b'Constitutionality of Legislation to Confer\nCitizenship Upon Albert Einstein\nCongress has the authority to enact a law granting citizenship to Albert Einstein.\n\nApril 9, 1934\n\nMEMORANDUM FOR THE ASSISTANT SOLICITOR GENERAL\nThe Constitution, Article I, Section 8, Clause 4 provides that:\nThe Congress shall have Power . . . to establish an uniform Rule of\nNaturalization . . . .\nIn the early days of the government the courts seemed inclined to the view that\nthe power to admit to citizenship remained in the states, except as Congress might\nprovide uniform rules on the subject, which would supersede any state rules or\nlaws. However, the courts soon adopted the view, which has since prevailed\nunquestioned, that the exclusive power to admit to citizenship vests in the\nCongress. See Frederick Van Dyne, Treatise on the Law of Naturalization of the\nUnited States 6\xe2\x80\x939 (1907) (\xe2\x80\x9cTreatise on Naturalization\xe2\x80\x9d) (discussion of cases);\nU.S.C.A. Const., pt. I, at 378\xe2\x80\x9379 (1928) (digest of cases); United States v.\nMacIntosh, 283 U.S. 605, 615 (1931) (\xe2\x80\x9cNaturalization is a privilege, to be given,\nqualified or withheld as Congress may determine\xe2\x80\x9d).\nThe requirement of uniformity does not appear to have been judicially considered except as indicated in the following excerpt from Darling v. Berry:\nIn my opinion, when a bankrupt, revenue, or naturalization law is\nmade by its terms applicable alike to all the states of the Union,\nwithout distinction or discrimination, it cannot be successfully questioned on the ground that it is not uniform, in the sense of the constitution, merely because its operation or working may be wholly different in one state from another.\n13 F. 659, 667 (C.C.D. Iowa 1882) (emphasis added).\nRuling Case Law states that:\nThe requirement of uniformity is construed to mean that the mode or\nmanner of naturalization prescribed by Congress should have uniform operation in all the states.\n1 R.C.L. \xc2\xa7 62, at 848 (William M. McKinney & Burdett A. Rich eds., 1914).\nCongress has long exercised the power of conferring citizenship by the following methods:\n\n417\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\n(l) General statutes empowering the courts upon the finding of prescribed facts to grant certificates to persons within classes specified.\n(2) General statutory provisions conferring citizenship upon aliens\nwho marry American citizens, upon children of aliens whose parents\nacquire American citizenship, etc.\n(3) Statutes admitting to citizenship aliens residing in the United\nStates during prescribed periods; thus, the Act of April 14, 1802,\nadmitting all persons residing in the United States before January 29,\n1795, upon proof of two years residence.\n(4) The statutes admitting to citizenship all persons, or specified\nclasses of persons, residing in purchased or conquered territory.\n(5) Statutes admitting to citizenship Indians of specified tribes.\n(6) Statutes and resolutions conferring citizenship upon individual aliens, designated by name.\n(7) Practically every treaty of cession has contained provisions concerning the collective naturalization of persons within the ceded territory, sometimes with express exceptions.\nThe foregoing methods are treated with illustrations in Van Dyne, supra, and\nAlexander Porter Morse, Treatise on Citizenship (1881). Boyd v. Thayer states that\n\xe2\x80\x9c[t]he instances of collective naturalization, by treaty or by statute, are numerous,\xe2\x80\x9d\npointing out a number of such instances, and specifically upholding all such\ncollective naturalization as applied to persons within the territory of Nebraska.\nBoyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 162 (1892).\nConcerning naturalization of named individuals by special act or resolution,\nVan Dyne states that \xe2\x80\x9c[t]here are numerous instances of naturalization by special\nstatutes.\xe2\x80\x9d Treatise on Naturalization at 317.\nMorse states generally: \xe2\x80\x9cSometimes the sovereign power or legislative will\nspeaks directly, and grants naturalization to a particular individual by name.\xe2\x80\x9d\nTreatise on Citizenship \xc2\xa7 93, at 128.\nThe following are instances of naturalization of named aliens by a special act or\nresolution of Congress:\nNellie Grant Sartoris, married an alien and readmitted to American\ncitizenship by Resolution of March 18, 1898, 30 Stat. 1496.\nEugene Prince, son of an American citizen residing abroad, admitted\nto citizenship by Resolution of July 19, 1912, 37 Stat. 1346.\nGeorge E. Lerrigo, son of an American citizen residing abroad, admitted to citizenship by Act of February 23, 1915, 38 Stat. 1476.\n\n418\n\n\x0cConstitutionality of Legislation to Confer Citizenship Upon Albert Einstein\n\nMrs. Slidel, of Louisiana, admitted to American citizenship by special act or resolution about 1915. Information supplied by the Bureau\nof Naturalization but no act or resolution can be found\xe2\x80\x94possibly accounted for in that Mrs. Slidel may have been admitted under her\nmaiden name and afterwards married.\nJoseph Beech, an alien of many years residence in the United States,\nadmitted to citizenship by Resolution of February 26, 1917, 39 Stat.\n1495.\nFrances Scoville-Mumm, American citizen married to an alien, readmitted to citizenship by Resolution of October 25, 1919, 41 Stat.\n1449.\nAugusta Louise deHaven-Alten, American citizen married to an alien, readmitted to citizenship by Resolution of April 8, 1920, 41 Stat.\n1463.\nThe Bureau of Naturalization (Mr. Volker) states that there have been other\nsuch special acts and resolutions but that no records have been kept and that it\nwould be impossible to compile such cases except through the expedient of a pageby-page examination of the statutes since the beginning of the government.\nOf course, all efforts in Congress to confer citizenship by a special act or resolution are not successful. For example, a resolution was introduced in the House of\nRepresentatives on December 3, 1930, to confer citizenship upon Mr. Brent\nBalchen, the renowned explorer. 74 Cong. Rec. 166. While the Resolution remained undisposed of, Mr. Balchen applied for and obtained naturalization under\nthe general statutes. This information is supplied by the Bureau of Naturalization.\nAll such acts and resolutions have conferred citizenship \xe2\x80\x9cunconditionally,\xe2\x80\x9d\nusually in language substantially similar to that of the resolution now pending,\nexcept, of course, as to the part which recites the considerations upon which the\nproposed action would be taken.\nMr. Volker stated that the files of the Bureau of Naturalization disclose that no\nquestion concerning the power of Congress to confer citizenship in such manner\nwas raised until recent years. Formerly, they considered such questions when\npresented only upon consideration of the merits of the particular case, but lately\nthey have inclined to the view that such naturalization may be construed as a\nviolation of the constitutional provision concerning \xe2\x80\x9can uniform Rule.\xe2\x80\x9d He says\nthey have no authorities, but rely solely upon the language of the Constitution.\nI think the view presently entertained by the Bureau of Naturalization is erroneous. As indicated above, the uniformity mentioned is geographical uniformity.\nPrior to the Constitution when the states exercised the power of naturalization, it\nwas possible for a person to be a citizen in one state and an alien in another. It was\nthis condition which the constitutional provision was intended to remedy. Furthermore, the practice, since the earliest days, is opposed to the view that Congress\n\n419\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nmay not discriminate against or in favor of aliens upon considerations of race,\nnationality, geographical residence (either abroad or in this country), relationships\nby blood or consanguinity, periods of residence, education, etc. In other words,\nCongress has the sole power to determine the requisites of citizenship by naturalization, and to determine even more specifically who may or who may not be\nadmitted to such citizenship.\nMr. Volker says that they concede the power of Congress to admit to citizenship directly rather than leaving it to others to ascertain the prescribed facts and\nthey admit the power of Congress to specify a class so limited that perhaps only\nProfessor Einstein might come within it. These things, I think, are necessarily true\nand when you accept them, it appears to me to be somewhat inconsistent to\nquestion the power of Congress to admit Professor Einstein to citizenship by name\nand without more. Even assuming that the uniformity requirement means avoidance of discrimination as applied to individual aliens, it would still be necessary to\nprove that Congress would not take the same action with respect to other aliens of\nsimilar status and circumstances in order to prove discrimination.\nThe files have been examined carefully and do not reveal any previous consideration of such a question in this department.\nOf course, it may be unwise to admit Professor Einstein to citizenship, and I\nhave found no case of the admission of an alien under precisely similar circumstances.\nJ.T. FOWLER, JR.\nAttorney-Adviser\nOffice of the Assistant Solicitor General\n\n420\n\n\x0c'


b'Validity of Congressional-Executive Agreements that Substan\xc2\xad\ntially Modify the United States\xe2\x80\x99 Obligations Under An Exist\xc2\xad\ning Treaty\nIt lies within Congress\xe2\x80\x99s power to authorize the President to modify substantially the United States\xe2\x80\x99\ndomestic and international legal obligations under a prior treaty, including an arms control treaty,\nby making an executive agreement with our treaty partners, without Senate advice and consent.\nN o v e m b e r 2 5 , 1996\nM e m o r a n d u m O p in io n\nS p e c ia l A s s is t a n t\nL e g a l A d v is e r\n\nto th e\n\nto the\n\nfor th e\n\nP r e s id e n t\n\nand\n\nN a t io n a l S e c u r it y C o u n c il\n\nY o u have sought our views on the question whether Congress can authorize\nthe President to enter into an international agreement that substantially modifies\nthe obligations which the United States would otherwise have under a pre-existing\ntreaty, or whether only the Senate can do so, pursuant to the treaty-making power,\nU.S. Const, art. II, \xc2\xa72, cl. 2.1 We conclude that it lies within the power of Con\xc2\xad\ngress to authorize the President substantially to modify the United States\xe2\x80\x99 obliga\xc2\xad\ntions under a prior treaty, including an arms control treaty.\nA \xe2\x80\x9c treaty\xe2\x80\x9d in the constitutional sense2 has two aspects: it may state a judicially\nenforceable rule of domestic law; and it creates binding obligations between or\namong the parties in international law. (See Part I below.) It is well established\nthat Congress has the power, by legislation, to modify the domestic legal effects,\nif any, of a treaty. (See Part II below.) Insofar as the treaty embodies international\nlegal obligations, these may remain in force, even after an Act of Congress has\nsuperseded the treaty as a matter of domestic law; but the States that are parties\nto the treaty may consent to the modification of the obligations that the treaty\nimposes. (See Part El below.) If Congress authorizes the President to enter into\n1The context in which you had originally raised this question was Congress\xe2\x80\x99s consideration o f a proposed provision\no f the Department o f Defense Authorization Act for Fiscal Year 1997, purporting to prohibit the United States\nfrom being bound by any international agreement that would substantively modify the Treaty on the Limitation\no f Anti-Ballistic Missile Systems, May 26, 1972, U nited States-U .S.S.R., T.I.A.S. 7503, 23 U.S.T. 3435, unless\nthat agreement was made pursuant to the President\xe2\x80\x99s treaty-making power specified in Article II, Section 2, Clause\n2 of the Constitution. W e had previously addressed another aspect o f that legislation. See Constitutionality o f Legisla\xc2\xad\ntive Provision Regarding ABM Treaty, 20 Op. O.L.C. 246 (1996).\nOur use o f the term authorize necessarily contemplates the grant o f authority prior to taking legally effective\naction. We thus perceive no distinction between \xe2\x80\x9c pre\xe2\x80\x9d -authorizalion and authorization in the present context.