b'April 27, 1977\n\n78-78 MEMORANDUM OPINION FOR THE COUNSEL\nTO THE PRESIDENT\nThe White House\xe2\x80\x94The Vice President\xe2\x80\x94\nGifts (3 U.S.C. \xc2\xa7\xc2\xa7 110, 111; 16 U.S.C. \xc2\xa7 6a)\nYou have asked for our views regarding the acceptance of gifts to be used in\nthe White House, the official residence of the Vice President, or the offices of\nthe President and Vice President. We separately answer the questions raised by\nthe proposed gifts.\nI. Gifts of Art and Furnishings for the White House, the Vice\nPresident\xe2\x80\x99s Residence or the Offices of the President and Vice\nPresident\nThere is- express statutory authorization for the acceptance of such gifts.\nSection 6 of Pub. L. No. 93-346, 88 Stat. 340 (1974), as amended, 3 U.S.C.\n\xc2\xa7 111 note (1976), authorizes the acceptance of donations of art and furnishings\nfor the official residence of the Vice President:\nThe Secretary of the Navy is authorized and directed, with the\napproval of the Vice President, to accept donations of money or\nproperty for the furnishing of or making improvements in or about\nthe temporary official residence of the Vice President, all such\ndonations to become the property of the United States and to be\naccounted for as such.\nGifts for use in the White House are authorized by 3 U.S.C. \xc2\xa7 110 (1976),\nwhich provides in pertinent part:\nWith a view to conserving in the White House the best specimens\nof the early American furniture and furnishings, and for the purpose\nof maintaining the interior of the White House in keeping with its\noriginal design, the Director of the National Park Service is author\xc2\xad\nized and directed, with the approval of the President, to accept\ndonations of furniture and furnishings for use in the White House, all\nsuch articles thus donated to become the property of the United States\nand to be accounted for as such.\n349\n\n\x0cThis statute authorizes gifts of \xe2\x80\x9c furniture and furnishings\xe2\x80\x9d for the official\nresidence and the offices of the President and Vice President and other offices\nthat are located in the East or West Wing of the White House.1 We construe the\nterm \xe2\x80\x9c furnishings\xe2\x80\x9d to include gifts of art and other decorations that cannot be\nreadily characterized as \xe2\x80\x9c furniture.\xe2\x80\x9d It should be noted, however, that the\nstatute appears to contemplate the acceptance of early American items, and\nonly where this would be consistent with maintaining the interior of the White\nHouse in keeping with its original design.\nAside from this specific provision applicable to the White House, the\nSecretary of the Interior is authorized to accept, in the name of the United\nStates, \xe2\x80\x9c gifts or bequests of money for immediate disbursement or other\nproperty in the interest of the National Park Service, its activities, or its service,\nas heretofore authorized by law.\xe2\x80\x9d 16 U.S.C. \xc2\xa7 6a (1976). In our view, this\nstatute constitutes authority for the acceptance of gifts in connection with the\nDepartment of the Interior\xe2\x80\x99s general statutory responsibility under Pub. L. No.\n87-286 for maintenance of the White House and its grounds.2 This Office\nadvised the White House in 1974 that 16 U.S.C. \xc2\xa7 6a authorized the Secretary\nof the Interior to accept the donation of a swimming pool at the White House\nfor the President\xe2\x80\x99s use.\nThe mentioned statutes are silent on the question of the acceptance of\nconditional gifts. As a general rule, such gifts may not be accepted by the\nGovernment without the express approval of Congress. Story v. Snyder, 184 F.\n(2d) 454, 456 (D.C. Cir. 1950). The policy of the Curator of the White House\nhas been to refuse gifts offered on the condition that they be displayed in a\ncertain manner or location in the White House, on the ground that this would\ninterfere with the continuing responsibility of the Committee for the Preserva\xc2\xad\ntion of the White House to maintain the interior of the White House in the\nmanner deemed suitable at a particular time. Executive Order No. 11145, 3\nCFR 184 (1964-1965 compilation), reprinted in 3 U.S.C. \xc2\xa7 110 note (1976).\nThe type of condition that would be acceptable to the Curator would be, for\nexample, attaching a small plaque to the gift to identify the donor. The current\nWhite House policy appears to be consistent with the general rule on\nconditional gifts outlined above. We recommend that a similar policy on\nacceptance of conditional gifts be adopted for the Vice President\xe2\x80\x99s residence.\nIt is our understanding that, by arrangement with the National Park Service,\nmaintenance and furnishing of the East and West Wings of the White House are\nthe responsibility of the General Services Administration (GSA). According to\n\'Section 1 of Pub. L. No. 87-286, 75 Stat. 586 (1961), describes the \xe2\x80\x9c While H ouse" as \xe2\x80\x9c all of\nthat portion of reservation numbered 1 in the city of W ashington, District of Columbia, which is\nwithin the President\xe2\x80\x99s park enclosure, comprising eighteen and seven one-hundredths acres . . . \xe2\x80\x9d\n2The Department of the Interior\xe2\x80\x99s responsibility derives from the language in \xc2\xa7 I o f Pub. L. No.\n87-286 that the White House and its grounds \xe2\x80\x9c shall be administered pursuant to the Act of August\n25, 1916, 39 Stat. 535; 16 U.S.C. 1-3, and Acts supplementary thereto and amendatory thereof.