b'Assertion of Executive Privilege in Response to a\nCongressional Subpoena\nExecutive privilege can and should be asserted to withhold deliberative, predecisional\ndocuments from Congress, where release of the documents would seriously impair the\ndeliberative process and the conduct o f foreign policy, and where Congress\xe2\x80\x99 only stated\ninterest in obtaining the documents is for general oversight purposes.\nW here Congress has a legitimate need for information that will help it legislate, and the\nExecutive Branch has a legitimate constitutionally recognized need to keep information\'\nconfidential, each branch has an obligation to make a principled effort to accommodate\nthe needs o f the other.\n\nOctober 13, 1981\nT h e P r e s id e n t\nT h e W h it e H o u se\nD e a r M r . P r e s i d e n t : Y o u have requested my advice concerning\nthe propriety of an assertion of executive privilege in response to a\nsubpoena issued by the Subcommittee on Oversight and Investigations\nof the House Committee on Energy and Commerce (Subcommittee).\nThe subpoena was issued on September 28, 1981, and served on the\nDepartment of the Interior on October 2, 1981.* It demands the pro\xc2\xad\nduction of certain documents by October 14, 1981. It seeks \xe2\x80\x9c[a]ll docu\xc2\xad\nments relative to the determination of reciprocity under the Mineral\nLands Leasing Act, 30 U.S.C. \xc2\xa7 181, including documents relating to\nthe general matter of reciprocity and the specific question of the status\nof Canada, utilized or written by officials and staff of the Department\nof Interior on or before September 18, 1981.\xe2\x80\x9d 1 The Office of Legal\nCounsel of the Department of Justice has examined documents em\xc2\xad\nbraced by the subpoena and identified by the Department of the Inte\xc2\xad\nrior as being potentially subject to a claim of executive privilege, and\nhas concluded that a proper claim of privilege may be asserted with\nrespect to all of the documents identified in the attachment hereto. I\n\xe2\x80\xa2 N o t e : The full text of the subpoena and related correspondence can be found in Contempt o f\nCongress: Hearings on the Congressional Proceedings Against Interior Secretary James G. Watt Before the\nSubcommittee on Oversight and Investigation o f the House Committee on Energy and Commerce, 97th\nCong., 2d Sess. (1982). Ed\n1The Mineral Lands Leasing Act (Act) provides, in pertinent part, that "citizens of another\ncountry, the laws, customs or regulations of which deny similar or like privileges to citizens of this\ncountry, shall not by stock ownership, stock holding, or stock control, own any interest in any lease\nacquired under the provisions o f this Act \xe2\x80\x9d 30 U.S.C. \xc2\xa7 181.\n\n27\n\n\x0cconcur in that conclusion. I believe that the documents identified are\nproperly subject to a claim of executive privilege and that the privilege\nshould be asserted with respect to those documents.\n\nI.\nI understand that on September 24, 1981, the Department of the\nInterior supplied the Subcommittee with a large number of the materi\xc2\xad\nals presently demanded by the subpoena, including a list of 36 published\nsources and copies of 143 documents. Once the subpoena was issued,\nthe Departm ent o f the Interior, in consultation with other departments\nhaving an interest in the matter, including the Departments of State,\nCommerce, Treasury, Justice, and the Offices of the United States\nT rade Representative and the W hite House Counsel, once again re\xc2\xad\nviewed the documents w hich had not previously been provided to the\nSubcommittee. In an effort to make every reasonable accommodation\nto the legitimate needs o f the Legislative Branch, the Department of\nthe Interior released an additional 31 documents to the Subcommittee\non O ctober 9, 1981. One document was shown to the Subcommittee\nstaff at that time but w as not released. In addition, the Subcommittee\nwas provided with a written list and oral description of the 31 docu\xc2\xad\nments which had been withheld. The Subcommittee staff was permitted\nto ask questions concerning the nature o f those documents, a procedure\ndesigned to provide the Subcommittee with enough information to\nassure itself that the documents are not essential to the conduct of the\nSubcommittee\xe2\x80\x99s legislative business. Finally, the Subcommittee was in\xc2\xad\nformed that an additional 5-10 documents would be released once the\nD epartm ent of the Interior had concluded its deliberations regarding\nthe status o f Canada under the Act.\nAll of the documents in issue are either necessary and fundamental to\nthe deliberative process presently ongoing in the Executive Branch or\nrelate to sensitive foreign policy considerations. Several of the docu\xc2\xad\nments reflect views of officials of the Canadian government transmitted\nin confidence to United States officials as well as statements regarding\nthe status o f Canada by officials of the Department of State. Other\ndocuments, prepared for the Cabinet Council on Economic Affairs and\nthe Cabinet-level Trade Policy Committee, are predecisional, delibera\xc2\xad\ntive memoranda which have been considered by officials at the highest\nlevels of government. Both the Cabinet Council and the Trade Policy\nCommittee prepare recommendations for presidential action; in addi\xc2\xad\ntion, you personally attend some Cabinet Council meetings and chair\nthese meetings when you do attend. Finally, a large portion of the\ndocuments being withheld reflect internal deliberations within the D e\xc2\xad\npartm ent o f the Interior regarding the status of Canada under the Act.\nSome of these documents are staff level advice to policymakers con\xc2\xad\ntaining recommendations regarding decisions which have not yet\n28\n\n\x0cbecome final. Others contain internal Interior Department deliberations\nregarding its participation in the Trade Policy Staff Committee and the\nCabinet Council on Economic Affairs. Still other documents reflect\ntentative legal judgments regarding questions arising under the Act. In\naddition, the subpoena encompasses preliminary drafts of congressional\ntestimony by the Secretary of the Interior. These latter documents,\nalthough generated at levels below that of the Cabinet and subcabinet,\nare o f a highly deliberative nature and involve an ongoing decisional\nprocess of considerable sensitivity.\nII.\nThe Office of Legal Counsel of the Department of Justice has exam\xc2\xad\nined each of these documents and has concluded that they may prop\xc2\xad\nerly be withheld from the Congress at this time. These documents are\nquintessentially deliberative, predecisional materials. Each of the agen\xc2\xad\ncies which generated the documents has stated that their release to the\nSubcommittee would seriously interfere with or impede the deliberative\nprocess of government and, in some cases, the Nation\xe2\x80\x99s conduct of its\nforeign policy. Because the policy options considered in many of these\ndocuments are still under review in the Executive Branch, disclosure to\nthe Subcommittee at the present time could distort that decisional\nprocess by causing the Executive Branch officials to modify policy\npositions they would otherwise espouse because of actual, threatened,\nor anticipated congressional reaction. M oreover, even if the decision at\nissue had already been made, disclosure to Congress could still deter\nthe candor o f future Executive Branch deliberations, because officials at\nall levels would know that they could someday be called by Congress\nto account for the tentative policy judgments which they had earlier\nadvanced in the councils of the Executive Branch. As the Supreme\nCourt has noted, \xe2\x80\x9c[h]uman experience teaches that those who expect\npublic dissemination of their remarks may well temper candor with a\nconcern for appearances and for their own interests to the detriment of\nthe decisionmaking process.\xe2\x80\x9d United States v. Nixon, 418 U.S. 683, 705\n(1974). You must have access to complete and candid advice in order\nto provide the soundest basis for presidential decisions. I have con\xc2\xad\ncluded that release of these documents would seriously impair the\ndeliberative process and the conduct of foreign policy. There is, there\xc2\xad\nfore, a strong public interest in withholding the documents from con\xc2\xad\ngressional scrutiny at this time.\nAgainst this strong public interest I must consider the interest of\nCongress in obtaining these documents. The Subcommittee, in its letter\nto Secretary W att of August 13, 1981, stated that it was conducting a\n\xe2\x80\x9clegislative oversight inquiry\xe2\x80\x9d into the impact of Canadian energy poli\xc2\xad\ncies upon American companies. The Subcommittee\xe2\x80\x99s next formal com\xc2\xad\nmunication to Secretary Watt, the subpoena issued on September 28\n29\n\n\x0cand served October 2, did not further explain the Subcommittee\xe2\x80\x99s need\nfor the information. I therefore presume that the Subcommittee\xe2\x80\x99s inter\xc2\xad\nest in obtaining these documents is one of legislative oversight.2\nCongress does have a legitimate interest in obtaining information to\nassist it in enacting, amending, or repealing legislation. This interest\nextends beyond information bearing on specific proposals for legisla\xc2\xad\ntion; it includes, as well, the congressional \xe2\x80\x9coversight\xe2\x80\x9d function of\nbeing informed regarding the manner in which the Executive Branch is\nexecuting the laws which Congress has passed. Such oversight enables\nthe Legislative Branch to identify at an early stage shortcomings or\nproblems in the execution o f the law which can be remedied through\nlegislation.\nW hile I recognize the legitimacy o f the congressional interest in the\npresent case, it is important to stress two points concerning that inter\xc2\xad\nest. First, the interest of Congress in obtaining information for oversight\npurposes is, I believe, considerably weaker than its interest when spe\xc2\xad\ncific legislative proposals are in question. A t the stage o f oversight, the\ncongressional interest is a generalized one of ensuring that the laws are\nwell and faithfully executed and of proposing remedial legislation if\nthey are not. T he information requested is usually broad in scope and\nthe reasons for the request correspondingly general and vague. In\ncontrast, when Congress is examining specific proposals for legislation,\nthe information which Congress needs to enable it to legislate effec\xc2\xad\ntively is usually quite narrow in scope and the reasons for obtaining\nthat information correspondingly specific. A specific, articulated need\nfor information will weigh substantially more heavily in the constitu\xc2\xad\ntional balancing than a generalized interest in obtaining information. See\nUnited States v. Nixon, supra; Senate Select Committee on Presidential\nCampaign Activities v. Nixon, 498 F.2d 725, 731-33 (D.C. Cir. 1974) (en\nbanc).