II 

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 

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’’. 

6 SEC. 2. REPORTING. 

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

8 amended— 

9 (1) in subsection (a)— 

10 (A) in paragraph (1)— 


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

2 ‘‘or’’ at the end; 

3 (ii) by redesignating subparagraph 

4 (C) as subparagraph (D); and 

5 (iii) by inserting after subparagraph 

6 (B) the following: 

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

8 issues an authoritative legal interpretation (in9 cluding an interpretation under section 511, 

10 512, or 513 by the Attorney General or by an 

11 officer, employee, or agency of the Department 

12 of Justice pursuant to a delegation of authority 

13 under section 510) of any provision of any Fed14 eral statute— 

15 ‘‘(i) that concludes that the provision 

16 is unconstitutional or would be unconstitu17 tional in a particular application; 

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

19 the authoritative legal interpretation, in 

20 whole or in the alternative, on a deter21 mination that an interpretation of the pro22 vision other than the authoritative legal in23 terpretation would raise constitutional con24 cerns under article II of the Constitution 


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1 of the United States or separation of pow2 ers principles; 

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

4 the authoritative legal interpretation, in 

5 whole or in the alternative, on a legal pre6 sumption against applying the provision, 

7 whether during a war or otherwise, to— 

8 ‘‘(I) any department or agency 

9 established in the executive branch of 

10 the Federal Government, including 

11 the Executive Office of the President 

12 and the military departments (as de13 fined in section 101(8) of title 10); or 

14 ‘‘(II) any officer, employee, or 

15 member of any department or agency 

16 established in the executive branch of 

17 the Federal Government, including 

18 the President and any member of the 

19 Armed Forces; or 

20 ‘‘(iv) that concludes the provision has 

21 been superseded or deprived of effect in 

22 whole or in part by a subsequently enacted 

23 statute where there is no express statutory 

24 language stating an intent to supersede the 

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


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

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

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

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

5 be submitted to the Congress for the purposes 

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

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

8 ‘‘(3) DIRECTION REGARDING INTERPRETA9 TION.—The submission of a report to Congress 

10 based on the issuance of an authoritative legal inter11 pretation described in paragraph (1)(C) shall be dis12 cretionary on the part of the Attorney General or an 

13 officer described in subsection (e) if— 

14 ‘‘(A) the President or other responsible of15 ficer of a department or agency established in 

16 the executive branch of the Federal Govern17 ment, including the Executive Office of the 

18 President and the military departments (as de19 fined in section 101(8) of title 10), expressly di20 rects that no action be taken or withheld or pol21 icy implemented or stayed on the basis of the 

22 authoritative legal interpretation; and 

23 ‘‘(B) the directive described in subpara24 graph (A) is in effect. 

25 ‘‘(4) CLASSIFIED INFORMATION.— 


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1 ‘‘(A) SUBMISSION OF REPORT CONTAINING

2 CLASSIFIED INFORMATION REGARDING INTEL3 LIGENCE ACTIVITIES.—Except as provided in 

4 subparagraph (B), if the Attorney General sub5 mits a report relating to an instance described 

6 in paragraph (1) that includes a classified 

7 annex containing information relating to intel8 ligence activities, the report shall be considered 

9 to be submitted to the Congress for the pur10 poses of paragraph (1) if— 

11 ‘‘(i) the unclassified portion of the re12 port is submitted to each officer specified 

13 in paragraph (2); and 

14 ‘‘(ii) the classified annex is submitted 

15 to the Select Committee on Intelligence 

16 and the Committee on the Judiciary of the 

17 Senate and the Permanent Select Com18 mittee on Intelligence and the Committee 

19 on the Judiciary of the House of Rep20 resentatives. 

21 ‘‘(B) SUBMISSION OF REPORT CONTAINING

22 CERTAIN CLASSIFIED INFORMATION ABOUT

23 COVERT ACTIONS.— 

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

25 described in clause (ii), a report described 


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1 in that clause shall be considered to be 

2 submitted to the Congress for the purposes 

3 of paragraph (1) if— 

4 ‘‘(I) the unclassified portion of 

5 the report is submitted to each officer 

6 specified in paragraph (2); and 

7 ‘‘(II) the classified annex is sub8 mitted to— 

9 ‘‘(aa) the chairman and 

10 ranking minority member of the 

11 Select Committee on Intelligence 

12 of the Senate; 

13 ‘‘(bb) the chairman and 

14 ranking minority member of the 

15 Committee on the Judiciary of 

16 the Senate; 

17 ‘‘(cc) the chairman and 

18 ranking minority member of the 

19 Permanent Select Committee on 

20 Intelligence of the House of Rep21 resentatives; 

22 ‘‘(dd) the chairman and 

23 ranking minority member of the 

24 Committee on the Judiciary of 

25 the House of Representatives; 


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1 ‘‘(ee) the Speaker and mi2 nority leader of the House of 

3 Representatives; and 

4 ‘‘(ff) the majority leader and 

5 minority leader of the Senate. 

