b'Wiretapping by Members of the\nNaval Intelligence Service\nIn this letter, Attorney General Jackson advises the Secretary of the Navy not to approve and adopt the\nposition taken by the Judge Advocate General of the Navy that records may legally be made of\nprivate communications sent or received by use of telephone facilities controlled by the Navy, with a\nview to the use of such records in prosecutions involving espionage, sabotage, and subversive\nactivities.\n\nJune 9, 1941\n\nLETTER FOR THE SECRETARY OF THE NAVY\nReference is made to the letter of Acting Secretary Forrestal, of May 28, transmitting to me a copy of a confidential opinion of the Judge Advocate General of\nthe Navy, of May 24, 1941, on the subject \xe2\x80\x9cWiretapping by Members of Naval\nIntelligence Service.\xe2\x80\x9d The Judge Advocate General makes certain suggestions\nrespecting methods and means whereby he believes that records may legally be\nmade of private communications sent or received by use of telephone facilities\ncontrolled by the Navy, with a view to the use of such records in prosecutions\ninvolving espionage, sabotage, and subversive activities. My comment and advice\nare requested regarding these suggestions.\nIn view of the decisions of the Supreme Court and of other courts, discussed at\nlength in the enclosed memorandum prepared in this Department, I am unable to\nadvise that the suggestions be approved and adopted by you.\nROBERT H. JACKSON\nAttorney General\n\n447\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\nJune 7, 1941\n\nMEMORANDUM FOR THE ASSISTANT SOLICITOR GENERAL\nThe question raised by the Secretary of the Navy is whether, despite section\n605 of the Communications Act of 1934,1 the commandant or commanding officer\nof any naval station or establishment has authority to tap telephones within the\nconfines of his station for the purpose of obtaining information regarding espionage, sabotage and subversive activities; and also whether, if such conduct is not\nlawful, information obtained from such wiretapping can be admitted as evidence in\ncriminal trials of civilian employees and non-employees.\nThe relative portion of section 605 of the Communications Act of 1934 reads as\nfollows:\n[A]nd no person not being authorized by the sender shall intercept\nany communication and divulge or publish the existence, contents,\nsubstance, purport, effect, or meaning of such intercepted communication to any person . . . .\n47 U.S.C. \xc2\xa7 605 (1940).\nSection 605 has been discussed in three decisions of the Supreme Court and in\na number of lower federal court decisions. The answer to the Secretary\xe2\x80\x99s question\nrequires a brief consideration of these cases.\nThe first case reaching the Supreme Court was Nardone v. United States, 302\nU.S. 379 (1937) (\xe2\x80\x9cNardone I\xe2\x80\x9d). The question involved was whether evidence\nprocured through the tapping of telephone wires by federal officers was admissible\nin a criminal trial in a United States district court. The Court held that the tapping\nof telephone wires by a federal officer was a violation of section 605 and that the\nevidence so obtained was inadmissible.* Justice Roberts, speaking for the majority,\nstated:\n\n1\n\nPub. L. No. 73-416, \xc2\xa7 605, 48 Stat. 1064, 1103\xe2\x80\x9304 (codified at 47 U.S.C. \xc2\xa7 605 (1940)).\nEditor\xe2\x80\x99s Note: Decisions of the Supreme Court after Nardone I appeared to regard it as an open\nquestion whether section 605 prohibited the mere interception of wire communications. See, e.g., Rathbun\nv. United States, 355 U.S. 107, 108 n.3 (1957); Benanti v. United States, 355 U.S. 96, 100 n.5 (1957). With\nthe exception of a three-month period during 1940, when Attorney General Robert Jackson \xe2\x80\x9cprohibited all\nwiretapping by the Federal Bureau of Investigation,\xe2\x80\x9d Final Report of the Select Committee to Study\nGovernmental Operations with Respect to Intelligence Activities, S. Rep. No. 94-755, bk. III, 279 (1976)\n(\xe2\x80\x9cChurch Comm. Rep.\xe2\x80\x9d), the Department interpreted section 605 as not \xe2\x80\x9cprohibiting the interception of\nwire communications per se, [but] only the interception and divulgence of their contents outside the\nfederal establishment.\xe2\x80\x9d Id. at 278; accord Interception of Radio Communication, 3 Op. O.L.C. 240, 245\n(1979). This approach was consistent with President Roosevelt\xe2\x80\x99s directive to Attorney General Jackson on\nthe use of wiretaps, see Church Comm. Rep. at 279 (quoting a memorandum from the President to the\nAttorney General, dated May 21, 1940), and statements to Congress by Attorneys General Jackson and\nBiddle, see id. at 280\xe2\x80\x9381; Authorizing Wire Tapping in the Prosecution of the War: Hearings on H.J. Res.\n283 Before the H. Comm. on the Judiciary, 77th Cong. 2 (1942).\n*\n\n448\n\n\x0cWiretapping by Members of the Naval Intelligence Service\n\nTaken at face value the phrase \xe2\x80\x9cno person\xe2\x80\x9d comprehends federal\nagents, and the ban on communication to \xe2\x80\x9cany person\xe2\x80\x9d bars testimony to the content of an intercepted message. Such an application of\nthe section is supported by comparison of the clause concerning intercepted messages with that relating to those known to employees of\nthe carrier. The former may not be divulged to any person, the latter\nmay be divulged in answer to a lawful subpoena.\n302 U.S. at 381.\nIn answer to the government\xe2\x80\x99s contention that the legislative history of section\n605 showed no intention on the part of Congress that wiretapping by federal\nofficers be prohibited, Justice Roberts stated:\nWe nevertheless face the fact that the plain words of \xc2\xa7 605 forbid\nanyone, unless authorized by the sender, to intercept a telephone\nmessage, and direct in equally clear language that \xe2\x80\x9cno person\xe2\x80\x9d shall\ndivulge or publish the message or its substance to \xe2\x80\x9cany person.\xe2\x80\x9d To\nrecite the contents of the message in testimony before a court is to\ndivulge the message. The conclusion that the act forbids such testimony seems to us unshaken by the government\xe2\x80\x99s arguments.\nId. at 382.\nIt is urged that a construction be given the section which would\nexclude federal agents since it is improbable Congress intended to\nhamper and impede the activities of the government in the detection\nand punishment of crime. The answer is that the question is one of\npolicy. Congress may have thought it less important that some offenders should go unwhipped of justice than that officers should resort to methods deemed inconsistent with ethical standards and destructive of personal liberty. The same considerations may well have\nmoved the Congress to adopt \xc2\xa7 605 as evoked the guaranty against\npractices and procedure violative of privacy, embodied in the Fourth\nand Fifth Amendments of the Constitution.\nId. at 383.\nJustices Sutherland and McReynolds dissented on the ground that the word\nperson, as used in the Act, did not apply to federal officers and that Congress had\nnot intended to tie the hands of government enforcement agencies by such\nrestrictions. Id. at 385.\nThe Nardone case came back to the Supreme Court two years later. Nardone v.\nUnited States, 308 U.S. 338 (1939) (\xe2\x80\x9cNardone II\xe2\x80\x9d). This time the issue was\nwhether section 605 not only forbade the introduction of evidence obtained\ndirectly by wiretapping, but also prohibited the admission of evidence procured\n\n449\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nthrough the use of knowledge derived from the wiretapping. The Court upheld the\nlatter interpretation. Reversing the court below, Justice Frankfurter, speaking for\nthe majority, stated:\nWe are here dealing with specific prohibition of particular methods in obtaining evidence. The result of the holding below is to reduce the scope of \xc2\xa7 605 to exclusion of the exact words heard\nthrough forbidden interceptions, allowing these interceptions every\nderivative use that they may serve. Such a reading of \xc2\xa7 605 would\nlargely stultify the policy which compelled our decision in [Nardone I]. That decision was not the product of a merely meticulous\nreading of technical language. It was the translation into practicality\nof broad considerations of morality and public well-being. This\nCourt found that the logically relevant proof which Congress had\noutlawed, it outlawed because \xe2\x80\x9cinconsistent with ethical standards\nand destructive of personal liberty.\xe2\x80\x9d [302 U.S. at 383.] To forbid the\ndirect use of methods thus characterized but to put no curb on their\nfull indirect use would only invite the very methods deemed \xe2\x80\x9cinconsistent with ethical standards and destructive of personal liberty.\xe2\x80\x9d\nWhat was said in a different context in Silverthorne Lumber Co. v.\nUnited States, 251 U.S. 385, 392 [(1920)], is pertinent here: \xe2\x80\x9cThe essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all.\xe2\x80\x9d See Gouled v.\nUnited States, 255 U.S. 298, 307 [(1921)]. A decent respect for the\npolicy of Congress must save us from imputing to it a self-defeating,\nif not dangerous purpose.\nId. at 340\xe2\x80\x9341.\nJustice McReynolds dissented without opinion. Justice Reed did not participate.\nId. at 343.\nThe third case decided by the Supreme Court is Weiss v. United States, 308\nU.S. 321 (1939). Here the issue was whether section 605 applied to the interception, not only of interstate communications, but also of intrastate communications.\nThe Court held that the Congress had the power to, and intended to, prohibit\ninterception of both interstate and intrastate communications. Justice Roberts,\nwriting for a unanimous Court, stated:\nPlainly the interdiction thus pronounced is not limited to interstate\nand foreign communications. And, as Congress has power, when\nnecessary for the protection of interstate commerce, to regulate intrastate transactions, there is no constitutional requirement that the\nscope of the statute be limited so as to exclude intrastate communications.\n\n450\n\n\x0cWiretapping by Members of the Naval Intelligence Service\n\n....\nWe hold that the broad and inclusive language of the second clause\nof the section is not to be limited by construction so as to exclude intrastate communications from the protection against interception and\ndivulgence.\nId. at 327, 329 (footnote omitted).\nThe government likewise made the claim in the Weiss case that the disclosure\nof the intercepted communications was \xe2\x80\x9cauthorized by the sender\xe2\x80\x9d and therefore\nadmissible. It appeared that certain of the defendants, upon being told that their\nconversations had been intercepted, turned state\xe2\x80\x99s evidence and testified to the\nconversations. The Court rejected the government\xe2\x80\x99s contention, pointing out that\nthe conversations had been intercepted before consent was given and that, in any\nevent, the consent was not voluntary but \xe2\x80\x9cenforced\xe2\x80\x9d:\nStatement of these facts is convincing that the so-called authorization consisting of the agreement to turn state\xe2\x80\x99s evidence, by some of\nthe defendants after they had been apprized of the knowledge of their\ncommunications by the Government\xe2\x80\x99s representatives, and in the\nhope of leniency, was not that intended or described by the statute\nand emphasi[ze] the offensive use which may be made of intercepted\nmessages, whether interstate or intrastate. It is not too much to assume the interdiction of the statute was intended to prevent such a\nmethod of procuring testimony.