\xe2\x80\x9d\nThe Act of August 25, 1916, established the National Park Service in the Department of the\nInterior.\n\n350\n\n\x0cthe Curator\xe2\x80\x99s Office, few of the furnishings donated to the White House are\nused in the East and West Wings; when they are, the items are apparently\nregarded as being on loan from the.collection intended for the residence. We\nsee no reason why gifts donated to the White House, especially those of an\nhistorical nature, cannot be used in the East and West Wings in this fashion.\nThe General Services Administration has jurisdiction over the Old Executive\nOffice Building and would therefore be the proper recipient of any gifts for use\nin that building. The Administrator of GSA is authorized to accept on behalf of\nthe United States \xe2\x80\x9c unconditional gifts of real, personal, or other property in aid\nof any project or function\xe2\x80\x9d within his jurisdiction. 40 U.S.C. \xc2\xa7 298a (1976).\nBecause GSA has assumed responsibility for maintenance and furnishing of the\nEast and West Wings, we believe it may accept gifts for use there as well. It\nshould be noted, however, that 40 U.S.C. \xc2\xa7 298a (1976) refers only to\nunconditional gifts.3\nII. Gifts of Services Attendant to the Loan of Art dr Furnish\xc2\xad\nings to the Residences or Offices, such as Collection, Crating,\nTransportation, and Insurance\nWhile there is no express statutory authority for the White House or the\nofficial residence of the Vice President to receive works of art or other objects\non loan, we see no reason to object to this practice.4 Nor do we see any basis for\nobjecting to the acceptance of services related to the loan, such as collection,\ncrating, transportation, and insurance.\nIn 1974 this Office advised the White House that a painting that had been\ngiven to the White House on the condition that it be exhibited to the public\ncould be viewed as a loan and be returned to the donor if it was no longer to be\ndisplayed. That earlier advice necessarily proceeded on the assumption that\nsuch a loan could be accepted.\nMoreover, the Comptroller General has ruled that agencies may accept a loan\nof equipment to be used in performing an agency function, although he noted\nthat this practice should not be encouraged because of the possibility of claims\nagainst the Government or the appearance of favoritism in later agency dealings\nwith the lender. 22 Comp. Gen. 153 (1942). In most cases there is little\nlikelihood of an appearance of favoritism toward one who lends items to the\nWhite House or the Vice President\xe2\x80\x99s residence. With respect to the possibility\nof claims against the Government, the Committee for the Preservation of the\n3This Office advised the White House in 1964 that 40 U.S.C. \xc2\xa7 298a (1976) permitted GSA to\naccept a donation of television lights to be installed in one of the Wings by several networks. It was\nemphasized that the fixtures, once installed, were to be regarded as property of the United States for\nall purposes.\n4See Secretary of the Navy Instruction 4001.2E (Oct. 18, 1978) governing acceptance of gifts for\nthe Vice President\'s residence under Pub. L. No. 93-346, supra. Paragraph 3.e. defines the term\n"gift\xe2\x80\x9d to include loans, except loans of money. See H 4.b. Arguably. 3 U.S.C. \xc2\xa7 110 (1976) and 16\nU.S.C. \xc2\xa7 6a (1976) could also be construed to permit acceptance of loans, which are in a sense only\ntemporary gifts.\n\n351\n\n\x0cWhite House has in the past purchased an insurance policy covering all items\non loan to the White House.\nIf, as it appears, loans of furnishings may be accepted for use in the White\nHouse or Vice President\xe2\x80\x99s residence, we see no reason why the lender may not\npay the costs incident to the loan. We do not mean to suggest, however, that\nfunds appropriated for the Executive Residence or the Official Residence of the\nVice President under the Executive Office Appropriations Act of 1977, Pub. L.\nNo. 94-363, 90 Stat. 966 (1976), may not be used to pay these costs. The\nappropriations are available for the \xe2\x80\x9c refurnishing\xe2\x80\x9d and \xe2\x80\x9c furnishing\xe2\x80\x9d of the\ntwo residences, respectively. Presumably they may be spent for the outright\nacquisition of suitable art and furnishings. Obtaining such items on loan is\nmerely another form of acquisition, albeit of a temporary nature, and we see no\nreason why appropriated funds cannot be expended to meet the costs of their\nuse by the Government. Cf. 22 Comp. Gen. 153, 154 (1942). In this\nconnection, the Curator\xe2\x80\x99s Office informed us that it has in the past spent\nappropriated funds to pay the costs incidental to loans of art and furnishings to\nthe White House.\nOne final point with respect to loans may be of interest. The Committee for\nthe Preservation of the White House has apparently required lenders of property\nto state in writing that they will not sell the property in question for a certain\nperiod of time after it has been returned by the White House and to promise that\nthe fact that the property was once displayed in the White House will not be\nmentioned in advertising in connection with its later sale. This obviously is\nintended to prevent trading on the White House name. It may be appropriate to\nadopt a similar policy for the Vice President\xe2\x80\x99s residence.