II 

Calendar No. 1083 

110TH CONGRESS 

2D SESSION S. 3501 

To ensure that Congress is notified when the Department of Justice 

determines that the Executive Branch is not bound by a statute. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 16, 2008 

Mr. FEINGOLD (for himself and Mrs. FEINSTEIN) introduced the following 

bill; which was read twice and referred to the Committee on the Judiciary 

SEPTEMBER 25 (legislative day, SEPTEMBER 17), 2008 

Reported by Mr. LEAHY, without amendment 

A BILL 

To ensure that Congress is notified when the Department 

of Justice determines that the Executive Branch is not 

bound by a statute. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘OLC Reporting Act 

5 of 2008’’. 


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1 SEC. 2. REPORTING. 

2 Section 530D of title 28, United States Code, is 

3 amended— 

4 (1) in subsection (a)— 

5 (A) in paragraph (1)— 

6 (i) in subparagraph (B), by striking 

7 ‘‘or’’ at the end; 

8 (ii) by redesignating subparagraph 

9 (C) as subparagraph (D); and 

10 (iii) by inserting after subparagraph 

11 (B) the following: 

12 ‘‘(C) except as provided in paragraph (3), 

13 issues an authoritative legal interpretation (in14 cluding an interpretation under section 511, 

15 512, or 513 by the Attorney General or by an 

16 officer, employee, or agency of the Department 

17 of Justice pursuant to a delegation of authority 

18 under section 510) of any provision of any Fed19 eral statute— 

20 ‘‘(i) that concludes that the provision 

21 is unconstitutional or would be unconstitu22 tional in a particular application; 

23 ‘‘(ii) that relies for the conclusion of 

24 the authoritative legal interpretation, in 

25 whole or in the alternative, on a deter26 mination that an interpretation of the proVerDate Aug 31 2005 03:22 Sep 26, 2008 Jkt 069200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3501.RS S3501

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1 vision other than the authoritative legal in2 terpretation would raise constitutional con3 cerns under article II of the Constitution 

4 of the United States or separation of pow5 ers principles; 

6 ‘‘(iii) that relies for the conclusion of 

7 the authoritative legal interpretation, in 

8 whole or in the alternative, on a legal pre9 sumption against applying the provision, 

10 whether during a war or otherwise, to— 

11 ‘‘(I) any department or agency 

12 established in the executive branch of 

13 the Federal Government, including 

14 the Executive Office of the President 

15 and the military departments (as de16 fined in section 101(8) of title 10); or 

17 ‘‘(II) any officer, employee, or 

18 member of any department or agency 

19 established in the executive branch of 

20 the Federal Government, including 

21 the President and any member of the 

22 Armed Forces; or 

23 ‘‘(iv) that concludes the provision has 

24 been superseded or deprived of effect in 

25 whole or in part by a subsequently enacted 


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1 statute where there is no express statutory 

2 language stating an intent to supersede the 

3 prior provision or deprive it of effect; or’’; 

4 (B) in paragraph (2), by striking ‘‘For the 

5 purposes’’ and all that follows through ‘‘if the 

6 report’’ and inserting ‘‘Except as provided in 

7 paragraph (4), a report shall be considered to 

8 be submitted to the Congress for the purposes 

9 of paragraph (1) if the report’’; and 

10 (C) by adding at the end the following: 

11 ‘‘(3) DIRECTION REGARDING INTERPRETA12 TION.—The submission of a report to Congress 

13 based on the issuance of an authoritative legal inter14 pretation described in paragraph (1)(C) shall be dis15 cretionary on the part of the Attorney General or an 

16 officer described in subsection (e) if— 

17 ‘‘(A) the President or other responsible of18 ficer of a department or agency established in 

19 the executive branch of the Federal Govern20 ment, including the Executive Office of the 

21 President and the military departments (as de22 fined in section 101(8) of title 10), expressly di23 rects that no action be taken or withheld or pol24 icy implemented or stayed on the basis of the 

25 authoritative legal interpretation; and 


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1 ‘‘(B) the directive described in subpara2 graph (A) is in effect. 

