b'Term of a Member of the Mississippi River Commission\nT he term o f a m em ber o f the M ississippi River C om m ission is set by the statute governing his office,\nand the term dictated by the statute applies even though the language used in his nom ination,\nconfirm ation, and com m ission calls for a different term.\n\nMay 27, 1999\nM e m o r a n d u m O p in io n f o r t h e E x e c u t iv e C l e r k\n\nYou have asked for our opinion whether the term of a member of the Mis\xc2\xad\nsissippi River Commission is set by the language of his nomination, confirmation,\nand commission, even though the statute governing his office calls for a different\nterm. We conclude that the term dictated by the statute applies.\nThe Mississippi River Commission consists of seven members, appointed by\nthe President with the advice and consent of the Senate. 33 U.S.C. \xc2\xa7\xc2\xa7641-642\n(1994). Three of the members are from the Engineer Corps of the Army, one\nfrom the National Ocean Survey, and three from \xe2\x80\x9c civil life.\xe2\x80\x9d Id. \xc2\xa7642. Each\ncommissioner from civil life \xe2\x80\x9c shall be appointed for a term of nine years.\xe2\x80\x9d Id.\nOrdinarily, when a statute provides for an appointee to serve a term of years,\nthe specified time of service begins with the appointment. Case o f Chief Con\xc2\xad\nstructor Easby, 16 Op. Att\xe2\x80\x99y Gen. 656 (1880). A different rule generally applies\nto commissions whose members have staggered terms. There, to preserve the stag\xc2\xad\ngering required by statute, each member may serve only until the passage of the\nspecified number of years calculated from the expiration of his predecessor\xe2\x80\x99s term,\neven if the member\xe2\x80\x99s confirmation and appointment take place after that prior\nterm has expired. Memorandum for Tim Saunders, Acting Executive Clerk, Execu\xc2\xad\ntive Clerk\xe2\x80\x99s Office, from Dawn Johnsen, Deputy Assistant Attorney General,\nOffice of Legal Counsel, Re: When the Statutory Term o f a General Trustee o f\nthe John F. Kennedy Center for the Performing Arts Begins (Sept. 14, 1994);\nMemorandum for Nelson Lund, Associate Counsel to the President, from John\nO. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re:\nStarting Date fo r Terms o f Members of the United States Sentencing Commission\n\n(May 10, 1990).\nBecause the Mississippi River Commission\xe2\x80\x99s members do not serve staggered\nterms, its members\xe2\x80\x99 terms, as we understand the practice, have previously been\ncalculated from appointment, rather than from the expiration of the predecessors\xe2\x80\x99\nterms. In the case that prompts your question, however, this rule was not followed\nin the nomination, confirmation, and commission of the member. The prede\xc2\xad\ncessor\xe2\x80\x99s term expired October 21, 1996. See 133 Cong. Rec. 28,444 (1987) (Senate\nconfirmation). The President\xe2\x80\x99s nomination of the successor was \xe2\x80\x9c for a term\nexpiring October 21, 2005,\xe2\x80\x9d 144 Cong. Rec. S10,943 (daily ed. Sept. 24, 1998) \xe2\x80\x94\nnine years after the previous term expired \xe2\x80\x94 rather than for a term of nine years\n123\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nto begin upon appointment. Cf. 133 Cong. Rec. 1929 (1987) (predecessor\xe2\x80\x99s\nnomination was \xe2\x80\x9c for a term of 9 years\xe2\x80\x9d ). The Senate likewise gave its advice\nand consent to the nomination incorporating the wrong term. 144 Cong. Rec.\nS12,963 (daily ed. Oct. 21, 1998). We understand that, in accordance with the\nnomination and confirmation, the commission also specified a term expiring\nOctober 21, 2005.\nThe language of a nomination, confirmation, and commission cannot alter a\nstatutory term. The opinion of Solicitor General Phillips in Case of Chief Con\xc2\xad\nstructor Easby, which Attorney General Devens approved, stands for this prin\xc2\xad\nciple. Easby had received a recess appointment as Chief of the Bureau of\nConstruction and Repair in the Navy Department. The wording of his later\nnomination, confirmation, and commission for the office, which had a statutory\nfour-year term, rested on a calculation running from the date of the recess appoint\xc2\xad\nment, rather than the appointment with the Senate\xe2\x80\x99s advice and consent.1 Solicitor\nGeneral Phillips concluded that \xe2\x80\x9c [t]he law of the term of the office, of course,\ncontrols special language in the nomination and confirmation,\xe2\x80\x9d and because \xe2\x80\x9c [t]he\nterm during which Mr. Easby served under the temporary appointment was, by\nlaw, a different term from that which commenced\xe2\x80\x9d upon his appointment with\nthe Senate\xe2\x80\x99s advice and consent, \xe2\x80\x9c his term of office begins at the date of his\nappointment by and with the consent of the Senate, and not at the date of his\nprevious temporary appointment by the President, notwithstanding the special\nwording of his nomination to the Senate, and of his commission.\xe2\x80\x9d 16 Op. Att\xe2\x80\x99y\nGen. at 656, 657.\nThis principle squares with a pronouncement of the Supreme Court (although\nit may only have been dictum), Quackenbush v. United States, 177 U.S. 20, 27\n(1900) (\xe2\x80\x9c the terms of the commission cannot change the effect of the appointment\nas defined by the statute\xe2\x80\x9d ), and has been followed by our Office, Impact of\nPanama Canal Zone Treaty on the Filling o f the Vacancy in the Office of the\nDistrict Judge fo r the United States District Court fo r the District of the Canal\nZone, 1 Op. O.L.C. 236, 237 n.4 (1977); Memorandum for John W. Dean III,\n\nCounsel to the President, from Leon Ulman, Deputy Assistant Attorney General,\nOffice of Legal Counsel, Re: Presidential Commissions at 5 (Dec. 1, 1971).2\nConsequently, the term in this case ends nine years after the appointment, rather\nthan on October 21, 2005. The \xe2\x80\x9c special language in the nomination and confirma\xc2\xad\ntion,\xe2\x80\x9d as well as the language of a commission that \xe2\x80\x9c conform[s] to the . . .\n1 The recess appointment took place on A pril 30, 1877 For reasons that are unclear, the nomination, confirmation,\nand com m ission were all \xe2\x80\x9c from Apnl 28, 1877.\xe2\x80\x9d 16 Op A tt\xe2\x80\x99y Gen at 656 Also, the entire period from the beginning\no f the recess appointment had been subtracted from Easby\xe2\x80\x99s four-year term, even though the recess appointment\nexpired before Easby was confirmed and appointed Id. at 656\n2A ttom ey General C um m ings\xe2\x80\x99 opinion Term o f Office o f Major General Patterson as Surgeon General \xe2\x80\x94 Recess\nAppointm ent, 37 Op. A tt\xe2\x80\x99y Gen. 282, 287 (1933), did not reach a contrary conclusion about the principle, but held\nthat, in view o f long practice under a specific statute, the four-year term in that case included prior service under\na recess appointment\n\n124\n\n\x0cTerm o f a Member o f the Mississippi River Commission\n\nwording of that nomination and confirmation,\xe2\x80\x9d cannot detract from the statutory\nspecification of the term. 16 Op. Att\xe2\x80\x99y Gen. at 656, 657.\nDANIEL KOFFSKY\nActing Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n125\n\n\x0c'


b'Proposed Presidential Proclamation Entitled\n\xe2\x80\x9cRegistration Under the Military Selective Service Act\xe2\x80\x9d\n[T h e fo llo w in g m em o ran d u m w as p re p a re d by the O ffice o f L egal C ounsel p u rsu an t to its\nresponsibility u n d e r E x e c u tiv e O r d e r N o. 11,030 for a p p ro v in g all ex ecu tiv e o rd e rs an d\np residential p ro clam atio n s for form and legality. O n th e co n stitu tio n al issue raised by\nth e p ro p o sed p ro clam atio n , it notes th e con clu sio n rea c h e d in an ea rlie r opinion o f the\nO ffice th at a m ale-only d ra ft is co n stitu tio n al. O n th e sta tu to ry q u estion, it co n clu d es\nth at th e P resid en t is a u th o riz e d u n d er th e S electiv e S erv ice A c t to re q u ire th e re g istra \xc2\xad\ntion, b y age g ro u p , o f som e b ut n o t all m ales b etw een th e ages o f 18 and 26.]\n\nJune 30, 1980\nMEMORANDUM\nThe attached proposed proclamation was submitted informally to the\nOffice of Management and Budget by the Selective Service System. It\nwas revised in the Office of Management and Budget and has been\nforwarded for consideration of this Department as to form and legality\nby that Office with the approval of the Director. Suggestions made by\nthis Office were incorporated during the drafting process.\nThe proposed proclamation would invoke the President\xe2\x80\x99s power\nunder \xc2\xa7 3 of the Military Selective Service Act, as amended [the Act],\n50 U.S.C. App. \xc2\xa7 453, to require male citizens of the United States and\nother male persons residing in the United States between the ages of 18\nand 26 and not exempt under the Act to register with the Selective\nService System. It would end the hiatus in registration caused by\nPresident Ford\xe2\x80\x99s Proclamation No. 4360 of March 29, 1975 (\xe2\x80\x9cTerminat\xc2\xad\ning Registration Procedures Under the Military Selective Service Act,\nas Amended\xe2\x80\x9d).\nThe proclamation would require the registration of all nonexempt\nmales who were born on or after January 1, 1960 and have reached the\nage of 18. No other persons would be required to register. This desig\xc2\xad\nnation of the persons required to register raises constitutional and statu\xc2\xad\ntory issues.\nThe constitutional question is whether requiring men but not women\nto register constitutes impermissible discrimination based on sex. This\nOffice has previously addressed that issue and has concluded that a\nmale-only registration is constitutional. Memorandum from Assistant\nAttorney General Harmon to Deputy Director White, Office of Man\xc2\xad\n705\n\n\x0cagement and Budget, \xe2\x80\x9cConstitutionality of All-Male Draft Registra\xc2\xad\ntion,\xe2\x80\x9d January 31, 1980.*\nThe statutory question involves the President\xe2\x80\x99s power to require the\nregistration, by age group, of some but not all males between the ages\nof 18 and 26. An argument can be made that the President\xe2\x80\x99s power is\nlimited to requiring the registration of the entire group; that he may\nnot, as the proclamation would, limit registration to 18, 19, and 20 year\nolds.\nSection 3 of the Act provides in pertinent part that\nit shall be the duty of every male . . . who, on the day or\ndays fixed for the first or any subsequent registration, is\nbetween the ages of 18 and 26, to present himself for and\nsubmit to registration at such time or times and place or\nplaces, and in such manner, as shall be determined by\nproclamation of the President and by rules and regulations\nprescribed hereunder.\n50 U.S.C. App. \xc2\xa7 453 (emphasis added). This language, on its face, can\nbe read as evincing a congressional intent that all persons within the\nage group delineated be registered. Moreover the phrase \xe2\x80\x9cat such time\nor times and place or places, and in such manner, as shall be deter\xc2\xad\nmined by proclamation of the President\xe2\x80\x9d does not, in terms, give the\nPresident discretion to exclude groups in the 18-to-26 range from the\nduty imposed on every male in that range.\nThe legislative history of \xc2\xa7 3 reveals that\nThe Senate bill provided for the registration of male per\xc2\xad\nsons between the ages of 18 and 26, and contained no\nspecific provision authorizing registration by age groups.