b'Presidential Authority Over Wilderness Areas Under the\nFederal Land Policy and Management Act of 1976\nU nder the Federal L and Policy and M anagem ent Act of 1976 (FLPM A), the President is required to\nforward to the Congress his recom m endations with respect to federal lands studied by the Bureau\no f Land M anagem ent for possible designation as w ilderness. He has no authority to refuse to m ake\nrecom m endations for areas he believes unsuitable for w ilderness designation, o r to return such\nlands to m ultiple use m anagem ent without congressional action upon his recom m endation. U nder\nthe FLPM A , as under the W ilderness A ct of 1964, only Congress has authority to determ ine\nw hether an area should or should not be designated as wilderness.\n\nJanuary 11, 1982\nM EM ORANDUM OPINION FOR TH E ATTORNEY GENERAL\nWe have been asked by the Office of Legislative Affairs for our views\nconcerning whether \xc2\xa7 603 of the Federal Land Policy and Management Act of\n1976 (FLPM A), 43 U .S .C . \xc2\xa7 1782 (1976), authorizes the President to determine\nthat areas being studied for wilderness designation are not suitable for such\ndesignation and to return such areas to general use m anagement without con\xc2\xad\ngressional action.\nThis question has arisen as a result of a proposal by the Department o f the\nInterior urging the President unilaterally to take such action with respect to the\nShoshone Pygm y Sage area either in the form of a presidential executive order or\na memorandum from the President. An executive order would have to be\nsubmitted to the Attorney General for consideration as to both form and legality\nprior to submission to the President. Exec. O rder No. 11030, 3 C.F.R. 610\n[1959-1963 Com p.], as amended. Interior has not articulated a legal rationale for\nsuggesting a memorandum rather than an executive order. However, a memoran\xc2\xad\ndum contem plating action of this nature certainly implicates the Attorney Gener\xc2\xad\nal\xe2\x80\x99s responsibility to provide legal advice to the President, 28 U .S.C . \xc2\xa7 509\n(1976), on issues relative to the President\xe2\x80\x99s constitutional obligation \xe2\x80\x9c to take\nCare that the Laws be faithfully executed.\xe2\x80\x9d U .S. C onst., Art. II, \xc2\xa7 3. Therefore,\nsince your legal advice will be sought with respect to this matter irrespective of\nthe procedure contem plated, these views are submitted directly to you.\nWe do not believe that the President has the legal authority to take the action\nbeing suggested by the Departm ent of the Interior. We believe that he m ust\nforward to the Congress his recom m endations as to whether land should or\nshould not be designated as wilderness and that he cannot remove land from\n63\n\n\x0cconsideration for such designation and return it to multiple use management by\nunilateral a ctio n .1\n\nI. Background\nThe FL PM A , 43 U .S.C. \xc2\xa7\xc2\xa7 1701-1782 (1976), was an attempt to establish a\ncoherent, com prehensive schem e of federal land management based on multiple\nuse and sustained yield. Id., \xc2\xa7 1701(a)(7). In order to effect this goal, the\nFLPM A required the Secretary o f the Interior (Secretary) to prepare and maintain\non a continuing basis an inventory of all federal lands. Id., \xc2\xa7 1711. Based on\nlands identified in the inventory, the Bureau of Land M anagement (BLM) is\nrequired to conduct a study o f all areas with wilderness characteristics. Id.,\n\xc2\xa7 1782.2 T he Secretary must, a s the studies are completed, make recommenda\xc2\xad\ntions to the President as to the suitability or non-suitability o f each area for\nperm anent designation as a wilderness. Id ., \xc2\xa7 1782(a). The President is then\nrequired to forward to the C ongress \xe2\x80\x9chis recommendations with respect to\ndesignation as w ilderness of each such area. . . .\xe2\x80\x9d Id ., \xc2\xa7 1782(b). The statute\nexplicitly states how the land is to be managed in the interim between the\nbeginning of the study period and the final decision, a period that may last years.\nD uring the period of review of such areas and until Congress has\ndeterm ined otherwise, the Secretary shall continue to manage\nsuch lands . . . in a m anner so as not to impair the suitability of\nsuch areas for preservation as wilderness. . . .\nId ., \xc2\xa7 1782(c).\n\nII. Dispute Over the FLPMA, \xc2\xa7 603, 43 U.S.C. \xc2\xa7 1782\nIn Septem ber of this year, an Associate Solicitor Designate of Interior subm it\xc2\xad\nted a m em orandum (M emorandum) to the Secretary concluding that the Presi\xc2\xad\ndent has the discretion to release land he deems unsuitable for wilderness\ndesignation to m ultiple use m anagem ent without congressional action.3 A l\xc2\xad\nthough conceding that \xc2\xa7 603 did not give the President this authority explicitly,\nthe M em orandum concluded that the \xe2\x80\x9c better conclusion\xe2\x80\x9d is that \xc2\xa7 603 implicitly\ngranted the President that authority. The M emorandum concluded that the\nPresident need forward to Congress only those recommendations that favor\nw ilderness designation of areas under study. It expressed the view that unilateral\npresidential action to release land under review to multiple use management if the\nPresident determ ined that such land was not suitable for wilderness designation\nwas consistent with congressional intent.\n1 M ultiple use m a n ag em e n t is defined in 43 U .S .C . \xc2\xa7 1702(c) to include \xe2\x80\x9c a com bination o f balanced an d diverse\nresource uses . . . in c lu d in g , but not limited to , recreation, ran g e, timber, m in erals, w atershed, w ildlife and fish,\nan d natural sc e n ic , scientific and historical valu es."\n2 W ilderness is defined in 16 U S.C \xc2\xa7 1131 (c) ( 1976)\n3 M em o ra n d u m for S ecretary Watt from A sso ciate S olicitor D esignate G o o d , Sept. 4 , 1981\n\n64\n\n\x0cThe Land and Natural Resources Division of the Department of Justice\n(Lands) disagrees with this analysis.4 It concludes that the statute requires the\nPresident to forward recommendations on all areas that have been studied,\nwhether or not the recommendations favor wilderness designations. Lands\nbelieves that Congress has retained for itself the authority to determine whether\nor not an area should be designated as wilderness.\nYour advice may be requested because of your duty to resolve interagency\nlegal disputes, Exec. Order No. 12146, 3 C.F.R. 409 (1980), reprin ted in 28\nU .S.C . \xc2\xa7 509 note (Supp. V 1981), your duty to advise the President on the\ninterpretation of the laws, 28 U .S.C . \xc2\xa7 509, or to approve Presidential Executive\nOrders for legality. Exec. Order No. 11030, 3 C.F.R. 610 (1959\xe2\x80\x941963 Comp.),\nas am ended. A fter a careful examination of \xc2\xa7 603, its legislative history and prior\nadministrative practice, we have concluded that the President must forward\nrecommendations to Congress on all areas of land studied. We believe that the\nPresident does not have the authority to return lands to multiple use management\nwithout congressional action.\n\nIII. Analysis\nThe central issue is whether Congress intended the President to forward to it\nrecommendations on all areas with wilderness characteristics that had been\nstudied by BLM. The pertinent language of the statute is:\n(a) [T]he Secretary shall review those roadless areas o f five\nthousand acres or more and roadless islands of the public lands\n. . . having wilderness characteristics . . . and shall from time to\ntime report to the President his recommendation as to the suit\xc2\xad\nability or nonsuitability o f each such area or island for preserva\xc2\xad\ntion as wilderness. . . .\n(b) The President shall advise the President of the Senate and\nthe Speaker of the House o f Representatives of his recommenda\xc2\xad\ntions with respect to designation as wilderness c f each such area.\n. . . A recommendation of the President for designation as wilder\xc2\xad\nness shall become effective only if so provided by an Act of\nCongress.\n(c) During the period of review of such areas and until Congress\nhas determ ined otherwise, the Secretary shall continue to manage\nsuch lands . . . in a manner so as not to impair the suitability of\nsuch areas for preservation as wilderness. . . .\n43 U .S.C . \xc2\xa7 1782 (emphasis added). The parallel construction of the statute\nleads us to conclude that Congress was referring, in each subsection, to the same\n4 M em orandum for A ttorney G eneral French Sm ith and D eputy A ttorney G eneral Schm ults from A ssistant\nA ttorney G eneral D inkins. D ec. 2 1 . 1981\n\n65\n\n\x0careas of land\xe2\x80\x94 those studied by BLM for possible designation as wilderness.5 For\neach such area the Secretary must prepare recommendations, the President must\nprepare recom m endations, and the Secretary m ust, \xe2\x80\x9c until Congress has deter\xc2\xad\nm ined o th erw ise,\xe2\x80\x9d continue to m anage such areas \xe2\x80\x9c so as not to impair the\nsuitability o f such areas for preservation as wilderness.