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Opinions
Application of the Hyde Amendment to the Provision of Transportation for Women Seeking Abortions
The Hyde Amendment’s prohibition barring the Department of Health and Human Services from expending covered funds for any abortion does not bar HHS from expending covered funds to provide transportation for women seeking abortions in circumstances in which HHS has the requisite statutory authority and appropriations to provide such transportation.
Intergovernmental Immunity for the Department of Veterans Affairs and Its Employees When Providing Certain Abortion Services
The rule issued by the Department of Veterans Affairs on Reproductive Health Services, 87 Fed. Reg. 55,287 (Sept. 9, 2022), is a lawful exercise of VA’s authority. States may not impose criminal or civil liability on VA employees—including doctors, nurses, and administrative staff—who provide or facilitate abortions or related services in a manner authorized by federal law, including VA’s rule. The Supremacy Clause bars state officials from penalizing VA employees for performing their federal functions, whether through criminal prosecution, license revocation proceedings, or civil litigation.
Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans
The Higher Education Relief Opportunities for Students Act of 2003, Pub. L. No. 108-76, 117 Stat. 904, grants the Secretary of Education authority to reduce or eliminate the obligation to repay the principal balance of federal student loan debt, including on a class-wide basis in response to the COVID-19 pandemic, provided all other requirements of the statute are satisfied.
Application of the Assimilative Crimes Act to Conduct of Federal Employees Authorized by Federal Law
Federal employees performing their duties in a manner authorized by federal law, while on a federal enclave within a state that criminalizes such authorized conduct, would not violate the Assimilative Crimes Act and could not be prosecuted by the federal government under that law.
Authority of a Majority of the FDIC Board to Present Items for Vote and Decision
The Chairperson of the Federal Deposit Insurance Corporation does not have the authority to prevent a majority of the FDIC Board from presenting items to the Board for a vote and decision.
Authority of the President to Prospectively Appoint a Supreme Court Justice
If the Senate votes to confirm Judge Ketanji Brown Jackson as an Associate Justice of the Supreme Court, the President may complete her appointment to the Supreme Court by signing her commission before Justice Breyer’s resignation takes effect.
Effect of 2020 OLC Opinion on Possible Congressional Action Regarding Ratification of the Equal Rights Amendment
A 2020 opinion of the Office of Legal Counsel that addressed the legal status of the proposed Equal Rights Amendment is not an obstacle either to Congress’s ability to act with respect to ratification of the ERA or to judicial consideration of questions regarding the constitutional status of the ERA.
Discretion to Continue the Home-Confinement Placements of Federal Prisoners After the COVID-19 Emergency
This Office concluded in January 2021 that, when the COVID-19 emergency ends, the Bureau of Prisons will be required to recall all prisoners placed in extended home confinement under section 12003(b)(2) of the Coronavirus Aid, Relief, and Economic Security Act who are not otherwise eligible for home confinement under 18 U.S.C. § 624(c)(2). Having been asked to reconsider, we now conclude that section 12003(b)(2) and the Bureau’s preexisting authorities are better read to give the Bureau discretion to permit prisoners in extended home confinement to remain there.
Reappointment of a Member of the National Credit Union Administration Board
A member of the National Credit Union Administration Board initially appointed to a partial term is eligible for reappointment under 12 U.S.C. § 1752a(c) regardless of whether the member’s first appointment was for the remainder of a term that became vacant mid-term or that had no prior appointee.
Ways and Means Committee’s Request for the Former President’s Tax Returns and Related Tax Information Pursuant to 26 U.S.C. § 6103(f)(1)
Section 6103(f)(1) of title 26, U.S. Code, vests the congressional tax committees with a broad right to receive tax information from the Department of the Treasury. It embodies a long-standing judgment of the political branches that the tax committees are uniquely suited to receive such information. The committees, however, cannot compel the Executive Branch to disclose such information without satisfying the constitutional requirement that the information could serve a legitimate legislative purpose.
In assessing whether requested information could serve a legitimate legislative purpose, the Executive Branch must give due weight to Congress’s status as a co-equal branch of government. Like courts, therefore, Executive Branch officials must apply a presumption that Legislative Branch officials act in good faith and in furtherance of legitimate objectives.
When one of the congressional tax committees requests tax information pursuant to section 6103(f)(1), and has invoked facially valid reasons for its request, the Executive Branch should conclude that the request lacks a legitimate legislative purpose only in exceptional circumstances. The Chairman of the House Ways and Means Committee has invoked sufficient reasons for requesting the former President’s tax information. Under section 6103(f)(1), Treasury must furnish the information to the Committee.