b'Constitutionality of Legislation Withdrawing Supreme Court\nJurisdiction to Consider Cases Relating to Voluntary Prayer\nProposed legislation w ithdraw ing jurisdiction from the Suprem e C ourt to consider cases relating to\nvoluntary prayer in public schools and public buildings raises difficult and unsettled constitutional\nquestions under the separation of powers doctrine. W hile C ongress possesses som e power under\nthe Exceptions C lause of A rticle III o f the Constitution to regulate the appellate jurisdiction o f the\nSuprem e C o u rt, it may not interfere with the core functions of the Suprem e Court as an\nindependent and equal branch in our system of governm ent.\nThe records of the C onstitutional C onvention, as well as the structure of the system of governm ent\nadopted by that C onvention, establish that the Exceptions Clause was not intended to allow\nCongress to intrude upon the Suprem e C ourt\xe2\x80\x99s core functions. There is no basis in Suprem e C ourt\nprecedent, or in long accepted historical practice, for reaching a contrary conclusion.\nW hether a given exception to Suprem e C ourt jurisdiction intrudes upon its core functions depends\nupon a num ber of factors, such as w hether the exception covers constitutional or nonconstitutional\nquestions, the extent to which the subject is one which by its nature requires uniform ity or perm its\ndiversity am ong the different states and different parts of the country, the extent to which Suprem e\nCourt review is necessary to ensure the suprem acy o f federal law, and w hether other forum s or\nrem edies have been left in place so that the intrusion can properly be characterized as an exception.\n\nMay 6, 1982\nT\n\nhe\n\nC h a ir m a n\nU\n\nn it e d\n\nof the\n\nS tates S\n\nCom\n\nm it t e e o n t h e\n\nJ u d ic ia r y\n\nenate\n\ne a r M r . C h a i r m a n : This letter is written to you as Chairman of the Com m it\xc2\xad\ntee on the Judiciary. It is written in response to a num ber of earlier inquiries from\nmembers of your Committee concerning S. 1742, a proposal which would\nwithdraw jurisdiction from the Supreme Court to consider \xe2\x80\x9c any case arising out\nof any State statute, ordinance, rule, [or] regulation . . . which relates to\nvoluntary prayers in public schools and public buildings.\xe2\x80\x9d A second provision of\nthe bill would withdraw the jurisdiction of the district courts over any case in\nwhich the Suprem e Court has been deprived of jurisdiction. This bill raises\nfundamental and difficult questions regarding the role of the Supreme C ourt in\nour constitutional system, as well as the power of Congress to define and\ncircumscribe that role. The issues involved have been the subject of intense\nscholarly debate, and prom inent constitutional scholars have differed as to the\nextent of congressional power to limit Supreme Court jurisdiction.\nThis is perhaps to be expected since the question of congressional power over\nthe appellate jurisdiction of the Supreme Court implicates in a basic way the\n\nD\n\n13\n\n\x0crelations between Congress and the Suprem e Court, two co-equal branches of\ngovernm ent. Relations between the different branches in our tripartite system are\ngenerally governed by the doctrine of separation of powers. Neither the Constitu\xc2\xad\ntion nor the decisions of the Suprem e Court have attempted to define the precise\ncontours of this doctrine. As tw o astute students of our constitutional system have\nnoted:\nThe accommodations am ong the three branches of government\nare not automatic. They are undefined, and in the very nature of\nthings could not have been defined, by the Constitution. To speak\nof lines of demarcation is to use an inapt figure. There are vast\nstretches o f ambiguous territory.\nF rankfurter & Landis, Power c f Congress O ver Procedure in Criminal Con\xc2\xad\ntem pts in \xe2\x80\x9cInferior\xe2\x80\x9d Federal C ourts, A Study in Separation c f Powers, 37 Harv.\nL. Rev. 1010, 1016 (1924) (em phasis in original).\nT he doctrine of separation of powers touches fundamentally on how the Nation\nis governed, and, as the Supreme Court noted last Term in a separation of powers\ncase, \xe2\x80\x9c it is doubtless both futile and perhaps dangerous to find any epigramm atical explanation of how this country has been governed.\xe2\x80\x9d Dames & M oore v.\nR egan, 453 U .S. 654, 660 (1981). In this area more than any other we must heed\nJustice H olm es\xe2\x80\x99 wise admonition that \xe2\x80\x9c [t]he great ordinances of the Constitution\ndo not establish and divide fields of black and white.\xe2\x80\x9d Springer v. Philippine\nIslands, 277 U .S . 189, 209 (1928) (dissenting opinion).\nT here is no doubt that Congress possesses some power to regulate the appellate\njurisdiction of the Supreme C ourt. The language of the Constitution authorizes\nSuprem e Court appellate jurisdiction over enumerated types of cases \xe2\x80\x9c with such\nE xceptions, and under such Regulations as the Congress shall make.\xe2\x80\x9d U.S.\nC onst. A rt. III. The Supreme Court has upheld the congressional exercise of\npow er under this clause, even beyond widely accepted \xe2\x80\x9c housekeeping\xe2\x80\x9d matters\nsuch as tim e lim its on the filing of appeals and minimum jurisdictional amounts\nin controversy. See Ex parte M cC ardle, 74 U .S. (7 Wall.) 506 (1869).\nC ongress may not, however, consistent with the Constitution, make \xe2\x80\x9c excep\xc2\xad\ntions\xe2\x80\x9d to Suprem e C ourt jurisdiction which would intrude upon the core func\xc2\xad\ntions o f the Suprem e Court as an independent and equal branch in our system of\nseparation of powers.\nIn determ ining whether a given exception would intrude upon the core func\xc2\xad\ntions o f the Suprem e Court, it is necessary to consider a number of factors, such\nas w hether the exception covers constitutional or nonconstitutional questions, the\nextent to which the subject is one which by its nature requires uniformity or\nperm its diversity am ong the different states and different parts of the country, the\nextent to which Suprem e Court review is necessary to ensure the supremacy of\nfederal law, and w hether other forum s or remedies have been left in place so that\nthe intrusion can properly be characterized as an exception.\nConcluding that Congress m ay not intrude upon the core functions of the\nSuprem e C ourt is not to suggest that the Supreme Court and the inferior federal\n14\n\n\x0ccourts have not occasionally exceeded the properly restrained judicial role\nenvisaged by the Framers of our Constitution. Nor does such a conclusion imply\nan endorsem ent of the soundness of some of the judicial decisions which have\ngiven rise to various of the legislative proposals now before Congress. The\nDepartment of Justice will continue, through its litigating efforts, to urge the\ncourts not to intrude into areas that properly belong to the state legislatures and to\nCongress. The remedy for judicial overreaching, however, is not to restrict the\nSupreme C ourt\xe2\x80\x99s jurisdiction over those cases which are central to the core\nfunctions of the Court in our system of government. This remedy would in many\nways create problems equal to or more severe than those which the measure seeks\nto rectify.1\nWith respect to other pending legislation, the Department of Justice has\nconcluded that Congress may, within constraints imposed by provisions of the\nConstitution other than Article III, limit the jurisdiction or remedial authority of\nthe inferior federal courts. See Letter from William French Sm ith, Attorney\nGeneral, to Chairman Rodino, House Comm, on the Judiciary, concerning\nS. 951 (May 6, 1982). The question of congressional power over lower federal\ncourts is quite different from the question of congressional power over Supreme\nCourt jurisdiction, and the two issues should not be confused.\n\nI.\nProponents of congressional constitutional authority to limit the Supreme\nCourt\xe2\x80\x99s entire appellate jurisdiction have contended that such authority exists\nunder the Exceptions Clause of Article III of the Constitution. Article III\nprovides, in pertinent part:\nSection 1. The judicial Power of the United States, shall be\nvested in one supreme C ourt, and in such inferior Courts as the\nCongress may from time to time ordain and establish. . . .\nSection 2. The judicial Power shall extend to all Cases, in Law\nand Equity, arising under this Constitution, the Laws of the\nUnited States, and Treaties m ade, or which shall be made, under\n1 The D epartm ent o f Justice, in previous A dm inistrations, has consistently op posed proposals to restrict Su p rem e\nC ourt ju risd ictio n S ee Lim itation c f A ppellate Jurisdiction c f the U nited S ta tes Suprem e C o u rt \xe2\x80\xa2 H earings on\nS . 2 6 4 6 B efore the Subcom m To Investigate the A dm inistration c f th e Internal S ecu rity Act a n d O ther In te rn a l\nS ecu rity L aw s c f the Sen C om m on (heJudictary, 8 5 th C o n g ,2 d S e s s . 5 7 3 -7 4 , Pt 2 (1958) (statem ent o f A tto rn ey\nG eneral R ogers) (\xe2\x80\x9c [f]ull and unim paired appellate jurisdiction in the Suprem e C o u rt is fundam ental un d er o u r\nsystem of governm ent\xe2\x80\x9d ); M em orandum for the A ttorney G eneral from A ssistant A ttorney G eneral M alcolm R\nW ilkey, O LC (F eb 2 5 , 1958) (bills to lim it S uprem e C ourt jurisdiction are constitutional but bad policy);\nM em orandum for the D eputy A ttorney G eneral from A ssistant A ttorney G eneral Tom pkins. Internal Security Div.\n(Feb 14, 1958) (unconstitutional), L etter to Sen. Jam es O E astland, C hairm an , Senate C om m , o n the Judiciary,\nfrom D eputy A ttorney G eneral Richard K leindienst (S ept 4, 1969) (not clearly distinguishing constitutional and\npolicy objections), M em orandum for the A ttorney G eneral from A ssistant A ttorney G eneral W illiam H R ehnquist\n(Sept 16, 1969) (not clearly distinguishing constitutional and policy objections), Letter from A ssistant A ttorney\nG eneral A lan f^ rk e r to R ep Peter R odino, C hairm an, H ouse C om m on the Judiciary (June 19, 1980) (u n constitu\xc2\xad\ntional); Prayer in P ublic Schools a n d Buildings\xe2\x80\x94 F ederal C ourt Jurisdictio n : H earings on S 4 5 0 Before the\nSubcom m on C ourts, C iv il Liberties, a n d the A dm inistration o f Ju stice c fth e H o u se C om m , on the Judiciary. 96th\nC o n g ., 2d Sess. 11 (1980) (testim ony o f John M . H arm on, A ssistant A ttorney G en eral, OLC) (unconstitutional).