\xe2\x80\x9d Id ., \xc2\xa7 1782(c). There is\nnothing on the face o f the statute w hich provides the President with any explicit\nauthority to refuse to m ake recommendations for areas he believes unsuitable for\nw ilderness designation or to release those lands for multiple use management\nw ithout congressional action. A natural reading o f the statute does not supply an\ninference that the President was given such authority and prior administrative\npractice is to the contrary.\nT he language in \xc2\xa7 603 regarding transm ission of recommendations is virtually\nidentical to that found in the W ilderness A ct o f 1964. 16 U .S.C . \xc2\xa7 1132(c)\n(1976).6 The W ilderness Act of 1964 directed the Secretary to review \xe2\x80\x9c every\nroadless area\xe2\x80\x9d of 5,000 or more acres in the national park system and the national\nw ildlife refuges and gam e reserves in order to identify those with wilderness\ncharacteristics. Id. The statute requires the Secretary to report to the President his\nrecom m endations \xe2\x80\x9c as to the suitability or nonsuitability of each such area\xe2\x80\x9d and\nthe President to report to Congress \xe2\x80\x9c his recommendations with respect to\ndesignation as w ilderness of each such area. . . .\xe2\x80\x9d Id. In applying this provision,\nat least three previous Presidents have interpreted it to require them to forward all\nrecom m endations to Congress, including those recommending against designa\xc2\xad\ntion o f certain areas as wilderness.7 Since the FLPM A \xe2\x80\x99s wilderness review\nprovisions are directed towards all the lands within the Secretary\xe2\x80\x99s custody that\nare not covered by the Wilderness Act of 1964, the vast \xe2\x80\x9c public lands\xe2\x80\x9d adm in\xc2\xad\nistered by B L M , it is unlikely that C ongress, adopting the same statutory\nlanguage for the same executive departm ent, intended to change the process.8\nW hen C ongress enacts a new law incorporating language contained in another\nlaw on the sam e subject with full awareness of administrative practice under the\nprior law, it would require com pelling evidence to conclude that Congress\nintended to alter the process\xe2\x80\x94 especially in a direction which would reduce\nco n g ressio n al power. L o r illa r d v. P ons, 4 34 U .S . 575, 580-81 (1978);\nC h em eh uevi Tribe v. FPC, 420 U .S. 395, 408-10 (1975); Com m issioner v.\nE state o f N oel, 380 U .S. 678, 682 (1965).\n5 T h is parallel construction is even more e v id e n t in an ea rlier version o f th e bill, H .R . 562 2 , 94th C o n g ., 1st\nS e s s ., 121 C o n g Rec 8999 (1975), introduced by Rep. S eib erlin g . Section 103 o f H .R . 5622 was an alm ost\nv erbatim version of \xc2\xa7 603 except thal it w as w ritten as one lo n g paragraph, rather than three subsections.\n6 \xe2\x80\x9c fT ]he S ecretary o f th e Interior\nsh all report to the P residen t his recom m endation as to the suitability o r\nn o n su ita b ih ty o f each such area o r island for preservation as w ilderness T h e President shall ad v ise the P resident of\nth e Senate and th e S peaker o f th e House of R epresentatives o f h is recom m endation with respect to the designation as\nw ilderness o f ea ch such area o r island .\n16 U .S .C . \xc2\xa7 1132(c).\n7 T h e se actions by P residents Ford, N ix o n , and Johnson are reflected in the follow ing material: Letter of\nT ransm ittal from P resident F ord, Dec 4, 1974, Public Papers o f G erald R F ord, at 7 0 9 -1 0 , Letter of Transm ittal\nfrom P resident N ix o n , June 13, 1974, Public le p e r s of Richard N ixon , at 4 9 6 ; M em orandum to the C ongress from\nP resid en t N ix o n , N ov 2 8 , 1973, Public f^ p e rs o f Richard N ix o n , at 98 5 ; L etter o f Transm ittal from President\nN ix o n , Apr. 2 8 , 1971, Public ftipers of R ic h ard N ixon, at 5 9 2 ; Letter o f Transm ittal from President Johnson,\nJan. 18, 1969, Public Papers o f Lyndon B . Jo h n so n , at 1365.\n8 P ublic la n d s, 43 U S C . \xc2\xa7 1702(e), co n stitu te the vast m a jo rity o f the lands overseen by Interior.\n\n66\n\n\x0cTaken as a whole, therefore, we believe that \xc2\xa7 1782 establishes a schem e\nwhereby the Executive Branch supplies recommendations and data for Congress\nfor a congressional decision as to each area. Until a congressional determination\nis made, the Secretary is required to manage such land \xe2\x80\x9c so as not to impair the\nsuitability of such areas for preservation as wilderness.\xe2\x80\x9d 43 U .S.C . \xc2\xa7 1782(c).\nThis plain reading of \xc2\xa7 603 is supported by the available legislative history.\nBoth the House and Senate versions o f the FLPM A, H .R. 13777 and S. 507, had\nwilderness review sections. The Senate\xe2\x80\x99s version, S. 507, \xc2\xa7 103(d), was very\nshort and ordered reviews to be done in accord with the Wilderness Act of 1964.\n(d) Areas identified pursuant to section 102 as having wilderness\ncharacteristics shall be reviewed within fifteen years of enactment\nof this Act pursuant to the procedures set forth in subsections 3(c)\nand (d )o fth e [Wilderness Act of 1964, 1 6 U .S .C .\xc2\xa7 1132(c), (d).]\nS. 507, \xc2\xa7 103(d), reprinted in S. Rep. No. 583, 94th C ong., 1st Sess. 5 (1975).\nThe sectional analysis states:\nSubsection (d) . . . provides that once these areas are identified\nthe Secretary must study them to determine whether or not they\nare suitable for inclusion in the National Wilderness Preservation\nSystem an d subm it his recom m endations to the President, w ho, in\nturn, must submit his own recom m endations to the Congress.\nId. at 46 (emphasis added).9\n\nThe House version, H .R. 13777, \xc2\xa7 603, was longer, in large part because it\nrepeated in full the language of the Wilderness Act of 1964. Com pare 16 U .S .C .\n\xc2\xa7 1132(c) with 43 U .S.C . \xc2\xa7 1782(a)-(c). W hen, in preparation for the con\xc2\xad\nference com m ittee, the Senate staff prepared a Committee Print attem pting to\nmerge S. 507 and H.R. 13777, it adopted the expanded language of the H ouse\xe2\x80\x99s\nversion, \xc2\xa7 6 0 3 ,10 and it was this language that was ultimately adopted by\nCongress.\nThe Committee Print highlighted proposed \xc2\xa7 603(d) as the one provision of\n\xc2\xa7 603 which differed from the Senate\xe2\x80\x99s version." This subsection stated:\nWhere the President recommends pursuant to subsection (b ) of\nthis section that a roadless area or island is not suitable for\ninclusion in the National W ilderness Preservation System, that\nrecommendation shall take effect [unless vetoed within 120 days\nby one House.]\nId. at 857.\n9 T h e identical analysis was provided on an ea rlier version o f the b ill, S . 4 2 4 . See S Rep. N o. 8 7 3 , 93rd C o n g .,\n2d S ess. 38 (1974) (\xc2\xa7 103(e))\n10 See Staff o f S enate C om m , on Energy and N atural R esources, 95th C ong , 2d S e s s., Legislative History c f the\nFederal Land Policy and Management Act c f 1976. at 747 (C o m m . Print 1978).\n11 Id at 857 T h e H ouse version was originally \xc2\xa7 3 1 1(d) but w as renum bered as \xc2\xa7 603 by the Senate staffers\nco m p iling the C om m ittee Print. See n 10 supra\n\n67\n\n\x0cThis language m akes it m anifest that the President was expected to make\nrecom m endations under \xc2\xa7 603(b) for areas he believed unsuitable for wilderness\ndesignation as well as for those he believed suitable. The difference was that the\nH ouse version would have allowed the President\xe2\x80\x99s recommendation regarding\nareas he regarded as unsuitable to become effective absent an affirmative vote by\none H o u se .12 This understanding is reflected in the House Report. \xe2\x80\x9c Subsection\n(d) provides options whereby areas which the President has recommended as\nbeing non-suitable as wilderness either can be restored with minimum delay to\nfull m ultiple-use management o r considered further by the Congress for possible\nin c lu sio n in th e N ational W ild e rn e ss P re se rv a tio n S y ste m .\xe2\x80\x9d H .R . Rep.\nN o. 1163, 94th C ong., 2d Sess. 17 (1976) (\xc2\xa7 3 1 1(d)). See also 122 Cong. Rec.\n24701 (1976) (rem arks of Sen. Jackson).\nIn the conference, Rep. Seiberling objected to language in \xc2\xa7 603(c) and to all\no f \xc2\xa7 603(d). Transcript of Conference Committee on S. 507, 94th C ong., 2d\nS ess., at 8 8 -9 7 (Transcript).\nCO N G RESSM A N SEIBERLING: [T]his means, even where\nyou had something that was statutorily made part of the study, or\nhad previously been withdrawn and was covered by the 15-year\nreview period, that some special interests could get the Secretary\nto knock it out and the period of review would terminate.\nS o , h ere ag ain we have an e ffo rt to w h ittle this thing\ndown. . . .\nCO N G RESSM A N MELCHER: What the gentleman from Ohio\nis proposing is we delete what words?\nC O N G R E SS M A N SE IB E R L IN G : [D Jelete paragraph (d) on\npage 109.\nTranscript at 88 -8 9 .