6 ‘‘(ii) CIRCUMSTANCES.—A cir7 cumstance described in this clause is a cir8 cumstance in which— 

9 ‘‘(I) the Attorney General sub10 mits a report relating to an instance 

11 described in paragraph (1) that in12 cludes a classified annex containing 

13 information relating to a Presidential 

14 finding described in section 503(a) of 

15 the National Security Act of 1947 (50 

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

17 ‘‘(II) the President determines 

18 that it is essential to limit access to 

19 the information described in subclause 

20 (I) to meet extraordinary cir21 cumstances affecting vital interests of 

22 the United States.’’; 

23 (2) in subsection (b)— 

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

25 the end; 


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1 (B) by redesignating paragraph (3) as 

2 paragraph (4); 

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

4 following: 

5 ‘‘(3) under subsection (a)(1)(C)— 

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

7 on which the Attorney General, the Office of 

8 Legal Counsel, or any other officer of the De9 partment of Justice issues the authoritative 

10 legal interpretation of the Federal statutory 

11 provision; or 

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

13 officer of a department or agency established in 

14 the executive branch of the Federal Govern15 ment, including the Executive Office of the 

16 President and the military departments (as de17 fined in section 101(8) of title 10), issues a di18 rective described in subsection (a)(3) and the 

19 directive is subsequently rescinded, not later 

20 than 30 days after the date on which the Presi21 dent or other responsible officer rescinds that 

22 directive; and’’; and 

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

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

25 ‘‘subsection (a)(1)(D)’’; 


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1 (3) in subsection (c)— 

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

3 each approval described in subsection 

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

5 authoritative legal interpretation described in 

6 subsection (a)(1)(C), or of each approval de7 scribed in subsection (a)(1)(D)’’; 

8 (B) by redesignating paragraphs (2) and 

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

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

11 following: 

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

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

14 specify the Federal statute, rule, regulation, pro15 gram, policy, or other law at issue, and the para16 graph and clause of subsection (a)(1) that describes 

17 the action of the Attorney General or other officer 

18 of the Department of Justice;’’; 

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

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

21 or determination’’ and inserting ‘‘reasons 

22 for the policy, authoritative legal interpre23 tation, or determination’’; 


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1 (ii) by inserting ‘‘issuing such authori2 tative legal interpretation,’’ after ‘‘or im3 plementing such policy,’’; 

4 (iii) by striking ‘‘except that’’ and in5 serting ‘‘provided that’’; 

6 (iv) by redesignating subparagraphs 

7 (A) and (B) as subparagraphs (B) and 

8 (C), respectively; 

9 (v) by inserting before subparagraph 

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

11 ‘‘(A) any classified information shall be 

12 provided in a classified annex, which shall be 

13 handled in accordance with the security proce14 dures established under section 501(d) of the 

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

16 413(d));’’; 

17 (vi) in subparagraph (B), as so redes18 ignated— 

19 (I) by inserting ‘‘except for infor20 mation described in paragraph (1) or 

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

22 omitted’’; 

23 (II) by striking ‘‘national24 security- or classified information, of 

25 any’’; and 


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1 (III) by striking ‘‘or other law’’ 

2 and inserting ‘‘or other statute’’; 

3 (vii) in subparagraph (C), as so redes4 ignated— 

5 (I) by redesignating clauses (i) 

6 and (ii) as clauses (ii) and (iii), re7 spectively; 

8 (II) by inserting before clause 

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

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

11 legal interpretation described in subsection 

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

13 Counsel or other legal opinion setting forth 

14 the authoritative legal interpretation is 

15 provided;’’; 

16 (III) in clause (ii), as so redesig17 nated, by striking ‘‘subsection 

18 (a)(1)(C)(i)’’ and inserting ‘‘sub19 section (a)(1)(D)(i)’’; and 

20 (IV) in clause (iii), as so redesig21 nated, by striking ‘‘subsection 

22 (a)(1)(C)(ii)’’ and inserting ‘‘sub23 section (a)(1)(D)(ii)’’; and 


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

2 by striking ‘‘subsection (a)(1)(C)(i)’’ and insert3 ing ‘‘subsection (a)(1)(D)(i)’’; and 

4 (4) in subsection (e)— 

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

6 the promulgation of any unclassified Executive 

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

8 (B) by inserting ‘‘issues an authoritative 

9 interpretation described in subsection 

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

11 (a)(1)(A),’’. 

Æ 


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