b'Accessibility Guidelines and Federal Lease Renewals\nThe A rchitectural and Transportation Barriers Com pliance Board m ay require, pursuant to the A rchitec\xc2\xad\ntural B arriers Act o f 1968, that buildings first leased by federal agencies after 1976 be brought\ninto com pliance with current accessibility standards when the agency negotiates renew al o f the\nlease.\n\nMay 26, 1999\nM e m o r a n d u m O p in io n f o r t h e D e p u ty G e n e r a l C o u n s e l\n\nU.S.\n\nA rc h ite c tu ra l a n d T ra n s p o rta tio n B a rrie rs\nC o m p lia n c e B o a r d\n\nThis responds to your request for our opinion whether guidelines to be issued\nby the Architectural and Transportation Barriers Compliance Board (\xe2\x80\x9c Board\xe2\x80\x9d or\n\xe2\x80\x9c Access Board\xe2\x80\x9d ) under the Architectural Barriers Act of 1968, 42 U.S.C.\n\xc2\xa7\xc2\xa74151\xe2\x80\x944157 (1994) (\xe2\x80\x9c Act\xe2\x80\x9d or \xe2\x80\x9c Barriers Act\xe2\x80\x9d ), may require that buildings first\nleased by federal agencies after 1976 be brought into compliance with updated\naccessibility standards when the agency negotiates renewal of the lease. See Letter\nfor Dawn E. Johnsen, Acting Assistant Attorney General, Office of Legal Counsel,\nfrom Elizabeth A. Stewart, Deputy General Counsel, U.S. Architectural and\nTransportation Barriers Compliance Board (June 10, 1998) (\xe2\x80\x9c Board Letter\xe2\x80\x9d ). Fol\xc2\xad\nlowing receipt of your opinion request, we have received and considered additional\nsubmissions from both the Board and the United States Postal Service (\xe2\x80\x9c USPS\xe2\x80\x9d\nor \xe2\x80\x9c Service\xe2\x80\x9d ). We conclude thaL the Board may lawfully issue guidelines\nincluding such a requirement.\nI. BACKGROUND\nThe Act requires four federal departments and agencies (in consultation with\nthe Secretary of Health and Human Services) to promulgate standards for the\ndesign, construction, and alteration of buildings occupied or used by federal agen\xc2\xad\ncies \xe2\x80\x9c to insure whenever possible that physically handicapped persons will have\nready access to, and use of, such buildings.\xe2\x80\x9d 42 U.S.C. \xc2\xa7\xc2\xa74152-4154a. The\nAdministrator of General Services has general responsibilities for prescribing\nstandards for buildings covered by the Act, id. \xc2\xa74152, while the Secretary of\nHousing and Urban Development, the Secretary of Defense, and the U.S. Postal\nService have separate authority to set standards under the Act for buildings used\nby their respective departments or services. See id. \xc2\xa7\xc2\xa74153-4154a. The Act further\nrequires that \xe2\x80\x9c [e]very building designed, constructed, or altered after the effective\ndate of a standard issued under this chapter which is applicable to such building,\nshall be designed, constructed, or altered in accordance with such standard.\xe2\x80\x9d Id.\n\xc2\xa74155.\nI ll\n\n\x0cOpinions o f the Office o f L egal Counsel in Volume 23\n\nIt is not in dispute that the Act applies in general terms to buildings that are\nleased in whole or in part by federal agencies. See id. \xc2\xa74151(2) (defining\n\xe2\x80\x9c building\xe2\x80\x9d to include any building or facility \xe2\x80\x9c leased in whole or in part by\nthe United States\xe2\x80\x9d ). The narrower question presented here concerns the timing\nand extent of compliance obligations \xe2\x80\x94 i.e., whether the Board may require a fed\xc2\xad\neral lessee renegotiating a lease to modify or retrofit a building to conform to\ncurrent accessibility standards.\nPursuant to the Rehabilitation Act of 1973, the Access Board was granted\nauthority to establish minimum guidelines and requirements for, and to enforce,\nthe accessibility standards issued by the four departments and agencies designated\nunder the Barriers Act. See 29 U.S.C. \xc2\xa7 792(b)(1), (3)(A) (1994 & Supp. IV 1998).\nThe minimum Guidelines issued by the Board in 1981 are codified at 36 C.F.R.\npt. 1190 (1998).1 The Board is revising its guidelines to conform more closely\nto the accessibility requirements of the Americans with Disabilities Act of 1990,\n42 U.S.C. \xc2\xa7\xc2\xa7 12101-12213 (1994 & Supp. II 1996), and anticipates issuing a\nnotice of proposed rulemaking for adoption of the new guidelines in the near\nfuture. Among other things, the Board proposes that the revised guidelines require\ncompliance with revised accessibility standards in all buildings or facilities for\nwhich leases \xe2\x80\x94 including renewals of expired leases \xe2\x80\x94 are negotiated by a federal\nagency after the effective date of the revised standards adopted pursuant to the\nrevised guidelines. This requirement is to be embodied in Section F202.6 of the\nproposed revised guidelines, which provides:\nF202.6 Leases. Buildings or facilities for which new leases are\nnegotiated by the federal government after [effective date of the\nrevised accessibility standard], including new leases for buildings\nor facilities previously occupied by the federal government, shall\ncomply with F202.6 [requiring that designated elements of leased\nspace be accessible].\n\nLetter for Randolph D. Moss, Acting Assistant Attorney General, Office of Legal\nCounsel, from Zoe Strickland, Attorney, U.S. Postal Service, Re: Access Board\nRequest fo r Opinion on ABA Leasing, Attachment D at 1 (Sept. 30, 1998) (\xe2\x80\x9c USPS\nLetter\xe2\x80\x9d ). As further explained in the Board\xe2\x80\x99s submission, a \xe2\x80\x9c new lease\xe2\x80\x9d that\ntriggers compliance obligations would include \xe2\x80\x9c the negotiation of an agreement\nto lease a building or facility, regardless of whether the leased space was pre\xc2\xad\nviously occupied by the Federal government.\xe2\x80\x9d Board Letter, Attachment A at 1.\n1 The current Board guideline on leasing does not expressly require accessibility compliance as a condition of\na federal agency\xe2\x80\x99s entering into or renewing a lease See 36 C.F.R. \xc2\xa7 1190.34. Rather, it requires that when a facility\nthat m eets, o r m ost closely meets, the current accessibility standard is available for leasing, the renung agency must\ngive a reasonable preference to that facility. Id. \xc2\xa7 ] 190 34(a)\n\n112\n\n\x0cAccessibility Guidelines and Federal Lease Renewals\n\nSubsequently, in response to a request for clarification from this Office, the\nBoard has stated that its proposed revised guidelines will also include the fol\xc2\xad\nlowing explanatory text or commentary:\nThe negotiation of a new lease occurs when (1) the Federal\ngovernment leases a facility that it did not occupy previously; or\n(2) an existing term ends and a new lease is negotiated for contin\xc2\xad\nued occupancy. The unilateral exercise of an option which is\nincluded as one of the terms of a preexisting lease is not considered\nthe negotiation of a new lease. Negotiations which do not result\nin a lease agreement are not covered by the guidelines.\nLetter for George Smith, Office of Legal Counsel, from Elizabeth A. Stewart,\nDeputy General Counsel, U.S. Architectural and Transportation Barriers Compli\xc2\xad\nance Board, Attachment at 2 (Dec. 21, 1998) (\xe2\x80\x9c Board Supplement\xe2\x80\x9d ).2\nThe Postal Service contends that the Board is not authorized to require federal\nagencies to render a building accessible under updated Barriers Act standards upon\nrenewing an expiring lease if the building was originally leased after January 1,\n1977, and previously rendered accessible under Barriers Act standards then in\neffect. The Board has therefore requested our opinion to resolve this question.3\nIn addition to the Board\xe2\x80\x99s two submissions on the issues presented, we have\nreceived and considered two submissions from the Postal Service as well. See\nUSPS Letter; Letter for George Smith, Office of Legal Counsel, from Zoe\nStrickland, Attorney, U.S. Postal Service, Re: Access Board Request fo r Opinion\non ABA Leasing (Jan. 7, 1999) (\xe2\x80\x9c USPS Supplement\xe2\x80\x9d ). The Postal Service\nsummarized its contentions in the following terms:\nThe Access Board lacks the authority to issue the leasing guide\xc2\xad\nlines described above because it is contrary to the ABA, which is\nnot tied to negotiations and only covers renewals of pre-1977\nleases, and because the ABA standard-setting agencies, not the\n2 The last sentence o f the above-quoted clarification resolves any possible ambiguity created by the language in\nSection F202 6, providing that accessibility compliance obbgations are triggered whenever \xe2\x80\x9c new leases are negouated.\xe2\x80\x9d In the absence o f a definition o f the term \xe2\x80\x9c negotiated,\xe2\x80\x9d the provision might be construed to impose compli\xc2\xad\nance obligations on the basis of negotiations alone, even before a new lease is actually executed or undertaken\nWe believe the inclusion of the above-quoted clarification will adequately address this potential ambiguity, as well\nas the USPS argument that the proposed guidelines are invalidly \xe2\x80\x9c tied to negotiations,\xe2\x80\x9d USPS Letter at 2.\n3 In a memorandum transmitted to this Office by fax on August II, 1998, the Board refined and clarified the\nquestion originally presented by providing the following illustrative hypothetical o f how its proposed interpretation\nwould apply if adopted1\nThe U S Postal Service (USPS) leases a facility in 1990. The lease is for a term of 15 years. The facility\ncomplies with the accessibility standards in effect m 1990. Subsequently, the Access Board issues new\naccessibility guidelines and each o f the standard setting agencies revise their standards based on the new\nguidelines The new standards are effecuve September 1, 1998 In the year 2005, the USPS negotiates\na lease to continue occupying the facility for another 15 years. The facility must meet the revised accessi\xc2\xad\nbility standards in effect in the year 2005\n\n113\n\n\x0cOpinions o f the Office o f L egal Counsel in Volume 23\n\nBoard, are authorized to issue regulations defining statutory cov\xc2\xad\nerage.\nUSPS Letter at 2 (footnote omitted) (emphasis added). More specifically, the\nService asserts that the Act requires agencies to render leased buildings accessible\nin compliance with governing standards only at the time the lease is initially\nentered or, in the case of \xe2\x80\x9c grandfathered\xe2\x80\x9d leases entered by the agency before\n1977, on the occasion of the first renewal of such lease. The Service vigorously\ncontests the Board\xe2\x80\x99s authority to issue guidelines requiring updated accessibility\nwhenever an agency enters into a negotiated renewal of an expiring post-1976\nlease of a building that has been previously rendered accessible under the statutory\nrequirements.\nH. ANALYSIS\nA.\nThis Office has addressed in prior opinions a number of closely related issues\nconcerning application of the Act to federally leased facilities. Those opinions,\ntogether with a case from the U.S. Court of Appeals for the Ninth Circuit (dis\xc2\xad\ncussed in Point II.B, infra), establish the legal framework for resolving this matter.\nIn 1980, we considered whether the accessibility guidelines proposed by the\nAccess Board pursuant to 29 U.S.C. \xc2\xa7 792(b) exceeded the Board\xe2\x80\x99s statutory\nauthority or improperly usurped the standard-setting authority of the designated\nstandard-setting agencies. See Memorandum for Mason H. Rose, V, Chairperson,\nArchitectural and Transportation Barriers Compliance Board, from Leon Ulman,\nDeputy Assistant Attorney General, Office of Legal Counsel (Dec. 31, 1980)\n(\xe2\x80\x9c 1980 Opinion\xe2\x80\x9d ). In upholding the Board\xe2\x80\x99s authority to issue detailed and sub\xc2\xad\nstantive accessibility guidelines against a challenge by the standard-setting agen\xc2\xad\ncies, we stated:\nCongress has given little guidance to determine the nature and\nlimits of the Board\xe2\x80\x99s authority. In such circumstances, the Board\nhas a great deal o f discretion, even if the practical effect of its\nconstruction is to constrain the authority of the standard-setting\nagencies.