b'O ctober 18, 1977\n\n77-59\n\nMEMORANDUM OPINION FOR THE\nCOUNSEL TO THE PRESIDENT\nMembers of Congress Holding Reserve Commissions\n\nThis responds to your request for our opinion respecting the matter\nof Members of Congress holding commissions as officers in the Armed\nForces Reserves. The m atter originated in a letter from a Member of\nCongress to the President. That letter requests the President to stop the\npractice of allowing Members of Congress who hold reserve commis\xc2\xad\nsions to receive pay, earn retirement credit, or advance in rank while\nserving. The letter alluded to the implicit pressure on the Armed\nForces to prom ote these officers as a source o f impropriety, and stated\nthat the \xe2\x80\x9cprovision of the Constitution preventing Congressmen from\nholding any other office\xe2\x80\x9d has not yet been brought to bear on the\nproblem.\nW e have been informed that your principal concern is whether this\nconstitutional provision, th e Incompatibility Clause,1 requires the Presi\xc2\xad\ndent to take action with respect to the reserve commissions currently\nheld by Members of Congress. It is our opinion that the exclusive\nresponsibility for interpreting and enforcing the Incompatibility Clause\nrests w ith Congress.\nBackground\nWe are informed by the Departm ent of Defense that 25 Members of\nCongress now hold commissions in the reserves: one in the Ready\nReserve, 11 in the Standby Reserve in active status, and 13 in the\nStandby Reserve in inactive status.\n(a) Reserve officers below the rank o f lieutenant colonel or com\xc2\xad\nm ander are appointed by the President alone; those above, with the\nSenate\xe2\x80\x99s advice and consent. All serve at the President\xe2\x80\x99s pleasure.2\n(b) Members of the Ready Reserve are required to attend a minimum\namount o f annual training, for which they receive pay and retirement\n1 A rt. I, \xc2\xa7 6, Cl. 2, quoted infra.\n* 10 U.S.C. \xc2\xa7 593(aMb).\n\n242\n\n\x0ccredits.3 They may be called to active duty for up to 24 months during\na national emergency declared by the President.4\n(c) Members of the Standby Reserve on active status are not required\nto attend training but may voluntarily do so for promotion and retire\xc2\xad\nment credits.5 They may be called to active duty in time of war or\nnational emergency declared by Congress if the Selective Service\nSystem determines that they are available.6 Members on inactive status\ndo not train, do not receive either pay or pension credits, and are\nineligible for promotion.7\n(d) In addition to their other active duty obligations, members of the\nReady and Standby Reserves in active status may be ordered to active\nduty for up to IS days per year at any time.8\nCurrent Department of Defense regulations require Members o f Con\xc2\xad\ngress in the Ready Reserve to be transferred to the Standby Reserve.9\nOnce transferred, they may volunteer for active status in the Standby\nReserve.10 Members who were on inactive status when they entered\nCongress apparently remain there. Thus, at least 12 Members o f Con\xc2\xad\ngress are eligible to earn promotion and retirement credits by voluntary\nparticipation in military training. The others who hold commissions\nderive no formal benefits from them.\nOne attempt was made to end this practice by litigation. In Reservists\nCommittee to Stop the War v. Laird, 323 F. Supp. 833 (D. D.C., 1971),\na ffd without opinion, 495 F. 2d 1075 (D.C. Cir. 1974), the District Court\nheld that a reserve commission was an office under the United States\nwithin the meaning of the Incompatibility Clause and entered a declara\xc2\xad\ntory judgment that a Member of Congress was ineligible to hold a\ncommission during his continuance in office. The Supreme Court re\xc2\xad\nversed on the ground that plaintiffs, as members of the general public,\nlacked standing to sue. It did not reach the merits. Schlesinger v.\nReservists Committee to Stop the War, 418 U.S. 208, 216-27 (1975).\nThe Constitutional Provisions Involved\nArticle I, \xc2\xa7 6, Cl. 2, of the Constitution provides:\nNo Senator or Representative shall, during the time for which he\nwas elected, be appointed to any Civil Office under the Authority\nof the United States, which shall have been created, or the Emolu\xc2\xad\n\xe2\x80\xa2 See 10 U.S.C. \xc2\xa7\xc2\xa7 1331-32; 37 U.S.C. \xc2\xa7\xc2\xa7 204(aX2), 206(a).\n4 10 U.S.C. \xc2\xa7\xc2\xa7 673(a), 674(a). Members o f the Ready Reserve may also be called to\nactive duty for the duration of any war or national emergency declared by Congress. 10\nU.S.C. \xc2\xa7 672(a).\n\xe2\x80\xa2 10 U.S.C. \xc2\xa7 273(a); 32 CFR \xc2\xa7 102.3(c); D O D Dir. 1215.6, para. V. C. 2.a.(4).\n\xe2\x80\xa2 10 U.S.C. \xc2\xa7\xc2\xa7 672(a), 674(a).\n\xe2\x80\x99 See 10 U.S.C. \xc2\xa7 273(c); 32 C FR \xc2\xa7 136.3(b)(1); D O D Dir. 1215.6, para. V.C. 2.b.\n\xe2\x80\xa2 10 U.S.C. \xc2\xa7 672(b). The statue does not apply to reserves on inactive status, but\nDepartment of Defense regulations allow an inactive reservist to be restored to active\nstatus and called up. See 32 CFR \xc2\xa7 136.3(bX3).\n\xe2\x80\xa2 32 C FR \xc2\xa7 125.4(cX2).\n32 C FR \xc2\xa7 102.3(0.\n\n243\n\n\x0cments whereof shall have been increased during such time; and no\nPerson holding any Office under the United States shall be a\nMember of either House during his Continuance in Office.\nArticle I, \xc2\xa7 5, Cl. 1, provides:\nEach House shall be the Judge of the Elections, Returns and\nQualifications of its own members.\nA rticle II, \xc2\xa7 2, Cl. 2, provides:\nHe [the President] shall nominate, and by and with the Advice and\nConsent of the Senate, shall appoint Ambassadors, other public\nMinisters and Consuls, Judges of the Supreme Court, and all other\nOfficers of the United States, whose Appointments are not herein\notherwise provided for, and which shall be established by Law; but\nthe Congress may by Law vest the Appointment of such inferior\nOfficers, as they think proper, in the President alone, in the Courts\nof Law, or in the Heads of Departments.\nDiscussion\nIt should be noted that the first portion of Article I, \xc2\xa7 6, Cl. 2,\nrestricts the President\xe2\x80\x99s pow er to appoint Members o f Congress to civil\noffices, while the second portion of the clause declares that no person\nw ho holds any office shall be a Member o f Congress while he or she\nretains that office. It has long been settled within the executive branch\nthat the President, in exercising his powers of appointment under Arti\xc2\xad\ncle II, \xc2\xa7 2, Cl. 2, will not make an appointment in violation of the first\nportion of the clause. See, e.g., 42 Op. Atty. Gen. No. 36; 17 Op. Atty.\nGen. 365 (1882). On the other hand, as far as we know, the President\nhas never undertaken to enforce the second portion of the clause,\nwhich disqualifies individuals who have already been appointed from\nassuming or retaining seats in Congress.11\nIn* his brief to the Supreme Court in the Reservists Committee Case,\nthe Solicitor General argued that \xe2\x80\x9c [b]y its terms, history, and long\nCongressional construction, the clause constitutes a qualification for\nmembership in Congress\xe2\x80\x94 no one occupying such an office may serve\nas a Senator or Representative. . . .\xe2\x80\x9d And, he continued, the determi\xc2\xad\nnation o f w hether the clause is violated is \xe2\x80\x9ca determination which\nunder Article I, \xc2\xa7 5, clause 1 of the Constitution, only the Congress can\nmake.\xe2\x80\x9d 12\n11 In 40 Op. A tty. Gen. 301 (1943), A ttorney General Biddle advised President Roose\xc2\xad\nvelt that the pow er to enforce A rt. I, \xc2\xa7 6, Cl. 2, rested w ith Congress and that the House\no f Representatives had in the past disqualified Members w ho accepted military commis\xc2\xad\nsions for active service. He concluded that it would be a \xe2\x80\x9csound and reasonable policy\xe2\x80\x9d\nfor the President to avoid any possible conflict with the clause by not permitting\nMembers o f Congress to serve o n active duty. We do not know what action, if any, the\nPresident took in response to the opinion.\n12 Brief for Petitioner at 8, O.T. 1973, No. 72-1188.\n\n244\n\n\x0cMoreover, we suggest that it would be undesirable for the President\nhimself to attempt to confront the problem. If he were to inform the\nCongressman that in his view the holding o f reserve commissions by\nMembers of Congress did violate Article I, \xc2\xa7 6, clause 2, that determi\xc2\xad\nnation certainly would not bind the Congress. Conversely, if he stated\nthat the practice was permitted by the Constitution, Congress could\nenforce the clause against its Members notwithstanding.13\nL eon U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x9c The Solicitor General argued for the executive branch at length that a commission in\nthe Armed Forces reserves is not an \xe2\x80\x9cOffice under the United States\xe2\x80\x9d within the meaning\nof Article I, \xc2\xa7 6, Clause 2. The details of the argument appear at pages 31-42 o f the brief.\nAs we have pointed out above, the Supreme Court did not reach the question.\n\n245\n\n\x0c'


