b'Presidential Power to Expel Diplomatic Personnel\nfrom the United States\nT h e P resid en t has in h eren t co n stitu tio n al p o w e r to d e c la re fo reig n d ip lo m atic perso n n el\npersona non grata an d to expel them fo rcib ly from th e U n ited S tates; th e ex ercise o f this\np o w e r is c o n sisten t w ith in tern atio n a l law , in clu d in g specifically th e V ien n a C o n v e n \xc2\xad\ntion o n D ip lo m atic R elations.\nIn h ere n t in th e P re sid e n t\xe2\x80\x99s p o w e r to reco g n ize foreign co u n trie s an d th eir m inisters is\nim plied p o w e r o v e r th e physical prem ises o f d ip lo m atic p ro p erties, in clu d in g p o w e r to\ntak e actio n s n ecessary to p ro te c t em bassies from d am age, an d to d e n y possession to o r\nto eje c t th o se n o t reco g n ized as d ip lo m atic p erso n n el o f th e sen d in g state.\nA fo reig n d ip lo m at w h o has b een d e c la re d persona non grata and o rd e re d to leav e the\nc o u n try d o es n o t lose his d ip lo m atic status, and th u s sh o u ld n ot be able to assert any\nlegal en titlem en t to rem ain in th e U nited S tates u n d e r th e Im m ig ratio n an d N atio n ality\nA ct; n o r sh o u ld su ch an individual be able to fru s tra te o r d elay e x e c u tio n o f an\nexpulsion o rd e r b y re n o u n c in g his d ip lo m atic status. T h e S e c re ta ry o f S ta te m ay\nrev o k e th e visas o f d ip lo m ats d e c la re d persona non grata to forestall th e ir in v o catio n o f\nth e IN A as a basis fo r ch allen g in g th e P re sid e n t\xe2\x80\x99s expulsion o rd e r.\nF ed eral law en fo rc e m e n t officials, p a rtic u la rly th e S ecret S erv ice, h a v e a u th o rity to\np ro te c t Iran ian d ip lo m atic p ro p e rty against th ird p arties, in clu d in g any p erso n s not\nc u rre n tly reco g n ized by the U n ited S tates as a c c re d ite d d ip lo m a tic p erso n n el. T h e\nP resid en t is a u th o riz e d to call on th e full ran g e o f his re so u rc e s in th e E x e c u tiv e\nB ran ch , in clu d in g th e m ilitary, an d also on th e reso u rces o f sta te o r local law e n fo rc e \xc2\xad\nm en t ag en cies, to c a rry o u t an expulsion o r d e r in this situation.\nT h e D u e P ro c ess C lau se o f th e F ifth A m e n d m e n t at m ost req u ires o n ly a d e te rm in a tio n\nth at a d ip lo m at ab o u t to be expelled from th e U n ited S tates p u rsu a n t to th e P re sid e n t\xe2\x80\x99s\no rd e r is in fact th e p erso n o rd e re d to be expelled; an expulsion o r d e r is arg u ab ly\nsu b ject to ju d icial rev iew , on a w rit o f h abeas co rp u s, but o n ly o n th e lim ited g ro u n d s\no f m istaken id entity.\n\nApril 4, 1980\nMEMORANDUM OPINION FOR TH E DEPUTY ATTORNEY\nG EN ER A L AN D T H E ASSOCIATE ATTORNEY G E N E R A L\nThis responds to your joint request for our views regarding the\nauthority of the President to expel foreign diplomatic personnel from\nthe United States, to maintain control over the premises of Iranian\ndiplomatic property in connection with that expulsion, and the legal\nconstraints placed on that authority by international and domestic law\nand by our Constitution. For the reasons stated hereafter, we believe\nthat the President has the authority to declare a nonresident alien who\nis a member of the staff of a foreign diplomatic or consular post in the\nUnited States to be persona non grata, forcibly to expel such diplomatic\n207\n\n\x0cpersonnel from the United States within a reasonable period of time (as\nset by the President) after being declared persona non grata, and to take\nall steps reasonably designed to secure all Iranian diplomatic properties\nand limit their use to diplomatic activities conducted by a third nation\nacceptable to the President. We conclude that the exercise of this\npower over diplomatic personnel is not constrained by the Immigration\nand Nationality Act of 1952, and that the Constitution requires only\nthat a procedure reasonably calculated to insure that personnel actually\nexpelled are those previously declared persona non grata be utilized.\nWe also conclude that prior to their expulsion, diplomatic personnel\nare not entitled as a\' matter of law to assert any federal statutory right\nto remain in this country as a means of avoiding their expulsion.1\nFinally, we believe that judicial review of any actions taken by the\nPresident related to expulsion would be limited to possible inquiry by\nhabeas corpus into the question whether a particular person to be\nexpelled was in fact previously declared persona non g rata.2\nI. Presidential Authority Over Diplomatic Personnel and Property\n\nThe President\xe2\x80\x99s authority over foreign diplomatic personnel derives\nfrom his power, under Article II, \xc2\xa7 3 of the Constitution, to \xe2\x80\x9creceive\nAmbassadors and other Public Ministers.\xe2\x80\x9d This provision is the basis of\nthe President\xe2\x80\x99s power to grant or withdraw recognition to foreign\ngovernments and their ministers, a power regarded as textually commit\xc2\xad\nted to the Executive alone. See Jones v. United States, 137 U.S. 202, 212\n(1890); B aker v. Carr, 369 U.S. 186, 212-13 (1962).3 The President\xe2\x80\x99s\npower to accept or reject a particular envoy has been beyond serious\nquestion since President Washington demanded the recall of Citizen\nGenet, the French Minister. In 1855, the Attorney General took the\nposition that this right of reception, and therefore rejection, extends to\n\xe2\x80\x9call possible diplomatic agents which any foreign power may accredit\n1A separate international legal question w ould be raised in the event o f a claim o f political asylum\nby one o f the individuals w hose d ep artu re is o rd ered . T h e U nited States is a party to the 1967\nProtocol R elating to the Status o f R efugees, Jan. 31, 1967, 19 U .S.T. 6223, T.I.A .S. 6577. This\nProtocol obliges us not to expel o r return a refugee to a territo ry w here his life o r freedom w ould be\nthreatened on account o f his race, religion, nationality, m em bership o f a p articular social g roup o r\npolitical opinion. T h e P ro to co l defines "refugee" as a person w ho, ow ing to w ell-founded fear o f such\npersecution, is outside the co u n try o f his nationality and is unable or, ow ing to such fear, is unw illing\nto avail him self o f the protection o f that country.\nT h e re is no exception provided in th e P ro to co l w ith respect to diplom atic and consular personnel\nand, in practice, such personnel have been acco rd ed the benefits o f the C onvention.\nIt w ould seem unlikely that any Iranian diplom atic o r consular personnel w h o rem ain officials o f\nthe present g o vernm ent o f Iran, more than one year after its establishm ent, w ould have a reasonable\nfear o f persecution by that governm ent. N evertheless, such claim s are possible, and the U nited States\nshould have a pro ced u re for assuring that expulsion will not v iolate our treaty obligations under the\nR efugee Protocol. A possible approach to this problem is described in Part III o f this m em orandum .\n2 W e note that th e analytical basis fo r th e conclusions set fo rth above and the reasoning set forth\nbelow is d raw n to a great extent from a series o f m em oranda from this O ffice to the A ttorney G eneral\ndating from N ovem ber o f 1979. W e w ould also note that w e use the term s diplom atic personnel and\ndiplom atic pro p erty herein to include b o th diplom atic and consular personnel and property; for our\npurposes, legal distinctions am ong these classes are eith er irrelevant o r specifically noted.\n3See generally 2 B. S ch w artz, T h e P ow ers o f th e President 104-09 (1963).\n\n208\n\n\x0cto the United States.\xe2\x80\x9d 7 Op. A tt\xe2\x80\x99y Gen. 186, 209 (1855); 5 Moore,\nInternational Law Digest 15\xe2\x80\x9419 (1906). It is recognized that the power\nto receive Ambassadors is a discretionary one which necessarily in\xc2\xad\ncludes the right to refuse to receive them, to require their departure,\nand to determine their eligibility under our laws. 4 Moore, International\nLaw Digest 473-548 (1906).\nThe President\xe2\x80\x99s power to receive and expel foreign diplomatic per\xc2\xad\nsonnel is a power recognized to inhere in all sovereign nations by the\n1961 Vienna Convention on Diplomatic Relations, Apr. 18, 1961,\n23 U.S.T. 3227, T.I.A.S. No. 7502. The President\xe2\x80\x99s power over diplo\xc2\xad\nmatic property is a concomitant of his power over diplomatic personnel\nto the extent that its exercise relates to his recognition power and his\npower over the conduct of our foreign relations and is likewise recog\xc2\xad\nnized by the Vienna Convention. Under Article 22 of the Vienna\nConvention, this country has a duty to take \xe2\x80\x9call appropriate steps to\nprotect the premises of the mission against any intrusion or damage and\nto prevent any disturbance of the peace of the mission.\xe2\x80\x9d Article 45 of\nthe Convention requires the receiving state to \xe2\x80\x9crespect and protect the\npremises of the mission, together with its property and archives,\xe2\x80\x9d and\nauthorizes the sending state to entrust custody of the premises to a third\nstate acceptable to the receiving state where the receiving state orders\nthe recall of diplomatic personnel.\nBecause diplomats and consuls who have been ordered to leave the\nUnited States have always complied, the President\xe2\x80\x99s authority to order\ntheir departure and to enforce such orders has never been subject to\njudicial challenge. However, individuals have from time to time\nclaimed diplomatic status and have asserted a resulting entitlement to\nimmunity from judicial process. In these cases the courts have consist\xc2\xad\nently acknowledged that determinations as to whether an individual\nwas recognized by the United States as a representative of a foreign\ngovernment were properly within the province of the Executive. A c\xc2\xad\ncordingly, the courts have held that certifications by the Department of\nState are conclusive as to the status, privileges, and immunities of\nforeign diplomatic personnel. In re Baiz, 135 U.S. 403 (1890); Carrera v.