\nIII. Gifts for the Purpose of Acquiring Art, Furnishings, or\nAttendant Services\nThe special statute authorizing the acceptance of furniture and furnishings for\nthe White House does not appear to permit acceptance of cash donations. 3\nU.S.C. \xc2\xa7 110 (1976). However, the general statutory authority of the Secretary\nof the Interior to accept gifts in connection with National Park Service activities\nspecifically mentions money, 16 U.S.C. \xc2\xa7 6a (1976), as does the special statute\napplicable to the Vice President\xe2\x80\x99s residence, Pub. L. No. 93-346, supra. The\nstatute applicable to GSA does not expressly mention gifts of money, but such\ngifts would appear to be.included in the general phrase in 40 U.S.C. \xc2\xa7 298a\n(1976), \xe2\x80\x9c gifts of real, personal, or other property.\xe2\x80\x9d\nIV. The Proper Recipient of Gifts\nUnder paragraph 12 of Secretary of the Navy Instruction (SECNAV)\n4001,2E, the Chief of Naval Operations is designated as the \xe2\x80\x9c cognizant official\xe2\x80\x9d\nresponsible for processing gifts to the Vice President\xe2\x80\x99s residence; but it is the\nSecretary of the Navy who ultimately accepts such gifts.5\n5If any questions arise regarding the acceptance of gifts for the Vice President\xe2\x80\x99s residence, the\nAdministrative Law Section of the Navy\xe2\x80\x99s Office of the Judge Advocate General is familiar with\n(Continued)\n\n\x0cBy tradition, the Committee for the Preservation of the White House,\nestablished by Executive Order No. 11145, has been designated as the recipient\nof gifts made to the White House, although it, of course, accepts such gifts on\nbehalf of the United States. As we understand it, donations of funds to be used\nfor furnishing the White House are accepted by the Committee and deposited in\na special account maintained by the National Park Service for use by the\nCommittee. All gifts are acknowledged by a certificate issued by the Commit\xc2\xad\ntee.6 The Curator\xe2\x80\x99s Office assists the Committee in these matters.\nFinally, the regional office of the General Services Administration should be\nconsulted regarding donations of art or furnishings to be used in the Old\nExecutive Office Building or gifts of furniture of no particular historical\nsignificance to be used in the East or West Wings of the White House.\nV. Solicitation of Gifts\nWe are not aware of any statute that either authorizes or prohibits members\nof the President\xe2\x80\x99s or Vice President\xe2\x80\x99s staff from soliciting gifts of art,\nfurnishings, and attendant services.7 To the degree that the President and Vice\nPresident become involved in the gift process, we see no reason why their staffs\nmay not assist them. However, the applicable statutes appear to assign primary\nresponsibility for the White House and Vice President\xe2\x80\x99s residence to other\nentities, subject to the general supervision of the President and Vice President.\nAs mentioned above, the Committee for the Preservation of the White House\nhas traditionally assumed responsibility for acceptance of gifts to the White\nHouse.\nIn addition, the restrictions contained in Executive Order No. 11222, 3 CFR\n306 (1964-1965 compilation), reprinted in 18 U.S.C. \xc2\xa7 201, note (1976), and\nthe implementing regulations for the Executive Office of the President should\nbe considered.8 Section 201(a) of the Executive order prohibits any employee\ncovered by the order from soliciting any gift, loan, or other thing of monetary\nvalue from any person, organization, or group that:\n(1) has, or is seeking to obtain, contractual or other\nbusiness or financial relationships with his agency;\n(Continued)\ninternal procedures for gifts to the Navy in general, including those to the Vice President\xe2\x80\x99s\nresidence.\n6We are not aware that a comparable committee has been established for the Vice President\xe2\x80\x99s\nresidence, but one could presumably be created by the Secretary of the Navy, with the Vice\nPresident\xe2\x80\x99s approval. Such a committee could relieve the Vice President\xe2\x80\x99s staff and family of any\nadministrative burden in accepting gifts and dispel any potential awkwardness in having them\ndirectly involved in the process.\n740 U.S.C. \xc2\xa7 193p. (1976) makes it unlawful for "anyone other than an authorized employee or\nconcessionaire . . . to solicit alms, subscriptions, or contributions\xe2\x80\x9d (emphasis added) within the\nbuildings or grounds of the Institution. Although this statute is obviously inapplicable to the\npresent situation, it is the only statute pertaining to solicitation of gifts by Federal employees.\n\xe2\x80\x9cThe Office of the Vice President is not included among the agencies to which the Executive\nOffice\xe2\x80\x99s Standards of Conduct apply. See 3 CFR IOO,735-2(a) (1977). However, we understand\nthat Vice President Rockefeller issued Standards of Conduct regulations for the Vice President\xe2\x80\x99s\nstaff which are still in effect and are sim ilar\xe2\x80\x98in most respects to those of the Executive Office.\n\n353\n\n\x0c(2) conducts operations or activities which are regulated\nby his agency; or\n(3) has interests which may be substantially affected by\nthe performance or nonperformance of his official duty.\nSee also 3 CFR 100.735-14(a) (1977). This section was directed primarily at\nthe solicitation of gifts for the employee\xe2\x80\x99s personal benefits. Nevertheless, as a\nmatter of policy, solicitations should be avoided where the persons or\norganizations involved have a significant interest in matters that are likely to be\nreviewed in the White House or the Vice President\xe2\x80\x99s Office. See also Executive\nOrder No. 11222, \xc2\xa7\xc2\xa7 201(c)(2), (4), and (6); 3 CFR 100.735-4(c)(2), (4) and\n(6) (1977).