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Department of Justice Policy on Indian Sovereignty and Government-to-Government Relations with Indian Tribes
The purpose of this policy document is to reaffirm the Department of Justice's (DOJ)recognition of the sovereign status of federally recognized Indian tribes as domestic dependent nations and to reaffirm adherence to the principles of government-to-government relations; to inform Department personnel, other federal agencies, federally recognized Indian tribes, and the public of the Department's working relationships with federally recognized Indian tribes; and to guide the Department in its work in the field of Indian affairs.
United States. Department of Justice
1995-06-01
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Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund: Memorandum for the Assistant Attorney General, Civil Division [May 22, 1995]
"Because the Randolph-Sheppard Memorandum mischaracterizes the Commissary Fund as a common law trust and suggests that, as trustee, the BOP has a fiduciary obligation to federal prison inmates to expend Commissary Fund income in accordance with the terms of the trust, see Randolph-Sheppard Memorandum at 4, 10, we disavow those aspects of the opinion which analyze the Commissary Fund under general trust law principles. Instead, for the reasons stated below, we conclude that 31 U.S.C. § 1321 and its accompanying Department of Justice ('DOJ') regulations do not impose a fiduciary obligation on the BOP to expend Commissary Fund moneys only in accordance with the terms of the Commissary Fund. Although we recognize that the trust fund analysis contained in our Sheppard-Randolph Memorandum was based to some degree on our interpretation of a memorandum attachment to a letter for Honorable Elmer B. Staats, Comptroller General of the United States, General Accounting Office, from Frank M. Wozencraft, Assistant Attorney General, Office of Legal Counsel, Re: Set-Offs Against Prisoners' Trust Funds (Aug. 23, 1968)('Prisoners' Trust Fund Memorandum'), we nonetheless reaffirm the analysis presented in the Prisoners' Trust Fund Memorandum. However, we limit the memorandum's applicability solely to those 'trust funds' established under 31 U.S.C. § 1321 that do impose fiduciary obligations on the United States."
United States. Department of Justice. Office of Legal Counsel
1995-05-22
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Bill to Relocate United States Embassy from Tel Aviv to Jerusalem: Memorandum Opinion for the Counsel to the President [May 16, 1995]
"In general, because the venue at which diplomatic relations occur is itself often diplomatically significant, Congress may not impose on the President its own foreign policy judgments as to the particular sites at which the United States' diplomatic relations are to take place. More specifically, Congress cannot trammel the President's constitutional authority to conduct the Nation's foreign affairs and to recognize foreign governments by directing the relocation of an embassy. This is particularly true where, as here, the location of the embassy is not only of great significance in establishing the United States' relationship with a single country, but may well also determine our relations with an entire region of the world. Finally, to the extent that S. 770 is intended to affect recognition policy with respect to Jerusalem, it is inconsistent with the exclusivity of the President's recognition power."
United States. Department of Justice. Office of Legal Counsel
1995-05-16
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Authority of the Secretary of the Treasury to Order the Closing of Certain Streets Located Along the Perimeter of the White House: Memorandum for Edward S. Knight, General Counsel, Department of the Navy [May 12, 1995]
"This is in response to your request for a legal opinion from the Office of Legal Counsel ('OLC') on whether the Secretary of the Treasury ('Secretary') has the authority to order the closing to vehicular traffic of (1) Pennsylvania Avenue between 17th Street and Madison Avenue, (2) State Place, (3) and the segment of South Executive Avenue that connects into State Place in furtherance of his responsibility to protect the President under 18 U.S.C. § 3056. Based on a review of § 3056 and related statutes, their legislative histories, and relevant court and OLC opinions, we conclude that § 3056 grants the Secretary broad authority to take actions that are necessary and proper to protect the President. In light of the recommendations of the White House Security Review and the United States Secret Service's unique expertise and special responsibility in this matter, we agree with your conclusion that § 3056 authorizes the actions contemplated by the Secretary."