\n\nIt is plain that Congress accorded rulemaking authority to the Board\nbecause of its dissatisfaction with the performance of the standardsetting agencies. Congress intended the Board to establish minimum\n114\n\n\x0cAccessibility Guidelines and Federal Lease Renewals\n\nrequirements assuring both a certain level of protection fo r the\nhandicapped and some uniformity in federal accessibility standards.\nId. at 4\xe2\x80\x945 (emphasis added).\n\nOur 1980 opinion thus recognized that the Board has been granted broad\nauthority and discretion to issue minimum accessibility guidelines that the des\xc2\xad\nignated agencies must follow in setting their respective accessibility standards\nunder the Act. We went on to elaborate upon the scope and purpose of the Board\xe2\x80\x99s\nguideline-setting authority: \xe2\x80\x9c As a \xe2\x80\x98minimum,\xe2\x80\x99 the Board must thus establish the\nlowest of a range of requirements that, in its view, will achieve the congressional\ngoal of \'ready access and use.\' \xe2\x80\x9d Id. at 5 (emphasis added). We added that \xe2\x80\x9c if\nthe Board is not permitted to require that all of certain facilities be accessible,\nit could be viewed as violating the terms of the Act.\xe2\x80\x9d Id. at 7. We further deter\xc2\xad\nmined that the Board\xe2\x80\x99s authority extends to issuing guidelines interpreting the\nAct\xe2\x80\x99s accessibility requirements as applied to leasing arrangements, including\ninterpretations determining the circumstances under which leased facilities are\ncovered by the Act\xe2\x80\x99s requirements. See id. at 14-17.\nThus, our 1980 opinion clearly rejected the contention now advanced again by\nUSPS (see USPS Letter at 2, 5, and 10) that the Board lacks basic statutory\nauthority to promulgate substantive guidelines covering matters such as the extent\nof statutory coverage (including guidelines respecting the coverage of leased facili\xc2\xad\nties).4 Nothing contained in the USPS submissions herein persuades us to alter\nthat conclusion.\nOur 1980 opinion also recognized that the 1976 amendments to the Act, see\nPublic Buildings Cooperative Use Act of 1976, Pub. L. No. 94\xe2\x80\x94541, \xc2\xa7\xc2\xa7201-203,\n90 Stat. 2505, 2507-08, \xe2\x80\x9c were plainly designed to bring leased buildings within\nthe coverage of the Act. . . . [W]e think it evident that Congress intended by\nits 1976 amendments to make the Act applicable to buildings leased by the United\nStates . . . . Since the congressional purpose is unambiguous, we do not believe\nthat [42 U.S.C. \xc2\xa7] 4155 is to be read to exclude leased buildings from the accessi\xc2\xad\nbility requirements of the Act.\xe2\x80\x9d 1980 Opinion at 16.5 Moreover, in responding\nto a contention that the guidelines had exceeded the Board\xe2\x80\x99s authority by applying\nthe Act\xe2\x80\x99s requirements to mere unilateral \xe2\x80\x9c extensions\xe2\x80\x9d of agency leases, we\nstated:\n4 Specifically, under USPS\xe2\x80\x99s reading of the Barriers Act, \xe2\x80\x9c the Board issues technical requirements and scoping,\nand the standard-setting agency\n. should set statutory coverage, effective dates, e tc \xe2\x80\x9d USPS Letter at 10 This\nrestrictive interpretation of the Board\xe2\x80\x99s authority to issue substantive guidelines is incompatible with the broad, discre\xc2\xad\ntionary authority we recognized m our 1980 opinion See 1980 Opinion at 4, 6\n5Our specific reference to 42 U.S.C. \xc2\xa74155 was in response to arguments by some agencies that Congress\xe2\x80\x99s\nfailure to modify that section as well in 1976 indicated that Congress did not intend the act of leasing itself\xe2\x80\x94\nas distinguished from design, alteration, or construction\xe2\x80\x94 to trigger any accessibility compliance action Section\n4155 provides that covered buildings \xe2\x80\x9c shall be designed, constructed, or altered in accordance with [governing acces\xc2\xad\nsibility standards],\xe2\x80\x9d without making explicit reference to leasing as such In rejecting this agency argument, we\nstated: \xe2\x80\x9c There is no doubt that Congress believed that its amendment o f the definition of the word \xe2\x80\x98building\xe2\x80\x99 was\nsufficient to bring leased buildings within the coverage of the Act \xe2\x80\x99\xe2\x80\x99 1980 Opinion at 16.\n\n115\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nWe see no sufficient basis for rejecting the Board\xe2\x80\x99s interpretation\nof the Act. The distinction between \xe2\x80\x9c renewals\xe2\x80\x9d and \xe2\x80\x9c extensions\xe2\x80\x9d\nis an uncertain one that is frequently not followed by the courts\nand there is absolutely no evidence that Congress intended to\nexclude \xe2\x80\x9c extensions\xe2\x80\x9d as technically defined by the Postal Service.\nId. at 17 (citations omitted).\n\nIn 1982, we advised the Justice Department\xe2\x80\x99s Civil Division that the Postal\nService\xe2\x80\x99s position that the Act permits federal agencies to lease buildings in their\nexisting conditions was a \xe2\x80\x9c permissible\xe2\x80\x9d interpretation of the Act that could prop\xc2\xad\nerly be defended in court (see infra Point II.B). The interpretation in question\nwould have permitted federal agencies to lease accessibility-noncompliant\nbuildings in their existing condition, and did not mandate the accessibility alter\xc2\xad\nation of existing buildings as a condition to leasing; rather, compliance with the\nAct\xe2\x80\x99s accessibility standards would have to be achieved only when the leased\nbuilding would otherwise be altered. We concluded that the Postal Service\ninterpretation was a \xe2\x80\x9c permissible\xe2\x80\x9d and certainly \xe2\x80\x9c defensible\xe2\x80\x9d one, although we\nalso acknowledged that the inquiry presented a \xe2\x80\x9c close question.\xe2\x80\x9d See Memo\xc2\xad\nrandum for J. Paul McGrath, Assistant Attorney General, Civil Division, from\nTheodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re:\nApplicability o f Architectural Barriers Act to Buildings Leased by the United\nStates Postal Service at 2, 16 (Oct. 21, 1982) ( \xe2\x80\x9c 1982 Opinion\xe2\x80\x9d ). Our opinion\n\nstated:\n[W]e believe that an entirely defensible position may be taken that\nthe Act does not obligate any federal department or service to alter\nall buildings leased after January, 1977 solely for the purpose of\nproviding access for the handicapped. We conclude that the Postal\nService regulations which require newly constructed leased\nbuildings and any remodeling of buildings leased after January,\n1977 to meet accessibility standards, and which further require, as\na matter of policy, that all newly acquired leased buildings be\naccessible whenever economically feasible represent a defensible\ninterpretation of the Act.\nId. at 12, 27.6\n\nAs discussed further below, however, the U.S. Court of Appeals for the Ninth\nCircuit subsequently rejected the Postal Service interpretation that was addressed\nin our 1982 opinion. See Rose v. United States Postal Serv., 774 F.2d 1355 (9th\nCir. 1984).\n6 O ur opinion went on to acknowledge that \xe2\x80\x9c Congress never expressly resolved whether leases o f existing space\nwere to be treated like new construction or like existing government-owned buildings \xe2\x80\x9d 1982 Opinion at 26.\n\n116\n\n\x0cAccessibility Guidelines and Federal Lease Renewals\n\nIn 1987, we opined on the applicability of the Act\xe2\x80\x99s accessibility requirements\nto leases originally entered into by federal agencies prior to January 1, 1977,\nand renewed subsequent to that date. See Memorandum for Charles R. Braun,\nAssistant General Counsel, United States Postal Service, from Charles J. Cooper,\nAssistant Attorney General, Office of Legal Counsel (Oct. 15, 1987) (\xe2\x80\x9c 1987\nOpinion\xe2\x80\x9d ). That opinion focused on the effective date provisions of the 1976\namendments, which state:\nThe amendment made by paragraph (1) of section 201 of this\nAct [altering the definition of building in section 4151(2) to include\nbuildings leased by federal agencies] shall not apply to any lease\nentered into before January 1, 1977. It shall apply to every lease\nentered into on or after January 1, 1977, including any renewal of\na lease entered into before such date which renewal is on or after\nsuch date.\nPublic Buildings Cooperative Use Act \xc2\xa7202. The Postal Service argued that the\nAct\xe2\x80\x99s accessibility requirements were not called into play by its \xe2\x80\x9c unilateral exer\xc2\xad\ncise,\xe2\x80\x9d subsequent to January 1, 1977, of a renewal option that extended the terms\nof a pre-1977 lease. We concluded that the subsequent renewal by the Postal\nService of leases entered into prior to January 1, 1977, does trigger an obligation\nto conform the leased facility to the Barriers Act\xe2\x80\x99s governing accessibility require\xc2\xad\nments. As we explained:\nWhile mindful of the Postal Services\xe2\x80\x99 legitimate concerns about\ncost, we conclude that Congress intended to extend the Barriers\nAct to renewals of pre-1977 leases of Postal Service facilities with\nfull knowledge of the expense involved and of the understandable\nreluctance of executive agencies to incur the costs of renovation.\nIn sum, we believe that the interpretation of \xe2\x80\x9c renewal\xe2\x80\x9d urged\nby the Postal Service as including only bilateral, and not unilateral,\nrenewal of leases is not consistent with the language, legislative\nhistory, or purpose of the 1976 amendments. In our opinion, Con\xc2\xad\ngress intended buildings subject to pre-1977 leases to be renovated\nin compliance with the Barriers Act when the Postal Service exer\xc2\xad\ncises options to renew those leases on or after January 1, 1977.\n1987 Opinion at 8-10 (footnotes omitted).\nAlthough our 1987 opinion was largely governed by the terms of the effective\ndate provisions contained in section 202 of the 1976 amendments, and focused\non the asserted distinctions between \xe2\x80\x9c bilateral\xe2\x80\x9d and \xe2\x80\x9c unilateral\xe2\x80\x9d leases, it also\n\n117\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nreflected the more expansive interpretation of the Act\xe2\x80\x99s accessibility obligations\nas to leases reflected in the Rose opinion. As we explained:\nMoreover, the legislative history of the Barriers Act reveals that\nCongress intended this remedial legislation to be liberally con\xc2\xad\nstrued. See Rose v. U.S. Postal Service , 774 F.2d 1355, 1358 (9th\nCir. 1984). In introducing the 1976 amendments, Representative\nGinn stated that the purpose of the legislation was to include within\nthe coverage of the Barriers Act \xe2\x80\x9c all Government-leased buildings\nintended for public use or in which the physically handicapped\nmight be employed.\xe2\x80\x9d 122 Cong. Rec. 33,511 (1976). The House\nreport likewise states that \xe2\x80\x9c all Government-leased buildings and\nfacilities\xe2\x80\x9d would be included. H.R. Rep. No. 1584, pt. 1, 94th\nCong., 2d Sess., 3 (1976). There is no suggestion that Congress\nintended to exempt almost 8,000 post offices simply because, as\nthe Postal Service Claims, leases are renewed unilaterally, rather\nthan bilaterally.\n1987 Opinion at 7.\nB.