b"Continuation of Federal Prisoner Detention Efforts During\nUnited States Marshals Service Appropriation Deficiency\nIt is doubtful that the \xe2\x80\x9c authorized by law \xe2\x80\x9d exception to the A ntideficiency A ct would allow the\nU nited States M arshals Service to continue to provide prisoner detention-related functions during\na deficiency in its Federal Prisoner Detention budget, but it is likely that the \xe2\x80\x9c em ergency\xe2\x80\x9d excep\xc2\xad\ntions set forth in \xc2\xa7 1342 and \xc2\xa7 1515 o f that statute would apply, in many, if not all, circum stances.\n\nApril 5, 2000\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nU n it e d S t a t e s M a r s h a l s S e r v ic e\n\nI. Introduction and Summary\nFacing a possible deficiency in its FY 1999 Federal Prisoner Detention Budget\n( \xe2\x80\x9c FPD\xe2\x80\x9d ), the Marshals Service sought our opinion on the potential applicability\nof certain exceptions to the Antideficiency Act, 31 U.S.C. \xc2\xa7\xc2\xa7 1341-1342, 13491350, 1511-1519 (1994). See Memorandum for Randolph Moss, Acting Assistant\nAttorney General, Office of Legal Counsel, from Deborah'C. Westbrook, General\nCounsel, United States Marshals Service, Re: Possible Anti-Deficiency Act Viola\xc2\xad\ntion \xe2\x80\x94 Request fo r Legal Opinion (Dec. 23, 1998) (\xe2\x80\x9c USMS Memorandum\xe2\x80\x9d ). In\nresponse to this request, we issued an interim opinion outlining the USMS\xe2\x80\x99s\naffirmative obligation to address the anticipated deficiency in the FPD appro\xc2\xad\npriated budget either by procuring supplemental funding through reprogramming\nor by curtailing expenditures and obligations that would eventually cause a defi\xc2\xad\nciency or necessitate supplemental appropriation. See United States Marshals\nService Obligation to Take Steps to Avoid Anticipated Appropriations Deficiency ,\n23 Op. O.L.C. 105 (1999) (\xe2\x80\x9c Interim Opinion\xe2\x80\x9d ). It is our understanding that, in\nthe end, the Marshals Service was able to avoid the potential deficiency, and thus\nwas not required to face the question of whether, and in what manner, it could\ncontinue to perform its mission after having expended all appropriated funds.\nAlthough the current threat of deficiency has passed, you have asked that we\nnonetheless consider whether the \xe2\x80\x9c authorized by law\xe2\x80\x9d or \xe2\x80\x9c emergency\xe2\x80\x9d excep\xc2\xad\ntions contained in the Antideficiency Act are applicable to the prisoner detention\nfunctions performed by the USMS. We conclude that it is doubtful that the\n\xe2\x80\x9c authorized by law\xe2\x80\x9d exception would permit the USMS to continue to provide\nprisoner detention-related functions during a deficiency, but it is likely that the\nUSMS could in many, if not all, circumstances continue to perform detention func\xc2\xad\ntions under the \xe2\x80\x9c emergency\xe2\x80\x9d exceptions set forth in \xc2\xa7 1342 and \xc2\xa7 1515 of the\nAntideficiency Act. We stress, however, that this authority only permits entering\ninto an obligation to make payment for services, and related material, during a\nperiod of deficiency and does not authorize actually making payment on such\n47\n\n\x0cOpinions o f the Office o f Legal Counsel m Volume 24\n\nobligations without returning to Congress for an appropriation. We also stress,\nas we did in our Interim Opinion, that the USMS would, if again faced with\na risk of deficiency, have an affirmative obligation to take steps, to the extent\npossible, to avoid the deficiency.\nII. Analysis\nAs we indicated in our Interim Opinion, the Antideficiency Act reinforces the\nprohibition in Article 1, Section 9 of the Constitution that \xe2\x80\x9c [n]o Money shall\nbe drawn from the Treasury, but in Consequence of Appropriations made by\nLaw,\xe2\x80\x9d U.S. Const, art. I, \xc2\xa79, cl. 7, by imposing administrative and criminal pen\xc2\xad\nalties on officers and employees o f the United States Government and the District\nof Columbia who \xe2\x80\x9c make or authorize an expenditure or obligation exceeding an\namount available in an appropriation\xe2\x80\x9d or \xe2\x80\x9c involve either government in a contract\nor obligation for the payment o f money before an appropriation is made unless\nauthorized by law.\xe2\x80\x9d See 31 U.S.C. \xc2\xa71341; see also id. \xc2\xa71349 (subjecting\nAntideficiency Act violators to \xe2\x80\x9c appropriate administrative discipline including,\nwhen circumstances warrant, suspension from duty without pay or removal from\noffice\xe2\x80\x9d ); id. \xc2\xa71350 (imposing a criminal fine of not more than $5,000 and/or\na term of imprisonment for not more than two years for Antideficiency Act viola\xc2\xad\ntions). It establishes a broad prohibition against such expenditures, indeed even\nagainst attempts to incur obligations in excess of appropriated funds, and admits\nonly two statutory exceptions, the exception for services \xe2\x80\x9c authorized by law\xe2\x80\x9d\nand for \xe2\x80\x9c emergencies involving the safety of human life or the protection of prop\xc2\xad\nerty.\xe2\x80\x9d See 31 U.S.C. \xc2\xa7\xc2\xa7 1341, 1342; but see Armster v. United States Dist. Court\nfo r the Cent. D ist., 792 F.2d 1423 (9th Cir. 1986) (holding that Seventh Amend\xc2\xad\nment right to a jury trial in civil cases precluded court system from suspending\ncivil trials as part of an effort to comply with the Antideficiency Act).\nPreviously, we have most often examined the \xe2\x80\x98\xe2\x80\x98authorized by law\xe2\x80\x99\xe2\x80\x99 and \xe2\x80\x98 \xe2\x80\x98emer\xc2\xad\ngency\xe2\x80\x9d exceptions in the context of a lapsed appropriation.1 Your request calls\nfor us to interpret those exceptions in the context of an appropriation that has\nnot lapsed but, instead, is likely to be exceeded. We think our more recent prece\xc2\xad\ndents concerning lapsed appropriations are relevant to our analysis of the excep\xc2\xad\ntions that apply where an agency has exhausted its appropriated funds and there\xc2\xad\nfore review some of the history and principles outlined in our earlier memoranda.\n1 See, e .g , Effect o f Appropriations fo r O ther Agencies and Branches on the Authonty to Continue Department\no f Justice Functions During the Lapse in the Department's Appropriations, 19 Op. O.L.C. 337 (1995); Maintaining\nEssential Services in the District o f Columbia in the Event Appropriations Cease, 12 Op. O.L C. 290 (1988); Continu\xc2\xad\nation o f Agency Activities During a Lapse in Both Authorization and Appropriation, 6 Op O.L.C. 555 (1982); Pay\xc2\xad\nm ent o f Travel Costs to Witnesses During a Period o f Lapsed Appropriations, 5 Op O L.C 429 (1981), Applicability\no f the Antideficiency A ct Upon a Lapse in an Agency's Appropriation, 4A Op. O.L C. 16 (1980)\n\n48\n\n\x0cContinuation o f Federal Prisoner Detention Efforts During United States M arshals Service\nAppropriation Deficiency\n\nA. \xe2\x80\x9c Authorized By Law\xe2\x80\x9d Exception of Section 1341 of the Antideficiency Act.\nWe begin with the \xe2\x80\x9c authorized by law\xe2\x80\x9d exception set forth in \xc2\xa7 1341 of the\nAntideficiency Act, which was first incorporated into the statute in 1905. Act of\nMar. 3, 1905, ch. 1484, \xc2\xa74, 33 Stat. 1214, 1257; see also 39 Cong. Rec. 369092, 3780-81 (1905). Section 1341 provides, in relevant part, that:\n[a]n officer or employee of the United States Government or of\nthe District of Columbia government may not \xe2\x80\x94 (A) make or\nauthorize an expenditure or obligation exceeding an amount avail\xc2\xad\nable in an appropriation or fund for the expenditure or obligation;\n[or] (B) involve either government in a contract or obligation for\nthe payment of money before an appropriation is made unless\nauthorized by law.\n\n31 U.S.C. \xc2\xa7 1341 (emphasis added). Although \xc2\xa7 1341 creates a general prohibition\nagainst expenditures in excess of appropriations, we have interpreted its \xe2\x80\x9c author\xc2\xad\nized by law\xe2\x80\x9d provision to permit the obligation of funds in advance of appropria\xc2\xad\ntions, where such obligations are:\n(1) funded by moneys, the obligational authority of which is not\nlimited to one year, e.g., multi-year appropriations; (2) authorized\nby statutes that expressly permit obligations in advance of appro\xc2\xad\npriations; or (3) authorized by necessary implication from the spe\xc2\xad\ncific terms of duties that have been imposed on, or of authorities\nthat have been invested in, the agency.\nAuthority fo r the Continuance o f Government Functions During a Temporary\nLapse in Appropriations, 5 Op. O.L.C. 1, 5 (1981) (\xe2\x80\x9c 1981 Civiletti Opinion\xe2\x80\x9d ).\n\nBecause the obligational authority for the FPD appropriations is limited to one\nyear and we are aware of no statute expressly giving the USMS authority to carry\nout its prisoner detention functions despite a lack of available funds, the issue\nhere is whether authority for the continuance of such functions during a funding\ndeficiency can be inferred from the broadly defined powers and duties of the\nUSMS. Under 28 U.S.C. \xc2\xa7 566(a) (1994), the \xe2\x80\x9c primary role and mission of the\nUnited States Marshals Service\xe2\x80\x9d is \xe2\x80\x9c to provide for the security and to obey, exe\xc2\xad\ncute, and enforce all orders of the United States District Courts, the United States\nCourts of Appeals and the Court of International Trade.\xe2\x80\x9d Among other duties,\nthe USMS must \xe2\x80\x9c execute all lawful writs, process, and orders issued under the\nauthority of the United States,\xe2\x80\x9d id. \xc2\xa7 566(c); may make certain arrests, id.\n\xc2\xa7 566(d); may provide defined protective services, id. \xc2\xa7 566(e)(1)(A); and may\n\xe2\x80\x9c investigate such fugitive matters . . . as directed by the Attorney General,\xe2\x80\x9d id.\n49\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\n\xc2\xa7 566(e)(1)(B). Moreover, in executing the laws of the United States, each U.S.\nMarshal is vested with the same sweeping authority as that vested under state\nlaw in the sheriff of the state in which the Marshal is serving. 28 U.S.C. \xc2\xa7 564\n(1994).\nWe doubt that the authority to obligate expenditures in the face of a deficiency\ncan be inferred from the USMS duties described in \xc2\xa7 566. Although the USMS\nis statutorily required to \xe2\x80\x9c execute[] and enforce all orders of the United States\nDistrict Courts,\xe2\x80\x9d including orders remanding prisoners to the custody of the\nUSMS, and is authorized to arrest, and thus to hold, certain persons,2 we have\npreviously stated that \xe2\x80\x9c statutory authority to incur obligations in advance of\nappropriations . . . may not ordinarily be inferred, in the absence of appropria\xc2\xad\ntions, from the kind of broad, categorical authority, standing alone, that often\nappears . . . in the organic statutes of government agencies.\xe2\x80\x9d 5 Op. O.L.C. at\n4. A conclusion that obligations in excess of appropriations are \xe2\x80\x9c authorized by\nlaw\xe2\x80\x9d must be supported by something more than a finding that the functions for\nwhich the obligations are to be made can reasonably be said to fall within the\nagency\xe2\x80\x99s general responsibilities. Id. For that reason, Attorney General\nMcReynolds concluded in a 1913 opinion that, without more, the Postmaster Gen\xc2\xad\neral\xe2\x80\x99s broad authority for operating the mail service would be insufficient\nauthorization for attempting to avoid an interruption in such service by obligating\nfunds in excess of appropriations to employ temporary mail carriers. Postal\nService \xe2\x80\x94 Employment o f Temporary and Auxiliary Clerks and Letter Carriers,\n30 Op. A tt\xe2\x80\x99y Gen. 157, 160-61 (1913); see also 5 Op. O.L.C. at 5.