b'O ctober 20, 1977\n\n77-61\n\nMEMORANDUM OPINION FOR THE\nCOUNSEL TO THE PRESIDENT\nPresident\xe2\x80\x99s Authority To Promulgate a\nReorganization Plan Involving the Equal\nEmployment Opportunity Commission\n\nThis is in response to your request for the opinion of this Office on\ntwo questions pertaining to the President\xe2\x80\x99s authority to promulgate a\nreorganization plan involving the Equal Employment Opportunity\nCommission (EEOC). You have asked, first, whether EEOC is an\nAgency in the executive branch so as to come within the President\xe2\x80\x99s\nauthority under the Reorganization A ct of 1977; second, whether a\nreorganization plan can vest in EEO C functions which are presently\nlodged in the Department o f Labor. For the reasons that follow, we\nanswer the first question in the affirmative; your second question may\nalso be answered in the affirmative, provided certain other conditions\nof the Reorganization Act o f 1977 are met.\nEEOC as an Executive Branch Agency\nUnder the current Reorganization Act, the President may provide for\nthe transfer of functions only for present purposes, with respect to \xe2\x80\x9can\nExecutive agency or part thereof.\xe2\x80\x9d See 5 U.S.C.A. \xc2\xa7\xc2\xa7 902-3 (1977). One\nprerequisite of a transfer o f functions to EEO C is thus a determination\nthat the agency is an \xe2\x80\x9cExecutive agency.\xe2\x80\x9d We believe that there is little\ndoubt that it is such an \xe2\x80\x9cExecutive agency.\xe2\x80\x9d\nThis result can be reached by two different rationales. First, even the\nso-called independent regulatory agencies have been considered \xe2\x80\x9cEx\xc2\xad\necutive\xe2\x80\x9d agencies for purposes of the Reorganization Acts. For exam\xc2\xad\nple, even though previous such Acts have provided that reorganization\nplans could pertain only to agencies \xe2\x80\x9cin the executive branch of the\nGovernm ent,\xe2\x80\x9d see Reorganization A ct of 1949, \xc2\xa77, 63 Stat. 203, reorga\xc2\xad\nnization plans have been proposed by the President, and allowed by\nCongress, which involved the independent regulatory commissions. See\nReorganization Plan No. 3 o f 1961, 75 Stat. 837 (CAB); Reorganization\nPlan No. 4 o f 1961, 75 Stat. 838 (FTC). The fact that EEOC would\n248\n\n\x0csimilarly come within the present Reorganization A ct is demonstrated\nby a provision, enacted in 1972 with reference to a Reorganization A ct\ncontaining provisions similar to those pertinent here, which indicated\nthat a statutory transfer of functions to EEO C could be aborted by a\nreorganization plan. Equal Employment A ct of 1972, Pub. L. No. 92261, \xc2\xa7 5, 86 Stat. 107, 42 U.S.C. (Supp. V) \xc2\xa7 2000e-6(c).\nUnder this rationale, however, a reorganization plan affecting the\nEEOC could still be subject to certain restrictions if the EEO C were\ndeemed to be an \xe2\x80\x9cindependent regulatory agency.\xe2\x80\x9d See 5 U.S.C.A.\n\xc2\xa7 905(a)(1). We do not believe this to be the case. EEOC was created\nby Title V II of the Civil Rights A ct of 1964, 42 U.S.C. \xc2\xa7 2000e-4 et seq.\nIts five members are appointed by the President with the advice and\nconsent of the Senate, to staggered 5-year terms; no provision is made\nfor the removal of the members from office. E EO C \xe2\x80\x99s functions, as\ncontemplated in the 1964 Civil Rights Act, were largely to investigate\nand to conciliate.1 See 110 Cong. Rec. 7242 (1964) (remarks o f Senator\nCase); see, also, M cGriff v. A. O. Smith Corporation, 51 F.R.D. 479, 48283 (D.S. Car. 1971). Congress clearly intended that EEOC should not\nbe vested with any power to adjudicate or to issue enforcement orders.\nSee 110 Cong. Rec. 6543 (1964) (remarks of Senator Humphrey); Fekete\nv. United States Steel Corporation, 424 F. 2d 331, 336 (3rd Cir. 1970).\nMoreover, while EEOC is empowered to issue guidelines, they are not\nregarded as regulations having the force of law. See, General Electric\nCompany v. Gilbert, 97 S. Ct. 401, 410-11 (1976).\nThe lack of any quasi-adjudicatory or quasi-legislative functions\nvested in EEO C leads, in our view, to a conclusion that it is a part o f\nthe executive branch. As the Supreme Court indicated in Humphrey\xe2\x80\x99s\nExecutor v. United States, 295 U.S. 602, 624 (1935), and Wiener v.\nUnited States, 357 U.S. 349, 353-354 (1958), the inferences to be drawn\nas to congressional intent on this matter rest largely on the functions\nthat the Agency is to perform. In those cases the quasi-legislative or\nquasi-judicial functions lodged by Congress in the particular agencies\nled to a conclusion by the Court that Congress meant for the agencies\nto be independent; otherwise, the agencies could not perform their\nrequired duties free of Executive influence. The lack of such functions\nin EEO C and the consequent absence of any need to be independent of\nthe Executive suggests that Congress meant for EEOC to be subject to\nExecutive control.\nOther considerations support this result. First, it would raise serious\nconstitutional problems for an agency, shorn of any quasi-judicial or\nquasi-legislative authority, to be set apart from the Executive; it cannot\nbe assumed that Congress would lightly intend such a result. M oreover,\nthere is no provision in the 1964 Civil Rights Act for the removal of\nEEOC members for neglect of duty or malfeasance in office. Such a\n1 In 1972 Congress expanded EEO C\xe2\x80\x99s powers by allowing it to bring certain enforce\xc2\xad\nment actions. See 42 U.S.C. (Supp. V) \xc2\xa7 2000e-5.\n\n249\n\n\x0cprovision has been customarily included in statutes setting up regula\xc2\xad\ntory agencies intended to be independent of Executive control, See, e.g.,\n29 U.S.C. \xc2\xa7 153(a) (NLRB); 49 U.S.C. \xc2\xa7 1321(a)(2)(CAB), except for\nthose statutes passed in the interval between Myers v. United States, 272\nU.S. 52 (1926), and Humphrey, see 15 U.S.C. 78d (SEC); 47 U.S.C. 154\n(FCC). While Wiener v. United States, supra, held that the absence of a\nspecific provision for removal for cause does not necessarily imply that\nthe officer is subject to Executive control, the fact that such a provision\nis not contained in Title V II of the Civil Rights Act seriously weakens\nthat argument when compared to the statutes creating other regulatory\nagencies.\nThe legislative history o f the 1964 Civil Rights Act does not suggest\na contrary result. Albeit, there are references in the history which\ncould be taken to indicate a legislative belief that EEOC was to be an\nindependent Agency. For example, the House committee report states\nthat the \xe2\x80\x9cCommission will receive the usual salaries of members of\nindependent regulatory agencies.\xe2\x80\x9d H.R. Rep. No. 914, 88th Cong., 1st\nSess. 28 (1963). Senator Hum phrey also stated that the EEOC statute\nwould be a \xe2\x80\x9cdeparture from the usual statutory scheme for independent\nregulatory agencies.\xe2\x80\x9d 110 Cong. Rec. 6548 (1964). These limited re\xc2\xad\nmarks, however, do not shed any additional light on an intent that\nEE O C was to be an independent Agency. If Congress had intended this\nresult, it presumably would have so indicated more clearly and explicit\xc2\xad\nly, particularly since it must have been aware that the \xe2\x80\x9cmost reliable\nfactor\xe2\x80\x9d for drawing inferences as to independence\xe2\x80\x94that of the agency\xe2\x80\x99s\nfunctions\xe2\x80\x94would lead to a contrary conclusion. Wiener v. United\nStates, supra, at 353. In addition, it is not without significance that those\nopposed to the Civil Rights Act referred, without rebuttal, to EEO C as\npart of the executive branch. See 110 Cong. Rec. 7561, 7776, 8442\n(1964) (remarks o f Senators Thurmond, Tower, and Hill).\nW e thus conclude that EEO C is an Agency within the executive\nbranch. This conclusion is consistent with earlier opinions of this Office\nas to the status of EEOC.\nTransfer of Functions from the Department o f Labor\nThe conclusion that E E O C is subject to the President\xe2\x80\x99s authority\nunder the Reorganization A ct of 1977 is not the only condition for a\ntransfer of functions from the Department o f Labor to EEOC. One\nother prerequisite is that th e Department of Labor must be an Execu\xc2\xad\ntive agency\xe2\x80\x94which, of course, it is. Two other general substantive\nlimitations must also be m et before a transfer of functions can be\naccomplished. First, the President must find that changes in the organi\xc2\xad\nzation of agencies are necessary to carry out the policies set forth in 5\nU.S.C. \xc2\xa7 901(a); this is not so much a legal determination as it is a\npractical one. Second, a reorganization plan may not transgress the\nlimitations set forth in 5 U.S.C. \xc2\xa7 905. While some legal issues may be\n250\n\n\x0cpresented here, they can properly be analyzed only in light of the\nparticular changes which are proposed. If you desire further advice on\nthis matter, we will be happy to evaluate any plan\xe2\x80\x99s conformance to the\nprovisions in 5 U.S.C. \xc2\xa7 905.\nL eo n U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n251\n\n\x0c'


b'Statutory Authority to Contract With the\nPrivate Sector for Secure Facilities\nT h e F ederal B ureau o f Prisons has statutory authority to contract with the private se cto r for\nsecure facilities.\n\nMarch 25, 1992\nM e m o r a n d u m O p in io n f o r t h e D ir e c t o r\nF e d e r a l B u r e a u o f P r is o n s\n\nThis memorandum responds to your request for our opinion whether the\nFederal Bureau of Prisons (\xe2\x80\x9cBOP\xe2\x80\x9d) has statutory authority to contract with\nthe private sector for secure facilities.1 The General Accounting Office\n(\xe2\x80\x9cGAO\xe2\x80\x9d) has concluded that BOP lacks such authority;2 BOP has taken the\nopposite view.3 For the reasons explained below, we conclude that BOP has\nstatutory authority to contract with the private sector for secure facilities.\nI.\nBOP was established in the Department of Justice in 1930 to provide a\ncentral federal organization responsible for the care and treatment of federal\nprisoners. H.R. Rep. No. 106, 71st Cong., 2d Sess. 1 (1930). BOP has the\nauthority and responsibility under 18 U.S.C. \xc2\xa7 3621(b) to \xe2\x80\x9cdesignate the\nplace of . . . imprisonment\xe2\x80\x9d for prisoners who have been sentenced to a term\nof imprisonment under relevant federal statutes. BOP \xe2\x80\x9cmay designate any\navailable penal or correctional facility that meets minimum standards of\nhealth and habitability established by the Bureau [of Prisons], whether main\xc2\xad\ntained by the Federal Government or otherwise.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 3621(b).4\n1 S e e Memorandum for J. Michael Luttig, Assistant Attorney General, Office of Legal Counsel, from J.\nM ichael Quinlan, Director, Federal Bureau of Prisons (Apr. 26,1991) (\xe2\x80\x9cOpinion Request\xe2\x80\x9d ).\n2GAO, P rivate P risons, C o st S a vin g s a n d BO P \'s S ta tu to ry A u th o rity N e e d to b e R esolved: R e p o rt to\nthe C hairm an, Subcom m . on Regulation, B usiness O pportunities a n d Energy, H ouse C om m , on S m a ll\nB u sin ess (Feb. 1991) (\xe2\x80\x9cGAO Report\xe2\x80\x9d).\n3S e e Opinion Request at 1; Memorandum for J. Michael Quinlan, Director, from Clair A. Cripe, G en\xc2\xad\n\neral Counsel, Federal Bureau of Prisons at 4 (Oct. 14, 1988) (\xe2\x80\x9c 1988 M emorandum\xe2\x80\x9d ); Memorandum for\nNorman A. Carlson, Director, from Clair A. Cripe, General Counsel, Federal Bureau o f Prisons (June 10,\n1983), rep rin ted in P riva tiza tio n o f C orrections: H earings B efore the Subcom m . on Courts, C ivil L ib e r \xc2\xad\nties, a n d the A d m in istra tio n o f Ju stice o f the H ouse Com m , on the Ju d icia ry, 99th Cong., 1st & 2d Sess.