b"Congressional Disapproval of AWACS Arms Sale\nT he provision in \xc2\xa7 36(b) of the Arms Export Control A ct for congressional disapproval\nby concurrent resolution o f a proposed sale o f military equipment is unconstitutional\nunder the Presentation Clauses o f the Constitution; since a resolution o f disapproval\nunder \xc2\xa7 36(b) has the force and effect o f law, the President must be given the opportu\xc2\xad\nnity to approve or veto such congressional action.\nT he legislative veto in \xc2\xa7 36(b) impermissibly intrudes on the President\xe2\x80\x99s authority to\nexecute the laws and to conduct the N ation\xe2\x80\x99s foreign relations, in violation of the\nprinciple o f separation of powers.\nT he legislative veto in \xc2\xa7 36(b) is severable from the other provisions of the Arms Export\nC ontrol A ct, since nothing in the legislative history o f that A ct indicates an intent to\ndeprive the President altogether o f his pow er to transact foreign military sales.\nT he \xe2\x80\x9creport-and-wait\xe2\x80\x9d provision in \xc2\xa7 36(b), w hich requires that the President report arms\nsales to the Congress and delay the transaction for a 30-day period pending congres\xc2\xad\nsional action to disapprove th e sale through the enactment o f legislation, is not uncon\xc2\xad\nstitutional.\nT he President could, consistent with the longstanding position of the Executive Branch\nand w ith the express statements of his tw o immediate predecessors, choose to treat a\ncongressional resolution of disapproval under \xc2\xa7 36(b) as a legal nullity. Alternatively,\nthe President could avoid th e necessity to submit a proposed arms sale for congres\xc2\xad\nsional review by invoking th e emergency provision o f \xc2\xa7 36(b), o r by making a finding\nthat the sale is vital to the national security interests o f the United States under the\nInternational Security and Developm ent Cooperation A ct of 1980.\n\nOctober 28, 1981\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nOn October 1, 1981, the President transmitted to Congress a certifica\xc2\xad\ntion of intent to offer certain military equipment, including Airborne\nWarning and Control System (AWACS) aircraft, to the government of\nSaudi Arabia. Section 36(b) of the Arms Export Control Act, 22 U.S.\nC. \xc2\xa7 2776(b) (1976 and Supp. IV 1980), provides that the letter of offer\nshall not be issued \xe2\x80\x9cif the Congress, within thirty calendar days after\nreceiving such certification, adopts a concurrent resolution stating that\nit objects to the proposed sale.\xe2\x80\x9d The House of Representatives has\nalready voted to disapprove the sale, and there is significant possibility\nthat the Senate will also adopt a resolution of disapproval. This memo\xc2\xad\nrandum discusses several theories under which we believe the President\ncould sell the equipment to Saudi Arabia notwithstanding the adoption\nby Congress of a concurrent resolution disapproving the sale.\n308\n\n\x0cI. Constitutional Invalidity of the Legislative Action\n\nThis Administration, like all previous administrations since 1934, has\ntaken the position that so-called legislative vetoes which interfere with\nthe President\xe2\x80\x99s constitutional responsibilities are unconstitutional. We\nbelieve that \xc2\xa7 36(b) is such a provision. It purports to authorize con\xc2\xad\ngressional action having the force and effect of legislation without\nproviding for presentation to the President for his approval or veto, as\nrequired by Article I, \xc2\xa7 7, clauses 2 and 3 of the Constitution. More\xc2\xad\nover, \xc2\xa7 36(b) represents a particularly severe congressional intrusion\ninto the prerogatives vested in the President by the Constitution to\nexecute the law and to conduct the Nation\xe2\x80\x99s foreign relations.\nFor these reasons, we believe that the President would have discre\xc2\xad\ntion to proceed with the proposed sale despite a congressional veto. Of\ncourse, the President could, as a matter of policy, determine not to\nissue the letter of offer in view of the congressional expression of\ndisapproval.\nA. History o f \xc2\xa7 36(b)\n\nEvery President who has commented on \xc2\xa7 36(b) has strongly op\xc2\xad\nposed its provision for a congressional veto of arms sales to foreign\ngovernments. The Foreign Military Sales Act of 1968, Pub. L. No. 90629, 82 Stat. 1320, gave the President broad discretion to sell defense\narticles and services to friendly countries for their internal security,\nself-defense, and other needs. There was no provision for congressional\ndisapproval of proposed sales. The predecessor of \xc2\xa7 36(b) was first\nenacted in 1974 as part of omnibus foreign assistance legislation. For\xc2\xad\neign Assistance Act of 1974, Pub. L. No. 93-559, \xc2\xa745, 88 Stat. 1795,\n1814. President Ford signed the legislation without commenting on the\ncongressional disapproval provision. 11 Weekly Comp. Pres. Doc. 3\n(Dec. 30, 1974).\nTwo years later, President Ford vetoed a bill re-enacting the amend\xc2\xad\nment, modifying it in several minor respects, and incorporating further\nlegislative veto provisions. President Ford stated that the congressional\nveto provisions of the bill would erode \xe2\x80\x9cthe basic distinction between\nLegislative and Executive functions\xe2\x80\x9d :\nSuch legislation would pose a serious threat to our system\nof government, and would forge impermissible shackles\non the President\xe2\x80\x99s ability to carry out the laws and con\xc2\xad\nduct the foreign relations of the United States. The Presi\xc2\xad\ndent cannot function effectively in domestic matters, and\nspeak for the nation authoritatively in foreign affairs, if his\ndecisions under authority previously conferred can be re\xc2\xad\nversed by a bare majority of the Congress. Also, the\nattempt of Congress to become a virtual co-administrator\n309\n\n\x0cin operational decisions would seriously detract it from its\nproper legislative role. Inefficiency, delay, and uncertainty\nin the management of our nation\xe2\x80\x99s foreign affairs would\neventually follow.\n12 Weekly Comp. Pres. Doc. 828, 829 (May 7, 1976).\nThereafter, when Congress presented to him a revised version of the\nbill which eliminated several congressional veto provisions, President\nFord signed it into law but specifically stated his reservations about the\nremaining veto provision in \xc2\xa7 36(b). The President stated:\nI am especially pleased to note that with one exception\nthe constitutionally objectionable features of [the bill],\nwhereby authority conferred on the President by law\ncould be rescinded by the adoption of a concurrent reso\xc2\xad\nlution by the Congress, have all been deleted. . . . The\nmanifest incompatibility of such provisions with the ex\xc2\xad\npress requirements of the Constitution that legislative\nmeasures having the force and effect of law be presented\nto the President for approval, and if disapproved, be\npassed by the requisite two-thirds majority of both Houses\nwas perhaps the single most serious defect of the previous\nbill and one which went well beyond security assistance\nand foreign affairs in its implications. Moreover, such\nprovisions would have purported to involve the Congress\nin the performance of day-to-day executive functions in\nderogation of the principle of separation of powers, result\xc2\xad\ning in the erosion of the fundamental constitutional dis\xc2\xad\ntinction between the role of the , Congress in enacting\nlegislation and the role of the Executive in carrying it out.\nThe one exception to this laudable action is the reten\xc2\xad\ntion . . . of the \xe2\x80\x98legislative veto\xe2\x80\x99 provision regarding\nmajor governmental sales of military equipment and serv\xc2\xad\nices. This is not a new provision, but has been in the law\nsince 1974. To date, no concurrent resolution of disap\xc2\xad\nproval under section 36(b) has been adopted, and the\nconstitutional question has not been raised directly. Al\xc2\xad\nthough I am accepting [the bill] with this provision in\xc2\xad\ncluded, I reserve my position on its constitutionality if the\nprovision should ever become operative.\n12 Weekly Comp. Pres. Doc. 1104, 1105 (July 1, 1976).\nPresident Carter expressed similar views when an enrolled bill enti\xc2\xad\ntled the \xe2\x80\x9cInternational Security Assistance Act of 1977\xe2\x80\x9d was presented\nto him for signature. That bill amended the Arms Export Control Act\nto apply the \xc2\xa7 36(b) veto procedure to certain other transactions and to\nadd a congressional veto to third-party transfers. Pub. L. No. 95-92,\n310\n\n\x0c\xc2\xa7\xc2\xa7 16, 20, 91 Stat. 614, 622, 623. President Carter stated that these\nprovisions would:\nlet Congress prevent Presidential action authorized under\nlaw simply by adopting a concurrent resolution of disap\xc2\xad\nproval. Such provisions raise major constitutional ques\xc2\xad\ntions, since Article I, \xc2\xa7 7 of the Constitution requires that\ncongressional action having the force and effect of law be\npresented to the President for approval. These provisions\nalso have the potential of involving Congress in the exe\xc2\xad\ncution of the laws, a responsibility reserved for the Presi\xc2\xad\ndent under the Constitution. I am approving [the bill]\nbecause of its importance to our foreign relations and\nnational security, but I must express my deep reservations\nabout these two provisions and my intention to preserve\nthe constitutional authority of the President.\n13 Weekly Comp. Pres. Doc. 1185, 1186 (Aug. 5, 1977).\nB. Constitutionality o f the \xc2\xa7 36(b) Procedure\n\nThe possible rejection by Congress of the President\xe2\x80\x99s decision to sell\nAW ACS aircraft and other military equipment to the government of\nSaudi Arabia sets this controversy in a political, military, and diplo\xc2\xad\nmatic context. Nevertheless, the constitutional issues raised by \xc2\xa7 36(b)\nare fundamentally similar in most respects to those raised by legislative\nvetoes attached to other grants of power. This Administration, like\nevery previous administration since 1934, has taken the position that socalled legislative vetoes which impermissibly interfere with the power\nvested in the President by the Constitution are unconstitutional. We\nbelieve that the provision for congressional disapproval in \xc2\xa7 36(b) is\nunconstitutional for two fundamental reasons.1\nFirst, \xc2\xa7 36(b) is unconstitutional under the Presentation Clauses of\nArticle I, \xc2\xa7 7, clauses 2 and 3 of the Constitution. These clauses require\nthat all bills (clause 2) and other congressional actions having the force\nand effect of legislation (clause 3) must be presented to the President\nfor approval. If the President approves such a measure, it becomes law;\nif he vetoes the measure by returning it with objections to its House of\norigin, it does not become a law unless two-thirds of each House votes\nto override the President\xe2\x80\x99s veto.\nIt is, we believe, incontrovertible that a resolution of disapproval\nunder \xc2\xa7 36(b) has the force and effect, even if not the traditional form,\nof legislation. The President is given statutory authority to negotiate\n1 The constitutional objections discussed in this memorandum have been articulated in considerably\ngreater detail in testimony furnished to Congress by this Administration by Assistant Attorney\nGenera], Office o f Legal Counsel, Theodore B. Olson on April 23, 1981, and October 7, 1981, to the\nSubcommittee on Agency Administration of the Senate Committee on the Judiciary and the Subcom\xc2\xad\nmittee on Rules of the House o f the House Committee on Rules, respectively.