b'White House Communications Agency Expenses Incurred\non Political or Personal Travel by the President\nW h e n th e W h ite H o u s e C o m m u n ic a tio n s A g e n c y a c c o m p a n ie s th e P re s id e n t o n tra v e l, it m a y\n(a n d s h o u ld ) u se a p p ro p ria te d fu n d s to p a y fo r a n y e x p e n s e in c u rre d f o r a c tiv itie s in f u r th e r\xc2\xad\na n c e o f its o ffic ia l m issio n to p ro v id e a c o n tin u o u s c o m m u n ic a tio n s c a p a b ility to th e P re s id e n t\na n d h is a d v is o r s , re g a rd le ss o f w h e th e r the travel is fo r o fficial, political, o r perso n al p u rp o se s.\n\nT h e W h ite H o u s e C o m m u n ic a tio n s A g e n c y m a y u s e a p p ro p ria te d fu n d s to p a y fo r e x p e n s e s\nin c u r r e d in c o n n e c tio n with th e p ro v is io n o f c o m m u n ic a tio n s fa c ilitie s a n d s e rv ic e s f o r the\no f f ic ia l u s e o f th e P resid e n t a n d h is s ta ff d u rin g P re s id e n tia l travel.\nA p p r o p r ia te d fu n d s m a y be e x p e n d e d to fa c ilita te o fficial, b u t no t p o litic a l, c o m m u n ic a tio n\nb e tw e e n th e P r e s id e n t and the p re s s.\n\nOctober 22, 1990\nM e m o r a n d u m O p in io n f o r t h e 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 for our opinion on which\nexpenses of the White House Communications Agency (\xe2\x80\x9cWHCA\xe2\x80\x9d), if any,\nmay be paid from appropriated funds when the President travels for political\nor other non-official purposes. We conclude for the reasons set forth below\nthat virtually all of the activities which you have informed us that WHCA\nundertakes in connection with travel by the President are in furtherance of\nWHCA\xe2\x80\x99s official mission, and thus may be - indeed, should be \xe2\x80\x94 paid for\nout of appropriated monies, whether the President\xe2\x80\x99s trip is official, political,\nor personal in nature.1\nI.\nWHCA is a component o f the White House Military Office, responsible\nfor providing continuous communications services to the President, his se\xc2\xad\nnior staff, and the Secret Service, both at the White House and during\npresidential travel, domestic or international. Your memorandum of March\n\n1 W e a d d re sse d in tw o p rio r opinions the general q u e stio n o f the allocation o f expenses for political\ntrip s tak en by th e P resid e n t. See Payment o f Expenses Associated with Travel by the President and Vice\nPresident, 6 O p. O .L C . 214 (1982) (\xe2\x80\x9c O lso n M em o ran d u m \xe2\x80\x9d ); M em orandum fo r R obert J. L ip sh u tz,\nC o u n se l to th e P resid e n t, from John M . H arm on, A cting A ssistant A ttorney G en eral, O ffice o f Legal\nC o u n se l (M ar. 15, 1977) (\xe2\x80\x9c Harmon M em o ran d u m ").\n\n144\n\n\x0c28, 1990, details the principal functions performed by WHCA in connection\nwith a routine presidential trip.2 Approximately one week prior to a presi\xc2\xad\ndential visit, WHCA travels to the site, establishes staff offices, and installs\ntelephone lines, satellite terminals, and other equipment necessary for con\xc2\xad\ntinuous communications capability. These facilities and equipment are then\nused during the President\xe2\x80\x99s trip for communications between the President,\nhis senior advisers, and the Secret Service, and the other departments and\nagencies of government and the general public. Staff telephones are gener\xc2\xad\nally provided \xe2\x80\x9cto permit staff and trip coordination.\xe2\x80\x9d Nelson Memorandum\nat 2. The White House staff has been advised repeatedly, however, that it\nmay not use WHCA communications equipment \xe2\x80\x9cfor direct political pur\xc2\xad\nposes such as campaign fundraising and crowd-building.\xe2\x80\x9d Id.\nWHCA, as one of its communications functions, also arranges for the\nPresident\xe2\x80\x99s access to and communication with the press. One or two WHCA\nofficers \xe2\x80\x9cprovide services used in routine press advance work\xe2\x80\x9d for each site.\nId. WHCA establishes an emergency press briefing center at each site for\nuse if required.\nFor official presidential events, WHCA provides lighting and sound equip\xc2\xad\nment. At political events, these services are procured from private sources,\nwith WHCA merely providing technical advice. At all events, \xe2\x80\x9cWHCA\ncontrols the \xe2\x80\x98feed\xe2\x80\x99 to the sound system and shuts down power to the micro\xc2\xad\nphones at the appropriate conclusion of remarks.\xe2\x80\x9d Id. WHCA furnishes a\nteleprompter whenever required, regardless of the nature of the event.\nCertain WHCA communications functions also serve a security purpose.\nFor instance, WHCA provies a bullet-proof podium for presidential events.\nWHCA also \xe2\x80\x9csets up emergency public address system speakers at each site,\nprimarily for purposes of crowd control in case of an emergency.\xe2\x80\x9d M 3\n\nII.\nThe legal principles governing payment of WHCA expenses are set forth\nin the Olson Memorandum. In that memorandum, we identified two \xe2\x80\x9cmajor\nprinciples\xe2\x80\x9d of appropriations law applicable in this and similar contexts.\nFirst, \xe2\x80\x9cappropriated funds may be spent only for the purposes for which they\nhave been appropriated.\xe2\x80\x9d Olson Memorandum at 215. Second, \xe2\x80\x9cin general,\nofficial activities should be paid for only from funds appropriated for such\n\n2 See M em orandum fo r M ike L u ttig , D eputy A ssistan t A ttorney G eneral, O ffice o f Legal C ounsel, from\nF red erick D. N elson, A ssociate C o u n sel to the P resident (M ar. 28, 1990) (\xe2\x80\x9c N elson M em orandum \xe2\x80\x9d ).\nJ W e un d erstan d th a t the W H C A fu n ctio n s d e ta iled in th is m em o ran d um m ay not be e x h a u stiv e a n d\nth a t you m ay need to retu rn to th is O ffice fo r a d v ice on th e p ro p e r tre a tm e n t o f ex p en se s in cu rred in\nc o n n e c tio n w ith fu n c tio n s not id en tified herein.\n\n145\n\n\x0cpurposes, unless Congress has authorized the support of such activities by\nother means.\xe2\x80\x9d Id. at 216.4\nOver the years, this Office has considered against the backdrop of these\ntwin principles a variety of issues arising out of presidential trips on which\npolitical business is conducted.5 We have consistently concluded with respect\nto these so-called \xe2\x80\x9cmixed\xe2\x80\x9d trips that while political activities must be paid\nfor by political organizations,6 appropriated funds must be used to pay ex\xc2\xad\npenses incurred in connection with the performance of official duties during\npresidential travel, regardless of the purpose of the travel. We have specifi\xc2\xad\ncally noted that certain individuals are required in the performance of their\nofficial duties to accompany the President whenever he travels, and that\nexpenses of such individuals should be paid from official sources:\n[T]here are some persons whose official duties require them\nto be with the President, whether or not the President himself\nis on official business. . . . A similar group would exist for the\nVice President. Expenses incurred during travel with the Presi\xc2\xad\ndent or Vice President by this group of individuals should be\nconsidered official regardless of the character of the event that\nmay be involved in a given trip.\nId. at 217-18 (footnotes omitted); see also id. at 218, 221.\n\nThe President\xe2\x80\x99s military aide and doctor, for example, accompany the\nPresident on all of his travel, but we have said that their expenses should be\npaid from appropriated monies. See id. at 217-18. The official nature of the\nresponsibilities performed by these persons does not change depending upon\nwhether the trip is official, political, or personal. All of these persons are,\nwhen performing the duties described, engaged in the official business of the\nUnited States, and thus their expenses must be paid from public funds.\nWHCA is an obvious example of a group that, like the military aide and\nthe President\xe2\x80\x99s doctor, performs official responsibilities for the President\nwhen he travels, regardless of whether the travel is official, personal, or\npolitical. We have never squarely addressed whether expenses incurred in\nthe performance of these responsibilities may be paid from appropriated\n\n4T h e first p rin c ip le d e riv e s from th e statutory re q u ire m e n ts o f 31 U .S .C . \xc2\xa7 1301(a). T he second p rin \xc2\xad\nc ip le , u n d e r w h ich th e executive b ranch m ay not au g m en t its appropriations, is asserted by the C o m p tro l\xc2\xad\nle r G e n e ra l to be a c o ro lla ry o f C o n g ress\xe2\x80\x99 co n stitu tio n al p o w e r to co n tro l the T reasury. See U .S . G eneral\nA c co u n tin g O ffice, O ffice o f G eneral C o u n sel, P rinciples o f Federal Appropriations Law 5-62 to 5-63\n(1 st ed. 1982) (e x p la in in g the non-augm entation p rin cip le).\n5See, e.g.. M em o ran d u m for Fred F. F ield in g , C ounsel to the President, from T h eo d o re B. O lson, A ssis\xc2\xad\ntan t A tto rn e y G en eral, O ffice of Legal C o u n sel (Apr. 21, 1982); M em orandum for the H on. M yer Feldm an,\nS p e c ia l C o u n se l to th e President, fro m N o rb ert A. S ch lei, A ssistant A ttorney G en eral, O ffice o f Legal\nC o u n se l (A u g . 2 0 , 1964).\n6See, e.g., M em o ran d u m for the H o n . Lloyd N . C u tler, C ounsel to the P resident, from L eon U lm an,\nD e p u ty A ssista n t A tto rn e y General, O ffice o f L egal C o u n se l (Sept. 17, 1980).\n\n146\n\n\x0cfunds when the travel is for personal or political purposes, but we have\nalways assumed that they should be. For example, we observed in 1977 that,\n[n]o reimbursement to the Government should be required,\neven on non-official travel, for accompanying staff and sup\xc2\xad\nport personnel required for the President and Vice President\nto perform their official duties. This would include the Secret\nService, military aides and support personnel, communications\npersonnel, and whatever other staff the President and Vice\nPresident require for advice and assistance in transacting the\npublic business.\nHarmon Memorandum at 9 (emphasis added).7 Now that we are directly\nconfronted with the question, we conclude that WHCA may \xe2\x80\x94 and indeed\nshould \xe2\x80\x94 use appropriated funds to pay for any expense incurred for activi\xc2\xad\nties in furtherance of its official mission when it accompanies the President\non travel for either personal or political purposes.\nOur conclusion that these expenses should be paid from appropriated\nfunds is consistent with the treatment of such expenses under the Federal\nElection Campaign Act (\xe2\x80\x9cFECA\xe2\x80\x9d), 2 U.S.C. \xc2\xa7\xc2\xa7 431-456 and the Presidential\nElection Campaign Fund Act (\xe2\x80\x9cPECFA\xe2\x80\x9d), 26 U.S.C. \xc2\xa7\xc2\xa7 9001-9013.8 Generally,\nSecret Service, WHCA, or other official expenses are not campaign \xe2\x80\x9cexpendi\xc2\xad\ntures\xe2\x80\x9d under the FECA or \xe2\x80\x9cqualified campaign expenses\xe2\x80\x9d under the PECFA.9\nUnder the regulations promulgated pursuant to the FECA, if a candidate\nfor federal office, other than a candidate for President or Vice President who\nreceives federal funds under the PECFA, \xe2\x80\x9cuses government conveyance or\naccommodations for travel which is campaign-related,\xe2\x80\x9d then the candidate\nmust report as an \xe2\x80\x9cexpenditure\xe2\x80\x9d under the FECA \xe2\x80\x9cthe rate for comparable\n\n\xe2\x80\x99 See also H arm on M em o ran d u m at 15-16:\nT h e P resid en t and Vice P resid en t should be p ro v id ed all staff and o th e r a ssistan c e as\nreq u ired fo r su p p o rt o f the official responsibilities o f th o se officers regardless o f location.