\nA fte r a v ig o ro u s b u t inconclusive debate on \xc2\xa7 603(c), Rep. S eiberling\nintervened.\nCO N G R ESSM A N SEIBERLING: Mr. Chairman, we are getting\nhopelessly bogged down in this. My suggestion is the House\nConferees propose we leave Section (c) as it is in the draft bill\nbefore us. I w ill withdraw my objections to it provided we take out\n(d) which is the bold-face type on page 109 which, in my view,\nwould deprive Congress which would give the Secretary the\nability to deprive Congress of the ability to finally decide what to\ndo at the end of the study perio d .13\n12 T h is M em o ra n d u m d o es not address th e constitutionality o f such a o ne-H ouse veto\n13 A s discu ssed infra in m ore detail, we attach no particular significance to th e som ew hat garbled structure o f this\nsen te n ce. W e believe the co n tex t clearly indicates that the C ongressm an was expressing concern that subsection (d)\nw ould give the E xecutive B ran c h power to deprive the C ongress o f the authority to finally decide w hether a\np articu lar area was to be desig n ated wilderness o r not. The Interior D epartm ent M em orandum , through the use of an\nellip sis, giv es this statem en t the same effect.\n\n68\n\n\x0cHe could completely by-pass the study period by simply rec\xc2\xad\nommending a certain area be taken out of the study program and\nthat would be the end of it unless Congress vetoed it.\nCONGRESSM AN MELCHER: Is there any objection to the\nproposal by Mr. Seiberling on the House side?\nCONGRESSM AN YOUNG: Do I understand the gentleman cor\xc2\xad\nrectly? All we are doing is deleting (d)?\nCONGRESSM AN MELCHER: Deleting (d), leaving the rest of\nthe language.\nTranscript at 93-94. Section (d) was deleted, therefore, id. at 97, because o f the\nconcern articulated by Rep. Seiberling that it placed too much power in the hands\nof the Executive by diluting Congress\xe2\x80\x99 check on the President\xe2\x80\x99s recommendations\nas to non-suitable areas. The concern which was expressed is that an area could\nbe declared unsuitable and taken out of eligibility for wilderness treatment\nmerely as a result of an Executive Branch decision and the absence of affirmative\naction by Congress. The entire debate proceeded on the assumption that the\nPresident had the duty to make recommendations as to non-suitable areas under\n\xc2\xa7 603(b) prior to the deletion of subsection (d)\xe2\x80\x94 and afterwards. The only\ndifference after the deletion of (d) is that those recommendations cannot become\nlaw without affirmative congressional action. They remain recommendations.\nThe same analysis of the statute\xe2\x80\x99s requirement seems to have been made by at\nleast one court. Utah v. A ndrus, 486 F. Supp. 995 (D. Utah 1979), involved a\ncharge that B LM \xe2\x80\x99s regulation of federal land that had been identified as having\nwilderness characteristics was injuring a piece o f state property that it com pletely\nsurrounded. In setting out the facts underlying the governm ent\xe2\x80\x99s interest, the\ncourt described the wilderness study procedure in an explanatory footnote.\nThe BLM procedure for carrying out the wilderness review\nportions of FLPM A is as follows: First, the agency identifies\nroadless areas of 5000 acres or more which have wilderness\ncharacteristics. These areas are then designated W ilderness Study\nAreas (W SAs), and BLM studies each area to determine the\nsuitability of the area for inclusion in the W ilderness System. At\nthis point in its planning, BLM looks at all the potential uses of an\narea, including the potential for mineral development. A fter\ncompletion of this phase BLM reports to the President its recom\xc2\xad\nmendation as to each area\xe2\x80\x99s suitability (or lack thereof ) for inclu\xc2\xad\nsion in the Wilderness System. The President then m akes his\nr e c o m m e n d a tio n s to C o n g r e s s , w h ic h m a k e s th e f i n a l\ndeterm ination.\n\n486 F. Supp. at 1001 n.9 (emphasis added) (dictum).\n69\n\n\x0cIV. The Associate Solicitor\xe2\x80\x99s Memorandum\nThe M em orandum relies on the statutory language of 43 U .S .C . \xc2\xa7 1782 and\nco n g ressio n al intent to support its position. We are not convinced by its\nargum ents.\n1. T he M em orandum points out that whereas the Secretary makes recom m en\xc2\xad\ndations to the President \xe2\x80\x9c as to the suitability or nonsuitability of each such area,\xe2\x80\x9d\n43 U .S .C . \xc2\xa7 1782(a), the President makes recommendations to Congress only\n\xe2\x80\x9c with respect to designation as w ilderness of each such area.\xe2\x80\x9d Id., \xc2\xa7 1782(b).\nThe difference in language between subsections (a) and (b) is read by the\nA ssociate Solicitor to mean that C ongress did not intend to require the President\nto subm it recom m endations as to unsuitable land\xe2\x80\x94 otherwise, Congress \xe2\x80\x9c surely\nwould have selected language sim ilar to that contained in subsection (a).\xe2\x80\x9d\nM em orandum at 2.\nWe believe that the language employed by Congress does not support the\nconstruction suggested. First, subsection (b) does not require the President to\nsubm it only recommendations favoring designation as wilderness, but rather\nrecom m endations \xe2\x80\x9c with respect to designation as wilderness o f each such area.\xe2\x80\x9d\n43 U .S .C . \xc2\xa7 1782(b) (emphasis added). Requiring the President to make a\nrecom m endation \xe2\x80\x9c with respect to \xe2\x80\x9d \xe2\x80\x9c each such area\xe2\x80\x9d seems fully as broad as\nrequiring the Secretary to make a recommendation for each such area as to its\nsuitability or non-suitability. W hile the language in subsections (a) and (b) is not\nidentical, the words in subsection (b) are certainly broad enough to embrace the\nprocess referred to in subsection (a), do not expressly connote a more limited\nintent, and the term s of (a) are identical to those used in 16 U .S.C . \xc2\xa7 1132 which\nhas not been construed in the m anner suggested by the Associate Solicitor. In\nshort, we can see no basis for the interpretation reached by the Associate\nSolicitor.\nSecond, we do not believe, as Interior does, that \xe2\x80\x9c each such area\xe2\x80\x9d is ambigu\xc2\xad\nous. M em orandum at 4. We believe that every use of \xe2\x80\x9c each such area\xe2\x80\x9d in \xc2\xa7 1782\nhas the sam e m eaning. Although the M emorandum argues that \xe2\x80\x9c \xe2\x80\x98of each such\narea\xe2\x80\x99 can ju st as easily \xe2\x80\x9d be construed as referring only to the areas the President\nrecom m ends as \xe2\x80\x9c suitable for w ilderness,\xe2\x80\x9d id ., we disagree. First, this would\nrequire assum ing that Congress meant the sam e phrase to have two different\nm eanings within the space of a few sentences, a most unlikely event. Second, it\nwould require reading \xe2\x80\x9c of each such area\xe2\x80\x9d as referring back to some prior point\nin the section where \xe2\x80\x9c such\xe2\x80\x9d areas are identified\xe2\x80\x94 but there is no prior reference\nthat would give a narrow meaning to the word \xe2\x80\x9c such.\xe2\x80\x9d The only possible \xe2\x80\x9c areas\xe2\x80\x9d\nto which \xe2\x80\x9c such\xe2\x80\x9d can refer are in \xc2\xa7 1782(a) which, the Associate Solicitor\nconcedes, includes all areas being studied.14\n2. Interior believes that \xc2\xa7 1782(c) is also am biguous. Again, it is unlikely that\nCongress would intend \xe2\x80\x9c such areas\xe2\x80\x9d and \xe2\x80\x9c such lands,\xe2\x80\x9d both phrases found in\n14 We w ould reach th is co n c lu sio n even if w e did not have the exam ple o f o th er statutes w hich com bine both these\nsen tences in the sam e parag ra p h . See supra, notes 5 & 6\n\n70\n\n\x0c\xc2\xa7 1782(c), to differ so radically in meaning from such subsection to subsection.\nInterior argues, however, that \xe2\x80\x9c the \xe2\x80\x98such lands\xe2\x80\x99 provision more appropriately\nrefers to those lands that have been recommended to Congress for wilderness\nunder section 603(b) . . . [They are lands] which have been determined by the\nPresident to be suitable for wilderness purposes.\xe2\x80\x9d Memorandum at 4, 5. We\ncannot agree that this interpretation comports with the \xe2\x80\x9c broad schem e\xe2\x80\x9d of\n\xc2\xa7 1782. Id. at 4. If the lands can be returned to multiple use management as soon\nas the President decides they are unsuitable, it is certainly possible that such use\nwould irreparably impair the suitability of such areas for preservation as wilder\xc2\xad\nness. By the tim e Congress had learned of the decision and acted to override it,\nthe characteristics sought to be preserved might no longer exist.15 T he interim\nmanagement provision would be frustrated by irreversible disturbances of the\nstatus quo. See P arkerv. U nited States, 448 F. 2d 7 9 3 ,7 9 7 (10th Cir. 1971 ),c e r t.\ndenied, 405 U .S. 989 (1972).\n3.\nSection 1782(b) concludes with the sentence, \xe2\x80\x9cA recommendation of the\nPresident for designation as wilderness shall becom e effective only if so provided\nby an Act of Congress.