\nThe only published federal court opinion we have identified interpreting the\nBarriers Act\xe2\x80\x99s applicability to leases is Rose v. United States Postal Service.1 In\nRose, the Ninth Circuit rejected the same Postal Service contention that had been\nthe subject of our 1982 opinion \xe2\x80\x94 i.e., that a federal agency\xe2\x80\x99s entry into a lease\ndoes not in itself trigger an obligation to conform the leased premises to Barriers\nAct accessibility standards then in effect. The court framed the precise issue to\nbe decided as follows:\nThe Architectural Barriers Act . . . requires that buildings con\xc2\xad\nstructed or leased by the federal government be made accessible\nto handicapped persons. The issue before us is one of timing. The\nPostal Service argues that the Act requires leased buildings to\ncomply when they are altered for some reason other than handi\xc2\xad\ncapped access. Plaintiffs argue that the Government must require\ncompliance as a condition of the lease. The dispute centers on\n7 In a case involving the Government\xe2\x80\x99s potential liability for a sidewalk slip injury under the Federal Tort Claims\nAct, one U.S district court, citing the Rose opinion, has noted in dicta that \xe2\x80\x9c [t]he Architectural Barriers Act .\nrequires all buildings leased by the Postal Service after January 1, 1977, to be accessible to the handicapped.\xe2\x80\x9d\nWisner v. United States, 154 F.R D. 39, 44 n.2 (N D.N.Y. 1994) (emphasis added). Wisner did not provide any\nfurther analysis explaining or supporting this assertion.\n\n118\n\n\x0cAccessibility Guidelines and Federal Lease Renewals\n\nwhether leasing or alteration is the event that triggers the Govern\xc2\xad\nment\xe2\x80\x99s duty under the Act.\n\n774 F.2d at 1356-57 (emphasis added). The court proceeded to hold that leasing\nis the event that triggers accessibility compliance obligations and that the Postal\nService therefore had a duty, without reference to alterations, to make all buildings\nleased by it after January 1, 1977, accessible to the handicapped. Following an\nexhaustive analysis of the critical 1976 amendments to the Barriers Act, the court\nconcluded: \xe2\x80\x9c Ample evidence exists that Congress intended to close the loophole\nthrough which inaccessible buildings were leased without alteration.\xe2\x80\x9d Id. at 1360.\nIn reaching this conclusion, the court invoked the following statement by Rep\xc2\xad\nresentative Edgar during House Committee hearings as reflecting congressional\nintent on the leasing issue when Congress passed the 1976 amendments to the\nAct:\nThe Act [currently] excludes buildings and facilities leased by the\ngovernment which were not constructed or altered to governmentdrafted plans and specifications. This provision . . . excludes many\nbuildings which were leased to the government without substantial\nalteration. The amendment . . . will solve that problem by\nincluding such buildings.\nPublic Buildings Cooperative Use: Hearings on H.R. 15134 Before the Subcomm.\non Public Buildings and Grounds of the House Comm, on Public Works and\nTransportation, 94th Cong. 107-08 (1976) (prepared statement of Representative\n\nEdgar) (\xe2\x80\x9c House Hearings\xe2\x80\x9d ). During the same hearings, a representative of the\nthen Department of Health, Education and Welfare ( \xe2\x80\x9c HEW\xe2\x80\x9d ) similarly testified\nregarding the intended effect of the 1976 Barriers Act amendments: \xe2\x80\x9c If the lease\ndoes not involve construction or alteration, then the accessibility requirement does\nnot now apply. . . . The proposed revision would correct this condition to apply\nthe accessibility requirement to all leases.\xe2\x80\x9d Id. at 135 (prepared statement of Gerrit\nFremouw, Deputy Assistant Secretary for Facilities Engineering and Property\nManagement, HEW).\nThus, the only court opinion addressing the Barriers Act\xe2\x80\x99s applicability to fed\xc2\xad\neral agency leases under the 1976 amendments holds that federal agencies exe\xc2\xad\ncuting leases after January 1, 1977, \xe2\x80\x9c must require compliance [with Barriers Act\naccessibility standards] as a condition of the lease." 774 F.2d at 1356 (emphasis\nadded). On the other hand, the Rose opinion did not expressly consider the nar\xc2\xad\nrower question posed here: whether negotiated renewals of expiring post-1976\nleases should be treated as distinct leasing actions that trigger compliance obliga\xc2\xad\ntions defined by standards that have been revised after the date of the original\nlease. Insofar as the negotiated renewal of an expiring government lease may be\n119\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nequated with the \xe2\x80\x9c leasing\xe2\x80\x9d of the facility, however, the Rose opinion would\nappear to require that such renewals trigger an obligation to comply with gov\xc2\xad\nerning standards under the Act. See id. Further, inasmuch as our opinions have\nadopted the view that \xe2\x80\x9c renewals constitute new leases under the Act,\xe2\x80\x9d see 1982\nOpinion at 12, the Rose opinion supports the validity of the Board\xe2\x80\x99s proposed\nguideline.\nC.\nThe critical point of dispute between the Board and the USPS concerns the\nnegotiated renewal of agency leases first entered into subsequent to January 1,\n1977. The Barriers Board asserts that its guidelines may treat such negotiated\nrenewals (excluding the unilateral exercise of an existing renewal option) as dis\xc2\xad\ntinct leasing events that trigger an obligation to comply with superseding accessi\xc2\xad\nbility requirements in effect at the time of renewal \xe2\x80\x94 even, presumably, if the\nsame building was previously rendered accessible in full compliance with previous\naccessibility standards.8 The USPS counters, based in large part upon the effective\ndate language of the 1976 amendments, that such renewals do not trigger new\ncompliance obligations; in the USPS view, only first-time renewals of leases\nentered into prior to January 1, 1977, trigger such obligations. USPS Letter at\n5.9 According to the USPS arguments, requiring updated accessibility modifica\xc2\xad\ntions when an agency enters into a subsequent lease for a building previously\nrendered accessible would be redundant, excessively burdensome, and unsupported\nby the provisions and purpose of the Act. See USPS Letter at 7-8; USPS Supple\xc2\xad\nment at 2, 4.\nInitially, we reject the contention that, by expressly providing that renewals of\npre-1977 leases are subject to compliance obligations, section 202 of the 1976\namendments implicitly establishes that renewals of post-1917 leases are exempt\nfrom such obligations. See USPS Letter at 5; USPS Supplement at 1. Rather,\nthe explicit provision covering renewals of pre-1977 leases was necessary to avoid\nany possible misunderstanding that buildings first leased prior to 1977 \xe2\x80\x94 which\nwere otherwise wholly exempted from coverage under the amendments \xe2\x80\x94 were\nleft permanently exempt, or \xe2\x80\x9c grandfathered,\xe2\x80\x9d from accessibility compliance\nrequirements. Construing section 202 as containing an implicit restriction on the\nBoard\xe2\x80\x99s authority to enhance accessibility requirements on the basis of future post1977 leasing actions \xe2\x80\x94 i.e., negotiated lease renewals \xe2\x80\x94 would be inconsistent\nwith the expansive remedial objectives of the Act and its 1976 amendments.10\n8 In this regard, the Board also emphasizes that such compliance obligations may be waived under appropriate\ncircumstances to avoid unjust and excessive burdens upon the leasing agency See Board Supplement, Attachment\nat 3.\n9 USPS acknowledges that \xe2\x80\x9c a lease when first occupied must be retrofitted to meet the current regulations.\xe2\x80\x9d\nUSPS Letter at 4.\n10See, e.g.. House Hearings at 107-08, 135, 1987 Opinion at 1.\n\n120\n\n\x0cAccessibility Guidelines and Federal Lease Renewals\n\nThe amended Act simply does not address whether negotiated renewals of\nexpiring post-1976 leases should require updated accessibility modifications.\nRather, that narrow question is the very kind of unspecified, interstitial matter\nthat is properly left to the discretion of the agency charged with primary responsi\xc2\xad\nbility for such interpretation \xe2\x80\x94 here, the Barriers Board. See, e.g., Precious Metals\nAssociates, Inc. v. CFTC, 620 F.2d 900, 911 (1st Cir. 1980) (agency rulemaking\nproceedings \xe2\x80\x9c are designed to fill in the interstices of a statute\xe2\x80\x9d ); Public Serv.\nCo. v. United States Nuclear Regulatory Comm\xe2\x80\x99n, 582 F.2d 77, 82 (1st Cir.) (\xe2\x80\x9c In\na regulatory scheme where substantia] discretion is lodged with the administrative\nagency charged with its effectuation, it is to be expected that the agency will\nfill in the interstices left vacant by Congress.\xe2\x80\x9d ), cert, denied, 439 U.S. 1046\n(1978). We have previously acknowledged that the Board \xe2\x80\x9c has a great deal of\ndiscretion\xe2\x80\x9d in fashioning guidelines to effectuate the Act\xe2\x80\x99s mandate for maximum\naccessibility, see 1980 Opinion at 4, and the interstitital guidelines proposed here\nfall within the broad authority conferred on the Board."\nWe recognize that the text of the Act does not specifically require buildings\nleased by federal agencies after 1976 to be retrofitted to comply with intervening\nchanges in the accessibility standards every time those leases are renewed. See\n42 U.S.C. \xc2\xa74155 (buildings \xe2\x80\x9c designed, constructed, or altered\xe2\x80\x9d must comply with\ngoverning standard under the Act). The same can be said, however, with regard\nto entering into the initial lease of an existing building, which similarly does not\nconstitute the \xe2\x80\x9c design[],\xe2\x80\x9d \xe2\x80\x9c construct[ionl,\xe2\x80\x9d or \xe2\x80\x9c alteration]\xe2\x80\x9d of a building that\nare the only events explicitly mentioned in the provisions governing compliance\nwith the respective accessibility standards. See 42 U.S.C. \xc2\xa74155. But that basic\nproposition \xe2\x80\x94 i.e., that the act of leasing triggers the agency\xe2\x80\x99s duty to render a\nfacility accessible under the Act\xe2\x80\x99s standards \xe2\x80\x94 is both conceded by USPS itself,\nsee USPS Letter at 3-4 (\xe2\x80\x9c We agree that a lease when first occupied must be\nretrofitted to meet the current regulations\xe2\x80\x9d ), and consistent with the Rose opinion,\nsee 774 F.2d at 1356. Thus, the guidelines\xe2\x80\x99 application to post-1976 renewal leases\nis merely an incremental administrative application of the broader established prin\xc2\xad\nciple that leasing actions may trigger accessibility compliance obligations under\nthe Act.\n11 We acknowledge the USPS argument that the proposed leasing guideline would in one respect subject govern\xc2\xad\nment-leased buildings to stricter accessibility standards than government-purchased buildings\xe2\x80\x94 because the latter\nwould be subjected to updated retrofit obligations only in the event o f alterations, whereas leased buildings would\nbe subjected to such obligations in the event o f a lease renewal as well as in the case of alterations See USPS\nLetter at 6 -7 ; USPS Supplement at 2 Although USPS contends that this disparity ts contrary to congressional intent\nin enacting the Act and its 1976 amendments, we find no evidence that Congress considered, let alone resolved,\nsuch distinctions regarding the details and timing o f compliance obligations in the case of federally leased buildings\nIt is clear, however, that Congress intended the Act to be liberally construed to insure the broadest feasible accessi\xc2\xad\nbility for persons with disabilities, including accessibility to government-leased buildings See 42 U.S C. \xc2\xa7 \xc2\xa7 4 1 5 2 4154a; House Hearings at 107-08, 135; Rose, 774 F.2d at 1358\xe2\x80\x9459;1987 Opinion at 5 Accordingly, we do not\nbelieve that the Board\xe2\x80\x99s proposed guideline is inconsistent with the congressional intent underlying the Act\xe2\x80\x99s accessi\xc2\xad\nbility requirements.\n\n121\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nWe think it is especially pertinent, moreover, that the Act requires that standardsetting agencies \xe2\x80\x9c shall prescribe such standards for the design, construction, and\nalteration of its buildings to insure whenever possible that physically handicapped\npersons will have ready access to, and use of, such buildings.