b"Authority of the Chrysler Corporation Loan Guarantee Board\nto Issue Guarantees\nT he C hrysler C orporation Loan G uarantee Board has the authority, under \xc2\xa7 4(a) o f the\nC hrysler C orporation Loan G uarantee A ct, 15 U.S.C. \xc2\xa7 1863(a), to issue loan guaran\xc2\xad\ntees even though C ongress has not appropriated funds in advance to m ake payments\nunder the guarantees in the event o f a default.\nT he A ttorney G eneral concurs in the C om ptroller G eneral\xe2\x80\x99s opinion (Comp. Op. File B197380 (A pril 10, 1980)) that the Board has the authority until D ecem ber 31, 1983, to\nissue loan guarantees in the am ount up to S I.5 billion o f contingent liability for loan\nprincipal outstanding at any one time and additional am ounts for loan interest.\n\nApril 23, 1980\nT\n\nhe\n\nS ecretary\n\nof th e\n\nT\n\nreasury\n\nThis is in response to your letter of April\n16, 1980, requesting my opinion on the authority of the Chrysler Cor\xc2\xad\nporation Loan Guarantee Board, of which you are chairman, to issue\nguarantees under the Chrysler Corporation Loan Guarantee Act of\n1979 (Act), 15 U.S.C. \xc2\xa7 1861 et seq. You ask whether the Board may\nissue guarantees even though Congress has not appropriated funds in\nadvance to make payments under the guarantees in the event of a\ndefault. You also enclosed an opinion o f the Comptroller General,\nconstruing the Chrysler guarantee appropriation act, and asked me to\nindicate whether I concur in his conclusions.\nSection 4(a) of the Act, 15 U.S.C. \xc2\xa7 1863(a), authorizes the Board to\nguarantee the payment of principal and interest on loans to Chrysler\nCorporation. Under \xc2\xa7 8(a) of the Act, 15 U.S.C. \xc2\xa7 1867(a), loan guaran\xc2\xad\ntees extended by the Board may not at any one time exceed $1.5 billion\nin the aggregate principal amount outstanding. The Board\xe2\x80\x99s guarantee\nauthority is further limited by \xc2\xa7 15(b) of the Act, 15 U.S.C. \xc2\xa7 1874(b),\nwhich provides:\nM y D e a r M r. S e c r e ta r y :\n\nNotwithstanding any other provision of this Act, the au\xc2\xad\nthority of the Board to make any loan guarantee under\nthis Act shall be limited to the extent such amounts are\nprovided in advance in appropriation acts.\n\n12\n\n\x0cAlmost contemporaneously with the passage of the A ct,1 Congress\nenacted an appropriation act providing:\nThat the following sum is appropriated, out of any money\nin the Treasury not otherwise appropriated, for the fiscal\nyear ending September 30, 1980:\nD EPA R TM EN T O F T H E TREASURY\nBUREAU O F G O V ER N M EN T FIN A N C IA L\nOPERA TIO NS\nCHRYSLER CORPORATION LOAN G U A R A N TEE\nPROGRAM\nFor necessary administrative expenses as authorized by\nthe Chrysler Corporation Loan Guarantee Act of 1979,\n$1,518,000. Total loan commitments and loan guarantees\nmay be extended in the amount of $1,500,000,000 of con\xc2\xad\ntingent liability for loan principal and for such additional\nsums as may be necessary for interest payments, and com\xc2\xad\nmitment is hereby made to make such appropriations as\nmay become necessary to carry out such loan guarantees.\nP.L. No. 96-183, 93 Stat. 1319 (1980). The question presented here is\nwhether the appropriation-in-advance condition in \xc2\xa7 15(b) of the Act is\nsatisfied by the appropriation act.\nChrysler\xe2\x80\x99s prospective underwriters have questioned whether\n\xc2\xa7 15(b)\xe2\x80\x99s condition that amounts be provided in advance in appropria\xc2\xad\ntion acts could be construed to require that funds be appropriated in\nadvance to make payments under the guarantees in the event of a\ndefault, a condition that is not satisfied by the appropriation act. Such a\nconstruction is supported by Congress\xe2\x80\x99 use of words in \xc2\xa7 15(b)\xe2\x80\x94\xe2\x80\x9cLim\xc2\xad\nited to the extent such amounts are provided in advance in appropria\xc2\xad\ntion acts\xe2\x80\x9d\xe2\x80\x94which are almost identical to those in \xc2\xa7 401(a) of the Con\xc2\xad\ngressional Budget Act of 1974, 31 U.S.C. 1351(a); \xc2\xa7 401(a) requires that\nbills providing \xe2\x80\x9cnew spending authority\xe2\x80\x9d contain provisions limiting\nsuch authority \xe2\x80\x9cto such extent or in such amounts as are provided in\nappropriation acts.