\n150 (1985-86) (\xe2\x80\x9cPrivatization Hearing\xe2\x80\x9d).\n\xe2\x80\x98 Section 3621(b) is applicable to those convicted of offenses committed on or after November 1, 1987.\nContinued\n\n65\n\n\x0cBOP has consistently taken the position that the language of section\n3621(b) \xe2\x80\x94 especially as it refers to facilities \xe2\x80\x9cwhether maintained by the\nFederal Government or otherwise\xe2\x80\x9d \xe2\x80\x94 allows it to place federal prisoners in\nfacilities operated by the private sector as well as those run by federal, state,\nor local authorities. See Opinion Request at 1; 1988 Memorandum at 4;\nPrivatization Hearing at 150. It has relied for this conclusion on the plain\nlanguage of the statute and on general principles of federal procurement law\nunder which executive agencies may enter into contracts with the private\nsector. See Opinion Request at 1; 1988 Memorandum at 2-3; Privatization\nHearing at 149-50; Bureau o f Prisons and the U.S. Parole Commission: Over\xc2\xad\nsight Hearing Before the Subcomm. on Courts, Civil Liberties, and the\nAdministration o f Justice o f the House Comm, on the Judiciary, 99th Cong.,\n1st Sess. 16-17 (1985) (\xe2\x80\x9c1985 Hearing\xe2\x80\x9d); see also Privatization Toward More\nEffective Government: Report of the President\xe2\x80\x99s Commission on Privatization\n147 (Mar. 1988) (\xe2\x80\x9cPresident\xe2\x80\x99s Commission\xe2\x80\x9d).5\nGAO, however, has concluded that, at least as to secure facilities, the\nstatute\xe2\x80\x99s reference to facilities \xe2\x80\x9cmaintained by the Federal Government or\notherwise\xe2\x80\x9d includes only federal, state, and local facilities, but not facilities\noperated by the private sector. See GAO Report at 45-50. GAO argues that\nthere is no evidence that Congress contemplated private incarceration of\nfederal prisoners except in limited circumstances involving residential com\xc2\xad\nmunity treatment centers such as halfway houses. Id. at 48-49.6 GAO\ncontends that the authority in section 3621(b) to place prisoners in any facil\xc2\xad\nity \xe2\x80\x9cwhether maintained by the Federal Government or otherwise\xe2\x80\x9d is\n\xe2\x80\x98 (....continued)\nS e e 18 U.S.C. \xc2\xa7 3621 note. It is based on former 18 U.S.C. \xc2\xa7 4082(b), reprinted in 18 U.S.C. \xc2\xa7 4082 note,\n\nwhich governs as to offenses committed before November 1, 1987. Former section 4082(b) provided in\npart that \xe2\x80\x9c [t]he Attorney General may designate as a place o f confinement any available, suitable, and\nappropriate institution or facility, whether maintained by the Federal Government or otherwise." Refer\xc2\xad\nences to section 4082 in this memorandum should be understood to refer to former section 4082. Our\nanalysis in this m em orandum applies to the authority to designate the place o f incarceration under both\nsection 3621(b) and form er section 4082(b). References in this memorandum to the history of section\n3621(b) should be understood to include its predecessor statutes.\n5O ne writer has claimed that BOP\xe2\x80\x99s former director, Norman A. Carlson, testified to the contrary in a\n1985 H earing. S e e Ira P. Robbins, T h e Legal D im en sio n s o f P rivate Incarceration 399 n.940 (1988)\n(\xe2\x80\x9c Robbins\xe2\x80\x9d). However, Robbins quotes only a portion of Carlson\xe2\x80\x99s remarks. In context, it is plain that\nCarlson stated that he was unsure, without the benefit of advice of counsel, whether BOP could privatize\n\xe2\x80\x9cone o f the existin g 45 institutions.\xe2\x80\x9d 1985 Hearing at 17 (em phasis added). He stated unequivocally his\nview that BOP has \xe2\x80\x9cstatutory authority in [its] enabling legislation in title 18 to contract with State,\nlocal or private agencies for the care and custody of offenders. I think the enabling legislation gives us\nthat authority.\xe2\x80\x9d Id. at 16. Carlson further clarified his position in a 1986 hearing:\nAlthough I raised some question [regarding the legal authority to contract for an entire facil\xc2\xad\nity] when I testified before this subcommittee in March o f 1985, our General Counsel advises\nme that we currently have the necessary authority to contract for the management of an entire\nfacility under 18 U.S.C. \xc2\xa7 4082. This law allows the Attorney General to designate as a place\no f confinem ent \xe2\x80\x9cany available, suitable, and appropriate institution or facility, whether main\xc2\xad\ntained by the Federal Government or otherwise.\xe2\x80\x9d\nPrivatization Hearing at 141.\n6 A residential com m unity treatment center is a pre-release facility to which a prisoner may be trans\xc2\xad\nferred in order to be assisted in becoming re-established in the community. S. Rep. No. 613, 89th\nCong., 1st Sess. 7 (1965) (\xe2\x80\x9cS. Rep. No. 613\xe2\x80\x9d). Such facilities are contrasted with secure facilities used\nto house prisoners who \xe2\x80\x9cremain a distinct threat to the community." Id. at 7-8.\n\n66\n\n\x0ccircumscribed by 18 U.S.C. \xc2\xa7 4002 (authorizing the Attorney General to\ncontract for the incarceration of federal prisoners with states and localities)\nand 18 U.S.C. \xc2\xa7 4003 (permitting the Attorney General to cause new federal\nfacilities to be erected), which in GAO\xe2\x80\x99s view outline the only two options\navailable to BOP for obtaining incarceration facilities. GAO Report at 46-48.7\n\nII.\nWe begin our analysis with the language of the statute. As the Supreme\nCourt has recently said, in construing a statute the one \xe2\x80\x9ccardinal canon be\xc2\xad\nfore all others,\xe2\x80\x9d is that we must \xe2\x80\x9cpresume that a legislature says in a statute\nwhat it means and means in a statute what it says there.\xe2\x80\x9d Connecticut N at\xe2\x80\x99l\nBank v. Germain, 503 U.S. 249, 253-54 (1992). \xe2\x80\x9cWhen the words of a statute\nare unambiguous, then, this first canon is also the last: \xe2\x80\x98[the] inquiry is com\xc2\xad\nplete.\xe2\x80\x99\xe2\x80\x9d Id. at 254 (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)).\nThe plain language of section 3621(b) gives BOP open-ended authority to\nplace federal prisoners in \xe2\x80\x9cany available penal or correctional facility\xe2\x80\x9d that\nmeets minimum standards of health and habitability without regard to what\nentity operates the prison. As if to emphasize the breadth of BOP\xe2\x80\x99s author\xc2\xad\nity to use \xe2\x80\x9cany available facility,\xe2\x80\x9d Congress expressly noted that such facilities\ncould be those \xe2\x80\x9cmaintained by the Federal Government or otherwise.\xe2\x80\x9d The\nwords \xe2\x80\x9cor otherwise\xe2\x80\x9d are not qualified or defined. They are most obviously\nread to include (as the statute has already described) any penal or correc\xc2\xad\ntional facility \xe2\x80\x94 without regard to whether it is maintained by a state, local,\nor private entity \xe2\x80\x94 as long as it meets \xe2\x80\x9cminimum standards of health and\nhabitability established by the Bureau.\xe2\x80\x9d In short, there is nothing in the\nlanguage of section 3621(b) that limits BOP\xe2\x80\x99s placement authority to those\nfacilities operated by the federal government, states, or localities. Based on\nthe well-recognized canon of statutory construction referred to above, we\nbelieve that the plain language of section 3621(b) is dispositive as to BOP\xe2\x80\x99s\nauthority to place prisoners in facilities operated by the private sector.\nAlthough GAO concedes that the plain language of section 3621(b) does\nnot limit BOP\xe2\x80\x99s choice of prison operators, GAO Report at 48, GAO asserts\nthat section 3621(b)\xe2\x80\x99s legislative history establishes that Congress did not\nauthorize placing federal prisoners in private secure facilities such as are at\nissue here. It contends that\n7 Section 4002 o f title 18 provides in part:\nFor the purpose of providing suitable quarters for the safekeeping, care, and subsistence of all\npersons held under authority of any enactment o f Congress, the Attorney General may con\xc2\xad\ntract, for a period not exceeding three years, with the proper authorities of any State, Terri\xc2\xad\ntory, or political subdivision thereof, for the imprisonment, subsistence, care, and proper em \xc2\xad\nployment o f such persons.\nSection 4003 provides that if the authorities of a state, territory, or political subdivision thereof are unable\nor unwilling to enter into such contracts or \xe2\x80\x9cif there are no suitable or sufficient facilities available at\nreasonable cost, the Attorney General may select a site . . . and cause [an appropriate facility] to be\nerected "\n\n67\n\n\x0c[njothing in the legislative history of this provision suggests\nthat Congress ever contemplated having private parties oper\xc2\xad\nate adult secure facilities. Rather, it appears that Congress\xe2\x80\x99\nintention in enacting the provision concerning places of con\xc2\xad\nfinement was simply to clarify that the Attorney General would\nhave the power to choose the places prisoners would be con\xc2\xad\nfined, which at that time were limited to federal or state and\nlocal institutions.\nGAO Report at 48.\nIn light of the plain language of section 3621(b), we think GAO\xe2\x80\x99s conclu\xc2\xad\nsion that BOP lacks the authority to designate private secure facilities \xe2\x80\x94\nbised on the absence of comment on that issue in the legislative record \xe2\x80\x94 is\nan incorrect reading of the statute.8 Moreover, even if we were to rely on\ntie legislative history of section 3621(b) to determine BOP\xe2\x80\x99s authority to\nplace prisoners in privately operated facilities, we find nothing in the legis\xc2\xad\nlative history of section 3621(b) to indicate that Congress intended to preclude\nthe use of such facilities to incarcerate federal prisoners. The language now\ncontained in section 3621(b) originated in the Act of May 14, 1930, Pub. L.\nNo. 71-218, 46 Stat. 325 (\xe2\x80\x9c1930 Act\xe2\x80\x9d), and was adopted to resolve an ambi\xc2\xad\nguity as to who had the power to designate the place of confinement of\nfederal prisoners. S. Rep. No. 533, 71st Cong., 2d Sess. 2 (1930) (\xe2\x80\x9cS. Rep.\nNo. 533\xe2\x80\x9d) (statement of the Attorney General). It authorized the Attorney\nGeneral to \xe2\x80\x9cdesignate any available, suitable, and appropriate institutions,\nwhether maintained by the Federal Government or otherwise.\xe2\x80\x9d9 The lan\xc2\xad\nguage enacted in 1930 has remained substantially unchanged through its\npresent codification in 18 U.S.C. \xc2\xa7 3621(b).10 During the various reenact\xc2\xad\nments of the provision, there was never any indication that the power to\ndesignate the place of confinement was limited to designation of federal,\nstate, or local facilities. See, e.g., S. Rep. No. 225, 98th Cong., 1st Sess. 141\n8 We note that while GAO reports are often persuasive in resolving legal issues, they, like opinions of\nthe C om ptroller General, are not binding on the executive branch. S e e Memorandum for Donald B.\nAyer, D eputy Attorney G eneral, from J. M ichael Luttig, Principal Deputy Assistant Attorney General,\nOffice o f Legal Counsel at 8 (Dec. 18, 1989) (\xe2\x80\x9cThis Office has never regarded the legal opinions o f the\nC om ptroller General as binding upon the Executive.\xe2\x80\x99\xe2\x80\x99); R e im b u rse m e n t fo r D eta il o f J u d g e A d v o c a te\nG e n e ra l C o rp s P e r so n n e l to a U nited S ta te s A tto rn e y \'s O ffice, 13 Op. O.L.C. 188, 189 n.2 (1989)\n(\xe2\x80\x9cThe C om ptroller General is an officer o f the legislative branch, see B ow sher v. S yn a r, 478 U.S. 714,\n727-32 (1986), and historically, the executive branch has not considered itself bound by the C om ptrol\xc2\xad\nler G eneral\xe2\x80\x99s legal opinions if they conflict with the legal opinions o f the Attorney General and the\nOffice o f Legal Counsel.