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 4154a\n(emphasis added). That sweeping phrase, \xe2\x80\x9c to insure whenever possible,\xe2\x80\x9d indicates\nthat Congress intended to authorize broad standard-setting authority that would\nmaximize accessibility compliance within the statutory framework. It is therefore\npermissible, if not mandatory, for the Board to be governed by that strong admoni\xc2\xad\ntion in discharging its obligation to establish minimum guidelines and require\xc2\xad\nments for Barriers Act accessibility standards. See 29 U.S.C. \xc2\xa7 792(b)(3)(A). Given\nthese considerations, and given that we have recognized that the negotiated\nrenewal of an expiring lease is indistinguishable from the execution of a new\nlease for purposes of the Act, we conclude that imposing a requirement for\nupdated compliance with governing accessibility standards upon an agency\xe2\x80\x99s nego\xc2\xad\ntiated renewal of a post-1976 lease falls within the substantial discretion allotted\nto the Board in establishing minimum guidelines for such standards under the\nBarriers Act. Such guidelines reflect a reasonable interpretation of the statutory\nrequirements, which is entitled to substantial deference.12\nCONCLUSION\nTaking into account all the foregoing considerations, we conclude that the Board\nwould be acting within its statutory authority under 29 U.S.C. \xc2\xa7 792(b) in adopting\nGuidelines requiring federal agencies to comply with accessibility standards then\nin effect when they enter or renew building leases, including negotiated renewals\nof leases originally undertaken by the Federal Government subsequent to 1976.\nRANDOLPH D. MOSS\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n12 As one court characterized the role o f Chevron deference in this same context. \xe2\x80\x9c Under Chevron, an agency\xe2\x80\x99s\ninterpretation o f ambiguous statutory language is entitled to deference because of the agency\xe2\x80\x99s delegated authority\nto adm inister the s ta tu te \xe2\x80\x9d PVA v. D.C. A rena L.P., 117 F 3 d 579, 585 (D C . Cir. 1997), cert denied, 523 U S\n1003 (1998). Although the standard-setung agencies such as GSA and the USPS have their own authority to set\nstandards under the Act, the Board alone is charged with statutory responsibility to develop and issue the minimum\nsubstantive guidelines and requirements that govern those agencies in their issuance of the standards, as well as\nthe authority to ensure compliance with those standards See 29 U.S.C \xc2\xa7 792(b)(1), (3)(A). In that distinct capacity,\nthe Board\xe2\x80\x99s interpretative judgm ents are entitled to appropriate deference.\n\n122\n\n\x0c'


b"The Federalism Accountability Act\nProvisions of the proposed Federalism Accountability Act that would alter the rules under which courts\ndetermine whether Congress has preempted state law by statute or authorized preemption by regula\xc2\xad\ntion could have far reaching and unintended consequences and should only be enacted if Congress\ndetermines that existing preemption doctrine has systematically frustrated congressional intent and\nthat statutory rules of construction would produce better results.\nProvisions o f the bill that would instruct courts to resolve ambiguities in federal law in favor of\npreserving the authority of the states could frustrate the intentions of Congress and rulemaking\nagencies and should not be enacted\n\nJuly 14, 1999\nS t a t e m e n t B e f o r e t h e C o m m it t e e o n G o v e r n m e n t a l A f f a ir s\nU n it e d S t a t e s S e n a t e\n\nI am honored to be here today to testify regarding S. 1214, the Federalism\nAccountability Act of 1999. Mr. Spotila, representing the Office of Information\nand Regulatory Affairs of the Office of Management and Budget, has discussed\nthe Administration\xe2\x80\x99s concerns with section 7 of the bill, which would require Fed\xc2\xad\neral agencies to prepare and publish federalism assessments for certain Federal\nrules. My remarks will focus on section 6, which would establish rules of\nconstruction relating to statutory and regulatory preemption.\nSection 6 would establish new rules of construction relating to Federal preemp\xc2\xad\ntion of State law. Sections 6(a) and 6(b) would alter the rules under which courts\ncurrently determine whether Congress has preempted State law by statute or\nauthorized preemption of State law by regulation. Section 6(c) would operate more\nbroadly, requiring that any ambiguity in the Federalism Accountability Act or in\nany other Federal law be construed in favor of preserving the authority of the\nStates and the people. Although we are still evaluating the potential implications\nof these provisions, we believe that each raises questions that warrant careful\nconsideration.\nUnder current Supreme Court doctrine, the preemptive force of a Federal statute\nis determined by examining Congress\xe2\x80\x99s intentions with respect to preemption.'\nCongressional intent to preempt can be stated explicitly, in the terms of a statutory\nprovision addressing preemption. This is commonly referred to as \xe2\x80\x9c express\npreem ption.\xe2\x80\x9d In addition, congressional intent can also be conveyed implicitly,\nthrough the establishment of Federal law that conflicts with State law, commonly\nknown as \xe2\x80\x9c conflict preemption,\xe2\x80\x9d or that occupies an entire field and leaves no\nroom for State lawmaking, commonly known as \xe2\x80\x9c field preemption.\xe2\x80\x9d Conflict\npreemption occurs where Federal law and State law are in direct conflict or where\n1 For a general summary o f Supreme Court doctnne concerning the preemption of State law by Federal statutes,\nsee English v General Elec. Co., 496 U S 72, 79 (1990) Accord Boggs v. Boggs, 520 U S . 833, 839-41 (1997)\n\n172\n\n\x0cThe Federalism Accountability Act\n\nState law stands as an obstacle to the achievement of Federal objectives. Field\npreemption occurs where the creation of a pervasive system of Federal regulation\nmakes it reasonable to infer that Congress intended to disallow supplemental State\nlaw measures or where Congress legislates in an area where the Federal interest\nis so dominant that a Federal system can be presumed to displace State laws on\nthe same subject. The doctrine of field preemption has formed the basis for Federal\npreemption of State law in a number of important areas, including nuclear safety,\ncollective bargaining, and alien registration.2\nSection 6(a) would change the rules under which courts and agencies infer\ncongressional intent to preempt by statute. Under section 6(a), no Federal statute\nenacted after the effective date of the Federalism Accountability Act would pre\xc2\xad\nempt State law unless the statute contained an express statement of Congress\xe2\x80\x99s\nintent to preempt or there was a \xe2\x80\x9c direct conflict\xe2\x80\x9d between the Federal statute\nand State law so that the two could not \xe2\x80\x9c be reconciled or consistently stand\ntogether.\xe2\x80\x9d This provision would profoundly alter the Federal courts\xe2\x80\x99 longstanding\napproach to preemption by Federal statute. It would apparently abolish the doctrine\nof field preemption and impose significant new limits on conflict preemption.3\nThe findings section of the Act notes that this change is made necessary by\nFederal court preemption rulings that have applied current doctrine to produce\nresults \xe2\x80\x9c contrary to or beyond the intent of Congress.\xe2\x80\x9d S. 1214, \xc2\xa72(5). It is not\nclear, however, which applications of existing preemption doctrine are viewed as\nhaving misinterpreted the intent of Congress. Our review indicates that Federal\ncourt decisions involving field preemption and conflict preemption generally have\ndemonstrated a strong commitment to the avoidance of preemption that is not\nnecessary to the achievement of clear statutory objectives. The Supreme Court\nhas determined, for example, that Federal law occupies the field of nuclear safety\nregulation, but does not preempt State regulation of nuclear utilities that does not\nbear directly on safety; and that the National Labor Relations Act occupies the\nfield of collective bargaining, but not the field of labor relations in general.4\nIn addition, under both conflict and field preemption doctrines, the burden that\nmust be bome by the proponent of preemption varies with the setting. In areas\nof traditional State primacy, the courts require a heightened showing of congres\xc2\xad\nsional intent to preempt. Indeed, the Supreme Court has stated that \xe2\x80\x9c [w]hen Con\xc2\xad\ngress legislates in a field traditionally occupied by the States, \xe2\x80\x98we start with the\n2 See Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. C om m \xe2\x80\x99n, 461 U.S 190, 21213 (1983) (nuclear safety), Metropolitan Life Ins. Co. v Massachusetts, 471 U.S. 724, 750-51 (1985) (collective\nbargaining); Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (registration o f aliens).\n3 The Supreme Court has stated that conflict preemption and field preemption should not be viewed as \xe2\x80\x9c rigidly\ndistinct\xe2\x80\x9d categories and has suggested that \xe2\x80\x98\xe2\x80\x98Field preemption may be understood as a species of conflict preemption,\xe2\x80\x9d\nsince State law operating within a preempted field can be seen to conflict with Congress\xe2\x80\x99s intent to exclude Slate\nregulation. English v. General E le c , 496 U S at 79 n 5 Section 6(a) of S 1214, by confining implied preemption\nto situations involving \xe2\x80\x9c a direct conflict\xe2\x80\x9d between irreconcilable or inconsistent directives, would appear to foreclose\nrecognition o f field preemption as a subclass of conflict preemption for purposes of section 6 of the bill.\n4 See Pacific Gas & Elec., 461 U S at 212-13 (limited preemption respecting nuclear safety); Metropolitan Life,\n471 U S . at 750-51 (limited preemption respecting collective bargaining)\n\n173\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nassumption that the historic police powers of the States were not to be superseded\nby the Federal Act unless that was the clear and manifest purpose of Congress.