b"Relationship Between Illegal Immigration Reform and\nImmigrant Responsibility Act of 1996 and Statutory\nRequirement for Confidentiality of Census Information\nSection 642(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which\nconcerns the authority of federal, state, and local government officials and entities to disclose to the\nImmigration and Naturalization Service information regarding an individual's citizenship or immigration status, does not repeal 13 U.S.C. \xc2\xa7 9(a), a statutory confidentiality requirement that bars the\ndisclosure of covered census information by census officials.\n\nMay 18, 1999\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF COMMERCE\nYou have inquired about the relationship between two federal statutes. The first\nprovision is 13 U.S.C. \xc2\xa7 9(a) (1994 & Supp. IV 1998), which sets forth the\nlongstanding requirement that census officials must, with certain express exceptions, keep covered census information confidential. The second provision is\nsection 642(a) of the Illegal Immigration Reform and Immigrant Responsibility\nAct of 1996 (\xe2\x80\x9cIIRIRA\xe2\x80\x9d), Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-707,\nwhich now appears as 8 U.S.C. \xc2\xa7 1373(a) (Supp. IV 1998), and which concerns\nthe authority of federal, state, and local government officials and entities to\ndisclose to the Immigration and Naturalization Service (\xe2\x80\x9cINS\xe2\x80\x9d) information\nregarding an individual\xe2\x80\x99s citizenship or immigration status. You have asked\nwhether 13 U.S.C. \xc2\xa7 9(a) has been partially repealed by 8 U.S.C. \xc2\xa7 1373(a).1 We\nconclude that it has not.\nI.\nIt is useful at the outset to describe the two federal statutes that are at issue. We\nbegin by describing the longstanding confidentiality provision that has been\ncodified as 13 U.S.C. \xc2\xa7 9(a). We then describe the recently enacted provision that\naddresses the disclosure of certain information to the INS that now appears as\n8 U.S.C. \xc2\xa7 1373(a).\nSection 9(a) of title 13 represents the most recent codification of a statutory\nconfidentiality requirement that dates back more than a century and that bars the\ndisclosure of covered census information by census officials. See Baldrige v.\n1\nSee Letter from Andrew J. Pincus, General Counsel, United States Department of Commerce, to\nRandolph D. Moss, Acting Assistant Attorney General, Office of Legal Counsel, United States\nDepartment of Justice, Re: Effect of the Illegal Immigration Reform and Immigrant Responsibility Act\non the Confidentiality of Census Information (May 14, 1999) (\xe2\x80\x9cPincus Letter\xe2\x80\x9d).\n\n1\n\n\x0cSupplemental Opinions of the Office of Legal Counsel\n\nShapiro, 455 U.S. 345, 356\xe2\x80\x9359 (1982) (reviewing the history of the requirement);\nCensus Data Unavailable to Women\xe2\x80\x99s Bureau of Department of Labor and\nIndividuals, 36 Op. Att\xe2\x80\x99y Gen. 362, 363\xe2\x80\x9366 (1930) (same) (\xe2\x80\x9cCensus Data\xe2\x80\x9d). The\ncore of this requirement has remained essentially unchanged since its initial\nenactment and generally prohibits census officials from disclosing covered\ninformation. The provision has been understood, in the absence of clear exceptions, to impose a broad requirement of confidentiality. See Baldrige, 455 U.S. at\n359 (holding that lists of addresses collected and utilized by the Bureau of the\nCensus are exempt from disclosure by civil discovery or under the Freedom of\nInformation Act); United States v. Bethlehem Steel Corp., 21 F.R.D. 568, 572\n(S.D.N.Y. 1958) (barring disclosure to the Department of Justice); Confidential\nTreatment of Census Records, 40 Op. Att\xe2\x80\x99y. Gen. 326 (1944) (\xe2\x80\x9cCensus Records\xe2\x80\x9d)\n(subjecting Archivist to statutory confidentiality requirement); Census Data, 36\nOp. Att\xe2\x80\x99y Gen. 362 (barring disclosure of census information to the Women\xe2\x80\x99s\nBureau of the Department of Labor and Individuals).\nAt present, the provision enumerates certain express exceptions to the confidentiality requirement, the most recent of which were added by two amendments\nthat Congress enacted in 1997. One of these amendments added a cross-reference\nto a contemporaneously enacted provision that permits certain otherwise prohibited disclosures to be made to the Census Monitoring Board. See Department of\nCommerce, Justice, and State, the Judiciary and Related Agencies Appropriations\nAct of 1998, Pub. L. No. 105-119, \xc2\xa7 210(k), 111 Stat. 2471, 2487 (1997) (amending the face of 13 U.S.C. \xc2\xa7 9(a)); id. \xc2\xa7 210(e)(3), 111 Stat. at 2485 (permitting\ndisclosure to Census Monitoring Board). The other added a cross-reference to a\ncontemporaneously enacted provision that permits certain otherwise prohibited\ndisclosures to be made to the Department of Agriculture for the purpose of\nfacilitating the agriculture census. See Census Agriculture Act of 1997, Pub. L.\nNo. 105-113, \xc2\xa7 4(a)(1), 111 Stat. 2274, 2276 (amending the face of 13 U.S.C.\n\xc2\xa7 9(a)); id. \xc2\xa7 2(f), 111 Stat. at 2275 (permitting disclosure to the Agriculture\nDepartment).2\nThe statutory prohibition against the disclosure of census information now\ncodified as 13 U.S.C. \xc2\xa7 9(a) not only protects the personal privacy of persons who\nrespond to the census, but also, in doing so, facilitates the administration of the\ncensus, which the Constitution commands the federal government to perform\nevery ten years. See U.S. Const. art. I, \xc2\xa7 2, cl. 3. As the Supreme Court observed in\nBaldrige, \xe2\x80\x9c[a]lthough Congress has broad power to require individuals to submit\nresponses, an accurate census depends in large part on public cooperation. To\nstimulate that cooperation Congress has provided assurances that information\n2\nCongress did not reenact the substantive confidentiality requirement itself, however, in amending\nthe provision to include these express exceptions.\n\n2\n\n\x0cStatutory Requirement for Confidentiality of Census Information\n\nfurnished to the Secretary [of Commerce] by individuals is to be treated as\nconfidential.\xe2\x80\x9d 455 U.S. at 354. Not surprisingly, therefore, federal law provides\nthat census officials who violate the terms of the statutory confidentiality requirement may be subject to criminal prosecution for the commission of a felony, and,\nupon conviction, may face a maximum prison term of five years. See 13 U.S.C.\n\xc2\xa7 214 (1994).\nThe text of section 9(a) provides:\n(a) Neither the Secretary, nor any other officer or employee of the\nDepartment of Commerce or bureau or agency thereof, or local government census liaison, may, except as provided in section 8 or 16 or\nchapter 10 of this title or section 2(f) of the Census of Agriculture\nAct of 1997 or section 210 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations\nAct, 1998\xe2\x80\x94\n(1) use the information furnished under the provisions of this title\nfor any purpose other than the statistical purposes for which it is\nsupplied; or\n(2) make any publication whereby the data furnished by any particular establishment or individual under this title can be identified; or\n(3) permit anyone other than the sworn officers and employees of\nthe Department or bureau or agency thereof to examine the individual reports.\nNo department, bureau, agency, officer, or employee of the Government, except the Secretary in carrying out the purposes of this title,\nshall require, for any reason, copies of census reports which have\nbeen retained by any such establishment or individual. Copies of\ncensus reports which have been so retained shall be immune from\nlegal process, and shall not, without the consent of the individual or\nestablishment concerned, be admitted as evidence or used for any\npurpose in any action, suit, or other judicial or administrative proceeding.3\n\n3\nSubsection (b) sets forth an additional, express exception to the limited ones that are contained in\nthe body of subsection (a). This provision is not at issue in this matter. The subsection provides:\n\n(b) The provisions of subsection (a) of this section relating to the confidential treatment of data for particular individuals and establishments, shall not apply to the cen-\n\n3\n\n\x0cSupplemental Opinions of the Office of Legal Counsel\n\nIn contrast to 13 U.S.C. \xc2\xa7 9(a), section 1373(a) of title 8, entitled \xe2\x80\x9cCommunication between Government agencies and the Immigration and Naturalization\nService,\xe2\x80\x9d is a recent enactment, and there is little in the way of legislative history\nthat illuminates its scope. Congress adopted the provision in the course of passing\nIIRIRA in 1996, well after 13 U.S.C. \xc2\xa7 9(a) had been enacted but just prior to the\nenactment of the recent amendments to 13 U.S.C. \xc2\xa7 9(a) described above. The\nlimitation was originally set forth as section 642(a) of IIRIRA and is codified as\nsection 1373(a) of title 8.\nThe text of section 1373(a) provides:\n(a) In general\nNotwithstanding any other provisions of Federal, State, or local law,\na Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from\nsending to, or receiving from, the Immigration and Naturalization\nService information regarding the citizenship or immigration status,\nlawful or unlawful, of any individual.\nSubsection (b) places an additional limitation on attempts to restrict a federal,\nstate, or local government \xe2\x80\x9centity\xe2\x80\x9d from making certain uses of information\nregarding the immigration status, lawful or unlawful, of any individual. Subsection\n(b) provides:\n(b) Additional authority of Government entities\nNotwithstanding any other provision of Federal, State, or local law,\nno person or agency may prohibit, or in any way restrict, a Federal,\nState, or local government entity from doing any of the following\nwith respect to information regarding the immigration status, lawful\nor unlawful, of any individual:\n(1) Sending such information to, or requesting or receiving such\ninformation from, the Immigration and Naturalization Service.