b'Designation of Acting Solicitor of Labor\nEugene Scalia, now serving as the Solicitor for the Department of Labor under a recess appointment,\ncould be given a second position in the non-career Senior Executive Service in the Department of\nLabor before or after his recess appointment expires and, while serving in his non-career Senior\nExecutive Service position, could be designated as the Acting Solicitor after his recess appointment\nexpires.\n\nNovember 15, 2002\n\nMEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT\nYou have asked whether Eugene Scalia, now serving as the Solicitor for the\nDepartment of Labor under a recess appointment, could be designated the Acting\nSolicitor after his recess appointment expires. You have asked us to address two\nscenarios. Under the first scenario, Mr Scalia would be given a second position in\nthe non-career Senior Executive Service in the Department of Labor before his\nrecess appointment expires. Under the second scenario, he would be given the\nnon-career Senior Executive Service position in the Department of Labor after his\nrecess appointment expires. We conclude, for the reasons stated below, that under\neither scenario Mr. Scalia could be designated, while serving in his non-career\nSenior Executive Service position, as the Acting Solicitor after his recess\nappointment expires.\nOn April 30, 2001, the President nominated Eugene Scalia to be Solicitor for\nthe Department of Labor. 147 Cong. Rec. 6508 (2001). After the Senate returned\nall pending nominations when it took a long intrasession recess, the President\nnominated Mr. Scalia again on September 4, 2001. 147 Cong. Rec. 16,339 (2001).\nOnce again, the Senate failed to act on the nomination. The President gave Mr.\nScalia a recess appointment during the Senate\xe2\x80\x99s recess from December 20, 2001,\nto January 23, 2002, and submitted his nomination to the Senate on February 5,\n2002. 148 Cong. Rec. 600 (2002). The Senate has not acted upon this last\nnomination, and Mr. Scalia\xe2\x80\x99s recess appointment will expire when the Senate next\nadjourns sine die. U.S. Const. art. II, \xc2\xa7 2, cl. 3.\nI.\nUnder either scenario, Mr. Scalia would lawfully hold a position in the noncareer Senior Executive Service. To begin with the second scenario: There is no\nquestion that Mr. Scalia may be given a position in the non-career Senior Executive Service in the Department of Labor after his recess appointment as Solicitor\nfor the Department of Labor expires. 1\n1\nIt is possible that an interruption in Mr. Scalia\xe2\x80\x99s government service\xe2\x80\x94i.e., the time between the\nexpiration of his recess appointment and the commencement of his work in the non-career Senior\n\n211\n\n227-329 VOL_26_PROOF.pdf 221\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nAs for the first scenario: We also believe that Mr. Scalia, while holding the\noffice of Solicitor for the Department of Labor by recess appointment, could\nsimultaneously hold a position in the non-career Senior Executive Service in the\nDepartment of Labor. We have repeatedly concluded that \xe2\x80\x9cthere is no longer any\nprohibition against dual office-holding.\xe2\x80\x9d Memorandum for Honorable John D.\nEhrlichman, Counsel to the President, from William H. Rehnquist, Assistant\nAttorney General, Office of Legal Counsel, at 2 (Feb. 13, 1969) (\xe2\x80\x9cRehnquist\nMemorandum\xe2\x80\x9d); see also Memorandum for James H. Thessin, Deputy Legal\nAdviser, Department of State, from Randolph D. Moss, Deputy Assistant Attorney\nGeneral, Re: Dual Office-Holding at 2 (Dec. 3, 1997) (\xe2\x80\x9cDual Office-Holding\xe2\x80\x9d);\nMemorandum for Philip B. Heymann, Deputy Attorney General, from Walter\nDellinger, Assistant Attorney General, Office of Legal Counsel, Re: Creation of\nan Office of Investigative Agency Policies (Oct. 26, 1993) (\xe2\x80\x9cOffice of Investigative\nAgency Policies\xe2\x80\x9d); Dual Office of Chief Judge of Court of Veterans Appeals and\nDirector of the Office of Government Ethics, 13 Op. O.L.C. 241, 242 (1989)\n(\xe2\x80\x9cDual Office\xe2\x80\x9d); Memorandum for Arnold Intrater, General Counsel, Office of\nWhite House Administration, from John O. McGinnis, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Dual Office of Executive Secretary of\nNational Security Council and Special Assistant (Mar. 1, 1988); Memorandum for\nthe Honorable George P. Williams, Associate Counsel to the President, from Leon\nUlman, Acting Assistant Attorney General, Office of Legal Counsel, Re: Dual\nAppointment (June 24, 1974); Memorandum for the Honorable Myer Feldman,\nSpecial Counsel to the President, from Norbert A. Schlei, Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Fixing of Salary of Director of Office of\nEconomic Opportunity (Aug. 19, 1964). In 1964, Congress repealed a statute\ngenerally barring the holding of more than one office, see Rehnquist Memorandum at 1, and the current statute forbidding the receipt of pay for holding more\nthan one position, 5 U.S.C. \xc2\xa7 5533 (2000), \xe2\x80\x9cimpliedly permits\xe2\x80\x9d dual officeholding. Dual Office, 13 Op. O.L.C. at 242. Furthermore, as we have pointed out,\nit is of no consequence if one of the offices to be held is Senate-confirmed and the\nother is not. See Rehnquist Memorandum at 2.\nA possible limit on the holding of two offices, however, may arise from the\ndoctrine of \xe2\x80\x9cincompatibility.\xe2\x80\x9d This doctrine, which existed in common law,\n\xe2\x80\x9cprecludes a person from holding two offices if public policy would make it\nimproper for the person to perform both functions, such as when the functions of\nthe offices are inconsistent with each other.\xe2\x80\x9d Office of Investigative Agency\nPolicies at 6 (citations omitted). \xe2\x80\x9cThe doctrine has been stated in various ways,\nsometimes tautologically, but usually states that offices that are incompatible \xe2\x80\x98are\nsuch as bear a special relation to each other; one being subordinate to and interferExecutive Service position\xe2\x80\x94might have certain adverse consequences for him. But this issue, which\nyou have not asked us to address, has no bearing on your question.\n\n212\n\n227-329 VOL_26_PROOF.pdf 222\n\n10/22/12 11:13 AM\n\n\x0cDesignation of Acting Solicitor of Labor\n\ning with the other so as, in the language of Coke, to induce the presumption that\nthey cannot be executed with impartiality and honesty.\xe2\x80\x99\xe2\x80\x9d Id. (quoting 3 McQuillin,\nThe Law on Municipal Corporations \xc2\xa7 12.67 (1982)). As we have noted, \xe2\x80\x9c[i]t is\narguable that [the doctrine] has either fallen into desuetude or been repealed by\nstatute.\xe2\x80\x9d Memorandum for Edward C. Schmults, Deputy Attorney General, from\nTheodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re:\nAppointment as Associate Attorney General at 3, 4 (June 14, 1983). But see United\nStates v. Thompson, 475 F.2d 1359, 1363 (5th Cir. 1973) (discussing whether\npositions have any \xe2\x80\x9cinherent\xe2\x80\x9d conflict). Even assuming the continued validity of\nthe doctrine, however, a recess appointee could be appointed to another office as\nlong as \xe2\x80\x9c[n]either office, as a matter of statute, reports to the other or reviews\ndeterminations that the other has made.\xe2\x80\x9d See Dual Office-Holding at 4.\nUnder the Dual Compensation Act, 5 U.S.C. \xc2\xa7 5533, the recess appointee could\nreceive the pay for only one of the offices. As we have interpreted the Act, the\nholder of two offices \xe2\x80\x9cmust be paid the higher salary if it is fixed by law,\xe2\x80\x9d because\nhe \xe2\x80\x9cwould otherwise be waiving a right to compensation established pursuant to\nstatute\xe2\x80\x94which is unlawful.\xe2\x80\x9d Dual Office, 13 Op. O.L.C. at 243 n.3 (citations\nomitted). 2\nII.\nUnder either of your two scenarios, we believe that, after expiration of his\nrecess appointment, Mr. Scalia may be designated under the Vacancies Reform\nAct, 5 U.S.C. \xc2\xa7\xc2\xa7 3345-3349d (2000), to act in the position he will have vacated\nwhen his recess appointment expired. Under the Vacancies Reform Act, the\nPresident \xe2\x80\x9cmay direct an officer or employee of [an] Executive agency to perform\nthe functions and duties of [a] vacant [Senate-confirmed] office temporarily in an\nacting capacity,\xe2\x80\x9d subject to specified time limits, provided that, during the year\npreceding the occurrence of the vacancy, the officer or employee served for at\nleast 90 days in a position in that agency for which the rate of pay equaled or\nexceeded the rate for GS-15 of the General Schedule. 5 U.S.C. \xc2\xa7 3345(a)(3). By\nvirtue of his non-career Senior Executive Service position with the Department of\nLabor, Mr. Scalia would be \xe2\x80\x9can officer or employee\xe2\x80\x9d of that agency, and, during\nthe year before the expiration of his recess appointment created a vacancy, he\nwould have served for at least 90 days in a position\xe2\x80\x94the office of Solicitor, to\nwhich he was recess appointed\xe2\x80\x94for which the pay exceeded the GS-15 rate. By\n\n2\nA Senior Executive Salary might, or might not, exceed the Executive Level IV pay of the Solicitor\nof Labor. Salaries in the Senior Executive Service cover a range. 5 U.S.C. \xc2\xa7 5382(a). The lowest level\nof Senior Executive Service pay, even with a \xe2\x80\x9clocality-based comparability\xe2\x80\x9d adjustment for Washington, D.C., see 5 U.S.C. \xc2\xa7 5304 (2000), would be less than the pay for Executive Level IV, while the\nhigher levels would exceed the pay for Executive Level IV.\n\n213\n\n227-329 VOL_26_PROOF.pdf 223\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nthe plain terms of the Vacancies Reform Act, he would be eligible to be designated\nto act. 3\nThere are two contrary arguments, the first based on the Vacancies Reform Act\nand the second on the Recess Appointments Clause. In our view, neither argument\nis persuasive.\nThe first argument is that, under the Vacancies Reform Act, the relevant vacancy would have occurred when the recess appointee\xe2\x80\x99s predecessor left office and\nthat the recess appointee, unless he qualified by virtue of service in the agency\nbefore then, would not be able to act in the position. The basis for this argument\nwould be the provision of the Vacancies Reform Act stating that the Act is the\nexclusive means for designation of an acting official, with two exceptions\xe2\x80\x94(1) a\nstatute expressly authorizing the President, a court, or a head of a department to\nname an acting official or a statute expressly designating an official to act, or\n(2) the Recess Appointments Clause of the Constitution. 5 U.S.C. \xc2\xa7 3347(a).