b"Ethical Issues Raised by Assistant United States Attorneys'\nRepresentation of Judges\nA number of concerns are raised under the American Bar Association\xe2\x80\x99s canons of\nprofessional ethics when an Assistant United States A ttorney (AUSA) is asked to\nrepresent a judge in his or h er district in a suit brought by a private individual. These\nethical concerns could be handled through disclosure o f prior or pending representa\xc2\xad\ntion to opposing counsel, by arranging to have the judge represented by an AUSA\nfrom another district, or by retaining private counsel to represent the judge.\n\nNovember 2, 1981\nMEMORANDUM TO TH E COUNSEL, OFFICE OF\nPROFESSIONAL RESPONSIBILITY, DEPARTMENT OF\nJUSTICE\nThis responds to your request for our opinion on several questions\nraised by the United States Attorney for the Southern District of\nCalifornia, M. James Lorenz.1These questions center around the ethical\nproblems raised when an Assistant United States Attorney (AUSA)\nappears before a federal judge whom he is defending or has defended in\na suit in which the judge is charged with depriving an individual of his\nconstitutional rights. See 42 U.S.C. \xc2\xa7 1983.2 On April 13, 1981, this and\nrelated problems, including that of representing a judge sued for actions\ntaken while he was a federal officer but prior to his nomination to the\nbench, were raised at a meeting of the Advisory Committee for United\nStates Attorneys held at the Department of Justice. In September, this\nOffice received a letter from the United States Attorney in Puerto\nRico, Raymond L. Acosta, outlining cases in which AUSAs repre\xc2\xad\nsented judges who had been sued for their handling of administrative\nmatters involving the district court.3 We believe that the present system\nof representation for judges by AUSAs raises recurrent ethical concerns\nthat should be addressed at the highest levels of the Justice Depart\xc2\xad\nment. We suggest that your Office convene a meeting that would\n1We have solicited and received the views of the Civil Division on this question.\n2 Representation by the AUSA is authorized by the Department of Justice at the request of the\nAdm inistrative Office o f United States Courts. United States Attorneys\xe2\x80\x99 Manual, \xc2\xa7 1-10.000 (1977).\n3 L etter from Raymond L. Acosta, United States Attorney for the District of Puerto Rico, to the\nOffice o f Legal Counsel, September 11, 1981 (Acosta Letter). F o r example, Mr. Acosta described one\ncase in w hich his Office was simultaneously prosecuting a lawyer for trespass against the Navy and\ndefending the entire district court from charges that the judge\xe2\x80\x99s refusal to admit the lawyer to the\nPuerto Rican bar was politically motivated.\n\n318\n\n\x0cinvolve, at the least, the Executive Office for United States Attorneys,\nthe Civil Division, and the Deputy Attorney General, in order to draw\nup a uniform policy that will eliminate, to the greatest extent possible,\nthese ethical concerns.\nI. Background\nMost suits in which representation is requested appear to fall into the\ncategory outlined by Mr. Lorenz\xe2\x80\x94the judge is sued for actions that are\nalleged to violate an individual\xe2\x80\x99s constitutional rights. Such cases will,\nwe assume, be defended on the ground of absolute judicial immunity.\nOthers, like Mr. Acosta\xe2\x80\x99s examples, arise in Bivens-type suits and man\xc2\xad\ndamus actions stemming from administrative, rather than judicial, mat\xc2\xad\nters. These \xe2\x80\x9cdemand more involvement on the part of the attorneys\nthan is normally required in cases where the absolute immunity doc\xc2\xad\ntrine is applicable.\xe2\x80\x9d Acosta Ltr., at l.4\nPermitting AUSAs to represent federal judges thus raises ethical\nconcerns about which cases should be accepted and what, if anything,\nshould be said to opposing counsel. These concerns are not matters of\nidle or academic speculation for the attorneys involved. At the Advi\xc2\xad\nsory Committee meeting, some of those present argued that a United\nStates Attorney\xe2\x80\x99s office is analogous to a firm with one partner and a\nnumber of associates, and that the same considerations that bind the\nprivate bar also bind the government. See Roberson v. United States, 249\nF.2d 737, 741 (5th Cir.), cert, denied, 356 U.S. 919 (1958) (United States\nAttorney is \xe2\x80\x9cof counsel\xe2\x80\x9d to all cases filed in his district). Others noted\nthat as long as the judge was an AUSA\xe2\x80\x99s client, it was immaterial\nwhether the suit was frivolous or easily defended, since the merit of a\nsuit is not the usual test for whether an attomey-client relationship\nexists.5\nMr. Lorenz asked whether the judges should be forced to recuse\nthemselves because the situation is one in which the judge\xe2\x80\x99s \xe2\x80\x9cimpartial\xc2\xad\nity might reasonably be questioned.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 455(a). We do not\nbelieve that it is appropriate for this Office to issue an opinion instruct\xc2\xad\ning the judiciary on its ethical duties. The individual judge, the appeals\ncourt, and the Administrative Office of the United States Courts, which\nis charged with issuing opinions on the ethical standards of judges, are\nthe ultimate authorities for deciding issues of disqualifaction under 28\nU.S.C. \xc2\xa7 455. Rather, the issue for this Department is how to resolve\n4 We are unable to determine what percentage of requests for representation falls into each\ncategory, since not all decisions to represent judges are reported to the Civil Division or the\nExecutive Office for United States Attorneys. Mr. Acosta reported four requests in the last three\nyears.\n&\xe2\x80\x9c [T]here invariably is at least an intangible interest on the part o f any judge in having his actions\nvindicated.\xe2\x80\x9d ABA Comm, on Ethics and Professional Responsibility, Informal Op. 1331 (1975), at 1.\nMr. Acosta expressed a concern that, in the real world, and especially in the administrative actions\nwith which he was familiar, judges remembered the AUSAs who had not successfully defended their\nactions.\n\n319\n\n\x0cthe ethical considerations for an AUSA, who, as the Attorney Gener\xc2\xad\nal\xe2\x80\x99s representative, appears before a federal judge whom he is or has\nrepresented.\nII. Tlhe Ethical Considerations\nAttorneys employed by the Department are subject to the canons of\nprofessional ethics of the American Bar Association. 28 C.F.R.\n\xc2\xa7 45.735-l(b). Canon 9 states: \xe2\x80\x9cA lawyer should avoid even the appear\xc2\xad\nance of professional impropriety.\xe2\x80\x9d To a layman, knowledge that the\ngovernment\xe2\x80\x99s attorney has at some time also been the judge\xe2\x80\x99s attorney\nmight well suggest that the AUSA will have an unfair advantage in\npractice before the judge. This was recognized in a recent ethics opin\xc2\xad\nion in which a firm of private attorneys asked whether it could repre\xc2\xad\nsent state judges \xe2\x80\x9cin actions brought against them under various federal\nstatutes, including, presumably, [42 U.S.C. \xc2\xa7 1983].\xe2\x80\x9d ABA Comm, on\nEthics and Professional Responsibility (ABA Committee), Informal Op.\n1331 (1975), at 1. The situation arose when the state\xe2\x80\x99s attorney general\n\xe2\x80\x9cdeclin[ed] to follow the practice of his predecessors\xe2\x80\x9d by providing the\njudges with state attorneys for their defense. Id.\nThe ABA Committee had some difficulty answering the question,\nnoting that there was \xe2\x80\x9cno clearly controlling provision\xe2\x80\x9d in the Code of\nProfessional Responsibility (CPR) and \xe2\x80\x9cno reference\xe2\x80\x9d in the Code of\nJudicial Conduct that was relevant. Id. at 2. \xe2\x80\x9c [I]n light of the sensitive\nproblem in question,\xe2\x80\x9d however, the ABA Committee turned to the\nethical considerations of the CPR:\nFor example, Canon 9 itself admonishes that \xe2\x80\x9cA lawyer\nshould avoid even the appearance of professional impro\xc2\xad\npriety.\xe2\x80\x9d It is debatable whether serving in the capacity\nsuggested is to be regarded as fulfilling the role of a parttime public officer. However, it is suggestive of the aspirational level of conduct suggested by the Code of Profes\xc2\xad\nsional Responsibility that Ethical Consideration 8-8 sug\xc2\xad\ngests that \xe2\x80\x9cA lawyer who is a public officer, whether full\nor part-time, should not engage in activities in which his\npersonal or professional interests are or foreseeably may\nbe in conflict with his official duties.\xe2\x80\x9d Obviously, contrary\npolicy arguments can be made that this practice ought not\nto be discouraged by imposition of undue burdens upon\ncounsel willing to undertake a commendable and often\narduous task.\nUnder the described circumstances, we conclude that\nthe portions of the Code of Professional Responsibility\nrelating to the avoidance of the appearance of impropriety\nsuggest that in many instances it would be preferable for\nyour firm not to appear before a judge who is then being\n320\n\n\x0crepresented by you in these circumstances. Of course, it\nwould be advisable, if possible, to effect an advance\nagreement with the court administrator establishing a pro\xc2\xad\ncedure to avoid any conflicting representation.\nId.\n\nIn view of the obvious disadvantage to the fashioning of a categori\xc2\xad\ncal rule, especially because the factual contexts in which the question\nmay arise are so diverse, we hesitate, as did the drafters of Opinion No.\n1331, to assert that one solution or another is best for all the varied\ncases that arise in the United States Attorneys\xe2\x80\x99 Offices around the\ncountry. There are at least three alternatives that could be adopted.