\xe2\x80\x9d ).\n\xe2\x80\x99 This language, contained in section 7 o f the 1930 Act, was originally codified at 18 U.S.C. \xc2\xa7 753f, see\n18 U.S.C. \xc2\xa7 4082 note, and was later reenacted in modified form and codified at form er 18 U.S.C. \xc2\xa7\n4082(b). S e e su p ra note 4.\n10 Form er section 4082(b) authorized the Attorney General to designate the place o f incarceration for\nfederal prisoners. Section 3621(b) gives that authority to BOP, a component o f the Justice Department.\nThe change w as not intended to affect the authority with regard to place of confinement, but rather only\nto sim plify the adm inistration o f the prison system. S. Rep. No. 225, 98th Cong., 1st Sess. 141 (1983).\n\n68\n\n\x0c(1983) (\xe2\x80\x9cThe designated penal or correctional facility need not be . . . main\xc2\xad\ntained\xe2\x80\x99 by the Federal Government.\xe2\x80\x9d).\nOn the contrary, there is evidence in the legislative history of section\n3621(b) that at least after a 1965 amendment Congress specifically antici\xc2\xad\npated that BOP would designate privately operated facilities as places of\nincarceration. In 1965 Congress amended the designation provision to allow\ndesignation of a \xe2\x80\x9cfacility\xe2\x80\x9d as well as an \xe2\x80\x9cinstitution.\xe2\x80\x9d Act of Sept. 10, 1965,\nPub. L. No. 89-176, 79 Stat. 674 (former \xc2\xa7 4082(b), reprinted in 18 U.S.C. \xc2\xa7\n4082 note). The word \xe2\x80\x9cfacility\xe2\x80\x9d was defined to \xe2\x80\x9cinclude a residential com\xc2\xad\nmunity treatment center.\xe2\x80\x9d Id. at 675 (former \xc2\xa7 4082(g), reprinted in 18\nU.S.C. \xc2\xa7 4082 note).11 The legislative history of former section 4082(g)\nindicates that by enacting that definition Congress intended that \xe2\x80\x9cfacility\xe2\x80\x9d\nwould include community treatment centers such as those already being\nused to place juvenile offenders. See S. Rep. No. 613 at 3-4. As GAO\nconcedes, GAO Report at 23, at least one of those juvenile facilities was\nbeing operated by contract with a nongovernmental entity:\nThe residential community treatment centers, to which the bill\nauthorizes the Attorney General to commit and transfer pris\xc2\xad\noners, are similar to the so-called halfway houses now operated\nby the Department of Justice for juvenile and youthful offend\xc2\xad\ners. . . .\n. . . The halfway houses are operated under different plans. . . .\nThe New York City center is operated under contract by Spring\xc2\xad\nfield University.\nS. Rep. No. 613 at 3-4 (emphasis added). According to the Senate Report,\nCongress envisioned that \xe2\x80\x9cunder the bill\xe2\x80\x99s authority to use community cen\xc2\xad\nters for older types of prisoners a similar variety o f organizational plans\nwill be adopted.\xe2\x80\x9d Id. at 4 (emphasis added).\nAccordingly, for many years BOP has, \xe2\x80\x9cwith the knowledge of Congress,\xe2\x80\x9d\ncontracted \xe2\x80\x9cfor the placement of lower security inmates in private facilities,\nparticularly contract Community Treatment Centers.\xe2\x80\x9d 1985 Hearing at 2223 (Testimony of Norman A. Carlson, Director, BOP). See also id. at 16-17\n(\xe2\x80\x9cToday we have . . . nearly 2,500 [federal] inmates who are in halfway\nhouses. . . . We contract with State, local and private agencies for this\n\n11The definition of "facility" in former section 4082(g) did not lim it application o f the term to residen\xc2\xad\ntial community treatment centers. S e e 2A Norman J. Singer, S u th e rla n d S ta tu to ry C o n stru c tio n \xc2\xa7\n47.07, at 152 (3d ed. 1992 rev.) ("Sutherland\xe2\x80\x9d) (\xe2\x80\x9c [T]he word \xe2\x80\x98includes\xe2\x80\x99 . . . conveys the conclusion that\nthere are other items includable, though not specifically enumerated.\xe2\x80\x9d). In any event, Congress deleted\nthe definition o f \xe2\x80\x9cfacility\xe2\x80\x9d when it substantially reenacted section 4082(b) in section 3621(b). Thus,\nparticularly as it appears in section 3621(b), \xe2\x80\x9cfacility\xe2\x80\x9d is not limited to residential com munity treatm ent\ncenters. We reject the suggestion to the contrary in Robbins at 412-13.\n\n69\n\n\x0cservice.\xe2\x80\x9d). As Director Carlson testified in 1986, \xe2\x80\x9c[s]ince 1981, the Bureau\nof Prisons has relied solely on the private sector to provide prerelease hous\xc2\xad\ning through its community treatment center programs.\xe2\x80\x9d Privatization Hearing\nat 132. In 1986, BOP \xe2\x80\x9ccontracted] with 330 Community Treatment Centers\n[\xe2\x80\x9cCTCs\xe2\x80\x9d], 234 of which [were] privately run. Over 3,000 Federal inmates [were]\nin these CTCs. . . . In 1984, approximately 80 percent of offenders who were\nserving sentences of over six months and who were released to the community\nwere released through contract CTCs.\xe2\x80\x9d Id. at 168 (BOP staff position paper).\nGAO apparently does not dispute BOP\xe2\x80\x99s authority to enter into private\ncontracts for residential community facilities. See generally GAO Report at\n48-49; see also Robbins at 412. GAO does not believe, however, that the\ntext and legislative history of the 1965 amendment support the conclusion\nthat Congress anticipated use of private secure facilities. It reasons that the\nAttorney General had specific statutory authority to contract for juvenile\nresidential community treatment centers. See 18 U.S.C. \xc2\xa7 5040.12 Thus, in\nGAO\xe2\x80\x99s view, the 1965 amendment does not demonstrate Congress\xe2\x80\x99s view\nthat the Attorney General already had authority to contract for private incar\xc2\xad\nceration facilities, and, at most, it provided that authority for adult residential\ncommunity facilities. See also Robbins at 400 (\xe2\x80\x9c[T]he meaning of the phrase\n\xe2\x80\x98or otherwise\xe2\x80\x99 has changed, but only to the rather limited extent of permit\xc2\xad\nting [BOP] to contract with private corporations for the confinement of federal\nprisoners in certain special facilities, such as residential community-treatment centers.\xe2\x80\x9d).13\nGAO\xe2\x80\x99s response misses the point and ignores the statute\xe2\x80\x99s plain language.\nFormer section 4082(b), as amended in 1965, gave the Attorney General the\n12Section 5040 provides in part that \xe2\x80\x9c [t]he Attorney General may contract with any public or pri\xc2\xad\nv ate agency o r in d ividual and such com m unity-based facilities as halfway houses and foster hom es\nfo r the . . . custody and care of juveniles in his custody.\xe2\x80\x9d Provisions authorizing such private contracts\nhave been in effect since 1938. See Juvenile Justice and Delinquency Act of 1974, Pub. L. No. 93-415, \xc2\xa7\n510, 88 Stat. 1109, 1138 (1974); Act o f June 16, 1938, ch. 486, \xc2\xa7 6, 52 Stat. 764,766.\n\xe2\x80\x98\xe2\x80\x99 Robbins contends that because the precursors of section 3621(b) and sections 4002 and 4003 were\nenacted together, s e e 1930 Act \xc2\xa7\xc2\xa7 3 ,4 , & 7, the \xe2\x80\x9cor otherwise\xe2\x80\x9d language of section 3621(b) can only be\ninterpreted as referring to institutions that were authorized by the precursors of sections 4002 and 4003,\ni.e., federal, state, local, or other public institutions. Robbins at 405-06. He then reasons that the 1965\nam endm ent only broadened the authority now contained in section 3621 (b) to include the power to con\xc2\xad\ntract for residential com m unity treatment centers:\nThus, although section 4082(b) w as expanded to allow the Attorney General to confine adult\nfederal prisoners in privately run facilities, Congress contemplated such action only with\nrespect to qualified pre-release prisoners in residential community-treatment centers. Con\xc2\xad\ngress did not intend the amendment to be a broad grant of authority to place adult federal\nprisoners in all types o f privately run facilities.\nId. at 412-13 (footnote omitted).\nRobbins places great w eight on the fact that the precursors o f section 3621(b) and sections 4002 and\n4003 w ere initially enacted in the sam e public law. S e e id. at 405. However, these sections subse\xc2\xad\nquently have been reenacted, amended, and recodified in separate locations in the United States Code.\nS ectio n 3621(b) is codified in subchapter C (Im prisonm ent) o f chapter 229 o f title 18, entitled\n\xe2\x80\x9cP ostsentence Adm inistration." Sections 4002 and 4003 are codified in chapter 301 o f title 18, entitled\n\xe2\x80\x9cG eneral Provisions,\xe2\x80\x9d which includes a number o f loosely-related provisions. See, e.g ., \xc2\xa7 4001 (Lim i\xc2\xad\ntation on detention; control o f prisons); \xc2\xa7 4004 (Oaths and acknowledgments); \xc2\xa7 4005 (Medical relief;\nexpenses). The m ere fact that these sections were initially enacted together, without more, does not\nrequire that they should be construed in a like manner.\n\n70\n\n\x0cauthority to place a federal prisoner in a \xe2\x80\x9cfacility\xe2\x80\x9d including, but not limited\nto, a residential community treatment center. The Senate Report indicates\nthat Congress expected the Attorney General to use the same kinds of ar\xc2\xad\nrangements for the adult residential facilities contemplated by the 1965\namendment as already existed in connection with similar facilities for juve\xc2\xad\nnile offenders, at least one of which involved a contract with a\nnongovernmental entity. S. Rep. No. 613 at 3-4 (under the \xe2\x80\x9cauthority to use\ncommunity centers for older types of prisoners a similar variety of organiza\xc2\xad\ntional plans will be adopted\xe2\x80\x9d). Yet Congress apparently saw no need to\nprovide additional authority beyond that inherent in the designation provi\xc2\xad\nsion itself to allow the Attorney General to enter into contracts with the\nprivate sector for adult facilities. This indicates that Congress believed the\nAttorney General had the authority under former section 4082(b) to enter\ninto such contracts.\nThere is, moreover, no statutory basis ih section 3621(b) for distinguish\xc2\xad\ning between residential community facilities and secure facilities. Because\nthe plain language of section 3621(b) allows BOP to designate \xe2\x80\x9cany avail\xc2\xad\nable penal or correctional facility,\xe2\x80\x9d we are unwilling to find a limitation on\nthat designation authority based on legislative history. Moreover, the subse\xc2\xad\nquent deletion of the definition of \xe2\x80\x9cfacility\xe2\x80\x9d further undermines the argument\nthat Congress intended to distinguish between residential community facili\xc2\xad\nties and other kinds of facilities. See supra note l l . 14\nIII.\nGAO also contends that the language of section 3621(b) can only be\nunderstood in conjunction with 18 U.S.C. \xc2\xa7 4002, which explicitly autho\xc2\xad\nrizes the Attorney General to contract with states and localities for the\n\xe2\x80\x9cimprisonment, subsistence, care, and proper employment\xe2\x80\x9d of federal pris\xc2\xad\noners, and 18 U.S.C. \xc2\xa7 4003, which permits the Attorney General to cause\nappropriate facilities to be erected. See supra note 7. These statutes do not\nmention contracts with the private sector. GAO argues that sections 4002\nand 4003 detail the only two courses of action the Attorney General and, by\ninference, BOP may take to provide incarceration facilities, and thus provide\na statutory limit on the otherwise broad language of section 3621(b). GAO\nReport at 47-48 & n.8. GAO invokes the maxim of expressio urtius est exclusio\nalterius15 to conclude that because Congress addressed \xe2\x80\x9ctwo courses of action\nthe federal government may use in order to obtain incarceration facilities\xe2\x80\x9d in\n14We also note that GAO\xe2\x80\x99s construction of the 1965 amendment would mean that the phrase \xe2\x80\x9cm ain\xc2\xad\ntained by the federal government or otherwise\xe2\x80\x9d would have two different meanings at the same time: it\nwould mean federal, state, or local government \xe2\x80\x9cinstitutions," but federal, state, local, o r p r iv a te \xe2\x80\x9cfacili\xc2\xad\nties."