United States. Department of Justice. Office of Legal Counsel
1995-05-12
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Whether 18 U.S.C. § 603 Bars Civilian Executive Branch Employees and Officers from Making Contributions to a President's Authorized Re-Election Campaign Committee: Memorandum Opinion for the Counsel to the President [May 5, 1995]
"You have asked for our opinion with respect to whether 18 U.S.C. § 603 would bar civilian executive branch employees and officers from making contributions to a President's authorized re-election campaign committee. For the reasons expressed below, we conclude that such employees and officers would not violate § 603 by making such contributions, without more."
United States. Department of Justice. Office of Legal Counsel
1995-05-05
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Impermissibility of Deputizing the House Sergeant at Arms as a Special Deputy U.S. Marshal: Memorandum for the Deputy Attorney General [April 10, 1995]
"You have asked our opinion whether there is any constitutional impediment to the deputation of the Sergeant at Arms of the House of Representatives ('HSA') as a Special Deputy United States Marshal ('DUSM'). Given the nature of the HSA's status and statutory duties as an Officer of the House -- which include maintaining order in the House under the direction of the Speaker -- it would be virtually impossible to separate or segregate those duties from the law enforcement duties of a DUSM, giving rise to inherent conflicts in accountability between the two positions. Consequently, we conclude that the proposed arrangement would raise serious concerns under the constitutional separation of powers."
United States. Department of Justice. Office of Legal Counsel
1995-04-10
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Executive Order No. 12954, Entitled 'Ensuring the Economical and Efficient Administration and Completion of Federal Government Contracts': Memorandum for the Attorney General [March 9, 1995]
"On March 6, 1995, we issued a memorandum approving as to form and legality a proposed executive order entitled, 'Ensuring the Economical and Efficient Administration of Federal Government Contracts.' On March 8, 1995 the President signed the proposed directive, making it Executive Order No. 12954. This memorandum records the basis for our prior conclusion that the Federal Property and Administrative Services Act vests the President with authority to issue Executive Order No. 12954 in light of his finding that it will promote economy and efficiency in government procurement."
United States. Department of Justice. Office of Legal Counsel
1995-03-09
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Permissibility of the Administration and Use of the Federal Payroll Allocation System by Executive Branch Employees for Contributions to Political Action Committees: Memorandum for the Director, Office of Personnel Management [February 22, 1995]
"Early last year, the Office of Personnel Management ('OPM') advised executive branch officials that executive branch employees now are permitted to make voluntary salary allotments to political action committees ('PACs'), using the mechanisms otherwise available to federal employees for salary allotments to other organizations and institutions. Under the salary-allotment system, a federal employee can authorize federal payroll administrators to transmit portions of his or her salary, on a regular basis, to certain persons or institutions designated by the assigning employee. […] While we have concluded that use of the salary-allocation system for PAC contributions would be lawful under certain circumstances, nevertheless the head of each federal agency has the discretion to decide whether to make the system available for that purpose to employees of the agency."
United States. Department of Justice. Office of Legal Counsel
1995-02-22
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Authority of FBI Agents, Serving as Special Deputy United States Marshals, to Pursue Non-Federal Fugitives: Memorandum for Howard M. Shapiro, General Counsel, Federal Bureau of Investigation [February 21, 1995]
"You have requested our opinion on the authority of FBI agents, serving as Special Deputy United States Marshals, to participate in federal-state task force efforts to locate and arrest fugitives charged with violations of state law where federal process is neither outstanding nor anticipated. Our conclusions on this matter may be summarized as follows: (1) Regardless of whether federal process is outstanding or anticipated, FBI agents have authority to investigate (and sometimes arrest) fugitive felons when there is a reasonable basis to believe that doing so will detect or prevent the commission of any federal crime, including violations of the Fugitive Felons Act [FFA]. That may include situations where a state fugitive has not yet crossed state lines but has engaged in evasive movements or a course of conduct that manifests an intent to cross a state or national border and violate the FFA."