\n(2) Maintaining such information.\n\nsuses of governments provided for by subchapter III of chapter 5 of this title, nor to\ninterim current data provided for by subchapter IV of chapter 5 of this title as to the\nsubjects covered by censuses of governments, with respect to any information obtained therefor that is compiled from, or customarily provided in, public records.\n\n4\n\n\x0cStatutory Requirement for Confidentiality of Census Information\n\n(3) Exchanging such information with any other Federal, State, or\nlocal government entity.4\nII.\nThe question that we must resolve concerns the relationship between these two\nfederal statutes, one of which sets forth a longstanding bar to the disclosure of\nsensitive information by census officials that may be enforced with criminal\npenalties, and the other of which sets forth a limitation intended to facilitate the\ndisclosure of certain information to the INS.\nWe begin with the text of the statute that might be construed to have effected a\nrepeal of prior law. We are mindful in doing so that \xe2\x80\x9crepeals by implication are not\nfavored,\xe2\x80\x9d United States v. United Continental Tuna Corp., 425 U.S. 164, 168\n(1976); Morton v. Mancari, 417 U.S. 535, 551 (1974) (\xe2\x80\x9cWhen two statutes are\ncapable of co-existence, it is the duty of the courts . . . to regard each as effective\xe2\x80\x9d), and that it is \xe2\x80\x9c[a] long-standing maxim of statutory construction that\nstatutes are enacted in accord with the legislative policy embodied in prior\nstatutes, and that therefore statutes dealing with the same subject should be\nconstrued together.\xe2\x80\x9d Memorandum for Glen E. Pommerening, Assistant Attorney\nGeneral for Administration, from Antonin Scalia, Assistant Attorney General,\nOffice of Legal Counsel, Re: Establishing a Maximum Entry Age Limit for Law\nEnforcement Officer Positions in the Department of Justice at 3 (Apr. 3, 1975).\nHere, by virtue of its more recent enactment, and notwithstanding the 1997\namendments to 13 U.S.C. \xc2\xa7 9(a), the potential repealer is 8 U.S.C. \xc2\xa7 1373(a), the\ntext of which provides that federal, state, or local governmental \xe2\x80\x9centit[ies]\xe2\x80\x9d or\n\xe2\x80\x9cofficial[s]\xe2\x80\x9d may not \xe2\x80\x9cprohibit, or in any way restrict,\xe2\x80\x9d certain types of disclosures\nto federal, state, or local government entities or officials. In our view, the text of\nsection 1373(a) does not manifest the kind of clear congressional intention that is\nordinarily required to effect the repeal of a federal statute such as 13 U.S.C. \xc2\xa7 9(a).\nIndeed, if anything, the statutory text suggests that Congress did not intend to\nrepeal existing, federal statutory prohibitions or restrictions on disclosure.\nThere would be nothing impermissible about a federal statute that took the form\nof a repeal of prior federal statutory disclosure prohibitions or restrictions. The\n4\nSubsection (c) of section 1373 imposes a duty upon the INS to respond to certain requests for\ninformation about the citizenship or immigration status of individuals that it receives from governmental agencies. That portion of the provision is not at issue here. It provides:\n\n(c) Obligation to respond to inquiries\nThe Immigration and Naturalization Service shall respond to an inquiry by a Federal,\nState, or local government agency, seeking to verify or ascertain the citizenship or\nimmigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.\n\n5\n\n\x0cSupplemental Opinions of the Office of Legal Counsel\n\nquestion, here, however, is whether 8 U.S.C. \xc2\xa7 1373(a) is such a federal statute,\nand textual evidence suggests that it is not. There is a straightforward way in\nwhich 8 U.S.C. \xc2\xa7 1373(a) might have been drafted to repeal federal statutes\nprohibiting or restricting disclosure and to establish an interpretive background for\nfuture federal statutes that would favor disclosure: \xe2\x80\x9cNotwithstanding any provision\nof law, a federal, state, or local official or entity may provide information, without\nrestriction . . . .\xe2\x80\x9d In contrast, the terms of section 1373(a) do not clearly invest\ngovernmental officials or entities with the affirmative authority to disclose\ninformation in circumstances where they otherwise would be prohibited from\ndoing so by a federal statute. Rather, the provision is phrased as a limitation on the\nauthority of government entities or officials to impose prohibitions or restrictions\non disclosures by government entities or officials. The phrasing therefore requires\nthat we determine, in order to discern the scope of the provision, the government\n\xe2\x80\x9centities\xe2\x80\x9d to which Congress has directed this bar. A consideration of that\nquestion, in turn, reveals the problem with construing section 1373(a) to supersede\nfederal statutory prohibitions or restrictions on the disclosure of information.\nOne could read the text of section 1373(a) to supersede federal statutory prohibitions or restrictions on disclosure by concluding that the phrase \xe2\x80\x9ca Federal, State,\nor local government entity or official may not prohibit, or in any way restrict\xe2\x80\x9d\nincludes within its terms the United States Congress acting pursuant to its\nlawmaking authority in the same way that it would include within its terms states\nor local governments acting pursuant to their lawmaking authority. Such a\nconstruction would be at odds, however, with the fact that Congress may not, by\nstatute, direct the Congress not to enact certain laws in the future. See, e.g.,\nFletcher v. Peck, 10 U.S. (6 Cranch) 87, 135 (1810) (Marshall, C.J.) (\xe2\x80\x9cThe\nprinciple asserted is that one legislature . . . cannot abridge the powers of a\nsucceeding legislature. The correctness of this principle, so far as respects general\nlegislation, can never be controverted.\xe2\x80\x9d). That is not to say, of course, that\nCongress may not enact a statutory prohibition that Congress could lift only by\nsubsequently repealing it. It is rather to say that Congress has no power to\ncommand itself by statute not to enact a law in the future, and thus that it would be\nodd to construe the command contained in section 1373(a) to have been intended\nto apply to Congress\xe2\x80\x99s own power to enact prohibitions or restrictions on disclosure. It would appear from the text, therefore, that the provision is intended to\nconstrain the lawmaking discretion of other government officials and entities but\nnot of the very governmental entity that is constitutionally vested with the\nlawmaking power of the federal government.\nIt is not possible, moreover, to construe section 1373(a) as if it were intended to\napply only to federal statutory disclosure prohibitions or restrictions that had been\nenacted prior to the passage of section 1373(a). Such a construction would avoid\nthe problem that we have just mentioned, but only by giving rise to a new one. It\nwould be quite strange to conclude that Congress intended for section 1373(a) to\n\n6\n\n\x0cStatutory Requirement for Confidentiality of Census Information\n\napply only retroactively as a general matter, and the statutory text simply does not\npermit the provision to be construed to apply both prospectively and retroactively\nto state and local laws, but only retroactively to federal statutes.\nWe also do not believe that it would make sense to construe section 1373(a) as\nif it were intended to preclude federal officials or entities from implementing,\nthrough, for example, criminal prosecutions or disciplinary actions, federal\nstatutory prohibitions or restrictions against disclosure. Such an interpretation\nwould require one to make the dubious assumption that Congress intended to\npreclude federal officials from implementing statutory prohibitions or restrictions\nagainst disclosure that it had not seen fit to repeal.\nThese interpretive oddities do not arise if the text is construed to apply only to\ndisclosure prohibitions or restrictions other than those imposed by federal statute.\nFor example, section 1373(a) may be comfortably construed to displace conflicting state or local non-disclosure laws, even if they have been enacted by statute or\nordinance5; state and local governments must legislate in this area in accord with\nfederal law, City of New York v. United States, 971 F. Supp. 789 (S.D.N.Y. 1997)\n(rejecting a Tenth Amendment challenge to the application of section 1373(a) to\npreempt a city executive order prohibiting city officials from disclosing certain\ninformation to the INS), and the rule that Congress may not bind its future\nlawmaking power is obviously not implicated by a federal statute that has such\npreemptive effect. Section 1373(a) also may be comfortably construed to limit the\ndiscretionary authority of federal officers or employees, or federal entities like\nadministrative agencies, to adopt disclosure prohibitions or restrictions; federal\nofficials or entities generally may exercise discretionary authority of this sort only\nto the extent that Congress allows by statute. The ease with which the provision\nmay be read to cover these applications stands in marked contrast to the struggle\nthat would be required to read the provision to cover federal statutory prohibitions\nor restrictions on disclosure.\nTo be sure, the presence of the prefatory phrase \xe2\x80\x9cnotwithstanding any other\nprovisions of Federal, State, or local law\xe2\x80\x9d does reflect a congressional intention to\ndisplace inconsistent law. It does not, however, support a broad construction of the\nsubstantive provision that would give rise to such inconsistencies. See Moyle v.\nDirector, Office of Worker\xe2\x80\x99s Comp. Programs, 147 F.3d 1116, 1119 (9th Cir.\n1998) (\xe2\x80\x9cThe fact that [a statute] provides that it is effective \xe2\x80\x98[no]twithstanding any\nother provision of law\xe2\x80\x99 also does not evidence an express repeal of [the other]\nstatute.