The Effect of an Appropriations Rider on the Authority of the

Justice Department to File a Supreme Court Amicus Brief

A rider in the 1990 appropriations legislation for the Justice Departm ent, the Federal C om m unications C om m ission, and other agencies that provides that no funds appropriated by that 

legislation m ay be used to repeal, modify, or reexamine certain FCC policies does not forbid 

the Justice D epartm ent from filing a Suprem e C ourt am icus brief in a case in which those 

policies are at issue.

Febrary 5, 1990

Me m o r a n d u m O p i n i o n f o r t h e Ac t i n g So l i c i t o r Ge n e r a l

This responds to your request for our opinion on whether a rider in the 

Departments of Commerce, Justice, and State, the Judiciary, and Related 

Agencies Appropriations Act, 1990 (“ 1990 Appropriations Act”), Pub. L. 

No. 101-162, 103 Stat. 988 (1989) forbids the Department of Justice from 

filing an amicus brief with the Supreme Court in Metro BroadcastingInc. v. 

FCC, No. 89-453, and Astroline Communications Co. v. Shurberg Broadcasting, No. 89-700.1 For the reasons discussed below, we agree with your 

conclusion that the rider does not forbid such a filing.

I. Background

The 1990 Appropriations Act provides funding for several federal government entities, including the Department of Justice (title II), the Judiciary 

(title IV), and a variety of agencies, among them the Federal Communications Commission (title V). A rider appears in the provision of title V 

making appropriations for the Federal Communications Commission (“FCC”), 

which is also found in materially the same language in the two prior annual 

appropriations acts.2 It reads:

'See Memorandum for William P. Barr. Assistant Attorney General, Office of Legal Counsel, from 

John G. Roberts, Jr., Acting Solicitor General, Re: Use o f Departmental Appropriations to File Briefs

Amicus Curiae in Metro Broadcasting, Inc. v. FCC, No. 89-453 and Astroline Comm. Co. v. Shurberg

Broadcasting, No. 89-700 (Jan. 11, 1990) (“Roberts Memorandum”).

2 The original provision from which the current rider is derived appears in Pub. L. No. 100-202, 101 

Stat. 1329-1, 1329-31 (1987). See also Pub. L. No. 100-459, 102 Stat. 2186, 2216-17 (1988).

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[N]one of the funds appropriated by this Act shall be used to 

repeal, to retroactively apply changes in, or to continue a reexamination of, the policies of the Federal Communications 

Commission with respect to comparative licensing, distress 

sales and tax certificates granted under 26 U.S.C. 1071, to 

expand minority and women ownership of broadcasting licenses 

. . . other than to close MM Docket No. 86-484 ....

103 Stat. at 1020.

No such rider appears in title II, which appropriates funds for the Justice 

Department, not even in the “General Provisions” of that title. 103 Stat. at 

995-1006.3 Nor does any such rider appear in title IV, which appropriates 

monies for the federal courts, including the Supreme Court. Id. at 1010-16. 

Finally, no such rider appears in title VI (“General Provisions”), which sets 

forth general restrictions on the use of the funds appropriated under all of 

the preceding titles of the Act. Id. at 1031-40.

The questions of the FCC rider’s possible application to a Justice Department amicus filing initially arose in August 1988, when the Civil Rights 

Division sought permission to file an amicus brief with the Court of Appeals 

for the District of Columbia Circuit in what is now the Metro Broadcasting

case.4 Both the Civil Rights Division and the Solicitor General concluded, 

as do we here, that the rider does not prohibit amicus filings by the Department. The Solicitor General authorized Civil Rights to file an informational 

amicus brief with the court of appeals,5 and such a brief was in fact filed.6

II. AmaEysns

The FCC rider prohibits the use of “funds appropriated by this Act . . . to 

repeal, to retroactively apply changes in, or to continue a reexamination of, 

the [specified] policies of the Federal Communications Commission.” 103 

Stat. at 1021. It is clear from the language and purpose of the rider, and 

from the overall structure of the 1990 Appropriations Act, that the rider was

3 The “General Provisions" of title II do otherwise impose restrictions on the use of Justice Department 

funds. See 1990 Appropriations Act §§ 205-206, 103 Stat. at 1005 (restrictions on abortion-related use 

o f funds).

4 See M emorandum for the Solicitor General, from William Bradford Reynolds, Assistant Attorney 

General, Civil Divison, Re: Steele v. FCC and Winter Park Communications, Inc. v. FCC. Nos. 84-1176

& 85-1755 (D.C. Cir.) (July 22, 1988) (rider did not prohibit amicus filing in court of appeals); handwritten comments of the Solicitor General on Memorandum for the Solicitor General, from Thomas W. 

M errill, Deputy Solicitor General, Re: Steele v. FCC (Aug. 3, 1988) (rider did not prohibit filing of an 

“inform ational" amicus brief).

