b'Assertion of Executive Privilege for Documents Concerning\nConduct of Foreign Affairs with Respect to Haiti\nExecutive privilege may properly be asserted with respect to certain documents subpoenaed by the\nCommittee on International Relations o f the House o f Representatives that concern the Administra\xc2\xad\ntion\xe2\x80\x99s conduct of foreign affairs with respect to Haiti.\n\nSeptember 20, 1996\n\nTHE PRESIDENT\nTHE WHITE HOUSE\nMy Dear M r. President: You have requested my legal advice as to whether\nexecutive privilege may properly be asserted with respect to documents that are\nthe subject of a subpoena issued to the Executive Secretary of the National Secu\xc2\xad\nrity Council (\xe2\x80\x9c NSC\xe2\x80\x9d ) by the Committee on International Relations of the House\nof Representatives. The documents concern the Administration\xe2\x80\x99s conduct of for\xc2\xad\neign affairs with respect to Haiti.\nThe Counsel to the President and the National Security Adviser recommend\nthat you assert executive privilege with respect to all but four of the subpoenaed\ndocuments. Several of the documents record diplomatic meetings or other commu\xc2\xad\nnications between the President, the Vice President, the National Security Adviser,\nor the Deputy National Security Adviser and the President or Prime Minister of\nHaiti. Other documents constitute confidential communications from NSC or State\nDepartment officials to the President or the Vice President. The remaining docu\xc2\xad\nments reflect and constitute the deliberations of the NSC and its staff in connection\nwith their advice and assistance to the President regarding his policy and activities\nin Haiti. I understand that efforts have been made to accommodate the Commit\xc2\xad\ntee\xe2\x80\x99s information needs with respect to these documents, but they have proven\nunavailing. The Counsel to the President and the National Security Adviser are\nappropriately concerned that the Committee\xe2\x80\x99s demand raises significant separation\nof powers concerns and that compliance with it would compromise your ability\nto conduct the foreign affairs of the United States, as well as the ability of the\nNSC to advise and assist you in discharging that constitutional responsibility.\nThe Office of Legal Counsel of the Department of Justice has reviewed the\ndocuments for which assertion of executive privilege has been recommended and\nis satisfied that they fall within the scope of executive privilege. I concur in that\nassessment. The Supreme Court has confirmed that the Constitution gives the\nPresident the authority to assert executive privilege to protect the confidentiality\nof diplomatic communications, Presidential communications, and White House de\xc2\xad\nliberative communications. See generally United States v. Nixon, 418 U.S. 683,\n705-13 (1974); Nixon v. Administrator o f General Servs., 433 U.S. 425, 44655 (1977). \xe2\x80\x9c The privilege is fundamental to the operation of Government and\n5\n\n\x0cOpinions o f the A ttorney General in Volume 20\n\ninextricably rooted in the separation of powers under the Constitution.\xe2\x80\x9d United\nStates v. Nixon, 418 U.S. at 708.\n\nMore specifically, the Supreme Court has acknowledged the settled application\nof executive privilege with respect to \xe2\x80\x9c diplomatic secrets,\xe2\x80\x9d such as the diplomatic\ncommunications with the leaders of Haiti that are subject to the Committee\xe2\x80\x99s sub\xc2\xad\npoena, stating that \xe2\x80\x9c [a]s to th[is] area[] of Art. II duties the courts have tradition\xc2\xad\nally shown the utmost deference to Presidential responsibilities.\xe2\x80\x9d Id. at 710; see\nalso id. at 706. \xe2\x80\x9c [I]t is elementary that the successful conduct of international\ndiplomacy . . . require[s] both confidentiality and secrecy. . . . [I]t is the con\xc2\xad\nstitutional duty of the Executive . . . to protect the confidentiality necessary to\ncarry out its responsibilities in the field[] of international relations . . . .\xe2\x80\x9d New\nYork Times Co. v. U nited States, 403 U.S. 713, 728-30 (1971) (Stewart, J., concur\xc2\xad\nring).\nAs Assistant Attorney General William H. Rehnquist concluded almost thirty\nyears ago, \xe2\x80\x9c the President has the power to withhold from [Congress] information\nin the field of foreign relations or national security if in his judgment disclosure\nwould be incompatible with the public interest.\xe2\x80\x9d Memorandum from John R. Ste\xc2\xad\nvenson, Legal Adviser, Department of State, and William H. Rehnquist, Assistant\nAttorney General, Office of Legal Counsel, Re: The President\xe2\x80\x99s Executive P rivi\xc2\xad\nlege to W ithhold Foreign Policy a n d N ational Security Information at 7 (Dec.\n8, 1969). History is replete with examples of the Executive\xe2\x80\x99s refusal to produce\nto Congress diplomatic communications and related documents because of the\nprejudicial impact such disclosure could have on the President\xe2\x80\x99s ability to conduct\nforeign relations. See Memorandum from Theodore B. Olson, Assistant Attorney\nGeneral, Office of Legal Counsel, 6 Op. O.L.C. 751 (1982) (compiling historical\nexamples).\nIt is equally well established that executive privilege applies to confidential\ncommunications to and from the President or Vice President and to White House\nand NSC deliberative communications. The Supreme Court has recognized \xe2\x80\x9c the\nnecessity for protection of the public interest in candid, objective, and even blunt\nor harsh opinions in Presidential decisionmaking. A President and those who assist\nhim must be free to explore alternatives in the process of shaping policies and\nmaking decisions and to do so in a way many would be unwilling to express\nexcept privately.\xe2\x80\x9d U nited States v. Nixon, 418 U.S. at 708.\nUnder controlling case law, in order to justify a demand for material protected\nby executive privilege, a congressional committee is required to demonstrate that\nthe information sought is \xe2\x80\x9c demonstrably critical to the responsible fulfillment of\nthe Committee\xe2\x80\x99s functions.\xe2\x80\x9d Senate Select Committee on Presidential Campaign\nA ctivities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc). And those\nfunctions must be in furtherance of legitimate legislative responsibilities of Con\xc2\xad\ngress. See M cG rain v. Daugherty, 273 U.S. 135, 160 (1927) (Congress has over6\n\n\x0cA ssertion o f E xecutive P rivilege fo r D ocum ents C oncerning C onduct o f F oreign A ffairs w ith R espect\nto H aiti\n\nsight authority \xe2\x80\x98\xe2\x80\x98to enable it efficiently to exercise a legislative function belonging\nto it under the Constitution\xe2\x80\x9d ).\n\xe2\x80\x9c Since Congress may only investigate into those areas in which it may poten\xc2\xad\ntially legislate or appropriate, it cannot inquire into matters which are within the\nexclusive province of one of the other branches of the Government.\xe2\x80\x9d Barenblatt\nv. United States, 360 U.S. 109, 111-12 (1959). The Committee has sought to\njustify its demand based on its need for information on \xe2\x80\x9c Administration policy\ntoward human rights abuses in Haiti\xe2\x80\x9d and \xe2\x80\x9c the Administration\xe2\x80\x99s knowledge of\ndeath squad activities in Haiti over the last two years.\xe2\x80\x9d Letter for Jack Quinn,\nCounsel to the President, from Benjamin A. Gilman, Chairman, Committee on\nInternational Relations at 2 (Sept. 19, 1996). However, the conduct of foreign\naffairs is an exclusive prerogative of the executive branch. See, e.g.. United States\nv. Curtiss-W right Export Corp., 299 U.S. 304, 320 (1936) (the President is \xe2\x80\x9c the\nsole organ of the federal government in the field of international relations\xe2\x80\x9d ); Chi\xc2\xad\ncago and Southern A ir Lines, Inc. v. Waterman 5.5. Corp., 333 U.S. 103, 111\n(1948) (the President is \xe2\x80\x9c the Nation\xe2\x80\x99s organ for foreign affairs\xe2\x80\x9d ); 5 Paul L. Ford,\nThe Writings o f Thomas Jefferson 161 (New York, The Knickerbocker Press 1895)\n(\xe2\x80\x9c [t]he transaction of business with foreign nations is executive altogether\xe2\x80\x9d ).\nThus, there is a substantial question of the executive branch\xe2\x80\x99s conduct of foreign\naffairs or its deliberations relating thereto.\nAlthough the question of Congress\xe2\x80\x99s oversight authority in this context must\nbe viewed as unresolved as a matter of law, it is clear that congressional needs\nfor information in this context will weigh substantially less in the constitutional\nbalancing than a specific need in connection with the considerations of legislation.\nBased on the Office of Legal Counsel\xe2\x80\x99s review of the documents for which asser\xc2\xad\ntion of executive privilege has been requested, and conducting the balancing re\xc2\xad\nquired by the case law, see Senate Select Committee, 498 F.2d at 729-30; U nited\nStates v. Nixon, 418 U.S. at 706-07, I do not believe that access to these docu\xc2\xad\nments would be held by the courts to be \xe2\x80\x9c demonstrably critical to the responsible\nfulfillment of the Committee\xe2\x80\x99s functions.\xe2\x80\x9d Senate Select Committee, 498 F.2d at\n731.\nIn conclusion, it is my legal judgment that executive privilege may properly\nbe asserted in response to the Committee\xe2\x80\x99s subpoena.\nSincerely,\nJANET RENO\nAttorney General\n\n1\n\n\x0c'


b"February 14, 1979\n\n79-14\n\nMEMORANDUM OPINION FOR THE\nASSISTANT DIRECTOR, LEGAL COUNSEL,\nFEDERAL BUREAU OF INVESTIGATION\nAssertion of State Secrets Privilege in Civil\nLitigation\n\nThis responds to your request for the views o f this Office regarding two\nquestions: (1) whether properly classified information qualifies for nondis\xc2\xad\nclosure in civil litigation on the basis o f the privilege for state secrets; and (2)\nwhether a claim o f privilege for state secrets may be asserted concurrently\nwith other claims o f privilege for the same inform ation. Your Office states\nthat these questions are particularly im portant in litigation where the parties\nseek information pertaining to the identity o f informants.\nThe issue whether classified information satisfies the requirements o f\nthe state secrets privilege raises two different but related questions: The\nfirst is whether classified material is protected by the state secrets\nprivilege\xe2\x80\x94i.e., \xe2\x80\x9c matters relating to international relations, military af\xc2\xad\nfairs, and public security.\xe2\x80\x9d 8 Wigmore, Evidence \xc2\xa7 2378, at 794\n(M cNaughton rev. 1961). See also 8 Wright and Miller, Federal Practice\nand Procedure \xc2\xa7 2019, at 158 (1970). Even when the inform ation falls\nwithin these categories, however, it does not necessarily qualify for the\nstate secrets privilege; its disclosure must also pose some risk o f harming\nthe national security. As the Supreme C ourt stated in United States v.\nReynolds, 345 U.S. 1, 10 (1953), the Government must\nsatisfy the court, from all circumstances o f the case, that there is\na reasonable danger that compulsion o f the evidence will expose\nmilitary matters which, in the interest o f national security,\nshould not be divulged.\nThe lower courts have also required the Government to dem onstrate a\nreasonable danger that the disclosure o f such information would be\ndetrimental to the national security. See, e.g., Jabara v. Kelley, 75 F.R .D .