\n\n15\n\n\x0ctheir A uthority;\xe2\x80\x94 to all C ases affecting Ambassadors, other pub\xc2\xad\nlic M inisters and Consuls;\xe2\x80\x94 to all Cases of admiralty and mar\xc2\xad\nitim e Jurisdiction;\xe2\x80\x94to Controversies to which the United States\nshall be a Party;\xe2\x80\x94 to Controversies between two or more States;\xe2\x80\x94\nbetween a State and Citizens of another State;\xe2\x80\x94 between Citizens\nof different States;\xe2\x80\x94betw een Citizens of the same State claiming\nLands under Grants of different States, and between a State, or the\nC itizens thereof, and foreign States, Citizens or Subjects.\nIn all Cases affecting A m bassadors, other public M inisters and\nC onsuls, and those in w hich a State shall be Party, the supreme\nC ourt shall have original Jurisdiction. In all the other Cases\nbefore m entioned, the suprem e Court shall have appellate Juris\xc2\xad\ndiction, both as to Law and Fact, with such Exceptions, and under\nsuch Regulations as the Congress shall make. (Emphasis added.)\nThe language of the Exceptions Clause, italicized above, does not support the\nconclusion that Congress possesses plenary authority to remove the Supreme\nC o u rt\xe2\x80\x99s appellate jurisdiction o v er all cases within that jurisdiction. The concept\no f an \xe2\x80\x9c exception\xe2\x80\x9d was understood by the Fram ers, as it is defined today, as\nm eaning an exclusion from a general rule or law. An \xe2\x80\x9c exception\xe2\x80\x9d cannot, as a\nm atter of plain language, be read so broadly as to swallow the general rule in\nterm s of which it is defined.\nThe C onstitution, unlike a statute, is not drafted with specific situations in\nm ind. D esigned as the fundamental charter of our political system, its most\nim portant provisions are phrased in broad and general terms. As eloquently\nexpressed by Justice Holmes in M issouri v. H olland, 252 U .S. 416, 433 (1920):\n[W ]hen we are dealing w ith words that also are a constituent act,\nlike the Constitution of the United States, we must realize that\nthey have called into life a being the development of which could\nnot have been foreseen completely by the most gifted of its\nbegetters. It was enough for them to realize or to hope that they\nhad created an organism; it has taken a century and has cost their\nsuccessors m uch sweat and blood to prove that they created a\nnation. The case before us must be considered in the light of our\nw hole experience and not merely in that of what was said a\nhundred years ago.\nFor exam ple, a literal interpretation of A rticle III as a whole would seem to\nm andate that Congress vest the full judicial power of the United States either in\nthe Suprem e C ourt or in an inferior federal court. Under such an interpretation,\nC ongress could m ake \xe2\x80\x9c exceptions\xe2\x80\x9d to the Supreme C ourt\xe2\x80\x99s appellate jurisdiction\nonly if it vested the jurisdiction at issue either in an inferior federal court or in the\nSuprem e C o u rt\xe2\x80\x99s original jurisdiction. This interpretation, which would require\nthe conclusion that any measure which entirely ousted the federal courts from\nexercising any portion of the ju d icial power of the United States and vested that\n16\n\n\x0cauthority in state courts would be unconstitutional, is rejected by all authorities\ntoday.2\nThe Constitution contains a num ber of other pronouncements w hich, although\nseemingly unambiguous and absolute, have necessarily been interpreted as\nlim ited in th eir applicability. See, e .g .. H om e B uilding & L oan A ss\xe2\x80\x99n v.\nBlaisdell, 290 U .S. 398 (1934) (Contract Clause); Everson v. Board c f E duca\xc2\xad\ntion, 330 U .S. 1 (1947) (Establishment Clause); Reynolds v. United States, 98\nU.S. 145 (1878) (Free Exercise Clause); Brandenburg v. Ohio, 395 U.S. 444\n(1969) (per curiam ) (Free Speech Clause). The Supreme Court has also recog\xc2\xad\nnized that even when a statute is otherwise within a power granted to Congress by\nthe Constitution, extrinsic limitations on congressional power contained in the\nBill of Rights or elsewhere may nevertheless render the statute unconstitutional.\nSee, e .g .. N ational League c f Cities v. Usery, 426 U.S. 833 (1976) (limitations\non Commerce Clause); M cCulloch v. M aryland, 17 U .S. (4 W heat.) 316, 421\n(1819) (limitations on Necessary and Proper Clause).\nIn light of these principles of constitutional interpretation, the Exceptions\nClause may not be analyzed in a vacuum but must be understood in terms of\nArticle III as a whole, as evidenced by the history of its framing and ratification,\nits place in the system of separation of powers embodied in the structure of the\nConstitution, and its consistency with external limitations on congressional\npower implicit in the Constitution and contained in the Bill of Rights. The\nconstruction of the Exceptions Clause that is most consistent both with the plain\nlanguage of the clause and with other evidence of its meaning is that Congress can\nlimit the Suprem e C ourt\xe2\x80\x99s appellate jurisdiction only up to the point where it\nimpairs the C ourt\xe2\x80\x99s core functions in the constitutional scheme.\n\nII.\nThe events at the Constitutional Convention support a construction of the\nExceptions Clause that would preclude Congress from interfering with the\nSupreme C ourt\xe2\x80\x99s core functions. The Framers agreed without dissent on the\nnecessity of a Supreme Court to secure national rights and the uniformity of\njudgm ents. The Resolves which were agreed to by the Convention and given to\nthe Com m ittee of Detail provided, simply, that \xe2\x80\x9c the jurisdiction [of the Supreme\nCourt] shall extend to all cases arising under the Natl, laws: And to such other\nquestions as may involve the Natl, peace & harmony.\xe2\x80\x9d 2 M. Farrand, Records c f\nthe Federal Convention c f 1787, at 46 (rev. ed. 1937). No mention was made of\nany congressional power to make exceptions to the C ourt\xe2\x80\x99s jurisdiction. The\nCommittee of D etail, charged with drafting a provision to implement these\nResolves, proposed the language of the Exceptions Clause. It seems unlikely that\n2 M arbury v M adison, 5 U .S . (I C ranch) 137 (1803). established that C ongress has no authority to enlarge the\nSuprem e C o u rt\xe2\x80\x99s original jurisdiction by creating \xe2\x80\x9c exceptions\xe2\x80\x9d to its appellate ju risd ictio n In M a rtin v H u n ter\'s\nL essee. 14 U .S (1 W heat ) 304, 330-31 (1816), Justice Story argued that, if C ongress creates any inferior federal\nco u rts, it m ust co n fer on them the full federal ju risdiction. This view, however, has never since been accepted by a\nm ajority o f the S uprem e C ourt\n\n17\n\n\x0cthe C om m ittee of Detail could have deviated so dramatically from the Con\xc2\xad\nvention\xe2\x80\x99s Resolves as to have given Congress the authority to interfere with the\nSuprem e C o u rt\xe2\x80\x99s core functions without considerably more attention to the\nsubject at the Convention.\nT his interference is strengthened by the events surrounding the adoption of the\nJudicial A rticle by the full Convention. In determ ining the scope of the C ourt\xe2\x80\x99s\njurisdiction, the Convention agreed to provisions expressly confirming that the\njurisdiction included cases arising under the Constitution and treaties; but it\nrejected, by a 6 to 2 vote, a resolution providing that, except in the narrow class of\ncases under the C o u rt\xe2\x80\x99s original jurisdiction, \xe2\x80\x9c the judicial power shall be exer\xc2\xad\ncised in such m anner as the Legislature shall direct.\xe2\x80\x9d 3 The Convention thus\nrejected a clear statement of plenary congressional power over the C ourt\xe2\x80\x99s\nappellate jurisdiction. Nevertheless, on the same day\xe2\x80\x94 without any recorded\ndebate o r explanation\xe2\x80\x94 the Fram ers adopted the Exceptions and Regulations\nlanguage now contained in A rticle III. In light o f the value placed on the Supreme\nC o u rt\xe2\x80\x99s appellate jurisdiction, a s evidenced by the other actions of the Con\xc2\xad\nvention, it seem s highly unlikely that the Framers would have agreed, without the\nslightest hint of controversy, to a provision that would authorize Congress to\ninterfere with the C o u rt\xe2\x80\x99s core constitutional functions.\nT here are additional reasons why the lack of controversy surrounding the\nadoption of the Exceptions Clause supports the inference that no power to intrude\non the C o u rt\xe2\x80\x99s core functions was intended. First, the historical materials show\nthe great im portance which the Framers attached to these functions. They\nenvisaged that the Supreme C ourt was a necessary part of the constitutional\nschem e and believed that the C ourt would review state and federal laws for\nconsistency with the Constitution.4 These sentiments were echoed by the authors\nof The Federalist Papers (J. Cooke ed. 1961), a work which is justly regarded as\nan im portant guide to the meaning of the C onstitution.5 In light of this explicit\nrecognition by the Founding Fathers of the C o u rt\xe2\x80\x99s vital role in the constitutional\nschem e, it seem s unlikely that they would have adopted, without controversy, a\nprovision which would effectively authorize Congress to eliminate the C ourt\xe2\x80\x99s\ncore functions.\nA second reason for inferring a more limited construction of the Exceptions\nClause from the lack of discussion at the Convention concerns the compromise\nagreed to by the Fram ers regarding the establishm ent of inferior federal courts.\nW hile the necessity of a Supreme Court was accepted without significant dissent\nam ong the Fram ers, there was vigorous disagreem ent over whether inferior\nfederal courts should be provided. The Convention first approved a provision\ncalling for m andatory inferior federal courts, then struck this provision by a\ndivided vote, and finally determined to leave to Congress the question whether to\n3 2 M . fiirran d . R ecords o f ihe Federal C onv en tio n o f 1787\n4 S e e , e .g ., 1 M fiarrand, supra, at 124; 2 M . fiarrand, supra, at 589\ns S e e ,e .g , T h e F ederalist N o. 39. at 256 (J M adison) (J. C o o k e ed . 19 6 1) (S uprem e C o u rt is \xe2\x80\x9cclearly essential to\nprevent an appeal to the sw ord and a disso lu tio n of the co m p act\xe2\x80\x9d ); id N o. 80 (A H am ilton), id. N o 82\n(A . H am ilton)\n\n18\n\n\x0cestablish inferior federal courts. The Supreme Court was viewed as a necessary\npart of the constitutional structure and was established by the Constitution itself;\nCongress was given no control over whether the Court would be created. The\ninferior federal courts, however, were viewed as an optional part of the govern\xc2\xad\nment and were authorized but not established by the Constitution. The decision\nwhether to create them was given to Congress. This distinction, and the role\nexplicitly assigned to Congress with respect to the inferior federal courts, implies\nthat the powers of Congress were to be quite different with respect to the Supreme\nCourt and the inferior federal courts.