\xe2\x80\x9d The Memorandum takes the position that this dem on\xc2\xad\nstrates that Congress retained control only of areas which are to be designated as\nwilderness, not of unsuitable areas. \xe2\x80\x9c The logical conclusion is that no provision\n[for unsuitable areas] was necessary since reports on such nonsuitable areas\nwould not be required to be sent to Congress for decision.\xe2\x80\x9d M emorandum at 3.\nThe negative inference of this sentence provides, we believe, the strongest\nsupport for the interpretation urged by Interior. However, we believe that the\nInterior interpretation misapprehends Congress\xe2\x80\x99 concern. One of the express\ncongressional purposes for the FLPM A was to reassert Congress\xe2\x80\x99 control over\nfederal lands, specifically, to insure that\nthe Congress exercise its constitutional authority to withdraw or\notherwise designate or dedicate Federal lands for specified pur\xc2\xad\nposes and that Congress delineate the extent to which the Ex\xc2\xad\necutive may withdraw lands without legislative action.\n43 U .S.C . \xc2\xa7 1701(a)(4).16 The FLPMA repealed the President\xe2\x80\x99s implied au\xc2\xad\nthority to make withdrawals, FLPM A, \xc2\xa7 704(a) Pub. L. No. 94-579, 90 Stat.\n2792 (1976), and carefully limited the Executive\xe2\x80\x99s express authority to make\nwithdrawals. See 43 U .S .C . \xc2\xa7 1714. Even \xc2\xa7 603 contains a limit on the Secre\xc2\xad\nta ry \xe2\x80\x99s w ithdraw al authority. 43 U .S .C . \xc2\xa7 1782(c) (m ining lands). Section\n1782(b) is an expression of Congress\xe2\x80\x99 concern that the President not make any\neffort to protect wilderness lands by unilateral action. It is very weak support for\nthe argum ent that Congress left in the President\xe2\x80\x99s hands the even broader\nauthority to determ ine the status of areas by failing to make a recommendation.\n15 T h e rationale for preserving the character of th e land is theoretically stronger, from C o n g ress\xe2\x80\x99 stan d p o in t, for\nareas w hich the P resident does not believe to be suitable H e w ould not be likely to need an y congressional\nadm onition to avoid im pairing the w ilderness characteristics for lands w hich he believed suitable for w ild ern ess\ndesignation\n16 W ithdraw als, 43 U S .C \xc2\xa7 1702(j), are the w ithholding of Federal land from settlem ent in order to lim it\nactivities and thereby m aintain som e particular public value, such as w ilderness characteristics.\n\n71\n\n\x0cThis sentence of subsection (b), on which this argument is predicated, is also\nfound in the W ilderness Act, 16 U .S .C . \xc2\xa7 1132, which, as noted earlier, was\nadm inistered by three Presidents to require reports and recommendations to\nC ongress on suitable and non-suitable areas. This construction, the plain reading\no f the statute as a w hole, the oth er inferences to be drawn from the language of the\nstatute and the legislative history, considerably outweigh the argument made by\nInterior. In short, we do not believe that this sentence can be construed in the\nm anner suggested.\n4. Interior also finds support for its position in the fact that the Secretary is\nrequired to conduct mineral surveys only for areas he considers suitable for\ninclusion in the wilderness system , 43 U .S .C . \xc2\xa7 1782(a). It argues that this\nindicates that Congress only w anted such information on suitable areas because it\nwould not be involved in decisions about unsuitable areas. A short answer to this\nis that any inference about the mineral surveys must apply equally to the\nPresident. Since it is the Secretary who conducts the surveys based on his\nassessm ent of what areas are suitable, Interior\xe2\x80\x99s logic would compel the con\xc2\xad\nclusion that the President also would only be involved in decisions regarding\nsuitable areas because those areas are the only ones for which the President would\nreceive surveys. Obviously, the statute does not permit such a conclusion. It\nseem s more likely that, in the interests of administrative economy, Congress\ndirected mineral surveys of the areas that will probably end up being designated\nas w ilderness but did not intend this to be a limit on the areas as to which the\nSecretary or the President should make recommendations.\n5. T he next rationale offered by Interior is that requiring the President to make\nrecom m endations on all areas w ill place the land into an administrative quasi\xc2\xad\nperm anent lim bo that will frustrate FLPM A \xe2\x80\x99s purpose. M emorandum at 5 -6 .\nThis purpose, it is said, is the \xe2\x80\x9c expeditious\xe2\x80\x9d return of land to management based\non m ultiple use. Memorandum at 6. First, this ignores the categorical directive in\n\xc2\xa7 1782(c) that the land be managed to protect its wilderness characteristics \xe2\x80\x9c until\nC ongress has determ ined otherwise.\xe2\x80\x9d Second, it assumes that this interim man\xc2\xad\nagem ent schem e requires the Secretary to act so narrowly that the land will be of\nno use for the long period of tim e that Congress has the area\xe2\x80\x99s future under\nadvisem ent. This ignores both the provisos in \xc2\xa7 1782(c) that provide for certain\ncontinuing uses of the land and th e court interpretations that have upheld various\nactivities in the areas. See Rocky M ountain O il & G as A ss\xe2\x80\x99n v. Andrus, 500 F.\nSupp. 1338 (D. W yo. 1980) (mining), a p peal docketed, No. 81-1040 (10th Cir.\nJan. 5, 1981)*; U tah v. Andrus, 486 F. Supp. 995 (D. Utah 1979) (access roads\nfor tim ber harvesting). Further, the status of an area recommended for non\xc2\xad\ninclusion will stay in the status dictated by subsection (c) only as long as\nC ongress w ishes. It is difficult to conclude that this somehow is contrary to\ncongressional intent.\n\xe2\x99\xa6 N o t e . In response Jo ihe Secretary\'s appeal in this case, th e court of appeals narrow ed th e d istrict c o u rt\xe2\x80\x99s\nco n stru c tio n o f the statutory exem ption for e x istin g uses of designated lands, holding that \xe2\x80\x9c C o n g ress in ten d ed to\nlim it existing m ining and grazing activities to th e level of physical activity b eing undertaken\nso as to prevent\nim p airm en t o f w ilderness characteristics \xe2\x80\x99* 696 F.2d 734, 749 (10th C ir 1982) citin g Utah v. Andrus. 486 F. Supp\n9 9 5 (D U tah 1979). Ed\n\n72\n\n\x0c6.\nInterior argues that the conference committee transcript indicates that Rep.\nSeiberling was confused and thought that proposed \xc2\xa7 603(d) gave the Secretary,\nrather than the President, the power to release unsuitable areas. M emorandum at\n9. See supra, n. 13. We doubt whether Rep. Seiberling was confused, not only\nbecause of his long involvement with FLPM A, see supra, n. 5, culminating in his\nbeing chosen as a member of the House delegation to the conference, but also\nbecause of his argum ents, see Transcript, supra, at 88-97, detailing his objec\xc2\xad\ntions to proposed \xc2\xa7 603(d). The use of the word \xe2\x80\x9c Secretary\xe2\x80\x9d is not material to the\ncentral issue under debate and we simply cannot attach any significance to it. Nor\ncan we agree with Interior\xe2\x80\x99s argument that Rep. Seiberling supported the deletion\nof \xc2\xa7 603(d) \xe2\x80\x9c even after recognizing that by such deletion the executive branch\ncould release the land without Congressional approval.\xe2\x80\x9d Memorandum at 9. The\nTranscript seems to us to mean just the opposite\xe2\x80\x94 that Rep. Seiberling supported\nthe deletion of \xc2\xa7 603(d) because he did not want the Executive Branch to be able\nto bypass congressional action on this subject. Transcript, supra, at 94. The\nquoted language simply does not support the significance attached to it by the\nAssociate Solicitor.\nFinally, Interior argues that since \xc2\xa7 603(b) already gave the President the\npower to release unsuitable land, the purpose of \xc2\xa7 603(d) was to give Congress\nthe authority to override that release. Deletion of \xc2\xa7 603(d), therefore, is con\xc2\xad\nstrued to mean that Congress did not want to exercise this review authority and\nleft release to the President\xe2\x80\x99s unfettered discretion. We disagree. Interior\xe2\x80\x99s entire\nargument is based on the premise with which we are unable to agree, that\n\xc2\xa7 603(b) gives the President release authority. For the reasons stated above, we\ncannot agree with Interior\xe2\x80\x99s reasoning.\nWe conclude that \xc2\xa7 603 calls upon the Secretary to conduct a study of certain\nareas, to make recommendations to the President with respect thereto, and for the\nPresident to make recommendations concerning those areas to the Congress. We\nare unable to find any credible support for the argument that the President need\nnot make recommendations to Congress as to some areas, but may in fact remove\nthe land from further consideration without any congressional submission. The\nstatute\xe2\x80\x99s language, its legislative history, administrative practice regarding pre\xc2\xad\nvious legislation which is virtually identical, and judicial interpretation all lead to\nthe conclusion that there is no implicit authority in the President to unilaterally\nrelease lands from further study merely because he believes them to be unsuita\xc2\xad\nble. The President must make recommendations as to all areas studied by the\nSecretary and he must await Congress\xe2\x80\x99 decision as to their ultimate fate.\nT\n\nheodore\n\nB.\n\nO\n\nlson\n\nAssistant Attorney G eneral\nOffice o f L egal Counsel\n\n73\n\n\x0c'