\n2 It is important to distinguish the constitutional sense o f the term \xe2\x80\x9c treaty,\xe2\x80\x9d which is relevant here, from other\nuses of the term in international or domestic law. \xe2\x80\x9c The word 4treaty\xe2\x80\x99 has more than one meaning. Under principles\no f international law, the word ordinarily refers to an international agreement concluded between two sovereigns,\nregardless o f the manner in which the agreement is brought into force. Under the United States Constitution, o f\ncourse, the word \xe2\x80\x98treaty\xe2\x80\x99 has a far more restrictive meaning. Article II, \xc2\xa7 2 , cl. 2, o f that instrument provides that\nthe President \xe2\x80\x98shall have Power, by and with the Advice and Consent o f the Senate, to make Treaties, provided\ntwo thirds o f the Senators present concur.\xe2\x80\x99 \xe2\x80\x9d Weinberger v. Rossi, 456 U.S. 25, 29-30 (1982) (citation and footnotes\nomitted).\n\n389\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nan executive agreement with our treaty partners to modify those obligations, and\nthose States consent to such modifications when the President proposes them, then\nthe treaty obligations can be modified by executive agreement, without Senate\nadvice and consent. (See Part IV below.)\nI.\n\nAt the outset, it is essential to recognize the dual nature of treaties, as instru\xc2\xad\nments of both domestic and international law. As the Supreme Court has said,\n[a] treaty is primarily a compact between independent nations. It\ndepends for the enforcement of its provisions on the interest and\nthe honor of the governments which are parties of it. If these fail,\nits infraction becomes the subject of international negotiations and\nreclamations, so far as the injured party chooses to seek redress,\nwhich may in the end be enforced by actual war. It is obvious that\nwith all this the judicial courts have nothing to do and can give\nno redress. But a treaty may also contain provisions which confer\ncertain rights upon the citizens or subjects of one of the nations\nresiding in the territorial limits of the other, which partake of the\nnature of municipal law, and which are capable of enforcement as\nbetween private parties in the courts of the country.\nH ead M oney Cases, 112 U.S. 580, 598 (1884).3\n\n3 See also Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) (Marshall, C J .) ( \xe2\x80\x9c A treaty is in its nature a contract\nbetw een tw o nations, not a legislative act. It does not generally effect, o f itself, the object to be accomplished,\nespecially so far as its operation is infra-territorial; but is carried into execution by the sovereign power of the\nrespective parties to the instrument. In the U nited States a different principle is established. Our constitution declares\na treaty to be the law o f the land. It is, consequently, to be regarded in courts of justice as equivalent to an act\no f the legislature, w henever it operates o f itself without the aid o f any legislative provision.\xe2\x80\x9d ); Taylor v. Morton,\n23 F. Cas. 784, 785 (C.C.D. Mass. 1855) (N o. 13,799) (Curtis, Circuit Justice), affd, 67 U.S. (2 Black) 481 (1862)\n(treaties are \xe2\x80\x9c contracts, by which [sovereigns] agree to regulate their ow n conduct\xe2\x80\x9d and, under the Constitution,\n\xe2\x80\x9c part o f o ur municipal law \xe2\x80\x9d ), Goldwater v. Carter, 617 F.2d 697, 705 (D.C. Cir.), vacated, 444 U.S. 996 (1979)\n( \xe2\x80\x9c a treaty is sui generis. It is not just another law. It is an international com pact, a solemn obligation o f the United\nStates and a \'suprem e Law \xe2\x80\x99 that supersedes state policies and prior federal laws. For clarity o f analysis, it is thus\nwell to distinguish between treaty-making as an international act and the consequences which flow domestically\nfrom such act. In one realm the Constitution has conferred the prim ary role upon the President; in the other, Congress\nretains its prim ary role as lawmaker.\xe2\x80\x9d ); 1 W estel W oodbury W illoughby, The Constitutional Law o f the United\nStates \xc2\xa73 17a, at 577 (2d ed. 1929) ("T reaties entered into by the United States may be viewed in tw o lights:\n(1) as constituting parts o f the supreme law o f the land, and (2) as compacts between the United States and foreign\nPow ers.\xe2\x80\x9d ).\n\n390\n\n\x0cValidity o f Congressional-Executive Agreements that Substantially M odify the United States\xe2\x80\x99\nObligations Under An Existing Treaty\n\nA \xe2\x80\x9c treaty,\xe2\x80\x9d therefore, has two aspects: insofar as it is self-executing, it pre\xc2\xad\nscribes a rule of domestic or municipal law4 and, as a compact or contract be\xc2\xad\ntween nations, it gives rise to binding obligations in international law.5\nII.\n\nUnder the Supremacy Clause of the Constitution, treaties, like Acts of Congress,\nare made \xe2\x80\x9c supreme Law,\xe2\x80\x9d U.S. Const, art. VI, cl. 2; Maiorano v. Baltim ore &\nOhio R.R. Co., 213 U.S. 268, 272-73 (1909). Accordingly, \xe2\x80\x9c treaty provisions,\nwhich are self-executing in the sense that they require no additional legislation\nto make them effective, are equivalent to and of like obligation with an act of\nCongress.\xe2\x80\x9d 6 Further, insofar as a treaty incorporates a rule of domestic law, the\nSupreme Court has long held that it may be modified or repealed by a later Act\nof Congress.7 See H ead M oney Cases, 112 U.S. at 599 (\xe2\x80\x9c so far as a treaty made\nby the United States with any foreign nation can become the subject of judicial\ncognizance in the courts of this country, it is subject to such acts as congress\nmay pass for its enforcement, modification, or repeal\xe2\x80\x9d ); La Abra Silver Mining\nCo. v. United States, 175 U.S. 423, 460 (1899) (\xe2\x80\x9c Congress by legislation, and\nso far as the people and authorities of the United States are concerned, could\nabrogate a treaty made between this country and another country which had been\nnegotiated by the President and approved by the Senate.\xe2\x80\x9d ); A lvarez y Sanchez\nv. United States, 216 U.S. 167, 175-76 (1910) (\xe2\x80\x9c an act of Congress, passed after\na Treaty takes effect, must be respected and enforced, despite any previous or\nexisting Treaty provision on the same subject\xe2\x80\x9d ); United States v. Stuart, 489 U.S.\n4 As C hief Justice M arshall pointed out in Foster v. Neilson, 27 U.S. at 314, not all treaty provisions are self\xc2\xad\nexecuting: they may require implementing legislation to be given their full effect. Many treaties are, however, self\xc2\xad\nexecuting. For example, in United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801) (M arshall,\nC J.), the Court considered a treaty between the United States and France, ratified during the pendency of the appeal\no f the condemnation o f a seized French vessel, that required that vessels seized by either nation should be restored\nif not yet definitively condemned. The Court held that the treaty controlled the disposition o f the prize: the treaty\nwas effective o f its ow n force, without need o f any further legislative action, and thus provided the rule of decision\non appeal, rather than a prior statute that would have authorized the vessel\'s condemnation. The Supreme Court\nhas given \xe2\x80\x9c self-executing\xe2\x80\x9d effect to numerous treaties. See Disposition by Treaty o f Territory or Property Belonging\nto the United States, 43 O p. A tt\xe2\x80\x99y Gen. 96, 99, 103-04 & n.6 (1977) (Bell, A .G .) (citing cases), see also Samuel\nB. Crandall, Treaties: Their Afaking and Enforcement \xc2\xa773, at 162-63 & n.16 (2d ed. 1916) (discussing distinction\nbetween self-executing and non-self-executing treaties, and illustrating former category).\ns See The Vienna Convention on the Law o f Treaties, ait. 26 ( \xe2\x80\x9c Every treaty in force is binding upon the parties\nto it and must be perform ed by them in good faith.\xe2\x80\x9d ), reprinted in Basic Documents in International Law 388,\n400 (Ian Brownlie ed., 4th ed. 1995). Although not ratified by the United States, this convention \xe2\x80\x9c is frequently\ncited . . . as a statement o f customary international law .\xe2\x80\x9d Review o f Domestic and International Legal Implications\no f Implementing the Agreement with Iran, 4A Op. O.L.C. 314, 321 (1981).\n6 Canadian Boundary Waters, 30 Op. A tt\xe2\x80\x99y Gen. 351, 353 (1915) (citing Foster v. Neilson, 27 U.S. at 314; The\nCherokee Tobacco, 78 U.S. ( I I Wall.) 616, 621 (1870); Chew Heong v. United States, 112 U.S. 536, 539 (1884);\nHead Money Cases, 112 U.S. at 599; and Whitney v. Robertson, 124 U.S. 190, 194 (1888)). See also Cook v.\nUnited States, 288 U.S. 102, 118-19 (1933); Exemption o f Resident Aliens from Military Service Pursuant to Trea\xc2\xad\nties \xe2\x80\x94 Bar to Eligibility fo r Citizenship, 42 Op. Att\xe2\x80\x99y Gen. 373, 379 (1968).\n\xe2\x80\x99 There was some earlier authority to the contrary. See Thompson\'s Case, 9 Op. A tt\xe2\x80\x99y Gen. 1, 6 (1857) (Black,\nA.G.) (\xe2\x80\x9c Congress has no authority to abrogate a treaty made by the Executive, any more than the Executive has\nto abrogate a law passed by Congress.\xe2\x80\x9d ).\n\n391\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\n353, 375 (1989) (Scalia, J., concurring in judgment) (Congress \xe2\x80\x9c may abrogate\nor amend [a treaty] as a matter of internal law by simply enacting inconsistent\nlegislation.\xe2\x80\x9d ); Congressional Authority to M odify an Executive Agreement Settling\nC laim s A gainst Iran, 4A 0p. O.L.C. 289 (1980).8\nThe rationale for this rule was set forth in 1855 by Justice Curtis, sitting as\nCircuit Justice. Justice Curtis wrote:\nThe first and most obvious distinction between a treaty and an\nact of congress is, that the former is made by the president and\nratified by two thirds of the senators present; the latter by majorities\nof both houses of congress and the president, or by the houses only,\nby constitutional majorities, if the president refuses his assent. Ordi\xc2\xad\nnarily, it is certainly true, that the powers of enacting and repealing\nlaws reside in the same persons. But there is no reason, in the na\xc2\xad\nture of things, why it may not be otherwise. . . . I think it is impos\xc2\xad\nsible to maintain that, under our constitution, the president and sen\xc2\xad\nate exclusively, possess the power to modify or repeal a law found\nin a treaty. If this were so, inasmuch as they can change or abrogate\none treaty, only by making another inconsistent with the first, the\ngovernment of the United States could not act at all, to that effect,\nwithout the consent of some foreign government; for no new treaty,\naffecting, in any manner, one already in existence, can be made\nwithout the concurrence of two parties, one of whom must be a\nforeign sovereign. That the constitution was designed to place our\ncountry in this helpless condition, is a supposition wholly inadmis\xc2\xad\nsible.\nTaylor v. M orton, 23 F. Cas. at 785-86.\n\nAccordingly, it lies within the power of Congress to modify the substantive\nobligations that a treaty imposes upon the United States, or to authorize the Presi\xc2\xad\ndent to modify those obligations, insofar as those treaty obligations are binding\nas a matter of domestic or municipal law. The advice and consent of the Senate\nare not necessary to achieve that outcome.\n\n8 Sim ilarly, a treaty can supersede a prior A ct o f Congress to the extent that the two are incompatible. See Charlton\nv. Kelly , 229 U .S. 447, 463 (1913); United States v. Lee Yen Tai, 185 U.S. 213, 220 (1902); Canadian Boundary\nWaters, 30 Op. A tt\xe2\x80\x99y Gen. at 352-53; Congressional Research Service, The Constitution o f the United States o f\nAmerica: Analysis and Interpretation, S. Doc. N o. 99-16, at 505 (1982); Samuel B. Crandall, Treaties: Their Making\nand Enforcement \xc2\xa77 2 , at 161-62.\n\n392\n\n\x0cV alidity o f C ongressional-E xecutive A greem ents that Substantially M o d ify the U nited States\'\nO bligations Under A n Existing Treaty\n\nIII.\nA.\nThe unilateral modification or repeal of a provision of a treaty by Act of Con\xc2\xad\ngress, although effective as a matter of domestic law, will not generally relieve\nthe United States of the international legal obligations that it may have under\nthat provision. See Pigeon R iver Improvement, Slide & Boom Co. v. Charles W.