\nAlthough we recognize that there is an argument that the USMS\xe2\x80\x99s statutory\nobligation to \xe2\x80\x9c provide for the security . . . of the United States\xe2\x80\x9d confers the\nspecial authority contemplated by the \xe2\x80\x9c authorized by law\xe2\x80\x9d exception, we cannot\nconclude with any certainty that permission to continue the performance of pris\xc2\xad\noner detention functions in the face of a deficiency can reasonably be inferred\nfrom this provision. The legal and administrative precedents do not provide any\nclear direction on this point, but raise doubt about the argument. In your memo\xc2\xad\nrandum, you suggested that authorization for expenditures in excess of appropria\xc2\xad\ntion might be found in court orders requiring the USMS to transport and detain\nfederal prisoners. USMS Memorandum at 4\xe2\x80\x946. In our view, the \xe2\x80\x9c authorized by\nlaw\xe2\x80\x9d exception must refer to congressional, as opposed to judicial, authorization\nto expend funds. The Antideficiency Act was intended to reaffirm congressional\ncontrol of the purse. See Interim Opinion, 23 Op. O.L.C. at 108. As a result,\nit is necessary to consider whether Congress, at least implicitly, \xe2\x80\x9c authorized\xe2\x80\x9d\nthe expenditure of funds in excess o f appropriations in order to satisfy court orders\n2 See 28 U.S C \xc2\xa7\xc2\xa7564, 566(a) and (d) See also 28 C .F R. \xc2\xa7 0 l l l ( k ) (1999) (Director of USMS shall direct\nand supervise \xe2\x80\x9c Isjustention o f custody of Federal prisoners from the time of their arrest by a marshal or their\nremand to a marshal by the court, until the prisoner is committed by order o f the court to the custody o f the Attorney\nG eneral for the service o f sentence, otherwise released from custody by the court, or returned to the custody of\nthe U[nited] S[tates] Parole Commission or the Bureau o f Prisons \xe2\x80\x9d )\n\n50\n\n\x0cContinuation o f Federal Prisoner Detention Efforts During United States Marshals Service\nAppropriation Deficiency\n\nrequiring the USMS to detain prisoners. This inquiry, however, would seem to\nlead back to the guiding principle that statutory authority contained in an agency\xe2\x80\x99s\norganic statute generally provides an insufficient basis to satisfy the \xe2\x80\x9c authorized\nby law\xe2\x80\x9d exception to the Antideficiency Act. Thus, finding no clear authority\nfor USMS detention-related expenditures in excess of appropriation, we look next\nto whether the prisoner detention functions performed by the USMS fall within\nthe \xe2\x80\x9c emergency\xe2\x80\x9d exception contained in the Antideficiency Act.\nB. \xe2\x80\x9c Emergency\xe2\x80\x9d Exception of Section 1342 of the Antideficiency Act.\nThe second exception from the Antideficiency Act\xe2\x80\x99s proscription is for \xe2\x80\x9c emer\xc2\xad\ngencies involving the safety of human life or the protection of property\xe2\x80\x9d and\nis contained in \xc2\xa7 1342 of the Act. Under that provision,\n[a]n officer or employee of the United States Government or of\nthe District of Columbia government may not accept voluntary\nservices for either government or employ personal services\nexceeding that authorized by law except fo r emergencies involving\nthe safety o f human life or the protection o f property.\n\n31 U.S.C. \xc2\xa7 1342 (emphasis added). Although this provision refers only to the\nacceptance of voluntary services, we have previously interpreted its exception also\nto permit agencies to \xe2\x80\x9c incur obligations in advance of appropriations for material\nto enable the employees involved to meet the emergency successfully.\xe2\x80\x9d 5 Op.\nO.L.C. at 11. Significantly, this provision authorizes entering into obligations to\npay for services, and related material, but it does not itself authorize making pay\xc2\xad\nment on any such obligations. See Memorandum for Alice Rivlin, Director, Office\nof Management and Budget, from Walter Dellinger, Assistant Attorney General,\nOffice of Legal Counsel, Re: Government Operations in the Event o f a Lapse\nin Appropriations at 6 (Aug. 16, 1995) (\xe2\x80\x9c Rivlin Memorandum\xe2\x80\x9d ). Before payment\ncould be made in case of a deficiency, it would be necessary to return to Congress\nfor an appropriation. See id.\nThe exception for \xe2\x80\x9c emergencies\xe2\x80\x9d contained in \xc2\xa7 1342 has long been recognized\nas an important component of the Antideficiency Act. 5 Op. O.L.C. at 8. It bears\nnoting, however, that the earliest version of the statute, enacted in 1870, included\nno exception for emergency situations. Id. It set forth only a very general prohibi\xc2\xad\ntion against the expenditure of \xe2\x80\x9c any sum in excess of appropriations\xe2\x80\x9d or\n\xe2\x80\x9c involving] the Government in any contract for the future payment of money\nin excess of such appropriations.\xe2\x80\x9d 3 Congress did not include an exception for\n2See Rev Slat \xc2\xa73679, Act o f July 12, 1870, 16 Stat. 230, 251 As we noted in our Intenm Opinion, the\nAntideficiency Act has been amended a number o f umes since its enactment in 1870 See, e g .. Act o f Mar 3,\n1905, ch 1484, \xc2\xa7 4 , 33 Slat. 1214, 1257, Act o f Feb. 27, 1906, ch 510, \xc2\xa73 , 34 Stat 27, 48, Act of Aug 23,\nContinued\n\n51\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nemergencies until 1884, when, as part of an urgent deficiency appropriation, it\nenacted a measure designed to curb the incidence of claims for compensation\nstemming from the unauthorized provision of services to the government by non\xc2\xad\ngovernmental employees, and claims advanced by government employees seeking\ncompensation for services performed after hours. 5 Op. O.L.C. at 8. Legislators\nwere concerned that a complete ban on all \xe2\x80\x9c voluntary\xe2\x80\x9d or non-gratuitous services\nwould impede federal \xe2\x80\x9c life-saving\xe2\x80\x9d measures undertaken during periods of lapsed\nor exhausted appropriations, and urged the adoption of an exception for emergency\nsituations. See 15 Cong. Rec. 2143 (1884) (statement of Sen. Beck). The provision\nadopted in 1884 read as follows:\nTo enable the Secretary o f the Interior to pay the employees\ntemporarily employed and rendering service in the Indian Office\nfrom January first up to July first, eighteen hundred and eightyfour, two thousand one hundred dollars, and hereafter no D epart\xc2\xad\nm ent o r officer o f the United States shall accept voluntary service\nfo r the Government or employ personal service in excess o f that\nauthorized by law except in cases o f sudden emergency involving\nthe loss o f human life or the destruction o f property.\n\nAct of May 1, 1884, ch. 37, 23 Stat. 15, 17 (emphasis added).\nCongress amended other aspects of the Antideficiency Act in the years fol\xc2\xad\nlowing initial adoption of the \xe2\x80\x9c emergency\xe2\x80\x9d exception, but did not alter that provi\xc2\xad\nsion until 1950, when it enacted the modem version of the Antideficiency Act.\nSee Act o f Sept. 6, 1950, ch. 896, \xc2\xa71211, 64 Stat. 595, 765. The Comptroller\nGeneral and the Director of the Bureau of the Budget jointly proposed new lan\xc2\xad\nguage in a 1947 report to Congress recommending certain changes in the\nAntideficiency Act and its administration. See Report and Recommendations by\nthe D irector o f the Bureau of the Budget and the Comptroller General o f the\nUnited States with respect to the Antideficiency A ct and Related Legislation and\nProcedures 29-31 (June 5, 1947) (attachment to Letter for Honorable Styles\n\nBridges, Chairman, Senate Committee on Appropriations) (\xe2\x80\x9c Antideficiency Act\nReport\xe2\x80\x9d ). Congress accepted this recommendation and revised the language con\xc2\xad\ncerning the provision of emergency services in the context of an appropriations\ndeficiency as follows:\nNo officer or employee o f the United State shall accept voluntary\nservice for the United States or employ personal service in excess\n1912, ch. 350, \xc2\xa7 6 , 37 Stat 360, 414, Act o f Sept. 6, 1950, ch. 896, \xc2\xa71211, 64 Stat. 595, 765; Act of Aug 1,\n1956, ch. 814, \xc2\xa7 3 , 70 Stat 782, 783, Pub. L. No 85-170, \xc2\xa7 1401, 71 Stat 426, 440 (1957), Pub. L. No 9 3 344, \xc2\xa7 1002, 88 Stat. 297, 332 (1974), Pub. L. No. 93-618, \xc2\xa7 175(a), 88 Stat. 1978, 2011 (1975); Pub. L. No.\n101-508, \xc2\xa7 13213(a), 104 Stat. 1388, 1388-621 (1990).\n\n52\n\n\x0cContinuation o f Federal Prisoner Detention Efforts During United States Marshals Service\nAppropriation Deficiency\n\nof that authorized by law, except in cases o f emergency involving\nthe safety o f human life or the protection o f property.\n\nAct of Sept. 6, 1950, ch. 896, \xc2\xa7 1211, 64 Stat. 595, 765 (emphasis added). Neither\nthe 1947 report nor the legislative history sheds any light on why the language\nof this provision was amended to focus on \xe2\x80\x9c cases of emergency,\xe2\x80\x9d rather than\non \xe2\x80\x9c cases of sudden emergency.\xe2\x80\x9d 4 In a 1981 opinion, however, Attorney General\nCiviletti inferred from the plain language of the amendment an intent \xe2\x80\x98 \xe2\x80\x98to broaden\nthe authority for emergency employment.\xe2\x80\x9d 5 Op. O.L.C. at 9. He explained that,\n\xe2\x80\x9c [i]n essence, [Congress] replaced the apparent suggestion of a need to show\nabsolute necessity with a phrase more readily suggesting the sufficiency o f a\nshowing of reasonable necessity in connection with the safety of human life or\nthe protection of property in general.\xe2\x80\x9d Id. He also identified two rules for identi\xc2\xad\nfying the functions for which emergency services could be procured:\nFirst, there must be some reasonable and articulable connection\nbetween the function to be performed and the safety of human life\nor the protection of property. Second, there must be some reason\xc2\xad\nable likelihood that the safety of human life or the protection of\nproperty would be compromised, in some degree, by delay in the\nperformance of the function in question.\nId. at 8.\n\nIn 1990, Congress added a clarifying statement to the \xe2\x80\x9c emergency\xe2\x80\x9d exception\nincorporated in the 1950 Act. The clarifying provision reads:\nAs used in this section, the term \xe2\x80\x9c emergencies involving the safety\nof human life or the protection of property\xe2\x80\x9d does not include\nongoing, regular functions of government the suspension o f which\nwould not imminently threaten the safety of human life or the\nprotection of property.\n\xe2\x80\x9c The section o f the 1947 Comptroller General and Bureau o f the Budget report addressing this provision merely\nprovides information on the desired effect of the revised language and explains lhat \xe2\x80\x9c [tjhis clause is intended to\npermit apportionments on a basis indicating a necessity for a deficiency or a supplemental estimate when the rate\nof obligating an appropriation must be increased to provide for emergencies involving the safety of human life\nor the protection o f property.\xe2\x80\x9d Antideficiency Act Report at 29. Report sections discussing the predecessor to \xc2\xa7 1515,\nwhich contains a similar \xe2\x80\x9c em ergency\xe2\x80\x9d exception from the apportionment requirements of the Antideficiency Act,\ndo, however, offer insight into the purpose underlying amendments made to the apportionment statute. The report\ndrafters described the version o f that statute employing the phrase \xe2\x80\x9c some extraordinary emergency or unusual cir\xc2\xad\ncumstance which could not be anticipated at the time of making such an apportionment\xe2\x80\x9d as \xe2\x80\x9c vague \xe2\x80\x9d Antideficiency\nAct Report at 30 They also included the phrase \xe2\x80\x9c em ergencies] involving the safety of human life or the protecuon\nof property\xe2\x80\x9d in the draft bill included in the document they submitted to Congress See Antideficiency Act Report,\natt at 1; see also Act o f Sept 6, 1950, ch 896, \xc2\xa7 1211, 64 Stat. 595, 765 (incorporating a variation o f the rec\xc2\xad\nommended language).