\nAccording to this argument, the Vacancies Reform Act thus treats a recess\nappointment as identical to an acting designation, and an acting designation does\nnot fill an office but only assigns its duties and powers. The provisions of the\nVacancies Reform Act that allow designations of acting officials but set time\nlimits on their service, for example, contemplate that a \xe2\x80\x9cvacancy\xe2\x80\x9d occurs when the\noccupant dies or resigns or is otherwise unavailable (except as a result of sickness), 5 U.S.C. \xc2\xa7\xc2\xa7 3345-3346, and the departure of an acting official does not\ncreate a new vacancy. So, too, as this argument would go, the expiration of a\nrecess appointment does not create a new vacancy.\nThe language of the Vacancies Reform Act refutes this argument. While the\nstatute provides that an acting official only will \xe2\x80\x9cperform the functions and duties\nof the [vacant] office temporarily,\xe2\x80\x9d id. \xc2\xa7 3345(a)(1), (2), (3), it states that a recess\nappointment \xe2\x80\x9cfill[s] a vacancy,\xe2\x80\x9d id. \xc2\xa7 3347(a)(2). Therefore, when the recess\nappointment ends, a new vacancy is created. We accordingly would read the\nstatutory reference to recess appointments as simply making clear that Congress\ndid not intend, by the Vacancies Reform Act, to restrict the President\xe2\x80\x99s recess\nappointment power in any way.\nThe second argument is that, because an acting official has the same duties and\npowers as a recess appointee, a designation to act would extend the recess\nappointment past the constitutionally mandated limit of \xe2\x80\x9cthe End of [the Senate\xe2\x80\x99s]\nnext Session.\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 2, cl. 3. This argument, in our view, would\nignore the differences between holding an office and acting in it. An acting official\ndoes not hold the office, but only \xe2\x80\x9cperform[s] the functions and duties of the\n\n3\nA provision of the Vacancies Reform Act that, in some circumstances, forbids an official to act in\na position for which he has been nominated, 5 U.S.C. \xc2\xa7 3345(b)(1), does not apply if an official is\nacting pursuant to the President\xe2\x80\x99s designation. See Guidance on Application of the Federal Vacancies\nReform Act of 1998, 23 Op. O.L.C. 60, 64 (1999) (Question 15).\n\n214\n\n227-329 VOL_26_PROOF.pdf 224\n\n10/22/12 11:13 AM\n\n\x0cDesignation of Acting Solicitor of Labor\n\noffice.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3345(a)(1), (2), (3). He is not \xe2\x80\x9cappointed\xe2\x80\x9d to the office, but\nonly \xe2\x80\x9cdirect[ed]\xe2\x80\x9d or authorized to discharge its functions and duties, and he thus\nreceives the pay of his permanent position, not of the office in which he acts. See\n5 U.S.C. \xc2\xa7 5535(a) (2000). A recess appointee, on the other hand, is appointed by\none of the methods specified in the Constitution itself, see Swan v. Clinton, 100\nF.3d 973, 987 (D.C. Cir. 1996) (recess appointment is not an \xe2\x80\x9cinferior\xe2\x80\x9d procedure\nto appointment with Senate confirmation); he holds the office; and he receives its\npay. We therefore conclude that a designation to act would not unconstitutionally\nextend the tenure of a recess appointee.\nMr. Scalia\xe2\x80\x99s service as Acting Solicitor would be subject to the time limits in\n5 U.S.C. \xc2\xa7 3346. Ordinarily, an acting official\xe2\x80\x99s service, absent any further action,\nmay continue for 210 days from the occurrence of the vacancy. 5 U.S.C.\n\xc2\xa7 3346(a)(1). However, \xe2\x80\x9c[i]f a vacancy occurs during an adjournment of the\nCongress sine die, the 210-day period . . . shall begin on the day that the Senate\nfirst reconvenes.\xe2\x80\x9d Id. \xc2\xa7 3346(c). If the Senate does not adjourn sine die before the\nHouse, we believe that the vacancy here would occur \xe2\x80\x9cduring an adjournment sine\ndie of the Congress.\xe2\x80\x9d The office would be filled at all times that Congress was in\nsession, because the recess appointment would expire \xe2\x80\x9cat the End of [the Senate\xe2\x80\x99s] . . . Session.\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 2, cl. 3.\nNotwithstanding the usual 210-day limit, if the President submitted a nomination for the vacant office (including a nomination of Mr. Scalia), Mr. Scalia\xe2\x80\x99s\nservice could continue as long as the nomination was pending in the Senate. Id.\n\xc2\xa7 3346(a)(2). If the Senate rejected or returned the nomination or the President\nwithdrew it, a new 210-day period would begin. Id. \xc2\xa7 3346(b)(1). Once again,\nhowever, if the President submitted a nomination, the service could continue while\nthe nomination was pending. Id. \xc2\xa7 3346(b)(2). Rejection, return, or withdrawal of\nthe nomination would start a final 210-day period, which would not be suspended\nby the President\xe2\x80\x99s making another nomination. Id. \xc2\xa7 3346(b)(2)(B). If any of the\n210-day periods ends when the Senate is not in session, the second day on which\nthe Senate is next in session and is receiving nominations is deemed the last day of\nthe period. Id. \xc2\xa7 3348(c).\nM. EDWARD WHELAN III\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n215\n\n227-329 VOL_26_PROOF.pdf 225\n\n10/22/12 11:13 AM\n\n\x0c'


b'Constitutionality of Seizing the Passports of Individuals Found to\nbe Importing Controlled Substances Into the United States\nA C ustom s Service directive to seize as evidence o f a federal crim e the passports of individuals found\nto be im porting controlled substances into the U nited S tates would not implicate the Fourth o r\nFifth A m endm ents to the U nited States Constitution, nor give rise to any valid constitutional claim s\no f denial o f due process or deprivation o f freedom to travel.\n\nMarch 15, 1988\nM\n\nem orandum\n\nO\n\np in io n f o r t h e\n\nA ttorney G\n\neneral\n\nThis memorandum evaluates the legality of the proposal by the United States\nCustoms Service to seize the United States passports of individuals found to be\nin possession of illegal drugs upon entering the United States. In our view, the\nproposal involves nothing more than the lawful seizure of evidence of crime and\nraises no novel or substantial questions under the Fourth or Fifth Amendments.\nIndeed, according to the Customs Service, current practice is to seize passports\nin a large number of serious crimes. The current proposal would simply extend\nthat practice to all cases involving the importation of any quantity of illegal drugs.\nThere has been some confusion in the press accounts describing the Customs pro\xc2\xad\nposal and, therefore, we begin with a brief description of the plan.\nI. Background\nUnder the Customs Service directive, beginning March 15,1988, Customs Ser\xc2\xad\nvice officials are to seize an individual\xe2\x80\x99s U.S. passport \xe2\x80\x9cas criminal evidence\xe2\x80\x9d\nand all \xe2\x80\x9cother evidentiary material\xe2\x80\x9d whenever \xe2\x80\x9ca person is found to be in viola\xc2\xad\ntion of federal, state, or local criminal laws regarding the importation and/or pos\xc2\xad\nsession of controlled substances.\xe2\x80\x9d Memorandum to All Regional Commission\xc2\xad\ners, District Directors, Inspection and Control Stations, Regional and District\nCounsels, Special Agents in Charge, from Commissioner of Customs, Re: Seizure\nof Controlled Substance Violator Passports for Evidence at 1 (Mar. 8, 1988)\n(\xe2\x80\x9cCustoms Directive\xe2\x80\x9d). The individual will be given a custody receipt for retained\nor seized property such as the passport and other personal items being held as ev\xc2\xad\nidence. According to officials from the State Department, an individual whose\npassport is seized and held as evidence of importation of illegal drugs may ap\xc2\xad\nply for, and, at least absent a risk to national security, be granted, a new pass\xc2\xad\nport.1\n1 Meeting with Mary V. Mochary, Deputy Legal Advisor, United States Department of Slate (M ar 14,1988).\n\n59\n\n\x0cThe local Customs Duty Agent will then be notified of the violation, and make\na determination whether the violator should be arrested or released. In addition,\nthe Customs Duty Agent is directed to \xe2\x80\x9cattempt to obtain federal prosecution of\nthe violator\xe2\x80\x9d under 21 U.S.C. \xc2\xa7 844 (possession of a controlled substance) and\n21 U.S.C. \xc2\xa7 952 (importation of a controlled substance), or, if federal prosecu\xc2\xad\ntion is declined, to \xe2\x80\x9cattempt to obtain state or local prosecution for violations of\nany applicable state laws concerning controlled substances.\xe2\x80\x9d Customs Directive\nat 2. If federal, state, or local prosecution is accepted, the Customs Duty Agent\nis directed to initiate a chain of custody and transfer the passport and evidence to\nthe appropriate officials for use in prosecution. In addition, \xe2\x80\x9c[t]he chain of cus\xc2\xad\ntody must state that once the passport is no longer required as criminal evidence,\nth e . .. officer having possession must send it directly to the Department of State.\xe2\x80\x9d\nId. If federal, state, and local prosecution is declined, the Customs Service is to\nforward seized passports to the Department of State for disposition and notify the\nviolator of the address to which he may direct inquiries concerning his passport.\n\nII. Discussion\nAs described in the Customs Directive, the plan to seize the passports of those\nengaged in the importation of controlled substances into the United States ap\xc2\xad\npears to involve nothing more than the lawful seizure of evidence of a crime pur\xc2\xad\nsuant to a lawful search. It has long been established that \xe2\x80\x9croutine searches of\npersons and things may be made upon their entry into the country without first\nobtaining a search warrant and without establishing probable cause or any sus\xc2\xad\npicion at all in the individual case.\xe2\x80\x9d 1 Wayne R. LaFave & Jerold H. Israel, Crim\xc2\xad\ninal Procedure \xc2\xa7 3.9, at 326 (1984) (footnote omitted). According to the Supreme\nCourt, \xe2\x80\x9csearches made at the border, pursuant to the long-standing right of the\nsovereign to protect itself by stopping and examining persons and property cross\xc2\xad\ning into this country, are reasonable simply by virtue of the fact that they occur\nat the border.\xe2\x80\x9d United States v. Ramsey, 431 U.S. 606, 616 (1977).\nAssuming a lawful border search, customs officials are entitled to seize all ev\xc2\xad\nidence of a crime for use in subsequent prosecution. In Warden v. Hayden, 387\nU.S. 294 (1967), the Supreme Court abandoned any distinction between seizure\nof \xe2\x80\x98\xe2\x80\x9c mere evidence\xe2\x80\x99\xe2\x80\x9d and seizure of \xe2\x80\x9cfruits, instrumentalities or contraband\xe2\x80\x9d for\npurposes of the Fourth Amendment, and held that evidence could be seized so\nlong as there is \xe2\x80\x9ca nexus\xe2\x80\x94automatically provided in the case of fruits, instru\xc2\xad\nmentalities or contraband\xe2\x80\x94between the item to be seized and criminal behav\xc2\xad\nior.