### MUTUAL CONSENT PROVISIONS IN THE GUAM COMMONWEALTH LEGISLATION

Sections of the Guam Commonwealth Bill requiring the mutual consent of the Government of the United States and the Government of Guam rai se serious constitutional questions and are legally unenforceable.
July 28, 1994

MEMORANDUM OPINION FOR THE SPECIAL REPRESENTATIVE FOR GUAM COMMONWEALTH

The Guam Com m onwealth Bill, H.R. 1521, 103d Cong., 1st Sess. (1993) contains two sections requiring the mu tual consent of the Governm e nt of the United States and the Governm e nt of Guam

. Section 103 provides that the Com m onwealth Act could be am ended only with mu tual consent of the two governm e nts. Section 202 provides that no Federal laws, rules, and regulations passed after the enactm e nt of the Comm onwealth Act would apply to Guam without the mu tual consent of the two governm e nts. The Representatives of Guam insist that these two sections are crucial for the autonomy and economy of Guam

. The form er views of this Office on the validity or efficacy of mu tual consent requirem e nts included in legislation governing the relationship between the federal governm e nt and non-state areas, i.e. areas under the sovereignty of the United States that are not States, 1 have not been consistent. 2 W e therefore have carefully reexam ined this issue. Our conclusion is that these clauses raise serious constitutional issues and are legally unenforceable. 3

1 Territories that have developed from the stage of a classical territory to that of a Comm onwealth with a constitution of their own adoption and an elective governor, re sent being called Territories and claim that that legal term and its im plications are not applicable to them

. W etherefore shall refer to all Territories and Comm onwealths as non-state areas under the sovereignty of the United States or briefly as non-state areas.

2 To our knowledge the first consideration of the validity of m u tual consent clauses occurred in 1959 in connection with proposals to am end the Puerto Rico Federal Relations Act. At that tim e the Departm e nt took the position that the answer to this question was doubtful but that such clauses should not be opposed on the ground that they go beyond the constitutional power of Congress. In 1963 the Departm e nt of Justice opined that such clauses were legally effective because Congress could create vested rights in the status of a territory that could not be revoked unilaterally. The Departm e nt adhered to th is position in 1973 in connection with then pending Micronesians status negotiations in a m e m o randum approved by then Assistant Attorney General Rehnquist. On the basis of this advice, a m u tual consent clause was inserted in Section 105 of the Covenant with the Northern Mariana Islands. The Departm e nt continued to support the validity of m u tual consent clauses in connection with the First 1989 Task Force Report on the Guam Comm onwealth Bill. Th e Departm e nt revisited this issue in the early 1990’s in connection with the Puerto Rico Status Referendum Bill in light of Bowen v. Agencies Opposed to Soc. Sec. Entrapment , 477 U.S. 41, 55 (1986), and concluded that there coul d not be an enforceable vested right in a political status; hence that m u tual consent clauses were ineffectiv e because they would not bind a subsequent Congress. W e took the sam e position in the Second Guam Task Force Report issued during the last days of the Bush Admi nistration in January 1993.

3 Mutual consent clauses are not a novel phenom enon; i ndeed they antedate the Constitution. Section 14 of the Northwest Ordinance contained six “articles of com p act, between the original States and the people and States in the said territory, and [shall] forever rem a in unalte rable, unless by comm on consent.” These articles were incorporated either expressly or by referen ce into m a ny early territorial organic acts. Clinton v. Englebrecht , 80 U.S. (13 W a ll.) 434, 442 (1872). The copious litigation under th ese “unalterable articles” focussed largely on the question whether the territories’ obligations under them we re superseded by the Constitution, or when the territoryOpinions of the Office of Legal Counsel