\xe2\x80\x9d); Kee Leasing Co. v. McGahan, 944 F.2d 577, 582 (9th Cir. 1991)\n(\xe2\x80\x9cnotwithstanding\xe2\x80\x9d phrase by itself did not in and of itself indicate a congressional\nintent to repeal other statute). The \xe2\x80\x9cnotwithstanding\xe2\x80\x9d phrase merely prefaces the\n\n5\n\nSee infra note 7.\n\n7\n\n\x0cSupplemental Opinions of the Office of Legal Counsel\n\nsubstantive limitation that section 1373(a) sets forth, and, as we have explained,\nthe text of section 1373(a) suggests that this substantive limitation does not apply\nif Congress is the source of the prohibition or restriction in question. The limitation appears instead to be intended to apply only when the source of the prohibition or restriction on disclosure is an entity or official other than Congress. The\n\xe2\x80\x9cnotwithstanding\xe2\x80\x9d phrase is thus best read to mean only that, notwithstanding a\nfederal statute that would authorize federal officials or entities to exercise their\ngeneral administrative discretion in a manner that would prohibit or restrict\ndisclosures of the type identified in section 1373(a), such federal officials or\nentities may not exercise such discretion. The phrase should not be understood to\nrefer, therefore, to federal statutes that themselves prohibit or restrict such\ndisclosures.6\nNor do the terms of the title of subsection (b) of section 1373 of title 8, which\nemploys similar language to subsection (a), reflect a congressional intention to\ncover federal statutory prohibitions or restrictions on disclosure. The subsection is\nentitled \xe2\x80\x9cAdditional Authority of Governmental entities.\xe2\x80\x9d This language should\nnot be read to suggest that Congress intended for the text of both subsections to\nauthorize governmental entities or officials to make disclosures in contravention of\notherwise applicable federal statutes. Section 1373 confers \xe2\x80\x9cadditional authority\xe2\x80\x9d\non state and local governmental entities to the extent that it preempts state or local\ndisclosure prohibitions that would otherwise apply to them. Thus, even if the title\nto subsection (b) should be given interpretive weight, its terms are consistent with\nthe construction of the text of section 1373(a) that we have set forth above.7\n\n6\nQuestions may arise in some circumstances as to whether a federal statute constitutes a prohibition or restriction on disclosure or merely confers general administrative authority upon subordinate\nofficials or entities that would enable them to determine in their discretion whether to adopt such\nprohibitions or restrictions. We have no need to address such questions here, however, because there is\nno question that 13 U.S.C. \xc2\xa7 9(a) constitutes a federal statutory bar against disclosure.\n7\nIn concluding that the text of section 1373(a) should not be understood to repeal federal statutory\nprohibitions or restrictions on disclosure, we express no view as to whether other limitations on the\nscope of the provision may also be warranted by either its text or its purposes. We note, however, that,\nalthough, as we explain below, the legislative history comports with our conclusion that Congress did\nnot intend section 1373(a) to supersede legislatively enacted federal prohibitions or restrictions on\ndisclosure, the legislative history also suggests that Congress intended to supersede state and local\nprohibitions or restrictions on disclosure without regard to whether such prohibitions or restrictions had\nbeen enacted legislatively or adopted pursuant to the exercise of administrative discretion. See H.R.\nRep. No. 104-469, pt. 1, at 277 (1996) (explaining that the House version of the measure \xe2\x80\x9cis designed\nto prevent any State or local law, ordinance, executive order, policy, constitutional provision, or\ndecision of any Federal or State court that prohibits or in any way restricts any communication between\nState and local officials and the INS\xe2\x80\x9d). Thus, the legislative history casts doubt upon a construction of\nsection 1373(a) that would leave in place all legislatively enacted prohibitions or restrictions on\ndisclosure, including state and local ones.\n\n8\n\n\x0cStatutory Requirement for Confidentiality of Census Information\n\nIII.\nThe remaining evidence of congressional intent supports the inference that the\ntext invites: that 8 U.S.C. \xc2\xa7 1373(a) does not repeal federal statutory prohibitions\nor restrictions on disclosure to the INS of information concerning an individual\xe2\x80\x99s\ncitizenship or immigration status.\nAs an initial matter, Congress amended the version of 13 U.S.C. \xc2\xa7 9(a) that predated the enactment of section 1373(a) after section 1373(a) had been enacted.\nThe amendments, as we have already explained, added two express exceptions to\nthe confidentiality requirement for census information that 13 U.S.C. \xc2\xa7 9(a) had\npreviously set forth. This recent history of express amendment is consistent with\nCongress\xe2\x80\x99s past practice of expressly identifying the relationship between the\nconfidentiality requirement that 13 U.S.C. \xc2\xa7 9(a) sets forth and other federal\nstatutes. See, e.g., 42 U.S.C. \xc2\xa7 11608 (1994) (setting forth the manner in which\notherwise confidential covered census information may be disclosed to implement\na certain treaty); 42 U.S.C. \xc2\xa7 6274 (1994) (specifically abrogating protections\nconferred by section 9 of title 13 to implement a different statutory policy); 50\nU.S.C. app. \xc2\xa7 2411 (1994) (providing express exemption for covered census\ninformation from general disclosure requirement); see Pincus Letter at 1 (noting\nthat \xe2\x80\x9cthe few statutory exceptions to this requirement are explicit and limited\xe2\x80\x9d).\nBecause \xe2\x80\x9cthis particular problem of statutory construction arises in a context in\nwhich Congress has historically legislated with care and specificity,\xe2\x80\x9d Exchange\nAuthority for Kaloko Honokohau National Historical Park, 6 Op. O.L.C. 251, 255\n(1982), the absence of a reference in either statute to the other suggests that the\ntext of 13 U.S.C. \xc2\xa7 9(a) should be construed to mean just what it says, and that\n8 U.S.C. \xc2\xa7 1373(a) should be understood to have left in place the confidentiality\nrequirement that 13 U.S.C. \xc2\xa7 9(a) establishes.8\nThe fact that neither statutory provision refers to the other is also significant\nbecause it has long been assumed that, if Congress were to cut back on the\nconfidentiality provision set forth in 13 U.S.C. \xc2\xa7 9(a), it would do so clearly. In\nrejecting a request by the United States Department of Justice that census officials\nbe ordered to disclose census information relevant to an investigation, Judge\n8\n\nShortly after section 642(a) of IIRIRA had been enacted, the Department of Justice submitted a\nlegislative proposal to Congress that contained various technical amendments to IIRIRA and that\nwould have expressly provided that section 642(a) did not repeal 13 U.S.C. \xc2\xa7 9(a). See Letter for Newt\nGingrich, Speaker, United States House of Representatives, from Andrew Fois, Assistant Attorney\nGeneral, Office of Legislative Affairs (July 3, 1997), with attached legislative proposal entitled\n\xe2\x80\x9cTechnical Immigration and Naturalization Amendments of 1997.\xe2\x80\x9d The fact that Congress did not\nenact this legislative proposal into law does not, of course, suffice to indicate that Congress intended\nfor section 642(a) to repeal a portion of the confidentiality requirement set forth in 13 U.S.C. \xc2\xa7 9(a).\nSee Helvering v. Hallock, 309 U.S. 106, 121 (1940) (Frankfurter, J.) (\xe2\x80\x9c[W]e walk on quicksand when\nwe try to find in the absence of corrective legislation a controlling legal principle.\xe2\x80\x9d).\n\n9\n\n\x0cSupplemental Opinions of the Office of Legal Counsel\n\nWeinfeld explained that \xe2\x80\x9cthe purpose to protect the privacy of the information\nfurnished to the Government is so clear and the public policy underlying the\npurpose so compelling that, absent a clear Congressional grant, there is no basis\nupon which to direct the Department of Commerce to make available to the\nDepartment of Justice or to any person the reports here sought.\xe2\x80\x9d Bethlehem Steel,\n21 F.R.D. at 572. The Attorney General employed a similar requirement of clarity\nin determining that a statute that granted custody of federal records to the Archivist did not displace the confidentiality requirement set forth in a predecessor to 13\nU.S.C. \xc2\xa7 9(a).\nThe policy of insuring by legislative and executive action that no unauthorized use is made of information obtained in the census, and the\ncompelling reasons therefor, are set forth in the Attorney General\xe2\x80\x99s\nopinion of September 29, 1930, to the Secretary of Commerce. It\nwould require very clear language in a general statute relating to the\ncustody of records to justify attributing to the Congress an intention\nto depart from its policy, and there is no such clear indication in the\nArchives Act.\nCensus Records, 40 Op. Att\xe2\x80\x99y Gen. at 327\xe2\x80\x9328.9\nThe presumption employed in these cases arises from the important governmental interests that first prompted the enactment of a statutory requirement of\nconfidentiality. Indeed, the Supreme Court emphasized the long history of this\nstatutory requirement, and the important role that it plays in encouraging the\npublic to cooperate with census officials, in the course of holding that Congress, in\nenacting the Freedom of Information Act or conferring authority on federal district\ncourts to order the discovery of non-privileged information, could not have\nintended to override the requirement in a manner that would permit the disclosure\nof the lists of addresses that had been collected and utilized by the Bureau of the\nCensus. See Baldrige, 455 U.S. at 356\xe2\x80\x9362. The Attorney General also emphasized\nthe important function that the confidentiality requirement performs in describing\na nearly identical predecessor to the current, non-disclosure requirement: \xe2\x80\x9cThere\ncan be no doubt that the Congress intended in the act of June 18, 1929 . . . to give\neffective assurance to all persons required under penalty of law to furnish\n9\nThe Supreme Court\xe2\x80\x99s decision in St. Regis Paper Co. v. United States, 368 U.S. 208 (1962), is not\nto the contrary. In that case, the Court held that the Federal Trade Commission was entitled to order a\nprivate corporation to submit certain census-related information that it had maintained, but the Court\ndid so on the basis of a determination that 13 U.S.C. \xc2\xa7 9(a) imposes a confidentiality requirement that\napplies to government officials and not private persons or entities. See St. Regis Paper Co., 368 U.S. at\n217\xe2\x80\x9318. The question before us, by contrast, concerns whether the recent enactment of 8 U.S.C.