\nCox, Ltd., 291 U.S. 138, 160 (1934) (while an Act of Congress that conflicted\nwith a treaty provision \xe2\x80\x9c would control in our courts as the later expression of\nour municipal law . . . the international obligation [would] remain[] unaffected\xe2\x80\x9d ).\nSecretary of State Charles Evans Hughes (later the author, as Chief Justice, of\nthe Pigeon R iver opinion) explained the position well:\na judicial determination that an act of Congress is to prevail over\na treaty does not relieve the Government of the United States of\nthe obligations established by a treaty. The distinction is often ig\xc2\xad\nnored between a rule of domestic law which is established by our\nlegislative and judicial decisions and may be inconsistent with an\nexisting Treaty, and the international obligation which a Treaty es\xc2\xad\ntablishes. When this obligation is not performed a claim will inevi\xc2\xad\ntably be made to which the existence of merely domestic legislation\ndoes not constitute a defense and, if the claim seems to be well\nfounded and other methods of settlement have not been availed of,\nthe usual recourse is arbitration in which international rules of ac\xc2\xad\ntion and obligations would be the subject of consideration.!9]\n\xe2\x80\x9c [W]e are bound to observe [a treaty] with the most scrupulous good faith\n. . . [0]ur Government could not violate [it], without disgrace.\xe2\x80\x9d The Amiable\nIsabella, 19 U.S. 1, 68 (1821). \xe2\x80\x9c The foreign sovereign between whom and the\nUnited States a treaty has been made, has a right to expect and require its stipula\xc2\xad\ntions to be kept with scrupulous good faith . . . .\xe2\x80\x9d Taylor v. Morton, 23 F. Cas.\nat 785.10 \xe2\x80\x9c A party may not invoke the provisions of its internal law as justification\n9 Letter for the Secretary o f the Treasury, from the Secretary o f State, Feb. 19, 1923, quoted in 5 Green Haywood\nHackworth, Digest o f International Law \xc2\xa7 489, at 194-95 (1943).\n10C hief Justice (and form er President) Taft, sitting as sole arbitrator in an international dispute, stated that\na treaty may repeal a statute, and a statute may repeal a treaty. The Supreme Court cannot under the\nConstitution recognize and enforce rights accruing to aliens under a treaty which Congress has repealed\nby statute. In an international tribunal, however, the unilateral repeal o f a treaty by a statute would not\n\naffect the rights arising under it and its judgment would necessarily give effect to the treaty and hold\nthe statute repealing it o f no effect.\nContinued\n\n393\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nfor its failure to perform a treaty.\xe2\x80\x9d Vienna Convention on the Law of Treaties,\nart. 27, reprinted in Basic Docum ents in International Law at 400.\nB.\nAs with contracts of other kinds, however, the parties to a treaty may agree\nto modify the obligations to which the treaty gives rise. It is \xe2\x80\x9c a general principle\nof [international] law recognized by civilized nations\xe2\x80\x9d that \xe2\x80\x9c [a]ny legal position,\nor system of legal relationships, can be brought to an end by the consent of all\npersons having legal rights and interests which might be affected by their termi\xc2\xad\nnation.\xe2\x80\x9d International Status o f South-West Africa, 1950 I.C.J. 128, 167 (July 11)\n(Separate Opinion of Judge Read). As a general rule of international law, there\xc2\xad\nfore, \xe2\x80\x9c [a] treaty may be amended by agreement between the parties.\xe2\x80\x9d Vienna\nConvention on the Law of Treaties, art. 39, reprinted in Basic Documents in Inter\xc2\xad\nnational L aw at 404.11 The principle was well stated in a study prepared for the\nSenate Foreign Relations Committee:\nThe amendment of a binding international agreement may be ac\xc2\xad\ncomplished in a variety of ways including, among others, . . . by\nthe consent of the parties . . . . Amendment or modification of\nan international agreement by consent of the parties is recognition\nof the fact that consent is the basis of international agreements.\nAccordingly, the parties are at liberty to change an international\nagreement regardless of its terms. For similar reasons, a later agree\xc2\xad\nment on the same subject involving the same parties that expressly\nor impliedly modifies an earlier agreement will be regarded as ef\xc2\xad\nfecting the resulting change.\nTreaties an d O ther International Agreements: The R ole o f the United States Sen\xc2\xad\nate, S. Rep. No. 53, 103d Cong., 1st Sess. 140 (Comm. Print 1993) (\xe2\x80\x9c S. Rep.\n\n53\xe2\x80\x9d ).12\n18 Am. J. In t\xe2\x80\x99l L. 147, 159-60 (1924) (em phasis added). See also The Ship James and William, 37 Ct. Cl. 303,\n306 (1902) (decree o f French Government abrogating provisions o f treaty o f 1778 relating to contraband goods\non neutral vessels justified French courts in condem ning such vessels if seized by French cruisers, but did not abrogate\nany treaty right o f the U nited States); Ropes v. Clinch, 20 F. Cas. 1171, 1174 (C.C.S.D.N.Y. 1871) (No. 12,041)\n(Congress m ay \xe2\x80\x9c legislate as if no such treaty existed, in modification or alteration o f what, by force o f the treaty,\nhas been the law heretofore, thus modifying the law o f the land, without denying the existence o f the treaty, or\nthe obligations thereof betw een the two governments, as a contract, and answ er therefor to such foreign government,\nor meet its reclam ation o r retaliation as may b e necessary.\xe2\x80\x9d ); I Westel W oodbury W illoughby, The Constitutional\nLaw o f the United States \xc2\xa7 3 2 4 , at 585 (\xe2\x80\x9c T h e termination o f a treaty as an international compact carries with it\nthe annulm ent o f the agreem ent as a law o f th e land, but its annulment as a law by Congress does not cany with\nit its annulment as an international compact.\xe2\x80\x9d ).\n11 This C onvention details in arts. 40 and 41 more specific rules for the amendment (as among all the parties)\nand modification (as among certain o f the parties) o f a multilateral treaty.\n12 See also David A. Koplow, When Is An Amendment Not An Amendment? Modification O f Arms Control Agree\xc2\xad\nments Without The Senate, 59 U. Chi. L. Rev. 981, 1023 (1992) ( \xe2\x80\x9c International law imposes few limitations upon\nparties\xe2\x80\x99 abilities to change th eir treaty obligations. In general, states are free to alter their commitments to any\n\n394\n\n\x0cValidity o f Congressional-Executive Agreements that Substantially M odify the United States\'\nObligations Under An Existing Treaty\n\nThe United States has often modified its treaty rights and obligations through\nagreements with its treaty partners: \xe2\x80\x9c following a precedent established in 1784\nwhen the Treaty of Commerce and Amity with France was modified by an ex\xc2\xad\nchange of notes between the French Foreign Minister and Benjamin Franklin, ex\xc2\xad\necutive agreements have not infrequently been utilized as a method of altering\ntreaties.\xe2\x80\x9d 13 Thus, assuming that the consent of our treaty partners was obtained,\nthe United States could, as a matter of international law, substantially modify\nits pre-existing treaty obligations by agreement with its treaty partners.\nThe only remaining question, therefore, is whether, as a matter of constitutional\nlaw, the President has the power to modify, by means of an executive agreement\nauthorized by Act of Congress, the international legal obligations that the United\nStates has under a treaty, or whether the only constitutional method by which\nthe President may achieve that end is through the advice and consent of the Senate.\nWe discuss that question in the following section.\nIV.\nA.\n\xe2\x80\x9c When the President acts pursuant to an express or implied authorization of\nCongress, his authority is at its maximum, for it includes all that he possesses\nin his own right plus all that Congress can delegate.\xe2\x80\x9d Youngstown Sheet & Tube\nCo. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). The Supreme\nCourt has repeatedly emphasized the sweeping authority of the President in the\nfield of foreign affairs, particularly when his own considerable inherent powers\nin that area are augmented by those of Congress. See, e.g., Dam es & M oore v.\nRegan, 453 U.S. 654, 674 (1981); Chicago & Southern A ir Lines, Inc. v. W ater\xc2\xad\nman S.S. Corp., 333 U.S. 103, 109-10 (1948); H irabayashi v. United States, 320\nU.S. 81, 92-93 (1943); United States v. Curtiss-W right Export Corp., 299 U.S.\n304 (1936). We believe that the inherent powers of the President over foreign\naffairs, coupled with whatever powers Congress can and does delegate to him\nin this area, are constitutionally sufficient to enable the President to make an exec\xc2\xad\nutive agreement that substantially modifies the international legal obligations of\nthe United States under a prior treaty.14\nextent, at any time, and in any manner, provided that they are reasonably clear about what they are doing and\nthat they reciprocally agree or at least acquiesce in the outcom e.").\n13 Myres S. McDougal & A sher Lans, Treaties and Congressional-Executive or Presidential Agreements: Inter\xc2\xad\nchangeable Instruments o f National Policy, 5 4 Yale L.J. 181, 334 (1945) (footnote omitted).\n14 We do not consider here how far the President has the authority, acting without either Senate advice and consent\nor an Act of Congress, substantially to modify the United States\xe2\x80\x99 obligations under treaty or international law. We\nnote, however, that the executive branch has taken the position that the President possesses the authority to terminate\na treaty in accordance with its terms by his unilateral action, and a plurality o f the Supreme Court concluded that\nthe issue was a non-justiciable political question. See Goldwater v. Carter, 444 U.S. at 1003 (plurality op.). See\ngenerally Memorandum for the Attorney General, from Theodore B. Olson, Assistant Attorney G eneral, Office of\nContinued\n\n395\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nThe Constitution makes the President the Nation\xe2\x80\x99s \xe2\x80\x9c guiding organ in the con\xc2\xad\nduct of our foreign affairs . . . . He . . . was entrusted with . . . vast powers\nin relation to the outside world . . .\nLudecke v. Watkins, 335 U.S. 160, 173\n(1948).15 Pursuant to his inherent powers, the President has made executive agree\xc2\xad\nments with other countries, not submitted to the Senate for its advice and consent\nor to Congress for its approval, including agreements that regulated the use of\nmilitary forces.16 Congress to o \xe2\x80\x94 as distinct from the Senate under its treaty-making power\xe2\x80\x94 has some power to vary the international legal obligations of the\nUnited States.17 So, for example, in W einberger v. Rossi, 456 U.S. at 32, the\nLegal Counsel, Re: Presidential Authority to Modify the Conditions under which the United States Will Recognize\nthe Compulsory Jurisdiction o f the International Court o f Justice Without Prior Congressional Approval at 1 (Apr.\n9, 1984) ( \xe2\x80\x9c although the question has never been definitively resolved by the courts, a substantial body of judicial,\nhistorical, and scholarly support exists for th e proposition that, under certain circumstances, the President is constitu\xc2\xad\ntionally em pow ered unilaterally to terminate an existing treaty in accordance with its term s"). But see International\nLoad Line Convention, 40 Op. A tt\xe2\x80\x99y Gen. 119, 123 (1941) (opining that President had power to suspend a treaty,\nbut suggesting that \xe2\x80\x9c action by the Senate o r by the C ongress" would be \xe2\x80\x9c required" to \xe2\x80\x9c denounce" or \xe2\x80\x9c otherwise\nabrogate! ] \xe2\x80\x99\xe2\x80\x99 it).\nA ssum ing that the President does have th e power unilaterally to terminate a treaty, it appears to follow that he\nalso has the authority to relieve the United States o f the affirmative obligations imposed on it by particular treaty\nprovisions. It would not follow, however, th at he had the authority unilaterally to augment the United States\xe2\x80\x99 treaty\nobligations. Moreover, it has been held that th e President has no constitutional power to abrogate rights under Indian\ntreaties. See Mille Lacs Band o f Chippewa Indians v. State o f Minnesota, 861 F. Supp. 784, 823-24 (D. Minn.