b'Constitutionality of State-Imposed Restrictions on Responses\nto Census Questions\nT h e S u p re m acy C lause o f th e C o n stitu tio n b ars a sta te from im posing restrictio n s on its\nresid en ts\xe2\x80\x99 responses to q u estio n s c o n ta in e d in cen su s form .\nS p ecific lim ited g ran t o f p o w e r in th e C o n stitu tio n d o es not p re c lu d e C o n g ress from\ne n a c tin g b ro a d e r cen su s legislation u n d e r th e N e ce ssa ry and P ro p e r C lause.\nS ta tu to ry d eleg atio n to th e S e c re ta ry o f C o m m e rc e an d D ire c to r o f th e B ureau o f C ensus\nis not excessive, c o n sid e rin g lo n g h isto ry o f cen su s legislation and p ractice, and census\nfo rm s are w ith in th at deleg atio n .\n\nFebruary 22, 1980\nM E M O R A N D U M O P IN IO N FO R T H E G E N E R A L C O U N SEL,\nD E PA R T M EN T O F COM M ERCE\nThis responds to the letter o f the Legal Adviser, Bureau of the\nCensus, seeking the opinion o f this Office on the constitutionality o f a\nbill introduced into the Senate o f the State o f Arizona that would limit\ncensus responses by residents o f A rizona to their name, address, and\nage. It is our conclusion that such legislation, if enacted, would be\nunconstitutional under the Suprem acy Clause o f the Constitution (Art.\nVI, cl. 2) to the extent that it would purport to excuse residents of\nArizona from answering questions in the census form that are author\xc2\xad\nized by federal law.\nT he prim ary authority for the census form for the 1980 census is 13\nU.S.C. 141(a), pursuant to which:\nT he Secretary [of Com merce] shall, in the year 1980 and\nevery 10 years thereafter, take a decennial census o f popu\xc2\xad\nlation as o f the first day o f A pril o f such year, which date\nshall be known as the \xe2\x80\x9cdecennial census date,\xe2\x80\x9d in such\nform and content as he may determ ine, including the use\no f sampling procedures and special surveys. In connection\nwith any such census, the Secretary is authorized to\nobtain such other census inform ation as necessary.\nSection 141(g) defines the term \xe2\x80\x9ccensus o f population\xe2\x80\x9d as a \xe2\x80\x9ccensus o f\npopulation, housing, and m atters relating to population and housing.\xe2\x80\x9d\n13 U.S.C. \xc2\xa7 141(g). Section 5 o f title 13 gives the Secretary o f Com \xc2\xad\n\n416\n\n\x0cmerce general implementing authority,1 and the Joint Resolution o f\nJune 16, 1976, 90 Stat. 688, imposes on the Secretary o f Com m erce\nspecial obligations to collect and publish statistics indicating the condi\xc2\xad\ntions o f Americans o f Spanish origin or descent and to develop credit\xc2\xad\nable estimates o f undercounting o f Am ericans of Spanish origin or\ndescent in future censuses.\nUnder A rticle VI, clause 2 o f the Constitution, state laws must yield\nto federal laws and regulations if these federal authorities are made \xe2\x80\x9cin\npursuance\xe2\x80\x9d o f the Constitution. T he sponsors o f the A rizona legislation\nseem to suggest that the census legislation conflicts with the C onstitu\xc2\xad\ntion o f the United States because A rticle I, \xc2\xa7 2, clause 3 o f the C onstitu\xc2\xad\ntion provides only for the enum eration o f the population, and, hence,\nthat the Constitution does not permit the inclusion in the census o f any\nadditional questions. T he notion that a specific limited grant in the\nConstitution precludes Congress from enacting broader statutes under\nother powers granted to it in the C onstitution was rejected by the\nSupreme C ourt m ore than a century ago w ith specific reference to the\ncensus legislation. In the Legal Tender Cases, 79 U.S. (12 W all.) 457,\n536 (1871), which involved the constitutionality o f the statutes making\npaper money legal tender, the argum ent was made that because the\nConstitution specifically authorized Congress to coin money and regu\xc2\xad\nlate its value (Art. I, \xc2\xa7 8, cl. 5), Congress did not have any other\npowers in the m onetary field. T he C ourt held that under the Necessary\nand Proper Clause (Art. I, \xc2\xa7 8, cl. 18) Congress could enact legislation\nin aid o f one or m ore express pow ers \xe2\x80\x9ceven if there is another express\npow er given relating in part to the same subject but less extensive.