\nSecond, the congressional oversight interest will support a demand\nfor predecisional, deliberative documents in the possession of the Exec\xc2\xad\nutive Branch only in the most unusual circumstances. It is important to\nstress that congressional oversight o f Executive Branch actions is justi\xc2\xad\nfiable only as a means o f facilitating the legislative task of enacting,\namending, or repealing laws. When such \xe2\x80\x9coversight\xe2\x80\x9d is used as a means\no f participating directly in an ongoing process of decisionmaking within\nthe Executive Branch, it oversteps the bounds of the proper legislative\nfunction. Restricted to its proper sphere, the congressional oversight\nfunction can almost always be properly conducted with reference to\ninformation concerning decisions which the Executive Branch has al\xc2\xad\n*T he House Com mittee on Energy and Commerce does have pending before it several bills, H.R.\n4033, H.R. 4145, and H.R. 4186, w hich would amend the Act in certain respects. The pendency of\nthese bills has not been formally asserted as a reason for obtaining the documents. Moreover, the\ndocum ents requested appear to have a tangential relevance at best to the subject matter of the bill.\n\n30\n\n\x0cready reached. Congress will have a legitimate need to know the\npreliminary positions taken by Executive Branch officials during inter\xc2\xad\nnal deliberations only in the rarest of circumstances. Congressional\ndemands, under the guise of oversight, for such preliminary positions\nand deliberative statements raise at least the possibility that the Con\xc2\xad\ngress has begun to go beyond the legitimate oversight function and has\nimpermissibly intruded on the Executive Branch\xe2\x80\x99s function of executing\nthe law. At the same time, the interference with the President\xe2\x80\x99s ability\nto execute the law is greatest while the decisionmaking process is\nongoing.\nApplying the balancing process required by the Supreme Court, it is\nmy view that the Executive Branch\xe2\x80\x99s interests in safeguarding the\nintegrity of its deliberative processes and its conduct o f the Nation\xe2\x80\x99s\nforeign policy outweigh the stated interest o f the Subcommittee in\nobtaining this information for oversight purposes. It is, therefore, my\nview that these documents may properly be withheld from the Sub\xc2\xad\ncommittee at the present time.\nIII.\nFinally, a brief word is in order concerning the negotiations between\nthe Department of the Interior and the Subcommittee during this dis\xc2\xad\npute. In cases in which the Congress has a legitimate need for informa\xc2\xad\ntion that will help it legislate and the Executive Branch has a legiti\xc2\xad\nmate, constitutionally recognized need to keep information confidential,\nthe courts have referred to the obligation of each branch to accommo\xc2\xad\ndate the legitimate needs of the other. See United States v. American\nTel. & Tel. Co., 567 F.2d 121, 127, 130 (D.C. Cir. 1977); see generally\nUnited States v. Nixon, supra. The accommodation required is not\nsimply an exchange of concessions or a test of political strength. It is an\nobligation ,of each branch to make a principled effort to acknowledge,\nand if possible to meet, the legitimate needs of the other branch.\nIt is my view that the Executive Branch has made such a principled\neffort at accommodation in the present case. Prior to the issuance o f the\nsubpoena, the Department of the Interior supplied the Subcommittee\nwith a large number of the documents subsequently requested by the\nsubpoena. In response to the subpoena, the interested Executive Branch\ndepartments reviewed those documents which had been withheld and\nidentified documents that could be supplied in an effort to further\naccommodate the Subcommittee\xe2\x80\x99s needs. Substantial additional materi\xc2\xad\nals were released to the Subcommittee on October 9, 1981, despite the\nfact that at least some of these materials were deliberative in nature and\ntherefore presumptively subject to a claim of privilege. M oreover, the\nDepartment of the Interior has promised to release additional material\nonce its deliberations regarding the status of Canada under the A ct are\ncompleted. Finally, members o f the Subcommittee staff were provided\n31\n\n\x0ca comprehensive list of the materials being withheld from disclosure,\nand were briefed orally by the various federal agencies regarding the\nnature o f those documents.\nIn contrast, the Subcommittee has not to date shown itself sensitive\nto the legitimate needs o f the Executive Branch. As noted, it has never\nformally stated its need for the materials beyond a generalized interest\nin \xe2\x80\x9coversight.\xe2\x80\x9d It responded to the submission of documents by the\nExecutive Branch on September 24 by issuing a subpoena four days\nlater\xe2\x80\x94a subpoena which was broader in scope than the Subcommittee\xe2\x80\x99s\noriginal August 13 request. To date, the Subcommittee has shown little\ninterest in accommodating legitimate interests of the Executive Branch\nin safeguarding the privacy of its deliberative processes and conducting\nthe Nation\xe2\x80\x99s foreign policy. This lack of accommodation on the Sub\xc2\xad\ncomm ittee\xe2\x80\x99s part lends further support to my conclusion that the docu\xc2\xad\nments in question may properly be withheld.\nIn conclusion, it is my opinion that the documents now being with\xc2\xad\nheld are well within the scope o f executive privilege. The process by\nw hich the President makes executive decisions and conducts foreign\npolicy would be irreparably impaired by production of these documents\nat this time. I recommend that executive privilege be asserted.\nSincerely,\nW il l ia m F r e n c h S m it h\n\n32\n\n\x0c'


b'Legislation Authorizing the Transfer of Federal Judges from\nOne District to Another\nC o n g re ss m ay by sta tu te c o n fe r n ew d u ties on o fficers o f th e U n ited S tates as lo n g as\nth o se n ew d u ties are " g e rm a n e \xe2\x80\x9d to th e ir existing fu n ctio n s, w ith o u t the necessity o f\nre a p p o in tm en t u n d e r th e A p p o in tm e n ts C lau se o f th e C o n stitu tio n . Shoemaker v. United\nStates. 147 U.S. 282, 301 (1893).\nC o n stitu tio n a lity o f legislation a u th o riz in g th e tran sfer o f a F e d e ra l d istric t ju d g e from\no n e d istric t to a n o th e r d ep e n d s upon w h e th e r th e tran sfer is v iew ed as th e m odification\no f an ex isting p o sition o r th e filling o f an e n tire ly n ew office.\nT ra n s fe r p ro v isio n g o es against a tra d itio n o f regionalism in th e se lectio n o f district\nju d g e s, an d p o ten tially infringes upon the P re sid e n t\xe2\x80\x99s p o w e r to ap p o in t ju d g e s to the\nD istrict o f C o lu m b ia b en ch , an d sh o u ld be o p p o se d on p o licy g ro u n d s ev en if not\nc le a rly fo rb id d en by th e A p p o in tm e n ts C lause.\n\nMarch 28, 1980\nM EM ORANDUM OPINION FOR T H E ASSISTAN T ATTORNEY\nG EN ER A L, O F FIC E O F L EG ISLA TIV E A FFA IRS\nThis responds to your request for our opinion on the constitutionality\nof certain provisions of S. 1477* dealing with the temporary assignment\nof federal judges to administrative positions within the judicial branch.\nIn particular, you requested our opinion regarding the constitutionality\nof a provision in \xc2\xa7 304(a) of the bill that would permit a judge in active\nservice at the time he assumed the administrative position to elect, upon\nvacating it, either to return to active service in his home district (or\ncircuit), or to \xe2\x80\x9cassume active service as a judge in the circuit of the\nDistrict of Columbia.\xe2\x80\x9d For the reasons set forth below, we believe this\nprovision raises novel and troublesome constitutional questions and, as a\nmatter of policy, is ill-advised.\nThe portions of S. 1477 preceding \xc2\xa7 304 would authorize federal\njudges to serve in certain specified administrative positions within the\njudiciary (\xc2\xa7301),* authorize the President to appoint successors to fill\n\xe2\x80\xa2 N o t e : S. 1477, a bill \xe2\x80\x9cTo Provide for Improvements in the Structure and Administration of the\nFederal Courts, and for Other Purposes," passed the Senate in October of 1979, but was not reported\nout of committee in the House. Ed.\n1 The specified statutory administrative positions are: Administrative Assistant to the Chief Justice\n(appointed by the Chief Justice pursuant to 28 U.S.C. \xc2\xa7 677), Director of the Administrative Office of\nthe United States Courts (appointed by the Supreme Court under 28 U.S.C. \xc2\xa7 601), and Director of the\nFederal Judicial Center (appointed by a board of judges chaired by the Chief Justice, pursuant to 28\nU.S.C. \xc2\xa7\xc2\xa7 621(a) and 624<1)).\n\n538\n\n\x0cvacancies on the bench resulting from such service (\xc2\xa7 302),2 and estab\xc2\xad\nlish the District of Columbia as the \xe2\x80\x9cofficial duty station\xe2\x80\x9d of the judgeadministrators (\xc2\xa7 303). There is no minimum or maximum time specified\nfor terms of service as a judicial administrator.\nIf a judge elects to return to his home court at the end of his tour of\nadministrative duty, he may do so without loss of seniority. \xc2\xa7 304(b). If\nhe elects the alternative \xe2\x80\x9ctransfer\xe2\x80\x9d option, however, and assumes a seat\non a federal court in the District of Columbia, his status is not so clear.\nIt is, for example, not clear whether he would be considered to have\nfilled a vacancy on the District of Columbia court, or whether there\nwould automatically be created an additional seat on that court. It is\nnot stated whether a judge who decides to remain in the District of\nColumbia could subsequently reclaim a seat on his home court\xe2\x80\x94or\nwhether his initial decision not to return to that court would mean\nrelinquishing that option. Finally, as your Office\xe2\x80\x99s memorandum points\nout, the bill is unclear as to whether a district court judge could,\nthrough the provision, \xe2\x80\x9celevate him self\xe2\x80\x99 to the court of appeals.3\nStated in its simplest terms, the constitutional question raised by the\ntransfer provision is whether a new presidential nomination, confirma\xc2\xad\ntion by the Senate, and appointment by the President are constitution\xc2\xad\nally required before a judge appointed to, for example, the Northern\nDistrict of Iowa, may take a seat as a judge on the District Court for\nthe District of Columbia. This question may be analyzed in terms of the\nrelationship between the power of Congress under Art. I, \xc2\xa7 8, cl. 18 of\nthe Constitution to alter, enlarge, or restrict the functions of existing\nfederal officers and the requirement of the Appointments Clause, Art.