\nT h is w o u ld o rd in a rily include . . . communications facilities fo r control and administration\n\no f the armed fo rces and other agencies o f the Government[.]\n(E m phasis added).\n\xe2\x80\x99 T he H arm on M em o ran d u m did not reference the Federal E lectio n C o m m ission (\xe2\x80\x9c FE C \xe2\x80\x9d ) re g u la tio n s in\nforce at the tim e. See H arm on M em orandum at 20-21. The O lson M em orandum exp licitly d e clin ed to\na ddress FE C rules ap p licab le d uring federal elections. O lson M em orandum a t 214.\n\xe2\x80\x99 T he treatm en t o f W H C A expenses under the FE C A o r the PECFA is not n ecessarily d isp o sitiv e o f\nw h eth er such e x p en ses m ay be paid from appropriations. W hile it likely w ill often be the case th a t\no fficial e xp en ses p ro p erly payable from appropriations w ould not be cam paign "ex p en d itu re s\xe2\x80\x9d o r \xe2\x80\x9c q u a li\xc2\xad\nfied c am paig n e x p en se s\xe2\x80\x9d fo r the purposes o f these Acts, and conversely that expenses that are \xe2\x80\x9ce x p e n \xc2\xad\nd itu res\xe2\x80\x9d o r \xe2\x80\x9c q u alified cam p aig n e x p en ses" w ithin th e m eaning o f those A cts w ould not be pay ab le fro m\na p p ropriatio n s, th is n e ed not be true. See, e.g.. 11 C F.R. \xc2\xa7 900 4 .6 (1981) (S ecret S e rv ic e tra n sp o rta \xc2\xad\ntion paid by an au th o riz e d com m ittee \xe2\x80\x9c shall be qualified cam paign ex p en ses,\xe2\x80\x9d a lthough to the ex te n t\nthat the g ov ern m en t reim b u rses such expenses, they are not \xe2\x80\x9c ex p en d itu res" under the F E C A ), am ended\nby 4 8 Fed. R eg. 3 1 ,8 2 2 , 31,822 (1983) (deleting language referrin g to S ecret Service e x penses); see\ndiscussion infra p. 150.\n\n147\n\n\x0ccommercial conveyance or accommodation.\xe2\x80\x9d 11 C.F.R. \xc2\xa7 106.3(e) (1981).10\nThe regulations make clear, however, that expenses associated with staff and\nequipment authorized by law or necessary for national security are not \xe2\x80\x9cex\xc2\xad\npenditures\xe2\x80\x9d reportable under this section:\nIn the case o f a candidate authorized by law or required by\nnational security to be accompanied by staff and equipment,\nthe allocable expenditures are the costs of facilities sufficient\nto accommodate the party, less authorized or required person\xc2\xad\nnel and equipment.\nId. (emphasis added). Accordingly, the expenses associated with such au\xc2\xad\n\nthorized or required personnel are not included in calculating the amount\nthat must be reported as an \xe2\x80\x9cexpenditure\xe2\x80\x9d under this regulation.\nA sim ilar rule applies to travel of the President when, as a participating\ncandidate under the PECFA, he campaigns for his own renomination or reelection or when he is campaigning on behalf of other federal candidates.\nThe regulation governing presidential campaign travel during the general\npresidential election campaign11 states that\n[i]f any individual, including a candidate, uses government\nconveyance or accommodations paid for by a government en\xc2\xad\ntity f o r campaign related travel, the candidate\xe2\x80\x99s authorized\ncom m ittee shall pay the appropriate government entity an\namount [calculated according to a specified formula],\n11 C.F.R. \xc2\xa7 9004.7(b)(5) (1981) (emphasis added).12 Any such repayable\nexpenses are defined as \xe2\x80\x9cqualified campaign expenses\xe2\x80\x9d under the PECFA\nand must be reported as \xe2\x80\x9cexpenditures\xe2\x80\x9d under the FECA. Id. \xc2\xa7 9004.7(a).\nHowever, an individual\xe2\x80\x99s travel is a campaign expenditure only if that\nin d ivid u a l\xe2\x80\x99s travel is \xe2\x80\x9ccampaign-related.\xe2\x80\x9d 13 Because personnel, like Secret\nService agents and WHCA employees, accompany the President for official,\nl0B y its te rm s, th is re g u la tio n only a p p lie s to the P resid en t w hen he is a candidate and is not p a rtic ip a t\xc2\xad\nin g in th e p u b lic fin a n c in g system o f th e PE C FA . See 11 C .F R . \xc2\xa7 106.3(a) (1981).\n11A n id e n tic a l p ro v isio n governs p re sid en tial travel d u rin g the p rim aries. Id. \xc2\xa7 9034.7(b)(5).\n12T h e re im b u rse m e n t fo rm u la specifies th at the c an d id ate m ust pay an am ount equal to:\n(i) T h e first c la ss com m ercial a ir fare plus the c o st o f o th e r services, in the case o f travel\nto a c ity s erv ed by a regularly sch e d u le d com m ercial service; or\n(ii) T h e c o m m e rc ial charter rate p lu s the c o st o f o th e r services, in the case o f travel to a\nc ity n o t serv ed by a regularly sch e d u le d com m ercial service.\n11 C .F .R . \xc2\xa7 9 0 3 4 .7 (b )(5 ) (1983).\n13 T h e re g u la tio n re c o g n iz e s that w h e th e r o r not an in d iv id u a l\xe2\x80\x99s tra v e l w ith the P resid e n t is \xe2\x80\x9c cam p a ig n -re la te d " is n o t d e p en d e n t upon th e p u rp o ses fo r w h ic h the P resid e n t is tra v e lin g , b u t u p o n the\np u rp o s e s o f th e p a rtic u la r in d iv id u al\xe2\x80\x99s tra v e l. S u b sectio n (b )(4 ) states thAt, \xe2\x80\x9c [f]o r trip s by g o v e rn m e n t\nc o n v e y a n c e o r b y c h a p te r,\xe2\x80\x9d the can d id ate m u st m ake a v a ila b le to the F E C \xe2\x80\x9ca list o f all p a sse n g ers on\ns u c h trip , along with a designation o f w hich passengers are and which are not campaign related.\xe2\x80\x9d 11\nC .F .R . \xc2\xa7 9 0 0 4 .7 (b )(4 ) (1 9 8 1 ) (em phasis a d d ed ). See also id \xc2\xa7 9 0 3 4 .7 (b )(4 ) (1981) (id en tical p ro v isio n\nf o r p rim a ry c a m p a ig n tra v e l).\n\n148\n\n\x0cgovernmental purposes, their travel is not \xe2\x80\x9ccampaign-related,\xe2\x80\x9d and therefore\nis not a reimbursable \xe2\x80\x9cexpenditure\xe2\x80\x9d or \xe2\x80\x9cqualified campaign expense\xe2\x80\x9d under\nthe regulation.14\nSimilarly, under the regulation applicable to individuals, including the\nPresident, who campaign on behalf of candidates for federal office, expenses\nfor Secret Service protection and other such personnel who travel with that\nindividual in the performance of their official duties would not be campaign\n\xe2\x80\x9cexpenditures\xe2\x80\x9d under the FECA. The regulation states:\n[w]here an individual, other than a candidate, conducts campaign-related activities on a trip, the portion of the trip attributed\nto each candidate shall be allocated on a reasonable basis.\n11 C.F.R. \xc2\xa7 106.3(c)(1) (1981) (emphasis added). This regulation requires\nan individual campaigning on behalf of another \xe2\x80\x9cto allocate their mixed\ncampaign/non-campaign travel expenses on a reasonable basis.\xe2\x80\x9d 1 Federal\nElection Campaign Financing Guide (CCH) f 807, at 1537-8 (1989) (repro\xc2\xad\nducing FEC \xe2\x80\x9cExplanation and Justification of Part 106\xe2\x80\x9d); Federal Election\nCommission, Campaign Guide fo r Congressional Candidates and Commit\xc2\xad\ntees 21 (1988) (same comment). Under this regulation, the expenses of\nSecret Service or other such personnel clearly would not be considered to be\nan allocable portion of the President\xe2\x80\x99s total expenditures in making the cam\xc2\xad\npaign trip. Since expenses for Secret Service and other such personnel are\nnot campaign \xe2\x80\x9cexpenditures\xe2\x80\x9d under the FECA when a federal candidate cam\xc2\xad\npaigns for him self or herself, considering such costs to be noncampaign\nexpenses when such an individual campaigns for someone else certainly\nallocates the campaign and noncampaign costs \xe2\x80\x9con a reasonable basis.\xe2\x80\x9d Fur\xc2\xad\nthermore. applying the regulation directly to each individual member of the\nPresident\xe2\x80\x99s support staff would also lead to the conclusion that no portion of\n\n14 A n e a rlie r v e rsio n o f th is reg u latio n included an ex p lic it ex em p tio n fo r p e rso n n el a u th o riz e d by\nlaw o r re q u ire d by n a tio n a l secu rity to acco m p an y the can d id ate. See 11 C .F .R . \xc2\xa7 9 0 0 4 .7 (b )(3 )(iii)\n(1981) ("In the case o f can d id ate s a u th o rized by law o r required b y n ational sec u rity to b e a c c o m p a \xc2\xad\nn ied by staff, such sta ff sh all not be c o n sid e re d to be trav ellin g fo r c am paign p u rp o se s u n le ss such s ta ff\nen g ag e s in cam p aig n a c tiv ity d u rin g a trip ."). T h e re is no in d icatio n that, by d e le tin g th is s e n te n c e in\nthe la te r re g u la tio n , th e FE C in ten d ed fo r such e x p en ses to be c o n sid e re d c am p aig n \xe2\x80\x9c e x p e n d itu re s \xe2\x80\x9d\nu n d e r the FE C A . T h e c h an g e , w hich w as m ade sh o rtly after th e FE C issued co m p a ra b le re g u la tio n s\ng o v e rn in g p re sid en tial p rim ary c am p aig n s, w as m ade p rim arily to co n fo rm sec tio n 9 0 0 4 .7 to the new\nprim ary re g u la tio n s. 4 8 F ed . R eg. 3 1 ,8 2 2 , 31,822 (1 9 8 3 ). As e x p la in ed fu rth e r below , see infra p.\nISO, the prim ary c a m p aig n reg u latio n s d e le ted refe re n c es to S ecret Service and o th e r s u c h p erso n n el\nb e ca u se the p ay m en t o f th e ir e x p en ses w as g en erally ad d ressed u n d e r the fe d e ra l travel re g u la tio n s.\nT h a t the F E C did not in te n d d eletio n o f th e referen ce to su ch p e rso n n el in sec tio n 9 0 04.7 o r its prim ary\ne le c tio n c o u n te rp a rt, s e c tio n 90 3 4.7, to affect the tre a tm e n t o f S e c re t S erv ice an d o th e r s u c h e x p en se s\nis e v id e n ce d by the fact th a t the F E C , in its e x p la n ato ry c o m m en ts, did no t iden tify th e ch an g e as\ns ig n ific a n t; the FE C id e n tifie d only \xe2\x80\x9cone sig n ifican t c h an g e ,\xe2\x80\x9d n am ely that c an d id ate s u s in g g o v e rn \xc2\xad\nm e n t co n v ey an ce w ere re q u ire d to pay a h ig h er rate than un d er the p revious re g u la tio n . 4 8 Fed. R eg.\n5 2 2 4 , 5229 (1 9 8 3 ) (e m p h a sis ad d ed ) (d iscu ssin g sectio n 9 0 3 4 .7 ); see also 4 8 Fed. R eg . a t 3 1 ,8 2 4\n(id e n tic a l co m m en t on sec tio n 90 0 4 .7 ).