\nEven where the potential donor has no particular interest in matters pending\nbefore the President or Vice President, we believe it would be advisable for\nmembers of the President\xe2\x80\x99s and Vice President\xe2\x80\x99s regular staffs to avoid\nextensive involvement in the solicitation of gifts or loans. Time spent by these\nindividuals on solicitation of gifts would of necessity be diverted from their\nordinary governmental duties, thereby, perhaps, giving the appearance of\n\xe2\x80\x9c [i]mpeding Government efficiency and economy.\xe2\x80\x9d Executive Order No.\n11222, \xc2\xa7 201(c)(3); 3 CFR 100.735-4(c)(3) (1977).\nFinally, although loans of art and furnishings to the White House and the\nVice President\xe2\x80\x99s residence are official in nature, they result in at least some\npersonal benefit in terms of use and enjoyment by the President and Vice\nPresident, their families, and staff members. To this extent, excessive\ninvolvement of staff members in solicitation might create an appearance of\n\xe2\x80\x9d [u]sing public office for private gain,\xe2\x80\x9d which is prohibited by section\n201(c)(1) of Executive Order No. 11222 and 3 CFR 100.735-4(c)(l) (1977).\nVI. Forms of Agreement\nThe Office of the Curator has stated that most donors do not use any\nparticular form or deed for gifts to the White House. The usual procedure is for\nthe donor to address a letter to the Committee for the Preservation of the White\nHouse stating that an unconditional gift is being made to the Committee on\nbehalf of the United States.9 The Curator\xe2\x80\x99s Office also informed us that this\narrangement has proved to be satisfactory in the past and that no problems have\narisen. We see no reason why the same procedure cannot be used for gifts to the\nVice President\xe2\x80\x99s residence, especially if a policy is adopted of not accepting\nconditional gifts.\nVice President Rockefeller executed a deed of gift for certain property he\ndonated to the Vice President\xe2\x80\x99s residence, but a copy of this deed was not\n\n\xe2\x80\x99The Curator\xe2\x80\x99s Office also stated that it makes clear that it is the donor\xe2\x80\x99s responsibility to have\nthe properly assessed for tax purposes.\n\n354\n\n\x0cretained in the files o f the Office of the N avy\xe2\x80\x99s Judge Advocate General\nbecause it was an unrestricted gift. Generally, deeds should be filed with the\nSecretary of the Navy through the Chief of Naval Operations, the cognizant\nofficial for gifts to the Vice President\xe2\x80\x99s residence, as a permanent record of the\ngift. A letter o f acknowledgement from the Secretary of the Navy to the donor\nwould be adequate evidence o f acceptance.\nJo h n M . H\n\narmon\n\nA cting A ssistant A ttorney G eneral\nOffice o f L egal Counsel\n\n355\n\n\x0c'


b'Recess Appointments During an Intrasession Recess\nT he President may make interim recess appointments during an intrasession recess o f eighteen days.\n\nJanuary 14, 1992\nM e m o r a n d u m O p i n io n f o r t h e D e p u t y C o u n s e l t o t h e P r e s id e n t\n\nThis memorandum responds to your request that this Office determine\nwhether the President may make appointments under the Recess Appoint\xc2\xad\nments Clause to the Federal Housing Finance Board (\xe2\x80\x9cFHFB\xe2\x80\x9d), the Legal\nServices Corporation (\xe2\x80\x9cLSC\xe2\x80\x9d), and the office of the Chief Executive Officer\no f the Resolution Trust Corporation (\xe2\x80\x9cRTC\xe2\x80\x9d) during the current recess of the\nSenate, which began on January 3, 1992 and will end on January 21, 1992.\nWe conclude that he may.\nCommon to all of these appointments is the issue whether the President\nmay make recess appointments during an intrasession recess of eighteen\ndays.1 Article II, Section 2, Clause 3 of the Constitution provides: \xe2\x80\x9cThe\nPresident shall have Power to fill up all Vacancies that may happen during\nthe Recess of the Senate, by granting Commissions which shall expire at the\nEnd o f their next Session.\xe2\x80\x9d The longstanding view of the Attorneys General\nhas been that the term \xe2\x80\x9crecess\xe2\x80\x9d includes intrasession recesses if they are of\nsubstantial length. Attorney General Daugherty held in 1921 that the Presi\xc2\xad\ndent had the power to make a recess appointment during a twenty-eight day\nintrasession recess. He explained that recess appointments could be made\nduring any recess of such duration that the Senate could \xe2\x80\x9cnot receive com \xc2\xad\nmunications from the President or participate as a body in making appointments.\xe2\x80\x9d\n33 Op. Att\xe2\x80\x99y Gen. 20, 24 (1921) (quoting S. Rep. No. 4389, 58th Cong., 3d Sess.\n1905; 39 Cong. Rec. 3823). According to Attorney General Daugherty, while\n\xe2\x80\x9cthe line of demarcation cannot be accurately drawn,\xe2\x80\x9d id. at 25,\n\' For practical purposes with respect to nominations, this recess closely resembles one of substantially\ngreater length. House Concurrent Resolution 260, enacted on November 27, 1991, provides that the\nfirst session of the 102nd Congress stood adjourned until 11:55 a.m. on January 3, 1992, or until M em \xc2\xad\nbers were otherwise notified to reassemble. H. Con. Res. 260, I02d Cong., 1st Sess. (1991). It also\nprovides that "when the Congress convenes on January 3, 1992 . . . , the Senate shall not conduct any\norganizational or legislative business and when it recesses or adjourns on that day, it stand in recess or\nadjournm ent until 11:30 a.m. on Tuesday, January 21,1992 [or until otherwise notified to reassem ble].