\nII, \xc2\xa7 2, cl. 2, that appointments as officers of the United States be made\nin the manner prescribed in that Clause.4 Such an analysis involves a\n2 When a successor is appointed, any vacancy resulting from the death, resignation or retirement of\nthe judge temporarily assigned will not be filled; and, if the judge resumes active service in his home\ndistrict, the first vacancy created on that court shall not be filled. This scheme parallels that provided\nunder present law for situations in which a sitting judge is certified as disabled and an additional judge\nis appointed to carry on the business of the court. See 28 U.S.C. \xc2\xa7 372(b).\n3 The complete failure to spell out these important operational factors in the bill has not to date\nbeen cured in its legislative history. Indeed, there is no indication that the transfer provision was even\nnoticed, much less discussed, by anyone during the bill\'s consideration in the Senate. The Administra\xc2\xad\ntion\xe2\x80\x99s court improvements bill contained no provisions dealing with administrative service by active\njudges. According to an article in The Washington Post on December 22, 1979, credit for developing\nthe particular provision dealing with transfer to the District of Columbia courts is claimed by the\nDirector of the Federal Judicial Center. Its* ostensible purpose was to encourage sitting judges to\naccept the administrative posts and relocate to Washington.\n4 The clause is:\n[The President] shall have Power, by and with the Advice and Consent of the Senate,\nto make Treaties, provided two thirds of the Senators present concur; and he shall\nnominate, and by and with the Advice and Consent of the Senate, shall appoint\nAmbassadors, other public Ministers and Consuls, Judges of the supreme Court, and all\nother Officers of the United States, whose Appointments are not herein otherwise\nprovided for, and which shall be established by Law; but the Congress may by Law\nvest the Appointment of such inferior Officers, as they think proper, in the President\nalone, in the Courts of Law, or in the Heads of Departments.\n\n539\n\n\x0creconciliation of the Supreme Court\xe2\x80\x99s decisions in Shoemaker v. United\nStates, 147 U.S. 282, 301 (1893), and Buckley v. Valeo, 424 U.S. 1, 11836 (1976).\nShoemaker stated the principle that Congress may, by statute, confer\nnew duties on officers of the United States at least where the new\nduties are \xe2\x80\x9cgermane\xe2\x80\x9d to their existing functions, without the necessity\nof reappointment under the Appointments Clause. Buckley held that\nCongress may not itself appoint officers of the United States. The\npropriety of the proposed transfer provision depends, therefore, on\nwhether the shift from one district to another involves the modification\nof an existing position or the filling of an entirely new office.5\nThere are reasonable arguments to support either conclusion, and\nprecedent does not suggest that one is necessarily the correct view. On\nthe one hand, a judge\xe2\x80\x99s commission includes the name of the district or\ncircuit in which he is intended to serve, and his appointment and\nconfirmation are predicated on the expectation that he will in fact be\nserving in that district or circuit.6 On the other hand, service as a judge\non one federal court is surely \xe2\x80\x9cgermane\xe2\x80\x9d to judicial service on another,\nand raises none of the type of separation of powers problems that\napparently structured the Court\xe2\x80\x99s opinion in Shoemaker. 7 Under current\nlaw, the Chief Justice of the United States may assign any district judge\nto temporary service in another circuit, either on a district court or on\nthe court of appeals. 28 U.S.C. \xc2\xa7 292(d). However, during such tempo\xc2\xad\nrary service, judges retain the titles appurtenant to their permanent\nappointments, and are generally memorialized in published opinions as\n\xe2\x80\x9csitting by designation\xe2\x80\x9d on the court to which they have been tempo\xc2\xad\nrarily assigned.8\n5 The question whether Congress may permit a district judge, through the proposed transfer\nprovision, to elevate himself to the appellate level seems to us to present no separate constitutional\nissues. Article HI recognizes only two types of federal courts, the Supreme Court and \xe2\x80\x9csuch inferior\nCourts as the Congress may from time to time ordain and establish." The offices of district judge and\ncircuit judge are therefore not constitutionally distinct. Indeed, in the early years of our history, there\nwere no judges separately appointed to the circuit courts, and district judges regularly sat as judges on\nthose courts along with Justices of the Supreme Court. It was not until 1869 that Congress authorized\nthe appointment of circuit judges. Act of April 10, 1869, 16 Stat. 44. See Hart & Wechsler, The\nFederal Courts and the Federal System 38 (1973). If there is no constitutional bar to Congress*\ntransferring district judges from district to district, we think there would be no constitutional bar to\ntheir being shifted from district to appellate court service.\n0 There is nothing in the Constitution that would preclude Congress from deciding to make all\ndistrict and/or circuit judgeships interchangeable, so that an appointment would be generally valid for\nany post in the inferior federal courts to which an individual might from time to time be assigned.\nThere have in the past been cases in which Congress has authorized the appointment of a judge to\nserve in more than one district, or to serve as a \xe2\x80\x9c roving\xe2\x80\x99* judge among several districts. See. e.g.. Act\nof July 24, 1946, 60 Stat. 654. There have been cases in which a judge appointed to serve in one\ndistrict was subsequently shifted by congressional act to a newly created district in the same state,\nwithout being reappointed and reconfirmed. In no case, however, has a judge been appointed to one\ncourt and subsequently been permitted to shift permanently to another previously existing court.\n7 In commenting on the Shoemaker case, in which officers o f the United States Army were\ndesignated by Congress to serve as Park Commissioners, Corwin describes the limits of Congress\'\npower to increase or change the duties of an existing office in terms of the principle of separation of\npowers. Corwin, The President, Office and Powers, 1787-1957 at 75 (1957).\n8 A similar provision dealing with the temporary assignment of judges of the Court of Claims or the\nCourt of Customs and Patent Appeals to judicial duties in either a district court or a court of appeals,\nC ontinued\n\n540\n\n\x0cWhile we cannot conclude with assurance on the question of the\ntransfer provision\xe2\x80\x99s constitutionality, we think that two considerations\nwarrant the Administration\xe2\x80\x99s opposition to its inclusion in the court\nimprovements bill. First, the transfer option is unique in the history of\ncongressional regulation of the inferior federal courts, and would go\nagainst a tradition of regionalism in the selection of district judges that,\nif not constitutionally required, has about it an aura of constitutional\nrespectability that should be disturbed only for compelling reasons.\nSecond, the inroads that the transfer provision could theoretically make\non the President\xe2\x80\x99s power to appoint judges to the District of Columbia\nbench make its adoption unwise as a matter of policy, even if not\nclearly forbidden under the Appointments Clause.\nThis conclusion is consistent with our recent advice on the\nreallocation of personnel in connection with the proposed merger of the\nCourt of Claims and the Court of Customs and Patent Appeals. We\nadvised that there appeared to be no constitutional objection to Con\xc2\xad\ngress\xe2\x80\x99 redesignating judges presently serving on one or the other of the\ntwo courts as judges of a merged court, and to carrying over trial\njudges of the Court of Claims as judges of a new United States Claims\nCourt. We rested our opinion on our understanding that the functions\nof judges on the new court were sufficiently like those in the positions\nbeing abolished to view the legislative redesignation as a modification\nof an existing position under Shoemaker, rather than a legislative ap\xc2\xad\npointment to a new one, governed by Buckley. One important differ\xc2\xad\nence between the merger situation and the transfer proposal at issue\nhere is that the former involves the end of one institution and the\ncontinuance of its major functions in another. It is reasonable, and\nimportant in terms of efficiency and institutional continuity, to provide\nin this context for the relocation of experienced and capable judicial\npersonnel, and for their continuing to perform the functions of the\noffice to which they were originally appointed. In addition, unlike the\ntransfer provision, it could be said that the judges\xe2\x80\x99 functions on the\nmerged court were within the contemplation of those who were in the\nfirst place responsible for their appointment and confirmation.\nAlthough we have no reason to believe that the dire predictions of\n\xe2\x80\x9ccourt-packing\xe2\x80\x9d that have been made in connection with the transfer\nproposal 9 would ever be realized, we can more easily imagine a situa\xc2\xad\ntion in which the President\xe2\x80\x99s prerogative to fill vacancies occurring on\nthe District of Columbia bench would be seriously compromised by it.\nThis would be particularly true if transferring judges were considered\n28 U.S.C. \xc2\xa7 293(a), was upheld against a constitutional challenge in Glidden Co. v. Zdanok, 370 U.S.\n530 (1962). Glidden involved primarily questions under Article HI, and there is no discussion in the\nCourt\'s opinion of the Appointments Clause.\n9 See, e.g.. Bill Would Let Chief Justice Fill U.S. Bench Here, The Washington Post, December 22,\n1979, p. 1.\n\n541\n\n\x0cto have filled a vacancy on the District of Columbia court. Quite\nindependently of any constitutional doubts we may have regarding the\nproposal, then, we believe it has little to commend it as a matter of\npolicy.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n542\n\n\x0c'


