Opinions
Legal Authorities Available to the President to Respond to a Severe Energy Supply Interruption or Other Substantial Reduction in Available Petroleum Products
The following memorandum, prepared for the President for transmission to Congress in accordance with the direction in § 3 of the Energy Emergency Preparedness Act of 1982, describes in comprehensive fashion the authorities available to the President under existing statutes to respond to a severe energy supply shortage or interruption. It sets forth the legal basis for certain specific emergency preparedness activities, discusses the scope of each available emergency authority, and analyzes the differing threshold standards for activation of the President’s authority under each of the statutes involved.
Applicability of the Uniform Relocation Assistance Act to the Community Development Block Grant Program
The Uniform Relocation Assistance and Real Property Acquisition Act (URA), which authorizes compensation for persons displaced by federally funded urban redevelopment, applies to the projects funded out of the Community Development Block Grant (CDBG) program, as amended by the Omnibus Budget Reconciliation Act of 1981.
The statutory language and legislative history of the Housing and Community Development Act of 1974 indicate that Congress intended the URA to apply to grants made under authority of that law, including grants under the CDBG program. Administrative practice and legislative consideration of the CDBG program since 1974 reflect that intention. The amendments made to the CDBG program by the Omnibus Budget Reconciliation Act of 1981 simplified the CDBG program and reduced the level of federal involvement; however, these amendments make no explicit reference to the URA and are not inconsistent with continued application of the URA. Therefore, they cannot be said to affect the continuing applicability of the URA to community development block grants.
Procedures for Investigating Allegations Concerning Senior Administration Officials
A proposal whereby personnel from one agency’s Office of Inspector General would conduct an investigation of allegations of non-criminal misconduct by employees of another agency, or by the head of another agency, and report to the President’s Council on Integrity and Efficiency, is of questionable legality.
The President has inherent authority to supervise and direct the performance of his appointees in office, and to investigate allegations of possible misconduct related to that performance.
Under the Inspector General Act, an Inspector General and his staff are authorized to conduct investigations into allegations of misconduct only when those allegations involve fraud and abuse in the programs and operations of the particular agency in which the office is located.
An agency head has authority to investigate allegations of misconduct against any officer or employee of his agency, including the agency’s Inspector General. If under the circumstances he deems it prudent, an agency head may request that investigative personnel be detailed from another agency on a reimbursable basis to conduct such an investigation, though in such a case the investigative authority of any such detailed personnel could not exceed his own.
Constitutionality of Statute Requiring Executive Agency to Report Directly to Congress
Statute requiring the Administrator of the Federal Aviation Administration (FAA) to transmit concurrently to Congress any budget information and legislative recommendations that are transmitted to the Secretary of Transportation, the Office of Management and Budget (OMB), and the President, would, if interpreted strictly, on its face violate the constitutional principle of separation of powers.
Separation of powers requires that the President have ultimate control over subordinate officials who perform purely executive functions, which includes the right to supervise and review the work of such officials; this principle, coupled with the constitutional protection afforded the deliberative process within the Executive Branch, creates an area of executive prerogative that may not be invaded by a coordinate branch of government absent a very compelling and specific need.
Disclosure to Congress of unreviewed recommendations by subordinates within the Executive Branch would disrupt the normal interchange between agency heads and the President in connection with the decisionmaking process, and interfere with the President’s ability to supervise the actions of his subordinate officials while this process is going on, thus adversely affecting the President’s ability to carry out his responsibilities.
Because there appears to be no specific or compelling congressional need for the information at issue in this case, the concurrent reporting requirement can and should be construed so as to avoid constitutional infirmity, by allowing the FAA Administrator to provide Congress with budget data and legislative comments only after they have been approved by the Administrator’s superiors in the Executive Branch, including, where appropriate, the President and OMB.
Acceptance of Legal Fees by United States Attorney
United States Attorney would be prohibited by 18 U.S.C. § 205(1) from accepting an attorney’s fee generated in a case that he handled while in private practice, if the lawsuit were determined to constitute a claim against the United States, and if his interest in the fee was of a contingent nature at the time he began government service.
Whether a matter in litigation constitutes a claim against the United States for purposes of 18 U.S.C. § 205 depends not upon whether the United States is a plaintiff or defendant, but upon whether the United States has a significant monetary interest at stake in the lawsuit.
Information Sharing Between Supervisory Agencies Under the Right to Financial Privacy Act of 1978
The Office of the Comptroller of the Currency (OCC) may make available to the Federal Deposit Insurance Corporation (FDIC), in its capacity as a receiver of a failed national bank, OCC examination reports on that bank, notwithstanding the general prohibitions on disclosure in the Right to Financial Privacy Act of 1978. Such disclosure falls within two exceptions in that Act for information exchanges between government “supervisory” agencies, whether or not the FDIC is actually performing a “supervisory” function in its capacity as a receiver. 12 U.S.C. § 3412(d) and (e).
Constitutionality of Committee Approval Provision in Department of Housing and Urban Development Appropriations Act
Provision for prior congressional committee approval of an executive officer’s exercise of statutory authority is an unconstitutional legislative veto, and is of no legally binding effect. Accordingly, such a provision in the Department of Housing and Urban Development (HUD) appropriations act cannot operate to prohibit the Secretary of HUD from undertaking certain otherwise authorized actions in connection with a planned departmental reorganization.
Recess Appointments Issues
The following memorandum reviews a number of legal and constitutional issues relating to the President’s power to make appointments during a recess of the Senate, concluding that there have been no developments which call into question the conclusions of a 1960 Attorney General opinion, 41 Op. Att’y Gen. 463. It also contrasts the language, effects and purposes of the Pocket Veto and Recess Appointments Clauses.
Authority of Military Investigators to Request Search Warrants Under Rule 41
There is no legal impediment to the Attorney General’s amending 28 C.F.R. § 60.2(g) to add military members of Department of Defense investigative agencies to the list of law enforcement officers authorized to seek and execute search warrants pursuant to Rule 41 of the Federal Rules of Civil Procedure.
The Posse Comitatus Act does not prohibit the issuance of search warrants to military investigators engaged in the enforcement of the Uniform Code of Military Justice (UCMJ), since that statute only restricts military involvement in civilian law enforcement activities.
Military investigators engaged in the enforcement of the UCMJ may be regarded as “federal law enforcement officers” within the scope of Rule 41, and federal magistrates would thus be authonzed to issue civilian search warrants to them upon the appropriate amendment of 28 C.F.R. § 60.2(g).
Applicability of 21 U.S.C. § 952(a) to the Importation of Morphine Sulfate by the General Services Administration
The provision in 21 U.S C. § 952(a), which prohibits importation of certain controlled substances except in certain specified circumstances, applies to importation by the United States government.
Notwithstanding the canon of statutory construction that a law should not be read to impose new burdens on the government in derogation of its preexisting nghts and privileges, well-established and consistent administrative practice and interpretation of the coverage of 21 U.S.C. § 952(a), as well as its legislative history, indicate that that law covers importations by the United States government.