\n475, 483, 489, 492 (E.D. Mich. 1977); Kinoy v. Mitchell, 57 F.R .D . 1, 9\n(S.D.N.Y. 1975). See also 8 Wigmore, Evidence \xc2\xa7 2212a at 159\n(McNaughton rev. 1961).\n91\n\n\x0cIn our view, properly classified material would satisfy these two\nseparate criteria. Section 1-301 o f Executive Order No. 12065 prohibits\nthe classification o f inform ation unless it concerns:\n(a) military plans, weapons, or operations;\n(b) foreign government inform ation;\n(c) intelligence activities, sources or methods;\n(d) foreign relations or foreign activities o f the United\nStates;\n(e) scientific, technological, or economic matters relating to\nthe national security;\n(0 United States Governm ent programs for safeguarding\nnuclear materials or facilities; or\n(g) other categories o f inform ation which are related to na\xc2\xad\ntional security and which require protection against unauth\xc2\xad\norized disclosure as determined by the President, by a person\ndesignated by the President pursuant to Section 1-201, or by\nan agency h ea d .1\nSince all these m atters appear to be encompassed by the state secrets\nprivilege\xe2\x80\x94material relating to military affairs, international relations, or\nthe national security\xe2\x80\x94it seems that the first requirement o f the state\nsecrets privilege is met.\nProperly classified inform ation would also appear to meet the second\nrequirement o f the state secrets privilege\xe2\x80\x94i.e., whether there is a reason\xc2\xad\nable danger that disclosure would be detrim ental to the national security.\nSection 1-302 o f the order provides that, even though inform ation may\nsatisfy the criteria set forth in section 1-301, it may not be classified unless\n\xe2\x80\x9c unauthorized disclosure reasonably could be expected to cause at least\nidentifiable damage to the national security.\xe2\x80\x9d If this determination is\nproperly made, the inform ation would, in our view, satisfy the criteria for\nthe state secrets privilege.\nRegarding the question o f inform ants, we believe that, where the iden\xc2\xad\ntities (or inform ation that would disclose the identities) o f national secu\xc2\xad\nrity inform ants has been properly classified, the state secrets privilege may\nbe asserted with regard to such inform ation. For example, in Pan\nAmerican World Airways, Inc. v. A etna Casualty and Surety C o., 368 F.\nSupp. 1098, 1140-41 (S.D .N .Y . 1973), a ff\xe2\x80\x99d 505 F. (2d) 989 (2d Cir.\n1974), the court upheld a claim o f privilege based on the Central Intelli\xc2\xad\ngence Agency\xe2\x80\x99s (CIA) representation that the disclosure o f the identity o f\nits sources could result in a loss o f inform ation to the CIA and in serious\nphysical danger to the sources. Similarly, in United States v. American\nTelephone and Telegraph Co., 419 F. Supp. 454, 457 (D .D .C . 1976),\nremanded fo r further efforts at negotiation, 551 F. (2d) 384, 388 (D.C.\n\n' Section 6-104 o f the Executive order defines the term \xe2\x80\x9c national security\xe2\x80\x9d as the \xe2\x80\x9c na\xc2\xad\ntional defense and foreign relations o f the U nited States.\xe2\x80\x9d\n\n92\n\n\x0cCir. 1976), remanded fo r further efforts at accommodation, 567 F. (2d) 121\n(D.C. Cir. 1977), the Government was concerned whether disclosing the\nidentity o f our counteragents would diminish their usefulness or even en\xc2\xad\ndanger their lives. This was only one o f several concerns advanced by the\nGovernment. While neither the district court nor the circuit court inde\xc2\xad\npendently evaluated these concerns, both courts concluded that legitimate\nnational security considerations were at stake in the Executive\xe2\x80\x99s withholding\no f information from the Congress, thus indicating that the identity o f infor\xc2\xad\nmants may be a legitimate national security concern.\nAlthough properly classified inform ation is generally entitled to the pro\xc2\xad\ntection o f the privilege for state secrets, the fact that inform ation is properly\nclassified does not, in itself, require the assertion o f the state secrets privi\xc2\xad\nlege. Rather, the D epartm ent\xe2\x80\x99s decision to assert the privilege is to be made\non a case-by-case basis, taking into account not only the sensitivity o f the\ninformation, but also factors not considered in the classification process\nsuch as the public interest in releasing the inform ation in the context o f par\xc2\xad\nticular litigation and the effect which invoking the privilege would have on\nits long-term viability. Cf. Executive Order No. 12065, \xc2\xa73-303 (recognizing\nthat the need to protect properly classified information may be outweighed\nby the public interest in disclosure o f the inform ation). Moreover, the\ncourts have insisted that the privilege must be formally claimed by the head\no f the departm ent that has control over the inform ation, after actual per\xc2\xad\nsonal consideration by that official. United States v. Reynolds, supra, at\n7-8; Jabara v. Kelley, supra, at 487-88; Kinoy v. Mitchell, supra, at 8. A\nrepresentation that the inform ation is classified is not sufficient; the courts\nalso require representations that the criteria o f the state secrets privilege are\nmet and require sufficient additional inform ation in order to make an in\xc2\xad\nformed judgm ent as to the merits o f the claim. See, Kinoy v. Mitchell,\nsupra, at 9-10; 8 Wigmore, Evidence \xc2\xa7 2379, at 810 (M cNaughton rev. 1961)\n(\xe2\x80\x9c the government must make a showing supporting its plea o f privilege\xe2\x80\x9d ).\nA proposed assertion o f the state secrets privilege would normally thus\ncause two different sorts o f review o f the inform ation at issue. First, review\xc2\xad\ning the information and preparing the requisite representations should en\xc2\xad\ntail a reevaluation o f the sensitivity of the inform ation within the govern\xc2\xad\nment and an assessment o f the propriety o f invoking the privilege. See 2\nWeinstein Evidence \xc2\xa7 509[04], at 509-3 (1977). Second, before it may ac\xc2\xad\ncept the claims, the court is also obliged to satisfy itself that the invoking o f\nthe privilege is appropriate. United States v. Reynolds, supra, at 9-11;\nJabara v. Kelley, supra, at 484, 491.\nYour second question addresses the issue whether the state secrets\nprivilege may be asserted concurrently with other claims o f privilege for\nthe same inform ation. Although we have been unable to find any court\ndecision on p o int,2 we see no reason why two separate privileges may not\n\n' Several decisions, however, have recognized that the concerns underlying different privi\xc2\xad\nleges may arise with respect to the same inform ation or docum ent. Machin v. Zuckert, 316 F.\n(2d) 336, 339 (D .C. Cir. 1963); Jabara v. Kelley, 62 F.R .D . 424, 425, 431 (E .D . Mich. 1974).\n\n93\n\n\x0cbe asserted with respect to the same inform ation. The foundation for all o f\nthe G overnm ent\xe2\x80\x99s privileges is, ultimately, the public interest. In our view,\nthe public interest could only be properly served if, in a situation where the\nconcerns underlying a particular piece o f inform ation relate to two or\nmore o f the Governm ent\xe2\x80\x99s privileges, all o f those concerns were addressed\nbefore a decision is made to release the inform ation. The Government\nshould thus be able to assert all available privileges in order that a court\nmay make an informed judgm ent whether the public interest would actu\xc2\xad\nally be served by disclosure.\nThis conclusion is supported by other aspects o f the law. The general\npolicy o f the law is to allow for alternate or multiple claims or defenses in\ncivil litigation. See Fed. R. Civ. Proc. 8(e). In fact, in the analogous con\xc2\xad\ntext o f Freedom o f Inform ation litigation, the Government frequently\nclaims that inform ation is exempt from disclosure under two or more ex\xc2\xad\nemptions (which are themselves often founded on common-law\nprivileges). See, e.g., Weissman v. CIA, 565 F. (2d) 692 (D.C. Cir. 1977).\nWe thus believe that, if the state secrets privilege and another privilege are\nboth legitimately applicable, the Governm ent as a legal m atter may assert\neach o f them at the same time. W hether it should actually do so is, o f\ncourse, a judgm ent that must be made in each case by the attorneys in\ncharge o f the case.3\nJ o h n M . H a rm o n\n\nAssistant A ttorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x99 This determ ination might be based on both the relative weight o f the privileges and the\nease in which they may be asserted. For example, even though the inform er\xe2\x80\x99s privilege is a\nqualified one, see, Roviaro v. United States, 353 U.S. 53 (1957), and may thus afford the in\xc2\xad\nform ant\xe2\x80\x99s identity less protection than the state secrets privilege, it might also be less burden\xc2\xad\nsome to assert. While there is some contrary authority, it appears that the privilege need not\nbe asserted by the head o f the agency, but may be advanced by any appropriate represent\xc2\xad\native o f the Governm ent. See, Kinoy v. Mitchell, supra, at 11 n. 36; M cCorm ack, Evidence\n\xc2\xa7 111, at 237 (1972). Cf., Bocchicchio v. Curtiss Publishing Co., 203 F. Supp. 403, 406 n. 7\n(E .D . Pa. 1962). But see, Mitchell v. Bass, 252 F. (2d) 513, 516'(8th Cir. 1958); Fowler v.\nfVirtz, 34 F.R .D . 20, 23 (S.D. Fla. 1963).\n\n94\n\n\x0c"


b'June 2 3 , 1978\n\n78-35\n\nMEMORANDUM OPINION FOR THE GENERAL\nCOUNSEL, CIVIL SERVICE COMMISSION\nVeterans Preference Act (5 U.S.C. \xc2\xa7\xc2\xa7 2108,\n3309-3320)\xe2\x80\x94 Dependents\xe2\x80\x94 Preference\xe2\x80\x94 Foreign\nInstallations\n\nThis responds to your predecessor\xe2\x80\x99s request for our opinion as to the legality\nof certain Department of Defense (DOD) hiring practices in foreign-area\ninstallations.\nOur understanding of the relevant facts is as follows: In 1972, the Civil\nService Commission promulgated 5 CFR \xc2\xa7 213.3106(b)(6). This excepted jobs\nin DOD foreign-area installations from the competitive service when filled by\ndependents of DOD personnel. It was issued under the Commission\xe2\x80\x99s general\nauthority to except positions from the competitive service \xe2\x80\x9c when it determines\nthat appointments thereto through competitive examinations are not practica\xc2\xad\nble.\xe2\x80\x9d 5 CFR \xc2\xa7 6.1.\nIn these foreign-area installations DOD extends a preference in hiring to\ndependents of DOD personnel over other applicants. Some are hired in regular\nDOD civilian positions. Others, however, are hired pursuant to an arrangement\nbetween the Federal Republic of Germany and the United States. This\narrangement is based upon a North Atlantic Treaty Organization Status of\nForces Agreement (NATO SOFA\xe2\x80\x94 4 UST 1792, Art. IX, Par. 4), which\nprovides that U.S. forces operating in other NATO countries may hire from the\nlocal civilian population in accordance with the laws of the receiving country,\ni.e., the country in which the U.S. forces are present. Persons so hired are\ncalled \xe2\x80\x9c local nationals.