b'Effects o f a Presidential Pardon\nA full and unconditional presidential pardon precludes the exercise of the authority to deport a con\xc2\xad\nvicted alien under 8 U.S.C. \xc2\xa7 1251(a)(2).\nA full and unconditional presidential pardon removes a state firearm disability arising as a result of\na conviction o f a federal crime.\nA full and unconditional presidential pardon extends to the remission of restitution ordered by a court\npursuant to 18 U.S.C. \xc2\xa7 3551 (b)-(c) as a \xe2\x80\x9c sanction\xe2\x80\x9d authorized in addition to imprisonment, proba\xc2\xad\ntion, or a fine until such time as the restitution award is paid to the victim.\n\nJune 19, 1995\nM em o ra n d u m for t h e P a rd o n A tto r n ey\n\nThis memorandum responds to your request for our opinion concerning whether\na full and unconditional presidential pardon precludes the exercise of the authority\nto deport a convicted alien under 8 U.S.C. \xc2\xa7 1251(a)(2),* removes a state firearm\ndisability arising as a result of conviction of a federal crime, or extends to the\nremission of court-ordered criminal restitution not yet received by the victim of\nthe pardoned offender. We answer all three questions in the affirmative.\nI.\nA.\nYour first question requires us to examine the effect of a presidential pardon\non the deportability of an alien on the ground that he or she has been convicted\nof certain crimes. Section 1251(a) of title 8 describes the classes of aliens who\n\xe2\x80\x9c shall, upon order of the Attorney General, be deported.\xe2\x80\x9d The various criminal\nconvictions that make an alien deportable are set forth in subsections (A)-(D) of\n\xc2\xa7 1251(a)(2). Subsection 1251(a)(2)(A)(iv) waives the application of subsection\n(A) (involving crimes of \xe2\x80\x9c moral turpitude\xe2\x80\x9d and \xe2\x80\x9c aggravated felonies\xe2\x80\x9d ) for any\noffender who \xe2\x80\x9c has been granted a full and unconditional pardon by the President\nof the United States or by the Governor of any of the several States.\xe2\x80\x9d The statute\nis silent, however, as to the effect of such a pardon on the convictions listed\nin subsections (B)-(D), which include offenses involving controlled substances,\nfirearms, and miscellaneous crimes.\nThe Immigration and Naturalization Service takes the position that a pardon\nonly removes the authority to deport an alien whose conviction falls within sub\xe2\x99\xa6 E ditor\xe2\x80\x99s\nsection 241\nthat section\nPub. L. No.\n\nnote: At the tim e this memorandum was issued, section 1251 o f title 8, United States Code, codified\no f title II o f the Immigration and Naturalization Act (\xe2\x80\x9c IN A \xe2\x80\x9d )* Subsequently, on September 30, 1996,\nwas redesignated as section 237 o f the INA, and was thereafter recodified as 8 U.S.C. \xc2\xa7 1227. See\n104-208, \xc2\xa7 305(a)(2), 110Stat. 3009,3009-598 (1996).\n\n160\n\n\x0cEffects o f a Presidential Pardon\n\nsection (A). Although the statute only addresses the effect of a pardon with respect\nto crimes involving moral turpitude and aggravated felonies, that conclusion does\nnot end the analysis of this issue, because congressional legislation cannot define\nor limit the effect of a presidential pardon. As Acting Attorney General John W.\nDavis opined in a similar context:\nThe fact that by the act of August 22, 1912, Congress expressly\nrecognized the right of the President to remit such penalties \xe2\x80\x9c where\nthe offense was committed in time of peace and where the exercise\nof such clemency will not be prejudicial to the public interest\xe2\x80\x9d\ncan not affect the power of the President, which exists independ\xc2\xad\nently of legislative recognition, to remit such penalties by pardon,\nwhether the offense [was] committed in time of peace or in time\nof war.\nNaval Service \xe2\x80\x94 Desertion\xe2\x80\x94 Pardon , 31 Op. Att\xe2\x80\x99y Gen. 225, 232 (1918); see also\nEx Parte Garland , 71 U.S. (4 Wall.) 333, 380 (1866) (\xe2\x80\x9c This power of the Presi\xc2\xad\n\ndent [i.e., the pardon power] is not subject to legislative control. Congress can\nneither limit the effect of his pardon, nor exclude from its exercise any class\nof offenders. The benign prerogative of mercy reposed in him cannot be fettered\nby any legislative restrictions.\xe2\x80\x9d ). Thus, the question raised by your request is not\na matter of statutory interpretation, but instead entails consideration of the scope\nof the President\xe2\x80\x99s pardon authority under the Constitution.\nArticle II, section 2 of the Constitution authorizes the President \xe2\x80\x9c to grant\nReprieves and Pardons for Offenses against the United States, except in Cases\nof Impeachment\xe2\x80\x9d (the \xe2\x80\x9c Pardon Clause\xe2\x80\x9d ). In Ex Parte Garland, the Supreme\nCourt summarized the reach of a presidential pardon as follows:\nA pardon reaches both the punishment prescribed for the offence\nand the guilt of the offender; and when the pardon is full, it releases\nthe punishment and blots out of existence the guilt, so that in the\neye of the law the offender is as innocent as if he had never com\xc2\xad\nmitted the offence. If granted before conviction, it prevents . . .\nthe penalties and disabilities consequent upon conviction from\nattaching; if granted after conviction, it removes the penalties and\ndisabilities, and restores him to all his civil rights; it makes him,\nas it were, a new man, and gives him a new credit and capacity.\nGarland, 71 U.S. at 380-81. This broad interpretation of the effect of a pardon\nwas affirmed in Knote v. United States, 95 U.S. 149 (1877), in which the court\nstated:\n161\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nA pardon is an act of grace by which an offender is released from\nthe consequences of his offense, so far as such release is practicable\nand within control o f the pardoning power, or of officers under\nits direction. It releases the offender from all disabilities imposed\nby the offense, and restores to him all his civil rights. In contempla\xc2\xad\ntion of law, it so far blots out the offence, that afterwards it cannot\nbe imputed to him to prevent the assertion of his legal rights.\nId. at 153.\n\nA presidential pardon relieves the offender of all punishments, penalties, and\ndisabilities that flow directly from the conviction, provided that no rights have\nvested in a third party as a consequence of the judgment. In Boyd v. United States,\n142 U.S. 450 (1892), for example, the defense objected to the testimony of a\nwitness who had been convicted of larceny. In response, the prosecution presented\na full and unconditional pardon issued by President Harrison. The Court held that\nthe pardon restored the competency of the witness to testify. \xe2\x80\x9c The disability to\ntestify being a consequence, according to the principles of the common law, of\nthe judgment of conviction, the pardon obliterated that effect.\xe2\x80\x9d Id. at 453-54.\nThis conclusion is supported by the English common law from which the\nframers drew their understanding of the scope of the power being granted the\nChief Executive. The Pardon Clause of the Constitution was derived from the\npardon power held by the King of England at the adoption of the Constitution.\nAccordingly, the Supreme Court has repeatedly looked to English cases for guid\xc2\xad\nance in interpreting the effect of a pardon. See, e.g., Schick v. Reed, 419 U.S.\n256, 262-63 (1974); Ex Parte Wells, 59 U.S. (18 How.) 307, 310-11 (1855).\nAt common law it was well settled that a pardon by the king removed not only\nthe punishment that flowed from the offense, but also \xe2\x80\x9c all the legal disabilities\nconsequent on the crime.\xe2\x80\x9d 7 Matthew Bacon, A New Abridgment o f the Law 416\n(1852); see, e.g., Cuddington v. Wilkins, 80 Eng. Rep. 231, 232 (K.B. 1614)\n(\xe2\x80\x9c [T]he King\xe2\x80\x99s pardon doth not only clear the offence it self, but all the depend\xc2\xad\nencies, penalties, and disabilities incident unto it.\xe2\x80\x9d ).\nBased on the foregoing analysis, we believe that a deportation order authorized\nby \xc2\xa7 1251(a)(2) is a consequence of a conviction that is precluded by a full and\nunconditional presidential pardon. Section 1251(a)(2) does not render a person\ndeportable based on the conduct in which he or she engaged. Rather, this provision\nestablishes an additional penalty that attaches solely because of the conviction.