\n1994), appeal dismissed, 48 F.3d 373 (8th C ir. 1995).\n13 The President\xe2\x80\x99s authority in the field o f foreign affairs flows, in large part, from the President\xe2\x80\x99s position as\nC hief Executive, U.S. Const, art. II, \xc2\xa71, cl. 1, and as Com m ander in Chief, id. art. II, \xc2\xa72 , cl. 1. It also derives\nfrom his more specific powers to \xe2\x80\x9c make T rea tie s" with the advice and consent of two-thirds o f the Senators present,\nid. art. H, \xc2\xa7 2 , cl. 2; to \xe2\x80\x9c appoint Ambassadors . . . and C onsuls," id:, and to \xe2\x80\x9c receive Ambassadors and other\npublic M inisters," id. art. H, \xc2\xa7 3 . The Supreme Court has repeatedly recognized the President\xe2\x80\x99s authority with respect\nto the conduct o f foreign affairs. See, e.g.. Department o f Navy v. Egan, 484 U.S. 518, 529 (1988) (the Supreme\nCourt has \xe2\x80\x9c recognized \xe2\x80\x98the generally accepted view that foreign policy was the province and responsibility of the\nE xecutive\xe2\x80\x99 \xe2\x80\x99\xe2\x80\x99) (quoting Haig v. Agee, 453 U .S . 280, 2 9 3 -9 4 (1981)); Alfred Dunhill o f London, Inc. v. Republic\no f Cuba, 425 U.S. 682, 70 5 -0 6 n.18 (1976) ( \xe2\x80\x9c [T]he conduct o f [foreign policy] is committed primarily to the Execu\xc2\xad\ntive Branch . . . ." ); United States v. Louisiana, 363 U.S. 1, 35 (I960) (the President is \xe2\x80\x9c the constitutional represent\xc2\xad\native o f the United States in its dealings with foreign nations").\n16The President\xe2\x80\x99s \xe2\x80\x9c inherent pow ers" as Com m ander in C hief are \xe2\x80\x9c clearly extensive." Loving v. United States,\n517 U.S. 748, 776 (1996) (Scalia, J., concurring in part and in the judgment). The executive agreements that past\nPresidents have concluded under the Com m ander in C hief authority have often been \xe2\x80\x9c important com pacts," such\nas the armistice, or peace protocol, with Spain, o f A ugust 12, 1898, establishing the basis o f the conditions for\nending the Spanish-American W ar. 2 Charles Cheney Hyde, International Law Chiefly As Interpreted and Applied\nby the United States \xc2\xa7508, at 1411 (2d rev. ed. 1945). See also 5 John Bassett Moore, A Digest o f International\nLaw 213(1906).\n17 That proposition might be questioned. See, e.g., 1 W estel W oodbury Willoughby, The Constitutional Law o f\nthe United Stales \xc2\xa7324, at 585 ( \xe2\x80\x9c it seems almost too clear for argument that Congress, not having been made\nby the C onstitution a participant in the treaty-making pow er, has no constitutional authority to exercise that pow er\neither affirmatively or negatively, that is, by creating or destroying international agreem ents").\nW e believe that Congress does possess delegable authority in this area. First, among the powers vested in Congress\nby the Constitution is the pow er o f declaring w ar. U.S. Const, art. 1, \xc2\xa78, cl. 11. A declaration of war is a legislative\nact that can have the effect o f abrogating a treaty in whole o r in part. See Karnuth v. United States, 279 U.S.\n231, 239-41 (1929) (Declaration o f War o f 1812 abrogated provision o f Treaty of 1794 granting British subjects\nright freely to enter United States); see also Valk v. United States, 29 Ct. Cl. 62, 67 (1894), ( \xe2\x80\x9c war supersedes\ntreaties o f peace and friendship"), affd, 168 U.S. 703 (1897); cf. Argento v. Horn, 241 F.2d 258, 260-62 (6th\nC ir.) (Potter Stewart, J.) (extradition treaty w ith Italy was suspended but not abrogated by war), cert, denied, 355\nU.S. 818 (1957). W hen Congress acts under its war power, \xe2\x80\x9c a wide latitude o f discretion must be accorded" to\nit, for on that pow er \xe2\x80\x9c the very life of the nation depends." Hamilton v. Kentucky Distillers & Warehouse Co.,\n251 U.S. 146, 163 (1919) (Brandeis, J.); see also Dryfoos v. Edwards, 284 F. 596, 599 (S.D.N.Y. 1919) (L. Hand,\nJ.) (C ongress\xe2\x80\x99 w ar pow er may \xe2\x80\x9c be inferred [not only from specific clauses of article I, but also] from the fact\nthat the United States is the only sovereign recognized among the world o f nations, within the territory of the\n\n396\n\n\x0cValidity o f Congressional-Executive Agreements that Substantially Modify the United States\'\nObligations Under A n Existing Treaty\n\nSupreme Court implied that Congress, if it expressed its intent with sufficient\nclarity, could effect the abrogation of the United States\xe2\x80\x99 international obligations,\nas set forth in international agreements for the hiring of local nationals at the\nUnited States\xe2\x80\x99 overseas military bases.18 It can reasonably be maintained that,\nif Congress may effect the abrogation of international obligations, it has some\npower to authorize the President to modify them.\nB.\nThe practice of the two branches discloses many examples of binding agree\xc2\xad\nments that Presidents have made with foreign States, relying on the inherent au\xc2\xad\nthority of the Executive, as affirmed and amplified by Congress. As the Senate\nForeign Relations Committee study cited above points out,\nCongressional authorization for the conclusion of international\nagreements dates from the earliest days of the Nation\xe2\x80\x99s constitu\xc2\xad\ntional history. Thus, in 1790 Congress empowered the President\nto pay off the Revolutionary War debt by borrowing money from\nforeign countries \xe2\x80\x9c upon terms advantageous to the United States\xe2\x80\x9d\nand to conclude \xe2\x80\x9c such other contracts respecting the said debt as\nshall be found for the interest of the said States.\xe2\x80\x9d Two years later\nUnited States, at once responsible and vested with any o f the powers which are customarily exercised by such\na sovereign so charged\xe2\x80\x9d ), a ffd sub nom., Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146 (1919).\nAccordingly, it is at least arguable that Congress\xe2\x80\x99 war power enables it to enact legislation, other than a formal\ndeclaration o f war, that authorizes the President to vary the United States* obligations under disarmament or other\npolitical-military treaties. Accord Armen R. Vaitian, Approval o f SALT Agreements by Joint Resolution o f Congress,\n21 Harv. J. Int\xe2\x80\x99l L. 421, 441 (1980) (\xe2\x80\x9c it is clear that the power o f Congress to legislate with regard to arm s control\nmatters is nearly unlimited, and, when combined with the President\'s authority as Commander in Chief, is plenary\xe2\x80\x9d )\n(footnotes omitted).\nFurthermore, Congress has been held to have the power to make peace by legislation, as an alternative to a\ntreaty. See Ludecke v. Watkins, 335 U.S. at 168. Indeed, because o f the Senate\xe2\x80\x99s refusal to ratify the Treaty of\nVersailles, Congress by joint resolution authorized the President to terminate the war with Germany, see 42 Stat.\n105 (1921). The validity o f Congress\xe2\x80\x99 action was recognized by both the Supreme Court, see Commercial Trust\nCo. v. Miller, 262 U.S. 51, 57 (1923), and by the Executive, see Proclamation o f Peace by the President, Aug.\n25, 1921, 42 Stat. 1939, 1944. Again, it may be inferred that if Congress may make peace, it may authorize Executive\nagreements, such as arms control measures, that conduce to peace.\nFinally, the Constitution vests in Congress the power to \xe2\x80\x9c provide for the common Defence . . . of the United\nStates.\xe2\x80\x9d U.S. Const, art. I, \xc2\xa7 8 , cl. 1. The Supreme Court has indicated that this clause enables Congress to authorize\nthe President to make agreements with foreign States that were directly related to the N ation\xe2\x80\x99s defense. In People\no f the State o f New York ex rel. Rogers v. Graves, 299 U.S. 401 (1937), the Court reviewed a large body of legislation\ndealing with the Panama Canal. These statutes included the Act o f June 28, 1902, ch. 1302, 32 Stat. 481, which\nauthorized the President to enter into an agreement to acquire control o f a strip o f land\xe2\x80\x94 the Panam a Canal Z one\xe2\x80\x94\nfrom the Republic o f Colombia. To enact this mass o f legislation, the Court said, lay \xe2\x80\x9c within the constitutional\npower of Congress to provide for the national defense.\xe2\x80\x9d 299 U.S. at 406. Arguably, therefore, the \xe2\x80\x9c common\nDefence\xe2\x80\x9d clause also confers on Congress delegable power to authorize the President to enter into executive agreements that modify our obligations under prior arms control treaties.\n19 See also Van Der Weyde v. Ocean Transp. Co., 297 U.S. 114, 118 (1936) (Act of Congress requesting and\ndirecting President to give notice to treaty partners o f termination o f treaties inconsistent with domestic legislation\nmade it \xe2\x80\x9c incumbent upon the P resid en t. . . to reach a conclusion as to the inconsistency\xe2\x80\x9d between treaty provisions\nand domestic statute, and \xe2\x80\x9c [h]aving determined that [treaty provisions\'] termination was necessary, the Preside\nthrough the Secretary o f State took appropriate steps to effect it.\xe2\x80\x9d ).\n\n397\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nthe Postmaster General was authorized to make arrangements with\nthe postmasters in any foreign country for the reciprocal receipt\nand delivery of letters and packets, through the post-offices. . . .\nOver the years, Congress has authorized or sanctioned additional\nagreements concerning a wide variety of subjects including inter\nalia, the protection of intellectual property rights, acquisition of ter\xc2\xad\nritory, national participation in various international organizations,\nforeign trade, foreign military assistance, foreign economic assist\xc2\xad\nance, atomic energy cooperation, and international fishery rights.\nS. Rep. 53, at 52-53 (footnotes omitted). See also Seizure o f Foreign Ships on\nthe High Seas Pursuant to Special Arrangements, 4B Op. O.L.C. 406, 407 (1980)\n(\xe2\x80\x9c The President has Congress\xe2\x80\x99 express authority to enter into special arrangements\n[with foreign countries], including those that will aid the United States\xe2\x80\x99 effort\nto curtail drug traffic.\xe2\x80\x9d ); Validity o f Comm ercial Aviation Agreement, 40 Op. Att\xe2\x80\x99y\nGen. 451, 452 (1946) (Clark, A.G.) (\xe2\x80\x9c It is recognized that there are many classes\nof agreements with foreign countries which are not required to be formulated as\ntreaties . . . [including] that class of executive agreements which are entered into\nin accordance with, and within the scope of, authority vested in the executive\nbranch by legislation enacted by the Congress. Notable examples of agreements\nwhich fall within this class are postal conventions and reciprocal trade agree\xc2\xad\nments.\xe2\x80\x9d ); P ostal Conventions with Foreign Countries, 19 Op. Att\xe2\x80\x99y Gen. 513,\n520 (1890) (Taft, S.G.) (beginning with legislation of 1792, the Postmaster Gen\xc2\xad\neral, by virtue of Congressional authorization, \xe2\x80\x9c has exercised the treaty-making\npower of the Government in so far as it was necessary to the improvement of\nthe foreign mail service,\xe2\x80\x9d without obtaining the advice and consent of the Senate\nto such postal conventions). Cf. Antoine v. Washington, 420 U.S. 194, 204 (1975)\n(Court has repeatedly treated Executive agreements with Indian tribes ratified by\nlater Acts of Congress as \xe2\x80\x9c law, and like treaties, the supreme law of the land\xe2\x80\x9d ).19\nThe constitutionality of such \xe2\x80\x9c Congressional-Executive agreements\xe2\x80\x9d is firmly\nestablished. A cco rd S. Rep. 53, at 58.20 The Supreme Court long ago rejected\narguments that such agreements constitute an invalid delegation of power to the\nPresident or the House of Representatives, or an improper invasion of the Senate\xe2\x80\x99s\ntreaty-making power. See J.W. Hampton, Jr. & Co. v. United States, 276 U.S.\n394, 410-11 (1928); Field v. Clark, 143 U.S. 649, 694 (1892); see also Whether\nU ruguay Round Agreements R equired Ratification as a Treaty, 18 Op. O.L.C.