\n308 U.S. at 330\xe2\x80\x9331.\nThere have been a number of decisions on section 605 by the lower federal\ncourts, but only three cases have any direct bearing on the issue here. In United\nStates v. Polakoff, 112 F.2d 888 (2d Cir. 1940),* it appeared that the defendants\nhad approached one Kafton, who was under indictment, and offered to procure a\nlight sentence for him if Kafton would pay them a sum of money. Kafton reported\nthis to the District Attorney, who sent him to the FBI. Through a telephone in the\nFBI office, Kafton talked with the defendants, and the conversations were recorded\non a machine fixed to an extension of the telephone that Kafton was using.\nSubsequently, the defendants were tried and convicted for the conspiracy to\nobstruct justice, and the question on appeal was whether or not the telephone\nconversations had been properly admitted. The government argued that the\nconversations were admissible because Krafton was the \xe2\x80\x9csender\xe2\x80\x9d and had given his\n\n*\nEditor\xe2\x80\x99s Note: Polakoff was later overruled by Rathbun v. United States, 355 U.S. 107 (1957). The\nCourt in Rathbun held that it did not constitute an \xe2\x80\x9cinterception\xe2\x80\x9d under section 605 for law enforcement, with consent from one party, to employ a regularly-used telephone extension to listen in on a\nconversation. Id. at 107\xe2\x80\x9311.\n\n451\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nconsent to the recording, and because, in any event, the message had not been\n\xe2\x80\x9cintercepted.\xe2\x80\x9d The court rejected both contentions and held the conversations\ninadmissible. On the first point, the court ruled that in a telephone conversation\neach party must be deemed the \xe2\x80\x9csender\xe2\x80\x9d within the meaning of section 605, and,\ntherefore, both must give consent to the interception. As to the second point, Judge\nLearned Hand stated:\nMoreover, the recording was an \xe2\x80\x9cinterception.\xe2\x80\x9d It is true that in\nthe three decisions in which the Supreme Court has interpreted [section] 605, . . . the prosecuting agents had physically interposed some\nmechanism in the circuit as it had been constructed for normal use; at\nleast that is what we understand by a \xe2\x80\x9ctap.\xe2\x80\x9d That was not the case\nhere; the recording machine was merely fixed to an existing \xe2\x80\x9cextension\xe2\x80\x9d of the familiar kind in an adjoining room. We assume that the\nsituation would have been no different, had the agent merely listened\nat the extension, and taken down what he heard by shorthand. The\nstatute does not speak of physical interruptions of the circuit, or of\n\xe2\x80\x9ctaps\xe2\x80\x9d; it speaks of \xe2\x80\x9cinterceptions\xe2\x80\x9d and anyone intercepts a message\nto whose intervention as a listener the communicants do not consent;\nthe means he employs can have no importance; it is the breach of\nprivacy that counts. We need not say that a man may never make a\nrecord of what he hears on the telephone by having someone else listen at an extension, or, as in the case at bar, even by allowing him to\ninterpose a recording machine. The receiver may certainly himself\nbroadcast the message as he pleases, and the sender will often give\nconsent, express or implied, to the interposition of a listener. Party\nlines are a good illustration; and it would be unwise to try in advance\nto mark the borders of such implications. Here, however, we need\nnot be troubled by niceties, because, no matter what the scope of any\nsuch implied consent, it cannot extend to the intervention of prosecuting agents bent upon trapping the \xe2\x80\x9csender\xe2\x80\x9d criminally. Violation\nof the privilege, we are admonished, is so grave a dereliction as to be\n\xe2\x80\x9cdestructive of personal liberty\xe2\x80\x9d [(Nardone I, 302 U.S. at 383)] and if\nit is not to be sham and illusion, it must protect its possessor at least\nagainst such intrusions. \xe2\x80\x9cA decent respect for the policy of Congress\nmust save us from imputing to it a self-defeating, if not disingenuous\npurpose.\xe2\x80\x9d [Nardone II, 308 U.S. at 341.] United States v. Yee Ping\nJong, [26 F. Supp. 69 (W.D. Pa. 1939)], is to the contrary, but does\nnot persuade us.\nId. at 889\xe2\x80\x9390.\nJudge Augustus Hand concurred. Id. at 890. Judge Clark dissented in a long\nopinion, saying:\n\n452\n\n\x0cWiretapping by Members of the Naval Intelligence Service\n\nThere can be no real distinction\xe2\x80\x94there is none suggested in the statute or by common sense\xe2\x80\x94between these recordings and a transcription made by a private secretary over the telephone in an outer office,\nor by a servant on an upstairs extension in a house, or even by a person listening at the telephone receiver held by the party to the conversation. Nor can it be of importance whether the transcriber or the\nparty first makes the suggestion for the recording; in either event it is\nthe party who has the power to direct or prohibit its transcription.\nNeither is it important whether evidence of the conversation comes\nfrom the mechanical device of a record or from testimony of those\ndirected to listen in, except that the mechanical device gives the more\ntrustworthy evidence. Indeed, in the Fallon case the agents themselves testified as to what they had overheard, testimony which must\nbe considered objectionable under the decision here.\nId. at 891.\nIn a companion case, the court ruled the same way in a situation where the\nconversations had been intercepted by the installation of the recording device in\nthe house of the chief witness and with his consent. United States v. Fallon, 112\nF.2d 894 (2d Cir. 1940) (per curiam).\nIn United States v. Yee Ping Jong, 26 F. Supp. 69 (W.D. Pa. 1939), a federal\ndistrict court reached a somewhat different conclusion from the Second Circuit in\nthe Polakoff case. In the Yee Ping Jong case, federal agents employed one Loui\nWong as an informer and an interpreter, and at the direction of the agent Loui,\nWong called the defendant on the telephone from a house belonging to an\nassociate of the agent. A recording of the conversation was made by a device\nattached to an extension of the \xe2\x80\x9cphone.\xe2\x80\x9d The court held the intercepted conversation admissible on the ground that the recording did not constitute an \xe2\x80\x9cinterception\xe2\x80\x9d within the meaning of the statute, saying:\nThe call to the defendant was made by Agent White, and the conversation between his interpreter and the defendant was not obtained by\na \xe2\x80\x9ctapping of the wire\xe2\x80\x9d between the locality of call and the locality of\nanswer by an unauthorized person, but was, in effect, a mere recording of the conversation at one end of the line by one of the participants. It differed only in the method of recording from a transcription\nof a telephone conversation made by a participant. We are of opinion\nthat the admission of the record in evidence was not error.\nId. at 70.\nIn the Polakoff case, Judge Learned Hand stated that the Yee Ping Jong case\nwas inconsistent with the majority decision and refused to follow it. 112 F.2d at\n890. It should be noted, however, that the Yee Ping Jong case might be distin-\n\n453\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nguished from the Polakoff case on the ground that Loui Wong acted merely as\ninterpreter for the federal agent, rather than on his own initiative.\nThere is nothing in the history of section 605 which throws any light on the\nissue here presented. Indeed, it is not clear from the legislative history that\nCongress intended section 605 to prohibit wiretapping by government officers at\nall. That issue, however, is, of course, settled otherwise by the Supreme Court\ndecisions, just mentioned.\nViewed in the light of the foregoing decisions, it seems to me rather clear that\nsection 605 prohibits the tapping of telephone wires even within the confines of a\ngovernment building. As the Supreme Court pointed out in the first Nardone case,\nthat statute provides that \xe2\x80\x9cno person\xe2\x80\x9d shall intercept any communication and\ndivulge it to \xe2\x80\x9cany person.\xe2\x80\x9d Certainly the interception of calls by a member of the\nNaval Intelligence Service and the divulging of the contents thereof to a superior\nwould fall within the literal terms of the statute. Neither the fact that one of the\nparties to the call was an employee of the Navy Department, nor the fact that the\ncall was made to or from a government building, would seem to afford the\ninterception immunity from the precise terms of the act. Nor would an authorization of the interception by the government employee involved justify such\ninterception in the absence of authorization by the other party. *\nThe Supreme Court has shown every disposition to give the words of the statute\ntheir strict literal meaning. It is difficult to see, therefore, how the action of the\nSecretary of the Navy can be sanctioned under the Supreme Court decisions.\nMoreover, the Polakoff case seems even more in point. For in that case, the call\nwas actually made from a government office and was intercepted by a device\nattached to an extension phone in the government office.\nThe Judge Advocate General of the Navy suggests in his memorandum that a\nmember of the Naval Intelligence Service (or presumably any other employee of\nthe Navy Department) employed as a switchboard operator should be permitted to\ndivulge to a superior officer the contents of a conversation which he has received,\nassisted in receiving, or transmitted while assigned to duty at the switchboard. For\nthe reasons just stated, such an interception would seem clearly prohibited by that\nportion of section 605 which has heretofore been considered. The Judge Advocate\nGeneral argues, however, that interception in this manner would be justified under\nthe first clause of section 605, which reads as follows:\nNo person receiving or assisting in receiving, or transmitting, or\nassisting in transmitting, any interstate or foreign communication by\nwire or radio shall divulge or publish the existence, contents, sub*\nEditor\xe2\x80\x99s Note: Later, in Rathbun, the Supreme Court held that one-party consent was sufficient in\nsome circumstances to permit the government to monitor and divulge communications without\nviolating section 605. 355 U.S. at 108\xe2\x80\x9311. See also United States v. Hodge, 539 F.2d 898, 905 (6th Cir.\n1976) (\xe2\x80\x9cIt is well settled that there is no violation of the Act if the interception was, as here, authorized\nby a party to the conversation.\xe2\x80\x9d).\n\n454\n\n\x0cWiretapping by Members of the Naval Intelligence Service\n\nstance, purport, effect, or meaning thereof, except through authorized\nchannels of transmission or reception, to any person other than the\naddressee, his agent, or attorney, or to a person employed or authorized to forward such communication to its destination, or to proper\naccounting or distributing officers of the various communicating centers over which the communication may be passed, or to the master\nof a ship under whom he is serving, or in response to a subpena issued by a court of competent jurisdiction, or on demand of other lawful authority.\n47 U.S.C. \xc2\xa7 605.