b'Section 235A of the Immigration and Nationality Act\nSection 235A o f the Im m igration and N ationality Act requires the A ttorney Genera) to establish and\nm aintain certain p reinspection stations, p rovided the foreign countries concerned have consented\nto th e estab lish m en t o f such stations on th e ir territory and provided th at certain other preconditions\nh ave been satisfied.\nSection 2 35A d o es not o blige the Attorney G eneral or any other executive branch official to enter\ninto diplo m atic n egotiations w ith foreign countries in o rd er to obtain their consent to the establish\xc2\xad\nm ent o f p reinspection stations on their territory, and it does not require that preinspection stations\nbe estab lish ed b efo re the preconditions h av e been satisfied. A ccordingly, section 235A does not\nu n con stitutionally infringe on the President\xe2\x80\x99s authonty to conduct diplom atic relations.\n\nOctober 23, 2000\nM\n\nem orandum\n\nO p in io n\n\nI m m ig r a t i o n\n\nand\n\nfo r t h e\n\nG en era l C o u n sel\n\nN a t u r a l iz a t io n S e r v i c e\n\nYou have requested our opinion whether section 235A of the Immigration and\nNationality Act ( \xe2\x80\x9c ENA\xe2\x80\x9d ), 8 U.S.C. \xc2\xa7 1225a, which requires the Attorney General\nto establish and maintain immigration preinspection stations in certain foreign air\xc2\xad\nports, unconstitutionally infringes on the President\xe2\x80\x99s authority to conduct diplo\xc2\xad\nmatic relations with other nations. As we explain more fully below, we believe\nthat section 235A requires the Attorney General to establish and maintain certain\npreinspection stations provided the foreign countries concerned have consented\nto the establishment of such stations on their territory and provided that certain\nother preconditions have been satisfied. Section 235A does not, however, oblige\nthe Attorney General or any other executive branch official to enter into diplo\xc2\xad\nmatic negotiations with foreign countries in order to obtain that consent, and it\ndoes not require that preinspection stations be established before the preconditions\nhave been satisfied.\n\nBACKGROUND\nSection 235A was added to the INA by section 123 of the Illegal Immigration\nReform and Immigrant Responsibility Act of 1996, Pub. L. No. 104\xe2\x80\x94208, 110\nStat. 3009\xe2\x80\x94546, 3009-560 ( \xe2\x80\x9c IIRIRA\xe2\x80\x9d ). It mandates the establishment of immigra\xc2\xad\ntion \xe2\x80\x9c preinspection\xe2\x80\x9d stations at certain foreign airports.1 Prior to the passage of\nsection 235A, the INA authorized, but did not require, the establishment of\npreinspection stations, and the relevant statutory provisions were neither modified\n1 \xe2\x80\x9c Preinspection\xe2\x80\x9d generally refers to immigration inspection procedures conducted at foreign ports of embarkation\nby United States authorities for passengers seeking entry into the United States In some instances, immigration\npreinspection is accompanied by U S. Customs clearance as well. Sites containing both immigration and customs\ninspection are generally called \xe2\x80\x9c preclearance\xe2\x80\x9d sites See, e.g., Agreement Between the Government of the United\nStates o f America and the G overnment of Canada on Air Transport Preclearance, May 8, 1974, art 1(a), 25 U S T\n763 ( \xe2\x80\x9c U S.-Canada A greem ent\xe2\x80\x9d ). Section 235A refers only to preinspection.\n\n276\n\n\x0cSection 235A o f the Immigration and Nationality Act\n\nnor repealed by passage of section 235A. Specifically, under INA \xc2\xa7 103(a)(7),\n8 U.S.C. \xc2\xa7 1103(a)(7), the Attorney General \xe2\x80\x9c may, with the concurrence of the\nSecretary of State, establish offices of the [INS] in foreign countries.\xe2\x80\x9d Pursuant\nto that authority, the INS established and maintains preinspection stations at air\xc2\xad\nports in Canada, Ireland, Bermuda, and several other ports of embarkation in the\nCaribbean. Establishing those stations involved entering into diplomatic negotia\xc2\xad\ntions with the foreign countries involved. See, e.g., U.S.-Canada Agreement, 25\nU.S.T. at 763.\nIn contrast, section 235A requires (and does not merely authorize) the establish\xc2\xad\nment of preinspection stations. Section 235A(a)(l), which is entitled \xe2\x80\x9c New Sta\xc2\xad\ntions,\xe2\x80\x9d provides:\nSubject to paragraph (5), not later than October 31, 1998, the\nAttorney General, in consultation with the Secretary of State, shall\nestablish and maintain preinspection stations in at least 5 of the\nforeign airports that are among the 10 foreign airports which the\nAttorney General identifies as serving as last points of departure\nfor the greatest numbers of inadmissible alien passengers who\narrive from abroad by air at ports of entry within the United States.\nSuch preinspection stations shall be in addition to any preinspection\nstations established prior to the date of the enactment of such Act\n[September 30, 1996].\nAdditionally, section 235A(a)(4), which is entitled \xe2\x80\x9c Additional Stations,\xe2\x80\x9d pro\xc2\xad\nvides:\nSubject to paragraph (5), not later than October 31, 2000, the\nAttorney General, in consultation with the Secretary of State, shall\nestablish preinspection stations in at least 5 additional foreign air\xc2\xad\nports which the Attorney General, in consultation with the Secretary\nof State, determines, based on the data compiled under paragraph\n(3) and such other information as may be available, would most\neffectively reduce the number of aliens who arrive from abroad by\nair at points of entry within the United States who are inadmissible\nto the United States. Such preinspection stations shall be in addition\nto those established prior to the date of the enactment of such Act\n[September 30, 1996] or pursuant to paragraph (l).2\n2 Section 235A(a)(3), which is referenced in section 235A(a)(4), provides\nNot later than November 1, 1997, and each subsequent November 1, the Attorney General shall compile\ndata identifying \xe2\x80\x94\n(A) the foreign airports which served as last points o f departure for aliens who arrived by air at United\nStates ports o f entry without valid documentation dunng the preceding fiscal years,\n(B) the number and nationality o f such aliens arriving from each such foreign airport, and\nContinued\n\n277\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nFinally, sections 235A(a)(l) and (4) are both \xe2\x80\x9c [s]ubject to\xe2\x80\x9d section 235A(a)(5),\nwhich identifies certain \xe2\x80\x9c [c]onditions\xe2\x80\x9d :\nPrior to the establishment of a preinspection station the Attorney\nGeneral, in consultation with the Secretary of State, shall ensure\nthat \xe2\x80\x94\n(A) employees of the United States stationed at the preinspection\nstation, and their accompanying family members will receive appro\xc2\xad\npriate protection;\n(B) such employees and their families will not be subject to\nunreasonable risks to their welfare and safety; and\n(C) the country in which the preinspection station is to be estab\xc2\xad\nlished maintains practices and procedures with respect to asylum\nseekers and refugees in accordance with the Convention Relating\nto the Status of Refugees (done at Geneva, July 28, 1951), or the\nProtocol Relating to the Status of Refugees (done at New York,\nJanuary 31, 1967), or that an alien in the country otherwise has\nrecourse to avenues of protection from return to persecution.