\nCarrera, 174 F.2d 496, 497 (D.C. Cir. 1949). As discussed below, we\nbelieve an executive determination that an individual previously recog\xc2\xad\nnized as a diplomatic or consular representative had been declared\npersona non grata and was required to depart from the United States\nwould be entitled to the same judicial deference under the rationale of\nthese decisions. See A dam s v. Vance, 570 F.2d 950 (D.C. Cir. 1978).\nII. Legal Constraints on the Exercise of the President\xe2\x80\x99s Authority\n\nWe have identified three types of authority which inform and poten\xc2\xad\ntially constrain the President\xe2\x80\x99s exercise of his authority to declare per\xc2\xad\nsona non grata and to expel foreign diplomatic personnel other than\n209\n\n\x0cpersonnel accredited to the United Nations and to regulate the use of\ndiplomatic property.4 The first and most directly relevant authority is\ninternational law, specifically the Vienna Convention on Diplomatic\nRelations. The second is federal statutory law, including the Immigra\xc2\xad\ntion and Nationality Act of 1952, 8 U.S.C. \xc2\xa7\xc2\xa7 1101 et seq. The third is\nthe Due Process Clause of the Fifth Amendment of the Constitution.\nWe will discuss each of these in turn.\nA. International Law\n\n1. Diplomatic personnel\nUnder international law it has long been recognized that every sover\xc2\xad\neign nation has the right to determine whether it will receive a diplo\xc2\xad\nmatic envoy from another nation and whether it will continue to\nreceive and conduct official business with an envoy who has been\naccepted.5 This right is reflected in Article 9 of the 1961 Vienna\nConvention on Diplomatic Relations, a codification in most material\nrespects of prevailing customary international law on this subject. Arti\xc2\xad\ncle 9 provides that the receiving state may, at any time and without\nhaving to explain its decision, notify the sending state that any diplo\xc2\xad\nmatic officer is persona non grata or that a nondiplomatic staff member\nis no longer \xe2\x80\x9cacceptable.\xe2\x80\x9d Following this determination, the sending\nstate must either recall the person concerned or, \xe2\x80\x9cas appropriate,\xe2\x80\x9d\nterminate that person\xe2\x80\x99s functions at the mission.6\nOnce declared persona non grata, foreign diplomatic personnel do not\nautomatically lose their diplomatic status or the diplomatic immunities\nto which they are entitled under international law. Under U2 of Article\n9 of the Convention, if the sending state \xe2\x80\x9crefuses or fails within a\nreasonable period to carry out its obligations\xe2\x80\x9d to recall or terminate the\nservices of a diplomat declared persona non grata, \xe2\x80\x9cthe receiving State\nm ay refuse to recognize the person concerned as a member of the\nmission.\xe2\x80\x9d (Emphasis added.) You have asked us whether this remedy\nspelled out in Article 9, permitting the United States to strip diplomatic\npersonnel of their diplomatic status if they have not left this country\n*A s indicated below , the P resident\xe2\x80\x99s p o w er to com pel the d eparture o f diplom ats accredited to the\nUnited N ations has been, subsequent to the ratification by the Senate o f the C onvention on the\nPrivileges and Im m unities o f the U nited N ations in 1970, essentially the same as his pow er to expel\ndiplom atic personnel accred ited to this co u n try . This O ffice cu rren tly has under consideration at the\nrequest o f the Legal A dviser o f the D epartm ent o f State the question w hether diplom ats accredited to\nthe U nited N ations enjoy the same im m unity from application o f paragraphs (27) and (29) o f 8 U.S.C.\n\xc2\xa7 1182(a) to their entering this co u n try as diplom atic personnel accredited to the U nited States possess\nby virtue o f 8 U .S .C \xc2\xa71102.\n5E. D enza, D iplom atic L aw 40 (1976) [hereafter Denza].\n*T he records o f the International L aw Com m ission reflect that the term ination o f functions option\nis intended to apply prim arily to persons w h o are nationals o f o r perm anently resident in the receiving\nstate.\n\n210\n\n\x0cafter a reasonable period of time7 subsequent to their being declared\npersona non grata is, in effect, the exclusive remedy of the President to\n\nenforce Article 9. Stated another way, the question is whether, consist\xc2\xad\nent with the Vienna Convention, the President through his agents may\nforcibly expel foreign diplomatic personnel from the United States\nsubsequent to their being declared persona non grata. We believe that,\nconsistent with the Vienna Convention, the President may do so.\nIt has long been customary for the sending states to withdraw diplo\xc2\xad\nmats voluntarily when those diplomats have been declared persona non\ngrata. Thus, as indicated above, in American practice it has apparently\nnever been necessary forcibly to expel such a diplomat. Although the\nVienna Convention is silent on the question of the right of the receiving\nstate forcibly to expel a diplomat after declaring him persona non grata,\nthere is support in both customary practice and in the negotiating\nrecord of the Convention for the taking of this action by the receiving\nstate following that determination. One authority cites the fact that the\nearly cases reflecting this practice \xe2\x80\x9care all described as cases of \xe2\x80\x98expul\xc2\xad\nsion.\xe2\x80\x99 \xe2\x80\x9d 8 This authority comments further that the practice of request\xc2\xad\ning recall replaced expulsions \xe2\x80\x9cin the more placid political climate of\nthe nineteenth century.\xe2\x80\x9d 9\nWe believe that this history suggests why the Vienna Convention\nitself does not specifically spell out the right of a receiving state\nforcibly to expel a diplomat. We would add that H2 o f Article 9, read\nliterally, does not purport either to require the receiving state to strip a\nforeign diplomat of his diplomatic status in this situation or suggest that\nremedy is the receiving state\xe2\x80\x99s exclusive remedy to deal with a situation\nin which the sending state has not fulfilled its clear obligation under\nArticle 9 to withdraw its diplomat or to itself terminate the person\xe2\x80\x99s\ndiplomatic status. Nothing in logic supports the proposition that we\nshould assume the right to expel was abandoned as a matter of custom\xc2\xad\nary international law even though it was not specifically spelled out in\nthe Vienna Convention.10 In this connection, we note that the preamble\nto the Convention affirms \xe2\x80\x9cthat the rules of customary international law\nshould continue to govern questions not expressly regulated by the\nprovisions of the present Convention.\xe2\x80\x9d The Vienna Convention, by\nremaining silent on the question of expulsion, in no way precludes a\nreceiving state from taking this action.\nThe position of the United States delegation to the United Nations\nConference which drafted the Convention reflects the understanding of\nthe U.S. government that a receiving state may require the departure of\n7T he drafting history o f A rticle 9 o f the C onvention indicates that the \xe2\x80\x9creasonableness\xe2\x80\x9d o f the\nperiod follow ing a persona non grata action is largely dependent on the attendant circum stances. These\ncircum stances may be such as to w arrant the receiving state\xe2\x80\x99s dem and for im m ediate action.\n8 D enza, at 40.\n9Id., at 41.\n10Id., at 135-36.\n\n211\n\n\x0ca member of the diplomatic mission. In commenting on the question of\nallowing a \xe2\x80\x9creasonable period\xe2\x80\x9d in which the sending state must act\nfollowing a persona non grata determination, the delegation stated: \xe2\x80\x9c[I]n\naggravating circumstances, or where national security is involved,\nthe receiving State may demand his [the diplomat\xe2\x80\x99s] immediate\ndeparture. . . . \xe2\x80\x9d (Emphasis added.)\nFurther evidence of the United States\xe2\x80\x99 interpretation of customary\ninternational law and the practice of the government with respect to\nthe expulsion of diplomats is found in the testimony of Department of\nState Legal Adviser Leonard Meeker before the Senate Foreign Rela\xc2\xad\ntions Committee which considered proposed ratification of the Vienna\nConvention in 1965. Referring to the provision of the Convention\n(Article 41) which requires persons enjoying diplomatic privileges and\nimmunities to respect the law of the receiving state, the Legal Adviser\nstated: \xe2\x80\x9c[I]f the situation becomes serious enough, we would have to in\ncertain cases perhaps require the departure of members of the diplo\xc2\xad\nmatic missions as we have a right to require and will have that right under\nthe Convention, ju st as we do now. \xe2\x80\x9d 11 (Emphasis added.)\nSince 1965, the government has publicly voiced its views concerning\nthe right to expel diplomats. For example, in its report issued regarding\nthe ratification of the Convention on the Privileges and Immunities of\nthe United Nations, the Senate Committee on Foreign Relations paid\nspecial attention to several reservations to the proposed Convention,\none of which stated that:\nPersons who are entitled to diplomatic privileges and\nimmunities under the Convention shall not be required to\nleave the United States otherwise than in accordance with\nthe customary procedure applicable to members of diplo\xc2\xad\nmatic missions accredited or notified to the United States.\nEx. Rep. No. 17, 91st Cong., 2nd Sess. 5 (1970).\nOn its face, this reservation clearly assumes the existence of a\nnonstatutory, presidentially controlled and supervised procedure for the\nexpulsion of foreign diplomatic personnel. More importantly for present\npurposes, the Senate Committee went on to state in its report:\nAs a final recourse, under the proposed reservation and\npresent law, the United States can compel the departure\nfrom its territory of anyone declared persona non grata\n12\n\n" Exec. H. 88th C ong., 1st Sess. 9 (1965).\n12 W e note that in the report to the President from the Secretary o f State o f N ovem ber 6, 1969,\nrecom m ending transm ittal o f the C onvention to the Senate for advice and consent to ratification, the\nterm s \xe2\x80\x9ccom pel\xe2\x80\x9d and \xe2\x80\x99\xe2\x80\x98d e p artu re ,\xe2\x80\x9d \' \xe2\x80\x98expulsion\xe2\x80\x9d and \xe2\x80\x9c expelled\xe2\x80\x9d are used interchangeably. F urtherm ore,\nthat rep o rt contains no reference w h atso ev er to the Im m igration and N ationality A ct, w hich was\napparently assumed not to apply to this issue at all.