\nThus, a person who engaged in the conduct prohibited by the relevant criminal\nstatutes but was never convicted of the crime would not be deportable on the\nbasis of this provision; the authority to deport hinges completely on the fact of\nconviction. Therefore, a presidential pardon would preclude the imposition of the\npenalty.\n162\n\n\x0cEffects o f a Presidential Pardon\n\nWe have considered the possible argument that deportation pursuant to\n\xc2\xa7 1251(a)(2) is not precluded by a pardon because the statute does not impose\na penalty or disability based on an offense but rather only implements a decision\nregarding conduct Congress has deemed inconsistent with the qualifications aliens\nmust have to remain in the country. Although in interpreting the pardon power\nthe Supreme Court has never expressly adopted a distinction between penalties\nthat a pardon can remove and qualifications that a pardon does not affect, the\nAttorneys General and lower courts have invoked it.\nFor example, in 1898, Attorney General Griggs was asked to consider the effect\nof a presidential pardon on the administration of a statute that prohibited the\nreenlistment of any soldier \xe2\x80\x98\xe2\x80\x9c whose service during his last preceding term of\nenlistment ha[d] not been honest and faithful.\xe2\x80\x99 \xe2\x80\x9d Army\xe2\x80\x94 Enlistment\xe2\x80\x94 Pardonk,\n22 Op. Att\xe2\x80\x99y Gen. 36, 37 (1898) (quoting Act of Aug. 1, 1894, ch. 179, \xc2\xa72,\n28 Stat. 215, 216). The soldier in question had been discharged after being con\xc2\xad\nvicted of desertion from military service. Subsequently, he was pardoned by the\nPresident and sought reenlistment. Because Congress may prescribe qualifications\nand conditions for military service, Attorney General Griggs sought to determine\nwhether the statute in question set such a qualification or attempted to impose\nadditional disabilities on the offender because of the conviction. He concluded\nthat application of the statute to a pardoned soldier was permissible because it\ndid not seek to prevent reenlistment because of the commission of a criminal\noffense. Rather, he found that the statute\xe2\x80\x99s prohibition related to \xe2\x80\x9c previous con\xc2\xad\nduct in service and affectfed] the personal rather than the criminal character of\nthe applicant.\xe2\x80\x9d Id. at 39. Where a statute \xe2\x80\x9c is properly to be regarded as a rule\nrelating to qualification^] for office,\xe2\x80\x9d a later opinion concluded, and \xe2\x80\x9c does not\nimpose a penalty as such on individual offenders . . . the incidental disabilities\nwhich they may suffer by reason of the statute are not removed by a pardon.\xe2\x80\x9d\n31 Op. Att\xe2\x80\x99y Gen. at 230; accord Effect of Pardon on Statute Making Persons\nConvicted o f Felonies Ineligible for Enlistment in the Army, 39 Op. Att\xe2\x80\x99y Gen.\n132 (1938). In contrast, \xe2\x80\x9c where a statute although purporting to prescribe quali\xc2\xad\nfications for office has no real relation to that end but is obviously intended to\ninflict punishment for a past act,\xe2\x80\x9d a presidential pardon will abate that punish\xc2\xad\nment. 31 Op. Att\xe2\x80\x99y Gen. at 229.1\n1 The decision o f the Supreme Court in Garland illustrates this distinction. In Garland\', at issue was an act o f\nCongress that attempted to exclude from the practice o f law all persons who had participated in the Rebellion.\nThe Court determined that this exclusion was a punishment for the offense of treason. In other words, the Court\nconcluded that, despite C ongress\'s attempt to present its Act as setting qualifications for a profession, it was actually\nan attempt to exact additional punishment for an offense. The Court held that the Act could not be applied to\nGarland because the President\xe2\x80\x99s pardon prohibited the plaintiff from being punished for the offense of treason.\nTo hold that he could be punished under this new law would subvert the President\xe2\x80\x99s clemency power. As the Court\nstated, \xe2\x80\x9c [i]f such exclusion can be effected by the exaction of an expurgatory oath covering the offense, the pardon\nmay be avoided, and that accomplished indirectly which cannot be reached by direct legislation. It is not within\nthe constitutional power o f Congress thus to inflict punishment beyond the reach o f executive c le m e n c y /\' Garland,\n71 U.S. at 381; see also United States v. Klein, 80 U.S. (13 Wall.) 128 (1871). Accordingly, any punishment Congress\nattempted to prescribe for guilt for the offense was not applicable to the plaintiff.\n\n163\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nProfessor Samuel Williston drew essentially the same distinction in an early\nand seminal article, reasoning that:\n[I]f the mere conviction involves certain disqualifications which\nwould not follow from the commission of the crime without convic\xc2\xad\ntion, the pardon removes such disqualifications. On the other hand,\nif character is a necessary qualification and the commission of [the]\ncrime would disqualify even though there had been no criminal\nprosecution for the crime, the fact that the criminal has been con\xc2\xad\nvicted and pardoned does not make him any more eligible.\nSamuel Williston, Does a Pardon Blot Out Guilt?, 28 Harv. L. Rev. 647, 653\n(1915). In recent decades, several federal courts of appeals have endorsed\nWilliston\xe2\x80\x99s view. See, e.g.. United States v. Noonan, 906 F.2d 952, 958-59 (3d\nCir. 1990); Bjerkan v. United States, 529 F.2d 125, 128 n.2 (7th Cir. 1975).\nIt is clear that deportation based on \xc2\xa7 1251(a)(2) operates solely on the basis\nof the conviction of crime and therefore falls within the type of consequence that\nis removed by a pardon under the Williston distinction. The provision creates\na \xe2\x80\x9c disqualificationf ] which would not follow from the commission of the crime\nwithout conviction.\xe2\x80\x9d 28 Harv. L. Rev. at 653. A person who engaged in the con\xc2\xad\nduct prohibited by the relevant criminal statutes but was never convicted of the\ncrime would not be deportable on the basis of this provision. Rather, \xc2\xa7 1251(a)(2)\nexcludes only those aliens who have been convicted. As such, its application to\na pardoned alien is impermissible.2\nB.\nYou have asked us to address specifically whether a pardon removes only the\nconsequences of a conviction or whether it also removes the consequences of an\noffense even where there has not yet been a conviction. Throughout the Nation\xe2\x80\x99s\nhistory, Presidents have asserted the power to issue pardons prior to conviction,\nand the consistent view of the Attorneys General has been that such pardons have\nas full an effect as pardons issued after conviction. See, e.g., Pardoning Power\no f the President, 6 Op. Att\xe2\x80\x99y Gen. 20 (1853); Pardons, 1 Op. Att\xe2\x80\x99y Gen. 341\n(1820). Indeed, in two of the best-known exercises of the pardon power (President\n2 It might also be argued that because deportation is not punishment, it is not precluded by a presidential pardon.\nThis argument has been suggested in dicta in tw o court opinions. Kwai Chiu Yuen v. INS, 406 F.2d 499 (9th Cir.)\ncert, denied , 395 U.S. 908 (1969); United States ex rel. Brazier v. Commissioner o f Immigration, 5 F.2d 162 (2d\nCir. 1924); In each instance, the court relied on the Supreme C ourt\'s statement in Mahler v. Eby, 264 U.S. 32,\n39 (1924), that deportation 4,is not punishment\xe2\x80\x9d for purposes o f the Ex Post Facto Clause o f the Constitution (art.\nI, \xc2\xa7 9 ), to suggest that a presidential pardon does not preclude deportation. Kwai Chiu Yuen, 406 F.2d at 502; Brazier,\n5 F.2d at 164. W e disagree with this argument because we believe that a presidential pardon removes all adverse\nconsequences o f conviction that can be view ed as punishments, penalties, or disabilities that attach by reason of\nthe conviction, regardless o f whether they are viewed as \xe2\x80\x9c punishm ent" for purposes of invoking other constitutional\nprovisions.\n\n164\n\n\x0cEffects o f a Presidential Pardon\n\nAndrew Johnson\xe2\x80\x99s offer of pardons to persons involved in secession but willing\nto take an oath of loyalty, and President Jimmy Carter\xe2\x80\x99s pardon of persons who\navoided military service during the Vietnam War), the vast majority of those par\xc2\xad\ndoned had not been convicted of any crime.\nThe language of the Court\xe2\x80\x99s opinion in Garland is instructive on this issue:\nA pardon reaches both the punishment prescribed for the offence\nand the guilt of the offender; and when the pardon is full, it releases\nthe punishment and blots out of existence the guilt [for the offense],\nso that in the eye of the law the offender is as innocent as if he\nhad never committed the offence.