\xe2\x80\x9d\nId. Except for its brief formal session on January 3, then, the Senate will have been absent from\nN ovem ber 27, 1991 until January 21, 1992, a period of fifty-four days.\n\n15\n\n\x0cthe President is necessarily vested with a large, although not\nunlimited, discretion to determine when there is a real and\ngenuine recess making it impossible for him to receive the\nadvice and consent of the Senate. Every presumption is to be\nindulged in favor of the validity of whatever action he may take.\nAttorney General Daugherty\xe2\x80\x99s opinion has been cited with approval in\nsubsequent opinions of the Attorneys General, and has been relied on by the\nCom ptroller General as well. See e.g., 41 Op. Att\xe2\x80\x99y Gen. 463, 468 (1960);\n28 Comp. Gen. 30, 34-36 (1948).\nPast practice is consistent with exercise o f the recess appointment power\nduring an intrasession recess of eighteen days. President Coolidge made a\nrecess appointment during a fifteen day recess. Memorandum for the Coun\xc2\xad\nsel to the President, from Leon Ulman, Deputy Assistant Attorney General,\nOffice of Legal Counsel at 3 (Dec. 3, 1971). In 1985 President Reagan\nmade recess appointments during an eighteen day intrasession recess. Memo\xc2\xad\nrandum to Files, from Herman Marcuse, Office of Legal Counsel (Jan. 28,\n1985). Accordingly, we believe that the President may constitutionally make\nrecess appointments during the current intrasession recess.2\nWe next address the specific offices you have identified. All of the mem\xc2\xad\nbers o f the Boards of Directors of the LSC and the FHFB had been serving\npursuant to recess appointments that expired when the First Session of the\n102nd Congress ended on January 3, 1992. Those offices are thus now\nvacant and the President may make recess appointments to them during the\ncurrent recess. See Permissibility o f Recess Appointments o f Directors o f the\nFederal Housing Finance Board, 15 Op. O.L.C. 91 (1991); Memorandum for\nJohn P. Schmitz, Deputy Counsel to the President, from Timothy E. Flanigan,\nSpecial Assistant, Office of Legal Counsel (Oct. 17, 1990).\nFinally, we believe that the President may recess appoint the Chief Ex\xc2\xad\necutive Officer of the RTC. That office was created by section 201 of the\nResolution Trust Corporation Refinancing, Restructuring, and Improvement\nAct of 1991, Pub. L. No. 102-233, 105 Stat. 1761 (\xe2\x80\x9cAct\xe2\x80\x9d), which the Presi\xc2\xad\ndent signed on December 12, 1991. Although certain of the substantive\nprovisions of the Act do not take effect until February 1, 1992, see title III\nof the Act, the provision creating the position of Chief Executive Officer is\nnot subject to any special effective date provision, and hence went into\neffect upon enactment. The Attorneys General have long believed that the\nPresident has the power to make an original recess appointment to a newly\ncreated position. See 12 Op. A tt\xe2\x80\x99y Gen. 455 (1868); 14 Op. Att\xe2\x80\x99y Gen. 562\n(1875); 18 Op. A tt\xe2\x80\x99y Gen. 28 (1880), a position upheld in United States v.\nA llocco, 305 F.2d 704, 713-14 (2d Cir. 1962), cert, denied, 371 U.S. 964\nId.\n\n2 Attorney General Daugherty, however, suggested in 1921 that \xe2\x80\x9can adjournment for 5 or even 10 days\xe2\x80\x9d\nwould not be sufficient \xe2\x80\x9cto constitute the recess intended by the Constitution.\xe2\x80\x9d 33 Op. Att\xe2\x80\x99y Gen. at 25.\n\n16\n\n\x0c(1963). The Office therefore now exists and is vacant for purposes o f the\nRecess Appointments Clause.\nIn conclusion, we believe that the current recess constitutes a sufficient\nperiod for the President to make the aforementioned recess appointments as\na matter of law. As a matter of policy, we suggest that the President make\nthe appointments as soon in the recess as possible.\nTIMOTHY E. FLANIGAN\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n17\n\n\x0c'


b'Proposed Legislation to Restrict the Sales of\nAlcoholic Beverages in Interstate Commerce\nProposed legislation to prohibit the sale in interstate commerce of alcohol to persons under the\nage o f 21 is a valid exercise o f Congress\xe2\x80\x99 power under the Commerce Clause and consistent\nwith the Twenty-First Amendment. The Twenty-First Amendment permits states to enact\nlegislation more restrictive than would otherw ise be permissible under the Com merce Clause;\nhowever, it does not deprive the federal government o f any authority over alcohol under the\nCommerce Clause.\nThe proposed legislation would not be \xe2\x80\x9cin violation\xe2\x80\x9d of more permissive state law s. Even if it\nwere read to be \xe2\x80\x9cin violation\xe2\x80\x9d o f such law s, a court would likely find that the federal interest\nin preventing damage to national commerce outweighed any particular state\xe2\x80\x99s interest in\npermitting access to liquor for persons under age 21.\n\nApril 16, 1984\nM\n\nem orandum\n\nO p in io n\nO f f ic e\n\nfor th e\nof\n\nA s s is t a n t A t t o r n e y G e n e r a l ,\n\nL e g is l a t iv e A f f a ir s\n\nThis responds to your request of January 20, 1984 for our views on H.R.