\n19 A m ong earlier international agreements w hich were accomplished by Congressional-Executive agreements rather\nthan by Article II treaties were the annexation o f Texas, see Tejcas v. White, 74 U.S. (7 Wall.) 700 (1868) and\no f Hawaii, see Hawaii v. Mankichi, 190 U.S. 197 (1903). For discussion of the background o f these two annexations,\nsee Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea, 12 Op. O.L.C. 238,\n25 1 -5 2 (1988); Louis Fisher, Constitutional Conflicts between Congress and the President 227-28 (3d rev. ed. 1991).\n20 But see Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitu\xc2\xad\ntional Interpretation, 108 Harv. L. Rev. 1221, 1249-78 (1995) (defending exclusivity of Treaty Clause).\n\n398\n\n\x0cValidity o f Congressional-Executive Agreements that Substantially Modify the United States\xe2\x80\x99\nObligations Under An Existing Treaty\n\n232, 234 (1994).21 An international agreement negotiated by the President and\nconcluded with prior, or subsequent, authorization from Congress has \xe2\x80\x9c the force\nand effect of an act of Congress.\xe2\x80\x9d 2 Op. O.L.C. 227, 229 (1978).\nC.\nOf particular relevance here, the practice of the political branches underscores\nthat the President has the authority to make Congressional-Executive agreements\nwith our treaty partners that substantially modify the United States\xe2\x80\x99 rights or obli\xc2\xad\ngations under those treaties.\nCongress has enacted legislation in the political-military field that permits the\nmodification of the United States\xe2\x80\x99 international obligations through a Congres\xc2\xad\nsional-Executive agreement as an alternative to the treaty-making process. The\nArms Control and Disarmament Act of 1961, Pub. L. No. 87-297, \xc2\xa733, 75 Stat.\n634, as recently amended by Pub. L. No. 103-236, \xc2\xa7709, 108 Stat. 382, 494\n(1994) (codified in relevant part at 22 U.S.C. \xc2\xa7 2573(b)), provides that no action\nobligating the United States to reduce or limit its Armed Forces or armaments\n\xe2\x80\x9c in a militarily significant manner\xe2\x80\x9d can be taken \xe2\x80\x9c except pursuant to the treatymaking power of the President set forth in Article II, Section 2, Clause 2 of the\nConstitution o r unless authorized by the enactment o f further affirmative legisla\xc2\xad\ntion by the Congress o f the United States\xe2\x80\x99 \xe2\x80\x99 (emphasis added).22\nFurther, in a 1990 study, the Congressional Research Service identified three\nCongressional-Executive agreements since 1970 of a political-military nature; each\nof them could arguably have been adopted as a treaty instead. These were the\nInterim Agreement on the Limitation of Stategic Offensive Arms (\xe2\x80\x9c Salt I \xe2\x80\x9d ),\nsigned May 26, 1972, entered into force October 3, 1972, T.I.A.S. No. 7504, 23\nU.S.T. 3462, which President Nixon submitted to Congress for its approval by\njoint resolution, and which Congress authorized in Pub. L. No. 92-448, 86 Stat.\n21 \xe2\x80\x9c Notwithstanding that the text o f the Constitution confers no explicit authority for the making o f congressionalexecutive agreements, such agreements have been authorized frequently by Congress over the years on a wide variety\no f subjects. Similarly, the courts have been little troubled by theoretical considerations and have sustained such\nagreements largely on the basis o f the actual practice o f the political branches o f the government and the cumulative\nweight o f prior judicial decisions. Presumably, if a doctrinal basis were at this date necessary to uphold agreements\no f this type, the combined foreign affairs powers o f the Congress and the President would prove sufficient.\xe2\x80\x9d S.\nRep. 53, at 58-59.\n22 The legislative history o f section 33 o f the Arms Control and Disarmament Act indicates that neither the Senate\nnor the House o f Representatives regarded the provision as infringing on the Senate\'s treaty-making power. See\nArmen R. Vartian, Approval o f SALT Agreements by Joint Resolution o f Congress, 21 Harv. J. Int\xe2\x80\x99l L. at 44 6 47 & n.95.\nThe Senate had previously recognized that international political-military obligations could be undertaken by Act\nof Congress rather than by treaty when, in 1943, it adopted the Connally Resolution. That resolution provided that\nthe United States, \xe2\x80\x9c acting through its constitutional processes.\xe2\x80\x9d could join in an international authority w ith the\npower to prevent aggression. The resolution\'s reference to \xe2\x80\x9c constitutional processes\xe2\x80\x9d was understood to mean "th a t\ninternational commitments (in this case joining the United Nations) could be made either by treaty or by a majority\nof each House voting on a bill o r joint resolution.\xe2\x80\x9d Louis Fisher, Presidential War Power 7 4 (1995); see also\n89 Cong. Rec. 8662 (1943) (explanation o f terms used in resolution).\n\n399\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\n746, signed September 30, 1972 23; a pair of identical agreements made by Presi\xc2\xad\ndent Ford in 1975 with Egypt and Israel, under which the United States undertook\nto participate in an early-warning system in the Sinai, which Congress approved\nin Pub. L. No. 94-110, 89 Stat. 572, signed October 13, 1975, and which entered\ninto force on the same date, T.I.A.S. No. 8155, 26 U.S.T. 2271 (Israel), T.I.A.S.\nNo. 8156, 26 U.S.T. 2278 (Egypt); and a protocol signed by the United States,\nEgypt and Israel on August 3, 1981, T.I.A.S. No. 10556, 34 U.S.T. 3341, entered\ninto force August 3, 1981, and T.I.A.S. No. 10557, 34 U.S.T. 3349, entered into\nforce March 26, 1982, outlining United States participation in a Multinational\nForce and Observers unit, to function as a peacekeeping force in Sinai, for which\nPresident Reagan requested and obtained Congressional authorization in Pub. L.\nNo. 97-132, 95 Stat. 1693, signed December 29, 1981. See Ellen C. Collier &\nJames V. Satumo, Congressional Research Service, Executive Agreements Sub\xc2\xad\nm itted to Congress: Legislative Procedures U sed Since 1970 (Nov. 26, 1990).24\nCongress has also ratified, by legislation, Executive acts that substantially modi\xc2\xad\nfied pre-existing treaty (or other international) obligations. Under article 3 of the\nTreaty of Peace with Japan, Sept. 8, 1951, T.I.A.S. No. 2490, 3 U.S.T. 3169,\n3172-73, Japan was required to concur in any proposal that the United States\nmade to the United Nations for placing certain islands under trusteeship. By a\n1953 executive agreement, T.I.A.S. No. 2895, 4 U.S.T. 2912, President Eisen\xc2\xad\nhower agreed to relinquish to Japan the United States\xe2\x80\x99 rights under the Treaty\nof Peace with respect to the Amami Islands. Although it appears that no prior\nlegislative authorization for this modification of the treaty existed, Congress in\n1960 impliedly ratified the President\xe2\x80\x99s action in Pub. L. No. 86-629, 74 Stat.\n461, an Act, \xe2\x80\x9c To provide for the promotion of economic and social development\nin the Ryukyu Islands.\xe2\x80\x9d 25\nFinally, in its Resolution of Advice and Consent of 27 May 1988 to the U.S.U.S.S.R. Treaty on the Elimination of Their Intermediate-Range and ShorterRange Missiles (INF Treaty), the Senate adopted the \xe2\x80\x9c Biden condition,\xe2\x80\x9d which\n23 \xe2\x80\x9c [T]he Interim Agreement o f 1972 was by no means the fust non-treaty agreement pertaining to arms limitation\no r national security. In addition to numerous armistice agreements, the Rush-Bagot Agreement o f 1817, 8 Stat.\n231, T.S. No. 110 1/2 (1846), the \xe2\x80\x98Hot Line\xe2\x80\x99 Agreement o f 1963, 1 U.S.T. 825, T.I.A.S. No. 5362, and unwritten\nagreem ents with the Soviet U nion concerning moratoriums on nuclear testing (1958-1961) and placing nuclear weap\xc2\xad\nons in orbit (1963-1967), am ong others, w ere effected without Senate approval.\xe2\x80\x9d Armen R. Vartian, Approval o f\nSALT Agreements by Joint Resolution of Congress, 21 Harv. J. In t\xe2\x80\x99l L. at 442 n.77.\n24 In light o f such judicial and historical precedents, the Genera] Counsel to the Clerk o f the House o f Representa\xc2\xad\ntives concluded that \xe2\x80\x9c the U nited States m ay appropriately choose to negotiate an arms accord in the form o f a\nCongressional-Executive agreem ent, and approve it by legislation, as an alternative to treaty ratification.\xe2\x80\x9d Memo\xc2\xad\nrandum for the Honorable D ante B. Fascell, Chairman, House Committee on Foreign A ffairs, from Steven R. Ross,\nGeneral Counsel to the Clerk, and Charles T iefer, Deputy General Counsel to the Clerk, Re: Congressional Approval\no f an Arms Control Agreement by Legislation Rather than Treaty Ratification (May 23, 1985), reprinted in 134\nCong. Rec. 7323 (1988). See also Memorandum for Ambassador Kampelman, Counselor, from Michael J. Matheson,\nD eputy Legal A dviser, Re: Form o f submission o f arms control agreements (Apr. 14, 1988), reprinted in 134 Cong.\nRec. at 7324 ( \xe2\x80\x9c N either the [Arm s Control an d Disarmament Act] nor the Constitution dictates which o f these two\noptions the President should exercise with respect to a particular [arms control] agreement,\xe2\x80\x9d but noting that \xe2\x80\x9c [w]ith\none exception, the significant arm s control agreements o f the past few decades have all been submitted for the\nadvice and consent o f the Senate as treaties.\xe2\x80\x9d ).\n23 See 14 Marjorie M. W hiteman, Digest o f International Law \xc2\xa7 23, at 230 (1970).\n\n400\n\n\x0cValidity o f Congressional-Executive Agreements that Substantially Modify the United Stales\'\nObligations Under An Existing Treaty\n\nprovides that \xe2\x80\x9c the United States shall interpret the Treaty in accordance with the\ncommon understanding of the Treaty shared by the President and the Senate at\nthe time the Senate gave its advice and consent to ratification,\xe2\x80\x9d and that \xe2\x80\x9c the\nUnited States shall not agree to or adopt an interpretation different from that com\xc2\xad\nmon understanding except pursuant to Senate advice and consent to a subsequent\ntreaty or protocol, o r the enactment o f a statute .\xe2\x80\x9d 134 Cong. Rec. 12,849 (1988)\n(emphasis added). The Senate affirmed \xe2\x80\x9c the applicability to all treaties of the\nconstitutionally-based principles\xe2\x80\x9d in this condition. Resolution of Advice and\nConsent of 25 November 1991 to the Treaty on Conventional Armed Forces in\nEurope (CFE Treaty), 137 Cong. Rec. 34,347, 34,348 (1991), adopted id. at\n34,546. Because the Senate took the view that such \xe2\x80\x9c common understandings\xe2\x80\x9d\nof a treaty had the same binding effect as express provisions of the treaty for\npurposes of U.S. law, the Biden condition logically supports the proposition that\nthe President may be authorized to accept changes in treaty obligations either by\nfurther Senate advice and consent o r by statutory enactment.\nIn light of these judicial and historical precedents, we conclude that Congress\nmay authorize the President, through an executive agreement, substantially to\nmodify the United States\xe2\x80\x99 international obligations under an arms control (or other\npolitical-military) treaty.\nConclusion\n\nIt lies within the power of Congress to authorize the President substantially\nto modify the United States\xe2\x80\x99 domestic and international legal obligations under\na prior treaty, including an arms control treaty.\nCHRISTOPHER SCHROEDER\nActing Assistant A ttorney General\nOffice o f Legal Counsel\n\n401\n\n\x0c'