5 In his handwritten marginal comments authorizing a filing, the Solicitor General wrote that “[t]he 

argum ent relating to the appropriations rider is troublesome but I think Civil Rights has the better of it." 

He further observed that a purely “informational” filing would not “come within ten miles of the appropriation rider’s prohibition (even on its m ost expansive interpretation).”

6 See B rief fo r the United States as Amicus Curiae. Winter Park Comm., Inc. v. FCC & Metro Broadcasting, Inc. v FCC. D.C. Cir. Nos. 85-1755 & 85-1756 (Aug. 29, 1988).

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intended to impose restrictions only on the FCC, and thus does not forbid the 

filing of an amicus (or any other) brief by the Department of Justice. Even if 

this conclusion were less than clear, we would resolve any ambiguity in favor 

of this construction to avoid the very serious constitutional problems that 

would exist were the rider interpreted to prevent the Department from filing 

in the Court.

The 1990 Appropriations Act is essentially an omnibus enactment comprising a number of separate and unrelated appropriations “Acts” (titles I-V), 

and a number of general provisions that apply to all titles of the Act (title 

VI). Each of titles I-IV is expressly designated an “Act.” Id. at 995, 1006, 

1010, 1016. For example, title II, which appropriates funds for the Justice 

Department, provides that title II “may be cited as the 'Department of Justice Appropriations Act, 1990.” ’ Id. at 1006.7 With the exception of title VI, 

which for understandable reasons Congress might not separately designate an 

“Act,” title V is the only title that is not expressly designated an Act. Because it is not designated an “Act ” there is some question as to whether the 

term “this Act” in title V was intended to refer only to title V or to the entire 

1990 Appropriations Act.

We believe that title V also should be considered a separate act for the 

purpose of construing the provisions within that title, which appears to be 

the only purpose for Congress’ separate designation of titles I-IV as “Acts.” 

We can think of no substantive reason why Congress would have wanted 

title V treated any differently in this respect from titles I-IV. Indeed, it 

appears that the only reason title V may not have been designated an “Act” 

is that, unlike titles I-IV, it appropriates monies to a number of different 

federal government entities8 and, as a consequence, would not have been 

easily entitled. It follows from the fact that title V was intended to be 

understood as a separate “Act” for the same purposes that titles I-IV are to 

be so understood that the term “this Act” in the title refers only to title V, 

not to the entire 1990 Appropriations Act.9 Accordingly, we conclude that 

the expenditure restriction in the rider applies only to the FCC appropriations made in title V.10

Interpreting the rider as applicable only to the FCC is the interpretation

’ The Act provides that title I “may be cited as the 'Department of Commerce Appropriations Act, 

1990"', see 103 Stat. at 995; that title III “may be cited as the 'Department of State Appropriations Act, 

1990',” id. at 1010; and that title IV “may be cited as "The Judiciary Appropriations Act, 1990',” id. at 

1016.

•Each of titles I-IV appropriates monies for a single agency or, in the case of title IV, an entire branch 

o f government (the federal judiciary).

’ This interpretation of the term is consistent with the other uses of the term in title V. See 103 Stat. at 

1018 (Commission on the Bicentennial of the United States Constitution); id. at 1022 (Securities and 

Exchange Commission); id. at 1023 (Small Business Administration); id. at 1024 (same); id. at 1028 

(same).

10The restriction would apply to, although presumably have no practical effect on, the other agencies 

for which appropriations are made in title V.

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most consistent with the rider’s character as a proviso. Sums are appropriated “[f]or necessary expenses of the Federal Communications Commission 

. . . Provided!” that the rider’s terms are observed. 103 Stat. at 1020. While 

it would be possible to read the provision as conditioning the FCC appropriations on Commerce, Justice, State and other agency compliance with the 

terms of the rider, clearly the most natural reading of the proviso is as a 

condition only on the immediately preceding appropriation to the FCC. It 

would be odd indeed for Congress to condition one agency’s appropriations 

on compliance by other agencies with enacted prohibitions. This is especially the case where, as here, the other agencies have no apparent authority 

to engage in the prohibited activities.

The legislative history confirms that Congress intended the rider to apply 

only to the FCC. The Senate Report on the bill that first included the rider 

explains the purpose of the rider as follows:

The Committee has inserted a provision in the bill which 

bars the Federal Communications Commission from expending funds to repeal, retroactively restrict, or continue a pending 

reexamination of, longstanding rules to promote the ownership of broadcasting licenses by minority group members and 

women. The FCC has commenced an inquiry, In the Matter 

of Reexamination of the Commission’s Comparative Licensing, Distress Sales and Tax Certificate Policies Premised on 

Racial, Ethnic or Gender Classifications, MM Docket No. 86- 

484, which calls into question the advisability and legality of 

these rules.

The Committee believes the inquiry is unwarranted ....