\nIt seems clear, however, that the purpose of the clause just quoted is to protect\npersons employed as telephone and telegraph operators whose duties as such\nrequire disclosure of communications to other persons. The suggestion of the\nJudge Advocate General contemplates the disclosure of communications by agents\nof the Naval Intelligence Service not in their capacity as switchboard operators,\nbut in their capacity as wiretappers. The interception would, therefore, not seem\njustified under the provision quoted.\nThe Judge Advocate General argues that the words \xe2\x80\x9con demand of other lawful\nauthority\xe2\x80\x9d in the clause above cited includes the demand of a superior in the\nDepartment. This phrase, however, quite clearly refers to demands by administrative bodies, legislative committees and the like, not to demand by a superior for\npurposes not in connection with the receipt or transmission of the communication.\nIn fact, the Judge Advocate General\xe2\x80\x99s interpretation\xe2\x80\x94in effect permitting the\nsuperior officer of a telephone or telegraph operator to obtain and disclose any\ncommunication\xe2\x80\x94would make the entire clause meaningless.\nThe Judge Advocate General also suggests in his memorandum that, since the\ngovernment may permit the use of its telephone lines and equipment by persons\noutside the government on whatever terms it sees fit, it can by regulation, published in the Federal Register, stipulate as a condition for the use of its phones that\nall conversations be recorded and reported to lawful authority. It is argued that in\nthis way any person voluntarily using the telephone would be deemed to have\naccepted the conditions and thereby \xe2\x80\x9cauthorize\xe2\x80\x9d the recording and divulging of the\nconversation. My own feeling is that this proposal is a subterfuge which should not\nbe approved for the following reasons:\n1. The device proposed, if sanctioned, might well lead to a total breakdown of\nsection 605. If the government can obtain constructive authorization in this way,\npresumably other users of the telephone can do the same thing. Thus any corporation, organization, or individual would be empowered to announce a similar\ncondition; or the telephone or telegraph companies themselves would have\nauthority to limit the use of their lines or wires on such terms. If the practice\nbecame widespread, the safeguards of section 605 would, of course, be entirely\nnegatived.\n\n455\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\n2. I am inclined to doubt that, in view of the nature of the interests protected by\nsection 605\xe2\x80\x94the right to privacy\xe2\x80\x94mere constructive notice of a regulation would\nbe sufficient to imply authorization for interception of the communication. It is\nhard to see how an invasion of the right to privacy can be authorized by an\nindividual who does not have actual knowledge of the invasion.\n3. The device suggested would seem to be unquestionably unlawful in certain\nsituations. Thus, where an individual was called from a government building\nwithout being aware of the fact that the call originated in such building, there can\nhardly be doubt that the interception would be prohibited by the statute. It would,\nof course, be impossible to separate out such calls from other calls which were\nbeing intercepted. On the theory of the Weiss case, which is based on the inability\nto separate intrastate calls from interstate calls, the device would not seem to be\nwarranted.\nJustice Holmes, dissenting in the Olmstead case, characterized wiretapping as\n\xe2\x80\x9cdirty business.\xe2\x80\x9d Olmstead v. United States, 277 U.S. 438, 470 (1928). And Justice\nRoberts in the first Nardone case referred to it as a device \xe2\x80\x9cinconsistent with\nethical standards and destructive of personal liberty.\xe2\x80\x9d 302 U.S. at 383.\nThe Supreme Court has interpreted section 605 strictly in the light of this view\nof wiretapping. It does not appear, therefore, that the Court would approve any\nattempt to evade the comprehensive purpose of the statute, either by permitting the\npractice in government buildings or by attempting to secure constructive authorization.\nI have talked informally with Mr. Telford Taylor, General Counsel of the Federal Communications Commission, and he agrees with the conclusions above\nexpressed.\nT.I. EMERSON*\nAttorney-Adviser\nOffice of the Assistant Solicitor General\n\n*\nEditor\xe2\x80\x99s Note: The author of this memorandum was Thomas I. Emerson, who later became a\nprofessor at Yale Law School, successfully argued the petitioner\xe2\x80\x99s case in Griswold v. Connecticut, 381\nU.S. 479 (1965), and wrote a significant treatise on the First Amendment, The System of Freedom of\nExpression (1970). See Glenn Fowler, Thomas I. Emerson, 83, Scholar Who Molded Civil Liberties\nLaw, N.Y. Times, June 22, 1991, at 21.\n\n456\n\n\x0c'


b"Applicability of 18 U.S.C. \xc2\xa7 208 to the Federal Communications\nCommission\xe2\x80\x99s Representative on the Board of Directors of the\nTelecommunications Development Fund\nB ecause the T eleco m m u n ications D evelopm ent Fund is a non-profit entity that is ow ned, funded, and\nco n tro lled by the federal governm ent, it is not an \xe2\x80\x9c o rganization\xe2\x80\x9d w ithin the m eaning o f 18 U S.C.\n\xc2\xa7 208. T herefore, the restrictions in \xc2\xa7 2 0 8 do not apply to the service o f the Federal C om m unica\xc2\xad\ntions C o m m issio n \xe2\x80\x99s G eneral Counsel on the Board o f D irectors o f the Fund.\n\nJune 12, 1997\nM\n\nem orandum\n\nA\n\nO\n\np in io n f o r t h e\n\nlternate\n\nA s s o c ia t e G e n e r a l C o u n s e l\n\nand\n\nD e s i g n a t e d A g e n c y E t h i c s O f f ic ia l\n\nF e d e r a l C o m m u n i c a t i o n s C o m m is s io n\n\nThis memorandum responds to your request for an opinion whether the appoint\xc2\xad\nment of the General Counsel o f the Federal Communications Commission\n(\xe2\x80\x9c FC C \xe2\x80\x9d ) to the Board of Directors o f the Telecommunications Development Fund\n(\xe2\x80\x9c TD F\xe2\x80\x9d ) has created the possibility of a conflict of interest under 18 U.S.C. \xc2\xa7 208\n(1994) or a breach of fiduciary duty.1 We have concluded that because the TDF\nis owned, funded, and controlled by the federal government, it is not an \xe2\x80\x98\xe2\x80\x98organiza\xc2\xad\ntion\xe2\x80\x9d within the meaning o f \xc2\xa7 208, and that section\xe2\x80\x99s restrictions thus do not apply\nto the General Counsel\xe2\x80\x99s service on the TDF board. Because the existence or\nscope o f a TDF director\xe2\x80\x99s fiduciary duty to the TDF is not material to our analysis,\nand because such a determination is a subject beyond our particular expertise,\nwe have not addressed that question in our opinion.\nI. B ackground\nCongress established the TDF as part of the Telecommunications Act of 1996,\nPub. L. No. 104-104, \xc2\xa7707, 110 Stat. 56, 154 ( \xe2\x80\x9c the Act\xe2\x80\x9d ) \xe2\x80\x9c to promote access\nto capital for small businesses in order to enhance competition in the telecommuni\xc2\xad\ncations industry.\xe2\x80\x9d 47 U.S.C. \xc2\xa7614(a)(l) (Supp. II 1996). The TDF will operate\nas a non-profit \xe2\x80\x9c quasi-govemmental entity.\xe2\x80\x9d H.R. Conf. Rep. No. 104-458, at\n210-11 (1996) ( \xe2\x80\x9c Conference Report\xe2\x80\x9d ). The TD F\xe2\x80\x99s primary source of funds is\nthe interest accrued on the deposits o f parties making competitive bids on electro\xc2\xad\nmagnetic spectrum bandwidth, 47 U.S.C. \xc2\xa7309(j) (1994); the Act also authorizes\nthe TDF to receive appropriations and to accept donations. The TDF funds will\nbe used for loans, investments, and other extensions of credit to eligible small\nbusinesses. 47 U.S.C. \xc2\xa7 614(e).\n1 See Letter for Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Sheldon M. Guttman,\nAssociate General Counsel and Alternate Designated Agency Ethics Official, Federal Communications Commission\n(May 30, 1996).\n\n96\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7208 to the Federal Communications Commission\xe2\x80\x99s Representative on the\nBoard o f Directors o f the Telecommunications Development Fund\n\nThe TDF is governed by a seven member board of directors appointed by the\nFCC Chairman. 47 U.S.C. \xc2\xa7 614(c)(1). \xe2\x80\x9c Four of such directors shall be representa\xc2\xad\ntive of the private sector and three of such directors shall be representative of\nthe [FCC], the Small Business Administration, and the Department of the\nTreasury, respectively.\xe2\x80\x9d Id. The board of directors determines the general policies\ngoverning the operation of the TDF, approves the TDF Chairman\xe2\x80\x99s appointments\nof persons to fill the offices provided for in its bylaws, and defines the TDF\xe2\x80\x99s\nlending policies. Id. \xc2\xa7 614(c)(3), (f)(4).\nAs of the date of your request, the FCC Chairman had appointed two members\nof the TDF board: the board\xe2\x80\x99s chairman, who is a representative of the private\nsector, and the General Counsel of the FCC, Mr. William E. Kennard, who is\na representative of the FCC. Mr. Kennard will continue as the General Counsel\nof the FCC while serving on the TDF board. He will not receive any compensation\nfor his service on the TDF board. You are concerned that this dual role may\nraise the possibility of a conflict of interest under 18 U.S.C. \xc2\xa7 208.\n\nn . Discussion\nUnder 18 U.S.C. \xc2\xa7 208(a), an officer or employee of the executive branch gen\xc2\xad\nerally is prohibited from participating personally and substantially for the govern\xc2\xad\nment in a \xe2\x80\x9c particular matter in which . . . [an] organization in which he is serving\nas officer, director, trustee, partner or employee . . . has a financial interest.\xe2\x80\x9d\nSection 208 thus usually would require a government official to be disqualified\nfrom taking part in a particular matter affecting the financial interest of an\norganization on whose board of directors he or she sits.2\nWe have not before considered, however, whether \xc2\xa7208 applies to a federal\nemployee\xe2\x80\x99s service on the board of a quasi-govemmental organization where each\nmember of the board is appointed by a federal officer. Section 208 is premised\non the concern that a federal official\xe2\x80\x99s personal obligations may conflict with the\nduties of his or her public office.3 Section 208 was not meant to cover conflicts\nthat might arise between the different interests of two federal entities. If the TDF\nis properly considered a governmental entity rather than a private entity, any\npotential conflict between the federal offical\xe2\x80\x99s duties to the FCC and his duties\nas a director of the TDF would be an intra-govemmental conflict between two\narms of the federal government, rather than a conflict between the interests of\n\n2 See Memorandum for David H. Martin, Director, Office of Government Ethics, from Samuel A. Alito, J r , Deputy\nAssistant Attorney General, Office of Legal Counsel, Re USfA Director's Service on the Board o f the United States\nTelecommunications Training Institute at I (Dec 3, 1986).\n3 See Questions Raised by the Attorney General\xe2\x80\x99s Service as a Trustee o f the National Trust for Historic Preserva\xc2\xad\ntio n ^ Op O.L.C 443,446(1982).\n\n97\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nthe federal government and the interests of an outside organization.4 We thus\nbegin by examining whether the TDF is a private entity for purposes of \xc2\xa7208.