3 ‘‘(4) CLASSIFIED INFORMATION.— 

4 ‘‘(A) SUBMISSION OF REPORT CONTAINING

5 CLASSIFIED INFORMATION REGARDING INTEL6 LIGENCE ACTIVITIES.—Except as provided in 

7 subparagraph (B), if the Attorney General sub8 mits a report relating to an instance described 

9 in paragraph (1) that includes a classified 

10 annex containing information relating to intel11 ligence activities, the report shall be considered 

12 to be submitted to the Congress for the pur13 poses of paragraph (1) if— 

14 ‘‘(i) the unclassified portion of the re15 port is submitted to each officer specified 

16 in paragraph (2); and 

17 ‘‘(ii) the classified annex is submitted 

18 to the Select Committee on Intelligence 

19 and the Committee on the Judiciary of the 

20 Senate and the Permanent Select Com21 mittee on Intelligence and the Committee 

22 on the Judiciary of the House of Rep23 resentatives. 


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1 ‘‘(B) SUBMISSION OF REPORT CONTAINING

2 CERTAIN CLASSIFIED INFORMATION ABOUT

3 COVERT ACTIONS.— 

4 ‘‘(i) IN GENERAL.—In a circumstance 

5 described in clause (ii), a report described 

6 in that clause shall be considered to be 

7 submitted to the Congress for the purposes 

8 of paragraph (1) if— 

9 ‘‘(I) the unclassified portion of 

10 the report is submitted to each officer 

11 specified in paragraph (2); and 

12 ‘‘(II) the classified annex is sub13 mitted to— 

14 ‘‘(aa) the chairman and 

15 ranking minority member of the 

16 Select Committee on Intelligence 

17 of the Senate; 

18 ‘‘(bb) the chairman and 

19 ranking minority member of the 

20 Committee on the Judiciary of 

21 the Senate; 

22 ‘‘(cc) the chairman and 

23 ranking minority member of the 

24 Permanent Select Committee on 


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1 Intelligence of the House of Rep2 resentatives; 

3 ‘‘(dd) the chairman and 

4 ranking minority member of the 

5 Committee on the Judiciary of 

6 the House of Representatives; 

7 ‘‘(ee) the Speaker and mi8 nority leader of the House of 

9 Representatives; and 

10 ‘‘(ff) the majority leader and 

11 minority leader of the Senate. 

12 ‘‘(ii) CIRCUMSTANCES.—A cir13 cumstance described in this clause is a cir14 cumstance in which— 

15 ‘‘(I) the Attorney General sub16 mits a report relating to an instance 

17 described in paragraph (1) that in18 cludes a classified annex containing 

19 information relating to a Presidential 

20 finding described in section 503(a) of 

21 the National Security Act of 1947 (50 

22 U.S.C. 413b(a)); and 

23 ‘‘(II) the President determines 

24 that it is essential to limit access to 

25 the information described in subclause 


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1 (I) to meet extraordinary cir2 cumstances affecting vital interests of 

3 the United States.’’; 

4 (2) in subsection (b)— 

5 (A) in paragraph (2), by striking ‘‘and’’ at 

6 the end; 

7 (B) by redesignating paragraph (3) as 

8 paragraph (4); 

9 (C) by inserting after paragraph (2) the 

10 following: 

11 ‘‘(3) under subsection (a)(1)(C)— 

12 ‘‘(A) not later than 30 days after the date 

13 on which the Attorney General, the Office of 

14 Legal Counsel, or any other officer of the De15 partment of Justice issues the authoritative 

16 legal interpretation of the Federal statutory 

17 provision; or 

18 ‘‘(B) if the President or other responsible 

19 officer of a department or agency established in 

20 the executive branch of the Federal Govern21 ment, including the Executive Office of the 

22 President and the military departments (as de23 fined in section 101(8) of title 10), issues a di24 rective described in subsection (a)(3) and the 

25 directive is subsequently rescinded, not later 


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1 than 30 days after the date on which the Presi2 dent or other responsible officer rescinds that 

3 directive; and’’; and 

4 (D) in paragraph (4), as so redesignated, 

5 by striking ‘‘subsection (a)(1)(C)’’ and inserting 

6 ‘‘subsection (a)(1)(D)’’; 