S. Rep. No. 182, 100th Cong., 1st Sess. 76 (1987) (emphasis added) (“Senate Report”). The report continues with instructions to the FCC to close 

MM Docket No. 86-484, and to resolve within sixty days certain proceedings that had been either remanded by the District of Columbia Circuit 

Court of Appeals — including the Shurberg case — or held in abeyance 

pending the outcome of the FCC’s rulemaking, “in a manner consistent with 

the policies that mandated incentives for minorities and women in broadcast 

ownership.” Id. at 77.

These passages make clear that the purpose of the rider was to prevent 

the FCC from using its appropriated funds to continue the then-pending 

FCC administrative proceeding reexamining the minority and gender preference policies11 or, at most, to prevent the FCC from conducting any such 

reexamination in the future. The rider even identifies by docket number

11 The FCC’s rulemaking followed a request by the FCC to the D.C. Circuit — before which a constitutional challenge to the FCC’s comparative licensing gender preference policy was pending — to permit 

the agency to reexamine its preferences. See Race and Gender Preferences, 1 F.C.C. Red 1315 (1986)

Continued

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(MM Docket No. 86-484) and, almost verbatim, the title of the specific FCC 

rulemaking (or “reexamination”) with which it was concerned.12

The structure of the 1990 Appropriations Act also supports the conclusion 

that Congress did not intend the rider as a restriction on the use of all funds 

appropriated in the 1990 Appropriations Act. If Congress intended to apply 

the rider’s restrictions to all of the federal entities, presumably it would have 

inserted language of restriction in the respective titles—each of which includes other restraints on the use of the appropriated monies—or, more likely, 

in title VI, a catch-all section that includes provisions limiting the use of 

funds appropriated in any of the earlier titles. Neither titles I-IV nor title VI 

contains any restriction substantively similar to that in the rider.

Even assuming that the rider extends to the funds appropriated to the 

Department of Justice, we do not believe that filing an amicus brief would 

be prohibited. The rider only prohibits the expenditure of funds “to repeal, 

to retroactively apply changes in, or to continue a reexamination o f’ the 

specified FCC policies. The Department of Justice does not even have the 

power to “repeal” or to “apply changes in” an FCC policy. That administrative power rests in the FCC and, through legislation, Congress.

Nor, we think, can the filing of an amicus (or any other) brief be regarded 

as “continufing] a reexamination” of the FCC policies at issue.13 First, read 

in the context of the immediately preceding proscriptions on “repeal” and 

“changes in” the FCC policies, the term “continu[ing] a reexamination” is

" (...continued)

(MM Docket No: 86-484), modified, 2 F.C.C. Red 2377 (1987). The FCC had sought this reexamination 

in part because of its opinion at that time that both the racial and the gender preferences were unconstitutional. See B rief fo r the Federal Communications Commission on Rehearing En Banc in Steele v. FCC,

D.C. Cir. No. 84-1176. The FCC was engaged in preparing findings in the rulemaking when Congress 

decided to abort the proceedings. In obedience to Congress’ directive, the FCC closed the rulemaking 

and reinstituted the preferences on January 14, 1988. See FCC 88-17.

"T here is no suggestion in either the text or legislative history of the subsequently-enacted riders that 

Congress’ purposes for including the rider in the FCC appropriation has changed since the rider was 

first enacted in 1987. See S. Rep. No. 144, 101st Cong., 1st Sess. 86 (1989) (Committee “recommends 

retention” of provisos enacted previously); S. Rep. No. 388, 100th Cong., 2d Sess. 79 (1988) (Committee has "continued language from previous appropriations acts with regard to . . . minority and women 

ownership of broadcasting licenses”).

13 Arguably, no expenditure made after closure of the rulemaking proceeding in MM Docket No. 86- 

484 by any of the federal entities for which appropriations were made in the 1990 Appropriation Act 

could run afoul of this portion of the rider’s prohibition. The rider could fairly be interpreted to prohibit 

only the expenditure of funds to continue the particular “reexamination” of the FCC policies then in 

progress in MM Docket No. 86-484, which was closed on January 14, 1988. See, e.g., S. Rep. No. 182 

at 76 (rider inserted to prohibit expenditures to “continue a pending reexamination" of the FCC policies 

(emphasis added)). If the rider were so interpreted, it would not prohibit a new “reexamination” o f the 

policies.

Congress clearly understood and appreciated the difference between beginning a reexamination and 

continuing a reexamination of a particular matter, as evidenced by its prohibition in the same appropriations act of expenditures “to repeal, to retroactively apply changes, or to begin or continue a reexamination of the rules and policies established to administer such rules of the Federal Communications 

Commission as set forth at section 73.3555(c) of title 47 of the Code of Federal Regulations.” See 103 

Stat at 1021 (emphasis added).