\n\n311\n\n\x0carms sales with, and make delivery to, foreign nations. Disapproval of a\nproposed sale under \xc2\xa7 36(b) would nullify the President\xe2\x80\x99s exercise of\nthat authority as applied to a particular sale. Any congressional action\ndisapproving a proposed sale has the function, the force, and the effect\nof legislation, because it narrows the discretion which Congress has\npreviously vested in the President by statute. Section 36(b), however,\ndoes not provide the President with the opportunity to approve or veto\nsuch congressional action, as required by the Presentation Clauses. In\nrequiring only a concurrent resolution for disapproval of a proposed\narms sale, \xc2\xa7 36(b) unconstitutionally infringes on the power to veto\nlegislation vested in the President by Article 1, \xc2\xa7 7, clauses 2 and 3. See\nChadha v. Immigration an d Naturalization Service, 634 F.2d 408, 421-35\n(9th Cir. 1980), cert, granted and jurisdiction postponed, 454 U.S. 812\n(1981).*\nSecond, and equally fundamental, \xc2\xa7 36(b) impermissibly intrudes on\nthe President\xe2\x80\x99s authority to execute the laws and to conduct the Na\xc2\xad\ntion\xe2\x80\x99s foreign relations, in violation of the principle of separation of\npowers. Under our system of government, it is the function of Congress\nto legislate, as it has done in the present case by authorizing the\nPresident to negotiate and consummate military sales to foreign nations.\nIt is equally the function of the Executive Branch to execute the laws\nwhich Congress has passed, as the President has done in the present\ncase by negotiating the sale of AW ACS aircraft and other military\nequipment to Saudi Arabia. Just as the President may not exercise the\nlegislative power\xe2\x80\x94for example, by taking actions outside the scope of\nstatutory authorization or his inherent constitutional authority\xe2\x80\x94so the\nCongress may not impermissibly intrude on the President\xe2\x80\x99s power to\nexecute the law.\nSection 36(b), however, purports to authorize Congress to act as a\npartner with the President in the statutorily authorized sale of arms to\nforeign nations. Not only is Congress a partner, but it is, in a sense, a\nsuperior of the President in this process, since the Congress has re\xc2\xad\nserved to itself the purported authority to countermand an Executive\nBranch decision. While the separation of powers is not absolute or\nairtight, the type of arrogation of executive power contemplated by\n\xc2\xa7 36(b) represents an impermissible intrusion on the constitutional pre\xc2\xad\nrogatives of the Executive Branch. See Chadha, 634 F.2d at 420-22.\nThe intrusion on executive prerogatives is particularly severe in the\ncase of \xc2\xa7 36(b) because o f the special role of the President in conduct\xc2\xad\ning the Nation\xe2\x80\x99s foreign relations. While Congress has an important role\nto play in the foreign affairs context, as evidenced by the Senate\xe2\x80\x99s\npower to ratify treaties and the power of Congress to enact legislation\nbearing on foreign relations, it is the President who acts as the ultimate\n*N o t e : T he Supreme Court\xe2\x80\x99s opinion in Chadha v. IN S is printed at 462 U.S. 919 (1983). Ed.\n\n312\n\n\x0cspokesman for the Nation in the world community. See generally Dames\n& Moore v. Regan, 453 U.S. 654 (1981); United States v. Curtiss-Wright\nExport Corp., 299 U.S. 304, 319 (1936). We do not suggest that the\nPresident\xe2\x80\x99s power to conduct foreign relations is so plenary as to\ndisable the Congress from passing a statute\xe2\x80\x94signed by the President or\nenacted over his veto\xe2\x80\x94disapproving an arms sale. We do believe,\nhowever, that in his conduct of foreign relations the President must\nenjoy at least the full degree of discretion vested in him by legislation,\nwithout congressional interference with his performance of the delicate,\nand quintessentially executive, function of negotiating and consummat\xc2\xad\ning arms sales with foreign nations.\nC. Severability\n\nIn light of our concludion that \xc2\xa7 36(b) is unconstitutional insofar as it\nauthorizes the Congress to enact a concurrent resolution disapproving a\nsale of military equipment or services which the President intends to\ncarry out, it is necessary to consider whether the invalid part of \xc2\xa7 36(b)\nis severable from other portions of \xc2\xa7 36(b) or of the Arms Export\nControl Act generally. If the provisions are not severable, the other\nstatutory requirements or authorizations might fall with the legislative\nveto provision of \xc2\xa7 36(b). Cf. McCorkle v. United States, 559 F.2d 1258,\n1260 (4th Cir. 1977), cert, denied, 434 U.S. 1011 (1978).\nThe question of severability is ultimately one of legislative intent.\nSloan v. Lemon, 413 U.S. 825, 833-34 (1973). The legal standard is\nsupplied by Champlin Refining Co. v. Corporation Comm'n o f Okla\xc2\xad\nhoma, 286 U.S. 210, 234 (1932): \xe2\x80\x9cUnless it is evident that the legislature\nwould not have enacted those provisions which are within its power,\nindependently of that which is not, the invalid part may be dropped if\nwhat is left is fully operative as a law.\xe2\x80\x9d This standard applies even in\nthe absence of any express provision of severability. \xe2\x80\x9cThe cardinal\nprinciple of statutory construction is to save and not to destroy.\xe2\x80\x9d Tilton\nv. Richardson, 403 U.S. 672, 684 (1971) (quoting N L R B v. Jones &\nLaughlin Steel Corp., 301 U.S. 1, 30 (1937)).\nWe have carefully examined the relevant legislative history and have\nconcluded that the legislative veto device in \xc2\xa7 36(b) is severable from\nthe remainder of that section and from the Arms Export Control Act\ngenerally. The President\xe2\x80\x99s power to sell military equipment and services\nto foreign nations has for many years been an important aspect of U.S.\nforeign policy. Prior to 1974, such sales were not subject to congres\xc2\xad\nsional disapproval. Although the enactment of a congressional disap\xc2\xad\nproval provision in 1974 did evidence a congressional intent to exercise\ngreater oversight and control of the President\xe2\x80\x99s decisions in this area,\nwe have found nothing in the legislative history of the 1974 legislation\nor of subsequent legislation re-enacting and amending \xc2\xa7 36(b) to indi\xc2\xad\ncate that Congress, in the absence of a congressional veto provision,\n313\n\n\x0cwould have deprived the President altogether of his power to transact\nforeign military sales. In light of the importance of foreign military\nsales to the conduct of the Nation\xe2\x80\x99s foreign relations, and in light of the\nalternative for guiding Executive Branch discretion available to Con\xc2\xad\ngress\xe2\x80\x94most notably the \xe2\x80\x9c report-and-wait\xe2\x80\x9d provision also contained in\n\xc2\xa7 36(b) 2\xe2\x80\x94we do not find the requisite evidence that Congress would\nhave denied the President\xe2\x80\x99s authority to authorize foreign military sales\nwere the legislative disapproval provision of \xc2\xa7 36(b) held unconstitu\xc2\xad\ntional. For this reason, w e conclude that the legislative veto provision\nof \xc2\xa7 36(b) is severable from the other provisions of the legislation.\nII. Emergency Provision!\n\nSection 36(b) expressly contemplates that in emergency situations the\nPresident may transact a foreign military sale without submitting to\ncongressional review. The section provides:\nThe letter of offer shall not be issued if the Congress,\nwithin thirty calendar days after receiving such certifica\xc2\xad\ntion, adopts a concurrent resolution stating that it objects\nto the proposed sale, unless the President states in his\ncertification that an emergency exists which requires such\nsale in the national security interests of the United States.\nIf the President states in his certification that an emer\xc2\xad\ngency exists which requires the proposed sale in the na\xc2\xad\ntional security interest of the United States, thus waiving\nthe congressional review requirements of this subsection,\nhe shall set forth in the certification a detailed justification\nfor his determination, including a description of the emer\xc2\xad\ngency circumstances which necessitate the immediate issu\xc2\xad\nance of the letter of offer and a discussion of the national\nsecurity interests involved.\n22 U.S.C. \xc2\xa7 2776(b)(1). W e understand that the President did not include a\nfinding of a national security emergency in his certification transmitted to\nCongress on October I. Thus, to trigger this provision, it would be\nnecessary for the President to resubmit his certification supplemented by\nthe emergency findings required by \xc2\xa736(b). The legislative history of the\nemergency provision does not provide clear guidance on what situations\ncould be considered emergencies or whether the President\xe2\x80\x99s determination\ncould be challenged in Congress or in court. It is our opinion, however, that\n2 W e believe that the requirement in \xc2\xa7 36(b) that the President report arms sales to the Congress\nand delay the transaction for a 30-day period pending congressional action to disapprove the sale\nthrough plenary legislation is constitutional During this 30-day period, or indeed until a letter of offer\nis actually issued, Congress could take action to prevent the sale by enactment of legislation subject to\nthe approval or disapproval of the President under Article 1, \xc2\xa7 7 of the Constitution.\n\n314\n\n\x0cthe President enjoys virtually unlimited discretion to make an emer\xc2\xad\ngency determination, so long as he complies with the procedural re\xc2\xad\nquirements regarding including this determination in his certification\nand making detailed factual findings as specified. Once the President\nhas made an emergency determination, it is our opinion that the sale\ncould proceed immediately and could not be blocked by anything short\nof plenary legislation enacted by the Congress and signed by the Presi\xc2\xad\ndent or passed over his veto. Moreover, we believe that the President\xe2\x80\x99s\ndetermination that an emergency exists for purposes of \xc2\xa7 36(b) would\nnot be reviewable in court. Cf. Sordino v. Federal Reserve Bank o f New\nYork, 361 F.2d 106, 109 (2d Cir. 1966), cert, denied , 385 U.S. 898 (1966)\n(courts will not review the President\xe2\x80\x99s determination that a national\nemergency exists, because such a determination is \xe2\x80\x9cpeculiarly within\nthe province of the chief executive.\xe2\x80\x9d).\nWhile this avenue of avoiding the necessity to submit proposed sales\nfor congressional review and potential disapproval is available to the\nPresident as a matter of law, there may be sound reasons of policy to\navoid use of the emergency provision. The President did not make an\nemergency finding when he initially submitted that certification to\nCongress on October 1; it may be difficult to argue that there has been\nany change in circumstances other than the fact of congressional disap\xc2\xad\nproval. Moreover, the argument that an emergency exists could be met\nby the objections that (a) even if approved, the AWACS aircraft\ncannot be delivered and made fully operational for a substantial period\nof time; (b) Saudi Arabia may be able to obtain similar aircraft from\nother western nations if the AWACS sale is disapproved; and (c) there\nappears to be no imminent threat to Saudi Arabia or U.S. security\ninterests in the region which has not existed for some time. However,\nthese are matters of policy as to which we can offer no authoritative or\nfully informed opinion.