In our view, it is important that the text of the Guam Com m onwealth Act not create any illusory expectations that mi ght m i slead the electorate of Guam about the consequences of the legislation. W e mu st therefore oppose the inclusion in the Com m onwealth Act of any provisions, such as mu tual consent clauses, that are legally unenforceable, unless their unenforceability (or precatory nature) is clearly stated in the docum ent itself.
I. The Power of Congress to Govern the Non-State Areas under the Sovereignty of the United States is Plenary within Constitutional Limitations All territory under the sovereignty of the United States falls into two groups: the States and the areas that are not States. The latter, whether called territories, possessions, or com m onwealths, are governed by and under the authority of Congress. As to those areas, Congress exercises the com b ined powers of the federal and of a state governm e nt. These basic considerations were set out in the leading case of National Bank v. County of Yankton , 101 U.S. 129, 132-33 (1880). There the Court held: It is certainly now too late to doubt the power of Congress to govern the Territories. There have been som e differences of opinion as to the particular clause of the Constitution f r om which the power is derived, but that it exists has always been conceded. 4
* * * All territory within the jurisdiction of the United States not included in any State mu st necessarily be governed by or under the authority of Congress. The Territories are but political subdivisions of the outlying dominion of the United States. Their relation to the general governm e nt is mu ch the sam e as that which counties bear to the respective States, and Congress m a y legislate for them as a State does for its municipal organizations. The organic law of a Territory takes the place of a constitution as the fundam e ntal law of the local governm e nt. It is obligatory on and binds the territorial authorities; but Congress is suprem e, and for the purposes of this departm e nt of its governm e ntal authority has all the

becam e a State, as the result of the equal footing doctrine. W e have, however, not found any cases dealing with the question whether the Congress had the power to m odify any duty im posed on the United States by those articles.

4 Som e derived that power from the authority of the United States to acquire territory, others from the m e re fact of sovereignty, others from the Territory Clause of the Constitution of the United States (Art. IV, Sec. 3, Cl. 2) pursuant to which Congress has “Power to dispose of and m ake all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”. See e.g. American Insurance Co. v. Canter , 26 U.S. (1 Pet.) 511, 542 (1828); Mormon Church v. United States , 136 U.S. 1, 42-44 (1890); Downes v. Bidwell , 182 U.S. 244, 290 (1901). At present, the Territory Clause of the Constitution is generally considered to be the source of the power of Congress to govern the non-state areas. Hooven & Allison Co. v. Evatt , 324 U.S. 652, 673-674 (1945); Examining Board v. Flores de Otero , 426 U.S. 572, 586 (1976); Harris v. Rosario , 446 U.S. 651 (1980); see also Wabol v. Villacrusis , 958 F.2d 1450, 1459 (9th Cir. 1992), cert

. denied 506 U.S. 1027 (1992). (Footnote supplied.)
-2­M u tual Consent Provisions in the Guam Commonwealth Legislation powers of the people of the United States, except such as have been expressly or by implication reserved in the prohibitions of the Constitution.
Yankton was anticipated in Chief Justice Marshall’s sem i nal opinion in American Insurance Co. v. Canter , 26 U.S. (1 Pet.) 511, 542-43, 546 (1828). The Chief Justice explained:
In the m ean tim e [ i.e. the interval between acquisition and statehood], Florida continues to be a territory of the United States; governed by virtue of that clause in the Constitution, which empowers Congress “to m ake all needful rules and regulations, respecting the territory, or other property belonging to the United States.” Perhaps the power of governing a territory belonging to the United States, which has not, by becom i ng a state, acquired the m eans of self-governm e nt, m a y result necessarily f r om the f acts, that it is not within the jurisdiction of any particular state, and is within the power and jurisdiction of the United States.
* * * In legislating for them [the Territories], Congress exercises the com b ined powers of the general, and of a state governm e nt. Id. at 542-43, 546. The power of Congress to govern the non-state areas is plenary like every other legislative power of Congress but it is nevertheless subject to the applicable provisions of the Constitution. As Chief Justice Marshall stated in Gibbons v. Ogden , 22 U.S. (9 W h eat.) 1, 196 (1824), with respect to the Com m e rce Power: This power [the Com m e rce Power], like all others vested in Congress is comp lete in itself, m a y be exercised to its utm o st extent, and acknowledges no limitations, other than are prescribed in the constitution

. (Emphasis added.)
This limitation on the plenary legislative power of Congress is self-evident. It necessarily follows from the suprem acy of the Constitution. See e.g ., Hodel v. Virginia Surface Mining and Reclamation Assoc. , 452 U.S. 264, 276 (1981). That the power of Congress under the Territory Clause is subject to constitutional lim itations has been recognized in County of Yankton , 101 U.S. at 133; Downes v. Bidwell , 182 U.S. 244, 290-91 (1901); District of Columbia v. Thompson Co. , 346 U.S. 100, 109 (1953). Finally, the power of Congress over the non-state areas persists “so long as they rem a in in a territorial condition.” Shively v. Bowlby , 152 U.S. 1, 48 (1894). See also Hooven & Allison Co. v. Evatt , 324 U.S. 652, 675 (1945) (recognizing that during the interm ediary period between the establishm ent of the Comm onwealth of the Philippine Islands and the final withdrawal of United States sovereignty from those islands “Congress retains plenary power over the territorial governm e nt”). The plenary Congressional authority over a non-state area thus lasts as long as the area retains that status. It term inates when the area loses that status either by virtue of its adm i ssion