\n3870, a bill to restrict the sales of alcoholic beverages in interstate commerce.\nAlthough Congress has not yet asked for the Department\xe2\x80\x99s views on this bill,\nyou have requested our opinion in view of the questions raised by opponents of\nthe bill and the public debate over it.1We have reviewed H.R. 3870 and believe\nthat it is constitutional.\nSection 1 of the bill contains congressional findings on the economic dam\xc2\xad\nage done by drunk drivers, the disproportionate number of accidents caused by\ndrunk drivers who are under the age of 21, and the benefits to the public welfare\nthat will result from restricting sales of alcohol to those over 21. Section 2\nprohibits the sale in interstate commerce of alcohol to those under 21:\nNo person may sell or offer to sell any alcoholic beverage to any\nindividual who is under the age of twenty-one if the beverage is\nor has traveled in interstate commerce or if the sale or offer to\nsell is made in an establishment which is in or affects interstate\ncommerce.\n1 See W ash. Post, Feb. 9, 1984, at A 12, col. 6; 70 A.B.A. J.18 (Apr. 1984). The O ffice of M anagem ent and\nBudget has recently asked for our view s on this bill.\n\n53\n\n\x0cSection 3 provides definitions; \xc2\xa7 4, penalties; and \xc2\xa7 5 authorizes civil actions\nby citizens against those who violate \xc2\xa7 2 ? Section 6 permits the Secretary of\nCommerce to waive the application of \xc2\xa7 2 in any state that has a law \xe2\x80\x9ceffective\nin prohibiting the sale of liquor\xe2\x80\x9d to those under 21, and to cancel the waiver if\nthe law is ineffective. Section 7 makes \xc2\xa7 2 effective two years after passage of\nH .R .3870.\nThe constitutional question raised by H.R. 3870 is whether \xc2\xa7 2 of the\nTwenty-First Amendment to the Constitution prohibits the federal government\nfrom exercising authority under the Commerce Clause, U.S. Const, art. I, \xc2\xa7 8,\ncl. 3, that would otherwise clearly furnish a constitutional basis for enacting\nthis legislation.3 Although the issue is not, because of its novelty, entirely free\nfrom doubt, we believe that the proposed legislation is constitutionally permissible.\n\nThe Twenty-First Amendment to the Constitution repealed the Eighteenth\nAmendment and the imposition of nationwide prohibition. U.S. Const, amend.\nXXI. Section 2 of the Amendment provides: \xe2\x80\x9cThe transportation or importation\ninto any State, Territory, or possession of the United States for delivery or use\ntherein of intoxicating liquors, in violation of the laws thereof, is hereby\nprohibited.\xe2\x80\x9d The effect of \xc2\xa7 2 is to permit states to enact legislation more\nrestrictive than would otherwise be permissible under the Commerce Clause.\nSee U nited States v. Frankfort D istilleries, Inc., 324 U.S. 293, 300 (1945)\n(Frankfurter, J., concurring); 76 Cong. Rec. 4141, 4143 (1933) (statement of\nSen. Blaine). That is to say, the Twenty-First Amendment permits states to go\nbeyond non-discriminatory regulation based on their police powers4 and enact\ndiscriminatory regulation.5 However, early arguments that \xc2\xa7 2 entirely de\xc2\xad\n2 A s reported o u t by the Committee on Energy and C om m erce o f the H ouse o f R epresentatives, \xc2\xa7 5 o f H.R.\n3870 w ould perm it any one to file civil su its to enjoin violations of \xc2\xa7 2. The suits could be brought only in\nstate court.\n3 G iven the phraseology o f \xc2\xa7 2 of H.R. 3870, w e have analyzed this b ill under the Com m erce Clause. We do\nnot ad d ress th e federal governm ent\xe2\x80\x99s p o w e r over alcohol arising under other portions of the C onstitution,\nsuch as the Export-Im port Clause, see Department o f Revenue v. James Beam Corp., 377 U.S. 341 (1964), or\nthe Fourteenth A m en d m en t\'s requirem ent o f equal protection, see Craig v. Boren, 429 U S. 190 (1976).\n4 F o r exam ple, p rio r to passage o f th e Eighteenth A m endm ent, the Suprem e C ourt rebuffed Commerce\nC lause challenges to several state statutes prohibiting en tirely the sale o r manufacture o f alcohol. The Court\nheld th at the law s w ere valid exercises o f the states\xe2\x80\x99 p olice power o v e r local com m erce even though their\neffects \xe2\x80\x9cmay reach beyond the State b y lessening the am ount of intoxicating liquors exported." Kidd v.\nPearson, 128 U .S. 1, 22 (1888). Seealso F oster v. Kansas, 112 U.S. 201, 206 (1884); Bartemeyer v. Iowa, 85\nU .S. 129, 133 (1873); The License Cases, 4 6 U.S. (5 H ow .) 504, 57 6 -7 7 (1847) (Taney, C.J.).\n5 T hus, state statutes th at regulate the entry o f alcohol in order to p rotect a state liquor monopoly. State\nBoard v. Young\'s Market Co., 299 U.S. 59 (1936), o r to retaliate against other states\xe2\x80\x99 discrim inatory laws,\nIndianapolis Brewing Co. v. Liquor Control Comm\xe2\x80\x99n, 305 U.S. 391 (1939), have been upheld even though\nsuch legislation \xe2\x80\x9cw ould obviously have b e en unconstitutional\xe2\x80\x9d in the absence of the Tw enty-First A mend\xc2\xad\nm ent. State Board v. Young\xe2\x80\x99s Market Co., 299 U.S. at 62. Prior to passage o f the Eighteenth A mendment,\nsim ilar discrim inatory statu tes barring th e entry o f alcohol into a state except under the auspices o f the state\nliqu o r m onopoly w ere struck down as an im perm issible burden on interstate com m erce. See, e.g., Vance v.\nW.A. Vandercook Co. (N o. 1), 170 U .S. 438 (1898); Scott v. Donald. 