\n\n53\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\n31 U.S.C. \xc2\xa7 1342. The legislative history underlying the inclusion of the clarifying\nstatement is sparse. See Rivlin Memorandum at 8. In a 1995 opinion, in which\nwe considered the meaning of the 1990 amendment, we noted that the reference\nto the amendment appearing in a conference report concerning the Omnibus\nBudget Reconciliation Act of 1990, Pub. L. No. 101-508, 104 Stat. 1388, suggests\nthat the change was made to narrow the range of functions that could reasonably\nbe understood to fall within the \xe2\x80\x9c emergency\xe2\x80\x9d exception, and to avoid the possi\xc2\xad\nbility that the 1981 Civiletti Opinion might be read to permit the continuance\nof too broad of an array of government services during a shutdown. The con\xc2\xad\nference report explained that:\nThe [bill] also makes conforming changes to title 31 of the\nUnited States Code to make clear that funds sequestered are not\navailable for expenditure and that ongoing, regular operations of\nthe Government cannot be sustained in the absence of appropria\xc2\xad\ntions, except in limited circumstances. These changes guard against\nwhat the conferees believe might be an overly broad interpretation\no f an opinion of the Attorney General issued on January 16, 1981,\nregarding the authority for the continuance of Government func\xc2\xad\ntions during the temporary lapse of appropriations, and affirm that\nthe constitutional power of the purse resides with Congress.\nH.R. Rep. No. 101-964, at 1170 (1990), reprinted in 1990 U.S.C.C.A.N. 2374,\n2875. Although it is evident that the amendment was \xe2\x80\x9c intended to limit the cov\xc2\xad\nerage of [the term emergency], narrowing the circumstances that might otherwise\nbe taken to constitute an emergency within the meaning of the statute,\xe2\x80\x9d the\namendment did not require a dramatic change in this Office\xe2\x80\x99s approach to and\ninterpretation of the \xe2\x80\x9c emergency\xe2\x80\x9d exception. See Rivlin Memorandum at 8. We\nconcluded that we might avoid misinterpretation of the 1981 Civiletti Opinion\nby replacing the phrase \xe2\x80\x9c in some degree\xe2\x80\x9d in the second of the interpretative rules\noutlined in the opinion with the phrase \xe2\x80\x9c in some significant degree,\xe2\x80\x9d but we\nalready were interpreting the \xe2\x80\x9c emergency\xe2\x80\x9d exception narrowly, encompassing\nonly those cases of threat to human life or property in which \xe2\x80\x9c the threat can\nbe reasonably said to [be] near at hand and demanding of immediate response.\xe2\x80\x9d\nId. at 7. The clarifying text added by the 1990 amendment merely provided a\ngloss on the term \xe2\x80\x9c emergency,\xe2\x80\x9d reinforcing what is implicit in the concept of\nan emergency \xe2\x80\x94 that there must exist an imminent threat or set of circumstances\nrequiring an immediate response or action. Id. at 8-9.\nAgainst this backdrop, we now consider the question whether the prisoner-detention functions performed by the USMS fall within the \xe2\x80\x9c emergency\xe2\x80\x9d exception\non the ground that a decision not to continue them in the face of an appropriations\ndeficiency would pose a threat to the safety of human life or to property that\n54\n\n\x0cContinuation o f Federal Prisoner Detention Efforts During United Stales Marshals Service\nAppropriation Deficiency\n\ncould reasonably be described as near at hand or imminent. As we have noted,\nunder 28 U.S.C. \xc2\xa7566, the USMS must provide for the security of the United\nStates courts, and is responsible for executing and enforcing federal court orders.\nSee also 28 U.S.C. \xc2\xa7564 (providing Marshals with \xe2\x80\x9c the same powers which a\nsheriff of the State may exercise in executing the laws th ereo f\xe2\x80\x99). In this capacity,\nand under its FPD appropriation, the USMS shoulders primary responsibility, not\nonly for transporting prisoners ordered to appear in federal court, but also for\nproviding them with food, shelter, and medical services during the pendency of\ntheir court proceedings. This task is usualJy accomplished through contracts\nexecuted with local jails and prisons for the care and supervision of federal\ndetainees. In a typical year, the USMS has more than 20,000 such detainees in\nits custody.5\nIt is likely that even a temporary suspension o f the prisoner detention functions\nprovided by the USMS would in many, and perhaps all, circumstances create an\nemergency involving the safety of human life or the protection of property within\nthe meaning of \xc2\xa7 1342. Certainly, to the extent suspension of prisoner detention\nfunctions would require the release of dangerous prisoners, or would preclude\nthe provision of essential prisoner care or supervision, the exception would apply.\nIn our judgment, hardship of this sort is what Congress intended to avoid in cre\xc2\xad\nating an \xe2\x80\x9c emergency\xe2\x80\x9d exception to the Antideficiency Act, and it satisfies the\nrigorous \xc2\xa7 1342 standard identified in our earlier opinions on this subject.\nIt is possible that the failure to perform specific FPD functions would not rise\nto this level, and that the failure to provide certain benefits to federal prisoners\nwould pose no imminent threat to the safety of human life or the protection of\nproperty. Some prisoners, might, for example, be transferred to the custody of\nthe Bureau of Prisons and some services provided to prisoners might be terminated\nwithout posing a risk to the safety of human life or the protection of property.\nFor this reason, should an unavoidable deficiency occur in the future, it will be\nnecessary to evaluate obligations on a case-by-case basis. It seems clear to us,\nhowever, that at least a substantial portion of FPD-related obligations will likely\nfall within the exception. The precise application of the \xe2\x80\x9c emergency\xe2\x80\x9d exception,\nhowever, cannot be specified in the abstract and will inevitably turn on particular\nfacts and circumstances.\nOur conclusion that many, if not all, FPD-related obligations will likely fall\nwithin the \xe2\x80\x9c emergency\xe2\x80\x9d exception is bolstered by administrative determinations\npreviously made by the Office of Management and Budget ( \xe2\x80\x9c OMB\xe2\x80\x9d ) in the con\xc2\xad\ntext of anticipated or actual appropriations lapses. In September of 1980, OMB\nprepared for the possibility of an appropriations lapse by issuing a memorandum\ninstructing agencies on the activities and functions that could lawfully continue\nin the event Congress failed to pass a continuing resolution for fiscal year 1981.\nThe memorandum listed activities related to the \xe2\x80\x9c [c]are of prisoners and other\n5 FY 1997 Annual Report o f the U.S. Marshals Service at 3 -9 (1998).\n\n55\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\npersons in the custody of the United States\xe2\x80\x9d among the functions protecting life\nand property for which obligations could be incurred without running afoul of\n\xc2\xa7 1341\xe2\x80\x99s prohibition. Memorandum for Heads of Executive Departments and\nAgencies, from James T. McIntyre, Jr., Director, Office of Management and\nBudget, Re: Agency Operations in the Absence o f Appropriations at 2 (Sept. 30,\n1980). A year later, in 1981, OMB issued another memorandum listing prisoner\ncare-related services among those agency services that could continue despite a\nlack o f appropriations, when delay in the passage of an appropriation for fiscal\nyear 1982 again required agencies to prepare for an orderly shutdown of nonessential government services and operations. Memorandum for Heads of Execu\xc2\xad\ntive Departments and Agencies, from David A. Stockman, Director, Office of\nManagement and Budget, Re: Agency Operations in the Absence o f Appropriations\nat 2 (Nov. 17, 1981). Similarly, past policies of the Department of Justice\nregarding the continuation of operations during an appropriations lapse also pro\xc2\xad\nvide support for our conclusion. In a 1996 memorandum approved by this Office,\nthe Department of Justice listed \xe2\x80\x9c functions relating to the incarceration of pris\xc2\xad\noners\xe2\x80\x9d among those that could lawfully continue during a lapse in appropriations.\nMemorandum for Heads of Department Components, from Stephen R. Colgate,\nAssistant Attorney General for Administration, Re: Effects o f Continuing Resolu\xc2\xad\ntions on D epartm ent o f Justice Resources, att. at 4 (Apr. 1, 1996).\nC. Emergency Exception of Section 1515 of the Antideficiency Act.\nW e understand your request also to include the question whether the USMS\ncould invoke the \xe2\x80\x9c emergency\xe2\x80\x9d exception as a basis for failing to apportion funds\nunder \xc2\xa7 1512 of the Antideficiency Act.6 As we explained in our Interim Opinion,\nan \xe2\x80\x9c emergency\xe2\x80\x9d exception similar to that set forth in \xc2\xa7 1342 applies to \xc2\xa7 1512\xe2\x80\x99s\napportionment requirement. See Interim Opinion, 23 Op. O.L.C. at 106 n.2. Sec\xc2\xad\ntion 1515(b)(1), (b)(1)(B) provides, inter alia, that\nan official may make, and the head of an executive agency may\nrequest, an apportionment under section 1512 of this title that would\nindicate a necessity for a deficiency or supplemental appropriation\nonly when the official or agency head decides that the action is\nrequired because of . . . an emergency involving the safety o f\nhuman life, the protection o f property, or the immediate welfare\no f individuals . . . .\n\n31 U.S.C. \xc2\xa7 1515(b)(1), (b)(1)(B) (emphasis added).\n6 Section 1512(a) provides, in relevant part, that \xe2\x80\x9c an appropriation available for obligation for a definite penod\nshall be apportioned to prevent obligation o r expenditure at a rate that would indicate a necessity for a deficiency\nor supplemental appropriation for [that] period \xe2\x80\x9d 31 U S.C \xc2\xa7 1512(a).\n\n56\n\n\x0cContinuation o f Federal Prisoner Detention Efforts During United States Marshals Service\nAppropriation Deficiency\n\nAlthough, as we indicated in our Interim Opinion, we think it unlikely that\na finding that an agency qualifies for an exception to the apportionment require\xc2\xad\nments of \xc2\xa7 1512 would also be enough automatically to exempt that agency from\n\xc2\xa7 1341\xe2\x80\x99s more demanding mandate, see Interim Opinion, 23 Op. O.L.C. at 106\nn.2, we think it clear that, if an agency\xe2\x80\x99s functions fall within \xc2\xa7 1342\xe2\x80\x99s exception\nfor emergency situations, the standard for the \xe2\x80\x9c emergency\xe2\x80\x9d exception under\n\xc2\xa7 1515 also will be met. We have previously held that \xc2\xa7 1342 and \xc2\xa7 1515, \xe2\x80\x9c [a]s\nprovisions containing the same language, enacted at the same time, and aimed\nat related purposes . . . should be deemed in pari materia and given a like\nconstruction,\xe2\x80\x9d and can find no justification for following a different course in\nthis case. 5 Op. O.L.C. at 9 n .ll (citing Northcross v. Board o f Educ., 412 U.S.\n427, 428 (1973)); see also General Accounting Office, 2 Principles o f Federal\nAppropriations Law 6-82 to 6-83 (2d ed. 1992). Thus, for the reasons identified\nin the previous section of this memorandum, we conclude that it is likely that\nmany, if not all, of the prisoner-detention functions performed by the USMS\nwould satisfy the \xc2\xa7 1515 standard for \xe2\x80\x9c emergencfies] involving the safety of\nhuman life.\xe2\x80\x9d\nConclusion\nWe conclude that the \xc2\xa7 1342 and \xc2\xa7 1515 exceptions for \xe2\x80\x9c emergencies involving\nthe safety of human life or the protection of property\xe2\x80\x9d would likely apply to\nmany, if not all, of the USMS\xe2\x80\x99s prisoner-detention functions. A determination\nwhether particular obligations would satisfy this narrow exception, however,\ncannot be made in the abstract and would require case-by-case evaluation.\nAlthough the conclusion we reach here would permit the USMS to continue many,\nif not all, of its prisoner detention-related functions despite a deficiency in its\nFPD budget, we reaffirm the principles articulated in our Interim Opinion, and\nthus emphasize that the USMS is not free to invoke the \xe2\x80\x9c emergency\xe2\x80\x9d exception\nin the absence of an actual deficiency in its apportioned funds or overall appropria\xc2\xad\ntion. The USMS is under a general statutory obligation to reduce its prisoner\ndetention-related expenditures to avoid the need for deficiency spending.\nRANDOLPH D. MOSS\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n57\n\n\x0c"