United States. Department of Justice. Office of Legal Counsel
1995-02-21
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Internal Revenue Service Notices of Levy on Undelivered Commerce Department Fishing Quota Permits: Memorandum for Ginger Lew, General Counsel, Department of Commerce [January 26, 1995]
"This responds to your letter of November 4, 1994 requesting our opinion whether the Department of Commerce ('DOC') may withhold delivery of quota shares or individual fishing quotas issued to eligible fishermen under the provisions of federal fishery laws in order to comply with a notice of levy served on DOC by the Internal Revenue Service ('IRS'), demanding that the permits be surrendered to IRS to satisfy tax delinquencies. Upon receipt of your letter, we solicited and received a submission from the IRS setting forth its views on this inter-departmental dispute. We conclude that the notices of levy may be lawfully applied to the undelivered quota shares and individual fishing quotas, and we find no legal basis for the DOC to refuse to comply with them. Our analysis follows."
United States. Department of Justice. Office of Legal Counsel
1995-01-26
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Relationship Between Department of Justice Attorneys and Persons on Whose Behalf the United States Brings Suits Under the Fair Housing Act: Memorandum for Deval L. Patrick, Assistant Attorney General, Civil Rights Division [January 20, 1995]
"We believe that when the Department of Justice undertakes a matter 'on behalf of' a complainant, the Department attorney does not enter into an attorney-client relationship with the complainant. Likewise, when the Department files a pattern or practice case under § 3614, seeking damages on behalf of aggrieved persons, no attorney-client relationship is established with those for whom damages are sought. The structure of the statute compels this conclusion. Congress recognized not only that the government's interests in large measure coincide with those of aggrieved parties, but also -- and importantly for our purposes here -- that the interests of the complainant or aggrieved persons may diverge from that of the government. Such potential divergence of interest would be inconsistent with interpreting the statute as establishing attorney-client relationships between the government and the complainants on whose behalf the Department litigates."
United States. Department of Justice. Office of Legal Counsel
1995-01-20
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Kansas City Gun Experiment
"Discussed in this Brief: An evaluation of a police patrol project to reduce gun violence, driveby shootings, and homicides in a patrol beat where the homicide rate was 20 times higher than the national average. Key issues: Gun crime is rising rapidly nationwide, while other types of crime are falling. The need for strategies to control gun crime is critical. If police could get more guns off the street, would there be fewer gun crimes? This was the question posed by the Kansas City program. Key findings: The results of the evaluation indicate that directed police patrols in gun crime 'hot spots' can reduce gun crimes by increasing the seizures of illegally carried guns."
United States. Office of Justice Programs; National Institute of Justice (U.S.); United States. Department of Justice
Sherman, Lawrence W.; Shaw, James W.; Rogan, Dennis P.
1995-01
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Authority of the Federal Financial Supervisory Agencies Under the Community Reinvestment Act: Memorandum for Eugene A. Ludwig, Comptroller of the Currency [December 15, 1994]
"This memorandum responds to your request for our opinion concerning whether the federal financial supervisory agencies ('the agencies') have authority under the Community Reinvestment Act of 1977 ('CRA'), 12 U.S.C. § 2901 et seq., to provide by regulation that financial institutions that do not meet the credit needs of their communities may be subject to administrative enforcement actions under 12 U.S.C. § 1818. We conclude that the agencies lack such authority."
United States. Department of Justice. Office of Legal Counsel
1994-12-15
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Whether Uruguay Round Agreements Required Ratification as a Treaty: Memorandum to Ambassador Michael Kantor, United States Trade Representative [November 22, 1994]
"This memorandum supplements our earlier opinion on the question whether the Uruguay Round Agreements concluded under the auspices of the General Agreement on Tariffs and Trade (the 'GATT') must be ratified as a treaty. It replies to two later papers by Professor Laurence H. Tribe, and his testimony before the Senate Committee on Commerce, Science, and Transportation, that have disputed our conclusion on that subject. After considering Professor Tribe's arguments, we again conclude that the Uruguay Round Agreements may constitutionally be adopted by the passage of implementing legislation by both Houses of Congress, together with signing by the President."