\nThese requirements stand as conditions precedent to the statutory duty to establish\nany o f the preinspection stations called for by sections 235A(a)(l) and (4): the\nAttorney General must ensure that they are met \xe2\x80\x9c [p]rior to the establishment of\na preinspection station,\xe2\x80\x9d INA \xc2\xa7235A(a)(5), and the statutory requirement that\npreinspection stations be established by defined dates is \xe2\x80\x9c [sjubject to\xe2\x80\x9d these pre\xc2\xad\nconditions. Id. \xc2\xa7235A (a)(l) and (4).3\nAfter the enactment of section 235A, a working group consisting of representa\xc2\xad\ntives from the INS and the Department of State was established to identify poten\xc2\xad\ntial sites for preinspection stations. The working group ultimately identified sixteen\npotential sites (in fifteen countries) for preinspection stations that met the criteria\nset forth in section 235A.4 The Commissioner of the INS sent a letter to the\nDepartment of State requesting that it ascertain, inter alia , whether countries con\xc2\xad\ntaining the sites identified by the working group were willing to allow\npreinspection stations on their territory. The State Department then instructed\n(C) the prim ary routes such aliens followed from their country o f ongin to the United States\n3 Preinspection stations may be established fo r a variety o f reasons, including passenger convenience See, e g ,\nU .S -C anada Agreement, preamble, 25 U.ST at 764 (staling that \xe2\x80\x9c preclearance facilitates air travel between the\ntwo countries\xe2\x80\x9d ) It is clear from the text of section 235A that the preinspection stations it contemplates are intended\nto decrease the number o f inadmissible aliens entering the United States The legislative history confirms this point\nSee H.R. Rep No 104-469, 177-78 (1996) ( \xe2\x80\x9c [P]assengers refused permission [at a preinspection station] to board\n[an airplane bound for the United States], on the ground that they do not have valid documents to be admitted\nor are otherw ise inadmissible, will be prevented from even reaching a U.S port of entry, thus reducing the burden\non INS inspection facilities and the likelihood that unauthorized aliens will enter the U S \xe2\x80\x9d )\n4 Those sites are- London, M exico City, Tokyo, Amsterdam, Frankfurt, Pans, Taipei, Seoul, Caracas, Santo\nDomingo, Kingston, Sao Paolo, Rome, Guadalajara, Guatemala City, and Port au Pnnce See Memorandum for Chns\nSale, D eputy Commissioner, INS, from Michael D. Cronin, Assistant Commissioner. INS, Re- Preinspection Working\nGroup at 5 -6 (July 22, 1997).\n\n278\n\n\x0cSection 235A o f the Immigration and Nationality Act\n\nAmerican embassies and consulates in the relevant countries to explore that issue\nwith host country officials. In a letter dated January 20, 1998, the Assistant Sec\xc2\xad\nretary of State for Consular Affairs reported that \xe2\x80\x9c only one [country] (Jamaica)\ngave preliminary indication that it would support establishment of an INS\npreinspection station.\xe2\x80\x9d Letter for Hon. Doris Meissner, Commissioner, INS, from\nMary A. Ryan, Assistant Secretary for Consular Affairs, Dept, of State at 2 (Jan.\n20, 1998) (\xe2\x80\x9c Ryan Letter\xe2\x80\x9d ).5 To date, no preinspection stations have been estab\xc2\xad\nlished pursuant to section 235A.\n\nDISCUSSION\nTo determine whether section 235A unconstitutionally intrudes on the Presi\xc2\xad\ndent\xe2\x80\x99s authority to conduct foreign relations, we begin by identifying section\n235A\xe2\x80\x99s precise requirements. For present purposes, this involves interpreting sec\xc2\xad\ntions 235A(a)(l), (4), and (5). The first two provisions stipulate how many\npreinspection stations are to be established and maintained, the criteria those sta\xc2\xad\ntions must meet, and the dates by which they are to be established. The third\nspecifies certain conditions that must be met before a preinspection station is\nestablished.\nSections 235A(a)(l) and (4) both direct the Attorney General, in consultation\nwith the Secretary of State, to \xe2\x80\x9c establish\xe2\x80\x9d (and, in the case of section 235A(a)(l),\n\xe2\x80\x9c maintain\xe2\x80\x9d ) preinspection stations meeting certain criteria. Section 235A(a)(l)\nprovides that, by Octobcr 31, 1998, the Attorney General \xe2\x80\x9c shall establish and\nmaintain preinspection stations in at least 5 of the foreign airports that are among\nthe 10 foreign airports which the Attorney General identifies as serving as last\npoints of departure for the greatest numbers of inadmissible alien passengers who\narrive from abroad by air at ports of entry within the United States.\xe2\x80\x9d Id. Section\n235A(a)(4) provides that, by October 31, 2000, she \xe2\x80\x9c shall establish preinspection\nstations in at least 5 additional foreign airports which the Attorney General, in\nconsultation with the Secretary of State, determines, based on the data compiled\nunder paragraph (3) and such other information as may be available, would most\neffectively reduce the number of aliens who arrive from abroad by air at points\nof entry within the United States who are inadmissible to the United States.\xe2\x80\x9d\nId. Sections 235A(a)(l) and (4) thus appear to contemplate a two-step process.\nFirst, the Attorney General is to identify potential sites for preinspection stations\nthat meet the criteria set out in the relevant section. Second, she is to establish\nsuch stations at a minimum number of sites by the dates prescribed.\n5 The Ryan Letter noted that \xe2\x80\x9c [o]ne country (Dominican Republic) indicated it might be willing to allow a\npreinspection staiion, but only if full preclearance was allowed, i.e customs inspections as w ell.\xe2\x80\x9d Ryan Letter at\n2 The Ryan Letter further explained that fourteen countries were \xe2\x80\x9c queried \xe2\x80\x9d Id at 2. As to the fifteenth country,\nGuatemala, the Ryan Letter explained that \xe2\x80\x9c [o]ur embassy in Guatemala has not yet been able to obtain an initial\nreaction from authorities in that country.\xe2\x80\x99* Id.\n\n279\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nAdditionally, however, sections 235A(a)(l) and (4) both provide that their\nrequirements are \xe2\x80\x9c [s]ubject to\xe2\x80\x9d section 235A(a)(5), which, in turn, sets out certain\nconditions that must be met before a preinspection station is established. See supra\np. 279 (quoting section 235A(a)(5)). The ordinary meaning of \xe2\x80\x9c subject to\xe2\x80\x9d\nincludes \xe2\x80\x9c governed or affected b y .\xe2\x80\x9d Black\xe2\x80\x99s Law Dictionary 1425 (6th ed. 1990).\nThus, sections 235A(a)(l) and (4), including the deadlines they prescribe, are\n\xe2\x80\x9c governed or affected by\xe2\x80\x9d the conditions set out in section 235A(a)(5).6 Once\nthe Attorney General identifies a potential site for a preinspection station, the\nrequirement that it be \xe2\x80\x9c established\xe2\x80\x9d by a particular date does not take effect until\nthe Attorney General is able to ensure that the site meets section 235A(a)(5)\xe2\x80\x99s\nconditions.