b'Congressional Requests for Information\nfrom Inspectors General Concerning\nOpen Criminal Investigations\nLong-established executive branch policy and practice, based on consideration of both\nCongress\xe2\x80\x99 oversight authority and principles of executive privilege, require that in the\nabsence of extraordinary circumstances an Inspector General must decline to provide\nconfidential information about an open criminal investigation in response to a request\npursuant to Congress\xe2\x80\x99 oversight authonty\nThe reporting provisions of the Inspector General Act do not require Inspectors General\nto disseminate to Congress confidential information pertaining to open criminal\ninvestigations.\n\nMarch 24, 1989\nM emorandum O pinion for the C hairman\nI nvestigations /L aw E nforcement C ommittee\nP resident \xe2\x80\x99s C ouncil on I ntegrity and E fficiency\nIntroduction and Summary\n\nThis memorandum is in response to your request for the opinion of this\nOffice on the obligations of Inspectors General (\xe2\x80\x9cIGs\xe2\x80\x9d) with respect to\ncongressional requests for confidential information about open criminal\ninvestigations. Specifically, you have asked this Office to advise you as to\nthe obligations of the IGs with respect to (1) requests based on Congress\xe2\x80\x99\noversight authority and (2) requests based on the reporting requirements\nof the Inspector General Act of 1978 (\xe2\x80\x9cthe Act\xe2\x80\x9d), Pub. L. No. 95-452, 92\nStat. 1101 (1978) (codified at 5 U.S.C. app. 3).1\nAs discussed below, when pursuant to its oversight authority Congress\nseeks to obtain from an IG confidential information about an open crim\xc2\xad\ninal investigation, established executive branch policy and practice,\nbased on consideration of both Congress\xe2\x80\x99 oversight authority and princi\xc2\xad\nples of executive privilege, require that the IG decline to provide the\ninformation, absent extraordinary circumstances. With respect to con\xc2\xad\ngressional requests based on the congressional reporting requirements of\nthe Act, we have concluded as a matter of statutory construction that\nCongress did not intend those provisions to require production of confi\xc2\xad\n1 On March 8,1989, Larry Elston of your staff oraJly confirmed to Paul Colbom of this Office that these\nare the questions on which you seek our opinion\n77\n\n\x0cdential information about open criminal investigations. Accordingly, IGs\nare under no obligation under the Act to disseminate confidential law\nenforcement information.\nI. Congressional Requests Based on Oversight Authority\nThe decision on how to respond to a congressional request for infor\xc2\xad\nmation from an IG based on Congress\xe2\x80\x99 oversight authority requires the\nweighing of a number of factors arising out of the separation of powers\nbetween the executive and legislative branches. The principal factors to\nbe weighed are the nature of Congress\xe2\x80\x99 oversight interest in the informa\xc2\xad\ntion and the interest of the executive branch in maintaining confidential\xc2\xad\nity for the information.\nA. Congress\xe2\x80\x99Oversight Authority\nThe constitutional role of Congress is to adopt general legislation that\nwill be implemented \xe2\x80\x94 \xe2\x80\x9cexecuted\xe2\x80\x9d \xe2\x80\x94 by the executive branch. \xe2\x80\x9cIt is the\npeculiar province of the legislature to prescribe general rules for the gov\xc2\xad\nernment of society; the application of those rules to individuals in society\nwould seem to be the duty of other departments.\xe2\x80\x9d Fletcher v. Peck, 10 U.S.\n(6 Cranch) 87, 136 (1810). The courts have recognized that this general\nlegislative interest gives Congress investigatory authority. Each House of\nCongress has power, \xe2\x80\x9cthrough its own process, to compel a private indi\xc2\xad\nvidual to appear before it or one of its committees and give testimony\nneeded to enable it efficiently to exercise a legislative function belonging\nto it under the Constitution.\xe2\x80\x9d McGrain v. Daugherty, 273 U.S. 135, 160\n(1927). The issuance of subpoenas in aid of this function \xe2\x80\x9chas long been\nheld to be a legitimate use by Congress of its power to investigate,\xe2\x80\x9d\nEastland v. United States Servicemen\xe2\x80\x99s Fund, 421 U.S. 491, 504 (1975),\nprovided that the investigation is \xe2\x80\x9crelated to, and in furtherance of, a\nlegitimate task of the Congress.\xe2\x80\x9d Watkins v. United States, 354 U.S. 178,\n187 (1957). The inquiry must pertain to subjects \xe2\x80\x9con which legislation\ncould be had.\xe2\x80\x9d McGrain v. Daugherty, 273 U.S. at 177.\nIn short, Congress\xe2\x80\x99 oversight authority\nis as penetrating and far-reaching as the potential power to\nenact and appropriate under the Constitution.\nBroad as it is, the power is not, however, without limita\xc2\xad\ntions. Since Congress may only investigate into those areas\nin which it may potentially legislate or appropriate, it can\xc2\xad\nnot inquire into matters which are within the exclusive\nprovince of one of the other branches of the Government.\n78\n\n\x0cBarenblatt v. United States, 360 U.S. 109, 111-12 (1959) (emphasis\nadded).\nThe execution of the law is one of the functions that the Constitution\nmakes the exclusive province of the executive branch. Article II, Section\n1 provides that \xe2\x80\x9cthe executive Power shall be vested in a President of the\nUnited States of America.\xe2\x80\x9d Article II, Section 3 imposes on the President\nthe corresponding duty to \xe2\x80\x9ctake Care that the Laws be faithfully execut\xc2\xad\ned.\xe2\x80\x9d2 In particular, criminal prosecution is an exclusively executive\nbranch responsibility. Heckler v. Chaney, 470 U.S. 821, 832 (1985);\nBuckley v. Valeo, 424 U.S. 1, 138 (1976); United States v. Nixon, 418 U.S.\n683, 693 (1974). Accordingly, neither the judicial nor legislative branches\nmay directly interfere with the prosecutorial discretion of the executive\nbranch by directing it to prosecute particular individuals.3 Indeed, in\naddition to these general constitutional provisions on executive power,\nthe Framers specifically demonstrated their intention that Congress not\nbe involved in prosecutorial decisions or in questions regarding the crim\xc2\xad\ninal liability of specific individuals by including in the Constitution a pro\xc2\xad\nhibition against the enactment of bills of attainder. U.S. Const, art. I, \xc2\xa7 9,\ncl. 3. See United States v. Lovett, 328 U.S. 303, 317-18 (1946); INS v.\nChadha, 462 U.S. 919, 961-62 (1983) (Powell, J., concurring).\nOn the other hand, Congress\xe2\x80\x99 oversight authority does extend to the\nevaluation of the general functioning of the Inspector General Act and\nrelevant criminal statutes, as well as inquiring into potential fraud, waste\nand abuse in the executive branch. Such evaluations may be seen to be\nnecessary to determine whether the statutes should be amended or new\nlegislation passed. See Watkins v. United States, 354 U.S. at 187. Given\nthe general judicial reluctance to look behind congressional assertions of\nlegislative purpose, an assertion that Congress needed the information\nfor such evaluations would likely be deemed sufficient in most cases to\nmeet the threshold requirement for congressional inquiry. This general\nlegislative interest, however, does not provide a compelling justification\n1 One of the fundamental rationales for the separation of powers is that the power to enact laws and\nthe power to execute laws must be separated in order to forestall tyranny As James Madison stated in\nFederalist No 47\nThe reasons on which Montesquieu grounds his maxim [that the legislative, executive and\njudicial departments should be separate and distinct] are a further demonstration of his\nmeaning \xe2\x80\x9cWhen the legislative and executive powers are united in the same person or body,\xe2\x80\x9d\nsays he, \xe2\x80\x9cthere can be no liberty, because apprehensions may anse lest the same monarch or\nsenate should ettact tyrannical laws to execute them in a tyrannical m anner"\nThe Federalist No 47, at 303 (James Madison) (Clinton Rossiter ed., 1961).\n3 See Heckler v Chaney, 470 U.S at 832 (\xe2\x80\x9c[T]he decision of a prosecutor in the Executive Branch not\nto indict... has long been regarded as the special province of the Executive Branch, inasmuch as it is the\nExecutive who is charged by the Constitution to \xe2\x80\x98take Care that the Laws be faithfully executed \xe2\x80\x99\xe2\x80\x9d),\nUnited States v Nixon, 418 U S. at 693 (\xe2\x80\x9c[T]he Executive Branch has exclusive authority and absolute\ndiscretion to decide whether to prosecute a case.\xe2\x80\x9d)\n\n79\n\n\x0cfor looking into particular ongoing cases.4 Accordingly, we do not believe\nthat as a general matter it should weigh heavily against the substantial\nexecutive branch interest in the confidentiality of law enforcement infor\xc2\xad\nmation. We discuss that interest next.\nB. Executive Privilege\nAssuming that Congress has a legitimate legislative purpose for its\noversight inquiry, the executive branch\xe2\x80\x99s interest in keeping the informa\xc2\xad\ntion confidential must be assessed. This subject is usually discussed in\nterms of \xe2\x80\x9cexecutive privilege,\xe2\x80\x9d and we will use that convention here.5\nExecutive privilege is constitutionally based. To be sure, the Constitution\nnowhere expressly states that the President, or the executive branch gen\xc2\xad\nerally, enjoys a privilege against disclosing information requested by the\ncourts, the public, or the legislative branch. The existence of such a priv\xc2\xad\nilege, however, is a necessary corollary of the executive function vested\nin the President by Article II of the Constitution, has been asserted by\nnumerous Presidents from the earliest days of our Nation, and has been\nexplicitly recognized by the Supreme Court. United States v. Nixon, 418\nU.S. at 705-06. There are three generally-recognized components of exec\xc2\xad\nutive privilege: state secrets, law enforcement, and deliberative process.\nSince congressional requests for information from IGs will generally\nimplicate only the law enforcement component of executive privilege, we\nwill limit our discussion to that component.\nIt is well established and understood that the executive branch has\ngenerally limited congressional access to confidential law enforcement\ninformation in order to prevent legislative pressures from impermissibly\ninfluencing its prosecutorial decisions. As noted above, the executive\nbranch\xe2\x80\x99s duty to protect its prosecutorial discretion from congressional\ninterference derives ultimately from Article II, which places the power to\nenforce the laws exclusively in the executive branch. If a congressional\ncommittee is fully apprised of all details of an investigation as the inves\xc2\xad\ntigation proceeds, there is some danger that congressional pressures will\ninfluence, or will be perceived to influence, the course of the investiga\xc2\xad\ntion. Accordingly, the policy and practice of the executive branch\nthroughout our Nation\xe2\x80\x99s history has been to decline, except in extraordi\xc2\xad\nnary circumstances, to provide committees of Congress with access to,\n4 For instance, Congress\xe2\x80\x99 interest in evaluating the functioning of a criminal statute presumably can be\nsatisfied by numerical or statistical analysis of closed cases that had been prosecuted under the statute,\nor (at most) by an analysis of the closed cases themselves.\n5 The question, however, is not strictly speaking just one of executive privilege While the considera\xc2\xad\ntions that support the concept and assertion of executive privilege apply to any congressional request for\ninformation, the privilege itself need not be claimed formally vis-a-vis Congress except in response to a\nlawful subpoena, in responding to a congressional request for information, the executive branch is not\nnecessarily bound by the limits of executive privilege.