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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
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Authority of USDA to Award Monetary Relief for Discrimination: Memorandum for James S. Gilliland, General Counsel, Department of Agriculture [April 18, 1994]
"This memorandum responds to your request for our opinion concerning the authority of the Secretary of Agriculture to award damages and other forms of monetary relief, attorneys' fees, and costs to individuals who the Department of Agriculture ('USDA') has determined have been discriminated against as applicants for, or participants in, USDA conducted programs. You have informed us that the statutes authorizing these programs do not authorize such relief and have asked our opinion concerning whether various civil rights statutes authorize the Secretary to afford such relief. The Secretary has authority to award monetary relief, attorneys' fees, and costs if a court could award such relief in an action by the aggrieved person. Accordingly, the dispositive questions regarding your inquiry are whether the anti-discrimination provisions of the individual civil rights statutes apply to federal agencies, and if so, whether the statutes waive the sovereign immunity of the United States against imposition of such relief. […] We conclude that the anti-discrimination provisions of Title VI do not apply to federal agencies. Some anti-discrimination provisions in each of the other statutes that we reviewed do apply to federal agencies, but only one of the statutes, the Equal Credit Opportunity Act, waives sovereign immunity with respect to monetary relief, authorizing imposition of compensatory damages. The Fair Housing Act and the Rehabilitation Act do not waive immunity against monetary relief. Attorneys' fees and costs may be awarded pursuant to the waiver of immunity contained in the Equal Access to Justice Act."
United States. Department of Justice. Office of Legal Counsel
1994-04-18
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Sixth Amendment Implications of Law Enforcement Contact with Corporate Executives: Memorandum for Merrick B. Garland, Principal Associate Deputy Attorney General [April 15, 1994]
"You have asked us to consider the Sixth Amendment implications of law enforcement contacts with high-ranking corporate executives while criminal or civil penalty proceedings are pending against the corporation that employs the executives. We conclude that such contacts violate the Sixth Amendment when criminal charges have been filed, but that law enforcement contacts of this nature do not contravene the Sixth Amendment when civil penalty proceedings are in progress."
United States. Department of Justice. Office of Legal Counsel
1994-04-15
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Whether Members of the Sentencing Commission Who Were Appointed Prior to the Enactment of a Holdover Statute May Exercise Holdover Rights Pursuant to the Statute: Memorandum for the Attorney General [April 5, 1994]
"On August 26, 1992, the President signed 'An Act to amend [28 U.S.C. § 992] to provide [that] a member of the United States Sentencing Commission whose term has expired may continue to serve until a successor is appointed or until the expiration of the next session of Congress.' […] This memorandum addresses whether members of the Sentencing Commission (Commission) who were in office at the time the holdover statute was enacted may exercise holdover rights pursuant to the statute. We first address whether Congress intended the holdover statute to apply to commissioners who were appointed prior to its enactment. The plain meaning of the holdover provision belies any claim that it does not apply equally to incumbent commissioners and to newly appointed commissioners. By its own terms, it applies to any 'voting member of the Commission whose term has expired' regardless of when the member was appointed. Only by consulting the legislative history does any ambiguity arise regarding its application to incumbent commissioners. Even then, the legislative history of the holdover provision and the presidential signing statement provide inconclusive evidence of intent. Assuming that an examination of the legislative history is appropriate, there simply is insufficient evidence to disregard the plain meaning of the holdover provision."
United States. Department of Justice. Office of Legal Counsel
1994-04-05
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Application of the Brady Act's Criminal Penalties to State or Local Law Enforcement Officers: Memorandum for the Attorney General [March 16, 1994]
"This memorandum presents our analysis of the application of the criminal penalties contained in the recently enacted Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536 (1993) ('the Act'). Specifically, we address the question whether the Act's criminal penalties apply to state or local law enforcement officers. We conclude that the Act's criminal penalties do not apply to such officials in performance of their duties under the Act."