\nSection 235A does not specify precisely how the Attorney General is to ensure\nthat the sites she selects for preinspection stations meet section 235A(a)(5)\xe2\x80\x99s\nconditions or how she is to go about establishing and maintaining such stations\nonce they meet those conditions. Because the preinspection stations are to be\nlocated in foreign countries, establishing those stations is not entirely within the\ncontrol of the Attorney General or, indeed, the executive branch as a whole.\nRather, preinspection stations can only be established after the United States\nobtains the consent of the foreign countries concerned. See, e.g., U.S.-Canada\nAgreement, supra.1\nFor two reasons, we do not read section 235A as requiring the executive branch\nto seek or obtain such consent. First, such a reading would impose on the execu\xc2\xad\ntive branch the obligation to achieve outcomes beyond its control. While the\nExecutive may negotiate with foreign sovereigns in an effort to obtain their con\xc2\xad\nsent to the establishment of preinspection stations within their territory, it is not\nwithin the Executive\xe2\x80\x99s power to ensure that such consent is actually given. Simi\xc2\xad\nlarly, the Attorney General\xe2\x80\x99s ability to ensure that section 235A(a)(5)\xe2\x80\x99s conditions\nare met depends at least in part on the cooperation of the relevant foreign govern\xc2\xad\nment, cooperation that she cannot guarantee. Providing \xe2\x80\x9c appropriate protection\xe2\x80\x9d\nto federal employees working at preinspection stations, protecting those employees\nand their families from \xe2\x80\x9c unreasonable risks to their welfare and safety,\xe2\x80\x9d and\nensuring that aliens in a foreign country receive appropriate \xe2\x80\x9c protection from\nreturn to persecution\xe2\x80\x99 \xe2\x80\x99 are all undertakings that require the cooperation and partici\xc2\xad\npation of the foreign sovereign concerned. Id. Without that cooperation and\nparticipation, it is not possible for the Attorney General herself either to ensure\n6 C f American Rivers v. FERC, 201 F 3d 1186, 1204 (9th Cir. 2000) (\xe2\x80\x9c W e therefore interpret \xe2\x80\x98subject to paragraph\n(2)\xe2\x80\x99 to mean precisely what it says subsection 1 0 (j)(l) is governed or affected by subsection 10(j)(2) \xe2\x80\x9d )\n7 This is tm e both as a practical matter and as a matter o f customary international law Under the latter, it is\ngenerally well-settled that an agent of a state m ay not act on the state\xe2\x80\x99s behalf within foreign territory without\nthe consent o f the foreign sovereign See, e.g., Ian Brownlie, Principles o f Public International Law 306-07 (3d\ned 1979); Hans Kelsen, Principles o f International Law 317-18 (2d ed 1966) ( \xe2\x80\x9c That the territory enclosed by\nthe boundaries o f a state legally belongs to this state o r \xe2\x80\x94 as it is usually characterized\xe2\x80\x94 that it is under the territorial\nsupremacy or sovereignty o f this state means that all individuals staying on this territory are, in principle, subjected\nto the legal pow er o f that state and only of that state.\xe2\x80\x99\xe2\x80\x99)\n\n280\n\n\x0cSection 235A o f the Immigration and Nationality Act\n\nthat section 235A(a)(5)\xe2\x80\x99s conditions are met or to establish and maintain\npreinspection stations as required by sections 235A(a)(l) and (4).\nWe presume that section 235A is not intended to demand the impossible of\nthe Attorney General. See M cNeil v. Time Ins. Co., 205 F.3d 179, 187 (5th Cir.\n2000) (\xe2\x80\x9c It is a flawed and unreasonable construction of any statute to read it\nin a manner that demands the impossible.\xe2\x80\x9d ); Ambassadors and other Public M in\xc2\xad\nisters o f the United States, 7 Op. Att\xe2\x80\x99y Gen. 186, 218 (1855) (Cushing, Att\xe2\x80\x99y\nGen.) (\xe2\x80\x9c [I]t is unreasonable to presume in any circumstances . . . that Congress\nintended to enact what is unreasonable.\xe2\x80\x9d ). Accordingly, we do not read section\n235A as requiring the executive branch to obtain either foreign countries\xe2\x80\x99 consent\nto the establishment of preinspection stations or their cooperation in ensuring that\nsection 235A(a)(5)\xe2\x80\x99s conditions are met with respect to those stations.\nSecond, we do not read section 235A to require the Executive to enter into\ndiplomatic negotiations to obtain foreign countries\xe2\x80\x99 consent to the establishment\nof preinspection stations, because such a requirement would unconstitutionally\ninfringe on the President\xe2\x80\x99s foreign affairs power. The Constitution commits to\nthe President the responsibility for conducting the nation\xe2\x80\x99s foreign affairs.8 That\nresponsibility includes the \xe2\x80\x98\xe2\x80\x98 \xe2\x80\x98exclusive authority to determine the time, scope, and\nobjectives\xe2\x80\x99 \xe2\x80\x9d of all international negotiations. Issues Raised by Foreign Relations\nAuthorization Bill, 14 Op. O.L.C. 37, 41 (1990) (quoting 2 Pub. Papers of Ronald\nReagan 1541, 1542 (1987) (President Reagan\xe2\x80\x99s statement on signing the Foreign\nRelations Authorization Act, Fiscal Years 1988 and 1989)). If section 235A were\nconstrued to require the Executive to negotiate with foreign countries in an attempt\nto obtain their consent to the establishment of preinspection stations, it would\nunconstitutionally intrude on that exclusive authority. Such a reading would run\nafoul of the principle that Congress may not require the Executive to \xe2\x80\x9c initiate\ndiscussion with foreign nations\xe2\x80\x9d or \xe2\x80\x9c order[] the Executive to negotiate and enter\ninto treaties\xe2\x80\x9d or other types of international agreements. Earth Island Inst. v.\nChristopher, 6 F.3d 648, 652-53 (9th Cir. 1993); see 2 Pub. Papers of William\nJ. Clinton 1685, 1688 (1999) (President Clinton\xe2\x80\x99s statement on signing the\nNational Defense Authorization Act for Fiscal Year 2000) ( \xe2\x80\x9c Congress may not\ndirect that the President initiate discussions or negotiations with foreign govern\xc2\xad\nments.\xe2\x80\x9d ). It would also impermissibly specify the precise subject matter o f the\nExecutive\xe2\x80\x99s communications with foreign governments. See id. at 2035, 2036\n(President Clinton\xe2\x80\x99s statement on signing Legislation to Locate and Secure the\ns See U.S. Const art II, \xc2\xa7\xc2\xa7 1-3, Department o f Navy v. Egan, 484 U.S. 518, 529 (1988) (the Supreme Court\nhas \xe2\x80\x9c recognized \xe2\x80\x98the generally accepted view that foreign policy [i]s the province and responsibility of the Execu\xc2\xad\ntive\xe2\x80\x99 \xe2\x80\x9d ) (quoting Haig v Agee, 453 U S 280, 293-94 (1981)), Alfred Lord Dunhill o f London, Inc. v. Republic\no f Cuba, 425 U.S. 682, 7 05-06 n.18 (1976) ( \xe2\x80\x9c [T]he conduct of [foreign policy] is committed primarily to the Execu\xc2\xad\ntive Branch.\xe2\x80\x9d ); U nited States v Louisiana, 363 U S ), 35 (1960) (the President is \xe2\x80\x9c the constitutional representative\nof the United States in its dealings with foreign nations\xe2\x80\x9d ), Sanchez-Espinoza v Reagan, 770 F.2d 202, 210 (D.C\nCir. 1985) (Scalia, J.) ( \xe2\x80\x9c [BJroad leeway\xe2\x80\x9d is \xe2\x80\x9c traditionally accorded the Executive in matters o f foreign affairs.\xe2\x80\x9d );\nThomas Jefferson, Opinion on the Powers o f the Senate Respecting Diplomatic Appointments (Apr. 24, 1790), in\n16 The Papers o f Thomas Jefferson 378, 379 (Julian P Boyd ed. 1961) ( \xe2\x80\x9c The transaction of business with foreign\nnations is Executive altogether.