\nA. Section 208\xe2\x80\x99s Applicability to Organizations in the Federal Government\nSection 208 generally disqualifies an executive branch employee from partici\xc2\xad\npating for the government in a particular matter in which an \xe2\x80\x9c organization in\nwhich he is serving as a[] . . . director\xe2\x80\x9d has a financial interest. 18 U.S.C.\n\xc2\xa7 208(a). Because the term \xe2\x80\x9c organization\xe2\x80\x9d is not defined in the statute, we have\nexamined \xc2\xa7 2 0 8 \xe2\x80\x99s legislative history for indications as to what types of entities\nCongress intended the term to include.\nAccording to the Senate Report that accompanied the Bribery, Graft and Con\xc2\xad\nflicts of Interest Act of 1962, Pub. L. No. 87-849, 76 Stat. 1119, Congress used\nthe term \xe2\x80\x9c organization\xe2\x80\x9d in \xc2\xa7208 in order to reach potential conflicts with both\nnon-profit and for-profit entities outside of the federal government. S. Rep. No.\n87-2213, at 14 (1962), reprinted in 1962 U.S.C.C.A.N. 3852, 3862. Section 208\nwas modeled on the former \xc2\xa7434 o f title 18, which \xe2\x80\x9c disqualifie[d] an employee\nof the Government who has an interest in the profits or contracts of a business\nentity from the transaction of business with such entity.\xe2\x80\x9d Id. at 13, reprinted in\n1962 U.S.C.C.A.N. at 3862. Section 208(a) was intended to improve upon \xc2\xa7434\n\xe2\x80\x9c by abandoning the limiting concept of a \xe2\x80\x98transaction of business,\xe2\x80\x99 \xe2\x80\x9d instead\nembracing \xe2\x80\x9c any participation on behalf of the Government in a matter in which\nthe employee has an outside financial interest.\xe2\x80\x9d Id. (emphasis added). The\nreplacement of the term \xe2\x80\x9c business organization\xe2\x80\x9d with the more inclusive\n\xe2\x80\x9c organization,\xe2\x80\x9d the Senate Report further states, was also intended to clarify that\nemployees were not to act for the government in matters involving non-profit\ncorporations to which they were connected. Id. at 14, reprinted in 1962\nU.S.C.C.A.N. at 3862 (noting the many universities, non-profit foundations, and\nresearch entities then engaged in government work). The Senate Report nowhere\n4 In general, the same person may hold more than one office in the executive branch See Memorandum for Philip\nB Heymann, Deputy Attorney General, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel,\nRe Creation o f an Office o f Investigative Agency Policies at 6 (Oct 26, 1993) (repeal of prohibition on dual officeholding and enactment of statute prohibiting dual compensation impliedly permits holding two offices simulta\xc2\xad\nneously) Our office has suggested, however, that the common law doctrine of \xe2\x80\x9c incompatibility\xe2\x80\x9d might in some\ncases limit the ability of a person to hold two offices at Che same time Two offices are \xe2\x80\x9c incompatible\xe2\x80\x9d at common\nlaw if public policy would make it improper for one person to perform both functions, as where, for example,\nCongress creates one of the two offices as a \xe2\x80\x9c statutory check\xe2\x80\x9d on the other. See, e g . Memorandum for Arnold\nIntrater, General Counsel, Office of White House Administration, from John O McGinnis, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, Re Dual Office o f Executive Secretary o f National Security Council and Special\nAssistant at 3-4 (Mar 1, 1988) (also noting possible incompatibility where the official interests of the two positions\nconflict or where one office adjudicates matters in which the other is a party). While this office has \xe2\x80\x9c continued\nto refer to the doctrine in our opinions,\xe2\x80\x9d we have recognized that \xe2\x80\x9c [i]t is arguable that it has either fallen into\ndesuetude or been repealed by statute\xe2\x80\x9d Memorandum for Edward C Schmults, Deputy Attorney General, from\nTheodore B Olson, Assistant Attorney General, Office of Legal Counsel, Re- Appointment o f D. Lowell Jensen\nas Associate Attorney G eneral at 3, 4 (June 14, 1983) You have not asked, and this opinion does not address,\nwhether the offices of General Counsel of the FCC and service on the TDF Board are incompatible, but we would\nbe pleased to assist you with that question if you believe it is an issue.\n\n98\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7208 to the Federal Communications Commission's Representative on the\nBoard o f Directors o f the Telecommunications Development Fund\n\nsuggests an intention to bar federal employees from involvement in matters\naffecting other federal agencies, or federally owned and controlled corporations.5\nB. The TDF is a Federal Government Entity for Purposes of Section 208\nWe thus turn to the question of whether the TDF may be characterized as a\npart of the federal government for purposes of \xc2\xa7208, or whether it should be\ndeemed an outside, non-governmental organization triggering that section\xe2\x80\x99s restric\xc2\xad\ntions. The Telecommunications Act does not address whether service on the TDF\nboard is to be considered service on a non-governmental organization within the\nmeaning of \xc2\xa7208, and offers no definitive statement of the TDF\xe2\x80\x99s status in or\nwith the federal government. The Conference Report\xe2\x80\x99s only comment on the status\nof the TDF is that it \xe2\x80\x9c is formulated to serve as a quasi-govemmental entity.\xe2\x80\x9d\nConference Report at 210.\nThis lack of definition is not unusual. While the United States has long\nemployed the corporate form to achieve governmental objectives,- see generally\nLebron v. N a t\xe2\x80\x99l R.R. Passenger Corp., 513 U.S. 374, 386-91 (1995), there is\n\xe2\x80\x9c no comprehensive descriptive definition of or criteria for creating government\ncorporations.\xe2\x80\x9d U.S. General Accounting Office, Government Corporations, 2-3\n(December 1995) (\xe2\x80\x9c GAO Report\xe2\x80\x9d ). The Government Corporations Control Act,\n31 U.S.C. \xc2\xa7\xc2\xa79101-9110, imposes various recordkeeping, reporting, and budgetary\nrequirements on the \xe2\x80\x9c wholly owned\xe2\x80\x9d and \xe2\x80\x9c mixed ownership\xe2\x80\x9d government cor\xc2\xad\nporations listed in \xc2\xa79101 of that statute, but does not purport to list all o f the\ncorporate entities in which the federal government presently participates. The TDF\nis not among the organizations listed in 31 U.S.C. \xc2\xa79101.\nWhile undertaken for different purposes and in a different context, the analysis\nof the GAO in its most recent report on government corporations is instructive.\nSee GAO Report. In that report, the GAO developed a taxonomy which first\ndivided the universe into two categories: public and private. Public entities, owned\nand controlled by the public sector, were further divided between \xe2\x80\x9c government\nagencies\xe2\x80\x9d and \xe2\x80\x9c government corporations.\xe2\x80\x9d Private entities, in turn, were sub\xc2\xad\ndivided into \xe2\x80\x9c government sponsored enterprises\xe2\x80\x9d and \xe2\x80\x9c private corporations.\xe2\x80\x9d\nGAO Report at 4-5. The TDF had not been established at the time of the GAO\xe2\x80\x99s\nreport. The GAO surveyed fifty-eight entities and included data on the twentytwo entities that reported themselves to be government corporations. The GAO\nalso included data on five entities that did not consider themselves government\ncorporations, but that the GAO and others frequently consider to be some type\n5 Accord Roswell B. Perkins, The New Federal Conflict-of-interest Law , 76 Harv. L. Rev 1113, 1129-36 (1963)\n(consistently characterizing aim of \xc2\xa7 208 as preventing conflicts with \xe2\x80\x9c private economic interests,\xe2\x80\x9d \xe2\x80\x9c private parties,\xe2\x80\x9d\nand \xe2\x80\x9c outside entities\xe2\x80\x9d ), Bayless Manning, Federal Conflict o f Interest Law \xc2\xa72-4.2a (1964) (discussing two instances\nin which the former \xc2\xa7434 dtd not apply to a federal employee\xe2\x80\x99s service with organizations established and controlled\nby the federal government, in part because such organizations were \xe2\x80\x9c established by the government itself to carry\nout governmental policies considered to be in the public interest\xe2\x80\x9d ).\n\n99\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 21\n\nof government corporation, and that receive operating funds from yearly federal\nappropriations.6\nFor the purposes of our inquiry, the distinctions between public \xe2\x80\x9c government\ncorporations\xe2\x80\x9d and private \xe2\x80\x9c government sponsored enterprises\xe2\x80\x9d are most relevant.\nThe G A O \xe2\x80\x99s classification scheme focused on the following factors: funding\nsources, particularly receipt of government appropriations; ownership; control;\nnon-profit or for-profit status; and the application of fifteen federal laws that gen\xc2\xad\nerally govern the operation of federal agencies.7 Government corporations typi\xc2\xad\ncally receive full or partial funding from the U.S. government. While some are\npart of a government agency, government corporations are granted some flexibility\nin adhering to federal statutes and regulations. Government-sponsored enterprises,\nin contrast, were described as \xe2\x80\x9c federally established, privately owned corporations\ndesigned to increase the flow of credit to specific economic sectors.\xe2\x80\x9d Id. at 4\nn.9. These enterprises are typically financed by private investors, privately owned\nand controlled, and profit-seeking. They generally do not receive government\nappropriations. While regulated by the federal government to protect the govern\xc2\xad\nment\xe2\x80\x99s interest, government enterprises are less likely to be subject to the range\nof statutes governing federal agency operations. Id. at 4-5.\nWith these factors in mind, we revisit the structure and operations of the TDF.\nOn four o f the five measures identified by the GAO \xe2\x80\x94 funding, ownership, con\xc2\xad\ntrol, and non-profit status \xe2\x80\x94 the TDF matches the paradigm of a government cor\xc2\xad\nporation. It is a non-profit entity primarily funded by interest on deposits with\nthe FCC for bandwidth auctions. It is also authorized to receive appropriations\nand donations. The TDF is not a stock corporation, and presumably, its assets\nbelong entirely to the United States. While the FCC Chairman does not direct\nthe day-to-day operations o f the TDF, his authority to appoint the entire Board\ngives him a significant degree of control over its policies and performance. Unlike\nthe majority of the government corporations in the GAO study, however, the TDF\nis not expressly subject to the requirements of any of the federal statutes selected\n6 The twenty-two entities that reported themselves as government corporations in 1995 were the African Develop\xc2\xad\nment Foundation, the Commodity Credit Corporation, the Community Development Financial Institutions Fund, the\nCorporation for National and Community Service, the Export-lmport Bank, the Federal Crop Insurance Corporation,\nthe FDIC, the Federal Housing Administration, the Federal Pnson Industries, the Government National Mortgage\nAssociation, the National Credit Union Administration, Amtrak, the Overseas Private Investment Corporation, the\nPennsylvania Avenue Development Corporation, the Pension Benefit Guaranty Corporation, the Resolution Funding\nCorporation, the Resolution Trust Corporation, the Rural Telephone Bank, the St Lawrence Seaway Development\nCorporation, the Tennessee Valley Authority, the Financing Corporation, and the United States Enrichment Corpora\xc2\xad\ntion GAO Report at 7-8. The five other federally funded entities included in the GAO report were the Corporation\nfor Public Broadcasting (which reported itself to be a private, non-profit corporation), the Inter-American Foundation\n(reported as a federal agency), the Legal Services Corporation (a private, non-profit corporation), the Neighborhood\nReinvestment Corporation (a public, non-profit corporation), and the U.S. Postal Service (an independent establish\xc2\xad\nment of the executive branch). Id. at 2 n 4.