, in Washington State Department of Social & Health Services v. Keffeler, the Supreme Court determined that the statutory phrase at issue, “other legal process,” had to be read narrowly due to the words that preceded it. 537 U.S. 371, 383– 84 (2003). Keffeler concerned the legality of a Washington State scheme whereby, for children under the State’s foster care, the State credited Social Security benefits received on behalf of each of those children to a special account, and debited that account to pay foster care providers. Federal law protected those Social Security benefits from “execution, levy, attachment, garnishment, or other legal process.” 42 U.S.C. § 407(a) (2006); id. § 1383(d)(1). The question before the court was whether “other legal process” covered Washington State’s scheme. The Court concluded that it did not, even though the phrase at issue, “in the abstract,” encompassed the contested activity. Keffeler, 537 U.S. at 383–84 (“[T]he case boils down to whether the department’s manner of gaining control of the federal funds involves ‘other legal process,’ as the statute uses that term. That restriction to the statutory usage of ‘other legal process’ is important here, for in the abstract the department does use legal 395 33 Op. O.L.C. 389 (2009) process as the avenue to reimbursement.”). The Court found that “other legal process” needed to be read “far more restrictively” because it was limited by the terms that preceded it, “execution, levy, attachment, garnishment.” Id. at 384–85. The Court looked at those preceding terms, identified a unifying theme, and read “other legal process” to mean “process much like the processes of execution, levy, attachment, and garnishment, and at a minimum . . . requir[ing] utilization of some judicial or quasi-judicial mechanism, though not necessarily an elaborate one, by which control over property passes from one person to another in order to discharge or secure discharge of an allegedly existing or anticipated liability.” Id. at 385. Applying the ejusdem generis canon to section 104(b)(4) supports the conclusion that “other property” does not include money. Like “other legal process,” the term at issue in Keffeler, “other property” in section 104(b)(4) could, “in the abstract,” shorn of context, encompass the contested thing. But nothing in the list that precedes “other property” looks anything like money. Instead, each item in the list that precedes it could be classified as a tool that the Administrator might need to acquire for direct use in research. There is no item on the list, for example, of general value, which might indicate that “other property” should encompass property not directly useful in research but indirectly useful as a funding source. To be sure, section 104(b)(4) includes “donation” as one of the allowable ways of obtaining something useful in the authorized research. And, in the abstract, money may be received by donation. But we do not read the word “donation,” in context, to indicate an expansive meaning of the term “other property.” The word “donation,” like the term “other property,” does not stand alone. It appears in a list of specified means of acquisition that is exhaustive. That list reinforces our conclusion that the illustrative examples that precede “other property” indicate that money was not intended to be among the things that could be accepted as a gift. “[P]urchase, license, lease, or donation” are the four ways one can obtain tangible or intangible personal property, real property, or the rights to use intellectual property. Money uniquely cannot be purchased, licensed or leased. It would be anomalous to authorize the Administrator to “acquire” money by “purchase, license,” or “lease.” Thus, the inclusion of the word “donation” does not indicate that the word “property” should be read to 396 EPA Acceptance and Use of Donations Under the Clean Air Act include money. It is better read to denominate another means by which non-monetary types of property may be acquired. In arguing that the term “other property” in section 104(b)(4) should be read to encompass money, your office notes that an earlier opinion by this Office addressing a different statute’s use of the phrase “other property” could be read to encompass money. EPA Letter at 6. A brief examination of the statute at issue in that earlier opinion, however, only supports our conclusion here. In 1977, we concluded that 40 U.S.C. § 298a (1976) (now codified at 40 U.S.C. § 3175) allowed the Administrator of General Services (“GSA”) to accept gifts of money. Our analysis, in its entirety, was as follows: “The statute applicable to GSA does not expressly mention gifts of money, but such gifts would appear to be included in the general phrase in 40 U.S.C. § 298a (1976), ‘gifts of real, personal, or other property.’” Acceptance of Gifts to Be Used in the White House, 2 Op. O.L.C. at 352. At the time we wrote that opinion, 40 U.S.C. § 298a was titled “Acceptance of gifts of real, personal, or other property.” Its entire text was as follows: The Administrator of General Services, together with the Postmaster General where his office is concerned, is authorized to accept on behalf of the United States unconditional gifts of real, personal, or other property in aid of any project or function within their respective jurisdictions. Unlike the statutory text surrounding the term “other property” in section 104(b)(4), there is no context to limit the meaning of the term “other property” in former section 298a. On the contrary, the different preceding phrase in former section 298a, “unconditional gifts of real, personal,” stands in contrast to the beginning of section 104(b)(4). First, it authorizes receipt of property by only one means, “gifts,” i.e., donation. That is consistent with the inclusion of money in the forms of property authorized to be accepted and contains none of the limiting implications of “acquire . . . by purchase, license, lease” in section 104(b)(4). Second, the terms “real” and “personal” are general and encompassing, again unlike the much more specific types of property interests identified in section 104(b)(4), “secret processes, technical data, inventions, patent applications, patents, licenses, and an interest in lands, plants, and facilities.” All 397 33 Op. O.L.C. 389 (2009) property, of any kind, is either “real” or “personal,” including money. See, e.g., Black’s Law Dictionary 1254 (8th ed. 2004) (defining “personal property” as “[a]ny movable or intangible thing that is subject to ownership and not classified as real property”). 2 Our conclusion that the phrase “other property” should be interpreted differently in section 104(b)(4) and in former section 298a, then, flows naturally from the starkly different statutory contexts in which the phrase appears. We have also examined the legislative history of section 104, but we think it sheds no light on the question before us. The legislative history contains no discussion of the meaning of the term “other property,” nor does it address what the drafters meant by their use of the terms “acquire” or “donation.” As the EPA acknowledges in its December 15, 2008 letter, the legislative history contains “no specific discussion of what Congress intended by the phrase ‘and other property.’” EPA Letter at 3. The two places in the legislative history to which the EPA draws attention in its letter are inconclusive at best, and primarily can be read to indicate that Congress was focused on empowering the EPA Administrator to obtain the tools necessary for the relevant research programs, not on validating a general gift or donation statute. First, the EPA notes that the original Senate report on the bill that included section 104 stated that “the Secretary is directed to . . . acquire property and rights by various means.” EPA Letter at 3 (citing S. Rep. No. 90-403, at 41 (1967)). The use of the term “property” without explanation or elaboration sheds no light on whether it includes money. In a preceding paragraph, the Report characterizes section 104’s purpose as “requir[ing] the Secretary to give special emphasis to research into new methods for the control of air pollution resulting from fuel combustion.” S. Rep. No. 90-403, at 41. The reference to the Secretary’s direction to “acquire property and rights by various means” appears in a list of the Secretary’s obligations “[i]n order to carry out the provisions of this section.” Id. The Secretary “is directed to conduct research and development of low-cost instrumentation techniques to determine the quantity and quality of air pollution emissions; make use of existing Federal laboratories; establish 2 In fact, in 2002 Congress amended 40 U.S.C. § 298a to replace “real, personal, or other property” with the simple term “property” because the phrase “real, personal, or other” was “unnecessary.” H.R. Rep. No. 107-479, at 57 (2002). 398 EPA Acceptance and Use of Donations Under the Clean Air Act and operate facilities to carry out the research; acquire property and rights by various means, and cooperate and participate in the development of foreign and domestic projects.” Id. Every element of this passage indicates that Congress’s focus was on the research itself, and on the acquisition of the tools necessary to accomplish the research, rather than on the types of property the EPA could acquire. No reference is made to donations or gifts. The statement that the Secretary is directed “to acquire property by various means” demonstrates, at most, that Congress intended to broadly empower the acquisition of the necessary property, not that Congress intended such property to include money. Second, the EPA points to a comment in another Senate report issued when Congress amended section 104 to increase appropriations. In that report, the Committee on Public Works expresses an expectation that “projects involving cost sharing by industry will account for an increasing share of the [research and development] program in the months and years ahead, particularly in the area of prototype testing.” S. Rep. No. 91-286, at 6 (1969). This statement, like the one in the earlier Senate report, in no way suggests an intent to enable the EPA Administrator to receive and use donated funds. Nowhere does the report state that such “cost sharing” shall occur by the donation of private funds to the EPA. In fact, other parts of the report indicate that such cost sharing would be achieved through the sharing of real and intellectual property, the kinds of “property” specified in section 104(b)(4). For example, the report notes that “section 104 allows for the construction and testing of demonstration control equipment on private property. The consequence is to ease the legal problems associated with supporting large-scale development and demonstration projects involving construction on private property. The construction and operation of demonstration plants at industrial sites is often the best means of making a realistic evaluation of the economic and technical feasibility of new processes.” Id. at 5. This passage fits with section 104(b)(4)’s statement that the Administrator may “acquire . . . an interest in lands, plants, and facilities.” Similarly, in the paragraph following the statement about cost-sharing quoted by the EPA, the report notes that “[a]greements regarding the handling of proprietary information have been negotiated to pave the way for evaluation of flue-gas treatment processes developed by Wellman-Lord and the Monsanto Co.” Id. at 7. 399 33 Op. O.L.C. 389 (2009) This passage fits with section 104(b)(4)’s authorization of the Administrator to “acquire . . . patents, licenses.” Considering both the immediate context in which “other property” appears in section 104(b)(4) and the broader context of other statutes authorizing agencies to accept donations, we believe Congress did not intend to authorize the EPA to accept monetary donations when it authorized the acquisition of certain types of property in section 104(b)(4). II. In a follow-up letter, dated May 29, 2009, your office has asked us to address a related question, whether “other property” in section 104(b)(4) includes items of personal property other than money, such as an automobile. See Letter for David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel, from Patricia K. Hirsch, Acting General Counsel, Environmental Protection Agency, at 1 (May 29, 2009). We conclude that it does. As our discussion in Part I indicates, we believe that, under the ejusdem generis canon, the term “other property” in section 104(b)(4) is constrained by the items in the list that precedes it. While many of those items are forms of intangible property, such as various kinds of intellectual property, not all of them are. Among the types of property that may be acquired are “lands, plants, and facilities.” Admittedly, the reference to those forms of property is prefaced by “an interest in.” 42 U.S.C. § 7404(b)(4). But fee simple ownership is one type of property interest. And, in any event, as explained above, this list identifies types of property that are all tools directly useful in executing the anti-pollution research authorized by section 104. In particular, the term “facilities” is quite broad, and would appear to cover a research lab and relevant research equipment. Personal property, moreover, may not only be acquired by donation, but also by purchase, license, or lease. Therefore, we believe that property that would be used directly in the anti-pollution research authorized by section 104 falls within the scope of property that can be acquired pursuant to section 104(b)(4). With this understanding of the term “property” in mind, certainly an automobile could fall under the term if, for example, it were acquired to test its emissions or even if it were acquired to shuttle equipment between research facilities. 400 EPA Acceptance and Use of Donations Under the Clean Air Act III. For the foregoing reasons, we conclude that section 104(b)(4) of the Clean Air Act does not authorize the receipt and use of donated money but does authorize the EPA to receive personal property that does not fall into one of the specifically enumerated categories so long as it is for use directly to carry out the anti-pollution research authorized by section 104. JONATHAN G. CEDARBAUM Deputy Assistant Attorney General Office of Legal Counsel 401

Write a legal research memo on the following topic.

(Slip Opinion) House Committees’ Authority to Investigate for Impeachment The House of Representatives must expressly authorize a committee to conduct an impeachment investigation and to use compulsory process in that investigation before the committee may compel the production of documents or testimony in support of the House’s power of impeachment. The House had not authorized an impeachment investigation in connection with impeachment-related subpoenas issued by House committees before October 31, 2019, and the subpoenas therefore had no compulsory effect. The House’s adoption of Resolution 660 on October 31, 2019, did not alter the legal status of those subpoenas, because the resolution did not ratify or otherwise address their terms. January 19, 2020 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT On September 24, 2019, Speaker of the House Nancy Pelosi “announc[ed]” at a press conference that “the House of Representatives is moving forward with an official impeachment inquiry” into the President’s actions and that she was “directing . . . six Committees to proceed with” several previously pending “investigations under that umbrella of impeachment inquiry.” 1 Shortly thereafter, the House Committee on Foreign Affairs issued a subpoena directing the Secretary of State to produce a series of documents related to the recent conduct of diplomacy between the United States and Ukraine. See Subpoena of the Committee on Foreign Affairs (Sept. 27, 2019). In an accompanying letter, three committee chairmen stated that their committees jointly sought these documents, not in connection with legislative oversight, but “[p]ursuant to the House of Representatives’ impeachment inquiry.” 2 In the following days, the committees issued subpoenas to the Acting White House Chief 1 Nancy Pelosi, Speaker of the House, Press Release: Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 2019), www.speaker.gov/newsroom/92419-0 (“Pelosi Press Release”). 2 Letter for Michael R. Pompeo, Secretary of State, from Eliot L. Engel, Chairman, Committee on Foreign Affairs, U.S. House of Representatives, Adam Schiff, Chairman, Permanent Select Committee on Intelligence, U.S. House of Representatives, and Elijah E. Cummings, Chairman, Committee on Oversight & Reform, U.S. House of Representatives at 1 (Sept. 27, 2019) (“Three Chairmen’s Letter”). 1 Opinions of the Office of Legal Counsel in Volume 44 of Staff, the Secretary of Defense, the Secretary of Energy, and several others within the Executive Branch. Upon the issuance of these subpoenas, you asked whether these committees could compel the production of documents and testimony in furtherance of an asserted impeachment inquiry. We advised that the committees lacked such authority because, at the time the subpoenas were issued, the House had not adopted any resolution authorizing the committees to conduct an impeachment inquiry. The Constitution vests the “sole Power of Impeachment” in the House of Representatives. U.S. Const. art. I, § 2, cl. 5. For precisely that reason, the House itself must authorize an impeachment inquiry, as it has done in virtually every prior impeachment investigation in our Nation’s history, including every one involving a President. A congressional committee’s “right to exact testimony and to call for the production of documents” is limited by the “controlling charter” the committee has received from the House. United States v. Rumely, 345 U.S. 41, 44 (1953). Yet the House, by its rules, has authorized its committees to issue subpoenas only for matters within their legislative jurisdiction. Accordingly, no committee may undertake the momentous move from legislative oversight to impeachment without a delegation by the full House of such authority. We are not the first to reach this conclusion. This was the position of the House in the impeachments of Presidents Nixon and Clinton. In the case of President Nixon, following a preliminary inquiry, the House adopted a formal resolution as a “necessary step” to confer the “investigative powers” of the House “to their full extent” upon the Judiciary Committee. 120 Cong. Rec. 2350–51 (1974) (statement of Rep. Rodino); see H.R. Res. 803, 93d Cong. (1974). As the House Parliamentarian explained, it had been “considered necessary for the House to specifically vest the Committee on the Judiciary with the investigatory and subpena power to conduct the impeachment investigation.” 3 Lewis Deschler, Deschler’s Precedents of the United States House of Representatives ch. 14, § 15.2, at 2172 (1994) (Parliamentarian’s Note). 3 The House followed the same course in the impeachment of President Clinton. After reviewing the Independent Counsel’s referral, the Judiciary Committee “decided that it must receive authorization from the full House before proceeding on 3 Although volume 3 of Deschler’s Precedents was published in 1979, our citations of Deschler’s Precedents use the continuously paginated version that is available at www. govinfo.gov/collection/precedents-of-the-house. 2 House Committees’ Authority to Investigate for Impeachment any further course of action.” H.R. Rep. No. 105-795, at 24 (1998). The House again adopted a resolution authorizing the committee to issue compulsory process in support of an impeachment investigation. See H.R. Res. 581, 105th Cong. (1998). As Representative John Conyers summarized in 2016: “According to parliamentarians of the House past and present, the impeachment process does not begin until the House actually votes to authorize [a] Committee to investigate the charges.” 4 In marked contrast with these historical precedents, in the weeks after the Speaker’s announcement, House committees issued subpoenas without any House vote authorizing them to exercise the House’s authority under the Impeachment Clause. The three committees justified the subpoenas based upon the Rules of the House, which authorize subpoenas for matters within a committee’s jurisdiction. But the Rules assign only “legislative jurisdiction[]” and “oversight responsibilities” to the committees. H.R. Rules, 116th Cong., Rule X, cl. 1 (Jan. 11, 2019) (“Committees and their legislative jurisdictions”), cl. 2 (“General oversight responsibilities”); see also H.R. Rule X, cls. 3(m), 11. The House’s legislative power is distinct from its impeachment power. Compare U.S. Const. art. I, § 1, with id. art. I, § 2, cl. 5. Although committees had that same delegation during the Clinton impeachment and a materially similar one during the Nixon impeachment, the House determined on both occasions that the Judiciary Committee required a resolution to investigate. Speaker Pelosi purported to direct the committees to conduct an “official impeachment inquiry,” but the House Rules do not give the Speaker any authority to delegate investigative power. The committees thus had no delegation authorizing them to issue subpoenas pursuant to the House’s impeachment power. In the face of objections to the validity of the committee subpoenas that were expressed by the Administration, by ranking minority members in the House, and by many Senators, among others, on October 31, 2019, the House adopted Resolution 660, which “directed” six committees “to continue their ongoing investigations” as part of the “existing House of Representatives inquiry into whether sufficient grounds exist” to impeach President Trump. H.R. Res. 660, 116th Cong. § 1 (2019). Resolution 660’s direction, however, was entirely prospective. The resolution did not purport to ratify any previously issued subpoenas or even make any men- 4 Impeachment Articles Referred on John Koskinen (Part III): Hearing Before the H. Comm. on the Judiciary, 114th Cong. 3 (2016). 3 Opinions of the Office of Legal Counsel in Volume 44 tion of them. Accordingly, the pre-October 31 subpoenas, which had not been authorized by the House, continued to lack compulsory force. 5 I. Since the start of the 116th Congress, some members of Congress have proposed that the House investigate and impeach President Trump. On January 3, 2019, the first day of the new Congress, Representative Brad Sherman introduced a resolution to impeach “Donald John Trump, President of the United States, for high crimes and misdemeanors.” H.R. Res. 13, 116th Cong. (2019). The Sherman resolution called for impeachment based upon the President’s firing of the Director of the Federal Bureau of Investigation, James Comey. See id. Consistent with settled practice, the resolution was referred to the Judiciary Committee. See H.R. Doc. No. 115-177, Jefferson’s Manual § 605, at 324 (2019). The Judiciary Committee did not act on the Sherman resolution, but it soon began an oversight investigation into related subjects that were also the focus of a Department of Justice investigation by Special Counsel Robert S. Mueller, III. On March 4, 2019, the committee served document requests on the White House and 80 other agencies, entities, and individuals, “unveil[ing] an investigation . . . into the alleged obstruction of justice, public corruption, and other abuses of power by President Trump, his associates, and members of his Administration.” 6 Those document requests did not mention impeachment. After the Special Counsel finished his investigation, the Judiciary Committee demanded his investigative files, describing its request as an This opinion memorializes the advice we gave about subpoenas issued before October 31. We separately addressed some subpoenas issued after that date. See, e.g., Letter for Pat A. Cipollone, Counsel to the President, from Steven A. Engel, Assistant Attorney General, Office of Legal Counsel (Nov. 7, 2019) (subpoena to Mick Mulvaney); Letter for Pat A. Cipollone, Counsel to the President, from Steven A. Engel, Assistant Attorney General, Office of Legal Counsel (Nov. 3, 2019) (subpoena to John Eisenberg); Exclusion of Agency Counsel from Congressional Depositions in the Impeachment Context, 43 Op. O.L.C. __ (Nov. 1, 2019). 6 U.S. House of Representatives Committee on the Judiciary, Press Release: House Judiciary Committee Unveils Investigation into Threats Against the Rule of Law (Mar. 4, 2019), judiciary.house.gov/news/press-releases/house-judiciary-committee-unveilsinvestigation-threats-against-rule-law; see also Letter for the White House, c/o Pat Cipollone, from Jerrold Nadler, Chairman, Committee on the Judiciary, U.S. House of Representatives (Mar. 4, 2019). 5 4 House Committees’ Authority to Investigate for Impeachment exercise of legislative oversight authority. See Letter for William P. Barr, Attorney General, from Jerrold Nadler, Chairman, Committee on the Judiciary, U.S. House of Representatives at 3 (May 3, 2019) (asserting that “[t]he Committee has ample jurisdiction under House Rule X(l ) to conduct oversight of the Department [of Justice], undertake necessary investigations, and consider legislation regarding the federal obstruction of justice statutes, campaign-related crimes, and special counsel investigations, among other things”). The committee’s subsequent letters and public statements likewise described its inquiry as serving a “legislative purpose.” E.g., Letter for Pat Cipollone, White House Counsel, from Jerrold Nadler, Chairman, Committee on the Judiciary, U.S. House of Representatives at 3–6 (May 16, 2019) (describing the “legislative purpose of the Committee’s investigation” (capitalization altered)). Over time, the Judiciary Committee expanded the description of its investigation to claim that it was considering impeachment. The committee first mentioned impeachment in a May 8, 2019 report recommending that the Attorney General be held in contempt of Congress. In a section entitled “Authority and Legislative Purpose,” the committee stated that one purpose of the inquiry was to determine “whether to approve articles of impeachment with respect to the President or any other Administration official.” H.R. Rep. No. 116-105, at 12, 13 (2019). 7 The committee formally claimed to be investigating impeachment when it petitioned the U.S. District Court for the District of Columbia to release grand-jury information related to the Special Counsel’s investigation. See Application at 1–2, In re Application of the Comm. on the Judiciary, U.S. 7 On June 11, 2019, the full House adopted Resolution 430. Its first two clauses authorized the Judiciary Committee to file a lawsuit to enforce subpoenas against Attorney General William Barr and former White House Counsel Donald McGahn and purported to authorize the Bipartisan Legal Advisory Group to approve future litigation. See H.R. Res. 430, 116th Cong. (2019). The next clause of the resolution then stated that, “in connection with any judicial proceeding brought under the first or second resolving clauses, the chair of any standing or permanent select committee exercising authority thereunder has any and all necessary authority under Article I of the Constitution.” Id. The resolution did not mention “impeachment” and, by its terms, authorized actions only in connection with the litigation authorized “under the first or second resolving clauses.” On the same day that the House adopted Resolution 430, Speaker Pelosi stated that the House’s Democratic caucus was “not even close” to an impeachment inquiry. Rep. Nancy Pelosi (D-CA) Continues Resisting Impeachment Inquiry, CNN (June 11, 2019), transcripts.cnn.com/ TRANSCRIPTS/1906/11/cnr.04.html. 5 Opinions of the Office of Legal Counsel in Volume 44 House of Reps., No. 19-gj-48 (D.D.C. July 26, 2019); see also Memorandum for Members of the Committee on the Judiciary from Jerrold Nadler, Chairman, Re: Lessons from the Mueller Report, Part III: “Constitutional Processes for Addressing Presidential Misconduct” at 3 (July 11, 2019) (advising that the Committee would seek documents and testimony “to determine whether the Committee should recommend articles of impeachment against the President or any other Article I remedies, and if so, in what form”). 8 The committee advanced the same contention when asking the district court to compel testimony before the committee by former White House Counsel Donald McGahn. See Compl. for Declaratory and Injunctive Relief ¶ 1, Comm. on the Judiciary, U.S. House of Reps. v. McGahn, No. 19-cv-2379 (D.D.C. Aug. 7, 2019) (contending that the Judiciary Committee was “now determining whether to recommend articles of impeachment against the President based on the obstructive conduct described by the Special Counsel”). In connection with this litigation, Chairman Nadler described the committee as conducting “formal impeachment proceedings.” David Priess & Margaret Taylor, What if the House Held Impeachment Proceedings and Nobody Noticed?, Lawfare (Aug. 12, 2019), www.lawfareblog.com/whatif-house-held-impeachment-proceedings-and-nobody-noticed (chronicling the evolution in Chairman Nadler’s descriptions of the investigation). Those assertions coincided with media reports that Chairman Nadler had privately asked Speaker Pelosi to support the opening of an impeachment inquiry. See, e.g., Andrew Desiderio, Nadler: ‘This is Formal Impeachment Proceedings,’ Politico (Aug. 8, 2019), www.politico.com/story/ 2019/08/08/nadler-this-is-formal-impeachment-proceedings-1454360 (noting that Nadler “has privately pushed Speaker Nancy Pelosi to support a formal inquiry of whether to remove the president from office”). On September 12, the Judiciary Committee approved a resolution describing its investigation as an impeachment inquiry and adopting certain procedures for the investigation. See Resolution for Investigative Procedures Offered by Chairman Jerrold Nadler, H. Comm. on the Judiciary, 116th While the House has delegated to the Bipartisan Legal Advisory Group the ability to “articulate[] the institutional position of ” the House, it has done so only for purposes of “litigation matters.” H.R. Rule II, cl. 8(b). Therefore, neither the group, nor the House counsel implementing that group’s directions, could assert the House’s authority in connection with an impeachment investigation, which is not a litigation matter. 8 6 House Committees’ Authority to Investigate for Impeachment Cong. (Sept. 12, 2019), docs.house.gov/meetings/JU/JU00/20190912/ 109921/BILLS-116pih-ResolutionforInvestigativeProcedures.pdf. Speaker Pelosi did not endorse the Judiciary Committee’s characterization of its investigation during the summer of 2019. But she later purported to announce a formal impeachment inquiry in connection with a separate matter arising out of a complaint filed with the Inspector General of the Intelligence Community. The complaint, cast in the form of an unsigned letter to the congressional intelligence committees, alleged that, in a July 25, 2019 telephone call, the President sought to pressure Ukrainian President Volodymyr Zelenskyy to investigate the prior activities of one of the President’s potential political rivals. See Letter for Richard Burr, Chairman, Select Committee on Intelligence, U.S. Senate, and Adam Schiff, Chairman, Permanent Select Committee on Intelligence, U.S. House of Representatives at 2–3 (Aug. 12, 2019). After the Inspector General reported the existence of the complaint to the intelligence committees, the President declassified the official record of the July 25 telephone call and the complaint, and they were publicly released on September 25 and 26, respectively. On September 24, the day before the release of the call record, Speaker Pelosi “announc[ed]” that “the House of Representatives is moving forward with an official impeachment inquiry” and that she was “direct[ing] . . . six [c]ommittees to proceed with their investigations under that umbrella of impeachment inquiry.” Pelosi Press Release, supra note 1. In an October 8, 2019 court hearing, the House’s General Counsel invoked the Speaker’s announcement as purportedly conclusive proof that the House had opened an impeachment inquiry. Tr. of Mot. Hrg. at 23, In re Application of the Comm. on the Judiciary (“We are in an impeachment inquiry, an impeachment investigation, a formal impeachment investigation because the House says it is. The speaker of the House has specifically said that it is.”). On September 27, Chairman Engel of the Foreign Affairs Committee issued a subpoena to Secretary of State Pompeo “[p]ursuant to the House of Representatives’ impeachment inquiry.” Three Chairmen’s Letter, supra note 2, at 1. That subpoena was the first to rely on the newly proclaimed “impeachment inquiry.” A number of subpoenas followed, each of which was accompanied by a letter signed by the chairmen of three committees (Foreign Affairs, Oversight and Reform, and the Permanent Select Committee on Intelligence (“HPSCI”)). Although the September 27 letter mentioned only the “impeachment inquiry” as a basis for the ac7 Opinions of the Office of Legal Counsel in Volume 44 companying subpoena, subsequent letters claimed that other subpoenas were issued both “[p]ursuant to the House of Representatives’ impeachment inquiry” and “in exercise of ” the committees’ “oversight and legislative jurisdiction.” 9 Following service of these subpoenas, you and other officials within the Executive Branch requested our advice with respect to the obligations of the subpoenas’ recipients. We advised that the subpoenas were invalid because, among other reasons, the committees lacked the authority to conduct the purported inquiry and, with respect to several testimonial subpoenas, the committees impermissibly sought to exclude agency counsel from scheduled depositions. In reliance upon that advice, you and other responsible officials directed employees within their respective departments and agencies not to provide the documents and testimony requested under those subpoenas. On October 8, 2019, you sent a letter to Speaker Pelosi and the three chairmen advising them that their purported impeachment inquiry was “constitutionally invalid” because the House had not authorized it. 10 The House Minority Leader, Kevin McCarthy, and the Ranking Member of the Judiciary Committee, Doug Collins, had already made the same objec- 9 E.g., Letter for John Michael Mulvaney, Acting Chief of Staff to the President, from Elijah E. Cummings, Chairman, Committee on Oversight & Reform, U.S. House of Representatives, Adam B. Schiff, Chairman, Permanent Select Committee on Intelligence, U.S. House of Representatives, and Eliot L. Engel, Chairman, Committee on Foreign Affairs, U.S. House of Representatives at 1 (Oct. 4, 2019); Letter for Mark T. Esper, Secretary of Defense, from Adam B. Schiff, Chairman, Permanent Select Committee on Intelligence, U.S. House of Representatives, Eliot L. Engel, Chairman, Committee on Foreign Affairs, U.S. House of Representatives, and Elijah E. Cummings, Chairman, Committee on Oversight & Reform, U.S. House of Representatives at 1 (Oct. 7, 2019); Letter for Gordon Sondland, U.S. Ambassador to the European Union, from Adam B. Schiff, Chairman, Permanent Select Committee on Intelligence, U.S. House of Representatives, Elijah E. Cummings, Chairman, Committee on Oversight & Reform, U.S. House of Representatives, and Eliot L. Engel, Chairman, Committee on Foreign Affairs, U.S. House of Representatives at 1 (Oct. 8, 2019); Letter for James Richard “Rick” Perry, Secretary of Energy, from Eliot L. Engel, Chairman, Committee on Foreign Affairs, U.S. House of Representatives, Adam B. Schiff, Chairman, Permanent Select Committee on Intelligence, U.S. House of Representatives, and Elijah E. Cummings, Chairman, Committee on Oversight & Reform, U.S. House of Representatives at 1 (Oct. 10, 2019). 10 Letter for Nancy Pelosi, Speaker, U.S. House of Representatives, et al., from Pat A. Cipollone, Counsel to the President at 2–3 (Oct. 8, 2019). 8 House Committees’ Authority to Investigate for Impeachment tion. 11 Senator Lindsey Graham introduced a resolution in the Senate, cosponsored by 49 other Senators, which objected to the House’s impeachment process because it had not been authorized by the full House and did not provide the President with the procedural protections enjoyed in past impeachment inquiries. S. Res. 378, 116th Cong. (2019). On October 25, 2019, the U.S. District Court for the District of Columbia granted the Judiciary Committee’s request for grand-jury information from the Special Counsel’s investigation, holding that the committee was conducting an impeachment inquiry that was “preliminar[y] to . . . a judicial proceeding,” for purposes of the exception to grand-jury secrecy in Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure. See In re Application of the Comm. on the Judiciary, U.S. House of Reps., No. 19gj-48, 2019 WL 5485221 (D.D.C. Oct. 25, 2019), stay granted, No. 195288 (D.C. Cir. Oct. 29, 2019), argued (D.C. Cir. Jan. 3, 2020). In so holding, the court concluded that the House need not adopt a resolution before a committee may begin an impeachment inquiry. Id. at *26–28. As we discuss below, the district court’s analysis of this point relied on a misreading of the historical record. Faced with continuing objections from the Administration and members of Congress to the validity of the impeachment-related subpoenas, the House decided to take a formal vote to authorize the impeachment inquiry. See Letter for Democratic Members of the House from Nancy Pelosi, Speaker of the House (Oct. 28, 2019). On October 31, the House adopted a resolution “direct[ing]” several committees “to continue their ongoing investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist for the House of Representatives to exercise its Constitutional power to impeach Donald John Trump, President of the United States of America.” Resolution 660, § 1. The resolution also adopted special procedures for impeachment proceedings before HPSCI and the Judiciary Committee. See Letter for Nancy Pelosi, Speaker, U.S. House of Representatives, from Kevin McCarthy, Republican Leader, U.S. House of Representatives at 1 & n.1 (Oct. 3, 2019); Mem. Amicus Curiae of Ranking Member Doug Collins in Support of Denial at 5–21, In re Application of the Comm. on the Judiciary (D.D.C. Oct. 3, 2019). 11 9 Opinions of the Office of Legal Counsel in Volume 44 II. The Constitution vests in the House of Representatives a share of Congress’s legislative power and, separately, “the sole Power of Impeachment.” U.S. Const. art. I, § 1; id. art. I, § 2, cl. 5. Both the legislative power and the impeachment power include an implied authority to investigate, including by means of compulsory process. But those investigative powers are not interchangeable. The House has broadly delegated to committees its power to investigate for legislative purposes, but it has held impeachment authority more closely, granting authority to conduct particular impeachment investigations only as the need has arisen. The House has followed that approach from the very first impeachment inquiry through dozens more that have followed over the past 200 years, including every inquiry involving a President. In so doing, the House has recognized the fundamental difference between a legislative oversight investigation and an impeachment investigation. The House does more than simply pick a label when it “debate[s] and decide[s] when it wishes to shift from legislating to impeaching” and to authorize a committee to take responsibility for “the grave and weighty process of impeachment.” Trump v. Mazars USA, LLP, 940 F.3d 710, 737, 738 (D.C. Cir. 2019), cert. granted, No. 19-715 (Dec. 13, 2019); see also id. at 757 (Rao, J., dissenting) (recognizing that “the Constitution forces the House to take accountability for its actions when investigating the President’s misconduct”). Because a legislative investigation seeks “information respecting the conditions which the legislation is intended to affect or change,” McGrain v. Daugherty, 273 U.S. 135, 175 (1927), “legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events,” Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974) (en banc). By contrast, an impeachment inquiry must evaluate whether a civil officer did, or did not, commit treason, bribery, or another high crime or misdemeanor, U.S. Const. art. II, § 4, and it is more likely than a legislative oversight investigation to call for the reconstruction of past events. Thus, the House has traditionally marked the shift to an impeachment inquiry by adopting a resolution that authorizes a committee to investigate through court-like procedures differing significantly from those used in routine oversight. See, e.g., Jefferson’s Manual § 606, at 324 (recognizing 10 House Committees’ Authority to Investigate for Impeachment that, in modern practice, “the sentiment of committees has been in favor of permitting the accused to explain, present witnesses, cross-examine, and be represented by counsel” (citations omitted)); see also Cong. Research Serv., R45983, Congressional Access to Information in an Impeachment Investigation 15 (Oct. 25, 2019) (“[D]uring both the Nixon and Clinton impeachment investigations, the House Judiciary Committee adopted resolutions affording the President and his counsel the right to respond to evidence gathered by the committee, raise objections to testimony, and cross-examine witnesses[.]”).12 A House resolution authorizing the opening of an impeachment inquiry plays a highly significant role in directing the scope and nature of the constitutional inquest that follows. Such a resolution does not just reflect traditional practice. It is a constitutionally required step before a committee may exercise compulsory process in aid of the House’s “sole Power of Impeachment.” U.S. Const. art. I, § 2, cl. 5. In this Part, we explain the basis for this conclusion. First, we address the constitutional distinction between the House’s power to investigate for legislative purposes and for impeachment purposes. We next explain why an impeachment inquiry must be authorized by the House itself. Finally, we review the historical record, which confirms, across dozens of examples, that the House must specifically authorize The House Judiciary Committee permitted President Nixon’s counsel to submit and respond to evidence, to request to call witnesses, to attend hearings and examinations, to object to the examination of witnesses and the admissibility of testimony, and to question witnesses. See H.R. Rep. No. 93-1305, at 8–9 (1974); 3 Deschler’s Precedents ch. 14, § 6.5, at 2045–47. Later, President Clinton and his counsel were similarly “invited to attend all executive session and open committee hearings,” at which they were permitted to “cross examine witnesses,” “make objections regarding the pertinency of evidence,” “suggest that the Committee receive additional evidence,” and “respond to the evidence adduced by the Committee.” H.R. Rep. No. 105-795, at 25–26; see also 18 Deschler’s Precedents app. at 549 (2013) (noting that, during the Clinton impeachment investigation, the House made a “deliberate attempt to mirror [the] documented precedents and proceedings” of the Nixon investigation). In a departure from the Nixon and Clinton precedents, the House committees did not provide President Trump with any right to attend, participate in, or cross-examine witnesses in connection with the impeachment-related depositions conducted by the three committees before October 31. Resolution 660 similarly did not provide any such rights with respect to any of the public hearings conducted by HPSCI, limiting the President’s opportunity to participate to the Judiciary Committee, which did not itself participate in developing the investigative record upon which the articles of impeachment were premised. See H.R. Res. 660, 116th Cong. § 4(a); 165 Cong. Rec. E1357 (daily ed. Oct. 29, 2019) (“Impeachment Inquiry Procedures in the Committee on the Judiciary”). 12 11 Opinions of the Office of Legal Counsel in Volume 44 committees to conduct impeachment investigations and to issue compulsory process. A. The Constitution vests several different powers in the House of Representatives. As one half of Congress, the House shares with the Senate the “legislative Powers” granted in the Constitution (U.S. Const. art. I, § 1), which include the ability to pass bills (id. art. I, § 7, cl. 2) and to override presidential vetoes (id. art. I, § 7, cl. 3) in the process of enacting laws pursuant to Congress’s enumerated legislative powers (e.g., id. art. I, § 8), including the power to appropriate federal funds (id. art. I, § 9, cl. 7). But the House has other, non-legislative powers. It is, for instance, “the Judge of the Elections, Returns and Qualifications of its own Members.” Id. art. I, § 5, cl. 1. And it has “the sole Power of Impeachment.” Id. art. I, § 2, cl. 5. The House and Senate do not act in a legislative role in connection with impeachment. The Constitution vests the House with the authority to accuse civil officers of “Treason, Bribery, or other high Crimes and Misdemeanors” that warrant removal and disqualification from office. U.S. Const. art. I, § 2, cl. 5; id. art. I, § 3, cl. 7; id. art. II, § 4. As Alexander Hamilton explained, the members of the House act as “the inquisitors for the nation.” The Federalist No. 65, at 440 (Jacob E. Cooke ed., 1961). And Senators, in turn, act “in their judicial character as a court for the trial of impeachments.” Id. at 439; see also The Federalist No. 66, at 445– 46 (defending the “partial intermixture” in the impeachment context of usually separated powers as “not only proper, but necessary to the mutual defense of the several members of the government, against each other”; noting that dividing “the right of accusing” from “the right of judging” between “the two branches of the legislature . . . avoids the inconvenience of making the same persons both accusers and judges”). The House’s impeachment authority differs fundamentally in character from its legislative power. With respect to both its legislative and its impeachment powers, the House has corresponding powers of investigation, which enable it to collect the information necessary for the exercise of those powers. The Supreme Court has explained that “[t]he power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” McGrain, 273 U.S. at 174. Thus, in the legislative context, 12 House Committees’ Authority to Investigate for Impeachment the House’s investigative power “encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes.” Watkins v. United States, 354 U.S. 178, 187 (1957); see also Scope of Congressional Oversight and Investigative Power with Respect to the Executive Branch, 9 Op. O.L.C. 60, 60 (1985) (“Congress may conduct investigations in order to obtain facts pertinent to possible legislation and in order to evaluate the effectiveness of current laws.”). The Court has further recognized that the House also has implied powers to investigate in support of its other powers, including its power of impeachment. See, e.g., Kilbourn v. Thompson, 103 U.S. 168, 190 (1880); see also In re Request for Access to Grand Jury Materials, 833 F.2d 1438, 1445 (11th Cir. 1987) (the House “holds investigative powers that are ancillary to its impeachment power”); Mazars USA, 940 F.3d at 749 (Rao, J., dissenting) (“The House . . . has a separate power to investigate pursuant to impeachment[.]”). Because the House has different investigative powers, establishing which authority has been delegated has often been necessary in the course of determining the scope of a committee’s authority to compel witnesses and testimony. In addressing the scope of the House’s investigative powers, all three branches of the federal government have recognized the constitutional distinction between a legislative investigation and an impeachment inquiry. 1. We begin with the federal courts. In Kilbourn, the Supreme Court held that a House committee could not investigate a bankrupt company indebted to the United States because its request exceeded the scope of the legislative power. According to the Court, the committee had employed investigative power to promote the United States’ interests as a creditor, rather than for any valid legislative purpose. See 103 U.S. at 192–95. At the same time, the Court conceded that “the whole aspect of the case would have been changed” if “any purpose had been avowed to impeach the [S]ecretary” of the Navy for mishandling the debts of the United States. Id. at 193. But, after reviewing the resolution authorizing the actions of the committee, the Court confirmed that the House had not authorized any impeachment inquiry. Id. In a similar vein, the D.C. Circuit distinguished the needs of the House Judiciary Committee, which was conducting an impeachment inquiry into 13 Opinions of the Office of Legal Counsel in Volume 44 the actions of President Nixon, from those of the Senate Select Committee on Presidential Campaign Activities, whose investigation was premised upon legislative oversight. See Senate Select Comm., 498 F.2d at 732. The court recognized that the impeachment investigation was rooted in “an express constitutional source” and that the House committee’s investigative needs differed in kind from the Senate committee’s oversight needs. Id. In finding that the Senate committee had not demonstrated that President Nixon’s audiotapes were “critical to the performance of its legislative functions,” the court recognized “a clear difference between Congress’s legislative tasks and the responsibility of a grand jury, or any institution engaged in like functions,” such as the House Judiciary Committee, which had “begun an inquiry into presidential impeachment.” Id. (emphases added). More recently, the D.C. Circuit acknowledged this same distinction in Mazars USA. As the majority opinion explained, “the Constitution has left to Congress the judgment whether to commence the impeachment process” and to decide whether the conduct in question is “better addressed through oversight and legislation than impeachment.” 940 F.3d at 739. Judge Rao’s dissent also recognized the distinction between a legislative oversight investigation and an impeachment inquiry. See id. at 757 (“The Framers established a mechanism for Congress to hold even the highest officials accountable, but also required the House to take responsibility for invoking this power.”). Judge Rao disagreed with the majority insofar as she understood Congress’s impeachment power to be the sole means for investigating past misconduct by impeachable officers. But both the majority and the dissent agreed with the fundamental proposition that the Constitution distinguishes between investigations pursuant to the House’s impeachment authority and those that serve its legislative authority (including oversight). 2. The Executive Branch similarly has long distinguished between investigations for legislative and for impeachment purposes. In 1796, the House “[r]esolved” that President Washington “be requested to lay before th[e] House a copy of the instructions” given to John Jay in preparation for his negotiation of a peace settlement with Great Britain. 5 Annals of Cong. 759–62 (1796). Washington refused to comply because the Constitution contemplates that only the Senate, not the House, must consent to 14 House Committees’ Authority to Investigate for Impeachment a treaty. See id. at 760–61. “It d[id] not occur” to Washington “that the inspection of the papers asked for, c[ould] be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment.” Id. at 760 (emphasis added). Because the House’s “resolution ha[d] not expressed” any purpose of pursuing impeachment, Washington concluded that “a just regard to the constitution . . . forb[ade] a compliance with [the House’s] request” for documents. Id. at 760, 762. In 1832, President Jackson drew the same line. A select committee of the House had requested that the Secretary of War “furnish[]” it “with a copy” of an unratified 1830 treaty with the Chickasaw Tribe and “the journal of the commissioners” who negotiated it. H.R. Rep. No. 22-488, at 1 (1832). The Secretary conferred with Jackson, who refused to comply with the committee’s request on the same ground cited by President Washington: he “d[id] not perceive that a copy of any part of the incomplete and unratified treaty of 1830, c[ould] be ‘relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment, which the resolution has not expressed.’” Id. at 14 (reprinting Letter for Charles A. Wickliffe, Chairman, Committee on Public Lands, U.S. House of Representatives, from Lewis Cass, Secretary of War (Mar. 2, 1832)). In 1846, another House select committee requested that President Polk account for diplomatic expenditures made in previous administrations by Secretary of State Daniel Webster. Polk refused to disclose information but “cheerfully admitted” that the House may have been entitled to such information if it had “institute[d] an [impeachment] inquiry into the matter.” Cong. Globe, 29th Cong., 1st Sess. 698 (1846). 13 Notably, he In denying the congressional request before him, President Polk suggested, in the equivalent of dictum, that, during an impeachment inquiry, “all the archives and papers of the Executive departments, public or private, would be subject to the inspection and control of a committee of their body.” Cong. Globe, 29th Cong., 1st Sess. 698 (1846). That statement, however, dramatically understates the degree to which executive privilege remains available during an impeachment investigation to protect confidentiality interests necessary to preserve the essential functions of the Executive Branch. See Exclusion of Agency Counsel from Congressional Depositions in the Impeachment Context, 43 Op. O.L.C. __, at *3 & n.1 (Nov. 1, 2019). In a prior opinion, this Office viewed Polk as acknowledging the continued availability of executive privilege, because we read Polk’s preceding sentence as “indicat[ing]” that, even in the impeachment context, “the Executive branch ‘would adopt all wise precautions to prevent the exposure of all such matters the publication of which might injuriously affect the public interest, except so far as 13 15 Opinions of the Office of Legal Counsel in Volume 44 took this position even though some members of Congress had suggested that evidence about the expenditures could support an impeachment of Webster. 14 In these and other instances, the Executive Branch has consistently drawn a distinction between the power of legislative oversight and the power of impeachment. See Mazars USA, 940 F.3d at 761–64 (Rao, J., dissenting) (discussing examples from the Buchanan, Grant, Cleveland, Theodore Roosevelt, and Coolidge Administrations). 3. House members, too, have consistently recognized the difference between a legislative oversight investigation and an impeachment investigation. See Alissa M. Dolan et al., Cong. Research Serv., RL30240, Congressional Oversight Manual 25 (Dec. 19, 2014) (“A committee’s inquiry must have a legislative purpose or be conducted pursuant to some other constitutional power of Congress, such as the authority . . . to . . . conduct impeachment proceedings.” (emphases added)); Cong. Research Serv., Congressional Access to Information in an Impeachment Investigation at 1 (distinguishing between “legislative investigation[s]” and “[m]uch more rare[]” “impeachment investigation[s]”). For instance, in 1793, when debating the House’s jurisdiction to investigate Secretary of the Treasury Alexander Hamilton, some members argued that the House could not adopt a resolution of investigation into Hamilton’s conduct without adopting the “solemnities and guards” of an impeachment inquiry. See, e.g., 3 Annals of Cong. 903 (1793) (statement of Rep. Smith); id. at 947–48 (statement of Rep. Boudinot) (distinguishing between the House’s “Legislative capacity” and its role as “the grand inquest of the Nation”); see also Mazars USA, 940 F.3d at 758 (Rao, J., dissenting) (discussing the episode). In 1796, when the House debated this might be necessary to accomplish the great ends of public justice.’” Memorandum for Elliot Richardson, Attorney General, from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Presidential Immunity from Coercive Congressional Demands for Information at 22–23 (July 24, 1973) (quoting Polk’s letter). 14 See, e.g., Cong. Globe, 29th Cong., 1st Sess. 636 (1846) (statement of Rep. Ingersoll) (“Whether . . . [Webster’s] offences will be deemed impeachable misdemeanors in office, conviction for which might remove him from the Senate, and disqualify him to hold any office of honor, trust, or profit, under the United States, will remain to be considered.”); Todd Garvey, The Webster and Ingersoll Investigations, in Morton Rosenberg, The Constitution Project, When Congress Comes Calling 289 (2017). 16 House Committees’ Authority to Investigate for Impeachment whether to request the President’s instructions for negotiating the Jay Treaty, Representative Murray concluded that the House could not meddle in treatymaking, but acknowledged that “the subject would be presented under an aspect very different” if the resolution’s supporters had “stated the object for which they called for the papers to be an impeachment.” 5 Annals of Cong. 429–30 (1796). Similarly, in 1846, a House select committee agreed with President Polk’s decision not to turn over requested information regarding State Department expenditures where the House did not act “with a view to an impeachment.” H.R. Rep. No. 29-684, at 4 (1846) (noting that four of the committee’s five members “entirely concur with the President of the United States” in deciding not to “communicate or make [the requested documents] public, except with a view to an impeachment” and that “[n]o dissent from the views of that message was expressed by the House”); see also Mazars USA, 940 F.3d at 761 (Rao, J., dissenting). To take another example, in 1879, the House Judiciary Committee distinguished “[i]nvestigations looking to the impeachment of public officers” from “an ordinary investigation for legislative purposes.” H.R. Rep. No. 45-141, at 2 (1879). Most significantly, during the impeachments of Presidents Nixon and Clinton, the House Judiciary Committee determined that the House must provide express authorization before any committee may exercise compulsory powers in an impeachment investigation. See infra Part II.C.1. Thus, members of the House, like the other branches of government, have squarely recognized the distinction between congressional investigations for impeachment purposes and those for legislative purposes. B. Although the House of Representatives has “the sole Power of Impeachment,” U.S. Const. art. I, § 2, cl. 5 (emphasis added), the associated power to conduct an investigation for impeachment purposes may, like the House’s other investigative powers, be delegated. The full House may make such a delegation by adopting a resolution in exercise of its authority to determine the rules for its proceedings, see id. art. I, § 5, cl. 2, and each House has broad discretion in determining the conduct of its own proceedings. See, e.g., NLRB v. Noel Canning, 573 U.S. 513, 551–52 (2014); United States v. Ballin, 144 U.S. 1, 5 (1892); see also 1 Deschler’s Precedents ch. 5, § 4, at 305−06. But the House must actually exer17 Opinions of the Office of Legal Counsel in Volume 44 cise its discretion by making that judgment in the first instance, and its resolution sets the terms of a committee’s authority. See United States v. Rumely, 345 U.S. 41, 44 (1953). No committee may exercise the House’s investigative powers in the absence of such a delegation. As the Supreme Court has explained in the context of legislative oversight, “[t]he 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 “are endowed with the full power of the Congress to compel testimony.” Watkins, 354 U.S. at 200–01. The same is true for impeachment investigations. 15 Thus, Hamilton recognized, the impeachment power involves a trust of such “delicacy and magnitude” that it “deeply concerns the political reputation and existence of every man engaged in the administration of public affairs.” The Federalist No. 65, at 440. The Founders foresaw that an impeachment effort would “[i]n many cases . . . connect itself with the pre-existing factions” and “inlist all their animosities, partialities, influence and interest on one side, or on the other.” Id. at 439. As a result, they placed the solemn authority to initiate an impeachment in “the representatives of the nation themselves.” Id. at 440. In order to entrust one of its committees to investigate for purposes of impeachment, the full House must “spell out that group’s jurisdiction and purpose.” Watkins, 354 U.S. at 201. Otherwise, a House committee con- When the House first considered impeachment in 1796, Attorney General Charles Lee advised that, “before an impeachment is sent to the Senate, witnesses must be examined, in solemn form, respecting the charges, before a committee of the House of Representatives, to be appointed for that purpose.” Letter for the House of Representatives from Charles Lee, Attorney General, Re: Inquiry into the Official Conduct of a Judge of the Supreme Court of the Northwestern Territory (May 9, 1796), reprinted in 1 Am. State Papers: Misc. 151 (Walter Lowrie & Walter S. Franklin eds., 1834). Because the charges of misconduct concerned the actions of George Turner, a territorial judge, and the witnesses were located in far-away St. Clair County (modern-day Illinois), Lee suggested that the “most solemn” mode of prosecution, an impeachment trial before the Senate, would be “very inconvenient, if not entirely impracticable.” Id. Lee informed the House that President Washington had directed the territorial governor to arrange for a criminal prosecution before the territorial court. See id. The House committee considering the petition about Turner agreed with Lee’s suggestion and recommended that the House take no further action. See Inquiry into the Official Conduct of a Judge of the Supreme Court of the Northwestern Territory (Feb. 27, 1797), reprinted in 1 Am. State Papers: Misc. at 157. 15 18 House Committees’ Authority to Investigate for Impeachment trolled by such a faction could launch open-ended and untethered investigations without the sanction of a majority of the House. Because a committee may exercise the House’s investigative powers only when authorized, the committee’s actions must be within the scope of a resolution delegating authority from the House to the committee. As the D.C. Circuit recently explained, “it matters not whether the Constitution would give Congress authority to issue a subpoena if Congress has given the issuing committee no such authority.” Mazars USA, 940 F.3d at 722; see Dolan, 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.”). In evaluating a committee’s authority, the House’s resolution “is the controlling charter of the committee’s powers,” and, therefore, the committee’s “right to exact testimony and to call for the production of documents must be found in this language.” Rumely, 345 U.S. at 44; see also Watkins, 354 U.S. at 201 (“Those instructions are embodied in the authorizing resolution. That document is the committee’s charter.”); id. at 206 (“Plainly [the House’s] committees are restricted to the missions delegated to them . . . . No witness can be compelled to make disclosures on matters outside that area.”); Exxon Corp. v. FTC, 589 F.2d 582, 592 (D.C. Cir. 1978) (“To issue a valid subpoena, . . . a committee or subcommittee must conform strictly to the resolution establishing its investigatory powers[.]”); United States v. Lamont, 18 F.R.D. 27, 32 (S.D.N.Y. 1955) (Weinfeld, J.) (“No committee of either the House or Senate, and no Senator and no Representative, is free on its or his own to conduct investigations unless authorized. Thus it must appear that Congress empowered the Committee to act, and further that at the time the witness allegedly defied its authority the Committee was acting within the power granted to it.”). While a committee may study some matters without exercising the investigative powers of the House, a committee’s authority to compel the production of documents and testimony depends entirely upon the jurisdiction provided by the terms of the House’s delegation. In Watkins, the Supreme Court relied upon those principles to set aside a conviction for contempt of Congress because of the authorizing resolution’s vagueness. The uncertain scope of the House’s delegation impermissibly created “a wide gulf between the responsibility for the use of investigative power and the actual exercise of that power.” 354 U.S. at 205. If the House wished to authorize the exercise of its investigative power, then it needed to take responsibility for the use of that power, 19 Opinions of the Office of Legal Counsel in Volume 44 because a congressional subpoena, issued with the threat of a criminal contempt citation, necessarily placed “constitutional liberties” in “danger.” Id. The concerns expressed by the Court in Watkins apply with equal, if not greater, force when considering the authority of a House committee to compel the production of documents in connection with investigating impeachment. As John Labovitz, a House impeachment attorney during the Nixon investigation, explained: “[I]mpeachment investigations, because they involve extraordinary power and (at least where the president is being investigated) may have extraordinary consequences, are not to be undertaken in the same manner as run-of-the-mill legislative investigations. The initiation of a presidential impeachment inquiry should itself require a deliberate decision by the House.” John R. Labovitz, Presidential Impeachment 184 (1978). Because a committee possesses only the authorities that have been delegated to it, a committee may not use compulsory process to investigate impeachment without the formal authorization of the House. C. Historical practice confirms that the House must authorize an impeachment inquiry. See, e.g., Zivotofsky v. Kerry, 135 S. Ct. 2076, 2091 (2015) (recognizing that “[i]n separation-of-powers cases,” the Court has placed “significant weight” on “accepted understandings and practice”); Noel Canning, 573 U.S. at 514 (same). The House has expressly authorized every impeachment investigation of a President, including by identifying the investigative committee and authorizing the use of compulsory process. The same thing has been true for nearly all impeachment investigations of other executive officials and judges. While committees have sometimes studied a proposed impeachment resolution or reviewed available information without conducting a formal investigation, in nearly every case in which the committee resorted to compulsory process, the House expressly authorized the impeachment investigation. That practice was foreseen as early as 1796. When Washington asked his Cabinet for opinions about how to respond to the House’s request for the papers associated with the Jay Treaty, the Secretary of the Treasury, Oliver Wolcott Jr., explained that “the House of Representatives has no right to demand papers” outside its legislative function “[e]xcept when an Impeachment is proposed & a formal enquiry instituted.” Letter for George 20 House Committees’ Authority to Investigate for Impeachment Washington from Oliver Wolcott Jr. (Mar. 26, 1796), reprinted in 19 The Papers of George Washington: Presidential Series 611–12 (David R. Hoth ed., 2016) (emphasis added). From the very first impeachment, the House has recognized that a committee would require a delegation to conduct an impeachment inquiry. In 1797, when House members considered whether a letter contained evidence of criminal misconduct by Senator William Blount, they sought to confirm Blount’s handwriting but concluded that the Committee of the Whole did not have the power of taking evidence. See 7 Annals of Cong. 456–58 (1797); 3 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States § 2294, at 644–45 (1907). Thus, the committee “rose,” and the House itself took testimony. 3 Hinds’ Precedents § 2294, at 646. Two days later, the House appointed a select committee to “prepare and report articles of impeachment” and vested in that committee the “power to send for persons, papers, and records.” 7 Annals of Cong. at 463–64, 466; 3 Hinds’ Precedents § 2297, at 648. 16 As we discuss in this section, we have identified dozens of other instances where the House, in addition to referring proposed articles of impeachment, authorized formal impeachment investigations. Against this weighty historical record, which involves nearly 100 authorized impeachment investigations, the outliers are few and far between. 17 In 1879, it appears that a House committee, which was expressly authorized to conduct an oversight investigation into the administration of the U.S. consulate in Shanghai, ultimately investigated and recommended that the former consul-general and former vice consul-general be impeached. In addition, between 1986 and 1989, the Judiciary Committee considered the impeachment of three federal judges who had been criminally prosecuted (two of whom had been convicted). The Judiciary Committee pursued impeachment before there had been any House vote, and issued subpoenas in two of those inquiries. Since then, however, the Judiciary Committee reaffirmed during the impeachment of President After the House impeached Senator Blount, the Senate voted to dismiss the charges on the ground that a Senator is not a civil officer subject to impeachment. See 3 Hinds’ Precedents § 2318, at 678–80. 17 A 2007 overview concluded that “[t]here have been approximately 94 identifiable impeachment-related inquiries conducted by Congress[.]” H.R. Doc. No. 109-153, at 115 (2007). Since 2007, two more judges have been impeached following authorized investigations. 16 21 Opinions of the Office of Legal Counsel in Volume 44 Clinton that, in order to conduct an impeachment investigation, it needed an express delegation of investigative authority from the House. And in all subsequent cases the House has hewed to the well-established practice of authorizing each impeachment investigation. The U.S. District Court for the District of Columbia recently reviewed a handful of historical examples and concluded that House committees may conduct impeachment investigations without a vote of the full House. See In re Application of the Comm. on the Judiciary, 2019 WL 5485221, at *26–28. Yet, as the discussion below confirms, the district court misread the lessons of history. 18 The district court treated the House Judiciary Committee’s preliminary inquiries in the Clinton and Nixon impeachments as investigations, without recognizing that, in both cases, the committee determined that a full House vote was necessary before it could issue subpoenas. The district court also treated the 1980s judicial inquiries as if they represented a rule of practice, rather than a marked deviation from the dozens of occasions where the House recognized the need to adopt a formal resolution to delegate its investigative authority. As our survey below confirms, the historical practice with respect to Presidents, other executive officers, and judges is consistent with the structure of our Constitution, which requires the House, as the “sole” holder of impeachment power, to authorize any impeachment investigation that a committee may conduct on its behalf. The district court’s erroneous conclusions rested upon the arguments offered by the House Judiciary Committee, which relied principally upon the judicial outliers from the 1980s, a misunderstanding of the Nixon impeachment inquiry, and a misreading of the committee’s subpoena power under the House Rules. See Application at 33−34, In re Application of the Comm. on the Judiciary (D.D.C. July 26, 2019); Reply of the Committee on the Judiciary, U.S. House of Representatives, in Support of Its Application for an Order Authorizing the Release of Certain Grand Jury Materials, at 16 n.19, In re Application of the Comm. on the Judiciary (D.D.C. Sept. 30, 2019). HPSCI and the Judiciary Committee later reiterated these arguments in their reports, each contending that executive branch officials had “obstructed” the House’s impeachment inquiry by declining to comply with the pre-October 31 impeachment-related subpoenas. H.R. Rep. No. 116-335, at 168–72, 175–77 (2019); H.R. Rep. No. 116-346, at 10, 13–16 (2019). But those reports asserted that the pre-October 31 subpoenas were authorized because the committees misunderstood the historical practice concerning the House’s impeachment inquiries (as we discuss in Part II.C) and they misread the committees’ subpoena authority under the House Rules (as we discuss in Part III.A). 18 22 House Committees’ Authority to Investigate for Impeachment 1. While many Presidents have been the subject of less-formal demands for impeachment, at least eleven have faced resolutions introduced in the House for the purpose of initiating impeachment proceedings. 19 In some cases, the House formally voted to reject opening a presidential impeachment investigation. In 1843, the House rejected a resolution calling for an investigation into the impeachment of President Tyler. See Cong. Globe, 27th Cong., 3d Sess. 144−46 (1843). In 1932, the House voted by a wide margin to table a similar resolution introduced against President Hoover. See 76 Cong. Rec. 399–402 (1932). In many other cases, the House simply referred impeachment resolutions to the Judiciary Committee, which took no further action before the end of the Congress. But, in three instances before President Trump, the House moved forward with investigating the impeachment of a President. 20 Each of those presidential impeachments advanced to the investigative stage only after the House See, e.g., Cong. Globe, 27th Cong., 3d Sess. 144, 146 (1843) (John Tyler); Cong. Globe, 39th Cong., 2d Sess. 320 (1867) (Andrew Johnson); 28 Cong. Rec. 5627, 5650 (1896) (Grover Cleveland); 76 Cong. Rec. 399–402 (1932) (Herbert Hoover); H.R. Res. 607, 82d Cong. (1952) (Harry Truman); H.R. Res. 625, 93d Cong. (1973) (Richard Nixon); H.R. Res. 370, 98th Cong. (1983) (Ronald Reagan); H.R. Res. 34, 102d Cong. (1991) (George H.W. Bush); H.R. Res. 525, 105th Cong. (1998) (Bill Clinton); H.R. Res. 1258, 110th Cong. (2008) (George W. Bush); H.R. Res. 13, 106th Cong. (2019) (Donald Trump). 20 In 1860, the House authorized an investigation into the actions of President Buchanan, but that investigation was not styled as an impeachment investigation. See Cong. Globe, 36th Cong., 1st Sess. 997–98 (1860) (resolution establishing a committee of five members to “investigat[e] whether the President of the United States, or any other officer of the government, ha[d], by money, patronage, or other improper means, sought to influence the action of Congress” or “by combination or otherwise, . . . attempted to prevent or defeat, the execution of any law”). It appears to have been understood by the committee as an oversight investigation. See H.R. Rep. No. 36-648, at 1–28 (1860). Buchanan in fact objected to the House’s use of its legislative jurisdiction to circumvent the protections traditionally provided in connection with impeachment. See Message for the U.S. House of Representatives from James Buchanan (June 22, 1860), reprinted in 5 A Compilation of the Messages and Papers of the Presidents 625 (James D. Richardson ed., 1897) (objecting that if the House suspects presidential misconduct, it should “transfer the question from [its] legislative to [its] accusatory jurisdiction, and take care that in all the preliminary judicial proceedings preparatory to the vote of articles of impeachment the accused should enjoy the benefit of cross-examining the witnesses and all the other safeguards with which the Constitution surrounds every American citizen”); see also Mazars USA, 940 F.3d at 762 (Rao, J., dissenting) (discussing the episode). 19 23 Opinions of the Office of Legal Counsel in Volume 44 adopted a resolution expressly authorizing a committee to conduct the investigation. In no case did the committee use compulsory process until the House had expressly authorized the impeachment investigation. The impeachment investigation of President Andrew Johnson. On January 7, 1867, the House adopted a resolution authorizing the “Committee on the Judiciary” to “inquire into the official conduct of Andrew Johnson . . . and to report to this House whether, in their opinion,” the President “has been guilty of any act, or has conspired with others to do acts, which, in contemplation of the Constitution, are high crimes or misdemeanors.” Cong. Globe, 39th Cong., 2d Sess. 320–21 (1867); see also 3 Hinds’ Precedents § 2400, at 824. The resolution conferred upon the committee the “power to send for persons and papers and to administer the customary oath to witnesses.” Cong. Globe, 39th Cong., 2d Sess. 320 (1867). The House referred a second resolution to the Judiciary Committee on February 4, 1867. Id. at 991; 3 Hinds’ Precedents § 2400, at 824. 21 Shortly before that Congress expired, the committee reported that it had seen “sufficient testimony . . . to justify and demand a further prosecution of the investigation.” H.R. Rep. No. 39-31, at 2 (1867). On March 7, 1867, the House in the new Congress adopted a resolution that authorized the committee “to continue the investigation authorized” in the January 7 resolution and to “send for persons and papers” and administer oaths. Cong. Globe, 40th Cong., 1st Sess. 18, 25 (1867); 3 Hinds’ Precedents § 2401, at 825–26. The committee recommended articles of impeachment, but the House rejected those articles on December 7, 1867. See Cong. Globe, 40th Cong., 2d Sess. 67–68 (1867). In early 1868, however, the House adopted resolutions authorizing another investigation, with compulsory powers, by the Committee on Reconstruction and transferred to that committee the evidence from the Judiciary Committee’s 21 The district court’s recent decision in In re Application of the Committee on the Judiciary misreads Hinds’ Precedents to suggest that the House Judiciary Committee (which the court called “HJC”) began investigating President Johnson’s impeachment without any authorizing resolution. According to the district court, “a resolution ‘authoriz[ing]’ HJC ‘to inquire into the official conduct of Andrew Johnson’ was passed after HJC ‘was already considering the subject.’” 2019 WL 5485221, at *27 (quoting 3 Hinds’ Precedents § 2400, at 824). In fact, the committee was “already considering the subject” at the time of the February 4 resolution described in the quoted sentence because, as explained in the text above, the House had previously adopted a separate resolution authorizing an impeachment investigation. See Cong. Globe, 39th Cong., 2d Sess. 320–21 (1867); 3 Hinds’ Precedents § 2400, at 824. 24 House Committees’ Authority to Investigate for Impeachment earlier investigation. See Cong. Globe, 40th Cong., 2d Sess. 784–85, 1087 (1868); 3 Hinds’ Precedents § 2408, at 845. On February 21, 1868, the impeachment effort received new impetus when Johnson removed the Secretary of War without the Senate’s approval, contrary to the terms of the Tenure of Office Act, which Johnson (correctly) held to be an unconstitutional limit on his authority. See Cong. Globe, 40th Cong., 2d Sess. 1326–27 (1868); 3 Hinds’ Precedents § 2408–09, at 845–47; see also Myers v. United States, 272 U.S. 52, 176 (1926) (finding that provision of the Tenure of Office Act “was invalid”). That day, the Committee on Reconstruction reported an impeachment resolution to the House, which was debated on February 22 and passed on February 24. Cong. Globe, 40th Cong., 2d Sess. 1400 (1868); 3 Hinds’ Precedents §§ 2409–12, at 846–51. The impeachment investigation of President Nixon. Although many resolutions were introduced in support of President Nixon’s impeachment earlier in 1973, the House’s formal impeachment inquiry arose in the months following the “Saturday Night Massacre,” during which President Nixon caused the termination of Special Prosecutor Archibald Cox at the cost of the resignations of his Attorney General and Deputy Attorney General. See Letter Directing the Acting Attorney General to Discharge the Director of the Office of Watergate Special Prosecution Force (Oct. 20, 1973), Pub. Papers of Pres. Richard Nixon 891 (1973). Immediately thereafter, House members introduced resolutions calling either for the President’s impeachment or for the opening of an investigation. 22 The Speaker of the House referred the resolutions calling for an investigation to the Rules Committee and those calling for impeachment to the Judiciary Committee. See Office of Legal Counsel, U.S. Dep’t of Justice, Legal Aspects of Impeachment: An Overview at 40 (Feb. 1974) (“Legal Aspects of Impeachment ”); 3 Deschler’s Precedents ch. 14, § 5, at 2020. Following the referrals, the Judiciary Committee “beg[a]n an inquiry into whether President Nixon ha[d] committed any offenses that could lead to impeachment,” an exercise that the committee considered “preliminary.” Richard L. Madden, Democrats Agree on House Inquiry into Nixon’s Acts, N.Y. Times, Oct. 23, 1973, at 1. The committee started collecting publicly available materials, and Chairman Peter Rodino Jr. stated that he 22 See, e.g., H.R. Res. 625, 631, 635, and 638, 93d Cong. (1973) (impeachment); H.R. Res. 626, 627, 628, 636, and 637, 93d Cong. (1973) (Judiciary Committee or subcommittee investigation). 25 Opinions of the Office of Legal Counsel in Volume 44 would “set up a separate committee staff to ‘collate’ investigative files from Senate and House committees that have examined a variety of charges against the Nixon Administration.” James M. Naughton, Rodino Vows Fair Impeachment Inquiry, N.Y. Times, Oct. 30, 1973, at 32. Although the committee “adopted a resolution permitting Mr. Rodino to issue subpoenas without the consent of the full committee,” James M. Naughton, House Panel Starts Inquiry on Impeachment Question, N.Y. Times, Oct. 31, 1973, at 1, no subpoenas were ever issued under that purported authority. Instead, the committee “delayed acting” on the impeachment resolutions. James M. Naughton, House Unit Looks to Impeachment, N.Y. Times, Dec. 2, 1973, at 54. By late December, the committee had hired a specialized impeachment staff. A Hard-Working Legal Adviser: John Michael Doar, N.Y. Times, Dec. 21, 1973, at 20. The staff continued “‘wading through the mass of material already made public,’” and the committee’s members began considering “the areas in which the inquiry should go.” Bill Kovach, Vote on Subpoena Could Test House on Impeachment, N.Y. Times, Jan. 8, 1974, at 14; see also Staff of the H. Comm. on the Judiciary, 93d Cong., Rep. on Work of the Impeachment Inquiry Staff as of February 5, 1974, at 2–3 (1974) (noting that the staff was “first collecting and sifting the evidence available in the public domain,” then “marshaling and digesting the evidence available through various governmental investigations”). By January 1974, the committee’s actions had consisted of digesting publicly available documents and prior impeachment precedents. That was consistent with the committee’s “only mandate,” which was to “study more than a dozen impeachment resolutions submitted” in 1973. James M. Naughton, Impeachment Panel Seeks House Mandate for Inquiry, N.Y. Times, Jan. 25, 1974, at 1. In January, the committee determined that a formal investigation was necessary, and it requested “an official House mandate to conduct the inquiry,” relying upon the “precedent in each of the earlier [impeachment] inquiries.” Id. at 17. On January 7, Chairman Rodino “announced that the Committee’s subpoena power does not extend to impeachment and that . . . the Committee would seek express authorization to subpoena persons and documents with regard to the impeachment inquiry.” Legal Aspects of Impeachment at 43; see also Richard L. Lyons, GOP Picks Jenner as Counsel, Wash. Post, Jan. 8, 1974, at A1, A6 (“Rodino said the committee will ask the House when it reconvenes Jan. 21 to give it power to subpoena persons and documents for the inquiry. The committee’s subpoena power does not now extend to impeachment proceedings, he said.”). As 26 House Committees’ Authority to Investigate for Impeachment the House Parliamentarian later explained, the Judiciary Committee’s general authority to conduct investigations and issue subpoenas “did not specifically include impeachments within the jurisdiction of the Committee on the Judiciary,” and it was therefore “considered necessary for the House to specifically vest the Committee on the Judiciary with the investigatory and subpena power to conduct the impeachment investigation.” 3 Deschler’s Precedents ch. 14, § 15.2, at 2172 (Parliamentarian’s Note). On February 6, 1974, the House approved Resolution 803, which “authorized and directed” the Judiciary Committee “to investigate fully and completely whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach Richard M. Nixon, President of the United States of America.” H.R. Res. 803, 93d Cong. § 1. The resolution specifically authorized the committee “to require . . . by subpena or otherwise . . . the attendance and testimony of any person” and “the production of such things” as the committee “deem[ed] necessary” to its investigation. Id. § 2(a). Speaking on the House floor, Chairman Rodino described the resolution as a “necessary step” to confer the House’s investigative powers on the Judiciary Committee: We have reached the point when it is important that the House explicitly confirm our responsibility under the Constitution. We are asking the House of Representatives, by this resolution, to authorize and direct the Committee on the Judiciary to investigate the conduct of the President of the United States . . . . As part of that resolution, we are asking the House to give the Judiciary Committee the power of subpena in its investigations. Such a resolution has always been passed by the House. . . . It is a necessary step if we are to meet our obligations. .... . . . The sole power of impeachment carries with it the power to conduct a full and complete investigation of whether sufficient grounds for impeachment exist or do not exist, and by this resolution these investigative powers are conferred to their full extent upon the Committee on the Judiciary. 120 Cong. Rec. 2350–51 (1974) (emphases added). During the debate, others recognized that the resolution would delegate the House’s investigative powers to the Judiciary Committee. See, e.g., id. at 2361 (statement 27 Opinions of the Office of Legal Counsel in Volume 44 of Rep. Rostenkowski) (“By delegating to the Judiciary Committee the powers contained in this resolution, we will be providing that committee with the resources it needs to inform the whole House of the facts of this case.”); id. at 2362 (statement of Rep. Boland) (“House Resolution 803 is intended to delegate to the Committee on the Judiciary the full extent of the powers of this House in an impeachment proceeding[]—both as to the persons and types of things that may be subpenaed and the methods for doing so.”). Only after the Judiciary Committee had received authorization from the House did it request and subpoena tape recordings and documents from President Nixon. See H.R. Rep. No. 93-1305, at 187 (1974). 23 The impeachment investigation of President Clinton. On September 9, 1998, Independent Counsel Kenneth W. Starr, acting under 28 U.S.C. § 595(c), advised the House of Representatives that he had uncovered substantial and credible information that he believed could constitute grounds for the impeachment of President Clinton. 18 Deschler’s Precedents app. at 548–49 (2013). Two days later, the House adopted a resolution that referred the matter, along with Starr’s report and 36 boxes of evidence, to the Judiciary Committee. H.R. Res. 525, 105th Cong. (1998). The House directed that committee to review the report and “determine whether sufficient grounds exist to recommend to the House that an impeachment inquiry be commenced.” Id. § 1. The Rules Committee’s Chairman emphasized that the House would need to adopt a subsequent resolution if it decided to authorize an impeachment inquiry: “[T]his resolution does not authorize or direct an impeachment inquiry. . . . It merely provides the appropriate parameters for the Committee on the Judiciary . . . to . . . make a recommendation to the House as to whether we should commence an impeachment inquiry.” 144 Cong. Rec. 20021 (1998) (statement of Rep. Solomon). A New York Times article the following day characterized House Resolution 803 as “formally ratif [ying] the impeachment inquiry begun by the committee [the prior] October.” James M. Naughton, House, 410-4, Gives Subpoena Power in Nixon Inquiry, N.Y. Times, Feb. 7, 1974, at 1. But the resolution did not grant after-the-fact authorization for any prior action. To the contrary, the resolution “authorized and directed” a future investigation, including by providing subpoena power. In the report recommending adoption of the resolution, the committee likewise described its plans in the future tense: “It is the intention of the committee that its investigation will be conducted in all respects on a fair, impartial and bipartisan basis.” H.R. Rep. No. 93-774, at 3 (1974). 23 28 House Committees’ Authority to Investigate for Impeachment On October 7, 1998, the Judiciary Committee did recommend that there be an investigation for purposes of impeachment. As explained in the accompanying report: “[T]he Committee decided that it must receive authorization from the full House before proceeding on any further course of action. Because impeachment is delegated solely to the House of Representatives by the Constitution, the full House of Representatives should be involved in critical decision making regarding various stages of impeachment.” H.R. Rep. No. 105-795, at 24 (emphasis added). The committee also observed that “a resolution authorizing an impeachment inquiry into the conduct of a president is consistent with past practice,” citing the resolutions for Presidents Johnson and Nixon and observing that “numerous other inquiries were authorized by the House directly, or by providing investigative authorities, such as deposition authority, to the Committee on the Judiciary.” Id. The next day, the House voted to authorize the Judiciary Committee to “investigate fully and completely whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach William Jefferson Clinton, President of the United States of America.” H.R. Res. 581, 105th Cong. § 1 (1998). The resolution authorized the committee “to require . . . by subpoena or otherwise . . . the attendance and testimony of any person” and “the production of . . . things,” and to require the furnishing of information “by interrogatory.” Id. § 2(a). “On November 5, 1998,” as part of its investigation, “the Committee presented President Clinton with 81 requests for admission,” which the Committee explained that it “would have . . . compelled by subpoena” had President Clinton not complied. H.R. Rep. No. 105-830, at 77, 122 (1998). And the Committee then “approved the issuance of subpoenas for depositions and materials” from several witnesses. 144 Cong. Rec. D1210–11 (daily ed. Dec. 17, 1998). In discussing the Clinton precedent, the district court in In re Application of the Committee on the Judiciary treated the D.C. Circuit’s approval of the disclosure of Starr’s report and associated grand-jury information as evidence that the Judiciary Committee may “commence an impeachment investigation” without a House vote. 2019 WL 5485221, at *27 & n.36. But the D.C. Circuit did not authorize that disclosure because of any pending House investigation. It did so because a statutory provision required an independent counsel to “advise the House of Representatives of any substantial and credible information which such independent counsel receives . . . that may constitute grounds for an impeachment.” 29 Opinions of the Office of Legal Counsel in Volume 44 28 U.S.C. § 595(c) (emphasis added). And the D.C. Circuit viewed the report as reflecting “information of the type described in 28 U.S.C. § 595(c).” In re Madison Guar. Sav. & Loan Ass’n, Div. No. 94-1 (D.C. Cir. Spec. Div. July 7, 1998), reprinted in H.R. Doc. No. 105-331, pt. 1, at 10 (1998). The order authorizing the transmission of that information to the House did not imply that any committee was conducting an impeachment investigation. To the contrary, after the House received the information, “no person had access to” it until after the House adopted a resolution referring the matter to the Judiciary Committee. H.R. Rep. No. 105795, at 5. And the House then adopted a second resolution (Resolution 581) to authorize a formal investigation. In other words, the House voted to authorize the Judiciary Committee both to review the Starr evidence and to conduct an impeachment investigation. Neither the D.C. Circuit nor the Judiciary Committee suggested that any committee could have taken such action on its own. 2. The House has historically followed these same procedures in considering impeachment resolutions against executive branch officers other than the President. In many cases, an initial resolution laying out charges of impeachment or authorizing an investigation was referred to a select or standing committee. 24 Following such a referral, the designated committee 24 As with Presidents, many of these resolutions remained with the committees until they expired at the end of the Congress. Several merely articulated allegations of impeachment. See, e.g., H.R. Res. 1028, 115th Cong. (2018) (Deputy Attorney General Rod Rosenstein); H.R. Res. 417, 114th Cong. (2015) (Administrator of the Environmental Protection Agency Regina McCarthy); H.R. Res. 411, 113th Cong. (2013) (Attorney General Eric Holder); H.R. Res. 333, 110th Cong. (2007) (Vice President Richard Cheney); H.R. Res. 629, 108th Cong. (2004) (Secretary of Defense Donald Rumsfeld); H.R. Res. 805, 95th Cong. (1977) (United Nations Ambassador Andrew Young); H.R. Res. 274, 95th Cong. (1977) (Commissioner of the Federal Trade Commission Paul Dixon); H.R. Res. 881, 94th Cong. (1975) (U.S. Attorney Jonathan Goldstein and Principal Assistant U.S. Attorney Bruce Goldstein); H.R. Res. 647, 94th Cong. (1975) (Ambassador to Iran Richard Helms); H.R. Res. 547, 94th Cong. (1975) (Special Crime Strike Force Prosecutor Liam Coonan). Others called for an investigation. See, e.g., H.R. Res. 589, 110th Cong. (2007) (Attorney General Alberto Gonzales); H.R. Res. 582, 105th Cong. (1998) (Independent Counsel Kenneth Starr); H.R. Res. 102, 99th Cong. (1985) (Chairman of the Board of Governors of the Federal Reserve System Paul Volcker); H.R. Res. 101, 99th Cong. (1985) (same and others); H.R. Res. 1025, 95th Cong. (1978) (Attorney General Griffin Bell); H.R. Res. 1002, 95th Cong. (1978) (same); H.R. Res. 569, 93d 30 House Committees’ Authority to Investigate for Impeachment reviewed the matter and considered whether to pursue a formal impeachment inquiry—it did not treat the referral as stand-alone authorization to conduct an investigation. When a committee concluded that the charges warranted investigation, it reported to the full House, which then considered whether to adopt a resolution to authorize a formal investigation. For example, in March 1867, the House approved a resolution directing the Committee on Public Expenditures “to inquire into the conduct of Henry A. Smythe, collector of the port of New York.” Cong. Globe, 40th Cong., 1st Sess. 132 (1867); see also id. (noting that the resolution had been modified following debate “so as to leave out that part about bringing articles of impeachment”). Weeks later, the House voted to authorize an impeachment investigation. Id. at 290 (authorizing the investigating committee to “send for persons and papers”). The House followed this same procedure in 1916 for U.S. Attorney H. Snowden Marshall. H.R. Res. 90, 64th Cong. (1916) (initial resolution referred to the Judiciary Committee); H.R. Res. 110, 64th Cong. (1916) (resolution approving the investigation contemplated in the initial resolution). And the process repeated in 1922 for Attorney General Harry Daugherty. H.R. Res. 425, 67th Cong. (1922) (referring the initial resolution to the committee); H.R. Res. 461, 67th Cong. (1922) (resolution approving the investigation contemplated in the initial resolution). In a few instances, the House asked committees to draft articles of impeachment without calling for any additional impeachment investigation. For example, in 1876, after uncovering “unquestioned evidence of the malfeasance in office by General William W. Belknap” (who was then Secretary of War) in the course of another investigation, the House approved a resolution charging the Committee on the Judiciary with the responsibility to “prepare and report without unnecessary delay suitable articles of impeachment.” 4 Cong. Rec. 1426, 1433 (1876). When a key witness left the country, however, the committee determined that additional investigation was warranted, and it asked to be authorized “to take Cong. (1973) (Vice President Spiro Agnew); H.R. Res. 67, 76th Cong. (1939) (Secretary of Labor Frances Perkins and others); 28 Cong. Rec. 114, 126 (1895) (Ambassador to Great Britain Thomas Bayard); 16 Cong. Rec. 17−19 (1884) (U.S. Marshal Lot Wright); Cong. Globe, 40th Cong., 1st Sess. 778−79 (1867) (Minister to Great Britain Charles Francis Adams). On occasion, the House voted to table these resolutions instead of referring them to a committee. See, e.g., H.R. Res. 545, 105th Cong. (1998) (resolution of impeachment for Independent Counsel Kenneth Starr); H.R. Res. 1267, 95th Cong. (1978) (resolution of impeachment for Ambassador to the United Nations Andrew Young). 31 Opinions of the Office of Legal Counsel in Volume 44 further proof ” and “to send for persons and papers” in its search for alternative evidence. Id. at 1564, 1566; see also 3 Hinds’ Precedents §§ 2444–45, at 902–04. In some cases, the House declined to authorize a committee to investigate impeachment with the aid of compulsory process. In 1873, the House authorized the Judiciary Committee “to inquire whether anything” in testimony presented to a different committee implicating Vice President Schuyler Colfax “warrants articles of impeachment of any officer of the United States not a member of this House, or makes it proper that further investigation should be ordered in his case.” Cong. Globe, 42d Cong., 3d Sess. 1545 (1873); see 3 Hinds’ Precedents § 2510, at 1016–17. No further investigation was authorized. A similar sequence occurred in 1917 in the case of an impeachment resolution offered against members of the Federal Reserve Board. See 54 Cong. Rec. 3126−30 (1917) (impeachment resolution); H.R. Rep. No. 64-1628, at 1 (1917) (noting that following the referral of the impeachment resolution, the Committee had reviewed available information and determined that no further proceedings were warranted). In 1932, the House referred to the Judiciary Committee a resolution calling for the investigation of the possible impeachment of Secretary of the Treasury Andrew Mellon. H.R. Res. 92, 72d Cong. (1932); see also 3 Deschler’s Precedents ch. 14, § 14.1, at 2134– 39. The following month, the House approved a resolution discontinuing any investigation of the charges. 75 Cong. Rec. 3850 (1932); see also 3 Deschler’s Precedents ch. 14, § 14.2, at 2139–40. Most recently, in the 114th Congress, the House referred to the Judiciary Committee resolutions concerning the impeachment of the Commissioner of the Internal Revenue Service, John Koskinen. See H.R. Res. 494, 114th Cong. (2015); H.R. Res. 828, 114th Cong. (2016). Shortly after an attempt to force a floor vote on one of the resolutions, Koskinen voluntarily appeared before the committee at a hearing. See Impeachment Articles Referred on John Koskinen (Part III): Hearing Before the H. Comm. on the Judiciary, 114th Cong. 2 (2016). The ranking minority member, Representative John Conyers, observed that, despite the title, “this is not an impeachment hearing” because, “[a]ccording to parliamentarians of the House past and present, the impeachment process does not begin until the House actually votes to authorize this Committee to investigate the charges.” Id. at 3; see also id. at 30 (similar statement by Rep. Johnson). During the hearing, Commissioner Koskinen offered to provide a list of supporting witnesses who could be cross-examined “if 32 House Committees’ Authority to Investigate for Impeachment the Committee decided it wanted to go to a full-scale impeachment process, which I understand this is not.” Id. at 45. Two months later, one of the impeachment resolutions was briefly addressed on the floor of the House, and again referred to the Judiciary Committee, but without providing any investigative authority. See 162 Cong. Rec. H7251–54 (daily ed. Dec. 6, 2016). The committee never sought to compel the appearance of Koskinen or any other witness, and the committee does not appear to have taken any further action before the Congress expired. In his 1978 book on presidential impeachment, former House impeachment attorney John Labovitz observed that there were a “few exceptions,” “mostly in the 1860s and 1870s,” to the general rule that “past impeachment investigations ha[ve] been authorized by a specific resolution conferring subpoena power.” Labovitz, Presidential Impeachment at 182 & n.18. In our review of the history, we have identified one case from that era where a House committee commenced a legislative oversight investigation and subsequently moved, without separate authorization, to consider impeachment. 25 But the overwhelming historical practice to the contrary confirms the Judiciary Committee’s well-considered conclusions in 1974 and 1998 that a committee requires specific authorization from the House before it may use compulsory process to investigate for impeachment purposes. 25 In 1878, the Committee on Expenditures in the State Department, which was charged with investigative authority for “the exposing of frauds or abuses of any kind,” 7 Cong. Rec. 287, 290 (1878), was referred an investigation into maladministration at the consulate in Shanghai during the terms of Consul-General George Seward and Vice Consul-General O.B. Bradford, id. at 504, 769. Eventually, the committee began to consider Seward’s impeachment, serving him with a subpoena for testimony and documents, in response to which he asserted his privilege against self-incrimination. See 3 Hinds’ Precedents § 2514, at 1023–24; H.R. Rep. No. 45-141, at 1–3 (1879). The committee recommended articles of impeachment, but the House declined to act before the end of the Congress. See 8 Cong. Rec. 2350–55 (1879); 3 Hinds’ Precedents § 2514, at 1025. During this same period, the Committee on Expenditures reported proposed articles of impeachment against Bradford but recommended “that the whole subject be referred to the Committee on the Judiciary” for further consideration. H.R. Rep. No. 45818, at 7 (1878). The House agreed to the referral, but no further action was taken. 7 Cong. Rec. at 3667. 33 Opinions of the Office of Legal Counsel in Volume 44 3. The House has followed the same practice in connection with nearly all impeachment investigations involving federal judges. Committees sometimes studied initial referrals, but they waited for authorization from the full House before conducting any formal impeachment investigation. Three cases from the late 1980s departed from that pattern, but the House has returned during the past three decades to the historical baseline, repeatedly ensuring that the Judiciary Committee had a proper delegation for each impeachment investigation. The practice of having the House authorize each specific impeachment inquiry is reflected in the earliest impeachment investigations involving judges. In 1804, the House considered proposals to impeach two judges: Samuel Chase, an associate justice of the Supreme Court, and Richard Peters, a district judge. See 3 Hinds’ Precedents § 2342, at 711–16. There was a “lengthy debate” about whether the evidence was appropriate to warrant the institution of an inquiry. Id. at 712. The House then adopted a resolution appointing a select committee “to inquire into the official conduct” of Chase and Peters “and to report” the committee’s “opinion whether” either of the judges had “so acted, in their judicial capacity, as to require the interposition of the constitutional power of this House.” 13 Annals of Cong. 850, 875–76 (1804); 3 Hinds’ Precedents § 2342, at 715. A few days later, another resolution “authorized” the committee “to send for persons, papers, and records.” 13 Annals of Cong. at 877; see also 3 Hinds’ Precedents § 2342, at 715. At the conclusion of its investigation, the committee recommended that Chase, but not Peters, be impeached. 3 Hinds’ Precedents § 2343, at 716. The House thereafter agreed to a resolution impeaching Chase. Id. at 717. Congress recessed before the Senate could act, but, during the next Congress, the House appointed an almost identical select committee, which was “given no power of investigation.” Id. §§ 2343–44, at 717–18. The committee recommended revised articles of impeachment against Chase, which were again adopted by the House. Id. § 2344, at 718–19. In 1808, the House again separately authorized an investigation when it considered whether Peter Bruin, a Mississippi territorial judge, should be impeached for “neglect of duty and drunkenness on the bench.” Id. § 2487, at 983–84. A member of the House objected “that it would hardly be dignified for the Congress to proceed to an impeachment” based on the territorial legislature’s referral and proposed the appointment of a committee “to inquire into the proprie34 House Committees’ Authority to Investigate for Impeachment ty of impeaching.” Id. at 984; see 18 Annals of Cong. 2069 (1808). The House then passed a resolution forming a committee to conduct an inquiry, which included the “power to send for persons, papers, and records” but, like most inquiries to follow, did not result in impeachment. 18 Annals of Cong. at 2189; 3 Hinds’ Precedents § 2487, at 984. Over the course of more than two centuries thereafter, members of the House introduced resolutions to impeach, or to investigate for potential impeachment, dozens more federal judges, and the House continued, virtually without exception, to provide an express authorization before any committee proceeded to exercise investigative powers. 26 In one 1874 case, the Judiciary Committee realized only after witnesses had traveled from Arkansas that it could not find any resolution granting it compulsory powers to investigate previously referred charges against Judge William Story. See 2 Cong. Rec. 1825, 3438 (1874); 3 Hinds’ Precedents § 2513, at 1023. In order to “cure” that “defect,” the committee reported a privileged resolution to the floor of the House that would grant the committee “power to send for persons and papers” as part of the impeachment invesSee, e.g., 3 Hinds’ Precedents § 2489, at 986 (William Van Ness, Mathias Tallmadge, and William Stephens, 1818); id. § 2490, at 987 (Joseph Smith, 1825); id. § 2364, at 774 (James Peck, 1830); id. § 2492, at 990 (Alfred Conkling, 1830); id. § 2491, at 989 (Buckner Thurston, 1837); id. § 2494, at 993–94 (P.K. Lawrence, 1839); id. §§ 2495, 2497, 2499, at 994, 998, 1003 (John Watrous, 1852–60); id. § 2500, at 1005 (Thomas Irwin, 1859); id. § 2385, at 805 (West Humphreys, 1862); id. § 2503, at 1008 (anonymous justice of the Supreme Court, 1868); id. § 2504, at 1008–09 (Mark Delahay, 1872); id. § 2506, at 1011 (Edward Durell, 1873); id. § 2512, at 1021 (Richard Busteed, 1873); id. § 2516, at 1027 (Henry Blodgett, 1879); id. §§ 2517–18, at 1028, 1030–31 (Aleck Boarman, 1890–92); id. § 2519, at 1032 (J.G. Jenkins, 1894); id. § 2520, at 1033 (Augustus Ricks, 1895); id. § 2469, at 949–50 (Charles Swayne, 1903); 6 Clarence Cannon, Cannon’s Precedents of the House of Representatives of the United States § 498, at 685 (1936) (Robert Archbald, 1912); id. § 526, at 746–47 (Cornelius H. Hanford, 1912); id. § 527, at 749 (Emory Speer, 1913); id. § 528, at 753 (Daniel Wright, 1914); id. § 529, at 756 (Alston Dayton, 1915); id. § 543, at 777–78 (William Baker, 1924); id. § 544, at 778–79 (George English, 1925); id. § 549, at 789–90 (Frank Cooper, 1927); id. § 550, at 791–92 (Francis Winslow, 1929); id. § 551, at 793 (Harry Anderson, 1930); id. § 552, at 794 (Grover Moscowitz, 1930); id. § 513, at 709–10 (Harold Louderback, 1932); 3 Deschler’s Precedents ch. 14, § 14.4, at 2143 (James Lowell, 1933); id. § 18.1, at 2205– 06 (Halsted Ritter, 1933); id. § 14.10, at 2148 (Albert Johnson and Albert Watson, 1944); H.R. Res. 1066, 94th Cong. (1976) (certain federal judges); H.R. Res. 966, 95th Cong. (1978) (Frank Battisti); see also 51 Cong. Rec. 6559–60 (1914) (noting passage of authorizing resolution for investigation of Daniel Wright); 68 Cong. Rec. 3532 (1927) (same for Frank Cooper). 26 35 Opinions of the Office of Legal Counsel in Volume 44 tigation. 2 Cong. Rec. at 3438. The House promptly agreed to the resolution, enabling the committee to “examine” the witnesses that day. Id. In other cases, however, no full investigation ever materialized. In 1803, John Pickering, a district judge, was impeached, but the House voted to impeach him without conducting any investigation at all, relying instead upon documents supplied by President Jefferson. See 3 Hinds’ Precedents § 2319, at 681–82; see also Lynn W. Turner, The Impeachment of John Pickering, 54 Am. Hist. Rev. 485, 491 (1949). Sometimes, the House authorized only a preliminary inquiry to determine whether an investigation would be warranted. In 1908, for instance, the House asked the Judiciary Committee to consider proposed articles impeaching Judge Lebbeus Wilfley of the U.S. Court for China. In the ensuing hearing, the Representative who had introduced the resolution acknowledged that the committee was not “authorized to subpoena witnesses” and had been authorized to conduct only “a preliminary examination,” which was “not like an investigation ordinarily held by the House,” but was instead dedicated solely to determining “whether you believe it is a case that ought to be investigated at all.” 27 In many other cases, it is apparent that—even when impeachment resolutions had been referred to them—committees conducted no formal investigation. 28 27 Articles for the Impeachment of Lebbeus R. Wilfley, Judge of the U.S. Court for China: Hearings Before a Subcomm. of the H. Comm. on the Judiciary, 60th Cong. 4 (1908) (statement of Rep. Waldo); see also id. at 45–46 (statement of Rep. Moon) (“This committee conceives to be its duty solely, under the resolution referring this matter to them, to examine the charges preferred in the petition . . . and to report thereon whether in its judgement the petitioner has made out a prima facie case; and also whether . . . Congress should adopt a resolution instructing the Judiciary Committee to proceed to an investigation of the facts of the case.”); 6 Cannon’s Precedents § 525, at 743–45 (summarizing the Wilfley case, in which the Judiciary Committee ultimately reported that no formal investigation was warranted). The case of Judge Samuel Alschuler in 1935 similarly involved only a preliminary investigation—albeit one with actual investigative powers. The House first referred to the Judiciary Committee a resolution that, if approved, would authorize an investigation of potential impeachment charges. See 79 Cong. Rec. 7086, 7106 (1935). Six days later, it adopted a resolution that granted the committee investigative powers in support of “the preliminary examinations deemed necessary” for the committee to make a recommendation about whether a full investigation should occur. Id. at 7393–94. The committee ultimately recommended against a full investigation. See H.R. Rep. No. 74-1802, at 2 (1935). 28 See, e.g., 18 Annals of Cong. 1885–86, 2197–98 (1808) (Harry Innes, 1808; the House passed a resolution authorizing an impeachment investigation, which concluded 36 House Committees’ Authority to Investigate for Impeachment In 1970, in a rhetorical departure from well-established practice, a subcommittee of the Judiciary Committee described itself as investigating the impeachment of Justice William O. Douglas based solely upon an impeachment resolution referred to the Judiciary Committee. See 116 Cong. Rec. 11920, 11942 (1970); 3 Deschler’s Precedents ch. 14, §§ 14.14−14.16, at 2151−64; see also Labovitz, Presidential Impeachment at 182 n.18 (noting that “[t]he Douglas inquiry was the first impeachment investigation in twenty-five years, and deviation from the older procedural pattern was not surprising”). Yet, the subcommittee did not resort to any compulsory process during its inquiry, and it did not recommend impeachment. 3 Deschler’s Precedents ch. 14, §§ 14.15−14.16, at 2158−63. Accordingly, the committee did not actually exercise any of the investigative powers of the House. In the late 1980s, the House Judiciary Committee considered the impeachment of three district-court judges without any express authorization from the House: Walter Nixon, Alcee Hastings, and Harry Claiborne. See In re Application of the Comm. on the Judiciary, 2019 WL 5485221, at *26 (discussing these investigations). All three judges had been criminally prosecuted, and two had been convicted. See H.R. Rep. No. 101-36, at 12–13 (1989) (describing Nixon’s prosecution and conviction); H.R. Rep. No. 100-810, at 7−8, 29–31, 38–39 (1988) (describing Hastings’s indictment and trial and the subsequent decision to proceed with a judicialmisconduct proceeding in lieu of another prosecution); H.R. Rep. No. 99688, at 9, 17–20 (1986) (describing Claiborne’s prosecution and conviction). In the Claiborne inquiry, the committee does not appear to have that the evidence accompanying the resolution did not support impeachment); 3 Hinds’ Precedents § 2486, at 981–83 (George Turner, 1796; no apparent investigation, presumably because of the parallel criminal prosecution recommended by Attorney General Lee, as discussed above); id. § 2488, at 985 (Harry Toulmin, 1811; the House “declined to order a formal investigation”); 40 Annals of Cong. 463–69, 715–18 (1822–23) (Charles Tait, 1823; no apparent investigation beyond examination of documents containing charges); 3 Hinds’ Precedents § 2493, at 991–92 (Benjamin Johnson, 1833; no apparent investigation); id. § 2511, at 1019–20 (Charles Sherman, 1873; the Judiciary Committee received evidence from the Ways and Means Committee, which had been investigating corruption in Congress, but the Judiciary Committee conducted no further investigation); 6 Cannon’s Precedents § 535, at 769 (Kenesaw Mountain Landis, 1921; the Judiciary Committee reported that “charges were filed too late in the present session of the Congress” to enable investigation); 3 Deschler’s Precedents ch. 14, § 14.6, at 2144–45 (Joseph Molyneaux, 1934; the Judiciary Committee took no action on the referral of a resolution that would have authorized an investigation). 37 Opinions of the Office of Legal Counsel in Volume 44 issued any subpoenas. See H.R. Rep. No. 99-688, at 4 (noting that the committee sent “[i]nvitational letters to all witnesses,” who apparently cooperated to the Committee’s satisfaction). The committee did issue subpoenas in the Nixon and Hastings investigations, yet no witness appears to have objected on the ground that the committee lacked jurisdiction to issue the subpoenas, and at least one witness appears to have requested a subpoena. 29 In those two cases, though, the Judiciary Committee effectively compelled production without any express authorization from the House. 30 In the years after these outliers, the Judiciary Committee returned to the practice of seeking specific authorization from the House before conducting impeachment investigations. Most notably, as discussed above, the Judiciary Committee “decided that it must receive authorization from the full House before proceeding” with an impeachment investigation of President Clinton. H.R. Rep. No. 105-795, at 24 (emphasis added). And the House has used the same practice with respect to federal judges. 31 Thus, in 2008, the House adopted a resolution authorizing the Judiciary Committee to investigate the impeachment of Judge G. Thomas Porteous, Jr., including the grant of subpoena authority. See H.R. Rep. No. 111-427, at 7 (2010); H.R. Res. 1448, 110th Cong. (2008); 154 Cong. Rec. 19502 (2008). After the Congress expired, the House in the next Congress 29 See H.R. Rep. No. 100-810, at 11 & n.14 (stating that, in the Hastings investigation, a committee subpoena had been issued for William Borders, who challenged the subpoena on First, Fourth, Fifth, and Eighth Amendment grounds); H.R. Rep. No. 100-1124, at 130 (1989) (noting the issuance of “subpoenas duces tecum” in the investigation of Judge Nixon); 134 Cong. Rec. 27782 (1988) (statement of Rep. Edwards) (explaining the subcommittee’s need to depose some witnesses pursuant to subpoena in the Nixon investigation); Judge Walter L. Nixon, Jr., Impeachment Inquiry: Hearing Before the Subcomm. on Civil & Constitutional Rights of the H. Comm. on the Judiciary, 101st Cong. 530–606 (1988) (reprinting deposition of Magistrate Judge Roper). 30 The House did pass resolutions authorizing funds for investigations with respect to the Hastings impeachment, see H.R. Res. 134, 100th Cong. (1987); H.R. Res. 388, 100th Cong. (1988), and resolutions authorizing the committee to permit its counsel to take affidavits and depositions in both the Nixon and Hastings impeachments, see H.R. Res. 562, 100th Cong. (1988) (Nixon); H.R. Res. 320, 100th Cong. (1987) (Hastings). 31 In the post-1989 era, as before, most of the impeachment resolutions against judges that were referred to the Judiciary Committee did not result in any further investigation. See, e.g., H.R. Res. 916, 109th Cong. (2006) (Manuel Real); H.R. Res. 207, 103d Cong. (1993) (Robert Collins); H.R. Res. 177, 103d Cong. (1993) (Robert Aguilar); H.R. Res. 176, 103d Cong. (1993) (Robert Collins). 38 House Committees’ Authority to Investigate for Impeachment adopted a new resolution re-authorizing the inquiry, again with subpoena authority. See H.R. Res. 15, 111th Cong. (2009); 155 Cong. Rec. 568, 571 (2009). Several months later, another district judge, Samuel Kent, pleaded guilty to obstruction of justice and was sentenced to 35 months of incarceration. See H.R. Rep. 111-159, at 9–13 (2009). The House then adopted a resolution directing the Judiciary Committee to investigate impeachment, again specifically granting subpoena authority. See id. at 13; H.R. Res. 424, 111th Cong. (2009); 155 Cong. Rec. at 12211–13. Thus, the House’s long-standing and nearly unvarying practice with respect to judicial impeachment inquiries is consistent with the conclusion that the power to investigate in support of the House’s “sole Power of Impeachment,” U.S. Const. art. I, § 2, cl. 5, may not be exercised by a committee without an express delegation from the House. In the cases of Judges Nixon and Hastings, the Judiciary Committee did exercise compulsory authority despite the absence of any delegation from the House. But insofar as no party challenged the committee’s authority at the time, and no court addressed the matter, these historical outliers do not undermine the broader constitutional principle. As the Supreme Court observed in Noel Canning, “when considered against 200 years of settled practice,” a “few scattered examples” are rightly regarded “as anomalies.” 573 U.S. at 538. They do not call into question the soundness of the House’s otherwise consistent historical practice, much less the constitutional requirement that a committee exercise the constitutional powers of the House only with an express delegation from the House itself. III. Having concluded that a House committee may not conduct an impeachment investigation without a delegation of authority, we next consider whether the House provided such a delegation to the Foreign Affairs Committee or to the other committees that issued subpoenas pursuant to the asserted impeachment inquiry. During the five weeks between the Speaker’s announcement on September 24 and the adoption of Resolution 660 on October 31, the committees issued numerous impeachment-related subpoenas. See supra note 9. We therefore provided advice during that period about whether any of the committees had authority to issue those subpoenas. Because the House had not adopted an impeachment resolution, the answer to that question turned on whether the committees could issue those subpoenas based upon any preexisting subpoena authority. 39 Opinions of the Office of Legal Counsel in Volume 44 In justifying the subpoenas, the Foreign Affairs Committee and other committees pointed to the resolution adopting the Rules of the House of Representatives, which establish the committees and authorize investigations for matters within their jurisdiction. The committees claimed that Rule XI confers authority to issue subpoenas in connection with an impeachment investigation. Although the House has expanded its committees’ authority in recent decades, the House Rules continue to reflect the long-established distinction between legislative and non-legislative investigative powers. Those rules confer legislative oversight jurisdiction on committees and authorize the issuance of subpoenas to that end, but they do not grant authority to investigate for impeachment purposes. While the House committees could have sought some information relating to the same subjects in the exercise of their legislative oversight authority, the subpoenas they purported to issue “pursuant to the House of Representatives’ impeachment inquiry” were not in support of such oversight. We therefore conclude that they were unauthorized. A. The standing committees of the House trace their general subpoena powers back to the House Rules, which the 116th Congress adopted by formal resolution. See H.R. Res. 6, 116th Cong. (2019). The House Rules are more than 60,000 words long, but they do not include the word “impeachment.” The Rules’ silence on that topic is particularly notable when contrasted with the Senate, which has adopted specific “Rules of Procedure and Practice” for impeachment trials. S. Res. 479, 99th Cong. (1986). 32 The most obvious conclusion to draw from that silence is that the current House, like its predecessors, retained impeachment authority at the level of the full House, subject to potential delegations in resolutions tailored for that purpose. Rule XI of the Rules of the House affirmatively authorizes committees to issue subpoenas, but only for matters within their legislative jurisdiction. The provision has been a part of the House Rules since 1975. See H.R. Res. 988, 93d Cong. § 301 (1974). Clause 2(m)(1) of Rule XI vests Unlike the House, “the Senate treats its rules as remaining in effect continuously from one Congress to the next without having to be re-adopted.” Richard S. Beth, Cong. Research Serv., R42929, Procedures for Considering Changes in Senate Rules 9 (Jan. 22, 2013). Of course, like the House, the Senate may change its rules by simple resolution. 32 40 House Committees’ Authority to Investigate for Impeachment each committee with the authority to issue subpoenas “[f ]or the purpose of carrying out any of its functions and duties under this rule and rule X (including any matters referred to it under clause 2 of rule XII).” Rule XI, cl. 2(m)(1); see also Rule X, cl. 11(d)(1) (making clause 2 of Rule XI applicable to HPSCI). The committees therefore have subpoena power to carry out their authorities under three rules: Rule X, Rule XI, and clause 2 of Rule XII. Rule X does not provide any committee with jurisdiction over impeachment. Rule X establishes the “standing committees” of the House and vests them with “their legislative jurisdictions.” Rule X, cl. 1. The jurisdiction of each committee varies in subject matter and scope. While the Committee on Ethics, for example, has jurisdiction over only “[t]he Code of Official Conduct” (Rule X, cl. 1(g)), the jurisdiction of the Foreign Affairs Committee spans seventeen subjects, including “[r]elations of the United States with foreign nations generally,” “[i]ntervention abroad and declarations of war,” and “[t]he American National Red Cross” (Rule X, cl. 1(i)(1), (9), (15)). The rule likewise spells out the jurisdiction of the Committee on Oversight and Reform (Rule X, cl. 1(n), cl. 3(i)), and the jurisdiction of the Judiciary Committee (Rule X, cl. 1(l )). Clause 11 of Rule X establishes HPSCI and vests it with jurisdiction over “[t]he Central Intelligence Agency, the Director of National Intelligence, and the National Intelligence Program” and over “[i]ntelligence and intelligencerelated activities of all other departments and agencies.” Rule X, cl. 11(a)(1), (b)(1)(A)–(B). The text of Rule X confirms that it addresses the legislative jurisdiction of the standing committees. After defining each standing committee’s subject-matter jurisdiction, the Rule provides that “[t]he various standing committees shall have general oversight responsibilities” to assist the House in its analysis of “the application, administration, execution, and effectiveness of Federal laws” and of the “conditions and circumstances that may indicate the necessity or desirability of enacting new or additional legislation,” as well as to assist the House in its “formulation, consideration, and enactment of changes in Federal laws, and of such additional legislation as may be necessary or appropriate.” Rule X, cl. 2(a)(1)–(2). The committees are to conduct oversight “on a continuing basis” “to determine whether laws and programs addressing subjects within the jurisdiction of a committee” are implemented as Congress intends “and whether they should be continued, curtailed, or eliminated.” Rule X, cl. 2(b)(1). Those are all functions traditionally associated with legislative 41 Opinions of the Office of Legal Counsel in Volume 44 oversight, not the separate power of impeachment. See supra Part II.A. Clause 3 of Rule X further articulates “[s]pecial oversight functions” with respect to particular subjects for certain committees; for example, the Committee on Foreign Affairs “shall review and study on a continuing basis laws, programs, and Government activities relating to . . . intelligence activities relating to foreign policy,” Rule X, cl. 3(f ). And clause 4 addresses “[a]dditional functions of committees,” including functions related to the review of appropriations and the special authorities of the Committee on Oversight and Reform, Rule X, cl. 4(a)(1), (c)(1). But none of the “[s]pecial oversight” or “[a]dditional” functions specified in clauses 3 and 4 includes any reference to the House’s impeachment power. The powers of HPSCI are addressed in clause 11 of Rule X. Unlike the standing committees, HPSCI is not given “[g]eneral oversight responsibilities” in clause 2. But clause 3 gives it the “[s]pecial oversight functions” of “review[ing] and study[ing] on a continuing basis laws, programs, and activities of the intelligence community” and of “review[ing] and study[ing] . . . the sources and methods of ” specified entities that engage in intelligence activities. Rule X, cl. 3(m). And clause 11 further provides that proposed legislation about intelligence activities will be referred to HPSCI and that HPSCI shall report to the House “on the nature and extent of the intelligence and intelligence-related activities of the various departments and agencies of the United States.” Rule X, cl. 11(b)(1), (c)(1); see also H.R. Res. 658, 95th Cong. § 1 (1977) (resolution establishing HPSCI, explaining its purpose as “provid[ing] vigilant legislative oversight over the intelligence and intelligence-related activities of the United States” (emphasis added)). Again, those powers sound in legislative oversight, and nothing in the Rules suggests that HPSCI has any generic delegation of the separate power of impeachment. Consistent with the foregoing textual analysis, Rule X has been seen as conferring legislative oversight authority on the House’s committees, without any suggestion that impeachment authorities are somehow included therein. The Congressional Research Service describes Rule X as “contain[ing] the legislative and oversight jurisdiction of each standing committee, several clauses on committee procedures and operations, and a clause specifically addressing the jurisdiction and operation of the Permanent Select Committee on Intelligence.” Michael L. Koempel & Judy Schneider, Cong. Research Serv., R41605, House Standing Committees’ Rules on Legislative Activities: Analysis of Rules in Effect in the 114th Congress 2 (Oct. 11, 2016); see also Dolan, Congressional Oversight 42 House Committees’ Authority to Investigate for Impeachment Manual at 25 (distinguishing a committee inquiry with “a legislative purpose” from inquiries conducted under “some other constitutional power of Congress, such as the authority” to “conduct impeachment proceedings”). In the chapter of Deschler’s Precedents devoted to explaining the “[i]nvestigations and [i]nquiries” by the House and its committees, the Parliamentarian repeatedly notes that impeachment investigations and other non-legislative powers are discussed elsewhere. See 4 Deschler’s Precedents ch. 15, § 1, at 2283; id. § 14, at 2385 n.12; id. § 16, at 2403 & n.4. Rule X concerns only legislative oversight, and Rule XI does not expand the committees’ subpoena authority any further. That rule rests upon the jurisdiction granted in Rule X. See Rule XI, cl. 1(b)(1) (“Each committee may conduct at any time such investigations and studies as it considers necessary or appropriate in the exercise of its responsibilities under rule X.”). Nor does Rule XII confer any additional jurisdiction. Clause 2(a) states that “[t]he Speaker shall refer each bill, resolution, or other matter that relates to a subject listed under a standing committee named in clause 1 of rule X[.]” Rule XII, cl. 2(a). The Speaker’s referral authority under Rule XII is thus limited to matters within a committee’s Rule X legislative jurisdiction. See 18 Deschler’s Precedents app. at 578 (“All committees were empowered by actual language of the Speaker’s referral to consider only ‘such provisions of the measure as fall within their respective jurisdictions under Rule X.’”). Accordingly, the Speaker may not expand the jurisdiction of a committee by referring a bill or resolution falling outside the committee’s Rule X authority. 33 In reporting Resolution 660 to the House, the Rules Committee expressed the view that clause 2(m) of Rule XI gave standing committees the authority to issue subpoenas in support of impeachment inquiries. See H.R. Rep. No. 116-266, at 18 (2019). But the committee did not explain which terms of the rule provide such authority. To the contrary, the committee simply asserted that the rule granted such authority and that the text of Resolution 660 departed from its predecessors on account of amendments to clause 2(m) that were adopted after the “Clinton and Nor do the Rules otherwise give the Speaker the authority to order an investigation or issue a subpoena in connection with impeachment. Rule I sets out the powers of the Speaker. She “shall sign . . . all writs, warrants, and subpoenas of, or issued by order of, the House.” Rule I, cl. 4. But that provision applies only when the House itself issues an order. See Jefferson’s Manual § 626, at 348. 33 43 Opinions of the Office of Legal Counsel in Volume 44 Nixon impeachment inquiry resolutions.” Id. Yet clause 2(m) of Rule XI was adopted two decades before the Clinton inquiry. 34 Even with that authority in place, the Judiciary Committee recognized in 1998 that it “must receive authorization from the full House before proceeding” to investigate President Clinton for impeachment purposes. H.R. Rep. No. 105-795, at 24 (emphasis added). And, even before Rule XI was adopted, the House had conferred on the Judiciary Committee a materially similar form of investigative authority (including subpoena power) in 1973. 35 The Judiciary Committee nevertheless recognized that those subpoena powers did not authorize it to conduct an impeachment inquiry about President Nixon. In other words, the Rules Committee’s recent interpretation of clause 2(m) (which it did not explain in its report) cannot be reconciled with the Judiciary Committee’s well-reasoned conclusion, in both 1974 and 1998, that Rule XI (and its materially similar predecessor) do not confer any standing authority to conduct an impeachment investigation. In modern practice, the Speaker has referred proposed resolutions calling for the impeachment of a civil officer to the Judiciary Committee. See Jefferson’s Manual § 605, at 324. Consistent with this practice, the Speaker referred the Sherman resolution (H.R. Res. 13, 116th Cong.) to the Judiciary Committee, because it called for the impeachment of President Trump. Yet the referral itself did not grant authority to conduct an impeachment investigation. House committees have regularly received referrals and conducted preliminary inquiries, without compulsory pro34 Clause 2(m) of Rule XI was initially adopted on October 8, 1974, and took effect on January 3, 1975. See H.R. Res. 988, 93d Cong. The rule appears to have remained materially unchanged from 1975 to the present (including during the time of the Clinton investigation). See H.R. Rule XI, cl. 2(m), 105th Cong. (Jan. 1, 1998) (version in effect during the Clinton investigation); Jefferson’s Manual § 805, at 586–89 (reprinting current version and describing the provision’s evolution). 35 At the start of the 93rd Congress in 1973, the Judiciary Committee was “authorized to conduct full and complete studies and investigations and make inquiries within its jurisdiction as set forth in [the relevant provision] of the Rules of the House of Representatives” and was empowered “to hold such hearings and require, by subpena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memorandums, papers, and documents, as it deems necessary.” H.R. Res. 74, 93d Cong. §§ 1, 2(a) (1973); see also Cong. Research Serv., R45769, The Impeachment Process in the House of Representatives 4 (updated Nov. 14, 2019) (noting that, before Rule XI vested subpoena power in standing committees, the Judiciary Committee and other committees had often been given subpoena authority “through resolutions providing blanket investigatory authorities that were agreed to at the start of a Congress”). 44 House Committees’ Authority to Investigate for Impeachment cess, for the purpose of determining whether to recommend that the House open a formal impeachment investigation. See supra Part II.C. Should a committee determine that a formal inquiry is warranted, then the committee recommends that the House adopt a resolution that authorizes such an investigation, confers subpoena power, and provides special process to the target of the investigation. The Judiciary Committee followed precisely that procedure in connection with the impeachment investigations of Presidents Nixon and Clinton, among many others. By referring an impeachment resolution to the House Judiciary Committee, the Speaker did not expand that committee’s subpoena authority to cover a formal impeachment investigation. In any event, no impeachment resolution was ever referred to the Foreign Affairs Committee, HPSCI, or the Committee on Oversight and Reform. Rule XII thus could not provide any authority to those committees in support of the impeachment-related subpoenas issued before October 31. Accordingly, when those subpoenas were issued, the House Rules did not provide authority to any of those committees to issue subpoenas in connection with potential impeachment. In reaching this conclusion, we do not question the broad authority of the House of Representatives to determine how and when to conduct its business. See U.S. Const. art. I, § 5, cl. 2. As the Supreme Court has recognized, “‘all matters of method are open to the determination’” of the House, “as long as there is ‘a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained,’ and the rule does not ‘ignore constitutional restraints or violate fundamental rights.’” Noel Canning, 573 U.S. at 551 (quoting United States v. Ballin, 144 U.S. 1, 5 (1892)). The question, however, is not “what rules Congress may establish for its own governance,” but “rather what rules the House has established and whether they have been followed.” Christoffel v. United States, 338 U.S. 84, 88–89 (1949); see also Yellin v. United States, 374 U.S. 109, 121 (1963) (stating that a litigant “is at least entitled to have the Committee follow its rules and give him consideration according to the standards it has adopted in” the relevant rule); United States v. Smith, 286 U.S. 6, 33 (1932) (“As the construction to be given to the rules affects persons other than members of the Senate, the question presented is of necessity a judicial one.”). Statements by the Speaker or by committee chairmen are not statements of the House itself. Cf. Noel Canning, 573 U.S. at 552–53 (relying on statements and actions of the Senate itself, as reflected in the Journal of the Senate and the Congressional Record, to determine when 45 Opinions of the Office of Legal Counsel in Volume 44 the Senate was “in session”). Our conclusion here turned upon nothing more, and nothing less, than the rules and resolutions that had been adopted by a majority vote of the full House. 36 The text of those provisions determined whether the House had delegated the necessary authority. See id. at 552 (“[O]ur deference to the Senate cannot be absolute. When the Senate is without the capacity to act, under its own rules, it is not in session even if it so declares.”). Thus, the Supreme Court has repeatedly made clear that a target of the House’s compulsory process may question whether a House resolution has actually conferred the necessary powers upon a committee, because the committee’s “right to exact testimony and to call for the production of documents must be found in [the resolution’s] language.” Rumely, 345 U.S. at 44; see also Watkins, 354 U.S. at 201. In Rumely, the Court expressly rejected the argument that the House had confirmed the committee’s jurisdiction by adopting a resolution that merely held the witness in contempt after the fact. As the Court explained, what was said “after the controversy had arisen regarding the scope of the resolution . . . had the usual infirmity of post litem motam, self-serving declarations.” 345 U.S. at 48. In other words, even a vote of the full House could not “enlarge[]” a committee’s authority after the fact for purposes of finding that a witness had failed to comply with the obligations imposed by the subpoena. Id. Here, the House committees claiming to investigate impeachment issued subpoenas before they had received any actual delegation of impeachment-related authority from the House. Before October 31, the committees relied solely upon statements of the Speaker, the committee chairmen, and the Judiciary Committee, all of which merely asserted that one or more House committees had already been conducting a formal impeachment inquiry. There was, however, no House resolution actually delegating such authority to any committee, let alone one that did so with 36 The Judiciary Committee has also invoked House Resolution 430 as an independent source of authority for an impeachment inquiry. See Tr. of Mot. Hrg. at 91–92, In re Application of the Comm. on the Judiciary; see also Majority Staff of H. Comm. on the Judiciary, 116th Cong., Constitutional Grounds for Presidential Impeachment 39 (Dec. 2019). As discussed above, however, that resolution did not confer any investigative authority. Rather, it granted “any and all necessary authority under Article I” only “in connection with” certain “judicial proceeding[s]” in federal court. H.R. Res. 430, 116th Cong. (2019); see supra note 7. The resolution therefore had no bearing on any committee’s authority to compel the production of documents or testimony in an impeachment investigation. 46 House Committees’ Authority to Investigate for Impeachment “sufficient particularity” to compel witnesses to respond. Watkins, 354 U.S. at 201; cf. Gojack v. United States, 384 U.S. 702, 716–17 (1966). At the opening of this Congress, the House had not chosen to confer investigative authority over impeachment upon any committee, and therefore, no House committee had authority to compel the production of documents or testimony in furtherance of an impeachment inquiry that it was not authorized to conduct. B. Lacking a delegation from the House, the committees could not compel the production of documents or the testimony of witnesses for purposes of an impeachment inquiry. Because the first impeachment-related subpoena —the September 27 subpoena from the Foreign Affairs Committee— rested entirely upon the purported impeachment inquiry, see Three Chairmen’s Letter, supra note 2, at 1, it was not enforceable. See, e.g., Rumely, 345 U.S. at 44. Perhaps recognizing this infirmity, the committee chairmen invoked not merely the impeachment inquiry in connection with subsequent impeachment-related subpoenas but also the committees’ “oversight and legislative jurisdiction.” See supra note 9 and accompanying text. That assertion of dual authorities presented the question whether the committees could leverage their oversight jurisdiction to require the production of documents and testimony that the committees avowedly intended to use for an unauthorized impeachment inquiry. We advised that, under the circumstances of these subpoenas, the committees could not do so. Any congressional inquiry “must be related to, and in furtherance of, a legitimate task of the Congress.” Watkins, 354 U.S. at 187. The Executive Branch need not presume that such a purpose exists or accept a “makeweight” assertion of legislative jurisdiction. Mazars USA, 940 F.3d at 725–26, 727; see also Shelton v. United States, 404 F.2d 1292, 1297 (D.C. Cir. 1968) (“In deciding whether the purpose is within the legislative function, the mere assertion of a need to consider ‘remedial legislation’ may not alone justify an investigation accompanied with compulsory process[.]”). Indeed, “an assertion from a committee chairman may not prevent the Executive from confirming the legitimacy of an investigative request.” Congressional Committee’s Request for the President’s Tax Returns Under 26 U.S.C. § 6103( f ), 43 Op. O.L.C. __, at *20 (June 13, 2019). To the contrary, “a threshold inquiry that should be made upon 47 Opinions of the Office of Legal Counsel in Volume 44 receipt of any congressional request for information is whether the request is supported by any legitimate legislative purpose.” Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act, 10 Op. O.L.C. 68, 74 (1986); see also Congressional Requests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 159 (1989) (recognizing that the constitutionally mandated accommodation process “requires that each branch explain to the other why it believes its needs to be legitimate”). Here, the committee chairmen made clear upon issuing the subpoenas that the committees were interested in the requested materials to support an investigation into the potential impeachment of the President, not to uncover information necessary for potential legislation within their respective areas of legislative jurisdiction. In marked contrast with routine oversight, each of the subpoenas was accompanied by a letter signed by the chairs of three different committees, who transmitted a subpoena “[p]ursuant to the House of Representatives’ impeachment inquiry” and recited that the documents would “be collected as part of the House’s impeachment inquiry,” and that they would be “shared among the Committees, as well as with the Committee on the Judiciary as appropriate.” See supra note 9 and accompanying text. Apart from their token invocations of “oversight and legislative jurisdiction,” the letters offered no hint of any legislative purpose. The committee chairmen were therefore seeking to do precisely what they said—compel the production of information to further an impeachment inquiry. In reaching this conclusion, we do not foreclose the possibility that the Foreign Affairs Committee or the other committees could have issued similar subpoenas in the bona fide exercise of their legislative oversight jurisdiction, in which event the requests would have been evaluated consistent with the long-standing confidentiality interests of the Executive Branch. See Watkins, 354 U.S. at 187 (recognizing that Congress’s general investigative authority “comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste”); McGrain, 273 U.S. at 179–80 (observing that it is not “a valid objection to the investigation that it might possibly disclose crime or wrongdoing on [the Attorney General’s] part”). Should the Foreign Affairs Committee, or another committee, articulate a legitimate oversight purpose for a future information request, the Executive Branch would assess that request as part of the constitutionally required accommodation process. But the Executive Branch was not confronted with that situation. The committee 48 House Committees’ Authority to Investigate for Impeachment chairmen unequivocally attempted to conduct an impeachment inquiry into the President’s actions, without the House, which has the “sole Power of Impeachment,” having authorized such an investigation. Absent such an authorization, the committee chairs’ passing mention of “oversight and legislative jurisdiction” did not cure that fundamental defect. C. We next address whether the House ratified any of the previous committee subpoenas when it adopted Resolution 660 on October 31, 2019— after weeks of objections from the Executive Branch and many members of Congress to the committees’ efforts to conduct an unauthorized impeachment inquiry. Resolution 660 provides that six committees of the House “are directed to continue their ongoing investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist for the House of Representatives to exercise its Constitutional power to impeach Donald John Trump, President of the United States of America.” Resolution 660, § 1. The resolution further prescribes certain procedures by which HPSCI and the Judiciary Committee may conduct hearings in connection with the investigation defined by that resolution. Resolution 660 does not speak at all to the committees’ past actions or seek to ratify any subpoena previously issued by the House committees. See Trump v. Mazars USA, LLP, 941 F.3d 1180, 1182 (D.C. Cir. 2019) (Rao, J., dissenting from the denial of rehearing en banc); see also Exclusion of Agency Counsel from Congressional Depositions in the Impeachment Context, 43 Op. O.L.C. __, at *5 (Nov. 1, 2019). The resolution “direct[s]” HPSCI and other committees to “continue” their investigations, and the Rules Committee apparently assumed, incorrectly in our view, that earlier subpoenas were legally valid. See H.R. Rep. No. 116266, at 3 (“All subpoenas to the Executive Branch remain in full force.”). But the resolution’s operative language does not address any previously issued subpoenas or provide the imprimatur of the House to give those subpoenas legal force. And the House knows how to ratify existing subpoenas when it chooses to do so. 37 On July 24, 2019, the House adopted a resolution that express37 Even if the House had sought to ratify a previously issued subpoena, it could give that subpoena only prospective effect. As discussed above, the Supreme Court has recognized that the House may not cite a witness for contempt for failure to comply with 49 Opinions of the Office of Legal Counsel in Volume 44 ly “ratif [ied] and affirm[ed] all current and future investigations, as well as all subpoenas previously issued or to be issued in the future,” related to certain enumerated subjects within the jurisdiction of standing or select committees of the House “as established by the Constitution of the United States and rules X and XI of the Rules of the House of Representatives.” H.R. Res. 507, 116th Cong. § 1 (2019) (emphasis added). There, as here, the House acted in response to questions regarding “the validity of . . . [committee] investigations and subpoenas.” Id. pmbl. Despite that recent model, Resolution 660 contains no comparable language seeking to ratify previously issued subpoenas. The resolution directs certain committees to “continue” investigations, and it specifies procedures to govern future hearings, but nothing in the resolution looks backward to actions previously taken. Accordingly, Resolution 660 did not ratify or otherwise authorize the impeachment-related subpoenas issued before October 31, which therefore still had no compulsory effect on their recipients. IV. Finally, we address some of the consequences that followed from our conclusion that the committees’ pre-October 31 impeachment-related subpoenas were unauthorized. First, because the subpoenas exceeded the committees’ investigative authority and lacked compulsory effect, the committees were mistaken in contending that the recipients’ “failure or refusal to comply with the subpoena [would] constitute evidence of obstruction of the House’s impeachment inquiry.” Three Chairmen’s Letter, supra note 2, at 1. 38 As explained at length above, when the subpoenas were issued, there was no valid impeachment inquiry. To the extent that the committees’ subpoenas sought information in support of an unauthorized impeachment inquiry, the failure to comply with those subpoenas was no more punishable than were the failures of the witnesses in Watkins, Rumely, Kilbourn, and Lamont to answer questions that were beyond a subpoena unsupported by a valid delegation of authority at the time it was issued. See Rumely, 345 U.S. at 48; see also Exxon, 589 F.2d at 592 (“To issue a valid subpoena, . . . a committee or subcommittee must conform strictly to the resolution establishing its investigatory powers[.]”). 38 The letters accompanying other subpoenas, see supra note 9, contained similar threats that the recipients’ “failure or refusal to comply with the subpoena, including at the direction or behest of the President,” would constitute “evidence of obstruction of the House’s impeachment inquiry.” 50 House Committees’ Authority to Investigate for Impeachment the scope of those committees’ authorized jurisdiction. See Watkins, 354 U.S. at 206, 215 (holding that conviction for contempt of Congress was invalid because, when the witness failed to answer questions, the House had not used sufficient “care . . . in authorizing the use of compulsory process” and the committee had not shown that the information was pertinent to a subject within “the mission[] delegated to” it by the House); Rumely, 345 U.S. at 42–43, 48 (affirming reversal of conviction for contempt of Congress because it was not clear at the time of questioning that “the committee was authorized to exact the information which the witness withheld”); Kilbourn, 103 U.S. at 196 (sustaining action brought by witness for false imprisonment because the committee “had no lawful authority to require Kilbourn to testify as a witness beyond what he voluntarily chose to tell”); Lamont, 18 F.R.D. at 37 (dismissing indictment for contempt of Congress in part because the indictment did not sufficiently allege, among other things, “that the [Permanent Subcommittee on Investigations] . . . was duly empowered by either House of Congress to conduct the particular inquiry” or “that the inquiry was within the scope of the authority granted to the [sub]committee”). That alone suffices to prevent noncompliance with the subpoenas from constituting “obstruction of the House’s impeachment inquiry.” Second, we note that whether or not the impeachment inquiry was authorized, there were other, independent grounds to support directions by the Executive Branch that witnesses not appear in response to the committees’ subpoenas. We recently advised you that executive privilege continues to be available during an impeachment investigation. See Exclusion of Agency Counsel from Congressional Depositions in the Impeachment Context, 43 Op. O.L.C. __, at *2–5. The mere existence of an impeachment investigation does not eliminate the President’s need for confidentiality in connection with the performance of his duties. Just as in the context of a criminal trial, a dispute over a request for privileged information in an impeachment investigation must be resolved in a manner that “preserves the essential functions of each branch.” United States v. Nixon, 418 U.S. 683, 707 (1974). Thus, while a committee “may be able to establish an interest justifying its requests for information, the Executive Branch also has legitimate interests in confidentiality, and the resolution of these competing interests requires a careful balancing of each branch’s need in the context of the particular information sought.” Exclusion of Agency Counsel from Congressional Depositions in the Impeachment Context, 43 Op. O.L.C. __, at *4. 51 Opinions of the Office of Legal Counsel in Volume 44 Accordingly, we recognized, in connection with HPSCI’s impeachment investigation after October 31, that the committee may not compel an executive branch witness to appear for a deposition without the assistance of agency counsel, when that counsel is necessary to assist the witness in ensuring the appropriate protection of privileged information during the deposition. See id. at *4–5. In addition, we have concluded that the testimonial immunity of the President’s senior advisers “applies in an impeachment inquiry just as it applies in a legislative oversight inquiry.” Letter for Pat A. Cipollone, Counsel to the President, from Steven A. Engel, Assistant Attorney General, Office of Legal Counsel at 2 (Nov. 3, 2019). Thus, even when the House takes the steps necessary to authorize a committee to investigate impeachment and compel the production of needed information, the Executive Branch continues to have legitimate interests to protect. The Constitution does not oblige either branch of government to surrender its legitimate prerogatives, but expects that each branch will negotiate in good faith with mutual respect for the needs of the other branch. See United States v. Am. Tel. & Tel. Co., 567 F.2d 121, 127 (D.C. Cir. 1977) (“[E]ach branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation.”); see also Memorandum for the Heads of Executive Departments and Agencies from President Ronald Reagan, Re: Procedures Governing Responses to Congressional Requests for Information (Nov. 4, 1982). The two branches should work to identify arrangements in the context of the particular requests of an investigating committee that accommodate both the committee’s needs and the Executive Branch’s interests. For these reasons, the House cannot plausibly claim that any executive branch official engaged in “obstruction” by failing to comply with committee subpoenas, or directing subordinates not to comply, in order to protect the Executive Branch’s legitimate interests in confidentiality and the separation of powers. We explained thirty-five years ago that “the Constitution does not permit Congress to make it a crime for an official to assist the President in asserting a constitutional privilege that is an integral part of the President’s responsibilities under the Constitution.” Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 140 (1984). Nor may Congress “utilize its inherent ‘civil’ contempt powers to 52 House Committees’ Authority to Investigate for Impeachment arrest, bring to trial, and punish an executive official who assert[s] a Presidential claim of executive privilege.” Id. at 140 n.42. We have reaffirmed those fundamental conclusions in each of the subsequent decades. 39 The constitutionally required accommodation process, of course, is a two-way street. In connection with this investigation, the House committees took the unprecedented steps of investigating the impeachment of a President without any authorization from the full House; without the procedural protections provided to Presidents Nixon and Clinton, see supra note 12; and with express threats of obstruction charges and unconstitutional demands that officials appear and provide closed-door testimony about privileged matters without the assistance of executive branch counsel. Absent any effort by the House committees to accommodate the Executive Branch’s legitimate concerns with the unprecedented nature of the committees’ actions, it was reasonable for executive branch officials to decline to comply with the subpoenas addressed to them. V. For the reasons set forth above, we conclude that the House must expressly authorize a committee to conduct an impeachment investigation and to use compulsory process in that investigation before the committee 39 See, e.g., Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees, 43 Op. O.L.C. __, at *14 (May 23, 2019) (“[I]t would be unconstitutional to enforce a subpoena against an agency employee who declined to appear before Congress, at the agency’s direction, because the committee would not permit an agency representative to accompany him.”); Testimonial Immunity Before Congress of the Former Counsel to the President, 43 Op. O.L.C. __, at *20 (May 20, 2019) (“The constitutional separation of powers bars Congress from exercising its inherent contempt power in the face of a presidential assertion of executive privilege.”); Whether the Department of Justice May Prosecute White House Officials for Contempt of Congress, 32 Op. O.L.C. 65, 65–69 (2008) (concluding that the Department cannot take “prosecutorial action, with respect to current or former White House officials who . . . declined to appear to testify, in response to subpoenas from a congressional committee, based on the President’s assertion of executive privilege”); Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. 350, 356 (1995) (“[T]he criminal contempt of Congress statute does not apply to the President or presidential subordinates who assert executive privilege.”); see also Authority of Agency Officials to Prohibit Employees from Providing Information to Congress, 28 Op. O.L.C. 79, 80–82 (2004) (explaining that the Executive Branch has the constitutional authority to supervise its employees’ disclosure of privileged and other information to Congress). 53 Opinions of the Office of Legal Counsel in Volume 44 may compel the production of documents or testimony in support of the House’s “sole Power of Impeachment.” U.S. Const. art. I, § 2, cl. 5. The House had not authorized such an investigation in connection with the impeachment-related subpoenas issued before October 31, 2019, and the subpoenas therefore had no compulsory effect. The House’s adoption of Resolution 660 did not alter the legal status of those subpoenas, because the resolution did not ratify them or otherwise address their terms. STEVEN A. ENGEL Assistant Attorney General Office of Legal Counsel 54

Write a legal research memo on the following topic.

Proposed Amendments to Military Commission Order No. 1 The Secretary of Defense could, consistent with the President’s Military Order of November 13, 2001, revise Military Commission Order No. 1 so that the presiding officer would rule upon all questions of law (subject to the requirements of section 4(c)(3) of the Military Order regarding questions of admissibility), and the other members of the commission would make findings and pronounce sentence. August 12, 2005 MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF DEFENSE You have requested our view on whether certain proposed amendments to the Secretary of Defense’s Military Commission Order No. 1 (“Military Commission Order”) are consistent with the President’s Military Order of November 13, 2001, 3 C.F.R. 918 (2001 Comp.) (“President’s Military Order”). We have reviewed the proposed amendments and conclude that all of them are consistent with the President’s Military Order. One proposed change merits special discussion: It has been proposed, through several of the revisions, to amend the Military Commission Order so that (i) the presiding officer of a military commission would make all legal rulings but not vote on findings or sentence and (ii) the other members of the commission would vote on findings and sentence but not make any legal rulings (except on some questions of admissibility). As explained below, such amendment would be consistent with the President’s Military Order. The President’s Military Order, entitled “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” provides, among other things, that the Executive Branch administer trials by military commission of al Qaeda members and other foreign individuals who have committed or supported acts of international terrorism. See President’s Military Order §§ 2(a), 4(a); see also id. § 7(c) (order “is not intended to and does not create any right, benefit, or privilege, substantive or procedural, enforceable at law or equity by any party”); Air Transp. Ass’n of Am. v. FAA, 169 F.3d 1, 8–9 (D.C. Cir. 1999) (holding that there was no “judicial review” of an executive order that expressly disclaimed creating any rights, and rejecting the use of such order in seeking judicial review of agency action as “an indirect—and impermissible—attempt to enforce private rights under the order”). The Secretary of Defense, in turn, is expressly authorized by that order to promulgate such “orders and regulations” as “may be necessary” to provide for trial by military commission. President’s Military Order § 4(b). His orders and regulations shall “include, but not be limited to, rules for the conduct of the proceedings of military commissions, including pretrial, trial, and post-trial procedures, modes of proof, issuance of process, and qualifications of attorneys.” Id. § 4(c). In addition, the procedures adopted by the Secretary must “at a minimum” meet eight specific requirements set forth in section 4(c). Among these 155 Opinions of the Office of Legal Counsel in Volume 29 eight requirements, and particularly relevant here, is section 4(c)(2), which requires “a full and fair trial, with the military commission sitting as the triers of both fact and law.” In addition, section 4(c)(3) provides for the “admission of such evidence as would, in the opinion of the presiding officer of the military commission (or instead, if any other member of the commission so requests at the time the presiding officer renders that opinion, the opinion of the commission rendered at that time by a majority of the commission), have probative value to a reasonable person”; that is, section 4(c)(3) requires that the presiding officer make rulings on admissibility, subject to the override of a majority of the commission. Pursuant to these authorities and requirements, the Secretary of Defense promulgated the Military Commission Order on March 21, 2002. That order allows for both the presiding officer and all other members of the military commission together to decide questions of law or fact (subject to the special rule for questions of admissibility). See, e.g., Military Commission Order §§ 5(L), 6(F). To determine whether the above-described proposal, dividing authority between the presiding officer and the other members of a commission, is consistent with the President’s Military Order, the primary question is whether such division would contravene the requirement of section 4(c)(2)—that “the military commission sit[] as the triers of both fact and law.” Although it is possible to read this section to require each member of a military commission to decide on all questions of law and fact, in which case the proposed change would violate section 4(c)(2), it is also permissible to read it as merely requiring that the military commission— as opposed to some other entity—decide all questions of law and fact at trial. The latter is a reasonable reading of section 4(c)(2) given its text and the context. The text of section 4(c)(2) might be considered awkward in referring to “the military commission” (singular) as the “triers” (plural). This construction, however, likely just reflects that the term “military commission” is a collective noun. It therefore “can take either singular or plural verbs and subsequent pronouns.” Columbia Guide to Standard American English 100 (1993). Here, given the plural “triers,” section 4(c)(2) appears to use the term “military commission” to mean the “military commission members,” as individuals, rather than the military commission as an entity. See Oxford Dictionary of English Grammar 69 (1994) (“The choice of singular or plural verb—and corresponding pronouns and determiners—depends on whether the group is considered as a single unit or a collection of individuals.”); Morton S. Freeman, The Grammatical Lawyer 305 (1979) (“Nouns known as collective nouns may be either singular or plural, depending upon whether the group is considered as a whole—in which case singulars are used—or as individual members—in which case plurals are used[.]”). Under this reading of “military commission,” it is true that one might conclude that the word “both” in section 4(c)(2) indicates that each member of the military commission must decide all questions of fact and law. But the language is not unequivocal on this point, and one also could conclude that section 4(c)(2), in requiring that the military commission members be “triers of both fact and law,” merely indicates that some from among the military commission members must 156 Proposed Amendments to Military Commission Order No. 1 resolve all legal or factual questions. The quoted phrase, in other words, may be read as ensuring that the military commission, in conducting “a full and fair trial,” is complete in and of itself with regard to both fact and law—not delegating any of its powers as trier to any other court or tribunal. If, for example, a small firm composed of two policy experts and a lawyer were hired to brief members of Congress on “both the facts and law” underlying a particular bill, it would at the very least be reasonable to understand the terms of the retention as not requiring each of the members of the firm to master all issues, but rather as leaving the members free to divide up the responsibilities as appropriate, by, for example, having the policy experts handle the factual issues and the lawyer handle the legal issues. The firm would still be providing the briefing as to both types of issues. Thus, under the most natural reading of the term “military commission” as used in section (4)(c)(2), together with this latter reading of the phrase “triers of both fact and law,” that section may reasonably be interpreted as not barring the proposed change in the Military Commission Order. Alternatively, and notwithstanding the plural “triers,” section 4(c)(2) might be read to use “military commission” to mean the military commission as an entity. That sense does seem to be the more frequent usage in section 4. See President’s Military Order § 4(a) (providing that a covered individual shall “be tried by military commission for any and all offenses triable by military commission”), § 4(c)(1) (providing for “military commissions to sit at any time and any place”), § 4(c)(3) (referring to the “presiding officer of the military commission” and “any other member of the commission”). Under this reading, section 4(c)(2) would simply require that the military commission as an entity decide in some authorized fashion all questions of fact or law, without specifying how the entity did so and thus without imposing any requirement regarding the duties of individual commission members. Thus, whatever the better reading of section 4(c)(2), it would not prohibit the Secretary of Defense from specifying the details for how the commission made such decisions. In addition, other provisions of the President’s Military Order further support the view that not every member (or even a majority of the members) of a military commission need participate in or approve every decision. Section 4(c)(3), for example, distinguishes between the roles of the “presiding officer” and “other member[s],” thus expressly contemplating the separate allocation of authority among military commission members. And sections 4(c)(6) and (c)(7) provide for conviction and sentencing “only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present.” Nothing in these two provisions requires that each member vote on findings and sentence. To the contrary, by making clear that the military commission need not act by unanimity or with all members present, they contemplate otherwise and, together with section 4(c)(3), reinforce our view of the permissible readings of section 4(c)(2). As noted above, the President’s Military Order also expressly grants to the Secretary of Defense the broad authority to promulgate such “orders and regula- 157 Opinions of the Office of Legal Counsel in Volume 29 tions” as “may be necessary” to “carry out” the President’s order to provide for trial by military commission, id. § 4(b), which orders and regulations shall include, but are not limited to, “rules for the conduct of the proceedings of military commissions,” id. § 4(c). See also id. § 6(a) (“[T]he Secretary of Defense shall issue such orders and regulations as may be necessary to carry out any of the provisions of this order.”). Two related points follow from this grant. First, because the President has committed to the Secretary the authority to carry out the presidential order requiring military commissions, the Secretary has discretion to follow any reasonable interpretation of ambiguous provisions in the President’s order. See Udall v. Tallman, 380 U.S. 1, 18 (1965) (agency interpretation of presidential orders is lawful “if . . . the [agency]’s interpretation is not unreasonable, if the language of the orders bears [its] construction”); Kester v. Campbell, 652 F.2d 13, 15 (9th Cir. 1981) (“In light of an agency’s presumed expertise in interpreting executive orders charged to its administration,” the agency’s interpretations should receive “great deference.”). Section 4(c)(2) is such a provision and, as shown, the Secretary may reasonably interpret it such that it would permit the proposed change in the Military Commission Order. Second, the President has granted to the Secretary broad authority to specify details for the workings of the military commission. See Letter for Raymond J. Kelly, Chairman, Railroad Retirement Board, from Robert W. Minor, Acting Deputy Attorney General, Department of Justice at 1 (Sept. 13, 1954) (where an executive order gave agencies authority to establish personnel regulations respecting national security, and where that order did not address a particular matter, that matter was “left to the discretion of each agency”); cf. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (agency’s power to administer a statute “necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress”) (internal quotation marks and citation omitted). Therefore, and under a reasonable reading of section 4(c)(2), the Secretary has authority under section 4(b) to specify particular duties for commission members to the extent that the President has not expressly done so in his order (as he has through the eight specific requirements in section 4(c)). We therefore conclude that the Secretary of Defense could, in a manner consistent with the President’s Military Order, revise the Military Commission Order as proposed so that the presiding officer would rule upon all questions of law (subject to the requirements of section 4(c)(3) regarding questions of admissibility) and the other members would make findings and pronounce sentence. C. KEVIN MARSHALL Deputy Assistant Attorney General Office of Legal Counsel 158

Write a legal research memo on the following topic.

The President’s Power in the Field of Foreign Relations The first section of this memorandum canvasses the historical precedents that delineate the President’s prerogatives vis-à-vis Congress in foreign relations. These precedents tend to fall into one of two categories: those reflecting the Hamiltonian view that the President as Chief Executive has sole and unlimited authority to determine the nation’s foreign policy, and those reflecting the Madisonian view that Congress as the law-making body has primary authority to determine the nation’s foreign policy, which the President must take care to enforce. The second section of this memorandum concludes that the power of the President to repel invasion is unquestioned. It would not be necessary to resolve the conflict between the Hamiltonian and Madisonian views in the event of an invasion, because statutes expressly provide that “whenever the United States shall be invaded or in imminent danger of invasion by any foreign nation,” the President may use the military and naval forces to repel such invasion. The third section of this memorandum discusses the application of the Neutrality Act of 1937 to the Spanish Civil War and the China-Japan conflict. November 8, 1937 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL* I. The President as the Depositary of the Executive Power It is important to bear in mind that we are here dealing . . . with . . . the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress . . . .—Mr. Justice Sutherland There are two major contentions regarding the extent of the President’s power in the field of foreign relations: (1) That the President, as the Chief Executive, has the sole and unlimited power—that his designation in the Constitution as the depositary of the Executive Power is, in itself, a source of power. (2) That while the President as the Chief Executive is the sole spokesman of the nation in the field of foreign relations, the Congress as the law-making body may prescribe the policy to be followed, and the President in dealing with foreign nations must keep within that policy. * Editor’s Note: Some of the citations in the version of this memorandum that was transcribed in the Unpublished Opinions of the Assistant Solicitor General were missing, incomplete, or incorrect. We have endeavored to complete and correct these citations with sources that fit the proposition in text and were available at the time this memorandum was written. 49 Supplemental Opinions of the Office of Legal Counsel in Volume 1 The controversy between the exponents of these two views has existed since the beginning of our constitutional government. It reached bitter proportions during Washington’s administration, with Alexander Hamilton championing the first position and James Madison championing the second. The occasion for their debate was the issuance by the President on April 22, 1793 of the proclamation of neutrality with respect to the war between certain nations, including Great Britain on the one part and France on the other. This proclamation was in direct conflict with the provisions of the treaty of alliance then existing between the United States and France, and as there was strong sentiment for France in this country at the time, the proclamation aroused severe criticism. It was charged that the President had failed in his constitutional duty to “take care that the laws be faithfully executed,” in that he not only had failed to carry out the treaty but had committed the country to a policy in direct opposition to its terms. In a series of articles signed “Pacificus,”1 Hamilton came to the support of the President, justifying the action taken upon the ground that the President was the sole representative of the nation in its dealings with other nations, so that in this field no other arm of the government could interfere with or hamper his action. He took the position that in this field the President’s power was supreme and unlimited, pointed out that the Constitution vests in the President the Executive Power, while it vests in the Congress only such legislative power as is therein granted. From this he argued that the executive power is complete except in so far as it is limited by the Constitution, and that the constitutional limitations must be strictly construed. He even inferred that the constitutional grant to the Congress of the power to declare war is not a limitation on the President’s right to also exercise this strictly executive function, but that in this respect, the power granted to the Congress is concurrent with the inherent power of the President as the repository of the Executive Power. Madison, at the request of Jefferson, 2 took issue with Hamilton and in a series of articles signed “Helvidius”3 advanced the second contention set out above. He took the position that the President’s powers, like those of the Congress, were strictly limited to those expressly granted by the Constitution and those necessarily implied therefrom, and that his duty “to take care that the laws be faithfully executed” required him to execute all laws enacted by the Congress including any bearing on the subject of foreign relations. He argued that the Constitution vested in Congress the exclusive right to regulate foreign commerce and to declare war, and that this was in direct conflict with Hamilton’s views. He contended that if the President believed the laws as enacted by the Congress were improper or inade- 1 7 The Works of Alexander Hamilton 76–117 (John C. Hamilton ed., 1851). 7 The Works of Thomas Jefferson 436–37 (Paul Leicester Ford ed., 1904). 3 6 The Writings of James Madison 138–88 (Gaillard Hunt ed., 1906). 2 50 The President’s Power in the Field of Foreign Relations quate his power was exhausted when he had convened the Congress and communicated his views to that body. Madison twitted Hamilton with inconsistency by quoting from an earlier article published in The Federalist, in which Hamilton had said: The history of human conduct does not warrant that exalted opinion of human virtue, which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a president of the United States.4 Hamilton could well have retorted that Madison, in a speech to the House of Representatives in 1789, upon the question of the President’s power to remove from office, had said: The constitution affirms, that the executive power shall be vested in the president. Are there exceptions to this proposition? Yes, there are. The constitution says that, in appointing to office, the senate shall be associated with the president, unless in the case of inferior officers, when the law shall otherwise direct. Have we a right to extend this exception? I believe not. If the constitution has invested all executive power in the president, I venture to assert, that the legislature has no right to diminish or modify his executive authority. 5 It is thus apparent that neither Hamilton nor Madison, the two early exponents of the opposing theories, was at all times consistent in his views on the subject. History discloses that Thomas Jefferson, likewise, was at times inconsistent. While Secretary of State under President Washington he wrote an opinion, at the request of the President, in which he said: The transaction of business with foreign nations is Executive altogether. It belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.6 This statement by Jefferson has been often quoted by exponents of the Hamiltonian theory. It is to be remembered, however, that Madison’s series of articles on the subject were written at Jefferson’s request. Moreover, although Jefferson as 4 Id. at 176 (quoting The Federalist No. 75) (emphasis added). Quoted in Edward S. Corwin, The President’s Control of Foreign Relations 29 (1917). 6 3 The Writings of Thomas Jefferson 16 (Andrew A. Lipscomb & Albert Ellery Bergh eds., lib. ed. 1903). 5 51 Supplemental Opinions of the Office of Legal Counsel in Volume 1 President, without authority from Congress, sent the American fleet into the Mediterranean to wage war against Tripoli, after that fleet had engaged in a naval battle with the Tripolitan fleet he seemingly belied his authority for his action in a message to Congress of December 8, 1801, in which he said: Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact, and had permitted itself to denounce war, on our failure to comply before a given day. The style of the demand admitted but one answer. I sent a small squadron of frigates into the Mediterranean . . . with orders to protect our commerce against the threatened attack. . . . Our commerce in the Mediterranean was blockaded, and that of the Atlantic in peril. . . . One of the Tripolitan cruisers having fallen in with, and engaged the small schooner Enterprise . . . was captured, after a heavy slaughter of her men . . . . Unauthorized by the constitution, without the sanction of Congress, to go beyond the line of defence, the vessel being disabled from committing further hostilities, was liberated with its crew. The legislature will doubtless consider whether, by authorizing measures of offence, also, they will place our force on an equal footing with that of its adversaries. I communicate all material information on this subject, that in the exercise of the important function confided by the constitution to the legislature exclusively, their judgment may form itself on a knowledge and consideration of every circumstance of weight. 7 Again, in the Louisiana Purchase, Jefferson acted first as only the broad theory of Hamilton would permit, and then left his deed to be ratified and paid for by the Congress. Afterwards in a letter to John Breckinridge, dated August 12, 1803, he declared: The Constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union. The executive in seizing the fugitive occurrence which so much advances the good of their country, have done an act beyond the Constitution. The Legislature in casting behind them metaphysical subtleties, and risking themselves like faithful servants, must ratify and pay for it, and throw themselves on their country for doing for them unauthorized, what we know they would have done for themselves had they been in a situation to do it.8 7 8 Id. at 328–29. 10 Writings of Thomas Jefferson, supra note 6, at 411. 52 The President’s Power in the Field of Foreign Relations Hamilton, in an article signed “Lucius Crassus,” howsoever inconsistently with his own theory of the powers of the Chief Executive, caustically commented on both Jefferson’s action and his message in the Tripolitan affair: The doctrine of the Message includes the strange absurdity, that without a declaration of war by Congress, our public force may destroy the life, but may not restrain the liberty, or seize the property of an enemy. This was exemplified in the very instance of the Tripolitan corsair. A number of her crew were slaughtered in the combat, and after she was subdued, she was set free with the remainder. . . . [A] perfect illustration of the unintelligible right, to take the life but not to abridge the liberty, or capture the property of an enemy. . . . The principle avowed in the Message, would authorize our troops to kill those of the invader, if they should come within reach of their bayonets, perhaps to drive them into the sea, and drown them; but not to disable them from doing harm, by the milder process of making them prisoners, and sending them into confinement. Perhaps it may be replied, that the same end would be answered by disarming, and leaving them to starve. The merit of such an argument would be complete by adding, that should they not be famished, before the arrival of their ships with a fresh supply of arms, we might then, if able, disarm them a second time, and send them on board their fleet, to return safely home.9 The controversy has continued. From time to time it has been the occasion of discussion in the public press and of debate in the Congress, few administrations having passed without the question being raised in one form or another. Andrew Jackson maintained that the designation of the President as the depositary of the Executive Power is, in itself, a source of power. Webster denied, without qualification, that the President has any powers except those specified in the Constitution. Chancellor Kent and Justice Story adopted the Hamiltonian view; Alfred Conkling rejected it. The names of prominent men who have kept the discussion alive, some in the support of one and some of the other view, are too numerous to mention here. Many recent articles in the public press and some debates in the last session of the Congress show that the question still is one upon which there is much difference of opinion. So acute did the question become during Lincoln’s administration that the House of Representatives in 1864 adopted a resolution declaring: That Congress has a constitutional right to an authoritative voice in declaring and prescribing the foreign policy of the United States, as 9 7 The Works of Alexander Hamilton 747–48 (John C. Hamilton ed., 1851). 53 Supplemental Opinions of the Office of Legal Counsel in Volume 1 well in the recognition of new Powers as in other matters; and it is the constitutional duty of the President to respect that policy not less in diplomatic negotiations than in the use of the national force when authorized by law; and the propriety of any declaration of foreign policy by Congress is sufficiently proved by the vote which pronounces it . . . .10 Sharp debate was heard on the question in the Senate in 1906. While participated in by many Senators, it was chiefly between Senator Spooner of Wisconsin and Senator Bacon of Georgia11—Senator Spooner supporting the broad theory of the President’s powers and Senator Bacon advocating the opposite view. Many of the arguments advanced are reminiscent of those of Hamilton and Madison. Senator Spooner, in the course of his argument quoted Mr. Justice Story as follows: That a power so extensive in its reach over our foreign relations could not be properly conferred on any other than the executive department will admit of little doubt. That it should be exclusively confined to that department without any participation of the Senate in the functions (that body being conjointly intrusted with the treatymaking power) is not so obvious. Probably the circumstance that in all foreign governments the power was exclusively confined to the executive department, and the utter impracticability of keeping the Senate constantly in session, and the suddenness of the emergencies which might require the action of the Government, conduced to the establishment of the authority in its present form. It is not, indeed, a power likely to be abused, though it is pregnant with consequences often involving the question of peace or war. 12 Senator Spooner also quoted from Professor Pomeroy as follows: I repeat that the Executive Department, by means of this branch of its power over foreign relations, holds in its keeping the safety, welfare, and even permanence of our internal and domestic institutions. And in wielding this power it is untrammeled by any other department of the Government; no other influence than a moral one can 10 Cong. Globe, 38th Cong., 2d Sess. 65–66 (Dec. 19, 1864). 40 Cong. Rec. 1417–31 (Jan. 23, 1906); 40 Cong. Rec. 2125–48 (Feb. 6, 1906). 12 40 Cong. Rec. 1420 (1906) (quoting 2 Joseph Story, Commentaries on the Constitution of the United States § 1567 (5th ed. 1891)). 11 54 The President’s Power in the Field of Foreign Relations control or curb it; its acts are political, and its responsibility is only political.13 Senator Bacon, in support of the other view, said in part: The terms upon which foreign ships shall be allowed to enter our ports or do business with us is an important one in our foreign relations, but the power to fix and determine them is altogether with Congress. .... . . . It is entirely within the competency of Congress to pass a law that no citizen of a given country shall come to this country, that no goods shall be received from it, that no merchandise shall go from this country to it, that no letters shall come from it, that there shall be no intercommunication of any kind whatever. Who doubts the power of Congress to do so? In other words, it is within the power of Congress to absolutely sunder the relations between this country and any given foreign country. When that is said the whole thing is said; when that is said the whole argument is exhausted as to where rests the supreme power in foreign affairs, because the whole must include every part. If it is within the power of Congress to absolutely sunder all relations of every kind, commercial, social, political, diplomatic, and of every other nature, it is certainly within the power of Congress to regulate and control every question subsidiary to that and included within it. Congress and not the President is supreme under the Constitution in the control of our foreign affairs. .... Compared to this great array of sovereign powers granted to Congress, those conferred upon the President present a most striking contrast. He is clothed with the great power and responsibility of the execution of the laws, but beyond this the only prerogative of sovereignty with which he is exclusively invested is the pardoning power, and even that is denied to him in cases of impeachment by the House and conviction by the Senate.14 13 Id. (quoting John Norton Pomeroy, An Introduction to the Constitutional Law of the United States § 672 (3d ed. 1875)). 14 40 Cong. Rec. 2132, 2134. 55 Supplemental Opinions of the Office of Legal Counsel in Volume 1 The broad powers which Hamilton declared to be vested in the Chief Executive have been exercised to a greater or lesser degree by many of the presidents. Washington’s exercise of power in derogation of the treaty with France and Jefferson’s actions in connection with the war with Tripoli and with the Louisiana Purchase have been noted heretofore. Other instances are the invasions of Mexico under Presidents Polk and Wilson; President McKinley’s agreement with England, France, Italy, and Germany to suppress the Boxer Revolution and the sending of a joint expeditionary force into the heart of China; and President Theodore Roosevelt’s action in connection with the Venezuela affair in 1901, and his armed assistance to Panama in its revolt against Columbia for the purpose of acquiring the Panama Canal Zone which he had been unable to acquire from Columbia. In all of these situations and in others of like character, the action taken was without authority from Congress, and that of Theodore Roosevelt in Panama was in direct conflict with the treaty with Columbia; yet in each instance the action met with the approval of the people and added to the prestige of the President. In other instances Presidents have attempted to exercise similar powers without success. Notable examples are President Tyler’s attempt to annex Texas in 1844; President Grant’s attempt to annex Santo Domingo; and President Wilson’s effort to make the United States a party to the League of Nations. On these and other occasions, the attempted exercise of broad powers was not approved by the people and the Presidents therefore failed of their purpose. An outstanding example of the exercise of executive power in the field of foreign relations is to be found in the Monroe Doctrine. First promulgated by President Monroe in 1823, that Doctrine has been consistently adhered to and has been many times restated and reasserted. As sometimes interpreted, it is broad enough to constitute in advance a declaration of war against any European or Asiatic nation that attempts to interfere in the political affairs of any independent government on either of the American Continents. A few writers have attempted to justify it under the President’s statutory authority to repel invasion or threatened invasion, but most have treated it as a purely executive declaration of the foreign policy of the United States. This Doctrine, unsupported for seventy-five years by any act of the Congress, has come to be almost, if not entirely, as much a part of our fundamental law as the Constitution itself. Daniel Webster said of it: I look upon it as a part of its treasures of reputation; and, for one, I intend to guard it. . . . I will neither help to erase it nor tear it out; nor shall it be, by any act of mine, blurred or blotted. It did honor to the sagacity of the government, and will not diminish that honor.15 President Cleveland referring to it said: 15 Quoted in Elihu Root, The Real Monroe Doctrine, 199 N. Am. Rev. 841, 843 (1914). 56 The President’s Power in the Field of Foreign Relations It may not have been admitted in so many words to the Code of International Law, but . . . it has its place in the Code of International Law as certainly and as securely as if it were specifically mentioned.16 And in 1920, in its “resolution of ratification” of the Treaty of Versailles, the Senate incorporated therein, among others, the following reservation: The United States will not submit to arbitration or to inquiry by the assembly or by the council of the League of Nations, provided for in said treaty of peace, any questions which in the judgment of the United States depend upon or relate to its long-established policy, commonly known as the Monroe Doctrine; said doctrine is to be interpreted by the United States alone and is hereby declared to be wholly outside the jurisdiction of said League of Nations and entirely unaffected by any provision contained in the said treaty of peace with Germany.17 While, as has been indicated, many Presidents have asserted the right to exercise the broad powers outlined by Hamilton, other Presidents have expressly disavowed this right. President Buchanan’s special message to the Congress, dated February 18, 1859, in connection with Central American affairs is an example of such a disavowal.18 That message called attention to the lawless conditions existing in Central America, to the harsh and unlawful treatment of citizens of the United States and to the arbitrary and unwarranted seizure and confiscation of United States vessels and cargoes in that section of the world. It then declared that the President, unlike the executives of foreign nations, was wholly without authority in his own right to take any action. It disavowed any right in the President, without authority from the Congress, to exert any force to correct conditions or to redress the many grievous wrongs that had been, and were continuing to be, perpetrated against United States citizens and their property, and expressly requested the Congress to grant the President that right.19 What a contrast between this action and the action of other Presidents under similar circumstances! The divergent views of different Presidents on the extent of the executive power are further illustrated by a comparison of statements made by Presidents 16 Quoted in Theodore S. Woolsey, Monroe Doctrine Fundamentals, 199 N. Am. Rev. 833, 834–35 (1914). 17 59 Cong. Rec. 4577. 18 Special Message of the President on the Protection of the Transit Routes Across the Isthmus, in The Messages of President Buchanan 200 (J. Buchanan Henry comp., 1888). 19 Id. at 201–02. 57 Supplemental Opinions of the Office of Legal Counsel in Volume 1 Theodore Roosevelt and William Howard Taft. Referring to his action in connection with the acquisition of the Panama Canal Zone, Mr. Roosevelt said: If I had followed traditional, conservative methods, I would have submitted a dignified state paper of probably two hundred pages to Congress and the debate on it would have been going on yet; but I took the Canal Zone and let Congress debate.20 Speaking in his autobiography of his action in 1905 in putting custom houses in Santo Domingo under American control, Mr. Roosevelt said: The Constitution did not explicitly give me power to bring about the necessary agreement with Santo Domingo. But the Constitution did not forbid my doing what I did. I put the agreement into effect, and I continued its execution for two years before the senate acted; and I would have continued it until the end of my term, if necessary, without any action by Congress. But it was far preferable that there should be action by Congress, so that we might be proceeding under a treaty which was the law of the land and not merely by a direction of the Chief Executive which would lapse when that particular executive left office. I therefore did my best to get the Senate to ratify what I had done.21 Mr. Roosevelt further said in his autobiography: The most important factor in getting the right spirit in my Administration, next to the insistence upon courage, honesty, and a genuine democracy of desire to serve the plain people, was my insistence upon the theory that the executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by the Congress under its Constitutional powers. My view was that every executive officer, and above all every executive officer in high position, was a steward of the people bound actively and affirmatively to do all he could for the people, and not to content himself with the negative merit of keeping his talents undamaged in a napkin. I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Con20 Quoted in Note, Constitutional Law—Delegation of Powers—External Sovereignty, 11 Temple L.Q. 418, 421 n.27 (1937). 21 Theodore Roosevelt, An Autobiography 551 (1913). 58 The President’s Power in the Field of Foreign Relations stitution or by the laws. Under this interpretation of executive power I did and caused to be done many things not previously done by the President and the heads of the departments. I did not usurp power, but I did greatly broaden the use of executive power. In other words, I acted for the public welfare, I acted for the common well-being of all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition. I did not care a rap for the mere form and show of power; I cared immensely for the use that could be made of the substance. 22 Mr. Taft, on the other hand, in his book Chief Magistrate, published after his retirement from office, said: The true view of the Executive functions is, as I conceive it, that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise. Such specific grant must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest, and there is nothing in the Neagle case and its definition of a law of the United States, or in other precedents, warranting such an inference. The grants of Executive power are necessarily in general terms in order not to embarrass the Executive within the field of action plainly marked for him, but his jurisdiction must be justified and vindicated by affirmative constitutional or statutory provision, or it does not exist. 23 In the same book Mr. Taft, after quoting from President Roosevelt’s autobiography the passage last quoted above, makes this statement: My judgment is that the view of . . . Mr. Roosevelt, ascribing an undefined residuum of power to the President[,] is an unsafe doctrine and that it might lead under emergencies to results of an arbitrary character . . . .24 For many years the Supreme Court did not definitely take either side in the controversy. It did hold that in matters of foreign relations the judiciary had no authority, such matters being political in their nature and committed solely to the charge of the political authorities of the government; but it did not distinguish 22 Id. at 388–89. William Howard Taft, Our Chief Magistrate and His Powers 139–40 (1916). 24 Id. at 144. 23 59 Supplemental Opinions of the Office of Legal Counsel in Volume 1 between the Congress and the executive, nor designate which, if either, of these two political branches of the government had the higher authority. Commentators on the subject cite many decisions of the Supreme Court as tending to support the one theory or the other. However, most decisions of that Court relating to matters in the field of foreign affairs, when carefully examined, involve both congressional and presidential action, and, therefore, involve some form of purported congressional delegation of power. Such decisions are not pertinent here, since the question, so far from being one of congressional delegation of power, is one of what powers the President may exercise without authority from Congress. Of the decisions usually cited those in Kansas v. Colorado25 and In re Neagle26 have heretofore been most often relied upon by the exponents of the first mentioned theory, and that in Little v. Barreme27 by the exponents of the second theory. These decisions, however, fall far short of being decisive of the question. The decision in Kansas v. Colorado is much stressed by advocates of the Hamiltonian theory. That decision relates only to the powers of the judiciary, but in discussing and defining those powers the Court adopts much of the reasoning advanced by Hamilton in connection with the executive power, especially that based on the difference in the language of the several constitutional grants of powers. The decision in the Neagle case is also urged in support of that theory. It holds that the President’s duty to “take care that the laws be faithfully executed” is not “limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms,” but that it includes the “rights, duties, and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the Government under the Constitution[.]”28 However, this part of the decision is dictum, since the court justified the action taken by the President in that case under an express congressional grant of authority. The decision in Little v. Barreme, on the other hand, lends some comfort to the advocates of the Madisonian theory. Apparently it holds that in the field of foreign relations if the Congress has spoken, the President is controlled by the act of that body and by the policy prescribed thereby; but it seems to intimate, in a dictum, that if the Congress has not spoken the powers of the President as the Chief Executive are sufficient to enable him to meet any situation that may arise.29 25 206 U.S. 46 (1907). 135 U.S. 1 (1890). 27 6 U.S. (2 Cranch) 170 (1804). 28 135 U.S. at 64. 29 6 U.S. at 177–78. 26 60 The President’s Power in the Field of Foreign Relations The most recent and far reaching decision of the Supreme Court on the question is that in United States v. Curtiss-Wright Export Corp.30 In that decision, rendered December 21, 1936, the Court held: The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.31 It further held that the government has powers of sovereignty not granted by the Constitution—powers which prior to the Declaration of Independence were in the English crown; that these powers were wrested from the crown by the colonies collectively and not individually; and that when so wrested from the crown they vested, not in the individual colonies, but in the colonies as a unit. The Court declared that among such powers was the power to deal with foreign nations. The Court further held in the Curtiss-Wright case that in foreign affairs “the President alone has the power to speak or listen as a representative of the nation,” being the “‘sole organ of the nation in its external relations’” and responsible only to the Constitution for his conduct.32 It then said: It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the maintenance of our international relations, embarrassment—perhaps serious embarrassment—is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.33 30 299 U.S. 304 (1936). Id. at 315–16. 32 Id. at 319 (quoting 10 Annals of Cong. 613 (1800) (remarks of John Marshall)). 33 Id. at 319–20. 31 61 Supplemental Opinions of the Office of Legal Counsel in Volume 1 It must be remembered, however, that the Curtiss-Wright case involved, not the question of the President’s power to act without congressional authority, but the question of his right to act under and in accord with an act of Congress. In that case the constitutionality of the act under which the President had proceeded was assailed on the ground that it delegated legislative powers to the President. Much of the decision is dicta, and the ratio decidendi is contained in the following language: When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the President’s action—or, indeed, whether he shall act at all—may well depend, among other things, upon the nature of the confidential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreign relations. This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U.S. 299, 311 [(1915)], “As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrassing such powers.” (Italics supplied.)34 It is apparent, therefore, that the case leaves much of the controverted question still unsettled. It places internal and external affairs in separate categories, and holds that the strict rule applied by the court to congressional delegations of power to the President in connection with internal affairs does not apply to such delegations of power in connection with external affairs. It intimates that the President might act in external affairs without congressional authority, but it leaves undecided the question whether the Congress can enact a statute in derogation of the President’s power in this field—for example, a mandatory embargo or neutrality act—which question involves the further question whether the President may, in dealing with foreign nations, entirely disregard a statute which the Congress has enacted, and which prescribes a policy to be followed. On this point the decision of the Supreme Court in Little v. Barreme is of interest, and perhaps of importance. As before stated, it intimates that when the Congress has not spoken the President’s powers over foreign affairs are unlimited, but apparently holds that when the Congress has spoken, his powers are limited to 34 Id. at 321–22. 62 The President’s Power in the Field of Foreign Relations the policy declared by the act of the Congress. Whether the Court would today hold this to be a correct statement of the law, or even the correct interpretation of its former decision, is a matter of conjecture. In view of what has been said, it is apparent that from the beginning the question of the extent of the President’s powers has been a controversial one, and that the answer to the question is to be found in the statement of Chief Justice Marshall in Marbury v. Madison: [T]he president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.35 In any government, the exercise of political powers is dependent upon the will of the sovereign. In the United States the people constitute the sovereign, and therefore the successful exercise of any political power by the executive is dependent upon public opinion. For this reason it is doubtful if the question of the extent of the President’s powers ever will be definitely determined. Public opinion is changeable; it may favor one thing today and another tomorrow. Therefore, the power which the public will permit the executive to exercise will vary from time to time according to the circumstances involved. Like Hamilton and Madison, the average man is never consistently either a strict or a liberal constructionist. He views the Constitution and the government merely as instruments through which he may on the one hand secure the performance of those acts of which he approves and on the other prevent the performance of those acts of which he does not approve. Therefore, if the act sought to be done is one of which the general public approves it will accept any construction, however liberal, which permits the act to be done; but if the act is one of which it does not approve, it will accept any construction, however restricted, which prevents the act from being done. This was strikingly illustrated during the Wilson administration. When President Wilson, without any authority from the Congress, seized Vera Cruz, and when he later sent an expeditionary force into Mexico, despite criticism in many quarters, the public generally approved those actions. But when later he took the leadership in establishing the League of Nations and in his dealings with European countries practically committed the United States to participation therein, public approval perceptibly waned and the Senate rejected the treaty. As a result thereof the President’s prestige was greatly impaired, with consequences injurious to his political influence and to his health. It follows that a President today, in the performance of an act of which the general public approves, may assume and exercise a power with the approbation 35 5 U.S. (1 Cranch) 137, 165–66 (1803). 63 Supplemental Opinions of the Office of Legal Counsel in Volume 1 of the public; but tomorrow, in the performance of some act of which the public does not approve, he will exercise the same or a like power at his peril. The question must be considered realistically. It is essentially practical and does not admit of a legalistic treatment that fails to take into account human nature in the individual and in the mass. If it be shocking to legal concept to conclude that a President at one time under the Constitution has the power to do an act in respect of foreign relations, and that the same or another President under the same Constitution has not the power to do such an act at another time, the trouble is not with the conclusion but with the concept. History corroborates the conclusion, while at the same time overturning any legal theory on the subject that does not accord with experience. Even when Conkling was bitterly attacking President Johnson for assuming unwarranted executive power he said: It is not like the assumption of a questionable power from good motives and for beneficent ends; . . . where the acquiescence of the nation may rightly be held a practical sanction and affirmation of the power.36 Presidents will continue in the future to draw their executive power respecting foreign relations from the Constitution, as they have done in the past, and to exercise it. When the people approve the exercise, the existence of the power under the Constitution will be proved; when they disapprove the exercise, the existence of the power under the Constitution will be disproved. In this sphere, indeed, “The event is a great teacher.” The theory of Hamilton and the theory of Madison have been debated continuously—and the argument will persist. The two views have not been and cannot be reconciled in the realm of logic; in the practical world they converge. In the field of foreign relations, the Chief Executive moves in a zone of twilight* where he may proceed with assurance of his powers under the Constitution only when the people follow and approve. As said by Woodrow Wilson: 36 Alfred Conkling, The Powers of the Executive Department of the Government of the United States 134–35 (1866) (emphasis supplied). * Editor’s Note: Fifteen years later, Justice Robert Jackson used the same phrase—“a zone of twilight”—in his famous Steel Seizure Case concurrence, albeit in more specific reference to cases in which Congress has not spoken to a matter of foreign affairs but the President nevertheless determines to take action. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (“When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.”). In 1937, when Assistant Solicitor General Bell wrote this opinion, Jackson was the Assistant Attorney General for the Antitrust Division. In March 1938, Jackson was appointed Solicitor General; and in January 1940 he was appointed Attorney General of the United States. 64 The President’s Power in the Field of Foreign Relations If he [the President] rightly interpret the national thought and boldly insist upon it, he is irresistible.37 II. The President’s Power to Repel Invasion Better to be awakened by the alarm-bell than to perish in the flames.—Burke Closely related to the subject discussed under Part I is the power of the President to repel invasion. That power is unquestioned. The exponents of the Hamiltonian theory contend that the power, without statutory authority, would be inherent in the President as the Chief Executive; but it is not necessary to rely on this view, since the statutes expressly provide that “whenever the United States shall be invaded or in imminent danger of invasion by any foreign nation,” the President may use the military and naval forces to repel such invasion. In the Prize Cases, the Supreme Court said: But by the Acts of Congress . . . he is authorized to call[] out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States. If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority.38 In Martin v. Mott, the Supreme Court took a somewhat broader view of this power of the President. In that case Justice Story, speaking for the Court, said: For the more clear and exact consideration of the subject, it may be necessary to refer to the constitution of the United States, and some of the provisions of the act of 1795. The constitution declares, that congress shall have power “to provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions”: and also “to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States.” In pursuance of this authority, the act of 1795 has provided, “that whenever the United States shall be invaded, or be in imminent danger of invasion from 37 38 Woodrow Wilson, Constitutional Government in the United States 68 (1908). 67 U.S. (2 Black) 635, 668 (1862). 65 Supplemental Opinions of the Office of Legal Counsel in Volume 1 any foreign nation or Indian tribe, it shall be lawful for the president of the United States to call forth such number of the militia of the state or states most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his order for that purpose to such officer or officers of the militia as he may think proper.” And like provisions are made for the other cases stated in the constitution. It has not been denied here, that the act of 1795 is within the constitutional authority of congress, or that congress may not lawfully provide for cases of imminent danger of invasion, as well as for cases where an invasion has actually taken place. In our opinion, there is no ground for a doubt on this point, even if it had been relied on, for the power to provide for repelling invasions includes the power to provide against the attempt and danger of invasion, as the necessary and proper means to effectuate the object. One of the best means to repel invasions is to provide the requisite force for action, before the invader himself has reached the soil. The power thus confided by congress to the president, is, doubtless, of a very high and delicate nature. A free people are naturally jealous of the exercise of military power; and the power to call the militia into actual service, is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a correspondent responsibility. It is, in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion. If it be a limited power, the question arises, by whom is the exigency to be judged of and decided? Is the president the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the president are addressed, may decide for himself, and equally open to be contested by every militiaman who shall refuse to obey the orders of the president? We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the president, and that his decision is conclusive upon all other persons. We think that this construction necessarily results from the nature of the power itself, and from the manifest object contemplated by the act of congress. The power itself is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the Union. . . . If we look at the language of the act of 1795, every conclusion drawn from the nature of the power itself, is strongly fortified. The words are, “whenever the United States shall be invaded, or be in 66 The President’s Power in the Field of Foreign Relations imminent danger of invasion, &c., it shall be lawful for the president, &c., to call forth such number of the militia, &c., as he may judge necessary to repel such invasion.” The power itself is confided to the executive of the Union, to him who is, by the constitution, “the commander-in-chief of the militia, when called into the actual service of the United States,” whose duty it is to “take care that the laws be faithfully executed,” and whose responsibility for an honest discharge of his official obligations is secured by the highest sanctions. He is necessarily constituted the judge of the existence of the exigency, in the first instance, and is bound to act according to his belief of the facts.39 The use in the statutes and decisions of the term “imminent danger of invasion” raises another question. Assuming that the President’s power to use force against a foreign nation is limited to his statutory power to repel an “invasion” or an “imminent danger of invasion,” what constitutes an “imminent danger of invasion”? Under what circumstances may the President act, and how far may he go, under his authority to meet an “imminent danger of invasion”? As mentioned in Part I of this memorandum, the Monroe Doctrine has sometimes been justified under the powers of the President to repel threatened invasions; but if this power be the sole justification for the Monroe Doctrine, how far may it be extended under present conditions? If at the time the Monroe Doctrine was announced—the day of coach by land and sail by sea—the interference of a foreign nation in South American affairs constituted a threat of invasion of the United States, what is necessary to constitute such a threat today in the world of the airplane and the submarine? In the light of present means of rapid transportation and destructive warfare, how far is the President justified in finding in military preparations and activities by foreign nations threat of invasion? Do the military activities and demonstrations of Japan, for example, constitute a threat of invasion of the Philippine Islands or of Hawaii? Could there be sufficient military developments and demonstrations on islands in the Pacific or Atlantic or on the European or the Asiatic Continent to constitute such a threat? Moreover, what does the term “invasion” embrace? Is it limited to territorial invasion, or does it comprehend, also, invasion of the rights of this country as a sovereign nation, wherever committed? Again, attention is called to President Jefferson’s message to Congress in connection with the Tripolitan affair. Jefferson justified the action taken on the ground that he had sent the fleet to the Mediterranean “with orders to protect our commerce against the threatened attack.”40 Since, in the same document, he disclaimed 39 40 25 U.S. (12 Wheat.) 19, 27–30, 31 (1827). 3 Writings of Thomas Jefferson, supra note 6, at 328. 67 Supplemental Opinions of the Office of Legal Counsel in Volume 1 any authority to act without authority from the Congress, perhaps he deemed his statutory authority to repel invasion or threatened invasion as sufficient authority. The real answer here, also, is that the determination of when there is invasion or imminent danger of invasion and power to deal with the subject are political questions which can be resolved only through the exercise of the President’s judgment supported by the will of the people. Woodrow Wilson said: [The President] may be both the leader of his party and the leader of his nation, or he may be one or the other. If he lead the nation, his party can hardly resist him. His office is anything he has the sagacity and force to make it.41 And as stated by Justice Story in Martin v. Mott: It is no answer, that such a power [the power to provide against the danger of invasion] may be abused, for there is no power which is not susceptible of abuse. The remedy for this, as well as for all other official misconduct, if it should occur, is to be found in the constitution itself. In a free government, the danger must be remote, since, in addition to the high qualities which the executive must be presumed to possess, of public virtue, and honest devotion to the public interests, the frequency of elections, and the watchfulness of the representatives of the nation, carry with them all the checks which can be useful to guard against usurpation or wanton tyranny. 42 III. The President’s Position in the Far Eastern and Spanish Affairs as Affected by the Neutrality Act of 1937 The transaction of business with foreign nations is Executive altogether.—Jefferson If the Hamiltonian theory of the President’s powers be accepted in its broadest sense, the Neutrality Act of 1937 may be treated by him as advisory only, to be put into effect or not at a particular time as he may determine to be for the best interests of the country. If the Madisonian view be adopted, however, even with material qualifications, the Neutrality Act binds the President and makes it his constitutional duty to “take care” that it is enforced. 41 42 Constitutional Government, supra note 37, at 69. 25 U.S. at 32. 68 The President’s Power in the Field of Foreign Relations Since considerable misapprehension has appeared in the public press with respect to the effect of the Neutrality Act of 193743 upon prior existing treaties entered into between this country and foreign nations, it is to be observed at the outset that it is settled by the decisions of the Supreme Court that under the Constitution both treaties and acts of Congress are the supreme law of the land; that neither is superior to the other; and that in case of conflict, that which is later in date controls.44 It follows that to the extent that the Neutrality Act of 1937 conflicts with any prior treaty, the treaty is abrogated by the Act. The legislative history of the Act is in accord with this doctrine. During the session at which the Joint Resolution of February 29, 193645 was adopted, the House Committee on Foreign Affairs had reported a resolution (H.J. Res. 422) containing the following section: SEC. 16. If the President shall find that any of the provisions of this Act, if applied, would contravene treaty provisions in force between the United States and any foreign country before such provisions shall become applicable as to such foreign country or countries, he shall enter into negotiations with the government of such country for the purpose of effecting such modification of the treaty provisions as may be necessary, and if he shall be unable to bring about the necessary modifications, he may in his discretion, but before such provisions shall become applicable as to such foreign country or countries he shall give notice of termination and terminate the treaty in accordance with the terms thereof. In connection therewith the Committee’s report stated: Section 16. This section has created quite an argument in your committee, on the question as to whether or not any of the provisions of this bill would violate any treaties between the United States and any foreign countries. While this section provides that if the President shall find that any of the provisions of this act, if applied, would contravene treaty provisions in force between the United States and any foreign country, he may enter into negotiations with the government of such country for the purpose of effecting such modification of the treaty provisions which will be necessary, and if he shall be unable to bring about the necessary modifications, he may, in his discretion, give notice of the termination of the treaty. Many of our 43 50 Stat. 121. See Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox Ltd., 291 U.S. 138, 160 (1934); Cook v. United States, 288 U.S. 102, 118–19 (1933); Ex Parte Webb, 225 U.S. 663, 683 (1912); Head Money Cases, 112 U.S. 580, 597–99 (1884). 45 49 Stat. 1152. 44 69 Supplemental Opinions of the Office of Legal Counsel in Volume 1 treaties with European countries have a provision of 1 year’s notice of termination. The committee is very anxious to see that no treaty rights are violated . . . .46 The Committee later abandoned this more liberal resolution and reported a substitute resolution, which became the Joint Resolution of February 29, 1936. The Committee’s report47 made no explanation of the change of position but Chairman McReynolds explained on the floor of the House that a compromise had been necessary.48 The Committee was accused of “retreat and surrender,” and “abandonment of everything that committee stood for.”49 During the consideration of the substitute resolution in the House and in the Senate there was no mention of the question of the effect of the resolution on treaties. The Joint Resolution of February 29, 1936 was substantially reenacted in section 1 of the Neutrality Act of 1937. A. The Spanish Situation Section 1(c) of the Neutrality Act of 1937 provides as follows: Whenever the President shall find that a state of civil strife exists in a foreign state and that such civil strife is of a magnitude or is being conducted under such conditions that the export of arms, ammunition, or implements of war from the United States to such foreign state would threaten or endanger the peace of the United States, the President shall proclaim such fact, and it shall thereafter be unlawful to export, or attempt to export, or cause to be exported, arms, ammunition, or implements of war from any place in the United States to such foreign state, or to any neutral state for transshipment to, or for the use of, such foreign state.50 Acting under that provision, the President on May 5, 1937 found and proclaimed that a state of civil strife unhappily exists in Spain and that such civil strife is of a magnitude and is being conducted under such conditions that the export of arms, ammunition, or implements of war from the 46 H.R. Rep. No. 74-1928, at 8 (1936). H.R. Rep. No. 74-2001 (1936). 48 80 Cong. Rec. 2240 (1936). 49 Id. at 2241. 50 50 Stat. at 121–22. 47 70 The President’s Power in the Field of Foreign Relations United States to Spain would threaten and endanger the peace of the United States . . . .51 It is thus obvious that the President, with ample justification for his finding, followed, with respect to the civil strife existing in Spain, precisely the course which he was authorized by the Congress to take. Under the facts any criticism of the President’s action in this situation cannot be directed fairly to any unwarranted assumption of power. Nor can fault be found properly on the ground that circumstances in Spain did not justify his finding— everyone knows that they did, and in any event, the Congress left it to the President’s sole discretion to judge whether the facts in a given situation justify such a finding and proclamation. For the reason stated above, any earlier treaty with Spain inconsistent with the Neutrality Act of 1937 was abrogated by that Act and the President’s action under it, to the extent of the inconsistency. B. The Far Eastern Situation Section 1(a) of the Neutrality Act of 1937 provides as follows: Whenever the President shall find that there exists a state of war between, or among, two or more foreign states, the President shall proclaim such fact, and it shall thereafter be unlawful to export, or attempt to export, or cause to be exported, arms, ammunition, or implements of war from any place in the United States to any belligerent state named in such proclamation, or to any neutral state for transshipment to, or for the use of, any such belligerent state.52 The President has not yet found under this section “that there exists a state of war between” China and Japan. Irrespective of whether the provisions of section 1 are mandatory, requiring the President to find the existence of a state of war when in fact it does exist, or discretionary, leaving it to him, when there exists a state of war, to determine whether and when he shall make a finding of its existence so as to make the Neutrality Act applicable to it, his position in not having made a finding that a state of war exists between China and Japan is fully justified, notwithstanding that to many people the existence of war in China is an accepted fact. Japan has not formally declared war on China, nor has China formally declared war on Japan. So far has each refrained from that course, that diplomatic relations between the two countries have not even been severed but continue as in time of 51 52 2 Fed. Reg. 776, 777. 50 Stat. at 121. 71 Supplemental Opinions of the Office of Legal Counsel in Volume 1 peace, each maintaining in the country of the other an ambassador and consuls, thus indicating that neither conceives that war exists between them. While diplomatic relations are often severed before war begins, the existence of diplomatic relations after the commencement of war would be novel. Moreover, no neutral nation has formally recognized the existence of a state of war as between China and Japan. Other circumstances inconsistent with a finding that there exists a state of war between these two nations are that the Japanese blockade is not that of a belligerent, being directed only against Chinese vessels, and that the United States and other countries continue to harbor their warships in Chinese waters, and to rescue and repatriate their nationals, as they could not do in case of war between the two nations. Should the President find that there exists a state of war between China and Japan, this nation would become the first to characterize the conflict between them as war. Such a finding on the part of the President would have the effect of causing the Neutrality Act to abrogate the commerce features of the Nine Power Treaty—a result not lightly to be contemplated—while so long as he refrains, the Act and the Treaty are not in conflict and both are fully effective. Such a course would be tantamount to a declaration of war by this country between those two nations, notwithstanding that neither has formally declared war on the other and might well cause one or both to do so, to say nothing of causing repercussions among the other countries of the world, and such complications as would greatly lessen the possibilities of a peaceful solution of the difficulties involved— particularly through the influence of the United States. While the Neutrality Act does not disclose whether the President shall find that there exists a state of war only when there has been a formal declaration as between two nations, or also when a de facto state of war exists, the existing situation in the Far East is such that on either construction the course so far pursued by the President is sound and within his authority under the Act for the reasons heretofore indicated. As to whether, when there exists a state of war, the Neutrality Act is mandatory upon the President to find its existence, the position may be taken that the act by its terms leaves to the President the discretion to find or not to find the existence of a state of war—or at least the discretion as to when to make a finding. This, however, would be a strained construction and not borne out by the legislative history of the Act. The President at the time he approved the Neutrality Act of 1936 indicated by his statement that the provisions of section 1 were too inflexible, saying: The latter section terminates at the end of February 1936. This section requires further and more complete consideration between now and that date. Here again the objective is wholly good. It is the policy of this Government to avoid being drawn into wars between other nations, but it is a fact that no Congress and no Executive can foresee all possible future situations. History is filled with unfore- 72 The President’s Power in the Field of Foreign Relations seeable situations that call for some flexibility of action. It is conceivable that situations may arise in which the wholly inflexible provisions of Section 1 of this Act might have exactly the opposite effect from that which was intended. In other words, the inflexible provisions might drag us into war instead of keeping us out. The policy of the Government is definitely committed to the maintenance of peace and the avoidance of any entanglements which would lead us into conflict.53 Upon this phase of the matter Congressman Johnson of the House Committee on Foreign Affairs, in explanation of the Joint Resolution of February 29, 1936, made the following explanation: Someone expressed opposition to the bill because it was not mandatory and delegated authority to the President. Five of its prohibitions are mandatory and the President has no discretion whatever, and only the two relating to the use of American ports by submarines and the travel of Americans on belligerent vessels are left to the President’s discretion, and even in these the delegation of discretion is so circumscribed that it is practically mandatory, since he is required to act if either of a number of contingencies therein mentioned should arise.54 The mandatory provisions of that Resolution were reenacted as section 1 of the Joint Resolution of May 1, 1937,55 without pertinent change of language. It seems clear, therefore, from the language of the Act and from its legislative history, that as to section 1(a) the Congress did not intend to leave anything to the discretion of the President, and did intend that the provisions of that section should be mandatory on him when it came to his knowledge that a state of war existed. The express granting of discretion in connection with section 1(c) emphasizes this construction. Since the Act does not operate on a given situation until the President makes a finding, it always lies within his power, when there exists a state of war, so to find or not to find. He could not be fairly criticized, certainly, for not making such a finding until after the lapse of a reasonable time, under the circumstances, after the commencement of a state of war. In any view, he would be entitled to such a reasonable time to investigate, consider, come to his conclusion, and act. Should he delay, however, beyond such a reasonable time, he could justify his negative action only if the delay should meet with popular approval. Should there be, 53 Quoted in Allen W. Dulles & Hamilton Fish Armstrong, Can We Be Neutral? 150 (2d ed. 1936). 80 Cong. Rec. 2245. 55 50 Stat. 121. 54 73 Supplemental Opinions of the Office of Legal Counsel in Volume 1 instead, popular disapproval, his position (even if placed on the Hamiltonian view) would be difficult to defend. These considerations would become pressing in the event that Japan should formally declare war on China. Another position which has been suggested is that the Neutrality Act of 1937 contemplates a finding that there exists a state of war only when there has been a formal declaration of war, and not in case of any de facto war. It is true that the practice of the Roman Empire was not to recognize the existence of a state of war until war had been formally declared; but that procedure fell into early disuse, and for many centuries it was the general custom not to formally declare war. The Supreme Court has declared that a state of war may exist without a formal declaration of war.56 The Second Hague Conference of 1907, in its Convention III, contains provisions looking toward reestablishment of the Roman practice: Article 1 The contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war. Article 2 The existence of a state of war must be notified to the neutral Powers without delay, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph.57 But the effort was rendered largely nugatory by the last clause of Article 2, which provides: Neutral Powers, nevertheless, cannot rely on the absence of notification if it is clearly established that they were in fact aware of the existence of a state of war.58 The modern tendency seems to be for nations not to make formal declarations of their wars, and the suggested construction of the Act as contemplating a finding 56 The Prize Cases, 67 U.S. (2 Black) 635, 668 (1862); Bas v. Tingy (The Eliza), 4 U.S. (4 Dall.) 37, 40–41 (1800) (opinion of Washington, J.); Miller v. United States, 78 U.S. (11 Wall.) 268, 306 (1870); The Pedro, 175 U.S. 354, 363 (1899). 57 Hague Convention (III) Relative to the Opening of Hostilities, Oct. 18, 1907, 36 Stat. 2259, 2271. 58 Id. 74 The President’s Power in the Field of Foreign Relations by the President only in case of formally declared war is highly technical and unconvincing. A practical course which the President may see fit to follow is that set by President Wilson in connection with the arming of American merchant vessels just prior to our entrance into the World War. On February 25, 1917, he went before the Congress and asked its approval of his decision to authorize merchant ships to carry defensive arms and to use them in the protection of lives and property in their legitimate and peaceful pursuits at sea. President Wilson said in part: No doubt I already possess that authority without special warrant of law, by the plain implication of my constitutional duties and powers; but I prefer in the present circumstances not to act upon general implication. I wish to feel that the authority and the power of the Congress are behind me in whatever it may become necessary for me to do. We are jointly the servants of the people and must act together and in their spirit, so far as we can divine and interpret it.59 So here, the President might submit the instant situation to the Congress in a message sufficiently setting forth the facts to show the serious complications involved and the undesirable results likely to flow from precipitate steps, together with an outline of such plan of action as he may wish to propose, requesting the Congress to cooperate with the Executive in dealing with the crisis. Such a course would tend to abate any criticism of the President because he has not or does not find under section 1(a) of the Neutrality Act that there exists a state of war between China and Japan, and does not say why he fails to do so. It may be peculiarly adapted to the situation which will exist should Japan formally declare war on China. Should the policy outlined by the President in such a message meet with popular approval its purposes would be accomplished. The law is the general will . . . .—Volney GOLDEN W. BELL Assistant Solicitor General 59 Quoted in Corwin, supra note 5, at 152. 75 Supplemental Opinions of the Office of Legal Counsel in Volume 1 APPENDIX Authorities Consulted American Historical Review, vol. 23, no. 1, p. 868 (1917–18). American Political Science Review, vol. 12, p. 324 (1918). Armstrong, Hamilton Fish & Allen W. Dulles, Can We Be Neutral? (2d ed. 1936). Brooklyn Law Review, vol. 6, no. 3, pp. 382–85 (Mar. 1937). Carnegie Endowment for International Peace, Division of International Law, Pamphlet Series No. 12, The Hague Convention (III) of 1907 Relative to the Opening of Hostilities (1915). Chambrun, Adolphe de, The Executive Power in the United States: A Study of Constitutional Law (1874). Columbia Law Review, vol. 36, no. 7, p. 1162 (Nov. 1936). Conkling, Alfred, The Powers of the Executive Department of the Government of the United States (1866). Corwin, Edward S., The President’s Control of Foreign Relations (1917). Dulles, Allen W. & Hamilton Fish Armstrong, Can We Be Neutral? (2d ed. 1936). Elliot, Jonathan, Journal and Debates of the Federal Convention, vol. 4 (1830). Fordham Law Review, vol. 6, no. 2 (May 1937). Georgetown Law Journal, vol. 25, no. 3, pp. 738–40 (Mar. 1937). George Washington Law Review, vol. 5, no. 2, p. 271 (Jan. 1937). Hamilton, Alexander, The Works of Alexander Hamilton, vol. 7 (John C. Hamilton ed., 1851). Harvard Law Review, vol. 50, no. 4, p. 691 (Feb. 1937). Hershey, Amos S., The International Law and Diplomacy of the Russo-Japanese War (1906). Hudson, Manley O., International Legislation, vol. 3 (1931). Hyde, Charles Cheney, International Law, Chiefly as Interpreted and Applied by the United States, vol. 2 (1922). Jefferson, Thomas, The Writings of Thomas Jefferson, vols. 3, 9, and 10 (Andrew A. Lipscomb ed., mem. ed. 1903–04). Latané, John Halladay, A History of American Foreign Policy (1927). MacDonald, William, Select Documents Illustrative of the History of the United States, 1776–1861 (1930). Madison, James, Letters and Other Writings of James Madison, vol. 1 (1865). Matthews, John Mabry, The Conduct of American Foreign Relations (1922). Maryland Law Review, vol. 1, no. 2, pp. 167–71 (Feb. 1937). Moore, John Bassett, A Digest of International Law, vol. 7 (1906). North American Review, vol. 199 (1914). Oppenheim, Lassa, International Law, vol. 2 (A.D. McNair ed., 4th ed. 1926). Phillipson, Coleman, International Law and the Great War (1915). 76 The President’s Power in the Field of Foreign Relations Pomeroy, John Norton, An Introduction to the Constitutional Law of the United States (7th ed. 1883). Reinsch, Paul S., Readings on American Federal Government (1909). St. John’s Law Review, vol. 11, no. 2 (Apr. 1937). Savage, Carlton, Policy of the United States Toward Maritime Commerce in War, vol. 2 (1934). Taft, William Howard, The Presidency: Its Duties, Its Powers, Its Opportunities and Its Limitations (1916). Temple Law Quarterly, vol. 11, no. 3, pp. 418–21 (Apr. 1937). Warren, Charles, Presidential Declarations of Independence (1930). Wheaton, Henry, Wheaton’s Elements of International Law, vol. 2 (A. Berriedale Keith ed., 6th English ed. 1929). Willoughby, Westel W., The Constitutional Law of the United States, vol. 1 (2d ed. 1929). White, Howard, Executive Influence in Determining Military Policy in the United States (1925). Wright, Quincy, The Control of American Foreign Relations (1922). Yale Law Journal, vol. 16, no. 1, pp. 6–24 (Nov. 1906). Yale Law Journal, vol. 25, no. 8, pp. 599–616 (June 1916). 77

Write a legal research memo on the following topic.