\n\xc2\xa7 1373(a) makes permissible the disclosure of census information by government officials who would\notherwise be subject to the confidentiality requirement that 13 U.S.C. \xc2\xa7 9(a) imposes.\n\n10\n\n\x0cStatutory Requirement for Confidentiality of Census Information\n\ninformation to the Bureau of the Census for statistical purposes, that the identity of\nthe informant and the information furnished would be held in complete confidence\nby the Bureau.\xe2\x80\x9d Seventeenth Decennial Census, 41 Op. Att\xe2\x80\x99y Gen. 120, 124\n(1953); see also Bethlehem Steel Corp., 21 F.R.D. at 570\xe2\x80\x9371 (explaining that a\n\xe2\x80\x9cpurpose [of the requirement] was to encourage citizens to submit freely all data\ndesired in recognition of its importance in the enactment of laws and other\npurposes in the national interests\xe2\x80\x9d).\nThe confidentiality provision to which the Attorney General referred was itself\npre-dated by section 25 of the Act of July 2, 1909, ch. 2, 36 Stat. 1, 9, which set\nforth the non-disclosure requirement in similar terms to the current requirement.\nThe congressional committee that reported the bill that became the Act of July 2,\n1909, explained that the provision was intended to secure \xe2\x80\x9ca more effective\nguaranty than heretofore of the confidential character of the returns as needed in\nmany cases and desirable in all to enlist that public confidence without which\ncensus inquiries must fail.\xe2\x80\x9d H.R. Rep. No. 60-960, at 23 (1908).\nIn addition, soon after the enactment of the 1929 statute, Act of June 18, 1929,\nch. 46, 28 Stat. 21, 25, and consistent with its broad purpose, President Herbert\nHoover assured the public by proclamation of November 22, 1929, that the\nstatutory provisions barring the disclosure of census information made clear that\n[t]he sole purpose of the Census is to secure general statistical information regarding the population and resources of the country, and\nreplies are required from individuals only to permit the compilation\nof such general statistics. No person can be harmed in any way by\nfurnishing the information required. The Census has nothing to do\nwith taxation, with military or jury service, with the compulsion of\nschool attendance, with the regulation of immigration, or with the\nenforcement of any national, state, or local law or ordinance. There\nneed be no fear that any disclosure will be made regarding any individual person or his affairs. For the due protection of the rights and\ninterests of the persons furnishing information every employee of the\nCensus Bureau is prohibited, under heavy penalty, from disclosing\nany information which may thus come to his knowledge.\nProclamation No. 1898 (1929).\nIn light of the federal government\xe2\x80\x99s longstanding commitment to confidentiality in this area, there is every reason to expect that Congress would have spoken\nwith particular clarity if it had intended to cut back on the scope of 13 U.S.C.\n\xc2\xa7 9(a) in enacting 8 U.S.C. \xc2\xa7 1373(a). The plain terms of 13 U.S.C. \xc2\xa7 9(a)\ncertainly make clear the nature of this federal governmental commitment to\nconfidentiality, as they render covered census information immune from legal\nprocess. A broad construction of 8 U.S.C. \xc2\xa7 1373(a), however, would permit\n\n11\n\n\x0cSupplemental Opinions of the Office of Legal Counsel\n\ncensus officials to disclose to INS employees otherwise protected census information even in the absence of a court order requiring them to do so. It is unlikely\nthat, in light of past practice, Congress would have adopted such a significant\nlimitation on the scope of the census confidentiality requirement without either\nreferring to it expressly in 8 U.S.C. \xc2\xa7 1373(a) or an amendment to 13 U.S.C.\n\xc2\xa7 9(a), or, at the least, using more direct language than it has employed here.\nFinally, the discussion in the legislative reports that directly concerns 8 U.S.C.\n\xc2\xa7 1373(a) accords with the conclusion that Congress did not intend to effect the\nrepeal of federal statutory prohibitions or restrictions such as 13 U.S.C. \xc2\xa7 9(a). The\nconference report to IIRIRA, for example, states that section 642(a), which now\nappears as 8 U.S.C. \xc2\xa7 1373(a), \xe2\x80\x9cprovides that notwithstanding any other provision\nof Federal, State, or local law, no State or local government entity shall prohibit or\nin any way restrict any government entity or official from sending to or receiving\nfrom the INS information regarding the immigration status of any individual in the\nUnited States.\xe2\x80\x9d H.R. Rep. No. 104-828, at 249 (1996) (Conf. Rep.). The report\xe2\x80\x99s\nfailure to refer to prohibitions or restrictions by federal government entities may\nhave been the result of an oversight, but the omission nonetheless makes it\ndifficult to discern from the conference report a congressional intention to repeal\nfederal statutory prohibitions or restrictions against disclosure, such as the one\ncontained in 13 U.S.C. \xc2\xa7 9(a).\nIn addition, the Senate report appears to be focused on state and local disclosure prohibitions and restrictions. Although the report provides that the provision\nthat would later become section 642(a) \xe2\x80\x9c[p]rohibits any restriction on the exchange of information between the Immigration and Naturalization Service and\nany Federal, State, or local agency regarding a person\xe2\x80\x99s immigration status,\xe2\x80\x9d\nS. Rep. No. 104-249, at 19 (1996), the next two sentences suggest that Congress\nwas concerned with state and local restrictions, not federal statutory ones:\n\xe2\x80\x9cEffective immigration law enforcement requires a cooperative effort between all\nlevels of government. The acquisition, maintenance, and exchange of immigration-related information by State and local agencies is consistent with, and of\npotentially considerable assistance to, the Federal regulation of immigration and\nthe achieving of the purposes and objectives of the Immigration and Nationality\nAct.\xe2\x80\x9d Id. at 19\xe2\x80\x9320.\nThe House report also fails to provide support for construing 8 U.S.C.\n\xc2\xa7 1373(a) to effect the repeal of federal statutory prohibitions or restrictions on\ndisclosure. Indeed, at the time of the report, the bill applied only to state and local\nprohibitions or restrictions on disclosure, not federal ones. H.R. Rep. No. 104-469,\npt. 1, at 104 (1996). To the extent that the report may be understood to shed any\nlight on the kind of prohibitions or restrictions on disclosure that Congress had in\nmind in enacting section 642(a), moreover, it suggests that a narrow construction\nis appropriate. The report states, for example, that \xe2\x80\x9c[t]he Committee believes that\nimmigration law enforcement is as high a priority as other aspects of Federal law\n\n12\n\n\x0cStatutory Requirement for Confidentiality of Census Information\n\nenforcement, and that illegal aliens do not have the right to remain in the U.S.\nundetected and unapprehended.\xe2\x80\x9d H.R. Rep. No. 104-469, pt. 1, at 277. The report\nappears to suggest, therefore, that Congress intended to ensure that the INS would\nnot be placed at a comparative disadvantage in performing its law enforcement\nresponsibilities. If section 1373(a) were construed to repeal the applicable portion\nof 13 U.S.C. \xc2\xa7 9(a), however, the INS would be capable of obtaining census\ninformation relevant to its law enforcement mission even though other federal\nagencies would not. The report provides no support for a construction of section\n1373(a) that would have the consequence of thus privileging the INS.10\nV.\nFor the reasons set forth above, we conclude that 8 U.S.C. \xc2\xa7 1373(a) does not\nrepeal 13 U.S.C. \xc2\xa7 9(a).\nRANDOLPH D. MOSS\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n10\n\nThis evidence from the legislative history may suggest that 8 U.S.C. \xc2\xa7 1373(a) is not intended to\napply to any provision of law, whether federal, state, or local, that imposes a confidentiality requirement that applies to bar disclosures not simply to the INS, but to government agencies generally. We\ndo not address here, however, whether such a distinction between types of confidentiality requirements\nwould be compatible with the text of 8 U.S.C. \xc2\xa7 1373(a). Cf. Emp\xe2\x80\x99t Div. v. Smith, 494 U.S. 872, 878\n(1990) (interpreting the word \xe2\x80\x9cprohibiting\xe2\x80\x9d in the Free Exercise Clause to incorporate an implicit\ndistinction between direct and indirect prohibitions). We do note that while it is clear that Congress\nintended for 8 U.S.C. \xc2\xa7 1373(a) to displace state or local provisions that specifically targeted\ndisclosures to the INS for special prohibition, see City of New York v. United States, 971 F. Supp. 789,\n792 (S.D.N.Y. 1997), the federal statutory bar to disclosure that is set forth in 13 U.S.C. \xc2\xa7 9(a) is not\nsimilarly targeted. It applies without regard to whether the information to be protected concerns an\nindividual\xe2\x80\x99s citizenship or immigration status or whether the disclosure is to be made to the INS or\nsome other law enforcement agency.\n\n13\n\n\x0c"