\nIf the Exceptions Clause authorized Congress to eliminate the Supreme C o u rt\xe2\x80\x99s\nappellate jurisdiction, thus limiting it to the exercise of original jurisdiction, the\npower of Congress over the Supreme Court would be virtually indistinguishable\n-from its power over inferior federal courts. Just as Congress could decline to\ncreate inferior federal courts, it could, in the guise of creating \xe2\x80\x9c exceptions\xe2\x80\x9d to the\nSupreme C ourt\xe2\x80\x99s appellate jurisdiction, deny the Supreme Court the vast major\xc2\xad\nity of the judicial powers which the Framers insisted \xe2\x80\x9c shall be vested\xe2\x80\x9d in the\nfederal judiciary. Congress could not eliminate the Supreme Court, but it could\nreduce it to a position of virtual impotence with only its limited original\njurisdiction remaining. Such an interpretation cannot be squared with the stark\ndifference in treatment which the Framers accorded to the Supreme Court and the\ninferior federal courts. Given the intensity of the debate regarding inferior federal\ncourts, and the compromise arrived at by the Framers, it seems highly unlikely\nthat the Convention would have adopted without comment a provision which, for\nmost practical purposes, would place the Supreme Court and the inferior federal\ncourts in the same position vis-a-vis Congress.\nA third reason to infer a limited construction o f the Exceptions Clause from the\nlack of debate accompanying its adoption is found in the theory of separation of\npowers which formed the conceptual foundation for the system of government\nadopted by the Convention. The Framers intended that each of the three branches\nof government would operate largely independently of the others and would\ncheck and balance the other branches. The purpose of this approach was to ensure\nthat governmental power did not become concentrated in the hands of any one\nindividual or group, and thereby to avoid the danger o f tyranny which the\nFram ers believed inevitably accompanied unchecked governmental power. In\xc2\xad\ndeed, it is not an exaggeration to say that the single greatest fear of the Founding\nFathers was tyranny, and that concentration of power was, in their minds, \xe2\x80\x9c the\nvery definition of tyranny.\xe2\x80\x9d 6\nEssential to the principle of separation of powers was the proposition that no\none branch of government should have the power to eliminate the fundamental\nconstitutional role of either of the other branches. As Madison stated in The\nFederalist No. 51, at 349 (J. Cooke ed. 1961):\n[T]he great security against a gradual concentration of the several\npowers in the same departm ent, consists in giving to those who\n6 T h e Federalist N o. 4 7 , at 324 (J M adison) (J. C ooke ed\n\n19\n\n1961)\n\n\x0cadm inister each departm ent, the necessary constitutional means\nand personal motives, to resist encroachments, of the others. The\nprovision for defense m ust in this, as in all other cases, be made\ncom m ensurate to the danger of attack.\nThis basic principle o f the Constitution\xe2\x80\x94 that each branch must be given the\nnecessary m eans to defend itself against the encroachments of the two other\nbranches\xe2\x80\x94 has special relevance in the context of legislative attempts to restrict\nju d ic ia l authority. The Framers \xe2\x80\x9c applaud[ed] the wisdom of those states who\nhave com m itted the judicial pow er in the last resort, not to a part of the\nlegislature, but to distinct and independent bodies of m en.\xe2\x80\x9d The Federalist No.\n81, at 544 (A. Ham ilton) (J. Cooke ed. 1961). They believed that, by the inherent\nnature o f their power, the legislature would tend to be the strongest and the\njudiciary the weakest of the branches. This insight is reflected in the very\nstructure of the Constitution: the provisions governing the legislature are placed\nfirst, in A rticle I; those establishing and governing the Judicial Branch are in the\nthird position, in A rticle 111. M adison recognized the great inherent power of the\nLegislative Branch in The Federalist No. 48. Drawing extensively from Jeffer\xc2\xad\nso n \xe2\x80\x99s N otes on the State o f Virginia, M adison concluded that in a representative\nrepublic \xe2\x80\x9c [t]he legislative departm ent is every where extending the sphere of its\nactivity, and drawing all power into its impetuous vortex.\xe2\x80\x9d The Federalist No. 48,\nat3 3 3 (J. Cooke ed. 1961). See a lso The Federalist No. 51 (J. M adison)(J. Cooke\ned. 1961).\nIt was in no sense a derogation on the concept of governance responsive to\npopular will that the Founding Fathers desired checks on the power o f the\nlegislature they were creating. T h e Acts of Parliament as well as those of the King\nform ed the litany of grievances w hich produced the Revolution. The Founding\nFathers believed in the voice of th e people and their elected representatives and\nplaced substantial power in the Legislature. At the same time, however, they were\nacutely sensitive to the rights o f individuals and minorities. Most of them had\nfirst-hand experience with persecution. The idea of a written Constitution was\nprecisely to place a check on the popular will and, in large part, to restrain the\nm ost powerful branch. They crafted a representative republic with restraints on\nthe legislature. \xe2\x80\x9cAn elective despotism was not the government we fought\nfor. . . .\xe2\x80\x9d The Federalist No. 4 8 , at 335 (J. Madison) (J. Cooke ed. 1961),\nquoting Jefferson\xe2\x80\x99s N otes on the State o f Virginia (emphasis in original).\nThe Suprem e C ourt was viewed as a part of this restraint, but, nonetheless,\ninherently as the least dangerous branch. Flamilton, in a famous passage from\nThe Federalist No. 78, at 522-23 (J. Cooke ed. 1961) eloquently testified to the\ninherent weakness of the Judicial Branch:\nW hoever attentively considers the different departments of\npower m ust perceive, th at in a government in which they are\nseparated from each other, the judiciary, from the nature of its\nfunctions, will always be the least dangerous to the political rights\nof the constitution; because it will be least in a capacity to annoy\n20\n\n\x0cor injure them. The executive not only dispenses the honors but\nholds the sword of the community. The legislature not only\ncommands the purse, but prescribes the rules by which the duties\nand rights of every citizen are to be regulated. The judiciary on the\ncontrary has no influence over either the sword or the purse, no\ndirection either of the strength or of the wealth of the society, and\ncan take no active resolution whatever. It may truly be said to have\nneither Force nor Will, but merely judgment; and must ultimately\ndepend upon the aid of the executive arm even for the efficacy of\nits judgm ents.\nAs a consequence of this view, Hamilton believed that it was necessary for the\njudiciary to remain \xe2\x80\x9c truly distinct from both the legislative and the executive. For\nI agree that \xe2\x80\x98there is no liberty, if the power of judging be not separated from the\nlegislative and executive powers.\xe2\x80\x99 \xe2\x80\x9d Id. at 523, quoting M ontesquieu\xe2\x80\x99s Spirit of\nLaws. Thus, he concluded: \xe2\x80\x9c The complete independence of the courts of justice\nis peculiarly essential in a limited constitution.\xe2\x80\x9d The Federalist No. 78, at 524\n(J. Cooke ed. 1961).\nIt was in recognition of the inherent weakness of the judiciary, particularly as\ncontrasted with the inherent power of the legislature, that the Framers determined\nto give special protections to the judiciary not enjoyed by officials of the other\nbranches. Federal judges were given lifetime positions during good behavior, and\nwere protected against diminution of salary while in office. The purpose of these\nprovisions was largely to provide the judiciary, as the weakest branch, with the\nnecessary tools for self-protection against the encroachm ents o f the other\nbranches.\nThe notion that the Exceptions Clause grants Congress plenary authority over\nthe Supreme C ourt\xe2\x80\x99s appellate jurisdiction cannot easily be reconciled with these\nprinciples of separation of powers. If Congress had such authority, it could reduce\nthe Supreme Court to a position of impotence in the tripartite constitutional\nscheme. The Court could be deprived of its ability to protect its core constitu\xc2\xad\ntional functions against the power of Congress. The salary and tenure protections\nso carefully crafted in Article III could be rendered virtually meaningless in light\nof the power of the Congress simply to eliminate appellate jurisdiction altogether,\nor in those areas where the C ourt\xe2\x80\x99s decisions displeased the legislature. It is\nsignificant that while the Framers did not focus on the Exceptions Clause, they\ndid point to the impeachment power as \xe2\x80\x9c a complete security\xe2\x80\x9d against risks o f \xe2\x80\x9c a\nseries of deliberate usurpations on the authority of the legislature.\xe2\x80\x9d The Federalist\nNo. 81, at 546 (A. Hamilton) (J. Cooke ed. 1961).\nIn light of these basic considerations, it seems unlikely that the Fram ers\nintended the Exceptions Clause to empower Congress to im pair the Supreme\nC ourt\xe2\x80\x99s core functions in the constitutional scheme. Even if some of the Framers\ncould have intended this, it is improbable that the Exceptions Clause could have\nbeen approved by the Convention without debate or controversy, or indeed\nwithout any explicit statement by anyone associated with the framing or ratifica\xc2\xad\n21\n\n\x0ction of the Constitution that such a deviation from the carefully crafted separation\nof pow ers m echanism s provided elsewhere in the Constitution was intended. Nor\ndoes it seem likely that the Convention would have developed the Exceptions\nClause as a check on the Supreme Court in such a manner that an exercise of\npower under the Clause to remove Supreme Court appellate jurisdiction would\nnot return authority to Congress, but vest it in the state courts instead. Hamilton\nregarded even the possibility of m ultiple courts of final jurisdiction as unaccept\xc2\xad\nable. The Federalist N o. 80, at 535 (J. Cooke ed. 1961).\nThe m ere necessity of uniform ity in the interpretation of the\nnational laws, decides the question. Thirteen independent courts\nof final jurisdiction over the same causes, arising upon the same\nlaws, is a hydra in government, from which nothing but contra\xc2\xad\ndiction and confusion can proceed.