b"Proposed Legislation to Establish the\nNational Indian Gaming Commission\nA bill that proposes to create an \xe2\x80\x9cindependent commission\xe2\x80\x9d within the Department o f the Interior\nto regulate gambling on Indian reservations and that would give the commission the power,\ninter alia, to impose civil fines, gives rise to several constitutional issues. The extent to which\nCongress may restrict the removal o f subordinate executive officers such as the members of\nthe Indian Gaming Commission is unclear, but such restrictions should be avoided. Further\xc2\xad\nmore, consistent with the Appointments Clause, the authority to waive a federal statute should\nbe subject to the approval of a principal officer, such as the Secretary of the Interior.\nUnder the Due Process Clause, civil penalties imposed by members of the Indian Gaming\nCommission should be imposed by an unbiased administrative judge rather than an interested\nofficial.\nUnder the Fourth Amendment, the Indian Gaming Commission may conduct w arrantless searches\no f gam bling establishm ents, which are part o f a closely regulated industry, only if: (1) there is\na substantial government interest; (2) the searches are necessary to further the regulatory\nscheme; and (3) the statute provides a constitutionally adequate substitute for a warrant. The\nfirst and second requirements are met in this case. The third requirement may be m et by\nproviding notice in the statute that inspections will be made on a regular basis and will have a\nparticular scope.\n\nJuly 24, 1987\nM\n\nem orandum\n\nO p in io n\n\nLand\n\nand\n\nN\n\nfor th e\n\nA s s is t a n t A t t o r n e y G e n e r a l ,\n\natural\n\nR e s o u r c e s D iv is io n\n\nThis responds to your request for our views on S. 1303, a bill that would\nestablish a National Indian Gaming Commission (Commission) within the\nDepartment of the Interior to regulate gambling on Indian reservations. We\nhave several comments.\nFirst, the Commission is established as \xe2\x80\x9can independent commission\xe2\x80\x9d within\nthe Department of the Interior. S. 1303, \xc2\xa7 5(a). As a part of the Department of\nthe Interior, the Commission is subordinate to the Secretary of the Interior and\ncannot be independent of that authority. Section 5(b)(5) states that the four\nmembers appointed by the Secretary may only be removed for cause. The\nextent of Congress\xe2\x80\x99 power to place limitations on the removal of subordinate\nexecutive officers is unclear,1 and in this context, should be avoided. The\nSecretary is responsible for the actions of the Commission\xe2\x80\x99s members, a\nmajority of whom he appoints, and will be charged with defending them if they\nare sued or act in a controversial fashion. Limiting his removal power will\n1 Cf. United States v. Perkins, 116 U.S. 483 (1886).\n\n73\n\n\x0chandicap his supervisory authority. This is especially important given that the\nCommission is acting in an area that will undoubtedly attract criminals and\nsubject the Commissioners to a variety of pressures. If enacted as is, we would\nread the \xe2\x80\x9cfor cause\xe2\x80\x9d provision broadly, in order to give the Secretary maximum\nflexibility. To provide the Secretary with adequate authority to supervise the\nCommission\xe2\x80\x99s members, however, we urge that he be given the clear right to\nremove the members at will.\nSecond, \xc2\xa7 4, which prohibits gaming on certain Indian lands, does not apply\n\xe2\x80\x9cif the Indian tribe . . . obtains the concurrence of the Governor of the State,\nand the governing bodies of the county or municipality in which such lands are\nlocated\xe2\x80\x9d to the tribe\xe2\x80\x99s obtaining the land. Id., \xc2\xa7 4(b). This provision would give\nindividuals not appointed in accordance with the Appointments Clause, U.S.\nConst, art. II, \xc2\xa7 2, cl. 2, the authority to waive a federal statute. In order to avoid\nthe constitutional problems inherent in such a situation, \xc2\xa7 4(b) should be\nrevised to begin: \xe2\x80\x9cSubject to the approval of the Secretary.\xe2\x80\x9d This would insure\nthat implementation of the statute remained in the hands of a properly ap\xc2\xad\npointed Executive Branch officer.\nThird, we are concerned by \xc2\xa7 15(a)(1), which permits the Chairman of the\nCommission to levy civil fines of up to $25,000 against the managers of the\ngambling establishments.2 \xe2\x80\x9cFines collected pursuant to this section shall be\nutilized by the Commission to defray its operating expenses.\xe2\x80\x9d Id? The use of\ncivil penalties to supplement the Commission\xe2\x80\x99s appropriation raises due pro\xc2\xad\ncess concerns. The Due Process Clause requires that such fines be assessed by\na neutral tribunal. Ward v. Monroeville, 409 U.S. 57, 62 (1972). Although it is\ntrue that Commission members will not benefit personally from any civil fines\nimposed,4 the provision raises questions about how impartial the Chairman will\nbe in levying fines when he knows the proceeds will be applied directly to the\n\xe2\x80\x9coperating expenses\xe2\x80\x9d of the Commission.\nThe Supreme Court addressed this issue most recently in Marshall v. Jerrico,\nInc., 446 U.S. 238 (1980).5 In upholding the assessment provision at issue in\nMarshall, the Court highlighted several factors. First, the Court noted that the\nregional administrator levying the fine did not have the role of a judge, as in\nWard and Tumey, but was akin to a prosecutor. Prosecutors, the Court said,\nneed not be entirely neutral and detached, as judges must be. Marshall, 446 U.S. at\n248. The regional administrator had the role of a prosecutor because the employer\nwas \xe2\x80\x9centitled to a de novo hearing before an administrative law judge,\xe2\x80\x9d where the\nadministrator would have to prove his case. Id. at 247. Thus, the first level of\nadjudication (rather than accusation) was before an unbiased judge.\n2 The m anager m ay have the Commission hear the evidence against him before the Fine is collected by the\nC hairm an. S. 1303, \xc2\xa7 15(a)(2).\n3 O perating expenses are not defined.\n4 See Tumey v. Ohio, 273 U.S. 510, 523 (1927).\n5 Marshall involved the pow er of a D epartm ent o f L abor regional adm inistrator to assess a civil penalty of\nup to $1000 against em ployers who violated the child labor laws. The penalties collected in each region were\nreturned to the national office, which allocated them for various parts o f the program, including the regional\noffices. The statute was challenged on the ground that regional adm inistrators w ould assess extra fines in the\nhope that som e o f the m oney would be retu rn ed to their regions.\n\n74\n\n\x0cBy contrast, under S. 1303 the Chairman (and the Commission) are not\nanalogous to prosecutors: they do not have to prove their case before an\nindependent administrative law judge. The Chairman\xe2\x80\x99s decision to levy a fine\nis reviewed not by an independent administrative law judge but by the Com\xc2\xad\nmission, which is as interested in the matter as the Chairman. Thus, the\nChairman and the Commission constitute the initial level of adjudication for\nthe owners. The next level of adjudication is in the court of appeals. S. 1303,\n\xc2\xa7 16. The M arshall opinion seems to indicate that if a financially interested\nadministrator acts as a judge, the \xe2\x80\x9crigid requirements of Tumey and Ward,\ndesigned for officials performing judicial or quasi-judicial functions\xe2\x80\x9d apply.\nMarshall, 446 U.S. at 248.\nMoreover, the Court in M arshall emphasized that the penalties collected by\nthe regional administrators constituted \xe2\x80\x9csubstantially less than 1%\xe2\x80\x9d of the\nagency\xe2\x80\x99s budget. Id. at 245. In fact, the agency returned money each year to the\nDepartment of the Treasury because it was not even using up its appropriation,\nso that the collection of penalties did not \xe2\x80\x9cresulft] in any increase in the funds\navailable to the [agency] over the amount appropriated by Congress.\xe2\x80\x9d Id. at\n246. In light of these figures, the Court did not believe that there was \xe2\x80\x9ca\nrealistic possibility that the [administrator\xe2\x80\x99s] judgment will be distorted by the\nprospect of institutional gain as a result of zealous enforcement efforts.\xe2\x80\x9d Id. at\n251. The Commission\xe2\x80\x99s initial appropriation is $2,000,000. S. 1303, \xc2\xa7 20. We\ncannot say at this point how much money the Commission will collect in\npenalties, but there is certainly a significant possibility that the Commission\nmay generate more than 1 percent of its operating expenses from assessing\npenalties of up to $25,000 per offense.\nAs the Supreme Court has said, one of the most important functions served\nby having an impartial and disinterested judge is the preservation of a fair\nadjudicative process: \xe2\x80\x9cIndeed, \xe2\x80\x98justice must satisfy the appearance of justice.\xe2\x80\x99\xe2\x80\x9d\nMarshall, 446 U.S. at 243 (citation omitted). While we cannot state definitively\nwhether the penalty provision in S. 1303 would survive court scrutiny, we do\nbelieve it would provide a serious ground for attack. We would therefore\nrecommend that this provision be eliminated. If it is not, we recommend that\nthe amount of money collected be used as a credit against the Commission\xe2\x80\x99s\nappropriation, rather than as a supplement to it, or that some cap be placed on\nthe amount that the Commission may retain.\nOur next concern with the bill is that it would permit the Commission to\ninspect the premises and records of any establishment where gambling is\nconducted. S. 1303, \xc2\xa7 7(b)(2), (4). As we noted last year when commenting on\nan earlier version of this bill,6 the Supreme Court has recognized the applicabil\xc2\xad\nity of the Fourth Amendment to commercial enterprises, but has created certain\nexceptions: first, for closely regulated industries in which owners have reduced\nexpectations of privacy; and second, for laws providing such a regular and\ncertain pattern of inspections that there is a predictable and guided federal\n6 M emorandum for Stephen S Trott, A ssistant A ttorney G eneral, Criminal Division from C harles J.\nC ooper, A ssistant A ttorney G eneral, O ffice o f Legal Counsel (Apr 1, 1986).\n\n75\n\n\x0cregulatory presence.7 The Supreme Court has held that closely regulated indus\xc2\xad\ntries include the liquor trade, firearms, mining, and, in its most recent decision\nin this area, automobile junkyards. New York v. Burger , 482 U.S. 691 (1987).\nWe think it is fair to assume that gambling would be considered a closely\nregulated industry in the United States.\nIn B urger, the Supreme Court held that warrantless inspections of closely\nregulated industries are permissible if three criteria are met. First, there must be\na substantial federal interest at stake. Id. at 702. Regulation of gambling on\nIndian reservations in order to prevent the infiltration of organized crime is\ncertainly an important federal interest. Second, warrantless inspections must be\nnecessary to further the regulatory scheme. Id. As with the scheme upheld in\nBurger, effective inspections of gambling establishments require surprise.\nOtherwise, the owners would have ample time to hide or destroy ledgers or\nother evidence of malfeasance. Third, the statute must provide \xe2\x80\x9ca \xe2\x80\x98constitution\xc2\xad\nally adequate substitute for a warrant.\xe2\x80\x99\xe2\x80\x9d Id. at 703 (quoting Donovan v. Dewey,\n452 U.S. 594, 603 (1981)). In Burger, this condition was met because:\n[t]he statute informs the operator of a vehicle dismantling busi\xc2\xad\nness that inspections will be made on a regular basis. Thus [he]\nknows that the inspections . . . do not constitute discretionary\nacts by a government official but are conducted pursuant to\nstatute. [The statute] also sets forth the scope of the inspection\nand, accordingly, places the operator on notice as to how to\ncomply with the statute.\nId. at 711 (citations omitted). The only restraint on the scope of the inspection\nidentified by the Court was limiting the inspections to regular business hours. Id.\n\nS. 1303 puts the operators of gambling establishments on notice that they\nwill be inspected and lists the items that are subject to inspection, thus placing\noperators on notice as to the scope of what can be examined. Accordingly, our\nonly suggestion is that the bill be amended to state that inspections will take\nplace during regular business hours.8\nD o u g l a s W . K m ie c\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n1 See Donovan v. Dewey, 452 U.S. 594, 598 (1981); Marshall v. Barlow's Inc., 436 U.S. 307, 311 (1978);\nUnited States v. Biswell , 406 U.S. 3 1 1 ,3 1 3 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72,\n75 (1970); See v. City o f Seattle, 387 U .S. 541, 542 (1967).\n* E arlier cases such as Donovan also req u ired inspections on m ore than an annual basis: Donovan upheld a\nstatutory schem e in part because it provided for irregular inspections at least twice a year. 452 U.S. at 604.\n\nBurger does not ap p ear to in sist on this facto r, but such a provision would provide further protection against\nconstitu tio n al attack.\n\n76\n\n\x0c"