The President’s Power in the Field of Foreign Relations The first section of this memorandum canvasses the historical precedents that delineate the President’s prerogatives vis-à-vis Congress in foreign relations. These precedents tend to fall into one of two categories: those reflecting the Hamiltonian view that the President as Chief Executive has sole and unlimited authority to determine the nation’s foreign policy, and those reflecting the Madisonian view that Congress as the law-making body has primary authority to determine the nation’s foreign policy, which the President must take care to enforce. The second section of this memorandum concludes that the power of the President to repel invasion is unquestioned. It would not be necessary to resolve the conflict between the Hamiltonian and Madisonian views in the event of an invasion, because statutes expressly provide that “whenever the United States shall be invaded or in imminent danger of invasion by any foreign nation,” the President may use the military and naval forces to repel such invasion. The third section of this memorandum discusses the application of the Neutrality Act of 1937 to the Spanish Civil War and the China-Japan conflict. November 8, 1937 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL* I. The President as the Depositary of the Executive Power It is important to bear in mind that we are here dealing . . . with . . . the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress . . . .—Mr. Justice Sutherland There are two major contentions regarding the extent of the President’s power in the field of foreign relations: (1) That the President, as the Chief Executive, has the sole and unlimited power—that his designation in the Constitution as the depositary of the Executive Power is, in itself, a source of power. (2) That while the President as the Chief Executive is the sole spokesman of the nation in the field of foreign relations, the Congress as the law-making body may prescribe the policy to be followed, and the President in dealing with foreign nations must keep within that policy. * Editor’s Note: Some of the citations in the version of this memorandum that was transcribed in the Unpublished Opinions of the Assistant Solicitor General were missing, incomplete, or incorrect. We have endeavored to complete and correct these citations with sources that fit the proposition in text and were available at the time this memorandum was written. 49 Supplemental Opinions of the Office of Legal Counsel in Volume 1 The controversy between the exponents of these two views has existed since the beginning of our constitutional government. It reached bitter proportions during Washington’s administration, with Alexander Hamilton championing the first position and James Madison championing the second. The occasion for their debate was the issuance by the President on April 22, 1793 of the proclamation of neutrality with respect to the war between certain nations, including Great Britain on the one part and France on the other. This proclamation was in direct conflict with the provisions of the treaty of alliance then existing between the United States and France, and as there was strong sentiment for France in this country at the time, the proclamation aroused severe criticism. It was charged that the President had failed in his constitutional duty to “take care that the laws be faithfully executed,” in that he not only had failed to carry out the treaty but had committed the country to a policy in direct opposition to its terms. In a series of articles signed “Pacificus,”1 Hamilton came to the support of the President, justifying the action taken upon the ground that the President was the sole representative of the nation in its dealings with other nations, so that in this field no other arm of the government could interfere with or hamper his action. He took the position that in this field the President’s power was supreme and unlimited, pointed out that the Constitution vests in the President the Executive Power, while it vests in the Congress only such legislative power as is therein granted. From this he argued that the executive power is complete except in so far as it is limited by the Constitution, and that the constitutional limitations must be strictly construed. He even inferred that the constitutional grant to the Congress of the power to declare war is not a limitation on the President’s right to also exercise this strictly executive function, but that in this respect, the power granted to the Congress is concurrent with the inherent power of the President as the repository of the Executive Power. Madison, at the request of Jefferson, 2 took issue with Hamilton and in a series of articles signed “Helvidius”3 advanced the second contention set out above. He took the position that the President’s powers, like those of the Congress, were strictly limited to those expressly granted by the Constitution and those necessarily implied therefrom, and that his duty “to take care that the laws be faithfully executed” required him to execute all laws enacted by the Congress including any bearing on the subject of foreign relations. He argued that the Constitution vested in Congress the exclusive right to regulate foreign commerce and to declare war, and that this was in direct conflict with Hamilton’s views. He contended that if the President believed the laws as enacted by the Congress were improper or inade- 1 7 The Works of Alexander Hamilton 76–117 (John C. Hamilton ed., 1851). 7 The Works of Thomas Jefferson 436–37 (Paul Leicester Ford ed., 1904). 3 6 The Writings of James Madison 138–88 (Gaillard Hunt ed., 1906). 2 50 The President’s Power in the Field of Foreign Relations quate his power was exhausted when he had convened the Congress and communicated his views to that body. Madison twitted Hamilton with inconsistency by quoting from an earlier article published in The Federalist, in which Hamilton had said: The history of human conduct does not warrant that exalted opinion of human virtue, which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a president of the United States.4 Hamilton could well have retorted that Madison, in a speech to the House of Representatives in 1789, upon the question of the President’s power to remove from office, had said: The constitution affirms, that the executive power shall be vested in the president. Are there exceptions to this proposition? Yes, there are. The constitution says that, in appointing to office, the senate shall be associated with the president, unless in the case of inferior officers, when the law shall otherwise direct. Have we a right to extend this exception? I believe not. If the constitution has invested all executive power in the president, I venture to assert, that the legislature has no right to diminish or modify his executive authority. 5 It is thus apparent that neither Hamilton nor Madison, the two early exponents of the opposing theories, was at all times consistent in his views on the subject. History discloses that Thomas Jefferson, likewise, was at times inconsistent. While Secretary of State under President Washington he wrote an opinion, at the request of the President, in which he said: The transaction of business with foreign nations is Executive altogether. It belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.6 This statement by Jefferson has been often quoted by exponents of the Hamiltonian theory. It is to be remembered, however, that Madison’s series of articles on the subject were written at Jefferson’s request. Moreover, although Jefferson as 4 Id. at 176 (quoting The Federalist No. 75) (emphasis added). Quoted in Edward S. Corwin, The President’s Control of Foreign Relations 29 (1917). 6 3 The Writings of Thomas Jefferson 16 (Andrew A. Lipscomb & Albert Ellery Bergh eds., lib. ed. 1903). 5 51 Supplemental Opinions of the Office of Legal Counsel in Volume 1 President, without authority from Congress, sent the American fleet into the Mediterranean to wage war against Tripoli, after that fleet had engaged in a naval battle with the Tripolitan fleet he seemingly belied his authority for his action in a message to Congress of December 8, 1801, in which he said: Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact, and had permitted itself to denounce war, on our failure to comply before a given day. The style of the demand admitted but one answer. I sent a small squadron of frigates into the Mediterranean . . . with orders to protect our commerce against the threatened attack. . . . Our commerce in the Mediterranean was blockaded, and that of the Atlantic in peril. . . . One of the Tripolitan cruisers having fallen in with, and engaged the small schooner Enterprise . . . was captured, after a heavy slaughter of her men . . . . Unauthorized by the constitution, without the sanction of Congress, to go beyond the line of defence, the vessel being disabled from committing further hostilities, was liberated with its crew. The legislature will doubtless consider whether, by authorizing measures of offence, also, they will place our force on an equal footing with that of its adversaries. I communicate all material information on this subject, that in the exercise of the important function confided by the constitution to the legislature exclusively, their judgment may form itself on a knowledge and consideration of every circumstance of weight. 7 Again, in the Louisiana Purchase, Jefferson acted first as only the broad theory of Hamilton would permit, and then left his deed to be ratified and paid for by the Congress. Afterwards in a letter to John Breckinridge, dated August 12, 1803, he declared: The Constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union. The executive in seizing the fugitive occurrence which so much advances the good of their country, have done an act beyond the Constitution. The Legislature in casting behind them metaphysical subtleties, and risking themselves like faithful servants, must ratify and pay for it, and throw themselves on their country for doing for them unauthorized, what we know they would have done for themselves had they been in a situation to do it.8 7 8 Id. at 328–29. 10 Writings of Thomas Jefferson, supra note 6, at 411. 52 The President’s Power in the Field of Foreign Relations Hamilton, in an article signed “Lucius Crassus,” howsoever inconsistently with his own theory of the powers of the Chief Executive, caustically commented on both Jefferson’s action and his message in the Tripolitan affair: The doctrine of the Message includes the strange absurdity, that without a declaration of war by Congress, our public force may destroy the life, but may not restrain the liberty, or seize the property of an enemy. This was exemplified in the very instance of the Tripolitan corsair. A number of her crew were slaughtered in the combat, and after she was subdued, she was set free with the remainder. . . . [A] perfect illustration of the unintelligible right, to take the life but not to abridge the liberty, or capture the property of an enemy. . . . The principle avowed in the Message, would authorize our troops to kill those of the invader, if they should come within reach of their bayonets, perhaps to drive them into the sea, and drown them; but not to disable them from doing harm, by the milder process of making them prisoners, and sending them into confinement. Perhaps it may be replied, that the same end would be answered by disarming, and leaving them to starve. The merit of such an argument would be complete by adding, that should they not be famished, before the arrival of their ships with a fresh supply of arms, we might then, if able, disarm them a second time, and send them on board their fleet, to return safely home.9 The controversy has continued. From time to time it has been the occasion of discussion in the public press and of debate in the Congress, few administrations having passed without the question being raised in one form or another. Andrew Jackson maintained that the designation of the President as the depositary of the Executive Power is, in itself, a source of power. Webster denied, without qualification, that the President has any powers except those specified in the Constitution. Chancellor Kent and Justice Story adopted the Hamiltonian view; Alfred Conkling rejected it. The names of prominent men who have kept the discussion alive, some in the support of one and some of the other view, are too numerous to mention here. Many recent articles in the public press and some debates in the last session of the Congress show that the question still is one upon which there is much difference of opinion. So acute did the question become during Lincoln’s administration that the House of Representatives in 1864 adopted a resolution declaring: That Congress has a constitutional right to an authoritative voice in declaring and prescribing the foreign policy of the United States, as 9 7 The Works of Alexander Hamilton 747–48 (John C. Hamilton ed., 1851). 53 Supplemental Opinions of the Office of Legal Counsel in Volume 1 well in the recognition of new Powers as in other matters; and it is the constitutional duty of the President to respect that policy not less in diplomatic negotiations than in the use of the national force when authorized by law; and the propriety of any declaration of foreign policy by Congress is sufficiently proved by the vote which pronounces it . . . .10 Sharp debate was heard on the question in the Senate in 1906. While participated in by many Senators, it was chiefly between Senator Spooner of Wisconsin and Senator Bacon of Georgia11—Senator Spooner supporting the broad theory of the President’s powers and Senator Bacon advocating the opposite view. Many of the arguments advanced are reminiscent of those of Hamilton and Madison. Senator Spooner, in the course of his argument quoted Mr. Justice Story as follows: That a power so extensive in its reach over our foreign relations could not be properly conferred on any other than the executive department will admit of little doubt. That it should be exclusively confined to that department without any participation of the Senate in the functions (that body being conjointly intrusted with the treatymaking power) is not so obvious. Probably the circumstance that in all foreign governments the power was exclusively confined to the executive department, and the utter impracticability of keeping the Senate constantly in session, and the suddenness of the emergencies which might require the action of the Government, conduced to the establishment of the authority in its present form. It is not, indeed, a power likely to be abused, though it is pregnant with consequences often involving the question of peace or war. 12 Senator Spooner also quoted from Professor Pomeroy as follows: I repeat that the Executive Department, by means of this branch of its power over foreign relations, holds in its keeping the safety, welfare, and even permanence of our internal and domestic institutions. And in wielding this power it is untrammeled by any other department of the Government; no other influence than a moral one can 10 Cong. Globe, 38th Cong., 2d Sess. 65–66 (Dec. 19, 1864). 40 Cong. Rec. 1417–31 (Jan. 23, 1906); 40 Cong. Rec. 2125–48 (Feb. 6, 1906). 12 40 Cong. Rec. 1420 (1906) (quoting 2 Joseph Story, Commentaries on the Constitution of the United States § 1567 (5th ed. 1891)). 11 54 The President’s Power in the Field of Foreign Relations control or curb it; its acts are political, and its responsibility is only political.13 Senator Bacon, in support of the other view, said in part: The terms upon which foreign ships shall be allowed to enter our ports or do business with us is an important one in our foreign relations, but the power to fix and determine them is altogether with Congress. .... . . . It is entirely within the competency of Congress to pass a law that no citizen of a given country shall come to this country, that no goods shall be received from it, that no merchandise shall go from this country to it, that no letters shall come from it, that there shall be no intercommunication of any kind whatever. Who doubts the power of Congress to do so? In other words, it is within the power of Congress to absolutely sunder the relations between this country and any given foreign country. When that is said the whole thing is said; when that is said the whole argument is exhausted as to where rests the supreme power in foreign affairs, because the whole must include every part. If it is within the power of Congress to absolutely sunder all relations of every kind, commercial, social, political, diplomatic, and of every other nature, it is certainly within the power of Congress to regulate and control every question subsidiary to that and included within it. Congress and not the President is supreme under the Constitution in the control of our foreign affairs. .... Compared to this great array of sovereign powers granted to Congress, those conferred upon the President present a most striking contrast. He is clothed with the great power and responsibility of the execution of the laws, but beyond this the only prerogative of sovereignty with which he is exclusively invested is the pardoning power, and even that is denied to him in cases of impeachment by the House and conviction by the Senate.14 13 Id. (quoting John Norton Pomeroy, An Introduction to the Constitutional Law of the United States § 672 (3d ed. 1875)). 14 40 Cong. Rec. 2132, 2134. 55 Supplemental Opinions of the Office of Legal Counsel in Volume 1 The broad powers which Hamilton declared to be vested in the Chief Executive have been exercised to a greater or lesser degree by many of the presidents. Washington’s exercise of power in derogation of the treaty with France and Jefferson’s actions in connection with the war with Tripoli and with the Louisiana Purchase have been noted heretofore. Other instances are the invasions of Mexico under Presidents Polk and Wilson; President McKinley’s agreement with England, France, Italy, and Germany to suppress the Boxer Revolution and the sending of a joint expeditionary force into the heart of China; and President Theodore Roosevelt’s action in connection with the Venezuela affair in 1901, and his armed assistance to Panama in its revolt against Columbia for the purpose of acquiring the Panama Canal Zone which he had been unable to acquire from Columbia. In all of these situations and in others of like character, the action taken was without authority from Congress, and that of Theodore Roosevelt in Panama was in direct conflict with the treaty with Columbia; yet in each instance the action met with the approval of the people and added to the prestige of the President. In other instances Presidents have attempted to exercise similar powers without success. Notable examples are President Tyler’s attempt to annex Texas in 1844; President Grant’s attempt to annex Santo Domingo; and President Wilson’s effort to make the United States a party to the League of Nations. On these and other occasions, the attempted exercise of broad powers was not approved by the people and the Presidents therefore failed of their purpose. An outstanding example of the exercise of executive power in the field of foreign relations is to be found in the Monroe Doctrine. First promulgated by President Monroe in 1823, that Doctrine has been consistently adhered to and has been many times restated and reasserted. As sometimes interpreted, it is broad enough to constitute in advance a declaration of war against any European or Asiatic nation that attempts to interfere in the political affairs of any independent government on either of the American Continents. A few writers have attempted to justify it under the President’s statutory authority to repel invasion or threatened invasion, but most have treated it as a purely executive declaration of the foreign policy of the United States. This Doctrine, unsupported for seventy-five years by any act of the Congress, has come to be almost, if not entirely, as much a part of our fundamental law as the Constitution itself. Daniel Webster said of it: I look upon it as a part of its treasures of reputation; and, for one, I intend to guard it. . . . I will neither help to erase it nor tear it out; nor shall it be, by any act of mine, blurred or blotted. It did honor to the sagacity of the government, and will not diminish that honor.15 President Cleveland referring to it said: 15 Quoted in Elihu Root, The Real Monroe Doctrine, 199 N. Am. Rev. 841, 843 (1914). 56 The President’s Power in the Field of Foreign Relations It may not have been admitted in so many words to the Code of International Law, but . . . it has its place in the Code of International Law as certainly and as securely as if it were specifically mentioned.16 And in 1920, in its “resolution of ratification” of the Treaty of Versailles, the Senate incorporated therein, among others, the following reservation: The United States will not submit to arbitration or to inquiry by the assembly or by the council of the League of Nations, provided for in said treaty of peace, any questions which in the judgment of the United States depend upon or relate to its long-established policy, commonly known as the Monroe Doctrine; said doctrine is to be interpreted by the United States alone and is hereby declared to be wholly outside the jurisdiction of said League of Nations and entirely unaffected by any provision contained in the said treaty of peace with Germany.17 While, as has been indicated, many Presidents have asserted the right to exercise the broad powers outlined by Hamilton, other Presidents have expressly disavowed this right. President Buchanan’s special message to the Congress, dated February 18, 1859, in connection with Central American affairs is an example of such a disavowal.18 That message called attention to the lawless conditions existing in Central America, to the harsh and unlawful treatment of citizens of the United States and to the arbitrary and unwarranted seizure and confiscation of United States vessels and cargoes in that section of the world. It then declared that the President, unlike the executives of foreign nations, was wholly without authority in his own right to take any action. It disavowed any right in the President, without authority from the Congress, to exert any force to correct conditions or to redress the many grievous wrongs that had been, and were continuing to be, perpetrated against United States citizens and their property, and expressly requested the Congress to grant the President that right.19 What a contrast between this action and the action of other Presidents under similar circumstances! The divergent views of different Presidents on the extent of the executive power are further illustrated by a comparison of statements made by Presidents 16 Quoted in Theodore S. Woolsey, Monroe Doctrine Fundamentals, 199 N. Am. Rev. 833, 834–35 (1914). 17 59 Cong. Rec. 4577. 18 Special Message of the President on the Protection of the Transit Routes Across the Isthmus, in The Messages of President Buchanan 200 (J. Buchanan Henry comp., 1888). 19 Id. at 201–02. 57 Supplemental Opinions of the Office of Legal Counsel in Volume 1 Theodore Roosevelt and William Howard Taft. Referring to his action in connection with the acquisition of the Panama Canal Zone, Mr. Roosevelt said: If I had followed traditional, conservative methods, I would have submitted a dignified state paper of probably two hundred pages to Congress and the debate on it would have been going on yet; but I took the Canal Zone and let Congress debate.20 Speaking in his autobiography of his action in 1905 in putting custom houses in Santo Domingo under American control, Mr. Roosevelt said: The Constitution did not explicitly give me power to bring about the necessary agreement with Santo Domingo. But the Constitution did not forbid my doing what I did. I put the agreement into effect, and I continued its execution for two years before the senate acted; and I would have continued it until the end of my term, if necessary, without any action by Congress. But it was far preferable that there should be action by Congress, so that we might be proceeding under a treaty which was the law of the land and not merely by a direction of the Chief Executive which would lapse when that particular executive left office. I therefore did my best to get the Senate to ratify what I had done.21 Mr. Roosevelt further said in his autobiography: The most important factor in getting the right spirit in my Administration, next to the insistence upon courage, honesty, and a genuine democracy of desire to serve the plain people, was my insistence upon the theory that the executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by the Congress under its Constitutional powers. My view was that every executive officer, and above all every executive officer in high position, was a steward of the people bound actively and affirmatively to do all he could for the people, and not to content himself with the negative merit of keeping his talents undamaged in a napkin. I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Con20 Quoted in Note, Constitutional Law—Delegation of Powers—External Sovereignty, 11 Temple L.Q. 418, 421 n.27 (1937). 21 Theodore Roosevelt, An Autobiography 551 (1913). 58 The President’s Power in the Field of Foreign Relations stitution or by the laws. Under this interpretation of executive power I did and caused to be done many things not previously done by the President and the heads of the departments. I did not usurp power, but I did greatly broaden the use of executive power. In other words, I acted for the public welfare, I acted for the common well-being of all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition. I did not care a rap for the mere form and show of power; I cared immensely for the use that could be made of the substance. 22 Mr. Taft, on the other hand, in his book Chief Magistrate, published after his retirement from office, said: The true view of the Executive functions is, as I conceive it, that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise. Such specific grant must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest, and there is nothing in the Neagle case and its definition of a law of the United States, or in other precedents, warranting such an inference. The grants of Executive power are necessarily in general terms in order not to embarrass the Executive within the field of action plainly marked for him, but his jurisdiction must be justified and vindicated by affirmative constitutional or statutory provision, or it does not exist. 23 In the same book Mr. Taft, after quoting from President Roosevelt’s autobiography the passage last quoted above, makes this statement: My judgment is that the view of . . . Mr. Roosevelt, ascribing an undefined residuum of power to the President[,] is an unsafe doctrine and that it might lead under emergencies to results of an arbitrary character . . . .24 For many years the Supreme Court did not definitely take either side in the controversy. It did hold that in matters of foreign relations the judiciary had no authority, such matters being political in their nature and committed solely to the charge of the political authorities of the government; but it did not distinguish 22 Id. at 388–89. William Howard Taft, Our Chief Magistrate and His Powers 139–40 (1916). 24 Id. at 144. 23 59 Supplemental Opinions of the Office of Legal Counsel in Volume 1 between the Congress and the executive, nor designate which, if either, of these two political branches of the government had the higher authority. Commentators on the subject cite many decisions of the Supreme Court as tending to support the one theory or the other. However, most decisions of that Court relating to matters in the field of foreign affairs, when carefully examined, involve both congressional and presidential action, and, therefore, involve some form of purported congressional delegation of power. Such decisions are not pertinent here, since the question, so far from being one of congressional delegation of power, is one of what powers the President may exercise without authority from Congress. Of the decisions usually cited those in Kansas v. Colorado25 and In re Neagle26 have heretofore been most often relied upon by the exponents of the first mentioned theory, and that in Little v. Barreme27 by the exponents of the second theory. These decisions, however, fall far short of being decisive of the question. The decision in Kansas v. Colorado is much stressed by advocates of the Hamiltonian theory. That decision relates only to the powers of the judiciary, but in discussing and defining those powers the Court adopts much of the reasoning advanced by Hamilton in connection with the executive power, especially that based on the difference in the language of the several constitutional grants of powers. The decision in the Neagle case is also urged in support of that theory. It holds that the President’s duty to “take care that the laws be faithfully executed” is not “limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms,” but that it includes the “rights, duties, and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the Government under the Constitution[.]”28 However, this part of the decision is dictum, since the court justified the action taken by the President in that case under an express congressional grant of authority. The decision in Little v. Barreme, on the other hand, lends some comfort to the advocates of the Madisonian theory. Apparently it holds that in the field of foreign relations if the Congress has spoken, the President is controlled by the act of that body and by the policy prescribed thereby; but it seems to intimate, in a dictum, that if the Congress has not spoken the powers of the President as the Chief Executive are sufficient to enable him to meet any situation that may arise.29 25 206 U.S. 46 (1907). 135 U.S. 1 (1890). 27 6 U.S. (2 Cranch) 170 (1804). 28 135 U.S. at 64. 29 6 U.S. at 177–78. 26 60 The President’s Power in the Field of Foreign Relations The most recent and far reaching decision of the Supreme Court on the question is that in United States v. Curtiss-Wright Export Corp.30 In that decision, rendered December 21, 1936, the Court held: The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.31 It further held that the government has powers of sovereignty not granted by the Constitution—powers which prior to the Declaration of Independence were in the English crown; that these powers were wrested from the crown by the colonies collectively and not individually; and that when so wrested from the crown they vested, not in the individual colonies, but in the colonies as a unit. The Court declared that among such powers was the power to deal with foreign nations. The Court further held in the Curtiss-Wright case that in foreign affairs “the President alone has the power to speak or listen as a representative of the nation,” being the “‘sole organ of the nation in its external relations’” and responsible only to the Constitution for his conduct.32 It then said: It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the maintenance of our international relations, embarrassment—perhaps serious embarrassment—is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.33 30 299 U.S. 304 (1936). Id. at 315–16. 32 Id. at 319 (quoting 10 Annals of Cong. 613 (1800) (remarks of John Marshall)). 33 Id. at 319–20. 31 61 Supplemental Opinions of the Office of Legal Counsel in Volume 1 It must be remembered, however, that the Curtiss-Wright case involved, not the question of the President’s power to act without congressional authority, but the question of his right to act under and in accord with an act of Congress. In that case the constitutionality of the act under which the President had proceeded was assailed on the ground that it delegated legislative powers to the President. Much of the decision is dicta, and the ratio decidendi is contained in the following language: When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the President’s action—or, indeed, whether he shall act at all—may well depend, among other things, upon the nature of the confidential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreign relations. This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U.S. 299, 311 [(1915)], “As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrassing such powers.” (Italics supplied.)34 It is apparent, therefore, that the case leaves much of the controverted question still unsettled. It places internal and external affairs in separate categories, and holds that the strict rule applied by the court to congressional delegations of power to the President in connection with internal affairs does not apply to such delegations of power in connection with external affairs. It intimates that the President might act in external affairs without congressional authority, but it leaves undecided the question whether the Congress can enact a statute in derogation of the President’s power in this field—for example, a mandatory embargo or neutrality act—which question involves the further question whether the President may, in dealing with foreign nations, entirely disregard a statute which the Congress has enacted, and which prescribes a policy to be followed. On this point the decision of the Supreme Court in Little v. Barreme is of interest, and perhaps of importance. As before stated, it intimates that when the Congress has not spoken the President’s powers over foreign affairs are unlimited, but apparently holds that when the Congress has spoken, his powers are limited to 34 Id. at 321–22. 62 The President’s Power in the Field of Foreign Relations the policy declared by the act of the Congress. Whether the Court would today hold this to be a correct statement of the law, or even the correct interpretation of its former decision, is a matter of conjecture. In view of what has been said, it is apparent that from the beginning the question of the extent of the President’s powers has been a controversial one, and that the answer to the question is to be found in the statement of Chief Justice Marshall in Marbury v. Madison: [T]he president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.35 In any government, the exercise of political powers is dependent upon the will of the sovereign. In the United States the people constitute the sovereign, and therefore the successful exercise of any political power by the executive is dependent upon public opinion. For this reason it is doubtful if the question of the extent of the President’s powers ever will be definitely determined. Public opinion is changeable; it may favor one thing today and another tomorrow. Therefore, the power which the public will permit the executive to exercise will vary from time to time according to the circumstances involved. Like Hamilton and Madison, the average man is never consistently either a strict or a liberal constructionist. He views the Constitution and the government merely as instruments through which he may on the one hand secure the performance of those acts of which he approves and on the other prevent the performance of those acts of which he does not approve. Therefore, if the act sought to be done is one of which the general public approves it will accept any construction, however liberal, which permits the act to be done; but if the act is one of which it does not approve, it will accept any construction, however restricted, which prevents the act from being done. This was strikingly illustrated during the Wilson administration. When President Wilson, without any authority from the Congress, seized Vera Cruz, and when he later sent an expeditionary force into Mexico, despite criticism in many quarters, the public generally approved those actions. But when later he took the leadership in establishing the League of Nations and in his dealings with European countries practically committed the United States to participation therein, public approval perceptibly waned and the Senate rejected the treaty. As a result thereof the President’s prestige was greatly impaired, with consequences injurious to his political influence and to his health. It follows that a President today, in the performance of an act of which the general public approves, may assume and exercise a power with the approbation 35 5 U.S. (1 Cranch) 137, 165–66 (1803). 63 Supplemental Opinions of the Office of Legal Counsel in Volume 1 of the public; but tomorrow, in the performance of some act of which the public does not approve, he will exercise the same or a like power at his peril. The question must be considered realistically. It is essentially practical and does not admit of a legalistic treatment that fails to take into account human nature in the individual and in the mass. If it be shocking to legal concept to conclude that a President at one time under the Constitution has the power to do an act in respect of foreign relations, and that the same or another President under the same Constitution has not the power to do such an act at another time, the trouble is not with the conclusion but with the concept. History corroborates the conclusion, while at the same time overturning any legal theory on the subject that does not accord with experience. Even when Conkling was bitterly attacking President Johnson for assuming unwarranted executive power he said: It is not like the assumption of a questionable power from good motives and for beneficent ends; . . . where the acquiescence of the nation may rightly be held a practical sanction and affirmation of the power.36 Presidents will continue in the future to draw their executive power respecting foreign relations from the Constitution, as they have done in the past, and to exercise it. When the people approve the exercise, the existence of the power under the Constitution will be proved; when they disapprove the exercise, the existence of the power under the Constitution will be disproved. In this sphere, indeed, “The event is a great teacher.” The theory of Hamilton and the theory of Madison have been debated continuously—and the argument will persist. The two views have not been and cannot be reconciled in the realm of logic; in the practical world they converge. In the field of foreign relations, the Chief Executive moves in a zone of twilight* where he may proceed with assurance of his powers under the Constitution only when the people follow and approve. As said by Woodrow Wilson: 36 Alfred Conkling, The Powers of the Executive Department of the Government of the United States 134–35 (1866) (emphasis supplied). * Editor’s Note: Fifteen years later, Justice Robert Jackson used the same phrase—“a zone of twilight”—in his famous Steel Seizure Case concurrence, albeit in more specific reference to cases in which Congress has not spoken to a matter of foreign affairs but the President nevertheless determines to take action. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (“When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.”). In 1937, when Assistant Solicitor General Bell wrote this opinion, Jackson was the Assistant Attorney General for the Antitrust Division. In March 1938, Jackson was appointed Solicitor General; and in January 1940 he was appointed Attorney General of the United States. 64 The President’s Power in the Field of Foreign Relations If he [the President] rightly interpret the national thought and boldly insist upon it, he is irresistible.37 II. The President’s Power to Repel Invasion Better to be awakened by the alarm-bell than to perish in the flames.—Burke Closely related to the subject discussed under Part I is the power of the President to repel invasion. That power is unquestioned. The exponents of the Hamiltonian theory contend that the power, without statutory authority, would be inherent in the President as the Chief Executive; but it is not necessary to rely on this view, since the statutes expressly provide that “whenever the United States shall be invaded or in imminent danger of invasion by any foreign nation,” the President may use the military and naval forces to repel such invasion. In the Prize Cases, the Supreme Court said: But by the Acts of Congress . . . he is authorized to call[] out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States. If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority.38 In Martin v. Mott, the Supreme Court took a somewhat broader view of this power of the President. In that case Justice Story, speaking for the Court, said: For the more clear and exact consideration of the subject, it may be necessary to refer to the constitution of the United States, and some of the provisions of the act of 1795. The constitution declares, that congress shall have power “to provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions”: and also “to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States.” In pursuance of this authority, the act of 1795 has provided, “that whenever the United States shall be invaded, or be in imminent danger of invasion from 37 38 Woodrow Wilson, Constitutional Government in the United States 68 (1908). 67 U.S. (2 Black) 635, 668 (1862). 65 Supplemental Opinions of the Office of Legal Counsel in Volume 1 any foreign nation or Indian tribe, it shall be lawful for the president of the United States to call forth such number of the militia of the state or states most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his order for that purpose to such officer or officers of the militia as he may think proper.” And like provisions are made for the other cases stated in the constitution. It has not been denied here, that the act of 1795 is within the constitutional authority of congress, or that congress may not lawfully provide for cases of imminent danger of invasion, as well as for cases where an invasion has actually taken place. In our opinion, there is no ground for a doubt on this point, even if it had been relied on, for the power to provide for repelling invasions includes the power to provide against the attempt and danger of invasion, as the necessary and proper means to effectuate the object. One of the best means to repel invasions is to provide the requisite force for action, before the invader himself has reached the soil. The power thus confided by congress to the president, is, doubtless, of a very high and delicate nature. A free people are naturally jealous of the exercise of military power; and the power to call the militia into actual service, is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a correspondent responsibility. It is, in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion. If it be a limited power, the question arises, by whom is the exigency to be judged of and decided? Is the president the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the president are addressed, may decide for himself, and equally open to be contested by every militiaman who shall refuse to obey the orders of the president? We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the president, and that his decision is conclusive upon all other persons. We think that this construction necessarily results from the nature of the power itself, and from the manifest object contemplated by the act of congress. The power itself is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the Union. . . . If we look at the language of the act of 1795, every conclusion drawn from the nature of the power itself, is strongly fortified. The words are, “whenever the United States shall be invaded, or be in 66 The President’s Power in the Field of Foreign Relations imminent danger of invasion, &c., it shall be lawful for the president, &c., to call forth such number of the militia, &c., as he may judge necessary to repel such invasion.” The power itself is confided to the executive of the Union, to him who is, by the constitution, “the commander-in-chief of the militia, when called into the actual service of the United States,” whose duty it is to “take care that the laws be faithfully executed,” and whose responsibility for an honest discharge of his official obligations is secured by the highest sanctions. He is necessarily constituted the judge of the existence of the exigency, in the first instance, and is bound to act according to his belief of the facts.39 The use in the statutes and decisions of the term “imminent danger of invasion” raises another question. Assuming that the President’s power to use force against a foreign nation is limited to his statutory power to repel an “invasion” or an “imminent danger of invasion,” what constitutes an “imminent danger of invasion”? Under what circumstances may the President act, and how far may he go, under his authority to meet an “imminent danger of invasion”? As mentioned in Part I of this memorandum, the Monroe Doctrine has sometimes been justified under the powers of the President to repel threatened invasions; but if this power be the sole justification for the Monroe Doctrine, how far may it be extended under present conditions? If at the time the Monroe Doctrine was announced—the day of coach by land and sail by sea—the interference of a foreign nation in South American affairs constituted a threat of invasion of the United States, what is necessary to constitute such a threat today in the world of the airplane and the submarine? In the light of present means of rapid transportation and destructive warfare, how far is the President justified in finding in military preparations and activities by foreign nations threat of invasion? Do the military activities and demonstrations of Japan, for example, constitute a threat of invasion of the Philippine Islands or of Hawaii? Could there be sufficient military developments and demonstrations on islands in the Pacific or Atlantic or on the European or the Asiatic Continent to constitute such a threat? Moreover, what does the term “invasion” embrace? Is it limited to territorial invasion, or does it comprehend, also, invasion of the rights of this country as a sovereign nation, wherever committed? Again, attention is called to President Jefferson’s message to Congress in connection with the Tripolitan affair. Jefferson justified the action taken on the ground that he had sent the fleet to the Mediterranean “with orders to protect our commerce against the threatened attack.”40 Since, in the same document, he disclaimed 39 40 25 U.S. (12 Wheat.) 19, 27–30, 31 (1827). 3 Writings of Thomas Jefferson, supra note 6, at 328. 67 Supplemental Opinions of the Office of Legal Counsel in Volume 1 any authority to act without authority from the Congress, perhaps he deemed his statutory authority to repel invasion or threatened invasion as sufficient authority. The real answer here, also, is that the determination of when there is invasion or imminent danger of invasion and power to deal with the subject are political questions which can be resolved only through the exercise of the President’s judgment supported by the will of the people. Woodrow Wilson said: [The President] may be both the leader of his party and the leader of his nation, or he may be one or the other. If he lead the nation, his party can hardly resist him. His office is anything he has the sagacity and force to make it.41 And as stated by Justice Story in Martin v. Mott: It is no answer, that such a power [the power to provide against the danger of invasion] may be abused, for there is no power which is not susceptible of abuse. The remedy for this, as well as for all other official misconduct, if it should occur, is to be found in the constitution itself. In a free government, the danger must be remote, since, in addition to the high qualities which the executive must be presumed to possess, of public virtue, and honest devotion to the public interests, the frequency of elections, and the watchfulness of the representatives of the nation, carry with them all the checks which can be useful to guard against usurpation or wanton tyranny. 42 III. The President’s Position in the Far Eastern and Spanish Affairs as Affected by the Neutrality Act of 1937 The transaction of business with foreign nations is Executive altogether.—Jefferson If the Hamiltonian theory of the President’s powers be accepted in its broadest sense, the Neutrality Act of 1937 may be treated by him as advisory only, to be put into effect or not at a particular time as he may determine to be for the best interests of the country. If the Madisonian view be adopted, however, even with material qualifications, the Neutrality Act binds the President and makes it his constitutional duty to “take care” that it is enforced. 41 42 Constitutional Government, supra note 37, at 69. 25 U.S. at 32. 68 The President’s Power in the Field of Foreign Relations Since considerable misapprehension has appeared in the public press with respect to the effect of the Neutrality Act of 193743 upon prior existing treaties entered into between this country and foreign nations, it is to be observed at the outset that it is settled by the decisions of the Supreme Court that under the Constitution both treaties and acts of Congress are the supreme law of the land; that neither is superior to the other; and that in case of conflict, that which is later in date controls.44 It follows that to the extent that the Neutrality Act of 1937 conflicts with any prior treaty, the treaty is abrogated by the Act. The legislative history of the Act is in accord with this doctrine. During the session at which the Joint Resolution of February 29, 193645 was adopted, the House Committee on Foreign Affairs had reported a resolution (H.J. Res. 422) containing the following section: SEC. 16. If the President shall find that any of the provisions of this Act, if applied, would contravene treaty provisions in force between the United States and any foreign country before such provisions shall become applicable as to such foreign country or countries, he shall enter into negotiations with the government of such country for the purpose of effecting such modification of the treaty provisions as may be necessary, and if he shall be unable to bring about the necessary modifications, he may in his discretion, but before such provisions shall become applicable as to such foreign country or countries he shall give notice of termination and terminate the treaty in accordance with the terms thereof. In connection therewith the Committee’s report stated: Section 16. This section has created quite an argument in your committee, on the question as to whether or not any of the provisions of this bill would violate any treaties between the United States and any foreign countries. While this section provides that if the President shall find that any of the provisions of this act, if applied, would contravene treaty provisions in force between the United States and any foreign country, he may enter into negotiations with the government of such country for the purpose of effecting such modification of the treaty provisions which will be necessary, and if he shall be unable to bring about the necessary modifications, he may, in his discretion, give notice of the termination of the treaty. Many of our 43 50 Stat. 121. See Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox Ltd., 291 U.S. 138, 160 (1934); Cook v. United States, 288 U.S. 102, 118–19 (1933); Ex Parte Webb, 225 U.S. 663, 683 (1912); Head Money Cases, 112 U.S. 580, 597–99 (1884). 45 49 Stat. 1152. 44 69 Supplemental Opinions of the Office of Legal Counsel in Volume 1 treaties with European countries have a provision of 1 year’s notice of termination. The committee is very anxious to see that no treaty rights are violated . . . .46 The Committee later abandoned this more liberal resolution and reported a substitute resolution, which became the Joint Resolution of February 29, 1936. The Committee’s report47 made no explanation of the change of position but Chairman McReynolds explained on the floor of the House that a compromise had been necessary.48 The Committee was accused of “retreat and surrender,” and “abandonment of everything that committee stood for.”49 During the consideration of the substitute resolution in the House and in the Senate there was no mention of the question of the effect of the resolution on treaties. The Joint Resolution of February 29, 1936 was substantially reenacted in section 1 of the Neutrality Act of 1937. A. The Spanish Situation Section 1(c) of the Neutrality Act of 1937 provides as follows: Whenever the President shall find that a state of civil strife exists in a foreign state and that such civil strife is of a magnitude or is being conducted under such conditions that the export of arms, ammunition, or implements of war from the United States to such foreign state would threaten or endanger the peace of the United States, the President shall proclaim such fact, and it shall thereafter be unlawful to export, or attempt to export, or cause to be exported, arms, ammunition, or implements of war from any place in the United States to such foreign state, or to any neutral state for transshipment to, or for the use of, such foreign state.50 Acting under that provision, the President on May 5, 1937 found and proclaimed that a state of civil strife unhappily exists in Spain and that such civil strife is of a magnitude and is being conducted under such conditions that the export of arms, ammunition, or implements of war from the 46 H.R. Rep. No. 74-1928, at 8 (1936). H.R. Rep. No. 74-2001 (1936). 48 80 Cong. Rec. 2240 (1936). 49 Id. at 2241. 50 50 Stat. at 121–22. 47 70 The President’s Power in the Field of Foreign Relations United States to Spain would threaten and endanger the peace of the United States . . . .51 It is thus obvious that the President, with ample justification for his finding, followed, with respect to the civil strife existing in Spain, precisely the course which he was authorized by the Congress to take. Under the facts any criticism of the President’s action in this situation cannot be directed fairly to any unwarranted assumption of power. Nor can fault be found properly on the ground that circumstances in Spain did not justify his finding— everyone knows that they did, and in any event, the Congress left it to the President’s sole discretion to judge whether the facts in a given situation justify such a finding and proclamation. For the reason stated above, any earlier treaty with Spain inconsistent with the Neutrality Act of 1937 was abrogated by that Act and the President’s action under it, to the extent of the inconsistency. B. The Far Eastern Situation Section 1(a) of the Neutrality Act of 1937 provides as follows: Whenever the President shall find that there exists a state of war between, or among, two or more foreign states, the President shall proclaim such fact, and it shall thereafter be unlawful to export, or attempt to export, or cause to be exported, arms, ammunition, or implements of war from any place in the United States to any belligerent state named in such proclamation, or to any neutral state for transshipment to, or for the use of, any such belligerent state.52 The President has not yet found under this section “that there exists a state of war between” China and Japan. Irrespective of whether the provisions of section 1 are mandatory, requiring the President to find the existence of a state of war when in fact it does exist, or discretionary, leaving it to him, when there exists a state of war, to determine whether and when he shall make a finding of its existence so as to make the Neutrality Act applicable to it, his position in not having made a finding that a state of war exists between China and Japan is fully justified, notwithstanding that to many people the existence of war in China is an accepted fact. Japan has not formally declared war on China, nor has China formally declared war on Japan. So far has each refrained from that course, that diplomatic relations between the two countries have not even been severed but continue as in time of 51 52 2 Fed. Reg. 776, 777. 50 Stat. at 121. 71 Supplemental Opinions of the Office of Legal Counsel in Volume 1 peace, each maintaining in the country of the other an ambassador and consuls, thus indicating that neither conceives that war exists between them. While diplomatic relations are often severed before war begins, the existence of diplomatic relations after the commencement of war would be novel. Moreover, no neutral nation has formally recognized the existence of a state of war as between China and Japan. Other circumstances inconsistent with a finding that there exists a state of war between these two nations are that the Japanese blockade is not that of a belligerent, being directed only against Chinese vessels, and that the United States and other countries continue to harbor their warships in Chinese waters, and to rescue and repatriate their nationals, as they could not do in case of war between the two nations. Should the President find that there exists a state of war between China and Japan, this nation would become the first to characterize the conflict between them as war. Such a finding on the part of the President would have the effect of causing the Neutrality Act to abrogate the commerce features of the Nine Power Treaty—a result not lightly to be contemplated—while so long as he refrains, the Act and the Treaty are not in conflict and both are fully effective. Such a course would be tantamount to a declaration of war by this country between those two nations, notwithstanding that neither has formally declared war on the other and might well cause one or both to do so, to say nothing of causing repercussions among the other countries of the world, and such complications as would greatly lessen the possibilities of a peaceful solution of the difficulties involved— particularly through the influence of the United States. While the Neutrality Act does not disclose whether the President shall find that there exists a state of war only when there has been a formal declaration as between two nations, or also when a de facto state of war exists, the existing situation in the Far East is such that on either construction the course so far pursued by the President is sound and within his authority under the Act for the reasons heretofore indicated. As to whether, when there exists a state of war, the Neutrality Act is mandatory upon the President to find its existence, the position may be taken that the act by its terms leaves to the President the discretion to find or not to find the existence of a state of war—or at least the discretion as to when to make a finding. This, however, would be a strained construction and not borne out by the legislative history of the Act. The President at the time he approved the Neutrality Act of 1936 indicated by his statement that the provisions of section 1 were too inflexible, saying: The latter section terminates at the end of February 1936. This section requires further and more complete consideration between now and that date. Here again the objective is wholly good. It is the policy of this Government to avoid being drawn into wars between other nations, but it is a fact that no Congress and no Executive can foresee all possible future situations. History is filled with unfore- 72 The President’s Power in the Field of Foreign Relations seeable situations that call for some flexibility of action. It is conceivable that situations may arise in which the wholly inflexible provisions of Section 1 of this Act might have exactly the opposite effect from that which was intended. In other words, the inflexible provisions might drag us into war instead of keeping us out. The policy of the Government is definitely committed to the maintenance of peace and the avoidance of any entanglements which would lead us into conflict.53 Upon this phase of the matter Congressman Johnson of the House Committee on Foreign Affairs, in explanation of the Joint Resolution of February 29, 1936, made the following explanation: Someone expressed opposition to the bill because it was not mandatory and delegated authority to the President. Five of its prohibitions are mandatory and the President has no discretion whatever, and only the two relating to the use of American ports by submarines and the travel of Americans on belligerent vessels are left to the President’s discretion, and even in these the delegation of discretion is so circumscribed that it is practically mandatory, since he is required to act if either of a number of contingencies therein mentioned should arise.54 The mandatory provisions of that Resolution were reenacted as section 1 of the Joint Resolution of May 1, 1937,55 without pertinent change of language. It seems clear, therefore, from the language of the Act and from its legislative history, that as to section 1(a) the Congress did not intend to leave anything to the discretion of the President, and did intend that the provisions of that section should be mandatory on him when it came to his knowledge that a state of war existed. The express granting of discretion in connection with section 1(c) emphasizes this construction. Since the Act does not operate on a given situation until the President makes a finding, it always lies within his power, when there exists a state of war, so to find or not to find. He could not be fairly criticized, certainly, for not making such a finding until after the lapse of a reasonable time, under the circumstances, after the commencement of a state of war. In any view, he would be entitled to such a reasonable time to investigate, consider, come to his conclusion, and act. Should he delay, however, beyond such a reasonable time, he could justify his negative action only if the delay should meet with popular approval. Should there be, 53 Quoted in Allen W. Dulles & Hamilton Fish Armstrong, Can We Be Neutral? 150 (2d ed. 1936). 80 Cong. Rec. 2245. 55 50 Stat. 121. 54 73 Supplemental Opinions of the Office of Legal Counsel in Volume 1 instead, popular disapproval, his position (even if placed on the Hamiltonian view) would be difficult to defend. These considerations would become pressing in the event that Japan should formally declare war on China. Another position which has been suggested is that the Neutrality Act of 1937 contemplates a finding that there exists a state of war only when there has been a formal declaration of war, and not in case of any de facto war. It is true that the practice of the Roman Empire was not to recognize the existence of a state of war until war had been formally declared; but that procedure fell into early disuse, and for many centuries it was the general custom not to formally declare war. The Supreme Court has declared that a state of war may exist without a formal declaration of war.56 The Second Hague Conference of 1907, in its Convention III, contains provisions looking toward reestablishment of the Roman practice: Article 1 The contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war. Article 2 The existence of a state of war must be notified to the neutral Powers without delay, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph.57 But the effort was rendered largely nugatory by the last clause of Article 2, which provides: Neutral Powers, nevertheless, cannot rely on the absence of notification if it is clearly established that they were in fact aware of the existence of a state of war.58 The modern tendency seems to be for nations not to make formal declarations of their wars, and the suggested construction of the Act as contemplating a finding 56 The Prize Cases, 67 U.S. (2 Black) 635, 668 (1862); Bas v. Tingy (The Eliza), 4 U.S. (4 Dall.) 37, 40–41 (1800) (opinion of Washington, J.); Miller v. United States, 78 U.S. (11 Wall.) 268, 306 (1870); The Pedro, 175 U.S. 354, 363 (1899). 57 Hague Convention (III) Relative to the Opening of Hostilities, Oct. 18, 1907, 36 Stat. 2259, 2271. 58 Id. 74 The President’s Power in the Field of Foreign Relations by the President only in case of formally declared war is highly technical and unconvincing. A practical course which the President may see fit to follow is that set by President Wilson in connection with the arming of American merchant vessels just prior to our entrance into the World War. On February 25, 1917, he went before the Congress and asked its approval of his decision to authorize merchant ships to carry defensive arms and to use them in the protection of lives and property in their legitimate and peaceful pursuits at sea. President Wilson said in part: No doubt I already possess that authority without special warrant of law, by the plain implication of my constitutional duties and powers; but I prefer in the present circumstances not to act upon general implication. I wish to feel that the authority and the power of the Congress are behind me in whatever it may become necessary for me to do. We are jointly the servants of the people and must act together and in their spirit, so far as we can divine and interpret it.59 So here, the President might submit the instant situation to the Congress in a message sufficiently setting forth the facts to show the serious complications involved and the undesirable results likely to flow from precipitate steps, together with an outline of such plan of action as he may wish to propose, requesting the Congress to cooperate with the Executive in dealing with the crisis. Such a course would tend to abate any criticism of the President because he has not or does not find under section 1(a) of the Neutrality Act that there exists a state of war between China and Japan, and does not say why he fails to do so. It may be peculiarly adapted to the situation which will exist should Japan formally declare war on China. Should the policy outlined by the President in such a message meet with popular approval its purposes would be accomplished. The law is the general will . . . .—Volney GOLDEN W. BELL Assistant Solicitor General 59 Quoted in Corwin, supra note 5, at 152. 75 Supplemental Opinions of the Office of Legal Counsel in Volume 1 APPENDIX Authorities Consulted American Historical Review, vol. 23, no. 1, p. 868 (1917–18). American Political Science Review, vol. 12, p. 324 (1918). Armstrong, Hamilton Fish & Allen W. Dulles, Can We Be Neutral? (2d ed. 1936). Brooklyn Law Review, vol. 6, no. 3, pp. 382–85 (Mar. 1937). Carnegie Endowment for International Peace, Division of International Law, Pamphlet Series No. 12, The Hague Convention (III) of 1907 Relative to the Opening of Hostilities (1915). Chambrun, Adolphe de, The Executive Power in the United States: A Study of Constitutional Law (1874). Columbia Law Review, vol. 36, no. 7, p. 1162 (Nov. 1936). Conkling, Alfred, The Powers of the Executive Department of the Government of the United States (1866). Corwin, Edward S., The President’s Control of Foreign Relations (1917). Dulles, Allen W. & Hamilton Fish Armstrong, Can We Be Neutral? (2d ed. 1936). Elliot, Jonathan, Journal and Debates of the Federal Convention, vol. 4 (1830). Fordham Law Review, vol. 6, no. 2 (May 1937). Georgetown Law Journal, vol. 25, no. 3, pp. 738–40 (Mar. 1937). George Washington Law Review, vol. 5, no. 2, p. 271 (Jan. 1937). Hamilton, Alexander, The Works of Alexander Hamilton, vol. 7 (John C. Hamilton ed., 1851). Harvard Law Review, vol. 50, no. 4, p. 691 (Feb. 1937). Hershey, Amos S., The International Law and Diplomacy of the Russo-Japanese War (1906). Hudson, Manley O., International Legislation, vol. 3 (1931). Hyde, Charles Cheney, International Law, Chiefly as Interpreted and Applied by the United States, vol. 2 (1922). Jefferson, Thomas, The Writings of Thomas Jefferson, vols. 3, 9, and 10 (Andrew A. Lipscomb ed., mem. ed. 1903–04). Latané, John Halladay, A History of American Foreign Policy (1927). MacDonald, William, Select Documents Illustrative of the History of the United States, 1776–1861 (1930). Madison, James, Letters and Other Writings of James Madison, vol. 1 (1865). Matthews, John Mabry, The Conduct of American Foreign Relations (1922). Maryland Law Review, vol. 1, no. 2, pp. 167–71 (Feb. 1937). Moore, John Bassett, A Digest of International Law, vol. 7 (1906). North American Review, vol. 199 (1914). Oppenheim, Lassa, International Law, vol. 2 (A.D. McNair ed., 4th ed. 1926). Phillipson, Coleman, International Law and the Great War (1915). 76 The President’s Power in the Field of Foreign Relations Pomeroy, John Norton, An Introduction to the Constitutional Law of the United States (7th ed. 1883). Reinsch, Paul S., Readings on American Federal Government (1909). St. John’s Law Review, vol. 11, no. 2 (Apr. 1937). Savage, Carlton, Policy of the United States Toward Maritime Commerce in War, vol. 2 (1934). Taft, William Howard, The Presidency: Its Duties, Its Powers, Its Opportunities and Its Limitations (1916). Temple Law Quarterly, vol. 11, no. 3, pp. 418–21 (Apr. 1937). Warren, Charles, Presidential Declarations of Independence (1930). Wheaton, Henry, Wheaton’s Elements of International Law, vol. 2 (A. Berriedale Keith ed., 6th English ed. 1929). Willoughby, Westel W., The Constitutional Law of the United States, vol. 1 (2d ed. 1929). White, Howard, Executive Influence in Determining Military Policy in the United States (1925). Wright, Quincy, The Control of American Foreign Relations (1922). Yale Law Journal, vol. 16, no. 1, pp. 6–24 (Nov. 1906). Yale Law Journal, vol. 25, no. 8, pp. 599–616 (June 1916). 77

Write a legal research memo on the following topic.

The President’s Authority to Force the Shah to Return to Iran T h e S h ah can n o t be ex trad ited to Iran, since th e U n ited S tates has no ex tra d itio n tre a ty w ith Iran; h o w e v e r, § § 241(a)(7) an d 212(a)(27) o f th e Im m ig ratio n and N a tio n a lity A ct (IN A ) w o u ld p erm it the A tto rn e y G e n e ra l to d e p o rt th e S hah if his p resen c e in this c o u n try w e re d eterm in ed to be preju d icial to th e public interest. O n its face, § 243(a) o f th e IN A ap p ears to p erm it th e A tto rn e y G e n e ra l to fo rce the S hah, upon d e p o rta tio n , to re tu rn to Iran; h o w e v e r, § 243(h) o f th e IN A an d app licab le prin cip les o f in tern atio n al law w o u ld p re c lu d e th e A tto rn e y G e n e ra l’s fo rcin g a n y o n e to re tu rn to a c o u n try w h e re he o r she w o u ld be su b ject to political p ersec u tio n , as the S h ah w o u ld be if d e p o rte d to Iran. Novem ber 23, 1979 M E M O R A N D U M O P IN IO N F O R T H E A T T O R N E Y G E N E R A L A m ong the questions that have arisen in informal conversations during recent days is the issue w hether the President has the authority to repatriate the deposed Shah o f Iran. U nder the decided cases there is doubt about the President’s legal authority to com pel the Shah to return to Iran. T he Shah cannot be extradited to Iran. T he President cannot order any person extradited unless a treaty or statute authorizes him to do so. “[T]he pow er to provide for extradition . . . is not confided to the Executive in the absence o f treaty or legislative provision.” Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8 (1936).1 T he United States has no extradition treaty with Iran, see 18 U.S.C. §3181 note, and the applicable statute authorizes extradition only when “ there is a treaty or convention for extradition between the United States and [a] foreign governm ent.” 18 U.S.C. §3184.2 1Valentine involved an effort to extradite American citizens to a foreign country, but for several reasons the case should be read to limit efforts to extradite any person. First, the language and reasoning o f the case are almost uniform ly broad enough to apply to all extraditions. Second, so far as w e are aw are, no low er court has ev er read Valentine to hold that the President has g reater pow er to extradite aliens than he does to extradite citizens. See. e.g., Argento v. Horn, 241 F.2d 258, 259 (6th Cir. 1957). T h ird , the Valentine C ourt rested its holding on "th e fundam ental consideration that the C onstitution creates no executive prerogative to dispose o f the liberty o f the individual. Proceedings against him must be authorized by law ." Id. at 9. It is now clear, although it may not have been at the time o f Valentine, that aliens as well as citizens are deprived o f their "individual liberty” —at least for purposes o f the D ue Process C lause—w hen they are forced to leave the U nited States. See. e.g., Wong Yang Sung v. McGrath. 339 U.S. 33, 49-50 (1950). 2Even if Valentine permits the President to extradite an alien w ithout affirm ative authority from a treaty o r statute, see note 1 supra, this statute, by authorizing extradition only to nations w ith w hom the United States has a treaty, arguably denies the President the p o w er to extradite in all o th e r cases. 149 T he President can have the Shah deported and forced to return to Iran. Section 241(a)(7) o f the Im m igration and Nationality A ct, refer­ ring to §212(a)(27), provides that “ [a]ny alien in the United States . . . shall, upon the order o f the A ttorney G eneral, be deported who . . . is engaged . . . in any . . . activities w hich w ould be prejudicial to the public interest, or endanger the welfare, safety, or security o f the United States.” 8 U.S.C. §§ 1251(a)(7), 1182(a)(27). It is unclear w hether the Shah’s merely being in the United States, and accepting medical care, am ounts to an “activity” within §§ 241(a)(7) and 212(a)(27). A l­ though the issue is not free from doubt, we believe that the better view, adopted by previous opinions o f this Office, is that presence alone can constitute an “activity” under these sections. By causing the lives of A m erican hostages to be threatened, the Shah’s presence probably is “prejudicial to the public interest” if indeed it does not “endanger the welfare [or] safety . . . o f the United States.” In addition, this Office has previously expressed the view that serious harm to the N ation’s conduct o f foreign affairs constitutes prejudice to the public interest within the meaning o f these provisions.3 Thus § § 241(a)(7) and 212(a)(27) permit the A ttorney G eneral to deport the Shah. If the Shah is deported, § 243(a) o f the A ct, 8 U.S.C. § 1253(a), appears on its face to em pow er the A ttorney G eneral to force him to return to Iran. Section 243(a) provides that a deported alien is to be sent to a country he designates, “ unless the A ttorney General, in his discretion, concludes that deportation to such country would be preju­ dicial to the interests o f the United States.” If the A ttorney General believed that allowing the Shah to leave the United States for a nation other than Iran would endanger the lives o f Am erican hostages or harm Am erican foreign policy, he could exercise his discretion to reject the Shah’s designation.4 If an alien’s designation is not observed, “de­ portation o f such alien shall be directed to any country o f w hich such alien is a subject, national, or citizen if such country is willing to accept him into its territory.” § 243(a), 8 U.S.C. § 1253(a).5 Section 243(h) o f the Im m igration and N ationality Act, how ever, provides that T he A ttorney G eneral is authorized to w ithhold deporta­ tion o f any alien within the United States to any country in w hich in his opinion the alien w ould be subject to 3 Specifically, in 1977 this O ffice concluded that the A tto rn ey G eneral had the pow er to exclude trade representatives o f the illegal R hodesian governm ent on the grounds that their activities w ould adversely affect A m erican foreign policy interests and that even allow ing them to enter the country w ould violate o u r obligations under a S ecu rity Council R esolution. 4 See o u r interpretation o f parallel language— “ prejudicial to the public interest"—in §§ 241(a)(7) and 212(a)(27), w hich authorize deportation. 5 If the Shah has been stripped o f his Iranian citizenship, and is no longer an Iranian national, § 243(a) still gives the A tto rn ey G eneral am ple authority to deport him to Iran. See, e.g., § 243(a)(3), (7), 8 U .S .C § 1253(a)(3), (7). 150 persecution on account o f race, religion, or political opinion . . . . 8 U.S.C. § 1253(h). Courts have consistently followed the unvarying practice o f the A ttorney General, see M atter o f Dunar, 14 I.&N. Dec. 310, 322 n.20 (1973), and interpreted § 243(h) not just to authorize but to require the A ttorney G eneral not to deport an alien to a country w here he is likely to be persecuted. See, e.g., Kovac v. IN S, 407 F.2d 102, 104 (9th Cir. 1969); U.S. ex rel. Dolenz v. Shaughnessy, 206 F.2d 392, 395 (2d Cir. 1953); 1 G ordon & Rosenfield, Im m igration Law and P rocedure 5-178, 5-179 (1979). T he M ultilateral Protocol Relating to the Status o f Refugees, which binds the United States, confirms this interpretation. It provides: No C ontracting State shall expel or return (“refouler”) a refugee in any m anner w hatsoever to the frontiers of territories w here his life or freedom would be threatened on account o f his race, religion, nationality, membership o f a particular social group o r political opinion.6 “ Refugee” is defined, in part, as: any person w ho . . . ow ing to a well-founded fear of being persecuted for reasons o f race, religion, nationality, membership o f a particular social group o r political opin­ ion, is outside the country o f his nationality. . . . 7 Thus the Protocol allows the A ttorney G eneral no d iscretio n 8 to deport a refugee to a territory “w here his life or freedom would be threatened” by political persecution.9 T he only remaining issue, under both the Protocol and § 243(h), is w hether the Shah w ould be “ persecuted” on account o f “ political opinion” if he w ere returned to Iran. In other cases courts have gener­ ally deferred to the conclusion o f the Im m igration and N aturalization Service (IN S)—the A ttorney G eneral’s delegate—on this issue, but that 6A rticle 33, U nited N ations C onvention R elating to the Status o f Refugees, 185 U .N .T.S. 150, 176 (1954), incorporated in the P rotocol, 19 U .S.T. 6223, T.I.A .S. No. 6577 (1968). ’ A rticle 1 o f U nited N ations C onvention, supra note 6. flT he Protocol does specify that “ [t]he benefit o f [this protection] may not, how ever, be claim ed by a refugee w hom there are reasonable grounds for regarding as a danger to the security o f the country in w hich he is . . A rticle 33 o f the U.N. C onvention, supra note 6. It is unlikely that “danger to the security" o f the asylum country should be interpreted to include threats made, in an effort to obtain the refugee, by the co u n try w hich w ants to persecute him; such an interpretation w ould in effect allow the very nation from w hich the refugee needs protection to nullify that protection. T his point is not entirely clear, how ever, and a colorable argum ent can be made from the language itself that the Protocol w ould authorize the President to return the Shah. This issue should be review ed w ith those at the State D epartm ent w h o have had experience w ith m atters o f this sort. 9T h e legislative history o f the ratification o f the P rotocol suggests that the Senate understood A rticle 33 to make little change in prevailing law under § 243(h), but this understanding w as based on the consistent interpretation o f § 243(h) as requiring, and not ju st authorizing, the A ttorney G enera) to w ithhold the deportation o f likely victims o f persecution. See M atter o f Dunar, 14 I. & N. D ec. 310 (1973). O n this basis, the courts and the Im m igration and N aturalization Service have held that the requirem ents o f § 243(h) are substantially the same as those o f A rticle 33. See id. at 322-23; Kashani v. IN S, 547 F.2d 376, 379 (7th Cir. 1977). 151 has been because the only dispute was factual; the alien asserted, and the IN S denied, that the alien w ould be harm ed or punished by the country to w hich the IN S proposed to deport him. T he facts about the reception the Shah would receive in Iran are fairly clear, how ever, so in this case the issue would becom e basically one o f law —w hether “persecution on account o f . . . political opinion” correctly characterizes the actions the Iranian governm ent has prom ­ ised to take. In dealing w ith this question o f law courts have inter­ preted the language them selves and have been reluctant to defer to the IN S ’s interpretations. See, e.g., Kovac v. INS, 407 F.2d 102, 104-07 (9th Cir. 1969); Sovich v. Esperdy, 319 F.2d 21, 25-29 (2d Cir. 1963). And under the standards that have developed, w hat the Iranian governm ent proposes to do w ould almost certainly qualify as persecution on ac­ count o f political opinion. C ourts have found, for example, that a threatened prosecution constituted persecution w hen it was politically m otivated and w hen the procedures w ould be irregular or capricious. See, e.g., Coriolan v. IN S, 559 F.2d 993, 1000-04 (5th Cir. 1977) (Tuttle, J.; Coleman, J., dissenting). In general, if an alien can establish that he is likely to be punished upon his return, courts have allowed him to be deported only if the punishm ent is for an “ordinary crim e” o f the sort that might be punished under any regime and that has no overtly political import. See, e.g., M acC au d v. INS, 500 F.2d 355, 359 (2d Cir. 1974); K alatjis v. Rosenberg,- 305 F.2d 249, 252 (9th Cir. 1962). If a policy decision w ere made to press for the Shah’s deportation to Iran, it could be argued that Iran w ants to punish the Shah not for his opinions but for his actions. But apparently those same actions, if taken to prom ote a different political view or cause, w ould not now be a crime in Iran; this is probably sufficient to make the Shah’s prospective punishm ent “persecution on account o f . . . political opinion.” See, e.g., Coriolan v. INS, supra; Ross v. IN S, 440 F.2d 100, 101 (1st Cir. 1971). F o r these reasons, on the facts available at this time, w e believe that the A ttorney G eneral lacks the authority to require the Shah to return to Iran. L arry A. H am m ond D eputy Assistant Attorney General Office o f Legal Counsel 152

Write a legal research memo on the following topic.

The President’s Authority to Force the Shah to Return to Iran T h e S h ah can n o t be ex trad ited to Iran, since th e U n ited S tates has no ex tra d itio n tre a ty w ith Iran; h o w e v e r, § § 241(a)(7) an d 212(a)(27) o f th e Im m ig ratio n and N a tio n a lity A ct (IN A ) w o u ld p erm it the A tto rn e y G e n e ra l to d e p o rt th e S hah if his p resen c e in this c o u n try w e re d eterm in ed to be preju d icial to th e public interest. O n its face, § 243(a) o f th e IN A ap p ears to p erm it th e A tto rn e y G e n e ra l to fo rce the S hah, upon d e p o rta tio n , to re tu rn to Iran; h o w e v e r, § 243(h) o f th e IN A an d app licab le prin cip les o f in tern atio n al law w o u ld p re c lu d e th e A tto rn e y G e n e ra l’s fo rcin g a n y o n e to re tu rn to a c o u n try w h e re he o r she w o u ld be su b ject to political p ersec u tio n , as the S h ah w o u ld be if d e p o rte d to Iran. Novem ber 23, 1979 M E M O R A N D U M O P IN IO N F O R T H E A T T O R N E Y G E N E R A L A m ong the questions that have arisen in informal conversations during recent days is the issue w hether the President has the authority to repatriate the deposed Shah o f Iran. U nder the decided cases there is doubt about the President’s legal authority to com pel the Shah to return to Iran. T he Shah cannot be extradited to Iran. T he President cannot order any person extradited unless a treaty or statute authorizes him to do so. “[T]he pow er to provide for extradition . . . is not confided to the Executive in the absence o f treaty or legislative provision.” Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8 (1936).1 T he United States has no extradition treaty with Iran, see 18 U.S.C. §3181 note, and the applicable statute authorizes extradition only when “ there is a treaty or convention for extradition between the United States and [a] foreign governm ent.” 18 U.S.C. §3184.2 1Valentine involved an effort to extradite American citizens to a foreign country, but for several reasons the case should be read to limit efforts to extradite any person. First, the language and reasoning o f the case are almost uniform ly broad enough to apply to all extraditions. Second, so far as w e are aw are, no low er court has ev er read Valentine to hold that the President has g reater pow er to extradite aliens than he does to extradite citizens. See. e.g., Argento v. Horn, 241 F.2d 258, 259 (6th Cir. 1957). T h ird , the Valentine C ourt rested its holding on "th e fundam ental consideration that the C onstitution creates no executive prerogative to dispose o f the liberty o f the individual. Proceedings against him must be authorized by law ." Id. at 9. It is now clear, although it may not have been at the time o f Valentine, that aliens as well as citizens are deprived o f their "individual liberty” —at least for purposes o f the D ue Process C lause—w hen they are forced to leave the U nited States. See. e.g., Wong Yang Sung v. McGrath. 339 U.S. 33, 49-50 (1950). 2Even if Valentine permits the President to extradite an alien w ithout affirm ative authority from a treaty o r statute, see note 1 supra, this statute, by authorizing extradition only to nations w ith w hom the United States has a treaty, arguably denies the President the p o w er to extradite in all o th e r cases. 149 T he President can have the Shah deported and forced to return to Iran. Section 241(a)(7) o f the Im m igration and Nationality A ct, refer­ ring to §212(a)(27), provides that “ [a]ny alien in the United States . . . shall, upon the order o f the A ttorney G eneral, be deported who . . . is engaged . . . in any . . . activities w hich w ould be prejudicial to the public interest, or endanger the welfare, safety, or security o f the United States.” 8 U.S.C. §§ 1251(a)(7), 1182(a)(27). It is unclear w hether the Shah’s merely being in the United States, and accepting medical care, am ounts to an “activity” within §§ 241(a)(7) and 212(a)(27). A l­ though the issue is not free from doubt, we believe that the better view, adopted by previous opinions o f this Office, is that presence alone can constitute an “activity” under these sections. By causing the lives of A m erican hostages to be threatened, the Shah’s presence probably is “prejudicial to the public interest” if indeed it does not “endanger the welfare [or] safety . . . o f the United States.” In addition, this Office has previously expressed the view that serious harm to the N ation’s conduct o f foreign affairs constitutes prejudice to the public interest within the meaning o f these provisions.3 Thus § § 241(a)(7) and 212(a)(27) permit the A ttorney G eneral to deport the Shah. If the Shah is deported, § 243(a) o f the A ct, 8 U.S.C. § 1253(a), appears on its face to em pow er the A ttorney G eneral to force him to return to Iran. Section 243(a) provides that a deported alien is to be sent to a country he designates, “ unless the A ttorney General, in his discretion, concludes that deportation to such country would be preju­ dicial to the interests o f the United States.” If the A ttorney General believed that allowing the Shah to leave the United States for a nation other than Iran would endanger the lives o f Am erican hostages or harm Am erican foreign policy, he could exercise his discretion to reject the Shah’s designation.4 If an alien’s designation is not observed, “de­ portation o f such alien shall be directed to any country o f w hich such alien is a subject, national, or citizen if such country is willing to accept him into its territory.” § 243(a), 8 U.S.C. § 1253(a).5 Section 243(h) o f the Im m igration and N ationality Act, how ever, provides that T he A ttorney G eneral is authorized to w ithhold deporta­ tion o f any alien within the United States to any country in w hich in his opinion the alien w ould be subject to 3 Specifically, in 1977 this O ffice concluded that the A tto rn ey G eneral had the pow er to exclude trade representatives o f the illegal R hodesian governm ent on the grounds that their activities w ould adversely affect A m erican foreign policy interests and that even allow ing them to enter the country w ould violate o u r obligations under a S ecu rity Council R esolution. 4 See o u r interpretation o f parallel language— “ prejudicial to the public interest"—in §§ 241(a)(7) and 212(a)(27), w hich authorize deportation. 5 If the Shah has been stripped o f his Iranian citizenship, and is no longer an Iranian national, § 243(a) still gives the A tto rn ey G eneral am ple authority to deport him to Iran. See, e.g., § 243(a)(3), (7), 8 U .S .C § 1253(a)(3), (7). 150 persecution on account o f race, religion, or political opinion . . . . 8 U.S.C. § 1253(h). Courts have consistently followed the unvarying practice o f the A ttorney General, see M atter o f Dunar, 14 I.&N. Dec. 310, 322 n.20 (1973), and interpreted § 243(h) not just to authorize but to require the A ttorney G eneral not to deport an alien to a country w here he is likely to be persecuted. See, e.g., Kovac v. IN S, 407 F.2d 102, 104 (9th Cir. 1969); U.S. ex rel. Dolenz v. Shaughnessy, 206 F.2d 392, 395 (2d Cir. 1953); 1 G ordon & Rosenfield, Im m igration Law and P rocedure 5-178, 5-179 (1979). T he M ultilateral Protocol Relating to the Status o f Refugees, which binds the United States, confirms this interpretation. It provides: No C ontracting State shall expel or return (“refouler”) a refugee in any m anner w hatsoever to the frontiers of territories w here his life or freedom would be threatened on account o f his race, religion, nationality, membership o f a particular social group o r political opinion.6 “ Refugee” is defined, in part, as: any person w ho . . . ow ing to a well-founded fear of being persecuted for reasons o f race, religion, nationality, membership o f a particular social group o r political opin­ ion, is outside the country o f his nationality. . . . 7 Thus the Protocol allows the A ttorney G eneral no d iscretio n 8 to deport a refugee to a territory “w here his life or freedom would be threatened” by political persecution.9 T he only remaining issue, under both the Protocol and § 243(h), is w hether the Shah w ould be “ persecuted” on account o f “ political opinion” if he w ere returned to Iran. In other cases courts have gener­ ally deferred to the conclusion o f the Im m igration and N aturalization Service (IN S)—the A ttorney G eneral’s delegate—on this issue, but that 6A rticle 33, U nited N ations C onvention R elating to the Status o f Refugees, 185 U .N .T.S. 150, 176 (1954), incorporated in the P rotocol, 19 U .S.T. 6223, T.I.A .S. No. 6577 (1968). ’ A rticle 1 o f U nited N ations C onvention, supra note 6. flT he Protocol does specify that “ [t]he benefit o f [this protection] may not, how ever, be claim ed by a refugee w hom there are reasonable grounds for regarding as a danger to the security o f the country in w hich he is . . A rticle 33 o f the U.N. C onvention, supra note 6. It is unlikely that “danger to the security" o f the asylum country should be interpreted to include threats made, in an effort to obtain the refugee, by the co u n try w hich w ants to persecute him; such an interpretation w ould in effect allow the very nation from w hich the refugee needs protection to nullify that protection. T his point is not entirely clear, how ever, and a colorable argum ent can be made from the language itself that the Protocol w ould authorize the President to return the Shah. This issue should be review ed w ith those at the State D epartm ent w h o have had experience w ith m atters o f this sort. 9T h e legislative history o f the ratification o f the P rotocol suggests that the Senate understood A rticle 33 to make little change in prevailing law under § 243(h), but this understanding w as based on the consistent interpretation o f § 243(h) as requiring, and not ju st authorizing, the A ttorney G enera) to w ithhold the deportation o f likely victims o f persecution. See M atter o f Dunar, 14 I. & N. D ec. 310 (1973). O n this basis, the courts and the Im m igration and N aturalization Service have held that the requirem ents o f § 243(h) are substantially the same as those o f A rticle 33. See id. at 322-23; Kashani v. IN S, 547 F.2d 376, 379 (7th Cir. 1977). 151 has been because the only dispute was factual; the alien asserted, and the IN S denied, that the alien w ould be harm ed or punished by the country to w hich the IN S proposed to deport him. T he facts about the reception the Shah would receive in Iran are fairly clear, how ever, so in this case the issue would becom e basically one o f law —w hether “persecution on account o f . . . political opinion” correctly characterizes the actions the Iranian governm ent has prom ­ ised to take. In dealing w ith this question o f law courts have inter­ preted the language them selves and have been reluctant to defer to the IN S ’s interpretations. See, e.g., Kovac v. INS, 407 F.2d 102, 104-07 (9th Cir. 1969); Sovich v. Esperdy, 319 F.2d 21, 25-29 (2d Cir. 1963). And under the standards that have developed, w hat the Iranian governm ent proposes to do w ould almost certainly qualify as persecution on ac­ count o f political opinion. C ourts have found, for example, that a threatened prosecution constituted persecution w hen it was politically m otivated and w hen the procedures w ould be irregular or capricious. See, e.g., Coriolan v. IN S, 559 F.2d 993, 1000-04 (5th Cir. 1977) (Tuttle, J.; Coleman, J., dissenting). In general, if an alien can establish that he is likely to be punished upon his return, courts have allowed him to be deported only if the punishm ent is for an “ordinary crim e” o f the sort that might be punished under any regime and that has no overtly political import. See, e.g., M acC au d v. INS, 500 F.2d 355, 359 (2d Cir. 1974); K alatjis v. Rosenberg,- 305 F.2d 249, 252 (9th Cir. 1962). If a policy decision w ere made to press for the Shah’s deportation to Iran, it could be argued that Iran w ants to punish the Shah not for his opinions but for his actions. But apparently those same actions, if taken to prom ote a different political view or cause, w ould not now be a crime in Iran; this is probably sufficient to make the Shah’s prospective punishm ent “persecution on account o f . . . political opinion.” See, e.g., Coriolan v. INS, supra; Ross v. IN S, 440 F.2d 100, 101 (1st Cir. 1971). F o r these reasons, on the facts available at this time, w e believe that the A ttorney G eneral lacks the authority to require the Shah to return to Iran. L arry A. H am m ond D eputy Assistant Attorney General Office o f Legal Counsel 152

Write a legal research memo on the following topic.

Validity of Federal Tax Lien on Civil Service Retirement Refund Under 5 U.S.C. § 8346(a), the Internal Revenue Service is barred from attaching the civil service retirement refund o f a former federal employee in order to satisfy her husband’s tax liability, notwithstanding any interest the latter individual may have in the refund under Nevada’s community property law. January 13, 1981 M EM ORANDUM OPIN IO N FO R T H E G E N E R A L COUNSEL, O F F IC E O F PER SO N N EL M A N A G EM EN T This responds to your request for an opinion on the validity of a levy of the Internal Revenue Service (IRS) directed to half the civil service retirement deductions due for refund to Mrs. D, a former federal employee. The levy was occasioned by the individual tax liability of Mrs. D ’s husband, with whom she resides in Nevada, a community property state. The statute relating to civil service retirement benefits that is princi­ pally relevant here provides as follows: The money mentioned by this subchapter [Subchapter III—Civil Service Retirement, consisting of 5 U.S.C. §§ 8331-8348] is not assignable, either in law or equity, except under the provisions o f subsections (h) and (j) o f section 8345 o f this title, or subject to execution, levy, attachment, garnishment, or other legal process, except as otherwise may be provided by Federal laws. 5 U.S.C. § 8346(a) (emphasis added). Subsection (h) of § 8345 permits an individual entitled to an annuity to make allotments or assignments of amounts therefrom for such purposes as the Office of Personnel Management (OPM) considers appropriate. Subsection (j), among other things, requires that funds which are otherwise payable by OPM to an individual under the retirement laws shall be paid instead to another person if so provided in a “court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement incident to” such a decree. Subsection (j) encom­ 37 passes court-ordered divisions o f assets under state community property laws. T he provision of the IR S Code that is principally relevant here is 26 U.S.C. § 6331(a), which reads in pertinent part: If any person liable to pay any tax neglects or refuses to pay the same . . . it shall be lawful for the Secretary [of the Treasury] to collect such tax . . . by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such per­ son . . . . Section 6334 does not exempt any payments made under the civil service retirem ent laws. T he issue in dispute between OPM and IRS is whether the second “except” clause o f 5 U.S.C. § 8346(a) has the effect of bringing Ne­ vada’s community property law into play with regard to the retirement deductions accumulated by OPM for Mrs. D ’s account. If so, IRS may reach 50 percent o f the funds in the account as Mr. D ’s “property [or] rights to property” under 26 U.S.C. § 6331(a). Before dealing specifically with this issue, it will be helpful to trace the history of 5 U.S.C. § 8346(a) and other statutory provisions that may impinge on an individual’s civil service retirement benefits. The original progenitor of § 8346(a) was § 14 of the legislation enacted in 1920 to create the retirement system, Pub. L. No. 66-215, 41 Stat. 614, 620. Section 14 did not contain the italicized language of § 8346(a), supra, but read simply as follows: T hat none of the moneys mentioned in this A ct shall be assignable, either in law or equity, or subject to execution, levy, or attachment, garnishment, or other legal process. This wording remained essentially unchanged until late 1975. How­ ever, before then Congress had provided in other statutes for the governm ent’s deductions of health insurance premiums (5 U.S.C. § 8906(c)), life insurance premiums (5 U.S.C. § 8714a(d)), and medicare premiums (42 U.S.C. § 1395s(d)) from an individual’s retirement annu­ ity. In addition, Congress had enacted § 459 of the Social Security Act, 42 U.S.C. § 659, effective January 1, 1975, which lifted the bar of § 8346(a) and similar provisions in other federal benefit laws for the purpose of allowing garnishment of benefits to satisfy an obligation for child support or alimony.1 T he first amendment to 5 U.S.C. § 8346(a) was made by Pub. L. No. 94-166, 89 Stat. 1002 (1975). It added subsection (h) to § 8345 to permit allotm ents and assignments by annuitants and correspondingly amended *Tw o years later Congress defined “alimony” so as not to include a payment in compliance with a com m unity property settlement—that is, Congress specifically ruled out garnishments to enforce such settlements. 42 U.S.C. § 662(c) (Supp. I 1977). 38 § 8346(a) to introduce the first “except” clause, as it pertains to subsec­ tion (h).2 It also added the second “except” clause. Finally, in 1978, Congress enacted 5 U.S.C. § 8345(j) to allow OPM to comply with a decree, order, or property settlement (including one based on a state’s community property law) that arose from a divorce, annulment, or legal separation.3 Pub. L. No. 95-366, 92 Stat. 600, § l(a)(1978). Section 8346(a) was amended accordingly by the addition of the italicized reference to § 8345(j) in the first “except” clause of § 8346(a). Id.. § 1(b). Turning to the issue before us, we note first that there is nothing in the legislative history of the amendment of § 8346(a) in 1975 to indicate the reason for adding the words, “except as otherwise may be provided by Federal laws,” at its end. In fact, this language was not necessary to achieve the avowed purpose of the 1975 A ct—that is, the authorization of allotments and assignments by annuitants.4 That purpose was realized by the enactment of § 8345(g) and the first “except” clause. Moreover, the second “except” clause was not necessary for the effectiveness of any of the earlier laws listed above because each was self-contained, and it was not necessary to enable IRS to reach funds payable under the retirement law to employees or former employees delinquent in the payment of their taxes.5 The most that can be said about the provision is that it was probably included pro forma. Passing the question o f purpose for the moment, we find that there was also silence in Congress concerning the meaning of the term “Federal laws” in the second “except” clause. We are faced in this context with a significant lack of assistance because we must determine whether the term covers 26 U.S.C. § 6331(a) as read together with the community property law o f a state. If not, IRS cannot take half of Mrs. D ’s retirement deductions to reduce her husband’s indebtedness to the government. We are of the opinion on this point that in the absence of congres­ sional guidance regarding either the purpose o f the second “except” clause or, more importantly, the scope of the term “Federal laws,” the term must be read in its natural sense of embracing only federal statu­ tory laws.6 More particularly, we are unable to find either a precedent ‘ Public Law No. 94-166 mistakenly designated the new subsection in § 8345 as “(g)’’ and made the same mistake in § 8346(a). The errors were corrected by Pub. L. No. 95-366, 92 Stat. 600 (1978). 5 Section 8345(j) in effect negated, as it applied to OPM, the provision in the definition o f “alimony” in 42 U.S.C. § 662(c) that excluded payments based on community property laws. See note 1, supra. 4See H R. Rep. No. 446, 94th Cong., 1st Sess. 1-2 (1975). *39 Comp. Gen. 203 (1959); 27 Comp. Gen. 703 (1948); 21 Comp. Gen. 1000 (1942). These opinions, insofar as relevant here, were grounded on general principles of setoff. 8Cf. H.R. Rep. No. 713, 95th Cong., 1st Sess. 2 (1977), accompanying the bill that enacted § 8345(j). A t p. 2 the Committee paraphrased the second “except” clause o f § 8346(a) as follows: “except as may be expressly provided by Federal laws” (emphasis added). S. Rep. No. 1084, 95th Cong., 2d Sess. 2 (1978), contains the same paraphrase. 39 or a basis for construing the term to encompass a state’s community property law by transmutation through the medium of 26 U.S.C. 6331(a). In short, we conclude that Nevada’s community property law, in the absence o f explicit legislation by Congress, has not created for Mr. D “property [or] rights to property” in his wife’s retirement deduc­ tions that are assailable by IRS. W e are not inattentive to the judicial doctrine that state law gener­ ally governs the determination w hether a federal taxpayer has an own­ ership interest in property sufficient for an IR S levy to grasp for taxes due from him. Aquilino v. United States, 363 U.S. 509 (1960). That rule, o f course, is subject to the strictures o f the Supremacy Clause of the Constitution. See Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979); United States v. Yazell, 382 U.S. 341, 352 (1966). However, we do not view the gloss put on § 6331(a) by Aquilino and similar cases as being pertinent here. It is one thing to hold that, paramount federal interests aside, the government should abide by state laws “in the field of family and family-property arrangements.” United States v. Yazell, 382 U.S. at 352. It is another to conclude that the United States is bound by state law in its ow n administration of the Civil Service Retirement System. T here is no clash between federal and state interests here that re­ quires scrutiny in the light of the Supremacy Clause. W hat is involved in reality is a clash between tw o federal policies, one calling for the expeditious collection o f taxes and the other for the protection of retirem ent deductions and benefits so that they will be paid to the persons who earned them. Since, in the instant matter, the barrier of 5 U.S.C. § 8346(a) remains in place to block the thrust of the power granted IRS by 26 U.S.C. § 6331(a), there can be no question that the latter policy prevails. We are mindful of the consideration that legislation in aid of collection o f Governm ent revenues should be liber­ ally construed and applied. T here is obviously an impera­ tive public interest in favor o f the prompt collection of delinquencies. But manifestly it cannot be validly consid­ ered an overriding policy in any particular situation unless Congress has so demonstrated its intention. United States v. Sullivan, 333 F. 2d 100, 119 (3d Cir., 1964). In summary, IRS is not entitled to obtain any of Mrs. D ’s funds from OPM for application against her husband’s tax liability. L eon U lm a n Deputy Assistant Attorney General Office o f Legal Counsel 40

Write a legal research memo on the following topic.

Authority to Use Military Force in Libya The President had the constitutional authority to direct the use of military force in Libya because he could reasonably determine that such use of force was in the national interest. Prior congressional approval was not constitutionally required to use military force in the limited operations under consideration. April 1, 2011 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL This memorandum memorializes advice this Office provided to you, prior to the commencement of recent United States military operations in Libya, regarding the President’s legal authority to conduct such operations. For the reasons explained below, we concluded that the President had the constitutional authority to direct the use of force in Libya because he could reasonably determine that such use of force was in the national interest. We also advised that prior congressional approval was not constitutionally required to use military force in the limited operations under consideration. I. In mid-February 2011, amid widespread popular demonstrations seeking governmental reform in the neighboring countries of Tunisia and Egypt, as well as elsewhere in the Middle East and North Africa, protests began in Libya against the autocratic government of Colonel Muammar Qadhafi, who has ruled Libya since taking power in a 1969 coup. Qadhafi moved swiftly in an attempt to end the protests using military force. Some Libyan government officials and elements of the Libyan military left the Qadhafi regime, and by early March, Qadhafi had lost control over much of the eastern part of the country, including the city of Benghazi. The Libyan government’s operations against its opponents reportedly included strafing of protesters and shelling, bombing, and other violence deliberately targeting civilians. Many refugees fled to Egypt and other neighboring countries to escape the violence, creating a serious crisis in the region. On February 26, 2011, the United Nations Security Council (“UNSC”) unanimously adopted Resolution 1970, which “[e]xpress[ed] grave con20 Authority to Use Military Force in Libya cern at the situation in the Libyan Arab Jamahiriya,” “condemn[ed] the violence and use of force against civilians,” and “[d]eplor[ed] the gross and systematic violation of human rights” in Libya. S.C. Res. 1970, U.N. Doc. S/RES/1970 (Feb. 26, 2011); Press Release, Security Council, In Swift, Decisive Action, Security Council Imposes Tough Measures on Libyan Regime, Adopting Resolution 1970 in Wake of Crackdown on Protesters, U.N. Press Release SC/10187/Rev. 1 (Feb. 26, 2011). The resolution called upon member states, among other things, to take “the necessary measures” to prevent arms transfers “from or through their territories or by their nationals, or using their flag vessels or aircraft”; to freeze the assets of Qadhafi and certain other close associates of the regime; and to “facilitate and support the return of humanitarian agencies and make available humanitarian and related assistance” in Libya. S.C. Res. 1970, ¶¶ 9, 17, 26. The resolution did not, however, authorize members of the United Nations to use military force in Libya. The Libyan government’s violence against civilians continued, and even escalated, despite condemnation by the UNSC and strong expressions of disapproval from other regional and international bodies. See, e.g., African Union, Communique of the 265th Meeting of the Peace and Security Council, PSC/PR/COMM.2(CCLXV) (Mar. 10, 2011) (describing the “prevailing situation in Libya” as “pos[ing] a serious threat to peace and security in that country and in the region as a whole” and “[r]eiterat[ing] AU’s strong and unequivocal condemnation of the indiscriminate use of force and lethal weapons”); News Release, Organization of the Islamic Conference, OIC General Secretariat Condemns Strongly the Excessive Use of Force Against Civilians in the Libyan Jamahiriya (Feb. 22, 2011), http://www.oic-oci.org/topic_detail.asp?t_id=4947&x_ key= (last visited ca. Apr. 2011) (reporting that “the General Secretariat of the Organization of the Islamic Conference (OIC) voiced its strong condemnation of the excessive use of force against civilians in the Arab Libyan Jamahiriya”). On March 1, 2011, the United States Senate passed by unanimous consent Senate Resolution 85. Among other things, the Resolution “strongly condemn[ed] the gross and systematic violations of human rights in Libya, including violent attacks on protesters demanding democratic reforms,” “call[ed] on Muammar Gadhafi to desist from further violence,” and “urge[d] the United Nations Security Council to take such further action as may be necessary to protect civilians in Libya 21 35 Op. O.L.C. 20 (2011) from attack, including the possible imposition of a no-fly zone over Libyan territory.” S. Res. No. 112-85, §§ 2, 3, 7 (as passed by Senate, Mar. 1, 2011). On March 12, the Council of the League of Arab States similarly called on the UNSC “to take the necessary measures to impose immediately a no-fly zone on Libyan military aviation” and “to establish safe areas in places exposed to shelling as a precautionary measure that allows the protection of the Libyan people and foreign nationals residing in Libya, while respecting the sovereignty and territorial integrity of neighboring States.” League of Arab States, The Outcome of the Council of the League of Arab States Meeting at the Ministerial Level in Its Extraordinary Session on the Implications of the Current Events in Libya and the Arab Position, Res. No. 7360, ¶ 1 (Mar. 12, 2011). By March 17, 2011, Qadhafi’s forces were preparing to retake the city of Benghazi. Pledging that his forces would begin an assault on the city that night and show “no mercy and no pity” to those who would not give up resistance, Qadhafi stated in a radio address: “We will come house by house, room by room. It’s over. The issue has been decided.” Dan Bilefsky & Mark Landler, Military Action Against Qaddafi Is Backed by U.N., N.Y. Times, Mar. 18, 2011, at A1. Qadhafi, President Obama later noted, “compared [his people] to rats, and threatened to go door to door to inflict punishment. . . . We knew that if we . . . waited one more day, Benghazi, a city nearly the size of Charlotte, could suffer a massacre that would have reverberated across the region and stained the conscience of the world.” Press Release, Office of the Press Secretary, The White House, Remarks by the President in Address to the Nation on Libya (Mar. 28, 2011) (“March 28, 2011 Address”), http://www.whitehouse. gov/the-press-office/2011/03/28/remarks-president-address-nation-libya (last visited ca. Apr. 2014). Later the same day, the UNSC addressed the situation in Libya again by adopting, by a vote of 10-0 (with five members abstaining), Resolution 1973, which imposed a no-fly zone and authorized the use of military force to protect civilians. See S.C. Res. 1973, U.N. Doc. S/RES/1973 (Mar. 17, 2011); Press Release, Security Council, Security Council Approves ‘No-Fly Zone’ Over Libya, Authorizing ‘All Necessary Measures’ to Protect Civilians, by Vote of 10 in Favour with 5 Abstentions, U.N. Press Release SC/10200 (Mar. 17, 2011). In this resolution, the UNSC determined that the “situation” in Libya “continues to constitute a threat 22 Authority to Use Military Force in Libya to international peace and security” and “demand[ed] the immediate establishment of a cease-fire and a complete end to violence and all attacks against, and abuses of, civilians.” S.C. Res. 1973. Resolution 1973 authorized member states, acting individually or through regional organizations, “to take all necessary measures . . . to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory.” Id. ¶ 4. The resolution also specifically authorized member states to enforce “a ban on all [unauthorized] flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians” and to take “all measures commensurate to the specific circumstances” to inspect vessels on the high seas suspected of violating the arms embargo imposed on Libya by Resolution 1970. Id. ¶¶ 6–8, 13. In remarks on March 18, 2011, President Obama stated that, to avoid military intervention to enforce Resolution 1973, Qadhafi needed to: implement an immediate ceasefire, including by ending all attacks on civilians; halt his troops’ advance on Benghazi; pull his troops back from three other cities; and establish water, electricity, and gas supplies to all areas. Press Release, Office of the Press Secretary, The White House, Remarks by the President on the Situation in Libya (Mar. 18, 2011) (“March 18, 2011 Remarks”), http://www.whitehouse.gov/thepress-office/2011/03/18/remarks-president-situation-libya (last visited ca. Apr. 2011). The President also identified several national interests supporting United States involvement in the planned operations: Now, here is why this matters to us. Left unchecked, we have every reason to believe that Qaddafi would commit atrocities against his people. Many thousands could die. A humanitarian crisis would ensue. The entire region could be destabilized, endangering many of our allies and partners. The calls of the Libyan people for help would go unanswered. The democratic values that we stand for would be overrun. Moreover, the words of the international community would be rendered hollow. Id. President Obama further noted the broader context of the Libyan uprising, describing it as “just one more chapter in the change that is unfolding across the Middle East and North Africa.” Id. 23 35 Op. O.L.C. 20 (2011) Despite a statement from Libya’s Foreign Minister that Libya would honor the requested ceasefire, the Libyan government continued to conduct offensive operations, including attacks on civilians and civilianpopulated areas. See Press Release, Office of the Press Secretary, The White House, Letter from the President Regarding Commencement of Operations in Libya: Text of a Letter from the President to the Speaker of the House of Representatives and the President Pro Tempore of the Senate (Mar. 21, 2011) (“March 21, 2011 Report to Congress”), http://www. whitehouse.gov/the-press-office/2011/03/21/letter-president-regardingcommencement-operations-libya (last visited ca. Apr. 2011). In response, on March 19, 2011, the United States, with the support of a number of its coalition partners, launched airstrikes against Libyan targets to enforce Resolution 1973. Consistent with the reporting provisions of the War Powers Resolution, 50 U.S.C. § 1543(a) (2006), President Obama provided a report to Congress less than forty-eight hours later, on March 21, 2011. The President explained: At approximately 3:00 p.m. Eastern Daylight Time, on March 19, 2011, at my direction, U.S. military forces commenced operations to assist an international effort authorized by the United Nations (U.N.) Security Council and undertaken with the support of European allies and Arab partners, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya. As part of the multilateral response authorized under U.N. Security Council Resolution 1973, U.S. military forces, under the command of Commander, U.S. Africa Command, began a series of strikes against air defense systems and military airfields for the purposes of preparing a no-fly zone. These strikes will be limited in their nature, duration, and scope. Their purpose is to support an international coalition as it takes all necessary measures to enforce the terms of U.N. Security Council Resolution 1973. These limited U.S. actions will set the stage for further action by other coalition partners. March 21, 2011 Report to Congress. The report then described the background to the strikes, including UNSC Resolution 1973, the demand for a ceasefire, and Qadhafi’s continued attacks. 24 Authority to Use Military Force in Libya The March 21 report also identified the risks to regional and international peace and security that, in the President’s judgment, had justified military intervention: Qadhafi’s continued attacks and threats against civilians and civilian populated areas are of grave concern to neighboring Arab nations and, as expressly stated in U.N. Security Council Resolution 1973, constitute a threat to the region and to international peace and security. His illegitimate use of force not only is causing the deaths of substantial numbers of civilians among his own people, but also is forcing many others to flee to neighboring countries, thereby destabilizing the peace and security of the region. Left unaddressed, the growing instability in Libya could ignite wider instability in the Middle East, with dangerous consequences to the national security interests of the United States. Qadhafi’s defiance of the Arab League, as well as the broader international community . . . represents a lawless challenge to the authority of the Security Council and its efforts to preserve stability in the region. Qadhafi has forfeited his responsibility to protect his own citizens and created a serious need for immediate humanitarian assistance and protection, with any delay only putting more civilians at risk. Id. Emphasizing that “[t]he United States has not deployed ground forces into Libya,” the President explained that “United States forces are conducting a limited and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster” and thus had targeted only “the Qadhafi regime’s air defense systems, command and control structures, and other capabilities of Qadhafi’s armed forces used to attack civilians and civilian populated areas.” Id. The President also indicated that “[w]e will seek a rapid, but responsible, transition of operations to coalition, regional, or international organizations that are postured to continue activities as may be necessary to realize the objectives of U.N. Security Council Resolutions 1970 and 1973.” Id. As authority for the military operations in Libya, President Obama invoked his “constitutional authority to conduct U.S. foreign relations” and his authority “as Commander in Chief and Chief Executive.” Id. Before the initiation of military operations in Libya, White House and other executive branch officials conducted multiple meetings and brief25 35 Op. O.L.C. 20 (2011) ings on Libya with members of Congress and testified on the Administration’s policy at congressional hearings. See Press Release, Office of the Press Secretary, Press Gaggle by Press Secretary Jay Carney, 3/14/2011 (Mar. 24, 2011), http://www.whitehouse.gov/the-press-office/ 2011/03/24/press-gaggle-press-secretary-jay-carney-3242011 (last visited ca. Apr. 2011). President Obama invited Republican and Democratic leaders of Congress to the White House for consultation on March 18, 2011 before launching United States military operations, see id., and personally briefed members of Congress on the ongoing operations on March 25, 2011. Press Release, Office of the Press Secretary, Readout of the President’s Meeting with Members of Congress on Libya (Mar. 25, 2011), http://www.whitehouse.gov/the-press-office/2011/03/ 25/readout-presidents-meeting-members-congress-libya (last visited ca. Apr. 2011). Senior executive branch officials are continuing to brief Senators and members of Congress on U.S. operations and events in Libya as they develop. On March 28, 2011, President Obama addressed the nation regarding the situation in Libya. The President stated that the coalition had succeeded in averting a massacre in Libya and that the United States was now transferring “the lead in enforcing the no-fly zone and protecting civilians on the ground . . . to our allies and partners.” March 28, 2011 Address. In future coalition operations in Libya, the President continued, “the United States will play a supporting role—including intelligence, logistical support, search and rescue assistance, and capabilities to jam regime communications.” Id. The President also reiterated the national interests supporting military action by the United States. “[G]iven the costs and risks of intervention,” he explained, “we must always measure our interests against the need for action.” Id. But, “[i]n this particular country— Libya—at this particular moment, we were faced with the prospect of violence on a horrific scale,” and “[w]e had a unique ability to stop that violence.” Id. Failure to prevent a slaughter would have disregarded America’s “important strategic interest in preventing Qaddafi from overrunning those who oppose him”: A massacre would have driven thousands of additional refugees across Libya’s borders, putting enormous strains on the peaceful— yet fragile—transitions in Egypt and Tunisia. The democratic impulses that are dawning across the region would be eclipsed by the 26 Authority to Use Military Force in Libya darkest form of dictatorship, as repressive leaders concluded that violence is the best strategy to cling to power. The writ of the United Nations Security Council would have been shown to be little more than empty words, crippling that institution’s future credibility to uphold global peace and security. So while I will never minimize the costs involved in military action, I am convinced that a failure to act in Libya would have carried a far greater price for America. Id. As of March 31, 2011, the United States had transferred responsibility for all ongoing coalition military operations in Libya to the North Atlantic Treaty Alliance (“NATO”). II. The President explained in his March 21, 2011 report to Congress that the use of military force in Libya serves important U.S. interests in preventing instability in the Middle East and preserving the credibility and effectiveness of the United Nations Security Council. The President also stated that he intended the anticipated United States military operations in Libya to be limited in nature, scope, and duration. The goal of action by the United States was to “set the stage” for further action by coalition partners in implementing UNSC Resolution 1973, particularly through destruction of Libyan military assets that could either threaten coalition aircraft policing the UNSC-declared no-fly zone or engage in attacks on civilians and civilian-populated areas. In addition, no U.S. ground forces would be deployed, except possibly for any search and rescue missions, and the risk of substantial casualties for U.S. forces would be low. As we advised you prior to the commencement of military operations, we believe that, under these circumstances, the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad, even without prior specific congressional approval. A. Earlier opinions of this Office and other historical precedents establish the framework for our analysis. As we explained in 1992, Attorneys General and this Office “have concluded that the President has the power to commit United States troops abroad,” as well as to “take military 27 35 Op. O.L.C. 20 (2011) action,” “for the purpose of protecting important national interests,” even without specific prior authorization from Congress. Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. 6, 9 (1992) (“Military Forces in Somalia”). This independent authority of the President, which exists at least insofar as Congress has not specifically restricted it, see Deployment of United States Armed Forces Into Haiti, 18 Op. O.L.C. 173, 176 n.4, 178 (1994) (“Haiti Deployment I”), derives from the President’s “unique responsibility,” as Commander in Chief and Chief Executive, for “foreign and military affairs,” as well as national security. Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 188 (1993); U.S. Const. art. II, § 1, cl. 1; id. § 2, cl. 2. The Constitution, to be sure, divides authority over the military between the President and Congress, assigning to Congress the authority to “declare War,” “raise and support Armies,” and “provide and maintain a Navy,” as well as general authority over the appropriations on which any military operation necessarily depends. U.S. Const. art. I, § 8, cls. 1, 11– 14. Yet, under “the historical gloss on the ‘executive Power’ vested in Article II of the Constitution,” the President bears the “‘vast share of responsibility for the conduct of our foreign relations,’” Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring)), and accordingly holds “independent authority ‘in the areas of foreign policy and national security.’” Id. at 429 (quoting Haig v. Agee, 453 U.S. 280, 291 (1981)); see also, e.g., Youngstown Sheet & Tube Co., 343 U.S. at 635–36 n.2 (Jackson, J., concurring) (noting President’s constitutional power to “act in external affairs without congressional authority”). Moreover, the President as Commander in Chief “superintend[s] the military,” Loving v. United States, 517 U.S. 748, 772 (1996), and “is authorized to direct the movements of the naval and military forces placed by law at his command.” Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850); see also Placing of United States Armed Forces Under United Nations Operational or Tactical Control, 20 Op. O.L.C. 182, 184 (1996). The President also holds “the implicit advantage . . . over the legislature under our constitutional scheme in situations calling for immediate action,” given that imminent national security threats and rapidly evolving military and diplomatic circumstances may require a swift response by the United States without the opportunity for congressional deliberation and action. 28 Authority to Use Military Force in Libya Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185, 187 (1980) (“Presidential Power”); see also Haig, 453 U.S. at 292 (noting “‘the changeable and explosive nature of contemporary international relations, and the fact that the Executive is immediately privy to information which cannot be swiftly presented to, evaluated by, and acted upon by the legislature’”) (quoting Zemel v. Rusk, 381 U.S. 1, 17 (1965). Accordingly, as Attorney General (later Justice) Robert Jackson observed over half a century ago, “the President’s authority has long been recognized as extending to the dispatch of armed forces outside of the United States, either on missions of goodwill or rescue, or for the purpose of protecting American lives or property or American interests.” Training of British Flying Students in the United States, 40 Op. Att’y Gen. 58, 62 (1941). This understanding of the President’s constitutional authority reflects not only the express assignment of powers and responsibilities to the President and Congress in the Constitution, but also, as noted, the “historical gloss” placed on the Constitution by two centuries of practice. Garamendi, 539 U.S. at 414. “Our history,” this Office observed in 1980, “is replete with instances of presidential uses of military force abroad in the absence of prior congressional approval.” Presidential Power, 4A Op. O.L.C. at 187; see generally Richard F. Grimmett, Cong. Research Serv., R41677, Instances of Use of United States Armed Forces Abroad, 1798– 2010 (2011) (“Grimmet”). Since then, instances of such presidential initiative have only multiplied, with Presidents ordering, to give just a few examples, bombing in Libya (1986), an intervention in Panama (1989), troop deployments to Somalia (1992), Bosnia (1995), and Haiti (twice, 1994 and 2004), air patrols and airstrikes in Bosnia (1993–1995), and a bombing campaign in Yugoslavia (1999), without specific prior authorizing legislation. See Grimmett at 13–31. This historical practice is an important indication of constitutional meaning, because it reflects the two political branches’ practical understanding, developed since the founding of the Republic, of their respective roles and responsibilities with respect to national defense, and because “[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.” Haig, 453 U.S. at 292. In this context, the “pattern of executive conduct, made under claim of right, extended over many decades and engaged in by Presidents of both parties, ‘evidences the existence of 29 35 Op. O.L.C. 20 (2011) broad constitutional power.’” Haiti Deployment I, 18 Op. O.L.C. at 178 (quoting Presidential Power, 4A Op. O.L.C. at 187); see also Proposed Deployment of United States Armed Forces into Bosnia, 19 Op. O.L.C. 327, 330–31 (1995) (“Proposed Bosnia Deployment”) (noting that “[t]he scope and limits” of Congress’s power to declare war “are not well defined by constitutional text, case law, or statute,” but the relationship between that power and the President’s authority as Commander in Chief and Chief Executive has been instead “clarified by 200 years of practice”). Indeed, Congress itself has implicitly recognized this presidential authority. The War Powers Resolution (“WPR”), 50 U.S.C. §§ 1541–1548 (2006), a statute Congress described as intended “to fulfill the intent of the framers of the Constitution of the United States,” id. § 1541(a), provides that, in the absence of a declaration of war, the President must report to Congress within 48 hours of taking certain actions, including introduction of U.S. forces “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” Id. § 1543(a). The Resolution further provides that the President generally must terminate such use of force within 60 days (or 90 days for military necessity) unless Congress extends this deadline, declares war, or “enact[s] a specific authorization.” Id. § 1544(b). As this Office has explained, although the WPR does not itself provide affirmative statutory authority for military operations, see id. § 1547(d)(2), the Resolution’s “structure . . . recognizes and presupposes the existence of unilateral presidential authority to deploy armed forces” into hostilities or circumstances presenting an imminent risk of hostilities. Haiti Deployment I, 18 Op. O.L.C. at 175; see also Proposed Bosnia Deployment, 19 Op. O.L.C. at 334. That structure—requiring a report within 48 hours after the start of hostilities and their termination within 60 days after that—“makes sense only if the President may introduce troops into hostilities or potential hostilities without prior authorization by the Congress.” Haiti Deployment I, 18 Op. O.L.C. at 175–76; see also Proposed Bosnia Deployment, 19 Op. O.L.C. at 334–35. 1 A policy statement in the WPR states that “[t]he constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statuto1 30 Authority to Use Military Force in Libya We have acknowledged one possible constitutionally based limit on this presidential authority to employ military force in defense of important national interests—a planned military engagement that constitutes a “war” within the meaning of the Declaration of War Clause may require prior congressional authorization. See Proposed Bosnia Deployment, 19 Op. O.L.C. at 331; Haiti Deployment I, 18 Op. O.L.C. at 177. But the historical practice of presidential military action without congressional approval precludes any suggestion that Congress’s authority to declare war covers every military engagement, however limited, that the President initiates. In our view, determining whether a particular planned engagement constitutes a “war” for constitutional purposes instead requires a fact-specific assessment of the “anticipated nature, scope, and duration” of the planned military operations. Haiti Deployment I, 18 Op. O.L.C. at 179. This standard generally will be satisfied only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period. Again, Congress’s own key enactment on the subject reflects this understanding. By allowing United States involvement in hostilities to continue for 60 or 90 days, Congress signaled in the WPR that it considers congressional authorization most critical for “major, prolonged conflicts such as the wars in Vietnam and Korea,” not more limited engagements. Id. at 176. Applying this fact-specific analysis, we concluded in 1994 that a planned deployment of up to 20,000 United States troops to Haiti to oust military leaders and reinstall Haiti’s legitimate government was not a “war” requiring advance congressional approval. Id. at 174 n.1, 178–79 & ry authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” 50 U.S.C. § 1541(c). But this policy statement “is not to be viewed as limiting presidential action in any substantive manner.” Presidential Power, 4A Op. O.L.C. at 190. The conference committee report accompanying the WPR made clear that “[s]ubsequent sections of the [Resolution] are not dependent upon the language of” the policy statement. H.R. Rep. No. 93-547, at 8 (1973). Moreover, in a later, operative provision, the Resolution makes clear that nothing in it “is intended to alter the constitutional authority . . . of the President.” 50 U.S.C. § 1547(d). As demonstrated by U.S. military interventions in Somalia, Haiti, Bosnia, and Kosovo, among many other examples, “the President’s power to deploy armed forces into situations of actual or indicated hostilities is not restricted to the three categories specifically marked out by the Resolution.” Proposed Bosnia Deployment, 19 Op. O.LC. at 335; see also Haiti Deployment I, 18 Op. O.L.C. at 176 & n.3. 31 35 Op. O.L.C. 20 (2011) n.10; see also Address to the Nation on Haiti, 30 Weekly Comp. Pres. Doc. 1799 (Sept. 18, 1994); Maureen Taft-Morales & Clare Ribando Seelke, Cong. Research Serv., RL32294, Haiti: Developments and U.S. Policy Since 1991 and Current Congressional Concerns 4 (2008). “In deciding whether prior Congressional authorization for the Haitian deployment was constitutionally necessary,” we observed, “the President was entitled to take into account the anticipated nature, scope, and duration of the planned deployment, and in particular the limited antecedent risk that United States forces would encounter significant armed resistance or suffer or inflict substantial casualties as a result of the deployment.” Haiti Deployment I, 18 Op. O.L.C. at 179. Similarly, a year later we concluded that a proposed deployment of approximately 20,000 ground troops to enforce a peace agreement in Bosnia and Herzegovina also was not a “war,” even though this deployment involved some “risk that the United States [would] incur (and inflict) casualties.” Proposed Bosnia Deployment, 19 Op. O.L.C. at 333. For more than two years preceding this deployment, the United States had undertaken air operations over Bosnia to enforce a UNSC-declared “no-fly zone,” protect United Nations peacekeeping forces, and secure “safe areas” for civilians, including one two-week operation in which NATO attacked hundreds of targets and the United States alone flew over 2300 sorties—all based on the President’s “constitutional authority to conduct the foreign relations of the United States and as Commander in Chief and Chief Executive,” without a declaration of war or other specific prior approval from Congress. Letter to Congressional Leaders Reporting on the Deployment of United States Aircraft to Bosnia-Herzegovina (Sept. 1, 1995), 2 Pub. Papers of Pres. William J. Clinton 1279, 1280 (1995); see also, e.g., Letter to Congressional Leaders on Bosnia, 30 Weekly Comp. Pres. Doc. 2431, 2431 (Nov. 22, 1994); Letter to Congressional Leaders on Bosnia-Herzegovina, 30 Weekly Comp. Pres. Doc. 1699, 1700 (Aug. 22, 1994); Letter to Congressional Leaders on Protection of United Nations Personnel in BosniaHerzegovina, 30 Weekly Comp. Pres. Doc. 793, 793 (Apr. 12, 1994); Letter to Congressional Leaders Reporting on NATO Action in Bosnia, 30 Weekly Comp. Pres. Doc. 406, 406 (Mar. 1, 1994); Letter to Congressional Leaders on the Conflict in the Former Yugoslavia, 30 Weekly Comp. Pres. Doc. 324, 325 (Feb. 17, 1994); Letter to Congressional Leaders Reporting on the No-Fly Zone Over Bosnia, 29 Weekly Comp. 32 Authority to Use Military Force in Libya Pres. Doc. 586, 586 (Apr. 13, 1993); Proposed Bosnia Deployment, 19 Op. O.L.C. at 328–29; Deliberate Force: A Case Study in Effective Air Campaigning 334, 341–44 (Col. Robert C. Owen ed., 2000), http://purl. access.gpo.gov/GPO/LPS20446 (last visited ca. Apr. 2011). This Office acknowledged that “deployment of 20,000 troops on the ground is an essentially different, and more problematic, type of intervention,” than air or naval operations because of the increased risk of United States casualties and the far greater difficulty of withdrawing United States ground forces. But we nonetheless concluded that the anticipated risks were not sufficient to make the deployment a “‘war’ in any sense of the word.” Proposed Bosnia Deployment, 19 Op. O.L.C. at 333–34 (emphasis in original). B. Under the framework of these precedents, the President’s legal authority to direct military force in Libya turns on two questions: first, whether United States operations in Libya would serve sufficiently important national interests to permit the President’s action as Commander in Chief and Chief Executive and pursuant to his authority to conduct U.S. foreign relations; and second, whether the military operations that the President anticipated ordering would be sufficiently extensive in “nature, scope, and duration” to constitute a “war” requiring prior specific congressional approval under the Declaration of War Clause. In prior opinions, this Office has identified a variety of national interests that, alone or in combination, may justify use of military force by the President. In 2004, for example, we found adequate legal authority for the deployment of U.S. forces to Haiti based on national interests in protecting the lives and property of Americans in the country, preserving “regional stability,” and maintaining the credibility of United Nations Security Council mandates. Deployment of United States Armed Forces to Haiti, 28 Op. O.L.C. 30, 32–33 (2004) (“Haiti Deployment II”). In 1995, we similarly concluded that the President’s authority to deploy approximately 20,000 ground troops to Bosnia, for purposes of enforcing a peace agreement ending the civil war there, rested on national interests in completing a “pattern of inter-allied cooperation and assistance” established by prior U.S. participation in NATO air and naval support for peacekeeping efforts, “preserving peace in the region and forestalling the threat of a wider 33 35 Op. O.L.C. 20 (2011) conflict,” and maintaining the credibility of the UNSC. Proposed Bosnia Deployment, 19 Op. O.L.C. at 332–33. And in 1992, we explained the President’s authority to deploy troops in Somalia in terms of national interests in providing security for American civilians and military personnel involved in UNSC-supported humanitarian relief efforts and (once again) enforcing UNSC mandates. Military Forces in Somalia, 16 Op. O.L.C. at 10–12. 2 In our view, the combination of at least two national interests that the President reasonably determined were at stake here—preserving regional stability and supporting the UNSC’s credibility and effectiveness— provided a sufficient basis for the President’s exercise of his constitutional authority to order the use of military force. 3 First, the United States has a strong national security and foreign policy interest in security and stability in the Middle East that was threatened by Qadhafi’s actions in Libya. As noted, we recognized similar regional stability interests as justifications for presidential military actions in Haiti and Bosnia. With respect to Haiti, we found “an obvious interest in maintaining peace and stability,” “[g]iven the proximity of Haiti to the United States,” and particularly considering that “past instances of unrest in Haiti have led to the mass emigration of refugees attempting to reach the United States.” Haiti Deployment II, 28 Op. O.L.C. at 32–33. In the case of Bosnia, we noted (quoting prior statements by President Clinton justifying military action) the longstanding commitment of the United States to the “‘principle that the security and stability of Europe is of fundamental interest to the United States,’” and we identified, as justification for the military action, the 2 As these examples make clear, defense of the United States to repel a direct and immediate military attack is by no means the only basis on which the President may use military force without congressional authorization. Accordingly, the absence of an immediate self-defense interest does not mean that the President lacked authority for the military operations in Libya. 3 Although President Obama has expressed opposition to Qadhafi’s continued leadership of Libya, we understand that regime change is not an objective of the coalition’s military operations. See March 28, 2011 Address (“Of course, there is no question that Libya—and the world—would be better off with Qaddafi out of power. I . . . will actively pursue [that goal] through non-military means. But broadening our military mission to include regime change would be a mistake.”). We therefore do not consider any national interests relating to regime change in assessing the President’s legal authority to order military operations in Libya. 34 Authority to Use Military Force in Libya President’s determination that “[i]f the war in the former Yugoslavia resumes, ‘there is a very real risk that it could spread beyond Bosnia, and involve Europe’s new democracies as well as our NATO allies.’” Proposed Bosnia Deployment, 19 Op. O.L.C. at 333. In addition, in another important precedent, President Clinton justified extensive airstrikes in the Federal Republic of Yugoslavia (“FRY”) in 1999—military action later ratified by Congress but initially conducted without specific authorization, see Authorization for Continuing Hostilities in Kosovo, 24 Op. O.L.C. 327 (2000)—based on concerns about the threat to regional security created by that government’s repressive treatment of the ethnic Albanian population in Kosovo. “The FRY government’s violence,” President Clinton explained, “creates a conflict with no natural boundaries, pushing refugees across borders and potentially drawing in neighboring countries. The Kosovo region is a tinderbox that could ignite a wider European war with dangerous consequences to the United States.” Letter to Congressional Leaders Reporting on Airstrikes Against Serbian Targets in the Federal Republic of Yugoslavia ( Serbia and Montenegro), 35 Weekly Comp. Pres. Doc. 527, 527 (Mar. 26, 1999). As his statements make clear, President Obama determined in this case that the Libyan government’s actions posed similar risks to regional peace and security. Much as violence in Bosnia and Kosovo in the 1990s risked creating large refugee movements, destabilizing neighboring countries, and inviting wider conflict, here the Libyan government’s “illegitimate use of force . . . [was] forcing many [civilians] to flee to neighboring countries, thereby destabilizing the peace and security of the region.” March 21, 2011 Report to Congress. “Left unaddressed,” the President noted in his report to Congress, “the growing instability in Libya could ignite wider instability in the Middle East, with dangerous consequences to the national security interests of the United States.” Id. Without outside intervention, Libya’s civilian population faced a “humanitarian catastrophe,” id.; as the President put it on another occasion, “innocent people” in Libya were “being brutalized” and Qadhafi “threaten[ed] a bloodbath that could destabilize an entire region.” Press Release, Office of the Press Secretary, The White House, Weekly Address: President Obama Says the Mission in Libya is Succeeding (Mar. 26, 2011), http://www.whitehouse.gov/the-press-office/2011/03/26/weekly-addresspresident-obama-says-mission-libya-succeeding (last visited ca. Apr. 2011). The risk of regional destabilization in this case was also recognized by the 35 35 Op. O.L.C. 20 (2011) UNSC, which determined in Resolution 1973 that the “situation” in Libya “constitute[d] a threat to international peace and security.” S.C. Res. 1973. As this Office has previously observed, “[t]he President is entitled to rely on” such UNSC findings “in making his determination that the interests of the United States justify providing the military assistance that [the UNSC resolution] calls for.” Military Forces in Somalia, 16 Op. O.L.C. at 12. 4 Qadhafi’s actions not only endangered regional stability by increasing refugee flows and creating a humanitarian crisis, but, if unchecked, also could have encouraged the repression of other democratic uprisings that were part of a larger movement in the Middle East, thereby further undermining United States foreign policy goals in the region. Against the background of widespread popular unrest in the region, events in Libya formed “just one more chapter in the change that is unfolding across the Middle East and North Africa.” March 18, 2011 Remarks. Qadhafi’s campaign of violence against his own country’s citizens thus might have set an example for others in the region, causing “[t]he democratic impulses that are dawning across the region [to] be eclipsed by the darkest form of dictatorship, as repressive leaders concluded that violence is the best strategy to cling to power.” March 28, 2011 Address. At a minimum, a massacre in Libya could have imperiled transitions to democratic government underway in neighboring Egypt and Tunisia by driving “thousands of additional refugees across Libya’s borders.” Id. Based on these factors, we believe the President could reasonably find a significant national security interest in preventing Libyan instability from spreading elsewhere in this critical region. The second important national interest implicated here, which reinforces the first, is the longstanding U.S. commitment to maintaining the credibility of the United Nations Security Council and the effectiveness of its actions to promote international peace and security. Since at least the Korean War, the United States government has recognized that “‘[t]he continued existence of the United Nations as an effective interna4 We note, however, that, at least for purposes of domestic law, a Security Council resolution is “not required as a precondition for Presidential action.” Military Forces in Somalia, 16 Op. O.L.C. at 7. Rather, as we explained in 2004, “in exercising his authority as Commander in Chief and Chief Executive, the President [may] choose to take” the UNSC resolution into account “in evaluating the foreign policy and national security interests of the United States that are at stake.” Haiti Deployment II, 28 Op. O.L.C. at 33. 36 Authority to Use Military Force in Libya tional organization is a paramount United States interest.’” Military Forces in Somalia, 16 Op. O.L.C. at 11 (quoting Authority of the President to Repel the Attack in Korea, 23 Dep’t of State Bull. 173, 177 (1950)). Accordingly, although of course the President is not required to direct the use of military force simply because the UNSC has authorized it, this Office has recognized that “‘maintaining the credibility of United Nations Security Council decisions, protecting the security of United Nations and related relief efforts, and ensuring the effectiveness of United Nations peacekeeping operations can be considered a vital national interest’” on which the President may rely in determining that U.S. interests justify the use of military force. Proposed Bosnia Deployment, 19 Op. O.L.C. at 333 (quoting Military Forces in Somalia, 16 Op. O.L.C. at 11). Here, the UNSC’s credibility and effectiveness as an instrument of global peace and stability were at stake in Libya once the UNSC took action to impose a no-fly zone and ensure the safety of civilians— particularly after Qadhafi’s forces ignored the UNSC’s call for a cease fire and for the cessation of attacks on civilians. As President Obama noted, without military action to stop Qadhafi’s repression, “[t]he writ of the United Nations Security Council would have been shown to be little more than empty words, crippling that institution’s future credibility to uphold global peace and security.” March 28, 2011 Address; see also March 21, 2011 Report to Congress (“Qadhafi’s defiance of the Arab League, as well as the broader international community . . . represents a lawless challenge to the authority of the Security Council and its efforts to preserve stability in the region.”). We think the President could legitimately find that military action by the United States to assist the international coalition in giving effect to UNSC Resolution 1973 was needed to secure “a substantial national foreign policy objective.” Military Forces in Somalia, 16 Op. O.L.C. at 12. We conclude, therefore, that the use of military force in Libya was supported by sufficiently important national interests to fall within the President’s constitutional power. At the same time, turning to the second element of the analysis, we do not believe that anticipated United States operations in Libya amounted to a “war” in the constitutional sense necessitating congressional approval under the Declaration of War Clause. This inquiry, as noted, is highly fact-specific and turns on no single factor. See Proposed Bosnia Deployment, 19 Op. O.L.C. at 334 (reaching conclusion 37 35 Op. O.L.C. 20 (2011) based on specific “circumstances”); Haiti Deployment I, 18 Op. O.L.C. at 178 (same). Here, considering all the relevant circumstances, we believe applicable historical precedents demonstrate that the limited military operations the President anticipated directing were not a “war” for constitutional purposes. As in the case of the no-fly zone patrols and periodic airstrikes in Bosnia before the deployment of ground troops in 1995 and the NATO bombing campaign in connection with the Kosovo conflict in 1999—two military campaigns initiated without a prior declaration of war or other specific congressional authorization—President Obama determined that the use of force in Libya by the United States would be limited to airstrikes and associated support missions; the President made clear that “[t]he United States is not going to deploy ground troops in Libya.” March 18, 2011 Remarks. The planned operations thus avoided the difficulties of withdrawal and risks of escalation that may attend commitment of ground forces—two factors that this Office has identified as “arguably” indicating “a greater need for approval [from Congress] at the outset,” to avoid creating a situation in which “Congress may be confronted with circumstances in which the exercise of its power to declare war is effectively foreclosed.” Proposed Bosnia Deployment, 19 Op. O.L.C. at 333. Furthermore, also as in prior operations conducted without a declaration of war or other specific authorizing legislation, the anticipated operations here served a “limited mission” and did not “aim at the conquest or occupation of territory.” Id. at 332. President Obama directed United States forces to “conduct[] a limited and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster”; American airstrikes accordingly were to be “limited in their nature, duration, and scope.” March 21, 2011 Report to Congress. As the President explained, “we are not going to use force to go beyond [this] welldefined goal.” March 18, 2011 Remarks. And although it might not be true here that “the risk of sustained military conflict was negligible,” the anticipated operations also did not involve a “preparatory bombardment” in anticipation of a ground invasion—a form of military operation we distinguished from the deployment (without preparatory bombing) of 20,000 U.S. troops to Haiti in concluding that the latter operation did not require advance congressional approval. Haiti Deployment I, 18 Op. O.L.C. at 176, 179. Considering the historical practice of even intensive 38 Authority to Use Military Force in Libya military action—such as the 17-day-long 1995 campaign of NATO airstrikes in Bosnia and some two months of bombing in Yugoslavia in 1999—without specific prior congressional approval, as well as the limited means, objectives, and intended duration of the anticipated operations in Libya, we do not think the “anticipated nature, scope, and duration” of the use of force by the United States in Libya rose to the level of a “war” in the constitutional sense, requiring the President to seek a declaration of war or other prior authorization from Congress. Accordingly, we conclude that President Obama could rely on his constitutional power to safeguard the national interest by directing the anticipated military operations in Libya—which were limited in their nature, scope, and duration—without prior congressional authorization. CAROLINE D. KRASS Principal Deputy Assistant Attorney General Office of Legal Counsel 39

Write a legal research memo on the following topic.

Inter-Departmental Disclosure of Information Submitted Under the Shipping Act of 1984 The Federal M aritim e Commission is not prohibited by § 6(j) of the Shipping Act of 1984 (Act) from disclosing to other Executive Branch departm ents or agencies information concerning carriage agreem ents filed pursuant to the Act, although the Act does prohibit disclosure of such inform ation to the public. Section 6(j) o f the Act is patterned a fte r § 7A(h) of the Clayton Act, and the legislative history of the latter provision provides some indication that it might prohibit inter-departmental disclo­ sure o f prem erger information obtained by the Justice Department under the Hart-ScottR odino Act. Nonetheless, in the absence o f evidence o f legislative intent specifically to prohibit non-public disclosure o f Shipping Act information, it should not be inferred that C ongress intended to override th e general presum ption that information obtained by one federal governm ent agency may be freely shared among federal government agencies. February 8, 1985 M em o ran d um O p in io n Federal M for th e a r it im e G eneral Counsel, C o m m is s io n This responds to your inquiry whether § 6(j) of the Shipping Act of 1984 (Act), 46 U.S.C. app. § 1705(j), prohibits disclosure by the Federal Maritime Commission (Commission) of information and documentary material filed with the Commission under §§ 5 or 6 of the Act to other federal agencies or Executive Branch departments. Your request for an interpretation of § 6(j) arises in the context of certain international water carriage agreements filed or to be filed with the Commission that involve shipping routes with countries that have entered into bilateral agreements with the United States. The Commission may wish to disclose the information filed with those agreements to the Departments of State and Transportation when the bilateral agreements are renegotiated. Assuming that § 6(j) does not create an absolute prohibition against disclosure, your letter also inquires whether § 6(j) prohibits the Com­ mission from disclosing such information to other federal agencies or Execu­ tive Branch departments where there is a showing that the information is necessary for the development of United States foreign policy objectives with respect to international shipping. In this memorandum, we consider the language and legislative history of § 6(j). We also consider § 7A of the Clayton Act, 15 U.S.C. § 18a, upon which the Shipping Act is expressly modeled. For the reasons discussed below, we do 48 not believe § 6(j) prohibits disclosure of Shipping Act information to other federal government agencies in general or, in particular, disclosure in further­ ance of the development of the Executive’s foreign policy objectives in inter­ national shipping. I. Section 6(j) of the Shipping Act of 1984 The Shipping Act of 1984 authorizes the Commission to receive for filing certain agreements that, if not declared unlawful by the Commission or the courts, are exempt from the antitrust laws. 46 U.S.C. app. §§ 1703-1706. The Act also authorizes the Commission to describe the form and manner in which an agreement is to be filed and, under § 6(d), to require the submission of such information and documents as may be necessary to evaluate the agreement under the substantive standard set forth in § 6(g).146 U.S.C. app. §§ 1704-1705. Section 6(j) of the Act provides: Nondisclosure o f submitted material Except for an agreement filed under [§ 5], information and documentary material filed with the Commission under [§ 5] is exempt from disclosure under section 552 of Title 5 [the Free­ dom of Information Act] and may not be made public except as may be relevant to an administrative or judicial action or pro­ ceeding. This section does not prevent disclosure to either body of Congress or to a duly authorized committee or subcommittee of Congress. The Commission has promulgated regulations to implement the Act. See 49 Fed. Reg. 22296 (1984); 49 Fed. Reg. 24697 (1984) (codified at 46 C.F.R. Part 572). The regulations also provide for the confidential treatment of submitted material: (a) Except for an agreement filed under section 5 of the Act, all information submitted to the Commission by the filing party will be exempt from disclosure under 5 U.S.C. 552. Included in this disclosure exemption is information provided in the Infor­ mation Form, voluntary submissions of additional information, reasons for noncompliance, and replies to requests for addi­ tional information. 1Section 6(g) provides: Substantially anticom petitive agreem ents If, at any tim e after the filing or effective date o f an agreem ent, the Commission determ ines that the agreem ent is likely, by a reduction in com petition, to produce an unreasonable reduction in transportation service o r an unreasonable increase in transportation cost, it may, after notice to the person filing the agreem ent, seek appropriate injunctive relief under subsection (h) of this section. 46 U.S.C. app. § 1705(g). 49 (b) Information which is confidential pursuant to paragraph (a) of this section may be disclosed, however, to the extent: (1) It is relevant to an administrative or judicial action or proceeding; or (2) It is in response to a request from either body of Congress or to a duly authorized committee or subcommittee of Congress. 46 C.F.R. § 572.608.2 On its face, § 6(j) merely prohibits public disclosure of information and materials filed with agreements under the Act.3 Because the Commission proposes to disclose Shipping Act information to other federal government agencies, the relevant question here is whether § 6(j) also prohibits non-public disclosure of such information. The legislative history of the Act is not helpful in answering this question. The report of the Senate and House conferees on S. 47, the bill which became the Shipping Act, merely states that “subsection (j) provides for confidential treatment of any information submitted under this section.” H.R. Conf. Rep. No. 600, 98th Cong., 2d Sess. 30 (1984), reprinted in 1984 U.S.C.C.A.N. 283, 286. The House Report to accompany H.R. 1878, which was not enacted, explains that the provision for confidential treatment in that bill grants an exemption under the Freedom of Information Act for all information and documentary materials, other than the agreement itself, that have been submit­ ted to the Commission pursuant to §§ 4 and 5. H.R. Rep. No. 53 (II), 98th Cong., 1st Sess. 31 (1983), reprinted in 1984 U.S.C.C.A.N. 167, 251. The original bill, S. 47, contained no comparable section providing for confidential treatment of submitted materials. No Senate Report was submitted with this legislation. The legislative history otherwise appears to be silent with regard to the confidentiality provision. Thus, nothing in the language or the legislative history of § 6(j) expressly prohibits the type of non-public disclosure contemplated here of confidential information submitted under the Shipping Act. 2 T he Federal R egister contains supplem entary inform ation explaining the Shipping Act regulations. The d escrip tio n o f S ubpart F o f the Rules, covering A ction on A greem ents, states that § 6 “preserves the co n fid en tiality o f inform ation submitted w ith agreem ents.” 4 9 Fed. Reg. at 22302. It further states, in referen ce to 4 6 C .F.R . § 572.608, that “ [sjectio n 6(j) o f the A ct provides that all inform ation subm itted by a filing p arty o th er than the agreement itself shall be exem pt from disclosure under the Freedom o f Inform ation A ct [5 U .S.C . § 552]. This section of the ru les im plem ents the A ct’s confidentiality provision ” 49 Fed. Reg. at 22303. 3 Section 6 (j) o f the A ct qualifies as an exem ption (b)(3) statute under the Freedom o f Inform ation Act (F O IA ), 5 U .S.C. § 552(b)(3). FOIA “d o es not apply to m atters that are specifically exem pted from disclo­ sure by statute . . . provided that such statute (A) requires that th e matters are withheld from the public in such a m anner as to leave no discretion on the issue, or (B ) establishes particular criteria for w ithholding or refers to p articu lar types o f m atters to be w ithheld.” Id. The O ffice o f Legal Policy, O ffice o f Information and Privacy, does not interpret exemption (b)(3) statutes, in general, to prohibit inter-agency disclosures o f inform ation. 50 II. Section 7 A of the Clayton Act, 15 U.S.C. § 18a The agreement review procedure established under § 6 of the Shipping Act is modeled expressly on the procedures governing premerger clearance of proposed acquisitions and mergers under § 7A of the Clayton Act, as added by the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act). See H.R. Conf. Rep. No. 600, at 30, reprinted in 1984 U.S.C.C.A.N. at 286; see also 49 Fed. Reg. at 22301. Section 7A(h) of the Clayton Act provides for confidential treatment o f premerger information relevant to a proposed acquisi­ tion submitted for approval to the Federal Trade Commission. The relevant language of § 7A(h) is identical to § 6(j) of the Shipping Act. The legislative history of the HSR Act concerning premerger information provides little more elucidation on the scope of the prohibition against public disclosure than the legislative history of § 6(j) of the Shipping Act. The House Report to accompany H.R. 14580, Title II of the HSR Act, merely states that “premerger information submitted under this section is confidential, and may not be disclosed, except in judicial or administrative proceedings.” H.R. Rep. No. 1373,94th Cong., 2d Sess. 6 (1976), reprinted in 1976 U.S.C.C.A.N. 2572, 2638. However, Chairman Rodino’s remarks comparing the confidentiality provision in Title II of the HSR Act to a confidentiality provision in Title I of that Act shed some light on the meaning of the provision in Title I. Title I amended the Antitrust Civil Process Act of 1962 by broadening the availability of civil investigative demands (CID) to investigate antitrust viola­ tions, see generally H.R. Rep. No. 1343, 94th Cong., 2d Sess. 1—4 (1976), reprinted in 1976 U.S.C.C.A.N. 2596, 2596-98, but retained the prohibition that no information produced in response to a CID “shall be available for examination, without the consent of the person who produced such [information] . . . by any individual other than a duly authorized official, employee, or agent of the Department of Justice.” 15 U.S.C. § 1313(c)(3). Title I also provided that information produced in response to a CID is exempt from disclosure under the Freedom of Information Act. Id. § 1314(g). Against this background, Chairman Rodino explained: The House applied the sam e two confidentiality safeguards to prem erger data that both the House and Senate bills applied to CID file s com piled pursuant to title I of the compromise bill. These two safeguards provide that, first, the premerger data is exempt from the Freedom of Information Act, so that the Gov­ ernment cannot be forced to disclose it to the public, and second, the Government agencies them selves cannot discretionarily re­ lease prem erger data to anyone , but can disclose it only in “judicial or administrative proceedings.” In contrast, the Senate bill made the premerger data “subject” to the Freedom of Infor­ mation Act not exempt from it. The compromise bill adopts the House provisions because premerger data compiled pursuant to 51 title II of the compromise bill will, in essence, contain the same kind o f information as a CID file compiled in a premerger investigation pursuant to title I of the compromise bill. The House conferees see no reason why this data should be exempt from the Freedom of Information Act in the one case, and subject to the Act in the other. 122 Cong. Rec. 30877 (1976) (emphasis added). We acknowledge that this statement by Chairman Rodino, one of the spon­ sors o f the legislation, may support the argument that the confidentiality provision in Title II, § 7A(h) o f the Clayton Act, when read in conjunction with the comparable provision in Title I, prohibits disclosure of premerger informa­ tion to anyone outside the Department o f Justice. Indeed, based upon this reading of the legislative history, the Department’s Antitrust Division has interpreted § 7A(h) of the Clayton Act to prohibit even non-public disclosure o f premerger information except within the Department.4 The Antitrust Division’s interpretation as applied to disclosure to state officials was recently upheld in a case involving requests by state attorneys general for premerger information submitted by private companies under the HSR Act. M attox v. FTC, 752 F.2d 116 (5th Cir. 1985). The court determined that disclosure to state law enforcement agencies is a “public” disclosure within the meaning of § 7A(h). Relying on the legislative history of the HSR Act discussed above and the plain language o f the statute, the court concluded that disclosure o f premerger information obtained under the HSR Act is strictly prohibited except as provided by § 7A(h), regardless of any assurance of confidentiality.5 Although the court did not expressly consider whether § 7A(h) also prohibits inter-agency transfers of premerger information obtained under the HSR Act, such a result may be implicit in its holding. W e do not view the Fifth C ircuit’s interpretation o f § 7A(h) of the Clayton Act to preclude a different interpretation of § 6(j) of the Shipping Act, how­ ever. Nor do we view the m ere fact that § 6(j) is modeled on § 7A(h) as dispositive o f the scope of the prohibition in § 6(j), at least insofar as that prohibition relates to disclosure of information among federal agencies. Rather, without more definitive evidence of a legislative intent to prohibit non-public disclosure of Shipping Act information specifically, we would not infer a legislative intent to overturn the general presumption that information obtained 4 See A n titru st D ivision M anual (V II-15). In keeping w ith its narrow reading o f this section, the A ntitrust D ivision also has interpreted § 7A(h) to lim it disclosure o f prem erger information in adm inistrative or ju d ic ia l proceedings to those proceedings to which eith er the A ntitrust Division or the Federal Trade C om m ission is a party. Even in those instances, disclosure rem ains discretionary. See A ntitrust Division M anual (III-21). 5 T he State o f T exas had argued, inter a lia , that § 7A(h) should be construed in light o f § 6(f) o f the FTC A ct, 15 U .S.C . § 46(f), w hich authorizes the FTC to release, at its discretion, com m ercial or Financial inform ation, including prem erger inform ation obtained under the FTC A ct, to federal or state law enforce­ m ent agencies upon prior certification “ th at such inform ation will be m aintained in confidence and w ill be used o n ly fo r official law enforcement purposes." In another case, the district court found this argum ent persuasive and rejected the Antitrust D iv isio n 's interpretation o f § 7A(h) o f the C layton Act. See Lieberm an v. F T C , 598 F. Supp. 669 (D. Conn. 1984). 52 by one federal government agency is to be freely shared among federal govern­ ment agencies.6 It is axiomatic that all information and documents in the possession of Executive Branch agencies are within the control of the President as the head of the Executive Branch. Just as the President exercises supervisory control over the execution of the laws by his subordinates, U.S. Const, art. II, § 3, the President ensures that information within the Executive Branch is protected from disclosure that would, in his judgment, adversely affect the public inter­ est. See Memorandum to Heads of Executive Branch Departments and Agen­ cies from President Reagan (Nov. 4, 1982). We believe it follows from these general constitutional principles that a decision by Congress to restrict the flow of information among federal agen­ cies when such information relates to the performance of the official duties of these agencies must be executed by legislation that leaves no doubt as to Congress’ intent. Particularly regarding the development by the President of his foreign policy, it would be untenable to read into the statute at issue here an implied intent to deny to those subordinates of the President charged with the formulation of foreign policy those documents and information deemed rel­ evant to that formulation. We would add that the President’s authority to control the flow of informa­ tion within and without the Executive Branch carries with it the power to limit distribution o f such information within the Executive Branch. Thus, unless and until revised by higher authority, we have no doubt about the validity and enforceability of the present policy of the Antitrust Division of this Department to refuse to transmit certain information gathered by it beyond this Department. We believe the Commission is free, as a matter of law, to adopt a policy of providing the information at issue here to other federal departments and agen­ cies that have a need for it in connection with carrying out their official responsibilities. Conclusion Section 6(j) of the Shipping Act prohibits only “public” disclosure of infor­ mation obtained under that Act. Interpreting the language of that statute and its 6 W e also have considered w hether the Privacy Act, 5 U S.C § 552a, prohibits disclosure o f Shipping Act inform ation to other federal governm ent agencies. That act governs the circum stances under which inform a­ tion contained in records m aintained on individuals may be disclosed to the public or to other governm ent agencies. The Privacy Act defines the term “individual” as “a citizen o f the U nited States o r an alien law fully adm itted for perm anent residence.” Id. § 552a(a)(2). The Act defines the term “record” as any item, collection, or grouping o f inform ation about an individual that is m aintained by an agency, including, but not lim ited to, his education, financial transactions, medical history, and crim inal o r em ploym ent history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as finger or voice print o r a photo­ graph. Id. § 552a(a)(4) (em phasis added) Your O ffice has informed us that com panies or conferences o f com panies, and not individuals, file inform ation and docum entary material under the Shipping Act. Therefore, such m aterial would not qualify as a “ record” covered by the Privacy Act and the Privacy Act would not independently prohibit disclosure o f inform ation filed under §§ 5 o r 6 o f the Shipping Act. 53 sparse legislative history in light of the President’s constitutional responsibili­ ties regarding the control of information within the Executive Branch, we have no difficulty concluding that information and documentary material filed with the Commission under §§ 5 or 6 of the Shipping Act may be disclosed to other federal agencies or Executive Branch departments without violating § 6(j). L a r r y L . S im m s D eputy Assistant Attorney General Office o f Legal Counsel 54

Write a legal research memo on the following topic.

Department of Defense Response to Interlocutory Decision of Court of Appeals Regarding Statute Requiring Separation of Homosexual Service Members from Military Following the interlocutory decision of a court of appeals regarding the statute requiring the separation of certain gay and lesbian service members from the military, the Department of Defense is not legally required to revise its administrative procedures and policies in a manner that might preclude separations within the circuit that would otherwise be mandated by the statute. The Department of Defense is also not legally prohibited from acquiescing in the decision, although such a policy would appear to lack direct Executive Branch precedent and arguably would be in some tension with the Executive Branch’s usual practice of implementing and defending statutes that are subject to constitutional challenge. March 25, 2010 MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF DEFENSE You have asked for our views regarding the Department of Defense’s implementation of 10 U.S.C. § 654 —the statute establishing the government’s policy with respect to the separation of gay and lesbian service members from the military—in the wake of the U.S. Court of Appeals for the Ninth Circuit’s decision in Witt v. Department of the Air Force, 527 F.3d 806 (2008). In particular, you have asked whether Witt requires the Department of Defense (“DoD” or the “Department”) to revise its administrative procedures and policies governing the application of section 654 “within the Ninth Circuit” 1 so long as that decision remains binding circuit law. You have also asked whether, even if Witt does not require this result, the Department may acquiesce in the Witt ruling by revising those procedures and policies in a manner that might preclude separations within the Ninth Circuit that would otherwise be mandated by section 654. Our view is that DoD is neither legally required to acquiesce in Witt in such a manner nor legally prohibited from doing so. 2 We caution, 1 Our references in this memorandum to cases “within” the Ninth Circuit are meant to encompass cases in which service members could challenge their separation in federal district courts bound to apply Ninth Circuit precedent. 2 We note that 28 U.S.C. § 530D requires executive agencies to submit a report to Congress when, among other things, they establish or implement a policy to refrain (i) 100 Department of Defense Response to Interlocutory Decision of Court of Appeals however, that such a policy of acquiescence would appear to lack direct Executive Branch precedent and arguably would be in some tension with the Executive Branch’s usual practice of implementing and defending statutes that are subject to constitutional challenge. Moreover, to ensure the legal permissibility of any particular policy of acquiescence implemented by DoD, it would be necessary for us to review the precise details of that policy. I. In Witt, the Ninth Circuit reversed a federal district court’s dismissal of a constitutional challenge to section 654 brought by Major Margaret Witt, an Air Force officer who was about to be discharged for violating the statute. Section 654 provides in subsection (a) that “[t]he presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.” 10 U.S.C. § 654(a)(15) (2006). Subsection (b) then provides that “[a] member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations.” Id. § 654(b) (emphasis added). The referenced findings are: (1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that— (A) such conduct is a departure from the member’s usual and customary behavior; “from enforcing, applying, or administering” a statutory provision “on the grounds that such provision is unconstitutional” and (ii) “within any judicial jurisdiction,” “from adhering to, enforcing, applying, or complying with[] any standing rule of decision” of a federal court of, or superior to, that jurisdiction “respecting the interpretation, construction, or application of the Constitution.” 28 U.S.C. § 530D(a)(1)(A)(i), (ii), (e) (2006). We would be happy to assist you in determining whether any particular policy that you might establish regarding section 654 would require a report under these provisions. 101 34 Op. O.L.C. 100 (2010) (B) such conduct, under all the circumstances, is unlikely to recur; (C) such conduct was not accomplished by use of force, coercion, or intimidation; (D) under the particular circumstances of the case, the member’s continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and (E) the member does not have a propensity or intent to engage in homosexual acts. (2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in the regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. (3) That the member has married or attempted to marry a person known to be of the same biological sex. Id. Acting in accord with DoD procedures promulgated pursuant to section 654(b), the Air Force initiated formal separation proceedings against Major Witt in 2004, resulting in her suspension. In 2006, a military review board found that Major Witt had engaged in homosexual acts and had stated that she was a homosexual in violation of section 654. See Witt, 527 F.3d at 810. The board therefore recommended that she be honorably discharged from the Air Force Reserve, and in 2007 the separation authority, the Secretary of the Air Force, ordered that she receive such a discharge. See id. Major Witt then challenged her suspension and prospective discharge in federal district court on federal constitutional grounds. The district court rejected Major Witt’s claim that section 654 violated her rights under the substantive component of the Due Process Clause of the Fifth Amendment after evaluating that claim under a rational basis standard of review. Witt v. Dep’t of the Air Force, 444 F. Supp. 2d 1138 (W.D. Wash. 2006). Major Witt then appealed to the Ninth Circuit, which vacated and remanded the district court’s substantive due process ruling 102 Department of Defense Response to Interlocutory Decision of Court of Appeals for further proceedings. Witt, 527 F.3d at 809. 3 In its decision, the Ninth Circuit deemed rational basis review inapt in light of the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003), and held instead that “when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest.” Witt, 527 F.3d at 819. The court also held that “this heightened scrutiny analysis is as-applied rather than facial,” and thus requires a court to “determine not whether [section 654] has some hypothetical, post hoc rationalization in general, but whether a justification exists for the application of the policy as applied to Major Witt.” Id. Applying a three-part heightened scrutiny test, the Witt court observed that the government had advanced “an important governmental interest”— namely, “the management of the military”—to which courts owed deference, but concluded that it was unclear “whether [section 654], as applied to Major Witt, satisfies the second and third factors” of the test. Id. at 821. In particular, the court noted that the Air Force’s reliance on congressional findings regarding “‘unit cohesion’ and the like” did “not go to whether the application of [section 654] specifically to Major Witt significantly furthers the government’s interest and whether less intrusive means would achieve substantially the government’s interest.” 4 Id. Accordingly, the court remanded the case “for the district court to develop the record on Major Witt’s substantive due process claim,” at which point it could be determined whether her separation under section 654, “measured against The Ninth Circuit also vacated and remanded the district court’s dismissal of Major Witt’s procedural due process claim and affirmed the district court’s dismissal of her equal protection claim. 527 F.3d at 812–13, 821–22. Those claims are not relevant to the subject of your request, and we do not discuss them further. 4 In a footnote, the court briefly touched on whether the government would be able to satisfy the second and third factors of the heightened scrutiny test, noting Major Witt’s allegations that she “was a model officer whose sexual activities hundreds of miles away from base did not affect her unit until the military initiated discharge proceedings under [section 654] and [that], even then, it was her suspension pursuant to [section 654], not her homosexuality, that damaged unit cohesion.” Witt, 527 F.3d at 821 n.11. 3 103 34 Op. O.L.C. 100 (2010) the appropriate constitutional standard,” was permissible. Id. The court did not order the United States to take any action. Subsequent to its order, the Ninth Circuit denied the government’s petition for rehearing en banc, Witt v. Dep’t of the Air Force, 548 F.3d 1264 (2008), and the Solicitor General then declined to seek Supreme Court review of the panel decision. In a letter to Speaker of the House Nancy Pelosi submitted under section 530D of title 28, U.S. Code, the Attorney General explained the decision not to seek review as based on “the longstanding presumption against Supreme Court review of interlocutory decisions as well as practical litigation considerations.” Letter for Nancy Pelosi, Speaker, U.S. House of Representatives, from Eric H. Holder, Jr., Attorney General, Re: Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008) (Apr. 22, 2009) (“530D Letter”). Among the “practical considerations” the Attorney General identified in his letter were the desirability of “develop[ing] . . . the factual record on remand” to ensure “a more complete basis” for ultimate Supreme Court review. The letter also noted that DoD’s views with respect to seeking immediate Supreme Court review were consistent with those expressed in the letter and that, in particular, DoD had identified similar practical considerations that counseled against seeking such review. Finally, the Attorney General noted that “[t]he government retains all rights to petition the Supreme Court to review a final decision in the case, including every aspect of the Ninth Circuit’s ruling, after proceedings on remand are completed.” At present, the case is pending before the district court on remand. II. The first question we must address is whether, for as long as the Witt court’s due process framework remains the governing law of the Ninth Circuit, DoD is required to apply that framework in implementing section 654 in cases within the Ninth Circuit. The argument that such “intracircuit acquiescence” is required is rooted in a claim about the separation of powers. One of the leading precedents for such an argument is Lopez v. Heckler, 725 F.2d 1489, 1497 & n.5 (9th Cir. 1984), vacated on other grounds and remanded, 469 U.S. 1082 (1984). In that case, the Ninth Circuit stated that the refusal of the Social Security Administration (“SSA”) to give effect to prior circuit precedent interpreting the statutory 104 Department of Defense Response to Interlocutory Decision of Court of Appeals procedures governing the termination of social security benefits “undermine[s] what are perhaps the fundamental precepts of our constitutional system—the separation of powers and respect for the law.” 725 F.2d at 1497; see also id. at 1502 n.10 (“with regard to recipients whose benefits were terminated after [the governing court of appeals decisions] became final the Secretary also violated her constitutional duty to execute the law faithfully”); id. at 1503 (“That the Secretary, as a member of the executive, is required to apply federal law as interpreted by the federal courts cannot seriously be doubted.”); Johnson v. U.S. R.R. Ret. Bd., 969 F.2d 1082, 1091–92 (D.C. Cir. 1992) (citing cases “condemn[ing]” intracircuit nonacquiescence). The Ninth Circuit, however, has not been entirely consistent on this issue, stating in a pre-Lopez case (one that Lopez did not address) that the Immigration and Naturalization Service (“INS”) “could refuse to” acquiesce in a decision of the U.S. Court of Appeals for the Second Circuit—Lok v. INS, 548 F.2d 37 (2d Cir. 1977)—“in the Second Circuit and thereby achieve consistency of application,” while noting that “to do so would only invite appeal and reversal.” Castillo-Felix v. INS, 601 F.2d 459, 467 (9th Cir. 1979). In our view, DoD is not required to acquiesce in the Witt decision, notwithstanding that Witt will govern any litigation in the Ninth Circuit unless and until that decision is vacated or reversed. As explained below, this conclusion accords with the longstanding position of this Office, and the consistent, publicly declared position of the Executive Branch, that an executive agency may “nonacquiesce” in a court of appeals ruling—a practice whereby the agency, despite an adverse court of appeals decision, continues to act in accordance with its own contrary interpretation of the law with respect to persons who were not parties to the judgment. The Executive Branch’s traditional view that nonacquiescence is permissible includes even “intracircuit” nonacquiescence, or nonacquiescence in situations where the adversely affected persons could challenge the administrative decision in a case that would be governed by the law established by the relevant adverse court of appeals decision. 5 Accordingly, we 5 See, e.g., Federal Agency Compliance Act: Hearing on H.R. 1544 Before the Subcomm. on Commercial and Administrative Law of the H. Comm. on the Judiciary, 105th Cong. 43 (1997) (statement of Stephen W. Preston, Deputy Assistant Attorney General, Civil Division) (“Preston Testimony”); see generally Samuel Estreicher & Richard L. 105 34 Op. O.L.C. 100 (2010) do not believe that DoD must modify its procedures and policies in order to ensure that section 654 separations of individuals who are within the Ninth Circuit, but who are not parties to the Witt judgment, satisfy the heightened standard of review that Witt at present requires judges in the Ninth Circuit to apply in reviewing such separations. A. In the usual case of intracircuit acquiescence, the circuit court decision at issue concerns the proper interpretation of a federal statute, and the agency acquiesces even though it may remain of the view that its own contrary interpretation of the statute is correct and even though it may fully intend to continue pressing that interpretation in future cases. As a matter of federal practice, executive agencies generally do engage in intracircuit acquiescence in such cases, even when they continue to challenge the adverse precedent in other circuits or await a test case for reconsideration in the circuit of decision. See Preston Testimony, supra note 5, at 43. Such intracircuit acquiescence often serves interests in comity and sound policy. With respect to the latter, the practice can ensure that private persons are not deprived of the benefits of a court of appeals precedent that would protect them “if they have the fortitude to run an administrative gauntlet” and challenge the Executive’s decision in a court that is bound to apply that precedent. Johnson, 969 F.2d at 1093; see also Lopez v. Heckler, 572 F. Supp. 26, 30 (C.D. Cal. 1983), stay denied, 713 F.2d 1432 (9th Cir. 1983), partial stay granted, 463 U.S. 1328 (1983) (Rehnquist, Circuit Justice), motion to vacate stay denied, 464 U.S. 879 (1983), dist. court aff’d in part and rev’d in part, 725 F.2d 1489 (9th Cir. 1984), vacated on other grounds and remanded, 469 U.S. 1082 (1984) (mem.) (“If [a social security] claimant has the determination and the financial and physical strength and lives long enough to make it through the administrative process, he can turn to the courts and ultimately expect them to apply the law as announced [by the Circuit]. If exhaustion overtakes him and he falls somewhere along the road leading to such ultimate relief, the nonacquiescence and the resulting termination stand. Particularly with Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679, 692–718 (1989) (describing agency practice). 106 Department of Defense Response to Interlocutory Decision of Court of Appeals respect to . . . individuals whose resources . . . are . . . relatively limited, such a dual system of law is prejudicial and unfair.”). Notwithstanding the general practice of discretionary agency acquiescence in adverse court of appeals rulings, however, this Office and the Executive Branch have, as noted, long been of the view that an agency is not legally compelled to engage in intracircuit acquiescence. Certainly, such acquiescence is not required by any statute addressing the practice; 6 and, as the Department of Justice (“DOJ”) has consistently maintained, it also is not required by the separation of powers. 7 6 In 1984, both the House and Senate passed provisions regulating nonacquiescence by the SSA in their versions of the legislation that became the Social Security Disability Benefits Reform Act, Pub. L. No. 98-460, 98 Stat. 1794 (1984). But the Act as finally enacted did not address the subject and, although the House report and the conference report accompanying the Reform Act examined the practice of nonacquiescence and raised concerns about its propriety, both the House and Senate expressly declined to express definitive views regarding the practice’s constitutionality. See H.R. Rep. No. 98-1039, at 37–38 (1984), reprinted in 1984 U.S.C.C.A.N. 3080, 3095–96 (noting that “questions have been raised about the constitutional basis of non-acquiescence,” but concluding that “the legal and Constitutional issues raised by non-acquiescence can only be settled by the Supreme Court”); H.R. Rep. No. 98-618, at 25 (1984), reprinted in 1984 U.S.C.C.A.N. 3038, 3062 (stating that “the issue of the constitutionality of the nonacquiescence policy may be in doubt”); see also 130 Cong. Rec. 25,977 (1984) (statement of Senator Dole on behalf of the Senate) (“While some of the conferees have expressed strong reservations regarding [nonacquiescence by the Department of Health and Human Services (‘HHS’) in administering the Social Security Act], it should be made clear for the record that it is not the position of the Senate that the practice is unconstitutional as exercised by [HHS] or as by any other Federal agency.”). In 1998, the House passed a bill that would have generally required agencies to follow controlling circuit precedent, see Federal Agency Compliance Act, H.R. 1544, 105th Cong. § 2(a) (as passed by House, Feb. 25, 1998) (providing, with certain exceptions, that “an agency . . . shall, in administering a statute, rule, regulation, program, or policy within a judicial circuit, adhere to the existing precedent respecting the interpretation and application of such statute, rule, regulation, program, or policy, as established by the decisions of the United States court of appeals for that circuit”), but the Senate declined to follow suit and no law was enacted. The House report accompanying this bill stated that the framework for agency acquiescence that the bill would create “is consistent with the principle of separation of powers under which it is the courts’ constitutional role to interpret the laws governing agency actions,” but the report did not declare nonacquiescence unconstitutional. H.R. Rep. No. 105-395, at 7 (1997). 7 See Federal Agency Compliance Act: Hearing on H.R. 1924 Before the Subcomm. on Commercial and Administrative Law of the H. Comm. on the Judiciary, 106th Cong. 16 (1999) (statement of William B. Schultz, Deputy Assistant Attorney General, Civil 107 34 Op. O.L.C. 100 (2010) To be sure, unlike the usual case giving rise to acquiescence, the ruling in Witt interprets the Constitution. Some commentators have suggested that intracircuit acquiescence in a constitutional ruling by a court of appeals may be constitutionally compelled, even if nonacquiescence in statutory decisions is permissible. See Estreicher & Revesz, 98 Yale L.J. at 720 n.214 (“The status of nonacquiescence in a constitutional interpretation presents a much more troubling question”); see also id. at 731 n.261 (suggesting that nonacquiescence might be “always improper . . . with agency disagreements over constitutional rulings”). So far as we are aware, however, there is no precedent for an agency announcing a policy of acquiescence in a court of appeals decision declaring a federal statute invalid on constitutional grounds in the precise circumstances present here—i.e., where the United States continues to assert that the statute is constitutional and has reserved its right to continue defending the statute’s constitutionality, and where opportunities for subsequent review of the decision at issue are not exhausted. Moreover, the numerous statements setting forth DOJ’s view of the permissibility of nonacquiescence have not distinguished between nonacquiescence in statutory rulings and nonacquiescence in constitutional ones. Instead, DOJ’s position—that intracircuit nonacquiescence is a constitutionally permissible course of action—has long been cast in more general terms. And that is true as well of the limited Supreme Court case law that bears on the issue. B. Although it is true that “Article III establishes a ‘judicial department’ with the ‘province and duty . . . to say what the law is,’” Article III, Section 2 of the Constitution also expressly provides that this authority Division) (stating the Department’s well-established view that “the doctrine of separation of powers does not bar a federal agency from declining to apply the legal reasoning of a particular court of appeals decision in the agency’s further administration of a statutory program outside the context of the particular case in which the court rendered its decision”); see also Preston Testimony, supra note 5, at 42; Memorandum for James M. Spears, Acting Assistant Attorney General, Office of Legal Policy, from Ralph W. Tarr, Acting Assistant Attorney General, Office of Legal Counsel, Re: Correspondence with Administrative Law Judges at 11–14 (June 19, 1985); Letter for Robert Dole, Chairman, Senate Finance Committee, from Rex E. Lee, Solicitor General (May 7, 1984), entered into the congressional record at 130 Cong. Rec. 25,977 (1984) (“Lee Letter”). 108 Department of Defense Response to Interlocutory Decision of Court of Appeals extends to “particular cases and controversies.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218 (1995) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)). 8 Consistent with this limitation, the Supreme Court held in United States v. Mendoza, 464 U.S. 154 (1984), that the government was not foreclosed by the doctrine of “nonmutual collateral estoppel” from relitigating a legal issue it had previously litigated unsuccessfully in another action against a different party, even when the prior litigation had occurred in the same judicial circuit. In explaining its holding, the Court observed that “many constitutional questions can arise only in the context of litigation to which the Government is a party,” and “[a] rule allowing nonmutual collateral estoppel against the Government . . . would substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue.” Id. at 160. The Court also noted that the application of nonmutual estoppel against the government would have the undesirable consequences of (i) forcing the Solicitor General, “in order to avoid foreclosing further review,” to abandon prudential considerations in favor of “appeal[ing] every adverse decision [to the Supreme Court],” and (ii) permitting the policy decisions of one administration to unduly constrain a later one. Id. at 161. As the Court had observed previously in United States v. Estate of Donnelly, “[t]he United States, like other parties, is entitled to adhere to what it believes to be the correct interpretation of a statute, and to reap the benefits of that adherence if it proves to be correct, except where bound to the contrary by a final judgment in a particular case.” 397 U.S. 286, 294– 95 (1970). We recognize that in Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court observed that Marbury had “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that [that] principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” Id. at 18. That statement does not contradict our conclusion that nonacquiescence would be permissible here, if only because the Witt decision was rendered by a court of appeals rather than by the Supreme Court, and the latter plays a “special role” in our constitutional system in “resolving disputes about the constitutionality of enactments.” Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 200 (1994); cf. Plaut, 514 U.S. at 227 (noting that because Article III creates “not a batch of unconnected courts, but a judicial department composed of ‘inferior Courts’ and ‘one supreme Court,’” the decision of an inferior court “is not (unless the time for appeal has expired) the final word of the department as a whole”). 8 109 34 Op. O.L.C. 100 (2010) Of course, the Court’s recognition in Mendoza of the government’s authority to relitigate an issue lost in a prior case does not necessarily imply that an agency may decline to conform its conduct to a court of appeals decision in exercising its administrative authority with respect to nonparties within that circuit. But Mendoza, together with the relevant language from Donnelly, reflects the importance the Court ascribes to affording the government wide berth to contest federal judicial decisions and to “control[] the progress of Government litigation through the federal courts.” Mendoza, 464 U.S. at 161. And DOJ has relied upon both considerations in justifying nonacquiescence as an acceptable legal practice. See Preston Testimony, supra note 5, at 43 (legislation “[p]rescribing fixed, acrossthe-board standards for determining when nonacquiescence is appropriate is antithetical to the flexibility needed in deciding which cases to appeal to the Supreme Court and which legal issues to continue litigating in the lower courts”); see also Lee Letter, 130 Cong. Rec. at 25,977 (stating that regulation of nonacquiescence by House version of the Reform Act would have had “serious adverse implications for the conduct of the government’s litigation in the Social Security context”). 9 Moreover, the Ninth Circuit’s ruling in Witt was set forth in an interlocutory order, and the Attorney General expressly noted in the 530D Letter that the decision not to appeal it at that time reflected a recognition of the Supreme Court’s reluctance to review such interlocutory decisions. Interlocutory judgments by their nature do not definitively resolve a case. In this instance, for example, at least if the district court determines that the statute is invalid as applied and the Ninth Circuit upholds this decision on appeal, the government will be able to “raise any and all of its arguments in defense of the statute in a petition for a writ of certiorari seeking review of the final judgment.” 530D Letter. Thus, the Ninth Circuit’s decision in Witt is not “final” in the sense that the government will not be able under any circumstances to seek further review of that decision by the Supreme Court. The Court explained the relevant meaning of “finality” in Plaut: Indeed, the action that gave rise to the litigation in Mendoza was a decision by an administrative official that was inconsistent with the unappealed ruling of a district court, thus demonstrating the close connection between nonacquiescence and the ability of the government to relitigate the underlying issue. See Estreicher & Revesz, 98 Yale L.J. at 686. 9 110 Department of Defense Response to Interlocutory Decision of Court of Appeals [A] distinction between judgments from which all appeals have been forgone or completed, and judgments that remain on appeal (or subject to being appealed), is implicit in what Article III creates: not a batch of unconnected courts, but a judicial department composed of “inferior Courts” and “one supreme Court.” Within that hierarchy, the decision of an inferior court is not (unless the time for appeal has expired) the final word of the department as a whole. 514 U.S. at 227. Indeed, the Department of Justice specifically has observed that “[i]n such cases [involving interlocutory court of appeals decisions], nonacquiescence may be entirely appropriate.” Preston Testimony, supra note 5, at 45. Moreover, the conference report that Congress issued in enacting the Social Security Disability Benefits Reform Act of 1984, Pub. L. No. 98460, 98 Stat. 1794, stated the view that “a policy of non-acquiescence be followed only in situations where the Administration has initiated or has the reasonable expectation and intention of initiating the steps necessary to receive a review of the issue in the Supreme Court.” H.R. Rep. No. 981039, at 37. Thus, even if nonacquiescence might raise legal concerns in certain instances, we do not believe that it would do so here. 10 III. We next consider whether, given that acquiescence in the Witt decision is not legally required, it could be undertaken in a legally permissible 10 We acknowledge that nonacquiescence in this case, in addition to resulting in the likelihood that courts within the Ninth Circuit would enjoin separations that are not Wittconforming, might present some additional litigation risk. For example, we cannot foreclose the possibility that a court might assess attorney’s fees against DoD under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (2006). See, e.g., Hyatt v. Heckler, 807 F.2d 376, 382 (4th Cir. 1986); Preston Testimony, supra note 5, at 46 (“any time it decides not to acquiesce, an agency runs the risk of not only losing on the merits, but also being held liable for attorney’s fees [under the EAJA]”). A ruling against the government for a non-Witt-conforming separation might also provide the basis for a court to issue an injunction prohibiting nonacquiescence with respect to a much broader certified class of plaintiffs. See, e.g., Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984); Lopez, 572 F. Supp. at 31–32. We express no view of the merits of any such claims, but simply identify the possibility that a decision not to acquiesce could itself be the subject of litigation. 111 34 Op. O.L.C. 100 (2010) manner. The issue arises because you have asked us to consider whether DoD could lawfully establish a policy of acquiescing in Witt within the Ninth Circuit through the revision of existing policies and procedures governing section 654 separations. Presumably, the effect of such a revision would be to preclude the separation authority from effecting separations within the Ninth Circuit that section 654 standing alone would require, but that would not satisfy the heightened substantive due process standard announced in Witt. In our view, such a course of action could constitute a lawful means of acquiescing in the Witt decision, although the permissibility of any particular policy of acquiescence would of course depend on the details of that policy. Our conclusion that acquiescence in Witt could be undertaken in a lawful manner follows from the Executive’s longstanding view that acquiescence is a permissible practice and the absence of any indication in precedents of the Executive Branch or the judiciary that acquiescence is impermissible where an agency conforms its conduct to a court of appeals’ constitutional decision in a manner that may result in the agency’s declining to follow statutory requirements as to a class of cases. We caution, however, that we are aware of no precedent in executive branch practice that is precisely on point with the policy you have asked us to consider—i.e., an agency’s establishment of a categorical policy of intracircuit acquiescence in a constitutional ruling that might result in the agency acting contrary to statutory requirements while options for obtaining further review of the ruling in the case at issue remain potentially unexhausted. We further caution that our conclusion regarding the permissibility of acquiescence is limited to the implementation of policies and procedures tailored to ensuring that separations satisfy the Witt standard. Thus, modification of the policies and procedures governing separation proceedings within the Ninth Circuit for purposes of acquiescing in Witt should be temporary and contingent on further developments in the case. A. In assessing the lawfulness of a possible DoD policy of intracircuit acquiescence in Witt, we begin with a point made above: intracircuit acquiescence is the norm when an agency and a court of appeals construe an 112 Department of Defense Response to Interlocutory Decision of Court of Appeals applicable statute in different ways and the court of appeals has set forth its construction of the statute in a final, binding decision for which the mandate has issued. See Preston Testimony, supra note 5, at 44 (noting that “the general practice of federal agencies is to follow adverse court of appeals rulings”); see also, e.g., 66 Fed. Reg. 6436, 6438 (Jan. 22, 2001) (final DOJ rule announcing nationwide acquiescence in court of appeals decisions holding that section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “is not to be applied in the cases of aliens whose deportation proceedings were commenced before AEDPA was enacted”); 55 Fed. Reg. 1012, 1016 (Jan. 11, 1990) (final Department of Health and Human Services (“HHS”) rule establishing policy of applying within the relevant circuit those court of appeals decisions that HHS determines conflict with SSA policy, unless the government seeks further review of the decision). Furthermore, as far as we are aware, neither this Office nor any court has ever concluded that an agency’s acquiescence in a court of appeals decision was unlawful. In fact, there is judicial precedent from the Ninth Circuit (and other circuits) directly addressing acquiescence and indicating that acquiescence may be compelled, see Lopez, 725 F.2d at 1489, or at least permissible, cf. Castillo-Felix, 601 F.2d at 467 (acquiescence not compelled). Thus, the Executive Branch evidently has long viewed intracircuit acquiescence, although not legally required, as nonetheless an exercise of, and in accord with, the Executive’s obligation to take care that the laws be faithfully executed. See U.S. Const. art. II, § 3. And the Executive has held this view even though acquiescence may involve an agency’s accepting, and operating in conformity with, a construction of a statute that represents the controlling law of the circuit at the time, but that the Executive believes is incorrect and not legally binding on it as a party and that it intends at some opportune point to challenge in future litigation. The range of interests that are served by acquiescence have, in other words, been understood to make an agency’s acceptance of even a disputed legal construction by a court of appeals a means of faithfully executing the statute in question, notwithstanding that the agency believes acquiescence will result in the agency’s taking action at odds with its own view of the statute’s proper implementation. Given this long-established practice, we believe there would be little question of the permissibility of acquiescence if the conflict precipitated 113 34 Op. O.L.C. 100 (2010) by the Witt decision were due to the Ninth Circuit’s differing construction of the statute. For example, acquiescence would be permissible if the court had concluded as a matter of statutory construction that separation is not warranted when based solely upon a finding of “homosexual conduct,” and may instead be ordered only if there has been a more individualized determination about the need for the separation. In such a case, even if the agency construed the statute in a manner contrary to that adopted by the court, we think the agency could acquiesce in the circuit court’s determination regarding what the statute prescribes. But Witt is a constitutional, not a statutory, ruling. And the underlying statute on its face mandates DoD to take certain action in some instances. Accordingly, acquiescence in that decision by rendering separation contingent upon an individualized determination that the Witt court’s heightened substantive due process standard has been met could, in application, result in DoD’s declining to effect separations that section 654, standing alone, clearly would require. The situation before us thus raises a more substantial question than does the typical case of acquiescence in a circuit court’s adverse statutory ruling. After all, the Executive Branch has no general power to disregard enforcement of a statute, see Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 613 (1838), and we do not understand DoD to be asserting that it has independently determined that section 654 is unconstitutional in any applications, cf. Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. at 200. Thus, the possibility of DoD acquiescence in Witt presents the question whether DoD may take action that conforms to the Ninth Circuit’s construction of the Constitution but that would be impermissible under section 654 in the absence of the court’s constitutional ruling. The issue is made more substantial, moreover, because the Witt court’s heightened substantive due process standard was announced in an interlocutory ruling in a case that is pending on remand. We have not identified a prior occasion in which an agency has announced a policy of intracircuit acquiescence in a circuit court’s constitutional ruling while the case in which the court issued the ruling remains pending. Indeed, in one recent instance presenting the opportunity for such acquiescence, the INS appears to have declined to acquiesce in various court of appeals decisions holding that 8 U.S.C. § 1226(c) (2006), which requires the mandatory detention of aliens found subject to remov114 Department of Defense Response to Interlocutory Decision of Court of Appeals al, violates the requirements of constitutional due process as applied to lawful permanent resident aliens absent the holding of an individualized bond hearing. See Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001); Welch v. Ashcroft, 293 F.3d 213 (4th Cir. 2002); Hoang v. Comfort, 282 F.3d 1247 (10th Cir. 2002); Kim v. Ziglar, 276 F.3d 523 (9th Cir. 2002), rev’d sub nom. Demore v. Kim, 538 U.S. 510 (2003). Until the Supreme Court concluded in 2003 that the statute was in fact constitutional, see Demore, 538 U.S. 510, immigration judges, in conformity with the court of appeals decisions cited above, granted aliens in such circumstances individualized hearings. But the INS appears to have appealed every decision by an immigration judge to release the alien on bond, thus triggering an automatic stay of the release orders under INS regulations. See AlmonteVargas v. Elwood, No. 02-cv-2666, 2002 WL 1471555, at *3 n.5 (E.D. Pa. June 28, 2002). The U.S. District Court for the Eastern District of Pennsylvania criticized this practice of apparent nonacquiescence as having been “designed to administratively overrule [the appeals court decisions requiring hearings] pending Supreme Court review of the mandatory detention issue.” Id.; see also id. at *4 (“‘The Government has not acquiesced to the Third Circuit’s decision in Patel.’” (quoting government’s Notice of Appeal to the Board of Immigration Appeals (“BIA”) of the Bond Decision of the Immigration Judge, alterations omitted)). However, the general tenor of the relevant statements by DOJ suggests that acquiescence is a permissible course of action in general—seemingly regardless of whether the underlying decision by the court of appeals is constitutional or statutory. For example, we are aware of no prior statements by DOJ that qualify in a relevant manner its view of the permissibility of acquiescence as a practice. And we have identified at least two instances in which agencies charged with enforcement of a statute have acquiesced in adverse judicial judgments holding that the statutes were unconstitutional if applied in a manner that the statute seemed to require, although each instance is in some way distinguishable from the type of acquiescence you have asked us to consider. See United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 5 (2008) (noting that government did not appeal district court decision holding that tax on coal was unconstitutional and that the Internal Revenue Service “acquiesced in the District Court’s holding”) (citing IRS Notice 2000-28, 2000-1 Cum. Bull. 115 34 Op. O.L.C. 100 (2010) 1116, 1116–17); Matter of Silva, 16 I. & N. Dec. 26, 29–30 (1976) (observing that Solicitor General had declined to seek review in Francis v. INS, 532 F.2d 268 (2d Cir. 1976), and stating that “[i]n view of the ruling in Francis,” the BIA would “withdraw from the contrary position” regarding the constitutionality of 8 U.S.C. § 1182(c) “expressed by th[e] Board in” prior decisions). The example that is most relevant here is Silva. That precedent, unlike the present situation, did not involve agency acquiescence in an interlocutory order issued in a case that remained pending. Nonetheless, the example is instructive. In Silva, 16 I. & N. Dec. at 29–30, the BIA acquiesced in Francis, 532 F.2d 268, a constitutional ruling by the Second Circuit regarding the application of 8 U.S.C. § 1182(c) (1970, repealed 1996). That provision by its terms authorized the Attorney General to waive certain grounds for exclusion applicable to permanent resident aliens “who temporarily proceeded abroad voluntarily.” 8 U.S.C. § 1182(c). The Francis court held that the equal protection component of the Due Process Clause of the Fifth Amendment required the Attorney General to exercise his waiver authority under the statute equally with respect to aliens who had departed the country and those who had never left. 532 F.2d at 273. The BIA acquiesced in this ruling in every circuit but the Ninth Circuit—thereby retreating in every circuit except the Ninth from its established position that the Attorney General could exercise his waiver authority under section 1182(c) only with respect to departing aliens. See Silva, 16 I. & N. Dec. at 29–30. In the Ninth Circuit, however, the BIA maintained its prior reading of the statute, thus conforming its conduct to that circuit’s own binding precedent. See Tapia-Acuna v. INS, 640 F.2d 223, 224–25 (9th Cir. 1981) (“The BIA has voluntarily adopted the rule announced in Francis . . . except in cases arising in the Ninth Circuit.”) (internal citations omitted); Abebe v. Holder, 577 F.3d 1113, 1116 (9th Cir. 2009) (denial of petition for en banc panel rehearing and petition for full court rehearing en banc) (Berzon, J., dissenting from denial of full court rehearing) (observing that the BIA in Silva acquiesced in Francis “in all circuits except [the Ninth Circuit], where contrary precedent was controlling”). 11 Thus, the example of Silva appears to 11 The BIA adhered in the Ninth Circuit to its prior position until 1981, when the Ninth Circuit adopted the Second Circuit’s view that the Constitution required application of the 116 Department of Defense Response to Interlocutory Decision of Court of Appeals demonstrate that an agency has in the past exercised discretion to determine whether and in what manner to acquiesce in constitutional rulings by courts of appeals that would require the agency to enforce a statute in a manner the agency believed would be contrary to what Congress would have intended in the absence of the adverse ruling. B. In light of this past practice, and notwithstanding that we have identified no example of prior acquiescence that is precisely on point, we believe that DoD could lawfully acquiesce in Witt. In our view, Congress has not unambiguously expressed the intent to foreclose DoD from suspending enforcement of section 654 for the narrow and limited purpose of acquiescing in an adverse court of appeals precedent such as Witt, and the Take Care Clause, U.S. Const. art. II, § 3, does not impose an independent obligation to refrain from such acquiescence in the absence of a clear statutory bar to doing so. This conclusion holds even though the new procedures might result in the retention of service members whose separations the statute otherwise would require. To be sure, the phrasing of the statute—in particular the provision that a service member “shall be separated,” 10 U.S.C. § 654(b) (emphasis added)—indicates that Congress did not mean to authorize DoD to categorically decline to enforce section 654. However, “shall” is not a term that invariably admits of no exceptions without regard to the circumstances. In Town of Castle Rock v. Gonzales, for example, the Supreme Court held that a state statute providing that “‘[a] peace officer shall enforce a valid restraining order’” does not “truly [make] enforcement of restraining orders mandatory.” 545 U.S. 748, 759–60 (2005) (quoting Colo. Rev. Stat. § 18-6-803.5(3) (Lexis 1999)). In reaching this conclusion, the Court relied on the “well established tradition of police discretion [that] has long coexisted with apparently mandatory arrest statutes.” Id. at 760. Here, likewise, in enacting section 654, Congress legislated against a wellestablished historical practice of agencies generally acquiescing in adstatute to both departing and nondeparting aliens. See Tapia-Acuna, 640 F.2d 223. In 2009, however, the Ninth Circuit returned to its pre-1981 position that waiver under section 1182(c) is available only with respect to aliens who have left the country. See Abebe v. Mukasey, 554 F.3d 1203, 1207 (9th Cir. 2009) (en banc) (per curiam). 117 34 Op. O.L.C. 100 (2010) verse circuit precedent. See Cannon v. Univ. of Chicago, 441 U.S. 677, 696–97, 698–99 (1979) (observing that it is “always appropriate to assume that our elected representatives, like other citizens, know the law” and that an “evaluation of congressional action . . . must take into account its contemporary legal context”). Indeed, insofar as we are aware, Congress has never purported to statutorily bar an agency from acquiescing in adverse circuit precedent. To the contrary, the legislation that Congress has considered on the subject has been uniformly directed at limiting the circumstances in which agencies may nonacquiesce, and would have applied even if the affected agencies believed an underlying statute was best read to require a course of action other than that prescribed by the governing law of the circuit. 12 The committee report accompanying a 1998 House-passed bill that would have generally barred agencies from declining to follow controlling circuit precedent, for example, stated that “citizens who file claims or who otherwise are involved in proceedings with federal agencies have the right to expect that those agencies will obey the law as interpreted by the courts.” H.R. Rep. No. 105-395, at 3; see also H.R. Rep. No. 98-1039, at 37 (stating that “many of the conferees have strong concerns about some of the ways in which [SSA’s] policy [of nonacquiescence] has been applied”); H.R. Rep. No. 98-618, at 24 (stating that “[w]hile the issue of the constitutionality of the non-acquiescence policy may be in doubt, the undesirable consequences of escalating hostility between the Federal courts and [HHS] are clear”). In light of this history, it is fair to expect that Congress would have spoken in clear and direct terms had it intended to prohibit DoD from engaging in this generally well-established agency practice of acquiescing in adverse circuit precedent. Cf. INS v. St. Cyr, 533 U.S. 289, 299 n.10 (2001) (“‘In traditionally sensitive areas, the requirement of [a] clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.’” (quoting Gregory v. Ashcroft, 501 U.S. 452, 461 (1991) (internal alterations omitted))). And we do not think that section 654’s use of the word See, e.g., H.R. 1544, 105th Cong. § 2(a) (as passed by House, Feb. 25, 1998) (bill that would require agencies to follow circuit precedent except in narrow specified circumstances); H.R. 3755, 98th Cong. § 302(b) (as passed by House, Mar. 27, 1984) (bill that would require acquiescence by Secretary of HHS in court of appeals decisions interpreting Social Security Act, except during pendency of Supreme Court review). 12 118 Department of Defense Response to Interlocutory Decision of Court of Appeals “shall,” when read against this background, suffices to provide the clarity that would be necessary to conclude that Congress intended to displace the discretion to acquiesce that agencies generally retain and exercise. Nor do we think that, although Congress may fairly be understood not to have intended to bar DoD’s intracircuit acquiescence in court of appeals rulings construing section 654, Congress must have intended to prohibit DoD from engaging in such acquiescence in court of appeals rulings imposing constitutional limits on the enforcement of section 654. There is no basis for concluding that Congress meant in section 654 to bar acquiescence in the latter, but not the former, contexts. This conclusion draws additional support from the fact that the historical practice of intracircuit acquiescence reflects substantial government interests in avoiding the adverse potential consequences of nonacquiescence—such as inter-branch conflict and the imposition of significant burdens on regulated parties—that are present regardless whether statutory or constitutional rulings are involved. Indeed, legislative reports have at times cited considerations such as these in expressing concern regarding an agency’s decision not to acquiesce. See H.R. Rep. No. 105-395, at 7 (“equity and orderly governance require that agencies, like private citizens, should obey the law enunciated by courts of competent jurisdiction”); H.R. Rep. No. 98-618, at 24 (raising concerns about “the result of [SSA’s] non-acquiescence policy for claimants, the courts, and SSA”). These governmental interests may have particular force depending on the circumstances. An agency may conclude that intracircuit acquiescence is appropriate to demonstrate respect for a court of appeals and its status within the federal judiciary and to avoid the interbranch conflict that might otherwise result. Cf. H.R. Rep. No. 98-618, at 25 (expressing “concern[] about the increasing number and intensity of confrontations between [the SSA] and the courts as SSA refuses to apply circuit court opinions”). 13 An agency may also view acquiescence in adverse circuit precedent as the best way to serve those affected by the relevant statutory regime and to ensure effective program administration. See Atchison, Indeed, as noted above, commentators have argued that this general interest arguably has even greater force where, as here, the agency would be acquiescing in a constitutional ruling. Cf. Estreicher & Revesz, 98 Yale L.J. at 720 n.214 (nonacquiescence is “much more troubling” in a constitutional rather than in a statutory case). 13 119 34 Op. O.L.C. 100 (2010) Topeka & Santa Fe Ry. Co. v. Pena, 44 F.3d 437, 447 (7th Cir. 1994) (Easterbrook, J., concurring) (“[A]n agency prudently may decide to acquiesce, to reduce uncertainty and the costs of both the legal process and compliance with multiple standards . . . .”), aff’d sub nom. Bhd. of Locomotive Eng’rs v. Atchison, Topeka & Santa Fe Ry. Co., 516 U.S. 152 (1996); see also, e.g., 55 Fed. Reg. at 1017 (characterizing SSA’s policy of acquiescence as “an appropriate exercise of our responsibility to administer the vast and complex Social Security benefit programs in a manner that is least burdensome to Social Security claimants and preserves our ability to attempt to maintain national uniformity in program administration”); 66 Fed. Reg. at 6438 (describing policy of acquiescence in section 440(d) of AEDPA as motivated by “the interest of the uniform and expeditious administration of the immigration laws”). The government may also have litigation-related reasons for acquiescing, including an interest in avoiding resource-consuming challenges to the agency’s actions within the circuit, see Castillo-Felix, 601 F.2d at 467 (noting that nonacquiescence “would only invite appeal and reversal”), and a desire to advance the most advantageous litigation strategy for ensuring vindication of the government’s position over the long term. And, again, these interests could, as a general matter, be served through agency acquiescence in constitutional, as well as statutory, rulings. Thus, although we are not aware of the precise rationales that DoD would invoke were it to decide to acquiesce in Witt, we cannot say that acquiescence here would be impermissible as a matter of law in light of these reasons why, as a general matter, agencies may permissibly acquiesce. Whether acquiescence would be advisable as a matter of policy in these circumstances, of course, is a distinct question that this memorandum does not address. To be sure, because the Witt decision is an interlocutory ruling from which the government did not seek immediate appeal, a decision not to acquiesce would be in accord with a well-recognized exception to the usual practice of acquiescence. As the Department has previously observed in discussing the importance of the government retaining the option of nonacquiescence, a determination not to appeal an interlocutory ruling is not a determination that the government must conform its conduct to that ruling. See Preston Testimony, supra note 5, at 45. But we do not think it follows from this recognized exception to the general practice of acquiescence that DoD would be acting unlawfully if it chose to acqui120 Department of Defense Response to Interlocutory Decision of Court of Appeals esce in Witt. Although DOJ has stated that nonacquiescence in interlocutory decisions “may be entirely appropriate,” id., it never has suggested that intracircuit acquiescence in such cases would be unlawful. Indeed, in light of the attendant consequences—and collateral litigation—that may result from nonacquiescence, we could not say the government would have no legitimate interest in having the flexibility, at least in certain appropriate contexts, to acquiesce in an interlocutory decision until such time as the case ripens and the ruling may properly be subject to appeal. Simply put, even though the Witt ruling is set forth in an unappealed interlocutory order, the controlling law of the circuit is established by that ruling until such time as it may be reconsidered by the circuit itself or overruled by the Supreme Court. Accordingly, in our view, the procedural posture of a binding interlocutory ruling does not so undermine the comity and policy factors identified above that such acquiescence, even if it were determined to be ill-advised, would constitute a violation of the Executive’s “AEDPA” responsibilities. Another consideration that may arguably weaken the case for acquiescence here is one to which we have already alluded. It arises from the possible tension between such acquiescence and Congress’s unqualified finding that “[t]he presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability,” 10 U.S.C. § 654(a)(15). DoD acquiescence in Witt might well result in the Department declining to effectuate the separation of an individual whose separation the statute, standing alone, would appear to require. However, so long as any such decision is premised solely on DoD’s interest in conforming its conduct to the controlling law of the circuit—and not on a broader judgment not to comply with section 654 or an independent judgment that the provision is unconstitutional—such tension would be at least somewhat mitigated. Indeed, because Witt is binding as a matter of stare decisis within the Ninth Circuit, separations that could not satisfy the Witt standard presumably could not be effected within that circuit if challenged in court so long as Witt remains the governing law. And that would be the case wholly independent of DoD’s decision to acquiesce. Thus, at least with respect to this category of cases, an appropriately tailored policy of acquiescence may be understood as designed to conform 121 34 Op. O.L.C. 100 (2010) agency conduct to the governing law, given that any policy of acquiescence would be temporary and contingent on further developments in Witt. We recognize that this Office has previously set forth guidance with respect to when the President may, consistent with his “take care” responsibilities, decline to enforce enacted legislation for constitutional reasons. See Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199. This guidance notes that the President should presume that enactments are constitutional and, thereby, “give great deference to the fact that Congress passed the statute and that Congress believed it was upholding its obligation to enact constitutional legislation.” Id. at 200. We also acknowledge in that guidance the “special role” of the Supreme Court in resolving disputes about the constitutionality of enactments and the deference to be accorded the Court’s likely decisions regarding particular provisions. Id. We did not consider, however, the legitimacy of intracircuit acquiescence, which is a practice distinct from, and more cabined than, an Executive Branch decision not to enforce a statutory provision at all based on an independent assessment that the law is unconstitutional. Accordingly, we do not believe that the principles set forth in the guidance control the decision of an agency to acquiesce in adverse circuit precedent, even when that precedent imposes constitutional limits on an agency’s ability to act in accord with what a statute would otherwise require. Thus, in light of the established historical practice of intracircuit acquiescence as a general matter, and the substantial interests that it can serve, we cannot conclude that such acquiescence would violate the Executive’s “take care” responsibilities here, even if it could result in some instances in nonenforcement of an otherwise mandatory statutory command. Our conclusion is consistent with, although it is not compelled by, judicial precedents in other contexts involving agency decisions not to enforce a statute. As the Supreme Court has observed, “an agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities,” and “[t]hat discretion is at its height when the agency decides not to bring an enforcement action.” Massachusetts v. EPA, 549 U.S. 497, 527 (2007). Indeed, in Heckler v. Chaney, the Court stated that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally 122 Department of Defense Response to Interlocutory Decision of Court of Appeals committed to an agency’s absolute discretion,” and attributed this proposition “to the general unsuitability for judicial review of agency decisions to refuse enforcement.” 470 U.S. 821, 831 (1985). 14 In particular, the Court noted, “an agency decision not to enforce often involves a complicated balancing of a numbers of factors which are peculiarly within its expertise.” Id. These factors include not only whether “a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all.” Id. An agency decision, based on considerations of inter-branch comity and sound policy, to suspend enforcement of a statute within a particular circuit in order to acquiesce in a court of appeals decision resembles a decision not to enforce based on the types of “factors” identified in Chaney as “peculiarly within [an agency’s] expertise.” Id. We acknowledge, however, that extending the reasoning of Chaney to a practice of intracircuit acquiescence such as the one proposed here would raise two potentially significant concerns. First, as the Eighth Circuit has noted, the Chaney framework for determining whether agency action rests within the agency’s sole discretion appears to “appl[y] to individual, caseby-case determinations of when to enforce existing regulations rather than permanent policies or standards.” Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996); see also Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 677 (D.C. Cir. 1994) (noting that general enforcement policies are “more likely to be direct interpretations of the commands of the substantive statute rather than the sort of mingled assessments of fact, policy, and law that drive an individual enforcement decision and that are . . . particularly within the agency’s expertise and discretion”). A formal policy of acquiescence in Witt resembles the more broadly applicable type 14 The precise question at issue in Chaney was whether an agency’s decision not to enforce a statute was subject to judicial review under the Administrative Procedure Act (“APA”). The Court observed that under 5 U.S.C. § 701(a)(2), an agency’s action is not subject to judicial review if it is “‘committed to agency discretion by law.’” Chaney, 470 U.S. at 828. Thus, although the question directly presented in Chaney was the availability of judicial review under the APA, the Court resolved that question by determining whether Congress had afforded the agency the requisite nonenforcement discretion. 123 34 Op. O.L.C. 100 (2010) of categorical nonenforcement policy that even the “absolute discretion” discussed in Chaney may not encompass. Second, as the Court also recognized in Chaney, “Congress may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue.” 470 U.S. at 833. And, in discussing a prior decision, Dunlop v. Bachowski, 421 U.S. 560 (1975), the Chaney Court stated that the statute at issue in that case, which provided that the Secretary of Labor “‘shall investigate [a] complaint and, if he finds probable cause to believe that a violation has occurred he shall bring a civil action,’” “quite clearly withdrew discretion from the agency and provided guidelines for exercise of its enforcement power.” 470 U.S. at 833 –34 (quoting 29 U.S.C. § 482(b), internal alterations omitted); see also id. at 833 (discussing the provision at issue in Dunlop as “an example of statutory language which supplied sufficient standards to rebut the presumption of unreviewability”); Letter for Richard W. Allen, Assistant General Counsel for General Law, Consumer Product Safety Commission, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel 3 n.* (Dec. 14, 1977) (observing that an agency’s “[e]nforcement discretion may be circumscribed to a substantial degree if the agency is guided by a statute that employs mandatory enforcement language”). Nonetheless, the potential nonenforcement decision here—assuming it is based upon temporary acquiescence in a court of appeals decision within that court’s jurisdiction—would be of the type that is “often inherently policy driven and thus best left to the discretion of the agency” rather than to the reviewing court. Harrington v. Chao, 372 F.3d 52, 55 (1st Cir. 2004). Accordingly, and in light of an established general practice of acquiescence, it is fair to assume that Congress did not mean to bar such a course of action, at least absent a clearer statement to that effect than is evidenced in section 654, notwithstanding its use of the mandatory term “shall.” Indeed, as the Court explained in Dunlop, even if a governing statute establishes that a nonenforcement decision is not “an unreviewable exercise of prosecutorial discretion,” such decisions should still be reviewed under an extremely deferential standard, asking only whether the decision was “so irrational as to constitute the decision arbitrary and capricious.” 421 U.S. at 567 n.7, 573; see also Harrington, 372 F.3d at 55 –56 (Secretary’s decision to enforce 29 U.S.C. § 482 “is reviewed only 124 Department of Defense Response to Interlocutory Decision of Court of Appeals under the highly limited arbitrary and capricious standard contained in the Administrative Procedure Act, 5 U.S.C. § 706,” and “a court reviews the Secretary’s stated reasons for not suing only to determine whether they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”) (citations and internal quotation marks omitted). Thus, although an agency may not “consciously and expressly adopt a general policy that is so extreme as to amount to an abdication of its statutory responsibilities,” Chaney, 470 U.S. at 833 n.4, we could not say that a DoD policy of suspending the enforcement of section 654 in a limited class of cases in order to acquiesce in the Witt decision would constitute action of that kind. DAVID J. BARRON Acting Assistant Attorney General Office of Legal Counsel 125

Write a legal research memo on the following topic.