\xe2\x80\x9d ).\n\n281\n\n\x0cOpinions of Ihe Office o f Legal Counsel in Volume 24\n\nReturn of Zachary Baumel, a United States Citizen, and Other Israeli Soldiers\nM issing in Action) ( \xe2\x80\x9c To the extent that this provision can be read to direct the\nSecretary of State to take certain positions in communications with foreign govern\xc2\xad\nments, it interferes with my sole constitutional authority over the conduct of diplo\xc2\xad\nmatic negotiations.\xe2\x80\x9d ); 2 Pub. P apers o f William J. Clinton 1815, 1815 (1996)\n(President Clinton\xe2\x80\x99s statement on signing the Sustainable Fisheries Act) ( \xe2\x80\x9c Under\nour Constitution, it is the President who articulates the Nation\xe2\x80\x99s foreign policy\nand who determines the timing and subject matter of our negotiations with foreign\nnations.\xe2\x80\x9d ).9 Accordingly, because section 235A does not expressly require the\nExecutive to negotiate with foreign countries on the topic of preinspection stations,\nand because such a requirement would violate the constitutional separation of\npowers, we conclude that the statute should not be construed to so require.10\n\nCONCLUSION\nIn sum, we conclude that under section 235A, the Attorney General is required\nto identify certain potential sites for preinspection stations that fit the criteria set\nforth in sections 235A(a)(l) and (4). Before any such station is established, she\nis also required to ensure that the conditions prescribed in section 235A(a)(5) are\nsatisfied. A condition precedent both to the satisfaction of section 235A(a)(5)\xe2\x80\x99s\nconditions and to the actual establishment of any preinspection station is that the\nforeign government concerned agree to the establishment of the station. Construing\nsection 235A as requiring the executive branch to fulfill that condition would both\noblige the Executive to achieve outcomes beyond its control11 and infringe on\nthe Executive\xe2\x80\x99s broad authority over foreign affairs. Accordingly, we do not read\n9 See also Issues Raised by Foreign Relations Authorization Bill, 14 O p O L C at 41 ( \xe2\x80\x9c The President is the\nconstitutional representative o f the United States with regard to foreign affairs He manages our concerns with foreign\nnations, and must necessarily be most competent to determine when, how, and upon what subjects negotiations\nmay be urged with the greatest prospect of success.\xe2\x80\x9d ) (emphasis added) (quoting Reports of the Senate Committee\non Foreign Relations, S. Doc. No. 231, pt 8, 56th Cong., 2d Sess. 24 (1901)); H. Jefferson Powell, The President\xe2\x80\x99s\nAuthority O ver Foreign A ffa irs\xe2\x80\x99 An Executive Branch Perspective, 67 Geo. Wash L Rev. 527, 558 (1999) C \xe2\x80\x98[T]he\nexecutive\xe2\x80\x99s pow er over negotiations vests in it the discretion to determine the goals as well as the modes of diplo\xc2\xad\nm acy.\xe2\x80\x9d ).\n10 O ur approach on this point is consistent with the Supreme Court\xe2\x80\x99s admonition to interpret statutes so as to\navoid constitutional questions where possible. See Jones v. United States, 524 U.S. 848, 857 (2000) ( \xe2\x80\x9c [W]here\na statute is susceptible o f two constructions, by one of which grave and doubtful constitutional questions arise and\nby the other o f which such questions are avoided, our duty is to adopt the la tte r\xe2\x80\x9d ) (quoting United States ex rel\nAttorney G eneral v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909)); Jones v. United States, 526 U S . 227,\n239 (1999); Cahfano v. Yamasaki, 442 U S . 682, 693 (1979), Crowell v Benson, 285 U S 22, 62 (1932), cf.\nAshw ander v 7V A , 297 U S 288, 347 (1936) (Brandeis, J., concum ng) ( \xe2\x80\x9c [l]f a case can be decided on either\no f tw o grounds, one involving a constitutional question, the other a question of statutory construction or general\nlaw, the Court will decide only the latter.\xe2\x80\x9d )\n11 W e note that executive branch officials have, since the passage of section 235A, raised the issue o f preinspection\nstations with a num ber o f foreign governments After a joint INS-Department of State working group identified\nsixteen potential sites for preinspection stations, the State Department instructed American embassies and consulates\nin the countries concerned to explore the preinspection issue with host country officials. See supra pp 279-80\nO nly one o f the countries quened gave preliminary indication lhat it would support the establishment of a\npreinspection station within its territory See supra pp 279-80 & note 5; Ryan Letter at 2 W ithout that support,\nthe establishm ent o f preinspection stations in those countries does not appear possible.\n\n282\n\n\x0cSection 235A o f the Immigration and Nationality A ct\n\nsection 235A as requiring the Executive either to seek or to obtain the consent\nof foreign countries to the establishment of preinspection stations within their\nterritory.\nRANDOLPH D. MOSS\nAssistant Attorney General\nOffice o f Legal Counsel\n\n283\n\n\x0c'


b'Constitutionality of Awarding Historic Preservation Grants to\nReligious Properties\nA court applying current precedent is most likely to conclude that the direct award o f historic preserva\xc2\xad\ntion grants to churches and other pervasively sectarian institutions violates the Establishment Clause\nof the Constitution.\n\nOctober 31, 1995\nM e m o r a n d u m O p in io n\nDepartm ent\n\nfo r t h e\n\no f the\n\nS o l ic it o r\n\nIn t e r io r\n\nAt your request, we have reviewed your office\xe2\x80\x99s draft opinion regarding the\npermissibility under the Establishment Clause of awarding government historic\npreservation grants to churches and other religious properties.1 In particular, and\nas we discussed earlier, we have considered whether the Supreme Court\xe2\x80\x99s recent\ndecision in Rosenberger v. Rector & Visitors, 515 U.S. 819 (1995), directly\naddresses the particular question you have raised.\nAs discussed below, the Rosenberger decision, which deals with a form of\ngovernment aid to religion significantly different from that at issue here, does\nnot control the case you have presented. Accordingly, we have no occasion here\nto fully analyze the Rosenberger decision, nor to predict how it might apply in\nother contexts. Rather, our analysis is guided by Supreme Court case law devel\xc2\xad\noped prior to Rosenberger. We conclude that a reviewing court, applying current\nprecedent, likely would hold that making historic preservation grants to churches\nand other pervasively sectarian properties is inconsistent with the Establishment\nClause.\n1. Background\nOur understanding of the program in question, based primarily on the materials\nyou have provided us, is as follows. Organizations are eligible for historic\npreservation grants, funded by the federal government and awarded directly by\nthe states, if they are listed on the National Register. Listing on the National Reg\xc2\xad\nister, in turn, depends on satisfaction of fairly detailed criteria measuring \xe2\x80\x9c signifi\xc2\xad\ncance in American history, architecture, archeology, engineering, and culture,\xe2\x80\x9d\nincluding \xe2\x80\x9c integrity of location, design, setting, materials, workmanship, feeling,\nand association.