\xe2\x80\x99 \xe2\x80\x9d 5\nMore importantly, it seems far from clear that increased reliance on express\npreemption provisions in Federal statutes will produce better results. It can be\nextremely difficult to craft express preemption provisions that produce the desired\nbalance between Federal and State authority. Detailed express preemption provi\xc2\xad\nsions may be prone to overinclusiveness, displacing State law where such displace\xc2\xad\nment is not truly necessary, or underinclusiveness, undermining the effectiveness\nof Federal law by failing to displace antithetical State law. Moreover, the problems\nwith such express preemption provisions are likely to be most acute where the\nstakes are highest \xe2\x80\x94 that is, where Congress enacts legislation that applies broadly\nand over a long period of time. Indeed, some of the harshest criticism of Federal\npreemption has focused on perceived excesses of preemption under express statu\xc2\xad\ntory provisions contained in such legislation. One noteworthy example is section\n514(a) of the Employee Retirement Income Security Act of 1974 (\xe2\x80\x9c ERISA\xe2\x80\x9d ),\n29 U.S.C. \xc2\xa7 1144(a) (1994). That provision, which expressly preempts most State\nlaws that \xe2\x80\x9c relate to\xe2\x80\x9d employee benefit plans covered by ERISA, has been criti\xc2\xad\ncized for cutting too wide a swath through State law governing employee benefit\nplans.6\nIt is also important to note that enactment of S. 1214 would not prevent a later\nCongress from instructing that the preemptive effects of a particular statute should\nbe determined, notwithstanding section 6(a), by reference to traditional implied\npreemption doctrines. Indeed, one significant set of interpretive problems that\nwould likely arise in the implementation of this provision \xe2\x80\x94 and of the other rules\nof construction found in section 6 \xe2\x80\x94 would involve disputes as to whether Con\xc2\xad\ngress implicitly intended to exempt particular statutes from section 6 of the Fed\xc2\xad\neralism Accountability Act. For example, if a subsequent Congress enacted a law\nthat established a pervasive Federal regulatory regime and that demonstrated a\nclear, though not express, intention to preempt, courts might well conclude that\nthe later enactment implicitly repealed section 6(a)\xe2\x80\x99s limitations on field and con\xc2\xad\n5 California v. AR C America Corp, 490 U.S. 93, 101 (1989) (quoting Rice v Santa Fe Elevator Corp , 331\nU S 218, 230 (1947)) Conversely, in fields that implicate certain special and well-established Federal interests,\nsuch as the protection o f Indian self-government, the test for determining whether State authority has been displaced\nis less exacting See, e.g.. California v Cabazon Band o f Mission Indians, 480 U.S 202, 215 (1987) (States, in\nthe absence of congressional authorization, can regulate Indian conduct or Indian lands inside Indian country only\nin \xe2\x80\x9c exceptional circum stances\xe2\x80\x9d ); White Mountain Apache Tribe v. Bracker, 448 U S 136, 143 (1980) ( \xe2\x80\x9c The tradition\nof Indian sovereignty over the reservation and tribal members must inform the determination whether the exercise\no f state authority has been pre-empted by operation o f federal law .\xe2\x80\x9d ).\n6 See, e g ., Jeffrey E. Shuren, Legal Accountability For Utilization Review in ERISA Health Plans, 77 N.C L\nRev 731, 772 (1999) ( \xe2\x80\x9c ERISA \xe2\x80\x99s preemption provisions combined with the limited remedies available under ERISA\nfor breach o f fiduciary duty have shielded [entities that perform utilization review] as well as third-party payers,\nfrom the consequences o f [utilization review] decisions.\xe2\x80\x9d ), Jack K Kilcullen, Groping fo r the R eins\xe2\x80\xa2 ERISA, HMO\nMalpractice and Enterprise Liability, 22 A m . J L & Med. 7, 9 -1 0 (1996) (preemption under ERISA \xe2\x80\x9c interferes\nwith judicial efforts to establish corporate liability\xe2\x80\x9d and prevents States from undertaking needed efforts to\n\xe2\x80\x9c reformulat[e] traditional concepts of medical malpractice to reach HMOs\xe2\x80\x9d ); see also Andrews-Clarke v Travelers\nIns. Co., 984 F Supp 49, 63 (D. Mass 1997) (\xe2\x80\x9c Under any criterion .\nthe shield of near absolute immunity\nnow provided by ERISA simply cannot be justified.\xe2\x80\x9d ).\n\n174\n\n\x0cThe Federalism Accountability Act\n\nflict preemption. Such difficult interpretive issues would introduce a form of\nconfusion not present under current Supreme Court preemption doctrine.\nSection 6(b)\xe2\x80\x99s proposed changes to current regulatory preemption doctrine raise\nconcerns similar to those raised by section 6(a)\xe2\x80\x99s proposed changes to current\nstatutory preemption doctrine. The Supreme Court has stated that \xe2\x80\x9c in proper cir\xc2\xad\ncumstances, [a Federal] agency may determine that its authority is exclusive and\npre-empt[] any state efforts to regulate in the forbidden area,\xe2\x80\x9d City o f New York\nv. FCC, 486 U.S. 57, 64 (1988). In describing these \xe2\x80\x9c proper circumstances,\xe2\x80\x9d\nthe Court has rejected the notion that the rulemaking agency must demonstrate\nthat Congress specifically considered the question of regulatory preemption and\ndecided to confer this authority on the rulemaking agency. Justice White, writing\nfor a unanimous Court in City o f New York, described the test of agency authority\nto preempt by regulation in the following terms:\nIt has long been recognized that many of the responsibilities con\xc2\xad\nferred on federal agencies involve a broad grant of authority to rec\xc2\xad\noncile conflicting policies. Where this is true, the Court has cau\xc2\xad\ntioned that even in the area of pre-emption, if the agency\xe2\x80\x99s choice\nto pre-empt \xe2\x80\x98\xe2\x80\x98represents a reasonable accommodation of conflicting\npolicies that were committed to the agency\xe2\x80\x99s care by the statute,\nwe should not disturb it unless it appears from the statute or its\nlegislative history that the accommodation is not one that Congress\nwould have sanctioned.\xe2\x80\x9d United States v. Shimer, 367 U.S. 374,\n383 (1961).\nCity o f New York, 486 U.S. at 64.\n\nSection 6(b) would apparently alter the Supreme Court standard for determining\nwhether rulemaking agencies possess the authority to issue preemptive regulations.\nUnder this provision, a Federal rule issued after the effective date of the Fed\xc2\xad\neralism Accountability Act could not preempt State law unless (1) regulatory\npreemption was \xe2\x80\x9c authorized by the statute under which the rule is promulgated\xe2\x80\x9d\nand the regulation was accompanied by a statement in the Federal Register explic\xc2\xad\nitly stating that such preemption was intended, or (2) the regulation directly con\xc2\xad\nflicted with State law.\nIt is difficult to predict how courts might interpret the reference to statutory\nauthorization in section 6(b)(1). Opponents of new regulations would likely argue\nthat section 6(b)(1) is quite limited \xe2\x80\x94 that statutory authorization to issue preemp\xc2\xad\ntive regulations, in this context, can only mean specific and express authorization\nto issue such rules. (Rulemaking agencies would need some sort of statutory\nauthorization to promulgate regulations that preempt by virtue of a direct conflict\nunder section 6(b)(2); the omission of any reference to authorization in that provi\xc2\xad\nsion might be cited as evidence that the authorization referred to in section 6(b)(1)\n175\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nmust be specific and explicit.) Moreover, opponents of new regulations would\nalso be likely to argue that this restrictive reading of section 6(b)(1) must prevail\nso long as it is merely plausible, since ambiguities in the Act, would have to\nbe resolved in favor of the States and the people by virtue of section 6(c).\nThese questions concerning the requirements for issuing preemptive regulations\nunder section 6(b)(1) would, at a minimum, engender significant confusion and\ncould produce a substantial volume of litigation. Uncertainty and the threat of\nlitigation could be especially serious for agencies that are called upon to update\nand revise complex regulations under longstanding statutes that lack specific and\nexpress authorizations to issue preemptive rules. The Occupational Safety and\nHealth Administration ( \xe2\x80\x9c OSHA\xe2\x80\x9d ), for example, could confront arguments that\nthe Occupational Safety and Health Act, although construed in the past to\nauthorize the issuance of preemptive regulations, lacks the required statutory state\xc2\xad\nment and that new OSHA rules, therefore, can only preempt State law where\nthe new OSHA requirement directly conflicts with State law.7\nUnder section 6(c), any ambiguity in S. 1214, or \xe2\x80\x9c in any other law of the\nUnited States\xe2\x80\x9d \xe2\x80\x94 predating or postdating the Federalism Accountability Act \xe2\x80\x94\nwould \xe2\x80\x9c be construed in favor o f preserving the authority of the States and the\npeople.\xe2\x80\x9d The potential implications of an instruction of this sweeping scope are\ndifficult to assess, although the potential for far reaching and unanticipated con\xc2\xad\nsequences is pervasive. It is unclear how this provision might affect the reach\nof Federal statutes and regulations. How would section 6(c) apply to statutory\nand regulatory language that, although ambiguous on its face, has been clarified\nby case law or administrative interpretation predating the enactment of section\n6(c)? Would section 6(c) require adoption of the narrowest plausible reading of\nvirtually every statutory or regulatory assertion of Federal power on grounds that\nsuch a reading operates to preserve the greatest authority for the States and the\npeople? Special difficulties would arise in the interpretation of Federal laws that\nlimit State authority in ways that arguably enhance the authority of the people.\nHow, for example, would section 6(c) affect the operation of the Dormant Com\xc2\xad\nmerce Clause, which forbids States from imposing certain burdens on interstate\ncommerce in areas where Congress has not acted affirmatively to authorize State\nactivity? Would ambiguities concerning the scope of a Federal law authorizing\nState regulation be resolved in favor the authority of the States to regulate or\nthe authority of the people to engage in interstate commerce in an environment\nfree of State regulation? The breadth and generality of section 6(c) create a risk\n7 In G ade v. N ational Solid Wastes M anagement A s s \xe2\x80\x99n, 505 U S. 88 (1992), eight members of the Court agreed\nlhat no express statutory provision invests O SH A regulations with the power to preempt \xe2\x80\x9c nonconflicting state law s\xe2\x80\x9d\n(that is, supplem ental State-law requirements applicable to federally regulated practices). Id at 96-104 (plurality\nopinion o f O \xe2\x80\x99Connor, J.). see id at 117-18 (Souter, J., dissenting). Nevertheless, a majority concluded that OSHA\nregulations preempt such nonconflicting State laws, with the plurality basing preemption on the conflict between\nsuch State laws and C ongress\xe2\x80\x99s clear intention to ensure that employees and employers are subject to \xe2\x80\x9c only one\nset o f regulations.\xe2\x80\x9d Id at 99, see id at 109 (Kennedy, J., concurring in the judgment under an express preemption\nrationale).\n\n176\n\n\x0cThe Federalism Accountability Act\n\nthat unintentional ambiguities in Federal statutes and regulations, with tenuous\nconnections to the balance between Federal and State power, could be exploited\nin unforeseen ways to frustrate the intentions of Congress and rulemaking agen\xc2\xad\ncies.\nIn short, section 6 of S. 1214, as drafted, would have far reaching effects. Sec\xc2\xad\ntions 6(a) and 6(b) would significantly alter the rules under which courts determine\nthe preemptive effects of Federal statutes and regulations. In our view, systematic\nreform of this nature would only be warranted if Congress were convinced that\nexisting preemption doctrine systematically operates to frustrate congressional\nintent (and that statutory rules of construction would produce better results). If,\non the other hand, Congress\xe2\x80\x99s concerns about current preemption doctrine derive\nfrom particular cases or classes of cases, any statutory reform should be tailored\nto correct the results in those cases or classes of cases. The potential implications\nof section 6(c) are considerably more pervasive. Section 6(c) has the potential\nto frustrate congressional intent and agency undertakings wherever questions arise\nas to the legal allocation of power between the Federal government and the States.\nIt should be eliminated.\nRANDOLPH D. MOSS\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n177\n\n\x0c"