b'Congressional Authority to Require the States to Lodge\nFederal Pre-Trial Detainees\nCongress has pow er to provide for the housing o f federal pre-trial detainees, whether by\nauthorizing the construction o f federal facilities or arranging with the states to use state\nfacilities; however, it does not follow that Congress could require unwilling states to\nhouse federal prisoners, particularly w here state reluctance stems from overcrowding in\nstate and local detention facilities.\nThe Tenth Amendment limits Congress\xe2\x80\x99 power to enact legislation w hich interferes with\nthe traditional way in which local governm ents have arranged their affairs; moreover,\nprinciples of federalism limit Congress\xe2\x80\x99 pow er to require state officers to perform\nfederal functions.\nHistorically, Congress has been reluctant to require states to house federal prisoners,\nalthough it is not clear w hether this reluctance has been motivated by a belief that\nCongress lacked power to do so by political considerations.\nA statutory scheme by which Congress would induce, rather than coerce, the states to\nhouse federal prisoners through exercise of its spending pow er is more likely to be held\nconstitutional, although here too there are limits on Congress\xe2\x80\x99 pow er to impose coer\xc2\xad\ncive conditions on the states\xe2\x80\x99 receipt o f federal funds.\n\nMay 18, 1981\nMEMORANDUM OPINION FOR\nTH E ASSOCIATE ATTORNEY GENERAL\nThis responds to your request for an opinion whether Congress\nwould have the authority under the Constitution to enact legislation\nrequiring state and local jail authorities to lodge federal pre-trial detain\xc2\xad\nees for a fee to be established either by regulation or agreement. We are\nconcerned that recent decisions of the U.S. Supreme Court make it\nmore likely than not that the courts would hold such legislation to be\ntoo intrusive on the states\xe2\x80\x99 sovereignty and therefore unconstitutional\nunder the Tenth Amendment. We suggest you consider devising a\nlegislative scheme which would induce, rather than coerce, the states to\noffer their facilities to house federal pre-trial detainees.\nThere is no question that Congress has the power under the Constitu\xc2\xad\ntion to provide for the housing of federal pre-trial detainees\xe2\x80\x94whether\nby authorizing the construction of dentention facilities or arranging\nwith the states to use their facilities. E x parte Karstendick, 93 U.S. (3\nOtto) 396, 400 (1876). Although this power is not expressly enumerated\nin Article I, \xc2\xa7 8 of the Constitution, the exercise of such power is\nnecessary and proper, under Article I, \xc2\xa7 8, clause 18, to provide for an\n142\n\n\x0corderly federal system of criminal justice contemplated by several other\nprovisions of the Constitution. See, e.g., Art. II, \xc2\xa7 3; Art. Ill, \xc2\xa7 2, cl. 3;\nFifth Amendment; Sixth Amendment; Eighth Amendment. That power,\nhowever, does not necessarily authorize Congress to require unwilling\nstates to provide facilities to house federal pre-trial detainees, because\nthe Supreme Court has recognized that Congress\xe2\x80\x99 exercise of its consti\xc2\xad\ntutional power is limited by the Tenth Amendment.\nThe landmark case discussing the Tenth Amendment\xe2\x80\x99s limitations on\nCongress\xe2\x80\x99 exercise of its constitutional powers is National League o f\nCities v. Usery, 426 U.S. 833 (1976). In National League o f Cities, the\nCourt addressed the question whether Congress, in exercising its power\nunder the Commerce Clause, could extend coverage of the Fair Labor\nStandards Act to employees of the states and their political subdivi\xc2\xad\nsions, thus requiring the states to adhere to minimum wage and maxi\xc2\xad\nmum hour requirements previously applicable only to private employ\xc2\xad\ners. While recognizing that Congress has the power under the Com\xc2\xad\nmerce Clause to impose such restrictions on private employers, the\nCourt held that the Tenth Amendment limits the exercise of otherwise\nplenary powers of Congress under the Commerce Clause when the\nexercise of those powers would impermissibly intrude upon traditional\nstate governmental functions:\nIt is one thing to recognize the authority of Congress to\nenact laws regulating individual businesses necessarily\nsubject to the dual sovereignty of the government of the\nNation and of the State in which they reside. It is quite\nanother to uphold a similar exercise of congressional au\xc2\xad\nthority directed, not to private citizens, but to the States\nas States. We have repeatedly recognized that there are\nattributes of sovereignty attaching to every state govern\xc2\xad\nment which may not be impaired by Congress, not be\xc2\xad\ncause Congress may lack an affirmative grant of legisla\xc2\xad\ntive authority to reach the matter, but because the Consti\xc2\xad\ntution prohibits it from exercising the authority in that\nmanner.\nId. at 845.\n\nThe Court concluded that, since application of the Fair Labor Stand\xc2\xad\nards Act to employees of states and their political subdivisions would\n\xe2\x80\x9csignificantly alter or displace the States\xe2\x80\x99 abilities to structure employee-employer relationships in such areas as fire prevention, police\nprotection, sanitation, public health, and parks and recreation,\xe2\x80\x9d id. at\n851\xe2\x80\x94areas in which the states have traditionally provided services to\ntheir citizens\xe2\x80\x94Congress lacked authority to extend the coverage of the\nAct to such employees. In a concurring opinion, Justice Blackmun,\nwho joined the Court\xe2\x80\x99s opinion and whose vote was necessary to form\nthe Court majority, appeared to temper the Court\xe2\x80\x99s opinion by reading\n143\n\n\x0cit to permit federal intrusion on state sovereignty \xe2\x80\x9cwhere the federal\ninterest is demonstrably greater and where state facility compliance\nwith imposed federal standards would be essential.\xe2\x80\x9d Id. at 856. Four\nJustices dissented from the Court\xe2\x80\x99s decision.\nIn our view, regardless of whether the language of the Court\xe2\x80\x99s\nopinion is taken literally or whether the \xe2\x80\x9cbalancing approach\xe2\x80\x9d as articu\xc2\xad\nlated by Justice Blackmun is applied, the proposed legislation for man\xc2\xad\ndatory incarceration of federal pre-trial detainees in local detention\nfacilities would present serious problems under the Tenth Amendment.\nThe opinion focuses on interference with local government policies and\ntraditional state governmental functions and the displacement of local\npolicy decisions. It is clear that the administration of a jail is a tradi\xc2\xad\ntional state governmental function. Wentworth v. Solem, 548 F.2d 773\n(8th Cir. 1977). Cf. Johnson v. Avery, 393 U.S. 483, 486 (1969) (\xe2\x80\x9cThere\nis no doubt that discipline and administration of state detention facilities\nare state functions. They are subject to federal authority only where\nparamount federal constitutional or statutory rights supervene.\xe2\x80\x9d).\nMeachum v. Fano, A ll U.S. 215, 229 (1976) (\xe2\x80\x9cThe federal courts do not\nsit to supervise state prisons, the administration of which is of acute\ninterest to the states.\xe2\x80\x9d).\nIn reaching our conclusion, we recognize that it could be argued that\nN ational League o f Cities is not applicable to the proposal in question\nhere because the proposed legislation, assuming that it would not also\ndirect the states in the administration of their pre-trial detention facili\xc2\xad\nties, would not directly usurp the decisionmaking functions of the states\nin the administration of their prison facilities. We are not convinced,\nhowever, that legislation must directly supplant state decisionmaking to\nrun afoul of the principles of National League o f Cities. It is clear from\nthe opinion that the Court was concerned primarily with the effect of\nlegislation on \xe2\x80\x9cthe traditional ways in which the local governments\nhave arranged their affairs.\xe2\x80\x9d 426 U.S. at 849. If, as noted in your\nrequest, this legislation is necessary because state and local governments\nare refusing to continue contracting to house federal pre-trial detainees\nbecause of overcrowding, a requirement that they provide facilities,\nregardless of the overcrowding of state and local facilities, may force\nthe states, even with some statutory fee provided, to reallocate their\nfacilities or at worst either to detain fewer persons or to construct more\ndetention facilities.1 The proposed legislation might then be regarded as\ninterfering substantially, though arguably less directly than the legisla\xc2\xad\ntion invalidated in National League o f Cities, with the states\xe2\x80\x99 administra\xc2\xad\ntion of their prison facilities.\n1 T he states, with already crowded facilities, would be placed in a particularly difficult position by\nthe proposed legislation because, unless they acted to relieve any overcrowding caused by housing\nfederal pre-trial detainees, they could be found by a federal court to have denied the detainees due\nprocess and ordered to eliminate the overcrowding. See Campbell v. Cauthron, 623 F.2d 503 (8th Cir.\n1980). See also Bel/ v. Wolfish, 441 U.S. 520 (1979).\n\n144\n\n\x0cMoreover, under Justice Blackmun\xe2\x80\x99s balancing test, the intrusion may\nbe less justifiable than the intrusion held to be impermissible in National\nLeague o f Cities. The federal interest served by the proposed legislation\nappears to be primarily that of saving the cost to the federal govern\xc2\xad\nment of constructing and administering pre-trial detention facilities for\nits detainees. In cities where there are relatively few federal detainees,\nit would obviously be more efficient to use existing state facilities than\nto construct new federal facilities. That interest, however, does not\nseem to be \xe2\x80\x9cdemonstrably greater\xe2\x80\x9d than the state interest in avoiding\nfurther overcrowding of its facilities so as to justfy the intrusion.