\nThe House amendment provided for the registration of\nmale persons between the ages of 18 and 31, and specific\ncally authorized the President to provide for registration\nby age groups.\nH. Conf. Rep. No. 2438, 80th Cong., 2d Sess. 44 (1948). The conference\nadopted the Senate version, the version devoid of specific authority for\nthe President to provide for registration by age groups. Id. This was in\ncontradistinction to the course that Congress had taken in the predeces\xc2\xad\nsor to \xc2\xa7 3, the model for the House version. The predecessor contained\nthe specific authority, in the exact language omitted from \xc2\xa7 3 in 1948.\nCompare \xc2\xa7 2 of the Selective Training and Service Act of 1940, 54 Stat.\n885, with \xc2\xa7 3 of H.R. 6401, 80th Cong., 2d Sess. (1948), at 94 Cong.\nRec. 8395 (1948).1\n\xe2\x80\xa2 N o t e : In Rostker v. Goldberg, 453 U.S. 57 (1981), the Suprem e C ourt upheld the constitutionality\no f m ale-only draft registration. Ed.\n1 A lth o u g h the Selective Training and Service A ct o f 1940 contained the specific authority for\nregistration by age groups, a contem poraneous in terpretation by the A ttorney G eneral concluded that\n\n706\n\n\x0cIn light of the language of \xc2\xa7 3 and its legislative history, this Office\norally advised the Office of Management and Budget earlier this year\nthat it would be highly desirable to have some congressional action\nconfirming his authority before the President issued a proclamation\ncalling for the registration of persons by age groups consisting of less\nthan the entire 18-to-26 range. Since we provided that advice, Con\xc2\xad\ngress, at the request of the President, and fully informed of the Presi\xc2\xad\ndent\xe2\x80\x99s plan to register, by age group, less than the entire range has,\nafter lengthy and considered debate, appropriated for this registration\nfunds sufficient only to register the number of males in the age groups\nnamed in the proclamation. We believe that this congressional action is\nsufficient to confirm the President\xe2\x80\x99s authority.\nThe proclamation would require persons born in 1960 to register\nduring a six day period beginning July 21, 1980. Those born in 1961\nwould register between July 28, 1980 and August 2, 1980, and those\nborn in 1962 between January 5, 1981 and January 10, 1981. The\nproclamation would also establish a continuous registration process,\nobligating persons to register as they turn 18, upon losing an exempt\nstatus, and, with respect to noncitizens, either as they return to resi\xc2\xad\ndence in the United States from abroad or as they enter to reside.\nAliens in processing centers on the days fixed for their registration\nwould be required to register after their release. A range of days to\nregister would be provided those subject to the continuous registration\nprogram. Provision would be made for the late registration of those\nunable to register at the proper time due to some condition beyond\ntheir control, such as hospitalization or incarceration.\nRegistration in the United States would be at any United States Post\nOffice. Registration overseas\xe2\x80\x94available to citizens only\xe2\x80\x94would be\nbefore a consular officer of the United States or other designated\nthe President was nonetheless required to register, w ithin a reasonable time, al) persons w ithin the 21to-36 range set in that A ct by Congress. R egarding the first registration proclam ation under the 1940\nact, the A ttorney G eneral w rote the President:\nIt will be noted that on page 3 o f the draft, in paragraph num bered 2, the higher age\nlimit o f those to be registered on the sixteenth day o f O cto b er is left blank. This was\ndone out o f deference to the w ishes o f the W ar D epartm ent w ho I understand will\nurge that such age limit for the first draft be the thirty-first anniversary o f the day of\nbirth.\nT he language o f the act is ambiguous and I am not prepared to say that you may not\nrequire registration o f persons o f different age groups on different registration days.\nT h e statute as a w hole, how ever, definitely contem plates that all persons betw een the\nages o f tw enty-one and thirty-six shall be registered, and under the constitutional\nrequirem ent that the President shall take care that the laws are faithfully executed, it is,\nin my opinion, your duty to see that this is done w ithin a reasonable time. If, therefore,\nthe age limit inserted in the blank above indicated is o th er than "thirty-sixth" you\nshould, w ithin a reasonable time, set an o th er registration date or other registration\ndates for the purpose o f the registration o f all persons falling w ithin the age limits\nprescribed in the statute. W hat is a reasonable time for such purposes depends, of\ncourse, upon the exigencies under existing conditions.\nL etter to the President from the A ttorney G eneral, o f Septem ber 16, 1940. (T he decision made was to\nregister the entire group. See Proclam ation No. 2425 o f Septem ber 16, 1940 (\xe2\x80\x9c R egistration D a y \xe2\x80\x9d ), 3\nC .F .R . at 185 (1938-43 C om p.).)\n\n707\n\n\x0cperson at any United States Embassy or Consulate. Hours for registra\xc2\xad\ntion in the United States would be the business hours of the Post\nOffices. Hours for registration overseas would be set by the Depart\xc2\xad\nment of State. In utilizing the Post Office and the Department of State\nto assist the Selective Service in registering persons, the President\nwould be exercising his authority under \xc2\xa7 10(b)(5) of the Act, 50 U.S.C.\nApp. \xc2\xa7 460(b)(5), \xe2\x80\x9cto utilize the services of any or all departments and\nany and all officers or agents of the United States . . . in the execution\nof this title [\xc2\xa7\xc2\xa7 451 through 471a, 50 U.S.C. App.].\xe2\x80\x9d\nThe proclamation would direct persons required to register to\ncomply with the registration procedures and other rules and regulations\nprescribed by the Director of Selective Service, to identify themselves\nwhen reporting for registration, and to keep the Selective Service\nSystem informed of their current addresses after registration. It would\nurge everyone to cooperate with and to assist those required to register.\nExecutive agencies would be required, upon request of the Director, to\nassist, to the extent permitted by law, the Selective Service System in\ncarrying out the purposes of the proclamation.\nThis Office has been informed by the Office of the Counsel to the\nPresident that that Office intends to have a reference to the congres\xc2\xad\nsional resolution making the funds for this registration available inserted\nin the proclamation\xe2\x80\x99s preamble. No such reference is contained in the\nproposed proclamation as transmitted to this Department by the Office\nof Management and Budget. Its inclusion will not affect the legality of\nthe proclamation.\nThe proposed proclamation is acceptable as to form and legality.\nJ ohn M. H arm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n708\n\n\x0c'


b"Applicability of Executive Privilege to the\nRecommendations of Independent Agencies Regarding\nPresidential Approval or Veto of Legislation\nIn m aking recom m endations to the [\xe2\x80\x99resident to approve or disapprove legislation, an indepen\xc2\xad\ndent agency functions as part of th e President\xe2\x80\x99s core o f executive advisers.\nW hen independent agencies render advice to the President concerning his approval or disap\xc2\xad\nproval o f legislation, they are acting in an executive capacity, and such advice can be\nprotected under the doctrine of executive privilege.\n\nDecember 22, 1986\nM\n\nem orandum\n\nO\n\np i n io n f o r t h e\n\nO f f ic e\n\nof\n\nA\n\ns s is t a n t\n\nL e g is l a t iv e A\n\nA ttorney G eneral,\n\nf f a ir s\n\nAs part of the internal executive branch process for presenting to the Presi\xc2\xad\ndent recommendations for approval or disapproval of legislation, the Office of\nManagement and Budget often solicits the views of the \xe2\x80\x9cindependent agencies\xe2\x80\x9d\nwith respect to legislation of particular concern to them. Their recommenda\xc2\xad\ntions and comments are consolidated by OMB and communicated to the\nPresident along with those of the other concerned agencies and departments.\nBecause existing precedent separates the \xe2\x80\x9cindependent agencies\xe2\x80\x9d somewhat\nfrom the President\xe2\x80\x99s direct supervision and control, see, e.g., Humphrey\xe2\x80\x99s\nExecutor v. United States, 295 U.S. 602 (1935), the question has arisen as to\nwhether recommendations and comments made by an independent agency in\nthis context, i.e., as advice to the President on his approval or disapproval of\nlegislation, may be protected from disclosure to Congress by the doctrine of\nexecutive privilege.\nA preliminary question, which does not depend on the status of an agency as\n\xe2\x80\x9cindependent,\xe2\x80\x9d is whether Congress has authority to inquire into approval or\nveto recommendations made to the President. The Supreme Court has ac\xc2\xad\nknowledged that the investigative power of Congress, while broad, is not\nunlimited. There must be a subject matter for the inquiry, the investigation\nmust be authorized by Congress, there must be a valid legislative purpose, the\nwitness must be accorded certain constitutional protections, and the informa\xc2\xad\ntion demanded must be pertinent to the inquiry. See Gojack v. United States,\n384 U.S. 702, 704-05, 714 (1966); Wilkinson v. United States, 365 U.S. 399,\n408-09 (1961); Barenblatt v. United States, 360 U.S. 109, 111, 117 (1959);\n176\n\n\x0cWatkins v. United States, 354 U.S. 178, 187 (1957); United States v. Rumely,\n345 U.S. 41, 44-46 (1953); McGrain v. Daugherty, 273 U.S. 135, 173, 176\n(1927); K ilboum v. Thompson, 103 U.S. 168, 190 (1881). The information\nsought by Congress must be \xe2\x80\x9cdemonstrably critical to the responsible fulfill\xc2\xad\nment of the Committee\xe2\x80\x99s functions.\xe2\x80\x9d Senate Select Committee on Presidential\nCampaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc).\nCongress may of course appropriately request the views of the Executive\nBranch on pending legislation, as part of its inquiry into the wisdom of and\nneed for the legislation. However, once that legislation has been passed by\nCongress, the President alone must determine whether it should be approved.