b'Constitutionality of Health Care Reform\n\nT h e p ro p o s e d H e alth S e c u rity A c t is w e ll w ith in th e a u th o rity o f C o n g re ss u n d e r th e C o m m e rc e\nC la u se , a n d it d o e s n o t v io la te T enth A m e n d m e n t o r o th e r p rin c ip le s o f fe d e ra lism .\n\nT h e p ro p o s a l c o n ta in s n o u n c o n stitu tio n a l ta k in g s o f p riv a te p ro p e rty o r in frin g e m e n t o f lib e rty in terests.\n\nT h e p ro p o s e d d e le g a tio n o f a d m in istra tiv e a u th o rity to th e N a tio n a l H e a lth B o a rd , and, fro m it, to state\na llia n c e s , is n o t a n im p e rm is s ib le d e le g a tio n o f le g is la tiv e a u th o rity\n\nO c to b e r 2 9 , 1993\n\nM e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l\na n d the\n\nA s s o c ia t e A t t o r n e y G e n e r a l\n\nThe Health Security Act (\xe2\x80\x9cAct\xe2\x80\x9d) creates for all citizens the security that health\ncare coverage will always be available to them. It accomplishes this by building on\nthe existing American system for providing health care, which largely operates\nthrough employers. Much of the system will be administered by the states, which\nwill have primary responsibility to ensure that regional health alliances are estab\xc2\xad\nlished, to certify accountable health plans, and to provide mechanisms to resolve\ncomplaints and disputes.\nThis legislation is well within the long-recognized authority of the federal gov\xc2\xad\nernment. It is fair to say that, just as the substantive contents of the legislation\ndraw on existing models and approaches to health care delivery and financing, the\nstructure, processes and mechanisms the legislation uses to accomplish its substan\xc2\xad\ntive objectives draw on already existing and validated techniques that the national\ngovernment has employed on numerous other occasions.\nNotwithstanding the well-established legitimacy of the means that the Act em\xc2\xad\nploys to achieve a public purpose o f paramount importance, some special interests\nhave such financial stake in the current system that they have strong incentives to\nchallenge the Act even on highly implausible grounds, if the consequences of do\xc2\xad\ning so were to alter the ultimate design of the system even slightly in their favor.\nCongressman Richard Gephardt has described the Act as the most historic piece\nof social legislation since the Social Security Act of 1935, and in a curious way the\nchallenges to the constitutionality o f the Health Security Act\xe2\x80\x99s basic structure re\xc2\xad\nplay arguments levelled at the Social Security Act and other New Deal legislation\nenacted over fifty years ago. These arguments were considered and dismissed\nthen, they remain unsound to this day, and they should not be allowed in any way\nto deflect consideration of the merits of the President\xe2\x80\x99s proposal \xe2\x80\x94 nor could they\n\n124\n\n\x0cC onstitutionality o f H ealth Care R eform\n\nsucceed against that proposal without threatening to unravel numerous vital statutes\nenacted since the 1930\xe2\x80\x99s.\n\xe2\x80\xa2 The National Government Possesses the Constitutional\nAuthority to Undertake National Health Care Reform.\nThe most fundamental constitutional challenge to national health care reform is\nthat it lies beyond the power of Congress and the President to enact. Fortunately,\nthe Supreme Court has long since rejected the crabbed view of national legislative\nauthority that necessarily lies behind such a challenge.\nDuring the m id-l930\xe2\x80\x99s, when for a brief time the Court invalidated some as\xc2\xad\npects of the New Deal, a majority of the Justices accepted the argument that Con\xc2\xad\ngress lacks the power \xe2\x80\x9cto protect the general public interest and the health and\ncomfort of the people.\xe2\x80\x9d 1 That argument was predicated on an exceedingly narrow\nconception of the authority of the federal government to address problems of na\xc2\xad\ntional dimension under the commerce clause of the Constitution. The Court\nquickly abandoned that attack on the New Deal as inconsistent with the text and\nstructure of the Constitution and, indeed, with the Court\xe2\x80\x99s own precedents.2 Noting\nthat \xe2\x80\x9cthere has long been recognition of the authority of Congress to obtain . . .\nsocial, health or economic advantages from the exercise of constitutional powers,\xe2\x80\x9d3\nthe Court concluded that Congress\xe2\x80\x99s authority over \xe2\x80\x9ccommerce among the several\nStates\xe2\x80\x9d empowers the national government to address all activity, \xe2\x80\x9cwhatever its\nnature . . . if it exerts a substantial economic effect on interstate commerce.\xe2\x80\x9d4 Up\xc2\xad\nholding Congress\xe2\x80\x99s power to regulate the sale and distribution of coal because of\nthe impact of that industry on American economic and social life, the Court stated:\nIf the strategic character of this industry in our economy and the\nchaotic conditions which have prevailed in it do not justify legisla\xc2\xad\ntion, it is difficult to imagine what would. To invalidate this Act we\nwould have to deny the existence of power on the part of Congress\nunder the commerce clause to deal directly and specifically with\nthose forces which in its judgment should not be permitted to dislo\xc2\xad\n1 C arter v. C airer C oal Co , 298 U S 238, 290 (1936). Justice C ardozo, jo in e d by Justices B randeis and\nStone, d issented from the m ajority\'s denial to C ongress o f the pow er to deal w ith a problem \xe2\x80\x94 unrestrained\ncom petition in the coal industry \xe2\x80\x94 that \xe2\x80\x9cchoked and b u rd en ed \'\xe2\x80\x99 com m erce and had produced \xe2\x80\x9cbankruptcy\nand waste and ru in " Id at 331 (C ardozo, J , dissenting). Five years later, the Suprem e C ourt explicitly\nendorsed Justice C ard o zo \'s understanding o f congressional p o w er w ith only one Justice in dissent See\nSunshine A n th n u ite C oal Co v A dkins, 310 U S 3 8 1 ,3 9 5 (1940) The follow ing Term , a unanim ous C ourt\ndism issed the view s o f the C arter C oal m ajority as inconsistent w ith sound constitutional principle U nited\nStates v. D a rb y, H12 U S. 100, 123 (1941)\n2 The C o u rt\'s flirtation with a lim ited view o f national pow er was b rie f indeed. C arter C oal was decided\non M ay 18, 1936. and effectively repudiated by a trilogy o f cases decided on A pril 12. 1937 See, t #., N LR B\nv Jones & Laughhn S teel C orp ,3 0 1 U S . I (1937)\n3 C loverleaj B utter Co v Patterson, 3 15 U S 148, 163 (1942)\n4 W ic k a rd v F ilh u m , 3 17 U S. I l l , 125 (1942)\n\n125\n\n\x0cOpinions o f th e Office o f L egal C ounsel\n\ncate an important segment o f our economy and to disrupt and bur\xc2\xad\nden interstate channels of trade. . . . Congress under the commerce\nclause is not impotent to deal with what it may consider to be dire\nconsequences of laissez-faire.5\nThe American health care industry is one of the largest and fastest growing\nsegments of the American economy, and it has the most direct and crucial impact\non the lives of all Americans. Spiralling health care costs and inequities in the\nprovision of health care services have an immediate and massive effect on the na\xc2\xad\ntional economy and thus upon interstate commerce. As a result Congress unques\xc2\xad\ntionably possesses the power \xe2\x80\x9cto deal directly and specifically\xe2\x80\x9d with health care in\norder to obtain \xe2\x80\x9csocial, health [and] economic advantages\xe2\x80\x9d for the American peo\xc2\xad\nple.\n\xe2\x80\xa2 National Health Care Reform Preserves our Federal System.\nThe President\xe2\x80\x99s health care reform plan will invite state participation in the for\xc2\xad\nmulation and administration of national health policy; if an individual state gov\xc2\xad\nernment should choose not to participate, the federal government will administer\nthe health care system in that state. This type of cooperative federal-state program\nis now quite common in federal legislation. Examples range from many of the\nmajor modern environmental laws, including the Clean Air Act, the Clean Water\nAct, and the Resource Conservation and Recovery Act, to much older legislation,\nsuch as Title IX of the Social Security Act, establishing a system for unemploy\xc2\xad\nment compensation. Challenges to such legislation based on constitutional princi\xc2\xad\nples of federalism were made during the New Deal, when it was alleged that the\nnational reform legislation of that era stripped the states of powers that were re\xc2\xad\nserved to them by the Tenth Amendment. But that argument was wholly without\nmerit then, and it remains wholly without merit today.\nIn rejecting the notion that principles of federalism somehow rendered the old\nage benefits of the Social Security Act of 1935 invalid under the Tenth Amend\xc2\xad\nment, the Supreme Court admonished that \xe2\x80\x9cnation-wide calamities] . . . may be\nchecked, if Congress so determines, by the resources of the Nation [in order] to\nsave men and women from the rigors of the poor house as well as from the haunt\xc2\xad\ning fear that such a lot awaits them when journey\xe2\x80\x99s end is near.\xe2\x80\x9d6 More funda\xc2\xad\nmentally, that same day, the Court also rejected a Tenth Amendment challenge to\nelements of the Social Security Act that created a cooperative plan whereby states\nwere free to provide unemployment compensation and thereby trigger benefits un\xc2\xad\nder the Act for employers in the state. In so doing, the Court issued a resounding\ndeclaration that Congress may enact legislation that addresses a \xe2\x80\x9cproblem . . . na\xc2\xad\n5 S u n sh in e A n th ra c ite C o a l Co. v A dkins, 310 U.S. a t 3 95-96\n6 H e lve rin g v. D avis, 301 U .S. 619, 641 (1 9 3 7 )\n\n126\n\n\x0cC onstitutionality o f H ealth Care R eform\n\ntional in area and dimensions\xe2\x80\x9d by providing the states with the option to share in\nthe solution or not, at the choice of the individual state.7 The Court did not accept\nthe claim that a state is \xe2\x80\x9ccoerced\xe2\x80\x9d by Congress when, pursuant to federal legislation\nthe state \xe2\x80\x9ccho[oses] to have relief administered under laws of her own making, by\nagents of her own selection, instead of under federal laws, administered by federal\nofficers.\xe2\x80\x9d8 The Court described such legislation as \xe2\x80\x9cthe creation of a larger free\xc2\xad\ndom, the states and the nation joining in a cooperative endeavor to avert a common\nevil.