May 14, 1979 79-31 MEMORANDUM OPINION FOR THE ASSISTANT DIRECTOR, LEGAL COUNSEL DIVISION, FEDERAL BUREAU OF INVESTIGATION Federal Bureau of Investigation—Contractual Exemption from Liability for Agents’ Negligence in FBI Law Enforcement Training (42 U.S.C. § 3744) This responds to your request for our opinion whether Federal Bureau o f Investigation (FBI) agents, providing training to State and local law en­ forcement officers, may require that the officers agree not to sue the FBI agents individually for injuries that might be caused by the agents’ negli­ gence in connection with such training. Section 3744 o f title 42, U.S. Code, 82 Stat. 204, reads in pertinent part as follows: (a) The Director o f the Federal Bureau o f Investigation is authorized to — (1) establish and conduct training programs at the Federal Bureau o f Investigation National Academy at Quantico, Virginia, to provide, at the request o f a State or unit o f local government, training for State and local law enforcement and criminal justice personnel; (2) assist in conducting, at the request o f a State or unit o f local government, local and regional training programs for the training o f State and local law enforcement and criminal justice personnel * * *. * * * * * * * (b) In the exercise o f the functions, powers, and duties estab­ lished under this section the Director o f the Federal Bureau o f In­ vestigation shall be under the general authority o f the A ttorney General. Your office has informed us that the relevant facts are as follows. The 205 training programs authorized by § 3744 are conducted by FBI Special Agent police instructors. Several o f these instructors have asked whether they may require that persons, as a condition to receiving training, agree not to sue the instructors individually for injuries they may negligently cause the trainees. We understand that the suggested agreements would take the form o f “ covenants not to sue” and would in effect be ex­ culpatory agreements for the benefit o f the individual agents. Further, we have been inform ed that the FBI, as an agency, would not seek to compel such agreements, but rather that the agreements would be between the agents in their personal capacities and the trainees. It is contem plated, however, that those trainees who decline to enter into the agreements will be barred from participating in the programs. You have stressed that the exculpation agreements would only relieve the individual agents from liability for their negligence, and that the United States would remain liable for any negligence covered by the Federal Torts Claims Act. Since double recovery is barred by that Act, 28 U.S.C. § 2676, the trainee would suffer no financial loss by proceeding solely against the United S tates.1 Indeed, the United States’ ability to pay a judgm ent makes it the more logical defendant. This is borne out by the fact that no agent has yet been sued in his personal capacity in connection with the FBI training program, although there have been training-related suits against the United States. For the reasons that follow we conclude that such agreements are legally improper and therefore unenforceable. First, it should be noted that the training programs are official FBI pro­ grams. Thus, the determ ination whether particular governmental units and their trainees will be permitted to participate in these programs is for the FBI to make. Accordingly, since exclusion from the program would re­ quire governmental action, it cannot be done by FBI agents in their per­ sonal capacities. In other words, it cannot be reasonably argued that restricting participation in the training would not be an official FBI act. This is for the simple reason that if the FBI did not, in fact, seek to compel such agreements there would be nothing to prevent persons refusing to enter the agreements from participating in the training program s.2 Therefore, the short answer is that the agents, as individuals, are not em­ powered to set conditions for entry to a Federal program. A part from this consideration, we have serious doubt that the contem ­ plated agreements would be enforceable as a m atter o f common law. 1 Further, you state that the agreements would only relate to ordinary negligence, that is, they would not cover gross negligence and willful conduct. The draft agreement that you sent to us, however, does not clearly m ake such a distinction. Thus, if the agreement were to operate as you state, it should include a sentence stating that gross negligence and willful con­ duct are not covered. 1 We understand that instructors in the training program s volunteer for these assignments and thus retain the option o f not serving as instructors for any reason, including fear o f a suit against them personally. 206 When agents accept the instructor assignments, they assume a duty to the Government to serve as such. Thus, their agreement to train the partici­ pants in the programs in exchange for executing the covenant not to sue would appear to involve merely the performance o f a preexisting duty, and for that reason would not be sufficient consideration to support a con­ tract. Compare, Davis v. Mathews, 361 F. (2d) 899 (4th Cir. 1966). Section 132 o f Williston on Contracts (3rd ed. 1957) explains this as follows: If a promisee is already bound by official duty to render a serv­ ice, it is no detriment to him, and no benefit to the promisor beyond what the law requires the promisee to suffer or to give, for him to do or agree to do the service on request. Though the previous legal duty does not run to the promisor under the later agreement, it runs to the public o f which the prom isor is a member, and as such he has a right, even if not one enforceable at law, to the performance in question. Therefore, no contract can be based on such consideration. [Footnotes omitted.] To the extent it might be argued that the contracts are supported by a valuable consideration, a further problem arises under 18 U.S.C. 209, pro­ viding in pertinent part as follows: Whoever receives any salary, or any contribution to or supple­ mentation o f salary, as compensation for his services as an officer or employee o f the executive branch o f the United States * * * from any source other than the Government o f the United States * * * shall be fined not more than $5,000 or imprisoned not more than one year, or both. See also 28 CFR § 45.735-8 (Departm ent of Justice regulation embodying § 209’s prohibition). This Office has interpreted these provisions as bar­ ring receipt o f things o f value by a Departm ent employee if they are given in connection with the employee’s Federal assignment. While we need not here decide whether § 209 and the Department regulation would be violated by individual agents exacting the subject agreements from trainees, they are not in keeping with the spirit o f the cited provisions. For these reasons it is our opinion that individual agents may not re­ quire that exculpatory agreements be executed as a condition o f participa­ tion in the training programs. L arry A . H a m m o n d D eputy Assistant A ttorney General Office o f Legal Counsel 207

Write a legal research memo on the following topic.

Eligibility of Citizens o f Freely Associated States for HUD Financial Assistance T h e S ecretary o f H ousing and Urban D evelopm ent m ay n ot m ake financial assistance, including assist­ an ce u n d er sectio n 8 o f the United S ta te s H ousing A ct o f 1937, available fo r the benefit o f citizens o f the F re ely A sso ciated States (Federated S tates o f M icronesia, M arshall Islands, R epublic o f P alau) w h o h av e en tered the T erritory o f G uam and the C om m onw ealth o f the Northern M ariana Islan d s as n o n -im m ig ran ts pursuant to section 141 o f the C om pact o f Free A ssociation. March 7, 1996 M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l D e p a r t m e n t o f H o u s in g a n d U r b a n D e v e l o p m e n t I am replying to your letter of October 3, 1995, in which you inquire whether section 214 of the Housing and Community Development Act of 1980 (codified as amended at 42 U.S.C. § 1436a) (“ section 214” ) precludes the Secretary of Housing and Urban Development from making financial assistance under section 8 of the United States Housing Act of 1937 available for the benefit of citizens of the Freely Associated States (Federated States of Micronesia, Marshall Islands, Republic of Palau) who are present in the Territory of Guam and the Common­ wealth of the Northern Mariana Islands pursuant to section 141 of the Compact of Free Association. We conclude that it does. I. Section 8 of the United States Housing Act of 1937, 42 U.S.C. § 1437f, provides for low-income housing assistance.1 The basic statutory plan is that the Depart­ ment of Housing and Urban Development (“ HUD” ) enters into agreements with property owners establishing a “ contract rent.” Low-income tenants pay one-third of their monthly income toward that contract rent, and HUD pays the balance. Section 214 of the Housing and Community Development Act of 1980, as amended by section 329(a) of the Omnibus Budget Reconciliation Act of 1981, provides in substance that the Secretary may not make financial assistance, includ­ ing financial assistance under the United States Housing Act of 1937, available for the benefit of any alien, unless that alien is a resident of the United States and comes within several specified categories, comprising in particular aliens law­ fully admitted for permanent residence and certain aliens whose presence in the United States is authorized by specific provisions of the Immigration and Nation­ ality Act. 42 U.S.C. § 1436a(a), (b). Section 214(a)(1) specifically prohibits mak­ 1 Section 8 was enacted as a part of title II of the Housing and Community Development Act o f 1974, Pub. L. No. 9 3 -3 8 3 , 88 Stat. 633, 653, which revised the Housing A ct o f 1937. According to section 201 o f the 1974 Act, title II may be cited as “ U nited States Housing Act o f 1937.” 116 Eligibility o f Citizens o f Freely Associated States fo r HUD Financial Assistance ing financial assistance available to “ alien visitors, tourists, diplomats and students who enter the United States temporarily with no intention of abandoning their residence in a foreign country.” 2 42 U.S.C. § 1436a(a)(l). Section 141 of the Compact of Free Association, Pub. L. No. 99-239, 99 Stat. 1770, 1804 (1986) (Marshall Islands and Federated States of Micronesia) and Pub. L. No. 99-658, 100 Stat. 3672, 3682 (1986) (Palau),3 provides in effect that citi­ zens of the Freely Associated States may enter, lawfully engage in occupations and establish residence as nonimmigrants in the United States and its territories without having to comply with certain passport, visa, and labor certification re­ quirements. Such persons are deemed to have the permission of the Attorney Gen­ eral to accept employment in the United States. On the other hand, the right of such persons to establish habitual residence in a territory or possession may be subjected to limitations. Section 141 does not confer on the citizens of the Freely Associated States the right to establish a residence for the purpose of naturaliza­ tion. II. Section 214 precludes the Secretary from making financial assistance, including benefits under the Housing Act, available for the benefit of any alien unless the alien is a resident of the United States and falls within one of the following six specified categories: (1) an alien lawfully admitted for permanent residence as an immi­ grant as defined by section 1101 (a)( 15) and (20) of title 8 exclud­ ing, among others, alien visitors, tourists, diplomats, and students who enter the United States temporarily with no intention of aban­ doning their residence in a foreign country; (2) an alien who entered the United States prior to June 30, 1948, or such subsequent date as is enacted by law, has continuously maintained his or her residence in the United States since then, and is not ineligible for citizenship, but who is deemed to be lawfully admitted for permanent residence as a result of an exercise of dis­ cretion by the Attorney General pursuant to section 1259 of title 8; (3) an alien who is lawfully present in the United States pursuant to an admission under section 1157 of title 8 or pursuant to the 2 In the original 1980 version o f section 214(a) the prohibition was limited to foreign students. See 42 U.S.C. § 1436a(a) (Supp. IV 1980). 3 W e shall refer collectively to the Compacts o f Free Association as “ the Com pact.” They became effective as follows: Marshall islands, O ctober 21, 1986, Federated States o f Micronesia, November 3, 1986, Proclamation No. 5564, 3 C.F.R. 146 (1987), reprinted in 48 U.S.C. § 1801 note (1994); Republic o f Palau, October 1, 1994, Proclama­ tion No. 6726, 3 C.F.R. 104 (1995). 117 Opinions o f the Office o f Legal Counsel in Volume 20 granting of asylum (which has not been terminated) under section 1158 of title 8; (4) an alien who is lawfully present in the United States as a result of an exercise of discretion by the Attorney General for emergent reasons or reasons deemed strictly in the public interest pursuant to section 1182(d)(5) of title 8; (5) an alien who is lawfully present in the United States as a result of the Attorney General’s withholding deportation pursuant to sec­ tion 1253(h) of title 8; or (6) an alien lawfully admitted for temporary or permanent residence under section 1255a of title 8. 42 U.S.C. §1436a(a). As a textual matter, none of the exceptions to section 214’s prohibition on finan­ cial assistance covers citizens o f the Freely Associated States who are present in the United States pursuant to section 141 of the Compact. The exceptions enu­ merated in subsections (2) through (6) all involve action by the Attorney General with respect to individuals and groups; thus, these subsections do not apply to citizens of the Freely Associated States who are present in the United States pursu­ ant to section 141 of the Compact. Read literally, the exception enumerated in subsection (1) is also inapplicable. It covers “ alien[s] lawfully admitted for perma­ nent residence as . . . immigrants],” while section 141 of the Compact guaran­ tees citizens of the Freely Associated States the right to “ establish residence as . . . nonimmigrant[s].” Congress’s intent in enacting statutes is of course not always served by wooden interpretations of statutory texts, and we realize that arguments can be made that section 214 should not be read to exclude persons present in the United States under section 141 of the Compact. The scope of subsections (1) through (6) argu­ ably suggests that Congress’s intent in carving out exceptions to section 214’s prohibition was to permit the Secretary as a general matter to provide financial assistance to aliens who are lawful residents of the United States. Citizens of the Freely Associated States are entitled under section 141 of the Compact to “ establish residence” for an indefinite period or permanently, and when they do so they clearly have been “ lawfully admitted” in many senses of that expression.4 Furthermore, we note that the legislative history of section 214, and of the bills from which it is derived, include many statements to the effect that the legislation was designed to deny assistance for the benefit of illegal alien s.5 Individuals re­ 4 U nder section 141(b) o f the Compact, the right o f citizens o f the Freely Associated States “ to establish habitual residence in a territory o r possession o f the United S tates" may be limited by federal or (where authorized by Congress) territorial legislation. W e are not aw are that any such limitations have been enacted. *See S. Rep. No. 9 7 -8 7 , at 34 (1981); S. Rep. No. 97-139, at 235 (1981), reprinted in 1981 U.S.C.C.A.N. 396, 531; H.R. Rep. No. 97-158, at 137 (1981) and the statements on the floor of the Senate o f Senators Armstrong and G am and at 127 Cong. Rec. 7912 and 13,608 (1981). See also Housing and Community Development Amend­ ments o f 1981: Hearings on S. 1022 and S. 1074 Before the Subcomm. on Housing and Urban Affairs o f the Senate 118 Eligibility o f Citizens o f Freely Associated States fo r HUD Financial Assistance siding in the United States under section 141 of the Compact are not present “ illegally” as that term is used in ordinary English. Although these arguments are not without force, we conclude that in the end they do not overcome the specificity of the statutory text. While the principle expressio unius est exclusio alterius is by no means an invariably accurate guide to statutory construction, in this case we believe that it supports what is in any case the most natural reading of the statute’s language. Section 214 places a blan­ ket prohibition on HUD financial assistance to aliens and then enumerates specific exceptions to that prohibition. Nothing in the language of any of the exceptions suggests that one of them is intended to be a catchall covering other, related cat­ egories of persons, while the detail with which Congress described the exceptions to the general prohibition points to the conclusion that Congress intended to define with precision the exceptions it was creating to the general rule. The argument that the text and legislative history show that Congress could not have meant to deny HUD benefits to aliens whose presence in this country is not “ illegal,” furthermore, ignores the fact that Congress expressly stated that an open-ended list of legally-present aliens are covered by the section 214 prohibi­ tion. See 42 U.S.C. § 1436a(a)(l) (noting that the provision covers “ among others , alien visitors, tourists, diplomats, and students who enter the United States tempo­ rarily with no intention of abandoning their residence in a foreign country” ) (em­ phasis added).6 The Government of the Federated States of Micronesia, one of the Freely Asso­ ciated States, argues that applying section 214’s prohibition to citizens of the Free­ ly Associated States would violate section 172(a) of the Compact which provides: (a) Every citizen of [Palau,] the Marshall Islands or the Federated States of Micronesia who is not a resident of the United States shall enjoy the rights and remedies under the laws of the United States enjoyed by any non-resident alien. Section 172(a), however, does not appear to apply in the present context. Section 172(a) concerns the rights of citizens of the Freely Associated States who do not reside in the United States and requires that their rights under United States law be equal to those enjoyed by any other non-resident alien. Aliens not residing in the United States cannot receive HUD financial benefits, see 42 U.S.C. § 1436a(a) (HUD assistance prohibited unless the “ alien is a resident” ), and thus the application of section 214 to bar assistance to Freely Associated States citizens does not treat them less favorably than other non-resident aliens. Comm, on Banking, Housing, and Urban Affairs, 97th Cong. 443 (1981) (Statement of Sen. Armstrong); id. at 508 (Statement o f Henry Eschwege, a witness from the General Accounting Office). 6 The quoted language undercuts any claim that the references to “ illegal aliens” in the legislative history dem ­ onstrate that the statutory prohibition is limited to persons whose presence in the United States is contrary to United States law. 119 Opinions o f the Office o f Legal Counsel in Volume 20 The conclusion that in the several states section 214 bars HUD financial assist­ ance to citizens of the Freely Associated States who have entered the United States pursuant to section 141 of the Compact seems harsh, and is perhaps anomalous in light of Congress’s exclusion from the section 214 ban of most other categories of aliens who may lawfully remain within the United States indefinitely. However, we do not think that this conclusion leads to the sort of “ ‘absurd or futile results . . . plainly at variance with the policy of the legislation as a whole,’ ” Pauley v. B ethenergy Mines, Inc. 501 U.S. 680, 704 (1991) (citation omitted), that would justify a departure from the apparent meaning of the statutory text. The “ policy of [section 214] as a whole” is to deny certain benefits to aliens as a general rule, while specifying exceptions to that rule. Citizens of the Freely Associated States whose residence in the United States rests on section 141 of the Compact are not within any of the specified exceptions and thus are subject to the general rule. II. Our general conclusion in part I does not in itself resolve the question of section 214’s application to citizens of the Freely Associated States present in Guam and the Commonwealth of the Northern Mariana Islands. Guam. Section 3(b)(7) of the United States Housing Act of 1937 defines the term “ State” as follows: The term “ State” includes the several States, the District of Colum­ bia, the Commonwealth of Puerto Rico, the territories and posses­ sions of the United States, the Trust Territory of the Pacific Islands, and Indian tribes. 4 2 'U.S.C. § 1437a(b)(7). This definition indicates that Congress intended that the United States Housing Act, including section 8, apply to the area set forth in that definition. Since Guam is a territory of the United States, see section 3 of the Organic Act of Guam, 48 U.S.C. § 1421a, section 8 of the United States Hous­ ing Act applies to Guam. Section 214, on the other hand, does not contain a definition of its geographic scope, and does not provide specifically that its prohibition on financial assistance extends to aliens living in a territory. Nevertheless, it is our conclusion that the geographic reach of section 214 is coextensive with that of the Housing Act. This conclusion is based on three considerations. First, the text of section 214 does not draw any distinction between aliens located in the states and those located in the territories. Second, we have not discovered any other indication of a con­ gressional intent to draw such a distinction. Third, section 214 incorporates by 120 Eligibility o f Citizens o f Freely Associated States fo r HUD Financial Assistance reference the Housing Act of 1937. See 42 U.S.C. § 1436a(b)(l). Consequently, in the absence of any showing to the contrary, the geographic coverage of section 214 is the same as that of the statute which it incorporates. The prohibition of section 214 thus applies to assistance benefiting aliens residing in Guam. The Commonwealth o f the Northern Mariana Islands. The Commonwealth of the Northern Mariana Islands (“ CNMI” ) is a territory of the United States, but deter­ mining whether a federal law applies to the CNMI requires a different analysis from that which is applied to Guam. In 1974, when section 8 of the Housing Act was enacted, the Northern Mariana Islands were a District of the Trust Territory of the Pacific Islands. Section 8 thus was applicable to the Northern Mariana Islands pursuant to section 3(b)(7) of the Housing Act of 1974.7 In 1976, the United StateS and the Northern Mariana Islands concluded a Cov­ enant to establish the Commonwealth of the Northern Mariana Islands under the sovereignty of the United States. Pub. L. No. 94-241, 90 Stat. 263 (1976) (codi­ fied as amended at 48 U.S.C. § 1801 note (1994)). The Covenant became effective in relevant part in 1978. Section 502(a) of the Covenant was designed “ to provide a workable body of law when the new government of the Northern Mariana Is­ lands becomes operative.” S. Rep. No. 94-433, at 76 (1975).8 Section 502(a) provides in relevant part that the laws that provide federal services and financial assistance programs, as they apply to Guam, that are in existence on the effective date of section 502,9 and subsequent amendments to such laws, apply to the CNMI, to the same extent that they apply to Guam. Section 8 of the United States Housing Act thus is applicable to the CNMI under section 502(a)(1) because it provides financial assistance and was applicable to Guam on January 9, 1978.10 Although section 214 was enacted after section 502(a) became effective, it is ap­ plicable to the CNMI because it is a subsequent amendment to the Housing A ct.11 7 The authority o f Congress to enact legislation applicable to the Trust Territory was based on article 3 o f the Trusteeship Agreement o f July 18, 1947, pursuant to which the United States could apply to the trust territory, subject to any modifications which the administering authority may consider desirable, such o f the laws o f the United States as it may deem appropriate to local conditions and requirements. Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, art. 3, 61 Stat. 3301, 3302, 8 U.N.T.S. 189, 192. 8 It should be noted, however, that section 502 deals only with the original introduction o f federal law to CNMI. Subsequent congressional legislation applicable to the CNMI is governed by section 105. ’ Section 502(a) became effective on January 9, 1978. Proclamation No. 4534, 3 C.F.R. 56 (1978), reprinted in 48 U.S.C. § 1801 note (1994). 10This conclusion does not change even if we assume that section 8 o f the Housing Act is not a law providing financial assistance within the meaning o f section 502(a)(1). Section 502(a)(2) renders applicable other federal laws “ which are applicable to Guam and which are o f general application to the several States as they are applicable to the several States.** Section 8 would then be applicable to the CNM I as a law applicable to Guam which is o f general application to the States. 11 Under section 503(a) o f the Covenant, the immigration and naturalization laws of the United States are not at present applicable to the CNMI. However section 503(a) does not render inapplicable to the CNMI all federal legislation that somehow affects aliens, but only those statutes that relate to the immigration o f aliens and related Continued 121 Opinions o f the Office o f Legal Counsel in Volume 20 III. Construing section 214 to apply to citizens of the Freely Associated States present in the United States is arguably in tension with the express exception of most other categories of lawful alien residents from section 214’s scope. How­ ever, we do not think that this tension is sufficient to overcome the plain meaning of the statutory text, and we do not believe that the legislative history of which we are aware permits a departure from the text. If the text of section 214 does not reflect Congress’s wishes, the remedy is legislative. We therefore conclude that the Secretary may not make financial assistance, including assistance under section 8 of the United States Housing Act of 1937, available for the benefit of citizens of the Freely Associated States who have entered Guam or the Com­ monwealth of the Northern Mariana Islands as non-immigrants pursuant to section 141 of the Compact of Free Association. H. JEFFERSON POWELL D eputy Assistant Attorney General Office o f Legal Counsel issues such as the exclusion and deportation o f aliens. To the extent that section 503(a) is relevant, it supports our conclusion that section 214, which does not address issues such as immigration and exclusion, applies to the CNM I. 122

Write a legal research memo on the following topic.

Whether Canteen Service Provided Through the Veterans’ Canteen Service Is Exempt From Review Under the Federal Activities Inventory Reform Act of 1998 Canteen service provided through the Veterans’ Canteen Service is not exempt from review under the Federal Activities Inventory Reform Act of 1998. January 31, 2003 MEMORANDUM OPINION FOR THE DEPUTY DIRECTOR FOR MANAGEMENT OFFICE OF MANAGEMENT AND BUDGET You have asked for our opinion whether canteen service provided through the Veterans’ Canteen Service (“VCS”) is exempt from review under the Federal Activities Inventory Reform Act of 1998, Pub. L. No. 105-270, 112 Stat. 2382 (“FAIR Act”). As interpreted by the Office of Management and Budget (“OMB”), the FAIR Act requires each Executive Branch agency to determine whether nongovernmental functions currently performed for the agency by the government could be performed more cost-effectively in the private sector. The Department of Veterans Affairs (“VA”) believes that VCS canteen service is exempt from this cost-comparison process. See Letter for Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, from Tim S. McClain, General Counsel, Department of Veterans Affairs, Re: Veterans’ Canteen Service and the FAIR Act (Dec. 11, 2002) (“VA Letter”). We have considered VA’s arguments and conclude that VCS canteen service is not exempt. I. In 1946, Congress established the VCS “as an independent unit in the [VA],” 38 U.S.C. § 7808 (2000), “for the primary purpose of making available to veterans of the Armed Forces who are hospitalized or domiciled in hospitals and homes of the [VA], at reasonable prices, articles of merchandise and services essential to their comfort and well-being,” id. § 7801 (2000); see also id. § 7803 (2000) (“canteens at hospitals and homes of the [VA] shall be primarily for the use and benefit of veterans hospitalized or domiciled at such hospitals and homes”). In particular, the VCS statute provides that the VA Secretary shall “establish, maintain, and operate canteens where deemed necessary and practicable at hospitals and homes of the [VA] and at other [VA] establishments where similar essential facilities are not reasonably available from outside commercial sources.” Id. § 7802(1) (2000). It vests the Secretary with additional authority needed to carry out this function. See id. § 7802(2)–(11). 34 Canteen Service Under the Federal Activities Inventory Reform Act of 1998 The FAIR Act was enacted in 1998 “[t]o provide a process for identifying the functions of the Federal Government that are not inherently governmental functions.” 112 Stat. at 2382. The FAIR Act generally defines the term “inherently governmental function” as “a function that is so intimately related to the public interest as to require performance by Federal Government employees,” FAIR Act, § 5(2)(A), and it states that that term “does not normally include . . . any function that is primarily ministerial and internal in nature (such as . . . . operation of cafeterias),” id. § 5(2)(C)(ii). Section 2(a) of the FAIR Act provides that each fiscal year “the head of each executive agency shall submit to [OMB] a list of activities performed by Federal Government sources for the executive agency that, in the judgment of the head of the executive agency, are not inherently governmental functions.” Section 2(d), entitled “Competition Required,” states in part: Each time that the head of the executive agency considers contracting with a private sector source for the performance of [a listed] activity, the head of the executive agency shall use a competitive process to select the source (except as may otherwise be provided in a law other than this Act, an Executive order, regulations, or any executive branch circular setting forth requirements or guidance that is issued by competent executive authority). Section 2(d) also directs OMB to “issue guidance for the administration of this” process. Pursuant to section 2(d)’s directive, OMB revised Circular A-76 (“A-76”) and its Supplement to A-76. A-76 implements the FAIR Act by mandating that “the Government shall not start or carry on any activity to provide a commercial product or service if the product or service can be procured more economically from a commercial source.” A-76, ¶ 5(c). This general prohibition does not apply under the conditions specified in paragraph 8 of A-76—where, for example, “no commercial source is capable of providing the needed product or service”; “Government performance of a commercial activity is required for national defense reasons” or “would be in the best interests of direct patient care” at hospitals operated by the Government; or where studies show that “the Government is operating or can operate the activity on an ongoing basis at an estimated lower cost than a qualified commercial source.” Id. ¶ 8. It also does not apply “when contrary to law, Executive Orders, or any treaty or international agreement.” See id. ¶ 7(c)(1). A-76 defines a “commercial activity” as “one which is operated by a Federal executive agency, . . . which provides a product or service that could be obtained from a commercial source,” and which does not “meet the definition of an inherently Governmental function.” Id. ¶ 6(a). In terms virtually identical to the FAIR Act, it defines an “inherently Governmental function” as “a function which is so intimately related to the public interest as to mandate performance by Government employees.” Id. ¶ 6(e). 35 Opinions of the Office of Legal Counsel in Volume 27 II. VA argues that VCS canteen service is exempt from the requirements of the FAIR Act, as implemented by A-76. VA does not assert that canteen service is an inherently governmental function or that it meets any of the conditions specified in paragraph 8 of A-76. Instead, VA maintains that application of the FAIR Act “would be inconsistent with the plain language, as well as the legislative history, of the VCS statute.” VA Letter at 1. That is, VA essentially claims that canteen service is exempt from the competitive process of A-76 because subjecting canteen service to that process would violate the VCS statute and thus be “contrary to law” under paragraph 7(c)(1) of A-76.1 We therefore address whether the competitive process provided by A-76 conflicts with the VCS statute. The VCS statute provides that the VA Secretary shall “establish, maintain, and operate canteens where deemed necessary and practicable at hospitals and homes of the [VA] and at other [VA] establishments where similar essential facilities are not reasonably available from outside commercial sources.” 38 U.S.C. § 7802(1) (emphasis added). VA argues, with considerable force, that the second italicized “where” clause modifies only “other [VA] establishments,” not “hospitals and homes of the [VA].” But even if we were to read the second “where” clause in this way, the first “where” clause—“where deemed necessary and practicable”—plainly qualifies the Secretary’s obligation to operate canteens at VA hospitals and homes. We believe that the question whether VCS canteen service at VA hospitals and homes is “necessary and practicable,” far from precluding consideration of competitive alternatives, is plainly broad enough to permit such consideration. VA apparently reads this same provision to mean that VA must itself establish and operate canteens at VA hospitals and homes where the Secretary deems them to be necessary and practicable, “regardless of the reasonable availability of similar facilities in the private sector.” VA Letter at 4. Under this view, VA would be required to run a canteen itself, even if contracting out would be dramatically less expensive. Indeed, if, in a given hospital, the Secretary were to deem a canteen to be necessary but prohibitively costly (and hence not practicable), VA could neither establish a canteen itself nor permit a cost-effective private party to do so. In short, veterans in such a hospital would be deprived entirely of canteen services. Thus, VA’s view would produce absurd results that would undermine the stated purpose of the VCS statute. See 38 U.S.C. § 7801 (stating that the “primary 1 We note that the FAIR Act might be read to require cost comparisons only when an agency head “considers contracting with a private sector source for the performance of [a listed] activity.” FAIR Act § 2(d). On that reading, the agency head, by never considering such private sector contracting, could avoid triggering any obligation on the part of his agency to engage in cost comparisons. OMB, however, in the exercise of its authority to implement the FAIR Act, has rejected this interpretation, see A-76, ¶ 9(e) (requiring consideration “of all existing in-house commercial activities”) (emphasis added), and VA does not dispute this point. 36 Canteen Service Under the Federal Activities Inventory Reform Act of 1998 purpose [of the VCS statute is to] mak[e] available to veterans of the Armed Forces who are hospitalized or domiciled in hospitals and homes of the Department, at reasonable prices” certain essential merchandise). VA also argues that canteens should not be considered as individual units, because “[s]eparating canteens in this fashion would dilute the operational control contemplated in the VCS law,” and interfere with the cross-subsidization that enables certain canteens to survive. VA Letter at 6. We are unable to locate any textual support in the VCS statute for the notion that all canteens should be considered as a single unit. Indeed, the pivotal language of section 7802(1), requiring the Secretary to establish canteens “where deemed necessary and practicable,” appears to contemplate a location-by-location decision process.2 We further note that although some legislative history may suggest that Congress intended the VCS to be financially self-sustaining, see, e.g., S. Rep. No. 79-1701, at 4 (1946), the VCS statute explicitly authorizes appropriations needed to run VCS, see 38 U.S.C. § 7804 (2000), and requires VCS to submit estimates of any funds it may need “to restore any impairment of the revolving fund resulting from operations of the current fiscal year,” id. § 7806 (2000). Although the VCS statute does contemplate financial interdependence among individual VCS canteens, nothing in the statute supports VA’s conclusion that this interdependence precludes contracting out to the private sector where appropriate. III. We conclude that VCS canteen service is not exempt from the FAIR Act’s competitive process. M. EDWARD WHELAN III Principal Deputy Assistant Attorney General Office of Legal Counsel 2 Nor does the legislative history on which VA relies run counter to this conclusion. To say that the VCS “as a whole is to function as a unit,” VA Letter at 4 (quoting S. Rep. No. 79-1701, at 5 (1946)), is not to say that every canteen operated in a VA facility is part of that unit. 37

Write a legal research memo on the following topic.

The Attorney General’s Role as Chief Litigator for the United States [The following m em orandum describes the developm ent and present scope of the Attorney G eneral's role in representing the United States and its agencies in litigation. It discusses the policy reasons for the centralization of litigation authority in the D epartm ent of Justice, and analyzes the A ttorney G eneral’s relationship with client agencies. It also touches on the Attorney G eneral’s authority to settle and com prom ise cases, and on his authority over litigation in international courts. It concludes that, absent clear legislative directives to the contrary, the Attorney G eneral has plenary authority and responsibility over all litigation to which the United States or one of its agencies is a party, and that his discretion is circum scribed only by the P resident’s constitutional duty to “ take Care that the Laws be faithfully executed."] January 4, 1982 M EM ORANDUM OPINION FOR TH E ATTORNEY GENERAL You have asked this Office to outline the role and responsibilities of the Attorney General in representing the United States in litigation in which the United States, or a federal agency or departm ent, is a party. In particular, you asked that we consider the Attorney G eneral’s authority and responsibility to make decisions with respect to litigation, even if those decisions may conflict with the views, desires, or legal analyses of other departments or agencies o f the United States, including those which may be “clients” in the particular litigation. Litigation involving agencies which have been granted express exclusive au­ thority by C ongress to conduct their own litigation is not within the scope of this m em orandum .1 Rather, the focus of this memorandum is litigation involving 1 C ircum stances in w hich the A ttorney G eneral lacks supervisory authority ov er litigation on b eh a lf o f the U n ited States include ( I ) L itigation in U nited S tates courts w here the A ttorney G eneral has no authority to determ ine w ho shall represent the U nited States, such as the U nited States Tax C ourt (26 U S -C . § 7452 specifies that the U nited States shall be represented by the C h ie f Counsel for the Internal Revenue Service o r his delegate) and the U n ited States C ourt of M ilitary A ppeals (10 U S C § 870 specifies that the U nited States shall be represented by the Ju d g e Advocate G eneral o r his delegate); (2) Litigation involving independent regulatory agencies w hich have been g iven the express statutory authority to conduct their ow n litigation using agency attorneys, e g ., the N ational L ab o r R elations Board (29 U S C § 154(a)); the Federal Power Com m ission (16 U .S .C . § 825m (c) pow er transferred to Federal Energy R egulatory C om m ission (42 U .S C . § 7172(a)(2)(A ) (Supp IV 1980)), the Interstate C o m m erce C om m ission (49 U .S .C . § 16(11) (S upp IV 1980)); and (3) Litigation involving Executive B ranch agencies w h ich have been granted independent litigating authority by C ongress, e g , the S ecretary o f L abor is au th o n zed to ap p o in t attorneys to represent the Secretary o r the Benefits Review Board in actions un d er the L on g sh o rem en ’s and H arb o r W orkers’ C om pensation A ct, except in the Suprem e C ourt, under 33 U S .C . § 921a. T here are also circum stances in w hich certain agencies have assum ed, notw ithstanding their lack o f ex p ress statutory authority, full responsibility for their ow n trial and appellate litigation, so far w ithout ob jectio n from the A ttorney G eneral. T h ese agencies, such as the Tennessee Valley A uthority and the Federal D eposit In su ran ce C orporation, have not been required to subm it to the A ttorney G eneral's su pervisory authority, apparently for C o ntinued 47 those agencies whose litigating authority is clearly subject to the Attorney G en eral’s direction, or whose statutory grants of authority are ambiguous or insufficient to remove them from the A ttorn ey General's supervision. We conclude that, absent clear legislative directives to the contrary, the Attorney G eneral has full plenary authority over all litigation, civil and criminal, to w hich the U nited States, its agencies, o r departments, are parties. Such authority is rooted historically in our com mon law and tradition, see Confiscation C a ses, 74 U . S . (7 W all.) 4 5 4 ,4 5 8 -5 9 (1868); The G ray Jacket, 72 U . S . (5 W all.) 370 (1866) and, since 1870, has been given a statutory basis. See 5 U .S.C . § 3106, and 28 U .S .C . §§ 516, 519. See gen erally U nited States v. San Jacinto Tin C o ., 125 U .S. 273 (1888). The Attorney General’s plenary authority is circum scribed only by the duty im posed on the President under Article II, § 3 of the C onstitution to “take Care that the Laws be faithfully executed.” I. H istorical Development of the Role of the Attorney General Plenary pow er over the legal affairs of the United States was vested in the Attorney G eneral when the Office of the Attorney General of the United States was first created by the Judiciary Act of 1789. Act of September 24, 1789, ch. 20, § 35, 1 Stat. 9 2 .2 T he Attorney G eneral’s statutory authority to conduct litigation to which the U nited States, its departm ents, o r agencies, is a party was more fully developed by C ongress in 1870, in the sam e legislation that provided for the creation of the D epartm ent of Justice. A c to f J u n e 2 2 ,1 8 7 0 ,ch. 1 5 0 ,16Stat. 162. Prior to 1870, however, the Attorney General’s authority in litigation matters involving the U nited States had been recognized by the Suprem e Court. In The G ray Jacket, 72 U .S . (5 W all.) 370 (1866), the C ourt held that no counsel would be heard for the U nited States in opposition to the views of the Attorney General. In the C o n ­ fisca tio n C a ses, 74 U .S. (7 W all.) 454 (1868), the Court concluded that: W hether tested, therefore, by the requirem ents of the Judiciary A ct, or by the usage of the governm ent, or by the decisions of this historical reaso n s, so m e o f w hich relate to th e ir financial independence as governm ent corporations. See D aniel J M eador, A ssista n t A ttorney G eneral, Office fo r Im provem ents in th e Adm inistration o f Justice, D raft M em orandum to the A ttorney G eneral and th e Assistant A ttorneys G eneral Re: G overnm ent Relitigation Policies (M ay 21, 1979), M em orandum to th e A ttorney G eneral from W illiam D . R uckelshaus (M ar 5, 1970) The operative statutes in these tw o c a s e s , 16 U S C § 831c(h), 83lx (T V A ) and 12 U S C § 1817(g) (FD1C), m erely give the ag en cies the au thority to sue and be sued— not to litigate independently of th e D epartm ent o f Justice. Presum ably, the A ttorney G en eral m ay reassert his supervisory authority at any tim e. 2 S ectio n 35 o f th e Ju d iciary Act provided in pertinent p art that [T ]here shall . . be appointed a m e e t person, learned in the law, to act as attorney-general for the U nited S tates, w ho shall be sworn o r affirm ed to a faithful execution of his office; w h o se du ty it shall be to prosecute an d conduct all suits in the S uprem e C ourt in w hich the United S lates shall be co n c ern ed , and to give his advice and opinion upon questions o f law when required by the P resident o f the U nited States, or w h en requested by th e heads of any o f the d ep artm en ts, touching an y m atters that m ay concern th e ir departm ents. “ D istrict a tto rn e y s," now know n as “ U nited States A tto rn ey s," w ere to be appointed to co n d u c t litigation in the low er co u rts o f the U nited S tates but w ere not placed under th e A ttorney G en eral’s authority until 1861 A ct of A ug. 2 , 1861, ch 37, 12 S tat 285. F ro m 1820 until 1861, the “district attorneys” w ere supervised by the D ep artm en t o f the T reasury. A ct of May 15, 1820, ch 107, 3 Stat 592 48 court, it is clear that all such suits, so far as the interests of the United States are concerned, are subject to the direction, and within the control of, the Attorney-General. 74 U .S. (7 Wall.) at 458-59. The' 1870 Act established the Department of Justice and designated the Attorney General as its chief legal officer. The Act provided that certain specified “solicitors” performing legal functions within the various agencies “shall be transferred from the Departments with which they are now associated to the Departm ent of Justice, . . . and shall exercise their functions under the supervi­ sion and control of the head of the Department of Justice.” ( § 3 ,1 6 Stat. 162.)3 The Act also authorized the Attorney General to designate any officer o f the Departm ent of Justice, including himself, to conduct and argue any case in which the government is interested, in any court of the United States, whenever he deems it necessary for the interest of the United States. (§ 5, 16 Stat. 162.) In addition, the Act gave the Attorney General supervisory authority over the conduct and proceedings of the various attorneys for the United States in the respective judicial districts, “and also of all other attorneys and c o u n s e llo rs employed in any cases or business in which the United States may be concerned.” (§ 16, 16 Stat. 164.) And finally, the Act forbade the Secretaries of the Executive D epartm ents to employ other attorneys or outside counsel at government ex­ pense, but “shall call upon the Department of Justice . . ., and no counsel or attorney fees shall hereafter be allowed to any person . . ., besides the respective district attorneys . . ., for services in such capacity to the United States, . . . unless hereafter authorized by law, and then only on the certificate of the Attorney-General that such services . . . could not be performed by the AttorneyG eneral, . . . or the officers of the Department of Justice.” (§ 17, 16 Stat. 164.) 16 Stat. 162. The initial motivation for this legislation was the desire to centralize the conduct and supervision of all litigation in which the government was involved, as well as to eliminate the need for highly paid outside counsel when governmenttrained attorneys could perform the same function. Other objectives of the legislation that were advanced in the congressional debates were to ensure the presentation of uniform positions with respect to the laws of the United States (“a unity of decision, a unity of jurisprudence . . . in the executive law of the United States”),4 and to provide the Attorney General with authority over lower court proceedings involving the United States, so that litigation would be better handled on appeal, and before the Supreme Court. S ee Cong. Globe, 41st C ong., 2d Sess., Pt. IV, 3035-39, 3065—66 (1870). See gen erally Bell, The Attorney G eneral: The Federal G overnm ent’s C h ief L aw yer an d C h ief Litigator, o r O ne Am ong M any?, 46 Fordham L. Rev. 1049 (1978); Key, The L egal Work o f the F ederal Governm ent, 25 Va. L. Rev. 165 (1938). 3 Prior to the A ct, C ongress had provided for the existence of “solicitors” in the various dep artm en ts and ag en cies, w ho were responsible for the legal affairs o f their respective departm ents See generally Key, The Legal Work o f the Federal Government, 25 Va L Rev 165 (1938). 4 C ong G lobe, 41st C ong . 2d Sess , Pt IV, 3035, 3036 (1870) 49 T he Suprem e C ourt considered this legislation in U nited States v. San Jacinto Tin C o ., 125 U .S. 273 (1888) and concluded that the Attorney General was “undoubtedly the officer who has charge of the institution and conduct of the pleas of the U nited States, and o f the litigation which is necessary to establish the rights o f the governm ent.” Id. at 279. Emphasizing the centralizing function of the D epartm ent o f Justice and the Attorney G eneral, the Court reasoned that the pow er to control government litigation must lie somewhere— that there must exist som e officer with authority to decide when the United States should sue, and to oversee the execution of such a decision— and that the Attorney General was designated such appropriate officer, in the Judiciary Act of 1789, by reference to the historical practice in England.5 125 U .S. at 278-80. In 1921, the Court added that the Attorney G eneral’s authority to conduct such litigation could be affected only by clear legislative direction to the contrary. Kern R iver C o. v. U nited S tates, 257 U .S . 147, 155 (1921). See also 21 Op. A tt’y Gen. 195 (1895). (The Secretary of the Navy was not warranted in employing counsel in a foreign country to institute suit in behalf of the United States, but should have referred the m atter to the Department of Justice, “which is charged with the duty of determ ining when the United States shall sue, for what it shall sue, and that such suits shall be brought in appropriate cases,” id. at 198.) Lower courts reached sim ilar conclusions with respect to subsequent re­ codifications of the 1870 legislation. The Court of Claims summarized the legislation in the following manner: These provisions are too comprehensive and too specific to leave any doubt that Congress intended to gather into the Depart­ m ent o f Justice, under the supervision and control of the AttorneyG eneral, all the litigation and all the law business in which the U nited States are interested, and which previously had been scattered am ong d ifferen t public officers, departm ents, and branches of the Government, and to break up the practice of frequently employing unofficial attorneys in the public service. P erry v. U n ited S tates, 28 Ct. Cl. 483, 491 (1893). Speaking for the Second C ircuit C ourt of Appeals, Judge Learned Hand emphasized the centralizing function o f the Attorney G eneral’s role as chief litigator for the United States and the necessity that that role be committed exclusively to the Attorney General: The government has provided legal officers, presumably com ­ p e te n t, ch arg ed with the d u ty of protecting its rights in its 5 T h is reference is to th e origin of the office of A ttorney G eneral, w hich was first created in the Judiciary A ct o f 1789, an d derived its function from the ro le of the A ttorney G eneral in E ngland. The C ourt stated. T h e ju d ic ia ry act o f 1789 . w hich first created the office of A ttorney G en eral, w ithout any very accurate definition o f his powers, in using the words that “ there shall also be appointed a m eet perso n , learned in t h e law, to act as A ttorney G eneral for the U nited S tates," 1 Stat. 93, c. 21, § 35, m ust have had reference to the sim ilar office w ith the sam e designation existing under the English law. A nd tho u g h it has been said th a t there is no com m on law o f the U nited States, it is still quite true that w hen acts o f Congress u se words w hich are fam iliar in the law o f E ngland, they are supposed to be used w ith reference to their m eaning in that law. 125 U .S . at 280 50 courts. . . . Congress, having so provided for the prosecution of civil suits, can scarcely be supposed to have contemplated a possible duplication in legal personnel. The cost of this is one consideration, but far more important is the centering of respon­ sibility for the conduct of public litigation. The Attorney General has powers of “general superintendence and direction” over dis­ trict attorneys (title 5, U.S. Code, § 317 [5 USCA § 317]), and may directly intervene to “conduct and argue any case in any court o f the United States” (title 5, U .S. Code, § 309 [5 USCA § 309]). . . . Thus he may displace district attorneys in their own suits, dism iss or compromise them, institute those which they decline to press. N o such system is capable o f operation unless his pow ers are exclusive, or if the D epartm ents m ay institute su its which he cannot control. H is pow ers m ust be coextensive with his duties. Sutherland v. International Insurance C o., 43 F.2d 96 9 ,9 7 0 (2d Cir. 1930), cert, denied, 282 U .S . 890 (1930) (emphasis added). In 1933, as part of a crusade to consolidate as much of the governm ent’s business as necessary to increase operating efficiency, President Roosevelt issued an executive order to supplement the existing legislative mandate o f centralized litigation authority. Executive Order No. 6166 (June 10, 1933), which requires all claims by or against the United States to be litigated by, and under the supervision of, the Department of Justice, is still in effect. The order provides in pertinent part: Claim s by or against the U nited States. The functions of prosecuting in the courts of the United States claims and demands by, and offenses against, the Government of the United States and of defending claims and dem ands against the Government, and of supervising the work of United States attorneys, marshals, and clerks in connection therewith, now exercised by any agency or officer, are transferred to the D epart­ ment of Justice. As to any case referred to the Department of Justice for pros­ ecution or defense in the courts, the function of decision w hether and in what manner to prosecute, or to defend, or to com prom ise, or to appeal, or to abandon prosecution or defense, now exercised by any agency or officer, is transferred to the Departm ent of Justice. Reprinted in 5 U .S.C . § 901 note (1976). II. Present Statutory Bases of the Attorney General’s Authority These attempts to centralize the litigating function and authority of the federal government in the Department of Justice, with the Attorney General at its helm , 51 are now codified in 5 U.S.C. § 3 1 06and 28 U .S .C . §§ 515-516. Section 3106 of Title 5 forbids the employment of outside counsel by executive agencies for litigation involving the United States unless Congress has provided otherwise, requiring instead that the m atter be referred to the Department of Justice.6 A lthough we have found no case law interpreting this provision, the language of § 3106 appears to limit the prohibition of payment to outside counsel for litigation, and litigation-related matters. However, in view of the centralization and uniform ity purposes underlying the 1870 Act and its progeny, we believe that, absent statutory authority to the contrary, the prohibition should be broadly interpreted to preclude payments to non-agency or non-Justice Department attorneys for (legal) advisory functions as well. See Scalia, Assistant Attorney G eneral, Office of Legal Counsel, Letter to Hoffman, General Counsel, D epart­ m ent of D efense (Mar. 2 6 ,1975).7 See a lso B oyle v. U n itedS tates, 309F .2d399, 402 (Ct. Cl. 1962) (quoting from a 1957 letter by the Comptroller General: “ [I]n the absence o f urgent and com pelling reasons, a Government agency may not procure from an independent contractor services normally susceptible of being perform ed by Government em ployees.”). Nevertheless, the Attorney General may em ploy outside counsel to perform legal duties under his direction. Sections 515 and 543 of Title 288 authorize the Attorney General to commission “special attorneys” to assist United States Attorneys, or to “conduct any kind of legal proceeding, civil or criminal, . . . which U nited States attorneys are authorized by law to conduct . . . 6 5 U S C § 3106 provides in pertinent p a rt that. [ejx cep t as otherw ise authorized b y law, the head o f an E xecutive d epartm ent o r m ilitary d e p a rtm e n t m ay not em ploy an attorney or counsel for th e conduct o f litigation in w h ich the U nited S tates, an agency, o r em ployee th e re o f is a party, or is interested, o r for the securing o f evidence therefor, b u t shall refer the matter to the D epartm ent o f Justice. 7 A lthough the S calia letter w as written in response to an inquiry regarding the use o f o u tside counsel by an ag en cy in co n n e ctio n w ith th e investigation o r prosecution of adm inistrative claim s, the p rin cip les expressed therein a re broadly applicable In p rohibiting the use o f outside co u n s e l by the several d ep artm en ts, C ongress concentrated all th e G o v ern m en t’s law business in th e D ep artm en t of Ju stice— not on ly litigation, b ut also advisory functions. T h is w as thought to be n ec essary in order to provide fo r uniform legal interpretations th ro u g h o u t the E xecutive branch . . . C ongress later departed from the principle that all legal activ ities o f the G overnm ent were to be carried out by the D epartm ent of Ju stice; subsequent le g islatio n , authorizing and funding agency legal staffs, perm itted legal m atters not involving litigation to be han d led in the v arious agencies. T h o se changes w ere taken into account when C o n g re ss, in 1966, codified the vario u s provisions o f th e law go in g back to the D epartm ent o f Ju stice A ct o f 1870. S ee, e.g , H islo ric a la n d Revision N otes to 5 U .S .C 3 1 0 6 a n d 2 8 U S C 516. T h e re is, how ever, no indicauon o f a C ongressional intent to relax the p ro hibition against en g a g em en t o f outstde counsel by ag e n cies other than th e D epartm ent of Justice. T his principle rem ain s in effect w ith respect to b o th litigation reserved to th e D epartm ent o f Justice and nonlitigative m atters handled w ithin the several agencies. L e tte r at 4-5 (fo o tn o tes and citations o m itte d ) (em phasis added). 8 28 U .S .C . § 515(a), p ro v id e s tn p ertinent part that. [t]he A ttorney G eneral o r any other offic er of the D epartm en t of Ju stice, o r any attorney specially a p pointed by the A ttorney General u n d e r law, may, w h en specifically directed by the A ttorney G e n e ra l, co n d u ct any kind of legal p ro cee d in g , civil o r c rim in a l. . w hich U nited States attorneys are authorized by law to conduct, w h eth e r or not he is a resident o f the district in which the p ro cee d in g is brought 28 U .S .C . § 543 provides: (a) T h e A ttorney G eneral may a p p o in t attorneys to assist United S tates attorneys w hen the public in terest so requires (b ) Each attorney appointed u n d er this section is su b jec t to rem oval by the A ttorney G eneral. 52 Sections 5 15-519 of Title 28 codify the law growing out of the 1870 Act which consolidated the power to conduct litigation involving the United States in the Department of Justice, and granted the Attorney General supervisory authority over such litigation. The principal provisions granting such authority are §§ 516 and 519. Section 516 provides that [e]xcept as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General. Section 519 provides that [e]xcept as otherwise authorized by law, the Attorney General shall supervise all litigation to which the United States, an agen­ cy, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543 of this title in the discharge of their respective duties. However, as with the previous legislative and executive efforts designed to centralize the litigating functions of the United States, these provisions have been undercut by exceptions authorized by Congress which grant agencies or depart­ ments litigating authority independent of the Department of Justice. See Bell, The A ttorn ey G eneral: The F ederal Governm ent's C h ief L aw yer an d C h ief Litigator, or O ne Am ong M any?, 46 Fordham L. Rev. 1049 (1978); M emoran­ dum to the Attorney G eneral, from William D. Ruckelshaus (Mar. 5, 1970); Key, The L egal Work o f the F ederal Governm ent, 25 Va. L. Rev. 165 (1938).9 As of 1978, some 31 Executive Branch and independent agencies were authorized to conduct at least some of their own litigation. Bell, supra, at 1057. Although this memorandum does not address those cases in which agencies have been granted independent litigating authority, the lines between the Attorney G eneral’s au­ thority and that which has been delegated to the agencies have at times been drawn ambiguously, and in those cases, the Attorney General frequently asserts his historic authority over the litigation proceedings. 9 C ongress has thus far m aintained virtually unim paired the A ttorney G eneral's control over the in itiation of crim inal proceedings See, e.g , 15 U S C . § 77t(b) (SEC ), 16 U S C § 825m (a) (FPC). The preservation o f such authority in the A ttorney G eneral is, we believe, sound constitutional policy, in view o f the Executive s co n stitu ­ tional m andate to take care that the laws be executed faithfully. S uch a responsibility carries w ith it the vindication of public rights through the institution of crim inal proceedings against those w ho violate the laws w hich the Executive adm inisters As the Executive s ch ief legal officer, the A ttorney G eneral is singularly suited to carry o ut this responsibility Sim ilarly, the A ttorney G en eral’s authority to conduct cases in the S uprem e C ourt has rem ained u ndiluted Section 518 o f Title 2 8 , w hich reserves the conduct and argum ent in the S uprem e C o u rt of suits and ap p e als “ in w hich the U nited States is interested" to the A ttorney G eneral and S olicitor G e n e ra l. does not co ntem plate existing o r future statutory authorizations to the agencies, as do §§ 516 and 519 However. 518 does perm it the A ttorney G eneral to “direct o therw ise,” in particular cases 53 III. Supervisory Authority in the Context of Jointly Conducted Litigation A . P olicy C on sideration s T he policy considerations w hich support the centralization of federal litigating authority in the Department o f Justice, under the supervision of the Attorney G eneral, are many. In addition to the “ unity of decision, unity of jurisprudence” goals that were articulated in the 1870 congressional debates, the centralization of authority and supervision over federal litigation in the Department of Justice m eets several other objectives: (1) the coordination of lower court proceedings, w hich enhances the ability of government lawyers to select test cases presenting the governm ent’s positions in the best possible light; (2) the facilitation of presidential supervision, through the Attorney General, over Executive Branch policies that are implicated in litigation; (3) the allowance for greater objectivity in the filing and handling of cases by attorneys who are not themselves the affected litigants; and (4) the increased effectiveness in the handling of appeals and Suprem e C ourt litigation which results from centralized control over lower court proceedings. S ee generally M em orandum to the Attorney General from W illiam D. Ruckelshaus, Re: Encroachm ents upon the Authority of the Attorney G eneral to Supervise and Control the G overnm ent’s Litigation (Mar. 5, 1970). S ee a lso H arm on, Office of Legal Counsel, Memorandum for the Associate A ttorney G eneral (D ec. 11, 1980). C entralization of federal litigating authority in the Department of Justice, under the supervision of the Attorney G eneral, is vitally necessary to ensure the Attorney G eneral’s proper discharge of his duty to oversee the legal affairs of the U nited States with which Congress has entrusted him. Centralization ensures that the Attorney G eneral is properly informed of the legal involvements of each of the agencies for which he is responsible; supervisory authority permits him to act on that know ledge. In this way, the Attorney G eneral is better able to coordinate the legal involvem ents of each “client” agency with those of other “client” agencies, as well as with the broader legal interests of the United States overall. Yet, while the “client” agencies may be involved, to varying degrees, in carrying out the litigation responsibilities necessary to assist the Attorney General in representing the agency’s particular interests, it is essential that the Attorney General not relinquish his supervisory authority over the agency’s litigation functions, for the Attorney G eneral alone is obligated to represent the broader interests of the Executive. It is this responsibility to ensure that the interests of the United States as a w hole, as articulated by the Executive, are given a paramount position over potentially conflicting interests between subordinate segments of the government of the U nited States which uniquely justifies the role of the Attorney General as the ch ief litigator for the United States. Only the Attorney General has the overall perspective to perform this function. N evertheless, it must be stressed that in exercising supervisory authority over the conduct of agency litigation, the Attorney General will generally defer to the 54 policy judgm ents of the client agency. This deference reflects a recognition of the agency’s considerable expertise in the substantive area with which it is primarily concerned. Strictly speaking, “policy” judgm ents are confined to those substan­ tive areas in which the agency has developed a special expertise and in which the agency is vested by law with the flexibility and discretion to make policy judgm ents. However, it is increasingly the case that policy concerns are im pli­ cated in decisions dealing with litigation strategy, and in such cases, the Attorney General will accommodate the agency’s policy judgm ents to the greatest extent p o s s ib le w ith o u t c o m p ro m is in g th e law, o r b ro a d e r n a tio n a l p o lic y considerations. It is in the context of these dual representation functions— in which there exists inherent potential for conflict between “clients”— that questions of representation arise. Circum stances frequently develop in which the Attorney General and client agencies disagree as to the proper course of the litigation— including strategy, legal judgm ents, settlement negotiations, and policy judgm ents which impact on the litigation. Such circumstances frequently present the question whether the Attorney General should continue to represent the client. The simple answ er is yes. The Attorney General has not only the statutory authority to represent the agencies over whose litigation he exercises supervisory authority, but, indeed, the du ty to do so, “ [e]xcept as otherwise authorized by law.” 28 U .S .C . §§ 516, 519. The Attorney G eneral’s authority and duty to represent these agencies are described more particularly by the specific legisla­ tion which sets forth his and the agencies’ respective litigation responsibilities, and occasionally, in “M em oranda of Understanding” entered into by the Attorney General and specific agencies apportioning such responsibilities. Nevertheless, unlike the private attorney, the Attorney General does not have the option of withdrawing altogether from the representation of client agencies, as long as interests of the United States for which he is held responsible are at stake. However, recognition of the very real difficulties which are posed in the context of litigation jointly conducted by the Attorney General and “client” agencies— particularly in view of the agencies’ greater staffing resources, more intimate fam iliarity with the subject matter of the litigation, greater visibility to the public as a litigant, and more involvement in the day-to-day administration of field offices— tends to suggest that a more practical understanding of the Attorney General’s authority and duty to represent client agencies may be needed. Dis­ tinguishing policy judgm ents from legal judgm ents in litigation matters— the former being primarily the province of the agencies and the latter being reserved to the Attorney General— helps to provide not only a more reasonable and efficient use of governm ent resources, but a workable framework for resolving most disputes that may result in representation crises. Nevertheless, because of his unique responsibilities in representing government-wide interests as well as those of particular “client” agencies, the final judgm ent concerning the best interests of the United States must be reserved to the Attorney General. B. L egislative Exceptions to the A ttorney G en eral’s Authority Although Congress has over the years responded, in varying degrees, to the multitude of pressures exerted by agencies seeking independent litigating au­ 55 thority, the courts have continued to give greater weight to the strong policy objectives w hich recommend centralization. As a result, the “otherwise autho­ rized by law” language creating th e exception to the Attorney G eneral’s authority in 28 U .S .C . §§ 516 and 519 has been narrowly construed to perm it litigation by agencies only when statutes explicitly provide for such authority. S ee M arsh all v. G ib so n ’s P rodu cts. In c., 584 F.2d 6 6 8 ,6 7 6 n. 11 (5th Cir. 1978); IC C v. Southern Railway, 543 F.2d 534, 535-38 (5th Cir. 1976); In re G rand Jury Subpoena of P ersico, 522 F.2d 41 , 54 (2d Cir. 1975); FTC v. Guignon, 390 F.2d 323 (8th Cir. 1968); U n ited S ta tes v. Tonry, 4 33 F. Supp. 620 (E.D . La. 1977). A lthough the legislative history of Sections 516 and 519 is relatively sparse— in fact, the “ history” is contained almost entirely in the “Historical and Revision N otes” prepared by the revisers o f Title 5 in 1966— the courts’ strict interpreta­ tion of these provisions is supported not only by the historical antecedents of these statutes and the policy considerations discussed above, but also by the R eviser’s Notes to the 1966 am endm ents.10 The revisers state, with respect to both Sections 516 and 519, that th e sections were revised to express the effect of existing law, which does permit agency heads, “ with the approval o f Congress, [to employ] attorneys to advise them in the conduct of their official duties. . . .” 28 U .S .C . § 516 note (emphasis added). The revisers further state that “ [t]he words ‘Except as otherwise authorized by law ,’ are added to provide for existing and future exceptions (e.g., section 1037 of title 10).” § 516 note; 28 U .S.C . § 519 note. Thus the revisers have indicated that existing and future grants of litigating authority that are at least as express as the language contained in 10 U .S .C . § 1037 are to be excepted from the Attorney G eneral’s broad grant of authority under §§ 516 and 519 o f Title 28. Section 1037 of Title 10 permits the Secretaries o f the various military departm ents to “employ [private] counsel” for the “representation” of persons subject to the Uniform Code of Military Justice “before the judicial tribunals and administrative agencies” of foreign nations. W hile nothing in the legislative history of § 1037 indicates a congressional intent to create an exception to the predecessors of §§ 516 and 519, Congress made clear in 1966 that the operative language, “the Secretary concerned may employ counsel . . . incident to the representation before . . . judicial tribunals” was sufficient to trigger the exception." See H .R. Rep. No. 1863, 84th C ong., 2d Sess. (1956); S. Rep. No. 2544 , 84th C ong., 2d Sess. (1956). See generally Office o f Legal C ounsel, M em orandum to Peter R. Taft (Aug. 27, 1976). In order to com e within the “as otherwise authorized by law” exception to the Attorney G eneral’s authority articulated in 28 U .S .C . §§ 516 and 519, it is necessary that Congress use language authorizing agencies to employ outside 10 28 U S C §§ 5 1 5 -5 2 6 (1976), Pub L. N o . 89-554, § 4(c), 80 Stat 613 is the m ost recent codification o f the pro v isio n s co n tain ed in the 1870 Act creating the D epartm ent of Justice Prior to 1966, these p rovisions were codified in T itle 5 11 I 0 U S C § 1037 was. adopted in 1956, p r io r to the 1966adoption o f 28 U S C §§ 516 and 5 19, and provides in p ertin en t part: (a) U nder regulations to be prescribed by him , the S ecretary concerned m ay em ploy co u n sel, an d pay counsel fees, co u rt costs, bail, a n d other expenses incident to the representation, before the ju d ic ia l tribunals and adm inistrative agencies o f any foreign nation, o f persons subject to the U niform C o d e o f M ilitary Justice. 56 counsel (or to use their own attorneys) to represent them in court. See, e .g ., 49 U.S.C . § 16(11) (Interstate Commerce Commission); 16 U .S.C . § 825m(c) (Federal Power Commission); 12 U .S.C . § 1464(d)(1) (Federal Home Loan Bank Board); 29 U .S.C . § 154(a) (National Labor Relations Board);12 5 U .S.C . § 7105(h) (Supp. IV 1980) (Federal Labor Relations A uthority).13 However, even agencies to which Congress has granted independent litigating authority may be prohibited from conducting their own litigation in the Supreme Court. See, e .g ., 42 U .S.C . § 2000e-4(b)(2) (Equal Employment Opportunity Commission); 5 U .S.C . § 7105(h) (Supp. IV 1980) (Federal Labor Relations A uthority).14 More ambiguous language, which, for example, authorizes an agency to “sue and be sued,” 15“bring a civil action,” or “ invoke the aid of a court,” has been considered by some courts to be insufficient to confer independent litigating authority. See. e .g ., ICC v. Southern Railway, 543 F.2d 534 (5th Cir. 1976); FTC v. Guignon, ,2 These statutes provide as follows I C C — 4 9 U .S C § 16(11) The C om m ission may employ such attorneys as it finds necessary for proper legal aid and service of the C om m ission or for proper representation o f the public interest*, in investigations made by it . o r to appear fo r or represent the Commission in any case in court. F P C — 16 U S C 8 825m(c)— language substantially sim ilar to that provided for I C C Federal H ome Loan Bank Board— 12 U .S C . 1464(d)(1) The Board shall have pow er to cnforce this section and rules and regulations m ade hereunder In the enforcem ent o f any provision of this section o r rules and regulations made h ereunder . the Board is authorized to act in its ow n nam e and through its own attorneys . . N ational Labor R elations Board— 29 U S .C . § 154(a) Attorneys appointed under this section may. at the direction of the B oard, appearfor and represent the Board in any case in court. (Em phases added ) O f course, these authorizations must be read within the context of the w hole statutory sch em e of which they are a part— in som e instances these agencies are represented by the D epartm ent o f Justice. 13 Language sim ilar to that contained in the statutes cited in n. 12, supra was recently held by the D istrict C o u rt for the D istrict of C olum bia to confer independent litigating authority on the Federal L abor Relations A uth o rity (FLR A), including the litigation o f proceedings u n d er the Freedom of Inform ation A ct, 5 U S C . § 552 See AFGE v Gordon, C A N o. 81-1737 (D D C O ct. 23. 1981) T he statute construed by the court as granting the FLR A independent litigating authority. 5 U S C § 7105(h) (Supp IV 1980), providesExcept as provided in section 518 o f title 28. relating to litigation before the S uprem e C ourt. attorneys designated by the Authority may appear fo r the Authority and represent the Authority in any civil action brought in connection w ith any function carried out by the A uthority pursuant to this title or as otherw ise authorized by law The A ppellate Section of the C ivil D ivision has recom m ended that the D epartm ent o f Justice not ap p eal this decision N evertheless, the D epartm ent has m aintained vigorously in the past, and w ill continue to m aintain, that broad grants o f independent litigating authority, sim ilar to those discussed above, d o not encom pass cases arising under adm inistrative statutes that apply govem m ent-w ide T his view is supported by the strong policy im peratives o f “ unity in the executive law o f the U nited S tates." infra at 5, as well as som e legislative history See H R C o n f Rep N o 539, 95th Cong . 1st Sess. 72 (1977). reporting on the D epartm ent o f Energy O rganization A ct. Pub L No 95 -9 1 . 91 Stat 5 6 5 . w hich established the Federal Energy R egulatory C om m ission 14 42 U S .C § 2000e-4(b)(2) provides Attorneys appointed u n d er this section may, at the direction of the C om m ission, ap p ear for and represent the C om m ission in any case in co u rt, provided that the Attorney General shall conduct all litigation to which the Commission is a parly in the Supreme Court pursuant to this subchapter. 5 U S C § 7105(h) (S upp IV 1980) provides: Except as provided m section 518 c f title 28. relating to litigation before the Supreme Court, attorneys designated by the A uthority m ay appear for the A uthonty and represent the A uthority in any civil action brought in connection w ith any function carried out by the A uthority pursuant to this title o r as otherw ise authorized by law (E m phases added ) 15 T he Office o f Legal Counsel view s “sue and be sued” language as m erely designating the agency as a “ju ral en tity ” w hich m ay sue o r be sued in its ow n nam e, and not as rem oving the ag e n cy ’s representation from the d om ain o f the Department o f Justice pursuant to 28 U S C § § 5 1 6 and 519 See M eador, Draft M em orandum Re G overnm ent R elitigation Policies, supra, at 19, n 51. cuing an interview w ith H M iles Foy III, D epartm ent of Justice. Office of Legal Counsel 57 390 F.2d 323 (8th Cir. 1968). S ee gen erally Harmon, Office of Legal Counsel, M em orandum for the Associate Attorney General (Dec. 11, 1980); Meador, Office for Im provem ents in the Administration of Justice, Draft Memorandum (M ay 2 1 ,1 9 7 9 ); Office of Legal C ounsel, Relationship of Proposed Amendments to the Adm inistrative Procedure Act . . . to the Department of Justice Policy of O pposition to Litigation Power Outside of the Department (Apr. 29, 1974); M em orandum to the Attorney G eneral from W illiam D. Ruckelshaus, supra; but se e SE C v. R obert C ollier & C o ., 76 F.2d 939 (2d Cir. 1935). O ther language which does grant agency attorneys authority to litigate, but provides that such authority shall be exercised under the direction and control of the Attorney G eneral, provides the framework for “M emoranda of Understand­ ing” (M OUs) between the agencies and the Department of Justice, which apportion the litigation responsibilities between the Department and the agen­ cies. S ee, e .g ., 2 9 U .S .C . § 204(b) (Fair Labor Standards Act); the Age Discrim­ ination Em ploym ent Act of 1967, Pub. L. N o. 90-202, 81 Stat. 6 0 2 .16 These m em oranda usually specify both the categories o f cases in which agency counsel may appear and the nature of the Attorney G eneral’s continuing control and supervision over such cases. We believe that the sharing of litigation respon­ sibilities under MOUs is proper, as long as the Attorney General retains ultimate authority over the litigation. Moveover, the rationale underlying these arrange­ m ents is an em inently sensible one. The efficiency and expertise objectives in governm ent litigation are thereby m axim ized, without sacrificing the Attorney G en eral’s statutory role as chief government litigator, and the responsibilities and prerogatives which attach thereto. N evertheless, as a practical matter, MOUs do compromise the Attorney G eneral’s control, if not authority, over the conduct of agency litigation. Agen­ cies eager to control their own litigation may proceed to negotiate settlement agreem ents, send out “no action” letters, depose witnesses, and otherwise represent the agency’s position to the public without consultation or assistance from the Attorney G eneral, leaving the Attorney General with afa it accom pli and a potential equitable barrier to his subsequent assertion of control over the litigation.17 Such occurrences effectively undermine the Attorney General’s 16 29 U .S .C . § 204(b) perm its D epartm ent o f Labor attorneys to “ appear for and represent” the A dm inistrators of the FL S A and A D E A “ in any litigation," but subjects all such litigation “to the direction and control of the A ttorney G eneral ” T he S ecretary o f L abor and the A ttorney G eneral have entered into a series o f understandings w hich p rovide that D epartm ent o f L abor attorneys w ill ordinarily handle all appellate litigation pursuant to the A cts, but p erm it th e A ttorney G eneral to take part in th e conduct o f such ca ses as he deem s to be in the best interest o f the U nited States 17 We d o not m ean to suggest that agencies acting beyond the sco p e o f their litigating authority in settling claim s legally b in d the U nited S tates, rather, we re fe r only to the c o n fu sio n , ill w ill, and lack o f confidence that w ould accrue to the agency in its public relations should the A ttorney G en eral reverse the agency's actions, as well as the practical difficulties inherent in such a reversal See Dresser Indus., Inc v United States. 596 F.2d 1231, 1236 (5th Cir. 1979), cert, denied, 444 U S 1044 (1980): It is well established that (he federal governm ent w ill not be bound by a contract o r agreem ent en tered into by on e of its agents unless such agent is acting w ithin the lim its o f his actual authority. . . A s the S uprem e C o u rt staled in [Federal Crop Ins Corp v Merrill. 332 U .S . 380 (1947)] W hatever the form in w hich the G overnm ent functions, an yon e entering into an arrangem ent with the G overnm ent takes th e risk of having accurately ascertain ed that he w ho purports to act for the G overnm ent stays w ithin the bounds o f his authority. T h e scope o f this authority may be exphctly defined by C o n g ress or be limited by delegated legislation, properly exercised through the rulem aking pow er A nd this is so even th o u g h . the ag e n t him self m ay have been unaw are o f the lim itations upon his authority 332 U S at 384 58 ability to perform the dual litigating functions with which he is charged. Recog­ nizing that the efficiency and expertise objectives in government litigation necessitate the sharing of litigation responsibilities in most cases, care should be taken to make explicit in these arrangements the Attorney G eneral’s overriding authority in directing the litigation. While the Attorney General may delegate some litigating authority under the MOUs, he may not delegate the ultimate responsibility which is by law vested exclusively in the Attorney General. See Harmon, Office of Legal Counsel, M emorandum for the Associate Attorney General (Dec. 11, 1980). Thus, the Attorney General should make clear to the client agency his willingness to support the Assistant Attorney General and line attorneys in the enforcement of his prerogatives under the M O U .18 IV. Settlement and Compromise Authority Included within this broad grant of plenary power over government litigation is the power to com promise and settle litigation over which the Attorney General exercises supervisory authority. This power “to com promise any case over which he has jurisdiction upon such terms as he may deem fit” is “in part inherent in [the Attorney G eneral’s] office and in part derived from statutes and decisions.” 38 Op. A tt’y Gen. 124 (1934). This authority was the subject of President Roosevelt’s Executive Order No. 6166, (June 10, 1933), reprin ted in 5 U .S .C . § 901 note (1976), which provided that “ . . . the function of decision w hether . . . to com prom ise . . . appeal . . . [or] abandon prosecution or defense, now exercised by any agency or officer [of the United States], is transferred to the Department of Justice.” See infra at 7 -8 . With respect to the power to com pro­ mise, Attorney General Cummings observed that it is a power, whether attaching to the office or conferred by statute or Executive order, to be exercised with wise discretion and resorted to only to promote the Government’s best interest or to prevent flagrant injustice, but that it is broad and plenary may be asserted with equal assurance, and it attaches, of course, imme­ diately upon the receipt of a case in the Department of Justice, carrying with it both civil and criminal features, if both exist, and any other matter germane to the case which the Attorney General may find it necessary or proper to consider before he invokes the aid o f the courts; nor does it end with the entry of judgm ent, but embraces execution ( U nited States v. M orris , 10 Wheat. 246). 18 A dditional litigating authority, independent of the A ttorney G eneral, was g ranted to certain ag en cies b y the H obbs A ct. 28 U S C §§ 2342, 2348 (1976 & Supp IV 1980). The H obbs A ct grants specified agencies authority to intervene in appellate proceedings “of their ow n m otion and as o f rig h t/' even though the A ttorney G en eral “ is responsible for and has control o f the interests o f the Government** in the proceedings N o tw ithstanding the A ttorney G en eral’s overall authority, he “ may not dispose of or discontinue the pro ceed in g ” ov er the ob jectio n o f the intervening agency, and the agency “ may prosecute, defend, o r continue the proceeding u n affected b y the actio n o r inaction of the A ttorney G eneral ” 59 38 Op. A tt’y G en. 98, 102 (1934).19 In these opinions, Attorney General C um m ings concluded that the Attorney G eneral’s authority to settle cases ex­ tended even beyond that which would have been available to the agency charged with adm inistering the underlying law.20 Executive O rder N o. 6166, together with Sections 516 and 519 of Title 28 of the U .S. Code (and their predecessor provisions), have been interpreted consis­ tently by the courts to vest the Attorney General with virtually absolute discretion to determ ine w hether to compromise or abandon claims made in litigation on behalf of the U nited States. S ee N ew York v. N ew Jersey, 256 U .S. 296, 308 (1921); U nited S tates v. N ew port N ew s Shipbuilding & D ry D ock C o ., 571 F.2d 1283 (4th Cir.), cert, denied, 4 39 U .S. 875 (1978); Smith v. U nited States, 375 F.2d 243 (5th Cir.), cert, denied, 389 U .S. 841 (1967); H albach v. M arkham, 106 F. Supp. 475, 479-81 (D .N .J. 1952), aff'd , 207 F.2d 503 (3d Cir. 1953). In deciding to settle or abandon a claim , or not to prosecute at all, the Attorney G eneral is not restricted to considerations only of litigative probabilities, but rather may m ake a decision, in his discretion, on the basis of national policies espoused by the Executive. Smith v. U nited States, supra. The only limitations placed on the Attorney General’s settlement authority are those which pertain to his litigating authority generally— i.e ., explicit statements by Congress circum ­ scribing his settlem ent authority,21 see, e .g ., 8 U .S.C . § 1329 (1976) (prohibit­ ing settlem ent o f suits and proceedings brought under Title II of the Immigration Act w ithout consent of the court in which the suit or proceeding is pending), and the duty im posed on the President by Article II, § 3 of the Constitution to “take Care that the Laws be faithfully executed. . . . ” See gen erally Office of Legal C ounsel, M em orandum for Sanford Sagalkin (Sept. 4, 1980); Office of Legal C ounsel, M em orandum to James W. M oorm an (Oct. 30, 1979). To guide the A ttorney General in the exercise o f his settlement discretion, the 1934 opinions of A ttorney G eneral Cummings proposed a “promote the Government’s best inter­ est, or . . . prevent flagrant injustice” standard. See 38 Op. A tt’y Gen. at 102. 19 A s ea rly as 1831, A ttorney General Taney observed that. A n attorney co n d u c tin g a suit fo ra p arty has, in the absence of that party, a n g h t to discontinue it w henever, in his ju d g m e n t, the interest of his client requires it to be do n e If he abuses this power, he is liable to the clien t whom he injures. A n attorney o f the U nited States, ex cep t in so far as his pow ers m ay be restrained by particu lar acts o f C o n g ress, has the same authority and control over the suits w hich he is co n ducting The public in terest and the principles of ju s tic e require that he sho u ld have this pow er . . [S]ince he can n o t c o n su lt his client (the United S tales), the sanction o f the court is regarded as sufficient evidence that he exercised the pow er honestly and discretely 2 O p. A tt'y G en 4 8 2 ,4 8 6 - 8 7 A ttorney G eneral C um m ings cited this opinion approvingly. 38 O p A u ’y G e n at 99 20 T h e o p in io n s found in 38 O p A tt’yG en a t 9 4 ,9 8 ,1 2 4 d is c u s s t h e A ttorney G en eral’s authority to com prom ise in com e tax ca ses in the absence o f bona fide d isp u te d questions o f fact A ttorney G eneral C um m ings concluded that he did po ssess th e authority to settle such cases, even though the S ecretary had no statutory authority to com prom ise in com e tax ca ses in th o se circum stances 21 W ith respect to actions brought under th e Federal Tort C laim s A ct, 28 U .S C §§ 2 6 7 1 -2 6 8 0 (1976), fo r ex am p le, th e A ttorney G eneral o r his designee now has the authority to arbitrate, co m p ro m ise, o r settle claim s b ro u g h t u n d er the A ct after January 17, 1967, 28 U .S .C § 2677 (1976); p nO T to the 1966 am endm ents, court approval w as required before the Attorney G eneral was perm itted to effect a settlem ent C ongress also prescribed a p ro ced u re in the 1966 am en d m en ts which g ran ted agencies authority to settle claim s u n d er $ 2 5 ,0 0 0 w ithout prio r w ritten approval by the A ttorney G eneral of th a t specific settlem ent arran g em en t, as long as the arrangem ent was m ade in acco rd an ce w ith general regulations prescribed by the A ttorney G eneral 28 U S C . § 2672 (1976) 60 V. Litigation in International Courts Similarly, the Attorney G eneral’s authority over litigation involving the Unitec States before the International Court of Justice (ICJ) is plenary. Although the Attorney G eneral’s supervisory authority has been challenged only once since the 1966 codification of the broad grant of authority contained in 28 U .S.C . § § 5 1 6 and 519, that challenge was resolved by reference to the broad scope of the statutory provisions as well as Department of Justice regulations contained in Title 28 of the Code of Federal Regulations. In the connection with the litigation between the United States and Iran in 1980, a dispute arose between the Department of State and the D epartment of Justice concerning the Attorney G eneral’s authority to represent the United States before the ICJ. The Legal Adviser expressed the view that the State Departm ent, by virtue of its premier role in United States foreign policy and international relations, had been historically charged with the responsibility for international affairs involving the United States, including legal matters. In response, A t­ torney General Civiletti cited the unambiguous language of §§ 516 and 519, and noted the absence of both statutory law and formal opinions which would “otherwise authorize” the Department of State to conduct litigation independent of the Attorney G eneral’s supervision. Attorney G eneral’s letter to the Legal Adviser, D epartm ent of State (Apr. 21, 1980).22 In addition, 28 C.F.R. § 0.46 (1980)2-1 makes clear that the Attorney G eneral’s litigation authority is not limited to domestic m atters, but rather includes litigation “ in foreign courts, special proceedings, and similar civil matters not otherwise assigned.” See gen erally D. Deener, The United States Attorneys General and International Law (1957).24 VI. Conclusion In short, the Attorney General, as the chief litigation officer for the United States, has broad plenary authority over all litigation in which the United States, 22 At President C arter s request. A ttorney G eneral C iviletti personally conducted the Iran litigation before the ICJ, assisted by the Legal A dviser to the S tate D epartm ent, w hom the A ttorney G en eral com m issioned as a “S pecial A ssistant,” pursuant to 28 U S .C . § 515 21 28 C F R § 0 46 (1980) provides* The A ssistant A ttorney G eneral in charge of the Civil D ivision sh all, in addition to litigation com ing w ithin the scope o f § 0 .4 5 , direct all other civil litigation including claim s by or against the U nited S tates, its agencies o r officers, in dom estic or foreign courts, special proceedings, and sim ilar civil m atters not otherw ise assigned, and shall em ploy foreign co u n sel to represent before foreign crim inal courts, com m issions o r adm inistrative agencies officials o f the D epartm ent of Justice and all o ther law enforcem ent officers o f the United States w ho are charged with violations o f foreign law as a result o f acts which they perform ed in the course and sco p e o f th eirG ovem m ent service 24 D eener discusses the historical role of the A ttorney G eneral in providing legal advice o n questions of international law and concludes* T he Judiciary A ct of 1789 did not specifically charge the A ttorney G eneral with the duty of giving legal advice on questions of international law On the other hand, the act did not restrict the “questions of law ” that could be referred to the A ttorney G eneral to those involving dom estic m atters only A ctually, alm ost from the very beginning, the President and the departm ent heads subm itted questions involving the law of nations to the ch ief law officer, and succeeding Presidents and cabinet officers have continued to subm it such questions as a m atter o f established practice C ongress apparently recognized this practical interpretation o f the statutes defining the A ttorney G eneral's duties At any rate. C ongress has never deem ed it necessary to ch an g e the statutes in this respect. Deener, supra, at 1 0 -1 1 (footnotes om itted) 61 or its federal agencies or departm ents, are involved. This authority is wideranging, em bracing all aspects of litigation, including subpoena enforcem ent, settle­ m ent authority, and prosecutorial discretion. The reservation of these powers to the Attorney G eneral is grounded in our com m on law tradition, Acts of Congress (principally, 5 U .S .C . § 3106, and 28 U .S .C . §§ 516 and 519), various ex­ ecutive orders, and a long line o f Suprem e C ourt precedent. These powers can be eroded only by other Acts of Congress, and the Executive’s constitutional com m and to faithfully execute the laws. Im plicit in this broad grant o f authority is the recognition that the Attorney General m ust serve the interests of the “client” agency as well as the broader interests o f the United States as a whole in carrying out his professional duties. The Attorney G eneral is obligated to adm inister and enforce the Constitution of the United States and the will of Congress as expressed in the public laws, as well as the m ore “private” legal interests of the “client” agency. It is because of this diversity o f functions that situations may arise where the Attorney General is faced with conflicting demands, e .g ., where a “client” agency desires to circum ­ vent the law, or dissociate itself from legal o r policy judgments to which the Executive subscribes; where a “client” agency attempts to litigate against another agency or departm ent of the federal government; or where a “client” agency desires a legal result that will benefit the narrow area of law administered by the agency, w ithout regard to the broader interests o f the United States government as a w hole. In such cases, the Attorney G eneral’s obligation to represent and advocate the “client” agency’s position m ust yield to a higher obligation to take care that the laws be executed faithfully. In every case, the Attorney General must satisfy him self that this constitutional duty, delegated from the Executive, has not been com prom ised in any way, and that the legal positions advocated by him do not adversely affect the interests of the United States. T heodore B. O lson A ssistan t A ttorn ey G en eral Office c f L egal Counsel 62

Write a legal research memo on the following topic.

Ethical Issues Raised by Retention and Use of Flight Privileges by FAA Employees Although flight privileges generally do not require disqualification under 18 U.S.C. § 208 from all matters involving the relevant air carrier, a Federal Aviation Administration employee who holds such flight privileges must disqualify him or herself from particular matters where FAA action may have a direct and predictable effect on the relevant air carrier’s ability to honor the employee’s flight privileges. An employee with flight privileges and the airline that provided them have a “covered relationship” that must be analyzed under an Office of Government Ethics regulation (5 C.F.R. § 2635.502) to determine whether the employee’s participating in a matter involving that airline would create an “appearance problem.” The regulation entrusts the agency and the employee to make that determination based on the facts of a particular case. Although flight privileges could constitute a “payment” within the meaning of another OGE regulation (5 C.F.R. § 2635.503), and therefore must be analyzed under the regulation, they do not constitute an “extraordinary payment” under the described circumstances. Flight privileges are not a type of interest that would qualify as “stock” or “any other securities interest” under a Department of Transportation regulation (5 C.F.R. § 6001.104(b)) that supplements the OGE impartiality regulations. August 30, 2004 MEMORANDUM OPINION FOR THE DEPUTY CHIEF COUNSEL FEDERAL AVIATION ADMINISTRATION You have requested our opinion on four issues related to the retention and use of “flight privileges” by employees of the Federal Aviation Administration (“FAA”).1 Flight privileges are no-cost air travel privileges earned through former employment with an air carrier. We understand that flight privileges represent a common retirement benefit in the airline industry available to all retired airline employees meeting certain length-of-service requirements. We also understand that while an airline may eliminate or modify the flight privileges of all retirees, it may not do so on a case-by-case basis by refusing to honor the flight privileges of a particular retiree who otherwise satisfies the rules governing their use. We further understand that flight privileges cannot be sold or transferred. First, you ask whether flight privileges are a disqualifying “financial interest” for FAA employees under 18 U.S.C. § 208 (2000), the criminal conflict of interest statute. We conclude that although flight privileges generally do not require disqualification under section 208 from all matters involving the relevant air carrier, an FAA employee who holds such flight privileges must disqualify him or 1 Letter for Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, from James W. Whitlow, Deputy Chief Counsel, Federal Aviation Administration (June 16, 2004). The Office of Government Ethics and the Criminal Division of the Department of Justice concur in this memorandum. 237 Opinions of the Office of Legal Counsel in Volume 28 herself from particular matters where FAA action may have a direct and predictable effect on the relevant air carrier’s ability to honor the employee’s flight privileges. Second, you ask whether flight privileges must be analyzed under 5 C.F.R. § 2635.502 (2003), an Office of Government Ethics (“OGE”) regulation that under certain circumstances requires an employee to recuse him or herself if participating in a matter would create an “appearance problem.” We conclude that an employee with flight privileges and the airline that provided them have a “covered relationship” that must be analyzed under the regulation to determine whether the employee’s participating in a matter involving that airline would create an appearance problem. This Office, however, is not in a position to decide in the abstract for an agency or an employee whether there would be an appearance problem. Instead, the regulation entrusts the agency and the employee to make that determination based on the facts of a particular case. Third, you ask whether flight privileges must be analyzed under 5 C.F.R. § 2635.503 (2003), an OGE regulation that generally prohibits a government employee from participating for two years in matters involving his former employer if the employee received an “extraordinary payment” prior to entering government service. We conclude that although flight privileges could constitute a “payment” within the meaning of the regulation, and therefore must be analyzed under the regulation, they do not constitute an “extraordinary payment” under the circumstances you have described. Fourth, you ask whether flight privileges are a type of interest that would qualify as “stock” or “any other securities interest” under a Department of Transportation regulation that supplements the OGE impartiality regulations. See 5 C.F.R. § 6001.104(b) (2003). We conclude that they are not, as those terms are not naturally read to include benefits like flight privileges. I. You first ask whether flight privileges are a disqualifying “financial interest” under 18 U.S.C. § 208(a), the criminal conflict of interest statute. Section 208(a) provides that [e]xcept as permitted by subsection (b) hereof, whoever, being an officer or employee of the executive branch of the United States Government, or of any independent agency of the United States, a Federal Reserve bank director, officer, or employee, or an officer or employee of the District of Columbia, including a special Government employee, participates personally and substantially as a Government officer or employee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, in a judicial or other proceeding, application, request for a 238 Ethical Issues Raised by Retention and Use of Flight Privileges by FAA Employees ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter in which, to his knowledge, he, his spouse, minor child, general partner, organization in which he is serving as officer, director, trustee, general partner or employee, or any person or organization with whom he is negotiating or has any arrangement concerning prospective employment, has a financial interest . . . [s]hall be subject to the penalties set forth in section 216 of this title. Id. Congress enacted section 208(a) in 1962 as part of a general revision of the conflict of interest laws. Pub. L. No. 87-849, sec. 1(a), § 208(a), 76 Stat. 1119, 1124 (1962). In answering your question, we “begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Engine Mfrs. Ass’n v. S. Coast Air Qual. Mgmt. Dist., 541 U.S. 246, 252 (2004) (internal quotation omitted). By prohibiting an executive branch officer or employee from participating “personally and substantially” in a “particular matter” “in which,” “to his knowledge,” he has a “financial interest,” section 208 makes clear that, in order to be a disqualifying financial interest, an interest must be a “financial interest” “in” a matter. The question, then, is not whether flight privileges (or any other category of property or benefit) qualify as a financial interest per se, but whether the holding of flight privileges by an employee may constitute a financial interest in a particular matter. Compare 18 U.S.C. § 208(a) (2000) (requiring a determination whether an employee has a financial interest in a matter) with 18 U.S.C. § 434 (1958) (section 208(a)’s predecessor, requiring a determination whether an employee has an “interest[] in the pecuniary profits or contracts of any corporation . . . or other business entity”), 5 C.F.R. § 6001.104(b) (requiring a determination whether an employee has a “securities interest in an airline”), and 5 C.F.R. § 6001.104(a) (requiring a determination whether an employee has “a financial interest . . . in a railroad company”).2 While the statute does not define what it means to have a “financial interest” “in” a governmental matter, or what kinds of property or possessions can give rise to a financial interest in a matter, these words have an ordinary meaning and usage. As generally understood, a “financial interest” is an interest “pertaining to monetary receipts and expenditures.” Random House Dictionary of the English Language 532 (1971); see also Black’s Law Dictionary 816 (7th ed. 1999) (“inter- 2 See Roswell B. Perkins, The New Federal Conflict-of-Interest Law, 76 Harv. L. Rev. 1113, 1131 (1963) (noting that section 434 “was limited to situations where the government employee had one of two basic types of interest in the private party, i.e., the ‘business entity,’ involved in the governmental proceeding,” while section 208(a) “requires that there be a ‘financial interest’ on the part of someone in the particular government proceeding”). 239 Opinions of the Office of Legal Counsel in Volume 28 est” means “[a]dvantage or profit, esp. of a financial nature”). And by everyday standards of language, one has a financial interest in a governmental matter only when the particular matter can affect one’s finances—i.e., one’s monetary receipts and expenditures. The ordinary understanding of these words also accords with the OGE’s regulatory interpretation of section 208. Exercising its authority to “promulgat[e], with the concurrence of the Attorney General, regulations interpreting the provisions of . . . section 208,” Exec. Order No. 12674, § 201(c), 3 C.F.R. 215, 216 (1989), the OGE has interpreted the term “financial interest” to mean “the potential for gain or loss to the employee, or other person specified in section 208, as a result of governmental action on the particular matter.” 5 C.F.R. § 2640.103(b) (2003). “[A] disqualifying financial interest” in a matter, then, “might arise from ownership of certain financial instruments or investments such as stock, bonds, mutual funds, or real estate.” However, “a disqualifying financial interest” might also “derive from a salary, indebtedness, job offer, or any similar interest that may be affected by the matter.” Id. The OGE regulations also amplify what it means for a matter to “affect” an employee’s finances. To constitute a disqualifying financial interest in a matter, the OGE regulations explain, a governmental matter must have more than a mere potential to affect the employee financially; rather, there must be “a direct and predictable effect.” 5 C.F.R. § 2635.402(a) (2003); id. § 2640.103(a) (same). The “direct and predictable effect” requirement reflects the longstanding view of this Office, as well. See Advisory Committees—Food and Drug Administration— Conflicts of Interest (18 U.S.C. § 208), 2 Op. O.L.C. 151, 155 (1978); Memorandum for the Heads of Executive Departments and Agencies from the President, 28 Fed. Reg. 4539, 4543 (May 7, 1963). These principles find straightforward application here. As a general matter, flight privileges will not require blanket disqualification under section 208 from all matters involving or affecting the air carrier that conferred the privileges. While their value to the employee may fluctuate as airfares rise and fall, flight privileges, we understand, do not fluctuate in value with the sponsor’s business prospects. They cannot be sold or transferred, they do not trade on a market, they possess no resale value, and, indeed, they cannot be liquidated. Rather, the value to an employee of flight privileges is a simple function of the airline’s ability to honor them. Many, if not most, FAA matters relating to the air carrier would likely have no direct and predictable effect on the airline’s ability to honor an employee’s flight privileges and would likely not financially affect the employee’s interests within the meaning of the statute. It may be the case, however, that certain, perhaps extraordinary, FAA matters may create a disqualifying financial interest for an employee on account of flight privileges. Where an FAA matter, for example, has the clear potential to result in the airline’s losing its operating certificate, losing its right to fly, and thereby losing the ability to honor flight privileges, an employee who holds flight privileg- 240 Ethical Issues Raised by Retention and Use of Flight Privileges by FAA Employees es on that airline and who participates personally and substantially in that particular matter would have a financial interest in it. As flight privileges enable the holder to fly for free where non-holders must pay money, a prospective loss of flight privileges would “pertain to monetary . . . expenditures” and entail “the potential for” a monetary “loss to the employee.”3 Thus, we cannot categorically exclude the possibility that a financial interest in a particular matter can derive from flight privileges, although we can conclude that it would involve extraordinary circumstances. Cf. 5 C.F.R. § 2640.203(e) & ex. 1 (suggesting that participation in a “frequent flier program” can give rise to a disqualifying financial interest where a particular matter would have a direct and predictable effect on the employee’s interest, but providing a regulatory exemption for participation in such a program so long as the program is open to the general public and participation involves no other financial interest).4 The law’s current treatment of defined benefit plans reinforces this conclusion. In September 1995, the OGE published a proposed regulation that contains an interpretation of section 208. 60 Fed. Reg. 47,208 (Sept. 11, 1995). The preamble to that proposed regulation, which this Office reviewed and approved, states that a defined benefit plan ordinarily will not give rise to a financial interest, because [a]s a practical matter . . . most governmental matters in which an employee would participate are unlikely to have a direct and predictable effect on the plan sponsor’s ability or willingness to pay an employee’s pension benefits. Accordingly, most employees will not have a disqualifying financial interest in either the holdings or the sponsor of a defined benefit plan. 3 We do not mean to suggest that only matters that have the potential to render an airline unable to honor all flight privileges can create a disqualifying financial interest. A matter affecting an airline’s ability to honor some part of an employee’s flight privileges might also entail the potential for a monetary loss to the employee. For example, where an FAA employee regularly flies to a particular destination using flight privileges and a particular matter has the clear potential to affect the airline’s ability to honor flight privileges to that destination (a result that would require the employee to pay to fly to a destination to which he regularly flies for free), the employee would likely have a disqualifying financial interest. 4 One might argue that flight privileges can never give rise to a financial interest because they are not a financial instrument (e.g., cash, stocks, bonds or mutual funds) or an investment vehicle (e.g., real estate). That argument, however, would have a faulty premise, as the question is not whether flight privileges are financial, but whether the employee’s interest in a governmental matter is financial. Thus, it is well-established that a financial interest in a matter may derive from a job offer or a law firm’s representation of a client, neither of which resembles financial instruments or investment vehicles, and yet both of which can give rise to a disqualifying financial interest in a governmental matter. See 5 C.F.R. § 2640.103(b) (“a disqualifying financial interest might derive from a salary . . . [or] job offer”); Memorandum for Arnold I. Burns, Deputy Attorney General, from Margaret C. Love, Special Counsel, Office of Legal Counsel, Re: Waiver Under 18 U.S.C. 208(b)(1) (Mar. 14, 1988) (law firm’s interest in litigation in which it is involved in a representative capacity may give rise to a financial interest that may be imputed to a government employee who has accepted a position with the firm). 241 Opinions of the Office of Legal Counsel in Volume 28 Id. at 47,214; see also 5 C.F.R. pt. 2640 (final rule); Memorandum for Stephen D. Potts, Director, Office of Government Ethics, from Richard L. Shiffrin, Office of Legal Counsel (Sept. 17, 1996) (concurring in publication of final rule); Office of Government Ethics, 18 U.S.C. § 208 and Defined Benefit Pension Plans, Informal Advisory Op. 99x6, at 3 (Apr. 14, 1999), available at http://www.oge.gov/OGEAdvisories/Legal-Advisories/Legal-Advisories (last visited May 24, 2013) (“Defined Benefit Pension Plans”) (“If an employee is assigned to participate in a particular matter that affects the sponsor of his defined benefit plan, the employee will not ordinarily have a disqualifying financial interest in his defined benefit plan under section 208, unless the matter would have a direct and predictable effect on the sponsor’s ability or willingness to pay the employee’s pension benefit.”); id. at 3 (“If [a matter] could result in the dissolution of the sponsor organization and in its subsequent inability to pay the employee’s pension, the employee’s interest in his pension would be a disqualifying financial interest under section 208.”); id. at 2; cf. President Reagan’s Ability to Receive Retirement Benefits from the State of California, 5 Op. O.L.C. 187, 190 (1981) (concluding that it would not violate the terms or spirit of Article II, Section 1, Clause 7 of the Constitution—which prohibits the President from receiving an emolument from a State while in office—for the President to receive a “pension in which he acquired a vested right six years before he became President, for which he no longer has to perform any services, and of which the State of California cannot deprive him”). As you have described them, flight privileges resemble a “defined” benefit in the sense that matters here. Like the benefit provided under a defined benefit plan, the value of flight privileges does not generally fluctuate depending on the FAA’s regulatory treatment of the airline. Their value to the employee will, of course, be independently affected by the market price of air travel, just as the value of a defined benefit will rise or fall depending on the market performance of the benefit plan’s investments. But the right to realize that value is definite, subject only to the company’s ability to honor the privilege, just as a pension providing a defined benefit is definite, subject only to the company’s ability to honor its funding obligations. If defined benefit plans do not ordinarily give rise to a disqualifying financial interest in the plan’s sponsor, we have no reason to conclude that flight privileges will either. The legislative history of section 208(a) offers further support for this conclusion. While Congress undoubtedly sought to reach genuine conflicts of interest in enacting section 208, nothing in the legislative history of section 208 suggests that Congress intended categorically to prevent government employees from participating in matters involving companies from which they receive retirement benefits. To the contrary, Congress was well aware that “legal protections against conflicts of interest must be so designed as not unnecessarily or unreasonably to impede the recruitment and retention by the Government of those men and women who are most qualified to serve it.” H.R. Rep. No. 87-748, at 6 (1961). Our conclusion— 242 Ethical Issues Raised by Retention and Use of Flight Privileges by FAA Employees that flight privileges normally will not give rise to a disqualifying financial interest in an FAA matter—fully effectuates this intention. A 1978 opinion of this Office on pension and welfare benefits does not alter our conclusion. In that opinion, we concluded that a government employee who continued to receive payments pursuant to the retirement program of his former law firm had a “financial interest” under section 208 in a matter in which the law firm represented a party. Memorandum for Barbara Allen Babcock, Assistant Attorney General, Civil Division, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Potential Conflict Presented by the Participation of Stephen J. Friedman on the Settlement Policy Committee (Feb. 3, 1978). We interpreted section 208 to require disqualification in “any matter affecting a former employer whenever the Government official is continuing to participate in a welfare or benefit plan maintained by that employer, whether or not the employer continues to make contributions—unless the official first obtains an exemption pursuant to § 208(b).” Id. at 9 (footnote omitted). The 1978 opinion was based on the erroneous view that section 208(a) “requires that we look to more than merely the eventual financial impact the governmental matter may have on the employee.” Id. at 6. “It is appropriate,” we reasoned, “to consider as well the financial nexus the employee has with an entity that may be affected by the governmental matter, even if the nexus is such that the financial impact on the entity will not be passed through to the individual employee.” Id. (emphasis added). The 1978 opinion is inconsistent with the direct and predictable effect requirement subsequently adopted by OGE in its regulations and long approved by this Office. It is also inconsistent with the language of section 208 itself, which clearly requires disqualification only where a decision in the “particular matter” at issue has the potential to affect the individual employee’s financial interests. For these reasons, we are constrained to repudiate our 1978 opinion. II. You next ask whether flight privileges constitute an interest that must be analyzed under an OGE regulation, 5 C.F.R. § 2635.502(a) (2003). That regulation states that [w]here an employee knows that a particular matter involving specific parties is likely to have a direct and predictable effect on the financial interest of a member of his household, or knows that a person with whom he has a covered relationship is or represents a party to such matter, and where the employee determines that the circumstances would cause a reasonable person with knowledge of the relevant facts to question his impartiality in the matter, the employee should not participate in the matter unless he has informed the agen- 243 Opinions of the Office of Legal Counsel in Volume 28 cy designee of the appearance problem and received authorization from the agency designee. Id. Under section 2635.502(a), as relevant here, an employee’s circumstances must satisfy two elements before the regulation counsels the employee either to decline to work on the matter or to obtain authorization from the agency designee: (1) the employee must know that a person with whom he has a covered relationship is a party or a party’s representative in a particular matter, and (2) the employee or his agency must determine that a reasonable person would question his impartiality if he participates in that matter.5 In our view, an employee who holds flight privileges and the airline that provided the flight privileges would have a “covered relationship.” According to the regulation, “[a]n employee has a covered relationship with,” among other people, “(i) [a] person . . . with whom the employee has . . . a business, contractual or other financial relationship that involves other than a routine consumer transaction . . . [and] (iv) [a]ny person for whom the employee has, within the last year, served as officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee . . . .” 5 C.F.R. § 2635.502(b) (emphasis added). A flight privileges arrangement would qualify as a “contractual . . . relationship” under section 2635.502(b)(i), because we understand that flight privileges are granted under a contract or a benefit plan, or are otherwise subject to contractual terms. As that relationship would involve “other than a routine consumer transaction”— airlines, after all, do not routinely offer consumers free flight privileges—the FAA employee who holds flight privileges and the airline that provided them would have a “covered relationship” within the meaning of the regulation. The OGE’s informal guidance in this area further supports this construction of the regulation. OGE has stated that “[u]nder 5 C.F.R. § 2635.502(b)(1)(i), . . . [a] vested interest in a defined benefit plan funded and maintained by a former employer would create a covered relationship,” an interpretation that applies with equal force to flight privileges. Defined Benefit Pension Plans at 3 n.3 (emphasis added); cf. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (an agency’s interpretation of its own regulations is entitled to “controlling weight unless it is plainly erroneous or inconsistent with the regulation”). Whether flight privileges would create an appearance problem, satisfying the second element of the regulation, is not a question we can answer in the abstract. As OGE has advised, “OGE is not in a position to decide for an agency whether a reasonable person would question the impartiality of [an] employee’s participation in a particular matter.” Office of Government Ethics, Receipt of Outside Awards 5 Although the first element is also satisfied if the employee knows that the particular matter is likely to have a direct and predictable effect on the financial interest of a member of his household, the analysis of that alternative would largely overlap our analysis of the criminal conflict of interest statute in Part I above. 244 Ethical Issues Raised by Retention and Use of Flight Privileges by FAA Employees by Employees and Outside Activities by Employees, Informal Advisory Op. 00x4, at 4 (Apr. 11, 2000), available at http://www.oge.gov/OGE-Advisories/LegalAdvisories/Legal-Advisories (last visited May 24, 2013). The same generally holds for this Office; the question of an appearance problem is best left to the employee and the agency based on the facts of a particular case. See id.; Office of Government Ethics, Covered Relationship With Private Partner, Informal Advisory Op. 93x25, at 2 (Oct. 1, 1993), available at http://www.oge.gov/OGE-Advisories/ Legal-Advisories/Legal-Advisories (last visited May 24, 2013).6 III. You also ask whether flight privileges are an interest that must be analyzed under 5 C.F.R. § 2635.503 (2003), an OGE regulation that generally prohibits a government employee from participating, for two years, in matters involving his former employer if the employee received an extraordinary payment from that employer prior to entering government service. An “extraordinary payment” is any item, including cash or an investment interest, with a value in excess of $10,000, which is paid: (i) On the basis of a determination made after it became known to the former employer that the individual was being considered for or had accepted a Government position; and (ii) Other than pursuant to the former employer’s established compensation, partnership, or benefits program. A compensation, partnership, or benefits program will be deemed an established program if it is contained in bylaws, a contract or other written form, or if there is a history of similar payments made to others not entering into Federal service. Id. § 2635.503(b)(1). Under the plain terms of the regulation, flight privileges can be a prohibited type of “payment.” While the term “payment” ordinarily suggests money or some 6 We note that under the OGE regulations an agency need not wait for an employee to determine whether a covered relationship would cause a reasonable person to question his impartiality. Section 2635.502(c) says that “the agency designee may make an independent determination” about impartiality “at any time” and “on his own initiative.” 5 C.F.R. § 2635.502(c) (emphasis added). Some might argue that an appearance problem could arise if a high percentage of FAA employees held privileges not generally available to the public from the industry regulated by the FAA, but we do not address the possible collective effect that widespread flight benefits among FAA employees might be perceived to have. The legal standards discussed in this memorandum turn on analysis of individual employees’ personal interests, and there is no concept in the applicable laws of an “agency conflict of interest.” Any effect that might be perceived because of the aggregation or widespread holding of individuals’ financial interests is an issue for policy makers to consider. 245 Opinions of the Office of Legal Counsel in Volume 28 other financial instrument, it also encompasses “compensation.” Webster’s Third New Int’l Dictionary of the English Language Unabridged 1659 (2002) (“payment . . . : the act of paying or giving compensation . . .”). And there is no reason that an airline employee could not be compensated with flight privileges. Moreover, the regulation states that “any item . . . with a value in excess of $10,000” may constitute an extraordinary payment, not just cash or financial instruments. Thus, it is the value, timing and extraordinary nature of a “payment” that brings the payment within the regulation’s orbit, not its form. Granting privileges— whether flight privileges, country club privileges, or any other valuable privileges—as a reward for accepting a government position would pose no less of an impartiality problem than making an equivalent cash payment. While flight privileges can qualify as a type of payment, and therefore must be analyzed under the regulation, we conclude that retiree flight privileges do not meet the regulation’s definition of extraordinary payment. First, we understand that flight privileges are an ordinary benefit within the industry, not one awarded “on the basis of a determination made after” a former employer learns that an individual may enter government service. We are told that the FAA has sought our opinion in part because uncertainty about the ethical implications of flight privileges has impeded the FAA’s ability to recruit former airline industry employees who are already entitled to such privileges and are free to use them if they choose not to enter government service. Second, flight privileges are earned under an “established . . . benefits program,” 5 C.F.R. § 2635.503(b)(1)(ii), because, according to your letter, there is a history of granting them to retiring airline employees who are not entering federal service. See also 57 Fed. Reg. 35,006, 35,028 (Aug. 7, 1992) (OGE rejecting a proposal to define “extraordinary payment” to include payments made under an employment contract or employee benefits plan).7 IV. Lastly, you ask whether flight privileges qualify as “stock” or “any other securities” within the meaning of 5 C.F.R. § 6001.104(b) (2003), which forbids FAA employees, their spouses and their minor children to “hold stock or have any other securities interest in an airline.” Under any conventional standard of meaning, flight privileges do not qualify as “stock or . . . any other securities interest.” “Stock” represents an equity interest in a company, while flight privileges entail no such ownership interest, but merely the privilege of flying for free. Nor do flight privileges qualify as “any other 7 For the same reason, an FAA employee’s use of flight privileges that were earned by virtue of prior employment with the airline and that are available to all similarly situated retirees pursuant to the general retirement benefit policy of the airline, regardless of subsequent government employment, would not constitute a “gift” prohibited by the ethics rules. See 5 C.F.R. § 2635.203(b)(6) (2003). 246 Ethical Issues Raised by Retention and Use of Flight Privileges by FAA Employees securities interest,” as they are not an investment of any kind—either in form or in economic substance. See Securities Act of 1933, Pub. L. No. 73-22, § 2(1), as amended, 15 U.S.C. § 77b(a)(1) (2000) (“The term ‘security’ means any note, stock, treasury stock, security future, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateraltrust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, any put, call, straddle, option, or privilege on any security, certificate of deposit, or group or index of securities (including any interest therein or based on the value thereof), or any put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency, or, in general, any interest or instrument commonly known as a ‘security,’ or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.”); SEC v. Edwards, 540 U.S. 389, 393 (2004) (explaining that under “[t]he test for whether a particular scheme is an investment contract,” and therefore is a “security,” “[w]e look to ‘whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others’”) (quoting SEC v. W.J. Howey Co., 328 U.S. 293, 301 (1946)); Int’l Bhd. of Teamsters v. Daniel, 439 U.S. 551, 553 (1979) (holding that a non-contributory, mandatory pension plan did not constitute a “security” under the Securities Act of 1933 or the Securities Exchange Act of 1934 because there was no “investment of money”); id. at 559–60 (“In every decision of this Court recognizing the presence of a ‘security’ under the Securities Acts, the person found to have been an investor chose to give up a specific consideration in return for a separable financial interest with the characteristics of a security.”). Context bolsters this conclusion. A different section of the regulation, section 6001.104(a), provides that no Federal Railroad Administration (“FRA”) employee may “hold stock or have any other financial interest, including outside employment, in a railroad company.” 5 C.F.R. § 6001.104(a) (emphasis added). By broadly prohibiting FRA employees from holding any financial interest in a railroad, while narrowly prohibiting FAA employees from holding any securities interest in an airline, the regulation confirms that the FAA limitation incorporates only a narrow subset of financial interests and that it excludes non-securities interests like flight privileges. STEVEN G. BRADBURY Principal Deputy Assistant Attorney General Office of Legal Counsel 247

Write a legal research memo on the following topic.

Ethical Issues Raised by Retention and Use of Flight Privileges by FAA Employees Although flight privileges generally do not require disqualification under 18 U.S.C. § 208 from all matters involving the relevant air carrier, a Federal Aviation Administration employee who holds such flight privileges must disqualify him or herself from particular matters where FAA action may have a direct and predictable effect on the relevant air carrier’s ability to honor the employee’s flight privileges. An employee with flight privileges and the airline that provided them have a “covered relationship” that must be analyzed under an Office of Government Ethics regulation (5 C.F.R. § 2635.502) to determine whether the employee’s participating in a matter involving that airline would create an “appearance problem.” The regulation entrusts the agency and the employee to make that determination based on the facts of a particular case. Although flight privileges could constitute a “payment” within the meaning of another OGE regulation (5 C.F.R. § 2635.503), and therefore must be analyzed under the regulation, they do not constitute an “extraordinary payment” under the described circumstances. Flight privileges are not a type of interest that would qualify as “stock” or “any other securities interest” under a Department of Transportation regulation (5 C.F.R. § 6001.104(b)) that supplements the OGE impartiality regulations. August 30, 2004 MEMORANDUM OPINION FOR THE DEPUTY CHIEF COUNSEL FEDERAL AVIATION ADMINISTRATION You have requested our opinion on four issues related to the retention and use of “flight privileges” by employees of the Federal Aviation Administration (“FAA”).1 Flight privileges are no-cost air travel privileges earned through former employment with an air carrier. We understand that flight privileges represent a common retirement benefit in the airline industry available to all retired airline employees meeting certain length-of-service requirements. We also understand that while an airline may eliminate or modify the flight privileges of all retirees, it may not do so on a case-by-case basis by refusing to honor the flight privileges of a particular retiree who otherwise satisfies the rules governing their use. We further understand that flight privileges cannot be sold or transferred. First, you ask whether flight privileges are a disqualifying “financial interest” for FAA employees under 18 U.S.C. § 208 (2000), the criminal conflict of interest statute. We conclude that although flight privileges generally do not require disqualification under section 208 from all matters involving the relevant air carrier, an FAA employee who holds such flight privileges must disqualify him or 1 Letter for Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, from James W. Whitlow, Deputy Chief Counsel, Federal Aviation Administration (June 16, 2004). The Office of Government Ethics and the Criminal Division of the Department of Justice concur in this memorandum. 237 Opinions of the Office of Legal Counsel in Volume 28 herself from particular matters where FAA action may have a direct and predictable effect on the relevant air carrier’s ability to honor the employee’s flight privileges. Second, you ask whether flight privileges must be analyzed under 5 C.F.R. § 2635.502 (2003), an Office of Government Ethics (“OGE”) regulation that under certain circumstances requires an employee to recuse him or herself if participating in a matter would create an “appearance problem.” We conclude that an employee with flight privileges and the airline that provided them have a “covered relationship” that must be analyzed under the regulation to determine whether the employee’s participating in a matter involving that airline would create an appearance problem. This Office, however, is not in a position to decide in the abstract for an agency or an employee whether there would be an appearance problem. Instead, the regulation entrusts the agency and the employee to make that determination based on the facts of a particular case. Third, you ask whether flight privileges must be analyzed under 5 C.F.R. § 2635.503 (2003), an OGE regulation that generally prohibits a government employee from participating for two years in matters involving his former employer if the employee received an “extraordinary payment” prior to entering government service. We conclude that although flight privileges could constitute a “payment” within the meaning of the regulation, and therefore must be analyzed under the regulation, they do not constitute an “extraordinary payment” under the circumstances you have described. Fourth, you ask whether flight privileges are a type of interest that would qualify as “stock” or “any other securities interest” under a Department of Transportation regulation that supplements the OGE impartiality regulations. See 5 C.F.R. § 6001.104(b) (2003). We conclude that they are not, as those terms are not naturally read to include benefits like flight privileges. I. You first ask whether flight privileges are a disqualifying “financial interest” under 18 U.S.C. § 208(a), the criminal conflict of interest statute. Section 208(a) provides that [e]xcept as permitted by subsection (b) hereof, whoever, being an officer or employee of the executive branch of the United States Government, or of any independent agency of the United States, a Federal Reserve bank director, officer, or employee, or an officer or employee of the District of Columbia, including a special Government employee, participates personally and substantially as a Government officer or employee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, in a judicial or other proceeding, application, request for a 238 Ethical Issues Raised by Retention and Use of Flight Privileges by FAA Employees ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter in which, to his knowledge, he, his spouse, minor child, general partner, organization in which he is serving as officer, director, trustee, general partner or employee, or any person or organization with whom he is negotiating or has any arrangement concerning prospective employment, has a financial interest . . . [s]hall be subject to the penalties set forth in section 216 of this title. Id. Congress enacted section 208(a) in 1962 as part of a general revision of the conflict of interest laws. Pub. L. No. 87-849, sec. 1(a), § 208(a), 76 Stat. 1119, 1124 (1962). In answering your question, we “begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Engine Mfrs. Ass’n v. S. Coast Air Qual. Mgmt. Dist., 541 U.S. 246, 252 (2004) (internal quotation omitted). By prohibiting an executive branch officer or employee from participating “personally and substantially” in a “particular matter” “in which,” “to his knowledge,” he has a “financial interest,” section 208 makes clear that, in order to be a disqualifying financial interest, an interest must be a “financial interest” “in” a matter. The question, then, is not whether flight privileges (or any other category of property or benefit) qualify as a financial interest per se, but whether the holding of flight privileges by an employee may constitute a financial interest in a particular matter. Compare 18 U.S.C. § 208(a) (2000) (requiring a determination whether an employee has a financial interest in a matter) with 18 U.S.C. § 434 (1958) (section 208(a)’s predecessor, requiring a determination whether an employee has an “interest[] in the pecuniary profits or contracts of any corporation . . . or other business entity”), 5 C.F.R. § 6001.104(b) (requiring a determination whether an employee has a “securities interest in an airline”), and 5 C.F.R. § 6001.104(a) (requiring a determination whether an employee has “a financial interest . . . in a railroad company”).2 While the statute does not define what it means to have a “financial interest” “in” a governmental matter, or what kinds of property or possessions can give rise to a financial interest in a matter, these words have an ordinary meaning and usage. As generally understood, a “financial interest” is an interest “pertaining to monetary receipts and expenditures.” Random House Dictionary of the English Language 532 (1971); see also Black’s Law Dictionary 816 (7th ed. 1999) (“inter- 2 See Roswell B. Perkins, The New Federal Conflict-of-Interest Law, 76 Harv. L. Rev. 1113, 1131 (1963) (noting that section 434 “was limited to situations where the government employee had one of two basic types of interest in the private party, i.e., the ‘business entity,’ involved in the governmental proceeding,” while section 208(a) “requires that there be a ‘financial interest’ on the part of someone in the particular government proceeding”). 239 Opinions of the Office of Legal Counsel in Volume 28 est” means “[a]dvantage or profit, esp. of a financial nature”). And by everyday standards of language, one has a financial interest in a governmental matter only when the particular matter can affect one’s finances—i.e., one’s monetary receipts and expenditures. The ordinary understanding of these words also accords with the OGE’s regulatory interpretation of section 208. Exercising its authority to “promulgat[e], with the concurrence of the Attorney General, regulations interpreting the provisions of . . . section 208,” Exec. Order No. 12674, § 201(c), 3 C.F.R. 215, 216 (1989), the OGE has interpreted the term “financial interest” to mean “the potential for gain or loss to the employee, or other person specified in section 208, as a result of governmental action on the particular matter.” 5 C.F.R. § 2640.103(b) (2003). “[A] disqualifying financial interest” in a matter, then, “might arise from ownership of certain financial instruments or investments such as stock, bonds, mutual funds, or real estate.” However, “a disqualifying financial interest” might also “derive from a salary, indebtedness, job offer, or any similar interest that may be affected by the matter.” Id. The OGE regulations also amplify what it means for a matter to “affect” an employee’s finances. To constitute a disqualifying financial interest in a matter, the OGE regulations explain, a governmental matter must have more than a mere potential to affect the employee financially; rather, there must be “a direct and predictable effect.” 5 C.F.R. § 2635.402(a) (2003); id. § 2640.103(a) (same). The “direct and predictable effect” requirement reflects the longstanding view of this Office, as well. See Advisory Committees—Food and Drug Administration— Conflicts of Interest (18 U.S.C. § 208), 2 Op. O.L.C. 151, 155 (1978); Memorandum for the Heads of Executive Departments and Agencies from the President, 28 Fed. Reg. 4539, 4543 (May 7, 1963). These principles find straightforward application here. As a general matter, flight privileges will not require blanket disqualification under section 208 from all matters involving or affecting the air carrier that conferred the privileges. While their value to the employee may fluctuate as airfares rise and fall, flight privileges, we understand, do not fluctuate in value with the sponsor’s business prospects. They cannot be sold or transferred, they do not trade on a market, they possess no resale value, and, indeed, they cannot be liquidated. Rather, the value to an employee of flight privileges is a simple function of the airline’s ability to honor them. Many, if not most, FAA matters relating to the air carrier would likely have no direct and predictable effect on the airline’s ability to honor an employee’s flight privileges and would likely not financially affect the employee’s interests within the meaning of the statute. It may be the case, however, that certain, perhaps extraordinary, FAA matters may create a disqualifying financial interest for an employee on account of flight privileges. Where an FAA matter, for example, has the clear potential to result in the airline’s losing its operating certificate, losing its right to fly, and thereby losing the ability to honor flight privileges, an employee who holds flight privileg- 240 Ethical Issues Raised by Retention and Use of Flight Privileges by FAA Employees es on that airline and who participates personally and substantially in that particular matter would have a financial interest in it. As flight privileges enable the holder to fly for free where non-holders must pay money, a prospective loss of flight privileges would “pertain to monetary . . . expenditures” and entail “the potential for” a monetary “loss to the employee.”3 Thus, we cannot categorically exclude the possibility that a financial interest in a particular matter can derive from flight privileges, although we can conclude that it would involve extraordinary circumstances. Cf. 5 C.F.R. § 2640.203(e) & ex. 1 (suggesting that participation in a “frequent flier program” can give rise to a disqualifying financial interest where a particular matter would have a direct and predictable effect on the employee’s interest, but providing a regulatory exemption for participation in such a program so long as the program is open to the general public and participation involves no other financial interest).4 The law’s current treatment of defined benefit plans reinforces this conclusion. In September 1995, the OGE published a proposed regulation that contains an interpretation of section 208. 60 Fed. Reg. 47,208 (Sept. 11, 1995). The preamble to that proposed regulation, which this Office reviewed and approved, states that a defined benefit plan ordinarily will not give rise to a financial interest, because [a]s a practical matter . . . most governmental matters in which an employee would participate are unlikely to have a direct and predictable effect on the plan sponsor’s ability or willingness to pay an employee’s pension benefits. Accordingly, most employees will not have a disqualifying financial interest in either the holdings or the sponsor of a defined benefit plan. 3 We do not mean to suggest that only matters that have the potential to render an airline unable to honor all flight privileges can create a disqualifying financial interest. A matter affecting an airline’s ability to honor some part of an employee’s flight privileges might also entail the potential for a monetary loss to the employee. For example, where an FAA employee regularly flies to a particular destination using flight privileges and a particular matter has the clear potential to affect the airline’s ability to honor flight privileges to that destination (a result that would require the employee to pay to fly to a destination to which he regularly flies for free), the employee would likely have a disqualifying financial interest. 4 One might argue that flight privileges can never give rise to a financial interest because they are not a financial instrument (e.g., cash, stocks, bonds or mutual funds) or an investment vehicle (e.g., real estate). That argument, however, would have a faulty premise, as the question is not whether flight privileges are financial, but whether the employee’s interest in a governmental matter is financial. Thus, it is well-established that a financial interest in a matter may derive from a job offer or a law firm’s representation of a client, neither of which resembles financial instruments or investment vehicles, and yet both of which can give rise to a disqualifying financial interest in a governmental matter. See 5 C.F.R. § 2640.103(b) (“a disqualifying financial interest might derive from a salary . . . [or] job offer”); Memorandum for Arnold I. Burns, Deputy Attorney General, from Margaret C. Love, Special Counsel, Office of Legal Counsel, Re: Waiver Under 18 U.S.C. 208(b)(1) (Mar. 14, 1988) (law firm’s interest in litigation in which it is involved in a representative capacity may give rise to a financial interest that may be imputed to a government employee who has accepted a position with the firm). 241 Opinions of the Office of Legal Counsel in Volume 28 Id. at 47,214; see also 5 C.F.R. pt. 2640 (final rule); Memorandum for Stephen D. Potts, Director, Office of Government Ethics, from Richard L. Shiffrin, Office of Legal Counsel (Sept. 17, 1996) (concurring in publication of final rule); Office of Government Ethics, 18 U.S.C. § 208 and Defined Benefit Pension Plans, Informal Advisory Op. 99x6, at 3 (Apr. 14, 1999), available at http://www.oge.gov/OGEAdvisories/Legal-Advisories/Legal-Advisories (last visited May 24, 2013) (“Defined Benefit Pension Plans”) (“If an employee is assigned to participate in a particular matter that affects the sponsor of his defined benefit plan, the employee will not ordinarily have a disqualifying financial interest in his defined benefit plan under section 208, unless the matter would have a direct and predictable effect on the sponsor’s ability or willingness to pay the employee’s pension benefit.”); id. at 3 (“If [a matter] could result in the dissolution of the sponsor organization and in its subsequent inability to pay the employee’s pension, the employee’s interest in his pension would be a disqualifying financial interest under section 208.”); id. at 2; cf. President Reagan’s Ability to Receive Retirement Benefits from the State of California, 5 Op. O.L.C. 187, 190 (1981) (concluding that it would not violate the terms or spirit of Article II, Section 1, Clause 7 of the Constitution—which prohibits the President from receiving an emolument from a State while in office—for the President to receive a “pension in which he acquired a vested right six years before he became President, for which he no longer has to perform any services, and of which the State of California cannot deprive him”). As you have described them, flight privileges resemble a “defined” benefit in the sense that matters here. Like the benefit provided under a defined benefit plan, the value of flight privileges does not generally fluctuate depending on the FAA’s regulatory treatment of the airline. Their value to the employee will, of course, be independently affected by the market price of air travel, just as the value of a defined benefit will rise or fall depending on the market performance of the benefit plan’s investments. But the right to realize that value is definite, subject only to the company’s ability to honor the privilege, just as a pension providing a defined benefit is definite, subject only to the company’s ability to honor its funding obligations. If defined benefit plans do not ordinarily give rise to a disqualifying financial interest in the plan’s sponsor, we have no reason to conclude that flight privileges will either. The legislative history of section 208(a) offers further support for this conclusion. While Congress undoubtedly sought to reach genuine conflicts of interest in enacting section 208, nothing in the legislative history of section 208 suggests that Congress intended categorically to prevent government employees from participating in matters involving companies from which they receive retirement benefits. To the contrary, Congress was well aware that “legal protections against conflicts of interest must be so designed as not unnecessarily or unreasonably to impede the recruitment and retention by the Government of those men and women who are most qualified to serve it.” H.R. Rep. No. 87-748, at 6 (1961). Our conclusion— 242 Ethical Issues Raised by Retention and Use of Flight Privileges by FAA Employees that flight privileges normally will not give rise to a disqualifying financial interest in an FAA matter—fully effectuates this intention. A 1978 opinion of this Office on pension and welfare benefits does not alter our conclusion. In that opinion, we concluded that a government employee who continued to receive payments pursuant to the retirement program of his former law firm had a “financial interest” under section 208 in a matter in which the law firm represented a party. Memorandum for Barbara Allen Babcock, Assistant Attorney General, Civil Division, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Potential Conflict Presented by the Participation of Stephen J. Friedman on the Settlement Policy Committee (Feb. 3, 1978). We interpreted section 208 to require disqualification in “any matter affecting a former employer whenever the Government official is continuing to participate in a welfare or benefit plan maintained by that employer, whether or not the employer continues to make contributions—unless the official first obtains an exemption pursuant to § 208(b).” Id. at 9 (footnote omitted). The 1978 opinion was based on the erroneous view that section 208(a) “requires that we look to more than merely the eventual financial impact the governmental matter may have on the employee.” Id. at 6. “It is appropriate,” we reasoned, “to consider as well the financial nexus the employee has with an entity that may be affected by the governmental matter, even if the nexus is such that the financial impact on the entity will not be passed through to the individual employee.” Id. (emphasis added). The 1978 opinion is inconsistent with the direct and predictable effect requirement subsequently adopted by OGE in its regulations and long approved by this Office. It is also inconsistent with the language of section 208 itself, which clearly requires disqualification only where a decision in the “particular matter” at issue has the potential to affect the individual employee’s financial interests. For these reasons, we are constrained to repudiate our 1978 opinion. II. You next ask whether flight privileges constitute an interest that must be analyzed under an OGE regulation, 5 C.F.R. § 2635.502(a) (2003). That regulation states that [w]here an employee knows that a particular matter involving specific parties is likely to have a direct and predictable effect on the financial interest of a member of his household, or knows that a person with whom he has a covered relationship is or represents a party to such matter, and where the employee determines that the circumstances would cause a reasonable person with knowledge of the relevant facts to question his impartiality in the matter, the employee should not participate in the matter unless he has informed the agen- 243 Opinions of the Office of Legal Counsel in Volume 28 cy designee of the appearance problem and received authorization from the agency designee. Id. Under section 2635.502(a), as relevant here, an employee’s circumstances must satisfy two elements before the regulation counsels the employee either to decline to work on the matter or to obtain authorization from the agency designee: (1) the employee must know that a person with whom he has a covered relationship is a party or a party’s representative in a particular matter, and (2) the employee or his agency must determine that a reasonable person would question his impartiality if he participates in that matter.5 In our view, an employee who holds flight privileges and the airline that provided the flight privileges would have a “covered relationship.” According to the regulation, “[a]n employee has a covered relationship with,” among other people, “(i) [a] person . . . with whom the employee has . . . a business, contractual or other financial relationship that involves other than a routine consumer transaction . . . [and] (iv) [a]ny person for whom the employee has, within the last year, served as officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee . . . .” 5 C.F.R. § 2635.502(b) (emphasis added). A flight privileges arrangement would qualify as a “contractual . . . relationship” under section 2635.502(b)(i), because we understand that flight privileges are granted under a contract or a benefit plan, or are otherwise subject to contractual terms. As that relationship would involve “other than a routine consumer transaction”— airlines, after all, do not routinely offer consumers free flight privileges—the FAA employee who holds flight privileges and the airline that provided them would have a “covered relationship” within the meaning of the regulation. The OGE’s informal guidance in this area further supports this construction of the regulation. OGE has stated that “[u]nder 5 C.F.R. § 2635.502(b)(1)(i), . . . [a] vested interest in a defined benefit plan funded and maintained by a former employer would create a covered relationship,” an interpretation that applies with equal force to flight privileges. Defined Benefit Pension Plans at 3 n.3 (emphasis added); cf. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (an agency’s interpretation of its own regulations is entitled to “controlling weight unless it is plainly erroneous or inconsistent with the regulation”). Whether flight privileges would create an appearance problem, satisfying the second element of the regulation, is not a question we can answer in the abstract. As OGE has advised, “OGE is not in a position to decide for an agency whether a reasonable person would question the impartiality of [an] employee’s participation in a particular matter.” Office of Government Ethics, Receipt of Outside Awards 5 Although the first element is also satisfied if the employee knows that the particular matter is likely to have a direct and predictable effect on the financial interest of a member of his household, the analysis of that alternative would largely overlap our analysis of the criminal conflict of interest statute in Part I above. 244 Ethical Issues Raised by Retention and Use of Flight Privileges by FAA Employees by Employees and Outside Activities by Employees, Informal Advisory Op. 00x4, at 4 (Apr. 11, 2000), available at http://www.oge.gov/OGE-Advisories/LegalAdvisories/Legal-Advisories (last visited May 24, 2013). The same generally holds for this Office; the question of an appearance problem is best left to the employee and the agency based on the facts of a particular case. See id.; Office of Government Ethics, Covered Relationship With Private Partner, Informal Advisory Op. 93x25, at 2 (Oct. 1, 1993), available at http://www.oge.gov/OGE-Advisories/ Legal-Advisories/Legal-Advisories (last visited May 24, 2013).6 III. You also ask whether flight privileges are an interest that must be analyzed under 5 C.F.R. § 2635.503 (2003), an OGE regulation that generally prohibits a government employee from participating, for two years, in matters involving his former employer if the employee received an extraordinary payment from that employer prior to entering government service. An “extraordinary payment” is any item, including cash or an investment interest, with a value in excess of $10,000, which is paid: (i) On the basis of a determination made after it became known to the former employer that the individual was being considered for or had accepted a Government position; and (ii) Other than pursuant to the former employer’s established compensation, partnership, or benefits program. A compensation, partnership, or benefits program will be deemed an established program if it is contained in bylaws, a contract or other written form, or if there is a history of similar payments made to others not entering into Federal service. Id. § 2635.503(b)(1). Under the plain terms of the regulation, flight privileges can be a prohibited type of “payment.” While the term “payment” ordinarily suggests money or some 6 We note that under the OGE regulations an agency need not wait for an employee to determine whether a covered relationship would cause a reasonable person to question his impartiality. Section 2635.502(c) says that “the agency designee may make an independent determination” about impartiality “at any time” and “on his own initiative.” 5 C.F.R. § 2635.502(c) (emphasis added). Some might argue that an appearance problem could arise if a high percentage of FAA employees held privileges not generally available to the public from the industry regulated by the FAA, but we do not address the possible collective effect that widespread flight benefits among FAA employees might be perceived to have. The legal standards discussed in this memorandum turn on analysis of individual employees’ personal interests, and there is no concept in the applicable laws of an “agency conflict of interest.” Any effect that might be perceived because of the aggregation or widespread holding of individuals’ financial interests is an issue for policy makers to consider. 245 Opinions of the Office of Legal Counsel in Volume 28 other financial instrument, it also encompasses “compensation.” Webster’s Third New Int’l Dictionary of the English Language Unabridged 1659 (2002) (“payment . . . : the act of paying or giving compensation . . .”). And there is no reason that an airline employee could not be compensated with flight privileges. Moreover, the regulation states that “any item . . . with a value in excess of $10,000” may constitute an extraordinary payment, not just cash or financial instruments. Thus, it is the value, timing and extraordinary nature of a “payment” that brings the payment within the regulation’s orbit, not its form. Granting privileges— whether flight privileges, country club privileges, or any other valuable privileges—as a reward for accepting a government position would pose no less of an impartiality problem than making an equivalent cash payment. While flight privileges can qualify as a type of payment, and therefore must be analyzed under the regulation, we conclude that retiree flight privileges do not meet the regulation’s definition of extraordinary payment. First, we understand that flight privileges are an ordinary benefit within the industry, not one awarded “on the basis of a determination made after” a former employer learns that an individual may enter government service. We are told that the FAA has sought our opinion in part because uncertainty about the ethical implications of flight privileges has impeded the FAA’s ability to recruit former airline industry employees who are already entitled to such privileges and are free to use them if they choose not to enter government service. Second, flight privileges are earned under an “established . . . benefits program,” 5 C.F.R. § 2635.503(b)(1)(ii), because, according to your letter, there is a history of granting them to retiring airline employees who are not entering federal service. See also 57 Fed. Reg. 35,006, 35,028 (Aug. 7, 1992) (OGE rejecting a proposal to define “extraordinary payment” to include payments made under an employment contract or employee benefits plan).7 IV. Lastly, you ask whether flight privileges qualify as “stock” or “any other securities” within the meaning of 5 C.F.R. § 6001.104(b) (2003), which forbids FAA employees, their spouses and their minor children to “hold stock or have any other securities interest in an airline.” Under any conventional standard of meaning, flight privileges do not qualify as “stock or . . . any other securities interest.” “Stock” represents an equity interest in a company, while flight privileges entail no such ownership interest, but merely the privilege of flying for free. Nor do flight privileges qualify as “any other 7 For the same reason, an FAA employee’s use of flight privileges that were earned by virtue of prior employment with the airline and that are available to all similarly situated retirees pursuant to the general retirement benefit policy of the airline, regardless of subsequent government employment, would not constitute a “gift” prohibited by the ethics rules. See 5 C.F.R. § 2635.203(b)(6) (2003). 246 Ethical Issues Raised by Retention and Use of Flight Privileges by FAA Employees securities interest,” as they are not an investment of any kind—either in form or in economic substance. See Securities Act of 1933, Pub. L. No. 73-22, § 2(1), as amended, 15 U.S.C. § 77b(a)(1) (2000) (“The term ‘security’ means any note, stock, treasury stock, security future, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateraltrust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, any put, call, straddle, option, or privilege on any security, certificate of deposit, or group or index of securities (including any interest therein or based on the value thereof), or any put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency, or, in general, any interest or instrument commonly known as a ‘security,’ or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.”); SEC v. Edwards, 540 U.S. 389, 393 (2004) (explaining that under “[t]he test for whether a particular scheme is an investment contract,” and therefore is a “security,” “[w]e look to ‘whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others’”) (quoting SEC v. W.J. Howey Co., 328 U.S. 293, 301 (1946)); Int’l Bhd. of Teamsters v. Daniel, 439 U.S. 551, 553 (1979) (holding that a non-contributory, mandatory pension plan did not constitute a “security” under the Securities Act of 1933 or the Securities Exchange Act of 1934 because there was no “investment of money”); id. at 559–60 (“In every decision of this Court recognizing the presence of a ‘security’ under the Securities Acts, the person found to have been an investor chose to give up a specific consideration in return for a separable financial interest with the characteristics of a security.”). Context bolsters this conclusion. A different section of the regulation, section 6001.104(a), provides that no Federal Railroad Administration (“FRA”) employee may “hold stock or have any other financial interest, including outside employment, in a railroad company.” 5 C.F.R. § 6001.104(a) (emphasis added). By broadly prohibiting FRA employees from holding any financial interest in a railroad, while narrowly prohibiting FAA employees from holding any securities interest in an airline, the regulation confirms that the FAA limitation incorporates only a narrow subset of financial interests and that it excludes non-securities interests like flight privileges. STEVEN G. BRADBURY Principal Deputy Assistant Attorney General Office of Legal Counsel 247

Write a legal research memo on the following topic.

The Twenty-Second Decennial Census N either the E num eration C lause o f the C onstitution nor the C ensus A ct precludes the Bureau o f the C ensus from statistically adjusting “headcounts” in the decennial census for the year 2000 or con­ d u cting the n o n-response follow -up on a sam ple basis. The provision in the C ensus A ct prohibiting sam pling fo r purposes o f apportionm ent o f the H ouse of R epresentatives does not preclude reliance upon statistical adjustm ents that w ould im prove the ac­ cu racy o f “head co u n t” data October 7, 1994 M e m o r a n d u m f o r t h e S o l ic it o r G e n e r a l You have asked, on behalf of the Department of Commerce, for our advice on the questions w hether the use of statistically adjusted census figures would be con­ sistent with the C onstitution, U.S. Const, art. I, § 2, cl. 3, and with the Census Act, 13 U.S.C. §§ 1-307. The questions arise because the traditional method o f taking the census fails to count a significant portion of the population, and in particular disproportionately undercounts identifiable racial and ethnic minorities. In light of these problem s, the Department o f Commerce is considering the use of statistical adjustm ents in the twenty-second decennial census (for the year 2000) before the final count is com pleted in order to improve the accuracy of that census. The De­ partm ent of Com m erce is also considering the use of sampling to conduct the fol­ low-up on households that did not respond to its initial mailing o f questionnaires. A ccordingly, it desires to know w hether such procedures would be lawful. We conclude that both o f the proposed changes in conducting the census would be lawful.* I. The C onstitution “provides the basis for the decennial censuses, but does not specify the details o f their administration.” Seventeenth D ecennial Census , 41 Op. A tt’y Gen. 31, 32 (1949). Instead, the Constitution vests in Congress the power to conduct an “actual Enumeration . . . in such M anner as they shall by Law direct.” U.S. Const, art. I, § 2, cl. 3. Congress’s pow er has in turn been vested in the Bu­ reau of the Census (the “Bureau”), a component o f the D epartment of Commerce. See 13 U.S.C. § 2. " E d ito r’s N ote: S u b se q u en t to the date o f this opinion, the Suprem e C ourt held that the C ensus A ct pro­ h ibits the p ro p o sed uses o f statistical sam p lin g in calcu latin g population for congressional apportionm ent p urposes. S e e D ep a rtm en t o f Com m erce v U nited S ta tes H o u se o f R epresentatives, 119 S C t 765, 779 (1999). T h e C o u rt did not reach the constitutional question. Id. 184 The Tw enty-Second D ecennial Census The primary purpose of the decennial census' is to provide the basis for Congress’s apportionment of seats in the House of Representatives am ong the States.2 The census also serves several other legally significant objectives. His­ torically, the decennial census has been “an enumeration not only of free persons in the States but of free persons in the Territories, and not only an enumeration of persons but the collection of statistics respecting age, sex, and production.” L egal Tender Cases, 79 U.S. (12 W all.) 457, 536 (1870). “The census today serves an important function in the allocation of federal grants to states based on population. In addition, the census also provides important data for Congress and ultimately for the private sector.” B aldrige v. Shapiro, 455 U.S. 345, 353 (1982); see gen erally Note, D em ography an d D istrust: Constitutional Issues o f the F ederal Census, 94 Harv. L. Rev. 841, 844-45 (1981). The traditional method for conducting the decennial census “is a headcount rather than an estimation based on sampling.” Tucker v. U nited States D e p ’t o f Com merce, 958 F.2d 1411, 1412 (7th Cir.), cert, den ied, 506 U.S. 953 (1992).3 The term “headcount” is somewhat misleading, however. “The census . . . is not a headcount in which each and every person residing in the United States on a given date is counted by the Census Bureau. Rather, it is a survey of the population that through the responses of one member of each household attempts to enumerate the entire population.” C arey v. Klutznick, 508 F. Supp. 420, 426 (S.D.N.Y. 1980), r e v ’d, 653 F.2d 732 (2d Cir. 1981), cert, denied, 455 U.S. 999 (1982). In the 1990 census, the Bureau’s tabulation had four phases. First, relying on lists compiled by commercial sources and its own fieldwork, the Bureau derived a mailing list of as many households as it could locate. Second was the “mail out/mail back” phase, in which the Bureau mailed out questionnaires to each household on its list, and requested their return by April 1, 1990. (The return rate was 63%.) The third phase was a follow-up in which the Bureau sent out another round of mailings. The fourth phase comprised efforts by census enumerators, in person, to contact non-responding households (or other reliable sources) to obtain the needed information. Following that, the Bureau undertook “coverage im­ provement programs” designed to reach non-respondents in other ways, including rechecks of all vacant or uninhabitable housing units, recanvassing of selected blocks, an advertising campaign, checks of parolees and probationers, and a local 1 T here is also a m id-decade census. See 13 U S.C . § 141(d) 2 T he apportionm ent o f R epresentatives am ong the Stales in turn affects the allocation o f Electoral C ol­ lege votes to the Stales. See U.S C onst art. II, § I, cl 2. 1 T he first statute authorizing a census, "A n A ct providing for the enum eration o f the Inhabitants o f the U nited S tates" (M ar I, 1790), declared that “the m arshals o f the several districts o f the U nited S tates” were “ authorized and required to cause the num ber o f the inhabitants w ithin th eir respective districts lo be taken,” om itting Indians not taxed. 4 N a tio n a l Stale P a p ers o f ihe U n ited States, 1789-1817, at I (Eileen Daney C arzo ed , 1985). It further placed on “each and every person m ore than sixteen years o f age” the obligation to provide the census-taker “a true account, if required, to the b est o f his or her know ledge, of all and every person belonging to [the resp o n d en t's] family ” Id at 3. 185 Opinions o f th e O ffice o f L eg a l Counsel governm ent review. See C ity o f N ew York v. U nited States D e p ’t o f Com m erce, 34 F.3d 1114 (2d Cir. 1994), r e v ’d, 517 U.S. 1 (1 9 9 6 )4 Like earlier censuses, the 1990 census concededly did not count the entire population of the United States.5 G iven the inherent difficulties of census-taking and the existence o f financial and tim e constraints, some degree o f inaccuracy in the census count is perhaps inevitable. The Bureau itself believes that “every cen­ sus has necessarily involved an undercount,” Young v. Klutznick, 497 F. Supp. 1318, 1327 (E.D. M ich. 1980), r e v ’d, 652 F.2d 617 (6th Cir. 1981), cert, denied, 455 U.S. 939 (1982), and the courts agree that “a perfectly accurate count of up­ wards of 250 m illion people” is sim ply not “feasible.” C ity o f D etroit v. Franklin, 4 F.3d at 1377.6 Far more troubling than the bare existence of an undercount is the fact that the 1990 census perpetuated a pattern, the existence of which has been recognized since 1940, o f differentially undercounting African Americans.7 The 1990 census also differentially undercounted Hispanics: the estimated undercount for that group was 5.2% , as against an estim ated undercount of 2.1% for the popu­ lation at large.8 The Bureau “specifically acknow ledge^] an undercount in the 1990 census ranging from 1.7 percent of whites to 5.2 percent of Hispanics.”9 Despite that acknowledgement, the Secretary of Commerce declined in 1991 to adjust the 1990 census figures to correct for the undercounts.10 The Secretary’s 4 T h e B u re a u ’s effo rts to o b tain as accurate a count as po ssib le have been found to be ‘‘extraordinary A ccording to one co u rt, the 1990 census is sa id to be one o f th e best ever taken in this country because d e ­ spite o u r larg e po p u latio n , approxim ately 9 8 percent o f the population w as counted.” C itx o f D etroit v. F ranklin, 4 F 3d 1367, 1376 (6 th C ir. 1993), c e r t denied, 5 1 0 U .S 1176(1994). 5 T h e first c en su s in 1790 co u n ted over 3 ,8 9 0 ,0 0 0 people, but fell short o f the expected 4,000,000 figure G eorge W ash in g to n th o u g h t it “certain’’ that “ o u r rea l num bers will exceed, greatly, the official returns of them ,’* and T h o m as Jefferso n considered the uncounted p o p u latio n “very g reat.” See B a ld n g e v Shapiro, 455 U .S at 353 n 8. 6 S e e a lso K a rc h e r v D a g g ett, 462 U S 7 2 5 , 732 (1983) ( “ the census data are not perfect, and the wellknow n restlessn ess o f the A m erican people m e a n s that p o p u latio n counts fo r particular localities are outdated long b efo re they are c o m p leted "); id at 7 7 2 (W hite, J , d issen tin g) (“the census . . cannot be perfect”), G affney v C u m m in g s, 412 U .S. 735, 745 (1 9 7 3 ) (decennial census figures “ may be as accurate as such im m ense u n d ertak in g s can be, but they are in h e re n tly less th an absolutely accurate ”). 7 In the 1990 cen su s, “ B lacks w ere und erco u n ted by 4 8 % , H ispanics by 5 2% , A sian-Pacific Islanders by 3.1% , A m erican Indians by 5.0% , and n on-B lacks by 1.7% ” S en ate o f C alifornia v M osbacher, 968 F 2 d 974, 975 (9 th C ir 1992) “In 1940, 10 3 p e rc en t o f blacks w ere missed, com pared to 5 1 percent o f w hites, a gap o f 5.2 p ercen tag e points. In 1980, 6 2 p e rc en t o f blacks w ere missed, com pared to I 3 percent o f whites, for a sim ila r disparity o f 4 9 percentage p o in ts.” Sam uel Issach aro ff & A llan J Lichtm an, The C ensus Un­ de rc o u n t a n d M in o rity R epresentation T h e C o n stitu tio n a l O bligation o f the States to G uarantee E qual R ep resen ta tio n , 13 R ev. L ing. 1, 8 (1993) S e e also G ajfnev v. C um m ings, 412 U S at 745 n.10 8 S e e S tephen E Fienberg, The New York C ity C ensus A d ju stm ent T n a l: W itness f o r the P laintiffs, 34 J u n m e tric s J. 65, 70-71 (1993) 9 Tucker, 958 F.2d at 1413; s e e generally D e cisio n o f th e S ecretary o f C om m erce on W hether a S ta tisti­ c a l A d ju stm e n t o f the 1990 C en su s o f P o p u la tio n a n d H o u sin g Should B e M ade f o r C overage D eficiencies R esu ltin g in an O verco u n t o r U ndercount o f th e P opulation, 5 6 Fed Reg. 33,582 (1991) 10 T h e S e c re ta ry ’s reaso n in g , as recapitulated by the S ev en th Circuit, w as that w h ile a d ju stm en t by the b e st method av ailab le w ould increase the c ensus totals, it w ould not sig ­ n ifican tly alter the apportionm ent o f s e a ts in the H ouse o f R epresentatives am ong the slates, in part becau se there is overcounting as w ell as und erco u n tin g A fter the dust settled, Illin o is’s re p ­ resen tatio n w ould be unchanged, a lth o u g h C alifo rn ia an d A rizona w ould pick up a few seats at the ex p en se o f P ennsylvania and W isco n sin Federal grant allocations m ight not be m uch af- 186 The Tw enty-Second D ecennial Census decision not to make the adjustment has been the subject of litigation in three cir­ cuits, with conflicting results. Com pare Tucker (plaintiffs had no judicially en­ forceable rights) and City o f D etroit (same) with City o f N ew York (remanding with instruction that refusal to adjust could not be upheld unless shown to be necessary to a legitimate governmental interest). The Bureau is currently considering whether to adjust the “raw count” o f the next decennial census for the year 2000. Sampling was used in connection with the 1990 census to carry out the “Post-Enumeration Survey” (the “PES”) that m eas­ ured the undercount for that year. See C ity o f N ew York, 34 F.3d at 1117; David A. Freedman, A djusting the Census o f 1990, 34 Jurimetrics J. 99, 102-03 (1993). In that census, the Bureau tested the accuracy of the count by a PES o f some 174,000 households and then matching the questionnaires for households in the PES against the same households in the census (including both mail-backs and non-response follow-ups). The matching process provided the Bureau with data to develop adjusting factors, or “multipliers,” to capture the estimated under- or over­ count for some 1,392 demographic subgroups. The application of the multipliers to the enumeration data for the subgroups produced the conclusion that 1.6% of the total population had not been counted in the census. For the 2000 census, the Bu­ reau is considering the use of a sample-based adjustment as in 1990, except that it would complete the adjustment before its deadline for reporting State totals to the President. The Bureau is also considering whether to conduct the non-response follow-up on a sample basis, rather than sending enumerators to each non-responding house­ hold. Specifically, it is proposing to contact, by telephone or in person, between 25% and 50% of the households that failed to return the census questionnaire. The Bureau would then extrapolate from the results of this sample to estimate the whole non-respondent population. The Bureau believes that the use of this procedure would save it between $300 and $600 million. At the same time, it advises us that the procedure would also produce greater accuracy than was achieved in the 1990 census. In the past, the Bureau took the position that it would be legally precluded from adjusting the census for apportionment purposes. See Census U ndercount A d ju st­ ment: B asis f o r D ecision, 45 Fed. Reg. 69,366, 69,371-73 (1980). This claim was based on both constitutional and statutory grounds. First, the Bureau has argued that fected eith er M oreover, any attem pt to m ake a statistical adjustm ent to the m echanical headcount w ould, by injecting judgm ental factors — and ones o f considerable technical c o m ­ plexity to boot, — open the census process to charges o f political m anipulation A nd w hile a statistical adjustm ent for the undercount w ould undoubtedly im prove the accuracy o f the n a tio n ­ wide c en su s total, there is no consensus am ong statisticians and dem ographers that it w ould m ake the state and district census totals — the level at w hich the adjustm ent w ould actually af­ fect representation and funding — m ore accurate Tucker, 958 F .2d at 1413 (citations o m itted); see also C ttv o f N ew York., 34 F 3d at 1122-23; S e n a te o f C ali­ fo rn ia , 968 F 2d at 975 187 Opinions o f the O ffice o f L eg a l C ounsel interpretation o f the phrase “actual enum eration” in Article 1, Sec­ tion 2, Clause 3 must begin with the words themselves, and that the term s “census” and “enumeration” mean nothing more or less than a headcount. [It] say[s] that the use of the m odifier “actual” with the word “enum eration” can only reinforce the conclusion that the fram ers o f the Constitution intended a headcount, and nothing but a headcount. [It] further reifies] upon the fact that, with the exception o f the 1970 census when imputations were performed which added approxim ately 4.9 million people, the census has been, since 1790, an actual headcount and nothing more. Young v. K lutznick, 4 91 F. Supp. at 1332. The Bureau has also argued in the past that “even if the Constitution does not prohibit an adjustment for apportionment of Representatives, C ongress has by statute prohibited such an adjustment.” Id. at 1334. W e consider these issues in turn. II. The Enum eration Clause of the Constitution reads in relevant part as follows: R epresentatives . . . shall be apportioned among the several States . . . according to their respective N um bers . . . . The actual Enu­ meration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term o f ten Years, in such M anner as they shall by Law direct. U.S. Const, art. I, § 2, cl. 3; see a lso U.S. Const, amend. XIV, § 2 (“R epresentatives shall be apportioned among the several States according to their respective numbers, counting the w hole num ber o f persons in each State . . . . ”). The Enum eration Clause was one facet of the “Great Com prom ise” at the Con­ stitutional Convention, which provided for equal representation of the States in a Senate, and representation of “the People of the several States” in a House of Rep­ resentatives. U.S. Const, art. I, § 2, cl. 1; see gen era lly W esberry v. Sanders, 376 U.S. 1, 10-16 (1964); D em ography an d D istrust, 94 Harv. L. Rev. at 846. Be­ cause the Fram ers “intended that in allocating Congressmen the number assigned to each State should be determined solely by the number of the State’s inhabitants . . ..[t]he C onstitution embodied Edm und R andolph’s proposal for a periodic cen­ sus to ensure ‘fair representation o f the people’” W esberry, 376 U.S. at 13-14 (citations omitted). Before the first decennial census in 1790, no modern Nation had undertaken a census (although all the States of the United States, with some exceptions in the South, had done so). See Hyman Alterman, Counting P eople: The Census in 188 The T w enty-Second D ecennial Census H istory 164 (1969). Thus, when the Framers were apportioning seats in the first House of Representatives, their decisions were the outcome of “conjecture and political compromise: [they] apparently assigned some of the smaller States a number of Representatives not justified by the size of their populations.” M em o­ randum for Wendell L. W ilkie II, General Counsel, Department o f Commerce, from Stuart M. Gerson, Assistant Attorney General, Civil Division at 4 (July 9, 1991) (the “Gerson M em orandum ”).11 The C onstitution’s reference to an “actual Enumeration” must be explained by reference to the Fram ers’ ignorance of the exact size of the population and its distribution among the States: “[w]hen the Constitution speaks of actual enumeration, it speaks o f that as opposed to esti­ m ates.’’ Young v. Klutznick, 497 F. Supp. at 1332 (emphasis added). A cco rd Memorandum for Alice Daniel, Assistant Attorney General, Civil Division, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: P ending Litigation Concerning S tatistical A djustm ent o f 1980 D ecennial Census P opulation D ata at 2 (Sept. 25, 1980) (the “Harmon M em orandum ”) (“the phrase [‘actual Enum eration’] was chosen because an accurate population count was es­ sential once the Convention decided, in the Great Compromise, that representation in the House would be apportioned on the basis of population.”). The proposal for a periodic enumeration of the population originated, as noted above, with Edmund Randolph, as an incident to the Great Compromise. On July 10, Randolph moved a proposal calling for Congress “to cause a census, and esti­ mate to be taken within one year after its first meeting; and every [left blank] years thereafter — and that the L egislature] arrange the Representation accordingly.” James Madison, N otes o f D ebates in the F ederal Convention o f 1 7 8 7 , at 265 (Adrienne Koch ed., 1966) (bracketed material added). George M ason spoke in favor of the motion on the next day, declaring that “[h]e did not object to the con­ jectural ratio which was to prevail in the outset; but considered a Revision from time to time according to some permanent & precise standard as essential to [the] fair representation required in the [first] branch.” Id. at 266. Later in the debate, Randolph repeated M ason’s point that “the ratio fix[ed] for the [first] meeting [of Congress] was a mere conjecture.” Id. at 267. On August 21, Madison repeated that “[t]he last apportionment o f Cong[ress], on which the number o f Representa­ tives was founded, was conjectural and meant only as a temporary rule till a Cen­ sus should be established.” Id. at 497. Madison also explained in The F ederalist that the provision in Article I, Section 2, Clause 3 of the Constitution for a House o f Representatives that would consist of sixty-five members in the First Congress was merely “a temporary regulation,” to be revised when the findings o f the census S ee also H ym an A lterm an, C ounting P eople at 187-88 ("T he C onvention had available to it estim ates 11 o f the w hite and slave populations in the v arious stales M ainly on the basis o f these estim ates the C o n v en ­ tion decided how m any representatives each state should have until the first census w as ta k e n .”). 189 Opinions o f the O ffice o f L eg a l C ounsel of 1790 becam e known. The F ederalist No. 55, at 343 (James M adison) (Clinton R ossiter ed., 1961).12 These discussions make it clear that, in requiring an “ actual ” enumeration, the Framers m eant a set o f figures that was not a m atter of conjecture and compromise, such as the figures they had themselves provisionally assumed. An “actual” enu­ meration would instead be based, as George M ason put it, on “some permanent & precise standard.” There is no indication that the Framers insisted that Congress adopt a “headcount” as the sole m ethod for carrying out the enumeration, even if later refinem ents in the metric of populations would produce more accurate meas­ ures. Furtherm ore, the Fram ers left it to Congress to conduct the enumeration “in such M anner as they shall by Law direct.” U.S. Const, art. I, § 2, cl. 3. That ex­ plicit delegation im plies that the Fram ers were w illing to allow for innovation in the choice o f m easuring techniques; and, not surprisingly, “the Census Bureau’s unbroken historical practice really has been to use modern knowledge and scien­ tific techniques to get further and further away from simple headcounting.” Young v. K lutznick, 497 F. Supp. at 1333.13 “The result, and not the method, is the im­ portant lesson of the historical experience.” Harm on Memorandum at 2. In addition, Article I, Section 2, Clause 3 o f the Constitution was amended by section 2 o f the Fourteenth Amendment. Section 2 declares that “Representatives shall be apportioned am ong the several States according to their respective num­ bers, counting the whole number o f persons in each State, excluding Indians not taxed.” U.S. Const, amend. XIV, § 2. Further, section 5 confers on Congress the “power to enforce, by appropriate legislation, the provisions of this article.” Id. § 5. C ongress’s powers under section 5 have been “equated . . . with the broad powers expressed in the Necessary and Proper Clause, U.S. Const, art. I, § 8, cl. 18. ‘Correctly viewed, § 5 is a positive grant o f legislative power authorizing Congress to exercise its discretion in determ ining whether and what legislation is needed to secure the guarantees o f the Fourteenth Am endm ent.’” Fullilove v. K lutznick, 448 U.S. 448, 476 (1980) (plurality opinion) (quoting K atzenbach v. M organ , 384 U.S. 641, 651 (1966)). It follows that Congress has broad power to determ ine how to carry out the apportionm ent called for by section 2, and to con­ duct the enum eration on which that apportionm ent is based. See M assachusetts v. M osbach er, 785 F. Supp. 230, 253 (D. M ass.) (three-judge court) (“the exercise of Section 5 pow ers here in defining the m ethodology for reapportionment falls 12 U S C o n st art. I, § 2, cl 3 provided th a t “ until such e n u m eration shall be m ade,’' the Slates were to have p red eterm in ed n um bers o f R epresentatives: three fo r N ew H am pshire, eight for M assachusetts, one for R hode Island, five for C onnecticut, six for N ew York, four for N ew Jersey, eight for Pennsylvania, one for D elaw are, six fo r M aryland, ten for Virginia, five for N orth C aro lina, five for South C arolina and three for G eorgia, for a total o f sixty-five n "In stead o f head co u n tin g people, [the B u reau ] uses the m ail-out form and the m ail-out/m ail-back for­ mat to en u m e ra te m ost persons today ” Id S e e also C ity o f D etro it, 4 F 3d at 1377 ( ‘k[t]he C ensus Bureau has not u n d ertak en a d o o r-to -d o o r cam paign sin ce the 1960 census and plaintiffs have presented no evidence indicating th at such an effort w ould lead to any more accurate re su lts” ) 190 The Tw enty-Second D ecennial Census squarely within the settled recognition of the competence of Congress as a legisla­ tive fact finder”), r e v ’d sub nom. Franklin v. M assachusetts, 505 U.S. 788 (1992). It would be strange indeed to suppose that Congress — or its delegate, the Bureau — lacked the power to authorize a statistical adjustment that would correct the persistent and acknowledged undercounting of African Americans in that enu­ meration, particularly in view of the fact that the Fourteenth Amendment was pri­ marily intended for the protection of that class. See S trauder v. W est Virginia, 100 U.S. 303, 306(1880). Finally, constitutional plaintiffs injured by the decision to use adjusted census data for apportionment might argue that so sharp a departure from the B ureau’s longstanding practices was unjustified.14 See Senate o f California, 968 F.2d at 978 (“the method by which the Secretary is to do the count . . . is generally expected to be a head count”); see a lso Seventeenth D ecennial Census, 41 Op. A tt’y Gen. at 34 (if the Director “has consistently followed the practice in question over a long pe­ riod of time, and it has not been challenged in the Congress or elsewhere . . . his interpretation ought not to be disturbed except for very weighty reasons”) .15 It could be contended that the use of unadjusted “headcounts” almost invariably since the first census of 1790 represents a practical construction of the Enumeration Clause which the Executive, at least absent weighty reasons, may not reverse. See, e.g., Smiley v. Holm, 285 U.S. 355, 369 (1932) (“long and continuous interpreta­ tion in the course of official action under the law may aid in removing doubts as to its meaning. This is especially true in the case o f constitutional provisions gov­ erning the exercise of political rights . . . .”); The P ocket Veto Case, 279 U .S. 655, 688-90 (1929). W e believe, however, that the change in the Bureau’s policy would be upheld against an attack of this nature if there were adequate proof that statisti­ cal adjustments would be feasible and would generate more accurate counts o f both the total population and of minorities. Thus, in Franklin v. M assachusetts, the Court upheld the Bureau’s changed policy of allocating overseas government personnel to the several states for resi­ dence purposes for the 1990 census. The Court stated that 14 The Couri has held thal ' ‘[c]onslitulional challenges lo apportionm ent are justiciable " F ranklin v M a n a c h u selts, 505 U S at 801 W hether constitutional plaintiffs ‘‘have standing lo challenge the accuracy o f the data " tabulated by the B ureau, and 'w h eth er the injury is redressable by the relief sought," id at 802, are o f course separate issues. W e shall assum e here thal those conditions m ight be met. The availability of review under the A dm inistrative Procedure Act (the “A P A ") o f the use o f adjusted data for reapportionm ent seem s doubtful after Franklin, how ever T he APA perm its review only o f certain "final" agency actions under 5 U.S C § 704 In this case, as in Franklin, it w ould appear that "the final action com plained o f is that of the President, and the President is not an agency w ithin the m eaning o f the Act " 505 U S at 7 9 6 W e note that F ra n klin 's ruling on the APA represented the view o f a bare m ajority o f five Justices (including Justice W hite), and m ight not be extended by the present C ourt 15 For analogous reasons, if A PA review w ere available, a change in policy lo allow statistical adjustm ents m ight be attacked as arbitrary, capricious o r abusive o f discretion under 5 U S C § 706(2)(A ) S e e M in o r Vehicle MJrs A s s ’n v. Stale Farm M m . A u to Ins Co , 463 U S 29, 42-45 (1983) (presum ption in favor of settled agency practice) W e believe thal the proposed policy change w ould survive review under that stan ­ dard 191 Opinions o f the O ffice o f L egal Counsel the Secretary of Commerce made a judgm ent, consonant with, though not dictated by, the text and history of the Constitution, that m any federal employees tem porarily stationed overseas had retained their ties to the States and could and should be counted toward their S tates’ representation in C ongress . . . . The Secretary’s judgm ent does not ham per the underlying constitutional goal of equal repre­ sentation, but, assuming that employees temporarily stationed abroad have indeed retained their ties to their home States, actually prom otes equality. 505 U.S. at 806. In the present case, the validity o f the policy change would turn largely on the evidentiary showing that the use o f statistical adjustments will produce a more ac­ curate count of the population than the bare “headcount” data alone. It appears to us that the factual predicate for the change to adjusted figures is adequate. As the Second Circuit pointed out, the district court in C ity o f N ew York found “that the PES-indicated statistical adjustment was feasible; that for most purposes and for m ost of the population that adjustment would result in a more accurate count than the original census; and that the adjustm ent would lessen the disproportionate un­ dercounting of m inorities.” City o f N ew York , 34 F.3d at 1129. Assuming that sim ilar findings would hold true for the next decennial census, then we see no rea­ son why the Bureau, in the exercise o f its expertise and discretion, may not alter its past practice and adjust the census figures it obtains through a “headcount.” 16 A ccordingly, we conclude that the Constitution does not preclude the Bureau from em ploying technically and administratively feasible adjustment techniques to correct undercounting in the next decennial census. III. The Census A ct includes two provisions authorizing the use of statistical meth­ ods, including “sam pling,” in conducting its statutory responsibilities. The first statute, 13 U.S.C. § 141(a), states that [t]he Secretary shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as o f the first day of April of such year, which date shall be known as the “decennial census date”, in such form and content as he may determine, including the use of sam pling procedures and special surveys. 16 M o reo v er, in lig h t o f the B ureau's p osition thal the use o f a sam ple-based follow -up for enum erating n on-resp o n d en t h o u seh o ld s w ould improve th e accuracy o f the final count w hile at the sam e tim e saving the B ureau u p w ard s o f $ 3 0 0 m illion, w e can see n o constitutional o bjection to the introduction o f that procedure. 192 The Tw enty-Second D ecennial Census The second statute, 13 U.S.C. § 195, authorizes, indeed mandates, the use of sampling, but with a limitation relating to apportionment [e]xcept for the determination of population for purposes o f appor­ tionment of Representatives in Congress among the several States, the Secretary shall, if he considers it feasible, authorize the use of the statistical method known as “sam pling” in carrying out the pro­ visions of this title. In the past, the Bureau has taken the position that § 195 prohibits statistical ad­ justm ent of census data for purposes of apportionment. The difficulty centered on § 195’s prohibition on the use of “sampling” in determining the size o f the popula­ tion for purposes of apportionment. Since the scope of § 195’s exception is not plain from the language of the statute, we turn to the legislative history of that sec­ tion. Congress enacted § 195 in 1957, but in a form that authorized, rather than re­ quired, the use of sampling; a 1976 amendment transformed the Secretary’s authorization into the conditional mandate of the current statute.17 The enacting Congress of 1957 considered § 195 to be merely a change “of an administrative nature” that was “needed for the timely and efficient performance of the biggest jobs the Bureau of the Census has ever undertaken.” S. Rep. No. 85-698, at 2 (1957), reprinted in 1957 U.S.C.C.A.N. 1706, 1707. The proviso gave the Bureau the “authority to use sampling in connection with censuses except for the determ i­ nation of the population for apportionment purposes.” Id. at 3, rep rin ted in 1957 U.S.C.C.A.N. at 1708. W hat Congress originally meant by “sam pling” is not clear. In testimony in support of the 1957 legislation, Robert W. Burgess, the Director o f the Bureau of the Census, explained that [t]he use of sampling procedures would be authorized by the pro­ posed new section 195. It has generally been held that the term “census” implies a complete enumeration. Experience has shown that some of the information which is desired in connection with a census could be secured efficiently through a sample survey which is conducted concurrently with the complete enumeration o f other items; that in some instances a portion of the universe to be in­ cluded might be efficiently covered on a sample rather than a com ­ plete enumeration basis and that under some circumstances a sample enumeration or a sample census might be substituted for a 17 As enacted in 1957, the statute had stated that "[e]xcept for the determ ination o f population for apportionm ent purposes, the Secretary m ay, w here he deem s it appropriate, authorize the use o f the statistical m ethod known as 'sam p lin g ' in carry in g out the provisions o f this title “ Pub L N o 85-207, § 14, 71 Stat 4 8 1 ,4 8 4 (1957) 193 Opinions o f th e Office o f L egal Counsel full census to the advantage of the Government. This section, in com bination with section 193, would give recognition to these facts and provide the necessary authority to the Secretary to permit the use o f sam pling when he believes that it would be advantageous to do so. A m endm ent o f Title 13, U nited States Code, Relating to Census: H earings on H.R. 7911 B efore the H ouse Com mittee on P ost O ffice an d C ivil S ervice , 85th Cong. 7- 8 (1 9 5 7 ). The D irector’s testim ony suggests that in enacting § 195, Congress intended that the Bureau conduct a “complete enum eration” or a “full census” when deter­ mining the size of the population for apportionment purposes, but that the Bureau could use “sam pling” in other contexts, where a “sample enumeration” or a “sample census” might be used “to the advantage o f the G overnm ent.” Read in the light o f the testimony, the statute’s preclusion o f “sam pling” need not have meant that statistical adjustm ent o f census figures was forbidden: Congress may well have intended only that the decennial census not be a “sample census.” Moreover, a “com plete enum eration” or “full census” may affirmatively require statistical adjustm ents o f “headcount” data to be made. O ur Office has previously argued that the 1957 legislative history should not be understood to preclude statistical adjustm ent. Citing the testimony quoted above, we argued that “ [sjam pling refers to a representative portion of the whole . . . while adjustm ent refers to additions to the whole, here the headcount. As we read the Census Act, there is no statutory prohibition o f statistical adjustm ent.” Harmon M em orandum at 3 (citation omitted). The Congressional Research Service (the “CRS”), however, reviewed the same testimony and drew a contrary inference: it appears that when Section 195 was originally enacted, the De­ partm ent of C om m erce took the position that an actual enumeration was required for all decennial census purposes. Section 195 was enacted in order to relieve this restriction for purposes other than apportionm ent by sanctioning the use o f sampling when appropri­ ate. There was no need to m ention other forms o f estimating popu­ lation since this section was making an exception to the general requirem ent o f an actual enumeration only for sampling. Therefore, one may conclude that Section 195 was not intended to sanction the use o f m ethods o f estimating population other than “sampling,” and did not intend to permit the use of this method for purposes of ap­ portionment. Congressional Research Service, Library of Congress, L egal C onsiderations in C ensus Bureau Use o f Statistical P rojection Techniques to Include Uncounted 194 The T w enty-Second D ecennial Census Individuals For P urposes o f C ongressional R eapportionm ent (M ar. 27, 1980), (report prepared for Congressional use), reprin ted in P roblem s with the 1980 C en ­ sus Count: Joint H earing Before the Subcomm. on Com merce, Consumer, a n d M onetary Affairs o f the House Comm, on G overnm ent O perations, an d the Sub­ comm. on Census an d P opulation o f the House Comm, on P ost Office a n d C ivil Service, 96th Cong. 190 (1980) (the “Joint Hearing”). The 1976 legislation amending the Census Act, Act of Oct. 17, 1976, Pub. L. No. 94-521, 90 Stat. 2459, 2464, was primarily concerned with the establishment of mid-decade censuses. In carrying forward (and amending) § 195, we believe that Congress meant that while reliance on sampling alone might be appropriate or desirable for mid-decade censuses, it should not be the exclusive procedure for tabulating the population in decennial censuses.18 So understood, the 1976 re­ enactment does not bar the statistical adjustment of the decennial census if such adjustments would improve their accuracy. This interpretation of the 1976 legislative history is not uncontroverted. See Gerson M emorandum at 11 (“C ongress’ amendment of Section 195 in 1976 is similarly open to two alternative interpretations.”). The CRS, noting that both the Com ptroller General and the Bureau had advised Congress in 1976 o f ongoing developments in estimating or allocating populations other than sampling, argued that “it would be logically inconsistent for Congress to prohibit sampling for pur­ poses o f reapportionment, but at the sam e time to permit the use of other tech­ niques whose reliability had not yet been determ ined.” Joint Hearing at 188. Based on its review of the legislative history, CRS concluded that “the use o f demographic estimates for purposes of apportionment of Representatives among the States . . . is prohibited by Section 195 of Title 13.” Id. at 192.19 In our judgm ent, the better view is that the Census Act does not preclude the Bureau from engaging in statistical adjustments o f the next set of decennial census figures. See Franklin v. M assachusetts, 505 U.S. at 820 (Stevens, J., joined by 18 The S enate Report stated that the section o f the 1976 legislation that m odified 13 U S.C. § 195 '“differs from present language w hich grants the Secretary discretion lo use sam pling w hen it is considered a p p ro p ri­ ate The sectio n as am ended strengthens congressional intent that, w henever possible, sam pling shall be used ’’ S R ep No 94-1256, at 6 (1976), reprinted m 1976 U S .C .C A.N. 5463, 5468 19 One fu rth er aspect o f the 1976 legislative history should be noted In the 1970 decennial census, the Bureau used “sam pling" to add to the national total the figure o f alm ost five m illion people believed m issing from the h ead co u n t The B ureau estim ated that it had not co n tacted som e 10 2 m illion people, or about 5% o f the po pulation O f this 10.2 m illion not actually counted, 4 9 m illion w ere included in the official count by “ im putation ” and allocated am ong the States for apportionm ent o f H ouse seats. Young v K lu tzn ick , 497 F. Supp at 1321, see also G erson M em orandum at 15 ( ‘‘In effect, a portion o f the population w as not ta b u ­ lated directly in 1970 Instead, the Bureau obtained an estim ate o f its size from the results o f statistical sam pling and added that estim ate to the total population count "). The d istrict court in Young inferred that w hen C o n g ress am ended § 195 in 1976, it was “well aw are" o f the B ureau's adjustm ent o f the 1970 census data and im pliedly consented to that practice 497 F Supp at 1334-35 The court cited no direct evidence, how ever, thal C ongress was aw are of, and approved, the 1970 census adjustm ent See G erson M em orandum at 15 M oreover, as the Bureau argued, see Young, 4 9 7 F Supp at 1334, the re-enactm ent o f t} 195 (w ith essentially m inor changes from 1957) could be interpreted as a ratification o f the B u re au 's m ore traditional practice o f using only a headcount 195 O pinions o f the Office o f L eg a l C ounsel Blackm un, Kennedy and Souter, JJ., concurring in part and concurring in judg­ ment) (Census A ct “em bodies a duty to conduct a census that is accurate and that fairly accounts for the crucial representational rights that depend on the census and the apportionm ent”). A non-preclusive reading gives due weight to the fact that, when it re-enacted § 195 in 1976, C ongress was primarily concerned with institut­ ing m id -d eca d e censuses. Its prohibition on “sam pling” in decennial censuses ap­ pears to have m eant only that while a procedure relying on “sampling” alone might be the m ost cost-effective means to discover the information sought in a mid­ decade census, the Bureau should not rely on “sam pling” as its exclusive method of tabulating population figures in the decennial census. The use o f sampling tech­ niques in the m id-decade census is “probably a pragmatic necessity in that in­ stance, given the vast mobilization of people and resources needed to conduct an even som ew hat accurate head count.” Senate o f California, 968 F.2d at 978. De­ spite the additional costs entailed, however, Congress did not wish the decennial census to consist o f “a mere statistical m anipulation through the use of sampling and other techniques.” Id. Nothing in amended § 195 p ro sc rib e d the use o f sam­ pling or other statistical devices in connection with the decennial “headcount,” however, if such adjustm ents would result in a more accurate tabulation. Furtherm ore, in adopting the Census Act, Congress “left the actual administra­ tion o f a great num ber o f necessary details to the judgm ent and discretion of the D irector o f the Census.” Seventeenth D ecennial Census, 41 Op. A tt’y Gen. at 33. Standing alone, § 141(a), which authorizes the D irector to take the decennial cen­ sus “in such form and content as he may determine, including the use of sampling procedures and special surveys,” w ould seem to permit statistical adjustments, if in the D irector’s judgm ent they would produce greater accuracy. W hile § 195 un­ doubtedly m akes an exception for the use of sampling in apportionment, that ex­ ception can be construed narrowly, as befits C ongress’s otherwise broad delegation of pow er to the Bureau: the section could be taken to mean that while census fig­ ures used for apportionm ent may not be based on sampling alone, it is permissible to use population sam ples as one elem ent in a more complex operation by which a prior “headcount” is corrected. Such a reading has in fact generally been adopted by the courts. See C arey v. Klutznick, 508 F. Supp. at 415; Young v. Klutznick, 497 F. Supp. at 1334-35; see also Gerson M em orandum at 18 (“the weight o f ex­ isting caselaw ” is “that Section 195 does not preclude statistical adjustment”).20 M oreover, if § 195 were read as preclusive, its constitutionality would be highly suspect. Because (as shown above) a non-preclusive reading is a reasonable one, it should be preferred. Substantial constitutional issues would arise under both the Enumeration Clause and the Fifth A m endm ent if § 195 were construed to prevent the Bureau from ad­ 20 B u t see Jeffrey S C ram ptor, Comment, Lies, D am n L ies a n d Sta tistic.1 D ispelling Som e M yths S u r ­ rounding the U n ited S ta te s C en su s, 1990 D et. C L R ev 71 (criticizing case law ); G erson M em orandum at 18 C‘[w ]e can foresee a c o u rt deciding that S e c tio n 195, on its face, prohibits statistical adjustm ent"). 196 The Tw enty-Second D ecennial Census justing census data for apportionment. The Enumeration Clause prescribes that Representatives be apportioned to the several States “according to their respective Numbers,” and it can be argued that the Clause is violated if Representatives are apportioned on the basis of a census count that is known to be deficient, but that could be rendered more accurate by feasible adjustments. See Franklin v. M a ssa ­ chusetts, 505 U.S. at 806 (Bureau’s decision to allocate government personnel sta­ tioned abroad to State designated as home of record “does not ham per the underlying constitutional goal o f equal representation, but . . . actually promotes equality”); United States D e p ’t o f Com m erce v. M ontana, 503 U.S. 442, 461 (1992) (Court “might well find” that requirement that Representatives be appor­ tioned by reference to the populations o f the several States “em bodied] the same principle of equality” as found in W esberry), C arey v. Klutznick, 508 F. Supp. at 414 (language of Enumeration Clause evinces “an intent that apportionment be based on a census that most accurately reflects the true population of each state”); cf. W esberry, 376 U.S. at 13-14. Furthermore, “[t]he Fifth Amendment . . . might be thought, by analogy to the decisions invalidating the malapportionment of state legislatures under the equal protection clause, to require the federal government to apportion congressional seats . . . in accordance with an accurate estimate of the number of people in each state.” Tucker, 958 F.2d at 1414. See, e.g., R eynolds v. Sims, 377 U.S. 533, 555 (1964) (“the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exer­ cise of the franchise”). Thus, the Second Circuit has found that the B ureau’s deci­ sion not to adjust the 1990 census figures was constitutionally suspect under the Fifth Amendment: [B]oth the nature of the right and the nature o f the affected classes are factors that traditionally require that the governm ent’s action be given heightened scrutiny: the right to have one’s vote counted equally is fundamental and constitutionally protected, and the un­ adjusted census undercount disproportionately disadvantages cer­ tain identifiable minority groups. . . . That the goal o f precise equality cannot be achieved nationwide . . . does not relieve the fed­ eral government of the obligation to make a good-faith effort to achieve voting-power equality “as nearly as is practicable.” C ity o f N ew York, 34 F.3d at 1128, 1129 (citation omitted). We need not here consider whether the Second C ircuit’s view of the merits is correct; nor need we address the issue whether the question the court decided was litigable. Suffice it to say that there would be substantial constitutional difficulties under both the Enumeration Clause and the Fifth Amendment if § 195 were under­ stood to prohibit the Bureau from making practicable statistical adjustments that would result in a more accurate tally than the traditional headcount. Section 195 197 Opinions o f the O ffice o f L egal C ounsel should be construed, if ‘“ fairly possible,’” to avoid those difficulties. See, e.g., A sh w an der v. TVA, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring) (citation omitted). Because a constitutionally unproblematic reading is justified (and has, in fact, been adopted by m ost courts), it should be adopted. A ccordingly, § 195 does not preclude reliance upon technically feasible statisti­ cal adjustm ents to improve the accuracy of “headcount” data, and specifically to correct the differential undercounting of minority group populations. It also does not prohibit the Bureau from conducting the non-response follow-up on a sample basis, rather than sending enumerators to every non-responding household, where the use o f the form er technique would improve accuracy while substantially low­ ering adm inistrative costs. Conclusion N either the Constitution nor the Census Act precludes the Bureau from making the proposed statistical adjustments o f “headcount” data in the decennial census for the year 2000. W ALTER DELLINGER A ssistan t A ttorney G eneral O ffice o f L egal Counsel 198

Write a legal research memo on the following topic.