\nThe President\xe2\x80\x99s authority to approve or disapprove legislation is absolute,\nunqualified (except insofar as Congress may override a veto through the\nlegislative process), and unreviewable. Because the veto power is one vested\nexclusively in the President by the Constitution, it is therefore difficult to see\nhow Congress has any legitimate legislative interest in reviewing the exercise\nof that power.1\nEven if Congress can claim a legitimate legislative interest in recommenda\xc2\xad\ntions made to the President with respect to the approval or disapproval of\nlegislation, it is clear, at least with respect to \xe2\x80\x9cnonindependent\xe2\x80\x9d Executive\nBranch agencies, that the doctrine of executive privilege may be invoked to\nprevent disclosure of those recommendations. In United States v. Nixon, 418\nU.S. 683 (1974), the Supreme Court established in unequivocal terms that the\nprivilege is of constitutional stature. The Court rested this ruling, first, on the\nneed for protection of communications between high government officials and\nthose who assist and advise them, and, second, on the constitutional separation\nof powers between the three branches:\n\nHuman experience teaches that those who expect public dis\xc2\xad\nsemination of their remarks may well temper candor with con\xc2\xad\ncern for appearances and for their own interests to the detriment\nof the decisionmaking process. Whatever the nature of the privi\xc2\xad\nlege of confidentiality of Presidential communications in the\nexercise of Article II powers, the privilege can be said to derive\nfrom the supremacy of each branch within its own assigned area\n1 In a sim ilar context \xe2\x80\x94 that o f rem oval o f executive branch officers \xe2\x80\x94 the Executive Branch has\nconsistently refused to com ply with congressional requests to explore the reasons for dism issal, because\nunder A rticle II the pow er to rem ove Executive Branch officers is exclusively the President\xe2\x80\x99s. For exam ple,\nPresident Andrew Jackson declined to give the Senate the reasons for dism issal o f an executive officer,\nexplaining that \xe2\x80\x9cthe President in cases o f this nature possesses the exclusive pow er o f rem oval from office,\nand, under the sanction o f his official oath and o f his liability to impeachm ent, he is bound to exercise it\nw henever the public welfare shall require.\xe2\x80\x9d 3 J. Richardson, Messages and Papers o f the President 133\n(G ov\xe2\x80\x99t Pnnting O ffice ed. 1896). President C leveland sim ilarly rejected \xe2\x80\x9cthe right of the Senate to sit in\njudgm ent upon the exercise o f m y exclusive discretion and Executive function.\xe2\x80\x9d 8 J. Richardson, Messages\nand Papers o f the President at 381. In the more recent past, G eneral O m ar B radley refused in 1951 to testify\nbefore Senate com m ittees concerning his discussions with President Trum an regarding the firing of G eneral\nM acArthur. G eneral B rad ley 's refusal was upheld by the Senate Com m ittees on Armed Services and Foreign\nRelations Military Situation in the Far East: Hearings before the Sen. Comm, on Armed Services and Sen.\nComm, on Foreign Relations, 82d Cong., 1st Sess., Part 2, 8 32-72 (1951).\n\n177\n\n\x0cof constitutional duties. Certain powers and privileges flow\nfrom the nature of enumerated powers; the protection of the\nconfidentiality of Presidential communications has similar con\xc2\xad\nstitutional underpinnings.\nId. at 705-06. In determining whether to approve or disapprove legislation, the\n\nPresident needs the benefit of full and frank discussions within the Executive\nBranch of the merits of the legislation. Recommendations made to the Presi\xc2\xad\ndent are therefore quintessentially deliberative type materials that can be\nprotected under the doctrine o f executive privilege.2\nThe rationale that justifies withholding this type of material under the\ndoctrine of executive privilege is equally applicable to the \xe2\x80\x9cindependent agen\xc2\xad\ncies.\xe2\x80\x9d In making recommendations to the President to approve or disapprove\nlegislation, an independent agency is functioning as part of the President\xe2\x80\x99s core\nof executive advisers, just as the other departments and agencies. The role\nplayed by the various agencies in the process is virtually indistinguishable,\nregardless of whether the agency is termed \xe2\x80\x9cindependent\xe2\x80\x9d or not. It would be\ninconsistent with the underlying principle of executive privilege \xe2\x80\x94 the need to\npreserve the integrity of the President\xe2\x80\x99s decisionmaking process \xe2\x80\x94 to conclude\nthat recommendations made by a Cabinet agency may be protected, whereas\nrecommendations on the same bill, made as part of the same inter-agency\nprocess, cannot be protected.\nThis functional analysis is consistent with the Supreme Court\xe2\x80\x99s view in\nH um phrey\xe2\x80\x99s Executor of the relationship between the President and the inde\xc2\xad\npendent agencies. Even assuming, arguendo, the continuing validity of\nH um phrey\xe2\x80\x99s Executor ,3 it clearly does not divorce entirely the \xe2\x80\x9cindependent\nagencies\xe2\x80\x9d from the executive branch. Under Humphrey\xe2\x80\x99s Executor, the Presi\xc2\xad\ndent may be limited, in certain questions of removal, from asserting direct\nsupervision and control over the \xe2\x80\x9cquasi- legislative\xe2\x80\x9d or \xe2\x80\x9cquasi-judicial\xe2\x80\x9d func\xc2\xad\ntions of the agencies. Nothing in the decision suggests, however, that when an\nagency functions in a clearly executive capacity \xe2\x80\x94 such as rendering advice to\nthe President \xe2\x80\x94 it is likewise insulated from direct Presidential supervision. A\nmore detailed discussion of this question can be found in a 1957 opinion of this\nOffice. Memorandum for the Attorney General from W. Wilson White, Assis\xc2\xad\ntant Attorney General, Office of Legal Counsel (Nov. 5, 1957). That opinion\nconcludes, based on an analysis of Humphrey\xe2\x80\x99s Executor, that, \xe2\x80\x9c[i]n many\nrespects [the] functions and operations [of the independent agencies] are sub\xc2\xad\nject to executive control,\xe2\x80\x9d and \xe2\x80\x9c[i]n such cases the doctrine of executive\nprivilege should apply to the independent regulatory commissions to the same\nextent that it applies to the executive departments and officers of the federal\ngovernment.\xe2\x80\x9d A current example of application of this functional analysis is the\n2 In o rd e r eo protect the confidentiality o f those recom m endations, the privilege w ould extend as well to\ndrafts and inter- o r intra-agency deliberative com m unications preparatory to making the final recom m enda\xc2\xad\ntion. See generally NLRB v. Sears, Roebuck &. Co., 421 U.S. 132, 150 (1975); Coastal States Gas Corp. v.\nDep t o f Energy, 617 F.2d 854, 866 (D .C. Cir. 1980).\n3 See generally Bows her v. Synar, 478 U .S. 714, 761 n.3 (1986).\n\n178\n\n\x0cExecutive Order on classification and declassification of sensitive national\nsecurity information. Executive Order No. 12356, 47 Fed. Reg. 14874 (1982).\nThis order, which is based on the President\xe2\x80\x99s supervisory authority over the\ndisclosure, of information that may harm the national security \xe2\x80\x94 a longrecognized branch of executive privilege \xe2\x80\x94 applies equally to \xe2\x80\x9cindependent\nagencies\xe2\x80\x9d and the other executive agencies.\nD o u g l a s W . K m ie c\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n179\n\n\x0c\x0c\x0c\x0c"


b'D ecem ber 22, 1977\n\n77-73\n\nMEMORANDUM OPINION FOR THE\nCOUNSEL TO THE PRESIDENT\nStatus of the Acting Director, Office of Management\nand Budget\n\nThis responds to your request for our opinion concerning the legality\nof Mr. A\xe2\x80\x99s continuing to serve as Acting Director of the Office o f\nManagement and Budget (OMB).\nOur views may be summarized as follows: The provisions of the\n\xe2\x80\x9cVacancy A ct,\xe2\x80\x9d including the 30-day limit on the tenure o f persons\nserving in an acting capacity, do not apply to OMB. Under 31 U.S.C.\n\xc2\xa7 16 (Supp. V 1975), when there is a vacancy in the office o f Director\no f OMB, the Deputy Director becomes Acting Director. While there is\nno express statutory limit on the length of such tenure as Acting\nDirector, it may not continue indefinitely. Within a reasonable time\nafter the occurrence of a vacancy in the office of Director, the Presi\xc2\xad\ndent should submit a nomination to the Senate. The circumstances here\nare such that the duration of Mr. A \xe2\x80\x99s service as Acting Director seems\nreasonable.\nDiscussion\n1.\nProvisions derived from the Vacancy A ct of 1868 are codified in 5\nU.S.C. \xc2\xa7\xc2\xa7 3345-49. Section 3345 provides that, unless the President\ndirects otherwise, when the head of an executive department or mili\xc2\xad\ntary department resigns, his first assistant shall perform the duties of the\noffice until a successor is appointed. Under 5 U.S.C. 3348, however, a\nperson filling a vacancy by virtue of \xc2\xa7 3345 may not do so for more\nthan 30 days.\nEven assuming for the sake of argument that the Vacancy A ct was\nintended to cover all agencies in the executive branch, that would not\nbe determinative. Although derived from the 1868 Act, the current\nprovisions, 5 U.S.C. \xc2\xa7\xc2\xa7 3345-49, stand on a separate footing because\nthey, along with the other provisions of Title 5, were enacted into\n287\n\n\x0cpositive law in 1966.1 The applicable definition of \xe2\x80\x9cExecutive depart\xc2\xad\nm ent\xe2\x80\x9d is set forth in 5 U.S.C. \xc2\xa7 101; that definition is restricted to the\nCabinet departments and does not include OMB.2\nIt follows that 5 U.S.C. \xc2\xa7 3348, which imposes a 30-day limit on the\ntime that a \xe2\x80\x9cfirst assistant\xe2\x80\x9d m ay on the basis of \xc2\xa7 3345 act as department\nhead, does not apply to OMB.\n2. Article II, \xc2\xa7 2, Cl. 2 of the Constitution provides that the President\nis to nominate and, with the advice and consent of the Senate, appoint\nambassadors, Supreme Court Justices \xe2\x80\x9cand all other officers of the\nUnited States, whose appointments are not herein otherwise provided\nfor. . . .\xe2\x80\x9d This clause also provides that \xe2\x80\x9cthe Congress may by law\nvest the appointment of such inferior officers . . . in the President\nalone, in the courts of law, o r in the heads of departments.\xe2\x80\x9d\nF or more than 50 years, the President had sole responsibility for\nappointing the Director of OM B or its predecessor Agency, the Bureau\nof the Budget. See \xc2\xa7 207 o f the Budget and Accounting Act, 1921, 31\nU.S.C. \xc2\xa7 16 (1970). Then, in 1974, the requirement of Senate confirma\xc2\xad\ntion of the D irector and D eputy D irector of OMB was enacted. See\nPub. L. No. 93-250, \xc2\xa71, 88 Stat. 11, 31 U.S.C. \xc2\xa716 (Supp. V 1975).\nO ur examination of the legislative history of the 1974 statute, as well\nas that of similar legislation passed by Congress in 1975 but vetoed by\nPresident Nixon,3 reveals no discussion of the question of the length of\ntime that a Deputy Director o f OMB may serve as Acting D irector.4 In\nfact, the provision regarding the filling of a vacancy by the Deputy\nD irector was not added by the 1974 statute. T hat provision dates back\nto the 1921 Budget and Accounting A ct, as amended by Reorganization\nPlan No. 2 of 1970.5 As noted previously, under the 1921 Act, the\npositions of D irector and D eputy D irector were not subject to Senate\nconfirmation.\n3. In Williams v. Phillips, 360 F. Supp. 1363 (D.D.C., 1973), the\ndistrict court held invalid President Nixon\xe2\x80\x99s naming of an Acting Di\xc2\xad\nrector o f the Office of Economic Opportunity.8 The court\xe2\x80\x99s reasoning\nsupports our view that, by virtue of 31 U.S.C. \xc2\xa7 16 (Supp. V 1975), a\nDeputy D irector of OMB m ay act as Director for a (reasonable) period\n1See Pub. L. No. 89-554, 80 Stat. 378, et seq.\n1 Regarding the applicability o f the definition contained in 5 U.S.C. \xc2\xa7 101, see the\nexplanatory note following 5 U.S.C. \xc2\xa7 3345.\n3 See, e.g., S. Rep. 93-7, 93d Cong., 1st Sess. (1973); 119 Cong. Rec. 3348 (1973); H.R.\nRep. No. 93-109, 93d Cong., 1st Sess. (1973).