\nFirst, the AUSA could disclose his prior or pending 6 representation to\nopposing counsel. Disclosure of the representation will sustain the\npublic\xe2\x80\x99s confidence in the judicial system by: (1) eliminating the suspi\xc2\xad\ncion that something was hidden should the fact of representation come\nto light later on; and (2) demonstrating that the government is willing\nto disclose information which is arguably relevant, even though the\ndisclosure might be of use to the other party. Disclosure will also\nsustain the faith of the private bar in the integrity of government\nattorneys.7 These considerations are grounded in the proposition that\nthe impartiality of the judiciary is at the heart of its ability to enforce\nits judgments. Government attorneys have a special responsibility, as\nrepresentatives of the Executive Branch in particular and of the gov\xc2\xad\nernment in general, to ensure that that impartiality is maintained.8\nGiven the sweep of the absolute immunity defense available in most\ncases and the fact that a prolonged attorney-client relationship probably\nwill not develop between the AUSA and the judge, the disclosure\nshould generally establish the lack of a basis for suspecting prejudice or\nfavoritism on the part of the judge. There may well be unusual cases,\nhowever, in which representation is extensive, see Stump v. Sparkman,\n435 U.S. 349 (1978), and the attorney-client relationship has become\nfully developed. Once the fact of representation has been disclosed, it\nwould be for opposing counsel to decide whether to file a motion\nalleging bias or prejudice, 28 U.S.C. \xc2\xa7 144, or for a judge to determine\nwhether to recuse himself. 28 U.S.C. \xc2\xa7 455; ABA Code of Judicial\nConduct, Canon 3.\xc2\xae Another alternative would be for the opposing\n6W hether an AUSA should ever appear before a judge whom he is then representing without\ndisclosure to opposing counsel obviously raises a serious ethical question\n7It will also help to prevent those attacks on the judiciary which tend to threaten its dignity and\nintegrity. ABA Code o f Professional Responsibility, EC 8-6.\n8\xe2\x80\x9c Reasons which call for a high standard of conduct on the part of all attorneys are increased in\nthe case of counsel for the government.\xe2\x80\x9d Fahy, Special Ethical Problems o f Counsel fo r the Government,\n33 Fed. B.J. 331, 332 (1974).\n\xc2\xaeIt should not be too burdensome for an AUSA to keep track o f which judges he has represented.\nThe disclosure will not violate Canon 4\xe2\x80\x99s injunction to protect client confidences, since the fact of\nrepresentation is presumably a matter of public record. Nevertheless, the Executive Office for United\nC ontinued\n\n321\n\n\x0ccounsel to waive his right to seek disqualification of the judge. 28\nU.S.C. \xc2\xa7 455(e).10\nSecond, the judge could be represented by AUSAs from another\nUnited States Attorney\xe2\x80\x99s office. Since most cases involve motions to\ndismiss based on absolute immunity, which could be handled largely by\nmail, travel costs should be minimal. For those few cases involving\nmore extended representation, we believe that the more extensive the\nattorney-client relationship, the more justified the cost would be to\nprotect the AUSA and the judge from questions about their integrity.\nFinally, the Department could insist that the Administrative Office of\nthe United States Courts pay for outside counsel for the judges. See 53\nComp. Gen. 301 (1973).\nWe urge that this matter be resolved as promptly as possible in order\nto give the new United States Attorneys uniform guidance on an issue\nthat will almost inevitably arise in their offices. Further, it would\nrescue judges from a dilemma in which acceptance of representation\ncreates an ethical quandary both for them and for their attorneys.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\nStates A ttorneys may wish to issue a notice to all judges that' this fact will be disclosed in all future\ncases in order to avoid any embarrassment to the judge.\nW e do not believe that representation of a judge by one AUSA requires any other AUSA in the\ndistrict to inform opposing counsel o f the representation. The Judicial Conference Advisory Commit\xc2\xad\ntee on Judicial Activities does not consider the United States A ttorney's Office a private law firm. As\na result, a judge whose son is an A U SA need not recuse himself from cases in which the government\nappears, as would otherw ise be mandated by 28 U.S.C. \xc2\xa7 455(bX5)(ii). Advisory Committee on Judicial\nActivities, Advisory Opinion No. 38 (1974). See also United States v. Zagari, 419 F. Supp. 494, 505-06\n(N.D. Ca. 1976) (representation by AU SA of judge on motion to quash subpoena does not require\nrecusal w hen either AUSA or any other member o f the United States A ttorney\xe2\x80\x99s office appears).\n10 \xe2\x80\x9cAny justice . . . shall disqualify himself in any proceeding in which his impartiality might\nreasonably be questioned.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 455(a). The Civil Division has expressed some concern that\nobtaining the w aiver creates another set of problems: \xe2\x80\x9c It must be noted, however, that waivers will\nprobably be closely scrutinized. A request by a judge for a w aiver places counsel in the awkward\nposition o f acquiescing or openly doubting the court\xe2\x80\x99s impartiality . . . . W here a waiver is contem\xc2\xad\nplated, then, the best procedure w ould be for the AUSA and his opponent to work it out among\nthem selves at the A U SA \xe2\x80\x99s initiative and then present it to the judge.\xe2\x80\x9d\n\n322\n\n\x0c"


b'Constitutionality of Congress\xe2\x80\x99 Disapproval of Agency\nRegulations by Resolutions Not Presented to the President\nSection 431 o f the G eneral Education Provisions A ct, 20 U.S.C. \xc2\xa7 1232(d), w hich\npurports to authorize Congress, by concurrent resolutions that are not to be presented\nto the President for his approval or veto, to disapprove D epartm ent o f E ducation\nregulations for education program s it administers, is unconstitutional.\nLegislative veto devices deny the President his pow er under A rticle I, \xc2\xa7 7 o f the\nC onstitution, to veto legislation, interfere w ith his duty under A rticle II, \xc2\xa7 3 , faithfully\nto execute the laws, and arrogate to C ongress pow er to interpret existing law that is\nconstitutionally reserved to the judicial branch.\nT he congressional disapproval provisions o f the G eneral E ducation Provisions Act,\n20 U.S.C. \xc2\xa7 1232(d), are severable from the substantive rulem aking authorities con\xc2\xad\nferred by the E ducation A m endm ents o f 1978, P.L. No. 95-561, 92 Stat. 2143.\nT he A ttorney G eneral must scrutinize with caution any claim that he or any executive\nofficer may decline to defend or enforce a statute w hose constitutionality is m erely in\ndoubt. At the same time, the Executive is required to enforce the Constitution and to\npreserve the integrity o f its functions against unconstitutional encroachm ents.\n\nJune 5, 1980\nT\n\nhe\n\nSecretary\n\nof\n\nE\n\nd u c a t io n\n\nam responding to your request for\nmy opinion regarding the constitutionality of \xc2\xa7431 of the General\nEducation Provisions Act (GEPA), 20 U.S.C. \xc2\xa7 1232(d). That provision\npurports to authorize Congress, by concurrent resolutions that are not\nto be submitted to the President for his approval or veto, to disapprove\nfinal regulations promulgated by you for education programs adminis\xc2\xad\ntered by the Department of Education. Acting under this authority,\nCongress has recently disapproved regulations concerning four pro\xc2\xad\ngrams of your Departm ent.1For reasons set forth below, I believe that\nMy D ear\n\nM adam\n\nS e c re ta ry : I\n\n1\nH. C o n . Res. 318. 96th C o n g ., 2d Sess. (1980), d is a p p ro v e s re g u la tio n s issued u n d e r \xc2\xa7 4 5 1 o f th e\nG E P A , 20 U .S.C . \xc2\xa7 1234. p erta in in g to th e o p e ra tio n s o f th e E d u c a tio n A p p e a l B o ard . 45 F ed . R eg.\n22,634 (1980). H . C o n . R es. 319, 9 6 th C o n g ., 2d Sess. (1980), d is a p p ro v e s re g u la tio n s issued u n d e r\n\xc2\xa7 322 o f th e E le m e n ta ry an d S e c o n d a ry E d u c a tio n A c t o f 1965 (E S E A ], 20 U .S .C . \xc2\xa7 2962, p e rta in in g\nto a rts e d u c a tio n . 45 F e d . R eg. 22,742 (1980). H . C o n . R es. 332, 96 th C o n g ., 2d Sess. (1980),\nd is a p p ro v e s re g u la tio n s issued u n d e r \xc2\xa7\xc2\xa7 346-48 o f th e E S E A , 20 U .S .C . \xc2\xa7\xc2\xa7 3001 -0 3 , p e rta in in g to law r e la te d e d u c a tio n . 45 F ed . R eg. 27,880 (1980). S. C o n . Res. 91, 9 6 th C o n g ., 2d Sess. (1980). d is a p \xc2\xad\np ro v e s re g u la tio n s issued u n d e r T itle IV o f th e E S E A , 20 U .S .C . \xc2\xa7\xc2\xa73 0 8 1 et seq.. p e rta in in g to g ra n ts\nto sta te an d local e d u c a tio n ag e n c ie s fo r e d u c a tio n a l reso u rces. 45 F ed . R eg . 23,602 (1980). T h e\ns ta tu to ry a u th o rity fo r issu an ce o f th e se re g u la tio n s w as a d d e d to th e G E P A o r th e E S E A b y th e\nE d u c a tio n A m e n d m e n ts o f 1978. P ub. L. N o. 9 5 -5 6 1 , 92 S tat. 2143.\n\n21\n\n\x0c\xc2\xa7431 is unconstitutional and that you are entitled to implement the\nregulations in question in spite of Congress\xe2\x80\x99 disapproval.\nI.\n\nUnder 20 U.S.C. \xc2\xa7 1232(d), your Department is required, when it\npromulgates any final regulation for an \xe2\x80\x9capplicable program,\xe2\x80\x9d 2 to\ntransmit that regulation to the Speaker of the House and to the Presi\xc2\xad\ndent of the Senate. This section further provides:\nSuch final regulation shall become effective not less than\nforty-five days after such transmission unless the Congress\nshall, by concurrent resolution, find that the final regula\xc2\xad\ntion is inconsistent with the Act from which it derives its\nauthority, and disapprove such final regulation.\nIn short, the two Houses of Congress can, without presidential partici\xc2\xad\npation, prevent the Executive from executing substantive law previ\xc2\xad\nously enacted by the Congress with respect to education programs.