\n\n149\n\n\x0cthe cost of the travel of Secret Service or other such personnel need be\nallocated to any candidate as an expenditure. Even though they may accom\xc2\xad\npany the President on a campaign trip he makes on behalf o f various federal\ncandidates, Secret Service and similar personnel do not \xe2\x80\x9cconduct[] cam\xc2\xad\np a ig n -re la te d a c tiv itie s\xe2\x80\x9d w hen they m erely perform th eir o fficial\nresponsibilities.15\nSecret Service and other such personnel expenses thus have consistently\nbeen considered not to be \xe2\x80\x9cexpenditures\xe2\x80\x9d under the FECA, and generally\nhave been considered not to be \xe2\x80\x9cqualified campaign expenses\xe2\x80\x9d under the\nPECFA. We are aware of only one regulation under which expenses for\nSecret Service agents and other such personnel would have been considered\nto be \xe2\x80\x9cqualified campaign expenses\xe2\x80\x9d under the PECFA. Under a previous\nversion o f 11 C.F.R. \xc2\xa7 9004.6 (1981), expenses incurred by an authorized\ncom m ittee of a participating presidential candidate for transportation and\nground services provided to \xe2\x80\x9c Secret Service or other staff authorized by law\nor required by national security\xe2\x80\x9d were considered to be \xe2\x80\x9cqualified campaign\nexpenses.\xe2\x80\x9d See 11 C.F.R. \xc2\xa7 9004.6(a) (1981). This regulation, however,\nsimply allowed Secret Service travel and similar expenses, when incurred by\nthe authorized committee, to be paid from federal funds received under the\nPECFA; it did not require committees to treat these expenses as campaign\n\xe2\x80\x9cexpenditures\xe2\x80\x9d under the FECA. The regulation, which permitted an autho\xc2\xad\nrized com m ittee to receive reimbursement for such expenses up to an\nestablished limit, id. required the committee to report such reimbursements\nonly as \xe2\x80\x9c[o]ffsets to operating expenditures\xe2\x80\x9d under 11 C.F.R. \xc2\xa7 104.3(a)(3)(ix)\n(1981). See id. \xc2\xa7 9004.6(c). The FEC comments explaining this provision\nmade clear that these offsets were not \xe2\x80\x9cexpenditures\xe2\x80\x9d for purposes of the\npresidential spending limit in the FECA, 2 U.S.C. \xc2\xa7 441a(b). See 45 Fed.\nReg. 43,371, 43,376 (1980) (\xe2\x80\x9cPursuant to Part 104, the reimbursements will\nbe subtracted from the com m ittee\xe2\x80\x99s total expenditures to produce the\ncom m ittee\xe2\x80\x99s net expenditures. It is the net expenditures which will count\nagainst the candidate\xe2\x80\x99s expenditure limit.\xe2\x80\x9d).\nThe classification of such costs as \xe2\x80\x9cqualified campaign expenses\xe2\x80\x9d was of\nlittle practical significance. The regulation by its terms did not apply where\nthe governm ent provided the transportation for these individuals and where,\nunder section 9004.7(b)(5), the committee incurred no costs for such trans\xc2\xad\nportation. It applied only when \xe2\x80\x9can authorized committee incur[red] expenses\nfor transportation made available [to such persons],\xe2\x80\x9d 11 C.F.R. \xc2\xa7 9004.6(a)\n(1981) (emphasis added). However, when a committee had paid the travel\nexpenses of Secret Service agents or other such personnel and the regulation\ntherefore applied, the committee\xe2\x80\x99s expenses were generally reimbursable un\xc2\xad\nder regulations providing for government reimbursement of employees who\ntravel on official business. See 41 C.F.R. ch. 301 (1990). Accordingly, in\n15 O f c o u rs e , w ere su ch personnel to p erform any cam p aig n function distinct from th eir official fu n c \xc2\xad\ntio n s, th e y w o u ld be req u ired to a llo c a te th eir m ix ed c am p aign/non-cam paign travel e x p en se s on a\nre a so n a b le b asis.\n\n150\n\n\x0cmost situations, the regulation was either inapplicable or irrelevant. It was\napparently for this reason that the FEC deleted as superfluous the reference\nto such personnel when it revised this regulation.16 Because of this deletion,\nsuch expenses would not in any event be considered \xe2\x80\x9cqualified campaign\nexpenses\xe2\x80\x9d under the current regulations. Furthermore, and more significant,\nnothing in the current or previous FEC regulations governing presidential\ncampaign expenses would require that expenses for Secret Service and other\nsuch personnel be classified as \xe2\x80\x9cexpenditures\xe2\x80\x9d under the FECA.\nIn sum, we adhere to the conclusion of the Olson and Harmon Memo\xc2\xad\nranda that expenses incurred for official purposes during travel with the\nPresident should be paid from appropriated funds, even if the purpose for\nthe President\xe2\x80\x99s trip is not official. Accordingly, expenses incurred by WHCA\nfor services in furtherance of its official mission that are performed in con\xc2\xad\nnection with presidential travel should be paid from appropriated funds.\n\nIII.\nWe now turn to the question of whether the particular WHCA functions\ndescribed in your memorandum further the agency\xe2\x80\x99s official mission. The\nresolution of this question ultimately turns on whether the funds used to pay\nWHCA\xe2\x80\x99s expenses are being used for the purposes for which they were\nprovided by Congress.\nCongress has not detailed the purposes for which funds appropriated for\nWHCA may be used.17 WHCA officials therefore have a substantial mea\xc2\xad\nsure of discretion in defining the precise scope of the agency\xe2\x80\x99s official mission,\nand whether a given expenditure is an authorized use of the funds appropri\xc2\xad\nated by Congress is in the first instance a question for those officials. An\nexpenditure, however, of course must be reasonably related to the official\nmission of the agency.\nThe primary responsibilities of WHCA during presidential travel are to\ninstall, maintain, and operate the communications facilities and equipment\nthat permit the President and his entourage to have continuous communica\xc2\xad\ntions capabilities, and the lion\xe2\x80\x99s share of expenses incurred by WHCA during\n16T h e referen ce w as d eleted from section 900 4 .6 in o rd e r to co n fo rm to the co rresp o n d in g prim ary\ncam paign reg u latio n , 11 C.F.R . \xc2\xa7 9034 6. See 48 Fed R eg. 31,822 (1983). T h e FEC ex p la in ed th a t it\nd e le ted the referen ce to travel expenses o f Secret S erv ice and o th e r such personnel from the prim ary\nc am p aig n reg u latio n because "o th e r g o v ernm ent reg u latio n s g o v ern p aym ent for those e x p e n d itu re s.\xe2\x80\x9d\n48 F ed R eg. at 5 2 2 9 (discussing section 9034.6); 48 Fed. Reg. at 3 1,824 (identical co m m en t on sectio n\n9004.6).\n17You have in fo rm ed us that W H CA \xe2\x80\x99s expenses are paid from accounts o f the D efense C o m m u n icatio n s\nA gency (\xe2\x80\x9c D C A \xe2\x80\x9d ), o n e o f the \xe2\x80\x9c D efense A gencies" included in the an n u al D epartm ent o f D e fe n se a p p ro \xc2\xad\npria tio n s le g islatio n . See generally N ational D efense A u th o rizatio n A ct fo r F iscal Years 1990 and 1991,\nP ub. L. N o. 101-189, \xc2\xa7\xc2\xa7 104, 201, 301, 2 4 0 1 -2422, 103 Stat. 1352, 1370, 1393, 1407, 1639-44 (19 8 9 )\n(th e \xe2\x80\x9c A uth o rizatio n A ct\xe2\x80\x9d ); D epartm ent o f D efense A p p ro p riatio n s A ct, 1990, Pub. L. N o. 101-165, 103\nS tat. 1112, 1116, 1124, 1126 (1989) (the \xe2\x80\x9c A pp ro p riatio n s A ct\xe2\x80\x9d). T he A uthorization A ct and the A p p ro \xc2\xad\np ria tio n s A ct d o not provide specific d irectio n s co n cern in g the use o f appropriated funds fo r W H C A\ne x p en ses, and w e are aw are o f no relevant lim itation on the use o f D efense A gencies ap p ro p riatio n s.\n\n151\n\n\x0cand in connection with presidential travel are associated with the discharge\no f these responsibilities. As Commander in Chief, as well as in his other\nofficial roles, the President requires dependable means by which to commu\xc2\xad\nnicate instantly with individuals anywhere in the world at any moment. In\nan age when conflict may develop and escalate to crisis proportions in min\xc2\xad\nutes, the President cannot be expected to rely on unpredictable and variable\nprivate communications facilities. Indeed, it was precisely to eliminate the need\nfor reliance upon such non-governmental facilities that WHCA was created.\nThe provision o f these communications facilities and services for the\nofficial use of the President and his staff is WHCA\xe2\x80\x99s official mission. There\xc2\xad\nfore, provided that these facilities and services are used for official government\npurposes, WHCA may expend appropriated funds to pay for the expenses\nincurred in connection with the provision of such facilities and services,\nregardless where and for what reason the President travels.18\nW HCA also provides facilities and services for communication with the\nmedia. We believe that funds appropriated for WHCA\xe2\x80\x99s use may also per\xc2\xad\nmissibly be expended to facilitate official, as distinguished from political,\ncommunication between the President and the press. The press is indispens\xc2\xad\nable to the effective and proper functioning of the presidency \xe2\x80\x94 indeed to\ngovernment as a whole. As Commander in Chief and in his other official\nroles, the President must communicate with the public. Such communica\xc2\xad\ntion may on occasion even be necessary for reasons of national defense.\nDirect communication with the public is, as a practical matter, only possible\nwith the assistance o f private news media. Facilitation of such contact thus\nfurthers important governmental interests, regardless of the purpose for which\nthe President may be traveling.19\n\n" T h e re s p o n sib ilitie s an d duties p erfo rm ed by the P resident and those serving the P resident c an n o t\na lw ay s be sa tisfa c to rily characterized as w holly \xe2\x80\x9co fficial,\xe2\x80\x9d \xe2\x80\x9c p o litic a l,\xe2\x80\x9d or \xe2\x80\x9cp e rso n al.\xe2\x80\x9d W e noted, fo r\ne x a m p le , in th e O lso n M em orandum :\n[I]t is sim p ly n o t p o ssib le to d iv id e m any o f the actio n s o f the P resident and Vice P resident\nin to u tte rly o fficial o r purely p o litic a l categ o ries. To a ttem pt to do so in m ost cases w ould\nig n o re th e n a tu re o f o u r political system an d the stru ctu re o f o u r governm ent. A ccordingly,\neffo rts to e sta b lish such divisions m ust be ap p ro ach ed w ith com m on sense and a good faith\ne ffo rt to ap p ly th e sp irit o f the p rin c ip le s w e d iscu ss in this m em orandum , and they m ust be\nju d g e d w ith c o n sid e ra b le d eferen ce to th e d ecisio n s o f the persons d irectly involved in m ak\xc2\xad\nin g th e d eterm in atio n s.