\xe2\x80\x9d9 Similarly, under the President\xe2\x80\x99s health care proposals, states will have the\noption to formulate specific plans for implementing the federally guaranteed pack\xc2\xad\nage of benefits and to oversee the provision and quality of care to their residents as\na means of addressing our \xe2\x80\x9ccommon\xe2\x80\x9d health care crisis.\n* Health Care Reform will Respect the Constitutional\nRights of Individuals.\nThe President\xe2\x80\x99s plan will guarantee to all Americans an extensive package of\nhealth care benefits while protecting the individual\xe2\x80\x99s right to make fundamental\nchoices about health care. The plan will ensure the availability of health care by\ntaking into account the economic needs of providers and freeing them from unnec\xc2\xad\nessary paperwork. At the same time, as the President has stated, an essential prin\xc2\xad\nciple of national health care reform is the exercise of responsibility by health care\nproviders and consumers.\nReports in the media already suggest that opponents of health care reform are\npreparing to object to the plan as an intrusion into the Constitution\xe2\x80\x99s protections of\nliberty or as a \xe2\x80\x9ctaking\xe2\x80\x9d of private property.10 Neither argument can be sustained.\nIndeed, both arguments were pressed unsuccessfully by those who sought to un\xc2\xad\ndermine the New Deal.\nAlmost sixty years ago, the Supreme Court rejected the claim that New Deal-era\nregulation of the economic choices individuals or businesses make is unconstitu\xc2\xad\ntional. While the Justices acknowledged that \xe2\x80\x9c[u]nder our form of government the\nuse of property and the making of contracts are normally matters of private and not\nof public concern,\xe2\x80\x9d the Court stated that\nEqually fundamental with the private right is that of the public to\nregulate it in the common interest. . . . Thus has this court from the\nearly days affirmed that the power to promote the general welfare is\ninherent in government. . . . [N]o exercise of the legislative pre\xc2\xad\nrogative to regulate the conduct of the citizen [can be imagined]\n7 S te w a rd M a ch in e Co. v D avis, 301 U S 548, 586 (1937)\n8 Id al 590.\n9 Id at 587.\n10 See E dw ard Felsenthal, AM A to Fight Lim its on D o c to rs \xe2\x80\x99 F ees, W all Si. J., Sept. 9, 1993.\n\n127\n\n\x0cOpinions o f th e Office o f L egal C ounsel\n\nwhich will not to some extent abridge his liberty or affect his prop\xc2\xad\nerty. But subject only to constitutional restraint the private right\nmust yield to the public need.11\nThree years later, the Court explained that the liberty protected by the Constitution\n\xe2\x80\x9cis liberty in a social organization which requires the protection of law against the\nevils which menace the health, safety, morals and welfare of the people.\xe2\x80\x9d 12 Health\ncare reform will require responsible participation by providers and consumers alike\n\xe2\x80\x9cin the interests of the community.\xe2\x80\x9d 13 In doing so the President\xe2\x80\x99s plan preserves\n\xe2\x80\x98\xe2\x80\x9c the balance which our Nation, built upon postulates of respect for the liberty of\nthe individual, has struck between that liberty and the demands of organized soci\xc2\xad\nety.\xe2\x80\x99\xe2\x80\x9d 14\nThe contention that health care reform would in some manner effect an uncon\xc2\xad\nstitutional \xe2\x80\x9ctaking\xe2\x80\x9d of the property o f providers rests on a mistaken equation of the\nConstitution\xe2\x80\x99s requirements with the dictates of a particular economic theory.15\nHealth care reform undeniably will have an impact on the business decisions and\neconomic interests of providers, and it will require financial contributions and per\xc2\xad\nsonal accountability on the part of consumers. As such, however, the plan will be\nan \xe2\x80\x9cadjustm ent of] the benefits and burdens of economic life to promote the com\xc2\xad\nmon good\xe2\x80\x9d 16 rather than a taking o f private property.17\n\n11 N eh b ia v. N ew York, 291 U S 502, 5 2 3 -2 5 (1934) W hile the p articular question before the C ourt in\nN eb b ia c o n cern ed the relationship between ind iv id u al liberty and the pow er o f a state, the C ourt expressly\nstated that w ithin its sphere C o n g ress also p o ssesses the \xe2\x80\x9cp o w er to prom ote the general w elfare\xe2\x80\x9d : \xe2\x80\x9cTouching\nthe m atters co m m itte d to it by the C onstitution, the U nited States possesses the pow er \xe2\x80\x9d Id at 524\n12 W est C o a st H o te l Co v P arrish, 300 U S. 379, 391 (1 9 3 7 ). As in N ebbia v N ew York, the Justices\nw ere ad d re ssin g the m eaning o f liberty in the context o f a challenge to state legislation but m ade it clear that\nth eir re a so n in g applied to the C onstitution\xe2\x80\x99s restraints on the federal governm ent as well.\n13 W est C o a st H o te l Co. v P a rrish , 300 U .S . at 391\n14 P la n n ed P a re n th o o d v C asev, 505 U .S. 833, 850 (1 9 9 2 ) (O \xe2\x80\x99C onnor, K ennedy, & Souter, JJ.) (quoting\nP o e v . V U m an, 367 U.S 497, 542 (1961) (H arlan , J., d issen tin g ))\n15 W hen a m ajority o f the Suprem e C o u rt\'s m em bers app eared to m ake ju st such an equation, Justice\nH olm es po in ted out the e rro r in their reasoning in a fam ous dissent T h e \xe2\x80\x9cconstitution is not intended to\ne m body a p a rtic u la r eco n o m ic theory, w h e th er o f p aternalism and the organic relation o f the citizen to the\nS tate o r o f laissez faire." L o c h n e r v N ew York, 198 U S 45, 75 (1905) The C ourt cam e to decide that\nJu stic e H o lm es w as right and the Lochner m ajo rity w rong m any decades ago. See F erguson v Skrupa, 372\nU .S. 726, 7 2 9 -3 0 (1 9 6 3 ) (citin g Justice H o lm e s\xe2\x80\x99s dissent and noting that \xe2\x80\x9d\xe2\x80\x98[t]he doctrine that prevailed in\nLochner\n. has long since b een discarded").\n16 P enn C en tra l T ransp Co v New York City\xe2\x80\x99, 438 U .S 1 0 4 ,1 2 4 (1 9 7 8 ) By requiring responsibility on\nthe part o f all, the plan clearly avoids econom ic im positions \xe2\x80\x9cdisproportionately concentrated on a few p e r\xc2\xad\ns o n s\xe2\x80\x9d \xe2\x80\x94 th e h allm ark o f an unconstitutional taking. Id\n17 T h at h ealth care reform w ill have d ifferin g econom ic im pacts on different persons, w hile obviously\ntrue, does not m ean that those impacts w ill be \xe2\x80\x9c tak in g s\xe2\x80\x9d w ithin the m eaning o f the C onstitution\n\xe2\x80\x9cG o v e rn m e n t hardly co u ld go on if to som e e x ten t values incident to property could not be dim inished w ith \xc2\xad\no u t paying for every such change in the g en eral la w \xe2\x80\x9d P en n sylva n ia C o a l Co v M ahon, 2 60 U S. 393, 413\n(1 9 2 2 ) S e e a lso U n ited S ta te s v. Sperrv C o rp , 493 U .S. 52 (1989)\n\n128\n\n\x0cC onstitutionality o f H ealth Care R eform\n\n\xe2\x80\xa2 The President and Congress May Establish a National\nHealth Board and State Health Alliances to Implement\nNational Health Care Reform.\nThe health care reform initiative will set up a National Health Board and corre\xc2\xad\nsponding state health alliances to implement the plan pursuant to congressionally\nprescribed standards. National level administrative agencies are commonplace\ncomponents of many federal statutes, and are necessary for the sound administra\xc2\xad\ntion of complicated systems. The devolution of some administrative responsibility\nto states, which then establish health alliances, is vital to the Act\xe2\x80\x99s objective of\nbuilding to the extent possible on the private sector aspects of our current health\ncare delivery system.\nOnce more, the Supreme Court\xe2\x80\x99s New Deal jurisprudence clearly establishes the\nlegitimacy of such delegations of administrative authority. The creation of admin\xc2\xad\nistrative bodies to carry out legislative mandates was a touchstone of New Deal\nreforms. At first, the Court concluded that such schemes constituted impermissible\ndelegations of legislative power.18 Quickly and firmly, however, the Court moved\naway from that approach \xe2\x80\x94 which was at odds with over a century of the Court\xe2\x80\x99s\nown constitutional interpretations. For example, in sustaining actions taken by an\nofficial of the Department of Labor pursuant to the Fair Labor Standards Act\nagainst a delegation doctrine challenge, the Court admonished that the Constitution\ndid not \xe2\x80\x9cpreclude Congress from resorting to the aid of administrative officers or\nboards as fact-finding agencies whose findings, made in conformity to previously\nadopted legislative standards or definitions of Congressional policy, have been\nmade prerequisite to the operation of its statutory command.\xe2\x80\x9d 19 Similarly, in re\xc2\xad\njecting a delegation doctrine challenge to actions of the Secretary of Agriculture\nunder the Tobacco Inspection Act of 1935, the Court observed that the statute set\nforth Congress\xe2\x80\x99s \xe2\x80\x9cpolicy for the establishment of standards . . . . [T]he provision\nthat the Secretary shall make the necessary investigations to that end and fix the\nstandards according to kind and quality is plainly appropriate and conforms to fa\xc2\xad\nmiliar legislative practice.\xe2\x80\x9d20 Relying on a constitutional precedent from the early\ndays of the nation, the Court stated that\n[w]e have always recognized that legislation must often be adapted\nto conditions involving details with which it is impracticable for the\nlegislature to deal directly . . . . In such cases, \xe2\x80\x9ca general provision\nmay be made, and power given to those who are to act under such\ngeneral provisions to fill up the details.\xe2\x80\x9d21\n18 See Panam a Refuting Co. v Ryan, 293 U S 388 ( 1935), S ch echter P oultry C orp v. U nited States, 295\nU.S 495 (1935)\n19 O pp Cotton M ills, Inc. v A d m in istra to r, 3 12 U S. 126, 144 (1941)\n20 C urrin v. W allace, 306 U S . I, 16-17 (1939).\n21 Id at 15 (quoting W avm an v Southard, 23 U S (10 W heat.) 1, 43 (1825))\n\n129\n\n\x0cOpinions o f the O ffice o f L egal C ounsel\n\nThe health care reform initiative is such a case. Simply put, the establishment\nof administrative bodies to implement the plan is entirely consistent with our con\xc2\xad\nstitutional tradition.\n\xe2\x80\xa2 Conclusion: The President\xe2\x80\x99s Health Care Reform Plan\nis Legislation Based on Well-Established Constitutional Principles.