The Twenty-Second Decennial Census N either the E num eration C lause o f the C onstitution nor the C ensus A ct precludes the Bureau o f the C ensus from statistically adjusting “headcounts” in the decennial census for the year 2000 or con­ d u cting the n o n-response follow -up on a sam ple basis. The provision in the C ensus A ct prohibiting sam pling fo r purposes o f apportionm ent o f the H ouse of R epresentatives does not preclude reliance upon statistical adjustm ents that w ould im prove the ac­ cu racy o f “head co u n t” data October 7, 1994 M e m o r a n d u m f o r t h e S o l ic it o r G e n e r a l You have asked, on behalf of the Department of Commerce, for our advice on the questions w hether the use of statistically adjusted census figures would be con­ sistent with the C onstitution, U.S. Const, art. I, § 2, cl. 3, and with the Census Act, 13 U.S.C. §§ 1-307. The questions arise because the traditional method o f taking the census fails to count a significant portion of the population, and in particular disproportionately undercounts identifiable racial and ethnic minorities. In light of these problem s, the Department o f Commerce is considering the use of statistical adjustm ents in the twenty-second decennial census (for the year 2000) before the final count is com pleted in order to improve the accuracy of that census. The De­ partm ent of Com m erce is also considering the use of sampling to conduct the fol­ low-up on households that did not respond to its initial mailing o f questionnaires. A ccordingly, it desires to know w hether such procedures would be lawful. We conclude that both o f the proposed changes in conducting the census would be lawful.* I. The C onstitution “provides the basis for the decennial censuses, but does not specify the details o f their administration.” Seventeenth D ecennial Census , 41 Op. A tt’y Gen. 31, 32 (1949). Instead, the Constitution vests in Congress the power to conduct an “actual Enumeration . . . in such M anner as they shall by Law direct.” U.S. Const, art. I, § 2, cl. 3. Congress’s pow er has in turn been vested in the Bu­ reau of the Census (the “Bureau”), a component o f the D epartment of Commerce. See 13 U.S.C. § 2. " E d ito r’s N ote: S u b se q u en t to the date o f this opinion, the Suprem e C ourt held that the C ensus A ct pro­ h ibits the p ro p o sed uses o f statistical sam p lin g in calcu latin g population for congressional apportionm ent p urposes. S e e D ep a rtm en t o f Com m erce v U nited S ta tes H o u se o f R epresentatives, 119 S C t 765, 779 (1999). T h e C o u rt did not reach the constitutional question. Id. 184 The Tw enty-Second D ecennial Census The primary purpose of the decennial census' is to provide the basis for Congress’s apportionment of seats in the House of Representatives am ong the States.2 The census also serves several other legally significant objectives. His­ torically, the decennial census has been “an enumeration not only of free persons in the States but of free persons in the Territories, and not only an enumeration of persons but the collection of statistics respecting age, sex, and production.” L egal Tender Cases, 79 U.S. (12 W all.) 457, 536 (1870). “The census today serves an important function in the allocation of federal grants to states based on population. In addition, the census also provides important data for Congress and ultimately for the private sector.” B aldrige v. Shapiro, 455 U.S. 345, 353 (1982); see gen erally Note, D em ography an d D istrust: Constitutional Issues o f the F ederal Census, 94 Harv. L. Rev. 841, 844-45 (1981). The traditional method for conducting the decennial census “is a headcount rather than an estimation based on sampling.” Tucker v. U nited States D e p ’t o f Com merce, 958 F.2d 1411, 1412 (7th Cir.), cert, den ied, 506 U.S. 953 (1992).3 The term “headcount” is somewhat misleading, however. “The census . . . is not a headcount in which each and every person residing in the United States on a given date is counted by the Census Bureau. Rather, it is a survey of the population that through the responses of one member of each household attempts to enumerate the entire population.” C arey v. Klutznick, 508 F. Supp. 420, 426 (S.D.N.Y. 1980), r e v ’d, 653 F.2d 732 (2d Cir. 1981), cert, denied, 455 U.S. 999 (1982). In the 1990 census, the Bureau’s tabulation had four phases. First, relying on lists compiled by commercial sources and its own fieldwork, the Bureau derived a mailing list of as many households as it could locate. Second was the “mail out/mail back” phase, in which the Bureau mailed out questionnaires to each household on its list, and requested their return by April 1, 1990. (The return rate was 63%.) The third phase was a follow-up in which the Bureau sent out another round of mailings. The fourth phase comprised efforts by census enumerators, in person, to contact non-responding households (or other reliable sources) to obtain the needed information. Following that, the Bureau undertook “coverage im­ provement programs” designed to reach non-respondents in other ways, including rechecks of all vacant or uninhabitable housing units, recanvassing of selected blocks, an advertising campaign, checks of parolees and probationers, and a local 1 T here is also a m id-decade census. See 13 U S.C . § 141(d) 2 T he apportionm ent o f R epresentatives am ong the Stales in turn affects the allocation o f Electoral C ol­ lege votes to the Stales. See U.S C onst art. II, § I, cl 2. 1 T he first statute authorizing a census, "A n A ct providing for the enum eration o f the Inhabitants o f the U nited S tates" (M ar I, 1790), declared that “the m arshals o f the several districts o f the U nited S tates” were “ authorized and required to cause the num ber o f the inhabitants w ithin th eir respective districts lo be taken,” om itting Indians not taxed. 4 N a tio n a l Stale P a p ers o f ihe U n ited States, 1789-1817, at I (Eileen Daney C arzo ed , 1985). It further placed on “each and every person m ore than sixteen years o f age” the obligation to provide the census-taker “a true account, if required, to the b est o f his or her know ledge, of all and every person belonging to [the resp o n d en t's] family ” Id at 3. 185 Opinions o f th e O ffice o f L eg a l Counsel governm ent review. See C ity o f N ew York v. U nited States D e p ’t o f Com m erce, 34 F.3d 1114 (2d Cir. 1994), r e v ’d, 517 U.S. 1 (1 9 9 6 )4 Like earlier censuses, the 1990 census concededly did not count the entire population of the United States.5 G iven the inherent difficulties of census-taking and the existence o f financial and tim e constraints, some degree o f inaccuracy in the census count is perhaps inevitable. The Bureau itself believes that “every cen­ sus has necessarily involved an undercount,” Young v. Klutznick, 497 F. Supp. 1318, 1327 (E.D. M ich. 1980), r e v ’d, 652 F.2d 617 (6th Cir. 1981), cert, denied, 455 U.S. 939 (1982), and the courts agree that “a perfectly accurate count of up­ wards of 250 m illion people” is sim ply not “feasible.” C ity o f D etroit v. Franklin, 4 F.3d at 1377.6 Far more troubling than the bare existence of an undercount is the fact that the 1990 census perpetuated a pattern, the existence of which has been recognized since 1940, o f differentially undercounting African Americans.7 The 1990 census also differentially undercounted Hispanics: the estimated undercount for that group was 5.2% , as against an estim ated undercount of 2.1% for the popu­ lation at large.8 The Bureau “specifically acknow ledge^] an undercount in the 1990 census ranging from 1.7 percent of whites to 5.2 percent of Hispanics.”9 Despite that acknowledgement, the Secretary of Commerce declined in 1991 to adjust the 1990 census figures to correct for the undercounts.10 The Secretary’s 4 T h e B u re a u ’s effo rts to o b tain as accurate a count as po ssib le have been found to be ‘‘extraordinary A ccording to one co u rt, the 1990 census is sa id to be one o f th e best ever taken in this country because d e ­ spite o u r larg e po p u latio n , approxim ately 9 8 percent o f the population w as counted.” C itx o f D etroit v. F ranklin, 4 F 3d 1367, 1376 (6 th C ir. 1993), c e r t denied, 5 1 0 U .S 1176(1994). 5 T h e first c en su s in 1790 co u n ted over 3 ,8 9 0 ,0 0 0 people, but fell short o f the expected 4,000,000 figure G eorge W ash in g to n th o u g h t it “certain’’ that “ o u r rea l num bers will exceed, greatly, the official returns of them ,’* and T h o m as Jefferso n considered the uncounted p o p u latio n “very g reat.” See B a ld n g e v Shapiro, 455 U .S at 353 n 8. 6 S e e a lso K a rc h e r v D a g g ett, 462 U S 7 2 5 , 732 (1983) ( “ the census data are not perfect, and the wellknow n restlessn ess o f the A m erican people m e a n s that p o p u latio n counts fo r particular localities are outdated long b efo re they are c o m p leted "); id at 7 7 2 (W hite, J , d issen tin g) (“the census . . cannot be perfect”), G affney v C u m m in g s, 412 U .S. 735, 745 (1 9 7 3 ) (decennial census figures “ may be as accurate as such im m ense u n d ertak in g s can be, but they are in h e re n tly less th an absolutely accurate ”). 7 In the 1990 cen su s, “ B lacks w ere und erco u n ted by 4 8 % , H ispanics by 5 2% , A sian-Pacific Islanders by 3.1% , A m erican Indians by 5.0% , and n on-B lacks by 1.7% ” S en ate o f C alifornia v M osbacher, 968 F 2 d 974, 975 (9 th C ir 1992) “In 1940, 10 3 p e rc en t o f blacks w ere missed, com pared to 5 1 percent o f w hites, a gap o f 5.2 p ercen tag e points. In 1980, 6 2 p e rc en t o f blacks w ere missed, com pared to I 3 percent o f whites, for a sim ila r disparity o f 4 9 percentage p o in ts.” Sam uel Issach aro ff & A llan J Lichtm an, The C ensus Un­ de rc o u n t a n d M in o rity R epresentation T h e C o n stitu tio n a l O bligation o f the States to G uarantee E qual R ep resen ta tio n , 13 R ev. L ing. 1, 8 (1993) S e e also G ajfnev v. C um m ings, 412 U S at 745 n.10 8 S e e S tephen E Fienberg, The New York C ity C ensus A d ju stm ent T n a l: W itness f o r the P laintiffs, 34 J u n m e tric s J. 65, 70-71 (1993) 9 Tucker, 958 F.2d at 1413; s e e generally D e cisio n o f th e S ecretary o f C om m erce on W hether a S ta tisti­ c a l A d ju stm e n t o f the 1990 C en su s o f P o p u la tio n a n d H o u sin g Should B e M ade f o r C overage D eficiencies R esu ltin g in an O verco u n t o r U ndercount o f th e P opulation, 5 6 Fed Reg. 33,582 (1991) 10 T h e S e c re ta ry ’s reaso n in g , as recapitulated by the S ev en th Circuit, w as that w h ile a d ju stm en t by the b e st method av ailab le w ould increase the c ensus totals, it w ould not sig ­ n ifican tly alter the apportionm ent o f s e a ts in the H ouse o f R epresentatives am ong the slates, in part becau se there is overcounting as w ell as und erco u n tin g A fter the dust settled, Illin o is’s re p ­ resen tatio n w ould be unchanged, a lth o u g h C alifo rn ia an d A rizona w ould pick up a few seats at the ex p en se o f P ennsylvania and W isco n sin Federal grant allocations m ight not be m uch af- 186 The Tw enty-Second D ecennial Census decision not to make the adjustment has been the subject of litigation in three cir­ cuits, with conflicting results. Com pare Tucker (plaintiffs had no judicially en­ forceable rights) and City o f D etroit (same) with City o f N ew York (remanding with instruction that refusal to adjust could not be upheld unless shown to be necessary to a legitimate governmental interest). The Bureau is currently considering whether to adjust the “raw count” o f the next decennial census for the year 2000. Sampling was used in connection with the 1990 census to carry out the “Post-Enumeration Survey” (the “PES”) that m eas­ ured the undercount for that year. See C ity o f N ew York, 34 F.3d at 1117; David A. Freedman, A djusting the Census o f 1990, 34 Jurimetrics J. 99, 102-03 (1993). In that census, the Bureau tested the accuracy of the count by a PES o f some 174,000 households and then matching the questionnaires for households in the PES against the same households in the census (including both mail-backs and non-response follow-ups). The matching process provided the Bureau with data to develop adjusting factors, or “multipliers,” to capture the estimated under- or over­ count for some 1,392 demographic subgroups. The application of the multipliers to the enumeration data for the subgroups produced the conclusion that 1.6% of the total population had not been counted in the census. For the 2000 census, the Bu­ reau is considering the use of a sample-based adjustment as in 1990, except that it would complete the adjustment before its deadline for reporting State totals to the President. The Bureau is also considering whether to conduct the non-response follow-up on a sample basis, rather than sending enumerators to each non-responding house­ hold. Specifically, it is proposing to contact, by telephone or in person, between 25% and 50% of the households that failed to return the census questionnaire. The Bureau would then extrapolate from the results of this sample to estimate the whole non-respondent population. The Bureau believes that the use of this procedure would save it between $300 and $600 million. At the same time, it advises us that the procedure would also produce greater accuracy than was achieved in the 1990 census. In the past, the Bureau took the position that it would be legally precluded from adjusting the census for apportionment purposes. See Census U ndercount A d ju st­ ment: B asis f o r D ecision, 45 Fed. Reg. 69,366, 69,371-73 (1980). This claim was based on both constitutional and statutory grounds. First, the Bureau has argued that fected eith er M oreover, any attem pt to m ake a statistical adjustm ent to the m echanical headcount w ould, by injecting judgm ental factors — and ones o f considerable technical c o m ­ plexity to boot, — open the census process to charges o f political m anipulation A nd w hile a statistical adjustm ent for the undercount w ould undoubtedly im prove the accuracy o f the n a tio n ­ wide c en su s total, there is no consensus am ong statisticians and dem ographers that it w ould m ake the state and district census totals — the level at w hich the adjustm ent w ould actually af­ fect representation and funding — m ore accurate Tucker, 958 F .2d at 1413 (citations o m itted); see also C ttv o f N ew York., 34 F 3d at 1122-23; S e n a te o f C ali­ fo rn ia , 968 F 2d at 975 187 Opinions o f the O ffice o f L eg a l C ounsel interpretation o f the phrase “actual enum eration” in Article 1, Sec­ tion 2, Clause 3 must begin with the words themselves, and that the term s “census” and “enumeration” mean nothing more or less than a headcount. [It] say[s] that the use of the m odifier “actual” with the word “enum eration” can only reinforce the conclusion that the fram ers o f the Constitution intended a headcount, and nothing but a headcount. [It] further reifies] upon the fact that, with the exception o f the 1970 census when imputations were performed which added approxim ately 4.9 million people, the census has been, since 1790, an actual headcount and nothing more. Young v. K lutznick, 4 91 F. Supp. at 1332. The Bureau has also argued in the past that “even if the Constitution does not prohibit an adjustment for apportionment of Representatives, C ongress has by statute prohibited such an adjustment.” Id. at 1334. W e consider these issues in turn. II. The Enum eration Clause of the Constitution reads in relevant part as follows: R epresentatives . . . shall be apportioned among the several States . . . according to their respective N um bers . . . . The actual Enu­ meration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term o f ten Years, in such M anner as they shall by Law direct. U.S. Const, art. I, § 2, cl. 3; see a lso U.S. Const, amend. XIV, § 2 (“R epresentatives shall be apportioned among the several States according to their respective numbers, counting the w hole num ber o f persons in each State . . . . ”). The Enum eration Clause was one facet of the “Great Com prom ise” at the Con­ stitutional Convention, which provided for equal representation of the States in a Senate, and representation of “the People of the several States” in a House of Rep­ resentatives. U.S. Const, art. I, § 2, cl. 1; see gen era lly W esberry v. Sanders, 376 U.S. 1, 10-16 (1964); D em ography an d D istrust, 94 Harv. L. Rev. at 846. Be­ cause the Fram ers “intended that in allocating Congressmen the number assigned to each State should be determined solely by the number of the State’s inhabitants . . ..[t]he C onstitution embodied Edm und R andolph’s proposal for a periodic cen­ sus to ensure ‘fair representation o f the people’” W esberry, 376 U.S. at 13-14 (citations omitted). Before the first decennial census in 1790, no modern Nation had undertaken a census (although all the States of the United States, with some exceptions in the South, had done so). See Hyman Alterman, Counting P eople: The Census in 188 The T w enty-Second D ecennial Census H istory 164 (1969). Thus, when the Framers were apportioning seats in the first House of Representatives, their decisions were the outcome of “conjecture and political compromise: [they] apparently assigned some of the smaller States a number of Representatives not justified by the size of their populations.” M em o­ randum for Wendell L. W ilkie II, General Counsel, Department o f Commerce, from Stuart M. Gerson, Assistant Attorney General, Civil Division at 4 (July 9, 1991) (the “Gerson M em orandum ”).11 The C onstitution’s reference to an “actual Enumeration” must be explained by reference to the Fram ers’ ignorance of the exact size of the population and its distribution among the States: “[w]hen the Constitution speaks of actual enumeration, it speaks o f that as opposed to esti­ m ates.’’ Young v. Klutznick, 497 F. Supp. at 1332 (emphasis added). A cco rd Memorandum for Alice Daniel, Assistant Attorney General, Civil Division, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: P ending Litigation Concerning S tatistical A djustm ent o f 1980 D ecennial Census P opulation D ata at 2 (Sept. 25, 1980) (the “Harmon M em orandum ”) (“the phrase [‘actual Enum eration’] was chosen because an accurate population count was es­ sential once the Convention decided, in the Great Compromise, that representation in the House would be apportioned on the basis of population.”). The proposal for a periodic enumeration of the population originated, as noted above, with Edmund Randolph, as an incident to the Great Compromise. On July 10, Randolph moved a proposal calling for Congress “to cause a census, and esti­ mate to be taken within one year after its first meeting; and every [left blank] years thereafter — and that the L egislature] arrange the Representation accordingly.” James Madison, N otes o f D ebates in the F ederal Convention o f 1 7 8 7 , at 265 (Adrienne Koch ed., 1966) (bracketed material added). George M ason spoke in favor of the motion on the next day, declaring that “[h]e did not object to the con­ jectural ratio which was to prevail in the outset; but considered a Revision from time to time according to some permanent & precise standard as essential to [the] fair representation required in the [first] branch.” Id. at 266. Later in the debate, Randolph repeated M ason’s point that “the ratio fix[ed] for the [first] meeting [of Congress] was a mere conjecture.” Id. at 267. On August 21, Madison repeated that “[t]he last apportionment o f Cong[ress], on which the number o f Representa­ tives was founded, was conjectural and meant only as a temporary rule till a Cen­ sus should be established.” Id. at 497. Madison also explained in The F ederalist that the provision in Article I, Section 2, Clause 3 of the Constitution for a House o f Representatives that would consist of sixty-five members in the First Congress was merely “a temporary regulation,” to be revised when the findings o f the census S ee also H ym an A lterm an, C ounting P eople at 187-88 ("T he C onvention had available to it estim ates 11 o f the w hite and slave populations in the v arious stales M ainly on the basis o f these estim ates the C o n v en ­ tion decided how m any representatives each state should have until the first census w as ta k e n .”). 189 Opinions o f the O ffice o f L eg a l C ounsel of 1790 becam e known. The F ederalist No. 55, at 343 (James M adison) (Clinton R ossiter ed., 1961).12 These discussions make it clear that, in requiring an “ actual ” enumeration, the Framers m eant a set o f figures that was not a m atter of conjecture and compromise, such as the figures they had themselves provisionally assumed. An “actual” enu­ meration would instead be based, as George M ason put it, on “some permanent & precise standard.” There is no indication that the Framers insisted that Congress adopt a “headcount” as the sole m ethod for carrying out the enumeration, even if later refinem ents in the metric of populations would produce more accurate meas­ ures. Furtherm ore, the Fram ers left it to Congress to conduct the enumeration “in such M anner as they shall by Law direct.” U.S. Const, art. I, § 2, cl. 3. That ex­ plicit delegation im plies that the Fram ers were w illing to allow for innovation in the choice o f m easuring techniques; and, not surprisingly, “the Census Bureau’s unbroken historical practice really has been to use modern knowledge and scien­ tific techniques to get further and further away from simple headcounting.” Young v. K lutznick, 497 F. Supp. at 1333.13 “The result, and not the method, is the im­ portant lesson of the historical experience.” Harm on Memorandum at 2. In addition, Article I, Section 2, Clause 3 o f the Constitution was amended by section 2 o f the Fourteenth Amendment. Section 2 declares that “Representatives shall be apportioned am ong the several States according to their respective num­ bers, counting the whole number o f persons in each State, excluding Indians not taxed.” U.S. Const, amend. XIV, § 2. Further, section 5 confers on Congress the “power to enforce, by appropriate legislation, the provisions of this article.” Id. § 5. C ongress’s powers under section 5 have been “equated . . . with the broad powers expressed in the Necessary and Proper Clause, U.S. Const, art. I, § 8, cl. 18. ‘Correctly viewed, § 5 is a positive grant o f legislative power authorizing Congress to exercise its discretion in determ ining whether and what legislation is needed to secure the guarantees o f the Fourteenth Am endm ent.’” Fullilove v. K lutznick, 448 U.S. 448, 476 (1980) (plurality opinion) (quoting K atzenbach v. M organ , 384 U.S. 641, 651 (1966)). It follows that Congress has broad power to determ ine how to carry out the apportionm ent called for by section 2, and to con­ duct the enum eration on which that apportionm ent is based. See M assachusetts v. M osbach er, 785 F. Supp. 230, 253 (D. M ass.) (three-judge court) (“the exercise of Section 5 pow ers here in defining the m ethodology for reapportionment falls 12 U S C o n st art. I, § 2, cl 3 provided th a t “ until such e n u m eration shall be m ade,’' the Slates were to have p red eterm in ed n um bers o f R epresentatives: three fo r N ew H am pshire, eight for M assachusetts, one for R hode Island, five for C onnecticut, six for N ew York, four for N ew Jersey, eight for Pennsylvania, one for D elaw are, six fo r M aryland, ten for Virginia, five for N orth C aro lina, five for South C arolina and three for G eorgia, for a total o f sixty-five n "In stead o f head co u n tin g people, [the B u reau ] uses the m ail-out form and the m ail-out/m ail-back for­ mat to en u m e ra te m ost persons today ” Id S e e also C ity o f D etro it, 4 F 3d at 1377 ( ‘k[t]he C ensus Bureau has not u n d ertak en a d o o r-to -d o o r cam paign sin ce the 1960 census and plaintiffs have presented no evidence indicating th at such an effort w ould lead to any more accurate re su lts” ) 190 The Tw enty-Second D ecennial Census squarely within the settled recognition of the competence of Congress as a legisla­ tive fact finder”), r e v ’d sub nom. Franklin v. M assachusetts, 505 U.S. 788 (1992). It would be strange indeed to suppose that Congress — or its delegate, the Bureau — lacked the power to authorize a statistical adjustment that would correct the persistent and acknowledged undercounting of African Americans in that enu­ meration, particularly in view of the fact that the Fourteenth Amendment was pri­ marily intended for the protection of that class. See S trauder v. W est Virginia, 100 U.S. 303, 306(1880). Finally, constitutional plaintiffs injured by the decision to use adjusted census data for apportionment might argue that so sharp a departure from the B ureau’s longstanding practices was unjustified.14 See Senate o f California, 968 F.2d at 978 (“the method by which the Secretary is to do the count . . . is generally expected to be a head count”); see a lso Seventeenth D ecennial Census, 41 Op. A tt’y Gen. at 34 (if the Director “has consistently followed the practice in question over a long pe­ riod of time, and it has not been challenged in the Congress or elsewhere . . . his interpretation ought not to be disturbed except for very weighty reasons”) .15 It could be contended that the use of unadjusted “headcounts” almost invariably since the first census of 1790 represents a practical construction of the Enumeration Clause which the Executive, at least absent weighty reasons, may not reverse. See, e.g., Smiley v. Holm, 285 U.S. 355, 369 (1932) (“long and continuous interpreta­ tion in the course of official action under the law may aid in removing doubts as to its meaning. This is especially true in the case o f constitutional provisions gov­ erning the exercise of political rights . . . .”); The P ocket Veto Case, 279 U .S. 655, 688-90 (1929). W e believe, however, that the change in the Bureau’s policy would be upheld against an attack of this nature if there were adequate proof that statisti­ cal adjustments would be feasible and would generate more accurate counts o f both the total population and of minorities. Thus, in Franklin v. M assachusetts, the Court upheld the Bureau’s changed policy of allocating overseas government personnel to the several states for resi­ dence purposes for the 1990 census. The Court stated that 14 The Couri has held thal ' ‘[c]onslitulional challenges lo apportionm ent are justiciable " F ranklin v M a n a c h u selts, 505 U S at 801 W hether constitutional plaintiffs ‘‘have standing lo challenge the accuracy o f the data " tabulated by the B ureau, and 'w h eth er the injury is redressable by the relief sought," id at 802, are o f course separate issues. W e shall assum e here thal those conditions m ight be met. The availability of review under the A dm inistrative Procedure Act (the “A P A ") o f the use o f adjusted data for reapportionm ent seem s doubtful after Franklin, how ever T he APA perm its review only o f certain "final" agency actions under 5 U.S C § 704 In this case, as in Franklin, it w ould appear that "the final action com plained o f is that of the President, and the President is not an agency w ithin the m eaning o f the Act " 505 U S at 7 9 6 W e note that F ra n klin 's ruling on the APA represented the view o f a bare m ajority o f five Justices (including Justice W hite), and m ight not be extended by the present C ourt 15 For analogous reasons, if A PA review w ere available, a change in policy lo allow statistical adjustm ents m ight be attacked as arbitrary, capricious o r abusive o f discretion under 5 U S C § 706(2)(A ) S e e M in o r Vehicle MJrs A s s ’n v. Stale Farm M m . A u to Ins Co , 463 U S 29, 42-45 (1983) (presum ption in favor of settled agency practice) W e believe thal the proposed policy change w ould survive review under that stan ­ dard 191 Opinions o f the O ffice o f L egal Counsel the Secretary of Commerce made a judgm ent, consonant with, though not dictated by, the text and history of the Constitution, that m any federal employees tem porarily stationed overseas had retained their ties to the States and could and should be counted toward their S tates’ representation in C ongress . . . . The Secretary’s judgm ent does not ham per the underlying constitutional goal of equal repre­ sentation, but, assuming that employees temporarily stationed abroad have indeed retained their ties to their home States, actually prom otes equality. 505 U.S. at 806. In the present case, the validity o f the policy change would turn largely on the evidentiary showing that the use o f statistical adjustments will produce a more ac­ curate count of the population than the bare “headcount” data alone. It appears to us that the factual predicate for the change to adjusted figures is adequate. As the Second Circuit pointed out, the district court in C ity o f N ew York found “that the PES-indicated statistical adjustment was feasible; that for most purposes and for m ost of the population that adjustment would result in a more accurate count than the original census; and that the adjustm ent would lessen the disproportionate un­ dercounting of m inorities.” City o f N ew York , 34 F.3d at 1129. Assuming that sim ilar findings would hold true for the next decennial census, then we see no rea­ son why the Bureau, in the exercise o f its expertise and discretion, may not alter its past practice and adjust the census figures it obtains through a “headcount.” 16 A ccordingly, we conclude that the Constitution does not preclude the Bureau from em ploying technically and administratively feasible adjustment techniques to correct undercounting in the next decennial census. III. The Census A ct includes two provisions authorizing the use of statistical meth­ ods, including “sam pling,” in conducting its statutory responsibilities. The first statute, 13 U.S.C. § 141(a), states that [t]he Secretary shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as o f the first day of April of such year, which date shall be known as the “decennial census date”, in such form and content as he may determine, including the use of sam pling procedures and special surveys. 16 M o reo v er, in lig h t o f the B ureau's p osition thal the use o f a sam ple-based follow -up for enum erating n on-resp o n d en t h o u seh o ld s w ould improve th e accuracy o f the final count w hile at the sam e tim e saving the B ureau u p w ard s o f $ 3 0 0 m illion, w e can see n o constitutional o bjection to the introduction o f that procedure. 192 The Tw enty-Second D ecennial Census The second statute, 13 U.S.C. § 195, authorizes, indeed mandates, the use of sampling, but with a limitation relating to apportionment [e]xcept for the determination of population for purposes o f appor­ tionment of Representatives in Congress among the several States, the Secretary shall, if he considers it feasible, authorize the use of the statistical method known as “sam pling” in carrying out the pro­ visions of this title. In the past, the Bureau has taken the position that § 195 prohibits statistical ad­ justm ent of census data for purposes of apportionment. The difficulty centered on § 195’s prohibition on the use of “sampling” in determining the size o f the popula­ tion for purposes of apportionment. Since the scope of § 195’s exception is not plain from the language of the statute, we turn to the legislative history of that sec­ tion. Congress enacted § 195 in 1957, but in a form that authorized, rather than re­ quired, the use of sampling; a 1976 amendment transformed the Secretary’s authorization into the conditional mandate of the current statute.17 The enacting Congress of 1957 considered § 195 to be merely a change “of an administrative nature” that was “needed for the timely and efficient performance of the biggest jobs the Bureau of the Census has ever undertaken.” S. Rep. No. 85-698, at 2 (1957), reprinted in 1957 U.S.C.C.A.N. 1706, 1707. The proviso gave the Bureau the “authority to use sampling in connection with censuses except for the determ i­ nation of the population for apportionment purposes.” Id. at 3, rep rin ted in 1957 U.S.C.C.A.N. at 1708. W hat Congress originally meant by “sam pling” is not clear. In testimony in support of the 1957 legislation, Robert W. Burgess, the Director o f the Bureau of the Census, explained that [t]he use of sampling procedures would be authorized by the pro­ posed new section 195. It has generally been held that the term “census” implies a complete enumeration. Experience has shown that some of the information which is desired in connection with a census could be secured efficiently through a sample survey which is conducted concurrently with the complete enumeration o f other items; that in some instances a portion of the universe to be in­ cluded might be efficiently covered on a sample rather than a com ­ plete enumeration basis and that under some circumstances a sample enumeration or a sample census might be substituted for a 17 As enacted in 1957, the statute had stated that "[e]xcept for the determ ination o f population for apportionm ent purposes, the Secretary m ay, w here he deem s it appropriate, authorize the use o f the statistical m ethod known as 'sam p lin g ' in carry in g out the provisions o f this title “ Pub L N o 85-207, § 14, 71 Stat 4 8 1 ,4 8 4 (1957) 193 Opinions o f th e Office o f L egal Counsel full census to the advantage of the Government. This section, in com bination with section 193, would give recognition to these facts and provide the necessary authority to the Secretary to permit the use o f sam pling when he believes that it would be advantageous to do so. A m endm ent o f Title 13, U nited States Code, Relating to Census: H earings on H.R. 7911 B efore the H ouse Com mittee on P ost O ffice an d C ivil S ervice , 85th Cong. 7- 8 (1 9 5 7 ). The D irector’s testim ony suggests that in enacting § 195, Congress intended that the Bureau conduct a “complete enum eration” or a “full census” when deter­ mining the size of the population for apportionment purposes, but that the Bureau could use “sam pling” in other contexts, where a “sample enumeration” or a “sample census” might be used “to the advantage o f the G overnm ent.” Read in the light o f the testimony, the statute’s preclusion o f “sam pling” need not have meant that statistical adjustm ent o f census figures was forbidden: Congress may well have intended only that the decennial census not be a “sample census.” Moreover, a “com plete enum eration” or “full census” may affirmatively require statistical adjustm ents o f “headcount” data to be made. O ur Office has previously argued that the 1957 legislative history should not be understood to preclude statistical adjustm ent. Citing the testimony quoted above, we argued that “ [sjam pling refers to a representative portion of the whole . . . while adjustm ent refers to additions to the whole, here the headcount. As we read the Census Act, there is no statutory prohibition o f statistical adjustm ent.” Harmon M em orandum at 3 (citation omitted). The Congressional Research Service (the “CRS”), however, reviewed the same testimony and drew a contrary inference: it appears that when Section 195 was originally enacted, the De­ partm ent of C om m erce took the position that an actual enumeration was required for all decennial census purposes. Section 195 was enacted in order to relieve this restriction for purposes other than apportionm ent by sanctioning the use o f sampling when appropri­ ate. There was no need to m ention other forms o f estimating popu­ lation since this section was making an exception to the general requirem ent o f an actual enumeration only for sampling. Therefore, one may conclude that Section 195 was not intended to sanction the use o f m ethods o f estimating population other than “sampling,” and did not intend to permit the use of this method for purposes of ap­ portionment. Congressional Research Service, Library of Congress, L egal C onsiderations in C ensus Bureau Use o f Statistical P rojection Techniques to Include Uncounted 194 The T w enty-Second D ecennial Census Individuals For P urposes o f C ongressional R eapportionm ent (M ar. 27, 1980), (report prepared for Congressional use), reprin ted in P roblem s with the 1980 C en ­ sus Count: Joint H earing Before the Subcomm. on Com merce, Consumer, a n d M onetary Affairs o f the House Comm, on G overnm ent O perations, an d the Sub­ comm. on Census an d P opulation o f the House Comm, on P ost Office a n d C ivil Service, 96th Cong. 190 (1980) (the “Joint Hearing”). The 1976 legislation amending the Census Act, Act of Oct. 17, 1976, Pub. L. No. 94-521, 90 Stat. 2459, 2464, was primarily concerned with the establishment of mid-decade censuses. In carrying forward (and amending) § 195, we believe that Congress meant that while reliance on sampling alone might be appropriate or desirable for mid-decade censuses, it should not be the exclusive procedure for tabulating the population in decennial censuses.18 So understood, the 1976 re­ enactment does not bar the statistical adjustment of the decennial census if such adjustments would improve their accuracy. This interpretation of the 1976 legislative history is not uncontroverted. See Gerson M emorandum at 11 (“C ongress’ amendment of Section 195 in 1976 is similarly open to two alternative interpretations.”). The CRS, noting that both the Com ptroller General and the Bureau had advised Congress in 1976 o f ongoing developments in estimating or allocating populations other than sampling, argued that “it would be logically inconsistent for Congress to prohibit sampling for pur­ poses o f reapportionment, but at the sam e time to permit the use of other tech­ niques whose reliability had not yet been determ ined.” Joint Hearing at 188. Based on its review of the legislative history, CRS concluded that “the use o f demographic estimates for purposes of apportionment of Representatives among the States . . . is prohibited by Section 195 of Title 13.” Id. at 192.19 In our judgm ent, the better view is that the Census Act does not preclude the Bureau from engaging in statistical adjustments o f the next set of decennial census figures. See Franklin v. M assachusetts, 505 U.S. at 820 (Stevens, J., joined by 18 The S enate Report stated that the section o f the 1976 legislation that m odified 13 U S.C. § 195 '“differs from present language w hich grants the Secretary discretion lo use sam pling w hen it is considered a p p ro p ri­ ate The sectio n as am ended strengthens congressional intent that, w henever possible, sam pling shall be used ’’ S R ep No 94-1256, at 6 (1976), reprinted m 1976 U S .C .C A.N. 5463, 5468 19 One fu rth er aspect o f the 1976 legislative history should be noted In the 1970 decennial census, the Bureau used “sam pling" to add to the national total the figure o f alm ost five m illion people believed m issing from the h ead co u n t The B ureau estim ated that it had not co n tacted som e 10 2 m illion people, or about 5% o f the po pulation O f this 10.2 m illion not actually counted, 4 9 m illion w ere included in the official count by “ im putation ” and allocated am ong the States for apportionm ent o f H ouse seats. Young v K lu tzn ick , 497 F. Supp at 1321, see also G erson M em orandum at 15 ( ‘‘In effect, a portion o f the population w as not ta b u ­ lated directly in 1970 Instead, the Bureau obtained an estim ate o f its size from the results o f statistical sam pling and added that estim ate to the total population count "). The d istrict court in Young inferred that w hen C o n g ress am ended § 195 in 1976, it was “well aw are" o f the B ureau's adjustm ent o f the 1970 census data and im pliedly consented to that practice 497 F Supp at 1334-35 The court cited no direct evidence, how ever, thal C ongress was aw are of, and approved, the 1970 census adjustm ent See G erson M em orandum at 15 M oreover, as the Bureau argued, see Young, 4 9 7 F Supp at 1334, the re-enactm ent o f t} 195 (w ith essentially m inor changes from 1957) could be interpreted as a ratification o f the B u re au 's m ore traditional practice o f using only a headcount 195 O pinions o f the Office o f L eg a l C ounsel Blackm un, Kennedy and Souter, JJ., concurring in part and concurring in judg­ ment) (Census A ct “em bodies a duty to conduct a census that is accurate and that fairly accounts for the crucial representational rights that depend on the census and the apportionm ent”). A non-preclusive reading gives due weight to the fact that, when it re-enacted § 195 in 1976, C ongress was primarily concerned with institut­ ing m id -d eca d e censuses. Its prohibition on “sam pling” in decennial censuses ap­ pears to have m eant only that while a procedure relying on “sampling” alone might be the m ost cost-effective means to discover the information sought in a mid­ decade census, the Bureau should not rely on “sam pling” as its exclusive method of tabulating population figures in the decennial census. The use o f sampling tech­ niques in the m id-decade census is “probably a pragmatic necessity in that in­ stance, given the vast mobilization of people and resources needed to conduct an even som ew hat accurate head count.” Senate o f California, 968 F.2d at 978. De­ spite the additional costs entailed, however, Congress did not wish the decennial census to consist o f “a mere statistical m anipulation through the use of sampling and other techniques.” Id. Nothing in amended § 195 p ro sc rib e d the use o f sam­ pling or other statistical devices in connection with the decennial “headcount,” however, if such adjustm ents would result in a more accurate tabulation. Furtherm ore, in adopting the Census Act, Congress “left the actual administra­ tion o f a great num ber o f necessary details to the judgm ent and discretion of the D irector o f the Census.” Seventeenth D ecennial Census, 41 Op. A tt’y Gen. at 33. Standing alone, § 141(a), which authorizes the D irector to take the decennial cen­ sus “in such form and content as he may determine, including the use of sampling procedures and special surveys,” w ould seem to permit statistical adjustments, if in the D irector’s judgm ent they would produce greater accuracy. W hile § 195 un­ doubtedly m akes an exception for the use of sampling in apportionment, that ex­ ception can be construed narrowly, as befits C ongress’s otherwise broad delegation of pow er to the Bureau: the section could be taken to mean that while census fig­ ures used for apportionm ent may not be based on sampling alone, it is permissible to use population sam ples as one elem ent in a more complex operation by which a prior “headcount” is corrected. Such a reading has in fact generally been adopted by the courts. See C arey v. Klutznick, 508 F. Supp. at 415; Young v. Klutznick, 497 F. Supp. at 1334-35; see also Gerson M em orandum at 18 (“the weight o f ex­ isting caselaw ” is “that Section 195 does not preclude statistical adjustment”).20 M oreover, if § 195 were read as preclusive, its constitutionality would be highly suspect. Because (as shown above) a non-preclusive reading is a reasonable one, it should be preferred. Substantial constitutional issues would arise under both the Enumeration Clause and the Fifth A m endm ent if § 195 were construed to prevent the Bureau from ad­ 20 B u t see Jeffrey S C ram ptor, Comment, Lies, D am n L ies a n d Sta tistic.1 D ispelling Som e M yths S u r ­ rounding the U n ited S ta te s C en su s, 1990 D et. C L R ev 71 (criticizing case law ); G erson M em orandum at 18 C‘[w ]e can foresee a c o u rt deciding that S e c tio n 195, on its face, prohibits statistical adjustm ent"). 196 The Tw enty-Second D ecennial Census justing census data for apportionment. The Enumeration Clause prescribes that Representatives be apportioned to the several States “according to their respective Numbers,” and it can be argued that the Clause is violated if Representatives are apportioned on the basis of a census count that is known to be deficient, but that could be rendered more accurate by feasible adjustments. See Franklin v. M a ssa ­ chusetts, 505 U.S. at 806 (Bureau’s decision to allocate government personnel sta­ tioned abroad to State designated as home of record “does not ham per the underlying constitutional goal o f equal representation, but . . . actually promotes equality”); United States D e p ’t o f Com m erce v. M ontana, 503 U.S. 442, 461 (1992) (Court “might well find” that requirement that Representatives be appor­ tioned by reference to the populations o f the several States “em bodied] the same principle of equality” as found in W esberry), C arey v. Klutznick, 508 F. Supp. at 414 (language of Enumeration Clause evinces “an intent that apportionment be based on a census that most accurately reflects the true population of each state”); cf. W esberry, 376 U.S. at 13-14. Furthermore, “[t]he Fifth Amendment . . . might be thought, by analogy to the decisions invalidating the malapportionment of state legislatures under the equal protection clause, to require the federal government to apportion congressional seats . . . in accordance with an accurate estimate of the number of people in each state.” Tucker, 958 F.2d at 1414. See, e.g., R eynolds v. Sims, 377 U.S. 533, 555 (1964) (“the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exer­ cise of the franchise”). Thus, the Second Circuit has found that the B ureau’s deci­ sion not to adjust the 1990 census figures was constitutionally suspect under the Fifth Amendment: [B]oth the nature of the right and the nature o f the affected classes are factors that traditionally require that the governm ent’s action be given heightened scrutiny: the right to have one’s vote counted equally is fundamental and constitutionally protected, and the un­ adjusted census undercount disproportionately disadvantages cer­ tain identifiable minority groups. . . . That the goal o f precise equality cannot be achieved nationwide . . . does not relieve the fed­ eral government of the obligation to make a good-faith effort to achieve voting-power equality “as nearly as is practicable.” C ity o f N ew York, 34 F.3d at 1128, 1129 (citation omitted). We need not here consider whether the Second C ircuit’s view of the merits is correct; nor need we address the issue whether the question the court decided was litigable. Suffice it to say that there would be substantial constitutional difficulties under both the Enumeration Clause and the Fifth Amendment if § 195 were under­ stood to prohibit the Bureau from making practicable statistical adjustments that would result in a more accurate tally than the traditional headcount. Section 195 197 Opinions o f the O ffice o f L egal C ounsel should be construed, if ‘“ fairly possible,’” to avoid those difficulties. See, e.g., A sh w an der v. TVA, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring) (citation omitted). Because a constitutionally unproblematic reading is justified (and has, in fact, been adopted by m ost courts), it should be adopted. A ccordingly, § 195 does not preclude reliance upon technically feasible statisti­ cal adjustm ents to improve the accuracy of “headcount” data, and specifically to correct the differential undercounting of minority group populations. It also does not prohibit the Bureau from conducting the non-response follow-up on a sample basis, rather than sending enumerators to every non-responding household, where the use o f the form er technique would improve accuracy while substantially low­ ering adm inistrative costs. Conclusion N either the Constitution nor the Census Act precludes the Bureau from making the proposed statistical adjustments o f “headcount” data in the decennial census for the year 2000. W ALTER DELLINGER A ssistan t A ttorney G eneral O ffice o f L egal Counsel 198

Write a legal research memo on the following topic.

Mechanisms for Funding Intelligence Centers Agencies may use the Economy Act to pay for facilities and services provided by the Terrorist Threat Integration Center and the Terrorist Screening Center. It is within the reasonable discretion of fiscal officers to compute the “actual cost” to be charged for those facilities and services. March 19, 2004 MEMORANDUM OPINION FOR THE LEGAL ADVISER DEPARTMENT OF STATE You have asked for our opinion about the legality of certain mechanisms for funding two intelligence centers—the Terrorist Threat Integration Center (“TTIC”) and the Terrorist Screening Center (“TSC”). Letter for Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, from William H. Taft, IV, Legal Adviser, Department of State (Dec. 12, 2003) (“State Letter”). We believe that it would be lawful for the agencies taking part in these centers to make payments reflecting the services and other benefits that the centers provide to them. We further believe that the precise formulas for computing the payments from each agency are, as a legal matter, left to the reasonable discretion of fiscal officers. I. Both TTIC and TSC are designed to bring together employees from various agencies of the government and to combine and organize the intelligence gathered by those agencies, so that it can best be used against the threats posed by terrorists. TTIC is “an interagency joint venture that . . . integrate[s] and analyze[s] terrorist threat-related information, collected domestically or abroad, and disseminate[s] such information to appropriate recipients.” Director of Central Intelligence Directive 2/4, Terrorist Threat Integration Center at 1 (May 14, 2003) (“DCID 2/4”). It was created through the Director of Central Intelligence’s DCID 2/4, at “the direction of the President, as articulated in his State of the Union Address on 28 January 2003” and elsewhere. Id. TTIC is housed at the Central Intelligence Agency (“CIA”) and is overseen by the Director of Central Intelligence, as head of the intelligence community. Id. at 2; State Letter at 1. The members of TTIC include the CIA, Department of State, Department of Justice/Federal Bureau of Investigation (“FBI”), Department of Homeland Security, and various intelligence entities of the Department of Defense. DCID 2/4, at 2. The President provided for TSC in Homeland Security Presidential Directive 6, Integration and Use of Screening Information (Sept. 16, 2003) (“HSPD-6”). HSPD-6 ordered the Attorney General to create TSC “to consolidate the Government’s approach to terrorism screening and provide for the appropriate and lawful 62 Mechanisms for Funding Intelligence Centers use of Terrorist Information in screening processes.” Id. TSC is to maintain a database related to terrorism and to respond to inquiries from federal, state and local, and foreign governments and possibly from private entities. State Letter at 2. The agencies involved in operating this joint venture, which is housed at the FBI, include the Department of State, Department of Justice/FBI, and Department of Homeland Security. Id. As we understand the arrangements for funding in the current fiscal year, “all agencies that are assigning staff and relocating relevant operations to the two projects [would] pay a share of the costs based on the proportion of staff being assigned.” State Letter at 2. The funds for TTIC would go to the Director of Central Intelligence’s Community Management Staff; for TSC, the funds would go to the FBI. Id. You have asked whether these funding arrangements are lawful. In particular, you have asked whether the Economy Act, 31 U.S.C. § 1535 (2000), which allows agencies to purchase goods and services from other agencies, would authorize the arrangements or whether they would conflict with an appropriations rider forbidding the use of any appropriation for “interagency financing of boards (except Federal Executive Boards), commissions, councils, committees, or similar groups (whether or not they are interagency entities),” unless the interagency entities have “prior and specific statutory approval to receive financial support from more than one agency or instrumentality.” Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, § 610, 118 Stat. 3, 351. You have also asked whether, assuming the Economy Act may be used, the formulas for allocating the costs here would be lawful. State Letter at 2. The Justice Management Division submitted a memorandum arguing that the funding arrangements, including the allocation formulas, comply with the law. Memorandum for M. Edward Whelan III, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Stuart Frisch, General Counsel, Justice Management Division, Re: Interagency Funding of the Terrorist Threat Integration Center and the Terrorist Screening Center (Jan. 23, 2004) (“JMD Memorandum”). The Office of Management and Budget endorsed the JMD Memorandum. Letter for M. Edward Whelan III, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Jennifer G. Newstead, General Counsel, Office of Management and Budget (Feb. 20, 2004). II. At both TTIC and TSC, the host agency provides goods and services to the other participating agencies so that those agencies can carry out their own functions more effectively. Each center provides a location where employees of the agencies can exchange and organize information. The centers offer physical infrastructure, such as office space and computers. They also offer such services as access to databases that pool information supplied by the various agencies and other sources. JMD Memorandum at 3–4. Under the contemplated arrangements, 63 Opinions of the Office of Legal Counsel in Volume 28 participating agencies would pay for these goods and services under the Economy Act. The Economy Act provides that the head of one agency “may place an order with . . . another agency for goods or services” if (1) amounts are available; (2) the head of the ordering agency . . . decides the order is in the best interest of the United States Government; (3) the agency . . . to fill the order is able to provide or get by contract the ordered goods or services; and (4) the head of the agency decides ordered goods or services cannot be provided by contract as conveniently or cheaply by a commercial enterprise. 31 U.S.C. § 1535(a). The amount to be paid must be the “actual cost of goods or services provided.” Id. § 1535(b). Payment may be made in advance, with “proper adjustment” later to meet the “actual cost” requirement. Id. As long as the participating agencies pay the “actual cost of goods or services provided,” a subject we discuss below, these requirements of the Economy Act would be met. Because participating agencies use TTIC and TSC to carry out their own functions, the agencies’ appropriations may be spent on the goods and services that the centers provide, see 31 U.S.C. § 1301(a) (2000) (appropriations may “be applied only to the objects for which the appropriations were made”), and their funds are thus “available” under 31 U.S.C. § 1535(a)(1), as long as the amounts of those funds remain sufficient. The President has determined that the operations of TTIC and TSC are important for protecting the nation against terrorists, and the head of a participating agency thus could “decide[] the order [for goods and services] is in the best interest of the United States Government,” as required by 31 U.S.C. § 1535(a)(2). The CIA and FBI are able to provide these goods and services. Id. § 1535(a)(3). And the heads of participating agencies could reasonably determine, under 31 U.S.C. § 1535(a)(4), that no commercial enterprise could offer the same services as “conveniently” or perhaps even at all. As shown by the Comptroller General’s opinion in To the Secretary of Commerce, 38 Comp. Gen. 36 (1958),1 the Executive Branch has before put in place somewhat similar arrangements under the Economy Act. There, the Comptroller General concluded that the Weather Bureau could not allow a private company to 1 “The opinions and legal interpretations of the General Accounting Office and the Comptroller General often provide helpful guidance on appropriations matters and related issues” but “are not binding upon departments, agencies, or officers of the Executive Branch.” Applicability of Government Corporation Control Act to “Gain Sharing Benefit” Agreement, 24 Op. O.L.C. 212, 216 n.3 (2000) (citing Bowsher v. Synar, 478 U.S. 714, 727–32 (1986)). 64 Mechanisms for Funding Intelligence Centers connect with a natural gas line that the Weather Bureau maintained. In explaining one ground for this decision, the Comptroller General wrote “that the funds used for construction of the natural gas line and distribution system were advanced to the Weather Bureau by the several agencies to be benefited from the facilities under section 601 of the Economy Act of 1932.” 38 Comp. Gen. at 38 (citations omitted). Therefore, he reasoned, “such facilities must be regarded as property under the control of those agencies on a pro rata basis even though presently in the custody of the Weather Bureau under the involved arrangement,” and the Weather Bureau therefore could not “limit, restrict, reduce, abridge, or encumber in any manner the pro rata interests of the other agencies in the facilities.” Id. (citations omitted). Although the Comptroller General did not directly address the legality of the agency payments under the Economy Act, he appears to have assumed the legality of those arrangements by concluding that the various agencies had acquired interests that the Weather Bureau could not lawfully abridge. Similarly, the agencies taking part in TTIC and TSC would be paying for joint facilities they have the right to use, as well as for services of mutual benefit. The JMD Memorandum argues that they may even acquire the same sort of property interests as recognized in the Comptroller General’s decision. Id. at 11. In any event, the Economy Act would permit the arrangements. The Economy Act requires that an ordering agency pay only the “actual cost” of the ordered goods or services. 31 U.S.C. § 1535(b). Payment under the Economy Act must ensure that “the performing agency is reimbursed for its costs,” Letter for David P. Holmes, Acting General Counsel, Central Intelligence Agency, B-250,377, 1993 WL 35613, at *2 (Comp. Gen. Jan. 28), but “any retention of amounts in excess of actual costs . . . would result in an improper augmentation of the [performing agency’s] appropriations,” In re Bureau of Land Management— Disposition of Water Resources Council Appropriations Advanced Pursuant to the Economy Act, 72 Comp. Gen. 120, 122 (1993) (citation omitted). The assignment of costs requires an element of judgment. “While the Economy Act requires recovery of ‘actual costs,’ . . . the term has a flexible meaning and recognizes distinctions or differences in the nature of the performing agency, and the purposes or goals intended to be accomplished.” In re Washington National Airport; Federal Aviation Administration; Intra-Agency Reimbursements Under 31 U.S.C. 686 (1970), 57 Comp. Gen. 674, 685 (1978). The question of cost computation is “one primarily for administrative consideration, to be determined by agreement between the agencies concerned.” Reimbursement for Interagency Services, 22 Comp. Gen. 74, 78 (1942). You have raised questions about two particular aspects of the cost allocation formulas for TTIC and TSC: first, the allocation of costs according to the number of employees that each agency situates at TTIC or TSC; and, second, the inclusion in the assigned costs during a single year of capital expenditures for facilities to be used over a number of years. State Letter at 3–6. The JMD Memorandum suggests a rationale for each of these elements in the cost formula. As to the assignment of 65 Opinions of the Office of Legal Counsel in Volume 28 costs per capita, the JMD Memorandum argues that “[w]ith respect to operations such as TTIC and TSC, where unit pricing of outputs is not realistic, per capita and similar approaches are widely used and embraced by accountants and auditors alike.” Id. at 9. The JMD Memorandum also contends that the number of employees assigned to each center is a reasonably accurate basis for estimating the costs of providing facilities and equipment for these employees and for estimating the “interest” (and, we take it, the demands) of the agency with respect to overhead resources. Id. at 10. As to capital expenditures, the JMD Memorandum argues that the “actual costs” are whatever the host agency pays in a particular year and that the State Department would obtain an ownership interest in the capital resources commensurate with its cost allocation. Id. at 11. We do not need to resolve these issues. At least as long as a cost assignment method is reasonable, we believe that the fiscal experts are free to use or reject it: “As long as the amount agreed upon [by the agencies] results from a bona fide attempt to determine the actual cost and, in fact, reasonably approximates the actual cost,” there should be “no objection to payment in the amount agreed upon.” To Mr. Neal J. Price, Authorized Certifying Officer, International Cooperation Administration, B-133,913, 1958 WL 2065, at *1 (Comp. Gen. Jan. 21). We believe that the methods to be used here would rest on “a bona fide attempt to determine the actual cost” and would be reasonable. III. We also believe that the proposed arrangements would not violate the bar against “interagency financing” in section 610 of the Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, 118 Stat. 3, 351: No part of any appropriation contained in this or any other Act shall be available for interagency financing of boards (except Federal Executive Boards), commissions, councils, committees, or similar groups (whether or not they are interagency entities) which do not have a prior and specific statutory approval to receive financial support from more than one agency or instrumentality. We believe that this appropriations rider would not bar transactions under the Economy Act in connection with an intelligence center, staffed by employees of several agencies, that supplies goods and services that the constituent agencies use. To the extent that agencies would pay an intelligence center for goods and services, they would not “financ[e]” the center. In the ordinary meaning of the word, consumers do not “finance” a seller when they buy its products or services. See Webster’s Third New International Dictionary 851 (1993) (examples of use of term meaning “to raise or provide funds or capital for” include no instances of a consumer’s providing funds through a purchase). Moreover, even if orders under the Economy Act could be said to provide “interagency financing,” the Economy Act is a “prior and specific statutory approval to receive financial support from 66 Mechanisms for Funding Intelligence Centers more than one agency or instrumentality” within the meaning of this provision. While the Economy Act does not “specific[ally]” address interagency groups as a class, let alone any particular group, it does set up a mechanism by which a single agency may supply goods and services to several other agencies. We note that this interpretation accords with decisions of the Comptroller General. Shortly after Congress first enacted riders on interagency financing in 1969, the Comptroller General considered application of such a rider to the Interagency Institutes for Federal Hospital Administrators. To the Administrator, Veterans Administration, 49 Comp. Gen. 305 (1969). The Veterans Administration had contracted for the services of a director of this interagency venture, and the agency members then shared the costs of the contract. The Comptroller General found that the arrangement violated the rider, but he did not rule that the Economy Act would be unavailable for the purchase of goods or services from an interagency entity. Instead, he pointed to a peculiarity of the Economy Act at the time. Under the version then in effect, the Economy Act specifically named those agencies that could obtain goods or services from a supplying agency that contracted for goods or services from an outside seller, rather than providing them directly. One of the agencies involved in the particular case was not named in the statute and thus lacked the necessary authority to obtain goods and services that the supplying agency had obtained by contract: Concerning the use of the authority contained in section 601 of the Economy Act as a basis for the proposed arrangement, we note that that section permits only certain enumerated agencies to place orders with other agencies for services which the latter agencies may be in a position to procure by contract. Since the Department of Health, Education, and Welfare is not one of the enumerated agencies, [the Veterans Administration] may not obtain any services by that contract for that department under the authority of [the Economy Act]. 49 Comp. Gen. at 307 (citation omitted). Accordingly, the Economy Act was unavailable because its terms had not been met, not because the rider precluded its use. In a later opinion, the Comptroller General wrote that “[g]enerally, the restriction [against interagency financing] prohibits agencies from making voluntary contributions or payments in support of interagency ventures.” In the Matter of U.S. Equal Employment Opportunity Commission—Reimbursement of Registration Fees for Federal Executive Board Training Seminar, 71 Comp. Gen. 120, 121 (1991) (citation omitted). Accordingly, he concluded that the restriction does not . . . prohibit an agency from paying a registration fee to permit an employee to attend a Federal Executive Board sponsored EEO training seminar if, as is the case here, the fee appears to reasonably and accurately reflect the cost incurred by the Board for the 67 Opinions of the Office of Legal Counsel in Volume 28 employee to attend the seminar. So long as the payment of such a fee directly benefits the agency making the payment and the fee does not include an element designed to capture more than the costs of sponsoring the seminar, we would not view the expenditures at hand as interagency financing. Id. at 121–22 (citation omitted). This analysis largely tracks ours here. While the appropriations rider bars agencies, in the Comptroller General’s phrase, from making “voluntary contributions or payments in support of interagency ventures,” it does not forbid otherwise lawful transactions in which agencies pay for the costs of goods or services that they receive from interagency groups. See also In the Matter of Career Service Awards Program, 70 Comp. Gen. 16, 17 n.3 (1990).2 This interpretation is not undermined by the treatment of other appropriations riders in the Consolidated Appropriations Act that refer to the ban against interagency financing. These riders state that “notwithstanding . . . section 610,” funds “shall be available for interagency funding” of specific ventures, or they use similar formulations.3 If the funding arrangements under these provisions necessarily involved cost-based transactions under the Economy Act in which several agencies paid, it might be argued that the separate exceptions were necessary to overcome the bar on “interagency financing” under section 610 and that the Economy Act therefore did not constitute “a prior and specific statutory approval to receive financial support from more than one agency or instrumentality” within the meaning of section 610. However, the Office of Management and Budget informs us that, so far as it is aware, the allocation of costs to agencies under these provisions is not based on actual cost of goods or services supplied. For example, the funding for interagency councils under section 627 comes from contributions 2 In another opinion, the Comptroller General disputed the use of a cost allocation method that “does not necessarily relate” to the goods and services actually provided and “do[es] not identify what goods or services each participant actually receives.” In re Invoice to IRS for That Agency’s Share of CFC Solicitation Expenses Incurred in Northern Utah in 1985, 67 Comp. Gen. 254, 258 (1988). The State Letter observes that the opinion first found the rider to forbid the arrangement in question and then concluded that “[e]ven if one could successfully argue that this restriction did not apply to the voucher in question, payment on this voucher would still have to satisfy” the restrictions of the Economy Act and the other statutory restrictions on the transfer of funds. CFC Solicitation Expenses, 67 Comp. Gen. at 257. As the State Department reads the opinion, “the Comptroller General . . . discusses the Economy Act, but only as imposing additional requirements that would have to be satisfied, if the prohibition on inter-agency funding did not apply.” State Letter at 2. We believe that the Comptroller General’s later opinion on fees for equal employment opportunity training, discussed in text, more accurately states the governing legal principles. 3 Section 615 covers certain “national security and emergency preparedness telecommunications initiatives”; section 626 deals with the Joint Financial Management Improvement Program; section 627 concerns the Policy and Citizen Services account at the General Services Administration; section 630 applies to “specific projects, workshops, studies, and similar efforts to carry out the purposes of the National Science and Technology Council”; and section 648 deals with the transfer of money for the operation of Midway Atoll Airfield. Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, 118 Stat. 3, 353, 356, 357, 362. 68 Mechanisms for Funding Intelligence Centers under a formula according to which twenty percent of the funding is drawn from identical contributions from all twenty-four agencies involved, forty percent of the funding is based on each agency’s information technology spending as a percentage of the total for the twenty-four agencies, and another forty percent is based on each agency’s discretionary budgetary authority as a percentage of the total for the twenty-four agencies. The “notwithstanding” provisions in the statute thus permit funding arrangements that otherwise would constitute “interagency financing” as we have interpreted that term here—the payment of contributions that do not reflect actual costs. In any event, even if the funding arrangements under some or all of these provisions did necessarily involve cost-based transactions under the Economy Act in which several agencies paid, we do not believe that this fact would overcome the other arguments establishing that use of the Economy Act in cost-based transactions is not “interagency financing.”4 We therefore conclude that agencies may use the Economy Act to pay for facilities and services offered by TTIC and TSC and that it is within the reasonable discretion of fiscal officers to compute the “actual cost” to be charged for those facilities and services. M. EDWARD WHELAN III Principal Deputy Assistant Attorney General Office of Legal Counsel 4 We do not believe that the authority under section 648, which concerns the Midway Atoll Airfield, is being used at all. We understand that the Department of Transportation has used the Economy Act to place an order with the Department of Interior for operation of the facility. In this instance, the agencies did not use the authority in section 648 to engage in “interagency financing” under any plausible understanding of the term, because only one agency bore the entire cost. The arrangement, therefore, does not illuminate what the bar on “interagency financing” might mean. 69

Write a legal research memo on the following topic.

Recommendation that the Department of Justice not Defend the Constitutionality of Certain Provisions of the Bankruptcy Amendments and Federal Judgeship Act of 1984 Provisions o f the Bankruptcy Amendments and Federal Judgeship Act o f 1984 that retroactively extend the appointm ents o f bankruptcy judges who were in office at the time of the expiration of the transition provisions of the Bankruptcy Reform Act o f 1978, as amended, violate the Appointments Clause o f the United States Constitution. The Justice Department should not defend the constitutionality o f the reinstatem ents under the Bankruptcy Amendments and Federal Judgeship Act o f 1984, because its general obligation to defend the constitutionality of laws enacted by Congress does not extend to defending laws that unconstitutionally infringe upon the powers of the President. August 27, 1984 M e m o r a n d u m O p in io n for th e Attorn ey G eneral This memorandum supplements our previous memoranda of June 29, 1984 (to Assistant Attorney General McConnell, from Acting Assistant Attorney General Tarr) and July 6, 1984 (to Deputy Attorney General Dinkins, from Acting Assistant Attorney General Tarr) concerning the Bankruptcy Amend­ ments and Federal Judgeship Act of 1984 (1984 Act). As we indicated in our previous memoranda, and as we set forth in greater detail below, we believe that the provisions (Grandfather Provisions) of the 1984 Act that purport to reinstate all bankruptcy judges who were in office at the time of the expiration on June 27, 1984 of the transition provisions of the Bankruptcy Reform Act of 1978, as amended (1978 Act), are constitutionally defective. We further be­ lieve that the constitutional defects are sufficiently serious and would have such a significant impact on the appointment (and, potentially, the removal) power of the Executive that the Department should refrain from defending their constitutionality. The Department, however, should be prepared to defend the other provisions of the 1984 Act if they are challenged in court. We specifically recommend that the Department set forth its position regarding the Grandfather Provisions in the case of In re Benny, Civ. No. 84120 MISC RHS BKY (N.D. Cal.), as generally articulated in a draft brief prepared by the Civil Division and transmitted to this Office on August 23, 1984.1 1 NOTE: A fter this opinion w as issued by the O ffice o f Legal Counsel, the United States C ourt o f Appeals for the Ninth C ircuit refused to hold the reinstatem ent o f bankruptcy judges unconstitutional. See In re Benny, 812 F.2d 1133 (9th Cir. 1987). The C ourt o f A ppeals did not address the issue considered by the Office o f Legal Counsel — w hether C ongress may retroactively extend Presidential appointm ents under the G randfa­ ther Provisions o f the 1984 Act — because it construed the transition provisions o f the 1978 Act as prospective extensions o f the appointm ents. The C ourt o f A ppeals held that the prospective extension of the appointm ents was constitutional. 183 Under § 205 of Public Law No. 98-166, which continues the authorities contained in § 21 of Public Law No. 96-132, 93 Stat. 1049-50, the Attorney General is required to “transmit a report to each House of the Congress” in any case in which he determines that the Department of Justice “will refrain from defending . . . any provision of law enacted by the Congress in any proceeding before any court of the United States, or in any administrative or other proceed­ ing, because of the position of the Department of Justice that such provision of law is not constitutional.” Thus, if you concur that the Department should not defend the constitutionality of the Grandfather Provisions and should, as we recommend, participate in the Benny litigation consistent with our views and those of the Civil Division, Congress must be notified of that decision. If you concur, we will, with the participation of the Civil Division, draft a proposed letter to Congress. We have set forth below the reasons why we believe the Department should affirmatively contest, rather than defend, the constitution­ ality of the Grandfather Provisions. I. The 1978 Act was a comprehensive revision of the bankruptcy laws in which Congress made significant changes to both the substantive and procedural law of bankruptcy. See generally Pub. L. No. 95-598, 92 Stat. 2549 (1978). The procedural changes included modifications to the jurisdiction and the method of appointment of bankruptcy judges (previously referees in bankruptcy) to preside over bankruptcy proceedings. Section 201(a) of the 1978 Act provided for Presidential appointment of bankruptcy judges, who were to serve for a term of 14 years. See 92 Stat. at 2657. These judges were made subject to removal by the judicial council on account of “incompetency, misconduct, neglect of duty, or physical or mental disability.” Id. Because of their remov­ ability and the fixed term o f their appointments, it was clear that these bank­ ruptcy judges were not intended by Congress to be judges in the sense envi­ sioned by Article III of the Constitution. The 1978 Act provided for a transition period before the new appointment procedures would take full effect on April 1,1984. See 92 Stat. at 2682-88. The transition provisions provided that the previously existing bankruptcy courts would continue in existence and that incumbent bankruptcy referees (who had been and would continue to be during this transition period appointed by the district courts to serve 6 year terms) would continue after the expiration of their terms with no fresh appointment to be bankruptcy judges until the expiration of the transition provisions. A bankruptcy referee would not be continued only if the chief judge of the circuit court, after consultation with a merit screening committee, found the referee to be not qualified. The 1978 Act granted broad jurisdiction to bankruptcy courts over bank­ ruptcy and related matters. Although the Act initially vested this jurisdiction in the district courts, the bankruptcy courts (and the bankruptcy judges) were empowered to exercise all of the jurisdiction conferred upon the district courts 184 with respect to bankruptcy matters. See 92 Stat. at 2668. This jurisdiction included not only civil proceedings arising under the Bankruptcy Act, but also a wide variety of cases that might affect the property of an estate once a bank­ ruptcy petition had been filed. Thus, included within the bankruptcy courts’jurisdic­ tion were various types of contract actions, including claims based on state law. The constitutionality of this broad grant of jurisdiction to the bankruptcy judges was challenged in a case that was decided by the Supreme Court as Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982). In Northern Pipeline, the Court declared that the broad grant of jurisdic­ tion to bankruptcy courts, at least insofar as it included contract actions arising under state law, was inconsistent with the requirements of the Constitution that such actions, if heard in federal court, must be heard by judges with the protections and independence provided by Article III. The Court did not, however, apply its decision retroactively. In fact, the Court stayed the effect of its decision for three months in order to give Congress a chance to reconstitute the bankruptcy court system. The Court subsequently extended the stay, at the Solicitor General’s request, for an additional three months until December 24, 1982, 459 U.S. 813, but it denied the Solicitor General’s request for a further extension thereafter. 459 U.S. 1094 (1982). Although Congress failed to act by the deadline imposed by the Court, the bankruptcy court system continued to operate through various ad hoc arrange­ ments. Because the 1978 Act had initially granted jurisdiction of all bankruptcy proceedings to the district courts, the district courts resumed jurisdiction over all cases with respect to which bankruptcy court jurisdiction had been held unconstitutional under Northern Pipeline. Thus, although the bankruptcy judges were disabled under Northern Pipeline from exercising the broad jurisdiction conferred by the 1978 Act, the district courts were able to utilize these courts for the resolution of certain bankruptcy matters under a temporary delegation of authority. The constitutionality of this interim arrangement was upheld by several courts of appeals. See, e.g., In Re Kaiser, 122 F.2d 1574 (2d Cir. 1983); White Motor Corp. v. Citibank, N.A., 704 F.2d 254 (6th Cir. 1983); In Re Hansen, 702 F.2d 728 (8th Cir.), cert, denied sub nom. First N a t’l Bank v. Hansen, 463 U.S. 1208 (1983). After Northern Pipeline, Congress labored for almost two years to adopt corrective legislation. Under the 1978 Act, the transition provisions were to expire at midnight on March 31, 1984. Congress passed four consecutive eleventh hour extensions of the transition provisions in order to delay the demise of the bankruptcy courts and the terms of the bankruptcy judges. Each such extension was passed by Congress and signed into law by the President before the expiration of the prior period. Ultimately, however, both the courts and the appointments expired on June 27, 1984, without Congress’ passing either a new bankruptcy act or another temporary extension.2 The 1984 Act was 2 The original transition provisions provided that the term o f a bankruptcy ju d g e serving as a referee in bankruptcy when the 1978 A ct was enacted would expire “on M arch 31, 1984 or when his successor takes C ontinued 185 not passed by both Houses of Congress until June 29; it was not presented to the President until July 6, 1984; and it was not signed by the President until July 10, 1984. Thus, at the time the transition provisions expired, there were no bankruptcy courts and no bankruptcy judges. When the transition provisions expired, the Administrative Office of the U.S. Courts implemented a system under which the district courts handled bankruptcy matters with the assistance of the former bankruptcy judges, who performed their duties either as magis­ trates or consultants. The 1984 Act, however, purported to continue in the new offices created by that Act the judges whose positions and terms had gone out of existence on June 27, 1984. Section 121(e) states that the term of any bankruptcy judge who was serving on that date is extended to the day of enactment of the 1984 Act (July 10, 1984). Section 106 purports to extend the retroactive appointments so that they will expire on the date “four years after the date such bankruptcy judge was last appointed to such office or on October 1, 1986, whichever is later.” Although the President decided to sign the bankruptcy bill, he included the following language in his signing statement: I sign this bill with the following additional reservations. I have been informed by the Department of Justice that the provi­ sions in the bill seeking to continue in office all existing bank­ ruptcy judges are inconsistent with the Appointments Clause of the Constitution. I am also advised that Administrative Office of the U.S. Courts has reached the same conclusion. Therefore, I sign this bill after having received assurances from the Adminis­ trative Office that bankruptcy cases may be handled in the courts without reliance on those invalid provisions. At the same time, however, I urge Congress immediately to repeal the un­ constitutional provisions in order to eliminate any confusion that might remain with respect to the operation of the new bankruptcy system. On July 27,1984, the Director of the Administrative Office of the United States Courts issued a memorandum to all courts of appeals, district courts, and former bankruptcy judges in which he stated that the 1984 Act “may not be constitutionally valid.” Because of the “inherent risk of the invalidation of judicial actions taken by bankruptcy judges,” the Director concluded: I have therefore decided, upon advice of my General Counsel, and in accordance with my responsibilities under section 604 of 2 (. . . continued) office." Pub. L. No. 9 5 -5 9 8 , § 404(b), 92 Stat. 2549, 2683 (1982) (em phasis added). Thus, it is arguable that under these o riginal provisions the appointm ents o f th e “transition’' bankruptcy judges would have continued on even a fte r the expiration of the transition provisions. All four o f the extension acts, how ever, contained specific provisions that declared that th e term o f office o f the transition bankruptcy judges w ould expire at the conclusion o f the extension period. See, e.g., Pub. L. No. 98 -249, § 2, 98 Stat. 116, 116 (1984). Thus we believe these actions by Congress m ade clear that the offices o f bankruptcy judges expired at the end o f the extension period. 186 title 28 of the United States Code, that I will not approve payment of salary to any former bankruptcy judge purporting to exercise judicial authority under the provisions contained in section 121. Although the Administrative Office subsequently decided not to" withhold the pay of the former bankruptcy judges, its position on the constitutionality of the provision has not been altered. It was the apparent intent of the Administrative Office that the bankruptcy system continue to operate with the prior bank­ ruptcy judges’ functioning in the manner of magistrates or consultants to assist the district courts until remedial legislation could be obtained when Congress returned from its recess, or until the courts of appeals could exercise their authority under the 1984 Act to appoint new bankruptcy judges to 14 year terms. The latter process, because of the appointment procedures imposed upon the courts, was expected to take at least two months. n. It is beyond dispute that Congress could not constitutionally appoint bank­ ruptcy judges. The Appointments Clause of the Constitution, art. II, § 2, cl. 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 Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. In Buckley v. Valeo, 424 U.S. 1 (1976), the Court held that “any appointee exercising significant authority pursuant to the laws of the United States” is an officer of the United States who must be appointed in accordance with the Appointments Clause. Id. at 126. The Court also explicitly held that neither Congress nor its officers may appoint officers of the United States. Id. at 127. This prohibition is not altered by Congress’ plenary power to establish “uniform laws on the subject of Bankruptcies throughout the United States” under Article 1, § 8 of the Constitution. Thus, the Court in Buckley held: The position that because Congress has been given explicit and plenary authority to regulate a field of activity, it must therefore have the power to appoint those who are to administer the regulatory statute is both novel and contrary to the language of the Appointments Clause. Unless their selection is elsewhere provided for, all Officers of the United States are to be appointed in accordance with the Clause. 187 Id. at 132. Likewise, the Court ruled that the Necessary and Proper Clause of the Constitution cannot authorize Congress to do what the Appointments Clause forbids. Id. at 134—35. However, Congress did not purport in the Grandfather Provisions to make appointments, but rather only to extend the terms of persons previously ap­ pointed in accordance with the Constitution. Had Congress extended the terms before they expired on June 27, 1984, a different and more difficult issue would be presented. See Myers v. United States, 272 U.S. 52, 128-29 (1926) (Con­ gress may prescribe duties, terms and compensation for public offices); Shoe­ m aker \ . United States, 147 U.S. 282 (1893) (Congress may add new duties that are germane to the functions already performed by a current officer of the United States). Thus, while a congressional extension of the term of an appoint­ ment could well raise constitutional questions, it would be qualitatively differ­ ent than what Congress did in the 1984 Act. Here it is clear that both the terms of bankruptcy judges and their offices expired on June 27, 1984, two days before Congress enacted the Grandfather Provisions and nearly two weeks before the President signed them into law. Thus, the effect of Congress’ action was to reinstate and recreate officers of the United States whose status as such had terminated, albeit only for a short period. The critical issue, therefore, is whether Congress may constitutionally achieve this result by purporting to extend retroactively the offices and terms of the bankruptcy judges who were sitting on June 27. While credible arguments can be made in favor of the validity of Congress’ action, we conclude that this aspect of the 1984 Act violates the Appointments Clause. The Supreme Court has recognized that the Appointments Clause is a direct limitation on Congress’ power and essential to the operation of the separation of powers established by the Framers of the Constitution. Buckley v. Valeo, 424 U.S. at 118-19. Thus, the Court has held that the limitations imposed by the Appointments Clause must be strictly construed, stating: that Article II excludes the exercise of legislative power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior offices . . . and that the provisions of the second section of Article II, which blend action by the legislative branch, or by part of it, Senate advice and consent in the work of the executive, are limitations to be strictly construed and not to be extended by implication . . . . M yers v. United States, 272 U.S. at 164. The Court’s decisions concerning efforts to reinstate former officers of the United States reflect this strict construction. In Mimmack v. United States, 97 U.S. 426 (1878), for example, the President accepted the resignation of an army captain on November 8,1868, but attempted to revoke his acceptance about one month later, on December 11, 1868. The Court held that the attempted revoca­ tion was invalid, stating: 188 Officers of this kind are nominated by the President and con­ firmed by the Senate; and if the petitioner ceased to be such an officer when notified that his resignation had been accepted, it requires no argument to show that nothing could reinstate him in the office short of a new nomination and confirmation. Id. at 437. It is noteworthy that in this context the attempted action would have constituted a Presidential evasion of legislative prerogatives. The 1984 Act reflects an attempted Legislative Branch encroachment into authority lodged in other Branches. The Court considered an analogous situation in United States v. Corson , 114 U.S. 619 (1885). In that case, President Lincoln dismissed a military officer from the service on March 27, 1865. Shortly thereafter, on June 9, 1865, President Johnson revoked the order of dismissal and restored the officer to his former position. The Court found that as a result of President Lincoln’s order, the officer “was disconnected from that branch of the public service as com­ pletely as if he had never been an officer of the army.” Id. at 621. Accordingly, the Court held that the Appointments Clause barred President Johnson from reinstating the officer save with the advice and consent of the Senate, stating: The death of the incumbent could not more certainly have made a vacancy than was created by President Lincoln’s order of dismissal from the service. And such vacancy could only have been filled by a new and original appointment, to which, by the Constitution, the advice and consent of the Senate were necessary . . . . Id. at 622. See also Blake v. United States, 103 U.S. 227, 237 (1880) (“Having ceased to be an officer in the army, he could not again become a post chaplain, except upon a new appointment, by and with the advice and consent of the Senate.”). These precedents teach that from the moment an incumbent loses his status as an officer of the United States, he cannot be restored to office save by a new appointment in accordance with the Appointments Clause. While these particu­ lar cases protect the Senate’s right under the Appointments Clause to consent to appointments, we see no principled basis for finding the President’s appoint­ ment power to be entitled to less protection in the context of an attempt by Congress to exercise that power. In fact, these cases show that the Court has been sensitive to erosion of the separation of powers principles at stake, which principles act neutrally to protect the process rather than any particular office holder. Indeed, Congress by its actions has acknowledged that it lacks power to reappoint an officer of the United States. Thus, Congress has on occasion changed the retirement pay of military officers by retroactively changing their rank as of the date of their retirement, but has recognized that it cannot place an officer who was discharged from service on the retired list without first provid­ ing for his reappointment: 189 Congress has frequently exercised the power of changing the mere rank of officers without invoking the constitutional power of the Executive to appoint the incumbents to new offices. But when it has been the purpose to place on the retired list one who has been discharged from service, who no longer holds any office in the Army, Congress has provided for his restoration or reappointment in the manner pointed out by the Constitution, gener­ ally by the President alone, and then has authorized his retirement. Wood v. United States, 15 Ct. Cl. 151, 161 (1879), a ffd , 107 U.S. 414 (1882). See, e.g., Collins v. United States, 14 Ct. Cl. 568, 15 Ct. Cl. 22 (1879). A much more recent case, United States v. Will, 449 U.S. 200 (1980), also supports the conclusion that direct constitutional limitations on congressional power will be strictly enforced. In that case, the Court considered a statute repealing a scheduled cost of living salary increase forjudges. One of the four separate measures under consideration in Will became law when signed by the President on October 1,1976, hours after the increase took effect. Although no judge ever received the increased salary, and although the statute would have been constitutional if it had been signed by the President a few hours earlier, the Court held that the statute violated the Compensation Clause because it pur­ ported to repeal a salary increase technically already in force. 449 U.S. at 225. In reaching this result, the Court noted, “ “‘[w]henever it becomes important to the ends of justice, or in order to decide upon conflicting interests, the law will look into fractions of a day, as readily as into fractions of any other unit of time.’” ” Id. at 225 n.29 (quoting Louisville v. Savings Bank, 104 U.S. 469,474— 75 (1881) (quoting G rosvenor\. Magill, 37 111. 239, 24041 (1865))). This principle that direct constitutional limitations on the powers of a Branch of Government, here Congress, must be strictly enforced distinguishes the cases in which the Court has upheld retroactive statutes. E.g., Pension Benefit Guar­ anty Corp. v. R.A. Gray & Co., 467 U.S. 717 (1984); United States v. Darusmont, 449 U.S. 293 (1981). These cases concern the limits on retroactive economic legislation imposed by the Due Process Clause, not an explicit constitutional limitation on congressional power central to the separation of powers. We are not aware of any case in which the Court has allowed Congress to accomplish by indirection, through the guise of retroactive legislation, what it could not do directly under the Constitution. While the conclusion that the moment an officer of the United States loses his status as such he cannot be reinstated except in accordance with the Appoint­ ments Clause is admittedly a technical one, it is no more technical than the Will Court’s holding that a judicial salary increase is fully protected by the Compen­ sation Clause the moment it takes effect. Moreover, the Court embraced pre­ cisely this construction of the Appointments Clause with respect to limitations on Presidential power in Mimmack, Corson and Blake. The Supreme Court has not hesitated to enforce structural provisions of the Constitution in their techni­ cal sense, undoubtedly because it is extremely difficult to locate a stopping 190 point once the initial erosion is permitted. Here, if a two-week hiatus were to be tolerated, where would the line be drawn? A great deal of uncertainty and litigation would undoubtedly follow. On the other hand, requiring Congress to act, if it wishes to do so, before legislation expires, is not unduly burdensome. Here, for example, Congress extended the terms of the bankruptcy judges four times before it finally failed to meet its own deadline. One could argue against this reading of the Appointments Clause that the values protected by that provision are not implicated by Congress’ action at issue here. In this regard, it is significant that the persons whose terms were extended were initially appointed in accordance with the Appointments Clause, and that Congress extended the terms of all sitting bankruptcy judges without attempting to evaluate the wisdom of retaining any particular individual. More­ over, Congress acted on an emergency basis in the face of perceived potential disruption of the bankruptcy system. However, the fact that the initial appoint­ ments were made in accordance with the Constitution does not distinguish Mimmack, Corson and Blake. Furthermore, an emergency cannot create powers not afforded a particular branch of Government under the Constitution. Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952) (President’s seizure of steel mills during Korean War held unconstitutional as violation of separation of powers). For these reasons, we conclude that once the terms and offices of the bankruptcy judges expired on June 27, 1984, those officers could not be reinstated except by a new appointment made in accordance with the Appoint­ ments Clause. Congress could not evade this requirement through the fiction of retroactively extending the terms of the judges who were sitting on that date. While this conclusion may appear to some to be technical and restricts a convenient and efficient mechanism for dealing with an emergency, we believe that it is correct in light of the language and intent of the Constitution as interpreted by the Supreme Court. As the Court stated in INS v. Chadha, 462 U.S. 919(1983): The choices we discern as having been made in the Constitu­ tional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmen­ tal acts to go unchecked. There is no support in the Constitution or decisions of this Court for the proposition that the cumber­ someness and delays often encountered in complying with ex­ plicit Constitutional standards may be avoided, either by the Congress or by the President. Id. at 959. III. The Supreme Court has consistently held that whether an unconstitutional provision may be severed from a statutory scheme is a matter of congressional 191 intent, and that the invalid portions of a statute should be severed “unless it is evident that the legislature would not have enacted those provisions that are within its power, independently of that which is not.” Champlin Refining Co. v. Corporation C om m ’n , 286 U.S. 210, 234 (1932). See, e.g., Buckley v. Valeo, 424 U.S. at 108. In reaffirming these principles in INS v. Chadha, the Court identified three basic principles with respect to severability. First, the Court reiterated the basic rule, stating: Only recently this Court reaffirmed that the invalid portions of a statute are to be severed ‘“ unless it is evident that the Legisla­ ture would not have enacted those provisions which are within its power, independently of that which is not.’” Buckley v. Valeo, 424 U.S. 1, 108 (1976), (quoting Champlin Refining Co. v. Corporation Comm’n, 286 U.S. 210, 234 (1932)). 462 U.S. at 931-32. Second, the Court stated that a severability clause is strong evidence that Congress did not intend for the entire statute to fall when one of its provisions is held to be unconstitutional. Accordingly, the presence of such a clause in the statutory scheme reinforces the presumption of severability. Id. Finally, the Court held that “a provision is further presumed severable if what remains after severance is ‘fully operative as a law.’ Champlin Refining Co. v. Corporation C om m ’n, supra, 286 U.S. at 234.” 462 U.S. at 934, Applying these principles, we conclude that the Grandfather Provisions of the 1984 Act are severable. We have been unable to locate anything in the language of the 1984 Act or its legislative history tending to rebut the usual presumption of severability. To the contrary, § 119 provides: If any provision of this Act or the application thereof to any person or circumstance is held invalid, the remainder of this Act, or the application of that provision to persons or circumstances other than those as to which it is held invalid, is not affected thereby. This severability clause is, as noted above, persuasive evidence of congres­ sional intent. Finally, the remaining provisions of the 1984 Act would be “fully operative as a law” in the absence of the Grandfather Provisions. Under § 104 of the 1984 Act, bankruptcy judges are to be appointed by the courts of appeals for the circuits in which the judgeships are located. The Grandfather Provisions are designed to facilitate the transition to appointments by the court of appeals by providing a temporary starting corps of judges. If the Grandfather Provisions are invalidated, the courts of appeals could appoint bankruptcy judges in accordance with the appointment scheme created by the 1984 Act. The courts of appeals would determine whether to reappoint some or all of the bankruptcy judges who were sitting on June 27,1984. But whatever the courts’ decisions in this regard, the bankruptcy court structure and the substantive provisions of bankruptcy law established by the 1984 Act would remain in place. Moreover, 192 because § 101 of the 1984 Act assigns plenary jurisdiction over bankruptcy matters to the federal district courts, they will be able to establish suitable arrangements for handling bankruptcy cases pending appointment of bank­ ruptcy judges by the courts of appeals. Thus, the 1984 Act could operate fully without the Grandfather Provisions. For these reasons, we conclude that the Grandfather Provisions are severable. IV. The President and his subordinates have a constitutionally imposed duty “to take Care that the Laws be faithfully executed.” U.S. Const, art. II, § 3. Attor­ neys General have generally construed this obligation to include the enforce­ ment and the defense in court of laws enacted by Congress irrespective of questions that have been or might be raised regarding their constitutionality: [I]t is not within the province of the Attorney General to declare an Act of Congress unconstitutional at least, where it does not involve any conflict between the prerogatives of the legislative department and those of the executive department and that when an act like this, of general application, is passed it is the duty of the executive department to administer it until it is declared unconstitutional by the courts. 31 Op. Att’y Gen. 475, 476 (1919). See also , e.g., 40 Op. Att’y Gen. 158 (1942); 39 Op. Att’y Gen. 11 (1937); 38 Op. Att’y Gen. 252 (1935); id. at 136 (1934); 36 Op. Att’y Gen. 21 (1929). Like the courts, the Executive should (and does) apply a presumption in favor of the constitutionality of a federal statute. E.g., INS v. Chadha, 462 U.S. 919, 944 (1983). Members of Congress take an oath to uphold the Constitution, and the Executive should presume that, in passing legislation, Members of Congress have acted with due regard for their responsibilities to the Constitution. See Rostker v. Goldberg, 453 U.S. 57, 64 (1981). The Executive’s duty faithfully to execute the law and recognition of the presumption of constitutionality generally accorded duly enacted statutes result in all but the rarest of situations in the Executive’s enforcing and defending laws enacted by Congress. United States v. Lee, 106 U.S. 196,220 (1882) (“No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.”). There are sound reasons of policy for this general practice. Our constitutional system is delicately balanced by the division of power among the three Branches of the Government. Although each Branch is not “hermetically” sealed from the others, Buckley v. Valeo, 424 U.S. at 121, and certain areas of overlapping responsibility may be identified, the quintessential functions of each Branch may be easily stated. It is axiomatic that the Legislature passes the laws, the Executive executes the laws, and the Judiciary interprets the laws. Any decision 193 by the Executive that a law is not constitutional and that it will not be enforced or defended tends on the one hand to undermine the function of the Legislature and, on the other, to usurp the function of the Judiciary. It is generally inconsis­ tent with the Executive’s duty, and contrary to the allocation of legislative power to Congress, for the Executive to take actions that have the practical effect of nullifying an Act of Congress. It is also generally for the courts, and not the Executive, finally to decide whether a law is constitutional. Any action of the President that precludes, or substitutes for, a judicial test and determina­ tion would at the very least appear to be inconsistent with the allocation of judicial power by the Constitution to the courts. Exceptions to this general rule, however rare, do and must exist. These arise whenever the role of enforcing and defending a federal statute may not suffi­ ciently discharge the Executive’s constitutional duty. The President’s veto power will usually be adequate to express and implement the President’s judgement that an act of Congress is unconstitutional. By exercising his veto power, the President may fulfill his responsibility under the Constitution and also impose a check on the power of Congress to enact statutes that violate the Constitution. On some occasions, however, the exercise by the President of his veto power may not be feasible. For example, an unconstitutional provision may be a part of a larger and vitally necessary piece of legislation. The Supreme Court has held that the President’s failure to veto a measure does not prevent him subsequently from challenging the Act in court, nor does Presidential approval of an enactment cure constitutional defects. National League o f Cities v. Usery, 426 U.S. 833, 841 n.12 (1976); Myers v. United States, 272 U.S. 52 (1926). Cases in which the Executive has chosen not to defend an Act of Congress may be placed in one of two categories. One category of cases involves statutes believed by the Executive to be so clearly unconstitutional as to be indefensible but which do not trench on separation of powers. Refusals to execute or defend statutes based upon a determination that they meet these criteria are exceed­ ingly rare.3 3 O ur research has uncovered only three docum ented situations o f this nature, although we cannot be sure there are not o thers, because informal (or e v en formal) decisions not to execute statutes would not necessarily be recorded in such a w ay as to make them accessible to us. And, if the Executive refused to enforce or defend the statute, the m atter may never have co m e to the courts, o r if it did, would have been unlikely to leave a prom inent mark. The first instance o f refusal to defend su ch a statute that we have located occurred in 1962 in the context o f a private civil rights action contesting th e constitutionality o f a federal law that provided federal funds for hospitals having “separate but equal facilities.'* In that case, Simpkins v. Moses H. Cone Memorial Hospital, 211 F. Supp. 628, 640 (M .D .N .C. 1962), rev'd, 323 F.2d 959 (4th C ir. 1963), cert, denied, 376 U.S. 938 (1964), the U nited States intervened an d took the position that the statute in question, then 42 U.S.C. § 299e(f), w as unconstitutional. O n O cto b er 11, 1979, form er Attorney G eneral C iviletti, over the strong objection o f this O ffice, notified C ongress by identical letters to the S peaker o f the H ouse and the President pro tempore of the Senate that the D epartm ent w ould not defend § 399(a) o f the Public Broadcasting Act o f 1967, 47 U.S.C. § 399(a). That decision w as reversed by you in your le tte r to C hairm an Thurm ond and Senator Biden o f the Senate C om m ittee on the Judiciary o f April 6, 1981. The Suprem e C ourt subsequently struck down, by a narrow 5 C ontinued 194 The other category involves statutes that the Executive believes are uncon­ stitutional (although not necessarily so clearly unconstitutional as statutes falling in the first category) and that usurp executive authority and therefore weaken the President’s constitutional role. The following statement of Presi­ dent Andrew Johnson’s counsel in an early recorded statement addresses the President’s responsibilities with respect to the second of these categories: If the law be upon its very face in flat contradiction of plain expressed provisions of the Constitution, as if a law should forbid the President to grant a pardon in any case, or if the law should declare that he should not be Commander-in-Chief, or if the law should declare that he should take no part in the making of a treaty, I say the President, without going to the Supreme Court of the United States, maintaining the integrity of his department, which for the time being is entrusted to him, is bound to execute no such legislation; and he is cowardly and untrue to the responsibility of his position if he should execute it. 2 Trial o f Andrew Johnson 200 (Washington 1868). This statement, of course, was made in the context of the attempt to impeach President Johnson for, inter alia , having refused to obey the Tenure in Office Act, an act “which he believed with good reason . . . to be unconstitutional.” 38 Op. Att’y Gen. 252, 255 (1935). This early statement anticipated a practice that has subsequently been fol­ lowed by the Executive under which the President need not blindly execute or defend laws enacted by Congress if such laws trench on his constitutional power and responsibility. Of course, under that practice the President is obli­ gated to respect and follow the decisions of the courts as the ultimate arbiters of the Constitution. This category of cases exists because, in addition to the duty of the President to uphold the Constitution in the context of the enforcement of Acts of Con­ gress, the President also has a constitutional duty to protect the Presidency from encroachment by the other Branches. He takes an oath to “preserve, protect and defend” the Constitution. An obligation to take action to resist encroachments on his institutional authority by the Legislature may be implied from that oath, especially where he may determine it prudent to present his point of view in court. In this regard, we believe that the President must, in appropriate circum­ stances, resist measures which would impermissibly weaken the Presidency: “The hydraulic pressure inherent within each of the separate Branches to 3 ( . . . continued) 4 vote, that aspect o f § 399(a) w hich had been view ed by this O ffice in 1979 as least susceptible to a credible defense, in contrast to the other provisions which we believed to be clearly defensible. See FCC v. League o f Women Voters o f California, 468 U.S. 364 (1984). Finally, on January 13, 1981 form er A ttorney General C iviletti, with the concurrence o f this O ffice, inform ed Congress by identical letters to the Speaker o f the House and the President pro tempore o f the Senate that the D epartm ent w ould not prosecute, under 18 U.S.C. § 1461 and 39 U.S.C. § 3001(e), the mailing o f truthful, oon-deceptive advertising regarding legal abortions. 195 exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.” INS v. Chadha, 462 U.S. at 951 (emphasis added). This duty to preserve the institution of the Presidency, captured above in the words of President Andrew Johnson’s counsel, was articulated eloquently and somewhat more authoritatively by Chief Justice Chase, who presided over the trial in the Senate of President Johnson. Chief Justice Chase declared that the President had a duty to execute a statute passed by Congress which he believed to be unconstitutional “precisely as if he held it to be constitutional.” However, he added, the President’s duty changed in the case of a statute which direcdy attacks and impairs the executive power confided to him by [the Constitution]. In that case it appears to me to be the clear duty of the President to disregard the law, so far at least as it may be necessary to bring the question of its constitutionality before the judicial tribunals. * * * How can the President fulfill his oath to preserve, protect, and defend the Constitution, if he has no right to defend it against an act of Congress, sincerely believed by him to have passed in violation of it? R. Warden, A n Account o f the Private Life and Public Services o f Salmon Portland Chase 685 (1874) (emphasis in original).4 If the President does not resist intrusions by Congress into his sphere of power, Congress may not only successfully shift the balance of power in the particular case but may succeed in destroying the Presidential authority and effectiveness that would otherwise act as a check on Congress’ exercise of power in other circumstances. The major historical examples of refusal by the Executive to enforce or defend an Act of Congress have been precipitated by Congress’ attempt to alter the distribution of constitutional power by arrogating to itself a power that the Constitution does not confer on Congress but, instead, reposes in the Executive. In such situations, a fundamental conflict arises between the two Branches, and this conflict has generally resulted in Attorneys General presenting to the courts the Executive’s view of what the Constitution requires. The potential for such a conflict’s arising was expressly recognized by Attorney General Palmer in 1919 when he issued the opinion, quoted above, that the general duty of the Attorney General to enforce a statute did not apply in the case of a conflict between the Executive and the Legislature. See 31 Op. Att’y Gen. 475, 476 (1919). Seven years later, this caveat to the general rule was applied when the President acted contrary to a statute prohibiting the removal of a postmaster. That act led to litigation in which the Executive challenged, successfully, the 4 C h ie f Ju stice C h a se 's comments w ere m ade in a letter w ritten the day after the Senate had voted to exclude evidence that the entire cabinet had advised President Johnson that the Tenure of O ffice Act w as unconstitu­ tional. Id. See M. B enedict, The Impeachment and Trial o f Andrew Johnson 154-55 (1973). U ltim ately, the S enate did adm it evidence that the President had desired to initiate a court test of the law. Id. at 156. 196 constitutionality of that statute in litigation brought by the removed postmaster. Myers v. United States, 272 U.S. 52 (1926). Myers appears to be the first case in which the Executive acted contrary to and then directly challenged the constitutionality of a federal statute in court: In the 136 years that have passed since the Constitution was adopted, there has come before this Court for the first time, so far as I am able to determine, a case in which the government, through the Department of Justice, questions the constitutional­ ity of its own act. Id. at 57 (summary of oral argument of counsel for appellant Myers).5 Almost a decade later, the Executive argued, unsuccessfully, that § 1 of the Federal Trade Commission Act would be unconstitutional if interpreted to prohibit the President’s removal of a member of the Federal Trade Commission. Humphrey’s Executor v. United States, 295 U.S. 602 (1935). A similar argu­ ment was advanced, again unsuccessfully, by the Executive with respect to an analogous removal issue in the case of Wiener v. United States, 357 U.S. 349 (1958). Between these two cases, the Executive carried out, but then refused to defend when sued, and indeed successfully challenged the constitutionality of, a statute that directed that the salaries of certain federal employees not be paid. United States v. Lovett, 328 U.S. 303 (1946).6 In 1976, the Appointments Clause was once again at issue when the Executive challenged, successfully, the appointment of members of the Federal Election Commission by officers of Congress. Buckley v. Valeo, 424 U.S. 1 (1976). In addition to these examples, there have been and continue to be a number of cases involving the constitutionality of so called legislative veto devices in which the Executive has successfully challenged the constitutionality of legisla­ tive vetoes. Representative of this class of cases is, of course, INS v. Chadha, 462 U.S. 919 (1983). As is true of the other cases discussed above, the Court has never suggested that there has been any impropriety in the Executive’s conduct.7 5 It is perhaps notew orthy that this summary o f the argum ent o f appellant M yers' counsel goes on to record counsel's view that as to the appearance o f the D epartm ent o f Justice in opposition to the statute, “I have no criticism to offer; I think it is but proper." Further, that summary o f the oral argum ent does not record any observations w hatsoever on this point by Senator G eorge W harton Pepper, who appeared as counsel for the Senate and H ouse o f R epresentatives as amicus curiae See 272 U.S. at 65-77. 6 The Suprem e C ourt decided that the statute in question was unconstitutional as a bill o f attainder, a constitutional defect not necessarily suggesting a clash between legislative and executive pow er. Because the statute w as directed at subordinates o f the President, however, the case took on that characteristic both as regards the bill o f attainder issue and, more specifically, with respect to the argum ent advanced by the em ployees and jo in ed in by the Solicitor General that the statute at issue constituted an unconstitutional attem pt by Congress to exercise the pow er to remove Executive B ranch em ployees See B rief for the U nited States at 10, 56, United States v. Lovett. 328 U.S. 303 (1946) (No. 809). Thus, Lovett falls squarely w ithin the second category o f cases as representing a clash betw een legislative and executive power. 7 On July 30, 1980 Attorney General Civiletti transm itted to Chairman Baucus of the Subcom m ittee on Lim itations o f C ontracted and D elegated A uthority o f the Senate Com m ittee on the Judiciary a detailed explanation o f this D epartm ent's policy with regard to defending federal statutes against constitutional challenges. It is perhaps notew orthy that in his letter to the Attorney General, as observed by the Attorney General in his response, Chairman B aucus had excluded from his broad inquiry “those situations where the Continued 197 The general policy outlined above was rearticulated during this Administra­ tion in your letter of April 6, 1981, to Chairman Thurmond and Senator Biden of the Senate Committee on the Judiciary in response to their request that the Department reconsider its decision not to defend a provision of the Federal Communications Act being challenged in a case brought by the League of Women Voters in 1979. See supra note 2. That letter stated your view that the Executive “appropriately refuses to defend an Act of Congress only in the rare case when the statute either infringes on the constitutional power of the Executive or when prior precedent overwhelmingly indicates that the statute is invalid.” As indicated by our discussion of the merits of the constitutionality of §§ 106 and 121 of the Bankruptcy Amendments and Federal Judgeship Act of 1984 in part II above, the practical and legal effect of those provisions is to grant Congress the power to appoint officers of the United States. It is true that under the 1984 Act the power to make fresh appointments is vested in the courts rather than in the President or a head of a department. It is also true that bankruptcy referees whose terms were purportedly retroactively extended by the 1984 Act were themselves appointed by the district courts both prior to 1978 and under the transition provision of the 1978 Act. Thus, an argument could be made that the action o f Congress in this situation does not infringe so directly on the power of the President as to place this particular enactment in the category of statutes thought to invade the prerogatives of the Executive. That argument is, however, untenable. There can be no doubt that in the 1984 Act Congress could have placed the appointment power in the President, with or without the advice and consent of the Senate, the Heads of Departments, or the Courts pursuant to the Appoint­ ments Clause. If it were established that Congress could indeed make appoint­ ments in the manner they are made by the 1984 Act, there surely would be no principled basis upon which that power could be limited under the Appoint­ ments Clause to the appointment of officers whose appointments were gener­ ally assigned to the courts as opposed to the President or Heads of Depart­ ments. Thus, the principle of constitutional law involved squarely implicates the constitutional prerogatives of the Executive and warrants a challenge to the 1984 Act on this point by the Executive under the precedent discussed with respect to the second category of situations in which the Executive has histori­ cally refrained from defending the constitutionality of an Act of Congress. The inescapable fact is that if Congress may, as Congress would have it, retroac­ tively extend the term of an officer of the United States whose term has expired, Congress presumptively could do so as regards any officer, thereby depriving 7 ( . . . continued A cts them selves touch on constitutional separation o f pow ers between Executive and Legislative Branches.” G iven the otherw ise broad nature of C hairm an B aucus’ inquiry and the pendency o f Chadha in the United States C ourt o f A ppeals for th e Ninth C irc u it, it would be reasonable to infer from his request an absence of concern as regards the A ttorney G eneral's challenge to the constitutionality o f such devices 198 the President or his subordinates of the important control they exercise through the appointment process.8 We would add that this is not a case in which the Department’s refusal to enforce or defend might produce a nullification of the Act of Congress which no private person could prevent nor Congress effectively challenge. Although it is not necessary to conclude that the obligation to defend the statute would be different in the absence of a lawsuit previously filed by private persons, given the fact that such a lawsuit has been filed, and that the courts will determine the constitutional issue, we believe that the constitutional system will be better served by early rather than delayed resolution of the issue. Therefore, we believe that this is a case in which the Department, amply supported by prior precedent, should depart from its usual practice of defending the constitutionality of federal statutes. We recommend that an appropriate letter be sent to the President of the Senate and the Speaker of the House to inform them of the Department’s decision to defend the constitutionality of the 1984 Act as a whole, but to refrain from defending the constitutionality of the Grandfather Provisions. T h eo do re B. O lson Assistant Attorney General Office o f Legal Counsel 8 Indeed, if C ongress could retroactively extend the term s o f officers w hose terms have expired. Congress could arguably not only arrogate to itself, as it does here, the pow er to appoint, but could exercise that pow er even in the context o f an o ffice’s having been filled in the interim by the President pursuant to his authority to m ake recess appointm ents; on such a hypothetical set o f facts. C ongress would not only have purported to appoint one o fficer but would, in doing so, have purported to remove another. 199

Write a legal research memo on the following topic.

Application of the Resource Conservation and Recovery Act to the Department of Energy’s Atomic Energy Act Facilities The nuclear production and weapons facilities that are operated by the Department o f Energy (D O E) pursuant to the Atomic E nergy Act (AEA) are generally subject to the requirements o f the Resource Conservation and Recovery Act (RCRA) governing the disposal o f solid wastes, including applicable standards, regulations, permit requirem ents, and enforcement mecha­ nism s. 42 U .S.C. §69 6 1 . Particular R CRA regulations or requirem ents may not apply to DOE facilities when the applica­ tion o f such regulation or requirement would be inconsistent with specific requirements o f the AEA that flow directly from DO E’s statutory m andate to develop and use atomic energy. 42 U.S.C. § 6905(a). W hether a particular RCRA regulation or requirem ent is inconsistent with the requirements o f the AEA m ust be analyzed by DO E and the Environm ental Protection Agency on a case-bycase basis. How ever, § 1006(a) o f RCRA, 42 U.S.C. § 6905(a), should relieve DOE from com pliance with RCRA regulations or requirem ents (1) if they conflict with prescriptive directives contained in the AEA itself, such as the AEA restrictions on public disclosure of restricted data; (2) if compliance would prevent DOE from carrying out authorized AEA activities; or (3) if compliance w ould be inconsistent with specific operational needs o f a facility that are unique to the production o f nuclear material or components. In addition, a state may not exercise veto power o ver the establishm ent or operation of a DOE facility, either by denying necessary permits, or by seeking injunctive relief, because o f noncompliance with a RCRA regulation that is inconsistent with the AEA. February 9, 1984 M em orandum O Land p in io n f o r t h e and A s s is t a n t A t t o r n e y G e n e r a l , N a t u r a l R e s o u r c e s D iv is io n This responds to your request for our analysis regarding whether, or to what extent, the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. (RCRA) applies to chemical wastes generated by nuclear production and weapons facilities owned by the Department of Energy (DOE) and operated under authority provided by the Atomic Energy Act of 1954, as amended, 42 U.S.C. §§ 2011 e t seq. (AEA). The context for your request is a difference of opinion between DOE and the Environmental Protection Agency (EPA) over whether waste treatment and disposal facilities and methods used at DOE’s Atomic Energy Act plants are subject to RCRA standards, permit require­ ments, and enforcement mechanisms. DOE has taken the position that § 1006(a) of RCRA, 42 U.S.C. § 6905(a), which provides that RCRA does not apply to “activit[ies] . . . subject t o . . . the Atomic Energy Act of 1954 . . . except to the 6 extent such application (or regulation) is not inconsistent with the requirements of such Act[],” exempts its AEA facilities from all RCRA regulation. EPA contends that DOE’s AEA facilities are subject to RCRA, as are all other federal facilities, but that specific RCRA regulations may not apply to some aspects of DOE’s operations, if application of those regulations would be inconsistent with particular requirements flowing directly from the language or purpose of the AEA.1 We have received submissions from DOE and EPA on the applicability of RCRA, including copies of previous correspondence between those agencies on the issue. Based on our review of those materials, discussions with your Division and personnel at DOE and EPA, and our own research, we have concluded that EPA’s interpretation of § 1006(a) represents the sounder view of the law. For the reasons set forth below, we conclude that DOE’s Atomic Energy Act facilities are generally subject to the requirements of RCRA, including compliance with applicable standards, regulations, and permitting requirements, and are generally subject to the enforcement mechanisms estab­ lished by RCRA. Section 1006(a) leaves open the possibility, however, that particular RCRA regulations or requirements are not applicable to DOE’s facilities, or to a particular facility, because such regulations or requirements would be “inconsistent with the requirements of [the AEA].” We do not interpret “requirements of [the AEA],” as used in § 1006(a), as broadly as DOE urges, i.e., to encompass all DOE regulations, orders, and directives that apply to, or may affect, health and safety aspects of its Atomic Energy Act facilities. Rather, in order to give reasonable content to § 1006(a), we must interpret the term “requirements” more narrowly, as EPA urges, in light of the somewhat different purposes of the AEA and RCRA. Thus, we believe that § 1006(a) would relieve DOE from compliance with RCRA only in particular circumstances where DOE can demonstrate that application of a regulation or requirement would be inconsistent with specific requirements of the AEA that flow directly from DOE’s statutory mandate to develop and use atomic energy. Although it is difficult in the absence of particular facts to give precise content to the term “requirements,” we believe DOE could demonstrate that particular aspects of RCRA should not apply to operation of its facilities (or particular facilities), for example: if the RCRA regulation would conflict with prescriptive directives contained in the AEA itself, including principally the restrictions on public disclosure of “restricted data;”2 if compliance would prevent DOE from carrying out authorized Atomic Energy Act activities; or if compliance with a particular regulation or require1D OE’s position has been challenged in recently filed litigation involving D O E’s Y-12 Plant in O ak Ridge, Tennessee, at which nuclear w eapons com ponents are fabncated and assem bled. Legal Envt'l Assistance Found, v. Hodel, C.A. No. 3 -8 3 -5 2 (E.D. Tenn filed Sept. 2 0 ,1 9 8 3 ). In addition, we understand that D OE is currently negotiating with officials in South C arolina w ith respect to regulation o f waste handling at Atomic Energy A ct facilities in that state, and that those officials have taken the position that operation o f those facilities should be conditioned on receipt o f state waste handling perm its under the RCRA scheme. 2 See 42 U.S.C. §§ 2161-2168. 7 ment would be inconsistent with specific operational needs of a facility that are unique to the production of nuclear material or components. Obviously, this interpretation does not provide an exact or necessarily com­ prehensive standard. We attempt below to provide as much guidance as pos­ sible to you and to EPA for implementation of our conclusions. In the abstract, however, we cannot determine which particular aspects of RCRA, or particular regulations, would be “inconsistent with the requirements of [the AEA].” That determination must be made by your agency and EPA based on an analysis, from both a general and a facility specific perspective, of how implementation of RCRA will affect the operation of DOE’s Atomic Energy Act facilities. I. Background RCRA, passed in 1976, established a broad regulatory scheme governing the generation, transportation, storage, and disposal of solid wastes. Under that Act, the practice of “open dumping” is prohibited, see 42 U.S.C. § 6945, and the states are encouraged by federal financial and technical assistance to prepare and submit to EPA for approval overall plans for regulation of solid waste. See id. §§ 6931, 6948. The treatment, storage, and disposal of solid wastes considered by EPA to be “hazardous wastes”3 are subject to a permit requirement, see id. § 6925. and generators, transporters, and owners or opera­ tors of facilities for the treatment, storage, and disposal of solid wastes must meet such minimum standards promulgated by EPA “as may be necessary to protect human health and environment.” See id. §§ 6922,6923,6924. As under the regulatory schemes established by the Clean Air Act, 42 U.S.C. §§ 7401 et seq., and the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. (FWPCA), RCRA authorizes the states to administer the regulatory scheme, including issuance of permits and enforcement of sanctions for violations, if the Administrator of EPA finds that a state’s regulatory scheme is “equivalent” to the federal scheme.4 No state may impose any requirements for the manage­ ment of hazardous wastes that are less stringent than the standards promulgated by EPA, but states are expressly authorized to impose requirements that are more stringent than federal standards. See 42 U.S.C. § 6929. RCRA also provides for private “citizens suits” against persons, including the United States, for violation of any permit, standard, regulation, condition, require­ ment, or order that has become effective pursuant to RCRA. See id. § 6972. 3 “H azardous w aste” is defined by R C R A to mean “a solid w aste, o r com bination of solid wastes, which because o f its quantity, concentration, o r physical, chem ical, o r infectious characteristics may — (A ) cause, o r significantly co n trib u te to an increase in m ortality or an increase in serious irreversible, o r incapacitating reversible, illness; or (B ) pose a substantial present o r potential hazard to human health or the environm ent when im properly treated, stored, transported, or disposed of, o r otherw ise managed.” 42 U .S.C . § 6903(5). EPA is responsible fo r identifying the characteristics o f hazardous wastes and listing p articu lar hazardous w astes that are su b ject to the hazardous waste m anagem ent provisions o f RCRA. Id. §6921. 4 Compare 42 U .S.C . § 6926 (RCRA) with 42 U .S.C. § 7410 (C lean A ir Act) and 33 U.S.C. § 1342 (FW PC A ) 8 The question before us is whether the regulatory scheme imposed by RCRA, including both federal and state regulation of hazardous wastes, applies to chemical wastes produced by DOE’s production and weapons facilities oper­ ated pursuant to authority provided in the AEA.5 These facilities, which are generally owned by DOE and operated by private contractors, produce special nuclear material and components used in research, development, testing, and production of nuclear weapons.6 Operation of the facilities generates various waste streams, including chemical wastes that are considered to be “hazardous wastes” under EPA criteria and regulations. These wastes are generated by a variety of industrial processes, including metal working, electroplating, chemi­ cal extraction, machining, fabrication, and assembly and cleaning of solvent parts. Our analysis here turns on the two sections of RCRA that deal with regula­ tion of federal facilities and activities: § 6001,42 U.S.C. § 6961, which explic­ itly subjects all federal facilities and activities to state and federal regulation under RCRA; and § 1006(a), 42 U.S.C § 6905(a), which precludes regulation under RCRA of any “activity or substance” subject, inter alia, to the AEA “except to the extent such application [of RCRA] (or regulation) is not inconsis­ tent with the requirements of such Acts.” Section 6001 provides in pertinent part: Each department, agency, and instrumentality of the execu­ tive, legislative, and judicial branches of the Federal Govern­ ment (1) having jurisdiction over any solid waste management 5 The questioo we address here is applicability o f RCRA to nonnuclear wastes generated by D O E’s facilities. The only m aterials that can be regulated under RCRA are “solid w astes” and “hazardous w astes” (which are a subset o f “solid wastes” ). Section 1004(27) o f RCRA, 42 U.S.C. § 6903(27), expressly exem pts from the definition o f “solid w aste” : “ source, special nuclear, o r byproduct m aterial as defined by the Atomic Energy A ct o f 19S4, as am ended.” Thus, RCRA leaves undisturbed DOE’s authority to regulate the disposal o f source, special nuclear, and byproduct wastes, which we understand are for the m ost part handled separately from nonnuclear wastes. DOE has not indicated that its waste stream s include other nuclear m aterial that does not fall within the categories o f source, special nuclear, and byproduct wastes. 6 DOE, as successor to the Atomic Energy C om m ission’s research and developm ent responsibilities, see 42 U.S.C. §§ 5814(c), 5817 (1976) (transfer o f functions to Energy Research and Developm ent A dm inistration); 42 U .S.C. § 7151 (Supp. V 1981) (transfer o f functions from Energy Research and D evelopm ent A dm inistra­ tion to DOE), is authorized by § 31(a) o f the AEA, 42 U.S.C. § 2051(a), to make arrangem ents for the conduct o f research and developm ent activities relating to (1) nuclear processes; (2) the theory and production o f atomic energy, including processes, materials, and devices related to such production; (3) utilization o f special nuclear m aterial and radioactive material for m edical, biological, agricultural, health, or m ilitary purposes; (4) utilization o f special nuclear m aterial, atomic energy, and radioactive m aterial and pro­ cesses entailed in the utilization o r production o f atom ic energy o r such material for all other purposes, including industrial or com m ercial uses, the generation o f usable energy, and the dem onstration o f advances in the com m ercial o r industrial application o f atomic energy; (5) the protection o f health and the promotion o f safety during research and production activities; and (6) the preservation and enhancem ent o f a viable environm ent by developing more efficient methods to m eet the N ation’s energy needs. Id. D OE is further authorized to “produce or to provide for production o f special nuclear m aterial in its own production facilities,” id. § 2061(b), to perform research and developm ent w ork in the m ilitary application of atom ic energy, id. § 2121(a), and to engage in the production o f atomic weapons, id. 9 facility or disposal site, or (2) engaged in any activity resulting, or which may result, in the disposal of solid waste or hazardous waste shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and proce­ dural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief), respecting control and abatement of solid waste or hazardous waste disposal in the same manner, and to the same extent, as any person is subject to such requirements, including the payment of reasonable service charges. Neither the United States, nor any agent, employee, or officer thereof, shall be immune or exempt from any process or sanction of any State or Federal Court with respect to the en­ forcement of any such injunctive relief. This section further provides that the President may exempt any “solid waste management facility”7 of any Executive Branch department, agency, or instru­ mentality from compliance with RCRA requirements “if he determines it to be in the paramount interest of the United States to do so.” Id. Section 6001 was modeled on parallel provisions in the Clean Air Act and the FWPCA, both of which subject federal facilities to the regulatory schemes imposed by those Acts and provide for Presidential exemptions.8 If § 6001 were the only provision dealing with the applicability of RCRA to federal facilities or activities, our analysis would end here. The operation of DOE’s Atomic Energy Act facilities is plainly an “activity resulting . . . in the disposal of hazardous wastes,” and therefore within the explicit waiver of sovereign immunity for federal facilities provided by §6001.9 Indeed, we understand that DOE does not contest the applicability to those facilities of the FWPCA.10 Specific problems that have arisen because of the application of the FWPCA to DOE’s Atomic Energy Act facilities have been dealt with through negotiations between EPA and DOE, resulting in most cases in agreements that govern DOE’s compliance with the FWPCA. 7 R C R A ’s definition o f this term includes system s for collection, separation, recycling, and recovery of solid w astes, system s fo r resource conservation, and facilities fo r the treatm ent o f solid w astes. See 42 U.S.C. § 6903(29). 8 See 42 U .S.C . § 7418 (C lean Air Act); 33 U.S.C. § 1323 (FW PCA), discussed m S. Rep. No. 988, 94th C ong., 2d Sess. 2 4 (1 9 7 6 ). 9 G iven the broad definition o f “solid w a ste m anagem ent facility," D O E’s Atomic Energy Act facilities w ould in m ost cases also be considered “so lid waste m anagem ent facilities;” if wastes w ere disposed on site, D O E w ould be considered to have ju risd ictio n over “disposal sites.” Therefore those facilities would probably also fall w ithin the first category o f federal facilities described in § 6001. 10 The FW PC A does not include a provision com parable to § 1006(a) o f RCRA making the FW PCA subordinate, at least in som e circumstances, to the AEA o r o th er statutes. Rather, the effect o f § 511 (a) o f the FW PC A , 33 U .S.C . § 1371 (a), is to make the FW PCA prevail in the event o f inconsistencies between that Act and o th er law s o r regulations. Section 511(a) provides, in pertinent part, that “ [tjhis chapter [FWPCA] shall not be co n stru ed as . . . lim iting the authority o r functions o f any officer or agency of the U nited States under any law o r regulation not inconsistent with th is chapter.” B ecause the C lean A ir A ct is not generally enforced through a perm it system , DOE has not had relevant experien ce w ith potential inconsistencies b etw een the AEA and that Act. 10 However, unlike the FWPCA, RCRA explicitly addresses, in § 1006(a), its relationship to certain other statutes, including the AEA. Section 1006(a) provides in full text that: Nothing in this chapter shall be construed to apply to (o r to authorize any State, interstate, or local authority to regulate) any activity o r substance which is subject to the Federal Water Pollution Control Act [33 U.S.C. §§ 1251 et seq.], the Safe Drinking Water Act [42 U.S.C. §§ 300f et seq.], the Marine Protection, Research and Sanctuaries Act of 1972 [33 U.S.C. §§ 1401 et seq.], or the Atom ic Energy A ct o f 1954 [42 U.S.C. §§ 2011 et seq .] except to the extent that such application (or regulation) is not inconsistent with the requirements o f such Acts. 42 U.S.C. § 6905(a) (emphasis added). If operation of DOE’s Atomic Energy Act facilities is an “activity . . . subject to . . . the Atomic Energy Act” within the meaning of this section, which we believe it is,11 § 1006(a) by its terms would preclude application of RCRA regulations or requirements “except to the extent. . . not inconsistent with the requirements of [the AEA].” The crux of the question before us is the meaning of that proviso in § 1006(a). DOE contends that this proviso proscribes any application of RCRA regula­ tions and requirements to its Atomic Energy Act facilities, and therefore also proscribes any regulatory authority by EPA or the states over those facilities. The comparison required by the language of the proviso and its context within § 1006(a), according to DOE, is between overlapping regulatory schemes, not between individual regulations or requirements imposed by those schemes. DOE argues that § 1006(a) is intended to make it clear that RCRA’s regulatory scheme would be subordinate to those of other enumerated statutes so as to avoid subjecting the same activity or substance to varying sources of regulation having the potential for conflict. DOE asserts that comparison of the regula­ tory schemes established by the AEA and RCRA reveals three major inconsis­ tencies in the treatment of federal facilities under those Acts: (1) the AEA does not provide for any state role in permitting of federal facilities, while RCRA provides for state permitting programs and enforcement, and allows state requirements to be more stringent than those imposed by federal regulation; 11 It could be argued that the term “activity" as used in § 1006(a) is intended only to include the activity o f handling o r treating solid wastes, w hich arguably is not “ subject to” the AEA. However, we construe “activity” in § 1006(a) consistently w ith the use o f the same term in § 6001, w hich provides that any federal “activity resulting . . . in the disposal o f solid w aste or hazardous waste” is subject to R CRA . (E m phasis added.) As w e note above, w e believe that term clearly includes the operation o f D O E’s A tom ic Energy A ct facilities. 11 (2) the AEA places authority in DOE to determine appropri­ ate standards for waste handling for public health and safety, while RCRA places that authority in EPA and the states;12 (3) the AEA restricts access to and dissemination of restricted data pertinent to the design or construction of nuclear weapons and production and use o f special nuclear material, while RCRA requires that EPA and state officials have access to information on the generation and handling of hazardous wastes and to waste sites, and generally provides for public availability of information. DOE contends that the cumulative effect of these inconsistencies is to exempt from RCRA’s scheme of regulation the operation of DOE’s Atomic Energy Act facilities. EPA accepts the premise that national security and other considerations may require some adjustments in the application of hazardous waste regulations to DOE’s Atomic Energy Act facilities and agrees with DOE’s assertion that continued operation of certain facilities cannot be dependent on permission granted by state officials. EPA disagrees, however, with DOE’s argument that the effect of the “except to the extent. . . not inconsistent” proviso in § 1006(a) is to exempt entirely DOE’s Atomic Energy Act facilities from RCRA. Rather, EPA interprets that proviso to require a case-by-case comparison of RCRA regulations with specific requirements of the AEA. In that regard, EPA argues that regulations or directives governing hazardous waste treatment and dis­ posal that DOE issues under the authority of § 161 (i)(3) would not generally be “requirements o f ’ the AEA, but rather should, for the most part, be considered as incidental to DOE’s statutory mandate to promote the development, use, and control of atomic energy.13EPA interprets “requirements,” as used in § 1006(a), to mean prescriptive directives contained in the statute itself, such as the AEA’s provisions governing restricted data, or particular regulations and or­ ders shown to be necessary to implement DOE’s particular statutory mandate. 12 D O E cites § 161(i)(3) o f the AEA, 4 2 U.S.C. § 2201 (i)(3), as the basis for its authority to prescribe regulations and directives governing the treatm en t and disposal of solid wastes at its facilities. That section, enacted as part o f several general powers granted to the A tom ic Energy C om m ission under the AEA, grants D O E authority to: prescribe such regulations or o rd ers as it may deem necessary . . . (3) to govern any activity authorized pursuant to this chapter, including standards and restrictions governing the design, location, and o p eration o f facilities u sed in the conduct o f such activity, in o rder to protect health and to m inim ize danger to life or p roperty. P ursuant to this authority D O E has issued a n internal order governing chem ical waste disposal practices at its A tom ic E nergy A ct facilities. DOE O rd e r 5480.2 (D ec. 13, 1982). The hazardous waste management procedures established by that order fo llo w , “to the extent practicable," regulations issued by EPA under R CR A , but the o rder states that facilities adm inistered un d er the authority of the AEA are not bound by RCRA requirem ents. 19 EPA p oints out that the primary c o n cern o f C ongress w hen it passed the AEA in 1954 was to develop a schem e for th e prom otion o f atomic energy and protection o f the public from radioactive hazards. The general grant o f au th o rity to regulate health and safety aspects o f atom ic energy facilities should be interpreted in light o f the leg islativ e history o f the A EA , w hich EPA asserts does not suggest that DO E is authorized, much less required, to establish a regime for th e control o f non-radioactive w astes. 12 EPA recognizes that some specific applications of hazardous waste regulations would probably have to yield to regulation by DOE, but believes this conclu­ sion cannot be made on a general, abstract basis, but only with reference to specific AEA activities, and specific aspects of hazardous waste regulation. That review, EPA asserts, should be sufficient to protect DOE’s particular concerns about protection of restricted data and the effect of state regulation and permit requirements. II. Analysis Neither the language nor the legislative history of § 1006(a) necessarily provides a dispositive answer to the question before us. However, reading the language of that provision in light of the structure and purpose of both RCRA and the AEA, we conclude that Congress did not intend that section to provide a categorical exemption from RCRA for DOE’s Atomic Energy Act facilities. Rather, that section is most reasonably read to establish a priority among those statutes in cases in which a particular conflict exists between RCRA and accomplishment by DOE of the congressionally mandated purposes of the AEA. We start with the language of § 1006(a). Although that language might be said to be somewhat ambiguous, the inclusion of the “except to the extent. . . not inconsistent” proviso suggests that Congress contemplated that some as­ pects of RCRA would apply to activities and substances subject to the enumer­ ated statutes.14 DOE interprets that proviso, however, to apply only to privately owned nuclear power facilities licensed by the Nuclear Regulatory Commis­ sion (NRC) under the AEA. DOE argues that, absent that proviso, the exemp­ tion from RCRA for all “activities]... subject to [the AEA]” would encompass the operation of such private nuclear power facilities, and thereby exempt those facilities from state or federal regulation under RCRA — a result DOE argues was clearly not intended by Congress. Thus, DOE contends that inclusion of the proviso was necessary to preserve EPA’s jurisdiction under RCRA over the disposal of nonnuclear chemical wastes by privately owned nuclear power facilities, but Congress did not also intend to provide for implementation and enforcement of RCRA with respect to federal activities “subject to the [AEA].” 14 This reading is logically intended w ith respect to the three statutes listed in that section in addition to the AEA: the FW PC A , the Safe Drinking W ater Act, and the M arine Protection, Research and Sanctuaries Act of 1972. T hose statutes each regulate some aspect o f the dumping o f m aterials, including w aste products, into bodies o f w ater — an area also subject to regulation under RCRA and therefore potentially involving overlapping and inconsistent regulations. It is m ost logical to read the “except to the extent . . . not inconsistent” proviso to m ean, with respect to those statutes, that in the event o f an actual inconsistency betw een the regulations and obligations required by those statutes and by RCRA, the requirem ents o f the enum erated statutes prevail. This reading is also suggested by § 1006(b), 42 U .S.C. § 6905(b), w hich directs the A dm inistrator o f EPA to “ integrate all provisions o f RCRA fo r purposes o f adm inistration and enforce­ m ent and to avoid duplication, to the m aximum extent practicable, w ith the appropriate provisions o f ’ several statutes adm inistered by the EPA, including the FW PCA, the Safe Drinking W ater Act, and the M arine Protection, Research and Sanctuaries Act o f 1972. This section indicates clearly that C ongress contem plated that RCRA w ould apply in some respects to activities and substances subject to those three acts. 13 DOE’s argument would require us to draw a distinction, for the purpose of § 1006(a), between activities of fed era l agencies “subject to” the AEA and activities of p riva te individuals “subject to” the AEA. However, the language of § 1006(a) does not make any such distinction, and no such distinction is suggested in the legislative history of that section. Indeed, DOE’s argument could render the proviso completely superfluous, because nothing in the lan­ guage or legislative history of RCRA would prevent the NRC from making virtually the same argument that DOE makes for categorical exemption from RCRA.15 Thus, although DOE’s interpretation is not entirely implausible, we are not persuaded that it is the correct one, at least in the absence of relevant and clear supporting legislative history. Unfortunately, the legislative history of RCRA is silent with respect to exactly what Congress did intend § 1006(a) to mean. The language that became § 1006(a) was originally included in the House bill, without explanation. See H.R. Rep. No. 1491, 94th Cong., 2d Sess. 53 (1976) (House Report). The House bill did not include a waiver of sovereign immunity for federal facilities comparable to § 6001, but rather included a provision that would have sub­ jected federal agencies to a separate scheme of regulation administered by EPA. See House Report at 24—25,45. The Senate bill, by contrast, adopted the approach used in the FWPCA and the Clean Air Act with respect to federal facilities. Section 4 of the Senate bill added to the existing Solid Waste Disposal Act a new section that would require “[a]ll federal agencies . . . to comply with State and local controls on solid waste and hazardous waste disposal as if they were private citizens. This includes compliance with all substantive and procedural requirements, and specifically any requirements to obtain permits.” S. Rep. No. 988, 94th Cong., 2d Sess. 24 (1976) (Senate Report). The Senate bill also included a definition of hazardous waste, not in the House bill, that specifically exempted “source, special nuclear, and byproduct materials,” and materials subject to permits under § 402 of FWPCA. See Senate Report at 25, 26. The Senate Report notes, with respect to that defini­ tion, that “[r]adioactive material is included in the definition of hazardous waste, except to the extent actually regulated under the [AEA].” Id. at 26. Differences between the House and Senate bills were reconciled without a formal conference, and therefore no conference report or statement of manag­ ers exists to explain the compromise reached. This compromise substituted the Senate provision that subjected federal facilities to regulation under RCRA, including state regulation, and a definition of solid waste that included the Senate’s language excluding source, special nuclear, and byproduct materials. 13 T he N R C , as successor to the licen sin g functions o f the Atomic Energy C om m ission, see 42 U.S.C. § 5 8 4 1 (0 , is g enerally subject to the sam e restrictions, and has m any o f the sam e general pow ers, as DOE, under the term s o f the AEA . F o r example, th e NRC and its licensees are fully subject to the “restricted data” provisio n s o f th e AEA . M oreover, the N R C could conceivably argue that § 161 (t)(3) gives it authority to im pose licen se conditions on private n u c le ar plants to address hazardous waste disposal problem s, and that those co n d itio n s are “requirem ents of* th e AEA that w ould be inconsistent with RCRA, much as DOE has argued. A lthough w e th in k it highly unlikely that the N R C w ould m ake th at argum ent, it would considerably undercu t the in terp retatio n o f § 1006(a) u rg e d by DOE. 14 The compromise also included the House’s language, which became § 1006(a), with respect to the effect of the AEA and other enumerated statutes. The debates on the conference bill do not discuss the for inclusion of that provision, or its intended effect. See, e.g., 122 Cong. Rec. 33817 (Sept. 30, 1976) (re­ marks of Sen. Randolph); id. at 32599 (Sept. 27, 1976) (remarks of Rep. Skubitz). Although he legislative history does not provide specific guidance on the intended effect of § 1006(a), it contains no indication Congress contemplated that some activities of federal agencies would be wholly exempt from federal and state regulation under RCRA. To the contrary, the language used by both the House and Senate consistently is that “all federal agencies” would be subject to regulation of their solid waste disposal practices, either under the separate regulatory scheme set up by the House bill, or under the waiver of sovereign immunity in the Senate bill. See, e.g., House Report at 5, 48-49; Senate Report at 23. Moreover, the legislative history of RCRA contains some indication that Congress intended that the solid waste disposal practices of federal agencies be treated comparably to disposal of pollutants under the FWPCA and the Clean Air Act. See, e.g., Senate Report at 24 (noting that § 223 “parallels section 118 of the Clean Air Act and section 313 of the Federal Water Pollution Control Act”); House Report at 45-47 (discussion of Administrative Conference’s recommendations). We must assume that Congress was fully aware of the scope of those Acts. We note that the Supreme Court’s decision in Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1 (1976), was issued on June 1, 1976, shortly before completion of the Committee reports on the House and Senate bills, and well before adoption of the conference bill in September 1976. That case presented the issue of EPA’s jurisdiction under the FWPCA to regulate the discharge of source, byproduct, and special nuclear material into the environment. Respondents included a private nuclear power generating station licensed by the Atomic Energy Commission, and federal facility operated for the Energy Research and Development Administration (the immediate predecessor to DOE’s authority) to fabricate plutonium into nuclear weapons parts. See 426 U.S. at 4, 5 & n.5. In concluding that the FWPCA did not authorize EPA to regulate discharges of source, byproduct, and special nuclear materials, the Court placed great weight on the legislative history of the FWPCA indicating that Congress understood the AEA’s exclu­ sive jurisdiction to extend only to regulation of those radioactive materials. See 426 U.S. at 17 & n. 14,21-23. If Congress believed that the Court had misinter­ preted the scope of the AEA, or that a different result should obtain with respect to solid waste disposal practices of federal agencies, it could have addressed the issue in the legislative history of RCRA.16 16 In RCRA, Congress did set up a schem e slightly different from that o f the FW PCA in one respect. As noted above, in the event o f an inconsistency the FW PCA by its term s prevails over other federal statutes and regulations. By contrast, § 1006(a) o f RCRA provides that RCRA will yield to the AEA in the event o f an Continued 15 In addition, Congress provided in § 6001 for categorical exemptions from federal and state regulation, if the President determines that such exemption would be “in the paramount interest of the United States.” 42 U.S.C. § 6961. The inclusion of such authority suggests that Congress intended categorical exemptions from RCRA, such as that urged by DOE, to be obtained through a Presidential waiver, rather than through application of § 1006(a).17 Nonetheless, while we cannot construe the language of § 1006(a) to exempt all of DOE’s activities under the AEA from RCRA regulation, that section must be interpreted to exempt some aspects of “activities] . . . subject to” the AEA from regulation under RCRA, i.e., if application of RCRA would be inconsistent with particular “requirements” of the AEA. The scope of the term “requirements,” as used in § 1006(a), is not illuminated by the language or legislative history of RCRA. The commonly understood meaning of the term implies some prescriptive content, i.e., specific directives that require an agency or a person to take or refrain from taking certain actions, to follow certain procedures, or to meet certain standards and regulations. See generally M issis­ sip p i R iver Fuel Corp. v. Slayton, 359 F.2d 106, 119 (8th Cir. 1966). For the most part, the AEA does not impose specific prescriptive requirements in that sense, at least with respect to aspects of activities that might overlap with, or be inconsistent with, regulations, standards, and procedures established pursuant to RCRA. Rather, insofar as we consider it here, the AEA generally provides underlying authority for certain types of activities intended to carry out the purposes of the Act.18 Those purposes focus specifically on the development and use of atomic power for military and civilian applications: It is . . . declared to be the policy of the United States that — (a) the development, use and control of atomic energy shall be directed so as to make the maximum contribution to the general welfare, subject at all times to the paramount objective of mak­ ing the maximum contribution to the common defense and security; and (b) the development, use, and control of atomic energy shall be directed so as to promote world peace, improve the general 16 ( . . . continued) inconsistency. W e do not believe that d istin ctio n is m aterial to o ur analysis here. Those provisions do reflect som ew hat d ifferen t congressional priorities for the tw o statutes when an inconsistency exists; the difference, how ever, does not lend any particular su p p o rt to D O E’s central legal argum ent that the relevant com parison under § 1006(a), for the purpose of determ ining when an inconsistency exists, is betw een entire regulatory schem es, rath er than betw een particular applications o f those schemes. 17 W e note th at § 1006(c) o f RCRA, 42 U .S .C . § 6905(c), w hich was added m 1980 by Pub. L. No. 96-^82, 94 Stat. 2334, specifically vests in the Secretary o f the Interior the exclusive responsibility for im plem enting hazardous w aste regulations w ith respect to coal m ining w astes. Although this section w as added to RCRA by a later-enacted statute, and therefore is o f lim ited value in determ ining the legislative intent of the drafters o f § 1006(a), it dem onstrates that when C ongress intends to carve out a categorical exem ption from RCRA for certain types o f activities, it can do so in c le a r and explicit term s. l i See S. Rep. No. 1699, 83rd Cong , 2d Sess. 1 4 -1 5 ,1 9 , 2 6 (1 9 5 4 ). 16 welfare, increase the standard of living, and strengthen free competition in private enterprise. 42 U.S.C. §2011. One exception to this general lack of prescriptive “requirements” in the AEA is afforded by those provisions of the AEA that establish standards and proce­ dures for identification and handling of “restricted data,” which is defined to include “all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy.” 42 U.S.C. § 2014(y). Subchapter II of the AEA requires that such data be handled pursuant to detailed provisions governing its protection and disclosure. 42 U.S.C. §§ 2161— 2168.19 We believe that these provisions fall within the commonly understood meaning of the term “requirements,” and therefore that particular RCRA provisions or regulations governing access to information concerning the dis­ posal of hazardous wastes or access to wastes sites must yield if they are inconsistent with particular requirements imposed by the AEA with respect to the handling of restricted data.20 We also believe that § 1006(a) would preclude a state from exercising veto power over the establishment or operation of a DOE facility, either by denying the necessary permits or by seeking an injunction in court against continued operation of the facility because of noncompliance with RCRA. Clearly, a state could not refuse to issue a RCRA permit, or request injunctive relief, based on DOE’s noncompliance with an aspect of state or federal RCRA regulation that 19 Pursuant to these provisions, access to restricted data is limited to individuals who have undergone background investigations, and is contingent on a determ ination that perm itting such persons to have access will not endanger the common defense and safety. 42 U.S C. § § 2 163, 2165 We note that sensitive inform ation that does not fall w ithin the category o f “restricted data" may nonetheless be classified as “national security inform ation'’ under Executive O rder 12356, and therefore required to be handled pursuant to the provisions o f that Executive O rder In addition, the Secretary o f Energy has authority under the AEA to prescribe regulations o r issue orders to prohibit the unauthorized dissem ination of certain unclassified inform ation if such dissem ination “could reasonably be expected to have a significant adverse effect on the health o r safety o f the public o r the common defense and security by significantly increasing the likelihood o f (A) illegal production o f nuclear weapons, o r (B) theft, diversion, or sabotage o f nuclear m aterials, equip­ ment, or facilities.’' 42 U.S.C § 2168. It is possible that particular access and disclosure provisions of RCRA may conflict with such restrictions in some instances, in which case we believe the restrictions authorized by the AEA w ould prevail. 20 As EPA points out, however, the possibility o f conflict betw een the restricted data provisions o f the A EA and the access and disclosure provisions o f RCRA does not necessarily mean that DOE can refuse categori­ cally to grant access to its facilities o r to deny inform ation to EPA and state officials responsible for enforcing RCRA. It may well be that not all inform ation about hazardous waste disposal at DOE’s facilities w ould require special protection, or w ould fall within the definition o f restricted data, or w ithin the scope o f “national security inform ation” required to be classified by Executive O rder 12356. In addition, it w ould probably be feasible in many cases to require those officials to obtain appropriate security clearances in order to gain access to d ata necessary to determ ine com pliance with RCRA regulations. We also do not rule out entirely the possibility that some information about the production of nuclear w eapons and m aterials at D OE’s facilities is so sensitive that access must be restricted to D O E personnel, or to DOE and EPA personnel. This level o f detail should be identified and worked out by D OE in cooperation with EPA. W e note that EPA is w orking with o th er federal agencies, including the D epartm ent o f Defense, to ensure that im plem entation o f the RCRA program does not com prom ise sensitive information or the national security, and has w orked w ith DOE to accom m odate national security concerns under the FW PCA. 17 is inconsistent with the requirements of the AEA, within the meaning of § 1006(a). For example, we do not believe a state could refuse to issue a permit based on DOE’s proper refusal under the “restricted data” provisions of the AEA to grant the state access to particular restricted data or to make such data publicly available. In addition, even if a state could establish that DOE had not fully complied with RCRA regulations and standards not superseded by virtue of § 1006(a), i.e., those that are consistent with the AEA, we have serious reservations whether a state could effectively shut down DOE’s operation by denying a permit or by obtaining an injunction to enforce compliance, particularly where alternative, less drastic means of enforcement exist. While the AEA does not in so many words require DOE to operate its Atomic Energy Act facilities, the clear purpose of the statute is to authorize and encourage operation of such facilities, and the authority provided represents a congressional judgment that such activities should be carried out at a federal level. We believe therefore that it may well be “inconsistent with” the AEA itself to permit a state to veto operation of a federal facility authorized under the Act.21 See generally W einberger v. Romero-Barcelo, 456 U.S. 305, 315 n.9 (1982); California v. U nited States, 438 U.S. 645, 668 n.21, 679 (1978); First Iowa Hydro Electric C ooperative v. F ederal P ow er Com m ’n, 328 U.S. 152, 181-82 (1946); Okla­ homa v. G uy F. Atkinson Co., 313 U.S. 508, 534-35 (1941). A state could, nonetheless, include in a permit certain compliance schedules or other condi­ tions intended to bring DOE’s facilities into compliance with RCRA standards or requirements that lie within the scope of § 1006(a), and could seek judicial enforcement of those conditions through means short of an injunction against continued operation. See, e.g., W einberger v. Romero-Barcelo, 456 U.S. 305, 315 n.9 (1982).22 DOE would of course have the opportunity to seek review of 21 W e do not believe, however, that any state regulation under R CR A of D O E’s Atomic Energy Act facilities w ould necessarily be precluded a s “inconsistent.” RCRA clearly provides for a significant state role in the prom ulgation and enforcement o f standards for the treatm ent and disposal o f solid waste, even with respect to federal facilities. See 42 U.S.C. § 6961. A lthough w e believe that serious questions would be raised if a state attem pted to close a DOE facility for failure to comply w ith state perm itting or substantive requirem ents, m uch state regulation co u ld probably be accom m odated consistent w ith D O E’s statutory m andate. W e understand th at DOE and EPA have w orked together and with the states to im plem ent the standards and perm itting requirements set forth in the FW PC A , and w e know o f no persuasive reason why cooperation w ith state authorities with resp ect to hazardous waste disposal under RCRA would not also be possible. 22 Even though the state m ight not be ab le to enforce th e permit (or denial of a perm it) by an injunction against continued operation o f a facility , the permit itself, and the perm itting process, would not be m eaningless. A state (o r private citizen) co u ld , for exam ple, seek declaratory relief that DOE should comply w ith p articu lar R CR A requirem ents or stan d ard s em bodied in a state perm it or required as a prerequisite for o btain in g the perm it. In addition, under Executive O rder 12088, there w ould be an opportunity for internal Executive B ranch resolution of particular disputes. E xecutive O rder 12088 requires the head o f each Executive agency to insure that the ag en cy com plies w ith the “same substantive, procedural, and other requirem ents th at w ould apply to a p riv ate person” under a number o f environm ental statutes, including R CR A , and to cooperate w ith EPA and state, interstate, an d local agencies in the prevention, control, and abatem ent o f environm ental pollution. T h e order directs th at conflicts betw een the EPA and an Executive B ranch agency, o r betw een an Executive Branch agency an d a state, interstate, or local agency, regarding violatio n s o f those environm ental statutes be resolved by the Office o f M anagem ent and Budget, if such co n flicts can n o t be resolved through effo rts o f the EPA. 18 such conditions to determine that they are reasonably related to bona fide health and safety objectives and not designed to force closure of the facility. DOE argues that the AEA does not provide for any state role in regulation of federal facilities, citing in particular the 1965 amendments to § 271 of the Act, 42 U.S.C. § 2018, that clarified Congress’ intent that the states could not regulate “any activities of the [Atomic Energy] Commission.” We agree with DOE that, prior to enactment of RCRA, federal facilities operated pursuant to the AEA were immune from state regulation of waste disposal practices, because of the lack of any clear waiver of sovereign immunity in the AEA or any other statute that would allow such regulation. The effect of the 1965 amendments to § 271 of the AEA, however, is largely irrelevant to our analysis here. Those amendments were intended explicitly to clarify an ambiguity in the extent to which the AEA waived sovereign immunity over regulation of the transmission and generation of electricity by federal facilities. The legislative history recited by DOE in support of its argument reflects that this was Congress’ particular concern; that history reflects further that Congress in­ tended to make clear that the federal facilities at issue stood on the same footing as all other federal agencies. See, e.g., I l l Cong. Rec. 18702 (1965) (remarks of Rep. Hosmer); id. at 19821 (remarks of Sen. Pastore). At that time, however, no federal facilities were subject to state regulation of hazardous waste disposal practices. Therefore, our analysis here must focus on the effect of the subsequent waiver of sovereign immunity in § 6001 of RCRA and the exception to that waiver carved out by § 1006(a) of that statute. In that regard, we believe that the waiver of sovereign immunity in § 6001 is suffi­ ciently “clear and unambiguous,” see Hancock v. Train, 426 U.S. 167, 179 (1976), to overcome the general principle that federal facilities and activities are immune from regulation by the states. Although § 1006(a) creates some ambiguity with respect to application of that waiver to “activit[ies]. . . subject to . . . the [AEA],” we do not believe that ambiguity undercuts the clarity or effectiveness of the waiver contained in § 6001.23 Thus, we concur with EPA’s conclusion that the thrust of § 1006(a) of RCRA is not to exempt completely DOE’s Atomic Energy Act facilities from 23 W e Dote that the issue w hether states could regulate w aste disposal practices o f federal facilities under the AEA prior to RCRA is different from the issue w hether states could then regulate w aste disposal by privately owned facilities licensed under the AEA. The first issue is one o f sovereign im m unity — w hether C ongress has clearly and explicitly authorized the states to regulate the federal governm ent in a particular aspect o f its activities. The second issue is one o f preem ption — w hether Congress has, in the exercise o f its constitutional authority, preem pted state regulation o f private activities. Thus, even prior to RCRA, the states could regulate disposal o f nonnuclear w astes by private licensees, because the AEA did not preem pt such regulation. See, e.g., Pacific Gas and Electric Co. v. State Energy Resources Conservation & Development Comm ’n, 461 U.S. 190 (1983); Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 1 6 -1 7 & n.14 (1976); Illinois v. Kerr-McGee Corp., 677 F.2d 571, 580 (7th C ir. 1982); Northern States Power Co. v. State o f Minnesota, 447 F.2d 1143, 1149-50 (8th Cir. 1971), a ffd , 405 U.S. 1035 (1972); 42 U.S.C. | 202 l(k ) (“ (n]othing in this section authorizing lim ited state agreem ents for regulation o f n uclear m aterial shall be construed to affect the authority o f any State o r local agency to regulate activities for purposes other than protection against radiation hazards”). B ecause neither the AEA nor any other statute prior to R CR A clearly w aived sovereign im m unity, how ever, states could not then sim ilarly regulate hazardous w aste disposal practices o f federal facilities. 19 state and federal regulation of hazardous waste disposal, but rather to avoid inconsistencies between RCRA and the unique national security and health problems created by operation of nuclear facilities under the AEA. To the extent that operation of those facilities is comparable to operation of other manufacturing and industrial facilities, Congress intended that they be subject to the standards and requirements imposed by RCRA on all other federal government facilities, and enforced by EPA and the states. To the extent there are actual inconsistencies, however, the AEA would control; this feature of the statutory scheme should be responsive to DOE’s particular and clearly legiti­ mate concerns about the protection of sensitive information and the possibility of state vetoes over operation of its facilities, while also meeting EPA’s concern that RCRA regulations apply, to the extent possible, uniformly through­ out the federal government.24 DOE argues in addition, however, that its regulations and directives under § 161(i)(3) of the AEA governing the disposal of nonnuclear wastes also constitute “requirements” of the AEA, considered in the context of the purpose and scope of DOE’s authority under the AEA. DOE contends that this authority “necessarily and essentially pertains” to accomplishment by DOE of the pur­ poses of the AEA, and is “an essential ingredient of the scheme of the [AEA].” Under this analysis, DOE’s regulations or directives governing disposal of nonnuclear wastes would control, at least to the extent they are inconsistent with state or federal regulations and requirements under RCRA. The logical result of this argument is that DOE could totally exempt its Atomic Energy Act facilities from RCRA regulation by prescribing regulations or directives that differ somewhat from otherwise applicable RCRA regulations and standards. We believe that this argument stretches the language and purpose of § 161(i)(3) beyond that intended by Congress when it enacted the AEA.25 It is highly 24 I f D O E ’s specific concern cannot b e m et adequately under this scheme, it may obtain a Presidential w aiver for p articu lar facilities, or for all its Atomic Energy Act facilities, pursuant to § 6 0 0 1 , 42 U.S.C. §6961. 25 W e do not suggest that, in the absence o f RCRA, D O E could not use the authority provided by § 161(i)(3) to regulate the disposal o f nonnuclear w astes at its A tom ic Energy Act facilities. C ertainly the language of that p rovision, giving D OE the authority “ to prescribe . . standards and restrictions governing the design, location, and operation o f facilities used in the conduct o f such activity, in order to protect health and to m inim ize dan g er to life o r property,” 42 U .S.C . § 2201 (i)(3), is broad enough to encom pass such regulation. T he g ran t o f discretionary authority u n d e r that section to prescribe such regulations, how ever, does not com pel the conclusion that such regulations would be requirem ents o f the AEA. Section 161(i)(3) w as given a very narro w interpretation in Reynolds v. United States, 286 F.2d 433, 438 (9th C ir. 1960), a case involving criminal prosecution o f an individual for trespass in a 390,000 square mile area surrounding the Eniw etok Proving G rounds (used for nuclear bom b testing), which had been designated as a clo sed area by the A tom ic Energy C om m ission on the basis o f authority provided in § 161 (i)(3). Based on its reading o f the legislative history o f § 161(i)(3), the court concluded that the authority provided by that section applies o nly to activities of private industry licensed by the A EC, and not “to the Com m ission’s own activ ities.” 286 F.2d at 43 8 -3 9 . We b eliev e the co u rt’s reading o f that legislative history was strained in reaching the result that an individual c o u ld not be subject to serious crim inal penalties for violating a regulation th at arguably exceeded the C om m ission’s authority. The logic o f the court’s reading o f § 161 (i)(3) is that th e A tom ic E nergy Commission — and now DOE — would have no authority w hatsoever to take actions to protect the health and safety o f its workers o r o f the public from nonnuclear hazards created by its ow n activ ities. W e do not believe Congress intended that result. 20 unlikely that Congress even considered possible problems caused by the dis­ posal of nonnuclear wastes when it enacted the AEA in 1954. Indeed, the dimensions of the nation’s hazardous waste problem were not generally ac­ knowledged until more than a decade after enactment of the AEA. See gener­ ally Senate Report, supra, at 6; H.R. Rep. No. 899, 89th Cong., 1st Sess. 7-9 (1965) (discussing Solid Waste Disposal Act of 1965, Pub. L. No. 89-272, 79 Stat. 992). Rather, the focus of the AEA, inasmuch as it deals with disposal problems, is with regulation of nuclear wastes generated by atomic facilities. See Pacific G as and E lectric Co. v. State Energy Resources Conservation & D evelopm ent Com m ’n, 461 U.S. 190 (1983); Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 16-17 & n.14 (1976); Northern States P ow er Co. v. Minnesota, 447 F.2d 1143, 1149-50 (8th Cir. 1971), a f f d, 405 U.S. 1035 (1972). There is no suggestion in the AEA or its legislative history that § 161(i)(3) was intended to require DOE to establish a comprehensive regime for the control of nonnuclear wastes, or that Congress considered such authority to be necessary to accomplishment of the purposes of the AEA. That section is, rather, most reasonably interpreted as a general grant of discretion­ ary authority to DOE to make whatever incidental regulations it deems neces­ sary to insure that its facilities are operated safely and with minimal risk to health, life, and property. See generally Bram er v. United States, 412 F. Supp. 569,575, 577 (C.D. Cal.), a ffd , 595 F.2d 1141 (9th Cir. 1976) (interpreting 42 U.S.C. § 2051); Blaber v. United States, 332 F.2d 629, 631 (2d Cir. 1964) (interpreting 42 U.S.C. § 2051). By contrast, RCRA is clearly and explicitly intended to provide a compre­ hensive scheme for regulation of the disposal of nonnuclear wastes by private entities and by the federal government. See Senate Report, supra, at 2-7; House Report, supra, at 2-5. In light of the clear intent and the comprehensive­ ness of RCRA, we are unwilling to interpret § 1006(a) to mean that, merely by exercising its discretionary authority under the AEA with respect to nonnuclear wastes, DOE can exempt itself from RCRA’s regulatory scheme. We recognize nonetheless that there may be particular operational needs or problems generated by the unique requirements of DOE’s nuclear operations that in some cases will require some modification in, or exemption from, particular substantive standards imposed by the EPA or the states pursuant to RCRA. For example, it may be that inclusion of small amounts of nuclear wastes in a chemical waste stream would require some modification in other­ wise applicable RCRA standards or regulations,26 or that certain aspects of industrial processes that are unique to the fabrication of nuclear weapons materials and components require different handling of solid wastes generated 26 The inclusion o f sm all amounts o f nuclear m aterials in such stream s w ould not necessarily prohibit EPA from regulating those streams m erely because RCRA does not apply to certain types o f nuclear m aterials. That such wastes are commingled with nonnuclear wastes suggests that in many cases the am ount of nuclear waste would not be large enough to require special handling, and therefore there would be no reason for exclusive D OE control over its handling. We believe these types o f problems could be addressed by EPA and DOE in their discussions to im plem ent this opinion. 21 by those processes.27 Those situations will have to be identified and handled by DOE and EPA on a cooperative basis, in accordance with the interpretation of § 1006(a) we have outlined here. Conclusion Implementation of this opinion will require DOE and EPA to discuss in detail the impact of RCRA regulations on operation of DOE’s Atomic Energy Act facilities, and to determine how best to accommodate the purposes of the AEA with the specific requirements of RCRA. We recognize that the advice given here is general, and may not resolve many of the particular questions that will arise in the course of those discussions. We note, however, that EPA has conducted similar discussions with DOE in order to implement provisions of the FWPCA, and has engaged in such discussions with other federal agencies, including the Department of Defense, to implement the requirements of RCRA and the FWPCA. We suggest that those discussions might provide a framework for addressing the applicability of RCRA to DOE’s Atomic Energy Act facili­ ties. We will, of course, be available to provide additional legal analysis, should that prove necessary. Theodore B. O lso n Assistant Attorney General Office o f Legal Counsel 27 T he internal D O E o rd er prescribing hazardous waste m anagem ent practices, see DO E O rder 5480.2 (Dec. 13 ,1 9 8 2 ), appears to contem plate this ty p e o f problem. U n d er that o rder, full com pliance w ith the prescribed procedures (m ost o f w hich are consistent w ith RCRA) m ay be excused “due to unique characteristics o f the sites an d /o r facilities . . . o r due to unrealistically high costs com pared to the risks involved.” If full com pliance cannot be achieved because o f high costs, “alternative methods o f handling waste that will provide com parable levels o f safety and environm ental protection at reduced costs” m ust be taken. A lthough w e d o not suggest that ev ery situation that m ight w arrant relaxation o f D O E’s internal order w ould co n stitu te an inconsistency for purposes o f § 1006(a), those types o f situations could possibly provide a basis for noncom pliance with particular RCRA requirem ents, if the particular characteristics or high costs involved arise because o f the unique nature o f the nuclear processing operations. 22

Write a legal research memo on the following topic.

Entitlement to Reservist Differential Pay Under Pre-Amendment Version of 5 U.S.C. § 5538 Under the pre-amendment version of 5 U.S.C. § 5538, covered employees may receive reservist differential pay not only for pay periods that occur when they are serving on active duty, but also for those pay periods that fall within the additional period in which they have re-employment rights following the completion of that duty. June 28, 2010 MEMORANDUM OPINION FOR THE GENERAL COUNSEL OFFICE OF PERSONNEL MANAGEMENT You have asked for our views on how to interpret the pre-amendment version of 5 U.S.C. § 5538, a law that provides a monetary payment to qualifying federal employees who are called to active duty from the military reserves. 1 Under section 5538, reservists who take a leave of absence from federal civilian employment “in order to perform active duty in the uniformed services pursuant to a call or order to active duty” under certain statutory authorities are entitled to additional compensation for pay periods in which their military pay would be less than their basic civilian pay. Section 5538 thus ensures that such reservists do not experience a pay cut because of a call to active duty. You have asked whether the pay periods during which eligible federal employees are entitled to receive this additional compensation, commonly known as “reservist differential pay,” include only those that occur within the period of active duty, or whether they also include those pay periods that fall within the additional period of time, specified by 38 U.S.C. § 4312, in which a In addition to the views we received from the Office of Personnel Management, we also solicited and received the views of the Department of Defense (“DoD”). See Memorandum for David Barron, Acting Assistant Attorney General, Office of Legal Counsel, from Elaine D. Kaplan, General Counsel, Office of Personnel Management (“OPM”), Re: Request for OLC Opinion Regarding Entitlement to Payment of the Reservist Differential Under 5 U.S.C. § 5538 During Periods of Time After Active Duty Ends, and During Which an Employee Is Entitled to Reemployment Rights Under the Uniformed Services Employment and Reemployment Rights Act (Nov. 19, 2009); E-mail for Jeannie Rhee, Deputy Assistant Attorney General, Office of Legal Counsel, from James Smyser, Associate Deputy General Counsel, Department of Defense, Re: FW: Opinion Request from OPM on interpretation of 5 USC 5538 (Reservist Differential Pay) (Feb. 4, 2010) (“DoD E-mail”). 1 193 34 Op. O.L.C. 193 (2010) returning reservist is generally entitled to report for re-employment at his or her civilian workplace. We conclude that under the pre-amendment statute, covered employees may receive reservist differential pay not only for pay periods that occur when they are serving on active duty, but also for those pay periods that fall within the additional period in which they have re-employment rights following the completion of that duty. 5 U.S.C. § 5538(b)(2)(B). 2 I. First enacted on March 11, 2009 (see Omnibus Appropriations Act, 2009, Pub. L. No. 111-8, div. D, § 751(a), 123 Stat. 524, 693), 5 U.S.C. § 5538 contains three provisions relevant to your question. The first, subsection (a), describes the requirements a federal employee must meet to be eligible for reservist differential pay and sets forth the method for calculating the amount: (a) An employee who is absent from a position of employment with the Federal Government in order to perform active duty in the uniformed services pursuant to a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 103 shall be entitled, while serving on active duty, to receive, for each pay period described in subsection (b), an amount equal to the amount by which— In December 2009, Congress amended section 5538 in a manner that OPM and DoD believe makes clear “that the reservist differential is not payable for periods following completion of active duty.” OPM, Reservist Differential, Guidance, Qualifying Periods, http://www.opm.gov/reservist/guidance/qualifying.asp (last visited ca. 2010); see also Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, div. C, § 745(a), 123 Stat. 3034, 3219 (2009). We express no opinion on that interpretation, although we note that section 5538 gives OPM, “in consultation with [the] Secretary of Defense,” the discretion to “prescribe any regulations necessary to carry out the preceding provisions of this section.” 5 U.S.C. § 5538(d). 3 As an OPM guidance document explains, section 101(a)(13)(B) references “specific provisions in title 10 of the United States Code” which function as “authorities for certain military contingency operations for which a reservist (i.e., member of a Reserve component or the National Guard) may be called or ordered to active duty.” OPM, Reservist Differential, Guidance, Appendix D, http://www.opm.gov/reservist/guidance/appendixd. asp (last visited ca. 2010). 2 194 Entitlement to Reservist Differential Pay (1) the amount of basic pay which would otherwise have been payable to such employee for such pay period if such employee’s civilian employment with the Government had not been interrupted by that service, exceeds (if at all) (2) the amount of pay and allowances which (as determined under subsection (d))— (A) is payable to such employee for that service; and (B) is allocable to such pay period. 5 U.S.C. § 5538(a) (emphasis added). Second, subsection (b)(1) describes the “pay period[s]” referenced in subsection (a) during which an eligible employee is entitled to receive reservist differential payments: (b) (1) Amounts under this section shall be payable with respect to each pay period (which would otherwise apply if the employee’s civilian employment had not been interrupted)— (A) during which such employee is entitled to reemployment rights under chapter 43 of title 38 with respect to the position from which such employee is absent (as referred to in subsection (a)); and (B) for which such employee does not otherwise receive basic pay (including by taking any annual, military, or other paid leave) to which such employee is entitled by virtue of such employee’s civilian employment with the Government. 5 U.S.C. § 5538(b)(1). Third, as originally enacted, subsection (b) also contained an additional provision, paragraph (2), that provided a further gloss on the period during which an employee would be “entitled to reemployment rights under chapter 43 of title 38”: (2) For purposes of this section, the period during which an employee is entitled to reemployment rights under chapter 43 of title 38— 195 34 Op. O.L.C. 193 (2010) (A) shall be determined disregarding the provisions of section 4312(d) of title 38; 4 and (B) shall include any period of time specified in section 4312(e) of title 38 within which an employee may report or apply for employment or reemployment following completion of service on active duty to which called or ordered as described in subsection (a). 5 U.S.C. § 5538(b)(2) (emphasis added). Section 5538(b)’s references to “chapter 43 of title 38” are to the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335 (2006 & West Supp. 2010). 5 Among other things, USERRA broadly requires an employer to promptly reemploy a returning reservist to “the position for which qualified that he or she would have attained if continuously employed,” or, in the case of active service periods lasting 91 days or more, “a position of like seniority, status, and pay.” 5 C.F.R. § 353.207 (2009); see 38 U.S.C. § 4312. To take advantage of this entitlement, an employee must timely report for work or submit an application for reemployment “upon the completion of a period of service in the uniformed services” and by a statutorily prescribed deadline. 38 U.S.C. § 4312(e)(1). Persons “whose period of service in the uniformed services was less than 31 days” must report to their employer on the first work day following completion of their service, a period allowing for safe travel back to their residence, and an Section 4312(d) excuses employers from their reemployment obligations when they are able to demonstrate: (1) “the employer’s circumstances have so changed as to make such reemployment impossible or unreasonable”; (2) “such employment would impose an undue hardship on the employer”; or (3) the reservist was employed for “a brief, nonrecurrent period” prior to active service and “there is no reasonable expectation that such employment will continue indefinitely or for a significant period.” 38 U.S.C. § 4312(d)(1). 5 USERRA’s general purposes are: “(1) to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service; (2) to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of such service; and (3) to prohibit discrimination against persons because of their service in the uniformed services.” 38 U.S.C. § 4301(a) (2006). 4 196 Entitlement to Reservist Differential Pay additional “eight hours.” Id. § 4312(e)(1)(A)(i). Those who serve for “more than 30 days but less than 181 days” must submit an “application for reemployment . . . not later than 14 days after the completion” of their service. Id. § 4312(e)(1)(C). And those who serve for “more than 180 days” must submit an application for reemployment “not later than 90 days after the completion” of their service. Id. § 4312(e)(1)(D). 6 II. Your question regarding the duration of a federal employee’s entitlement to “reservist differential pay” arises because two provisions of the original statutory text could be read to give conflicting indications as to how long that entitlement was intended to last. On the one hand, section 5538(a) declared that eligible employees are “entitled, while serving on active duty, to receive, for each pay period described in subsection (b),” reservist differential pay—a provision that, at least in isolation, seemed to indicate that employees would be entitled to receive such pay only “while serving on active duty.” 5 U.S.C. § 5538(a) (emphasis added). On the other hand, section 5538(b)—which described the pay periods during which an employee is entitled to receive reservist differential pay— provided that the “period . . . during which such employee is entitled to” differential pay “shall include any period of time . . . within which an employee may report or apply for employment or reemployment following completion of service on active duty.” Id. § 5538(b)(1)(A) & (2)(B) (emphasis added). In contrast to section 5538(a), section 5538(b)(2)(B) appeared to contemplate that an eligible employee could receive differential pay during periods that “follow[] completion of service on active duty.” In the time since we received your opinion request, Congress has amended section 5538 by, in effect, deleting subsection (b)(2). See Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, div. C, 6 These deadlines are extended in the case of “[a] person who is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service in the uniformed services.” 38 U.S.C. § 4312(e)(2)(A). Such a person may report or apply for reemployment after recovering from the illness or injury. This recovery period is limited to two years, except where reporting for reemployment within that period is made impossible or unreasonable by circumstances beyond the person’s control. Id. 197 34 Op. O.L.C. 193 (2010) § 745(a), 123 Stat. 3034, 3219 (2009) (deleting the original subsection (b) and inserting in its place a new subsection (b) that contains all of the language of former subsection (b)(1) and none of the language of former subsection (b)(2)). The conference report termed this change a “technical correction” to section 5538, but did not otherwise discuss the intended purpose or import of this amendment. See H.R. Rep. No. 111366, at 946 (2009) (Conf. Rep.). As we understand it, OPM and DoD agree that this amendment “clarif[ies] that the reservist differential is not payable for periods following completion of active duty.” OPM, Reservist Differential, Guidance, Qualifying Periods, http://www.opm. gov/reservist/guidance/qualifying.asp (last visited ca. 2010). However, your opinion request remains outstanding, in light of continued disagreement regarding the proper interpretation of the original statute, as it applies to those who served on active duty and were entitled to reemployment rights during the pre-amendment period. A. The principle that “[a] statute should be construed so that effect is given to all its provisions so that no part will be inoperative or superfluous, void or insignificant” is “one of the most basic interpretive canons.” Corley v. United States, 129 S. Ct. 1558, 1566 (2009). See also, e.g., Alaska Dep’t of Envtl. Conserv. v. EPA, 540 U.S. 461, 489 n.13 (2004) (“It is . . . a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”) (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation marks omitted)); Market Co. v. Hoffman, 101 U.S. 112, 115–16 (1879) (“a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant”); Carcieri v. Salazar, 129 S. Ct. 1058, 1066 (2009) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (“we are obliged to give effect, if possible, to every word Congress used”). When presented with provisions that appear to be in conflict, we must therefore endeavor to reconcile those provisions by adopting a construction that refrains from treating any provision as void or meaningless, in accordance with the maxim that “[t]he cardinal principle of statutory construction is to save and not to destroy.” United States v. Menasche, 348 U.S. 528, 538–39 198 Entitlement to Reservist Differential Pay (1955); see also Moskal v. United States, 498 U.S. 103, 109 (1990) (rejecting proposed construction that would fail to give meaning to certain statutory language because such a reading would “violate[] the established principle that a court should give effect, if possible, to every clause and word of a statute”) (quotation marks omitted); Hoffman, 101 U.S. at 116 (“every part of a statute must be construed in connection with the whole, so as to make all the parts harmonize, if possible, and give meaning to each”); 2A Norman J. Singer & J.D. Shamble Singer, Sutherland Statutes and Statutory Construction § 46.6 (7th ed. 2007) (“Singer”) (“No clause, sentence or word shall be construed as superfluous, void or insignificant if a construction can be found which will give force to and preserve all the words of the statute.”). It is clearly possible to read subsection (a)’s “while serving on active duty” provision, at least in isolation, to permit employees to receive reservist differential pay only for pay periods that occur within the period of active duty. However, adopting this reading of subsection (a) would deprive a substantial part of subsection (b) of meaning, since the latter provision states that such pay “shall by payable with respect to each pay period . . . during which such employee is entitled to re-employment rights under chapter 43 of title 38” (5 U.S.C. § 5538(b)(1)), a category that is then expressly defined to include the time “following completion of service on active duty” (5 U.S.C. § 5538(b)(2)(B) (emphasis added)). Reading subsection (a) as controlling the meaning of section 5538 in this way thus would effectively read subsection (b)(2)(B) out of the statute and produce a reading that contradicts its plain language—a result that would be difficult to square with the statutory construction principles we have just described. See 2A Singer § 46:6 (“A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error.”); Menasche, 348 U.S. at 538–39 (“It is our duty to give effect, if possible, to every clause and word of a statute, rather than to emasculate an entire section”) (quotation marks omitted). Reading subsection (a) in this manner would also introduce an internal tension in subsection (a) itself: subsection (a) states that eligible employees “shall be entitled” to receive reservist differential pay “for each pay period described in subsection (b),” but on this interpretation of section 5538, such employees in 199 34 Op. O.L.C. 193 (2010) fact would not be entitled to receive differential pay for each pay period described in subsection (b)—they would not receive such pay for the periods “following completion of service on active duty” described in subsection (b)(2)(B). In view of these difficulties, we believe subsection (a) should not be read as restricting reservist differential pay to those periods during which a reservist is actually serving on active duty if another plausible reading of the statute is available. And here, we think such a reading is available: it is also possible to read subsection (a)’s phrase “entitled, while serving on active duty, to receive” reservist differential pay to mean that an employee’s entitlement to receive such pay accrues and vests during his or her service on active duty. On this reading, the employee accrues the “entitle[ment]” to receive reservist differential pay during “each pay period described in subsection (b)” by virtue of service on active duty. However, the duration of the entitlement that would thereby vest, on this reading, would not be limited solely to the term of active service, but would also encompass “each pay period described in subsection (b),” including those periods that “follow[] completion of service on active duty.” This reading harmonizes subsection (a) and subsection (b)(2)(B), avoiding the apparent conflict that would arise from the narrower reading of subsection (a) discussed above. In addition to avoiding any apparent conflict with subsection (b), this reading gives distinct meaning to each of the references in subsection (a) to “active duty.” The first part of subsection (a) states that the entitlement to reservist differential pay applies to employees who are absent from federal employment “in order to perform active duty in the uniformed services pursuant to a call or order to active duty” under certain specified statutory provisions. This language makes clear that an employee qualifies for reservist differential pay only if he or she is absent for the purpose of serving on active duty, as opposed to other forms of service, and only if that service on active duty is pursuant to a call or order under one of the referenced statutory provisions. 7 Subsection (a) then refers to “active Reemployment rights under chapter 43 apply to persons “whose absence from a position of employment is necessitated by reason of service in the uniformed services.” 38 U.S.C. § 4312(a). The term “service in the uniformed services,” in turn, is defined as “the performance of duty on a voluntary or involuntary basis in a uniformed service under 7 200 Entitlement to Reservist Differential Pay duty” a second time, in the provision at issue here, stating that an eligible employee “shall be entitled, while serving on active duty, to receive” reservist differential pay. On the reading proposed here, this second reference to “active duty” clarifies that the right to reservist pay accrues and vests only if the employee actually performs active duty. It is true that the word “while” suggests a bounded duration, circumscribed by the time period or event to which it refers, rather than an open-ended period initiated by that time period or event. See Webster’s Third New International Dictionary 2604 (1993) (defining “while,” when used as a conjunction in similar contexts, to mean “during the time that,” “until the end of the time that,” or “during which time”). And on our reading, the period in which an employee would receive reservist differential pay would not be confined to the bounded duration of the employee’s period of active service. However, our reading is nonetheless consistent with understanding the word “while” to connote a circumscribed duration, because the employee’s receipt of reservist differential pay would be defined, in two distinct but related respects, by the period of time that the employee spends in active service. First, during each day of active duty—i.e., “while serving on active duty”—an eligible employee is entitled to reservist differential pay that corresponds to that day. Second, and simultaneously, each day of active duty counts towards the total length of service that determines, in turn, the period following the completion of active duty during which the employee is entitled to reemployment rights and, consequently, reservist differential pay. See 5 U.S.C. § 5538(b)(2)(B). We therefore do not believe that section 5538 presents the rare circumstance in which it is necessary to resort to the “elimination of words” in order to “give [an] act meaning, effect or intelligibility” or “avoid inconsistencies and to make the provisions of the act harmonize.” 2A Singer § 47:37. As we have explained above, consistent with the view expressed by OPM, we believe there is a reading of the statute that is permissible and gives meaning to all its provisions. As such, we do not face a circumcompetent authority and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, a period for which a person is absent . . . for the purpose of an examination to determine the fitness of the person to perform any such duty, and a period for which a person is absent . . . for the purpose of performing funeral honors duty.” 38 U.S.C. § 4303(13). 201 34 Op. O.L.C. 193 (2010) stance comparable to that at issue in Chickasaw Nation v. United States, 534 U.S. 84 (2001), where the Supreme Court adopted a construction of a federal statute that concededly “deprive[d] the words ‘chapter 35’ of any effect,” id. at 93. The unusual circumstances of that case compelled the Court to conclude, after applying ordinary tools of statutory construction, that “no other reasonable reading of the statute” was available. Id. at 89. Moreover, the language the Court deprived of meaning in Chicksaw Nation appeared in an illustrative parenthetical. See id. at 90 (emphasizing that the words “chapter 35” appeared in a parenthetical phrase and that “[t]he use of parentheses emphasizes the fact that that which is within is meant simply to be illustrative, hence redundant”); id. at 89–90 (finding that “the language outside the parenthetical is unambiguous,” and “too strong to bend as the Tribes would wish—i.e., so that it gives the chapter 35 reference independent operative effect,” without “seriously rewriting the language of the rest of the statute” or resorting to a construction “far too convoluted to believe Congress intended it”); id. at 91 (noting that the legislative history of the provision at issue “on balance supports our conclusion”). Here, in contrast, the language that would be disregarded if we did not adopt our reading is not a single example in an arguably illustrative parenthetical, but rather an entire subsection—one that employs mandatory language and thus suggests on its own terms that it was intended to have substantive meaning. See 5 U.S.C. § 5538(b)(2) (“the period during which an employee is entitled to reemployment rights under chapter 43 of title 38 . . . (B) shall include any period of time specified in section 4312(e) of title 38”). There is nothing in the text to indicate that Congress intended subsection (b)(2)(B) to be merely illustrative, or otherwise ineffectual. We therefore do not believe that the provision at issue here is one that may be treated as void, in contravention of the ordinary rule that no portion of a statute should be treated as “inoperative or superfluous, void or insignificant.” Corley, 129 S. Ct. at 1566. We also do not think that the inclusion of subsection (b)(2)(B) can be viewed as “the result of obvious mistake or error.” See 2A Singer § 46:6. So far as we have been able to discern, all but one of the precursors to the bill originally enacted as section 5538, dating back as far as 2001, included subsection (b)(2)(B), cast in similar or even identical terms. See, e.g., H.R. 3337, 107th Cong. (introduced Nov. 16, 2001); S. 1818, 107th Cong. (introduced Dec. 13, 2001). The only exception of which we 202 Entitlement to Reservist Differential Pay are aware was H.R. 4247, introduced in 2007. It too would have provided for reservist differential pay following the completion of active service, even though, unlike subsection (b)(2)(B), it did not expressly reference USERRA’s reemployment rights provisions to define the scope of that coverage. 8 Moreover, we know of no precedent for treating such a lengthy statutory phrase as the product of mere inadvertence or error. We would be particularly reluctant to accord such treatment to subsection (b)(2)(B) because the text of section 5538 suggests that the drafters viewed subsections (a) and (b)—including subsection (b)(2)(B)—as parts of an integrated whole that defined the benefit that Congress intended to confer. Subsection (a) expressly cross-references subsection (b) in describing the period for which employees will be entitled to receive reservist differential pay; subsection (b)(2)(B) clarifies that the period “during which such employee is entitled to reemployment rights under chapter 43 of title 38,” as that phrase is used in subsection (b)(1)(A), “shall include any period of time” “within which an employee may report or apply for employment or reemployment rights following completion of service on active duty”; and subsection (b)(2)(B) expressly refers back to subsection (a)’s “call or order to active duty” requirement. In view of these circumstances, we are not persuaded that the inclusion of subsection (b)(2)(B) could be reasonably viewed as the result of inadvertence. The better course, we think, is to accord meaning to that subsection, in keeping with its plain terms. We are aware of the argument that the statute should not be so construed because it is doubtful that Congress would have intended that “reservist differential pay would continue during periods in which the [covered employee] is not serving on active duty and not receiving military pay,” particularly given that subsection (a) of the statute defines the amount of the reservist differential as an “amount equal to the amount by which [a covered employee’s] basic pay . . . exceeds [the covered employee’s] military pay and allowances.” DoD E-mail (emphasis removed) (citing 5 U.S.C. § 5538(a)). We acknowledge that the statute does not 8 See H.R. 4247, 110th Cong. § 4(b)(1) (introduced Nov. 15, 2007) (providing for reservist differential pay “(A) while the employee serves on active duty for a period of more than 30 days; (B) while the employee is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of such active duty; or (C) during the 14-day period beginning at the end of such active duty or the end of the period referred to in subparagraph (B)”). 203 34 Op. O.L.C. 193 (2010) expressly contemplate that the amount of military pay and allowances allocable to a particular pay period might be zero: subsection (a) refers to “the amount of pay and allowances” allocable to a given pay period, not, for example, “the amount, if any, of pay and allowances” allocable to a given period. See 5 U.S.C. § 5538(a)(2); cf. id. § 5538(a)(1) (referring to the amount, “if at all,” by which basic pay exceeds military pay for a given pay period). But reservist differential pay may still be calculated under subsection (a) even if military pay and allowances are zero. And this argument with respect to subsection (a) does not indicate any alternate way of giving meaning to subsection (b)(2)(B)—the difficulty that, as discussed above, necessitates our approach. The interpretation set forth above, moreover, is consistent with the overall purpose of the statutory scheme—to prevent federal employees from suffering a reduction in pay and thereby incurring a financial burden in the performance of active duty pursuant to one of the referenced statutory provisions. See 5 U.S.C. § 5538(a); cf. 149 Cong. Rec. 5764 (2003) (statement of Sen. Durbin, introducing a prior version of section 5538) (“I would like to discuss the financial burden faced by many of the men and women who serve in the military Reserves or National Guard and who are forced to take unpaid leave from their jobs when called to active duty . . . . It is unfair to ask the men and women who have volunteered to serve their country . . . to also face a financial strain on their families.”). Section 5538’s reference to USERRA to determine the pay periods during which reservist pay is available is consistent with this objective. USERRA operates to “minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers.” 38 U.S.C. § 4301(a) (2006). As the House report accompanying USERRA states, Congress included a reemployment period after uniformed service because “[o]ne of the basic purposes of the reemployment statute is to maintain the servicemember’s civilian job as an ‘unburned bridge.’” H.R. Rep. No. 103-65, at 26 (1993). The period ensures that servicemembers are “not pressed for a decision immediately on [their] discharge, but ha[ve] the opportunity to make plans for the future and readjust [themselves] to civilian life.” Id. (quoting Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284 (1946)). Accordingly, it is entirely consistent with Congress’s objective to mitigate the financial burden of those called to active duty to provide, when the term of active 204 Entitlement to Reservist Differential Pay duty ends, reservist differential pay during their period of statutory readjustment to civilian life—a period during which they could otherwise have remained gainfully employed at their original government job had they not been ordered to active duty. For the reasons discussed above, we think the better reading of section 5538, viewed as a whole, would permit eligible employees to receive differential pay in accordance with the plain language of subsection (b)(2)(B). That reading is also consistent with and gains support from the interpretive canon that “provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.” King v. St. Vincent’s Hosp., 502 U.S. 215, 220 n.9 (1991) (interpreting a provision of the Veterans’ Reemployment Rights Act, a USERRA precursor); see also, e.g., Fishgold, 328 U.S. at 285 (“This legislation [the Selective Training and Service Act of 1940] is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need.”). B. In our view, neither the pre-enactment nor post-enactment legislative history of section 5538 offers much aid in interpreting the original text. Beginning in about 2001, numerous measures were introduced in both houses of Congress regarding reservist differential pay. Many of these bills were phrased in terms very similar to the bill first enacted as section 5538. However, there were significant differences in certain bills. For example, the earliest bills omitted the phrase “while serving on active duty,” from subsection (a), thus providing simply that that eligible federal employees would be “entitled to receive” a reservist differential “for each pay period described in subsection (b)”—a subsection that, in each case, included the language eventually enacted as subsection (b)(2)(B). See, e.g., H.R. 3337, 107th Cong. (introduced Nov. 16, 2001); S. 1818, 107th Cong. (introduced Dec. 13, 2001); H.R. 217, 108th Cong. (introduced Jan. 7, 2003). If such a bill had been adopted by Congress, the apparent tension in the pre-amendment text of subsections (a) and (b) of section 5538 would not have been presented. That tension first emerged in 2003. See S. 593, 108th Cong. (introduced Mar. 11, 2003). As originally introduced, S. 593 did not contain the phrase “while serving on 205 34 Op. O.L.C. 193 (2010) active duty” in subsection (a). That phrase was added in committee, in the same place it appears in the first-enacted version of subsection (a). See S. 593, 108th Cong. (reported out of Committee on Governmental Affairs, Nov. 16, 2004). Notably, however, the conference report for the amended S. 593 does not list the addition of the phrase “while serving on active duty” as among the changes made to the bill, or discuss the intended interplay between subsections (a) and (b). See S. Rep. No. 108-409 (Nov. 16, 2004). It appears that nearly every bill subsequently introduced regarding reservist differential pay incorporated both the phrase “while serving on active duty” in subsection (a) and the phrase “following completion of service on active duty” in subsection (b)(2)(B), just as did the bill that ultimately became law. See, e.g., S. 989, 109th Cong. (introduced May 10, 2005); H.R. 5525, 109th Cong. (introduced June 6, 2006); Financial Services and General Government Appropriations Act, 2009, S. 3260, 110th Cong. § 750(a) (introduced July 14, 2008). But see H.R. 4247, 110th Cong. § 4 (introduced Nov. 15, 2007) (omitting the “while serving on active duty” language from subsection (a) and providing in subsection (b) that reservist differential payments would be due “(A) while the employee serves on active duty for a period of more than 30 days; (B) while the employee is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of such active duty; or (C) during the 14-day period beginning at the end of such active duty or the end of the period referred to in subparagraph (B).”). We are not aware of any legislative history of any of these predecessor bills that illuminates the question you have asked. The legislative history of the original enactment similarly sheds little light on congressional intent. Section 5538 was passed as part of an omnibus appropriations bill, and it appears that the only mention of this statute in the legislative history is contained in an explanatory statement submitted by Representative Obey. That statement says, simply, that “Section 751 provides for nonreduction in pay for Federal employees while serving in the uniformed services or National Guard.” 155 Cong. Rec. H2704 (daily ed. Feb. 23, 2009). There have been some significant post-enactment developments, although we ultimately do not believe that Congress’s subsequent actions in this area provide clear direction as to its purpose in enacting the origi206 Entitlement to Reservist Differential Pay nal statute. Cf. PBGC v. LTV Corp., 496 U.S. 633, 650 (1990) (cautioning that “subsequent legislative history is a hazardous basis for inferring the intent of an earlier Congress”) (internal quotation marks omitted). As we previously noted, Congress amended section 5538 in December 2009, nine months after it was originally enacted. Both OPM and DoD have expressed the view, on which we offer no opinion, that, as revised, section 5538 no longer permits employees to receive reservist differential pay during the period after active service during which they continue to enjoy reemployment rights. See OPM, Reservist Differential, Guidance, Qualifying Periods, http://www.opm.gov/reservist/guidance/qualifying. asp (last visited ca. 2010). In some circumstances, when “a former statute is amended, or a doubtful meaning clarified by subsequent legislation, such amendment or subsequent legislation is strong evidence of the legislative intent of the first statute.” 2A Singer § 49:11; see also Bailey v. Clark, 88 U.S. 284, 288 (1874) (statutory amendment “was evidently intended to remove any doubt previously existing as to the meaning of the statute and declare its true construction and meaning”); Brown v. Marquette Sav. & Loan Ass’n, 686 F.2d 608, 615 (7th Cir. 1982) (same); Porter v. Comm’r of Internal Revenue, 856 F.2d 1205, 1209 (8th Cir. 1988) (“Amending legislation is perceived as clarifying, not changing, an original statute’s intended meaning when a conflict of statutory interpretation has arisen.”). However, a statutory amendment does not invariably mean that the revised statute and the original statute share a common meaning. To the contrary, the Supreme Court has acknowledged a “canon of statutory construction requiring a change in language to be read, if possible, to have some effect,” Am. Nat’l Red Cross v. S.G., 505 U.S. 247, 263 (1992), and has stated that “[t]he deliberate selection of language . . . differing from that used in the earlier acts indicates that a change of law was intended.” Brewster v. Gage, 280 U.S. 327, 337 (1930) (“There is no support for the suggestion that subdivision (5) expressed the meaning, or was intended to govern or affect the construction, of the earlier statutes.”); see also 2A Singer § 49:11 (“A number of cases have held that where an act is amended or changed so that doubtful meaning is resolved such action constitutes evidence that the previous statue meant the contrary.”). Accordingly, the significance of a statutory revision—i.e., whether it clarifies the original statute, or amends it—is appropriately determined by reference to the text 207 34 Op. O.L.C. 193 (2010) of the amendment and the context surrounding its adoption. See, e.g., S.G., 505 U.S. at 263–64 n.15 (relying on an absence of any indication in the “Advisory Report, the document both Houses of Congress acknowledged as the source for the amendment,” in rejecting the view that the amendment was intended merely to clarify “the Red Cross’s clear preamendment capacity to sue in federal court” rather than amend the law); Barnes v. Cohen, 749 F.2d 1009, 1015–16 (3d Cir. 1984) (determining in light of legislative history and a subsequent agency interpretation that Congress’s purpose in amending an ambiguous statute was to provide “‘clarification’ rather than a ‘change’”). Here, there is no clear textual indication that the amendment was meant to explain the meaning of the existing statute, rather than modify its meaning—indeed, the statute itself is simply silent on that point. It is true that the conference report described the amendment as a “technical correction” to the existing law, see H.R. Rep. No. 111-366, at 946 (2009) (Conf. Rep.), and that, in some instances, the phrase “technical correction” is used to denote that Congress does not intend to make a substantive change to an existing provision. See, e.g., N. Broward Hosp. Dist. v. Shalala, 172 F.3d 90, 97 (D.C. Cir. 1999) (where statutory amendment “was styled a ‘technical correction,’” “only clarification and not substantive change was intended”); Wilhelm Pudenz, GmbH v. Littlefuse, Inc., 177 F.3d 1204, 1211 (11th Cir. 1999) (“While the text of the corrections does not explicitly tell us whether the additions and subtractions constitute new law, their designation as technical corrections tends to indicate that they were merely changes meant to clarify existing law.”); In re Chateaugay Corp., 89 F.3d 942, 954 (2d Cir. 1996) (“By labelling the 1994 change a ‘technical correction,’ Congress recognized that the [prior] amendment did not purport to change the substantive meaning of the law.”). However, courts have also recognized that such labels are not determinative of a statute’s meaning and that amendments described by Congress as “technical” sometimes make significant changes in existing law. See, e.g., Graham County Soil & Water Conserv. Dist. v. United States ex rel. Wilson, 130 S. Ct. 1396, 1407–08 (2010) (“Significant substantive changes—including the introduction of the term we are construing in this case—were inserted without floor debate, as ‘technical’ amendments.”); United States v. R.L.C., 503 U.S. 291, 305 n.5 (1992) (“The dissent takes us to task for reliance upon a ‘technical amendment.’ 208 Entitlement to Reservist Differential Pay But a statute is a statute, whatever its label.”); Pub. Emps. Ret. Bd. v. Shalala, 153 F.3d 1160, 1162 (10th Cir. 1998) (“Congress did not consider the 1984 change to be dramatic, labeling the amendment a technical correction. Nonetheless, that technical correction has become very important” because it made certain retirement plan contributions subject to FICA taxes.); cf. H.R. 3658, H.R. 8321, and Related Bills, Congressional Review of Administrative Rulemaking: Hearing Before the Subcomm. on Admin. L. & Gov’t Rels. of the H. Committee on the Judiciary, 94th Cong. 376 (1975) (statement of Antonin Scalia, Assistant Attorney General, Office of Legal Counsel) (“Presidents have sometimes vetoed ‘clarifying’ legislation on the grounds that, in their view, the amendment did not clarify but vitiated the intent of the original act.”). Accordingly, the mere fact that the committee labeled this change a “technical correction” does not establish that it was intended to clarify the statute’s meaning, rather than amend it. III. Taken as a whole, and giving effect to each of its provisions, the text of section 5538 prior to its recent amendment is consistent with the view that the entitlement to reservist differential pay extends to the period following the completion of active duty service during which a returning reservist may apply or report for reemployment at his or her civilian workplace. Accordingly, we conclude that the pre-amendment version of section 5538 entitled federal employees to receive reservist differential pay during “any period of time specified in section 4312(e) of title 38 within which an employee may report or apply for employment or reemployment following completion of service on active duty.” 5 U.S.C. § 5538(b)(2)(B). JEANNIE S. RHEE Deputy Assistant Attorney General Office of Legal Counsel 209

Write a legal research memo on the following topic.