b'Admissibility of Alien Amnesty Application\nInformation in Prosecutions of Third Parties\n\nT h e c o n fid e n tia lity p ro v is io n s o f th e Im m ig ra tio n R efo rm a n d C o n tro l A c t o f 1986 g e n e ra lly b a r fe d \xc2\xad\ne ra l p ro s e c u to rs fro m in tro d u c in g in fo rm a tio n fro m a lie n a m n e sty a p p lic a tio n s as e v id e n c e in\nc rim in a l p ro s e c u tio n s o f th ird parties, b u t th e u se o f s u c h in fo rm a tio n is no t b a rre d in p ro s e c u tio n s\no f th ird p a rtie s fo r c rim e s th a t facilitate, o r a re c lo se ly re la te d to, the Filing o f a fa lse a m n e sty a p p li\xc2\xad\nc a tio n .\n\nJ u stic e D e p a rtm e n t u se o f a m n e s ty a p p lic atio n in fo rm a tio n is a lso s u b je c t to re g u la tio n s issu ed b y the\nI m m ig ra tio n a n d N a tu ra liz a tio n S ervice.\n\nT h o s e re g u la tio n s lim it s u c h use a g a in st th ird p a rtie s to\n\nth e p ro s e c u tio n o f p e rs o n s w h o have \xe2\x80\x9cc re a te d o r s u p p lie d a false w ritin g or d o c u m e n t for u se \xe2\x80\x9d in an\na m n e s ty a p p lic a tio n , w h ic h m a y include p e rso n s w h o ta k e b rib e s to ap p ro v e fa lse a m n e sty a p p li\xc2\xad\nc a tio n s\n\nD e c e m b e r 2 2 , 1993\n\nM e m o r a n d u m O p in io n f o r t h e In s p e c t o r G e n e r a l\nD e p a r t m e n t o f J u s t ic e\n\nThis memorandum responds to your request for our legal opinion on whether\nthe confidentiality provisions of 8 U.S.C. \xc2\xa7 1255a(c)(5) bar Justice Department\nprosecutors from introducing evidence consisting of information submitted as part\nof an illegal alien\xe2\x80\x99s application for amnesty in a criminal prosecution of a third\nparty (\xe2\x80\x9c(c)(5) information\xe2\x80\x9d). We conclude that (1) the introduction of such evi\xc2\xad\ndence is generally barred under the plain language of the statute but (2) it is not\nbarred by the statute in the prosecution of third parties for crimes (e.g., the accep\xc2\xad\ntance of a bribe by a government official for approving a false amnesty applica\xc2\xad\ntion) that facilitate or are closely related to the false amnesty application violations\ncovered by 8 U.S.C. \xc2\xa7 I255a(c)(6). It should also be noted that a defendant who is\nnot himself the alien whose amnesty application file is used in violation of the stat\xc2\xad\nute would not likely have standing to move for suppression of (c)(5) information.\nHowever, Justice Department use of amnesty application information is also\nsubject to a specific regulation promulgated by the Immigration and Naturalization\nService (\xe2\x80\x9cINS\xe2\x80\x9d), and that regulation limits use against third parties to the prosecu\xc2\xad\ntion of persons who have \xe2\x80\x9ccreated or supplied a false writing or document for use\nin [an amnesty application].\xe2\x80\x9d 8 C.F.R. \xc2\xa7 245a.2(t)(3), (4) (1993). We believe that\nlanguage would generally allow use of (c)(5) information to prosecute INS em\xc2\xad\nployees who take bribes to approve false amnesty applications, based on the rea\xc2\xad\nsoning that such an employee participates in the creation of falsified documents\nused in an amnesty application.\n\n172\n\n\x0cA dm issibility o f A lien A m nesty A pplication Inform ation in P rosecutions o f Third P arties\n\nI. BACKGROUND\nThe Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100\nStat. 3359 (\xe2\x80\x9cIRCA\xe2\x80\x9d), established procedures whereby certain illegal aliens could\napply for amnesty to remain in the United States and have their status adjusted to\nthat of temporary resident alien. 8 U.S.C. \xc2\xa7 1255a. In order to alleviate the con\xc2\xad\ncerns of illegal aliens that information disclosed in their applications would be used\nas a basis to prosecute or deport them, IRCA included a confidentiality provision\nstrictly limiting the Justice Department\xe2\x80\x99s access to and use of information submit\xc2\xad\nted in alien amnesty applications. 8 U.S.C. \xc2\xa7 1255a(c)(5). That provision\xe2\x80\x99s prohi\xc2\xad\nbition against the Justice Department\xe2\x80\x99s use of amnesty application information\ncontains several exceptions. For purposes of this opinion, the relevant exception\nallows Department officials to use such information \xe2\x80\x9cfor enforcement of paragraph\n(6),\xe2\x80\x9d which is a reference to 8 U.S.C. \xc2\xa7 1255a(c)(6) (\xe2\x80\x9cparagraph (6)\xe2\x80\x9d). Paragraph\n(6) provides criminal penalties for filing false or fraudulent amnesty applications,\nas follows:\nWhoever files an application for adjustment of status under this sec\xc2\xad\ntion and knowingly and willfully falsifies, misrepresents, conceals,\nor covers up a material fact or makes any false, fictitious, or frau\xc2\xad\ndulent statements or representations, or makes or uses any false\nwriting or document knowing the same to contain any false, ficti\xc2\xad\ntious, or fraudulent statement or entry, shall be fined in accordance\nwith Title 18, or imprisoned not more than five years, or both.\nAlthough the paragraph (6) exception from IRCA\xe2\x80\x99s confidentiality restriction\nclearly allows amnesty application information to be used in cases brought under\nparagraph (6) itself against aliens who file false applications, the permissibility of\nusing such information in prosecuting third parties (e.g., an INS employee or bro\xc2\xad\nker who facilitates a falsified amnesty application) under other federal statutes\n(e.g., bribery or fraud statutes, or the aiding and abetting statute) presents a more\ndifficult question. As you note in your request for our opinion, the answer to that\nquestion will affect the ability of the Inspector General\xe2\x80\x99s Office to investigate INS\nemployees who accept bribes for approving false legalization applications or mid\xc2\xad\ndlemen who knowingly facilitate them.\nII. ANALYSIS\n1. Textual Interpretation\nSince the question presented here is primarily a matter of statutory interpreta\xc2\xad\ntion, the Supreme Court\xe2\x80\x99s statement in United States v. Ron Pair Enterprises, 489\nU.S. 235, 242 (1989) sets the framework for analysis:\n173\n\n\x0cOpinions o f the O ffice o f Legal C ounsel\n\nThe plain meaning of legislation should be conclusive, except in\nthe \xe2\x80\x9crare cases [in which] the literal application o f a statute will\nproduce a result demonstrably at odds with the intentions of its\ndrafters.\xe2\x80\x9d Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571\n(1982). In such cases, the intention of the drafters, rather than the\nstrict language, controls. Ibid.\nA c co rd INS v. Cardozo-F onseca, 4 8 0 U.S. 421, 432 n. 12 (1987) (\xe2\x80\x9cplain lan\xc2\xad\n\nguage\xe2\x80\x9d is generally dispositive and resort to legislative history is warranted only to\ndeterm ine if \xe2\x80\x9cthere is \xe2\x80\x98clearly expressed legislative intention\xe2\x80\x99 contrary to that lan\xc2\xad\nguage\xe2\x80\x9d).\nIR C A \xe2\x80\x99s restriction on the Justice D epartm ent\xe2\x80\x99s use of information submitted in\nan illegal alien amnesty application is set forth in 8 U.S.C. \xc2\xa7 1255a(c)(5)\n(\xe2\x80\x9csubsection (c)(5)\xe2\x80\x9d), which provides in pertinent part:\nN either the Attorney General, nor any other official or employee of\nthe D epartm ent of Justice, or bureau or agency thereof, may \xe2\x80\x94\n(A) use the information furnished pursuant to an application filed\nunder this section for any purpose other than to make a determina\xc2\xad\ntion on the application or f o r enforcem ent o f paragraph (6) or for\nthe preparation of reports to Congress under section 404 of the Im\xc2\xad\nmigration Reform and Control Act of 1986.1\n(Em phasis added.)\nThe language of the confidentiality provision is relatively straightforward, es\xc2\xad\ntablishing a flat prohibition against the use o f application information by Justice\nD epartm ent personnel except in cases covered by the enumerated exceptions.\nH ow ever, as we discuss below in Part II.4, one federal appellate decision has\nloosely interpreted the statute to perm it disclosure of the application information\nfor general law enforcem ent purposes that clearly do not fall within the paragraph\n(6) exception.2 W e do not believe that the opinion in question can be reconciled\nwith the plain language o f the statute under the principles o f statutory interpretation\nestablished by the above-noted line of Supreme Court cases.\n\n1 T he sectio n goes on to prohibit the D epartm ent and its officials from \xe2\x80\x99\xe2\x80\x98m ak[ing] any publication\nw hereb y the inform ation furnished .\ncan b e id en tified \xe2\x80\x9d and from perm itting anyone other than the desig \xc2\xad\nnated o fficials \xe2\x80\x9cto ex am in e individual applications " 8 U .S.C. \xc2\xa7 1255a(c)(5)(B ), (C ) V iolations o f the c o n \xc2\xad\nfidentiality restrictions are m ade punishable by fines \xe2\x80\x9c in accordance w ith T itle 18\xe2\x80\x9d or im prisonm ent o f not\nm ore than five years, o r both Id \xc2\xa7 I255a(c)(5).\n2 U n ited S ta tes v H ern a n d ez, 913 F 2d 1506, 1512 (10th C ir 1990), cert, denied, 499 U S. 908 (1991)\n(hold in g that IR C A \'s confidentiality restrictions \xe2\x80\x9conly p rohibit disclosures w hich aid in the deportation o f\nillegal alien s1\').\n\n174\n\n\x0cA dm issibility o f Alien A m nesty A pplication Inform ation in Prosecutions, o f Third P arties\n\nSpecifically, subsection (c)(5) unambiguously prohibits the use of amnesty ap\xc2\xad\nplication information in a criminal prosecution brought by Justice Department at\xc2\xad\ntorneys unless that prosecution falls within the single exception provided by the\nstatute for law enforcement purposes \xe2\x80\x94 \xe2\x80\x9cenforcement of paragraph (6).\xe2\x80\x9d The in\xc2\xad\nclusion of this discrete exception indicates that Congress specifically contemplated\nthe need to allow the Department\xe2\x80\x99s use of amnesty application information in the\nlaw enforcement context and chose to permit such use only for the enforcement\npurposes specified in the text \xe2\x80\x94 i.e., enforcem ent o f the false application provi\xc2\xad\nsion. In this regard, the paragraph (6) exception falls squarely within the canon of\nstatutory construction, \xe2\x80\x9cinclusio unius est exclusio alterius.\xe2\x80\x9d See, e.g., TV A v. Hill,\n437 U.S. 153, 188 (1978) (canon applied to reject claim that enumerated excep\xc2\xad\ntions to Endangered Species Act provisions were not exclusive). The inclusion of\nthis specific exception, together with the failure to include a broader exception for\ngeneral law enforcement uses, removes any textual ambiguity from subsection\n(c)(5) as to whether \xe2\x80\x9cenforcement of paragraph (6)\xe2\x80\x9d provides the sole basis for\ndisclosures o f (c)(5) material in the law enforcement context.\n\n2. Legislative History\nAlthough the plain language of the provision would bar Department o f Justice\nofficials from disclosing (c)(5) information in matters not covered by the paragraph\n(6) exception, a more permissive interpretation might be justified if IRCA \xe2\x80\x99s confi\xc2\xad\ndentiality provision presented the \xe2\x80\x9crare case\xe2\x80\x9d in which the plain meaning o f the text\nproduces a result demonstrably at odds with the legislative intent. See G riffin , 458\nU.S. at 571. However, IRCA \xe2\x80\x99s legislative history does not reveal a legislative in\xc2\xad\ntent that is incompatible with a \xe2\x80\x9cplain meaning\xe2\x80\x9d interpretation of subsection (c)(5).\nThe Senate version of IRCA was passed in lieu of the House bill after the Sen\xc2\xad\nate language was amended to incorporate much of the text of the House bill. Con\xc2\xad\nsequently, the Report of the House Judiciary Committee has been viewed as the\nprimary source of legislative history on IRCA. See H.R. Rep. No. 99-682, pt. 1\n(1986), reprin ted in 1986 U.S.C.C.A.N. 5649 (\xe2\x80\x9cHouse Report\xe2\x80\x9d).\nThe House Report provides little specific guidance on the confidentiality provi\xc2\xad\nsions of 8 U.S.C. \xc2\xa7 1255a(c)(5). Its most pertinent and prominent passage in that\nregard3 followed a discussion of the bill\xe2\x80\x99s provision authorizing certain designated\nintermediary organizations to receive amnesty applications and forward them for\nprocessing when authorized to do so by the applicant. The Report then states:\nThe files and records kept by the organizations are confidential, and\nnot accessible to the Attorney General or any other governmental\n3\nThe referenced passage from the H ouse R eport has been the single passage o f IR C A s legislative history cited in each o f Ihe opinions we have identified discussing the confidentiality provision See U nited\nS tales v H ern a n d ez. 913 F 2d at 1512, id. at 1514-15 (M cK ay, J , dissenting), Z am brano v IN S , 972 F 2d\n1122, 1125 (9th C ir. 1992), va ca ted , 509 U.S. 918 (1993).\n\n175\n\n\x0cOpinions o f th e O ffice o f Legal C ounsel\n\nentity. The applicant must consent to the application being for\xc2\xad\nwarded for official processing. The confidentiality o f the records is\nm eant to assure applicants that the legalization process is serious,\nand not a ruse to invite undocumented aliens to come forward only\nto be snared by the INS.