\nThere is also a line of cases decided prior to National League o f Cities\nwhich suggests that this proposal could be considered as far more\nintrusive than imposing wage and hour restrictions on state govern\xc2\xad\nments because it imposes an affirmative obligation on the states and\ntheir subdivisions to perform a federal function. In Prigg v. Pennsylva\xc2\xad\nnia, 41 U.S. (16 Pet.) 539, 615-16 (1842), and more clearly in Kentucky\nv. Dennison, 65 U.S. (24 How.) 66, 107 (1860), the Supreme Court held\nthat, while Congress may delegate the performance of federal functions\nto state officers, the principles of federalism deprive Congress of the\npower to require state officers to perform such functions:\nIndeed such a power would place every State under the\ncontrol and dominion of the General Government, even\nin the administration of its internal concerns and reserved\nrights. A nd we think it clear, that the Federal Government,\nunder the Constitution, has no power to impose on a State\nofficer, as such, any duty whatever, and compel him to\nperform it; for if it possessed this power, it might overload\n\nthe officer with duties which would fill up all his time,\nand disable him from performing his obligations to the\nState, and might impose on him duties of a character\nincompatible with the rank and dignity to which he was\nelevated by the State.\n65 U.S at 107-108 (emphasis added). While the Court has implicitly\nrecognized exceptions to this principle when a specific federal power in\nthe Constitution was clearly intended to intrude upon state sovereignty,\nFitzpatrick v. Bitzer, A ll U.S. 445, 456 (1976) (Fourteenth Amendment);\nCity o f Rome v. United States, 446 U.S. 156, 178-80 (1980) (Fifteenth\nAmendment), the general principle has not been expressly disavowed\n\n145\n\n\x0cby the Court 2 and continues to be regarded by commentators 3 and\nlower courts as still viable.\nIn a series of court of appeals decisions criticizing regulations pro\xc2\xad\nmulgated by the Environmental Protection Agency (EPA) which\nwould have required states to enact statutes and to administer and\nenforce EPA programs, three circuit courts criticized those regulations\nas intruding upon state sovereignty in violation of the Tenth Amend\xc2\xad\nment. In District o f Columbia v. Train, 521 F.2d 971 (D.C. Cir. 1975),\nthe court emphasized that the EPA could not, consistent with the\nTenth Amendment, \xe2\x80\x9ccommandeer the regulatory powers of the states,\nalong with their personnel and resources, for use in administering and\nenforcing a federal regulatory program against the owners of motor\nvehicles.\xe2\x80\x9d Id. at 992. See also Brown v. EPA, 521 F.2d 827, 841 (9th Cir.\n1975) citing Dennison and Prigg; M aryland v. EPA, 530 F.2d 215 (4th\nCir. 1975). The Supreme Court granted certiorari to review these cases\nbut did not render an opinion on the merits because the Government in\nits brief conceded the need to modify its regulations. EPA v. Brown, 431\nU.S. 99 (1977).4\nFinally, there is some historical evidence, which is far from conclu\xc2\xad\nsive, that the first and subsequent Congresses may have believed that\nthey were not empowered by the Constitution to require unwilling\n2 Recently, the Supreme Court, in discussing the legislative history of 42 U.S.C. \xc2\xa7 1983 in MonelJ v.\nNew York City Dept, o f Social Services, 436 U.S. 658, 676 (1978), suggested in dictum that a line of\ncases which included Dennison and Prigg had not survived as precedent. It is not clear what, if any,\nw eight should be given to that dictum , however, because the Court cited E x parte Virginia, 100 U.S.\n(10 O tto) 339, 347-48 (1879) as support\xe2\x80\x94a case which held Dennison inapplicable because the\nFourteenth Amendment expressly gave Congress the authonty to interfere with and compel action by\nstate officers in matters covered by the Amendment.\n3 See Hart, The Relations Between State and Federal Law, 54 Colum. L. Rev 489, 515-17 (1954)\n(\xe2\x80\x9cT aney\xe2\x80\x99s statement [in Dennison] can stand today, if w e except from it certain pnm ary duties of state\njudges and occasional remedial duties of other state officers. Both exceptions, it will be observed,\ninvolve enforcem ent through the orderly and ameliorating forms o f the judicial process. In any event,\nexperience with the exceptions does little to bring into question the principle of the rule.")\n4 Recently, a district court in Mississippi declared unconstitutional provisions in the Public Utility\nRegulations Policies A ct of 1978 (PU RPA ), Pub. L. No. 95-617, 92 Stat. 3117, which required state\nregulatory authorities to implement, when appropriate, certain federal standards against utilities.\nFederal Energy Regulatory Commission v Mississippi, No. J. 79-212(c) (S.D. Miss. February 27, 1981).\nF E R C and the D epartm ent of Energy filed a joint notice of appeal to the Supreme Court on March\n13, 1981. As pointed out in the Jurisdictional Statement filed by the Solicitor General in this case and\nearlier by an opinion o f this Office (Memorandum from Deputy Assistant Attorney General Mary C.\nLaw ton to Assistant Attorney General John H. Shenefleld dated November 9, 1978), Titles I and III\no f PU R PA permit the states to choose whether to implement the federal standards and, therefore, do\nnot impermissibly intrude on the states\xe2\x80\x99 sovereignty. Title II o f PURPA is closer to the proposed\nlegislation because it requires state regulatory authorities to implement rules promulgated by FER C,\nalbeit allow ing such authorities considerable discretion in deciding how to implement the rules. The\nSolicitor General argues in his Jurisdictional Statement that, because discretion is permitted in the\nimplementation o f the rules, any intrusion on the states\xe2\x80\x99 sovereignty is minimal and, in any event,\njustified by the paramount federal interest in dealing with the energy crisis. Appellant\xe2\x80\x99s Jurisdictional\nStatement at 21-23, F E R C v. Mississippi, No. 80-1749 (October Term, 1980). Although PURPA is\ndifferent in several respects from the legislation proposed here, Supreme Court review of PURPA\nmay shed some light on the question o f what if any obligations to enforce federal law may be imposed\non the states. [N o t e : In FERC v. Mississippi, 456 U.S. 742 (1982), the Supreme Court held that Titles I\nand III o f PU R PA w ere not unconstitutional on T enth Amendment grounds, finding that they \xe2\x80\x9csimply\ncondition continued state involvement in a pre-emptible area on the consideration of federal propos\xc2\xad\nals.\xe2\x80\x9d 456 U.S. at 765. Ed.]\n\n146\n\n\x0cstates to house federal detainees.5 When the federal government was\nfounded, it presumably would have been prohibitively expensive for the\nnew government to provide its own prison facilities to house federal\nprisoners scattered throughout the original 13 states. Congress dealt\nwith this problem not by requiring the states to make their facilities\navailable to the federal government, but by adopting a joint resolution\non September 23, 1789, recommending \xe2\x80\x9cto the legislatures of the several\nStates to pass laws, making it expressly the duty of the keepers of their\ngaols, to receive and safe keep therein all prisoners committed under\nthe authority of the United States\xe2\x80\x9d and authorizing payment to the\nstates for the use of their jails. 1 Stat. 96-97 (1789). The joint resolution\npassed both Houses of Congress without any recorded debate.6 Thus,\nwe do not know whether the decision by the first Congress to recom\xc2\xad\nmend to the states that they permit the federal government to use their\nprison facilities, rather than requiring them to provide the facilities, was\nmotivated by a belief that Congress lacked the power to require the\nlatter or that the former was merely politically more acceptable.\nCongress\xe2\x80\x99 action in 1821, however, when some states apparently\nrefused to permit the federal government to continue to use their prison\nfacilities, lends some support to the inference that the early Congresses\nbelieved that they lacked the power to require the states to provide\nfacilities. From a joint resolution adopted by Congress in 1821,7 it\nappears that some states, having followed Congress\xe2\x80\x99 recommendation in\n1789 to permit the use of their prison facilities by the federal govern\xc2\xad\nment, subsequently decided to withdraw their permission. Congress\nresponded to that withdrawal, not by requiring the states to make their\nfacilities available to the federal government, but by authorizing the\nmarshal, in those states that had withdrawn their permission, to \xe2\x80\x9chire a\nconvenient place to serve as a temporary jail, and to make the neces\xc2\xad\nsary provision for the safe keeping of prisoners committed under the\nauthority of the United States, until permanent provision shall be made\nby law for that purpose.\xe2\x80\x9d 3 Stat. 646-47 (1821). See also 4 Stat. 118\n(1825) and 4 Stat. I l l (1835) (authorizing the courts to order execution\n5 If such a belief were expressed clearly, which il is not, it would be considered a contemporaneous\nconstruction of the Constitution, followed since the founding of the government, and entitled to great\nweight in determining the scope o f Congress\xe2\x80\x99 power. Cf. E x parte Quirtn, 317 U S. 1, 41-42 (1942),\nWilliams v United States, 289 U S. 553, 573-74 (1933)\n6 1 Debates in Congress, 86, 938 (Gales & Seaton eds 1789).\n7 Resolved by the Senate and House o f Representatives o f the United States o f America, in Congress\nassembled. That where any state or states, having complied with the recommendation of Congress, in\nthe resolution of the twenty-third day of September, one thousand seven hundred and eighty-nine,\nshall have withdrawn, or shall hereafter withdraw, either in whole or in part, the use of their jails for\nprisoners committed under the authority of the United States, the marshal in such state or states, under\nthe direction of the judge of the district, shall be, and hereby is, authorized and required to hire a\nconvenient place to serve as a temporary jail, and to make the necessary provision for the safe keeping\nof prisoners committed under the authonty of the United States, until permanent provision shall be\nmade by law for that purpose; and the said marshal shall be allowed his reasonable expenses, incurred\nfor the above purposes, to be paid out of the Treasury of the United States. Act of March 3, 1821, 3\nStat. 