\xe2\x80\x9d 2 The legislative history of that Act reveals that\n\xc2\xa7 401(a) was intended to require the appropriation of funds.3 Nonethe\xc2\xad\n\xe2\x80\x99 T h e C h ry s le r C o r p o ra tio n L o a n G u a r a n te e A c t w as e n a c te d on J a n u a ry 7, 1980: th e a p p ro p ria tio n\na c t, P .L . N o . 9 6 -1 8 3 , 93 S tat. 1319 (1980), w as e n a c te d J a n u a ry 2. 1980.\n2 S e c tio n 401(a) is n o t c o n tro llin g h e re b e c a u se it ex p ressly e x e m p ts c o n tr a c ts o f g u a ra n te e s fro m its\nc o v e ra g e , b u t th e sim ilarity in th e la n g u a g e c o u ld b e v ie w e d as a n in d ic a tio n th a t th e s ta tu te s be\nc o n s tru e d p a ri passu. C f N orthcross v. M em p h is B oard o f E d u c a tio n , 412 U .S. 427, 428 (1973).\n3 T h e H o u se R e p o rt states:\nT h e bill [C o n g ressio n al B u d g et A c t o f\nC o n g re s s io n a l b u d g e t p ro cess. U n d e r\nc o n tr a c t a u th o rity , lo a n a u th o rity , a n d\nn o t ta k e e ffec t until, fu n d s were provided\n\n1974] in c o rp o ra te s b a c k d o o r sp e n d in g in to th e\nn e w p ro c e d u re s, b a c k d o o r s p e n d in g (s u c h a s\nm a n d a to ry o r o p e n -e n d e d e n title m e n ts ) c o u ld\nth ro u g h th e a p p ro p ria tio n s p ro cess.\n\nH . R ep . N o . 9 3 -6 5 8 , 9 3 rd C o n g ., 1st Sess. 17, reprinted in [1974] U .S. C o d e C o n g . & A d . N e w s 3462.\n3463 (em p h asis su p p lie d ).\n\n13\n\n\x0cless, I conclude on the basis of strong countervailing evidence in the\nlegislative history of the Chrysler Corporation Loan Guarantee Act\nthat \xc2\xa7 15(b) was not intended to require the appropriation of funds, but\nrather Congress\xe2\x80\x99 approval through the appropriations process of the\namount of loans that may be guaranteed by the Board.\nThe Senate version of \xc2\xa7 15(b) reported by the Senate Committee on\nBanking, Housing and Urban Affairs provided:\nNotwithstanding any other provisions of this Act, com\xc2\xad\nmitments to guarantee loans under the Act shall not\nexceed such limitations on such commitments as are pro\xc2\xad\nvided in general provisions of appropriation acts.\n125 Cong. Rec. S19019 (daily ed. December 18, 1979). The Senate\nReport explains the intent of the provision:\nThe intent of this language is to require that the limita\xc2\xad\ntions on loan guarantee authority under this Act be ap\xc2\xad\nproved in appropriation Acts without making any implica\xc2\xad\ntion that this action should be construed as conferring\nbudget authority.\nS. Rep. No. 93-463, 96th Cong., 1st Sess. 39 (1979).\nSection 15(b) was later amended on the floor of the Senate at the\nrequest of Senator Proxmire, the chairman of the Senate Committee on\nBanking, Housing and Urban Affairs, to conform to the provision in the\nHouse bill. Explaining that the Senate Appropriations Committee\xe2\x80\x99s staff\nhad requested the amendment, Senator Proxmire revealed that the staff\nwas concerned that the Senate version of \xc2\xa7 15(b) could be construed to\npermit the issuance of guarantees without first obtaining approval\nthrough the appropriation process:\nIt certainly was the intention of the Banking Committee\nnot to go around the Appropriations Committee and not\nto move into their jurisdiction or provide that there\nwould be a commitment or a guarantee before the Appro\xc2\xad\npriations Committee had an opportunity to pass on it. All\nthis [amendment] does as I say, is to make it conform to\nour intention, make it conform also to the language in the\nHouse bill.\n125 Cong. Rec. S I9018 (daily ed. December 18, 1979) (remarks of\nSenator Proxmire).