\n\n212\n\n\x0cThus, it is unquestioned that the United States has traditionally main\xc2\xad\ntained, and continues to maintain, the legal position consistent with\nprevailing rules of international law and practice and the Vienna Con\xc2\xad\nvention on Diplomatic Relations, that the receiving state has the right\nto require the departure, following persona non grata action, of alien\nnonresident members of the staff of a diplomatic mission.13\nAn argument that a diplomat may not be forcibly expelled by a\nreceiving state could be made based on the principle articulated in\nArticle 29 of the Vienna Convention that the \xe2\x80\x9cperson of a diplomatic\nagent shall be inviolable\xe2\x80\x9d and that such a person \xe2\x80\x9cshall not be liable to\nany form of arrest or detention.\xe2\x80\x9d We are not persuaded by that argu\xc2\xad\nment for several reasons. First, these provisions of Article 29 cannot\nand have not been read to mean that a diplomat\xe2\x80\x99s movement is not\nsubject to any control, see Article 26 of the Vienna Convention, or that\nhe cannot be prevented from taking action which violates the domestic\nlaw of the receiving state. [1957] 2 Y.B. Int\xe2\x80\x99l L. Comm\xe2\x80\x99n. 138.14 For\nexample, the Department of State has taken the position that foreign\ndiplomats may be escorted off the New Jersey Turnpike when found to\nbe speeding, even though they were clearly not subject to arrest for\nthat offense.15 We assume there would be no doubt that a foreign\ndiplomat could be physically restrained from committing an assault on\nthe streets of Washington, D.C., even though once again not subject to\narrest for that assault, and that action could be taken without raising\nany substantial question under the Vienna Convention. In our view, an\norder of the President declaring foreign diplomats persona non grata\nwith an accompanying order to depart the United States constitutes a\nlegal determination under United States law that may be enforced in\nsimilar fashion so long as the foreign diplomat affected is treated \xe2\x80\x9cwith\ndue respect\xe2\x80\x9d as provided in Article 29.16\nUnder the analysis above, we believe the President has the constitu\xc2\xad\ntional power forcibly to eject diplomatic personnel declared by him to\n13\nInternational law w ith respect to the treatm ent o f consular officers and consular staff parallels\nthat w ith respect to diplom ats; A rticle 23 o f the V ienna C onvention on C onsular Relations contains\nlanguage nearly identical to that o f paragraphs 1 and 2 o f A rticle 9 o f the V ienna C onvention on\nD iplom atic Relations. U nder this A rticle the receiving state may declare a consular officer persona non\ngrata o r a staff m em ber unacceptable and may w ithdraw recognition o r cease to consider the person as\na m em ber o f the consulate if the sending state refuses to recall the person o r term inate his functions\n\xe2\x80\x9c w ithin a reasonable tim e.\xe2\x80\x9d T h e official records o f the U N C onference w hich adopted this article\nclearly reflect the intention to prescribe rules relating to the determ ination that a m em ber o f a\nconsulate is persona non grata o r no longer acceptable w hich are virtually the sam e as those relating to\nmembers o f a diplom atic mission. T he conferees specifically rejected proposals w hich w ould place\nconsular personnel in a m ore advantaged position vis-a-vis diplom atic personnel. Thus, w e conclude\nthat consular personnel may similarly be required to depart the receiving state follow ing persona non\ngrata action. I Official R ecords UN C onference on C onsular R elations 209-217.\nu I d . at 136.\n15Hearings on Exec. H. Before a Subcom mittee o f the Senate C om mittee on Foreign Relations 20 (1965)\n(drunk diplom at could be \xe2\x80\x9chaul[edj o ff by the scru ff o f his neck\xe2\x80\x9d ).\n16W e believe the phrase \xe2\x80\x9cdue respect\xe2\x80\x9d must be read to authorize the use o f the minimum level o f\nforce necessary to deal w ith any resistance by diplom atic personnel to their expulsion. Likew ise, that\nphrase in no w ay precludes personnel enforcing a presidential o rd e r from using reasonable force to\ndefend them selves from violent acts against their persons.\n\n213\n\n\x0cbe persona non grata from the United States and that the exercise of that\npower would be consistent with international law.\n2. Diplomatic property\nThe President has sole power to recognize foreign countries and to\ndetermine the acceptability of their ministers; inherent in this authority\nis the implied power to control physical access to embassy premises in\nthe United States. This includes the power to take necessary action to\nprotect embassies from damage, and the power to deny possession to or\neject those not recognized as diplomatic personnel of the sending state.\nAs with the expulsion of diplomatic personnel, an argument can be\nmade that the President\xe2\x80\x99s power over the physical premises of diplo\xc2\xad\nmatic properties is limited by the principle set forth in Article 22 of the\nConvention that the premises of an embassy are \xe2\x80\x9cinviolable.\xe2\x80\x9d This\nprinciple of inviolability is generally taken to mean that agents of the\nUnited States may not enter without consent of the head of the mission.\nAt the same time, Article 22 imposes a duty on the receiving state to\ntake \xe2\x80\x9call appropriate steps to protect the premises of the mission against\nany intrusion or damage and to prevent any disturbance of the peace of\nthe mission.\xe2\x80\x9d\nArticle 45 of the Convention, however, modifies these commands\nsomewhat in cases where, as here, the diplomatic personnel are tempo\xc2\xad\nrarily recalled. It requires the receiving state to \xe2\x80\x9crespect and protect\nthe premises of the mission, together with its property and archives,\xe2\x80\x9d\nand authorizes the sending state to trust custody of the premises to a\nthird state acceptable to the receiving state.\nIt is plain from the background of the Convention that the duty in\nArticle 45 to \xe2\x80\x9crespect and protect the premises\xe2\x80\x9d does not mean full\ninviolability. Denza, supra, at 281. Although it is not clear when invio\xc2\xad\nlability ends, analogy to our discussion above of Article 29 regarding\ntermination of personal immunity suggests that inviolability should con\xc2\xad\ntinue for a reasonable time after the premises cease to be used for\ndiplomatic purposes. In turn, this suggests that if the premises are used\nfor purposes incompatible with a diplomatic mission, such as an armed\noccupation, inviolability should cease at that point. In view of this, the\nConvention\xe2\x80\x99s provisions in Articles 22 and 45 protecting the integrity of\nthe embassy premises suggest ample authority to control access to\ndiplomatic property in these circumstances.\nB. Federal Statutory L aw\n\n1. Diplomatic personnel\nThe President\xe2\x80\x99s exclusive power over foreign diplomatic personnel as\na matter of domestic law is explicitly and implicitly recognized in the\n214\n\n\x0cstatute most directly relevant to the issues at hand, the Immigration and\nNationality Act of 1952. Under \xc2\xa7 102 of that Act, 8 U.S.C. \xc2\xa7 1102,\ndiplomatic personnel are generally exempt from the provisions of the\nAct \xe2\x80\x9crelating to ineligibility to receive visas and the exclusion or\ndeportation of aliens.\xe2\x80\x9d The legislative history of \xc2\xa7 102 indicates clearly\nthat the Congress, in leaving these matters to the President, was simply\nrecognizing the constitutional limitations on its ability to control or\nregulate the President\xe2\x80\x99s constitutional power to receive (and expel) the\nforeign representatives of countries with whom we have diplomatic\nrelations. See H.R. Rep. No. 1365, 82nd Cong., 2nd Sess. 34 (1952).\nWe believe this congressional recognition of the President\xe2\x80\x99s exclusive\npower to deal with foreign diplomatic personnel is relevant to a deter\xc2\xad\nmination of the extent to which foreign diplomatic personnel, between\nthe time they are declared persona non grata and the time they depart\nthe United States or are forcibly expelled from the United States, may\nassert some legal entitlement to remain in the United States under the\nImmigration and Nationality Act. We do not believe they have any\nsuch entitlement during that period.\nBoth immigrant and nonimmigrant aliens, whether in this country\nlegally or illegally, are generally entitled to claim various rights to\nremain in this country should it otherwise be determined that they are\ndeportable. Indeed, \xc2\xa7 241(e) of the Immigration and Nationality Act, 8\nU.S.C. \xc2\xa7 1251(e), recognizes that diplomatic personnel who fail to main\xc2\xad\ntain their status as diplomatic personnel may not, when they lose their\nstatus, be required by the Attorney General to depart the United States\nwithout the approval of the Secretary of State except under certain\nlimited circumstances. Thus, the Immigration and Nationality Act rec\xc2\xad\nognized that diplomatic personnel may lose their status and, in doing\nso, become legally entitled to assert other rights to remain in the United\nStates. The question, however, is whether diplomatic personnel, so long\nas they are deemed by the President to retain that status, may claim\nstatutory entitlements to remain in this country after they have been\ndeclared persona non grata and ordered to depart the United States.\nIn addressing this issue, we would first note that a construction of the\nImmigration and Nationality Act which would permit foreign diplo\xc2\xad\nmatic personnel having been declared persona non grata and ordered to\nleave the country to assert other legal rights to remain in this country\nand therefore, by virtue of the process to which they would be entitled,\nat the very least substantially delay their departure, would directly\nimpinge on the President\xe2\x80\x99s power under the Constitution to deal with\ndiplomats and to conduct our foreign relations. Particularly where the\norder for foreign diplomatic personnel to depart is directly related to\nthe conduct of important foreign relations, which it clearly would be\nwith regard to Iranian diplomatic personnel, we believe there would be\na strong presumption against implying that Congress, by statute, gave\n215\n\n\x0csuch diplomatic personnel the means to frustrate a decision by the\nPresident. Cf. N arenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979) cert,\ndenied, 446 U.S. 957 (1980). Generally, statutes should not be read to\nconflict with the Constitution, Crowell v. Benson, 285 U.S. 22, 62 (1932),\ntreaties, United States v. Lee Yen Tai, 185 U.S. 213, 221-22 (1902), or\nthe law of nations, Lauritzen v. Larsen, 345 U.S. 571, 578 (1953).