\nAs President Clinton has observed, finding a solution to the problems with our\nhealth care system will require a willingness to change, and his reform plan is a\ncomprehensive proposal for far-reaching change in both the public and the private\nsectors. It is possible that some confusion concerning the constitutional legitimacy\nof the Health Security Act will arise precisely because it is so comprehensive and\ndetailed, and thus necessarily will affect all the major components of our current\nhealth care delivery system. There may indeed be no historical analogue of a sin\xc2\xad\ngle bill that does so many things at once. Its comprehensiveness, however, should\nnot mask the fact that the basic means and mechanisms of the plan rest on longsettled principles of constitutional law, principles that seldom have been chal\xc2\xad\nlenged since the New Deal and that stem ultimately from the work of the Founders\nof the Republic. The President\xe2\x80\x99s plan, far from being constitutionally question\xc2\xad\nable, rests on what has rightly been called \xe2\x80\x9cthe first of the constitutional achieve\xc2\xad\nments of the American people . .. the formation of a national government that may\nlawfully deal with all national needs.\xe2\x80\x9d22\nThe Nation\xe2\x80\x99s debate over how best to deal with the great national need for\nhealth care reform should proceed untrammelled by worries over the national gov\xc2\xad\nernment\xe2\x80\x99s lawful powers that were laid to rest over half a century ago.\n\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\nH. JEFFERSON POWELL\nAttorney - Advisor\n\n22 C h arle s L B lack, Jr., The H um ane Im a g in a tio n 1 2 0 (1 9 8 6 )\n\n130\n\n\x0c'


b'Constitutionality of Citizenship Requirement for Participation\nin Small Business Administration\xe2\x80\x99s 8(a) Program\nThe Sm all Business A dm in istration\xe2\x80\x99s regulation im posing a citizenship requirem ent for participation\nin its 8(a) program fo r disadvantaged contractors is constitutional.\n\nMarch 4, 1996\nM e m o r a n d u m O p in io n\n\nfo r th e\n\nA s s o c ia t e G e n e r a l C o u n s e l\n\nU .S . S m a l l B u s in e s s A d m i n i s t r a t i o n\n\nYou have requested our opinion as to the constitutionality of a regulation of\nthe Small Business Administration (\xe2\x80\x9c SBA\xe2\x80\x9d ), 13 C.F.R. \xc2\xa7 124.103, that limits eli\xc2\xad\ngibility for the SBA\xe2\x80\x99s 8(a) program for disadvantaged contractors to businesses\nowned by U.S. citizens.1 The SBA has defended the validity of its 8(a) citizenship\nrequirement on the grounds that such a requirement is consistent with congres\xc2\xad\nsional intent. We agree with this conclusion, although we do so based upon a\ndifferent legal analysis than the one relied upon by the SBA.\nI.\n\nThrough the Small Business Act (the \xe2\x80\x9c Act\xe2\x80\x9d ), 15 U.S.C. \xc2\xa7\xc2\xa7631-656, Congress\nestablished the 8(a) program to \xe2\x80\x9c promote the business development of small busi\xc2\xad\nness concerns owned and controlled by socially and economically disadvantaged\nindividuals.\xe2\x80\x9d 15 U.S.C. \xc2\xa7 631 (f)(2). The Act defines a \xe2\x80\x9c small business concern\nowned and controlled by socially and economically disadvantaged individuals\xe2\x80\x9d\nas \xe2\x80\x9c a small business concern . . . (i) which is at least 51 per centum uncondition\xc2\xad\nally owned by \xe2\x80\x94 (I) one or more socially and economically disadvantaged individ\xc2\xad\nuals.\xe2\x80\x9d Id. \xc2\xa7 637(a)(4)(A). Included among the groups specifically identified as\n\xe2\x80\x9c socially disadvantaged\xe2\x80\x9d are \xe2\x80\x9c Black Americans, Hispanic Americans, Native\nAmericans, Indian tribes, Asian Pacific Americans, Native Hawaiian Organiza\xc2\xad\ntions, and other minorities.\xe2\x80\x9d Id. \xc2\xa7631(f)(1)(C).\nThe Act mandates the creation of the SBA \xe2\x80\x9c to carry out the policies of this\nchapter,\xe2\x80\x9d id. \xc2\xa7633(a), and it authorizes the Administrator of the SBA to \xe2\x80\x9c make\nsuch rules and regulations as he deems necessary to carry out the authority vested\nin him by or pursuant to this chapter.\xe2\x80\x9d Id. \xc2\xa7 634(b)(6). Pursuant to this authority,\nin 1979, the SBA promulgated regulations establishing ownership requirements\nfor 8(a) applicants:\n1Letter for Walter E. Dellinger, Assistant Attorney General, Office o f Legal Counsel, from Eric S. Benderson,\nAssociate General Counsel, U.S. Small Business Administration (July 19, 1995). It is our understanding that your\nrequest seeks advice with respect to a challenge to \xc2\xa7124.103 originally raised by Mr. Eugene Foley, whose cor\xc2\xad\nrespondence to the SBA is attached to your request. Because Mr. Foley appears to challenge the constitutionality\no f \xc2\xa7 124.103, our analysis is limited to the validity o f the regulation under the Constitution.\n\n85\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\n[I]n order to be eligible to participate in the 8(a) program, an appli\xc2\xad\ncant concern must be one which is at least 51 percent uncondition\xc2\xad\nally owned by an individual(s) who is a citizen of the United States\n(specifically excluding permanent resident alien(s)) and who is de\xc2\xad\ntermined by SBA to be socially and economically disadvantaged.\n13 C.F.R. \xc2\xa7124.103.\nIn its preamble to the interim rule, the SBA justified the citizenship requirement\nas follows:\n[T]he individual\xe2\x80\x99s social disadvantage must be rooted in treatment\nwhich he or she has experienced in American society. Each of the\nstatutorily designated groups has historically been abused in this\ncountry (e.g., the enslavement and subsequent disfranchisement of\nBlacks; the near-extermination of Native Americans). The 8(a) pro\xc2\xad\ngram is in large part designed to overcome the effects of such past\ninjustices. It is not designed to assist newcomers to America who\nhave been oppressed in foreign lands.\n45 Fed. Reg. 79,413, 79,414 (1980).\nII.\nThe Supreme Court has made clear that, while states are strictly limited by\nthe Equal Protection Clause of the Fourteenth Amendment in their ability to make\ndistinctions between citizens and aliens,2 the federal government enjoys far broad\xc2\xad\ner authority to classify on the basis of alienage. \xe2\x80\x9c For reasons long recognized\nas valid, the responsibility for regulating the relationship between the United States\nand our alien visitors has been committed to the political branches of the Federal\nGovernment.\xe2\x80\x9d M athews v. D iaz, 426 U.S. 67, 81 (1976). As an aspect of its ple\xc2\xad\nnary power over naturalization and immigration, Congress \xe2\x80\x9c enjoys rights to distin\xc2\xad\nguish among aliens that are not shared by the States.\xe2\x80\x9d Nyquist v. Mauclet, 432\nU.S. 1, 7 n.8 (1977).\nHowever, the federal power over aliens is not \xe2\x80\x9c so plenary that any agent of\nthe National Government may arbitrarily subject all resident aliens to different\nsubstantive rules from those applied to citizens.\xe2\x80\x9d Hampton v. M ow Sun Wong,\n426 U.S. 88, 101 (1976). While federal alienage classifications imposed by Con2 In Graham v. Richardson , 403 U.S. 365 (19 7 1), the Supreme Court held that Arizona and Pennsylvania statutes\nthat imposed durational residency requirements o n aliens seeking welfare benefits violated the Equal Protection Clause\no f the Fourteenth Am endm ent. State classifications based on alienage, the Court concluded, are \xe2\x80\x9c subject to close\njudicial scrutiny.\xe2\x80\x9d 403 U.S. at 372. In reaching this conclusion, the Court identified aliens as a \xe2\x80\x9c suspect class,\xe2\x80\x9d\na \xe2\x80\x9c prim e exam ple o f a \xe2\x80\x98discrete and insular\xe2\x80\x99 minority [citing United States v. Carotene Products, 304 U.S. 144,\n152-53 n.4 (1?38)] for whom such heightened judicial solicitude is appropriate.\xe2\x80\x9d Id.\n\n86\n\n\x0cConstitutionality o f Citizenship Requirement fo r Participation in Small Business Administration\xe2\x80\x99s 8(a)\nProgram\n\ngress or the President are subject to \xe2\x80\x9c relaxed scrutiny,\xe2\x80\x9d Nyquist, 432 U.S. at\n7 n.8, and violate the Fifth Amendment only if they are \xe2\x80\x9c wholly irrational,\xe2\x80\x9d M at\xc2\xad\nhews, 426 U.S. at 83, similar restrictions established by executive agencies without\nclear statutory or presidential authorization may be entitled to less deference. See\nHampton, 426 U.S. at 103.\nOur examination of the citizenship requirement of \xc2\xa7 124.103, whether evaluated\nunder Hampton v. M ow Sun Wong or more standard equal protection or due proc\xc2\xad\ness analyses, leads us to conclude that the regulation survives constitutional scru\xc2\xad\ntiny.\nA. H am pton v. M ow Sun W ong\nIn Hampton v. M ow Sun Wong, 426 U.S. 88 (1976), the Supreme Court ad\xc2\xad\ndressed the question whether discriminatory restrictions imposed by executive\nagencies should be subjected to more careful scrutiny than those imposed by Con\xc2\xad\ngress or the President. At issue in Hampton was a Civil Service Commission regu\xc2\xad\nlation that excluded aliens from the federal competitive civil service. Respondents\nchallenged the regulation under both the Equal Protection and Due Process compo\xc2\xad\nnents of the Fifth Amendment.\nThe Court framed the issue before it in both equal protection and due process\nterms:\nThe rule enforced by the Commission has its impact on an identifi\xc2\xad\nable class of persons who, entirely apart from the rule itself, are\nalready subject to disadvantages not shared by the remainder of\nthe community. . . . The added disadvantage resulting from en\xc2\xad\nforcement of the rule \xe2\x80\x94 ineligibility for employment in a major sec\xc2\xad\ntor of the economy \xe2\x80\x94 is of sufficient significance to be character\xc2\xad\nized as a deprivation of an interest in liberty.\nHampton, 426 U.S. at 102. Rather than relying upon a standard equal protection\n\nor due process analysis, however, the Court instead crafted an alternative analyt\xc2\xad\nical approach, based upon due process:3\n3 The Court specifically rejected respondents\' suggestion that it apply an equal protection analysis:\nRespondents argue that this scrutiny requires invalidation o f the Commission rule under traditional equal\nprotection analysis. It is true that our cases establish that the Due Process Clause o f the Fifth Amendment\nauthorizes that type o f analysis o f federal rules and therefore that the Clause has a substantive as well\nas a procedural aspect. However, it is not necessary to resolve respondents\' substantive claim, if a narrower\ninquiry discloses that essential procedures have not been followed.