Constitutional Limitations on Federal Government Participation in Binding Arbitration: Memorandum for John Schmidt, Associate Attorney General [September 7, 1995]   [open pdf - 115KB]

"You have asked for our opinion as to whether the Constitution in any way limits the authority of the federal government to submit to binding arbitration. Specifically, you have asked us to explain and expand on advice we issued on September 19, 1994, in which we confirmed our earlier oral advice that 'the Office of Legal Counsel no longer takes the view that the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, bars the United States from entering into binding arbitration.' Memorandum from Dawn Johnsen, Deputy Assistant Attorney General, to David Cohen, Director, Commercial Litigation Branch, Civil Division, re: Binding Arbitration (Sept. 19, 1994). Below, we reiterate this conclusion and, pursuant to your request, set forth the reasoning by which we reached it. In addition, we consider, again pursuant to your request, the various other constitutional provisions that may be implicated when the federal government enters into binding arbitration. We conclude that none absolutely bars the federal government from taking such action. We should point out, however, that Executive Order No. 12778 remains in effect. See 56 Fed. Reg. 55195 (1991). That order forbids litigation counsel for federal agencies from seeking or agreeing to enter into binding arbitration. Id. § 1(c)(3). Therefore, while a constitutionally valid statute may compel litigation counsel to enter into binding arbitration, litigation counsel may not voluntarily agree to binding arbitration."

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