\nIII. Consultation with Congress\n\nThe International Security and Development Cooperation Act of\n1980, Pub. L. No. 96-533, \xc2\xa747, 94 Stat. 3131, 3140, provides a third\npossible avenue for transacting the sale notwithstanding congressional\ndisapproval. That statute provides, in pertinent part:\nThe President may make sales, extend credit, and issue\nguarantees under the Arms Export Control Act, without\nregard to any provision of this Act, the Arms Export\nControl Act, any law relating to receipts and credits ac\xc2\xad\ncruing to the United States and any Act authorizing or\nappropriating funds for use under the Arms Export Con\xc2\xad\ntrol Act, in furtherance of any of the purposes of such\nAct, where the President determines, and so notifies in\nwriting the Speaker of the House of Representatives and\n315\n\n\x0cthe chairman of the Committee on Foreign Relations of\nthe Senate, that to do so is vital to the national security\ninterests of the United States.\nBefore exercising the authority granted in this subsec\xc2\xad\ntion, the President shall consult with, and shall provide a\nwritten policy justification to the Committee on Foreign\nAffairs and the Committee on Appropriations of the\nHouse of Representatives and the Committee on Foreign\nRelations and the Committee on Appropriations of the\nSenate.\nAgain, the President has not taken action to trigger this provision by\nproviding written notification to the Speaker of the House of Repre\xc2\xad\nsentatives and the chairman of the Senate Foreign Relations Commit\xc2\xad\ntee. The President would further have to \xe2\x80\x9cconsult with\xe2\x80\x9d the specified\ncongressional committee for an unstated period of time before the sale\ncould be completed and would have to provide the required written\npolicy justification. This section, we believe, rather clearly contem\xc2\xad\nplates that the President, having taken these steps, could transact a\nforeign military sale notwithstanding any concurrent resolution of dis\xc2\xad\napproval. It seems quite possible that the President could deem the\nrequired period of consultation with Congress to have been already\nfulfilled, or at least considerably foreshortened, by the extensive debates\nwhich have already occurred in the Congress on the arms package.\nMoreover, like the emergency provision of \xc2\xa7 36(b), we believe that a\npresidential finding that a sale is vital to the national security interests\nof the United States would not be subject to judicial review.\nThis route may have certain advantages, as a matter of policy, over\nthe emergency provision of \xc2\xa7 36(b). While it may be rather difficult for\nthe President to argue that an emergency exists now which did not\nexist on October 1, he might state with considerable justification that it\nhas been the consistent, publicly held view of the Administration that\nthe arms sale was vital to U.S. national security interests. Again, these\nconsiderations involve policy judgments as to which we are not able to\noffer authoritative or fully informed advice. That judgment can only be\nmade by the President, in consultation with the Department of State\nand with other elements of the national security establishment.\nIV. Conclusion\n\nIn summary, we have identified three theories under which the Presi\xc2\xad\ndent could proceed with the sale of AWACS aircraft and other military\nequipment to the government of Saudi Arabia. First, the President\ncould, consistent with the longstanding position of the Executive\nBranch and with the express statements of his two immediate predeces\xc2\xad\nsors, choose to treat the congressional resolution of disapproval as a\nlegal nullity because it violates principles of separation of powers as\n316\n\n\x0cembodied in the Presentation Clauses and in the executive function.\nSecond, he .could (if in his considered discretion such a judgment is\npossible) initiate procedures under the emergency exception to the\ncongressional review provision of \xc2\xa7 36(b). Third, he could initiate the\nconsultation process contemplated by the International Security and\nDevelopment Cooperation Act of 1980.\nT heodore\n\nB. O l s o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n317\n\n\x0c"


b'O ctober 14, 1977\n\n77-58\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL, NATIONAL OCEANIC\nAND ATMOSPHERIC ADMINISTRATION\nPersonal Tort Liability of Regional Fishery\nManagement Council Members and Staff\n\nThe Deputy General Counsel of the Department of Commerce has\nrequested this Department\xe2\x80\x99s review of your memorandum to determine\nwhether we concur with its conclusions. The memorandum addresses\nthe subject whether members of Regional Fishery Management Coun\xc2\xad\ncils may be personally liable in tort as a result of their official participa\xc2\xad\ntion in the Councils. We have reviewed the memorandum and the\napplicable case law, and believe its conclusions reached are sound.\nRegional Fishery Management Councils were created by the Fishery\nConservation and Management A ct of 1976.1 They were created to\nprepare, monitor, and revise regional management plans for the various\nfisheries falling within their respective jurisdictions. The precise ques\xc2\xad\ntion is whether a federally created and maintained entity whose purpose\nis to assist in implementation o f a national program is an \xe2\x80\x9cindependent\nestablishment of the United States . . . ,\xe2\x80\x9d and thereby a \xe2\x80\x9cFederal\nAgency\xe2\x80\x9d under the umbrella o f the Federal T ort Claims Act.2 A body\nof law has developed concerning the question whether an entity is a\n\xe2\x80\x9cFederal Agency.\xe2\x80\x9d It stresses the source of funding for the entity and\nthe functions of the entity as two important factors. The funding factor\nwas substantially deflated in importance by the recent Supreme Court\ndecision in United States v. Orleans.3 In Orleans the Court held that a\n\xe2\x80\x9ccommunity action agency,\xe2\x80\x9d although subject to numerous Office of\nEconomic Opportunity rules and regulations and funded largely by\nFederal funds, was not an entity that could properly be viewed as a\n\xe2\x80\x9cFederal Agency\xe2\x80\x9d for the purpose o f the Federal T ort Claims Act.\nAlthough legal analysis in that case is interesting, it does not relate\ndirectly to the problem of Regional Fishery Council members and their\n\xe2\x96\xa0 16 U.S.C. \xc2\xa7 1801, et seq.\n* 28 U.S.C. \xc2\xa72671.\n>425 U.S. 807, (1976).\n\n239\n\n\x0cstaff, because the Councils were established to execute a Federal func\xc2\xad\ntion while utilizing \xe2\x80\x9cnational standards.\xe2\x80\x9d 4 Their function is to assist the\nSecretary of Commerce in his official endeavors.5\nThe community action agency discussed in Orleans was a nonprofit\nprivate corporation and as such was held by the Court to have the\nstatus o f a \xe2\x80\x9ccontractor.\xe2\x80\x9d 6 In the present matter we do not think the\ntraditional distinction between \xe2\x80\x9cgovernment agency\xe2\x80\x9d and \xe2\x80\x9ccontractor\xe2\x80\x9d\napplies.7 Rather, the Councils come within the concept of an entity\nwhich is an \xe2\x80\x9cintegral part\xe2\x80\x9d of a Federal agency. If being an integral\npart of a \xe2\x80\x9cFederal Agency\xe2\x80\x9d means facilitating the accomplishment of\nan agency\xe2\x80\x99s mission, then the Councils are indeed \xe2\x80\x9cFederal Agencies\xe2\x80\x9d\nunder the Federal Tort Claims Act. They are indispenable elements in\nthe statutory scheme of the 1976 Act, and are an integral part of the\nDepartm ent o f Commerce\xe2\x80\x99s statutory mission under that Act.8\nIn United States v. Holcombe,9 where property was allegedly dam\xc2\xad\naged through the negligence of a civilian employee of the commis\xc2\xad\nsioned .officers\xe2\x80\x99 mess, the Sixth Circuit held that the mess was an\n\xe2\x80\x9cintegral part\xe2\x80\x9d o f the military establishment and thus an Agency of the\nG overnm ent under the Federal T ort Claims Act. This ruling was issued\ndespite the fact that the mess was a \xe2\x80\x9cnonappropriated fund instrumen\xc2\xad\ntality,\xe2\x80\x9d Le., an entity not supported by appropriations out of the Nation\xc2\xad\nal Treasury. The Councils were created by Federal statute and vested\nwith a statutory delineation of their functions. We think this militates\ntoward a finding that they are \xe2\x80\x9cFederal Agencies\xe2\x80\x9d under the Federal\nT ort Claims A ct and are protected by that degree of immunity the\nConstitution and Federal statutes provide Federal agencies.10\nFinally, the issue of State employees serving as Council members is\nno more complex than the threshold issue whether the Councils are\nFederal Agencies. It has been recognized that an employee of a local\ngovernment may be \xe2\x80\x9cloaned\xe2\x80\x9d by that government to the Federal G ov\xc2\xad\nernment so as to become a Federal employee for purposes of the\n4 See, e.g., 16 U.S.C. \xc2\xa7\xc2\xa7 1801(a)(6)-(7) and 1853(a)(1)(c).\n11 In Orleans, the Court focused, inter alia, on the local nature o f the community action\nagency. See 16 U.S.C. \xc2\xa7 1852(h).\n* \xe2\x80\x9cA critical element in distinguishing an agency from a contractor is the pow er of the\nFederal Governm ent \xe2\x80\x98to control the detailed physical performance of the contractor.\xe2\x80\x99 \xe2\x80\x9d\nOrleans, 425 U.S. at 814 quoting from Logue v. United States, 412 U.S. 521, 528 (1973).\n7 This distinction seems to apply where the entity whose status is in issue is engaged in\nan undertaking w hich has private as opposed to governmental overtones. C f, Strangi v.\nUnited States, 211 F. 2d 305 (5th C ir. 1954), and Hopson v. United States, 136 F. Supp. 804\n(D. Ark. 1956).\n0 Standard Oil Co. o f California v. Johnson, 316 U.S. 481 (1942), was one o f the first\ncases that adopted the \xe2\x80\x9cintegral p a rt\xe2\x80\x9d test. There a U.S. Army Post Exchange (PX) was\nthe entity involved and, the Court held:\nW e conclude that post exchanges as now operated are arms o f the Government\ndeemed by it essential for th e performance of Governmental functions. They are\nintegral parts o f the War Department, share in fulfilling the duties entrusted to it, and\npartake of w hatever immunities it may have under the Constitution and federal\nstatutes. Id. at 485.\n\xe2\x80\xa2 277 F. 2d 143 (4th Cir. 1960).\n10 See note 2, supra.\n\n240\n\n\x0cFederal Tort Claims A ct.11 The fact that his salary comes from a\nsource other than the Federal Government does not alter his Federal\nstatus.12\nL eon U lm a n\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x9c See, Fries v. United States. 170 F. 2d 726, 731 (6th Cir. 1948).\n11 See, United States v. Holcombe, 277 F. 2d at 144-146, supra, note 9, and Martalano v.\nUnited States, 231 F. Supp. 805 (D. Nev. 1964).\n\n\x0c'