\xe2\x80\x9d See 36 C.F.R. \xc2\xa760.4 (1995). A religious property qualifies for\nlisting if it \xe2\x80\x9c derivfes] primary significance from architectural or artistic distinction\nor historical importance.\xe2\x80\x9d Id. Listing on the National Register is only a threshold\ncondition of grant assistance; the states apparently make their own\n1\n\nDraft Memorandum for Roger F. Kennedy, Director, National Park Service, from John D. Leshy, Solicitor, Re:\n\nHistoric Preservation Grants for Religious Properties (\xe2\x80\x9c Draft Memo\xe2\x80\x9d ).\n\n267\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\n\xe2\x80\x9c determination[s] of needs and project worthiness in selecting projects to be\nfunded from the many applications submitted.\xe2\x80\x9d 2\nAt least since 1981, grants have not been made available to active churches\nor houses of worship under the program.3 Both the Reagan and the Bush Adminis\xc2\xad\ntrations took the position that direct financial support of active churches would\nbe inappropriate in light of Establishment Clause concerns.4 The question you\nhave raised is whether that policy may be reversed. Specifically, you have asked\nwhether historic preservation grants may be awarded directly to religious organiza\xc2\xad\ntions for the preservation of buildings currently used for religious purposes such\nas worship and education.5 Directly at issue appear to be grants for the preserva\xc2\xad\ntion of active churches or, perhaps, of other religious facilities that would be\nconsidered \xe2\x80\x9c pervasively sectarian\xe2\x80\x9d under the Supreme Court\xe2\x80\x99s jurisprudence.6\n2. Analysis\n\nAs your draft opinion recognizes, a series of Supreme Court cases decided prior\nto Rosenberger calls into considerable question any effort by the government to\nprovide monetary assistance directly to pervasively sectarian institutions.7 Because\nyour draft opinion itself discusses this line of authority, we limit ourselves to\na brief description of the two-part rule that has emerged to govern direct financial\nsupport of religious institutions.\nFirst, though the government may include religious institutions that are not\npervasively sectarian in neutral programs providing financial assistance, it must\nensure that government grants are not used to fund \xe2\x80\x9c specifically religious\nactivity\xe2\x80\x9d and are instead channeled exclusively to secular functions. As you note,\nthe Supreme Court has applied this principle quite stringently in a line of closely\nanalogous cases involving school construction and repair grants. In those cases,\nthe Court upheld grants to non-pervasively sectarian religious schools only when\nthe program in question expressly excluded from funding \xe2\x80\x9c any facility used or\nto be used for sectarian instruction or as a place for religious worship.\xe2\x80\x9d Tilton\nv. Richardson, 403 U.S. 672, 675 (1971) (approving provision of federal construc\xc2\xad\ntion grants to colleges and universities with religious affiliations).8\n2 Memorandum for Director, Heritage Conservation and Recreation Service, from Associate Solicitor, Conservation\nand W ildlife, Re: Historic Preservation Grants fo r Renovation o f Church Properties at 1 (M ar. 6, 1979).\n3 Draft M emo at 1; Letter for the Honorable Ja n e s G. W att, Secretary o f the Interior, from Frederick N. Khedouri,\nA ssociate Director, O ffice o f Management and Budget (Dec. 14, 1981) ( \xe2\x80\x9c K hedouri Letter*\xe2\x80\x99).\n4 The Reagan Administration appears to h ave rested its position on a policy decision m ade in \xe2\x80\x9c the context o f\nthe legal issues surrounding church-state affairs.\xe2\x80\x9d See K hedouri Letter at 1. The Bush Administration relied more\nexpressly on the conclusion that direct grants to active churches would be unlawful under Supreme Court case law\nconstruing the Establishm ent Clause. See L etter for the Honorable Peter H. Kostmayer, House o f Representatives,\nfrom Robert E. G rady, A ssociate Director, O ffice o f Management and Budget (Mar. 28, 1991).\n5 Draft Memo at 2.\n6Id. at 6 (assum ing that most if not all potential grantees would be deemed \xe2\x80\x9c pervasively sectarian\xe2\x80\x99\xe2\x80\x99).\n7 Id. at 5.\n0 See also Hunt v. McNair, 413 U.S. 734, 7 3 6 (1973) (upholding state-financed construction o f college and univer\xc2\xad\nsity facilities, subject to same restriction); Roemer v. Maryland Pub. Works Bd.t 426 U.S. 736, 740-41 (1976)\n\n268\n\n\x0cConstitutionality o f Awarding Historic Preservation Grants to Religious Properties\n\nThat the Court conceives of this restriction on use of public funds as both essen\xc2\xad\ntial and rather sweeping is illustrated by the Tilton case, holding that the expiration\nof a restriction after twenty years violates the Establishment Clause: \xe2\x80\x9c If, at the\nend of 20 years, the building is, for example, converted into a chapel or otherwise\nused to promote religious interests, the original federal grant will in part have\nthe effect of advancing religion.\xe2\x80\x9d Id. at 683. The Court made the same point\nin Nyquist, invalidating maintenance and repair grants to nonpublic schools in\npart because they lacked \xe2\x80\x9c appropriate restrictions\xe2\x80\x9d : \xe2\x80\x9c Nothing in the statute, for\ninstance, bars a qualifying school from paying out of state funds the salaries of\nemployees who maintain the school chapel, or the cost of renovating classrooms\nin which religion is taught, or the cost of heating and lighting those same facili\xc2\xad\nties.\xe2\x80\x9d 413 U.S. at 774. Importantly, the prohibition on public funding of facilities\nused for religious activity applies even where the government\xe2\x80\x99s purpose in funding\nthose facilities is concededly secular and \xe2\x80\x9c entirely appropriate for governmental\naction.\xe2\x80\x9d Tilton, 403 U.S. at 678-79; see Nyquist, 413 U.S. at 773-74.\nThe second part of the rule qualifies the first: with or without restrictions, the\ngovernment may not provide monetary aid directly to \xe2\x80\x9c pervasively sectarian\xe2\x80\x9d\ninstitutions, defined as institutions in which \xe2\x80\x9c religion is so pervasive that a\nsubstantial portion of [their] functions are subsumed in the religious mission.\xe2\x80\x9d\nHunt, 413 U.S. at 743. The outer boundaries of the \xe2\x80\x9c pervasively sectarian\xe2\x80\x9d cat\xc2\xad\negory are not well-defined, see Bowen v. Kendrick, 487 U.S. 589, 631 (1988)\n(Blackmun, J., dissenting), and the Supreme Court has used it most often \xe2\x80\x94 though\nnot exclusively9 \xe2\x80\x94 in connection with educational institutions. Nevertheless, we\nhave no doubt that you are correct in assuming that most if not all active houses\nof worship would fall within this category.10 Indeed, the notion that religion plays\nsomething less than a vital and pervasive role in an active church\xe2\x80\x99s mission might\nappear inconsistent with a proper respect for religious institutions as well as with\ncommon sense.