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best understood to refer only to administrative reexamination of the policies.14 A court does not examine policies qua policies; it reviews the legality 

of the policies. Thus, while the prohibition might prevent commencement 

of a new administrative inquiry into the wisdom (or even the legality) of the 

agency’s racial and gender preference policies, we do not believe it would stand 

as a bar to a legal challenge to those policies before the courts of law.15

Second, even if the rider were interpreted to extend to challenges in a 

judicial forum, we do not believe that the filing of a brief once the Court has 

decided to hear a challenge entails the use of funds “to continue a reexamination” of the FCC policies. The Court perhaps expended funds to continue 

the reexamination by docketing the cases, and will continue to do so by 

retaining the case on its docket for briefing, argument and disposition. With 

certiorari granted, however, the Department would only be expending funds 

to participate in a “reexamination” that has already been continued; it would 

not be expending funds “to” continue a reexamination. The reexamination, 

if that it be, see discussion infra, is underway and will continue, whether or 

not the Department participates. The Department fully complied with the 

terms of the prohibition (assuming that it applies) by opposing the grant of 

certiorari.

Finally, the Supreme Court’s review of these cases would not properly be 

considered a “reexamination” of the FCC policies because the Court has 

never previously examined these policies. One could argue that any second 

and successive examination constitutes a “reexamination” because the FCC 

has already once examined them. We believe, however, that the better reading of the rider (regardless to whom it applies) is as a prohibition on a 

second and successive examination by the same entity. This especially would 

seem to be the better interpretation, given that the prohibition is against 

“continuing” a reexamination, not merely reexamining, the specified policies. One does not ordinarily think of a second body “continuing” a 

reexamination begun by another body. Of course, this interpretation finds 

substantial support in the legislative history. See discussion supra at 16.

For the aforementioned reasons, we believe it is clear that Congress did 

not intend the rider to serve as a limitation on Department of Justice expenditures. Even if Congress’ intent were less than clear, however, we would

14 In the Senate Report accompanying the first appropriations bill to which the rider was attached, the 

Committee instructed the FCC to resolve certain pending cases in a manner consistent with the FCC’s 

racial and gender preference policies. S. Rep. No. 182 at 77. The Committee’s instruction identifies 

the cases to which it refers as ones w hich had been either remanded to the FCC by the District of 

Colum bia Circuit Court of Appeals, or held in abeyance by the FCC pending reexamination of its 

policies. The Committee thus merely instructed the FCC to apply the racial and gender preference 

policies in administrative adjudication, which is consistent with our view that the rider was directed 

only at administrative actions that might lead to reversal of the specified FCC policies.

13 Indeed, if the prohibited “reexamination” of FCC's policies bars a Justice Department legal challenge 

to those policies, it would also preclude judicial review of those policies, since the federal judiciary is 

funded by title IV o f the Act, and would be subject to the same restrictions in the rider. Apart from the 

serious constitutional issue that would be presented by a provision purporting to prevent constitutional 

challenges to a law, see, e.g., Webster v. Doe, 486 U.S. 592, 603 (1988), it would be extraordinary to 

construe a provision to prevent judicial review sub silentio.

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interpret the rider to permit an amicus filing so as to avoid the serious constitutional problems, see NLRB v. Catholic Bishop, 440 U.S. 490 (1979), that 

would otherwise exist. A statute that purported to prohibit the Executive from 

filing an amicus or other brief on the constitutionality of federal agency action or 

policy would raise the most serious constitutional concerns.16

The President is constitutionally required to take care that the laws, including the Constitution, be faithfully executed. See U.S. Const, art. II, § 3. 

Before entering office, the Constitution requires that he “solemnly swear” 

that he will “to the best of [his] Ability, preserve, protect and defend the 

Constitution of the United States.” Id. art. II, § 1, cl. 8. The filing of briefs 

in courts of law through his subordinates—particularly as such filings may 

bear on the legality of action taken by Executive departments or agencies— 

is integral to the discharge of his constitutional duty to see that the laws are 

faithfully executed. As a consequence, while the question never has been 

and may never be litigated, it is doubtful that Congress, through exercise of 

its appropriations power or otherwise, could ever prevent the Executive from 

advancing before the courts a particular view of the constitutionality of an 

Executive agency action or policy.

CONCLUSION

For the foregoing reasons, we conclude that the 1990 Appropriations Act 

does not bar the Department of Justice from filing an amicus brief with the 

Supreme Court in the Metro Broadcasting litigation.

J. MICHAEL LUTTIG 

Principal Deputy

Assistant Attorney General

Office o f Legal Counsel

'‘ Interpreting the rider so that it would extend to the Department of Justice would result in its application to the judiciary, as well. Application of the rider to prohibit the judiciary from expending any o f its 

appropriated funds "to continue a reexamination” of the FCC policies would raise separate, but equally 

serious, constitutional questions.

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