b'Whether the Office of Special Counsel for\nImmigration Related Unfair Employment Practices\nis Empowered to Challenge the\nConstitutionality of State Statutes\nThe statutory exemption for \xe2\x80\x9cdiscrimination ... otherwise required in order to comply with\nlaw, regulation, or executive order\xe2\x80\x9d excludes from the scope of the Office of Special\nCounsel\xe2\x80\x99s jurisdiction all discriminatory activity based on state law.\n\nMarch 16, 1989\nM emorandum O pinion for the S pecial C ounsel for\nI mmigration R elated U nfair E mployment P ractices\n\nYou have asked for our opinion on whether the Office of Special\nCounsel for Immigration Related Unfair Employment Practices may chal\xc2\xad\nlenge discrimination on the basis of citizenship status that is committed\npursuant to state law or whether such conduct is exempted from your\njurisdiction pursuant to the exception found in 8 U.S.C. \xc2\xa7 1324b(a)\n(2)(C).1 We believe that the language \xe2\x80\x9cdiscrimination ... otherwise\nrequired in order to comply with law, regulation, or executive order\xe2\x80\x9d was\nintended to exclude from the scope of the jurisdiction of your Office all\ndiscriminatory activity based on state law.\nWe have reached this conclusion based on the plain language of the\nstatute that action taken pursuant to any \xe2\x80\x9claw, regulation, or executive\norder\xe2\x80\x9d of the state or federal government is exempted from the definition\nof \xe2\x80\x9cunfair immigration-related employment practice.\xe2\x80\x9d This reading of the\nlanguage is bolstered by the fact that since state statutes are generally\npresumed to be constitutional, the drafters of the exception would ordi\xc2\xad\nnarily have assumed that the \xe2\x80\x9claws\xe2\x80\x9d referred to would be presumed to be\nconstitutional until actually held to be otherwise. See, e.g., Salsburg v.\nMaryland, 346 U.S. 545, 553 (1954) (\xe2\x80\x9cThe presumption of reasonableness\nis with the State.\xe2\x80\x9d) (footnote omitted); Davis v. Department of Labor, 317\nU.S. 249, 256 (1942) (\xe2\x80\x9cFaced with this factual problem we must give great\n\xe2\x80\x94 indeed, presumptive \xe2\x80\x94 weight to the conclusions ... to the state\nM emorandum for Douglas W Kmiec, Assistant Attorney General, Office of Legal Counsel, from\nLawrence J. Siskind, Special Counsel, Office of Special Counsel for Immigration Related Unfair\nEmployment Practices (Feb. 22,1988) (\xe2\x80\x9cMemorandum\xe2\x80\x9d).\n72\n\n\x0cstatutes themselves.\xe2\x80\x9d); Atchison, T. & S. F. R.R. v. Matthews, 174 U.S. 96,\n104 (1899) (\xe2\x80\x9cIt is ... a maxim of constitutional law that a legislature is pre\xc2\xad\nsumed to have acted within constitutional limits, upon full knowledge of\nthe facts, and with the purpose of promoting the interests of the people\nas a whole, and courts will not lightly hold that an act duly passed by the\nlegislature was one in the enactment of which it has transcended its\npower.\xe2\x80\x9d).2 Thus, we believe Representative Frank\xe2\x80\x99s reference to \xe2\x80\x9cvalid\xe2\x80\x9d\nlaws must be understood in light of a state law\xe2\x80\x99s presumed validity. 130\nCong. Rec. 15,938 (1984). Of course, this presumption of validity and the\nlimitation on your jurisdiction would not apply where the particular state\nlaw had been invalidated or found unconstitutional.3\nDisregarding the plain language of the statute in order to permit the\nOffice of Special Counsel to challenge action taken pursuant to state law\nwould also raise more complex issues, some of constitutional dimension.\nIn this regard, considerable doubt exists whether administrative law\njudges (\xe2\x80\x9cAU\xe2\x80\x9d) can determine the constitutionality of state statutes or are\nprecluded from doing so by Article III of the Constitution. In assessing\nwhether the assignment of particular duties to a non-Article III body\nunconstitutionally infringes upon the prerogatives of the judicial branch,\nthe Court has been especially wary about authorizing the assignment to\nnon-Article HI tribunals of state law questions, Northern Pipeline Constr.\nCo. v. Marathon Pipeline Co., 458 U.S. 50 (1982), and constitutional ques\xc2\xad\ntions, Johnson v. Robison, 415 U.S. 361, 369 (1974). Under your memo\xc2\xad\nrandum, however, an AU would be making determinations about both.\nWhere that is the case an Article III court must exercise the firmest con\xc2\xad\ntrol over the non-Article III tribunal.\nThat control is missing here. Review of the AU decision is only in the\ncourt of appeals. It is not said to be de novo, and the court of appeals has\nnothing to review other than the \xe2\x80\x9ccold record.\xe2\x80\x9d United States v. Raddatz,\n447 U.S. 667, 679-80 (1980) (distinguishing between \xe2\x80\x9can appellate court\xe2\x80\x99s\nreview of a nisi prius judge in a trial on the merits\xe2\x80\x9d and \xe2\x80\x9ca special mas\xc2\xad\nter\xe2\x80\x99s findings or actions of an administrative tribunal on findings of a\nhearing officer\xe2\x80\x9d). In Raddatz, the Supreme Court upheld a magistrate\xe2\x80\x99s\nfactual determinations in a constitutional proceeding only because the\nmagistrate was subject to the \xe2\x80\x9cbroad discretion\xe2\x80\x9d of the district court\n2We are also fortified in this conclusion by the fact that the use of the word \xe2\x80\x9claw\xe2\x80\x9d m the exception in\nsection J324b(a)(2)(C) is similar to its use in other jurisdictional statutes. For example, 28 U S C. \xc2\xa7 1331\nprovides that \xe2\x80\x9c(t]he district courts shall have original jurisdiction of all civil actions arising under the .\nlaws . of the United States \xe2\x80\x9d Yet there is no doubt that an action to challenge an unconstitutional law is\none \xe2\x80\x9carising under\xe2\x80\x9d the laws of the United States.\n3Where a particular state law has not been found unconstitutional, but you believe the state law is,\nunder analogous Supreme Court precedent, arguably unconstitutional on its face or as applied, we rec\xc2\xad\nommend that you bring this concern to the attention of the Assistant Attorney General for Civil Rights\nfor a discussion of whether federal litigation, a denial of federal benefits or some other appropriate\naction should be taken in light of the constitutional doubts presented at that time. This Office, of course,\nwould be pleased to assist you or Civil Rights in evaluating these constitutional questions as they arise.\n73\n\n\x0cjudge \xe2\x80\x9cto accept, reject, or modify the magistrate\xe2\x80\x99s proposed findings.\xe2\x80\x9d Id.\nat 680. Had the proceeding not \xe2\x80\x9c[been] \xe2\x80\x98constantly subject to the court\xe2\x80\x99s\ncontrol,\xe2\x80\x9d\xe2\x80\x99 id. at 682 (quoting Crowell v. Benson, 285 U.S. 22 (1932)), the\nCourt would have found that the statutory procedure did not \xe2\x80\x9cstrike[] the\nproper balance between the demands of due process and the constraints\nof Art. III.\xe2\x80\x9d Id. at 683-84. Stated another way, \xe2\x80\x9c\xe2\x80\x98[i]n cases brought to\nenforce constitutional rights, the judicial power of the United States nec\xc2\xad\nessarily extends to the independent determination of all questions, both\nof fact and law, necessary to the performance of that supreme function.\xe2\x80\x99\xe2\x80\x9d\nId. at 682 (quoting Crowell, 285 U.S. at 60).\nWere the Immigration Reform and Control Act of 1986, Pub. L. No. 99603, 100 Stat. 3359 (1983) (\xe2\x80\x9cIRCA\xe2\x80\x9d) to be read as giving ALJs the authori\xc2\xad\nty to make determinations as to the constitutionality of state law, the\nestablished procedures might well fall short of the requirements set forth\nin Raddatz. The facts upon which the determination of the constitution\xc2\xad\nality of a state statute would be based would be found by a non-Article III\nofficial. Those facts could then be reviewed only by a court of appeals,\nwhich review is not even (unlike the procedures reviewed in Raddatz)\ndesignated as \xe2\x80\x9cde novo.\xe2\x80\x9d This ill-comports with the respect due state\nstatutes in our federal system. See, e.g., Salsburg v. Maryland-, Davis v.\nDepartment of Labor, Atchison, T. & S. F. R.R. v. Matthews. Moreover,\nin the event an AU found a challenged statute constitutional, an individ\xc2\xad\nual claiming that the state law is unconstitutional would, on appeal \xe2\x80\x94\nespecially in an as-applied challenge \xe2\x80\x94 be deprived of the opportunity to\nhave an Article III court assess in the first instance the alleged facts upon\nwhich his claim is based. This Raddatz forbids.\nCFTCv. Schor, 478 U.S. 833 (1986), highlights the differences between\nthe circumstances when a non-Article III tribunal may decide certain\nquestions and the situation at issue here. In Schor, the Supreme Court\nheld that a non-Article III tribunal could entertain state law counter\xc2\xad\nclaims even though the only review was by a court of appeals. The Court\nbased this decision on a number of important factors. First, Mr. Schor\nconsciously chose the speed and inexpense of the administrative proce\xc2\xad\ndure to vindicate his right to reparations, thus choosing to have his claim\nadjudicated before a non-Article III court. The state whose law would be\nchallenged by the Special Counsel would not appear voluntarily.\nMoreover, the other factors considered by the Schor Court in assessing\nwhether the adjudication of the constitutionality of the state statute \xe2\x80\x9cin a\nnon-Article III tribunal impermissibly threatens the institutional integrity\nof the Judicial Branch,\xe2\x80\x9d 478 U.S. at 851, illustrate the constitutional prob\xc2\xad\nlems raised by AU review of constitutional questions. The Schor Court\nlooked to (1) \xe2\x80\x9cthe extent to which the \xe2\x80\x98essential attributes of judicial\npower\xe2\x80\x99 are reserved to Article III courts\xe2\x80\x9d; (2) \xe2\x80\x9cconversely, the extent to\nwhich the non-Article III forum exercises the range of jurisdiction and\npowers normally vested only in Article III courts\xe2\x80\x9d; (3) \xe2\x80\x9cthe origins and\n74\n\n\x0cimportance of the right to be adjudicated\xe2\x80\x9d; and (4) \xe2\x80\x9cthe concerns that\ndrove Congress to depart from the requirements of Article III.