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Opinions
President’s Receipt of the Nobel Peace Prize
The Emoluments Clause of the Constitution does not bar the President from accepting the Nobel Peace Prize without congressional consent, because the Norwegian Nobel Committee is not a “King, Prince, or foreign State.”
The Foreign Gifts and Decorations Act does not bar the President from accepting the Nobel Peace Prize without congressional consent, because the Norwegian Nobel Committee is not a “unit of a foreign governmental authority,” an “international or multinational organization whose membership is composed of any unit of foreign government,” or an “agent or representative of any such unit or such organization.”
Applicability of Ten-Year Minimum Sentence to Semiautomatic Assault Weapons
Semiautomatic assault weapons are no longer among the firearms to which the ten-year minimum sentence in 18 U.S.C. § 924(c)(1)(B)(i) applies.
Effect of Spending Prohibition on HUD’s Satisfaction of Contractual Obligations to ACORN
Section 163 of division B (“Continuing Appropriations Resolution, 2010”) of Public Law 111-68 does not direct or authorize the Department of Housing and Urban Development to breach a pre-existing binding contractual obligation to make payments to the Association of Community Organizations for Reform Now or its affiliates, subsidiaries, or allied organizations where doing so would give rise to contractual liability.
Removability of the Federal Coordinator for Alaska Natural Gas Transportation Projects
The Federal Coordinator for the Alaska Natural Gas Transportation Projects serves at the pleasure of the President and thus may be removed at the President’s will.
Mandatory Registration of Credit Rating Agencies
The Administration’s proposal for mandatory registration of credit rating agencies—which would exempt an agency if (1) it does not provide ratings of securities in exchange for fees or other forms of compensation from the securities’ issuers; and (2) it issues credit ratings only in any bona fide newspaper, news magazine or business or financial publication of general and regular circulation—would comply with the First Amendment.
Authority of the Former Inspector General for the Federal Housing Finance Board to Act as Inspector General for the Federal Housing Finance Agency
The Federal Housing Finance Board Inspector General did not by statute automatically acquire authority to act as Inspector General for the Federal Housing Finance Agency at the time of the enactment of the Federal Housing Finance Regulatory Reform Act of 2008.
The former Federal Housing Finance Board Inspector General cannot appoint employees to the Office of Inspector General for the Federal Housing Finance Agency.
Stay of Military Commission Proceedings While Review of Detentions Is Pending
Although the meaning of the word “Review” in section 7 of Executive Order 13492 is not unambiguous, that section is best construed in light of the Order’s text and purposes in a manner that treats a review as pending as to a detainee at the Guantánamo Bay Naval Base when the detainee’s case has been referred to but not finally resolved by the process under the formal protocol that the Departments of Defense and Justice have agreed upon and promulgated for further disposition of the case.
Prioritizing Programs to Exempt Small Businesses from Competition in Federal Contracts
The Small Business Administration’s regulations governing the interplay among the Historically Underutilized Business Zone Program, the 8(a) Business Development Program, and the Service-Disabled Veteran-Owned Small Business Concern Program constitute a permissible construction of the Small Business Act.
The Small Business Act does not compel the prioritization of awards under the Historically Underutilized Business Zone Program over those under the 8(a) Business Development Program and the Service-Disabled Veteran-Owned Small Business Concern Program. The Small Business Administration’s regulations permissibly authorize contracting officers to exercise their discretion to choose among these three programs in setting aside contracts to be awarded to qualified small business concerns.
The Office of Legal Counsel’s conclusion that the Small Business Administration’s regulations are reasonable is binding on all Executive Branch agencies.
Additional Questions Concerning Use of the EINSTEIN 2.0 Intrusion-Detection System
The deployment of an intrusion-detection system known as the EINSTEIN 2.0 program on the unclassified computer networks of the Executive Branch is consistent with the federal and state laws discussed in this opinion.
Under the best reading of the statute, the EINSTEIN 2.0 program would not violate section 705 of the Communications Act, because it would fall within section 705’s exception permitting a person to “divulge” a communication through “authorized channels of transmission or reception,” which allows either the sender or the recipient of an Internet communication to convey the required authorization by consenting to a communication’s disclosure, including by clicking through an approved log-on banner or signing the computer-user agreement in order to gain access to a government-owned information system.
If section 2702(a)(3) of the Stored Communications Act applied to the EINSTEIN 2.0 program, the exception in section 2702(c)(1)(C) permitting disclosure based on “the lawful consent of the customer or subscriber” would also apply, because in this context the government, and no other party, should be understood as the “customer or subscriber” of the Internet service provider.
If a state law imposed requirements on the EINSTEIN 2.0 program exceeding those imposed by these federal statutes, it would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress and therefore be unenforceable under the Supremacy Clause of the Constitution.
Reaffirming Use of the EINSTEIN 2.0 Intrusion- Detection System to Protect Unclassified Computer Networks in the Executive Branch
Operation of the EINSTEIN 2.0 intrusion-detection system complies with the Fourth Amendment to the Constitution, title III of the Omnibus Crime Control and Safe Streets Act of 1968, the Foreign Intelligence Surveillance Act, the Stored Communications Act, and the pen-register and trap-and-trace provisions of 18 U.S.C. § 3121 et seq., provided that certain log-on banners or computer-user agreements are consistently adopted, implemented, and enforced by executive departments and agencies using the system.
Operation of the EINSTEIN 2.0 system also does not run afoul of state wiretapping or communications privacy laws, which would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress and be unenforceable under the Supremacy Clause to the extent that such laws purport to apply to the conduct of federal agencies and agents conducting EINSTEIN 2.0 operations and impose requirements that exceed those imposed by the federal statutes above.