\n15 E xpressio u nius est exclusio alteriu s means \xe2\x80\x9cthe expression of one thing is the exclusion o f another.\xe2\x80\x9d\nB la c k \xe2\x80\x99s Law D ictio n a ry 581 (6th ed. 1990). Under the maxim o f expressio unius, where a \xe2\x80\x9cform o f\nconduct, the manner o f its performance and operation, and the persons and things to which it refers are\ndesignated, there is an inference that all omissions should be understood as exclusions.\xe2\x80\x9d Sutherland \xc2\xa7\n47.23, at 216 (footnotes omitted).\n\n71\n\n\x0csome detail, the \xe2\x80\x9cclear inference is that Congress intended to preclude any ar\xc2\xad\nrangement not expressly authorized\xe2\x80\x9d by those sections. Id. at 47.\nAs an initial matter, we question whether application of the expressio\nunius maxim is appropriate in these circumstances. The statutes at issue\nhere are both affirmative grants of authority. The premise of the maxim \xe2\x80\x94\nthat the expression of one thing is the exclusion of another \xe2\x80\x94 simply does\nnot apply where the expressions of limitation are set up against an addi\xc2\xad\ntional affirmative grant of authority. The maxim, it seems to us, is more\nproperly reserved for those circumstances in which the issue is whether the\nenumeration of items is exhaustive of the authority provided in the absence\nof other grants of authority. It is quite something else to apply the maxim,\nas GAO would have us do, to conclude that limitations on a particular grant\nof authority should also limit a separate grant of authority.\nWe also note that the maxim of expressio unius is not a rule of substan\xc2\xad\ntive law, but a rule of statutory cbnstruction based on \xe2\x80\x98\xe2\x80\x9c logic and common\nsense.\xe2\x80\x9d \xe2\x80\x99 Sutherland \xc2\xa7 47.24, at 228 (quoting Herbert Broom, A Selection o f\nLegal Maxims 453 (10th ed. 1939)). It embodies a \xe2\x80\x9cpresumption that . . .\nCongress intended to deny all powers not expressly enumerated\xe2\x80\x9d and it\n\xe2\x80\x9cshould be invoked only when other aids to interpretation suggest that the\nlanguage at issue was meant to be exclusive.\xe2\x80\x9d Bailey v. Federal Intermedi\xc2\xad\nate Credit Bank, 788 F.2d 498, 500 (8th Cir.) cert, denied, 479 U.S. 915\n(1986). Application of the presumption generally occurs where \xe2\x80\x98\xe2\x80\x9c there [is]\nsome evidence the legislature intended [the presumption\xe2\x80\x99s] . . . application\nlest it [should] prevail as a rule o f construction despite the reason for and\nthe spirit of the enactment.\xe2\x80\x99\xe2\x80\x9d Sutherland \xc2\xa7 47.25, at 234 (alteration in origi\xc2\xad\nnal) (quoting Columbia Hospital A ss\xe2\x80\x99n. v. City o f Milwaukee, 151 N.W.2d\n750, 754 (1967)). See also National R.R. Passenger Corp. v. National Ass\xe2\x80\x99n\no f R.R. Passengers, 414 U.S. 453, 458 (1974) (expressio unius maxim \xe2\x80\x9cmust\nyield to clear contrary evidence of legislative intent.\xe2\x80\x9d).16\nHere, the presumption suggested by the expressio unius maxim is under\xc2\xad\nmined by the fact that nothing in the text or legislative history of sections\n4002 and 4003 confirms the negative inference that Congress intended by\nthe grants of contracting authority to limit BOP\xe2\x80\x99s unqualified section 3621 (b)\npower to designate the place of incarceration of federal prisoners. Sections\n4002 and 4003, by their terms, are permissive rather than exclusive. Section\n4002 provides that the Attorney General \xe2\x80\x9cmay contract .. . with the proper\nauthorities of any State, Territory, or political subdivision thereof\xe2\x80\x99 in order\nto \xe2\x80\x9cprovid[e] suitable quarters for the safekeeping, care, and subsistence\xe2\x80\x9d of\n\xe2\x80\x9c T his Office has noted on numerous occasions that \xe2\x80\x9c[i]n attempting to assess congressional intent, the\ne x p re ssio u n iu s m axim m ay serve as a guide to that intent, but it is inconclusive. Other factors, including\n\n. . . the nature o f the legislation, and the legislative history, must also be considered in the effort to discern\ncongressional intent.\xe2\x80\x9d A pplicability o f C erta in C ross-C utting S tatutes to B lock G rants U nder the O m n i\xc2\xad\nb u s B u d g e t R e c o n c ilia tio n A c t o f 1981 , 6 Op. O.L.C. 83,105 (1982)(footnote omitted). See a lso P aper\xc2\xad\nw o rk R e d u c tio n A c t o f 1 9 8 0 , 6 Op. O .L .C . 388, 407 (1982) (\xe2\x80\x9cThe application o f the [expressio u n iu s]\nm axim is m ore persuasive when the language of the statute, its legislative history, and other factors point\nto the sam e result.\xe2\x80\x9d ).\n\n72\n\n\x0cfederal prisoners. Id. (emphasis added). Alternatively, under section 4003\nthe Attorney General \xe2\x80\x9cmay . . . cause to be erected\xe2\x80\x9d a suitable federal facil\xc2\xad\nity. Id. (emphasis added). Nothing in these sections or anywhere else in\nBOP\xe2\x80\x99s enabling legislation could be said to prohibit contracting with the\nprivate sector or to establish statutory requirements that would be at vari\xc2\xad\nance with such private contracts.\nThe legislative history of sections 4002 and 4003 indicates that these\nprovisions were enacted specifically to address particular problems in con\xc2\xad\nnection with the incarceration of federal prisoners in state and local facilities.\nSections 4002 and 4003 were enacted in response to a shortage of prison\nspace for federal prisoners and the lack of a central administrative organiza\xc2\xad\ntion to oversee the disposition of such prisoners. See S. Rep. No. 533 at 2\n(statement of the Attorney General). Although the federal government was\nalready relying heavily on state and local facilities for the incarceration of\nfederal prisoners, it was \xe2\x80\x9cpowerless to remedy the deplorable conditions of\nfilth, contamination, and idleness which [were] present in most of the anti\xc2\xad\nquated jails of the country\xe2\x80\x9d and was \xe2\x80\x9cobliged to pay the States the rates they\ncharge[d] for boarding Federal prisoners, even though they may be exorbi\xc2\xad\ntant.\xe2\x80\x9d Id.\nIn response, section 3 of the 1930 Act, the precursor to section 4002,\nplaced specific limitations and requirements on contracts with states and\nlocal governments. Section 4 of the 1930 Act, now substantially contained\nin section 4003, was enacted because emergency conditions and the large\nnumber of federal prisoners in certain districts made it desirable for the\nDepartment of Justice to have the authority to provide prisons of its own.\nSee S. Rep. No. 533 at 3. Because these provisions were enacted to address\nspecific circumstances involving the incarceration of federal prisoners in\nfederal, state, and local facilities, Congress\xe2\x80\x99s failure to address contracts\nwith the private sector is not surprising, and does not reflect an intention to\nprohibit such contracts.17\nThe expressio unius argument is further undermined because BOP does\nnot, as a general matter of federal contracting law, need specific statutory\nauthorization to contract with the private sector. The general rule is that an\nagency may use contracts with the private sector to carry out its statutory\nmission as long as the contract is not \xe2\x80\x9cspecifically prohibited by statute\xe2\x80\x9d or\n\xe2\x80\x9cat variance with required statutory provisions or procedures.\xe2\x80\x9d 1 Ralph C.\nNash, Jr. & John Cibinic, Jr., Federal Procurement Law 5, 10 (1977) (\xe2\x80\x9cNash\n& Cibinic\xe2\x80\x9d). As these commentators have explained:\n\xe2\x80\x99\xe2\x80\x99 The argument that the Bureau\xe2\x80\x99s 3621(b) designation power is limited by the options spelled out in\nsections 4002 and 4003 is also undermined by several provisions in BO P\xe2\x80\x99s enabling legislation that\nauthorize other permissible places of prisoner incarceration. Section 4125(b) of title 18 authorizes the\nAttorney General to \xe2\x80\x9cestablish, equip, and maintain [work] camps upon sites selected by him . . . and\ndesignate such cam ps as places for confinement of persons convicted o f \xe2\x80\x99 federal offenses. In addition,\nthe Attorney General may use inactive Department of Defense facilities as prisons. Department of\nJustice Appropriation Authorization Act, Fiscal Year 1979, Pub. L. No. 95-624, \xc2\xa7 9, 92 Stat. 3459,\n3463 (1978), rep rin ted in 18 U.S C. \xc2\xa7 4001 note. Thus, sections 4002 and 4003 do not in fact contain\nall the options available to the Attorney General in designating places of incarceration.\n\n73\n\n\x0cThe authority of the executive to use contracts in carrying out\nauthorized programs is . . . generally assumed in the absence\nof express statutory prohibitions or limitations. Some statutes\ncontain specific authorization to use contracts, others are si\xc2\xad\nlent on the matter and, in some very rare cases, statutes require\nthe use of contracts. However, the executive agencies nor\xc2\xad\nmally have the discretion to decide whether to accomplish\ntheir objectives by contract or through the use of Government\nemployees.\nId. at 5. The courts have recognized that government agencies have broad\ndiscretionary powers in carrying out their functions, including the authority\nto contract for services when it is determined to be in the agency\xe2\x80\x99s interest.\nSee, e.g.. Local 2017, AFGE v. Brown, 680 F.2d 722 (11th Cir. 1982) cert,\ndenied, 459 U.S. 1104 (1983); Local 2855, AFGE v. United States, 602 F.2d\n574 (3d Cir. 1979). Thus, the power of an agency to contract for services is\nnot dependent on specific authority to enter into such contracts. See Memo\xc2\xad\nrandum for Clair A. Cripe, General Counsel, Federal Bureau of Prisons,\nfrom Ralph Tarr, Deputy Assistant Attorney General, Office of Legal Coun\xc2\xad\nsel (Dec. 30, 1982).18\nIt is well established that BOP has authority to contract with the private\nsector for various services in connection with incarceration facilities. See\nOpinion Request (citing 40 U.S.C. \xc2\xa7 471; 41 U.S.C. \xc2\xa7 252(a); 48 C.F.R. \xc2\xa7\xc2\xa7\n1.101, 2.101); Privatization Hearing at 132-33, 170-72. For example, BOP\nhas entered into private contracts for food service and medical, educational,\nand psychological services, and for consulting and other services in connec\xc2\xad\ntion with Federal Prison Industries. Privatization Hearing at 132-33, 170-72.\nSee also President\xe2\x80\x99s Commission at 147 (\xe2\x80\x9cContracting for services and\nnonsecure facilities is a common practice in the field of corrections. Virtu\xc2\xad\nally all the individual components of corrections (such as food services,\nmedical services and counseling, educational and vocational training, recre\xc2\xad\nation, maintenance, transportation, security and industrial programs) have\nbeen provided by private contractors.\xe2\x80\x9d).