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Opinions
Authority of the Deputy Attorney General Under Executive Order 12333
The Deputy Attorney General has authority to approve searches for intelligence purposes under section 2.5 of Executive Order 12333.
Application of 18 U.S.C. § 208 to Trustees of Private Trusts
Although a trustee of a private trust, solely by virtue of his capacity as a trustee, should not be deemed to have a personal financial interest in the property of the trust, a trustee of a private trust may have such an interest under certain circumstances. Further, a trustee of a private trust also should be considered to be serving in the capacity of a “trustee” of an “organization” for purposes of 18 U.S.C. § 208(a).
Duration of the Term of a Member of the Civil Rights Commission
A member of the Civil Rights Commission, appointed when a predecessor died before the end of his term, serves only the remainder of her predecessor’s term.
Disclosure of Conflicts of Interest of Members of FDA Advisory Panels
Special government employees who serve as members of a Food and Drug Administration advisory panel and who seek waivers of conflicts of interest must publicly disclose any conflicts of interest they may have that relates to the work to be undertaken by the panel. The FDA may not waive a panel member’s conflict until the panel member makes the public disclosure.
The FDA has considerable discretion to determine how detailed the panel member’s disclosure must be, so long as such disclosure is adequate to inform the public of the nature and magnitude of the conflict.
Checking Names of Prohibited Persons Against Records in the NICS Audit Log Concerning Allowed Transfers
The Federal Bureau of Investigation may check whether names of individuals known to be prohibited from purchasing a firearm under 18 U.S.C. § 922(g)(5) appear in records concerning allowed transfers in the audit log of the National Instant Criminal Background Check System in the course of auditing the performance of the NICS, and may share the results of such searches with the Bureau of Alcohol, Tobacco, and Firearms.
The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them
The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001.
The President has constitutional power not only to retaliate against any person, organization, or state suspected of involvement in terrorist attacks on the United States, but also against foreign states suspected of harboring or supporting such organizations.
The President may deploy military force preemptively against terrorist organizations or the states that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.
Post-Employment Restriction of 12 U.S.C. § 1812(e)
A Director of the Office of Thrift Supervision who resigns at the President’s request is not subject to the two-year restriction, under 12 U.S.C. § 1812(e), against working for an insured depository institution or a depository institution holding company.
The President’s Authority to Make a Recess Appointment to the National Labor Relations Board
The President may make a recess appointment to the National Labor Relations Board of a person whose term as a Senate-confirmed member expired during the current recess of the Senate.
Designation of Acting Associate Attorney General
Phil Perry, who has already been designated as the first assistant to the office of the Associate Attorney General by virtue of his appointment as the Principal Deputy Associate Attorney General, may, consistent with the Vacancies Reform Act of 1998, serve as the Acting Associate Attorney General even though he was not the first assistant when the vacancy occurred.
Because the President has not designated another person as the Acting Associate Attorney General under the Vacancies Reform Act, Mr. Perry, as the Principal Deputy, is required to perform the functions and duties of the office of the Associate Attorney General in an acting capacity.
The President’s Authority to Remove the Chairman of the Consumer Product Safety Commission
The Chairman of the Consumer Product Safety Commission serves at the pleasure of the President and the President has the constitutional authority to remove her for any reason.