\nAs the Court has explained, the reason for the prohibition on direct monetary\ngrants to pervasively sectarian institutions is the unacceptable risk that where sec\xc2\xad\nular and religious functions are \xe2\x80\x9c inextricably intertwined,\xe2\x80\x9d government aid,\nthough designated for a secular purpose, will in fact advance the institution\xe2\x80\x99s reli\xc2\xad\ngious mission. Meek v. Pittenger, 421 U.S. 349, 365-66 (1975) (invalidating\nprovision to pervasively sectarian schools of instructional material \xe2\x80\x9c earmarked\nfor secular purposes\xe2\x80\x9d ); Kendrick, 487 U.S. at 610. Again, it is immaterial to this\npart of the Court\xe2\x80\x99s analysis that provision of assistance would serve a legitimate\n(upholding provision o f noncategorical state grants to private colleges and universities, where grants may not be\nused for \xe2\x80\x9c sectarian purposes\xe2\x80\x9d ); Committee fo r Pub. Educ. v. Nyquist, 413 U.S. 756, 774 (1973) (invalidating state\nmaintenance and repair grants for nonpublic elementary and secondary schools in part because they lack restrictions\non use for religious purposes).\n9 At issue in Bowen were a broad range o f social services organizations with religious affiliations. The Court\nconcluded that the Establishment Clause prohibited those organizations that were \xe2\x80\x9c pervasively sectarian\xe2\x80\x9d from\nreceiving federal grants under the Adolescent Family Life Act, 42 U.S.C. \xc2\xa7\xc2\xa73007-3007-10. 487 U.S. at 620-21.\n10 Draft Memo at 6.\n\n269\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nsecular purpose, see Meek, 421 U.S. at 363; Kendrick, 487 U.S. at 602; what\nis critical is that the assistance also would have the effect of advancing religion\nbecause of the pervasively sectarian character of the recipients. Meek, 421 U.S.\nat 363. And even if it were possible, as a theoretical matter, to channel government\nfunds exclusively to secular functions in such institutions, the degree and kind\nof governmental monitoring necessary to ensure compliance with the requisite\nfunding restrictions would itself raise Establishment Clause problems. Kendrick,\n487 U.S. at 616-17.\nWe think that these concerns would be implicated squarely were the government\nto provide churches and other pervasively sectarian facilities with historic\npreservation grants. The draft opinion suggests that such grants might be permis\xc2\xad\nsible if restricted to the preservation of \xe2\x80\x9c secular elements\xe2\x80\x9d of otherwise religious\nbuildings \xe2\x80\x94 that is, if government assistance were used only for such purposes\nas exterior renovation, roof repair, and replacement of structurally necessary\ninternal components.11 What underlies the Court\xe2\x80\x99s decisions in this area, however,\nis an understanding that in the context of pervasively sectarian facilities, \xe2\x80\x9c secular\nelements\xe2\x80\x9d simply cannot be identified and separated from the overall religious\nmission. Indeed, renovation of active churches and other houses of worship\nappears to be a case in point. Though a structural element like a roof can be\ncharacterized as \xe2\x80\x9c secular\xe2\x80\x9d rather than \xe2\x80\x9c sectarian\xe2\x80\x9d in most contexts, the distinc\xc2\xad\ntion cannot be maintained in any meaningful sense when the roof is a component\npart of an active church.\nMoreover, even if such a distinction could be defended in the abstract, efforts\nby the government to identify those elements of a house of worship that do not\nhave \xe2\x80\x9c direct religious import\xe2\x80\x9d 12 could well involve the kind of \xe2\x80\x9c monitoring for\nthe subtle or overt presence of religious matter\xe2\x80\x9d prohibited by the Establishment\nClause. See Hernandez v. Commissioner, 490 U.S. 680, 694 (1989). It is our\nunderstanding that even the most basic structural features of a church may carry\nsymbolic religious import.13 Determining whether that is the case in any given\ninstance may require an inquiry into religious doctrine or belief that would\nimpermissibly entangle the government in religious affairs. See id. at 696-97\n(\xe2\x80\x9c [Requiring the Government to distinguish between \xe2\x80\x98secular\xe2\x80\x99 and \xe2\x80\x98religious\xe2\x80\x99\nbenefits or services [provided by Church of Scientology auditing sessions] may\nbe fraught with the sort of entanglement that the Constitution forbids.\xe2\x80\x99 \xe2\x80\x9d ). In short,\n"Id. at 3, 7.\n\'2 / i at 3.\n13 \xe2\x80\x9c Besides individual ornam ents and architectural features, the [church] structure, taken as a whole, can be a\nsym bol o f the entire religion:\n\xe2\x80\x98The visible church building was both a symbol and model for the invisible or \xe2\x80\x9c spiritual\xe2\x80\x9d church. . . .\nThe church was considered to be a tangible expression o f a host of images and ideas expressed in the\nBible. It was the body o f Christ, a c ity o f refuge, the New Jerusalem, G od\'s presence among m en.\xe2\x80\x99 \xe2\x80\x9d\nThom as Pak, Note, Free Exercise, Free Expression, and Landmarks Preservation, 91 Colum. L. Rev. 1813, 1841\n(1991) (quoting Paul Clowney, & Tessa Clow ney, Exploring Churches 65 (1982)).\n\n270\n\n\x0cConstitutionality o f Awarding Historic Preservation Grants to Religious Properties\n\nwe do not think that it is feasible, in theory or practice, to differentiate between\nreligious and secular elements of active houses of worship.\nThis is, we note, the conclusion reached in a different context by the Wash\xc2\xad\nington Supreme Court in First Covenant Church v. City o f Seattle, 840 P.2d 174\n(Wash. 1992) (en banc). In holding that the Free Exercise Clause prohibited\napplication of a landmark ordinance to restrict a church\xe2\x80\x99s ability to alter its exte\xc2\xad\nrior, the court relied in part on the inextricable link between the church\xe2\x80\x99s structure\nand its religious message: the \xe2\x80\x9c church building itself \xe2\x80\x98is an expression of Christian\nbelief and message\xe2\x80\x99 and . . . conveying religious beliefs is part of the building\xe2\x80\x99s\nfunction. . . . The relationship between theological doctrine and architectural\ndesign is well recognized.\xe2\x80\x9d Id. at 182. The court went on to reject an attempted\nseparation of religious from secular elements, finding that the ordinance\xe2\x80\x99s excep\xc2\xad\ntion for \xe2\x80\x9c alterations necessitated by changes in liturgy\xe2\x80\x9d was unworkably vague:\n\xe2\x80\x9c Would a wider door to permit access by handicapped parishioners comprise a\nliturgical change? Although . . . widening the door does not relate directly to\nthe rites or procedures of worship in the church, it does facilitate the ability of\ndisabled persons to participate in religious services and activities. "Id. at 184\n(quoting prior decision in First Covenant Church v. City o f Seattle, 787 P.2d 1352,\n1360 (Wash. 1990) (en banc)). Though we take no position on the ultimate deci\xc2\xad\nsion in First Covenant,14 we do think that the court\xe2\x80\x99s reasoning on this issue\nis persuasive.\nThere is one additional feature of the historic preservation grant program that\nbears emphasis here. In recent cases upholding the provision of certain benefits\nto religious groups or for religious expression, it has been important to the Court\nthat the benefit in question is generally available to all interested parties, on a\nreligion-neutral and near-automatic basis. See Rosenberger, 515. U.S. at 840-45\n(subsidization of printing costs generally available to all student publications);\nCapitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 757-59, 763\n(1995) (access to public square generally available for all displays); Westside\nCommunity Bd. o f Educ. v. Mergens, 496 U.S. 226, 252 (1990) (O\xe2\x80\x99Connor, J.)