b'Applicability of Statutes Prohibiting Strikes Against the\nFederal Government to Cooperative Extension Agents\nS tatu tes p ro h ib itin g strik es by federal e m p lo y ees ag ain st th e federal g o v e rn m e n t d o not\na p p ly w h e re C o o p e ra tiv e E x te n sio n A g e n ts p a rtic ip a te in a strike ag ain st th eir u n iv e r\xc2\xad\nsity em p lo y er.\n\nMarch 20, 1980\nM EM ORANDUM OPINION FOR T H E ACTIN G DIRECTOR,\nEX ECU TIV E O F FIC E FOR U.S. ATTORNEYS\nThis responds to the questions raised in the letter from the United\nStates Attorney for the District of Hawaii, relating to the applicability\nof the statutes prohibiting strikes by employees of the federal govern\xc2\xad\nment to certain individuals employed in the Cooperative Extension\nService at the University of Hawaii. The Assistant General Counsel of\nthe Department of Agriculture concluded in 1976 that the statutes in\nquestion operate to prohibit these individuals from joining a strike\nagainst the University. Although the matter is not free of doubt, we\nbelieve that Congress did not intend the no-strike statutes to reach this\nsituation.\nSection 7311 of Title 5 of the United States Code provides as\nfollows:\n\xc2\xa7 7311. Loyalty and striking\nAn individual may not accept or hold a position in the\nGovernment o f the United States or the government of the\nDistrict of Columbia if he\xe2\x80\x94\n(1) advocates the overthrow of our constitutional form\nof government;\n(2) is a member of an organization that he knows advo\xc2\xad\ncates the overthrow of our constitutional form of govern\xc2\xad\nment;\n(3) participates in a strike, or asserts the right to strike,\nagainst the Government o f the United States or the govern*\nment of the District of Columbia; or\n(4) is a member of an organization of employees of the\nGovernment of the United States or of individuals em\xc2\xad\nployed by the government of the District of Columbia\nthat he knows asserts the right to strike against the G ov\xc2\xad\nernment of the United States or the government of the\nDistrict of Columbia. [Emphasis added.]\n506\n\n\x0cConduct forbidden by 5 U.S.C. \xc2\xa77311 is made criminal by 18 U.S.C.\n\xc2\xa7 1918.\nThe position of the Department of Agriculture\xe2\x80\x99s Assistant General\nCounsel is as follows: First, that Cooperative Extension Agents hold \xe2\x80\x9ca\nposition in the Government of the United States\xe2\x80\x9d; and second, that\ntheir participation in a strike of university employees would be a strike\n\xe2\x80\x9cagainst the Government of the United States.\xe2\x80\x9d The Assistant General\nCounsel argues that the coverage of the no-strike statutes is very broad,\nand that they apply to \xe2\x80\x9call forms of Federal employment.\xe2\x80\x9d He ac\xc2\xad\nknowledges that Cooperative Extension Agents at the University of\nHawaii are \xe2\x80\x9cuniversity employees,\xe2\x80\x9d but points out that at the same time\nthey hold federal Schedule A appointments in the Extension Service,\nand also are covered by the federal Civil Service Retirement System.1\nBecause Cooperative Extension Agents hold \xe2\x80\x9ca form of Federal em\xc2\xad\nployment,\xe2\x80\x9d they are within the class covered by the no-strike statutes.\nIn addition, he concludes that \xe2\x80\x9c [b]ecause the extension activities are\nsimultaneously State and Federal activities, striking against these activi\xc2\xad\nties would be a simultaneous strike against the State and Federal gov\xc2\xad\nernments.\xe2\x80\x9d Therefore, Cooperative Extension employees who partici\xc2\xad\npate in a strike against the University of Hawaii are subject to \xe2\x80\x9closs of\ntheir Federal appointment and criminal prosecution.\xe2\x80\x9d\nIt is a well-established principle that where criminal penalties are\ninvolved, as they are here, the type of conduct proscribed by a statute\nmust be narrowly construed. United States v. Resnick, 299 U.S. 207, 209\n(1936); United States v. Hartwell, 73 U.S. (6 Wall) 385, 395 (1867). In\nUnited States v. McNinch, 356 U.S. 595 (1958), the question presented\nwas whether a lending institution\xe2\x80\x99s application to the Federal Housing\nAdministration for credit insurance was a \xe2\x80\x9cclaim against the Govern\xc2\xad\nment\xe2\x80\x9d within the meaning of the False Claims Act. In concluding that\nit was not, the Supreme Court stated:\n[I]t must be kept in mind . . . that in determining the\nmeaning of the words \xe2\x80\x9cclaim against the Government\xe2\x80\x9d\nwe are actually construing the provisions of a criminal\nstatute. Such provisions must be carefully restricted, not\nonly to their literal terms but to the evident purpose of\nCongress in using those terms, particularly where they are\nbroad and susceptible to numerous definitions.\n1 Cooperative Extension Agents are appointed \xe2\x80\x9cto implement cooperative federal-state extension\nprograms for agriculture and home economics under the Smith-Lever Act (7 U.S.C. \xc2\xa7\xc2\xa7341-349).\xe2\x80\x9d\nAuthority for these appointments is found in 5 C.F.R. \xc2\xa7 213.3113(aK0> which authorizes Agriculture\nto grant appointments in the excepted service to persons employed in field positions, the work of\nwhich is financed jointly by Agriculture and \xe2\x80\x9ccooperating non-federal entities.\xe2\x80\x9d We understand that\nCooperative Extension Agents are generally already employed by the state when they receive their\nSchedule A appointments, and that they continue afterwards to be paid by the state and governed by\nrules and requirements applicable to state employees.\n\n507\n\n\x0c356 U.S. at 598 (citations omitted). See also United States v. Katz, 271\nU.S. 354, 362 (1926) (\xe2\x80\x9cGeneral terms descriptive of a class of persons\nmade subject to a criminal statute may and should be limited where\nliteral application of the statute would lead to extreme or absurd results,\nand where the legislative purpose . . . would be satisfied by a more\nlimited interpretation\xe2\x80\x9d); United States ex rel. Marcus v. Hess, 317 U.S.\n537, 542 (1943) (\xe2\x80\x9cwe must give [a criminal statute] careful scrutiny lest\nthose be brought within its reach who are not clearly included. . .\nEven if Cooperative Extension Agents are considered federal em\xc2\xad\nployees for some purposes, we find nothing in the terms of the no-strike\nstatutes or in their legislative history suggesting that Congress intended\nthem to apply in situations where the object of a strike is a non-federal\nentity or activity being supported by federal funds. Section 7311 of\nTitle 5 and \xc2\xa7 1918 of Title 18 were enacted in 1955 (Pub. L. 330, 84th\nCong., 1st Sess.), and consolidated several provisions in existing federal\nlaw relating to disloyalty and striking against the government. These\nexisting no-strike provisions were found in \xc2\xa7 612 of the Housing Act of\n1949, \xc2\xa7 305 of the Labor-Management Relations Act of 1947, and in\nsuccessive appropriations riders beginning with the Third Urgent Defi\xc2\xad\nciency Appropriations Act of 1946, 60 Stat. 269. See H.R. Rep. No.\n1152, 84th Cong., 1st Sess. 2 (1955). The hearings in the House on the\n1955 legislation show Congress\xe2\x80\x99 understanding of these laws as intended\nto protect the federal employer, and to prevent the disruption of federal\ngovernmental functions. For example, Congressman Bennett, who\nintroduced the legislation in the House, told the Committee that they\ndid not \xe2\x80\x9cprohibit a government employee with part-time private em\xc2\xad\nployment from striking against his private employer.\xe2\x80\x9d To Prohibit the\nEmployment by the Government o f Persons who are Disloyal: Hearings\nbefore the House Committee on Post Office and Civil Service, 84th Cong.,\n1st Sess. 10 (1955). There is no indication of an intention to extend the\nstatutory prohibition on striking to all public employees working on\nfederally funded projects\xe2\x80\x94as, for example, was accomplished explicitly\nwith respect to certain political activity in \xc2\xa7 12 of the 1948 Hatch Act.\nSee Oklahoma v. Civil Service Commission, 330 U.S. 127 (1947).\nWhen Cooperative Extension Agents strike against their university\nemployer, they do so as employees of the University and not as em\xc2\xad\nployees of the federal government. While their participation in a strike\nmay in some cases result in the disruption of a federal activity, we do\nnot think Congress intended the federal no-strike statutes to reach\nso far.\nL eon U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n508\n\n\x0c'


b"Provisions of the Special Foreign Assistance Act of 1986\nRelative to the Assets of Jean Claude Duvalier\nSection 204 o f the Special Foreign Assistance Act of 1986 requires the President to freeze or\notherwise prevent the dissipation o f assets, allegedly stolen by the form er president of Haiti,\nthat are the subject o f litigation to determine their ownership. The President is not required to\nfreeze assets that are not the subject o f litigation by the government o f Haiti.\n\nJanuary 2, 1987\nM\n\nem orandum\n\nO p in io n\n\nfor th e\n\nD epu ty A tto rn ey G en era l\n\nI. In tro d u c tio n a n d S u m m a ry\n\nThis memorandum is in response to your request of November 26, 1986, for\nthe opinion of this Office regarding the obligations imposed upon the President\nby \xc2\xa7 204 of the Special Foreign Assistance Act of 1986, Pub. L. No. 99-529\n(Act), a provision that mandates that the President provide assistance to the\ngovernment of Haiti in its efforts to obtain assets allegedly stolen by Jean\nClaude Duvalier and his associates. We understand that the need for this\nopinion is prompted by interagency deliberations to determine the substance of\nthe Executive Order required to implement the Act.\nIn the course of these interagency deliberations, this Office has learned that\nthe Government of Haiti has litigation pending in both Florida and New York\nwhich seeks to recover assets allegedly stolen by Jean Claude Duvalier or his\nassociates.1In both cases the Haitian government may be required to post bond\nto secure attachment orders on or otherwise preserve the Duvalier assets\npending resolution of the litigation to determine title to the assets.2 Counsel for\nthe Haitian government has represented to the Department of Justice that Haiti\nhas insufficient funds to post bond. Haiti\xe2\x80\x99s counsel has contended that \xc2\xa7 204 of\nthe Special Foreign Assistance Act requires that the President expeditiously\nfreeze all Duvalier assets within the jurisdiction of the United States. The\nDepartment of the Treasury, however, has taken the position that the President\nis not required to freeze or otherwise prevent the dissipation of Duvalier assets\neven if these assets are subject to pending litigation in which Haiti is unable to\n1 In this m em orandum we shall denom inate assets\nassociates that are under the jurisdiction o f the U nited\nissue o f who actually has title to these assets.\n2 We understand that, at present, the G overnm ent o f\nassets until decisions on the posting o f bonds and other\n\nheld in the name o f Jean Claude D uvalier or his\nStates as \xe2\x80\x9c D uvalier a s s e ts /\xe2\x80\x99 w ithout prejudging the\nHaiti has obtained tem porary orders restraining the\nprelim inary matters are rendered.\n\n\x0cpost bond. Treasury concedes that \xc2\xa7 204 requires the President to take some\naction to assist Haiti in its efforts to recover Duvalier assets, but believes that\nthe statutory requirement to provide assistance may be satisfied if the United\nStates undertakes an investigation to discover Duvalier assets within the United\nStates which are not presently the subject of litigation.\nWe have concluded that \xc2\xa7 204 of the Special Foreign Assistance Act re\xc2\xad\nquires the President to freeze or otherwise prevent the dissipation of Duvalier\nassets which are the subject o f litigation by Haiti if such action is necessary to\npreserve these assets during the pendency of litigation to determine their proper\nownership.3 A fair reading o f \xc2\xa7 204 makes clear that Congress specifically\nrecognized that Haiti was unable to secure the assets without outside assistance\nand that the purpose of the section was to mandate that the President provide\nthat assistance. Moreover, the legislative history confirms that Congress in\xc2\xad\ntended the President to take action that would permit Haiti to have its claims\nconsidered on their merits and specifically contemplated that he freeze Duvalier\nassets in order to accomplish this result. Finally, the President\xe2\x80\x99s signing state\xc2\xad\nment recognizes that his discretion under \xc2\xa7 204 must be exercised in a manner\nthat reflects \xc2\xa7 204\xe2\x80\x99s purpose. The clear purpose of the legislation is to preserve\nthe res during the pendency of Haiti\xe2\x80\x99s legal proceedings.