\xe2\x80\x9d Id. at 307.\nThe passport of an individual found to be in possession of a controlled sub\xc2\xad\nstance upon entering the United States is clearly subject to lawful seizure. Under\nfederal law, it is a felony \xe2\x80\x9cto import into the United States from any place out\xc2\xad\nside thereof, any controlled substance . . . or any narcotic drug.\xe2\x80\x9d 21 U.S.C.\n\xc2\xa7 952(a). As recently stated by the Fourth Circuit, \xe2\x80\x9c[a] critical element of the of\xc2\xad\nfense is that the defendant import the substance or cause it to be imported.\xe2\x80\x9d United\n\n60\n\n\x0cStates v. Samad, 754 F.2d 1091,1096(4thCir. 1984). Under federal law, the only\nmeans by which an American can lawfully enter or leave the country\xe2\x80\x94absent a\npresidentially granted exception\xe2\x80\x94 is with a passport. See 8 U.S.C. \xc2\xa7 1185(b).\nThus, even assuming that an individual\xe2\x80\x99s passport is not itself an instrumentality\nof the crime of importing drugs, it certainly constitutes evidence with a nexus to\nthe crime of importation of drugs. The passport is evidence of the individual\xe2\x80\x99s\nidentification, destination, and normally his place of origin. Since the offense of\nimportation requires the prosecution to prove that the defendant imported drugs\n(1) into the United States, and (2) from a place outside of the United States, there\nis certainly a nexus between the defendant\xe2\x80\x99s passport and criminal behavior. See\nWarden v. Hayden, 387 U.S. at 307.\nOf course, an individual whose passport has been seized as evidence in these\ncircumstances may be entitled to its return following conviction, acquittal, or a\ndecision not to prosecute.2 See Warden v. Hayden, 387 U.S. at 307-08. But the\nmere fact that properly seized evidence may be subject to return does not in any\nway affect the legality of the initial seizure. Id. at 307-10. Under the Customs\nDirective, when they are of no further evidentiary use, passports seized as evi\xc2\xad\ndence of importation of controlled substances are to be forwarded to the Depart\xc2\xad\nment of State with appropriate notification to the individual to whom the pass\xc2\xad\nport was issued. The State Department may hold the passport pending a request\nfor its return or determine immediately whether there are adequate grounds un\xc2\xad\nder applicable regulations for revoking the passport.3 There is no valid constitu\xc2\xad\ntional objection to this scheme. First, post-deprivation process is necessarily ad\xc2\xad\nequate when a passport is seized lawfully as evidence of crime. See Warden v.\nHayden, 387 U.S. at 307-08; cf. Haig v. Agee, 453 U.S. 280,309-10 (1981) (post\xc2\xad\nrevocation notice and hearing is constitutionally sufficient when passport revoked\non the ground that \xe2\x80\x9cthere is a substantial likelihood of \xe2\x80\x98serious damage\xe2\x80\x99 to na\xc2\xad\ntional security or foreign policy as a result of a passport holder\xe2\x80\x99s activities in for\xc2\xad\neign countries\xe2\x80\x9d).\n2 In addition, an individual may seek return o f his passport prior to trial pursuant to Federal Rule of Criminal\nProcedure 41 (e) That rule provides.\nA person aggrieved by an unlawful search and seizure may move the district court for the district in\nwhich the property was seized for the return o f the property on the ground that he is entitled to lawful\npossession o f the property which was illegally seized. The judge shall receive evidence on any issue\nof fact necessary to the decision o f the motion. If the motion is granted the property shall be restored\nand it shall not be admissible in evidence at any hearing or trial. If a motion for return of property is\nmade or comes on for hearing in the district o f trial after an indictment or information is filed, it shall\nbe treated also as a motion to suppress under Rule 12\nThus, the denial of a motion for the return o f seized property under Rule 41(e) is in effect a finding that the search\nand seizure were lawful, and therefore an individual whose passport has been seized would have no independent\nlegal objection to retention o f his passport for use as evidence.\n3 At a meeting on March 14,1988, Mary V. Mochary, Deputy Legal Advisor, United States Department of State,\ninformed this Office that the State Department does not intend to revoke passports it receives from the Customs\nService pursuant to the Customs Directive. According to Ms. Mochary, the State Department\xe2\x80\x99s practice has been\nto hold passports used as evidence until the persons to whom they were issued request their return or until the pass\xc2\xad\nports expire. Ms. Mochary stated that few, if any, individuals have requested return o f a seized passport, preferring\nsimply to apply for and be issued a new one.\n\n61\n\n\x0cFurther, there would be no unconstitutional infringement of the citizen\xe2\x80\x99s free\xc2\xad\ndom to travel abroad. In the first place, the freedom to travel apparently will not\nbe infringed at all since, as noted below, the State Department will issue a new\npassport even to a person whose passport has been seized as evidence in a drug\ntrafficking or other criminal prosecution. In light of the availability of a replace\xc2\xad\nment passport, there is no plausible argument that a temporary deprivation of\none\xe2\x80\x99s passport meaningfully restricts the liberty to travel abroad.\nIn any event, the Supreme Court has recognized repeatedly that this freedom\n\xe2\x80\x9cis subject to reasonable governmental regulation,\xe2\x80\x9d and that \xe2\x80\x9cthefreedom to travel\noutside the United States must be distinguished from the right to travel within\nthe United States.\xe2\x80\x9d Haig v. Agee, 453 U.S. at 306. For this proposition, the Agee\nCourt relied on Califano v. Aznavorian, 439 U.S. 170 (1978), in which the Court\nexplained:\nThe constitutional right of interstate travel is virtually unqual\xc2\xad\nified. By contrast the \xe2\x80\x98right\xe2\x80\x99 of international travel has been con\xc2\xad\nsidered to be no more than an aspect o f the \xe2\x80\x98liberty\xe2\x80\x99 protected by\nthe Due Process Clause of the Fifth Amendment. As such this\n\xe2\x80\x98right,\xe2\x80\x99 the Court has held, can be regulated within the bounds of\ndue process.\nId. at 176 (citations omitted) (quoting Califano v. Torres, 435 U.S. 1, 4 n.6\n(1978)). For the reasons already stated, the seizure and retention of a passport as\nevidence of criminal activity is consistent with due process. Whether the Secre\xc2\xad\ntary o f State\xe2\x80\x99s potential, future revocation o f the passport would be reasonable\nand comply with due process will depend on the facts and circumstances sur\xc2\xad\nrounding that action, see generally Haig v. Agee, and would not bear upon the\nlegality of the actions to be taken pursuant to the Customs Directive.4 Thus, even\nif replacement passports were not provided, there would be no constitutional im\xc2\xad\npediment to seizing passports in this manner.\n\nConclusion\nThe Customs Directive to seize as evidence the passports of individuals found\nto be importing controlled substances into the United States raises no novel or\nsubstantial constitutional questions. Supreme Court precedent clearly establishes\n\n4\nU nder the State D epartm ent\xe2\x80\x99s current regulations, a passport may be revoked if \xe2\x80\x9c [t]he Secretary determines\nthat the national\xe2\x80\x99s activities abroad are causing or are likely to cause serious damage to the national security or the\nforeign policy o f the United States \xe2\x80\x9d See 22 C.F.R. \xc2\xa7\xc2\xa7 51.71(a), 51.70(b)(4). Any action taken by the Secretary that\nadversely affects the ability o f a person to receive or use a passport is subject to the provisions of 22 C.F.R. \xc2\xa7\xc2\xa7 51.80\n- 51.89, which provide for notice and hearing.\nO f course, after a passport is no longer o f any evidentiary use but prior to any determination by the Secre\xc2\xad\ntary, an individual may seek return of a passport (as in the case o f all evidence) by initiating a \xe2\x80\x98\xe2\x80\x9c possessory action\nto reclaim that which is wrongfully withheld.\xe2\x80\x99\xe2\x80\x9d Warden v H ayden, 387 U.S. at 308 (quoting Land v Dollar, 330\nU.S. 7 3 1 ,7 3 8 (1947)).\n\n62\n\n\x0cthat the passport of an individual found to be importing drugs may be seized as\nthe instrumentality or evidence of a federal crime. Nor does the proposal give\nrise to a valid due process objection or an objection based on the freedom of in\xc2\xad\nternational travel.\nC\n\nharles\n\nJ. C o o per\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n63\n\n\x0c'


b'Investigative Authority of the General Accounting Office\nT he G eneral A ccounting Office lacks statutory authority to review the E xecutive\xe2\x80\x99s discharge o f its\nconstitutional foreign policy responsibilities.\nG A O is precluded by the Intelligence O versight Act from access to intelligence inform ation.\nT he m em orandum also reviews generally the executive privilege principles that apply in the contexts\no f intelligence, law enforcem ent, and deliberative process inform ation.\n\nAugust 16, 1988\nM\n\nem o ran d u m\n\nO p in io n\n\nN\n\na t io n a l\n\nfo r the\n\nE x e c u t iv e S e c r e t a r y\n\nS e c u r it y C o u n c i l\n\nIntroduction and Summary\nThis memorandum is in response to your request for the opinion of this Office\non whether, or to what extent, the Administration has a legal basis for declining\nto cooperate with the pending General Accounting Office (\xe2\x80\x9cGAO\xe2\x80\x9d) investigation\nconcerning U.S. foreign policy decisions with respect to Manuel Noriega. In its\nJune 23,1988 letter to the National Security Council, GAO described the nature\nand purpose of the investigation: In order to evaluate whether \xe2\x80\x9cinformation about\nillegal activities by high level officials of other nations may not be adequately\nconsidered in U.S. foreign policy decisions . . . , the General Accounting Office\nis undertaking an initial case study of how information about General Noriega\nwas developed by various government agencies, and what role such information\nplayed in policy decisions regarding Panama.\xe2\x80\x9d As stated in the National Security\nCouncil\xe2\x80\x99s response to GAO of July 13,1988, representatives of GAO have made\nit clear that GAO\xe2\x80\x99s \xe2\x80\x9cthree areas of interest [are] intelligence files, law enforce\xc2\xad\nment files, and the deliberative process of the Executive branch, including inter\xc2\xad\nnal communications and deliberations leading to Executive branch actions taken\npursuant to the President\xe2\x80\x99s constitutional authority.