\nT he bill passed in 1973 would have required Senate confirmation o f the incumbent\nD irector and D eputy Director as well as persons named to those positions in the\nfuture. The Senate voted to override the veto, 119 Cong. Rec. 16503 (1973), but the\nHouse failed to do so, 119 C ong. Rec. 16764 (1973).\n4 See, e.g\xe2\x80\x9e S. Rep. No. 93-237, 93d Cong., 1st Sess. (1973); H.R. Rep. No. 93-697\n(1973); 120 Cong. Rec. 2781 (1974).\n\xe2\x80\x9c T he reorganization plan replaced the Bureau o f the Budget with OMB.\n6 T he court of appeals denied the G overnment\xe2\x80\x99s motion for a stay pending appeal.\nWilliams v. Phillips, 482 F. 2d 669 (D.C. Cir. 1973). Later, the case became moot and, on\nJanuary 21, 1974, the appeal was dismissed.\n\n288\n\n\x0cin excess of 30 days. The court referred to similar statutes applicable to\nother agencies (e.g., the Veterans Administration) and stressed the fact\nthat, with regard to OEO, there was no statute providing for an Acting\nDirector. 360 F. Supp. at 1370-71. The court\xe2\x80\x99s conclusion was as\nfollows:\n\xe2\x80\x9cThus the failure of the Congress to provide legislation for an\nacting director must be regarded as intentional. The Court holds\nthat in the absence of such legislation or legislation vesting a\ntemporary power of appointment in the President, the constitution\xc2\xad\nal process of nomination and confirmation must be followed.\nTherefore, the Court finds that the defendant Phillips was not\nappointed lawfully to his post as Acting Director of OEO. An\ninjunction will issue to restrain him from taking any actions as\nActing Director of OEO.\xe2\x80\x9d 360 F. Supp. 1371 [footnote omitted].\nThe clear implication is that, had there been an OMB-type statute and\nhad Phillips been the Deputy Director of OEO, the court would have\nreached a different result.\nMoreover, in United States v. Halmo, 386 F. Supp. 593 (D. Wis.,\n1974), a criminal prosecution, Solicitor General Bork had become the\nActing Attorney General pursuant to 28 U.S.C. \xc2\xa7 508(b) by reason o f a\nvacancy in the offices of Attorney General and Deputy Attorney G en\xc2\xad\neral. The defendants contended that because of the 30-day limitation in\nthe Vacancy Act, Mr. Bork\xe2\x80\x99s order authorizing an application for a\nwiretap order was invalid. The court rejected the contention, stating:\n\xe2\x80\x9cThere is no time limitation imposed on those who acquire office\nthrough \xc2\xa7 508(b), 386 F. Supp. at 595.\xe2\x80\x9d\n4.\n31 U.S.C. \xc2\xa7 16 (Supp. V 1975) provides that, in the event of a\nvacancy in the office of Director of OMB, the Deputy Director shall\nact as Director. There is no Phillips-type problem of avoidance of\nSenate confirmation.7 Since 1974, the Deputy Director of OMB, as well\nas the Director, is appointed with the advice and consent of the Senate.\nIt seems reasonable to assume that, when the Senate considers a nomi\xc2\xad\nnee for the position of Deputy Director, it does so with the realization\nthat he may possibly become Acting Director.\nOn the other hand, Congress has created tw o positions, Director and\nDeputy Director, and has required that each be filled by a person\nwhose nomination is confirmed by the Senate.8 In our view, it is\nimplicit in 31 U.S.C. \xc2\xa7 16 (Supp. V 1975), that a Deputy Director may\nnot properly serve indefinitely as Acting Director. There is no specific\nlimit, 30 days or otherwise, but the tenure of an Acting Director should\n7 Congress was aware of the decision in Williams v. Phillips. The plaintiffs were\nSenators. The decision was brought to the attention of the House, 119 Cong. Rec. 19316\n(1973) (Congressman Rangel), and was inserted into the Congressional Record by Senator\nWilliams, 119 Cong. Rec. 19595 (1973).\n\xe2\x80\xa2 We do not deal with the question of the current status o f the position of Deputy\nDirector of OMB. See \xc2\xa7 102(0 of Reorganization Plan No. 2 of 1970.\n\n289\n\n\x0cnot continue beyond a reasonable time. W hat period is reasonable\ndepends upon the particular circumstances.\nPertinent considerations include the specific functions being per\xc2\xad\nformed by the Acting Director; the manner in which the vacancy was\ncreated (death, long-planned resignation, etc.); the time when the va\xc2\xad\ncancy was created (e . g w hether near the beginning or the end of a\nsession of the Senate); \xe2\x80\xa2 w hether the President has sent a nomination to\nthe Senate; and particular factors affecting the President\xe2\x80\x99s choice (e . g a\ndesire to appraise the w ork of an Acting Director) or the President\xe2\x80\x99s\nability to devote attention to the matter.\n5.\nMr. A has served as A cting D irector for 3 months. In our opinion,\ngiven the circumstances, that period is reasonable. Significant in this\nregard are Mr. A \xe2\x80\x99s involvement in the budget process and the deadlines\nimposed by the Congressional Budget A ct of 1974, see 31 U.S.C. \xc2\xa7 1321\n(Supp. V 1975).\nIn addition it is noteworthy that the Senate adjourned on December\n15 and will not reconvene until January 19. A recess appointment could\nbe made but, in view of the salary restrictions of 5 U.S.C. 5503, it\nwould clearly be reasonable for the President to wait until the Senate\nreconvenes.\nIn conclusion, we believe Mr. A \xe2\x80\x99s tenure as Acting Director of OMB\nis lawful. Regarding the tim e to make a nomination, the President has\ndiscretion, but is required to do so within a reasonable period.\nJohn\n\nM.\n\nH arm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n* Regarding recess appointments, see Art. II, \xc2\xa7 2, Cl. 3 o f the Constitution and 5 U.S.C.\n\xc2\xa7 5503, the latter dealing with the payment of salaries of persons receiving such appoint\xc2\xad\nments. In the circumstances present here a recess appointee could not under 5 U.S.C.\n\xc2\xa7 5503 be paid.\n\n290\n\n\x0c'


b'Implementation of International Civil\nAviation Agreements\nIf a valid reciprocal arrangement has been entered into between the United States and a foreign\ncountry, the Civil Aeronautics Authority is authorized under existing law to grant to a foreign\naircraft a permit to fly across the United States without landing or a permit to land for non-traffic\npurposes.\n\nFebruary 6, 1945\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL*\nThe State Department has requested the informal advice of the Attorney General on a question that has arisen in connection with the International Air Services\nTransit Agreement, commonly called the \xe2\x80\x9cTwo Freedoms Agreement,\xe2\x80\x9d and the\nInternational Air Transport Agreement, frequently referred to as the \xe2\x80\x9cFive\nFreedoms Agreement,\xe2\x80\x9d drawn up at the International Civil Aviation Conference\nheld in Chicago in the fall of 1944. These agreements grant to the signatory\npowers certain privileges with respect to \xe2\x80\x9cscheduled international air services.\xe2\x80\x9d It\nis in connection with these privileges that the following question has risen:\nAssuming that reciprocal rights have been granted by some valid arrangement\nbetween the United States and a foreign country, is the Civil Aeronautics Authority authorized under existing law to grant to aircraft of the foreign country a license\nor certificate (1) to fly across United States territory without landing; and (2) to\nland in the United States for non-traffic purposes (e.g., refueling)?\nThe State Department has not asked this Department to examine the details of\nthese agreements, or to comment on the Convention on Civil Aviation or the\nInterim Agreement on Civil Aviation drawn up at Chicago. The State Department\nhas not asked us to consider whether the agreements require ratification by the\nSenate or may be executed as executive agreements. The only question that has\nbeen put to us relates to the construction of the statutes regulating civil aviation\nand we shall confine the discussion in this memorandum to that point. The\nquestion of statutory construction, however, does have a bearing on the question\nwhether the agreements may properly be executed as executive agreements for the\nfollowing reason: If the agreements required or contemplated action by the Civil\nAeronautics Authority or any other agency of the government that was unauthor*\nEditor\xe2\x80\x99s Note: The cover memorandum attached to this memorandum opinion states that \xe2\x80\x9cMr.\nAcheson [presumably Dean Acheson, then Assistant Secretary of State, later Secretary of State under\nPresident Truman] is very eager to get our views on this; he has called me twice in the past week. It\nmay be that you will wish to submit a copy of my memorandum to Mr. Acheson for his comments\nbefore you decide whether you agree with the conclusion reached in the memorandum.\xe2\x80\x9d The cover\nmemorandum states further: \xe2\x80\x9cThe State Department has not asked us for a formal opinion, and you will\nrecall that in his conference with us Mr. Acheson said he was not sure that the State Department would\nmake this request.\xe2\x80\x9d\n\n106\n\n\x0cImplementation of International Civil Aviation Agreements\n\nized or forbidden by domestic law, a serious question might arise as to whether the\nagreements could be consummated as executive agreements. If it is concluded that\nthe Civil Aeronautics Authority is authorized by existing law to grant to foreign\naircraft a license or certificate to fly across United States territory without landing\nor to land in the United States for non-traffic purposes, the problem of the\nagreements contemplating action not authorized by existing law does not arise.\nI. Statutes Involved\nSection 6 of the Air Commerce Act of 1926, Pub. L. No. 69-254, 44 Stat. 568,\n572, as amended by the Civil Aeronautics Act of 1938, Pub. L. No. 75-706, 52\nStat. 973,1 provides in part as follows:\n(a) The United States of America is hereby declared to possess and\nexercise complete and exclusive national sovereignty in the air space\nabove the United States . . . .\n(b) Foreign aircraft not a part of the armed forces of the foreign nation shall be navigated in the United States only if authorized as\nhereinafter in this section provided.\n(c) If a foreign nation grants a similar privilege in respect of aircraft\nof the United States, and/or airmen serving in connection therewith,\nthe Civil Aeronautics Board may authorize aircraft registered under\nthe law of the foreign nation and not a part of the armed forces\nthereof to be navigated in the United States. No foreign aircraft shall\nengage in air commerce otherwise than between any State, Territory,\n1\nSection 1107(i) of the Civil Aeronautics Act of 1938 amended section 6 of the Air Commerce Act\nof 1926. Among other things, section 1107(i) struck out the last part of section 6(a) and added the last\nsentence of section 6(c) as quoted in the text. In its original form, section 6(c) contained the following\nlanguage limiting the authority to permit foreign aircraft to be navigated in the United States: \xe2\x80\x9cbut no\nforeign aircraft shall engage in interstate or intrastate air commerce.\xe2\x80\x9d Pub. L. No. 69-254, 44 Stat. at\n572.\nThe Air Commerce Act of 1926 contains the following definitions:\n\nThat as used in this Act, the term \xe2\x80\x9cair commerce\xe2\x80\x9d means transportation in whole or in\npart by aircraft of persons or property for hire, navigation of aircraft in furtherance of\na business, or navigation of aircraft from one place to another for operation in the\nconduct of a business. As used in this Act, the term \xe2\x80\x9cinterstate or foreign air commerce\xe2\x80\x9d means air commerce between any State, Territory, or possession, or the District of Columbia, and any place outside thereof; or between points within the same\nState, Territory, or possession, or the District of Columbia, but through the airspace\nover any place outside thereof; or wholly within the airspace over any Territory or\npossession or the District of Columbia.