Prioritizing and Deferring Removal of Certain Aliens Unlawfully Present in the United States The Department of Homeland Security’s proposed policy to prioritize the removal of certain aliens unlawfully present in the United States would be a permissible exercise of DHS’s discretion to enforce the immigration laws. DHS’s proposed deferred action program for parents of U.S. citizens and legal permanent residents would also be a permissible exercise of DHS’s discretion to enforce the immigration laws. DHS’s proposed deferred action program for parents of recipients of deferred action under the Deferred Action for Childhood Arrivals program would not be a permissible exercise of DHS’s enforcement discretion. November 19, 2014 MEMORANDUM OPINION FOR THE SECRETARY OF HOMELAND SECURITY AND THE COUNSEL TO THE PRESIDENT * You have asked two questions concerning the scope of the Department of Homeland Security’s discretion to enforce the immigration laws. First, you have asked whether, in light of the limited resources available to the Department (“DHS”) to remove aliens unlawfully present in the United * Editor’s Note: This opinion has been withdrawn. The opinion’s principal subject, the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) policy, was preliminarily enjoined before it went into effect. See Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex.), aff ’d, 809 F.3d 134 (5th Cir. 2015), aff ’d by an equally divided Court, 136 S. Ct. 2271 (2016). Based on the reasoning in the Fifth Circuit’s decision, on September 4, 2017, Attorney General Sessions concluded that the related Deferred Action for Childhood Arrivals (“DACA”) policy, which is briefly discussed in footnote 8 of this opinion, was unlawful. See Letter for Elaine Duke, Acting Secretary of Homeland Security, from Jefferson B. Sessions III, Attorney General (Sept. 4, 2017). Although the Acting Secretary of Homeland Security announced the rescission of DACA on September 5, 2017, the Supreme Court vacated that decision and remanded for further proceedings. See Dep’t of Homeland Sec. v. Regents of Univ. of Cal., 140 S. Ct. 1891 (2020). In order to maximize the Acting Secretary’s discretion on remand, and without regard to the merits of the legal issues, Attorney General Barr withdrew Attorney General Sessions’ September 4, 2017 letter and, for the same reason, further directed this Office to withdraw this opinion. See Letter for Chad F. Wolf, Acting Secretary of Homeland Security, from William P. Barr, Attorney General (June 30, 2020). 39 38 Op. O.L.C. 39 (2014) States, it would be legally permissible for the Department to implement a policy prioritizing the removal of certain categories of aliens over others. DHS has explained that although there are approximately 11.3 million undocumented aliens in the country, it has the resources to remove fewer than 400,000 such aliens each year. DHS’s proposed policy would prioritize the removal of aliens who present threats to national security, public safety, or border security. Under the proposed policy, DHS officials could remove an alien who did not fall into one of these categories provided that an Immigration and Customs Enforcement (“ICE”) Field Office Director determined that “removing such an alien would serve an important federal interest.” Draft Memorandum for Thomas S. Winkowski, Acting Director, ICE, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re: Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants at 5 (Nov. 17, 2014) (“Johnson Prioritization Memorandum”). Second, you have asked whether it would be permissible for DHS to extend deferred action, a form of temporary administrative relief from removal, to certain aliens who are the parents of children who are present in the United States. Specifically, DHS has proposed to implement a program under which an alien could apply for, and would be eligible to receive, deferred action if he or she is not a DHS removal priority under the policy described above; has continuously resided in the United States since before January 1, 2010; has a child who is either a U.S. citizen or a lawful permanent resident; is physically present in the United States both when DHS announces its program and at the time of application for deferred action; and presents “no other factors that, in the exercise of discretion, make[] the grant of deferred action inappropriate.” Draft Memorandum for Leon Rodriguez, Director, U.S. Citizenship and Immigration Services, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and Others at 4 (Nov. 17, 2014) (“Johnson Deferred Action Memorandum”). You have also asked whether DHS could implement a similar program for parents of individuals who have received deferred action under the Deferred Action for Childhood Arrivals (“DACA”) program. As has historically been true of deferred action, these proposed deferred action programs would not “legalize” any aliens who are unlawfully 40 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens present in the United States: Deferred action does not confer any lawful immigration status, nor does it provide a path to obtaining permanent residence or citizenship. Grants of deferred action under the proposed programs would, rather, represent DHS’s decision not to seek an alien’s removal for a prescribed period of time. See generally Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 483–84 (1999) (describing deferred action). Under decades-old regulations promulgated pursuant to authority delegated by Congress, see 8 U.S.C. §§ 1103(a)(3), 1324a(h)(3), aliens who are granted deferred action—like certain other categories of aliens who do not have lawful immigration status, such as asylum applicants— may apply for authorization to work in the United States in certain circumstances, 8 C.F.R. § 274a.12(c)(14) (providing that deferred action recipients may apply for work authorization if they can show an “economic necessity for employment”); see also id. § 109.1(b)(7) (1982). Under DHS policy guidance, a grant of deferred action also suspends an alien’s accrual of unlawful presence for purposes of 8 U.S.C. § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I), provisions that restrict the admission of aliens who have departed the United States after having been unlawfully present for specified periods of time. A grant of deferred action under the proposed programs would remain in effect for three years, subject to renewal, and could be terminated at any time at DHS’s discretion. See Johnson Deferred Action Memorandum at 2, 5. For the reasons discussed below, we conclude that DHS’s proposed prioritization policy and its proposed deferred action program for parents of U.S. citizens and lawful permanent residents would be permissible exercises of DHS’s discretion to enforce the immigration laws. We further conclude that, as it has been described to us, the proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion. I. We first address DHS’s authority to prioritize the removal of certain categories of aliens over others. We begin by discussing some of the sources and limits of DHS’s enforcement discretion under the immigration laws, and then analyze DHS’s proposed prioritization policy in light of these considerations. 41 38 Op. O.L.C. 39 (2014) A. DHS’s authority to remove aliens from the United States rests on the Immigration and Nationality Act of 1952 (“INA”), as amended, 8 U.S.C. § 1101 et seq. In the INA, Congress established a comprehensive scheme governing immigration and naturalization. The INA specifies certain categories of aliens who are inadmissible to the United States. See 8 U.S.C. § 1182. It also specifies “which aliens may be removed from the United States and the procedures for doing so.” Arizona v. United States, 132 S. Ct. 2492, 2499 (2012). “Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law.” Id. (citing 8 U.S.C. § 1227); see 8 U.S.C. § 1227(a) (providing that “[a]ny alien . . . in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien” falls within one or more classes of deportable aliens); see also 8 U.S.C. § 1182(a) (listing classes of aliens ineligible to receive visas or be admitted to the United States). Removal proceedings ordinarily take place in federal immigration courts administered by the Executive Office for Immigration Review, a component of the Department of Justice. See id. § 1229a (governing removal proceedings); see also id. §§ 1225(b)(1)(A), 1228(b) (setting out expedited removal procedures for certain arriving aliens and certain aliens convicted of aggravated felonies). Before 2003, the Department of Justice, through the Immigration and Naturalization Service (“INS”), was also responsible for providing immigration-related administrative services and generally enforcing the immigration laws. In the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, Congress transferred most of these functions to DHS, giving it primary responsibility both for initiating removal proceedings and for carrying out final orders of removal. See 6 U.S.C. § 101 et seq.; see also Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005) (noting that the immigration authorities previously exercised by the Attorney General and INS “now reside” in the Secretary of Homeland Security and DHS). The Act divided INS’s functions among three different agencies within DHS: U.S. Citizenship and Immigration Services (“USCIS”), which oversees legal immigration into the United States and provides immigration and naturalization services to aliens; ICE, which enforces federal laws governing customs, trade, and immigration; and U.S. Customs and Border Protection (“CBP”), which monitors and secures the Nation’s borders and 42 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens ports of entry. See Homeland Security Act §§ 403, 442, 451, 471, 116 Stat. at 2178, 2193, 2195, 2205; see also Name Change from the Bureau of Citizenship and Immigration Services to U.S. Citizenship and Immigration Services, 69 Fed. Reg. 60,938, 60,938 (Oct. 13, 2004); Name Change of Two DHS Components, 75 Fed. Reg. 12,445, 12,445 (Mar. 16, 2010). The Secretary of Homeland Security is thus now “charged with the administration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens.” 8 U.S.C. § 1103(a)(1). As a general rule, when Congress vests enforcement authority in an executive agency, that agency has the discretion to decide whether a particular violation of the law warrants prosecution or other enforcement action. This discretion is rooted in the President’s constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, and it reflects a recognition that the “faithful[]” execution of the law does not necessarily entail “act[ing] against each technical violation of the statute” that an agency is charged with enforcing. Heckler v. Chaney, 470 U.S. 821, 831 (1985). Rather, as the Supreme Court explained in Chaney, the decision whether to initiate enforcement proceedings is a complex judgment that calls on the agency to “balanc[e] . . . a number of factors which are peculiarly within its expertise.” Id. These factors include “whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and . . . whether the agency has enough resources to undertake the action at all.” Id.; cf. United States v. Armstrong, 517 U.S. 456, 465 (1996) (recognizing that exercises of prosecutorial discretion in criminal cases involve consideration of “‘[s]uch factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan’” (quoting Wayte v. United States, 470 U.S. 598, 607 (1985))). In Chaney, the Court considered and rejected a challenge to the Food and Drug Administration’s refusal to initiate enforcement proceedings with respect to alleged violations of the Federal Food, Drug, and Cosmetic Act, concluding that an agency’s decision not to initiate enforcement proceedings is presumptively immune from judicial review. See 470 U.S. at 832. The Court explained that, while Congress may “provide[] guidelines for the agency to follow in exercising its enforcement powers,” in the absence of such “legislative direction,” an agency’s non-enforcement determination 43 38 Op. O.L.C. 39 (2014) is, much like a prosecutor’s decision not to indict, a “special province of the Executive.” Id. at 832–33. The principles of enforcement discretion discussed in Chaney apply with particular force in the context of immigration. Congress enacted the INA against a background understanding that immigration is “a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (internal quotation marks omitted). Consistent with this understanding, the INA vested the Attorney General (now the Secretary of Homeland Security) with broad authority to “establish such regulations; . . . issue such instructions; and perform such other acts as he deems necessary for carrying out his authority” under the statute. 8 U.S.C. § 1103(a)(3). Years later, when Congress created DHS, it expressly charged DHS with responsibility for “[e]stablishing national immigration enforcement policies and priorities.” Homeland Security Act § 402(5), 116 Stat. at 2178 (codified at 6 U.S.C. § 202(5)). With respect to removal decisions in particular, the Supreme Court has recognized that “the broad discretion exercised by immigration officials” is a “principal feature of the removal system” under the INA. Arizona, 132 S. Ct. at 2499. The INA expressly authorizes immigration officials to grant certain forms of discretionary relief from removal for aliens, including parole, 8 U.S.C. § 1182(d)(5)(A); asylum, id. § 1158(b)(1)(A); and cancellation of removal, id. § 1229b. But in addition to administering these statutory forms of relief, “[f ]ederal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.” Arizona, 132 S. Ct. at 2499. And, as the Court has explained, “[a]t each stage” of the removal process—“commenc[ing] proceedings, adjudicat[ing] cases, [and] execut[ing] removal orders”—immigration officials have “discretion to abandon the endeavor.” Am.-Arab Anti-Discrim. Comm., 525 U.S. at 483 (alterations in original) (quoting 8 U.S.C. § 1252(g)). Deciding whether to pursue removal at each of these stages implicates a wide range of considerations. As the Court observed in Arizona: Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has chil44 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens dren born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. . . . The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities. 132 S. Ct. at 2499. Immigration officials’ discretion in enforcing the laws is not, however, unlimited. Limits on enforcement discretion are both implicit in, and fundamental to, the Constitution’s allocation of governmental powers between the two political branches. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587–88 (1952). These limits, however, are not clearly defined. The open-ended nature of the inquiry under the Take Care Clause—whether a particular exercise of discretion is “faithful[]” to the law enacted by Congress—does not lend itself easily to the application of set formulas or bright-line rules. And because the exercise of enforcement discretion generally is not subject to judicial review, see Chaney, 470 U.S. at 831–33, neither the Supreme Court nor the lower federal courts have squarely addressed its constitutional bounds. Rather, the political branches have addressed the proper allocation of enforcement authority through the political process. As the Court noted in Chaney, Congress “may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue.” Id. at 833. The history of immigration policy illustrates this principle: Since the INA was enacted, the Executive Branch has on numerous occasions exercised discretion to extend various forms of immigration relief to categories of aliens for humanitarian, foreign policy, and other reasons. When Congress has been dissatisfied with executive action, it has responded, as Chaney suggests, by enacting legislation to limit the Executive’s discretion in enforcing the immigration laws. 1 1 See, e.g., Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 503–05 (2009) (describing Congress’s response to its dissatisfaction with the Executive’s use of parole power for refugee populations in the 1960s and 45 38 Op. O.L.C. 39 (2014) Nonetheless, the nature of the Take Care duty does point to at least four general (and closely related) principles governing the permissible scope of enforcement discretion that we believe are particularly relevant here. First, enforcement decisions should reflect “factors which are peculiarly within [the enforcing agency’s] expertise.” Chaney, 470 U.S. at 831. Those factors may include considerations related to agency resources, such as “whether the agency has enough resources to undertake the action,” or “whether agency resources are best spent on this violation or another.” Id. Other relevant considerations may include “the proper ordering of [the agency’s] priorities,” id. at 832, and the agency’s assessment of “whether the particular enforcement action [at issue] best fits the agency’s overall policies,” id. at 831. Second, the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences. See id. at 833 (an agency may not “disregard legislative direction in the statutory scheme that [it] administers”). In other words, an agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering. Cf. Youngstown, 343 U.S. at 637 (Jackson, J., concurring) (“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”); Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (explaining that where Congress has given an agency the power to administer a statutory scheme, a court will not vacate the agency’s decision about the proper administration of the statute unless, among other things, the agency “‘has relied on factors which Congress had not intended it to consider’” (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))). Third, the Executive Branch ordinarily cannot, as the Court put it in Chaney, “‘consciously and expressly adopt[] a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” 470 U.S. at 833 n.4 (quoting Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973) (en banc)); see id. (noting that in situations where an agency had adopted such an extreme policy, “the statute conferring authority on the agency might indicate that such decisions were not ‘com1970s); see also, e.g., infra note 5 (discussing legislative limitations on voluntary departure and extended voluntary departure). 46 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens mitted to agency discretion’”). Abdication of the duties assigned to the agency by statute is ordinarily incompatible with the constitutional obligation to faithfully execute the laws. But see, e.g., Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 200 (1994) (noting that under the Take Care Clause, “the President is required to act in accordance with the laws—including the Constitution, which takes precedence over other forms of law”). Finally, lower courts, following Chaney, have indicated that nonenforcement decisions are most comfortably characterized as judicially unreviewable exercises of enforcement discretion when they are made on a case-by-case basis. See, e.g., Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996); Crowley Caribbean Transp., Inc. v. Peña, 37 F.3d 671, 676–77 (D.C. Cir. 1994). That reading of Chaney reflects a conclusion that case-by-case enforcement decisions generally avoid the concerns mentioned above. Courts have noted that “single-shot non-enforcement decisions” almost inevitably rest on “the sort of mingled assessments of fact, policy, and law . . . that are, as Chaney recognizes, peculiarly within the agency’s expertise and discretion.” Crowley Caribbean Transp., 37 F.3d at 676 –77 (emphasis omitted). Individual enforcement decisions made on the basis of case-specific factors are also unlikely to constitute “general polic[ies] that [are] so extreme as to amount to an abdication of [the agency’s] statutory responsibilities.” Id. at 677 (quoting Chaney, 477 U.S. at 833 n.4). That does not mean that all “general policies” respecting non-enforcement are categorically forbidden: Some “general policies” may, for example, merely provide a framework for making individualized, discretionary assessments about whether to initiate enforcement actions in particular cases. Cf. Reno v. Flores, 507 U.S. 292, 313 (1993) (explaining that an agency’s use of “reasonable presumptions and generic rules” is not incompatible with a requirement to make individualized determinations). But a general policy of non-enforcement that forecloses the exercise of case-by-case discretion poses “special risks” that the agency has exceeded the bounds of its enforcement discretion. Crowley Caribbean Transp., 37 F.3d at 677. B. We now turn, against this backdrop, to DHS’s proposed prioritization policy. In their exercise of enforcement discretion, DHS and its predeces47 38 Op. O.L.C. 39 (2014) sor, INS, have long employed guidance instructing immigration officers to prioritize the enforcement of the immigration laws against certain categories of aliens and to deprioritize their enforcement against others. See, e.g., INS Operating Instructions § 103(a)(1)(i) (1962); Memorandum for All Field Office Directors, ICE, et al., from John Morton, Director, ICE, Re: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011); Memorandum for All ICE Employees from John Morton, Director, ICE, Re: Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens (Mar. 2, 2011); Memorandum for Regional Directors, INS, et al., from Doris Meissner, Commissioner, INS, Re: Exercising Prosecutorial Discretion (Nov. 17, 2000). The policy DHS proposes, which is similar to but would supersede earlier policy guidance, is designed to “provide clearer and more effective guidance in the pursuit” of DHS’s enforcement priorities: namely, “threats to national security, public safety and border security.” Johnson Prioritization Memorandum at 1. Under the proposed policy, DHS would identify three categories of undocumented aliens who would be priorities for removal from the United States. See generally id. at 3–5. The highest priority category would include aliens who pose particularly serious threats to national security, border security, or public safety, including aliens engaged in or suspected of espionage or terrorism, aliens convicted of offenses related to participation in criminal street gangs, aliens convicted of certain felony offenses, and aliens apprehended at the border while attempting to enter the United States unlawfully. See id. at 3. The second-highest priority would include aliens convicted of multiple or significant misdemeanor offenses; aliens who are apprehended after unlawfully entering the United States who cannot establish that they have been continuously present in the United States since January 1, 2014; and aliens determined to have significantly abused the visa or visa waiver programs. See id. at 3–4. The third priority category would include other aliens who have been issued a final order of removal on or after January 1, 2014. See id. at 4. The policy would also provide that none of these aliens should be prioritized for removal if they “qualify for asylum or another form of relief under our laws.” Id. at 3–5. 48 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens The policy would instruct that resources should be directed to these priority categories in a manner “commensurate with the level of prioritization identified.” Id. at 5. It would, however, also leave significant room for immigration officials to evaluate the circumstances of individual cases. See id. (stating that the policy “requires DHS personnel to exercise discretion based on individual circumstances”). For example, the policy would permit an ICE Field Office Director, CBP Sector Chief, or CBP Director of Field Operations to deprioritize the removal of an alien falling in the highest priority category if, in her judgment, “there are compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority.” Id. at 3. Similar discretionary provisions would apply to aliens in the second and third priority categories. 2 The policy would also provide a non-exhaustive list of factors DHS personnel should consider in making such deprioritization judgments. 3 In addition, the policy would expressly state that its terms should not be construed “to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities,” and would further provide that “[i]mmigration officers and attorneys may pursue removal of an alien not identified as a priority” if, “in the judgment of an ICE Field Office Director, removing such an alien would serve an important federal interest.” Id. at 5. DHS has explained that the proposed policy is designed to respond to the practical reality that the number of aliens who are removable under Under the proposed policy, aliens in the second tier could be deprioritized if, “in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District Director, or USCIS Service Center Director, there are factors indicating the alien is not a threat to national security, border security, or public safety, and should not therefore be an enforcement priority.” Johnson Prioritization Memorandum at 4. Aliens in the third tier could be deprioritized if, “in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority.” Id. at 5. 3 These factors include “extenuating circumstances involving the offense of conviction; extended length of time since the offense of conviction; length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings; or compelling humanitarian factors such as poor health, age, pregnancy, a young child or a seriously ill relative.” Id. at 6. 2 49 38 Op. O.L.C. 39 (2014) the INA vastly exceeds the resources Congress has made available to DHS for processing and carrying out removals. The resource constraints are striking. As noted, DHS has informed us that there are approximately 11.3 million undocumented aliens in the country, but that Congress has appropriated sufficient resources for ICE to remove fewer than 400,000 aliens each year, a significant percentage of whom are typically encountered at or near the border rather than in the interior of the country. See E-mail for Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from David Shahoulian, Deputy General Counsel, DHS, Re: Immigration Opinion (Nov. 19, 2014) (“Shahoulian E-mail”). The proposed policy explains that, because DHS “cannot respond to all immigration violations or remove all persons illegally in the United States,” it seeks to “prioritize the use of enforcement personnel, detention space, and removal assets” to “ensure that use of its limited resources is devoted to the pursuit of” DHS’s highest priorities. Johnson Prioritization Memorandum at 2. In our view, DHS’s proposed prioritization policy falls within the scope of its lawful discretion to enforce the immigration laws. To begin with, the policy is based on a factor clearly “within [DHS’s] expertise.” Chaney, 470 U.S. at 831. Faced with sharply limited resources, DHS necessarily must make choices about which removals to pursue and which removals to defer. DHS’s organic statute itself recognizes this inevitable fact, instructing the Secretary to establish “national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). And an agency’s need to ensure that scarce enforcement resources are used in an effective manner is a quintessential basis for the use of prosecutorial discretion. See Chaney, 470 U.S. at 831 (among the factors “peculiarly within [an agency’s] expertise” are “whether agency resources are best spent on this violation or another” and “whether the agency has enough resources to undertake the action at all”). The policy DHS has proposed, moreover, is consistent with the removal priorities established by Congress. In appropriating funds for DHS’s enforcement activities—which, as noted, are sufficient to permit the removal of only a fraction of the undocumented aliens currently in the country—Congress has directed DHS to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.” 50 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens Department of Homeland Security Appropriations Act, 2014, Pub. L. No. 113-76, div. F, tit. II, 128 Stat. 5, 251 (“DHS Appropriations Act”). Consistent with this directive, the proposed policy prioritizes individuals convicted of criminal offenses involving active participation in a criminal street gang, most offenses classified as felonies in the convicting jurisdiction, offenses classified as “aggravated felonies” under the INA, and certain misdemeanor offenses. Johnson Prioritization Memorandum at 3–4. The policy ranks these priority categories according to the severity of the crime of conviction. The policy also prioritizes the removal of other categories of aliens who pose threats to national security or border security, matters about which Congress has demonstrated particular concern. See, e.g., 8 U.S.C. § 1226(c)(1)(D) (providing for detention of aliens charged with removability on national security grounds); id. § 1225(b), (c) (providing for an expedited removal process for certain aliens apprehended at the border). The policy thus raises no concern that DHS has relied “on factors which Congress had not intended it to consider.” Nat’l Ass’n of Home Builders, 551 U.S. at 658. Further, although the proposed policy is not a “single-shot non-enforcement decision,” neither does it amount to an abdication of DHS’s statutory responsibilities, or constitute a legislative rule overriding the commands of the substantive statute. Crowley Caribbean Transp., 37 F.3d at 676–77. The proposed policy provides a general framework for exercising enforcement discretion in individual cases, rather than establishing an absolute, inflexible policy of not enforcing the immigration laws in certain categories of cases. Given that the resources Congress has allocated to DHS are sufficient to remove only a small fraction of the total population of undocumented aliens in the United States, setting forth written guidance about how resources should presumptively be allocated in particular cases is a reasonable means of ensuring that DHS’s severely limited resources are systematically directed to its highest priorities across a large and diverse agency, as well as ensuring consistency in the administration of the removal system. The proposed policy’s identification of categories of aliens who constitute removal priorities is also consistent with the categorical nature of Congress’s instruction to prioritize the removal of criminal aliens in the DHS Appropriations Act. 51 38 Op. O.L.C. 39 (2014) And, significantly, the proposed policy does not identify any category of removable aliens whose removal may not be pursued under any circumstances. Although the proposed policy limits the discretion of immigration officials to expend resources to remove non-priority aliens, it does not eliminate that discretion entirely. It directs immigration officials to use their resources to remove aliens in a manner “commensurate with the level of prioritization identified,” but (as noted above) it does not “prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities.” Johnson Prioritization Memorandum at 5. Instead, it authorizes the removal of even non-priority aliens if, in the judgment of an ICE Field Office Director, “removing such an alien would serve an important federal interest,” a standard the policy leaves open-ended. Id. Accordingly, the policy provides for case-by-case determinations about whether an individual alien’s circumstances warrant the expenditure of removal resources, employing a broad standard that leaves ample room for the exercise of individualized discretion by responsible officials. For these reasons, the proposed policy avoids the difficulties that might be raised by a more inflexible prioritization policy and dispels any concern that DHS has either undertaken to rewrite the immigration laws or abdicated its statutory responsibilities with respect to non-priority aliens. 4 In Crane v. Napolitano, a district court recently concluded in a non-precedential opinion that the INA “mandates the initiation of removal proceedings whenever an immigration officer encounters an illegal alien who is not ‘clearly and beyond a doubt entitled to be admitted.’” No. 3:12-cv-03247-O, 2013 WL 1744422, at *5 (N.D. Tex. Apr. 23, 2013) (quoting 8 U.S.C. § 1225(b)(2)(A)). The court later dismissed the case for lack of jurisdiction. See Crane v. Napolitano, No. 3:12-cv-03247-O, 2013 WL 8211660, at *4 (N.D. Tex. July 31, 2013). Although the opinion lacks precedential value, we have nevertheless considered whether, as it suggests, the text of the INA categorically forecloses the exercise of enforcement discretion with respect to aliens who have not been formally admitted. The district court’s conclusion is, in our view, inconsistent with the Supreme Court’s reading of the INA as permitting immigration officials to exercise enforcement discretion at any stage of the removal process, including when deciding whether to initiate removal proceedings against a particular alien. See Arizona, 132 S. Ct. at 2499; Am.-Arab Anti-Discrim. Comm., 525 U.S. at 483–84. It is also difficult to square with authority holding that the presence of mandatory language in a statute, standing alone, does not necessarily limit the Executive Branch’s enforcement discretion. See, e.g., Chaney, 470 4 52 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens II. We turn next to the permissibility of DHS’s proposed deferred action programs for certain aliens who are parents of U.S. citizens, lawful permanent residents (“LPRs”), or DACA recipients, and who are not removal priorities under the proposed policy discussed above. We begin by discussing the history and current practice of deferred action. We then discuss the legal authorities on which deferred action relies and identify legal principles against which the proposed use of deferred action can be evaluated. Finally, we turn to an analysis of the proposed deferred action programs themselves, beginning with the program for parents of U.S. citizens and LPRs, and concluding with the program for parents of DACA recipients. A. In immigration law, the term “deferred action” refers to an exercise of administrative discretion in which immigration officials temporarily defer the removal of an alien unlawfully present in the United States. Am.-Arab Anti-Discrim. Comm., 525 U.S. at 484 (citing 6 Charles Gordon et al., Immigration Law and Procedure § 72.03[2][h] (1998)); see USCIS, Standard Operating Procedures for Handling Deferred Action Requests at USCIS Field Offices at 3 (2012) (“USCIS SOP”); INS Operating Instructions § 103.1(a)(1)(ii) (1977). It is one of a number of forms of discretionary relief—in addition to such statutory and non-statutory measures as parole, temporary protected status, deferred enforced departure, and extended voluntary departure—that immigration officials have used over the years to temporarily prevent the removal of undocumented aliens. 5 U.S. at 835; Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 381 (2d Cir. 1973). 5 Parole is available to aliens by statute “for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A). Among other things, parole gives aliens the ability to adjust their status without leaving the United States if they are otherwise eligible for adjustment of status, see id. § 1255(a), and may eventually qualify them for federal means-tested benefits, see id. §§ 1613, 1641(b)(4). Temporary protected status is available to nationals of designated foreign states affected by armed conflicts, environmental disasters, and other extraordinary conditions. Id. § 1254a. Deferred enforced departure, 53 38 Op. O.L.C. 39 (2014) The practice of granting deferred action dates back several decades. For many years after the INA was enacted, INS exercised prosecutorial discretion to grant “non-priority” status to removable aliens who presented “appealing humanitarian factors.” Letter for Leon Wildes from E.A. Loughran, Associate Commissioner, INS at 2 (July 16, 1973) (defining a “non-priority case” as “one in which the Service in the exercise of discretion determines that adverse action would be unconscionable because of appealing humanitarian factors”); see INS Operating Instructions § 103.1(a)(1)(ii) (1962). This form of administrative discretion was later termed “deferred action.” Am.-Arab Anti-Discrim. Comm., 525 U.S. at 484; see INS Operating Instructions § 103.1(a)(1)(ii) (1977) (instructing immigration officers to recommend deferred action whenever “adverse action would be unconscionable because of the existence of appealing humanitarian factors”). which “has no statutory basis” but rather is an exercise of “the President’s constitutional powers to conduct foreign relations,” may be granted to nationals of appropriate foreign states. USCIS, Adjudicator’s Field Manual § 38.2(a) (2014). Extended voluntary departure was a remedy derived from the voluntary departure statute, which, before its amendment in 1996, permitted the Attorney General to make a finding of removability if an alien agreed to voluntarily depart the United States, without imposing a time limit for the alien’s departure. See 8 U.S.C. §§ 1252(b), 1254(e) (1988 & Supp. II 1990); cf. 8 U.S.C. § 1229c (current provision of the INA providing authority to grant voluntary departure, but limiting such grants to 120 days). Some commentators, however, suggested that extended voluntary departure was in fact a form of “discretionary relief formulated administratively under the Attorney General’s general authority for enforcing immigration law.” Sharon Stephan, Cong. Research Serv., 85-599 EPW, Extended Voluntary Departure and Other Grants of Blanket Relief from Deportation at 1 (Feb. 23, 1985). It appears that extended voluntary departure is no longer used following enactment of the Immigration Act of 1990, which established the temporary protected status program. See U.S. Citizenship and Immigration Services Fee Schedule, 75 Fed. Reg. 33,446, 33,457 (June 11, 2010) (proposed rule) (noting that “since 1990 neither the Attorney General nor the Secretary have designated a class of aliens for nationality-based ‘extended voluntary departure,’ and there no longer are aliens in the United States benefiting from such a designation,” but noting that deferred enforced departure is still used); H.R. Rep. No. 102123, at 2 (1991) (indicating that in establishing temporary protected status, Congress was “codif [ying] and supersed[ing]” extended voluntary departure). See generally Andorra Bruno et al., Cong. Research Serv., Analysis of June 15, 2012 DHS Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children at 5–10 (July 13, 2012) (“CRS Immigration Report”). 54 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens Although the practice of granting deferred action “developed without express statutory authorization,” it has become a regular feature of the immigration removal system that has been acknowledged by both Congress and the Supreme Court. Am.-Arab Anti-Discrim. Comm., 525 U.S. at 484 (internal quotation marks omitted); see id. at 485 (noting that a congressional enactment limiting judicial review of decisions “to commence proceedings, adjudicate cases, or execute removal orders against any alien under [the INA]” in 8 U.S.C. § 1252(g) “seems clearly designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations”); see also, e.g., 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV) (providing that certain individuals are “eligible for deferred action”). Deferred action “does not confer any immigration status”—i.e., it does not establish any enforceable legal right to remain in the United States—and it may be revoked by immigration authorities at their discretion. USCIS SOP at 3, 7. Assuming it is not revoked, however, it represents DHS’s decision not to seek the alien’s removal for a specified period of time. Under longstanding regulations and policy guidance promulgated pursuant to statutory authority in the INA, deferred action recipients may receive two additional benefits. First, relying on DHS’s statutory authority to authorize certain aliens to work in the United States, DHS regulations permit recipients of deferred action to apply for work authorization if they can demonstrate an “economic necessity for employment.” 8 C.F.R. § 274a.12(c)(14); see 8 U.S.C. § 1324a(h)(3) (defining an “unauthorized alien” not entitled to work in the United States as an alien who is neither an LPR nor “authorized to be . . . employed by [the INA] or by the Attorney General [now the Secretary of Homeland Security]”). Second, DHS has promulgated regulations and issued policy guidance providing that aliens who receive deferred action will temporarily cease accruing “unlawful presence” for purposes of 8 U.S.C. § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I). 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2); Memorandum for Field Leadership from Donald Neufeld, Acting Associate Director, Domestic Operations Directorate, USCIS, Re: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)( i ) and 212(a)(9)(C)( i )( I ) of the Act at 42 (May 6, 2009) (“USCIS Consolidation of Guidance”) (noting that “[a]ccrual of unlawful presence stops on the date an alien is granted 55 38 Op. O.L.C. 39 (2014) deferred action”); see 8 U.S.C. § 1182(a)(9)(B)(ii) (providing that an alien is “unlawfully present” if, among other things, he “is present in the United States after the expiration of the period of stay authorized by the Attorney General”). 6 Immigration officials today continue to grant deferred action in individual cases for humanitarian and other purposes, a practice we will refer to as “ad hoc deferred action.” Recent USCIS guidance provides that personnel may recommend ad hoc deferred action if they “encounter cases during [their] normal course of business that they feel warrant deferred action.” USCIS SOP at 4. An alien may also apply for ad hoc deferred action by submitting a signed, written request to USCIS containing “[a]n explanation as to why he or she is seeking deferred action” along with supporting documentation, proof of identity, and other records. Id. at 3. For decades, INS and later DHS have also implemented broader programs that make discretionary relief from removal available for particular classes of aliens. In many instances, these agencies have made such broad-based relief available through the use of parole, temporary protected status, deferred enforced departure, or extended voluntary departure. For example, from 1956 to 1972, INS implemented an extended voluntary departure program for physically present aliens who were beneficiaries of approved visa petitions—known as “Third Preference” visa petitions— relating to a specific class of visas for Eastern Hemisphere natives. See United States ex rel. Parco v. Morris, 426 F. Supp. 976, 979–80 (E.D. Pa. 1977). Similarly, for several years beginning in 1978, INS granted extended voluntary departure to nurses who were eligible for H-1 visas. Voluntary Departure for Out-of-Status Nonimmigrant H-1 Nurses, 43 Fed. Reg. 2776, 2776 (Jan. 19, 1978). In addition, in more than two dozen instances dating to 1956, INS and later DHS granted parole, temporary protected status, deferred enforced departure, or extended voluntary departure to large numbers of nationals of designated foreign states. Section 1182(a)(9)(B)(i) imposes three- and ten-year bars on the admission of aliens (other than aliens admitted to permanent residence) who departed or were removed from the United States after periods of unlawful presence of between 180 days and one year, or one year or more. Section 1182(a)(9)(C)(i)(I) imposes an indefinite bar on the admission of any alien who, without being admitted, enters or attempts to reenter the United States after previously having been unlawfully present in the United States for an aggregate period of more than one year. 6 56 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens See, e.g., CRS Immigration Report at 20–23; Cong. Research Serv., ED206779, Review of U.S. Refugee Resettlement Programs and Policies at 9, 12–14 (1980). And in 1990, INS implemented a “Family Fairness” program that authorized granting extended voluntary departure and work authorization to the estimated 1.5 million spouses and children of aliens who had been granted legal status under the Immigration Reform and Control Act of 1986 (“IRCA”), Pub. L. No. 99-603, 100 Stat. 3359. See Memorandum for Regional Commissioners, INS, from Gene McNary, Commissioner, INS, Re: Family Fairness: Guidelines for Voluntary Departure Under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens (Feb. 2, 1990) (“Family Fairness Memorandum”); see also CRS Immigration Report at 10. On at least five occasions since the late 1990s, INS and later DHS have also made discretionary relief available to certain classes of aliens through the use of deferred action: 1. Deferred Action for Battered Aliens Under the Violence Against Women Act. INS established a class-based deferred action program in 1997 for the benefit of self-petitioners under the Violence Against Women Act of 1994 (“VAWA”), Pub. L. No. 103-322, tit. IV, 108 Stat. 1796, 1902. VAWA authorized certain aliens who have been abused by U.S. citizen or LPR spouses or parents to self-petition for lawful immigration status, without having to rely on their abusive family members to petition on their behalf. Id. § 40701(a) (codified as amended at 8 U.S.C. § 1154(a)(1)(A)(iii)–(iv), (vii)). The INS program required immigration officers who approved a VAWA self-petition to assess, “on a case-by-case basis, whether to place the alien in deferred action status” while the alien waited for a visa to become available. Memorandum for Regional Directors et al., INS, from Paul W. Virtue, Acting Executive Associate Commissioner, INS, Re: Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues at 3 (May 6, 1997). INS noted that “[b]y their nature, VAWA cases generally possess factors that warrant consideration for deferred action.” Id. But because “[i]n an unusual case, there may be factors present that would militate against deferred action,” the agency instructed officers that requests for deferred action should still “receive individual scrutiny.” Id. In 2000, INS reported to Congress that, because of this program, no approved VAWA selfpetitioner had been removed from the country. See Battered Women 57 38 Op. O.L.C. 39 (2014) Immigrant Protection Act: Hearings on H.R. 3083 Before the Subcomm. on Immigration & Claims of the H. Comm. on the Judiciary, 106th Cong. at 43 (July 20, 2000) (“H.R. 3083 Hearings”). 2. Deferred Action for T and U Visa Applicants. Several years later, INS instituted a similar deferred action program for applicants for nonimmigrant status or visas made available under the Victims of Trafficking and Violence Protection Act of 2000 (“VTVPA”), Pub. L. No. 106-386, 114 Stat. 1464. That Act created two new nonimmigrant classifications: a “T visa” available to victims of human trafficking and their family members, and a “U visa” for victims of certain other crimes and their family members. Id. §§ 107(e), 1513(b)(3) (codified at 8 U.S.C. § 1101(a)(15)(T)(i), (U)(i)). In 2001, INS issued a memorandum directing immigration officers to locate “possible victims in the above categories,” and to use “[e]xisting authority and mechanisms such as parole, deferred action, and stays of removal” to prevent those victims’ removal “until they have had the opportunity to avail themselves of the provisions of the VTVPA.” Memorandum for Michael A. Pearson, Executive Associate Commissioner, INS, from Michael D. Cronin, Acting Executive Associate Commissioner, INS, Re: Victims of Trafficking and Violence Protection Act of 2000 (VTVPA) Policy Memorandum #2—“T” and “U” Nonimmigrant Visas at 2 (Aug. 30, 2001). In subsequent memoranda, INS instructed officers to make “deferred action assessment[s]” for “all [T visa] applicants whose applications have been determined to be bona fide,” Memorandum for Johnny N. Williams, Executive Associate Commissioner, INS, from Stuart Anderson, Executive Associate Commissioner, INS, Re: Deferred Action for Aliens with Bona Fide Applications for T Nonimmigrant Status at 1 (May 8, 2002), as well as for all U visa applicants “determined to have submitted prima facie evidence of [their] eligibility,” Memorandum for the Director, Vermont Service Center, INS, from William R. Yates, USCIS, Re: Centralization of Interim Relief for U Nonimmigrant Status Applicants at 5 (Oct. 8, 2003). In 2002 and 2007, INS and DHS promulgated regulations embodying these policies. See 8 C.F.R. § 214.11(k)(1), (k)(4), (m)(2) (promulgated by New Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status, 67 Fed. Reg. 4784, 4800–01 (Jan. 31, 2002)) (providing that any T visa applicant who presents “prima facie evidence” of his eligibility should have his removal “automatically stay[ed]” and 58 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens that applicants placed on a waiting list for visas “shall maintain [their] current means to prevent removal (deferred action, parole, or stay of removal)”); id. § 214.14(d)(2) (promulgated by New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, 72 Fed. Reg. 53,014, 53,039 (Sept. 17, 2007)) (“USCIS will grant deferred action or parole to U-1 petitioners and qualifying family members while the U-1 petitioners are on the waiting list” for visas). 3. Deferred Action for Foreign Students Affected by Hurricane Katrina. As a consequence of the devastation caused by Hurricane Katrina in 2005, several thousand foreign students became temporarily unable to satisfy the requirements for maintaining their lawful status as F-1 nonimmigrant students, which include “pursuit of a ‘full course of study.’” USCIS, Interim Relief for Certain Foreign Academic Students Adversely Affected by Hurricane Katrina: Frequently Asked Questions (FAQ) at 1 (Nov. 25, 2005) (quoting 8 C.F.R. § 214.2(f)(6)), http://www. uscis.gov/sites/default/files/USCIS/Humanitarian/Special%20Situations/ Previous%20Special%20Situations%20By%20Topic/faq-interim-studentrelief-hurricane-katrina.pdf (last visited Nov. 19, 2014). DHS announced that it would grant deferred action to these students “based on the fact that [their] failure to maintain status is directly due to Hurricane Katrina.” Id. at 7. To apply for deferred action under this program, students were required to send a letter substantiating their need for deferred action, along with an application for work authorization. Press Release, USCIS, USCIS Announces Interim Relief for Foreign Students Adversely Impacted by Hurricane Katrina at 1–2 (Nov. 25, 2005), http://www. uscis.gov/sites/default/files/files/pressrelease/F1Student_11_25_05_PR. pdf (last visited Nov. 19, 2014). USCIS explained that such requests for deferred action would be “decided on a case-by-case basis” and that it could not “provide any assurance that all such requests will be granted.” Id. at 1. 4. Deferred Action for Widows and Widowers of U.S. Citizens. In 2009, DHS implemented a deferred action program for certain widows and widowers of U.S. citizens. USCIS explained that “no avenue of immigration relief exists for the surviving spouse of a deceased U.S. citizen if the surviving spouse and the U.S. citizen were married less than 2 years at the time of the citizen’s death” and USCIS had not yet adjudicated a visa petition on the spouse’s behalf. Memorandum for Field Lead59 38 Op. O.L.C. 39 (2014) ership, USCIS, from Donald Neufeld, Acting Associate Director, USCIS, Re: Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children at 1 (Sept. 4, 2009). “In order to address humanitarian concerns arising from cases involving surviving spouses of U.S. citizens,” USCIS issued guidance permitting covered surviving spouses and “their qualifying children who are residing in the United States” to apply for deferred action. Id. at 2, 6. USCIS clarified that such relief would not be automatic, but rather would be unavailable in the presence of, for example, “serious adverse factors, such as national security concerns, significant immigration fraud, commission of other crimes, or public safety reasons.” Id. at 6. 7 5. Deferred Action for Childhood Arrivals. Announced by DHS in 2012, DACA makes deferred action available to “certain young people who were brought to this country as children” and therefore “[a]s a general matter . . . lacked the intent to violate the law.” Memorandum for David Aguilar, Acting Commissioner, CBP, et al., from Janet Napolitano, Secretary, DHS, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children at 1 (June 15, 2012) (“Napolitano Memorandum”). An alien is eligible for DACA if she was under the age of 31 when the program began; arrived in the United States before the age of 16; continuously resided in the United States for at least 5 years immediately preceding June 15, 2012; was physically present on June 15, 2012; satisfies certain educational or military service requirements; and neither has a serious criminal history nor “poses a threat to national security or public safety.” See id. DHS evaluates applicants’ eligibility for DACA on a case-by-case basis. See id. at 2; USCIS, Deferred Action for Childhood Arrivals (DACA) Toolkit: Resources for Community Partners at 11 (“DACA Toolkit”). Successful DACA appli7 Several months after the deferred action program was announced, Congress eliminated the requirement that an alien be married to a U.S. citizen “for at least 2 years at the time of the citizen’s death” to retain his or her eligibility for lawful immigration status. Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, § 568(c), 123 Stat. 2142, 2186 (2009). Concluding that this legislation rendered its surviving spouse guidance “obsolete,” USCIS withdrew its earlier guidance and treated all pending applications for deferred action as visa petitions. See Memorandum for Executive Leadership, USCIS, from Donald Neufeld, Acting Associate Director, USCIS, et al., Re: Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children (REVISED) at 3, 10 (Dec. 2, 2009). 60 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens cants receive deferred action for a period of two years, subject to renewal. See DACA Toolkit at 11. DHS has stated that grants of deferred action under DACA may be terminated at any time, id. at 16, and “confer[] no substantive right, immigration status or pathway to citizenship,” Napolitano Memorandum at 3. 8 Congress has long been aware of the practice of granting deferred action, including in its categorical variety, and of its salient features; and it has never acted to disapprove or limit the practice. 9 On the contrary, it has enacted several pieces of legislation that have either assumed that deferred action would be available in certain circumstances, or expressly directed that deferred action be extended to certain categories of aliens. For example, as Congress was considering VAWA reauthorization Before DACA was announced, our Office was consulted about whether such a program would be legally permissible. As we orally advised, our preliminary view was that such a program would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis. We noted that immigration officials typically consider factors such as having been brought to the United States as a child in exercising their discretion to grant deferred action in individual cases. We explained, however, that extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action. We advised that it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a caseby-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria. We also noted that, although the proposed program was predicated on humanitarian concerns that appeared less particularized and acute than those underlying certain prior class-wide deferred action programs, the concerns animating DACA were nonetheless consistent with the types of concerns that have customarily guided the exercise of immigration enforcement discretion. 8 9 Congress has considered legislation that would limit the practice of granting deferred action, but it has never enacted such a measure. In 2011, a bill was introduced in both the House and the Senate that would have temporarily suspended DHS’s authority to grant deferred action except in narrow circumstances. See H.R. 2497, 112th Cong. (2011); S. 1380, 112th Cong. (2011). Neither chamber, however, voted on the bill. This year, the House passed a bill that purported to bar any funding for DACA or other class-wide deferred action programs, H.R. 5272, 113th Cong. (2014), but the Senate has not considered the legislation. Because the Supreme Court has instructed that unenacted legislation is an unreliable indicator of legislative intent, see Red Lion Broad. Co. v. FCC, 395 U.S. 367, 381 n.11 (1969), we do not draw any inference regarding congressional policy from these unenacted bills. 61 38 Op. O.L.C. 39 (2014) legislation in 2000, INS officials testified before Congress about their deferred action program for VAWA self-petitioners, explaining that “[a]pproved [VAWA] self-petitioners are placed in deferred action status,” such that “[n]o battered alien who has filed a[n approved] self petition . . . has been deported.” H.R. 3083 Hearings at 43. Congress responded by not only acknowledging but also expanding the deferred action program in the 2000 VAWA reauthorization legislation, providing that children who could no longer self-petition under VAWA because they were over the age of 21 would nonetheless be “eligible for deferred action and work authorization.” VTVPA § 1503(d)(2), 114 Stat. at 1522 (codified at 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV)). 10 Congress demonstrated a similar awareness of INS’s (and later DHS’s) deferred action program for bona fide T and U visa applicants. As discussed above, that program made deferred action available to nearly all individuals who could make a prima facie showing of eligibility for a T or U visa. In 2008 legislation, Congress authorized DHS to “grant . . . an administrative stay of a final order of removal” to any such individual. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, § 204, 122 Stat. 5044, 5060 (codified at 8 U.S.C. § 1227(d )(1)). Congress further clarified that “[t]he denial of a request for an administrative stay of removal under this subsection shall not preclude the alien from applying for . . . deferred action.” Id. It also directed DHS to compile a report detailing, among other things, how long DHS’s “specially trained [VAWA] Unit at the [USCIS] Vermont Service Center” took to adjudicate victim-based immigration applications for “deferred action,” along with “steps taken to improve in this area.” Id. § 238. Representative Berman, the bill’s sponsor, explained that the Vermont Service Center should “strive to issue work authorization and deferred action” to “[i]mmigrant victims of domestic violence, sexual Five years later, in the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960, Congress specified that, “[u]pon the approval of a petition as a VAWA self-petitioner, the alien . . . is eligible for work authorization.” Id. § 814(b) (codified at 8 U.S.C. § 1154(a)(1)(K)). One of the Act’s sponsors explained that while this provision was intended to “give[] DHS statutory authority to grant work authorization . . . without having to rely upon deferred action . . . [t]he current practice of granting deferred action to approved VAWA self-petitioners should continue.” 151 Cong. Rec. 29,334 (2005) (statement of Rep. Conyers). 10 62 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens assault and other violence crimes . . . in most instances within 60 days of filing.” 154 Cong. Rec. 24,603 (2008). In addition, in other enactments, Congress has specified that certain classes of individuals should be made “eligible for deferred action.” These classes include certain immediate family members of LPRs who were killed on September 11, 2001, USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361, and certain immediate family members of certain U.S. citizens killed in combat, National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, § 1703(c)–(d), 117 Stat. 1392, 1694 (2003). In the same legislation, Congress made these individuals eligible to obtain lawful status as “family-sponsored immigrant[s]” or “immediate relative[s]” of U.S. citizens. Pub. L. No. 107-56, § 423(b), 115 Stat. at 361; Pub. L. No. 108-136, § 1703(c)(1)(A), 117 Stat. at 1694. See generally Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2197 (2014) (plurality opinion) (explaining which aliens typically qualify as family-sponsored immigrants or immediate relatives). Finally, Congress acknowledged the practice of granting deferred action in the REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231, 302 (codified at 49 U.S.C. § 30301 note), which makes a state-issued driver’s license or identification card acceptable for federal purposes only if the state verifies, among other things, that the card’s recipient has “[e]vidence of [l]awful [s]tatus.” Congress specified that, for this purpose, acceptable evidence of lawful status includes proof of, among other things, citizenship, lawful permanent or temporary residence, or “approved deferred action status.” Id. § 202(c)(2)(B)(viii). B. The practice of granting deferred action, like the practice of setting enforcement priorities, is an exercise of enforcement discretion rooted in DHS’s authority to enforce the immigration laws and the President’s duty to take care that the laws are faithfully executed. It is one of several mechanisms by which immigration officials, against a backdrop of limited enforcement resources, exercise their “broad discretion” to administer the removal system—and, more specifically, their discretion to determine whether “it makes sense to pursue removal” in particular circumstances. Arizona, 132 S. Ct. at 2499. 63 38 Op. O.L.C. 39 (2014) Deferred action, however, differs in at least three respects from more familiar and widespread exercises of enforcement discretion. First, unlike (for example) the paradigmatic exercise of prosecutorial discretion in a criminal case, the conferral of deferred action does not represent a decision not to prosecute an individual for past unlawful conduct; it instead represents a decision to openly tolerate an undocumented alien’s continued presence in the United States for a fixed period (subject to revocation at the agency’s discretion). Second, unlike most exercises of enforcement discretion, deferred action carries with it benefits in addition to nonenforcement itself; specifically, the ability to seek employment authorization and suspension of unlawful presence for purposes of 8 U.S.C. § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I). Third, class-based deferred action programs, like those for VAWA recipients and victims of Hurricane Katrina, do not merely enable individual immigration officials to select deserving beneficiaries from among those aliens who have been identified or apprehended for possible removal—as is the case with ad hoc deferred action—but rather set forth certain threshold eligibility criteria and then invite individuals who satisfy these criteria to apply for deferred action status. While these features of deferred action are somewhat unusual among exercises of enforcement discretion, the differences between deferred action and other exercises of enforcement discretion are less significant than they might initially appear. The first feature—the toleration of an alien’s continued unlawful presence—is an inevitable element of almost any exercise of discretion in immigration enforcement. Any decision not to remove an unlawfully present alien—even through an exercise of routine enforcement discretion—necessarily carries with it a tacit acknowledgment that the alien will continue to be present in the United States without legal status. Deferred action arguably goes beyond such tacit acknowledgment by expressly communicating to the alien that his or her unlawful presence will be tolerated for a prescribed period of time. This difference is not, in our view, insignificant. But neither does it fundamentally transform deferred action into something other than an exercise of enforcement discretion: As we have previously noted, deferred action confers no lawful immigration status, provides no path to lawful permanent residence or citizenship, and is revocable at any time in the agency’s discretion. 64 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens With respect to the second feature, the additional benefits deferred action confers—the ability to apply for work authorization and the tolling of unlawful presence—do not depend on background principles of agency discretion under DHS’s general immigration authorities or the Take Care Clause at all, but rather depend on independent and more specific statutory authority rooted in the text of the INA. The first of those authorities, DHS’s power to prescribe which aliens are authorized to work in the United States, is grounded in 8 U.S.C. § 1324a(h)(3), which defines an “unauthorized alien” not entitled to work in the United States as an alien who is neither an LPR nor “authorized to be . . . employed by [the INA] or by the Attorney General [now the Secretary of Homeland Security].” This statutory provision has long been understood to recognize the authority of the Secretary (and the Attorney General before him) to grant work authorization to particular classes of aliens. See 8 C.F.R. § 274a.12; see also Perales v. Casillas, 903 F.2d 1043, 1048–50 (5th Cir. 1990) (describing the authority recognized by section 1324a(h)(3) as “permissive” and largely “unfettered”). 11 Although the INA requires the Section 1324a(h)(3) was enacted in 1986 as part of IRCA. Before then, the INA contained no provisions comprehensively addressing the employment of aliens or expressly delegating the authority to regulate the employment of aliens to a responsible federal agency. INS assumed the authority to prescribe the classes of aliens authorized to work in the United States under its general responsibility to administer the immigration laws. In 1981, INS promulgated regulations codifying its existing procedures and criteria for granting employment authorization. See Employment Authorization to Aliens in the United States, 46 Fed. Reg. 25,079, 25,080–81 (May 5, 1981) (citing 8 U.S.C. § 1103(a)). Those regulations permitted certain categories of aliens who lacked lawful immigration status, including deferred action recipients, to apply for work authorization under certain circumstances. 8 C.F.R. § 109.1(b)(7) (1982). In IRCA, Congress introduced a “comprehensive scheme prohibiting the employment of illegal aliens in the United States,” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002), to be enforced primarily through criminal and civil penalties on employers who knowingly employ an “unauthorized alien.” As relevant here, Congress defined an “unauthorized alien” barred from employment in the United States as an alien who “is not . . . either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.” 8 U.S.C. § 1324a(h)(3) (emphasis added). Shortly after IRCA was enacted, INS denied a petition to rescind its employment authorization regulation, rejecting an argument that “the phrase ‘authorized to be so employed by this Act or the Attorney General’ does not recognize the Attorney General’s authority to grant work authorization except to those aliens who have already been granted specific authorization by the Act.” Employment Authorization; Classes of Aliens Eligible, 52 Fed. Reg. 11 65 38 Op. O.L.C. 39 (2014) Secretary to grant work authorization to particular classes of aliens, see, e.g., 8 U.S.C. § 1158(c)(1)(B) (aliens granted asylum), it places few limitations on the Secretary’s authority to grant work authorization to other classes of aliens. Further, and notably, additional provisions of the INA expressly contemplate that the Secretary may grant work authorization to aliens lacking lawful immigration status—even those who are in active removal proceedings or, in certain circumstances, those who have already received final orders of removal. See id. § 1226(a)(3) (permitting the Secretary to grant work authorization to an otherwise work-eligible alien who has been arrested and detained pending a decision whether to remove the alien from the United States); id. § 1231(a)(7) (permitting the Secretary under certain narrow circumstances to grant work authorization to aliens who have received final orders of removal). Consistent with these provisions, the Secretary has long permitted certain additional classes of aliens who lack lawful immigration status to apply for work authorization, including deferred action recipients who can demonstrate an economic necessity for employment. See 8 C.F.R. § 274a.12(c)(14); see also id. § 274a.12(c)(8) (applicants for asylum), (c)(10) (applicants for cancellation of removal); supra note 11 (discussing 1981 regulations). The Secretary’s authority to suspend the accrual of unlawful presence of deferred action recipients is similarly grounded in the INA. The relevant statutory provision treats an alien as “unlawfully present” for purposes of 8 U.S.C. § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I) if he “is present in the United States after the expiration of the period of stay authorized by the Attorney General.” 8 U.S.C. § 1182(a)(9)(B)(ii). That language contemplates that the Attorney General (and now the Secretary) may authorize an alien to stay in the United States without accruing unlawful pres46,092, 46,093 (Dec. 4, 1987). Because the same statutory phrase refers both to aliens authorized to be employed by the INA and aliens authorized to be employed by the Attorney General, INS concluded that the only way to give effect to both references is to conclude “that Congress, being fully aware of the Attorney General’s authority to promulgate regulations, and approving of the manner in which he has exercised that authority in this matter, defined ‘unauthorized alien’ in such fashion as to exclude aliens who have been authorized employment by the Attorney General through the regulatory process, in addition to those who are authorized employment by statute.” Id.; see Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 844 (1986) (stating that “considerable weight must be accorded” an agency’s “contemporaneous interpretation of the statute it is entrusted to administer”). 66 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens ence under section 1182(a)(9)(B)(i) or (a)(9)(C)(i). And DHS regulations and policy guidance interpret a “period of stay authorized by the Attorney General” to include periods during which an alien has been granted deferred action. See 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2); USCIS Consolidation of Guidance at 42. The final unusual feature of deferred action programs is particular to class-based programs. The breadth of such programs, in combination with the first two features of deferred action, may raise particular concerns about whether immigration officials have undertaken to substantively change the statutory removal system rather than simply adapting its application to individual circumstances. But the salient feature of class-based programs—the establishment of an affirmative application process with threshold eligibility criteria—does not in and of itself cross the line between executing the law and rewriting it. Although every class-wide deferred action program that has been implemented to date has established certain threshold eligibility criteria, each program has also left room for case-by-case determinations, giving immigration officials discretion to deny applications even if the applicant fulfills all of the program criteria. See supra pp. 57–61. Like the establishment of enforcement priorities discussed in Part I, the establishment of threshold eligibility criteria can serve to avoid arbitrary enforcement decisions by individual officers, thereby furthering the goal of ensuring consistency across a large agency. The guarantee of individualized, case-by-case review helps avoid potential concerns that, in establishing such eligibility criteria, the Executive is attempting to rewrite the law by defining new categories of aliens who are automatically entitled to particular immigration relief. See Crowley Caribbean Transp., 37 F.3d at 676–77; see also Chaney, 470 U.S. at 833 n.4. Furthermore, while permitting potentially eligible individuals to apply for an exercise of enforcement discretion is not especially common, many law enforcement agencies have developed programs that invite violators of the law to identify themselves to the authorities in exchange for leniency. 12 For example, since 1978, the Department of Justice’s Antitrust Division has implemented a “leniency program” under which a corporation that reveals an antitrust conspiracy in which it participated may receive a conditional promise that it will not be prosecuted. See Dep’t of Justice, Frequently Asked Questions Regarding the Antitrust Division’s Leniency Program and Model Leniency Letters (Nov. 19, 2008), http://www.justice.gov/ atr/public/criminal/239583.pdf (last visited Nov. 19, 2014); see also Internal Revenue 12 67 38 Op. O.L.C. 39 (2014) Much as is the case with those programs, inviting eligible aliens to identify themselves through an application process may serve the agency’s law enforcement interests by encouraging lower-priority individuals to identify themselves to the agency. In so doing, the process may enable the agency to better focus its scarce resources on higher enforcement priorities. Apart from the considerations just discussed, perhaps the clearest indication that these features of deferred action programs are not per se impermissible is the fact that Congress, aware of these features, has repeatedly enacted legislation appearing to endorse such programs. As discussed above, Congress has not only directed that certain classes of aliens be made eligible for deferred action programs—and in at least one instance, in the case of VAWA beneficiaries, directed the expansion of an existing program—but also ranked evidence of approved deferred action status as evidence of “lawful status” for purposes of the REAL ID Act. These enactments strongly suggest that when DHS in the past has decided to grant deferred action to an individual or class of individuals, it has been acting in a manner consistent with congressional policy “‘rather than embarking on a frolic of its own.’” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 139 (1985) (quoting Red Lion Broad. Co. v. FCC, 395 U.S. 367, 375 (1969)); cf. id. at 137–39 (concluding that Congress acquiesced in an agency’s assertion of regulatory authority by “refus[ing] . . . to overrule” the agency’s view after it was specifically “brought to Congress’[s] attention,” and further finding implicit congressional approval in legislation that appeared to acknowledge the regulatory authority in question); Dames & Moore v. Regan, 453 U.S. 654, 680 (1981) (finding that Congress “implicitly approved the practice of claim settlement by executive agreement” by enacting the International Claims Settlement Act of 1949, which “create[d] a procedure to implement” those very agreements). Manual § 9.5.11.9(2) (Revised IRS Voluntary Disclosure Practice), http://www.irs.gov/ uac/Revised-IRS-Voluntary-Disclosure-Practice (last visited Nov. 19, 2014) (explaining that a taxpayer’s voluntary disclosure of misreported tax information “may result in prosecution not being recommended”); U.S. Marshals Service, Fugitive Safe Surrender FAQs, http://www.usmarshals.gov/safesurrender/faqs.html (last visited Nov. 19, 2014) (stating that fugitives who surrender at designated sites and times under the “Fugitive Safe Surrender” program are likely to receive “favorable consideration”). 68 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens Congress’s apparent endorsement of certain deferred action programs does not mean, of course, that a deferred action program can be lawfully extended to any group of aliens, no matter its characteristics or its scope, and no matter the circumstances in which the program is implemented. Because deferred action, like the prioritization policy discussed above, is an exercise of enforcement discretion rooted in the Secretary’s broad authority to enforce the immigration laws and the President’s duty to take care that the laws are faithfully executed, it is subject to the same four general principles previously discussed. See supra pp. 46–47. Thus, any expansion of deferred action to new classes of aliens must be carefully scrutinized to ensure that it reflects considerations within the agency’s expertise, and that it does not seek to effectively rewrite the laws to match the Executive’s policy preferences, but rather operates in a manner consonant with congressional policy expressed in the statute. See supra p. 46 (citing Youngstown, 343 U.S. at 637, and Nat’l Ass’n of Home Builders, 551 U.S. at 658). Immigration officials cannot abdicate their statutory responsibilities under the guise of exercising enforcement discretion. See supra pp. 46–47 (citing Chaney, 470 U.S. at 833 n.4). And any new deferred action program should leave room for individualized evaluation of whether a particular case warrants the expenditure of resources for enforcement. See supra p. 47 (citing Glickman, 96 F.3d at 1123, and Crowley Caribbean Transp., 37 F.3d at 676–77). Furthermore, because deferred action programs depart in certain respects from more familiar and widespread exercises of enforcement discretion, particularly careful examination is needed to ensure that any proposed expansion of deferred action complies with these general principles, so that the proposed program does not, in effect, cross the line between executing the law and rewriting it. In analyzing whether the proposed programs cross this line, we will draw substantial guidance from Congress’s history of legislation concerning deferred action. In the absence of express statutory guidance, the nature of deferred action programs Congress has implicitly approved by statute helps to shed light on Congress’s own understandings about the permissible uses of deferred action. Those understandings, in turn, help to inform our consideration of whether the proposed deferred action programs are “faithful[]” to the statutory scheme Congress has enacted. U.S. Const. art. II, § 3. 69 38 Op. O.L.C. 39 (2014) C. We now turn to the specifics of DHS’s proposed deferred action programs. DHS has proposed implementing a policy under which an alien could apply for, and would be eligible to receive, deferred action if he or she: (1) is not an enforcement priority under DHS policy; (2) has continuously resided in the United States since before January 1, 2010; (3) is physically present in the United States both when DHS announces its program and at the time of application for deferred action; (4) has a child who is a U.S. citizen or LPR; and (5) presents “no other factors that, in the exercise of discretion, make[] the grant of deferred action inappropriate.” Johnson Deferred Action Memorandum at 4. You have also asked about the permissibility of a similar program that would be open to parents of children who have received deferred action under the DACA program. We first address DHS’s proposal to implement a deferred action program for the parents of U.S. citizens and LPRs, and then turn to the permissibility of the program for parents of DACA recipients in the next subsection. 1. We begin by considering whether the proposed program for the parents of U.S. citizens and LPRs reflects considerations within the agency’s expertise. DHS has offered two justifications for the proposed program for the parents of U.S. citizens and LPRs. First, as noted above, severe resource constraints make it inevitable that DHS will not remove the vast majority of aliens who are unlawfully present in the United States. Consistent with Congress’s instruction, DHS prioritizes the removal of individuals who have significant criminal records, as well as others who present dangers to national security, public safety, or border security. See supra pp. 50–51. Parents with longstanding ties to the country and who have no significant criminal records or other risk factors rank among the agency’s lowest enforcement priorities; absent significant increases in funding, the likelihood that any individual in that category will be determined to warrant the expenditure of severely limited enforcement resources is very low. Second, DHS has explained that the program would serve an important humanitarian interest in keeping parents together with children who are lawfully present in the United States, in situations where 70 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens such parents have demonstrated significant ties to community and family in this country. See Shahoulian E-mail. With respect to DHS’s first justification, the need to efficiently allocate scarce enforcement resources is a quintessential basis for an agency’s exercise of enforcement discretion. See Chaney, 470 U.S. at 831. Because, as discussed earlier, Congress has appropriated only a small fraction of the funds needed for full enforcement, DHS can remove no more than a small fraction of the individuals who are removable under the immigration laws. See supra p. 49. The agency must therefore make choices about which violations of the immigration laws it will prioritize and pursue. And as Chaney makes clear, such choices are entrusted largely to the Executive’s discretion. 470 U.S. at 831. The deferred action program DHS proposes would not, of course, be costless. Processing applications for deferred action and its renewal requires manpower and resources. See Arizona, 132 S. Ct. at 2521 (Scalia, J., concurring in part and dissenting in part). But DHS has informed us that the costs of administering the proposed program would be borne almost entirely by USCIS through the collection of application fees. See Shahoulian E-mail; see also 8 U.S.C. § 1356(m); 8 C.F.R. § 103.7(b)(1)(i)(C), (b)(1)(i)(HH). DHS has indicated that the costs of administering the deferred action program would therefore not detract in any significant way from the resources available to ICE and CBP—the enforcement arms of DHS—which rely on money appropriated by Congress to fund their operations. See Shahoulian E-mail. DHS has explained that, if anything, the proposed deferred action program might increase ICE’s and CBP’s efficiency by in effect using USCIS’s fee-funded resources to enable those enforcement divisions to more easily identify non-priority aliens and focus their resources on pursuing aliens who are strong candidates for removal. See id. The proposed program, in short, might help DHS address its severe resource limitations, and at the very least likely would not exacerbate them. See id. DHS does not, however, attempt to justify the proposed program solely as a cost-saving measure, or suggest that its lack of resources alone is sufficient to justify creating a deferred action program for the proposed class. Rather, as noted above, DHS has explained that the program would also serve a particularized humanitarian interest in promoting family unity by enabling those parents of U.S. citizens and LPRs who are not other71 38 Op. O.L.C. 39 (2014) wise enforcement priorities and who have demonstrated community and family ties in the United States (as evidenced by the length of time they have remained in the country) to remain united with their children in the United States. Like determining how best to respond to resource constraints, determining how to address such “human concerns” in the immigration context is a consideration that is generally understood to fall within DHS’s expertise. Arizona, 132 S. Ct. at 2499. This second justification for the program also appears consonant with congressional policy embodied in the INA. Numerous provisions of the statute reflect a particular concern with uniting aliens with close relatives who have attained lawful immigration status in the United States. See, e.g., Fiallo v. Bell, 430 U.S. 787, 795 n.6 (1977); INS v. Errico, 385 U.S. 214, 220 n.9 (1966) (“‘The legislative history of the Immigration and Nationality Act clearly indicates that the Congress . . . was concerned with the problem of keeping families of United States citizens and immigrants united.’” (quoting H.R. Rep. No. 85-1199, at 7 (1957)). The INA provides a path to lawful status for the parents, as well as other immediate relatives, of U.S. citizens: U.S. citizens aged twenty-one or over may petition for parents to obtain visas that would permit them to enter and permanently reside in the United States, and there is no limit on the overall number of such petitions that may be granted. See 8 U.S.C. § 1151(b)(2)(A)(i); see also Cuellar de Osorio, 134 S. Ct. at 2197–99 (describing the process for obtaining a family-based immigrant visa). And although the INA contains no parallel provision permitting LPRs to petition on behalf of their parents, it does provide a path for LPRs to become citizens, at which point they too can petition to obtain visas for their parents. See, e.g., 8 U.S.C. § 1427(a) (providing that aliens are generally eligible to become naturalized citizens after five years of lawful permanent residence); id. § 1430(a) (alien spouses of U.S. citizens become eligible after three years of lawful permanent residence); Demore v. Kim, 538 U.S. 510, 544 (2003). 13 Additionally, the INA empowers the Attorney The INA does permit LPRs to petition on behalf of their spouses and children even before they have attained citizenship. See 8 U.S.C. § 1153(a)(2). However, the exclusion of LPRs’ parents from this provision does not appear to reflect a congressional judgment that, until they attain citizenship, LPRs lack an interest in being united with their parents comparable to their interest in being united with their other immediate relatives. The distinction between parents and other relatives originated with a 1924 statute that exempt13 72 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens General to cancel the removal of, and adjust to LPR status, aliens who have been physically present in the United States for a continuous period of not less than ten years, exhibit good moral character, have not been convicted of specified offenses, and have immediate relatives who are U.S. citizens or LPRs and who would suffer exceptional hardship from the alien’s removal. 8 U.S.C. § 1229b(b)(1). DHS’s proposal to focus on the parents of U.S. citizens and LPRs thus tracks a congressional concern, expressed in the INA, with uniting the immediate families of individuals who have permanent legal ties to the United States. At the same time, because the temporary relief DHS’s proposed program would confer to such parents is sharply limited in comparison to the benefits Congress has made available through statute, DHS’s proposed program would not operate to circumvent the limits Congress has placed on the availability of those benefits. The statutory provisions discussed above offer the parents of U.S. citizens and LPRs the prospect of permanent lawful status in the United States. The cancellation of removal provision, moreover, offers the prospect of receiving such status immediately, without the delays generally associated with the family-based immigrant visa process. DHS’s proposed program, in contrast, would not grant the parents of U.S. citizens and LPRs any lawful immigration status, provide a path to permanent residence or citizenship, or otherwise confer any legally enforceable entitlement to remain in the United States. ed the wives and minor children of U.S. citizens from immigration quotas, gave “preference status”—eligibility for a specially designated pool of immigrant visas—to other relatives of U.S. citizens, and gave no favorable treatment to the relatives of LPRs. Immigration Act of 1924, Pub. L. No. 68-139, §§ 4(a), 6, 43 Stat. 153, 155–56. In 1928, Congress extended preference status to LPRs’ wives and minor children, reasoning that because such relatives would be eligible for visas without regard to any quota when their LPR relatives became citizens, granting preference status to LPRs’ wives and minor children would “hasten[]” the “family reunion.” S. Rep. No. 70-245, at 2 (1928); see Pub. Res. No. 70-61, 45 Stat. 1009, 1009–10 (1928). The special visa status for wives and children of LPRs thus mirrored, and was designed to complement, the special visa status given to wives and minor children of U.S. citizens. In 1965, Congress eliminated the basis on which the distinction had rested by exempting all “immediate relatives” of U.S. citizens, including parents, from numerical restrictions on immigration. Pub. L. No. 89236, § 1, 79 Stat. 911, 911. But it did not amend eligibility for preference status for relatives of LPRs to reflect that change. We have not been able to discern any rationale for this omission in the legislative history or statutory text of the 1965 law. 73 38 Op. O.L.C. 39 (2014) See USCIS SOP at 3. It is true that, as we have discussed, a grant of deferred action would confer eligibility to apply for and obtain work authorization, pursuant to the Secretary’s statutory authority to grant such authorization and the longstanding regulations promulgated thereunder. See supra pp. 55, 65–66. But unlike the automatic employment eligibility that accompanies LPR status, see 8 U.S.C. § 1324a(h)(3), this authorization could be granted only on a showing of economic necessity, and would last only for the limited duration of the deferred action grant, see 8 C.F.R. § 274a.12(c)(14). The other salient features of the proposal are similarly consonant with congressional policy. The proposed program would focus on parents who are not enforcement priorities under the prioritization policy discussed above—a policy that, as explained earlier, comports with the removal priorities set by Congress. See supra pp. 50–51. The continuous residence requirement is likewise consistent with legislative judgments that extended periods of continuous residence are indicative of strong family and community ties. See IRCA § 201(a), 100 Stat. at 3394 (codified as amended at 8 U.S.C. § 1255a(a)(2)) (granting lawful status to certain aliens unlawfully present in the United States since January 1, 1982); id. § 302(a) (codified as amended at 8 U.S.C. § 1160) (granting similar relief to certain agricultural workers); H.R. Rep. No. 99-682, pt. 1, at 49 (1986) (stating that aliens present in the United States for five years “have become a part of their communities[,] . . . have strong family ties here which include U.S. citizens and lawful residents[,] . . . have built social networks in this country[, and] . . . have contributed to the United States in myriad ways”); S. Rep. No. 99-132, at 16 (1985) (deporting aliens who “have become well settled in this country” would be a “wasteful use of the Immigration and Naturalization Service’s limited enforcement resources”); see also Arizona, 132 S. Ct. at 2499 (noting that “[t]he equities of an individual case” turn on factors “including whether the alien has . . . long ties to the community”). We also do not believe DHS’s proposed program amounts to an abdication of its statutory responsibilities, or a legislative rule overriding the commands of the statute. As discussed earlier, DHS’s severe resource constraints mean that, unless circumstances change, it could not as a practical matter remove the vast majority of removable aliens present in the United States. The fact that the proposed program would defer the 74 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens removal of a subset of these removable aliens—a subset that ranks near the bottom of the list of the agency’s removal priorities—thus does not, by itself, demonstrate that the program amounts to an abdication of DHS’s responsibilities. And the case-by-case discretion given to immigration officials under DHS’s proposed program alleviates potential concerns that DHS has abdicated its statutory enforcement responsibilities with respect to, or created a categorical, rule-like entitlement to immigration relief for, the particular class of aliens eligible for the program. An alien who meets all the criteria for deferred action under the program would receive deferred action only if he or she “present[ed] no other factors that, in the exercise of discretion,” would “make[] the grant of deferred action inappropriate.” Johnson Deferred Action Memorandum at 4. The proposed policy does not specify what would count as such a factor; it thus leaves the relevant USCIS official with substantial discretion to determine whether a grant of deferred action is warranted. In other words, even if an alien is not a removal priority under the proposed policy discussed in Part I, has continuously resided in the United States since before January 1, 2010, is physically present in the country, and is a parent of an LPR or a U.S. citizen, the USCIS official evaluating the alien’s deferred action application must still make a judgment, in the exercise of her discretion, about whether that alien presents any other factor that would make a grant of deferred action inappropriate. This feature of the proposed program ensures that it does not create a categorical entitlement to deferred action that could raise concerns that DHS is either impermissibly attempting to rewrite or categorically declining to enforce the law with respect to a particular group of undocumented aliens. Finally, the proposed deferred action program would resemble in material respects the kinds of deferred action programs Congress has implicitly approved in the past, which provides some indication that the proposal is consonant not only with interests reflected in immigration law as a general matter, but also with congressional understandings about the permissible uses of deferred action. As noted above, the program uses deferred action as an interim measure for a group of aliens to whom Congress has given a prospective entitlement to lawful immigration status. While Congress has provided a path to lawful status for the parents of U.S. citizens and LPRs, the process of obtaining that status “takes time.” Cuellar de Osorio, 134 S. Ct. at 2199. The proposed program would provide a mech75 38 Op. O.L.C. 39 (2014) anism for families to remain together, depending on their circumstances, for some or all of the intervening period. 14 Immigration officials have on several occasions deployed deferred action programs as interim measures for other classes of aliens with prospective entitlements to lawful immigration status, including VAWA self-petitioners, bona fide T and U visa applicants, certain immediate family members of certain U.S. citizens killed in combat, and certain immediate family members of aliens killed on September 11, 2001. As noted above, each of these programs has received Congress’s implicit approval—and, indeed, in the case of VAWA self-petitioners, a direction to expand the program beyond its original bounds. See supra pp. 61–63. 15 In addition, much like these and 14 DHS’s proposed program would likely not permit all potentially eligible parents to remain together with their children for the entire duration of the time until a visa is awarded. In particular, undocumented parents of adult citizens who are physically present in the country would be ineligible to adjust their status without first leaving the country if they had never been “inspected and admitted or paroled into the United States.” 8 U.S.C. § 1255(a) (permitting the Attorney General to adjust to permanent resident status certain aliens present in the United States if they become eligible for immigrant visas). They would thus need to leave the country to obtain a visa at a U.S. consulate abroad. See id. § 1201(a); Cuellar de Osorio, 134 S. Ct. at 2197–99. But once such parents left the country, they would in most instances become subject to the 3- or 10-year bar under 8 U.S.C. § 1182(a)(9)(B)(i) and therefore unable to obtain a visa unless they remained outside the country for the duration of the bar. DHS’s proposed program would nevertheless enable other families to stay together without regard to the 3- or 10-year bar. And even as to those families with parents who would become subject to that bar, the proposed deferred action program would have the effect of reducing the amount of time the family had to spend apart, and could enable them to adjust the timing of their separation according to, for example, their children’s needs for care and support. 15 Several extended voluntary departure programs have been animated by a similar rationale, and the most prominent of these programs also received Congress’s implicit approval. In particular, as noted above, the Family Fairness policy, implemented in 1990, authorized granting extended voluntary departure and work authorization to the estimated 1.5 million spouses and children of aliens granted legal status under IRCA—aliens who would eventually “acquire lawful permanent resident status” and be able to petition on behalf of their family members. Family Fairness Memorandum at 1; see supra p. 57. Later that year, Congress granted the beneficiaries of the Family Fairness program an indefinite stay of deportation. See Immigration Act of 1990, Pub. L. No. 101-649, § 301, 104 Stat. 4978, 5030. Although it did not make that grant of relief effective for nearly a year, Congress clarified that “the delay in effectiveness of this section shall not be construed as reflecting a Congressional belief that the existing family fairness program should be 76 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens other programs Congress has implicitly endorsed, the program serves substantial and particularized humanitarian interests. Removing the parents of U.S. citizens and LPRs—that is, of children who have established permanent legal ties to the United States—would separate them from their nuclear families, potentially for many years, until they were able to secure visas through the path Congress has provided. During that time, both the parents and their U.S. citizen or LPR children would be deprived of both the economic support and the intangible benefits that families provide. We recognize that the proposed program would likely differ in size from these prior deferred action programs. Although DHS has indicated that there is no reliable way to know how many eligible aliens would actually apply for or would be likely to receive deferred action following individualized consideration under the proposed program, it has informed us that approximately 4 million individuals could be eligible to apply. See Shahoulian E-mail. We have thus considered whether the size of the program alone sets it at odds with congressional policy or the Executive’s duties under the Take Care Clause. In the absence of express statutory guidance, it is difficult to say exactly how the program’s potential size bears on its permissibility as an exercise of executive enforcement discretion. But because the size of DHS’s proposed program corresponds to the size of a population to which Congress has granted a prospective entitlement to lawful status without numerical restriction, it seems to us difficult to sustain an argument, based on numbers alone, that DHS’s proposal to grant a limited form of administrative relief as a temporary interim measure exceeds its enforcement discretion under the INA. Furthermore, while the potential size of the program is large, it is nevertheless only a fraction of the approximately 11 million undocumented aliens who remain in the United States each year because DHS lacks the resources to remove them; and, as we have indicated, the program is limited to individuals who would be unlikely to be removed under DHS’s proposed prioritization policy. There is thus little practical danger that the program, simply by virtue of its size, will impede removals that would otherwise occur in its absence. And although we are aware of no prior exercises of deferred modified in any way before such date.” Id. § 301(g). INS’s policies for qualifying Third Preference visa applicants and nurses eligible for H-1 nonimmigrant status likewise extended to aliens with prospective entitlements to lawful status. See supra p. 56. 77 38 Op. O.L.C. 39 (2014) action of the size contemplated here, INS’s 1990 Family Fairness policy, which Congress later implicitly approved, made a comparable fraction of undocumented aliens—approximately four in ten—potentially eligible for discretionary extended voluntary departure relief. Compare CRS Immigration Report at 22 (estimating the Family Fairness policy extended to 1.5 million undocumented aliens), with Office of Policy and Planning, INS, Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990 to 2000 at 10 (2003) (estimating an undocumented alien population of 3.5 million in 1990); see supra notes 5, 15 (discussing extended voluntary departure and Congress’s implicit approval of the Family Fairness policy). This suggests that DHS’s proposed deferred action program is not, simply by virtue of its relative size, inconsistent with what Congress has previously considered a permissible exercise of enforcement discretion in the immigration context. In light of these considerations, we believe the proposed expansion of deferred action to the parents of U.S. citizens and LPRs is lawful. It reflects considerations—responding to resource constraints and to particularized humanitarian concerns arising in the immigration context—that fall within DHS’s expertise. It is consistent with congressional policy, since it focuses on a group—law-abiding parents of lawfully present children who have substantial ties to the community—that Congress itself has granted favorable treatment in the immigration process. The program provides for the exercise of case-by-case discretion, thereby avoiding creating a rule-like entitlement to immigration relief or abdicating DHS’s enforcement responsibilities for a particular class of aliens. And, like several deferred action programs Congress has approved in the past, the proposed program provides interim relief that would prevent particularized harm that could otherwise befall both the beneficiaries of the program and their families. We accordingly conclude that the proposed program would constitute a permissible exercise of DHS’s enforcement discretion under the INA. 2. We now turn to the proposed deferred action program for the parents of DACA recipients. The relevant considerations are, to a certain extent, similar to those discussed above: Like the program for the parents of U.S. 78 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens citizens and LPRs, the proposed program for parents of DACA recipients would respond to severe resource constraints that dramatically limit DHS’s ability to remove aliens who are unlawfully present, and would be limited to individuals who would be unlikely to be removed under DHS’s proposed prioritization policy. And like the proposed program for LPRs and U.S. citizens, the proposed program for DACA parents would preserve a significant measure of case-by-case discretion not to award deferred action even if the general eligibility criteria are satisfied. But the proposed program for parents of DACA recipients is unlike the proposed program for parents of U.S. citizens and LPRs in two critical respects. First, although DHS justifies the proposed program in large part based on considerations of family unity, the parents of DACA recipients are differently situated from the parents of U.S. citizens and LPRs under the family-related provisions of the immigration law. Many provisions of the INA reflect Congress’s general concern with not separating individuals who are legally entitled to live in the United States from their immediate family members. See, e.g., 8 U.S.C. § 1151(b)(2)(A)(i) (permitting citizens to petition for parents, spouses, and children); id. § 1229b(b)(1) (allowing cancellation of removal for relatives of citizens and LPRs). But the immigration laws do not express comparable concern for uniting persons who lack lawful status (or prospective lawful status) in the United States with their families. DACA recipients unquestionably lack lawful status in the United States. See DACA Toolkit at 8 (“Deferred action . . . does not provide you with a lawful status.”). Although they may presumptively remain in the United States, at least for the duration of the grant of deferred action, that grant is both time-limited and contingent, revocable at any time in the agency’s discretion. Extending deferred action to the parents of DACA recipients would therefore expand family-based immigration relief in a manner that deviates in important respects from the immigration system Congress has enacted and the policies that system embodies. Second, as it has been described to us, the proposed deferred action program for the parents of DACA recipients would represent a significant departure from deferred action programs that Congress has implicitly approved in the past. Granting deferred action to the parents of DACA recipients would not operate as an interim measure for individuals to whom Congress has given a prospective entitlement to lawful status. Such 79 38 Op. O.L.C. 39 (2014) parents have no special prospect of obtaining visas, since Congress has not enabled them to self-petition—as it has for VAWA self-petitioners and individuals eligible for T or U visas—or enabled their undocumented children to petition for visas on their behalf. Nor would granting deferred action to parents of DACA recipients, at least in the absence of other factors, serve interests that are comparable to those that have prompted implementation of deferred action programs in the past. Family unity is, as we have discussed, a significant humanitarian concern that underlies many provisions of the INA. But a concern with furthering family unity alone would not justify the proposed program, because in the absence of any family member with lawful status in the United States, it would not explain why that concern should be satisfied by permitting family members to remain in the United States. The decision to grant deferred action to DACA parents thus seems to depend critically on the earlier decision to make deferred action available to their children. But we are aware of no precedent for using deferred action in this way, to respond to humanitarian needs rooted in earlier exercises of deferred action. The logic underlying such an expansion does not have a clear stopping point: It would appear to argue in favor of extending relief not only to parents of DACA recipients, but also to the close relatives of any alien granted deferred action through DACA or any other program, those relatives’ close relatives, and perhaps the relatives (and relatives’ relatives) of any alien granted any form of discretionary relief from removal by the Executive. For these reasons, the proposed deferred action program for the parents of DACA recipients is meaningfully different from the proposed program for the parents of U.S. citizens and LPRs. It does not sound in Congress’s concern for maintaining the integrity of families of individuals legally entitled to live in the United States. And unlike prior deferred action programs in which Congress has acquiesced, it would treat the Executive’s prior decision to extend deferred action to one population as justifying the extension of deferred action to additional populations. DHS, of course, remains free to consider whether to grant deferred action to individual parents of DACA recipients on an ad hoc basis. But in the absence of clearer indications that the proposed class-based deferred action program for DACA parents would be consistent with the congressional policies and priorities embodied in the immigration laws, we conclude that it would not be permissible. 80 Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens III. In sum, for the reasons set forth above, we conclude that DHS’s proposed prioritization policy and its proposed deferred action program for parents of U.S. citizens and lawful permanent residents would be legally permissible, but that the proposed deferred action program for parents of DACA recipients would not be permissible. KARL R. THOMPSON Principal Deputy Assistant Attorney General Office of Legal Counsel 81

Write a legal research memo on the following topic.

O ctober 20, 1977 77-61 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT President’s Authority To Promulgate a Reorganization Plan Involving the Equal Employment Opportunity Commission This is in response to your request for the opinion of this Office on two questions pertaining to the President’s authority to promulgate a reorganization plan involving the Equal Employment Opportunity Commission (EEOC). You have asked, first, whether EEOC is an Agency in the executive branch so as to come within the President’s authority under the Reorganization A ct of 1977; second, whether a reorganization plan can vest in EEO C functions which are presently lodged in the Department o f Labor. For the reasons that follow, we answer the first question in the affirmative; your second question may also be answered in the affirmative, provided certain other conditions of the Reorganization Act o f 1977 are met. EEOC as an Executive Branch Agency Under the current Reorganization Act, the President may provide for the transfer of functions only for present purposes, with respect to “an Executive agency or part thereof.” See 5 U.S.C.A. §§ 902-3 (1977). One prerequisite of a transfer o f functions to EEO C is thus a determination that the agency is an “Executive agency.” We believe that there is little doubt that it is such an “Executive agency.” This result can be reached by two different rationales. First, even the so-called independent regulatory agencies have been considered “Ex­ ecutive” agencies for purposes of the Reorganization Acts. For exam­ ple, even though previous such Acts have provided that reorganization plans could pertain only to agencies “in the executive branch of the Governm ent,” see Reorganization A ct of 1949, §7, 63 Stat. 203, reorga­ nization plans have been proposed by the President, and allowed by Congress, which involved the independent regulatory commissions. See Reorganization Plan No. 3 o f 1961, 75 Stat. 837 (CAB); Reorganization Plan No. 4 o f 1961, 75 Stat. 838 (FTC). The fact that EEOC would 248 similarly come within the present Reorganization A ct is demonstrated by a provision, enacted in 1972 with reference to a Reorganization A ct containing provisions similar to those pertinent here, which indicated that a statutory transfer of functions to EEO C could be aborted by a reorganization plan. Equal Employment A ct of 1972, Pub. L. No. 92261, § 5, 86 Stat. 107, 42 U.S.C. (Supp. V) § 2000e-6(c). Under this rationale, however, a reorganization plan affecting the EEOC could still be subject to certain restrictions if the EEO C were deemed to be an “independent regulatory agency.” See 5 U.S.C.A. § 905(a)(1). We do not believe this to be the case. EEOC was created by Title V II of the Civil Rights A ct of 1964, 42 U.S.C. § 2000e-4 et seq. Its five members are appointed by the President with the advice and consent of the Senate, to staggered 5-year terms; no provision is made for the removal of the members from office. E EO C ’s functions, as contemplated in the 1964 Civil Rights Act, were largely to investigate and to conciliate.1 See 110 Cong. Rec. 7242 (1964) (remarks o f Senator Case); see, also, M cGriff v. A. O. Smith Corporation, 51 F.R.D. 479, 48283 (D.S. Car. 1971). Congress clearly intended that EEOC should not be vested with any power to adjudicate or to issue enforcement orders. See 110 Cong. Rec. 6543 (1964) (remarks of Senator Humphrey); Fekete v. United States Steel Corporation, 424 F. 2d 331, 336 (3rd Cir. 1970). Moreover, while EEOC is empowered to issue guidelines, they are not regarded as regulations having the force of law. See, General Electric Company v. Gilbert, 97 S. Ct. 401, 410-11 (1976). The lack of any quasi-adjudicatory or quasi-legislative functions vested in EEO C leads, in our view, to a conclusion that it is a part o f the executive branch. As the Supreme Court indicated in Humphrey’s Executor v. United States, 295 U.S. 602, 624 (1935), and Wiener v. United States, 357 U.S. 349, 353-354 (1958), the inferences to be drawn as to congressional intent on this matter rest largely on the functions that the Agency is to perform. In those cases the quasi-legislative or quasi-judicial functions lodged by Congress in the particular agencies led to a conclusion by the Court that Congress meant for the agencies to be independent; otherwise, the agencies could not perform their required duties free of Executive influence. The lack of such functions in EEO C and the consequent absence of any need to be independent of the Executive suggests that Congress meant for EEOC to be subject to Executive control. Other considerations support this result. First, it would raise serious constitutional problems for an agency, shorn of any quasi-judicial or quasi-legislative authority, to be set apart from the Executive; it cannot be assumed that Congress would lightly intend such a result. M oreover, there is no provision in the 1964 Civil Rights Act for the removal of EEOC members for neglect of duty or malfeasance in office. Such a 1 In 1972 Congress expanded EEO C’s powers by allowing it to bring certain enforce­ ment actions. See 42 U.S.C. (Supp. V) § 2000e-5. 249 provision has been customarily included in statutes setting up regula­ tory agencies intended to be independent of Executive control, See, e.g., 29 U.S.C. § 153(a) (NLRB); 49 U.S.C. § 1321(a)(2)(CAB), except for those statutes passed in the interval between Myers v. United States, 272 U.S. 52 (1926), and Humphrey, see 15 U.S.C. 78d (SEC); 47 U.S.C. 154 (FCC). While Wiener v. United States, supra, held that the absence of a specific provision for removal for cause does not necessarily imply that the officer is subject to Executive control, the fact that such a provision is not contained in Title V II of the Civil Rights Act seriously weakens that argument when compared to the statutes creating other regulatory agencies. The legislative history o f the 1964 Civil Rights Act does not suggest a contrary result. Albeit, there are references in the history which could be taken to indicate a legislative belief that EEOC was to be an independent Agency. For example, the House committee report states that the “Commission will receive the usual salaries of members of independent regulatory agencies.” H.R. Rep. No. 914, 88th Cong., 1st Sess. 28 (1963). Senator Hum phrey also stated that the EEOC statute would be a “departure from the usual statutory scheme for independent regulatory agencies.” 110 Cong. Rec. 6548 (1964). These limited re­ marks, however, do not shed any additional light on an intent that EE O C was to be an independent Agency. If Congress had intended this result, it presumably would have so indicated more clearly and explicit­ ly, particularly since it must have been aware that the “most reliable factor” for drawing inferences as to independence—that of the agency’s functions—would lead to a contrary conclusion. Wiener v. United States, supra, at 353. In addition, it is not without significance that those opposed to the Civil Rights Act referred, without rebuttal, to EEO C as part of the executive branch. See 110 Cong. Rec. 7561, 7776, 8442 (1964) (remarks o f Senators Thurmond, Tower, and Hill). W e thus conclude that EEO C is an Agency within the executive branch. This conclusion is consistent with earlier opinions of this Office as to the status of EEOC. Transfer of Functions from the Department o f Labor The conclusion that E E O C is subject to the President’s authority under the Reorganization A ct of 1977 is not the only condition for a transfer of functions from the Department o f Labor to EEOC. One other prerequisite is that th e Department of Labor must be an Execu­ tive agency—which, of course, it is. Two other general substantive limitations must also be m et before a transfer of functions can be accomplished. First, the President must find that changes in the organi­ zation of agencies are necessary to carry out the policies set forth in 5 U.S.C. § 901(a); this is not so much a legal determination as it is a practical one. Second, a reorganization plan may not transgress the limitations set forth in 5 U.S.C. § 905. While some legal issues may be 250 presented here, they can properly be analyzed only in light of the particular changes which are proposed. If you desire further advice on this matter, we will be happy to evaluate any plan’s conformance to the provisions in 5 U.S.C. § 905. L eo n U lm an Deputy Assistant Attorney General Office o f Legal Counsel 251

Write a legal research memo on the following topic.

Statutory Authority to Contract With the Private Sector for Secure Facilities T h e F ederal B ureau o f Prisons has statutory authority to contract with the private se cto r for secure facilities. March 25, 1992 M e m o r a n d u m O p in io n f o r t h e D ir e c t o r F e d e r a l B u r e a u o f P r is o n s This memorandum responds to your request for our opinion whether the Federal Bureau of Prisons (“BOP”) has statutory authority to contract with the private sector for secure facilities.1 The General Accounting Office (“GAO”) has concluded that BOP lacks such authority;2 BOP has taken the opposite view.3 For the reasons explained below, we conclude that BOP has statutory authority to contract with the private sector for secure facilities. I. BOP was established in the Department of Justice in 1930 to provide a central federal organization responsible for the care and treatment of federal prisoners. H.R. Rep. No. 106, 71st Cong., 2d Sess. 1 (1930). BOP has the authority and responsibility under 18 U.S.C. § 3621(b) to “designate the place of . . . imprisonment” for prisoners who have been sentenced to a term of imprisonment under relevant federal statutes. BOP “may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau [of Prisons], whether main­ tained by the Federal Government or otherwise.” 18 U.S.C. § 3621(b).4 1 S e e Memorandum for J. Michael Luttig, Assistant Attorney General, Office of Legal Counsel, from J. M ichael Quinlan, Director, Federal Bureau of Prisons (Apr. 26,1991) (“Opinion Request” ). 2GAO, P rivate P risons, C o st S a vin g s a n d BO P 's S ta tu to ry A u th o rity N e e d to b e R esolved: R e p o rt to the C hairm an, Subcom m . on Regulation, B usiness O pportunities a n d Energy, H ouse C om m , on S m a ll B u sin ess (Feb. 1991) (“GAO Report”). 3S e e Opinion Request at 1; Memorandum for J. Michael Quinlan, Director, from Clair A. Cripe, G en­ eral Counsel, Federal Bureau of Prisons at 4 (Oct. 14, 1988) (“ 1988 M emorandum” ); Memorandum for Norman A. Carlson, Director, from Clair A. Cripe, General Counsel, Federal Bureau o f Prisons (June 10, 1983), rep rin ted in P riva tiza tio n o f C orrections: H earings B efore the Subcom m . on Courts, C ivil L ib e r ­ ties, a n d the A d m in istra tio n o f Ju stice o f the H ouse Com m , on the Ju d icia ry, 99th Cong., 1st & 2d Sess. 150 (1985-86) (“Privatization Hearing”). ‘ Section 3621(b) is applicable to those convicted of offenses committed on or after November 1, 1987. Continued 65 BOP has consistently taken the position that the language of section 3621(b) — especially as it refers to facilities “whether maintained by the Federal Government or otherwise” — allows it to place federal prisoners in facilities operated by the private sector as well as those run by federal, state, or local authorities. See Opinion Request at 1; 1988 Memorandum at 4; Privatization Hearing at 150. It has relied for this conclusion on the plain language of the statute and on general principles of federal procurement law under which executive agencies may enter into contracts with the private sector. See Opinion Request at 1; 1988 Memorandum at 2-3; Privatization Hearing at 149-50; Bureau o f Prisons and the U.S. Parole Commission: Over­ sight Hearing Before the Subcomm. on Courts, Civil Liberties, and the Administration o f Justice o f the House Comm, on the Judiciary, 99th Cong., 1st Sess. 16-17 (1985) (“1985 Hearing”); see also Privatization Toward More Effective Government: Report of the President’s Commission on Privatization 147 (Mar. 1988) (“President’s Commission”).5 GAO, however, has concluded that, at least as to secure facilities, the statute’s reference to facilities “maintained by the Federal Government or otherwise” includes only federal, state, and local facilities, but not facilities operated by the private sector. See GAO Report at 45-50. GAO argues that there is no evidence that Congress contemplated private incarceration of federal prisoners except in limited circumstances involving residential com­ munity treatment centers such as halfway houses. Id. at 48-49.6 GAO contends that the authority in section 3621(b) to place prisoners in any facil­ ity “whether maintained by the Federal Government or otherwise” is ‘ (....continued) S e e 18 U.S.C. § 3621 note. It is based on former 18 U.S.C. § 4082(b), reprinted in 18 U.S.C. § 4082 note, which governs as to offenses committed before November 1, 1987. Former section 4082(b) provided in part that “ [t]he Attorney General may designate as a place o f confinement any available, suitable, and appropriate institution or facility, whether maintained by the Federal Government or otherwise." Refer­ ences to section 4082 in this memorandum should be understood to refer to former section 4082. Our analysis in this m em orandum applies to the authority to designate the place o f incarceration under both section 3621(b) and form er section 4082(b). References in this memorandum to the history of section 3621(b) should be understood to include its predecessor statutes. 5O ne writer has claimed that BOP’s former director, Norman A. Carlson, testified to the contrary in a 1985 H earing. S e e Ira P. Robbins, T h e Legal D im en sio n s o f P rivate Incarceration 399 n.940 (1988) (“ Robbins”). However, Robbins quotes only a portion of Carlson’s remarks. In context, it is plain that Carlson stated that he was unsure, without the benefit of advice of counsel, whether BOP could privatize “one o f the existin g 45 institutions.” 1985 Hearing at 17 (em phasis added). He stated unequivocally his view that BOP has “statutory authority in [its] enabling legislation in title 18 to contract with State, local or private agencies for the care and custody of offenders. I think the enabling legislation gives us that authority.” Id. at 16. Carlson further clarified his position in a 1986 hearing: Although I raised some question [regarding the legal authority to contract for an entire facil­ ity] when I testified before this subcommittee in March o f 1985, our General Counsel advises me that we currently have the necessary authority to contract for the management of an entire facility under 18 U.S.C. § 4082. This law allows the Attorney General to designate as a place o f confinem ent “any available, suitable, and appropriate institution or facility, whether main­ tained by the Federal Government or otherwise.” Privatization Hearing at 141. 6 A residential com m unity treatment center is a pre-release facility to which a prisoner may be trans­ ferred in order to be assisted in becoming re-established in the community. S. Rep. No. 613, 89th Cong., 1st Sess. 7 (1965) (“S. Rep. No. 613”). Such facilities are contrasted with secure facilities used to house prisoners who “remain a distinct threat to the community." Id. at 7-8. 66 circumscribed by 18 U.S.C. § 4002 (authorizing the Attorney General to contract for the incarceration of federal prisoners with states and localities) and 18 U.S.C. § 4003 (permitting the Attorney General to cause new federal facilities to be erected), which in GAO’s view outline the only two options available to BOP for obtaining incarceration facilities. GAO Report at 46-48.7 II. We begin our analysis with the language of the statute. As the Supreme Court has recently said, in construing a statute the one “cardinal canon be­ fore all others,” is that we must “presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut N at’l Bank v. Germain, 503 U.S. 249, 253-54 (1992). “When the words of a statute are unambiguous, then, this first canon is also the last: ‘[the] inquiry is com­ plete.’” Id. at 254 (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)). The plain language of section 3621(b) gives BOP open-ended authority to place federal prisoners in “any available penal or correctional facility” that meets minimum standards of health and habitability without regard to what entity operates the prison. As if to emphasize the breadth of BOP’s author­ ity to use “any available facility,” Congress expressly noted that such facilities could be those “maintained by the Federal Government or otherwise.” The words “or otherwise” are not qualified or defined. They are most obviously read to include (as the statute has already described) any penal or correc­ tional facility — without regard to whether it is maintained by a state, local, or private entity — as long as it meets “minimum standards of health and habitability established by the Bureau.” In short, there is nothing in the language of section 3621(b) that limits BOP’s placement authority to those facilities operated by the federal government, states, or localities. Based on the well-recognized canon of statutory construction referred to above, we believe that the plain language of section 3621(b) is dispositive as to BOP’s authority to place prisoners in facilities operated by the private sector. Although GAO concedes that the plain language of section 3621(b) does not limit BOP’s choice of prison operators, GAO Report at 48, GAO asserts that section 3621(b)’s legislative history establishes that Congress did not authorize placing federal prisoners in private secure facilities such as are at issue here. It contends that 7 Section 4002 o f title 18 provides in part: For the purpose of providing suitable quarters for the safekeeping, care, and subsistence of all persons held under authority of any enactment o f Congress, the Attorney General may con­ tract, for a period not exceeding three years, with the proper authorities of any State, Terri­ tory, or political subdivision thereof, for the imprisonment, subsistence, care, and proper em ­ ployment o f such persons. Section 4003 provides that if the authorities of a state, territory, or political subdivision thereof are unable or unwilling to enter into such contracts or “if there are no suitable or sufficient facilities available at reasonable cost, the Attorney General may select a site . . . and cause [an appropriate facility] to be erected " 67 [njothing in the legislative history of this provision suggests that Congress ever contemplated having private parties oper­ ate adult secure facilities. Rather, it appears that Congress’ intention in enacting the provision concerning places of con­ finement was simply to clarify that the Attorney General would have the power to choose the places prisoners would be con­ fined, which at that time were limited to federal or state and local institutions. GAO Report at 48. In light of the plain language of section 3621(b), we think GAO’s conclu­ sion that BOP lacks the authority to designate private secure facilities — bised on the absence of comment on that issue in the legislative record — is an incorrect reading of the statute.8 Moreover, even if we were to rely on tie legislative history of section 3621(b) to determine BOP’s authority to place prisoners in privately operated facilities, we find nothing in the legis­ lative history of section 3621(b) to indicate that Congress intended to preclude the use of such facilities to incarcerate federal prisoners. The language now contained in section 3621(b) originated in the Act of May 14, 1930, Pub. L. No. 71-218, 46 Stat. 325 (“1930 Act”), and was adopted to resolve an ambi­ guity as to who had the power to designate the place of confinement of federal prisoners. S. Rep. No. 533, 71st Cong., 2d Sess. 2 (1930) (“S. Rep. No. 533”) (statement of the Attorney General). It authorized the Attorney General to “designate any available, suitable, and appropriate institutions, whether maintained by the Federal Government or otherwise.”9 The lan­ guage enacted in 1930 has remained substantially unchanged through its present codification in 18 U.S.C. § 3621(b).10 During the various reenact­ ments of the provision, there was never any indication that the power to designate the place of confinement was limited to designation of federal, state, or local facilities. See, e.g., S. Rep. No. 225, 98th Cong., 1st Sess. 141 8 We note that while GAO reports are often persuasive in resolving legal issues, they, like opinions of the C om ptroller General, are not binding on the executive branch. S e e Memorandum for Donald B. Ayer, D eputy Attorney G eneral, from J. M ichael Luttig, Principal Deputy Assistant Attorney General, Office o f Legal Counsel at 8 (Dec. 18, 1989) (“This Office has never regarded the legal opinions o f the C om ptroller General as binding upon the Executive.’’); R e im b u rse m e n t fo r D eta il o f J u d g e A d v o c a te G e n e ra l C o rp s P e r so n n e l to a U nited S ta te s A tto rn e y 's O ffice, 13 Op. O.L.C. 188, 189 n.2 (1989) (“The C om ptroller General is an officer o f the legislative branch, see B ow sher v. S yn a r, 478 U.S. 714, 727-32 (1986), and historically, the executive branch has not considered itself bound by the C om ptrol­ ler G eneral’s legal opinions if they conflict with the legal opinions o f the Attorney General and the Office o f Legal Counsel.” ). ’ This language, contained in section 7 o f the 1930 Act, was originally codified at 18 U.S.C. § 753f, see 18 U.S.C. § 4082 note, and was later reenacted in modified form and codified at form er 18 U.S.C. § 4082(b). S e e su p ra note 4. 10 Form er section 4082(b) authorized the Attorney General to designate the place o f incarceration for federal prisoners. Section 3621(b) gives that authority to BOP, a component o f the Justice Department. The change w as not intended to affect the authority with regard to place of confinement, but rather only to sim plify the adm inistration o f the prison system. S. Rep. No. 225, 98th Cong., 1st Sess. 141 (1983). 68 (1983) (“The designated penal or correctional facility need not be . . . main­ tained’ by the Federal Government.”). On the contrary, there is evidence in the legislative history of section 3621(b) that at least after a 1965 amendment Congress specifically antici­ pated that BOP would designate privately operated facilities as places of incarceration. In 1965 Congress amended the designation provision to allow designation of a “facility” as well as an “institution.” Act of Sept. 10, 1965, Pub. L. No. 89-176, 79 Stat. 674 (former § 4082(b), reprinted in 18 U.S.C. § 4082 note). The word “facility” was defined to “include a residential com­ munity treatment center.” Id. at 675 (former § 4082(g), reprinted in 18 U.S.C. § 4082 note).11 The legislative history of former section 4082(g) indicates that by enacting that definition Congress intended that “facility” would include community treatment centers such as those already being used to place juvenile offenders. See S. Rep. No. 613 at 3-4. As GAO concedes, GAO Report at 23, at least one of those juvenile facilities was being operated by contract with a nongovernmental entity: The residential community treatment centers, to which the bill authorizes the Attorney General to commit and transfer pris­ oners, are similar to the so-called halfway houses now operated by the Department of Justice for juvenile and youthful offend­ ers. . . . . . . The halfway houses are operated under different plans. . . . The New York City center is operated under contract by Spring­ field University. S. Rep. No. 613 at 3-4 (emphasis added). According to the Senate Report, Congress envisioned that “under the bill’s authority to use community cen­ ters for older types of prisoners a similar variety o f organizational plans will be adopted.” Id. at 4 (emphasis added). Accordingly, for many years BOP has, “with the knowledge of Congress,” contracted “for the placement of lower security inmates in private facilities, particularly contract Community Treatment Centers.” 1985 Hearing at 2223 (Testimony of Norman A. Carlson, Director, BOP). See also id. at 16-17 (“Today we have . . . nearly 2,500 [federal] inmates who are in halfway houses. . . . We contract with State, local and private agencies for this 11The definition of "facility" in former section 4082(g) did not lim it application o f the term to residen­ tial community treatment centers. S e e 2A Norman J. Singer, S u th e rla n d S ta tu to ry C o n stru c tio n § 47.07, at 152 (3d ed. 1992 rev.) ("Sutherland”) (“ [T]he word ‘includes’ . . . conveys the conclusion that there are other items includable, though not specifically enumerated.”). In any event, Congress deleted the definition o f “facility” when it substantially reenacted section 4082(b) in section 3621(b). Thus, particularly as it appears in section 3621(b), “facility” is not limited to residential com munity treatm ent centers. We reject the suggestion to the contrary in Robbins at 412-13. 69 service.”). As Director Carlson testified in 1986, “[s]ince 1981, the Bureau of Prisons has relied solely on the private sector to provide prerelease hous­ ing through its community treatment center programs.” Privatization Hearing at 132. In 1986, BOP “contracted] with 330 Community Treatment Centers [“CTCs”], 234 of which [were] privately run. Over 3,000 Federal inmates [were] in these CTCs. . . . In 1984, approximately 80 percent of offenders who were serving sentences of over six months and who were released to the community were released through contract CTCs.” Id. at 168 (BOP staff position paper). GAO apparently does not dispute BOP’s authority to enter into private contracts for residential community facilities. See generally GAO Report at 48-49; see also Robbins at 412. GAO does not believe, however, that the text and legislative history of the 1965 amendment support the conclusion that Congress anticipated use of private secure facilities. It reasons that the Attorney General had specific statutory authority to contract for juvenile residential community treatment centers. See 18 U.S.C. § 5040.12 Thus, in GAO’s view, the 1965 amendment does not demonstrate Congress’s view that the Attorney General already had authority to contract for private incar­ ceration facilities, and, at most, it provided that authority for adult residential community facilities. See also Robbins at 400 (“[T]he meaning of the phrase ‘or otherwise’ has changed, but only to the rather limited extent of permit­ ting [BOP] to contract with private corporations for the confinement of federal prisoners in certain special facilities, such as residential community-treatment centers.”).13 GAO’s response misses the point and ignores the statute’s plain language. Former section 4082(b), as amended in 1965, gave the Attorney General the 12Section 5040 provides in part that “ [t]he Attorney General may contract with any public or pri­ v ate agency o r in d ividual and such com m unity-based facilities as halfway houses and foster hom es fo r the . . . custody and care of juveniles in his custody.” Provisions authorizing such private contracts have been in effect since 1938. See Juvenile Justice and Delinquency Act of 1974, Pub. L. No. 93-415, § 510, 88 Stat. 1109, 1138 (1974); Act o f June 16, 1938, ch. 486, § 6, 52 Stat. 764,766. ‘’ Robbins contends that because the precursors of section 3621(b) and sections 4002 and 4003 were enacted together, s e e 1930 Act §§ 3 ,4 , & 7, the “or otherwise” language of section 3621(b) can only be interpreted as referring to institutions that were authorized by the precursors of sections 4002 and 4003, i.e., federal, state, local, or other public institutions. Robbins at 405-06. He then reasons that the 1965 am endm ent only broadened the authority now contained in section 3621 (b) to include the power to con­ tract for residential com m unity treatment centers: Thus, although section 4082(b) w as expanded to allow the Attorney General to confine adult federal prisoners in privately run facilities, Congress contemplated such action only with respect to qualified pre-release prisoners in residential community-treatment centers. Con­ gress did not intend the amendment to be a broad grant of authority to place adult federal prisoners in all types o f privately run facilities. Id. at 412-13 (footnote omitted). Robbins places great w eight on the fact that the precursors o f section 3621(b) and sections 4002 and 4003 w ere initially enacted in the sam e public law. S e e id. at 405. However, these sections subse­ quently have been reenacted, amended, and recodified in separate locations in the United States Code. S ectio n 3621(b) is codified in subchapter C (Im prisonm ent) o f chapter 229 o f title 18, entitled “P ostsentence Adm inistration." Sections 4002 and 4003 are codified in chapter 301 o f title 18, entitled “G eneral Provisions,” which includes a number o f loosely-related provisions. See, e.g ., § 4001 (Lim i­ tation on detention; control o f prisons); § 4004 (Oaths and acknowledgments); § 4005 (Medical relief; expenses). The m ere fact that these sections were initially enacted together, without more, does not require that they should be construed in a like manner. 70 authority to place a federal prisoner in a “facility” including, but not limited to, a residential community treatment center. The Senate Report indicates that Congress expected the Attorney General to use the same kinds of ar­ rangements for the adult residential facilities contemplated by the 1965 amendment as already existed in connection with similar facilities for juve­ nile offenders, at least one of which involved a contract with a nongovernmental entity. S. Rep. No. 613 at 3-4 (under the “authority to use community centers for older types of prisoners a similar variety of organiza­ tional plans will be adopted”). Yet Congress apparently saw no need to provide additional authority beyond that inherent in the designation provi­ sion itself to allow the Attorney General to enter into contracts with the private sector for adult facilities. This indicates that Congress believed the Attorney General had the authority under former section 4082(b) to enter into such contracts. There is, moreover, no statutory basis ih section 3621(b) for distinguish­ ing between residential community facilities and secure facilities. Because the plain language of section 3621(b) allows BOP to designate “any avail­ able penal or correctional facility,” we are unwilling to find a limitation on that designation authority based on legislative history. Moreover, the subse­ quent deletion of the definition of “facility” further undermines the argument that Congress intended to distinguish between residential community facili­ ties and other kinds of facilities. See supra note l l . 14 III. GAO also contends that the language of section 3621(b) can only be understood in conjunction with 18 U.S.C. § 4002, which explicitly autho­ rizes the Attorney General to contract with states and localities for the “imprisonment, subsistence, care, and proper employment” of federal pris­ oners, and 18 U.S.C. § 4003, which permits the Attorney General to cause appropriate facilities to be erected. See supra note 7. These statutes do not mention contracts with the private sector. GAO argues that sections 4002 and 4003 detail the only two courses of action the Attorney General and, by inference, BOP may take to provide incarceration facilities, and thus provide a statutory limit on the otherwise broad language of section 3621(b). GAO Report at 47-48 & n.8. GAO invokes the maxim of expressio urtius est exclusio alterius15 to conclude that because Congress addressed “two courses of action the federal government may use in order to obtain incarceration facilities” in 14We also note that GAO’s construction of the 1965 amendment would mean that the phrase “m ain­ tained by the federal government or otherwise” would have two different meanings at the same time: it would mean federal, state, or local government “institutions," but federal, state, local, o r p r iv a te “facili­ ties." 15 E xpressio u nius est exclusio alteriu s means “the expression of one thing is the exclusion o f another.” B la c k ’s Law D ictio n a ry 581 (6th ed. 1990). Under the maxim o f expressio unius, where a “form o f conduct, the manner o f its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions.” Sutherland § 47.23, at 216 (footnotes omitted). 71 some detail, the “clear inference is that Congress intended to preclude any ar­ rangement not expressly authorized” by those sections. Id. at 47. As an initial matter, we question whether application of the expressio unius maxim is appropriate in these circumstances. The statutes at issue here are both affirmative grants of authority. The premise of the maxim — that the expression of one thing is the exclusion of another — simply does not apply where the expressions of limitation are set up against an addi­ tional affirmative grant of authority. The maxim, it seems to us, is more properly reserved for those circumstances in which the issue is whether the enumeration of items is exhaustive of the authority provided in the absence of other grants of authority. It is quite something else to apply the maxim, as GAO would have us do, to conclude that limitations on a particular grant of authority should also limit a separate grant of authority. We also note that the maxim of expressio unius is not a rule of substan­ tive law, but a rule of statutory cbnstruction based on ‘“ logic and common sense.” ’ Sutherland § 47.24, at 228 (quoting Herbert Broom, A Selection o f Legal Maxims 453 (10th ed. 1939)). It embodies a “presumption that . . . Congress intended to deny all powers not expressly enumerated” and it “should be invoked only when other aids to interpretation suggest that the language at issue was meant to be exclusive.” Bailey v. Federal Intermedi­ ate Credit Bank, 788 F.2d 498, 500 (8th Cir.) cert, denied, 479 U.S. 915 (1986). Application of the presumption generally occurs where ‘“ there [is] some evidence the legislature intended [the presumption’s] . . . application lest it [should] prevail as a rule o f construction despite the reason for and the spirit of the enactment.’” Sutherland § 47.25, at 234 (alteration in origi­ nal) (quoting Columbia Hospital A ss’n. v. City o f Milwaukee, 151 N.W.2d 750, 754 (1967)). See also National R.R. Passenger Corp. v. National Ass’n o f R.R. Passengers, 414 U.S. 453, 458 (1974) (expressio unius maxim “must yield to clear contrary evidence of legislative intent.”).16 Here, the presumption suggested by the expressio unius maxim is under­ mined by the fact that nothing in the text or legislative history of sections 4002 and 4003 confirms the negative inference that Congress intended by the grants of contracting authority to limit BOP’s unqualified section 3621 (b) power to designate the place of incarceration of federal prisoners. Sections 4002 and 4003, by their terms, are permissive rather than exclusive. Section 4002 provides that the Attorney General “may contract .. . with the proper authorities of any State, Territory, or political subdivision thereof’ in order to “provid[e] suitable quarters for the safekeeping, care, and subsistence” of “ T his Office has noted on numerous occasions that “[i]n attempting to assess congressional intent, the e x p re ssio u n iu s m axim m ay serve as a guide to that intent, but it is inconclusive. Other factors, including . . . the nature o f the legislation, and the legislative history, must also be considered in the effort to discern congressional intent.” A pplicability o f C erta in C ross-C utting S tatutes to B lock G rants U nder the O m n i­ b u s B u d g e t R e c o n c ilia tio n A c t o f 1981 , 6 Op. O.L.C. 83,105 (1982)(footnote omitted). See a lso P aper­ w o rk R e d u c tio n A c t o f 1 9 8 0 , 6 Op. O .L .C . 388, 407 (1982) (“The application o f the [expressio u n iu s] m axim is m ore persuasive when the language of the statute, its legislative history, and other factors point to the sam e result.” ). 72 federal prisoners. Id. (emphasis added). Alternatively, under section 4003 the Attorney General “may . . . cause to be erected” a suitable federal facil­ ity. Id. (emphasis added). Nothing in these sections or anywhere else in BOP’s enabling legislation could be said to prohibit contracting with the private sector or to establish statutory requirements that would be at vari­ ance with such private contracts. The legislative history of sections 4002 and 4003 indicates that these provisions were enacted specifically to address particular problems in con­ nection with the incarceration of federal prisoners in state and local facilities. Sections 4002 and 4003 were enacted in response to a shortage of prison space for federal prisoners and the lack of a central administrative organiza­ tion to oversee the disposition of such prisoners. See S. Rep. No. 533 at 2 (statement of the Attorney General). Although the federal government was already relying heavily on state and local facilities for the incarceration of federal prisoners, it was “powerless to remedy the deplorable conditions of filth, contamination, and idleness which [were] present in most of the anti­ quated jails of the country” and was “obliged to pay the States the rates they charge[d] for boarding Federal prisoners, even though they may be exorbi­ tant.” Id. In response, section 3 of the 1930 Act, the precursor to section 4002, placed specific limitations and requirements on contracts with states and local governments. Section 4 of the 1930 Act, now substantially contained in section 4003, was enacted because emergency conditions and the large number of federal prisoners in certain districts made it desirable for the Department of Justice to have the authority to provide prisons of its own. See S. Rep. No. 533 at 3. Because these provisions were enacted to address specific circumstances involving the incarceration of federal prisoners in federal, state, and local facilities, Congress’s failure to address contracts with the private sector is not surprising, and does not reflect an intention to prohibit such contracts.17 The expressio unius argument is further undermined because BOP does not, as a general matter of federal contracting law, need specific statutory authorization to contract with the private sector. The general rule is that an agency may use contracts with the private sector to carry out its statutory mission as long as the contract is not “specifically prohibited by statute” or “at variance with required statutory provisions or procedures.” 1 Ralph C. Nash, Jr. & John Cibinic, Jr., Federal Procurement Law 5, 10 (1977) (“Nash & Cibinic”). As these commentators have explained: ’’ The argument that the Bureau’s 3621(b) designation power is limited by the options spelled out in sections 4002 and 4003 is also undermined by several provisions in BO P’s enabling legislation that authorize other permissible places of prisoner incarceration. Section 4125(b) of title 18 authorizes the Attorney General to “establish, equip, and maintain [work] camps upon sites selected by him . . . and designate such cam ps as places for confinement of persons convicted o f ’ federal offenses. In addition, the Attorney General may use inactive Department of Defense facilities as prisons. Department of Justice Appropriation Authorization Act, Fiscal Year 1979, Pub. L. No. 95-624, § 9, 92 Stat. 3459, 3463 (1978), rep rin ted in 18 U.S C. § 4001 note. Thus, sections 4002 and 4003 do not in fact contain all the options available to the Attorney General in designating places of incarceration. 73 The authority of the executive to use contracts in carrying out authorized programs is . . . generally assumed in the absence of express statutory prohibitions or limitations. Some statutes contain specific authorization to use contracts, others are si­ lent on the matter and, in some very rare cases, statutes require the use of contracts. However, the executive agencies nor­ mally have the discretion to decide whether to accomplish their objectives by contract or through the use of Government employees. Id. at 5. The courts have recognized that government agencies have broad discretionary powers in carrying out their functions, including the authority to contract for services when it is determined to be in the agency’s interest. See, e.g.. Local 2017, AFGE v. Brown, 680 F.2d 722 (11th Cir. 1982) cert, denied, 459 U.S. 1104 (1983); Local 2855, AFGE v. United States, 602 F.2d 574 (3d Cir. 1979). Thus, the power of an agency to contract for services is not dependent on specific authority to enter into such contracts. See Memo­ randum for Clair A. Cripe, General Counsel, Federal Bureau of Prisons, from Ralph Tarr, Deputy Assistant Attorney General, Office of Legal Coun­ sel (Dec. 30, 1982).18 It is well established that BOP has authority to contract with the private sector for various services in connection with incarceration facilities. See Opinion Request (citing 40 U.S.C. § 471; 41 U.S.C. § 252(a); 48 C.F.R. §§ 1.101, 2.101); Privatization Hearing at 132-33, 170-72. For example, BOP has entered into private contracts for food service and medical, educational, and psychological services, and for consulting and other services in connec­ tion with Federal Prison Industries. Privatization Hearing at 132-33, 170-72. See also President’s Commission at 147 (“Contracting for services and nonsecure facilities is a common practice in the field of corrections. Virtu­ ally all the individual components of corrections (such as food services, medical services and counseling, educational and vocational training, recre­ ation, maintenance, transportation, security and industrial programs) have been provided by private contractors.”). GAO claims that it does not dispute BOP’s authority generally to contract with the private sector for goods and services. See GAO Report at 50 (“As a general proposition, an agency may use contracts to carry out any activity 18 We do not suggest that there are no limitations on the authority of a governmental entity to contract for goods or services. For example, a governmental entity may not enter into a contract that is specifi­ cally prohibited by statute or that is at variance with statutory provisions or procedures. S e e 1 Nash & C ibinic at 10. In addition, some functions are considered to be inherently governmental in nature and m ay not be delegated to nongovernmental entities. S e e OMB Circular A-76 (Aug. 4, 1983). This m em orandum also does not address possible constitutional limitations on contracting. S e e gen era lly C o n stitu tio n a l L im n s on "C ontracting O u t" D ep a rtm en t o f Ju stice F unctions U nder O M B C ircular A76, 14 Op. O.L.C. 94 (1990). We are, o f course, available to consult with you or your staff as to consti­ tutional issues that might arise in connection with contracts with the private sector for prison facilities. 74 that the agency is authorized to perform under its enabling legislation or other statutory provision without a specific grant of contracting authority”). Rather, GAO contends that contracting with the private sector for incarcera­ tion facilities would be “inconsistent with the statutory scheme,” which “describes with specificity the courses of action the government may use to obtain incarceration facilities.” Id. See generally 1 Nash & Cibinic at 10 (governmental entity may not enter into a “contract which is specifically prohibited by statute, or at variance with required statutory provisions or procedures”). GAO’s argument proves too much. Section 4002 states that “the Attorney General may contract . . . with the proper authorities of any State, Territory, or political subdivision thereof, for imprisonment, subsis­ tence, care, and proper employment of such persons." Id. (emphasis added). To the extent GAO believes that contracting for private incarceration facili­ ties would be inconsistent with section 4002, private contracting for other items involving the subsistence and care of prisoners would call into ques­ tion BOP’s well-established authority, apparently not questioned by Congress, to enter into contracts with the private sector for food service, clothing, and other goods and services. More fundamentally, we disagree with GAO’s assertion that private con­ tracts for incarceration of federal prisoners would be “inconsistent with the statutory scheme.” GAO Report at 50. As we have previously explained, see supra pp. 67-70, 72-73, nothing in the text or legislative history of sec­ tion 3621(b) or sections 4002 and 4003 indicates that Congress intended to prohibit such contracts. Given the broad and unlimited designation authority contained in section 3621(b), we cannot conclude that private contracts would “conflict with the statutory scheme” based on the grants of authority con­ tained in sections 4002 and 4003 and Congress’ purported silence concerning private contracts.19 19 We also reject GAO's contention that our interpretation of section 3621(b) is undercut by certain other statutes that explicitly authorize the use of private facilities for confinement. GAO Report at 4950 (citing 18 U.S.C. §§ 4013(a)(3) and 5040). The weakness of the argument can be seen by applying it consistently to 18 U.S.C. § 4013. Section 4013(a) authorizes the Attorney General to make payments from appropriated funds: [in] support of United States prisoners [in non-Federal institutions] for — (1) necessary clothing; (2) medical care and necessary guard hire; (3) the housing, care, and security o f persons held in custody of a United States m ar­ shal . . . under agreements with State or local units o f government or con tra cts w ith p riva te e n titie s ; (emphasis added). GAO argues that section 4013(a)(3)’s reference to private contracts for prisoner incar­ ceration indicates that when Congress intended to allow private contracting it did so explicitly. Again, GA O’s argument proves too much. It would preclude private contracting for clothing, medical care, and security because subsections (a)(1) and (a)(2) do not explicitly permit private contracts as com pared to subsection (a)(3). That would again call into question the Bureau’s well-established authority to contract with the private sector for such items. See supra p. 74. 75 Conclusion For the foregoing reasons, we conclude that the Bureau of Prisons has the statutory authority to contract with the private sector for secure facilities. TIMOTHY E. FLANIGAN Acting Assistant Attorney General Office o f Legal Counsel 76

Write a legal research memo on the following topic.

Statutory Authority to Contract With the Private Sector for Secure Facilities T h e F ederal B ureau o f Prisons has statutory authority to contract with the private se cto r for secure facilities. March 25, 1992 M e m o r a n d u m O p in io n f o r t h e D ir e c t o r F e d e r a l B u r e a u o f P r is o n s This memorandum responds to your request for our opinion whether the Federal Bureau of Prisons (“BOP”) has statutory authority to contract with the private sector for secure facilities.1 The General Accounting Office (“GAO”) has concluded that BOP lacks such authority;2 BOP has taken the opposite view.3 For the reasons explained below, we conclude that BOP has statutory authority to contract with the private sector for secure facilities. I. BOP was established in the Department of Justice in 1930 to provide a central federal organization responsible for the care and treatment of federal prisoners. H.R. Rep. No. 106, 71st Cong., 2d Sess. 1 (1930). BOP has the authority and responsibility under 18 U.S.C. § 3621(b) to “designate the place of . . . imprisonment” for prisoners who have been sentenced to a term of imprisonment under relevant federal statutes. BOP “may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau [of Prisons], whether main­ tained by the Federal Government or otherwise.” 18 U.S.C. § 3621(b).4 1 S e e Memorandum for J. Michael Luttig, Assistant Attorney General, Office of Legal Counsel, from J. M ichael Quinlan, Director, Federal Bureau of Prisons (Apr. 26,1991) (“Opinion Request” ). 2GAO, P rivate P risons, C o st S a vin g s a n d BO P 's S ta tu to ry A u th o rity N e e d to b e R esolved: R e p o rt to the C hairm an, Subcom m . on Regulation, B usiness O pportunities a n d Energy, H ouse C om m , on S m a ll B u sin ess (Feb. 1991) (“GAO Report”). 3S e e Opinion Request at 1; Memorandum for J. Michael Quinlan, Director, from Clair A. Cripe, G en­ eral Counsel, Federal Bureau of Prisons at 4 (Oct. 14, 1988) (“ 1988 M emorandum” ); Memorandum for Norman A. Carlson, Director, from Clair A. Cripe, General Counsel, Federal Bureau o f Prisons (June 10, 1983), rep rin ted in P riva tiza tio n o f C orrections: H earings B efore the Subcom m . on Courts, C ivil L ib e r ­ ties, a n d the A d m in istra tio n o f Ju stice o f the H ouse Com m , on the Ju d icia ry, 99th Cong., 1st & 2d Sess. 150 (1985-86) (“Privatization Hearing”). ‘ Section 3621(b) is applicable to those convicted of offenses committed on or after November 1, 1987. Continued 65 BOP has consistently taken the position that the language of section 3621(b) — especially as it refers to facilities “whether maintained by the Federal Government or otherwise” — allows it to place federal prisoners in facilities operated by the private sector as well as those run by federal, state, or local authorities. See Opinion Request at 1; 1988 Memorandum at 4; Privatization Hearing at 150. It has relied for this conclusion on the plain language of the statute and on general principles of federal procurement law under which executive agencies may enter into contracts with the private sector. See Opinion Request at 1; 1988 Memorandum at 2-3; Privatization Hearing at 149-50; Bureau o f Prisons and the U.S. Parole Commission: Over­ sight Hearing Before the Subcomm. on Courts, Civil Liberties, and the Administration o f Justice o f the House Comm, on the Judiciary, 99th Cong., 1st Sess. 16-17 (1985) (“1985 Hearing”); see also Privatization Toward More Effective Government: Report of the President’s Commission on Privatization 147 (Mar. 1988) (“President’s Commission”).5 GAO, however, has concluded that, at least as to secure facilities, the statute’s reference to facilities “maintained by the Federal Government or otherwise” includes only federal, state, and local facilities, but not facilities operated by the private sector. See GAO Report at 45-50. GAO argues that there is no evidence that Congress contemplated private incarceration of federal prisoners except in limited circumstances involving residential com­ munity treatment centers such as halfway houses. Id. at 48-49.6 GAO contends that the authority in section 3621(b) to place prisoners in any facil­ ity “whether maintained by the Federal Government or otherwise” is ‘ (....continued) S e e 18 U.S.C. § 3621 note. It is based on former 18 U.S.C. § 4082(b), reprinted in 18 U.S.C. § 4082 note, which governs as to offenses committed before November 1, 1987. Former section 4082(b) provided in part that “ [t]he Attorney General may designate as a place o f confinement any available, suitable, and appropriate institution or facility, whether maintained by the Federal Government or otherwise." Refer­ ences to section 4082 in this memorandum should be understood to refer to former section 4082. Our analysis in this m em orandum applies to the authority to designate the place o f incarceration under both section 3621(b) and form er section 4082(b). References in this memorandum to the history of section 3621(b) should be understood to include its predecessor statutes. 5O ne writer has claimed that BOP’s former director, Norman A. Carlson, testified to the contrary in a 1985 H earing. S e e Ira P. Robbins, T h e Legal D im en sio n s o f P rivate Incarceration 399 n.940 (1988) (“ Robbins”). However, Robbins quotes only a portion of Carlson’s remarks. In context, it is plain that Carlson stated that he was unsure, without the benefit of advice of counsel, whether BOP could privatize “one o f the existin g 45 institutions.” 1985 Hearing at 17 (em phasis added). He stated unequivocally his view that BOP has “statutory authority in [its] enabling legislation in title 18 to contract with State, local or private agencies for the care and custody of offenders. I think the enabling legislation gives us that authority.” Id. at 16. Carlson further clarified his position in a 1986 hearing: Although I raised some question [regarding the legal authority to contract for an entire facil­ ity] when I testified before this subcommittee in March o f 1985, our General Counsel advises me that we currently have the necessary authority to contract for the management of an entire facility under 18 U.S.C. § 4082. This law allows the Attorney General to designate as a place o f confinem ent “any available, suitable, and appropriate institution or facility, whether main­ tained by the Federal Government or otherwise.” Privatization Hearing at 141. 6 A residential com m unity treatment center is a pre-release facility to which a prisoner may be trans­ ferred in order to be assisted in becoming re-established in the community. S. Rep. No. 613, 89th Cong., 1st Sess. 7 (1965) (“S. Rep. No. 613”). Such facilities are contrasted with secure facilities used to house prisoners who “remain a distinct threat to the community." Id. at 7-8. 66 circumscribed by 18 U.S.C. § 4002 (authorizing the Attorney General to contract for the incarceration of federal prisoners with states and localities) and 18 U.S.C. § 4003 (permitting the Attorney General to cause new federal facilities to be erected), which in GAO’s view outline the only two options available to BOP for obtaining incarceration facilities. GAO Report at 46-48.7 II. We begin our analysis with the language of the statute. As the Supreme Court has recently said, in construing a statute the one “cardinal canon be­ fore all others,” is that we must “presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut N at’l Bank v. Germain, 503 U.S. 249, 253-54 (1992). “When the words of a statute are unambiguous, then, this first canon is also the last: ‘[the] inquiry is com­ plete.’” Id. at 254 (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)). The plain language of section 3621(b) gives BOP open-ended authority to place federal prisoners in “any available penal or correctional facility” that meets minimum standards of health and habitability without regard to what entity operates the prison. As if to emphasize the breadth of BOP’s author­ ity to use “any available facility,” Congress expressly noted that such facilities could be those “maintained by the Federal Government or otherwise.” The words “or otherwise” are not qualified or defined. They are most obviously read to include (as the statute has already described) any penal or correc­ tional facility — without regard to whether it is maintained by a state, local, or private entity — as long as it meets “minimum standards of health and habitability established by the Bureau.” In short, there is nothing in the language of section 3621(b) that limits BOP’s placement authority to those facilities operated by the federal government, states, or localities. Based on the well-recognized canon of statutory construction referred to above, we believe that the plain language of section 3621(b) is dispositive as to BOP’s authority to place prisoners in facilities operated by the private sector. Although GAO concedes that the plain language of section 3621(b) does not limit BOP’s choice of prison operators, GAO Report at 48, GAO asserts that section 3621(b)’s legislative history establishes that Congress did not authorize placing federal prisoners in private secure facilities such as are at issue here. It contends that 7 Section 4002 o f title 18 provides in part: For the purpose of providing suitable quarters for the safekeeping, care, and subsistence of all persons held under authority of any enactment o f Congress, the Attorney General may con­ tract, for a period not exceeding three years, with the proper authorities of any State, Terri­ tory, or political subdivision thereof, for the imprisonment, subsistence, care, and proper em ­ ployment o f such persons. Section 4003 provides that if the authorities of a state, territory, or political subdivision thereof are unable or unwilling to enter into such contracts or “if there are no suitable or sufficient facilities available at reasonable cost, the Attorney General may select a site . . . and cause [an appropriate facility] to be erected " 67 [njothing in the legislative history of this provision suggests that Congress ever contemplated having private parties oper­ ate adult secure facilities. Rather, it appears that Congress’ intention in enacting the provision concerning places of con­ finement was simply to clarify that the Attorney General would have the power to choose the places prisoners would be con­ fined, which at that time were limited to federal or state and local institutions. GAO Report at 48. In light of the plain language of section 3621(b), we think GAO’s conclu­ sion that BOP lacks the authority to designate private secure facilities — bised on the absence of comment on that issue in the legislative record — is an incorrect reading of the statute.8 Moreover, even if we were to rely on tie legislative history of section 3621(b) to determine BOP’s authority to place prisoners in privately operated facilities, we find nothing in the legis­ lative history of section 3621(b) to indicate that Congress intended to preclude the use of such facilities to incarcerate federal prisoners. The language now contained in section 3621(b) originated in the Act of May 14, 1930, Pub. L. No. 71-218, 46 Stat. 325 (“1930 Act”), and was adopted to resolve an ambi­ guity as to who had the power to designate the place of confinement of federal prisoners. S. Rep. No. 533, 71st Cong., 2d Sess. 2 (1930) (“S. Rep. No. 533”) (statement of the Attorney General). It authorized the Attorney General to “designate any available, suitable, and appropriate institutions, whether maintained by the Federal Government or otherwise.”9 The lan­ guage enacted in 1930 has remained substantially unchanged through its present codification in 18 U.S.C. § 3621(b).10 During the various reenact­ ments of the provision, there was never any indication that the power to designate the place of confinement was limited to designation of federal, state, or local facilities. See, e.g., S. Rep. No. 225, 98th Cong., 1st Sess. 141 8 We note that while GAO reports are often persuasive in resolving legal issues, they, like opinions of the C om ptroller General, are not binding on the executive branch. S e e Memorandum for Donald B. Ayer, D eputy Attorney G eneral, from J. M ichael Luttig, Principal Deputy Assistant Attorney General, Office o f Legal Counsel at 8 (Dec. 18, 1989) (“This Office has never regarded the legal opinions o f the C om ptroller General as binding upon the Executive.’’); R e im b u rse m e n t fo r D eta il o f J u d g e A d v o c a te G e n e ra l C o rp s P e r so n n e l to a U nited S ta te s A tto rn e y 's O ffice, 13 Op. O.L.C. 188, 189 n.2 (1989) (“The C om ptroller General is an officer o f the legislative branch, see B ow sher v. S yn a r, 478 U.S. 714, 727-32 (1986), and historically, the executive branch has not considered itself bound by the C om ptrol­ ler G eneral’s legal opinions if they conflict with the legal opinions o f the Attorney General and the Office o f Legal Counsel.” ). ’ This language, contained in section 7 o f the 1930 Act, was originally codified at 18 U.S.C. § 753f, see 18 U.S.C. § 4082 note, and was later reenacted in modified form and codified at form er 18 U.S.C. § 4082(b). S e e su p ra note 4. 10 Form er section 4082(b) authorized the Attorney General to designate the place o f incarceration for federal prisoners. Section 3621(b) gives that authority to BOP, a component o f the Justice Department. The change w as not intended to affect the authority with regard to place of confinement, but rather only to sim plify the adm inistration o f the prison system. S. Rep. No. 225, 98th Cong., 1st Sess. 141 (1983). 68 (1983) (“The designated penal or correctional facility need not be . . . main­ tained’ by the Federal Government.”). On the contrary, there is evidence in the legislative history of section 3621(b) that at least after a 1965 amendment Congress specifically antici­ pated that BOP would designate privately operated facilities as places of incarceration. In 1965 Congress amended the designation provision to allow designation of a “facility” as well as an “institution.” Act of Sept. 10, 1965, Pub. L. No. 89-176, 79 Stat. 674 (former § 4082(b), reprinted in 18 U.S.C. § 4082 note). The word “facility” was defined to “include a residential com­ munity treatment center.” Id. at 675 (former § 4082(g), reprinted in 18 U.S.C. § 4082 note).11 The legislative history of former section 4082(g) indicates that by enacting that definition Congress intended that “facility” would include community treatment centers such as those already being used to place juvenile offenders. See S. Rep. No. 613 at 3-4. As GAO concedes, GAO Report at 23, at least one of those juvenile facilities was being operated by contract with a nongovernmental entity: The residential community treatment centers, to which the bill authorizes the Attorney General to commit and transfer pris­ oners, are similar to the so-called halfway houses now operated by the Department of Justice for juvenile and youthful offend­ ers. . . . . . . The halfway houses are operated under different plans. . . . The New York City center is operated under contract by Spring­ field University. S. Rep. No. 613 at 3-4 (emphasis added). According to the Senate Report, Congress envisioned that “under the bill’s authority to use community cen­ ters for older types of prisoners a similar variety o f organizational plans will be adopted.” Id. at 4 (emphasis added). Accordingly, for many years BOP has, “with the knowledge of Congress,” contracted “for the placement of lower security inmates in private facilities, particularly contract Community Treatment Centers.” 1985 Hearing at 2223 (Testimony of Norman A. Carlson, Director, BOP). See also id. at 16-17 (“Today we have . . . nearly 2,500 [federal] inmates who are in halfway houses. . . . We contract with State, local and private agencies for this 11The definition of "facility" in former section 4082(g) did not lim it application o f the term to residen­ tial community treatment centers. S e e 2A Norman J. Singer, S u th e rla n d S ta tu to ry C o n stru c tio n § 47.07, at 152 (3d ed. 1992 rev.) ("Sutherland”) (“ [T]he word ‘includes’ . . . conveys the conclusion that there are other items includable, though not specifically enumerated.”). In any event, Congress deleted the definition o f “facility” when it substantially reenacted section 4082(b) in section 3621(b). Thus, particularly as it appears in section 3621(b), “facility” is not limited to residential com munity treatm ent centers. We reject the suggestion to the contrary in Robbins at 412-13. 69 service.”). As Director Carlson testified in 1986, “[s]ince 1981, the Bureau of Prisons has relied solely on the private sector to provide prerelease hous­ ing through its community treatment center programs.” Privatization Hearing at 132. In 1986, BOP “contracted] with 330 Community Treatment Centers [“CTCs”], 234 of which [were] privately run. Over 3,000 Federal inmates [were] in these CTCs. . . . In 1984, approximately 80 percent of offenders who were serving sentences of over six months and who were released to the community were released through contract CTCs.” Id. at 168 (BOP staff position paper). GAO apparently does not dispute BOP’s authority to enter into private contracts for residential community facilities. See generally GAO Report at 48-49; see also Robbins at 412. GAO does not believe, however, that the text and legislative history of the 1965 amendment support the conclusion that Congress anticipated use of private secure facilities. It reasons that the Attorney General had specific statutory authority to contract for juvenile residential community treatment centers. See 18 U.S.C. § 5040.12 Thus, in GAO’s view, the 1965 amendment does not demonstrate Congress’s view that the Attorney General already had authority to contract for private incar­ ceration facilities, and, at most, it provided that authority for adult residential community facilities. See also Robbins at 400 (“[T]he meaning of the phrase ‘or otherwise’ has changed, but only to the rather limited extent of permit­ ting [BOP] to contract with private corporations for the confinement of federal prisoners in certain special facilities, such as residential community-treatment centers.”).13 GAO’s response misses the point and ignores the statute’s plain language. Former section 4082(b), as amended in 1965, gave the Attorney General the 12Section 5040 provides in part that “ [t]he Attorney General may contract with any public or pri­ v ate agency o r in d ividual and such com m unity-based facilities as halfway houses and foster hom es fo r the . . . custody and care of juveniles in his custody.” Provisions authorizing such private contracts have been in effect since 1938. See Juvenile Justice and Delinquency Act of 1974, Pub. L. No. 93-415, § 510, 88 Stat. 1109, 1138 (1974); Act o f June 16, 1938, ch. 486, § 6, 52 Stat. 764,766. ‘’ Robbins contends that because the precursors of section 3621(b) and sections 4002 and 4003 were enacted together, s e e 1930 Act §§ 3 ,4 , & 7, the “or otherwise” language of section 3621(b) can only be interpreted as referring to institutions that were authorized by the precursors of sections 4002 and 4003, i.e., federal, state, local, or other public institutions. Robbins at 405-06. He then reasons that the 1965 am endm ent only broadened the authority now contained in section 3621 (b) to include the power to con­ tract for residential com m unity treatment centers: Thus, although section 4082(b) w as expanded to allow the Attorney General to confine adult federal prisoners in privately run facilities, Congress contemplated such action only with respect to qualified pre-release prisoners in residential community-treatment centers. Con­ gress did not intend the amendment to be a broad grant of authority to place adult federal prisoners in all types o f privately run facilities. Id. at 412-13 (footnote omitted). Robbins places great w eight on the fact that the precursors o f section 3621(b) and sections 4002 and 4003 w ere initially enacted in the sam e public law. S e e id. at 405. However, these sections subse­ quently have been reenacted, amended, and recodified in separate locations in the United States Code. S ectio n 3621(b) is codified in subchapter C (Im prisonm ent) o f chapter 229 o f title 18, entitled “P ostsentence Adm inistration." Sections 4002 and 4003 are codified in chapter 301 o f title 18, entitled “G eneral Provisions,” which includes a number o f loosely-related provisions. See, e.g ., § 4001 (Lim i­ tation on detention; control o f prisons); § 4004 (Oaths and acknowledgments); § 4005 (Medical relief; expenses). The m ere fact that these sections were initially enacted together, without more, does not require that they should be construed in a like manner. 70 authority to place a federal prisoner in a “facility” including, but not limited to, a residential community treatment center. The Senate Report indicates that Congress expected the Attorney General to use the same kinds of ar­ rangements for the adult residential facilities contemplated by the 1965 amendment as already existed in connection with similar facilities for juve­ nile offenders, at least one of which involved a contract with a nongovernmental entity. S. Rep. No. 613 at 3-4 (under the “authority to use community centers for older types of prisoners a similar variety of organiza­ tional plans will be adopted”). Yet Congress apparently saw no need to provide additional authority beyond that inherent in the designation provi­ sion itself to allow the Attorney General to enter into contracts with the private sector for adult facilities. This indicates that Congress believed the Attorney General had the authority under former section 4082(b) to enter into such contracts. There is, moreover, no statutory basis ih section 3621(b) for distinguish­ ing between residential community facilities and secure facilities. Because the plain language of section 3621(b) allows BOP to designate “any avail­ able penal or correctional facility,” we are unwilling to find a limitation on that designation authority based on legislative history. Moreover, the subse­ quent deletion of the definition of “facility” further undermines the argument that Congress intended to distinguish between residential community facili­ ties and other kinds of facilities. See supra note l l . 14 III. GAO also contends that the language of section 3621(b) can only be understood in conjunction with 18 U.S.C. § 4002, which explicitly autho­ rizes the Attorney General to contract with states and localities for the “imprisonment, subsistence, care, and proper employment” of federal pris­ oners, and 18 U.S.C. § 4003, which permits the Attorney General to cause appropriate facilities to be erected. See supra note 7. These statutes do not mention contracts with the private sector. GAO argues that sections 4002 and 4003 detail the only two courses of action the Attorney General and, by inference, BOP may take to provide incarceration facilities, and thus provide a statutory limit on the otherwise broad language of section 3621(b). GAO Report at 47-48 & n.8. GAO invokes the maxim of expressio urtius est exclusio alterius15 to conclude that because Congress addressed “two courses of action the federal government may use in order to obtain incarceration facilities” in 14We also note that GAO’s construction of the 1965 amendment would mean that the phrase “m ain­ tained by the federal government or otherwise” would have two different meanings at the same time: it would mean federal, state, or local government “institutions," but federal, state, local, o r p r iv a te “facili­ ties." 15 E xpressio u nius est exclusio alteriu s means “the expression of one thing is the exclusion o f another.” B la c k ’s Law D ictio n a ry 581 (6th ed. 1990). Under the maxim o f expressio unius, where a “form o f conduct, the manner o f its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions.” Sutherland § 47.23, at 216 (footnotes omitted). 71 some detail, the “clear inference is that Congress intended to preclude any ar­ rangement not expressly authorized” by those sections. Id. at 47. As an initial matter, we question whether application of the expressio unius maxim is appropriate in these circumstances. The statutes at issue here are both affirmative grants of authority. The premise of the maxim — that the expression of one thing is the exclusion of another — simply does not apply where the expressions of limitation are set up against an addi­ tional affirmative grant of authority. The maxim, it seems to us, is more properly reserved for those circumstances in which the issue is whether the enumeration of items is exhaustive of the authority provided in the absence of other grants of authority. It is quite something else to apply the maxim, as GAO would have us do, to conclude that limitations on a particular grant of authority should also limit a separate grant of authority. We also note that the maxim of expressio unius is not a rule of substan­ tive law, but a rule of statutory cbnstruction based on ‘“ logic and common sense.” ’ Sutherland § 47.24, at 228 (quoting Herbert Broom, A Selection o f Legal Maxims 453 (10th ed. 1939)). It embodies a “presumption that . . . Congress intended to deny all powers not expressly enumerated” and it “should be invoked only when other aids to interpretation suggest that the language at issue was meant to be exclusive.” Bailey v. Federal Intermedi­ ate Credit Bank, 788 F.2d 498, 500 (8th Cir.) cert, denied, 479 U.S. 915 (1986). Application of the presumption generally occurs where ‘“ there [is] some evidence the legislature intended [the presumption’s] . . . application lest it [should] prevail as a rule o f construction despite the reason for and the spirit of the enactment.’” Sutherland § 47.25, at 234 (alteration in origi­ nal) (quoting Columbia Hospital A ss’n. v. City o f Milwaukee, 151 N.W.2d 750, 754 (1967)). See also National R.R. Passenger Corp. v. National Ass’n o f R.R. Passengers, 414 U.S. 453, 458 (1974) (expressio unius maxim “must yield to clear contrary evidence of legislative intent.”).16 Here, the presumption suggested by the expressio unius maxim is under­ mined by the fact that nothing in the text or legislative history of sections 4002 and 4003 confirms the negative inference that Congress intended by the grants of contracting authority to limit BOP’s unqualified section 3621 (b) power to designate the place of incarceration of federal prisoners. Sections 4002 and 4003, by their terms, are permissive rather than exclusive. Section 4002 provides that the Attorney General “may contract .. . with the proper authorities of any State, Territory, or political subdivision thereof’ in order to “provid[e] suitable quarters for the safekeeping, care, and subsistence” of “ T his Office has noted on numerous occasions that “[i]n attempting to assess congressional intent, the e x p re ssio u n iu s m axim m ay serve as a guide to that intent, but it is inconclusive. Other factors, including . . . the nature o f the legislation, and the legislative history, must also be considered in the effort to discern congressional intent.” A pplicability o f C erta in C ross-C utting S tatutes to B lock G rants U nder the O m n i­ b u s B u d g e t R e c o n c ilia tio n A c t o f 1981 , 6 Op. O.L.C. 83,105 (1982)(footnote omitted). See a lso P aper­ w o rk R e d u c tio n A c t o f 1 9 8 0 , 6 Op. O .L .C . 388, 407 (1982) (“The application o f the [expressio u n iu s] m axim is m ore persuasive when the language of the statute, its legislative history, and other factors point to the sam e result.” ). 72 federal prisoners. Id. (emphasis added). Alternatively, under section 4003 the Attorney General “may . . . cause to be erected” a suitable federal facil­ ity. Id. (emphasis added). Nothing in these sections or anywhere else in BOP’s enabling legislation could be said to prohibit contracting with the private sector or to establish statutory requirements that would be at vari­ ance with such private contracts. The legislative history of sections 4002 and 4003 indicates that these provisions were enacted specifically to address particular problems in con­ nection with the incarceration of federal prisoners in state and local facilities. Sections 4002 and 4003 were enacted in response to a shortage of prison space for federal prisoners and the lack of a central administrative organiza­ tion to oversee the disposition of such prisoners. See S. Rep. No. 533 at 2 (statement of the Attorney General). Although the federal government was already relying heavily on state and local facilities for the incarceration of federal prisoners, it was “powerless to remedy the deplorable conditions of filth, contamination, and idleness which [were] present in most of the anti­ quated jails of the country” and was “obliged to pay the States the rates they charge[d] for boarding Federal prisoners, even though they may be exorbi­ tant.” Id. In response, section 3 of the 1930 Act, the precursor to section 4002, placed specific limitations and requirements on contracts with states and local governments. Section 4 of the 1930 Act, now substantially contained in section 4003, was enacted because emergency conditions and the large number of federal prisoners in certain districts made it desirable for the Department of Justice to have the authority to provide prisons of its own. See S. Rep. No. 533 at 3. Because these provisions were enacted to address specific circumstances involving the incarceration of federal prisoners in federal, state, and local facilities, Congress’s failure to address contracts with the private sector is not surprising, and does not reflect an intention to prohibit such contracts.17 The expressio unius argument is further undermined because BOP does not, as a general matter of federal contracting law, need specific statutory authorization to contract with the private sector. The general rule is that an agency may use contracts with the private sector to carry out its statutory mission as long as the contract is not “specifically prohibited by statute” or “at variance with required statutory provisions or procedures.” 1 Ralph C. Nash, Jr. & John Cibinic, Jr., Federal Procurement Law 5, 10 (1977) (“Nash & Cibinic”). As these commentators have explained: ’’ The argument that the Bureau’s 3621(b) designation power is limited by the options spelled out in sections 4002 and 4003 is also undermined by several provisions in BO P’s enabling legislation that authorize other permissible places of prisoner incarceration. Section 4125(b) of title 18 authorizes the Attorney General to “establish, equip, and maintain [work] camps upon sites selected by him . . . and designate such cam ps as places for confinement of persons convicted o f ’ federal offenses. In addition, the Attorney General may use inactive Department of Defense facilities as prisons. Department of Justice Appropriation Authorization Act, Fiscal Year 1979, Pub. L. No. 95-624, § 9, 92 Stat. 3459, 3463 (1978), rep rin ted in 18 U.S C. § 4001 note. Thus, sections 4002 and 4003 do not in fact contain all the options available to the Attorney General in designating places of incarceration. 73 The authority of the executive to use contracts in carrying out authorized programs is . . . generally assumed in the absence of express statutory prohibitions or limitations. Some statutes contain specific authorization to use contracts, others are si­ lent on the matter and, in some very rare cases, statutes require the use of contracts. However, the executive agencies nor­ mally have the discretion to decide whether to accomplish their objectives by contract or through the use of Government employees. Id. at 5. The courts have recognized that government agencies have broad discretionary powers in carrying out their functions, including the authority to contract for services when it is determined to be in the agency’s interest. See, e.g.. Local 2017, AFGE v. Brown, 680 F.2d 722 (11th Cir. 1982) cert, denied, 459 U.S. 1104 (1983); Local 2855, AFGE v. United States, 602 F.2d 574 (3d Cir. 1979). Thus, the power of an agency to contract for services is not dependent on specific authority to enter into such contracts. See Memo­ randum for Clair A. Cripe, General Counsel, Federal Bureau of Prisons, from Ralph Tarr, Deputy Assistant Attorney General, Office of Legal Coun­ sel (Dec. 30, 1982).18 It is well established that BOP has authority to contract with the private sector for various services in connection with incarceration facilities. See Opinion Request (citing 40 U.S.C. § 471; 41 U.S.C. § 252(a); 48 C.F.R. §§ 1.101, 2.101); Privatization Hearing at 132-33, 170-72. For example, BOP has entered into private contracts for food service and medical, educational, and psychological services, and for consulting and other services in connec­ tion with Federal Prison Industries. Privatization Hearing at 132-33, 170-72. See also President’s Commission at 147 (“Contracting for services and nonsecure facilities is a common practice in the field of corrections. Virtu­ ally all the individual components of corrections (such as food services, medical services and counseling, educational and vocational training, recre­ ation, maintenance, transportation, security and industrial programs) have been provided by private contractors.”). GAO claims that it does not dispute BOP’s authority generally to contract with the private sector for goods and services. See GAO Report at 50 (“As a general proposition, an agency may use contracts to carry out any activity 18 We do not suggest that there are no limitations on the authority of a governmental entity to contract for goods or services. For example, a governmental entity may not enter into a contract that is specifi­ cally prohibited by statute or that is at variance with statutory provisions or procedures. S e e 1 Nash & C ibinic at 10. In addition, some functions are considered to be inherently governmental in nature and m ay not be delegated to nongovernmental entities. S e e OMB Circular A-76 (Aug. 4, 1983). This m em orandum also does not address possible constitutional limitations on contracting. S e e gen era lly C o n stitu tio n a l L im n s on "C ontracting O u t" D ep a rtm en t o f Ju stice F unctions U nder O M B C ircular A76, 14 Op. O.L.C. 94 (1990). We are, o f course, available to consult with you or your staff as to consti­ tutional issues that might arise in connection with contracts with the private sector for prison facilities. 74 that the agency is authorized to perform under its enabling legislation or other statutory provision without a specific grant of contracting authority”). Rather, GAO contends that contracting with the private sector for incarcera­ tion facilities would be “inconsistent with the statutory scheme,” which “describes with specificity the courses of action the government may use to obtain incarceration facilities.” Id. See generally 1 Nash & Cibinic at 10 (governmental entity may not enter into a “contract which is specifically prohibited by statute, or at variance with required statutory provisions or procedures”). GAO’s argument proves too much. Section 4002 states that “the Attorney General may contract . . . with the proper authorities of any State, Territory, or political subdivision thereof, for imprisonment, subsis­ tence, care, and proper employment of such persons." Id. (emphasis added). To the extent GAO believes that contracting for private incarceration facili­ ties would be inconsistent with section 4002, private contracting for other items involving the subsistence and care of prisoners would call into ques­ tion BOP’s well-established authority, apparently not questioned by Congress, to enter into contracts with the private sector for food service, clothing, and other goods and services. More fundamentally, we disagree with GAO’s assertion that private con­ tracts for incarceration of federal prisoners would be “inconsistent with the statutory scheme.” GAO Report at 50. As we have previously explained, see supra pp. 67-70, 72-73, nothing in the text or legislative history of sec­ tion 3621(b) or sections 4002 and 4003 indicates that Congress intended to prohibit such contracts. Given the broad and unlimited designation authority contained in section 3621(b), we cannot conclude that private contracts would “conflict with the statutory scheme” based on the grants of authority con­ tained in sections 4002 and 4003 and Congress’ purported silence concerning private contracts.19 19 We also reject GAO's contention that our interpretation of section 3621(b) is undercut by certain other statutes that explicitly authorize the use of private facilities for confinement. GAO Report at 4950 (citing 18 U.S.C. §§ 4013(a)(3) and 5040). The weakness of the argument can be seen by applying it consistently to 18 U.S.C. § 4013. Section 4013(a) authorizes the Attorney General to make payments from appropriated funds: [in] support of United States prisoners [in non-Federal institutions] for — (1) necessary clothing; (2) medical care and necessary guard hire; (3) the housing, care, and security o f persons held in custody of a United States m ar­ shal . . . under agreements with State or local units o f government or con tra cts w ith p riva te e n titie s ; (emphasis added). GAO argues that section 4013(a)(3)’s reference to private contracts for prisoner incar­ ceration indicates that when Congress intended to allow private contracting it did so explicitly. Again, GA O’s argument proves too much. It would preclude private contracting for clothing, medical care, and security because subsections (a)(1) and (a)(2) do not explicitly permit private contracts as com pared to subsection (a)(3). That would again call into question the Bureau’s well-established authority to contract with the private sector for such items. See supra p. 74. 75 Conclusion For the foregoing reasons, we conclude that the Bureau of Prisons has the statutory authority to contract with the private sector for secure facilities. TIMOTHY E. FLANIGAN Acting Assistant Attorney General Office o f Legal Counsel 76

Write a legal research memo on the following topic.

Authority for Issuing Hatch Act Regulations T h e O ffice o f P e rs o n n e l M an a g e m e n t, ra th e r th an th e O ffic e o f S p e c ia l C o u n se l, has th e a u th o rity to p ro m u lg ate re g u la tio n s d e lim itin g th e sco p e a n d n a tu re o f p e rm is sib le a c tiv itie s u n d e r the H atch A c t R efo rm A m e n d m e n ts o f 1993. February 2, 1994 M e m o r a n d u m O p i n i o n f o r t h e D e p u t y S p e c ia l C o u n s e l O f f ic e o f S p e c i a l C o u n s e l You have asked whether the Office of Personnel M anagement (“O PM ”) or the Office of Special Counsel (“O SC”) has the authority to promulgate regulations delimiting the scope and nature of impermissible political activities under the Hatch Act Reform Amendments of 1993 (“Hatch Act Amendments”), Pub. L. No. 103-94, sec. 2(a), §§ 7321-7326, 107 Stat. 1001, 1001-1004.' OPM contends that OSC has plenary authority to issue Hatch Act regulations, whereas OPM is em ­ powered to promulgate Hatch Act regulations only on two narrowly-defined sub­ jects.2 OSC, on the other hand, asserts that it lacks authority to promulgate Hatch Act regulations. It contends that OPM historically has been responsible for issuing general Hatch Act regulations and that no provision in the Hatch Act Amendments has reassigned or diminished O PM ’s responsibility in this regard. After examining existing precedent, the statutes outlining the responsibilities of OPM and OSC for implementing the Hatch Act, and the text and legislative history of the Hatch Act Amendments, we conclude that OPM possesses the authority to promulgate regu­ lations explicating the Hatch Act as amended. I. The Need fo r Revised Hatch A ct Regulations For more than fifty years, the Hatch Act prohibited federal workers from par­ ticipating in a broad range o f political activities. See U nited Pub. W orkers v. M itchell, 330 U.S. 75, 78-79 (1947); see also U nited States C ivil Serv. C o m m ’n v. N ational A s s ’n o f L etter Carriers, AFL-CIO , 413 U.S. 548 (1973) (upholding Hatch Act provision forbidding federal em ployees to take an active part in political management or political campaigns). In 1993, however, Congress eliminated many of the restrictions that had previously cabined the political activities o f fed­ eral employees. See Hatch Act Amendments, Pub. L. No. 103-94, 107 Stat. 1001 1 Letter for W alter D ellinger, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, from Jam es A Kahl, D eputy Special C ounsel, U S O ffice o f Special C ounsel (D ec. 28, 1993) " The position o f O PM is set forth in a letter for W alter D ellinger, A ssistant A ttorney G eneral, O ffice of Legal C ounsel, from Lorraine Lew is, G eneral C ounsel, O ffice o f Personnel M anagem ent (Jan 28, 1994). 1 O pinions o f the O ffice o f L egal C ounsel (1993). Despite the steps taken by C ongress to liberalize the rules governing the political conduct o f federal workers, som e political activities remain generally im­ perm issible for all federal employees, see, e.g., id. sec. 2(a), § 7323(a)(2), 107 Stat. at 1002 (prohibiting federal employees from soliciting, accepting, or receiving political contributions), and some federal em ployees must continue to observe stringent lim itations upon involvement in the political process. See, e.g., id sec. 2(a), § 7323(b)(3), 107 Stat. at 1003 (“No employee of the Criminal Division of the D epartm ent o f Justice . . . may take an active part in political managem ent or political cam paigns.”). If a federal employee violates any o f these provisions, which will take effect on February 3, 1994, the employee “shall be removed from his position.” I d sec. 2(a), § 7326, 107 Stat. at 1004. Accordingly, federal em ­ ployees who wish to participate in political activities need immediate guidance in the form o f regulations distinguishing permissible political conduct from impermis­ sible activities.3 II. The Division of Hatch Act Regulatory Responsibility Until 1978, the Civil Service Commission bore the entire burden of adm inister­ ing the H atch Act. S. Rep. No. 103-57, at 4 (1993), reprin ted in 1993 U .S.C.C.A .N . 1802, 1805. But in passing the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections o f 5 U.S.C.) (“Civil Service Reform Act”), Congress divided the responsibility for im­ plem enting the Hatch A ct into three discrete tasks: the M erit Systems Protection Board (“M SPB ”) was “charged with adjudicating Hatch Act cases,” OPM became “responsible for prom ulgating Hatch Act regulations,” and OSC received the authority “to investigate allegations o f Hatch Act violations and present them to the M SPB .” A m erican F ed'n o f G ov’t E m ployees, AF L-C IO v. O ’Connor, 747 F.2d 748, 753 (D.C. Cir. 1984) (footnotes omitted), cert, denied, 474 U.S. 909 (1985); see a lso S. Rep. No. 95-969, at 24 (1978), reprin ted in 1978 U.S.C.C.A.N. 2723, 2746. In 1989, Congress refined this division of authority by formally separating OSC from the M SPB and independently enum erating the powers and functions of OSC.4 See W histleblow er Protection Act of 1989, Pub. L. No. 101-12, §§ 3(a)(l 1) - ( l 3), 103 Stat. 16, 19-21 (adding 5 U.S.C. §§ 1211-1212, which “established the O ffice o f Special Counsel” as an independent body and set forth the pow ers and functions o f the Office of Special Counsel). 3 In a Jan u a ry 13, 1994, letter concerning Lhe d isp u te at hand. R epresentative W illiam L C lay and Senator Jo h n G len n m ade p recisely this p o in t1 “Given th e dire co n seq u en ces that can result to em ployees w ho vio­ late the H atch A ct, in o u r view it is imperative that Federal e m p loyees be provided tim ely guidance as to w hat c o n stitu tes p erm issib le and im perm issible political activ ity .” L etter for W alter D ellinger, A ssistant A ttorney G en eral, O ffice o f Legal Counsel, from W illiam L C lay, C hairm an, C om m ittee on Post O ffice and C ivil S ervice, an d John G len n , C h airm an , C o m m ittee on G o v ern m ental A ffairs (Jan. 13, 1994) 4 T he C iv il Service R efo rm A ct o f 1978 pro v id ed for a “ Special C ounsel o f the M em System s Protection B o ard " w h o se po w ers w ere d efin ed in conjunction w ith those o f the M SPB See C ivil Service R eform Act, sec. 202 (a), §§ 1204-1208, 92 Stat. at 1122-30 2 A uthority f o r Issuing Hatch A ct R egulations The three-way division of Hatch Act authority now flows from clear statutory pronouncements. See 5 U.S.C. § 1204 (defining powers and functions of the MSPB); 5 U.S.C. § 1212 (setting forth powers and functions of OSC); 5 U.S.C. § 1103 (prescribing functions o f director of OPM). Specifically, the MSPB has authority to hear and adjudicate “all matters within the jurisdiction o f the Board,” 5 U.S.C. § 1204(a)(1), take action to enforce its own orders, id. § 1204(a)(2), “prescribe such regulations as may be necessary for the performance o f its func­ tions,” id. § 1204(h), and review “rules and regulations of the Office o f Personnel M anagem ent.” Id. § 1204(a)(4). This last responsibility, o f course, presupposes that OPM will issue general regulations. See Am erican F e d ’n o f G o v ’t Em ployees, 747 F.2d at 755 (M SPB ’s role includes “the review of Hatch Act regulations promulgated by the O PM ”). OSC possesses the authority to investigate and prosecute alleged Hatch Act violations, 5 U.S.C. §§ 1212(a), 1215(a), 1504, and “prescribe such regulations as may be necessary to perform the functions of the Special Counsel.”5 Id. § 1212(e). The regulations issued by OSC are not subject to oversight by the M SPB. S ee 5 U.S.C. § 1204. OSC also has the power to issue advisory opinions on Hatch Act questions, id. § 1212(f), but these advisory opinions have no binding effect on the MSPB. See Am erican F e d ’n o f G o v ’t Em ployees, 747 F.2d at 752-55 (explaining the nature and effect of “the advice the Special Counsel is permitted to give”). OPM derives its authority over personnel management from two sources. First, specific responsibilities are vested in the Director of OPM by 5 U.S.C. § 1103, including the obligation to “publish in the Federal Register general notice of any rule or regulation which is proposed by [OPM] and the application of which does not apply solely to [OPM] or its employees.” Id. § 1 103(b)(1). Second, the D i­ rector of OPM is empowered to assume “authority for personnel m anagement functions” delegated by the President.6 Id. § 1104(a)(1). The Director o f OPM 5 OPM a ss e n s that this provision em pow ers O SC to issue H atch Act regulations Both the M SPB and O SC have been granted the basic authority to prescribe all regulations necessary to perform th eir functions Indeed, the language o f the statutes vesting this fundam ental operational authority in the M SPB and O SC is virtually identical C om pare 5 U S C § 1204(h) (“The [M erit System s Protection] Board shall have the authority to prescribe such regulations as may be necessary for the perform ance o f its functions ") w ith 5 U S C § 1212(e) ("T he Special Counsel m ay prescribe such regulations as m ay be necessary to perform the functions o f the Special C o u n s e l.') T he sim ilarity in the language o f these tw o statutes underm ines O P M 's claim that 5 U S C 1212(e) confers upon O SC the pow er to issue H atch A ct regulations and bolsters O S C 's in terpretation o f 5 U S.C § 1212(e) as a sim ple assignm ent o f the authority to prom ulgate the reg u la­ tions necessary to run O SC itself. Indeed, if OPM is correct in interpreting 5 U S C § 1212(e) as sufficiently capacious to accom m odate the function o f issuing H atch Act regulations, then the M SPB sim ilarly possesses plenary authority to prom ulgate Hatch A ct regulations under the virtually identical language o f 5 U S C b 1204(h) The m ore logical interpretation dictates that the M SPB and O SC have been granted nothing more than the authority to issue all regulations that they deem necessary for their ow n internal operations 6 The D irecto r o f O PM also derives residual authority from section 102 o f the P resident's R eorganization Plan o f 1978, w hich transferred to the D irector o f O PM “all functions vested by statute in the U nited States Civil Service C om m ission' that were not expressly assigned to any other entity Reorg Plan N o. 2 o f 1978, 3 C .F R 323 (1979), rep rin ted in 5 U S.C. $ 1101 note, a n d in 92 Stat 3783, s e e also A m erica n F ed'ti oj G o v 't E m p lo yees, 747 F 2d at 753 n 13 (identifying P resid en t’s R eorganization Plan as source o f O PM authority) 3 O pinions o f the O ffice o f L egal C ounsel may, in turn, delegate to the heads o f executive branch agencies “any function vested in or delegated to the Director [of O PM ],” id. § 1104(a)(2), but this broad authority to delegate cannot “be construed as affecting the responsibility o f the Director [of OPM] to prescribe regulations and to ensure compliance with the civil service laws, rules, and regulations.” Id. § 1104(b)(3). The statutory provisions apportioning the power once held exclusively by the Civil Service Com mission clearly authorize OPM to issue general regulations un­ der the H atch Act. C onsistent with these statutes, OPM revised the existing Hatch A ct regulations on April 24, 1984. S ee Political Activity of Federal Employees, 49 Fed. Reg. 17,431, 17,432-33 (1984) (am endments codified at 5 C.F.R. §§ 733.101(g)-(j), 7 3 3 .122(b)(12)-(16)( 1993)). OPM rejected an attack upon its authority to issue Hatch Act regulations by em phatically stating that “OPM be­ lieves that it does have the authority to regulate the partisan political activity of Federal em ployees.”7 Id. at 17,431. Although OPM now argues that it lacks authority to undertake such a task, the tripartite system of Hatch Act implementa­ tion — including the statutory language setting up the division of labor — cuts against O P M ’s position. The MSPB has been assigned the task of reviewing “rules and regulations o f the Office of Personnel M anagem ent,” 5 U.S.C. § 1204(a)(4), yet the statute outlining the powers and functions o f the MSPB contains no corre­ sponding assignm ent of responsibility for screening regulations promulgated by OSC. S ee 5 U.S.C. § 1204. Instead, O SC gives advice in the form of opinions that have no binding effect on the MSPB. Id. § 1212(0- As the D.C. Circuit has ex­ plained, these interrelated statutes provide the M SPB with oversight authority “in the review o f Hatch Act regulations prom ulgated by the OPM ,” Am erican F e d ’n o f G o v ’t E m p lo yees , 747 F.2d at 755, w hile insulating the MSPB from any concern about the myriad non-binding OSC advisory opinions that “offer essentially a fore­ cast, albeit an educated one, of the w ay the M SPB would rule if an actual case m aterialized.” Id. at 753-54. III. Congressional Ratification o f OPM’s Role The regim e dividing the responsibility for Hatch A ct implementation into three discrete tasks rem ained in place w hile Congress formulated the Hatch Act A m endm ents, and apparently informed congressional debate concerning the allo­ cation o f regulatory responsibility. See, e.g., 139 Cong. Rec. S8610 (daily ed. July 13, 1993) (statem ent of Senator R oth indicating that, in lieu of congressional am endm ent o f the Hatch Act, “the O ffice o f Personnel Management, in consulta­ tion with the Office of Special Counsel as well as the Department of Justice, should prom ulgate new regulations to clarify the restrictions on political activity”). In 7 O PM c u ed the fo llo w in g authorities to su p p o rt its revision o f 5 C .F R. pt. 733: “5 U .S .C 3301, 3302, 7301, 7 3 2 1 , 7 3 2 2 , 7323, 7324, 7325, and 7327; R eorganization Plan No. 2 o f 1978, 3 C FR 1978 C om p p.323, an d E.O . 12107, 3 C F R 1978 Com p, p.264 ” See 4 9 Fed R eg. at 17,432. 4 A u th o rity f a r Issuing H atch A ct R egulations fact, while the Hatch Act Amendments wended their way through Congress, OPM expressly acknowledged its obligation to issue Hatch Act regulations: on April 26, 1993, OPM reported in its semiannual regulatory agenda that it intended to review the existing regulations regarding political activity of federal employees. See Of­ fice of Personnel M anagement Semiannual Regulatory Agenda, 58 Fed. Reg. 25,163, 25,169 (1993). In adopting the Hatch Act Amendments, which include no provision reassigning any regulatory functions among the MSPB, OSC, and OPM, Congress ratified the roles historically adopted by the three agencies/ The legislative history of the Hatch Act Amendments fortifies the conclusion that Congress approved of O PM ’s traditional obligation to issue Hatch Act regula­ tions. At the inception of the process to amend the Hatch Act during the 103d Congress, the House of Representatives broke with settled practice by assigning to the Special Counsel the obligation to “prescribe any rules and regulations neces­ sary to carry out” the Hatch Act amendments. H.R. 20, 103d Cong., § 2(a) (1993) (proposed version o f 5 U.S.C. § 7327 published at 139 Cong. Rec. 3983 (1993)). The Senate, in contrast, passed a bill striking out the entire House bill — including the assignment of rule-making authority to the Special Counsel — and adding pro­ visions that authorized OPM to prescribe regulations for certain conduct. 139 Cong. Rec. S9169, S 9 170-71 (daily ed. July 21, 1993). The House ultimately ac­ ceded to the Senate version of the Hatch Act reform bill, including the provisions assigning the responsibility for issuing various regulations to OPM. Id. at H6814, H6815-16 (daily ed. Sept. 21, 1993). The tripartite system of Hatch Act implementation created in 1978 has not been altered by the Hatch Act Amendments, which assign to OPM the authority to pre­ scribe regulations on two specific subjects in language that treats OPM as the agency with plenary authority to issue Hatch Act regulations. See Hatch Act Amendments, sec. 2(a), § 7325, 107 Stat. at 1004 (“The Office of Personnel M an­ agement may prescribe regulations permitting em ployees” in certain geographic areas “to take an active part in political management and political campaigns in­ volving the municipality or other political subdivision in which they reside.”); id. sec. 8(a), § 3303(e), 107 Stat. at 1007 (“Under regulations prescribed by the Office of Personnel Management, the head o f each agency shall ensure that employees and applicants are given notice of the provisions of this section” pertaining to po­ litical recommendations.). In contrast, the Hatch Act Amendments mention OSC only in the context of broadening the investigative authority of the Special Coun­ sel. See id. sec. 3, § 1216(c), 107 Stat. at 1004. These provisions prompted the Congressional Budget Office to observe that “[t]he bill would require the Office of Personnel M anagement (OPM) to issue the necessary regulations and the Office of Special Counsel to enforce these regulations.” S. Rep. No. 103-57 at 22, reprin ted in 1993 U.S.C.C.A.N. at 1823. We agree with this assessment. 5 O pinions o f the O ffice o f L egal C ounsel IV. Conclusion Since 1978, OPM has assumed the responsibility for promulgating Hatch Act regulations. The Hatch Act Amendments ratified and supplemented O PM ’s authority to issue general Hatch Act regulations, while concomitantly reaffirming and augm enting O S C ’s traditional role in investigating and prosecuting Hatch Act violations. A ccordingly, we conclude that OPM has the authority to promulgate revised Hatch Act regulations. W ALTER DELLINGER A ssista n t A ttorney G eneral Office o f L egal Counsel 6

Write a legal research memo on the following topic.

Deployment of United States Armed Forces to Haiti The President has authority to order the deployment of the armed forces to Haiti in order to protect American citizens there. The deployment is consistent with the War Powers Resolution. March 17, 2004 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT You have asked our Office to confirm in writing our views about the legal basis for the President’s recent deployment of the United States armed forces to Haiti. As we explain below, the President has the legal authority to order the deployment. The deployment is also consistent with the War Powers Resolution. I. Since early February of this year, an armed rebellion has sought to overthrow the government of Haitian President Jean-Bertrand Aristide. On February 23, President Bush deployed approximately 50 Marines to protect the United States Embassy in Port-au-Prince, Haiti, from political violence or looting. See Letter to Congressional Leaders on the Deployment of U.S. Military Forces in Response to Security Concerns for United States Embassy Personnel in Haiti, 40 Weekly Comp. Pres. Doc. 284 (Feb. 25, 2004). On February 29, President Aristide announced his resignation and fled the country. The Chief Justice of the Haitian Supreme Court, Boniface Alexandre, was sworn in as the leader of a transitional government, as provided by the Haitian Constitution. S.C. Res. 1529, pmbl., U.N. Doc. S/RES/1529, at 1 (Feb. 29, 2004) (“[t]aking note of the resignation of Jean-Bertrand Aristide as President of Haiti and the swearing-in of President Boniface Alexandre as the acting President of Haiti in accordance with the Constitution of Haiti”). He issued an appeal “to the governments of friendly countries to support with all urgency the peaceful and constitutional process which has begun” in Haiti. Statement of Haitian President Boniface Alexandre (Feb. 29, 2004). Specifically, he “authorize[d] security forces to enter and operate on the territory of the Republic of Haiti for the purpose of conducting activities designed to bring about a climate of security and stability which will support the political processes underway, facilitate the furnishing of humanitarian assistance, and in general help the people of Haiti.” Id. On the day Aristide announced his departure, the United Nations Security Council adopted a resolution authorizing the deployment of a Multinational Interim Force in Haiti. S.C. Res. 1529, ¶ 2, U.N. Doc. S/RES/1529, at 2 ¶ 2. The resolution authorized the force to “contribute to a secure and stable environment in the Haitian capital and elsewhere in the country” in order to “facilitate the 30 Deployment of United States Armed Forces to Haiti provision of humanitarian assistance and the access of international humanitarian workers to the Haitian people in need” and to “facilitate the provision of international assistance to the Haitian police and the Haitian Coast Guard in order to establish and maintain public safety and law and order and to promote and protect human rights.” Id. ¶ 2(a)–(c), U.N. Doc. S/RES/1529, at 2 ¶ 2(a)–(c). The same day, President Bush announced that he was “order[ing] the deployment of Marines, as the leading element of an interim international force, to help bring order and stability to Haiti.” Remarks on the Resignation of President JeanBertrand Aristide of Haiti, 40 Weekly Comp. Pres. Doc. 310 (Feb. 29, 2004). France, Canada, and Chile have also deployed troops to Haiti. II. The President has the authority to deploy the armed forces abroad in order to protect American citizens and interests from foreign threats. Under Article II, Section 2 of the Constitution, the President is the “Commander in Chief of the Army and Navy of the United States.” U.S. Const. art. II, § 2, cl. 1. Article II also makes the President the Chief Executive. The Supreme Court has “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, 293–94 (1981)). History offers ample evidence for the proposition that the President may take military action abroad, even, as here, in the absence of specific prior congressional authorization. See Richard F. Grimmett, Cong. Research Serv., RL30172, Instances of Use of United States Armed Forces Abroad, 1798–2001 (updated Feb. 5, 2002). Many of these actions have been undertaken to protect American citizens and property. As Attorney General Robert Jackson explained, “the President’s authority has long been recognized as extending to the dispatch of armed forces outside of the United States, either on missions of good will or rescue, or for the purpose of protecting American lives or property or American interests.” Training of British Flying Students in the United States, 40 Op. Att’y Gen. 58, 62 (1941). Similarly, the Supreme Court observed in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), that “[t]he United States frequently employs Armed Forces outside this country—over 200 times in our history—for the protection of American citizens or national security.” Id. at 273. For example, in Durand v. Hollins, 8 F. Cas. 111 (C.C.S.D.N.Y. 1860) (No. 4186), an American naval officer acting under orders from President Pierce bombarded Greytown, Nicaragua, in retaliation for the Nicaraguan government’s refusal to make reparations for attacks against United States citizens and property. In ruling on a lawsuit brought against the naval officer, Justice Nelson held that the officer acted properly. He observed that “the interposition of the president abroad, for the protection of the citizen, must necessarily rest in his discretion.” Id. at 112. More recently, we explained in the context of the Iranian hostage crisis that 31 Opinions of the Office of Legal Counsel in Volume 28 “the President has the constitutional power as Chief Executive and Commanderin-Chief to protect the lives and property of Americans abroad.” Presidential Powers Relating to the Situation in Iran, 4A Op. O.L.C. 115, 121 (1979). Similarly, we concluded in 1992 that the President had authority to deploy the armed forces to Somalia to protect “private United States citizens engaged in relief operations, and United States military personnel conducting humanitarian supply flights.” Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. 6, 10 (1992). In light of these principles, the President has authority to order the deployment of the armed forces to Haiti in order to protect American citizens there. See Department of Defense News Briefing: Secretary Rumsfeld and General Myers (Mar. 1, 2004), available at http://www.defense.gov/transcripts/archive.aspx (last visited May 31, 2013) (Defense Secretary Rumsfeld stating that the mission of the forces deployed to Haiti is in part “to protect U.S. citizens”). Thousands of Americans live in Haiti,1 and the President could reasonably conclude that they would be in danger if the country were to descend into lawlessness. He also could reasonably decide that the deployment is necessary to protect American property, such as the United States Embassy in Haiti. When the armed forces are deployed for the protection of American citizens and property, their mission once deployed need not be so narrowly limited. As we explained in our opinion on the Somalia deployment, “[p]ast military interventions that extended to the protection of foreign nationals provide precedent for action to protect endangered Somalians and other non-United States citizens.” Military Forces in Somalia, 16 Op. O.L.C. at 11. For example, in 1965 President Johnson ordered military intervention in the Dominican Republic “to preserve the lives of American citizens and citizens of a good many other nations.” An Assessment of the Situation in the Dominican Republic, 53 Dep’t St. Bull. 19, 20 (1965). And during the Boxer Rebellion in China, President McKinley sent United States troops as part of a multinational force to lift the siege of the foreign quarters in Beijing. See Compilation of the Messages and Papers of the Presidents, 1789– 1902, Supplement 113, 115–20 (James A. Richardson ed., 1904). The President also may determine that the deployment is necessary to protect American foreign policy interests. One such interest is the preservation of regional stability. As we noted in our opinion on the introduction of armed forces into Bosnia, the President may employ the armed forces to protect an American interest in “preserving peace in the region.” Proposed Deployment of United States Armed Forces Into Bosnia, 19 Op. O.L.C. 327, 332 (1995). Given the proximity of Haiti to the United States, the United States has an obvious interest in maintaining peace and stability in that country. This is especially so because past instances of 1 According to the website of the United States Embassy in Haiti, “[a]pproximately 15,000 U.S. citizens are registered at the Consular Section, but many more are believed to reside in the country.” See http://usembassy.state.gov/haiti/wwwhc00e.html (last visited Mar. 4, 2004). 32 Deployment of United States Armed Forces to Haiti unrest in Haiti have led to the mass emigration of refugees attempting to reach the United States. See Address to the Nation on Haiti, 2 Pub. Papers of Pres. William J. Clinton 1558, 1559 (Sept. 15, 1994) (President Clinton stated that his 1994 deployment of troops to Haiti was appropriate because in the absence of intervention, “[w]e will continue to face the threat of a mass exodus of refugees and its constant threat to stability in our region and control of our borders”); see also Letter to Congressional Leaders on the Further Deployment of United States Military Forces in Haiti, 40 Weekly Comp. Pres. Doc. 317 (Mar. 2, 2004) (“Further Deployment Letter”) (noting that the deployment will “facilitate the continued repatriation of Haitian migrants”). Another American interest in Haiti arises from the involvement of the United Nations in the situation there. In an opinion supporting President Truman’s decision to aid the United Nations in defending South Korea in 1950, the State Department observed that “[t]he continued existence of the United Nations as an effective international organization is a paramount United States interest.” Authority of the President to Repel the Attack in Korea, 23 Dep’t St. Bull. 173, 177 (1950). And in our opinion on the Somalia deployment, we noted that “maintaining the credibility of United Nations Security Council decisions, protecting the security of United Nations and related relief efforts, and ensuring the effectiveness of United Nations peacekeeping operations can be considered a vital national interest.” Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. at 11. In this case, the deployment will help to create the conditions in which a Multinational Interim Force, authorized by a United Nations Security Council Resolution, can be deployed to Haiti. See Further Deployment Letter at 317 (noting that the deployment will “help create conditions in the capital for the anticipated arrival of the Multinational Interim Force”). Of course, as Attorney General Barr noted in discussing the Somalia intervention, a Security Council resolution is “not required as a precondition for Presidential action.” Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. at 7. Nevertheless, in exercising his authority as Commander in Chief and Chief Executive, the President could choose to take the resolution into account in evaluating the foreign policy and national security interests of the United States that are at stake in Haiti. III. The deployment of armed forces to Haiti is consistent with the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C. §§ 1541–1548 (2000). Section 4(a) of the Resolution provides that the President “shall submit” a report to Congress within 48 hours whenever armed forces are introduced (1) “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances,” (2) “into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such 33 Opinions of the Office of Legal Counsel in Volume 28 forces,” or (3) “in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation.” 87 Stat. at 555– 56. After the President reports the introduction of forces into imminent or actual hostilities under section 4(a)(1), the Resolution purports to require him to withdraw those forces within 60 days (or 90 days, based on military necessity) unless Congress has authorized continued operations. Id. § 5(b). This provision does not apply when the armed forces are introduced to a situation described in section 4(a)(2) or section 4(a)(3). The War Powers Resolution does not purport to limit the President’s authority to deploy the armed forces without congressional authorization; on the contrary, it “recognizes and presupposes the existence of unilateral presidential authority to deploy armed forces ‘into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.’” Deployment of United States Armed Forces Into Haiti, 18 Op. O.L.C. at 175; see also Proposed Deployment of United States Armed Forces Into Bosnia, 19 Op. O.L.C. at 335. To be sure, the Resolution provides for reports by the President, but we understand that the President has already informed Congress of the deployment, thus satisfying any reporting requirement that may apply. See Further Deployment Letter. At this time, we need not determine whether the situation in Haiti is one where “imminent involvement in hostilities is clearly indicated by the circumstances” within the meaning of the Resolution’s 60-day provision, or whether the War Powers Resolution is constitutional. But it is surely relevant to the question whether “involvement in hostilities” is “imminent” that the deployment is at the express invitation of the government of Haiti. And the departure of President Aristide creates at least some possibility that large-scale fighting between rebels and pro-Aristide forces may come to an end. Although it is also possible that some level of violence and instability will continue, we previously have concluded that “the term ‘hostilities’ should not be read necessarily to include sporadic military or paramilitary attacks on our armed forces.” Presidential Power to Use Armed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185, 194 (1980). We believe that the President has authority to order the deployment of the United States armed forces to Haiti for the purposes we have discussed. JACK L. GOLDSMITH III Assistant Attorney General Office of Legal Counsel 34

Write a legal research memo on the following topic.

Certification of Peace Corps Response Volunteers for Noncompetitive Eligibility for Federal Employment Under Executive Order 11103 Under Executive Order 11103, which describes a “full term of service” as “approximately two years” for purposes of noncompetitive eligibility for federal employment, the Director of the Peace Corps may not issue certificates of satisfactory service to volunteers in the Peace Corps Response program (“PCRVs”) who serve between three and twelve months. The Director may not issue certificates of satisfactory service to PCRVs under the exception in Executive Order 11103 for those who do not complete a full term “due to circumstances beyond their control.” January 9, 2013 MEMORANDUM OPINION FOR THE GENERAL COUNSEL PEACE CORPS In Executive Order 11103, the President authorized the Director of the Peace Corps (“Director”) to issue certificates of satisfactory service to returning Peace Corps volunteers. These certificates provide volunteers with one year of noncompetitive eligibility for civil service appointments in the Executive Branch. See Exec. Order No. 11103, 3 C.F.R. 173 (1963 Supp.) (“Order”); 5 U.S.C. § 3301 (2006) (“The President may . . . prescribe . . . regulations for the admission of individuals into the civil service[.]”); id. § 3302 (“The President may prescribe rules governing the competitive service.”). The Order provides that only those volunteers “who have completed a full term of service (approximately two years)” are eligible for these certificates, but also allows the Director to issue certificates to volunteers who complete “a lesser period of satisfactory service if, in the judgment of the Director . . . their service was of sufficient duration to demonstrate their capability to complete satisfactorily a full term, and . . . their failure to complete a full term was due to circumstances beyond their control.” Order § 3. You asked whether the Director may issue certificates of satisfactory service not only to traditional Peace Corps volunteers, who serve terms of approximately 27 months, but also to volunteers in the Peace Corps Response program, a program in which volunteers complete shorter terms, 1 37 Op. O.L.C. 1 (2013) typically between three and twelve months. 1 Specifically, you asked whether Peace Corps Response Volunteers (“PCRVs”) complete the required “full term of service” under the Order by fulfilling a three-totwelve-month service obligation, notwithstanding the parenthetical in the Order describing a “full term of service” as “approximately two years.” Id. If not, you requested that we also consider whether the Director could issue certificates to PCRVs based on the Order’s exception for those who do not complete a full term “due to circumstances beyond their control.” Id. We conclude that, under the terms of the Executive Order, the Director may not issue certificates to PCRVs under either the full term of service requirement or the circumstances beyond their control exception. I. The Peace Corps Response program began in 1996 as a short-term volunteer program for those who had previously served as traditional Peace Corps volunteers. Peace Corps Letter at 2. The Peace Corps has since opened the program to qualified individuals with no prior Peace Corps experience, but the other features of the program have remained the same. Id. PCRVs complete assignments that are more specialized than those given to traditional volunteers. Their assignments “can be as short as three months and generally do not exceed 12 months.” Id. at 2. Aside from the shorter length of service and specialized work assignments, however, both the terms of PCRVs’ service and the benefits they receive are comparable to those of traditional volunteers. The only benefit that traditional volunteers currently receive that PCRVs do not is the certificate of satisfactory service for noncompetitive eligibility issued by the Director under Executive Order 11103. Executive Order 11103 states that “the head of any agency in the Executive Branch may appoint in the competitive service” (and, if the agency 1 See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal Counsel, from Bill Rubin, General Counsel, Peace Corps (June 19, 2012) (“Peace Corps Letter”). We also received the views of the Office of Personnel Management (“OPM”) regarding the issues addressed in this opinion. See Memorandum for John E. Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from Elaine Kaplan, General Counsel, Office of Personnel Management (Oct. 16, 2012) (“OPM Letter”). 2 Certification of Peace Corps Response Volunteers for Noncompetitive Eligibility has “an established merit system in the excepted service,” may appoint in the excepted service) “any person who is certified by the Director of the Peace Corps as having served satisfactorily as a Volunteer or Volunteer Leader under the Peace Corps Act” and who passes whatever examination is prescribed. Order §§ 1, 2. For “a period of one year after” certified volunteers complete their service (subject to extension under certain conditions), id. § 4, they are eligible to attain employment in the Executive Branch “outside of the competitive examining process,” OPM Letter at 3. This certification provides recipient volunteers a “significant” advantage in the federal hiring process. Id. Section 3 of the Order defines persons whom the Director may certify for a noncompetitive appointment: Certificates of satisfactory service for the purposes of this Order shall be issued only to persons who have completed a full term of service (approximately two years) under the Peace Corps Act: Provided, That such certificates may be issued to persons who have completed a lesser period of satisfactory service if, in the judgment of the Director of the Peace Corps, (1) their service was of sufficient duration to demonstrate their capability to complete satisfactorily a full term, and (2) their failure to complete a full term was due to circumstances beyond their control. Order § 3. II. The first issue is whether PCRVs qualify for a certificate of satisfactory service under the Order because they have completed “full term[s] of service under the Peace Corps Act” by virtue of completing their three-totwelve-month assignments as PCRVs, even though PCRVs’ terms are considerably shorter than the approximately 27-month terms served by traditional Peace Corps volunteers. 2 Based on both the text and the conOPM concluded that PCRVs cannot receive certificates of satisfactory service based in part on its view that PCRVs are not “volunteers” as the term is used in the Order. OPM Letter at 2. You responded that the Peace Corps considers PCRVs “volunteers” under the Peace Corps Act and noted that “the Executive Order . . . [does not] distinguish[] between 2 3 37 Op. O.L.C. 1 (2013) text of Executive Order 11103, we conclude that the Peace Corps Response program’s three-to-twelve-month term does not qualify as a “full term of service” as the Order uses that phrase. To begin with, the text of the Order indicates that the President expected that volunteers receiving noncompetitive eligibility would have completed terms of service more substantial than the three-to-twelvemonth assignments PCRVs typically receive. The parenthetical immediately following the full term of service requirement states that a full term runs “approximately two years.” Order § 3. We recognize, as you suggest, that this language could be read as either prescriptive (requiring that a full term of service be approximately two years) or descriptive (noting that the average term of service for a volunteer at the time of the Order was approximately two years). See Peace Corps Letter at 2. But we do not think characterizing the parenthetical as descriptive changes the analysis. Even if the parenthetical simply describes President Kennedy’s understanding of the length of a full term of service when he signed the Order, it nonetheless indicates that the President intended to confer noncompetitive eligibility on those Peace Corps volunteers who serve approximately two years (or who otherwise qualify through the circumstances beyond their control exception). In light of this parenthetical, it is unclear that the President would have extended noncompetitive eligibility to PCRVs had that short-term program existed in 1963. We believe that a “full term of service” under the Order is best read to mean approximately two years of service. The context of the issuance of the Order provides considerable support for this interpretation. When President Kennedy signed the Order, he would have understood a full term of service to run approximately two years. Before the Peace Corps was established, a report prepared for the President described the proposed volunteer program as having a “usual length of service . . . [of ] at least one year, preferably two, and perhaps in some cases three or more years.” Sargent Shriver, Report to the Presicategories of Volunteers.” E-mail for John E. Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from Jan Miller, Peace Corps, Re: Response to OPM opinion (Nov. 26, 2012). Because our analysis does not turn on whether PCRVs are volunteers within the meaning of the Order, we need not resolve this definitional issue and assume for purposes of this opinion that PCRVs are “volunteers.” 4 Certification of Peace Corps Response Volunteers for Noncompetitive Eligibility dent on the Peace Corps at 10 (Feb. 22, 1961), http://www.jfklibrary.org (folder title “Peace Corps: Shriver report and recommendations, February 1961”; digital identifier JFKPOF-085-014-p0037). By the time the Peace Corps issued its first annual report in July 1962, the idea that volunteers would serve a two-year term had become reality. The report explains that when the Peace Corps was first established, “it was decided” that “[v]olunteers would serve for two years, without salary or draft exemption.” See Peace Corps: 1st Annual Report to Congress for the Fiscal Year Ended June 30, 1962 at 8 (July 1962), http://www.jfklibrary.org (folder title “Peace Corps: First annual report, July 1962”; digital identifier JFKPOF-086-003-p0009). Thus, a two-year term was standard by the time President Kennedy signed the Order in April 1963. Background documentation about the Order itself also supports our conclusion that the President contemplated that a full term of service under the Order would be approximately two years. When the Director of the Bureau of the Budget 3 transmitted the proposed Order to the Attorney General for review in March 1963, he described the Order as “permit[ting] the Peace Corps to issue certificates of satisfactory service only to persons who had completed a full term of 24 months of service,” unless the exception for circumstances beyond the volunteer’s control applied. Letter for Robert F. Kennedy, Attorney General, from Arthur B. Focke, General Counsel, Bureau of the Budget at 2 (Mar. 12, 1963) (emphasis added). This reflects an understanding within the Kennedy Administration that noncompetitive eligibility depended on two years of service. We believe the Order is best interpreted in a manner consistent with its text and these indications of President Kennedy’s understanding of the Order at the time he signed it, particularly in light of the President’s authority to revise this executive order at any time. See Memorandum for Kenneth A. Lazarus, Associate Counsel to the President, from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, Re: Applicability of 3 C.F.R. Part 100 to the President and Vice President (Dec. 19, 1974) (interpreting an executive order in a manner consistent with public state- 3 The Bureau of the Budget was the predecessor agency of the Office of Management and Budget. See Reorg. Plan No. 2 of 1970, 35 Fed. Reg. 7959, reprinted in 5 U.S.C. app. 640 (2006). 5 37 Op. O.L.C. 1 (2013) ments President Johnson made at the time of the Order); cf. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139 (2008) (“stare decisis in respect to statutory interpretation has special force, for Congress remains free to alter what we have done” (internal quotation marks omitted)). Finally, we note that this interpretation of the Order would make its service commitment similar to that required in other Executive Branch programs that confer noncompetitive eligibility (typically at least a year, if not more). See, e.g., 5 C.F.R. § 315.607 (2012) (providing that Peace Corps personnel (not volunteers) may be eligible for a noncompetitive appointment if they complete “no less than 36 months of continuous service”); id. § 315.610 (2012) (providing that certain National Guard technicians may be eligible if they have served “at least 3 years as a technician”); Exec. Order No. 11219, § 1(c), 3 C.F.R. 127, 127 (1965 Supp.) (providing that present or former career officers or employees of the Foreign Service may be eligible upon completing “at least one year of continuous service”); 5 C.F.R. § 315.606 (2012) (same); id. § 315.609(b) (2012) (providing that career employees of the Panama Canal Commission may be eligible if they “served continuously for at least 1 year”); id. § 315.608 (2012) (providing that certain family members of federal employees officially assigned to an overseas area may be eligible after their sponsoring federal employees complete “52 weeks of creditable overseas service” (except in extraordinary circumstances)). To be sure, the President has delegated to the Director broad authority to prescribe the “terms and conditions of the service of volunteers,” see 22 U.S.C. § 2504(a) (2006); see also Exec. Order No. 12137, 3 C.F.R. 389 (1979 Comp.), and nothing in the Peace Corps Act or the Order would prevent the Director from changing the length of service for both traditional volunteers and PCRVs. Peace Corps Letter at 1. We do not think, however, that the Director’s general authority to change the length of volunteers’ service also includes the authority to modify a presidential understanding, conveyed by the Order, of the length of service that is necessary to earn noncompetitive eligibility. For these reasons, we conclude that that the Order is best read to permit the Director to confer noncompetitive eligibility only on those volunteers who complete approximately two years of service or who satisfy the terms of the circumstances beyond their control exception. 6 Certification of Peace Corps Response Volunteers for Noncompetitive Eligibility III. You also asked us to consider whether the Director may certify PCRVs for noncompetitive eligibility based on the exception for volunteers who complete “a lesser period of satisfactory service,” but who, “in the judgment of the Director of the Peace Corps,” (1) have provided “service . . . of sufficient duration to demonstrate their capability to complete satisfactorily a full term,” and (2) have failed to complete a full term “due to circumstances beyond their control.” Order § 3. In our view, this exception should not be read as a general rule that PCRVs who complete their entire assignments receive noncompetitive eligibility. The text of the language authorizes the Director to make exceptions in “circumstances beyond [the] control” of the volunteer, indicating that this authority is to be used on an individualized basis when unanticipated events require volunteers to truncate service otherwise expected to last “full terms” of approximately two years. That text does not fit the circumstances presented here. By agency design, a PCRV’s service lasts between three and twelve months; and a PCRV’s service does not terminate prematurely based on circumstances beyond his or her control. Moreover, certifying the entire class of PCRVs for noncompetitive eligibility under this exception would be inconsistent with agency practice. You have informed us that the Peace Corps has long implemented this exception on a case-by-case basis, for example, where a changed political climate makes a volunteer’s assigned country unsafe, where a volunteer has been a victim of sexual assault, or where some similarly grave, unforeseen circumstance arises. This consistent practice comports with the best reading of this exception. 4 For these reasons, we conclude that the 4 Under the Peace Corps’ established practice, PCRVs also would not satisfy the exception’s first requirement—that volunteers complete service of “sufficient duration to demonstrate their capability to complete . . . a full term” as the Order uses that phrase (i.e., approximately two years). Order § 3. Although nothing in the Order limits the Director’s discretion to determine what constitutes service of “sufficient duration,” you have informed us that the Peace Corps has long used one year of service—the upper limit of a Peace Corps Response term—as a benchmark to qualify for the exception. We understand that, until two years ago, the Peace Corps required volunteers to serve at least twelve months before they could be considered for a certificate under the exception. You explained that the Peace Corps will now consider volunteers with less than a year of 7 37 Op. O.L.C. 1 (2013) exception does not provide a basis for the Director to confer noncompetitive eligibility on PCRVs. VIRGINIA A. SEITZ Assistant Attorney General Office of Legal Counsel service in certain extraordinary circumstances, but that, as your guidelines note, “normally at least twelve consecutive months, including training,” will be required to qualify. See MS 285 Volunteer Description of Service and Certificate of Group Health Coverage § 5.3 (Aug. 26, 2011), http://files.peacecorps.gov/manuals/manual/200_Volunteers/280289_Volunteer_Transfers_Completions_of_Service_Termination/MS_285/Volunteer_ Description_of_Service_and_Certificate_of_Group_Health_Coverage.pdf (last visited Sept. 11, 2014). 8

Write a legal research memo on the following topic.

Certification of Peace Corps Response Volunteers for Noncompetitive Eligibility for Federal Employment Under Executive Order 11103 Under Executive Order 11103, which describes a “full term of service” as “approximately two years” for purposes of noncompetitive eligibility for federal employment, the Director of the Peace Corps may not issue certificates of satisfactory service to volunteers in the Peace Corps Response program (“PCRVs”) who serve between three and twelve months. The Director may not issue certificates of satisfactory service to PCRVs under the exception in Executive Order 11103 for those who do not complete a full term “due to circumstances beyond their control.” January 9, 2013 MEMORANDUM OPINION FOR THE GENERAL COUNSEL PEACE CORPS In Executive Order 11103, the President authorized the Director of the Peace Corps (“Director”) to issue certificates of satisfactory service to returning Peace Corps volunteers. These certificates provide volunteers with one year of noncompetitive eligibility for civil service appointments in the Executive Branch. See Exec. Order No. 11103, 3 C.F.R. 173 (1963 Supp.) (“Order”); 5 U.S.C. § 3301 (2006) (“The President may . . . prescribe . . . regulations for the admission of individuals into the civil service[.]”); id. § 3302 (“The President may prescribe rules governing the competitive service.”). The Order provides that only those volunteers “who have completed a full term of service (approximately two years)” are eligible for these certificates, but also allows the Director to issue certificates to volunteers who complete “a lesser period of satisfactory service if, in the judgment of the Director . . . their service was of sufficient duration to demonstrate their capability to complete satisfactorily a full term, and . . . their failure to complete a full term was due to circumstances beyond their control.” Order § 3. You asked whether the Director may issue certificates of satisfactory service not only to traditional Peace Corps volunteers, who serve terms of approximately 27 months, but also to volunteers in the Peace Corps Response program, a program in which volunteers complete shorter terms, 1 37 Op. O.L.C. 1 (2013) typically between three and twelve months. 1 Specifically, you asked whether Peace Corps Response Volunteers (“PCRVs”) complete the required “full term of service” under the Order by fulfilling a three-totwelve-month service obligation, notwithstanding the parenthetical in the Order describing a “full term of service” as “approximately two years.” Id. If not, you requested that we also consider whether the Director could issue certificates to PCRVs based on the Order’s exception for those who do not complete a full term “due to circumstances beyond their control.” Id. We conclude that, under the terms of the Executive Order, the Director may not issue certificates to PCRVs under either the full term of service requirement or the circumstances beyond their control exception. I. The Peace Corps Response program began in 1996 as a short-term volunteer program for those who had previously served as traditional Peace Corps volunteers. Peace Corps Letter at 2. The Peace Corps has since opened the program to qualified individuals with no prior Peace Corps experience, but the other features of the program have remained the same. Id. PCRVs complete assignments that are more specialized than those given to traditional volunteers. Their assignments “can be as short as three months and generally do not exceed 12 months.” Id. at 2. Aside from the shorter length of service and specialized work assignments, however, both the terms of PCRVs’ service and the benefits they receive are comparable to those of traditional volunteers. The only benefit that traditional volunteers currently receive that PCRVs do not is the certificate of satisfactory service for noncompetitive eligibility issued by the Director under Executive Order 11103. Executive Order 11103 states that “the head of any agency in the Executive Branch may appoint in the competitive service” (and, if the agency 1 See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal Counsel, from Bill Rubin, General Counsel, Peace Corps (June 19, 2012) (“Peace Corps Letter”). We also received the views of the Office of Personnel Management (“OPM”) regarding the issues addressed in this opinion. See Memorandum for John E. Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from Elaine Kaplan, General Counsel, Office of Personnel Management (Oct. 16, 2012) (“OPM Letter”). 2 Certification of Peace Corps Response Volunteers for Noncompetitive Eligibility has “an established merit system in the excepted service,” may appoint in the excepted service) “any person who is certified by the Director of the Peace Corps as having served satisfactorily as a Volunteer or Volunteer Leader under the Peace Corps Act” and who passes whatever examination is prescribed. Order §§ 1, 2. For “a period of one year after” certified volunteers complete their service (subject to extension under certain conditions), id. § 4, they are eligible to attain employment in the Executive Branch “outside of the competitive examining process,” OPM Letter at 3. This certification provides recipient volunteers a “significant” advantage in the federal hiring process. Id. Section 3 of the Order defines persons whom the Director may certify for a noncompetitive appointment: Certificates of satisfactory service for the purposes of this Order shall be issued only to persons who have completed a full term of service (approximately two years) under the Peace Corps Act: Provided, That such certificates may be issued to persons who have completed a lesser period of satisfactory service if, in the judgment of the Director of the Peace Corps, (1) their service was of sufficient duration to demonstrate their capability to complete satisfactorily a full term, and (2) their failure to complete a full term was due to circumstances beyond their control. Order § 3. II. The first issue is whether PCRVs qualify for a certificate of satisfactory service under the Order because they have completed “full term[s] of service under the Peace Corps Act” by virtue of completing their three-totwelve-month assignments as PCRVs, even though PCRVs’ terms are considerably shorter than the approximately 27-month terms served by traditional Peace Corps volunteers. 2 Based on both the text and the conOPM concluded that PCRVs cannot receive certificates of satisfactory service based in part on its view that PCRVs are not “volunteers” as the term is used in the Order. OPM Letter at 2. You responded that the Peace Corps considers PCRVs “volunteers” under the Peace Corps Act and noted that “the Executive Order . . . [does not] distinguish[] between 2 3 37 Op. O.L.C. 1 (2013) text of Executive Order 11103, we conclude that the Peace Corps Response program’s three-to-twelve-month term does not qualify as a “full term of service” as the Order uses that phrase. To begin with, the text of the Order indicates that the President expected that volunteers receiving noncompetitive eligibility would have completed terms of service more substantial than the three-to-twelvemonth assignments PCRVs typically receive. The parenthetical immediately following the full term of service requirement states that a full term runs “approximately two years.” Order § 3. We recognize, as you suggest, that this language could be read as either prescriptive (requiring that a full term of service be approximately two years) or descriptive (noting that the average term of service for a volunteer at the time of the Order was approximately two years). See Peace Corps Letter at 2. But we do not think characterizing the parenthetical as descriptive changes the analysis. Even if the parenthetical simply describes President Kennedy’s understanding of the length of a full term of service when he signed the Order, it nonetheless indicates that the President intended to confer noncompetitive eligibility on those Peace Corps volunteers who serve approximately two years (or who otherwise qualify through the circumstances beyond their control exception). In light of this parenthetical, it is unclear that the President would have extended noncompetitive eligibility to PCRVs had that short-term program existed in 1963. We believe that a “full term of service” under the Order is best read to mean approximately two years of service. The context of the issuance of the Order provides considerable support for this interpretation. When President Kennedy signed the Order, he would have understood a full term of service to run approximately two years. Before the Peace Corps was established, a report prepared for the President described the proposed volunteer program as having a “usual length of service . . . [of ] at least one year, preferably two, and perhaps in some cases three or more years.” Sargent Shriver, Report to the Presicategories of Volunteers.” E-mail for John E. Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from Jan Miller, Peace Corps, Re: Response to OPM opinion (Nov. 26, 2012). Because our analysis does not turn on whether PCRVs are volunteers within the meaning of the Order, we need not resolve this definitional issue and assume for purposes of this opinion that PCRVs are “volunteers.” 4 Certification of Peace Corps Response Volunteers for Noncompetitive Eligibility dent on the Peace Corps at 10 (Feb. 22, 1961), http://www.jfklibrary.org (folder title “Peace Corps: Shriver report and recommendations, February 1961”; digital identifier JFKPOF-085-014-p0037). By the time the Peace Corps issued its first annual report in July 1962, the idea that volunteers would serve a two-year term had become reality. The report explains that when the Peace Corps was first established, “it was decided” that “[v]olunteers would serve for two years, without salary or draft exemption.” See Peace Corps: 1st Annual Report to Congress for the Fiscal Year Ended June 30, 1962 at 8 (July 1962), http://www.jfklibrary.org (folder title “Peace Corps: First annual report, July 1962”; digital identifier JFKPOF-086-003-p0009). Thus, a two-year term was standard by the time President Kennedy signed the Order in April 1963. Background documentation about the Order itself also supports our conclusion that the President contemplated that a full term of service under the Order would be approximately two years. When the Director of the Bureau of the Budget 3 transmitted the proposed Order to the Attorney General for review in March 1963, he described the Order as “permit[ting] the Peace Corps to issue certificates of satisfactory service only to persons who had completed a full term of 24 months of service,” unless the exception for circumstances beyond the volunteer’s control applied. Letter for Robert F. Kennedy, Attorney General, from Arthur B. Focke, General Counsel, Bureau of the Budget at 2 (Mar. 12, 1963) (emphasis added). This reflects an understanding within the Kennedy Administration that noncompetitive eligibility depended on two years of service. We believe the Order is best interpreted in a manner consistent with its text and these indications of President Kennedy’s understanding of the Order at the time he signed it, particularly in light of the President’s authority to revise this executive order at any time. See Memorandum for Kenneth A. Lazarus, Associate Counsel to the President, from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, Re: Applicability of 3 C.F.R. Part 100 to the President and Vice President (Dec. 19, 1974) (interpreting an executive order in a manner consistent with public state- 3 The Bureau of the Budget was the predecessor agency of the Office of Management and Budget. See Reorg. Plan No. 2 of 1970, 35 Fed. Reg. 7959, reprinted in 5 U.S.C. app. 640 (2006). 5 37 Op. O.L.C. 1 (2013) ments President Johnson made at the time of the Order); cf. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139 (2008) (“stare decisis in respect to statutory interpretation has special force, for Congress remains free to alter what we have done” (internal quotation marks omitted)). Finally, we note that this interpretation of the Order would make its service commitment similar to that required in other Executive Branch programs that confer noncompetitive eligibility (typically at least a year, if not more). See, e.g., 5 C.F.R. § 315.607 (2012) (providing that Peace Corps personnel (not volunteers) may be eligible for a noncompetitive appointment if they complete “no less than 36 months of continuous service”); id. § 315.610 (2012) (providing that certain National Guard technicians may be eligible if they have served “at least 3 years as a technician”); Exec. Order No. 11219, § 1(c), 3 C.F.R. 127, 127 (1965 Supp.) (providing that present or former career officers or employees of the Foreign Service may be eligible upon completing “at least one year of continuous service”); 5 C.F.R. § 315.606 (2012) (same); id. § 315.609(b) (2012) (providing that career employees of the Panama Canal Commission may be eligible if they “served continuously for at least 1 year”); id. § 315.608 (2012) (providing that certain family members of federal employees officially assigned to an overseas area may be eligible after their sponsoring federal employees complete “52 weeks of creditable overseas service” (except in extraordinary circumstances)). To be sure, the President has delegated to the Director broad authority to prescribe the “terms and conditions of the service of volunteers,” see 22 U.S.C. § 2504(a) (2006); see also Exec. Order No. 12137, 3 C.F.R. 389 (1979 Comp.), and nothing in the Peace Corps Act or the Order would prevent the Director from changing the length of service for both traditional volunteers and PCRVs. Peace Corps Letter at 1. We do not think, however, that the Director’s general authority to change the length of volunteers’ service also includes the authority to modify a presidential understanding, conveyed by the Order, of the length of service that is necessary to earn noncompetitive eligibility. For these reasons, we conclude that that the Order is best read to permit the Director to confer noncompetitive eligibility only on those volunteers who complete approximately two years of service or who satisfy the terms of the circumstances beyond their control exception. 6 Certification of Peace Corps Response Volunteers for Noncompetitive Eligibility III. You also asked us to consider whether the Director may certify PCRVs for noncompetitive eligibility based on the exception for volunteers who complete “a lesser period of satisfactory service,” but who, “in the judgment of the Director of the Peace Corps,” (1) have provided “service . . . of sufficient duration to demonstrate their capability to complete satisfactorily a full term,” and (2) have failed to complete a full term “due to circumstances beyond their control.” Order § 3. In our view, this exception should not be read as a general rule that PCRVs who complete their entire assignments receive noncompetitive eligibility. The text of the language authorizes the Director to make exceptions in “circumstances beyond [the] control” of the volunteer, indicating that this authority is to be used on an individualized basis when unanticipated events require volunteers to truncate service otherwise expected to last “full terms” of approximately two years. That text does not fit the circumstances presented here. By agency design, a PCRV’s service lasts between three and twelve months; and a PCRV’s service does not terminate prematurely based on circumstances beyond his or her control. Moreover, certifying the entire class of PCRVs for noncompetitive eligibility under this exception would be inconsistent with agency practice. You have informed us that the Peace Corps has long implemented this exception on a case-by-case basis, for example, where a changed political climate makes a volunteer’s assigned country unsafe, where a volunteer has been a victim of sexual assault, or where some similarly grave, unforeseen circumstance arises. This consistent practice comports with the best reading of this exception. 4 For these reasons, we conclude that the 4 Under the Peace Corps’ established practice, PCRVs also would not satisfy the exception’s first requirement—that volunteers complete service of “sufficient duration to demonstrate their capability to complete . . . a full term” as the Order uses that phrase (i.e., approximately two years). Order § 3. Although nothing in the Order limits the Director’s discretion to determine what constitutes service of “sufficient duration,” you have informed us that the Peace Corps has long used one year of service—the upper limit of a Peace Corps Response term—as a benchmark to qualify for the exception. We understand that, until two years ago, the Peace Corps required volunteers to serve at least twelve months before they could be considered for a certificate under the exception. You explained that the Peace Corps will now consider volunteers with less than a year of 7 37 Op. O.L.C. 1 (2013) exception does not provide a basis for the Director to confer noncompetitive eligibility on PCRVs. VIRGINIA A. SEITZ Assistant Attorney General Office of Legal Counsel service in certain extraordinary circumstances, but that, as your guidelines note, “normally at least twelve consecutive months, including training,” will be required to qualify. See MS 285 Volunteer Description of Service and Certificate of Group Health Coverage § 5.3 (Aug. 26, 2011), http://files.peacecorps.gov/manuals/manual/200_Volunteers/280289_Volunteer_Transfers_Completions_of_Service_Termination/MS_285/Volunteer_ Description_of_Service_and_Certificate_of_Group_Health_Coverage.pdf (last visited Sept. 11, 2014). 8

Write a legal research memo on the following topic.