7 (3) in subsection (c)— 

8 (A) in paragraph (1), by striking ‘‘or of 

9 each approval described in subsection 

10 (a)(1)(C)’’ and inserting ‘‘of the issuance of the 

11 authoritative legal interpretation described in 

12 subsection (a)(1)(C), or of each approval de13 scribed in subsection (a)(1)(D)’’; 

14 (B) by redesignating paragraphs (2) and 

15 (3) as paragraphs (3) and (4), respectively; 

16 (C) by inserting after paragraph (1) the 

17 following: 

18 ‘‘(2) with respect to a report required under 

19 subparagraph (A), (B), or (C) of subsection (a)(1), 

20 specify the Federal statute, rule, regulation, pro21 gram, policy, or other law at issue, and the para22 graph and clause of subsection (a)(1) that describes 

23 the action of the Attorney General or other officer 

24 of the Department of Justice;’’; 

25 (D) in paragraph (3), as so redesignated— 


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1 (i) by striking ‘‘reasons for the policy 

2 or determination’’ and inserting ‘‘reasons 

3 for the policy, authoritative legal interpre4 tation, or determination’’; 

5 (ii) by inserting ‘‘issuing such authori6 tative legal interpretation,’’ after ‘‘or im7 plementing such policy,’’; 

8 (iii) by striking ‘‘except that’’ and in9 serting ‘‘provided that’’; 

10 (iv) by redesignating subparagraphs 

11 (A) and (B) as subparagraphs (B) and 

12 (C), respectively; 

13 (v) by inserting before subparagraph 

14 (B), as so redesignated, the following: 

15 ‘‘(A) any classified information shall be 

16 provided in a classified annex, which shall be 

17 handled in accordance with the security proce18 dures established under section 501(d) of the 

19 National Security Act of 1947 (50 U.S.C. 

20 413(d));’’; 

21 (vi) in subparagraph (B), as so redes22 ignated— 

23 (I) by inserting ‘‘except for infor24 mation described in paragraph (1) or 


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1 (2),’’ before ‘‘such details may be 

2 omitted’’; 

3 (II) by striking ‘‘national4 security- or classified information, of 

5 any’’; and 

6 (III) by striking ‘‘or other law’’ 

7 and inserting ‘‘or other statute’’; 

8 (vii) in subparagraph (C), as so redes9 ignated— 

10 (I) by redesignating clauses (i) 

11 and (ii) as clauses (ii) and (iii), re12 spectively; 

13 (II) by inserting before clause 

14 (ii), as so redesignated, the following: 

15 ‘‘(i) in the case of an authoritative 

16 legal interpretation described in subsection 

17 (a)(1)(C), if a copy of the Office of Legal 

18 Counsel or other legal opinion setting forth 

19 the authoritative legal interpretation is 

20 provided;’’; 

21 (III) in clause (ii), as so redesig22 nated, by striking ‘‘subsection 

23 (a)(1)(C)(i)’’ and inserting ‘‘sub24 section (a)(1)(D)(i)’’; and 


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1 (IV) in clause (iii), as so redesig2 nated, by striking ‘‘subsection 

3 (a)(1)(C)(ii)’’ and inserting ‘‘sub4 section (a)(1)(D)(ii)’’; and 

5 (E) in paragraph (4), as so redesignated, 

6 by striking ‘‘subsection (a)(1)(C)(i)’’ and insert7 ing ‘‘subsection (a)(1)(D)(i)’’; and 

8 (4) in subsection (e)— 

9 (A) by striking ‘‘(but only with respect to 

10 the promulgation of any unclassified Executive 

11 order or similar memorandum or order)’’; and 

12 (B) by inserting ‘‘issues an authoritative 

13 interpretation described in subsection 

14 (a)(1)(C),’’ after ‘‘policy described in subsection 

15 (a)(1)(A),’’. 


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Calendar No. 1083 

110TH CONGRESS 

2D SESSION S. 3501 

A BILL 

To ensure that Congress is notified when the Detive Branch is not bound by a statute. partment of Justice determines that the ExecuSEPTEMBER 25 (legislative day, SEPTEMBER 17), 2008 

Reported without amendment 


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