\nO lso n M em o ran d u m at 215.\nT h u s, th e re w ill a lw ay s be particular instances w hen it w ill no t be evident (and certain ly not in ad \xc2\xad\nv a n c e ) w h e th e r use o f a W H CA fa c ility will b e in fu rth eran ce o f the P resid e n t\'s official, as d is tin \xc2\xad\ng u is h e d fro m his p o litic a l, responsibilities. F o r ex am p le, a p residential aide w ho retu rn s a re p o rte r\xe2\x80\x99s\nte le p h o n e c all w ill n o t k n o w until the c o n v ersa tio n is o v e r w h ether the reporter is in terested in p o litical\no r o ffic ia l m a tte rs, o r b o th . We believ e that ev en w hen it e v entuates that the re p o rte r\xe2\x80\x99s inquiry relates\nm o re to th e P re s id e n t\xe2\x80\x99s po litical than to h is o fficial resp o n sib ilities, W H C A m ay pay for su ch de m ini\xc2\xad\nm is u se o f its fa c ilitie s, an d that sp ec ia l logs n eed not be m aintained nor o th e r m o nitoring m ethods\ne m p lo y e d . W e h av e rep eated ly em p h asized th a t co m m on sense m ust be the to u chstone in m any o f the\np a rtic u la r a p p lic a tio n s o f th e broadly d ra w n ru les in th is area.\n19 T h e re w ill n o d o u b t b e occasions w h e n there are ad d itio nal c o sts fo r press o r o th e r third -p arty c o m \xc2\xad\nm u n ic a tio n s b e y o n d th o se ordinarily asso ciated w ith th e P resid e n t\xe2\x80\x99s travel. If the costs are incurred\nfo r ite m s o r s erv ice s th at are attrib u tab le to the special needs a n d /o r requests o f such th ird p arties,\nW H C A sh o u ld seek reim bursem ent fro m the third parties.\n\n152\n\n\x0cThe same governmental interests are served by the incidental security func\xc2\xad\ntions performed by WHCA, such as provision of a bullet-proof podium or an\nemergency sound system. Danger to the President\xe2\x80\x99s life does not vary de\xc2\xad\npending on the purpose of a public appearance.20 Appropriated monies therefore\nmay be used to pay the expenses associated with these services as well.\n\nCONCLUSION\nWe conclude that virtually all of the functions that you have informed us\nare performed by WHCA in connection with presidential travel are in fur\xc2\xad\ntherance of WHCA\xe2\x80\x99s official mission to provide a continuous communications\ncapability to the President and his advisers. As a consequence, the expenses\nincurred for these activities may be paid with appropriated funds, regardless\nof whether the travel is for official, political, or personal purposes.\n\nJ. MICHAEL LUTTIG\nAssistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x9c T he official p u rp o se beh in d tw o o th er W H C A activities \xe2\x80\x94 c o n tro lling the \xe2\x80\x9c feed\xe2\x80\x9d to the sound sy stem\n(in clu d in g tu rn in g o ff the m icrophones at the end o f a speech) and furnishing a telep ro m p ter w henever\nreq u ired \xe2\x80\x94 is not as e asily discernible. We sim ply h ave not b een provided sufficient in fo rm atio n c o n \xc2\xad\ncerning the p u rp o ses fo r having W H C A perform these functions to enable us to conclude w hether they\nm ay be paid for w ith a p p ro p riated funds.\n\n153\n\n\x0c'


b'Equitable Transfers of Forfeited Monies or Property\n\nW h e n th e fe d e ra l g o v e rn m e n t m a k e s an e q u ita b le tra n s fe r o f fo rfe ite d m o n ies o r p ro p e rty to a s ta te o r\nlocal la w e n fo rc e m e n t a g e n c y , th a t transfer is m o re a p p ro p ria te ly c h a ra c te riz e d as a c o n d itio n a l gift\nto th e a g e n c y ra th e r th a n as a fo rm al c o n tract b e tw e e n th e fe d e ra l g o v e rn m e n t a n d the a g en c y .\n\nIf the s ta te o r lo c a l a g e n c y fa ils to u se the tra n s fe rre d p ro p e rty fo r law e n fo rc e m e n t p u rp o se s, th e fe d \xc2\xad\neral g o v e rn m e n t m a y b e a b le to p u rsu e re s titu tio n o f th e p ro p e rly .\n\nApril 19, 1994\nM e m o r a n d u m O p t i o n f o r t h e D ir e c t o r a n d C h ie f C o u n s e l\nE x e c u t iv e O f f ic e f o r A s s e t F o r f e it u r e\n\nYou have requested our assistance in determ ining whether equitable transfers of\nforfeited property to state and local law enforcem ent agencies should be viewed as\ncontracts or as conditional gifts. Pursuant to 21 U .S.C \xe2\x80\x99 \xc2\xa7 881 and 19 U.S.C.\n\xc2\xa7 1616a, the Attorney General has the authority to share forfeited monies or tangi\xc2\xad\nble property with any state or local law enforcem ent agency which participated\ndirectly in the investigative or prosecutorial efforts leading to the seizure and for\xc2\xad\nfeiture o f the property. The local agency wishing to share in the forfeited property\nm ust apply by subm itting an \xe2\x80\x9cApplication for Transfer of Federally Forfeited\nProperty \xe2\x80\x94 Form D A G -71\xe2\x80\x9d (\xe2\x80\x9cDAG-71\xe2\x80\x9d) within sixty days of the seizure. See A\nG uide to E qu itable Sharing o f F ederally F orfeited P ro p erty f o r State an d L ocal\nLaw E nforcem ent A gen cies, December 1990, at 3 (\xe2\x80\x9cGuide\xe2\x80\x9d). Both the shared\nproperty and any income generated from it \xe2\x80\x9cm ust be used for the law enforcement\npurposes\xe2\x80\x9d specified by the requesting agency in its DAG-71 form. Id. at 4; see\na lso The A ttorn ey G e n e ra l\xe2\x80\x99s G uidelines on S eized an d F orfeited P roperty, July\n\n1990, at 8 (\xe2\x80\x9cG uidelines\xe2\x80\x9d).1 Permissible law enforcem ent purposes include, but are\nnot limited to, the purchase of vehicles, weapons, or protective equipment and the\npaym ent o f salaries and other expenses. Guide at 4.\nThe question about the appropriate characterization of equitable transfers has\narisen because o f the failure of some local agencies to comply with the Guidelines.\nSpecifically, a 1992 audit by the Inspector General revealed that some agencies\nhave failed to use transferred monies and property for permissible law enforcement\npurposes. The General Counsel o f the Office of the Inspector General concluded\nthat the Justice Departm ent could seek to recover these misspent monies through\nrestitution because the equitable transfer created a contractual relationship.2 See\n1 B oth the D AG-71 form and its accom panying in stru ctio n s also state that all assets transferred m ust be\nused for the law en fo rcem en t pu rp o se specified in the request.\n" T h e G en eral C ounsel also concluded th at th e D epartm ent co u ld act to preclude future disbursem ents to\nan ag en cy m isu sin g funds T h e availability o f th is rem edy has not been questioned\n\n74\n\n\x0cEquitable T ransfers o f F orfeited M onies or Property\'\n\nMemorandum for Guy Zimmerman, Assistant Inspector General for Audit, from\nHoward L. Sribnick, General Counsel, Office of the Inspector General (Sept. 9,\n1992). The Executive Office of Asset Forfeiture, however, has stated that it\nis more inclined to view equitable transfers as conditional gifts rather than\ncontractual relationships and thus believes the Department is powerless to seek\nrestitution of transferred funds.\nSee M emorandum for W alter Dellinger,\nAssistant Attorney General, Office o f Legal Counsel, from Cary H. Copeland,\nDirector and C hief Counsel, Executive Office for Asset Forfeiture (Dec. 17,\n1993).\nWe believe that the equitable transfers at issue here are more analogous to\na conditional gift than to a formal contractual relationship. Although it is true\nthat the Guide states that the DAG-71 should be \xe2\x80\x9ctreated as a contract\xe2\x80\x9d between\nthe requesting agency and the Department of Justice, see Guide at 4, we believe\nthat this language is better read as signifying that the conditions placed on the\ntransfer are binding on the local agency rather than as creating a formal contract.\nA formal contract is not created for three reasons. First, the language o f both the\nGuide and the Guidelines suggests that the intent of the program is to reward local\nlaw enforcement agencies for their valuable past assistance in securing the prop\xc2\xad\nerty, rather than to create a bargained-for exchange o f the agency\xe2\x80\x99s promise to use\nthe money for law enforcement in return for a share in the forfeited property. For\nexample, the amount of the equitable share awarded depends in part on the degree\nof direct participation in the law enforcement effort by the local agency and on\nwhether the local agency provided unique or indispensable assistance. Guidelines\nat 9. A promise to reward past conduct is not sufficient to create a contract under\nsettled principles of contract law. R estatem ent (Second) o f C ontracts \xc2\xa7 86 (1981).\nSecond, the absence of bargained-for legal detriment on the part o f the requesting\nagency suggests that the relationship created is that of a conditional gift rather than\na formal contractual relationship. Even though the requesting agency promises not\nto use the money for any purpose other than that specified in the request, this is not\nan example of a promise not to do something the agency would otherwise have the\nright to do. Finally, neither the DAG-71 form nor the Guidelines suggest that the\nfederal government is ever bound to make the requested transfer. See, e.g., G uide\xc2\xad\nlines at 1 (Guidelines are not intended to create any rights on behalf of claim ants or\npetitioners).\nIt is also our belief, however, that the conclusion that an equitable transfer is\na conditional gift does not necessarily preclude the federal government from seek\xc2\xad\ning restitution of transferred funds being used for non-law-enforcement purposes.\nAs an initial matter, it is clear that a promise to use the transferred property for\n\' The legislative history o f the am endm ents to 21 U S C. \xc2\xa7 881 and 19 U S C \xc2\xa7 1616a also m akes plain\nthat the purpose o f allow ing the A ttorney G eneral to transfer funds to local agencies was to recognize the\nassistance o f those agencies in securing the forfeiture and to enhance cooperation betw een local and federal\nlaw enforcem ent agencies H R Rep. No 98-1030, at 216, 219 (1984), rep rin ted in 1984 U S C C A N\n3 1 8 2 ,3 3 9 9 , 3402\n\n75\n\n\x0cO pinions o f the O ffice o f L egal C ounsel\n\nlaw enforcement purposes is in fact a condition of receiving an equitable\nshare from the federal government. See, e.g., DAG-71 (requiring requestor to\ncertify that property will be used for law enforcement purpose stated); Guidelines\nat 8 (stating that all property transferred shall be used for law enforcement pur\xc2\xad\nposes). The DAG-71 further reinforces the interest of the federal government in\nensuring that the money is used for law enforcement purposes by requiring the lo\xc2\xad\ncal agency to certify that it will report on the actual use of equitably shared prop\xc2\xad\nerty upon request. In addition, the Guidelines make plain that \xe2\x80\x9cthe integrity of the\nentire forfeiture program depends upon the faithful stewardship of forfeited prop\xc2\xad\nerty and the proceeds thereof.