\nAs indicated above, \xc2\xa7 102 of the Act, 8 U.S.C. \xc2\xa7 1102, generally sets\nforeign diplomatic personnel apart from other classes of nonimmigrants\nfor purposes of the Act. There would appear to be no judicial prece\xc2\xad\ndent regarding what rights foreign diplomatic personnel might have to\ninterpose legal objections based on federal substantive law to their\nbeing expelled from the country on order of the President. One line of\nauthority, however, dealing with persons paroled into this country\npursuant to \xc2\xa7 212(d)(5) of the Act, 8 U.S.C. \xc2\xa7 1182(d)(5), supports our\nconclusion that foreign diplomatic personnel should be viewed as\nhaving no such rights.\nUnder \xc2\xa7 212(d)(5), the Attorney General is authorized to parole aliens\ninto the United States under certain circumstances. Notwithstanding the\nfact that such parolees are physically within the United States, the\nSupreme Court has held that they are not entitled to assert any legal\nentitlement to remain in the country beyond the terms upon which they\nwere paroled into the country even though, as a factual matter, they\nmight otherwise qualify under the Immigration and Nationality Act to\nremain in the United States or at least to receive the Attorney Gener\xc2\xad\nal\xe2\x80\x99s consideration of their claim to legal entitlement to remain in the\nUnited States. See Leng M ay M a v. Barber, 357 U.S. 185 (1958).\nAlthough parolees, unlike foreign diplomatic personnel, do not tech\xc2\xad\nnically have \xe2\x80\x9cnonimmigrant\xe2\x80\x9d status, both classes of persons are phys\xc2\xad\nically present in this country. In the case of parolees, the courts have\ndetermined that they have no entitlement to assert any legal right to\nremain in the country because they have not \xe2\x80\x9centered\xe2\x80\x9d the country\neven though, as indicated above, they may be physically present not\nonly at the border but indeed within the interior of the United States. A\ndistrict court has summed up this concept of entry by stating that entry\n\xe2\x80\x9cmeans freedom from governmental restraint . . .\nKlapholz v.\nEsperdy, 201 F. Supp. 294, 297 (S.D. N.Y. 1961). These cases clearly\nestablish the proposition that the Constitution does not itself affect the\npower of the Congress or the President to effect the removal of some\nclasses of persons within our physical borders summarily.\nIn short, we do not believe that foreign diplomatic personnel have\nany statutory right to assert any legal entitlement to remain in the\nUnited States once they have been declared persona non grata and have\nbeen ordered to leave the country. This reading of the Immigration and\nNationality A ct is consistent with and supported by the doctrine, dis\xc2\xad\ncussed supra, that statutes should be construed to avoid raising doubts\n\n216\n\n\x0cas to their constitutionality, Crowell v. Benson, supra; Broadrick v.\nOklahoma, 413 U.S. 601 (1973). It is also consistent with the most\nrecent expression by the Senate touching on this issue.\nIn its report regarding the ratification of the Convention on the\nPrivileges and Immunities of the United Nations, the Senate Committee\non Foreign Relations paid special attention to several reservations to\nthe proposed Convention, one of which stated:\nPersons who are entitled to diplomatic privileges and\nimmunities under the Convention shall not be required to\nleave the United States otherwise than in accordance with\nthe customary procedure applicable to members of diplo\xc2\xad\nmatic missions accredited or notified to the United States.\nEx. Rep. No. 17, 91st Cong., 2nd Sess. 5 (1970). On its face, this\nreservation clearly assumes the existence of a nonstatutory, presidentially controlled and supervised procedure for the expulsion of foreign\ndiplomatic personnel. More importantly, for present purposes, the\nSenate Committee went on to state in its report (id.):\nAs a final recourse, under the proposed reservation and\npresent law, the United States can compel the departure\nfrom its territory of anyone declared persona non\ngrata. . . .\n\nA separate question arises whether a foreign diplomat having been\ndeclared persona non grata and ordered to leave the United States could\nfrustrate or delay the execution of that order either by himself renounc\xc2\xad\ning his status as a foreign diplomat or having his diplomatic credentials\nrevoked by his government. Although the issue is not free from doubt,\nwe believe that neither the individual act of a foreign diplomat nor an\nact of the sending state which would substantially undermine the for\xc2\xad\neign policy objective of the President should be permitted to do so.\nThus, were the President to determine that the quick and sure expulsion\nof an identified group of foreign diplomats would significantly advance\nthe foreign policy interests of the United States, we would not read\neither international law, i.e., the Vienna Convention, or domestic law,\ni.e., the Immigration and Nationality Act of 1952, as permitting the\nfrustration of that foreign policy objective and the President\xe2\x80\x99s constitu\xc2\xad\ntional authority to carry it out. Under Article 9 of the Convention,\nfailure of the sending state to withdraw its diplomatic personnel in such\nsituations specifically entitles the receiving state to strip the foreign\ndiplomatic personnel involved of their status as diplomats. We see no\nlogical reason to suggest that Article 9 does not implicitly recognize\nthe power of receiving states to take action short of totally withdraw\xc2\xad\ning that status and the immunities that accompany that status. As\nindicated in Part I of this memorandum, we believe the President\nconstitutionally may do so. In this situation, the status of the diplomatic\n217\n\n\x0cpersonnel does not necessarily revert to one of being merely \xe2\x80\x9cillegal\naliens\xe2\x80\x9d in the United States.\nThis analysis also would apply, we believe, to a situation in which a\nforeign diplomat, rather than complying with a directive to depart the\nUnited States, went into hiding and was later found after the scheduled\ndate for his departure had passed. In such a situation, we see no reason\nto recognize that act as bringing him within the protection of the\nImmigration and Nationality Act any more than a similar act commit\xc2\xad\nted by a parolee. W hether Congress could constitutionally provide such\nprotections for \xe2\x80\x9cex-diplomats\xe2\x80\x9d is a question we need not address; we\nsimply conclude that Congress has expressed no intent in the Immigra\xc2\xad\ntion and Nationality Act for such foreign diplomats to receive the\nbenefits of the United States domestic law as a result of their defiance\nof an order issued by the President. Rather, Congress by its silence has\nleft to the President the determination of when, for domestic law\npurposes, a foreign diplomat may lose that status and secure the benefits\nof our domestic law.\nNotwithstanding the clear constitutional power of the President to\nreceive ambassadors and public ministers, their status as nonimmigrant\naliens under the Immigration and Nationality Act may make it prudent\nfor the Executive to take certain actions that might make it more\ndifficult for a recalcitrant Iranian diplomat to challenge successfully the\nPresident\xe2\x80\x99s decision in a federal court. Certain sections of the Act,\nparticularly \xc2\xa7\xc2\xa7245 and 248, U.S.C. \xc2\xa7\xc2\xa7 1255 and 1258 might be invoked\nas allowing a nonimmigrant to apply, as any other nonimmigrant may\napply, to adjust his status or to change his classification. Since those\nsections entitle an alien \xe2\x80\x9cwho is continuing to maintain\xe2\x80\x9d his nonimmi\xc2\xad\ngrant status to make such applications, it would seem prudent for the\nExecutive to use powers conferred by the Immigration and Nationality\nAct which might forestall this eventuality. Section 22 l(i) of the Immi\xc2\xad\ngration and Nationality Act, 8 U.S.C. \xc2\xa7 1201(i), provides that after the\nissuance of a visa \xe2\x80\x9cthe Secretary of State may at any time, in his\ndiscretion, revoke such visa or other documentation. Notice of such\nrevocation shall be communicated to the Attorney General and such\nrevocation shall invalidate the visa or other documentation from the\ndate of issuance.\xe2\x80\x9d Thus, if the Secretary revoked the visas of diplomats\nwho were declared persona non grata, the effect would be to cancel the\ndiplomat\xe2\x80\x99s nonimmigrant status, with the result that his arguable entitle\xc2\xad\nment to adjustment would disappear.\nWhile termination of the status of a diplomat is rare in our practice,\nthis is precisely what was done in 1961 in the case of Miroslav\nNacvalac, a member of the Permanent Mission of the Czechoslovak\nSocialist Republic to the United States. The record indicates that prior\nto the revocation of Mr. Nacvalac\xe2\x80\x99s status under \xc2\xa7 101(a)(15)(G) of the\nImmigration and Nationality Act, 8 U.S.C. \xc2\xa7 1101(a)(15)(G), he had\n218\n\n\x0cindicated an interest in discussing the possibility of remaining in the\nUnited States. In Press Release 421 dated June 21, the Department of\nState indicated that the effect of the revocation of Mr. Nacvalac\xe2\x80\x99s\nstatus \xe2\x80\x9cis to place [him] in the category of an alien illegally in the\nUnited States of America.\xe2\x80\x9d The press release continued: \xe2\x80\x9cUnder the\nlaws and regulations of the United States of America, Nacvalac may\nelect to depart voluntarily or in lieu of such voluntary departure, be\nremoved.\xe2\x80\x9d A footnote to the press release, which was reprinted in the\nDepartment of State Bulletin Vol. XLV, page 67, indicated that Mr.