-3­Opinions of the Office of Legal Counsel as a State, or by the termination of the sovereignty of the United States over the area by the grant of independence, or by its surrender to the sovereignty of another country.
II. The Revocable Nature of Congressional Legislation Relating to the Government of Non-State Areas
W h ile Congress has the power to govern the non-state areas it need not exercise that power itself. Congress can delegate to the i nhabitants of non-state areas full powers of selfgovernm e nt and an autonomy sim ilar to that of States and has done so since the beginning of the Republic. Such delegation, however, mu st be “consistent with the suprem acy and supervision of National authority”. Clinton v. Englebrecht , 80 U.S. (13 W a ll.) 434, 441 (1872); Puerto Rico v. Shell Co. , 302 U.S. 253, 260, 261-62 (1937). The requirem e nt that the delegation of governm e ntal authority to the non-state areas be subject to federal suprem acy and federal supervision m eans that such delegation is necessarily subject to the right of Congress to revise, alter, or revoke the authority granted. District of Columbia v. Thompson Co. , 346 U.S. 100, 106, 109 (1953). 5 See also United States v. Sharpnack , 355 U.S. 286, 296 (1958), Harris v. Boreham , 233 F.2d 110, 113 (3rd Cir. 1956), Firemen’s Insurance Co. v. Washington , 483 F.2d 1323, 1327 (D.C. Cir. 1973). The power of Congress to delegate governm e ntal powers to non-state areas thus is contingent on the retention by Congress of its power to revise, alter, and revoke that legislation. 6 Congress therefore cannot subject the am endm ent or repeal of such legislation to the consent of the non-state area. This consideration also disposes of the argum ent that the power of Congress under the Territory Clause to give up its sovereignty over a non-state area includes the power to m ake a partial disposition of that authority, hence thatCongress could give up its power to am end or repeal statutes relating to the governance of non-state areas. But, as shown above, the retention of the power to am end or repeal legislation delegating governm e ntal powers to a non-state area is an integral elem ent of the delegation power

. Congress therefore has no authority to enact legislation under the Territory Clause that woul d lim it the unfettered exercise of its power to am end or repeal.
The sam e result flows from the consideration that all non-state areas are subject to the authority of Congress, which, as shown above, is plenary. This basic rule does not permit the

5 Thompson dealt with the District of Colum b ia’s governm e nt which is provided for by Art. I, Sec. 8, Cl. 17 of the Constitution, rather than with the non-state areas as to whom the Congressional power is derived from the Territory Clause. The Court, however, held that in this area the rules relating to the Congressional power to govern the District of Colum b ia and the non- state areas are identical. Indeed, th e Court relied on cases dealing with nonstate areas, e.g ., Hornbuckle v. Toombs , 85 U.S. (18 W a ll.) 648, 655 (1874), and Christianson v. King County , 239 U.S. 365 (1915), where it held that Congress can delegate its legislative authority under Art. I, Sec. 8, Cl. 17 of the Constitution to the District, subject to the power of Congre ss at any tim e to revise, alter, or revoke that authority.

6 Congress has exercised this power with respect to the District of Colum b ia. The Act of February 21, 1871, 16 Stat. 419, gave the District of Colum b ia virtual territorial status, with a governor appointed by the President, a legislative assem b ly that included an elected house of delegates, and a delegate in Congress. The 1871 Act was repealed by the Act of June 20, 1874, 18 Stat. 116, which abrogated am ong others the provisions for the legislative assem b ly and a delegate in Congress, and established a governm e nt by a Commi ssion appointed by the President.