\xe2\x80\x9d Guidelines at 1. Permitting local agencies to use\nthe proceeds of forfeited property for any purpose whatsoever would undermine\nthe integrity of the program.\nThe fact that the Department has placed such a clear condition on the use of\nfunds received under the equitable sharing program and has reserved the right\nto confirm that an agency uses transferred funds as promised suggests that the\nDepartment did not intend to pass unconditional control of the funds to the\nlocal agency. Instead, it appears that the Department intended to make a condi\xc2\xad\ntional gift, which remains in effect only so long as the gift is being used for its\nintended purpose. \xe2\x80\x9cA gift may be conditioned upon the donee\xe2\x80\x99s performance\nof specified obligations . . . If the obligation is not performed, the donor is entitled\nto restitution.\xe2\x80\x9d Ball v. Hall, 274 A .2d 516, 520 (Vt. 1971). In the analogous\ncontext of federal grants to state and local agencies, courts have stated that the\nfederal government may use principles of restitution to recover monies that\nwere granted for specific purposes and then used in contravention of those\npurposes, even in the absence of statutory authority expressly permitting such\nrecovery. See, e.g., West Virginia v. Secretary o f Educ., 667 F.2d 417, 419\n(4th Cir. 1981) (per curiam); Mount Sinai Hosp. v. Weinberger, 517 F.2d 329\n(5th Cir. 1975), cert, denied, 425 U.S. 935 (1976). But see 2 Richard B. Cappalli,\nFederal Grants and Cooperative Agreements \xc2\xa7 8:15, at 80-82 (1982) (suggesting\nthat federal agency may have forfeited its right to recover improperly used funds if\nit has not established a right to recovery in the grant agreement or in duly promul\xc2\xad\ngated regulations). Restitutionary remedies are available because, although not a\nformal contractual relationship, federal grant programs are nonetheless \xe2\x80\x9cmuch in\nthe nature of a contract: in return for federal funds, the [grantee] agree[s] to com\xc2\xad\nply with federally imposed conditions.\xe2\x80\x9d Pennhurst State School v. Halderman,\n451 U.S. 1, 17 (1981).\nW hether to pursue restitution against local agencies misusing funds transferred\nto them under the equitable sharing program is a policy question not suited for\n\n4\nT h e S u p rem e C o u rt has not yet resolved th e question w h eth er the federal governm ent has a com m on law\nright to re c o v er funds w h en ev er a grant recip ien t fails to co m p ly w ith the conditions of the grant. Bell v.\nN ew J e r s e y , 461 U .S. 773, 782 n 7 (1983)\n\n76\n\n\x0cE quitable T ra n tfers o f F orfeited M onies o r Properry\n\nresolution by this office. We mean to suggest only that a right to recover misspent\nfunds on a restitution theory may well be supportable under current case law.\n\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\n77\n\n\x0c'


b'Authorization o f Immigration Emergency Fund\nReimbursements\nThe continuing resolution enacted on September 30, 1995, does not limit or suspend the authority\nthat would otherwise exist for the obligation or expenditure o f an Immigration Emergency Fund\nreimbursement pursuant to section 404(b) of the Immigration and Nationality Act.\nT he Immigration Emergency Fund m ay be used to reimburse the State o f Florida for its increase\nin social service and health expenses deriving from the influx o f Cuban immigrants resulting from\na presidential decision.\n\nNovember 8, 1995\nM e m o r a n d u m O p in io n f o r t h e\nA s s is t a n t A t t o r n e y G e n e r a l f o r A d m in is t r a t io n\n\nSection 404(b) of the Immigration and Nationality Act (\xe2\x80\x9c INA\xe2\x80\x9d ) established\nthe Immigration Emergency Fund (\xe2\x80\x9c IEF\xe2\x80\x9d ). See INA \xc2\xa7 404(b), 8 U.S.C. \xc2\xa71101\nnote. On September 28, 1995, President Clinton determined that an immigration\nemergency existed within the meaning of section 404(b) and that a $6,000,000\nreimbursement should be made available from the IEF to reimburse those who\nassisted in the enforcement of immigration laws in connection with the repatriation\nof aliens interdicted en route to the United States and being smuggled by orga\xc2\xad\nnized international syndicates. As required by section 404(b)(1), the President cer\xc2\xad\ntified his determination to the Judiciary Committees of the House of Representa\xc2\xad\ntives and the Senate on October 3, 1995. On September 28, 1995, the Deputy\nAttorney General, addressing a separate matter, but also acting pursuant to section\n404(b) of the INA, authorized an $18,000,000 reimbursement to the State of\nFlorida.1 On September 30, 1995, just prior to the October 1, 1995, commence\xc2\xad\nment of the new fiscal year, Pub. L. No. 104-31, 109 Stat. 278 (1995) (\xe2\x80\x9c Con\xc2\xad\ntinuing Resolution\xe2\x80\x9d ) was approved. The Continuing Resolution provides funds\nand authority to continue various government programs, operations, and activities\nthat would otherwise have experienced a lapse in appropriations and remains in\neffect until November 13, 1995, at the latest.\nYou have asked for our opinion on two questions raised by the authorization\nof these reimbursements. First, you have asked whether they are prohibited from\nbeing made under the terms of the Continuing Resolution. Second, you have asked\nwhether the terms of the IEF permit the $18,000,000 reimbursement authorized\nto Florida. We answer these questions in turn.\n1 Because the Deputy Attorney General authorized the reimbursement pursuant to section 404(b)(2)(A), a presi\xc2\xad\ndential determination o f em ergency and certification to Congress were not required. See id. \xc2\xa7404(b)(2)(C) ( \xe2\x80\x9c [f|or\npurposes o f subparagraph (A), the requirement o f paragraph (1) that an immigration emergency be determined shall\nnot apply\xe2\x80\x9d ). This reimbursement was thus obligated on September 28,1995, during fiscal year 1995.\n\n278\n\n\x0cAuthorization o f Immigration Emergency Fund Reimbursements\n\nI.\n\nThe IEF is a \xe2\x80\x9c no year fund\xe2\x80\x9d \xe2\x80\x94 that is, Congress did not limit the appropriations\nit made to the IEF to a specific fiscal year or set of fiscal years, nor did it establish\nthat the authority granted by section 404(b) would expire. Instead, Congress at\nirregular intervals appropriates funds to the IEF to \xe2\x80\x9c remain available until\nexpended.\xe2\x80\x9d The Administration did not submit a request for IEF funds in its fiscal\nyear 1996 appropriations request.2\nThe act creating the IEF authorizes reimbursements in two different cir\xc2\xad\ncumstances. When the President declares an immigration emergency and certifies\nthat determination to the Judiciary Committees of the House and Senate, IEF funds\ncan be used to increase border patrols or other enforcement activities of the\nImmigration and Naturalization Service (\xe2\x80\x9c INS\xe2\x80\x9d ) or to reimburse states and local\xc2\xad\nities in providing assistance requested by the Attorney General. See INA \xc2\xa7 404(b),\n8 U.S.C. \xc2\xa71101 note. The authorization to use up to $6 million of the IEF to\nreimburse third countries was made pursuant to this authority.\nIEF funds can also be used to reimburse states and localities providing assist\xc2\xad\nance to the Attorney General under certain specified conditions, or under any other\ncircumstance determined by the Attorney General. Id. The authorization to use\nup to $18,000,000 of the IEF to make reimbursements to Florida was issued pursu\xc2\xad\nant to this authority.3\nAs we understand it, there is concern that the Continuing Resolution limits or\nsuspends the authority that would otherwise exist for the obligation or expenditure\nof these monies pursuant to section 404(b) of the INA. This concern rests on\nthe belief that the Continuing Resolution prohibits all obligations or expenditures\nexcept those expressly provided for in the Continuing Resolution itself. This is\na misunderstanding of the Continuing Resolution.\nMany of the federal government\xe2\x80\x99s continuing programs, projects, and activities\nare funded through one of the thirteen appropriations bills that are enacted\nannually. Those programs, projects, and activities may only continue after the\nconclusion of a fiscal year if the relevant appropriations bill has been enacted\nfor the following fiscal year.4 On the occasions when Congress has failed to enact\nany or all of these annual appropriations bills by the end of the preceding fiscal\nyear, Congress has typically enacted a continuing resolution to allow those pro\xc2\xad\ngrams that would otherwise lapse to continue until an annual appropriation is\n2 In 1989, Congress appropriated $35,000,000 lo the IEF. See Pub. L. No. 101-162, tit. II, 103 Stat. 988, 1000\n(1989). It did not appropriate money to the IEF again until October 1993, when it appropriated $6,000,000. See\nPub. L. No. 103-121, tit. I, 107 Stat. 1153, 1161 (1993). Most recently, Congress appropriated $75,000,000 for\nthe IEF in August 1994. See Pub. L. No. 103-317, tit. I, 108 Stat. 1724, 1732 (1994).\n3 The Deputy Attorney General is authorized to exercise all o f the authority of the Attorney General. See 28\nC.F.R. \xc2\xa70.15(a) (1995).\n4 This generally applicable statement is subject to statutory exceptions, most notably those contained in the\nAntideficiency Act. See 31 U.S.C. \xc2\xa7\xc2\xa7 1341-1342.\n\n279\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nenacted. See 2 Office of the General Counsel, United States General Accounting\nOffice, Principles o f Federal Appropriations Law 8-2 (2d ed. 1992).