\nPub. L. No. 69-254, \xc2\xa7 1, 44 Stat. at 568, codified at 49 U.S.C. \xc2\xa7 171 (1940).\nAs defined in the 1926 statute, the term \xe2\x80\x9cUnited States\xe2\x80\x9d includes the overlying airspace. Id. \xc2\xa7 9(b),\n44 Stat. at 573, codified at 49 U.S.C. \xc2\xa7 179(b) (1940).\n\n107\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nor possession of the United States (including the Philippine Islands)\nor the District of Columbia, and a foreign country.\n49 U.S.C. \xc2\xa7 176 (1940).2\nSection 1 of the Civil Aeronautics Act of 1938 contains the following definitions:\n(3) \xe2\x80\x9cAir commerce\xe2\x80\x9d means interstate, overseas, or foreign air commerce or the transportation of mail by aircraft or any operation or\nnavigation of aircraft within the limits of any civil airway or any operation or navigation of aircraft which directly affects, or which may\nendanger safety in, interstate, overseas, or foreign air commerce.\n....\n(16) \xe2\x80\x9cCivil airway\xe2\x80\x9d means a path through the navigable air space of\nthe United States, identified by an area on the surface of the earth,\ndesignated or approved by the Administrator as suitable for interstate, overseas, or foreign air commerce.\n....\n(25) \xe2\x80\x9cNavigation of aircraft\xe2\x80\x9d or \xe2\x80\x9cnavigate aircraft\xe2\x80\x9d includes the piloting of aircraft.\n....\n(31) \xe2\x80\x9cUnited States\xe2\x80\x9d means the several States, the District of Columbia, and the several Territories and possessions of the United States,\nincluding the Territorial waters and the overlying air space thereof.\nPub. L. No. 75-706, 52 Stat. at 977\xe2\x80\x9380, codified at 49 U.S.C. \xc2\xa7 401 (1940).\n\n2\nThe authority conferred by this section was originally vested in the Secretary of Commerce.\nPub. L. No. 69-254, \xc2\xa7 6(c), 44 Stat. at 572. As amended by the Civil Aeronautics Act of 1938,\n\xc2\xa7 1107(i)(1), 52 Stat. at 1028, subsection (c) referred to the Civil Aeronautics Authority. Section 7(b)\nof Reorganization Plan 4 changed the title of the Civil Aeronautics Authority to \xe2\x80\x9cCivil Aeronautics\nBoard\xe2\x80\x9d and made other changes not relevant here. 5 Fed. Reg. 2421, 2422 (June 29, 1940). The term\n\xe2\x80\x9cCivil Aeronautics Authority\xe2\x80\x9d is now used to refer to the Civil Aeronautics Board and the Administrator of Civil Aeronautics considered together. In this memorandum we shall use the title \xe2\x80\x9cCivil\nAeronautics Authority\xe2\x80\x9d without discussing whether the authority given by section 6(c) of the Air\nCommerce Act may be exercised by the Civil Aeronautics Board or by the Administrator or by both.\nSee Permits for Flight of Foreign Aircraft into the United States, 40 Op. Att\xe2\x80\x99y Gen. 136 (Sept. 12,\n1941).\n\n108\n\n\x0cImplementation of International Civil Aviation Agreements\n\nII. Text\nIn section 6 of the Air Commerce Act, the Congress asserted sovereignty over\nthe airspace above the territory of the United States and reserved to American\naircraft all rights of \xe2\x80\x9ccabotage\xe2\x80\x9d (e.g, air traffic between points within a single state,\nbetween two states or between the United States and any of its possessions or\nterritories). The section, however, authorizes the Civil Aeronautics Authority to\ngrant certain flight privileges to foreign aircraft. The only question discussed in\nthis memorandum is whether foreign aircraft may be authorized to make non-stop\nflights over the United States or to land for non-traffic purposes in the United\nStates. In neither case would the foreign aircraft be authorized to pick up passengers or freight at any point in the United States, its territories or possessions\ndestined for any other point in the United States, its territories or possessions.\nThe first sentence of section 6(c) authorizes the Civil Aeronautics Authority to\npermit foreign aircraft \xe2\x80\x9cto be navigated in the United States.\xe2\x80\x9d In its ordinary\nmeaning and as defined in the act, \xe2\x80\x9cnavigation\xe2\x80\x9d includes any flight by aircraft\nwhether or not a landing is made; both non-stop flight and transit flight with the\nprivilege of landing for non-commercial purposes necessarily involve the navigation of aircraft in the airspace over the United States. Therefore, if the first\nsentence of section 6(c) stood alone, it would authorize the Civil Aeronautics\nAuthority to grant a permit for the type of flight discussed in this memorandum. It\nis necessary, however, to consider the limitation placed on this sentence by the\nsecond sentence of section 6(c).\nThat sentence provides that foreign aircraft may not engage in \xe2\x80\x9cair commerce\notherwise than between any State, Territory or possession of the United States\n(including the Philippine Islands) or the District of Columbia, and a foreign\ncountry.\xe2\x80\x9d For the purpose of deciding how this sentence should be interpreted we\nshall first consider the meaning of the term \xe2\x80\x9cair commerce\xe2\x80\x9d and then discuss the\nrequirement that air commerce must be between a state, territory or possession of\nthe United States, or the District of Columbia, and a foreign country.\nAs defined in section 1(3) of the Civil Aeronautics Act, the term \xe2\x80\x9cair commerce\xe2\x80\x9d includes any navigation of aircraft within the limits of a civil airway or any\nnavigation of aircraft which may endanger the safety of operations in air commerce. Under this definition any flight by aircraft into the airspace of the United\nStates would appear to be \xe2\x80\x9cair commerce.\xe2\x80\x9d Both non-stop flights and transit flights\nwith non-traffic landing privileges are, therefore, \xe2\x80\x9cair commerce\xe2\x80\x9d within this\ndefinition.3\n\n3\nIf section 6(c) is examined in the light of the definition of \xe2\x80\x9cair commerce\xe2\x80\x9d contained in the 1926\nstatute, it is none the less clear that under section 6(c) the Civil Aeronautics Authority may authorize\nnon-stop flight by foreign aircraft as part of a scheduled international air service. As defined in the\n1926 statute, \xe2\x80\x9cair commerce\xe2\x80\x9d includes the navigation of aircraft in the furtherance of a business. 49\n\n109\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nIf a foreign aircraft en route from one foreign point to another stops at some\npoint in the United States or one of its possessions for a non-traffic purpose, it\nseems clear that the aircraft is engaged in air commerce between a \xe2\x80\x9cState,\nTerritory or possession of the United States (including the Philippine Islands) or\nthe District of Columbia, and a foreign country\xe2\x80\x9d within the meaning of the statute.\nThere remains for consideration the question whether a non-stop flight by a\nforeign aircraft over American territory en route from a point in one foreign\ncountry to another foreign point also falls within the statutory language. When an\naircraft enters the airspace over any part of the United States, including its\nterritories and possessions, it has entered the United States as much as if it had\nlanded within the territorial boundaries, since the United States has sovereignty\nover the overlying airspace. Cf. United States v. One Pitcairn Bi-Plane, 11 F.\nSupp. 24 (W.D.N.Y. 1935). For the purpose of subsection (c) it does not appear to\nmake any difference whether the foreign aircraft returns by the same route it\nentered the United States. The section refers to \xe2\x80\x9cany\xe2\x80\x9d foreign country and does not\nrequire the aircraft to leave the United States by the same route it followed when\nentering.\nSection 6(c) of the Air Commerce Act does not prohibit a foreign aircraft from\nentering the airspace over more than one state, territory or possession of the\nUnited States. The section refers to \xe2\x80\x9cany\xe2\x80\x9d state, territory, or possession and does\nnot limit the application of the section to states which are on the boundary of the\nUnited States. In addition, subsection (c) refers to the District of Columbia. It\nwould not be possible for a foreign aircraft to fly into the airspace over the District\nof Columbia without crossing the airspace of some other state. It is obvious,\ntherefore, that the statute does not contemplate that the foreign aircraft is prohibited from entering any state other than a border state.\nThis construction of section 6(c) is reinforced by a consideration of the purposes of the Civil Aeronautics Act of 1938. Section 3 of that Act declares that the\npurpose of the statute is to promote the development of air transportation. If the\nstatute were construed to prohibit the Civil Aeronautics Authority from granting a\ncertificate to foreign aircraft for non-stop flight as part of a scheduled international\nair service, even though the foreign government was willing to grant reciprocal\nprivileges, the foreign government would undoubtedly refuse such privileges to\nAmerican air lines. As a result, the development of international air transport\nservices by American carriers would be hampered rather than encouraged.\nIII. Administrative Construction\nAdministrative practice under both the Air Commerce Act of 1926 and the\nCivil Aeronautics Act of 1938 supports the construction of section 6(c) outlined in\nU.S.C. \xc2\xa7 171. Non-stop flights or transit flights with the privileges of non-traffic landing carried on as a\npart of a regularly scheduled air service appear to be included within this definition of air commerce.\n\n110\n\n\x0cImplementation of International Civil Aviation Agreements\n\nthis memorandum. Under the 1926 statute, a number of bilateral agreements\nrelating to air navigation were entered into between the United States and other\ncountries granting, among other things, reciprocal privileges of non-stop flight,\nsubject to various limitations not relevant here and to the rules and regulations of\neach country. See Air Navigation Agreement, U.S.-It., Oct. 31, 1931, E.A.S.\nNo. 24; Air Navigation Agreement, U.S.-Swe., Oct. 9, 1933, E.A.S. No. 47; Air\nNavigation Agreement, U.S.-Nor., Nov. 15, 1933, E.A.S. No. 50; Air Navigation\nAgreement, U.S.-S. Afr., Sept. 20, 1933, E.A.S. No. 54; Air Navigation Agreement, U.S.-Den., Apr. 16, 1934, E.A.S. No. 58; Air Navigation Agreement, U.S.Gr. Brit., May 5, 1935, E.A.S. No. 76; Air Navigation Agreement, U.S.-Ir., Dec. 4,\n1937, E.A.S. No. 110.\nSince 1938 bilateral agreements conferring similar privileges have been entered\ninto. See Air Navigation Agreement, U.S.-Can., Aug. 1, 1938, E.A.S. No. 129; Air\nTransport Services Agreement, U.S.-Can., Aug. 18, 1939, E.A.S. No. 159; Air\nNavigation Agreement, U.S.-Fr., Aug. 15, 1939, E.A.S. No. 152; Air Navigation\nAgreement, U.S.-Liber., June 15, 1939, E.A.S. No. 166.\nSince April 7, 1939 the Trans-Canada Air Lines has been operating under a\npermit granted by the Civil Aeronautics Authority authorizing non-stop flights by\nCanadian aircraft over the State of Maine en route between Toronto, Canada and\nHalifax, Nova Scotia. The Civil Aeronautics Authority has also issued a permit to\nthe Canadian Colonial Airways, Inc., authorizing flights between Montreal,\nCanada, and Nassau in the Bahamas with a stopover for non-traffic purposes in\nJacksonville, Florida.