-4­M u tual Consent Provisions in the Guam Commonwealth Legislation creation of non-state areas that are only partially subject to Congressional authority. The plenary power of Congress over a non-state area persists as long as the area rem a ins in that condition and terminates only when the area becom e s a State or ceases to be under United States sovereignty. There is no interm ediary status as far as the Congressional power is concerned.
The two mu tual consent clauses contained in the proposed Com m onwealth Act therefore are subject to Congressional m odification and repeal.
III. The Rule that Legislation Delegating Governmental Powers to a Non-State Area Must be Subject to Amendment and Repeal is but a Manifestation of the General Rule that one Congress Cannot Bind

a Subsequent Congress, Except where it Creates Vested Rights Enforceable under the Due Process Clause of the Fifth Amendment The rule that Congress cannot surrender its power to am end or repeal legislation relating to the governm e nt of non-state areas is but a speci fic application of the m a xim that one Congress cannot bind a subsequent Congress and the case law developed under it. The rationale underlying that principle is the consideration that if one Congress could prevent the subsequent am endm ent or repeal of legislation enacted by it, such legislation would be f r ozen perm anently and would acquire virtually constitutional status. Justice Brennan expressed this thought in his dissenting opinion in United States Trust Co. v. New Jersey , 431 U.S. 1, 45 (1977), a case involving the Impairm e nt of the Obligation of Contracts Clause of the Constitution (Art. I, Sec 10, Cl. 1):
One of the fundam e ntal premises of our popular dem o cracy is that each generation of representatives can and will rem a in responsive to the needs and desires of those whom they represent. Crucial to this end is the assurance that new legislators will not autom a tically be bound by the policies and undertakings of earlier days . . . . The Fram ers fully recognized that nothing would so jeopardize the legitim acy of a system of governm e nt that relies upon the ebbs and f l ows of politics to “clean out the rascals” than the possibility that those sam e rascals m i ght perpetuate their policies simp ly by locking them into binding contracts. Nonetheless, the m a xim that one Congress cannot bind a future Congress, like every legal rule, has its limits. As early as 1810, Chief Justice Marshall explained in Fletcher v. Peck , 10 U.S. (6 Cranch) 87, 135 (1810): The principle asserted is that one legislature is comp etent to repeal any act which a form er legislature was comp etent to pass; and that one legislature cannot abridge the powers of a succeeding legislature. The correctness of this principle, so far as respects general legislation, can never be controverted. But, if an act be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by the m o st absolute power. Conveyances have been m a de, those conveyances have vested legal

-5­Opinions of the Office of Legal Counsel estates, and if those estates m a y be seized by the sovereign authority, still, that they originally vested is a fact, and cannot cease to be a fact.
W h en, then, a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot devest [sic] those rights. The powers of one legislature to repeal or am end the acts of the preceding one are limited in the case of States by the Obligation of Contracts Clause (Art. I, Sec. 10, Cl. 1) of the Constitution and the Due Process Clause of the Fourteenth Am endm ent, and in the case of Congressional legislation by the Due Process Clause of the Fifth Am endm ent. This principle was recognized in the Sinking-Fund Cases , 98 U.S. 700, 718-19 (1879): The United States cannot any m o re than a State interfere with private rights, except for legitim ate governm e ntal purposes. They are not included within the constitutional prohibition which prevents States f r om passing laws impairing the obligation of contracts, but equally with the States they are prohibited from depriving persons or corporations of property without due process of law

. They cannot legislate back to them selves, without m aking comp ensation, the lands they have given this corporation to aid in the construction of its railroad. Neither can they by legislation comp el the corporation to discharge its obligations in respect to the subsidy bonds otherwise than according to the term s of the contract already m a de in that connection. The United States are as mu ch bound by their contracts as are individuals. (emphasis supplied.)
See also Bowen v. Agencies Opposed to Soc. Sec. Entrapment , 477 U.S. 41, 54-56 (1986).
IV. The Due Process Clause Does Not Preclude Congress from Amending or Repealing the Two Mutual Consent Clauses The question therefore is whether the Due Process Clause of the Fifth Am endm ent precludes a subsequent Congress from repealing legislation for the governance of non-state areas enacted by an earlier Congress under the Territory Clause. This question mu st be answered in the negative.
The Due Process Clause of the Fifth Am endm ent provides:
No person shall . . . be deprived of life, liberty, or property without due process of law. (emphasis supplied.) This Clause is inapplicable to the repeal or am endm ent of the two mu tual consent clauses here involved for two reasons. First, a non-state area is not a “person” within the m eaning of the Fifth Am endm ent, and, second, such repeal or am endm ent would not deprive the non-state area of a property right within the m eaning of the Fifth Am endm ent. A. A non-state area is not a person in the meaning of the Due Process Clause of the Fifth Amendment.