United States. Department of Justice. Office of Legal Counsel
1994-03-16
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OCC Mortgage Lending Testing Program: Memorandum to Eugene Ludwig, Comptroller of the Currency [March 8, 1994]
"Our office has been asked to respond to your request to the Attorney General for the Justice Department's view on whether individuals who serve as 'testers' in a proposed Office of the Comptroller of the Currency ('OCC') program designed to identify discriminatory lending practices by national banks would be subject to criminal liability if, as part of the testing program, they provide false information to targeted banks. Based on our understanding of the manner in which the testing program will be conducted, we do not believe that the testers would violate any federal criminal laws. The Criminal Division of the Justice Department has advised us that it agrees with our conclusion."
United States. Department of Justice. Office of Legal Counsel
1994-03-08
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Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities: Memorandum for Lawrence F. Watson, Chief Counsel, Goddard Space Flight Center, National Aeronautics and Space Administration [March 1, 1994]
"This memorandum responds to your request of September 9, 1993, for our opinion concerning the applicability of the Emoluments Clause, U.S. Const. art. I, § 9, cl. 8, to the employment by the University of Victoria in British Columbia, Canada, of two scientists on leave without pay from the Goddard Space Flight Center (Goddard), a component of the National Aeronautics and Space Administration (NASA). We conclude that the Emoluments Clause does not apply in these cases."
United States. Department of Justice. Office of Legal Counsel
1994-03-01
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Whether the Office of the Vice President is an 'Agency' for Purposes of the Freedom of Information Act: Memorandum for Todd J. Campbell, Counsel and Director of Administration, Office of the Vice President [February 14, 1994]
"This memorandum responds to your request for the opinion of the Office of Legal Counsel as to whether the Office of the Vice President ('OVP') is an 'agency' for purposes of the Freedom of Information Act ('FOIA'), 5 U.S.C. § 552. For the reasons set forth below, we conclude that it is not. The FOIA definition of 'agency' includes an 'establishment in the executive branch of the Government (including the Executive Office of the President).' […] Relying on the conference committee report explaining the 1974 amendment to the definition, the Supreme Court has held that the term 'agency' does not cover 'the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.' […] As a threshold matter, we note that a court might decide that the OVP, which is only a small personal staff for the Vice President, does not even qualify as an 'establishment.' We believe that is a reasonable position, although the law is unsettled as to the definition of 'establishment.' There is no need to rely on that position, however, because in our opinion the following analysis, based on case law, definitively establishes that the OVP is not an 'agency.'"
United States. Department of Justice. Office of Legal Counsel
1994-02-14
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Denial of Public Access to Trial Exhibits in Child Pornography Prosecutions: Memorandum for Jo Ann Harris, Assistant Attorney General, Criminal Division [February 10, 1994]
"You have asked whether courts may deny public access to exhibits entered into evidence in child pornography prosecutions. Because the privacy interests of the children depicted in such trial exhibits overcome the general presumption in favor of public access to judicial records, we conclude that prosecutors may ask courts to prohibit access to child pornography exhibits, and that courts may enter orders providing this type of relief."
United States. Department of Justice. Office of Legal Counsel
1994-02-10
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Responsibility for Issuing Revised Hatch Act Regulations: Memorandum for James A. Kahl, Deputy Special Counsel, Office of Special Counsel [February 2, 1994]
"You have asked whether the Office of Personnel Management ('OPM') or the Office of Special Counsel ('OSC') 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'), […] OPM contends that OSC has plenary authority to issue Hatch Act regulations, whereas OPM is empowered to promulgate Hatch Act regulations only on two narrowly-defined subjects. 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 OPM'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 regulations explicating the Hatch Act as amended."
United States. Department of Justice. Office of Legal Counsel
1994-02-02
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Reconsideration of Prior Opinion Concerning Land-Grant Colleges: Memorandum for James S. Gilliland, General Counsel, Department of Agriculture [December 23, 1993]
"This responds to your request that this Office reconsider our opinion that West Virginia may designate West Virginia State College (State College) as the beneficiary of appropriated funds under the Second Morrill Act, Act of August 30, 1890, ch. 841, 26 Stat. 417 (codified as amended at 7 U.S.C. §§ 321-326, 328), and that, upon such designation, State College would become eligible to receive appropriated funds for agricultural research and extension under 7 U.S.C. §§ 3221, 3222, and 3223. After reviewing the matter once more, we hereby withdraw our original opinion in favor of the revised views expressed in this memorandum. As explained below, we adhere to our earlier conclusion that West Virginia may validly designate State College as the beneficiary of appropriated funds under the Second Morrill Act. We reverse, however, our original conclusion that West Virginia's designation of State College as a Second Morrill Act beneficiary made that school eligible for funds appropriated pursuant to 7 U.S.C. §§ 3221, 3222, 3223 and similar statutes. (Following the usage of Agriculture, we shall refer to these statutes collectively as the '1890 derivative statutes.') Rather, we conclude that State College is not eligible for funds under the 1890 derivative statutes."