\nIV. Legislative History\nThe legislative history does not offer positive assurance with respect to the\nconstruction of section 6(c) of the Air Commerce Act. Non-stop flights by foreign\naircraft and transit flights with the privilege of landing for non-traffic purposes\nwere not the subject of debate in Congress at the time of the passage of the Civil\nAeronautics Act of 1938. However, the agreements executed under the Air\nCommerce Act were not criticized or repudiated by the Congress. The legislative\nhistory indicates in this respect that the Congress intended to make no substantial\nchange in section 6(c) of that Act.\nV. Conclusion\nIt is my view that the Department of State may be advised informally that if a\nvalid reciprocal arrangement has been entered into between the United States and\na foreign country, the Civil Aeronautics Authority is authorized under existing law\nto grant to a foreign aircraft a permit to fly across the territory of the United States\nwithout landing or a permit to land for non-traffic purposes in the United States,\nsubject to compliance with the laws and regulations of the United States.\n\n111\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nIt is unnecessary to discuss in this memorandum whether a non-stop flight with\nor without the privilege of landing for technical reasons is the kind of air transportation for which a permit must be granted under section 401 or 402 of the Civil\nAeronautics Act of 1938. Cf. Canadian Colonial Airways, Inc.\xe2\x80\x94Investigation,\n2 C.A.B. 752, Docket No. 601 (July 7, 1941). It is also unnecessary to discuss\nconditions that should be attached by the Civil Aeronautics Authority to any\ncertificate issued to foreign aircraft.\nI am attaching a memorandum prepared by Mr. Eberly discussing these questions in greater detail.\nHUGH B. COX\nAssistant Solicitor General\n\n112\n\n\x0cImplementation of International Civil Aviation Agreements\nJanuary 29, 1945\n\nMEMORANDUM FOR THE ASSISTANT SOLICITOR GENERAL\nThis memorandum is in response to your request for my views on the questions\npresented in the memorandum from the Department of State for the Attorney\nGeneral, dated January 8, 1945.\nI.\nAt the International Civil Aviation Conference held at Chicago, there were\ndrawn up on December 7, 1944, the following multilateral agreements:\n(1) a Convention on International Civil Aviation;\n(2) an Interim Agreement on International Civil Aviation;\n(3) an International Air Services Transit Agreement; and\n(4) an International Air Transport Agreement.\nMembers of the Civil Aeronautics Board attended the conference as delegates\nof the United States. It is understood that they have approved the agreements.\nThe Convention is to be submitted to the Senate for ratification. The Interim\nAgreement provides for the establishment of a provisional organization for\ncollaboration in the field of international civil aviation. It is to last only until the\nConvention comes into operation, or at most for a period of three years.\nWe are concerned only with the third and the fourth of these four agreements,\nthe International Air Services Transit Agreement and the International Air\nTransport Agreement. These agreements deal with \xe2\x80\x9cscheduled international air\nservices.\xe2\x80\x9d\nThe International Air Services Transit Agreement, commonly referred to as the\nTwo Freedoms Agreement, provides in pertinent part:\nARTICLE I\nSection 1\nEach contracting State grants to the other contracting States the following freedoms of the air in respect of scheduled international air\nservices:\n(1) The privilege to fly across its territory without landing;\n(2) The privilege to land for non-traffic purposes. . . .\n\n113\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nSection 4\nEach contracting State may, subject to the provisions of this Agreement,\n(1) Designate the route to be followed within its territory by any international air service and the airports which any such service may\nuse . . . .\nSection 5\nEach contracting State reserves the right to withhold or revoke a certificate or permit to an air transport enterprise of another State in any\ncase where it is not satisfied that substantial ownership and effective\ncontrol are vested in nationals of a contracting State, or in case of\nfailure of such air transport enterprise to comply with the laws of the\nState over which it operates, or to perform its obligations under this\nAgreement.\nThe second agreement, document 4 above mentioned, is the International Air\nTransport Agreement, commonly referred to as the Five Freedoms Agreement. It\ncontains the same provisions as those quoted above from the International Air\nServices Transit Agreement (article I, sections 1, 5 and 6) and, in addition, three\nother privileges, hence giving rise to the name Five Freedoms Agreement.\nEach of these two agreements comes into force as between contracting States\nupon its acceptance by each of them. Each agreement may be denounced by any\nparty thereto on one year\xe2\x80\x99s notice.\nThe Two Freedoms Agreement and the Five Freedoms Agreement contain\nprovisions making the exercise of privileges granted in the respective agreements\nto the contracting States subject to certain provisions of the Interim Agreement\nand, when it comes into force, subject to certain provisions of the Convention.\nIn view of the uncertainty as to the scope of the questions raised in the State\nDepartment memorandum, Mr. Barnard and I attended a meeting with representatives of the State Department on January 22, 1945. It is my understanding that\nwith respect to the present inquiry this department is not concerned with any\nquestion arising out of the relation of the provisions of the Two Freedoms\nAgreement and of the Five Freedoms Agreement to the provisions of the Interim\nAgreement and the Convention; or with any question of national defense or\nsecurity; or with the fact that the two agreements are multilateral international\nagreements, and not bilateral agreements; or with any question as to whether the\nTwo Freedoms Agreement and the Five Freedoms Agreement may be executed by\nthe President as executive agreements without the necessity of submitting the\nagreements, or either of them, to the Senate for its advice and consent as to\nratification.\n\n114\n\n\x0cImplementation of International Civil Aviation Agreements\n\nThe only question on which the Department of State desires the informal opinion of the Attorney General is the question whether the two privileges granted by\nthe Two Freedoms Agreement and the Five Freedoms Agreement with respect to\nforeign scheduled air services, (1) to fly across the territory of the United States\nwithout landing, and (2) to land in the United States for non-traffic purposes, are\nauthorized by, or conform with, existing law of the United States. This question\nwill be considered on the basis that the agreements conferring these privileges are\nbilateral agreements.\nII.\nBoth the Paris Convention of 1919 (Convention for the Regulation of Aerial\nNavigation, Oct. 13, 1919, 11 L.N.T.S. 173) and the Havana Convention of 1928\n(Pan American Convention on Commercial Aviation, U.S.-Cuba, Feb. 20, 1928,\n47 Stat. 1901) adopted the doctrine of complete and exclusive sovereignty over the\nair space above the territory of a state, but contained provisions extending certain\nreciprocal privileges to foreign aircraft within the territories of member states.\nThis principle of exclusive sovereignty over the air space, but with authorization for innocent passage of civil foreign aircraft under certain conditions, is\nwritten into the statutes of the United States to which reference will shortly be\nmade.\nThe Paris Convention was signed by the United States, but it was not ratified.\nS. Doc. No. 67-348, at 3768 (1923). Ratification of the Havana Convention was\nadvised by the Senate on February 20, 1931. 74 Cong. Rec. 5514. The Convention\nwas ratified by the President on March 6, 1931, and proclaimed by the President\non July 27, 1931. 47 Stat. 1901.\nIncidentally, it may be noted that Article XV of the Paris Convention provides\nthat every aircraft of a contracting State has the right to cross the air space of\nanother State without landing, subject to following a designated route. S. Doc.\nNo. 67-348, at 3775.\nThe Paris Convention and the Havana Convention have been interpreted to\ndeny freedom of air navigation to the operators of air lines, except by special\nagreement. As a result, international services have been established pursuant to\ninternational bilateral agreements and, in some cases, by unilateral concession.\nThe United States is a party to a number of bilateral agreements under which each\nparty grants certain privileges to the civil aircraft of the other party.\nAir navigation in the United States is regulated by the provisions of the Civil\nAeronautics Act of 1938, and the Air Commerce Act of 1926 as amended by the\nCivil Aeronautics Act of 1938. I shall discuss first the Air Commerce Act of 1926\nas originally enacted, and, secondly, the Civil Aeronautics Act of 1938.\nSection 6 of the Air Commerce Act of 1926, as originally enacted, provides:\n\n115\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\n(a) The Congress hereby declares that the Government of the United\nStates has, to the exclusion of all foreign nations, complete sovereignty of the airspace over the lands and waters of the United States,\nincluding the Canal Zone. Aircraft a part of the armed forces of any\nforeign nation shall not be navigated in the United States, including\nthe Canal Zone, except in accordance with an authorization granted\nby the Secretary of State.\n(b) Foreign aircraft not a part of the armed forces of the foreign nation shall be navigated in the United States only if authorized as\nhereinafter in this section provided; and if so authorized, such aircraft and airmen serving in connection therewith, shall be subject to\nthe requirements of section 3, unless exempt under subdivision (c) of\nthis section.\n(c) If a foreign nation grants a similar privilege in respect of aircraft\nof the United States, and/or airmen serving in connection therewith,\nthe Secretary of Commerce may authorize aircraft registered under\nthe law of the foreign nation and not a part of the armed forces\nthereof to be navigated in the United States, and may by regulation\nexempt such aircraft, and/or airmen serving in connection therewith,\nfrom the requirements of section 3, other than the air traffic rules;\nbut no foreign aircraft shall engage in interstate or intrastate commerce.\nPub. L. No. 69-254, \xc2\xa7 6, 44 Stat. 568, 572 (emphasis supplied).\nThe parts underscored in the above quotation were repealed or amended by the\nCivil Aeronautics Act of 1938, Pub. L. No. 75-706, 52 Stat. 973.\nSection 9(b) of the Air Commerce Act of 1926 provides that the term \xe2\x80\x9cUnited\nStates,\xe2\x80\x9d when used in a geographical sense, means the territory comprising the\nseveral States, Territories, possessions, and the District of Columbia, and the\noverlying air space. 44 Stat. at 573.