-6­M u tual Consent Provisions in the Guam Commonwealth Legislation
In South Carolina v. Katzenbach , 383 U.S. 301, 323-24 (1966), the Court held that a State is not a person within the m eaning of the Due Process Clause of the Fifth Am endm ent. See also Alabama v. EPA , 871 F.2d 1548, 1554 (11th Cir.), cert. denied , 493 U.S. 991 (1989) (“The State of Alabam a is not included am ong the entities protected by the due process clause of the fifth am endm ent”); State of Oklahoma v. Federal Energy Regulatory Comm. , 494 F.Supp. 636, 661 (W .D. Okl. 1980), aff'd , 661 F.2d 832 (10th Cir. 1981), cert. denied , sub. nom. Texas v. Federal Energy Regulatory Comm. , 457 U.S. 1105 (1982).
Sim ilarly it has been held that creatures or instrum e ntalities of a State, such as cities or water improvem e nt districts, are not persons within the m eaning of the Due Process Clause of the Fifth Am endm ent. City of Sault Ste. Marie, Mich. v. Andrus , 532 F. Supp. 157, 167 (D.D.C. 1980); El Paso, County Water Improvement District v. IBWC/US , 701 F. Supp. 121, 123-24 (W .D. Tex 1988). The non-state areas, concededly, are not States or instrum e ntalities of States, and we have not found any case holding directly that they are not persons within the m eaning of the Due Process Clause of the Fifth Am endm ent. They are, however, governm e ntal bodies, and the rationale of South Carolina v. Katzenbach , 383 U.S. at 301, appears to be that such bodies are not protected by the Due Process Clause of the Fifth Am endm ent. Moreover, it is well established that the political subdivisions of a State are not considered persons protected as against the State by the provisions of the Fourteenth Am endm ent. See , e.g. , Newark v. New Jersey , 262 U.S. 192, 196 (1923); Williams v. Mayor of Baltimore , 289 U.S. 36, 40 (1933); South Macomb Disposal Authority v. Township of Washington , 790 F.2d 500, 505, 507 (6th Cir. 1986), and the authorities there cited. The relationship of the non-state areas to the Federal Governm e nt has been analogized to that of a city or county to a State. As stated, supra , the Court held in National Bank v. County of Yankton , 101 U.S. 129, 133 (1880): The territories are but political subdivisions of the outlying dominion of the United States. Their relation to the general governm e nt is mu ch the sam e as that which counties bear to the respective States . . . . More recently, the Court explained that a non-state area is entirely the creation of Congress and comp ared the relationship between the Nation and a non-state area to that between a State and a city. United States v. Wheeler , 435 U.S. 313, 321 (1978). It follows that, since States are not persons within the m eaning of the Fif th Am endm ent and since the political subdivisions of States are not persons within the m eaning of the Fourteenth Am endm ent, the non-state areas are not persons within the m eaning of the Due Process Clause of the Fifth Am endm ent.
B. Legislation relating to the governance of non-state areas does not create any rights or status protected by the Due Process Clause against repeal or amendment by subsequent legislation. As explained earlier, a subsequent Congress cannot am end or repeal earlier legislation if such repeal or am endm ent would violate the Due Process Clause of the Fifth Am endm ent, i.e. , if such am ending or repealing legislation would de prive a person of property without due process of law. It has been shown in the preceding part of this m e m o randum , that a non-state area is not a person within the m eaning of the Due Process Clause. Here it will be shown that mu tual