\n7 Most of the twenty-two government corporations in the GAO study were exempt from the pay and classification\nrequirements of title 5; the requirements of competitive contracting; the Federal Manager\xe2\x80\x99s Integrity Act, and the\nFederal Credit Reform Act More than two-thirds, however, were subject to the Ethics in Government Act, the\nGovernment Corporation Control Act; the Privacy Act; the Freedom of Information Act, and the Inspector General\nAct. GAO Report at 9-10\n\n100\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7208 to the Federal Communications Commission's Representative on the\nBoard o f Directors o f the Telecommunications Development Fund\n\nfor the study. You have indicated that the TDF is presently considering to what\nextent it will adopt policies and bylaws consistent with the requirements of some\nof these statutes.\nIn summary, the TDF is a non-profit entity wholly owned by the federal govern\xc2\xad\nment. It also receives the vast majority of its funds from the federal government,\nalthough not from yearly appropriations. Its policy and operations will be governed\nby directors appointed by the FCC Chairman. Congress did not subject the TDF\nto the five statutes most often applicable to government corporations. Given the\nFCC Chairman\xe2\x80\x99s authority over the selection of the TDF\xe2\x80\x99s board, and the absence\nof any private ownership or interest, however, the failure to apply those statutes,\nwhich need not be applied to government corporations, does not counsel deeming\nthe TDF an outside organization. It is thus appropriate to characterize the TDF\nas a federal government entity for purposes of \xc2\xa7 208.8\nIII. Conclusion\nBecause the TDF is a non-profit entity that is entirely owned, funded, and con\xc2\xad\ntrolled by the federal government, \xc2\xa7 208\xe2\x80\x99s restrictions do not apply to the service\nof the FCC General Counsel on the TDF\xe2\x80\x99s board of directors.\nRICHARD L. SHIFFRIN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n8 In 1994, we examined a question similar to the issue you have presented and concluded that \xc2\xa7208 would apply\nto a Deputy Assistant Secretary of the Department of the Treasury appointed to the Board of Directors of the College\nConstruction Loan Insurance Association (\xe2\x80\x9c Connie Lee\xe2\x80\x9d ). See Applicability o f 18 U S .C \xc2\xa7208 to the Proposed\nAppointment o f the Deputy Assistant Secretary to the Board o f the College Construction Loan Insurance Association,\n\n18 Op. OL C. 136 (1994). While that opinion did not consider whether Connie Lee could be deemed a part of\nthe federal government for purposes of \xc2\xa7208, we note that Connie Lee was established as a private, for-profit stock\ncorporation It began operating as a joint venture between the Secretary of Education and the Student Loan Marketing\nAssociation (\xe2\x80\x9c Sallie Mae\xe2\x80\x9d ), but Congress directed that it ultimately become a private corporation Three members\nof its eleven member board were appointed by the private Sallie Mae corporation, two by the Secretary of Education,\nand two by the Secretary of the Treasury. The four remaining directors were selected by the common stockholders,\nwho at that time were the Secretary of Education and Sallie Mae Upon the sale of the Secretary of Education\xe2\x80\x99s\nstock and privatization, the entire board will be elected by the stockholders\n\n101\n\n\x0c"


b"Qualification Requirement for Aliens Under the Personal\nResponsibility and Work Opportunity Reconciliation Act of\n1996\nT he phrase \xe2\x80\x9c 4 0 qualify ing quarters of cov erag e\xe2\x80\x9d in title IV o f the P ersonal R esponsibility and W ork\nO ppo rtu n ity R econciliation A ct of 1996 can fairly be interpreted as incorporating the m ethodology\nunder section 213 o f the Social Security A ct for calculating quarters o f coverage, but not also\nthe strict defin itio n s o f w ages, em ploym ent, and self-em ploym ent incom e under other sections o f\nthe S ocial Security Act.\n\nMarch 27, 1997\nM e m o r a n d u m O p in io n\n\nfo r t h e\n\nG\n\neneral\n\nC o u n sel\n\nS o c ia l S e c u r i t y A d m i n i s t r a t i o n\n\nYou have asked for the views o f the Office of Legal Counsel on the meaning\nof the phrase \xe2\x80\x9c 40 qualifying quarters of coverage\xe2\x80\x9d in title IV of the Personal\nResponsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No.\n104\xe2\x80\x94193, 110 Stat. 2105, 2260 ( \xe2\x80\x9c PRA\xe2\x80\x9d or \xe2\x80\x9c Act\xe2\x80\x9d ).1 We understand that you\nhave considered the issue and have concluded that the phrase \xe2\x80\x98\xe2\x80\x98can fairly be inter\xc2\xad\npreted as incorporating the methodology under section 213 of the Social Security\nAct for calculating quarters of coverage, but not also the strict definitions of\nwages, employment and self-employment income under other sections of the\nSocial Security Act.\xe2\x80\x9d 2 You have further indicated that the Department of Health\nand Human Services and the Department of Agriculture concur in your construc\xc2\xad\ntion of the provision.3 For the reasons set forth below, we also concur in your\ninterpretation.\n\nBACKGROUND\nI. Personal Responsibility and Work Opportunity Reconciliation Act\nTitle IV o f the PRA imposes a broad set of limitations on the availability of\nfederal and state public benefits to aliens. Although the most categorical limita\xc2\xad\ntions apply to aliens who are not classified as \xe2\x80\x9c qualified alien[s]\xe2\x80\x9d for purposes\n\n1See Letter for Randolph D. Moss, Deputy Assistant Attorney General, Office of Legal Counsel, from Arthur\nJ. Fried, General Counsel, Social Security Administration (Nov 15, 1996)\n2 Id. at 1-2.\n3 When determining whether an agency\xe2\x80\x99s interpretation is entitled to judicial deference, the concurrence of other\nagencies may be relevant. See Nashville Gas Co. v Satty, 434 U S 136, 142 n.4 (1977) (agency interpretation\nmay be entitled to more weight when consistent with interpretations of other agencies). In addition to the other\nagencies. Representative Bill Archer, Chairman, House Committee on Ways and Means, and Representative Clay\nShaw, Chairman of the Ways and Means Subcommittee on Human Resources, have indicated that they also concur\nin your interpretation. We note, however, that the post-enactment views of members of Congress generally provide\nlittle guidance in statutory interpretation. See Weinberger v Rossi, 456 U S 25, 35 (1982), Consumer Prod. Safety\nCom m'n v. GTE Sylvama, Inc , 447 U.S 102, 118 (1980)\n60\n\n\x0cQualification Requirement fo r Aliens Under the Personal Responsibility and Work Opportunity\nReconciliation Act o f 1996\n\nof the Act, see, e.g., PRA \xc2\xa7401, 110 Stat. at 2261, significant limitations apply\neven to those aliens generally deemed \xe2\x80\x9c qualified.\xe2\x80\x9d 4 For purposes of this memo\xc2\xad\nrandum, three such limitations are significant. First, under section 402 of the Act,\nwith certain exceptions, \xe2\x80\x9c qualified aliens\xe2\x80\x9d are precluded from receiving Food\nStamps and Supplemental Security Income benefits, and, at the option of the state\nin which the alien resides, might also be denied Temporary Assistance for Needy\nFamilies, Social Security Block Grants, and Medicaid benefits. Second, under sec\xc2\xad\ntion 412 of the Act, again subject to defined exceptions, states are authorized\nto deny \xe2\x80\x9c any State public benefits\xe2\x80\x9d to \xe2\x80\x9c qualified aliens.\xe2\x80\x9d Finally, under section\n421 of the Act, in determining the eligibility for \xe2\x80\x9c any Federal means-tested public\nbenefits program,\xe2\x80\x9d an alien\xe2\x80\x99s income and resources are deemed to include the\nincome and resources of his or her sponsor (and the sponsor\xe2\x80\x99s spouse).\nEach of these three limitations on the availability of benefits, however, comes\nto an end once the \xe2\x80\x9c qualified alien:\xe2\x80\x9d\nhas worked 40 qualifying quarters o f coverage as defined under\ntitle II o f the Social Security Act or can be credited with such quali\xc2\xad\n\nfying quarters as provided under section 435, and . . . in the case\nof any such qualifying quarter creditable for any period beginning\nafter December 31, 1996, did not receive any Federal means-tested\npublic benefit. . . during any such period.\nPRA \xc2\xa7 402(a)(2)(B)(ii), 110 Stat. at 2262-63 (emphasis added); PRA\n\xc2\xa7412(b)(2)(B)(i), 110 Stat. at 2269; PRA \xc2\xa7 421(b)(2)(A), 110 Stat. at 2270.5 Under\nsection 435 of the Act, an alien is entitled to be credited with \xe2\x80\x98\xe2\x80\x98qualifying quarters\nof coverage . . . worked by a parent . . . while the alien was under age 18\xe2\x80\x9d\nor by a spouse \xe2\x80\x9c during their marriage.\xe2\x80\x9d PRA \xc2\xa7435(1) & (2), 110 Stat. at 2275.\n4 A \xe2\x80\x9c qualified alien\xe2\x80\x9d is \xe2\x80\x9c an alien who, at the time the alien applies for, receives, or attempts to receive a Federal\npublic benefit is \xe2\x80\x94\n(1) an alien who is lawfully admitted for permanent residence under the Immigration and Nationality\nAct,\n(2) an alien who is granted asylum under section 208 of such Act,\n(3) a refugee who is admitted to the United States under section 207 of such Act,\n(4) an alien who is paroled into the United States under section 212(d)(5) of such Act for a penod\nof at least 1 year,\n(5) an alien whose deportation is being withheld under section 243(h) of such Act, or\n(6) an alien who is granted conditional entry pursuant to section 203(a)(7) of such Act as m effect\nprior to April 1, 1980 \xe2\x80\x9d\nPRA \xc2\xa7431(b), 110 Stat at 2274. In addition, certain categories of aliens who (or whose children) have been subjected\nto battery or extreme cruelty in the United States by a family member with whom they reside are also \xe2\x80\x9c qualified\naliens\xe2\x80\x9d for purposes of the PRA See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub\nL No 104-208, \xc2\xa7501, 110 Stat 3009-546, 3009-670.\n3 In addition, under sections 402 and 412, the \xe2\x80\x9c qualified alien\xe2\x80\x9d must be \xe2\x80\x9c lawfully admitted . . for permanent\nresidence under the Immigration and Nationality Act.\xe2\x80\x9d PRA \xc2\xa7 402(a)(2)(B)(i), 110 Stat. at 2262, PRA \xc2\xa7 4 12(b)(2)(A),\n110 Stat. at 2269. No similar condition exists under section 421\n\n61\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 21\n\nII. Social Security Act\nTitle II of the Social Security Act ( \xe2\x80\x9c SSA\xe2\x80\x9d ), 42 U.S.C. \xc2\xa7\xc2\xa7401^133 (1994),\ndefines the phrase \xe2\x80\x9c quarter of coverage\xe2\x80\x9d in section 213. For calendar years before\n1978, with certain exceptions, the phrase means a period of three calendar months\nin which an individual has been paid $50 or more in \xe2\x80\x9c wages\xe2\x80\x9d or for which he\nor she has been credited with $100 or more in \xe2\x80\x9c self-employment income.