\nGAO claims that it does not dispute BOP\xe2\x80\x99s authority generally to contract\nwith the private sector for goods and services. See GAO Report at 50 (\xe2\x80\x9cAs a\ngeneral proposition, an agency may use contracts to carry out any activity\n18 We do not suggest that there are no limitations on the authority of a governmental entity to contract\nfor goods or services. For example, a governmental entity may not enter into a contract that is specifi\xc2\xad\ncally prohibited by statute or that is at variance with statutory provisions or procedures. S e e 1 Nash &\nC ibinic at 10. In addition, some functions are considered to be inherently governmental in nature and\nm ay not be delegated to nongovernmental entities. S e e OMB Circular A-76 (Aug. 4, 1983). This\nm em orandum also does not address possible constitutional limitations on contracting. S e e gen era lly\nC o n stitu tio n a l L im n s on "C ontracting O u t" D ep a rtm en t o f Ju stice F unctions U nder O M B C ircular A76, 14 Op. O.L.C. 94 (1990). We are, o f course, available to consult with you or your staff as to consti\xc2\xad\ntutional issues that might arise in connection with contracts with the private sector for prison facilities.\n\n74\n\n\x0cthat the agency is authorized to perform under its enabling legislation or\nother statutory provision without a specific grant of contracting authority\xe2\x80\x9d).\nRather, GAO contends that contracting with the private sector for incarcera\xc2\xad\ntion facilities would be \xe2\x80\x9cinconsistent with the statutory scheme,\xe2\x80\x9d which\n\xe2\x80\x9cdescribes with specificity the courses of action the government may use to\nobtain incarceration facilities.\xe2\x80\x9d Id. See generally 1 Nash & Cibinic at 10\n(governmental entity may not enter into a \xe2\x80\x9ccontract which is specifically\nprohibited by statute, or at variance with required statutory provisions or\nprocedures\xe2\x80\x9d). GAO\xe2\x80\x99s argument proves too much. Section 4002 states that\n\xe2\x80\x9cthe Attorney General may contract . . . with the proper authorities of any\nState, Territory, or political subdivision thereof, for imprisonment, subsis\xc2\xad\ntence, care, and proper employment of such persons." Id. (emphasis added).\nTo the extent GAO believes that contracting for private incarceration facili\xc2\xad\nties would be inconsistent with section 4002, private contracting for other\nitems involving the subsistence and care of prisoners would call into ques\xc2\xad\ntion BOP\xe2\x80\x99s well-established authority, apparently not questioned by Congress,\nto enter into contracts with the private sector for food service, clothing, and\nother goods and services.\nMore fundamentally, we disagree with GAO\xe2\x80\x99s assertion that private con\xc2\xad\ntracts for incarceration of federal prisoners would be \xe2\x80\x9cinconsistent with the\nstatutory scheme.\xe2\x80\x9d GAO Report at 50. As we have previously explained,\nsee supra pp. 67-70, 72-73, nothing in the text or legislative history of sec\xc2\xad\ntion 3621(b) or sections 4002 and 4003 indicates that Congress intended to\nprohibit such contracts. Given the broad and unlimited designation authority\ncontained in section 3621(b), we cannot conclude that private contracts would\n\xe2\x80\x9cconflict with the statutory scheme\xe2\x80\x9d based on the grants of authority con\xc2\xad\ntained in sections 4002 and 4003 and Congress\xe2\x80\x99 purported silence concerning\nprivate contracts.19\n\n19 We also reject GAO\'s contention that our interpretation of section 3621(b) is undercut by certain\nother statutes that explicitly authorize the use of private facilities for confinement. GAO Report at 4950 (citing 18 U.S.C. \xc2\xa7\xc2\xa7 4013(a)(3) and 5040). The weakness of the argument can be seen by applying\nit consistently to 18 U.S.C. \xc2\xa7 4013.\nSection 4013(a) authorizes the Attorney General to make payments from appropriated funds:\n[in] support of United States prisoners [in non-Federal institutions] for \xe2\x80\x94\n(1) necessary clothing;\n(2) medical care and necessary guard hire;\n(3) the housing, care, and security o f persons held in custody of a United States m ar\xc2\xad\nshal . . . under agreements with State or local units o f government or con tra cts w ith\np riva te e n titie s ;\n(emphasis added). GAO argues that section 4013(a)(3)\xe2\x80\x99s reference to private contracts for prisoner incar\xc2\xad\nceration indicates that when Congress intended to allow private contracting it did so explicitly. Again,\nGA O\xe2\x80\x99s argument proves too much. It would preclude private contracting for clothing, medical care, and\nsecurity because subsections (a)(1) and (a)(2) do not explicitly permit private contracts as com pared to\nsubsection (a)(3). That would again call into question the Bureau\xe2\x80\x99s well-established authority to contract\nwith the private sector for such items. See supra p. 74.\n\n75\n\n\x0cConclusion\nFor the foregoing reasons, we conclude that the Bureau of Prisons has the\nstatutory authority to contract with the private sector for secure facilities.\nTIMOTHY E. FLANIGAN\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n76\n\n\x0c'


b"March 16, 1978\n\n78-17\n\nMEMORANDUM OPINION FOR THE\nACTING DIRECTOR, OFFICE OF\nMANAGEMENT AND BUDGET\nReorganization Plan No. 1 of 1978\xe2\x80\x94 Equal\nEmployment Opportunity Commission\xe2\x80\x94\nTransfer of Function\n\nThis responds to your request for our opinion concerning two legal questions\nraised by \xc2\xa7 3(b) o f Reorganization Plan No. J o f 1978, 14 Weekly Comp. Pres.\nDoc. 398, 43 F.R. 19807.\nUnder \xc2\xa7 3(a) of the Plan, the responsibility for enforcement of equal\nopportunity in Federal em ploym ent, presently lodged in the Civil Service\nCommission (CSC), would be transferred to the Equal Employment Opportu\xc2\xad\nnity Commission (EEOC), an executive branch agen cy.1 Section 3(b) o f the\nPlan would em power the EEOC to delegate to the CSC or a successor agency\n\xe2\x80\x9c the function of making a preliminary determination on the issue o f discrim ina\xc2\xad\ntion,\xe2\x80\x9d whenever a Federal employee has alleged in a proceeding before the\nEEOC that his rights under \xc2\xa7 717 of the Civil Rights Act of 1964 have been\nviolated.2 Your questions arise because it is contemplated that the C SC \xe2\x80\x99s\nsuccessor agency for these purposes would be an independent regulatory\nagency exercising quasi-judicial powers whose members would not serve at the\npleasure of the President.\nThe first question is whether the independence o f this successor agency\nwould be affected by the transfer to it of the responsibility for making a\npreliminary determination of the merits of a Federal em ployee\xe2\x80\x99s allegation. The\ntask of making such determinations is purely adjudicatory. Under the rationale\nof the most recent Supreme Court decisions dealing with this general question,\n'T h is o ffice has tak en th e p o sitio n , m o st recen tly in o u r le tte r to you o f F e b ru a ry 7 . 1978, that\nc o m m issio n e rs o f the E E O C serv e at th e p le a su re o f (he P resid en t and that the A g e n c y is an,\ne x ec u tiv e \xe2\x80\x94 as o p p o sed to an in d e p e n d en t re g u la to ry \xe2\x80\x94 a g en cy .\n2(b) T h e E qual E m p lo y m en t O p p o rtu n ity C o m m issio n m ay d e le g ate to the C ivil S e rv ic e\nC o m m issio n o r its s u c c e sso r the fu n c tio n o f m a k in g a p re lim in a ry d e te rm in a tio n on the issu e o f\nd iscrim in a tio n w h e n e v e r, as a part o f a c o m p la in t o r ap p eal b efo re the C ivil S e rv ic e C o m m issio n on\no th e r g ro u n d s, a F ed eral e m p lo y e e a lle g es a v io la tio n o f \xc2\xa7 7 1 7 o f th e C ivil R ig h ts A ct o f 1964. as\na m ended (42 U.S.C. 2 0 0 0 e -1 6 ), p ro v id e d that th e E qual E m p lo y m en t O p p o rtu n ity C o m m issio n\nretains the fu n c tio n o f m a k in g th e final d e te rm in a tio n .\n\n69\n\n\x0cassignment o f an adjudicatory function to an agency then recognized to be\n\xe2\x80\x9c independent\xe2\x80\x9d would not alter its independent status in any way. Cf., Wiener\nv. United States, 357 U.S. 349 (1958). We see no basis for a different\nconclusion h ere.3\nThe second question is whether limiting the successor agency to making a\npreliminary determination on the merits o f the em ployee\xe2\x80\x99s allegation while\nretaining in the EEOC the \xe2\x80\x9c function of making the final determination\nconcerning such issue o f discrim ination . . . \xe2\x80\x9d would affect the independence of\nthe successor agency. In other words, does the placement of power in an\nexecutive agency to review and overturn a preliminary decision reached by an\nindependent agency impinge on the independent status of the latter? We think\nthe answer to this question is \xe2\x80\x9c n o .\xe2\x80\x9d\nThe proposition that executive agencies may be empowered by Congress to\nreview and adopt or overturn decisions made by \xe2\x80\x9c independent\xe2\x80\x9d agencies or\nhearing examiners without affecting the independent status of either is well\nestablished. For exam ple, the President is authorized by statute to review and\nreverse certain decisions made by the Civil Aeronautics Board; yet we have no\ndoubt that members of that Board may be removed only for cause under 49\nU .S.C . \xc2\xa7 1321. More recently, Congress has given the Secretary of Energy the\npower to implement or reject certain regulatory actions formulated by the\nFederal Energy Regulatory Com m ission, an independent agency.4 The confer\xc2\xad\nence report indicates that Congress believed that such review power in the\nSecretary would not affect the independent status of the Commission. See H.\nRept. No. 539, 95th C ong., 1st sess., at 78 (1977).\nGiven the adjudicatory nature of the decisions to be reviewed by the EEOC\nunder \xc2\xa7 3(b), we think the history of the use of independent administrative law\njudges and hearing exam iners under the Administrative Procedure Act (APA)\nof 1946 supports our position. Under \xc2\xa7 11 of that A ct,5 these officers were\nspecifically made \xe2\x80\x9c independent . . . in their tenure and com pensation.\xe2\x80\x9d 6 One\nof the major functions performed by administrative law judges is to preside\nover formal APA proceedings, 5 U .S.C . \xc2\xa7 556(c), and then to make the initial\ndecision or recomm endation regarding the disposition of the matter before\nthem, 5 U .S.C . \xc2\xa7\xc2\xa7 554(d) and 557(b). This decision may then be reviewed by\nthe agency, often an executive agency, which has \xe2\x80\x9c all the powers which it\nwould have in making the initial decision . . . . \xe2\x80\x9d 5 U .S.C . \xc2\xa7 557(b).\nThus, to conclude that EEOC review o f preliminary decisions made by a\nsuccessor agency pursuant to \xc2\xa7 3(b) of the Plan would jeopardize the independ\xc2\xad\nence o f the latter agency would cast grave doubt on the principle under which\n\n3W e d re w th e sam e c o n c lu sio n w ith re g a rd to th is q u e stio n in o u r m e m o ra n d u m to W . H arriso n\nW ellfo rd o f F e b ru a ry 2 3 , 1978.\n4D e p artm e n t o f E n e rg y O rg a n iz a tio n A c t, \xc2\xa7 4 0 2 (c ), P u b . L. N o. 9 5 -9 1 , 91 S tat. 565.\n5S e c tio n II is n o w c o d ifie d in v a rio u s s e c tio n s o f 5 U .S .C ., n a m e ly , \xc2\xa7\xc2\xa7 1305, 3 1 0 5 , 33 4 4 ,\n4 3 0 K 2 X E ), 5 3 6 2 , an d 7 5 2 1 .\n6A d m in istra tiv e P ro ce d u re A ct\xe2\x80\x94 L e g isla tiv e H is to ry , S. D o c. N o. 2 4 8 , 7 9th C o n g ., 2d s e s s ., at\n215 (1 9 4 6 ).\n\n70\n\n\x0cadministrative law judges and similar hearing officers have performed equiva\xc2\xad\nlent adjudicatory functions for more than three decades during which their\nindependence has never been doubted, although subject to administrative\nreview.\nThus, we conclude that the delegation under \xc2\xa7 3(b) of the Plan will not raise\nquestions as to the independent status of the CSC successor agency.\nJo h n M . H a r m o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n71\n\n\x0c"