\nNacvalac left the United States the next day.\nThere have been only two decided cases in which a judge has\nconfronted the question of visa revocation by the Secretary of State. In\nthe first case there was no opinion. The second case, which was\ndecided last year, is Knoetze v. United States, A ll. F. Supp. 201 (S.D.\nFla. 1979), a f f d 634 F.2d 207 (5th Cir.), cert, denied 454 U.S. 823\n(1981). In that case Judge Rottger of the United States District Court\nfor the Southern District of Florida sustained the Secretary\xe2\x80\x99s power to\nrevoke visas. However, in his opinion he expressed concern that, when\nan alien whose visa was being revoked was in the United States, he did\nnot have an administrative mechanism to insure that a revocation had\nnot been erroneous. To meet this point, we believe that if it is decided\nfor reasons of prudence to revoke visas of certain Iranian diplomats, the\nDepartment of State should establish an informal board of review to\nconsider claims that revocation had been based on a mistake of fact.\nIn summary, we believe that the President has the authority to\nrequire the removal from the United States of diplomats declared per\xc2\xad\nsona non grata. However, we believe that prudence dictates that in\ncertain cases we should revoke the visas of such diplomats in order to\nforestall invocation of sections of the Immigration and Nationality Act\nas a basis for challenging the President\xe2\x80\x99s decision. We believe that by\nusing the revocation power, the government could demonstrate to a\ncourt that an objecting diplomat or consul had no colorable claim for\nrelief under the terms of the Act.\n2. Diplomatic property\nProtection of embassy premises and diplomatic personnel is generally\nperformed by the Secret Service\xe2\x80\x99s Uniformed Division under 3 U.S.C.\n\xc2\xa7 202, which provides that, subject to the supervision of the Secretary\nof the Treasury, the Division shall perform \xe2\x80\x9csuch duties as the Direc\xc2\xad\ntor, United States Secret Service, may prescribe in connection with the\nprotection of the following . . . (4) foreign diplomatic missions located\nin the metropolitan area of the District of Columbia; . . . and (8)\nforeign diplomatic missions located in such areas in the United States,\nits territories and possessions, as the President, on a case-by-case basis,\n219\n\n\x0cmay direct. The members of such force shall possess privileges and\npowers similar to those of the members of the Metropolitan Police of\nthe District of Columbia.\xe2\x80\x9d\nThis statute first extended protection to diplomatic missions in 1970,\nin response to concern that the Metropolitan Police were providing\ninadequate protection against ordinary crime. Pub. L. No. 91-217, 84\nStat. 74. See generally S. Rep. No. 659, 91st Cong., 2d Sess. (1970). The\nextent of the \xe2\x80\x9cprotection\xe2\x80\x9d that may be afforded is otherwise undefined\nin the legislative history. The ordinary meaning of the term suggests\nsafeguarding the premises against damage or theft, and the personnel\nagainst assaults. The duty imposed on the United States by the Vienna\nConvention to protect mission premises even after the recall of the\npersonnel strongly suggests that the Secret Service\xe2\x80\x99s duties do not end\nwith the sealing of a mission. Where recall is temporary, as here, there\npresumably must be a mission to which the personnel may return when\nrelations improve. Thus, the Service has present duties to protect Ira\xc2\xad\nnian diplomatic property against third parties. These duties will extend\nto the consulates, however, only if the President so directs the Service.\nMore difficult questions surround the power of the Service regarding\nnondiplomatic persons who assert the permission of the sending state to\nenter. Here, because the President has sole power to determine what\ngovernments and ministers are to be recognized, we believe there is\nimplied power for the President to direct the Service to forbid access\nto* those not currently recognized as accredited diplomatic personnel to\nensure that only those having diplomatic business with the embassy\nhave access to it.\nUnder 18 U.S.C. \xc2\xa7970, damage or unauthorized occupancy of a\ndiplomatic mission is a crim e.17 This provision, passed in response to\nterrorism at the Munich Olympics and elsewhere, is part of the \xe2\x80\x9cAct\nfor the Prevention and Punishment of Crimes Against Internationally\nProtected Persons,\xe2\x80\x9d Pub. L. No. 94\xe2\x80\x94467, 90 Stat. 1997. This statute\n17 (a) W hoever willfully injures, dam ages, o r destroys, o r attem pts to injure, dam age, or\ndestroy, any property, real o r personal, located w ithin th e U nited States and belonging to\no r utilized o r occupied by any foreign governm ent o r international organization, by a\nforeign official o r official guest, shall be fined not m ore th an $10,000, o r im prisoned not\nm ore than five years, o r bo th .\n(b) W noever, willfully w ith intent to intim idate, coerce, threaten, o r harass\xe2\x80\x94\n(1) forcibly thrusts any p art o f him self o r any o bject w ithin or uport that portion o f any\nbuilding o r premises located w ithin the U nited States, w hich portion is used or\noccupied fo r official business o r for diplom atic, consular, o r residential purposes by\xe2\x80\x94\n(A ) a foreign governm ent, including such use as a mission to an international\norganization . . . ;\n(2) refuses to d ep art from such portion o f such building o r premises after a request\xe2\x80\x94\n(A ) by an em ployee o f a foreign g o vernm ent o r o f an international organization, if\nsuch em ployee is authorized to m ake such request by the senior official o f the unit\no f such g o vernm ent o r organization w hich occupies such portion o f such building or\npremises; . . .\n(D ) by anv person present having law enforcem ent pow ers;\nshall b e fined not m ore th an $500 o r im prisoned not m ore than six m onths, o r both.\n\n220\n\n\x0csurely provides authority for measures designed to protect the embassy\nagainst entry by anyone who has no permission from the government of\nIran. Whether this ban can include those purportedly authorized access\nby the Iranian government but not recognized as accredited personnel\nby the United States may be less clear. Section 970 refers to 18 U.S.C.\n\xc2\xa7 1116(b) for its definition of the foreign government whose premises\nare protected, and includes countries \xe2\x80\x9cirrespective of recognition by the\nUnited States.\xe2\x80\x9d The foreign officials entitled to demand that unauthor\xc2\xad\nized persons depart the premises are defined, however, as those \xe2\x80\x9cduly\nnotified to the United States as an officer or employee of a foreign\ngovernment.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 1116(b)(3)(B). Thus, the statute appears not\nto authorize unaccredited foreign persons to demand the exit of others\nfrom diplomatic premises. When the accredited personnel have been\nexpelled, this definition implies added scope to the authority under\n\xc2\xa7 970(b)(2)(D) of \xe2\x80\x9cany person present having law enforcement powers\xe2\x80\x9d\nto order departure from the mission as necessary.\nThis federal statute was not meant to \xe2\x80\x9crelieve any person of any\nobligation imposed by any law of any state, . . . or the District of\nColumbia.\xe2\x80\x9d H.R. Rep. No. 1614, 94th Cong., 2d Sess. 8 (1976). Because\nthis statute was explicit in its refusal to preempt local criminal law, the\nSecret Service and the Metropolitan Police should have powers so\nconferred available to them. See Fatemi v. United States, 192 A.2d 525\n(D.C. Ct. App. 1963) (holding that Iranian students occupying the\nembassy against the wishes of the Minister could be convicted of\n\xe2\x80\x9cunlawful entry\xe2\x80\x9d under the D.C. Code).\nFinally, we believe that the Federal Bureau of Investigation (FBI)\nmay participate in controlling access to diplomatic property under its\ngeneral enabling authority, 28 U.S.C. \xc2\xa7 533:\nThe Attorney General may appoint officials\xe2\x80\x94\n(1) to detect and prosecute crimes against the United\nStates;\n(2) to assist in the protection of the person of the\nPresident; and\n(3) to conduct such other investigations regarding\nofficial matters under the control of the Depart\xc2\xad\nment of Justice and the Department of State as\nmay be directed by the Attorney General. . . .\nThe presence of 18 U.S.C. \xc2\xa7970, making unauthorized entries into\ndiplomatic property a federal crime, is sufficient to invoke FBI jurisdic\xc2\xad\ntion under \xc2\xa7 533(1).\nWe would add that because actions taken to carry out the President\xe2\x80\x99s\norder for diplomats to leave this country are incident to an exercise of\nhis constitutional power, they neither rely on statutory authority for\ndirect support nor are subject to the restrictions of the Posse Comitatus\n221\n\n\x0cAct, 18 U.S.C. \xc2\xa7 1385, which generally restricts the use of Army or Air\nForce personnel to enforce civilian criminal law. In addition, 18 U.S.C.\n\xc2\xa7 1116(d) specifically permits the use of military personnel from all the\nArmed Forces to enforce 18 U.S.C. \xc2\xa7970. Thus, we believe that the\nPresident is entitled to call on the full range of his resources in the\nExecutive Branch to achieve the objectives discussed herein. In addi\xc2\xad\ntion, \xc2\xa7 1116(d) permits the President to draw on the resources of state\nor local law enforcement agencies in this situation.\nIII. The Due Process Clause of the Fifth Amendment\nThe final question presented by the expulsion of foreign diplomatic\npersonnel from the country is whether the Due Process Clause of the\nFifth Amendment requires that any kind of process be observed prior\nto their expulsion. This Office has previously taken the position that\nforeign diplomatic personnel derive their legal rights from their status\nas diplomats under international law. We believe the Due Process\nClause is implicated, if at all, only with regard to the determination\nwhether a person about to be forcibly expelled from the United States\npursuant to an order of the President is in fact the person the President\nordered to be expelled. Pursuant to our meeting of March 28, 1980,\nwith representatives of the Department of State, we understand that a\nprocedure reasonably calculated to ensure expulsion only of those per\xc2\xad\nsons previously ordered to be expelled by the President will be utilized.\nIn these circumstances, we believe that the Due Process Clause, if\napplicable at all, would be fully satisfied and therefore we pretermit\nfurther discussion of that issue.18\nJohn M . H arm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n18 An issue related to the question of the applicability o f the Constitution to the forcible ejection of\na foreign diplom at from the United States is the extent to w hich the order of the President w ould be\nsubject to judicial review. Because a foreign diplom at being forcibly ejected w ould arguably be in the\n\xe2\x80\x9ccustody\xe2\x80\x9d o f the President\xe2\x80\x99s agents w ho w ere carrying out the President\xe2\x80\x99s order to depart, there might\nbe a colorable claim that a w rit o f habeas corpus pursuant to 28 U.S.C. \xc2\xa7 2241(c)(4) w ould be\navailable. U nder o ur analysis above, w e believe that the only claim upon w hich a w rit o f habeas\ncorpus could even arguably be granted in this situation w ould be a claim that the person bringing the\naction is not in fact the same person as the foreign diplom at ordered to leave the country by the\nPresident. As indicated above, a procedure designed reasonably to ensure that such a mistake is not\nmade should reduce litigation risks to the minimum.\n\n222\n\n\x0c'