\nMoreover, \xc2\xa7 1232(d), on its face, purports to delegate to the two\nHouses of Congress the constitutional function historically reserved to\nthe courts to ensure that the execution of the law by the Executive is\nconsistent with the statutory bounds established in the legislative\nprocess.\nIn designing a federal government of limited powers, the Framers of\nthe Constitution were careful to assign the powers of government to\nthree separate, but coordinate branches. They vested legislative power\nin the Congress, the power to execute the laws passed by the Congress\nin the Executive, and the power finally to say what the law is in the\nJudiciary. In ordering these relationships, the Framers were careful, in\nturn, to limit each branch in the exercise of its powers. The power of\nCongress to legislate was not left unrestrained, but was made subject to\nthe President\xe2\x80\x99s veto. Neither was the President\xe2\x80\x99s power to execute the\nlaw left absolute, but Congress was empowered to constrain any execu\xc2\xad\ntive action not committed by the Constitution exclusively to the Execu\xc2\xad\ntive by passing legislation on that subject. Should such legislation be\nvetoed by the President, Congress could use its ultimate authority to\noverride the President\xe2\x80\x99s veto. Both of the political branches were, in\nturn, to be checked by the courts\xe2\x80\x99 power to take jurisdiction to deter\xc2\xad\nmine the existence of legislative authority for executive actions, and to\nreview the acts of both Congress and the Executive for constitution\xc2\xad\n2\nU n d e r Che G E P A , an \xe2\x80\x9c a p p lic a b le p r o g r a m \xe2\x80\x9d is \xe2\x80\x9c a n y p ro g ra m fo r w h ic h an a d m in is tra tiv e h ea d o f\nan e d u c a tio n a g e n c y has a d m in is tra tiv e re sp o n sib ility as p ro v id e d b y la w o r b y d e le g a tio n o r a u th o rity\np u rsu a n t to la w ." 20 U .S .C . \xc2\xa7 1221(b) a n d (c)(1 )(A ). T w o d e p a rtm e n ta l re g u la tio n s re c e n tly d is a p \xc2\xad\np ro v e d b y C o n g re s s w e r e p ro m u lg a te d o rig in a lly by th e C o m m is sio n e r o f E d u c a tio n , u n d e r th e\nfo rm e r D e p a rtm e n t o f H e a lth , E d u c a tio n , a n d W e lfare. T h e C o m m is sio n e r\'s fu n ctio n s, h o w e v e r, w e re\ntra n s fe rre d to y o u u n d e r th e D e p a rtm e n t o f E d u c a tio n O rg a n iz a tio n A c t, \xc2\xa7 301(a)(1), P u b . L. N o . 9 6 88, 93 S tat. 677 (1979). A ll fo u r p ro g ra m s in v o lv e d a re n o w a d m in is te re d u n d e r y o u r a u th o rity .\n\n22\n\n\x0cality. This, in simplest form, is our carefully balanced constitutional\nsystem.\nThe legislative veto mechanism in \xc2\xa7 1232(d) upsets the careful bal\xc2\xad\nance devised by the Framers. Viewed as \xe2\x80\x9clegislative\xe2\x80\x9d acts, legislative\nvetoes authorize congressional action that has the effect of legislation\nbut deny to the President the opportunity to exercise his veto power\nunder Article I, \xc2\xa7 7 of the Constitution. Viewed as interpretive or\nexecutive acts, legislative vetoes give Congress an extra-legislative role\nin administering substantive statutory programs that impinges on the\nPresident\xe2\x80\x99s constitutional duty under Article II, \xc2\xa7 3, of the Constitution\nfaithfully to execute the laws. Viewed as acts of quasi-judicial interpre\xc2\xad\ntation of existing law, legislative vetoes arrogate to the Congress power\nreserved in our constitutional system for the nonpolitical judicial\nbranch. Thus, however they may be characterized, legislative vetoes\nare unconstitutional.\nA. The Presentation Clauses\nAs illustrated by the four recent exercises of legislative veto power\nunder \xc2\xa7 1232(d), legislative veto devices are functionally equivalent to\nlegislation because they permit Congress, one of its Houses, or even, on\noccasion, one or two of its committees, to block the execution of the\nlaw by the Executive for any reason, or indeed, for no reason at all.\nUnder \xc2\xa7 1232(d), the two Houses of Congress could, by passing succes\xc2\xad\nsive concurrent resolutions,/ bring to a halt substantive programs, the\nauthority for which was enacted by prior Congresses with the partici\xc2\xad\npation of the President. Such legislative veto devices cannot stand in\nthe face of the language and history of the Presentation Clauses, Art. I,\n\xc2\xa7 7, els. 2 and 3.\nClause 2 provides that every bill that passes the House and the\nSenate shall, before it becomes law, be presented to the President for\nhis approval or disapproval.3 If disapproved, a bill does not become law\nunless repassed by a two-thirds vote of each House.\nAt the Philadelphia Convention of 1787, the Framers considered and\nexplicitly provided for the possibility that Congress, by passing \xe2\x80\x9c resolu\xc2\xad\ntions\xe2\x80\x9d rather than bills, might attempt to evade the requirement that\nproposed legislation be presented to the President. During the debate\non Article I, \xc2\xa7 7, James Madison observed:\n3 C la u se 2 p ro v id e s, in p e rtin e n t part:\nE v e ry Bill w h ic h shall h a v e passed th e H o u se o f R e p re se n ta tiv e s a n d th e S en ate, sh all,\nb e fo re it b e c o m e a L a w , be p re s e n te d to th e P re sid e n t o f th e U n ite d S tates; I f he\na p p ro v e s h e shall sign it, b u t if n o t h e shall re tu rn it, w ith his O b je c tio n s to th a t H o u se\nin w h ic h it sh all h a v e o rig in a te d , w h o shall e n te r th e O b je c tio n s at la rg e o n th e ir\nJo u rn a l, a n d p ro c e e d to re c o n s id e r it. I f a fte r su ch R e c o n sid e ra tio n tw o th ird s o f th a t\nH o u se sh all a g re e to pass th e Bill, it shall b e sent, to g e th e r w ith th e O b je c tio n s , to th e\no th e r H o u se, by w h ic h it shall lik ew ise b e re c o n s id e re d , an d if a p p r o v e d b y tw o th ird s\no f th a t H ouse* it sh all b e c o m e a L a w .\n\n23\n\n\x0cIf the negative of the President was confined to bills; it\nwould be evaded by acts under the form and name of\nResolutions, votes &c\xe2\x80\x94[and he] proposed that \xe2\x80\x9cor\nresolve\xe2\x80\x9d should be added after \xe2\x80\x9cbill\xe2\x80\x9d . . . , with an excep\xc2\xad\ntion as to votes of adjournment &c.\n2 M. Farrand, Records o f the Federal Convention o f 1787 301 (rev. ed.\n1937).\nMadison\xe2\x80\x99s notes indicate that \xe2\x80\x9cafter a short and rather confused\nconversation on this subject,\xe2\x80\x9d his proposal was at first rejected. How\xc2\xad\never, at the commencement of the following day\xe2\x80\x99s session, Mr. Ran\xc2\xad\ndolph, \xe2\x80\x9chaving thrown into a new form\xe2\x80\x9d Madison\xe2\x80\x99s proposal, renewed\nit. It passed by vote of 9-1. Id., 301-35. Thus, the Constitution today\nprovides, in addition to Clause 2 of \xc2\xa7 7 dealing with the passage of\n\xe2\x80\x9cbills,\xe2\x80\x9d an entirely separate clause, Article I, \xc2\xa7 7, cl. 3, as follows:\nEvery Order, Resolution, or Vote to which the Concur\xc2\xad\nrence of the Senate and House of Representatives may be\nnecessary (except on a question of Adjournment) shall be\npresented to the President of the United States; and before\nthe Same shall take effect, shall be approved by him, or\nbeing disapproved by him, shall be repassed by two-thirds\nof the Senate and House of Representatives, according to\nthe Rules and Limitations prescribed by the Case of a\nBill.\nI believe it is manifest, from the wording of Clause 3 and the history\nof its inclusion in the Constitution as a separate clause apart from the\nclause dealing with \xe2\x80\x9cbills,\xe2\x80\x9d that its purpose is to protect against all\ncongressional attempts to evade the President\xe2\x80\x99s veto pow er.4 The func\xc2\xad\ntion of the Congress in our constitutional system is to enact laws, and\nall final congressional action of public effect, whether or not it is\nformally referred to as a bill, resolution, order or vote, must follow the\nprocedures prescribed in Article I, \xc2\xa7 7, including presentation to the\nPresident for his approval or veto.\n\n*\nT h e P re sid e n t w as g iv e n his v e to p o w e r, in p a rt, in o r d e r th a t h e m ig h t resist an y e n c ro a c h m e n t\no n th e in te g rity o f th e e x e c u tiv e b ra n c h . S e e T he Federalist, N o . 48. H is p a rtic ip a tio n in th e a p p ro v a l\no f leg islatio n is also c ru c ia l b e c a u se o f his u n iq u e c o n s titu tio n a l s ta tu s as re p re s e n ta tiv e o f all th e\np eo p le. A s C h ie f J u stic e T a ft s ta te d in 1926:\nT h e P re s id e n t is a re p re s e n ta tiv e o f th e p e o p le ju s t as th e m e m b ers o f th e S e n a te and\no f th e H o u se a re , a n d it m a y be, at so m e tim es, o n so m e su b jec ts, th a t th e P resid en t\ne le c te d by all th e p e o p le is r a th e r m o re re p re s e n ta tiv e o f th e m all th a n th e m e m b e rs o f\ne ith e r b o d y o f th e L e g is la tu re . . . M yers v. U nited States, 272 U .S. 52, 123 (1926).\n\n24\n\n\x0cB. The Separation o f Powers\n1. Executing the law\nThe principle of separation of powers underlying the structure of our\nconstitutional form of government generally provides for the separation\nof powers among the legislative, executive, and judicial branches, and\nprovides for \xe2\x80\x9cchecks and balances\xe2\x80\x9d to maintain the integrity of each of\nthe three branches\xe2\x80\x99 functions. Generally speaking, the separation of\npowers provides that each of the three branches must restrict itself to\nits allocated sphere of activity: legislating, executing the law, or inter\xc2\xad\npreting the law with finality. This is not to say that every governmental\nfunction is inherently and of its very nature either legislative, executive,\nor judicial. Some activity might be performed by any of the three\nbranches\xe2\x80\x94and in that situation it is up to Congress to allocate the\nresponsibility. See, e.g., Wayman v. Southard, 10 Wheat. 