\xe2\x80\x9d Germany claims that certain treaty agreements entitle\nGerman local nationals to fill a specified number of these positions. However,\nall of these positions designated for local nationals are not so filled. Germany\nhas permitted some local national positions to be filled by dependents in\ndeference to the needs of DOD personnel and their families. Unless dependents\n(primarily wives of DOD personnel) are provided jobs to supplement the\nearnings of the family unit, DOD personnel could in many cases not afford to\nhave their families accompany them abroad. In this regard, the State Depart\xc2\xad\nment states \xe2\x80\x9c that as a matter of practice and not of written agreement the\n139\n\n\x0cFederal Republic of Germany willingly acquiesces in the United States forces\nin Germany employing its dependents for jobs designated, under NATO SOFA,\nfor foreign national occupancy.\xe2\x80\x9d DOD contends that attempts to fill these local\nnational positions with persons other than dependents may result in the\nwithdrawal of these positions from U.S. control.\nFurthermore, we have been advised that the number of local national\npositions filled by dependents is approximately 5,659. Of these, about 5,449\nare in Germany. As for dependents in regular DOD positions, they number\napproximately 5,680. Of these, about 4,051 are in Germany. The regular DOD\npositions can be filled with persons other than dependents with no danger of\nreversion to local nationals because these positions are not subject to foreign\ncontrol.\nAs we understand it, a number of U.S. veterans residing in these foreign\nareas, particularly Germany, have complained that the dependent-preference\nhiring arrangement fails to take the Veterans Preference Act, 5 U.S.C.\n\xc2\xa7\xc2\xa7 2108, 3309-3320, into account. Under that Act \xe2\x80\x9c preference eligibles\xe2\x80\x9d 1\nare entitled to have 5 or 10 points2 added to their employment-evaluation\nrating.\nIn this factual setting, the basic inquiry is whether DOD\xe2\x80\x99s practice of hiring\ndependents in foreign-area installations violates the Veterans Preference Act.3\nSpecifically, three questions are presented. The principal question is whether,\nin light of 5 U.S.C. \xc2\xa7 3320, the Civil Service Commission had authority to\npromulgate 5 CFR \xc2\xa7 213.3106(b)(6). Secondly, what effect, if any, does \xc2\xa7 106\nof Public Law 92-129, 85 Stat. 355, have on the Veterans Preference Act?\nFinally, do NATO SOFA and working arrangements under that agreement\nsupersede the Veterans Preference Act? For the reasons that follow, we\nconclude that the Veterans Preference Act is applicable to these positions; we\nare of the opinion, however, that the Commission may properly excuse\napplication of that Act to the local national positions filled by dependents\nshould it find that such application would not benefit preference eligibles.\nWe now turn to the question whether \xc2\xa7 106 of Public Law 92-129 supports\nthe extension of an employment preference to dependents in our overseas\ninstallations. As stated above, in 1972 the Commission excepted positions in\nforeign area installations from the competitive service so long as they were\n\'T he term \xe2\x80\x9c preference elig ib le,\xe2\x80\x9d as defined in 5 U .S .C . \xc2\xa7 2108(3), includes veterans who have\nserved on active duty in the Arm ed Forces under certain conditions that need not be listed here. And\nin some cases the spouses and m others o f these veterans are also preference eligibles.\n2W hile m ost preference eligibles are entitled to a 5-point preference, others receive a 10-point\npreference. T his latter group consists prim arily o f veterans with service-connected disabilities, and\nin some cases their spouses and m others. A lso, certain surviving spouses and mothers of\nindividuals who lost their lives in m ilitary service to this country qualify for the 10-point\npreference. See 5 U .S .C . \xc2\xa7\xc2\xa7 2108(3)(c)-(g), 3309.\n3A lthough D OD adm its that dependents are given preference over nondependents, it states that\nwithin the fram ew ork o f its dependent hiring policy, dependents who are also veterans are given\npreference as against veterans w ho are not dependents. But DOD does not, and indeed could not,\nreasonably, contend that this procedure com ports with the requirem ents o f the V eterans Preference\nAct. Rather, it contends that \xc2\xa7 106 o f Public Law 92-129, discussed infra, renders the Veterans\nPreference Act inoperative in these overseas appointm ents that involve dependents.\n\n140\n\n\x0cfilled by dependents of DOD personnel stationed in the area. This exception\nwas granted, in large part, on the assumption that \xc2\xa7 106 of Public Law 92-129\nwas intended to create a dependent\xe2\x80\x99s preference in foreign countries. We do not\nbelieve that Congress intended such a preference. That section reads, in\npertinent part, as follows:\nUnless prohibited by treaty no person shall be discriminated against\nby the Department of Defense . . . in the employment of civilian\npersonnel at any facility or installation operated by the Department of\nDefense in any foreign country because such person is a citizen of the\nUnited States or is a dependent of a member of the Armed Forces of\nthe United States . . . .\nThe purpose of \xc2\xa7 106 is explained in its legislative history. The conference\nreport states:\nThe Senate version contained a provision prohibiting job discrimina\xc2\xad\ntion against American citizens and their dependents in hiring on\nUnited States military bases in any foreign country.\nThe House bill contained no such provision. The purpose of the\nSenate provision is to correct a situation which exists at some foreign\nbases, primarily in Europe, where discrimination in favor of local\nnationals and against American dependents in employment has\ncontributed to conditions of hardships for families of American\nenlisted men whose dependents are effectively prevented from\nobtaining employment. [H. Rept. No. 92-433, 92d Cong., 1st sess.\n31 (1971)]\nThe Senate report states:\nThe purpose of this amendment is to correct a situation which\nexists primarily on some American bases in Europe. In some cases,\ndiscrimination in favor of local nationals and against American\ndependents in employment has helped create conditions of poverty\nfor families of American enlisted men. [S. Rept. No. 92-93, 92d\nCong., 1st sess. 23 (1971)]\nFinally, the Senate hearing with respect to \xc2\xa7 106 also addresses the problem.\nSenator Schweiker commented on some problems facing U.S. military person\xc2\xad\nnel stationed in Germany who have financial difficulty in bringing their wives\nto live with them. In a colloquy with then-Secretary of Defense Laird, Senator\nSchweiker stated:\nOne other inequity . . . is that the wife who does get over there mainly\non a loan that the GI floats, and then rents whatever quarters is\navailable, which isn\xe2\x80\x99t very much for that money, is then in a position\nwhere she can\xe2\x80\x99t take a job because under the Status of Forces Treaty\nobligations we are not permitted to let our nationals work at certain\nkinds of positions . . . . [W]e have our GI with a wife that he is trying\nto support on a poverty level, and we don\xe2\x80\x99t even let her work under\nthe Status of Forces Agreement . . . . [I]t makes my blood boil a little\nbit when I see the way we are being treated by some of our allies over\n141\n\n\x0cthere when they deny employment to the wives of Gls who just want\nthe right to be with their husbands, something that every other citizen\nin Europe has at that time. I would appreciate if you would consider\nlooking into amending that Status of Forces Agreement so that our\nG ls\xe2\x80\x99 wives are not discriminated against.4 [Selective Service and\nMilitary Compensation: Hearings on S. 392, S. 427, S. 483, S.J.\nRes. 20, S. 494, S. 495, and S. 496 before the Senate Committee on\nArmed Services, 92d Cong., 1st sess. 46-47 (1971)]\nWe are of the opinion that \xc2\xa7 106 was not intended to create a preference for\ndependents over other American citizens in DOD foreign-area \xe2\x80\x98installation\nhiring. Its plain language prohibits discrimination against U.S. citizens and\nArmed Forces dependents. It, thus, evinces an intent to extend protection\nagainst discrimination to all U.S. citizens and Armed Forces dependents. The\nlanguage permits no reasonable inference that any subgroup of the protected\nclass was to enjoy benefits over any other subgroup. And the above quoted\nexcerpts from \xc2\xa7 106\xe2\x80\x99s legislative history clearly show that the statute was\ndesigned to protect U.S. citizens and dependents against discrimination in favor\nof local nationals. Thus, neither the language nor the legislative history of the\nsection reveals a congressional intent to establish hiring preferences among U.S.\ncitizens.\nNeither the section nor its legislative history mentions the Veterans\nPreference Act. Accordingly, any contention that \xc2\xa7 106 partially repealed that\nAct must rest on the argument that it was repealed by implication. It is a\nfamiliar principle of statutory construction that repeals by implication are\ndisfavored. When two statutes are capable of coexistence, each must be\nregarded as effective absent a clearly expressed congressional intention to the\ncontrary. Administrator, FAA v. Robertson, 422 U.S. 255 (1975); Morton\nv. Mancari, 417 U.S. 535 (1974). Any repeal intention must be clear and\nmanifest. Morton v. Mancari, 417 U.S. at 551. There is no expression of\ncongressional intention that the Veterans Preference Act was to be affected in\nany way and it is reasonably possible to read the two statutes compatibly. For\nthese reasons we believe that \xc2\xa7 106 was not designed to alter the application of\nthe Veterans Preference Act.\nII.\nAnother question asked is whether the Commission was authorized to\npromulgate 5 CFR \xc2\xa7 213.3106(b)(6) in the face of 5 U.S.C. \xc2\xa7 3320. That\nstatute reads as follows:\nThe nominating or appointing authority shall select for appoint\xc2\xad\nment to each vacancy in the excepted service in the executive branch\n4W e note that Senator S chw eiker\xe2\x80\x99s com m ents did not reflect an intent that the legislation under\nconsideration in the hearings would have any effect on N A TO SOFA. He merely requested\nSecretary Laird to look into the problem o f NA TO S O F A \xe2\x80\x99s im pact on em ploym ent opportunities\nfor w ives o f Armed Forces personnel. M oreover, \xc2\xa7 106 expressly disclaim s any intent to alter any\ntreaty obligation.\n\n142\n\n\x0cand in the government of the District of Columbia from the qualified\napplicants in the same manner and under the same conditions\nrequired for the competitive service by sections 3308-3318 of this\ntitle. This section does not apply to an appointment required by\nCongress to be confirmed by, or made with the advice and consent\nof, the Senate.\nWe note preliminarily that all 5 CFR \xc2\xa7 213.3106(b)(6) purports to do is place\nthe dependent positions in Schedule A of the excepted service. In our opinion,\n5 U.S.C. \xc2\xa7 3320 makes it clear that the Veterans Preference Act applies to the\nexcepted service as well as the competitive service. Therefore, merely placing\npositions in the excepted service does not remove them from coverage of the\nAct. And as we have discussed above, there is no statutory authority in this case\nfor a Veterans Preference Act exemption.5\nFor these reasons we are of the opinion that the Veterans Preference Act\napplies to those dependent positions filled under routine DOD appointing\nauthority. Thus, the approximately 5,680 positions in this category must be\nfilled in accordance with that Act, and any preference eligible applying for such\na position must be accorded the benefit of that Act.