\n426 U.S. at 103. The dissent took issue with this \xe2\x80\x9c novel conception o f the procedural due process guaranteed by\nthe Fifth A m endm ent," 426 U.S. at 117 (Rehnquist, J., dissenting), chastising the majority for \xe2\x80\x9c inexplicably\nmeld[ing] together the concepts o f equal protection and procedural and substantive due process." Id. at 119.\n\n87\n\n\x0cOpinions of the O ffice o f L egal Counsel in Volume 20\n\n[W]e deal with a rule which deprives a discrete class of persons\nof an interest in liberty on a wholesale basis. By reason of the Fifth\nAmendment, such a deprivation must be accompanied by due proc\xc2\xad\ness. . . . When the Federal Government asserts an overriding na\xc2\xad\ntional interest as justification for a discriminatory rule which would\nviolate the Equal Protection Clause if adopted by a State, due proc\xc2\xad\ness requires that there be a legitimate basis for presuming that the\nrule was actually intended to serve that interest. If the agency which\npromulgates the rule has direct responsibility for fostering or pro\xc2\xad\ntecting that interest, it may reasonably be presumed that the asserted\ninterest was the actual predicate for the rule.\nId. at 102-03. Applying this analysis, the Court dismissed various justifications\n\nput forth by the Commission\xe2\x80\x94 those related to foreign affairs, treaty negotiations,\nand immigration and naturalization\xe2\x80\x94 as being outside the agency\xe2\x80\x99s legitimate area\nof responsibility. Id. at 115. The only proper concern of the agency \xe2\x80\x94 the pro\xc2\xad\nmotion of an efficient federal service \xe2\x80\x94 was, the Court concluded, not a legitimate\nbasis for such a broad exclusionary rule. Id.\nAs noted above, the test outlined in Hampton falls somewhere between a classic\nequal protection and due process analysis. Pursuant to the Hampton approach,\nwhere an agency adopts an alienage rule that has a serious impact on interests\nentitled to due process protection, and does so without clear statutory or presi\xc2\xad\ndential authorization, the agency must make some showing of statutory responsi\xc2\xad\nbility for the national interests it asserts as its goals. In our judgment, the SBA\nmeets this requirement: the rule it wishes to adopt is directly related to its statutory\ntask of administering the 8(a) program and is a reasonable means of doing so.\nB. E q u a l Protection\nThe SBA\xe2\x80\x99s regulation also passes muster under a more conventional equal pro\xc2\xad\ntection analysis. Notwithstanding the fact that \xe2\x80\x9c all persons, aliens and citizens\nalike,\xe2\x80\x9d are protected by the Equal Protection component of the Fifth Amendment,\nCongress may nevertheless enact rules for aliens \xe2\x80\x9c that would be unacceptable\nif applied to citizens.\xe2\x80\x9d Mathews, 426 U.S. at 80. Under Mathews, congressional\nstatutes that discriminate against aliens are subject only to minimal review, the\n\xe2\x80\x9c wholly irrational\xe2\x80\x9d standard noted above.\nRecently, the Supreme Court confirmed that this minimal standard applies also\nto equal protection challenges to restrictions imposed by executive agencies. In\nReno v. F lores, 507 U.S. 292 (1993), the Court reviewed an Immigration and\nNaturalization Service regulation requiring unaccompanied alien juveniles to be\nplaced in detention, pending deportation proceedings. Rejecting the alien juve\xc2\xad\nniles\xe2\x80\x99 equal protection claim that they were being treated differently from juvenile\n88\n\n\x0cC onstitutionality o f C itizenship R equirem ent fo r P articipation in Sm all B usiness A dm inistration\xe2\x80\x99s 8(a)\nP rogram\n\nU.S. citizens awaiting federal juvenile delinquency proceedings, the Court sum\xc2\xad\nmarily affirmed the rationality of the policy, stating simply: \xe2\x80\x9c [T]he difference\nbetween citizens and aliens is adequate to support the [disparate treatment].\xe2\x80\x9d 507\nU.S. at 306.\nFlores suggests that federal alienage classifications imposed by an executive\nagency are subject to the same minimal scrutiny under the Equal Protection com\xc2\xad\nponent of the Fifth Amendment as is applied to congressional statutes. The SBA\xe2\x80\x99s\nasserted interest in its citizenship requirement\xe2\x80\x94 to ensure that the 8(a) program\nbenefits members of groups that have historically been abused in the United States\nand not those who only have been oppressed in foreign lands\xe2\x80\x94 is sufficient to\nsatisfy this minimal standard.\n\nC. D ue Process\nFinally, we conclude that the regulation raises no issue under a standard proce\xc2\xad\ndural due process analysis because the Supreme Court\xe2\x80\x99s decisions establish that\nno constitutionally protected liberty or property interest is infringed by \xc2\xa7124.103.\nThe Supreme Court has interpreted the \xe2\x80\x9c liberty\xe2\x80\x9d protected by procedural due\nprocess to include \xe2\x80\x9c \xe2\x80\x98not merely freedom from bodily restraint but also the right\nof the individual to contract, to engage in any of the common occupations of\nlife,. . . and generally to enjoy those privileges long recognized . . . as essential\nto the orderly pursuit of happiness by free men.\xe2\x80\x99 \xe2\x80\x9d B oard o f Regents v. Roth,\n408 U.S. 564, 572 (1972) (quoting M eyer v. Nebraska, 262 U.S. 390, 399 (1923)).\nGenerally, liberty interests include those \xe2\x80\x9c human abilities that do not depend on\nthe government.\xe2\x80\x9d Scott v. Village o f Kewaskum, 786 F.2d 338, 340 (7th Cir.\n1986). The 8(a) program, however, is a creature of government: it upends the\nconcept of \xe2\x80\x9c liberty\xe2\x80\x9d to claim that there is a liberty interest in a statutory program\nconferring preferential treatment for government contracts. Cf. id. (\xe2\x80\x9c The due proc\xc2\xad\ness clauses are designed to establish regular procedures for governmental interven\xc2\xad\ntion in private affairs, and so the claim to process is at its strongest when a person\nsimply wishes to go about life\xe2\x80\x94 be it personal or economic life \xe2\x80\x94 without en\xc2\xad\ncountering the prohibition of the state.\xe2\x80\x9d ); LRL Properties v. Portage Metro Hous\xc2\xad\ning Auth., 55 F.3d 1097 (6th Cir. 1995) (holding that property owners have no\nliberty interest in continued participation in Section 8 housing rental assistance\nprogram).\nIn Hampton, the Supreme Court found that aliens\xe2\x80\x99 \xe2\x80\x9c ineligibility for employment\nin a major sector of the economy\xe2\x80\x9d \xe2\x80\x94 the federal government\xe2\x80\x94 was a disadvan\xc2\xad\ntage \xe2\x80\x9c of sufficient significance to be characterized as a deprivation of an interest\nin liberty.\xe2\x80\x9d 426 U.S. at 102. No comparably broad interest is implicated by an\napplicant\xe2\x80\x99s participation in the SBA\xe2\x80\x99s 8(a) program. By excluding aliens from\nthe 8(a) program, the SBA is not imposing on them \xe2\x80\x9c a stigma or other disability\xe2\x80\x9d\n89\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nthat forecloses their freedom to take advantage of other business opportunities.\nRoth, 408 U.S. at 573.\n\nNor does exclusion from the 8(a) program impair any property interests. To\nhold a property interest in a government benefit, an applicant must \xe2\x80\x9c have a legiti\xc2\xad\nmate claim of entitlement to it.\xe2\x80\x9d Roth, 408 U.S. at 577. The Supreme Court has\nnever held that an applicant for a government benefit has a constitutionally pro\xc2\xad\ntected property interest in receiving it. See, e.g., W alters v. N ational A ss\xe2\x80\x99n o f Radi\xc2\xad\nation Survivors, 473 U.S. 305, 320 n.8 (1985). Thus, to the extent that participa\xc2\xad\ntion in the 8(a) program can be considered a government \xe2\x80\x9c benefit,\xe2\x80\x9d applicants\nhave no property right to that benefit. See Software Systems Assocs., Inc. v. Saiki,\n1993 WL 294782 (D.D.C. 1993) (finding that an applicant has no property interest\nin participation in SBA 8(a) program); see also Blackburn v. City o f Marshall,\n42 F.3d 925, 941 (5th Cir. 1995) (\xe2\x80\x9c [T]he mere existence of a governmental pro\xc2\xad\ngram or authority empowered to grant a particular type of benefit to one such\nas the plaintiff does not give the plaintiff a property right, protected by the due\nprocess clause, to receive the benefit, absent some legitimate claim of entitle\xc2\xad\nm en t \xe2\x80\x94 arising from statute, regulation, contract, or the like \xe2\x80\x94 to the benefit.\xe2\x80\x9d ).\nIII.\nWe conclude that the citizenship requirement of 13 C.F.R. \xc2\xa7 124.103 is constitu\xc2\xad\ntional. The SBA\xe2\x80\x99s asserted interest in its citizenship requirement satisfies both\nthe criteria set forth in Hampton and the more conventional minimal rationality\nstandard under the Equal Protection guarantee of the Fifth Amendment. The regu\xc2\xad\nlation is equally valid under Supreme Court decisions interpreting the Due Process\nguarantee of the Fifth Amendment.\nWALTER DELLINGER\nA ssistant Attorney General\nOffice o f L egal Counsel\n\n90\n\n\x0c'