b'Authority for Issuing Hatch Act Regulations\n\nT h e O ffice o f P e rs o n n e l M an a g e m e n t, ra th e r th an th e O ffic e o f S p e c ia l C o u n se l, has th e a u th o rity to\np ro m u lg ate re g u la tio n s d e lim itin g th e sco p e a n d n a tu re o f p e rm is sib le a c tiv itie s u n d e r the H atch\nA c t R efo rm A m e n d m e n ts o f 1993.\n\nFebruary 2, 1994\nM e m o r a n d u m O p i n i o n f o r t h e D e p u t y S p e c ia l C o u n s e l\nO f f ic e o f S p e c i a l C o u n s e l\n\nYou have asked whether the Office of Personnel M anagement (\xe2\x80\x9cO PM \xe2\x80\x9d) or the\nOffice of Special Counsel (\xe2\x80\x9cO SC\xe2\x80\x9d) has the authority to promulgate regulations\ndelimiting the scope and nature of impermissible political activities under the\nHatch Act Reform Amendments of 1993 (\xe2\x80\x9cHatch Act Amendments\xe2\x80\x9d), Pub. L. No.\n103-94, sec. 2(a), \xc2\xa7\xc2\xa7 7321-7326, 107 Stat. 1001, 1001-1004.\' OPM contends that\nOSC has plenary authority to issue Hatch Act regulations, whereas OPM is em \xc2\xad\npowered to promulgate Hatch Act regulations only on two narrowly-defined sub\xc2\xad\njects.2 OSC, on the other hand, asserts that it lacks authority to promulgate Hatch\nAct regulations. It contends that OPM historically has been responsible for issuing\ngeneral Hatch Act regulations and that no provision in the Hatch Act Amendments\nhas reassigned or diminished O PM \xe2\x80\x99s responsibility in this regard. After examining\nexisting precedent, the statutes outlining the responsibilities of OPM and OSC for\nimplementing the Hatch Act, and the text and legislative history of the Hatch Act\nAmendments, we conclude that OPM possesses the authority to promulgate regu\xc2\xad\nlations explicating the Hatch Act as amended.\n\nI. The Need fo r Revised Hatch A ct Regulations\nFor more than fifty years, the Hatch Act prohibited federal workers from par\xc2\xad\nticipating in a broad range o f political activities. See U nited Pub. W orkers v.\nM itchell, 330 U.S. 75, 78-79 (1947); see also U nited States C ivil Serv. C o m m \xe2\x80\x99n v.\nN ational A s s \xe2\x80\x99n o f L etter Carriers, AFL-CIO , 413 U.S. 548 (1973) (upholding\nHatch Act provision forbidding federal em ployees to take an active part in political\nmanagement or political campaigns). In 1993, however, Congress eliminated\nmany of the restrictions that had previously cabined the political activities o f fed\xc2\xad\neral employees. See Hatch Act Amendments, Pub. L. No. 103-94, 107 Stat. 1001\n\n1\nLetter for W alter D ellinger, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, from Jam es A Kahl,\nD eputy Special C ounsel, U S O ffice o f Special C ounsel (D ec. 28, 1993)\n" The position o f O PM is set forth in a letter for W alter D ellinger, A ssistant A ttorney G eneral, O ffice of\nLegal C ounsel, from Lorraine Lew is, G eneral C ounsel, O ffice o f Personnel M anagem ent (Jan 28, 1994).\n\n1\n\n\x0cO pinions o f the O ffice o f L egal C ounsel\n\n(1993). Despite the steps taken by C ongress to liberalize the rules governing the\npolitical conduct o f federal workers, som e political activities remain generally im\xc2\xad\nperm issible for all federal employees, see, e.g., id. sec. 2(a), \xc2\xa7 7323(a)(2), 107\nStat. at 1002 (prohibiting federal employees from soliciting, accepting, or receiving\npolitical contributions), and some federal em ployees must continue to observe\nstringent lim itations upon involvement in the political process. See, e.g., id sec.\n2(a), \xc2\xa7 7323(b)(3), 107 Stat. at 1003 (\xe2\x80\x9cNo employee of the Criminal Division of\nthe D epartm ent o f Justice . . . may take an active part in political managem ent or\npolitical cam paigns.\xe2\x80\x9d). If a federal employee violates any o f these provisions,\nwhich will take effect on February 3, 1994, the employee \xe2\x80\x9cshall be removed from\nhis position.\xe2\x80\x9d I d sec. 2(a), \xc2\xa7 7326, 107 Stat. at 1004. Accordingly, federal em \xc2\xad\nployees who wish to participate in political activities need immediate guidance in\nthe form o f regulations distinguishing permissible political conduct from impermis\xc2\xad\nsible activities.3\n\nII. The Division of Hatch Act Regulatory Responsibility\nUntil 1978, the Civil Service Commission bore the entire burden of adm inister\xc2\xad\ning the H atch Act.\nS. Rep. No. 103-57, at 4 (1993), reprin ted in 1993\nU .S.C.C.A .N . 1802, 1805. But in passing the Civil Service Reform Act of 1978,\nPub. L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections o f 5\nU.S.C.) (\xe2\x80\x9cCivil Service Reform Act\xe2\x80\x9d), Congress divided the responsibility for im\xc2\xad\nplem enting the Hatch A ct into three discrete tasks: the M erit Systems Protection\nBoard (\xe2\x80\x9cM SPB \xe2\x80\x9d) was \xe2\x80\x9ccharged with adjudicating Hatch Act cases,\xe2\x80\x9d OPM became\n\xe2\x80\x9cresponsible for prom ulgating Hatch Act regulations,\xe2\x80\x9d and OSC received the\nauthority \xe2\x80\x9cto investigate allegations o f Hatch Act violations and present them to the\nM SPB .\xe2\x80\x9d A m erican F ed\'n o f G ov\xe2\x80\x99t E m ployees, AF L-C IO v. O \xe2\x80\x99Connor, 747 F.2d\n748, 753 (D.C. Cir. 1984) (footnotes omitted), cert, denied, 474 U.S. 909 (1985);\nsee a lso S. Rep. No. 95-969, at 24 (1978), reprin ted in 1978 U.S.C.C.A.N. 2723,\n2746. In 1989, Congress refined this division of authority by formally separating\nOSC from the M SPB and independently enum erating the powers and functions of\nOSC.4 See W histleblow er Protection Act of 1989, Pub. L. No. 101-12, \xc2\xa7\xc2\xa7\n3(a)(l 1) - ( l 3), 103 Stat. 16, 19-21 (adding 5 U.S.C. \xc2\xa7\xc2\xa7 1211-1212, which\n\xe2\x80\x9cestablished the O ffice o f Special Counsel\xe2\x80\x9d as an independent body and set forth\nthe pow ers and functions o f the Office of Special Counsel).\n3 In a Jan u a ry 13, 1994, letter concerning Lhe d isp u te at hand. R epresentative W illiam L C lay and Senator\nJo h n G len n m ade p recisely this p o in t1 \xe2\x80\x9cGiven th e dire co n seq u en ces that can result to em ployees w ho vio\xc2\xad\nlate the H atch A ct, in o u r view it is imperative that Federal e m p loyees be provided tim ely guidance as to\nw hat c o n stitu tes p erm issib le and im perm issible political activ ity .\xe2\x80\x9d L etter for W alter D ellinger, A ssistant\nA ttorney G en eral, O ffice o f Legal Counsel, from W illiam L C lay, C hairm an, C om m ittee on Post O ffice and\nC ivil S ervice, an d John G len n , C h airm an , C o m m ittee on G o v ern m ental A ffairs (Jan. 13, 1994)\n4 T he C iv il Service R efo rm A ct o f 1978 pro v id ed for a \xe2\x80\x9c Special C ounsel o f the M em System s Protection\nB o ard " w h o se po w ers w ere d efin ed in conjunction w ith those o f the M SPB See C ivil Service R eform Act,\nsec. 202 (a), \xc2\xa7\xc2\xa7 1204-1208, 92 Stat. at 1122-30\n\n2\n\n\x0cA uthority f o r Issuing Hatch A ct R egulations\n\nThe three-way division of Hatch Act authority now flows from clear statutory\npronouncements. See 5 U.S.C. \xc2\xa7 1204 (defining powers and functions of the\nMSPB); 5 U.S.C. \xc2\xa7 1212 (setting forth powers and functions of OSC); 5 U.S.C. \xc2\xa7\n1103 (prescribing functions o f director of OPM). Specifically, the MSPB has\nauthority to hear and adjudicate \xe2\x80\x9call matters within the jurisdiction o f the Board,\xe2\x80\x9d 5\nU.S.C. \xc2\xa7 1204(a)(1), take action to enforce its own orders, id. \xc2\xa7 1204(a)(2),\n\xe2\x80\x9cprescribe such regulations as may be necessary for the performance o f its func\xc2\xad\ntions,\xe2\x80\x9d id. \xc2\xa7 1204(h), and review \xe2\x80\x9crules and regulations of the Office o f Personnel\nM anagem ent.\xe2\x80\x9d Id. \xc2\xa7 1204(a)(4). This last responsibility, o f course, presupposes\nthat OPM will issue general regulations. See Am erican F e d \xe2\x80\x99n o f G o v \xe2\x80\x99t Em ployees,\n747 F.2d at 755 (M SPB \xe2\x80\x99s role includes \xe2\x80\x9cthe review of Hatch Act regulations\npromulgated by the O PM \xe2\x80\x9d).\nOSC possesses the authority to investigate and prosecute alleged Hatch Act\nviolations, 5 U.S.C. \xc2\xa7\xc2\xa7 1212(a), 1215(a), 1504, and \xe2\x80\x9cprescribe such regulations as\nmay be necessary to perform the functions of the Special Counsel.\xe2\x80\x9d5 Id. \xc2\xa7 1212(e).\nThe regulations issued by OSC are not subject to oversight by the M SPB. S ee 5\nU.S.C. \xc2\xa7 1204. OSC also has the power to issue advisory opinions on Hatch Act\nquestions, id. \xc2\xa7 1212(f), but these advisory opinions have no binding effect on the\nMSPB. See Am erican F e d \xe2\x80\x99n o f G o v \xe2\x80\x99t Em ployees, 747 F.2d at 752-55 (explaining\nthe nature and effect of \xe2\x80\x9cthe advice the Special Counsel is permitted to give\xe2\x80\x9d).\nOPM derives its authority over personnel management from two sources. First,\nspecific responsibilities are vested in the Director of OPM by 5 U.S.C. \xc2\xa7 1103,\nincluding the obligation to \xe2\x80\x9cpublish in the Federal Register general notice of any\nrule or regulation which is proposed by [OPM] and the application of which does\nnot apply solely to [OPM] or its employees.\xe2\x80\x9d Id. \xc2\xa7 1 103(b)(1). Second, the D i\xc2\xad\nrector of OPM is empowered to assume \xe2\x80\x9cauthority for personnel m anagement\nfunctions\xe2\x80\x9d delegated by the President.6 Id. \xc2\xa7 1104(a)(1). The Director o f OPM\n5 OPM a ss e n s that this provision em pow ers O SC to issue H atch Act regulations Both the M SPB and\nO SC have been granted the basic authority to prescribe all regulations necessary to perform th eir functions\nIndeed, the language o f the statutes vesting this fundam ental operational authority in the M SPB and O SC is\nvirtually identical C om pare 5 U S C \xc2\xa7 1204(h) (\xe2\x80\x9cThe [M erit System s Protection] Board shall have the\nauthority to prescribe such regulations as may be necessary for the perform ance o f its functions ") w ith 5\nU S C \xc2\xa7 1212(e) ("T he Special Counsel m ay prescribe such regulations as m ay be necessary to perform the\nfunctions o f the Special C o u n s e l.\') T he sim ilarity in the language o f these tw o statutes underm ines O P M \'s\nclaim that 5 U S C\n1212(e) confers upon O SC the pow er to issue H atch A ct regulations and bolsters\nO S C \'s in terpretation o f 5 U S.C \xc2\xa7 1212(e) as a sim ple assignm ent o f the authority to prom ulgate the reg u la\xc2\xad\ntions necessary to run O SC itself. Indeed, if OPM is correct in interpreting 5 U S C \xc2\xa7 1212(e) as sufficiently\ncapacious to accom m odate the function o f issuing H atch Act regulations, then the M SPB sim ilarly possesses\nplenary authority to prom ulgate Hatch A ct regulations under the virtually identical language o f 5 U S C b\n1204(h) The m ore logical interpretation dictates that the M SPB and O SC have been granted nothing more\nthan the authority to issue all regulations that they deem necessary for their ow n internal operations\n6 The D irecto r o f O PM also derives residual authority from section 102 o f the P resident\'s R eorganization\nPlan o f 1978, w hich transferred to the D irector o f O PM \xe2\x80\x9call functions vested by statute in the U nited States\nCivil Service C om m ission\' that were not expressly assigned to any other entity Reorg Plan N o. 2 o f 1978,\n3 C .F R 323 (1979), rep rin ted in 5 U S.C. $ 1101 note, a n d in 92 Stat 3783, s e e also A m erica n F ed\'ti oj\nG o v \'t E m p lo yees, 747 F 2d at 753 n 13 (identifying P resid en t\xe2\x80\x99s R eorganization Plan as source o f O PM\nauthority)\n\n3\n\n\x0cO pinions o f the O ffice o f L egal C ounsel\n\nmay, in turn, delegate to the heads o f executive branch agencies \xe2\x80\x9cany function\nvested in or delegated to the Director [of O PM ],\xe2\x80\x9d id. \xc2\xa7 1104(a)(2), but this broad\nauthority to delegate cannot \xe2\x80\x9cbe construed as affecting the responsibility o f the\nDirector [of OPM] to prescribe regulations and to ensure compliance with the civil\nservice laws, rules, and regulations.