\xe2\x80\x9d Id. (citing\nThomas, 473 U.S. at 587, 589-93); Northern Pipeline, 458 U.S. at 84-86.\nTurning to the first two considerations, the essential attributes of judi\xc2\xad\ncial power are not sufficiently reserved to an Article III court. This is illus\xc2\xad\ntrated by looking to the \xe2\x80\x9cconverse\xe2\x80\x9d: whether ALJs are here vested with\npowers \xe2\x80\x9cnormally vested only in Article III courts.\xe2\x80\x9d Determining the con\xc2\xad\nstitutionality of a state statute is one of the most important of all Article\nIII functions. It leads to precisely the kinds of determinations that are\n\xe2\x80\x9cnormally vested only in Article III courts\xe2\x80\x9d, Schor, 478 U.S. at 851, and\nwould take the AU well beyond the \xe2\x80\x9cparticularized area of law\xe2\x80\x9d which\nnon-Article III tribunals may well be able to handle. Id. at 852.4\nPermitting such determinations by an AU would also run counter to\nthe strong tradition that constitutional issues should not be resolved in\nadministrative proceedings.5 Administrative agencies are often said to\n\xe2\x80\x9chave no power to pass upon the constitutionality of administrative or\nlegislative action.\xe2\x80\x9d Zeigler Coal Co. v. Marshall, 502 F. Supp. 1326, 1330\n(S.D. 111. 1980).6\n4This is illustrated by the likely response to a challenge by the Special Counsel The state (or state offi\xc2\xad\ncial) will assert that the citizenship requirements were established by \xe2\x80\x9claw." This would require the ALJ\nfirst to construe the state law, something about which even Article III courts normally defer to state\ncourts. See, e.g , Horlonmlle J S D. No 1 v Hortonville Ed .455\xe2\x80\x99?!, 426 U.S 482, 488 (1976) (\xe2\x80\x9cWe are, of\ncourse, bound to accept the interpretation of Wisconsin law by the highest court of the State ") (citing\ncases), MuUaney v Wilbur, 421 U.S 684,691 (1975) (\xe2\x80\x9cThis Court, however, repeatedly has held that state\ncourts are the ultimate expositors of state law.\xe2\x80\x9d) (citing cases) Next, the AU would have to decide\nwhether the statute accords with the state\xe2\x80\x99s constitution C f K izzier Chevrolet Co v Geneml Motors\nCorp , 705 F2d 322, 329 (8th Cir), cert denied, 464 U.S. 847 (1983) (\xe2\x80\x9cWhere state law supplies the rule\nof decision, it is the duty of federal courts to ascertain and apply that law.\xe2\x80\x9d) Then, the AU will have to\ndetermine whether under the Supreme Court\xe2\x80\x99s jurisprudence, the citizenship requirement is justified\nFinally, the AU will have to determine whether the individual state official is immune from the civil\npenalty portion of the judgment under the common-law doctnne of official immunity He would further\nhave to determine whether he can require the state (by er\\joining the state official) to hire the individual.\n8 U S C \xc2\xa7 1324b(g)(2)(B)(m) and (iv).\n6Although your Memorandum only raises the issue of state laws, your reading of the statute would also\nrequire us to resolve the issue of whether the Special Counsel could challenge as unconstitutional not only\nstate laws but also federal laws, regulations, and executive orders. 8 U S.C \xc2\xa7 1324b(a)(2)(C) (discrimina\xc2\xad\ntion compelled by any \xe2\x80\x9claw, regulation, or executive order\xe2\x80\x9d) If the Special Counsel could bring such a\nchallenge to federal laws, regulations, or executive orders, this would raise substantial difficulties For\nAUs to be vested with the authority to ac^udicate the constitutionality of federal statutes would plainly\nbe contrary to the oft-made Supreme Court pronouncement, alluded to above, that \xe2\x80\x9c[a]4judication of the\nconstitutionality of congressional enactments has generally been thought beyond the jurisdiction of\nadministrative agencies \xe2\x80\x9d Johnson v Robison, 415 U.S 361, 368 (1974) (quoting Oestereich v. Selective\nService Bd., 393 U.S. 233, 242 (1968)) (Harlan, J , concurring in result) Moreover, for ALJs to decide the\nconstitutionality of federal executive orders and regulations would raise two severe constitutional prob\xc2\xad\nlems. First, the urutary executive established by the Constitution in Article II forbids one of the President\xe2\x80\x99s\nsubordinates to challenge in court the constitutionality of an executive order. Second, it would also test\nthe limits of Article Ill\xe2\x80\x99s \xe2\x80\x9ccase or controversy\xe2\x80\x9d requirement to suggest that the Special Counsel (assuming\nthe AU concurred) could challenge in court the regulations of another part of the executive branch\n6Whether or not this is true \xe2\x80\x94 and we note in passing that the authonty of an administrative agency to\npass upon the constitutionality of state and federal legislation may well differ \xe2\x80\x94 we are hesitant to\nimpute to Congress a desire to vest in the AUs created by IRCA the power to find a state law unconsti\xc2\xad\ntutional when that is no where alluded to in the statute or legislative history.\n75\n\n\x0cWe raise these issues above only to illustrate the dilemmas presented\nif the plain meaning of the statute is disregarded.7 We do not think\nCongress would have left these complex and difficult issues unad\xc2\xad\ndressed, and this too, favors adherence to the plain language of the\nstatute. We have therefore concluded that discrimination because of citi\xc2\xad\nzenship status that is required in order to comply with state law is except\xc2\xad\ned from the definition of an unfair immigration-related practice within\nthe meaning of 8 U.S.C. \xc2\xa7 1324b.\nThat said, we note Mr. Elhajomar is not without remedies. He may chal\xc2\xad\nlenge the validity of the Hawaii law in state or federal court. The\nDepartment could assist him, if it chose, through a Civil Rights Division\namicus brief or by intervening in such a proceeding. Alternatively, the\nDepartment might take steps to terminate federal monies unless the con\xc2\xad\nstitutional concern was rectified. For these reasons, as suggested earlier,\nwe believe you should raise any arguable unconstitutionality of a state\nlaw with the Civil Rights Division. However, Congress has chosen to\nexempt discrimination based on citizenship status that is required by\n\xe2\x80\x9claw, regulation, or executive order\xe2\x80\x9d from the meaning of \xe2\x80\x9cunfair immigration-related employment\xe2\x80\x9d practices and we believe that language must\ngovern. 8 U.S.C. \xc2\xa7 1324b(a). Therefore, the Special Counsel may not use\nIRCA to challenge action taken pursuant to state law.\nD ouglas W. K miec\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n7In addition, a reading at odds with the plain meaning would mean that although the Special Counsel\ncould sue a state, the complainant would probably be barred by the Eleventh Amendment. The Eleventh\nAmendment would not preclude a suit by the Special Counsel against a state, for the Special Counsel is\nnot suing as \xe2\x80\x9ca Citizen of another State.\xe2\x80\x9d Moreover, the Court has held that the Eleventh Amendment\ndoes not bar suits by the federal government against a State. Monaco v. Mississippi, 292 U.S. 313, 329\n(1934) However, the statute also provides for a private right of action if the Special Counsel does not act\non a matter. 8 U.S.C. \xc2\xa7 1324b(d)(2) It would be, nevertheless, problematic for Mr Elhajomar to be per\xc2\xad\nmitted to sue a state in his individual capacity\n76\n\n\x0c'


b"Service by Federal Officials on the Board of Directors of the\nBank for International Settlements\n18 U .S.C . \xc2\xa7 208(a) does not prohibit the C hairm an o f the Federal Reserve B oard and the President\no f the F ederal R eserve B ank of New Y ork from serving in their official capacities on the Board\no f D irectors o f the B ank for International Settlem ents\n\nMay 6, 1997\nM\n\nem o ran d u m\n\nO p in io n\n\nfo r t h e\n\nG en e r a l C o u n sel\n\nFe d e r a l R e s e r v e B o a r d\n\nYou have asked whether, absent a waiver, 18 U.S.C. \xc2\xa7 208(a) would forbid the\nChairman of the Federal Reserve Board and the President of the Federal Reserve\nBank of New York from serving in their official capacities on the Board of Direc\xc2\xad\ntors of the Bank for International Settlements (\xe2\x80\x9c BIS\xe2\x80\x9d ). We believe that the statute\nwould not forbid this service.\nThe BIS was formed in 1930 \xe2\x80\x9c for the main purpose of collecting and transfer\xc2\xad\nring German reparations.\xe2\x80\x9d Charles J. Woelfel, Encyclopedia o f Banking and\nFinance 95 (10th ed. 1994). It is now \xe2\x80\x9c the major forum for consultation, coopera\xc2\xad\ntion, and information exchange among central banks, including member central\nbanks of thirty-two countries of which eight are on the BIS Board.\xe2\x80\x9d Letter for\nHon. Donald W. Riegle, Jr., Chairman, Committee on Banking, Housing and\nUrban Affairs, United States Senate, from Alan Greenspan, Chairman, Federal\nReserve Board at 1 (June 20, 1994). Central banks own about 85 percent of the\nBIS\xe2\x80\x99s stock, with the remaining 15 percent in the hands of private shareholders.\nE ncyclopedia o f Banking and Finance at 96. Although the BIS is a profit-making\ninstitution and declares an annual dividend, \xe2\x80\x9c [t]he right of representation and\nvoting, in proportion to the number o f shares subscribed by each country, may\nbe exercised by the central bank of that country, or by its nominee, or in cases\nwhere the central bank does not nominate an institution, the BIS may designate\na financial institution not objected to by the central bank of the country in ques\xc2\xad\ntion.\xe2\x80\x9d Federal Reserve Board Staff, Background Note on the Federal R eserve\xe2\x80\x99s\nRelationship with the Bank fo r International Settlements at 11 (June 1994).\nThe BIS reserves two seats on its Board for the central bank of the United\nStates, but the Federal Reserve Board did not take up these seats until 1994. At\nthat time, the Chairman assumed one seat and the President of the Federal Reserve\nBank o f New York assumed the other.\nUnder 18 U.S.C. \xc2\xa7 208(a) (1994), an officer or employee of the executive branch\nmay not participate personally or substantially in any particular matter in which\nhe or she has a financial interest. The statute also imputes certain other financial\ninterests to the officer and employee. These interests include those of any\n\xe2\x80\x9c organization in which [the officer o r employee] is serving as . . . director.\xe2\x80\x9d\n88\n\n\x0cService by Federal Officials on the Board o f Directors o f the Bank fo r International Settlements\n\nAn opinion of our office, issued November 19, 1996, concluded that 18 U.S.C.