\xe2\x80\x9d As\nan example for this proposition, the C ourt stated:\nT he Constitution orders an enum eration o f free persons in\nthe different States every ten years. T he direction extends\nno further. Yet Congress has repeatedly directed an enu\xc2\xad\nmeration not only o f free persons in the States but o f free\npersons in the Territories, and not only an enum eration o f\npersons but the collection o f statistics respecting age, sex,\nand production. W ho questions the pow er to do this?\n12 Wall, at 536.\nW hile this approval o f the broad scope o f census questions in the\nL egal Tender Cases was in the nature o f dictum , the C ircuit C ourt for\nthe Southern D istrict o f N ew York in United States v. Moriarity, 106 F.\n886, 891-92 (1901) discussed the pertinent constitutional considerations\n1 This section provides:\nT h e Secretary (of C om m erce] shall prepare schedules, and shall determ ine the inquir\xc2\xad\nies, and the number, form, and subdivisions thereof, fo r th e statistics, surveys, and\ncensuses provided for in this title.\nA ug. 31. 1954, ch. 1158, \xc2\xa7 5 , 68 Stat. 1013.\n\n417\n\n\x0cat length, and little can be added to this classic analysis. T he court\nstated:\nRespecting the suggestion that the pow er o f congress is\nlimited to a census o f the population, it should be noticed\nthat at stated periods congress is directed to make an\napportionm ent, and to take a census to furnish the neces\xc2\xad\nsary information therefor, and that certain representation\nand taxation shall be related to that census. This does not\nprohibit the gathering o f other statistics, if \xe2\x80\x9cnecessary and\nproper,\xe2\x80\x9d for the intelligent exercise o f other pow ers enu\xc2\xad\nm erated in the constitution, and in such case there could\nbe no objection to acquiring this information through the\nsame m achinery by w hich the population is enum erated,\nespecially as such course w ould favor econom y as well as\nthe convenience o f the governm ent and the citizens. . . .\nIt would be curious governm ental debility that should\nincapacitate the nation from directing its census enum era\xc2\xad\nto r to ask an inhabitant concerning his business because\nfor certain purposes he was only to be counted, and\nperhaps his gender ascertained. T he functions vested in\nthe national governm ent authorize the obtainm ent o f the\ninformation dem anded by section 7 o f the census act, and\nthe exercise o f the right befits an exalted and progressive\nsovereign power, enacting laws adapted to the needs of\nthe vast and varied interests o f the people, after acquiring\ndetailed know ledge thereof. . . . F or the national govern\xc2\xad\nment to know something, if not everything, beyond the\nfact that the population o f each state reaches a certain\nlimit, is apparent, w hen it is considered w hat is the de\xc2\xad\npendence o f this population upon the intelligent action of\nthe general governm ent. Sanitation, immigration, natural\xc2\xad\nization, the opening and developm ent o f the public\ndomain; the laying o f taxes, duties, imposts, and excises,\ninvolving the adjustm ent o f duties for the purposes of\nrevenue to the dom estic products o f every kind, and the\ntaxation o f industries, . . . for these and similar purposes\nthe governm ent needs each item o f information demanded\nby the census act, and such information, w hen obtained,\nrequires the most careful study, to the end that the fulfill\xc2\xad\nment o f the governm ental function may be wise and\nuseful. . . . A governm ent whose successful maintenance\ndepends upon the education o f its citizens may not blindly\nlegislate, but may exercise the right to proclaim its com \xc2\xad\nmands, after careful and full know ledge o f the business\n\n418\n\n\x0clife o f its inhabitants, in all its intricacies and activities.\nThe dem urrer should be overruled.