\xe2\x80\x9d Id. \xc2\xa7 1104(b)(3).\nThe statutory provisions apportioning the power once held exclusively by the\nCivil Service Com mission clearly authorize OPM to issue general regulations un\xc2\xad\nder the H atch Act. C onsistent with these statutes, OPM revised the existing Hatch\nA ct regulations on April 24, 1984. S ee Political Activity of Federal Employees, 49\nFed. Reg. 17,431, 17,432-33 (1984) (am endments codified at 5 C.F.R. \xc2\xa7\xc2\xa7\n733.101(g)-(j), 7 3 3 .122(b)(12)-(16)( 1993)). OPM rejected an attack upon its\nauthority to issue Hatch Act regulations by em phatically stating that \xe2\x80\x9cOPM be\xc2\xad\nlieves that it does have the authority to regulate the partisan political activity of\nFederal em ployees.\xe2\x80\x9d7 Id. at 17,431. Although OPM now argues that it lacks\nauthority to undertake such a task, the tripartite system of Hatch Act implementa\xc2\xad\ntion \xe2\x80\x94 including the statutory language setting up the division of labor \xe2\x80\x94 cuts\nagainst O P M \xe2\x80\x99s position. The MSPB has been assigned the task of reviewing \xe2\x80\x9crules\nand regulations o f the Office of Personnel M anagem ent,\xe2\x80\x9d 5 U.S.C. \xc2\xa7 1204(a)(4),\nyet the statute outlining the powers and functions o f the MSPB contains no corre\xc2\xad\nsponding assignm ent of responsibility for screening regulations promulgated by\nOSC. S ee 5 U.S.C. \xc2\xa7 1204. Instead, O SC gives advice in the form of opinions that\nhave no binding effect on the MSPB. Id. \xc2\xa7 1212(0- As the D.C. Circuit has ex\xc2\xad\nplained, these interrelated statutes provide the M SPB with oversight authority \xe2\x80\x9cin\nthe review o f Hatch Act regulations prom ulgated by the OPM ,\xe2\x80\x9d Am erican F e d \xe2\x80\x99n o f\nG o v \xe2\x80\x99t E m p lo yees , 747 F.2d at 755, w hile insulating the MSPB from any concern\nabout the myriad non-binding OSC advisory opinions that \xe2\x80\x9coffer essentially a fore\xc2\xad\ncast, albeit an educated one, of the w ay the M SPB would rule if an actual case\nm aterialized.\xe2\x80\x9d Id. at 753-54.\n\nIII. Congressional Ratification o f OPM\xe2\x80\x99s Role\nThe regim e dividing the responsibility for Hatch A ct implementation into three\ndiscrete tasks rem ained in place w hile Congress formulated the Hatch Act\nA m endm ents, and apparently informed congressional debate concerning the allo\xc2\xad\ncation o f regulatory responsibility. See, e.g., 139 Cong. Rec. S8610 (daily ed. July\n13, 1993) (statem ent of Senator R oth indicating that, in lieu of congressional\nam endm ent o f the Hatch Act, \xe2\x80\x9cthe O ffice o f Personnel Management, in consulta\xc2\xad\ntion with the Office of Special Counsel as well as the Department of Justice, should\nprom ulgate new regulations to clarify the restrictions on political activity\xe2\x80\x9d). In\n7 O PM c u ed the fo llo w in g authorities to su p p o rt its revision o f 5 C .F R. pt. 733: \xe2\x80\x9c5 U .S .C 3301, 3302,\n7301, 7 3 2 1 , 7 3 2 2 , 7323, 7324, 7325, and 7327; R eorganization Plan No. 2 o f 1978, 3 C FR 1978 C om p\np.323, an d E.O . 12107, 3 C F R 1978 Com p, p.264 \xe2\x80\x9d See 4 9 Fed R eg. at 17,432.\n\n4\n\n\x0cA u th o rity f a r Issuing H atch A ct R egulations\n\nfact, while the Hatch Act Amendments wended their way through Congress, OPM\nexpressly acknowledged its obligation to issue Hatch Act regulations: on April 26,\n1993, OPM reported in its semiannual regulatory agenda that it intended to review\nthe existing regulations regarding political activity of federal employees. See Of\xc2\xad\nfice of Personnel M anagement Semiannual Regulatory Agenda, 58 Fed. Reg.\n25,163, 25,169 (1993). In adopting the Hatch Act Amendments, which include no\nprovision reassigning any regulatory functions among the MSPB, OSC, and OPM,\nCongress ratified the roles historically adopted by the three agencies/\nThe legislative history of the Hatch Act Amendments fortifies the conclusion\nthat Congress approved of O PM \xe2\x80\x99s traditional obligation to issue Hatch Act regula\xc2\xad\ntions. At the inception of the process to amend the Hatch Act during the 103d\nCongress, the House of Representatives broke with settled practice by assigning to\nthe Special Counsel the obligation to \xe2\x80\x9cprescribe any rules and regulations neces\xc2\xad\nsary to carry out\xe2\x80\x9d the Hatch Act amendments. H.R. 20, 103d Cong., \xc2\xa7 2(a) (1993)\n(proposed version o f 5 U.S.C. \xc2\xa7 7327 published at 139 Cong. Rec. 3983 (1993)).\nThe Senate, in contrast, passed a bill striking out the entire House bill \xe2\x80\x94 including\nthe assignment of rule-making authority to the Special Counsel \xe2\x80\x94 and adding pro\xc2\xad\nvisions that authorized OPM to prescribe regulations for certain conduct. 139\nCong. Rec. S9169, S 9 170-71 (daily ed. July 21, 1993). The House ultimately ac\xc2\xad\nceded to the Senate version of the Hatch Act reform bill, including the provisions\nassigning the responsibility for issuing various regulations to OPM. Id. at H6814,\nH6815-16 (daily ed. Sept. 21, 1993).\nThe tripartite system of Hatch Act implementation created in 1978 has not been\naltered by the Hatch Act Amendments, which assign to OPM the authority to pre\xc2\xad\nscribe regulations on two specific subjects in language that treats OPM as the\nagency with plenary authority to issue Hatch Act regulations. See Hatch Act\nAmendments, sec. 2(a), \xc2\xa7 7325, 107 Stat. at 1004 (\xe2\x80\x9cThe Office of Personnel M an\xc2\xad\nagement may prescribe regulations permitting em ployees\xe2\x80\x9d in certain geographic\nareas \xe2\x80\x9cto take an active part in political management and political campaigns in\xc2\xad\nvolving the municipality or other political subdivision in which they reside.\xe2\x80\x9d); id.\nsec. 8(a), \xc2\xa7 3303(e), 107 Stat. at 1007 (\xe2\x80\x9cUnder regulations prescribed by the Office\nof Personnel Management, the head o f each agency shall ensure that employees\nand applicants are given notice of the provisions of this section\xe2\x80\x9d pertaining to po\xc2\xad\nlitical recommendations.). In contrast, the Hatch Act Amendments mention OSC\nonly in the context of broadening the investigative authority of the Special Coun\xc2\xad\nsel. See id. sec. 3, \xc2\xa7 1216(c), 107 Stat. at 1004. These provisions prompted the\nCongressional Budget Office to observe that \xe2\x80\x9c[t]he bill would require the Office of\nPersonnel M anagement (OPM) to issue the necessary regulations and the Office of\nSpecial Counsel to enforce these regulations.\xe2\x80\x9d S. Rep. No. 103-57 at 22, reprin ted\nin 1993 U.S.C.C.A.N. at 1823. We agree with this assessment.\n\n5\n\n\x0cO pinions o f the O ffice o f L egal C ounsel\n\nIV. Conclusion\nSince 1978, OPM has assumed the responsibility for promulgating Hatch Act\nregulations. The Hatch Act Amendments ratified and supplemented O PM \xe2\x80\x99s\nauthority to issue general Hatch Act regulations, while concomitantly reaffirming\nand augm enting O S C \xe2\x80\x99s traditional role in investigating and prosecuting Hatch Act\nviolations. A ccordingly, we conclude that OPM has the authority to promulgate\nrevised Hatch Act regulations.\n\nW ALTER DELLINGER\nA ssista n t A ttorney G eneral\nOffice o f L egal Counsel\n\n6\n\n\x0c'


b'Deployment of United States Armed Forces to Haiti\nThe President has authority to order the deployment of the armed forces to Haiti in order to protect\nAmerican citizens there.\nThe deployment is consistent with the War Powers Resolution.\n\nMarch 17, 2004\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nYou have asked our Office to confirm in writing our views about the legal basis\nfor the President\xe2\x80\x99s recent deployment of the United States armed forces to Haiti.\nAs we explain below, the President has the legal authority to order the deployment. The deployment is also consistent with the War Powers Resolution.\nI.\nSince early February of this year, an armed rebellion has sought to overthrow\nthe government of Haitian President Jean-Bertrand Aristide. On February 23,\nPresident Bush deployed approximately 50 Marines to protect the United States\nEmbassy in Port-au-Prince, Haiti, from political violence or looting. See Letter to\nCongressional Leaders on the Deployment of U.S. Military Forces in Response to\nSecurity Concerns for United States Embassy Personnel in Haiti, 40 Weekly\nComp. Pres. Doc. 284 (Feb. 25, 2004).\nOn February 29, President Aristide announced his resignation and fled the\ncountry. The Chief Justice of the Haitian Supreme Court, Boniface Alexandre, was\nsworn in as the leader of a transitional government, as provided by the Haitian\nConstitution. S.C. Res. 1529, pmbl., U.N. Doc. S/RES/1529, at 1 (Feb. 29, 2004)\n(\xe2\x80\x9c[t]aking note of the resignation of Jean-Bertrand Aristide as President of Haiti\nand the swearing-in of President Boniface Alexandre as the acting President of\nHaiti in accordance with the Constitution of Haiti\xe2\x80\x9d). He issued an appeal \xe2\x80\x9cto the\ngovernments of friendly countries to support with all urgency the peaceful and\nconstitutional process which has begun\xe2\x80\x9d in Haiti. Statement of Haitian President\nBoniface Alexandre (Feb. 29, 2004). Specifically, he \xe2\x80\x9cauthorize[d] security forces\nto enter and operate on the territory of the Republic of Haiti for the purpose of\nconducting activities designed to bring about a climate of security and stability\nwhich will support the political processes underway, facilitate the furnishing of\nhumanitarian assistance, and in general help the people of Haiti.\xe2\x80\x9d Id.\nOn the day Aristide announced his departure, the United Nations Security\nCouncil adopted a resolution authorizing the deployment of a Multinational\nInterim Force in Haiti. S.C. Res. 1529, \xc2\xb6 2, U.N. Doc. S/RES/1529, at 2 \xc2\xb6 2. The\nresolution authorized the force to \xe2\x80\x9ccontribute to a secure and stable environment in\nthe Haitian capital and elsewhere in the country\xe2\x80\x9d in order to \xe2\x80\x9cfacilitate the\n\n30\n\n\x0cDeployment of United States Armed Forces to Haiti\n\nprovision of humanitarian assistance and the access of international humanitarian\nworkers to the Haitian people in need\xe2\x80\x9d and to \xe2\x80\x9cfacilitate the provision of international assistance to the Haitian police and the Haitian Coast Guard in order to\nestablish and maintain public safety and law and order and to promote and protect\nhuman rights.\xe2\x80\x9d Id. \xc2\xb6 2(a)\xe2\x80\x93(c), U.N. Doc. S/RES/1529, at 2 \xc2\xb6 2(a)\xe2\x80\x93(c). The same\nday, President Bush announced that he was \xe2\x80\x9corder[ing] the deployment of\nMarines, as the leading element of an interim international force, to help bring\norder and stability to Haiti.\xe2\x80\x9d Remarks on the Resignation of President JeanBertrand Aristide of Haiti, 40 Weekly Comp. Pres. Doc. 310 (Feb. 29, 2004).\nFrance, Canada, and Chile have also deployed troops to Haiti.\nII.\nThe President has the authority to deploy the armed forces abroad in order to\nprotect American citizens and interests from foreign threats. Under Article II,\nSection 2 of the Constitution, the President is the \xe2\x80\x9cCommander in Chief of the\nArmy and Navy of the United States.\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 2, cl. 1. Article II also\nmakes the President the Chief Executive. The Supreme Court has \xe2\x80\x9crecognized \xe2\x80\x98the\ngenerally accepted view that foreign policy [is] the province and responsibility of\nthe Executive.\xe2\x80\x99\xe2\x80\x9d Dep\xe2\x80\x99t of Navy v. Egan, 484 U.S. 518, 529 (1988) (quoting Haig v.