b"July 2 0 , 1978\n\n78-41\n\nMEMORANDUM OPINION FOR THE COUNSEL\nTO THE ASSOCIATE ATTORNEY GENERAL,\nATTORNEY PERSONNEL\nEmployee Selection Procedures\xe2\x80\x94 Use of LSAT Scores\nin the Department\xe2\x80\x99s Honor and Summer Intern\nPrograms\n\nThis responds to your predecessor\xe2\x80\x99s request for our opinion whether the\nDepartment may consider Law School Admission Test (LSAT) scores of\napplicants for the Honor and Summer Intern Programs. For the reasons that\nfollow we recommend against such use.\nIn a memorandum from your predecessor to the Civil Rights Division, he\nexplained how the Department uses and considers LSAT scores in these\nprograms. The score, he maintains, is only a minor factor in the evaluation of\nprogram applicants. He also states that the score is considered a \xe2\x80\x9c rough\nindication of intellectual ability.\xe2\x80\x9d\nThe use of tests and test scores for employment purposes is a major subject in\nemployment-discrimination law. The Supreme Court in Griggs v. Duke Power\nC o., 401 U.S. 424 (1971), established the basic standards by which employee\nselection devices, including tests, were to be judged to determine whether they\nillegally furthered discrimination in violation of Title VII of the Civil Rights\nAct of 1964, 42 U.S.C. \xc2\xa7 2000e et seq. The Court held that employment\npractices that operate to exclude protected class members under Title VII1 and\nthat cannot be shown to be related to job performance are prohibited. Id., at\n431. If a practice operates disproportionately to exclude minorities, the\nemployer must meet the heavy burden of proving that the practice \xe2\x80\x9c bear[s] a\ndemonstrable relationship to successful performance of the jobs for which it is\nused.\xe2\x80\x9d Id. The Equal Employment Opportunity Commission (EEOC) has\npublished \xe2\x80\x9c Guidelines on Employee Selection Procedures.\xe2\x80\x9d 29 CFR \xc2\xa7 1607.1\n'T itle VII prohibits em ploym ent discrim ination on the basis o f race, color, religion, sex, or\nnational origin. 42 U .S .C . \xc2\xa7 2000e-2(a). Because our discussion relates to tests as em ploym ent\ndevices and because racial m inorities generally do not perform as well as the rest o f the population\non written tests our focus will be on how the D epartm ent\xe2\x80\x99s use o f the LSAT affects racial\nm inorities.\n\n166\n\n\x0cet seq.2 One of the concerns which led to the publication of these guidelines is\n\nthe common practice of \xe2\x80\x9c using tests as the basis for employment decisions\nwithout evidence that they are valid predictors of employee job performance.\xe2\x80\x9d\n29 CFR \xc2\xa7 1607.1(b). Where such evidence is lacking \xe2\x80\x9c the possibility of\ndiscrimination in the application of test results must be recognized.\xe2\x80\x9d Section\n1607.3 of the guidelines, in defining discrimination, essentially restates the\nGriggs standard. It provides, in pertinent part, that the use of a test that\ndisproportionately rejects minorities in the hiring process constitutes discrimi\xc2\xad\nnation unless the test is predictive of, or significantly correlated with, actual job\nrequirements. Even where the test is reasonably related to job requirements, if\nit disproportionately rejects minorities the employer must show that there is no\nsuitable alternative hiring procedure that would impact less heavily on\nminorities. Id.\nWe now tum to the Department\xe2\x80\x99s use of LSAT scores to see whether its\nprocedure comports with the above rules. The memorandum from your Office\nexplains the Department\xe2\x80\x99s use of these scores as follows. The Department\noperates on the premise that the LSAT score is a rough indicator of intellectual\nability. Proceeding from this premise it explains the significance that the\nDepartment attaches to these scores:\nIn order to evaluate the non-intellectual abilities of the candidate the\nLSAT score is compared to the applicant\xe2\x80\x99s academic record. If a\nperson has a high LSAT score, but only average grades then it\nsuggests that the person is an underachiever and we are therefore not\ninterested in him. By the same token, a mediocre or low LSAT score\ncoupled with high academic performance suggests that the candidate\nis a hard worker and self disciplined. The person did not achieve his\nexcellent grades by intellectual ability alone. This weighs very\nheavily in the candidate\xe2\x80\x99s favor. Finally, a high LSAT score and high\nacademic performance suggests that not only is the person very bright\nbut he or she is also a hard worker.\nThis explanation may be illustrated by the following categorization of appli\xc2\xad\ncants:\n(1) high grades\xe2\x80\x94 high LSAT\n(2) high grades\xe2\x80\x94 average LSAT\n(3) average grades\xe2\x80\x94 average LSAT3\n(4) average grades\xe2\x80\x94 high LSAT\n2These guidelines are entitled to great deference and have been follow ed by virtually every court\ndealing with these issues. See. Douglas v. Hampton, 512 F. (2d) 976, 986 (D .C . Cir. 1975), and\ncases cited. See also. Washington v. Davis, 426 U .S . 229, 247, n. 13 (1976).\n\xe2\x96\xa0\n\xe2\x80\x99 Although the m em orandum does not state how this com bination o f grades and LSAT scores\nbears upon the em ploym ent decision, this category o f applicants seem s logically to fall betw een\nclasses 2 and 4. Class 4 m em bers are unfavorably viewed as \xe2\x80\x9c underachievers.\xe2\x80\x9d That label would\nnot fit class 3 m em bers since their grades are com m ensurate with their LSAT scores. T hus, class 3\nmembers would appear to be considered more desirable applicants than those in class 4. Class 3\nm em bers, how ever, are not viewed as favorably as class 2 mem bers. Class 2 mem bers are seen as\nhard working and self-disciplined. It would seem to follow that class 3 m em bers do not warrant\nthese labels because their grades were consistent with their LSAT scores.\n\n167\n\n\x0cWe have listed the categories in the order of the most desirable applicants (class\n1) to the least desirable applicants (class 4); desirability is based on the\nreasoning of the above quoted statement.\nAt this point it is important to keep in mind that the use of test scores where\nthe test is not predictive of or correlated with job performance is a discrimina\xc2\xad\ntory practice only insofar as it operates to reject disproportionate numbers of\nprotected class members. Therefore, we must consider the adverse impact that\nuse of LSAT scores has on minority applicants. To proceed with our analysis\nwe make two basic assumptions to determine whether there is a possible\nadverse effect on minority applicants. First, we assume that minority members\nas a general rule do not perform as well as nonminority persons on the LSAT.\nSecond, we assume that minority members as a general rule receive lower\nlaw school grades than nonminority persons.4\nAccepting these assumptions as valid, we can now evaluate how the\nDepartment\xe2\x80\x99s use of LSAT scores may affect minority applicants in the Honor\nand Summer Intern Programs.\nI. Class 1 (high grades\xe2\x80\x94 high LSAT)\nClass 1 would include very few minority members because the high grades\nand high LSAT score are inconsistent with assumed minority performance.\nTherefore, this class would, to a large degree, be composed of whites. A high\nLSAT score adds to their desirability since the Department would view an\nindividual in this class as very bright and hard working. Thus, in this class the\nLSAT is considered as a positive factor. The effect of this is to give these\npredominantly white applicants an additional advantage based on their LSAT\nscores. Members of the other classes are adversely affected by this because the\neffect of increasing the ratings for class 1 members serves to make members of\nthe other classes less desirable comparatively.\nII. Class 2 (high grades\xe2\x80\x94 average LSAT)\nBecause of their high grades, members of this class would also be\npredominantly white. Interestingly, here the average LSAT would actually be\nconsidered favorably. The theory is that the class member received grades\nhigher than expected. Thus, in this case, an average LSAT score is a positive\nfactor. Although it seems anomalous, this favorable consideration of average\nLSAT scores adversely affects minority members. Most minorities would not\n\n4U nfortunately, we do not have ready access to the actual statistics on this subject, if indeed any\nexist. H ow ever, we believe that these assum ptions are fully warranted since there is a \xe2\x80\x9c substantial\nbody o f evidence that black persons and other disadvantaged groups perform on the average far\nbelow the norm for whites on generalized intelligence or aptitude tests. \xe2\x80\x99 \xe2\x80\x99 Douglas v. Hampton, 5 12\nF. (2d) 976, 983, quoting from Arrington v. Massachusetts Bay Transp. Auth., 306 F. Supp. 1355,\n1358 (D. M ass. 1969). The LSA T concededly is a general intelligence test. T herefore m inorities\nwould not be expected to score as high as w hites. See also. Racial Bias and the LSAT: A New\nApproach to the Defense o f Preferential Admissions, 24 Buff. L. Rev. 439, 456 (1974), and Bell,\nIn Defense o f Minority Admissions Programs: A Response to Professor Graglia, 119 U. Penn. L.\nRev. 364, 367 (1970).\n\n168\n\n\x0creceive the benefits connected with average LSAT scores because, not having\nreceived high grades, they would not be in this class. Thus, here again, it is fair\nto assume that whites would, to a disproportionate degree, benefit from the use\nof LSAT scores.\nIII. Class 3 (average grades\xe2\x80\x94 average LSAT)\nMost black applicants would fall in this class. Consideration of the LSAT\nscores would result in no discernible advantage to blacks based upon the\nreasoning of the memorandum.\nIV. Class 4 (average grades\xe2\x80\x94 high LSAT)\nThis is the one class where LSAT would adversely impact on predominantly\nwhite class members. The high LSAT would result in fewer black class\nmembers. The negative inferences drawn from the average grades\xe2\x80\x94 high LSAT\ncombination would diminish employment opportunities for these applicants.\nAs the foregoing illustrations demonstrate, it is quite possible that the\nDepartment\xe2\x80\x99s use of LSAT scores may work to the disadvantage of minorities.\nAccurate data on the Department\xe2\x80\x99s use of these scores would be required before\nwe could say, with any assurance, that this possible adverse impact is\nconsistent with what actually occurs. However, it is surely a possibility.\nProceeding under the premise that the Department\xe2\x80\x99s use of the LSAT has a\npossible discriminatory impact, the issue becomes whether such use is\nreasonably predictive of job performance. The Educational Testing Service\n(ETS) prepares the LSAT. This organization has consistently warned against\nuse of the LSAT in employment decisions since it is of doubtful validity as a\npredictor of success in practice. Your memorandum states that the Depart\xc2\xad\nment\xe2\x80\x99s primary use of LSAT scores is to measure motivation. That is, the test\nresults are used to see how an individual\xe2\x80\x99s grades stack up against his or her\nLSAT rating. The validity of the Department\xe2\x80\x99s assumption regarding appli\xc2\xad\ncant motivation has not been established. The EEOC guidelines state that:\nEvidence of a test\xe2\x80\x99s validity should consist of empirical data\ndemonstrating that the test is predictive of or significantly correlated\nwith important elements of work behavior which comprise or are\nrelevant to the job or jobs for which candidates are being evaluated.\n28 CFR \xc2\xa7 1607.4(c).\nIt thus seems that the Department is obliged to determine whether its\nassumptions on applicant motivation are empirically supportable.\nCongress, in passing the 1972 amendments to Title VII, Pub. L. 92-261, 86\nStat. 103, extended the protections of Title VII to Federal employees. Their\nlegislative history shows that the Federal Government\xe2\x80\x99s use of unvalidated\nhiring criteria was a major concern to the Congress.\nCivil Service selection and promotion requirements are replete with\nartificial selection and promotion requirements that place a premium\non \xe2\x80\x9c paper\xe2\x80\x9d credentials which frequently prove of questionable value\nas a means of predicting actual job performance. The problem is\n169\n\n\x0cfurther aggravated by the [Civil Service Commission\xe2\x80\x99s] use o f\ngeneral ability tests which are not aimed at any direct relationship to\nspecific jo b s. The inevitable consequence of this, as demonstrated by\n\nsimilar practices in the private sector, and found unlawful by the\nSupreme Court, is that classes of persons who are culturally or\neducationally disadvantaged are subjected to a heavier burden in\nseeking employment. [Emphasis added.]5\nCongress decried the use of such hiring criteria, stating that the \xe2\x80\x9c inevitable\nconsequence\xe2\x80\x9d of this is to create an added and unwarranted burden on\ndisadvantaged classes. The D.C. Court of Appeals in Douglas v. Hampton,\n512 F. (2d) 976 (D.C. Cir. 1976), likewise condemned the use of unvalidated\nhiring criteria in holding that Federal employment tests must rationally measure\nrequired job skills. Cf., Washington v. Davis, 426 U.S. 229, 247, n. 13 and\naccompanying text (1976).