\nIn United States v. Rickenbacker, 309 F.2d 462, 463 (2d Cir. 1962),\ncert, denied, 371 U.S. 962 (1963), also a case involving the validity of\nthe questions contained in the census form, the court, per then Circuit\nJudge Thurgood Marshall, held:\nT he authority to gather reliable statistical data reason\xc2\xad\nably related to governmental purposes and functions is a\nnecessity if modern governm ent is to legislate intelligently\nand effectively. United States v. Moriarity, 106 F. 886,\n891-92 (C.C.S.D.N.Y. 1901). Cf. United States v. Sharrow,\n309 F.2d 77 (2d Cir. 1962). The questions contained in the\nhousehold questionnaire related to im portant federal con\xc2\xad\ncerns, such as housing, labor, and health, and w ere not\nunduly broad or sweeping in their scope.\nThe Supreme Court, in Wyman v. James, 400 U.S. 309, 321 (1971),\nreferred with approval to the holding in Rickenbacker concerning the\nscope o f the census questions.\nN or can it be said that 13 U.S.C. \xc2\xa7\xc2\xa7 5 and 141(a) contain excessive\ndelegations o f statutory power, or that the census form, as prom ul\xc2\xad\ngated, goes beyond the scope o f the delegation. It is true that the\ndelegations contained in 13 U.S.C. \xc2\xa7 5 and in the last sentence o f 13\nU.S.C. \xc2\xa7 141(a) are broad. It should be remembered, how ever, that\nthese statutes involve an area in which Congress has legislated since\n1790, and which legislation and practice have crystallized into wellknown standards that guide the discretion o f the Secretary o f Com \xc2\xad\nmerce and the D irector o f the Bureau o f the Census. Fahey Mallonee,\n332 U.S. 245, 250 (1947); see Yakus v. United States 321 U.S. 414, 42425 (1944). Hence the district court properly held in United States v.\nLittle, 321 F. Supp. 388, 391 (D.Del. 1971):\nCongress has in 13 U.S.C. \xc2\xa7\xc2\xa75 and 141(a) described the\njob to be done by the Secretary o f Com m erce and delin\xc2\xad\neated the scope o f his authority, viz. to \xe2\x80\x9ctake a census of\npopulation unemployment, and housing (including utilities\nand equipment).\xe2\x80\x9d 2 T he fact that there is a zone for the\nexercise o f discretion by the Secretary in framing the\nquestions which will elicit the necessary statistical infor\xc2\xad\nmation within the scope o f the census to be undertaken\ndoes not render the delegation invalid. Yakus v. United\nStates, 321 U.S. 414, 42 4 ^2 5 , 64 S. Ct. 660, 88 L. Ed. 834\n(1944). F urther, in the absence o f a clear showing (which\nhas not been made in this case) that the Secretary\xe2\x80\x99s\n2 This quotation is based on the language o f 13 U.S.C. \xc2\xa7 141(a) prior to its 1976 am endm ent.\n\n419\n\n\x0cexercise o f discretion was irrational, arbitrary or capri\xc2\xad\ncious, his actions will not be disturbed.\nW e have examined the 1980 census form. T he questions asked appear\nto be either within the scope o f the information traditionally asked in\ncensus forms or within the mandate o f the Joint Resolution o f June 16,\n1976. It is therefore our conclusion that 13 U.S.C. \xc2\xa7\xc2\xa75 and 141(a), as\nimplemented by the 1980 census form, are valid laws o f the United\nStates made in pursuance o f the Constitution. M oreover, in view of the\nstatistical nature o f census operations, it is im perative that the census\nquestionnaire be answ ered uniformly throughout the United States.\nState legislation that purports to excuse the inhabitants o f a state from\nhaving to answ er some o f the questions contained in the census forms\nwould constitute \xe2\x80\x9can obstacle to the accom plishm ent and execution of\nthe full purposes and objectives o f Congress.\xe2\x80\x9d Accordingly, the state\nlegislation must give way to the federal law. Hines v. Davidowitz, 312\nU.S. 52, 67 (1941); Jones v. R ath Packing, 430 U.S. 519, 526 (1977).\nL arry A. H am m ond\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n420\n\n\x0c'