b'The Secretary of Transportation\xe2\x80\x99s Continued Authority\nto Sell the Consolidated Rail Corporation Under the\nRegional Rail Reorganization Act in Light of\nINS v. Chadha, 462 U.S. 919 (1983)\nThe legislative veto provisions o f the Regional Rail Reorganization Act, 45 U.S.C. \xc2\xa7\xc2\xa7 761(a)(3),\n767(d), which purport to condition the Secretary of Transportation\xe2\x80\x99s authority to sell Consoli\xc2\xad\ndated Rail Corporation (Conrail) as an entity or by sale o f assets, are unconstitutional under\nthe Supreme C ourt\xe2\x80\x99s decision in INS v. Chadha, 462 U.S. 919 (1983). Nonetheless, the\nSecretary of Transportation continues to have authority to sell Conrail, either as an entity or\nby sale o f assets, because the unconstitutional veto provisions are severable from the rest o f\nthe statute.\nThe severability o f an unconstitutional provision from the remainder o f the statute is determined\nby analyzing w hether Congress would have enacted the remainder of the statute had it\nrecognized that the questioned provisions were unconstitutional.\nThe presence o f a severability clause in the Regional Rail Reorganization Act creates a strong\npresumption that Congress intended that any unconstitutional provisions be severable from\nthe rem ainder o f the statute. The legislative veto provisions are further presum ed severable\nbecause the Secretary\'s sale authority remains \xe2\x80\x9cfully operative as a law \xe2\x80\x9d w ithout the legisla\xc2\xad\ntive veto provisions. The legislative history, taken as a whole, also suggests that Congress\nwould have wanted the Secretary of Transportation to exercise the sale authority even w ithout\nthe legislative vetoes, and thus provides insufficient evidence to rebut the presum ption o f\nseverability created by the severability clause and the otherwise \xe2\x80\x9cfully operative\xe2\x80\x9d statutory\nscheme.\n\nSeptember 16, 1983\nM\n\nem orandum\n\nO p in io n\n\nfor t h e\n\nSecretary\n\nof\n\nT r a n s p o r t a t io n\n\nThis memorandum responds to your request for our view whether the Secre\xc2\xad\ntary of Transportation (Secretary) continues to have authority to sell the Con\xc2\xad\nsolidated Rail Corporation (Conrail) under the Regional Rail Reorganization\nAct of 1973, as amended, 45 U.S.C. \xc2\xa7\xc2\xa7 701 er seq. (3R Act), either as an entity,\nsee 45 U.S.C. \xc2\xa7 761, or by sale of assets (\xe2\x80\x9cfreight transfer agreements\xe2\x80\x9d), see 45\nU.S.C. \xc2\xa7 765, in light of the recent Supreme Court decision in INS v. Chadha,\n462 U.S. 919 (1983). Because the Secretary\xe2\x80\x99s authority to sell Conrail as an\nentity is subject to a two-House veto provision, see 45 U.S.C. \xc2\xa7 761(d)(3), that\nis unconstitutional under United States Senate v. FTC, 463 U.S. 1216 (1983)\n(summary affirmance), and the authority to sell Conrail by freight transfer\nagreements is subject to a one-House veto that is unconstitutional under the\nanalysis set forth in Chadha, you have asked us to determine whether the\n153\n\n\x0cSecretary\xe2\x80\x99s underlying sale authority remains valid. You have also noted that,\nin light of the Chadha decision, the leadership of the House Committee on\nEnergy and Commerce and its Subcommittee on Transportation has initiated\nlegislation that would replace both legislative veto provisions with the require\xc2\xad\nment that Congress affirmatively enact into law any sale plan arranged by the\nSecretary. For the reasons set forth below, we conclude that the legislative veto\nprovisions are severable and that there is no constitutional impediment to the\nSecretary\xe2\x80\x99s continued authority to sell Conrail either as an entity or by sale of\nassets.\n\nI. Background\nIn 1981, Congress enacted the Northeast Rail Service Act of 1981, a subtitle\nof Title XI of the Omnibus Budget Reconciliation Act of 1981. See Pub. L. No.\n97-35, 95 Stat. 357, 643 (1981). Section 1142 of the subtitle amended the 3R\nAct of 1973 by inserting a new Title IV that authorizes the Secretary to arrange\nfor the sale of the common stock of Conrail or to engage in freight transfer\nagreements. Pursuant to the legislative scheme, the Secretary shall, as soon as\npracticable, engage the services of an investment banking firm to arrange for\nthe sale of the interest of the United States in the common stock of Conrail. See\n45 U.S.C. \xc2\xa7 761(a)(1). The Secretary may submit a stock sale plan to Congress\nif that plan ensures continued rail service, promotes competitive bidding for the\ncommon stock, and maximizes the return to the United States on its investment.\nSee id. \xc2\xa7 761(a)(2). A plan that meets these requirements is deemed approved\nsixty days after its submission to Congress, unless both Houses pass a concur\xc2\xad\nrent resolution disapproving the plan. See id. \xc2\xa7 761(a)(3).\nCongress also required the Board of Directors of the United States Railway\nAssociation (USRA Board) to make a prospective determination on June 1,\n1983 whether Conrail will be a profitable carrier. See id. \xc2\xa7 763.1 If the USRA\nBoard determines that Conrail will be profitable, the Secretary is to continue\npursuit of the stock sale plan. If the USRA Board determines that Conrail will\nnot be a profitable carrier, the Secretary is authorized to initiate negotiations\nfor the transfer of Conrail\xe2\x80\x99s properties and service responsibilities. See id.\n\xc2\xa7 763(a)(3)(A), (B). Because the USRA Board found Conrail profitable on\nJune 1,1983, the Secretary is continuing to pursue the sale of Conrail as an entity.\nOnce Conrail meets the initial profitability test, the USRA Board is required\nto make a historically based determination whether Conrail has been profitable\nfrom June 1 to October 31, 1983. See id. \xc2\xa7 763(b)(1). Again, if the USRA\nBoard finds that Conrail has been a profitable carrier, the Secretary must\ncontinue to pursue the sale of Conrail as an entity at least until June 1, 1984. If\nthe USRA Board finds that Conrail has not been a profitable carrier, the\nSecretary is authorized to negotiate freight transfer agreements to sell Conrail\n1 The U nited States R ailw ay A ssociation (USRA) is a nonprofit association authorized to m onitor the\nfinancial perform ance o f C onrail and to review w hether certain goals, such as the creation through reorgani\xc2\xad\nzation o f a fin an cially self- sustaining reg io n al rail system , are met. See 45 U.S.C. \xc2\xa7\xc2\xa7 711-719.\n\n154\n\n\x0cin pieces. See id. \xc2\xa7 763(b)(3)(A), (B). After June 1, 1984, the Secretary may\nnotify the USRA Board that she is unable to sell Conrail as an entity, and if the\nUSRA Board approves the Secretary\xe2\x80\x99s determination then the employees have\n90 days within which to submit a stock purchase plan. Thereafter, if no\nemployee stock purchase plan is approved, the Secretary is authorized to\nnegotiate for the transfer of Conrail in pieces. If the USRA Board does not\nconcur in the Secretary\xe2\x80\x99s June 1, 1984, determination, however, the procedure\nfor continuing to sell Conrail as an entity and, if unsuccessful, seeking approval\nfor authority to negotiate freight transfer agreements is repeated every ninety\ndays. See id. \xc2\xa7 764; 127 Cong. Rec. 19505 (1981) (Explanatory Statement of\nConferees on Title XI of Omnibus Budget Reconciliation Bill as provided for\nin the House Conference Report).\nThe Secretary\xe2\x80\x99s authority to negotiate for the transfer of Conrail\xe2\x80\x99s rail\nproperties and service responsibilities, once triggered by the requisite prior\nconditions, see 45 U.S.C. \xc2\xa7 765(a), is carefully circumscribed by congressionally defined goals and provisions for consultation and review. The Secretary\nmust consult, among others, railroads, employee representatives, State and\nlocal government officials, shippers, consumer representatives, and potential\npurchasers. See id. \xc2\xa7 765(b), (d). The Secretary must ensure that no less than 75\npercent of Conrail\xe2\x80\x99s rail service operations are maintained under the aggregate\nof the freight transfer agreements and that the agreements provide for the long\nterm viability of the acquiring private sector railroads and the enhancement of\ncompetition. See id. \xc2\xa7 766. After preliminary approval of the freight transfer\nagreements the Secretary shall request public comment for at least thirty days;\nthe Attorney General must then advise the Secretary within ten days whether\nthe agreements are inconsistent with the antitrust laws, and the Interstate\nCommerce Commission (ICC) during the same time period must advise the\nSecretary of the effect of the agreements on the adequacy of public transporta\xc2\xad\ntion and railroad competition. See id. \xc2\xa7 767(a), (b). Finally, after any modifica\xc2\xad\ntions in light of the above described comments and advice, the Secretary may\ngrant final approval to the freight transfer agreements subject to a one-House\nresolution of disapproval within sixty days of transmittal of the freight transfer\nagreements to Congress. See id. \xc2\xa7 767(d).