Eligibility of a Dual United States Citizen for a Paid Position with the Department of Justice Section 606 of the Treasury and General Government Appropriations Act of 1999 does not bar the Department of Justice from employing, in a paid position, a United States citizen who is also a citizen of another country August 26, 1999 M e m o r a n d u m O p in io n f o r t h e D ir e c t o r O f f ic e o f A t t o r n e y P e r s o n n e l M a n a g e m e n t D e p a r t m e n t o f J u s t ic e You have asked whether, under section 606 of the Treasury and General Government Appropriations Act, 1999, Pub. L. No. 105-277, 112 Stat. 2681480, 2681-513 to -514 (1998)1 (“ §606” ), the Department of Justice may employ, in a paid position, a U.S. citizen who is also a citizen of another country (“ dual U.S. citizen” ). Section 606 prohibits the Department of Justice from using appro­ priated funds to employ persons whose post of duty is in the continental United States unless they are “ citizen[s] of the United States” or otherwise excepted.2 Id. 112 Stat. at 2681-513. We conclude that §606 does not bar the Department of Justice from employing a dual U.S. citizen. I Section 606 provides as follows: Unless otherwise specified during the current fiscal year, no part of any appropriation contained in this [Act] or any other Act shall be used to pay the compensation of any officer or employee of the Government of the United States . . . whose post of duty is in the continental United States unless such person: (1) is a citizen of the United States; (2) is a person in the service of the United States on the date of enactment of this Act . . . who, being eligible for citizenship, has fded a declaration of intention to become a cit­ izen . . . (3) is a person who owes allegiance to the United States; (4) is an alien from Cuba, Poland, South Vietnam, the countries of the former Soviet Union, or the Baltic countries lawfully admitted . . . for permanent residence; (5) is a South Vietnamese, Cambodian, or Laotian refugee paroled in the United States after ‘ This provision is set forth as a note to 5 U S.C. §3101 (Supp IV 1998) 2 This memorandum addresses only dual U S. citizens whose second citizenship does not place them within one of the excepted categories 181 Opinions o f the Office o f Legal Counsel in Volume 23 January 1, 1975; or (6) is a national of the People’s Republic of China who qualifies for adjustment of status pursuant to the Chi­ nese Student Protection Act of 1992. . . . This section shall not apply to citizens of Ireland, Israel, or the Republic of the Phil­ ippines, or to nationals of those countries allied with the United States in a current defense ef fort . . . . 5 U.S.C. § 3101 note (Supp. IV 1998). In a 1996 memorandum to your office, we addressed the closely related issue of the eligibility for employment of dual nationals who are not citizens of the United States, but who enjoy, as an incident of one of their nationalities, status in an excepted category ( “ noncitizen dual nationals” ). See Eligibility o f a Noncit­ izen D ual N ational f o r a Paid Position Within the Department o f Justice, 20 Op. O.L.C. 366 (1996) ( “ 1996 Memorandum” ). In examining the application of §606 to that situation,3 we noted that although noncitizen dual national applicants “ would seem eligible for hire” by virtue of their membership in one of the excepted categories, these applicants simultaneously would seem to be ineligible, because of their membership in the residual category of nonexcepted persons. Id. at 367. Because we did not believe that the plain language of § 606 decided the question, we turned to the purposes of the statutory provision. The 1996 Memo­ randum concluded that a blanket rule of either ineligibility or eligibility for employment of such noncitizen dual nationals would be in tension with one of “ the various, and sometimes conflicting, goals of section 606.” 4 Id. at 369. As a result, noncitizen dual nationals’ eligibility for employment under §606 had to be evaluated on a case by case basis, by applying the concept of “ effective, dominant nationality.” Id.5 If the applicant’s “ effective, dominant nationality” ^The analogous statutory provision m 1996 was section 606 o f the Treasury, Postal Service, and General Govern­ ment A ppropriations Act, 1997, Pub L No. 104-208, 110 Stat. 3009-314, 3009-354 (1996). Section 606, as part o f an appropriations bill, has been reenacted every year, largely in its current form, since 1938 4 As the 1996 M emorandum observed' The general exclusion o f noncitizens from federal employment in the United States seems to be aimed chiefly at protecting national security by ensunng the loyalty o f Federal employees, encouraging noncitizens who seek Federal em ploym ent to become naturalized, and shielding United States nationals from competi­ tion in a substantial sector o f the labor m arket . The exception for nationals of “ allied” foreign States, on the other hand, serves distinct, indeed often contrary, interests: it allows Federal employers greater flexibility in m eeting their personnel needs, it expresses [the] Nation’s solidarity with its allies; and it signifies confidence that the nationals o f such allies are unlikely to betray the trust that the United States Government has reposed in them. Any simple, “ bright line” rule that treated dual nationals in the applicant’s position as eligible— or as ineligible— would promote some of these policies only at the expense o f others. 20 Op O.L.C. at 367, see also Hampton v M ow Sun Wong, 426 U.S 88, 108, 109 (1976) ("T h e stated purpose of the [1938 provision] was to give preference to American citizens during a penod of widespread unemployment,” and its repeated enactment signifies “ continuing interest in giving preference, for reasons unrelated to the efficiency of the federal service, to citizens over aliens.” ). 5 See supra note 3 (citing Nottebohm Case (Liechtenstein v. Guatemala), 1955 I C.J. 4, 22 (Apr 6)); Note, Claims o f Dual Nationals in the M odem Era The Iran-United States Claims Tribunal, 83 Mich. L Rev. 597, 613 (1984). 182 Eligibility o f a Dual United States Citizen fo r a Paid Position with the Department o f Justice would place him or her in an excepted category, he or she would be eligible; otherwise the applicant would be deemed ineligible. II 0 At the very least, in light of the 1996 Memorandum, the Department of Justice can hire dual U.S. citizens where their effective, dominant nationality is with the United States. To conclude otherwise — that §606 bars the hiring of all dual U.S. citizens — would produce the anomalous result of placing U.S. citizens in a worse position than noncitizens. That result would be particularly untenable here where neither the language nor the purposes of the statute support such a reading. The only question, then, is whether dual U.S. citizens are in a better position for pur­ poses of this statute than the noncitizen dual nationals who were the focus of the 1996 Memorandum — in other words, whether the inquiry into “ effective, dominant nationality” is also necessary for purposes of considering the eligibility of dual U.S. citizens for employment. The 1996 Memorandum read into the statute the concept of effective, dominant nationality. It is not entirely clear that we could not have concluded, from the language and structure of §606, that the second nationality of the applicant is irrelevant if the applicant possesses one nationality that places him or her in an excepted category. The statute does not define ineligibility for employment, except by providing that an eligible person must possess any of six separate characteris­ tics, and the noncitizen dual national in question did possess one of those six characteristics. Nevertheless, we interpreted the statute to incorporate the inquiry into effective, dominant nationality, and we do not need to revisit that opinion at this time. There are strong arguments that the potential employees here, being citizens of the United States, are not subject to the test of effective, dominant nationality. Generally, U.S. law evidences hostility towards the notion of inferior classes of American citizenship. Cf. Schneider v. Rusk, 377 U.S. 163, 168—69 (1964) (striking down statute providing for denaturalization of naturalized citizens who returned to their original nation to reside for three or more years, noting that it “ creates indeed a second-class citizenship” ).6 Furthermore, although U.S. policy disfavors dual citizenship,7 it recognizes that in many cases the status of 6 U S. law’s intolerance for second-class citizenship leads, for example, to assertions that naturalized citizens gen­ erally enjoy the same rights as natural bom citizens See Knauer v. United States, 328 U.S. 654, 658 (1946) (“ C itizen­ ship obtained through naturalization is not a second-class citizenship It has been said that citizenship carries with it all of the nghts and prerogatives of citizenship obtained by birth in this country ‘save that o f eligibility to the Presidency.’ ” ); United States v. Klimavicius, 847 F 2d 28, 32 (1st Cir 1988) (“ Once naturalized, a person enjoys the same nghts and opportunities as a nauve bom citizen.” ). 1 See, e g .. Von Dunser v. Aronoff, 915 F 2 d 1071, 1073 (6th Cir 1990) ( “ In general, Amencan law abhors the status of dual citizenship.” ), Sadat v. Mertes, 615 F 2 d 1176, 1184 (7th C ir 1980) ( “ The official policy of this government has been to discourage the incidence of dual nationality.” and noting “ ambivalent policy” o f U.S. government toward dual nauonality). 183 Opinions of the Office o f Legal Counsel in Volume 23 dual U.S. citizenship may be a function of the laws of another country and is not necessarily a status that an individual may control.8 See, e.g., Von Dunser, 915 F.2d at 1073 (footnote omitted) (“ [D]ual citizenship exists, largely as a result of conflicts in nations’ ideas of citizenship. Following the rule that each nation is permitted to determine who its citizens are, American law reluctantly recognizes the existence of dual citizenship in certain cases, even where the party has renounced allegiance to foreign powers.” ) In fact, courts have repeatedly empha­ sized that: The United States recognizes that a person may properly be simultaneously a citizen o f this country and of another. Neither status in itself or in its necessary implications is deemed incon­ sistent with the other. “ . . . The concept of dual citizenship recog­ nizes that a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. The mere fact that he asserts the rights of one citizenship does not with­ out more mean that he renounces the other. . . . [D]ual citizenship . . . could not exist if the assertion of rights or the assumption o f liabilities of one were deemed inconsistent with the maintenance o f the other.” Jalbuena v. Dulles, 254 F.2d 379, 381 (3d Cir. 1958) (exercise of routine privilege o f Philippine citizenship, applying for Philippine passport and subscribing oath to support Philippine Constitution, cannot deprive dual U.S./Philippine citizen of U.S. citizenship) (quoting Kawakita v. United States, 343 U.S. 717, 723-25 (1952)).9 8There are a num ber of w ays in which an individual w ho holds U S. citizenship can also hold the citizenship o f another country, many o f which will depend on the laws o f the foreign country, as well as the laws of the Umted States For example, a child bom in the United States to alien parents acquires U.S. citizenship at birth and may also acquire the citizenship of his o r her parents. A child bom abroad to U S. citizen parents may acquire the U.S. citizenship o f his o r her parents, a s well as the citizenship of the country of birth A U.S. citizen who marries an alien may thereby acquire the nationality o f his or her spouse, under his or country’s laws A U.S citizen minor w hose parents become naturalized in a foreign state may thereby acquire the new nationality of the parents. Also, some states continue to claim persons as their nationals even after they have renounced ciuzenship on becoming naturalized in the United States. See 7 Charles Gordon et a l , Immigration Law and Procedure § 91.01 [3][d] (1999); Sadat, 615 F.2d at 1184 n 10 (enumerating non-exclusive list of categones of dual U.S citizens); see also Restatem ent (Third) o f Foreign Relations Law o f the United States §212 and Reporters’ Notes (1987). 9 See Kawakita, 343 U.S at 725 (“ [D]ual citizenship presupposes nghts of citizenship in each country ” ); see also Lehmann v Acheson, 206 F2d 592, 5 97-98 (3d Cir. 1953) (same); Terada v. Dulles, 121 F Supp. 6, 11 (D. Hawaii 1954) (same), R u e ff v. Brownell, 116 F. Supp 298, 306 (D.N.J 1953) (same), Okimura v Acheson, 111 F. Supp. 303, 305 (D Hawaii 1952) (same), cf. Coury v. Prot, 85 F 3d 244, 2 4 7 ^ 8 , 250 (5th Cir. 1996) (rejecting dual U.S. citizen’s argument that diversity jurisdiction should be available based on non-U.S nationality, noting that “ there is an emerging consensus among courts that, for a dual national citizen, only the A mencan citizen­ ship is relevant foT purposes o f diversity under 28 U S.C § 1332 ” ) (citing cases); but see Rogers v Bellei, 401 U.S 815, 8 22-45 (1971) (upholding statute providing that dual citizens bom abroad would lose their U.S. citizenship unless they fulfilled a residency requirement m the United States, but concluding that result does not create impermis­ sible inferior classes o f U S citizenship because individuals affected by statute are not “ Fourteenth-Amendmentfirst-sentence citizen[s],” “ bom or naturalized in the United States” ) Even Bellei does not support the creation o f a broad rule o f second-class citizenship based on dual citizenship status. The Bellei Court indicated that according 184 Eligibility o f a Dual United States Citizen fo r a Paid Position with the Department o f Justice Without deciding whether Congress could place restrictions on the employment opportunities of dual U.S. citizens by virtue of their dual citizenship status, we would look for a much clearer statement before inferring that Congress had intended to create such “ second class” citizenship based solely on dual citizenship status. We do not read the language in this appropriations provision to reach that result. We conclude that §606 does not create any burdens on the employability of dual U.S. citizens by the Department of Justice that do not exist for sole U.S. citizens. No inquiry regarding their “ effective, dominant nationality” is necessary for purposes of establishing the dual U.S. citizen’s eligibility for employment under that provision. Section 606, in a fairly straightforward manner, carves out an exception for U.S. citizens to the general bar on employment. Because dual U.S. citizens are U.S. citizens, they fall into the excepted category. At the same time, in particular cases, the nature of individual applicants’ ties to the U.S. or the strength of their links to their U.S. citizenship may be relevant when considering them for employment with the Department of Justice, particu­ larly when questions of security or loyalty may arise. The manner in which an individual applicant has held or exercised his or her dual citizenship status — or a variation on the “ effective, dominant nationality” test — may be most appro­ priately incorporated into the hiring process, for example, as one of the many factors to be considered in decisions to grant or withhold security clearances for employment.10 III We conclude that § 606 does not bar the hiring of dual U.S. citizens by the Department of Justice. Although U.S. policy generally disfavors the holding of different levels of favor to different types o f U S . citizenship would be unacceptable — at least for those whose citizenship claim is “ bottomed upon Fourteenth Amendment citizenship,” 401 U S at 835, that is, who obtained U S. citizenship by birth or naturalization in the United States. According to the Bellei Court, for those who do not qualify as Fourteenth Amendment citizens— and whose citizenship claim is thus “ wholly statutory,” such as Mr. Bellei, id. at 833— Congress may place a statutory condition subsequent for the purpose o f maintaining that citizenship Id. The Bellei Court thus rejected the dissent's criticism that its holding presented the danger of creating a class of “ second class ciuzen[s] ” Bellei, 401 U S at 835-36, but see id at 837-39 (Black, J. dissenting) (criticizing majority opinion for suggesting the existence o f a “ hierarchy of citizenship” ). To the extent that a dual U S. citizen may also be a Fourteenth Amendment citizen, under Bellei he or she would be entitled to be considered of the same class of citizens as sole U S citizens See also Afroyim v. Rusk, 387 U.S 253, 262 (1967) ( “ Once acquired, . . Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Govern­ ment, the States, or any other governmental unit.” ) Accepting the general proposition that dual U.S. citizens who are Fourteenth Amendment citizens are constitutionally protected from badges of second-class citizenship, we see no reason to read any further distinctions among different types o f dual citizens into § 606. 10Such an approach would not be unprecedented. See, e g., 32 C.F.R. §§ 147 5, 154 1, 154.2, 154 6, 154 7, 154 16; 32 C.F.R Pt. 154, App. H (1998) (Department o f Defense regulations governing grant of security clearances to employees, limiting grant o f security clearances to U.S. citizens in the absence of specified compelling circumstances, and taking “ exercise o f dual citizenship,” § 147 5(b)(1), into account as one of many factors in determining whether or not to grant clearance); c f 10 C.F.R. § § 7 1 0 2 , 71 0 4 , 7 1 0 8 (1998) (Department of Energy regulations governing grant of secunty clearances to employees, not listing dual citizenship as a formal criterion to be considered, but using “ exercis[e of] rights o f citizenship conferred by a country other than the United States,” § 7104(e), as an example of a circumstance raising a question concerning “ an individual’s national allegiance,” i d , and requiring suspension o f processing o f application for clearance until questions o f security risk are resolved) 185 Opinions o f the Office o f Legal Counsel in Volume 23 dual citizenship, such a policy has not served as authority for affording dual citi­ zens as a class fewer benefits or privileges than are given to those who are sole U.S. citizens. Indeed, as U.S. citizens, dual U.S. citizens should be presumed eligible for employment under § 606. How the individual applicant has held or exercised his or her dual citizenship status may be incorporated as one of many factors to be considered, for example, in decisions to grant or withhold security clearances for employment. BETH NOLAN Deputy Assistant Attorney General Office o f Legal Counsel 186

Write a legal research memo on the following topic.

Presidential Authority to Extend Deadline for Submission of an Emergency Board Report Under the Railway Labor Act T h e P re s id e n t m a y re q u ire an E m e rg e n c y B o a rd u n d e r th e R a ilw a y L a b o r A c t to s u b m it its r e p o rt b e fo re th e sta tu to ry d e a d lin e , b u t h e m a y n o t e x te n d th a t th irty -d a y d e a d lin e u n le s s th e p a rtie s in v o lv e d h av e e n te re d in to a s id e a g re e m e n t e x te n d in g th e sta tu s q u o p e rio d d u rin g w h ic h th e y re fra in fro m self-h e lp . T h e re is s u b sta n tia l d o u b t as to w h e th e r a c o u rt w o u ld c o n c lu d e th a t s u c h a s id e a g re e m e n t b e tw e e n th e p a rtie s n o t to re s o rt to se lf-h e lp is e q u ita b ly e n fo rc e a b le u n d e r th e N o rris L a G u a rd ia A c t. T h e P re s id e n t d o e s n o t h a v e th e a u th o rity to im p o s e a s ec o n d s ta tu s q u o p e rio d b y c o n v e n in g a s e c o n d E m e rg e n c y B o a rd o r re c o n v e n in g th e o rig in a l B o ard . March 13, 1990 M e m o r a n d u m O p in io n f o r th e A s s o c ia t e C o u n s e l t o t h e P r e s id e n t This memorandum responds to your request for our views as to the extent of the President’s power to alter the length of the thirty-day time period within which an Emergency Board appointed under section 10 of the Rail­ way Labor Act (“RLA”), 45 U.S.C. § 160, must submit its report to the President. As explained more fully below, we conclude that, because the filing of the report has specific legal consequences, the President does not have the authority to unilaterally extend the statutory deadline. He may, however, shorten the time for filing a report. We also conclude that the President may grant an extension in situations where the parties involved have agreed to extend the period during which they will refrain from selfhelp. Given the lack of case authority, however, it is difficult to determine whether a court would equitably enforce such an agreement. In our view, there is no more than an even chance that a court would conclude that such agreements are equitably enforceable despite the Norris-LaGuardia Act, and there remains a substantial litigation risk that a court would reach a contrary conclusion. Finally, we conclude that the President does not have the authority 57 to impose a new status quo period creating a second Emergency Board. L lackgrounnidl We understand that under National Mediation Board (“NMB”) auspices, the National Railway Labor Conference and seven of the affected railway labor organizations (collectively “the parties”)1 have agreed to an extended two-phase Emergency Board procedure for addressing all of the unresolved issues in the current round of national bargaining. Under the contemplated procedure, the National Mediation Board would proffer arbitration to the parties on all of the outstanding issues, and the parties would decline the proffer, thus triggering a thirty-day “cooling-off’ period. See 45 U.S.C. § 155 First. The NMB would then promptly recommend that the President appoint an Emergency Board under section 10 of the RLA, 45 U.S.C.§ 160. Although the Emergency Board would be established to address all issues involved in the collective bargaining dispute, it would produce two separate reports, with the first addressing the health and welfare issues and the final report addressing the wages and rules issues. As soon as the health and welfare report was issued, the NMB would, at the request of the parties, engage in further intensive emergency mediation on the wages and rules issues. In order to allow the Emergency Board sufficient time to prepare its reports, the parties have agreed to an extension of the deadline for submission of the Emergency Board’s final report to the President. Specifically, the parties have requested that all reports and recommendations o f the Emergency Board be issued by September 15, 1990, and the parties have agreed to any reason­ able request for an extension of time of the Emergency Board to allow ample time for hearings, mediation and formulation of recommendations. The parties have also agreed not to resort to self-help until after the expira­ tion o f the thirty-day RLA statutory ‘cooling-off’ period following the report by the Emergency Board on the Wage and Rules issues, and then only if Congress is in session. We understand that this proposal is only one of several under consider­ ation. Accordingly, this memorandum discusses general principles concerning the limits on altering the RLA procedures, rather than analyzing the particu­ lars o f any specific proposal. EL Discussions Section 10 o f the Railway Labor Act provides that, once created, an Emer­ ' W e a re in fo rm e d b y the N M B that th e re are o th e r la b o r o rg anizations that have yet to agree to this p ro c e d u re . 58 gency Board “shall investigate promptly the facts as to the dispute and make a report thereon to the President within thirty days from the date of its creation.” 45 U.S.C. § 160. Section 10 further provides that “ [a]fter the creation of such board and for thirty days after such board has made its report to the President, no change, except by agreement, shall be made by the parties to the controversy in the conditions out of which the dispute arose.” Id. Thus, on its face the statute appears to contemplate a status quo period of no more than sixty days after creation of an Emergency Board. A. President’s pow er to alter deadline fo r submitting report 1. President may not unilaterally extend deadline We believe that the President may not unilaterally extend the deadline for submission of the Emergency Board report. First, the language of the stat­ ute does not provide for any extension in the thirty-day time period within which the Emergency Board must submit its report. Moreover, the legisla­ tive history indicates a fairly clear intent not to permit extensions of the reporting deadline and the subsequent start of the thirty-day cooling-off pe­ riod. Indeed, Congress, in enacting the RLA, specifically rejected an amendment that would have authorized unilateral presidential extensions of the reporting deadline. In the House hearings on the bill, Congressman Burtness questioned rep­ resentatives of both labor and management about the adequacy of the thirty-day time period. Mr. Richberg, the counsel for the organized railway employees, stated that thirty days would be adequate, that the Emergency Board provision had been the subject of very difficult negotiation, and that because of the status quo provision, the parties did not want an Emergency Board that would “operate indefinitely after a controversy has gone to this stage.” Railroad Labor Disputes: Hearings on H.R. 7180 Before the House Comm, on Interstate and Foreign Commerce, 69th Cong., 1st Sess. 100 (1926) (“House Hearings").2 Mr. Thom, the General Counsel of the Association of Railway Executives, testified to the same effect, explaining that the thirtyday period was the result of a compromise between labor and management, that this was a significant concession, and that the parties involved did not want “anything but a prompt method of dealing with the situation in the case of an emergency board.” Id. at 128. Apparently not satisfied with these responses, Congressman Burtness of­ fered an amendment on the floor of the House that would have provided that “the President may in his discretion extend such time in which the report is 2 T h e Su p rem e C ourt has repeatedly noted that, because the R LA w as frankly a ck n o w led g ed to be “ an a g re em en t w o rk ed out betw een m anagem ent and labor, and ratified by the C o n g ress and the P resid e n t," the “ statem en ts o f the spokesm en fo r th e tw o parties m ade in the h earings on the proposed A ct are e n title d to great w eight in th e construction o f the A ct.” Chicago & N.W. Ry. v. United Transp. Union, 40 2 U S 5 7 0 ,5 7 6 (1971). 59 to be made an additional period of not to exceed thirty days.” Staff of Subcomm. on Labor, Senate Comm, on Labor and Pub. Welfare, 93d Cong., 2d Sess., Legislative History o f the Railway Labor Act, As Amended 453 (Com m . Print 1974) (reprinting congressional debates). Congressman Burtness argued that thirty days would often not be sufficient time and that there would be no danger in allowing the President to have this discretion to extend the deadlines. Id. The amendment was rejected with little debate. Id. We recognize that it might be argued that an extension is permissible because the thirty-day period is meant merely to be directory rather than mandatory. Cf. United States v. Air Florida, Inc., 534 F. Supp. 17, 20 (S.D. Fla. 1982) (thirty-day time period in which NMB, under section 2 Ninth of the RLA, must certify conclusions of representational dispute, was “direc­ tory rather than mandatory;” accordingly, failure of NMB to meet deadline did not invalidate its investigation and subpoena request); see also System F ed ’n No. 40, Ry. Employees D e p ’t v. Virginian Ry., 11 F. Supp. 621, 627 (E.D. Va. 1935), a ff’d , 84 F.2d 641 (4th Cir. 1936), aff'd, 300 U.S. 515 (1937). In light o f the legislative history of the provision, however, it would be difficult to conclude that the thirty-day statutory deadline was merely m eant to be directory, rather than mandatory. Indeed, were the deadline read to be merely directory, the President could unilaterally extend the re­ porting date, thus effectively extending the status quo period. An Emergency Board would be able to achieve the same result simply by delaying the submission o f its report. Either of these conclusions would directly contra­ dict the intent of the RLA drafters as expressed in the legislative history. O ur conclusion is not altered by the general rule of construction that a “statutory time period is not mandatory unless it both expressly requires an agency or public official to act within a particular time period and specifies a consequence for failure to comply with the provision.” Thomas v. Barry, 729 F.2d 1469, 1470 n.5 (D.C. Cir. 1984) (quoting Fort Worth N a t’l Corp. v. FSLIC, 469 F.2d 47, 58 (5th Cir. 1972)); see also St. Regis Mohawk Tribe v. Brock, 769 F.2d 37, 41 (2d Cir. 1985) (collecting cases), cert, denied, 476 U.S. 1140 (1986); Usery v. Whitin Machine Works, Inc., 554 F.2d 498, 501 (1st Cir. 1977). The statutory time table at issue defines a narrow exception to the parties’ rights to use self-help. .General rules of construction cannot be used to defeat these specific restrictions and create a unilateral, discre­ tionary ability to derogate from these rights. Furthermore, we question whether this general rule of construction could be applied to contradict “clear indications of congressional intent that the limitations are to be strictly en­ forced.” U sery, 554 F.2d at 501. In any event courts would likely hold that application of this rule indi­ cates that the deadline in section 10 is mandatory. Section 10 expressly requires the Emergency Board to submit its report “within thirty days from the date of its creation.” 45 U.S.C. § 160. Moreover, although on its face the RLA does not specify the consequences of the late filing of an Emer­ gency Board report, it seems clear from the above discussion of the legislative 60 history that the RLA effectively penalizes late reports by failing to toll the start of the statutory cooling-off period, thus refusing to extend the status quo period beyond sixty days. Finally, as discussed more fully below, we believe that courts would likely give significant weight to any construction of the Act that was supported by long-established administrative practice. In this regard, we are not aware o f any instance in the sixty-four years of practice under the RLA where the President unilaterally extended the time for report over the objection of the parties.3 The information supplied to us by the NMB indicates that exten­ sions have generally been made only upon the request of the parties, who generally made a separate side agreement extending the status quo. Accordingly, we conclude that the thirty-day deadline for the submission of the report is mandatory, and that it may not be extended by the President or by an Emergency Board. 2. P residen t’s pow er to shorten deadline An Emergency Board is appointed by the President and is within the executive branch. Nothing in the language of the statute even purports to limit the President’s constitutional authority to supervise the board. Indeed, the legislative history of the Act appears to contemplate that the board would function at the direction and control of the President.4 Accordingly, we believe that the President may alter the deadline within which an Emergency Board must submit its report, so long as the new deadline is within the statutory thirty-day time period. The President may therefore require the board to submit its report in less than thirty days. B. Extension o f report deadline with the consent o f the parties We note that research by the NMB staff indicates that at least fifty Emer­ gency Boards created since 1960 have submitted their reports more than thirty days after their creation. With apparently few exceptions5, these ex­ tensions were the result of requests by the parties or the board that an extension be granted by the President, accompanied by an agreement by the parties to abide by an extended status quo period (usually until thirty days 3T he N M B h as inform ed us that E m ergency B oard No. 209 subm itted its rep o rt four d a y s late w ith o u t o b ta in in g the c o n se n t o f the parties. We are not aw are, how ever, w hether the E m ergency B oard o b ­ ta ined a fo rm al p resid en tial ex ten sio n , o r sim ply subm itted its rep o rt ju s t a few days late. 4 In th is reg ard , w e note that the legislative history places con sid erable em phasis on th e fact th a t an E m ergen cy B oard is a presidential board. See, e.g.. S ta ff o f Subcom m . on Labor, S en a te C om m , on L ab o r an d Pub. W elfare, 93d C ong., 2d Sess., Legislative History o f the Railway Labor Act, As Am ended 2 94 (C om m . P rin t 1974) (reprinting congressional debates) (statem ent o f R ep. N ew ton) (stating th a t p arties w ould c o o p erate w ith an E m ergency B oard because "[n ]eith er party w ould defy the P resid en t o f the U n ited S tates” ); id. at 229 (statem ent o f R ep. C ooper) (E m ergency B oard is backed by “the p o w e r a n d prestig e o f the P resident"). ’ T he N M B h as in d icated that E m ergency B oard N o 209 su b m itted its rep o rt four days la te w ith o u t any a g re em en t by th e p arties to abide by an extension. See note 3 supra. 61 after the late report is submitted). The Department of Labor has informed us that the total number of such extensions since the enactment of the RLA is more than seventy. The Labor Department also reports that, up to the present time, no party has ever reneged on a side agreement to forbear from self-help. O f course, as noted below, this perfect track record means that the legally binding character of these extensions has never been subject to liti­ gation. 1. Legality o f an extension granted with p arties' consent We believe that, despite our earlier conclusions concerning unilateral ex­ tensions, several arguments can be made that an extension granted with the consent of the parties would not violate section 10 of the RLA. First, and most importantly, the granting of extensions when the parties have agreed to extend the status quo period is supported by a long and consistent adminis­ trative practice under the Act. This practice would presumably be entitled to considerable weight in the construction of the statute. See, e.g.. Chevron, U.S.A., Inc. v. N atural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984) (noting that the Court has “long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer”); see also North Haven Bd. o f Educ. v. Bell, 456 U.S. 512, 535 (1982) (“Where ‘an agency’s statutory construction has been fully brought to the attention of the public and the Congress, and the latter has not sought to alter that interpretation although it has amended the statute in other respects, then presumably the legislative intent has been correctly discerned.’”) (quoting United States v. Rutherford, 442 U.S. 544, 554 n.10 (1979)).6 Indeed, this office, in an earlier opinion approving the use o f extensions with the consent of the parties, placed considerable weight on this past practice, noting that “this is a point upon which ‘a page of history is worth a volume o f logic.’” M emorandum for Laurence H. Silberman, Deputy Attorney General, from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: President's Power to Extent [sic ] in which Emergency B oard Under Railway Labor Act M ust Submit its R eport at 2 (June 19, 1974) (quoting New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)). Second, we note that the existence o f an enforceable7 side-agreement between the parties extending the status quo period would have the effect of removing all consequences of late submission of the report. By binding the parties to refrain from the use o f self-help until after a specified period, the side agreement renders the running of the statutory clock irrelevant. There ‘ G iv e n th e freq u e n c y o f th e practice, a n d C o n g ress’ o c casio n al statu to ry intervention into the resolud o n o f p a rtic u la r d isp u te s, it cannot serio u sly be d o ubted th at C ongress has been fully aw are o f the use o f e x te n sio n s. We are not aw are of any co n g ressio n al atte m p ts to lim it such practices. 7W e d is c u s s th e issu e o f enforceability b elow . See infra pp. 63-66. 62 would thus be no consequences to a failure to meet the section 10 deadline, and, in these circumstances, it might fairly be said that the import of the thirty-day deadline was merely “directory” rather than “mandatory.” See Thomas , 729 F.2d at 1470 n.5 (statutory time period is not mandatory unless it expressly requires action within a particular time period an d specifies consequences for a failure to comply). In short, when failure to comply with the deadline is completely without practical effect, there is no reason why the deadline may not, in those circumstances, be treated as directory. Finally, we note that nothing in the legislative history is inconsistent with these conclusions. The legislative history discussed above indicates that the drafters were concerned with the delays that might be caused by unilateral presidential or board action. See supra pp. 59-60 ; see also House Hearings at 100 (statement of Mr. Richberg) (stating that indefinite extensions for an Emergency Board’s report were undesirable because “there is always a great interest on the part of one person to have delay and on the part o f the other person not to have delay.”) By contrast, where the parties have themselves agreed to extend the status quo period, the drafters’ concerns are fully satis­ fied. Indeed, permitting an extension in such circumstances would be consistent with the RLA’s declared purposes of avoiding interruptions to commerce and of providing for the “prompt and orderly settlement” of dis­ putes between carriers and employees. 45 U.S.C. § 151a. Of course, given the President’s power to insist upon the report within the statutory time frame, see supra p. 61, the President may refuse to grant an extension despite the parties’ agreement to refrain from self-help and despite their request that he permit the extension. 2. Enforceability o f an agreem ent to refrain from self-help during extended Emergency Board proceedings We believe that the issue of whether any side agreement by the parties would be equitably enforceable under the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115 is a difficult one, give the lack of judicial authority on this question.8 We believe that there is no more than an even chance that a court would enforce such an agreement given the consistent past practice, over a long period of time, of using these agreements to facilitate the RLA dispute settlement processes. Nevertheless, a significant argument can be made that these agreements are, strictly speaking, outside the process mandated by the RLA, and there is thus a substantial litigation risk that they would be de­ clared to be equitably unenforceable. Among other things, section 4 of the Norris-LaGuardia Act, 29 U.S.C. § 104, provides: No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in ! In th is regard, w e note that the Labor D epartm ent has advised us that the enfo rceab ility o f s u c h side a g re em en ts has n e v er been subject to litigation. 63 any case involving or growing out o f any labor dispute to pro­ hibit any person or persons participating or interested in such dispute . . . from . . . [cjeasing or refusing to perform any work or to remain in any relation of employment . . . . The Supreme Court has held that, despite the broad reach of this language, the Norris-LaGuardia Act “does not deprive the federal court[s] of jurisdic­ tion to enjoin compliance with various mandates of the Railway Labor Act.” Burlington N.R.R. v. Brotherhood o f Maintenance o f Way Employees, 481 U.S. 429, 445 (1987) (quoting International A ss’n o f Machinists v. Street, 367 U.S. 740, 772-73 (1961)). The Court emphasized, however, that “[t]his exception is necessarily a limited one,” and that, even when a party seeking injunctive relief is able to show a violation of a duty imposed by the RLA, “[c]ourts should hesitate to fix upon the injunctive remedy . . . unless that remedy alone can effectively guard the plaintiff’s right.” Id. at 446 (quoting International A s s ’n o f Machinists, 367 U.S. at 773). The key issue is whether a breach of the side agreement would violate any o f the “various mandates of the Railway Labor Act.” We believe that a persuasive argument can be made that any breach of the side agreement would violate section 2 First of the RLA, 45 U.S.C. § 152 First, which provides: It shall be the duty o f all carriers, their officers, agents, and employees to exert every reasonable effort to make and main­ tain agreements concerning rates o f pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce . . . . In C hicago & N.W. Ry. v. United Transp. Union, 402 U.S. 570 (1971), the Suprem e C ourt held that, notwithstanding the provisions of the NorrisLaGuardia Act, a federal court has jurisdiction in appropriate circumstances to enjoin a strike, even during the self-help period, where the union has failed to satisfy its section 2 First obligation to use every reasonable effort to settle the dispute. The precise scope of this duty, and of the exception to the anti-injunction provisions of the Norris-LaGuardia Act that it creates, is difficult to discern. In Trans I n t’l Airlines, Inc. v. International Bhd. o f Teamsters, 650 F.2d 949, 962 (9th Cir. 1980), cert, denied, 449 U.S. 1110 (1981), the court held, per Judge (now Justice) Kennedy, that a breach of a contractual promise not to strike during the self-help period was an enjoinable violation of the section 2 First duty only if there is a substantial relationship between the breach and 64 the RLA dispute resolution procedures: “Absent a substantial nexus with statutory dispute settlement mechanisms or an agreement to arbitrate, an injunction may not issue to prevent a plain breach of a no-strike clause by a union.” Applying this standard, the court concluded that the contract at issue, which flatly prohibited strikes against certain flights, was not equita­ bly enforceable. The contract regulated conduct during the self-help period, when the parties had fully exhausted the RLA dispute resolution procedures, and therefore the “RLA plan for avoiding disruption [was] not threatened by the . . . strike.” Id. at 963. Chicago & N.W. Ry. was distinguished on the grounds that, in that case, “the union had failed to use reasonable efforts to comply with the mandatory disputes settlement mechanisms that lie at the heart of the Act,” and that the injunction in that case therefore protected the “integrity” of the RLA processes. Trans In t’l Airlines, 650 F.2d at 963. We believe that the best argument for enforcing such side agreements is that they have a “substantial nexus with [the] statutory dispute settlement mechanismf].” Id. at 962. Given the long-established practice of entering into side agreements to facilitate the production of the statutorily required reports by the Emergency Board, we believe that these agreements are argu­ ably part of the dispute resolution process. At a minimum, it would appear that they indeed have a “substantial nexus” to that process.9 There is, however, a potential counterargument. As our earlier discussion shows, these side agreements regulate conduct that is, strictly speaking, out­ side the statutory status quo period. Accordingly, their “nexus” to the statutory scheme might be questioned, especially if a court were to read Trans Int'l A irlines as broadly prohibiting any injunctions once the strict statutory dead­ lines had passed. It might also be argued in support of enforcing the agreement that a strike called before the expiration of the extended period specified in the side agreement is a violation of the status quo provisions of section 10.10 We believe, however, that this argument is untenable in light of our earlier con­ clusion that late submission of the report will not toll the running of the statutory status quo period. Indeed, the possibility of an extension being granted at all hinges upon the parties’ willingness, by private contract, to ’ Indeed , it m ight also be argued that the u n io n ’s c o n d u ct in agreeing to an extension o f the statu s q uo p e rio d , w ith its con seq u en t effects in altering the norm al R LA process, is a breach o f the section 2 F irst d u ty w here, as is likely to be the case, the union intended all along to abide only by the strict statu to ry de fin itio n o f the status quo period. Such a case w ould clo sely resem ble Chicago & N.W. Ry., w hich au th o riz e d an ap p ro p riate injunction, during the self-help period, w here the union failed to use re a so n ­ ab le efforts to settle the d isp u te d u rin g the RLA d isp u te settlem en t pro ced u res. In d eed , a u n io n 's a ctio n s in cau sin g the delay o f the subm ission o f the rep o rt, w ith the intent to take full ad v an tag e o f the stric t statutory d ead lin e, w ould arguably “ threaten" the “ RLA plan for a voiding d isru p tio n ," an d an ap p ro p ria te injunction against the ensuing strike w ould “p ro tect" the “ integrity o f these m e c h an ism s.” Trans In t'l Airlines, 650 F.2d at 963. T he availability o f this argum ent, how ever, w ould a p p ea r to turn on the u n io n ’s in ten t at the tim e o f entering into the side agreem ent. l0It is c le a r th at a federal c o u rt has ju risd ic tio n to en fo rce co m p lian ce w ith the status q u o p ro v isio n s o f sec tio n 10. See, e.g.. Pan American World Airways, Inc. v. Flight E ng'rs' In t’l A s s ’n, 3 06 F.2d 840, 846 (2 d Cir. 1962). 65 extend the status quo period beyond that specified in the statute." Accord­ ingly, we conclude that, although a union might violate the side agreement by calling a strike outside the sixty-day statutory period, it does not thereby violate section 10.12 Lastly, it might be argued that, to the extent that there is any ambiguity in the side agreement concerning the extent of the restrictions on self-help, the necessary interpretation of the agreement raises a “minor” dispute that must be resolved under the compulsory arbitration provisions of the RLA, see 45 U.S.C. § 153. The Supreme Court has held that, pending the resolution of these minor dispute resolution procedures, the parties have an equitably en­ forceable obligation to refrain from self-help. See Brotherhood o f R.R. Trainmen v. Chicago River & I.R.R., 353 U.S. 30 (1957). This argument may be unavailing for two reasons. First, if Trans Int’l Airlines is correct in holding that agreements to regulate conduct during the self-help period are not equitably enforceable, it is unclear how there can be any need for arbi­ tration to determine to what extent the side agreement limits self-help; the agreem ent will be equitably unenforceable regardless of the extent of its restrictions.13 Second, the availability of this argument hinges on the precise wording of the restrictions in the side agreement drafted by the parties, a factor that is not within the control of the executive branch. If the restric­ tions are clearly worded, no minor dispute can arise, and no equitable relief will be available under this theory. C. Presidential p o w er to reconvene emergency boards We do not believe that the President possesses power to impose a second status quo period by convening a second Emergency Board or by reconven­ ing the original board. Neither the text nor the legislative history of the RLA provide any support for such a power. Indeed, the legislative history’s emphasis on the need for a prompt resolution of the board’s activities, within a fixed period of time, affirmatively undercuts the notion that the President may extend the status quo period simply by reconvening or reappointing the board. Nor do we believe that past practice under the Act provides any support for such a power. The NMB has informed us that there appears to have been " M o re o v e r , b e ca u se the possibility o f an ex ten sio n d e p en d s upon the p a rtie s’ p rivate co n tract, there is a rg u a b ly n o reaso n w h y the parties m ay not agree to ex te n d the status quo period until ten o r tw enty (ra th e r th a n th irty ) d a y s a fte r the E m erg en cy B o a rd ’s late su b m ission o f the report. It w ould be d ifficu lt to a rg u e th a t such an “ ex ten sio n plus te n d ay s” period is eq u iv alen t, fo r purposes o f the R LA and the N o rris-L a G u a rd ia A ct, to th e statutory p e rio d described in section 10. I! W e re a ch th is c o n clu sio n despite th e fa c t that the statu te states th at the co o lin g -o ff period com prises th e “ th irty d a y s a fte r su ch board has m a d e its rep o rt to the P resid e n t." As discussed above, the w ording o f th is s e c tio n w a s b a se d o n the d ra fte rs ’ assu m p tio n th a t the thirty-day d e ad lin e w ou ld be stric tly c o m p lie d w ith . 13 It m ig h t be arg ued , how ever, that in te rp reta tio n o f the ag reem ent w ould still be necessary in o rd e r to d e te rm in e th e e x te n t o f entitlem ent to o th e r form s o f relief, such as dam ages. 66 only two such reconventions in the last forty-one years.14 The information that we have been given concerning such reconvention indicates the fairly narrow circumstances under which boards have been reconvened. Thus, both of the two boards that were reconvened between 1950 and 1987 were reconvened only after the parties had requested this action and only for the purpose of clarifying an ambiguous point in the board’s original report. See Letter from H. Witt, Member, NMB to the President (Sept. 8, 1986) (recon­ vening of Emergency Board No. 211); Letter from Emergency Board No. 187 to the President (Nov. 26, 1975) (report of reconvened board). These very limited precedents provide no support for the view that the President may impose a new status quo period by reconvening an Emergency Board over the objections of the parties or to deal with completely different issues.15 CONCLUSION We conclude that the President may grant an extension for filing a report by an Emergency Board appointed under section 10 of the Railway Labor Act only if the parties consent to the extension by making a side agreement that extends the status quo period. As a practical matter, the effectiveness o f any such extension of the status quo period depends upon the equitable enforceability of the side agreement, a matter concerning which there is substantial doubt. Furthermore, although the President may not unilaterally extend the thirty day deadline for filing a report, he may shorten it. Finally, any subsequent boards appointed by the President (whether by reconvening an Emergency Board or appointing a new one) cannot bind the parties to status quo without their consent. JOHN O. McGINNIS Deputy Assistant Attorney General Office o f Legal Counsel u T he NM B has stated that there m ay have been as m any as fo u r reconventions in the first tw e n ty -fo u r years, but it does not as yet have in fo rm atio n on the circu m stan ces o f the reconventions. 15O f co u rse, the P resid en t m ay ch o o se to c onsult w ith the m em bers o f the form er b o a rd ab o u t any issu e relatin g to th e dispute, but this w o u ld not be an action taken u n d er the R L A , and it w o u ld not h a v e the effe c t o f im posing a new status q u o period. 67

Write a legal research memo on the following topic.

Use of the Disaster Relief Act of 1974 in an “Immigration Emergency” T he D isaster R elief A ct authorizes the provision o f federal aid to state and local governm ents in the event o f an em ergency or major disaster, w hether resulting from natural o r m an-m ade causes. W h eth er a p articu lar “ immigration em ergency” so threatens property or hum an life as to fall w ithin the scope o f the A ct is a m atter for the President in his discretion to determ ine. November 19, 1982 MEMORANDUM OPINION FOR THE ASSOCIATE ATTORNEY GENERAL This responds to your inquiry whether it would be appropriate for the President to use the Disaster Relief Act, 42 U.S.C. §§ 5121—5202 (1982) (Act), in a situation comparable to the recent Cuban boatlift or other similar “immigration emergency.” The legal question raised is whether such an “immigration emer­ gency” would constitute either an emergency' or a major disaster2 under the Act. We have concluded that the Act covers emergencies arising from both man-made and natural disasters. We have also concluded that whether a particular situa­ tion— such as an “immigration emergency”— falls within the scope of the Act is a matter for the President to determine— a determination that has been placed wholly within the President’s discretion. 42 U.S.C. § 5122(2). We believe that the Act was meant to encompass catastrophic events—either impending or actual— that threaten property and the lives of people. In the absence of specific facts, we are unable to say with certainty whether a particular “immigration emergency” would constitute such a catastrophic event. Similarly, we are unable 1 The Act defines an emergency as any hurricane, tornado, storm, flood, high water, w ind-dnven water, tidal wave, tsunam i, earth­ quake, volcanic eruption, landslide, mudslide, snowstorm, drought, fire, explosion, or other catastrophe in any part o f the United Slates which requires Federal emergency assistance to supplem ent State and local efforts to save lives and protect property, public health and safety or to avert or lessen the threat of a disaster 42 U S.C § 5122(1) (1982) 2 A "m ajor disaster” is any of the events listed in the definition of “emergency," supra, n 1, which, in the determination of the President, causes damage of sufficient seventy and magnitude to warrant major disaster assistance under this chapter, above and beyond emergency services by the Federal G overnment, to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the dam age, loss, hardship, or suffering caused thereby. 42 U .S .C . § 5122(2) (1982) 708 to say that the Act could never apply. Rather, we will outline what we believe to be the touchstones of an emergency under the Act. I. The Disaster Relief Act The Act is the most recent version of legislation that was first enacted in 1950. Disaster Relief Act of 1950, Pub. L. No. 81-875, 64 Stat. 1109 (1950). A major disaster was originally defined by a somewhat shorter list,3 but the central purpose— to create a coherent framework for dealing with the unexpected— was, from the beginning, expressed clearly: The purpose of the bill is to provide for an orderly and continuing method of rendering assistance to the States and local govern­ ments in alleviating suffering and damage resulting from a major peacetime disaster and in restoring public facilities and in supple­ menting whatever aid the States or local governments can render themselves. S. Rep. No. 2571, 81st Cong., 2d Sess. 1 (1950).4 The 1950 legislation was intended to create permanent legislation to deal with what had, to that point, been covered in an ad hoc, haphazard manner:5 For obvious reasons, it is not possible for the committee to approve legislation in each disaster in any particular area. Our committee would be overworked with legislation of that kind. The legislation that is before us today is the kind that will meet all emergencies of a disaster, and gives the President the necessary authority for not only providing the relief but for coordinating the relief. 96 Cong. Rec. 11902 (1950). The Act was drafted by Members of Congress who were willing to exchange the careful congressional evaluation of each event that had heretofore been involved for the quicker response that an emergency situa­ tion usually calls for, a response that the Executive, acting alone, can provide. From the beginning, Congress realized that the Act, because of this calculus, placed broad discretionary power in the hands of the President. Statements from 3 The list of covered events included “ floods, drought, fire, hurricane, earthquake, storm or other catastrophe.” 42 U S C § 1855a(a) (1952). 4 See also H.R Rep No 2727, 81st Cong., 2d Sess. 2 (1950), 96 Cong Rec. 11895-96, 11907 (1950). 5 Rep Hagen inserted a list of 128 acts passed by Congress since 1803 to cover various disasters. % Cong. Rec 11900-02 (1950). It is nol evident that this list was necessarily intended to identify the kinds of disasters the 1950 legislation was intended to cover. It is interesting to note that although Rep. Hagen referred to it as covenng “sufferers from floods, fires, earthquakes and other natural disasters,” 96 Cong Rec. 11899 (1950), the list in fact included statutes that covered man-made disasters, food for Florida residents driven from their homes by Indian depredations, 5 Stat. 131 (1836); monetary relief for survivors of an Indian massacre. 12 Stat 652 (1863); relief from import duties for charitable contributions sent to blacks “who may have emigrated from their homes to other States,” 21 Stat. 66(1880); money for the relief of destitute American citizens in Cuba, 30 Stat. 220(1897); money for losses suffered by the crew of the If S.S Maine when it exploded, 30 Slat 346 (1898), and supplies for the relief of destitute Cubans who were suffering from the disruptions of war, 30 Slat. 419 (1898) Id. at 1069 (1899). 709 the 1950 debate reflect this recognition, including the awareness that, as with any grant of discretionary authority, there was a danger of abuse. When it comes to providing for human suffering, to provide for the protection of human life, we must give some discretion. I will risk the President of the United States and the governors of the States. 96 Cong. Rec. 11898 (1950) (statement of Rep. Whittington).6 The debate continued: MR. KEATING: [I]t seems to me that the essential difference between the way we have been handling this and the way it is proposed to handle it under . . . this measure is that heretofore Congress has passed upon the need for the funds, but under this it is left entirely to the Executive to say whether the disaster threatens to be of sufficient severity and magnitude to warrant disaster assistance by the Federal Government. MR. WHITTINGTON: . . . That is exactly what we had done. 96 Cong. Rec. 11910 (1950). MR. ROBERTSON: Is it the Senator’s interpretation that the bill would apply to whatever disaster the Presi­ dent might be pleased to have it apply? MR. McCLELLAN: That is correct. . . . However, I think we certainly can rely upon whoever may be President of the United States having some judgment, and also having some humanitarian feelings and applying such feelings in making a decision as to what is a major disaster, where people have suffered or are about to suffer, and where the Federal Government should step in and assist. 96 Cong. Rec. 15096, 15097 (1950). We have not found anything in the subsequent amendments to this legislation indicating a desire to limit this discretion. II. Natural and Man-made Disasters There has been some confusion over the years as to whether the phrase “or other catastrophe” includes events other than those usually thought of as 6 Rep W hittington was Chairman of the H ouse Committee on Public Works, which had drafted the bill 710 “ natural,” i.e., hurricanes, earthquakes, and tornadoes.7 We believe that the Federal Emergency Management Agency (FEMA) and its predecessors have administered the Act to cover man-made as well as natural events. Given the many years of congressional acquiescence in this administration of the Act, this administrative interpretation would normally, without more, be regarded as authoritative and correct. When the 1950 legislation was being debated, most references were to what are generally considered “natural” disasters. But reference was made to a nuclear disaster. Referring to the $5,000,000 appropriation made under the bill, Rep. Keating said: [A]s the gentleman from Wisconsin said, $5,000,000 is just a starter. If a major disaster struck this Nation, such as an atomic explosion or something of that kind, the Congress of the United States would be the first on the spot to alleviate any suffering in such a situation as that. 96 Cong. Rec. 11911 (1950). It is true that when the Act was under consideration in 1974, its sponsors referred to the “natural” hazards that will be covered.8 But there was also reference, albeit ambiguous, to the definition as covering “any one of a number of natural hazards or other catastrophes causing damage that requires emergency assistance.” 120 Cong. Rec. 4169 (1974) (statement of Sen. Burdick, floor manager) (emphasis added). Extensive hearings were held,9 but they were held in towns that had suffered from the most recent disasters— Hurricanes Camille and Agnes, and the Rapid City, South Dakota flood— all of which happened to be natural, and the testimony received focused on the aid needed, not on the disasters’ causes.10 In order to clarify whether the Act can properly be used to cover man-made disasters, an issue that is apparently now disputed by FEM A,11we have examined the administrative practice under the Act and its predecessors. It is apparent from the list provided to us by FEMA of all the emergencies that have been covered since May 1, 1953, by the Act or its predecessors, that man-made disasters have been covered for as long as there has been specific disaster legislation. A survey of the list shows that the President has declared a disaster to cover the presence of 7 This Office once examined the issue in terms o f “natural” versus man-made disasters and concluded that the damage caused by the riots of the late 1960s was not covered by the Act. Memorandum for David Ginsberg, Executive Director, National Advisory Commission on Civil Disorders, from Warren Christopher, Deputy Attorney General, Nov. 22, 1967. Our files contain an unsigned memorandum, however, dated Aug. 16, 1965, that am ves at the opposite conclusion. s See, e g , 120 Cong Rec. 4162, 4165, 4166 (1974) (statement of Sen. Burdick) 9 To Investigate the Adequacy and Effectiveness c f Federal Disaster Relief Legislation. Hearings Before the Subcomm. on Disaster Relief c f the Senate Comm on Public Works, Pts 1-6, 93rd Cong , 1st and 2d Sess. (1973-1974) 10 The same is tme o f the hearings held in 1950. See Disaster R elief Hearing on S. 2415 Before the Subcomm. c f the Senate Comm on Public Works, 81st Cong., 2d Sess (1950), and infra, n 23 11 Compare Letter to Ms Renee L Szybala, Special Assistant to the Associate Attorney G eneral, from George W Jett, General Counsel, FEMA, Aug. 2, 1982, with Memorandum for Robert Bedell, Office of Management and Budget, from George W. Jett, General Counsel, FEMA, May 3, 1980. 711 a sunken barge in the Mississippi River because of its cargo of 2,200,000 pounds of liquid chlorine;12a massive power failure in Alaska;13the presence of chemical wastes in the soil underlying a residential area;14 explosions in the sewer system of Louisville, Kentucky because of illegal chemical dumping;15 dam collapses due solely to engineering failures;16 fires due to arson;17 and the sudden influx of approximately 250,000 illegal aliens from Cuba. 16 Weekly Comp. 868 (1980). There is no indication in the legislative history of the Act or any of its predeces­ sors that Congress intended the President to distinguish between floods caused by rivers swollen by melting snow, floods caused by the collapse of dams eroded by heavy rains, see 9 Weekly Comp. 657 (1973), and floods caused by the collapse of mechanically flawed dams, see note 16 supra. Nor is there any indication that the Executive was to spend valuable time distinguishing—-if it were possible— between, for example, brush fires started by arsonists and those started by lightning. Rather, revisions to the Act have focused on improving the delivery of aid, and increasing the kinds that are available. Unless we are willing to read “naturally occurring” into the statute as a modifier to “fire” and “ explosion,” we cannot read it in to modify “catastrophe.” We would note that the Act has been amended five times since 1950,18 and that each time the President and his aides have been criticized for various delays in providing aid. Each time there have been calls for more, not less, aid, and quicker response tim es.19 We have not been able to find suggestions that the President delay the delivery of aid while the exact cause of the disaster is unearthed. The whole point of the Act is to provide assistance to those in need as soon as possible and to leave the careful sifting o f cause and effect by time-consuming investiga­ tions to the future.20 12 The emergency was declared on October 6 , 1962 U nitedStates v Cargill, 367 F.2d 971 (5th Cir 1966), o ff d sub nom. Wyandotte Transportation Co v U nited States, 389 U S. 191 (1967). The United States successfully raised the barge and sued lo recover the $3,081,000 cost, much of which was for measures taken to alert the public lo potential risks and to protect them in case the chlorine tanks ruptured See also N Y. Times, O ctober 11,1962, at 24, col. 2, id., November 6, 1962 at 12, col. 5. 13 10 Weekly Comp. 1149(1974) The federal government provided supplementary generators until power could be restored 14 16 Weekly Comp 967 (1980) (Love Canal). 15 17 Weekly Comp. 333 (1981) The explosions were later found to be the responsibility of a company whose soybean mill leaked a highly explosive industrial solvent into the sewers. 16 12 Weekly Comp 1036-37, 1049 (1976) (Grand Teton Dam). 17 17 Weekly Comp 1351 (1981) (Massachusetts fire set by arsonist that caused $40 million in damage); 16 Weekly Comp. 2780 (1980) (California brush fire started by illegal campfire that caused $25 million in damage) 18 Although the law w asam ended in 1962 to cover the ternlories, Pub L No 87-502, 76Stat 111 (1962), and m 1966, Pub. L. No 89-769, 80Stat 1316(1966), and 1969, Pub. L. No. 9 1 -7 9 , 83 Stat. 125 (1969), to increase the kinds of assistance available, it was nol until 1970 that it was comprehensively amended. Pub L. No. 91-606, 84 Stat. 1744 (1970) The 1970 law reenacted th e major provisions of the earlier laws, consolidating in one statute provisions that had been scattered throughout the Code, and added several new forms of aid. See 116 Cong. Rec. 31045 (1970) (statement of Sen. Bayh),S Rep 1157,91st C ong., 2d Sess (1970).Thedefim tionofm ajordisaster was specifically retained, see H.R Rep No. 1752, 91st Cong , 2d Sess 18 (1970); S. Rep No 1157, 91st Cong , 2d Sess 25(1970), except for certain specific additions to the list: tornadoes, high water, wind-driven water and tidal waves. 42 U .S .C . § 4401 (1970) The 1974 A ct, which contains the most recent amendments, had as its central purpose the same kind of consolidation and expansion. See H .R Rep No. 1037, 93rd Cong., 2d Sess (1974); S. Rep No 1778, 93rd C ong., 2d Sess (1974). 19 See, e.g . 116 Cong Rec. 34795 (1970) (statement of Rep. Clausen) (“ It is our intent to equip ihe executive branch, which we believe is now hampered, w ith the kind of authority to move in the direction of a definite action program to give immediate relief to the people who need it at the most possibly important lime in their life ”) 20 Indeed, in some cases the cause will never be known, i.e., experts may suspect that a fire was arson but find it impossible to prove. 712 Given this prior administrative practice, the breadth of the President’s discre­ tion as perceived by Congress, and the fact that Congress could have limited the statute to natural disasters,21 we believe that the Act covers man-made as well as natural disasters. III. Immigration Emergencies FEMA has taken the position that use of the Act for an immigration emergency is inappropriate for three reasons. While we do not, as indicated below, find any of these reasons persuasive, obviously the Act will not be available for every immigration emergency. Rather, we believe that the President may use the Act in any emergency, including an immigration emergency, if he finds that the damage, loss, hardship, or suffering is of the kind encompassed by the Act. As a guide, we detail below some of the indicia which may be relevant in determining when a crisis is an emergency covered by the Act. FEMA advances three reasons why the Act is not available for immigration emergencies. First, as an indication of Congress’ concern with the Act’s use for man-made emergencies, it points to S. 2250, a bill which passed the Senate in June and has now been referred to the House Public Works Committee. S. 2250 would change the last phrase in 42 U.S.C. § 5122(2) to “or other natural catastrophe.” S. 2250, § 5(1), 97th Cong., 2d Sess. (1982) (emphasis added). The accompanying report recognizes that the Act has been used to cover non­ natural catastrophes. S. Rep. No. 459, 97th Cong., 2d Sess. 2 (1982), and that these uses have “provoked recent Congressional concern.” Id. We would note that this amendment would only limit the declaration of a “major disaster,” 42 U.S.C. § 5122(2), not the more limited declaration of an “emergency.” Id. § 5122(1). This proposed amendment is of minimal use in interpreting the statute as presently enacted. Congressional critics may take issue with particular non­ natural emergencies the President has chosen to cover, but the Senate report itself recognizes the long history of the President’s reliance on the Act to respond to non-natural emergencies. This would seem to undercut any argument that only natural emergencies may be covered. In fact, S. 2250’s retention of a definition of “emergency” that is not limited to “natural” events would seem to indicate a continued desire that some federal aid rem ain available for m an-m ade emergencies. Second, FEMA indicates that Lee Thomas, Associate Director for State and Local Programs and Support, testified during his Senate confirmation hearings that he would only recommend coverage for an emergency if it were a natural disaster or one specifically mentioned in the Act. We have been asked a legal question about underlying authority to act, not the policy question about when FEMA will recommend that the President exercise his discretion to act. We defer 21 Compare Wise. Stat. § 49.19 (1 l)(b) (1975) (aid limited to “natural disaster”), discussed in Kozinski v. Schmidt, 436 F. Supp 201 (E.D . Wise. 1977). 713 to Mr. Thomas on the latter question, but it is one that has no relevance to our discussion of the legal issues. Finally, FEMA cites two cases decided by the district court in Puerto Rico which held that the Act was only intended to cover natural disasters. Colon v. Carter, 507 F. Supp. 1026, 1031-32 (D.P.R.), vacated on other grounds, 633 F.2d 964 (1 st Cir. 1980); Commonwealth c f Puerto Rico v. Muskie, 507 F. Supp. 1035, 1044-45 (D.P.R.), vacated on other grounds, 668F .2d611 (1st Cir. 1981). Even if both decisions had not been vacated by the First Circuit, with the court specifically noting that there was no need to reach the issue of whether the Act applied, Colon, supra, 633 F.2d at 966 n.3, we would remain unpersuaded. The district court assumed that all the events listed in the Act were “natural” disasters and did not consider that fires and explosions, for example, can be man-made. Nor did the district court address the longstanding administrative practice— a practice of which it may well have been unaware.22 We should note that in 1980, at the start of the Cuban boatlift, this Office was asked, on an expedited basis, to examine the Act’s applicability. No formal opinion was issued but, despite some doubts as to its availability for man-made disasters, we did not interpose any objection to the use of the Act. We relied in part on FEM A’s determination that the Act was available. See note 11, supra. We believe that whether a disaster is triggered by human or natural agents is legally irrelevant. The issue for the President is whether it has caused “damage of sufficient severity and magnitude” to warrant additional federal assistance to alleviate “the damage, loss, hardship or suffering caused thereby.” 42 U.S.C. § 5122(2). There is usually general agreement about what a disaster is— whether it comes in the form of a hurricane or as the imminent meltdown of a nuclear reactor—but in those cases in which there is some question, Congress has given the President guidance for determining the extent of his discretion. The most prominent of these is the request for aid by a state governor. “The basis which has always been applied is that the disaster must be of such major proportions that the governor of the State in which the disaster takes place feels that it is beyond the power of the State and of the local units of government to meet it adequately.” 96 Cong. Rec. 15097 (1950) (statement of Sen. Holland). This requirement ensures that the chief executive of the affected area believes there is a severe problem that state and local resources are inadequate to handle. The President can then consider whether the emergency calls for the kind of aid made available under the Act. If an event calls for one o r more of several forms of assistance, it seems likely that Congress intended the Act to cover it.23 The President should, 22 The district court states that the legislative history supports this interpretation but refers only to a House report issued during the 1966 amendments. Colon, supra, 507 F. Supp. at 1032. Since this Department appealed the district court's decision to the First Circuit, it is self-evident that neither this Department nor the Executive in any way acquiesced in the reading given the A ct by the district court. 23 M ajor disasters that may strike American communities can be of all kinds. No two disasters are alike in nature, scope of damage, or amounts of available State and local government resources. Consequently, the kind and amount o f Federal aid required wiU vary in each case. In one case the principal Federal assistance may be medical aid; in another case, temporary housing, in another case, evacuation transportation, and so forth. D isaster R elief' Hearings on H .R . 8396, H .R 8461, H .R . 8420. H .R . 8390, and H R. 8435 Before the House Comm, on Public Works, 81st Cong., 2d Sess. 7 8 -7 9 (1950) (statement of Elmer B. Staats, Assistant Director of the Bureau o f the Budget). 714 therefore, in deciding whether an event is an emergency or a major disaster, examine the following statutory factors: 1. The need for immediate centralized coordination of federal agency relief efforts;24 2. The need for a central federal officer to coordinate with private relief organizations;25 3. The need to take immediate steps to safeguard lives and property; to perform essential community services; or to distribute food and medicine;26 4. The need to provide emergency mass care, including shelter and the provision of food and other essential needs;27 5. The need to take immediate steps to clear roads, build bridges, demolish unsafe structures, or erect temporary ones;28 6. The need to warn the public about a risk;29 7. The need to give priority to certain locales for applications for public housing and for repair and construction of public facilities;30 8. The need to allocate, on a tem porary basis, materials necessary for construction;31 9. The need to take immediate steps to repair and restore certain nonprofit facilities, such as schools, hospitals, and utilities;32 10. The need to remove debris and wreckage;33 11. The need to take immediate steps to provide temporary rent-free housing or mortgage or rental payments;34 12. The need to provide extraordinary unemployment assistance, individual or family grants, and food stamps;35 13. The need to provide assistance to those in need of immediate psychiatric counseling;36 14. The need to set up emergency communications and transportation systems.37 It is obviously not possible, without specific facts, to opine on whether a particular set of facts constitutes an emergency or a major disaster. We have not found anything, either in the Act, its legislative history, or administrative practice under it, that would disqualify an emergency or major disaster merely because it involved a massive influx of aliens into the country. President Carter used the Act to declare an emergency during the Cuban boatlift, and the specifics of the damage being done to Florida at that time will no doubt aid others in evaluating 24 42 23 42 “ 42 27 42 28 42 29 42 30 42 31 42 32 42 33 42 34 42 35 42 36 42 37 42 U .S.C. U.S C. U SC U S.C U S.C. U .S.C U .S.C . U.S C. U.S C. U SC U SC U S.C. U S.C. U.S C. § 5142(a). § 5143(b)(3). § 5145 § 5146(a)(4) § 5146(a)(4) § 5146(a)(4). § 5153(a). § 5158. § 5172(b). § 5173. § 5174. §§ 5177, 5178. § 5183. §§ 5185, 5186 715 the merits of future requests. Not every immigration emergency will necessarily be an emergency or major disaster under the Act— the President must make separate determinations for each. We do not believe, however, that there is anything in the Act to preclude him from using the Act if he did determine that the requisite need and suffering existed. L a r r y L . S im m s Deputy Assistant Attorney General Office o f Legal Counsel 716

Write a legal research memo on the following topic.

October 3, 1979 79-74 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL Judges—Appointment—Age Factor Representative Pepper, Chairm an o f the House Select Committee on Aging, has expressed concern over the practice o f considering the age o f candidates for judicial appointm ent and excluding from consideration those who are older than age 60. This brief m em orandum discussed the legality o f that practice. The practice is lawful. The C onstitution gives the President the power to appoint Federal judges. A rt. II, § 2, cl. 2. In making these appointm ents, the President is constitutionally entitled to exercise his discretion and to follow policies that in his view will serve the interests o f the Nation. The practice o f considering the age o f judicial candidates reflects such a policy.* Representative Pepper suggests that this practice is inconsistent with the Age Discrimination in Em ployment Act o f 1967, as amended (the “ A ct” ). See 29 U .S.C . § 621 et seq. The Act provides, inter alia, that “ [a]ll person­ nel actions affecting * * * applicants for employment * * * in those units o f the * * * judicial [branch] o f the Federal Government having positions in the competitive service * * * shall be made free from any discrimination based on age.” 29 U .S.C . § 633a(a). W hatever this language means, it does not purport to bind the President in making appointm ents for judicial office. Candidates for judicial office are not “ applicants for em ploym ent” in the ordinary sense o f that phrase. Moreover, by limiting the applicability o f the statute to “ units o f the ‘ The practice is not barred by any o ther provisions o f the Constitution. It is doubtful that the President’s power to appoint persons to high Governm ent office is subject to any restraint such as those grounded in the First and Fifth Am endm ents, which may regulate in some respects the hiring and firing o f some kinds o f Governm ent employees. In any case, the practice o f considering a judicial candidate’s age abridges no such restraint. It presents no First A m endm ent question. It deprives no one o f liberty or property. It establishes an age classification that is fully as rational and defensible from a constitutional standpoint as age classifications that have been upheld in other contexts. C f, Massachusetts v. Murgia, A ll U.S. 307 (1976); Palmer v. Ticcione, 576 F. (2d) 459 (2d Cir. 1978). 388 * * * judicial [branch] * * * having positions in the competitive service,” Congress may have intended to exclude noncompetitive positions from the coverage o f the statute, at least with respect to the judicial branch. The operative language was added to the Act by Pub. L. No. 93-259, 88 Stat. 74. We have found nothing in the legislative history o f that amendment that would support or require a contrary conclusion. Representative Pepper suggests that the “ policy” o f the Act is violated nonetheless. With all due respect, that argument is o f doubtful merit. The Act does not apply to all appointm ents in the Federal Government; and it expresses on policy whatever, so far as we can determine, with respect to judicial appointm ents or candidates for judicial appointm ent. Indeed, if Congress had purported to bar the President from considering age in the selection o f judicial appointees, the Act would present a substantial consti­ tutional question. Congress has power to prescribe qualifications for office; but the power o f appointm ent belongs to the President, and it cannot be usurped or abridged by Congress. See, Buckley v. Valeo, 424 U.S. 1 (1976); cf., Springer v. Philippine Islands, 277 U.S. 189 (1928). There is no settled constitutional rule that determines how these two powers—the power of Congress to prescribe qualifications and the power o f the President to ap­ point—are to be reconciled,*but it seems clear that there must be some con­ stitutionally prescribed balance. The balance may shift depending on the nature o f the office in question. For example, Congress has required that the President appoint members o f both parties to certain kinds o f boards and commissions; there is serious question whether Congress could con­ stitutionally require the President to follow the same practice with respect to his Cabinet. The question o f age discrimination in the selection o f candidates for judicial office presents a similar problem. The power to appoint Federal judges, who hold office on good behavior, is by tradition and design one o f the most significant powers given by the Constitution to the President. It provides one o f the few administrative mechanisms through which the President can exert a long-term influence over the development and adm in­ istration o f law in the courts. The President’s present power to exert that in­ fluence to the fullest by preferring candidates for appointm ent who are like­ ly to have long, rather than short, careers on the bench is therefore a m atter o f constitutional significance. W hether Congress could deny the President that power by requiring him to disregard utterly the age o f candidates for appointm ent has never been considered by the courts, but because o f the gravity o f the constitutional questions it raises, we would be most reluctant to construe any statute as an attem pt to regulate the President’s choice in that way, absent a very clear indication in the Age Discrimination in Employment Act o f 1967. John M . Harmon Assistant A ttorney General Office o f Legal Counsel 389

Write a legal research memo on the following topic.

Scope of Treasury Department Purchase Rights with Respect to Financing Initiatives of the U.S. Postal Service If the Treasury Departm ent has declared its election to purchase a proposed U.S. Postal Service bond issue pursuant to 39 U.S.C. § 2006(a) prior to the proposed date of issuance and is pursuing goodfaith negotiations towards such purchase as o f such date, the USPS is not free to proceed with issuance o f the bonds to other purchasers solely because Treasury has not completed purchase of the bonds within a 15-day period following USPS’ initial notice of the proposed issue. If, in the above circumstances, Treasury and the USPS are unable to negotiate mutually agreeable terms for purchase by Treasury within a commercially reasonable period of time following USPS’ proposed date for the issuance o f its bonds, then the USPS may proceed with the issuance of such bonds to other purchasers. Treasury is not authorized to dictate or control the terms of the USPS offering, but it must be afforded a reasonable opportunity to reach mutually agreeable terms with the USPS when the original terms proposed by the USPS are unacceptable. That reasonable opportunity is not rigidly limited by the 15-day period for declaring an election to purchase. October 10, 1995 M e m o r a n d u m O pin io n f o r the V ic e P r e s id e n t and G en er a l Counsel U n i t e d S t a t e s P o s t a l S e r v ic e and T h e G en era l C oun sel De p a r t m e n t of the T reasury I. Background and Summary This memorandum responds to the U.S. Postal Service’s (“ USPS” ) request that this Office reconsider and rescind an opinion issued on January 19, 1993,1 in which we responded to the Department of the Treasury’s (“ Treasury” ) request for an opinion regarding the statutory relationship between the USPS and Treasury with respect to USPS financing initiatives. In the 1993 opinion, we concluded that (1) under 39 U.S.C. § 2006(a), Treasury’s failure to purchase a USPS bond issue prior to the scheduled date of sale on the market proposed by USPS does not relieve USPS of further obligation to negotiate with the Treasury towards agreeable terms of sale, or permit USPS to proceed with the market sale as origi­ nally scheduled, as long as Treasury has duly declared its “ election” to purchase and continues to negotiate in good faith towards the purchase; and (2) the transfer of the proceeds of a bond offering by the USPS to a trustee for the purpose of having the trustee employ those proceeds to make and use investments to dis1 Authority o f the Secretary o f the Treasury Regarding Postal Service Bond Offering, 17 Op. O.L.C. 6 (1993) (“ 1993 opinion” )- 238 Scope o f Treasury Department Purchase Rights with Respect to Financing Initiatives o f the U.S. Postal Service charge outstanding USPS debt would require the prior approval of the Treasury under the provisions of 39 U.S.C. § 2003. In response to arguments and representations made by USPS, and after giving written notice to Treasury, this Office has undertaken a reconsideration of its 1993 opinion.2 We now reaffirm the conclusions reached in that opinion, with the fol­ lowing clarification. We conclude that, although Treasury’s declared election to purchase a USPS offering may require USPS to negotiate with Treasury towards agreeable terms of sale even beyond the originally scheduled market offering date, USPS is not required to postpone the market sale indefinitely if Treasury has not purchased the offering after that date has passed. Rather, USPS is only obli­ gated to negotiate with Treasury in good faith for a commercially reasonable period o f time, under the circumstances presented by the proposed transaction, before proceeding with the sale. II. Analysis The original opinion addressed two distinct issues, and both were resolved in favor of the position advocated by Treasury. On the first issue, we conclude that this Office was correct in opining that, under 39 U.S.C. § 2003(c)-(d), Treasury’s approval was required as a precondition to USPS placing the proceeds of its proposed bond offering with a trustee who would invest the proceeds in securities and use the investment return to discharge outstanding USPS debt. We find no basis for changing or revising the original opinion’s analysis of this issue, and we hereby readopt and reaffirm that analysis. However, there appears to be some basis for clarifying one particular aspect of that portion of the opinion interpreting Treasury’s purchase rights under 39 U.S.C. § 2006(a). Specifically, our 1993 opinion suggested that the negotiations that could be invoked by Treasury’s “ election” to purchase the USPS bond offering were not subject to any time limitation, even when Treasury has not effected a purchase of the offering by the date originally scheduled by USPS for sale on the market. We now conclude that if such negotiations are conducted in good faith by USPS, yet are not concluded within a commercially reasonable period of time following the initially proposed offering date, USPS may proceed with the proposed offering notwithstanding Treasury’s unconsummated election to purchase. 2 Our reconsideration o f the original opinion in this matter was initiated by a request from the USPS. The request was originally set forth in a letter dated May 4, 1993, from Mary S. Elcano, Vice President and General Counsel o f the U.S. Postal Service, to Daniel Koffsky, Acting Assistant Attorney General, Office of Legal Counsel. By letter dated March 17, 1995, the USPS has consented to be bound by the final opinion to be issued by this Office in this matter. On the basis o f that consent, we are proceeding with our reconsideration o f the 1993 opinion. 239 Opinions o f the Office o f Legal Counsel in Volume 19 A . Treasury Restraints on USPS Authority to Invest or Deposit Funds The first and easier issue concerns the restraints on the authority of USPS to invest or deposit moneys of the Postal Service Fund (“ Fund” ) set forth in 39 U.S.C. §2003. Section 2003(c) provides that if USPS determines there are Fund moneys “ in excess of current needs,” such funds may be invested in Government securities by and through the Secretary of the Treasury and, subject to the Sec­ retary’s prior approval, such excess funds may also be invested in non-Govemment securities. Section 2003(d) separately provides that the Secretary of the Treasury must pre-approve any “ deposits” of Fund moneys in a Federal Reserve bank, a depository for public funds, or in “ such other places” as the USPS and the Secretary “ may mutually agree.” USPS proposed to place the proceeds of its bond refinancing with a trustee, who would then invest the funds in government securities (it is not disputed that the refinancing proceeds would constitute part of the Fund). The trustee would then use the principal and interest of those government securities to redeem approximately $2.6 billion in outstanding USPS debt (i.e., the debt being refinanced). Treasury contended that USPS could not place the bond proceeds with the trustee without Treasury’s prior approval — which apparently would not be forthcoming— under the above-quoted provisions of 39 U.S.C. §2003. USPS contends that neither § 2003(c) nor (d) applied to this proposed “ in substance defeasance,” on the theory that the investments made under the trustee arrange­ ment would not constitute true investments because they were only an alternative mechanism for the repayment of debt; and on the further theory that placement of the funds with the trustee did not constitute a “ deposit” within the meaning of 39 U.S.C. § 2003(d). USPS’ renewed argument that the statutory requirement for Treasury’s handling or approval of Fund investments is inapplicable to these arrangements is unpersuasive and is adequately addressed in the original OLC opinion. The trustee’s investment of the Fund moneys in government securities is clearly an investment for purposes of §2003(c)’s restrictions, notwithstanding the participa­ tion of the trustee as an intermediary. See Postal Reorganization Act— Investment o f Excess Funds o f the Postal Service, 43 Op. Att’y Gen. 45, 47 (1977).3 This investment arrangement is therefore subject to the requirements of 39 U.S.C. § 2003(c). The additional argument that the initial “ placement” of funds with a trustee is not a “ deposit” within the meaning of § 2003(d), and therefore not subject to approval by Treasury, is also unconvincing. In this regard, we reject the USPS 3 In his 1977 opinion construing the investment and deposit restrictions o f 39 U.S.C. §2003, the Attorney General em phasized that “ the limitations in §2003 are limitations on any general powers [of the USPS] insofar as they apply to the Fund.” 43 Op. A tt’y Gen. at 47. He further stated that “ the authority to purchase Government Obliga­ tions, carefully described and carefully circum scribed in § 2003(c), is to the exclusion o f any other authority in this regard.” Id. 240 Scope o f Treasury Department Purchase Rights with Respect to Financing Initiatives o f the U.S. Postal Service contention that the placement of funds with the trustee was not a deposit within the meaning of that section because the funds were not subject to free withdrawal by USPS as depositor. There is nothing in § 2003(d) that requires or indicates such a narrow interpretation of the term “ deposit.” Rather, that subsection broadly encompasses the deposit of Fund moneys not only in Federal Reserve banks or in “ depositories for public funds,” but also “ in such other places and in such manner as the Postal Service and the Secretary may mutually agree.” That expan­ sive description demonstrates that § 2003(d) was intended to apply to virtually any disposition of Fund moneys, not merely to conventional bank-type deposits. This conclusion is consistent with the broad interpretation of Treasury’s authority under § 2003(d) reflected in the Attorney General’s opinion in 1977, resolving a comparable dispute between Treasury and the Postal Service. In con­ firming that § 2003(d) imposed limitations on the general powers of the USPS in making dispositions of the Fund, the Attorney General stated: Thus, for example, § 2003(d), which authorizes the Postal Service to deposit moneys in the Fund in bank accounts with the approval of the Secretary, restricts any implicit authority to open accounts which the Service might otherwise have under the general provi­ sions of the Postal Reorganization Act; and it could not reasonably be argued that in addition to deposits made under this authority the Service might make Fund deposits anywhere else, without the Secretary’s approval. 43 Op. Att’y Gen. at 47 (emphasis added). The Attorney General’s 1977 opinion reenforces our view that the purposely restrictive provisions of § 2003(d) should not be circumvented by an unduly narrow interpretation of the verb “ deposit.” B. Treasury Restraints on USPS Right to Sell Bonds The second issue is whether the USPS was entitled to proceed with a proposed market offering of USPS bonds when Treasury, within the 15-day pre-offering notice period required by 39 U.S.C. § 2006(a), had invoked (but not actually exer­ cised) its right to purchase that offering. That section provides (emphasis added): At least 15 days before selling any issue of obligations under section 2005 of this title, the Postal Service shall advise the Sec­ retary of the Treasury of the amount, proposed date of sale, matu­ rities, terms and conditions, and expected maximum rates of interest of the proposed issue in appropriate detail and shall consult with him or his designee thereon. The Secretary may elect to purchase such obligations under such terms, including rates o f interest, as 241 Opinions o f the Office o f Legal Counsel in Volume 19 he and the Postal Service may agree, but at a rate of yield no less than the prevailing yield on outstanding marketable Treasury securi­ ties of comparable maturity, as determined by the Secretary. If the Secretary does not purchase such obligations, the Postal Service may proceed to issue and sell them to a party or parties other than the Secretary upon notice to the Secretary and upon consultation as to the date of issuance, maximum rates of interest, and other terms and conditions. USPS argues that even if Treasury has declared its “ election” to purchase the offering, and negotiations to reach an agreement on terms have been undertaken, the only way Treasury can prevent USPS from proceeding on schedule with the proposed market offering is by completing the actual purchase of the offering (and not through mere continuation of good-faith negotiations) before expiration of the 15-day advance notice period. In contrast, Treasury has contended that it has an “ absolute right of first refusal” with respect to the proposed offering and, once it has given notice of its “ election” to purchase within the 15-day period, USPS is barred from proceeding with a market sale of the bonds and must con­ tinue to pursue negotiations with Treasury — if necessary, beyond the initially pro­ posed offering date. Our original opinion (1) rejected the USPS argument that nothing less than actual purchase of the offering by Treasury could prevent USPS from proceeding with the scheduled offering; (2) determined that the statute does not require Treasury to have agreed on terms with USPS before exercising its election to purchase and enables Treasury to require USPS to bargain exclusively with Treasury even beyond the date originally proposed for the offering; and (3) indicated that “ [t]here is no limit on the negotiation period” that is implicitly required by the statute once Treasury has stated that it “ elect[s] to purchase” the offering. 17 Op. O.L.C. at 7, 9-11. We reaffirm conclusions (1) and (2) and again reject the USPS argument that Treasury’s priority purchase right under 39 U.S.C. § 2006(a) automatically expires if Treasury’s election to purchase does not result in the completion of negotiations and consummation of the purchase by the proposed sale date. On this point, we have again considered USPS’ contentions that certain legisla­ tive history underlying the Federal Financing Bank Act of 1973, Pub. L. No. 93224, 87 Stat. 937 (1973) (“ FFBA” ) confirms the USPS argument that Treasury must complete (as opposed to merely initiating) the purchase of a proposed USPS debt offering within 15 days after receiving first notice of the offering, or waive all purchase rights. In particular, USPS cites language from committee reports on the FFBA stating that “ the Secretary of the Treasury may purchase all Postal Service obligations if he does so within the time period prescribed in 39 U.S.C. 2006(a).” H.R. Rep. No. 93-299, at 5 (1973), reprinted in 1973 U.S.C.C.A.N. 242 Scope oj Treasury Department Purchase Rights with Respect to Financing Initiatives o f the U.S. Postal Service 3153, 3157 (“ PRA House Report” ). Although this argument is not without force, we do not find it sufficiently persuasive to alter our conclusion on this point. First, observations in committee reports concerning the FFBA simply do not provide persuasive legislative history for purposes of the Postal Reorganization Act, Pub. L. No. 91-375, 84 Stat. 719 (1970) (“ PRA” ). The FFBA was enacted three years after the PRA and concerned a more comprehensive range of federal agency financing issues. It is well-settled that the pronouncements of a subsequent Congress do not constitute reliable evidence of the intent or understandings of a prior Congress. Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 117 (1980); United States v. Price, 361 U.S. 304, 313 (1960). We are not persuaded that this sound general principle should be disregarded in inter­ preting the PRA. Second, the committee report on the FFBA was not concerned with the discrete issue raised here — whether Treasury must merely initiate, or actually effectuate, the purchase of a USPS offering within the 15-day initial notice period — as opposed to the broader question of whether the USPS would retain “ independent financing authority” after enactment of the F F B A . The segments of the FFBA committee reports in question were intended to provide broad assurance that the FFBA would not unduly impair USPS’ existing financing authority under the PRA, and thus presented a broad interpretation of that authority. These post-enactment descriptions of § 2006(a) simply cannot be equated with a contemporaneous and authoritative explication of the section’s provisions by the Congress that enacted it. Third, the excerpts from the FFBA legislative history themselves contain an element of ambiguity on the matter in dispute. Although the segment quoted above would support the USPS contentions, it is followed by the following additional statement: However, if the [Federal Financing] Bank or the Secretary [of the Treasury] did not act to take up a proposed Postal borrowing within the prescribed time limit [provided in 39 U.S.C. 2006(a)], the Postal Service could, on its own initiative, borrow in the private market under its independent Postal Reorganization Act authority. PRA House Report at 5, reprinted in 1973 U.S.C.C.A.N. at 3157-58 (emphasis added). Treasury’s declaration of an election to purchase can certainly be viewed as “ actfing] to take up” the proposed obligations, even when the purchase has not been fully consummated. That phrase connotes the initiation of the purchasing process. Consequently, even the FFBA committee report highlighted by USPS does not unambiguously support its interpretation of § 2006(a). Finally, and most importantly, the text of § 2006(a) strongly indicates that its drafters contemplated that Treasury would sometimes find it necessary to negotiate 243 Opinions o f the Office o f Legal Counsel in Volume 19 modified terms to govern the proposed issue after Treasury has declared its elec­ tion to purchase. Thus, the section specifically provides: The Secretary may elect to purchase such obligations under such terms, including rates o f interest, as he and the Postal Service may agree, but at a rate of yield no less than the prevailing yield on outstanding marketable Treasury securities of comparable maturity, as determined by the Secretary. 39 U.S.C. § 2006(a) (emphasis added). If the section required Treasury to consum­ mate its purchase option within 15 days after initial notice, USPS could easily frustrate the statute’s provision for purchase by Treasury at negotiated terms that may sometimes differ from those originally proposed by USPS. It could do so by simply refusing to budge in any respect from its original terms during the 15-day period following initial notice. We do not believe that Congress intended to circumscribe Treasury’s purchase options to that degree in enacting § 2006(a). However, we modify our prior opinion insofar as it indicates that Treasury may delay the USPS offering indefinitely with unlimited negotiations once it has stated its election to purchase. We conclude that such negotiations cannot be prolonged beyond USPS’ scheduled market offering date to such an extent as to impair substantially USPS’ capacity to consummate the proposed offering in a timely fashion; rather, Treasury’s option to purchase must be consummated within a commercially reasonable period of time. Enabling Treasury to force an indefinite delay in a proposed USPS bond offering — even when it has not bound itself to purchase the offering on the terms proposed by US>PS or on any other specified terms by the scheduled date of sale — appears inconsistent with the statute’s intent to provide USPS with a significant degree of business freedom and to prevent Treasury from exercising a blanket veto over USPS financial offering proposals. Thus, the House Report on the PRA emphasized that Treasury’s authority under § 2006(a) did not extend to preventing USPS from borrowing and did not include “ any inappropriate power . . . to con­ trol the scale of Postal Service operations.” H.R. Rep. No. 91-1104, at 21 (1970), reprinted in 1970 U.S.C.C.A.N. 3649, 3669 (“ House Report” ). In other commercial contexts, courts have established that a purchase option or right of first refusal4 (which was Treasury’s description of the rights granted to it under the statute) must be exercised within a “ commercially reasonable” period of time. E.g., Barco Urban Renewal Corp. v. Housing Auth. o f Atlantic City, 674 F.2d 1001, 1007 (3d Cir. 1982) (“ in these circumstances the right of first refusal lasts for a commercially reasonable time” ); West Texas Transmission, 4 In a portion o f our 1993 opinion, we used the term “ right o f first refusal*’ as a shorthand label for one of the three possible readings that might be applied to Treasury’s purchase rights under § 2006(a). 17 Op. O.L.C. at 9. Here, we use the term in its general com m ercial sense rather than in the narrower sense in which we employed it in the 1993 opinion to describe a particular interpretation o f § 2006(a). 244 Scope o f Treasury Department Purchase Rights with Respect to Financing Initiatives o f the U.S. Postal Service L.P. v. Enron Corp., 907 F.2d 1554, 1562 (5th Cir. 1990), cert, denied, 499 U.S. 906 (1991); Brauer v. Hobbs, 391 N.W.2d 482, 486 (Mich. Ct. App. 1986). In the absence of contrary language in the statute, this well-established commercial principle provides a relevant consideration in construing the purchase rights incor­ porated in § 2006(a). We do not think the statute was intended to enable Treasury to prevent USPS from proceeding with a proposed bond offering by requiring USPS to submit to an indefinite and unlimited period of negotiations. Such power would constitute the kind of “ inappropriate power in the Treasury to control the scale of Postal Service operations” that was foresworn in the legislative history. See House Report at 21, reprinted in 1970 U.S.C.C.A.N. at 3669. If Treasury’s ability to delay the proposed USPS offering date for purposes of negotiating agreeable purchase terms is limited to a commercially reasonable period, however, it would not be inordinate or inappropriate.5 Although we cannot project a specific period or time-range that would be “ reasonable” for the varying circumstances that USPS might confront in the future, we believe that a delay of such length as to substantially alter the circumstances which established the premises of the originally proposed offering would generally be considered unreasonable. Generally accepted custom and practice in the government securities sector would provide an appropriate point of reference for determining commer­ cially reasonable timeframes in this context. In summary, our conclusions regarding Treasury’s purchase rights under 39 U.S.C. § 2006(a) are as follows: 1. If Treasury has declared its election to purchase the proposed issue before the proposed sale date, and Treasury is still pursuing good-faith negotiations towards mutually agreeable terms, the USPS is not free to proceed with a sale on the market merely because Treasury has not completed the purchase within the 15-day period following initial notice of the proposed sale. 2. Treasury may not frustrate USPS’ right to sell the obligations elsewhere for an indefinite period by declining to purchase at the originally proposed terms when good-faith negotiations have failed to produce mutually agreeable alternative terms. If Treasury and USPS are unable to negotiate mutually agreeable terms within a commercially reasonable period of time following the originally proposed sale date, USPS may proceed to sell to another purchaser. 3. Treasury is not authorized to dictate or control the terms of the USPS offering, but it must be afforded a reasonable opportunity to reach mutually agree­ able terms with USPS when the original terms proposed by USPS are unaccept­ 5 This interpretation is consistent with then Under Secretary o f the Treasury Paul Volcker’s testimony during the Senate hearings on the PRA, where he stated that the provisions in question would give the Secretaiy the authority “ to supervise the timing o f the financing and the terms o f any financing by the postal authority, but he can never put him self in a position where he is preventing the postal authority from obtaining what financing they think is ne ce ssa ry /’ Postal Modernization: Hearings Before the Senate Comm, on Post Office and Civil Service, 91st Cong. 311 (1969). 245 Opinions o f the Office o f Legal Counsel in Volume 19 able. That reasonable opportunity is not rigidly limited by the 15-day period for declaring an election to purchase. WALTER DELLINGER Assistant Attorney General Office of Legal Counsel 246

Write a legal research memo on the following topic.

Septem ber 27, 1977 77-54 MEMORANDUM OPINION FOR THE ASSISTANT TO THE ATTORNEY GENERAL Transfer of Watergate Special Prosecution Force Records to the National Archives—Income Tax Information—26 U.S.C. § 6103(a) This is in response to your request for our opinion concerning the legality o f the transfer of W atergate Special Prosecution Force (WSPF) records containing income tax returns or return information to the National Archives. In light of both the stringency o f the provisions pertaining to disclosure o f tax records and the applicable penalties, it would be advisable to seek legislative authorization for a transfer of W SPF tax records to the Archives. T he reasons for our conclusion are set forth herein. The Tax Reform Act o f 1976, Pub. L. 94-455, was designed to impose much greater restrictions on the disclosure of tax returns and return information than had previously existed.1 Such records are now deemed to be “confidential” and are not to be disclosed in any manner “except as authorized by this title.” 26 U.S.C. § 6103(a). See also S. Rep. No. 938 (Part I), 94th Cong., 2d Sess. 318 (1976). Even though disclosure is authorized by § 6103 with respect to a number of Federal agencies or other entities, there is no authorization to disclose tax returns or return information to the Archives.2 The statute would thus, on its face, prohibit a transfer of tax records to the Archives. This statute, however, is not the only one that addresses this prob­ lem. W e must also consider the Archivist’s authority to accept and maintain records: 1 While certain tax records held by the W SPF may be exempt from the restrictions imposed by the A ct, see Treas. Reg. § 404.6103(a)-l, it is our understanding that it is neither feasible nor desirable to segregate these records. W e thus consider the question here as though all W SPF tax records are subject to the 1976 Act. 2 It seems apparent that a transfer to the Archives would result in a “disclosure” subject to the 1976 A ct. That term is defined as “the making known to any person in any m anner w hatever a return or return information,” 26 U.S.C. § 6103(b)(8), and this defini­ tion would be fulfilled because A rchives personnel are expected to examine the records pursuant to Freedom o f Information requests and for archival purposes. 216 The Administrator of General Services shall be responsible for the custody, use, and withdrawal of records transferred to him. When records, the use of which is subject to statutory limitations and restrictions, are so transferred, permissive and restrictive statu­ tory provisions with respect to the examination and use of records applicable to the head of the agency from which the records were transferred or to employees of that agency are applicable to the Administrator, the Archivist of the United States, and to the em­ ployees of the General Services Administration, respectively. 44 U.S.C. § 2104. This provision clearly indicates that materials subject to “restrictive statutory provisions” may be transferred to, and held by, the Archivist. The legislative history of the provision bears this out, for it demon­ strates that the imposition of restrictions on the Archivist was designed to make a transfer of confidential records to the Archives more accept­ able to the agencies generating those records. See H.R. Rep. No. 44, 80th Cong., 1st Sess. 2-3 (1947); S. Rep. No. 706, 80th Cong., 1st Sess. 2 (1947). Indeed, the statutory functions assigned to the Archives would be greatly hampered if it could not obtain and hold historic records subject to restrictions on disclosure. We thus have, on the one hand, a statute allowing accession of confidential records to the Archives, and on the other hand, another statute allowing disclosure only upon an authorization that is not pres­ ent here. These provisions need not necessarily be in conflict. One approach to reconcile them would be to allow a transfer to the A r­ chives only if the statute mandating confidentiality explicitly so pro­ vided. We believe, however, that this is an unsatisfactory resolution of the relationship o f these two statutes. This resolution would frustrate Congress’ intent underlying 44 U.S.C. § 2104 to provide for a conven­ ient repository of historical records subject to some form of restriction on public inspection. Because most statutes mandating some form of confidentiality are similar to 26 U.S.C. § 6103 in that they do not explicitly provide for a transfer to the Archives, a conclusion that the lack of such a provision bars such a transfer would have the practical effect of rendering Congress’ efforts in enacting 44 U.S.C. § 2104 futile. We thus do not believe that Congress intended that a statute mandating confidentiality must expressly provide for a transfer to the Archives in order for such a transfer to be authorized. By the same token, however, we do not believe that 44 U.S.C. § 2104 can be taken to override statutes mandating the confidentiality of rec­ ords in every instance. While it may not often be the case, there may exist situations where Congress’ purposes underlying confidentiality statutes may bar even the sort o f disclosure which occurs in a transfer to the Archives. The fact that the Archives may generally receive confidential records under 44 U.S.C. § 2104 cannot, in our view, justify an approach which does not trouble to inquire into Congress’ intent in 217 enacting a particular statute subjecting certain records to restrictions on disclosure. T he inquiry with respect to intent concerning tax returns and return information produces no clear answer. The legislative materials do not address the problem directly, and those aspects of the materials that relate in some way to this matter were issued without any thought of their applicability to this problem. However, it is our view that on balance the statute itself and its legislative history are indicative of a legislative intent that tax records are not to be transferred to the Archives. W e have already seen th at the statute itself allows for disclosure only “as authorized by this title.” 26 U.S.C. § 6103(a). The legislative history makes clear that Congress intended that no disclosure of tax informa­ tion could be made except in the limited situations delineated in § 6103. S. Rep. No. 938 (Part I), supra, at 318. The amount of attention that was paid to the formulation of the exceptions would allow for an inference that no exception was intended as to the Archives. A stronger indication o f congressional intent on this matter can be derived from its enactment of provisions respecting the disposition of returns and return information. Section 6103(p)(4)(F)(ii) provides that when an agency has completed its use o f tax returns or return informa­ tion, it must (I) return to the Secretary such returns or return information (along with any copies made therefrom) (II) otherwise make such returns or return information undisclosable, or (III) to the extent not so returned or made undisclosable, ensure that the conditions of subparagraphs (A), (B), (C), (X>), and (E) of this paragraph continue to be met with respect to such returns or return information . . . . This clearly shows that Congress was concerned about the disposition of tax records upon the completion of an agency’s task and decided that rigid safeguards should be imposed on their disposition. T he legislative history o f this provision tells how rigid Congress meant these safeguards to be. That history states that the safeguards in general were “designed to protect the confidentiality of the returns and return information and to make certain that they are not used for purposes other than the purposes for which they were disclosed.” S. Rep. No. 938 (Part I), supra, at 344. To ensure that this goal was accomplished, care was to be taken with respect to the disposition of tax records when they w ere no longer needed. In this regard the legislative history states that the statute requires “returning or destroy­ ing the information when the agency is finished with it.” S. Rep. No. 938 (Part I), at 345. This requirement appears to be one of the means chosen by Congress to keep returns from being “scattered all over the landscape.” Hearings on Federal Tax Return Privacy before the Sub­ 218 committee on Administration of the Internal Revenue Code of the Senate Finance Committee, 94th Cong., 1st Sess., 100 (1975) (remarks of Senator Haskell).3 While we recognize that this display of legislative intent does not put the issue beyond all dispute, we believe that the legislative history suggests an intent on the part of Congress that tax records should not be transferred to the Archives. We believe, moreover, that the applica­ ble penalties warrant a cautious interpretation of the statute, see 18 U.S.C. § 1905, 26 U.S.C. §§ 7213, 7217, and that any doubts here with regard to Congress’ intent should thereby be resolved in favor of staying within the explicit restrictions of the statute. We therefore advise that the W SPF tax records should be transferred only upon an ^explicit legislative authorization. L eon U lm a n Deputy Assistant Attorney General Office o f Legal Counsel ‘ We recognize that subparagraph (III) of § 6103(p)(4)(F)(ii) may contemplate some flexibility in dealing with tax records upon the completion of an Agency’s use of them. The intent underlying this provision is somewhat confusing, particularly in light of the statement in the legislative history that returns no longer needed were to be returned or destroyed. In any event, we do not believe that this provision can be taken to authorize a transfer of tax records to an entity not expressly authorized to receive such records by the Act and one that will not use the records for the purposes for which they were originally transferred. 219

Write a legal research memo on the following topic.

Septem ber 27, 1977 77-54 MEMORANDUM OPINION FOR THE ASSISTANT TO THE ATTORNEY GENERAL Transfer of Watergate Special Prosecution Force Records to the National Archives—Income Tax Information—26 U.S.C. § 6103(a) This is in response to your request for our opinion concerning the legality o f the transfer of W atergate Special Prosecution Force (WSPF) records containing income tax returns or return information to the National Archives. In light of both the stringency o f the provisions pertaining to disclosure o f tax records and the applicable penalties, it would be advisable to seek legislative authorization for a transfer of W SPF tax records to the Archives. T he reasons for our conclusion are set forth herein. The Tax Reform Act o f 1976, Pub. L. 94-455, was designed to impose much greater restrictions on the disclosure of tax returns and return information than had previously existed.1 Such records are now deemed to be “confidential” and are not to be disclosed in any manner “except as authorized by this title.” 26 U.S.C. § 6103(a). See also S. Rep. No. 938 (Part I), 94th Cong., 2d Sess. 318 (1976). Even though disclosure is authorized by § 6103 with respect to a number of Federal agencies or other entities, there is no authorization to disclose tax returns or return information to the Archives.2 The statute would thus, on its face, prohibit a transfer of tax records to the Archives. This statute, however, is not the only one that addresses this prob­ lem. W e must also consider the Archivist’s authority to accept and maintain records: 1 While certain tax records held by the W SPF may be exempt from the restrictions imposed by the A ct, see Treas. Reg. § 404.6103(a)-l, it is our understanding that it is neither feasible nor desirable to segregate these records. W e thus consider the question here as though all W SPF tax records are subject to the 1976 Act. 2 It seems apparent that a transfer to the Archives would result in a “disclosure” subject to the 1976 A ct. That term is defined as “the making known to any person in any m anner w hatever a return or return information,” 26 U.S.C. § 6103(b)(8), and this defini­ tion would be fulfilled because A rchives personnel are expected to examine the records pursuant to Freedom o f Information requests and for archival purposes. 216 The Administrator of General Services shall be responsible for the custody, use, and withdrawal of records transferred to him. When records, the use of which is subject to statutory limitations and restrictions, are so transferred, permissive and restrictive statu­ tory provisions with respect to the examination and use of records applicable to the head of the agency from which the records were transferred or to employees of that agency are applicable to the Administrator, the Archivist of the United States, and to the em­ ployees of the General Services Administration, respectively. 44 U.S.C. § 2104. This provision clearly indicates that materials subject to “restrictive statutory provisions” may be transferred to, and held by, the Archivist. The legislative history of the provision bears this out, for it demon­ strates that the imposition of restrictions on the Archivist was designed to make a transfer of confidential records to the Archives more accept­ able to the agencies generating those records. See H.R. Rep. No. 44, 80th Cong., 1st Sess. 2-3 (1947); S. Rep. No. 706, 80th Cong., 1st Sess. 2 (1947). Indeed, the statutory functions assigned to the Archives would be greatly hampered if it could not obtain and hold historic records subject to restrictions on disclosure. We thus have, on the one hand, a statute allowing accession of confidential records to the Archives, and on the other hand, another statute allowing disclosure only upon an authorization that is not pres­ ent here. These provisions need not necessarily be in conflict. One approach to reconcile them would be to allow a transfer to the A r­ chives only if the statute mandating confidentiality explicitly so pro­ vided. We believe, however, that this is an unsatisfactory resolution of the relationship o f these two statutes. This resolution would frustrate Congress’ intent underlying 44 U.S.C. § 2104 to provide for a conven­ ient repository of historical records subject to some form of restriction on public inspection. Because most statutes mandating some form of confidentiality are similar to 26 U.S.C. § 6103 in that they do not explicitly provide for a transfer to the Archives, a conclusion that the lack of such a provision bars such a transfer would have the practical effect of rendering Congress’ efforts in enacting 44 U.S.C. § 2104 futile. We thus do not believe that Congress intended that a statute mandating confidentiality must expressly provide for a transfer to the Archives in order for such a transfer to be authorized. By the same token, however, we do not believe that 44 U.S.C. § 2104 can be taken to override statutes mandating the confidentiality of rec­ ords in every instance. While it may not often be the case, there may exist situations where Congress’ purposes underlying confidentiality statutes may bar even the sort o f disclosure which occurs in a transfer to the Archives. The fact that the Archives may generally receive confidential records under 44 U.S.C. § 2104 cannot, in our view, justify an approach which does not trouble to inquire into Congress’ intent in 217 enacting a particular statute subjecting certain records to restrictions on disclosure. T he inquiry with respect to intent concerning tax returns and return information produces no clear answer. The legislative materials do not address the problem directly, and those aspects of the materials that relate in some way to this matter were issued without any thought of their applicability to this problem. However, it is our view that on balance the statute itself and its legislative history are indicative of a legislative intent that tax records are not to be transferred to the Archives. W e have already seen th at the statute itself allows for disclosure only “as authorized by this title.” 26 U.S.C. § 6103(a). The legislative history makes clear that Congress intended that no disclosure of tax informa­ tion could be made except in the limited situations delineated in § 6103. S. Rep. No. 938 (Part I), supra, at 318. The amount of attention that was paid to the formulation of the exceptions would allow for an inference that no exception was intended as to the Archives. A stronger indication o f congressional intent on this matter can be derived from its enactment of provisions respecting the disposition of returns and return information. Section 6103(p)(4)(F)(ii) provides that when an agency has completed its use o f tax returns or return informa­ tion, it must (I) return to the Secretary such returns or return information (along with any copies made therefrom) (II) otherwise make such returns or return information undisclosable, or (III) to the extent not so returned or made undisclosable, ensure that the conditions of subparagraphs (A), (B), (C), (X>), and (E) of this paragraph continue to be met with respect to such returns or return information . . . . This clearly shows that Congress was concerned about the disposition of tax records upon the completion of an agency’s task and decided that rigid safeguards should be imposed on their disposition. T he legislative history o f this provision tells how rigid Congress meant these safeguards to be. That history states that the safeguards in general were “designed to protect the confidentiality of the returns and return information and to make certain that they are not used for purposes other than the purposes for which they were disclosed.” S. Rep. No. 938 (Part I), supra, at 344. To ensure that this goal was accomplished, care was to be taken with respect to the disposition of tax records when they w ere no longer needed. In this regard the legislative history states that the statute requires “returning or destroy­ ing the information when the agency is finished with it.” S. Rep. No. 938 (Part I), at 345. This requirement appears to be one of the means chosen by Congress to keep returns from being “scattered all over the landscape.” Hearings on Federal Tax Return Privacy before the Sub­ 218 committee on Administration of the Internal Revenue Code of the Senate Finance Committee, 94th Cong., 1st Sess., 100 (1975) (remarks of Senator Haskell).3 While we recognize that this display of legislative intent does not put the issue beyond all dispute, we believe that the legislative history suggests an intent on the part of Congress that tax records should not be transferred to the Archives. We believe, moreover, that the applica­ ble penalties warrant a cautious interpretation of the statute, see 18 U.S.C. § 1905, 26 U.S.C. §§ 7213, 7217, and that any doubts here with regard to Congress’ intent should thereby be resolved in favor of staying within the explicit restrictions of the statute. We therefore advise that the W SPF tax records should be transferred only upon an ^explicit legislative authorization. L eon U lm a n Deputy Assistant Attorney General Office o f Legal Counsel ‘ We recognize that subparagraph (III) of § 6103(p)(4)(F)(ii) may contemplate some flexibility in dealing with tax records upon the completion of an Agency’s use of them. The intent underlying this provision is somewhat confusing, particularly in light of the statement in the legislative history that returns no longer needed were to be returned or destroyed. In any event, we do not believe that this provision can be taken to authorize a transfer of tax records to an entity not expressly authorized to receive such records by the Act and one that will not use the records for the purposes for which they were originally transferred. 219

Write a legal research memo on the following topic.

Authority of the President to Name an Acting Attorney General The President may designate an Acting Attorney General under the Vacancies Reform Act, even if an officer of the Department of Justice otherwise could act under 28 U.S.C. § 508, which deals with succession to the office of the Attorney General. September 17, 2007 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT You have asked for our opinion whether the President has authority to name an Acting Attorney General under the Vacancies Reform Act, 5 U.S.C. §§ 33453349d (2000 & Supp. IV 2004), even if an officer of the Department of Justice otherwise could act under 28 U.S.C. § 508 (2000). As we advised orally, we believe that the President has this authority. The Vacancies Reform Act ordinarily provides “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency . . . for which appointment is required to be made by the President, by and with the advice and consent of the Senate.” 5 U.S.C. § 3347(a). This provision is subject to an exception, however, when “a statutory provision expressly . . . authorizes the President, a court, or the head of an Executive department, to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity.” Id. § 3347(a)(1)(A). Section 508 of title 28 is such a statute. It states that when the office of Attorney General is vacant, the Deputy Attorney General “may exercise all the duties of that office”; that when the office of Deputy Attorney General is vacant, the Associate Attorney General “shall act as Attorney General”; and that the Attorney General “may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.” 28 U.S.C. § 508(a), (b). The Vacancies Reform Act thus did not extinguish the authority under 28 U.S.C. § 508 by which an Acting Attorney General might serve. Attorney General Alberto R. Gonzales has resigned, effective today. Attorney General Order No. 2877-2007 (Mar. 29, 2007), issued under 28 U.S.C. § 508, specifies the order of succession to act as Attorney General when the positions of Deputy Attorney General and Associate Attorney General are vacant—as they are now. The Solicitor General is first in line, followed by the Assistant Attorneys General for the Office of Legal Counsel, for National Security, for the Criminal Division, and for the Civil Division. The President wishes the Assistant Attorney General for the Civil Division to act as Attorney General. To achieve this end, he has decided to designate that officer under the Vacancies Reform Act. Your question arises because the provision specifying that the Vacancies Reform Act 208 Authority of the President to Name an Acting Attorney General ordinarily is the exclusive means for naming an acting officer, 5 U.S.C. § 3347, does not apply here. That the Vacancies Reform Act is not exclusive does not mean that it is unavailable. By its terms, the Vacancies Reform Act (with express exceptions not relevant here) applies whenever a Senate-confirmed officer in an executive agency resigns. 5 U.S.C. § 3345(a). The Vacancies Reform Act nowhere says that, if another statute remains in effect, the Vacancies Reform Act may not be used. Indeed, the Senate Committee Report accompanying the Act expressly disavows this view. After listing a number of statutes that would come within the exception to exclusivity in the Vacancies Reform Act, including 28 U.S.C. § 508, the Senate Committee Report states that “[i]n any event, even with respect to the specific positions in which temporary officers may serve under the specific statutes this bill retains, the Vacancies [Reform] Act would continue to provide an alternative procedure for temporarily occupying the office.” S. Rep. No. 105-250, at 17 (1998). 1 Furthermore, nothing in the text of the statute or its legislative history supports the conclusion that the “alternative procedure” of the Vacancies Reform Act may be used only when no one can serve under a statute like 28 U.S.C. § 508. In analogous circumstances, we earlier concluded that the President could use the Vacancies Reform Act to name an Acting Director of the Office of Management and Budget, even though another statute, 31 U.S.C. § 502(f) (2000), came within the exception to exclusivity under the Vacancies Reform Act and authorized the President to designate an Acting Director. We wrote that “[t]he Vacancies Reform Act does not provide . . . that where there is another statute providing for a presidential designation, the Vacancies Reform Act becomes unavailable. The legislative history squares with the conclusion that, in such circumstances, the 1 The President has already issued an order embodying the conclusion that the Vacancies Reform Act is available for naming an Acting Attorney General. On March 19, 2002, he issued a Memorandum for the Attorney General on Designation of Officers of the Department of Justice, 1 Pub. Papers of Pres. George W. Bush 752 (2002), under which he exercised his authority under the Vacancies Reform Act to provide that, when the officials designated under 28 U.S.C. § 508 have died, resigned, or otherwise become unavailable to perform the duties of the Attorney General, specified United States Attorneys would constitute an additional chain of succession to act as Attorney General. The precise issue here, however, is whether the President may use the Vacancies Reform Act even if an officer otherwise would be able to act under 28 U.S.C. § 508. We note that, under the version of the Vacancies Act in effect before the Vacancies Reform Act, the provision allowing the President to designate an officer to act did “not apply to a vacancy in the office of Attorney General.” 5 U.S.C. § 3347 (1994). As originally introduced and as later reported by the Senate Committee, the Vacancies Reform Act would have provided that “[w]ith respect to the office of the Attorney General of the United States, the provisions of section 508 of title 28 shall be applicable.” See 144 Cong. Rec. 12,433 (June 16, 1998) (proposed 5 U.S.C. § 3345(c)); S. Rep. No. 105-250, at 25 (same). That provision was not enacted as part of the final bill, and no provision of the Vacancies Reform Act bars the President from designating an Acting Attorney General under that statute. 209 Opinions of the Office of Legal Counsel in Volume 31 Vacancies Reform Act may still be used.” Designation of Acting Director of the Office of Management and Budget, 27 Op. O.L.C. 121, 121 n.1 (2003). 2 We do not believe that this opinion could be distinguished on the ground that, there, the President had the authority under both statutes, while here the authority under the Vacancies Reform Act belongs to the President and section 508 provides that the Attorney General may designate officers to serve. Neither the text of the statute nor the legislative history places any weight on such a distinction. Nor would it make sense that the Attorney General, through the exercise of a discretionary authority to name a further order of succession after the Deputy Attorney General and Associate Attorney General, could prevent the President, his superior, from using his separate authority under the Vacancies Reform Act. Indeed, for this reason, we believe that the President’s action under the Vacancies Reform Act, without more, trumps the Attorney General’s designation of a succession under section 508. 3 A footnote in guidance from the Counsel to the President issued in 2001 states that the Vacancies Reform Act does not apply to the position of Attorney General “unless there is no official serving in any of the positions designated by section 508 to act as attorney general in the case of a vacancy.” Memorandum for the Heads of Federal Executive Departments and Agencies and Units of the Executive Office of the President, from Alberto R. Gonzales, Counsel to the President, Re: Agency Reporting Requirements Under the Vacancies Reform Act at 2 n.2 (Mar. 21, 2001). For the reasons set out above, we believe that this statement is incorrect and that the President may use the Vacancies Reform Act even when there is an official serving in one of the designated positions under section 508. We note that the subject of the memorandum was reporting requirements under the Vacancies Reform Act, not the eligibility of officers to act under the statute, and the footnote appears in a section of the memorandum that only gives background for the reader. Moreover, the memorandum preceded our later analysis of the analogous issue posed by a vacancy in the Office of Management and Budget. 2 Similarly, we have concluded that the Vacancies Reform Act could be used to provide for an Acting United States Attorney. We observed that another statute, 28 U.S.C. § 546, allowed appointment of an interim United States Attorney, who would fill the office (not be an acting officer), but that even if section 546 had dealt with acting officers, that section and the Vacancies Reform Act would both be available. Temporary Filling of Vacancies in the Position of United States Attorney, 27 Op. O.L.C. 149, 149–50 (2003). 3 Section 508 itself may give some indication that it does not displace the Vacancies Reform Act whenever an official in the chain of succession under 28 U.S.C. § 508(a) remains at the Department. Section 508(a) provides that “for the purpose of section 3345(a) of title 5 the Deputy Attorney General is the first assistant to the Attorney General.” Cf. United States v. Lucido, 373 F. Supp. 1142, 1147–51 (E.D. Mich. 1974) (under a previous version of the statute, the court suggested that the Deputy Attorney General had acted under the “first assistant” provision of the Vacancies Act and, when he reached the time limit under that statute, thereafter served under 28 U.S.C. § 508; the Department of Justice argued that the entire service was only under section 508). 210 Authority of the President to Name an Acting Attorney General We therefore believe that the President may name an Acting Attorney General under the Vacancies Reform Act and that he can take this step even if officers named under section 508 would otherwise be able to perform the Attorney General’s functions and duties. 4 STEVEN G. BRADBURY Principal Deputy Assistant Attorney General Office of Legal Counsel 4 In the event that the Assistant Attorney General for the Civil Division were unable to carry out the duties of the Attorney General, either in general or in a specific case, the order of succession under 28 U.S.C. § 508 would again become applicable. 211

Write a legal research memo on the following topic.

Applicability of 18 U.S.C. § 1721 to Collection of Fee for Stamped Cards T he Postal S erv ice m ay ch arg e a fee for stam ped cards in addition to the face value o f the postage w ithout violatin g 18 U .S.C . § 1721. January 7, 1999 M em o ra n d u m O p in io n fo r t h e U n it e d Sta V ic e tes P Po r e s id e n t a n d stal S G eneral C o u n sel e r v ic e This responds to your letter of July 27, 1998, requesting the Justice Depart­ ment’s legal opinion whether the provisions of 18 U.S.C. § 1721 (1994) prohibit the sale of stamped cards for a one-cent fee that has been authorized by the Postal Service Board of Governors and that is to be charged in addition to the value of the postage charge identified on the stamp that appears on the face of the cards.1 We conclude that § 1721 is not properly construed to impose such a prohibition. I. “ Stamped cards,” formerly known as postal cards or postcards, are postcard­ sized items of stationery bearing a preprinted postage marking. They are presently sold by the U.S. Postal Service ( “ Service” ) at postal retail units throughout the United States at a price of twenty cents per card. Heretofore, the Postal Service has not charged a separate fee for the cost of the stationery component — as distin­ guished from the face postage value — of stamped cards. Consequently, the price currently recovered by the Service for stamped cards accounts for postage value only; the stationery component is effectively provided free of charge. Pursuant to its statutory authority to establish postal rates, fees, and classifica­ tions, the Service has undertaken to establish a new fee on stamped cards that would enable it to recover its costs for the stationery component. Under the procedures established by the Postal Reorganization Act, Pub. L. No. 91-375, 84 Stat. 719 (1970) (“ P R A ” ), changes in postal rates, fees, or classifica­ tions are initiated when the Postal Service proposes the change to the independent Postal Rate Commission (“ Commission” ). See 39 U.S.C. §3622 (1994), as amended by Postal Employees Safety Enhancement Act, Pub. L. No. 105-241, § 5, 112 Stat. 1572, 1573 (1998) ( “ PESEA” ); id. § 3623. If the Commission favor­ 1 L e tte r fo r th e H o n o rab le Jam es K. R obinson, A ssistant A ttorney G eneral, C rim in al D ivision, fro m M ary S Elcano, S e n io r V ice P resid en t and G eneral Counsel, U .S . P ostal S ervice (July 27, 1998) ( “ U SPS L e tte r” ). Y our inquiry w as referre d to th is O ffice fo r response S e e 28 C F R § 0 .25(a) (1998) W e requested, and you h ave provided, th e S e rv ic e ’s ag reem en t to b e bound by o u r opinion on this issu e S ee L etter fo r B eth N olan, D eputy A ssistant A tto rn e y G en eral, O ffice o f L egal Counsel, fro m M ary S. E lcano, S en io r V ice P resident and G en eral C ounsel, U.S P o stal S erv ic e (A ug. 14, 1998). Applicability o f 18 U.S.C. § 1721 to Collection o f Fee fo r Stamped Cards ably recommends the Service’s proposal, the Governors of the Postal Service ( “ Governors” ) are vested with the ultimate authority to approve or reject new rates, fees, and classifications. See id. §§3624, 3625. Changes adopted by the Governors are then formally promulgated as provisions of the Domestic Mail Classification Schedule (“ DMCS” ), which is published at 39 C.F.R. pt. 3001, subpt. C, app. A (1998), and in the form of Postal Service rules implementing changes to the Domestic Mail Manual (“ DMM” ). See 39 U.S.C. §401(2) (1994); 39 C.F.R. pt. I l l (1998). In 1996, the Service petitioned the Commission to recommend the adoption of a new two-cents fee to be paid on the purchase of stamped cards to recover the costs of manufacturing such cards. In the proceedings before the Commission, two individual mailers intervened in opposition to the proposed fee. Among other things, the intervenors argued that collection of the fee would violate 18 U.S.C. § 1721, a criminal statute, which provides in relevant part: Whoever, being a Postal Service officer or employee, knowingly and willfully: . . . sells or disposes of postage stamps or postal cards for any larger or less sum than the values indicated on their faces; or sells or disposes of stamped envelopes for a larger or less sum than is charged therefor by the Postal Service for like quan­ tities; . . . or sells or disposes of postage stamps, stamped enve­ lopes, or postal cards, otherwise than as provided by law or the regulations of the Postal Service; shall be fined under this title or imprisoned not more than one year or both. The Commission did not reach the intervenors’ contentions regarding § 1721 in its initial disposition. Although it declined to recommend adoption of the pro­ posed fee at that time on factual grounds unrelated to the issue posed here, the Commission did recommend the fee classification proposed by the Service in the form of a “ shell classification” — i.e., a classification earmarked for distinct rate treatment, but without the recommendation of any particular current rate level. In 1997, the Service again proposed adoption of the two-cents card fee to the Commission, and one of the previously noted intervenors again contended that charging such a fee would violate 18 U.S.C. § 1721. The Commission Presiding Officer, however, determined that the proposed fee “ likely” would not violate §1721, stating “ [e]ven if the face value of a stamped card did not equal its price, postal employees would likely not be in violation of the statute.” Presiding Offi­ cer’s Ruling on Popkin’s Motion to Dismiss, No. R97-1/31, at 3 (Sept. 26, 1997) (“ Popkin Ruling” ). 9 Opinions o f the Office o f Legal Counsel in Volume 23 Subsequently, the Commission issued a decision recommending a one-cent fee for stamped cards over and above the twenty-cents postage charge.2 In June 1998, the Governors approved the one-cent fee on stamped cards, “ in addition to post­ age,” under the authority of 39 U.S.C. § 3625, and determined that the fee would go into effect on January 10, 1999. The authorized fee was officially published in the form of a change to the DMCS, domestic rates and fees. See Changes in Domestic Rates, Fees, and Mail Classifications, 63 Fed. Reg. 39,124, 39,145, and 39,163 (1998).3 Further implementing the authorized fee, the Postal Service promulgated a Final Rule on July 14, 1998, setting forth the DMM standards adopted by the Service to implement, among numerous other new provisions, the stamped card fee approved in the Decision of the Governors of the Postal Service in Postal Rate Commission Docket No. R97-1. See Domestic Mail Manual Changes To Implement the Rate, Fee, and Classification Changes in Docket No. R97-1, 63 Fed. Reg. 37,946, 37,957 (1998) (to be codified at 39 C.F.R. pt. 111). The new provision of the DMM states: A $0.01 fee per stamped card and a $0.02 fee per double stamped card will be added to cover manufacturing and printing costs. A fee of $0.40 will be added to the price of a sheet of 40 stamped cards. This is consistent with the existing fee structure for stamped envelopes, where customers are charged postage plus a small fee for the envelope itself. Id. at 37,957. In light o f the intervenors’ contentions in the rate proceedings, you have sought the Department’s opinion as to whether charging the one-cent fee on the stamped cards, without changing the postage imprinted on the cards to include the amount of that fee,4 would result in criminal violation of 18 U.S.C. § 1721. 2 T h e reasons w hy the C o m m issio n recom m ended (and the G overnors later approved) a one-cent fee rather than the tw o -cen ts p ro p o sed by the S erv ic e was ex p lain ed by the C om m ission as follow s “ A o ne-cent fee fo r a stam ped card ea sily co v e rs m a n u factu rin g costs and m a k es an adequate contributio n w ith a co st co v erag e o f 125 percent . . . T h e c o st co v e ra g e sh o u ld be relatively lo w for this service, so th at it w ill pro v id e a low co st m ethod by w hich an individual can send m ail ” Opinion a n d R ecom m ended D ecision, D ocket N o R 9 7 -1 , at 595 (Postal Rate C o m m ission, M ay 11, 1998). 3 T h e D om estic M ail C la ssificatio n Schedule is incorporated by referen ce in the P ostal R egulations set forth at 3 9 C F . R § 111.1 (1998). 4 W e are ad v ise d that it w o u ld b e financially an d otherw ise im practicable fo r the S ervice to alter o r m odify its large ex istin g in v en to ry o f stam p ed cards so th a t the face value im printed on the card s (presently tw enty-cents) w ould b e increased to tw en ty -o n e cents, reflectin g the o n e-cent non-postag e fee in addition to p o stag e value See U SPS L etter at 4. M o reo v er, b ec au se the p n ce in d icia stam ped on the ex istin g card s represents the co st o f po sta g e only, it w o u ld ap p e ar an o m alo u s an d m isleading to alter the stam ped p n c e to read “ tw en ty -o n e c e n ts” w hen the actual p o stag e v alu e is o n ly tw enty-cents 10 Applicability o f 18 U.S.C. §1721 to Collection o f Fee fo r Stamped Cards n. In its various submissions to the Commission and the Governors, the Service has asserted that charging the one-cent fee on stamped cards, in addition to the imprinted postage of twenty-cents, would not result in violation of 18 U.S.C. § 1721. Invoking the relevant legislative history, the Service argues that the criminal statute was enacted solely to remedy fraudulent pricing practices engaged in by postmasters in order to inflate their salaries; that § 1721 is therefore con­ cerned solely with unauthorized price manipulation by postal employees; and that it is in no way intended to prevent the authorized collection of supplemental postal fees duly approved by the postal authorities. See USPS Letter at 4. The Service also contends that interpreting § 1721 to prohibit implementation of the proposed fee arrangement would be inconsistent with the powers and authorities designedly granted the Service by Congress under the PRA. As the Service asserted in a brief to the Commission: A stamped card fee would not give rise to a violation of section 1721, since, if implemented, it would be entirely consistent with the policies of Postal Service management, and therefore would not result in the unauthorized sale of postage at inflated rates. It is evi­ dent that Congress did not intend the restrictions in 1721 to apply to pricing policies recommended by the Commission, approved by the Governors, and implemented by postal management, since, simultaneously with the enactment of conforming amendments to section 1721 adopted in connection with the Postal Reorganization Act and 39 U.S.C. § 410(b)(2), Congress contemplated that mail classifications such as postal cards would be subject to change, as it created an elaborate scheme for the implementation of and changes to the Domestic Mail Classification Schedule. See 39 U.S.C. §§3623, 3625. Reply Brief of United States Postal Service at 111, Special Services Reform, 1996, U.S. Postal Rate Commission, Docket No. MC96-3 (1997). The Service’s position was subsequently endorsed by the Commission Presiding Officer in his opinion denying the intervenor’s motion to dismiss based on the §1721 argument. The Presiding Officer concluded: Even if the face value of a stamped card did not equal its price, postal employees would likely not be in violation of the statute. As the Postal Service convincingly argues, this particular criminal statute appears to have been aimed at preventing the misuse of postal items by postal employees attempting to increase their sala­ 11 Opinions o f the Office o f Legal Counsel in Volume 23 ries (postmasters’ salaries are determined in part by a post office’s revenues). By all appearances, it is not an effort to regulate postal fees. It would be remarkable if Congress had regulated postal fees by criminalizing conduct. ‘‘I f Congress wished to prevent the Postal Service from authorizing the sale of stamped cards for a fee in addi­ tion to postage, Congress would have enacted a law directed at the Postal Service rather than its individual employees and officers.” Opposition at 4 n.2. Popkin Ruling at 3. The Postal Service also invokes an early opinion of the Solicitor of the Post Office Department to bolster its position that § 1721 is solely concerned with unauthorized sales and pricing practices by postal employees, as distinct from offi­ cial changes in postage rates and fees authorized by the Service under the provi­ sions of the PRA. As the Postal Solicitor’s opinion explained with reference to the “ face value” sale requirements o f an earlier version of § 1721: [B]ut accepting the broad and specific terms of the law as applying here, it must be borne in mind that this is a criminal statute, and in order to constitute a violation a criminal intent is necessary, and while it is well established that intent may be presumed from the commission o f the acts prohibited, the circumstances in this case would negative the existence of such intention, especially should the procedure be authorized by the department. . . . For it is to be observed that the purpose of the law is not to secure an exact return, for accounting purposes or otherwise, for the stamped paper disposed of, but to regulate and control postal employees in their handling o f stamped papers, this being apparent from the numerous other provisions o f the law. 6 Op. Solicitor of the Post Office 652, 655 (1918) (emphasis added).5 Thus, the Service, the Commission, and the Post Office Solicitor’s early opinion all appear to agree on the basic proposition that the relevant requirement of 18 U.S.C. § 1721 was intended to apply only to unauthorized and deceptive acts or transactions by Postal employees, and has no proper application to their implementation of authorized fee provisions adopted by the Service in accordance with the provisions of the PRA. 5 T h a t o p in io n con c ern ed th e peculiarities o f U .S . postal operations in S hanghai, C hina, w here a P ostm aster G eneral o rd er w as p ro p o sed that pro v id e d for the sale o f stam ps to the public in exchange fo r foreign currency pegged to th e v alu e o f th e prevailing d aily rate of e x c h a n g e o f U.S currency. T h e issue p resented w as w hether the sale o f stam p s d u rin g p erio d s w hen th e banks w e re closed and, consequently , n o official exch an g e rate (an d therefore no ac c u ra te sales value) co u ld b e ascertained, w o u ld constitute a violation o f the version o f §1721 th en in effect B ased o n th e c o n sid e ratio n s q u o te d above, th e S olicitor con clu d ed that n o violation o f the statute w ould result 12 Applicability o f 18 U.S.C. §1721 to Collection o f Fee fo r Stamped Cards By contrast, the intervenors in the Commission’s proceedings argued that §1721, by its terms, applies to criminalize the sales arrangements proposed by the Service. Section 1721 prohibits the sale by postal employees “ of postage stamps or postal cards for any larger or less sum than the values indicated on their faces,” and it makes no express exception for official actions. Because postal employees would be selling stamped cards bearing a twenty-cents postage indicia on their face for a total sales price of twenty-one-cents, it has been argued that the sale of the cards would constitute sales for a “ larger . . . sum than the values indicated on their faces.” 18 U.S.C. § 1721. III. A. In determining whether the Service’s proposed sales arrangement for the stamped cards would violate the criminal prohibition set forth in § 1721, we need not resolve whether the Service is correct to contend that the criminal prohibition is inapplicable to official, authorized acts by Service employees. For even if we assume that § 1721 may apply to some official, authorized acts, we do not believe that the plain text of § 1721 bars the proposed sales arrangement that we have been asked to consider. To see why this is so, it is important to consider not only the precise terms o f § 1721, but also the overall statutory structure and rel­ evant legislative history, each of which supports the conclusion that the Service’s proposed sales arrangement comports with the terms of the criminal prohibition.6 B. The Service agrees that the literal terms of the statutory prohibition set forth in §1721, which bars the sale of “ postage stamps or postal cards” for sums greater or less than the “ values indicated” on their faces, applies to the sale of “ stamped cards.” The Service concedes that “ stamped cards” are “ postal cards” for purposes of § 1721, and thus that the criminal prohibition applies to stamped cards in the same manner that it would apply to any type of postal cards. The analysis that follows, therefore, accords no weight to the fact that the Service has designated the sales item in question here with a nam e— “ stamped cards” — that does not expressly appear in § 1721. The analysis that follows does accord weight, however, to the Service’s conten­ tion that, in adopting the proposed sales arrangement, it has exercised the discre­ tion that Congress has delegated to it pursuant to the PRA. The Service’s conten­ tion is important because the enactment of the PRA dramatically altered the legis­ 6 T h e C rim inal D ivision o f the U nited States D epartm ent o f Ju stice concurs m th is conclusion. See M em o ran d u m for B eth N olan, D eputy A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, fro m Jam es K. R obinson, A ssistan t A ttorney G eneral, C rim inal D ivision, R e ■Collection F ee f o r Stam ped C ard s (D ec. 30, 1998) 13 Opinions o f the Office o f Legal Counsel in Volume 23 lative and regulatory context in which postal pricing and sales practices — including those covered by 18 U.S.C. § 1721— must be evaluated. Indeed, Con­ gress amended § 1721 at the time that it enacted its postal reform legislation and thereby expressly linked the existing criminal prohibition with the broader statu­ tory and regulatory changes effected by the PRA. See Pub. L. No. 91-375, sec. 6(j)(29), § 1721, 84 Stat. 719, 780 (1970) (extending the prohibition to the sale of postal cards and other postal items “ otherwise than as provided by law or the regulations o f the Postal Service.'").1 Most significantly, the PRA shifted control over postal pricing and sales prac­ tices from Congress to the Service. See National Ass ’n o f Greeting Card Pub­ lishers v. U.S. Postal Service, 462 U.S. 810, 813 (1983) (citation omitted) (“ When, in 1970, Congress enacted the Postal Reorganization Act, it divested itself of the control it theretofore had exercised over the setting of postal rates and fees.” ). In doing so, Congress afforded the Service broad discretion to carry out its functions in a businesslike and cost-effective manner. See S. Rep. No. 91-912, at 2 (1970) ( “ [PJostal management must now be given the unfettered authority and freedom it has been denied for years to maintain and operate an efficient service.” ); 39 U.S.C. § 404(a)(2) (1994) (giving the Service specific authority “ to prescribe, in accordance with this title, the amount of postage and the manner in which it is to be p a id ” ) (emphasis added); id. §401(2) (granting the Service authority “ to adopt, amend, and repeal such rules and regulations as it deems necessary to accomplish the objectives of [the PRA].” ). Accordingly, §1721 should be construed, to the extent that its text will allow, in a manner that will permit the Service to exercise the kind of broad discretion to establish fee changes and to implement them in a businesslike and cost-efficient manner that appears to have been contemplated by Congress when it enacted the PRA. Here, the Service’s proposal to sell postal cards for twenty-one cents, adopted to recover the cost of producing the stationery component of such cards, furthers the statutory purpose of ensuring that postal items are sold for amounts that reflect the costs of their production. Specifically, the PRA requires that postal rates and fees must be established in accordance with “ the requirement that each class of mail or type o f mail service bear the direct and indirect postal costs attributable to that class or type plus that portion of all other costs of the Postal Service reasonably assignable to such class or type.” 39 U.S.C. § 3622(b)(3). The addition of a one-cent fee for the costs of the stationery plainly comports with that statutory command, as the Service has determined that the postage price no longer accounts for the costs of the stationery on which the postage mark appears. In addition, the Service’s proposal to sell its existing inventory of postal cards at the new price, even though these cards do not set forth the new sales price on their face, furthers the statutory purpose of ensuring that fee changes are imple7 F o rm erly, th e statu to ry p ro h ib itio n had a p p lie d to the “ P o st O ffice D e p a rtm e n t” S e e A ct o f Ju n e 25, 1948, ch 6 4 5 , § 1721, 62 S tat. 683, 7 83. 14 Applicability o f 18 U.S.C. § 1721 to Collection o f Fee fo r Stamped Cards merited in a businesslike and cost-effective manner. See UPS Worldwide For­ warding, Inc. v. United States Postal Service, 66 F.3d 621, 638 (3d Cir. 1995), cert, denied, 516 U.S. 1171 (1996) (explaining that “ [i]n enacting the PRA, Con­ gress repeatedly explained the fundamental reason for the dramatic changes man­ dated by the Act; it wanted the Postal Service to operate less like a bureaucratic agency and more like a business. The relevant committee reports repeat this prin­ ciple again and again.” ); see, e.g., H.R. Rep. No. 91-1104, at 11 (1970), reprinted in 1970 U.S.C.C.A.N. 3649, 3660 (“ The Postal Service is a public service but there is no reason why it cannot be conducted in a businesslike way and every reason why it should be.” ). As we have noted, the Service has advised that it would be financially and otherwise impracticable to alter its large, existing inven­ tory of postal cards to account for the newly-determined fee on the face of those cards. See USPS Letter at 4. The Service’s proposed sales arrangement therefore would appear to promote the statutory aim of economic efficiency by imple­ menting the new fee for postal cards — which has been selected to serve the congressional mandate that the fee reflect all of the costs of production — in a manner that makes use of already-printed postal cards without incurring substantial alteration costs. The foregoing analysis demonstrates that the adoption of the intervenors’ pro­ posed construction of the criminal prohibition set forth in § 1721 of title 18 would effectively preclude the Service from adopting a cost-effective means of imple­ menting a fee change that meets the statutory requirement that postal fees reflect all of the costs of the production of the postal item. Because the Service’s pro­ posed sales arrangement appears to represent an exercise of the very type of discretion in the implementation of a fee change that Congress appears to have contemplated when it enacted the PRA, § 1721 should be construed to preclude the exercise of that discretion only if the plain terms of the criminal prohibition would compel that result. In our view, as we explain more fully below, they do not. C. The proposed sales arrangement arguably contravenes the plain terms of § 172l ’s face-sale provision in two distinct ways. First, the Service proposes to sell postal cards for a price — twenty-one cents — that is not set forth on their face. Second, the Service proposes to sell these cards for a price that is greater than the only monetary amount that does appear on their face — namely the amount set forth on the twenty-cents postage stamp that is imprinted on the face of the card. To assess the seriousness of these two potential points of conflict between the statutory text and the Service’s proposed sales arrangement, it is necessary to answer two questions. First, does § 1721 require that postal cards indicate a value 15 Opinions o f the Office o f Legal Counsel in Volume 23 on their face? If it does not, as we conclude below, then the Service may authorize the sale o f postal cards for an amount — twenty-one cents — that is not indicated on the face of the card. This conclusion, however, leads to a second question: Even if the value need not be indicated on the face of the card, when a monetary amount does appear on the face of a postal card in the form of the price of the postage stamp, is the postage amount the only price at which the card may be sold, or is it possible that the card m ay be sold for a value other than the postage amount? If the latter is possible, as we also conclude below, then the Service may authorize the sale of a postal card for an amount that is greater than the stamped postage mark and that is not otherwise indicated on the face of the card. In addressing the first question, it is clear that the plain terms of § 1721 are consistent with the conclusion that the Service may sell postal cards for an amount that is not specified on their face. That is, § 1721 does not require that the face of a postal card must indicate the value of the postal card. The statute prohibits the sale of a postal card for a sum greater or lesser than the indicated value of the postal card, but it does not, by its terms, mandate that the face of the postal card indicate what that value is. Nothing in the text of the criminal prohibition appears to require the conclusion, therefore, that the proposed sales arrangement would be prohibited by the face-sale provision of § 1721 simply because the Service proposes to sell cards that would not have set forth the official value of the cards, as opposed to the official value of the postage of the cards, on their face. This reading of the statutory text accords with longstanding administrative prac­ tice with respect to the sale of postage stamps, which, like postal cards, are subject to the face-sale requirement of § 1721. The Service has regularly issued letterseries postage stamps, which do not indicate a monetary amount but have only a letter of the alphabet indicated on their faces, for a price authorized by the Service but not indicated on the faces of the stamps themselves. To be sure, letterseries stamps do contain a marking on their faces that signifies their value. The actual sales price that a purchaser must pay for the stamp, however, is not discern­ ible from the face of the stamp. A purchaser may verify the official, authorize sales price only by consulting an official Service document that states the price of a stamp bearing a certain letter. In this respect, letter-series stamps are similar to postal cards that do not bear their sales price on their faces. In each case, a purchaser must look beyond the face of the postal item, and consult official materials, to determine the official price. Thus, if § 1721, which requires that both postage stamps and postal cards be sold for no more or less than “ the values indicated on their faces,” imposed a requirement that these items always indicate the monetary amount of their sales price on their faces, then letter-series stamps would have been prohibited. Instead, however, the Service advises that letter-series stamps have not been considered 16 Applicability o f 18 U.S.C. § 1721 to Collection o f Fee fo r Stamped Cards problematic under § 1721,8 and Congress has not precluded the issuance of such letter-series stamps despite ample time within which to do so. This longstanding administrative practice with respect to postage stamps comports with our conclu­ sion that the plain terms of the criminal prohibition do not require that the Service indicate the sale price of the postal cards on their faces. We find additional support for our conclusion in the fact that § 1721 explicitly permits the sale of stamped envelopes at prices not indicated on their faces. The provision regarding stamped envelopes suggests that the criminal prohibition set forth in § 1721, when considered as a whole, was not intended to embody a gen­ eral policy that the price of a postal item must be indicated on the face of the item. Such a policy, after all, would be inconsistent with the provision regarding stamped envelopes. As a result, the overall structure of the statutory criminal prohibition does not provide clear support for a conclusion that the plain terms of the face-sale provision should be construed to include, even if only implicitly, a requirement that the value of a postal card be indicated on its face. Even though we do not believe that § 1721 precludes the sale of postal cards for an authorized amount not indicated on their faces, we are still left to consider the second question: whether postal cards must be sold at the price of the postage indicated whenever a postage amount is indicated on the faces of the cards. Here, the Service proposes to sell postal cards not only for an amount, twenty one cents, that would not appear on the faces of the cards, but also for an amount that would be greater than the only monetary value, twenty-cents, that would appear on the faces of the postal cards — namely, the amount of the postage price marked on the postage stamp. If § 1721 is properly construed so that such a monetary amount necessarily “ indicates” the “ value” of the card itself, then § 1721 arguably would appear, by its terms, to bar the proposed sales arrangement. If the provision may be construed so that such a monetary amount may be understood to “ indicate” only the value of the postage, however, then the Service’s sale for twenty-one cents of a card stamped with a twenty-cents postage mark would not contravene the express terms of the criminal prohibition. Under such a construction, the Serv­ ice’s sale for twenty-one cents of a postal card stamped with a twenty-cents post­ age mark would not be for a sum greater than the “ value indicated” on the card’s face because the card’s face would indicate only the value of the postage and not the value o f the card itself. In our view, the plain text of § 1721 does not require the conclusion that the amount of postage that appears on a postal card necessarily constitutes the “ value indicated” of a postal card, even when there is no express countervailing indica­ tion of the postal card’s value on the face of such a postal card. The statutory text does not reveal, by its terms, the circumstances in which the face of a postal card may be said to have indicated the value of the postal card as opposed to 8 T elephone conversation betw een G eorge S m ith, A ttorney-A dvisor, O ffice o f Legal C o u n sel, an d A nthony A lvem o, A ttorney, N ational Litigation Section, U nited States Postal S ervice (D ec. 22, 1998). 17 Opinions o f the Office o f Legal Counsel in Volume 23 merely the value of the postage stamp that appears on the face of the postal card. The statutory text states only that a sale of a postal card may not be for a sum greater or lesser than the “ value indicated” on the face of a postal card. As to whether the appearance of the monetary amount of a postal stamp on a postal card, without more, necessarily indicates the value of the postal card within the meaning o f § 1721, the statutory text is silent. The Service’s last regulation that defined the term “ postal cards” accords with a construction of the criminal prohibition in which the postage stamp that appears on the face of a postal card need not be understood to reflect the full value of the card itself. The regulation defined a postal card as follows: “ A postal card is a card with postage imprinted o r impressed on it and supplied by the Postal Service for the transmission of messages.” 39 C.F.R., pt. 3001, subpt. C, appx. A, 222.11 (1996).9 That definition suggests that the postal card is a distinct postal item from the postage that is impressed upon it, a suggestion that accords with the conclusion that the postage stamp that appears on the face of a postal card does not necessarily indicate the value of the card. The statutory prohibition on the sale of postal cards for a value greater than the “ value indicated” on the face o f the card would appear to be at least ambiguous, therefore, as to whether the textual phrase “ value indicated on its face” refers only to the authorized sales price of the card in those cases in which such a value has been indicated on the face o f the card, or whether that phrase is instead intended to refer to the sole monetary amount that appears on the face o f the card even though the Service has concluded that such an amount actually refers only to the postage price. The intervenors reject the notion that § 1721 may be read to be ambiguous on this point. Their plain meaning argument against the Service’s proposed sales arrangement hinges largely on the contrast in the language that § 1721 employs with respect to postal cards as compared to stamped envelopes. The intervenors contend that because § 1721 refers to the value indicated on the face of postal cards, but not stamped envelopes, it is clear that § 1721 imposes an additional limitation regarding the manner o f the sale o f postal cards — namely, that they may not be sold for a monetary amount greater than the sole monetary amount that appears on their face, which, in the case before us, is the amount of postage that is stamped on the cards. A review of the historical background to the current version of the criminal prohibition set forth in § 1721 demonstrates, however, that it is far from clear that the differing language in § 1721 on which the intervenors rely supports their plain meaning argument. At the time that Congress first enacted the criminal prohibition subsequently codified, without material alteration, as 18 U.S.C. § 1721, see Revised Statutes of the United States, 1873-1874, §3920, at 762 (1878) 9 T h is reg u latio n w as am en d ed through su bsequent regulation in 1996 so th at the term “ stam ped ca rd ” replaced th e te rm “ postal card ” S e e A m endm ent to D o m estic M ail C lassificatio n S chedule, 61 F ed Reg. 32,656, 32,662 (1996). 18 Applicability o f 18 U.S.C. § 1721 to Collection o f Fee fo r Stamped Cards (“ Revised Statutes” ), as amended by Act of June 17, 1878, ch. 259, 20 Stat. 140, 141, it had statutorily established a single “ postage charge” for postal cards of “ one cent each, including the cost of their manufacture.” See Act of June 8, 1872, ch. 335, § 170, 17 Stat. 283, 304. Congress had in this way set the postal card fee at a monetary amount that reflected both the cost of postage and the cost of manufacture. There was therefore no deviation between the postal charge and the value of the postal card at that time because Congress, in one legislative act, had established the value of the postal card to be the equivalent of the postal charge. Indeed, Congress did not even authorize the use of private post cards until 1898, well after it had enacted the face-sale provision of the criminal prohibi­ tion now codified in § 1721. Act of May 19, 1898, ch. 347, 30 Stat. 419. Thus, at the time Congress enacted the face-sale provision, there was no market, as there is today, for post cards that could be purchased for a fee separate from the costs of their postage stamps. In contrast to its treatment of postal cards, Congress, at the time of the first enactment o f the face-sale provision, had not established a similarly uniform, fixed statutory value for stamped envelopes. Indeed, it could not have because stamped envelopes were used to mail a wide variety of materials, including newspapers, of varying sizes, and thus no single cost could be affixed due to variations in both the applicable postage rates and the costs of producing differing types of envelopes. See 25 Op. Att’y Gen. 354, 359-60 (1905). Congress had instead pro­ vided by statute that the Postmaster General shall provide stamped envelopes and that such stamped envelopes “ shall be sold, as nearly as may be, at the cost of procuring them, with the addition o f the value o f the postage stamps impressed thereon.” See Revised Statutes, §3915, at 761 (emphasis added). This framework meant that the face of a stamped envelope did not set forth the value of the envelope — it set forth only the value of the postage stamp that was impressed on the envelope. Accordingly, the statutory prohibition regarding the manner of the sale of stamped envelopes did not refer to the face value of the envelope but provided instead that such an envelope could not be sold or disposed of “ for a larger or less sum than is charged therefor by the Post-Office Department for like quantities[.]” Act of June 17, 1878, 20 Stat. at 141; see Revised Statutes, § 3920, at 762. This statutory restriction served to ensure that the sale of stamped envelopes conformed to the authorized, albeit variable, fee for their purchase. These historical facts regarding the state of nineteenth century postal law make it difficult to conclude that Congress clearly employed the differing language con­ cerning stamped envelopes that appears in § 1721 in order to ensure that the face value of the postage stamp that appears on a postal card would necessarily indicate the value of the postal card itself. The historical context instead may be read to suggest that the face-sale provision was intended to ensure that postal cards, like stamped envelopes, were sold for a price authorized by Congress. The statu­ tory reference to the face value of postal cards, but not the face value of stamped 19 Opinions o f the Office o f Legal Counsel in Volume 23 envelopes, may merely have been reflective of the fact that, at the time that Con­ gress first enacted the criminal prohibition now in question, the face of postal cards set forth their legally established value while the face of stamped envelopes did not. It is not at all clear, therefore, that the criminal prohibition should be construed to preclude a proposed sales arrangement of the type at issue here. Under the Service’s proposed sales arrangement, stamped cards would be per­ mitted to be sold only for a price that, although greater than the price of postage that appears on their faces, would nevertheless conform to the fee that has been established by the administrative agency that Congress has authorized to set such fees. In light o f the ambiguity as to the inference that should be drawn from the differing statutory treatment of stamped envelopes and postal cards, we do not believe that § 1721 should be construed to bar the Service’s proposed sales arrangement. Such a construction would serve to restrict the ability of the Service to adopt a method for the implementation of a fee change that appears to serve the broad purposes of the PRA. Congressional intent is better served by construing the ambiguity on this point in a manner that preserves the substantial discretion that the PRA appears to have been intended to confer upon the Service. For that reason, we conclude that § 1721 does not bar the Service from determining that the postal mark on a pre-stamped card indicates the value of the postage alone, not the value of the postal card, and thus from selling stamped cards bearing twenty-cents stamps for twenty-one cents. D. A review of the legislative history to § 1721 accords with our conclusion that the face-sale provision should be construed to afford the Service the discretion to permit the sale of a postal card for an amount that reflects its authorized value even though it exceeds the amount of postage that appears on its face. It is evident from the legislative history that § 1721 was primarily intended to deter, prohibit, and punish fraudulent and unauthorized practices by postal employees in the pricing and sale of stamps, postcards, and other postal items. That general purpose accords with a construction of the terms of § 1721 that would permit the Service to offer a postal card for sale only at a price that had been fixed by regulation, even though it may be greater than the amount of postage that appears on its face. That is not to dispute that a broad requirement that, in the absence of a counter­ vailing indication on the face o f a postal item, a postal item may not be sold for a price greater than the postage stamp would also protect against fraudulent sales practices. Such a requirement would arguably make it more difficult for postal employees to sell postal items for unauthorized prices because consumers would need only to consult the face of the postal item to determine the authorized 20 Applicability o f 18 U.S.C. §1721 to Collection o f Fee fo r Stamped Cards price. In that sense, the general anti-fraud purpose of the criminal prohibition arguably would be furthered by the intervenors’ proposed construction of § 1721. Nevertheless, the pertinent legislative history of § 1721 demonstrates that the predominant purpose of that provision, together with several others enacted or considered with it, was to prevent postmasters and other postal employees from engaging in fraudulent or other unauthorized practices in the sale of stamps, post­ cards, and related postal items.10 The legislative history at no point states that the statute was intended to protect against fraudulent practices through the imposi­ tion of a broad prophylactic rule that would preclude the sale of postal cards for an amount greater than the stamped postage in circumstances when no other monetary amount would appear on their faces. The House debate on these measures tersely expressed the main purpose of the reforms under consideration: “ The question and the only question for the com­ mittee to determine is which is the better proposition for the protection of the Government to prevent dishonest men from swindling the Government.” 7 Cong. Rec. 2680 (1878) (remarks of Rep. Hewitt). During the debate on related provi­ sions in the bill aimed at postmaster abuses, Representative Hewitt described the practices underlying the face value sale provision that was included in the bill under consideration and enacted in language essentially similar to that of § 1721: In the law as it now stands, as I said a moment ago, there is no prohibition of a postmaster selling stamps to whom he pleases and where he pleases. There is no provision in the law that prohibits him from trading them for goods or paying his debts with them — I mean in the present law as it now stands. And it was under that law this abuse had grown up, and just because the law did not prohibit i t . . . . But now the Committee on Appropriations have reported a bill here which . . . absolutely prohibits the sale of stamps for less than their face value . . . . This bill not only prohibits that, but it pro­ hibits postmasters from trading in stamps for goods, from using them in buying goods, or paying their debts with them; and it affixes a severe penalty for the violation of the law. 7 Cong. Rec. at 2679. Later, defending the bill reported by the Appropriations Committee (which included the predecessor version of § 1721) against an amendment designed to increase the percentages of postal revenues payable to postmasters as compensa­ tion, Rep. Blount stated: “ The proposition of the Committee on Appropriations l0 T he predecessor version o f § 1721 and the related postal reform m easures w ere co nsidered as part o f th e Post O ffice A ppropriation Bill for the F iscal Y ear Ending June 30, 1879, H .R 424 6 , 45 th C ong. (1878). S e e 7 C ong R ec. 2 4 7 6 and passim (1878). 21 Opinions o f the Office o f Legal Counsel in Volume 23 is not to change the law as to the percentage that the postmasters are paid, but it is simply to adopt another method to ascertain what they are paid. It is simply an effort to avoid fraud; that and nothing m ore." Id. at 2681 (emphasis added). Describing the Post Office Department’s position on the pending sale and com­ pensation provisions, Rep. Blount further stated: “ The proposition now from the Department is not to decrease by this legislation the amount of [the postmasters’] salary, but to protect the Government against fraud.” Id. As Rep. Blount pro­ ceeded to describe his own general approach to the bill: “ [A]s a Representative upon this floor, bound to protect the Government, I shall not hesitate to provide proper legislation against fraud, even if some over-sensitive postmasters should imagine there is some reflection upon their integrity.” Id. Authoritative statements accompanying the passage of subsequent amendments and revisions of § 1721 further confirm the intent indicated in the original debate. Thus, when Congress modified and recodified the statute in 1909, ch. 321, see Act of March 4, 1909, § 208, 35 Stat. 1088, 1128, the accompanying legislative history characterized it as follows: “ This section, like section 207, is designed to punish certain acts the effect o f which is to defraud the postal revenue or to misappropriate the postal funds, and by means of the acts forbidden to fraudulently increase the compensation of postmasters and employees.” S. Rep. No. 60-10, pt. 1, at 22 (1908). Similarly, the legislative history of the 1956 amendments to the statute, see Act of Aug. 1, 1956, ch. 818, 70 Stat. 784, again explained that the purpose of the provision was to prohibit postal employees from “ so disposing of stamps, stamped envelopes, or postal cards as to inflate receipts artificially.” S. Rep. No. 84—2720, at 1 (1956), reprinted in 1956 U.S.C.C.A.N. 3814, 3814. In describing the effect of the 1956 amendments, the accompanying House Report explained that they were designed to broaden the class of postal employees who are prohibited by existing law from inducing or attempting to induce any person to purchase postage stamps, stamped envelopes, or postal cards for the purpose of increasing the emoluments or compensation of the postmaster or any employee of any post office or any station or branch thereof. H.R. Rep. No. 84-555, at 1 (1955). The review of the legislative history that is set forth above reveals that there are no statements that directly speak to the issue that is before us in this matter. Only by drawing a questionable inference from the general anti-fraud statements that appear in the legislative history, therefore, could one conclude that Congress intended for § 1721 to establish a broad prophylactic rule against a sales arrange­ ment of the type that the Service has proposed here. The broad nature of the administrative discretion that the PRA appears to confer upon the Service to make 22 Applicability o f 18 U.S.C. § 172 J to Collection o f Fee fo r Stamped Cards and implement fee changes, however, counsels against the drawing of such an inference. The general anti-fraud statements that appear in the legislative history simply do not suffice to justify the conclusion that § 1721 should be construed to preclude the Service from exercising its broad administrative discretion in the manner that it proposes here. Accordingly, we conclude that the legislative history accords with our construction of the plain terms of § 1721. E. We note one final point. Intervenors contend that their construction of § 1721 is supported by an early opinion of the Attorney General. That opinion asserted that the prohibition against postal sales at less than face value contained in a late nineteenth century version of §1721, see Revised Statutes, §3920, at 762; 20 Stat. at 141, extended to the Post Office Department and the Postmaster-General as well as to postmasters and other postal employees. See 25 Op. Att’y Gen. at 360. In that opinion, the Attorney General concluded that the Postmaster Gen­ eral lacked authority to approve a “ Retum-Postage” scheme proposed by a private contractor which would have relieved advertisers from paying postage on pre­ addressed return cards and envelopes until they were actually deposited in the mails and reached the designated return address preprinted on the card. Among other things, the Attorney General determined that such an arrangement would “ violate the spirit and also the letter” of numerous provisions of the postal laws, including the version of § 1721 then in effect. In referring to that provision, the Attorney General stated that "[tjhe Postmaster-General is clearly within the inhibition. Indeed, to rule otherwise would be to do violence to the plain and expressed intent of Congress.” Id. After further noting that the proposal would allow the contractor to make its initial purchase of the return postal cards and stamped envelopes at a price far below that paid by the general public (reflecting the fact that the postage component would not be paid until the stamped card or envelope was actually returned and delivered), the Attorney General stated: I am unable to reconcile such a transaction with the plain and explicit injunction of Congress that ‘no stamped envelopes shall be sold by the Post Office Department at less (in addition to legal postage) than the cost, including all salaries, clerk hire, and other expenses connected therewith,’ ‘or sell or dispose of postal cards for any larger or less sum than the values indicated on their faces.’ Id. We do not find the reasoning of this opinion pertinent when applied to the matter presented here. Most significantly, the Postmaster-General in 1905 did not possess the broad statutory authority to change postage rates and fees that is vested 23 Opinions o f the Office o f Legal Counsel in Volume 23 in the Service today pursuant to the PRA. See 39 U.S.C. §403 (1994); id. §404, as amended by PESEA, §3, 112 Stat. at 1572; id. §§3621-3625, as amended by PESEA, § 5, 112 Stat. at 1573. That is why the Attorney General’s 1905 opinion stressed that the return postage scheme under consideration there could “ not be put into operation without the express authority of Congress,” 25 Op. Att’y Gen. at 357, or “ without additional legislation.” Id. at 366. In contrast, changes in postage rates and fees may be adopted today by the Service (with the Commission’s concurrence) through administrative action alone pursuant to the procedures of the PRA. Passage of legislation by Congress is no longer required. The legal and regulatory framework on which the Attorney General’s 1905 opinion was premised has been fundamentally altered by the intervening enactment o f the PRA. Specifically, the Service is now authorized to impose a fee applicable to stamped cards, to prescribe the manner in which it is to be paid, and to promulgate a regulation providing for the collection of that fee. Thus, while the criminal prohibition may have been relevant to the Attorney General’s late nineteenth century determination o f whether the Postmaster General possessed statutory authority to enter into a contract to sell postal cards at a rate lower than that which had been authorized by Congress, it has no relevance to the present determination o f how the Service may implement a change in postal fees that Congress has authorized. BETH NOLAN Deputy Assistant Attorney General Office o f Legal Counsel 24

Write a legal research memo on the following topic.

Authority of the State Department Office of Security to Investigate Passport and Visa Fraud Section 209 o f the Foreign Service Act o f 1980 did not confer on the Inspector General o f the Departm ent o f State the authority to investigate passport and visa fraud by persons uncon­ nected with the Department o f State, and, accordingly, did not limit any inherent or derivative authority the Secretary of State might have to investigate such fraud. Special Agents assigned to the Office o f Security of the Department o f State may conduct consensual questioning o f individuals and may request that an individual consent to being questioned elsewhere, provided that a reasonable person would understand that compliance with such a request is voluntary. August 17, 1984 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 L e g a l A d v i s e r , D e pa r t m e n t o f Sta t e This responds to your request for our opinion on the following questions: 1. Whether the Secretary’s derivative authority to conduct investigations which might lead to criminal prosecution (using Special Agents not assigned to the Inspector General’s Office) is in any way limited by the express statutory authority of the Inspector General of the Department of State to conduct similar investigations. 2. If any such limitations are present, what restrictions apply to the Secretary’s independent authority to investigate visa and passport fraud through the Office of Security? 3. Whether, and subject to what limitations, if any, Special Agents assigned to the Office of Security have legal authority to approach an individual suspected of engaging in visa or passport fraud and, after presenting their credentials, either request that the individual answer questions on the spot or accompany them to another location for questioning. I. Background The first question poses a very broad issue regarding congressional intent in passing the Foreign Service Act of 1980, 22 U.S.C. § 3929 (FSA). Rather than 175 address in a factual vacuum the many hypothetical instances in which the relationship of the Inspector General’s authority to that of the Secretary might be examined, we believe that it is more appropriate to confine our examination to the specific factual situation described in your letter. Viewed in this light, your first and second questions merge into a single question: whether the powers conferred upon the Inspector General by § 209 of the FSA in any way limit whatever “inherent authority” the Secretary may have to investigate passport and visa fraud. We understand the term “passport and visa fraud” to refer to criminal deceit in passport or visa acquisition by persons other than Department of State employees. In contrast, the term “passport and visa mal­ feasance” describes malfeasance or criminal activity on the part of Department of State employees in obtaining passports or visas for themselves or others. The relevant criminal prohibitions appear to reflect a similar distinction. Compare 18 U.S.C. §§ 1542-1546 (fraud and misuse of passports and visas) with id. § 1541 (unauthorized issuance). In addressing your question, we have not attempted to analyze the source, validity, or independent scope of the Secretary’s asserted authority to investigate passport and visa fraud. Rather, in accord with your request, we have focused our inquiry upon the effect that § 209 has on whatever authority the Secretary may possess in this area.1 II. Analysis A. The Foreign Service Act o f 1980 We begin our analysis of the question whether the Inspector General pos­ sesses investigative authority in the area of passport and visa fraud by examin­ ing the FSA itself. Section 209 of the FSA, which established the Office of Inspector General of the Foreign Service, centralized primary responsibility in the Department of State’s Inspector General for “audit” and “investigative” activities of the Department. E.g., H.R. Rep. No. 992, 96th Cong., 2d Sess. (Part 1) 23 (1980). The FSA charged the Inspector General with responsibility for examining: (1) whether financial transactions and accounts are properly conducted, maintained, and reported; (2) whether resources are being used and managed with the maximum degree of efficiency, effectiveness, and economy; 1 As a general rule, o f course, violations o f Title 18 o f the U nited States C ode are statutorily com m itted to the investigative ju risd ic tio n o f the A ttorney G eneral. See 28 U .S.C § 533(1) (A ttorney G eneral may appoint officials to d etect crim es against United S tates); id. § 533(3) (other investigations regarding official matters under the control o f D epartm ent of Justice and D epartm ent o f State as may be directed by the Attorney G eneral). O th er departm ents and agencies m ay investigate federal crim es only “when investigative jurisdic­ tion has been assigned by law to such departm ents and agencies.” Id. § 533. In our view, 28 U.S.C. § 533 establishes that C ongress cannot be deem ed to have intended to confer investigative authority other than by an exp ress provision to that effect in a statute. We exam ine the FSA, therefore, in order to determ ine whether C ongress therein co n ferred authority upon th e Inspector G eneral to investigate the federal crim es o f passport and visa fraud. 176 (3) whether the administration of activities and operations meets the requirements of applicable laws and regulations and, specifically, whether such administration is consistent with the requirements of section 3905 of this title [the provision govern­ ing personnel practices]; (4) whether there exist instances o f fraud or other serious problems, abuses, or deficiencies and whether adequate steps for detection, correction, and prevention have been taken; and (5) whether policy goals and objectives are being effectively achieved and whether the interests of the United States are being accurately and effectively represented. 22 U.S.C. § 3929(b) (emphasis added). The FSA explicitly incorporated that portion of the Inspector General Act of 1978, Pub. L. No. 95-452, 92 Stat. 1101 (1978 Act), which grants Inspectors General of various agencies certain powers to carry out their statutory duties: (1) to have access to records, reports and other materials; (2) to make investiga­ tions and reports; (3) to request assistance from other government agencies; (4) to subpoena documents, except from Federal agencies; (5) to have access to the agency head; (6) to appoint employees; (7) to obtain expert and consultant services; and (8) to enter into contracts. 22 U.S.C. § 3929(e)(1); see 5 U.S.C. app. § 6(a) (Inspector General Act of 1978). In addition to those powers, the Inspector General of the Foreign Service also has authority to request that Department of State employees be assigned to him, provided that all individu­ als so assigned, as well as those appointed under item (6) above, “be respon­ sible solely to the Inspector General.” 22 U.S.C. § 3929(e)(2). B. Inspector G eneral’s Authority to Investigate Passport and Visa Fraud On its face, the FSA confers some type of investigative authority on the Inspector General of the Foreign Service. What remains to be determined is whether that authority encompasses the investigation of passport and visa fraud. Although one of the Inspector General’s primary responsibilities is to conduct “investigations,” that term is not defined in the FSA. Most signifi­ cantly for our purposes, the language of the FSA does not expressly indicate whether the investigative authority which it conferred was limited to cases of malfeasance committed by Department employees or whether that authority also extended to crimes committed by non-employees. In seeking to resolve this issue, we have identified several passages from the legislative history of the FSA which are of assistance in determining Congress’ intent. In addition, we have examined the legislative history of the 1978 Act, after which the office of Inspector General of the Foreign Service was “patterned.” See H.R. Rep. No. 992 (Part 2), 96th Cong., 2d Sess. 22 (1980). The incorporation of part of the 1978 Act into the FSA renders that part of the 1978 Act and its history an 177 appropriate source of further guidance in interpreting the FSA. See Engel v. Davenport, 271 U.S. 33, 38 (1926) (adoption of earlier statute by reference makes it fully a part of later statute); 2A Sutherland Statutory Construction §51.08 (Sands 4th ed. 1973). The bill considered by the Senate Committee that reported the 1978 Act defined “investigation” to include “inquiries and examinations made to detect, or in response to allegations of, irregularities or violations of law, including misconduct, malfeasance, misfeasance, nonfeasance, fraud, or criminal activ­ ity on the part of any employee, person, or firm directly or indirectly connected with the establishment, or operations financed by the establishment.” E.g., H.R. 8588, §11, 95th Cong., 2d Sess. (1978). This definition was later deleted from the bill before passage, not because it was inaccurate, but because “ ‘investigation’ is a term with a generally well understood meaning.” 124 Cong. Rec. 30954 (1978) (statement of Sen. Eagleton). It is apparent that the deletion was effected solely to remove surplus language, so that the deleted definition can be appropriately used as a guide to determine the scope of the authority that Congress intended to confer upon Inspectors General in the 1978 Act, and, by incorporation, upon the Inspector General of the Foreign Service in the FSA. See Diamond Crystal Salt Co. v. P. J. Ritter Co., 419 F.2d 147,148 (1st Cir. 1969) (rule inferring legislature’s disapproval of provision deleted from bill does not apply when omitted provision would have been surplusage). Although the language of the definition is ambiguous in some respects, to the extent that it requires a connection between the person committing the miscon­ duct and the Department, it strongly suggests that Congress intended that the focus of the Inspector General’s authority be on the conduct of Department employees or contractors as opposed to the conduct of outside persons who may have occasion to deal with the Department. Thus, this definition suggests that Congress intended to authorize the Inspector General to investigate only passport and visa “malfeasance,” as opposed to passport and visa “fraud.” This suggestion is borne out by several aspects of the legislative history of the FSA. Although none alone is dispositive, the several statements in combi­ nation provide a persuasive indication that the Inspector General’s powers were directed at the internal conduct of the Department and the Foreign Service. First, the House Committee on Post Office and Civil Service ex­ plained that Chapter 2, in which § 209 is found, “deals with the management of the Foreign Service generally .. . . ” E.g., H.R. Rep. No. 992, 96th Cong., 2d Sess. (Part 2) 22 (1980). That report further declared that a purpose of estab­ lishing the office of Inspector General would be to “provide leadership and coordination and recommend policies for activities designed to promote effi­ ciency and to prevent and detect fraud and abuse in such programs and operations.” Id. (emphasis added). That Committee, therefore, also appears to have contemplated that the Inspector General would confine his investigative activities to the administration of operations as conducted by the Department of State. The House Committee on Foreign Affairs reported that the objectives to be met by the Inspector General “include systematic examinations of whether 178 financial transactions are properly conducted, whether resources are being used efficiently, whether requirements of law are being met (including the antidis­ crimination and antireprisal provisions of section 105 of this bill), and whether there are instances of fraud or other irregularities.” E.g., H.R. Rep. No. 992, 96th Cong., 2d Sess. (Part 1) 23 (1980). The phrasing of this list of objectives places an emphasis on employee behavior. For example, the Committee’s parenthetical elaboration of its term “requirements of law,” which refers to § 105 of the bill, specifies laws applicable solely to Department employees. Further, the reference to “fraud or other irregularities” suggests that the fraud mentioned is a species of a broader class of “irregularities” — a term which, by referring to departure from established norms, connotes derelictions of official duty, rather than deceit worked upon Department officials by non-employees. This Committee, therefore, evidently understood the grant of authority to apply to the investigation of acts committed by employees of the Department of State. Finally, § 209 empowers the Inspector General to “receive and investigate complaints or information from a member o f the Service or employee o f the Department concerning the possible existence of an activity constituting a violation of laws or regulations, constituting mismanagement, gross waste of funds, or abuse of authority, or constituting a substantial and specific danger to public health or safety.” 22 U.S.C. § 3929(f) (emphasis added). Of the enumer­ ated derelictions, only the first is capable of general applicability outside the Department. Its context, however, suggests that its purpose, once again, was to facilitate investigations of employees. The articulation of this complementary power in terms of complaints of employees is further evidence that Congress was conferring authority over intra-departmental malfeasance, to which em­ ployees would be the most likely witnesses. In light of these considerations and evaluated against the general rule that the Attorney General will investigate violations of Title 18 in the absence of a statute expressly delegating authority to another department, see supra note 1, we believe that Congress should not be regarded as having conferred on the Inspector General, in the FSA, the authority to investigate passport and visa fraud that is, fraud committed in passport application or use by persons not connected with the Department of State. Far from constituting an express delegation of such investigative authority, § 209 and its legislative history persuasively suggest that the power to investigate passport and visa fraud was not embraced at all by the statutory grant. It follows that if the Secretary has some derivative source of authority to investigate passport and visa fraud, then that authority was not supplanted, transferred, or limited by the FSA.2 2 W e have exam ined only the statutory grant o f investigative authority to the Inspector General and, therefore, express no view on the existence o r scope o f independent investigative authority in the Secretary with regard to either “fraud” o r “m alfeasance.’* W e do note, how ever, that if there w ere som e overlap o f authority betw een the Inspector G eneral and the Secretary in the area o f passport or visa m alfeasance, the Secretary would not necessarily be ousted o f all such pow er by the FSA. As this O ffice previously stated generally with respect to the 1978 Inspector G eneral Act, “there is no indication in the A ct that C ongress intended th e agency head to perform [his supervisory] functions at all times through the Inspector G eneral.” Continued 179 C. A uthority o f Special Agents Your inquiry whether Special Agents may conduct questioning and request that an individual accompany them to another spot raises two issues: whether the Office of Security has any authority to investigate passport and visa fraud and whether the type of confrontation described in your letter falls within the scope of that authority. Any authority possessed by the Office of Security is derived either from the Inspector General or from the Secretary, as there does not, to our knowledge, exist any independent grant to that Office concerning passport and visa fraud. We have concluded above that the Inspector General does not have authority under the FSA to conduct investigations of passport and visa fraud. Thus, any investigative authority possessed by the Office of Security in this area must flow from the Secretary. Further, the FSA prohibits the Inspector General’s subordinates from serving two masters by providing that both the employees appointed by the Inspector General and the employees of the Department of State assigned to the Inspector General are to be respon­ sible “solely” to the Inspector General. 22 U.S.C. § 3929(e)(2). This require­ ment was intentionally imposed to establish an Inspector General staff inde­ pendent of the Secretary. See S. Rep. No. 913, 96th Cong., 2d Sess. 26 (1980). Consequently, Special Agents of the Office of Security assigned to the Inspec­ tor General, like the Inspector General himself, would possess no authority to investigate passport and visa fraud. Special Agents not so assigned, and thus responsible to the Secretary, would be able to implement whatever investiga­ tive authority the Secretary possesses. The second issue raised by this particular inquiry involves the contours of permissible investigative activities. We address this question on the assump­ tion that some derivative authority to investigate passport and visa fraud resides in the Secretary and is validly delegated to the Office of Security. Authority to investigate, however, even if granted expressly by statute, would not automatically confer other specific law enforcement powers. Postal inspec­ tors, for example, were held not to derive powers of arrest from the Post Office Department’s general statutory authority to investigate postal offenses. Alexander v. United States, 390 F.2d 101, 105 (5th Cir. 1968). Similarly, the Attorney General’s authority to appoint “investigative officials” under 28 U.S.C. § 533 was understood by the Attorney General and the Congress as not sufficient to give FBI agents the power to make arrests or carry firearms, prompting Con­ gress to provide for such powers explicitly fifteen years later. E.g., H.R. Rep. No. 1824, 73d Cong., 2d Sess. 1-2 (1934); see Act of June 18, 1934, Pub. L. No. 73-402, 48 Stat. 1008. 2 (. . . continued) L etter to G eneral C ounsel, General Services A dm inistration from Ralph W. Tarr, D eputy Assistant Attorney G eneral, O ffice o f Legal Counsel (Mar. 2 4 , 1983). Any lim its on the S ecretary’s existing pow er to investigate m alfeasance that m ight be inferred from th e FSA would h ave to be determ ined on the facts and circum stances involved in a p articu lar class o f investigations. The questions raised in your letter do not appear to us to require an analysis o f the Secretary’s investigative ju risd ictio n over em ployee malfeasance. 180 It is well established that the authority to exercise law enforcement powers must be conferred expressly by statute. In the absence of a federal statute, federal officers have the powers of arrest conferred by the law of the State in which the arrest occurs. M iller v. United States, 357 U.S. 301, 305 (1958); United States v. Di Re, 332 U.S. 581, 589 (1948). If state law makes no provision for arrests by federal officers, they have only the authority of a private citizen. Coplon v. United States, 191 F.2d 749, 753 (D.C. Cir. 1951); accord United States v. Chapman, 420 F.2d 925,926 (5th Cir. 1969). It is clear that the Special Agents of the Office of Security have the statutory power to arrest only in their capacity as protectors of certain statutorily specified per­ sons. 22 U.S.C. §§ 2666-2667 (heads of foreign states, official representatives of foreign governments, the Secretary of State, the Deputy Secretary of State, official representatives of the U.S. Government, and families thereof). If an interrogation such as you have described, not involving this protective role, constitutes an arrest, therefore, a Special Agent would not have the authority to conduct it under a general grant of investigative jurisdiction. There are limits that an investigation may not exceed without acquiring the attributes of an arrest. “In the name of investigating a person who is no more than suspected of criminal activity, the police may n o t . . . seek to verify their suspicions by means that approach the conditions of arrest.” Florida v. Royer, 460 U.S. 497, 499 (1983) (plurality opinion). In attempting to determine whether particular conduct crosses the line between investigative questioning and arrest, courts generally look at all of the circumstances and the context in which the issue has arisen. See United States v. Mendenhall, 446 U.S. 544,554 (1980) (opinion of Stewart, J.). Addressing a tort claim of false imprisonment, for example, one court found that no arrest had occurred when an agent touched the plaintiffs arm and encouraged him to head toward an office for question­ ing. The court reasoned that the plaintiff was subject neither to custody nor to control, nor was he constrained by the authority or official capacity of the agents. Belcher v. United States, 511 F. Supp. 476, 483 (E.D. Pa. 1981). Cases decided on the basis of the Fourth Amendment to the Constitution provide the richest source of judicial analysis of the point at which an arrest occurs. “A person is not arrested or seized under the Fourth Amendment if he is free to choose whether to enter or continue an encounter with police and elects to do so.” United States v. Brunson, 549 F.2d 348, 357 (5th Cir.), cert, denied, 434 U.S. 842 (1977). Generally, the inquiry involves an objective test of whether the average, reasonable person would have thought that he had been arrested. United States v. Scheiblauer, 472 F.2d 297, 301 (9th Cir. 1973); Coates v. United States, 413 F.2d 371, 373 (D.C. Cir. 1969). Thus, if Special Agents ask an individual to accompany them for the purpose of answering some questions and tell the subject that he is not under arrest and that he is free to leave, he will be deemed to have consented to the questioning and not arrested. United States v. Vita, 294 F.2d 524, 528 (2d Cir. 1961). Although the above principles have been developed for purposes of deter­ mining such matters as the legality of detention, searches, and seizure of 181 evidence, they also furnish a benchmark from which to measure the limits of activities that fall within the general purview of “investigation.” On the basis of our research, we believe that consensual questioning is within a grant of investigative authority. Whether such questioning is consensual will depend upon whether the subject believes that he is free to refuse to answer questions in any location and, therefore, that he is not in custody. It would be helpful in this regard if the credentials that Special Agents display before initiating questioning were revised to reveal these limitations on the authority of the investigating officers and if the agents informed their subjects of these limitations. Conclusion Without analyzing the source, validity, or scope of the authority of the Secretary of State to conduct investigations of passport and visa fraud, we have concluded that the FSA does not change the scope of that claimed authority. The FSA does not confer upon the Inspector General of the Foreign Service express power to investigate passport and visa fraud, and consequently does not withdraw from the Secretary any residual powers he may have over such investigations. We have not attempted to resolve what those residual powers may include. When acting under investigative authority delegated by the Secretary. Special Agents may conduct consensual questioning of individuals and may request that an individual consent to being questioned elsewhere, provided that a reasonable person would understand that compliance with such a request is voluntary.3 L a r r y L. S im m s Deputy Assistant Attorney General Office o f Legal Counsel 3 N O TE: A fter this opinion was issued by the O ffice o f Legal C ounsel, (1) the Inspector G eneral Act of 1978 w as am ended to include the In sp ecto r G eneral o f the D epartm ent o f State, see Pub. L. No. 99-93, § 150(a), 99 Stat. 405, 427 (1985), and (2 ) Special A gents o f the D epartm ent of State were granted specific statutory authority to investigate and m ake arrests with respect to illegal visa and passport issuance, see id. § 125(a), 99 Stat. at 4 1 5 -1 6 (codified at 2 2 U.S.C. § 2709(a)(1)). 182

Write a legal research memo on the following topic.