1, 42-43, 46\n(1825) (Chief Justice Marshall). Once Congress, by passing a law, has\nperformed that function of allocating responsibility, however, the sepa\xc2\xad\nration of powers requires that Congress cannot control the discharge of\nthose functions assigned to the Executive or the Judiciary, except\nthrough the plenary legislative process of amendment and repeal.\nThe underlying reason, well stated by James Madison, is that other\xc2\xad\nwise the concentration of executive and legislative power in the hands\nof one branch might \xe2\x80\x9cjustly be pronounced the very definition of\ntyranny.\xe2\x80\x9d The Federalist, No. 47, at 324 (Cooke ed. 1961). The shifting\nof executive power to the legislative branch which would be occa\xc2\xad\nsioned by these legislative veto devices is, I believe, undeniable; the\nconcentration of this blended power is precisely what the Framers\nfeared and what they set about to prevent.\nThe Constitution\xe2\x80\x99s overall allocations of power may not be altered\nunder the guise of an assertion by the Congress of its power to pass\nlaws that are \xe2\x80\x9cnecessary and proper for carrying into Execution . . .\nPowers vested by [the] Constitution in the Government of the United\nStates, or in any Department or Officer thereof,\xe2\x80\x9d Art. I, \xc2\xa7 8, cl. 18.5 As\nthe Supreme Court made clear in Buckley v. Valeo, 424 U.S. I (1976),\nthe exercise of power by Congress pursuant to the Necessary and\nProper Clause is limited both by other express provisions of the Consti\xc2\xad\ntution and by the principles of separation of powers.\nIn Buckley, it was argued that officers of the Congress could, under\nthe Necessary and Proper Clause, appoint commissioners of the Federal\n5\nIt is fu n d am en tal to o u r c o n c e p t o f lim ited fed era l g o v e rn m e n t th a t p o w e r e x e rc ise d by th e\nleg islativ e, e x e c u tiv e a n d ju d ic ia l b ra n c h e s be tra c e d to a p ro v isio n o f th e C o n s titu tio n o r to a sta tu te\nw h ic h is ex p ressly o r im p lie d ly a u th o riz e d b y a p ro v is io n o f th e C o n s titu tio n . T h u s , a s o u rc e o f\na u th o rity fo r C o n g re s s to ex e rc ise p o w e r u n d e r leg islativ e v e to d e v ic e s m ust b e fo u n d in th e\nC o n s titu tio n in o r d e r fo r th a t a u th o rity to be re c o g n iz e d as le g itim ate. A s w e d e m o n s tra te b elo w , th e\nN e c e s s a ry an d P ro p e r C la u se d o e s n o t g r a n t \'s u c h a u th o rity ; n o r d o e s a n y o th e r p ro v is io n o f th e\nC o n stitu tio n .\n\n25\n\n\x0cElection Commission, notwithstanding the fact that Article II, \xc2\xa7 2,\nclause 2 of the Constitution placed the appointment power in the\nPresident. With regard to the relationship between the exercise of\npower under the Necessary and Proper Clause and other provisions of\nthe Constitution, the Court stated the rule as follows:\nCongress could not, merely because it concluded that\nsuch a measure was \xe2\x80\x9cnecessary and proper\xe2\x80\x9d to the dis\xc2\xad\ncharge o f its substantive legislative authority, pass a bill of\nattainder or ex post facto law contrary to the prohibitions\ncontained in section 9 of Art. I. No more may it vest in\nitself, or in its officers, the authority to appoint officers of\nthe United States when the Appointments Clause by clear\nimplication prohibits it from doing so.\n424 U.S. at 135.\nThe Constitution establishes the President\xe2\x80\x99s veto power as clearly as\nit establishes the appointment power or prohibits bills of attainder and\nex post facto laws. Under Buckley, the only reasonable implication of the\nFramers\xe2\x80\x99 inclusion of Article I, \xc2\xa7 7, clause 3 in the Constitution is that\nthe Necessary and Proper Clause is not a source of power for evasion\nof these specific limitations through the enactment of legislative veto\ndevices. I would add that, in reaching its holding in Buckley, the Court\nconsidered and relied upon earlier cases that seem most relevant to the\nconstitutionality of legislative veto devices. In quoting from Myers v.\nUnited States, 272 U.S. 52 (1926), the Court recognized the relationship\nbetween the grant of executive power to the President and the issue\nbefore it. 424 U.S. at 135-136.6 I believe that Buckley and the cases\nrelied on by the Buckley Court foreclose arguments that the Necessary\nand Proper Clause grants Congress the power to provide for legislative\nveto devices.\nBecause to characterize the power exercised by the two Houses\nunder \xc2\xa7 1232(d) as \xe2\x80\x9clegislation\xe2\x80\x9d would necessarily require Congress to\nrespect the President\xe2\x80\x99s veto power by presenting its resolutions for his\napproval, it is necessary for proponents of such power to deny that the\npower is \xe2\x80\x9clegislation\xe2\x80\x9d in the constitutional sense. They argue instead\nthat the device is a means for Congress to oversee the execution of the\n6\nT h e C o u rt w e n t o n , in h o ld in g th e a p p o in tm e n t o f F e d e ra l E le c tio n C o m m issio n m e m b ers by\no ffic e rs o f C o n g re s s to be u n c o n s titu tio n a l, to q u o te th e fo llo w in g la n g u a g e fro m its e a rlie r d ec isio n in\nS p rin g er v. P hilippine Islands. 227 U .S . 189, 202 (1928):\nL e g isla tiv e p o w e r, as d istin g u ish e d fro m e x e c u tiv e p o w e r, is th e a u th o r ity to m ak e\nlaw s, but n o t to e n fo rc e th e m o r a p p o in t th e a g e n ts c h a rg e d w ith th e d u ty o f su ch\ne n fo rc e m e n t. T h e la tte r a r e e x e c u tiv e fu n ctio n s. It is u n n e c e ss a ry to e n la rg e fu rth e r\nu p o n th e g e n e ra l s u b je c t, sin ce it has so re c e n tly re c e iv e d th e full c o n s id e ra tio n o f this\nc o u rt. M yers v. U nited States. . . . .\nN o t h a v in g th e p o w e r o f a p p o in tm e n t, unless ex p ressly g ra n te d o r in c id e n ta l to its\np o w e rs , th e le g is la tu re c a n n o t e n g ra ft e x e c u tiv e d u tie s u p o n a le g isla tiv e o ffice, since\nth a t w o u ld b e to u su rp th e p o w e r o f a p p o in tm e n t by in d ire c tio n , th o u g h th e ca se\nm ig h t be d iffe re n t if th e a d d itio n a l d u tie s w e re d e v o lv e d u p o n an a p p o in te e o f th e\nE x e cu tiv e.\n\n26\n\n\x0claw by the Executive, in aid of undoubted constitutional powers to pass\nlegislation and appropriations. Such an argument, however, cannot\nwithstand scrutiny. Without a legislative veto, the regulations of your\nDepartment, unless invalidated by a court, would have the force of\nlaw. In depriving them of that force, the necessary effect of a legisla\xc2\xad\ntive veto is to block further execution of a statutory program until the\nExecutive promulgates further regulations in compliance with the cur\xc2\xad\nrent views of a Congress that may well be different from the Congress\nthat enacted the substantive: law.7 The difference between this kind of\ncongressional \xe2\x80\x9coversight\xe2\x80\x9d and the legitimate oversight powers of Con\xc2\xad\ngress in their effect on the constitutional allocation of powers could not\nbe more profound. By its nature, for example, the exercise of a legisla\xc2\xad\ntive veto would be beyond judicial review because the exercise of such\npowers could be held to no enforceable standards. In exercising its\nveto, I believe it clear that Congress is dictating its interpretation of the\npermissible bounds for execution of an existing law; a result that can be\naccomplished only by legislation.\nThe foregoing discussion demonstrates the flaw in the argument,\noccasionally made, that the doctrine of separation of powers protects\nthe executive branch only in areas that are inherently executive, and\nthat Congress may reserve to itself control over activities entrusted to\nthe Executive which are not \xe2\x80\x9ctruly\xe2\x80\x9d executive in nature. This reasoning\noverlooks the basic truth that there are few activities that are clearly\nexecutive, legislative, or judicial. The first two categories, in particular,\noverlap to an enormous extent. Much, if not indeed most, executive\naction can be the subject of legislative prescription. To contend, there\xc2\xad\nfore, that Congress can control the Executive whenever the Executive\nis performing a function that Congress might have undertaken itself is\nto reduce the doctrine of separation of powers to a mere shadow.\nThe test is not whether an activity is inherently legislative or execu\xc2\xad\ntive but whether the activity has been committed to the Executive by\nthe Constitution and applicable statutes. In other words, the Constitu\xc2\xad\ntion provides for a broad sweep of possible congressional action; but\nonce a function has been delegated to the executive branch, it must be\nperformed there, and cannot be subjected to continuing congressional\ncontrol except through the constitutional process of enacting new legis\xc2\xad\nlation.\n2. Interpreting the law\nSection 1232(d) authorizes disapproval of a regulation by concurrent\nresolution if Congress \xe2\x80\x9cfindfs] that the final regulation is inconsistent\n7 In s u c h a situ a tio n , th e E x e c u tiv e , as a p ra c tic a l m a tte r, m ay b e g iv in g u p a m e asu re o f a u th o r ity\ng ra n te d by th e sta tu te b ein g a d m in is te re d w h ic h th e c o u rts in a n a p p ro p ria te c a se w o u ld h a v e fo u n d to\nh av e b een d e le g a te d to th e E x e c u tiv e , if C o n g re s s h ad not in te rv e n e d . S u c h a d im in u tio n o f a u th o r ity\nm ust, in m y v ie w , b e v ie w e d a n a ly tic a lly as a rep ea l o f th e su b sta n tiv e s ta tu te to th a t e x ten t.\n\n27\n\n\x0cwith the Act from which it derives its authority . . .