United States. Department of Justice. Office of Legal Counsel
1993-12-23
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Admissibility of Alien Amnesty Application Information in Prosecutions of Third Parties: Memorandum for the Inspector General, Department of Justice [December 22, 1993]
"This memorandum responds to your request for our legal opinion on whether the confidentiality provisions of 8 U.S.C. § 1255a(c)(5) bar Justice Department prosecutors from introducing evidence consisting of information submitted as part of an illegal alien's application for amnesty in a criminal prosecution of a third party. We conclude that (1) the introduction of such evidence is generally barred under the plain language of the statute but (2) it is not barred by the statute in the prosecution of third parties for crimes (e.g., the acceptance of a bribe by a government official for approving a false amnesty application) that facilitate or are closely related to the false amnesty application violations covered by 8 U.S.C. § 1255a(c)(6). It should also be noted that a defendant who is not himself the alien whose amnesty application file is used in violation of the statute would not likely have standing to move for suppression of (c)(5) information. However, Justice Department use of amnesty application information is also subject to a specific regulation promulgated by INS, and that regulation limits use against third parties to the prosecution of persons who have 'created or supplied a false writing or document for use in [an amnesty application].' 8 C.F.R. § 245a.2(t)(3), (4) (1993). We believe that language would generally allow use of (c)(5) material to prosecute INS employees who take bribes to approve false amnesty applications, based on the reasoning that such an employee participates in the creation of falsified documents used in an amnesty application."
United States. Department of Justice. Office of Legal Counsel
1993-12-22
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Clarification of Prior Opinion Regarding Borrowing by Bank Examiners: Memorandum for the General Counsel, Board of Governors, Federal Reserve System [December 20, 1993]
"This responds to your request that we clarify an aspect of an opinion previously issued by this Office respecting 18 U.S.C. § 213, which prohibits a bank examiner from borrowing from any Federal Reserve member bank or other covered entity that he examines, or any person connected therewith. See 'Memorandum Opinion for the Secretary of the Board, Federal Reserve Board', 6 Op. O.L.C. 509 (1982) ('1982 opinion'). Specifically, you have asked us whether footnote 8 from that opinion should be construed to mean that 18 U.S.C. § 213 prohibits bank examiners from receiving loans or credit from affiliates of member banks that they have examined in all cases where such affiliates are under 'common control' with the bank, or where the two entities have a common majority of corporate officers or directors. We conclude that such a construction is not required by the statute, except where the affiliated bank is serving as a conduit or 'front' for the implementation of a loan that is actually being extended due to the direction, instigation, or influence of the member bank or person connected therewith."
United States. Department of Justice. Office of Legal Counsel
1993-12-20
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Authority to Pay State and Local Taxes on Property After Entry of an Order of Forfeiture: Memorandum for Cary H. Copeland, Director and Chief Counsel, Executive Office for Asset Forfeiture, and James Knapp, Deputy Director, Asset Forfeiture Office, Criminal Division [December 9, 1993]
"You have requested advice on two matters: a proposed Directive from the Executive Office for Asset Forfeiture ('Directive') that would authorize payment of state and local taxes on some civilly forfeited property for which the court had notice of a state or local tax claim before the court entered an order of forfeiture, and a draft Memorandum from the Asset Forfeiture Office, Criminal Division, to the Attorney General ('AG Memo') concluding that the Attorney General may pay state and local taxes on criminally forfeited property (and proposing an Attorney General Order to delegate such authority to the Director of the Asset Forfeiture Office). The proposed Directive and the draft AG Memo both raise the question of the Attorney General's discretionary authority to pay taxes, for the period from the offense giving rise to forfeiture to the entry of an order of forfeiture, on property for which a court has already entered an order of forfeiture. […] We now conclude that payment of taxes on civilly forfeited property on the terms set forth in the proposed Directive would not be inconsistent with the civil forfeiture statute and would not exceed the Attorney General's equitable discretion under the civil forfeiture laws. We also conclude that payment of taxes on criminally forfeited property in the circumstances apparently envisioned by the draft AG Memo would not be unlawful under the criminal forfeiture laws or beyond the Attorney General's equitable, discretionary authority under such laws. In addition, we describe revisions to the draft AG Memo necessary to assure accuracy in its description of OLC [Office of Legal Counsel] advice."