\n\n80\n\n\x0cor copies of, open law enforcement files. No President, to our knowledge,\nhas departed from this position affirming the confidentiality and privi\xc2\xad\nleged nature of open law enforcement files.6\nAttorney General Robert H. Jackson well articulated the basic position:\nIt is the position of this Department, restated now with\nthe approval of and at the direction of the President, that all\ninvestigative reports are confidential documents of the\nexecutive department of the Government, to aid in the duty\nlaid upon the President by the Constitution to \xe2\x80\x9ctake care\nthat the Laws be faithfully executed,\xe2\x80\x9d and that congres\xc2\xad\nsional or public access to them would not be in the public\ninterest.\nDisclosure of the reports could not do otherwise than\nseriously prejudice law enforcement. Counsel for a defen\xc2\xad\ndant or prospective defendant, could have no greater help\nthan to know how much or how little information the\nGovernment has, and what witnesses or sources of infor\xc2\xad\nmation it can rely upon. This is exactly what these reports\nare intended to contain.\n40 Op. Att\xe2\x80\x99y Gen. 45, 46 (1941).\nOther grounds for objecting to the disclosure of law enforcement files\ninclude the potential damage to proper law enforcement that would be\ncaused by the revelation of sensitive techniques, methods, or strategy;\nconcern over the safety of confidential informants and the chilling effect\non other sources of information; sensitivity to the rights of innocent indi\xc2\xad\nviduals who may be identified in law enforcement files but who may not\nbe guilty of any violation of law; and well-founded fears that the percep\xc2\xad\ntion of the integrity, impartiality, and fairness of the law enforcement\nprocess as a whole will be damaged if sensitive material is distributed\nbeyond those persons necessarily involved in the investigation and pros\xc2\xad\necution process.7See generally Congressional Subpoenas of Department\nof Justice Investigative Files, 8 Op. O.L.C. 252, 262-66 (1984).\n6See generally Assertion o f Executive Privilege m Response to Congressional Demands fo r Law\nEnforcement Files,\n\n6 Op O L.C. 31 (1982) (regarding request for open law enforcement investigative files\nof the Environmental Protection Agency); Memorandum for the Deputy Attorney General from Robert\nB. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel, Re. Refusals by Executive\nBranch to Provide Documents from Open Crim inal Investigative Files to Congress (Oct. 30, 1984).\n7 In addition, potential targets of enforcement actions are entitled to protection from premature dis\xc2\xad\nclosure of investigative information It has been held that there is \xe2\x80\x9cno difference between prejudicial pub\xc2\xad\nlicity instigated by the United States through its executive arm and prejudicial publicity instigated by the\nUnited States through its legislative arm.\xe2\x80\x9d Delaney v United States, 199 F2d 107, 114 (1st Cir. 1952).\nPretrial publicity originating in Congress, therefore, can be attributed to the government as a whole and\ncan require postponement or other modification of the prosecution on due process grounds Id\n81\n\n\x0cC. Accommodation with Congress\nThe executive branch should make every effort to accommodate\nrequests that are within Congress\xe2\x80\x99 legitimate oversight authority, while\nremaining faithful to its duty to protect confidential information.8 See\ngenerally United States v. AT&T, 567 F.2d 121, 127-30 (D.C. Cir. 1977);\nAssertion of Executive Privilege in Response to a Congressional\nSubpoena, 5 Op. O.L.C. 27, 31 (1981) (\xe2\x80\x9cThe accommodation required is\nnot simply an exchange of concessions or a test of political strength. It is\nan obligation of each branch to make a principled effort to acknowledge,\nand if possible to meet, the legitimate needs of the other branch.\xe2\x80\x9d).\nThe nature of the accommodation required in responding to a con\xc2\xad\ngressional request for information clearly depends on the balance of\ninterests between the Executive and Congress. For its part, Congress\nmust be able to articulate its need for the particular materials \xe2\x80\x94 to\n\xe2\x80\x9cpoint[] to ... specific legislative decisions that cannot responsibly be\nmade without access to materials uniquely contained\xe2\x80\x9d in the presump\xc2\xad\ntively privileged documents (or testimony) it has requested, and to show\nthat the material \xe2\x80\x9cis demonstrably critical to the responsible fulfillment of\nthe Committee\xe2\x80\x99s functions.\xe2\x80\x9d Senate Select Comm, on Presidential\nCampaign Activities v. Nixon, 498 F.2d 725, 731, 733 (D.C. Cir. 1974).\nThe more generalized the executive branch interest in withholding the\ndisputed information, the more likely it is that this interest will yield to a\nspecific, articulated need related to the effective performance by\nCongress of its legislative functions. Conversely, the more specific the\nneed for confidentiality, and the less specific the articulated need of\nCongress for the information, the more likely it is that the Executive\xe2\x80\x99s\nneed for confidentiality will prevail. See Nixon v. Administrator of\nGeneral Services, 433 U.S. 425, 446-55 (1977) (discussion of balance of\n8 President Reagan\xe2\x80\x99s November 4, 1982 Memorandum for the Heads of Executive Departments and\nAgencies on \xe2\x80\x9cProcedures Governing Responses to Congressional Requests for Information\xe2\x80\x9d states:\nThe policy of this Administration is to comply with Congressional requests for information\nto the fullest extent consistent with the constitutional and statutory obligations of the\nExecutive Branch . .. [Ejxecutive privilege will be asserted only in the most compelling cir\xc2\xad\ncumstances, and only after careful review demonstrates that assertion of the privilege is nec\xc2\xad\nessary Historically, good faith negotiations between Congress and the Executive Branch\nhave minimized the need for invoking executive privilege, and this tradition of accommoda\xc2\xad\ntion should continue as the primary means of resolving conflicts between the Branches\nOnly rarely do congressional requests for information result in a subpoena of an executive branch offi\xc2\xad\ncial or in other congressional action. In m ost cases the informal process of negotiation and accommo\xc2\xad\ndation recognized by the courts, and mandated for the executive branch by President Reagan\xe2\x80\x99s 1982\nmemorandum, is sufficient to resolve any dispute. On occasion, however, the process breaks down, and\na subpoena is issued by a congressional committee or subcommittee. At that point, it would be neces\xc2\xad\nsary to consider asking the President to assert executive privilege. Under President Reagan\xe2\x80\x99s memoran\xc2\xad\ndum, executive privilege cannot be asserted vis-a-vis Congress without specific authorization by the\nPresident, based on recommendations made to him by the concerned department head, the Attorney\nGeneral, and the Counsel to the President. We have no reason to believe that President Bush envisions a\ndifferent procedure.\n82\n\n\x0cinterests); United States v. Nixon, 418 U.S. at 707-13 (same); United\nStates v. AT&T, 567 F.2d at 130-33 (same).\nIn light of the limited and general congressional interest in ongoing\ncriminal investigations and the specific and compelling executive branch\ninterest in protecting the confidentiality of such investigations, the exec\xc2\xad\nutive branch has generally declined to make any accommodation for con\xc2\xad\ngressional committees with respect to open cases: that is, it has consis\xc2\xad\ntently refused to provide confidential information. However, on occasion\nafter an investigation has been closed, and after weighing the interests\npresent in the particular case, the executive branch has briefed Congress\non prosecutorial decisions and has disclosed some details of the under\xc2\xad\nlying investigation.9\nIn conclusion, although in the absence of a concrete factual setting we\ncannot analyze the case for withholding any particular document or infor\xc2\xad\nmation in response to a congressional oversight request, we can advise\nthat as a general matter Congress has a limited oversight interest in the\nconduct of an ongoing criminal investigation and the executive branch\nhas a strong interest in preserving the confidentiality of such investiga\xc2\xad\ntions. Accordingly, in light of established executive branch policy and\npractice, and absent extraordinary circumstances, an IG should not pro\xc2\xad\nvide Congress with confidential information concerning an open criminal\ninvestigation.\nII. Congressional Requests Based on the Inspector General Act\nThe second question raised by your opinion request is whether the\nreporting provisions of the Inspector General Act require that IGs provide\nCongress with confidential information on open criminal investigations\nthat is not normally shared with Congress under established executive\nbranch policy and practice with respect to oversight requests. We believe\nthat both the text and legislative history of these provisions demonstrate\nthat they do not impose such a requirement.\n9 Once ail investigation has been closed without further prosecution, some of the considerations previously discussed lose their force Access by Congress to details of closed investigations does not pose\nas substantial a risk that Congress will be a partner in the investigation and prosecution or will otherwise\nseek to influence the outcome of the prosecution, likewise, if no prosecution will result, concerns about\nthe effects of undue pretnal publicity on a jury would disappear. Still, such records are not automatical\xc2\xad\nly disclosed to Congress. Obviously, much of the information in a closed cnminaJ enforcement file \xe2\x80\x94\nsuch as unpublished details of allegations against particular individuals and details that would reveal\nconfidential sources and investigative techniques and methods \xe2\x80\x94 would continue to need protection\nIn addition, the executive branch has a long-term institutional interest in maintaining the confidential\xc2\xad\nity of the prosecutorial decisionmaking process The Supreme Court has recognized that \xe2\x80\x9chuman expe\xc2\xad\nrience teaches that those who expect public dissemination of their remarks may well temper candor with\na concern for appearances and for their own interests to the detriment of the decisionmaking process \xe2\x80\x9d\nUnited States v N ixon , 418 U S at 705. It is therefore important to weigh the potential \xe2\x80\x9cchilling effect\xe2\x80\x9d\nof a disclosure of details of the prosecutorial deliberative process in a closed case against the immediate\nneeds of Congress\n83\n\n\x0cThe Act establishes a number of congressional reporting requirements\nwith respect to the activities of the IGs. Most generally, section 4(a)(5)\nrequires each IG\nto keep the head of [the agency within which his office is\nestablished] and the Congress fully and currently informed,\nby means of the reports required by section 5 and other\xc2\xad\nwise, concerning fraud and other serious problems, abuses,\nand deficiencies relating to the administration of programs\nand operations administered or financed by such [agency],\nto recommend corrective action concerning such prob\xc2\xad\nlems, abuses, and deficiencies, and to report on the\nprogress made in implementing such corrective action.\nSection 5(a) requires each IG to prepare semi-annual reports summariz\xc2\xad\ning the activities of his office, and section 5(b) requires that the head of\nthe IG\xe2\x80\x99s agency submit these reports to the appropriate committees or\nsubcommittees of Congress within 30 days of receiving them. Section\n5(d) requires each IG to\nreport immediately to the head of the [agency] whenever\nthe [IG] becomes aware of particularly serious or flagrant\nproblems, abuses, or deficiencies relating to the adminis\xc2\xad\ntration of programs and operations of such [agency]. The\nhead of the [agency] shall transmit any such report to the\nappropriate committees or subcommittees of Congress\nwithin seven calendar days, together with a report by the\nhead of the agency containing any comments such head\ndeems appropriate.