b'Impermissibility of Deputizing the House Sergeant at Arms as\na Special Deputy U.S. Marshal\nAppointment o f the House Sergeant at Arms as a Special Deputy U.S. Marshal would entail an overlap\xc2\xad\nping o f congressional and executive accountability that is incompatible with separation of powers\nrequirements, and it would impermissibly involve the institution of Congress in executive branch\nlaw enforcement.\n\nApril 10, 1995\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 t y A t t o r n e y G e n e r a l\n\nY o u have asked our opinion whether there is any constitutional impediment\nto the deputation of the Sergeant at Arms of the House of Representatives\n(\xe2\x80\x9c HSA\xe2\x80\x9d ) as a Special Deputy United States Marshal (\xe2\x80\x9c DUSM\xe2\x80\x9d ). Given the\nnature of the H SA \xe2\x80\x99s status and statutory duties as an Officer of the House \xe2\x80\x94\nwhich include maintaining order in the House under the direction o f the\nSpeaker\xe2\x80\x94 it would be virtually impossible to separate or segregate those duties\nfrom the law enforcement duties of a DUSM, giving rise to inherent conflicts\nin accountability between the two positions. Consequently, we conclude that the\nproposed arrangement would raise serious concerns under the constitutional sepa\xc2\xad\nration of powers.\n\nI. BACKGROUND\nOn May 25, 1994, this office issued an opinion advising that the appointment\nof a United States Senator as a DUSM would be inconsistent with separation\nof powers principles.1 We primarily based that conclusion upon \xe2\x80\x9c the principle\nrecognized in Bowsher v. Synar, 478 U.S. 714 (1986), that Congress may not\nexceed its constitutionally prescribed authority by playing a direct role in exe\xc2\xad\ncuting the laws.\xe2\x80\x9d 18 Op. O.L.C. at 125. Although such an appointment might\nraise additional problems under the Incompatability Clause of Article I, Section\n6, we did not reach that issue in the earlier opinion. See U.S. Const, art. I, \xc2\xa76,\ncl. 2.\nWe were subsequently asked whether the deputation of an employee on the\npersonal staff o f a U.S. Senator, for purposes o f providing protection and personal\nsecurity against threatened violence2, would be constitutionally permissible. We\nconcluded that it would. Our views on that issue were reflected in a Memorandum\nfrom the Director of the United States Marshals Service (\xe2\x80\x9c USM S\xe2\x80\x9d ) to you,\nreviewed and endorsed by this office, dated January 26, 1995. Memorandum for\n1Deputization o f Members o f Congress As Special Deputy U.S. Marshals, 18 Op. O.L.C. 125 (1994).\n2 The Senator in question was also President Pro Tempore o f the Senate and Chairman of the Armed Services\nCommittee.\n\n99\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nthe Deputy Attorney General, from Eduardo Gonzalez, Director, United States\nMarshal Service, Re: Continued D eputation (Jan. 26, 1995) (\xe2\x80\x9c Joint Memo\xc2\xad\nrandum \xe2\x80\x9d ). In concluding that deputation of the congressional staff member would\nnot violate the separation of powers, the Joint Memorandum stated:\nThe deputized staff person is not a Member of Congress and exer\xc2\xad\ncises no legislative power under Article I of the Constitution; nor\nwould Congress (or any member thereof) have the authority to grant\nor revoke his appointment as a special DUSM, or to control or\nsupervise his official duties as such.\n\nJoint M emorandum at 2 (emphasis added).\nBy letter dated February 27, 1995, to the USMS, the Sergeant at Arms of the\nHouse has requested special deputation as a DUSM. In justification of the\nrequested deputation, the letter states in pertinent part:\nThis letter would like to request special deputation to carry a\nweapon since I have been recently swom in as the Sergeant at Arms\nfor the United States House of Representatives (House). As the\nChief o f law enforcement, my duties involve the protection of\nHouse members, investigation of threats, enforcement of the com\xc2\xad\nmands o f the House, which includes the execution of arrest and\nsearch warrants, and the maintenance of order of the House, and\nother duties relating to the investigation and enforcement of the\nlaws relating to Members of Congress and the general public.\nBy memorandum to you dated March 31, 1995 (\xe2\x80\x9c USMS Memorandum\xe2\x80\x9d ), the\nDeputy Director o f the USMS has recommended against granting the requested\ndeputation. In so recommending, the USMS memorandum asserts that the deputa\xc2\xad\ntion in question would raise constitutional separation of powers issues, stating:\nIf he were deputized by the Marshals Service, he would use the\nadditional authority from that deputation in furtherance of his duties\nas the Sergeant at Arms of the House of Representatives. Thus,\nthe purpose o f his deputation would be concurrent with his duties\nas the House Sergeant at Arms. Since the House Sergeant at Arms\nremains in office subject to removal by the House of Representa\xc2\xad\ntives, 2 U.S.C. 83, the House, on its own initiative, could remove\nthe Sergeant at Arms from the position which is intertwined with\nhis deputation.\nUSMS Memorandum at 2.\n100\n\n\x0cImpermissibility o f Deputizing the House Sergeant at Arms as a Special Deputy U.S. Marshal\n\nIn light of our prior opinions in this area, you have now requested our analysis\nof whether the USMS is precluded on constitutional grounds from deputizing the\nHouse Sergeant at Arms.\n\nII. ANALYSIS\nThe House Sergeant at Arms is an Officer of the Congress. 2 U.S.C.\n\xc2\xa7 60\xe2\x80\x941(b)(1). As part of his duties he is required\nto attend the House during its sittings, to maintain order under the\ndirection of the Speaker, and, pending the election of a Speaker\nor Speaker pro tempore, under the direction of the Clerk, execute\nthe commands of the House and all processes issued by authority\nthereof, directed to him by the Speaker.\n2 U.S.C. \xc2\xa778.3 The HSA is subject to removal by the House of Representatives.\n2 U.S.C. \xc2\xa783.\nIt is evident that the HSA\xe2\x80\x99s appointment as a DUSM for the purposes outlined\nin his letter of request would entail unavoidable conflicts in accountability with\nhis duties and responsibilities as an Officer of the House. The letter makes it\nclear that the deputation is sought for the purpose of facilitating the H SA \xe2\x80\x99s duties\nto maintain order in the House and to enforce \xe2\x80\x9c the commands of the House.\xe2\x80\x9d\nIn performing his duty \xe2\x80\x9c to maintain order [in the House] under the direction\no f the Speaker,\xe2\x80\x9d 2 U.S.C. \xc2\xa778 (emphasis added), the HSA could not maintain\nthe accountability to the Director of the USMS, the Attorney General, and ulti\xc2\xad\nmately the President, that is required of a DUSM. Such overlapping of congres\xc2\xad\nsional and executive accountability is incompatible with separation of powers\nrequirements. See Bowsher, 478 U.S. at 726-32 (Comptroller General, who is \xe2\x80\x9c an\nofficer of the Legislative Branch\xe2\x80\x9d and \xe2\x80\x9c controlled by Congress,\xe2\x80\x9d cannot constitu\xc2\xad\ntionally be permitted to execute the laws).\nMoreover, we believe that the proposed deputation of the House Sergeant at\nArms, like the deputation of a Member of Congress, would impermissibly involve\nthe institution of Congress in executive branch law enforcement. See id. at 7 2 6 31. In this context, we do not think the activities of the House Sergeant at Arms\nfor which deputation is sought can be separated from the institution o f Congress\nfor separation of powers purposes.\nThe situation of the staff employee of a Senator whose re-deputation has been\nrecently approved by this office is distinguishable in several important respects.\nUnlike the HSA, that person\xe2\x80\x99s employment as a Senator\xe2\x80\x99s aide did not involve\ninstitutional duties to enforce order within the congressional sphere which could\n3 See also 2 U.S.C. \xc2\xa779, providing that, \xe2\x80\x9c [t]he symbol of his [i.e., the HSA] office shall be the mace, which\nshall be borne by him while enforcing order on the floor.\xe2\x80\x9d\n\n101\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\ncome into conflict with his accountability to the Attorney General as a DUSM.\nAs stated in the memorandum approving that deputation, neither Congress, the\nSenate, nor any member thereof would have legal authority to control or supervise\nhis limited protective duties as a DUSM. The limited protective function for which\nhe was deputized is not subject to congressional supervision, whereas the HSA\nseeks deputation in connection with the very activities as to which, by statute,\nhe is \xe2\x80\x9c under the direction of the Speaker\xe2\x80\x9d and subject to \xe2\x80\x9c the commands of\nthe House.\xe2\x80\x9d 2 U.S.C. \xc2\xa778.\nAdditionally, we do not think that a staff employee of a Senator or Representa\xc2\xad\ntive, who is not an Officer o f the Congress, see 2 U.S.C. \xc2\xa760-1 (b)(1), can be\nequated with the institution of Congress for purposes of assessing the issue pre\xc2\xad\nsented here. Unlike the HSA, his employment, duties, and removal are not con\xc2\xad\ntrolled by either House as an institution; rather, he is hired, supervised, and remov\xc2\xad\nable at the discretion of a single Member.\nRICHARD L. SHEFFRIN\nD eputy Assistant Attorney General\nOffice o f L egal Counsel\n\n102\n\n\x0c'


b'Continuing Effect of a Congressional Subpoena Following\nthe Adjournment of Congress\nA congressional subpoena lacks present force and effect after the adjournm ent sine die of a Congress,\nand it therefore im poses no continuing duty to com ply with its directives; similarly, it will not\nsupport the continued exercise by C ongress of the power to punish for contem pt.\nJudicial construction o f the procedure by which a congressional com m ittee\xe2\x80\x99s contem pt citation is\ncertified for prosecution under 2 U .S .C . \xc2\xa7 192 indicates that it would require action by the whole\nH ouse and not sim ply the Speaker if the contem pt occurs while Congress is in session. A ccording\xc2\xad\nly, if the contem pt in this case were not reported to th e House while it was still in session, o r if the\nH ouse failed to act on the resolution, the citation w ould die upon Congress\xe2\x80\x99 adjournm ent and be of\nno fu rth er force and effect\nIf a su ccesso r com m ittee in the subsequent Congress brought a civil action to enforce the prior\nco m m ittee\xe2\x80\x99s subpoena, its success m ight depend upon w hether the court viewed the prior\nsubpoena and refusal to comply as a historical fact w hose validity could not now be adjudicated.\nT h is rationale w ould support an action for declaratory relief, but not one for injunctive relief.\n\nDecember 14, 1982\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nYou have asked us to consider the question of the continuing effectiveness of a\ncongressional subpoena following the adjournment of a Congress. There are at\nleast four situations in which the issue might arise, including whether the\nsubpoena provides a basis for: (1) a continuing obligation to produce the re\xc2\xad\nquested documents; (2) congressional contempt proceedings within the inherent\npower of Congress; (3) criminal contempt prosecution under 2 U.S.C. \xc2\xa7 192\n(1976); and (4) civil enforcement in the district court.