United States. Department of Justice. Office of Legal Counsel
1993-12-09
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Applicability of Executive Order No. 12674 to Personnel of Regional Fishery Management Councils: Memorandum to Ginger Lew, General Counsel, Department of Commerce [December 9, 1993]
This memorandum responds to your request for our opinion whether Executive Order No. 12674, 3 C.F.R. 215 (1989 Comp.) (Order), and the regulations implementing it apply to officials of the Regional Fishery Management Councils (Councils) established under the Magnuson Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1882 (Magnuson Act or FCMA). The officials in question are the Council members appointed by the Secretary of Commerce (Secretary) and the Councils' executive directors and administrative employees. We conclude that, under the unusual statutory scheme of the Magnuson Act, appointed Council members and the other Council personnel under consideration are not Executive Branch 'employees' subject to the Order."
United States. Department of Justice. Office of Legal Counsel
1993-12-09
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Constitutionality of Vesting Magistrate Judges with Jurisdiction Over Asset Forfeiture Cases: Memorandum to Stef Cassella, Deputy Director, Policy and Litigation, Asset Forfeiture Office [December 6, 1993]
"You have asked whether Congress may constitutionally enact a statute requiring that asset forfeiture cases involving property valued below a certain level be heard by a United States Magistrate Judge rather than a United States District Judge. The limitations imposed by Article III forbid Congress to assign jurisdiction over such cases to a Magistrate Judge without the assent of the parties. Therefore, we must advise you that the provision you have described would be unconstitutional."
United States. Department of Justice. Office of Legal Counsel
1993-12-06
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Whether Missouri Municipalities May Tax the Portion of Federal Salaries Voluntarily Contributed to the Thrift Savings Plan: Memorandum for James S. Gilliland, General Counsel, Department of Agriculture [November 10, 1993]
"You have requested our opinion on the following question: must the National Finance Center ('NFC') of the Department of Agriculture ('USDA') withhold and remit local earnings taxes levied by the municipalities of St. Louis and Kansas City, Missouri, upon that portion of federal employees' salaries voluntarily contributed to the Thrift Savings Plan ('TSP')? The Financial Management Service ('FMS') of the Department of the Treasury ('Treasury') has taken the position that NFC should not withhold the Kansas City earnings taxes on TSP contributions of FMS employees because similar payments made by municipal employees are not subject to the earnings tax. As we explain in further detail below, we disagree with this approach because TSP contributions, which are held in trust for the contributors, can be distinguished from the deferred compensation plan payments that are exempt -- by a court ruling -- from earnings taxes. Thus, intergovernmental tax immunity does not preclude the Missouri municipalities from levying an earnings tax on voluntary TSP contributions. The St. Louis and Kansas City earnings taxes should be withheld and remitted."
United States. Department of Justice. Office of Legal Counsel
1993-11-10
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Legal Significance of Presidential Signing Statements: Memorandum for Bernard N. Nussbaum, Counsel to the President [November 3, 1993]
"This memorandum provides you with an analysis of the legal significance of Presidential signing statements. It is addressed to the questions that have been raised about the usefulness or validity of a such statements. We believe that such statements may on appropriate occasions perform useful and legally significant functions. These functions include (1) explaining to the public, and particularly to constituencies interested in the bill, what the President believes to be the likely effects of its adoption, (2) directing subordinate officers within the Executive Branch how to interpret or administer the enactment, and (3) informing Congress and the public that the Executive believes that a particular provision would be unconstitutional in certain of its applications, or that it is unconstitutional on its face, and that the provision will not be given effect by the Executive Branch to the extent that such enforcement would create an unconstitutional condition. These functions must be carefully distinguished from a much more controversial -- and apparently recent -- use of Presidential signing statements, i.e., to create legislative history to which the courts are expected to give some weight when construing the enactment. In what follows, we outline the rationales for the first three functions, and then consider arguments for and against the fourth function. The Appendix to the memorandum surveys the use of signing statements by earlier Presidents and provides examples of such statements that were intended to have legal significance or effects."