\nFinally, section 5(e) provides in subsection (1) that none of the reporting\nrequirements \xe2\x80\x9cshall be construed to authorize the public disclosure\xe2\x80\x9d of\ncertain information, while also providing in subsection (3) that neither\nthe reporting requirements nor any other provision of the Act \xe2\x80\x9cshall be\nconstrued to authorize or permit the withholding of information from the\nCongress, or from any committee or subcommittee thereof.\xe2\x80\x9d\nIn our judgment, nothing in the text of these provisions provides that\nconfidential law enforcement materials pertaining to ongoing cases must\nbe transmitted to Congress. To the contrary, the statutory scheme set out\nin section 5 of the Act merely envisions that the periodic reports from\neach IG to Congress will be a general \xe2\x80\x9cdescription\xe2\x80\x9d and \xe2\x80\x9csummary\xe2\x80\x9d of the\nwork of the IG. This view of section 5 is supported by the Act\xe2\x80\x99s legislative\nhistory. In proposing the congressional reporting requirements that were\nultimately enacted into law,10 the Senate committee made it clear that it\ndid not contemplate that reports from the IGs would be so specific that\n84\n\n\x0cconfidential investigative information would fall within the scope of the\nreport and, in any event, it was not intended that such information would\nbe required. For example, with respect to section 5(a)(4)\xe2\x80\x99s requirement\nthat semi-annual reports contain \xe2\x80\x9ca summary of matters referred to pros\xc2\xad\necutive authorities and the prosecutions and convictions which have\nresulted,\xe2\x80\x9d the committee indicated:\nBy using the word \xe2\x80\x9csummary\xe2\x80\x9d in subsection (a)(4), the\ncommittee intends that Congress would be given an\noverview of those matters which have been referred to\nprosecutive authorities. It would be sufficient, for instance,\nfor an [IG] at HUD to include in his report the fact that he\nhad referred 230 cases of fraud in FHA programs to the\nJustice Department for further investigation and prosecu\xc2\xad\ntion. It would be highly improper and often a violation of\ndue process for an IG\xe2\x80\x99s report to list the names of those\nunder investigation or to describe them with sufficient pre\xc2\xad\ncision to enable the identities of the targets to be easily\nascertained. However, once prosecutions and convictions\nhave resulted, the IG could certainly list those cases, if he\ndeems such a listing appropriate.\nS. Rep. No. 1071 at 30.\nThe committee noted that section 5(b)\xe2\x80\x99s requirement that semi-annual\nreports be submitted to Congress \xe2\x80\x9ccontemplates that the IG\xe2\x80\x99s reports will\nordinarily be transmitted to Congress by the agency head without alter\xc2\xad\nation or deletion." Id. at 31 (emphasis added). The committee went on to\nstress, however, that\nnothing in this section authorizes or permits an [IG] to dis\xc2\xad\nregard the obligations of law which fall upon all citizens and\nwith special force upon Government officials. The Justice\nDepartment has expressed concern that since an [IG] is to\nreport on matters involving possible violations of criminal\nlaw, his report might contain information relating to the\nidentity of informants, the privacy interest of people under\ninvestigations, or other matters which would impede law\n10 The Act was originally considered by the House of Representatives as H.R. 8588, which contained\nsimilar reporting requires to those of the Senate bill Compare House version, sections 3-4, 124 Cong\nRec. 10,399 (1978), with Senate version, sections 4-5,124 Cong. Rec 32,029-30 (1978). The legislative his\xc2\xad\ntory regarding the House provisions is much less extensive than that for the Senate provisions. See gen\xc2\xad\nerally H.R. Rep. No. 584, 95th Cong., 1st Sess 13-14 (1977) H R 8588 passed the House, but failed in the\nSenate, which considered instead a substitute bill reported from the Senate Committee on Governmental\nAffairs See 124 Cong Rec. 30,949 (1978), S. Rep. No. 1071,95th Cong., 2d Sess (1978) The House accept\xc2\xad\ned the substitute Senate bill and it was enacted into law\n85\n\n\x0cenforcement investigations. /Is noted above, the committee\ndoes not envision that a report by the [IG] would contain\nthis degree of specificity. In any event, however, the intent\nof the legislation is that the [IG] in preparing his reports,\nmust observe the requirements of law which exist today\nunder common Law, statutes, and the Constitution, with\nrespect to law enforcement investigations....\nThe committee recognizes, however, that in rare circum\xc2\xad\nstances the [IG], through inadvertence or design, may\ninclude in his report materials of this sort which should not\nbe disclosed even to the Congress. The inclusion of such\nmaterials in an [IG\xe2\x80\x99s] report may put a conscientious agency\nhead in a serious bind. The obligation of an agency head is\nto help the President \xe2\x80\x9cfaithfully execute the laws.\xe2\x80\x9d Faithful\nexecution of this legislation entails the timely transmittal,\nwithout alteration or deletion, of an [IG\xe2\x80\x99s] report to\nCongress. However, a conflict of responsibilities may\narise when the agency head concludes that the [IG\xe2\x80\x99s]\nreport contains material, disclosure of which is improper\nunder the law. In this kind of rare case, section 5(b) is not\nintended to prohibit the agency head from deleting the\nmaterials in question.n\nId. at 31-32 (emphasis added).12\nThe committee also made it clear that the same principles apply with\nequal force to the requirement of section 5(d) that the IG reports to\nagency heads on \xe2\x80\x9cparticularly serious or flagrant problems\xe2\x80\x9d also be sub\xc2\xad\nmitted to Congress. In stating with respect to this section that \xe2\x80\x9cas in sub\xc2\xad\nsection (b), the agency head has no general authority or right to delete or\nalter certain provisions of the report\xe2\x80\x9d id. at 33, the committee clearly\n11 \xe2\x80\x9cIn the rare cases in which alterations or deletions have been made, the committee envisions that an\nagency head\xe2\x80\x99s comments on an [IG\xe2\x80\x99s] report would indicate to the Congress that alterations or deletions\nhad been made, give a descnption of the materials altered or deleted, and the reasons therefore \xe2\x80\x9d Id at\n32.\n12 In addition to thus stating its intention with respect to the confidentiality of law enforcement infor\xc2\xad\nmation, the committee also expressed its understanding that section 5(b) cannot override executive priv\xc2\xad\nilege with respect to deliberative process information\n[T]he committee is aware that the Supreme Court has, in certain contexts, recognized the\nPresident\xe2\x80\x99s constitutional privilege for confidential communications or for information relat\xc2\xad\ned to the national security, diplomatic affairs, and military secrets Insofar as this privilege\nis constitutionally based, the committee recognizes that subsection 5 (b) cannot override\nit In view o f the uncertain nature o f the law m this area, the committee intends that sub\xc2\xad\nsection 5 (b ) iv ill nei the) accept n o r reject any particular view o f Presidential privilege but\nonly preserve f o r the President the opportunity to assert privilege where he deems it nec\xc2\xad\nessary.\n\nThe committee intends that these questions should be left for resolution on a caseby-case basis as they anse in the course of implementing this legislation\nId. at 32 (emphasis added) (citations omitted)\n86\n\n\x0cimplied that the agency head retained the ability \xe2\x80\x94 as in the \xe2\x80\x9crare case\xe2\x80\x9d\nidentified with respect to subsection (b) \xe2\x80\x94 to delete \xe2\x80\x9cmaterials ... which\nshould not be disclosed even to the Congress.\xe2\x80\x9d Id. at 32.\nConclusion\n\nLong-established executive branch policy and practice, based on con\xc2\xad\nsideration of both Congress\xe2\x80\x99 oversight authority and principles of execu\xc2\xad\ntive privilege, require that in the absence of extraordinary circumstances\nan IG must decline to provide confidential information about an open\ncriminal investigation in response to a request pursuant to Congress\xe2\x80\x99\noversight authority. With respect to congressional requests\xe2\x80\x9ebased on the\nreporting requirements of the Inspector General Act, we similarly con\xc2\xad\nclude that the reporting provisions of the Inspector General Act do not\nrequire IGs to disseminate confidential information pertaining to open\ncriminal investigations.\nD ouglas W. Kmiec\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n87\n\n\x0c'


b'Funding for the Critical Technologies Institute\nT h e D epartm ent o f D efense m ay make funds available to the N ational S cience F oundation o ut\no f m onies appropriated in the D epartm ent o f D efense A ppropriations A ct, 1991, to su p p o rt\nthe activities o f the C ritical Technologies Institute during the 1992 fiscal year.\n\nMay 12, 1992\nM e m o r a n d u m O p in io n f o r t h e A c t in g G e n e r a l C o u n s e l\nO f f ic e o f M a n a g e m e n t a n d B u d g e t\n\nThis responds to your request for our opinion whether the Department of\nDefense (\xe2\x80\x9cDoD\xe2\x80\x9d) may make $5 million available to the Director of the Na\xc2\xad\ntional Science Foundation (\xe2\x80\x9cNSF\xe2\x80\x9d) out of monies appropriated in the\nDepartment of Defense Appropriations Act, 1991, Pub. L. No. 101-511, tit.\nIV, 104 Stat. 1856, 1870 (1990) (\xe2\x80\x9cFY 91 Appropriations Act\xe2\x80\x9d). The funds\nwould be used to support the activities of the Critical Technologies Institute\n(\xe2\x80\x9cthe Institute\xe2\x80\x9d) during the current fiscal year. Although you have con\xc2\xad\ncluded that DoD may make those monies available for this purpose,1 DoD\ndisagrees.2 We conclude that DoD may take those monies available for\nfunding the activities of the Institute.\nI.\nCongress established the Institute in the National Defense Authorization\nAct for Fiscal Year 1991, Pub. L. No. 101-510, \xc2\xa7 822, 104 Stat. 1485, 1598\n(1990) (\xe2\x80\x9cFY 91 Authorization Act\xe2\x80\x9d) (codified as amended at 42 U.S.C. \xc2\xa7\n6686). The Institute is \xe2\x80\x9ca federally funded research and development center,\xe2\x80\x9d\n42 U.S.C. \xc2\xa7 6686(a), with a variety of duties, including the assembly and\nanalysis of information \xe2\x80\x9cregarding significant developments and trends in\ntechnology research and development in the United States and abroad,\xe2\x80\x9d and\nthe provision of technical support and assistance to presidential science and\n1 S e e Memorandum for Timothy E. Flanigan, Acting Assistant Attorney General, Office of Legal C oun\xc2\xad\nsel, from Robert G. Damus, Acting General Counsel, Office of Management and Budget (\xe2\x80\x9cOM B\xe2\x80\x9d) (Apr. 23,\n1992) (\xe2\x80\x9cOMB M emorandum\xe2\x80\x9d ).\n2S e e M emorandum for Douglas R. Cox, Deputy Assistant Attorney General, Office o f Legal Counsel,\nfrom Manuel Briskin, Deputy General Counsel (Fiscal & Inspector General), DoD (Apr. 21, 1992)\n(\xe2\x80\x9cDoD M emorandum\xe2\x80\x9d).\n\n77\n\n\x0ctechnology advisers. Id. \xc2\xa7 6686(d)(1) and (4)(A). Although Congress ini\xc2\xad\ntially provided that the Office of Science and Technology Policy (\xe2\x80\x9cOSTP\xe2\x80\x9d)\nwould serve as the Institute\xe2\x80\x99s sponsoring agency, see FY 91 Authorization\nAct, \xc2\xa7 822(e)(1), 104 Stat. at 1599, a 1991 amendment provided that the\nInstitute would operate under a sponsorship agreement with NSF. See Na\xc2\xad\ntional Defense Authorization Act for Fiscal Years 1992 and 1993, Pub. L.\nNo. 102-190, \xc2\xa7 822(c), 105 Stat. 1290, 1435 (1991) (\xe2\x80\x9cFY 92 Authorization\nAct\xe2\x80\x9d) (codified at 42 U.S.C. \xc2\xa7 6686(g)). NSF is an independent entity in the\nexecutive branch whose responsibilities include supporting scientific and en\xc2\xad\ngineering research, maintaining a \xe2\x80\x9cclearinghouse for the collection,\ninterpretation, and analysis of data on scientific and engineering resources,\xe2\x80\x9d\nand providing a source of information for policy formulation by the Federal\nGovernment. 