\nT hus, unless there is sound and com pelling evidence o f a contrary interpretation\nin the decisions of the Supreme C ourt, or in the long-accepted historical practices\nregarding congressional control o f Supreme C ourt jurisdiction, it must be con\xc2\xad\ncluded that the Exceptions Clause does not authorize Congress to interfere with\nthe C o u rt\xe2\x80\x99s core functions in o u r constitutional system.\n\nIII.\nAn exam ination of the Supreme C ourt\xe2\x80\x99s cases does not require any different\ninterpretation. T he Supreme C ourt has provided only inconclusive guidance on\nthe m eaning of the Exceptions C lause. In M artin v. H unter\xe2\x80\x99s Lessee, 14 U .S. (1\nW heat.) 304, 347\xe2\x80\x9448 (1816), the Court noted \xe2\x80\x9c the im portance, and even\nnecessity of uniform ity of decisions throughout the whole United States, upon all\nsubjects within the purview of the constitution.\xe2\x80\x9d In the absence of the Supreme\nC ourt, Justice Story observed, \xe2\x80\x9c the laws, the treaties, and the constitution of the\nU nited States would be different, in different states. . . . The public mischiefs\nthat would attend such a state of things would be truly deplorable; and it cannot be\nbelieved, that they could have escaped the enlightened convention which formed\nthe constitution. . . . [T]he appellate jurisdiction must continue to be the only\nadequate rem edy for such evils.\xe2\x80\x9d Id. at 348. Sim ilar statements are found in the\nopinions of C h ief Justice Marshall, Cohens v. Virginia, 19 U .S. (6 W heat.) 264,\n415 (1821), and C hief Justice Taney, Ablem an v. Booth, 62 U .S. (21 How.) 506,\n5 1 7 -1 8 (1858).7 Although these cases do not squarely address the question\nw hether Congress could constitutionally deprive the Court of its core functions,\nthe C o u rt\xe2\x80\x99s language seems strong enough to cast considerable doubt, at least by\nim plication, on the pow er of Congress to elim inate Supreme Court jurisdiction\n7 Cf. the fam ous statem en t o f Justice H olm es:\nI d o not think the U nited States w ould com e to an end if we lost o u r pow er to d eclare an A ct o f\nC ongress void I d o think th e Union w o u ld be im periled if we could not m ake that declaration as to\nthe law s o f the several States\nO. H o lm e s, C ollected L egal P apers 295-96 (1920).\n\n22\n\n\x0cover cases in which a final, uniform, and supreme voice is necessary in the guise\nof creating \xe2\x80\x9c exceptions\xe2\x80\x9d to that jurisdiction. In the words of C hief Justice Taney,\nthe exercise of such a power would withdraw authority which is \xe2\x80\x9c essen tial. . . to\n[the] very existence [of the Federal] Government [and] essential to secure the\nindependence and supremacy of [that] Governm ent.\xe2\x80\x9d Id.\nThe Supreme Court has, in a num ber of early cases, referred to the power of\nCongress over its appellate jurisdiction as being quite broad. For exam ple, in\nBarry v. M ercein, 46 U .S. (5 How.) 103, 119 (1847), the Court stated that \xe2\x80\x9c [b]y\nthe constitution of the United States, the Supreme Court possesses no appellate\npower in any case, unless conferred upon it by act of Congress; nor can it, when\nconferred be exercised in any other form, or by any other mode of proceeding\nthan that which the law prescribes.\xe2\x80\x9d See also The Francis Wright, 105 U .S. 381,\n386 (1881); Daniels v. Railroad Co., 70 U .S. (3 Wall.) 250, 254 (1865);\nDurousseau v. U nited States, 10 U.S. (6 Cranch) 307, 313-14 (1810); U nited\nStates v. M ore, 1 U .S. (3 Cranch) 159 (1805); Wiscart v. Dauchy, 3 U .S . (3\nDali.) 321, 327 (1796). However, every one of these statements is dictum; the\nCourt has never held that Congress has the power entirely to preclude the C ourt\nfrom exercising its core functions. It may also be doubted whether these broad\nstatements are intended to cover cases in which such an extraordinary con\xc2\xad\ngressional power was exercised. They may instead be designed to recognize a\nbroad power which, like the Commerce Clause, is limited by other provisions of\nthe Constitution and by the structure of the docum ent as a whole.\nProponents of the \xe2\x80\x9c plenary power\xe2\x80\x9d thesis rely most heavily on the only\nSupreme Court decision which could be characterized as upholding a power of\nCongress to divest the Court of jurisdiction over a class of constitutional cases: E x\nparte M cCardle, 74 LI.S . (7 Wall.) 506 (1869). At issue in that case was the\nconstitutionality o f an 1868 statute repealing a provision enacted the previous\nyear which had authorized appeals to the Supreme Court from denials of habeas\ncorpus relief by a circuit court. In a brief opinion which did not discuss the scope\nor implications of the Exceptions Clause, the Court upheld Congress\xe2\x80\x99 withdrawal\nin 1868 of jurisdiction under the 1867 law, stating that \xe2\x80\x9c the power to m ake\nexceptions to the appellate jurisdiction of this court is given by express w ords.\xe2\x80\x9d\nId. at 514. Despite this broad language, the Court suggested that the withdrawal\nof jurisdiction provided by the 1867 law did not deprive the Court of jurisdiction\nover habeas corpus cases that had been conferred by \xc2\xa7 14 of the Judiciary Act of\n1789 (1 Stat. 81). \xe2\x80\x9c Counsel seem to have supposed, if effect be given to the\nrepealing act in question, that the whole appellate power of the court, in cases of\nhabeas corpus, is denied. But this is an error.\xe2\x80\x9d 74 U.S. (7 Wall.) at 515.\nThe C ourt\xe2\x80\x99s dictum regarding alternative procedures for Supreme Court review\nof habeas corpus cases was converted into a holding several months later in E x\nparte Yerger, 75 U .S. (8 Wall.) 85 (1869). The petitioner in that case had invoked\nthe C ourt\xe2\x80\x99s jurisdiction under the Judiciary Act of 1789, ch. 20, 1 Stat. 73. In\nholding that it had jurisdiction, the Court in Yerger made it clear that the 1868\nlegislation considered in M cCardle was limited to appeals taken under the 1867\nact and upheld the petitioner\xe2\x80\x99s right to Supreme Court review under the proper\n23\n\n\x0cjurisdictional statute. The Court noted that the 1868 act did \xe2\x80\x9cnot purport to touch\nthe appellate jurisdiction conferred by the Constitution. . . ." Id . at 105. Indoing\nso, the C ourt observed that any total restriction on the power to hear habeas\ncorpus cases would \xe2\x80\x9c seriously hinder the establishm ent of that uniformity in\ndeciding upon questions of personal rights which can only be attained through\nappellate jurisdiction. . . .\xe2\x80\x9d Id. at 103. Thus, within months of the McCardle\ndecision, the C ourt m ade it clear that M cCardle did not decide the question of\nC ongress\xe2\x80\x99 power to deprive it o f all authority to hear constitutional claims in\nhabeas corpus cases. For this reason, while the Yerger C ourt acknowledged that\nthe C o u rt\xe2\x80\x99s jurisdiction as given by the Constitution \xe2\x80\x9c is . . . subject to exception\nand regulation by C ongress,\xe2\x80\x9d id. at 102, neither McCardle, nor Yerger, nor any\nother case, constitutes an authoritative statement that Congress could deprive the\nC ourt o f its core functions.\n\nIV.\nFinally, the historical record regarding the authority actually asserted by\nC ongress to control the Court\xe2\x80\x99s appellate jurisdiction supports, on balance, the\nconstruction that the Exceptions Clause does not authorize Congress to interfere\nwith the C ourt\xe2\x80\x99s core functions. It is indeed true that Congress did not in the First\nJudiciary Act explicitly authorize the Supreme Court to exercise the full range of\nappellate jurisdiction established by Article III. Perhaps the most prominent\ncategory of cases in which the C ourt was not granted statutory jurisdiction was\nfederal crim inal cases, which were not explicitly brought within the C ourt\xe2\x80\x99s\nappellate jurisdiction until 1889. Although Suprem e Court review over these\ncases may have been available in special circum stances, it is probably true that\nm ost federal crim inal cases were not reviewable by the Supreme Court during this\nperiod under the term s of the applicable legislation. The Judiciary Act also failed\nto grant the Suprem e Court appellate jurisdiction over state court decisions\nstriking down state laws as being inconsistent with the federal Constitution, or\nupholding federal statutes against constitutional attack.\nT he failure of Congress in the First Judiciary Act to provide the Court with the\nfull appellate jurisdiction authorized under A rticle III does not undermine the\nconclusion that Congress cannot interfere with the Supreme C ourt\xe2\x80\x99s core func\xc2\xad\ntions, for several reasons. First, w hile Congress did omit certain specific catego\xc2\xad\nries of cases from the appellate jurisdiction provisions of the First Judiciary Act,\nit is notew orthy that the first C ongress, containing among its members many\ndelegates to the Constitutional Convention, recognized the C ourt\xe2\x80\x99s appellate\njurisdiction over an extremely broad range of constitutional cases. M ost signifi\xc2\xad\ncantly, the C ourt was given authority under \xc2\xa7 25 of the Judiciary Act (1 Stat. 85)\nto review decisions of state courts striking down federal statutes or upholding\nstate statutes against constitutional attack. That authority was conferred despite\nthe intense controversy which it sparked am ong the states\xe2\x80\x94 controversy which\nresulted in state resistance to Suprem e C ourt judgm ents and in attempts in\nC ongress, foreshadow ing the current attempts to limit the C ourt\xe2\x80\x99s jurisdiction, to\n24\n\n\x0crepeal \xc2\xa7 25 of the Judiciary Act. The fact that the Judiciary Act did not explicitly\nrecognize jurisdiction over state court decisions upholding the validity of federal\nlaws or striking down state laws, or over federal criminal cases, does not undercut\nthe position that the Court cannot be divested of its ability to fulfill its essential\nresponsibility under the Constitution. The supremacy of federal law, guaranteed\nby the Suprem e Court, would not be seriously threatened by state court decisions\nupholding federal laws or striking down state laws on federal constitutional\ngrounds.