\nUnder this usual practice, a continuing resolution does not apply to obligations\nvalidly incurred during the preceding fiscal year. The $18,000,000 grant to Florida\nwas validly obligated in fiscal year 1995, and so would not be covered under\na standard continuing resolution.5 There also are programs, projects, and activi\xc2\xad\nties\xe2\x80\x94 such as the IEF\xe2\x80\x94 that are not dependent upon annual appropriations bills\nfor appropriations or authority. Traditionally, continuing resolutions do not apply\nto these programs, projects, or activities. Of course, Congress could, if it chose,\nextend the coverage of a continuing resolution to include all programs, projects,\nand activities; however, we find nothing in the Continuing Resolution\xe2\x80\x99s text to\nsuggest that Congress altered its usual practice in a way that affects the IEF.\nWe understand the contention that the current Continuing Resolution limits or\nsuspends the authority and prior authorization otherwise applicable to the IEF to\nbe based on section 107, which provides: \xe2\x80\x9c Appropriations made and authority\ngranted pursuant to this joint resolution shall cover all obligations or expenditures\nincurred for any program, project, or activity during the period for which funds\nor authority for such project or activity are available under this joint resolution.\xe2\x80\x9d\nId. \xc2\xa7 107, 109 Stat. at 280. The natural reading of this section is that it contains\na term that defines the scope of coverage of the appropriations made and authority\ngranted by the Continuing Resolution (\xe2\x80\x9c all obligations or expenditures incurred\nfor any program, project, or activity\xe2\x80\x9d ), as well as a term that defines the duration\nof the time period during which that scope of coverage applies (\xe2\x80\x9c during the period\nfor which funds or authority for such project or activity are available under this\njoint resolution\xe2\x80\x9d ). In addition to specifying scope of coverage and duration of\ncoverage for programs, projects or activities for which the Continuing Resolution\ndoes contain appropriations and authority, however, it has also been suggested\nthat this section applies to programs, projects or activities for which the Con\xc2\xad\ntinuing Resolution does not contain appropriations or authority. In other words,\nthe suggestion is that there is a negative implication to this section that any pro\xc2\xad\ngram, project or activity not affirmatively provided funding or authority by the\nContinuing Resolution is thereby denied appropriations and authority, notwith\xc2\xad\nstanding any other provisions o f law. Perhaps this suggestion rests in part on the\nbelief that the use of the expression \xe2\x80\x9c any program, project, or activity\xe2\x80\x9d within\nthe scope of coverage term extends the applicability of section 107 to all programs,\nprojects or activities of the government.\nAs we have indicated already, this reading would be inconsistent with the usual\npractice and understanding of Continuing Resolutions. More importantly, it simply\n5 It is not clear w hether the $6,000,000 reimbursement was obligated in fiscal year 1995 or 1996. The IEF requires\nthe President to determ ine that an immigration emergency exists and to certify that fact to Congress. Because the\nPresident did not certify the immigration emergency to Congress until O ctober 3, 1995, it is arguable that the\n$6,000,000 reim bursem ent was not obligated until fiscal year 1996. W e need not resolve this question because,\nas w e dem onstrate infra, the Continuing Resolution does not apply to the IEF.\n\n280\n\n\x0cAuthorization o f Immigration Emergency F und Reimbursements\n\nis not possible to read section 107 in a way that supports such a negative implica\xc2\xad\ntion. Interpreting \xe2\x80\x9c any\xe2\x80\x9d in the scope of coverage term to encompass \xe2\x80\x9c all\xe2\x80\x9d\ngovernment programs, so as to deny appropriations or authority to programs,\nprojects or activities not affirmatively granted funds or authorization by the Con\xc2\xad\ntinuing Resolution, does not produce the result of withholding authority from such\nprograms. Instead, the duration of coverage of this section with respect to a pro\xc2\xad\ngram for which the Continuing Resolution does not appropriate monies or grant\nauthority equals zero, because the \xe2\x80\x9c period for which funds or authority for such\nproject or activity are available under this joint resolution\xe2\x80\x9d is zero. In other words,\nsection 107 would have the effect of covering all obligations or expenditures for\nsuch a program for a time period of zero moments\xe2\x80\x94 which is tantamount to\nsaying that the section does not cover such a program. Rather than giving the\nsection this self-abnegating reading, it makes far more sense to understand that\nthe limitation to programs affirmatively covered by appropriations or authorities\nin the Continuing Resolution that is the natural reading of the subject of the sec\xc2\xad\ntion (\xe2\x80\x9c [appropriations made and authority granted pursuant to this joint resolu\xc2\xad\ntion\xe2\x80\x9d ), and that is expressed in the durational term (\xe2\x80\x9c for which funds or authority\nfor such project or activity are available under this joint resolution\xe2\x80\x9d ) also applies\nto the phrase \xe2\x80\x9c any program, project or activity\xe2\x80\x9d in the scope of coverage term,\nso that the entire section is read to apply only to programs, projects or activities\nthat are affirmatively covered by appropriations or authorities in the Continuing\nResolution. Nevertheless, the operative result of the section is the same whether\n\xe2\x80\x9c any program, project or activity\xe2\x80\x9d is viewed as limited in this way or not: section\n107 by its terms does not withdraw appropriations or authorities otherwise pro\xc2\xad\nvided by law when those programs are not affirmatively covered by the Con\xc2\xad\ntinuing Resolution.\nAccordingly, the authorization of section 404(b) to obligate and expend avail\xc2\xad\nable IEF appropriations would only be affected by the Continuing Resolution if\nsome express provision of the Continuing Resolution applies to it. None does.\nThe only two sections of the Continuing Resolution that might conceivably cover\nthe obligations from the IEF are sections 101 and 111. Neither of these sections,\nhowever, actually does.\nThe Continuing Resolution provides appropriations and authority for \xe2\x80\x9c con\xc2\xad\ntinuing projects or activities\xe2\x80\x9d covered in the appropriations bills listed in section\n101. As already indicated, none of these bills authorizes or appropriates for the\nIEF. The Continuing Resolution also provides authority and appropriations for\nthree categories of ongoing projects or activities in section 111, but none of these\ncategories applies to the IEF. First, it applies \xe2\x80\x9c whenever an Act listed in section\n101 as passed by both the House and Senate as of October 1, 1995, does not\ninclude funding for an ongoing project or activity for which there is a budget\nrequest.\xe2\x80\x9d Id. \xc2\xa7 111, 109 Stat. at 280. This category is inapplicable, as the Adminis\xc2\xad\ntration made no budget request for the IEF. Second, section 111 applies \xe2\x80\x9c when\xc2\xad\n281\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\never an Act listed in section 101 has been passed by only the House or only\nthe Senate as of October 1, 1995 and an item funded in fiscal year 1995 is not\nincluded in the version passed by the one House.\xe2\x80\x9d Id. This category does not\ndescribe the IEF, for the Departments of Commerce, Justice, and State, the\nJudiciary, and Related Agencies Appropriation Act, 1996, Pub. L. No. 104-134,\n110 Stat. 1321, had passed both houses of Congress by October I, 1995. Finally,\nsection 111 applies \xe2\x80\x9c whenever the rate for operations for an ongoing project or\nactivity provided by section 101 for which there is a budget request would result\nin the project or activity being significantly reduced.\xe2\x80\x9d Continuing Resolution,\n\xc2\xa7111, 109 Stat. at 280. This category does not apply to the IEF both because\nthe IEF is not covered by section 101 and because there is no budget request\nfor the IEF. Finally, section 111 provides that \xe2\x80\x9c [n]o new contracts or grants shall\nbe awarded in excess of an amount that bears the same ratio to the rate for oper\xc2\xad\nations provided by this section as the number of days covered by this resolution\nbears to 366.\xe2\x80\x9d Id. (Emphasis added.) Because the IEF\xe2\x80\x99s rate for operations is\nnot provided by section 111 or any other provision of the Continuing Resolution,\nbut rather is provided by section 404(b) of the INA, section 111 does not apply\nto the IEF.\nII.\nYour second question relates to an $18,000,000 allocation to Florida for that\nstate\xe2\x80\x99s expenses deriving from the influx of Cuban immigrants resulting from the\nPresident\xe2\x80\x99s decision to \xe2\x80\x9c bring into the United States the Cuban population on\nGuantanamo and to repatriate Cuban migrants apprehended at sea in the future.\xe2\x80\x9d\nMemorandum for the Deputy Attorney General, from Amy Jeffress, Special\nAssistant to the Deputy Attorney General at 1 (Aug. 30, 1995) (\xe2\x80\x9c Jeffress\nMemo\xe2\x80\x9d ). Specifically, you have asked (a) whether the IEF may be used to offset\nthe increase in social service and health care costs that Florida will bear as a\nresult of the President\xe2\x80\x99s decision and (b) if so, whether the allocation may be\ndisbursed prospectively\xe2\x80\x94 that is, before Florida actually has incurred the antici\xc2\xad\npated increased social service and health care expenses. For the reasons set forth\nbelow, we believe that the purposes for which the allocation is to be made are\npermissible under the statute and implementing regulations; however, we do not\nbelieve that the payments may be made prospectively.\nA.\nIn 1986, Congress established the IEF to be available in case of a presidentially\ndeclared immigration emergency. See Immigration Reform and Control Act of\n1986, Pub. L. No. 99-603 \xc2\xa7113, 100 Stat. 3359, 3383.6 Congress specifically\n6 Date corrected and citation added by editors.