United States. Department of Justice. Office of Legal Counsel
1994-11-22
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Application of 18 U.S.C. § 205 to Communications Between the National Association of Assistant United States Attorneys and the Department of Justice: Memorandum for the Attorney General [November 7, 1994]
"You have asked for our opinion as to whether and how the provisions of 18 U.S.C. § 205 apply to communications between employee members of the National Association of Assistant United States Attorneys (NAAUSA) and officials of the Department. After consulting with the Office of Government Ethics, whose views on this question were provided to us in an advisory opinion dated September 28, we have concluded that while discussions of broad policy options are not 'covered matters' within the meaning of the statute, several of the issues NAAUSA may wish to present constitute 'covered matters' under § 205. Accordingly, that section's prohibition on representational activities would bar a federal employee from representing NAAUSA's position on those matters before department officials. Section 205 is not a barrier to other types of communications between the Department and NAAUSA or similar associations. The Department is in no way precluded from dealing with individual or groups of AUSAs [Assistant U.S. Attorneys] in their official capacities on matters affecting AUSAs, even if those AUSAs are coincidentally members of NAAUSA. Nor does § 205 place any restrictions on representatives who are not current federal employees, such as NAAUSA's executive director or any former AUSAs no longer employed by the government. Finally, discussions of broad policy directed towards a large and diverse group of persons would be permissible under the statute."
United States. Department of Justice. Office of Legal Counsel
1994-11-07
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Presidential Authority to Decline to Execute Unconstitutional Statutes: Memorandum for the Honorable Abner J. Mikva, Counsel to the President [November 2, 1994]
"First, there is significant judicial approval of this proposition. Most notable is the Court's decision in Myers v. United States, 272 U.S. 52 (1926). There the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute. More recently, in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has 'the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional.' Id. at 906 (Scalia, J., concurring); […] Second, consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional. See, e.g., Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer); see also annotations of attached Attorney General and Office of Legal Counsel opinions. Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS [Immigration and Naturalization Service] v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions)."
United States. Department of Justice. Office of Legal Counsel
1994-11-02
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Twenty-Second Decennial Census: Memorandum for the Solicitor General [October 7, 1994]
"You have asked, on behalf of the Department of Commerce, for our advice on the questions whether the use of statistically adjusted census figures would be consistent with the Constitution, 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 of 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 problems, the Department of Commerce is considering the use of statistical adjustments in the twenty-second decennial census (for the year 2000) before the final count is completed in order to improve the accuracy of that census. The Department of Commerce is also considering the use of sampling to conduct the follow-up on households that did not respond to its initial mailing of questionnaires. Accordingly, it desires to know whether such procedures would be lawful. We conclude that both of the proposed changes in conducting the census would be lawful."
United States. Department of Justice. Office of Legal Counsel
1994-10-07
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Availability of Money Damages Under the Religious Freedom Restoration Act: Memorandum for John R. Schmidt, Associate Attorney General [October 7, 1994]
"In response to discussion at the Task Force meeting of September 26 and 27, 1994, we have considered whether the Religious Freedom Restoration Act ('RFRA') authorizes the recovery of money damages in suits against the United States or state governments. Specifically, the question addressed in the Task Force's Second Working Draft ('Working Draft') is whether § 3(c) of RFRA, which makes available 'appropriate relief' in judicial proceedings against federal and state government entities, waives or abrogates the sovereign immunity that would otherwise bar the award of money damages against the United States and state governments. On this point, we are in agreement with the conclusion of the Working Draft: RFRA's reference to 'appropriate relief' is not sufficiently unambiguous to abrogate or waive sovereign immunity for damages."
United States. Department of Justice. Office of Legal Counsel
1994-10-07
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Mutual Consent Provisions in the Guam Commonwealth Legislation: Memorandum Opinion for the Special Representative for Guam Commonwealth [July 28, 1994]
"The Guam Commonwealth Bill, H.R. 1521, 103d Cong., 1st Sess. (1993) contains two sections requiring the mutual consent of the Government of the United States and the Government of Guam. Section 103 provides that the Commonwealth Act could be amended only with mutual consent of the two governments. Section 202 provides that no Federal laws, rules, and regulations passed after the enactment of the Commonwealth Act would apply to Guam without the mutual consent of the two governments. The Representatives of Guam insist that these two sections are crucial for the autonomy and economy of Guam. The former views of this Office on the validity or efficacy of mutual consent requirements included in legislation governing the relationship between the federal government and non-state areas, i.e. areas under the sovereignty of the United States that are not States, have not been consistent. We therefore have carefully reexamined this issue. Our conclusion is that these clauses raise serious constitutional issues and are legally unenforceable."