\nSecond, the history of Supreme Court appellate review has confirmed the\nimportance of its core functions. To the extent that any inferences can be drawn\nfrom the failure of the First Judiciary Act explicitly to recognize the full range of\nthe Supreme C ourt\xe2\x80\x99s appellate jurisdiction over constitutional cases, those in\xc2\xad\nferences are subject to refutation by later events. The Supreme Court now has\nappellate jurisdiction over all federal cases. Each of the areas of incomplete\njurisdiction has long since been fulfilled. The vast majority of constitutional\ndecisions which are on the books today, and which affect our national life in\nmany and important ways, have been rendered by the Court under a statutory\nregime which included such broad appellate jurisdiction. As Justice Frankfurter\nsaid in another context, \xe2\x80\x9c the content of the three authorities of government is not\nto be derived from an abstract analysis. . . . It is an inadmissibly narrow\nconception o f American constitutional law to confine it to the words of the\nConstitution and to disregard the gloss which life has written upon them .\xe2\x80\x9d\nYoungstown Sheet & Tube Co. v. Sawyer, 343 U .S. 579, 610 (1952) (concurring\nopinion). The gloss which life has written on the Supreme C ourt\xe2\x80\x99s jurisdiction is\none which protects the essential role of the Court in the constitutional plan.\nV.\nAs noted at the outset, Congress has substantial authority over the jurisdiction\nand power of the inferior federal courts. It also is given the power under Article\nIII to regulate the Supreme C ourt\xe2\x80\x99s appellate jurisdiction in circumstances which\ndo not threaten the core functions of the Court as an independent branch in our\nsystem of separation of powers. Congress may, for example, specify procedures\nfor obtaining Supreme Court review and impose other restraints on the Court.\nBut the question of the limits of Congress\xe2\x80\x99 authority under the Exceptions Clause\nis an extraordinarily difficult one. Thoughtful and respected authorities have\ncome to conclusions which differ.\nThe legislative process itself is often important in assessing not only the\nmeaning but also the constitutionality of congressional enactments. The Court\nhas stated that it must have \xe2\x80\x9c due regard to the fact that this Court is not exercising\na primary judgm ent but is sitting in judgm ent upon those who also have taken the\noath to observe the Constitution and who have the responsibility for carrying on\ngovernment.\xe2\x80\x9d Rostker v. G oldberg, 453 U.S. 57, 64 (1981).\nIf Congress considers the subject matter of S. 1742 it may wish to do so in light\nof the principles enunciated above and carefully weigh whether whatever action\n25\n\n\x0cis taken would intrude upon the essential functions of the Supreme Court as an\nindependent branch of government in our system of separation of powers. As the\nC ourt has stated, \xe2\x80\x9c The customary deference accorded the judgments of Congress\nis certainly appropriate when . . . Congress specifically considered the question\nof the A ct\xe2\x80\x99s constitutionality.\xe2\x80\x9d 453 U .S. at 64.\nUltimately, it is for Congress to determ ine what laws to enact and for the\nExecutive Branch to \xe2\x80\x9c take Care that the Laws be faithfully executed.\xe2\x80\x9d U .S.\nC o n st., A rt. I ll, \xc2\xa7 3. It is settled practice that the Department of Justice must and\nwill defend Acts of Congress except in the rare case when the statute either\ninfringes on the constitutional pow er of the Executive or when prior precedent\noverw helm ingly indicates that the statute is invalid. Accordingly, should the\nD epartm ent be called upon to defend the constitutionality of this bill before the\ncourts, it responsibly could and would do so.\nIt is appropriate to note, however, that even if it were concluded that legislation\nin this area could be enacted consistent with the Constitution, the Department\nwould have concerns as a policy m atter about the withdrawal of a class of cases\nfrom the appellate jurisdiction o f the Supreme C ourt. History counsels against\ndepriving that C ourt of its general appellate jurisdiction over federal questions.\nProposals of this kind have been advanced periodically, but have not been\nadopted since the Civil War. There are sound reasons that explain why Congress\nhas exercised restraint in this area and not tested the limits of constitutional\nauthority under the Exceptions Clause.\nT he integrity of our system of federal law depends upon a single court of last\nresort having a final say on the resolution of federal questions. The ultimate result\no f depriving the Suprem e Court o f jurisdiction over a class of cases would be that\nfederal law would vary in its impact am ong the inferior courts. State courts could\nreach disparate conclusions on identical questions of federal law, and the Su\xc2\xad\nprem e C ourt would not be able to resolve the inevitable conflicts. There would\nalso exist no guarantee through Suprem e Court review that state courts accord\nappropriate suprem acy to federal law when it conflicts with state enactments.\nSincerely,\nW\n\n26\n\nil l ia m\n\nF\n\nrench\n\nS m it h\n\n\x0c'


b'General Services Administration Use of\nGovernment Funds for Advertising\nSection 632 of the Treasury, Postal Service, Executive Office of the President, and General Government Appropriations Act of 2000, which prohibits the use of appropriated funds for \xe2\x80\x9cpublicity or\npropaganda purposes,\xe2\x80\x9d does not prohibit the General Services Administration from using appropriated funds to support a reasonable and carefully-controlled advertising campaign that serves the goal\nof informing other federal agencies about the products and services it offers.\nThe principles set forth in some opinions of the Comptroller General addressing limitations on\nadvertising by federal agencies beyond the \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d rider would not prohibit the\nGSA\xe2\x80\x99s advertisements to other agencies.\n\nJanuary 19, 2001\n\nMEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL\nGENERAL SERVICES ADMINISTRATION\nYou have asked whether section 632 of the Treasury, Postal Service, Executive\nOffice of the President, and General Government Appropriations Act of 2000,\nPub. L. No. 106-58, \xc2\xa7 632, 113 Stat. 430, 473 (1999) (\xe2\x80\x9cGeneral Government\nAppropriations Act of 2000\xe2\x80\x9d), which prohibits the use of appropriated funds for\n\xe2\x80\x9cpublicity or propaganda purposes,\xe2\x80\x9d disables the General Services Administration\n(\xe2\x80\x9cGSA\xe2\x80\x9d) from expending money for advertising and promoting the services and\nprograms it offers to other federal agencies. We believe that GSA may use\nappropriated funds for such advertising. The advertisements, however, must be\naimed at providing information about GSA\xe2\x80\x99s offerings rather than aggrandizing or\nunduly emphasizing GSA\xe2\x80\x99s importance. 1 You have also asked whether, even apart\nfrom the \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d rider, principles identified in opinions of the\nComptroller General limiting advertising by federal agencies would prohibit the\nGSA\xe2\x80\x99s advertisements.\nI.\nWe understand that the advertisements in question give information to other\nfederal agencies about the services and products that GSA offers. GSA \xe2\x80\x9cprovides\nFederal agencies a myriad of supplies and services ranging from building construction and leasing of office space to providing personal property for virtually all\nagency needs.\xe2\x80\x9d Letter for Randolph Moss, Acting Assistant Attorney General,\nOffice of Legal Counsel, from George N. Barclay, Acting General Counsel, GSA\nat 2 (Nov. 12, 1998) (\xe2\x80\x9cGSA Letter\xe2\x80\x9d). In addition, the Federal Property and\nAdministrative Services Act (\xe2\x80\x9cFPASA\xe2\x80\x9d) charges GSA with the responsibility for\n1\n\nWe do not address the legality of any specific advertisements, which must be evaluated individu-\n\nally.\n\n91\n\n227-329 VOL_25_PROOF.pdf 101\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nprocuring services and supplies for federal agencies in a manner it determines to\nbe \xe2\x80\x9cadvantageous to the Government in terms of economy, efficiency, or service,\nand with due regard to the program activities of the agencies concerned.\xe2\x80\x9d 40\nU.S.C. \xc2\xa7 481(a) (1994). These statutory duties include overseeing the provision of\ninformation technology services, id. \xc2\xa7 757, procuring federal property, id. \xc2\xa7 756,\noperating the federal motor vehicle fleet, id. \xc2\xa7 491, and disposing of surplus\nproperty, id. \xc2\xa7 484. GSA asserts that \xe2\x80\x9c[i]n order to demonstrate to Federal agencies\nthe benefits of a single, centralized procurement activity and to fulfill the mandate\nexpressed in the [FPASA], GSA believes that it is necessary and appropriate to\neducate, promote and advertise its activities to its federal customers.\xe2\x80\x9d GSA Letter\nat 2. GSA argues, therefore, that\nthe Administrator of General Services has the discretion to determine\nif advertising will further any of these statutorily authorized missions, thereby constituting a necessary and proper use of appropriated funds. . . . If the Administrator determines that certain forms of\nadvertising or publicity are reasonable, necessary and proper in\ncommunicating the availability and advantages of GSA\xe2\x80\x99s programs,\nappropriated funds should be available for this purpose.\nLetter for Emily C. Hewitt, General Counsel, General Services Administration,\nfrom George Barclay, Associate General Counsel, Personal Property Division, and\nEugenia D. Ellison, Associate General Counsel, General Law Division, General\nServices Administration, Re: Publicity and Propaganda Prohibition Clause\nContained in Agency Appropriations Acts at 2 (Nov. 6, 1998) (\xe2\x80\x9cGSA General\nCounsel Memorandum\xe2\x80\x9d).\nII.\nSection 632 of the General Government Appropriations Act of 2000, provides\nthat \xe2\x80\x9c[n]o part of any appropriation contained in this or any other Act shall be used\nfor publicity or propaganda purposes within the United States not heretofore\nauthorized by Congress.\xe2\x80\x9d A similar provision, in essentially the same form, has\napplied to GSA since 1989. See, e.g., Treasury, Postal Service, Executive Office of\nthe President, and Certain Independent Agencies Appropriations Act, 1989, Pub.\nL. No. 100-440, \xc2\xa7 513, 102 Stat. 1721 (Sept. 22, 1988). 2\n\n2\nThe analogous statutory provision in the 1998 GSA appropriations act was section 601 of the\nOmnibus Consolidated and Emergency Supplemental Appropriations Act, Pub. L. No. 105-277, 112\nStat. 2681 (1998). A similar provision has been in other appropriations acts since 1952. See, e.g.,\nLabor-Federal Security Appropriation Act, Pub. L. No. 82-134, \xc2\xa7 702, 65 Stat. 209, 223 (1951).