\n\xc2\xa7 208(a) \xe2\x80\x9c would prevent a government employee from serving on the board of\ndirectors of an outside organization in his or her official capacity, in the absence\nof: (1) statutory authority or a release of fiduciary obligations by the organization\nthat might eliminate the conflict of interest, or (2) a waiver of the requirements\nof \xc2\xa7 208(a), pursuant to 18 U.S.C. \xc2\xa7 208(b).\xe2\x80\x9d Service on the B oard o f D irectors\no f Non-Federal Entities by Federal Bureau o f Investigation Personnel in Their\nOfficial Capacities, 20 Op. O.L.C. 379, 379 (1996). We reasoned that an\n\xe2\x80\x98 \xe2\x80\x98employee performs official duties for [his or her agency] in serving on the board\n\nof the outside organization\xe2\x80\x9d and that, therefore, \xe2\x80\x9c \xc2\xa7208 would apply to any action\nthe employee takes as a director that affects the financial interests of the outside\norganization.\xe2\x80\x9d Id. at 380. However, where Congress has authorized the service\nby statute, the official \xe2\x80\x9c serves . . . in an ex officio rather than personal capacity,\xe2\x80\x9d\nowes a duty only to the United States, and does not violate \xc2\xa7 208. See Applicability\no f 18 U.S.C. \xc2\xa7 2 0 8 to Proposed Appointment o f Government Official to the Board\no f Connie Lee, 18 Op. O.L.C. 136, 138 (1994).\n\n' On the particular facts here, we believe that the Chairman of the Federal Reserve\nBoard and the President of the Federal Reserve Bank of New York have statutory\nauthority to serve on BIS\xe2\x80\x99s Board and that \xc2\xa7208 thus does not preclude or affect\nthat service. The Federal Reserve Board has broad statutory authority over negotia\xc2\xad\ntions between elements of the central banking system in the United States and\nforeign banks:\nThe Board of Governors of the Federal Reserve System shall exer\xc2\xad\ncise special supervision over all relationships and transactions o f\nany kind entered into by any Federal reserve bank with any foreign\nbank or banker, or with any group o f foreign banks or bankers,\nand all such relationships and transactions shall be subject to such\nregulations, conditions, and limitations as the Board may prescribe.\nNo officer or other representative of any Federal reserve bank shall\nconduct negotiations of any kind with the officers or representatives\nof any foreign bank or banker without first obtaining the permission\nof the Board of Governors of the Federal Reserve System. The\nBoard o f Governors o f the Federal Reserve System shall have the\nright, in its discretion, to be represented in any conference or nego\xc2\xad\ntiations by such representative or representatives as the Board may\ndesignate.\n\n12 U.S.C. \xc2\xa7348a (1994) (emphasis added). The \xe2\x80\x9c special supervision\xe2\x80\x9d provided\nfor by \xc2\xa7348a extends not only to transactions but also to \xe2\x80\x9c relationships,\xe2\x80\x9d which\nare subject to conditions prescribed by the Board of Governors. Relationships with\ngroups of foreign banks are specifically covered. The Board of Governors, more\xc2\xad\n89\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nover, possesses not only the power to regulate the specified international activities\nof the member banks but also the right to take part in such international activities\nin its own behalf.\nTo be sure, we ordinarily might well find that a provision of this nature would\nnot amount to such statutory authority for service on an outside board as would\novercome 18 U.S.C. \xc2\xa7 208(a). The specific focus of the provision is the Board\nof Governors\xe2\x80\x99 control over Federal reserve banks, rather than its own authority\nto enter into \xe2\x80\x9c relationships\xe2\x80\x9d with foreign banking organizations. Furthermore, the\nprovision does not expressly refer to directorships.\nNevertheless, there is an additional consideration that weighs in favor of reading\n\xc2\xa7348a as authority for the Chairman and the President of the Federal Reserve\nBank of New York to serve on B IS \xe2\x80\x99s Board. That service is a means by which\nthe United States negotiates with foreign governments, through their central banks.\nAs President Bush suggested in a signing statement dealing with a provision that\nwould have required Federal banking agencies to hold certain discussions with\nthe BIS, the President has the power to control such communications because\nthey are an exercise of his \xe2\x80\x9c constitutional authority to conduct the international\nrelations of the United States.\xe2\x80\x9d Statement on Signing the Federal Deposit Insur\xc2\xad\nance Corporation Improvement Act o f 1991, 2 Pub. Papers of George Bush 1649,\n1650(1991).\nIn this area, the President has broad latitude. See, e.g.. Department o f Navy\nv. Egan , 484 U.S. 518, 529 (1988) (the Supreme Court has \xe2\x80\x9c recognized \xe2\x80\x98the gen\xc2\xad\nerally accepted view that foreign policy was the province and responsibility of\nthe Executive\xe2\x80\x99 \xe2\x80\x9d ) (quoting Haig v. Agee, 453 U.S. 280, 293-94 (1981)); Alfred\nDunhill o f London, Inc. v. Republic o f Cuba, 425 U.S. 682, 705-06 n.18 (1976)\n( \xe2\x80\x9c [T]he conduct of [foreign policy] is committed primarily to the Executive\nBranch . . . .\xe2\x80\x9d ); United States v. Louisiana, 363 U.S. 1, 35 (1960) (the President\nis \xe2\x80\x9c the constitutional representative of the United States in its dealings with for\xc2\xad\neign nations\xe2\x80\x9d ). See also Earth Island Inst. v. Christopher, 6 F.3d 648, 652-54\n(9th Cir. 1993); Ward v. Skinner, 943 F.2d 157, 160 (1st Cir. 1991) (Breyer,\nJ.) ( \xe2\x80\x9c [T]he Constitution makes the Executive Branch . . . primarily responsible\xe2\x80\x9d\nfor the exercise of \xe2\x80\x9c the foreign affairs power.\xe2\x80\x9d ), cert, denied, 503 U.S. 959\n(1992); Sanchez-Espinoza v. Reagan, 770 F.2d 202, 210 (D.C. Cir. 1985) (Scalia,\nJ ) (\xe2\x80\x9c [B]road leeway\xe2\x80\x9d is \xe2\x80\x9c traditionally accorded the Executive in matters o f for\xc2\xad\neign affairs.\xe2\x80\x9d ). For example, statutory qualifications for officials who negotiate\nfor the United States are suspect. See Constitutionality o f Statute Governing\nAppointment o f United States Trade Representative, 20 Op. O.L.C. 279 (1996).\nAlthough we do not doubt that Congress may impose conflict of interest restric\xc2\xad\ntions on those who engage in such negotiations, the breadth of the President\xe2\x80\x99s\npower counsels a broad reading o f congressional authorization for particular\nmeans by which the power may be exercised. See United States v. Curtiss-Wright\nExport C orp., 299 U.S. 304, 320-22 (1936).\n90\n\n\x0cService by Federal Officials on the Board o f Directors o f the Bank fo r International Settlements\n\nHere, Secretary of State Christopher expressed the view \xe2\x80\x9c that active participa\xc2\xad\ntion of the Federal Reserve on the BIS Board will serve U.S. foreign policy\ninterests\xe2\x80\x9d and declared that \xe2\x80\x9c Federal Reserve membership on the BIS Board has\nthe full support of the Department of State.\xe2\x80\x9d Letter for Alan Greenspan, Chair\xc2\xad\nman, Board of Governors, Federal Reserve System, from Warren Christopher, Sec\xc2\xad\nretary of State (June 15, 1994). The directorships in question, like the United\nStates\xe2\x80\x99 membership in other international bodies, is a mode of conducting our\nforeign relations. Given this setting, we believe that 12 U.S.C. \xc2\xa7 348a constitutes\nstatutory authority for holding the directorships, notwithstanding 18 U.S.C.\n\xc2\xa7 208(a).\nRICHARD L. SHIFFRIN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n91\n\n\x0c"


b'Presidential Control of Wireless and Cable\nInformation Leaving the United States\nThe President has authority under the Communications Act of 1934 to control any radio station so as to\nprevent the transmission from the United States of any message, or part thereof, inimical to the\nnational security and foreign policy of the nation. Specific emergency powers like those granted\nover radio are not contained in the Communications Act, or elsewhere, with respect to cables. But\nshould the President as Commander in Chief and under his other constitutional powers deem such\naction essential to the protection of the armed forces or the national security, or the protection of\nshipping, in a time of unlimited national emergency, he could exercise similar control through the\nArmy or Navy over the transmission by cable of messages from the United States.\nA great deal can be done by the President with respect to censorship of second, third, and fourth class\nmail; but in view of the protection which the existing statutes afford to sealed first class mail, the\nproblem there is a difficult one, and it is still being studied.\n\nJune 19, 1941\n\nMEMORANDUM OPINION FOR THE DIRECTOR\nOFFICE OF GOVERNMENT REPORTS\nI. Wireless\nSection 606(c) of the Communications Act of 1934 1 provides that, upon proclamation by the President that there exists a national emergency, the President may\nsuspend or amend for such time as he sees fit the rules and regulations applicable\nto any and all radio stations within the jurisdiction of the United States, and may\ncause the closing of any station and the removal of its apparatus and equipment, or\nhe may authorize the use or control of any such station and/or its apparatus and\nequipment by any department of the government under such regulations as he may\nprescribe, upon just compensation to the owners.\nUnder this power the President may under existing circumstances take over and\ncontrol the radio stations of the country. If he does not desire to go that far, the\nPresident in my opinion may, through appropriate agents and regulations, control\nany radio station so as to prevent the transmission from the United States of any\nmessage, or part thereof, inimical to the national security and foreign policy of the\nnation.\nAttention is called, however, to the provisions of section 605 of the Communications Act of 1934 that, \xe2\x80\x9cno person not being authorized by the sender shall\nintercept any communication [by wire or radio] and divulge or publish the . . .\ncontents . . . of such intercepted communication to any person.\xe2\x80\x9d 48 Stat. at 1104.\nThe Supreme Court has held that this provision applies to wiretapping and\ninterception of messages, even by the government, for the purpose of obtaining\n1\n\nAct of June 19, 1934, ch. 652, 48 Stat. 1064, 1104\xe2\x80\x9305, codified at 47 U.S.C. \xc2\xa7 606.\n\n82\n\n\x0cPresidential Control of Wireless and Cable Information Leaving the United States\n\nevidence. Weiss v. United States, 308 U.S. 321 (1939); Nardone v. United States,\n308 U.S. 338 (1937). Attention is also called to section 326 of said Communications Act, which prohibits the Commission from establishing any censorship over\nany radio communications or signals. Notwithstanding these provisions, I believe\nthat under his emergency powers referred to above, the President may exercise the\ncontrol above stated. Whether or not information obtained through the exercise of\nthis control could be used as evidence presents a different question, and I express\nno opinion about that for the moment.