United States. Department of Justice. Office of Legal Counsel
1994-07-28
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Constitutionality of Legislation Extending the Terms of Office of United States Prole Commissioners: Memorandum for the Deputy Attorney General [July 15, 1994]
"You have asked for our opinion as to whether Pub. L. 101-650, § 316, which extends the terms of United States Parole Commissioners to November 1, 1997, violates the Appointments Clause of the Constitution. […] We conclude that it does not. The United States Parole Commission ('Parole Commission') is an 'independent agency in the Department of Justice,' 18 U.S.C. § 4202, and is vested with authority to establish the organizational structure for receiving, hearing, and deciding requests for parole; to grant or deny an application for parole; to impose reasonable conditions on an order granting parole; to modify or revoke an order paroling any prisoner; to request probation officers and any other appropriate individuals or entities to assist or supervise parolees; and to issue rules and regulations for effectuating these powers. Id. § 4203. In addition, the Chairman of the Parole Commission has the authority to appoint and fix the compensation of the Parole Commission's employees, including hearing officers, to assign duties among officers and employees of the Parole Commission, and to otherwise administer the Parole Commission. […] The Parole Commission comprises nine commissioners appointed for six year terms. The statute also includes a holdover provision under which commissioners continue to serve until a successor is appointed, 'except that no commissioner may serve in excess of twelve years.'"
United States. Department of Justice. Office of Legal Counsel
1994-07-15
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United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking: Memorandum for Jamie S. Gorelick, Deputy Attorney General [July 14, 1994]
"The Aircraft Sabotage Act of 1984 applies to the police and military personnel of foreign governments. In particular, the Act applies to the use of deadly force by such foreign governmental actors against civil aircraft in flight that are suspected of transporting illegal drugs. There is accordingly a substantial risk that United States Government officers and employees who provide flight tracking information or certain other forms of assistance to the aerial interdiction programs of foreign governments that have destroyed such aircraft, or that have announced an intent to do so, would be aiding and abetting conduct that violated the Act. This memorandum summarizes our earlier advice concerning whether and in what circumstances United States Government (USG) officers and employees may lawfully provide flight tracking information and other forms of technical assistance to the Republics of Colombia and Peru. The information and other assistance at issue have been provided to the aerial interdiction programs of those two countries for the purpose of enabling them to locate and intercept aircraft suspected of engaging in illegal drug trafficking. Concern over the in-flight destruction of civil aircraft as a component of the counternarcotics programs of foreign governments is not novel. In 1990, soon after the inception of the USG assistance program, the United States made an oral démarche to the Colombian government informing that government that Colombian use of USG intelligence information to effect shootdowns could result in the suspension of that assistance."
United States. Department of Justice. Office of Legal Counsel
1994-07-14
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Review of 1988 Opinion Concerning the Applicability of Section 504 of the Rehabilitation Act to Individuals Infected with HIV: Memorandum for Stephen R. Colgate, Assistant Attorney General for Administration [July 8, 1994]
"You have asked us whether an Office of Legal Counsel [OLC] Memorandum of September 27, 1988, reprinted at 12 Op. O.L.C. 264 (1988) and entitled 'Application of Section 504 of the Rehabilitation Act to HIV-Infected Individuals,' accurately reflects the state of the law on this issue. That memorandum concluded that Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, bars discrimination against individuals infected with the Human Immunodeficiency Virus ('HIV'), whether or not the infection has resulted in illness. […] We have reviewed the 1988 O.L.C. Memorandum, and have concluded that it accurately describes the duties imposed by Section 504 of the Rehabilitation Act with respect to individuals infected with HIV. We do, however, have a few comments to update the analysis of that Memorandum."