\nIII.\nFinally, we turn to the question whether the Veterans Preference Act must\nbe applied to those local national positions filled by dependents pursuant to an\ninformal agreement between the United States and the Federal Republic of\nGermany. The specific issue presented is whether an international agreement\nratified by the Senate, in this instance, the NATO SOFA, and working\narrangements under that agreement, take precedence over the Veterans\nPreference Act? We have, however, been informed by representatives of the\nGeneral Counsel at both the Defense and State Departments that NATO\nSOFA\xe2\x80\x99s exemption from U.S. employment laws6 applies only to foreign local\nnationals. Thus, they implicitly concede that there is no conflict between\nNATO SOFA and the Veterans Preference Act.\nThis, however, does not dispose of the question of whether the Commission\nmust enforce that Act where dependents conditionally occupy local national\npositions. The facts presented indicate that any attempt to fill these positions\nwith persons other than dependents of U.S. forces personnel will result in\nGermany\xe2\x80\x99s insistence that the positions revert to German local nationals.\nHence, such a result would make application of the Veterans Preference Act a\n\n5The Com m ission has indicated that it intends to term inate the exception o f \xc2\xa7 213.3106(b)(6).\nWhile we do not believe this exception serves to excuse the requirem ents o f the Veterans\nPreference A ct, we note that \xe2\x80\x9c (t]he Com m ission may rem ove any position from or may revoke in\nwhole or in part any provision of Schedule A , B , or C ." Com m ission Rule V I, 5 CFR \xc2\xa7 6.6.\n6NATO SOFA (4 U ST 1792, 1810) provides that the laws of the receiving State shall be\nfollowed when U .S . forces o r civilian com ponents hire \xe2\x80\x9c local civilian labour.\xe2\x80\x9d Neither the State\nD epartm ent nor D OD contends that these laws apply when U .S . citizens are placed in positions\ndesignated for local national occupancy.\n\n143\n\n\x0chollow victory for veterans since they would not be allowed to occupy these\npositions.\nThe Veterans Preference Act is not indifferent to circumstances that might\nwarrant selection of persons other than preference eligibles, even where the\npreference eligible has the highest rating of all job applicants. An appointing\nofficer may pass over a preference eligible and select a nonpreference eligible if\nthe reasons for so doing are stated in writing, and if the Commission finds such\nreasons to be sufficient. 5 U.S.C. \xc2\xa7 3318(b). That section makes it plain that\nthe Commission is the ultimate authority on the decision whether the reasons\nfor passing over a preference eligible are sufficient.7 Your predecessor stated\nthat the Commission tentatively concluded that the Veterans Preference Act\nshould not apply to the local national positions.\nIf the Commission decides that application of the Veterans Preference Act\nwould not result in jobs in local national positions for veterans, and that this\nconstitutes a sufficient reason to pass over preference eligibles, we believe that\ndecision would be within the scope of the Commission\xe2\x80\x99s authority.8\nIn sum, we believe that the Veterans Preference Act applies to overseas\npositions, and that there is no legal justification for excusing its application to\nregular DOD appointments. However, we think that the Commission is\nempowered to excuse its application to U.S. citizens filling the local national\npositions for the reasons stated herein.\nWe trust that this fully responds to your questions.\nLarry\n\na\n\n. H\n\nammond\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n1See also S. Rept. No. 679, 83d C o n g ., 1st sess. 2 (1953), which m akes it clear that the\nCom m ission has final authority in these decisions.\n8A lthough \xc2\xa7 3318(b) speaks in term s o f passing over preference eligibles in individual\nappointm ents, we see no reason why the C om m ission m ay not grant a blanket pass over to cover a\nclass o f appointm ents involving sim ilar situations, and having a com m on sufficient reason.\nFurther authority for such an exem ption m ay be found in 5 CFR \xc2\xa7 3 0 2 .101(c), which provides in\npertinent part:\n. . . each agency shall follow the principles o f veteran preference as far as administratively\nfeasible. . . .\nH ow ever, in the case o f the local national positions it is arguable that it would not be\n\xe2\x80\x9c adm inistratively feasible\xe2\x80\x9d to apply the V eterans Preference Act since such application would not\nresult in jo b s for veterans.\n\n144\n\n\x0c'


b'Application of Conflict of Interest Rules to Members of\nDepartment of Health and Human Services Advisory Committee\nN e ith e r th e la w n o r th e D e p a rtm e n t o f H e a lth a n d H u m a n S e rv ic e s \xe2\x80\x99 S ta n d a rd s o f C o n d u c t\nc o n stra in a m e m b e r o f th e A d v iso ry C o u n c il o n S o c ia l S e c u rity fro m lo b b y in g th e D e p a r t\xc2\xad\nm e n t o n b e h a lf o f p riv a te c lie n ts w ith re s p e c t to p o lic y is su e s th a t a re b e in g a d d re s s e d b y\nth e C o u n c il. W h e th e r to re ta in th e p ru d e n tia l re s tric tio n s b a rrin g s u c h lo b b y in g th a t h a v e\nb e e n im p o s e d b y th e D e p a rtm e n t\xe2\x80\x99s e th ic s o ffic ia l is a d is c re tio n a ry is su e fo r th e S e c re ta ry .\xe2\x80\x9d\n\nApril 13, 1990\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nD e p a r t m e n t o f H e a l t h a n d H u m a n S e r v ic e s\n\nThis responds to your request for advice on what ethics constraints apply\nto members of the Department of Health and Human Services\xe2\x80\x99 (\xe2\x80\x9cDepart\xc2\xad\nment\xe2\x80\x9d) 1989 Advisory Council on Social Security (\xe2\x80\x9cCouncil\xe2\x80\x9d). Specifically,\nyou wish to know whether it is lawful for Council members to lobby the\nDepartment on behalf of private clients with respect to policy issues that are\nbeing addressed by the Council. We believe that it is. Neither the law nor\nthe Department\xe2\x80\x99s Standards of Conduct constrain a member from lobbying\nthe Department on policy issues that are subject of Council discussions.\nWhether to retain the prudential restrictions barring such lobbying that have\nbeen imposed by the Department\xe2\x80\x99s ethics official is a discretionary issue for\nthe Secretary.\n\nI. Background\nThe Council is a statutory federal advisory committee whose members\nare appointed by the Secretary. 42 U.S.C. \xc2\xa7 907; 5 U.S.C. app. I. It is\nreviewing a wide range of Social Security programs, including the provision\nof old-age, disability and mandatory health insurance. Council members are\nspecial government employees since they will serve less than 130 days a\nyear. 18 U.S.C. \xc2\xa7 202(a).\n\' E ditors N ote: T h is o p in io n w as originally w ritten using an o u t-o f-date version o f sections 203 and\n205 o f title 18. T h is p u b licatio n o f the opinion reflects rev isio n s based on the N ovem ber 1989 am e n d \xc2\xad\nm ents, but those a m en d m en ts w ere m inor and the substance o f the op inion is unchanged.\n\n79\n\n\x0cOne of the Council\xe2\x80\x99s members is a private sector lobbyist. Business cli\xc2\xad\nents hire her to present their views to the Department on many of the same\npolicy issues that the Council is examining. You have asked whether the\nmember may continue to lobby the Department on those policy issues not\xc2\xad\nwithstanding her membership on the Council. We believe that, as a legal\nm atter she may.\n\nThere are two statutory provisions that govern the conduct of special\ngovernment employees in this context \xe2\x80\x94 18 U.S.C. \xc2\xa7\xc2\xa7 203 and 205. Sec\xc2\xad\ntion 203 bars special government employees from receiving compensation\nfor representational activities before an agency in relation to any particular\nmatter involving a specific party or parties in which they have participated\npersonally and substantially and in which the United States is a party or has\na substantial interest. 18 U.S.C. \xc2\xa7 203(c)(1).1 Similarly, section 205 bars\nspecial government employees from acting as agents for claims against the\nUnited States or as agents in any particular matter pending before a depart\xc2\xad\nment involving a specific party or parties in which they have participated\npersonally and substantially and in which the United States is a party or has\na direct and substantial interest.2\nWe do not believe that lobbying on policy issues, such as the position the\nDepartment should take on mandatory health care, involves a \xe2\x80\x9cparticular\n1S e c tio n 2 0 3 p ro v id e s, in relevant p art:\n(a ) W h o ev er, o th erw ise than as p ro v id ed by law fo r the p ro p e r d ischarge o f official d u ties\n(1 ) . . . re c eiv es . . . any co m p e n sa tio n fo r any services rendered o r to be rendered\ne ith e r by h im s e lf o r another \xe2\x80\x94\n( B ) . . . at a tim e when su ch person is an o ffice r o r em ployee o f the U nited S tates . . .\nin re la tio n to an y . . . particular m atter in w hich th e U nited States is a party o r has a direct\nan d su b sta n tia l interest, befo re any dep artm en t [or] agency . . . shall be fined u n d e r this\ntitle o r im p riso n e d for not m o re than tw o y ears, o r both; and shall be incapable o f holding\nan y o ffice o f h onor, trust, o r p ro fit un d er th e U nited States.\n(b ) A sp ecial G overnm ent em p lo y e e shall be su b ject to subsection (a) only in relatio n to a\np a rtic u la r m a tte r involving a sp ec ific party o r p arties \xe2\x80\x94\n(1 ) in w h ich su ch em ployee h a s at any tim e p articip ated personally and sub stan tially as a\nG o v e rn m e n t em ployee or as a special G o v ern m en t e m ployee through d ecision, approval,\nd isa p p ro v a l, recom m endation, the rendering o f ad v ice, investigation o r o therw ise . . . .\n2 S e c tio n 205 states, in relevant part;\nW h o ev e r, b e in g a officer or e m p lo y e e o f th e U n ited States . . . otherw ise than in the p ro p e r\nd isch a rg e o f h is o fficial duties \xe2\x80\x94\n(1 ) acts as a g en t o r attorney fo r pro secu tin g any claim ag ain st the U nited S tates, or\n(2 ) acts as ag en t o r attorney fo r anyone b efo re any d e partm ent . . . [on any] p articu lar\nm a tte r in w h ic h th e U nited States is a party o r has a d irect and substantial interest \xe2\x80\x94\nS h a ll be fin e d not m ore than $ 1 0 ,0 0 0 o r im p riso n ed fo r not m ore than tw o years, o r both.\nA s p ec ia l G o v e rn m e n t em ployee shall be su b ject to the preceding paragraphs only in rela\xc2\xad\ntio n to a p a rtic u la r m atter in v o lv in g a specific party o r p arties (1) in w hich he has at an y tim e\np a rtic ip a te d p e rso n ally and su b stan tially as a G o v ern m en t em ployee o r as a special G o v e rn \xc2\xad\nm e n t e m p lo y e e th ro u g h decision, approval, d isap p ro v al, recom m endation, the rendering o f\nad v ic e, in v e stig atio n o r otherw ise . . . .