\xe2\x80\x9d 42\nU.S.C. \xc2\xa7 413(a). For the calendar year 1978, the amount of wages and self-employ\xc2\xad\nment income required for a quarter of coverage is $250. Id. \xc2\xa7 413(d). Thereafter,\nthe requisite amount is indexed to national average wages and published in the\nFederal Register on or before November 1 of each year. Id.\nA separate section of title II defines the term \xe2\x80\x9c wages.\xe2\x80\x9d In particular, section\n209 defines \xe2\x80\x9c wages\xe2\x80\x9d to mean, in relevant part, \xe2\x80\x9c remuneration paid . . . for\nemployment.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 409(a). Section 409 provides numerous exemptions\nfrom the term \xe2\x80\x9c wages,\xe2\x80\x9d including remuneration above certain dollar thresholds\nin specified calendar years, id. \xc2\xa7 409(a)(1), and below certain dollars thresholds\nfor specified employment, such as domestic service, id. \xc2\xa7 409(a)(6)(B), agricultural\nlabor, id. \xc2\xa7 409(a)(7)(B), home worker service, id. \xc2\xa7 409(a)(8), and service for a\ntax-exempt organization, id. \xc2\xa7409(a)(14)(A).\nStill another section of title II defines the term \xe2\x80\x9c employment\xe2\x80\x9d to mean, in\npertinent part, \xe2\x80\x9c any service of whatever nature, performed . . . by an employee\nfor the person employing him.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 410(a). Section 210 contains various\nexemptions from the term \xe2\x80\x9c employment,\xe2\x80\x9d including service performed by certain\nfederal government employees, id. \xc2\xa7 410(a)(5) & (6), service performed by certain\nstate and local governments employees, id. \xc2\xa7 410(a)(7), and service performed by\ncertain church ministers and other employees, id. \xc2\xa7410(8)(A) & (B).\nDISCUSSION\nWith this background in mind, we analyze the meaning of the phrase \xe2\x80\x9c has\nworked 40 qualifying quarters of coverage.\xe2\x80\x9d Congress clearly provided that the\nphrase should be defined as \xe2\x80\x9c in title II of the Social Security Act.\xe2\x80\x9d As described\nabove, in defining the phrase \xe2\x80\x9c quarters of coverage,\xe2\x80\x9d section 213 of the SSA\ndescribes the methodology for computing the amount of earnings that constitutes\na quarter of coverage. In doing so, however, that provision uses the term\n\xe2\x80\x9c wages,\xe2\x80\x9d which itself is defined elsewhere in title II of the SSA. The definition\nof the term \xe2\x80\x9c wages,\xe2\x80\x9d in turn, uses the word \xe2\x80\x9c employment,\xe2\x80\x9d which, similarly,\nis defined elsewhere in title II of the SSA. The definitions of both \xe2\x80\x9c wages\xe2\x80\x9d and\n\xe2\x80\x9c employment,\xe2\x80\x9d moreover, contain limitations on the types of employment cov\xc2\xad\nered by the SSA (herein referred to as \xe2\x80\x9c covered employment limitations\xe2\x80\x9d ). The\nquestion presented here is whether Congress intended to include these covered\nemployment limitations in the PRA. Although a close question, we believe that\n62\n\n\x0cQualification Requirement fo r Aliens Under the Personal Responsibility and Work Opportunity\nReconciliation Act o f 1996\n\nCongress did not and that the phrase \xe2\x80\x9c has worked 40 quarters of coverage as\ndefined in title II of the Social Security Act\xe2\x80\x9d is best interpreted to adopt the\nSSA\xe2\x80\x99s mechanism for calculating the amount of wages necessary to obtain a\nquarter of coverage, but not the limitations on the types of employment in which\nthe wages may be earned.\nAlthough the most formalistic reading of the reference to title II of the SSA\nwould incorporate all of its substantive provisions, including the cross-referenced\ncovered employment limitations, it is not at all clear that this was what Congress\nintended. When confronting similarly complex statutory regimes that make use\nof cross-referenced definitional or comparable provisions, the courts of appeals\nhave not mechanically incorporated the cross-referenced provisions on a wholesale\nbasis. They instead have carefully considered the distinct statutory purposes and\nstructures of the provisions at issue. For example, in Skidgel v. Maine Dept, of\nHuman Servs., 994 F.2d 930 (1st Cir. 1993), the Court of Appeals for the First\nCircuit refused to interpret a section of the SSA to include all the requirements\nof a cross-referenced provision of that statute. Section 602(a)(38) of the SSA gov\xc2\xad\nerned the composition of a filing unit for purposes of receiving Aid to Families\nwith Dependent Children. It provided that, in making the determinations of need\nwith respect to a dependent child, states must include any parent of a dependent\nchild and any sibling if such sibling \xe2\x80\x9c meets the conditions described in clauses\n(1) and (2) of section 606(a) . . . or in section 607(a).\xe2\x80\x9d 42 U.S.C. \xc2\xa7 602(a)(38)(B)\n(1994). At issue was whether Congress intended to incorporate all of the descrip\xc2\xad\ntive terms in \xc2\xa7 607(a), including a restrictive condition requiring a showing of\nneed before the sibling may be included in the filing unit. The court rejected\na rigid reading of the statutory language, observing that \xe2\x80\x9c [a] thorough analysis\nis especially warranted where, as here, we are charged with interpreting a complex\nand technical statute which has been amended over time and which contains elabo\xc2\xad\nrate, internal cross-references.\xe2\x80\x9d Skidgel, 994 F.2d at 937. After carefully exam\xc2\xad\nining the family filing rule \xe2\x80\x9c in the context of its place in the statutory scheme\nand in light of its statutory purpose,\xe2\x80\x9d id., the court concluded that Congress did\nnot intend the need requirement to apply. Id. at 938-39.\nSimilarly, in Weingarden v. Commissioner, 825 F.2d 1027 (6th Cir. 1987), the\nCourt of Appeals for the Sixth Circuit declined to read a tax provision to include\nall the limitations of a cross-referenced section. Section 170(b)(1)(A) of the\nInternal Revenue Code permitted more generous charitable deductions for certain\nspecified charitable organizations (such as churches, schools, and hospitals) and\n\xe2\x80\x9c an organization described in section 509(a)(2) or (3).\xe2\x80\x9d 26 U.S.C.\n\xc2\xa7 170(b)(l)(A)(viii) (1994). The prefatory language contained in \xc2\xa7 509(a) crossreferenced another tax provision, \xc2\xa7 501(c)(3), that effectively would have limited\nthe type of organizations that could qualify for more favorable tax treatment under\n\xc2\xa7 170(b)(1)(A). 26 U.S.C. \xc2\xa7\xc2\xa7 509(a), 501(c)(3) (1994). The court refused to inter\xc2\xad\npret the ambiguous language of \xc2\xa7 170(b)(1)(A) to incorporate this indirect limita\xc2\xad\n63\n\n\x0cOpinions o f the O ffice o f Legal Counsel in Volume 21\n\ntion, and instead followed the canon of construction that charitable donations\nshould be construed liberally in favor of the taxpayer. Weingarden, 825 F.2d at\n1029-30.\nLikewise, in United States v. N ational M arine Engineers\xe2\x80\x99 Beneficial A s s \xe2\x80\x99n, 294\nF.2d 385 (2d Cir. 1961), the Court of Appeals for the Second Circuit, per Judge\nFriendly, refused to interpret a provision of the Labor Management Relations Act\n(\xe2\x80\x9c LM RA \xe2\x80\x9d ) to incorporate an exclusion in a cross-referenced statute. The LMRA\ndefined the term \xe2\x80\x9c strike\xe2\x80\x9d to include \xe2\x80\x9c any concerted slowdown or other concerted\ninterruption of operations by employees,\xe2\x80\x9d 29 U.S.C. \xc2\xa7 142(2) (1994), and defined\n\xe2\x80\x9c employee\xe2\x80\x9d to have \xe2\x80\x9c the same meaning as when used in [the National Labor\nRelations Act (\xe2\x80\x9d NLRA\xe2\x80\x9c )].\xe2\x80\x9d Id. \xc2\xa7 142(3). The NLRA, in turn, excluded super\xc2\xad\nvisors from the definition of \xe2\x80\x9c employee.\xe2\x80\x9d Thus, the question arose whether Con\xc2\xad\ngress intended to exclude supervisors from the definition of \xe2\x80\x9c strike\xe2\x80\x9d in the\nLMRA. Rejecting the claim that the court was required to read the statute to\nincorporate the cross-referenced limitation, Judge Friendly stated that \xe2\x80\x9c not only\nare we not required, we are not permitted to interpret statutes in the mechanical\nfashion for which appellants contend.\xe2\x80\x9d N ational Marine Engineers\xe2\x80\x99 Beneficial\nA ss\xe2\x80\x99n, 294 F.2d at 390-91. Rather, he stated, the court must look \xe2\x80\x9c to the reason\nof the enactment and inquire into its antecedent history and give it effect in\naccordance with its design and purpose, sacrificing, if necessary, the literal\nmeaning.\xe2\x80\x9d Id. at 391. After comparing the history and purpose of the two labor\nstatutes and their relationship to the supervisor exclusion, Judge Friendly con\xc2\xad\ncluded that Congress did not intend to exclude supervisors from the definition\nof \xe2\x80\x9c strike\xe2\x80\x9d in the LMRA.6\nAs in these cases, the path from the PRA to the covered employment limitations\nin the SSA is a circuitous one. The PRA makes no mention of any limitations\non the types of employment covered by the exception, but refers only to the defini\xc2\xad\ntion of \xe2\x80\x9c quarters of coverage\xe2\x80\x9d contained in the SSA. The SSA definition of\n\xe2\x80\x9c quarter o f coverage,\xe2\x80\x9d moreover, also makes no mention of the covered employ\xc2\xad\nment limitations, but simply uses the word \xe2\x80\x9c wages.\xe2\x80\x9d It is not until we reach\nthe definition of \xe2\x80\x9c wages\xe2\x80\x9d and the term \xe2\x80\x9c employment,\xe2\x80\x9d which is used in defining\n\xe2\x80\x9c wages,\xe2\x80\x9d that the covered employment limitations are introduced. In light of this\ncircuitous path, it cannot be said that the PRA, on its face, plainly and unambig\xc2\xad\nuously incorporates not only the mechanism for calculating \xe2\x80\x9c quarters o f cov\xc2\xad\n6In Crilly v Southeastern Pa. Transp. Auth., 529 F2d 1355 (3d Cir. 1976), the Court of Appeals for the Third\nCircuit adopted a similar approach, although it ultimately arrived at the same conclusion produced by a more for\xc2\xad\nmalistic reading of the provision in question There, the court construed the meaning of the term \xe2\x80\x9c employer\xe2\x80\x9d in\nthe LMRA, which also was defined \xe2\x80\x9c as when used in [the NLRA] \xe2\x80\x9d 29 U S C. \xc2\xa7 142(3) (1994). The cross-reference,\nthe Court observed, \xe2\x80\x9c applied literally, suggests that political subdivisions of states are excluded from coverage under\neither act.\xe2\x80\x9d Crilly, 529 F.2d at 1359. The court noted, however, that \xe2\x80\x9c several significant decisions have cautioned\nthat literalism may not be lan] appropriate canon o f\n. construction\xe2\x80\x9d in the labor relations context Id Thus,\nit began the process of discerning congressional intent Finding no dispositive legislauve history, the court \xe2\x80\x9c assessed]\nthe precedential consequences of attributing to Congress one or the other intention.\xe2\x80\x9d Id at 1361 Only after con\xc2\xad\nducting this extensive analysis did the court conclude that Congress intended to exclude state and local government\nemployees from the coverage of the LMRA Id at 1362-63.