United States. Department of Justice. Office of Legal Counsel
1994-07-08
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Applicability of 18 U.S.C. § 208 to Proposed Appointment of Government Official to the Board of Connie Lee: Memorandum Opinion for the Assistant General Counsel, Department of the Treasury [June 22, 1994]
"This memorandum is in response to your request of May 23, 1994, for an opinion as to whether the Deputy Assistant Secretary, if appointed to the Board of Directors 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 participate 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)."
United States. Department of Justice. Office of Legal Counsel
1994-06-22
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Pre-Judgment Interest Under the Back Pay Act for Refunds of Federal Insurance Contributions Act Overpayments: Memorandum for Stephen W. Preston, Acting General Counsel, Department of Defense [May 31, 1994]
"This memorandum responds to your Office's request for our opinion whether civilian employees of the Department of Defense ('DoD') who receive from the Internal Revenue Service ('IRS') a refund of taxes that were deducted from their pay pursuant to 26 U.S.C. § 3121(a) of the Federal Insurance Contributions Act, 26 U.S.C. §§ 3101-3128 ('FICA'), as amended, are entitled to receive prejudgment interest on the refund from DoD pursuant to the Back Pay Act, 5 U.S.C. § 5596, as amended. We conclude that these DoD employees are not entitled to receive additional interest from DoD."
United States. Department of Justice. Office of Legal Counsel
1994-05-31
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Deputization of Members of Congress as Special Deputy U.S. Marshals: Memorandum for Francis J. Martin, Acting General Counsel, United States Marshal Service [May 25, 1994]
"You have requested our assistance in determining whether the United States Marshals Service may deputize members of Congress as special Deputy U.S. Marshals. The Director of the Marshals Service is authorized to deputize the following individuals to perform the functions of Deputy Marshals: selected officers or employees of the Department of Justice; federal, state or local law enforcement officers; private security personnel to provide courtroom security for the Federal judiciary; and other persons designated by the Associate Attorney General. […] We believe that deputation of members of Congress is inconsistent with separation of powers principles and with the statutory language and historical practice governing special deputation. First, deputizing members of Congress violates the principle recognized in Bowsher v. Synar, 478 U.S. 714 (1986), that Congress may not exceed its constitutionally prescribed authority by playing a direct role in executing the laws. The Marshals Service is clearly a part of the executive branch and the primary duties of Deputy Marshals are the execution and enforcement of federal law."
United States. Department of Justice. Office of Legal Counsel
1994-05-25
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Reconsideration of Applicability of the Davis-Bacon Act to the Veteran Administration's Lease of Medical Facilities: Memorandum for Thomas S. Williamson, Jr., Solicitor, Department of Labor, [and] Mary Lou Keener, General Counsel, Department of Veterans Affairs [May 23, 1994]
"At the request of the Attorney General, we have reviewed the principles and reasoning of a 1988 Office of Legal Counsel opinion concluding that the Davis-Bacon Act did not cover a contract entered into by the Veteran's Administration (now Department of Veterans Affairs) ('VA') for the long-term lease and construction of a building to be used as an outpatient clinic. […] We have concluded that the 1988 Opinion erred in concluding that the plain language of the Davis-Bacon Act bars its application to any lease contract, whether or not the lease contract also calls for construction of a public work or public building. We believe that the applicability of the Davis-Bacon Act to any specific lease contract can be determined only by considering the facts of the particular contract."
United States. Department of Justice. Office of Legal Counsel
1994-05-23
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Authority of Department of Housing and Urban Development to Initiate Enforcement Actions Under the Fair Housing Act Against Other Executive Branch Agencies: Memorandum for James S. Gilliland, General Counsel, Department of Agriculture [May 17, 1994]
"Pursuant to Executive Order 12146, you have asked us to resolve a dispute between the Department of Agriculture ('USDA') and the Department of Housing and Urban Development ('HUD') regarding 'whether a Federal agency, such as USDA, may be a respondent under the enforcement process contained in sections 810-812 and [814] of [the Fair Housing Act, 42 U.S.C. §§ 3601 et seq. ('the Act')], 42 U.S.C. §§ 3610-3612, 3614.' Applying the standard the Supreme Court has used when a particular interpretation or application of an Act of Congress would raise separation of powers or federalism concerns, we believe that because substantial separation of powers concerns would be raised by construing the Act to authorize HUD to initiate enforcement proceedings against other executive branch agencies, we cannot so construe the Act unless it contains an express statement that Congress intended HUD to have such authority. Because the Act does not contain such an express statement, we conclude that it does not grant HUD this authority. In light of this conclusion, we do not decide whether such a grant of authority would be constitutional."