\nPrivate employers covered by title VII are required to use validated selection\ncriteria. It would be anomalous for the Federal Government not to meet this\nsame requirement. The United States Commission on Civil Rights in a July\n1975 report, The Federal Civil Rights Enforcement Effort\xe2\x80\x94 1974, Vol. V.\xe2\x80\x94To\nEliminate Employment Discrimination, stated:\nThe Federal Government must not be permitted the continued use of\nemployment selection standards which close the doors to groups\nvictimized by years of discrimination without any empirical proof of\nsuch standards\xe2\x80\x99 relation to job performance; to do so, would permit\nthe Government to escape adherence to the requirements it, itself,\nimposes on private employers. Such policy decisions within the\nGovernment seriously erode the Government\xe2\x80\x99s own credibility as an\nenforcer of the law [footnotes omitted]. Id., at 42-43.\nWe are not unsympathetic with the unique problems involved in formulating\naccurate predictors of attorney job performance. Nor do we fail to recognize\nthat other employment criteria for attorneys are not purely objective. Law\nschool grades6 and employment interviews are not validated as predictors, and\nwe do not here address the question whether they should be. We agree,\nhowever, with the Civil Rights Division\xe2\x80\x99s view insofar as it maintains that:\nIn light of the difficulty in evaluating job performance, we are forced\nto use imprecise indicators of ability. Where, however, as here, we\nhave reason to question the usefulness of an indicator, we believe it\nshould be eliminated as a criterion of selection, particularly in light of\nthe appearance it creates of the application of a lesser standard of\ncompliance with Title VII in Department hiring than in hiring by\nother employers.\n\n5H. Rept. N o. 238, 92d C o n g ., 1st sess. 24 (1971), 1972 U .S. Code Cong. Adm in. N ew s, 2159.\n6G rades in law schools are m ore reliable indicators than are LSAT scores, in that grades are\ngiven on the basis o f legal work perform ed or questions answ ered. Therefore, a student is graded\nfor activities sim ilar in m any respects to w ork he or she will do in practicing law.\n\n170\n\n\x0cYour memorandum states that the Department is not insensitive to the\npossibility of the LSAT being tainted by cultural biases. It is because of this\nconcern, it maintains, that the LSAT score plays a less significant role in\nevaluating minority candidates. While this may be true, it fails to deal with the\npossibility of nonminority candidates\xe2\x80\x99 ratings being augmented because of\nLSAT considerations. This would have the same effect as penalizing minority\ncandidates for their performance on the LSAT because even though they might\nnot be negatively considered as a result of their scores, their ratings would be\ncomparatively lower because of LSAT consideration.\nA second and possibly more important issue is this. If a selection procedure\nimpacts adversely on minorities as a result of a discriminatory practice, the\ndegree of discrimination is irrelevant. See, Bolton v. Murray Envelope Corp.,\n493 F. (2d) 191 (5th Cir. 1974); Rowe v. General M otors Corp., 457 F. (2d)\n348 (5th Cir. 1972). While we concede it to be far from clear that the\nDepartment\xe2\x80\x99s use of LSAT scores to measure motivation results in a dispropor\xc2\xad\ntionate rejection of minority applicants, a plausible case can be made that this in\nfact occurs. In sum, we recommend that the Department abandon the policy of\nconsidering LSAT scores to determine employee motivation because of the\nprocedure\xe2\x80\x99s (1) questionable reliability, (2) uncertain legality, and (3) apparent\nconflict with requirements of private employers.\nJo h n M . H\n\narm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n171\n\n\x0c"


b'A pril 1, 1977\n\n77-17\n\nMEMORANDUM OPINION FOR AN\nASSISTANT ATTORNEY GENERAL FOR A\nDEPARTMENT OF JUSTICE DIVISION\nStandards of Conduct\xe2\x80\x94Service of Assistant Section\nChief as Reporter on American Law Institute Project\n\nYou have asked us whether Mr. A, Assistant Chief of a section of a\nD epartm ent o f Justice Division, may serve as reporter for an American\nLaw Institute (A LI) project relating to the development of peer review\nstandards. We understand that Mr. A would receive monetary compen\xc2\xad\nsation for his services.\nUnder 28 C FR \xc2\xa7 45.735.9(a), no employee of the Department of\nJustice is permitted to engage in the outside practice of law unless he\nfirst obtains the approval o f the Deputy Attorney General. We have\npreviously taken the position that teaching does not constitute the\noutside practice of law. We believe that Mr. A \xe2\x80\x99s proposed service as a\nreporter more clearly resembles teaching than the practice of law, and\nas such, does not require the approval o f the Deputy Attorney General.\nT here is, moreover, no prohibition against the receipt of compensation\nfor the work, assuming that nonpublic official departmental information\nis not used on the project.\nIn addition, 28 CFR \xc2\xa7 45.735.9(d) provides:\nNo employee shall engage in any employment outside his official\nhours of duty or while on leave status if such employment will:\n(1) In any manner interfere with the proper and effective\nperformance of the duties of this position;\n(2) Create or appear to create a conflict of interest, or\n(3) Reflect adversely upon the Department of Justice.\nT he reference to activities permitted outside one\xe2\x80\x99s \xe2\x80\x9cofficial hours of\nduty\xe2\x80\x9d may, by negative implication, be read to mean that no outside\nactivities are permitted during regular office hours. Mr. A states in his\nmemorandum to you that he believes a minimal amount o f reportorial\nwork, such as talking to people and mailing drafts, will have to be done\nduring regular office hours. In our opinion, 28 C FR \xc2\xa7 45.735.9(d) need\nnot be construed so narrowly as to prohibit all such incidental activities\n52\n\n\x0cif they in fact take only a small amount of time and if you have no\nobjection. However, it may be advisable to make some assurances,\nperhaps through a formal or informal compensatory time arrangement,\nthat Mr. A will devote the time required to his official duties. If leave\nis required in connection with his A LI work, we recommend that\nannual leave or compensatory time be used, in view of the fact that Mr.\nA will receive compensation. Use of official or administrative leave\nprovides a sufficiently close nexus to his official duties that the receipt\nof compensation from the ALI, in part covering the same activities,\nwould raise questions under 18 U.S.C. \xc2\xa7 209 and 28 CFR \xc2\xa7 45.735.12(a).\nWe believe that all identifiable expenses of the project such as post\xc2\xad\nage, stationery, and telephone costs should be borne by ALI or some\nother nongovernmental source. Any significant secretarial services\nshould also be reimbursed if appropriate arrangements can be made. On\nthe other hand, under the unique circumstances present here, the D e\xc2\xad\npartment\xe2\x80\x99s particular interest in Mr. A \xe2\x80\x99s project might permit limited\nsecretarial services to be made available to him for the project.\nL\n\neon\n\nU\n\nlm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n53\n\n\x0c'


b'Application o f the Ineligibility Clause\nThe Ineligibility Clause o f the Constitution would not bar the appointment of Representative Bill Rich\xc2\xad\nardson to serve as United States Ambassador to the United Nations or of Senator William Cohen\nto serve as Secretary o f Defense.\n\nDecember 31, 1996\nM e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t\n\nY ou have asked whether the Ineligibility Clause, U.S. Const, art. I, \xc2\xa76, cl. 2,\nwould forbid the appointment of Representative Bill Richardson as United States\nAmbassador to the United Nations or of Senator William Cohen as Secretary of\nDefense. The Ineligibility Clause provides that\n\nNo Senator or Representative shall, during the Time for which he\nwas elected, be appointed to any civil Office under the Authority\nof the United States, which shall have been created, or the Emolu\xc2\xad\nments whereof shall have been encreased during such time . . . .\nWe believe that the Clause would not bar either appointment.\nRepresentative Richardson entered Congress on January 3, 1983; has served\ncontinuously since then; and recently won election to the 105th Congress. The\nPresident has announced his intention to nominate Representative Richardson to\nbe United States Ambassador to the United Nations. See 22 U.S.C. \xc2\xa7 287(a).\nThe President sets the salary of the Ambassador to the United Nations, at an\namount not to exceed the rate o f pay for chiefs of mission. Id. \xc2\xa7 287(g). Chiefs\nof mission may receive pay up to the amount for Level II of the Executive Sched\xc2\xad\nule (and may receive total compensation up to the amount for Level I). Id.\n\xc2\xa7 3961(a). The salary of the current Ambassador equals the pay for Executive\nLevel II\xe2\x80\x94 the statutory maximum. At least one prior Congress in which Rep\xc2\xad\nresentative Richardson was serving voted to increase the pay for the Executive\nLevels and thus to raise the ceiling on the salary for the position. See Pub. L.\nNo. 101-194, \xc2\xa7 703(a)(1), 103 Stat. 1716, 1768 (1989). Furthermore, during his\nfirst term, the President increased the salary for the current Ambassador. We as\xc2\xad\nsume that the 105th Congress will not enact any further increase before Represent\xc2\xad\native Richardson would be appointed, and we understand that the President\xe2\x80\x99s an\xc2\xad\nnual order about pay in the executive branch, which will be issued shortly, will\nnot increase the pay for the Executive Levels.\nOnly increases during the 105th Congress, and before Mr. Richardson\xe2\x80\x99s appoint\xc2\xad\nment, could be disqualifying. The Ineligibility Clause identifies, as the disquali\xc2\xad\nfying event, an increase \xe2\x80\x9c during the Time for which [the Member of Congress]\nwas elected.\xe2\x80\x9d In 1922, President Harding sought Attorney General Daugherty\xe2\x80\x99s\n410\n\n\x0cApplication o f the Ineligibility Clause\n\nopinion whether the Ineligibility Clause blocked the appointment of Senator Wil\xc2\xad\nliam S. Kenyon as United States Circuit Judge because there had been a salary\nincrease during Senator Kenyon\xe2\x80\x99s prior term. An Act of Congress had increased\njudicial salaries on February 25, 1919, while Senator Kenyon was serving a term\nthat expired on March 4, 1919. On March 4, he began another term as Senator,\nto which he had been elected in 1918. Attorney General Daugherty concluded\nthat the Ineligibility Clause covers only increases during the term that a Member\nof Congress is currently serving and that the salary increase during Senator\nKenyon\xe2\x80\x99s prior term did not stand in the way of his appointment. 33 Op. Att\xe2\x80\x99y\nGen. 88 (1922).1 Thus, any increases voted by past Congresses, or ordered by\nthe President during past Congresses, would not bar Representative Richardson\xe2\x80\x99s\nappointment. (Under the circumstances here, we need not decide whether it is\nthe action of Congress in raising the ceiling or of the President in dictating the\npay that is the relevant \xe2\x80\x9c encrease[]\xe2\x80\x9d under the Ineligibility Clause.) Moreover,\nany increases that might take place after Mr. Richardson\xe2\x80\x99s appointment would\nnot implicate the Ineligibility Clause, which is a bar to appointment when emolu\xc2\xad\nments \xe2\x80\x9c shall have been encreased\xe2\x80\x9d and thus \xe2\x80\x9c on its face plainly shows an inten\xc2\xad\ntion of preventing an appointment only when an increase in the emoluments of\nan office precedes an appointment to that office.