Representation of Government Employees in Cases Where Their Interests Diverge from Those of the United States T h e A tto rn e y G e n e ra l is a u th o riz e d to rep re sen t th e personal interests o f g o v e rn m e n t em p lo y ees sued in th e ir official cap ac ities if it w ill se rv e th e interests o f th e U nited S tates. E v e n if a d e q u a te rep re sen tatio n o f an e m p lo y e e ’s personal interests in a law suit requires th e m ak in g o f an a rg u m e n t th at c o n flic ts w ith a g o v e rn m e n ta l position, such re p re se n ­ tatio n m ay still se rv e th e in terests o f th e U n ited S tates. W h ere th e p erso n al in terests U n ited S tates, as w o u ld be su p p o rt a claim against th e G e n e ra l e ith e r to rep re sen t counsel. o f e m p lo y ee-d efen d an ts co n flict w ith th e interests o f the th e case if th e y w e re to a d v a n c e an arg u m en t th at w ould U n ited S tates, it w o u ld be in a p p ro p ria te for th e A tto rn e y them d ire c tly o r to finance th eir rep re sen tatio n by p riv ate If th e p erso n al in terests o f e m p lo y e e -d e fe n d a n ts p o ten tially co n flict w ith th e in terests o f th e U n ited S tates, th e A tto rn e y G e n e ra l m ay still rep re sen t them , if th e y w ish him to d o so, w ith o u t im p licatin g th e eth ic a l ru le against rep re sen tin g d ifferin g interests o f m u ltip le clients. March 27, 1980 MEM ORANDUM OPINION FO R T H E ASSISTANT ATTORNEY G EN ER A L, C IV IL DIVISION You have requested our views on two representation questions that arose on appeal in a civil case in the Seventh Circuit, Hampton, et al. v. Hanrahah, et al.. No. 77-1698.* We gave you oral advice with respect to both questions. This memorandum sets out our thinking in greater detail. At the trial, the Department of Justice (DOJ) represented three federal defendants, all of them agents or former agents of the Federal Bureau of Investigation (FBI) who are accused of having assisted the State of Illinois in a lethal and allegedly unlawful “raid” against Black Panthers in Chicago in 1969. DOJ defended the case on the merits, won a directed verdict at the close of the plaintiffs’ evidence, and suffered a reversal on appeal when the Seventh Circuit remanded the case for a new trial. The Seventh Circuit held that the plaintiffs’ evidence was sufficient to go to the jury. • N o t e : The court of appeals decision in Hampton v. Hanrahan is reported at 600 F.2d 600 (7th Cir. 1979). Ed. 528 If the Seventh Circuit had simply remanded the case, no representa­ tion problem would have arisen. The Civil Division believes that the case is clearly one in which it is necessary and proper under our Representation Guidelines 1 for the government to provide a defense on the merits. In connection with the remand, however, the Seventh Circuit entered an order making an impressive award to the plaintiffs (in the amount of $90,000 plus) for attorney fees incurred by them in connection with the appeal; and in its order the court seemed to say that the award would be collected, not from the defendants personally, but from the State of Illinois and the United States (the United States paying one-third of the total). We note in passing that the United States is not a party to this action, although the federal defendants have apparently been sued in their “official” as well as their “personal” capacities. The representation problem arises because (1) this Department has traditionally taken the position that the United States cannot be re­ quired to pay attorney fees under the statute upon which the Seventh Circuit relied, 42 U.S.C. § 1988, and (2) the defendants may perceive that it is in their interest to support the contrary view. In other words, to reduce their own liability or potential liability, they may wish to argue that the fee award may be collected from the United States. Because of the possibility of a conflict between the government’s position and the position the defendants may wish to take with regard to the fee award issue, the Civil Division has advised the defendants that it may be necessary to make some alteration in the representation arrangement. In particular, the Civil Division has said: (1) that to vindicate the government’s interest, the United States will request the Seventh Circuit to clarify its order; (2) that the United States will pursue appropriate remedies in the Supreme Court if the Seventh Cir­ cuit refuses to abandon the position it seems to have taken with regard to the liability of the United States; (3) that the Department will represent the defendants with regard to all aspects of the case (arguing both that the directed verdict should have been allowed to stand and that fees were not properly awarded either against the defendants or against the United States) if the defendants will agree to representation on these terms, and will agree as well that the DOJ attorneys will be free to support the view that the fee award cannot in any event be taxed against the United States; (4) that the defendants should consult private counsel for advice as to how to proceed; and (5) that if they wish to pursue an argument contrary to the government’s position on the fee award issue, they must retain private counsel for that purpose. 1 See 28 C.F.R. § 50.15. A revised version of these guidelines exists but has not yet been printed in C.F.R. All references to the “ Representation Guidelines" in this memorandum are references to the revised version. [N o t e : The revised Representation Guidelines were published in the Code of Federal Regulations in substantially unchanged form in 1982. Ed.] 529 The Civil Division has advised the defendants that the Department cannot pay for legal services rendered by private counsel on their behalf in advancing arguments either in the Seventh Circuit or in the Supreme Court inconsistent with the government’s view that § 1988 does not authorize awards against the United States.2 In the midst of this entangled state of affairs, you have requested our opinion on the following questions: First, is the Civil Division correct in its view that this Department has no authority to retain private counsel to argue in court on the defendants’ behalf that § 1988 author­ izes fee awards against the United States? Second, assuming the defend­ ants do not wish to pursue such an argument, would it be ethical for the Department to continue to represent them under the terms de­ scribed in (3) above? I. In a series of recent opinions this Office has wrestled with the general question of the Attorney General’s authority to represent gov­ ernment employees in civil cases. Those opinions turn upon a number of considerations, but they proceed from one basic proposition: The general statutes that define the Attorney General’s litigation function (28 U.S.C. § 515 et seq.) authorize him to defend government employees against claims arising against them for conduct in the course of their employment, even in cases in which the relief sought by the claimant will not bind the Treasury of the United States or direct the officers of the United States in the performance of their duties. In other words, these general statutes authorize the Attorney General to defend the government employees against claims affecting their personal interests— i.e., claims against their property or against their liberty or reputations (e.g., state criminal prosecutions). The rationale for this interpretation of the Attorney General’s func­ tion is straightforward: If an employee is sued personally for something he did or omitted to do in the course of his employment, the United States may well have an interest in establishing that his conduct was lawful and in relieving him of the expense of retaining an attorney, provided the act or omission of which he is accused was a normal and 2 The defendants may of course decide not to argue that the award may be collected from the United States. The legal support for such an argument is not ironclad, and in any case the defendants may conclude that they stand a better chance of defeating the award if they can show that it cannot be collected from a deep pocket, the Treasury of the United States. We cannot of course anticipate what the defendants may do or what advice they may receive from private counsel. We note in passing that in some special circumstances the Civil Division, before making a final representation decision, finds it necessary to retain and pay private counsel to consult with the employee in question to determine whether or not there is in fact or law a conflict of interest that would preclude representation by this Department. This practice is reasonably incident to the A ttor­ ney General's basic litigation function, since to represent personal interests he must first determine whether they coincide with or diverge from the interests of the United States. It may be appropriate to follow this practice in the present case with regard to consultation by the defendants with private lawyers over the question of how they should proceed. 530 necessary part of his job. In other words, the interests of the govern­ ment and the personal interests of the employee may coincide. A ccord­ ingly, since the relevant statutes provide that the Attorney General may conduct any litigation in which the United States is “interested,” the Attorney General is authorized by statute to appear in proper cases to represent the personal interests of officers and employees who are sued in their personal capacities. Where private and public interests coincide, the representation of private interests is tantamount to repre­ sentation of the interests of the United States. This conception of the Attorney General’s function, which we reaf­ firm, is reflected in the Representation Guidelines. The Guidelines provide that, when a government officer or employee is sued personally for something he did or omitted to do in the course of his employment, the Attorney General will defend him, if it can be determined that a defense of his personal interests will serve the interests of the United States. In the typical case, the Attorney General represents government employees through attorneys and assistants regularly employed in the Department or in the U.S. Attorneys’ Offices; but with increasing frequency in recent years the Attorney General has retained private lawyers to represent government employees. Why has this happened? The basic principles of personal representation are sound in theory, but they are not easy to follow in practice. Cases arise in which: (1) a decision regarding representation must be made before it is known whether the interests of the government coincide with the personal interests of the defendant; (2) conflicts among multiple personal interests make it awkward for this Department to represent them all; (3) an identity of interest between the government and an individual which is present at the outset of a case evaporates in the course of litigation; or (4) a community of interest regarding core issues is disrupted by a divergence of interest regarding some peripheral point. As we under­ stand it, the practice of retaining private lawyers to defend government employees arose as the Department attempted to deal justly and effi­ ciently with these problem cases. The Guidelines provide that private counsel may be provided in lieu of government counsel in certain special cases in which representation by government counsel would be awkward. We need not discuss the phenomenon in its entirety. Instead, for purposes of analysis, w e'w ill show why in some circumstances it does make sense for the Attorney General to discharge his representa­ tion function through private lawyers, and we will then consider the present case in its relation to the Revised Guidelines. It is sometimes awkward from an institutional or professional stand­ point for DOJ lawyers to provide personal representation for govern­ ment employees, even though it is clear that representation of their interests will be in the interest of the United States. The best example 531 of that sort of case is the one involving multiple federal defendants who have differing views regarding the relevant facts. It may well be that none of these views differs in a material way from the view (if any) that the “United States” would have on the subject if the United States were a party to the case; and the ultimate outcome sought by each of the defendants may be perfectly consistent with the interests of the United States. Nonetheless, because of the differences regarding the facts, it might be professionally awkward for one DOJ lawyer or any one group of DOJ lawyers to represent all of the defendants; in such cases this Office has taken the view that the Attorney General has “implied authority” to provide representation through a mechanism that will enable him to resolve the professional difficulty. In particular, using his general authority to contract for services necessary in the performance of his statutory functions, he can hire private lawyers to do indirectly what it would be awkward for DOJ lawyers to do directly. A far more troubling class of cases in which private representation is sometimes provided are those in which it is clear that the personal interests of the employee-defendant actually diverge from the interests of the United States with regard to some material issue of fact or law involved in the litigation. This is the class of cases most directly relevant to your inquiry, and to that class we now turn. Section 50.15(a)(10) of the Revised Guidelines contemplates that cases will arise in which “adequate” representation of the personal interests of a government employee may require “the making of an argument which conflicts with a governmental position.” * The Guide­ lines provide that, in such a case, the conflict between “the governmen­ tal position” and the “argument” to be made on the employee’s behalf need not prevent the Department from providing the employee with representation. It may yet be possible to determine that representation of the employee will serve the interests of the United States; and if that is the case, the Guidelines provide that the Department can do one of two things: (1) it can tender representation through a DOJ lawyer (if the employee, after being advised of the government’s conflicting posi­ tion with regard to the “argument,” consents to representation on the government’s terms), or (2) it can provide representation through a private lawyer, who will represent the employee at government ex­ pense and make the argument that the government lawyer cannot make. The problem lies with the second option. How can it be in the interest of the United States (and therefore within the province of the Attorney General under § 515 et seq.) to finance an argument in court • N o t e : A s published in the Code of Federal Regulations in 1982, the Representation Guidelines refer to “the assertion of a position that conflicts with the interests of the United States See 28 C.F.R. § 50.15(a)( 10) (1982). Ed. 532 that is inconsistent with the position that the United States itself has taken or would take with respect to the matter in issue? For purposes of this memorandum, we will not attempt to answer that question in general terms. We are aware that in difficult and appealing circum­ stances, § 50.15(a)(10) has been invoked to provide government employ­ ees with private lawyers who have made arguments inconsistent with positions taken by the United States. But our most recent opinion on this subject suggests that it is not within the province of this Depart­ ment to provide employees with representation directly or indirectly for the purpose of opposing the government itself in federal criminal proceedings, and we reasoned in that memorandum that providing a personal defense for an employee in a civil case is justified only to the extent that the defense is tantamount to a defense of the government itself. The Attorney General represents government employees, directly or indirectly, only to the extent that their interests coincide with the interests of the United States. However the issue may be resolved in other contexts, the present case presents the issue in a most extreme setting. This case may well be distinguishable in a qualitative sense from a great many of the other cases in which the question can arise. Here we are being asked to decide not merely if this Department may finance a collateral argument that would differ in some respect from an argument the “United States” would make in pursuit of the same result or in defense of the same claim. Rather, we are being asked to decide that the Department may finance an argument that would be made in support of a claim against the United States. That is what the Department would be doing if it provided private representation on the fee award issue. We would be paying a lawyer to argue either that the plaintiffs’ claim for fees under § 1988 is good against the United States, or that the defendants them­ selves have a legal claim against the United States for indemnity, or contribution for fees taxed against them. It is purely a question of sovereign immunity: as between the defendants and the United States, who pays? There may indeed be circumstances in which Congress could 'con­ clude that it would serve the larger interests of the United States to finance legal claims against the United States. Congress could, for example, establish a legal aid society for government employees for the purpose among others of supporting a legal assault on the doctrine of sovereign immunity. But if it would be possible to make a legislative choice in favor of these claimants, it would nonetheless be very diffi­ cult, in our view, to conclude that that sort of choice is within the scope of the Attorney General’s implied authority under the statutes that define his office. His function, as we read those statutes, is to use the resources of this Department to oppose legal claims against the United States where, as here, he believes them to be without legal 533 merit. It is not his function to support such claims. For that reason we think it would be inappropriate to construe the Revised Guidelines as authorizing the Civil Division to pay private lawyers to represent government employees in connection with the support or assertion of claims such as the claim involved here. We think it would be inappro­ priate for the Attorney General to provide the federal defendants with private representation for the purpose of attacking the United States on the fee award issue. We have three additional observations to make before moving to your second question. First, our analysis has turned thus far on an interpretation of the statutes that define the Attorney General’s litigat­ ing function, 28 U.S.C- § 515 et seq. This analysis is appropriate in our view, since our task is to construe the Representation Guidelines, and those Guidelines are designed to define the Attorney General’s litigat­ ing function in civil cases involving government employees. Second, it makes no difference for purposes of this analysis that the defendants in the present case are employees or former employees of the Department of Justice. Absent a specific statute that alters the usual arrangement, the Attorney General’s authority to represent the personal interests of government employees in civil litigation (directly or indi­ rectly) does not vary under §515 el seq. from agency to agency, and the limitations on his authority are the same in each case. Under § 515 et seq., the Attorney General’s authority to provide representation for DOJ employees who are sued personally in a civil case is no different from his authority to provide representation for the employees of, say, the Department of State. Finally, we are mindful that the Attorney General is not simply a litigator. He has important functions other than those prescribed in §515 et seq. He is the head of a large executive department; and like any. department head he has general authority, subject to appropria­ tions, to make contracts and pay expenses that must be made and paid if his department is to run as it should. We endorse the principle, recog­ nized on occasion by the Comptroller General, that general executive authority of this sort may be invoked from time to time to permit an agency to reimburse its own employees for personal expenses incurred by them as a necessary consequence of faithful and lawful performance of their official duties. Indeed, although we express no firm view on this point, we see no reason why authority of this sort cannot be invoked by this or any other agency to reimburse blameless employees for personal expenses incurred by them in litigation, provided it is clear on the facts of each case that the expenses were incurred as a necessary consequence of due performance of an official duty. But even if that principle is valid, we think it has no application in the present context. The question is whether this Department could reimburse the defendants for the cost of arguing in court that the 534 United States can be held liable for payment of attorney fees under § 1988. An argument of that sort would not serve to establish the legality of any official action by these defendants or by this agency; it would, if accepted, enlarge the legal liabilities of the United States. It would not directly support any position taken by the government; on the contrary, it would be advanced in opposition to the position taken by this agency in this very case. It might or might not serve the personal interests of the defendants; but if it did serve them, it would do so in precisely the same way that any private claim against the public fisc (e.g., a claim for indemnity or contribution) might serve the interests of government employees in circumstances in which the ques­ tion is ultimately one of substituting public for private liability. It is a claim that they are fully entitled to make, but we think it would be very difficult to regard it as a claim that they must make as a necessary consequence of the duties cast upon them by their public employment, and it would therefore be difficult to regard the attendant expense as an expense they must “necessarily” incur within the meaning of the reim­ bursement rule. II. You have advised the defendants: (1) that the Department will with­ draw as their counsel in this phase of the case if they decide that they should lend their support to the claim that the United States may be held liable for the fee award (either to the plaintiffs directly or to themselves by way of indemnity or contribution); (2) that in any event, the United States will attempt to intervene in the case to support the position that the award against the United States was improper; but (3) that DOJ attorneys will continue to represent them if they desire the representation to continue and agree in writing that DOJ attorneys will be free to take the position that the fee award cannot be taxed against the United States. You have also advised the defendants that a failure on their part to oppose the position taken by the United States in this case may later be regarded by a court as the equivalent of a waiver of their right, if any, to claim that the United States is liable to anyone (including them) for any part of the fee award. You have asked whether, in our view, the option described in (3) presents any substantial ethical difficulty. For the reasons given below, we think it does not. It is for these defendants, acting with the advice of competent law­ yers, to determine how they shall conduct their personal defense. Whether in the long run it will serve their personal interests-to support the view that the United States can be held liable for payment of the fee award, or whether it will serve them better to stand now with the United States and be represented by DOJ lawyers in this phase of the case, is a question as to which this Department cannot properly advise 535 them, given the conflicting governmental position. The Civil Division has suggested that they should therefore consult private counsel, and the Civil Division has offered to withdraw if they conclude that the better course is to oppose the governmental position. The Civil Divi­ sion has said that it will continue to represent them in this phase of the case only if they decide to go forward in a way that is consistent with the governmental position, but as regards the ethics of withdrawal versus the ethics of continued representation, it seems to us that having promised at the outset that the Department would represent their inter­ ests to the extent that those interests coincide with the interests of the United States, the ethical difficulty would lie with an adamant refusal to proceed with representation, not with a continuing effort to do what we promised to do at the outset, assuming of course that the defend­ ants, after consultation with independent counsel, conclude that this is the better course. Putting its unique features to one side, this case is very much like the routine civil action in which codefendants have a common interest in defeating all of the claims against all of them, even though each defend­ ant may have an individual interest in giving reasons why his codefendants, not he, should respond in damages to the complaint. In that setting, it is clear that defendants are free as a matter of litigation strategy to subordinate the interests that divide them and to present a united front against the plaintiff as to the law or the facts. The choice is theirs; and if, after consultation with independent counsel, they choose to present a united front, there is no ethical difficulty in engaging one lawyer to present their united position. Cf. Aetna Ins. Co. v. United States, 570 F.2d 1197 (4th Cir. 1978). We do not know how the defendants will be advised in this case, but it is at least possible they will conclude that they will stand a better chance of escaping ultimate liability for payment of a fee award if they support the government’s position and establish that there is no deep pocket from which part of the award can be paid; and* in any event, they may conclude that they simply do not wish to oppose the govern­ ment on this point. They are loyal employees. That, in essence, is their defense on the merits. We have one or two additional observations to make. We express no view on the general question whether it is necessary or desirable to analyze this particular ethical problem by reference to the settled prin­ ciples that govern the representation of “differing interests” by private attorneys. See Canon 5 and DR 5-105. This Office frequently draws upon those and other private-law principles in our effort to provide guidance to the Department in ethical matters; and it is true of course that by virtue of our own regulations the Code of Professional Respon­ sibility governs our conduct here to the extent that the Code attempts to deal with the kinds of problems that confront us as government 536 lawyers. But we' need to keep in mind that we are often called upon to resolve representation questions that involve considerations quite differ­ ent from those that are usually involved in private cases. Among these “different considerations” are the statutes that establish the office of the Attorney General and define his litigating and counseling functions. As we have suggested in part I of this opinion, these statutes impose overriding substantive limitations on what the Attorney General and the attorneys who work under him may and may not do in court. Canon 5 and DR 5-105 contemplate that there is a limited class of cases in which a lawyer may undertake to represent the “differing interests” of “multiple clients.” He may do this only if: (1) it is “obvi­ ous” that he can adequately represent the interest of each, and (2) each client consents to the representation “after full disclosure of the possible effect of such representation on the exercise of his independent profes­ sional judgment on behalf of each.” In other words, the rule envisions a situation in which a lawyer attempts to provide “adequate” representa­ tion for all of the interests of more than one client, even though there may be differences as between two or more of those interests. The rule does not contemplate a case of the kind presented here: a case in which a lawyer who is also an officer of the government (the Attorney General) undertakes to discharge a statutory duty to represent officers of the United States in civil litigation but, because of overriding statu­ tory limitations on his authority, undertakes to represent their personal interests only to the extent that they coincide with the interests of the United States. He cannot and does not undertake to represent any personal interest that differs from the interests of the United States. He does not, in a word, undertake to represent “differing interests”; and he leaves it to the defendants, after consultation with independent counsel, to determine: (1) whether they do in fact have interests that differ from those of the United States; (2) whether their overall interests would be served by taking an independent course in the litigation under the representation of private counsel; or (3) whether their overall interests would be better served by adopting a strategy of alliance with the interests of the United States, as those interests are defined and repre­ sented by the Attorney General. If they choose the latter course, we think no ethical difficulty is presented by the Attorney General’s will­ ingness to accommodate their desire that he appear on their behalf to advance the interests that they hold in common with the United States. In the context of a case of this sort, representation of common interests after consultation with independent counsel is not representation of “differing interests,” and in our view it threatens none o f the dangers that Canon 5 is designed to prevent. J o h n M. H a r m o n Assistant Attorney General Office o f Legal Counsel 537

Write a legal research memo on the following topic.

Representation of Government Employees in Cases Where Their Interests Diverge from Those of the United States T h e A tto rn e y G e n e ra l is a u th o riz e d to rep re sen t th e personal interests o f g o v e rn m e n t em p lo y ees sued in th e ir official cap ac ities if it w ill se rv e th e interests o f th e U nited S tates. E v e n if a d e q u a te rep re sen tatio n o f an e m p lo y e e ’s personal interests in a law suit requires th e m ak in g o f an a rg u m e n t th at c o n flic ts w ith a g o v e rn m e n ta l position, such re p re se n ­ tatio n m ay still se rv e th e in terests o f th e U n ited S tates. W h ere th e p erso n al in terests U n ited S tates, as w o u ld be su p p o rt a claim against th e G e n e ra l e ith e r to rep re sen t counsel. o f e m p lo y ee-d efen d an ts co n flict w ith th e interests o f the th e case if th e y w e re to a d v a n c e an arg u m en t th at w ould U n ited S tates, it w o u ld be in a p p ro p ria te for th e A tto rn e y them d ire c tly o r to finance th eir rep re sen tatio n by p riv ate If th e p erso n al in terests o f e m p lo y e e -d e fe n d a n ts p o ten tially co n flict w ith th e in terests o f th e U n ited S tates, th e A tto rn e y G e n e ra l m ay still rep re sen t them , if th e y w ish him to d o so, w ith o u t im p licatin g th e eth ic a l ru le against rep re sen tin g d ifferin g interests o f m u ltip le clients. March 27, 1980 MEM ORANDUM OPINION FO R T H E ASSISTANT ATTORNEY G EN ER A L, C IV IL DIVISION You have requested our views on two representation questions that arose on appeal in a civil case in the Seventh Circuit, Hampton, et al. v. Hanrahah, et al.. No. 77-1698.* We gave you oral advice with respect to both questions. This memorandum sets out our thinking in greater detail. At the trial, the Department of Justice (DOJ) represented three federal defendants, all of them agents or former agents of the Federal Bureau of Investigation (FBI) who are accused of having assisted the State of Illinois in a lethal and allegedly unlawful “raid” against Black Panthers in Chicago in 1969. DOJ defended the case on the merits, won a directed verdict at the close of the plaintiffs’ evidence, and suffered a reversal on appeal when the Seventh Circuit remanded the case for a new trial. The Seventh Circuit held that the plaintiffs’ evidence was sufficient to go to the jury. • N o t e : The court of appeals decision in Hampton v. Hanrahan is reported at 600 F.2d 600 (7th Cir. 1979). Ed. 528 If the Seventh Circuit had simply remanded the case, no representa­ tion problem would have arisen. The Civil Division believes that the case is clearly one in which it is necessary and proper under our Representation Guidelines 1 for the government to provide a defense on the merits. In connection with the remand, however, the Seventh Circuit entered an order making an impressive award to the plaintiffs (in the amount of $90,000 plus) for attorney fees incurred by them in connection with the appeal; and in its order the court seemed to say that the award would be collected, not from the defendants personally, but from the State of Illinois and the United States (the United States paying one-third of the total). We note in passing that the United States is not a party to this action, although the federal defendants have apparently been sued in their “official” as well as their “personal” capacities. The representation problem arises because (1) this Department has traditionally taken the position that the United States cannot be re­ quired to pay attorney fees under the statute upon which the Seventh Circuit relied, 42 U.S.C. § 1988, and (2) the defendants may perceive that it is in their interest to support the contrary view. In other words, to reduce their own liability or potential liability, they may wish to argue that the fee award may be collected from the United States. Because of the possibility of a conflict between the government’s position and the position the defendants may wish to take with regard to the fee award issue, the Civil Division has advised the defendants that it may be necessary to make some alteration in the representation arrangement. In particular, the Civil Division has said: (1) that to vindicate the government’s interest, the United States will request the Seventh Circuit to clarify its order; (2) that the United States will pursue appropriate remedies in the Supreme Court if the Seventh Cir­ cuit refuses to abandon the position it seems to have taken with regard to the liability of the United States; (3) that the Department will represent the defendants with regard to all aspects of the case (arguing both that the directed verdict should have been allowed to stand and that fees were not properly awarded either against the defendants or against the United States) if the defendants will agree to representation on these terms, and will agree as well that the DOJ attorneys will be free to support the view that the fee award cannot in any event be taxed against the United States; (4) that the defendants should consult private counsel for advice as to how to proceed; and (5) that if they wish to pursue an argument contrary to the government’s position on the fee award issue, they must retain private counsel for that purpose. 1 See 28 C.F.R. § 50.15. A revised version of these guidelines exists but has not yet been printed in C.F.R. All references to the “ Representation Guidelines" in this memorandum are references to the revised version. [N o t e : The revised Representation Guidelines were published in the Code of Federal Regulations in substantially unchanged form in 1982. Ed.] 529 The Civil Division has advised the defendants that the Department cannot pay for legal services rendered by private counsel on their behalf in advancing arguments either in the Seventh Circuit or in the Supreme Court inconsistent with the government’s view that § 1988 does not authorize awards against the United States.2 In the midst of this entangled state of affairs, you have requested our opinion on the following questions: First, is the Civil Division correct in its view that this Department has no authority to retain private counsel to argue in court on the defendants’ behalf that § 1988 author­ izes fee awards against the United States? Second, assuming the defend­ ants do not wish to pursue such an argument, would it be ethical for the Department to continue to represent them under the terms de­ scribed in (3) above? I. In a series of recent opinions this Office has wrestled with the general question of the Attorney General’s authority to represent gov­ ernment employees in civil cases. Those opinions turn upon a number of considerations, but they proceed from one basic proposition: The general statutes that define the Attorney General’s litigation function (28 U.S.C. § 515 et seq.) authorize him to defend government employees against claims arising against them for conduct in the course of their employment, even in cases in which the relief sought by the claimant will not bind the Treasury of the United States or direct the officers of the United States in the performance of their duties. In other words, these general statutes authorize the Attorney General to defend the government employees against claims affecting their personal interests— i.e., claims against their property or against their liberty or reputations (e.g., state criminal prosecutions). The rationale for this interpretation of the Attorney General’s func­ tion is straightforward: If an employee is sued personally for something he did or omitted to do in the course of his employment, the United States may well have an interest in establishing that his conduct was lawful and in relieving him of the expense of retaining an attorney, provided the act or omission of which he is accused was a normal and 2 The defendants may of course decide not to argue that the award may be collected from the United States. The legal support for such an argument is not ironclad, and in any case the defendants may conclude that they stand a better chance of defeating the award if they can show that it cannot be collected from a deep pocket, the Treasury of the United States. We cannot of course anticipate what the defendants may do or what advice they may receive from private counsel. We note in passing that in some special circumstances the Civil Division, before making a final representation decision, finds it necessary to retain and pay private counsel to consult with the employee in question to determine whether or not there is in fact or law a conflict of interest that would preclude representation by this Department. This practice is reasonably incident to the A ttor­ ney General's basic litigation function, since to represent personal interests he must first determine whether they coincide with or diverge from the interests of the United States. It may be appropriate to follow this practice in the present case with regard to consultation by the defendants with private lawyers over the question of how they should proceed. 530 necessary part of his job. In other words, the interests of the govern­ ment and the personal interests of the employee may coincide. A ccord­ ingly, since the relevant statutes provide that the Attorney General may conduct any litigation in which the United States is “interested,” the Attorney General is authorized by statute to appear in proper cases to represent the personal interests of officers and employees who are sued in their personal capacities. Where private and public interests coincide, the representation of private interests is tantamount to repre­ sentation of the interests of the United States. This conception of the Attorney General’s function, which we reaf­ firm, is reflected in the Representation Guidelines. The Guidelines provide that, when a government officer or employee is sued personally for something he did or omitted to do in the course of his employment, the Attorney General will defend him, if it can be determined that a defense of his personal interests will serve the interests of the United States. In the typical case, the Attorney General represents government employees through attorneys and assistants regularly employed in the Department or in the U.S. Attorneys’ Offices; but with increasing frequency in recent years the Attorney General has retained private lawyers to represent government employees. Why has this happened? The basic principles of personal representation are sound in theory, but they are not easy to follow in practice. Cases arise in which: (1) a decision regarding representation must be made before it is known whether the interests of the government coincide with the personal interests of the defendant; (2) conflicts among multiple personal interests make it awkward for this Department to represent them all; (3) an identity of interest between the government and an individual which is present at the outset of a case evaporates in the course of litigation; or (4) a community of interest regarding core issues is disrupted by a divergence of interest regarding some peripheral point. As we under­ stand it, the practice of retaining private lawyers to defend government employees arose as the Department attempted to deal justly and effi­ ciently with these problem cases. The Guidelines provide that private counsel may be provided in lieu of government counsel in certain special cases in which representation by government counsel would be awkward. We need not discuss the phenomenon in its entirety. Instead, for purposes of analysis, w e'w ill show why in some circumstances it does make sense for the Attorney General to discharge his representa­ tion function through private lawyers, and we will then consider the present case in its relation to the Revised Guidelines. It is sometimes awkward from an institutional or professional stand­ point for DOJ lawyers to provide personal representation for govern­ ment employees, even though it is clear that representation of their interests will be in the interest of the United States. The best example 531 of that sort of case is the one involving multiple federal defendants who have differing views regarding the relevant facts. It may well be that none of these views differs in a material way from the view (if any) that the “United States” would have on the subject if the United States were a party to the case; and the ultimate outcome sought by each of the defendants may be perfectly consistent with the interests of the United States. Nonetheless, because of the differences regarding the facts, it might be professionally awkward for one DOJ lawyer or any one group of DOJ lawyers to represent all of the defendants; in such cases this Office has taken the view that the Attorney General has “implied authority” to provide representation through a mechanism that will enable him to resolve the professional difficulty. In particular, using his general authority to contract for services necessary in the performance of his statutory functions, he can hire private lawyers to do indirectly what it would be awkward for DOJ lawyers to do directly. A far more troubling class of cases in which private representation is sometimes provided are those in which it is clear that the personal interests of the employee-defendant actually diverge from the interests of the United States with regard to some material issue of fact or law involved in the litigation. This is the class of cases most directly relevant to your inquiry, and to that class we now turn. Section 50.15(a)(10) of the Revised Guidelines contemplates that cases will arise in which “adequate” representation of the personal interests of a government employee may require “the making of an argument which conflicts with a governmental position.” * The Guide­ lines provide that, in such a case, the conflict between “the governmen­ tal position” and the “argument” to be made on the employee’s behalf need not prevent the Department from providing the employee with representation. It may yet be possible to determine that representation of the employee will serve the interests of the United States; and if that is the case, the Guidelines provide that the Department can do one of two things: (1) it can tender representation through a DOJ lawyer (if the employee, after being advised of the government’s conflicting posi­ tion with regard to the “argument,” consents to representation on the government’s terms), or (2) it can provide representation through a private lawyer, who will represent the employee at government ex­ pense and make the argument that the government lawyer cannot make. The problem lies with the second option. How can it be in the interest of the United States (and therefore within the province of the Attorney General under § 515 et seq.) to finance an argument in court • N o t e : A s published in the Code of Federal Regulations in 1982, the Representation Guidelines refer to “the assertion of a position that conflicts with the interests of the United States See 28 C.F.R. § 50.15(a)( 10) (1982). Ed. 532 that is inconsistent with the position that the United States itself has taken or would take with respect to the matter in issue? For purposes of this memorandum, we will not attempt to answer that question in general terms. We are aware that in difficult and appealing circum­ stances, § 50.15(a)(10) has been invoked to provide government employ­ ees with private lawyers who have made arguments inconsistent with positions taken by the United States. But our most recent opinion on this subject suggests that it is not within the province of this Depart­ ment to provide employees with representation directly or indirectly for the purpose of opposing the government itself in federal criminal proceedings, and we reasoned in that memorandum that providing a personal defense for an employee in a civil case is justified only to the extent that the defense is tantamount to a defense of the government itself. The Attorney General represents government employees, directly or indirectly, only to the extent that their interests coincide with the interests of the United States. However the issue may be resolved in other contexts, the present case presents the issue in a most extreme setting. This case may well be distinguishable in a qualitative sense from a great many of the other cases in which the question can arise. Here we are being asked to decide not merely if this Department may finance a collateral argument that would differ in some respect from an argument the “United States” would make in pursuit of the same result or in defense of the same claim. Rather, we are being asked to decide that the Department may finance an argument that would be made in support of a claim against the United States. That is what the Department would be doing if it provided private representation on the fee award issue. We would be paying a lawyer to argue either that the plaintiffs’ claim for fees under § 1988 is good against the United States, or that the defendants them­ selves have a legal claim against the United States for indemnity, or contribution for fees taxed against them. It is purely a question of sovereign immunity: as between the defendants and the United States, who pays? There may indeed be circumstances in which Congress could 'con­ clude that it would serve the larger interests of the United States to finance legal claims against the United States. Congress could, for example, establish a legal aid society for government employees for the purpose among others of supporting a legal assault on the doctrine of sovereign immunity. But if it would be possible to make a legislative choice in favor of these claimants, it would nonetheless be very diffi­ cult, in our view, to conclude that that sort of choice is within the scope of the Attorney General’s implied authority under the statutes that define his office. His function, as we read those statutes, is to use the resources of this Department to oppose legal claims against the United States where, as here, he believes them to be without legal 533 merit. It is not his function to support such claims. For that reason we think it would be inappropriate to construe the Revised Guidelines as authorizing the Civil Division to pay private lawyers to represent government employees in connection with the support or assertion of claims such as the claim involved here. We think it would be inappro­ priate for the Attorney General to provide the federal defendants with private representation for the purpose of attacking the United States on the fee award issue. We have three additional observations to make before moving to your second question. First, our analysis has turned thus far on an interpretation of the statutes that define the Attorney General’s litigat­ ing function, 28 U.S.C- § 515 et seq. This analysis is appropriate in our view, since our task is to construe the Representation Guidelines, and those Guidelines are designed to define the Attorney General’s litigat­ ing function in civil cases involving government employees. Second, it makes no difference for purposes of this analysis that the defendants in the present case are employees or former employees of the Department of Justice. Absent a specific statute that alters the usual arrangement, the Attorney General’s authority to represent the personal interests of government employees in civil litigation (directly or indi­ rectly) does not vary under §515 el seq. from agency to agency, and the limitations on his authority are the same in each case. Under § 515 et seq., the Attorney General’s authority to provide representation for DOJ employees who are sued personally in a civil case is no different from his authority to provide representation for the employees of, say, the Department of State. Finally, we are mindful that the Attorney General is not simply a litigator. He has important functions other than those prescribed in §515 et seq. He is the head of a large executive department; and like any. department head he has general authority, subject to appropria­ tions, to make contracts and pay expenses that must be made and paid if his department is to run as it should. We endorse the principle, recog­ nized on occasion by the Comptroller General, that general executive authority of this sort may be invoked from time to time to permit an agency to reimburse its own employees for personal expenses incurred by them as a necessary consequence of faithful and lawful performance of their official duties. Indeed, although we express no firm view on this point, we see no reason why authority of this sort cannot be invoked by this or any other agency to reimburse blameless employees for personal expenses incurred by them in litigation, provided it is clear on the facts of each case that the expenses were incurred as a necessary consequence of due performance of an official duty. But even if that principle is valid, we think it has no application in the present context. The question is whether this Department could reimburse the defendants for the cost of arguing in court that the 534 United States can be held liable for payment of attorney fees under § 1988. An argument of that sort would not serve to establish the legality of any official action by these defendants or by this agency; it would, if accepted, enlarge the legal liabilities of the United States. It would not directly support any position taken by the government; on the contrary, it would be advanced in opposition to the position taken by this agency in this very case. It might or might not serve the personal interests of the defendants; but if it did serve them, it would do so in precisely the same way that any private claim against the public fisc (e.g., a claim for indemnity or contribution) might serve the interests of government employees in circumstances in which the ques­ tion is ultimately one of substituting public for private liability. It is a claim that they are fully entitled to make, but we think it would be very difficult to regard it as a claim that they must make as a necessary consequence of the duties cast upon them by their public employment, and it would therefore be difficult to regard the attendant expense as an expense they must “necessarily” incur within the meaning of the reim­ bursement rule. II. You have advised the defendants: (1) that the Department will with­ draw as their counsel in this phase of the case if they decide that they should lend their support to the claim that the United States may be held liable for the fee award (either to the plaintiffs directly or to themselves by way of indemnity or contribution); (2) that in any event, the United States will attempt to intervene in the case to support the position that the award against the United States was improper; but (3) that DOJ attorneys will continue to represent them if they desire the representation to continue and agree in writing that DOJ attorneys will be free to take the position that the fee award cannot be taxed against the United States. You have also advised the defendants that a failure on their part to oppose the position taken by the United States in this case may later be regarded by a court as the equivalent of a waiver of their right, if any, to claim that the United States is liable to anyone (including them) for any part of the fee award. You have asked whether, in our view, the option described in (3) presents any substantial ethical difficulty. For the reasons given below, we think it does not. It is for these defendants, acting with the advice of competent law­ yers, to determine how they shall conduct their personal defense. Whether in the long run it will serve their personal interests-to support the view that the United States can be held liable for payment of the fee award, or whether it will serve them better to stand now with the United States and be represented by DOJ lawyers in this phase of the case, is a question as to which this Department cannot properly advise 535 them, given the conflicting governmental position. The Civil Division has suggested that they should therefore consult private counsel, and the Civil Division has offered to withdraw if they conclude that the better course is to oppose the governmental position. The Civil Divi­ sion has said that it will continue to represent them in this phase of the case only if they decide to go forward in a way that is consistent with the governmental position, but as regards the ethics of withdrawal versus the ethics of continued representation, it seems to us that having promised at the outset that the Department would represent their inter­ ests to the extent that those interests coincide with the interests of the United States, the ethical difficulty would lie with an adamant refusal to proceed with representation, not with a continuing effort to do what we promised to do at the outset, assuming of course that the defend­ ants, after consultation with independent counsel, conclude that this is the better course. Putting its unique features to one side, this case is very much like the routine civil action in which codefendants have a common interest in defeating all of the claims against all of them, even though each defend­ ant may have an individual interest in giving reasons why his codefendants, not he, should respond in damages to the complaint. In that setting, it is clear that defendants are free as a matter of litigation strategy to subordinate the interests that divide them and to present a united front against the plaintiff as to the law or the facts. The choice is theirs; and if, after consultation with independent counsel, they choose to present a united front, there is no ethical difficulty in engaging one lawyer to present their united position. Cf. Aetna Ins. Co. v. United States, 570 F.2d 1197 (4th Cir. 1978). We do not know how the defendants will be advised in this case, but it is at least possible they will conclude that they will stand a better chance of escaping ultimate liability for payment of a fee award if they support the government’s position and establish that there is no deep pocket from which part of the award can be paid; and* in any event, they may conclude that they simply do not wish to oppose the govern­ ment on this point. They are loyal employees. That, in essence, is their defense on the merits. We have one or two additional observations to make. We express no view on the general question whether it is necessary or desirable to analyze this particular ethical problem by reference to the settled prin­ ciples that govern the representation of “differing interests” by private attorneys. See Canon 5 and DR 5-105. This Office frequently draws upon those and other private-law principles in our effort to provide guidance to the Department in ethical matters; and it is true of course that by virtue of our own regulations the Code of Professional Respon­ sibility governs our conduct here to the extent that the Code attempts to deal with the kinds of problems that confront us as government 536 lawyers. But we' need to keep in mind that we are often called upon to resolve representation questions that involve considerations quite differ­ ent from those that are usually involved in private cases. Among these “different considerations” are the statutes that establish the office of the Attorney General and define his litigating and counseling functions. As we have suggested in part I of this opinion, these statutes impose overriding substantive limitations on what the Attorney General and the attorneys who work under him may and may not do in court. Canon 5 and DR 5-105 contemplate that there is a limited class of cases in which a lawyer may undertake to represent the “differing interests” of “multiple clients.” He may do this only if: (1) it is “obvi­ ous” that he can adequately represent the interest of each, and (2) each client consents to the representation “after full disclosure of the possible effect of such representation on the exercise of his independent profes­ sional judgment on behalf of each.” In other words, the rule envisions a situation in which a lawyer attempts to provide “adequate” representa­ tion for all of the interests of more than one client, even though there may be differences as between two or more of those interests. The rule does not contemplate a case of the kind presented here: a case in which a lawyer who is also an officer of the government (the Attorney General) undertakes to discharge a statutory duty to represent officers of the United States in civil litigation but, because of overriding statu­ tory limitations on his authority, undertakes to represent their personal interests only to the extent that they coincide with the interests of the United States. He cannot and does not undertake to represent any personal interest that differs from the interests of the United States. He does not, in a word, undertake to represent “differing interests”; and he leaves it to the defendants, after consultation with independent counsel, to determine: (1) whether they do in fact have interests that differ from those of the United States; (2) whether their overall interests would be served by taking an independent course in the litigation under the representation of private counsel; or (3) whether their overall interests would be better served by adopting a strategy of alliance with the interests of the United States, as those interests are defined and repre­ sented by the Attorney General. If they choose the latter course, we think no ethical difficulty is presented by the Attorney General’s will­ ingness to accommodate their desire that he appear on their behalf to advance the interests that they hold in common with the United States. In the context of a case of this sort, representation of common interests after consultation with independent counsel is not representation of “differing interests,” and in our view it threatens none o f the dangers that Canon 5 is designed to prevent. J o h n M. H a r m o n Assistant Attorney General Office o f Legal Counsel 537

Write a legal research memo on the following topic.

Security Clearance Adjudications by the DOJ Access Review Committee The notification requirement in section 106(c) of the Foreign Intelligence Surveillance Act generally applies when the Department of Justice intends to use information obtained from electronic surveillance against an aggrieved person in an adjudication before the Access Review Committee concerning the Department’s revocation of an employee’s security clearance. Compliance with the notification requirement in section 106(c) of the Foreign Intelligence Surveillance Act in particular Access Review Committee adjudications could raise asapplied constitutional questions if such notice would require disclosure of sensitive national security information protected by executive privilege. June 3, 2011 MEMORANDUM OPINION FOR THE CHAIR AND MEMBERS OF THE ACCESS REVIEW COMMITTEE Section 106(c) of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1806(c) (2006), requires the government to notify an “aggrieved person”—that is, a person who was the target of electronic surveillance or whose communications or activities were subject to electronic surveillance, see id. § 1801(k)—whenever the government intends to use “against” that person any information “obtained or derived from [such] electronic surveillance of that aggrieved person” in any “trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States.” You have asked whether this notification requirement applies when the Department of Justice intends to use information obtained from such electronic surveillance against an aggrieved person in an adjudication before the Access Review Committee (“ARC”) concerning the Department’s revocation of an employee’s security clearance. 1 In accord with views we received from the Department’s Justice Management and National Security Divisions, we conclude that the notification requirement generally applies to such 1 See Memorandum for David Barron, Acting Assistant Attorney General, Office of Legal Counsel, from Mari Barr Santangelo, Chair, Access Review Committee, et al., Re: Request for Opinion (Jan. 26, 2010). 86 Security Clearance Adjudications by the DOJ Access Review Committee adjudications. 2 But, as we explain below, compliance with the notification requirement in particular ARC adjudications could raise as-applied constitutional questions if such notice would require disclosure of sensitive national security information protected by executive privilege. I. Section 106(c) of FISA provides: Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information. 50 U.S.C. § 1806(c). Section 106(e), in turn, provides that the aggrieved person “may move to suppress the evidence obtained or derived from such electronic surveillance on the grounds that—(1) the information was unlawfully acquired; or (2) the surveillance was not made in conformity with an order of authorization or approval.” Id. § 1806(e). See E-mail for Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from Stuart Frisch, General Counsel, Justice Management Division, Re: ARC request (Apr. 2, 2010); E-mail for Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from Todd Hinnen, Deputy Assistant Attorney General for Law and Policy, National Security Division, Re: NSD Views Regarding the Applicability of 1806’s Notification Provision to Access Review Committee Proceedings (Mar. 31, 2010). We also received views from the Federal Bureau of Investigation (“FBI”) that did not take issue with the position that section 106(c) applies to ARC adjudications, but that raised other, related issues, two of which we respond to below in note 3 and in Part III. See Memorandum for the Acting Assistant Attorney General, Office of Legal Counsel, from Valerie Caproni, General Counsel, Federal Bureau of Investigation, Re: Request for an OLC Opinion Dated January 26, 2010 by ARC (Aug. 9, 2010) (“Caproni Memo”). 2 87 35 Op. O.L.C. 86 (2011) You have asked us to assume, for purposes of our analysis, that a Department component has revoked an employee’s security clearance; that the loss of security clearance caused the component to discharge the employee; that the employee has appealed the component’s securityclearance revocation decision to the ARC; and that, in the course of the ARC adjudication, the Department intends to justify the clearance revocation with the use of information it has “obtained . . . from an electronic surveillance” of communications that involved the employee. 3 Id. § 1806(c). Accordingly, we will assume that the employee in question would be an “aggrieved person” under section 106(c), 4 and that the government would use “information obtained . . . from an electronic surveillance of” that aggrieved person “against” that person in the ARC adjudication. Id. The function of a security clearance for a Department employee is to designate the employee as someone who is eligible to be afforded access to classified information, in accordance with the standards set forth in part 3 of Executive Order 12968, 3 C.F.R. 391, 397 (1996). See 28 C.F.R. § 17.41(a)(1) (2010). Executive Order 12968 provides in relevant part that eligibility for access to classified materials may be granted only to those employees for whom an appropriate investigation has been completed and whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willing- Because the circumstances you posit involve the use of information obtained directly from the electronic surveillance in question, we need not address the language in section 106(c) that also makes the section applicable when information has been “derived from” electronic surveillance. 4 Section 101(k) of FISA defines an “aggrieved person” as a “person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.” 50 U.S.C. § 1801(k). In other words, “aggrieved person[s]” include only those persons targeted by the surveillance and others who are parties to communications subject to surveillance; as explained in a FISA House Report, “[t]he term specifically does not include persons, not parties to a communication, who may be mentioned or talked about by others.” H.R. Rep. No. 95-1283, pt. I, at 66 (1978). 3 88 Security Clearance Adjudications by the DOJ Access Review Committee ness and ability to abide by regulations governing the use, handling, and protection of classified information. Exec. Order No. 12968, § 3.1(b), 3 C.F.R. at 397. The Executive Order requires that departments and agencies reinvestigate employees on a periodic basis, and it authorizes additional reinvestigation “if, at any time, there is reason to believe” that an employee “may no longer meet the standards for access established” by the Order. Id. § 3.4(b), 3 C.F.R. at 399. 5 The applicable Department of Justice regulations accordingly provide that “[e]ligibility shall be granted only where facts and circumstances indicate access to classified information is clearly consistent with the national security interests of the United States and any doubt shall be resolved in favor of the national security.” 28 C.F.R. § 17.41(b). 6 If a Department component denies an employee a security clearance— that is, if the component determines that the employee is not eligible for access to classified information—or if the component revokes such eligibility, the component must provide the employee “with a comprehensive and detailed written explanation of the basis” for the decision, to the extent that “the national security interests of the United States and other applicable law permit.” Id. § 17.47(a)(1). The component must also inform the employee that she has a right, at her own expense, to be represented by counsel or another representative of her choice. Id. During the thirty days following the date of the component’s written explanation of the clearance denial, the employee may request any “documents, records or reports” from the security clearance investigation, “including the In 2008, section 3(b) of Executive Order 13467 amended Executive Order 12968 in several respects, including by adding a new section 3.5 that provides for “continuous evaluation” of individuals determined to be eligible for access to classified information. See 3 C.F.R. §§ 196, 201 (2009). None of the 2008 amendments is germane to our analysis here. 6 Eligibility for access to classified information—i.e., having a security clearance— does not mean that an employee will necessarily be afforded access to such information. Both Executive Order 12968 and the Department’s regulations provide that eligibility for access is merely one prerequisite to actual access. In particular, an employee may not be provided access to such information without a demonstrated “need-to-know,” see Exec. Order No. 12968, § 1.2(a) & (c)(2), 3 C.F.R. at 392; 28 C.F.R. § 17.41(a)(2), and agencies must “ensure that access to classified information by each employee is clearly consistent with the interests of the national security,” Exec. Order No. 12968, § 1.2(b), 3 C.F.R. at 392; accord 28 C.F.R. § 17.41(c). 5 89 35 Op. O.L.C. 86 (2011) entire investigative file upon which [the] denial or revocation [was] based,” id. § 17.47(a)(2), and within thirty days of such a request the employee must receive copies of the requested materials to the extent such materials would have been provided if requested under the Freedom of Information Act or the Privacy Act and “as the national security interests and other applicable law permit.” Id. § 17.47(a)(3). Thirty days after receiving the written explanation of the denial or the requested documents under section 17.47(a)(3)—whichever is later—the employee may file a written reply and request a review of the adverse determination. Id. § 17.47(b). Thereafter, the employee must be provided a written notice of the results of the requested review, including the reasons for the results, along with the identity of the deciding authority and notice of the right to appeal an adverse decision to the ARC. The employee then may, within thirty days of receiving that written notice, appeal an adverse decision to the ARC and may request the opportunity to appear personally before the ARC and to present relevant documents, materials, and information. Id. § 17.47(d). The Department Security Officer must also be afforded an opportunity to present relevant materials to the ARC in support of the security clearance denial or revocation, and may appear personally if the employee does so. Id. § 17.47(g). The ARC is composed of the Deputy Attorney General, the Assistant Attorney General for National Security, and the Assistant Attorney General for Administration—each of whom may name a designee, subject to the Attorney General’s approval. See 28 C.F.R. § 17.15(b). When an employee appeals an adverse security clearance decision, the ARC must make a written “determination of eligibility for access to classified information . . . as expeditiously as possible.” Id. § 17.47(f). Although the regulations describe this determination as a “discretionary security decision” by the ARC, they also mirror the regulations governing the component’s initial decision by providing that the ARC may conclude that an employee should be granted eligibility for access to classified materials “only where facts and circumstances indicate that access to classified information is clearly consistent with the national security interest of the United States”; any doubt is to be “resolved in favor of the national security.” Id. The ARC’s decision is final unless the Attorney General requests a recommendation from the ARC and “personally exercises appeal authority.” Id. § 17.15(a). 90 Security Clearance Adjudications by the DOJ Access Review Committee II. Because the ARC is composed of three high-ranking Department officials or their designees and its decisions are final unless the Attorney General personally exercises appeal authority over them, an ARC adjudication challenging revocation of a security clearance takes place before a “department, officer[s], . . . or other authority of the United States.” 50 U.S.C. § 1806(c); see 28 U.S.C. § 501 (2006) (“[t]he Department of Justice is an executive department of the United States”); see also Dong v. Smithsonian Inst., 125 F.3d 877, 881 (D.C. Cir. 1997) (“At the very least . . . it seems logical that for an entity to be an authority of the government it must exercise some governmental authority.”) (emphasis omitted); Webster’s Third New International Dictionary 146 (1993) (defining “authority” as “superiority derived from a status that carries with it the right to command and give final decisions”). Thus, section 106(c)’s notification requirement would generally be applicable in an ARC adjudication if that adjudication is a “trial, hearing, or other proceeding.” 50 U.S.C. § 1806(c). Although we are not aware of any judicial precedent discussing whether an employment-related administrative process such as an ARC adjudication would be a “trial, hearing, or other proceeding” for purposes of either section 106(c) or analogous, similarly worded notice statutes, we believe the ordinary meaning of the statutory language encompasses such an adjudication, and the legislative history is consistent with our understanding. We consider first whether the ARC process is a “proceeding” within the meaning of section 106(c). Id. The term “proceeding” has several broad definitions, including, most importantly for present purposes, a “procedural means for seeking redress from a tribunal or agency.” Black’s Law Dictionary 1324 (9th ed. 2009); see also Webster’s Third New International Dictionary at 1807 (defining “proceeding” as “a particular step or series of steps adopted for doing or accomplishing something”); Random House Dictionary of the English Language 1542 (2d ed. 1987) (defining “proceeding” as “a particular action or course or manner of action”). In order for that term to have some independent effect in section 106(c)—which we assume Congress intended, see, e.g., Carcieri v. Salazar, 129 S. Ct. 1058, 1066 (2009) (“‘we are obliged to give effect, if possible, to every word Congress used’”) (quoting Reiter v. 91 35 Op. O.L.C. 86 (2011) Sonotone Corp., 442 U.S. 330, 339 (1979))—the term “other proceeding” in section 106(c) is best read to include processes “before any court, department, officer, agency, regulatory body, or other authority of the United States” that are distinct from, and in addition to, trials and hearings. See 50 U.S.C. § 1806(c). The reference to proceedings before a “department, officer, agency, regulatory body, or other authority” strongly suggests that Congress did not intend to limit the application of this provision to judicial proceedings. See id. Accordingly, although we need not determine the outer bounds of the meaning of “proceeding,” the breadth of the dictionary definition of the term and the surrounding text in section 106(c) lead us to believe that “proceeding” would encompass the ARC’s process for adjudicating an appeal from a decision by a Department of Justice component to revoke an employee’s security clearance. The legislative history is consistent with this broad reading of “proceeding.” When proposed legislation concerning electronic surveillance for foreign intelligence purposes was introduced in 1976, the original version of section 106(c) would have limited its scope to a “trial, hearing, or other proceeding in a Federal or State court,” S. Rep. No. 94 -1035, at 64 (1976); S. Rep. No. 94 -1161, at 41, 65 (1976). When a revised version of the bill was introduced in the next Congress, the language was altered to cover non-judicial proceedings expressly, see S. Rep. No. 95-604, at 56 (1977) (“This provision has been broadened in S. 1566 over its counterpart in S. 3197 by including non-judicial proceedings.”). 7 To be sure, some of the language used in the relevant congressional reports echoes language used in the context of trials or court proceedings. See, e.g., H.R. The relevant draft statutory language discussed in Senate Report 95-604 is similar, although not identical to, the language actually passed a year later. The revised language proposed in 1977 did not explicitly include proceedings before a “regulatory body,” and would have applied not only to authorities of the United States, but also to those of a state or political subdivision. See S. Rep. No. 95-604, at 80. In 1978, the House Permanent Select Committee on Intelligence proposed the language that was adopted later that year and remains the current statutory text—adding the reference to “regulatory body” and focusing the section on federal authorities. See H.R. Rep. No. 95-1283, pt. I, at 9 (1978). Although the House Report setting out the language of section 106(c) as finally adopted explains that the notice requirements are imposed on the states through a separate section, it does not provide a reason for the change, nor does it explain the reason for the addition of the term “regulatory body.” See id. at 89. 7 92 Security Clearance Adjudications by the DOJ Access Review Committee Rep. No. 95-1720, at 31 (1978) (Conf. Rep.) (explaining that the Senate bill “provided for notification to the court when information derived from electronic surveillance is to be used in legal proceedings”); id. (explaining that early notice would allow for “the disposition of any motions concerning evidence derived from electronic surveillance”); S. Rep. No. 95-701, at 62 (1978) (explaining that the notice provision, as well as the provisions governing motions for suppression, “establish the procedural mechanisms by which such information may be used in formal proceedings”) (emphasis added); H.R. Rep. No. 95-1283, pt. I, at 89 (1978) (same). Nevertheless, Congress’s decision to eliminate the reference to federal or state courts in the statutory provision, coupled with the legislative history’s explicit statement that the terms “trial, hearing, or other proceeding” were not limited to judicial proceedings, indicates that references to legal proceedings in the legislative history should not be understood as limiting section 106(c)’s reach to court proceedings. 8 In sum, Congress’s expansion of the language of section 106(c) supports the broad reading indicated by the plain meaning of the phrase “other proceeding,” 9 and we conclude that an ARC adjudication of a Analogous provisions in the statutory scheme governing wiretaps for law enforcement purposes also strongly suggest that Congress intended the phrase “trial, hearing, or other proceeding” to be quite broad. In one provision, using language nearly identical in relevant part to that in section 106(c), Congress authorized any “aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States” to “move to suppress the contents” of interceptions. 18 U.S.C. § 2518(10)(a) (2006). According to the legislative history, “the scope of the provision [wa]s intended to be comprehensive,” although it would not include grand jury proceedings or Congressional hearings. S. Rep. No. 90 -1097, at 106 (1968). The statutory scheme in the law enforcement context uses the narrower phrase— rejected in the FISA notification provision—“trial, hearing, or other proceeding in a Federal or State court” to require that certain information be provided to parties before the contents of a wiretap are used in such proceedings. 18 U.S.C. § 2518(9) (2006). The legislative history of that provision makes clear that the phrase was limited to “adversary type hearings,” and would not include a grand jury hearing. S. Rep. No. 90 -1097, at 105. 9 Whether the term “proceeding” as used in section 106(c) refers only to an adversarial process is a question we need not decide. Cf. In re Grand Jury Proceedings, 856 F.2d 685, 690 & n.9 (4th Cir. 1988) (concluding that notice under section 106(c) was not required in the grand jury context because Congress explicitly included grand juries in certain provisions governing domestic wiretaps, demonstrating that Congress “knew how to include grand jury investigations as proceedings before which notice must be given to overheard persons” and because the legislative history of the domestic wiretap provisions 8 93 35 Op. O.L.C. 86 (2011) Department component’s revocation of an employee’s security clearance is an “other proceeding” within the meaning of FISA’s notification provision. 10 Section 106(c) thus generally requires the government to notify an “aggrieved person” when it intends to use information “obtained or derived from . . . electronic surveillance of that aggrieved person” against that person in such an ARC adjudication. 11 50 U.S.C. § 1806(c). demonstrated that “the term ‘proceeding’ was limited to include only adversary hearings”). The ARC adjudication at issue here is distinguishable from a federal grand jury proceeding because it is an adversarial process in which both sides are provided an opportunity to present their cases to a decision-maker. See 28 C.F.R. § 17.47. 10 Because we conclude that the ARC process is an “other proceeding,” we need not decide whether it is also a “hearing.” We note, however, that the term “hearing” can— and in federal law often does—refer to any “opportunity to be heard or to present one’s side of a case.” Webster’s Third New International Dictionary at 1044; see also Black’s Law Dictionary at 788 (defining a “hearing” for purposes of administrative law as “[a]ny setting in which an affected person presents arguments to a decision-maker”); 1 Richard J. Pierce, Jr., Administrative Law Treatise § 8.2, at 708–12 (5th ed. 2010) (collecting and discussing decisions giving deference to various agency interpretations of statutory requirements for a “hearing”). Although the term may in some instances refer specifically to a particular stage of litigation, see Black’s Law Dictionary at 788 (defining a “hearing” as “[a] judicial session, usu. open to the public, held for the purpose of deciding issues of fact or of law, sometimes with witnesses testifying”), or to the sort of formal, adversary process that ordinarily characterizes a trial, these are not its only meanings. Thus, an ARC adjudication may be a “hearing” as well as a “proceeding.” 11 Section 106 does not specify the form of notice the government must provide to an “aggrieved person.” See David S. Kris & J. Douglas Wilson, National Security Investigations and Prosecutions § 27:11 (2007) (comparing section 106(c) to other statutory search notice requirements). We have been informed that the ordinary government practice is simply to state without elaboration that the United States intends to offer into evidence, or otherwise use or disclose, information obtained or derived from electronic surveillance conducted pursuant to FISA, and not in the first instance to provide any further information, such as the identity of the FISA target, what communications were intercepted, when the information was obtained, or what FISA information the government intends to use. See Caproni Memo, supra note 2, at 2–3. You have not asked us to address the scope of the required notification. We note, however, that if the aggrieved person moves the relevant authority to suppress evidence or information obtained or derived from such electronic surveillance pursuant to section 106(e), section 106(f) authorizes the Attorney General to file an affidavit under oath to the district court in the same district as the authority stating “that disclosure or an adversary hearing would harm the national security of the United States.” 50 U.S.C. § 1806(f) (2006). If the Attorney General files such an affidavit, the district court is to “review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully author- 94 Security Clearance Adjudications by the DOJ Access Review Committee III. Finally, we address a constitutional issue that bears on the statutory question you have asked. The FBI notes that the President’s authority to control access to national security information, and thus to make security clearance determinations for Executive Branch employees, “flows primarily” from the President’s constitutional powers, Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988), and, further, that federal employees do not have a statutory or constitutional right to a security clearance, see id. at 528. In light of these premises, the FBI questions “whether Congress has the legal authority to impose restrictions on the Executive’s authority and decision-making process in the security clearance context,” and suggests that perhaps section 106(c) is therefore unconstitutional as applied to ARC adjudications. Caproni Memo, supra note 2, at 1–2. We agree with the FBI that the President’s constitutional authority to classify information concerning the national defense and foreign relations of the United States and to determine whether particular individuals should be given access to such information “exists quite apart from any explicit congressional grant.” Egan, 484 U.S. at 527; see Whistleblower Protections for Classified Disclosures, 22 Op. O.L.C. 92, 94–99 (1998) (statement of Randolph D. Moss, Deputy Assistant Attorney General, Office of Legal Counsel, before the House Permanent Select Committee on Intelligence). But that does not imply that Congress entirely lacks authority to legislate in a manner that touches upon disclosure of classified information. See EPA v. Mink, 410 U.S. 73, 83 (1973) (“Congress could certainly have provided that the Executive Branch adopt new procedures [concerning information required to be kept secret in the interest of the national defense] or it could have established its own procedures—subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering.”). For example, we believe Congress’s authority to regulate foreign intelligence surveillance ized and conducted.” Id.; see also id. § 1801(g) (2006) (defining “Attorney General” for purposes of FISA to include the Attorney General (or the Acting Attorney General); the Deputy Attorney General; and, upon designation by the Attorney General, the Assistant Attorney General for National Security). 95 35 Op. O.L.C. 86 (2011) under FISA, 12 and to regulate the terms of federal employment, 13 does, as a general matter, permit Congress to impose the notification requirement in section 106(c), even when that requirement reaches proceedings concerning security clearance revocations. The doctrine of separation of powers, however, places some limits on Congress’s authority to participate in regulating the system for protecting classified information. The key question in identifying such limits is whether Congress’s action is “of such a nature that [it] impede[s] the President’s ability to perform his constitutional duty.” Morrison v. Olson, 487 U.S. 654, 691 (1988). Congress may not, for example, provide Executive Branch employees with independent authority to countermand or evade the President’s determinations as to when it is lawful and appropriate to disclose classified information. See Whistleblower Protections for Classified Disclosures, 22 Op. O.L.C. at 100. And, as noted above, Congress’s authority is “subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering.” Mink, 410 U.S. at 83 (citing United States v. Reynolds, 345 U.S. 1 (1953)). Section 106(c), by reaching broadly to require notice in proceedings such as ARC adjudications, could give rise to as-applied constitutional concerns under this separation of powers framework. There may, for example, be cases in which providing notice under section 106(c) would effectively disclose sensitive national security information that is constitutionally privileged. Cf. Whistleblower Protections for Classified DiscloSee generally Memorandum for Edward P. Boland, Chairman, House Permanent Select Comm. on Intelligence, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel (Apr. 18, 1978), in Foreign Intelligence Electronic Surveillance: Hearings on H.R. 5794, H.R. 9745, H.R. 7308, and H.R. 5632 Before the Subcomm. on Legis. of the H. Permanent Select Comm. on Intelligence, 95th Cong. 31 (1978) (explaining that it would be “unreasonable to conclude that Congress, in the exercise of its powers in this area,” could not grant courts the authority under FISA to approve the legality of the Executive’s electronic surveillance); Foreign Intelligence Surveillance Act of 1978: Statement on Signing S. 1566 into Law (Oct. 25, 1978), 2 Pub. Papers of Pres. Jimmy Carter 1853, 1853 (1978) (explaining that FISA “clarifies the Executive’s authority” and noting no constitutional objections to the Act). 13 See, e.g., United Pub. Workers v. Mitchell, 330 U.S. 75, 101 (1947); Ex parte Curtis, 106 U.S. 371, 372–73 (1882). Various statutes regulate the security clearance process more generally. See 50 U.S.C. §§ 435–438 (2006 & Supp. III 2009); 50 U.S.C. §§ 831– 835 (2006) (governing employees of the National Security Agency). 12 96 Security Clearance Adjudications by the DOJ Access Review Committee sures, 22 Op. O.L.C. at 94–99 (noting historical examples of presidential claims of constitutional privilege to protect national security information). Given our understanding that the information provided when notice is required by section 106(c) is quite limited, see supra note 11, we expect such as-applied concerns will arise infrequently. CAROLINE D. KRASS Principal Deputy Assistant Attorney General Office of Legal Counsel 97

Write a legal research memo on the following topic.

Security Clearance Adjudications by the DOJ Access Review Committee The notification requirement in section 106(c) of the Foreign Intelligence Surveillance Act generally applies when the Department of Justice intends to use information obtained from electronic surveillance against an aggrieved person in an adjudication before the Access Review Committee concerning the Department’s revocation of an employee’s security clearance. Compliance with the notification requirement in section 106(c) of the Foreign Intelligence Surveillance Act in particular Access Review Committee adjudications could raise asapplied constitutional questions if such notice would require disclosure of sensitive national security information protected by executive privilege. June 3, 2011 MEMORANDUM OPINION FOR THE CHAIR AND MEMBERS OF THE ACCESS REVIEW COMMITTEE Section 106(c) of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1806(c) (2006), requires the government to notify an “aggrieved person”—that is, a person who was the target of electronic surveillance or whose communications or activities were subject to electronic surveillance, see id. § 1801(k)—whenever the government intends to use “against” that person any information “obtained or derived from [such] electronic surveillance of that aggrieved person” in any “trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States.” You have asked whether this notification requirement applies when the Department of Justice intends to use information obtained from such electronic surveillance against an aggrieved person in an adjudication before the Access Review Committee (“ARC”) concerning the Department’s revocation of an employee’s security clearance. 1 In accord with views we received from the Department’s Justice Management and National Security Divisions, we conclude that the notification requirement generally applies to such 1 See Memorandum for David Barron, Acting Assistant Attorney General, Office of Legal Counsel, from Mari Barr Santangelo, Chair, Access Review Committee, et al., Re: Request for Opinion (Jan. 26, 2010). 86 Security Clearance Adjudications by the DOJ Access Review Committee adjudications. 2 But, as we explain below, compliance with the notification requirement in particular ARC adjudications could raise as-applied constitutional questions if such notice would require disclosure of sensitive national security information protected by executive privilege. I. Section 106(c) of FISA provides: Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information. 50 U.S.C. § 1806(c). Section 106(e), in turn, provides that the aggrieved person “may move to suppress the evidence obtained or derived from such electronic surveillance on the grounds that—(1) the information was unlawfully acquired; or (2) the surveillance was not made in conformity with an order of authorization or approval.” Id. § 1806(e). See E-mail for Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from Stuart Frisch, General Counsel, Justice Management Division, Re: ARC request (Apr. 2, 2010); E-mail for Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from Todd Hinnen, Deputy Assistant Attorney General for Law and Policy, National Security Division, Re: NSD Views Regarding the Applicability of 1806’s Notification Provision to Access Review Committee Proceedings (Mar. 31, 2010). We also received views from the Federal Bureau of Investigation (“FBI”) that did not take issue with the position that section 106(c) applies to ARC adjudications, but that raised other, related issues, two of which we respond to below in note 3 and in Part III. See Memorandum for the Acting Assistant Attorney General, Office of Legal Counsel, from Valerie Caproni, General Counsel, Federal Bureau of Investigation, Re: Request for an OLC Opinion Dated January 26, 2010 by ARC (Aug. 9, 2010) (“Caproni Memo”). 2 87 35 Op. O.L.C. 86 (2011) You have asked us to assume, for purposes of our analysis, that a Department component has revoked an employee’s security clearance; that the loss of security clearance caused the component to discharge the employee; that the employee has appealed the component’s securityclearance revocation decision to the ARC; and that, in the course of the ARC adjudication, the Department intends to justify the clearance revocation with the use of information it has “obtained . . . from an electronic surveillance” of communications that involved the employee. 3 Id. § 1806(c). Accordingly, we will assume that the employee in question would be an “aggrieved person” under section 106(c), 4 and that the government would use “information obtained . . . from an electronic surveillance of” that aggrieved person “against” that person in the ARC adjudication. Id. The function of a security clearance for a Department employee is to designate the employee as someone who is eligible to be afforded access to classified information, in accordance with the standards set forth in part 3 of Executive Order 12968, 3 C.F.R. 391, 397 (1996). See 28 C.F.R. § 17.41(a)(1) (2010). Executive Order 12968 provides in relevant part that eligibility for access to classified materials may be granted only to those employees for whom an appropriate investigation has been completed and whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willing- Because the circumstances you posit involve the use of information obtained directly from the electronic surveillance in question, we need not address the language in section 106(c) that also makes the section applicable when information has been “derived from” electronic surveillance. 4 Section 101(k) of FISA defines an “aggrieved person” as a “person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.” 50 U.S.C. § 1801(k). In other words, “aggrieved person[s]” include only those persons targeted by the surveillance and others who are parties to communications subject to surveillance; as explained in a FISA House Report, “[t]he term specifically does not include persons, not parties to a communication, who may be mentioned or talked about by others.” H.R. Rep. No. 95-1283, pt. I, at 66 (1978). 3 88 Security Clearance Adjudications by the DOJ Access Review Committee ness and ability to abide by regulations governing the use, handling, and protection of classified information. Exec. Order No. 12968, § 3.1(b), 3 C.F.R. at 397. The Executive Order requires that departments and agencies reinvestigate employees on a periodic basis, and it authorizes additional reinvestigation “if, at any time, there is reason to believe” that an employee “may no longer meet the standards for access established” by the Order. Id. § 3.4(b), 3 C.F.R. at 399. 5 The applicable Department of Justice regulations accordingly provide that “[e]ligibility shall be granted only where facts and circumstances indicate access to classified information is clearly consistent with the national security interests of the United States and any doubt shall be resolved in favor of the national security.” 28 C.F.R. § 17.41(b). 6 If a Department component denies an employee a security clearance— that is, if the component determines that the employee is not eligible for access to classified information—or if the component revokes such eligibility, the component must provide the employee “with a comprehensive and detailed written explanation of the basis” for the decision, to the extent that “the national security interests of the United States and other applicable law permit.” Id. § 17.47(a)(1). The component must also inform the employee that she has a right, at her own expense, to be represented by counsel or another representative of her choice. Id. During the thirty days following the date of the component’s written explanation of the clearance denial, the employee may request any “documents, records or reports” from the security clearance investigation, “including the In 2008, section 3(b) of Executive Order 13467 amended Executive Order 12968 in several respects, including by adding a new section 3.5 that provides for “continuous evaluation” of individuals determined to be eligible for access to classified information. See 3 C.F.R. §§ 196, 201 (2009). None of the 2008 amendments is germane to our analysis here. 6 Eligibility for access to classified information—i.e., having a security clearance— does not mean that an employee will necessarily be afforded access to such information. Both Executive Order 12968 and the Department’s regulations provide that eligibility for access is merely one prerequisite to actual access. In particular, an employee may not be provided access to such information without a demonstrated “need-to-know,” see Exec. Order No. 12968, § 1.2(a) & (c)(2), 3 C.F.R. at 392; 28 C.F.R. § 17.41(a)(2), and agencies must “ensure that access to classified information by each employee is clearly consistent with the interests of the national security,” Exec. Order No. 12968, § 1.2(b), 3 C.F.R. at 392; accord 28 C.F.R. § 17.41(c). 5 89 35 Op. O.L.C. 86 (2011) entire investigative file upon which [the] denial or revocation [was] based,” id. § 17.47(a)(2), and within thirty days of such a request the employee must receive copies of the requested materials to the extent such materials would have been provided if requested under the Freedom of Information Act or the Privacy Act and “as the national security interests and other applicable law permit.” Id. § 17.47(a)(3). Thirty days after receiving the written explanation of the denial or the requested documents under section 17.47(a)(3)—whichever is later—the employee may file a written reply and request a review of the adverse determination. Id. § 17.47(b). Thereafter, the employee must be provided a written notice of the results of the requested review, including the reasons for the results, along with the identity of the deciding authority and notice of the right to appeal an adverse decision to the ARC. The employee then may, within thirty days of receiving that written notice, appeal an adverse decision to the ARC and may request the opportunity to appear personally before the ARC and to present relevant documents, materials, and information. Id. § 17.47(d). The Department Security Officer must also be afforded an opportunity to present relevant materials to the ARC in support of the security clearance denial or revocation, and may appear personally if the employee does so. Id. § 17.47(g). The ARC is composed of the Deputy Attorney General, the Assistant Attorney General for National Security, and the Assistant Attorney General for Administration—each of whom may name a designee, subject to the Attorney General’s approval. See 28 C.F.R. § 17.15(b). When an employee appeals an adverse security clearance decision, the ARC must make a written “determination of eligibility for access to classified information . . . as expeditiously as possible.” Id. § 17.47(f). Although the regulations describe this determination as a “discretionary security decision” by the ARC, they also mirror the regulations governing the component’s initial decision by providing that the ARC may conclude that an employee should be granted eligibility for access to classified materials “only where facts and circumstances indicate that access to classified information is clearly consistent with the national security interest of the United States”; any doubt is to be “resolved in favor of the national security.” Id. The ARC’s decision is final unless the Attorney General requests a recommendation from the ARC and “personally exercises appeal authority.” Id. § 17.15(a). 90 Security Clearance Adjudications by the DOJ Access Review Committee II. Because the ARC is composed of three high-ranking Department officials or their designees and its decisions are final unless the Attorney General personally exercises appeal authority over them, an ARC adjudication challenging revocation of a security clearance takes place before a “department, officer[s], . . . or other authority of the United States.” 50 U.S.C. § 1806(c); see 28 U.S.C. § 501 (2006) (“[t]he Department of Justice is an executive department of the United States”); see also Dong v. Smithsonian Inst., 125 F.3d 877, 881 (D.C. Cir. 1997) (“At the very least . . . it seems logical that for an entity to be an authority of the government it must exercise some governmental authority.”) (emphasis omitted); Webster’s Third New International Dictionary 146 (1993) (defining “authority” as “superiority derived from a status that carries with it the right to command and give final decisions”). Thus, section 106(c)’s notification requirement would generally be applicable in an ARC adjudication if that adjudication is a “trial, hearing, or other proceeding.” 50 U.S.C. § 1806(c). Although we are not aware of any judicial precedent discussing whether an employment-related administrative process such as an ARC adjudication would be a “trial, hearing, or other proceeding” for purposes of either section 106(c) or analogous, similarly worded notice statutes, we believe the ordinary meaning of the statutory language encompasses such an adjudication, and the legislative history is consistent with our understanding. We consider first whether the ARC process is a “proceeding” within the meaning of section 106(c). Id. The term “proceeding” has several broad definitions, including, most importantly for present purposes, a “procedural means for seeking redress from a tribunal or agency.” Black’s Law Dictionary 1324 (9th ed. 2009); see also Webster’s Third New International Dictionary at 1807 (defining “proceeding” as “a particular step or series of steps adopted for doing or accomplishing something”); Random House Dictionary of the English Language 1542 (2d ed. 1987) (defining “proceeding” as “a particular action or course or manner of action”). In order for that term to have some independent effect in section 106(c)—which we assume Congress intended, see, e.g., Carcieri v. Salazar, 129 S. Ct. 1058, 1066 (2009) (“‘we are obliged to give effect, if possible, to every word Congress used’”) (quoting Reiter v. 91 35 Op. O.L.C. 86 (2011) Sonotone Corp., 442 U.S. 330, 339 (1979))—the term “other proceeding” in section 106(c) is best read to include processes “before any court, department, officer, agency, regulatory body, or other authority of the United States” that are distinct from, and in addition to, trials and hearings. See 50 U.S.C. § 1806(c). The reference to proceedings before a “department, officer, agency, regulatory body, or other authority” strongly suggests that Congress did not intend to limit the application of this provision to judicial proceedings. See id. Accordingly, although we need not determine the outer bounds of the meaning of “proceeding,” the breadth of the dictionary definition of the term and the surrounding text in section 106(c) lead us to believe that “proceeding” would encompass the ARC’s process for adjudicating an appeal from a decision by a Department of Justice component to revoke an employee’s security clearance. The legislative history is consistent with this broad reading of “proceeding.” When proposed legislation concerning electronic surveillance for foreign intelligence purposes was introduced in 1976, the original version of section 106(c) would have limited its scope to a “trial, hearing, or other proceeding in a Federal or State court,” S. Rep. No. 94 -1035, at 64 (1976); S. Rep. No. 94 -1161, at 41, 65 (1976). When a revised version of the bill was introduced in the next Congress, the language was altered to cover non-judicial proceedings expressly, see S. Rep. No. 95-604, at 56 (1977) (“This provision has been broadened in S. 1566 over its counterpart in S. 3197 by including non-judicial proceedings.”). 7 To be sure, some of the language used in the relevant congressional reports echoes language used in the context of trials or court proceedings. See, e.g., H.R. The relevant draft statutory language discussed in Senate Report 95-604 is similar, although not identical to, the language actually passed a year later. The revised language proposed in 1977 did not explicitly include proceedings before a “regulatory body,” and would have applied not only to authorities of the United States, but also to those of a state or political subdivision. See S. Rep. No. 95-604, at 80. In 1978, the House Permanent Select Committee on Intelligence proposed the language that was adopted later that year and remains the current statutory text—adding the reference to “regulatory body” and focusing the section on federal authorities. See H.R. Rep. No. 95-1283, pt. I, at 9 (1978). Although the House Report setting out the language of section 106(c) as finally adopted explains that the notice requirements are imposed on the states through a separate section, it does not provide a reason for the change, nor does it explain the reason for the addition of the term “regulatory body.” See id. at 89. 7 92 Security Clearance Adjudications by the DOJ Access Review Committee Rep. No. 95-1720, at 31 (1978) (Conf. Rep.) (explaining that the Senate bill “provided for notification to the court when information derived from electronic surveillance is to be used in legal proceedings”); id. (explaining that early notice would allow for “the disposition of any motions concerning evidence derived from electronic surveillance”); S. Rep. No. 95-701, at 62 (1978) (explaining that the notice provision, as well as the provisions governing motions for suppression, “establish the procedural mechanisms by which such information may be used in formal proceedings”) (emphasis added); H.R. Rep. No. 95-1283, pt. I, at 89 (1978) (same). Nevertheless, Congress’s decision to eliminate the reference to federal or state courts in the statutory provision, coupled with the legislative history’s explicit statement that the terms “trial, hearing, or other proceeding” were not limited to judicial proceedings, indicates that references to legal proceedings in the legislative history should not be understood as limiting section 106(c)’s reach to court proceedings. 8 In sum, Congress’s expansion of the language of section 106(c) supports the broad reading indicated by the plain meaning of the phrase “other proceeding,” 9 and we conclude that an ARC adjudication of a Analogous provisions in the statutory scheme governing wiretaps for law enforcement purposes also strongly suggest that Congress intended the phrase “trial, hearing, or other proceeding” to be quite broad. In one provision, using language nearly identical in relevant part to that in section 106(c), Congress authorized any “aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States” to “move to suppress the contents” of interceptions. 18 U.S.C. § 2518(10)(a) (2006). According to the legislative history, “the scope of the provision [wa]s intended to be comprehensive,” although it would not include grand jury proceedings or Congressional hearings. S. Rep. No. 90 -1097, at 106 (1968). The statutory scheme in the law enforcement context uses the narrower phrase— rejected in the FISA notification provision—“trial, hearing, or other proceeding in a Federal or State court” to require that certain information be provided to parties before the contents of a wiretap are used in such proceedings. 18 U.S.C. § 2518(9) (2006). The legislative history of that provision makes clear that the phrase was limited to “adversary type hearings,” and would not include a grand jury hearing. S. Rep. No. 90 -1097, at 105. 9 Whether the term “proceeding” as used in section 106(c) refers only to an adversarial process is a question we need not decide. Cf. In re Grand Jury Proceedings, 856 F.2d 685, 690 & n.9 (4th Cir. 1988) (concluding that notice under section 106(c) was not required in the grand jury context because Congress explicitly included grand juries in certain provisions governing domestic wiretaps, demonstrating that Congress “knew how to include grand jury investigations as proceedings before which notice must be given to overheard persons” and because the legislative history of the domestic wiretap provisions 8 93 35 Op. O.L.C. 86 (2011) Department component’s revocation of an employee’s security clearance is an “other proceeding” within the meaning of FISA’s notification provision. 10 Section 106(c) thus generally requires the government to notify an “aggrieved person” when it intends to use information “obtained or derived from . . . electronic surveillance of that aggrieved person” against that person in such an ARC adjudication. 11 50 U.S.C. § 1806(c). demonstrated that “the term ‘proceeding’ was limited to include only adversary hearings”). The ARC adjudication at issue here is distinguishable from a federal grand jury proceeding because it is an adversarial process in which both sides are provided an opportunity to present their cases to a decision-maker. See 28 C.F.R. § 17.47. 10 Because we conclude that the ARC process is an “other proceeding,” we need not decide whether it is also a “hearing.” We note, however, that the term “hearing” can— and in federal law often does—refer to any “opportunity to be heard or to present one’s side of a case.” Webster’s Third New International Dictionary at 1044; see also Black’s Law Dictionary at 788 (defining a “hearing” for purposes of administrative law as “[a]ny setting in which an affected person presents arguments to a decision-maker”); 1 Richard J. Pierce, Jr., Administrative Law Treatise § 8.2, at 708–12 (5th ed. 2010) (collecting and discussing decisions giving deference to various agency interpretations of statutory requirements for a “hearing”). Although the term may in some instances refer specifically to a particular stage of litigation, see Black’s Law Dictionary at 788 (defining a “hearing” as “[a] judicial session, usu. open to the public, held for the purpose of deciding issues of fact or of law, sometimes with witnesses testifying”), or to the sort of formal, adversary process that ordinarily characterizes a trial, these are not its only meanings. Thus, an ARC adjudication may be a “hearing” as well as a “proceeding.” 11 Section 106 does not specify the form of notice the government must provide to an “aggrieved person.” See David S. Kris & J. Douglas Wilson, National Security Investigations and Prosecutions § 27:11 (2007) (comparing section 106(c) to other statutory search notice requirements). We have been informed that the ordinary government practice is simply to state without elaboration that the United States intends to offer into evidence, or otherwise use or disclose, information obtained or derived from electronic surveillance conducted pursuant to FISA, and not in the first instance to provide any further information, such as the identity of the FISA target, what communications were intercepted, when the information was obtained, or what FISA information the government intends to use. See Caproni Memo, supra note 2, at 2–3. You have not asked us to address the scope of the required notification. We note, however, that if the aggrieved person moves the relevant authority to suppress evidence or information obtained or derived from such electronic surveillance pursuant to section 106(e), section 106(f) authorizes the Attorney General to file an affidavit under oath to the district court in the same district as the authority stating “that disclosure or an adversary hearing would harm the national security of the United States.” 50 U.S.C. § 1806(f) (2006). If the Attorney General files such an affidavit, the district court is to “review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully author- 94 Security Clearance Adjudications by the DOJ Access Review Committee III. Finally, we address a constitutional issue that bears on the statutory question you have asked. The FBI notes that the President’s authority to control access to national security information, and thus to make security clearance determinations for Executive Branch employees, “flows primarily” from the President’s constitutional powers, Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988), and, further, that federal employees do not have a statutory or constitutional right to a security clearance, see id. at 528. In light of these premises, the FBI questions “whether Congress has the legal authority to impose restrictions on the Executive’s authority and decision-making process in the security clearance context,” and suggests that perhaps section 106(c) is therefore unconstitutional as applied to ARC adjudications. Caproni Memo, supra note 2, at 1–2. We agree with the FBI that the President’s constitutional authority to classify information concerning the national defense and foreign relations of the United States and to determine whether particular individuals should be given access to such information “exists quite apart from any explicit congressional grant.” Egan, 484 U.S. at 527; see Whistleblower Protections for Classified Disclosures, 22 Op. O.L.C. 92, 94–99 (1998) (statement of Randolph D. Moss, Deputy Assistant Attorney General, Office of Legal Counsel, before the House Permanent Select Committee on Intelligence). But that does not imply that Congress entirely lacks authority to legislate in a manner that touches upon disclosure of classified information. See EPA v. Mink, 410 U.S. 73, 83 (1973) (“Congress could certainly have provided that the Executive Branch adopt new procedures [concerning information required to be kept secret in the interest of the national defense] or it could have established its own procedures—subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering.”). For example, we believe Congress’s authority to regulate foreign intelligence surveillance ized and conducted.” Id.; see also id. § 1801(g) (2006) (defining “Attorney General” for purposes of FISA to include the Attorney General (or the Acting Attorney General); the Deputy Attorney General; and, upon designation by the Attorney General, the Assistant Attorney General for National Security). 95 35 Op. O.L.C. 86 (2011) under FISA, 12 and to regulate the terms of federal employment, 13 does, as a general matter, permit Congress to impose the notification requirement in section 106(c), even when that requirement reaches proceedings concerning security clearance revocations. The doctrine of separation of powers, however, places some limits on Congress’s authority to participate in regulating the system for protecting classified information. The key question in identifying such limits is whether Congress’s action is “of such a nature that [it] impede[s] the President’s ability to perform his constitutional duty.” Morrison v. Olson, 487 U.S. 654, 691 (1988). Congress may not, for example, provide Executive Branch employees with independent authority to countermand or evade the President’s determinations as to when it is lawful and appropriate to disclose classified information. See Whistleblower Protections for Classified Disclosures, 22 Op. O.L.C. at 100. And, as noted above, Congress’s authority is “subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering.” Mink, 410 U.S. at 83 (citing United States v. Reynolds, 345 U.S. 1 (1953)). Section 106(c), by reaching broadly to require notice in proceedings such as ARC adjudications, could give rise to as-applied constitutional concerns under this separation of powers framework. There may, for example, be cases in which providing notice under section 106(c) would effectively disclose sensitive national security information that is constitutionally privileged. Cf. Whistleblower Protections for Classified DiscloSee generally Memorandum for Edward P. Boland, Chairman, House Permanent Select Comm. on Intelligence, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel (Apr. 18, 1978), in Foreign Intelligence Electronic Surveillance: Hearings on H.R. 5794, H.R. 9745, H.R. 7308, and H.R. 5632 Before the Subcomm. on Legis. of the H. Permanent Select Comm. on Intelligence, 95th Cong. 31 (1978) (explaining that it would be “unreasonable to conclude that Congress, in the exercise of its powers in this area,” could not grant courts the authority under FISA to approve the legality of the Executive’s electronic surveillance); Foreign Intelligence Surveillance Act of 1978: Statement on Signing S. 1566 into Law (Oct. 25, 1978), 2 Pub. Papers of Pres. Jimmy Carter 1853, 1853 (1978) (explaining that FISA “clarifies the Executive’s authority” and noting no constitutional objections to the Act). 13 See, e.g., United Pub. Workers v. Mitchell, 330 U.S. 75, 101 (1947); Ex parte Curtis, 106 U.S. 371, 372–73 (1882). Various statutes regulate the security clearance process more generally. See 50 U.S.C. §§ 435–438 (2006 & Supp. III 2009); 50 U.S.C. §§ 831– 835 (2006) (governing employees of the National Security Agency). 12 96 Security Clearance Adjudications by the DOJ Access Review Committee sures, 22 Op. O.L.C. at 94–99 (noting historical examples of presidential claims of constitutional privilege to protect national security information). Given our understanding that the information provided when notice is required by section 106(c) is quite limited, see supra note 11, we expect such as-applied concerns will arise infrequently. CAROLINE D. KRASS Principal Deputy Assistant Attorney General Office of Legal Counsel 97

Write a legal research memo on the following topic.

Paperwork Reduction Act of 1980 The provisions of the Paperwork Reduction Act of 1980 giving the Office of Management and Budget authority to review and approve agency “information collection requests” do not apply to reporting and recordkeeping requirements contained in agency regulations which came into existence prior to the effective date of the 1980 Act. However, new regulations containing reporting or rec­ ordkeeping requirem ents must be developed in accordance with the procedures set forth in 44 U S.C . § 3504(h). Section 3504(h) provides the exclusive procedure for OM B review and possible disapproval of information collection requirements contained in or specifically required by agency regulations; the more stringent procedures for OMB review set forth in 44 U.S C. §§ 3504(c) and 3507 apply only to agency information collection requests issued pursuant to or deriving from regulations. The language and history of other provisions of the Paperwork Reduction Act, as well as its general schem e, support the conclusion that OM B has no authority under either § 3504(h) or § 3507 to review and disapprove existing agency regulations. Nonetheless, OMB is given substantial authority over existing regulations by other provisions of the Act, including § 3504(b). June 22, 1982 MEMORANDUM OPINION FOR THE COUNSEL TO THE VICE PRESIDENT AND FOR THE COUNSEL TO THE DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET This responds to your request for our opinion concerning the application of the Paperwork Reduction Act (the Act) to regulations that impose paperwork bur­ dens.1This question has arisen, you have explained, because the Department of the Treasury has taken the position that Internal Revenue Service (IRS) regula­ tions which impose paperwork burdens are not subject to those provisions of the Act directing the Office of Management and Budget (OMB) to review and approve an “information collection request.” That term is defined by the Act as covering “a written report form, application form, schedule, questionnaire, reporting or recordkeeping requirement, or other similar method calling for the collection of information.”2 Under the Act, OMB is directed to review and 1The foperwork Reduction Act, Pub. L N o. 511, 96th Cong., 2d Sess (1980), 94 Stat. 2812, 44 U.S C §§ 3501-3520, took effect on April 1, 1981 In this opinion, the words “regulation” and “rule" will be used interchangeably. See 5 U.S C § 551(4). 2 Section 3502(11) of the Act, 44 U S C. § 3502(11) (Supp. V 1981). Rirther citations to the Act will exclude the additional reference to Title 44 of the 1981 Supplement to United States Code Annotated, which includes the same section numbers as the Act itself. 388 approve each “information collection request,” and to assign to each a control number that signifies OMB approval.3 The Act provides that no person shall be subject to any penalty for failing to maintain or to provide information pursuant to an information collection request that has not itself been assigned the neces­ sary control number.4 In the present case, the Treasury Department argues that the portion of any regulation which imposes a paperwork burden is not an “information collection request” for purposes of the Act. In response, you have argued that the portion of a regulation imposing a paperwork burden is an “information collection request,” and therefore is subject to OMB review and approval, and the assignment of a control number under the Act. In addressing this issue, our analysis will proceed in four sections. First, we will summarize the Act’s provisions that are relevant to this dispute. Second, we will set forth the central arguments of the Department of the Treasury, on the one hand, and OMB, on the other hand, as advanced in several memoranda addressed to this office.5 Third, we will set forth our own analysis of the statute and its legislative history. Fourth, we will discuss in particular the additional arguments advanced on behalf of OMB’s position in your memorandum of April 23, 1982. As we will explain in considerably more detail in the balance of this memoran­ dum, we have concluded that requirements for the maintenance and provision of information contained in regulations that came into existence prior to the effec­ tive date of the Act are not subject to the information collection request approval procedures contained in §§ 3504(c) and 3507 of the Act, but that new regulations must be developed in accordance with the OMB coordination process created by § 3504(h). OMB is, however, given broad powers by the Act to initiate and review proposals for changes in existing regulations and to coordinate and improve agency information practices whether contained in regulations or elsewhere. The IRS is subject to OMB’s authority in this regard to the same extent as other Executive Branch agencies. The Paperwork Reduction Act is a broad charter for OMB to manage, coordinate and improve federal information prac­ tices limited, of course, by existing agency authority over the substantive content of policies and programs. I. Summary of the Act The Paperwork Reduction Act of 1980 supplanted the Federal Reports Act of 1942.6The purpose of the 1942 statute was to minimize the burdens of furnishing “information” that were placed by the federal government on business enterprises and others.7 “Information” was defined in the 1942 statute as “facts obtained or solicited by the use of written report forms, application forms, schedules, 3 See §§ 3504(c)(3)(A) (the OMB Director’s information collection request clearance functions "shall include . . ensuring that all information collection requests . display a control number”) & 3507(f) 4 See § 3512 5 For the sake of convenience, we will refer to the position expressed in your memoranda as “OMB's position," for those memoranda are concerned pnmarily with the powers that may be exercised by OMB under the Act 6 The latter statute was 56 Stat 1078, 44 U S C §§ 3501-3511 (1976) 1 See 44 U.S C § 3501 (1976). 389 questionnaires, or other similar methods calling either for answers to identical questions from ten or more persons other than agencies . . . of the United States or for answers to questions from agencies . . . of the United States which are to be used for statistical compilations of general public interest.” (Emphasis added.)8 The Paperwork Reduction Act is described in the report of the Senate Commit­ tee on Governmental Affairs as a “rewrite” of the 1942 statute in response to renewed concerns in the late 1970s about the burdens imposed on the private sector by the government in its collection of information.9 One of the specific changes made by the 1980 Act is its elimination of an exemption for the IRS— and certain other agencies—that had existed under the Federal Reports Act.10 This is one of the chief reasons why the issue before us has arisen at this time. The 1980 Act’s general purposes are to minimize “the Federal paperwork burden for individuals, small businesses, State and local governments, and other persons,” minimize the cost to the federal government of collecting, maintaining, using and disseminating information and “make uniform Federal information policies and practices.” § 3501. The term “burden” is defined as “the time, effort, or financial resources expended by persons to provide information to a Federal agency.”11 Many of the 1980 Act’s key provisions apply to an “information collection request.” The definition of an “information collection request” covers not only the items covered by the 1942 statute, such as a written report form, application form, schedule, questionnaire, or other similar method for collecting informa­ tion, but also a “reporting or recordkeeping requirement.” Thus, as noted earlier, the 1980 statute defines an “information collection request” as “a written report form, application form, schedule, questionnaire, reporting or recordkeeping requirement, or other similar method calling for the collection of information.” (Emphasis added.)12The Act defines the “collection of information” as the use of any of the foregoing methods to obtain facts or opinions in response to “identical questions posed to, or identical reporting or recordkeeping requirements im­ posed on, ten or more persons, other than agencies . . . of the United States” or “answers to questions posed to agencies. . . of the United States which are to be used for general statistical purposes.” (Emphasis added.)13 A “recordkeeping requirement” is defined as “a requirement imposed by an agency on persons to maintain specified records.”14The term “reporting requirement” is not separately defined. In addition to including a “reporting or recordkeeping requirement” in the definition of an “information collection request,” the Paperwork Reduction Act “ 44 U.S C. § 3502 (1976) See H R Rep No 2722, 77th Cong., 2d Sess (1942), S Rep. No 1651, 77th C o n g .,2d Sess (1942); 88 Cong. Rec 9165(1942). See also Emerson Electric Co v Schlesinger, 609 F2d 898, 905 (8th Cir. 1979) (the “two-fold purpose" of the Federal Reports Act was to “eliminate unnecessary duplication of effort by federal agencies in collecting information and to reduce the paperwork burden on persons supplying the information"), Shell Oil Co v Department o f Energy, A ll F Supp. 413, 419-20 (D Del. 1979) 9 S. Rep No 930, 96th Cong , 2d Sess 13 (1980) 10 See 44 U.S C § 3507 (1976) 11 Section 3502(3) 12 Section 3502(11). 13 Section 3502(4). 14 Section 3502(16) 390 strengthened considerably the role of OMB in overseeing agencies’ information collection activities.15 Under § 3504(a), the OMB director “shall develop and implement Federal information policies, principles, standards, and guidelines and shall provide direction and oversee the review and approval of information collection requests” and “the reduction of the paperwork burden.” The general information policy functions of the Director are set forth in § 3504(b). These functions include, inter alia, “developing and implementing uniform and con­ sistent information resources management policies and overseeing the develop­ ment of information management principles” (§ 3504(b)(1)), as well as “ initia­ ting and reviewing proposals for changes in legislation, regulations, and agency procedures to improve information practices . . (§ 3504(b)(2)) (emphasis added). Also, the Director is charged with “coordinating, through the review of budget proposals and as otherwise provided in this section [§ 3504], agency information practices” (§ 3504(b)(3)) and “evaluating agency information man­ agement practices to determine their adequacy and efficiency, and to determine compliance of such practices with the policies, principles, standards, and guidelines promulgated by the Director” (§ 3504(b)(5)). Under § 3504(d), the Director is assigned certain statistical policy and coordi­ nation functions, including the development of “long range plans for the im­ proved performance of Federal statistical activities and programs,” “developing and implementing Government-wide policies, principles, standards, and guidelines concerning statistical collection procedures and methods” and “evaluating statistical program performance and agency compliance with Gov­ ernment-wide policies, principles, standards, and guidelines.” Section 3504(e) assigns to the Director broad records management functions, which include promoting the coordination of records management with the information pol­ icies, principles and guidelines established by OMB under this Act. Section 3504(f) assigns to the Director certain privacy functions, which involve the development and implementation of policies and guidelines regarding informa­ tion disclosure and confidentiality in compliance with the Privacy Act, 5 U.S.C. § 552a. Section 3504(g) assigns to the Director functions involving automatic data processing and telecommunications, including the development of federal policies and guidelines to govern the federal activities in these areas. Taken as a whole, this array of explicit powers granted to OMB under § 3504 is a formidable expression of Congress’ intent to give OMB the tools necessary to act as the central authority in the oversight of the federal government’s information man­ agement processes. Of particular importance to the issues considered in this opinion are the authorities granted the OMB Director under §§ 3504(c) and 3507, including, inter alia, the power to review and approve “information collection requests proposed by agencies” under § 3504(c)(1), to determine whether the collection of information is “necessary for the proper performance of the functions of the agency” under § 3504(c)(2), and to ensure that all information collection 15 See § 3504 391 requests, among other things, “display a control number” assigned to them by OMB under §§ 3504(c)(3)(A) and 3507. In addition, the OMB Director was required, upon enactment of the statute, to “set a goal to reduce the then existing burden of Federal collections of information by 15 per centum by October 1, 1982,” and “for the year following, [to] set a goal to reduce the burden which existed upon enactment by an additional 10 per centum. . . .”16 The Act’s “control number” requirement in §§ 3504(c)(3)(A) and 3507 as­ sumes special significance in light of two additional provisions. Under § 3507(f), an agency “shall not engage in a collection of information without obtaining from the Director a control number to be displayed upon the information collection request.” Also, under § 3512, “no person shall be subject to any penalty for failing to maintain or provide information to any agency if the information collection request involved was made after December 31, 1981, and does not display a current control number assigned by the Director, or fails to state that such request is not subject” to the Act. The statute specifically directs that “[e]ach agency shall be responsible fo r. . . complying with the information policies, principles, standards, and guidelines prescribed by the Director.”17More particularly, the Act requires that an “agency shall not conduct or sponsor the collection of information unless, in advance of the adoption or revision of the request for collection of such information,” the agency has, inter alia, “submitted to the Director [of OMB] the proposed information collection request [and] copies of pertinent regulations and other related materials” and the Director “has approved the proposed information collection request, or the period for review of information collection requests by the Director provided under subsection (b) [60 days, with a possible additional 30 days] has elapsed.”18 In addition to these provisions pertaining to an “information collection re­ quest” as defined in the Act, there is a provision, § 3504(h), dealing specifically with regulations. Since the relationship between § 3504(h) and the procedures set forth in §§ 3504(c) and 3507 regarding an “information collection request” is the major issue in the present dispute, we will explain the requirements of § 3504(h) in some detail. Each agency is directed to forward to the OMB Director a copy of “any proposed rule which contains a collection cf information requirement” as soon as practicable, and no later than the publication of a notice of proposed rulemaking in the Federal Register. (Emphasis added.)19 Within 60 days after the notice of proposed rulemaking is published in the Federal Register, the OMB Director “may file public comments pursuant to the standards set forth in section 3508 on the collection cf information requirement contained in the proposed rule.” (Emphasis added.)20 When a final rule is published, “the agency shall explain 16 Section 3505(1) 17 Section 3506(a). 18 Sections 3507(a)(2) & (3) 19 Section 3504(h)( 1) 20 Section 3504(h)(2). Section 3508 provides that "[bjefore approving a proposed information collection request, the Director shall determine whether the collection of information by an agency is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility . . . ” 392 how any collection cf information requirement” contained therein responds to any comments made by the Director or the public, or explain why the agency rejected those comments. (Emphasis added.)21 The OMB Director is not authorized to disapprove any collection of informa­ tion requirement contained in an agency rule if he received notice of the rule and if he failed to comment on it within 60 days of publication of the notice of proposed rulemaking.22 However, “[n]othing in this section” may be read as barring the Director, in his discretion: (A) from disapproving any information collection request which was not specifically required by an agency rule; (B) from disapproving any collection cf information require­ ment contained in an agency rule, if the agency failed to comply with the requirements of paragraph (1) of this subsection; or (C) from disapproving any collection of information require­ ment contained in a final agency rule, if the Director finds within sixty days of the publication of the final rule that the agency’s response to his comments filed pursuant to paragraph (2) of this subsection was unreasonable; [or] (D) from disapproving any collection cf information require­ ment where the Director determines that the agency has substan­ tially modified in the final rule the collection of information requirement contained in the proposed rule where the agency has not given the Director the information required in paragraph (1), with respect to the modified collection cf information require­ ment, at least sixty days before the issuance of the final rule. (Emphasis added.)23 The subsection requires the OMB Director to “make publicly available any decision to disapprove a collection of information requirement contained in an agency rule, together with the reasons for such decision.”24 Furthermore, § 3504(h)(8) states that the subsection “shall apply only when an agency pub­ lishes a notice of proposed rulemaking and requests public comments.” Al­ though, as noted earlier, the phrase “information collection request” is defined in § 3502(11), the recurring phrase in § 3504(h), “collection of information re­ quirement,” is not separately defined in the statute. II. Arguments Advanced by the Treasury Department and OMB We have received a number of memoranda setting forth both the Treasury Department’s and OMB’s positions regarding the Paperwork Reduction Act’s 21 Section 3504(h)(3) 22 See § 3504(h)(4). 23 Section 3504(h)(5). 24 Section 3504(h)(6) 393 application to regulations that impose paperwork burdens.25 In general, the Treasury Department’s view is that the only provision in the Act setting forth procedures for OMB review and possible disapproval of informational aspects of regulations is § 3504(h). In contrast, OMB’s position is that not only § 3504(h), but also provisions dealing with an “information collection request,” including § 3507, set forth procedures for OMB review of regulations that impose paper­ work burdens. We will summarize in turn each of these opposing interpretations. A . Treasury Department Position The Treasury Department argues that the only provision in the Act setting forth specific procedures for OMB review and possible disapproval of aspects of regulations imposing paperwork burdens is § 3504(h).26 If Treasury is correct in this regard, the exclusive, specific procedural mechanism establishing OMB’s responsibilities for the review of regulations would be that created by § 3504(h), as opposed to the mechanism for OMB’s review of forms and questionnaires established by §§ 3507 and 3504(c).27 The Treasury Department advances three major arguments on behalf of its interpretation. The first argument rests on the language and purposes of § 3504(h) itself. Treasury notes that § 3504(h) establishes a detailed procedural scheme for OMB review of collection of information requirements in regula­ tions, and that no other provision in the statute deals in such a way with regulations. Treasury contends that this fact supports the inference that Congress intended § 3504(h) to provide the exclusive set of specified procedures for OMB 25 We have received the following memoranda from Treasury: (1) Memorandum from Cora Beebe, Assistant Secretary, Department of the Treasury, (o Christopher DeMuth, Administrator for Information and Regulatory Affairs, OM B, dated Dec. 24, 1981, (2) Memorandum from Kenneth Gideon. Chief Counsel, IRS, to Cora Beebe, dated Dec 23, 1981, (3) Memorandum from Arnold Intrater, Assistant General Counsel, Treasury Department, to Cora Beebe, dated Dec. 29, 1981, (4) Letter to Assistant Attorney General Theodore B. Olson from Peter Wallison, General Counsel, Treasury Department, dated Feb 8, 1982; (5) Memorandum to Assistant Attorney General Theodore B Olson from Peter Wallison, General Counsel, Treasury Department, also dated Feb. 8, 1982, and (6) undated staff memorandum, received in March 1982, responding to certain questions we asked at a meeting with Treasury representatives on March 9, 1982. We have received the following memoranda setting forth OM B’s position (1) Memorandum from C. Boyden Gray, Counsel to the Vice President, and M ichael J. Horowitz, Counsel to the Director, Office of Management and Budget, to Assistant Attorney General Theodore B Olson, dated Jan. 15, 1982, containing your opinion request, (2) a draft staff memorandum dated March 1, 1982, responding to Treasury’s letter and memorandum of Feb 8, 1982; and (3) Memorandum from C Boyden Gray, Counsel to the Vice President, and Michael J. Horowitz, Counsel to the Director, Office of Management and Budget, to Assistant Attorney General Theodore B. Olson, dated April 23, 1982, responding to a memorandum from Assistant Attorney General Olson to Robert Bedell, Deputy General Counsel, OM B, dated Apnl 5, 1982, which identified certain issues raised in various submissions this office had received In addition, we have received a memorandum generally supporting the Treasury position from Eric Fygi, Deputy General Counsel, Department of Energy, dated Mar. 26, 1982. 26 Section 3504(b)(2) provides that the “general information policy functions” of the OMB Director shall include “initiating and reviewing proposals for changes in legislation, regulations, and agency procedures to improve information practices . . . (Emphasis added.) Thus, Treasury could not— and does not— argue that § 3504(h) is the only provision dealing at all with regulations. Rather, Treasury contends that the only specific procedures governing OMB review and possible disapproval of informational aspects of regulations under the Act are those set forth in § 3504(h). As discussed earlier, § 3504(b) gives OMB rather broad review, oversight, and coordination powers with regard to regulations. 27 There are a number of differences in the two sets of procedures Section 3504(h), for instance, does not provide for the assignment of control numbers to regulations Section 3507, along with § 3504(c), does require OMB to review and approve information collection requests and to ensure that such requests display control numbers. 394 review and possible disapproval of informational aspects of regulations under the Act. This inference is also said to be supported by the notion that if § 3504(h) were not the exclusive set of specified procedures for OMB review of regulations, but that instead §§ 3504(c) and 3507 also could apply to regulations imposing paperwork burdens, § 3504(h) would be rendered essentially superfluous. In support of this conclusion, Treasury relies in addition on the statement by Senator Kennedy when he introduced on the Senate floor an amendment to § 3504(h) that ultimately was enacted. Under § 3504(h) of the bill as reported out of the Senate Committee on Governmental Affairs, OMB was directed to ensure that agencies, in developing rules and regulations, used efficient methods for collecting information.28 Senator Kennedy expressed concern about § 3504(h) as reported out of the Committee because it “ would permit the Director of OMB to overturn a rule which was adopted by an agency without providing any pro­ cedural rights for the people affected by the rule or for the agency that promul­ gated the rule.” 29 Accordingly, Senator Kennedy introduced an amendment to § 3504(h) containing the detailed set of procedures that we summarized in the previous section. In view of this history, the Treasury Department contends that if a provision of the Act which lacks the procedural formalities set forth in § 3504(h)— namely, § 3507—were available for use as the mechanism for OMB review and potential disapproval of informational aspects of regulations, the fundamental purpose of the amendment to § 3504(h) would be frustrated. Treasury’s second major contention is that the statute’s provisions other than § 3504(h) support its reading of § 3504(h). Section 3507(a)(2)(A) provides that no agency shall conduct or sponsor the collection of information unless “ the agency . . . has submitted to the Director [of OMB] the proposed information collection request, copies of pertinent regulations and other related materials as the Director may specify.” (Emphasis added.) Treasury suggests that this lan­ guage establishes a clear distinction between an “ information collection re­ quest,” on the one hand, and “ related materials” such as “pertinent regula­ tions,” on the other hand. This distinction is said to buttress the idea that regulations should be treated as entirely separate from an “ information collection request” subject to review under § 3507. Furthermore, Treasury’s argument depends on a comparison of the first and last sentences of § 3507(c), as follows: Any disapproval by the Director, in whole or in part, cf a proposed information collection request cf an independent reg­ ulatory agency, or an exercise of authority under section 3504(h) or 3509 concerning such an agency, may be voided, if the agency by a majority vote cf its members overrides the Director’s disap­ proval or exercise of authority. The agency shall certify each override to the Director, shall explain the reasons for exercising 28 See S Rep No 930. 96lh Cong., 2d Sess. 88 (1980). 29 126Cong.Rec 30178 (1980). The language of § 3504(h) as contained in the predecessor Senate bill is quoted at pages 18 and 19 infra. 395 the override authority. Where the override concerns an informa­ tion collection request, the Director shall without further delay assign a control number to such request, and such override shall be valid for a period cf three years. (Emphasis added.) Section 3507(c) was included in the Act to provide a means by which so-called independent agencies could preserve a measure of their “ independence” by overriding OMB disapprovals of their actions under the Act.30 In the first sentence of § 3507(c), reference is made to a “ disapproval . . . of a proposed information collection request . . ., or an exercise of authority under section 3504(h) or 3509. . . . ” (Emphasis added.)31 In the last sentence, only a disap­ proval of an information collection request is referred to: "Where the override concerns an information collection request, the Director shall without further delay assign a control number to such request. . . .” (Emphasis added.) The omission in the last sentence of any reference to exercises of authority under § 3504(h) or § 3509 is viewed by Treasury as supporting its position that Congress never intended that control numbers should be assigned to regulations under § 3504(h), or, indeed, § 3509. Under this interpretation, the last sentence of § 3507(c) is a purposeful reflection of Congress’ intent to keep entirely separate the procedures governing regulations set forth in § 3504(h), on the one hand, and the procedures governing an “ information collection request” set forth in § 3507 (including the control number requirement), on the other hand.32 Treasury’s third main argument rests on certain passages in the legislative history. For instance, Treasury finds support in the explanation of an “ informa­ tion collection request” in the Senate Committee report, which states that the term “refers to the actual instrument used for a collection of information.”33 Treasury argues that a form or questionnaire issued pursuant to a regulation could be an “ actual instrument” for the collection of information, but that it is an unduly strained use of words to say that a portion of a regulation itself could be such an “ actual instrument.” 10 See H.R. Rep No. 835. 96th Cong , 2d Sess 21-22 (1980), S. Rep No. 9 3 0 ,96th Cong., 2d Sess 14-15,47 (1980) 31 Section 3509 provides that the OMB Director “ may designate a central collection agency to obtain information for two or more agencies if the Director determines that the needs of such agencies for information will be adequately served by a single collection agency, and such sharing of data is not inconsistent with any applicable law” 32 Treasury also argues that certain language in § 3504(h) supports its position For instance, Treasury notes that § 3504(h)(2) slates that within 60 days after publication in the Federal Register of a notice of proposed rulemaking, the OMB Director “ may file public comments pursuant to the standards set forth in section 3508 on the collection of information requirement contained in the proposed rule ” The standards set forth in § 3508 apply when the Director is deciding whether to approve a proposed “ information collection request ” Treasury argues that if a collection of information requirement for purposes of § 3504(h) were to be treated in the same manner as an information collection request under § 3507, as OMB suggests, it would have been unnecessary for Congress to cross-reference § 3508 in § 3504(h)(2). In addition, Treasury notes that § 3504(h)(5)(A) specifically provides that nothing in § 3504(h) prevents the OMB Director “ from disapproving any information collection request which was not specifically required by an agency rule ” Treasury suggests that by including this provision in § 3504(h), Congress reaffirmed that the disapproval of an “ information collection request” is an entirely separate matter from the review of a “ collection of information requirement" under § 3504(h) 33 S Rep No 930, 96th Cong , 2d Sess. 39 (1980) 396 In addition, Treasury relies on a statement by Congressman Horton during debate on the bill shortly before it passed the House of Representatives. Con­ gressman Horton’s comments focused on § 3504(h), as follows: OMB's authority to review and comment on portions cf proposed regulations which require the collection of information is supple­ mental to that agency's authority to approve or reject specific information collection requests. No matter what its action may have been with regard to a proposed regulation, OMB may freely approve or reject any specific collection request deriving from such a regulation. (Emphasis added.)34 Treasury stresses that Congressman Horton apparently distinguished between OMB’s authority “ to review and comment on portions of proposed regulations” under § 3504(h), on the one hand, and OMB’s authority “to approve or reject specific information collection requests,” on the other hand (emphasis added). This distinction is said to support Treasury’s basic position that provisions authorizing OMB to “ approve or reject” an information collection request, including § 3507, are necessarily separate from and should not be confused with the procedures forOMB “ review and comment” on regulations under § 3504(h). B. OMB Position The position of the Office of Management and Budget and the Office of the Vice President, as reflected in your memoranda to us, is that Treasury wrongly interprets the Act when it concludes that § 3504(h) is the only provision setting forth specific procedures governing OMB review of regulations imposing paper­ work burdens. A central argument supporting OMB’s position is that the statute’s definition of an “ information collection request” is broad enough to encompass portions of regulations that impose reporting or recordkeeping requirements. The definition is as follows: . . . a written report form, application form, schedule, question­ naire, reporting or recordkeeping requirement, or other similar method calling for the collection of information. (Emphasis added.)35 OMB argues that a regulation which contains a “reporting or recordkeeping requirement” by definition contains an “ information collection request” subject to the procedures of § 3507.36 34 126 Cong Rec 31228 (1980). 33 Section 3502(11) 36 Assuming arguendo that a regulation could contain an “ information collection request” as defined in § 3502(11) of the Act, a question would arise whether the entire regulation should be deemed such a “ request,” or whether only some segregable portion of a regulation containing the request, if any, should be so viewed For purposes of this opinion, we will speak about the possibility of a regulation “containing" an “ information collection request” (when describing OMB's position) without deciding this additional question, which we need not decide for purposes of our analysis 397 OMB buttresses its position by referring to a statement in the Senate Commit­ tee report that “ [t]he imposition of a federal paperwork burden does not depend on how the questions are asked of the respondent, but rather on the fact the Federal government has asked or sponsored the asking of questions.” 37 This statement is said to support the view that the “ actual instrument” used for the collection of information need not be a form, but could be an oral comment, a regulation, or any other means of communicating the request. Furthermore, OMB contends that an interpretation of the Act which does not treat reporting or recordkeeping requirements in regulations as information collection requests subject to § 3507 would frustrate the Act’s underlying pur­ pose, namely, the reduction of the paperwork burden imposed by the federal government. One of the ways the Paperwork Reduction Act sought to achieve this purpose was to eliminate the exemption that had applied to the IRS and certain other entities under the Federal Reports Act.38 OMB argues that the elimination of the IRS exemption is inconsistent with Treasury’s view that IRS regulations may be reviewed by OMB only under § 3504(h). In support of its view that all regulations containing reporting or recordkeeping requirements must be assigned control numbers under § 3507, OMB refers to passages in the legislative history stating that each “information collection request” should be assigned a control number. For example, OMB refers to a statement in the Senate Committee report that “ no agency shall engage in a collection of information without obtaining from the Director a control number to be displayed upon the information collection request.” (Emphasis added.)39 Another passage in the report relied upon by OMB states: The Director’s responsibility to ensure all collections of informa­ tion display a control number corresponds to the requirement of section 3507(0 which states an agency shall not engage in a collection of information without obtaining a control number from the Director. (Emphasis added.)40 In response to Treasury’s discussion of the Senate’s amendment to § 3504(h), OMB suggests that the amendment’s purposes can be achieved under its inter­ pretation of the Act. OMB argues that all that § 3504(h) requires is that once new rulemaking commences, the procedures of § 3504(h) are to be followed. This is consistent, OMB suggests, with its view that under § 3507 OMB can review and approve (or not approve) information collection requests contained in regulations that already were in existence when the Act became effective. If OMB disap­ proves such a request in such a regulation, under OMB’s view the agency has two choices: it could either revise the information collection request in accordance 37 S. Rep. No 930, 96th Cong., 2d Sess 39 (1980). As we discuss later in this memorandum, this statement is taken somewhat out of context by OMB In context, it appears to relate exclusively to the distinction between oral and written requests for information 38 See S. Rep. No 930, 96th Cong , 2d Sess. 13 (1980); H R. Rep. No. 835, 96th Cong., 2d Sess. 19 (1980). 39 S Rep. No 930, 96th Cong , 2d Sess 48 (1980). 40 Id at 42 398 with OMB’s concerns, assuming that this could be done without altering the underlying regulation, or initiate new rulemaking to change the regulation in order to accommodate OMB’s position.41 Under OMB’s interpretation, only the latter action would trigger the procedures of § 3504(h). In addition, OMB disputes the Treasury Department’s reading of the last sentence of § 3507(c), which provides that “ [w]here the override concerns an information collection request, the Director shall without further delay assign a control number to such request, and such override shall be valid for a period of three years.” As noted earlier, the first sentence of the subsection refers to OMB disapprovals of a proposed information collection request or an exercise of OMB’s authority under §§ 3504(h) or 3509. OMB argues that the introductory phrase in the last sentence, “ [w]here the override concerns an information collection request,” implicitly distinguishes between OMB disapproval of an information collection request— whether or not subject to §§ 3504(h )—and an exercise of authority under § 3509, which pertains to the designation of a central collection agency and thus has no bearing on the clearance of information requests. In short, OMB’s position is that § 3507(c) lends no support to Trea­ sury’s view that the Act distinguishes between the review of information collec­ tion requests (and the assignment of control numbers thereto), on the one hand, and exercises of authority under § 3504(h), on the other hand.42 III. Analysis of the Act’s Language and Legislative History Before developing our own analysis of the statute, it appears necessary to clarify precisely the issue before us. As we understand the fundamental dispute presented to us for resolution, Treasury and OMB are not in disagreement about the status of forms, schedules, or questionnaires which are issued pursuant to statutes or regulations and which impose paperwork burdens. Both appear to be in agreement—and we concur—that such forms, schedules, or questionnaires in general are “ information collection requests” under the Act subject, among other things, to § 3507.43 Furthermore, Treasury does not contend that regulations imposing paperwork burdens are not subject to any of the Act’s requirements. Rather, Treasury argues, as stated above, that regulations are subject to the OMB review-and-possible-disapproval mechanism stated in the Act in § 3504(h), not to the mechanism set forth in §§ 3504(c) and 3507. That is the specific issue we must address. In analyzing this issue, we will turn first to § 3504(h) and its legislative history. We then will discuss other provisions of the statute. Finally, we will examine the Act’s general scheme. 41 See Memorandum from C Boyden Gray and Michael Horowitz, entitled “ Paperwork Reduction A ct," at page 4 (Jan. 15, 1982) This memorandum also argues that regulations proposed and promulgated after the Act’s effective date ultimately are to be assigned control numbers under § 3507 after the regulations have been promulgated in a manner consistent with § 3504(h). 42 The arguments set forth in the memorandum of C Boyden Gray and Michael Horowitz dated April 23, 1982, will be discussed in greater detail in section IV below. 43 The ultimate decision, of course, whether or not a particular form is an “ information collection request” will turn on the facts of each case as analyzed in light of the Act’s provisions. 399 A. Section 3504(h) (1) The House and Senate bills. A full understanding of § 3504(h) requires knowledge of the provision’s history. Both of the bills reported out of the responsible committees of the House of Representatives and the Senate contained a § 3504(h), which in both cases granted OMB broad powers to review regula­ tions imposing paperwork burdens. Section 3504(h) of the House bill, H.R. 6410, provided: (h) Other functions of the Director shall include ensuring that, in developing rules and regulations, agencies— (1) utilize efficient methods to collect, use, and disseminate necessary information; (2) provide an early and substantial opportunity for the pub­ lic to comment on proposed means of collecting informa­ tion related to such rules and regulations; and (3) make assessments of the consequences of alternative methods of implementing the statutory goals of such rules and regulations (including alternative methods of collecting information). (Emphasis added.)44 Section 3504(h) of the Senate bill, S. 1411, provided: (h) The Director shall, subject to section 3507(c) of this chap­ ter,45 ensure that, in developing rules and regulations, agen­ cies— (1) utilize efficient means in the collection, use, and dis­ semination of information; (2) provide an early and meaningful opportunity for the public to comment on proposed means for collection of information; and (3) assess the consequences of alternative means for the collection, use, and dissemination of information. (Em­ phasis added.)46 The meaning of these predecessor provisions may be confirmed by reference to the relevant committee reports. Both reports explained that § 3504(h) in the respective bills constituted a general authorization for OMB to assure that agencies, in developing regulations, minimized the paperwork burden imposed by the federal government. As the report of the House Committee on Govern­ ment Operations put it: Under H.R. 6410, the OMB Director is to ensure that the agencies, in developing rules and regulations, use efficient meth44 H R Rep. No. 835. 96th Cong . 2d Sess 44 (1980). Section 3507(c). which gives independent regulatory agencies the power to override OMB disapprovals under the Act. is quoted above 4,1 S. Rep No. 930. 96th C ong., 2d Sess. 88 (1980). 400 ods to collect, use, and disseminate the necessary information. The Committee views this function as similar to the present OMB function of overseeing agency activities under Executive Order 12044 [which was the Carter Administration Executive Order dealing with regulatory reform].47 A question was raised during the hearings as to whether the bill’s language meant the OMB office was to have a regulatory reform function. Regulatory reform is a separate issue from the function assigned by H .R. 6410. Under the bill, OMB is assigned the responsibility for reviewing, [sic] reporting and recordkeep­ ing requirements imposed on the public by regulations. Regulato­ ry reform, on the other hand, deals with major modifications in agency responsibilities. The Committee intends that OMB con­ tinue its effort in overseeing the information aspects of Govern­ ment regulations. However, the assignment cf regulatory reform to the Office of Federal Information Policy would dilute the information functions assigned under this bill. (Emphasis added.)48 As the report of the Senate Committee on Governmental Affairs explained: Section 3504(h) of the bill mandates the Director to ensure that in developing rules and regulations agencies take steps to mini­ mize the information burden of regulations. The Committee views this function as similar to the present OMB function to 47 Executive Order No. 12044, 43 Fed Reg. 12661 (1978), entitled Improving Government Regulations, contained a number of provisions calling upon agency heads to improve the analysis underlying new regulations, particularly regulations that met the order’s criteria of “ significant” regulations in economic or other terms (§ 2(e)) For instance, a regulatory analysis was required for significant regulations Such an analysis was to include a careful examination of possible alternatives to the approach ultimately proposed by the agency and a justification of the choice that was made (§§ 2 & 3). In addition, the order required agencies periodically lo review their existing regulations to determine whether they were achieving the order’s goals, which included, among other things, minimizing compliance costs, paperwork and other burdens on the public (§§ 4 & 1(e)) Section 5 gave general powers of oversight of the order’s provisions to OMB Sections 5(a) and 5(b) required agencies to prepare reports for implementing the order and to submit the reports to OMB for review and approval. Section 5(c) provided that OMB “ shall assure the effective implementation of this Order." Accordingly, Executive Order No 12044 required agencies to review new and existing regulations in terms of such goals as minimizing paperwork and other burdens on the public, and it assigned to OMB general authonty to assure the achievement of these goals The Order did not set forth specific procedures by which OMB was to conduct its oversight activities. 48 H.R.Rep. No 835,96thCong , 2d Sess. 9 (1980) A later passage in the House Committee report underscored that the bill was intended to cover regulations imposing paperwork burdens This point was made in the context of a discussion of the bill’s definition of the “ collection of information," which included a reference to a “ reporting and recordkeeping requirement.” The report noted that the Securities and Exchange Commission had strongly recommended that the bill “ be amended to narrow the definition of ‘collection of information’ to exclude reporting required in connection with statutonly authorized [sic] regulatory, enforcement, or oversight efforts ” The Committee agreed with the SEC about the close relationship between policymaking and information management issues, but added that regulatory agencies in the Executive Branch, such as the Environmental Protection Agency, “ have been able to justify to OMB their need for information used to establish policy or for other purposes.” The Committee concluded that the independent regulatory agencies “ should also be capable of doing so.” The Committee confirmed that its broad definition of a “ collection of information” was intended to clarify the term ’s coverage “to force SEC and any others who might apply a restrictive interpretation to comply with statutory information collection clearance requirements. The Committee fully expects [the] SEC to comply with the ‘more extensive’ definition of collection of information as contained in H R 6410 ” Id at 23 401 oversee agency activities under Executive Order 12044.49 The importance of this linkage between OM B’s existing responsibility for overseeing the regulatory process with the closely related inform ation management functions assigned by the bill was stressed by the Comptroller General in his comments to the Committee[:] This relationship between the regulatory process and infor­ mation management is reflected in OM B’s existing Office of Regulatory and Information Policy. We believe this com­ bination of functions has worked well. The p rin cip a l areas o f grow th in Federal p a p erw o rk burdens are a sso cia ted with new regulations. Therefore, it seems appropriate to retain the existing link between the functions for controlling both regulatory and paperwork burdens. The Committee intends that the Director of OMB continue efforts to oversee the information management and burden aspects of government regulations. This em phasis has great prom ise fo r m inim izing the explosion c f p aperw ork dem ands on the pu blic becau se new regulations are causing the greatest growth in infor­ m ation requirem ents. However, the C om m ittee does not intend that ‘regu latory reform’ issues which go beyond the scope c f inform ation m anagem ent an d burden b e assign ed to the office by the D irector. Recent initiatives such as the trucking and airline deregulations are examples of regulatory reform issues whose assignment to the Office would dilute the information function assigned by this bill. (Emphasis added.)50 Accordingly, both the House and the Senate Committees confirmed that § 3504(h) in the House and Senate bills was designed to ensure that agencies, in developin g regulations, minimized the paperwork burden associated with the regulations. Although OMB’s function under § 3504(h) was acknowledged to have some similarities with the oversight role performed during the Carter Administration under Executive Order No. 12044, it was sharply distinguished by both Committees from general “ regulatory reform” activities. It is notewor­ thy that the Senate Committee report specifically referred to the burdens imposed by “ new” regulations as the principal problem to be addressed. (2) Debate in the Senate and House: the amendment of § 3504(h). If § 3504(h) had been enacted as it was reported out of the Senate and House Committees, it not only would have authorized OMB to review the development of agency rules in terms of paperwork considerations, but also would have done so without specifying in any detail the procedural steps to be taken in the course of such review. However, § 3504(h) was significantly amended on the Senate floor on November 19, 1980. Senator Kennedy provided the following statement of 49 For a description of Executive Order N o. 12044, see note 47, supra 50 S. Rep No 930, 96th C ong., 2d Sess. 8 -9 (1980); see also id. at 15. 402 reasons for his amendment, which passed the Senate in the form in which he proposed it and finally was enacted: A s reported out c f the Governm ental Affairs C om m ittee, the legislation raises som e serious concerns about the role o f the Office o f M anagem ent an d B udget (OM B) in overseeing the information collection activities c f Federal agencies. While I certainly support strong executive management of the Federal regulatory system, this management objective should be tem­ pered by other legitimate public policy concerns. This legislation would perm it the D irector o f OMB to overturn a rule which was adopted by an agen cy without providing any p rocedu ral rights fo r the peo p le affected b y the rule o r f o r the agency that prom u lgated the rule. Thus, even if any agency has complied with all the appropriate procedural requirements for public notice and com­ ment, and has spent years compiling an adequate agency record, this legislation would permit OMB to overturn that agency deci­ sion without even requiring OMB to justify its decision publicly. This violates basic notions o f fairn ess upon which the Adm in­ istrative Procedure A ct is based, as w ell a s concepts c f due p rocess em bodied in the U .S. Constitution. Mr. President, I have proposed several amendments, accepted by the Governmental Affairs Committee, which deal with this, and other concerns. . . . Most importantly, / have spon sored an am endm ent which lim its the authority cfO M B to overturn rep o rt­ ing, recordkeeping, and other information collection require­ m ents ad o p ted by a Federal agen cy in a rulem aking proceeding. This am endm ent establish es a p rocedu ral scheme which governs O M B ’s relationship with the Federal agencies. First, an agency is required to notify OMB as soon as possible, but no later than the date upon which a notice of proposed rulemaking is published in the Federal Register, of a proposed information collection requirement. Second, the Director of OMB is required to comment on the agency’s information collection requirements in the proposed rule within 60 days or forfeit its rights to review those requirements at a later time. In these comments, the Director of OMB would suggest alternative methods of collecting information more efficiently. Third, when the agency adopts its final rule, it must respond to those comments by modifying the information collection require­ ments or by explaining why it rejected OMB’s suggestions. If the agency does not forward a copy of its proposed informa­ tion collection requirements to OMB, OMB retains its right to review that request even though it has not filed comments during 403 the rulemaking proceedings. Moreover, if an agency intends to m odify substantially the information collection requirements which were in the proposed rule, this amendment insures that OMB has at least 60 days to comment on these modified require­ ments before the final rule is issued. This am endm ent w ou ld provide the final po w er to OM B to overturn an agen cy’s recordkeepin g o r reporting requirem ents on ly i f it m ade a public fin din g th at the agency's response was ‘u n reason able.’ . . . This am endm ent would not affect O M B ’s righ t to review form s o r o th er information collection requests which were not specifi­ ca lly requ ired b y an a g en cy rule. In essen ce, th is am endm ent is d esig n ed to fo rc e the agen cy and O M B to co n sider information collection requirem ents ea rly in the p ro c e ss w ith a meaningful opportu n ity f o r p u b lic com m ent on O M B ’s altern atives. (Emphasis added.)51 Several aspects of the foregoing explanation are worthy of note. First, the amendment to § 3504(h) was specifically designed to establish a set of pro­ cedures by which OMB would review and comment on information collection requirements in proposed rules. The amendment was offered in response to the concern that, absent such procedures, OMB could “ overturn a rule which was adopted by an agency without providing any procedural rights for the people affected by the rule or for the agency that promulgated the rule.” 52 A central aspect of the amendment’s procedural scheme was the requirement that OMB state publicly any decision to overturn an information collection requirement in a proposed rule in order to be consistent with what Senator Kennedy described as “ basic notices of fairness upon which the Administrative Procedure Act is based, as well as concepts of due process embodied in the U.S. C onstitution.” 126 Cong. Rec. 30178 (1980). Also, under the amended § 3504(h), OM B’s power ultimately to overturn an agency’s recordkeeping or reporting requirement in a proposed rule is limited to certain circumstances, such as when OMB makes a public finding that the requirement is “ unreasonable.” In addition, Senator Kennedy distinguished OMB’s power to review regula­ tions under § 3504(h) from OM B’s power to review “ forms or other information collectio n requ ests which were not specifically required by an agency ru le!’ (Emphasis added.) This distinction supports the proposition that the review under § 3504(h) of collection of information requirements required by, or con­ tained in, a rule should not be confused with the review under other provisions of the statute of an “ information collection request” not specifically required by a rule. This distinction also is reflected in a statement supporting Senator Ken­ nedy’s amendment made by Senator Danforth, who, after noting that the amend­ ment’s purpose was to “ prevent OMB from undoing a collection of information 51 126 Cong. Rec 30178 (1980) 52 Id 404 requirement specifically contained in an agency rule after that requirement has gone through the administrative rulemaking process if the OMB Director ignores the rulemaking process,” added: / note, however, that this lim itation on OM B's authority is confined to requirem ents specifically contained in agency rules. It does not disturb O M B ’s authority to block information collection requests issued pursuant to rules, neither is it license to agencies to avoid OMB review of paperkeeping requirements bootstrapped to vague requirements in agency rules. (Emphasis added.)53 As Senator Danforth thus confirmed, § 3504(h) as amended does not disturb OM B’s power to reject information collection requests issued pursuant to rules, as distinct from information collection requirements specifically con tain ed in rules. On December 1, 1980, the House of Representatives debated the bill as amended by the Senate.54 The most extensive explanation offered on the House floor of the amended § 3504(h) was the following by Congressman Horton: The most significant difference between the two measures [the Senate and House bills] is the inclusion of a new subsection 3504(h) in the Senate version. The Senate provision is innovative in that it attem pts to link the regulation-w riting p ro cess w ith the collection o f information by the F ederal Governm ent. The p ro v i­ sion d oes this by m andating that OM B review and com m ent on each p ro p o sed regulation which contains a requirem ent f o r the collection o f inform ation. Because subsection 3504(h) which the Senate has added to the bill is extremely complex, I think it is essential to clarify three points about it: First, O M B ’s authority to review an d com m ent on p o rtio n s c f p ro p o se d regulations which require the collection o f information is supplem ental to that a g en cy’s authority to approve o r reject specific information collection requests. N o m a tter w hat its a c ­ tion m ay have been with regard to a p ro p o se d regulation, OMB m ay fre e ly approve o r reject any specific collection request deriv­ ing fro m such a regulation. Second, in reviewing proposed regulations, OMB may disap­ prove any collection requirement which it finds ‘unreasonable’— which is to say, not of sound judgment in the opinion of the OMB Director. The purpose of § 3504(h)(5)(C) [the provision em­ powering OMB to disapprove “ unreasonable” requirements] is 53 126 Cong. Rec 30179 (1980) 54 See 126 Cong Rec. 31227 (1980) (remarks of Chairman Brooks) (noting that one of the major respects in which the Senate bill differed from the House bill was that the former “ insures that OMB's review of agency information collection requests will be coordinated with agency rulemaking procedures established by the Administrative Procedure Act or other similar legislation .” ) 405 not to restrict unduly the ability of OMB to act, but to insure that in acting, OMB [does] have justification for what it does. Third, decisions by OMB under this provision are not reviewable in court. Section 3504(h)(9) states that there shall be no judicial review of any OMB decision to approve or not act upon a proposed regulation; because the power to approve implies the power to disapprove, this paragraph in effect forbids court chal­ lenge of any decision to pursue any of the options open to OMB— approval, disapproval, or inaction. (Emphasis added.)55 O f particular significance in Congressman Horton’s explanation of § 3504(h) is the distinction between OMB’s authority to “ review and comment” on portions of regulations specifically requiring the collection of information under § 3504(h), on the one hand, and OMB’s authority to “ approve or reject” information collection requests deriving from regulations, on the other hand. As Congressman Horton observed: “ No matter what its action may have been in regard to a proposed regulation, OMB may freely approve or reject any specific collection request deriving from such a regulation.” This legislative history of § 3504(h) as amended strongly suggests that it was intended as the exclusive mechanism for OMB review of regulations containing information collection requirements. If this were not so, the provision’s amend­ ment by itself would not have been sufficient to assure that OMB would follow certain prescribed procedures when reviewing rules under the statute. It seems clear from the legislative record that the amendment’s sponsor, Senator Kennedy, considered that the amendment of § 3504(h) would be sufficient to achieve this purpose. Furthermore, the remarks of Senator Kennedy, Senator Danforth, and Con­ gressman Horton— who provided the most extensive comments on the amended § 3504(h) in the legislative history— all draw a distinction between OMB review under § 3504(h) of information collection requirements contained in or specifi­ cally requ ired b y regulations, on the one hand, and OM B’s approval or disap­ proval of information collection requests issued pursuant to or deriving from regulations, on the other hand. This distinction supports the notion that § 3504(h) was intended as the exclusive mechanism for OMB review and possible disapproval of aspects of regulations specifically imposing information burdens, as distinguished from OMB review of information collection requests issued under, pursuant to, or entirely apart from regulation. Finally, this history strongly suggests that § 3504(h) and only § 3504(h )— not § 3507— sets forth the procedures governing regulations for purposes of this Act. It would be entirely inexplicable for Congress on the one hand to establish a detailed and specific process for OMB participation in developing new regula­ tions based on a manifest concern with fairness, due process, and APA pro­ cedures, while on the other hand allowing existing and longstanding regulations 55 126 Cong. Rec. 31228 (1980) 406 to be swept aside or partially overturned without any of the same procedural safeguards. The amendment to § 3504(h) does not make sense if § 3507 could be used with respect to either “ new” or “ old” regulations. (3) The language of § 3504(h) as enacted. Even though nothing in § 3504(h) specifically states that it provides the exclusive procedure for OMB review of collection of information requirements in rules, the provision’s language, in our view, confirms that view. First, although the Act gives OMB broad powers of a general nature over federal information practices, § 3504(h) is the only provision in the statute explicitly establishing a process for OMB review and possible disapproval of collection of information requirements in rules. It would be anomalous for Congress to set forth such a detailed procedure and, at the same time, to permit OMB to follow an entirely different procedure under another provision, such as § 3507, without cross-referencing this possibility in § 3504(h). Although not dispositive, the principle of statutory construction, “ expressio unius est exclusioalterius,” has some application here. This principle may be translated as “ the expression of one thing is the exclusion of another.” Black’s Law Dictionary 521 (5th ed. 1979). Under this maxim, when a statute or other legal instrument expressly includes certain things in one provision— such as the procedure in § 3504(h)— the drafters usually may be understood to have intended to exclude other things not expressly addressed— such as a parallel but markedly different procedure for OMB review of regulations under § 3507— from the coverage of that provision. Id. Although the maxim is by no means conclusive, such a result is normally presumed, absent affirmative contrary indication in a statute’s language or legislative history.56 The application of the maxim is more persuasive when the language of the statute, its legislative history, and other factors point to the same result. Furthermore, § 3504(h) establishes a relatively detailed set of procedures for OMB review of portions of regulations containing collection of information requirements. These procedures would be rendered essentially superfluous if OMB could, at its option, review any given regulation under § 3507, which lacks the procedural requirements of § 3504(h). If this were possible, it is difficult to understand why Congress would have included § 3504(h) in the statute. In addition, certain details of the language of § 3504(h) buttress the conclusion that it provides the exclusive procedural mechanism for OMB review of regula­ tions expressly stated in the Act. Section 3504(h)(2) provides that within 60 days after a notice of proposed rulemaking is published in the Federal Register, the OMB Director “ may file public comments pursuant to the stan dards se t fo rth in section 3 5 0 8 on the collection of information requirement contained in the proposed rule” (emphasis added). The standards set forth in § 3508 are the ones applied by OMB before approving a proposed “ information collection request,” 56 See, e.g ., Morris v. Gressette, 432 U.S. 491, 506 n 22 (1977); Wachovia Bank & Trust Co. v. National Student Marketing Corp., 650 F 2d 342, 354—55 (D C Cir. 1980), cert, denied. 452 U.S. 954 (1981), 2A, C Sands, Sutherland Statutory Construction § 47.25 (4th ed. 1973) 407 such as under § 3507.57 If the drafters of § 3504(h) had intended that OMB could review regulations under § 3507, it would have been unnecessary for them to include in § 3504(h)(2) a specific reference to the standards contained in § 3508, for in that case, the standards set forth in § 3508 would have applied automatically. It also is noteworthy that under § 3508, the OMB Director “ may give the agency and other interested persons an opportunity to be heard or to submit statements in writing.” Section 3508 also contains no requirement that OMB provide a public statement of its views. In contrast, § 3504(h)(2) authorizes the OMB Director only to file public comments about a collection of information requirement in a proposed rule. This contrast further indicates that the procedures of § 3504(h) are fundamentally distinguishable from those applying under other provisions of the Act, including §§ 3507 and 3508. Also, § 3504(h)(5)(A) provides that nothing in § 3504(h) prevents the OMB Director, in his discretion, “ from disapproving any information collection re­ q u est which was not specifically requ ired b y an agen cy ru le" (emphasis added). This subsection thus distinguishes between a collection of information require­ ment reviewed by OMB under § 3504(h), on the one hand, and OMB approval or disapproval of an “ information collection request” that is not “ specifically required” by an agency rule, on the other hand. As noted earlier, such a distinction supports the conclusion that § 3504(h) applies to collection of infor­ mation requirements required by or contained in regulations, whereas other provisions of the Act, including § 3507, apply to an “ information collection request” made pursuant to (or entirely apart from) a regulation. B . O th er P rovision s c f the Act The foregoing interpretation o f § 3504(h), which in our view is most consist­ ent with its language and legislative history, appears consistent with the statute’s other major provisions, which we will discuss in numerical sequence. (1) Section 3501: “Purpose.” Section 3501 states in general terms the Act’s basic purpose, which includes minimizing the federal paperwork burden and coordinating, integrating, and making more uniform federal information policies and practices. OMB argues that the Act’s purpose would be undercut by an interpretation of the Act which construed § 3504(h) as the exclusive mechanism for OMB review o f regulations containing collection of inform ation requirements. We have several difficulties with this argument. First, it is exceedingly general. Although the statement of the Act’s purpose is quite broad and sweeping 57 Section 3508 provides Before approving a proposed information collection request, the Director shall determine whether the collection of information by an agency is necessary for the proper performance of the functions of the agency, including w hether the information will have practical utility. Before making a determina­ tion the D irector may give the agency a n d other interested persons an opportunity to be heard or to submit statements in writing. To the extent, if any, that the Director determines that the collection of information by an agency is unnecessary, for any reason, the agency may not engage in the collection of the information. (Emphasis added.) 408 O and would support an expansive role for OMB, the broad purpose cannot serve to overcome the specific procedures in the Act itself. In fact, the Act has multiple aims, including that of providing in § 3504(h) for a set of procedures that will structure OM B’s review of proposed regulations in a manner consistent with the public procedures governing rulemaking. That particular end must be respected along with the general purpose of reducing federal paperwork burdens and coordinating federal information practices. Furthermore, it does not appear that an interpretation of § 3504(h) as providing the exclusive procedures for OMB’s review of regulations would prevent OMB from effectively discharging its duties of reducing federal paperwork burdens. First, OMB retains full authority under § 3507 to review all forms, question­ naires, and similar information collection requests issued pursuant to rules without having to follow the procedures set forth in § 3504(h). Second, under § 3504(h) itself, OMB ultimately can disapprove a collection of information requirement in certain circumstances.58 Third, as noted above, OMB is given additional, general authorities under other provisions of the Act, including the other subsections of § 3504, to initiate and review proposals for changes in regulations and agency procedures in order to improve government information practices. OMB’s primary concern may be that Treasury’s interpretation of § 3504(h) as the exclusive set of procedures for OMB review of regulations effectively would mean that OMB cannot review regulations such as those promulgated by the IRS that were already in existence when the Act became effective. This would be the case because § 3504(h) rather clearly applies only to rules proposed and promul­ gated after the Act became effective.59 If § 3504(h) is the only provision specifying procedures for OMB review of regulations, it follows that the Act does not establish an express procedural mechanism for OMB review and potential disapproval of regulations already in existence when the Act became effective. OMB objects to an interpretation leading to such a “gap” in the Act’s coverage. However, to the extent that this is a “gap” in coverage, it is not inconsistent with legislative history. As noted above, the Act’s legislative history supports the proposition that Congess believed that “new” regulations caused the greatest paperwork burdens.60 For that reason, it is neither surprising nor anomalous for Congress to have concentrated on fashioning a specific procedure for OMB review of regulations proposed and promulgated after the Act’s effective date. If, on the other hand, Congress has intended to reopen existing regulations— or at 58 See §§ 3504(h)(5)(B), (C) and (D) 59 This is so because § 3504(h) only deals with rules once they are “proposed ” “This subsection shall apply only when an agency publishes a notice of proposed rulemaking and requests public comments ” § 3504(h)(8) furthermore, there would be no practical way for § 3504(h) to apply retroactively to rules already promulgated in final form when the Act became effective That would require submitting all existing rules that impose paperwork requirements to a new notice and comment process. This is simply not contemplated by § 3504(h). Thus, we agree with OMB that § 3504(h) establishes a set of procedures that applies only to rules proposed and promulgated after the A ct’s effective date 60 See S. Rep. No. 9 3 0 ,96th Cong , 2d Sess. 8-9(1980). In the passage from the Senate Committee report quoted above, it is stated that the bill’s emphasis on OMB oversight of the development of regulations “has great promise for minimizing the explosion of paperwork demands on the public because new regulations are causing the greatest growth in information requirements” (emphasis added). 409 least those that contained some reporting or recordkeeping requirements— with the attendant uncertainty that that would cause regarding the legal status of those regulations during the process contemplated by the Act, we would have expected to find express legislative history on the subject. Moreover, OMB does have the authority under § 3504(b)(2) to initiate and review proposals for changes in regulations and to develop some orderly process for such an examination. OMB simply may not employ with respect to existing regulations the procedures, including the disapproval mechanisms, contained in § 3504(h) or § 3507. Finally, we must bear in mind the late Judge Jerome Frank’s admonition: “The legislative process is inherently such that, on occasions, the applications of a statute in practice disclose inconsistencies. While the literal meaning of a statute must yield to its evident purpose or policy, where a statutory provision accords with that purpose, the courts should seldom enlarge that provision, in the interest of symmetry or uniformity, in order to supply an omission.”61 In this case, the literal terms of § 3504(h)—which apply to regulations proposed and promul­ gated after the Act’s effective date—are in accord with the provision’s stated purpose of addressing the major increases in the federal paperwork burden deriving from new regulations. In such a situation, it would be inappropriate to “supply an omission” in § 3504(h) in “the interest of symmetry or uniformity” by reading this or another provision as applying to regulations that were already proposed and promulgated at the time the Act became effective.62 Such a reading also would conflict with the customary canon of statutory construction that, unless there is clear indication to the contrary, a statute should be read as applying prospectively to conditions or events occurring after the statute becomes effective.63 Accordingly, it does not appear that the A ct’s general purpose would be undermined or violated by an interpretation of § 3504(h) as the only provision setting forth procedures for OMB review of regulations under the Act. (2) Section 3502: “Definitions.” One of the A ct’s critical definitions is that of an “ information collection request,” which includes, in addition to a “written report form ,” “application form,” “schedule,” and “questionnaire,” a “reporting or recordkeeping requirement . . . calling for the collection of information.”64 There can be little doubt that, on its face, this definition could be read to apply to portions of regulations imposing reporting or recordkeeping requirements. The question is whether it must or should be read in such a manner. Although we acknowledge the breadth of the definition of an “information collection request,” we do not believe that it must be read to cover portions of 61 G uiseppi v. Walling, 144 F.2d 608, 614 (2d Cir. 1944). See also Addison v H olly H dl Fruit Products, Inc., 322 U .S. 607, 617 (1944) (“ Legislation introducing a new system is at best empirical, and not infrequently administra­ tion reveals gaps or inadequacies o f one sort or another that may call for amendatory legislation But it is no warrant for extending a statute that experience may disclose that it should have been made more comprehensive”). 62 Again, we note that forms issued pursuant to regulations may well be subject to § 3507 Also, if regulations were to be newly proposed or revised, the rulemaking proceedings would also be subject to § 3504(h) 63 S ee generally 2A, C. Sands, Sutherland Statutory Construction, ch. 41 (4th ed 1973). See also note 93 infra. 64 Section 3502(11) 410 regulations imposing paperwork burdens. This conclusion rests in part on the fact that the actual method by which information is collected would be embraced by § 3507 in a manner which could not conveniently cover existing regulations, and on the fact that § 3504(h), the Act’s only provision setting forth specific pro­ cedures for OMB review of regulations, speaks not of an “information collection request” but rather of “collection of information requirements” contained in regulations. Even though it might be possible to view this difference in termi­ nology as highly technical and merely the result of inadvertence, it is more in accord with the canon of construction of giving effect to every word, clause, and sentence in a statute65 to take seriously the difference in terms used by Congress. Congress spoke about an “information collection request” as being subject, inter alia, to § 3507 on the one hand, and about “collection of information requirements” in regulations as being subject to § 3504(h) on the other hand. If Congress had sought to make information burdens imposed by regulations subject to § 3507, it could have so provided in § 3507, either directly or by means of a cross-reference in that section to the provisions in § 3504(h) govern­ ing review of collection of information requirements in regulations. That Con­ gress not only did not do so but also used a different, albeit quite similar, term in speaking about regulations strengthens the conclusion that Congress intended collection of information requirements in regulations to be subject to the pro­ cedures of § 3504(h) alone. Furthermore, we do not believe that the Act’s definition of an “information collection request” should be read as necessarily including “collection of infor­ mation requirements” contained in regulations.66 To do so would, in our view, undermine the intended function of § 3504(h), which was to provide a specific set of procedures to structure OMB review and potential disapproval of collection of information requirements in proposed regulations. If regulations also could be reviewed under § 3507—a provision that lacks the procedures of § 3504(h)— there would be no apparent purpose for including § 3504(h) in the statute. Moreover, a construction of the term “information collection request” as applying to the portion of a regulation that imposes a collection of information requirement would appear inconsistent with the major discussion of the defini­ tion of an information collection request in the Senate Committee report. That report explains: The term ‘information collection request’ refers to the actual instrum ent used f o r a collection c f inform ation. It is the informa­ 65 See 2A, C. Sands, Sutherland Statutory Construction § 46 06 (4th ed 1973) 66 We note that the term “collection of information requirement" is not defined in the Act, although a “collection of information” is defined in § 3502(4) as. . . the obtaining or soliciting of facts or opinions by an agency through the use of written report forms, application forms, schedules, questionnaires, reporting or recordkeeping requirements, or other similar methods calling for either— (A) answers to identical questions posed to, o r identical reporting or recordkeeping require­ ments imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States, or (B) answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes . . 411 tion collection request which must be submitted to the Director in accordance with the clearance requirements of Section 3507. (Emphasis added.)67 The phrase, “actual instrument used for a collection of information,” is not defined in the statute and thus is to be interpreted in light of its ordinary meaning. An “instrument” is generally understood as the means by which, the tool or device by which, something is to be accomplished— that is, in this context, the form or questionnaire or schedule on which information is supplied or submit­ ted.68 In contrast, a “regulation” is defined as “an authoritative rule or principle,” or “a rule . . . having the force of law issued by an executive authority of a government.”69 Accordingly, we believe that the term “actual instrument” refers to the form or some similar reporting or recordkeeping instrument pursuant to which information is transmitted by the citizen to the government, and not the portion of a regulation imposing the information requirement itself. It would appear to strain common usage to assert that such a portion of a regulation is itself an “actual instrument” for the collection of information. Such usage is not strained by speaking of a form issued pursuant to a regulation as an “actual instrument” for the collection of information. Accordingly, we conclude that the term “information collection request” need not and should not be construed as synonymous with the term “collection of information requirement” in § 3504(h). In our view, the Act’s requirements applying to an “information collection request”— including those in § 3507— do not apply as a definitional matter to a “collection of information requirement” in a regulation. (3) Section 3507: “Public information collection activities— submission to Director; approval and delegation.” Section 3507 requires agencies to obtain OMB approval of a proposed “information collection request” before conducting or sponsoring the collection of information.70 Having discussed the definition of an “information collection request,” we must now consider whether the language of § 3507 is consistent with an interpretation of § 3504(h) as providing the only express set of procedures for OMB review of rules under the Act. We believe that it is. First, § 3507(a)(2)(A) requires an agency, before making an information collection request, to submit to OMB “the proposed information collection requ est, c o p ie s o f pertin en t regulations and other related materials as the Director may specify . . (emphasis added). It seems noteworthy that the reference here to “pertinent regulations” is separated by a comma from the reference to an “information collection request.” This separation is consistent with the view that 67 S Rep No 930, 96th C ong., 2d Sess. 39 (1980). 66 See W ebster’s Third New International Dictionary 1172 (1976). 69 Id at 1913; see also B lack’s Law Dictionary 1156 (5th ed. 1979) (defining a regulation as “a regulatory principle” or a “precept” or “rule . prescribed for management or government”). 70 See also § 3504(c) (providing that the information collection request clearance and other paperwork control functions o f the OMB Director “shall include . . reviewing and approving information collection requests proposed by agencies” and “ensuring that all information collection requests are inventoried, display a control num ber and, when appropriate, an expiration date”). 412 portions of regulations which impose paperwork burdens are not themselves information collection requests for purposes of § 3507. If a portion of a regula­ tion imposing a paperwork burden were an information collection request, the list in § 3507(a)(2)(A) of items to be submitted to OMB would appear redundant, for the same item— that is, part of a regulation imposing a paperwork burden— would be referenced twice, once as an “information collection request” and once as a “pertinent regulation.”71 We believe that the reference to “pertinent regula­ tions” means that OMB, in evaluating an information collection request under the criteria specified in the Act, should be furnished all material, including in particular regulations in light of which a form itself must be assessed. Second, § 3507(b) directs OMB, within 60 days of the receipt of a proposed information collection request, to notify the agency concerned of its decision “to approve or disapprove the request.” OMB’s decision is to be made “publicly available,” but is not required to be published or to be accompanied by a statement of reasons. Id. This procedure is sharply distinguishable from that provided for by § 3504(h). Section 3504(h) requires OMB to file public com­ ments on a proposed collection of information requirement in an agency rule (§ 3504(h)(2)), and to make publicly available its reasons for any disapproval of such a requirement (§ 3504(h)(6)). In view of these differences and the canon of construction that statutes should be read to give effect to each provision in them,72 the most natural reading of § 3507(b) is that it must apply in different situations than does § 3504(h). If this were not the case, then as a practical matter the less formal procedures of § 3507 could be expected to supplant the more formal procedures of § 3504(h). Third, in our view § 3507(c) does tend to confirm that OMB is not to assign control numbers to regulations reviewed under § 3504(h). Section 3507(c) provides in pertinent part: Any disapproval by the Director, in whole or in p a rt, c f a p ro p o se d information collection request c f an independent reg­ ulatory agency, or an exercise c f authority under section 3504(h) o r 3509 concerning such an agency, m ay be voided, if the agency by a majority vote of its members overrides the Director’s disap­ proval or exercise of authority. . . . Where the override concerns an information collection request, the D irecto r shall without fu rth er delay assign a control num ber to such a request, and such override shall be valid for a period of three years. (Emphasis added.) 71 It could be argued that the reference to “pertinent regulations” should be read as referring to regulations other than the one containing a particular information collection request This gloss on the statute, however, finds no specific support in the language of § 3507(a)(2)(A). In any event, if Congress intended that portions of regulations could themselves be information collection requests, it chose a most indirect and awkward way of phrasing its intent when it directed an agency to submit to OM B “the proposed information collection request, copies c f pertinent regulations and other related materials as the Director may specify, . ” (emphasis added) 72 Statutory construction must start with the language of the statute concerned See. e g , Detroit Trust Co v The Thomas Barium, 293 U S 21, 38 (1934) (a court is not “at liberty to imply a condition which is opposed to the explicit terms of the statute. . .T o [so] h o ld . . . is not to construe the Act but to amend it.”), Fedorenko v United States, 449 U.S. 490, 513 (1981) 413 The commas after “agency” at two places in the first sentence of § 3507(c)— which deals with any disapproval “of a proposed information collection request of an independent regulatory agency, or an exercise of authority under section 3504(h) or 3509 concerning such an agency, may be voided . . — serve to distinguish between OMB disapprovals of an information collection request, on the one hand, and actions under §§ 3504(h) and 3509, on the other hand.73 The last sentence of § 3507(c) provides that where “the override concerns an informa­ tion collection request,” OMB shall without further delay assign a control number to such a request. The absence in the last sentence of any reference to § 3504(h) or § 3509 suggests that OMB is not to assign control numbers under those provisions. If it were otherwise, one would expect Congress to have included some reference to § 3504(h) in the last sentence of § 3507(c). This analysis of the language of § 3507(c) supports the notion that the Act should be read as providing for two different sets of procedures for OMB review: those in §§ 3504(c) and 3507 (including the assignment of control numbers), which apply to information collection requests (forms, questionnaires and the like), and those in § 3504(h) (not including the assignment of control numbers), which apply to collection of information requirements in regulations. That interpretation of § 3507(c) is sustained by a passage in the Senate Committee report, which distinguishes between an independent agency’s override of an OMB disapproval of an “information collection request” and its override of an exercise of authority under § 3504(h) “concerning rules and regulations”: An independent regulatory agency may be [sic] a majority vote of its members override a n y disapproval of the Director o f an infor­ m ation collection request. The override authority also applies to an exercise o f the D irector's authority under section 3504(h) (con cernin g ru les and regulations) and under section 3509 (des­ ignation of a central collection agency). (Emphasis added.)74 If the term “information collection request” included an information requirement in a regulation, there would have been no reason to add to the statement that an independent agency may override an OMB disapproval of an information collec­ tion request the statement that the override authority “also” applies to OMB action relative to “rules and regulations” under § 3504(h). Fourth, § 3507(d) provides that the OMB Director “may not approve an information collection request for a period in excess of three years.” If this provision applied to portions of regulations containing collection of information requirements, the result would be that at least those portions of regulations containing collection of information requirements could be effective for no more than three years without subsequent OMB approval. Such an arrangement would have major effects on the administrative process that has been in existence at least 73 Under § 3509, the OM B Director “may designate a central collection agency to obtain information for two or more agencies if the Director determines that the needs of such agencies for information will be adequately served by a single collection agency, and such sharing o f data is not inconsistent with any applicable law ” 74 S Rep. No. 930, 96th C o n g .t 2d Sess 15 (1980). 414 since the enactment of the Administrative Procedure Act in 1946. In effect, such an arrangement would involve the operation of a kind of “sunset” provision for agency regulations, under which regulatory provisions would automatically lapse after a certain tim e unless affirmative steps were taken to renew a regulation. Without expressing any view regarding the merits of such a provision or its legality if it were enacted by Congress, we must approach with a sense of caution an interpretation of the Act that would require such a far-reaching result in the absence of any clear expression by Congress that this was its intent. We have not been referred to, nor have we found, any provision or statement indicating specifically that Congress sought, in passing the Act, to subject agency regula­ tions to such a “sunset”-type provision. This is of special significance because a wide class of “sunset” provisions, usually involving a lapse of statutory authority after a certain number of years absent affirmative re-authorization by Congress, has been the subject of the contemporary debate about “regulatory reform.”75 The Act’s legislative history specifically and clearly states that Congress did not intend for the statute to be used as a vehicle for “regulatory reform” in any broad sense.76These factors, taken together, support the view that § 3507(d) should not be read as applying to portions of regulations which contain collection of information requirements. In short, we believe that the language of § 3507 is consistent with the interpretation of § 3504(h) as providing the only set of procedures for OMB review of regulations under the Act. (4) Section 3512: “Public Protection.” Section 3512 provides that “no person shall be subject to any penalty for failing to maintain or provide information to any agency” pursuant to an information collection request made after Decem­ ber 31, 1981, if the request does not “display a current control number assigned by the Director [of OMB], or fails to state that such request is not subject to this chapter.” The purpose of this provision is to provide an effective incentive for agencies to comply with the Act’s requirement that a control number be displayed on each “information collection request.”77 The question here is whether § 3512 was intended to apply in the context of regulations containing collection of information requirements. Although the legislative history is not necessarily conclusive on this point, it does suggest that § 3512 was intended to apply to forms, questionnaires, or similar methods of collecting information, not to regulations as such. For instance, in the report of the House Committee on Government Operations, the following explanation of § 3512 is provided: 75 See. e g . Federal Regulation* Roads to Reform, Final Report o f the American Bar Association’s Commission on Law and the Economy, 105-111 (1979). lb See H R Rep. No 835, 96th Cong., 2d Sess. 9 (1980) (“Regulatory reform is a separate issue from the function assigned by H.R. 6410. . . . [T]he assignment of regulatory reform to the Office of Federal Information Policy would dilute the information functions assigned under this bill”), S. Rep. No. 9 3 0 ,96th Cong , 2d Sess 8-9 {1980) (“|T]he Committee does not intend that 'regulatory reform’’ issues which go beyond the scope of information management and burden be assigned to the Office by the Director”) 77S e * H R Rep. No 835, 96th Cong , 2d Sess 20(1980), S Rep No 9 3 0 ,96th Cong , 2d Sess. 2, 52 (1980) 415 [T]he bill stipulates that no penalty may be imposed on a person who fails to respond to an information collection request which was not approved in accordance with the law’s provisions. . . . H .R . 6 4 1 0 w ou ld allow th e pu blic, b y refusing to answ er these q u e stio n n a ire s, to help c o n tro l “o u tla w form s" (emphasis added).78 Similarly, Senator Chiles, a sponsor of the Senate bill, stated during hearings before his subcommittee in 1979 that “[f]orm s without an OMB num ber on them w ill b e ‘b o o tleg fo rm s’ that the public can ignore.” (Emphasis added.)79 During the same hearing, Senator Bellmon explained: “Under S. 1411 [a] businessman, when he g ets a ll th ese fo rm s, unless they have th at OMB stam p in the upper righth an d corner, that stamp of approval, he will know that th at is a bootleg fo rm that he can throw away” (emphasis added).80 Although other statements in the legislative history refer more generally to § 3 5 1 2 ’s coverage of “ information collection requests,”81 the emphasis on “bootleg forms” in much of the legislative record strongly suggests that Congress particularly had in mind § 3512’s application to forms and similar methods of collecting information. Although this fact alone does not necessarily establish that only forms and similar items— as distinct from regulations— are subject to the control number requirements of §§ 3507 and 3512, it is entirely consistent with such an interpretation of the Act. (5) Section 3518: “Effect on existing laws and regulations.” Section 3518(e) provides that “[njothing in this chapter shall be interpreted as increasing or decreasing the authority of the President, the Office of Management and Budget or the Director thereof, under the laws of the United States, with respect to the substantive policies and programs of departments, agencies and offices . . . .”82 This provision evidently distinguishes between the “substantive policies and programs of departments, agencies and offices,” which are not to be affected by the Act, and the procedural requirements governing paperwork imposed by the Act. We grant that this distinction may be a difficult one to maintain in practice. Nonetheless, Congress required that it be maintained. This fact casts doubt on an interpretation of the Act that would effectively shift, without any clearly ex­ pressed intent to do so, a measure o f substantive control over rulemaking from an agency to OM B.83 78 H .R . Rep. No 835, 96th C ong., 2d Sess. 20 (1980) 79 Paperwork and Redtape Reduction Act c f 1979, Hearings before the Subcomm. on Federal Spending Practices and Open Government o f the Senate Comm on Governmental Affairs, 96th Cong , I st Sess. 7 ( 1979) (remarks of Sen. Chiles). 80 Id. at 12 81 See, e g , S. Rep No. 930, 96th Cong., 2d Sess 52 (1980). “Information collection requests which do not display a current control number or, if not, indicate why nol, are to be considered 'bootleg' requests and may be ignored by the public ” (Emphasis added ) 82 Section 3518(a) states that “ [ejxcept as otherwise provided in this chapter, the authority of an agency under any other law to prescribe policies, rules, regulations, and procedures for Federal information activities is subject to the authority conferred on the Director by this c h a p te r” Although this provision confirms that the Act applies to regulations, it does not provide guidance regarding the question whether § 3504(h) sets forth the only procedures for OM B review of regulations under the Act. 83 See 126 Cong. Rec. 30178 (1980) (“Section 3518 specifically states that this bill does not change existing relations of the President and OMB with respect to the substance of agency programs.”) (Remarks of Sen Chiles.) 416 As noted earlier, one of the chief consequences of OMB’s interpretation is that portions of regulations imposing paperwork burdens would be “approved” by OMB for no more than three years. After expiration of the approval period, they would lapse and require new approval to remain effective. This would arguably give OMB a much greater measure of control over the rulemaking process. Although by itself this point is not particularly definitive, it certainly is not inconsistent with the view set forth above that § 3504(h) provides the exclusive set of procedures for OMB review of regulations under the Act. C. G en eral Schem e c f the A c t We have concluded that an interpretation of § 3504(h) as providing the only express procedures for OMB review and disapproval of informational portions of regulations, as stated in A above, appears consistent with each of the Act’s major provisions in addition to § 3504(h). We believe that such an interpretation also is consistent with the statute’s general scheme. One general argument against such an interpretation that is implicit in OMB’s position rests on the fact that the foregoing interpretation would divide the world of paperwork burdens into basically two categories— those imposed by regula­ tions and those imposed by forms or similar documents— and would control each category with a different set of OMB review procedures. This division, it might be contended, seems at odds with the Act’s general aim of reducing all federal paperwork burdens, not just those imposed by forms, questionnaires or similar methods of information collection. A significant weakness of this argument, however, is that it essentially assumes its own conclusion, namely, that the Act does not distinguish for purposes of OMB review between paperwork burdens imposed by regulations and such burdens imposed by forms of questionnaires. That, of course, is the central question to be resolved here. In addition, this argument presumes that the practical effect of an interpreta­ tion of § 3504(h) as providing the only express procedures for OMB review of regulations would be substantially to undermine OMB’s efforts to reduce the federal paperwork burden. However, as an empirical matter, it has not been demonstrated that such an interpretation of § 3504(h) would so constrict OMB’s effectiveness under the Act. OMB is given broad general powers under § 3504(b). Also, § 3504(h) itself authorizes OMB ultimately to disapprove collection of information requirements contained in proposed regulations en­ acted after the effective date of the Act.84Moreover, there is no dispute that forms or questionnaires issued pursuant to regulations are subject to OMB review under § 3507. Furthermore, this argument fails to take account of a number of passages in the legislative history indicating generally that Congress was especially concerned with the paperwork burden imposed by agency forms, questionnaires, or similar 84 See § 3504(h)(5). 417 items. This is not to say that Congress was not also concerned with regulations, as it clearly was. However, Congress was particularly concerned about forms. This emphasis is reflected at several points in the legislative history. For instance, the House Committee report described the Act as strengthening the Federal Reports Act of 1942 by requiring OMB “to review and approve most of th e fo rm s a n d questionnaires used by the Federal agencies to collect informa­ tion from the public.” (Emphasis added.)85 In another passage, the House report described the basic problem addressed by the Act as follows: “Inefficiencies in current Federal information practice drastically reduce the effectiveness of the Government while, at the same time, drowning our citizens in a sea o f fo rm s, q u estionn aires, a n d reports." (Emphasis added.)86 In a similar vein, the Senate Committee report stated: F ederal p a p e rw o rk requirements, w hether they are tax fo rm s, m edicare fo rm s, financial loans, jo b application s, o r com pliance reports, are som ething each individual touches, feels, an d works on. The cumulative impact is excessive. . . . Several small business counselors testified that many clients refuse to expand their business because of the added paperwork they would face. One cou n selor ta p ed together the fo rm s any p o te n tia l sm all business p e r so n m ust know ju s t to think abou t gettin g into business. They stretch ed a cro ss an entire room. (Emphasis added.)87 Such references to “something each individual touches, feels, and works on” and taped-together forms stretching across an entire room are vivid reminders that Congress sought, by passing the Act, particularly to control the paperwork burden imposed by forms, questionnaires, and similar instruments for informa­ tion collection. The emphasis on forms also is reflected in testimony during hearings on the relevant bills. Of particular interest is the explanation by the former Associate Director of OMB of the elimination of the exemption for the IRS that had been contained in the Federal Reports Act: The argu m en ts th a t were m ade on b eh a lf c f IRS were basically th at new tax fo rm s have to b e prep a red within extrem ely short tim e lim its. The delays would be extremely important and costly to taxpayers. They a lso ra ise d the argum ent that the tax fo rm is extrem ely com plex a n d technical an d there w as not very much that you could d o to im prove the form s as a resu lt[,] and the third argum ent. . . is that the collection of revenue is a unique function and unlike 85 H .R . Rep No 835, 96th Cong , 2d Sess. 18 (1980). 84 Id. at 3 87 S Rep. No. 930, 96th C ong , 2d Sess. 3 (1980). 418 anything else the Federal Government does and, therefore, no­ body outside that function should have a role in deciding what information goes in it. We viewed those arguments as not persuasive. (Emphasis added.)88 At another point in this testimony, the OMB representative further highlighted the underlying importance of the IRS’ forms: From the beginning, OMB’s ability to control reporting burdens has been limited from exemptions to the Federal Reports Act. A ll c f the fo rm s c f the Internal Revenue S ervice and most of the reports of the bank regulatory agencies h ave not been review ed by any unit ou tside that agency . . . . B ecause c f these provisions, alm ost three-quarters c f the p u blic reporting burden is excluded fro m O M B review. (Emphasis added.)89 These and other statements in the legislative history90 confirm that Congress’ attention was drawn particularly to the problem of controlling the paperwork burden imposed by government forms, questionnaires, and similar items. This special concern is consistent with our conclusion that Congress set forth a particularly rigorous mechanism for OMB review of forms under the Act. This does not deny that Congress also was concerned with regulations. However, the many passages indicating Congress’ special concern with forms does establish that Congress did not always consider forms and regulations together and inseparably. Thus, it is not surprising that the Act sets forth two different procedural mechanisms for the review of forms and regulations, respectively. We conclude that the Act’s general scheme, as reflected in its legislative history as well as language, is consistent with the view that § 3504(h) provides the only procedures for OMB review of regulations. 88 Paperwork and Redtape Reduction Act c f 1979, Hearings before the Subcommittee on Federal Spending Practices and Open Government c f the Senate Committee on Governmental Affairs, 96th Cong , 1st Sess. 31-32 (1979) (testimony of Wayne Granquist, Associate Director, OMB) 89 Id. at 25 90 See Paperwork Reduction Act c f 1980, Hearings before a Subcommittee c f the House Committee on Govern­ ment Operations, 96th C ong., 2d Sess 2 (1980) (“While the Government needs a great deal of information from its citizens, a lot can be done to cut down on the number and length o f questionnaires, form s and reports, and lo eliminate duplication and inefficiencies” ) (emphasis added) (statement of Chairman Brooks), id at 89 (“Currently almost 81 percent of the Federal paperwork burden is exempt from OM B review Without the authority lo review the reports and form s required by the independent regulatory commissions and associated with tax, education and health manpower programs, there is little we can do to reduce the public burden imposed by these requirements”) (emphasis added) (statement of Wayne Granquist, Associate Director, OMB). See also Paperwork and Redtape Reduction Act o f 1979, Hearings before the Subcommittee on Federal Spending Practices and Open Government c f the Senate Committee on Governmental Affairs, 96th Cong , 1st Sess. 11 (1979) (“ Past attempts to arrest the proliferation of paperwork have included requirements for Office of Management and Budget and GAO approval of reporting form s. Obviously, this has not been effective in holding down reporting requirements Each and every Federal agency seems lo continue to be able lo argue that they have unique needs which can only be met by creating their own new forms”) (emphasis added) (statement of Senator Bellmon), Privacy and Confidentiality Report and Final Recommendations c f the Commission on Federal Paperwork, Hearings before Subcommittee o f the House Committee on Government Operations, 95th Cong., 1st Sess. 7 (1977) (“We recommended the elimination of all agency exemptions from the requirement for a central review of all planned reports the government uses to collect information from the public. Currently, the IRS with its multitude o f tax form s, as well as the bank regulatory agencies and others are not subject to review by a central management agency such as OMB . to reduce duplication or unnecessary data collections”) (emphasis added) (statement of Chairman Horton) 419 IV. Response to Arguments in the OMB Memorandum of April 23, 1982 In this section, we address certain particular aspects of the memorandum of April 23, 1982, setting forth O M B ’s position. That memorandum clarified some of the issues about which OMB and Treasury are in disagreement and forcefully stated the arguments in favor of O M B ’s view. Some of the arguments contained in that memorandum already have been addressed in this opinion. This section will briefly respond to the remaining issues and seek to dispel any confusion about some of the more important details presented by this dispute. A . The Q uestion to Be Resolved At the outset, it is important to recognize that, in our view, the central question we must address is not the coverage of regulations by the Act as such. We stress this because the April 23, 1982, memorandum suggests that that is the basic question. For example, on pages 1 and 2, in discussing the Senate amendment to § 3504(h), the memorandum states that “[t]he [Kennedy] Amendment neither brought new ‘information collection requirements’ within the Director’s approval responsibilities nor exempted ‘information collection requests’ already covered by the Act. This is the is s u e . . . ” (emphasis added). In fact, there is no doubt that regulations are “covered” by the Act. They would have been “covered” without the Kennedy amendment and they are covered by the version of the Act actually passed. The question is to what extent and in what manner regulations are covered by the Act. B . The P rocedu res Governing O M B R eview o f Regulations It should be recalled, as discussed above, that the Act gives OMB broad powers to review and initiate proposals for changes in regulations wholly apart from the collection of information clearance procedures which are the central focus of the dispute between Treasury and OMB. OMB has the authority conferred on it by § 3504(b), including “initiating and reviewing proposals for changes in . . . regulations” (§ 3504(b)(2)), and “coordinating, through the review of budget proposals . . . agency information practices” (§ 3504(b)(3)). We discuss here only the specific interrelationship between the explicit and distinct procedures established by § 3504(h) on the one hand, and §§ 3504(c) and 3507 on the other hand. Before considering in detail the April 23, 1982, memorandum’s discussion of the procedures governing OMB’s review of regulations, we will set forth in a somewhat schematic manner the four major possibilities in this regard. First, it could be argued that only the procedures set forth in §§ 3504(c) and 3507 could apply to regulations. Second, it might be asserted that only the procedures set forth in § 3504(h) could apply to regulations. Third, it is possible that both sets of procedures— those in § 3504(h) a n d those in §§ 3504(c) and 3507— could apply in any particular case to regulations. Fourth, it is possible that each set of 420 procedures could apply to regulations, but only in mutually exclusive sets of circumstances. The first alternative has no support and contradicts the explicit terms of § 3504(h). The April 23, 1982, memorandum squarely rejects the second pos­ sibility, which is the one embraced by the Treasury Department and is most reasonable in our view. Thus, the OMB memorandum could have adopted the third or the fourth alternative. In fact, it would appear that the memorandum, at different points, embraces both possibilities. For instance, at pages 16 and 17, the memorandum asserts that an agency has a “degree of latitude” in deciding whether to have a regulation that imposes a paperwork burden reviewed by OMB under § 3504(h), or under §§ 3504(c) and 3507: [A ]s a p ra c tic a l matter, the Kennedy am endm ent [§ 3504(h)] a cco rd s each agen cy a degree c f latitude with regard to the procedu res by which the D irector [ c f OM B] w ill review informa­ tion collection requests in regulations which are the subject of notice and comment procedures. If the agency wants OMB to proceed under 3504(h), it submits the NPRM [notice of proposed rulemaking] and related material in accordance with the pro­ cedures of section 3504(h). OMB will then process the request according to 3504(h). I f the agen cy wants OM B to p ro cess the request pu rsuan t to the procedu res cf3 5 0 4 (c ) an d 3 5 0 7 , nothing in the law w ould prevent it from com pleting its rulem aking and then subm itting the rule containing the request to OM B fo r review. (Emphasis added.) However, the OMB memorandum states that this latter process “would run the very risk that the Kennedy amendment was designed to minimize, and should be avoided.” Thus, the OMB memorandum acknowledges that its interpretation of the statute allows for the very problem which § 3504(h) was enacted to prevent. Moreover, OMB practice may have initially insisted upon it, as the memorandum indicates at page 17: The Memorandum submitted by Eric Fygi [Deputy General Counsel, Department of Energy] contends that OMB operates as though it has the power to decide which procedures apply. OMB does not have that authority, although it may well be that during the early months of implementation, it has at times operated as though it did. OMB has taken steps to ensure that the agencies and not OMB make the “ choice” and our new procedures . . . will unambiguously so provide. This passage evidently assumes that it is now up to an agency to decide in any particular case whether to have a regulation reviewed by OMB under § 3504(h) or under §§ 3504(c) and 3507. 421 On the other hand, at pages 11 and 12, the April 23, 1982, memorandum explains the Senate’s amendment to § 3504(h) as an attempt to “harmonize” the A ct’s procedures with the Administrative Procedure Act (APA) in order to “accommodate . . . two potentially conflicting responsibilities.” To accommo­ date this potential conflict, the memorandum suggests, § 3504(h) applies to regulations during the period in which they are subject to notice-and-comment procedures under the APA, whereas §§ 3504(c) and 3507 apply to regulations imposing information requirements in other circumstances. This is also the position taken in the memorandum to us dated January 15, 1982, discussed above.91 Under this view, “[i]f 3504(h) does not apply, then the procedures of 3504(c) and 3507 do . . .” (page 12). A key premise of this interpretation evidently is that both sets of procedures do not apply to any given regulation at the same time. The provisions, in short, are mutually exclusive on this view. Accordingly, the April 23, 1982, memorandum appears to embrace two different and evidently inconsistent positions: first, that in a particular case, both § 3504(h) a n d §§ 3504(c) and 3507 may apply to a regulation (the third pos­ sibility above) and the choice is up to the agency; and second, that in any particular case, either § 3504(h) or §§ 3504(c) and 3507 (but not both) may apply to a given regulation (the fourth possibility above). We responded to the third possibility in section III, where we noted that under such an interpretation, § 3504(h) would be rendered relatively redundant. This is so, in sum, because the purpose of § 3504(h) was to establish a procedural system under which OMB would review regulations under the Act. If it were possible for OMB to review regulations under other provisions— including §§ 3504(c) and 3507— which lack the procedural formalities of § 3504(h), there would be no definite function left for § 3504(h) to fulfill.92 We also note that the optional character of this interpretation flies in the face of the mandatory language of § 3504(h) (“each agency shall forward”). The fourth possibility also is subject to the response that it ignores the exclusive role assigned to § 3504(h) under the statute. The fourth possibility adds the significantly anomalous result that “ new regulations proposed after the A ct’s effective date are subject to § 3504(h), with the procedural checks it was intended to provide, whereas “ old” or “ existing” regulations promulgated before the A ct’s effective date are subject to §§ 3504(c) and 3507 and could be overturned without any of the procedural safeguards of § 3504(h). Our concern with this interpretation is heightened by the fact that it does not give any weight to the longstanding canon of interpretation that statutory provisions should nor­ mally be read as applying prospectively to events and conditions occurring after the law’s effective date: “ [t]he rule is that statutes are prospective, and will not be construed to have retroactive operation unless the language employed in the enactment is so clear it will admit of no other construction.” 93 The language of 91 See note 41 supra and accompanying text. 92 Elaborations on this argument appear supra. 93 This canon is stated in Bauer Grocer Co. v. Zelle, 172 111. 407, 50 N E. 238, 241 (1898); see also 1 Kent, Commentaries 454 (3d ed. 1836); Smead, Rule Against Retroactive Legislation, 20 Minn. L. Rev. 775 (1936); Brewster v. Gage, 280 U .S. 327 (1930), 2A, C . Sands, Sutherland Statutory Construction § 41.04 (4th ed. 1973). 422 §§ 3504(c) and 3507 does not clearly express the intention that it should be applied to regulations already promulgated at the time the Act became effective. C . A dditional Points Several additional comments may be made regarding the April 23, 1982, memorandum. (1) Page 2 of the memorandum relies on a passage in the Senate Committee report stating that the “ imposition of a federal paperwork burden does not depend on how the questions are asked of the respondent, but rather on the fact the Federal government has asked or sponsored the asking of questions.” This is said to support the proposition that such requests could be made by regulations as easily as by forms, questionnaires, or similar items. We discern little guidance in this passage. It does not discuss regulations at all, but rather is directed at explaining that the phrase, “ or other similar methods,” in the definition of a “ collection of information” covers oral as well as written requests. The passage’s meaning may be best understood by considering it as a whole: [T]he Director of OMB has historically included oral techniques as instruments for collecting information. Federal agencies have increasingly been collecting information from the public through the use of telephone surveys and personal interviews. These techniques are used either independently or in conjunction with other information collection techniques such as mail question­ naires. The imposition of a federal paperwork burden does not depend on how the questions are asked of the respondent, but rather on the fact the Federal government has asked or sponsored the asking of questions. In concept, oral data collections are the same as those conducted through written requests for written responses. They should be reviewed under the same standards as written requests.94 It appears to be an unduly strained reading of the foregoing passage to view it as supporting more than the proposition it advances, namely, that oral as well as written requests are covered by the A ct’s definition of the “ collection of information.” (2) At page 2, the memorandum argues that the Kennedy amendment was “ clearly premised on the understanding that all reporting and recordkeeping requirements contained in regulations were required to be routinely approved by the Director” of OMB. In support of this argument, comments by Senators Kennedy and Danforth during Senate debate on the bill are quoted at page 3 of the memorandum. " S . Rep. No 930. 96th Cong . 2d Sess 39 (1980) 423 In our view, the quoted comments do not support the proposition advanced. The Senators’ comments deal with the procedural requirements under § 3504(h) governing OMB review of regulations during the process of the developm ent c f regulations. This is not the same as the review of existing regulations. Further­ more, the Senators do not refer generally to OMB power to approve regulations, as OMB suggests. Rather, Senator K ennedy’s com m ents, in discussing § 3504(h) as reported to the Senate floor and before amendment, concern the power of OMB to “ overturn” a rule. Similarly, Senator Danforth, in discussing the Kennedy amendment to § 3504(h), speaks of OMB’s power of “ undoing a collection of information requirement” in a rule. To overturn or undo an informa­ tional requirement is not the sam e as routinely to approve such a requirement. These points may be confirmed by viewing in context the Senators’ remarks. As Senator Kennedy is quoted at page 3: This legislation [as then drafted] would permit the Director of OMB to overturn a rule which was adopted by an agency without providing any procedural rights for the people affected by the rule or for the agency that promulgated the rule. Thus, even if an agency has complied with all the appropriate procedural require­ ments for public notice and comment, and has spent years compil­ ing an adequate agency record, this legislation would permit OMB to overturn that agency decision without even requiring OMB to justify its decision publicly. I have sponsored an amend­ ment which lim its the au th ority o f OM B to overturn reporting, recordkeeping, and other information collection requirements adopted by a Federal agency in a rulemaking proceeding. (Em­ phasis added.)95 As Senator Danforth is quoted: I am willing to accept the Kennedy amendment, which is intended to clarify the authority of the Director of the OMB to review Federal rules and regulations to determine their impact on Federal paperwork. Essentially, as I understand it, the p u rpose c f the K enn edy am endm ent is to preven t O M B fro m undoing a collection c f inform ation requirem ent specifically contained in an agency rule after th at requirem ent has gon e through the adm inistrative rulem aking p ro cess if the OMB Director ignored the rulemaking process. This seems fair enough. I note, however, that this limitation on OMB’s authority is con­ fined to requirements specifically contained in agency rules. (Emphasis added.)96 95 126 Cong. Rec. 30178-79 (1980) 424 In context, both of these statements about OMB’s ability to “ overturn” an agency decision, or to “ undo” a collection of information requirement, relate only to the provisions of § 3504(h) that give the Director a voice in the process of “ develop­ ing rules and regulations.” They do not suggest that the legislation, either before or after the amendment to § 3504(h), provided a procedure for the review of existing regulations. (3) At page 4 of the April 23, 1982, memorandum, reliance is placed on a passage in the House Committee report explaining that the Paperwork Reduction Act covers “ recordkeeping” requirements, which had not been clearly covered under the Federal Reports Act.97 Although this statement does appear in the House report, it does not answer the question whether pre-existing regulations were to be covered or whether regulations were to be reviewed by OMB under § 3504(h) alone. (4) At page 5, the memorandum states that the Senate amendment to § 3504(h) “ did not create an exemption for [information] requests in existing regulations.” We agree. However, this is beside the point, for before it was amended, § 3504(h) applied only to the process of developing regulations.98 In fact, the Senate Committee report noted that new regulations caused the greatest paperwork burden, thus explaining the provision’s emphasis on such regulations.99 Accord­ ingly, § 3504(h), before it was amended in the Senate, applied only to regulations under developm ent, not to “ o ld ” or “ existing” regulations. After it was amended, § 3504(h) retained this focus. (5) At page 6, the memorandum contends that the Treasury Department’s interpretation in effect would continue the exemption for the IRS that had been eliminated by the 1980 statute. We do not agree. The legislative history appears to make clear that Congress’ attention was focused on the exemption of IRS forms from the Federal Reports A ct.100 That exemption was eliminated. The Act was intended to and does cover the IRS in the same manner as other agencies covered by the Act. (6) At page 10, the memorandum argues that the Treasury Department’s interpretation would “ exempt” from coverage by the Act reporting and rec­ ordkeeping requirements “ in bulletins, instructions, manuals, or guidelines, oral questionnaires, and in any other instrument other than a written form or like document.” We do not agree. Treasury is arguing that only § 3504(h) governs OMB review of regulations under the Act. This argument does not deal with the additional questions of which kinds of documents or whether oral requests would be covered by §§ 3504(c) and 3507. We do not interpret Treasury’s argument as attempting to establish that bulletins, instructions, manuals or guidelines, or oral requests, could not be covered by the Act. (7) At page 13, the memorandum concedes that “ [s]ection 3504(h) admittedly does not provide by its terms for the assignment [by OMB] of a control number” 97 See H.R. Rep No. 835, 96th Cong , 2d Sess 19 (1980). 98 See pages 400 lo 403 supra 99 See pages 401 to 402 supra 100 See pages 418 to 419 supra. 425 to a regulation containing a collection of information requirement. However, the memorandum argues that this fact does not weaken the OMB position because the requirement of a control number for regulations is made implicit by the Act’s other provisions. This argument, however, begs the main question, namely, whether a collection of information requirement in a regulation is synonymous with an information collection request for purposes of OMB review. We believe that the absence of any statement in § 3504(h) that control numbers should be assigned to regula­ tions is simply one additional indication that Congress did not intend to treat regulations in the same manner as information collection requests subject to § 3507. Congress apparently envisioned that a form, questionnaire, or other instrument by which a citizen provides information to the government should have an OMB control number on it. The number’s absence would alert a citizen to the fact that the required process had not been followed, thus allowing the citizen to assist, in a sense, in enforcing the Act’s provisions. There is no specific indication that Congress contemplated the assignment of control numbers to regulations.101 V. Conclusioira After a thorough analysis of the arguments by all parties to this dispute in light of the language and history of § 3504(h), the language and history of the Act’s other provisions, and the statute’s general scheme, we conclude that § 3504(h) establishes a procedure which is mandatory for new regulations but which does not include a process for routine review of, and a disapproval mechanism for, existing regulations. We also conclude that the information collection request procedure set out in § 3507 does not apply to existing regulations. A contrary conclusion, in our view, cannot be reconciled with the Act’s language, the statute’s overall scheme, or its legislative history. Of particular 101 We recently have received from OMB copies of two letters from Congress dealing with the general question of the coverage o f the IRS by the Paperwork Reduction Act. One is a letter to the President signed by the members of the Senate Committee on Government Affairs, dated May 14,1982, expressing opposition to S 2198, the Taxpayer C ompliance Improvement Act of 1982. on the ground that it contains a provision (§ 202) that would exempt the IRS from the Paperwork Reduction Act. We express no view about the bill, but would observe that the points made in the members’ letter do not deal directly with the issue before us. The second letter, dated May 20, 1982, is to the Secretary of the Treasury from Senator Lawton Chiles, a member of the Senate Governmental Affairs Committee and a sponsor of the Act before its passage in 1980. Senator Chiles takes the position that the Act was intended to empower OMB to review collection of information requirements in existing regulations under § 3507 We have tw o responses to this letter First, Senator Chiles acknowledges that § 3504(h) has a narrower scope than § 3507. H is letter attempts to explain § 3504(h)'s operation by arguing that its intent is “ to proceduralize the requirements o f the faperwork Acl, in particular those of Section 3507, with those of the Administrative Procedure Act. . . ” The letter does not deal in specific terms with the basic issue of how the procedures o f § 3504(h) relate to the procedures of § 3507, which is the questton with which we must deal Second, in any event, in interpreting the provisions of the Acl, we must focus on the written legislative history expressed in Committee reports and floor debate prior to the A ct’s passage. It is a firmly established principle that subsequent views of individual Congressmen are to be approached with great caution, for they are not the primary expressions o f legislative intent existing at the time a statute was actually passed See generally NLRB v. Bell Aerospace C o.. 416 U .S. 2 6 7 ,2 7 4 -7 5 (1974); see also United States v Rutherford, 442 U S. 544, 553-54 (1979); B oard c f Governors v First Lincolnwood C orp., 439 U S. 234, 248 ( 1978). In our view, the effects of the Senate amendm ent to § 3504(h) were much more significant than apparently Senator Chiles would agree, for the reasons stated in this opinion. We would observe, however, that if our interpretation of the Act as passed is inconsistent with the present intent of Congress, it is, of course, free to enact corrective legislation. 426 importance is the clearly expressed intent in both the Senate and the House regarding the amendment and subsequent enactment of § 3504(h). Careful analysis of the Act’s other major provisions and of its legislative history further supports our conclusion that § 3504(h) provides the exclusive mechanism for OMB review of regulations. Nonetheless, OMB is given substantial authority over existing regulations by other provisions of the Act, including § 3504(b). We see no insuperable barrier that would prevent OMB from initiating proposals for changes in existing regulations that it deems appropriate under the powers given to it by the Act, which include authority over the IRS and virtually all other agencies of the federal government. T h eo d o r e B . O lson A ssistan t A ttorney G en eral Office c f L egal Counsel 427

Write a legal research memo on the following topic.