United States. Department of Justice. Office of Legal Counsel
1993-11-03
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Constitutionality of Health Care Reform: Memorandum for Attorney General Janet Reno and Associate Attorney General Webster L. Hubbell [October 29, 1993]
"The Health Security Act creates for all citizens the security that health care coverage will always be available to them. It accomplishes this by building on the existing American system for providing health care, which largely operates through employers. Much of the system will be administered by the states, which will have primary responsibility to ensure that regional health alliances are established, to certify accountable health plans, and to provide mechanisms to resolve complaints and disputes. This legislation is well within the long-recognized authority of the federal government. It is fair to say that, just as the substantive contents of the legislation draw on existing models and approaches to health care delivery and financing, the structure, processes and mechanisms the legislation uses to accomplish its substantive objectives draw on already existing and validated techniques that the national government has employed on numerous other occasions. Notwithstanding the well-established legitimacy of the means that the Act employs to achieve a public purpose of paramount importance, some special interests have such financial stake in the current system that they have strong incentives to challenge the Act even on highly implausible grounds, if the consequences of doing so were to alter the ultimate design of the system even slightly in their favor."
United States. Department of Justice. Office of Legal Counsel
1993-10-29
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Applicability of the Emoluments Clause to Non-Government Members of ACUS: Memorandum for Gary J. Edles, General Counsel, Administrative Conference of the United States
"This memorandum responds to your request of July 30, 1993, which sought clarification of a portion of our April 29, 1991, letter to the Deputy Counsel to the President. Specifically, you raise two questions concerning the advice we gave on that occasion concerning the scope and application of the Emoluments Clause, U.S. Const., art. I, § 9, cl. 8. After noting that a significant number of the 101 members of the Administrative Conference (the Conference or ACUS) are lawyers in private practice, professors of law, or other experts in administrative law, you ask whether the Emoluments Clause prevents service on the Conference by private individuals who receive a partnership distribution from his or her firm that may include income received by the firm from a foreign government solely because of the pooling of partnership revenues. Further, you ask whether the Clause prevents service on the Conference by a private individual who receives payment from government-owned or controlled instrumentalities that do not engage in traditional functions -- including, but not limited to, foreign public universities."
United States. Department of Justice. Office of Legal Counsel
1993-10-28
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Liability of the United States for State and Local Taxes on Seized and Forfeited Property: Memorandum for Cary H. Copeland, Director and Chief Counsel, Executive Office for Asset Forfeiture [October 18, 1993]
"You have asked us to reconsider our opinion that property seized by and forfeited to the United States is not subject to state or local taxation for the period between the commission of the offense that leads to the order of forfeiture and the entry of the order of forfeiture. See Liability of the United States for State and Local Taxes on Seized and Forfeited Property, 15 Op. O.L.C. [Office of Legal Counsel] 85 (1991) (preliminary print) ('Harrison Memorandum'). In light of the Supreme Court's decision in United States v. 92 Buena Vista Ave., 113 S. Ct. 1126 (1993), we partially reverse our opinion. Because states and localities may not tax federal property (absent express congressional authorization), the time at which ownership of forfeited property passes to the United States and the extent of the ownership interest that passes to the United States determine whether state and local taxes are owed. In many property transactions, the time and the extent of transfer of ownership are unambiguous and independent issues. In cases of transfers of ownership under the federal forfeiture statutes, however, the answer to the question of when ownership is transferred has been a matter of dispute, and of great consequence for the extent of the interest transferred."