\xe2\x80\x9d Constitutional L aw \xe2\x80\x94 Article\nI, Section 6, Clause 2 \xe2\x80\x94 Appointment o f M ember o f Congress to a Civil Office,\n3 Op. O.L.C. 286, 288 (1979).\nSenator Cohen did not seek reelection and thus will cease to be a member of\nthe Senate when the new Congress convenes. He therefore would not be appointed\n\xe2\x80\x9c during the Time for which he was elected,\xe2\x80\x9d and his appointment would not\nbe within the prohibition of the Ineligibility Clause, no matter what increases in\nthe salary for Secretary of Defense may have been enacted while he was in the\nSenate. See, e.g.. Memorandum for William P. Rogers, Deputy Attorney General,\nfrom J. Lee Rankin, Assistant Attorney General, Office of Legal Counsel, Re:\nQualification as M ember o f the Subversive Activities Control B oard (May 18,\n1953).\nCHRISTOPHER SCHROEDER\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x96\xa0We have noted that "appointm ent o f a M ember o f Congress to an office created by some previous Congress,\nof which he was also a member, has not been considered to be within the prohibition o f the Constitution. Numerous\nsuch appointments have been made in the p a st." Memorandum for Files, from Norbert A. Schlei, Assistant Attorney\nGenera), Office o f Legal Counsel, Re: Effect Upon the Judicial Appointment o f a Former Congressman o f a Judicial\nSalary Increase, Enacted by the Congress from Which He Has Resigned at 2 (Dec. 12, 1963). See also Memorandum\nfor the Attorney General, from J. Lee Rankin, Assistant Attorney General, Office o f Legal Counsel, Untitled (Sept.\nI, 1954).\n\n411\n\n\x0cISBN 0-16-050772-3\n\n/ o\n\ngu\n\nijyj / /\n\n\x0c'


b"September 21, 1979\n\n79-68\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL, IMMIGRATION AND\nNATURALIZATION SERVICE\nOuter Continental Shelf\xe2\x80\x94Drilling Rigs\xe2\x80\x94Alien\nWorkers (43 U.S.C. \xc2\xa7 1333)\n\nWe have your request for our views concerning the applicability o f the\nImmigration and Nationality Act, 8 U .S.C . \xc2\xa7 1101 et seq., to persons\nworking on drilling rigs on the O uter Continental Shelf. The question\narises in the context o f recent amendments to the Outer Continental Shelf\nLands Act, the increase in drilling activity on the Shelf, and protests by\nvarious domestic groups that alien workers should not be employed on rigs\non the Shelf except in conform ance with immigration law requirements.\nYou have provided us with your m em orandum dated January 16, 1979,\nwhich concludes that the immigration laws do not apply on the Outer C on\xc2\xad\ntinental Shelf. We have reviewed that m em orandum and reach the same\nconclusion as far as drilling rigs are concerned. O ur reasons, however, are\nsomewhat different and depend largely on an analysis o f the recent\namendments.\nWe understand that the immigration laws have never been applied to\ndrilling rigs on the O uter Continental Shelf. Furtherm ore, until recently\nyour agency has never had occasion to confront this question. In 1953\nCongress enacted the O uter Continental Shelf Lands Act, 43 U.S.C. 1331\net seq., primarily for the purpose o f asserting Federal jurisdiction over the\nminerals o f the Shelf. The original Act is basically a guide to the adminis\xc2\xad\ntration and leasing o f offshore mineral-producing properties. Congress\nadopted the following formula for borrowing domestic law for the Shelf\n(43 U.S.C. \xc2\xa7 1333(a)(1) ):\nThe C onstitution and laws and civil and political jurisdiction of\nthe United States are extended to the subsoil and seabed o f the\nouter Continental Shelf and to all artificial islands and fixed\nstructures which may be erected thereon for the purpose o f ex\xc2\xad\nploring for, developing, removing, and transporting resources\n362\n\n\x0ctherefrom , to the same extent as if the outer Continental Shelf\nwere an area o f exclusive Federal jurisdiction located within a\nState * * * .\nAs enacted in 1953, this language presented two questions of interpreta\xc2\xad\ntion: whether drilling rigs were included as \xe2\x80\x9c artificial islands and fixed\nstructures * * * for the purpose o f exploring etc., and whether the im\xc2\xad\nmigration laws were among the \xe2\x80\x9c laws * * * extended * * * to the same\nextent as if the outer Continental Shelf were an area o f exclusive Federal\njurisdiction located within a S tate.\xe2\x80\x9d\nYou note that the courts have concluded that a drilling rig is a vessel\nrather than a \xe2\x80\x9c fixed structure\xe2\x80\x9d within the meaning of \xc2\xa7 1333(a)(1). E.g.,\nBoatel, Inc. v. Delamore, 379 F.(2d) 850 (5th Cir. 1967), and cases col\xc2\xad\nlected therein. This was because a rig was designed to float to the place\nwhere it will be used and to be attached to the seabed in a relatively imper\xc2\xad\nmanent manner, permitting its later removal.\nIn 1978 Congress amended the O uter Continental Shelf Lands Act. Two\no f those amendments are crucial here. First, it eliminated the reference to\n\xe2\x80\x9c fixed structures\xe2\x80\x9d in \xc2\xa7 1333(a)(1) and substituted a reference to \xe2\x80\x9c all in\xc2\xad\nstallations and outer devices permanently or temporarily attached to the\nseabed.\xe2\x80\x9d O uter Continental Shelf Lands Act Amendments o f 1978, 92\nStat. 635, \xc2\xa7 203(a). It is unquestioned therefore that drilling rigs are now\nwithin the language o f \xc2\xa7 1333(a)(1). See, e.g., H. Conf. Rept. 1474 at 80.\nThe question which remains, however, is whether the immigration laws are\nadopted by the pertinent language o f this provision. That, in our view, re\xc2\xad\nquires reconciling \xc2\xa7 1333(a)(1) with another 1978 amendment that, with\ncertain exceptions, restricts crews o f drilling rigs to U.S. citizens or aliens\nadmitted for permanent residence. Section 30, O uter Continental Shelf\nLands Act, as added by \xc2\xa7 208 o f the Outer Continental Shelf Lands Act\nAmendments, 92 Stat. 669.\nIf \xc2\xa7 1333(a)(1) were considered alone, there are arguments suggesting\nthat the immigration laws should be applied on drilling rigs. Based on a\nliteral reading o f that provision, it is certainly possible to conclude that the\nimmigration laws should apply. The 1953 law adopts Federal law \xe2\x80\x9c to the\nsame extent as if the O uter Continental Shelf were an area o f exclusive\nFederal jurisdiction located within a S tate.\xe2\x80\x9d The immigration laws apply,\no f course, to Federal enclaves within States. It appears that \xc2\xa7 1333(a)(1)\nwas drafted so that it would include Federal laws which, read by them \xc2\xad\nselves, might be interpreted as being limited in their application to the con\xc2\xad\ntinental United States. See W. M. Christopher, \xe2\x80\x9c The Outer Continental\nShelf Act: Key to a New F rontier,\xe2\x80\x9d 6 Stan. L. Rev. 23, 42 (1953).'\n\n'This point is similarly argued by our L and and Natural Resources Division in a brief\n(pp. 46-47) filed on behalf o f the Environm ental Protection Agency concerning the applica\xc2\xad\ntion of the Clean Air Act to the O uter C ontinental Shelf. The m atter is pending in the U.S.\nCourt o f Appeals for the Ninth Circuit. Exxon Corp. v. E .P .A ., No. 78-1932 et a!.\n\n363\n\n\x0cThis conclusion is supported by the legislative history o f the 1953 Act.\nThe House had passed a bill that provided: \xe2\x80\x9c Federal laws now in effect or\nhereafter adopted shall apply to the entire area o f the outer continental\nshelf.\xe2\x80\x9d H. 5134, \xc2\xa7 9(a), reprinted in O uter Continental Shelf, Hearings\nbefore the Senate Committee on Interior and Insular Affairs, 83d Cong.,\n1st sess., p. 681 (1953). This Departm ent, writing to the Senate Commit\xc2\xad\ntee, had commented on the House bill, as you note, and pointed out that it\nwas unclear how the bill would apply where Federal laws by their own\nterms only applied to places other than the Shelf. Letter from Assistant\nAttorney General Rankin o f May 26, 1953, reprinted in S. Rept. 411, 83d\nCong., 1st sess. 32 (1953). It appears that the am endment employing the\nFederal enclave \xe2\x80\x9c within a S tate\xe2\x80\x9d formula was substituted as a response to\nthis criticism, c f , id. 23; W. M. Christopher, op. cit. Furtherm ore, spe\xc2\xad\ncific language dealing with employment o f aliens, which had appeared in\nthe original Senate bill,2 was deleted in committee with the explanation\nthat \xe2\x80\x9c since all applicable Federal laws are extended to the seabed and sub\xc2\xad\nsoil o f the outer shelf, the specific provisions respecting aliens are believed\nunnecessary.\xe2\x80\x9d S. Rept. 411, 83d Cong., 1st sess. 24 (1953). Thus, the fact\nthat the Immigration and Nationality Act defines \xe2\x80\x9c United States\xe2\x80\x9d in a\nm anner that does not include the Continental Shelf, 8 U.S.C.\n\xc2\xa7 1101(a)(38), is not controlling.3\nAs you suggest, the 1953 Act imposed something less than complete\nsovereignty over the Shelf. This is confirmed by the United Nations C on\xc2\xad\nvention on the Continental Shelf, 15 U .S.T. 472, which entered into force\nfor the United States in 1964.4 See, Treasure Salvors v. Unidentified\nWrecked and A bandoned Sailing Vessel, 569 F.(2d) 330 (5th Cir. 1978) (ex\xc2\xad\ntension o f jurisdiction over the O uter C ontinental Shelf Act not extension\nfor all purposes). The history o f the 1978 amendments suggests, however,\nthat, as a general m atter, \xc2\xa7 1333(a)(1) should be given broad scope. Two\nkey committee reports state that \xe2\x80\x9c Federal law is to be applicable to all ac\xc2\xad\ntivities on all devices in contact with the seabed for exploration, develop\xc2\xad\nment, and production.\xe2\x80\x9d H. Conf. Rept. 1474, 95th Cong., 2d sess. 80\n(1978); H. Rept. 590, 95th Cong., 1st sess. 128 (1977). The conference\nreport went on to emphasize that one o f the purposes o f the amendment\n\n:S. 1901, 83d C ong., 1st sess., \xc2\xa7 4(g), reprinted in O uter Continental Shelf Hearings,\n\nsupra, at 2. U nder this bill the A ttorney General was required to certify that aliens employed\non structures covered by the bill were lawfully adm itted under the Immigration and Na\xc2\xad\ntionality Act.\n\xe2\x80\x99We cannot, therefore, accept the statem ent at p. 5 o f your m em orandum that the Senate\nbill was reported \xe2\x80\x9c notw ithstanding the Justice D epartm ent\xe2\x80\x99s conclusion.\xe2\x80\x9d T he change, in\nfact, appears to be a result o f the D epartm ent o f Justice comm ent.\n\xe2\x80\x98The convention provides that \xe2\x80\x9c The coastal State exercises over the continental shelf\nsovereign rights for the purpose o f exploring it and exploiting its natural resources.\xe2\x80\x9d A rt. 2.\nThe D epartm ent o f State has expressed the view that immigration control over installations\nexploiting the natural resources o f the Shelf would not violate the convention. Letter of\nJanuary 15, 1979, from Assistant Legal Adviser, Oceans, Environm ent and Scientific A f\xc2\xad\nfairs, to you. In any event, as a m atter o f domestic law, the Act, if inconsistent with the con\xc2\xad\nvention, would nevertheless prevail Reid v. Covert, 354 U .S. 1, 18 (1957).\n\n364\n\n\x0cand its legislative history was to make clear that the customs laws applied\nto drilling platforms. The report asserted that this had, in fact, been the in\xc2\xad\ntent of the original 1953 Act. H. Conf. Rept. 1474, at 80-81. Logically, it\nmay be observed that there would seem to be no reason why the customs\nlaws ought to apply on the Shelf while the immigration laws would not.