\nWe also conclude, however, that the President\xe2\x80\x99s obligations under \xc2\xa7 204 are\nlimited to assisting Haiti with respect to Duvalier assets that are now the\nsubject or that subsequently become the subject of litigation by the government\nof Haiti. Although the President has discretion under \xc2\xa7 204 to take action with\nrespect to any Duvalier assets under the jurisdiction of the United States, the\nlegislation does not require a general freeze of these assets.\nII. Analysis\nSection 204(b) of the Special Foreign Assistance Act of 1986 orders the\nPresident to exercise authorities referenced by \xc2\xa7 203 of the International Emer\xc2\xad\ngency Economic Powers Act (IEEPA), 50 U.S.C. \xc2\xa7 1702, to assist Haiti in its\nefforts to recover through legal proceedings the assets of Jean Claude Duvalier\nand his associates. This section provides in full:\nThe President shall exercise the authorities granted by section\n203 of the International Emergency Economic Powers Act (50\nU.S.C. \xc2\xa7 1702) to assist the Government o f Haiti in its efforts to\nrecover, through legal proceedings, assets which the Govern\xc2\xad\nment of Haiti alleges were stolen by former president-for-life\nJean Claude Duvalier and other individuals associated with the\nDuvalier regime. This subsection shall be deemed to satisfy the\nrequirements of section 202 of that Act.\n^ In defining the actions required by \xc2\xa7 2 0 4 , we do not, o f course, im ply that the President must personally\nundertake any action. Pursuant to 3 U.S.C. \xc2\xa7 301, the President may delegate to \xe2\x80\x9cthe head of any department\nor agency in the executive branch, or an y official thereof w ho is required to be appointed by and with the\nadvice and consent o f the Senate . . . any function which is vested in the President by law .\xe2\x80\x9d\n\n2\n\n\x0c(Emphasis added.) The authorities referenced in \xc2\xa7 203 of IEEPA are extremely\nbroad and include the authority to freeze assets within the jurisdiction of the\nUnited States in which a foreign government or foreign national has an inter\xc2\xad\nest.4 Under IEEPA a predicate to the exercise of these authorities is the\ndeclaration under \xc2\xa7 202 of that Act that a national emergency exists. In light of\nCongress\xe2\x80\x99 statement that \xc2\xa7 204(b) of the Special Foreign Assistance Act is\ndeemed to satisfy this requirement, no declaration of emergency is required.5\nSection 204(b) thus requires that the President exercise authority embodied\nin IEEPA to assist the government of Haiti to recover Duvalier assets through\nlegal proceedings. A fair reading of \xc2\xa7 204 as a whole, however, suggests that\nCongress has not left the nature of this assistance to unfettered Presidential\ndiscretion, because in \xc2\xa7 204(a) Congress made findings which indicate its\npurpose in passing this legislation.6 The findings in \xc2\xa7 204(a) are as follows:\n(1) the Government of Haiti believes that former president-forlife Jean Claude Duvalier and other individuals associated with\nthe Duvalier regime illegally diverted to their own use substan\xc2\xad\ntial amounts of the assets of the Government of Haiti;\n(2) the Government o f Haiti is attempting to locate and recover\nthose assets through legal means;\n(3) virtually every relevant jurisdiction, both in the United States\nand abroad, requires the posting o f some form o f security to\n4 Section 203 provides the following authorities:\n(a) (1) At the tim es and to the extent specified in section 1701 o f this title, the President may,\nunder such regulations as he may prescribe, by means o f instructions, licenses, or\notherw ise \xe2\x80\x94\n(A) investigate, regulate, o r prohibit \xe2\x80\x94\n(i) any transactions in foreign exchange,\n(ii) transfers o f credit o r paym ents betw een, by, through, or to any banking institu\xc2\xad\ntion, to the extent that such transfers or paym ents involve any interest o f any\nforeign country or a national thereof,\n( 1 1 1 ) the importing o r exporting o f currency or securities; and\n(B) investigate, regulate, direct and com pel, nullify, void, prevent or prohibit, any\nacquisition, holding, w ithholding, use, transfer, w ithdraw al, transportation or expor\xc2\xad\ntation of, o r dealing in, o r exercising any right, pow er, or privilege with respect to, or\ntransactions involving, any property in which any foreign country or a national\nth ereo f has any interest,\nby any person, o r w ith respect to any property, subject to the jurisdiction of the U nited States\nThe President has recently exercised these authorities to freeze certain assets owned by the Libyan\ngovernm ent or its instrum entalities. Executive O rder No. 12544,51 Fed Reg. 1235 (1986).\n5 We em phasize that in any event the President\xe2\x80\x99s exercise o f authority under \xc2\xa7 204 will not constitute an\nexercise o f authorities under the IEEPA itself but an exercise o f pow ers under the Special Foreign Assistance\nAct o f 1986 that are defined by reference to IEEPA. T herefore the President\xe2\x80\x99s action under \xc2\xa7 204 will not\ncreate any precedent with respect to actions that may be taken under IEEPA.\n6 To interpret \xc2\xa7 204(b) without reference to \xc2\xa7 204(a) would be to ignore the cardinal rule o f statutory\ninterpretation that all parts o f a statute are to be given effect See American Textile Manufacturers Institute,\nInc. v. Donovan, 452 U.S. 490, 513 (1981). M oreover, the findings are the best evidence o f the purpose o f the\nstatute. They show that Congress specifically considered and reached a judgm ent regarding the problem at\nhand. See R. K eeton, Venturing to Do Justice 9 4-95 (1969) (arguing that courts m ust pay special attention to\ncongressional purpose when C ongress has considered and prescribed for the specific problem which the\nlegislation addresses).\n\n3\n\n\x0csecure the issuance o f orders o f attachment or other judicial\nseizures o f property,\n\n(4) the Government o f Haiti is unable, without outside assis\xc2\xad\ntance, to post the necessary security because o f its lack o f\nassets',\n\n(5) Haiti\xe2\x80\x99s economic situation could be significantly improved,\nand the need for external resources reduced, if the Government\nof Haiti is able to pursue its legal remedies against those who are\nin large part responsible for the economic crisis in Haiti; and\n(6) the United States has a substantial foreign policy interest in\nhelping the Government of Haiti recover any assets which were\nillegally diverted by those associated with the Duvalier regime.\n(Emphasis added.)\nThe requirement that the President assist Haiti must therefore be read in light\nof Congress\xe2\x80\x99 findings in \xc2\xa7 204(a) concerning the nature of the problem Haiti\nfaces and the nature of the assistance Haiti requires. Through these findings,\nCongress has made clear that (1) Haiti is unable as a practical matter to pursue\nthe assets through legal proceedings, because it is unable to post the necessary\nbond to secure these assets; and (2) Haiti needs \xe2\x80\x9coutside assistance\xe2\x80\x9d to preserve\nthe res pending litigation. In the event that Haiti, as the findings specifically\ncontemplate, is unable to post bond, the direct inference to be drawn is that the\nPresident\xe2\x80\x99s assistance to Haiti should be of a kind that will secure the assets\nuntil a judgment determining title to the assets may be rendered. Among the\nauthorities Congress has referenced in \xc2\xa7 204(b) for this purpose are those that\nmay be used to prohibit the transfer of assets pendente lite.1 Thus, \xc2\xa7 204 read as\na whole strongly suggests that, in the event Haiti is unable to post bond to\nsecure Duvalier assets, the President must employ the authority delegated by\nCongress in a manner that will preserve the res pending entry of judgment.\nThe legislative history of \xc2\xa7 204 removes any possible doubt that Congress\nintended that the President freeze Duvalier assets if such action is necessary to\nprevent the assets from being dissipated before the conclusion of litigation.\nRepresentative Dixon introduced \xc2\xa7 204 as a floor amendment to the Special\n7 U nder the au thorities referenced by IE EPA the President may preserve the res in a variety o f ways. He\nm ay sim ply p ro h ib it any tran sfer of the res pendente lite. He may also condition any transfer on the receipt o f\na license w hich w ould be issued only upon certification that the defendant had deposited an amount\nequ iv alen t to the fair m arket value o f th e res with the court in which the litigation w as being conducted. As\nthe P resid en t\xe2\x80\x99s signing statem ent makes clear, \xc2\xa7 204 \xe2\x80\x9cdoes not directly specify which of the m any executive\npow ers referenced by the International Em ergency Econom ic Pow ers Act should be em ployed,\xe2\x80\x9d and the\nPresident therefore \xe2\x80\x9cretains the discretion to select those pow ers that are appropriate to c a n y out the\nle g islatio n 's p u rposes.\xe2\x80\x9d Presidential S ig n in g Statem ent, Special Foreign A ssistance Act, 22 W eekly Comp.\nPres. D oc. 1453 (O ci. 27, 1986).\nFor convenience, in the rest o f the o p in io n we w ill denom inate Presidential action to preserve Duvalier\nassets pendente lite as an \xe2\x80\x9casset freeze.\xe2\x80\x9d We em phasize, how ever, that \xe2\x80\x9cfreeze\xe2\x80\x9d is an um brella term\nenco m p assin g a variety o f actions that th e President may take under the authorities referenced by IEEPA in\nord er to preserve the D uvalier assets.\n\n4\n\n\x0cForeign Assistance Act of 1986. His speech is the only legislative history\nexplaining this section. Representative Dixon\xe2\x80\x99s speech in pertinent part is as\nfollows:\nWhen the Duvaliers fled Haiti in February, they not only left\nthe country in millions of dollars of debt, but with less than $1\nmillion in foreign reserves.\nWithout foreign exchange reserves to buy even the bare ne\xc2\xad\ncessities, including food and fuel, the Government urgently\nmust recover the money the Duvaliers siphoned off.\nThe Government of Haiti is attempting to locate and recover\nthose assets through legal means.\nBut virtually every relevant jurisdiction, both in the United\nStates and abroad, requires the posting of some form of bond to\nsecure the issuance of orders of attachment or judicial seizures\nof property.\nThe Government of Haiti is unable, without assistance, to\npost the necessary security bond because of its lack of assets.\nMy amendment is simple and straightforward: To assist the\nnew Government o f Haiti to have its day in court in its attempt to\nreclaim wealth which was allegedly stolen by H aiti\xe2\x80\x99s form er\nPresident and his associates.\nThe amendment would require the President to use authori\xc2\xad\nties in the International Economic Powers Act to freeze assets o f\nDuvalier and his associates so that these assets cannot be re\xc2\xad\nmoved during the period which H aiti\xe2\x80\x99s claims are considered\nthrough regular legal processes.\n\n132 Cong. Rec. 19717-18 (1986) (emphasis added).8\n8 Representative D ix o n 's speech continued as follows.\nI can understand that som e do not like to see the em ergency pow ers applied in a case such as\nthis where the em ergency is not one facing the United States but instead confronts a friend. If we\ncan develop another way to be helpful in a timely manner, I would welcom e it But if we wait,\nsom e o f the w ealth that belongs to the H aitian people may be irretrievable (sic] lost. I w ould hope\nthat the Foreign Affairs Com m ittee will look for a perm anent way o f providing authority to the\nPresident to help countries in H aiti\xe2\x80\x99s position in the future but for Haiti the time is now.