42 U.S.C. \xc2\xa7\xc2\xa7 1861, 1862(a).\nIn the FY 91 Authorization Act, Congress authorized $5 million, out of\nDoD funds, for the Institute\xe2\x80\x99s activities during its first fiscal year of opera\xc2\xad\ntion. FY 91 Authorization Act, \xc2\xa7 822(g)(1), 104 Stat. at 1600.3 In the FY\n91 Appropriations Act, Congress appropriated a lump-sum of more than $9.1\nbillion for DoD research and development activities; those monies were made\navailable through fiscal year 1992. FY 91 Appropriations Act, tit. IV, 104\nStat. at 1870.4 The FY 91 Appropriations Act did not specifically refer to\nthe Institute as one of the activities or projects covered by the lump-sum\nappropriation.\nThe Institute did not begin operations in fiscal year 1991 and, as a result,\nno funds were obligated for its activities during that fiscal year. OMB\nMemorandum at 5. Nonetheless, in the DoD appropriations act for fiscal\nyear 1992, Congress assigned new responsibilities to the Institute. See De\xc2\xad\npartment of Defense Appropriations Act, 1992, Pub. L. No. 102-172, \xc2\xa7 8112,\n105 Stat. 1150, 1201 (1991) (\xe2\x80\x9cFY 92 Appropriations Act\xe2\x80\x9d). Shortly thereaf\xc2\xad\nter, Congress amended the Institute\xe2\x80\x99s authorizing legislation. See FY 92\nAuthorization Act, \xc2\xa7 822, 105 Stat. at 1433. The FY 92 Authorization Act\naltered the Institute\xe2\x80\x99s structure and revised its duties somewhat, and also\namended its funding authorization. The amended funding provision, at the\ncenter of OMB\xe2\x80\x99s dispute with DoD, reads as follows:\nTo the extent provided in appropriations Acts, the Secretary of\nDefense shall make available to the Director of the National\n\xe2\x80\x99 Section 822(g)(1) provided: "Subject to such limitations as may be provided in appropriation Acts,\nthe Secretary o f D efense shall make available to the Director of the Office o f Science and Technology\nPolicy, out o f funds available for the Department of Defense, $5,000,000 for funding the activities o f the\nInstitute in the first fiscal year in which the Institute begins operations.\xe2\x80\x9d\n4Congress appropriated \xe2\x80\x9c [f]or expenses o f activities and agencies of the Department o f Defense (other\nthan the m ilitary departm ents), necessary for basic and applied scientific research, developm ent, test\nand evaluation; advanced research projects as may be designated and determined by the Secretary o f\nD efense, pursuant to law; maintenance, rehabilitation, lease, and operation of facilities and equipment,\nas authorized by law; $9,115,699,000, to remain available for obligation until September 30, 1992.\xe2\x80\x9d\n104 Stat. at 1870.\n\n78\n\n\x0cScience Foundation, out of funds appropriated for fiscal year\n1991, $5,000,000 for funding the activities of the Institute.\nId. \xc2\xa7 822(d)(1), 105 Stat. at 1435. The FY 92 Authorization Act also autho\xc2\xad\nrized the transfer of funds previously \xe2\x80\x9cappropriated to any department or\nagency for\xe2\x80\x9d the Institute to NSF for purposes of carrying out the Institute\xe2\x80\x99s\nactivities. Id. \xc2\xa7 822(d)(3), 105 Stat. at 1435.5\nII.\nYou ask whether DoD may make available to NSF, out of monies appro\xc2\xad\npriated by the FY 91 Appropriations Act, $5 million for funding the operations\nof the Institute during the current fiscal year. OMB and DoD agree that the\nInstitute, a \xe2\x80\x9cresearch and development center\xe2\x80\x9d with wide-ranging responsi\xc2\xad\nbility for collecting and analyzing science and technology data, 42 U.S.C.\n\xc2\xa7 6686(a), (d), qualifies as a proper research and development activity for\npurposes of the FY 91 Appropriations Act. OMB and DoD further agree\nthat $5 million of DoD\xe2\x80\x99s FY 91 appropriations was available to fund the\nInstitute prior to enactment of the FY 92 Authorization Act. OMB Memo\xc2\xad\nrandum at 11-13; DoD Memorandum at 2. The sole issue for our resolution,\ntherefore, is whether the FY 92 Authorization Act created a new requirement\nfor a more specific appropriation for the Institute than had been made in the\nFY 91 Appropriation Act. We believe it did not. Accordingly, we conclude\nthat DoD may make the funds available to NSF.\nIt is axiomatic that an agency must have legal authority to perform its\nfunctions and, if it is to spend public monies, appropriated funds. An agency\xe2\x80\x99s\nlegal power typically derives from its \xe2\x80\x9corganic\xe2\x80\x9d or \xe2\x80\x9cenabling\xe2\x80\x9d statute. I U.S.\nGeneral Accounting Office, Principles o f Federal Appropriations Law 2-33\n(2d ed. 1991) (\xe2\x80\x9cPrinciples 2d"). Its appropriated funds of course must have\nbeen drawn from the Treasury pursuant to a duly enacted statute in accor\xc2\xad\ndance with Article I, Section 9 of the Constitution, which provides that \xe2\x80\x9c[n]o\nmoney shall be drawn from the Treasury, but in Consequence of Appropria\xc2\xad\ntions made by Law.\xe2\x80\x9d\nIn addition to legislation appropriating monies, Congress frequently enacts\nbudget \xe2\x80\x9cauthorization\xe2\x80\x9d legislation, which, as the name implies, authorizes Con\xc2\xad\ngress to appropriate monies for described purposes. Principles 2d at 2-33. \xe2\x80\x9cAn\nauthorization act is basically a directive to the Congress itself which Congress is\nfree to follow or alter (up or down) in the subsequent appropriation act.\xe2\x80\x9d Id. at\n2-35. Congress usually passes authorization legislation before enacting appro\xc2\xad\npriations legislation, but sometimes the order is reversed. Id. at 2-48.\n5 In the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agen\xc2\xad\ncies Appropriations Act, 1992, Congress had appropriated roughly $6,000,000 for necessary expenses\no f OSTP. Pub. L. No. 102-139, tit. Ill, 105 Stat. 736, 766 (1991). The legislative history o f this act\nsuggests that Congress intended roughly $1.6 million in additional funds for the Institute. H.R. Conf.\nRep. No. 226, 102d Cong., 1st Sess. 48-49 (1991).\n\n79\n\n\x0cIt is also axiomatic that Congress may make a lump-sum appropriation\ncovering a wide range of activities without specifying precisely the objects\nto which the appropriation may be applied. See TVA v. Hill, 437 U.S. 153,\n164 n.14 (1978) (noting that TVA projects are funded from lump-sum appro\xc2\xad\npriations \xe2\x80\x9cwithout the need for specific congressional authorization\xe2\x80\x9d);\nInternational Union, United Auto., Aerospace & Agric. Implement Workers\no f America v. Donovan, 746 F.2d 855, 861 (D.C. Cir. 1984) (Scalia, J.) (\xe2\x80\x9c[a]\nlump-sum appropriation leaves it to the recipient agency (as a matter of law,\nat least) to distribute the funds among some or all of the permissible objects\nas it sees fit\xe2\x80\x9d) (footnote omitted), cert, denied, 474 U.S. 825 (1985). As we\nadvised OMB more than a decade ago, \xe2\x80\x9c[i]f the activity or function is one\nwhich Congress has elsewhere given the agency authority to perform, its\nfunding does not depend upon its being singled out for specific mention\neach year in the appropriation progress.\xe2\x80\x9d Letter for Michael J. Horowitz,\nCounsel to the Director, OMB, from Theodore B. Olson, Assistant Attorney\nGeneral, Office of Legal Counsel, at 3-4 (Sept. 18, 1981). A rule requiring\ngreater specificity in appropriations would create extreme obstacles for the\nfunctioning of the Federal Government. See id. at 4; U.S. General Account\xc2\xad\ning Office, Principles of Federal Appropriations Law 5-94 (1st ed. 1982)\n(\xe2\x80\x9cPrinciples 1st"). As the General Accounting Office has recognized, \xe2\x80\x9cas\nthe Federal budget has grown in both size and complexity, a lump-sum ap\xc2\xad\nproach has become a virtual necessity. . . . [A]n appropriation act for an\nestablishment the size of the Defense Department structured solely on a\nline-item basis would rival the telephone directory in bulk.\xe2\x80\x9d Id.\nApplying these principles here, we conclude that DoD may make the\nmonies in question available to NSF for purposes of funding the Institute\nduring the current fiscal year. In the FY 91 Appropriations Act, Congress\nappropriated a lump-sum of more than $9.1 billion, available for obligation\nthrough fiscal year 1992, for research and development activities by DoD.\nFY 91 Appropriations Act, tit. IV, 104 Stat. at 1870. See supra p. 78. The\nFY 91 Authorization Act clearly contemplated that DoD could make $5 mil\xc2\xad\nlion of its $9.1 billion research and development appropriation available for\nthe Institute. The act states that the Secretary of Defense \xe2\x80\x9cshall make avail\xc2\xad\nable\xe2\x80\x9d the funds in the first fiscal year that the Institute begins its operations.\nFY 91 Authorization Act, \xc2\xa7 822(g)(1), 104 Stat. at 1600. This direction is\nqualified only with the phrase \xe2\x80\x9c[s]ubject to such limitations as may be pro\xc2\xad\nvided in appropriation Acts.\xe2\x80\x9d Id. The FY 91 Appropriations Act did not\nmention the Institute and contained no applicable limitations. Therefore, in\nlight of the general principles of appropriation law discussed above, the $5\nmillion was available for the Institute.\nThe legislative history, although not controlling, supports this understand\xc2\xad\ning of the FY 91 statutes. See Statement on Signing the Department of\nDefense Appropriations Act, 1991, II Pub. Papers of George Bush 1558 (1990)\n(distinguishing between an unenacted annex to the conference report and the\nlaw itself). A table in the conference report accompanying the FY 91\n80\n\n\x0cAppropriations Act demonstrates that the conferees envisioned that DoD would\nexpend $5 million of the $9.1 billion lump-sum appropriation for research\nand development on the Institute. See H.R. Conf. Rep. No. 938, 101st Cong.,\n2d Sess. 116 (1990). The report prepared by the Senate Committee on Ap\xc2\xad\npropriations demonstrates the same understanding. See S. Rep. No. 521,\n101st Cong., 2d Sess. 235 (1990) (\xe2\x80\x9c[a]s approved by the full Senate, the\nCommittee adds $5,000,000 to the budget for\xe2\x80\x9d the Institute).6\nAlthough OMB and DoD do not dispute that the FY 91 Authorization\nAct, which authorized appropriation of funds for the Institute \xe2\x80\x9c[s]ubject to\nsuch limitations as may be provided in appropriation Acts,\xe2\x80\x9d FY 91 Authori\xc2\xad\nzation Act, \xc2\xa7 822(g)(1), 104 Stat. at 1600, authorized appropriation of the\nfunds for the Institute despite the lack of a specific line-item appropriation,\nDoD contends that amendments made by the FY 92 Authorization Act now\nprohibit it from making those monies available to NSF. DoD Memorandum\nat 1-2. Among other changes, the FY 92 Authorization Act changed the\nintroductory phrase of the funding provision to read: \xe2\x80\x9c[t]o the extent pro\xc2\xad\nvided in appropriations Acts.\xe2\x80\x9d FY 92 Authorization Act, \xc2\xa7 822(d)(1), 105\nStat. at 1150, 1435, quoted supra pp. 78-79. DoD argues that phrase re\xc2\xad\nquires a specific appropriation for the Institute. As a consequence, DoD\nconcludes that neither the lump-sum appropriation for research and develop\xc2\xad\nment activities in the FY 91 Appropriations Act, nor the earmarking table in\nthe 1991 conference committee report, is sufficient to provide DoD with the\nauthority to make the $5 million available to NSF. DoD Memorandum at 2.\nThe FY 92 Appropriations Act makes no specific reference to the Institute.\nWe disagree with DoD that the text of the FY 92 Authorization Act re\xc2\xad\nquires a specific line-item appropriation. The FY 92 Authorization Act\nauthorized $5 million for the Institute \xe2\x80\x9c[t]o the extent provided in appropria\xc2\xad\ntions Acts.\xe2\x80\x9d Although to \xe2\x80\x9cprovide\xe2\x80\x9d may mean, as DoD apparently interprets\nit, \xe2\x80\x9cto make a proviso or stipulation,\xe2\x80\x9d Webster\xe2\x80\x99s Ninth New Collegiate Dic\xc2\xad\ntionary 948 (1986), it may also mean, more generally, \xe2\x80\x9cto make preparation\nto meet a need.