\nUrging the adoption of the amendment, Senator Proxmire stated:\nThis is not a substantive amendment, and I am sure the\nSenator [Riegle] will agree when he looks at it. It cer\xc2\xad\ntainly is in the form of a technical correction. It does not\nchange in any way the intention which was indicated by\n14\n\n\x0cthe committee and, as I say, it is the same as the House\nlanguage.\nId. at S 19019.\nIt is clear from Senator Proxmire\xe2\x80\x99s remarks and the Senate Report\nthat the purpose of \xc2\xa7 15(b) was to ensure that no guarantees would be\nissued without first obtaining the approval of Congress through the '\nappropriation process of the total amount that could be guaranteed.4\nThis approval was obtained upon the passage of the appropriation act\nwhich permitted the Board to issue the full amount of guarantees\nauthorized under the A ct.5\nFor the above reasons, I conclude that the Board is empowered\npursuant to \xc2\xa7 15(b) of the Chrysler Corporation Loan Guarantee Act\nand P.L. No. 96-183 to issue guarantees even though Congress has not\nappropriated funds in advance to make payments under the guarantees\nin the event of a default. I also fully concur in the Comptroller G ener\xc2\xad\nal\xe2\x80\x99s opinion including his conclusion that the Board has the authoriiy\nuntil December 31, 1983, to issue loan guarantees in the amount up to\n$1.5 billion of contingent liability for loan principal outstanding at any\none time and additional amounts for loan interest. Comp. Op., File B197380 (April 10, 1980).\nSincerely,\nB e n ja m in\n\nR.\n\nC iv ile tti\n\n4\nS e n a to r M uskie, c h a irm a n o f th e S e n a te B u d g et C o m m itte e , a lso in d ic a te d o n th e flo o r o f th e\nS e n a te th a t u n d e r th e A c t C o n g re s s c o u ld c h o o s e in th e a p p ro p ria tio n p ro c e s s to lim it th e le v el o f\ng u a ra n te e s ra th e r th a n a p p ro p ria te fu n d s to c o v e r po ssib le fu tu re defau lts. S e e 125 C o n g . R ec . S 19188\n(d aily ed . D e c e m b e r 19, 1979). B ecau se th e g u a ra n te e s w o u ld re p re s e n t a c o n tin g e n t liab ility r a th e r\nth a n a c u r re n t o u tla y , h e u rg e d th e S e n a te to c h o o s e th e fo rm e r d u rin g th e a p p ro p r ia tio n p ro c e s s to\na v o id in c lu d in g th e SI.5 billion g u a ra n te e a u th o rity in th e c u rre n t b u d g e t. Id.\nh C o n firm in g th a t su c h a p p ro v a l w as su fficien t to satisfy th e c o n d itio n o f \xc2\xa7 15(b), th e H o u se R e p o rt\na c c o m p a n y in g th e a p p ro p ria tio n ac t stated :\nT h is u rg e n t a p p ro p ria tio n bill p ro v id e s th e n e c e ssa ry a u th o rity fo r th e F e d e ra l G o v \xc2\xad\nern m e n t to e n te r in to g u a ra n te e d loan a g re e m e n ts in an a m o u n t n o t to e x c e e d SI.5\nbillion for th e loan p rin c ip al.\nH. R ep. N o. 9 6 -7 1 9 , 9 6 th C o n g ., 1st Sess. 1 (1979).\n\n15\n\n\x0c"


b"Church Sanctuary for Illegal Aliens\nThe historical tradition o f providing church sanctuary for crim inal offenses was abolished by\nstatute in England in 1623 and th u s did not enter the United States as part of the common law.\nProviding church sanctuary to illegal aliens probably violates 8 U.S.C. \xc2\xa7 1324(a)(3), which\nforbids the harboring o f illegal aliens.\nC ourts are unlikely to recognize church sanctuary as legally justified under the Free Exercise\nClause o f the First Amendment, because disagreem ent with the governm ent\xe2\x80\x99s treatment of\naliens is not a religious belief th at is burdened by enforcem ent of the immigration laws, and\nthe governm ent has a compelling countervailing interest in uniform law enforcement.