-7­Opinions of the Office of Legal Counsel consent provisions in legislation, such as the ones envisaged in the Guam Com m onwealth Act, would not create property rights within the m eaning of that Clause. Legislation concerning the governance of a non-state area, whether called organic act, federal relations act, or com m onwealth act, that does not contain a mu tual consent clause is clearly subject to am endm ent or repeal by s ubsequent legislation. A non-state area does not acquire a vested interest in a particular stage of self governm e nt that subsequent legislation could not dimi nish or abrogate. W h ile such legislation has not been frequent, it has occurred in connection with the District of Colum b ia. See District of Columbia v. Thompson Co. , 346 U.S. 100, 104-05 (1953); supra n.6. Hence, in the absence of a mu tual consent clause, legislation concerning the governm e nt of a non-state area is subject to am endm ent or repeal by subsequent legislation. This leads to the question whether the addition of a mu tual consent clause, i.e. of a provision that the legislation shall not be m odi fied or repealed without the consent of the Governm e nt of the United States and the Govern m e nt of the non-state area, has the effect of creating in the non-state areas a specific status am ounting to a property right within the m e aning of the Due Process Clause. It is our conclusion that this question mu st be answered in the negative because (1) sovereign governm e ntal powers cannot be contracted away, and (2) because a specif i c political relationship does not constitute “property” within the m eaning of the Fif th Am endm ent. 1. As a body politic the Governm e nt of the United States has the general capacity to enter into contracts. United States v. Tingey , 30 U.S. (5 Pet.) 115, 128 (1831). This power, however, is generally limited to those types of contracts in which private persons or corporations can engage. By contrast sovereign “govern m e ntal powers cannot be contracted away,” North American Coml. Co. v. United States , 171 U.S. 110, 137 (1898). More recently the Suprem e Court held in connection with legislation arisi ng under the Contract Clause (Art. I, Sec. 10, Cl. 1) of the Constitution that “the Contract Clause does not require a State to adhere to a contract that surrenders an essential attribute of its sovereignty.” United States Trust Co. v. New Jersey , 431 U.S. 1, 23 (1977). 7 In a sim ilar context Mr. Justice Holm es stated: One whose rights, such as they are, are subject to state restriction, cannot rem ove them from the power of the State by m aking a contract about them

. Hudson Water Co. v. McCarter , 209 U.S. 349, 357 (1908). 8 Agreem ents or comp acts to the effect that the Congress m a y not am end legislation relating to the governm e nt of a non-state area without the consent of the latter, or that federal legislation shall not apply to Guam unless consented to by the Governm e nt of Guam would unquestionably purport to surrender essential powers of the federal governm e nt. They are

7 Cases arising under the Contract Clause holding that a State cannot contract away a sovereign power are also applicable to the contracts m a de by the federal gove rnm e nt because the Contract Clause im poses m o re rigorous restrictions on the States than the Fifth Am endm ent im poses on the federal governm e nt. Pension Benefit Guaranty Corp. v. R

. A

. Gray Co. , 467 U.S. 717, 733 (1984); National Railroad Passenger Corp. v. A.T. & S.F. Ry.. , 470 U.S. 451, 472-73 n.25 (1985). Hence, when state legislation doe s not violate the Contract Clause, analogous federal legislation is all the m o re permissible under the Due Process Clause of the Fifth Am endm ent.

8 Cited with approval with respect to federal legislation in Norman v. B. & O. R. , 294 U.S. 240, 308 (1935).
-8­M u tual Consent Provisions in the Guam Commonwealth Legislation therefore not binding on the United States and cannotconfer a property interest protected by the Fifth Am endm ent. 9 More generally, the Suprem e Court held in Bowen v. Agencies Opposed to Soc. Sec. Entrapment , 477 U.S. 41 (1986), that the contractual property rights protected by the Due Process Clause of the Fifth Am endm ent are the traditional private contractual rights, such as those arising from bonds or insurance contract s, but not arrangem e nts that are part of a regulatory program such as a State’s privilege to withdraw its participation in the Social Security system with respect to its employees. Specifically, the Court stated: But the “contractual right” at issue in this case bears little, if any, resem b lance to rights held to constitute “property” within the m eaning of the Fif th Am endm ent. The termination provision in the Agreem ent exactly tracked the language of the statute, conferring no righton the State beyond that contained in § 418 itself. The provision constituted neither a debt of the United States, see Perry v. United States , supra , nor an obligation of the United States to provide benefits under a contract for which the obligee paid a m onetary prem ium , see Lynch v. United States , supra
. The termination clause was not unique to this Agreem ent; nor was it a term over which the State had any bargaining power or for which the State provided independent consideration. Rather, the provision simp ly was part of a regulatory program over which Congress retained authority to am end in the exercise of its power to provide for the general welfare.
Id. At 55. Agreem ents that the Guam Com m onwealth Act m a y not be am ended without the consent of the Governm e nt of Guam , or that future federal statutes and regulations shall not apply to Guam without the consent of the Governm e nt of Guam clearly do not constitute conventional private contracts; they are elem ents of a regulatory system