\xe2\x80\x9d\nSpecifically, you have asked this Office to advise you as to whether the GAO\ninvestigation is within GAO\xe2\x80\x99s statutory authority; whether there are statutory or\nconstitutional grounds for denying GA O \xe2\x80\x99s request to the extent it is directed\nspecifically at intelligence information, at law enforcement information, or at de\xc2\xad\nliberative process information; and whether there are other grounds for denying\nGAO\xe2\x80\x99s request in whole or in part. As explained below, we conclude that on the\npresent record the GAO investigation is beyond GAO\xe2\x80\x99s statutory investigative\n\n171\n\n\x0cauthority.1 Because of this conclusion it is unnecessary to address any constitu\xc2\xad\ntional basis for challenging GAO\xe2\x80\x99s authority to conduct the investigation. In ad\xc2\xad\ndition, we are unable to evaluate the strength of any constitutional objection to\nproviding particular information because specific information requests have not\nyet been made. As a matter of general guidance, however, we outline the consti\xc2\xad\ntutional principles which would be applied in evaluating whether particular in\xc2\xad\nformation can be withheld.\nI. Authority to Conduct the Investigation\nA. G AO \xe2\x80\x99s Investigative Authority\n\n1. Statutory Limitations\nG A O \xe2\x80\x99s investigative authority is set forth in subchapter II of chapter 7 of title\n31 o f the U.S. Code. Except for section 7 17(b), the various grants of authority in\nsubchapter II are limited to auditing the finances of government agencies and are\nthus inadequate bases for the GAO Noriega investigation, which clearly goes well\nbeyond a financial audit. See 31 U.S.C. \xc2\xa7\xc2\xa7 711-715. Accordingly, GAO must\nbase this investigation on its authority in section 717(b) to \xe2\x80\x9cevaluate the results\nof a program or activity the Government carries out under existing law.\xe2\x80\x9d 2 Op.\nO.L.C. 415,420 (1978) (emphasis added) (where a GAO investigation goes be\xc2\xad\nyond fiscal matters, GAO\xe2\x80\x99s authority must be based on section 204(a), the sub\xc2\xad\nstantially identical predecessor version of section 717(b)).\nWe believe as a matter of statutory construction that the phrase \xe2\x80\x9cprogram or\nactivity . . . under existing law \xe2\x80\x9d must refer only to activities carried out pursuant\nto statute, and not activities carried out pursuant to the Executive\xe2\x80\x99s discharge of\nits own constitutional responsibilities.2 The juxtaposition of \xe2\x80\x9cprogram or activ\xc2\xad\nity\xe2\x80\x9d with \xe2\x80\x9cexisting law\xe2\x80\x9d strongly suggests an intent to refer to statutory respon\xc2\xad\nsibilities. Moreover, the use of the qualifier \xe2\x80\x9cexisting\xe2\x80\x9d appears to suggest that the\nlaws at issue are statutes that m ay lapse rather than constitutional authorities of\nthe President, which are of greater permanence. Finally, the legislative history of\nsection 717(b) confirms that Congress\xe2\x80\x99 focus of concern was the oversight of its\nlegislative programs: \xe2\x80\x9cIt is intended that in performing [evaluations under sec\xc2\xad\ntion 7 17(b)], the Comptroller General shall review and analyze Government pro\xc2\xad\ngram results in a manner which will assist the Congress to determine whether\nthose programs and activities are achieving the objectives of the law.\xe2\x80\x9d H.R. Rep.\nNo. 1215,91st Cong., 2d Sess. 82 (1970). Nothing in the legislative history man\xc2\xad\n1 M oreover, in addition to G A O \xe2\x80\x99s lack o f statutory authority to pursue this investigation, we believe that the In\xc2\xad\ntelligence Oversight A ct for Fiscal Year 1981, Pub. L. No. 9 6-450, \xc2\xa7 407,94 Stat. 1975, 1981 (1980), extinguishes\nw hatever authority GAO might otherwise possess in gaining access to intelligence information\n2 The views we express here concerning the limitations on G A O \xe2\x80\x99s investigative authority under section 717(b)\nare not novel. In 1978, the O ffice opined that G A O \xe2\x80\x99s authonty under the similarly worded predecessor to 717(b)\ndid not extend to the discharge o f the President\'s constitutional, as opposed to statutory, responsibilities. 2 Op.\nO.L.C. 415, 420 (1978) (\xe2\x80\x9c [T]he appointment o f officers o f the United States by the President by and with the ad\xc2\xad\nvice o f the Senate does not constitute a G overnment program or activity carried out under existing law . . . . \xe2\x80\x9d).\n\n172\n\n\x0cifests any congressional intent to extend GAO\xe2\x80\x99s investigative authority beyond\nstatutory programs into the Executive\xe2\x80\x99s discharge of its constitutional responsi\xc2\xad\nbilities. See S. Rep. No. 924, 93d Cong., 2d Sess. 72 (1974); S. Rep. No. 202,\n91st Cong., 1st Sess. (1969); H.R. Rep. No. 1215, supra, at 18, 34, 81-84; 116\nCong. Rec. 24,597 (1970).\n2. GAO Has Not Justified its Investigation Under Section 717(b)\nWe conclude on the record before us that GAO has not established that it has\nauthority under section 717(b) to pursue this investigation. The subject of the in\xc2\xad\nvestigation according to GAO is foreign policymaking, a subject matter which is\ngenerally within the purview of the President\xe2\x80\x99s power under Article II of the Con\xc2\xad\nstitution. GAO has failed to assert any interest in evaluating the results of any\nspecific statutory program or activity that may relate to foreign policy.\nAs this Office has consistently observed,3 Section 1 of Article II confers on\nthe President plenary authority to represent the United States and to pursue its\ninterests outside the borders of the country, subject only to limits specifically set\nforth in the Constitution itself and to such statutory limitations as the Constitu\xc2\xad\ntion permits Congress to impose by exercising one of its enumerated powers. See\ngenerally United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).\nSpecifically, the President\xe2\x80\x99s constitutional authority includes the authority to ne\xc2\xad\ngotiate with foreign nations, to articulate the foreign policy of the United States,\nto carry out diplomatic and intelligence missions, and to protect the lives of Amer\xc2\xad\nicans abroad. Id.\nOf course, pursuant to its own substantial authority under the Commerce\nClause and its exclusive power of appropriation, Congress has enacted statutes\nthat relate to the foreign policy of the United States. For instance, Congress has\nappropriated funds for foreign assistance and enacted statutes regulating arms\nsales to foreign governments. If GAO were to express a specific interest in ma\xc2\xad\nterials relating to such statutes, there would be reasonable and legitimate ques\xc2\xad\ntions as to which materials were within the scope of G AO\xe2\x80\x99s section 717(b) au\xc2\xad\nthority, and which were not.\nThe request before us, however, does not present these close questions. The\nGAO letter of June 23,1988 makes it clear that foreign policymaking is the sub\xc2\xad\nject of the GAO investigation, and it provides no basis for concluding that GAO\nis interested in reviewing Executive foreign policymaking pursuant to statutory\nauthority. The GAO letter states that the GAO investigation is premised on a con\xc2\xad\ncern that \xe2\x80\x9cinformation about illegal activities by high level officials of other na\xc2\xad\ntions may not be adequately considered in U.S. foreign policy decisions\xe2\x80\x9d and that\nit is directed at learning \xe2\x80\x9cwhat role [information about General Noriega] played\nin policy decisions regarding Panama.\xe2\x80\x9d The GAO letter thus demonstrates an in\xc2\xad\n\n3\nSee, e g , Memorandum for Judith H. Bello, General Counsel, Office of the United States Trade Representa\xc2\xad\ntive, from Charles J. Cooper, Assistant Attorney General, Office o f Legal Counsel, Re The President\'s Authority\nto Terminate the International Express M ail Agreement With Argentina Without the Consent o f the Postal Service\n(June 2, 1988).\n\n173\n\n\x0cterest in our \xe2\x80\x9cdiplomatic\xe2\x80\x9d or \xe2\x80\x9cnational security\xe2\x80\x9d foreign relations with Panama\nand General Noriega, and provides no basis for concluding that it relates to ac\xc2\xad\ntivities undertaken by the Executive under any specific statute.\nWe therefore conclude based on the nature of the GAO request that the sub\xc2\xad\nject of the GAO investigation is the Executive\xe2\x80\x99s discharge of its constitutional\nforeign policy responsibilities, not its statutory responsibilities. The subject is\nthus not \xe2\x80\x9ca program or activity the Government carries our under existing law,\xe2\x80\x9d\nand it is beyond GAO\xe2\x80\x99s authority under 31 U.S.C. \xc2\xa7 717(b). Accordingly, unless\nthis request is tailored to inquire specifically about a program or activity carried\nout under existing statutory law, we believe there is no obligation to grant GAO\naccess to executive branch agencies for purposes of conducting this investiga\xc2\xad\ntion.\nB. Intelligence Oversight\n\nIn addition to the infirmity in GAO\xe2\x80\x99s statutory authority to pursue this inves\xc2\xad\ntigation, we believe that GAO is specifically precluded by statute from access to\nintelligence information. In establishing by law the oversight relationship be\xc2\xad\ntween the intelligence committees and the executive branch, Congress indicated\nthat such oversight would be the exclusive means for Congress to gain access to\nconfidential intelligence information in the possession of the executive branch.4\nThis intelligence oversight system has been codified at 50 U.S.C. \xc2\xa7 413. That\nsection sets forth requirements for the Director of Central Intelligence, the heads\nof all other federal agencies involved in intelligence activities, and the President\nto inform the Congress through the intelligence committees (and in some cir\xc2\xad\ncumstances the Speaker and minority leader of the House of Representatives and\nthe majority and minority leaders of the Senate) of intelligence activities.\nThe legislative history of section 413 makes it clear that both the legislative\nand executive branches believed they were establishing a comprehensive scheme\nfor congressional oversight of intelligence activities that would constitute the ex\xc2\xad\nclusive means of congressional oversight. As President Carter stated when he\nsigned the section into law, it\nestablishes, for the first time in statute, a comprehensive system\nfor congressional oversight of intelligence activities The over\xc2\xad\nsight legislation that was passed ... codifies the current practice\n4 As a general matter, intelligence gathering is often viewed as a form of diplomatic activity that is within the\nPresident\xe2\x80\x99s Article n powers. As Professor Louis Henkin has noted, \xe2\x80\x9c[t]he gathering of information is a principal\npurpose of sending ambassadors and maintaining diplomatic relations, an exclusive Presidential power. It is only\na small extension to conclude that gathering information by any means is part of the President\xe2\x80\x99s \xe2\x80\x98eyes and ears\xe2\x80\x99\nfunction. There is, therefore, a strong case for presidential authonty to obtain intelligence not only through our em\xc2\xad\nbassies but also through our agents representing the Executive . . . . \xe2\x80\x9d Letter from Louis Henkin to Representative\nLouis Stokes, March 31, 1987, reprinted in HM. 1013, H.R. 1371, and Other Proposals Which Address the Issue\no f Affording Prior Notice of Covert Actions to Congress: Hearings Before the Subcomm on Legislation o f the House\nPermanent Select Comm, on Intelligence, 100th Cong., 1st Sess. 221 (1987).