646-47 (1821).\n\n147\n\n\x0cof prison sentences in state prisons where \xe2\x80\x9cthe use of which shall be\nallowed and authorized by the legislature of the state for such pur\xc2\xad\nposes.\xe2\x80\x9d); 13 Stat. 74-75 (1864) (authorizing the Secretary of the Interior\nto contract with state authorities for the use of prison facilities for\npersons convicted of federal crimes in the territories); 13 Stat. 500\n(1865) (authorizing courts to order execution of prison sentences longer\nthan 1 year in state prisons where use of the prison is authorized by the\nstate legislature). Again, there is nothing in the legislative history to\nindicate that Congress believed that it lacked power to require the\nrecalcitrant states to make their facilities available to the federal gov\xc2\xad\nernment; Congress may have been merely reluctant to exercise this\npower. Thus, we cannot conclude on the basis of this history that the\nTenth Amendment precludes such a requirement, but we believe it\nprovides some insight into the sensitive manner with which this issue\nhas been treated by Congress since the founding of our government.\nTherefore, while we cannot be certain that the proposed legislation\nwould be unconstitutional, we believe that it would raise a serious\nquestion under the Tenth Amendment whether Congress, on enacting\nsuch legislation, had impermissibly intruded upon the states\xe2\x80\x99 sover\xc2\xad\neignty. We suggest that you consider, as an alternative, a statutory\nscheme which would induce, rather than coerce, the states to cooperate\nin making their detention facilities available to the federal government.\nCongress, by invoking its power under the Spending Clause, could\ncondition the availability of some grant program to individual states on\nthe cooperation of the states in providing detention facilities for federal\npre-trial detainees. Such legislation should, however, be carefully for\xc2\xad\nmulated because the Court has recently reaffirmed its warning that\n\xe2\x80\x9c[t]here are limits on the power of Congress to impose conditions on\nthe States pursuant to its Spending Power.\xe2\x80\x9d Pennhurst State School and\nH ospital v. Halderman, 451 U.S. 1, 17 n. 13 (1981).8 However, if the\nlegislation is not coercive and would contemplate that the states would\nreceive benefits reflecting the incremental costs (including costs attrib\xc2\xad\nutable to administrative and capital costs) of housing the federal detain\xc2\xad\nees in state facilities, the burden and coercive effect on the states should\nnot be considered excessive and such legislation would probably be\nupheld. I would imagine that there are already federal subsidies to state\nprison facilities, and it might be feasible to condition receipt of a\nportion of such subsidies on the willingness to provide facilities (for\ncompensation) for federal pre-trial detainees. If you would like to\n\n8 F or example, statutory inducements cannot be used as \xe2\x80\x9c weapons of coercion, destroying or\nimpairing the autonomy of the states.\xe2\x80\x9d Steward Machine Co. v. Davis, 301 U.S. 548, 586 (1937)\n\n148\n\n\x0cconsider such an approach, we will be happy to assist further with the\nformulation of such legislation.\nT h e o d o r e B. O lson\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n149\n\n\x0c'


b'18 U.S.C. \xc2\xa7 207 and the Government of Guam\n18 U.S.C. \xc2\xa7 207(a)(1) prohibits a form er Department of the Navy employee from representing the\nGovernm ent o f Guam before the Federal Maritime Commission in a litigation in which he partici\xc2\xad\npated personally and substantially while employed by the Navy.\n\nSeptember 12, 1996\nM e m o r a n d u m O p in io n f o r t h e D ir e c t o r\nO f f ic e o f G o v e r n m e n t E t h ic s\nY o u have asked for our opinion whether 18 U.S.C. \xc2\xa7 207(a)(1) bars a former\nemployee from representing the Government of Guam in a litigation in which\nhe participated personally and substantially while employed by the Department\nof the Navy. See Letter for Walter Dellinger, Assistant Attorney General, Office\nof Legal Counsel, from Stephen D. Potts, Director, Office of Government Ethics\n(June 25, 1996) (\xe2\x80\x9c Potts Letter\xe2\x80\x9d )- We conclude that the statute forbids the rep\xc2\xad\nresentation. 1\nWhile an attorney with the Navy\xe2\x80\x99s Military Sealift Command (\xe2\x80\x9c MSC\xe2\x80\x9d ), the\nformer employee represented the MSC in a case before the Federal Maritime Com\xc2\xad\nmission (\xe2\x80\x9c FMC\xe2\x80\x9d ), Government o f Guam v. Sea-Land Service, Inc., Docket No.\n89-26. He has now joined the law firm representing the Government of Guam\nin the case. He wishes to appear on behalf of Guam before the FMC and in any\nsubsequent judicial review proceedings.\n\nSection 207(a)(1) provides:\nAny person who is an officer or employee . . . of the executive\nbranch of the United States . . ., or of the District of Columbia,\nand who, after the termination of his or her service or employment\nwith the United States or the District of Columbia, knowingly\nmakes, with the intent to influence, any communication to or ap\xc2\xad\npearance before any officer or employee of any department, agency,\ncourt, or court-martial of the United States or the District of Colum\xc2\xad\nbia, on behalf of any other person (except the United States or the\nDistrict of Columbia) in connection with a particular matter\xe2\x80\x94\n(A) in which the United States . . . is a party or has a direct and\nsubstantial interest,\n1 Section 207(a)(1) covers a former em ployee\xe2\x80\x99s \xe2\x80\x9c communication to or appearance before1\' agencies and courts,\nmade \xe2\x80\x9c w ith the intent to influence." Here, w e use forms o f the word \xe2\x80\x9c represent\xe2\x80\x9d as a shorthand, without meaning\nto specify the exact scope o f the statute. T here is no dispute in the present case that the former employee would\nbe engaged in \xe2\x80\x9c co m m u n icatio n ^]\xe2\x80\x9d and \xe2\x80\x9d appearance[s]M within the meaning o f the law.\n\n326\n\n\x0c18 U.S.C. \xc2\xa7 207 and the Government o f Guam\n\n(B) in which the person participated personally and substantially\nas such officer or employee, and\n(C) which involved a specific party or specific parties at the time\nof such participation,\nshall be punished as provided in section 216 of this title.\nHere, the former employee, while with the MSC, \xe2\x80\x9c participated personally and\nsubstantially\xe2\x80\x9d in the \xe2\x80\x9c particular matter\xe2\x80\x9d in question, which involves \xe2\x80\x9c specific\nparties.\xe2\x80\x9d See Potts Letter at 2. The former employee, however, makes two basic\narguments that the statute does not apply. First, he argues that Guam is not a\n\xe2\x80\x9c person\xe2\x80\x9d under \xc2\xa7207 and that his representation is, therefore, not \xe2\x80\x9c on behalf\nof any other person.\xe2\x80\x9d See Memorandum for the Director, U.S. Office of Govern\xc2\xad\nment Ethics, from Former Employee, Re: Request fo r Advisory Opinion Con\xc2\xad\ncerning the Application o f 18 U.S.C. \xc2\xa7 207(a)(1), at 3 (Feb. 26, 1996). Second,\nhe argues that his representation is not on behalf of a person \xe2\x80\x9c except the United\nStates,\xe2\x80\x9d because Guam is an instrumentality of the United States. Id. at 3-4. He\nmaintains, in addition, that his representation would square with the policy of\nthe statute because Guam and the MSC have no adverse interests in the FMC\nproceedings, and he urges the relevance of the principle that criminal statutes must\nbe strictly construed. Id. at 4-5. These arguments are unpersuasive.\nFirst, although Guam is not a \xe2\x80\x9c person\xe2\x80\x9d under some other statutes, see, e.g.,\nNgiraingas v. Sanchez, 495 U.S. 182 (1990) (Guam not a \xe2\x80\x9c person\xe2\x80\x9d under 42\nU.S.C. \xc2\xa7 1983), it is a \xe2\x80\x9c person\xe2\x80\x9d under \xc2\xa7207. That provision treats even the United\nStates and the District of Columbia as persons; it applies to representation of \xe2\x80\x9c any\nother person (except the United States or the District of Columbia).\xe2\x80\x9d It also treats\nstate and local governments as \xe2\x80\x9c persons\xe2\x80\x9d : a one-year \xe2\x80\x9c cooling o f f \xe2\x80\x99 period for\nrepresentation by former high-level officials of \xe2\x80\x9c persons other than the United\nStates,\xe2\x80\x9d 18 U.S.C. \xc2\xa7 207(c), (d) & (e), is expressly made inapplicable to represen\xc2\xad\ntation undertaken by employees of state and local governments, on behalf of those\ngovernments. See id. \xc2\xa7207(j)(2)(A). Representation of state or local governments\nby former federal employees, therefore, could violate \xc2\xa7 207(a)(1), the provision\nat issue here. By providing exemptions for work on behalf of the United States,\nthe District of Columbia, and (in some circumstances) state and local governments,\nand by restricting certain other work on behalf of state and local governments,\nthe statute bespeaks an intent to cover units of government as \xe2\x80\x9c persons.\xe2\x80\x9d Cf.\nUnited States v. Smith, 499 U.S. 160, 167 (1991) (quoting Andrus v. G lover\nConstr. Co., 446 U.S. 608, 616-17 (1980)) (\xe2\x80\x9c \xe2\x80\x98Where Congress explicitly enumer\xc2\xad\nates certain exceptions to a general prohibition, additional exceptions are not to\nbe implied, in the absence of evidence of a contrary legislative intent.\xe2\x80\x99 \xe2\x80\x9d ). Guam\nis therefore a \xe2\x80\x9c person\xe2\x80\x9d under \xc2\xa7207.