\nAgee, 453 U.S. 280, 293\xe2\x80\x9394 (1981)).\nHistory offers ample evidence for the proposition that the President may take\nmilitary action abroad, even, as here, in the absence of specific prior congressional\nauthorization. See Richard F. Grimmett, Cong. Research Serv., RL30172, Instances of Use of United States Armed Forces Abroad, 1798\xe2\x80\x932001 (updated Feb. 5,\n2002). Many of these actions have been undertaken to protect American citizens\nand property. As Attorney General Robert Jackson explained, \xe2\x80\x9cthe President\xe2\x80\x99s\nauthority has long been recognized as extending to the dispatch of armed forces\noutside of the United States, either on missions of good will or rescue, or for the\npurpose of protecting American lives or property or American interests.\xe2\x80\x9d Training\nof British Flying Students in the United States, 40 Op. Att\xe2\x80\x99y Gen. 58, 62 (1941).\nSimilarly, the Supreme Court observed in United States v. Verdugo-Urquidez, 494\nU.S. 259 (1990), that \xe2\x80\x9c[t]he United States frequently employs Armed Forces\noutside this country\xe2\x80\x94over 200 times in our history\xe2\x80\x94for the protection of\nAmerican citizens or national security.\xe2\x80\x9d Id. at 273.\nFor example, in Durand v. Hollins, 8 F. Cas. 111 (C.C.S.D.N.Y. 1860) (No.\n4186), an American naval officer acting under orders from President Pierce bombarded Greytown, Nicaragua, in retaliation for the Nicaraguan government\xe2\x80\x99s\nrefusal to make reparations for attacks against United States citizens and property.\nIn ruling on a lawsuit brought against the naval officer, Justice Nelson held that\nthe officer acted properly. He observed that \xe2\x80\x9cthe interposition of the president\nabroad, for the protection of the citizen, must necessarily rest in his discretion.\xe2\x80\x9d Id.\nat 112. More recently, we explained in the context of the Iranian hostage crisis that\n\n31\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\n\xe2\x80\x9cthe President has the constitutional power as Chief Executive and Commanderin-Chief to protect the lives and property of Americans abroad.\xe2\x80\x9d Presidential\nPowers Relating to the Situation in Iran, 4A Op. O.L.C. 115, 121 (1979). Similarly, we concluded in 1992 that the President had authority to deploy the armed\nforces to Somalia to protect \xe2\x80\x9cprivate United States citizens engaged in relief\noperations, and United States military personnel conducting humanitarian supply\nflights.\xe2\x80\x9d Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C.\n6, 10 (1992).\nIn light of these principles, the President has authority to order the deployment of\nthe armed forces to Haiti in order to protect American citizens there. See Department\nof Defense News Briefing: Secretary Rumsfeld and General Myers (Mar. 1, 2004),\navailable at http://www.defense.gov/transcripts/archive.aspx (last visited May 31,\n2013) (Defense Secretary Rumsfeld stating that the mission of the forces deployed to\nHaiti is in part \xe2\x80\x9cto protect U.S. citizens\xe2\x80\x9d). Thousands of Americans live in Haiti,1 and\nthe President could reasonably conclude that they would be in danger if the country\nwere to descend into lawlessness. He also could reasonably decide that the deployment is necessary to protect American property, such as the United States Embassy\nin Haiti.\nWhen the armed forces are deployed for the protection of American citizens\nand property, their mission once deployed need not be so narrowly limited. As we\nexplained in our opinion on the Somalia deployment, \xe2\x80\x9c[p]ast military interventions\nthat extended to the protection of foreign nationals provide precedent for action to\nprotect endangered Somalians and other non-United States citizens.\xe2\x80\x9d Military\nForces in Somalia, 16 Op. O.L.C. at 11. For example, in 1965 President Johnson\nordered military intervention in the Dominican Republic \xe2\x80\x9cto preserve the lives of\nAmerican citizens and citizens of a good many other nations.\xe2\x80\x9d An Assessment of\nthe Situation in the Dominican Republic, 53 Dep\xe2\x80\x99t St. Bull. 19, 20 (1965). And\nduring the Boxer Rebellion in China, President McKinley sent United States\ntroops as part of a multinational force to lift the siege of the foreign quarters in\nBeijing. See Compilation of the Messages and Papers of the Presidents, 1789\xe2\x80\x93\n1902, Supplement 113, 115\xe2\x80\x9320 (James A. Richardson ed., 1904).\nThe President also may determine that the deployment is necessary to protect\nAmerican foreign policy interests. One such interest is the preservation of regional\nstability. As we noted in our opinion on the introduction of armed forces into\nBosnia, the President may employ the armed forces to protect an American\ninterest in \xe2\x80\x9cpreserving peace in the region.\xe2\x80\x9d Proposed Deployment of United States\nArmed Forces Into Bosnia, 19 Op. O.L.C. 327, 332 (1995). Given the proximity of\nHaiti to the United States, the United States has an obvious interest in maintaining\npeace and stability in that country. This is especially so because past instances of\n1\n\nAccording to the website of the United States Embassy in Haiti, \xe2\x80\x9c[a]pproximately 15,000 U.S.\ncitizens are registered at the Consular Section, but many more are believed to reside in the country.\xe2\x80\x9d\nSee http://usembassy.state.gov/haiti/wwwhc00e.html (last visited Mar. 4, 2004).\n\n32\n\n\x0cDeployment of United States Armed Forces to Haiti\n\nunrest in Haiti have led to the mass emigration of refugees attempting to reach the\nUnited States. See Address to the Nation on Haiti, 2 Pub. Papers of Pres. William\nJ. Clinton 1558, 1559 (Sept. 15, 1994) (President Clinton stated that his 1994\ndeployment of troops to Haiti was appropriate because in the absence of intervention, \xe2\x80\x9c[w]e will continue to face the threat of a mass exodus of refugees and its\nconstant threat to stability in our region and control of our borders\xe2\x80\x9d); see also\nLetter to Congressional Leaders on the Further Deployment of United States\nMilitary Forces in Haiti, 40 Weekly Comp. Pres. Doc. 317 (Mar. 2, 2004) (\xe2\x80\x9cFurther Deployment Letter\xe2\x80\x9d) (noting that the deployment will \xe2\x80\x9cfacilitate the continued\nrepatriation of Haitian migrants\xe2\x80\x9d).\nAnother American interest in Haiti arises from the involvement of the United\nNations in the situation there. In an opinion supporting President Truman\xe2\x80\x99s\ndecision to aid the United Nations in defending South Korea in 1950, the State\nDepartment observed that \xe2\x80\x9c[t]he continued existence of the United Nations as an\neffective international organization is a paramount United States interest.\xe2\x80\x9d Authority of the President to Repel the Attack in Korea, 23 Dep\xe2\x80\x99t St. Bull. 173, 177\n(1950). And in our opinion on the Somalia deployment, we noted that \xe2\x80\x9cmaintaining the credibility of United Nations Security Council decisions, protecting the\nsecurity of United Nations and related relief efforts, and ensuring the effectiveness\nof United Nations peacekeeping operations can be considered a vital national\ninterest.\xe2\x80\x9d Authority to Use United States Military Forces in Somalia, 16 Op.\nO.L.C. at 11. In this case, the deployment will help to create the conditions in\nwhich a Multinational Interim Force, authorized by a United Nations Security\nCouncil Resolution, can be deployed to Haiti. See Further Deployment Letter at\n317 (noting that the deployment will \xe2\x80\x9chelp create conditions in the capital for the\nanticipated arrival of the Multinational Interim Force\xe2\x80\x9d). Of course, as Attorney\nGeneral Barr noted in discussing the Somalia intervention, a Security Council\nresolution is \xe2\x80\x9cnot required as a precondition for Presidential action.\xe2\x80\x9d Authority to\nUse United States Military Forces in Somalia, 16 Op. O.L.C. at 7. Nevertheless, in\nexercising his authority as Commander in Chief and Chief Executive, the President could choose to take the resolution into account in evaluating the foreign\npolicy and national security interests of the United States that are at stake in Haiti.\nIII.\nThe deployment of armed forces to Haiti is consistent with the War Powers\nResolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C.\n\xc2\xa7\xc2\xa7 1541\xe2\x80\x931548 (2000). Section 4(a) of the Resolution provides that the President\n\xe2\x80\x9cshall submit\xe2\x80\x9d a report to Congress within 48 hours whenever armed forces are\nintroduced (1) \xe2\x80\x9cinto hostilities or into situations where imminent involvement in\nhostilities is clearly indicated by the circumstances,\xe2\x80\x9d (2) \xe2\x80\x9cinto the territory,\nairspace or waters of a foreign nation, while equipped for combat, except for\ndeployments which relate solely to supply, replacement, repair, or training of such\n\n33\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nforces,\xe2\x80\x9d or (3) \xe2\x80\x9cin numbers which substantially enlarge United States Armed\nForces equipped for combat already located in a foreign nation.\xe2\x80\x9d 87 Stat. at 555\xe2\x80\x93\n56. After the President reports the introduction of forces into imminent or actual\nhostilities under section 4(a)(1), the Resolution purports to require him to withdraw those forces within 60 days (or 90 days, based on military necessity) unless\nCongress has authorized continued operations. Id. \xc2\xa7 5(b). This provision does not\napply when the armed forces are introduced to a situation described in section\n4(a)(2) or section 4(a)(3).\nThe War Powers Resolution does not purport to limit the President\xe2\x80\x99s authority\nto deploy the armed forces without congressional authorization; on the contrary, it\n\xe2\x80\x9crecognizes and presupposes the existence of unilateral presidential authority to\ndeploy armed forces \xe2\x80\x98into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.\xe2\x80\x99\xe2\x80\x9d Deployment of\nUnited States Armed Forces Into Haiti, 18 Op. O.L.C. at 175; see also Proposed\nDeployment of United States Armed Forces Into Bosnia, 19 Op. O.L.C. at 335. To\nbe sure, the Resolution provides for reports by the President, but we understand\nthat the President has already informed Congress of the deployment, thus satisfying any reporting requirement that may apply. See Further Deployment Letter.\nAt this time, we need not determine whether the situation in Haiti is one where\n\xe2\x80\x9cimminent involvement in hostilities is clearly indicated by the circumstances\xe2\x80\x9d\nwithin the meaning of the Resolution\xe2\x80\x99s 60-day provision, or whether the War\nPowers Resolution is constitutional. But it is surely relevant to the question\nwhether \xe2\x80\x9cinvolvement in hostilities\xe2\x80\x9d is \xe2\x80\x9cimminent\xe2\x80\x9d that the deployment is at the\nexpress invitation of the government of Haiti. And the departure of President\nAristide creates at least some possibility that large-scale fighting between rebels\nand pro-Aristide forces may come to an end. Although it is also possible that some\nlevel of violence and instability will continue, we previously have concluded that\n\xe2\x80\x9cthe term \xe2\x80\x98hostilities\xe2\x80\x99 should not be read necessarily to include sporadic military or\nparamilitary attacks on our armed forces.\xe2\x80\x9d Presidential Power to Use Armed\nForces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185, 194 (1980).\nWe believe that the President has authority to order the deployment of the\nUnited States armed forces to Haiti for the purposes we have discussed.\nJACK L. GOLDSMITH III\nAssistant Attorney General\nOffice of Legal Counsel\n\n34\n\n\x0c'