\n\n174\n\n\x0cand relationship that has developed between this administration\nand the Senate and House intelligence committees over the past\n3 years.5\nSenator Huddleston, sponsor of the floor amendment containing the version\nof section 413 that was enacted into law, emphasized upon the amendment\xe2\x80\x99s in\xc2\xad\ntroduction the comprehensive and exclusive nature of the scheme being estab\xc2\xad\nlished: \xe2\x80\x9cthis amendment is identical to Senate bill 2284 which the Senate passed\nby a vote of 89 to 1 on June 3 of this year. It is a bill that establishes the con\xc2\xad\ngressional oversight procedures dealing with our intelligence agencies.\xe2\x80\x9d6 Sena\xc2\xad\ntor Huddleston also agreed, in a floor colloquy with Senator Javits on S. 2284,\nwith the following statement by Senator Javits:\n1 agree thoroughly with the need for simplifying [the practice of\nthe oversight committees]. There are some seven committees here\nthat could have had this wrestling match with the executive . . . .\nI am satisfied ... that the method we now have chosen ... repre\xc2\xad\nsents a fair, effective, and objective way in which to accomplish\nthe results of simplifying the intelligence relations between the\nPresident and Congress ... and limiting further the opportunities\nfor misadventure, premature disclosure, and so forth . . . . What\nwe are doing is simply legislating... a new arrangement or modus\nvivendi for the handling of information and consultations between\nCongress and the intelligence agencies ... ?\nThe Senate report on S. 2284 also confirms the understanding that congres\xc2\xad\nsional oversight with respect to intelligence matters was to be limited to the in\xc2\xad\ntelligence committees. In the \xe2\x80\x9cgeneral statement\xe2\x80\x9d that preceded the section by\nsection analysis, the report noted:\nOut of necessity, intelligence activities are conducted primar\xc2\xad\nily in secret. Because of that necessary secrecy, they are not sub\xc2\xad\nject to public scrutiny and debate as is the case for most foreign\npolicy and defense issues. Therefore, the Congress, through its in\xc2\xad\ntelligence oversight committees, has especially important duties\nin overseeing these vital activities by the intelligence agencies of\nthe United States. [50 U.S.C. \xc2\xa7 413] is intended to authorize the\n\nprocess by which information concerning intelligence activities\n\n3 16 Weekly Comp. Pres. Doc. 2231 (Oct. 14, 1980).\n6 126 Cong. Rec. 17,692 (1980).\n7 126 Cong. Rec. 17,692-93 (1980) Senator Moyruhan agreed with the position of Senators Huddleston and\nJavits that a major purpose of the Intelligence Oversight Act was to reduce the number of congressional commit\xc2\xad\ntees that sought intelligence information: \xe2\x80\x9cthere is a rule of intelligence, which the Senator [Javits] knows well from\nhis wartime experience, which is that you protect sensitive information by compartmentation. The more important\nthat matter is the fewer persons you want to know about i t . . . . \xe2\x80\x9d Id. at 17,694.\n\n175\n\n\x0cof the United States is to be shared by the two branches in order\n\nto enable them to fulfill their respective duties and obligations to\ngovern intelligence activities within the constitutional framework.\nThe Executive branch and the intelligence oversight committees\nhave developed over the last four years a practical relationship\nbased on comity and mutual understanding, without confronta\xc2\xad\ntion. The purpose of [section 413] is to carry this working rela\xc2\xad\ntionship forward into statute.8\nBased on the evidence of intent on the part of both the legislative and execu\xc2\xad\ntive branches that oversight by the intelligence committees would be the exclu\xc2\xad\nsive method of congressional oversight concerning intelligence information, we\nconclude that 50 U.S.C. \xc2\xa7 413 stands as statutory authority for the Administra\xc2\xad\ntion to decline to provide GAO with access to any intelligence information sought\nin the Noriega investigation.\nII. Executive Privilege\n\nShould GAO, in response to an appropriate direction from Congress, subse\xc2\xad\nquently undertake an investigation properly related to its statutory authority, it\nwould then be necessary to review established principles concerning the main\xc2\xad\ntenance of confidentiality with respect to certain executive branch information.\nCongressional investigations normally do not pose this problem to the degree\nsuggested by the pending GAO investigation because they are properly tailored\nto address non- confidential subjects. Disturbingly, and in contrast, the type of\ninformation in which GAO expressed interest in its letter of June 23, 1988 sug\xc2\xad\ngests a desire to review confidential material generally not available outside the\nexecutive branch, such as intelligence, law enforcement, and deliberative process\ninformation.9\nSince GAO has not yet made any specific requests, we cannot analyze the case\nfor withholding any particular document or information. What we do below is\nsummarize briefly the general executive privilege principles that apply in the in\xc2\xad\ndividual contexts of intelligence, law enforcement, and deliberative process in\xc2\xad\nformation.\nA. Protection of Intelligence Information\n\nIn the hierarchy of executive privilege, the \xe2\x80\x9cprotection of national security\xe2\x80\x9d\nconstitutes the strongest interest that can be asserted by the President and one to\n8 S Rep. No. 730, 96th Cong., 2d Sess. 5 (1980) (emphasis added) More specifically, the Senate report stated\nthat \xe2\x80\x9c[t]his amendment repeals the congressional reporting requirement of the Hughes-Ryan Amendment of 1974\n. . . The effect is to limit reporting to the two intelligence oversight committees, as compared with the seven com\xc2\xad\nmittees that now receive such reports . . . \xe2\x80\x9d Id at 5.\n9 This subject is usually discussed in terms of \xe2\x80\x9cexecutive privilege,\xe2\x80\x9d and we will use that convention here. The\nquestion, however, is not strictly speaking just one of executive privilege. The pnvdege itself need not be claimed\nformally vis-a-vis Congress except m response to a lawful subpoena\n\n176\n\n\x0cwhich the courts have traditionally shown the utmost deference. In United States\nv. Nixon, for instance, the Court contrasted President Nixon\xe2\x80\x99s claim of executive\nprivilege based on the Executive\xe2\x80\x99s general interest in confidentiality with a claim\nbased on the President\xe2\x80\x99s national security responsibilities:\n[President Nixon] does not place his claim of privilege on the\nground they are military or diplomatic secrets. As to these areas\nof Art. II duties the Courts have traditionally shown the utmost\ndeference to Presidential responsibilities.\n418 U.S. 683,710(1974) (emphasis added).\nB. Protection of Law Enforcement Information\n\nWith respect to open law enforcement files, it has been the policy of the ex\xc2\xad\necutive branch throughout our Nation\xe2\x80\x99s history to protect these files from any\nbreach of confidentiality, except in extraordinary circumstances. Attorney Gen\xc2\xad\neral Robert H. Jackson well articulated the basic position:\nIt is the position of this Department, restated now with the ap\xc2\xad\nproval of and at the direction of the President, that all investiga\xc2\xad\ntive reports are confidential documents of the executive depart\xc2\xad\nment of the Government, to aid in the duty laid upon the President\nby the Constitution to \xe2\x80\x9ctake care that the Laws be faithfully exe\xc2\xad\ncuted,\xe2\x80\x9d and that congressional or public access to them would not\nbe in the public interest.\nDisclosure of the reports could not do otherwise than seriously\nprejudice law enforcement. Counsel for a defendant or prospec\xc2\xad\ntive defendant, could have no greater help than to know how much\nor how little information that Government has, and what witnesses\nor sources of information it can rely upon. This is exactly what\nthese reports are intended to contain.\n40 Op. Att\xe2\x80\x99y Gen. 45, 46 (1941).\nThere are, however, circumstances in which the Department of Justice may\ndecide to disclose to Congress information about prosecutorial decisions. This is\nparticularly true where an investigation has been closed without further prose\xc2\xad\ncution. In such a situation concerns about real or perceived congressional inter\xc2\xad\nference with an investigation, and about the effects of undue pretrial publicity on\na jury, would disappear. Still, extreme caution must be applied whenever the dis\xc2\xad\nclosure of such records is contemplated. Much of the information in a closed\ncriminal enforcement file such as unpublished details of allegations against par\xc2\xad\n177\n\n\x0cticular individuals and details that would reveal confidential sources and inves\xc2\xad\ntigative techniques and methods would continue to merit protection.\nC. Protection of Deliberative Process Information\n\nThe Constitution gives the President the power to protect the confidentiality\nof deliberations within the executive branch. See Nixon v. Administrator of Gen.\nServs., 433 U.S. 425, 446 455 (1977); United States v. Nixon, 418 U.S. at 708.\nThis is independent of the President\xe2\x80\x99s power over foreign affairs or national se\xc2\xad\ncurity, or law enforcement; it is rooted instead in \xe2\x80\x9cthe necessity for protection of\nthe public interest in candid, objective, and even blunt or harsh opinions in Pres\xc2\xad\nidential decisionmaking.\xe2\x80\x9d Id. at 708. The Supreme Court has held that, for this\nreason, communications among the President and his advisers enjoy \xe2\x80\x9ca pre\xc2\xad\nsumptive privilege\xe2\x80\x9d against disclosure in court. Id.\nThe reasons for this privilege, the Court said in United States v. Nixon, are\n\xe2\x80\x9cplain.\xe2\x80\x9d \xe2\x80\x9cHuman experience teaches that those who expect public dissemina\xc2\xad\ntion of their remarks may well temper candor with a concern for appearances\nand for their own interests to the detriment of the decisionmaking process.\xe2\x80\x9d Id.