\n\n64\n\n\x0cQualification Requirement fo r Aliens Under the Personal Responsibility and Work Opportunity\nReconciliation Act o f 1996\n\nerage,\xe2\x80\x9d but also the covered employment limitations. Accordingly, we beUeve\nit is necessary to examine the \xe2\x80\x9c design and purpose\xe2\x80\x9d of the PRA to determine\nwhether Congress intended to incorporate the covered employment limitations of\nthe SSA. In our view, such an analysis demonstrates that Congress did not.\nLooking first to the language of the PRA, we note a specific emphasis on\n\xe2\x80\x9c work,\xe2\x80\x9d but not on a particular type of work. While the SSA focuses on whether\nthe applicant has acquired \xe2\x80\x9c not less than\xe2\x80\x9d the requisite number of quarters of\ncoverage, the PRA focuses on whether the applicant \xe2\x80\x9c has worked\xe2\x80\x9d for at least\nten years. The choice of this particular language suggests, on the face of the\nstatute, an emphasis on work, without restriction.\nThe legislative history of the PRA confirms this emphasis. It contains numerous\nreferences to the length of work required to qualify under the exception to the\nbar on public benefits in the PRA, but no reference to the type of work. With\nrespect to the public benefits restriction in section 402, the Conference Report\nstates that \xe2\x80\x98 \xe2\x80\x98excepted are legal permanent residents who have worked (in combina\xc2\xad\ntion with their spouse and parents) fo r at least 10 years.\xe2\x80\x9d H.R. Conf. Rep. No.\n104-725, at 380 (1996) (emphasis added). Similarly, with regard to section 412,\nthe Conference Report simply provides that \xe2\x80\x9c [e]xceptions to State authority to\ndeny benefits are made for . . . permanent resident aliens who have worked in\nthe United States (in combination with their spouse or parents) fo r at least JO\nyears.\xe2\x80\x9d Id. at 384 (emphasis added). In connection with section 421, the Con\xc2\xad\nference Report states that \xe2\x80\x9c [d]eeming extends until citizenship, unless the noncit\xc2\xad\nizen has worked f o r a t least 10 years in the United States (either individually\nor in combination with the noncitizen\xe2\x80\x99s spouse and parents).\xe2\x80\x9d Id. at 385 (emphasis\nadded). Finally, the Conference Report describes the qualifying quarters provision\nin section 435 as follows:\nIn determining whether an alien may qualify for benefits under the\nexception for individuals who have worked at least 40 quarters\nwhile in the United States . . . work performed by parents and\nspouses may be credited to aliens under certain circumstances. Each\nquarter o f work perform ed by the parent while an alien was under\nthe age o f 18 is credited to the alien, provided the parent did not\n\nreceive any Federal public benefits during the quarter. Similarly,\neach quarter o f work perform ed by a spouse o f an alien during\ntheir marriage is credited to the alien, if the spouse did not receive\n\nany Federal public benefits during the quarter.\nId. at 391-92 (emphasis added).\n\nThe focus in the PRA and its legislative history on whether the applicant has\nworked the requisite number of quarters \xe2\x80\x94 without regard to the type of work\nperformed \xe2\x80\x94 is consistent with the PRA\xe2\x80\x99s express purpose, among other things,\n65\n\n\x0cOpinions o f the O ffice o f Legal Counsel in Volume 21\n\nto promote self-sufficiency among immigrants. In the PRA, Congress observed\nthat \xe2\x80\x9c [s]elf-sufficiency has been a basic principle of United States immigration\nlaw since this country\xe2\x80\x99s earliest immigration statutes. . . . It is a compelling\ngovernment interest to enact new rules . . . in order to assure that aliens be selfreliant.\xe2\x80\x9d PRA \xc2\xa7400, 110 Stat. at 2260.\nTitle IV rewards self-sufficiency by denying certain public benefits to aliens\nunless they \xe2\x80\x9c ha[ve] worked\xe2\x80\x9d for ten years. The covered employment limitations\nin the SSA, by contrast, serve a very different purpose that is unrelated to the\nprinciple of self-sufficiency. They were designed for a purpose unique to the insur\xc2\xad\nance scheme established by the SSA \xe2\x80\x94 namely, to prevent the payment of social\nsecurity benefits to those who, for a variety of reasons, have not paid into that\nsystem. Incorporating the covered employment limitations into the PRA would\nfail to reward long-standing work in an equitable fashion and thus would be incon\xc2\xad\nsistent with the Act\xe2\x80\x99s purpose of promoting self-sufficiency among immigrants.\nWe can conceive of no reason to reward most aliens who have worked for ten\nyears, but not those who have worked for that period in certain government jobs\nor for churches, for example.7 We do not believe Congress intended such a strange\nresult.8\nFinally, interpreting the PRA to include the covered employment limitations\nof the SSA would run counter to the canon of construction that remedial provi\xc2\xad\nsions should be construed liberally. See Peyton v. Rowe, 391 U.S. 54, 65 (1968);\nsee also C onsolidated Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994); Jefferson\nCounty Pharm. A s s \xe2\x80\x99n v. Abbott Lab., 460 U.S. 150, 159 (1983). Application of\nthis canon of construction further supports our conclusion that Congress did not\nintend to restrict benefits only to those employees who could demonstrate 40 quar\xc2\xad\n7 In enacting title IV of the PRA, Congress also expressly intended that \xe2\x80\x9c the availability of public benefits not\nconstitute an incentive for immigration to the United States\xe2\x80\x9d and found that \xe2\x80\x9c [i]t is a compelling government interest\nto remove the incentive for illegal immigration provided by the availability of public benefits.\xe2\x80\x9d PRA \xc2\xa7400, 110\nStat. at 2260 Construing the PRA to incorporate the covered employment limitations would not further this purpose\nThe need to demonstrate ten years of work might well provide a disincentive to immigration for the purpose of\nreceiving benefits. There is no reason to believe, however, that Congress concluded that a different (and more severe)\nlimitation need apply to qualified aliens, who have spent all or a portion of their careers working in non-covered\nemployment, in order to achieve the statutory purpose of removing a possible incentive to immigration\n8 It might be argued that Congress intended to include the covered employment limitations of the SSA to reduce\nthe administrative burden of verifying quarters of coverage for PRA purposes. While administrators of PRA benefits\nmay rely on the social security database in determining whether a \xe2\x80\x9c covered\xe2\x80\x9d alien had worked 40 qualifying quarters\nof coverage, they arguably have no such resource of \xe2\x80\x9c noncovered\xe2\x80\x9d aliens Although this may be true in some\ncases, it does not apply categorically Specifically, we understand that many covered employees have incomplete\nsocial security records, while many noncovered employees have complete records Incomplete (or no) documentation\nexists for covered employees whose employers have failed properly to report their income to the Social Security\nAdministration. In addition, no computer data generally exist for any quarters of covered employment worked in\nthe current year (so-called \xe2\x80\x9c lag earnings\xe2\x80\x9d ) Computer documentation does exist, however, for many noncovered\nemployees dating as far back as 1978 In that year, due to a change in the law, many employers began reporting\nthe annual earnings of all their employees, including noncovered employees The Social Security Administration\nhas retained the raw data for these noncovered employees in its database. In any event, there is no evidence whatso\xc2\xad\never that Congress intended to exclude classes of potential welfare recipients \xe2\x80\x94 such as those who had once worked\nfor state government \xe2\x80\x94 to reduce the burden of verification To the contrary, \xc2\xa7432 recognizes the need to develop\ncomplicated verification procedures for the host of new criteria imposed by the Act, PRA \xc2\xa7 432(a) & (b), 110 Stat.\nat 2274-75 (giving the Attorney General 18 months and states 24 months to comply)\n\n66\n\n\x0cQualification Requirement fo r Aliens Under the Personal Responsibility and Work Opportunity\nReconciliation Act o f 7996\n\nters of work in a particular type of employment.9 Rather, to effectuate the remedial\npurpose of the 40 quarters exception, the Act extends benefits to all employees\nwho have worked for at least ten years.\nDAWN E. JOHNSEN\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n9 We note that the Court of Appeals for the Sixth Circuit applied a similar analysis in determining whether Congress\nintended a provision of the tax code to incorporate all the limitations of a cross-referenced section. See Weingarden,\n\n\x0c"


b'Scope of Congressional Oversight and Investigative Power\nWith Respect to the Executive Branch\nCongressional pow er to conduct inquiries and to exercise oversight respecting the Executive\nBranch is broad and well-established. This power is not unlimited, however. Its use must be\nconfined to inquiries concerning the administration o f existing laws or the determination o f\nw hether new or additional laws are needed.\nCongress may not conduct investigative or oversight inquiries for the purpose o f managing\nExecutive Branch agencies or for directing the manner in which the Executive Branch\ninterprets and executes the laws.\nThe Suprem e C ourt\xe2\x80\x99s decisions in B uckley v. Valeo, 424 U.S. 1 (1976) (per curiam), and INS v.\nChadha, 462 U.S. 919 (1983), establish an area o f executive authority in the interpretation\nand im plem entation o f statutes. C ongress may not take action, including action in furtherance\no f its inquiry and oversight pow ers, that interferes with that executive authority, except\nthrough the enactm ent o f legislation in full com pliance with constitutional requirements.\n\nMarch 22, 1985\nM\n\nem orandum\n\nO p in io n\n\nfor th e\n\nA ttorney G eneral\n\nThis responds to your request for a brief discussion of the proper scope of\nC ongress\xe2\x80\x99 power o f inquiry and oversight with respect to the Executive Branch.\nIt is beyond dispute that Congress may conduct investigations in order to\nobtain facts pertinent to possible legislation and in order to evaluate the\neffectiveness o f current laws.1 This power to obtain information has long been\nviewed as an essential attribute o f the power to legislate, and was so treated in\nthe British Parliam ent and in the colonial legislatures in this country. See\nM cG rain v. D augherty, 273 U.S. 135, 161, 174-77 (1927); see generally\nLandis, Constitutional Limitations on the Congressional Pow er o f Investiga\xc2\xad\ntion, 40 Harv. L. Rev. 153 (1926). Although the Constitution does not explic\xc2\xad\nitly grant any power o f inquiry to Congress, Congress asserted such a right\nshortly after the adoption of the Constitution. In 1792, the House of Represen] In ex ercisin g its o v ersig h t function. C ongress may also adopt by plenary legislation \xe2\x80\x9creport and wait\xe2\x80\x9d\npro v isio n s requiring the E xecutive to report to Congress in advance o f taking certain actions. See, e.g., IN S v.\nC hadha , 4 6 2 U .S. 9 1 9 ,9 3 3 n.9 (1983). C o n g ress\' pow er in this area is not unlimited. Legislation purporting\nto render inoperative the E x ecu tiv e\xe2\x80\x99s inherent constitutional pow ers, such as those related to the P resid e n ts\nrole as C om m ander-in-C hief, fo r a fixed p erio d o f tim e w ould raise issues decidedly different and more\nd ifficu lt to resolve than situ atio n s in which C ongress legislates \xe2\x80\x9cw aiting\xe2\x80\x9d periods with regard to the exercise\no f statu to ry pow er by the Executive. See g en era lly Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,\n6 3 6 -3 8 (1952) (Jackson, J. concurring).