\n(access to school facilities available to all student clubs, with students free to\norganize additional clubs). Provision of benefits to religious groups or expression\nin this context, the Court has reasoned, is most unlikely to reflect or convey any\nendorsement of or preference for religion. Id.; see Pinette, 515 U.S. at 763-66.\nHistoric preservation grants, by contrast, do not appear to be generally available\nin the same sense. Properties, including religious properties, qualify for initial\nlisting on the Historic Register only if they meet subjective criteria pertaining\nto architectural and artistic distinction and historical importance. Once listed, prop\xc2\xad\nl4We note that at least one other court has upheld against a Free Exercise Clause challenge the application of\na landmark restriction to prevent a church from erecting a commercial office tower on its property. Si. Bartholomew\'s\nChurch v. City o f New York, 914 F.2d 348 (2d Cir. 1990), cert, denied, 499 U.S. 905 (1991). Because the church\xe2\x80\x99s\nclaim in that case centered on lost revenue rather than on structural integrity, the court did not address the issues\nanalyzed in First Covenant. See First Covenant, 840 P.2d at 181 (distinguishing Si. Bartholomew\xe2\x80\x99s).\n\n271\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nerties are eligible to compete for grants based on additional measures of \xe2\x80\x9c project\nworthiness\xe2\x80\x9d established by the states. Participation by pervasively sectarian\ninstitutions in this kind of competitive grant program raises special concerns,\nabsent in cases like Rosenberger, Pinette, and Mergens, that application of nec\xc2\xad\nessarily subjective criteria may require or reflect governmental judgments about\nthe relative value of religious enterprises.\nWe understand that the Second Circuit\xe2\x80\x99s decision in Lamont v. Woods, 948\nF.2d 825 (2d Cir. 1991), suggests in dicta that the Establishment Clause prohibi\xc2\xad\ntion on direct funding of pervasively sectarian institutions may admit of exceptions\nin certain cases. We do not believe it appropriate, however, to rely on that case\nhere. First, as your draft opinion appears to recognize, the portion of Lamont at\nissue is at best in considerable tension, and at worst inconsistent, with governing\nSupreme Court precedent. Second, even if the standard advanced in Lamont could\nbe defended, we are not convinced that it would apply in this context.\nThe Lamont court suggested that it might approve funding of a pervasively sec\xc2\xad\ntarian institution if (i) the government had a compelling interest in providing\nfunds; and (ii) the court could assure itself that the grant would not in fact advance\nreligion. 948 F.2d at 842. At issue in Lamont was assistance to pervasively sec\xc2\xad\ntarian schools abroad, with the stipulation that no government funds be used to\n\xe2\x80\x9c construct buildings or other facilities intended for worship or religious instruc\xc2\xad\ntion.\xe2\x80\x9d Id. at 828. For present purposes, we will assume with the Lamont court\nthat a pervasively sectarian school\xe2\x80\x99s religious mission might not be advanced by\nfunding of a separate facility, such as a gym, used only for secular purposes.\nWhether or not this is so, however, it simply does not follow that the government\nalso may fund the preservation of facilities that are \xe2\x80\x9c intended for worship or\nreligious instruction\xe2\x80\x9d without impermissibly advancing religion. Moreover, we\nhesitate to assume that a court would find the government\xe2\x80\x99s interest in historic\npreservation sufficiently \xe2\x80\x9c compelling\xe2\x80\x9d to trigger the Lamont analysis in the first\ninstance. Again, we note that the court in First Covenant rejected such a claim:\n\xe2\x80\x9c [T]he City\xe2\x80\x99s interest in preservation of esthetic and historic structures is not\ncompelling and it does not justify the infringement of First Covenant\xe2\x80\x99s right to\nfreely exercise religion. The possible loss of significant architectural elements is\na price we must accept to guarantee the paramount right of religious freedom.\xe2\x80\x9d\n840 P.2d at 185.\nFinally, as noted above, the Court\xe2\x80\x99s decision in Rosenberger does not address\nthe issue posed by your inquiry to us. Rosenberger does, however, acknowledge\nthe Establishment Clause principle against \xe2\x80\x9c direct money payments to sectarian\ninstitutions,\xe2\x80\x9d citing most of the same cases we discuss here. 515 U.S. at 842.\nThe Court goes on to approve assistance to a student religious publication on\nthe grounds that the principle identified is not implicated: the program in question\nneither involves the payment of public funds directly to recipients nor includes\nreligious institutions \xe2\x80\x9c in the usual sense of that term\xe2\x80\x9d among its beneficiaries.\n272\n\n\x0cConstitutionality o f Awarding Historic Preservation Grants to Religious Properties\n\nId. at 842-44. Indeed, the Court places special emphasis on the second factor\n\nas it applies to churches, carefully distinguishing the case before it from one\ninvolving direct or indirect public aid to a church. Id. at 844. Rosenberger, to\nbe sure, emphasized the importance of neutrality in upholding governmental pro\xc2\xad\ngrams against Establishment Clause challenge, clarifying that the Establishment\nClause does not \xe2\x80\x9c justiffy], much less requiref], a refusal to extend free speech\nrights to religious speakers who participate in broad-reaching government pro\xc2\xad\ngrams neutral in design.\xe2\x80\x9d Id. at 839. Nevertheless, we do not believe that at the\npresent time there is authority for a departure, in the context presented here, from\nthe rule against providing funds directly to churches and other pervasively sec\xc2\xad\ntarian institutions.\nAs you know, the question of government aid to religious institutions is a very\ndifficult one. The lines separating permissible from impermissible assistance are\nsometimes hard to discern, and, as Rosenberger indicates, the Supreme Court\xe2\x80\x99s\njurisprudence in this area is still developing. We think, however, that a court\napplying current precedent is most likely to conclude that the direct award of\nhistoric preservation grants to churches and other pervasively sectarian institutions\nviolates the Establishment Clause.\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\n273\n\n\x0c'