b'The Constitutionality of Cooperative International Law\nEnforcement Activities Under the Emoluments Clause\nThe Emolum ents Clause o f the Constitution does not bar a proposed cooperative maritime counter\xc2\xad\nnarcotics operation, because the foreign naval personnel assisting U.S. law enforcement personnel\nwould not hold an \xe2\x80\x9c Office of Profit or Trust\xe2\x80\x9d under the United States.\n\nOctober 7, 1996\nM e m o r a n d u m O p in io n f o r t h e D e p u t y A s s i s t a n t A t t o r n e y G e n e r a l\nC r im in a l D iv is io n\n\nThis memorandum responds to your request for our advice on certain legal\nissues raised by proposed bilateral executive agreements providing for cooperative\nmaritime counterdrug enforcement activities in the Caribbean. In particular, you\nhave asked whether the agreements would be impermissible under the Emoluments\nClause, Article I, Section 9, Clause 8 of the Constitution, and this opinion is con\xc2\xad\nfined to that question.\nI.\n\nYou have explained that the United States has had discussions with several\nEuropean countries with interests in the Caribbean about possible executive agree\xc2\xad\nments addressing maritime counterdrug enforcement activities in that region. You\nhave further explained the general structure of the proposed cooperative\n\xe2\x80\x9c shiprider\xe2\x80\x9d program that would be established under the terms of the agreements:\nEach of the proposed agreements would have reciprocal provisions,\nunder which, pursuant to standing or ad hoc permission, duly au\xc2\xad\nthorized state vessels of each party would be able to enter the terri\xc2\xad\ntorial sea of the other to take drug law enforcement action against\nvessels not flying the flag of the coastal state, and against the per\xc2\xad\nsons on board them. Such law enforcement action could include\nenforcement of the coastal state\xe2\x80\x99s laws, (e.g., by seizing the vessel\nand apprehending the persons, for subsequent turnover to the coast\xc2\xad\nal state\xe2\x80\x99s enforcement authorities) or enforcement of the seizing\nstate\xe2\x80\x99s laws (in which case the vessel and persons would be taken\nout of the coastal state\xe2\x80\x99s territorial of sea for prosecution in a terri\xc2\xad\ntory of the seizing state).1\n1 M emorandum for Richard Shiffrin, Deputy Assistant A ttorney G eneral, Office of Legal Counsel, from Mark\nM. Richard, Deputy Assistant Attorney G eneral, Criminal Division, Re: Request for Office o f Legal Counsel Views\non Proposed Reciprocal Maritime Counterdrug Agreements at 1 (May 31, 1996) ( \xe2\x80\x9c Criminal Division Submission\xe2\x80\x9d ).\n\n346\n\n\x0cThe Constitutionality o f Cooperative International Law Enforcement Activities Under the Emoluments\nClause\n\nAs an example, you have provided the text of a draft agreement between the\nUnited States and the United Kingdom (acting on behalf of Bermuda, the British\nVirgin Islands, and other islands) concerning maritime counterdrug operations in\nthe Caribbean (\xe2\x80\x9c U.S.-U.K. Draft Agreement\xe2\x80\x9d or \xe2\x80\x9c Agreement\xe2\x80\x9d ).2 The Agreement\nprovides that the parties \xe2\x80\x9c shall continue to cooperate in combatting illicit maritime\ndrug traffic to the fullest extent possible.\xe2\x80\x9d 3 To that end, the parties agree to estab\xc2\xad\nlish a joint law enforcement \xe2\x80\x9c shiprider\xe2\x80\x9d program. In relevant part, the Agreement\nprovides that the U.S. government may designate qualified Coast Guard officials\nto act as shipriders who may:\na. embark on British law enforcement vessels;\nb. authorize the pursuit, by the British law enforcement vessels on\nwhich they are embarked, of suspect vessels and aircraft fleeing\ninto United States waters;\nc. authorize the British law enforcement vessels on which they are\nembarked to conduct counter-drug patrols in United States waters;\nd. enforce the laws of the United States in United States waters,\nor seaward therefrom, in the exercise of the right of hot pursuit\nor otherwise in accordance with international law; and\ne. authorize the British law enforcement vessels on which they are\nembarked to assist in the enforcement of the laws of the United\nStates seaward of the territorial sea of Anguilla, Bermuda, the Cay\xc2\xad\nman Islands, Montserrat, and Turks and Caicos.4\nThe Agreement further provides that crew members of the British law enforce\xc2\xad\nment vessel may assist in the search and seizure of property, detention of a person,\nand use of force pursuant to the Agreement if expressly requested to do so by\nthe U.S. shiprider.