\nII. Severability\nWhether the Secretary continues to have authority to sell Conrail as an entity\nunder 45 U.S.C. \xc2\xa7 761 in the absence of the two-House veto provision in\n\xc2\xa7 761(a)(3) depends on whether that provision of \xc2\xa7 761(a)(3) is severable from\nthe remainder of \xc2\xa7 761. Similarly, whether the Secretary has authority to\napprove freight transfer agreements for the sale of Conrail\xe2\x80\x99s rail properties\nunder 45 U.S.C. \xc2\xa7\xc2\xa7 765-767 depends on whether the disapproval provision in\n\xc2\xa7 767(d) is severable from the rest of these statutory provisions. Determining\nthe severability of an unconstitutional provision from the remainder of a statute\nrequires an \xe2\x80\x9celusive inquiry\xe2\x80\x9d into legislative intent: whether Congress would\n155\n\n\x0chave enacted the remainder o f the statute had it recognized that the questioned\nprovisions were unconstitutional and therefore could not have properly been\nincluded in the statute. See United States v. Jackson, 390 U.S. 570 (1968);\nD orchy v. Kansas, 264 U.S. 286, 290 (1924); Consumer Energy Council o f\nA m erica v. FERC, 673 F.2d 425, 442 (D.C. Cir. 1982), a f f d mem. sub nom.\nP rocess G as Consumers Group v. Consumer Energy Council, 463 U.S. 1216\n(1983). The invalid portions are to be severed \xe2\x80\x9cunless it is evident that the\nLegislature would not have enacted those provisions which are within its\npower, independently of that which is not.\xe2\x80\x9d INS v. Chadha, 462 U.S. at 931-32\n(quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976)). In the present case, we\nmust attempt to determine which of two basic options Congress would have\nchosen. Congress could have decided to authorize the Secretary to sell Conrail,\neither as an entity or by sale of assets, absent the opportunity for a legislative\nveto; alternatively, Congress could have refused to authorize the Secretary to\nsell Conrail in the absence of a provision for legislative review.\nIn INS v. Chadha, the Court analyzed the severability question by discerning\ncertain statutory characteristics that create a presumption of severability and by\nexamining the legislative history to determine whether it was sufficient to rebut\nthose presumptions. First, the presence of a severability clause \xe2\x80\x9cplainly autho\xc2\xad\nrized\xe2\x80\x9d the presumption that Congress intended that any unconstitutional provi\xc2\xad\nsion be severable from the remainder of the statute. See 462 U.S. at 932. In the\npresent instance, there is a severability clause, which was contained in the\noriginal legislation, the 3R Act of 1973. See 45 U.S.C. \xc2\xa7 701 note.2 This clause,\nwhich is virtually identical to the severability provision at issue in Chadha,\nprovides that: \xe2\x80\x9cIf any provision of this Ac t . . . or the application thereof to any\nperson or circumstances is held invalid, the remainder of this Act and the\napplication of such provision to other persons or circumstances shall not be\naffected thereby.\xe2\x80\x9d Although the Omnibus Budget Reconciliation Act of 1981,\nwhich enacted the relevant provisions governing the sale of Conrail, does not\ncontain a severability provision, it is significant that the 1981 statute specifi\xc2\xad\ncally provides that the Conrail sale provisions amend the 3R Act of 1973. See\nPub. L. No. 97-35, \xc2\xa7 1142,95 Stat. 654 (1981) (\xe2\x80\x9cThe Regional Rail Reorgani\xc2\xad\nzation Act of 1973 is amended by inserting immediately after Title III the\nfollowing new title: \xe2\x80\x98Title IV Transfer of Freight Service\xe2\x80\x99\xe2\x80\x9d). Because Congress\nwas clearly aware that the 1981 amendments were to become a part of the 3R\nAct of 1973, we must presume that Congress understood that the original\nseverability clause was fully applicable to the more recent statutory additions.\nCf. A lb e m a z v. U nited States, 450 U.S. 333, 342 (1981) (Congress presumed to\nbe aware of existing law and to legislate with it in mind). We therefore\nconclude, as the Supreme Court did in Chadha, that the language of the\n2 W e d eem it irrelevant for purposes o f an aly sis that the severability provision currently is set forth in a note\nrather than in an independent provision in the U nited States C ode. The legislation, as originally enacted,\ncontain ed an independent \xe2\x80\x9cSeparability Provision.\xe2\x80\x9d See Pub. L. No. 93-2 3 6 , \xc2\xa7 6 0 4 ,8 7 Stat. 1023 (1974) The\nsubsequent decision to classify the statutory provision as a note was m ade by the Law Revision Counsel o f the\nH ouse o f R epresentatives, as authorized by 2 U.S.C. \xc2\xa7 285b, and not by Congress itself as a legislative act.\n\n156\n\n\x0cseverability clause \xe2\x80\x9cis unambiguous and gives rise to a presumption that\nCongress did not intend the validity of the Act as a whole, or any part of the\nAct, to depend upon whether the veto clause . . . was invalid.\xe2\x80\x9d 462 U.S. at 932.\nThe Supreme Court in Chadha also determined that \xe2\x80\x9ca provision is further\npresumed severable if what remains after severance \xe2\x80\x98is fully operative as a\nlaw.\xe2\x80\x99\xe2\x80\x9d 462 U.S. at 934 (quoting ChamplinRefining Co. v. Corporation Com m \xe2\x80\x99n,\n286 U.S. at 234). Similar to the legal situation under the statutory scheme\nremaining after severance in Chadha, the Secretary\xe2\x80\x99s sale authority under\n\xc2\xa7 761 and \xc2\xa7\xc2\xa7 765-767 is fully operative and remains a workable administrative\nmachinery without the legislative veto provisions in \xc2\xa7 761(a)(3) and \xc2\xa7 761(d).\nThe Secretary\xe2\x80\x99s authority to sell Conrail as an entity under \xc2\xa7 761 remains,\nindependent of the two-House veto provision, and that authority is channeled\nby the congressionally defined goals of ensuring continued service and of\nmaximizing the return of the United States on its investment. See 45 U.S.C.\n\xc2\xa7 761(a)(2). The Secretary\xe2\x80\x99s authority to sell Conrail as an entity also continues\nto be subject to the profitability determinations of the USRA Board: under\ncertain conditions the Secretary must attempt sale as an entity and has no\ndiscretion to negotiate for transfers of assets. Moreover, Congress\xe2\x80\x99 oversight of\nthe exercise of this delegated authority is preserved, because pursuant to\n\xc2\xa7 761(a)(2) the Secretary is to submit to Congress any plan for the sale of\nConrail\xe2\x80\x99s common stock.3 And as Chadha suggests, although the legislative\nveto provision in \xc2\xa7 761(a)(3) is invalid, Congress would presumably retain the\npower, during the time allotted in \xc2\xa7 761(a)(3), to enact a law, in accordance\nwith the requirements of bicameralism and presentment set forth in Article I of\nthe Constitution, forbidding the submitted sale plan. See 462 U.S. at 971-72 n.8.\nLikewise, the Secretary\xe2\x80\x99s authority to negotiate freight transfer agreements\nunder \xc2\xa7 765, subject to the congressional goals set forth in \xc2\xa7 766(a), remains\nfully operative. Independent of the one-House veto provision in \xc2\xa7 767(d), the\nadministrative process adopted by Congress \xe2\x80\x94 comprising USRA Board ap\xc2\xad\nproval of the Secretary\xe2\x80\x99s determination of inability to sell Conrail as an entity,\nnegotiations and conferences between the Secretary and parties interested in\ndeveloping freight transfer agreements, public comment, and the advice of the\nAttorney General and the ICC on the transfer agreements \xe2\x80\x94 remains otherwise\nintact. Congressional oversight is ensured because \xc2\xa7 765(f) requires the Secre\xc2\xad\ntary to submit reports to Congress every six months on her activities in\nnegotiating freight transfer agreements.4 And, as noted above, Congress pre\xc2\xad\nsumably retains the power to reject, albeit by plenary legislation, the freight\ntransfer agreements within the 60-day time period for legislative review estab\xc2\xad\nlished by the statute. Unquestionably, both \xc2\xa7\xc2\xa7 761 and 767 survive as workable\n3 Although \xc2\xa7 761(a)(2) is phrased in terms o f \xe2\x80\x9cthe Secretary may subm it,\xe2\x80\x9d it is unclear what range o f\ndiscretion is thereby granted the Secretary. Presum ably, the Secretary w ould not have to subm it clearly\nunviable o r uneconom ical proposals that fail to m eet the congressional goals of continued service and\nm aximum return to the U nited States on its investment.\n4 Section 765(f) fu rth er requires concurrent notification o f C ongress and the USRA B oard w henever the\nSecretary finds that she is unable to sell Conrail as an entity.\n\n157\n\n\x0cadministrative mechanisms. Accordingly, we conclude that the second indica\xc2\xad\ntor relied on in Chadha, that a court may presume a provision severable if what\nremains after severance is fully operative as law, is fulfilled in the present instance.5\nIII. Legislative History\nBecause the statutory mechanism in \xc2\xa7\xc2\xa7 761-767 is operable absent the\nlegislative review provisions in \xc2\xa7 761(a)(3) and \xc2\xa7 767(d), and because the\nstatute contains a severability clause, the Secretary is presumed to have author\xc2\xad\nity under \xc2\xa7\xc2\xa7761 and 765-767 to sell Conrail as an entity or by sale of assets\nunless the legislative history rebuts the presumption that Congress would have\nwished the Secretary to exercise this authority without the opportunity for\ncongressional veto. Although nothing in the legislative history definitively\nindicates what Congress would have done had it known it could not rely on the\nlegislative veto provisions, we believe that the legislative history, taken as a\nwhole, suggests that Congress would have wanted the Secretary to exercise the\nsale authority even without the legislative vetoes. More significantly, similar to\nthe situation in Chadha, the legislative history is not sufficient to rebut the\npresumption of severability because there is no compelling evidence that\nCongress would have refused to grant the sale authority to the Secretary. See\n462 U.S. at 932.