\n\n282\n\n\x0cAuthorization o f Immigration Emergency Fund Reimbursements\n\nhad in mind the Mariel boatlift. See, e.g., H.R. Rep. No. 99-682(1), at 65 (1986),\nreprinted in 1986 U.S.C.C.A.N. 5649, 5669. In 1990, Congress added a section\npermitting the Attorney General to use up to $20,000,000 to reimburse states for\nimmigration-related expenses that were not incurred in a presidentially declared\nimmigration emergency. Immigration Act of 1990, Pub. L. No. 101-649, \xc2\xa7705,\n104 Stat. 4978, 50877 (\xe2\x80\x9c [T]he requirement . . . that an immigration emergency\nbe determined shall not apply.\xe2\x80\x9d ). That section allows the Attorney General to\nreimburse states for their assistance to the Attorney General whenever the number\nof asylum claims for a calendar quarter exceeds by 1,000 the applications received\nin the previous quarter; the lives, property, safety, or welfare of the state\xe2\x80\x99s resi\xc2\xad\ndents are endangered; or \xe2\x80\x9c in any other circumstances as determined by the\nAttorney General.\xe2\x80\x9d INA \xc2\xa7 404(b)(2)(A), 8 U.S.C. \xc2\xa71101 note. Congress thus\nexpressed, and enacted, its intent to grant the Attorney General broad discretion\nto determine when the IEF should be used to reimburse states. Consistent with\nthis statutory scheme, Congress authorized the Attorney General to promulgate\nregulations to implement the IEF and to \xe2\x80\x9c delineat[e] . . . \xe2\x80\x98other circumstances.\xe2\x80\x99 \xe2\x80\x9d\nSee Departments of Commerce, Justice, and State, the Judiciary, and Related\nAgencies Appropriations Act, 1992, Pub. L. No. 102-140, \xc2\xa7 610(b), 105 Stat. 782,\n832 (1991).\nPursuant to this statutory authorization, the Attorney General has issued regula\xc2\xad\ntions to govern administration of the IEF and delineate the \xe2\x80\x9c other circumstances\xe2\x80\x9d\nin which the IEF will be available to reimburse states. The regulations state,\n\xe2\x80\x9c [o]ther circumstances means a situation that, as determined by the Attorney Gen\xc2\xad\neral, requires the resources of a State or local government to ensure the proper\nadministration of the immigration laws of the United States or to meet urgent\ndemands arising from the presence of aliens in a State or local government\xe2\x80\x99s juris\xc2\xad\ndiction.\xe2\x80\x9d 28 C.F.R. \xc2\xa765.81 (1995). The Attorney General promulgated this delin\xc2\xad\neation of \xe2\x80\x9c other circumstances\xe2\x80\x9d along with an explanatory note in which she\nobserved that costs such as those relating to social services and health care do\nnot typically fall within this delineation. She also made clear, however, that \xe2\x80\x9c in\nlimited circumstances\xe2\x80\x9d such services could in fact \xe2\x80\x9c assist the Attorney General\xe2\x80\x9d\nand so would be reimbursable. 59 Fed. Reg. 30,520, 30,521 (1994).\nThe Deputy Attorney General, who is authorized to discharge the Attorney Gen\xc2\xad\neral\xe2\x80\x99s functions under the IEF, see 28 U.S.C. \xc2\xa7510; 28 C.F.R. \xc2\xa7 0.15(a), has deter\xc2\xad\nmined that Florida\xe2\x80\x99s request represents one of the limited circumstances in which\nthe regulations and statute allow the IEF to be used to reimburse states for the\ncost of social services provided to aliens. See Executive Summary and Request\nfor Decision (Aug. 30, 1995). The Deputy Attorney General reached her decision\nafter concluding that the costs Florida has borne, and continues to bear, constitute\nurgent assistance to the Attorney General and the federal government generally\n7 Date and citation corrected by editors. As issued in 1995, the Opinion cited Pub. L. No. 99-603, 100 Stat.\n3359 (1986).\n\n283\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nin implementing and enforcing federal immigration law. See id;, Jeffress Memo\nat 2-3. We defer to the Deputy Attorney General\xe2\x80\x99s determination.\nB.\nThe $18,000,000 allocation is meant to reimburse Florida for a variety of obliga\xc2\xad\ntions, some of which apparently have not yet been incurred but which are antici\xc2\xad\npated. The regulations that the Attorney General promulgated to implement the\nlegislation establishing the IEF provide for disbursements in the form of a\n\xe2\x80\x9c reimbursement agreement, grant, or cooperative agreement.\xe2\x80\x9d 28 C.F.R. \xc2\xa7\xc2\xa765.84,\n65.85 (1995). Generally, we would interpret the term \xe2\x80\x9c grant\xe2\x80\x9d as encompassing\npayments for purposes in addition to reimbursements and including prospective\npayments. Regulations, however, must be interpreted in light of the statutory\nauthority on which they are based, as a regulation may not expand the authority\ngranted by its authorizing statute. See, e.g., Bowen v. Georgetown Univ. Hosp.,\n488 U.S. 204, 208 (1988). In this instance, the statute establishing the IEF only\nprovides for reimbursements. The statute ordains that, \xe2\x80\x9c [fjunds . . . shall be avail\xc2\xad\nable, by application for the reimbursement of States and localities providing assist\xc2\xad\nance as required by the Attorney General, to States and localities.\xe2\x80\x9d INA\n\xc2\xa7 404(b)(2)(A), 8 U.S.C. \xc2\xa7 1101 note.\nThe statute thus provides only for \xe2\x80\x9c reimbursement.\xe2\x80\x9d The ordinary meaning of\n\xe2\x80\x98\xe2\x80\x98reimbursement\xe2\x80\x99\xe2\x80\x99 is a repayment or ex post facto compensation for an obligation\nalready incurred. See, e.g., Webster\xe2\x80\x99s Third New International Dictionary 1914\n(1993) (defining \xe2\x80\x9c reimburse\xe2\x80\x9d to mean \xe2\x80\x9c to pay back (an equivalent for something\ntaken, lost, or expended) to someone\xe2\x80\x9d ). \xe2\x80\x9c Reimbursement,\xe2\x80\x9d at least in its ordinary\nusage, does not cover a prospective or advance payment for obligations that have\nnot yet been incurred but which merely are anticipated. Congress, of course, may\ngive any meaning it wishes to the terms it uses in statutes, and if it had indicated\nthat it meant reimbursement to include prospective payments, then such payments\nwould be permissible. See United States v. Ron Pair Enters., 489 U.S. 235, 242\n(1989). There is nothing in the statute or in its legislative history, however, that\naddresses the meaning of reimbursement generally or the specific matter of\nwhether that term might refer to prospective payments. In contrast, there are at\nleast thirty-four8 statutes that create grants that can be used for either payment\n\xe2\x80\x9c in advance or by way of reimbursement.\xe2\x80\x9d 9 We take these frequent disjunctive\n\xe2\x80\x9c C orrected by editors. As issued in 1995, the opinion read \xe2\x80\x9c at least forty statutes."\n9 See 22 U .S.C. \xc2\xa7 4025(a); 42 U.S.C. \xc2\xa7 254b(d)(4)(B); 42 U.S.C. \xc2\xa7 254c(d)(4)(B); 42 U.S.C. \xc2\xa7 254f(b)(2)(B); 42\nU.S.C. \xc2\xa7 286b-8(a); 42 U.S.C. \xc2\xa7287a-2(e)(2); 42 U.S.C. \xc2\xa72 9 1 j-1 0 ; 42 U.S.C. \xc2\xa7295o(f)(lX A ); 42 U.S.C. \xc2\xa7 3 0 0 e 16(a)(4); 42 U .S.C. \xc2\xa7 3 0 0 j-9 (d )(l); 42 U .S.C . \xc2\xa71394; 42 U.S.C. \xc2\xa73057m ; 42 U.S.C. 5022; 42 U.S.C. \xc2\xa76082(e);\n42 U.S.C. \xc2\xa7 6978(a); 42 U.S.C. 7601(c), 42 U.S.C. \xc2\xa7 10904(b), 42 U.S.C. \xc2\xa7 12651d(b)(2)(B); see also 21 U.S.C.\n\xc2\xa7 1177(e); 25 U.S.C. \xc2\xa7450j(b); 25 U.S.C. \xc2\xa7 1612(b)(2); 25 U.S.C. \xc2\xa7 1656(b); 29 U.S.C. \xc2\xa7 1579(c); 38 U.S.C.\n\xc2\xa7 8 2 0 1(d); 42 U.S.C. \xc2\xa7242a(c); 42 U S.C. \xc2\xa7242m (e)(l); 42 U.S.C. \xc2\xa7626(c); 42 U.S.C. \xc2\xa7 1310(a)(3); 42 U.S.C.\n\xc2\xa7 139 5 b -l(a)(l)(K )(2 ); 42 U.S.C. \xc2\xa72000c-5; 42 U.S.C. \xc2\xa73029(a); 42 U.S.C. \xc2\xa73037a(b); 42 U.S.C. \xc2\xa75657(a); 42\nU.S.C. \xc2\xa79832(3).\n\n284\n\n\x0cAuthorization o f Immigration Emergency Fund Reimbursements\n\nreferences to reimbursement, on the one hand, and prospective payments, on the\nother, as strong evidence that Congress does not ordinarily understand the term\n\xe2\x80\x9c reimbursement\xe2\x80\x9d to include prospective payments or payment \xe2\x80\x9c in advance.\xe2\x80\x9d We\ntherefore adhere to the ordinary meaning of \xe2\x80\x9c reimbursement,\xe2\x80\x9d see Bums v.\nAlcala, 420 U.S. 575, 580-81 (1975); Banks v. Chicago Grain Trimmers A ss\xe2\x80\x99n,\n390 U.S. 459, 465 (1968), and conclude that the IEF may not be used to cover\nprospective costs. Consequently, we interpret the term \xe2\x80\x9c grant\xe2\x80\x9d in the regulations\nas referring only to grants that reimburse states for obligations already incurred.\nThis conclusion is not at odds with the meaning or usage of the term \xe2\x80\x9c grant.\xe2\x80\x9d\nThere are at least three statutes that establish grant funds that, by their terms,\nare available exclusively for reimbursements. See 10 U.S.C. \xc2\xa7 1152(d)(1); 20\nU.S.C. \xc2\xa7 8004(a); 49 U.S.C. \xc2\xa731103. The statutes discussed above that provide\nfor either reimbursement or payment in advance also demonstrate that reimburse\xc2\xad\nment is not a payment method that is antithetical to grantmaking. This narrower\nconstruction of the term \xe2\x80\x9c grant\xe2\x80\x9d also finds support in the explanatory material\naccompanying the regulation, which sets forth that \xe2\x80\x9c [t]he rule has been amended\nto allow the Attorney General to use the grant or cooperative agreement process\nto provide funding, in addition to negotiating a separate reimbursement agreement.\nAccordingly, State and local governments may also use standard grant applica\xc2\xad\ntions.\xe2\x80\x9d 59 Fed. Reg. at 30,521 (emphasis added). By adding the term \xe2\x80\x9c grant\xe2\x80\x9d\nthe Attorney General apparently meant to make available an additional process\nfor seeking disbursements from the IEF and to utilize standard forms with which\napplicants were already familiar. All of this may be accomplished even though\ngrants that are issued from the IEF are available to grantees only for the purpose\nof reimbursing obligations that grantees have already incurred. This narrower\nconstruction of grant, then, does not undermine the stated purposes of the Attorney\nGeneral in allowing grants to be made from the IEF. This construction of the\nstatutory term \xe2\x80\x9c reimbursement\xe2\x80\x9d and the regulatory term \xe2\x80\x9c grant\xe2\x80\x9d does not deny\nthe authority of the Attorney General to commit a certain portion of the IEF for\nreimbursement to a state before the state has incurred obligations in the full\namount. Rather, our construction merely would prohibit full disbursement of the\ngrant amount before the recipient state has incurred obligations in the full amount\nof the grant.\nCHRISTOPHER SCHROEDER\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n285\n\n\x0c'