\nHaving thus analyzed \xc2\xa7 1333(a)(1) in both a textual and historical context,\nit would be possible to conclude that, standing alone, it is broad enough to\nrequire application o f the Immigration and Nationality Act to drilling rigs\non the Shelf.\nIt is necessary, however, to consider the effect o f specific language on\nimmigration requirements enacted by Congress in 1978. Section 30 o f the\nOuter Continental Shelf Act, as added by \xc2\xa7 208 of the O uter Continental\nShelf Lands Act Amendments o f 1978, 43 U.S.C. \xc2\xa7 1356 (1979 S upp.).5\nThese new requirements lead us to a contrary conclusion. In general, the\namendment requires that rigs be manned by U.S. citizens or aliens lawfully\nadmitted to the United States for permanent residence. 43 U.S.C.\n\n\xe2\x80\x99The full text o f this provision reads:\nSec. 30. DO CU M EN TA TIO N , REGISTRY A N D M A NNIN G R E Q U IR E M E N T S.\xe2\x80\x94\n(a) W ithin six m onths after the date o f enactm ent o f this section, the Secretary of the\nDepartm ent in which the Coast G uard is operating shall issue regulations which require\nthat any vessel, rig, platform , or other vehicle or structure\xe2\x80\x94\n(1) which is used at any time after the one-year period beginning on the effective\ndate o f such regulations for activities pursuant to this Act and which is built or rebuilt\nat any time after such one-year period, when required to be docum ented by the laws\no f the United States, be docum ented under the laws of the United States;\n(2) which is used for activities pursuant to this Act, comply, except as provided in\nsubsection (b), with such minimum standards o f design, construction, alteration, and\nrepair as the Secretary or the Secretary o f the D epartm ent in which the Coast G uard is\noperating establishes, and\n(3) which is used at any time after the one-year period beginning on the effective\ndate o f such regulations for activities pursuant to this Act, be m anned or crewed, ex\xc2\xad\ncept as provided in subsection (c), by citizens o f the United States or aliens lawfully\nadm itted to the United States for permanent residence.\n(b) The regulations issued under subsection (a)(2) o f this section shall not apply to\nany vessel, rig, platform , or other vehicle or structure built prior to the date o f enact\xc2\xad\nment o f this section, until such time after such date as such vehicle or structure is rebuilt.\n(c) The regulations issued under subsection (a)(3) o f this section shall not apply\xe2\x80\x94\n(1) to any vessel, rig, platform , or other vehicle or structure if\xe2\x80\x94\n(A) specific contractual provisions or national registry m anning requirements\nin effect on the date o f enactm ent o f this section provide to the contrary;\n(B) there are not a sufficient num ber o f citizens o f the U nited States, or aliens\nlawfully adm itted to the United States for perm anent residence, qualified and\navailable for such work; or\n(C) the President makes a specific finding, with respect to the particular vessel,\nrig, platform , or other vehicle or structure, that application would not be consist\xc2\xad\nent with the national interest; and\n(2) to any vessel, rig, platform , or other vehicle or structure, over 50 percent of\nwhich is owned by citizens o f a foreign nation or with respect to which the citizens of\na foreign nation have the right effectively to control, except to the extent and to the\ndegree that the President determines that the government o f such foreign nation or\nany o f its political subdivisions has implemented, by statute, regulation, policy, or\npractice, a national manning requirement for equipm ent engaged in the exploration,\ndevelopm ent, or production o f oil and gas in its offshore areas.\n\n365\n\n\x0c\xc2\xa7 1356(a)(3) (1979 Supp.). Unlike the reference to the customs laws quoted\nabove, Congress made no assertion as to whether it thought that the Im\xc2\xad\nmigration and Nationality Act applied through the 1953 Act or the 1978\namendment to \xc2\xa7 1333(a)(1).6 The only conclusion that makes sense,\nhowever, is to assume that \xc2\xa7 30 is intended to be a self-contained statement\no f the extent to which principles o f immigration control are to be applied.\nThe purpose o f the conference committee was to \xe2\x80\x9c reconcile the dual con\xc2\xad\ncerns o f providing the fullest possible employment for Americans in U.S.\nOuter Continental Shelf activities and eliminating to the fullest possible\nextent the likelihood o f retaliation by foreign nations against American\nworkers in foreign offshore activities.\xe2\x80\x9d In addition, exceptions were in\xc2\xad\ncluded \xe2\x80\x9c to avoid any disruption in OCS [Outer Continental Shelf] ac\xc2\xad\ntivities by this manning requirem ent.\xe2\x80\x9d H. Conf. Rept. 1474 at 123-24. If\nthe Immigration and Nationality Act were assumed to be in force on drill\xc2\xad\ning rigs, then the exceptions found in the new controls would be mean\xc2\xad\ningless since the immigration laws do not include authority to create excep\xc2\xad\ntions parallel to those in \xc2\xa7 30, and the 1978 amendments do not purport to\nmodify the Immigration and Nationality Act. As a result the delicate\nbalance that Congress attem pted to strike in \xc2\xa7 30 would be upset.\nWe cannot assume that Congress undertook such a meaningless exer\xc2\xad\ncise. See 2A Sutherland, Statutory Construction \xc2\xa7 46.06 (Sands, ed. 1973).\nThus, the specific coverage o f \xc2\xa7 30 should be given precedence over the\nmore general application o f the provision for assimilating Federal law on\nthe Outer Continental Shelf. Id. at \xc2\xa7 46.05 note l l . 7 The force o f this argu\xc2\xad\nment is emphasized by examining the exceptions in some detail.\n\n\xe2\x80\x98O ur attention has been directed to unpublished transcripts o f m ark-up sessions o f the\nConference Com mittee and the House Ad Hoc Select Com m ittee on the O uter Continental\nShelf which indicate that the applicability o f the immigration laws was briefly discussed. The\ntranscripts show that at the House Com m ittee m ark-up, committee counsel indicated that the\nlaw was uncertain and that he could not say what it was. It does not appear that the members\nexpressed any views o f their own. House o f Representatives, Ad Hoc Select Committee on\nthe O uter C ontinental Shelf, M ark-up Session, H.R. 1614, July 26, 1977, Tr. 133-A, 133-H,\n133-1. At a meeting o f the Conference Com m ittee, counsel advised that the immigration laws\napplied only to American owned and operated platform s; Senator Johnston (La.) expressed a\nsimilar view. Transcript o f July 20, 1978, Conference Com mittee on S. 9 at 9, 14-15. The lat\xc2\xad\nter interpretation presents difficulties o f its own since there seems to be no basis under\n\xc2\xa7 1333(a)(1) or the immigration law for excluding foreign-owned operations taking place on\nthe O uter C ontinental Shelf from the broad scope o f the immigration laws, although \xc2\xa7 30\nmakes such a distinction. U nder all the circumstances, we hesitate to interpret this uncertain\nevidence as showing that Congress shared any com m on intent concerning applications o f the\nimmigration laws.\n\xe2\x80\x99Another interpretation might be to assume that the immigration laws apply but that ex\xc2\xad\nceptions have been impliedly authorized by \xc2\xa7 30. It seems more logical, however, to assume,\nas noted, that Congress, by passing \xc2\xa7 30, gave it precedence over 43 U .S.C . \xc2\xa7 1333(a)(1), than\nto reason that Congress meant to alter provisions o f the immigration laws, a completely\nseparate statute. M oreover, the latter intepretation would create practical difficulties since\nboth your agency and the Coast G uard would be m andated to enforce essentially similar\nregulations. This would create unnecessary duplication and give rise to the possibility o f in\xc2\xad\nconsistent interpretation and adm inistration. In addition, we do not believe that \xc2\xa7 30 divests\nyour agency o f jurisdiction over the immigration laws and assigns it to the Coast G uard. If\nthis had been intended Congress would have so indicated, rather than direct the Coast G uard\nto issue regulations implementing \xc2\xa7 30, which makes no reference to the immigration laws.\n\n366\n\n\x0cFirst, there is an 18-month delay in the effective date o f the restrictions\nfrom the date o f enactm ent. The Coast Guard has 6 m onths to issue\nregulations, which take effect 1 year later. 43 U.S.C. \xc2\xa7 1356(a)(1) and (3);\nH. Conf. Rept. 1474, p. 125.\nSecond, the restrictions do not apply at all to rigs that are foreignowned or foreign-controlled unless the President makes certain findings\nbased on lack o f reciprocity by other nations. 43 U .S.C . \xc2\xa7 1356(c)(2).\nThird, since the requirement only extends to \xe2\x80\x9c m anning\xe2\x80\x9d or \xe2\x80\x9c crewing,\xe2\x80\x9d\nspecialists, professionals, or other technically trained personnel who han\xc2\xad\ndle temporary operations would not be included, H. Conf. Rept. 95-1474\nat 125; 43 U.S.C. \xc2\xa7 1356(a)(3). Fourth, existing contracts that provide for\nforeign manning are preserved. 43 U.S.C. \xc2\xa7 1356(c)(1)(A). Fifth, the\nPresident may make a specific finding that application o f the amendment\nto a particular rig is not in the national interest. 43 U.S.C. \xc2\xa7 1356(c)(1)(C).\nThe only exception in the amendment that parallels the immigration\nlaws is for aliens performing services where there are not a sufficient\nnumber of citizens or resident aliens available to perform such services. 43\nU.S.C. \xc2\xa7 1356(c)(1)(B). The conference report states: \xe2\x80\x9c This is virtually the\npresent standard o f the immigration law.\xe2\x80\x9d H. Conf. Rept. 95-1474 at 124.\nCompare 8 U.S.C. \xc2\xa7 1101(a)(15)(H)(ii). Implicit in that statem ent,\nhowever, appear to be the assumption that an exception, independent of\nthe immigration laws, is being created.8\nIn considering the effect o f the 1978 amendments on the O uter C on\xc2\xad\ntinental Shelf Act, we must view the statute as a whole. See 2A Sutherland,\nStatutory Construction, \xc2\xa7 46.05 (Sands, ed. 1973). We conclude that C on\xc2\xad\ngress, in enacting the 1978 amendments, did not intend the Immigration\nand Nationality Act to apply to drilling rigs on the O uter Continental\nShelf.\nJohn M . H\n\narm on\n\nAssistant A ttorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x98The fact that \xc2\xa7 30 operates independently of the immigration laws is also supported by the\nfact that \xc2\xa7 30 appears to apply in some situations where the immigration laws would not.\nThus, \xc2\xa7 30 directly covers \xe2\x80\x9c any vessel, rig, platform , o r other vehicle or structure.\xe2\x80\x9d If the im\xc2\xad\nmigration laws were to apply, it would be only by incorporation through 43 U .S.C . \xc2\xa7 1333(a)\n(I), which, as noted, does not apply to \xe2\x80\x9c vessels,\xe2\x80\x9d such as supply ships, but only to artificial\nislands and installations and other devices \xe2\x80\x9c permanently or temporarily attached to the\nseabed.\xe2\x80\x9d\n\n367\n\n\x0c"