\n\nOctober 31, 1983\nM\n\nem orandum\n\nO p in io n\n\nfor th e\n\nD epu ty A ttorney G\n\neneral\n\nWe have discussed briefly at various times the legal issues raised by churches\noffering sanctuary to illegal aliens, recently those from El Salvador.1 We have\nundertaken to provide you with a preliminary and very general analysis of\nthose issues. In doing so, we have examined whether there is any law which\nmakes it illegal to provide sanctuary and have concluded that the practice\nprobably violates 8 U.S.C. \xc2\xa7 1324(a)(3). We have also examined whether a\ncharge of violating 8 U.S.C. \xc2\xa7 1324(a)(3) could be defeated by the defense that\nsanctuary should be recognized at common law or should be protected by the\nFirst Amendment. We do not believe that a court would recognize either of\nthese defenses.\nI. Historical Background\nThe practice of providing asylum in a church or other sacred place has roots\nin ancient history,2 although Christian churches were not recognized by Roman\nlaw as places of sanctuary until the 4th century.3 Ecclesiastical sanctuary\nspread with the growth of the church but the exact nature of the privilege varied\nfrom country to country.4 The English common law permitted an accused felon\n1 See W ash. Post, O ct. 1 1, 1983, at B l , col. 2; N.Y. Tim es, Sept. 21, 1983, at A18, col. 1; Tim e, Apr. 25,\n1983, a t 118; N.Y. T im es, Apr. 8, 1983, at A l, col. 1.\n2 See generally 24 Encyclopedia Americana 218 (1983); 19 Encyclopaedia Britannica 99 2 -9 3 (1971); 13\nEncyclopaedia o f the Social Sciences 5 3 4 (1935). See also Deuteronomy 4:41,4:42.\n3 Encyclopaedia Britannica, supra n o te 2, at 993.\n4 Encyclopedia o f the Social Sciences, supra note 2, at 535-36.\n\n168\n\n\x0cto seek sanctuary in a church where he could choose either to submit to trial or\nto confess and leave the country.5\nThe general demise of government recognition of church sanctuary took\nmany years and is usually seen as the result of the growth of strong central\ngovernments and the development of effective national systems of justice.6 In\nEngland, efforts to curtail abuses of church sanctuary or to eradicate sanctuary\naltogether achieved their first major success during the Reformation when\nmany of the recognized sanctuaries were abolished and replaced by a limited\nnumber of cities of refuge.7 Sanctuary for criminals in England was finally\nabolished in 1623.8\nWe have found no evidence that the colonists revived church sanctuary in\nAmerica.9 A search of both federal and state case law has revealed no case\nrecognizing church sanctuary as a legitimate barrier to law enforcement. It is\ntrue that American churches have been used at times as symbolic sanctuaries.\nDuring the Vietnam War, for example, some churches offered \xe2\x80\x9csanctuary\xe2\x80\x9d to\nyoung men who did not want to serve in the Armed Forces. See Bridges v.\nDavis, 443 F.2d 970 (9th Cir. 1971), cert, denied, 405 U.S. 919 (1972); United\nStates v. Beyer, 426 F.2d 773 (2d Cir. 1970). In both of the cited cases federal\nofficers eventually entered the churches and arrested individuals.10 Thus, as\nwith the protection presently being offered by churches to illegal aliens, the\ncontinued existence of the \xe2\x80\x9csanctuary\xe2\x80\x9d depended entirely upon the authorities\xe2\x80\x99\ndesire to avoid a confrontation.\nII. Legality of Sanctuary\nThe housing of illegal aliens by churches would appear to be a violation of 8\nU.S.C. \xc2\xa7 1324(a)(3), which forbids the harboring of illegal aliens.11 Although\nthe churches alert the INS that they are offering the aliens shelter, the most\nrecent case law rejects the notion that harboring must involve actually hiding\nthe alien or otherwise \xe2\x80\x9cclandestine\xe2\x80\x9d activity. United States v. Acosta D e Evans,\n531 F.2d 428,430 (9th Cir. 1981). Instead, harboring has been held to include\n5 W. Blackstone, 4 Commentaries on the Laws o f England 3 32-33 (1765).\n6 T. Plucknett, A Concise History o f the Common Law 382 (2d ed. 1936); Encyclopaedia o f the Social\nSciences, supra note 2, at 53 6 -3 7 (1935).\n7 Encyclopaedia Britannica, supra note 2, at 993.\n8 An Act for C ontinuing and Reviving o f Divers Statutes, and Repeal of D ivers O thers, 1623, 21 Jac. 298,\n303, ch. 28, \xc2\xa7 7. See also B lackstone, supra note 5, at 333. Sanctuaries from civil process lingered on in some\ndistricts until 1723. Encyclopaedia Britannica, supra note 2, at 993.