United States. Department of Justice. Office of Legal Counsel
1993-10-18
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Immigration Consequences of Undocumented Aliens' Arrival in United States Territorial Waters: Memorandum for the Attorney General [October 13, 1993]
"This memorandum responds to requests made by the Office of the Associate Attorney General and the General Counsel's Office of the Immigration and Naturalization Service (INS) for our views on the consequences under the Immigration and Nationality Act (INA) of an undocumented alien's arrival in United States territorial waters. Specifically, we have been asked whether undocumented aliens who have been interdicted within United States territorial waters are entitled to an exclusion hearing under section 236 of the INA. We have also been asked to review the INS's enforcement authority under INA section 287, and to assess the INS's recent interpretive regulation, 57 Fed. Reg. 47,257 (1992), codified at 8 C.F.R. § 287 (1993), insofar as it purports to define the 'external boundaries' of the United States under INA section 287. We understand that resolution of these issues is of some urgency because the United States has been interdicting, within its territorial waters, vessels transporting large numbers of undocumented aliens seeking admission into the United States from various foreign countries. These activities have raised the question whether the United States must provide exclusion proceedings for such aliens. Agencies represented on the Working Group on Ocean Policy and the Law of the Sea, in particular the State Department and the United States Coast Guard, have expressed an interest in the issues. We have therefore invited, and received, the views of the State Department and the Coast Guard."
United States. Department of Justice. Office of Legal Counsel
1993-10-13
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Evaluation of the Handling of the Branch Davidian Stand-Off in Waco, Texas, February 28 to April 19, 1993 [Redacted]
From the Introduction: "This is a critical retrospective evaluation of the activities of the United States Department of Justice ('Department') and the Federal Bureau of Investigation ('FBI') during the fifty-one day stand-off at the Branch Davidians' Mt. Carmel compound near Waco, Texas which ended on April 19, 1993 when fire consumed the compound, killing David Koresh and most of his followers. To make this evaluation, I have reviewed the procedures followed by the Department and the FBI, giving particular attention to the means employed, the alternatives considered and the decisions made in attempting to resolve the stand-off."
United States. Department of Justice
1993-10-08
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Report to the Deputy Attorney General on the Events at Waco, Texas: February 28 to April 19, 1993
"What follows is an attempt to explain what actually happened at the Branch Davidian compound between the arrival of the FBI on February 28, and the aftermath of the fire that occurred on April 19. As of the date of this report, the federal trial of the 12 individuals charged with the responsibility for the incidents in Waco has not yet occurred. Therefore, it can be anticipated that many additional facts will come out at trial which are not contained in this report. Nevertheless, we believe this report to be accurate and based upon solid evidentiary grounds; we expect additional details to be revealed at trial. This report has been prepared with the cooperation of literally hundreds of individuals. Approximately 950 interviews were conducted, and tens of thousands of pages of documents and transcripts were read and analyzed. This underlying documentation will be made available to the public, subject to the protection of information relating to sensitive law enforcement sources and methods, and personal privacy concerns, upon the completion of the pending prosecutions in the Western District of Texas. The report begins with a brief history of the Branch Davidian sect and the teachings of David Koresh. There follows a day-by-day chronology of the relevant events during the 51-day standoff. After this chronology, the report will address in more detail numerous areas of particular interest, such as negotiation strategies, the attitudes of individuals in the compound, the decision-making process within law enforcement, the planning for the April 19 insertion of gas, and the aftermath of the fire."
United States. Department of Justice
1993-10-08
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Reimbursement for Costs of Attending Certain Banquets: Memorandum for Anthony C. Moscato, Director, Executive Office for United States Attorneys [September 23, 1993]
"You have asked for our opinion whether employees in the United States Attorneys' offices may be reimbursed for the cost of attending retirement banquets for state officials. Your inquiry focuses on the Opinion of the Comptroller General in Richard W. Held, B-249249 (Dec. 17, 1992), which concluded that the cost of an FBI official's attending such a banquet is properly reimbursable. We believe that the Comptroller General's holding was correct and would be applicable to an employee of a United States Attorney's Office attending the same kind of event under like circumstances. However, we caution that application of the Held ruling should be carefully limited to closely similar factual circumstances, where the nature of the ceremonial event in question provides good reason to believe that the official or employee's attendance advances the office's authorized functions."
United States. Department of Justice. Office of Legal Counsel
1993-09-23