\n\n80\n\n\x0cmatter involving a specific party or parties\xe2\x80\x9d as required by 18 U.S.C. \xc2\xa7\xc2\xa7 203\nand 205. General discussions between a lobbyist and a government em\xc2\xad\nployee of why one policy is preferable to another do not involve a specific\nparty or parties.\nThis conclusion is supported by the interpretation of the same \xe2\x80\x9cparticular\nmatter involving a specific party or parties\xe2\x80\x9d language in 18 U.S.C. \xc2\xa7 207,\nlanguage which this Office views as identical in meaning to that in sections\n203 and 205.3 The Office of Government Ethics regulations interpreting this\nphrase in 18 U.S.C. \xc2\xa7 207 state that discussions of policy matters do not\nconstitute participation in a \xe2\x80\x9cparticular matter involving a specific party or\nparties.\xe2\x80\x9d 5 C.ER. \xc2\xa7 2637.201(c)(1). The regulations provide:\nSuch a matter typically involves a specific proceeding affect\xc2\xad\ning the legal rights of the parties or an isolatable transaction\nor related set of transactions between identifiable parties.\nRulemaking, legislation, the formulation of general policy, stan\xc2\xad\ndards or objectives, or other action of general application is\nnot such a matter. Therefore, a former Government employee\nmay represent another person in connection with a particular\nmatter involving a specific party even if rules or policies which\nhe or she had a role in establishing are involved in the pro\xc2\xad\nceeding.\nThe examples given in the regulations illustrate that an em ployee\xe2\x80\x99s\nparticipation in the formulation of agency policy does not bar the employee\nfrom subsequently discussing the application of the policy with the agency\nafter he or she has left the government. Id. If, as the regulations make\nclear, policymaking is not a \xe2\x80\x9cparticular matter involving a specific party or\nparties,\xe2\x80\x9d then 18 U.S.C. \xc2\xa7\xc2\xa7 203 and 205 do not bar an employee from dis\xc2\xad\ncussing with Department personnel a policy on which he or she has worked.\nWe therefore believe that a Council member may participate in policy dis\xc2\xad\ncussions on the Council and lobby the Department on those same policy\nissues without violating 18 U.S.C. \xc2\xa7\xc2\xa7 203 or 205.\nThere are also Department regulations that impose additional constraints\non members of advisory committees. Standards o f Conduct , 45 C.F.R. pt.\n73. The regulations require Department employees to make every effort to\navoid negotiating with the Department for contracts or grants whose subject\nmatter is related to the subject matter of his or her consultancy. Id.* This\nId.\n\n5See M em o ran d u m for the S o licito r o f the Interior, from Sam uel A. A lito, Jr., D eputy A ssista n t A tto r\xc2\xad\nney G en eral, O ffice o f Legal C ounsel, Re: Scope o f the Term "Particular M atter" Under 18 U.S.C. 208\n(Jan. 12, 1987).\n\'T h e reg u latio n states, in relev an t part:\nTo a con sid erab le extent the prohibitions o f sections 203 and 205 are aim ed at the sale o f\ninfluence to g ain special fav o rs for p riv ate b usinesses and o th er o rganizations an d a t the\nC ontinued\n\n81\n\n\x0cregulation is inapplicable to the Council member\xe2\x80\x99s concern because she is\nnot involved in negotiating grants or contracts with the Department. She\nsimply wishes to bring the policy views of her clients to the Department\xe2\x80\x99s\nattention and to persuade the Department of their validity. As long as she\nlimits herself to this function, we are not aware of any Department regula\xc2\xad\ntion that would prevent her from acting.\nWe have also reviewed the memorandum prepared for Council members\nby the Department\xe2\x80\x99s ethics official.5 The DAEO Memorandum states:\nWe have consistently counseled advisory committee members\nin the Department to refrain from representing others before\nany component of the Department on issues pending before\nth e ir com m ittees, com m ission or council. W here the\ncom m ittee\xe2\x80\x99s charge is extremely broad, such as that of the\nAdvisory Council on Social Security, this advice may seem\nunduly restrictive in that it may require members to forego\nlobbying activities relating to a broad range of programs, in\xc2\xad\ncluding Medicare, Medicaid and other Social Security Act\nprograms. However, this prohibition is necessary [to avoid\nany appearance of impropriety].6\nThis advice prohibits the Council member\xe2\x80\x99s proposed lobbying activity be\xc2\xad\ncause she would be engaged in representational activities before various\nDepartm ent components regarding policy issues pending before the Council.\nThe Council member\xe2\x80\x99s lobbying of the Department policy issues pending\nbefore the Council is not prohibited by law or Department regulation. It is\nbarred by the DAEO Memorandum, which seeks as a matter of policy to\nensure that advisory committee members avoid any appearance of impropri\xc2\xad\nety. W hether to continue this policy is a matter of discretion, to be exercised\nultimately by the Secretary. He must decide, as a matter of judgment, whether\nthe DAEO Memorandum is indeed unduly restrictive in its impact on advi\xc2\xad\nsory committee members. If he or his designee believes that the DAEO\nMemorandum is too broad, the Department is free to impose a less onerous\n\n\'( ....c o n tin u e d )\nm isu se o f g o v ern m en tal position o r inform ation. In accordance w ith these aim s, a consult\xc2\xad\n\nant, even when not compelled to do so by sections 203 and 20S, should make every effort in\nhis o r her private work to avoid any personal contact with respect to negotiations fo r con\xc2\xad\ntracts o r grants with the component o f the department in which he or she is serving, i f the\nsubject m atter is related to the subject matter o f his or her consultancy or other service.\n4 5 C .F .R . \xc2\xa7 7 3 .7 3 5 -1003(b)(2) (em phasis added).\n3 M e m o ra n d u m fo r M em bers o f th e A dvisory C o u n cil on Social S ecurity, from Sandra H. Shapiro,\nA c tin g D e sig n a te d A g en cy Ethics O fficial (F eb. 9, 1990) ( \xe2\x80\x9cD A E O M em orandum \xe2\x80\x9d ).\n6Id. a t 2.\n\n82\n\n\x0cstandard based simply on the law and existing regulations. Once a judgment\nhas been made as to which standard to adopt, the decision can be conveyed\nto all advisory committee members, including those on the Council.\nWILLIAM P. BARR\nAssistant Attorney General\noffice o f Legal Counsel\n\n83\n\n\x0c'


b'Constitutionality of Enrolled Bill Restricting the\nWithdrawal of Public Land for National Defense\nThe constitutionality of an enrolled bill providing that withdrawals of public lands for national defense\npurposes shall not become effective until approved by act of Congress involves a question as to the\nrelationship between the President\xe2\x80\x99s constitutional powers as Commander in Chief and the constitutional authority of Congress over the public lands.\nThe exception that would make the enrolled bill\xe2\x80\x99s restrictions inapplicable in time of national\nemergency declared by the President may be adequate to resolve whatever doubt there may be as to\nthe constitutionality of the bill in favor of a conclusion that it makes sufficient provision for the\nexercise in time of national emergency of the President\xe2\x80\x99s powers as Commander in Chief.\n\nFebruary 24, 1958\n\nMEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL\nAs requested in your memorandum of February 20, 1958, there are submitted\nthe following comments on this enrolled bill \xe2\x80\x9c[t]o provide that withdrawals,\nreservations, or restrictions of more than five thousand acres of public lands of the\nUnited States for certain purposes shall not become effective until approved by\nAct of Congress, and for other purposes.\xe2\x80\x9d H.R. 5538, 85th Cong. (1957).\nThe bill presents a constitutional question which is not entirely free of doubt\nand to which it may be advisable to invite attention. It concerns the relationship\nbetween the powers of the President as Commander in Chief and the authority of\nCongress over the public lands.\nSection 1 of the bill would provide that, notwithstanding any other provisions\nof law, except in time of war or national emergency, hereafter declared by the\nPresident or by Congress on and after the date that the bill becomes law, its\nprovisions shall apply to the withdrawal and reservation for, restriction of, and\nutilization by, the Department of Defense for defense purposes of the public lands\nof the United States, including those in the Territories of Alaska and Hawaii.\nThere is a proviso to section 1 concerning the applicability of the bill to various\nclasses of federal lands and waters. I should prefer not to express any views\nrespecting the matters referred to in the first three subparagraphs in that proviso\nuntil I have the benefit of the comments of the Lands Division.\nThe fourth subparagraph in that proviso would except from sections 1, 2, and 3\nof the bill (a) those reservations or withdrawals which expired due to the ending of\nthe unlimited national emergency of May 27, 1941, and which have since been\nand are now used by the military departments with the concurrence of the\nDepartment of the Interior, and (b) the withdrawals of public lands for three\nspecified military facilities. The President in Proclamation 2487, dated May 27,\n1941, proclaimed the existence of an unlimited national emergency, 55 Stat. 1647,\n3 C.F.R 234 (1938\xe2\x80\x931943), and in Proclamation 2974, dated April 28, 1952,\n\n192\n\n\x0cConstitutionality of Enrolled Bill Restricting the Withdrawal of Public Land\n\ndeclared that such emergency was terminated that day upon the entry into force of\nthe Treaty of Peace with Japan, 66 Stat. C31, 3 C.F.R. 30 (Supp. 1952).1\nBy reference to the dates of these proclamations there can be ascertained the\notherwise unspecified military projects and facilities on reservations or withdrawals of public lands which would not be subject to sections 1, 2, and 3 of the bill.\nAccording to the conference report on the bill, the fourth proviso would exempt\nmilitary projects and facilities on 19 specific areas of public lands from the\nrequirement that Congress approve public land withdrawals in excess of 5,000\nacres. H.R. Rep. No. 85-1347, at 3 (1958).\nSection 2 of the bill would provide that no public land, water, or land and water\narea shall, except by Act of Congress, hereafter be (1) withdrawn from public\nentry for the use of the Department of Defense for defense purposes; (2) reserved\nfor such use; or (3) restricted from operation of the mineral leasing provisions of\nthe Outer Continental Shelf Lands Act, Pub. L. No. 83-212, 67 Stat. 462 (1953)\n(codified at 43 U.S.C. \xc2\xa7\xc2\xa7 1331\xe2\x80\x931343 (1958)), if such actions would result in the\nwithdrawal, reservation, or restriction of more than five thousand acres in the\naggregate for any one defense project or facility of the Department of Defense.\nSections 3 to 6, inclusive, of the bill concern matters as to which I prefer not to\nexpress any views until I have the benefit of any comments of the Criminal and\nLands Division. Accordingly, I now turn to the constitutional question.