b'Part-Time Government Official\xe2\x80\x99s Receipt of Compensation for\nRepresentational Work Before the Government\nA s a special g o v ern m en t em ployee, p art-tim e C om m issioner o f F o re ig n C laim s S ettlem en t\nC om m ission is b a rre d by 18 U .S.C . \xc2\xa7 203 from rep resen tin g an y o n e b efo re a co m p o n en t\no f the Ju stice D e p a rtm e n t for com pensation.\nP art-tim e g o v ern m en t official w h o is not a p a rtn e r o f his law firm m ay c o n tin u e to\nreceiv e co m p en satio n from his firm w h ich is attrib u tab le to rep re sen tatio n al w o rk\nb efo re the Ju stice D ep artm en t.\nP art-tim e g o v ern m en t o fficial\xe2\x80\x99s law firm m ay rep re sen t clien ts b efo re an y c o m p o n e n t o f\nth e Ju stice D ep artm en t ex cep t th e C om m ission.\n\nMay 2, 1980\nMEMORANDUM OPINION FOR TH E CHAIRM AN OF TH E\nFOREIGN CLAIMS SETTLEM EN T COMMISSION\nThis confirms the information we gave to Mr. A by telephone con\xc2\xad\ncerning the effect of 18 U.S.C. \xc2\xa7203 on him and the law firm he is\naffiliated with during his contemplated service as a part-time Commis\xc2\xad\nsioner of your agency.\nSection 203(a) in general prohibits an individual from receiving com\xc2\xad\npensation, for representational services performed before a government\ndepartment or agency by \xe2\x80\x9chimself or another . . . at a time when he is\nan officer or employee\xe2\x80\x9d of the government. Section 203(c) narrows to\ntwo situations the prohibition of subsection (a) in relation to a person\nserving as a special government employee (SGE) as defined in 18\nU.S.C. \xc2\xa7 202(a), a category in which we understand Mr. A will be\nplaced when he assumes his office. First, \xc2\xa7 203(c) bars an SGE from\nreceipt of the described compensation if it is derived from a matter in\nwhich he has participated for the government. Second, it bars him from\nthe receipt of such compensation derived from a matter in which he has\nnot so participated, but only (1) if* it is pending in the department or\nagency where he is employed and (2) if the activity giving rise to the\ncompensation occurred at a time when he has served there more than\n60 days during the immediately preceding 365 days.\nAs applied to Mr. A while he holds the position of Commissioner of\nyour agency, \xc2\xa7 203 would preclude him from representing anyone\nbefore a component of the Justice Department for compensation\nwhenever the 60-day provision came into play against him. On the\n603\n\n\x0cother hand, since, as Mr. A informed us, he is not a partner of his firm\nand is not compensated like one, \xc2\xa7 203 will not during the continuation\nof those circumstances preclude his receipt of any payment from the\nfirm which is attributable to its earnings from representational work\nbefore this Department. In short, the prohibition of \xc2\xa7 203 against an\nindividual\xe2\x80\x99s receipt of compensation for services rendered by another\ndoes not extend to an individual employed in a law partnership who\ndoes not share in its profits.\nMr. A \xe2\x80\x99s contemplated occupancy of office as Commissioner will not\nrestrict his firm from representing clients before any component of the\nJustice Department except the Commission. See 18 U.S.C. \xc2\xa7 207(g).\nL eon U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n604\n\n\x0c'


b'Negotiated Sale of Foreign Gifts to Members of Congress\nT he General Services Administration is authorized to negotiate the sale of gifts from\nforeign governments to their original recipients, including Members of Congress, not\xc2\xad\nwithstanding the general prohibition against public contracts with Members of Con\xc2\xad\ngress in 18 U.S.C. \xc2\xa7\xc2\xa7431 and 432.\n\nJune 8, 1981\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL,\nGENERAL SERVICES ADMINISTRATION\nI am responding to your request for this Office\xe2\x80\x99s opinion as to the\nlegality of a proposed negotiated sale to Members of Congress of gifts\ngiven to those Members by foreign governments. As the terms of the\nsale are explained in your letter, we conclude that your proposal would\nnot violate 18 U.S.C. \xc2\xa7\xc2\xa7 431 or 432.\nAccording to your letter, GSA proposes a two-stage sale of certain\ngifts that were given to employees of the U.S. government by foreign\ngovernments. The first stage is a negotiated sale of the gifts to their\noriginal recipients, under 41 C.F.R. 101-49.401 (1980), for a price to be\nset by independent appraisal. The second stage will be a sale by public\nadvertising of those gifts not purchased by their original recipients\nthrough a negotiated sale. It is clear, in general, that the negotiated sale\nof foreign gifts to their original recipients is expressly authorized by 5\nU.S.C. \xc2\xa7 7342(e).1 Your question, however, is whether this authority\nextends to negotiated sales to Members of Congress given the general\nprohibitions against public contracts with Members of Congress that\nappear in 18 U.S.C. \xc2\xa7\xc2\xa7431 and 432.\nIn relevant part, 18 U.S.C. \xc2\xa7431 prohibits certain public contracts\nwith Members of Congress, as follows:\nWhoever, being a Member of or Delegate to Congress,\nor a Resident Commissioner, either before or after he has\nqualified, directly or indirectly, himself, or by any other\nperson in trust for him, or for his use or benefit, or on his\n1Section 7342(e) was amended to authorize negotiated sales by \xc2\xa7515 o f the Foreign Relations\nAuthorization A ct, Fiscal Year 1978, Pub. L. No. 95-105, 91 Stat. 862 (1977). That section first\nappeared only in the Senate version of the Act, but was adopted by the conference committee. Both\nthe Senate committee report and the conference report on the proposed A ct specifically refer to the\npossibility that a negotiated sale m ight be to the original recipient o f .the foreign gift S. Rep No. 194,\n95th Cong., 1st Sess. 30 (1977), H .R . Rep. No. 537, 95th Cong., 1st Sess. 40 (1977).\n\n158\n\n\x0caccount, undertakes, executes, holds, or enjoys, in whole\nor in part, any contract or agreement, made or entered\ninto on behalf of the United States or any agency thereof,\nby any officer jor person authorized to make contracts on\nits behalf, shall be fined not more than $3,000.\nSection 432 of Title 18 imposes criminal penalties on any officer or\nemployee of the United States who, on behalf of the United States,\n\xe2\x80\x9cdirectly or indirectly makes or enters into any contract, bargain, or\nagreement\xe2\x80\x9d with any Member of Congress. These prohibitions, in turn,\nare subject to a number of exceptions specified in 18 U.S.C. \xc2\xa7433. In\nrelevant part, \xc2\xa7 433 provides:\nSections 431 and 432 o f this title shall not extend to any\ncontract or agreement made or entered into, or accepted\nby any incorporated company for the general benefit of\nsuch corporation; nor to the purchase or sale o f bills of\nexchange or other property where the same are ready for\ndelivery and payment therefor is made at the time o f making\nor entering into the contract or agreement.\n\n(Emphasis added.)\nAs your letter points out, the proposed negotiated sales of foreign\ngifts would fall within the letter of the emphasized language of \xc2\xa7 433\nbecause the gifts would be ready for delivery at the time of sale, and\npayment would be made for the gifts at that time. Thus, reading \xc2\xa7 433\non its face, the negotiated sale of foreign gifts to the Members of\nCongress who originally received them, like the negotiated sale of such\ngifts to other government employees, would appear to be authorized by\n5 U.S.C. \xc2\xa7 7342(e) and permitted by 18 U.S.C. \xc2\xa7433. On this basis, your\nown conclusion is that such sales are legally permitted.\nYour evident concern, however, is that, although these sales would\nfall within the literal terms of \xc2\xa7 433, the fact that the proposed sales\nwould be negotiated with Members of Congress prior to public adver\xc2\xad\ntising might possibly give rise to the appearance of the kind of potential\nabuse that gave impetus to the enactment of 18 U.S.C. \xc2\xa7\xc2\xa7431 and 432.\nIt might be argued, for example, that \xc2\xa7 433 was intended only to permit\nsales of government property to Members of Congress when such\nproperty is offered on like terms to all members of the public generally,\ne.g., the sale of postage stamps to all members of the public by U.S.\nPost Offices. Putting aside the question whether this possibility might\never suggest, as a matter of policy, that negotiated sales with Members\nof Congress should not be preferred, we agree with you, as explained\nbelow, that 18 U.S.C. \xc2\xa7\xc2\xa7431-433 do permit, as a matter of law, the\nkind of negotiated sales you propose.\nOur primary reason for this conclusion is the literal language of 18\nU.S.C. \xc2\xa7 433. The plain language of a statute is ordinarily the best\n159\n\n\x0cevidence of what its drafters intended; indeed, in this instance, the\nrecorded legislative deliberations concerning the Act do not shed any\nlight on the A ct\xe2\x80\x99s meaning or purpose.2 Furthermore, because the\nstatutes here in question are criminal statutes, it would pose wellrecognized problems of fairness, perhaps of constitutional dimension, if\na greater scope for the statutes were to be inferrred from considerations\nnot apparent on their face. Busic v. United States, 446 U.S. 398, 406\n(1980); United States v. Bass, 404 U.S. 336, 347-48 (1971) and cases\nthere cited; United States v. Mandel, 415 F. supp. 997, 1022 (D. Md.\n1976).\nFinally, although, under your proposal, the Members of Congress\nwho originally received the gifts in question would enjoy a \xe2\x80\x9cright of\nfirst refusal\xe2\x80\x9d not common to all members of the public, we do not\nbelieve, in any event, that your proposal portends the kind of abuse that\n18 U.S.C. \xc2\xa7\xc2\xa7431 and 432 contemplate. The evident purpose of these\nstatutes, as interpreted in two early formal opinions of the Attorney\nGeneral,3 is to avoid the potential for Members of Congress and em\xc2\xad\nployees of the Executive Branch to exert corrupt influence over one\nanother. In this case, the \xe2\x80\x9cnegotiation\xe2\x80\x9d of a sale of foreign gifts would\nnot raise a significantly greater potential for corruption than any other\nform of sale because no bargaining is to occur between the Members of\nCongress and GSA. Instead, the price to be paid for each gift is to be\ndetermined by an independent appraisal; the price will be the appraised\nvalue, plus the cost of the appraisal. 41 C.F.R. \xc2\xa7 101-49.401 (1980). This\nestablishes a strong safeguard against improper influence on either side.\nOn this basis, we conclude that the negotiated sale of foreign gifts to\ntheir original recipients who are Members of Congress is authorized by\n5 U.S.C. \xc2\xa7 7342(e),4 and that these sales will involve no violations of 41\nU.S.C. \xc2\xa7\xc2\xa7431 or 432.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n2T he relevant provisions now contained in 18 U.S.C. \xc2\xa7\xc2\xa7431-433 were first enacted in the A ct of\nApr. 21, 1808, ch. 48, 2 Stat. 484. See 17 Annals o f Cong. 155-56, 161, 163-64, 171, 178, 330-32, 36869 (1807-08); 18 Annals of Cong. 1509, 1613, 1618-19, 1719-22, 2080, 2173-75 (1808).\n3 "T he object o f the statute is only to prevent jobbing between members of the legislature and the\nExecutive, for the pecuniary advantage of the former.\xe2\x80\x9d 4 Op. A tt\xe2\x80\x99y Gen. 47, 48 (1842); \xe2\x80\x9cThe policy of\nthe law is to prevent the exercise of executive influence over the members of Congress by the means\no f contracts . . .\n2 Op Att\xe2\x80\x99y Gen. 38, 40 (1826).\n4It is clear from the legislative history o f the Foreign Relations Authorization Act, Fiscal Year\n1978, that Congress was aware that the new \xc2\xa77342 would govern the disposition o f foreign gifts to\nMembers of Congress. See 123 Cong. Rec. 26,532-35 (1977) [House debate on conference report]. We\nexpress no views, however, w hether, if we viewed the sales you propose as within the purview o f 18\nU.S C. \xc2\xa7\xc2\xa7431 and 432, 5 U.S.C. \xc2\xa7 7342(e) should be construed as a pro tanto implied repeal o f those\nprohibitions.\n\n160\n\n\x0c'