\nId. at 73, reprin ted in 1986 U.S.C.C.A.N. at 5677.\n\nThe R eport\xe2\x80\x99s subsequent summary of the confidentiality provision in the section-by-section analysis is even less instructive, stating, \xe2\x80\x9c[new Section 245A(c)]\n[p]rovides for the confidential treatm ent of records and files relating to . . .\n[amnesty] ap p licatio n s] and establishes a penalty for permitting unlawful access to\nsuch information. Establishes a criminal penalty for fraudulent application.\xe2\x80\x9d Id. at\n95, rep rin ted in 1986 U.S.C.C.A.N. at 5699.\nA fter the Conference Committee produced a compromise bill generally adopt\xc2\xad\ning the House version, a \xe2\x80\x9cSummary of Conference Compromise\xe2\x80\x9d that was submit\xc2\xad\nted ju st before the House vote on the C onference Report described the (c)(5)\nconfidentiality provision as follows: \xe2\x80\x9cEnsures confidentiality of records by pro\xc2\xad\nhibiting use o f information contained in an application for any purpose other than\ndeterm ining the m erits of the applications or whether fraud is involved.\xe2\x80\x9d 132\nCong. Rec. 31,632 (1986).\nIn sum, we find nothing in the H ouse Report or other pertinent legislative his\xc2\xad\ntory dem onstrating a congressional intent \xe2\x80\x9cdemonstrably at odds,\xe2\x80\x9d see Ron P a ir\nE nterprises, 489 U.S. at 242, with the plain m eaning of 8 U.S.C. \xc2\xa7 1255a(c)(5).\nIR C A \xe2\x80\x99s legislative history shows that Congress was preoccupied with the broader\nprovisions o f the bill, such as em ployer sanctions and the question of whether alien\namnesty should be authorized at all. If anything, the most pertinent portion of the\nlegislative history shows that Congress intended the confidentiality provision to\nprovide a strong assurance to illegal aliens that their amnesty applications would\nnot be used against them. An interpretation of the statute that does not permit use\nof application information for all general law enforcement purposes can hardly be\nviewed as inconsistent with that intent.\n\n3. \xe2\x80\x9cEnforcement o f Paragraph (6)\xe2\x80\x9d\nA lthough it is clear that IRCA does not allow Justice Department personnel to\nuse am nesty application information for law enforcement purposes other than\n\xe2\x80\x9cenforcem ent of paragraph (6),\xe2\x80\x9d determ ining the intended scope of that exception\npresents a m ore difficult question.\nThe question presented is whether\n\xe2\x80\x9cenforcem ent o f paragraph (6)\xe2\x80\x9d should be limited solely to actual prosecutions\nbrought under that statutory p rovision alone, or whether it can be more broadly\ninterpreted to include investigations and prosecutions of other crimes that are sub\xc2\xad\nstantially related to, or serve to facilitate, the false application violations covered\n176\n\n\x0cA dm issib ility o f A lien A m nesty Application Inform ation tn P rosecutions o f T hird P arties\n\nby paragraph (6). W e believe that the broader interpretation more accurately re\xc2\xad\nflects the meaning of the phrase \xe2\x80\x9cenforcement o f paragraph (6)\xe2\x80\x9d and the overall\nscheme of the statute.\nThe concept of \xe2\x80\x9cenforcem ent\xe2\x80\x9d is a broad one, and a given statute may be\n\xe2\x80\x9cenforced\xe2\x80\x9d by means other than criminal prosecutions brought directly under it.\nSee 2 Kenneth C. Davis, Adm inistrative Law Treatise \xc2\xa7 9:1 at 217 (2d ed. 1979);\nSEC v. P acific Bell, 704 F. Supp. 11. 14 (D.D.C. 1989) (SEC is the \xe2\x80\x9claw enforce\xc2\xad\nment agency\xe2\x80\x9d with respect to federal securities laws although it lacks the power to\nprosecute criminal violations o f those laws); B lack\xe2\x80\x99s Law D ictionary 528 (6th ed.\n1990) (defining \xe2\x80\x9cenforcem ent\xe2\x80\x9d as \xe2\x80\x9cthe carrying out of a mandate or com m and\xe2\x80\x9d).\nP ettigrew v. U nited States, 97 U.S. 385 (1878), for example, concerned an action\nbrought by the government to recover the proceeds from the defendants\xe2\x80\x99 sale o f\ntobacco that had been seized under the federal revenue laws and deposited with\nthem. Under then-existing jurisdictional statutes, the Supreme Court would have\nlacked jurisdiction over the defendants\xe2\x80\x99 writ of error unless the action being ap\xc2\xad\npealed was one brought to \xe2\x80\x9cenforce a revenue law of the United States.\xe2\x80\x9d Id. at\n386. The C ourt\xe2\x80\x99s jurisdiction was therefore challenged on the grounds that, al\xc2\xad\nthough the underlying seizure was pursuant to a revenue statute, the actual case\nwas an action to enforce a common law bailment. The Court sustained its jurisdic\xc2\xad\ntion, however, reasoning that the purpose of the action was to enforce \xe2\x80\x9cthe right\nwhich the revenue law vests in the United States to this property.\xe2\x80\x9d Id. The Court\nconcluded that \xe2\x80\x9c[i]t would be a very narrow and technical definition of the phrase\n\xe2\x80\x98enforcement of any revenue law \xe2\x80\x99 which did not recognize this action as one\nbrought for that purpose.\xe2\x80\x9d Id.\nWe believe that it would be \xe2\x80\x9cvery narrow\xe2\x80\x9d as well as overly-technical to con\xc2\xad\nstrue the expression \xe2\x80\x9cenforcem ent of paragraph (6)\xe2\x80\x9d to encompass only the prose\xc2\xad\ncution of cases under the provisions of paragraph (6) itself. A more reasonable\ninterpretation o f the expression recognizes that the government enforces the man\xc2\xad\ndate of paragraph (6) \xe2\x80\x94 the prevention and punishment of falsified or fraudulent\namnesty applications \xe2\x80\x94 through other law enforcement activities as well.4 This\nmandate may be \xe2\x80\x9cenforced\xe2\x80\x9d by a variety of enforcement activities, including the\ninvestigation and prosecution o f other federal crimes when they involve amnesty\napplication fraud: aiding and abetting such false applications, 18 U.S.C. \xc2\xa7 2;\nmaking or accepting bribes to facilitate the success of false applications, 18 U.S.C.\n\xc2\xa7 201; and mail fraud, 18 U.S.C. \xc2\xa7 1341; wire fraud, 18 U.S.C. \xc2\xa7 1343, or false\nstatement to governm ent officials, 18 U.S.C. \xc2\xa7 1001, that facilitate or are closely\nassociated with paragraph (6) violations.\n\n4\nA contrary conclusion m ight be w arranted if, for exam ple, the exception to the confidentiality requirement in \xc2\xa7 1255a(c)(5)(A ) p erm itted the use o f application inform ation only \xe2\x80\x9c for the prosecution o f violations\nof paragraph (6)" \xe2\x80\x94 language that w ould explicitly indicate a congressional intent to lim it the exception to\nthose cases specifically brought under p aragraph (6) itself\n\n177\n\n\x0cO pinions o f th e O ffice o f Legal C ounsel\n\nIf the m ore restrictive interpretation were adopted, Department officials could\nnot use such covered information fo r a wide-ranging investigation or prosecution\nof fraudulent amnesty application schem es if they were not planning a prosecution\nto be brought specifically under 8 U.S.C. \xc2\xa7 1255a(c)(6). For example, the investi\xc2\xad\ngation of a false amnesty application scheme might have produced evidence suffi\xc2\xad\ncient to prosecute an INS employee or broker who took or conveyed bribes on\nbehalf o f an illegal alien under circum stances where, for one reason or another, a\nparagraph (6) prosecution o f the alien h im self is unworkable (e.g., he is outside\nU.S. jurisdiction, deceased, or sim ply did not understand that he was filing false\ninform ation). Even though the resultant prosecution of the employee or broker\nwould not include a charge based on paragraph (6) as such, it would exalt form\nover substance to assert that such a prosecution did not contribute to the\n\xe2\x80\x9cenforcem ent o f paragraph (6).\xe2\x80\x9d\nW e think instead that Congress intended the \xe2\x80\x9cenforcement of paragraph (6)\xe2\x80\x9d\nproviso to allow the use of the covered information in any investigation or prose\xc2\xad\ncution aim ed at criminal violations that facilitate or are significantly related to false\namnesty application filings.5 Paragraph (6 )\xe2\x80\x99s broad prohibition of false amnesty\napplication filings itself evidences this intent; the prohibition cannot be fully en\xc2\xad\nforced unless those who facilitate the false filings can be prosecuted under other\nstatutes with the best available evidence.\nIn this regard, we doubt that a false application \xe2\x80\x9cfacilitator\xe2\x80\x9d would have stand\xc2\xad\ning to m ove for suppression of evidence consisting of information from the alien\namnesty application o f another person. Unlike the federal wiretap statute, for ex\xc2\xad\nample, 18 U.S.C. \xc2\xa7 2518(10)(a)(iii), IR C A \xe2\x80\x99s confidentiality provision does not\nauthorize \xe2\x80\x9caggrieved persons\xe2\x80\x9d to m ove for suppression of evidence based on the\nim proper use of (c)(5) information. Under those circumstances, the same princi\xc2\xad\nples that lim it standing to assert Fourth A m endm ent rights in a motion to suppress\nshould apply to the assertion o f statutory rights such as those established by\nIR C A \xe2\x80\x99s confidentiality provision. See, e.g., Rakas v. Illinois, 439 U.S. 128, 13338 (1978); A lderm an v. United States, 394 U.S. 165, 171-72 (1969) (\xe2\x80\x9csuppression\nof the product of a Fourth Amendment violation can be successfully urged only by\nthose whose rights were violated by the search itself, not by those who are ag\xc2\xad\ngrieved solely by the introduction o f damaging evidence\xe2\x80\x9d).\nA lderm an \'s requirements for Fourth A m endm ent standing have been held appli\xc2\xad\ncable to m otions to suppress evidence based upon statutory rights as well. U nited\nS ta tes v. G allo, 863 F.2d 185, 192 (2d Cir. 1988), cert, denied, 489 U.S. 1083\n(1989). Sim ilarly, in Wilkinson v. FBI, 99 F.R.D. 148 (C.D. Cal. 1983), the court\n5\nT h is c o n clu sio n is not contrary to the ad v ice co n tain ed in the letter sent by this O ffice to the U S. A tto r\xc2\xad\nney for the S outhern D istrict o f New York referred to in yo u r request for this opinion L etter for M ary Jo\nW hite, U S. A ttorney, Southern District o f N ew Y ork, from R ichard L. S hiffnn, D eputy A ssistant A ttorney\nG en eral, O ffice o f Legal C ounsel at 2 (A ug 12, 1993) That letter observed that the U S A tto rn e y \'s inten\xc2\xad\ntion to re d a ct in fo rm atio n reflecting (c)(5) in fo im atio n from d o cum ents to be introduced in the trial in q ues\xc2\xad\ntion w as "reaso n ab le " T he letter did not p u rp o rt to o ffer an opinion that such redaction was legally required\n\n178\n\n\x0cAdmissibility\' o f Alien A m nesty Application Inform ation in Prosecutions o f Third P arties\n\nheld that a person who was not him self identified in certain government records did\nnot have standing to assert a Privacy Act violation based on unauthorized disclo\xc2\xad\nsure of those records. As the court stated: \xe2\x80\x9cThis statute protects only those per\xc2\xad\nsons who are wrongfully identified in government records and there is no\nactionable \xe2\x80\x98derivative\xe2\x80\x99 harm claimed under 5 U.S.C. \xc2\xa7 552a.\xe2\x80\x9d Id. at 154. In light\nof these precedents, it is doubtful that defendants other than the actual aliens whose\namnesty applications are used in violation of the IRCA\xe2\x80\x99s confidentiality provision\nwould have standing to move for suppression of evidence introduced in violation\nof that provision.\n\n4. Judicial Opinions\nAlthough we have concluded that 8 U.S.C. \xc2\xa7 I255a(c)(5) would permit the use\nof application information in prosecutions of crimes significantly related to false\napplication violations, we note that the Tenth Circuit\xe2\x80\x99s opinion in U nited S tates v.\nH ernandez, see su pra note 2, would permit even wider use of such information.\nBased on the principles of statutory interpretation discussed above, we do not find\nthat opinion persuasive and would not recommend that Department prosecutors\nlook to it as a sound guide for the use o f (c)(5) information.