\nArticle II, Section 2, Clause 1 of the Constitution provides in pertinent part as\nfollows:\nThe President shall be Commander in Chief of the Army and Navy\nof the United States.\nArticle IV, Section 3, Clause 2 provides in relevant part as follows:\nThe Congress shall have Power to dispose of and make all needful\nRules and Regulations respecting the Territory and other Property\nbelonging to the United States.\nIn his memorandum of July 12, 1956,* commenting on H.R. 10362, 84th Cong.,\nand several other bills for the same general purposes, Assistant Attorney General\nRankin expressed the opinion that sections 1 and 2 thereof presented a serious\nconstitutional question which the courts have never passed on in regard to the\n1\nThis latter proclamation also provided that nothing therein shall be construed to affect Proclamation 2914, dated December 16, 1950, proclaiming that, because of communist imperialism, there exists\na national emergency, requiring the strengthening of the national defenses, and the continuance of\ncertain World War II measures respecting the use of certain property. 64 Stat. A454, A455, 3 C.F.R. 99\n(1949\xe2\x80\x931953).\n*\nEditor\xe2\x80\x99s Note: That memorandum is included earlier in this volume (Constitutionality of Pending\nBills Restricting the Withdrawal of Public Land for National Defense, 1 Op. O.L.C. Supp. 163 (July 12,\n1956)).\n\n193\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nPresident\xe2\x80\x99s power as Commander in Chief. He recommended that the Department\nreport that it was opposed to section 1 and 2 of those bills as imposing an unwarranted restriction upon the President\xe2\x80\x99s power to use the public domain for national\ndefense purposes, and as presenting a serious question regarding an unconstitutional restriction on the President\xe2\x80\x99s powers as Commander in Chief, Dep\xe2\x80\x99t of\nJustice File No. 90-1-01-65. It does not appear that the Department did so.\nThe judicial decisions and opinions of the Attorney General to which Mr.\nRankin referred generally concern the President\xe2\x80\x99s powers as Commander in Chief\nin time of war in which the United States is a belligerent, or of national emergency\nbecause of the existence of a state of war between other governments. It may be\nnoted that Mr. Rankin observed that the decisions have not made a clear demarcation of the boundaries of such powers.\nMr. Rankin\xe2\x80\x99s memorandum does not, however, refer to the majority per curiam\nopinion, in which Justice Reed concurred, that under Article IV, Section 3,\nClause 2 of the Constitution the power of Congress over the public lands is\n\xe2\x80\x9cwithout limitation,\xe2\x80\x9d Alabama v. Texas, 347 U.S. 272, 274 (1954) (per curiam),\nand the earlier decisions cited therein, including United States v. Midwest Oil Co.,\n236 U.S. 459, 474 (1915). The legislative reports on this bill show that these are\namong the decisions on which Congress relied to support the constitutionality of\nthe bill. See S. Rep. No. 85-857, at 10 (1957); H.R. Rep. No. 85-215, at 9 (1957).\nIt may be noted that the questions in Alabama v. Texas did not involve the\nPresident\xe2\x80\x99s power as Commander in Chief. Nevertheless, the views of a majority\nof the Court are expressed in such absolute terms as to make one reluctant to state\nthat the bill clearly infringes upon the President\xe2\x80\x99s constitutional powers as\nCommander in Chief.\nIn any views that the Department may submit on the bill, it would seem to be\nappropriate, however, to point out that it involves a question as to relationship\nbetween the President\xe2\x80\x99s constitutional powers as Commander in Chief, on the one\nhand, and the constitutional authority of Congress over the public lands, on the\nother hand. If so, it is suggested that attention also be invited to the exception in\nthe bill, which would make its restrictions on withdrawal or reservation of public\nlands for defense purposes inapplicable in time of national emergency hereafter\ndeclared inter alia by the President. This exception may be adequate to resolve\nwhatever doubt there may be as to the constitutionality of the bill in favor of a\nconclusion that it makes sufficient provision for the exercise in time of national\nemergency of the President\xe2\x80\x99s powers as Commander in Chief.\nFinally, it may be noted that the bill does not contain a separability provision.\nThere are returned the attachments to your memorandum.\nMALCOLM R. WILKEY\nAssistant Attorney General\nOffice of Legal Counsel\n\n194\n\n\x0c'


b"July 24, 1979\n\n79-55\n\nMEMORANDUM OPINION FOR THE\nASSISTANT TO THE PRESIDENT FOR\nDOMESTIC AFFAIRS & POLICY\nConstitutional Law\xe2\x80\x94Commerce Clause (Article I,\nSection 8, Clause 3)\xe2\x80\x94Constitutional Aspects of the\nProposed Energy Mobilization Board Legislation\n\nThe purpose o f this m em orandum is to expand on and to memorialize\nthis Office\xe2\x80\x99s legal advice to your staff regarding the A dm inistration\xe2\x80\x99s pro\xc2\xad\nposal to create an Energy Mobilization Board (Board).\nThe Board, to be established in the Executive Office o f the President,\nwould have three members appointed by the President with the advice and\nconsent o f the Senate. The B oard\xe2\x80\x99s central purpose would be to expedite\nthe completion o f designated \xe2\x80\x9c critical energy facilities\xe2\x80\x9d \xe2\x80\x94projects in\xc2\xad\ntended to reduce the N ation\xe2\x80\x99s reliance on imported oil.\nExpedition would be achieved by the B oard\xe2\x80\x99s establishment o f a Project\nDecision Schedule (Schedule), setting a timetable for all Federal, State,\nand local decisionmaking required for the completion and operation o f a\ncritical energy facility (CEF). Should any agency fail to render a decision\nwithin the set time, the Board itself would then make the decision, apply\xc2\xad\ning the Federal, State, or local law that the supplanted agency would have\napplied. In establishing the Schedule, the Board would be authorized to\nwaive any Federal, State, and local procedural decisionmaking re\xc2\xad\nquirements, such as those relating to the methods of decisionmaking and\ntiming. While no substantive environmental and other standards could be\nchanged, the Board would be authorized to either (1) designate a lead\nagency to prepare a single comprehensive environmental impact statement\n(EIS) for a CEF, or (2) waive Federal, State, and local EIS requirements\nand adopt another m ethod o f evaluating the environmental impact o f a\nCEF. The Board would also be authorized to waive Federal, State, and\nlocal laws and regulations enacted or promulgated after the commence\xc2\xad\nment o f construction o f a critical energy facility if the new requirement\nhindered its expeditious completion and if grant o f a waiver would not u n \xc2\xad\nduly endanger public health or safety.\n301\n\n\x0cThe A dm inistration\xe2\x80\x99s proposal also seeks to expedite the completion of\nCEFs by limiting and expediting judicial review, because the Board deci\xc2\xad\nsion designating CEFs and establishing Schedules would not be subject to\nreview. All other actions would be subject to review only in a Federal court\no f appeals. Parties challenging agency action would have 60 days from the\ncompletion o f the permit process to bring suit unless the Board determines\nthat earlier review is necessary in order to expedite completion o f the proc\xc2\xad\ness or to ensure fairness. In reviewing Board and agency decisions, the\ncourts o f appeal would apply the appropriate Federal, State, and local\nsubstantive law.\nThe proposal raises constitutional questions o f first impression, and our\nmem orandum addresses these issues.\nI. The B oard\xe2\x80\x99s Decisionmaking Authority\nThe purpose o f the legislation is to expedite completion o f energy proj\xc2\xad\nects designed to reduce national dependence on foreign sources o f oil. Ef\xc2\xad\nfectuation o f the im portant national interests o f reducing oil imports and\nincreasing domestic energy production is within Congress\xe2\x80\x99 broad power\nunder the Commerce Clause o f the Constitution, Article I, Section 8,\nClause 3. The Supreme C ourt has, however, recognized limits on the exer\xc2\xad\ncise o f congressional power under the Commerce Clause when legislation\ninterferes with traditional state functions. See, National League o f Cities\nv. Usery, 426 U.S. 833 (1976). The proposal is subject to challenge on this\nground because it empowers the Board to: (1) set decision schedules bind\xc2\xad\ning on State and local agencies; (2) waive State and local procedural\ndecisionmaking requirements; and (3) supplant State and local decision\xc2\xad\nmakers. We treat these questions seriatim.\nA. Scheduling\nU nder the proposal, all State and local agencies would be required to\nforward to the Board a proposed timetable for actions related to approval\no f a CEF and the Board then sets a deadline for each decision. In cases of\n\xe2\x80\x9c exceptional national need,\xe2\x80\x9d this deadline could be shorter than the one\nset by State or local law.\nIt could be argued that Congress would exceed its power under the\nCommerce Clause by authorizing a Federal agency to make a decision.\nThis argument takes on force when one considers the possibility that such\ndecisions may be made by local units o f government\xe2\x80\x94e.g., town councils.\nIn National League o f Cities v. Usery, supra, the Court invalidated ex\xc2\xad\ntension o f the Fair Labor Standards A ct\xe2\x80\x99s (FLSA) minimum and max\xc2\xad\nimum hour standards to State and local governments. The C ourt\xe2\x80\x99s opin\xc2\xad\nion, written by Mr. Justice Rehnquist, held that the Federal requirements\nhad a significant impact upon the functioning o f State and local govern\xc2\xad\nments, compelling them to forego governmental activities and displacing\n302\n\n\x0clocal policies regarding the manner in which governmental services would\notherwise be supplied. Id., at 847-48. Thus, the extension was found to\n\xe2\x80\x9c impermissibly interfere with the integral governmental functions\xe2\x80\x9d of\nStates and localities. The Court concluded that \xe2\x80\x9c insofar as the challenged\namendments operate to displace the States\xe2\x80\x99 freedom to structure integral\noperations in areas o f traditional governmental functions, they are not\nwithin the authority granted Congress by Art. I, \xc2\xa7 8, cl. 3 .\xe2\x80\x9d Id., at 852.\nThe reasoning o f the C ourt provides the framework for analysis o f the\nconstitutionality o f the Adm inistration\xe2\x80\x99s proposal. It could be forcefully\nargued that local decisions on land use, health, and safety are traditional\nState functions and that Federal imposition o f deadlines is an impermissi\xc2\xad\nble intrusion in the decisionmaking process that \xe2\x80\x9c may substantially\nrestructure traditional ways in which local governments have arranged\ntheir affairs.\xe2\x80\x9d 426 U .S., at 849.