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Opinions
Appointment of a Federal Judge to the United Nations Delegation
If this were a matter of first impression, appointing a federal judge to be a representative of the United States to the General Assembly of the United Nations would be inconsistent with the constitutional doctrines of separation of powers and independence of the judiciary. However, because of the longstanding practice of appointing federal judges to temporary office in the Executive Branch, and the absence of any explicit constitutional text, it cannot be maintained that such an appointment would be unconstitutional.
Constitutionality of Bill Creating an Office of Congressional Legal Counsel
Congressional officers representing the combined power of both houses of Congress—in contrast to officers of either house—who perform significant governmental duties must be appointed as provided in the Appointments Clause of the Constitution.
The authority to bring a civil action requiring an officer or employee of the Executive Branch to act in accordance with the Constitution and laws of the United States is an exclusive executive function that must be exercised by an executive officer who must be appointed as provided for in the Appointments Clause and be subject to the President’s unlimited removal power.
Constitutionality of Bill Establishing American Folklife Center in the Library of Congress
A bill creating an American Folklife Center in the Library of Congress would violate the separation of powers by vesting the Librarian of Congress, a congressional officer, with executive functions.
The bill would also violate the Appointments Clause by permitting certain members of the Board of Directors of the American Folklife Center to be appointed by members of Congress, the Board of Directors of the Smithsonian Institution, and the Librarian of Congress.
Constitutionality of the Federal Advisory Committee Act
Without reaching definitive conclusions, this memorandum considers three constitutional questions raised by the Federal Advisory Committee Act.
First, is it within Congress’s constitutional powers to regulate advisory committees in general and presidential advisory committees in particular?
Second, even if Congress can regulate advisory committees, may it regulate those committees giving advice to the President without violating the separation of powers?
Third, even if Congress may regulate those committees giving advice to the President, may the President except certain committees from certain regulations because of executive privilege?
FOIA Appeal from Denial of Access to FBI COINTELPRO Files Regarding Professor Morris Starsky
As a matter of administrative discretion, the Department of Justice should grant the FOIA request of an attorney for the FBI’s COINTELPRO-New Left files regarding his client, a professor at Arizona State University and an active member of the Socialist Workers Party.
FOIA Exemption (7) is technically applicable to the withheld documents. However, like all of the exemptions, Exemption (7) is only discretionary, and should not be asserted unless such action is in the public interest. Assertion of the exemption is not recommended for these documents.
Presidential or Legislative Pardon of the President
Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.
If under the Twenty-Fifth Amendment the President declared that he was temporarily unable to perform the duties of the office, the Vice President would become Acting President and as such could pardon the President. Thereafter the President could either resign or resume the duties of his office.
Although as a general matter Congress cannot enact amnesty or pardoning legislation, because to do so would interfere with the pardoning power vested expressly in the President by the Constitution, it could be argued that a congressional pardon granted to the President would not interfere with the President’s pardoning power because that power does not extend to the President himself.
Constitutionality of Legislation to Establish a Program to Prevent Aircraft Piracy
Congress may establish jurisdiction in United States courts over individuals who commit the offense of hijacking outside the territorial jurisdiction of the United States.
In most cases, state and local law enforcement officers would be authorized to make arrests for violations of the proposed aircraft piracy legislation, either because hijacking airplanes would also violate state law, or because federal law permits federal enforcement officers to delegate arrest authority to state and local law enforcement officers and state law permits state and local law enforcement officers to accept delegated arrest authority.
Presidential Authority to Require the Resignations of Members of the Civil Rights Commission
Members of the Civil Rights Commission serve at the pleasure of the President. The President may therefore require their resignations.
Implementation of Standstill Agreement Pending Approval of ABM Treaty and ICBM Interim Agreement
The Standstill Agreement, made by the President with the Soviet Union pending congressional approval of the ABM Treaty and the ICBM Interim Agreement, would not violate section 33 of the Arms Control and Disarmament Act, forbidding disarmament except by treaty or act of Congress.
The President is not precluded by contract law or authorization and appropriations legislation passed by Congress from directing the appropriate Executive Branch agencies to abide by the provisions of the arms control agreements pending their coming into force.
Authority to Use Troops to Prevent Interference With Federal Employees by Mayday Demonstrations and Consequent Impairment of Government Functions
The President has inherent constitutional authority to use federal troops to ensure that Mayday Movement demonstrations do not prevent federal employees from getting to their posts and carrying out their assigned government functions.
This use of troops is not prohibited by the Posse Comitatus Act.