\n\n60\n\n\x0ctatives appointed a committee to investigate a military disaster and authorized\nthat committee to send for necessary witnesses and documents. 3 Annals of\nCong. 490-94 (1792). It is now settled that Congress\xe2\x80\x99 power to obtain informa\xc2\xad\ntion necessary to legislate is broad.\nThus, for example, in Watkins v. United States, 354 U.S. 178, 187 (1957),\nthe Supreme Court stated:\nWe start with several basic premises on which there is general\nagreement. The power of the Congress to conduct investigations\nis inherent in the legislative process. That power is broad. It\nencompasses inquiries concerning the administration of existing\nlaws as well as proposed or possibly needed statutes. It includes\nsurveys of defects in our social, economic or political system for\nthe purpose of enabling Congress to remedy them. It compre\xc2\xad\nhends probes into departments of the Federal Government to\nexpose corruption, inefficiency or waste.\nAs the Court\xe2\x80\x99s statement in Watkins suggests. Congress\xe2\x80\x99 power of inquiry\nregarding possible legislation extends to investigations of how well current\nlaws are being administered by the Executive Branch. In McGrain v. Daugherty,\n273 U.S. at 161, the Court affirmed the power of a Senate committee charged\nwith investigating the administration of the Department of Justice under a\nformer Attorney General to compel the appearance of a witness.2 Finding that\nthe subject matter of the investigation was sufficiently related to the legislative\nfunction of lawmaking to make the investigation proper, the Court stated:\nPlainly the subject was one on which legislation could be had\nand would be materially aided by the information which the\ninvestigation was calculated to elicit. This becomes manifest\nwhen it is reflected that the functions of the Department of\nJustice, the powers and duties of the Attorney General and the\nduties of his assistants, are all subject to regulation by congres\xc2\xad\nsional legislation and that the department is maintained and its\nactivities are carried on under such appropriations as in the\njudgment of Congress are needed from year to year.\nId. at 178.\n\nBroad as it is, however, Congress\xe2\x80\x99 power o f oversight and inquiry \xe2\x80\x9cis not\nunlimited.\xe2\x80\x9d Watkins v. United States, 354 U.S. at 187. As the quotation from\n2 This investigation w as prom pted by allegations o f m isfeasance and nonfeasance in the D epartm ent o f\nJustice under Harry M. D augherty, w ho served as A ttorney G eneral from M arch 1921 until M arch 1924. The\nSenate appointed a com m ittee o f five senators charged with investigating, inter a lia : (1) the A ttorney\nG eneral\'s alleged failure to \xe2\x80\x9cprosecute properly violators o f the Sherman A ntitrust A ct and the C layton A ct;"\n(2) the Attorney G en eral\'s alleged failure to arrest and prosecute certain named individuals \xe2\x80\x9cand their co\xc2\xad\nconspirators in defrauding the G overnm ent;\xe2\x80\x9d and (3) the activities o f the A ttorney G eneral and his assistants\n\xe2\x80\x9cwhich could in any m anner tend to im pair their efficiency or influence as representatives o f the G overnm ent\no f the U nited States.\xe2\x80\x9d 273 U .S. at 152-53. As part o f this investigation, the Com m ittee subpoenaed A ttorney\nGeneral D augherty\'s brother, who w as the president o f a certain bank.\n\n61\n\n\x0cM cG rain v. D augherty suggests, the power of inquiry must be exercised \xe2\x80\x9cin aid\n\no f the legislative function.\xe2\x80\x9d 273 U.S. at 135. In this regard, the Supreme Court\nhas explicitly recognized that congressional inquiries may not be used to\narrogate to Congress functions allocated by the Constitution to another branch\nof government.3\nIn K ilbou m v. Thompson , 103 U.S. 168 (1881), a House committee was\ninvestigating the circumstances surrounding the bankruptcy of a company in\nwhich the United States had deposited funds, focusing particular attention on a\nprivate real estate pool that was a part of the financial structure. The Supreme\nCourt found that the House had exceeded the limits of its authority in this\ninvestigation because the subject matter was in its nature clearly judicial and\ntherefore one in respect to which no valid legislation could be enacted. See also\nWatkins v. U nited States, 354 U.S. at 187. Accordingly, \xe2\x80\x9c[l]acking the judicial\npower given to the Judiciary, [Congress] cannot inquire into matters that are\nexclusively the concern of the Judiciary. Neither can it supplant the Executive\nin what exclusively belongs to the Executive.\xe2\x80\x9d Barenblatt v. United States, 360\nU.S. 109, 112 (1927).4\nIn determining what functions fall within the Executive\xe2\x80\x99s exclusive domain,\none must, o f course, be sensitive to the Supreme Court\xe2\x80\x99s admonition that the\nConstitution does not contemplate \xe2\x80\x9ca complete division of authority between\nthe three branches.\xe2\x80\x9d Nixon v. A dm inistrator o f Gen. Servs., 433 U.S. 425, 443\n(1977). Rather, the Constitution \xe2\x80\x9cenjoins upon its branches separateness but\ninterdependence, autonomy but reciprocity.\xe2\x80\x9d Youngstown Sheet & Tube Co. v.\nSaw yer, 343 U.S. 579,635 (1952) (Jackson, J., concurring). Accordingly, there\nis undoubtedly a gray area in which the President\xe2\x80\x99s responsibility for managing\nthe Executive Branch and Congress\xe2\x80\x99 power of oversight conflict, and where the\nrespective rights and obligations of the President and Congress are unclear.\nNonetheless, Congress\xe2\x80\x99 power o f inquiry must not be permitted to negate the\nPresident\xe2\x80\x99s constitutional responsibility for managing and controlling affairs\ncommitted to the Executive Branch. See M yers v. United States, 272 U.S. 52,\n135 (1926). Thus, although Congress constitutionally can investigate the man\xc2\xad\nner in which the Executive Branch has executed existing law in order to\ndeterm ine whether further legislation is necessary, it cannot conduct such\ninvestigations for the purpose o f facilitating an ability to exercise day-to-day\ncontrol over the management o f Executive Branch agencies, or otherwise to\ndirect the manner in which existing laws are interpreted and executed.\nTwo recent Supreme Court decisions establish certain clear limits on Con\xc2\xad\ngress\xe2\x80\x99 power to involve itself in the administration of the Nation\xe2\x80\x99s laws. In\nBuckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam), the Court ruled that all\n3 T he constitutionally based doctrine o f ex ecu tiv e privilege also lim its C ongress\' ability to obtain information from the Executive B ranch. See, e.g., U nited States v. N ixon, 418 U.S. 683 (1974).\n4 B a ren b la tt did not involve a dispute betw een C ongress and the Executive. The Barenblatt Court upheld,\nag ain st statutory and constitutional objections, the contem pt conviction o f a w itness w ho refused to answ er\nquestions concerning his alleged associations with the Com m unist Party posed by a subcom m ittee of the\nH ouse C o m m ittee on U n-A m erican A ctivities, which w as then investigating alleged Com m unist infiltration\ninto education.\n\n62\n\n\x0cofficials who \xe2\x80\x9cexercise significant authority pursuant to the laws o f the United\nStates\xe2\x80\x9d are \xe2\x80\x9cOfficers of the United States,\xe2\x80\x9d who must be appointed in accor\xc2\xad\ndance with the Appointments Clause, U.S. Const, art. II, \xc2\xa7 2, cl. 2. The Court\nspecifically held that the interpretation and implementation of a statute \xe2\x80\x9crepre\xc2\xad\nsents the performance of a significant governmental duty exercised pursuant to\na public law,\xe2\x80\x9d and can be performed only by an \xe2\x80\x9cofficer of the United States.\xe2\x80\x9d\nId. at 141. This principle underlies Justice W hite\xe2\x80\x99s observation:\nI know of no authority for the congressional appointment of its\nown agents to make binding rules and regulations necessary to\nor advisable for the administration and enforcement of a major\nstatute where the President has participated either in the ap\xc2\xad\npointment of each of the administrators or in the fashioning of\nthe rules and regulations which they propound.\nBuckley v. Valeo , 424 U.S. at 281 (White, J., concurring in part and dissenting\nin part). Buckley recognizes that the Constitution precludes Congress from\n\nparticipating in Executive Branch functions through appointment of the per\xc2\xad\nsons who execute the laws.\nIn INS v. Chadha, the Court held that a related principle of the separation of\npowers doctrine establishes that when Congress has authorized executive de\xc2\xad\npartments to perform certain tasks, the rights and duties created by that authori\xc2\xad\nzation or by its execution may not be altered by the actions of a congressional\ncommittee or other agent or arm of Congress. Any measure that alters those\nrights and duties must be approved by each House of Congress and presented to\nthe President. 462 U.S. at 951. Together, the principles of Buckley and Chadha\nestablish an area of executive authority interpreting and implementing duly\nenacted statutes that cannot be displaced by the actions of Congress except\nthrough the legislative process of enacting legislation subject to the President\xe2\x80\x99s\nveto.\nThus, the oversight functions of a congressional committee must be evalu\xc2\xad\nated in relation to the President\xe2\x80\x99s longstanding and pervasive responsibility\nover the management and control of affairs committed to the Executive Branch.\nSee M yers v. United States, 272 U.S. at 135. The prerogatives and responsibili\xc2\xad\nties of the President to exercise and protect his control over the Executive\nBranch are based on the fundamental principle that the President\xe2\x80\x99s perfor\xc2\xad\nmance of his constitutional duties must be free of certain types of interference\nfrom the coordinate branches of government. The \xe2\x80\x9cexecutive Power\xe2\x80\x9d is vested\nin the President, U.S. Const, art II, \xc2\xa7 1, cl. 1, and he must \xe2\x80\x9ctake Care that the\nLaws be faithfully executed,\xe2\x80\x9d id. \xc2\xa7 3. In order faithfully to fulfill these respon\xc2\xad\nsibilities, the President must be able to delegate the management and control of\nexecutive departments to subordinate officials in the knowledge that they will\nremain faithful to his commands. To the extent that a committee of Congress\nattempts to interfere with the President\xe2\x80\x99s right to make policy decisions and to\nmanage the Executive Branch pursuant to statutory authorization, the Legisla\xc2\xad\ntive Branch limits the ability of the President to perform his constitutional\n63\n\n\x0cfunction. Congress may do so, o f course, but only in the manner authorized by\nthe Constitution: plenary legislation presented to the President and subject to\nhis veto power. It may not vest in its committees or its officers the power to\nsupplant the President\xe2\x80\x99s executive functions, and may not do so under the guise\no f its investigative authority.\nRa lph W . T arr\n\nA cting A ssistant Attorney General\nOffice o f Legal Counsel\n\n64\n\n\x0c'