\nThe term \xe2\x80\x9cair commerce\xe2\x80\x9d is defined in section 1 of the statute as \xe2\x80\x9ctransportation in whole or in part by aircraft of persons or property for hire, navigation of\naircraft in furtherance of a business, or navigation of aircraft from one place to\nanother for operation in the conduct of a business.\xe2\x80\x9d 44 Stat. at 568.\nThe term \xe2\x80\x9cinterstate or foreign air commerce\xe2\x80\x9d is defined in section 1 of the\nstatute to mean \xe2\x80\x9cair commerce between any State, Territory, or possession, or the\nDistrict of Columbia, and any place outside thereof; or between points within the\nsame State, Territory, or possession, or the District of Columbia, but through the\nairspace of any place outside thereof; or wholly within the airspace over any\nTerritory or possession or the District of Columbia.\xe2\x80\x9d 44 Stat. at 568.\n\n116\n\n\x0cImplementation of International Civil Aviation Agreements\n\nIt will be seen that section 6 of the statute permits foreign civil aircraft, not a\npart of the armed forces of a foreign nation, to be \xe2\x80\x9cnavigated in the United States\xe2\x80\x9d\nunder certain conditions. The conditions are:\n(1) Reciprocal rights must first be granted by the foreign nation with\nrespect to aircraft of the United States.\nThe foreign aircraft or carrier\xe2\x80\x94\n(2) must receive authorization from the Secretary of Commerce to be\n\xe2\x80\x9cnavigate[d] in the United States\xe2\x80\x9d;\n(3) may be subject to regulation; and\n(4) may not engage in interstate or intrastate air commerce.\n44 Stat. at 572.\nSubject to the foregoing conditions, foreign civil aircraft may be \xe2\x80\x9cnavigated in\nthe United States.\xe2\x80\x9d This term is not defined in the statute. Also, it is to be noted\nthat the statute contains no express reference to non-stop flights or landing for\nnon-traffic purposes. It seems clear that so long as a foreign aircraft does not\nengage in interstate or intrastate air commerce, both non-stop flights and landing\nfor non-traffic purposes would fall within the terms \xe2\x80\x9cnavigated in the United\nStates\xe2\x80\x9d and \xe2\x80\x9cair commerce\xe2\x80\x9d as used in the Air Commerce Act of 1926.\nThe term \xe2\x80\x9cnavigation in the United States\xe2\x80\x9d as used in the statute includes any\nnavigation through the air space over the territory of the United States or any part\nthereof. Id. \xc2\xa7\xc2\xa7 2(e), 5(e); 44 Stat. at 569, 571. This term would, therefore, include\na non-stop flight across the territory of the United States and a stop or stops in the\nUnited States for non-traffic purposes.\nThe term \xe2\x80\x9cair commerce\xe2\x80\x9d is defined in the Act of 1926 to include \xe2\x80\x9ctransportation in whole or in part by aircraft of persons or property for hire\xe2\x80\x9d and \xe2\x80\x9cnavigation\nof aircraft in furtherance of a business.\xe2\x80\x9d Id. \xc2\xa7 1; 44 Stat. at 568. Navigation of a\nforeign aircraft on a non-stop flight across the United States or a part thereof\nwould seem to fall within both of these definitions.\nLikewise, the landing of a foreign aircraft in the United States for non-traffic\npurposes\xe2\x80\x94refueling, for example\xe2\x80\x94when done in connection with transportation\nby the aircraft of persons or property for hire, or in connection with navigation of\nthe aircraft in furtherance of a business, seems clearly to fall within the meaning of\nthe term \xe2\x80\x9cair commerce\xe2\x80\x9d as used in the statute.\nI find no apparent intent either in the language of the original Air Commerce\nAct of 1926 or its history to limit foreign aircraft to engaging in \xe2\x80\x9cforeign air\ncommerce\xe2\x80\x9d within any restricted definition of this term that would exclude nonstop flights. On the contrary, the foregoing analysis of the provisions of the statute\nshows that non-stop flights of foreign civil aircraft and landing of civil aircraft for\n\n117\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nnon-traffic purposes are within the terms of the authorization contained in the\nstatute as originally enacted.\nThere seems, however, to have been some doubt as to the construction of the\nAir Commerce Act of 1926. Thus, in March 1938, Mr. Hester, Assistant General\nCounsel, Treasury Department, later Administrator of Civil Aeronautics, gave the\nfollowing testimony before a subcommittee of the House Committee on Interstate\nand Foreign Commerce:\nWhile the authority of the Secretary of Commerce under that act [the\nAir Commerce Act of 1926] to permit the operation of foreign private aircraft in this country is clear, his authority to permit the operation of a foreign air carrier to this country is in doubt. Consequently,\na provision has been inserted in the present bill providing that no\nforeign air carrier shall operate to the United States unless it secures\nfrom the Authority a permit to do so. The issuance of such permits\nwould be subject to the approval of the President.\nHearings on H.R. 9738 Before the H. Comm. on Interstate and Foreign Commerce, 75th Cong., 3d Sess. at 41 (1938).\nThe Civil Aeronautics Act of 1938 created a Civil Aeronautics Authority and\nconferred certain powers and duties upon an Administrator. Pub. L. No. 75-706,\n\xc2\xa7 201, 52 Stat. at 980-81. The title, Civil Aeronautics Authority, was changed to\nCivil Aeronautics Board by the provisions of the President\xe2\x80\x99s Reorganization Plan\n4 of 1940, \xc2\xa7 7, 5 Fed. Reg. 2421, 2421\xe2\x80\x9322, and certain changes have been made in\nthe respective duties of the Board and the Administrator. See Permits for Flight of\nForeign Aircraft into the United States, 40 Op. Att\xe2\x80\x99y Gen. 136 (1941). For present\npurposes it is unnecessary to distinguish whether duties are vested in the Board or\nin the Administrator.\nFollowing are pertinent provisions of the Civil Aeronautics Act of 1938:\nSection 2 of the statute states that in the exercise and performance of its duties\nthe Authority shall consider the following as being in the public interest\xe2\x80\x94\n(a) The encouragement and development of an air-transportation system properly adapted to the present and future needs of the foreign\nand domestic commerce of the United States, of the Postal Service,\nand of the national defense; . . .\n(d) Competition to the extent necessary to assure the sound development of an air-transportation system properly adapted to the needs\nof the foreign and domestic commerce of the United States, of the\nPostal Service, and of the national defense; . . .\n(f) The encouragement and development of civil aeronautics.\n\n118\n\n\x0cImplementation of International Civil Aviation Agreements\n\n52 Stat. at 980.\nSection 201(b) of the statute provides that there shall be in the Authority an\nAdministrator, 52 Stat. at 981, and section 301 empowers and directs the Administrator \xe2\x80\x9cto encourage and foster the development of civil aeronautics and air\ncommerce in the United States, and abroad,\xe2\x80\x9d 52 Stat. at 985.\nSection 402 provides in part\xe2\x80\x94\n(a) No foreign air carrier shall engage in foreign air transportation\nunless there is in force a permit issued by the Authority authorizing\nsuch carrier so to engage; . . .\n(b) The Authority is empowered to issue such a permit if it finds that\nsuch carrier is fit, willing, and able properly to perform such air\ntransportation and to conform to the provisions of this Act and the\nrules, regulations, and requirements of the Authority hereunder, and\nthat such transportation will be in the public interest.\n52 Stat. at 991.\nThe Authority is authorized by paragraph (f) of section 402 to prescribe the\nduration of any permit and to attach to it such reasonable terms as, in its judgment,\n\xe2\x80\x9cthe public interest may require.\xe2\x80\x9d 52 Stat. at 992.\nParagraph (g) provides that any permit issued under section 402 may, after\nnotice and hearing, be altered, modified, amended, suspended, canceled, or\nrevoked by the Authority whenever it finds such action to be in the public interest.\n52 Stat. at 992.\nSection 801 provides that the issuance, denial, transfer, amendment, cancellation, suspension, or revocation of the terms of any foreign air carrier permit\nissuable under section 402 shall be subject to the approval of the President. 52\nStat. at 1014.\nSection 802 provides that the Secretary of State \xe2\x80\x9cshall advise the Authority of,\nand consult with the Authority, concerning the negotiation of any agreements with\nforeign governments for the establishment or development of air navigation,\nincluding air routes and services.\xe2\x80\x9d 52 Stat. at 1014.\nSection 1102 provides that in exercising and performing its powers under the\nAct, \xe2\x80\x9cthe Authority shall do so consistently with any obligation assumed by the\nUnited States in any treaty, convention, or agreement that may be in force between\nthe United States and any foreign countries.\xe2\x80\x9d 52 Stat. at 1026.\nThe statute gives recognition to \xe2\x80\x9cagreements\xe2\x80\x9d entered into by the United States\nwith foreign governments \xe2\x80\x9cfor the establishment or development of air navigation,\nincluding air routes and services.\xe2\x80\x9d\nIt will be noted that under the Civil Aeronautics Act of 1938 a foreign air carrier is required to obtain from the Civil Aeronautics Board a permit to engage in\nforeign air transportation. The issuance of any permit is subject to the approval of\n\n119\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nthe President. It is understood that if the Two Freedoms Agreement and the Five\nFreedoms Agreement are entered into by the United States, foreign air carriers\nwho wish to make non-stop flights or who want permission to land in the United\nStates for non-traffic purposes will be required to obtain permits from the Civil\nAeronautics Board in the same manner as other foreign air carriers who make\nstops in the United States for traffic purposes.\nThe Civil Aeronautics Act of 1938 (section 1107(i)(1) and (5)) amended section 6(c) of the Air Commerce Act of 1926 to read in part as follows:\nIf a foreign nation grants a similar privilege in respect of aircraft of\nthe United States, and/or airmen serving in connection therewith, the\nCivil Aeronautics Authority may authorize aircraft registered under\nthe law of the foreign nation and not a part of the armed forces\nthereof to be navigated in the United States. No foreign aircraft shall\nengage in air commerce otherwise than between any State, Territory,\nor possession of the United States (including the Philippine Islands)\nor the District of Columbia, and a foreign country.\n52 Stat. at 1028 (underscored portions added by the 1938 amendment).\nThe Civil Aeronautics Act of 1938 substituted for the provision in section 6(c)\nof the Air Commerce Act of 1926 that \xe2\x80\x9cno foreign aircraft shall engage in\ninterstate or intrastate air commerce\xe2\x80\x9d the requirement that \xe2\x80\x9cno foreign aircraft\nshall engage in air commerce otherwise than between any State, Territory, or\npossession of the United States (including the Philippine Islands) or the District of\nColumbia, and a foreign country.