\nat 705. Often, an advisor\xe2\x80\x99s remarks can be fully understood only in the context\nof a particular debate and of the positions others have taken. Advisors change\ntheir views, or make mistakes which others correct; this is indeed the purpose\nof internal debate. The result is that advisors are likely to be inhibited if they\nmust anticipate that their remarks will be disclosed to others, not party to the\ndebate, who may misunderstand the significance of a particular statement or\ndiscussion taken out of context. Some advisors may hesitate out of self interest\nto make remarks that might later be used against their colleagues or superiors.\nAs the Supreme Court has stated, \xe2\x80\x9c[a] President and those who assist him must\nbe free to explore alternatives in the process of shaping policies and making de\xc2\xad\ncisions and to do so in a way many would be unwilling to express except pri\xc2\xad\nvately.\xe2\x80\x9d Id. at 708.\nThese reasons for the constitutional privilege have at least as much force when\nit is Congress, instead of a court, that is seeking information.10The United States\nCourt of Appeals for the District of Columbia Circuit has explicitly held that\nthe privilege protects presidential communications against congressional in\xc2\xad\nquiries."\n10 The Supreme Court has assumed that the constitutional privilege protects executive branch deliberations\nagainst Congress to some degree. See United States v Nixon, 418 U S. at 712 n.19. Moreover, in Nixon v. Admin\xc2\xad\nistrator o f Gen. Servs., 433 U.S. 425 (1977), the Court held that the constitutional privilege protects executive\nbranch deliberations from disclosure to members of the same branch in a later administration; the Court rejected\nthe specific claim of privilege in that case not because the privilege was inapplicable but because the intrusion was\nlimited and the interests justifying the intrusion were strong and nearly unique. See id. at 446-55.\n11 During the Watergate investigation the court of appeals rejected a Senate committee\xe2\x80\x99s efforts to obtain tape\nrecordings of conversations in President Nixon\xe2\x80\x99s offices The court held that the tapes were constitutionally privi\xc2\xad\nleged and that the committee had not made a strong enough showing to overcome the privilege. Senate Select Comm,\non Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C Cir 1974) (en banc). The court held that the com\xc2\xad\nmittee was not entitled to the recordings unless it showed that \xe2\x80\x9cthe subpoenaed evidence is demonstrably critical\nto the responsible fulfillment of the Committee\xe2\x80\x99s functions \xe2\x80\x9d Id at 731 (emphasis added).\n\n178\n\n\x0cD. Accommodation with Congress\n\n1. Governing Principles\nBecause a claim of executive privilege is not absolute, the executive branch\nhas a duty to seek to accommodate requests that are within Congress\xe2\x80\x99 legitimate\noversight powers. See United States v. AT&T, 567 F.2d 121, 127 130 (D.C. Cir.\n1977) (suggesting that, even when a claim of executive privilege rests on national\nsecurity grounds, the Executive does not enjoy clear and absolute discretion to\ndeny legitimate congressional requests for information, but that each of the two\nbranches must attempt to balance and accommodate the legitimate needs of the\nother).12 This duty of accommodation means that the Executive should attempt\nto satisfy the requests of Congress as completely as it can without making harm\xc2\xad\nful disclosures. See Memorandum for the Attorney General from John M. Har\xc2\xad\nmon, Assistant Attorney General, Office of Legal Counsel, Re: The Constitu\xc2\xad\n\ntional Privilege for Executive Branch Deliberations: The Dispute with a House\nSubcommittee over Documents Concerning the Gasoline Conservation Fee (Jan.\n\n13, 1981). In this spirit, the Executive has occasionally offered Congress sum\xc2\xad\nmaries of documents prepared in such a manner as not to disclose, for example,\ndeliberative aspects that might chill executive branch decisionmaking. See id. at\n22-23.\nThe nature of the accommodation required in responding to a congressional\nrequest for information depends on the balance of interests between the Execu\xc2\xad\ntive and Congress. In order for its interests to be given weight, Congress must ar\xc2\xad\nticulate its need for the particular materials; it must \xe2\x80\x9cpoint[] to . .. specific leg\xc2\xad\nislative decisions that cannot responsibly be made without access to materials\nuniquely contained\xe2\x80\x9d in the presumptively privileged documents (or testimony) it\nhas requested, and show that the material \xe2\x80\x9cis demonstrably critical to the re\xc2\xad\nsponsible fulfillment of the Committee\xe2\x80\x99s functions.\xe2\x80\x9d Senate Select Comm, on\nPresidential Campaign Activities v. Nixon, 498 F.2d at 731, 733.13\n12 It should be emphasized, however, that in United States v. AT&T the information Congress sought related to\nwiretaps on American citizens placing telephone calls from the United States. Although these wiretaps were justi\xc2\xad\nfied on national security grounds and the President, in turn, could assert national security as a basis for withhold\xc2\xad\ning the information, Congress clearly had a substantial interest in this subject matter, because the wiretaps impli\xc2\xad\ncated the individual rights of American citizens. Accordingly, we believe that a court may view the relative weights\nof executive and legislative interests differently when the information sought relates directly to the conduct of for\xc2\xad\neign relations rather than to the rights of American citizens.\n13 In Senate Select Committee, for example, the court held that the committee had not made a sufficient show\xc2\xad\ning of need for copies of the presidential tape recordings, given that the President had already released transcripts\nof the recordings. The committee argued that it needed the tape recordings \xe2\x80\x9cin order to verify the accuracy o f\xe2\x80\x99 the\ntranscripts, to supply the deleted portions, and to gain an understanding that could be acquired only by hearing the\ninflection and tone of voice of the speakers. But the court answered that in order to legislate a committee of Con\xc2\xad\ngress seldom needs a \xe2\x80\x9cprecise reconstruction of past events.\xe2\x80\x9d 498 F.2d at 732. \xe2\x80\x9cThe Committee has . . . shown no\nmore than that the materials deleted from the transcripts may possibly have some arguable relevance to the subjects\nit has investigated and to the areas in which it may propose legislation. It points to no specific legislative decisions\nthat cannot responsibly be made without access to materials uniquely contained in the tapes or without resolution\nof the ambiguities that the transcripts may contain.\xe2\x80\x9d Id. at 733. For this reason, the court stated, \xe2\x80\x9cthe need demon\xc2\xad\nstrated by the Select Committee .. is too attenuated and too tangential to its functions\xe2\x80\x9d to override the President\xe2\x80\x99s\nconstitutional privilege Id\n\n179\n\n\x0c2. Procedural Issues\nOnly rarely do congressional requests for information result in a subpoena of\nan executive branch official or in other congressional action. In most cases the\ninformal process of negotiation and accommodation recognized by the courts,\nand mandated for this Administration by President Reagan,14 is sufficient to re\xc2\xad\nsolve any dispute. On occasion, however, the process breaks down, and a sub\xc2\xad\npoena is issued by a congressional committee or subcommittee.15 At that point,\nit would be necessary to consider asking the President to assert executive privi\xc2\xad\nlege. Under the terms of the President\xe2\x80\x99s Memorandum, executive privilege can\xc2\xad\nnot be asserted vis-a-vis Congress without specific authorization by the Presi\xc2\xad\ndent, based on recommendations made to him by the concerned department head,\nthe Attorney General, and the Counsel to the President.\nConclusion\nWe believe that there are statutory grounds which preclude GAO\xe2\x80\x99s present re\xc2\xad\nquest for access to executive branch agencies for the purposes of conducting the\ninvestigation described in its letter of June 23, 1988. Should GAO\xe2\x80\x99s request be\nreformulated in a manner which properly relates it to a congressional interest\nwithin the terms of 31 U.S.C. \xc2\xa7 717(b) and which comports with the statutory re\xc2\xad\nstrictions on access to intelligence information found in 50 U.S.C. \xc2\xa7 413, it will\nbe appropriate at that time to consider the application of additional lawful au\xc2\xad\nthority to withhold particular national security, intelligence, law enforcement, or\ndeliberative process information. This Office is available for consultation with\nrespect to requests for particular documents or information.\nD o u g l a s W . K m ie c\n\nActing Assistant Attorney General\nOffice of Legal Counsel\n14 President Reagan\xe2\x80\x99s November 4,1982 Memorandum for the Heads of Executive Departments and Agencies\non \xe2\x80\x9cProcedures Governing Responses to Congressional Requests for Information\xe2\x80\x9d states:\nThe policy of this Administration is to comply with Congressional requests for information to the\nfullest extent consistent with the constitutional and statutory obligations of the Executive Branch .\n[E]xecutive pnvilege will be asserted only in the most compelling circumstances, and only after care\xc2\xad\nful review demonstrates that assertion of the privilege is necessary Historically, good faith negotia\xc2\xad\ntions between Congress and the Executive Branch have minimized the need for invoking executive\nprivilege, and this tradition of accommodation should continue as the primary means of resolving con\xc2\xad\nflicts between the Branches.\n15 In the current context, such a subpoena could only be issued after GAO had reported to its congressional re\xc2\xad\nquester that it was unable to obtain the information from the executive branch. Before requesting that a congres\xc2\xad\nsional committee issue a subpoena, GAO might attempt to enforce its request for information pursuant to the judi\xc2\xad\ncial enforcement mechanism authorized under 3 1 U S C \xc2\xa7716. Such a course of action could be successfully resisted\nby the executive branch without a claim of executive pnvilege, however, because judicial enforcement is precluded\nwhenever the Director of the Office of Management and Budget or the President certify that the information could\nbe withheld under exemptions (b)(5) (information withholdable in litigation) or (b)(7) (law enforcement informa\xc2\xad\ntion) of the Freedom of Information Act (5 U.S.C. \xc2\xa7 552(b)(5), (b)(7)) and \xe2\x80\x98\xe2\x80\x98disclosure reasonably could be expected\nto impair substantially the operations of the Government." 31 U S C \xc2\xa7 716(d)(1)(C). Upon such a certification,\nGAO would presumably refer enforcement to the congressional committee.\n\n180\n\n\x0c'