\nWe believe that the better view is that the subpoena is not effective as a\npredicate for the first three proceedings but that it might be for the last. For the\nfirst two, there could be no continuing assertion of congressional authority\nbecause the subpoena will have lost present force and effect. For the third,\njudicial interpretation of the process by which a committee\xe2\x80\x99s citation for con\xc2\xad\ntempt is certified under 2 U.S.C. \xc2\xa7 194 for prosecution under 2 U.S.C. \xc2\xa7 192,\ncoupled with appropriate separation of powers principles, should prevent further\ncongressional action after adjournment.1 For the last, the issue is whether the\n1 This memorandum does not address the separate issue whether 2 U.S.C. \xc2\xa7 192 and\xc2\xa7 194 can ever be applied to\nexecutive officials See Letter of June 18, 1956, from William P. Rogers, Deputy Attorney General, to Hon. John E.\nM oss, Chairm an, Government Information Subcommittee, Committee on Government Operations, reprinted in\nAvailability c f Information from Federal D epartments and Agencies Hearings Before a Subcomm c f the House\nComm, on Government Operations, 84th C ong , 2d Sess. 2891 (1956)\n\n744\n\n\x0chistorical fact of the viability of the subpoena and lack of compliance in the past is\na sufficient basis for further congressional action.\n\nI. Continuing Obligation to Produce Documents\nIt is clear that upon the adjournment sine die of a Congress, a House subpoena\nwould cease to have any current effectiveness as far as imposing a continuing\nobligation to produce documents. This lapse in effectiveness of the subpoena\nresults from the same factors that produce, at that same time, the death of all\npending legislation not enacted, see F. Riddick, The United States Congress 56\n(1949), and the termination of congressional authority to hold a contumacious\nwitness in custody. See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231 (1821);\nMarshall v. Gordon, 243 U.S. 521, 542 (1917). Because the subpoena would\nlack any present force or effect, it would impose no continuing duty to comply.\n\nII. Inherent Congressional Power to Punish for Contempt\nIt is similarly clear from Anderson and Marshall that any confinement for\ncontempt imposed by Congress in the exercise of its inherent constitutional\npowers must terminate upon adjournment sine die. See United States v. Fort, 443\nF.2d 670, 676 (D.C. Cir. 1970), cert, denied, 403 U.S. 932 (1971). The duration\nof confinement, in fact, is measured by the session, and not the term, of\nCongress. This shorter duration seems to indicate that the limitation is imposed\nnot merely out of a recognition that the subpoena lacks any present force or effect\nand will therefore not support the continued exercise of the power to impose a\npenalty for contempt. Whatever the alternative rationale which requires the more\nstrenuous limitation, the result is clear that the effect of adjournment is the end of\ncongressional power.\n\nIII. Criminal Prosecution Under 2 U.S.C. \xc2\xa7 194\nSection 194 of Title 2, United States Code, provides:\nWhenever a witness summoned as mentioned in section 192 of\nthis title fails to appear to testify or fails to produce any books,\npapers, records, or documents, as required, or whenever any\nwitness so summoned refuses to answer any question pertinent to\nthe subject under inquiry before either House, or any joint com\xc2\xad\nmittee established by a joint or concurrent resolution of the two\nHouses of Congress, or any committee or subcommittee of either\nHouse of Congress, and the fact of such failure or failures is\nreported to either House while Congress is in session, or when\nCongress is not in session, a statement of fact constituting such\nfailure is reported to and filed with the President of the Senate or\nthe Speaker of the House, it shall be the duty of the said President\nof the Senate or Speaker of the House, as the case may be, to\n745\n\n\x0ccertify, and he shall so certify, the statement of facts aforesaid\nunder the seal of the Senate or House, as the case may be, to the\nappropriate United States Attorney, whose duty it shall be to bring\nthe matter before the grand jury for its action.\nThe predicate offense under \xc2\xa7 192 of refusal to testify or produce papers is set out\nin the footnote.2\nSection 194 appears to require a vote by a committee of Congress to hold the\nwitness in contempt and a report by that committee of such fact to the House or\nthe Senate while Congress is in session or to the Speaker of the House or the\nPresident of the Senate when Congress is not in session. The Speaker or the\nPresident of the Senate shall then certify the facts to the United States Attorney\nfor prosecution. Judicial interpretation, however, has placed several important\nglosses on the statute.\nIn Wilson v. UnitedStates, 369 F.2d 198 (D.C. Cir. 1966), the court considered\nthe procedures for a contempt committed and reported while Congress was not in\nsession. The court held that the Speaker of the House did not have a mandatory\nduty to certify the statements to the United States Attorney; \xe2\x80\x9c his automatic\ncertification, under a disclaimer denying his jurisdiction to make any inquiry or\ntake any different course, was invalid.\xe2\x80\x9d Id. at 200.\nThe court reasoned that the apparently mandatory language of \xc2\xa7 194 regarding\ncertification was the same whether Congress was in session or not. Yet it had been\nthe practice of Congress since 1857 that the Speaker was not under a mandatory\nduty to certify the report of the committee when Congress was in session.\nInstead, a member of the committee would offer a resolution for the considera\xc2\xad\ntion of the House involved. The court stated:\nIt is clear that where the alleged contempts are committed while\nCongress was in session, the Speaker may not certify to the\nUnited States Attorney the statements of fact prepared by the\nCommittee until the report of alleged contempt has been acted\nupon by the House as a whole.\n369 F.2d 202. The court supported its conclusion by a brief discussion of prior\njudicial construction.3\nThe court also rejected the argument that even if House or Senate consideration\nwas necessary if Congress was in session, the statute contemplated automatic\n2\n\nEvery person who having been summoned as a witness by the authonty of either House of\nC ongress to give testimony or to produce papers upon any matter under inquiry before either House,\no r any jo in t committee established by a jo in t or concurrent resolution of the two Houses of Congress,\no r any committee of either House of Congress, willfully makes default, or who, having appeared,\nrefuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a\nmisdemeanor, punishable by a fine of not more than $ 1,000 nor less than $ 100 and imprisonment in a\ncom m on jail for not less than one m onth nor more than twelve months.\n2 U .S C \xc2\xa7 192.\n3 In re Chapman, 166 U .S. 661 (1897) (holding that the Speaker or the President of the Senate may not certify the\nfacts to the United States Attorney if a contempt resolution is defeated by the House whose action initiated the\ncontempt action); U nited States v. Costello, 198 F.2d 200, 204-05 (2d C ir), cert. denied. 344 U S. 874 (1952)\n(referring to resolution of the Senate citing defendant to contempt as \xe2\x80\x9c required by 2 U .S.C . \xc2\xa7 194\xe2\x80\x9d ).\n\n746\n\n\x0ccertification without further legislative consideration if Congress was not in\nsession. The court reasoned that the single statutory phrase could not have such\ntwo radically different readings. Moreover, by scheduling hearings when Con\xc2\xad\ngress was not in session or postponing reports until after adjournment, a commit\xc2\xad\ntee might be able to insulate its actions on contempt matters from consideration\nby the full House or Senate. The 1936 amendment to the statute, which added the\ncertification requirement, precluded an interpretation that would allow that\nresult.4 If certification were mandatory, there would be no such check on the\ncommittee.\nThe court then concluded that the established legislative practice required the\ninterpretation that 2 U.S.C. \xc2\xa7 194 \xe2\x80\x9c vests jurisdiction in the Speaker of the House\nand the President pro tempore of the Senate, when Congress is not in session, to\nprovide a substitute for the kind of consideration which would be provided by the\nhouse involved if it were still in session.\xe2\x80\x9d 369 F.2d 203-04.\nFrom the text of \xc2\xa7 194, as construed by Wilson, and certain well-established\nrules of legislative practice, the following principles seem clear. After the\ncommittee vote, a written report is required. If the report is prepared while\nCongress is in session, it must be submitted to the full House5 in the form of a\nresolution directing the Speaker to certify the facts to the United States Attorney.\nIf the House votes down the resolution, the committee citation is of no further\nforce or effect; adjournment of the Congress presents no novel issue in this\nsituation. Similarly, if the House fails to act on the resolution before adjourn\xc2\xad\nment, the resolution also dies; again, no novel issue is presented by the particular\nkind of resolution. If the House votes in favor of the resolution, it would be\ncertified to the United States Attorney.6\nIf the committee fails to report the fact of the contempt while Congress is in\nsession, Wilson, as well as general principles of separation of powers, can be read\nto preclude the committee from submitting the report to the Speaker for his\naction.7 The Wilson court stated that if the contempt occurred while Congress\nwas in session, the Speaker could not certify the statement of facts until the report\nwas acted upon by the House as a whole.8Given the clear preference of the courts\n4 Both committee reports on the 1936 amendment state that \xe2\x80\x9c the requirement that the statement of facts first be\nfiled with the President of the Senate or the Speaker of the House constitutes a check against hasty action on the part\nof a committee \xe2\x80\x9d H R Rep No 1667, 74th C ong., 1st Sess 2(1935), S Rep. No 2037, 74th Cong , 2d Sess. 2\n(1936)\n5 See also Kinoy v. District c f Columbia, 400 F 2d 761, 765 n 6 (D.C. C ir 1968)\nAppellant, however, forcefully argues that there are both substantive and procedural advantages lo\na contempt proceeding, the most important of which is that where Congress calls upon the courts lo\nprosecute a contempt charge under 2 U .S.C . \xc2\xa7 192 (1964), affirmative action by the subcommittee,\nthe full committee and finally by the House (if it is in session) is required. 2 U S.C. \xc2\xa7 194 ( 1964) See\nWilson v. United States, 125 U S. App D.C 153, 369, F 2d 198 (1966).