\n9 For exam ple, church sanctuary is not referenced in such basic sources as The Records o f the Federal\nConvention (M. Farrand ed. 1966), The Debates in the Several State Conventions on the Adoption o f the\nFederal Constitution (J. Elliot ed. 1836), The Federalist Papers (C. R ossiter ed. 1961), or The Complete AntiFederalist (H. Storing ed. 1981).\n10 That the men had been taken from a church was recited in the facts o f both cases but played no part in\neither c ou rt\xe2\x80\x99s legal analysis.\nv\n11 Section 1324(a)(3) provides:\nAny person . . . w ho . . . w illfully o r know ingly conceals, harbors, or shields from detection, or\nattem pts to conceal, harbor, o r shield from detection, in any place, including any building or any\nm eans o f transportation . . . any alien . . . not duly adm itted by an im m igration o ffic e r. . . shall be\nguilty o f a felony . . . .\n\n169\n\n\x0cknowingly taking steps that \xe2\x80\x9cafford shelter to\xe2\x80\x9d an illegal alien, even if done\nwithout the purpose of concealing the alien from the immigration authorities.\nId. \xe2\x80\x9c[T]he term was intended to encompass conduct tending substantially to\nfacilitate an alien\xe2\x80\x99s \xe2\x80\x98remaining in the United States illegally,\xe2\x80\x99 provided, of\ncourse, the person charged has knowledge of the alien\xe2\x80\x99s unlawful status.\xe2\x80\x9d\nUnited States v. Lopez, 521 F.2d 437, 41 (2d Cir.) (citation omitted), cert,\ndenied, 423 U.S. 995 (1975). See also United States v. Cantu, 557 F.2d 1173,\n1180 (5th Cir. 1977), cert, denied, 434 U.S. 1063 (1978). The debate on the\nconduct covered by harboring is not entirely settled, however, as there are older\ncases that take a contrary position. See Susnjar v. United States, 27 F.2d 223\n(6th Cir. 1928). In addition, all of these cases involved defendants who simply\nkept silent about the aliens\xe2\x80\x99 presence, rather than individuals who have re\xc2\xad\nported the aliens\xe2\x80\x99 presence to the INS but who have continued to shelter them.\nWe believe that it is unlikely that the historical tradition of offering sanctu\xc2\xad\nary would provide a defense to an indictment under 8 U.S.C. \xc2\xa7 1324(a)(3). As\nnoted above, church sanctuary for criminal offenses was abolished by statute in\nEngland in 1623 and thus did not enter the United States as part of the common\nlaw. It has never, as far as we can discover, been recognized here by any state\nor federal legislation.12 The only way to use church sanctuary as a successful\ndefense on historical grounds would be to persuade the courts to resurrect the\ncommon law right. This is unlikely. Not only have centuries passed since\nsanctuary was abolished by statute, but there are major policy implications in a\ndecision to revive sanctuary. Sanctuary grew out of the need of primitive\nsocieties for a place of respite. Where blood feud and tribal concerns dominate\na society or the courts are weak or the executive is too ready to dispense harsh\nand bloody punishment, there may be a need for sanctuary. None of these\nconditions exists in this country today. We doubt the courts would be willing,\neven in the face of sympathetic facts, to hold that they were no longer able to\nenforce the country\xe2\x80\x99s laws in the church sanctuaries.13\nNor do we believe that a court would recognize sanctuary as legally justified\nunder the Free Exercise Clause of the First Amendment.14 Although there are\ncases recognizing that some government regulations must yield if contrary to\nthe sincere religious convictions of a citizen,15 we do not believe that the\n12 A lthough a co m p lete search of all s ta te law s enacted since 1789 is im practical, w e have review ed human\nrights treatises, general and specialized encyclopedias, and historical reference works w ithout uncovering\nany reference to an A m erican law dealing with church sanctuary. C hurches have often opposed particular\ngovernm ent p o licies by preaching civil disobedience, but not, as far as we can determ ine, by claiming a\ngenera] exem ption from the legal process. There was no claim , for exam ple, that either the U nderground\nR ailroad o r the sit-ins o f the modern C iv il Rights m ovem ent were legal \xe2\x80\x94 only that the particular laws\ninvolved w ere im m oral and should, therefore, be changed.