Paperwork Reduction Act of 1980 The provisions of the Paperwork Reduction Act of 1980 giving the Office of Management and Budget authority to review and approve agency “information collection requests” do not apply to reporting and recordkeeping requirements contained in agency regulations which came into existence prior to the effective date of the 1980 Act. However, new regulations containing reporting or rec­ ordkeeping requirem ents must be developed in accordance with the procedures set forth in 44 U S.C . § 3504(h). Section 3504(h) provides the exclusive procedure for OM B review and possible disapproval of information collection requirements contained in or specifically required by agency regulations; the more stringent procedures for OMB review set forth in 44 U.S C. §§ 3504(c) and 3507 apply only to agency information collection requests issued pursuant to or deriving from regulations. The language and history of other provisions of the Paperwork Reduction Act, as well as its general schem e, support the conclusion that OM B has no authority under either § 3504(h) or § 3507 to review and disapprove existing agency regulations. Nonetheless, OMB is given substantial authority over existing regulations by other provisions of the Act, including § 3504(b). June 22, 1982 MEMORANDUM OPINION FOR THE COUNSEL TO THE VICE PRESIDENT AND FOR THE COUNSEL TO THE DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET This responds to your request for our opinion concerning the application of the Paperwork Reduction Act (the Act) to regulations that impose paperwork bur­ dens.1This question has arisen, you have explained, because the Department of the Treasury has taken the position that Internal Revenue Service (IRS) regula­ tions which impose paperwork burdens are not subject to those provisions of the Act directing the Office of Management and Budget (OMB) to review and approve an “information collection request.” That term is defined by the Act as covering “a written report form, application form, schedule, questionnaire, reporting or recordkeeping requirement, or other similar method calling for the collection of information.”2 Under the Act, OMB is directed to review and 1The foperwork Reduction Act, Pub. L N o. 511, 96th Cong., 2d Sess (1980), 94 Stat. 2812, 44 U.S C §§ 3501-3520, took effect on April 1, 1981 In this opinion, the words “regulation” and “rule" will be used interchangeably. See 5 U.S C § 551(4). 2 Section 3502(11) of the Act, 44 U S C. § 3502(11) (Supp. V 1981). Rirther citations to the Act will exclude the additional reference to Title 44 of the 1981 Supplement to United States Code Annotated, which includes the same section numbers as the Act itself. 388 approve each “information collection request,” and to assign to each a control number that signifies OMB approval.3 The Act provides that no person shall be subject to any penalty for failing to maintain or to provide information pursuant to an information collection request that has not itself been assigned the neces­ sary control number.4 In the present case, the Treasury Department argues that the portion of any regulation which imposes a paperwork burden is not an “information collection request” for purposes of the Act. In response, you have argued that the portion of a regulation imposing a paperwork burden is an “information collection request,” and therefore is subject to OMB review and approval, and the assignment of a control number under the Act. In addressing this issue, our analysis will proceed in four sections. First, we will summarize the Act’s provisions that are relevant to this dispute. Second, we will set forth the central arguments of the Department of the Treasury, on the one hand, and OMB, on the other hand, as advanced in several memoranda addressed to this office.5 Third, we will set forth our own analysis of the statute and its legislative history. Fourth, we will discuss in particular the additional arguments advanced on behalf of OMB’s position in your memorandum of April 23, 1982. As we will explain in considerably more detail in the balance of this memoran­ dum, we have concluded that requirements for the maintenance and provision of information contained in regulations that came into existence prior to the effec­ tive date of the Act are not subject to the information collection request approval procedures contained in §§ 3504(c) and 3507 of the Act, but that new regulations must be developed in accordance with the OMB coordination process created by § 3504(h). OMB is, however, given broad powers by the Act to initiate and review proposals for changes in existing regulations and to coordinate and improve agency information practices whether contained in regulations or elsewhere. The IRS is subject to OMB’s authority in this regard to the same extent as other Executive Branch agencies. The Paperwork Reduction Act is a broad charter for OMB to manage, coordinate and improve federal information prac­ tices limited, of course, by existing agency authority over the substantive content of policies and programs. I. Summary of the Act The Paperwork Reduction Act of 1980 supplanted the Federal Reports Act of 1942.6The purpose of the 1942 statute was to minimize the burdens of furnishing “information” that were placed by the federal government on business enterprises and others.7 “Information” was defined in the 1942 statute as “facts obtained or solicited by the use of written report forms, application forms, schedules, 3 See §§ 3504(c)(3)(A) (the OMB Director’s information collection request clearance functions "shall include . . ensuring that all information collection requests . display a control number”) & 3507(f) 4 See § 3512 5 For the sake of convenience, we will refer to the position expressed in your memoranda as “OMB's position," for those memoranda are concerned pnmarily with the powers that may be exercised by OMB under the Act 6 The latter statute was 56 Stat 1078, 44 U S C §§ 3501-3511 (1976) 1 See 44 U.S C § 3501 (1976). 389 questionnaires, or other similar methods calling either for answers to identical questions from ten or more persons other than agencies . . . of the United States or for answers to questions from agencies . . . of the United States which are to be used for statistical compilations of general public interest.” (Emphasis added.)8 The Paperwork Reduction Act is described in the report of the Senate Commit­ tee on Governmental Affairs as a “rewrite” of the 1942 statute in response to renewed concerns in the late 1970s about the burdens imposed on the private sector by the government in its collection of information.9 One of the specific changes made by the 1980 Act is its elimination of an exemption for the IRS— and certain other agencies—that had existed under the Federal Reports Act.10 This is one of the chief reasons why the issue before us has arisen at this time. The 1980 Act’s general purposes are to minimize “the Federal paperwork burden for individuals, small businesses, State and local governments, and other persons,” minimize the cost to the federal government of collecting, maintaining, using and disseminating information and “make uniform Federal information policies and practices.” § 3501. The term “burden” is defined as “the time, effort, or financial resources expended by persons to provide information to a Federal agency.”11 Many of the 1980 Act’s key provisions apply to an “information collection request.” The definition of an “information collection request” covers not only the items covered by the 1942 statute, such as a written report form, application form, schedule, questionnaire, or other similar method for collecting informa­ tion, but also a “reporting or recordkeeping requirement.” Thus, as noted earlier, the 1980 statute defines an “information collection request” as “a written report form, application form, schedule, questionnaire, reporting or recordkeeping requirement, or other similar method calling for the collection of information.” (Emphasis added.)12The Act defines the “collection of information” as the use of any of the foregoing methods to obtain facts or opinions in response to “identical questions posed to, or identical reporting or recordkeeping requirements im­ posed on, ten or more persons, other than agencies . . . of the United States” or “answers to questions posed to agencies. . . of the United States which are to be used for general statistical purposes.” (Emphasis added.)13 A “recordkeeping requirement” is defined as “a requirement imposed by an agency on persons to maintain specified records.”14The term “reporting requirement” is not separately defined. In addition to including a “reporting or recordkeeping requirement” in the definition of an “information collection request,” the Paperwork Reduction Act “ 44 U.S C. § 3502 (1976) See H R Rep No 2722, 77th Cong., 2d Sess (1942), S Rep. No 1651, 77th C o n g .,2d Sess (1942); 88 Cong. Rec 9165(1942). See also Emerson Electric Co v Schlesinger, 609 F2d 898, 905 (8th Cir. 1979) (the “two-fold purpose" of the Federal Reports Act was to “eliminate unnecessary duplication of effort by federal agencies in collecting information and to reduce the paperwork burden on persons supplying the information"), Shell Oil Co v Department o f Energy, A ll F Supp. 413, 419-20 (D Del. 1979) 9 S. Rep No 930, 96th Cong , 2d Sess 13 (1980) 10 See 44 U.S C § 3507 (1976) 11 Section 3502(3) 12 Section 3502(11). 13 Section 3502(4). 14 Section 3502(16) 390 strengthened considerably the role of OMB in overseeing agencies’ information collection activities.15 Under § 3504(a), the OMB director “shall develop and implement Federal information policies, principles, standards, and guidelines and shall provide direction and oversee the review and approval of information collection requests” and “the reduction of the paperwork burden.” The general information policy functions of the Director are set forth in § 3504(b). These functions include, inter alia, “developing and implementing uniform and con­ sistent information resources management policies and overseeing the develop­ ment of information management principles” (§ 3504(b)(1)), as well as “ initia­ ting and reviewing proposals for changes in legislation, regulations, and agency procedures to improve information practices . . (§ 3504(b)(2)) (emphasis added). Also, the Director is charged with “coordinating, through the review of budget proposals and as otherwise provided in this section [§ 3504], agency information practices” (§ 3504(b)(3)) and “evaluating agency information man­ agement practices to determine their adequacy and efficiency, and to determine compliance of such practices with the policies, principles, standards, and guidelines promulgated by the Director” (§ 3504(b)(5)). Under § 3504(d), the Director is assigned certain statistical policy and coordi­ nation functions, including the development of “long range plans for the im­ proved performance of Federal statistical activities and programs,” “developing and implementing Government-wide policies, principles, standards, and guidelines concerning statistical collection procedures and methods” and “evaluating statistical program performance and agency compliance with Gov­ ernment-wide policies, principles, standards, and guidelines.” Section 3504(e) assigns to the Director broad records management functions, which include promoting the coordination of records management with the information pol­ icies, principles and guidelines established by OMB under this Act. Section 3504(f) assigns to the Director certain privacy functions, which involve the development and implementation of policies and guidelines regarding informa­ tion disclosure and confidentiality in compliance with the Privacy Act, 5 U.S.C. § 552a. Section 3504(g) assigns to the Director functions involving automatic data processing and telecommunications, including the development of federal policies and guidelines to govern the federal activities in these areas. Taken as a whole, this array of explicit powers granted to OMB under § 3504 is a formidable expression of Congress’ intent to give OMB the tools necessary to act as the central authority in the oversight of the federal government’s information man­ agement processes. Of particular importance to the issues considered in this opinion are the authorities granted the OMB Director under §§ 3504(c) and 3507, including, inter alia, the power to review and approve “information collection requests proposed by agencies” under § 3504(c)(1), to determine whether the collection of information is “necessary for the proper performance of the functions of the agency” under § 3504(c)(2), and to ensure that all information collection 15 See § 3504 391 requests, among other things, “display a control number” assigned to them by OMB under §§ 3504(c)(3)(A) and 3507. In addition, the OMB Director was required, upon enactment of the statute, to “set a goal to reduce the then existing burden of Federal collections of information by 15 per centum by October 1, 1982,” and “for the year following, [to] set a goal to reduce the burden which existed upon enactment by an additional 10 per centum. . . .”16 The Act’s “control number” requirement in §§ 3504(c)(3)(A) and 3507 as­ sumes special significance in light of two additional provisions. Under § 3507(f), an agency “shall not engage in a collection of information without obtaining from the Director a control number to be displayed upon the information collection request.” Also, under § 3512, “no person shall be subject to any penalty for failing to maintain or provide information to any agency if the information collection request involved was made after December 31, 1981, and does not display a current control number assigned by the Director, or fails to state that such request is not subject” to the Act. The statute specifically directs that “[e]ach agency shall be responsible fo r. . . complying with the information policies, principles, standards, and guidelines prescribed by the Director.”17More particularly, the Act requires that an “agency shall not conduct or sponsor the collection of information unless, in advance of the adoption or revision of the request for collection of such information,” the agency has, inter alia, “submitted to the Director [of OMB] the proposed information collection request [and] copies of pertinent regulations and other related materials” and the Director “has approved the proposed information collection request, or the period for review of information collection requests by the Director provided under subsection (b) [60 days, with a possible additional 30 days] has elapsed.”18 In addition to these provisions pertaining to an “information collection re­ quest” as defined in the Act, there is a provision, § 3504(h), dealing specifically with regulations. Since the relationship between § 3504(h) and the procedures set forth in §§ 3504(c) and 3507 regarding an “information collection request” is the major issue in the present dispute, we will explain the requirements of § 3504(h) in some detail. Each agency is directed to forward to the OMB Director a copy of “any proposed rule which contains a collection cf information requirement” as soon as practicable, and no later than the publication of a notice of proposed rulemaking in the Federal Register. (Emphasis added.)19 Within 60 days after the notice of proposed rulemaking is published in the Federal Register, the OMB Director “may file public comments pursuant to the standards set forth in section 3508 on the collection cf information requirement contained in the proposed rule.” (Emphasis added.)20 When a final rule is published, “the agency shall explain 16 Section 3505(1) 17 Section 3506(a). 18 Sections 3507(a)(2) & (3) 19 Section 3504(h)( 1) 20 Section 3504(h)(2). Section 3508 provides that "[bjefore approving a proposed information collection request, the Director shall determine whether the collection of information by an agency is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility . . . ” 392 how any collection cf information requirement” contained therein responds to any comments made by the Director or the public, or explain why the agency rejected those comments. (Emphasis added.)21 The OMB Director is not authorized to disapprove any collection of informa­ tion requirement contained in an agency rule if he received notice of the rule and if he failed to comment on it within 60 days of publication of the notice of proposed rulemaking.22 However, “[n]othing in this section” may be read as barring the Director, in his discretion: (A) from disapproving any information collection request which was not specifically required by an agency rule; (B) from disapproving any collection cf information require­ ment contained in an agency rule, if the agency failed to comply with the requirements of paragraph (1) of this subsection; or (C) from disapproving any collection of information require­ ment contained in a final agency rule, if the Director finds within sixty days of the publication of the final rule that the agency’s response to his comments filed pursuant to paragraph (2) of this subsection was unreasonable; [or] (D) from disapproving any collection cf information require­ ment where the Director determines that the agency has substan­ tially modified in the final rule the collection of information requirement contained in the proposed rule where the agency has not given the Director the information required in paragraph (1), with respect to the modified collection cf information require­ ment, at least sixty days before the issuance of the final rule. (Emphasis added.)23 The subsection requires the OMB Director to “make publicly available any decision to disapprove a collection of information requirement contained in an agency rule, together with the reasons for such decision.”24 Furthermore, § 3504(h)(8) states that the subsection “shall apply only when an agency pub­ lishes a notice of proposed rulemaking and requests public comments.” Al­ though, as noted earlier, the phrase “information collection request” is defined in § 3502(11), the recurring phrase in § 3504(h), “collection of information re­ quirement,” is not separately defined in the statute. II. Arguments Advanced by the Treasury Department and OMB We have received a number of memoranda setting forth both the Treasury Department’s and OMB’s positions regarding the Paperwork Reduction Act’s 21 Section 3504(h)(3) 22 See § 3504(h)(4). 23 Section 3504(h)(5). 24 Section 3504(h)(6) 393 application to regulations that impose paperwork burdens.25 In general, the Treasury Department’s view is that the only provision in the Act setting forth procedures for OMB review and possible disapproval of informational aspects of regulations is § 3504(h). In contrast, OMB’s position is that not only § 3504(h), but also provisions dealing with an “information collection request,” including § 3507, set forth procedures for OMB review of regulations that impose paper­ work burdens. We will summarize in turn each of these opposing interpretations. A . Treasury Department Position The Treasury Department argues that the only provision in the Act setting forth specific procedures for OMB review and possible disapproval of aspects of regulations imposing paperwork burdens is § 3504(h).26 If Treasury is correct in this regard, the exclusive, specific procedural mechanism establishing OMB’s responsibilities for the review of regulations would be that created by § 3504(h), as opposed to the mechanism for OMB’s review of forms and questionnaires established by §§ 3507 and 3504(c).27 The Treasury Department advances three major arguments on behalf of its interpretation. The first argument rests on the language and purposes of § 3504(h) itself. Treasury notes that § 3504(h) establishes a detailed procedural scheme for OMB review of collection of information requirements in regula­ tions, and that no other provision in the statute deals in such a way with regulations. Treasury contends that this fact supports the inference that Congress intended § 3504(h) to provide the exclusive set of specified procedures for OMB 25 We have received the following memoranda from Treasury: (1) Memorandum from Cora Beebe, Assistant Secretary, Department of the Treasury, (o Christopher DeMuth, Administrator for Information and Regulatory Affairs, OM B, dated Dec. 24, 1981, (2) Memorandum from Kenneth Gideon. Chief Counsel, IRS, to Cora Beebe, dated Dec 23, 1981, (3) Memorandum from Arnold Intrater, Assistant General Counsel, Treasury Department, to Cora Beebe, dated Dec. 29, 1981, (4) Letter to Assistant Attorney General Theodore B. Olson from Peter Wallison, General Counsel, Treasury Department, dated Feb 8, 1982; (5) Memorandum to Assistant Attorney General Theodore B Olson from Peter Wallison, General Counsel, Treasury Department, also dated Feb. 8, 1982, and (6) undated staff memorandum, received in March 1982, responding to certain questions we asked at a meeting with Treasury representatives on March 9, 1982. We have received the following memoranda setting forth OM B’s position (1) Memorandum from C. Boyden Gray, Counsel to the Vice President, and M ichael J. Horowitz, Counsel to the Director, Office of Management and Budget, to Assistant Attorney General Theodore B Olson, dated Jan. 15, 1982, containing your opinion request, (2) a draft staff memorandum dated March 1, 1982, responding to Treasury’s letter and memorandum of Feb 8, 1982; and (3) Memorandum from C Boyden Gray, Counsel to the Vice President, and Michael J. Horowitz, Counsel to the Director, Office of Management and Budget, to Assistant Attorney General Theodore B. Olson, dated April 23, 1982, responding to a memorandum from Assistant Attorney General Olson to Robert Bedell, Deputy General Counsel, OM B, dated Apnl 5, 1982, which identified certain issues raised in various submissions this office had received In addition, we have received a memorandum generally supporting the Treasury position from Eric Fygi, Deputy General Counsel, Department of Energy, dated Mar. 26, 1982. 26 Section 3504(b)(2) provides that the “general information policy functions” of the OMB Director shall include “initiating and reviewing proposals for changes in legislation, regulations, and agency procedures to improve information practices . . . (Emphasis added.) Thus, Treasury could not— and does not— argue that § 3504(h) is the only provision dealing at all with regulations. Rather, Treasury contends that the only specific procedures governing OMB review and possible disapproval of informational aspects of regulations under the Act are those set forth in § 3504(h). As discussed earlier, § 3504(b) gives OMB rather broad review, oversight, and coordination powers with regard to regulations. 27 There are a number of differences in the two sets of procedures Section 3504(h), for instance, does not provide for the assignment of control numbers to regulations Section 3507, along with § 3504(c), does require OMB to review and approve information collection requests and to ensure that such requests display control numbers. 394 review and possible disapproval of informational aspects of regulations under the Act. This inference is also said to be supported by the notion that if § 3504(h) were not the exclusive set of specified procedures for OMB review of regulations, but that instead §§ 3504(c) and 3507 also could apply to regulations imposing paperwork burdens, § 3504(h) would be rendered essentially superfluous. In support of this conclusion, Treasury relies in addition on the statement by Senator Kennedy when he introduced on the Senate floor an amendment to § 3504(h) that ultimately was enacted. Under § 3504(h) of the bill as reported out of the Senate Committee on Governmental Affairs, OMB was directed to ensure that agencies, in developing rules and regulations, used efficient methods for collecting information.28 Senator Kennedy expressed concern about § 3504(h) as reported out of the Committee because it “ would permit the Director of OMB to overturn a rule which was adopted by an agency without providing any pro­ cedural rights for the people affected by the rule or for the agency that promul­ gated the rule.” 29 Accordingly, Senator Kennedy introduced an amendment to § 3504(h) containing the detailed set of procedures that we summarized in the previous section. In view of this history, the Treasury Department contends that if a provision of the Act which lacks the procedural formalities set forth in § 3504(h)— namely, § 3507—were available for use as the mechanism for OMB review and potential disapproval of informational aspects of regulations, the fundamental purpose of the amendment to § 3504(h) would be frustrated. Treasury’s second major contention is that the statute’s provisions other than § 3504(h) support its reading of § 3504(h). Section 3507(a)(2)(A) provides that no agency shall conduct or sponsor the collection of information unless “ the agency . . . has submitted to the Director [of OMB] the proposed information collection request, copies of pertinent regulations and other related materials as the Director may specify.” (Emphasis added.) Treasury suggests that this lan­ guage establishes a clear distinction between an “ information collection re­ quest,” on the one hand, and “ related materials” such as “pertinent regula­ tions,” on the other hand. This distinction is said to buttress the idea that regulations should be treated as entirely separate from an “ information collection request” subject to review under § 3507. Furthermore, Treasury’s argument depends on a comparison of the first and last sentences of § 3507(c), as follows: Any disapproval by the Director, in whole or in part, cf a proposed information collection request cf an independent reg­ ulatory agency, or an exercise of authority under section 3504(h) or 3509 concerning such an agency, may be voided, if the agency by a majority vote cf its members overrides the Director’s disap­ proval or exercise of authority. The agency shall certify each override to the Director, shall explain the reasons for exercising 28 See S Rep No 930. 96lh Cong., 2d Sess. 88 (1980). 29 126Cong.Rec 30178 (1980). The language of § 3504(h) as contained in the predecessor Senate bill is quoted at pages 18 and 19 infra. 395 the override authority. Where the override concerns an informa­ tion collection request, the Director shall without further delay assign a control number to such request, and such override shall be valid for a period cf three years. (Emphasis added.) Section 3507(c) was included in the Act to provide a means by which so-called independent agencies could preserve a measure of their “ independence” by overriding OMB disapprovals of their actions under the Act.30 In the first sentence of § 3507(c), reference is made to a “ disapproval . . . of a proposed information collection request . . ., or an exercise of authority under section 3504(h) or 3509. . . . ” (Emphasis added.)31 In the last sentence, only a disap­ proval of an information collection request is referred to: "Where the override concerns an information collection request, the Director shall without further delay assign a control number to such request. . . .” (Emphasis added.) The omission in the last sentence of any reference to exercises of authority under § 3504(h) or § 3509 is viewed by Treasury as supporting its position that Congress never intended that control numbers should be assigned to regulations under § 3504(h), or, indeed, § 3509. Under this interpretation, the last sentence of § 3507(c) is a purposeful reflection of Congress’ intent to keep entirely separate the procedures governing regulations set forth in § 3504(h), on the one hand, and the procedures governing an “ information collection request” set forth in § 3507 (including the control number requirement), on the other hand.32 Treasury’s third main argument rests on certain passages in the legislative history. For instance, Treasury finds support in the explanation of an “ informa­ tion collection request” in the Senate Committee report, which states that the term “refers to the actual instrument used for a collection of information.”33 Treasury argues that a form or questionnaire issued pursuant to a regulation could be an “ actual instrument” for the collection of information, but that it is an unduly strained use of words to say that a portion of a regulation itself could be such an “ actual instrument.” 10 See H.R. Rep No. 835. 96th Cong , 2d Sess 21-22 (1980), S. Rep No. 9 3 0 ,96th Cong., 2d Sess 14-15,47 (1980) 31 Section 3509 provides that the OMB Director “ may designate a central collection agency to obtain information for two or more agencies if the Director determines that the needs of such agencies for information will be adequately served by a single collection agency, and such sharing of data is not inconsistent with any applicable law” 32 Treasury also argues that certain language in § 3504(h) supports its position For instance, Treasury notes that § 3504(h)(2) slates that within 60 days after publication in the Federal Register of a notice of proposed rulemaking, the OMB Director “ may file public comments pursuant to the standards set forth in section 3508 on the collection of information requirement contained in the proposed rule ” The standards set forth in § 3508 apply when the Director is deciding whether to approve a proposed “ information collection request ” Treasury argues that if a collection of information requirement for purposes of § 3504(h) were to be treated in the same manner as an information collection request under § 3507, as OMB suggests, it would have been unnecessary for Congress to cross-reference § 3508 in § 3504(h)(2). In addition, Treasury notes that § 3504(h)(5)(A) specifically provides that nothing in § 3504(h) prevents the OMB Director “ from disapproving any information collection request which was not specifically required by an agency rule ” Treasury suggests that by including this provision in § 3504(h), Congress reaffirmed that the disapproval of an “ information collection request” is an entirely separate matter from the review of a “ collection of information requirement" under § 3504(h) 33 S Rep No 930, 96th Cong , 2d Sess. 39 (1980) 396 In addition, Treasury relies on a statement by Congressman Horton during debate on the bill shortly before it passed the House of Representatives. Con­ gressman Horton’s comments focused on § 3504(h), as follows: OMB's authority to review and comment on portions cf proposed regulations which require the collection of information is supple­ mental to that agency's authority to approve or reject specific information collection requests. No matter what its action may have been with regard to a proposed regulation, OMB may freely approve or reject any specific collection request deriving from such a regulation. (Emphasis added.)34 Treasury stresses that Congressman Horton apparently distinguished between OMB’s authority “ to review and comment on portions of proposed regulations” under § 3504(h), on the one hand, and OMB’s authority “to approve or reject specific information collection requests,” on the other hand (emphasis added). This distinction is said to support Treasury’s basic position that provisions authorizing OMB to “ approve or reject” an information collection request, including § 3507, are necessarily separate from and should not be confused with the procedures forOMB “ review and comment” on regulations under § 3504(h). B. OMB Position The position of the Office of Management and Budget and the Office of the Vice President, as reflected in your memoranda to us, is that Treasury wrongly interprets the Act when it concludes that § 3504(h) is the only provision setting forth specific procedures governing OMB review of regulations imposing paper­ work burdens. A central argument supporting OMB’s position is that the statute’s definition of an “ information collection request” is broad enough to encompass portions of regulations that impose reporting or recordkeeping requirements. The definition is as follows: . . . a written report form, application form, schedule, question­ naire, reporting or recordkeeping requirement, or other similar method calling for the collection of information. (Emphasis added.)35 OMB argues that a regulation which contains a “reporting or recordkeeping requirement” by definition contains an “ information collection request” subject to the procedures of § 3507.36 34 126 Cong Rec 31228 (1980). 33 Section 3502(11) 36 Assuming arguendo that a regulation could contain an “ information collection request” as defined in § 3502(11) of the Act, a question would arise whether the entire regulation should be deemed such a “ request,” or whether only some segregable portion of a regulation containing the request, if any, should be so viewed For purposes of this opinion, we will speak about the possibility of a regulation “containing" an “ information collection request” (when describing OMB's position) without deciding this additional question, which we need not decide for purposes of our analysis 397 OMB buttresses its position by referring to a statement in the Senate Commit­ tee report that “ [t]he imposition of a federal paperwork burden does not depend on how the questions are asked of the respondent, but rather on the fact the Federal government has asked or sponsored the asking of questions.” 37 This statement is said to support the view that the “ actual instrument” used for the collection of information need not be a form, but could be an oral comment, a regulation, or any other means of communicating the request. Furthermore, OMB contends that an interpretation of the Act which does not treat reporting or recordkeeping requirements in regulations as information collection requests subject to § 3507 would frustrate the Act’s underlying pur­ pose, namely, the reduction of the paperwork burden imposed by the federal government. One of the ways the Paperwork Reduction Act sought to achieve this purpose was to eliminate the exemption that had applied to the IRS and certain other entities under the Federal Reports Act.38 OMB argues that the elimination of the IRS exemption is inconsistent with Treasury’s view that IRS regulations may be reviewed by OMB only under § 3504(h). In support of its view that all regulations containing reporting or recordkeeping requirements must be assigned control numbers under § 3507, OMB refers to passages in the legislative history stating that each “information collection request” should be assigned a control number. For example, OMB refers to a statement in the Senate Committee report that “ no agency shall engage in a collection of information without obtaining from the Director a control number to be displayed upon the information collection request.” (Emphasis added.)39 Another passage in the report relied upon by OMB states: The Director’s responsibility to ensure all collections of informa­ tion display a control number corresponds to the requirement of section 3507(0 which states an agency shall not engage in a collection of information without obtaining a control number from the Director. (Emphasis added.)40 In response to Treasury’s discussion of the Senate’s amendment to § 3504(h), OMB suggests that the amendment’s purposes can be achieved under its inter­ pretation of the Act. OMB argues that all that § 3504(h) requires is that once new rulemaking commences, the procedures of § 3504(h) are to be followed. This is consistent, OMB suggests, with its view that under § 3507 OMB can review and approve (or not approve) information collection requests contained in regulations that already were in existence when the Act became effective. If OMB disap­ proves such a request in such a regulation, under OMB’s view the agency has two choices: it could either revise the information collection request in accordance 37 S. Rep. No 930, 96th Cong., 2d Sess 39 (1980). As we discuss later in this memorandum, this statement is taken somewhat out of context by OMB In context, it appears to relate exclusively to the distinction between oral and written requests for information 38 See S. Rep. No 930, 96th Cong , 2d Sess. 13 (1980); H R. Rep. No. 835, 96th Cong., 2d Sess. 19 (1980). 39 S Rep. No 930, 96th Cong , 2d Sess 48 (1980). 40 Id at 42 398 with OMB’s concerns, assuming that this could be done without altering the underlying regulation, or initiate new rulemaking to change the regulation in order to accommodate OMB’s position.41 Under OMB’s interpretation, only the latter action would trigger the procedures of § 3504(h). In addition, OMB disputes the Treasury Department’s reading of the last sentence of § 3507(c), which provides that “ [w]here the override concerns an information collection request, the Director shall without further delay assign a control number to such request, and such override shall be valid for a period of three years.” As noted earlier, the first sentence of the subsection refers to OMB disapprovals of a proposed information collection request or an exercise of OMB’s authority under §§ 3504(h) or 3509. OMB argues that the introductory phrase in the last sentence, “ [w]here the override concerns an information collection request,” implicitly distinguishes between OMB disapproval of an information collection request— whether or not subject to §§ 3504(h )—and an exercise of authority under § 3509, which pertains to the designation of a central collection agency and thus has no bearing on the clearance of information requests. In short, OMB’s position is that § 3507(c) lends no support to Trea­ sury’s view that the Act distinguishes between the review of information collec­ tion requests (and the assignment of control numbers thereto), on the one hand, and exercises of authority under § 3504(h), on the other hand.42 III. Analysis of the Act’s Language and Legislative History Before developing our own analysis of the statute, it appears necessary to clarify precisely the issue before us. As we understand the fundamental dispute presented to us for resolution, Treasury and OMB are not in disagreement about the status of forms, schedules, or questionnaires which are issued pursuant to statutes or regulations and which impose paperwork burdens. Both appear to be in agreement—and we concur—that such forms, schedules, or questionnaires in general are “ information collection requests” under the Act subject, among other things, to § 3507.43 Furthermore, Treasury does not contend that regulations imposing paperwork burdens are not subject to any of the Act’s requirements. Rather, Treasury argues, as stated above, that regulations are subject to the OMB review-and-possible-disapproval mechanism stated in the Act in § 3504(h), not to the mechanism set forth in §§ 3504(c) and 3507. That is the specific issue we must address. In analyzing this issue, we will turn first to § 3504(h) and its legislative history. We then will discuss other provisions of the statute. Finally, we will examine the Act’s general scheme. 41 See Memorandum from C Boyden Gray and Michael Horowitz, entitled “ Paperwork Reduction A ct," at page 4 (Jan. 15, 1982) This memorandum also argues that regulations proposed and promulgated after the Act’s effective date ultimately are to be assigned control numbers under § 3507 after the regulations have been promulgated in a manner consistent with § 3504(h). 42 The arguments set forth in the memorandum of C Boyden Gray and Michael Horowitz dated April 23, 1982, will be discussed in greater detail in section IV below. 43 The ultimate decision, of course, whether or not a particular form is an “ information collection request” will turn on the facts of each case as analyzed in light of the Act’s provisions. 399 A. Section 3504(h) (1) The House and Senate bills. A full understanding of § 3504(h) requires knowledge of the provision’s history. Both of the bills reported out of the responsible committees of the House of Representatives and the Senate contained a § 3504(h), which in both cases granted OMB broad powers to review regula­ tions imposing paperwork burdens. Section 3504(h) of the House bill, H.R. 6410, provided: (h) Other functions of the Director shall include ensuring that, in developing rules and regulations, agencies— (1) utilize efficient methods to collect, use, and disseminate necessary information; (2) provide an early and substantial opportunity for the pub­ lic to comment on proposed means of collecting informa­ tion related to such rules and regulations; and (3) make assessments of the consequences of alternative methods of implementing the statutory goals of such rules and regulations (including alternative methods of collecting information). (Emphasis added.)44 Section 3504(h) of the Senate bill, S. 1411, provided: (h) The Director shall, subject to section 3507(c) of this chap­ ter,45 ensure that, in developing rules and regulations, agen­ cies— (1) utilize efficient means in the collection, use, and dis­ semination of information; (2) provide an early and meaningful opportunity for the public to comment on proposed means for collection of information; and (3) assess the consequences of alternative means for the collection, use, and dissemination of information. (Em­ phasis added.)46 The meaning of these predecessor provisions may be confirmed by reference to the relevant committee reports. Both reports explained that § 3504(h) in the respective bills constituted a general authorization for OMB to assure that agencies, in developing regulations, minimized the paperwork burden imposed by the federal government. As the report of the House Committee on Govern­ ment Operations put it: Under H.R. 6410, the OMB Director is to ensure that the agencies, in developing rules and regulations, use efficient meth44 H R Rep. No. 835. 96th Cong . 2d Sess 44 (1980). Section 3507(c). which gives independent regulatory agencies the power to override OMB disapprovals under the Act. is quoted above 4,1 S. Rep No. 930. 96th C ong., 2d Sess. 88 (1980). 400 ods to collect, use, and disseminate the necessary information. The Committee views this function as similar to the present OMB function of overseeing agency activities under Executive Order 12044 [which was the Carter Administration Executive Order dealing with regulatory reform].47 A question was raised during the hearings as to whether the bill’s language meant the OMB office was to have a regulatory reform function. Regulatory reform is a separate issue from the function assigned by H .R. 6410. Under the bill, OMB is assigned the responsibility for reviewing, [sic] reporting and recordkeep­ ing requirements imposed on the public by regulations. Regulato­ ry reform, on the other hand, deals with major modifications in agency responsibilities. The Committee intends that OMB con­ tinue its effort in overseeing the information aspects of Govern­ ment regulations. However, the assignment cf regulatory reform to the Office of Federal Information Policy would dilute the information functions assigned under this bill. (Emphasis added.)48 As the report of the Senate Committee on Governmental Affairs explained: Section 3504(h) of the bill mandates the Director to ensure that in developing rules and regulations agencies take steps to mini­ mize the information burden of regulations. The Committee views this function as similar to the present OMB function to 47 Executive Order No. 12044, 43 Fed Reg. 12661 (1978), entitled Improving Government Regulations, contained a number of provisions calling upon agency heads to improve the analysis underlying new regulations, particularly regulations that met the order’s criteria of “ significant” regulations in economic or other terms (§ 2(e)) For instance, a regulatory analysis was required for significant regulations Such an analysis was to include a careful examination of possible alternatives to the approach ultimately proposed by the agency and a justification of the choice that was made (§§ 2 & 3). In addition, the order required agencies periodically lo review their existing regulations to determine whether they were achieving the order’s goals, which included, among other things, minimizing compliance costs, paperwork and other burdens on the public (§§ 4 & 1(e)) Section 5 gave general powers of oversight of the order’s provisions to OMB Sections 5(a) and 5(b) required agencies to prepare reports for implementing the order and to submit the reports to OMB for review and approval. Section 5(c) provided that OMB “ shall assure the effective implementation of this Order." Accordingly, Executive Order No 12044 required agencies to review new and existing regulations in terms of such goals as minimizing paperwork and other burdens on the public, and it assigned to OMB general authonty to assure the achievement of these goals The Order did not set forth specific procedures by which OMB was to conduct its oversight activities. 48 H.R.Rep. No 835,96thCong , 2d Sess. 9 (1980) A later passage in the House Committee report underscored that the bill was intended to cover regulations imposing paperwork burdens This point was made in the context of a discussion of the bill’s definition of the “ collection of information," which included a reference to a “ reporting and recordkeeping requirement.” The report noted that the Securities and Exchange Commission had strongly recommended that the bill “ be amended to narrow the definition of ‘collection of information’ to exclude reporting required in connection with statutonly authorized [sic] regulatory, enforcement, or oversight efforts ” The Committee agreed with the SEC about the close relationship between policymaking and information management issues, but added that regulatory agencies in the Executive Branch, such as the Environmental Protection Agency, “ have been able to justify to OMB their need for information used to establish policy or for other purposes.” The Committee concluded that the independent regulatory agencies “ should also be capable of doing so.” The Committee confirmed that its broad definition of a “ collection of information” was intended to clarify the term ’s coverage “to force SEC and any others who might apply a restrictive interpretation to comply with statutory information collection clearance requirements. The Committee fully expects [the] SEC to comply with the ‘more extensive’ definition of collection of information as contained in H R 6410 ” Id at 23 401 oversee agency activities under Executive Order 12044.49 The importance of this linkage between OM B’s existing responsibility for overseeing the regulatory process with the closely related inform ation management functions assigned by the bill was stressed by the Comptroller General in his comments to the Committee[:] This relationship between the regulatory process and infor­ mation management is reflected in OM B’s existing Office of Regulatory and Information Policy. We believe this com­ bination of functions has worked well. The p rin cip a l areas o f grow th in Federal p a p erw o rk burdens are a sso cia ted with new regulations. Therefore, it seems appropriate to retain the existing link between the functions for controlling both regulatory and paperwork burdens. The Committee intends that the Director of OMB continue efforts to oversee the information management and burden aspects of government regulations. This em phasis has great prom ise fo r m inim izing the explosion c f p aperw ork dem ands on the pu blic becau se new regulations are causing the greatest growth in infor­ m ation requirem ents. However, the C om m ittee does not intend that ‘regu latory reform’ issues which go beyond the scope c f inform ation m anagem ent an d burden b e assign ed to the office by the D irector. Recent initiatives such as the trucking and airline deregulations are examples of regulatory reform issues whose assignment to the Office would dilute the information function assigned by this bill. (Emphasis added.)50 Accordingly, both the House and the Senate Committees confirmed that § 3504(h) in the House and Senate bills was designed to ensure that agencies, in developin g regulations, minimized the paperwork burden associated with the regulations. Although OMB’s function under § 3504(h) was acknowledged to have some similarities with the oversight role performed during the Carter Administration under Executive Order No. 12044, it was sharply distinguished by both Committees from general “ regulatory reform” activities. It is notewor­ thy that the Senate Committee report specifically referred to the burdens imposed by “ new” regulations as the principal problem to be addressed. (2) Debate in the Senate and House: the amendment of § 3504(h). If § 3504(h) had been enacted as it was reported out of the Senate and House Committees, it not only would have authorized OMB to review the development of agency rules in terms of paperwork considerations, but also would have done so without specifying in any detail the procedural steps to be taken in the course of such review. However, § 3504(h) was significantly amended on the Senate floor on November 19, 1980. Senator Kennedy provided the following statement of 49 For a description of Executive Order N o. 12044, see note 47, supra 50 S. Rep No 930, 96th C ong., 2d Sess. 8 -9 (1980); see also id. at 15. 402 reasons for his amendment, which passed the Senate in the form in which he proposed it and finally was enacted: A s reported out c f the Governm ental Affairs C om m ittee, the legislation raises som e serious concerns about the role o f the Office o f M anagem ent an d B udget (OM B) in overseeing the information collection activities c f Federal agencies. While I certainly support strong executive management of the Federal regulatory system, this management objective should be tem­ pered by other legitimate public policy concerns. This legislation would perm it the D irector o f OMB to overturn a rule which was adopted by an agen cy without providing any p rocedu ral rights fo r the peo p le affected b y the rule o r f o r the agency that prom u lgated the rule. Thus, even if any agency has complied with all the appropriate procedural requirements for public notice and com­ ment, and has spent years compiling an adequate agency record, this legislation would permit OMB to overturn that agency deci­ sion without even requiring OMB to justify its decision publicly. This violates basic notions o f fairn ess upon which the Adm in­ istrative Procedure A ct is based, as w ell a s concepts c f due p rocess em bodied in the U .S. Constitution. Mr. President, I have proposed several amendments, accepted by the Governmental Affairs Committee, which deal with this, and other concerns. . . . Most importantly, / have spon sored an am endm ent which lim its the authority cfO M B to overturn rep o rt­ ing, recordkeeping, and other information collection require­ m ents ad o p ted by a Federal agen cy in a rulem aking proceeding. This am endm ent establish es a p rocedu ral scheme which governs O M B ’s relationship with the Federal agencies. First, an agency is required to notify OMB as soon as possible, but no later than the date upon which a notice of proposed rulemaking is published in the Federal Register, of a proposed information collection requirement. Second, the Director of OMB is required to comment on the agency’s information collection requirements in the proposed rule within 60 days or forfeit its rights to review those requirements at a later time. In these comments, the Director of OMB would suggest alternative methods of collecting information more efficiently. Third, when the agency adopts its final rule, it must respond to those comments by modifying the information collection require­ ments or by explaining why it rejected OMB’s suggestions. If the agency does not forward a copy of its proposed informa­ tion collection requirements to OMB, OMB retains its right to review that request even though it has not filed comments during 403 the rulemaking proceedings. Moreover, if an agency intends to m odify substantially the information collection requirements which were in the proposed rule, this amendment insures that OMB has at least 60 days to comment on these modified require­ ments before the final rule is issued. This am endm ent w ou ld provide the final po w er to OM B to overturn an agen cy’s recordkeepin g o r reporting requirem ents on ly i f it m ade a public fin din g th at the agency's response was ‘u n reason able.’ . . . This am endm ent would not affect O M B ’s righ t to review form s o r o th er information collection requests which were not specifi­ ca lly requ ired b y an a g en cy rule. In essen ce, th is am endm ent is d esig n ed to fo rc e the agen cy and O M B to co n sider information collection requirem ents ea rly in the p ro c e ss w ith a meaningful opportu n ity f o r p u b lic com m ent on O M B ’s altern atives. (Emphasis added.)51 Several aspects of the foregoing explanation are worthy of note. First, the amendment to § 3504(h) was specifically designed to establish a set of pro­ cedures by which OMB would review and comment on information collection requirements in proposed rules. The amendment was offered in response to the concern that, absent such procedures, OMB could “ overturn a rule which was adopted by an agency without providing any procedural rights for the people affected by the rule or for the agency that promulgated the rule.” 52 A central aspect of the amendment’s procedural scheme was the requirement that OMB state publicly any decision to overturn an information collection requirement in a proposed rule in order to be consistent with what Senator Kennedy described as “ basic notices of fairness upon which the Administrative Procedure Act is based, as well as concepts of due process embodied in the U.S. C onstitution.” 126 Cong. Rec. 30178 (1980). Also, under the amended § 3504(h), OM B’s power ultimately to overturn an agency’s recordkeeping or reporting requirement in a proposed rule is limited to certain circumstances, such as when OMB makes a public finding that the requirement is “ unreasonable.” In addition, Senator Kennedy distinguished OMB’s power to review regula­ tions under § 3504(h) from OM B’s power to review “ forms or other information collectio n requ ests which were not specifically required by an agency ru le!’ (Emphasis added.) This distinction supports the proposition that the review under § 3504(h) of collection of information requirements required by, or con­ tained in, a rule should not be confused with the review under other provisions of the statute of an “ information collection request” not specifically required by a rule. This distinction also is reflected in a statement supporting Senator Ken­ nedy’s amendment made by Senator Danforth, who, after noting that the amend­ ment’s purpose was to “ prevent OMB from undoing a collection of information 51 126 Cong. Rec 30178 (1980) 52 Id 404 requirement specifically contained in an agency rule after that requirement has gone through the administrative rulemaking process if the OMB Director ignores the rulemaking process,” added: / note, however, that this lim itation on OM B's authority is confined to requirem ents specifically contained in agency rules. It does not disturb O M B ’s authority to block information collection requests issued pursuant to rules, neither is it license to agencies to avoid OMB review of paperkeeping requirements bootstrapped to vague requirements in agency rules. (Emphasis added.)53 As Senator Danforth thus confirmed, § 3504(h) as amended does not disturb OM B’s power to reject information collection requests issued pursuant to rules, as distinct from information collection requirements specifically con tain ed in rules. On December 1, 1980, the House of Representatives debated the bill as amended by the Senate.54 The most extensive explanation offered on the House floor of the amended § 3504(h) was the following by Congressman Horton: The most significant difference between the two measures [the Senate and House bills] is the inclusion of a new subsection 3504(h) in the Senate version. The Senate provision is innovative in that it attem pts to link the regulation-w riting p ro cess w ith the collection o f information by the F ederal Governm ent. The p ro v i­ sion d oes this by m andating that OM B review and com m ent on each p ro p o sed regulation which contains a requirem ent f o r the collection o f inform ation. Because subsection 3504(h) which the Senate has added to the bill is extremely complex, I think it is essential to clarify three points about it: First, O M B ’s authority to review an d com m ent on p o rtio n s c f p ro p o se d regulations which require the collection o f information is supplem ental to that a g en cy’s authority to approve o r reject specific information collection requests. N o m a tter w hat its a c ­ tion m ay have been with regard to a p ro p o se d regulation, OMB m ay fre e ly approve o r reject any specific collection request deriv­ ing fro m such a regulation. Second, in reviewing proposed regulations, OMB may disap­ prove any collection requirement which it finds ‘unreasonable’— which is to say, not of sound judgment in the opinion of the OMB Director. The purpose of § 3504(h)(5)(C) [the provision em­ powering OMB to disapprove “ unreasonable” requirements] is 53 126 Cong. Rec 30179 (1980) 54 See 126 Cong Rec. 31227 (1980) (remarks of Chairman Brooks) (noting that one of the major respects in which the Senate bill differed from the House bill was that the former “ insures that OMB's review of agency information collection requests will be coordinated with agency rulemaking procedures established by the Administrative Procedure Act or other similar legislation .” ) 405 not to restrict unduly the ability of OMB to act, but to insure that in acting, OMB [does] have justification for what it does. Third, decisions by OMB under this provision are not reviewable in court. Section 3504(h)(9) states that there shall be no judicial review of any OMB decision to approve or not act upon a proposed regulation; because the power to approve implies the power to disapprove, this paragraph in effect forbids court chal­ lenge of any decision to pursue any of the options open to OMB— approval, disapproval, or inaction. (Emphasis added.)55 O f particular significance in Congressman Horton’s explanation of § 3504(h) is the distinction between OMB’s authority to “ review and comment” on portions of regulations specifically requiring the collection of information under § 3504(h), on the one hand, and OMB’s authority to “ approve or reject” information collection requests deriving from regulations, on the other hand. As Congressman Horton observed: “ No matter what its action may have been in regard to a proposed regulation, OMB may freely approve or reject any specific collection request deriving from such a regulation.” This legislative history of § 3504(h) as amended strongly suggests that it was intended as the exclusive mechanism for OMB review of regulations containing information collection requirements. If this were not so, the provision’s amend­ ment by itself would not have been sufficient to assure that OMB would follow certain prescribed procedures when reviewing rules under the statute. It seems clear from the legislative record that the amendment’s sponsor, Senator Kennedy, considered that the amendment of § 3504(h) would be sufficient to achieve this purpose. Furthermore, the remarks of Senator Kennedy, Senator Danforth, and Con­ gressman Horton— who provided the most extensive comments on the amended § 3504(h) in the legislative history— all draw a distinction between OMB review under § 3504(h) of information collection requirements contained in or specifi­ cally requ ired b y regulations, on the one hand, and OM B’s approval or disap­ proval of information collection requests issued pursuant to or deriving from regulations, on the other hand. This distinction supports the notion that § 3504(h) was intended as the exclusive mechanism for OMB review and possible disapproval of aspects of regulations specifically imposing information burdens, as distinguished from OMB review of information collection requests issued under, pursuant to, or entirely apart from regulation. Finally, this history strongly suggests that § 3504(h) and only § 3504(h )— not § 3507— sets forth the procedures governing regulations for purposes of this Act. It would be entirely inexplicable for Congress on the one hand to establish a detailed and specific process for OMB participation in developing new regula­ tions based on a manifest concern with fairness, due process, and APA pro­ cedures, while on the other hand allowing existing and longstanding regulations 55 126 Cong. Rec. 31228 (1980) 406 to be swept aside or partially overturned without any of the same procedural safeguards. The amendment to § 3504(h) does not make sense if § 3507 could be used with respect to either “ new” or “ old” regulations. (3) The language of § 3504(h) as enacted. Even though nothing in § 3504(h) specifically states that it provides the exclusive procedure for OMB review of collection of information requirements in rules, the provision’s language, in our view, confirms that view. First, although the Act gives OMB broad powers of a general nature over federal information practices, § 3504(h) is the only provision in the statute explicitly establishing a process for OMB review and possible disapproval of collection of information requirements in rules. It would be anomalous for Congress to set forth such a detailed procedure and, at the same time, to permit OMB to follow an entirely different procedure under another provision, such as § 3507, without cross-referencing this possibility in § 3504(h). Although not dispositive, the principle of statutory construction, “ expressio unius est exclusioalterius,” has some application here. This principle may be translated as “ the expression of one thing is the exclusion of another.” Black’s Law Dictionary 521 (5th ed. 1979). Under this maxim, when a statute or other legal instrument expressly includes certain things in one provision— such as the procedure in § 3504(h)— the drafters usually may be understood to have intended to exclude other things not expressly addressed— such as a parallel but markedly different procedure for OMB review of regulations under § 3507— from the coverage of that provision. Id. Although the maxim is by no means conclusive, such a result is normally presumed, absent affirmative contrary indication in a statute’s language or legislative history.56 The application of the maxim is more persuasive when the language of the statute, its legislative history, and other factors point to the same result. Furthermore, § 3504(h) establishes a relatively detailed set of procedures for OMB review of portions of regulations containing collection of information requirements. These procedures would be rendered essentially superfluous if OMB could, at its option, review any given regulation under § 3507, which lacks the procedural requirements of § 3504(h). If this were possible, it is difficult to understand why Congress would have included § 3504(h) in the statute. In addition, certain details of the language of § 3504(h) buttress the conclusion that it provides the exclusive procedural mechanism for OMB review of regula­ tions expressly stated in the Act. Section 3504(h)(2) provides that within 60 days after a notice of proposed rulemaking is published in the Federal Register, the OMB Director “ may file public comments pursuant to the stan dards se t fo rth in section 3 5 0 8 on the collection of information requirement contained in the proposed rule” (emphasis added). The standards set forth in § 3508 are the ones applied by OMB before approving a proposed “ information collection request,” 56 See, e.g ., Morris v. Gressette, 432 U.S. 491, 506 n 22 (1977); Wachovia Bank & Trust Co. v. National Student Marketing Corp., 650 F 2d 342, 354—55 (D C Cir. 1980), cert, denied. 452 U.S. 954 (1981), 2A, C Sands, Sutherland Statutory Construction § 47.25 (4th ed. 1973) 407 such as under § 3507.57 If the drafters of § 3504(h) had intended that OMB could review regulations under § 3507, it would have been unnecessary for them to include in § 3504(h)(2) a specific reference to the standards contained in § 3508, for in that case, the standards set forth in § 3508 would have applied automatically. It also is noteworthy that under § 3508, the OMB Director “ may give the agency and other interested persons an opportunity to be heard or to submit statements in writing.” Section 3508 also contains no requirement that OMB provide a public statement of its views. In contrast, § 3504(h)(2) authorizes the OMB Director only to file public comments about a collection of information requirement in a proposed rule. This contrast further indicates that the procedures of § 3504(h) are fundamentally distinguishable from those applying under other provisions of the Act, including §§ 3507 and 3508. Also, § 3504(h)(5)(A) provides that nothing in § 3504(h) prevents the OMB Director, in his discretion, “ from disapproving any information collection re­ q u est which was not specifically requ ired b y an agen cy ru le" (emphasis added). This subsection thus distinguishes between a collection of information require­ ment reviewed by OMB under § 3504(h), on the one hand, and OMB approval or disapproval of an “ information collection request” that is not “ specifically required” by an agency rule, on the other hand. As noted earlier, such a distinction supports the conclusion that § 3504(h) applies to collection of infor­ mation requirements required by or contained in regulations, whereas other provisions of the Act, including § 3507, apply to an “ information collection request” made pursuant to (or entirely apart from) a regulation. B . O th er P rovision s c f the Act The foregoing interpretation o f § 3504(h), which in our view is most consist­ ent with its language and legislative history, appears consistent with the statute’s other major provisions, which we will discuss in numerical sequence. (1) Section 3501: “Purpose.” Section 3501 states in general terms the Act’s basic purpose, which includes minimizing the federal paperwork burden and coordinating, integrating, and making more uniform federal information policies and practices. OMB argues that the Act’s purpose would be undercut by an interpretation of the Act which construed § 3504(h) as the exclusive mechanism for OMB review o f regulations containing collection of inform ation requirements. We have several difficulties with this argument. First, it is exceedingly general. Although the statement of the Act’s purpose is quite broad and sweeping 57 Section 3508 provides Before approving a proposed information collection request, the Director shall determine whether the collection of information by an agency is necessary for the proper performance of the functions of the agency, including w hether the information will have practical utility. Before making a determina­ tion the D irector may give the agency a n d other interested persons an opportunity to be heard or to submit statements in writing. To the extent, if any, that the Director determines that the collection of information by an agency is unnecessary, for any reason, the agency may not engage in the collection of the information. (Emphasis added.) 408 O and would support an expansive role for OMB, the broad purpose cannot serve to overcome the specific procedures in the Act itself. In fact, the Act has multiple aims, including that of providing in § 3504(h) for a set of procedures that will structure OM B’s review of proposed regulations in a manner consistent with the public procedures governing rulemaking. That particular end must be respected along with the general purpose of reducing federal paperwork burdens and coordinating federal information practices. Furthermore, it does not appear that an interpretation of § 3504(h) as providing the exclusive procedures for OMB’s review of regulations would prevent OMB from effectively discharging its duties of reducing federal paperwork burdens. First, OMB retains full authority under § 3507 to review all forms, question­ naires, and similar information collection requests issued pursuant to rules without having to follow the procedures set forth in § 3504(h). Second, under § 3504(h) itself, OMB ultimately can disapprove a collection of information requirement in certain circumstances.58 Third, as noted above, OMB is given additional, general authorities under other provisions of the Act, including the other subsections of § 3504, to initiate and review proposals for changes in regulations and agency procedures in order to improve government information practices. OMB’s primary concern may be that Treasury’s interpretation of § 3504(h) as the exclusive set of procedures for OMB review of regulations effectively would mean that OMB cannot review regulations such as those promulgated by the IRS that were already in existence when the Act became effective. This would be the case because § 3504(h) rather clearly applies only to rules proposed and promul­ gated after the Act became effective.59 If § 3504(h) is the only provision specifying procedures for OMB review of regulations, it follows that the Act does not establish an express procedural mechanism for OMB review and potential disapproval of regulations already in existence when the Act became effective. OMB objects to an interpretation leading to such a “gap” in the Act’s coverage. However, to the extent that this is a “gap” in coverage, it is not inconsistent with legislative history. As noted above, the Act’s legislative history supports the proposition that Congess believed that “new” regulations caused the greatest paperwork burdens.60 For that reason, it is neither surprising nor anomalous for Congress to have concentrated on fashioning a specific procedure for OMB review of regulations proposed and promulgated after the Act’s effective date. If, on the other hand, Congress has intended to reopen existing regulations— or at 58 See §§ 3504(h)(5)(B), (C) and (D) 59 This is so because § 3504(h) only deals with rules once they are “proposed ” “This subsection shall apply only when an agency publishes a notice of proposed rulemaking and requests public comments ” § 3504(h)(8) furthermore, there would be no practical way for § 3504(h) to apply retroactively to rules already promulgated in final form when the Act became effective That would require submitting all existing rules that impose paperwork requirements to a new notice and comment process. This is simply not contemplated by § 3504(h). Thus, we agree with OMB that § 3504(h) establishes a set of procedures that applies only to rules proposed and promulgated after the A ct’s effective date 60 See S. Rep. No. 9 3 0 ,96th Cong , 2d Sess. 8-9(1980). In the passage from the Senate Committee report quoted above, it is stated that the bill’s emphasis on OMB oversight of the development of regulations “has great promise for minimizing the explosion of paperwork demands on the public because new regulations are causing the greatest growth in information requirements” (emphasis added). 409 least those that contained some reporting or recordkeeping requirements— with the attendant uncertainty that that would cause regarding the legal status of those regulations during the process contemplated by the Act, we would have expected to find express legislative history on the subject. Moreover, OMB does have the authority under § 3504(b)(2) to initiate and review proposals for changes in regulations and to develop some orderly process for such an examination. OMB simply may not employ with respect to existing regulations the procedures, including the disapproval mechanisms, contained in § 3504(h) or § 3507. Finally, we must bear in mind the late Judge Jerome Frank’s admonition: “The legislative process is inherently such that, on occasions, the applications of a statute in practice disclose inconsistencies. While the literal meaning of a statute must yield to its evident purpose or policy, where a statutory provision accords with that purpose, the courts should seldom enlarge that provision, in the interest of symmetry or uniformity, in order to supply an omission.”61 In this case, the literal terms of § 3504(h)—which apply to regulations proposed and promul­ gated after the Act’s effective date—are in accord with the provision’s stated purpose of addressing the major increases in the federal paperwork burden deriving from new regulations. In such a situation, it would be inappropriate to “supply an omission” in § 3504(h) in “the interest of symmetry or uniformity” by reading this or another provision as applying to regulations that were already proposed and promulgated at the time the Act became effective.62 Such a reading also would conflict with the customary canon of statutory construction that, unless there is clear indication to the contrary, a statute should be read as applying prospectively to conditions or events occurring after the statute becomes effective.63 Accordingly, it does not appear that the A ct’s general purpose would be undermined or violated by an interpretation of § 3504(h) as the only provision setting forth procedures for OMB review of regulations under the Act. (2) Section 3502: “Definitions.” One of the A ct’s critical definitions is that of an “ information collection request,” which includes, in addition to a “written report form ,” “application form,” “schedule,” and “questionnaire,” a “reporting or recordkeeping requirement . . . calling for the collection of information.”64 There can be little doubt that, on its face, this definition could be read to apply to portions of regulations imposing reporting or recordkeeping requirements. The question is whether it must or should be read in such a manner. Although we acknowledge the breadth of the definition of an “information collection request,” we do not believe that it must be read to cover portions of 61 G uiseppi v. Walling, 144 F.2d 608, 614 (2d Cir. 1944). See also Addison v H olly H dl Fruit Products, Inc., 322 U .S. 607, 617 (1944) (“ Legislation introducing a new system is at best empirical, and not infrequently administra­ tion reveals gaps or inadequacies o f one sort or another that may call for amendatory legislation But it is no warrant for extending a statute that experience may disclose that it should have been made more comprehensive”). 62 Again, we note that forms issued pursuant to regulations may well be subject to § 3507 Also, if regulations were to be newly proposed or revised, the rulemaking proceedings would also be subject to § 3504(h) 63 S ee generally 2A, C. Sands, Sutherland Statutory Construction, ch. 41 (4th ed 1973). See also note 93 infra. 64 Section 3502(11) 410 regulations imposing paperwork burdens. This conclusion rests in part on the fact that the actual method by which information is collected would be embraced by § 3507 in a manner which could not conveniently cover existing regulations, and on the fact that § 3504(h), the Act’s only provision setting forth specific pro­ cedures for OMB review of regulations, speaks not of an “information collection request” but rather of “collection of information requirements” contained in regulations. Even though it might be possible to view this difference in termi­ nology as highly technical and merely the result of inadvertence, it is more in accord with the canon of construction of giving effect to every word, clause, and sentence in a statute65 to take seriously the difference in terms used by Congress. Congress spoke about an “information collection request” as being subject, inter alia, to § 3507 on the one hand, and about “collection of information requirements” in regulations as being subject to § 3504(h) on the other hand. If Congress had sought to make information burdens imposed by regulations subject to § 3507, it could have so provided in § 3507, either directly or by means of a cross-reference in that section to the provisions in § 3504(h) govern­ ing review of collection of information requirements in regulations. That Con­ gress not only did not do so but also used a different, albeit quite similar, term in speaking about regulations strengthens the conclusion that Congress intended collection of information requirements in regulations to be subject to the pro­ cedures of § 3504(h) alone. Furthermore, we do not believe that the Act’s definition of an “information collection request” should be read as necessarily including “collection of infor­ mation requirements” contained in regulations.66 To do so would, in our view, undermine the intended function of § 3504(h), which was to provide a specific set of procedures to structure OMB review and potential disapproval of collection of information requirements in proposed regulations. If regulations also could be reviewed under § 3507—a provision that lacks the procedures of § 3504(h)— there would be no apparent purpose for including § 3504(h) in the statute. Moreover, a construction of the term “information collection request” as applying to the portion of a regulation that imposes a collection of information requirement would appear inconsistent with the major discussion of the defini­ tion of an information collection request in the Senate Committee report. That report explains: The term ‘information collection request’ refers to the actual instrum ent used f o r a collection c f inform ation. It is the informa­ 65 See 2A, C. Sands, Sutherland Statutory Construction § 46 06 (4th ed 1973) 66 We note that the term “collection of information requirement" is not defined in the Act, although a “collection of information” is defined in § 3502(4) as. . . the obtaining or soliciting of facts or opinions by an agency through the use of written report forms, application forms, schedules, questionnaires, reporting or recordkeeping requirements, or other similar methods calling for either— (A) answers to identical questions posed to, o r identical reporting or recordkeeping require­ ments imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States, or (B) answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes . . 411 tion collection request which must be submitted to the Director in accordance with the clearance requirements of Section 3507. (Emphasis added.)67 The phrase, “actual instrument used for a collection of information,” is not defined in the statute and thus is to be interpreted in light of its ordinary meaning. An “instrument” is generally understood as the means by which, the tool or device by which, something is to be accomplished— that is, in this context, the form or questionnaire or schedule on which information is supplied or submit­ ted.68 In contrast, a “regulation” is defined as “an authoritative rule or principle,” or “a rule . . . having the force of law issued by an executive authority of a government.”69 Accordingly, we believe that the term “actual instrument” refers to the form or some similar reporting or recordkeeping instrument pursuant to which information is transmitted by the citizen to the government, and not the portion of a regulation imposing the information requirement itself. It would appear to strain common usage to assert that such a portion of a regulation is itself an “actual instrument” for the collection of information. Such usage is not strained by speaking of a form issued pursuant to a regulation as an “actual instrument” for the collection of information. Accordingly, we conclude that the term “information collection request” need not and should not be construed as synonymous with the term “collection of information requirement” in § 3504(h). In our view, the Act’s requirements applying to an “information collection request”— including those in § 3507— do not apply as a definitional matter to a “collection of information requirement” in a regulation. (3) Section 3507: “Public information collection activities— submission to Director; approval and delegation.” Section 3507 requires agencies to obtain OMB approval of a proposed “information collection request” before conducting or sponsoring the collection of information.70 Having discussed the definition of an “information collection request,” we must now consider whether the language of § 3507 is consistent with an interpretation of § 3504(h) as providing the only express set of procedures for OMB review of rules under the Act. We believe that it is. First, § 3507(a)(2)(A) requires an agency, before making an information collection request, to submit to OMB “the proposed information collection requ est, c o p ie s o f pertin en t regulations and other related materials as the Director may specify . . (emphasis added). It seems noteworthy that the reference here to “pertinent regulations” is separated by a comma from the reference to an “information collection request.” This separation is consistent with the view that 67 S Rep No 930, 96th C ong., 2d Sess. 39 (1980). 66 See W ebster’s Third New International Dictionary 1172 (1976). 69 Id at 1913; see also B lack’s Law Dictionary 1156 (5th ed. 1979) (defining a regulation as “a regulatory principle” or a “precept” or “rule . prescribed for management or government”). 70 See also § 3504(c) (providing that the information collection request clearance and other paperwork control functions o f the OMB Director “shall include . . reviewing and approving information collection requests proposed by agencies” and “ensuring that all information collection requests are inventoried, display a control num ber and, when appropriate, an expiration date”). 412 portions of regulations which impose paperwork burdens are not themselves information collection requests for purposes of § 3507. If a portion of a regula­ tion imposing a paperwork burden were an information collection request, the list in § 3507(a)(2)(A) of items to be submitted to OMB would appear redundant, for the same item— that is, part of a regulation imposing a paperwork burden— would be referenced twice, once as an “information collection request” and once as a “pertinent regulation.”71 We believe that the reference to “pertinent regula­ tions” means that OMB, in evaluating an information collection request under the criteria specified in the Act, should be furnished all material, including in particular regulations in light of which a form itself must be assessed. Second, § 3507(b) directs OMB, within 60 days of the receipt of a proposed information collection request, to notify the agency concerned of its decision “to approve or disapprove the request.” OMB’s decision is to be made “publicly available,” but is not required to be published or to be accompanied by a statement of reasons. Id. This procedure is sharply distinguishable from that provided for by § 3504(h). Section 3504(h) requires OMB to file public com­ ments on a proposed collection of information requirement in an agency rule (§ 3504(h)(2)), and to make publicly available its reasons for any disapproval of such a requirement (§ 3504(h)(6)). In view of these differences and the canon of construction that statutes should be read to give effect to each provision in them,72 the most natural reading of § 3507(b) is that it must apply in different situations than does § 3504(h). If this were not the case, then as a practical matter the less formal procedures of § 3507 could be expected to supplant the more formal procedures of § 3504(h). Third, in our view § 3507(c) does tend to confirm that OMB is not to assign control numbers to regulations reviewed under § 3504(h). Section 3507(c) provides in pertinent part: Any disapproval by the Director, in whole or in p a rt, c f a p ro p o se d information collection request c f an independent reg­ ulatory agency, or an exercise c f authority under section 3504(h) o r 3509 concerning such an agency, m ay be voided, if the agency by a majority vote of its members overrides the Director’s disap­ proval or exercise of authority. . . . Where the override concerns an information collection request, the D irecto r shall without fu rth er delay assign a control num ber to such a request, and such override shall be valid for a period of three years. (Emphasis added.) 71 It could be argued that the reference to “pertinent regulations” should be read as referring to regulations other than the one containing a particular information collection request This gloss on the statute, however, finds no specific support in the language of § 3507(a)(2)(A). In any event, if Congress intended that portions of regulations could themselves be information collection requests, it chose a most indirect and awkward way of phrasing its intent when it directed an agency to submit to OM B “the proposed information collection request, copies c f pertinent regulations and other related materials as the Director may specify, . ” (emphasis added) 72 Statutory construction must start with the language of the statute concerned See. e g , Detroit Trust Co v The Thomas Barium, 293 U S 21, 38 (1934) (a court is not “at liberty to imply a condition which is opposed to the explicit terms of the statute. . .T o [so] h o ld . . . is not to construe the Act but to amend it.”), Fedorenko v United States, 449 U.S. 490, 513 (1981) 413 The commas after “agency” at two places in the first sentence of § 3507(c)— which deals with any disapproval “of a proposed information collection request of an independent regulatory agency, or an exercise of authority under section 3504(h) or 3509 concerning such an agency, may be voided . . — serve to distinguish between OMB disapprovals of an information collection request, on the one hand, and actions under §§ 3504(h) and 3509, on the other hand.73 The last sentence of § 3507(c) provides that where “the override concerns an informa­ tion collection request,” OMB shall without further delay assign a control number to such a request. The absence in the last sentence of any reference to § 3504(h) or § 3509 suggests that OMB is not to assign control numbers under those provisions. If it were otherwise, one would expect Congress to have included some reference to § 3504(h) in the last sentence of § 3507(c). This analysis of the language of § 3507(c) supports the notion that the Act should be read as providing for two different sets of procedures for OMB review: those in §§ 3504(c) and 3507 (including the assignment of control numbers), which apply to information collection requests (forms, questionnaires and the like), and those in § 3504(h) (not including the assignment of control numbers), which apply to collection of information requirements in regulations. That interpretation of § 3507(c) is sustained by a passage in the Senate Committee report, which distinguishes between an independent agency’s override of an OMB disapproval of an “information collection request” and its override of an exercise of authority under § 3504(h) “concerning rules and regulations”: An independent regulatory agency may be [sic] a majority vote of its members override a n y disapproval of the Director o f an infor­ m ation collection request. The override authority also applies to an exercise o f the D irector's authority under section 3504(h) (con cernin g ru les and regulations) and under section 3509 (des­ ignation of a central collection agency). (Emphasis added.)74 If the term “information collection request” included an information requirement in a regulation, there would have been no reason to add to the statement that an independent agency may override an OMB disapproval of an information collec­ tion request the statement that the override authority “also” applies to OMB action relative to “rules and regulations” under § 3504(h). Fourth, § 3507(d) provides that the OMB Director “may not approve an information collection request for a period in excess of three years.” If this provision applied to portions of regulations containing collection of information requirements, the result would be that at least those portions of regulations containing collection of information requirements could be effective for no more than three years without subsequent OMB approval. Such an arrangement would have major effects on the administrative process that has been in existence at least 73 Under § 3509, the OM B Director “may designate a central collection agency to obtain information for two or more agencies if the Director determines that the needs of such agencies for information will be adequately served by a single collection agency, and such sharing o f data is not inconsistent with any applicable law ” 74 S Rep. No. 930, 96th C o n g .t 2d Sess 15 (1980). 414 since the enactment of the Administrative Procedure Act in 1946. In effect, such an arrangement would involve the operation of a kind of “sunset” provision for agency regulations, under which regulatory provisions would automatically lapse after a certain tim e unless affirmative steps were taken to renew a regulation. Without expressing any view regarding the merits of such a provision or its legality if it were enacted by Congress, we must approach with a sense of caution an interpretation of the Act that would require such a far-reaching result in the absence of any clear expression by Congress that this was its intent. We have not been referred to, nor have we found, any provision or statement indicating specifically that Congress sought, in passing the Act, to subject agency regula­ tions to such a “sunset”-type provision. This is of special significance because a wide class of “sunset” provisions, usually involving a lapse of statutory authority after a certain number of years absent affirmative re-authorization by Congress, has been the subject of the contemporary debate about “regulatory reform.”75 The Act’s legislative history specifically and clearly states that Congress did not intend for the statute to be used as a vehicle for “regulatory reform” in any broad sense.76These factors, taken together, support the view that § 3507(d) should not be read as applying to portions of regulations which contain collection of information requirements. In short, we believe that the language of § 3507 is consistent with the interpretation of § 3504(h) as providing the only set of procedures for OMB review of regulations under the Act. (4) Section 3512: “Public Protection.” Section 3512 provides that “no person shall be subject to any penalty for failing to maintain or provide information to any agency” pursuant to an information collection request made after Decem­ ber 31, 1981, if the request does not “display a current control number assigned by the Director [of OMB], or fails to state that such request is not subject to this chapter.” The purpose of this provision is to provide an effective incentive for agencies to comply with the Act’s requirement that a control number be displayed on each “information collection request.”77 The question here is whether § 3512 was intended to apply in the context of regulations containing collection of information requirements. Although the legislative history is not necessarily conclusive on this point, it does suggest that § 3512 was intended to apply to forms, questionnaires, or similar methods of collecting information, not to regulations as such. For instance, in the report of the House Committee on Government Operations, the following explanation of § 3512 is provided: 75 See. e g . Federal Regulation* Roads to Reform, Final Report o f the American Bar Association’s Commission on Law and the Economy, 105-111 (1979). lb See H R Rep. No 835, 96th Cong., 2d Sess. 9 (1980) (“Regulatory reform is a separate issue from the function assigned by H.R. 6410. . . . [T]he assignment of regulatory reform to the Office of Federal Information Policy would dilute the information functions assigned under this bill”), S. Rep. No. 9 3 0 ,96th Cong , 2d Sess 8-9 {1980) (“|T]he Committee does not intend that 'regulatory reform’’ issues which go beyond the scope of information management and burden be assigned to the Office by the Director”) 77S e * H R Rep. No 835, 96th Cong , 2d Sess 20(1980), S Rep No 9 3 0 ,96th Cong , 2d Sess. 2, 52 (1980) 415 [T]he bill stipulates that no penalty may be imposed on a person who fails to respond to an information collection request which was not approved in accordance with the law’s provisions. . . . H .R . 6 4 1 0 w ou ld allow th e pu blic, b y refusing to answ er these q u e stio n n a ire s, to help c o n tro l “o u tla w form s" (emphasis added).78 Similarly, Senator Chiles, a sponsor of the Senate bill, stated during hearings before his subcommittee in 1979 that “[f]orm s without an OMB num ber on them w ill b e ‘b o o tleg fo rm s’ that the public can ignore.” (Emphasis added.)79 During the same hearing, Senator Bellmon explained: “Under S. 1411 [a] businessman, when he g ets a ll th ese fo rm s, unless they have th at OMB stam p in the upper righth an d corner, that stamp of approval, he will know that th at is a bootleg fo rm that he can throw away” (emphasis added).80 Although other statements in the legislative history refer more generally to § 3 5 1 2 ’s coverage of “ information collection requests,”81 the emphasis on “bootleg forms” in much of the legislative record strongly suggests that Congress particularly had in mind § 3512’s application to forms and similar methods of collecting information. Although this fact alone does not necessarily establish that only forms and similar items— as distinct from regulations— are subject to the control number requirements of §§ 3507 and 3512, it is entirely consistent with such an interpretation of the Act. (5) Section 3518: “Effect on existing laws and regulations.” Section 3518(e) provides that “[njothing in this chapter shall be interpreted as increasing or decreasing the authority of the President, the Office of Management and Budget or the Director thereof, under the laws of the United States, with respect to the substantive policies and programs of departments, agencies and offices . . . .”82 This provision evidently distinguishes between the “substantive policies and programs of departments, agencies and offices,” which are not to be affected by the Act, and the procedural requirements governing paperwork imposed by the Act. We grant that this distinction may be a difficult one to maintain in practice. Nonetheless, Congress required that it be maintained. This fact casts doubt on an interpretation of the Act that would effectively shift, without any clearly ex­ pressed intent to do so, a measure o f substantive control over rulemaking from an agency to OM B.83 78 H .R . Rep. No 835, 96th C ong., 2d Sess. 20 (1980) 79 Paperwork and Redtape Reduction Act c f 1979, Hearings before the Subcomm. on Federal Spending Practices and Open Government o f the Senate Comm on Governmental Affairs, 96th Cong , I st Sess. 7 ( 1979) (remarks of Sen. Chiles). 80 Id. at 12 81 See, e g , S. Rep No. 930, 96th Cong., 2d Sess 52 (1980). “Information collection requests which do not display a current control number or, if not, indicate why nol, are to be considered 'bootleg' requests and may be ignored by the public ” (Emphasis added ) 82 Section 3518(a) states that “ [ejxcept as otherwise provided in this chapter, the authority of an agency under any other law to prescribe policies, rules, regulations, and procedures for Federal information activities is subject to the authority conferred on the Director by this c h a p te r” Although this provision confirms that the Act applies to regulations, it does not provide guidance regarding the question whether § 3504(h) sets forth the only procedures for OM B review of regulations under the Act. 83 See 126 Cong. Rec. 30178 (1980) (“Section 3518 specifically states that this bill does not change existing relations of the President and OMB with respect to the substance of agency programs.”) (Remarks of Sen Chiles.) 416 As noted earlier, one of the chief consequences of OMB’s interpretation is that portions of regulations imposing paperwork burdens would be “approved” by OMB for no more than three years. After expiration of the approval period, they would lapse and require new approval to remain effective. This would arguably give OMB a much greater measure of control over the rulemaking process. Although by itself this point is not particularly definitive, it certainly is not inconsistent with the view set forth above that § 3504(h) provides the exclusive set of procedures for OMB review of regulations under the Act. C. G en eral Schem e c f the A c t We have concluded that an interpretation of § 3504(h) as providing the only express procedures for OMB review and disapproval of informational portions of regulations, as stated in A above, appears consistent with each of the Act’s major provisions in addition to § 3504(h). We believe that such an interpretation also is consistent with the statute’s general scheme. One general argument against such an interpretation that is implicit in OMB’s position rests on the fact that the foregoing interpretation would divide the world of paperwork burdens into basically two categories— those imposed by regula­ tions and those imposed by forms or similar documents— and would control each category with a different set of OMB review procedures. This division, it might be contended, seems at odds with the Act’s general aim of reducing all federal paperwork burdens, not just those imposed by forms, questionnaires or similar methods of information collection. A significant weakness of this argument, however, is that it essentially assumes its own conclusion, namely, that the Act does not distinguish for purposes of OMB review between paperwork burdens imposed by regulations and such burdens imposed by forms of questionnaires. That, of course, is the central question to be resolved here. In addition, this argument presumes that the practical effect of an interpreta­ tion of § 3504(h) as providing the only express procedures for OMB review of regulations would be substantially to undermine OMB’s efforts to reduce the federal paperwork burden. However, as an empirical matter, it has not been demonstrated that such an interpretation of § 3504(h) would so constrict OMB’s effectiveness under the Act. OMB is given broad general powers under § 3504(b). Also, § 3504(h) itself authorizes OMB ultimately to disapprove collection of information requirements contained in proposed regulations en­ acted after the effective date of the Act.84Moreover, there is no dispute that forms or questionnaires issued pursuant to regulations are subject to OMB review under § 3507. Furthermore, this argument fails to take account of a number of passages in the legislative history indicating generally that Congress was especially concerned with the paperwork burden imposed by agency forms, questionnaires, or similar 84 See § 3504(h)(5). 417 items. This is not to say that Congress was not also concerned with regulations, as it clearly was. However, Congress was particularly concerned about forms. This emphasis is reflected at several points in the legislative history. For instance, the House Committee report described the Act as strengthening the Federal Reports Act of 1942 by requiring OMB “to review and approve most of th e fo rm s a n d questionnaires used by the Federal agencies to collect informa­ tion from the public.” (Emphasis added.)85 In another passage, the House report described the basic problem addressed by the Act as follows: “Inefficiencies in current Federal information practice drastically reduce the effectiveness of the Government while, at the same time, drowning our citizens in a sea o f fo rm s, q u estionn aires, a n d reports." (Emphasis added.)86 In a similar vein, the Senate Committee report stated: F ederal p a p e rw o rk requirements, w hether they are tax fo rm s, m edicare fo rm s, financial loans, jo b application s, o r com pliance reports, are som ething each individual touches, feels, an d works on. The cumulative impact is excessive. . . . Several small business counselors testified that many clients refuse to expand their business because of the added paperwork they would face. One cou n selor ta p ed together the fo rm s any p o te n tia l sm all business p e r so n m ust know ju s t to think abou t gettin g into business. They stretch ed a cro ss an entire room. (Emphasis added.)87 Such references to “something each individual touches, feels, and works on” and taped-together forms stretching across an entire room are vivid reminders that Congress sought, by passing the Act, particularly to control the paperwork burden imposed by forms, questionnaires, and similar instruments for informa­ tion collection. The emphasis on forms also is reflected in testimony during hearings on the relevant bills. Of particular interest is the explanation by the former Associate Director of OMB of the elimination of the exemption for the IRS that had been contained in the Federal Reports Act: The argu m en ts th a t were m ade on b eh a lf c f IRS were basically th at new tax fo rm s have to b e prep a red within extrem ely short tim e lim its. The delays would be extremely important and costly to taxpayers. They a lso ra ise d the argum ent that the tax fo rm is extrem ely com plex a n d technical an d there w as not very much that you could d o to im prove the form s as a resu lt[,] and the third argum ent. . . is that the collection of revenue is a unique function and unlike 85 H .R . Rep No 835, 96th Cong , 2d Sess. 18 (1980). 84 Id. at 3 87 S Rep. No. 930, 96th C ong , 2d Sess. 3 (1980). 418 anything else the Federal Government does and, therefore, no­ body outside that function should have a role in deciding what information goes in it. We viewed those arguments as not persuasive. (Emphasis added.)88 At another point in this testimony, the OMB representative further highlighted the underlying importance of the IRS’ forms: From the beginning, OMB’s ability to control reporting burdens has been limited from exemptions to the Federal Reports Act. A ll c f the fo rm s c f the Internal Revenue S ervice and most of the reports of the bank regulatory agencies h ave not been review ed by any unit ou tside that agency . . . . B ecause c f these provisions, alm ost three-quarters c f the p u blic reporting burden is excluded fro m O M B review. (Emphasis added.)89 These and other statements in the legislative history90 confirm that Congress’ attention was drawn particularly to the problem of controlling the paperwork burden imposed by government forms, questionnaires, and similar items. This special concern is consistent with our conclusion that Congress set forth a particularly rigorous mechanism for OMB review of forms under the Act. This does not deny that Congress also was concerned with regulations. However, the many passages indicating Congress’ special concern with forms does establish that Congress did not always consider forms and regulations together and inseparably. Thus, it is not surprising that the Act sets forth two different procedural mechanisms for the review of forms and regulations, respectively. We conclude that the Act’s general scheme, as reflected in its legislative history as well as language, is consistent with the view that § 3504(h) provides the only procedures for OMB review of regulations. 88 Paperwork and Redtape Reduction Act c f 1979, Hearings before the Subcommittee on Federal Spending Practices and Open Government c f the Senate Committee on Governmental Affairs, 96th Cong , 1st Sess. 31-32 (1979) (testimony of Wayne Granquist, Associate Director, OMB) 89 Id. at 25 90 See Paperwork Reduction Act c f 1980, Hearings before a Subcommittee c f the House Committee on Govern­ ment Operations, 96th C ong., 2d Sess 2 (1980) (“While the Government needs a great deal of information from its citizens, a lot can be done to cut down on the number and length o f questionnaires, form s and reports, and lo eliminate duplication and inefficiencies” ) (emphasis added) (statement of Chairman Brooks), id at 89 (“Currently almost 81 percent of the Federal paperwork burden is exempt from OM B review Without the authority lo review the reports and form s required by the independent regulatory commissions and associated with tax, education and health manpower programs, there is little we can do to reduce the public burden imposed by these requirements”) (emphasis added) (statement of Wayne Granquist, Associate Director, OMB). See also Paperwork and Redtape Reduction Act o f 1979, Hearings before the Subcommittee on Federal Spending Practices and Open Government c f the Senate Committee on Governmental Affairs, 96th Cong , 1st Sess. 11 (1979) (“ Past attempts to arrest the proliferation of paperwork have included requirements for Office of Management and Budget and GAO approval of reporting form s. Obviously, this has not been effective in holding down reporting requirements Each and every Federal agency seems lo continue to be able lo argue that they have unique needs which can only be met by creating their own new forms”) (emphasis added) (statement of Senator Bellmon), Privacy and Confidentiality Report and Final Recommendations c f the Commission on Federal Paperwork, Hearings before Subcommittee o f the House Committee on Government Operations, 95th Cong., 1st Sess. 7 (1977) (“We recommended the elimination of all agency exemptions from the requirement for a central review of all planned reports the government uses to collect information from the public. Currently, the IRS with its multitude o f tax form s, as well as the bank regulatory agencies and others are not subject to review by a central management agency such as OMB . to reduce duplication or unnecessary data collections”) (emphasis added) (statement of Chairman Horton) 419 IV. Response to Arguments in the OMB Memorandum of April 23, 1982 In this section, we address certain particular aspects of the memorandum of April 23, 1982, setting forth O M B ’s position. That memorandum clarified some of the issues about which OMB and Treasury are in disagreement and forcefully stated the arguments in favor of O M B ’s view. Some of the arguments contained in that memorandum already have been addressed in this opinion. This section will briefly respond to the remaining issues and seek to dispel any confusion about some of the more important details presented by this dispute. A . The Q uestion to Be Resolved At the outset, it is important to recognize that, in our view, the central question we must address is not the coverage of regulations by the Act as such. We stress this because the April 23, 1982, memorandum suggests that that is the basic question. For example, on pages 1 and 2, in discussing the Senate amendment to § 3504(h), the memorandum states that “[t]he [Kennedy] Amendment neither brought new ‘information collection requirements’ within the Director’s approval responsibilities nor exempted ‘information collection requests’ already covered by the Act. This is the is s u e . . . ” (emphasis added). In fact, there is no doubt that regulations are “covered” by the Act. They would have been “covered” without the Kennedy amendment and they are covered by the version of the Act actually passed. The question is to what extent and in what manner regulations are covered by the Act. B . The P rocedu res Governing O M B R eview o f Regulations It should be recalled, as discussed above, that the Act gives OMB broad powers to review and initiate proposals for changes in regulations wholly apart from the collection of information clearance procedures which are the central focus of the dispute between Treasury and OMB. OMB has the authority conferred on it by § 3504(b), including “initiating and reviewing proposals for changes in . . . regulations” (§ 3504(b)(2)), and “coordinating, through the review of budget proposals . . . agency information practices” (§ 3504(b)(3)). We discuss here only the specific interrelationship between the explicit and distinct procedures established by § 3504(h) on the one hand, and §§ 3504(c) and 3507 on the other hand. Before considering in detail the April 23, 1982, memorandum’s discussion of the procedures governing OMB’s review of regulations, we will set forth in a somewhat schematic manner the four major possibilities in this regard. First, it could be argued that only the procedures set forth in §§ 3504(c) and 3507 could apply to regulations. Second, it might be asserted that only the procedures set forth in § 3504(h) could apply to regulations. Third, it is possible that both sets of procedures— those in § 3504(h) a n d those in §§ 3504(c) and 3507— could apply in any particular case to regulations. Fourth, it is possible that each set of 420 procedures could apply to regulations, but only in mutually exclusive sets of circumstances. The first alternative has no support and contradicts the explicit terms of § 3504(h). The April 23, 1982, memorandum squarely rejects the second pos­ sibility, which is the one embraced by the Treasury Department and is most reasonable in our view. Thus, the OMB memorandum could have adopted the third or the fourth alternative. In fact, it would appear that the memorandum, at different points, embraces both possibilities. For instance, at pages 16 and 17, the memorandum asserts that an agency has a “degree of latitude” in deciding whether to have a regulation that imposes a paperwork burden reviewed by OMB under § 3504(h), or under §§ 3504(c) and 3507: [A ]s a p ra c tic a l matter, the Kennedy am endm ent [§ 3504(h)] a cco rd s each agen cy a degree c f latitude with regard to the procedu res by which the D irector [ c f OM B] w ill review informa­ tion collection requests in regulations which are the subject of notice and comment procedures. If the agency wants OMB to proceed under 3504(h), it submits the NPRM [notice of proposed rulemaking] and related material in accordance with the pro­ cedures of section 3504(h). OMB will then process the request according to 3504(h). I f the agen cy wants OM B to p ro cess the request pu rsuan t to the procedu res cf3 5 0 4 (c ) an d 3 5 0 7 , nothing in the law w ould prevent it from com pleting its rulem aking and then subm itting the rule containing the request to OM B fo r review. (Emphasis added.) However, the OMB memorandum states that this latter process “would run the very risk that the Kennedy amendment was designed to minimize, and should be avoided.” Thus, the OMB memorandum acknowledges that its interpretation of the statute allows for the very problem which § 3504(h) was enacted to prevent. Moreover, OMB practice may have initially insisted upon it, as the memorandum indicates at page 17: The Memorandum submitted by Eric Fygi [Deputy General Counsel, Department of Energy] contends that OMB operates as though it has the power to decide which procedures apply. OMB does not have that authority, although it may well be that during the early months of implementation, it has at times operated as though it did. OMB has taken steps to ensure that the agencies and not OMB make the “ choice” and our new procedures . . . will unambiguously so provide. This passage evidently assumes that it is now up to an agency to decide in any particular case whether to have a regulation reviewed by OMB under § 3504(h) or under §§ 3504(c) and 3507. 421 On the other hand, at pages 11 and 12, the April 23, 1982, memorandum explains the Senate’s amendment to § 3504(h) as an attempt to “harmonize” the A ct’s procedures with the Administrative Procedure Act (APA) in order to “accommodate . . . two potentially conflicting responsibilities.” To accommo­ date this potential conflict, the memorandum suggests, § 3504(h) applies to regulations during the period in which they are subject to notice-and-comment procedures under the APA, whereas §§ 3504(c) and 3507 apply to regulations imposing information requirements in other circumstances. This is also the position taken in the memorandum to us dated January 15, 1982, discussed above.91 Under this view, “[i]f 3504(h) does not apply, then the procedures of 3504(c) and 3507 do . . .” (page 12). A key premise of this interpretation evidently is that both sets of procedures do not apply to any given regulation at the same time. The provisions, in short, are mutually exclusive on this view. Accordingly, the April 23, 1982, memorandum appears to embrace two different and evidently inconsistent positions: first, that in a particular case, both § 3504(h) a n d §§ 3504(c) and 3507 may apply to a regulation (the third pos­ sibility above) and the choice is up to the agency; and second, that in any particular case, either § 3504(h) or §§ 3504(c) and 3507 (but not both) may apply to a given regulation (the fourth possibility above). We responded to the third possibility in section III, where we noted that under such an interpretation, § 3504(h) would be rendered relatively redundant. This is so, in sum, because the purpose of § 3504(h) was to establish a procedural system under which OMB would review regulations under the Act. If it were possible for OMB to review regulations under other provisions— including §§ 3504(c) and 3507— which lack the procedural formalities of § 3504(h), there would be no definite function left for § 3504(h) to fulfill.92 We also note that the optional character of this interpretation flies in the face of the mandatory language of § 3504(h) (“each agency shall forward”). The fourth possibility also is subject to the response that it ignores the exclusive role assigned to § 3504(h) under the statute. The fourth possibility adds the significantly anomalous result that “ new regulations proposed after the A ct’s effective date are subject to § 3504(h), with the procedural checks it was intended to provide, whereas “ old” or “ existing” regulations promulgated before the A ct’s effective date are subject to §§ 3504(c) and 3507 and could be overturned without any of the procedural safeguards of § 3504(h). Our concern with this interpretation is heightened by the fact that it does not give any weight to the longstanding canon of interpretation that statutory provisions should nor­ mally be read as applying prospectively to events and conditions occurring after the law’s effective date: “ [t]he rule is that statutes are prospective, and will not be construed to have retroactive operation unless the language employed in the enactment is so clear it will admit of no other construction.” 93 The language of 91 See note 41 supra and accompanying text. 92 Elaborations on this argument appear supra. 93 This canon is stated in Bauer Grocer Co. v. Zelle, 172 111. 407, 50 N E. 238, 241 (1898); see also 1 Kent, Commentaries 454 (3d ed. 1836); Smead, Rule Against Retroactive Legislation, 20 Minn. L. Rev. 775 (1936); Brewster v. Gage, 280 U .S. 327 (1930), 2A, C . Sands, Sutherland Statutory Construction § 41.04 (4th ed. 1973). 422 §§ 3504(c) and 3507 does not clearly express the intention that it should be applied to regulations already promulgated at the time the Act became effective. C . A dditional Points Several additional comments may be made regarding the April 23, 1982, memorandum. (1) Page 2 of the memorandum relies on a passage in the Senate Committee report stating that the “ imposition of a federal paperwork burden does not depend on how the questions are asked of the respondent, but rather on the fact the Federal government has asked or sponsored the asking of questions.” This is said to support the proposition that such requests could be made by regulations as easily as by forms, questionnaires, or similar items. We discern little guidance in this passage. It does not discuss regulations at all, but rather is directed at explaining that the phrase, “ or other similar methods,” in the definition of a “ collection of information” covers oral as well as written requests. The passage’s meaning may be best understood by considering it as a whole: [T]he Director of OMB has historically included oral techniques as instruments for collecting information. Federal agencies have increasingly been collecting information from the public through the use of telephone surveys and personal interviews. These techniques are used either independently or in conjunction with other information collection techniques such as mail question­ naires. The imposition of a federal paperwork burden does not depend on how the questions are asked of the respondent, but rather on the fact the Federal government has asked or sponsored the asking of questions. In concept, oral data collections are the same as those conducted through written requests for written responses. They should be reviewed under the same standards as written requests.94 It appears to be an unduly strained reading of the foregoing passage to view it as supporting more than the proposition it advances, namely, that oral as well as written requests are covered by the A ct’s definition of the “ collection of information.” (2) At page 2, the memorandum argues that the Kennedy amendment was “ clearly premised on the understanding that all reporting and recordkeeping requirements contained in regulations were required to be routinely approved by the Director” of OMB. In support of this argument, comments by Senators Kennedy and Danforth during Senate debate on the bill are quoted at page 3 of the memorandum. " S . Rep. No 930. 96th Cong . 2d Sess 39 (1980) 423 In our view, the quoted comments do not support the proposition advanced. The Senators’ comments deal with the procedural requirements under § 3504(h) governing OMB review of regulations during the process of the developm ent c f regulations. This is not the same as the review of existing regulations. Further­ more, the Senators do not refer generally to OMB power to approve regulations, as OMB suggests. Rather, Senator K ennedy’s com m ents, in discussing § 3504(h) as reported to the Senate floor and before amendment, concern the power of OMB to “ overturn” a rule. Similarly, Senator Danforth, in discussing the Kennedy amendment to § 3504(h), speaks of OMB’s power of “ undoing a collection of information requirement” in a rule. To overturn or undo an informa­ tional requirement is not the sam e as routinely to approve such a requirement. These points may be confirmed by viewing in context the Senators’ remarks. As Senator Kennedy is quoted at page 3: This legislation [as then drafted] would permit the Director of OMB to overturn a rule which was adopted by an agency without providing any procedural rights for the people affected by the rule or for the agency that promulgated the rule. Thus, even if an agency has complied with all the appropriate procedural require­ ments for public notice and comment, and has spent years compil­ ing an adequate agency record, this legislation would permit OMB to overturn that agency decision without even requiring OMB to justify its decision publicly. I have sponsored an amend­ ment which lim its the au th ority o f OM B to overturn reporting, recordkeeping, and other information collection requirements adopted by a Federal agency in a rulemaking proceeding. (Em­ phasis added.)95 As Senator Danforth is quoted: I am willing to accept the Kennedy amendment, which is intended to clarify the authority of the Director of the OMB to review Federal rules and regulations to determine their impact on Federal paperwork. Essentially, as I understand it, the p u rpose c f the K enn edy am endm ent is to preven t O M B fro m undoing a collection c f inform ation requirem ent specifically contained in an agency rule after th at requirem ent has gon e through the adm inistrative rulem aking p ro cess if the OMB Director ignored the rulemaking process. This seems fair enough. I note, however, that this limitation on OMB’s authority is con­ fined to requirements specifically contained in agency rules. (Emphasis added.)96 95 126 Cong. Rec. 30178-79 (1980) 424 In context, both of these statements about OMB’s ability to “ overturn” an agency decision, or to “ undo” a collection of information requirement, relate only to the provisions of § 3504(h) that give the Director a voice in the process of “ develop­ ing rules and regulations.” They do not suggest that the legislation, either before or after the amendment to § 3504(h), provided a procedure for the review of existing regulations. (3) At page 4 of the April 23, 1982, memorandum, reliance is placed on a passage in the House Committee report explaining that the Paperwork Reduction Act covers “ recordkeeping” requirements, which had not been clearly covered under the Federal Reports Act.97 Although this statement does appear in the House report, it does not answer the question whether pre-existing regulations were to be covered or whether regulations were to be reviewed by OMB under § 3504(h) alone. (4) At page 5, the memorandum states that the Senate amendment to § 3504(h) “ did not create an exemption for [information] requests in existing regulations.” We agree. However, this is beside the point, for before it was amended, § 3504(h) applied only to the process of developing regulations.98 In fact, the Senate Committee report noted that new regulations caused the greatest paperwork burden, thus explaining the provision’s emphasis on such regulations.99 Accord­ ingly, § 3504(h), before it was amended in the Senate, applied only to regulations under developm ent, not to “ o ld ” or “ existing” regulations. After it was amended, § 3504(h) retained this focus. (5) At page 6, the memorandum contends that the Treasury Department’s interpretation in effect would continue the exemption for the IRS that had been eliminated by the 1980 statute. We do not agree. The legislative history appears to make clear that Congress’ attention was focused on the exemption of IRS forms from the Federal Reports A ct.100 That exemption was eliminated. The Act was intended to and does cover the IRS in the same manner as other agencies covered by the Act. (6) At page 10, the memorandum argues that the Treasury Department’s interpretation would “ exempt” from coverage by the Act reporting and rec­ ordkeeping requirements “ in bulletins, instructions, manuals, or guidelines, oral questionnaires, and in any other instrument other than a written form or like document.” We do not agree. Treasury is arguing that only § 3504(h) governs OMB review of regulations under the Act. This argument does not deal with the additional questions of which kinds of documents or whether oral requests would be covered by §§ 3504(c) and 3507. We do not interpret Treasury’s argument as attempting to establish that bulletins, instructions, manuals or guidelines, or oral requests, could not be covered by the Act. (7) At page 13, the memorandum concedes that “ [s]ection 3504(h) admittedly does not provide by its terms for the assignment [by OMB] of a control number” 97 See H.R. Rep No. 835, 96th Cong , 2d Sess 19 (1980). 98 See pages 400 lo 403 supra 99 See pages 401 to 402 supra 100 See pages 418 to 419 supra. 425 to a regulation containing a collection of information requirement. However, the memorandum argues that this fact does not weaken the OMB position because the requirement of a control number for regulations is made implicit by the Act’s other provisions. This argument, however, begs the main question, namely, whether a collection of information requirement in a regulation is synonymous with an information collection request for purposes of OMB review. We believe that the absence of any statement in § 3504(h) that control numbers should be assigned to regula­ tions is simply one additional indication that Congress did not intend to treat regulations in the same manner as information collection requests subject to § 3507. Congress apparently envisioned that a form, questionnaire, or other instrument by which a citizen provides information to the government should have an OMB control number on it. The number’s absence would alert a citizen to the fact that the required process had not been followed, thus allowing the citizen to assist, in a sense, in enforcing the Act’s provisions. There is no specific indication that Congress contemplated the assignment of control numbers to regulations.101 V. Conclusioira After a thorough analysis of the arguments by all parties to this dispute in light of the language and history of § 3504(h), the language and history of the Act’s other provisions, and the statute’s general scheme, we conclude that § 3504(h) establishes a procedure which is mandatory for new regulations but which does not include a process for routine review of, and a disapproval mechanism for, existing regulations. We also conclude that the information collection request procedure set out in § 3507 does not apply to existing regulations. A contrary conclusion, in our view, cannot be reconciled with the Act’s language, the statute’s overall scheme, or its legislative history. Of particular 101 We recently have received from OMB copies of two letters from Congress dealing with the general question of the coverage o f the IRS by the Paperwork Reduction Act. One is a letter to the President signed by the members of the Senate Committee on Government Affairs, dated May 14,1982, expressing opposition to S 2198, the Taxpayer C ompliance Improvement Act of 1982. on the ground that it contains a provision (§ 202) that would exempt the IRS from the Paperwork Reduction Act. We express no view about the bill, but would observe that the points made in the members’ letter do not deal directly with the issue before us. The second letter, dated May 20, 1982, is to the Secretary of the Treasury from Senator Lawton Chiles, a member of the Senate Governmental Affairs Committee and a sponsor of the Act before its passage in 1980. Senator Chiles takes the position that the Act was intended to empower OMB to review collection of information requirements in existing regulations under § 3507 We have tw o responses to this letter First, Senator Chiles acknowledges that § 3504(h) has a narrower scope than § 3507. H is letter attempts to explain § 3504(h)'s operation by arguing that its intent is “ to proceduralize the requirements o f the faperwork Acl, in particular those of Section 3507, with those of the Administrative Procedure Act. . . ” The letter does not deal in specific terms with the basic issue of how the procedures o f § 3504(h) relate to the procedures of § 3507, which is the questton with which we must deal Second, in any event, in interpreting the provisions of the Acl, we must focus on the written legislative history expressed in Committee reports and floor debate prior to the A ct’s passage. It is a firmly established principle that subsequent views of individual Congressmen are to be approached with great caution, for they are not the primary expressions o f legislative intent existing at the time a statute was actually passed See generally NLRB v. Bell Aerospace C o.. 416 U .S. 2 6 7 ,2 7 4 -7 5 (1974); see also United States v Rutherford, 442 U S. 544, 553-54 (1979); B oard c f Governors v First Lincolnwood C orp., 439 U S. 234, 248 ( 1978). In our view, the effects of the Senate amendm ent to § 3504(h) were much more significant than apparently Senator Chiles would agree, for the reasons stated in this opinion. We would observe, however, that if our interpretation of the Act as passed is inconsistent with the present intent of Congress, it is, of course, free to enact corrective legislation. 426 importance is the clearly expressed intent in both the Senate and the House regarding the amendment and subsequent enactment of § 3504(h). Careful analysis of the Act’s other major provisions and of its legislative history further supports our conclusion that § 3504(h) provides the exclusive mechanism for OMB review of regulations. Nonetheless, OMB is given substantial authority over existing regulations by other provisions of the Act, including § 3504(b). We see no insuperable barrier that would prevent OMB from initiating proposals for changes in existing regulations that it deems appropriate under the powers given to it by the Act, which include authority over the IRS and virtually all other agencies of the federal government. T h eo d o r e B . O lson A ssistan t A ttorney G en eral Office c f L egal Counsel 427

Write a legal research memo on the following topic.

Application of 18 U.S.C. § 205 to Proposed “Master Amici” 18 U .S.C . § 205 precludes attorneys in the executive branch from serving as “ m aster am ici” in the C ourt o f Veterans A ppeals. March 12, 1992 M e m o r a n d u m O p in io n f o r t h e C h ie f J u d g e U n it e d S ta tes C o u r t o f V e t e r a n s A p p e a l s You have requested the Department of Justice’s opinion whether 18 U.S.C. § 205 would bar an attorney employed in the government from serving as a “master amicus” in the United States Court of Veterans Appeals. The Attor­ ney General has forwarded your request to our Office. We conclude that an executive branch attorney’s service as a master amicus would be prohibited by the statute. I. You are exploring methods for enlisting pro bono representation for vet­ erans having cases before the Court of Veterans Appeals and believe that attorneys in the executive branch might provide that representation. Letter for William P. Barr, Acting Attorney General, from Chief Judge Frank Q. Nebeker, United States Court of Veterans Appeals, at 2 (Nov. 6, 1991) (“Nebeker Letter”). As you observe, however, 18 U.S.C. § 205 by its terms forbids an officer or employee of the executive branch, except “in the proper discharge of his official duties,” from “actfing] as agent or attorney for pros­ ecuting any claim against the United States” or “act[ing] as agent or attorney for anyone before any department, agency, [or] court . . . in connection with any covered matter in which the United States is a party or has a direct and substantial interest.” 18 U.S.C. § 205(a)(1) & (2).‘ 1 A “covered matter” is defined as “any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter.” 18 U.S.C. § 205(h). There are several exceptions to the prohibition in section 205, only one of which is even arguably applicable here. That exception allows an employee, “if not inconsistent with the faithful performance o f his duties,” to represent a “person who is the subject of disciplinary, loyalty, or other personnel Continued 59 In an effort to avoid section 205’s prohibition, you propose that govern­ ment attorneys act as “master amici” to the Court of Veterans Appeals pursuant to a rule to be adopted by the Court. A master amicus would “advise the Court of any nonfrivolous issue capable of being raised by the [veteran] appellant and assist the Court in understanding the Record and such issue(s).” See Proposed Amendment to Rule 46, Rules of Practice and Procedure, U.S. Court of Veterans Appeals (Proposed Rule 46), attached to Nebeker Letter. You contemplate that the master amicus and the veteran would not have an attomey-client relationship. To attempt to avoid even the appearance of such a relationship, the Court would require service of all papers on the veteran as well as on the master amicus. Nebeker Letter at 2. You believe that the activities of a master amicus would not be “of the kind contem­ plated by the proscriptions of section 205,” especially in view of “the strong government policy in favor of just compensation for our nation’s veterans and the non-adversarial nature of the [Veterans’ Administration] claims adju­ dication process.” Nebeker Letter at 2. IE. We believe that a government employee serving as a master amicus would “act[] as agent or attorney for prosecuting [a] claim against the United States” and would “act[] as agent or attorney . . . before [a] department, agency, [or] c o u rt. . . in connection with [a] covered matter in which the United States is a party or has a direct and substantial interest.” 18 U.S.C. § 205(a)(1) & (2). We therefore conclude that section 205 bars government attorneys from serv­ ing as master amici. A. Section 205 forbids a government employee from acting as an agent or attorney “in connection with any covered matter in which the United States is a party or has a direct and substantial interest.” 18 U.S.C. § 205(a)(2). Cases before the Court of Veterans Appeals clearly are matters in which the United States has a direct and substantial interest, because it will have to pay any claims upheld by the Court. You concur in this conclusion. Nebeker Letter at 2 (“the United States has ‘a direct and substantial interest’ in the matter of a veteran’s claim”). Moreover, the Secretary of Veterans Affairs, in his official capacity, is a party. 38 U.S.C. §§ 7261, 7263. The United States thus is a party in the cases. Therefore, section 205 clearly applies to proceedings in the Court of Veterans Appeals. '(....continued) adm inistration proceedings." 18 U.S.C. § 205(d). Even that exception, however, does not appear applicable to cases in the Court of Veterans Appeals. See, e.g.. Office of Government Ethics Informal Advisory O pinion 85x1 (1985) (veterans’ claims before the Board o f Veterans’ Appeals, with limited exceptions, could not come within the provision for “ personnel administration proceedings,” and sec­ tion 205 thus applies). 60 A separate basis for applying section 205 is that the claims pressed by appellants in the Court of Veterans Appeals are “against the United States.” 18 U.S.C. § 205(a)(1). The United States provides veterans, their depen­ dents, or their survivors with benefits such as com pensation for service-connected disability or death. 38 U.S.C. §§ 1101-1163; see id. § 1110 (“the United States will pay to any veteran . . . compensation as pro­ vided in this subchapter”). Veterans’ claims are first presented to the Secretary of Veterans Affairs. He rules on “all questions of law and fact necessary to a decision . . . under a law that affects the provision of benefits . . . to veterans or the dependents or survivors of veterans.” 38 U.S.C. § 511(a). Those rulings are reviewable by the Board of Veterans’ Appeals, id. § 7104(a), and, in turn, the Court of Veterans Appeals has “exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals.” Id. § 7252(a). The claims of veterans appealing the denial of benefits through this process are “against the United States” in the evident sense that if the United States loses, it will have to pay. See also Office of Government Ethics Informal Advisory Opinion 85x1 (1985) (claims of veter­ ans in Board of Veterans’ Appeals are covered by section 205).2 You suggest that the veterans’ claims process is “beneficial and paternal­ istic rather than adversarial” in the stages before review by the Court of Veterans Appeals. Nebeker Letter at 1; see also Walters v. National A ss’n o f Radiation Survivors, 473 U.S. 305, 309-11, 323-24, 333-34 (1985) (proceed­ ings before the Board of Veterans’ Appeals are ex parte, and no government official appears in opposition to the veterans’ claims). Whatever the nature of the prior proceedings, however, the Court of Veterans Appeals uses an adversary process. Its rules use much of the framework of the Federal Rules of Appellate Procedure. The Secretary of Veterans Affairs is represented by the General Counsel of the Department. 38 U.S.C. § 7263(a). Appellants may be represented by their counsel. Id. § 7263(b). In cases that proceed to a decision in the Court of Veterans Appeals, the Secretary seeks, through this adversary process, to defend the denial of veterans’ claims. Thus, sec­ tion 205 would apply to proceedings in the Court of Veterans Appeals, even if it did not apply to the earlier stages of the claims process.3 2 Veterans' claims are “against the United States” even though, as you state, the United States has a “strong government policy in favor o f just compensation for our nation’s veterans.” Nebeker Letter at 2. Although the United States has an interest in the just compensation of veterans, it also has an interest in ensuring that benefits go only to veterans who have valid claims. Moreover, we do not believe that any policy interest is sufficient in itself to limit the terms of the prohibition in section 20S, although the existence o f the policy interest might argue for a legislative initiative to change the statute. 3 A letter from the Court of Veterans’ Appeals Advisory Committee on Representation asserts that “many aspects o f the traditional adversarial relationships between appellants and appellees do not exist in matters concerning veterans seeking review o f their claims.” Letter to Frank Q. Nebeker, C hief Judge, United States Court of Veterans Appeals, from Barry P. Steinberg, e l al., at 1 (July 9, 1991). In particular, the letter states that “the Department o f Veterans Affairs (VA) and its executive, the Secre­ tary of Veterans Affairs, the respondent in all o f the Court’s cases, see themselves as advocates of veterans’ rights.” Id. Nevertheless, according to your letter, “Congress created the Court o f Veterans Appeals in the model and tradition of the federal courts of appeals." Nebeker Letter at 1. Moreover, as noted above, the Court of Veterans Appeals uses adversary procedures. Thus, although the Secretary’s attitude and approach may differ from that o f most litigants, the proceedings in the Court o f Veterans Appeals are plainly adversarial. 61 The master amicus would act as “agent or attorney” for prosecuting a veteran’s claim. He would fill the gap created by the veteran’s lack of formal legal representation. The Court would appoint a master amicus only “where the appellant is without representation.” Proposed Rule 46. The master amicus would be obligated to “advise the Court of any nonfrivolous issue capable of being raised by the appellant.” Id. Only attorneys qualified for admission to the bar of the Court could serve as master amici. In effect, the master amicus would be responsible for presenting the arguments that would have been made by the veteran’s lawyer if the veteran were repre­ sented by retained counsel: the master amicus would offer the arguments that could be made for the veteran, but not those that could support the government’s position. Thus, the master amicus would carry out virtually all of the functions of appellate counsel for the veteran.4 To be sure, Proposed Rule 46 is obviously crafted to avoid the appearance of a typical attomey-client relationship between the master amicus and the veteran. Proposed Rule 46, for example, would require that papers be served on the veteran, as well as on the master amicus, in order to suggest that no attomey-client relationship exists. Nebeker Letter at 2.5 The master amicus, moreover, arguably would not be the agent of the veteran in a formal sense, because the veteran would have no right to exercise immediate control over the master amicus. Nevertheless, as an initial matter, we believe that the proposal would achieve indirectly what plainly may not be done directly. The master am­ icus, an attorney to be appointed only when an appellant is without representation, would present all of the arguments that could be made for the appellant. Unlike a usual amicus, the master amicus would neither rep­ resent an interest of his own6 nor inform the court about discrete issues on which the court needs expert guidance. He would instead be brought into a case under circumstances in which a court would ordinarily appoint not an amicus, but counsel for the unrepresented party. He would thus perform a role almost identical to that of appointed counsel and would not function as amicus to the court in any ordinary or traditional sense. These circum­ stances suggest that such a mechanism, as a practical matter, would be used to supply an attorney for an otherwise unrepresented veteran. If section 205 could be evaded in this way, the path would be clear for numerous programs 4 T hat a m aster am icus would receive no pay for his services is irrelevant. Unlike 18 U.S.C. § 203(a), section 205 is not confined to receipt or acceptance of "any compensation for representational services.” S e e 18 U.S.C. § 205(a)(1). 5 O rdinarily, briefs are served on counsel representing a party, rather than on the party himself. See, e .g ., U.S. Vet. App. R. 25(b) (service o f papers to be made on representative of party); Fed. R. App. P. 25(b) (service o f briefs to be made on counsel for a represented party); Fed. R. Civ. P. 5(b) (service to be m ade on counsel unless otherwise ordered by court). 6 The Rules o f Practice and Procedure for the Court o f Veterans Appeals require the brief o f an amicus to state “the interest of the amicus.” U .S. Vet. App. R. 29(b). 62 in other contexts in which government attorneys, in effect, prosecute claims against the government. This danger cannot be avoided by arguing that proceedings in the Court of Veterans Appeals might be distinguished from other, more adversarial claims adjudications in the government. As shown above, the master am­ icus, in fact, will occupy an adversary role in proceedings before the Court of Veterans Appeals. Indeed, if the master amicus did not occupy such an adversary role and the appeals process followed the “beneficial and paternalis­ tic” model that you describe for those hearings that precede litigation before the Court of Veterans Appeals, the work of the master amicus would frustrate the statutory arrangements under which cases before the Court of Veterans Appeals are plainly intended to be adversary proceedings. See 38 U.S.C. § 7263. As A textual matter, section 205 reaches any person who “acts as agent or attorney” for a claimant. Thus, section 205 focuses on the function per­ formed by the government employee, and its prohibition may cover persons who are not formally designated as agents or attorneys for claimants. See also United States v. Sweig, 316 F. Supp. 1148, 1157 (S.D.N.Y. 1970) (stat­ ing that “the strict common-law notion of ‘agency’ does not necessarily exhaust the meaning of the prohibition” and that the statute should be given “a different and wider meaning”). Functionally, the master amicus would perform a role nearly identical to that of retained counsel. He therefore would “act as” the attorney for the veteran - as, from your description, he is clearly intended to do. Like its statutory predecessor, section 205 “expresses a public policy that it is improper for a Government employee to prosecute claims against the Government in a representative capacity,” and it protects “the integrity of Government actions by preventing its employees from using actual or sup­ posed influence in support of private causes.” H.R. Rep. No. 748, 87th Cong., 1st Sess. 21 (1961) (“House Report”). Section 205 was intended to prevent the conflict of interest thought to arise from the “opportunity for the use of offical influence.” Id. A master amicus would have such an opportu­ nity to the same extent as retained counsel. See also S. Rep. No. 2213, 87th Cong., 2d Sess. 11 (1962) (statute aimed at “representational activities”).7 Whatever the precise scope of the term “attorney” in section 205, we believe that the term covers such traditional “representational activities” as presenting the legal arguments of a party otherwise lacking representation.8 ’Although section 205 is narrower than its predecessor statute, which extended to “aidfing] or assist[ing]” in the prosecution of a claim, the change was intended to direct the statute m ore precisely to the perceived problem o f official influence: “[T]he inclusion of the term ‘aids or assists’ would permit a broad construction em bracing conduct not involving a real conflict of interest. However, acting as attorney or agent, which would afford the opportunity for the use of official influence, would continue to be-prohibited.” House Report at 21. The functions to be performed by the m aster amicus would raise the exact problem at which section 205 was aimed. * See a lso Office o f Government Ethics Informal Advisory Opinion 88x6 (1988) (“Generally, public officials are not perm itted to step outside o f their official roles to assist private entities or persons in their dealings with the Government.); Office of Government Ethics Informal Advisory Opinion 84x14 Continued 63 Because section 205 is a criminal statute, its construction could be gov­ erned by the rule of lenity, under which a statute is to be read narrowly in order to favor a potential defendant. That rule comes into play, however, only if “a reasonable doubt persists about a statute’s intended scope even after resort to ‘the language and structure, legislative history, and motivating policies’ of the statute.” Moskal v. United States, 498 U.S. 103, 108 (1990) (citation omitted). The rule of lenity applies only if “there is a ‘grievous ambiguity or uncertainty in the language and structure of the Act.’” Chapman v. United States, 500 U.S. 453, 463 (1991) (citation omitted). After resort to the language, structure, history, and motivating policies of section 205, we believe, for the reasons stated above, that there is no “grievous ambiguity or uncertainty in the language and structure” of the statute and that section 205 would cover the proposed master amicus. We therefore conclude that 18 U.S.C. § 205 precludes attorneys in the execu­ tive branch from serving as “master amici” in the Court of Veterans Appeals. DOUGLAS R. COX Deputy Assistant Attorney General Office o f Legal Counsel '(....co n tin u ed ) (1984) (section 205 “was designed to prevent federal employees from engaging in representationaltype activities on behalf o f others in their dealings with the United States”); Bayless M anning, F ederal C o n flic t o f In te rest L a w 85 (1964) (‘T h e emphasis o f Section 205 is upon action in a representative capacity, particularly in a situation involving direct confrontation between the government employee and o th er governm ent employees."); cf. A p p lica tio n o f 18 U.S.C. §§ 2 03 an d 2 05 to F ederal E m ployees D e ta ile d to S ta te a n d L o c a l G overnm ents , 4B Op. O.L.C. 498, 499 (1980) (section 205 does not forbid “purely m inisterial contacts” ). In construing 18 U.S.C. § 207, we have observed that “ [a]n agency or representational relationship entails at least some degree o f control by the principal over the agent who acts on his or her behalf.” M em orandum for M ichael Boudin, D eputy Assistant Attorney General, A ntitrust Division, from J. M ichael Luttig, A ssistant Attorney G eneral, Office o f Legal Counsel, Re: A p p lica tio n o f 1 8 U .S.C. § 2 0 7 (a ) to P a rd o n R eco m m en d a tio n M a d e b y F o rm er P rosecutor, at 6 (Oct. 17, 1990) (citation omitted). S e e a ls o U n ite d S ta te s v. Schaltenbrand, 930 F.2d 1554, 1560-61 (1 1th Cir.) (defendant who had mini­ m al role at a m eeting was not an “agent” under 18 U.S.C. § 207(a) because he could not “make binding com m itm ents on [the supposed principal's] b e h a lf), cert, denied, 502 U.S. 1005 (1991). Although P roposed Rule 46 does not provide for the veteran to direct the m aster amicus, we do not believe that the possible lack o f control would shield the proposed arrangement from section 205. Our opinion discuss­ ing the relevance o f control under section 207 dealt with a former federal employee who performed no traditional representational function but rather limited his participation to offering a “character affida­ vit" for a pardon applicant. In the present proposal, the m aster am icus would perform all the functions o f appellate counsel, and the differences between the m aster amicus and a court-appointed counsel would be so m arginal that the arrangement might be seen as a subterfuge to avoid section 205. 64

Write a legal research memo on the following topic.

Disqualification of Prosecutor Because of Former Representation In matters that are substantially related to an Assistant United States Attorney’s representation of clients prior to joining the government, the attorney should not participate in any investigation or prosecution that foreseeably involves individuals or entities who, although they arguably had not been the attorney’s “clients,” were contacted by the attorney in the course o f his prior representation and indirectly paid the attorney's legal fees, unless the attorney’s participation is essential to the conduct o f the D epartm ent’s law enforcement operation. Under the Supremacy Clause o f the Constitution, a state court or bar association may regulate the conduct of federal attorneys acting in the scope of their federal authority only to the extent that such regulation is not inconsistent with the exigencies of federal employment. January 11, 1985 M em orandum E x e c u t iv e O f f ic e O p in io n fo r U for th e n it e d D ir e c t o r , States Attorn ey s We have been asked to provide advice for a Special Assistant United States Attorney (the AUSA) concerning his potential prosecution of suspected pornographers who indirectly paid his legal fees while he was engaged in the private practice of law. We understand that the pertinent facts are as follows. When in private practice, the AUSA represented an unspecified number of individuals charged with displaying or selling obscene materials, to whom we shall refer collectively in this memorandum as XYZ. He was aware at the time that XYZ had obtained the sexually explicit materials for which they were prosecuted from Corporation A, controlled by a Mr. B. The AUSA was also aware that XYZ received reimbursement for legal fees.from A and B, although the fees were paid to the AUSA’s firm by XYZ. In addition, during this period, the AUSA acknowledged that he communicated with a subsidiary corporation, C, wholly owned by either A or B, regarding the status of certain of these cases. C provided financial support to the individual clients by giving them credit on purchases from C in amounts directly proportionate to the AUSA’s legal fees. The AUSA’s position was created by the Immigration and Naturalization Service to prosecute multi-state conspiracies involving alien smuggling activ­ ity. In this capacity, the AUSA has reviewed FBI reports on A and B that contain facts that the AUSA believes “far exceed any knowledge” he may have had of A and B’s activities when he was active in the defense of obscenity cases. He anticipates that A and B will be the targets of further FBI investiga­ tion and possible prosecution by the Department of Justice. 1 Based on these facts, the AUSA, a member of the Arizona Bar,1has inquired whether he should disqualify himself from participating in the counseling of FBI agents in their pursuit of covert criminal investigations that may involve A and B. He has also inquired whether ethical considerations would preclude him from prosecuting a conspiracy case involving A and B. The starting point for an analysis of attorney disqualification would ordi­ narily be the Model Code of Professional Responsibility of the American Bar Association (Model Code). The Model Code has been expressly adopted by the Supreme Court of Arizona, with certain amendments. 17A Ariz. Rev. Stat. Ann., S. Ct. Rule 29(a) (1983). The Department of Justice has consistently maintained, however, that rules promulgated by state bar associations that are inconsistent with the requirements or exigencies of federal service may offend the Supremacy Clause of the Constitution.2 This position is supported by the case of Sperry v. Florida, 373 U.S. 379 (1963), in which the Supreme Court held that when Congress and the Executive had authorized nonlawyers to practice before the United States Patent Office, the State of Florida could not prohibit such conduct as the unauthorized practice of law. Similarly, this Office has concluded that a Department attorney, acting under Departmental orders in an undercover operation, cannot be guilty of violating state ethical rules “if his acts are authorized by federal law, including the Department’s regulations prescribing ethical standards,” just as a federal employee, under appropriate circumstances, may perform authorized federal functions without regard to the limits of state criminal law. See Memorandum for Thomas P. Sullivan, United States Attorney, Northern District of Illinois, from Mary C. Lawton, Deputy Assistant Attorney General, Office of Legal Counsel 14 (Aug. 1, 1978) (citing In re Neagle, 135 U.S. 1, 75 (1890)). We analyze below the Model Code and its treatment by the courts of various jurisdictions. When possible, we have relied primarily on decisions of federal courts, but have found it necessary to include some decisions of state courts as well. We do not assume that any of these decisions are binding on the federal officials who will ultimately make the decision about the AUSA’s participation in this case, unless mandates of the United States Constitution are involved. Rather, the principles are explained in order to assist you in formulating the managerial judgment that will determine the resolution of the issue. In addition to the Model Code, we have sought general guidance from the American Bar Association’s new Model Rules of Professional Conduct, which replaced the old Model Code in August 1983, but which have not yet been adopted by most states. We discuss, first, the attorney’s duty of confidentiality to former clients and its 1The ALISA is also a m em ber o f the Illinois Bar. Because o u r conclusions are based on general principles, we do not an ticip ate that any different result w ould obtain under Illinois law. Illinois has adopted the ABA M odel C ode w ith no relevant amendments. S ee II0 A III. Ann. Stat. foil. I 772 (Sm ith Hurd Supp. 1983). 2 The Suprem acy C lause provides that the “C onstitution, and Law s o f the U nited States which shall be made in P ursuance th e re o f. . shall be the supreme Law o f the Land; and the Judges in every State shall be bound thereby, any T hing in the C onstitution or Laws o f any State to the C ontrary notw ithstanding.” U.S. Const, art. VI, cl. 2. 2 application to the present circumstances. In Part II, we address other considerations that may bear upon your decision regarding the disqualification. Finally, we address the application of the general principles to Department of Justice officials. For the reasons discussed below, we conclude that the AUSA’s participation in these obscenity prosecutions probably would not violate the mandatory Disciplinary Rules of the Model Code so as to justify disciplinary action by the Arizona Bar against him. Nevertheless, we conclude that the attorney’s duty to preserve client confidentiality under the Model Code could reasonably be applied to information that the AUSA received about A and B in the course of his prior representation. In addition, we believe the Ethical Considerations of the Model Code, including the requirement that attorneys avoid even the appearance of professional impropriety, as well as the constitutional protec­ tions afforded a criminal defendant, might lead a court to bar the AUSA’s involvement in the prosecution of individuals whose interests are so closely intertwined with the subject of his former professional activities. The ethical obligations of attorneys are only heightened in the case of a public prosecutor. We therefore recommend for prudential reasons that the AUSA not participate in any investigations or prosecutions foreseeably involving Corporation A, Mr. B, or Subsidiary C that relate to his prior representation, assuming that his participation is not considered essential to the conduct of the Department’s law enforcement operation, even though his disqualification may not be clearly compelled by the prevailing ethics rules. I. Duty of Confidentiality The general principles are simply stated. First, a lawyer has a duty to protect confidential information of “one who has employed or sought to employ him.” Model Code EC 4-1 (1979). Canon 4 of the Model Code provides that “a lawyer should preserve the confidences and secrets of a client,” and therefore a lawyer may not use such confidences to the disadvantage of the client. Model Code DR 4-101(B)(2). This duty outlasts the lawyer’s employment, terminat­ ing only upon consent of the client. Model Code EC 4-6. The current Model Code contains no procedural disqualification provision for one whose subse­ quent employment might require disclosure of client confidences.3 Refusal of such employment is suggested in EC 4—5 as an aspirational standard only. Nevertheless, courts have held that Canon 4 implicitly requires disqualifica­ tion if divulgence of client confidences could occur.4 In order to encourage clients freely to discuss confidential problems with their attorneys, courts have 3 Canon 5, w hich provides that “a law yer should exercise independent professional judgm ent on beh alf o f a client,” does contain a disqualification provision. DR 5 - 105(A) requires a law yer to decline proffered em ploym ent if the exercise o f his independent professional judgm ent is likely to be adversely affected by a conflict o f interest. The purpose o f this provision is prim arily to protect the lawyer from com peting client interests, rather than to protect the confidentiality o f client inform ation. A merican B ar Foundation, Annotated Code o f P rofessional Responsibility 228 (1979). Although the provision is arguably relevant here, its principal application is in sim ultaneous m ultiple client representation. Id. 4 This determ ination is based, in part, on EC 4 -5 , which states that “no em ploym ent should be accepted that m ight require such disclosure [of client confidences]." 3 imposed a strict prophylactic rule which bars an attorney from representing an interest directly adverse to that of a former client. Cord v. Smith, 338 F.2d 516, 524-25 (9th Cir. 1964); Bicas v. Superior Court, 567 P.2d 1198, 1201 (Ariz. Ct. App. 1977). Imposing such a disability upon the attorney is designed to protect the former client from even the possibility of disclosure and wrongful use of information conveyed in confidence. Meyerhofer v. Empire Fire & Marine Ins. Co., 497 F.2d 1190, 1196 (2d Cir.), cert, denied, 419 U.S. 998 (1974); see also Annotation, 52 A.L.R.2d 1243, 1250 § 4 (1957). In the case of public prosecutors, the obligations arising out of Canon 4 of the Model Code may be compounded by constitutional considerations. A prosecutor whose former dealings with the defendant have made him privy to facts related to the prosecution may be barred from the case in order to preserve a fair and impartial trial as guaranteed by the Due Process Clause of the Fifth or Four­ teenth Amendment. Gajewski v. United States, 321 F.2d 261, 267 (8th Cir. 1963); Young v. State, 111 So. 2d 345, 347 (Fla. Dist. Ct. App. 1965); People v. Rhymer, 336 N.E.2d 203, 204 (111. App. Ct. 1975). The special status of a prosecutor is recognized in the Model Code: the prosecutor has an obligation not merely to convict but to seek justice. Model Code EC 7-13. Accordingly, the courts have developed a rule for the disqualification of prosecutors, which has frequently been stated as follows: “an attorney cannot be permitted to participate in the prosecution of a criminal case if, by reason of his professional relations with the accused, he has acquired knowledge of facts upon which the prosecution is predicated or which are closely interwoven therewith.” Young v. State, 111 So. 2d 345, 346 (Fla. Dist. Ct. App. 1965); People v. Gerold, 107 N.E. 165, 177 (111. 1914); State v. Leigh, 289 P.2d 774, 111 (Kan. 1955); see Annotation, 31 A.L.R.3d 953, 957-58 (1970). This disqualification rule rests on a generally irrebuttable presumption that in the course of an attomey-client relationship, confidences were disclosed to the attorney by the client. A court will not inquire whether disclosures were in fact made or whether the attorney is likely to use confidences to the detriment of his former client. See, e.g., NCK Org. Ltd. v. Bregman, 542 F.2d 128, 134 (2d Cir. 1976); Richardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1384—85 (3d Cir. 1972), cert, denied, 411 U.S. 986 (1973). The court’s inquiry is limited solely to whether the matters of the present proceeding are “substantially related” to matters of the prior representation. T.C. Theater Corp. v. Warner Bros. Pictures, 113 F. Supp. 265, 268-69 (S.D.N.Y. 1953). The courts have generally applied the disqualification rule and the presump­ tion rigorously. For example, in the leading case of Ernie Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973), Judge Kaufman, writing for the court, held that a plaintiffs counsel in patent litigation, who had previously represented the part-owner of the defendant corporation involving an issue identical to that in the present proceedings, would be disqualified from assert­ ing the related claim against his former client. Interpreting Canon 4, the court adopted the rule that “[w]here it can reasonably be said that in the course of former representation an attorney might have acquired information related to 4 the subject matter of his subsequent representation, the attorney should be disqualified.” Id. at 571. The courts will not require the former client to demonstrate that his attorney actually possessed confidential information in addition to having access to it, for even if such proof were available, the former client might not be able to use it for fear of disclosing the very confidences he wishes to protect. See Note, Attorney’s Conflict o f Interests: Representation of Interest Adverse to that o f Former Client, 55 B.U. L. Rev. 61,76 (1975); Alpha Inv. Co. v. City of Tacoma, 536 P.2d 674, 676 (Wash. Ct. App. 1975). The courts will not presume irrebuttably that an attorney has acquired confidential information when the person seeking disqualification was not actually the attorney’s client, but was the codefendant of a former client in the prior proceeding. The mere possibility that in preparing a cooperative defense the attorney may have received confidences of the codefendant is insufficient to establish grounds for disqualification. Under these circumstances, the court will disqualify the attorney only if it finds that the attorney was actually privy to confidential information of the former codefendant. Wilson P. Abraham Constr. Corp. v. Armco Steel Corp., 559 F.2d 250, 253 (5th Cir. 1977); Fred Weber, Inc. v. Shell Oil Co., 432 F. Supp. 694, 697 (E.D. Mo. 1977). The presumption has also been found to be rebuttable in other situations in which the person urging disqualification was not himself an actual client of the attorney. For example, a prosecuting attorney was entitled to rebut the infer­ ence that as a result of his former representation of the defendant’s father-inlaw in a separate matter, he had acquired confidences or secrets related to the defendant’s case. United States v. Newman, 534 F. Supp. 1113, 1125-26 (S.D.N.Y. 1982). These principles define the inquiry that will determine whether and to what extent the AUSA owes a duty to protect confidences he may have acquired from A and B in the course of his former representation. First, we must consider whether A and B were “clients” of the AUSA and can thus claim the benefit of the irrebuttable presumption that he possesses confidences of theirs. Second, if A and B were not “clients” in the traditional sense of the word, we will examine whether they are nevertheless entitled to be protected by a continued obligation of confidentiality arising out of Canon 4. Finally, we must determine whether there is a “substantial relation” between the former obscenity representation and the prospective prosecution of A and B. A. Client Status o f A and B The Model Code does not define the term “client.” This omission poses problems in applying the Model Code’s provisions to the undefined relation­ ship that the AUSA maintained with Corporation A, Mr. B and Subsidiary C, who financed and participated in the AUSA’s representation of criminal defen­ dants. “The canons and disciplinary rules do not address themselves frankly and explicitly to this special set of relationships, and there is awkwardness in attempts to apply the canons and rules.” Moritz v. Medical Protective Co., 428 F. Supp. 865, 872 (W.D. Wis. 1977) (referring to interrelationships among insurer, insured, and attorney). 5 This awkwardness can be alleviated somewhat by resort to analogies. Like the attorney who represents both an insured and an insurer, the AUSA had direct obligations to his clients XYZ, while maintaining some concomitant relationship with the financiers A and B. One court, acknowledging that such a situation is sui generis, held that the insurer, which chooses the attorney for the insured, is the “client” of the attorney and the attorney must observe Canon 4 obligations to both the insurer and the insured. Id. Thus, when an insurance policy imposes on the insurer the duty to defend a claim against the insured and entitles the insurer both to select the lawyer who will represent the insured and to supervise the defense, then that insurer enjoys an attomey-client relationship with the attorney it selects. Id. This determination is supported by the “commu­ nity of interest” that exists between the insurer and the insured. ABA Comm, on Professional Ethics, Formal Op. No. 282 (May 27, 1950). That interest is largely financial. Moritz, 428 F. Supp. at 872. An application of this analogy to the AUSA’s case would require further facts than those provided to us. It would be germane, for example, whether A and B had a formal agreement to pay the legal fees of XYZ; whether A and B had the right to choose and supervise the attorney for the defense of XYZ; and whether A and B also had agreed to pay fines or penalties imposed on XYZ, so as to establish a community of financial interest. Without this information, we can only identify the possibility that A and B could be considered “clients” of the AUSA by resort to insurance case law. Another possible analogy is the relation between a parent corporation and the attorney for a subsidiary corporation. Some authorities indicate that in such a situation, the parent can be considered a client of the attorney. In one case, the court held that the evidentiary attomey-client privilege, notwithstanding the general rule that the privilege is waived if an outsider is made privy to attomeyclient information, was preserved when an officer of the parent company participated in confidential discussions between the subsidiary and its attorney. In this context, a third person who was informed in order to further the interest of the principal client, and to whom disclosure was “reasonably necessary” to further the purpose of the legal consultation, was found a “client” to the extent of preserving the privilege. Insurance Co. ofN. Am. v. Superior Court, 166 Cal. Rptr. 880 (Ct. App. 1980). In order to apply this analogy conclusively, we would again need further facts upon which to base our judgment. For example, it would be significant whether the communications between A and B and the AUSA were made to further the defense of XYZ, whether they included any confidences or secrets of XYZ,5 and whether XYZ consented to such disclosures.6 5 T he C ode defines “confidences” as “inform ation protected by the attom ey-client privilege under appli­ cable law s,” and “ secrets” as “o th er information gained in the professional relationship that the client has requested b e held inviolate o r the disclosure o f which w ould be em barrassing or w ould be likely to be detrim ental to the clien t.” M odel Code DR 4 -1 0 1 . The ethical obligations o f an attorney consequently encom pass not only privileged information b u t also other inform ation. 6 If the com m unications had included confidences o r secrets, an d no consent had been given by XYZ, then either A o r B w ould have been included in th e client relationship, or the AUSA might have breached his obligation to p ro tect the confidences of XYZ u n d e r DR 4 -1 0 1 (B ). 6 Even without identifying a third-party payor as a “client,” the Supreme Court has recognized the danger of divided allegiance that may result from third-party payment of legal fees, especially in a criminal case. In Wood v. Georgia, 450 U.S. 261 (1981), the Court found an impermissible conflict of interest in an attorney’s representation of two employees of an “adult” movie theater charged with distributing obscene materials. The conflict arose be­ cause, under an employment agreement, the owner of the theater undertook to furnish several forms of assistance to the employees if they should face legal trouble as a result of their employment, including payment of legal fees, fines, and bonds. Id. at 266. Recognizing a significant risk that a lawyer in this situation will be reluctant to encourage his client to offer testimony against the employer or otherwise to take action detrimental to the employer in marshaling a defense, the Court concluded that the employees had been deprived of due process rights. Id. at 269. Although the Court did not explicitly find that the employer was itself a “client” of the lawyer, the Court stated that the lawyer was the “agent” of the employer, and thus subject to a possible conflict of interest. Id. at 267; see also In re Abrams, 266 A.2d 275, 278 (N.J. 1970) (it is “inherently wrong for an attorney who represents only the employee to accept a promise to pay from one whose criminal liability may turn on the employee’s testimony”). Thus, the courts have recognized that in the criminal setting, the loyalty incident to a fee arrangement can be significant, although these cases do not resolve whether the loyalty gives rise to a duty of confidentiality to the third-party payor.7 Although these examples do not resolve the AUSA’s issue directly, they illustrate the possibility that persons not immediately identifiable as “clients” may still be placed in a position to share some of the attributes of an attomeyclient relationship. Some authorities, in contrast, have determined that the payment of legal fees by a third person, in and of itself, does not create an attomey-client relationship between the attorney and his client’s benefactor sufficient to sustain a claim of privilege for communications between them. Priest v. Hennessy, 409 N.E.2d 983, 987 (1980) (third party merely paid legal fees; court refused privilege to fact of fee arrangement); see ABA/BN A Lawyer’s Manual on Professional Conduct 80—4301 (1984) (submission of Maryland State Bar Association Committee on Ethics). Thus, the third-party payment of legal fees without further participation in the defense may be insufficient to establish a basis for the strict evidentiary attomey-client privilege or the more fluid Canon 4 relationship. The determination whether A and B were, in fact, “clients” of the AUSA would entail the application of facts beyond the information provided to us. However, we do not believe such a determination is necessary to reach our conclusion here. The Model Code and the case law have given an expansive 7 The M odel Code discourages third-party fee arrangem ents. It perm its such an arrangem ent only with consent o f the client after full disclosure, and charges the attorney w ith the responsibility to ensure that his independent judgm ent is not impaired thereby. M odel Code DR 5 -1 0 7 , EC 5 -2 3 . The Model C ode does not make clear, however, w hat obligations, if any, the law yer may have to those who pay his fees. 7 interpretation to the attomey-client relationship in the context of Canon 4, as discussed below. In our view, they provide a sufficient basis for encompassing A and B within the scope of the AUSA’s obligations of confidentiality, irre­ spective of a formal attomey-client relationship. B. Alternative Basis fo r Obligation o f Confidentiality The Model Code states clearly that the obligation of a lawyer to protect confidences is broader than the scope of the evidentiary attomey-client privi­ lege. Model Code EC 4—4.8 Not only does it protect a client’s “secrets” as well as “confidences,” see supra note 5, but it also is owed by the attorney to “one who has employed or sought to employ him.” Model Code EC 4—1. The Model Code does not explain why this phrase was chosen rather than the term “client.” It is not clear whether the phrase “one who has employed or sought to employ him” was intended to include one who pays the legal fees of a client, but the effect of the phrase is to broaden the class of individuals to be protected by the policy of encouraging frank communications for preparation of an attorney’s case. Interpreting the attorney’s Canon 4 duties, courts have frequently applied the Canon broadly in an effort to protect the confidences of those who might not qualify as “clients” in the strict sense of the term: “The sole requirement under Canon 4 is that the attorney receive the communication in his professional capacity.” Doe v. A Corp., 330 F. Supp. 1352,1356 (S.D.N.Y. 1971), affd , 453 F.2d 1375 (2d Cir. 1972). In addition, there is authority for the proposition that a “fiduciary obligation or an implied professional relation” may exist in the absence of a formal attomey-client relationship. Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1319 (7th Cir. 1978). Thus, “‘[i]t is clear that where an attorney receives confidential information from a person who, under the circumstances, has a right to believe that the attorney, as an attorney, will respect such confidences, the law will enforce the obligation of confidence irrespective of the absence of a formal attomey-client relationship.’” United States v. Newman, 534 F. Supp. 1113, 1125 (S.D.N.Y. 1982) (quoting Nicholas v. Village Voice, Inc., 417 N.Y.S.2d 415, 418 (Sup. Ct. 1979)). In one case, the Florida District Court of Appeal found that Canon 4 precluded a prosecutor, who had been a member of a public defender’s office that represented the defendant, from participating in the prosecution of the case if he had ever interviewed the defendant in his former capacity. The court thus did not invoke the irrebuttable presumption that confidences were conveyed to the attorney — a presumption accorded only to former “clients” of an attorney — but instead permitted the defendant to establish that he had, in fact, con­ veyed confidences. Without seeking to identify an “attomey-client” relation­ ship between the prosecutor and the accused, the court considered whether the prosecutor’s former “professional relations” and “dealings” with the accused 8 T he M odel R ules o f Professional Conduct explain that “[t]he confidentiality rule applies not merely to m atters com m unicated in confidence by the clien t but also to a ll inform ation relating to the representation Rule 1.6 com m ent, 52 U .S.L .W . 6 (Aug. 16, 1983) (em phasis added). 8 were sufficient to deprive the accused of a fair trial. Young v. State, 177 So. 2d 345, 346 (Fla. Dist. Ct. App. 1965). The Nebraska Supreme Court disqualified a prosecutor who had had a “loose office arrangement and association” with one of the defendant’s lawyers, even though the partnership had been practically dissolved, each partner practiced separately, they did not share fees, and no conversation regarding the defendant had taken place between them. Again, the court did not attempt to establish the existence or non-existence of an attomey-client relationship between the pros­ ecutor and the accused. Rather, it focused on the possibility that the accused was denied the impartiality to which he was entitled. Such a division of forces in a law office “would be altogether out of harmony with the age-old ethics of the profession.” Fitzsimmons v. State, 218 N.W. 83, 84 (Neb. 1928). A prosecuting attorney who represented himself over the telephone to the defendant as defense counsel and induced her to impart confidential informa­ tion prejudicial to her defense came “within the spirit if not the letter” of the rule against prosecuting a former client, and was consequently disqualified. The court noted that had the attorney acquired the same information in the role of an actual defense attorney he would have been barred from prosecuting the defendant. Thus, although there was no actual attomey-client relationship, Canon 4 was invoked. State v. Russell, 53 N.W. 441, 444 (Wis. 1892). Simi­ larly, a prosecuting attorney who, before becoming prosecutor, had met with the defendant and quoted a price for representing him should have been disqualified from the case on Canon 4 grounds, even though he never actually represented the defendant. Satterwhite v. State, 359 So. 2d 816, 818 (Ala. Crim. App. 1977). If an attorney has discussed a defendant’s case with him, the attorney is thereby disqualified even if there is no contract of employment or attomey-client relationship. Id. As discussed above, a criminal defendant who established that the prosecut­ ing attorney had represented his codefendant in a prior case was entitled to disqualify the prosecutor if he could show that the prosecutor had obtained the defendant’s confidences as a result of the prior representation. Wilson P. Abraham Constr. Corp. v. Armco Steel Corp., 559 F.2d 250, 253 (5th Cir. 1977). The obligations of Canon 4 have therefore been extended even to one in a collateral position with respect to the attorney and his principal client. In each of these cases, despite the absence of an attomey-client relationship, the attorney was barred from representing an interest that would risk disclosure of information confided in the attorney by a person whom the court found to fall within the ambit of the non-disclosure policy. The rule is perhaps better illustrated by the cases in which the relation between the attorney and the defendant was held to be too attenuated to require automatic disqualification from the subsequent matter. From those decisions a common principle emerges: when the attomey-client relationship is not direct, the attorney will be permitted to prosecute the case only if he could not possibly have gained confidential information regarding it. See, e.g., Gajewski v. United States, 321 F.2d 261, 268 (8th Cir. 1963) (no disqualification from criminal 9 prosecution on account of prior civil representation because misuse of confi­ dential information inconceivable); Dunn v. State, 264 So. 2d 823, 825 (Miss. 1972) (no disqualification on account of prior discussion with defendant re­ garding possible representation, because facts of case never discussed); Autry v. State, 430 S.W.2d 808, 810 (Tenn. Crim. App. 1967) (same; no confidential communication passed between attorney and accused); State v. Henry, 9 So. 2d 215, 217 (La. 1942) (no disqualification on account of discussion with defendant’s relatives; trial court found attorney had “no information of any kind from the defendant or anyone else” regarding case). These opinions appear to recognize that the evil to be avoided by a decision to disqualify is the potential misuse of confidential information, or the appearance thereof. If the court is satisfied that no such information was acquired, disqualification will not be ordered. In light of these elaborations upon the ethical duties of an attorney, we conclude, first, that any communications that took place between A and B and the AUSA would appear to fall within the general policy of Canon 4. “A communication must be regarded as confidential where it possibly is so, although it is not entirely clear that the relations exist.” H. Drinker, Legal Ethics 134 (1980). Information imparted to an attorney by his client’s benefac­ tor for the purpose of assisting in the client’s defense is part of the overall attomey-client channel of communication that Canon 4 is designed to foster. Because “the issue is .. . whether there exist sufficient aspects of an attomeyclient relationship for purposes o f triggering inquiry into the potential con­ flict,” Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748—49 (2d Cir. 1981), we believe that the precise circumstances under which A and B communicated to the AUSA are a critical element of the inquiry. Even if the communications between the AUSA and A and B could not be shielded in a court proceeding by the privilege reserved for only a limited class of attomey-client conversations, if these communications were reposed in an attorney acting in his professional capacity in the defense of a client, then they should be protected. Second, if confidences were conveyed to the AUSA, he could not claim the benefit of the case law in which the courts found that it was impossible for the attorney to have acquired confidential information under the circumstances. Canon 4 analysis is unaffected by the possibility that all the information the AUSA acquired about A and B may already be known independently by other investigative and prosecutive officials. The Model Code itself emphasizes that the ethical obligation of a lawyer to guard confidences and secrets, “unlike the evidentiary privilege, exists without regard to the nature or source of informa­ tion or the fact that others share the knowledge." Model Code EC 4-4 (empha­ sis added). The ethical precept is not nullified even if all confidential informa­ tion to which a lawyer had access is independently known to others from any source. NCK Org. Ltd. v. Bregman, 542 F.2d 128, 133 (2d Cir. 1976). On balance, therefore, we believe the better course is for the AUSA to observe the obligations of Canon 4 with respect to any confidences and secrets of A and B that he acquired in his role as defense attorney. 10 C. Substantial Relation Between Former and Subsequent Matters The third aspect of a disqualification analysis seeks to ascertain whether the matter of former representation is ‘“ substantially related’ to the issues likely to arise during the course of the litigation.” Redd v. Shell Oil Co., 518 F.2d 311, 315 (10th Cir. 1975). In the present case, we must determine whether the representation of XYZ and the involvement of A and B in the obscenity cases are so closely connected with the prospective prosecution of A and B on charges of conspiracy to commit obscenity-related offenses that confidences might be jeopardized. See Richardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1385 (3d Cir. 1972), cert, denied, 411 U.S. 986 (1973). The requisite substanti­ ality is present if the factual contexts of the two matters are similar and if there is reasonable probability that confidences were disclosed which could be used against the client. Trone v. Smith, 621 F.2d 994, 998 (9th Cir. 1980). The courts have employed the “substantial relation” test as a further means to ensure the protection of client confidences. Duncan v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 646 F.2d 1020, 1028 (5th Cir. 1981); American Roller Co. v. Budinger, 513 F.2d 982, 984 (3d Cir. 1975). The overlap of subject matters, issues, and other facts between the two representations must be delin­ eated with specificity to allow for the careful comparison that the rule requires. Duncan, 646 F.2d at 1029. It is clear that the inquiry is meticulously factual; “merely pointing to a superficial resemblance” is insufficient. Id. Applying that principle to the AUSA’s situation, we believe there may well exist a substantial relation between the information acquired in the course of representing XYZ on obscenity charges and a conspiracy prosecution of A and B for obscenity-related activities. However, we do not have sufficient facts about the two prosecutions to draw the fine lines required by the cases. The determination whether there is a substantial relation must be made with a full knowledge of the two matters, and the knowledge we have acquired is limited. Although the prospective prosecutions of A and B are presumably distinct from those of XYZ, it appears that the overall business operation which is the target of investigation involves facts common to the two. The AUSA has stated that the information he reviewed in FBI files regarding A and B “far exceeds” any knowledge he may have acquired from his representation of XYZ, not that it is unrelated or qualitatively different. The sexually explicit materials that clients XYZ were charged with displaying were supplied by A and B, so that facts relating to the publications themselves would likely overlap. In addition, the basic legal obscenity issues are likely to be very similar.9 Moreover, the scope of the proposed investigation as described is evidently quite broad. At least in theory, it is possible that the investigation could eventually lead to involvement of the AUSA’s “conspiracy” objective, and we believe the possibility that clients XYZ could be implicated in such a conspiracy sharpens the substantial relation between the matters. Of course, if XYZ were implicated, everything 9 Even if the prosecutions o f XY Z w ere brought under state law and the proposed conspiracy charges will be based on federal law, there would undoubtedly be a significant sim ilarity o f legal issues. 11 we have discussed regarding the AUSA’s duties to A and B would apply a fortiori to XYZ, with whom he maintained a formal attomey-client relation­ ship. We believe, therefore, that very careful consideration must be given to whether a court would find a substantial relation between the former represen­ tation of XYZ (with assistance from A and B) and the current investigation or prosecution of A and B. We reiterate the general rule: “an attorney cannot be permitted to participate in the prosecution of a criminal case if, by reason of his professional relations with the accused, he has acquired knowledge of facts upon which the prosecu­ tion is predicated or which are closely interwoven therewith.” Although we are not in possession of enough facts to apply these words conclusively to the present situation, we believe that a court would likely find that “by reason of his professional relations,” the AUSA has acquired knowledge of facts “which are closely interwoven” with the prospective prosecution. If such a finding could be made on these facts, no more concrete predicate would be required to indicate the need for disqualification of a criminal prosecutor. II. Other ComsntJeraitioinis A. Appearance o f Impropriety Canon 9 of the Code imposes upon attorneys an obligation to avoid even the appearance of professional impropriety. Model Code DR 9-101; EC 9-6. One commentator has gone so far as to urge that this canon be used to disqualify attorneys even when the connection between former and subsequent represen­ tations is not great enough to satisfy the substantial relation test of Canon 4. See Note, Ethical Considerations When an Attorney Opposes a Former Client: The Need fo r a Realistic Application o f Canon Nine, 52 Chi.-Kent L. Rev. 525, 535-37 (1975). In Rodriguez v. State, 628 P.2d 950, 957 (Ariz. 1981), the Arizona Supreme Court took this approach and held that a public defender did not violate the Disciplinary Rule when he failed to withdraw from representation of a defen­ dant whose defense could have implicated a former client of the office. Canon 9 required disqualification of the attorney, however, because there was an unavoidable appearance that confidential information gained from the former client could be used to his disadvantage. Some courts have declined to adopt this “blanket approach” to Canon 9. See, e.g., Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751, 757 (2d Cir. 1975) (Canon 9 “not intended completely to override the delicate balance created by Canon 4”); Board ofEduc. v. Nyquist, 590 F.2d 1241, 1247 (2d Cir. 1979) (“[W]hen there is no claim that the trial will be tainted, appearance of impropriety is simply too slender a reed on which to rest a disqualification order except in the rarest cases.”). More often, courts will decide a disqualification issue on the basis of Canons 4 and 9 in combination, and Canon 9 generally serves to resolve any doubts in favor of disqualification. See Model Code EC 9-2. 12 B. Possible Effects o f Failure to Disqualify The possible adverse consequences of participation in this matter are varied. First, the AUSA could be found to have violated the Disciplinary Rule prohib­ iting disclosure of client confidences. In our opinion, however, his involvement would not fall strictly within the letter of the Disciplinary Rules so as to warrant a finding of violation. The ambiguity of A and B’s “client” status, while not automatically obviating the necessity for disqualification, would lessen the likelihood that a court would impose disciplinary sanctions in this unique situation without some showing of intentional wrongdoing. Cf. In re Rujfalo, 390 U.S. 544, 550 (1968) (lawyer facing penalty of disbarment is entitled to due process protections). To justify discipline against an attorney, a court must be satisfied by clear and convincing evidence that the attorney has violated one or more of the Disciplinary Rules. In re Mercer, 652 P.2d 130, 133 (Ariz. 1982). Because transgression of a prophylactic rule does not necessarily connote any actual wrongdoing, and because there is no clear requirement of withdrawal under these circumstances in the Disciplinary Rules themselves, we believe a court would not find intentional misconduct sufficient to justify professional censure. Professional discipline is not the only possible consequence of an erroneous decision to participate in the case, however. Even if conduct were insufficient to support an ethical violation, it could still require the attorney’s disqualifica­ tion from a particular matter. The vast majority of criminal cases in which disqualification was required have not resulted in disciplinary action against the attorney. Rather, courts have granted reversals of convictions on the ground that the defendant was denied a fair trial. See, e.g.. State v. Leigh, 289 P.2d 774, 111 (Kan. 1955) (reversal although no claim of intentional misconduct by the attorney); People v. Rhymer, 336 N.E.2d 203, 205 (111. Ct. App. 1975) (same). A federal court dismissed an indictment because the prosecutor who presented the case to the grand jury had had impermissible professional dealings with the accused. United States v. Catalanotto, 468 F. Supp. 503, 507 (D. Ariz. 1978). Although there is a paucity of federal cases involving the issue of disqualifica­ tion of a prosecuting attorney on these grounds, in analogous state cases the prosecutor’s relation to the accused has been the basis for post-conviction relief, see Young v. State, 111 So. 2d 345, 348 (Fla. Dist. Ct. App. 1965), a new trial, see State v. Halstead, 35 N.W. 457, 459 (Iowa 1887), recusal orders, see Love v. Superior Court, 168 Cal. Rptr. 577,581 (Ct. App. 1980) (recusal order for discrete six-person section of district attorney’s office “tainted” by former representation), and mistrials, see Burkett v. State, 206 S.E.2d 848, 851 (Ga. 1974) (reversible error for trial court merely to disqualify prosecutor without granting mistrial). In sum, the prosecuting attorney who approaches the ethical standards too lightly risks not only professional censure but also the loss or postponement of a conviction. C. Vicarious Disqualification Under the Model Code, “if a lawyer is required to decline employment or withdraw from employment under a Disciplinary Rule, no partner, or associ­ 13 ate, or any other lawyer affiliated with him or his firm, may accept or continue such employment.” Model Code DR 5-105(D) (emphasis added).10This impo­ sition of a disability upon the entire “firm” — a term not defined in the Model Code11 — is referred to as “vicarious disqualification” or “imputed knowl­ edge.” Its rationale is, once again, the possibility that confidential information possessed by an attorney will filter out to others who could use it to the disadvantage of a client. Authorities disagree regarding whether the imputation of knowledge from one member of a firm to the others should be extended to non-profit organiza­ tions such as legal services agencies and prosecutors’ offices. The imposition of vicarious disqualification is premised, in part, upon the community of economic interests among members of a firm who share profits, and those interests are not present in public offices. American Bar Foundation, Annotated Code o f Professional Responsibility 249 (1979) (Comment on DR 5-105(D)); ABA Formal Op. 342 (Nov. 24, 1975), reprinted in 62 A.B.A. J. 517 (1976). Recognizing these differences, many courts have declined to apply the vicarious disqualification rule devised for civil firms to nonprofit legal organi­ zations, including prosecutors’ offices. They reason that the premise of the rule, the free flow of information within a law partnership, is not presumptively applicable outside the partnership context. See, e.g., United States v. Standard Oil Co., 136 F. Supp. 345, 360 (S.D.N.Y. 1955); In re Charles Willie L., 132 Cal. Rptr. 840, 843 (Ct. App. 1976). Other courts recognize that “particular caution is in order before an entire prosecutorial office, as distinguished from a particular prosecutor in that office, is recused.” Chadwick v. Superior Court, 164 Cal. Rptr. 864, 867 (Ct. App. 1980). The United States District Court for the District of Arizona disqualified a member of the United States Attorney’s office who had represented the defendant in a substantially related matter to avoid the appearance of impropriety, and took the further step of disqualifying the Tucson office of the United States Attorney. It denied, however, the motion to disqualify the entire district office, expressing the view that the prosecution could properly be conducted by the larger Phoenix office, on the rationale that the size and complexity of substantial governmental agencies makes imputa­ tion of knowledge impossible. United States v. Catalanotto, 468 F. Supp. 503, 506 (D. Ariz. 1978). On the whole, the weight of national authority appears to reject recusal of an entire prosecutorial office. See Chadwick, 164 Cal. Rptr. at 871 (canvassing jurisdictions). Federal courts are particularly reluctant to order disqualification 10 A s adopted by A rizona, however, DR 5 - 1 05(D ) has a different scope. It appears to require vicarious d isq u alificatio n only w hen an attorney has b een recused because o f a conflict o f interest (Canon S) rather than the risk o f disclosing clien t confidences (C anon 4). 17A Ariz. Rev. Stat. Ann., S. Ct. Rule 29(a), DR 5 105(D) (1983 Supp.)- T here is as yet no case law explaining the difference in application between the Model C ode and the A rizona am endm ent. 11 T h e M odel R ules o f Professional C onduct define “firm " as including “ lawyers in a private firm , and law yers em ployed in the legal department o f a corporation o r other organization, or in a legal services organ izatio n .” Rule 1.10 com m ent, 52 U.S.L.W . 9 (Aug. 16, 1983). 14 of an entire United States Attorney’s office. For example, a district court granted a motion to disqualify an entire United States Attorney’s office on th£ ground that one of several defendants had been represented by one of the current Assistant United States Attorneys. The Sixth Circuit reversed, holding that the vicarious disqualification rule of DR 5-105(D) is “inapplicable to other government lawyers associated with a particular government lawyer who is himself disqualified by reason of DR 4-101 . . . or similar disciplinary rules.” United States v. Caggiano, 660 F.2d 184, 191 (6th Cir. 1981) (quoting ABA Formal Op. 342), cert, denied, 455 U.S. 945 (1982). As explained by thenDistrict Judge Kaufman in United States v. Standard Oil Co., 136 F. Supp. 345, 363 n.34 (S.D.N.Y. 1955): [T]he hands of government cannot be tied because of the former associations of one of its officials; therefore, that top person disqualifies himself from handling that particular matter, and the conflict of interest question is considered resolved. Simi­ larly, the particular lower ranking attorney disqualifies himself and another attorney handles the matter. No such opportunity is given to one partner in a law firm to disqualify himself and qualify the firm. The only explanation for the difference in result is that the practical exigencies are more compelling in the former situation than the latter. This is another illustration of the fact that ethical problems cannot be viewed in a vacuum; practi­ cal, everyday facts of life must be considered. The Department would vigorously oppose any attempt to disqualify an entire United States Attorney’s office on the basis of a past professional affiliation of one of its assistants because of the extreme interference such a recusal order would cause with the Department’s ability to carry out its prosecutorial func­ tions. This position finds support in the ABA’s new Model Rules of Profes­ sional Conduct. Those rules specifically prohibit a lawyer who is a public officer from participating “in a matter in which the lawyer participated person­ ally and substantially while in private practice or nongovernmental employ­ ment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer’s stead in the matter.” Rule 1.11(c)(1), 52 U.S.L.W. 11 (Aug. 16, 1983). The comment states clearly that the paragraph “does not disqualify other lawyers in the agency with which the lawyer in question has become associated.” Id. Although we would take the position that a court should not disqualify the entire office, we would urge the AUSA to observe the restrictions upon communicating with others that underlie the vicarious disqualification rule. We have been told that the AUSA has reviewed FBI files regarding A and B. We have no facts to indicate that he may have discussed confidential informa­ tion with other members of the staff, but we underscore the importance of not assisting in the case once a decision to disqualify has been made. 15 IH. Application off Camera 4 to Federal Officials Several sources of authority could be viewed as imposing on the AUSA or other Department of Justice attorneys the obligations of Canon 4 discussed above. As members of the bar o f a state or the District of Columbia,12 Depart­ ment lawyers may be subject to the ethical standards of the state bars, including Canon 4. Both Arizona and Illinois have adopted the Model Code. See supra note 1 and accompanying text. In addition, as representatives of the United States in litigation, Department lawyers may be subject to Canon 4 or a similar rule as adopted by the federal district courts as local rules. The local rules of the United States District Court for the District of Arizona, for example, provide that “the Code of Professional Responsibility, as set forth in Rule 29(a) of the Rules of the Supreme Court o f the State of Arizona, shall apply to court proceedings in the United States District Court for the District of Arizona.” D. Ariz. R. 7(d) (1982). Finally, the Department’s Standards of Conduct exhort Department attorneys to use the Model Code as a source of “guidance” for their conduct. 28 C.F.R. § 45.735-1. Although we have never read this provision in the Standards of Conduct to impose upon the Department’s lawyers obligations that are not fully consistent with the performance of their official responsibili­ ties, we must anticipate that the organized bar or the federal courts or both may attempt to impose the restrictions of Canon 4 even in situations where we would not. The imposition of conduct regulations by a state court or bar association upon federal lawyers acting in the scope of their federal authority must be assessed in light of the Supremacy Clause of the Constitution. See supra note 2. The activities of the Federal government are presumptively free from state regulation, unless Congress has clearly authorized state regulation in a specific area. See Hancock v. Train, 426 U.S. 167 (1976). In the area of professional conduct, Congress has directed that Justice Department attorneys must be licensed and authorized to practice under the laws of a State, territory, or the District of Columbia. See supra note 12. In prior interpretations of that require­ ment, this Department has been willing to assume that Congress “intended that the attorneys would be subject to reasonable conditions of continued bar membership where those conditions are not inconsistent with the requirements or exigencies of federal employment,” and that Congress could reasonably have intended federal employees to be subject to “reasonable and established ethical rules for the bar generally.” See Memorandum of the Department of Justice, Re: “In the Matter of the Petition of the Board of Governors of the District of Columbia Bar,” at 5 (Sept. 11, 1979). Nonetheless, bar rules that are inconsistent with the requirements or exigencies of federal service may also offend the Supremacy Clause. 12 D epartm ent o f Justice authorization and appropriations statutes routinely provide that the D epartm ent's funds may not be used to pay the com pensation o f any person em ployed as an attorney unless that person is duly licen sed and authorized to practice as an attorney under the law s of a state, territory, or the D istrict of C olum bia. See, e.g.. Pub. L. No. 96-132, § 3 (a), 93 Stat. 1040, 1044 (1979); Pub. L. No. 95-624, § 3(a), 92 Stat. 3459, 3462 (1978); Pub. L. No. 95-86, § 202, 91 Stat. 419, 428 (1977); see also Pub L. No. 9 8 ^ 1 1 , § 2 03(a), 98 Stat. 1545, 1558-59 (1984) (continuing the requirem ent of § 3(a) o f Pub. L. No. 96-132). 16 Whether the limitations of Canon 4, as imposed by a state bar, are a significant enough intrusion into the authorized functions of this Department to offend the Supremacy Clause would depend on the circumstances of the AUSA’s case. On the one hand, there is the arguable congressional authoriza­ tion for at least some state professional regulation of Department lawyers as evinced by the language in the Department’s authorization statutes. In addition, the attorney’s obligation to preserve client confidences traces its roots far beyond the Model Code of Professional Responsibility, and may have implica­ tions for the due process rights of the criminal defendant. Further, the Department’s own regulations permit an employee’s supervisor to relieve an employee from participation in a criminal investigation or prosecution if he determines that a personal relationship exists between the employee and a person or organization that is substantially involved or has specific and sub­ stantial interest in the matter. 28 C.F.R. § 45.735-4. The Department’s own practice, therefore, supports observance of the ethical guidelines in this instance. On the other hand, the Department has a strong interest in pursuing its prosecutions free from interference from any other governmental entity, state or federal. The strength of this interest would depend upon the need for the AUSA’s services in this particular operation. That he was hired as a Special Assistant United States Attorney for the purpose of prosecuting alien cases would suggest that his services in the obscenity prosecution are not indispens­ able. This is a determination that must be made by officials more familiar than we are with the circumstances of this particular investigation. On balance, we believe that generally the extension of the Canon 4 obliga­ tions to individuals who were not “clients” in the strict sense of the word would not be in the Department’s interest. We believe in this case, however, that very careful thought should be given to the broad application that courts have given to the Canon 4 principles and a determination made regarding the relevance of those interpretations to the AUSA’s situation. We believe the broad construc­ tion of Canon 4 is not binding on the Department, assuming some overriding interest on the other side, but that as a prudential matter, the better course may be to protect the integrity of the prosecution by removing the AUSA from the case. Although we can appreciate the AUSA’s interest in participating in the case, we think that under these facts it would be reasonable, if perhaps incor­ rect, for the public or the defendants to question the AUSA’s capacity for independent judgment or his ability to preserve the confidences he may have obtained as a defense attorney. As we have emphasized, however, this decision should be made by Department officials who are in possession of more detailed facts than we have been given and who are in a position to judge the AUSA’s importance to the investigation and prosecution of these obscenity cases. Conclusion The many considerations, discussed above, that bear upon a disqualification under these circumstances have led us to conclude that the AUSA probably 17 should not participate either in counseling agents involved in the investigation of A and B or in the prosecution of A and B. The relationship between the AUSA and A and B may not be close enough to establish that his participation in the case would violate the Disciplinary Rule prohibiting the disclosure of client confidences. However, it may nevertheless be sufficient to deprive A and B of a fair trial or to create an appearance of impropriety. We cannot conclude that, as a matter of law, the AUSA’s participation in the case could not provide a ground for a disqualification order or an eventual attack upon any convictions obtained. As a prudential matter, we therefore recommend that he disqualify himself from the case. R obert B. Shanks Deputy Assistant Attorney General Office o f Legal Counsel 18

Write a legal research memo on the following topic.

Placing of United States Armed Forces Under United Nations Operational or Tactical Control Proposed funding restriction generally prohibiting the President from placing United States Armed Forces under the operational or tactical control o f the United Nations in U.N. peacekeeping oper­ ations would unconstitutionally constrain the President’s exercise of his authority as Commanderin-Chief and unconstitutionally undermine the President’s constitutional authority with respect to the conduct o f diplomacy. Granting the President the authority to waive the prohibition if he provides a certification and report to Congress would not remove the funding restriction’s constitutional defect, because Congress cannot burden or infringe the President’s exercise o f a core constitutional power by attaching condi­ tions precedent to the exercise of that power. May 8, 1996 M e m o r a n d u m O p in io n fo r t h e L e g a l A d v is e r S p e c ia l A s s is t a n t t o the to the P r e s id e n t and N a t io n a l S e c u r it y C o u n c il This memorandum responds to your request for our views as to the constitu­ tionality of H.R. 3308, 104th Cong. (1996), a bill that would limit the President’s ability to place United States armed forces under the United Nations’ (“ U.N.” ) operational or tactical control. Section 3 of H.R. 3308 would add a new section 405 to chapter 20 of title 10, United States Code, to read as follows: Except as provided in subsections (b) and (c), funds appropriated or otherwise made available for the Department of Defense may not be obligated or expended for activities of any element of the armed forces that after the date of the enactment of this section is placed under United Nations operational or tactical control, as defined in subsection (0Proposed subsection 405(f) provides that elements of the armed forces shall be considered to be placed under U.N. operational or tactical control if they are under the operational or tactical control of an individual who is acting on behalf of the U.N. in a peacekeeping, peacemaking or similar activity, and if the senior military commander of the U.N. force or operation is either a foreign national or a U.S. citizen other than an active duty U.S. military officer. Proposed section 405 thus bars the President from placing U.S. armed forces participating in U.N. peacekeeping operations under the U.N. operational or tac­ tical control, as so defined. 182 Placing o f United States Armed Forces Under United Nations Operational or Tactical Control Two subsections set out exceptions to the prohibition.1 Subsection 405(c) pro­ vides that the limitation does not apply if Congress specifically authorizes a par­ ticular placement of U.S. forces under U.N. operational or tactical control, or if the U.S. forces involved in a placement are participating in operations conducted by the North Atlantic Treaty Organization. Subsections 405(b) and (d) together provide that the President may waive the limitation if he certifies to Congress fifteen days in advance of the placement that it is “ in the national security interests of the United States to place any ele­ ment of the armed forces under United Nations operational or tactical control,” and provides a detailed report setting forth specific items of information within eleven distinct categories.2 If the President certifies that an “ emergency” pre­ cluded compliance with the fifteen day limitation, he must make the required cer­ tification and report in a timely manner, but no later than forty-eight hours after a covered operational or tactical control is initiated. The proposed amendment unconstitutionally constrains the President’s exercise of his constitutional authority as Commander-in-Chief. Further, it undermines his constitutional role as the United States’ representative in foreign relations. While “ [t]he constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping,” United States v. O ’Brien, 391 U.S. 367, 377 (1968), Congress may not deploy that power so as to exercise functions constitutionally committed to the Executive alone, for that would “ pose a ‘danger of congressional usurpation of Executive Branch func­ tions.’ ” Morrison v. Olson, 487 U.S. 654, 694 (1988) (quoting Bowsher v. Synar, 478 U.S. 714, 727 (1986)). Nor may Congress legislate in a manner that “ ‘impermissibly undermine[s]’ the powers of the Executive Branch, [Commodity Futures Trading Com m ’n v.] Schor, [478 U.S. 833 (1986)] at 856, or ‘disrupts the proper balance between the coordinate branches [by] preventing] the Execu­ tive Branch from accomplishing its constitutionally assigned functions,’ Nixon v. Administrator o f General Services, [433 U.S. 425 (1977)] at 433.” M orrison, 487 1There is also an exception made for ongoing operations in Macedonia and Croatia. 2 As detailed in subsection 405(d), the report must include eleven distinct elements. It must set forth: (1) a descrip­ tion o f the national security interests that would be served by the troop placement; (2) the mission of the U.S. forces involved; (3) the expected size and composition o f the U S. forces involved; (4) the precise command and control relationship between the U.S. forces involved and the U.N. command structure; (5) the precise command and control relationship between the U.S. forces involved and the commander o f the U.S. unified command for the region in which those U.S. forces are to operate; (6) the extent to which the U.S. forces involved will rely on other nations* forces for security and defense and an assessment o f the capability of those foreign forces to provide adequate security to the U.S. forces involved; (7) the exit strategy for complete withdrawal of the U.S. forces involved; (8) the extent to which the commander o f any unit proposed for the placement would at all times retain the rights to report independently to superior U.S. military authorities and to decline to comply with orders judged by that commander to be illegal o r beyond the mission's mandate until such time as that commander has received direction from superior U.S. military authorities; (9) the extent to which the United States retains the author­ ity to withdraw any element o f the armed forces from the proposed operation at any time and to take any action it considers necessary to protect those forces if they are engaged; (10) the extent to which the U.S. forces involved will be required to wear as part o f their uniform a device indicating U.N. affiliation; and (11) the anticipated m onthly incremental cost to the United States o f participation in the U.N. operation by U.S. forces proposed to be placed under U.N. operational or tactical control. 183 Opinions o f the Office o f Legal Counsel in Volume 20 U.S. at 695. Even though there are areas in which both Congress and the President have a constitutional voice, and in which Congress, therefore, may rely on its own constitutional authority to seek to guide and constrain presidential choices, it may not impose constraints in the areas that the Constitution commits exclu­ sively to the President. See, e.g., Letter for Richard Darman, Director, Office of Management and Budget, from Bruce Navarro, Deputy Assistant Attorney Gen­ eral, Office of Legislative Affairs (Feb. 2, 1990) (finding provision of Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, Pub. L. No. 101-246, 104 Stat. 15 (1990), limiting President’s ability to receive spies as ambassadors, unconstitutional even though President could waive limitation if it was in the na­ tional security interests of the United States to do so). Article II, Section 2, of the Constitution declares that the President “ shall be Commander in Chief of the Army and Navy of the United States.” Whatever the scope of this authority in other contexts, there can be no room to doubt that the Commander-in-Chief Clause commits to the President alone the power to se­ lect the particular personnel who are to exercise tactical and operational control over U.S. forces. See Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850) (“ As commander-in-chief, [the President] is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual . . . .” ). Indeed, the major object of the Clause is to “ vest in the President the supreme command over all the military forces, — such supreme and undivided command as would be necessary to the prosecution of a successful war.” United States v. Sweeny, 157 U.S. 281, 284, (1895); see also Nordmann v. W oodring, 28 F. Supp. 573, 578 (W.D. Okla. 1939) (“ [A]s Commander in Chief, the President has the power to employ the Army and the Navy in a manner which he may deem most effectual.” ); The Fed­ eralist No. 69, at 465 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (“ [The Commander in Chief power] would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Ad­ miral of the confederacy . . . .” ); William Howard Taft, The Boundaries Between the Executive, the Legislative a n d the Judicial Branches o f the Government, 25 Yale L.J. 599, 610 (1916) (the Commander-in-Chief Clause precludes Congress from “ ordering] battles to be fought on a certain plan” or “ direct[ing] parts of the army to be moved from one part of the country to another” ); George Suth­ erland, Constitutional Power a n d W orld Affairs 76-77 (1919) (“ In the actual con­ duct of military operations, in the field where the battles are being fought, in the movement, disposition and discipline of the land and naval forces, the Com­ mander-in-Chief is supreme.” ). As Attorney General (later Justice) Robert Jackson explained, the President’s responsibility as Commander in Chief embraces the authority to command and direct the armed forces in their imme184 Placing o f United States Armed Forces Under United Nations Operational or Tactical Control diate movements and operations designed to protect the security and effectuate the defense of the United States. . . . [T]his author­ ity undoubtedly includes the power to dispose of troops and equip­ ment in such manner and on such duties as best to promote the safety of the country. Training o f British Flying Students in the United States, 40 Op. Att’y Gen. 58, 61-62(1941). It is for the President alone, as Commander-in-Chief, to make the choice of the particular personnel who are to exercise operational and tactical command functions over the U.S. Armed Forces. True, Congress has the power to lay down general rules creating and regulating “ the framework of the Military Establish­ ment,” Chappell v. Wallace, 462 U.S. 296, 301 (1983), but such framework rules may not unduly constrain or inhibit the President’s authority to make and to imple­ ment the decisions that he deems necessary or advisable for the successful conduct of military missions in the field, including the choice of particular persons to perform specific command functions in those missions. Thus, for example, the President’s constitutional power to appoint a particular officer to the temporary grade of Marine Corps brigadier general could not be undercut by the failure of a selection board, operating under a general statute prescribing procedures for pro­ motion in the armed services, to recommend the officer for that promotion. See Promotion o f Marine Officer, 41 Op. Att’y Gen. 291 (1956). As Acting Attorney General Rankin advised President Eisenhower on that occasion, “ [w]hile Congress may point out the general class of individuals from which an appointment may be made and may impose other reasonable restrictions it is my opinion that the instant statute goes beyond the type of restriction which may validly be im­ posed. . . . It is recognized that exceptional cases may arise in which it is essen­ tial to depart from the statutory procedures and to rely on constitutional authority to appoint key military personnel to positions of high responsibility.” Id. at 293, 294 (citations omitted).3 In the present context, the President may determine that the purposes of a particular U.N. operation in which U.S. Armed Forces participate would be best served if those forces were placed under the operational or tactical control of an agent of the U.N., as well as under a U.N. senior military commander who was a foreign national (or a U.S. national who is not an active duty military officer). Congress may not prevent the President from acting on such a military 3 The Acting Attorney General’s opinion relied chiefly on Congress’s inability to undermine the President’s author­ ity under the Appointments Clause, U.S. Const, art. II, § 2 , rather than on the promotion procedure’s effect on the Commander-in-Chief power. The President’s appointment power is not at issue here, because the foreign or other nationals performing command functions at the President’s request would be discharging specific military func­ tions, but would not be serving in federal offices. See Memorandum for Andrew Fois, Assistant Attorney General, Office o f Legislative Affairs, from Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Defense Authorization Act at 2 n .l (Sept. 15, 1995). Nonetheless, we believe that the reasoning under the Commander-in-Chief Clause closely parallels that under the Appointments Clause. 185 Opinions o f the Office o f Legal Counsel in Volume 20 judgment concerning the choice of the commanders under whom the U.S. forces engaged in the mission are to serve. Moreover, in seeking to impair the President’s ability to deploy U.S. Armed Forces under U.N. operational and tactical command in U.N. operations in which the United States may otherwise lawfully participate, Congress is impermissibly undermining the President’s constitutional authority with respect to the conduct of diplomacy. See, e.g., Department o f N avy v. Egan, 484 U.S. 518, 529 (1988) (the Supreme Court has “ recognized ‘the generally accepted view that foreign policy was the province and responsibility of the Executive’ ” ) (quoting Haig v. A gee, 453 U.S. 280, 293-94 (1981)); A lfred Dunhill o f London, Inc. v. Republic o f Cuba, 425 U.S. 682, 705-06 n.18 (1976) (“ [T]he conduct of [foreign policy] is committed primarily to the Executive Branch.” ); 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” ); Acquisition o f N aval and A ir B ases in Exchange fo r O ver-Age D estroyers, 39 Op. Att’y Gen. 484, 486 (1940) (Jackson, Att’y Gen.) (the Constitution “ vests in the President as a part of the Executive function” “ control of foreign relations” ). United Nations peace­ keeping missions involve multilateral arrangements that require delicate and com­ plex accommodations of a variety of interests and concerns, including those of the nations that provide troops or resources, and those of the nation or nations in which the operation takes place. The success of the mission may depend, to a considerable extent, on the nationality of the commanding officers, or on the degree to which the operation is perceived as a U.N. activity (rather than that of a single nation or bloc of nations). Given that the United States may lawfully participate in such U.N. operations, we believe that Congress would be acting unconstitutionally if it were to tie the President’s hands in negotiating agreements with respect to command structures for those operations.4 It might be argued that section 405 does not impose a significant constraint on the President’s constitutional authority because it grants the President the au­ thority to waive the prohibition whenever he deems it in the “ national security interest’’ of the United States to do so, provided he reports his decision to execute a waiver to Congress fifteen days in advance. If he certifies that an emergency is present, he may avoid the fifteen day limitation and make a report in a timely manner, but no later than forty-eight hours after troops are placed under U.N. command. Thus, functionally, section 405 effects only a conditional ban on the 4 Past Presidents have committed U.S. forces to foreign command. For example, at a time of great military and diplom atic exigency during the First W orld War, President W oodrow W ilson agreed, after discussions with our allies, to place U.S. forces under General Foch, a French commander. General Pershing called on General Foch at his headquarters to say, *‘[i]nfantry, artillery, aviation, all that we have are yours; use them as you w ish." 8 Ray Stannard Baker, Woodrow Wilson: Life and Letters 60 (1939); see also id. at 62 (President W ilson’s telegram to G eneral Foch, staling that “ [s]uch unity of command is a most hopeful augury of ultimate success"); id. at 6 9 -7 0 (resolution o f Suprem e W ar Council, statuig that General Foch “ is charged by the British, French and Amer­ ican G overnm ents with the coordination o f the action o f the Allied Armies on the W estern Front; to this end there is conferred on him all the powers necessary for its effective realization"). 186 Placing o f United States A rm ed Forces Under United Nations Operational or Tactical Control President’s constitutional authority to control the tactical and operational deploy­ ment of U.S. forces.5 Congress cannot, however, burden or infringe the Presi­ dent’s exercise of a core constitutional power by attaching conditions precedent to the exercise of that power. Attorney General Brownell put the matter well: It is recognized that the Congress may grant or withhold appropria­ tions as it chooses, and when making an appropriation may direct the purposes to which the appropriation shall be devoted. It may also impose conditions with respect to the use of the appropriation, provided always that the conditions do not require operation of the Government in a way forbidden by the Constitution. If the practice of attaching invalid conditions to legislative enactments were per­ missible, it is evident that the constitutional system of the separa­ bility of the branches of Government would be placed in the gravest jeopardy. Authority o f Congressional Committees to D isapprove Action o f Executive Branch, 41 Op. Att’y Gen. 230, 233 (1955). Similarly, then-Assistant Attorney General Rehnquist opined: Even in the area of domestic affairs, where the relationship between Congress and the President is balanced differently than it is in the field of external affairs, virtually every President since Woodrow Wilson had had occasion to object to certain conditions in author­ ization legislation as being violative of the separation of powers between the Executive and the legislative branch. The problem would be met in exacerbated form should Congress attempt by de­ tailed instructions as to the use of American forces already in the field to supersede the President as Commander-in-Chief of the armed forces. William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, The President and the W ar Power: South Vietnam and the Cambodian Sanctuaries 21 (May 22, 1970).6 We are mindful that Congress has framed its restriction on placing troops under U.N. control as a prohibition on the obligation or expenditure of appropriated funds. That Congress has chosen to invade the President’s authority indirectly, 5 Arguably, section 403 effects a complete ban on the use o f appropriated funds to support troops under U.N. control in circumstances when the President would find such a deployment advisable but not strictly in the national security interest o f the United States. We doubt, however, that such a circumstance is more than hypothetically possible. If the President found it advisable to place U.S. forces under U.N. control, then, ipso facto, it would be in the national security interest to place those troops under U.N. control. To the extent that a contrary circumstance could truly arise, then section 405 is unconstitutional. 4 In a footnote to the text quoted above, Mr. Rehnquist added- “ All o f these Presidents have stated in one way or another that just because Congress concededly may refrain from appropriating money at all, it does not necessarily follow that it may attach w hatever condition it desires to an appropriation which it does m ake.” Id. at 21 n.3. 187 Opinions o f the Office o f Legal Counsel in Volume 20 through a condition on an appropriation, rather than through a direct mandate, is immaterial. Broad as Congress’s spending power undoubtedly is, it is clear that Congress may not deploy it to accomplish unconstitutional ends.7 In particular, as our Office has insisted over the course of several Administrations, “ Congress may not use its power over appropriation of public funds ‘ “ to attach conditions to Executive Branch appropriations requiring the President to relinquish his con­ stitutional discretion in foreign affairs.” ’ ” Issues Raised by Provisions Directing Issuance o f Official or D iplom atic Passports, 16 Op. O.L.C. 18, 28 (1992) (quoting Issues R aised by Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 42 n.3 (1990) (quoting Constitutionality o f Proposed Statutory Provision Re­ quiring P rior Congressional N otification fo r Certain C .IA . Covert Actions, 13 Op. O.L.C. 258, 261 (1989))).8 WALTER DELLINGER Assistant Attorney General Office o f Legal Counsel 7 See United States v. Lovett, 328 U.S. 303, 316 (1946) (appropriations power misused to impose bill of attainder); United States v. Klein, 80 U.S. (13 Wall.) 128 (1872) (appropriations act unconstitutionally intruded on President’s pardon power); cf. Metropolitan Washington Airports Auth. v. Citizens for the Abatement o f Aircraft Noise, Inc., 501 U.S. 252, 271 (1991) (Congress may not use its power over Federal property to achieve ends by indirect means that it is forbidden to achieve directly); Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 594 (1926) (State legislature cannot attach unconstitutional condition to privilege that it may deny); see also Mutual Security Program — Cutoff o f Funds from Office o f Inspector General and Comptroller, 41 Op. A tt’y Gen. 507, 530 (1960) (A tt’y Gen. Rogers) ( “ [T]he Constitution d o es not permit any indirect encroachment by Congress upon [the] authority o f the President through resort to conditions attached to appropriations.” ); Constitutionality o f Proposed Legislation Affecting Tax Refunds, 37 Op. A tt’y Gen. 5 6 , 61 (1933) (A tt'y Gen. Mitchell) ( “ This proviso can not be sustained on the theory that it is a proper condition attached to an appropriation. Congress holds the purse strings, and it may grant o r withhold appropriations as it chooses, and when making an appropriation may direct the purposes to which the appropriation shall be devoted and impose conditions in respect to its use, provided always that the conditions do not require operation of the Government in a way forbidden by the Constitution.” ), Memorial o f Captain Meigs, 9 Op. A tt’y Gen. 462, 4 6 9 -7 0 (1860) (concluding that appropriations bill that contained condition that money be spent only under supervision o f congressionally-designated individual was invalid); W illiam P. Ban, The Appropriations Power and the Necessary and Proper Clause, 68 Wash. U. L.Q. 623, 628 (1990) ( “ Congress cannot use the appropriations power to control a Presidential power that is beyond its direct control.” ); Harold H. Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons o f the Iran-Contra Affair, 97 Yale L.J. 1255, 1303 n.218 (1988) (citing support fo r view that Congress acts unconstitutionally if it refuses to appropriate funds for President to carry out his enumerated constitutional responsibilities); Kate Stith, Congress' Power o f the Purse , 97 Yale L.J. 1343, 1351 (1988); Louis Henkin* Foreign Affairs and the Constitution 115 (1972) ( “ Congress cannot impose conditions which invade Presidential prerogatives to which the spending is at most incidental."). 8 See also The President’s Compliance with the “Timely Notification" Requirement o f Section 501(b) o f the Na­ tional Security Act, 10 Op. O.L.C. 159, 1 6 9 -7 0 (1986) ( “ [W]hile Congress unquestionably possesses the power to make decisions as to the appropriation o f public funds, it may not attach conditions to Executive Branch appropria­ tions that require the President to relinquish an y o f his constitutional discretion in foreign affairs.” ). This limitation on legislative power has also been acknowledged by Members o f Congress. See Oirin Hatch, What the Constitution Means by Executive Power, 43 U. Miami L. Rev. 197, 200-01 (1988) ( “ [C onstitutional foreign policy functions may not be eliminated by a congressional refusal to appropriate funds. The Congress may not, for exam ple, deny the President funding to receive ambassadors, negotiate treaties, or deliver foreign policy addresses . . . . Congress oversteps its role when it undertakes to dictate the specific terms of international rela­ tions.” ); Eli E. Nobleman, Financial Aspects o f Congressional Participation in Foreign Relations, 289 Annals Am. A cad. Pol. & Soc. Sci. 145, 150 (1953) (citing remarks o f Representative Daniel Webster, objecting on constitutional grounds in 1826 to appropriations rider that puiported to attach instructions to United States diplomats). 188

Write a legal research memo on the following topic.

Placing of United States Armed Forces Under United Nations Operational or Tactical Control Proposed funding restriction generally prohibiting the President from placing United States Armed Forces under the operational or tactical control o f the United Nations in U.N. peacekeeping oper­ ations would unconstitutionally constrain the President’s exercise of his authority as Commanderin-Chief and unconstitutionally undermine the President’s constitutional authority with respect to the conduct o f diplomacy. Granting the President the authority to waive the prohibition if he provides a certification and report to Congress would not remove the funding restriction’s constitutional defect, because Congress cannot burden or infringe the President’s exercise o f a core constitutional power by attaching condi­ tions precedent to the exercise of that power. May 8, 1996 M e m o r a n d u m O p in io n fo r t h e L e g a l A d v is e r S p e c ia l A s s is t a n t t o the to the P r e s id e n t and N a t io n a l S e c u r it y C o u n c il This memorandum responds to your request for our views as to the constitu­ tionality of H.R. 3308, 104th Cong. (1996), a bill that would limit the President’s ability to place United States armed forces under the United Nations’ (“ U.N.” ) operational or tactical control. Section 3 of H.R. 3308 would add a new section 405 to chapter 20 of title 10, United States Code, to read as follows: Except as provided in subsections (b) and (c), funds appropriated or otherwise made available for the Department of Defense may not be obligated or expended for activities of any element of the armed forces that after the date of the enactment of this section is placed under United Nations operational or tactical control, as defined in subsection (0Proposed subsection 405(f) provides that elements of the armed forces shall be considered to be placed under U.N. operational or tactical control if they are under the operational or tactical control of an individual who is acting on behalf of the U.N. in a peacekeeping, peacemaking or similar activity, and if the senior military commander of the U.N. force or operation is either a foreign national or a U.S. citizen other than an active duty U.S. military officer. Proposed section 405 thus bars the President from placing U.S. armed forces participating in U.N. peacekeeping operations under the U.N. operational or tac­ tical control, as so defined. 182 Placing o f United States Armed Forces Under United Nations Operational or Tactical Control Two subsections set out exceptions to the prohibition.1 Subsection 405(c) pro­ vides that the limitation does not apply if Congress specifically authorizes a par­ ticular placement of U.S. forces under U.N. operational or tactical control, or if the U.S. forces involved in a placement are participating in operations conducted by the North Atlantic Treaty Organization. Subsections 405(b) and (d) together provide that the President may waive the limitation if he certifies to Congress fifteen days in advance of the placement that it is “ in the national security interests of the United States to place any ele­ ment of the armed forces under United Nations operational or tactical control,” and provides a detailed report setting forth specific items of information within eleven distinct categories.2 If the President certifies that an “ emergency” pre­ cluded compliance with the fifteen day limitation, he must make the required cer­ tification and report in a timely manner, but no later than forty-eight hours after a covered operational or tactical control is initiated. The proposed amendment unconstitutionally constrains the President’s exercise of his constitutional authority as Commander-in-Chief. Further, it undermines his constitutional role as the United States’ representative in foreign relations. While “ [t]he constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping,” United States v. O ’Brien, 391 U.S. 367, 377 (1968), Congress may not deploy that power so as to exercise functions constitutionally committed to the Executive alone, for that would “ pose a ‘danger of congressional usurpation of Executive Branch func­ tions.’ ” Morrison v. Olson, 487 U.S. 654, 694 (1988) (quoting Bowsher v. Synar, 478 U.S. 714, 727 (1986)). Nor may Congress legislate in a manner that “ ‘impermissibly undermine[s]’ the powers of the Executive Branch, [Commodity Futures Trading Com m ’n v.] Schor, [478 U.S. 833 (1986)] at 856, or ‘disrupts the proper balance between the coordinate branches [by] preventing] the Execu­ tive Branch from accomplishing its constitutionally assigned functions,’ Nixon v. Administrator o f General Services, [433 U.S. 425 (1977)] at 433.” M orrison, 487 1There is also an exception made for ongoing operations in Macedonia and Croatia. 2 As detailed in subsection 405(d), the report must include eleven distinct elements. It must set forth: (1) a descrip­ tion o f the national security interests that would be served by the troop placement; (2) the mission of the U.S. forces involved; (3) the expected size and composition o f the U S. forces involved; (4) the precise command and control relationship between the U.S. forces involved and the U.N. command structure; (5) the precise command and control relationship between the U.S. forces involved and the commander o f the U.S. unified command for the region in which those U.S. forces are to operate; (6) the extent to which the U.S. forces involved will rely on other nations* forces for security and defense and an assessment o f the capability of those foreign forces to provide adequate security to the U.S. forces involved; (7) the exit strategy for complete withdrawal of the U.S. forces involved; (8) the extent to which the commander o f any unit proposed for the placement would at all times retain the rights to report independently to superior U.S. military authorities and to decline to comply with orders judged by that commander to be illegal o r beyond the mission's mandate until such time as that commander has received direction from superior U.S. military authorities; (9) the extent to which the United States retains the author­ ity to withdraw any element o f the armed forces from the proposed operation at any time and to take any action it considers necessary to protect those forces if they are engaged; (10) the extent to which the U.S. forces involved will be required to wear as part o f their uniform a device indicating U.N. affiliation; and (11) the anticipated m onthly incremental cost to the United States o f participation in the U.N. operation by U.S. forces proposed to be placed under U.N. operational or tactical control. 183 Opinions o f the Office o f Legal Counsel in Volume 20 U.S. at 695. Even though there are areas in which both Congress and the President have a constitutional voice, and in which Congress, therefore, may rely on its own constitutional authority to seek to guide and constrain presidential choices, it may not impose constraints in the areas that the Constitution commits exclu­ sively to the President. See, e.g., Letter for Richard Darman, Director, Office of Management and Budget, from Bruce Navarro, Deputy Assistant Attorney Gen­ eral, Office of Legislative Affairs (Feb. 2, 1990) (finding provision of Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, Pub. L. No. 101-246, 104 Stat. 15 (1990), limiting President’s ability to receive spies as ambassadors, unconstitutional even though President could waive limitation if it was in the na­ tional security interests of the United States to do so). Article II, Section 2, of the Constitution declares that the President “ shall be Commander in Chief of the Army and Navy of the United States.” Whatever the scope of this authority in other contexts, there can be no room to doubt that the Commander-in-Chief Clause commits to the President alone the power to se­ lect the particular personnel who are to exercise tactical and operational control over U.S. forces. See Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850) (“ As commander-in-chief, [the President] is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual . . . .” ). Indeed, the major object of the Clause is to “ vest in the President the supreme command over all the military forces, — such supreme and undivided command as would be necessary to the prosecution of a successful war.” United States v. Sweeny, 157 U.S. 281, 284, (1895); see also Nordmann v. W oodring, 28 F. Supp. 573, 578 (W.D. Okla. 1939) (“ [A]s Commander in Chief, the President has the power to employ the Army and the Navy in a manner which he may deem most effectual.” ); The Fed­ eralist No. 69, at 465 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (“ [The Commander in Chief power] would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Ad­ miral of the confederacy . . . .” ); William Howard Taft, The Boundaries Between the Executive, the Legislative a n d the Judicial Branches o f the Government, 25 Yale L.J. 599, 610 (1916) (the Commander-in-Chief Clause precludes Congress from “ ordering] battles to be fought on a certain plan” or “ direct[ing] parts of the army to be moved from one part of the country to another” ); George Suth­ erland, Constitutional Power a n d W orld Affairs 76-77 (1919) (“ In the actual con­ duct of military operations, in the field where the battles are being fought, in the movement, disposition and discipline of the land and naval forces, the Com­ mander-in-Chief is supreme.” ). As Attorney General (later Justice) Robert Jackson explained, the President’s responsibility as Commander in Chief embraces the authority to command and direct the armed forces in their imme184 Placing o f United States Armed Forces Under United Nations Operational or Tactical Control diate movements and operations designed to protect the security and effectuate the defense of the United States. . . . [T]his author­ ity undoubtedly includes the power to dispose of troops and equip­ ment in such manner and on such duties as best to promote the safety of the country. Training o f British Flying Students in the United States, 40 Op. Att’y Gen. 58, 61-62(1941). It is for the President alone, as Commander-in-Chief, to make the choice of the particular personnel who are to exercise operational and tactical command functions over the U.S. Armed Forces. True, Congress has the power to lay down general rules creating and regulating “ the framework of the Military Establish­ ment,” Chappell v. Wallace, 462 U.S. 296, 301 (1983), but such framework rules may not unduly constrain or inhibit the President’s authority to make and to imple­ ment the decisions that he deems necessary or advisable for the successful conduct of military missions in the field, including the choice of particular persons to perform specific command functions in those missions. Thus, for example, the President’s constitutional power to appoint a particular officer to the temporary grade of Marine Corps brigadier general could not be undercut by the failure of a selection board, operating under a general statute prescribing procedures for pro­ motion in the armed services, to recommend the officer for that promotion. See Promotion o f Marine Officer, 41 Op. Att’y Gen. 291 (1956). As Acting Attorney General Rankin advised President Eisenhower on that occasion, “ [w]hile Congress may point out the general class of individuals from which an appointment may be made and may impose other reasonable restrictions it is my opinion that the instant statute goes beyond the type of restriction which may validly be im­ posed. . . . It is recognized that exceptional cases may arise in which it is essen­ tial to depart from the statutory procedures and to rely on constitutional authority to appoint key military personnel to positions of high responsibility.” Id. at 293, 294 (citations omitted).3 In the present context, the President may determine that the purposes of a particular U.N. operation in which U.S. Armed Forces participate would be best served if those forces were placed under the operational or tactical control of an agent of the U.N., as well as under a U.N. senior military commander who was a foreign national (or a U.S. national who is not an active duty military officer). Congress may not prevent the President from acting on such a military 3 The Acting Attorney General’s opinion relied chiefly on Congress’s inability to undermine the President’s author­ ity under the Appointments Clause, U.S. Const, art. II, § 2 , rather than on the promotion procedure’s effect on the Commander-in-Chief power. The President’s appointment power is not at issue here, because the foreign or other nationals performing command functions at the President’s request would be discharging specific military func­ tions, but would not be serving in federal offices. See Memorandum for Andrew Fois, Assistant Attorney General, Office o f Legislative Affairs, from Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Defense Authorization Act at 2 n .l (Sept. 15, 1995). Nonetheless, we believe that the reasoning under the Commander-in-Chief Clause closely parallels that under the Appointments Clause. 185 Opinions o f the Office o f Legal Counsel in Volume 20 judgment concerning the choice of the commanders under whom the U.S. forces engaged in the mission are to serve. Moreover, in seeking to impair the President’s ability to deploy U.S. Armed Forces under U.N. operational and tactical command in U.N. operations in which the United States may otherwise lawfully participate, Congress is impermissibly undermining the President’s constitutional authority with respect to the conduct of diplomacy. See, e.g., Department o f N avy v. Egan, 484 U.S. 518, 529 (1988) (the Supreme Court has “ recognized ‘the generally accepted view that foreign policy was the province and responsibility of the Executive’ ” ) (quoting Haig v. A gee, 453 U.S. 280, 293-94 (1981)); A lfred Dunhill o f London, Inc. v. Republic o f Cuba, 425 U.S. 682, 705-06 n.18 (1976) (“ [T]he conduct of [foreign policy] is committed primarily to the Executive Branch.” ); 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” ); Acquisition o f N aval and A ir B ases in Exchange fo r O ver-Age D estroyers, 39 Op. Att’y Gen. 484, 486 (1940) (Jackson, Att’y Gen.) (the Constitution “ vests in the President as a part of the Executive function” “ control of foreign relations” ). United Nations peace­ keeping missions involve multilateral arrangements that require delicate and com­ plex accommodations of a variety of interests and concerns, including those of the nations that provide troops or resources, and those of the nation or nations in which the operation takes place. The success of the mission may depend, to a considerable extent, on the nationality of the commanding officers, or on the degree to which the operation is perceived as a U.N. activity (rather than that of a single nation or bloc of nations). Given that the United States may lawfully participate in such U.N. operations, we believe that Congress would be acting unconstitutionally if it were to tie the President’s hands in negotiating agreements with respect to command structures for those operations.4 It might be argued that section 405 does not impose a significant constraint on the President’s constitutional authority because it grants the President the au­ thority to waive the prohibition whenever he deems it in the “ national security interest’’ of the United States to do so, provided he reports his decision to execute a waiver to Congress fifteen days in advance. If he certifies that an emergency is present, he may avoid the fifteen day limitation and make a report in a timely manner, but no later than forty-eight hours after troops are placed under U.N. command. Thus, functionally, section 405 effects only a conditional ban on the 4 Past Presidents have committed U.S. forces to foreign command. For example, at a time of great military and diplom atic exigency during the First W orld War, President W oodrow W ilson agreed, after discussions with our allies, to place U.S. forces under General Foch, a French commander. General Pershing called on General Foch at his headquarters to say, *‘[i]nfantry, artillery, aviation, all that we have are yours; use them as you w ish." 8 Ray Stannard Baker, Woodrow Wilson: Life and Letters 60 (1939); see also id. at 62 (President W ilson’s telegram to G eneral Foch, staling that “ [s]uch unity of command is a most hopeful augury of ultimate success"); id. at 6 9 -7 0 (resolution o f Suprem e W ar Council, statuig that General Foch “ is charged by the British, French and Amer­ ican G overnm ents with the coordination o f the action o f the Allied Armies on the W estern Front; to this end there is conferred on him all the powers necessary for its effective realization"). 186 Placing o f United States A rm ed Forces Under United Nations Operational or Tactical Control President’s constitutional authority to control the tactical and operational deploy­ ment of U.S. forces.5 Congress cannot, however, burden or infringe the Presi­ dent’s exercise of a core constitutional power by attaching conditions precedent to the exercise of that power. Attorney General Brownell put the matter well: It is recognized that the Congress may grant or withhold appropria­ tions as it chooses, and when making an appropriation may direct the purposes to which the appropriation shall be devoted. It may also impose conditions with respect to the use of the appropriation, provided always that the conditions do not require operation of the Government in a way forbidden by the Constitution. If the practice of attaching invalid conditions to legislative enactments were per­ missible, it is evident that the constitutional system of the separa­ bility of the branches of Government would be placed in the gravest jeopardy. Authority o f Congressional Committees to D isapprove Action o f Executive Branch, 41 Op. Att’y Gen. 230, 233 (1955). Similarly, then-Assistant Attorney General Rehnquist opined: Even in the area of domestic affairs, where the relationship between Congress and the President is balanced differently than it is in the field of external affairs, virtually every President since Woodrow Wilson had had occasion to object to certain conditions in author­ ization legislation as being violative of the separation of powers between the Executive and the legislative branch. The problem would be met in exacerbated form should Congress attempt by de­ tailed instructions as to the use of American forces already in the field to supersede the President as Commander-in-Chief of the armed forces. William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, The President and the W ar Power: South Vietnam and the Cambodian Sanctuaries 21 (May 22, 1970).6 We are mindful that Congress has framed its restriction on placing troops under U.N. control as a prohibition on the obligation or expenditure of appropriated funds. That Congress has chosen to invade the President’s authority indirectly, 5 Arguably, section 403 effects a complete ban on the use o f appropriated funds to support troops under U.N. control in circumstances when the President would find such a deployment advisable but not strictly in the national security interest o f the United States. We doubt, however, that such a circumstance is more than hypothetically possible. If the President found it advisable to place U.S. forces under U.N. control, then, ipso facto, it would be in the national security interest to place those troops under U.N. control. To the extent that a contrary circumstance could truly arise, then section 405 is unconstitutional. 4 In a footnote to the text quoted above, Mr. Rehnquist added- “ All o f these Presidents have stated in one way or another that just because Congress concededly may refrain from appropriating money at all, it does not necessarily follow that it may attach w hatever condition it desires to an appropriation which it does m ake.” Id. at 21 n.3. 187 Opinions o f the Office o f Legal Counsel in Volume 20 through a condition on an appropriation, rather than through a direct mandate, is immaterial. Broad as Congress’s spending power undoubtedly is, it is clear that Congress may not deploy it to accomplish unconstitutional ends.7 In particular, as our Office has insisted over the course of several Administrations, “ Congress may not use its power over appropriation of public funds ‘ “ to attach conditions to Executive Branch appropriations requiring the President to relinquish his con­ stitutional discretion in foreign affairs.” ’ ” Issues Raised by Provisions Directing Issuance o f Official or D iplom atic Passports, 16 Op. O.L.C. 18, 28 (1992) (quoting Issues R aised by Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 42 n.3 (1990) (quoting Constitutionality o f Proposed Statutory Provision Re­ quiring P rior Congressional N otification fo r Certain C .IA . Covert Actions, 13 Op. O.L.C. 258, 261 (1989))).8 WALTER DELLINGER Assistant Attorney General Office o f Legal Counsel 7 See United States v. Lovett, 328 U.S. 303, 316 (1946) (appropriations power misused to impose bill of attainder); United States v. Klein, 80 U.S. (13 Wall.) 128 (1872) (appropriations act unconstitutionally intruded on President’s pardon power); cf. Metropolitan Washington Airports Auth. v. Citizens for the Abatement o f Aircraft Noise, Inc., 501 U.S. 252, 271 (1991) (Congress may not use its power over Federal property to achieve ends by indirect means that it is forbidden to achieve directly); Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 594 (1926) (State legislature cannot attach unconstitutional condition to privilege that it may deny); see also Mutual Security Program — Cutoff o f Funds from Office o f Inspector General and Comptroller, 41 Op. A tt’y Gen. 507, 530 (1960) (A tt’y Gen. Rogers) ( “ [T]he Constitution d o es not permit any indirect encroachment by Congress upon [the] authority o f the President through resort to conditions attached to appropriations.” ); Constitutionality o f Proposed Legislation Affecting Tax Refunds, 37 Op. A tt’y Gen. 5 6 , 61 (1933) (A tt'y Gen. Mitchell) ( “ This proviso can not be sustained on the theory that it is a proper condition attached to an appropriation. Congress holds the purse strings, and it may grant o r withhold appropriations as it chooses, and when making an appropriation may direct the purposes to which the appropriation shall be devoted and impose conditions in respect to its use, provided always that the conditions do not require operation of the Government in a way forbidden by the Constitution.” ), Memorial o f Captain Meigs, 9 Op. A tt’y Gen. 462, 4 6 9 -7 0 (1860) (concluding that appropriations bill that contained condition that money be spent only under supervision o f congressionally-designated individual was invalid); W illiam P. Ban, The Appropriations Power and the Necessary and Proper Clause, 68 Wash. U. L.Q. 623, 628 (1990) ( “ Congress cannot use the appropriations power to control a Presidential power that is beyond its direct control.” ); Harold H. Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons o f the Iran-Contra Affair, 97 Yale L.J. 1255, 1303 n.218 (1988) (citing support fo r view that Congress acts unconstitutionally if it refuses to appropriate funds for President to carry out his enumerated constitutional responsibilities); Kate Stith, Congress' Power o f the Purse , 97 Yale L.J. 1343, 1351 (1988); Louis Henkin* Foreign Affairs and the Constitution 115 (1972) ( “ Congress cannot impose conditions which invade Presidential prerogatives to which the spending is at most incidental."). 8 See also The President’s Compliance with the “Timely Notification" Requirement o f Section 501(b) o f the Na­ tional Security Act, 10 Op. O.L.C. 159, 1 6 9 -7 0 (1986) ( “ [W]hile Congress unquestionably possesses the power to make decisions as to the appropriation o f public funds, it may not attach conditions to Executive Branch appropria­ tions that require the President to relinquish an y o f his constitutional discretion in foreign affairs.” ). This limitation on legislative power has also been acknowledged by Members o f Congress. See Oirin Hatch, What the Constitution Means by Executive Power, 43 U. Miami L. Rev. 197, 200-01 (1988) ( “ [C onstitutional foreign policy functions may not be eliminated by a congressional refusal to appropriate funds. The Congress may not, for exam ple, deny the President funding to receive ambassadors, negotiate treaties, or deliver foreign policy addresses . . . . Congress oversteps its role when it undertakes to dictate the specific terms of international rela­ tions.” ); Eli E. Nobleman, Financial Aspects o f Congressional Participation in Foreign Relations, 289 Annals Am. A cad. Pol. & Soc. Sci. 145, 150 (1953) (citing remarks o f Representative Daniel Webster, objecting on constitutional grounds in 1826 to appropriations rider that puiported to attach instructions to United States diplomats). 188