\nIn H ernandez , a divided Tenth Circuit panel held that subsection (c)(5) did not\nbar Justice Department prosecutors from introducing evidence that the defendant\nhad applied for amnesty under IRCA in order to prove charges that the defendant\nhad illegally received firearms while an illegal alien and had made false statements\nin connection with the acquisition of firearms. In so holding, the court first re\xc2\xad\njected the lower court\xe2\x80\x99s ruling that the name of a particular applicant for amnesty\ndid not constitute \xe2\x80\x9c \xe2\x80\x98information\xe2\x80\x99 subject to the confidentiality requirem ent.\xe2\x80\x9d 913\nF.2d at 151 I. After establishing that an applicant\xe2\x80\x99s name is subject to the confi\xc2\xad\ndentiality provisions of subsection (c)(5), the court held that in enacting subsection\n(c)(5), \xe2\x80\x9cCongress sought only to prohibit disclosure of information to immigration\nauthorities in the context of deportation proceedings.\xe2\x80\x9d Id. The court went on to\nconclude:\nHowever, this concern is not implicated when the application is dis\xc2\xad\nclosed to a United States Attorney in a collateral criminal prosecu\xc2\xad\ntion in which deportation is not at issue. W e therefore conclude that\n. . . \xc2\xa7 1255a(c)(4) & (5) only prohibit disclosures which aid in the\ndeportation of illegal aliens; Congress did not intend to inhibit\nprosecutions for violations arising under the Criminal Code.\nId. at 1512.\n\n179\n\n\x0cO pinions o f the O ffice o f L eg a l C ounsel\n\nJudge M cKay dissented sharply from this conclusion. His dissent stated:\nI believe the cou rt\xe2\x80\x99s opinion conflicts with the clear, unambigu\xc2\xad\nous language o f the statute and, in addition, creates an unwarranted\nexception which does not enhance the statute but rather flies in the\nface o f its purposes. The confidentiality provision could hardly be\nmore sweeping. . . . I simply cannot torture either ambiguity or an\nexception out o f this provision.\nI\nhave never pretended to be one who would not read expan\xc2\xad\nsively a statute or precedent for either an exception or extension\nproviding it was warranted and consistent with the purposes of the\nstatute. W hat has been done here not only is inconsistent with the\npurposes o f the statute but also is flatly contradictory to its pur\xc2\xad\nposes. One can read nothing else in this statute except that it was\nintended to convey confidence that one coming forward under the\nstatute could do so in com plete confidence that information in\xc2\xad\ncluded in the application w ould be used only for the purposes for\nwhich it was filled out.\nId. at 1514 (M cKay, J., dissenting).\n\nAs pointed out in the materials accom panying your request for this opinion, the\nSolicitor General conceded that H ernan dez was wrongly decided. Brief for the\nUnited States in Opposition to Petition for W rit o f Certiorari at 7-9, H ernandez v.\nU nited S tates (1990) (No. 90-6499). Referring to the confidentiality provision of 8\nU.S.C. \xc2\xa7 1255a(c)(5), the Solicitor G eneral\xe2\x80\x99s brief stated, \xe2\x80\x9cwe believe that this\nlanguage prohibits the use of amnesty application information except for the pur\xc2\xad\nposes specifically identified in the statute.\xe2\x80\x9d Id. at 9. Aside from asserting that the\nH ernan dez court\xe2\x80\x99s interpretation o f the A ct\xe2\x80\x99s confidentiality provisions was\n\xe2\x80\x9cincorrect,\xe2\x80\x9d the B rief stressed that \xe2\x80\x9c [i]n this case, the United States Attorney did\nnot argue for the construction of the statute adopted by the court of appeals and, to\nour knowledge, the United States has not urged that construction in any context.\xe2\x80\x9d\nId. at 9 n.6.\nW e agree with the Solicitor G eneral\xe2\x80\x99s contention that H ernandez was wrongly\ndecided. W e do not believe that the text of the statute permits an interpretation that\nits confidentiality restrictions are confined to use of the information against the\napplicant alien in deportation proceedings. The statute explicitly sets forth the\nparticular exceptions that Congress contem plated and chose to permit.\nWhile\nC ongress could easily have adopted a broader exception allowing use of amnesty\ninform ation \xe2\x80\x9cfor crim inal law enforcem ent purposes,\xe2\x80\x9d it chose instead to limit the\nexception to \xe2\x80\x9cenforcem ent of paragraph (6).\xe2\x80\x9d Although a fair construction of that\nexception allows introduction o f (c)(5) information in a variety of prosecutions\n180\n\n\x0cA dm issib ility o f Alien A m nesty A pplication Inform ation m P rosecutions o f Third P arties\n\nreasonably related to false application filings, it does not permit such use in any\nand all prosecutions as long as they are outside the deportation context.\nA final noteworthy opinion construing IRC A \xe2\x80\x99s confidentiality provision is Z am \xc2\xad\nbrano v. INS, see supra note 3, which was vacated by the Supreme Court on\ngrounds other than those in issue here. Although the vacatur o f Z am brano de\xc2\xad\nprives it of precedental authority, its analysis raises a significant issue warranting\nconsideration in this context.\nIn Z am brano , the court upheld the district court\xe2\x80\x99s injunction ordering the INS to\nprovide the plaintiffs with a list of aliens whose amnesty applications were denied\nbased on allegedly invalid INS regulations. The names were sought by illegal ali\xc2\xad\nens in the context of a civil action asserting that these INS regulations were unduly\nrestrictive.\nIn holding that the (c)(5) confidentiality provision did not bar \xe2\x80\x9ccourt ordered\ndiscovery\xe2\x80\x9d of the applicant names, the court relied on the Supreme Court\xe2\x80\x99s opinion\nin St. R egis P aper Co. v. U nited States, 368 U.S. 208 (1961). In St. Regis, the\nCourt held that a confidentiality provision in the Census Act, containing language\nclosely similar to that of (c)(5), applied only to Department of Commerce officials\nand did not \xe2\x80\x9cgrant copies of the [covered Census materials] not in the hands of the\nCensus Bureau an immunity from legal process.\xe2\x80\x9d Id. at 218. Accordingly, the\nCourt held that the Federal Trade Commission (\xe2\x80\x9cFTC\xe2\x80\x9d) was entitled to obtain the\nSt. Regis C om pany\xe2\x80\x99s own copies of the reports it had submitted to the Census Bu\xc2\xad\nreau pursuant to FTC reporting requirements. The Court further stated:\nOurs is the duty to avoid a construction that would suppress other\xc2\xad\nwise competent evidence unless the statute, strictly construed, re\xc2\xad\nquires such a result. That this statute does not do. Congress did not\nprohibit the use of the reports p e r se but merely restricted their use\nwhile in the hands of those persons receiving them, i.e., the gov\xc2\xad\nernment officials.\nId.\n\nNeither St. Regis nor Zam brano contradicts our conclusion that subsection\n(c)(5) prohibits Justice Department use of amnesty application information in gen\xc2\xad\neral criminal prosecutions while allowing such use (subject to the limitations o f the\nINS regulation) in prosecuting crimes significantly related to amnesty application\nfraud. The St. R egis holding is confined to disclosure o f information in the hands\no f third parties who are not subject to statutory disclosure restrictions that, as here,\napply only to specific government officials. Z am brano \xe2\x80\x94 setting aside its vacated\nstatus \xe2\x80\x94 holds that an otherwise covered agency may disclose amnesty application\ninformation under the specific compulsion of judicial process. These opinions did\nnot address the distinct issues raised when Justice Department officials, acting on\n\n181\n\n\x0cO pinions o f th e O ffice o f L egal Counsel\n\ntheir own initiative, seek to introduce such information as evidence in certain\ncriminal prosecutions related to false application fraud.\n\n5. The INS Regulation\nUnder authority delegated by the Attorney General, see 8 U.S.C. \xc2\xa7 1103, the\nINS has prom ulgated an interpretive regulation governing access to and use of\n(c)(5) m aterial. 8 C.F.R. \xc2\xa7 245a.2(t) (1993). This regulation is binding on other\ncom ponents of the Justice Department. It prohibits the use of (c)(5) information\nfor any purpose \xe2\x80\x9cexcept: (i) to make a determ ination on the application; or, (ii) for\nthe enforcem ent of the provisions encom passed in section 245A(c)(6) of the Act,\nexcept as provided in paragraph (t)(4) of this section.\xe2\x80\x9d Id. \xc2\xa7 245a.2(t)(3).\nW e interpret the INS regulation to mean that (c)(5) information may only be\nused in prosecutions o f aliens under subsection (c)(6) itself, except in those cases\ndescribed in paragraph (t)(4) of the regulation. That paragraph authorizes INS to\nrefer cases of am nesty application falsification or fraud to the U.S. Attorney \xe2\x80\x9cfor\nprosecution of the alien o r o f any p erso n who crea ted o r su pplied a fa lse writing\no r docu m ent f o r use in an application f o r adjustm ent o f status under this p a r t.\xe2\x80\x9d 8\nC.F.R. \xc2\xa7 245a.2(t)(4) (emphasis added).\nA lthough we believe that the statute itself would allow use o f (c)(5) material in\na broader range o f situations than those authorized by the regulation, see supra Part\nII.3, the perm issible uses set forth in the regulation provide authoritative guidance\nfor Justice D epartment components unless revoked or amended. However, the\ngovernm ent\xe2\x80\x99s use of (c)(5) information in violation of the INS regulation would\nnot necessarily be subject to judicial suppression or exclusion. U nited States v.\nC aceres, 440 U.S. 741 (1979). As this Office has previously construed Caceres, in\nthe absence o f a statutory or constitutional violation, bad faith, or an element of\njustifiable reliance on an agency\xe2\x80\x99s adherence to a regulation by the complaining\nparty, a court will not exclude evidence in a criminal case solely on the ground that\nthe evidence was obtained or used in violation of agency regulations.6\nIt is not clear w hether the regulation\xe2\x80\x99s provision for the use o f (c)(5) material in\nthird party cases would authorize use in the class of cases stressed in your request\nfor opinion \xe2\x80\x94 i.e., acceptance of bribes by INS employees in return for approving\nfalse legalization applications.7 As a general proposition, we believe that it would.\nIf an INS em ployee m akes any entries, marks of approval, or verifications on an\n\n6 See M em o ran d u m for John M. H arm on, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, from\nC ass R Sunstein, A tio m ey -A d v iser, Office o f Legal C ounsel, Re: B inding Ejject oj D epartm ent o r A gencv\nG uid elin es (D ec. 19, 1980).\n7 W e think the reg u latio n w ould generally allow use o f (c)(5) inform ation in the other class o f cases\nh ig h lig h ted in y o u r request, i.e , prosecution o f "m id d lem en \xe2\x80\x9d w ho subm it false legalization applications on\nb e h a lf o f aliens Such m id d lem en would lik e ly be involved in the creation or supplying o f false docum ents\nused in the am n esty ap p licatio n , especially sin ce particip atio n in the subm ission o f a false application itself\nsh o u ld satisfy th at criteria\n\n182\n\n\x0cA dm issibility o f A lien A m nesty A pplication Inform ation in P rosecutions o f T hird P arties\n\namnesty application that he knows to be false or fraudulent, we believe he could be\ntreated as supplying or creating a false writing or document within the meaning of\nparagraph (t)(4). We also note that the INS regulation does not limit the categories\nof crimes for which (c)(5) information can be used by federal prosecutors. We\ntherefore believe that the INS regulation would allow (c)(5) information to be in\xc2\xad\ntroduced in the prosecution of an INS employee for taking an amnesty-related\nbribe as long as the bribe-taker in some way participated in the creation, supply, or\nsubmission of falsified documents (including the amnesty application itself) used in\nconnection with an amnesty application.\n\nConclusion\nAlthough 8 U.S.C. \xc2\xa7 1255a(c)(5) generally prohibits the use of information\nfrom alien amnesty applications by federal prosecutors in criminal prosecutions\nother than prosecutions for filing false amnesty applications, we believe that the\nstatute also permits the use of such information in prosecuting third parties for\ncrimes that facilitate or are closely related to false amnesty application crimes.\n\nW ALTER DELLINGER\nA ssistan t A ttorn ey G eneral\nOffice o f L egal Counsel\n\n183\n\n\x0c'