. In the past the Departm e nt of Justice at tim es has concluded that a non-State area m a y have a vested interest in a specific status whic h would be immune from unilaterial Congressional am endm ent or repeal. 10 W e cannot continue to adhere to that position in view of the rulings of the Suprem e Court that legislation concerning the governance of a non-state area is necessarily subject to Congressional am endm ent and repeal; that governm e ntal bodies are not persons within the m eaning of the Due Process Clause; that governm e ntal powers cannot be contracted away, and especially the exposition in the recent Bowen case that the property rights protected by the

9 Cases such as Lynch v. United States , 292 U.S. 571 (1934), and Perry v. United States , 294 U.S. 330 (1935), are not contrary to this conclusion. Both cases involved comm e rcial agreem ents (Lynch : insurance; Perry : Governm e nt bonds) In Lynch the Court held that Congress could not am end the contract m e rely to save m oney “unless, indeed the action falls within the federal police police power or som e other param ount power.” 292 U.S. at 579. Perry involved bonds issued by the United States under the authority of Art. I, Sec. 8, Cl. 2 of the Constitution, to borrow m oney on the credit of the United States. The Cour t held that Congress did not have the power to destroy the credit of the United States or to render it illusory by unilaterally abrogating one of the pivotal term s of the bonds to save m oney. W h ile the Court held that the United States had broken the agreem ent, it nevertheless held that plaintiff could not recover because, as the result of re gulations validly issued by the United States, he had not suffered any m onetary dam a ges.

10 Cf. n.2.
-9­Opinions of the Office of Legal Counsel Due Process Clause are those arising from priv ate law or com m e rcial contracts and not those arising from governm e ntal relations. 11
Sections 103 and 202 therefore do not create ve sted property rights protected by the Due Process Clause of the Fifth Am endm ent. 12 Congress thus retains the power to am end the Guam Com m onwealth Act unilaterally or to provide that its legislation shall apply to Guam without the consent of the governm e nt of the Comm onwealth. The inclusion of such provisions, therefore, in the Com m onwealth Act would be m i sleading. Honesty and fair dealing forbid the inclusion of such illusory and deceptive provisions in the Guam Com m onwealth Act. 13 Finally, the Departm e nt of Justice has indicated that it would honor past com m itm ents with respect to the mu tual consent issue, such as Section 105 of the Covenant with the Northern Mariana Islands, in spite of its reevaluation of this problem

. The question whether the 1989 Task Force proposal to am end Section 103 of the Guam Com m onwealth Act so as to lim it the mu tual consent requirem e nt to Sections 101, 103, 201, and 301 constitutes such prior com m itm ent appears to have been rendered m oot by the rejection of that proposal by the Guam C o mmi s s i o n
.

TERESA W YNN ROSEBOROUGH Deputy Assistant Attorney General Office of Legal Counsel

11 It is significant that the circum stances in which C ongress can effectively agree not to repeal or am end legislation were discussed in the context of commercial contracts. Bowen , 477 U.S. at 52.

12 Bowen , it is true, dealt with legislation that expressly reserved the right of Congress to am end, while the proposed Guam Comm onwealth Act would expressly preclude the right of Congress to am end without the consent of the Governm e nt of Guam

. The underlying agreem ents, however , are not of a private contractual nature, and, hence, are not property within the m eaning of the Due Process Clau se. W e cannot perceive how they can be converted into “property” by the addition of a provision that Congress foregoes the right of am endm ent.

13 The conclusion that Section 202 of the Guam Comm onwealth Act (inapplicability of future federal legislation to Guam without the consent of Guam ) would not bind a future Congress obviates the need to examine the constitutionality of Section 202. In Currin v. Wallace , 306 U.S. 1, 15-16 (1939), and United States v. Rock Royal Co-op. 307 U.S. 533, 577-78 (1939), the Court upheld legislation that m a de the effectiveness of regulations dependent on the approval of tobacco farm ers or milk producer s affected by them

. The Court held that this approval was a legitim ate condition for m aking the legislation applicab le. Similarly, it could be argued that the approval of federal legislation by the Governm e nt of Guam is a leg itim ate condition for m aking that legislation applicable to Guam

. Since, as stated above, a future Congress w ould not be bound by Section 202, we need not decide the question whether the requirem e nt of approval by the Governm e nt of Guam for every future federal statute and regulation is excessive and inconsistent with the federal sovereignty over Guam

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