\n13 T he issue fo r countries w ith modem governm ents, such as the U nited States, has instead becom e w hether\nto grant asylum to aliens (in derogation o f a sister state\xe2\x80\x99s law s), leaving behind the more prim itive question\no f w hether to perm it derogation of o n e 's ow n crim inal law s by perm itting churches to act as sanctuaries \xe2\x80\x94\nand thus, as alternate sources o f temporal power.\n14 N .Y . T im es, Apr. 8, 1983, at A16, col. 5 (reporting the view o f Thom as C annon o f the M arquette\nU niversity School o f Law that offering sanctuary could be legally ju stifie d under the First Amendment and\nas an o b serv an ce o f an ancient custom w ith roots in the Judeo-C hristian tradition).\n15 See, e.g., Wisconsin v. Yoder, 406 U .S . 205 (1972); Sherbert v. Vemer, 374 U.S. 398 (1963).\n\n170\n\n\x0canalysis in those cases will protect people harboring illegal aliens. First,\ndisagreement with the government\xe2\x80\x99s treatment of illegal aliens is not a reli\xc2\xad\ngious belief that is burdened by enforcement of the immigration laws. Sherbert\nv. Vemer, 374 U.S. 398, 403-06 (1963). Church members are not compelled\nby our deportation of aliens to forego a religious practice, such as resting on the\nSabbath. Even if granting sanctuary were viewed as a legitimate religious\npractice authorized by modem canon law, which all the evidence suggests it is\nnot, the federal government has a compelling countervailing interest in insur\xc2\xad\ning that the law is enforced throughout our country.16 The integrity of our\ngovernment would be seriously threatened if individuals could escape the\ncriminal law by pleading religious necessity.\nIII. Suggestions for Statement\nIt has been suggested that the Department might wish to issue a formal\nstatement on the growing use of churches as places of sanctuary for illegal\naliens. If it is decided to do so, we recommend that the statement indicate that\nthere is a statutory right to file for asylum in this country. 8 U.S.C. \xc2\xa7 1158. INS\ndoes not deport aliens during the pendency of an application. The statement\nmight reiterate our determination to adjudicate all asylum claims fairly, and\nurge that those with bona fide claims file them promptly.\nThe plight of illegal aliens in this country obviously generates strong emo\xc2\xad\ntions, especially when aliens are seeking escape from a strife-filled nation and\nargue that the government from which they are seeking sanctuary is the source\nof at least some of the violence. In any prosecution the courts are likely to be\npresented with defendants whose cases are sympathetic and whose advocates\nwill be drawn from persons who assert a moral basis for their views. As in the\ncase of enforcing any law affecting large numbers of people who may have\nacted pursuant to strong and principled convictions, sensitivity in the process,\nwith adequate notice to all involved and manifest concern for matters of\nconscience, will be an important ingredient in convincing the courts to uphold\nenforcement.\nT heodore\n\nB.\n\nO lso n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n16 U nlike the beliefs protected in Yoder, which were recognized by the Suprem e Court as having been\npracticed consistently for centuries, church sanctuary has been a nullity for over three hundred years The\ncomments o f various church leaders, see supra note 1, indicate that while the bishops may sym pathize with\ntheir pastors' intentions, they also recognize that harboring the aliens is illegal and not im m unized by an\ninvocation o f church sanctuary.\n\n171\n\n\x0c"