165 U.S. 58 (1897). The legislative\nhisto ry o f \xc2\xa7 2 indicates that it was passed, at least in part, to assure the \xe2\x80\x9c dry\xe2\x80\x9d states that they would be able to\ndefend th em selves against shipments o f alcohol into their states. 76 C ong. Rec. 4141 (1933).\n\n54\n\n\x0cprived the federal government of any authority under the Commerce Clause over\nalcohol were quickly rejected. United States v. Frankfort Distilleries, Inc., 324 U.S.\n293,299 (1945); Jameson & Co. v. Morgenthau, 307 U.S. 171, 172-73 (1939).6\nWe believe that H.R. 3870 is constitutional for three reasons. First, we do not\nbelieve that H.R. 3870 violates the literal language of \xc2\xa7 2 of the Twenty-First\nAmendment. Forbidding the sale of alcohol to those under 21 in a state that\npermits sales to those over, for example, the age of 18 is not \xe2\x80\x9cin violation of the\nlaws\xe2\x80\x9d of the state. Id. It may replace a permissive state policy with a more\nrestrictive federal statute, but it does so without literally violating a state\nstatute.7 Thus, the ban on sale of alcohol to those under 21 raises questions\nunder the Twenty-First Amendment only because some have assumed that\nbroad federal deference to state action in this area is a matter of constitutional\nlaw rather than policy. Second, even assuming that H.R. 3870 were read to be\n\xe2\x80\x9cin violation\xe2\x80\x9d of a more permissive state law because the bill conflicts with the\npolicy expressed by the state law, we believe that it would, under the balancing\ntest articulated in the Supreme Court\xe2\x80\x99s most recently decided case in this area,\nCalifornia Retail Liquor Dealers Ass \'n v. M idcal Aluminum, Inc., 445 U.S. 97,\n108 (1980) (M idcal), pass constitutional muster because the federal interests\nwould outweigh any particular state\xe2\x80\x99s interest.\nM idcal involved a Sherman Act challenge to a California law governing\nwine pricing. In resolving whether the Sherman Act applied, the Supreme\nCourt addressed the issue whether \xc2\xa7 2 of the Twenty-First Amendment permit\xc2\xad\nted California to countermand the congressional policy in favor of competition.\nThe Court emphasized that \xc2\xa7 2 and the Commerce Clause must be viewed as\npart of a whole. \xe2\x80\x98\xe2\x80\x9c Like other provisions of the Constitution, each must be\nconsidered in light of the other, and in the context of the issues and interests at\nstake in any concrete case.\xe2\x80\x99\xe2\x80\x9d Id. at 109 (quoting H ostetter v. Idlewild Liquor\nCorp., 377 U.S. 324, 331-32 (1964)). The focus of the analysis should be a\n\xe2\x80\x9cpragmatic effort to harmonize state and federal powers\xe2\x80\x9d that gives proper\nrespect to both Clauses:\n6 Id Jameson & Co. v. Morgenthau, the C ourt said:\n\n[T]he Federal Alcohol A dm inistration Act was attacked upon the ground that the Tw enty-First \xe2\x96\xa0\nAmendm ent to the Federal C onstitution gives to the States com plete and exclusive control over\ncommerce in intoxicating liquors, unlim ited by the commerce clause, and hence that Congress\nhas no longer authority to control the im portation o f these com m odities into the United States.\nW e see no substance in this contention.\n307 U.S. at 172-73; see also H anfv. United States. 235 F.2d 710 (8th Cir.), cert . denied, 352 U.S. 880\n(1956); Old Monastery Co. v. United States, 147 F 2 d 905 (4th C ir.), cert, denied, 326 U.S. 734 (1945);\nJatros v. Bowles. 143 F.2d 453 (6th Cir. 1944); Arrow Distilleries, Inc. v. Alexander, 109 F.2d 397 (7th Cir),\ncert, denied, 310 U .S. 646 (1940)\n7 T herefore, in states that do not forbid drinking under the age o f 18, H R. 3870\xe2\x80\x99s passage w ill not oust a\nmore perm issive state statute. The Fifth Circuit has read the T w enty-First Amendment as providing authority\nfor perm issive state alcohol laws to override more restrictive federal regulations, notw ithstanding the\nSuprem acy C lause. Cf. Castlewood Int\'l Corp. v. Simon, 596 F.2d 638 (5th Cir. 1979), vacated, 446 U.S. 949\n(1980), opinion reinstated on remand, 626 F.2d 1200 (5th Cir. 1980) (Florida law perm itting sales at\nunlim ited discount to retailers prevailed over D epartm ent o f the Treasury regulation forbidding same;\nF lorida\'s interest in regulating intrastate retailers greater than federal interest in uniform national regula\xc2\xad\ntions). See also Wine Indus, v. Miller. 609 F.2d 1167 (5th Cir. 1980); Washington Brewers Inst. v. United\nStates. 137 F.2d 964 (9th Cir.), cert, denied, 320 U.S. 776 (1943).\n\n55\n\n\x0c[T]here is no bright line between federal and state powers over\nliquor. The Twenty-First Amendment grants the States virtually\ncomplete control over whether to permit importation or sale of\nliquor and how to structure the liquor distribution system. Al\xc2\xad\nthough States retain substantial discretion to establish other\nliquor regulations, those controls may be subject to the federal\ncommerce power in appropriate situations. The competing state\nand federal interests can be reconciled only after careful scru\xc2\xad\ntiny of those concerns in a \xe2\x80\x9cconcrete case.\xe2\x80\x9d\nM idcal, 445 U.S. at 110.8\n\nThe analysis of H.R. 3870 must begin, therefore, with an identification of the\nstate and federal interests involved. States that already prohibit drinking by\nthose under 21 have interests that coincide, at least presently, with the federal\ninterests detailed in \xc2\xa7 1 of H.R. 3870. The practical effect of the proposed bill\nwould be to assist those states in enforcing their own laws by reducing the\navailability of alcohol in neighboring states that have more permissive laws.