\nNotwithstanding such contentions, we believe that the scheduling man- '\ndate o f the Board is not contrary to the holding in National League o f\nCities. First, the Court stressed the financial burden imposed by FLSA on\nStates and localities. Here, Congress would not be imposing a burden,\naltering fiscal policies, curtailing traditional State and local activities, or\nregulating the provision o f traditional services. The Federal Government\nwould not be directing local governing bodies to decide a matter in a par\xc2\xad\nticular way; localities would be free to grant or deny permits and licenses\npursuant to State and local standards. Nor would the Board require\nlocalities to perform a new function; it would simply set a deadline for a\ndecision that would otherwise be made at some time. Analytically, State\nand local decisionmakers and procedures would not be displaced because\nthere is no power in the Board to require such agencies to follow the\nSchedule. The Board could not, for example, seek injunctive relief to re\xc2\xad\nquire a State agency to meet the Schedule. Rather, the situation here is\nanalogous to several complex Federal regulatory programs, such as the\nClean Air Act discussed below, which set specific ground rules for State\naction and which provide for preemption by Federal agencies o f the State\nrole if those rules are not followed. Such programs have been sustained\nagainst constitutional challenges similar to those that we may anticipate\nwould be leveled against a statute enacting the A dm inistration\xe2\x80\x99s program.\nWe therefore believe that the Board may be empowered to set reasonable\ndeadlines for local decisions.\nMoreover, it should be noted that Mr. Justice Blackmun jointed the\nC ourt\xe2\x80\x99s opinion in National League o f Cities because it \xe2\x80\x9c adopts a balanc\xc2\xad\ning approach, and does not outlaw federal power in areas such as environ\xc2\xad\nmental protection, where the federal interest is demonstrably greater and\nwhere state facility compliance with imposed federal standards would be\nessential.\xe2\x80\x9d 426 U.S. at 856.\nWe believe that the balancing approach suggested by Mr. Justice\nBlackmun would sustain the authority o f Congress to empower the Board\nto determine State and local deadline. The seriousness o f the energy crisis\n303\n\n\x0cis apparent, and its impact on foreign policy, national security, and inter\xc2\xad\nnational monetary policy will, we assume, be the m ajor focus o f congres\xc2\xad\nsional deliberation concerning this proposal. A CEF may be designated\nonly if a project has been determined \xe2\x80\x9c to be critical in contributing to the\nreduction o f the nation\xe2\x80\x99s dependence upon imported oil or petroleum\nproducts;\xe2\x80\x9d and State and local deadlines may be shortened only \xe2\x80\x9c [i]n cir\xc2\xad\ncumstances o f exceptional national need.\xe2\x80\x9d We are persuaded that these in\xc2\xad\nterests will be sufficient to override a local agency\xe2\x80\x99s interest in deciding\nwhen to decide. The national interest in expedition seems strong enough to\novercome State and local decisionmaking processes that, Congress finds,\ndelay decisions necessary to the expeditious completion o f CEFs.\nB. Waiver o f State Procedures\nFor the reasons discussed above, we believe that the authority o f the\nBoard to waive State and local procedural requirements passes constitu\xc2\xad\ntional muster. Since substantive standards such as those regarding the en\xc2\xad\nvironment, land use, health, and safety are specifically excluded from a\nwaiver, there is no threat to the provision o f traditional State and local\nservices. Waivers impose no financial burden on the States or localities; if\nanything, they are likely to conserve State and local resources. Again, we\nbelieve that the critical national interest at stake outweighs State or local\ninterest in any particular decisionmaking procedures. O ur conclusion,\nhowever, is subject to two qualifications. First, the waiver power o f the\nBoard is subject to due process limitations. Since it is likely that private\nrights will be at stake when property is taken or a particular land use is per\xc2\xad\nmitted, wholesale waiver o f procedures could deny injured persons due\nprocess protection. Second, wholesale waiver may obstruct a local\nagency\xe2\x80\x99s ability to make a rational decision or to carry out a traditional\nfunction. For example, total waiver o f State and local environmental im\xc2\xad\npact requirements might make it impossible in particular cases for a State\nto evaluate adequately the environmental impact o f a facility and thus\ncould hinder its rational function o f protecting the public health and\nsafety.' But these are problems o f degree, not kind. The possibility that a\ncourt might find that a particular instance o f waiver denied constitutional\nrights or unconstitutionally interfered with a State\xe2\x80\x99s performance of its\nsovereign functions would not void the waiver provision as a whole. So\nlong as the Board applied a procedural waiver reasonably and \xe2\x80\x9c in cir\xc2\xad\ncumstances o f exceptional national need,\xe2\x80\x9d we believe such action would\nbe constitutional.\n\n'This problem is mitigated by the proposal\xe2\x80\x99s requirement that \xe2\x80\x9c in each case o f waiver, the\nBoard shall establish alternative procedures for the assessment o f environm ental impacts of\nthe facility.\xe2\x80\x9d\n\n304\n\n\x0cC. Displacement o f State and Local Decisionmaking\nThe proposal provides that if a State or local agency fails to meet a\ndeadline established by the Schedule, the Board may make the decision in\nlieu o f the agency, thus intruding on authority exercised by State and local\nofficials. It could be argued that supplanting decisionmaking strikes at the\nheart o f State and local sovereignty, an integral governmental function.\nHowever, the constitutional power o f Congress to supplant local\ndecisionmakers is already well established. U nder the Commerce Clause,\nCongress may preempt local decisionmaking altogether and it may deprive\nlocal government totally from exercising its sovereign powers. Preem ption\no f State and local laws that interfere with Federal energy policy is com \xc2\xad\nmonplace. See, e.g., \xc2\xa7 6(b) o f the Emergency Petroleum Allocation Act,\n15 U.S.C. \xc2\xa7 755(b).\nThe critical distinction under the case law is between removing decision\xc2\xad\nmaking from the State and local authorities on the one hand and forcing\nState and local authorities to implement Federal programs on the other.\nThis distinction is made clear by the courts o f appeal decisions that con\xc2\xad\nsidered constitutional challenges to the Clean Air Act, 42 U .S.C . \xc2\xa7 7401 et\nseq., and the Environm ental Protection Agency\xe2\x80\x99s (EPA) implementing\nregulations. T hat Act gives States the opportunity to establish plans im\xc2\xad\nplementing Federal air pollution standards. If a State fails to develop an\nadequate plan, the EPA is authorized to promulgate a plan for the State.\n42 U.S.C. \xc2\xa7 7410(c)(1).2 The EPA adopted regulations that would have\nsubjected States to an injunction or criminal penalties for failure to imple\xc2\xad\nment the EPA-prom ulgated plan. The States challenged the constitution\xc2\xad\nality o f the regulations, claiming that Congress would not authorize the\nEPA to compel State enforcement o f Federal programs. Three courts o f\nappeal suggested that E P A regulations exceeded Congress\xe2\x80\x99 power under\nthe Commerce Clause by invading State sovereignty. Brown v. EPA, 521\nF.(2d) 827, 834-40 (9th Cir. 1975); District o f Columbia v. Train, 521\nF.(2d) 971, 992-94 (D.C. Cir. 1975); Maryland v. EPA, 530 F.(2d) 215,\n225-28 (4th Cir. 1975).3 The courts distinguished a constitutional dif\xc2\xad\nference between Federal regulation o f commerce and Federal regulation o f\nState action in the commerce field. To the extent that E P A regulations\nforced State legislatures to enact laws or be subject to penalties, those\nregulations impermissibly intruded upon State sovereignty. The District o f\nColumbia C ourt o f Appeals held that the EPA was \xe2\x80\x9c attem pting to com \xc2\xad\nmandeer the regulatory powers o f the states, along with their personnel\nand resources, for use in administering and enforcing a federal regulatory\n\n'T he Federal W ater Pollution C ontrol A m endm ents, 33 U .S.C . \xc2\xa7 1313(b), contain a\nsimilar provision.\n\xe2\x80\x98The judgm ents o f the three courts o f appeal were subsequently vacated and rem anded by\nthe Supreme C ourt based on an E PA concession that its regulations went beyond the power\ngranted to it by the Clean Air Act. See, EPA v. Brown, 431 U.S. 99 (1977).\n\n305\n\n\x0cprogram * * * \xe2\x80\x9d 521 F.(2d), at 992. The court stated that EPA could\nseek State cooperation. Absent cooperation, the \xe2\x80\x9c recourse contemplated\nby the Commerce Clause is direct federal regulation o f the offending ac\xc2\xad\ntivity and not coerced state policing o f the details o f an intricate federal\nplan under threat o f federal enforcement proceedings.\xe2\x80\x9d Id., at 993.\nSimilarly, the Fourth Circuit noted the difference between inviting a State\nto administer regulations and compelling administration under threat of\ninjunction and criminal sanctions. While questioning the constitutionality\no f E PA regulations, the court had no problem with the \xe2\x80\x9c time honored and\nconstitutionally approved device o f threat and promise * * * . The\nthreat is a federally imposed regulation with federal administration; the\npromise is the invitation for Maryland to enact a suitable implementation\nplan and administer it with state employees, thus avoiding federal interfer\xc2\xad\nence.\xe2\x80\x9d 530 F.(2d) at 228. None o f the courts o f appeal suggested that the\nauthority o f EPA to promulgate compliance plans for States that failed to\ncomply was unconstitutional.\nThe distinction drawn by these cases strongly supports the constitu\xc2\xad\ntionality o f the proposed Board procedures. We believe that Congress on\nan adequate record can preempt all State and local law that interfered with\nthe construction o f a critical energy facility. The A dm inistration\xe2\x80\x99s EMB\nproposal, however, does not go so far; it seeks to achieve State and local\ncooperation without altering State and local law. The proposal sets a\ndeadline for State action, inviting the States to act; if that deadline passes,\nthe Board is empowered to make the decision. There is no conscription of\nState or local personnel or services; there is no compulsion o f State or\nlocal action. States and localities are given the opportunity to act within a\ncertain time before they lose their ability to act. Such a scheme clearly\nseems to fit within the \xe2\x80\x9c time honored and constitutionally approved\ndevice o f threat and prom ise.\xe2\x80\x9d Maryland v. EPA, supra, 530 F.(2d), at\n228. In fact, this proposal is less intrusive than a scheme o f total preemp\xc2\xad\ntion because the Board will apply the substantive law o f the States and\nlocalities4 and its decisions will be subject to judicial review under the rele\xc2\xad\nvant State and local standards.\nII. Judicial Review o f State and Local Decisions\nAs outlined above, review o f Board actions and decisions by Federal,\nState, and local agencies under the Schedule would be lodged exclusively\nin the Federal courts o f appeal. The reviewing court would apply the\nFederal, State, or local law governing the challenged decisions. This raises\nthe questions whether Congress may oust State courts o f jurisdiction and\nwhether Federal courts are capable o f receiving such jurisdiction under\nArticle III o f the C onstitution.