\n6 Again, this procedure assumes that \xc2\xa7\xc2\xa7 192 and 194 would be applicable to an Executive Branch official. B ut see\nnote 1, supra\n7 This conclusion does not depend on whatever requirement might be imposed by internal committee or House\nrule lhat all action of the committee be reported to the House while Congress is in session; whether the committee\ncould meet dunng the adjournment to prepare the report; o r whether, even regardless of the general rules for\nreporting committee action, the report of a contempt would be treated differently, given that \xc2\xa7 194 at least on its face\nseems to reflect the possibility of action by the Speaker and not the full House\n8 It may be argued that this interpretation extends Wilson too far. The statement in Wilson, in context, appears to\nstand only for the point that certification by the Speaker is not mandatory because House action would be required if\nCongress were in session.\n\n747\n\n\x0cfor action by the full House before anyone is held to answer for an alleged\ncontem pt,9 Wilson could be read to require action by the House and not merely\nthe Speaker if the contempt occurs while Congress is in session.\nThese concerns are especially important in the context of a dispute between the\nExecutive and the Congress which arises because of a clash between the Ex\xc2\xad\necu tiv e\xe2\x80\x99s enforcem ent responsibilities and C ongress\xe2\x80\x99 investigative respon\xc2\xad\nsibilities. In that situation, there seems additional reason to believe that a court\nwould require the judgment of the full House that an Executive Branch official,\nacting directly pursuant to a direction from the President, should be held in\ncontempt of Congress.\nUnder this reading of \xc2\xa7 194, if the committee failed to report the contempt to\nthe House before the adjournment, or, as noted above, if the House failed to act\non the resolution, the citation would be of no further force and effect. It would die\nupon adjournment as does all uncompleted committee action.10\n\nIV. Civil Enforcement of the Subpoena\nWhether a civil action to enforce the subpoena could be brought following the\nadjournment might depend on whether a successor committee in the subsequent\nCongress again issued a subpoena for the documents and was again refused or\nwhether it merely tried to bring an action based on the subpoena issued and\nrefused in this Congress. The availability of relief might also depend on whether\nthe action were brought for declaratory or injunctive relief.\nA . Subpoena and Refusal in the New Congress\n\nIt seems clear that the successor committee in the new House could request the\nsame documents again and that, upon the Executive\xe2\x80\x99s refusal to produce, it could\nseek authority from the Congress, if it does not already exist, to bring a civil\naction to enforce the subpoena. Declaratory relief would be available; and if the\ncourt rejected the claim of executive privilege, it could order injunctive relief.\nSenate Select Comm ittee on Presidential Campaign Activities v. Nixon, 498 F.2d\n725 (D.C. Cir. 1974) ( en banc).\nB. Enforcement by the New Congress c f the Prior Subpoena\n\nAn argument can be made that the new House committee could not bring an\naction upon the prior subpoena because the House is not a continuing body. See\n9 As noted above, the Wilson court expressed its concern that a committee might insulate its actions by postponing\nreports until after adjournment Even though discretionary review by the Speaker when Congress was not in session,\nwhich the Wilson court required, would alleviate this concern to some extent, action by the Speaker alone still does\nnot provide the same statement of congressional intent as would action by the full House See also Kinoy v District\nc f Colum bia, supra, note 5.\n10 It may be, however, that if a court accepted the view that action by the Speaker alone was inconsistent with\nappropriate respect for the Executive, the court might allow the Speaker to refer the matter to the House in the next\nC ongress out of a similar respect for the Legislature.\n\n748\n\n\x0cGojack v. United States, 384 U.S. 702, 706-07 n.4 (1966)." It is possible,\n\nhowever, that the court might view the prior subpoena and refusal as a historical\nfact, the validity of which could be adjudicated notwithstanding the adjournment\nof Congress. Thus, if the civil action were authorized by existing law or specific\naction by the new Congress, the court might entertain it even without a repeated\nrequest for and refusal of the documents.\nThe limitation recognized in Gojack arose in the context of a criminal prosecu\xc2\xad\ntion in which current committee authority was a predicate for committee action\nand thus the contempt prosecution. A similar limitation might not be imposed if\nthe House were to seek instead civil adjudication based on the prior fact of the\nalleged contempt.12\nOther references to the termination of the legislative existence of the particular\nCongress are also inconclusive. These statements were made in the context of\nCongress\xe2\x80\x99 inherent power to punish contempt. In Anderson v. Dunn, supra, the\nCourt held that Congress had the inherent constitutional power to impose\nconfinement for contempt but limited the duration of confinement to the session\nof Congress:\n[B]y the nature of things, since the existence of the power that\nimprisons is indispensable to its continuance; and although the\nlegislative power continues perpetual, the legislative body ceases\nto exist on the moment of its adjournment or periodical dissolu\xc2\xad\ntion. It follows that im prisonment must terminate with that\nadjournment.\n19 U.S. at 231.\nThe limitation, however, seems not to reflect the absence of legislative exist\xc2\xad\nence and thus power in the traditional sense, which is measured not by a session\nof Congress but by a term. Thus, the limitation seems to have been imposed\nbecause the power was implied, and not express; the Court therefore held that the\nextent of the punishing power was limited to \xe2\x80\x9c the least possible power adequate\nto the end proposed.\xe2\x80\x9d I d . 13 Confinement imposed pursuant to a criminal con\xc2\xad\ntempt conviction, in fact, is not similarly limited to the term of Congress.\nMarshall v. Gordon, supra.\nTo these distinctions should be added two additional considerations. First, it is\npossible that a court might rely on traditional notions of mootness, which\npreserve for court review disputes which are capable of repetition yet evading\nreview. See, e.g.. Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 514\xe2\x80\x9416\n(1911). Second, the Supreme Court has recognized the desirability of adjudicat\xc2\xad\n11 This rule might be different for the Senate, which is a continuing body. See McGrain v Daugherty, 273 U.S\n135, 181 (1927)\n12 Even (he conclusion in McGrain. supra. note 11, that the Senate is a continuing body is not unambiguous\nbecause the Court went on to invoke traditional considerations of mootness, which would not have been necessary if\nthe Court were relying on some continuing authonty of the Senate denved from its status as a continuing body\n13 Other considerations of separation of powers and due process may also have been involved The Court might\nhave wanted to avoid having itself to decide what limitation on confinement should be imposed and yet have been\nunwilling to accept that there might be no limitation\n\n749\n\n\x0cing issues of executive privilege in a civil action and not a contempt proceeding.\nU nited States v. Nixon, 418 U .S. 683 (1974). One lower court has expressed a\nclear preference for determining constitutional privilege in a civil action and not a\ncriminal prosecution. Tobin v. U nited States, 306 F.2d 270,276 (D.C. Cir.), cert,\ndenied, 371 U.S. 902 (1962).14\nIt may be, therefore, that there is no absence of congressional power to proceed\nupon the prior fact of refusal to produce documents in response to a subpoena.\nUnder this view, a question would be raised about what kind of relief could be\nobtained in the civil action. The above rationale would support an action for\ndeclaratory relief based upon the historical facts. It might not support injunctive\nrelief if the court were to conclude that the successor committee was not an entity\nentitled to receive the documents requested by its predecessor. In that situation,\nhowever, the new committee could rely upon an adjudication that the prior refusal\nwas not supported by executive privilege, and could seek the documents by a new\nsubpoena.\nT h eo d o r e B . O lso n\n\nAssistant Attorney General\nOffice c f Legal Counsel\n\n14 W hether these considerations would be persuasive only if Congress did not seek criminal sanctions in addition\nto the civil action is not clear. It is possible that the court would find that Congress elected its remedy in the criminal\nprosecution and thus refuse it additional consideration in the context of a civil action\n\n750\n\n\x0c'