\n\n92\n\n227-329 VOL_25_PROOF.pdf 102\n\n10/22/12 11:10 AM\n\n\x0cGeneral Services Administration Use of Government Funds for Advertising\n\nCongress has enacted a number of statutes that restrict agencies\xe2\x80\x99 authority to\nspend funds for \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d or lobbying. 3 All of these statutes raise\nsubstantial difficulties of interpretation. A \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d rider such as\nsection 632 creates the special difficulty that its language gives scant guidance\nabout the line between what is permitted and what is forbidden. The Comptroller\nGeneral, for example, has \xe2\x80\x9cconsistently expressed [the] belief\xe2\x80\x9d that the language\nused in such riders \xe2\x80\x9cdoes not provide adequate guidelines under which to judge the\nactivities of an agency, especially when balanced against the agency\xe2\x80\x99s legitimate\ninterest in communicating with the public and with members of Congress for\npermissible purposes.\xe2\x80\x9d Rep. Benjamin S. Rosenthal, B-184,648, 1975 WL 9457, at\n*6 (Comp. Gen. Dec. 3, 1975). The principal sources of guidance for construing\nthis rider and other \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d provisions are prior administrative\ninterpretations, which are based largely upon general concepts about the structure\nof government.\nOur Office\xe2\x80\x99s work in this general area has primarily focused on the AntiLobbying Act, 18 U.S.C. \xc2\xa7 1913 (1994), and our \xe2\x80\x9cpublished opinions do not set\nout a detailed, independent analysis of \xe2\x80\x98publicity or propaganda\xe2\x80\x99 riders\xe2\x80\x9d in the\nappropriations statutes. See Memorandum for the Attorney General, from Walter\nDellinger, Assistant Attorney General, Office of Legal Counsel, Re: Anti-Lobbying Act Guidelines at 3 (Apr. 14, 1995). Nevertheless, one distinction that runs\nthrough our Office\xe2\x80\x99s opinions in this general field bears particularly on the\nquestion you have asked. We have \xe2\x80\x9csought to draw a distinction . . . between\nactivities that are intended to \xe2\x80\x98give . . . information as to the work of [a] department,\xe2\x80\x99 and activities that seek to \xe2\x80\x98extol and exploit the virtues of [a] department.\xe2\x80\x99\xe2\x80\x9d\nEstablishment of the President\xe2\x80\x99s Council for International Youth Exchange, 6 Op.\nO.L.C. 541, 547 (1982) (\xe2\x80\x9cInternational Youth Exchange\xe2\x80\x9d) (quoting 50 Cong. Rec.\n4411 (1913) (remarks of Rep. Lever on precursor to 5 U.S.C. \xc2\xa7 3107)). We have\nfocused on whether the activity in question provides important information about\nthe agency and the discharge of its statutory mandate or instead serves to aggrandize the agency or its officials. See, e.g., Memorandum for the Deputy Attorney\nGeneral from Ralph W. Tarr, Acting Assistant Attorney General, Office of Legal\nCounsel, Re: Hiring of Media Consultants to Advise Department Attorneys With\nRespect to Their Dealings with the Press at 3 (Jan. 24, 1985) (\xe2\x80\x9cMedia Consultants\xe2\x80\x9d) (approving use of appropriated funds to support hiring media consultants if\nreasonably necessary to assist agency in performing its legitimate functions with\n\n3\nSee, e.g., Pub. L. No. 106-58, \xc2\xa7 627, 113 Stat. 430, 472 (1999) (\xe2\x80\x9cNo part of any funds appropriated in this or any other Act shall be used . . . for publicity or propaganda purposes . . . designed to\nsupport or defeat legislation pending before the Congress, except in presentation to the Congress\nitself.\xe2\x80\x9d); 5 U.S.C. \xc2\xa7 3107 (1994) (\xe2\x80\x9cAppropriated funds may not be used to pay a publicity expert unless\nspecifically appropriated for that purpose.\xe2\x80\x9d); 18 U.S.C. \xc2\xa7 1913 (1994) (\xe2\x80\x9cNo part of the money\nappropriated by any enactment of Congress shall . . . be used . . . to favor or oppose, by vote or\notherwise, any legislation or appropriation by Congress . . . .\xe2\x80\x9d).\n\n93\n\n227-329 VOL_25_PROOF.pdf 103\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nrespect to press; cautioning, however, that consultants \xe2\x80\x9cshould not and cannot be\nemployed in any effort to emphasize unduly or aggrandize the accomplishments of\nthe Department or its officials. . . . [W]hether a particular activity falls within this\ngeneral area can be determined only on the facts of each case.\xe2\x80\x9d). 4\nTo be sure, \xe2\x80\x9c[t]he line between information and \xe2\x80\x98publicity\xe2\x80\x99 is almost impossible\nto draw, since any information about an agency\xe2\x80\x99s activity will publicize the\nagency, and almost all publicity will contain information about the government or\nabout government programs.\xe2\x80\x9d Memorandum for Joseph F. Dolan, Assistant\nDeputy Attorney General, from Norbert A. Schlei, Assistant Attorney General,\nOffice of Legal Counsel, Re: Request of House Subcommittee for Interpretation of\n5 U.S.C. \xc2\xa7 54 at 3 (Mar. 1, 1963) (discussing predecessor to 5 U.S.C. \xc2\xa7 3107).\n\xe2\x80\x9cPublicity or propaganda\xe2\x80\x9d riders, however, require attempts at drawing that line.\nIn attempting to do so here, we can take some guidance from the opinions of\nthe Comptroller General and the General Accounting Office (\xe2\x80\x9cGAO\xe2\x80\x9d). 5 Noting the\nvagueness of the language of \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d riders in appropriations\nacts and the absence of legislative history shedding much light on their meaning,\nsee, e.g., Rep. Jack Brooks, 66 Comp. Gen. 707, 709 (1987); Sen. David Pryor,\nB-229,257, 1988 WL 227903, at *4 (Comp. Gen. June 10, 1988); Sen. Lowell\nWeicker, Jr., B-223,098, 1986 WL 64325, at *6 (Comp. Gen. Oct. 10, 1986);\n\n4\nSee also Memorandum for the Attorney General from Theodore B. Olson, Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Proposed Television Pilot/Series on the Drug Enforcement\nAdministration at 5-6 (Sept. 14, 1984) (upholding use of appropriated funds to cooperate with\ndevelopment of television series on Drug Enforcement Administration (\xe2\x80\x9cDEA\xe2\x80\x9d), in part because\nagency\xe2\x80\x99s activities \xe2\x80\x9cwould be limited to the provision of accurate information concerning the DEA\xe2\x80\x99s\nactivities, reviewing the accuracy and fairness of any subsequent dramatization of these stories,\nguarding against the misuse of the Department\xe2\x80\x99s seals or identity, and safeguarding, to the extent\nnecessary, information in Department files,\xe2\x80\x9d activities which would not \xe2\x80\x9camount to the aggrandizement\nthat is prohibited by statute.\xe2\x80\x9d); Memorandum for Theodore B. Olson, Assistant Attorney General,\nOffice of Legal Counsel, from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal\nCounsel, Re: Authority of the Office of Justice Assistance, Research, and Statistics at 3 (Jan. 6, 1983)\n(permitting agency to use appropriated funds to support crime prevention advertising campaign but\ndeeming significant the fact that advertisements in question would not make reference to the Federal\ngovernment or its activities; therefore, advertisements were not produced \xe2\x80\x9cfor the purpose of reflecting\ncredit upon an activity or upon the officials charged with its administration.\xe2\x80\x9d); International Youth\nExchange, 6 Op. O.L.C. at 548, 549 (concluding that a \xe2\x80\x9climited use of appropriated funds [by the\nUnited States Information Agency (\xe2\x80\x9cUSIA\xe2\x80\x9d)] to support a reasonable and carefully controlled\nadvertising campaign by the [President\xe2\x80\x99s Council on International Youth Exchange]\xe2\x80\x9d in support of\nyouth exchange programs was proper in part because USIA has specific statutory authority to promote\nsuch activities by the private sector, but \xe2\x80\x9cthe proposed USIA advertising campaign should be carefully\ntailored and scrutinized so that it does not unduly emphasize the accomplishments of the USIA or\naggrandize the agency or its officials.\xe2\x80\x9d).\n5\nThe Comptroller General is an officer of the Legislative Branch, see Bowsher v. Synar, 478 U.S.\n714, 727-32 (1986), and, historically, the Executive Branch has not considered itself bound by the\nComptroller General\xe2\x80\x99s legal opinions if they conflict with the legal opinions of the Attorney General or\nthis Office. Nonetheless, the Comptroller General\xe2\x80\x99s opinions can provide guidance on certain technical\nmatters.\n\n94\n\n227-329 VOL_25_PROOF.pdf 104\n\n10/22/12 11:10 AM\n\n\x0cGeneral Services Administration Use of Government Funds for Advertising\n\nRosenthal, B-184,648, 1975 WL 9457, at *6, the Comptroller General has\nconstrued the language to prohibit (among other things) \xe2\x80\x9cpublicity of a nature\ntending to emphasize an agency\xe2\x80\x99s own importance, which [he has] labeled as \xe2\x80\x98selfaggrandizement.\xe2\x80\x99\xe2\x80\x9d Pryor, B-229,257, 1988 WL 227903, at *5. 6 His interpretations\nof \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d riders have acknowledged, however, that agencies\nhave significant legitimate interests in publicizing their activities and programs.\nRecognizing that \xe2\x80\x9cevery agency has a legitimate interest in communicating with\nthe public and with the Congress regarding its functions, policies, and activities,\xe2\x80\x9d\n1 General Accounting Office, Principles of Federal Appropriations Law at 4-162\n(2d ed. 1991) (\xe2\x80\x9cFederal Appropriations Law\xe2\x80\x9d), the GAO has stated that it is\n\xe2\x80\x9creluctant to find a violation where the agency can provide a reasonable justification for its activities,\xe2\x80\x9d id. at 4-165; see also Sen. Thomas F. Eagleton, B-178,528,\n1978 WL 10850, at *2 (Comp. Gen. July 27, 1978). As the GAO\xe2\x80\x99s Federal\nAppropriations Law textbook states, \xe2\x80\x9c[i]n evaluating whether a given action\nviolates a \xe2\x80\x98publicity or propaganda\xe2\x80\x99 provision, GAO will rely heavily on the\nagency\xe2\x80\x99s administrative justification. In other words, the agency gets the benefit of\nany legitimate doubt.\xe2\x80\x9d 1 Federal Appropriations Law at 4-163.\nAccordingly, in its most recent construction of such an appropriations rider, the\nComptroller General determined that a report issued by the Department of\nHousing and Urban Development (\xe2\x80\x9cHUD\xe2\x80\x9d) criticizing proposed congressional\ncuts in HUD programs did not violate the rider. See Application of Anti-Lobbying\nRestrictions to HUD Report Losing Ground, B-284,226.2, 2000 WL 1193462, at\n*3 (Comp. Gen. Aug. 17, 2000) (noting that \xe2\x80\x9c[p]ublic officials may report on the\nactivities and programs of their agencies, may justify those policies to the public,\nand may rebut attacks on those policies.