\nOn the other hand, states that have drinking ages lower than 21 have\npresumably made a legislative determination that drinking by those over, for\nexample, the age of 18 is permissible. The interests of these states may be\ndescribed as protecting their separate decisions to permit access to liquor to\nthose over 18.9\nThe federal government\xe2\x80\x99s interest is, we assume, the economic injuries and\nresultant allocation of resources flowing in interstate commerce caused by\n8 In Midcal, the C ourt identified the federal interest as the \xe2\x80\x9cfam iliar and substantial\xe2\x80\x9d one o f a national policy\nfavoring com petition. 445 U.S. at 110. The state\'s interest in the resale price m aintenance statute had been\nidentified by the C alifo rn ia Supreme C ourt as tw ofold: prom otion o f tem perance and orderly market\nconditions. Id. at 112. T hat same c o u rt had then found, how ever, that there was in fact little correlation\nbetw een the statute and eith er tem perance or orderly m arket conditions. The U nited States Suprem e Court\nstated, in co n clu d in g that the federal in terests outw eighed state concerns. \xe2\x80\x9c [w]e have no basis fo r disagreeing\nw ith the view o f the C alifornia courts th at the asserted state interests are less substantial than the national\npolicy in fav o r o f com petition.\xe2\x80\x9d Id. at 113.\n9 T here may also be states, particularly those w ith a m onopoly on liquor sales, that have an econom ic\ninterest in prom oting sales to those o v er 18. T o the extent that states advance an econom ic interest, however,\nit seem s reasonable to assum e that the federal governm ent can dem onstrate that its econom ic interest in\nproperty and people probably outweighs w hatever the particular sta te \'s individual interest is in revenue from\npotential sales. W e do not believe that th e exercise o f C ongress\xe2\x80\x99 authority in this fashion under the Commerce\nC lause w ould be h eld to violate any state interest protected by the Tenth A mendment. The sale o f alcohol by\na state m onopoly is not one o f the \xe2\x80\x9cintegral governm ent functions,\xe2\x80\x9d National League o f Cities v. (Jsery, 426\nU.S. 833, 855 (1976), protected by that Amendm ent from federal interference. See Ohio v. Helvering, 292\nU.S. 360, 3 6 8 -6 9 (1934); South Carolina v. United States, 199 U.S. 437, 463 (1905). Both Ohio and South\nCarolina involved state challenges to federal taxes on the state liquor monopoly. The South Carolina Court\nheld th at the sale o f liquor by a state m onopoly \xe2\x80\x9c is o f a private nature\xe2\x80\x9d and not a governm ental function w hose\ntaxation w ould \xe2\x80\x9c im pede o r embarrass a State in the discharge o f its functions.\xe2\x80\x9d 199 U.S. at 463. This ruling\nwas reaffirm ed in the Ohio case notw ithstanding passage o f the Tw enty-First Amendment:\nA d istinction is sought in the fact th a t after that case was decided the Eighteenth A mendment was\npassed, and thereby, it is contended, the traffic in intoxicating liquors ceased to be pnvate\nbusiness, and then w ith the repeal o f the am endm ent assum ed a status which enables a state to\ncarry it on under the police pow er. The point seem s to us altogether fanciful. The Eighteenth\nA m endm ent outlaw ed the traffic; but, certainly, it did not have the effect o f converting w hat had\nalw ays been a private activity in to a governm ental function.\nOhio v. Helvering, 292 U .S. at 369.\n\n56\n\n\x0cdrunk drivers under the age of 21. H.R. 3870, \xc2\xa7 1. The loss of life, the crippling\nof individuals, the loss to production because of time lost from work, and the\nproperty damage caused by accidents involving such drunk drivers will, we\nassume, be detailed in H.R. 3870\xe2\x80\x99s legislative history.10 Using M idcal \'s bal\xc2\xad\nancing test, we believe that a court could find, assuming a sufficient legislative\nhistory, that the federal government\xe2\x80\x99s interest in preventing damage to national\ncommerce outweighed any particular state\xe2\x80\x99s interest in permitting access to\nliquor for those under 21.\nFinally and, we believe, importantly, given that \xc2\xa7 2 of the Twenty-First\nAmendment was intended to assure that states would be able to enact restrictive\nlegislation retaining prohibition on a local level, 76 Cong. Rec. 4140-41\n(1933), it would be anomalous if states could use \xc2\xa7 2 to insist on permissive\nstate laws that could frustrate federal efforts directed towards a limited form of\ntemperance.\nConclusion\nH.R. 3870 will not mandate importation of alcohol into any state in violation\nof its laws. Under the M idcal test, Congress could, we believe, articulate a\nfederal interest that would outweigh a state\xe2\x80\x99s interest in providing its citizens\nunder the age of 21 access to alcohol. We therefore believe that H.R. 3870 will\nsurvive constitutional attack.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n10 W e assum e that the statistical evidence will be more persuasive than that presented to the Suprem e C ourt\nin Craig v. Boren, 429 U .S. 190 (1976), and rejected there as too tenuous. See id. at 200-04 (striking dow n\nstate ban on sale o f 3.2 percent beer to males between the ages o f 18 and 21).\n\n\x0c'