\n327\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nSecond, although Guam is an \xe2\x80\x9c instrumentality of the federal government\xe2\x80\x9d for\nsome purposes, see Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1286,\n1289 (9th Cir. 1985), cert, denied, 475 U.S. 1081 (1986) (Commerce Clause and\nantitrust laws), it is not the \xe2\x80\x9c United States\xe2\x80\x9d for purposes of \xc2\xa7207. It would be\nanomalous for Guam to be an instrumentality of the United States under a statute\nthat even treats the United States and the District of Columbia as separate entities.\nSection 207(a)(1) applies to \xe2\x80\x9c any communication to or appearance before any\nofficer or employee . . . of the United States or the District of Columbia, on\nbehalf of any other person (except the United States or the District of Columbia),\xe2\x80\x9d\nand clarifies that former officials of the United States may communicate to or\nappear before officers and employees of the District of Columbia, and vice versa.\n18 U.S.C. \xc2\xa7 207(a)(3). Thus, the District of Columbia is not covered by the term\n\xe2\x80\x9c the United States\xe2\x80\x9d in \xc2\xa7207, and there is no apparent reason why an unincor\xc2\xad\nporated territory with its own government, see, e.g., 48 U.S.C. \xc2\xa7\xc2\xa71421-1423,\nshould receive different treatment.\nFurthermore, \xc2\xa7 207 is aimed, among other things, at preventing former employ\xc2\xad\nees of the United States from \xe2\x80\x9c switching sides\xe2\x80\x9d in particular matters involving\nspecific parties, such as litigation. See, e.g., 5 C.F.R. \xc2\xa7 2637.101(c)(1) (1996).2\nGuam and the United States may now appear separately in litigation and take\nopposite sides. As Judge (now Justice) Kennedy explained, \xe2\x80\x9c the executive branch\nof the Government of Guam [before 1971] might have been deemed under the\ncontrol of the United States\xe2\x80\x9d as to litigation, because the Governor was appointed\nby the President with the advice and consent of the Senate, but\n[o]nce the Governorship of Guam was made an elected office, the\nUnited States relinquished its control over the executive of the Gov\xc2\xad\nernment of Guam. The executive branch is responsible now to the\npeople of Guam. That the Government of Guam is now capable\nof acting independently of the United States in deciding whether\nto sue the United States is evidenced by the institution of the\npresent action.\nG overnm ent o f Guam v. United States, 744 F.2d 699, 701 (9th Cir. 1984). Given\n\nthis possibility of conflict between the United States and Guam and given the\nstatutory structure, we believe that Guam does not fall within the term \xe2\x80\x9c the United\nStates\xe2\x80\x9d as used in \xc2\xa7207.\nTo be sure, there may be some instances where, even within the executive\nbranch of the federal government, an employee who leaves one agency and joins\n2 H ie statute is also designed to restrict trading on past friendships and associations and prevent the unfair use\no f inside information. 5 C.F.R. \xc2\xa72637.101(c)(2), Roswell B. Perkins, The New Federal Conflict-of-interest Law ,\n76 Harv. L. Rev. 1113, 1121 (1963). (The regulation cited, 5 C.F.R. \xc2\xa72637.I01(c), applies only to persons who\nleft the governm ent before statutory amendments became effective on January 1, 1991, but the earlier regulations\n\xe2\x80\x9c remain []persuasive\xe2\x80\x9d to the extent the statute has not changed. Office o f Government Ethics, Summary o f PostEm ploym ent R estrictions o f 18 U.S.C. \xc2\xa7207, at 1 (Nov. 4, 1992).)\n\n328\n\n\x0c18 U.S.C. \xc2\xa7 207 and the Government o f Guam\n\nanother might \xe2\x80\x9c switch sides\xe2\x80\x9d in some sense, and yet \xc2\xa7207 would not apply:\n\xe2\x80\x9c A prime example of this is the activities of the Federal Labor Relations Author\xc2\xad\nity. It is basically an intra-govemmental regulatory body whose employees some\xc2\xad\ntimes come from other agencies having worked on pending matters before the\nFLRA or who may wish to leave [the] FLRA for an agency which has a matter\npending at the FLRA in which they are officially involved.\xe2\x80\x9d OGE Informal Opin\xc2\xad\nion 86x1 (1986). We do not believe, however, that these instances are analogous\nto the present case. The employee who transfers from one executive agency to\nanother remains under the control of the executive branch and subject to its ethics\nregulations. As the Office of Government Ethics has noted, \xe2\x80\x9c [t]he FLRA . . .\nhas been very sensitive to these situations and has used its standards of conduct\nto provide guidance for its employees.\xe2\x80\x9d Id. Congress has left these conflicts to\nbe policed by regulations issued by agencies plainly within the United States gov\xc2\xad\nernment; it hardly follows that \xc2\xa7207 should be construed as inapplicable to an\nentity \xe2\x80\x9c capable of acting independently of the United States.\xe2\x80\x9d Government o f\nGuam, 744 F.2d at 701.\nWe may assume, as the former employee argues, that the United States and\nGuam do not have adverse interests in the action before the FMC and that there\nis no \xe2\x80\x9c reasonably probable scenario\xe2\x80\x9d for future adversity. See Memorandum from\nMSC Designated Agency Ethics Official, Re: Government o f the Territory o f\nGuam et al. v. Sea-Land and APL, FMC D ocket No. 8 9 -2 6 (Feb. 23, 1996). But\n\xc2\xa7207 is a prophylactic statute that is \xe2\x80\x9c intended to prevent even the appearance\nof wrongdoing and that may apply to conduct that has caused no actual injury\nto the United States.\xe2\x80\x9d Crandon v. United States, 494 U.S. 152, 164 (1990) (de\xc2\xad\nscribing another conflict of interest law, 18 U.S.C. \xc2\xa7209). It creates a prohibition\napplicable to specified types of circumstances, as listed in the statute, where con\xc2\xad\nflicts may arise. On its face, the language of \xc2\xa7 207 draws no distinction between\nmatters in which the interests of the person represented by the former employee\ncoincide with the interests of the United States and those in which the interests\ndiverge or are adverse. The statute reaches \xe2\x80\x98\xe2\x80\x98any investigation, application, request\nfor a ruling or determination, rulemaking, contract, controversy, claim, charge,\naccusation, arrest, or judicial or other proceeding.\xe2\x80\x9d 18 U.S.C. \xc2\xa7207(i)(3) (empha\xc2\xad\nsis added). Thus, \xe2\x80\x9c [a] former employee does not act on behalf of the United\nStates . . . merely because the United States may share the same objective as\nthe person whom the former employee is representing.\xe2\x80\x9d Office of Government\nEthics, Summary o f Post-Employment Restrictions o f 18 U.S.C. \xc2\xa7 2 0 7 , at 4 (Nov.\n4, 1992).\nAlthough (under an earlier version of \xc2\xa7 207) we found that a former employee\nwould not be an agent of another person with regard to a contract unless there\nwas \xe2\x80\x9c an ingredient of at least inchoate adversariness,\xe2\x80\x9d Former Officers and Em\xc2\xad\nployees\xe2\x80\x94 Conflict o f Interest (18 U.S.C. \xc2\xa7 2 0 7 ) \xe2\x80\x94 Contract\xe2\x80\x94 Disqualification\nConnected with Form er D uties or Official Responsibilities, 2 Op. O.L.C. 313,\n329\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\n316 (1978), the justification for this conclusion was that \xe2\x80\x9c [a]side from a contract,\nthe other listed matters [in the definition of \xe2\x80\x98particular matter\xe2\x80\x99] appear to be preg\xc2\xad\nnant with at least some adversariness (in the sense of urging a point of view)\nin all their aspects,\xe2\x80\x9d id. See a lso OGE Informal Opinion 80x4 (1980); 5 C.F.R.\n\xc2\xa72637.201 (b)(5) (1996). With regard to litigation in which the United States is\na party or has a direct and substantial interest and in which a former employee\nrepresents a participant in the case, it is irrelevant whether the former employee\nwill be advancing a position aligned with the government\xe2\x80\x99s:\nAn attorney participated in preparing the Government\xe2\x80\x99s antitrust ac\xc2\xad\ntion against Z Company. After leaving the Government, she may\nnot represent Z Company in a private antitrust action brought\nagainst it by X Company on the same facts involved in the Govern\xc2\xad\nment action. N or may she represent X Company in that matter.\n5 C.F.R. \xc2\xa72637.201 (c)(5), Ex. 1 (emphasis added). That the interests of the United\nStates and Guam are aligned in the present case does not alter our conclusion\nabout the applicability of \xc2\xa7 207.3\nRICHARD L. SHIFFRIN\nD eputy A ssistant Attorney General\nOffice o f Legal Counsel\n\n3 The form er em ployee also relies on the rule o f lenity, under which \xe2\x80\x9c \xe2\x80\x98when choice has to be made between\ntw o readings o f what conduct Congress has m ade a crim e, it is appropriate, before we choose the harsher alternative,\nto require that Congress should have spoken in language that is clear and d efin ite/ \xe2\x80\x9d United States v. Bass, 404\nU.S. 336, 347 (1971) (quoting United States v. Universal CJ.T. Credit Corp., 344 U.S. 218, 221-22 (1952)). There\nm ay be som e doubt how that rule applies to prospective ethics advice, where the \xe2\x80\x9c need for fair w arning\xe2\x80\x9d underlying\nthe rule is met by the advice itself. See United States v. R.L.C., 503 U.S. 291, 306 n.6 (1992) (plurality opinion);\nLiparota v. United States, 471 U.S. 419, 427 (1985); but see R.L.C., 503 U.S. at 309 (Scalia, J., concurring in\npart and concurring in the judgment) (rule o f lenity also \xe2\x80\x98\xe2\x80\x98assur[es] that the society, through its representatives,\nhas genuinely called for the punishment to b e meted o u t\xe2\x80\x9d ). In any event, we believe that \xc2\xa7207(a) is unambiguous\nin its application here and so do not resort to the rule o f lenity for guidance. See Lewis v. United States, 445\nU.S. 55, 65 (1980) (the \xe2\x80\x9c touchstone\xe2\x80\x9d of the rule o f lenity \xe2\x80\x9c is statutory ambiguity\xe2\x80\x9d ).\n\n330\n\n\x0c'