\nThe provisions of the U.S.-U.K. Agreement are fully reciprocal; identical or\nequivalent terms apply to create a shiprider program for the United Kingdom.\nCongress has expressly authorized the President to enter into reciprocal maritime\nagreements with other countries in order to promote international cooperation to\ncurtail drug traffic. See International Narcotics Control Act of 1992, Pub. L. No.\n102-583, 106 Stat. 4914.\n2 Agreement Between the Government o f the United States o f America and the Government o f the Kingdom o f\nthe United Kingdom o f Great Britain and Northern Ireland on behalf o f the Governments o f Anguilla, Bermuda,\nthe British Virgin Islands, the Cayman Islands, Montserrat, and the Turks and Caicos Islands, Concerning Maritime\nCounter-Drug Operations in the Western Atlantic and Caribbean Areas (Attachment A to Criminal Division Submis\xc2\xad\nsion).\n3 U.S.-U.K. Draft Agreement, article I.\n4 U.S.-U.K. Draft Agreement, article 6.\n\n347\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nII.\n\nThe Emoluments Clause, U.S. Const, art. 1, \xc2\xa79, cl. 8, provides:\nNo Title of Nobility shall be granted by the United States: And\nno Person holding any Office of Profit or Trust under them, shall,\nwithout the Consent of the Congress accept of any present, Emolu\xc2\xad\nment, Office, or Title, of any kind whatever, from any King, Prince,\nor foreign State.\nThe Emoluments Clause was intended to protect foreign ministers, ambassadors,\nand other officers of the United States from undue influence and corruption by\nforeign governments. Governor Randolph explained the purposes underlying Arti\xc2\xad\ncle 1, Section 9, Clause 8 in the Virginia Ratification Convention. He stated that\nit had been prompted by the gift of a snuff box by the King of France to Benjamin\nFranklin, then Ambassador to France. It therefore \xe2\x80\x9c was thought proper, in order\nto exclude corruption and foreign influence, to prohibit any one in office from\nreceiving or holding any emoluments from foreign states.\xe2\x80\x9d 5\nWe understand that the question has arisen whether the U.S.-U.K. shiprider pro\xc2\xad\ngram violates the Emoluments Clause by authorizing U.K. naval personnel, under\ninstruction of the U.S. shiprider, to enforce U.S. law \xe2\x80\x9c seaward of the territorial\nsea of Anguilla, Bermuda, the Cayman Islands, Montserrat, and Turks and\nCaicos.\xe2\x80\x9d 6 According to the Criminal Division Submission, see id. at 1-2, the\nconcern regarding the Emoluments Clause stems at least in part from a prior opin\xc2\xad\nion of this Office that concluded that the Clause prevented foreign government\npersonnel\xe2\x80\x94 who receive pay from their own government \xe2\x80\x94 from being designated\nU.S. federal law enforcement agents.7\nWe conclude that the U.K. naval personnel assisting U.S. law enforcement per\xc2\xad\nsonnel under the shiprider program do not hold an \xe2\x80\x9c Office of Profit or Trust\nunder [the United States]\xe2\x80\x9d within the meaning of the Emoluments Clause, and,\nthus, the Emoluments Clause presents no bar to the cooperative maritime\ncounterdrug operations as outlined in the Criminal Division Submission and the\nU.S.-U.K. Draft Agreement. The U.K. naval personnel owe no duty of loyalty\nto the United States that would be compromised by payment from the British\nRoyal Navy. Rather, they are, at all times, operating as members of the Royal\nNavy, owing their duty to the Royal Navy, and participating in a cooperative\nendeavor with the United States pursuant to the terms of an agreement executed\nby their own government. If British personnel enforce U.S. law, it is merely deriv\xc2\xad\native of their duty to obey the dictates of the government of the United Kingdom.\n5 3 The Records o f the Federal Convention o f 1787, at 327 (Max Farrand, ed., rev. ed. 1966) ( \xe2\x80\x9c Farrand\xe2\x80\x9d ).\n6 U.S.-U.K. Draft A greem ent, article 6.