\xe2\x80\x9d\nThere is a question whether the Congress intended by this change in the provisions of the Air Commerce Act of 1926, and by the other provisions of the 1938\nstatute that I have mentioned, to prohibit foreign aircraft from making non-stop\nflights across the United States in connection with scheduled international air\nservices. I find no such intention either in the language of the statute or in its\nhistory. Reading the provisions of section 6(c) of the Air Commerce Act of 1926,\ntogether with the provisions of the Civil Aeronautics Act of 1938, it seems to me\nthat all that was intended was to prohibit foreign aircraft or foreign air carriers\nfrom engaging in interstate air commerce or intrastate air commerce.\nSection 1 of the Civil Aeronautics Act of 1938 contains the following definitions:\n(3) \xe2\x80\x9cAir Commerce\xe2\x80\x9d means interstate, overseas, or foreign air commerce or the transportation of mail by aircraft or any operation or\nnavigation of aircraft within the limits of any civil airway or any operation or navigation of aircraft which directly affects, or which may\nendanger safety in, interstate, overseas, or foreign air commerce.\n\n120\n\n\x0cImplementation of International Civil Aviation Agreements\n\n....\n(20) \xe2\x80\x9cInterstate air commerce,\xe2\x80\x9d \xe2\x80\x9coverseas air commerce\xe2\x80\x9d, and \xe2\x80\x9cforeign air commerce,\xe2\x80\x9d respectively, mean the carriage by aircraft of\npersons or property for compensation or hire, or the carriage of mail\nby aircraft, or the operation or navigation of aircraft in the conduct or\nfurtherance of a business or vocation, in commerce between, respectively\xe2\x80\x94\n(a) a place in any State of the United States, or the District of Columbia, and a place in any other State of the United States, or the\nDistrict of Columbia; or between places in the same State of the\nUnited States through the air space over any place outside thereof; or between places in the same Territory or possession (except\nthe Philippine Islands) of the United States, or the District of Columbia;\n(b) a place in any State of the United States, or the District of Columbia, and any place in a Territory or possession of the United\nStates; or between a place in a Territory or possession of the\nUnited States, and a place in any other Territory or possession of\nthe United States; and\n(c) a place in the United States and any place outside thereof,\nwhether such commerce moves wholly by aircraft or partly by\naircraft and partly by other forms of transportation.\nUnder section 6 of the Air Commerce Act of 1926, as amended, foreign aircraft\nmay be authorized \xe2\x80\x9cto be navigated in the United States.\xe2\x80\x9d It has been shown that\nthis term includes non-stop flights. Section 6 further provides that no foreign\naircraft shall engage in \xe2\x80\x9cair commerce\xe2\x80\x9d otherwise than between any State,\nTerritory or possession of the United States and a foreign country. The term \xe2\x80\x9cair\ncommerce\xe2\x80\x9d as used in section 6 before it was amended by the Civil Aeronautics\nAct of 1938 also includes non-stop flights.\nThe term \xe2\x80\x9cair commerce\xe2\x80\x9d in the last sentence of section 6(c) of the 1926 Act,\nafter the subsection was amended by the 1938 Act, is somewhat ambiguous for the\nreason that the definition of \xe2\x80\x9cair commerce\xe2\x80\x9d in the Act of 1938 differs from the\ndefinition of \xe2\x80\x9cair commerce\xe2\x80\x9d in the Act of 1926. The term \xe2\x80\x9cair commerce\xe2\x80\x9d as used\nin the 1938 Act includes any operation or navigation of aircraft which directly\naffects, or which may endanger safety in, interstate, overseas, or foreign air\ncommerce. This definition, therefore, as well as the definition of \xe2\x80\x9cair commerce\xe2\x80\x9d\nin the 1926 Act, seems to include non-stop flights.\nThe Civil Aeronautics Act of 1938 is derived from S. 3845, 75th Cong., 3d\nSess., and H.R. 9738, 75th Cong., 3d Sess.\n\n121\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nS. 3845, as reported to the Senate and agreed to by the Senate, provided in\nsection 1103:\n(b) . . . If a foreign country grants a similar privilege in respect of\naircraft of the United States the Authority may authorize such foreign aircraft registered under the laws of such country to enter and\nbe navigated within the United States. . . .\n(d) No foreign aircraft shall engage in interstate or overseas air\ncommerce, or in the transportation of persons or property for compensation or hire, or be operated or navigated in the conduct or furtherance of a business or vocation, in commerce wholly within a\nState.\n83 Cong. Rec. 6765 (1938).\nH.R. 9738, as reported to the House and agreed to by the House, contained the\namendment to section 6(c) of the Air Commerce Act of 1926, which was finally\nadopted in the 1938 Act, providing that no foreign aircraft shall engage in air\ncommerce otherwise than between any state and a foreign country. 83 Cong. Rec.\n7100, 7104 (1938).\nThe Senate bill repealed all of the provisions of the Air Commerce Act of 1926,\nand rewrote in the text of the bill such of the provisions that the Senate thought\nnecessary to preserve. The House bill, on the other hand, repealed most of the\n1926 Act, but preserved in existence and amended in certain respects other provisions of the 1926 Act. The conferees adopted the House amendment, dealing with\n\xe2\x80\x9cadmission of foreign aircraft into the United States,\xe2\x80\x9d without, however, indicating\nthat in their opinion there was any material difference between the Senate\nprovision and the House provision. Where there was any substantial or material\ndifference between a Senate provision and a House provision, the conference\nreport called attention to the difference. See H.R. Rep. No. 75-2635, at 80\xe2\x80\x9381\n(1938).\nIt thus appears that the provisions of the House bill and the Senate bill were\neach designed to prohibit foreign aircraft from engaging in interstate air commerce\nor overseas air commerce or air commerce wholly within a State. The amendment\nto the 1926 Act made by the 1938 Act authorizing foreign aircraft to engage in air\ncommerce between the United States and foreign countries discloses no purpose to\nprohibit foreign air carriers from engaging in air commerce to the extent of\nmaking non-stop flights across territory of the United States or of landing in the\nUnited States for non-traffic purposes.\nThe Civil Aeronautics Act of 1938 is intended to promote the development of\ncivil aeronautics and air commerce in the United States and abroad. The statute\nshould be construed consistently with this purpose and its provisions. In permitting\nforeign aircraft to engage in air commerce between the United States and a foreign\n\n122\n\n\x0cImplementation of International Civil Aviation Agreements\n\ncountry the Congress has disclosed no purpose to prohibit foreign aircraft from\nmaking commercial non-stop flights over the territory of the United States. Fairly\nconstrued, such non-stop flights of foreign aircraft fall within the provisions of the\nAir Commerce Act of 1926, as amended, and the provisions of the Civil Aeronautics Act of 1938.\nA construction that would prohibit foreign aircraft from engaging in commercial non-stop flights undoubtedly would preclude the Government of the United\nStates from obtaining similar privileges from foreign governments for American\nair carriers. Such a construction would hamper and restrict the development of\ncivil aeronautics and air commerce in the United States. It would be contrary to\nthe provisions and purpose of the Air Commerce Act of 1926, as amended, and the\nCivil Aeronautics Act of 1938.\nIII.\nThe administrative practice supports the construction that I have suggested.\nUnder the 1926 Act a number of bilateral agreements were entered into by the\nUnited States with foreign governments granting liberty of passage over our\nterritory in time of peace, and providing for the establishment and operation of\nregular air routes by air transport companies \xe2\x80\x9cacross the said territory, with or\nwithout intermediary landing, . . . subject to prior consent of the other party given\non the principle of reciprocity.\xe2\x80\x9d Air Navigation Agreement, U.S.-Swe., art. 4,\nOct. 9, 1933, E.A.S. No. 47, at 1-2; Air Navigation Agreement, U.S.-Nor., art. 4,\nNov. 15, 1933, E.A.S. No. 50, at 1; Air Navigation Agreement, U.S.-S. Afr., art. 4,\nSept. 20, 1933, E.A.S. No. 54, at 1-2; Air Navigation Agreement, U.S.-Den., art. 4,\nApr. 16, 1934, E.A.S. No. 58, at 2. See also Air Navigation Agreement, U.S.-It.,\nOct. 31, 1931, E.A.S. No. 24; Air Navigation Agreement, U.S.-Gr. Brit., May 5,\n1935, E.A.S. No. 76; Air Navigation Agreement, U.S.-Ir., Dec. 4, 1937, E.A.S.\nNo. 110.\nSince 1938 additional agreements have been entered into.\nAn agreement between the United States and Canada grants, subject to compliance with local laws and regulations, liberty of passage in time of peace above the\nterritories of each of the parties. It is further agreed \xe2\x80\x9cthat the establishment and\noperation by an enterprise of one of the Parties of a regular air route or services to,\nover, or away from the territory of the other Party, with or without a stop, shall be\nsubject to the consent of such other Party.\xe2\x80\x9d Air Navigation Agreement, U.S.-Can.,\nart. 3, Aug. 1, 1938, E.A.S. No. 129, at 1.\nIn a further exchange of notes, the Government of the United States and the\nGovernment of Canada agreed, subject to compliance with their laws and regulations,\nto grant to air carrier enterprises of the other Party permits for nonstop services through the air space over its territory between two\n\n123\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\npoints within the territory of the other Party; provided however that\ninland non-stop services between the United States and Alaska shall\nbe the subject of a separate understanding.\nAir Transport Services Agreement, U.S.-Can., art. 3, Aug. 18, 1939, E.A.S.\nNo. 159, at 1.\nOn July 15, 1939, the United States entered into an agreement with France by\nwhich each contracting party granted, subject to its laws and regulations, in time\nof peace, \xe2\x80\x9cliberty of passage above its territory\xe2\x80\x9d to the registered civil aircraft of\nthe other party, and agreed that the establishment and operation of a regular air\nroute or air transport service to, over or away from the territory of the other, with\nor without stop, should be subject to the consent of the other party. Air Navigation\nAgreement, U.S.-Fr., art. 4, Aug. 15, 1939, E.A.S. No. 152, at 2.\nOn June 14, 1939, the United States and Liberia entered into an agreement,\neffective June 15, 1939, providing that, subject to compliance with local laws and\nregulations, civil aircraft, not engaged in regular scheduled services, \xe2\x80\x9cshall be\naccorded liberty of passage above and of landing upon the territory of the other\nParty.\xe2\x80\x9d Air Navigation Agreement, U.S.-Liber., art. 1(b), June 15, 1939, E.A.S.\nNo. 166, at 3.\nIV.\nAccordingly, confining the advice in the manner that I have mentioned in this\nmemorandum, I believe that the Department of State can be advised informally\nthat the statutes permit the Government of the United States to enter into an\nagreement with the government of a foreign country granting on the principle of\nreciprocity, in respect of scheduled international air services, the privilege to fly\nacross the territory of the United States without landing, and the privilege to land\nin the United States for non-traffic purposes, subject to compliance with the laws\nand regulations of the United States.\nW.H. EBERLY\nAttorney-Adviser\nOffice of the Assistant Solicitor General\n\n124\n\n\x0c'