United States. Department of Justice. Office of Legal Counsel
1994-05-17
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Eligibility of Involuntary Wartime Relocatees to Japan for Redress Under the Civil Liberties Act of 1988: Memorandum for Deval Patrick, Assistant Attorney General, Civil Rights Division [May 10, 1994]
"This memorandum is in response to your request for this Office's review of the proposed change in eligibility determinations under the Civil Liberties Act of 1988, Pub. L. No. 100-383, 102 Stat. 903 (codified at 50 app. U.S.C. § 1989 (1988)) ('the Act'). The proposed change would extend redress under the Act to minors who accompanied their parents to Japan during World War II and to adults who are able to show that their relocation to Japan during that period was involuntary. We conclude that the proposed change is a reasonable and permissible interpretation of the statute. We also have analyzed the implications of this change as to the deference the Department can expect from a reviewing court in the event of a challenge. An agency interpretation that has been modified or reversed is likely to receive less deference than a consistent and contemporaneous interpretation, but the fact of modification does not preclude a court from granting deference to the new interpretation."
United States. Department of Justice. Office of Legal Counsel
1994-05-10
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MARAD Rulemaking Authority Under Cargo Preference Laws: Memorandum for Stephen H. Kaplan, General Counsel, Department of Transportation [April 19, 1994]
"This responds to your letter requesting our opinion whether the U.S. Maritime Administration (MARAD) has authority to promulgate rules establishing mandatory uniform charter terms for the carriage of cargoes subject to the Cargo Preference Act of 1954 (CPA), section 901(b) of the Merchant Marine Act of 1936 (MMA), as amended, 46 U.S.C. app. § 1241(b). In addition to the submission accompanying your letter, on November 23, 1993, the Department of Agriculture (USDA) and the U.S. Agency for International Development (USAID) each submitted memoranda setting forth their views in opposition to MARAD's position (hereinafter cited as 'USDA Mem.' and 'USAID Mem.'). On January 25, 1994, we received a final submission from MARAD in reply to the submissions of USDA and USAID. We conclude that MARAD's statutory authority is broad enough to warrant issuance of charter term regulations. Under the CPA, agencies are only required to allocate the targeted share of cargo to U.S.-flag carriers to the extent that shipment on such carriers is available at 'fair and reasonable rates.' The proposed regulations appear to be a reasonable means of containing charter-related pass-through costs incurred by U.S.-flag carriers in the preference trade, thereby helping those carriers to maintain 'reasonable' rates and to utilize the full statutory allocation of cargo preference, both overall and by 'geographic areas,'"
United States. Department of Justice. Office of Legal Counsel
1994-04-19
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Equitable Transfers of Forfeited Monies or Property: Memorandum for Cary H. Copeland, Director and Chief Counsel, Executive Office for Asset Forfeiture [April 19, 1994]
"You have requested our assistance in determining whether equitable transfers of forfeited property to state and local law enforcement agencies should be viewed as contracts or as conditional gifts. Pursuant to 21 U.S.C. § 881 and 19 U.S.C. § 1616a, the Attorney General has the authority to share forfeited monies or tangible property with any state or local law enforcement agency which participated directly in the investigative or prosecutorial efforts leading to the seizure and forfeiture of the property. The local agency wishing to share in the forfeited property must apply by submitting an 'Application for Transfer of Federally Forfeited Property -- Form DAG-71' ('the DAG-71') within sixty days of the seizure. See A Guide to Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement Agencies, […] Both the shared property and any income generated from it 'must be used for the law enforcement purposes' specified by the requesting agency in its DAG-71 form. […] Permissible law enforcement purposes include, but are not limited to, the purchase of vehicles, weapons or protective equipment and the payment of salaries and other expenses."
United States. Department of Justice. Office of Legal Counsel
1994-04-19