\nThat section,\non its face, purports to vest in the two Houses of Congress an extra\xc2\xad\nlegislative power to perform the function reserved by the Constitution\nto the courts of determining whether a particular executive act is\nwithin the limits of authority established by an existing statute.\xc2\xae It is\nclear that the President constitutionally can be overruled in his in\xc2\xad\nterpretation of the law, by the courts and by the Congress. But the\nCongress can do so only by passing new legislation, and passing it over\nthe President\xe2\x80\x99s veto if necessary. That is the constitutional system.\nProponents of the legislative veto, however, argue that such devices\nactually fortify the separation of powers by providing Congress with a\ncheck on an agency\xe2\x80\x99s exercise of delegated power. No doubt congres\xc2\xad\nsional review provides a check on agency action, just as committee\nreview or committee chairman review would provide a check. But such\nreview involves the imposition on the Executive of a particular in\xc2\xad\nterpretation of the law\xe2\x80\x94the interpretation of the Congress, or one\nHouse, or one committee, or one chairman\xe2\x80\x94without the check of the\nlegislative process which includes the President\xe2\x80\x99s veto. In that case\nCongress is either usurping the power of the President to execute the\nlaw, or of the courts to construe it; or Congress is legislating. If it is\nlegislating, the Constitution is explicit that the President must have the\nopportunity to participate in that process by vetoing the legislation.\nII.\n\nBecause it is my opinion that \xc2\xa7 1232(d) is unconstitutional, it is\nnecessary for me to consider whether that provision is severable from\nthe underlying grants of statutory authority upon which the regulations\npromulgated by you were based. Section 1232(d) was enacted in 1974.\nWhen the various authorities for the four regulations disapproved by\nCongress were enacted in the Education Amendments of 1978, Con\xc2\xad\ngress gave no indication that the substantive rulemaking powers dele\xc2\xad\ngated to you were to be extinguished if the legislative veto device in\n\xc2\xa7431 were to be found unconstitutional. Thus, I conclude that \xc2\xa7431 is\nseverable from this basic grant of substantive power. See, e.g., Champlin\n8T h e ro le o f th e J u d ic ia ry in re q u irin g c o n fo rm a n c e by th e tw o p o litic al b ra n c h e s to co n stitu tio n a l\ns ta n d a rd s a n d in c o n fin in g th e E x e c u tiv e to e x e c u tio n o f th e la w w ith in th e b o u n d s esta b lish ed by\ns ta tu te is to o fam iliar to re q u ire e la b o ra tio n . It is th e re fo re n o t su rp ris in g th a t th e S u p re m e C o u rt has\nc o n s is te n tly ta k en th e p o sitio n th a t \xe2\x80\x9c th e v ie w s o f a su b se q u en t C o n g re s s fo rm a h a z a rd o u s basis fo r\nin fe rrin g th e in ten t o f an e a rlie r o n e/* th u s d e n y in g an y C o n g re s s a n y b in d in g ro le in th e in te rp re ta tio n\no f an e a rlie r C ongress* ac ts. U nited S ta te s v. Philadelphia N a tio n a l B a n k, 374 U .S. 321, 3 4 8 -4 9 (1963),\nq u o tin g U nited S ta tes v. Price, 361 U .S. 304, 313 (1960). T h e C o u rt, in ta k in g th is p o sitio n , has\nre c o g n iz e d b o th th e p o litic al n a tu re o f th e le g islativ e p ro c e s s a n d d iffe re n c e s b e tw e e n th e fu n ctio n al\nc o m p e te n c ie s o f th e c o u r ts an d C o n g re ss. S ee U nited S ta te s v. U n ited M in e W orkers o f A m erica, 330\nU .S. 258, 282 (1947). I n o te th a t in th e se th re e ca ses in w h ic h th e C o u rt c a u tio n e d ag ain st p e rm ittin g\nth e v ie w s o f a su b se q u en t C o n g re s s to in flu e n c e in te rp re tin g th e in ten t o f an e a rlie r C o n g re s s in\np assing a p a rtic u la r sta tu te , th e C o u rt w as face d w ith s itu a tio n s in w h ic h th e su b se q u en t ex p ressio n o f\nC o n g re s s \' v ie w c a m e in th e c o n te x t o f th e p assag e o f le g islatio n . T h u s , in th o s e cases, e v e n an y\nm a rg in al re le v a n c e o f th e su b se q u en t c o n g re s s io n a l e x p re ssio n w o u ld h a v e b een subject, to th e P re s i\xc2\xad\nd e n t\'s v e to u n d e r A rtic le I, \xc2\xa7 7.\n\n28\n\n\x0cRefining Co. v. Corporation Commission o f Oklahoma, 286 U.S. 210, 234\n(1932), quoted with approval in Buckley v. Valeo, supra, 424 U.S.\nat 108.\nIII.\n\nWithin their respective spheres of action the three branches of gov\xc2\xad\nernment can and do exercise judgment with respect to constitutional\nquestions, and the judicial branch is ordinarily in a position to protect\nboth the government and the citizenry from unconstitutional action,\nlegislative or executive; but only the executive branch can execute the\nstatutes of the United States. For that reason alone, the Attorney\nGeneral must scrutinize with caution any claim that he or any other\nexecutive officer may decline to defend or enforce a statute whose\nconstitutionality is merely in doubt. Any claim by the Executive to a\npower of nullification, even a qualified power, can jeopardize the equi\xc2\xad\nlibrium established by our constitutional system.\nAt the same time, the Executive\xe2\x80\x99s duty faithfully to execute the law\nembraces a duty to enforce the fundamental law set forth in the Consti\xc2\xad\ntution as well as a duty to enforce the law founded in the Acts of\nCongress, and cases arise in which the duty to the one precludes the\nduty to the other. In rendering this opinion on the constitutionality of\n\xc2\xa7 431, I have determined that the present case is such a case.\nSection 431 intrudes upon the constitutional prerogatives of the Ex\xc2\xad\necutive. To regard these concurrent resolutions as legally binding\nwould impair the Executive\xe2\x80\x99s constitutional role and might well fore\xc2\xad\nclose effective judicial challenge to their constitutionality.9 More impor\xc2\xad\ntant, I believe that your recognition of these concurrent resolutions as\nlegally binding would constitute an abdication of the responsibility of\nthe executive branch, as an equal and coordinate branch of government\nwith the legislative branch, to preserve the integrity of its functions\nagainst constitutional encroachment. I, therefore, conclude that you are\nauthorized to implement these regulations.\nSincerely.\nB e n ja m\n\nin\n\nR. C\n\niv il e t t i\n\n9 T h e h is to ry o f so -called \xe2\x80\x9c le g islativ e v e to \xe2\x80\x9d d e v ic e s, o f w h ic h \xc2\xa7 4 3 1 o f th e G E P A is o n e, illu stra te s\nth e d ifficu lty in a c h ie v in g ju d ic ia l reso lu tio n o f su ch an issue. A lth o u g h C o n g re s s e n a c te d th e first\nsu c h m ech an ism in 1932, o n ly a few re p o rte d ca ses h a v e p o te n tia lly in v o lv e d th e c o n s titu tio n a l\nq u estio n in h e ren t in th e le g islativ e v e to , a n d a c o u rt has re a c h e d th e issue o n ly o n c e . In A tk in s v.\nU n ited States. 556 F .2 d 1028 (C t. C l. 1977), cert, denied. 434 U .S. 1009 (1978), th e C o u r t o f C la im s\nh eld , fo u r-to -th re e , th a t th e p ro v is io n o f th e F e d e ra l S ala ry A c t o f 1967, 2 U .S .C . \xc2\xa7 359(1)(B ), w h ic h\np erm its o n e h o u se o f C o n g re s s to d is a p p ro v e th e P re s id e n t\'s p ro p o s e d p ay s c h e d u le u n d e r th e A c t, is\nn o t u n c o n stitu tio n a l, a n d th a t th e S e n a te \'s v e to o f a p ro p o s e d ju d ic ia l s a la ry in c re a se w as th e re fo re\nlaw fu l. T h is D e p a rtm e n t, re p re s e n tin g th e U n ite d S tates, a rg u e d th a t th e v e to w as u n c o n s titu tio n a l,\nb u t th a t, b ec au se th e v e to a u th o rity w as n o t se v e ra b le fro m th e re m a in d e r o f th e S ala ry A c t, th e\np lain tiffs h ad n o rig h t to a d d itio n a l p ay. T h e la tte r v ie w w as s u sta in e d in M c C o rk le v. U n ite d States,\n559 F .2 d 1258 (4th C ir. 1977), cert, denied, 434 U .S . 1011 (1978).\nO th e r cases in w h ic h th e v a lid ity o f a le g isla tiv e v e to d e v ic e h as b een a rg u e d in c lu d e C h a d h a v.\nIm m ig ra tio n a n d N a tu ra liza tio n Service. N o. 77-1 7 0 2 (9 th C ir.. a rg u e d A p ril 10, 1978); a n d C la rk v.\nValeo. 599 F .2 d 642 (D .C . C ir.) a ff d . 431 U .S. 950 (1977) (issue n o t rip e fo r d e te rm in a tio n ).\n\n29\n\n\x0c'


b'Peace Corps Employmmemd: Policies for Pregmamlt Volumteeirs\nT he Pregnancy Discrimination A ct (PD A ) would prohibit the Peace Corps from imple\xc2\xad\nmenting an across-the-board policy of terminating or reassigning volunteers solely\nbecause they become pregnant while assigned overseas, or because they have an\nabortion. A decision to terminate a pregnant volunteer must be based on a case-by-case\nassessment of the volunteer\xe2\x80\x99s ability to function effectively in her assignment while\npregnant or after delivery of th e child.\nU nder the PD A , the fact that a volunteer w ho has been terminated because o f pregnancy\nchooses to have an abortion cannot be considered in a decision on her reapplication for\nservice.\nE ven though a specific restriction in the Peace Corps\xe2\x80\x99 appropriation prohibits the use of\nits funds to perform abortions, so that the Peace Corps may not pay for the cost o f an\nabortion for one o f its volunteers, the PD A would require the Peace Corps to continue\nto pay travel and per diem expenses to volunteers evacuated to have an abortion, as\nlong as it provides such compensation to other volunteers evacuated for comparable\nmedical conditions. The Peace Corps must also allow volunteers to draw upon their\naccumulated readjustment allowance to pay for an abortion, if similar access is allowed\nfor other medical expenses.