\nW e do not know w hether any o f the funds skimmed o ff through years o f corruption cam e from\nthe U.S. Treasury. We should act to help assure that the m oneys in the United States are given to\ntheir rightful ow ners and not lost forever because Haiti is too poor to press its claim s effectively.\n1 believe that the interim Governm ent o f Haiti, under the Lieutenant General Nam phy (Namphee), is seriously com m itted to a transition from a m ilitary council to a dem ocratically elected\ncivilian governm ent\nA law firm \xe2\x80\x94 Stroock, Stroock, & Lavan \xe2\x80\x94 has been retained by the Governm ent o f Haiti to\nassist in recovering these assets.\nI hope you w ill support my amendm ent and help the Governm ent o f Haiti in recovering the\nfunds.\n132 Cong. Rec. at 19718.\n\n5\n\n\x0cGiven the text of the statute and its legislative history, we therefore cannot\nagree with Treasury\xe2\x80\x99s position that the President could (1) refuse to freeze the\nDuvalier assets subject to legal proceedings even if such action were necessary\nto prevent these assets from being transferred or dissipated before the conclu\xc2\xad\nsion of the litigation; and (2) simply choose to investigate in an attempt to\nidentify other Duvalier assets within the jurisdiction of the United States in\norder to satisfy the statutory requirement that the President exercise authorities\nreferenced by IEEPA. If Duvalier assets subject to litigation would be dissi\xc2\xad\npated without an asset freeze, it would not be sufficient, in our view, for the\nPresident to limit his action to investigating whether Duvalier has other assets\nin the United States not at present subject to litigation. Since Haiti lacks the\nfunds to preserve the res pendente lite , Haiti would face, according to the\ncongressional findings, the same difficulties with respect to any such newly\ndiscovered assets as it now faces with respect to the assets that are in litigation.\nCongress could not have intended that the assistance rendered by the President\nleave Haiti in the same situation that the legislation was designed to ameliorate.9\nWe do not agree, however, with counsel for the Government of Haiti that the\nstatute requires the President to freeze all the Duvalier assets that are within the\n9 W e have a lso concluded that Congress\xe2\x80\x99 direction that the President take action to preserve a res held in the\nnam e o f a foreigner pending judgment determ ining title to the res is w ithin C ongress' constitutional powers.\nFirst, it is clear that freezing Duvalier a ssets pendente lite does not constitute a Bill o f A ttainder. In Nixon v.\nAdministrator o f General Services, 433 U.S. 425 (1977), the Supreme C ourt determ ined that legislation\ndepriv in g form er President Nixon o f the custody o f his records was not a Bill of A ttainder, because the\nlegislation did not represent a deprivation traditionally forbidden by the Bill of A ttainder Clause nor the\nfunctional equivalent o f such a deprivation. The Court held that the deprivation was not a forbidden\nfunctional equivalent because the legislation had a legitim ate nonpunitive purpose and the legislative record\ndid not reflect a punitive legislative motive. Id. at 47 5 -8 4 . U nder the Nixon test, freezing D uvalier assets does\nnot violate the Bill o f A ttainder Clause. Such an action is not one, like the confiscation o f property, that is\ntraditio n ally forbidden by the Bill of A ttainder C lause N or is the action a functional equivalent, because the\nlegislation has the legitim ate nonpunitive purpose o f aiding a foreign country and the legislative record\ndisplays no punitive m otive. It should also be noted that the legislation leaves the ultim ate issue o f the title to\nthese assets to the determ ination of courts under applicable state laws.\nSecond, the congressional action is not an im proper usurpation of judicial power In Dames & Moore v.\nRegan , 453 U.S. 654 (1981), the Supreme C ourt held that under the authority delegated to him by IEEFA, the\nPresident could nullify attachm ents that various plaintiffs had obtained on Iranian property in both state and\nfederal courts. A lthough the Court did not address the precise issue o f w hether this action usurped judicial\npow ers because o f its interference with pending litigation, the Court, in upholding the constitutionality o f the\nnullification, im plicitly held that the action w as not a usurpation. A fortiori , freezing assets pending litigation\n\xe2\x80\x94 an action w hich p erm its an ultimate ju d ic ia l determ ination on the m erits \xe2\x80\x94 is not an unconstitutional\nusurpation o f ju d icial pow er. Moreover, the Suprem e C ourt has specifically upheld against separation of\npow ers challenge a federal statute that assured plaintiffs that they would receive consideration o f the merits\no f their claim despite a jud icial decision specifically holding that the claim was barred by res judicata. United\nStates v. Sioux Nations, 448 U.S. 371 (1 9 8 0 ) (upholding statute that provided for review on the merits o f an\nIndian C laim s C om m ission finding, despite C ourt o f C laim s decision refusing to reach m erits on the basis of\nres judicata).\nN or does C o n g ress\xe2\x80\x99 direction to the President unconstitutionally interfere with his foreign policy preroga\xc2\xad\ntives. C o n g ress' authority to order a freeze o f foreign assets, like its pow er to delegate such authority to the\nPresident under IE EPA , derives from the Foreign C om m erce Clause. To be sure. C ongress\xe2\x80\x99 direction in this\ncase m ay have som e incidental effect on th e P resident\xe2\x80\x99s ability to conduct foreign policy. O ther congressional\naction under the Foreign Commerce C lause, however, like the legislation restraining investm ent in a\np articu lar country o r the imposition of ta riffs, has a far m ore direct effect on the President\xe2\x80\x99s ability to conduct\nforeign policy. Yet to o u r knowledge no c o u rt has ever suggested that such legislation is unconstitutional for\nthis reason.\n\n6\n\n\x0cjurisdiction of the United States. Through its findings in \xc2\xa7 204(a), Congress\ndefined Haiti\xe2\x80\x99s problem as that of being unable to secure assets in legal\nproceedings. Moreover, the mandate in \xc2\xa7 204(a) refers specifically to assisting\nthe efforts of Haiti to recover the Duvalier assets through legal proceedings.\nThe legislative history also tends to confirm that the President\xe2\x80\x99s obligations are\ntriggered by the existence of legal proceedings. As Representative Dixon stated\nin his remarks quoted above, \xc2\xa7 204 \xe2\x80\x9cwould require the President to use authori\xc2\xad\nties . . . to freeze assets of Duvalier and his associates so that these assets\ncannot be removed during the period which Haiti\xe2\x80\x99s claims are considered\nthrough regular legal processes.\xe2\x80\x9d 132 Cong. Rec. at 19717.\nWe therefore agree with Treasury that if the United States could somehow\nparticipate in the litigation over Duvalier assets to persuade the courts to\npreserve the assets, without bond, pending the conclusion of litigation, an\nassets freeze under \xc2\xa7 204 would not be necessary because the problem Con\xc2\xad\ngress sought to address would no longer exist.10 We note, however, that the\nCivil Division has considered the possibility of such participation but has\nconcluded that such efforts would be unlikely to succeed.11\n\n10 In this event, \xc2\xa7 204\xe2\x80\x99s mandate could be satisfied by investigating the existence of D uvalier assets other\nthan those subject to pending litigation.\n11 We do not think that the U nited States may avoid an assets freeze under \xc2\xa7 204 by requiring that the\nHaitian governm ent take action in litigation that it does not believe is in its best interests. For instance,\ncounsel for the H aitian governm ent has stated that Haiti will not file a RICO action against D uvalier m order\nto obtain federal court jurisdiction. Section 204 does not contem plate that the President w ill condition his\nassistance to H aiti on its filing a new suit or in taking some other action, but rather contem plates unilateral\naction by the President under the authorities referenced by IEEPA.\nFor sim ilar reasons, we do not believe the U nited States may require Haiti to accept a grant o f foreign\nassistance given under the condition that Haiti use the grant to post bond in pending litigation against\nD uvalier assets. Section 2346(a) o f T itle 22 authorizes the provision o f Economic Support Funds as follows:\nThe C ongress recognizes that, under special econom ic, political, or security conditions, the\nnational interests o f the United States may require econom ic support for countries in amounts\nwhich could not be justified solely under part I o f subchapter I o f this chapter. In such cases, the\nPresident is authorized to furnish assistance to countries and organizations, on such terms and\nconditions as he may determine, in order to promote econom ic or political stability . . . .\n(Em phasis added.)\nThe State D epartm ent argues that assistance, as the term is used in \xc2\xa7 2346, refers only to funds w hich are\nprovided under an arrangem ent with the beneficiary country. See M em orandum from Kenneth J. Vandevelde,\nO ffice o f the Legal Advisor, D epartm ent o f State to John O. M cGinnis, O ffice o f Legal C ounsel, Department\no f Justice (Dec. 16, 1986). Therefore a unilateral decision by the United States to pay funds to a federal or\nstate court or a bonding com pany for the benefit o f Haiti would not constitute assistance as that term is used\nin \xc2\xa7 2 3 4 6 . W e agree w ith the D epartm ent o f S tate\xe2\x80\x99s conclusion, because \xc2\xa7 2346 clearly contem plates\nproviding funds to countries rather than disbursing funds on behalf of countries w ithout their consent.\nTherefore, in order to have foreign assistance funds used to post bond, the U nited States w ould have to g ive a\nconditional grant o r loan to Haiti for this purpose. Haiti w ould be at liberty to refuse any funds provided under\nthis condition and the U nited States would continue to be obligated to take action under \xc2\xa7 204 o f the Foreign\nA ssistance Act.\nWe also note that the Department o f State believes that the Special Foreign Assistance A ct o f 1986 would,\nin any event, preclude the provision o f funds to Haiti to pay bonds, because Congress chose another m eans to\nsatisfy the bond by granting the President the authorities referenced by IEEPA W e would only need to reach\nthis argument if Haiti dem onstrated a willingness to accept a grant on the condition that it be used to post\nbond\n\n7\n\n\x0cConclusion\nWe believe that \xc2\xa7 204 of the Special Foreign Assistance Act of 1986 requires\nthe President to prevent Duvalier assets that are subject or become subject to\nlitigation from being dissipated until a final judgment on the ownership of the\nassets has been rendered. The President\xe2\x80\x99s obligations, however, are limited to\nactions necessary to prevent the removal of Duvalier assets which are subject to\nlitigation. The statute thus does not require the President to freeze all Duvalier\nassets. Finally, if the United States government is able to preserve Duvalier\nassets pendente lite by means other than an assets freeze, such as by filing\namicus briefs which persuade state courts to suspend their bond requirement,\nthe President would not be required to exercise his authority under \xc2\xa7 204.\nSa m u el A. Au\n\nto\n\n, Jr .\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n8\n\n\x0c"