\n7 See Authority o f Foreign Law Enforcement Agents to Carry Weapons in the United States, 12 Op. O.L.C. 67\n(1988) ( \xe2\x80\x9c 1988 O pinion\xe2\x80\x9d ).\n\n348\n\n\x0cThe Constitutionality o f Cooperative International Law Enforcement Activities Under the Emoluments\nClause\n\nSimply put, British pay could not undermine the \xe2\x80\x9c undivided loyalty\xe2\x80\x9d 8 of the\nBritish naval personnel to the United States because their ultimate loyalty is to\nBritain, not the United States.\nThe Criminal Division Submission cites the 1988 Opinion of this Office, in\nwhich we concluded that \xe2\x80\x9c the Emoluments Clause precludes the designation of\nforeign agents to enforce federal law in the absence of congressional consent.\xe2\x80\x9d 9\nThe 1988 Opinion concluded that \xe2\x80\x9c [a]s a matter of general principle, anyone exer\xc2\xad\ncising law enforcement powers on behalf of the United States must be viewed\nas holding an office of trust under the Emoluments Clause.\xe2\x80\x9d 10 We reject this\nsweeping and unqualified view.\nUntil 1988, we had never interpreted the Emoluments Clause as applying to\npersons entirely outside the federal government. To be sure, we concluded in 1982\nthat the Emoluments Clause applies more broadly than just to the \xe2\x80\x9c offices\xe2\x80\x9d cov\xc2\xad\nered by the Appointments Clause,11 and also reaches \xe2\x80\x9c \xe2\x80\x98lesser functionaries\xe2\x80\x99 sub\xc2\xad\nordinate to officers.\xe2\x80\x9d 12 But such \xe2\x80\x9c \xe2\x80\x98lesser functionaries\xe2\x80\x99 subordinate to officers\xe2\x80\x9d\nplainly are in the United States Government.\nWhile we understand the concern behind the 1988 opinion \xe2\x80\x94 certain govern\xc2\xad\nmental functions are of such importance that their assignment to persons under\nobligation to a foreign government may raise serious problems \xe2\x80\x94 we see no basis\nfor extending the Emoluments Clause to persons having no position or employ\xc2\xad\nment in the United States Government.13 First, the expressed purpose for the\nEmoluments Clause was to \xe2\x80\x9c preserv[e] foreign Ministers & other officers of the\nU.S. independent of external influence.\xe2\x80\x9d 14 This formulation supports the view\nthat the Emoluments Clause extends only to those, like foreign ministers, who\nhave positions in the Government of the United States. Second, the ordinary mean\xc2\xad\ning of the term \xe2\x80\x9c office\xe2\x80\x9d does not include assignments of duties to persons who\n\xe2\x80\x98 Id. at 69.\n9 Id. at 68.\ni0Id. at 69.\n*1See Application o f the Emoluments Clause o f the Constitution and the Foreign Gifis and Decorations Act, 6\nOp. O.L.C. 156, 157-58 (1982).\n12 See Application o f Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission, 10\nOp. O.L.C. 96, 98 (1986). The Appointments Clause applies only to persons (1) in a position o f employment (as\nopposed to an independent contractor), (2) within the federal government (3) that carries significant authority. See\nConstitutional Limitations on Federal Government Participation in Binding Arbitration, 19 Op. O.L.C. 208, 2 1 0 11 (1995). The Emoluments Clause is not so limited. Most significantly, the Emoluments Clause applies regardless\nof whether the person exercises \xe2\x80\x9c significant authority.\xe2\x80\x9d See Application o f the Emoluments Clause o f the Constitution\nand the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 158 (1982) ( \xe2\x80\x9c The problem o f divided loyalties\ncan arise at any level.\xe2\x80\x9d ).\n13 In the same year we concluded that Civilian Aides to the Secretary o f the Army occupied an \xe2\x80\x9c Office o f T rust\xe2\x80\x9d\nand thus were covered by the Emoluments Clause. In contrast to the U.K. shipriders, however, there was no question\nthat, as a threshold matter, the Civilian Aides held an \xe2\x80\x9c Office.\xe2\x80\x9d As the opinion explains, certain Army regulations\ngoverned Civilian Aides, the Aides were chosen by the Secretary according to specified criteria, and they were\nsubject to security clearances and standards o f conduct. They served a \xe2\x80\x9c term o f office\xe2\x80\x9d o f two years and enjoyed\nthe \xe2\x80\x9c responsibilities and privileges\xe2\x80\x9d o f the position until formal \xe2\x80\x9c separation action\xe2\x80\x9d was taken by the Secretary.