b'Post-Employment Restriction of 12 U.S.C. \xc2\xa7 1812(e)\nA Director of the Office of Thrift Supervision who resigns at the President\xe2\x80\x99s request is not subject to\nthe two-year restriction, under 12 U.S.C. \xc2\xa7 1812(e), against working for an insured depository\ninstitution or a depository institution holding company.\n\nSeptember 4, 2001\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF THE TREASURY\nAND\nTHE CHIEF COUNSEL\nOFFICE OF THRIFT SUPERVISION\n\nYou have asked for our opinion whether the Director of the Office of Thrift\nSupervision (\xe2\x80\x9cOTS\xe2\x80\x9d), Department of the Treasury, will be subject to a two-year\nrestriction against working for an insured depository institution or a depository\ninstitution holding company, when her resignation, which she offered at the\nPresident\xe2\x80\x99s request, takes effect. 12 U.S.C. \xc2\xa7 1812(e)(1)(A)(ii) (1994). See Letter\nfor Daniel Koffsky, Acting Assistant Attorney General, Office of Legal Counsel,\nDepartment of Justice, from Carolyn J. Buck, Chief Counsel, Office of Thrift\nSupervision (July 24, 2001) (\xe2\x80\x9cJuly 24, 2001 Letter\xe2\x80\x9d). We believe that the two-year\nrestriction would not apply.\nThe possible restriction arises from the OTS Director\xe2\x80\x99s position on the Board of\nDirectors of the Federal Deposit Insurance Corporation (\xe2\x80\x9cFDIC\xe2\x80\x9d). That Board\nconsists of three members appointed to the Board by the President, with the\nSenate\xe2\x80\x99s advice and consent; the Comptroller of the Currency; and the Director of\nOTS. 12 U.S.C. \xc2\xa7 1812(a)(1). For two years after leaving the Board, former\nmembers are barred from \xe2\x80\x9cany office, position, or employment in any insured\ndepository institution or any depository institution holding company\xe2\x80\x9d; but the bar\ndoes not apply \xe2\x80\x9cto any member who has ceased to serve on the Board . . . after\nserving the full term for which such member was appointed.\xe2\x80\x9d Id. \xc2\xa7 1812(e)(1)(A)(B).\nIn a letter to the President, the Director of OTS stated that the President had\nasked her to resign and that she therefore was tendering her resignation, effective\nupon the confirmation and appointment of a successor. Letter for the President,\nfrom the Director of the Office of Thrift Supervision at 1 (July 3, 2001) (\xe2\x80\x9cJuly 3,\n2001 Letter\xe2\x80\x9d). The issue here is whether, having resigned in these circumstances,\nthe Director of OTS has \xe2\x80\x9cserv[ed] the full term for which [she] was appointed.\xe2\x80\x9d 12\nU.S.C. \xc2\xa7 1812(e)(1)(B).\nA similar issue arose in 1961, when the Comptroller of the Currency resigned\nat the request of President Kennedy. At that time, the General Counsel of the\nTreasury concluded that \xe2\x80\x9cresignation at the request of the President is equivalent\n\n184\n\n227-329 VOL_25_PROOF.pdf 194\n\n10/22/12 11:10 AM\n\n\x0cPost-Employment Restriction of 12 U.S.C. \xc2\xa7 1812(e)\n\nto removal\xe2\x80\x9d and that \xe2\x80\x9cservice until removal by receipt of a requested resignation\nconstitutes service for a full term of office as Comptroller of the Currency.\xe2\x80\x9d Letter\nfor Erle Cocke, Sr., Chairman, FDIC, from Robert M. Knight, General Counsel,\nDepartment of the Treasury at 1 (Nov. 7, 1961). Relying on these judgments, the\nChairman of the FDIC, on the advice of his General Counsel, determined that the\ntwo-year post-employment restriction would not apply. See Letter for Robert M.\nKnight, General Counsel, Department of the Treasury, from Erle Cocke, Sr.,\nChairman, FDIC at 1 (Nov. 7, 1961).\nAccording to a memorandum in the files of the Treasury Department, that\nDepartment\xe2\x80\x99s General Counsel showed Assistant Attorney General Nicholas\nKatzenbach, then the head of our Office, the letter from the Treasury General\nCounsel and a draft of the reply later sent by the FDIC Chairman, and Mr.\nKatzenbach \xe2\x80\x9cexpressed his concurrence with the two letters.\xe2\x80\x9d Memorandum for\nthe Files, from Robert M. Knight, General Counsel, Department of the Treasury\n(Nov. 7, 1961). We have located no confirmation of this approval in our Office\xe2\x80\x99s\nfiles, but a letter sent to the Comptroller of the Currency in 1964 by Norbert\nSchlei, then the Assistant Attorney General for our Office, stated:\nI am aware of the case of your immediate predecessor in office, who\nresigned at the request of President Kennedy before completing the\nfive-year term authorized by section 325 of the Revised Statutes, as\namended (12 U.S.C. \xc2\xa7 2). I agree with the conclusion reached by the\nGeneral Counsel of the Treasury Department, and concurred in by\nthe Chairman of the [FDIC], that a resignation under those circumstances marked the end of a full term for the purposes of the exception to the employment restriction in 12 U.S.C. \xc2\xa7 1812 and left open\nto your predecessor the possibility of immediate employment with an\ninsured bank.\nLetter for the Comptroller of the Currency, from Norbert A. Schlei, Assistant\nAttorney General, Office of Legal Counsel at 1 (Sept. 2, 1964). Two years later,\nour Office reached the same conclusion again. Letter for Fred B. Smith, General\nCounsel, Department of the Treasury, from Frank Wozencraft, Assistant Attorney\nGeneral, Office of Legal Counsel (Nov. 10, 1966). An internal memorandum\nprepared a few weeks earlier laid the groundwork for the letter. Memorandum for\nthe Files, from Nathan Siegel, Office of Legal Counsel, Re: Eligibility of a\nComptroller of the Currency for Employment in an Insured Bank Under 12 U.S.C.\n\xc2\xa7 1812 (Sept. 21, 1966) (\xe2\x80\x9c1966 Memorandum\xe2\x80\x9d).\nThe rationale for this view of the statute, which is not an obvious interpretation\nof the language, was never explained at length, but it appears to have consisted of\na two-step argument. First, a Comptroller of the Currency removed by the\nPresident has served a full term. He has served as long as the law\xe2\x80\x94given the\n\n185\n\n227-329 VOL_25_PROOF.pdf 195\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nPresident\xe2\x80\x99s action\xe2\x80\x94would permit, see id. at 3-4; and application of the postemployment restriction, in those circumstances, would not serve the statute\xe2\x80\x99s\npurpose, which is to prevent an official from (intentionally) exploiting a short stay\nin office to make contacts that lead to private employment. Id. at 2. Second, \xe2\x80\x9cwhen\nthe holder of the office responds to the President\xe2\x80\x99s request to resign it is in\nsubstance a forced separation from office\xe2\x80\x9d and so equivalent to a removal. Id. at 3.\nThese prior opinions, without more, might seem to settle the issue whether the\nDirector of OTS, whose office (like that of the Comptroller of the Currency)\nentails service on the FDIC Board, will have served her full term when her\nresignation at the President\xe2\x80\x99s request becomes effective. In two respects, however,\nthe situation here might differ from the one we previously considered.\nFirst, under 12 U.S.C. \xc2\xa7 2 (1994), the Comptroller of the Currency \xe2\x80\x9cshall hold\nhis office for a term of five years unless sooner removed by the President, upon\nreasons to be communicated by him to the Senate.\xe2\x80\x9d This provision could be read\nas expressly defining a term that ends either in five years or upon removal of the\nPresident. By contrast, the Director of OTS \xe2\x80\x9cshall be appointed for a term of\n5 years.\xe2\x80\x9d Id. \xc2\xa7 1462a(c)(2). Because the language of this provision could not be\nsaid expressly to define a term that ends upon removal by the President, a Director\nof OTS who is removed or resigns at the President\xe2\x80\x99s request arguably would not\nhave served a full term.\nIt is far from evident that our earlier opinions rested in any way on an argument\nthat the statutory language defined the Comptroller of the Currency\xe2\x80\x99s term by\nreference to the President\xe2\x80\x99s power of removal. At any rate, drawing this distinction\nwould lead to a serious anomaly. Of the members of the Board, only the\nComptroller of the Currency serves under a statute that contains the \xe2\x80\x9cunless sooner\nremoved by the President\xe2\x80\x9d language. Thus, if a distinction were made on the basis\nof this language, the distinction would give a special benefit to the Comptroller of\nthe Currency that would be unavailable to the other members of the FDIC\xe2\x80\x99s Board:\nonly the Comptroller of the Currency would be relieved of the two-year bar when\nthe President removed him or he resigned at the President\xe2\x80\x99s request.\nWe would not infer that Congress intended such an anomaly. On the contrary,\nthe legislative history suggests that the Comptroller of the Currency and the other\nmembers of the Board were to be subject to the same post-employment\nrestrictions. Until 1950, when the Board consisted of the Comptroller of the\nCurrency and two appointed members, the two-year bar was absolute as to the\nComptroller of the Currency, and only the appointed members gained exemption\nfrom the bar by serving their full terms. See 12 U.S.C. \xc2\xa7 264(b) (1946). In 1950,\nCongress repealed the absolute bar that had applied to the Comptroller of the\nCurrency, \xe2\x80\x9cthereby placing him in the same position in that respect as the two\nappointive members of the Board.\xe2\x80\x9d H.R. Rep. No. 81-2564, at 5 (1950) (emphasis\nadded); see also 1966 Memorandum at 2-3 (citations omitted). But if the exception\nfor officials who have served a \xe2\x80\x9cfull term\xe2\x80\x9d is available to a Comptroller of the\n\n186\n\n227-329 VOL_25_PROOF.pdf 196\n\n10/22/12 11:10 AM\n\n\x0cPost-Employment Restriction of 12 U.S.C. \xc2\xa7 1812(e)\n\nCurrency removed from office only because his term is \xe2\x80\x9cfive years unless sooner\nremoved,\xe2\x80\x9d and if that exception is unavailable to the other members of the Board\nbecause the statutes applicable to them do not contain that language, the 1950\namendment, rather than placing the Comptroller of the Currency in the same\nposition as the appointed members, would have put him in an appreciably better\nposition.\nSecond, the Director of OTS\xe2\x80\x99s letter of resignation suggests, without actually\nasserting, that the Director of OTS might not serve at the pleasure of the President.\nSee July 3, 2001 Letter at 2. Such an assertion would be in tension with the view\nthat the President, by asking for the Director of OTS\xe2\x80\x99s resignation, had effectively\nremoved her from office and that she thus had served the full term allowed by the\nlaw under the circumstances.\nWe do not endorse the view that tenure protection for the Director should be\ninferred under the statute here. The statute gives no express protection. Furthermore, as the Director of OTS observes, see July 24, 2001 Letter at 1, OTS is\nwithin the Treasury Department, and the Secretary of the Treasury has \xe2\x80\x9cgeneral\noversight\xe2\x80\x9d power over the Director. 12 U.S.C. \xc2\xa7 1462a(b)(1). At any rate, it is\nsufficient for present purposes to note that the Director of OTS did not actually\nclaim that the President would have lacked authority to remove her. Therefore,\nunder the approach of our prior opinions and for purposes of the question here, her\nresignation \xe2\x80\x9cis in substance a forced separation from office.\xe2\x80\x9d See 1966 Memorandum at 3.\nWe therefore do not believe that the present case should be distinguished from\nour earlier opinions. Because the Director of OTS resigned at the President\xe2\x80\x99s\nrequest, she has served a \xe2\x80\x9cfull term\xe2\x80\x9d within the meaning of the statute as our\nOffice has interpreted it, and she may claim the benefit of the exception to the\ntwo-year post-employment bar.\nDANIEL L. KOFFSKY\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n187\n\n227-329 VOL_25_PROOF.pdf 197\n\n10/22/12 11:10 AM\n\n\x0c'