\xe2\x80\x9d). Similarly, in its first construction of the\nban, the Comptroller General concluded that some press releases issued by the\nNational Labor Relations Board Division of Information (\xe2\x80\x9cNLRB\xe2\x80\x9d) did not violate\nthe rider because the rider does not prohibit \xe2\x80\x9cthose functions [of the NLRB press\noffice] which deal with dissemination to the general public, or to particular\ninquirers, of information reasonably necessary for the proper administration of the\nlaws the duty for the enforcement of which falls upon [the NLRB],\xe2\x80\x9d Appropriations\xe2\x80\x94Limitations\xe2\x80\x94Publicity And Propaganda Prohibition\xe2\x80\x94Labor\xe2\x80\x94Federal\nSecurity Appropriation Act, 1952, 31 Comp. Gen. 311, 314 (1952), but rather was\nintended, like other statutory provisions similarly limiting appropriations expenditures, \xe2\x80\x9cto prevent publicity of a nature tending to emphasize the importance of the\nagency or activity in question,\xe2\x80\x9d id. at 313; Sen. Barry Goldwater, B-194,776, 1979\nWL 12361, at *1 (Comp. Gen. June 4, 1979) (\xe2\x80\x9c[T]his provision prohibits agency\n6\nThe Comptroller General has also construed the language to prohibit \xe2\x80\x9ccovert propaganda activities\ncarried on by covered agencies,\xe2\x80\x9d Pryor, B-229,257, 1988 WL 227903, at *4, and certain grass-roots\nactivities clearly designed to enlist the public in efforts to lobby Congress, see, e.g., Rep. Glenard P.\nLipscomb, B-136,762, 1958 WL 2169, at *2 (Comp. Gen. Aug. 18, 1958). Neither of these interpretations is at issue here.\n\n95\n\n227-329 VOL_25_PROOF.pdf 105\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nofficials from using funds, subject to this restriction, solely for publicity of a\nnature tending to emphasize the importance of the agency or a particular agency\nactivity.\xe2\x80\x9d); see also HUD Report Losing Ground, B-284,226.2, 2000 WL 119346,\nat *3 (\xe2\x80\x9cThe restriction is directed typically toward activities whose obvious\npurpose is \xe2\x80\x98self-aggrandizement\xe2\x80\x99 and \xe2\x80\x98puffery.\xe2\x80\x99\xe2\x80\x9d); Eagleton, B-178,528, 1978 WL\n10850, at *3 (finding that mass mailing by Republican National Committee of\nexcerpts from newspapers praising president, transmitted with letter prepared by\nmember of White House staff on State Department letterhead, did not violate\nsimilar prohibition, because \xe2\x80\x9c[i]n this case the expenditure of appropriated funds\nwas not for the aggrandizement of the Department of State.\xe2\x80\x9d). 7\nIII.\nIn light of the interpretation given to \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d riders by our\nOffice as well as by the Comptroller General, we believe that GSA would not be\nprohibited from using appropriated funds to support a reasonable and carefullycontrolled advertising campaign that serves the goal of informing other federal\nagencies about the products and services available from GSA. The \xe2\x80\x9cpublicity or\npropaganda\xe2\x80\x9d rider does not forbid an agency from providing information about its\nprograms and activities, as long as the agency is not aggrandizing itself. Providing\ninformation is one means by which an agency achieves its mission. In this\ninstance, moreover, the mission of the agency justifies presenting information in\nthe form of advertising. Because of GSA\xe2\x80\x99s statutory mandate to procure services\n7\nOur 1985 Media Consultants opinion cited only two cases in which the Comptroller General had\nfound agency activity to violate a ban on unauthorized publicity. Id. at 4. In the first case, the\nComptroller General concluded that because a speech by the Deputy Assistant Secretary of Defense\nwas \xe2\x80\x9cclearly designed to enlist the aid\xe2\x80\x9d of an industry association in lobbying for defense programs, it\nwent \xe2\x80\x9cfar beyond the established practice of government agencies to keep the public informed of the\naims and achievements of authorized government programs,\xe2\x80\x9d and therefore violated the publicity and\npropaganda restriction. Lipscomb, B-136,762, 1958 WL 2169, at *2. The second case, Federal Housing\nAdministration\xe2\x80\x94Conventions and Gatherings\xe2\x80\x94Statutory Construction, 14 Comp. Gen. 638 (1935),\npredated the inclusion of the rider in general appropriations statutes. In that case, the Comptroller\nGeneral found that a campaign by the Federal Housing Authority to promote home owner improvements violated a specific statutory provision prohibiting it from sponsoring campaigns and conventions\nnot otherwise authorized. Id. at 641. See also Weicker, B-223,098, 1986 WL 64325, at *1, *6 (noting\nthat \xe2\x80\x9csuggested editorials\xe2\x80\x9d supporting Administration policies prepared by Small Business Administration for distribution to newspapers violate rider because they \xe2\x80\x9care misleading as to their origin and\nreasonably constitute \xe2\x80\x98propaganda\xe2\x80\x99 within the common understanding of that term\xe2\x80\x9d); 1 Federal\nAppropriations Law at 4-161 to 4-179 (citing additional examples).\nEditor\xe2\x80\x99s Note: The version of this opinion originally published online stated that the Federal\nAppropriations Law textbook cited only two cases in which the Comptroller General found activity to\nviolate a ban on unauthorized publicity. Strictly speaking, it was the Media Consultants opinion that\nmade this representation, regarding an outdated version of the GAO textbook, and not the second\nedition of Federal Appropriations Law that is discussed in the text of the opinion. This footnote has\naccordingly been revised to make clear that there are more examples than just the two identified in the\nMedia Consultants opinion.\n\n96\n\n227-329 VOL_25_PROOF.pdf 106\n\n10/22/12 11:10 AM\n\n\x0cGeneral Services Administration Use of Government Funds for Advertising\n\nand supplies for federal agencies in a manner that it determines is \xe2\x80\x9cadvantageous\nto the Government in terms of economy, efficiency, or service,\xe2\x80\x9d 40 U.S.C.\n\xc2\xa7 481(a), GSA\xe2\x80\x99s mission includes being a provider of goods and services to\nfederal agencies. GSA advertisements that reasonably deal with the efficiency,\neconomy, or quality of GSA products would carry out that mission and would not\nviolate the \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d ban. However, like the USIA advertising\ncampaign, see International Youth Exchange, 6 Op. O.L.C. at 549, the proposed\nGSA advertising campaign should be carefully tailored so that it does not unduly\nemphasize the accomplishments of GSA or aggrandize the agency, its functions, or\nits officials, but rather provides information reasonably within GSA\xe2\x80\x99s statutory\nmandate. Proposed advertisements should inform potential customers about the\nqualities of GSA\xe2\x80\x99s products and services and offer the sort of information about\nGSA\xe2\x80\x99s capabilities that could affect potential customers\xe2\x80\x99 decisions regarding\nsuppliers. 8\nIV.\nFinally, we do not believe that the principles set forth in some opinions of the\nComptroller General addressing limitations on advertising by federal agencies\nbeyond the \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d rider would prohibit the GSA\xe2\x80\x99s advertisements to other federal agencies. The available opinions concern the use of\nappropriations to advertise to the general public, not to other agencies. Even\nassuming the standards set forth in these opinions would apply, GSA would\napparently be permitted to advertise in order to inform other federal agencies\nabout its products and services. The GAO has stated generally that\n[w]hether an agency\xe2\x80\x99s appropriations are available for advertising,\nlike any other expenditure, depends on the agency\xe2\x80\x99s statutory authority. Whether to advertise and, if so, how far to go with it are determined by the precise terms of the agency\xe2\x80\x99s program authority in conjunction with the necessary expense doctrine and general restrictions\non the use of public funds such as the various anti-lobbying statutes.\n1 Federal Appropriations Law at 4-188; see also Mr. Byrne A. Bowman,\nB-114,874.30, 1976 WL 10445, at *2 (Comp. Gen. Mar. 3, 1976) (concluding that\nU.S. Postal Service\xe2\x80\x99s statutory mandate to \xe2\x80\x9c\xe2\x80\x98provide philatelic services\xe2\x80\x99\xe2\x80\x9d and\n\xe2\x80\x9c\xe2\x80\x98promote[] and provide adequate and efficient postal services at fair and reasonable rates\xe2\x80\x99\xe2\x80\x9d implies authority to advertise sale of stamps) (quoting 39 U.S.C.\n\xc2\xa7\xc2\xa7 404(5) & 403(a)). Given GSA\xe2\x80\x99s statutory responsibility to ensure the procure8\nEven if GSA would get the benefit of any legitimate doubt about whether its advertisements are\nconsistent with this limitation, the Administrator, as shown above, would not have unfettered discretion\nover the content of these advertisements.\n\n97\n\n227-329 VOL_25_PROOF.pdf 107\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nment of products and services for federal agencies in an economical and efficient\nmanner, advertisements that inform other federal agencies of these products and\nservices would seem to be a \xe2\x80\x9cnecessary expense,\xe2\x80\x9d as long as they do not violate\nother statutory limitations, such as the \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d bar.\nDANIEL L. KOFFSKY\nActing Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n98\n\n227-329 VOL_25_PROOF.pdf 108\n\n10/22/12 11:10 AM\n\n\x0c'