\nMemorandum for James H. Thessin, Assistant Legal Adviser for Management, United States Department o f State,\nfrom John O. McGinnis, Deputy Assistant Attorney General, Office o f Legal Counsel, Re: Application o f the Emolu ments Clause to a Civilian Aide to the Secretary o f the Army at 3 (Aug. 29, 1988).\n14 2 Farrand at 389.\n\n349\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nhold no positions in the government. In interpreting the term even outside the\ncontext of the Constitution, the Supreme Court has stated that \xe2\x80\x9c [a]n office is\na public station conferred by the appointment of government\xe2\x80\x9d and that \xe2\x80\x9c [t]he\nterm embraces the idea of tenure, duration, emolument and duties fixed by\nlaw.\xe2\x80\x9d >s\nAssisting in the enforcement o f federal law does not, in itself, make a person\nan officer for purposes of the Emoluments Clause. If so, all persons, including\nstate actors, who enforce federal law would be barred from accepting any \xe2\x80\x9c emolu\xc2\xad\nment\xe2\x80\x99\xe2\x80\x99 from a foreign government. Thus, for example, state governors, local offi\xc2\xad\ncers, and qui tam relators would be barred from accepting an appointment as an\ninstructor in certain foreign public universities.16 Such a limitation, however, is\nnot compelled by the text of the clause \xe2\x80\x94 in fact it is not even facially consistent\nwith the text\xe2\x80\x94 and would do nothing to further the purpose of the Clause.\nAlthough the definition of an officer for the purpose of the Emoluments Clause\nis more expansive than for the Appointments Clause, this Office has drawn a\ndistinction in the context of the Appointments Clause between individuals covered\nby that Clause and individuals who exercise authority that is delegated by federal\nlaw that is equally applicable to the Emoluments Clause. As we recently ex\xc2\xad\nplained:\nIt is a conceptual confusion to argue that federal laws delegating\nauthority to state officials create federal \xe2\x80\x9c offices,\xe2\x80\x9d which are then\nfilled by (improperly appointed) state officials. Rather, the \xe2\x80\x9c public\nstation, or employment\xe2\x80\x99 \xe2\x80\x99 has been created by state law; the federal\nstatute simply adds federal authority to a pre-existing state office.\nAccordingly, the substantiality of the delegated authority is immate\xc2\xad\nrial to the Appointments Clause conclusion. An analogous point ap\xc2\xad\nplies to delegations made to private individuals: the simple assign\xc2\xad\nment of some duties under federal law, even significant ones, does\nnot by itself pose an Appointments Clause problem.17\nSimilarly, we believe it is a conceptual confusion to argue that delegating authority\nto foreign officials creates federal \xe2\x80\x9c offices,\xe2\x80\x9d which are then filled by (improperly\npaid) foreign officials. Rather, the office held is a foreign, not a U.S. office; the\nbilateral agreement merely adds additional authority to an existing foreign office.\n>\xe2\x80\x99 M etcalf & Eddy v. Mitchell, 269 U.S. 514, 520 (1926).\n16 C f Applicability o f Emoluments Clause to Employment o f Government Employees by Foreign Public Univer\xc2\xad\nsities, 18 Op. O .L.C. 13 (1994) (concluding that foreign public universities are presumptively instrumentalities of\nforeign States under the Emoluments Clause).\n17 The Constitutional Separation o f Powers between the President and Congress, 20 Op. O.L.C. 124, 142 n 5 2\n(1996) (expressly superseding inconsistent prior opinions o f this Office regarding the Appointments Clause).\n\n350\n\n\x0cThe Constitutionality o f Cooperative International Law Enforcement Activities Under the Emoluments\nClause\n\nThe assignment of some duties under an international executive agreement, even\nsignificant ones, does not by itself pose an Emoluments Clause problem.\nCHRISTOPHER H. SCHROEDER\nActing Assistant Attorney G eneral\nOffice o f Legal Counsel\n\n351\n\n\x0c'