b'July 28, 1977\n\n77-44\n\nMEMORANDUM OPINION FOR THE\nCOUNSEL TO THE PRESIDENT\nDisposition of Nixon Memorabilia\n\nThis is in response to your request for our opinion with respect to\nthe proper disposition of the personalized memorabilia of former Presi\xc2\xad\ndent Nixon, which were left in the Old Executive Office Building when\nhe resigned on August 9, 1974. The memorabilia are now in custody of\nthe White House Gift Unit, a part of the White House Office. We\nunderstand that most of these items were acquired with private funds or\nby the Republican National Committee for the use of President Nixon.\nThe remainder are gifts to him by private persons. We further under\xc2\xad\nstand that the Gift Unit\xe2\x80\x99s records allow it to determine the source of\nthe particular items.1 It should be noted at the outset that the materials\ninclude copies of White House documents prepared for President\nNixon. Under \xc2\xa7 101(b) o f the Presidential Recordings and Materials\nPreservation Act, 44 U.S.C. \xc2\xa72107 note, these and any other docu\xc2\xad\nments are historical materials that must be turned over to the Adminis\xc2\xad\ntrator o f General Services. See 44 U.S.C. \xc2\xa72101; H.R. Rep. 93-1507,\n93rd Cong., 2d Sess., at 9.\nThe remainder of the memorabilia, which were purchased with pri\xc2\xad\nvate funds, were originally the property of the purchasers rather than\no f the United States Government.2 Due to the circumstances in which\nthey were found, they have, however, become the property of the\n1 C ertain o f the item s appear to have been purchased in the People\xe2\x80\x99s R epublic o f C hina\ndu rin g President N ixon\'s tour. F o r example, a three-piece tea set was listed in the G ift\nU nit\xe2\x80\x99s inventory. W e are inform ed by the G ift U nit that these are private purchases and\nnot official gifts from the People\xe2\x80\x99s Republic.\nIt should be noted, however, that under the Foreign Gifts and D ecorations A ct o f\n1966, 5 U.S.C. \xc2\xa77342, any gift from a foreign governm ent o r its agent o f m ore than\nminimal value is accepted on b e h alf o f the U nited States and becom es the property o f the\nU nited States. T h e President, m em bers o f his staff, and m em bers o f their families are\nsubject to this statute. 5 U .S.C. \xc2\xa7 7342(a)(1). U nder regulations prom ulgated by the\nD ep artm en t o f State, such gifts a re to be deposited w ith the C hief o f P rotocol. 22 C F R\n\xc2\xa7 3.5(c). G ifts o f minimal value rem ain the pro p erty o f the recipient, but the burden o f\nshow ing m inim al value is on him. 22 C F R \xc2\xa7 3.5(b).\n1 W e d o not have the inform ation necessary to determ ine the respective interests, if\nany, o f th e private purchases.\n\n180\n\n\x0cUnited States under 40 U.S.C. \xc2\xa7484(m). That statute authorizes the\nAdministrator of General Services \xe2\x80\x9cto take possession of abandoned or\nother unclaimed personal property on premises . . . owned by the\nUnited States, to determine when title thereto vested in the United\nStates, and to utilize, transfer, or otherwise dispose of such property.\xe2\x80\x9d\nUnder regulations promulgated by the General Services Administration\n(GSA), title to abandoned or unclaimed property on Government\npremises vests in the United States 30 days after it is found, except that\ntitle reverts to the former owner if he files a claim before the property\nis used, transferred to another agency for use, or sold.3 \xe2\x80\x9cAbandoned or\nunclaimed property\xe2\x80\x9d includes any personal property found on G overn\xc2\xad\nment premises.4 Because the Nixon memorabilia were found more than\n30 days ago, title thereto has vested in the United States, subject any\nclaim by the former owners.\nUnder the GSA regulations, the agency that finds the property is\nresponsible for it and must either use it or report it to GSA as excess\nproperty.5 Once the property is reported, GSA will either furnish it to\nother Federal agencies or dispose of it as surplus.8 The former owner is\nentitled to payment for the reasonable value of any abandoned or\nunclaimed property used by the United States or to the proceeds of any\nsale.7 As the Agency that found the memorabilia, the White House\nOffice is responsible for their custody, for evaluating claims for their\nreturn, and for reporting unusable items to GSA.8\nNeither the statute nor the regulations requires the finding agency to\nnotify possible former owners that the property has been found before\nit is disposed of. However, due process of law requires that potential\nclaimants be given reasonable notice and an opportunity to submit\nclaims before the United States cuts off their right to have unclaimed\n\ns 41 C F R \xc2\xa7 101-43.403.1.\n\xe2\x80\xa241 C F R \xc2\xa7 101-43.401(a).\n\xe2\x80\xa241 C F R \xc2\xa7\xc2\xa7 101-43.403-1, 101-43.403.2.\n\xe2\x80\xa2See 41 C F R \xc2\xa7\xc2\xa7 101-43.301, 101-43.318-1, 101-45.404(b). Sales are conducted by G S A\nand are norm ally by sealed bids, spot bids, o r auction. See, generally, 41 C F R \xc2\xa7\xc2\xa7 10145.301, 101-45.304. A bandoned o r unclaim ed property m ay be sold at any tim e after title\nvests in the United States. 41 C F R \xc2\xa7 101-45.404(b).\n7 40 U.S.C. \xc2\xa7 484(m); 41 C F R \xc2\xa7\xc2\xa7 101-43.403.4, 101-45.401.1. Claim for paym ent must\nbe m ade w ithin 3 years o f the date that title vested in the United States. 40 U.S.C.\n\xc2\xa7 484{m).\n\xe2\x80\xa2 T h e W hite House Office is w ithin the m eaning o f the term \xe2\x80\x9cexecutive agency" as\ndefined in the statute and regulations. See 40 U.S.C. \xc2\xa7 472(a); 41 C F R \xc2\xa7 101-43.001-6.\n\n181\n\n\x0cproperty returned.\xc2\xae See, Security Savings Bank v. California, 263 U.S.\n282, 287 (1923); C f, Mullane v. Central Hanover Trust Co., 339 U.S.\n306, 311-13 (1950). When the names and addresses of potential claim\xc2\xad\nants are known or can be found through ordinary diligence, due proc\xc2\xad\ness requires that they be given actual notice by mail. See, Mullane v.\nCentral Hanover Trust Co., supra, at 315-20.\nThe W hite House Office should therefore notify Mr. Nixon, the\nRepublican National Committee, and any other persons who your rec\xc2\xad\nords indicate may have owned the memorabilia before any action is\ntaken to use or dispose o f them. The notice should state that the\ndescribed items were apparently abandoned on August 9, 1974, that the\nUnited States took title to them under 40 U.S.C. \xc2\xa7 484(m) and 41 CFR\n\xc2\xa7 101-43.403-1 on September 9, 1974, that the former owners can file a\nclaim o f ownership within 30 days,10 and that any property that is not\nclaimed by its former owner within that time will be reported to GSA\nfor disposal as surplus property under 41 CFR \xc2\xa7 101-45.404(b).11\nItems which are not successfully claimed should be reported to GSA\nfor disposal through normal channels.\nL\n\narry\n\nA.\n\nH\n\nammond\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n* Since abandonm ent results from the form er ow ner\xe2\x80\x99s intent to divest him self o f all\ninterest in the property, appropiration by the U nited States o f abandoned p roperty would\nnot appear to be a taking of a p ro p e rty right. See, generally, United States v. Cowan, 396\nF. 2d 83, 87 (2d C ir. 1968); Nippon Shoshen Kaisha, K.K. v. United States, 238 F. Supp. 55,\n58 (D . Cal. 1964); 1 Am . Jur. 2d \xe2\x80\x9c A bandoned P roperty,\xe2\x80\x9d \xc2\xa7 16, at p. 16. Strictly speaking,\nnotice to the form er ow ner w ould not be constitutionally required. Mullane v. Central\nHanover Trust Co., 339 U.S. 306, 316 (1950). H ow ever, intent to abandon is a question o f\nfact, so th at reasonable notice is required before determ ining w hether p roperty is aban\xc2\xad\ndoned o r m erely unclaimed. Anderson National Bank v. Luckett, 321 U.S. 233, 246 (1944).\nM oreover, failure to respond to personal notice is evidence o f intent to abandon. See 1\nAm . Jur. 2d, supra, \xc2\xa7 16 at pp. 16-17.\n10 T his is an arb itrary figure th a t appears to provide a reasonable time for response.\n11 T h e form for the report is set forth at 41 C F R \xc2\xa7 101-43.311-2.\n\n182\n\n\x0c'