b"Constitutionality of Amended Version of the Indian Land\nConsolidation Act\nA s am ended, the Indian L and Consolidation Act should survive a constitutional challenge under the\nT akings C lause o f the Fifth A m endm ent because it does not com pletely abolish both descent and\ndevise o f Indian trust lands.\nC onsistent w ith the Due Process Clause, the am ended Act m ay be applied only to those allottees given\na \xe2\x80\x9c reasonable opportunity\xe2\x80\x9d to arrange their affairs to avoid escheat.\n\nMarch 4, 1988\nM em orand um O\n\np in io n f o r t h e\n\nD epa rtm ent\n\no f the\n\nS o l ic it o r\n\nI n t e r io r\n\nYou have requested the opinion of this Office on the constitutionality of 25\nU.S.C. \xc2\xa7 2206, the \xe2\x80\x9cescheat\xe2\x80\x9d provision of the Indian Land Consolidation Act of\n1983, Pub. L. No. 97^459, \xc2\xa7 207,96 Stat. 2515,2519, as amended by Pub. L. No.\n98-608, \xc2\xa7 1(4), 98 Stat. 3171,3172 (1984). Amended section 2206 prohibits in\xc2\xad\ntestate descent of certain fractional interests in allotment lands and limits testa\xc2\xad\nmentary devise of those interests to persons who already own an interest in the same\nland. Section 2206 further provides that the fractional interests of owners of allot\xc2\xad\nted lands who died intestate or who attempted to devise their interest to persons\nwho did not already hold an interest in the land escheat to the tribe that has juris\xc2\xad\ndiction over the land. Although the issue is not free from doubt, we believe that the\nrestrictions that section 2206 imposes on the possibility of descent and devise will\nwithstand a challenge under the Takings Clause of the Fifth Amendment. We also\nconclude, however, that due process requires that the escheat provisions of section\n2206 be applied only against landowners who had a reasonable opportunity to\narrange their affairs to avoid forfeiture of their interests.\nBackground\nCurrent section 2206 is an amended version of section 207 of the Indian Land\nConsolidation Act of 1983, Pub. L. No. 97-459, 96 Stat. at 2519. As originally\nenacted, section 207 provided that:\nNo undivided fractional interest in any tract of trust or restricted\nland within a tribe\xe2\x80\x99s reservation or otherwise subjected to a tribe\xe2\x80\x99s\njurisdiction shall [descend] by intestacy or devise but shall escheat\nto that tribe if such interest represents 2 per centum or less of the\n41\n\n\x0ctotal acreage in such tract and has earned to its owner less than\n$100 in the preceding year before it is due to escheat.\nIn Hodel v. Irving, 481 U.S. 704 (1987), the Supreme Court invalidated original\nsection 207. The majority of the Court, in an opinion by Justice O \xe2\x80\x99Connor, held\nthat the complete abrogation of the right to dispose of property at death by descent\nor devise constituted an uncompensated taking in violation of the Just Compensa\xc2\xad\ntion Clause of the Fifth Amendment. Justice Stevens, writing for himself and Jus\xc2\xad\ntice White, agreed that section 207 was unconstitutional, but on the ground that the\nstatute effected a denial of property without due process of law because it did not\nafford holders of fractional interests \xe2\x80\x9ca reasonable opportunity to make inter vivos\ndispositions that will avoid the consequences\xe2\x80\x9d of the law. Id. at 726.\nCongress amended section 207 to make three changes in the statute.1The first\nconcerns the definition of fractional interests covered by the law. Where old sec\xc2\xad\ntion 207 applied to fractional interests of 2% or less of a tract that earned $100\nor less in the year prior to escheat (i.e., the year prior to the death of the allottee),\nthe new version applies to fractional interests of 2% or less that are \xe2\x80\x9cincapable\nof earning $100 in any one of the five years from the date of decendent\xe2\x80\x99s death.\xe2\x80\x9d\n25 U.S.C. \xc2\xa7 2206(a). The fact that the fractional interest earned \xe2\x80\x9cless than $100\nin any one of the five years before the decedent\xe2\x80\x99s death . . . [constitutes] a rebut\xc2\xad\ntable presumption that such interest is incapable of earning $100 in any one of\nthe five years following the death of the decedent.\xe2\x80\x9d Id. This change was made to\nprevent the escheat of valuable land that had, because of temporary market con\xc2\xad\nditions, failed to earn $100 in the year preceding the allottee\xe2\x80\x99s death.\nThe second change made by the 1984 amendments was the elimination of the\ntotal ban on dispositions of covered interests by testamentary devise. The statute\nnow permits disposition by devise of a covered interest \xe2\x80\x9cto any other owner of\nan undivided fractional interest in such parcel or tract.\xe2\x80\x9d 25 U.S.C. \xc2\xa7 2206(b). Fi\xc2\xad\nnally, the statute provides that its escheat provisions may be superseded by tribal\nlaw, subject to the approval of the Secretary of the Interior. The Secretary may\nnot, however, approve any alternative tribal scheme \xe2\x80\x9cthat fails to accomplish the\npurpose of preventing further descent or fractionation of such escheatable inter\xc2\xad\nests.\xe2\x80\x9d 25 U.S.C. \xc2\xa7 2206(c).\nThe critical difference between the current statute and its predecessor is that\nthe former does permit some testamentary disposition of fractional interests.2 The\n1 The amendment occurred after the escheat o f the interests involved in Hodel v Irving, but before appellate re\xc2\xad\nview o f the resulting lawsuit The Eighth Circuit declared that both the original and amended versions of the statute\nwere unconstitutional Irving v Clark, 758 F.2d 1260, 1261 n .l, 1269 (8th Cir 1985). The Supreme Court dis\xc2\xad\nmissed the latter \xe2\x80\x9cdeclaration\xe2\x80\x9d as \xe2\x80\x9cat best, dicta,\xe2\x80\x9d and explicitly declined to rule on the constitutionality o f the\namended statute. Hodel v. Irving, 481 (J S. at 710 n .l.\n2 W e believe that only the second change, the relaxation o f the ban on descent or devise of fractional interests,\nis significant for purposes o f constitutional analysis. The narrowing of the definition of interests subject to escheat\nunder the act has no bearing on the constitutionality of the escheat of interests that are covered. Similarly, the in\xc2\xad\nvitation to enact alternative procedures under superseding tribal law gives no greater legitimacy to the statutorily\nprescribed procedures applicable if the invitation is refused, particularly since no individual allottee has the au\xc2\xad\nthority to require the tn b e to accept the invitation.\n\n42\n\n\x0callottee\xe2\x80\x99s right to transfer property at death is therefore not wholly destroyed. The\namended statute does not, however, provide any grace period for allottees to make\ninter vivos dispositions to avoid escheat of their interests. Accordingly, two con\xc2\xad\nstitutional issues are presented by the amended statute; first, whether the limited\nright to transfer that remains is sufficient to render the statute a permissible reg\xc2\xad\nulation rather than an impermissible taking, and second, whether the absence of\na grace period makes the escheat of a covered interest a deprivation of property\nwithout due process of law.\nAnalysis\nThe Court in Hodel v. Irving condemned original section 207 because it com \xc2\xad\npletely abolished \xe2\x80\x9cboth descent and devise of these property interests even when\nthe passing of the property to the heir might result in consolidation of property.\xe2\x80\x9d\n481 U.S. at 718. Although recognizing Congress\xe2\x80\x99 \xe2\x80\x9cbroad authority to regulate\nthe descent and devise of Indian trust lands,\xe2\x80\x9d id. at 712, and even though con\xc2\xad\nceding the legitimacy of the government\xe2\x80\x99s purpose in seeking consolidation of\nthese small interests, id., the Court held that the \xe2\x80\x9ctotal abrogation\xe2\x80\x9d of any possi\xc2\xad\nbility of descent or devise of covered interests constituted an unlawful taking. Id.\nat 717.\nThe Court\xe2\x80\x99s opinion, however, includes important dicta suggesting that the\nUnited States retains broad power to restrict descent and devise of such Indian\nlands in a manner not dissimilar to the restriction at issue here. The opinion ac\xc2\xad\nknowledges the \xe2\x80\x9clong line of cases recognizing the States\xe2\x80\x99, and where appropri\xc2\xad\nate, the United States\xe2\x80\x99, broad authority to adjust the rules governing the descent\nand devise of property without implicating the guarantees of the Just Compen\xc2\xad\nsation Clause.\xe2\x80\x9d Id. It then explicitly states that some limitations on an allottee\xe2\x80\x99s\nability to transfer his fractional interest at death would be constitutional. \xe2\x80\x9cSurely\nit is permissible for the United States to prevent the owners o f such interests from\nfurther subdividing them among future heirs on pain o f escheat.\xe2\x80\x9d Id. at 718 (em\xc2\xad\nphasis added). What the Court could not countenance, what made \xe2\x80\x9c[t]he differ\xc2\xad\nence in this case,\xe2\x80\x9d was \xe2\x80\x9cthe fact that both descent and devise are completely abol\xc2\xad\nished.\xe2\x80\x9d Id. at 717.\nAmended section 2206 does not suffer from this critical defect. It does elimi\xc2\xad\nnate descent of covered interests by intestate succession, and it restricts devise\nof such interests to other holders of fractional interests in the same tract. This pro\xc2\xad\nvision obviously limits an allottee\xe2\x80\x99s ability to choose his devisee, since only de\xc2\xad\nvises to other holders of interests in the property are permitted. But the Court has\nalready indicated that limiting the allottee\xe2\x80\x99s choice by requiring the transfer of\nhis entire interest to a single devisee, as opposed to subdividing the interest among\nseveral devisees, would \xe2\x80\x9c[s]urely . . . [be] permissible.\xe2\x80\x9d Id. at 718. Moreover, the\nCourt\xe2\x80\x99s opinion recognized that \xe2\x80\x9c[t]he Government has considerable latitude in\nregulating property rights in ways that may adversely affect the owners,\xe2\x80\x9d id. at\n713, and cited with approval the case of Keystone Bituminous Coal Ass'n v.\nDeBenedictis, 480 U.S. 470 (1987), in which the Court reaffirmed the principle\n43\n\n\x0cthat \xe2\x80\x98\xe2\x80\x9c [w]here an owner possesses a full \xe2\x80\x98bundle\xe2\x80\x99 of property rights, the destruc\xc2\xad\ntion o f one \xe2\x80\x98strand\xe2\x80\x99 of the bundle is not a taking.\xe2\x80\x9d \xe2\x80\x99 Id. at 497 (quoting Andrus v.\nAllard, 444 U.S. 51, 65-66 (1979)).