\n\nNovember 20, 1981\nMEMORANDUM OPINION FOR TH E GENERAL COUNSEL,\nPEACE CORPS\nThis responds to your request for this Office\xe2\x80\x99s views on several\nquestions about the Peace Corps\xe2\x80\x99 policies on hiring and reinstatement of\nvolunteers who become pregnant while overseas and of pregnant vol\xc2\xad\nunteers who elect to have an abortion, and on reimbursement of travel\nand per diem expenses to volunteers evacuated to the United States for\nthe purpose of obtaining an abortion. We conclude that the Pregnancy\nDiscrimination Act would prohibit the Peace Corps from implementing\nany across-the-board policy of terminating volunteers who become\npregnant while overseas or pregnant volunteers who elect to have\nabortions, but that in some limited circumstances termination or reas\xc2\xad\nsignment may be appropriate, on an ad hoc basis, because of the unique\ndemands and constraints of Peace Corps service. We do not believe,\nhowever, that the Peace Corps may consider the fact that a volunteer\nwho had been terminated because of pregnancy subsequently elected to\nhave an abortion in reviewing that individual\xe2\x80\x99s application for reinstate\xc2\xad\nment. With respect to the funding of abortion-related expenses, we\nconclude that the Peace Corps is not barred from using appropriated\nfunds to pay travel costs and a per diem to volunteers who are evacu\xc2\xad\n350\n\n\x0cated for the purpose of obtaining an abortion, and, in fact, that the\nPregnancy Discrimination Act requires the Peace Corps to continue\npaying those costs, so long as travel and per diem expenses are paid to\nvolunteers evacuated for other comparable medical disabilities.\nI. Background\n\nCurrent Peace Corps policy provides for an ad hoc determination\nwhether volunteers who become pregnant or pregnant volunteers who\nelect to have an abortion will be allowed to remain in their assigned\ncountries. In determining whether a pregnant volunteer (including her\nspouse) should be allowed to remain in service, the Country Director\nlooks at a variety of factors, including health hazards to the mother and\nchild, the ability of the parents to support the child, and the prospects\nfor continued effectiveness by the parents. A pregnant volunteer who\nelects to have an abortion may be separated, or returned to duty if the\nCountry Director determines she will be able to serve effectively under\nthe circumstances. Pregnant volunteers, volunteers with dependent chil\xc2\xad\ndren, and volunteers who have had abortions while in service do serve\nin the Peace Corps, although individuals who are pregnant or who\nhave dependent children are not encouraged to become volunteers.\nVolunteers who choose to have an abortion are generally evacuated to\nthe United States for the procedure. The Peace Corps pays travel\nexpenses and a per diem to those volunteers who have an abortion, as it\ndoes for volunteers evacuated for other medical or surgical treatment.1\nBecause of a prohibition in the Peace Corps\xe2\x80\x99 current appropriations\nauthority against the use of appropriated funds to pay for abortions\nexcept where the life of the woman would be endangered or in cases of\nreported rape or incest, the Peace Corps does not now pay the costs of\nthe abortion procedure itself. Volunteers may, however, draw upon\naccumulated readjustment allowance funds to pay for abortion proce\xc2\xad\ndures.2\nYou have asked us to address the following questions:\n1. Can the Peace Corps terminate any volunteer who be\xc2\xad\ncomes pregnant while a volunteer because of preg\xc2\xad\nnancy? If so, could such a policy be limited to single\nvolunteers?\n1Payment o f medical and related expenses for Peace Corps volunteers is authorized by 22 U.S.C.\n\xc2\xa7 2504(e) (1976), which provides that \xe2\x80\x9c(vjolunteers shall receive such health care during their service\n. . . as the President may deem necessary or appropriate . .\n2 Under the Peace Corps Act, codified at 22 U.S.C. \xc2\xa72501-2523 (Supp. Ill 1979), volunteers are\nentitled to receive a readjustment allowance of $125 per month, payable on return of the volunteer to\nthe United States. 22 U.S.C. \xc2\xa7 2504(c). Amounts accrued as readjustment allowance may be paid to the\nvolunteer, members o f his family, or others during the period o f the volunteer\xe2\x80\x99s service, \xe2\x80\x9cunder such\ncircumstances as the President may determine.\xe2\x80\x9d T he readjustment allowance is transferred on a\nmonthly basis, to a noninterest bearing account until payment to the volunteer. For income tax\npurposes, the allowance is deemed paid to the volunteer when transferred to the fund from which the\nreadjustment allowance is payable. Id.\n\n351\n\n\x0c2.\n\nCan the fact that a volunteer has a husband in-country\nbe cause to allow a pregnant volunteer to remain in that\nstatus longer than she would if she were single?\n3. Does payment for travel for a volunteer to return to\nWashington and per diem while here, leaving the pay\xc2\xad\nment for the abortion procedure up to the volunteer,\ncomply with the legislative restriction on Peace Corps\nappropriations?\n4(a). If a volunteer is terminated, asked to resign due to\npregnancy, and subsequently obtains an abortion, can\nthat fact be considered if she applies for readmission to\nthe Peace Corps as a volunteer?\n(b). Since a normal term for volunteers is two years, if the\nanswer to (a) is \xe2\x80\x9cno,\xe2\x80\x9d could the fact that a volunteer\nresigned more than once to have an abortion be consid\xc2\xad\nered upon her request for readmission?\nII. Requirements of the Pregnancy Discrimination Act\n\nThe Peace Corps\xe2\x80\x99 termination, reinstatement, and benefits policies for\npregnant volunteers or volunteers who have an abortion must comply\nwith the Pregnancy Discrimination Act (PDA), 42 U.S.C. \xc2\xa7 2000e(k)\n(Supp. Ill 1979). The PDA amended Title V II of the Civil Rights Act\nof 1964, 42 U.S.C. \xc2\xa72000e-16 (1976), to clarify Congress\xe2\x80\x99 intent that\nthe sex discrimination prohibited by Title V II includes discrimination\non the basis of \xe2\x80\x9cpregnancy, childbirth or related medical conditions.\xe2\x80\x9d 3\nThe PDA provides that \xe2\x80\x9cwomen affected by pregnancy, childbirth or\nrelated medical conditions shall be treated the same for all employmentrelated purposes, including receipt of benefits under fringe benefit pro\xc2\xad\ngrams, as other persons not so affected but similar in their ability or\ninability to work . . . .\xe2\x80\x9d The prohibition against discrimination does\nnot require an employer to pay \xe2\x80\x9chealth insurance benefits\xe2\x80\x9d for abor\xc2\xad\ntions, except where the life of the mother would be endangered if the\nfetus were carried to term, or where medical complications arise from\nan abortion.\nExcept for the express language allowing an employer to refuse to\npay health benefits for abortion, the prohibition against discrimination\ncontained in the PDA is to be read broadly to extend to \xe2\x80\x9cthe whole\nrange of matters concerning the child-bearing process,\xe2\x80\x9d including preg\xc2\xad\nnancy, miscarriage, abortions, and childbirth, and to the whole range of\nemployment policies that can adversely affect pregnant workers, includ\xc2\xad\ning \xe2\x80\x9chiring, reinstatement, termination, disability benefits, sick leave,\n8 T he Pregnancy Discrimination Act applies to \xe2\x80\x9c volunteers serving under . . . the Peace Corps\nA ct\xe2\x80\x9d by virtue o f \xc2\xa7 12 of the Domestic Volunteer Services A ct, as amended, 42 U.S.C. \xc2\xa7 5057(c)(1),\nw ith the exception o f provisions affording aggrieved individuals a right of appeal to the M ent Systems\nProtection Board.\n\n352\n\n\x0cmedical benefits, seniority and all other conditions covered by Title\nVII.\xe2\x80\x9d See H.R. Rep. No. 948, 95th Cong., 2d Sess., reprinted in 1978\nU.S. Code Cong. & Ad. News 4749, 4752-53 (1978 House Report).\nAny employment practice or policy that treats pregnant employees\ndifferently from other disabled workers, with the exception of payment\nof health insurance benefits for an abortion, is a prima facie violation of\nthe Civil Rights Act. See Harriss v. Pan American World Airways, Inc.,\n649 F.2d 670, 673 (9th Cir. 1980); see generally Dothard v. Rawlinson,\n433 U.S. 321, 329 (1977).\nThe courts have held that the prima facie test applies both to facially\nneutral policies or practices which have a disparate impact on pregnant\nemployees, and policies or practices that single out pregnant employees\nfor disparate treatment. See, e.g., Harriss, 649 F.2d at 673. An employer\nmay show that facially neutral policies or practices are justified by and\nbased upon a nondiscriminatory business purpose, although the em\xc2\xad\nployee may rebut that showing if other devices that do not have a\nsimilar discriminatory effect would serve that business purpose. See\nGriggs v. Duke Power Co., 401 U.S. 424, 431 (1971); Dothard, 433 U.S.\nat 329. Where a policy or practice overtly discriminates against preg\xc2\xad\nnant employees, it may be justified only if the employer can show that\nthe discrimination is \xe2\x80\x9ca bona fide occupational qualification reasonably\nnecessary to the normal operation of that particular business or enter\xc2\xad\nprise.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2000e-2(e). The federal courts have consistently\nstated that this exception is \xe2\x80\x9cextremely narrow\xe2\x80\x9d and requires the em\xc2\xad\nployer to demonstrate, for example, that the discrimination is \xe2\x80\x9creason\xc2\xad\nably necessary to the essence of his business,\xe2\x80\x9d 4 that he has a \xe2\x80\x9cfactual\nbasis for believing that all or substantially all [pregnant] women would\nbe unable to perform safely and efficiently the duties of the job in\xc2\xad\nvolved . . . ,\xe2\x80\x9d 5 or that it would be \xe2\x80\x9cimpossible or highly impractical to\ndeal with [pregnant women] on an individualized basis.\xe2\x80\x9d 6 See Harriss,\n649 F.2d at 676; see generally Dothard, 433 U.S. at 334.