b'Application of the Posse Comitatus Act\nto Assistance to the United States\nNational Central Bureau\nThe assistance to the United States National Central Bureau by military agencies that is per\xc2\xad\nmitted by the Posse Comitatus Act is not limited to investigations into violations of the\nUniform Code of Military Justice. Additional situations under which assistance is per\xc2\xad\nmitted is discussed in the memorandum.\n\nJuly 3, 1989\nM e m o r a n d u m O p in io n f o r t h e C h ie f\nI n t e r p o l - U n it e d S t a t e s N a t io n a l C e n t r a l B u r e a u\n\nThis responds to your request that we reconsider our June 5, 1986 opin\xc2\xad\nion to you advising that the Posse Comitatus Act, 18 U.S.C. \xc2\xa7 1385, per\xc2\xad\nmits U.S. military agencies to cooperate with the United States National\nCentral Bureau ( \xe2\x80\x9cUSNCB\xe2\x80\x9d) only with respect to investigations into viola\xc2\xad\ntions o f the Uniform Code o f Military Justice ( \xe2\x80\x9cUCMJ\xe2\x80\x9d) by a member o f\nthe armed services. We agree for the reasons described below that recon\xc2\xad\nsideration o f our 1986 opinion is warranted.\nThe USNCB is a component o f the Department o f Justice created to\nassist the Attorney General in fulfilling his responsibility to \xe2\x80\x9caccept and\nmaintain, on behalf o f the United States, membership in the International\nCriminal Police Organization.\xe2\x80\x9d 22 U.S.C. \xc2\xa7 263a. Generally, the USNCB\nacts as the representative o f the United States in coordinating the inter\xc2\xad\nnational law enforcement work o f INTERPOL. See 28 C.ER. \xc2\xa7 0.34\n(describing the functions o f the USNCB). Other federal agencies with law\nenforcement responsibilities aid the USNCB by detailing personnel to\nassist with its international law enforcement work.\nIn 1986, you asked this Office whether the USNCB is barred from\naccepting assistance from the military intelligence agencies o f the United\nStates by Article 3 o f the INTERPOL constitution, which prohibits\nUSNCB involvement in matters o f a \xe2\x80\x9cmilitary ... character.\xe2\x80\x9d1 We advised\nthat the INTERPOL constitution permits military intelligence agencies to\ncooperate with the USNCB in the investigation o f common law crimes\n1 Interpol Const., reprinted, in Michael Fooner, Interpol: Issues in World Crime and International\nCrim inal Justice app B (1989).\n\n195\n\n\x0ceven if they also constitute violations o f the UCMJ.2 We acknowledged,\nhowever, that this Office does not have the authority to interpret the\nINTERPOL constitution in a manner that is binding on other members of\nINTERPOL.\nWe then observed that cooperation between the USNCB and United\nStates military intelligence agencies raises a question under the Posse\nComitatus Act, which imposes additional restrictions on the military\nassistance that may be received by the USNCB. The Posse Comitatus Act\nprovides:\nWhoever, except in cases and under circumstances express\xc2\xad\nly authorized by the Constitution or Act o f Congress, will\xc2\xad\nfully uses any part o f the Army or the Air Force as a posse\ncomitatus or otherwise to execute the laws shall be fined\nnot more than $10,000 or imprisoned not more than two\nyears, or both.\n18 U.S.C. \xc2\xa7 1385. Our brief discussion o f this issue concluded that\nbecause federal law expressly authorizes the military to enforce the\nUCMJ, see 10 U.S.C. \xc2\xa7\xc2\xa7 801-940, the Posse Comitatus Act does not pro\xc2\xad\nhibit military personnel from engaging in law enforcement activities nec\xc2\xad\nessary to enforce the UCMJ. 1986 Opinion at 8. We went on to suggest\nthat military agencies may assist the USNCB only with respect to investi\xc2\xad\ngations into violations of the UCMJ by a member o f the armed services.\nId. at 9.\nYou have requested that w e reconsider our opinion to the extent that it\nsaid that military assistance may only be used in investigations into\nUCMJ violations. You have provided us with a memorandum prepared by\nthe Office o f Special Investigations o f the Department o f the Air Force\nwhich identifies several situations in addition to investigations into\nalleged violations o f the UCMJ in which the Act assertedly does not\napply.3\nWe have examined each o f the situations described in the Air Force\nMemorandum. Furthermore, we have examined the regulations promul\xc2\xad\ngated by the Department o f Defense implementing the restrictions\nimposed by the Posse Comitatus Act on the participation o f Department\npersonnel in civilian law enforcement. See 32 C.F.R. \xc2\xa7 213.10. With one\nexception, which we consider separately below, the situations described\nin the Air Force Memorandum are discussed in the Department o f\n2 Memorandum fo r Richard C Stiener, Chief, INTERPOL-Umted States National Central Bureau, from\nCharles J. Cooper, Assistant Attorney General, O ffice o f Legal Counsel, Re \xe2\x80\xa2 Coopemtion by the United\nStates Central Bureau with United States M ilitary Agencies (June 5, 1986) ( \xe2\x80\x9c1986 Opinion")\n3 Memorandum from Donald A. Cox, J r, M^jor, USAF, Staff Judge Advocate, Re: Cooperation by the\nUnited States National Central Bureau with United States M ilitary Agencies (Aug. 27, 1987) ( \xe2\x80\x9cAir\nF orce Memorandum\xe2\x80\x9d)\n\n196\n\n\x0cDefense regulations. We believe that each o f the regulatory authoriza\xc2\xad\ntions o f military assistance is permitted by the Posse Comitatus Act.\nFirst, the regulations provide that actions taken for the primary pur\xc2\xad\npose o f furthering a military or foreign affairs function o f the United\nStates are permitted. 32 C.F.R. \xc2\xa7 213.10(a)(2)(i). We agree that the Posse\nComitatus Act does not prohibit military involvement in actions that are\nprimarily military or foreign affairs related, even if they have an inciden\xc2\xad\ntal effect on law enforcement, provided that such actions are not under\xc2\xad\ntaken for the purpose o f executing the laws. Second, the regulations per\xc2\xad\nmit actions taken pursuant to express statutory authority to assist\nofficials in the execution o f the laws. 32 C.F.R. \xc2\xa7 213.10(a)(2)(iv).4 The\nplain language o f the Posse Comitatus Act itself provides that it does not\napply \xe2\x80\x9cin cases and under circumstances expressly authorized by the\nConstitution or Act o f Congress.\xe2\x80\x9d Finally, the regulations provide that\nactions taken by civilian employees o f the Department o f Defense are not\nsubject to the Posse Comitatus Act. 32 C.F.R. \xc2\xa7 213.10(b)(3). This is con\xc2\xad\nsistent with the understanding o f this Office that Congress did not intend\ncivilian employees to be considered \xe2\x80\x9cpart o f the Army or the Air Force\xe2\x80\x9d\nwithin the meaning o f the Posse Comitatus Act. Therefore, we believe\nthat these Department o f Defense regulations are consistent with the\nPosse Comitatus Act. Of course, if you have further questions regarding\nthe permissibility of certain activities under the Act or regulations, we\nwould be pleased to assist you in such matters.\nThe remaining issue raised by the Air Force Memorandum that is not\naddressed by the regulations concerns the extraterritorial application o f\nthe Posse Comitatus Act. There is no dispute that the Act does not apply\nextraterritorially at least where the U.S. military is acting as the govern\xc2\xad\nment within an occupied territory. See, e.g., Chandler v. United States,\n171 F.2d 921, 936 (1st Cir. 1948), cert, denied, 336 U.S. 918 (1949). It is not\nsettled, however, whether the Act restricts extraterritorial use o f the mil\xc2\xad\nitary to execute the law in other contexts.5 As observed in a report pre\xc2\xad\n\n4 The regulations identify several statutes that allow military assistance in law enforcement, notwith\xc2\xad\nstanding the Posse Comitatus Act We do not know if this list is exhaustive, nor have w e reviewed the\nstatutes listed to determine the scope o f their exceptions to the Posse Comitatus Act Thus, you should\nexamine the underlying statute, not just the description in the regulations, before relying on one o f these\nstatutes\n5The A ir Force Memorandum cited Chandler v. United States, 171 F.2d 921, 936 (1st Cir. 1948), cert\ndenied, 336 U S. 918 (1949), for the proposition that the Posse Comitatus A ct has no extraterritorial appli\xc2\xad\ncation. Chandler was the first o f three post-World War II cases in which American citizens suspected o f\ntreason w ere arrested in Germany o r Japan and brought to the United States for tnal. In each instance,\nthe defendant challenged the jurisdiction o f the court, contending that the use o f the military in the arrest\nand transportation to the Uruted States violated the Posse Comitatus A ct and thus deprived the court o f\njurisdiction. Each defendant lost. In Chandler, the court held:\n{TJhis is the type o f criminal statute which is properly presumed to have no extraterritorial\napplication in the absence o f statutory language indicating a contrary intent Particularly, it\nwould be unwarranted to assume that such a statute was intended to be applicable to occuContinued\n\n197\n\n\x0cpared by a House committee considering amendments to the Act in 1982,\n\xe2\x80\x9cit is not possible to definitely conclude whether the Act has extraterri\xc2\xad\ntorial application.\xe2\x80\x9d H.R. Rep. No. 71, 97th Cong., 1st Sess., pt. 2, at 7\n(1981), reprinted in 1981 U.S.C.C.A.N. 1785, 1789.\nBecause your request to this Office does not directly raise the full\nrange o f issues concerning the extraterritorial effect o f the Act, and\nbecause resolution o f those issues is unnecessary given our conclusion\nthat military assistance to the USNCB is permissible in the instances\ndescribed by the Department o f Defense regulations, we have not con\xc2\xad\nsidered these issues. We would be glad to do so if the USNCB ever con\xc2\xad\ntemplates receiving military assistance for an extraterritorial investiga\xc2\xad\ntion that is not permitted by any o f the exceptions to the restrictions of\nthe Posse Comitatus Act outlined in the regulations.\nWILLIAM P. BARR\nAssistant Attorney General\nOffice o f Legal Counsel\n\n6(\n\n.continued)\npied enem y territory, where the m ilitary power is in control and Congress has not set up a\ncivil regim e\n\n171 F.2d at 936 (citations omitted). Then, in GiUars v. United States, 182 F2d 962, 973 (D.C. Cir. 1950),\nthe court held that there was no Posse Comitatus A ct violation because the military was the only author\xc2\xad\nity in Germany at the time: \xe2\x80\x9cThe nght to arrest being a part o f the nght to govern, it cannot be doubted\nthat our Arm y o f Occupation was authorized to arrest notwithstanding [the Posse Comitatus A ct]." The\ncourt expressly declined to consider w hether the A ct w as generally extraterritorial in its scope. Id.\nFinally, the court in Iva Ikuko Toguri D \xe2\x80\x99A guino v United States, 192 F.2d 338, 351 (9th Cir 1951), cert\ndenied, 343 U.S. 935 (1952), cited Chandler and GiUars and rejected Tokyo Rose\xe2\x80\x99s argument that her\ntransport from Japan to San Francisco by the military violated the Posse Comitatus Act.\nThus, although none o f these courts found a violation o f the Posse Comitatus A ct despite military\ninvolvem ent in law enforcem ent overseas, the special conditions o f the post-war occupation may limit\nthe precedential authonty o f these decisions regarding the extraterritorial application o f the A ct gener\xc2\xad\nally. In avoiding a decision regarding the extraterritonal application o f the Posse Comitatus Act, for\nexam ple, the court in United States v. Yunis, 681 F. Supp. 891, 893 (D DC. 1988), noted that \xe2\x80\x9c [b]oth\n\nToguri D \xe2\x80\x99A guino and Chandler involved situations where the United States military has a substantial\npresence in post-war enem y territory.\xe2\x80\x9d\n\n198\n\n\x0c'