\nAmended section 207 admittedly would preclude, absent some inter vivos\ntransaction, transfers by devise from one generation to the next. It is not uncom\xc2\xad\nmon, however, for the law to limit a testator\xe2\x80\x99s ability to transfer property to the\nnext generation. The rule against perpetuities and the statutes providing for a\nforced share for a surviving spouse are obvious examples of legal rules that re\xc2\xad\nstrict a testator\xe2\x80\x99s ability to transfer property to his descendants. The spouse\xe2\x80\x99s elec\xc2\xad\ntive share statutes typically require that one-third to one-half of the estate be left\nto the surviving spouse.3 By contrast, the interests at stake here, which range in\nsize from modest to infinitesimal, will typically constitute a much smaller por\xc2\xad\ntion of an allottee\xe2\x80\x99s estate. We believe, therefore, that the escheat provisions of\nthe amended statute would not be unconstitutional under the majority\xe2\x80\x99s takings\nanalysis in Hodel.\nWe do not have the same confidence with respect to the due process issue. As\nnoted earlier, Justice Stevens found original section 207 unconstitutional because\nit did not allow allottees whose interests would be subject to escheat sufficient\nopportunity to make inter vivos arrangements to avoid the effects of the statute.\nThe plaintiffs\xe2\x80\x99 decedents in the three cases decided by Hodel died between two\nand five months after the effective date of the Indian Land Consolidation Act.\nJustice Stevens concluded that the statute unconstitutionally deprived plaintiffs\xe2\x80\x99\ndecedents of their property without due process of law because they were not af\xc2\xad\nforded \xe2\x80\x9ca reasonable grace period . . . to put their affairs in order.\xe2\x80\x9d 481 U.S. at\n733.\nJustice Stevens\xe2\x80\x99 concurrence is particularly important because he wrote the\nmajority opinion in Texaco, Inc. v. Short, 454 U.S. 516 (1982), the leading\nSupreme Court case on due process limitations on forfeiture statutes. Texaco in\xc2\xad\nvolved the constitutionality of an Indiana statute that provided that mineral rights\nthat were unused for a period o f twenty years would be extinguished and revert\nto the owner o f the surface estate, unless the owner of the rights filed a statement\nof claim prior to the end of the twenty year period. The statute contained a twoyear grace period in which owners of interests subject to forfeiture at the time the\nstatute took effect could file a statement of claim and retain their rights.\nThe statute\xe2\x80\x99s constitutionality was challenged by owners of mineral rights that\nwere unused for twenty years or more at the time the statute took effect and who\nfailed to file statements of claim within the two-year grace period. The owners\no f the lapsed interests claimed that they had been deprived of their property with\xc2\xad\nout due process of law, because they had not received notice of the imminent\nlapse of their interests. The Court, by a 5 to 4 margin, rejected this claim, hold\xc2\xad\ning that to initiate a new legislative scheme that adversely affected property rights,\n3\nW e recognize that these laws do not operate under pain o f escheat and thus may be distinguishable from the\nstatute at issue here. The Irving Court, however, specifically stated that restrictions may be enforced \xe2\x80\x9con pain of\nescheat.\xe2\x80\x9d 481 U .S .a t7 1 8 .\n\n44\n\n\x0ca state \xe2\x80\x9cneed do nothing more than enact and publish the law, and afford the cit\xc2\xad\nizenry a reasonable opportunity to familiarize itself with its terms and to com\xc2\xad\nply.\xe2\x80\x9d 454 U.S. at 532 (emphasis added).4\nThe amended version of section 2206 does nothing to provide a grace period\nthat will afford the owner of the lands at issue \xe2\x80\x9ca reasonable opportunity to fa\xc2\xad\nmiliarize itself with its terms and to comply,\xe2\x80\x9d since technically the amended\nstatute was effective upon enactment. We believe, therefore, that applying the\nstandard of Texaco, the Supreme Court would hold that escheat of a property in\xc2\xad\nterest without affording the owner any opportunity to avoid the forfeiture would\nviolate the Due Process Clause.5 Accordingly, we believe it likely that the\nSupreme Court would find that amended section 2206 effects an unconstitutional\ndeprivation of property without due process of law as applied to any allottee who\ndid not have a reasonable opportunity to arrange his affairs to avoid forfeiture of\nhis interest.\nWe understand that final disposition of escheatable interests belonging to al\xc2\xad\nlottees who have died since enactment of the amended statute has been stayed\npending the opinion of this Office. Your Department has also taken steps to ad\xc2\xad\nvise Indian landowners subject to section 2206 of its provisions and effects. These\nsteps have varied from agency to agency, but have included such measures as\nwritten notices sent to all landowners, written notices sent to all tribes, public\nmeetings to explain the law, publication of articles in local newspapers, and oral\nnotice to landowners who visited agency offices. Some agencies have provided\ncomprehensive information to all individual landowners, while other agencies\nappear to have taken no action whatever.\nThe Supreme Court has not specified what constitutes a \xe2\x80\x9creasonable opportu\xc2\xad\nnity\xe2\x80\x9d for those affected to familiarize themselves with law and avoid forfeiture.\nIn the Texaco case, a two-year grace period was deemed sufficient, even though\nthere was no effort by the state to bring the forfeiture law to the attention of the\nowners of affected mineral interests. On the other hand, plaintiffs\xe2\x80\x99 decedents in\nHodel v. Irving died between two and five months after the enactment of origi\xc2\xad\nnal section 2206. Justices Stevens and White concluded that they had not had\n\xe2\x80\x9canything approaching a reasonable opportunity to arrange for the consolidation\nof their respective fractional interests with those of other owners.\xe2\x80\x9d 481 U.S. at\n732-33.\n4 The four dissenting justices argued that the unusual nature o f the Indiana statute required more than simple\npublication and a reasonable grace period. See Texaco, 454 U S at 542 (Brennan, J. dissenting) They would have\nrequired individual notice and an opportunity to cure before any mineral rights could be forfeited.\n5 We are fortified in this conclusion by considering the votes o f individual justices in Hodel v. Irving. Justices\nStevens and White voted to stnke down the onginal section 2206 because it lacked a grace period and would pre\xc2\xad\nsumably find the same omission in the amended version equally objectionable. We assume that the dissenters in\nTexaco (Justices Brennan, White, Marshall, and Powell), who argued in that case that due process required both a\nreasonable grace period and individual notice of the impending forfeiture, would share that view W ith Justice Pow \xc2\xad\nell\xe2\x80\x99s retirement, there are four sitting justices who have already expressed views strongly indicating amended sec\xc2\xad\ntion 2206 is unconstitutional. We have no reason to believe that the other members of the Texaco majority w ho\nvoted to uphold the Indiana statute containing a two-year grace period on the ground that such a period provided\nthose affected a reasonable opportunity to comply with the law would uphold amended section 2206, which con\xc2\xad\ntains no grace period whatever.\n\n45\n\n\x0cAlthough the lack of Supreme Court and lower court authority defining what\nconstitutes \xe2\x80\x9ca reasonable opportunity\xe2\x80\x9d makes this standard difficult to apply,\ncommon sense suggests that there is an inverse relationship between the gov\xc2\xad\nernment\xe2\x80\x99s efforts to publicize a forfeiture statute and the length of time consti\xc2\xad\ntutionally required for the grace period. In other words, if the government sim\xc2\xad\nply publishes a forfeiture statute in the normal manner and relies on word of\nmouth to spread the news, a longer grace period may well be required than if the\ngovernment makes extraordinary efforts to bring the statute to the attention of af\xc2\xad\nfected persons.\nIn the instant case, the efforts by the Department of the Interior to bring\namended section 2206 to the attention of affected Indian landowners have var\xc2\xad\nied widely. Because your Department is much better able than we to determine\nthe effectiveness of its notification efforts, we believe you are in a better posi\xc2\xad\ntion to determine when affected landowners have been afforded a \xe2\x80\x9creasonable\nopportunity\xe2\x80\x9d to adjust their affairs.6\nConclusion\nThe very nature of the Court\xe2\x80\x99s takings jurisprudence, which requires an \xe2\x80\x9ces\xc2\xad\nsentially ad hoc\xe2\x80\x9d analysis of factors \xe2\x80\x9csuch as the economic impact of the regula\xc2\xad\ntion, its interference with reasonable investment backed expectations, and the\ncharacter of the governmental action,\xe2\x80\x9d Kaiser Aetna v. United States, 444 U.S.\n164, 175 (1979), quoted in Hodel v. Irving, 481 U.S. 704,714 (1987), precludes\ncertainty in resolving the question posed by your letter. It is true that amended\nsection 2206 provides allottees only slightly greater opportunities to transfer their\nproperty at death than did the original version condemned in Hodel. Neverthe\xc2\xad\nless, we believe that the crux o f the Court\xe2\x80\x99s objection to the original statute, the\ntotal elimination of any transfer by descent or devise, has been eliminated. In\nview of Congress\xe2\x80\x99 broad authority to regulate the transfer of Indian lands, and\nthe C ourt\xe2\x80\x99s acknowledgment o f the seriousness of the fractionation problem, we\nbelieve amended section 2206 would survive constitutional challenge under the\nTakings Clause. We believe, however, that in order to comply with the require\xc2\xad\nments of the Due Process Clause, application of the statute must be limited to\nthose allottees who had an adequate opportunity to adjust their affairs to avoid\nforfeiture of their interests.\nJohn O . M\n\nc G i n n is\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n6\nFor whatever assistance it may be, how ever, we offer one observation. The amendment of section 2206 was\nenacted on O ctober 30, 1984, and took effect immediately. The first step by the Department o f the Interior in pub\xc2\xad\nlicizing the new statute appears to have been a directive sent by the Deputy to the Assistant Secretary-Indian Af\xc2\xad\nfairs (Operations) to all Area Directors on January 25, 1985, advising that \xe2\x80\x9cArea Offices and Agencies are urged\nto provide all Indian landowners under their jurisdiction with notice of [section 2206\xe2\x80\x99s] effects.\xe2\x80\x9d See Memorandum\nfrom the Acting Deputy to the Assistant Secretary-Indian Affairs (Trust and Economic Development) to all Area\nDirectors (June 9, 1987) Thus those agencies that took any steps at all to notify their clients of the law did so no\nearlier than February 1985. W e suggest that a reasonable grace period may therefore have to extend several months\nfrom February 1985.\n\n46\n\n\x0c"