\nII. Cable\nSpecific emergency powers like those granted over radio are not contained in\nthe Communications Act, or elsewhere, with respect to cables. But should the\nPresident as Commander in Chief and under his other constitutional powers deem\nsuch action essential to the protection of the armed forces or the national security,\nor the protection of shipping, etc., in a time of unlimited national emergency such\nas now exists, he could, I believe, exercise similar control through the Army or\nNavy over the transmission by cable of messages from the United States. On\nApril 28, 1917, censorship of cable, telegraph, and telephone lines was established\nby Executive Order 2604, which recited the authority of the President under the\nConstitution and the Joint Resolution of April 6, 1917 declaring an existence of a\nstate of war. Legislation was subsequently enacted specifically authorizing\ncensorship (Trading with the Enemy Act2), but this legislation was only for the\nperiod of the war of 1917\xe2\x80\x9318. Similar legislation is desirable to put the matter\nbeyond doubt, although I believe the President may act without it.\nIII. Mail\nDuring the last war there was no censorship of mail until October 12, 1917,\nwhen it was established under the authority contained in the Trading with the\nEnemy Act of October 6, 1917 (\xc2\xa7 3(d)). This statutory provision is no longer in\nexistence. It is clear a great deal can be done with respect to second, third, and\nfourth class mail; but in view of the protection which the existing statutes afford to\nsealed first class mail, the problem there is a difficult one, and I am still studying\nit.\nCHARLES FAHY\nAssistant Solicitor General\n\n2\n\nAct of Oct. 6, 1917, ch. 106, 40 Stat. 411.\n\n83\n\n\x0c'


b"O ctober 5, 1977\n\n77-57\n\nMEMORANDUM OPINION FOR THE\nASSOCIATE ATTORNEY GENERAL\nImpact of Panama Canal Zone Treaty on the Filling\nof the Vacancy in the Office of the District Judge\nfor the United States District Court for the District\nof the Canal Zone\n\nI am replying to your inquiry whether and how the current vacancy\nin the Office of the District Judge for the United States District Court\nfor the District of the Canal Zone should be filled in the light of the\nproposed Canal Zone Treaty.\nThe District Judge for the United States District Court for the Canal\nZone is appointed for a term of 8 years and serves until his successor is\nappointed unless the judge is sooner removed by the President for\ncause. 3 Canal Zone Code, \xc2\xa7 5. Under the proposed Panama Canal\nTreaty, Article XI, 1, 5, the courts of the United States in the Canal\nZone will be abolished after the expiration of a period of 30 months\nfollowing the entry into force of the Treaty.1 Hence, it is likely that the\nU.S. District Court for the Canal Zone will be abolished prior to the\nexpiration of his statutory term.2 In our opinion, the abolition of the\ndistrict court will automatically terminate the tenure of the judge ap1 D uring that transition period, the jurisdiction o f the courts will be diminished because\nthey will be unable to take any new cases o f a private civil nature; they will, however,\nretain full jurisdiction to dispose of cases instituted and pending prior to the entry into\nforce of the Treaty. Article XI, 6. It also appears that the jurisdiction of the United States\ncourts in the Canal Zone in criminal cases during the transitional period will be narrower\nthan it is now. Article XI, 2.\n2 Article X, 7, of the Treaty contains certain provisions designed to protect persons\nw ho are displaced as the result o f the discontinuance of United States activities in the\nCanal Zone. None of these, however, appears to be applicable. Reemployment by the\nUnited States is limited to persons employed by the Panama Canal Company o r the Canal\nZone Government. The district judge does not come within either category. The Treaty\nalso provides that persons previously employed in activities for which the Republic of\nPanama assumes responsibility as the result o f this Treaty \xe2\x80\x9cwill be continued in their\nemployment to the maximum extent feasible by the Republic of Panama.\xe2\x80\x9d [Emphasis\nadded.] It is safe to assume that the Republic o f Panama will not consider it \xe2\x80\x9cfeasible\xe2\x80\x9d to\ncontinue the United States district judge in office when it becomes fully responsible for\nthe judicial system in the Canal Zone.\n\n236\n\n\x0cpointed to that court. We believe, however, that it would be preferable\nfor legislation implementing the Treaty to provide, as in the Alaska and\nHawaii Statehood Acts,3 that the tenure of the district judge shall\nterminate upon the abolition of his court.4\nThe question whether the tenure of a judge outlasts the existence of\nhis court is not new. It first became prominent in 1802 at the time of\nthe repeal of the Circuit Court Act passed toward the end of the\nAdams Administration. A t that time Congress took the position that the\nabolition of the circuit courts terminated the tenures of the circuit\njudges even though they held commissions during good behavior. The\nconstitutionality of that action, however, was never judicially tested\nbecause at that time the United States had not waived its immunity\nfrom suit in such cases. See Frankfurter and Landis, \xe2\x80\x9cThe Business of\nthe Supreme Court,\xe2\x80\x9d pp. 26-28, fn. 75. Congress apparently was aware\nof the vulnerability of its position. Thereafter courts whose judges had\nlifetime tenure were as a rule abolished only while the offices were\nvacant.\nThe effect of the abolition of a court on the tenure of its judges arose\nregularly when a territory became admitted as a State, because the\nadmission had the effect of abolishing the territorial courts even if the\nAct of admission did not expressly so provide. Benner v. Porter, 50 U.S.\n(9 How.) 235 (1850). As far as we have been able to determine, only\nthe Acts admitting Alaska and Hawaii dealt specifically with the prob\xc2\xad\nlem here at hand. Those statutes provided expressly for the term of the\nterritorial courts and that the tenure of the territorial judges should\nsimultaneously come to an end. We have been informed by the Admin\xc2\xad\nistrative Office o f United States Courts that the territorial judges in\nthose two States did not receive any compensation following the aboli\xc2\xad\ntion of the territorial courts, other than their retirement benefits, if any,\nwhich had been specifically preserved by the Acts of admission.5\nThe earlier Statehood Acts appear to have been silent on both issues,\ni.e., the abolition of territorial courts and the termination of the tenure\nof the territorial judges.\xc2\xae We have not been able to discover the actual\npractice that prevailed in those situations. The last admissions antedat\xc2\xad\ning those of Alaska and Hawaii occurred in 1912 (Arizona and New\nMexico), and the Administrative Office of United States Courts, estab\xc2\xad\nlished only in 1939, has no pertinent records.\nWe suspect, but cannot establish definitively, that when, upon the\nadmission of a new State, the territorial courts located in it were\n5 Section 18 o f the Alaska Statehood Act and \xc2\xa79(a) o f the Hawaii Statehood Act.\n\xe2\x80\xa2 An appointment of the judge for a period to terminate 30 months after the entry into\nforce of the Panama Canal Treaty would not solve the problem because the effect of an\nofficer\xe2\x80\x99s appointment is governed by the statute under which he is appointed and not by\nthe language of the nomination or of the commission. Quackenbush v. United States, 177\nU.S. 20, 27 (1900); 2 Op. A tt\xe2\x80\x99y. Gen. 410, 412 (1831); 16 Op. A tt\xe2\x80\x99y. Gen. 656 (1880).\n\xe2\x96\xa0Alaska Statehood Act, \xc2\xa7 12; Hawaii Statehood Act, \xc2\xa7 14.\n\xe2\x80\xa2T h e Acts o f admission of New Mexico, Oklahoma, and Wyoming contained virtually\nidentical standard clauses, which were silent on this issue.\n\n237\n\n\x0cabolished, the territorial judges simultaneously lost their judicial com\xc2\xad\nmissions and their right to compensation. Any claim of a territorial\njudge for his compensation after the termination of his court presum\xc2\xad\nably would have resulted in his removal.7\nT here are several grounds for rationalizing the limited tenure of\nterritorial judges. They are, however, inconclusive on the point here\ninvolved. Glidden v. Zdanok, 370 U.S. 530, 545-547 (1962), explains\nthat the territorial courts were staffed with judges who did not have\nlife tenure, because, in view of the temporary nature of the territorial\nstatus, it would have been impractical to invest the judges of those\ntransitional courts with a tenure \xe2\x80\x9cwhich Congress could not put to use\nand that the exigencies o f the territories did not require\xe2\x80\x9d (at 547). This\npassage is equivocal on the issue here involved. It might merely mean\nthat by giving the territorial judges limited tenure, Congress could\nreduce the Government\xe2\x80\x99s financial burden by having to pay the judges\nafter the admission of the State only for the duration o f their unexpired\nterms\xe2\x80\x94until recently usually 4 years\xe2\x80\x94rather than for life.\nM oore\xe2\x80\x99s Federal Practice Vol. I, \xc2\xa7 0.4[1], points out (63-64) that\nlegislative courts such as territorial courts are exempt from the require\xc2\xad\nments o f Article III, \xc2\xa7 1, o f the Constitution that judges shall hold their\noffices during good behavior and that their compensation cannot be\ndiminished while in office. This passage also is silent as to whether the\nabolition of a territorial court results in the termination of the judge\xe2\x80\x99s\ntenure and o f his right to compensation in the absence of a specific\nstatutory provision to that effect. It does, however, support the consti\xc2\xad\ntutionality o f legislation, similar to the Alaska and Hawaii Statehood\nActs, which provide expressly that upon the abolition of the court the\njudge\xe2\x80\x99s tenure should come to an end even if his statutory term had not\nexpired at that time.\nWe therefore conclude that the tenure of a Canal Zone judge termi\xc2\xad\nnates when his court is abolished even if his statutory term has not\nexpired at that time. In order, however, to eliminate any possible doubt\non this issue and to obviate any future dispute or litigation on the issue,\nwe recommend that a provision to that effect be included in legislation\nimplementing the Treaty.\nJohn M . H arm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n7 McAllister v. United States, 141 U.S. 174 (1891), confirmed the President\xe2\x80\x99s unlimited\npow er to remove territorial judges. That power was questioned only in 1926 (Myers v.\nUnited States, 272 U.S. 52, 157-158), and denied in Humphrey's Executor v. United States,\n295 U.S. 602, 626-627, 629 (1935).\n\n238\n\n\x0c"