\xe2\x80\x9d Id. The FY 92 Authorization Act authorized the funds\n\xe2\x80\x9c[t]o the extent provided in appropriations Acts,\xe2\x80\x9d and the FY 91 Appropria\xc2\xad\ntions Act, we believe, so \xe2\x80\x9cprovided\xe2\x80\x9d \xe2\x80\x94 albeit in general, not specific, terms.\nAs we have explained, it is a fundamental principle of appropriations law,\n\xe2\x80\x98 Two events following enactment of the FY 91 statutes are suggestive. In considering the FY 92\nAppropriations Act, the Senate adopted language, later deleted without explanation by the conference\ncom m ittee, expressly stating \xe2\x80\x9c[tjhat of the funds appropriated for fiscal year 1991 under the heading\n\xe2\x80\x98Research, Development, Test and Evaluation, Defense Agencies,\' $5,000,000 shall be obligated for the\nCritical Technologies Institute within 90 days after enactment of [the] Act.\xe2\x80\x9d 132 Cong. Rec. 13,442\n(daily ed. Sept. 23, 1991). S ee a ls o S . Rep. No. 154, 102d Cong., 1st Sess. 337 (1992). In addition, the\nHouse Committee on Appropriations is currently considering a proposal to rescind, from monies made\navailable under the FY 91 Appropriations Act $4.9 million from the Institute\xe2\x80\x99s funding. House Comm,\non Appropriations, 102d Cong., 2d Sess. (Comm. Print 1992). Both suggest a clear understanding on\nthe part o f Congress that the $5 million had been appropriated for the Institute, although we accord this\n\xe2\x80\x9csubsequent legislative history\xe2\x80\x9d minimal weight. See C o n su m er Prod. S a fe ty C om m \'n v. G T E S ylvania,\nInc., 447 U S. 102, 118 n.13 (1980); Sullivan v. F inkelstein, 496 U.S. 617, 631-32 (1990) (Scalia, J.,\nconcurring in part).\n\n81\n\n\x0crepeatedly enunciated by the Comptroller General, that Congress is not re\xc2\xad\nquired to enact a specific appropriation for a program. See Principles 1st at\n5-94 to 5-103 (citing opinions). A lump-sum appropriation covering the\ngeneral category is sufficient. See supra p. 80. There is nothing in the text\nof section 822(d)(1) that alters this principle.7\nSuch an interpretation does not, as DoD claims, render the introductory\nclause of section 822(d)(1) a nullity. First, the statute would not have \xe2\x80\x9cex\xc2\xad\nactly the same meaning\xe2\x80\x9d with or without the introductory clause. Cf. DOD\nMemorandum at 3. The introductory clause makes clear that the act merely\nauthorizes funds, and that a further appropriation is required. This reading\nis thus consistent with the distinction between authorization and appropria\xc2\xad\ntion legislation. See supra p. 79. Second, such an interpretation does not\nrender \xe2\x80\x9cmeaningless\xe2\x80\x9d the change in the introductory clause from the FY 91\nAuthorization Act to the FY 92 Authorization Act. Cf. DoD Memorandum at\n3. DoD is correct that section 822(d)(1), referring as it did to the 1991\nappropriation, did not contemplate a future or concurrent appropriation. It is\nfor just this reason, however, that the change in locution makes sense. The\nFY 91 Authorization Act was considered in Congress at the same time as the\nFY 91 Appropriations Act, and both passed Congress on the same day. There\xc2\xad\nfore, when Congress made the authorization \xe2\x80\x9c[sjubject to such limitations as\nmay be provided in appropriation Acts,\xe2\x80\x9d it was unclear whether any such\nlimitations would be imposed. By contrast, section 822(d)(1) in the FY 92\nAuthorization Act specifically referred back to the previous year\xe2\x80\x99s appropria\xc2\xad\ntions. Hence in passing the FY 92 Authorization Act, Congress knew that\nthe relevant appropriations act, i.e., the FY 91 Appropriations Act, contained\nno \xe2\x80\x9csuch limitations.\xe2\x80\x9d Therefore, although it made sense to condition the\nauthorization in the fall of 1990 on \xe2\x80\x9csuch limitations,\xe2\x80\x9d not knowing whether\nthere would be any, it would have been illogical to repeat the phrase in the\namended authorization in the fall of 1991. The substituted language reflects\nthis fact.\nBy contrast, DoD\xe2\x80\x99s interpretation of the introductory clause would render\nall of section 822(d)(1) a nullity. The appropriation for fiscal year 1991, the\nonly appropriation to which section 822(d)(1) refers, had been enacted nearly\na year before the FY 92 Authorization Act, and without a specific reference\nto the Institute. As a consequence, DoD\xe2\x80\x99s insistence on a specific appropria\xc2\xad\ntion would eliminate the availability of the funds altogether: section 822(d)(1)\nwould command the Secretary of Defense to make available funds that the\nsection, by its terms, simultaneously would render unavailable. Under DoD\xe2\x80\x99s\ninterpretation, Congress would have enacted an internally inconsistent provi\xc2\xad\nsion with no operative effect. Of course, it is fundamental that a statute\n7DoD suggests that had Congress meant \xe2\x80\x9cwithin the amounts provided in an appropriation A c t/\' it\ncould have said so. DoD Memorandum at 2. However, Congress could have just as easily stated \xe2\x80\x9cto the\nextent s p e c ifie d in appropriations Acts\xe2\x80\x9d o r even more simply achieved the result that DoD argues it\nintended -- prohibiting the use o f the 1991 appropriation for the Institute \xe2\x80\x94 by doing so expressly. See\nOM B M em orandum at 16.\n\n82\n\n\x0cmust be construed, if possible, so that no part of it is made inoperative or\nsuperfluous. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,\n358 (1991); United States v. Menasche, 348 U.S. 528, 538-39 (1955); 2A\nNorman J. Singer, Sutherland on Statutes and Statutory Construction \xc2\xa7 46.06\n(5th ed. 1992).\nFurther, DoD suggests that the \xe2\x80\x9c[t]o the extent provided\xe2\x80\x9d clause elimi\xc2\xad\nnated the funds that DoD concedes were available under the FY 91 Acts,\nrelying on Comptroller General and Office of Legal Counsel opinions that\nconcern a similar phrase in section 207 of the Equal Access to Justice Act\n(\xe2\x80\x9cEAJA\xe2\x80\x9d), 5 U.S.C. \xc2\xa7 504 note.8 DoD suggests that those opinions support\nthe contention that the phrase \xe2\x80\x9c[t]o the extent provided in appropriations Acts\xe2\x80\x9d\nrequires a specific appropriation for the Institute. DoD Memorandum at 3.\nThat supposition is rebutted by the opinions themselves. First, the text of\nsection 207 of EAJA presents a significantly different question of interpreta\xc2\xad\ntion than the provision at issue here. Section 207 states that payment of\ncertain judgments is authorized \xe2\x80\x9conly to the extent and in such amounts as\nare provided in advance in appropriation Acts.\xe2\x80\x9d The limiting clause in sec\xc2\xad\ntion 207 does not read, as the present statute does, \xe2\x80\x9cto the extent provided\nin\xe2\x80\x9d appropriations acts, but rather \xe2\x80\x9cto the extent and in such amounts as are\nprovided . . . in appropriations Acts.\xe2\x80\x9d (Emphasis supplied). That additional\nphrase certainly requires a greater degree of precision than \xe2\x80\x9cto the extent\nprovided\xe2\x80\x9d would alone, so that even if section 207 requires a specific lineitem appropriation, the provision at issue here would not necessarily require\nthe same.\nSecond, the \xe2\x80\x9cto the extent . . . provided\xe2\x80\x9d clause in section 207 of EAJA\ndoes not, as interpreted in the cited opinions and others, require a specific\nline-item appropriation. As those opinions explain, the concern motivating\nsection 207\xe2\x80\x99s clause was not whether a line-item appropriation rather than a\nlump-sum appropriation was required, but instead whether an appropriation\nwas necessary at all. Section 207 was prompted by an effort on the House\nfloor to have the EAJA bill ruled out of order because it contained appro\xc2\xad\npriations, in violation of House rules. Section 207, and especially its \xe2\x80\x9cto the\nextent . . . provided\xe2\x80\x9d language, was added to make clear that the bill merely\nauthorized funds, but did not appropriate them. Therefore, funds previously\nappropriated to pay certain judgments could not be utilized to pay other fees\nand judgments for which appropriations were authorized by the bill without\n\xe2\x80\x9cadditional congressional action in the form of legislation.\xe2\x80\x9d Olson Memo\xc2\xad\nrandum, 6 Op. O.L.C. at 209.9 The Comptroller General reached essentially\nthe same conclusion.10 See 62 Comp. Gen. at 698; 63 Comp. Gen. at 263.\n\' See DoD Memorandum at 3 (citing 63 Comp. Gen. 260 (1984); 62 Comp. Gen. 692 (1983); and\nP a ym en t o f A tto rn ey Fee Aw ards A g a in st the U nited States U nder 28 U .S.C. \xc2\xa7 2412(b), 7 Op. O.L.C. 180\n(1983). S e e also F u n d in g o f A tto rn e y Fee Aw ards U nder th e E q u a l A c c e ss to J u stice A c t, 6 Op. O.L.C.\n204 (1982) (\xe2\x80\x9cOlson Memorandum\xe2\x80\x9d).\n9 Although the O lson M emorandum did suggest that a specific appropriation or an am endm ent o f\nsection 207 would be sufficient, 6 Op. O.L.C. at 209 n.10, it did not state that such actions were the\nContinued\n\n83\n\n\x0cDoD also cites an unpublished decision of the Comptroller General sug\xc2\xad\ngesting that statutory language authorizing payments \xe2\x80\x98\xe2\x80\x9cto the extent provided\nin appropriations acts\xe2\x80\x99\xe2\x80\x9d in another statute requires a \xe2\x80\x9cspecific reference to\nthe payments in an appropriation act.\xe2\x80\x9d Memorandum from the Comptroller\nGeneral to the Honorable Edolphus Towns, U.S. House of Representatives,\nNo. B-230775, 1988 WL 227669 at 1 (C.G. 1988)." This decision seems\ninconsistent with the principles discussed in other GAO publications, see\nsupra p. 79, the Comptroller General opinions concerning EAJA, discussed\nabove, and other Comptroller General decisions. See, e.g., Matter of Depart\xc2\xad\nment of Transportation \xe2\x80\x94 Allocation of Lump-Sum Appropriation for Pipeline\nSafety Programs, No. B-222853, 1987 WL 102908 (C.G. 1987). The deci\xc2\xad\nsion cited by DoD may be explained by a rather strong indication in the\nlegislative history of the act at issue in that decision that Congress had in\xc2\xad\ntended to exclude the funds in question from the applicable lump-sum\nappropriation. In any event, as noted above, see supra note 10, we are not\nbound by decisions of the Comptroller General.\n\nCONCLUSION\nWe conclude that pursuant to the statutory authorities DoD may make $5\nmillion of monies appropriated to DoD by the FY 91 Appropriations Act\navailable for funding the activities of the Institute during the current fiscal\nyear.\nDOUGLAS R. COX\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x99(....continued)\nexclusive m eans to accom plish that purpose, nor was it addressed to that issue.\n\xe2\x80\x98\xe2\x80\x9cD ecisions o f the Com ptroller General, an agent of Congress, are o f course not binding on the execu\xc2\xad\ntive branch. S e e M em orandum for Donald B. Ayer, Deputy Attorney General, from J. Michael Luttig,\nPrincipal D eputy A ssistant Attorney General, Office o f Legal Counsel, R e: D ep a rtm en t o f E nergy\nR e q u e s t to U se th e J u d g m e n t Fund fo r S e ttle m en t o f F e rn a ld L itigation at 8 (Dec. 18, 1989). Such\nopinions are often instructive, however, on issues of appropriations law.\n"D o D cites this unpublished decision in support of w hat DoD asserts is its consistent practice of\ninterpreting the phrase \xe2\x80\x9cto the extent provided in an appropriation act" to require a specific appropria\xc2\xad\ntion. We do not here address whether such an interpretation would be correct in other circum stances,\nfor exam ple in the absence o f authorization and a previous appropriation made for the same purpose.\nObviously, the phrase m ust be read in context. See, e .g ., M cC arthy v. Bronson, 500 U.S. 136, 139\n(1991) (\xe2\x80\x9c [S]tatutory language must always be read in its proper context. \xe2\x80\x98In ascertaining the plain m ean\xc2\xad\ning o f [a] statute, the court m ust look to the particular statutory language at issue, as well as the language\nand design o f the statute as a whole.\' K M a r t C orp. v. C artier, Inc., 486 U.S. 281, 291 (1988)."). In any\nevent, w e address today only the specific questions posed by the Institute legislation.\n\n84\n\n\x0c'