\nGarland, 71 U.S. at 380 (emphasis added). We understand this passage to mean\n\nthat a pardon removes or prevents the attachment of all consequences that are\nbased on guilt for the offense. In the great majority of cases, a pardon comes\nafter a conviction; thus, there has already been a finding of guilt in the criminal\njustice process. It is important to understand, however, that the pardon is for the\nguilt for an offense, not just the conviction of the offense. Thus, a pardon for\nan offense that is issued prior to a conviction has the same effect as one that\nis issued after a conviction. Any consequences that would have attached had there\nbeen a conviction are precluded.3\nThe foregoing analysis does not mean that a pardoned person cannot be held\naccountable for the conduct underlying the offense by a governmental entity\nseeking to determine suitability for a position of confidence or trust, adherence\nto a code of conduct, or eligibility for a benefit. In Garland the Court stated\nthat a pardon makes \xe2\x80\x9c the offender . . . as innocent as if he had never committed\nthe offense.\xe2\x80\x9d Id. (emphasis added). We do not interpret this to mean that the\npardon creates the fiction that the conduct never took place. Rather, a pardon\nrepresents the Executive\xe2\x80\x99s determination that the offender should not be penalized\nor punished for the offense. There may be instances where an individual\xe2\x80\x99s conduct\nconstitutes not only a federal offense, but also a violation of a separate code of\nconduct or ethics that the individual is obligated to comply with by virtue of\n3 Consequences that attach simply by reason o f an indictment for an offense generally are not precluded by a\npardon. Although the consequence is identified with reference to an offense, it generally is not based on guilt for\nthe offense. For example, in In re North, 62 F.3d 1434 (D.C. Cir. 1994), the court considered the application to\na pardoned individual o f the provision o f the Independent Counsel Act, 28 U.S.C. \xc2\xa7\xc2\xa7591-599, that authorizes the\npayment o f attorneys\xe2\x80\x99 fees to any person who is investigated by an Independent Counsel, see 28 U.S.C. \xc2\xa7 593(f)(1).\nThe petitioner claimed that, by virtue o f a presidential pardon, he was entitled to be reimbursed for attorneys\xe2\x80\x99 fees\nsince those fees would have been paid by the government had he not been indicted for the offense. In concluding\nthat the pardon did not restore his right to attorneys\xe2\x80\x99 fees, the court relied on the rule enunciated in Knote, 95\nU.S. at 154: the President\xe2\x80\x99s exercise o f the pardon power is subject to the constitutional requirement that money\nmay not be withdrawn from the Treasury in the absence o f a congressional appropriation. The court could also\nhave reached the same conclusion by the reasoning we suggest here. The petitioner would not have been entitled\nto reimbursement o f his attorneys\xe2\x80\x99 fees even if he had been found not guilty o f the offense at trial. The pardon,\ntherefore, had no effect on his entitlement to payment o f attorneys\xe2\x80\x99 fees because the refusal to pay attorneys\xe2\x80\x99 fees\nwas not a consequence o f his guilt for the offense.\n\n165\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nhis or her professional license. Discipline associated with the breach of the condi\xc2\xad\ntions of a professional license, where the disciplinary action is not triggered merely\nby the fact of commission or conviction of a federal offense, generally would\nnot be barred by a pardon.\nFor example, an attorney charged with a criminal offense for which he or she\nis later pardoned by the President would be relieved of all consequences that\nattached solely by reason of his commission of the offense. However, the pardon\nwould not necessarily prevent a local or state bar from disciplining the attorney,\nif it independently determined that the underlying conduct, or some portion of\nit, violated one of its canons of ethics. In those instances, the bar would not have\nbased its decision to disbar or sanction the attorney on the fact that the attorney\nhad violated the criminal laws of the United States, but rather would have con\xc2\xad\nducted an inquiry into the conduct and determined that an ethical violation had\noccurred. Several state courts have taken this approach when considering the effect\nof a gubernatorial pardon on state disbarment proceedings. See e.g., In re Bozarth,\n63 P.2d 726 (Okla. 1936); In re Lavine, 41 P.2d. 161 (Cal. 1935); Nelson v.\nCommonwealth, 109 S.W. 337 (Ky. 1908).\nII.\nYour second question requires us to determine whether a full and unconditional\npardon removes firearms disabilities imposed by a state as a result of a conviction\nof a federal crime. The materials submitted with your opinion request suggest\nthat the typical disability statute makes it an offense for a person convicted of\na state or federal offense to own, possess, or have custody or control of a firearm.5\nSee Office of the Pardon Att\xe2\x80\x99y, U.S. Dept, of Justice, Civil Disabilities of Con\xc2\xad\nvicted Felons: A State-By-State Survey (1992).\nOur conclusion in section I that a presidential pardon removes all punishments,\npenalties, and disabilities that attach solely by reason of a federal offense nec\xc2\xad\nessarily requires the conclusion that a pardon removes state firearms disabilities\nbased solely on a federal offense, so long as we can answer affirmatively the\nquestion whether the President\xe2\x80\x99s pardon power extends beyond federal con\xc2\xad\nsequences to include consequences imposed by a state. This question was\naddressed by the Supreme Court in Carlesi v. New York, 233 U.S. 51 (1914).\nIn Carlesi, the Court was asked to determine whether the fact that the plaintiff\nhad received a presidential pardon for a federal offense prevented a state from\ntreating the plaintiff as a \xe2\x80\x9c second offender\xe2\x80\x9d for the purposes of punishment for\na subsequent state offense. Writing for a unanimous Court, Chief Justice White\nstated:\n5 For exam ple, a C olorado statute provides that any person convicted under the laws o f a state, or o f the United\nStates, o f certain crimes within the past ten years or within ten years o f release from confinement, may not possess,\nuse or carry on his person a firearm or o th er weapon prohibited by the firearms laws. Colo. Rev. Stat. Ann. \xc2\xa7 1812-108.\n\n166\n\n\x0cEffects o f a Presidential Pardon\n\nIt may not be questioned that the States are without right directly\nor indirectly to restrict the National Government in the execution\nof its legitimate powers. It is therefore to be conceded that if the\nact of the State in taking into consideration a prior conviction of\nan offense committed by the same offender against the laws of the\nUnited States despite a pardon was in any just sense a punishment\nfor such prior crime, that the act of the State would be void because\ndestroying or circumscribing the effect of the pardon granted under\nthe Constitution and [the] laws of the United States.\nId. at 57. Ultimately, the Court concluded that the state was not seeking to impose\n\nadditional punishment for the pardoned offense, but rather had made the conduct\nunderlying that offense an aggravating circumstance for purposes of determining\nthe punishment for the second offense. See id. at 59. However, it is clear from\nthe above-quoted passage that if the Court had determined that the state was\nattempting to punish or penalize the offender for the pardoned offense, the state\xe2\x80\x99s\naction would have been a violation of the Constitution. At least one federal court\nof appeals has expressly adopted this position. In Bjerkan, the Seventh Circuit,\nrelying on the Court\xe2\x80\x99s dicta in Carlesi, held that \xe2\x80\x9c a presidential pardon restores\nstate as well as federal civil rights.\xe2\x80\x9d 529 F.2d at 129. The court stated that once\na federal offense has been pardoned, any \xe2\x80\x9c attempted punishment [by a state]\nwould constitute a restriction on the legitimate, constitutional power of the Presi\xc2\xad\ndent to pardon an offense against the United States and would be void as circum\xc2\xad\nscribing and nullifying that power.\xe2\x80\x9d Id. at 128.\nThe conclusion that a presidential pardon relieves a federal offender of state\nfirearms disabilities that attach solely by reason of a federal conviction is sup\xc2\xad\nported by federal supremacy principles based on the Supremacy Clause of the\nConstitution. U.S. Const, art. VI, cl. 2. The Pardon Clause gives the President\nexclusive jurisdiction in the issuance of pardons and reprieves for offenses against\nthe United States. See Schick, 419 U.S. at 266-67. Accordingly, the Supreme\nCourt has held repeatedly that Congress may not act in any manner that would\nlimit the full legal effect of a presidential pardon. See, e.g., Klein, 80 U.S. at\n148; Garland, 71 U.S. at 380. The same conclusion is required with respect to\nacts of a state that would limit or destroy the effect of a presidential pardon.