\nIt is important to note that the PDA does not require an employer to\ntreat pregnant employees in any particular manner or to provide par\xc2\xad\nticular benefits for pregnant employees. Rather, it prohibits only dis\xc2\xad\ncriminatory treatment that is not fully justified by the particular require\xc2\xad\nments of the job. Women disabled due to pregnancy, childbirth, or\nrelated medical conditions must be provided the same benefits and same\nemployment consideration as those provided to other similarly disabled\nworkers, but need not be provided any greater benefits or consider\xc2\xad\nation. 1978 House Report at 4, 1978 U.S. Code Cong. & Ad. News at\n4752. Thus, the initial question is whether the Peace Corps\xe2\x80\x99 current\n4 See Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 236 (5th Cir. 1976); Diaz v. Pan American\nWorld Airways, Inc., 442 F .2 d 385, 388 (5th Cir. 1971), cert, denied, 404 U S. 950 (1971).\nhSee Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 235 (5th Cir. 1969); Diaz, 442 F.2d at 388.\n6See Weeks, 408 F .2d a t 235 n.5.\n\n353\n\n\x0cpolicies or the possible changes raised by your questions would be\nconsistent with the treatment of other volunteers who are similarly\naffected in their ability to perform the major functions of their assign\xc2\xad\nments. If any o f those policies treats volunteers differently or has the\neffect of treating volunteers differently because of pregnancy (including\nvolunteers who have abortions), it would be a prima facie violation of\nthe PDA. The second level of inquiry would then be whether the\ndiscrimination is justified as a bona fide occupational qualification (if\nthe policy discriminates on its face) or by business necessity (if the\npolicy is facially neutral but discriminatory in impact).\nHI. Temmmatioin aad Reinstatement\n\nUnder current policy, a Peace Corps volunteer may be separated\nfrom service before the end of his or her term for a variety of reasons,\nmost of which involve a discretionary determination by the Country\nDirector that the volunteer\xe2\x80\x99s continued effectiveness has been impaired.\nA volunteer may be terminated, for example, for use of illegal drugs or\nfor excessive use of alcohol. Marriage is a ground for early termination\nin some instances, for example, if the volunteer marries another volun\xc2\xad\nteer whose term has ended, or if a volunteer marries a dependent nonvolunteer and it is determined that the volunteer will be unable to\nsupport his or her spouse while in service. Marital separation or di\xc2\xad\nvorce is generally cause for reassignment of one volunteer, or, if no\nother suitable assignment is available, for termination of one volunteer.\nA volunteer may also be terminated for failure to adjust to the condi\xc2\xad\ntions of the assignment, unacceptable personal conduct, inadequate job\nperformance, or lack of a suitable assignment. As noted above, a preg\xc2\xad\nnant volunteer may be separated from service if the Country Director\ndetermines that continued service could present a health hazard for the\nmother or child, if the volunteer will be unable to support the family,\nor generally if having a child will impair the volunteer\xe2\x80\x99s continued\neffective service. A volunteer who obtains an abortion may be termi\xc2\xad\nnated if the Country Director determines she will not be able to serve\neffectively.\nA. Pregnancy\n\nWe believe that, so long as a decision to terminate a pregnant volun\xc2\xad\nteer is based on an assessment of the volunteer\xe2\x80\x99s ability to function\neffectively in her assignment after delivery of the child, the Peace\nCorps\xe2\x80\x99 current policy allowing discretionary termination of pregnant\nvolunteers does not violate the PDA. We base this conclusion on our\nunderstanding that the same considerations are applied to any volunteer\nwho has a dependent, including volunteers who have dependent chil\xc2\xad\ndren or spouses prior to entering the Corps, and volunteers who marry\ndependent spouses during service. The application of this policy, on an\n354\n\n\x0cad hoc basis, would thus not have a disparate impact on volunteers who\n\nbecome pregnant during their term overseas, and would not be dis\xc2\xad\ncriminatory under the PDA. To the extent that the Peace Corps con\xc2\xad\nsiders the marital status of any volunteer who has dependents as rele\xc2\xad\nvant to the volunteer\xe2\x80\x99s continued effectiveness in the assignment, we\nbelieve the Peace Corps may take into consideration a pregnant volun\xc2\xad\nteer\xe2\x80\x99s marital status, and whether her spouse accompanies her in her\nassignment, in deciding whether termination is appropriate. Similarly, if\nthe Peace Corps as a matter of policy or practice reassigns or termi\xc2\xad\nnates volunteers if continued service in a particular assignment would\npose a health threat to the volunteer or his or her children, the Peace\nCorps may reassign or terminate a pregnant volunteer if a bona fide\nthreat to her health or to the health of the child exists.\nUnder limited circumstances, we believe the Peace Corps could ter\xc2\xad\nminate or reassign a volunteer solely because she is pregnant, independ\xc2\xad\nent of the considerations outlined above. We can foresee the possibility\nthat in individual cases a volunteer would not be able to function\nadequately during her pregnancy because of cultural biases in her\nassigned country. Because of the unique situation of Peace Corps vol\xc2\xad\nunteers, who must live and work in the culture of their assigned\ncountries, in such a situation we believe the Peace Corps could exercise\nits discretion based on the facts of a particular case and remove the\nvolunteer from her assignment. See, e.g., Dothard, 433 U.S. at 334\n(1977).7\nWhile the Peace Corps could terminate pregnant volunteers on a\ncase-by-case basis for the reasons outlined above, we do not believe\nthat the Peace Corps could, as a matter of overall policy, terminate\npregnant volunteers solely because they become pregnant. Some recent\ndecisions of lower federal courts have upheld policies requiring women\nto take mandatory leave beginning in the early stages of pregnancy, but\nthose decisions turn on the narrow ground that continued employment\nof the woman during her pregnancy could pose a safety risk to co\xc2\xad\nworkers and the public.8 We have not been informed of a comparable\nfactual basis that would justify an across-the-board policy of terminat\xc2\xad\ning pregnant volunteers. In fact, the Peace Corps\xe2\x80\x99 historic experience\nwith pregnant volunteers who remain in service might undermine, if\n7We would caution that the Peace Corps should remain evenhanded in application o f its policies.\nThus, to the extent that the Peace Corps can accommodate volunteers with dependents, for example\nby choice o f assignments or personal leave, or reassigns volunteers if necessary to avoid cross-cultural\nconcerns, it must extend the same consideration to volunteers who become pregnant and have children\nwhile in service.\n8 These cases have involved policies o f major airlines requiring stewardesses to take mandatory\nleave upon learning of their pregnancy, or after the first few months o f pregnancy. See, e.g., Harriss,\n649 F.2d at 677; Burwell v. Eastern A ir Lines. Inc.. 633 F.2d 361, 370 (4th Cir 1980), cert, denied, 450\nU.S. 965 (1981); Dothard, 433 U.S at 336-37 (\xe2\x80\x9c male-only\xe2\x80\x9d requirement for prison guards in \xe2\x80\x9ccontact"\npositions allowed because of unique security and control problems in Alabama prisons).\n\n355\n\n\x0cnot preclude, an argument that such a policy is justified, even by the\nunique demands of the Peace Corps.\nB. Abortion\n\nWe doubt that the Peace Corps would be able to make a showing\nunder the PDA that would permit it to terminate a volunteer because\nshe elects to have an abortion, so long as other volunteers who undergo\nsurgery of a comparable nature are permitted to return to their assigned\ncountries. The legislative history of the PDA and implementing guide\xc2\xad\nlines promulgated by the Equal Employment Opportunity Commission\n(EEOC) state in categorical terms that a woman\xe2\x80\x99s decision to have an\nabortion cannot be the basis for termination of employment. See House\nReport at 7, 1978 U.S. Code Cong. & Ad. News at 4755 (\xe2\x80\x9c[N]o\nemployer may, for example, fire . . . a woman simply because she has\nexercised her rights to have an abortion.\xe2\x80\x9d); 29 C.F.R. Part 1604 (Ap\xc2\xad\npendix). Moreover, the experience of the Peace Corps with volunteers\nwho have had abortions and have returned to service would substan\xc2\xad\ntially undermine any argument that a volunteer who has had an abor\xc2\xad\ntion would be unable to perform effectively. This would not necessarily\npreclude the Peace Corps from reassigning a volunteer who has had an\nabortion if women who have abortions are ostracized or otherwise\ncondemned by the culture of her assigned country. That circumstance\ncould justify removal of the volunteer from her assignment, if her\ncontinued effective service would be substantially impaired by that\ncultural bias (assuming the fact of her abortion were public knowledge).\nHowever, such circumstances may be rare, and might be grounds only\nfor reassignment of the volunteer, not for termination.\nWe do not believe that under the PDA the Peace Corps could justify\na refusal to rehire a volunteer who had been terminated because of\npregnancy and subsequently chose to have an abortion. Even if the\nostensible reason for the refusal to rehire that volunteer were to avoid\ndisruption caused by repeated breaks in service, or because of questions\nraised about the volunteer\xe2\x80\x99s commitment to serve her full term,9 it\nwould be difficult to overcome the inference that the volunteer was\naccorded different consideration in the employment decision because\nshe became pregnant and chose to have an abortion, and might become\npregnant and choose to have an abortion again in the future. One of the\nprimary purposes of the PDA revealed in its legislative history is to\nprevent employers from acting on the basis of such stereotypes, i.e.,\nthat all women of child-bearing age are \xe2\x80\x9cpotentially pregnant.