\n\n\xe2\x80\x98The incorporation o f State and local laws as the Federal standards for decisions m ade by\nthe Board in lieu o f State and local decisionmakers is not novel. In the area o f Federal taxa\xc2\xad\ntion, the Internal Revenue Service routinely interprets and applies State laws establishing\nproperty rights in determ ining Federal tax liability. See, e.g., Morgan v. Commissioner, 309\nU.S. 78 (1940).\n\n306\n\n\x0cA. Divesting State Court Jurisdiction\nCongress has clear authority to vest in the Federal courts exclusive\njurisdiction of cases within the purview o f Article III o f the Constitution.\nBowles v. Willingham, 321 U.S. 503, 511-512 (1944); The Moses Taylor,\n71 U.S. (4 Wall.) 411, 429-30 (1867). And Federal courts may entertain\nState matters, applying controlling State law, if Congress so provides. The\nMayor v. Cooper, 73 U.S. (6 Wall.) 247 (1867) (civil removal); Tennessee\nv. Davis. 100 U.S. 257 (1879) (criminal removal). Nor is it unusual for\nFederal courts to apply and interpret State law. Since Erie RR. Co. v.\nTompkins, 304 U.S. 64 (1938), Federal courts sitting in diversity have ap\xc2\xad\nplied substantive State law. Federal courts also apply State criminal law\nunder the Assimilative Crimes Act, 18 U .S.C . \xc2\xa7 13, and under removal\nstatutes. See, Tennessee v. Davis, 100 U.S. at 271-72; Miller v. Kentucky,\n40 F.(2d) 820 (6th Cir. 1930). And cases brought under the Federal Torts\nClaim Act are governed by State tort liability standards. 28 U .S.C\n\xc2\xa7 1346(b).\nThus, we see no constitutional impediment to vesting exclusive jurisdic\xc2\xad\ntion in Federal courts or in having those courts apply the appropriate State\no r local law. The question that remains, however, is whether the courts o f\nappeal are constitutionally empowered to decide such cases\xe2\x80\x94that is,\nwhether challenges to State and local permit decisions come within\nArticle III.\nB. Jurisdiction in the Courts o f Appeal\nUnder the A dm inistration\xe2\x80\x99s proposal, decisions made by the Board in\nlieu of State and local decisions may be subject to review in the courts of\nappeal. A suit challenging a Board decision falls within Federal jurisdic\xc2\xad\ntion, because the United States is a party to the suit.\nIf, however, a State or local agency renders a decision within the time\nlimit prescribed by the Schedule, the basis for jurisdiction o f a Federal\ncourt o f appeals is less certain.5 In such a situation, the question is whether\nthese cases would \xe2\x80\x9c arise under\xe2\x80\x9d Federal law, and thus whether they may\nbe made subject to Federal jurisdiction under Article III.\nIn order to examine the proposed basis on Federal court jurisdiction to\nreview State actions, we believe it would be useful to define the context in\nwhich such litigation may arise.\n\n\xe2\x80\x99We note that parties to the State or local agency proceeding may raise before an agency or\nbefore a Federal court certain Federal constitutional issues related to the agency\xe2\x80\x99s action,\nadequate to vest jurisdiction in the court over those issues. State claims would then be\ncognizable in the Federal courts under the doctrine o f \xe2\x80\x9c pendent\xe2\x80\x9d jurisdiction. See generally,\nUnited Mine Workers v. Gibbs, 383 U.S. 715 (1966).\n\n307\n\n\x0cFirst, State court jurisdiction is being preempted because o f the critical\nneed for expeditious judicial review o f State and local decisions affecting\nthe planning, construction, and operation o f CEFs. This judgm ent,\nnecessarily reflects a belief that State courts cannot be relied on to reach\ndecisions as prom ptly as required in order to meet the national objectives\nestablished for CEFs.\nSecond, the Energy Security C orporation would be a governmentally\nsponsored enterprise with a broad range o f powers to shape the overall\ndevelopment o f CEFs involved in the sponsorship o f CEFs through direct\ngrants or loans, or through construction o f a limited num ber o f CEFs.\nMore importantly, the decision to bring a specific energy project under the\nFederal umbrella by designating it as a CEF triggers a range o f actions\nopen to the Board, which further illustrates the Federal interest present in\nany approval decision by a State or local agency.\nThird, judicial review o f most decisions made by State and local agen\xc2\xad\ncies may present at least some substantial Federal questions. W here, for\nexample, the Board has granted a waiver o f State procedural requirements\nto a State agency in order to enable it to meet its deadline for decisions\nprescribed by the Schedule, the Federal question whether the waiver power\nwas exercised arbitrarily by the Board and whether the State agency\xe2\x80\x99s pro\xc2\xad\ncedure com ported with Federal constitutional requirements might well be\npart o f the litigation.\nThe Adm inistration\xe2\x80\x99s proposal, as presently drafted, provides neither\nfor any overriding principle o f Federal law to control the interpretation o f\nState substantive law nor specifically for incorporation o f State law as a\nFederal standard to be administered by State or local decisionmakers as\nFederal law. Thus, when either the Board or State and local agencies make\napproval decisions pursuant to State substantive law, they are applying\nthat law qua State law. If Congress expressly incorporated State law as the\nFederal rule o f decision, suits challenging those decisions would \xe2\x80\x9c arise\nunder\xe2\x80\x9d the laws o f the United States. See, M acomber v. Bose, 401 F.(2d)\n545 (9th Cir. 1968); Stokes v. Adair, 265 F.(2d) 662 (4th Cir. 1959), cert,\ndenied, 361 U.S. 816 (1959); Quadrini v. Sikorsky Aircraft Division,\nUnited Aircraft Corp., 425 F. Supp. 81, 87 (D. Conn. 1977); Textile\nWorkers Union v. American Thread C o., 113 F. Supp. 137, 140 (D. Mass.\n1953). The decisions establish that Congress may incorporate State law as\nthe Federal standard and also that it may leave to the States the authority\nto amend the substance o f the State laws on the books when the Federal\nstatute effecting such incorporation is enacted. See, e.g., United States v.\nSharpnack, 355 U.S. 286 (1958).6\n\n\xe2\x80\x98Incorporation would permit Congress to freeze State law standards as presently in force.\nThe A dm inistration\xe2\x80\x99s proposal, however, does not seek to freeze standards as they may\nevolve, which suggests that there are no significant policy reasons to have State law directly\nincorporated, except to the extent that incorporation brings actions relating to a CEF within\nthe purview o f Article III.\n(Continued)\n\n308\n\n\x0cAssuming, however, that there is at least some symbolic reason to allow\nState decisionmakers to continue to apply State law qua State law, we\nbelieve that Federal court jurisdiction under the so-called \xe2\x80\x9c protective\njurisdiction\xe2\x80\x9d theory would be available.\nIn International Brotherhood o f Teamsters v. W.L. Mead, Inc., 230\nF.(2d) 576 (1st Cir. 1956), the court o f appeals upheld the constitutionality\no f \xc2\xa7 301 o f the Taft-Hartley Act on the theory o f \xe2\x80\x9c protective juris\xc2\xad\ndiction.\xe2\x80\x9d Under that theory, Congress is not required to displace totally\n(or presumably to incorporate) all otherwise applicable State law in its\ncomprehensive regulation of a specific area o f activity. Rather, Congress\nmay leave issues to be decided by reference to State law but place litigation\nover those issues and others in Article III courts. 230 F.(2d), at 580-81.\nIn reaching its conclusion, the court relied on Williams v. Austrian, 331\nU.S. 642 (1947), a case in which Federal jurisdiction was found in a\nbankruptcy suit in which only State law would be applied by a Federal\nco urt.7 The decision appears to suggest that some limits on \xe2\x80\x9c protective\njurisdiction\xe2\x80\x9d might be derived from Article III, one such being the re\xc2\xad\nquirement o f a high degree o f overall Federal regulation o f an area before\nFederal \xe2\x80\x9c protective\xe2\x80\x9d jurisdiction could be established. We think that the\nAdministration\xe2\x80\x99s overall CEF proposal would clearly meet that threshold\ntest. We would add that the court\xe2\x80\x99s analysis received the explicit approval\no f Justices Burton and Harlan in Textile Workers Union v. Lincoln Mills,\n353 U.S. 448 (1957), where the Court upheld the constitutionality o f \xc2\xa7 301\no f the Taft-Hartley Act on other grounds.\nAlthough we conclude that Federal jurisdiction consistent with Article\nIll\xe2\x80\x99s \xe2\x80\x9c arising under\xe2\x80\x9d requirement m ay be conferred under either an \xe2\x80\x9c in\xc2\xad\ncorporation\xe2\x80\x9d or \xe2\x80\x9c protective jurisdiction\xe2\x80\x9d rationale, we would note that\nsuch jurisdiction could also be established by empowering the Board to in\xc2\xad\ntervene as a party in any case brought in a court o f appeals challenging an\napproval decision made by a State or local agency. In these circumstances,\njurisdiction would be established as an Article III m atter by virtue o f the\nUnited States or one o f its instrumentalities being a \xe2\x80\x9c party\xe2\x80\x9d to the suit,\nsee, United States v. San Jacinto Tin C o.,, 125 U.S. 273 (1888), having a\njudicially cognizable interest in its subject matter.\n\n(Continued)\nAt least in theory, there might be a T enth Am endment objection to federalizing the State\nlaw to be applied by State agencies, even though Federal law is substantively identical to the\ndisplaced State law. The objection would be that the State or local agency has, in effect, been\ninstructed with regard to the law to be applied by it and is therefore required to administer a\nFederal program w ithout having any freedom to decline to do so. See, Maryland v. EPA,\n\nsupra.\n''See Also, Schumacher v. Beeler, 293 U .S. 367 (1934). See generally Mishkin, \xe2\x80\x9c The\nFederal \xe2\x80\x98Question\xe2\x80\x99 in the District C ourts,\xe2\x80\x9d 53 Columbia L. Rev. 157, 195 (1953).\n\n309\n\n\x0cIII. Conclusion\nWe conclude that constitutionally the Board may be granted authority\nto subject State and local agency decisonmaking to the Schedule; to waive\nnonconstitutional procedural requirements imposed on those agencies by\nState law; and to act in the place o f such agencies when they fail to meet\nthe Schedule. If the Schedule is met, then State sovereignty is respected; if\nthe Schedule is not met, then decisionmaking power passes to the Board.\nWe reach these conclusions acknowledging that these are constitutional\nlaw questions with no direct precedent either in judicial decision or\nhistorical experience.\nWe also believe that jurisdiction may be vested in the Federal courts to\nhear all challenges to approval decisions made by State and local agencies\neven in cases involving questions o f substantive State law, that the Board\nmay be made a party to any such action in order to ensure that the interests\no f the United States are adequately represented, and that the requirements\no f Article III are met.\nJohn M . H\n\narm on\n\nAssistant A ttorney General\nOffice o f Legal Counsel\n\n310\n\n\x0c"