\nWhen the President issues a pardon pursuant to this constitutional authorization,\nthe pardon preempts any inconsistent state laws, regulations, or actions. In its\nsphere\xe2\x80\x94 offenses against the United States\xe2\x80\x94 the President\xe2\x80\x99s pardon power \xe2\x80\x9c must\nbe supreme. It cannot be hindered by the operation of the subordinate govern\xc2\xad\nments. The pardon power would be ineffective if it could only restore a convict\xe2\x80\x99s\nfederal civil rights.\xe2\x80\x9d Bjerkan, 526 F.2d at 129; see also Harbert v. Deukmejian,\n167\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\n173 Cal. Rptr. 89 (Cal. Ct. App. 1981) (state firearm disability does not apply\nto a person who has received a full and unconditional presidential pardon).5\nIII.\nYour third question concerns whether a full and unconditional presidential\npardon extends to the remission of restitution ordered by a court pursuant to 18\nU.S.C. \xc2\xa73551(b)-(c) as a \xe2\x80\x9c sanction\xe2\x80\x9d authorized in addition to imprisonment,\nprobation, or a fine.6 This question, to our knowledge, has not been decided by\nany court, but we conclude, based upon existing precedent, that a pardon does\nreach such restitution where the victim has not yet received the restitution award,\nprovided the pardon does not contain an express limitation to the contrary.7\nAlthough a pardon is a full forgiveness of punishment, there is a limitation\non this power. As the Supreme Court explained in Osborn v. United States, 91\nU.S. 474, A ll (1875):\nIf in the proceedings to establish [the offender\xe2\x80\x99s] culpability and\nenforce the penalty, and before the grant of the pardon, the rights\nof others than the government have vested, those rights cannot be\nimpaired by the pardon. The government having parted with its\npower over such rights, they necessarily remain as they existed pre\xc2\xad\nviously to the grant of the pardon. The government can only release\nwhat it holds.\nSee also Knote, 95 U.S. at 153-55; Garland, 71 U.S. at 381; cf. Hodges v. Snyder,\n\n261 U.S. 600, 603 (1923) (holding that the private rights of a party that have\nbeen vested by the judgment o f a court cannot be taken away by subsequent legis\xc2\xad\nlation); Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421,\n431 (1855) (same). Thus, whether the restitution order is remitted by the pardon\ndepends on whether the order creates a vested right for the victim.\n5 An 1856 opinion o f Attorney General Cushing concludes that a presidential pardon does not extend to legal\nor political disabilities imposed by one o f the states. Pardons, 7 Op. A tt\xe2\x80\x99y Gen. 760 (1856). However, we decline\nto follow that opinion because we disagree with the approach it takes on a number o f issues. First o f all, without\nany discussion o f the scope o f the pardon power, the opinion simply accepts the petitioner\xe2\x80\x99s assumption that a\npresidential pardon does not by itself rem ove a disability imposed by a state on the basis o f a federal conviction.\nMore fundamentally, the opinion is inconsistent with the subsequent Supreme Court opinion in Carlesi, modem\nconcepts o f federalism, and our analysis o f th e effect o f a presidential pardon.\n6 Subsections (b) and (c) o f \xc2\xa73551 perm it a \xe2\x80\x9c [s]anction authorized by [18 U.S.C. \xc2\xa7} 3556.\xe2\x80\x9d Section 3556, in\nturn, permits a sentence requiring \xe2\x80\x9c the defendant [to] make restitution to any victim o f the offense in accordance\nw ith the provisions o f . . . [18 U.S.C. \xc2\xa7\xc2\xa7] 3663 and 3664.\xe2\x80\x9d The latter sections impose an elaborate set o f procedural\nand substantive requirements upon the sentencing court concerning the imposition o f restitution. Thus, 18 U.S.C.\n\xc2\xa7 3551(b)-(c) effectively incorporate by reference the requirements of 18 U.S.C. \xc2\xa7\xc2\xa7 3663 and 3664.\n7 Clearly, the President may grant a pardon on the condition that the offender pay any court-ordered restitution\nimposed before the pardon was issued. H ow ever, the President must expressly state any limitation or condition that\nhe wishes to im pose because a pardon is presum ed to reach all punishment resulting from an offense. Indeed, even\nwhen a limitation is expressly stated, any ambiguity must be construed in favor of the beneficiary o f the pardon.\nSee Knote, 95 U.S. at 151.\n\n168\n\n\x0cEffects o f a Presidential Pardon\n\nA vested right is one the conferral of which is complete and consummated.\nSee, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 162 (1803). With respect\n\nto rights affected by a presidential pardon, the Court has stated:\nWhere . . . property condemned, or its proceeds, have not . . .\nvested, but remain under control of the Executive, or of officers\nsubject to his orders, or are in the custody of the judicial tribunals,\nthe property will be restored or its proceeds delivered to the original\nowner, upon his full pardon. The property and the proceeds are\nnot considered as so absolutely vesting in third parties or in the\nUnited States as to be unaffected by the pardon until they have\npassed out of the jurisdiction of the officer or tribunal. The proceeds\nhave thus [vested] when paid over to the individual entitled to them,\nin the one case, or are covered into the treasury, in the other.\nKnote, 95 U.S. at 154. Thus, we do not believe that restitution orders issued pursu\xc2\xad\n\nant to 18 U.S.C. \xc2\xa7 3551 (b)-(c) create vested rights in victims until the victims\nactually receive the award. Prior to that time, the victim does not exercise the\ncomplete control over the property required for a right to be vested.\nAlthough 18 U.S.C. \xc2\xa7 3663(h) provides victims with civil remedies to collect\nrestitution, it does not make restitution a civil judgment that a court may not\nrevoke. To the contrary, a restitution order results from a criminal proceeding\nthat adjudicates guilt and it is issued as part of the offender\xe2\x80\x99s sentence. Its char\xc2\xad\nacter is undeniably penal rather than compensatory. As the Court reasoned in Kelly\nv. Robinson, 479 U.S. 36 (1986):\nAlthough restitution does resemble a judgment \xe2\x80\x9c for the benefit of\xe2\x80\x9d\nthe victim, the context in which it is imposed undermines that\nconclusion. The victim has no control over the amount of restitution\nawarded or over the decision to award restitution. Moreover, the\ndecision to impose restitution generally does not turn on the vic\xc2\xad\ntim\xe2\x80\x99s injury, but on the penal goals of the State and the situation\nof the defendant.\nId. at 52. Thus, the Eleventh Circuit has held that a victim does not have Article\nIII standing to challenge the revocation of a restitution order. United States v.\nJohnson, 983 F.2d 216 (11th Cir. 1993). Other courts have relied on similar rea\xc2\xad\n\nsoning to deny alleged victims standing to challenge the terms of a restitution\norder under both the Constitution and 18 U.S.C. \xc2\xa7\xc2\xa73663-3664. See United States\nv. Kelley, 997 F.2d 806 (10th Cir. 1993); United States v. Grundhoefer, 916 F.2d\n788 (2d Cir. 1990).\nBased on these decisions, it is clear that a victim does not have complete control\nover a restitution award prior to receiving it. Rather, he or she is allowed to collect\n169\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nonly pursuant to the terms set forth by the court. Thus, no rights or interests\nvest in the victim upon the issuance of a restitution order. Because a pardon elimi\xc2\xad\nnates all penalties that do not create vested rights in a third party, we conclude\nthat a full and unconditional presidential pardon has the effect of remitting courtordered criminal restitution that has not yet been received by the victim.\nOf course, as should already be clear from the foregoing discussion, the pardon\ncannot remit a restitution award that the victim has received. Once the victim\ntakes possession, the Executive no longer has control over the award. As the Court\nstated in Knote, \xe2\x80\x9c if the proceeds of the sale have been paid to a party to whom\nthe law has assigned them, they cannot be subsequently reached and recovered\nby the offender. The rights of the parties have become vested, and are as complete\nas if they were acquired in any other legal way.\xe2\x80\x9d 95 U.S. at 154. Therefore,\nany restitution awards that have been received by the victim prior to the granting\nof the pardon are not recoverable by the offender.\nIV.\nFor the foregoing reasons, we conclude that a full and unconditional pardon\nprecludes the exercise of the authority to deport a person pursuant to 8 U.S.C.\n\xc2\xa7 1251(a)(2), removes firearms disabilities imposed by a state solely by reason\nof a federal conviction, and remits restitution awarded pursuant to 18 U.S.C.\n\xc2\xa73551(b)-(c) where the victim has not yet received the award. We note, however,\nthat the President can leave undisturbed any of these consequences by expressly\nstating that their continued existence is a condition of the pardon.\nWALTER DELLINGER\nAssistant Attorney General\nOffice of Legal Counsel\n\n170\n\n\x0c'