\xe2\x80\x9d See\n1978 House Report at 6-7, 1978 U.S. Code Cong. & Ad. News at 475455; Weeks, 408 F.2d at 235-36. Thus, we conclude that under the PDA\n9 Am ong the standards o f selection for Peace Corps volunteers is \xe2\x80\x98\xe2\x80\x98[m otivation indicating commit\xc2\xad\nment to serve a full term (usually 2 years) as a volunteer despite periods o f stress.\xe2\x80\x9d 22 C .F R.\n\xc2\xa7 305.3(a).\n\n356\n\n\x0cthe fact that a volunteer chose to have an abortion cannot be consid\xc2\xad\nered in a decision on her reapplication for service.\nIII. Reimbursement of Expenses\n\nYou have also asked whether the Peace Corps must, or indeed can,\nconsistent with the PDA and current restrictions on the use of appro\xc2\xad\npriated funds, continue to pay travel costs and a per diem for volun\xc2\xad\nteers who obtain an abortion while in service. The Peace Corps now\npays those costs under a general policy providing for evacuation to the\nUnited States of volunteers who require \xe2\x80\x9celective (necessary but not\nemergency) surgery of any consequence.\xe2\x80\x9d 10 Until the beginning of FY\n1979, the Peace Corps also paid for the costs of the abortion procedure\nitself. In 1978, Congress included language in the Peace Corps\xe2\x80\x99 appro\xc2\xad\npriations legislation limiting the use of appropriated funds for abortions.\nWe understand that the currently effective language is contained in\nPub. L. No. 96-536, \xc2\xa7 109, 94 Stat. 3166, 3170 (1980), and prohibits the\nuse of funds \xe2\x80\x9cto perform abortions except where the life of the mother\nwould be endangered if the fetus were carried to term; or except for\nsuch medical procedures necessary for victims of [reported] rape or\nincest . . . or for medical procedures necessary for the termination of\nan ectopic pregnancy.\xe2\x80\x9d\nOn its face, this restriction covers only payments made \xe2\x80\x9cto perform\nabortions\xe2\x80\x9d; it does not prohibit the use of funds to pay expenses, such\nas a per diem or travel expenses, that are incidental to the abortion. We\nbelieve that the plain language of the appropriations restriction is dis\xc2\xad\npositive, and does not require the Peace Corps to cease payment of\nincidental expenses other than the costs of the abortion itself.11\nThis does not, however, dispose of the question whether the Peace\nCorps, in its discretion, may cease payment of travel and per diem\nexpenses for volunteers who elect to have abortions. The statutory\nauthority for payment of those expenses vests broad discretion in the\nPresident or his delegated representative to authorize \xe2\x80\x9csuch health care\n10 T he current policy set forth in the Peace Corps manual identifies a number of other factors that\nrequire evacuation to the United States, including: difficult diagnostic problems; cases requiring\ndifficult treatment; psychiatric problems that are the primary reason for evacuation or that threaten to\ncomplicate the medical management of the case; cases involving a long recuperative period; and cases\nthat can be handled more effectively and at lower cost in the United States than at an intermediate\npoint. Evacuation to intermediate locations is suggested for a number of other problems, including:\nemergency surgery, elective surgery requiring short-term hospitalization or treatment on an outpatient\nbasis; specialist consultations, simple orthopedic procedures; and treatment if a long recuperative\nperiod is not anticipated.\n"M oreover, as we note below, any broader interpretation of the appropriations restriction would\nconflict directly with the requirements of the PDA, This inconsistency would raise a substantial\nquestion of congressional intent, because the latter-passed bill (the appropriations legislation) does not\naddress the continuing applicability of the PDA. In genera], repeals by implication are not favored,\nespecially when the subsequent legislation is an appropriations measure. See, e.g., TVA v. HiU, 437 U.S.\n153, 189-90 (1978). T o the extent possible, therefore, we must interpret the restriction on the Peace\nCorps\xe2\x80\x99 appropriated funds consistently with the PD A \xe2\x80\x94Le., to prohibit only the use of funds to pay for\nthe abortion procedure itself\n\n357\n\n\x0c. . . as [is] necessary or appropriate.\xe2\x80\x9d 22 U.S.C. \xc2\xa7 2540(e). We believe\nthis authority is broad enough to allow termination of such payments.\nIt must, however, be read in light of the non-discrimination require\xc2\xad\nments of the PDA.\nWe conclude that under the PDA the Peace Corps must continue to\npay travel and per diem expenses for volunteers evacuated to have an\nabortion, so long as it provides such compensation for other volunteers\nevacuated for comparable medical conditions. As noted above, the\nPDA expressly exempts from its coverage payment of \xe2\x80\x9chealth insur\xc2\xad\nance benefits for abortion,\xe2\x80\x9d except where the life of the mother would\nbe endangered or \xe2\x80\x9cmedical complications\xe2\x80\x9d arise. Because the Peace\nCorps in effect acts as a self-insurer for the volunteers, this exclusion is\nconsistent with the restriction on use of appropriated funds discussed\nabove.12 However, the legislative history of the PDA makes it clear\nthat Congress intended the exclusion o f abortion benefits to be limited\nto benefits for the abortion itself, and not to include incidental benefits\navailable to employees with comparable temporary disabilities. The\namendment excluding abortion benefits from the scope of the PDA was\nadopted during consideration of the bill by the House Education and\nLabor Committee. The version adopted by the House Committee, and\nsubsequently by the House, provided as follows:\nAs used in this subsection, neither \xe2\x80\x98pregnancy\xe2\x80\x99 nor \xe2\x80\x98related\nmedical conditions,\xe2\x80\x99 as they relate to eligibility for benefits\nunder any health or temporary disability insurance or sick\nleave plan available in connection with employment, may\n\nbe construed to include abortions, except where the life of\nthe mother would be endangered if the fetus were carried\nto term . . . .\n124 Cong. Rec. 21,435 (1978) (emphasis added). As drafted, the bill\nwould have permitted an employer to deny not only payment for the\nabortion itself, but also incidental benefits such as sick leave and disabil\xc2\xad\nity. Id. at 21,436 (remarks o f Rep. Hawkins). The Senate version of the\nbill contained no exclusion for abortion benefits.\nIn conference, a compromise was reached on the language that\nappears in the enacted bill. Senator Javits\xe2\x80\x99 remarks on the floor in\nsupport of the conference report clearly indicate that the intended\nscope of the exclusion was narrow:\n[T]he conferees have adopted a compromise which re\xc2\xad\nquires the provision of sick leave and disability benefits in\n12 A lthough the language of the P D A refers only to \xe2\x80\x9c health insurance benefits,\xe2\x80\x9d the legislative\nhistory indicates that the underlying concern was that employers would be required to pay fo r\nabortions (w hether directly or through insurance plans), even if that employer harbored religious or\nmoral objections to abortions. See 1978 House Report at 7, 1978 U.S. Code Cong. & Ad. News at\n4755.\n\n358\n\n\x0cconnection with an abortion on the same basis as for any\nother illness or disabling condition.\nOn the other hand, employers are not in any case re\xc2\xad\nquired to provide health insurance benefits for the per\xc2\xad\nformance of the abortion procedure itself. . . .\n*\n\n*\n\n*\n\n*\n\n*\n\nFinally, since the abortion proviso specifically addresses\nonly health insurance, the proviso in no way affects an\nemployee\xe2\x80\x99s right to sick pay or disability benefits or,\nindeed, the freedom from discrimination based on abor\xc2\xad\ntion in hiring, firing, seniority, or any condition of em\xc2\xad\nployment other than medical insurance itself.\n124 Cong. Rec. 36,818-19 (1978) (remarks of Senator Javits).\nThus, it is clear that, while an employer may refuse to pay the costs\nof the abortion, under the PDA that employer cannot refuse to provide\nto women who elect to have an abortion other benefits that are avail\xc2\xad\nable to temporarily disabled workers. Here, the Peace Corps\xe2\x80\x99 evacu\xc2\xad\nation policy, including the payment of travel expenses and a per diem\nallowance, is such an incidental benefit, and must be extended to volun\xc2\xad\nteers who elect to have an abortion. We believe that the Peace Corps\nmust also continue to allow volunteers to draw on their accumulated\nreadjustment allowance in order to pay for the abortions if they so\ndesire, so long as other volunteers are allowed similar access to cover\nmedical expenses not otherwise covered by the Peace Corps.13 This\nwould not preclude the Peace Corps from altering its current reim\xc2\xad\nbursement policy to provide, for example, for evacuation to an interme\xc2\xad\ndiate location, or to eliminate or reduce per diem payments, provided\nthe amended policy applies across the board to all temporarily disabled\nworkers, and not just to volunteers who become pregnant or have an\nabortion.\nT h e o d o r e B. O l so n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n13 We do not believe that allowing volunteers to use those funds would contravene the restriction\non the Peace Corps\xe2\x80\x99 use o f appropriated funds \xe2\x80\x9cto perform abortions.\xe2\x80\x9d Although the readjustment\nallowance is not required to be paid to the volunteer until the end o f his or her term o f service, those\nfunds are effectively held for the account of the volunteer and are taxable to the volunteer as accrued.\nSee n.2 supra. Thus, withdrawal from those funds to pay the costs o f an abortion would not be\npayment from funds appropriated generally for the Peace Corps, but rather payment to the volunteer\nof amounts owing to him o r her.\n\n359\n\n\x0c'