\nPrior to the Omnibus Budget Reconciliation Act, legislation was introduced\nin both the House and Senate to improve rail service in the Northeast, to\nrestructure and render profitable Conrail\xe2\x80\x99s operations, and to provide for the\nsale of Conrail to the private sector. See S. Rep. No. 101, 97th Cong., 1st Sess.\n(1981) (S. 1100, providing for transfer of Conrail by sale of assets to private\nsector railroads); H.R. Rep. No. 153, 97th Cong., 1st Sess. (1981) (H.R. 3559,\nproviding for sale of common stock of Conrail if profitable and sale of assets if\nnot profitable). H.R. 3559 and the report thereon were incorporated in the\nHouse Report on the Omnibus Budget Reconciliation Act of 1981. See H.R.\nRep. No. 158, Vol. II, 97th Cong., 2d Sess.~438 (1981). S. 1100, to the extent it\nis reflected in the Senate amendments to the House Report, was considerably\naltered during consideration of the Omnibus Budget Reconciliation bill, largely\nto express congressional intent \xe2\x80\x9cthat to the extent practicable, the Secretary\nshall make every effort to transfer Conrail as a single entity.\xe2\x80\x9d S. Rep. No. 139,\n97th Cong., 2d Sess. 328 (1981). At all stages, however, the legislative history\nreveals a strong, indeed urgent, congressional intent to achieve fundamental\nchanges in the efficiency and cost structure of Conrail and, most importantly,\nto provide for the orderly sale o f Conrail either as an entity, if feasible, or by\n5 In treating the operability o f a statute a fte r excision o f an unconstitutional provision from it as creating a\n\xe2\x80\x9cpresum ption" o f severability, the Court in Chadha w ent beyond its decision in Champlin, 286 U.S. 210\n(1932), in w hich a \xe2\x80\x9cpresum ption\xe2\x80\x9d was c re ated only by the existence o f a severability clause in the statute\nbefore it. In B uckley v. Valeo, 424 U.S. 1, 1 0 8 -0 9 (1976), the Supreme C ourt dealt w ith a statute that did not\ncontain a sev erab ility clause and found an unconstitutional provision in that statute to be severable by relying\non the fact th at the statutory scheme w as fully functional; the C ourt did not, however, use the word\n\xe2\x80\x9cpresu m p tio n \xe2\x80\x9d in Buckley.\n\n158\n\n\x0csale of assets. See S. Rep. No. 101,97th Cong., 1st Sess. 2-3 (1981); H.R. Rep.\nNo. 153, 97th Cong., 1st Sess. 205 (1981). Congress made clear that \xe2\x80\x9cthe\npurpose of the legislation is to remove the federal government from the rail\nfreight business.\xe2\x80\x9d Id. at 2. If the legislative veto is regarded as inseverable,\nhowever, the Secretary\xe2\x80\x99s authority to sell Conrail is invalid and the major\nobjective of the legislation would be frustrated. Given the choice between\ncontinuing the Secretary\xe2\x80\x99s authority to sell Conrail or denying the Secretary\nauthority to undertake any sale plans, it is probable that Congress would have\nopted for continuation of the existing method for eliminating federal involve\xc2\xad\nment with rail freight service.\nMore important, nothing in the legislative history indicates that Congress\nwould not have delegated the sale authority to the Secretary but for the\nexistence of the invalid legislative veto device. The House bill delegated\n\xe2\x80\x9cbroad authority,\xe2\x80\x9d 127 Cong. Rec. 19503 (1981), \xe2\x80\x9cmuch latitude,\xe2\x80\x9d H.R. Rep.\nNo. 153, 97th Cong., 1st Sess. 8 (1981), to the Secretary to sell the common\nstock of Conrail and to transfer Conrail assets, without linking that broad\nauthority to the existence of the legislative vetoes.6 Indeed, the Secretary\xe2\x80\x99s\nauthority to sell the common stock of Conrail was not subject to any congres\xc2\xad\nsional review. See id. at 61. Although the House bill qualified the Secretary\xe2\x80\x99s\nauthority to sell Conrail by sale of assets with a provision for a one-House veto\nwithin 90 days of submission of the transfer plan, neither the House Report nor\nthe additional comments on the House bill in the House Conference Report in\nany way indicate that such authority was granted only in light of the veto\nprovision. To the contrary, the Reports simply describe the working of the\ncongressional review provision, but fail to mention, much less emphasize, the\nsignificance of the legislative veto device. See Consumer Energy Council v.\nFERC, 673 F.2d at 442 (severability argument aided insofar as Conference\nReport fails to stress importance of legislative veto provision).\nThe Senate Amendment set forth more elaborate procedures for public\ncomment and notification of Congress with respect to freight transfer agree\xc2\xad\nments. Congress had 120 days within which to disapprove the transfer agree\xc2\xad\nments by concurrent resolution. In addition, the ICC and the Attorney General\nwere to report to Congress on the aggregate of transfer agreements negotiated\nby the Secretary \xe2\x80\x9cto provide assistance to Congress in its deliberations.\xe2\x80\x9d S.\nRep. No. 139, 97th Cong., 1st Sess. 330 (1981). Although these provisions\nsuggest that Congress intended to retain the ability to engage in a meaningful\nreview of the transfer agreements, the Senate Committee Report did not regard\nthe Secretary\xe2\x80\x99s sale authority as inextricably bound to this invalid legislative\nreview provision. Moreover, the period for congressional review was reduced\nto 60 days in the Conference substitute. See 127 Cong. Rec. 19505 (1981). In\naddition, although the final House Conference Report summarily describes the\n6 As explained in the House Conference Report, the provisions o f the subtitle of the Omnibus Budget\nReconciliation A ct that involve C onrail, as they appear in the conference substitute, and the corresponding\nprovisions o f the H ouse bill and Senate amendment, are discussed in an explanatory statem ent printed in the\nCongressional R ecord. See H.R. Conf. Rep. No. 2 0 8 ,97th Cong., 1st Sess. 368-69 (1981).\n\n159\n\n\x0cshortened 60-day period for congressional review of asset sales, it fails alto\xc2\xad\ngether to mention the provision for congressional review of a stock sale. See id.\nThis lack of emphasis on the importance of the legislative veto provisions\nindicates that Congress did not regard the provisions as essential to, or\ninseverable from, the statutory scheme for the sale of Conrail. See Consumer\nEnergy Council v. FERC, 673 F.2d at 442.\nFinally, we note that the leadership of the House Committee on Energy and\nCommerce and of the Subcommittee on Transportation has initiated legislation\nto replace the legislative veto provisions in \xc2\xa7\xc2\xa7 761(a)(3) and 767(d) with a\nrequirement that any sale plan be enacted into law in conformity with the\nArticle I procedures governing the exercise of legislative authority. You have\nalso informed us that the informal view of some Committee staff members is\nthat the Secretary\xe2\x80\x99s authority to arrange for the sale of Conrail is invalid\nbecause the unconstitutional vetoes in \xc2\xa7\xc2\xa7 761(a)(3) and 767(d) are inseverable\nfrom the remaining statutory sale authority. As a general matter, \xe2\x80\x9cpostenactment\ndevelopments cannot be accorded \xe2\x80\x98the weight of contemporary legislative\nhistory.\xe2\x80\x99\xe2\x80\x9d N orth Haven Bd. o f Education v. Bell, 456 U.S. 512,535 (1982). And\nthe normal hesitancy of the courts to attach much weight to comments made\nafter the passage of legislation, see County o f Washington v. Gunther, 452 U.S.\n161, 176 n.16 (1981), is necessarily reinforced when those comments are the\ninformal views of staff members. Similarly, we do not accord such informal\npostenactment comments any weight in our assessment of what the 97th\nCongress would have intended in the absence of the legislative review provi\xc2\xad\nsions. See id. It is significant, however, that the Secretary\xe2\x80\x99s basic authority to\narrange for the sale of Conrail stock or to negotiate for transfers of its assets\nwould be preserved under the proposed amendment. To the extent the proposed\namendment indicates anything about Congress\xe2\x80\x99 choice between refusing to\ngrant the Secretary any authority to engage in the sale of Conrail or authorizing\nthe Secretary to continue to pursue the effort to remove the federal government\nfrom subsidizing and running rail freight service, it is supportive of our conclu\xc2\xad\nsion that Congress would have desired that the Secretary retain the authority to\nsell Conrail.\nIV. Comclnisnoini\n\nIn sum, the legislative history provides insufficient evidence to rebut the\npresumption of severability created by the presence of a severability clause and\nthe existence, after severance, o f a \xe2\x80\x9cfully operative\xe2\x80\x9d law and workable adminis\xc2\xad\ntrative machinery. We therefore conclude that although the two-House disap\xc2\xad\nproval mechanism contained in \xc2\xa7 761(a)(3) and the one-House disapproval\ndevice set forth in \xc2\xa7 767(d) are unconstitutional, the Secretary retains authority\nunder the remaining provisions in \xc2\xa7\xc2\xa7 761-767 to sell Conrail as an entity or by\nsale of assets. The Secretary is still required, under \xc2\xa7 761(a)(2), to submit to\nCongress, 60 days prior to its effective date, a plan for the sale of the United\nStates\xe2\x80\x99s stock interest in Conrail; we would also, under the reasoning in\n160\n\n\x0cChadha, read the remaining, valid portion of \xc2\xa7 767(d) to require the Secretary\nto transmit copies of any freight transfer agreements to Congress within ten\ndays of their approval. Congress would then have the opportunity to overrule\nthe Secretary\xe2\x80\x99s actions, but only by legislative action that conforms with the\nbicameralism and presentment to the President requirements of Article I, \xc2\xa7 7,\nels. 2 & 3 of the Constitution.\nR alph W . T arr\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n161\n\n\x0c'


b'(Slip Opinion)\n\nResponsibility for Electronic Presidential Records\non Hardware of the Executive Office of the\nPresident After a Presidential Transition\nUnder the Presidential Records Act, the Archivist of the United States assumes responsibility for the custody and control of, and access to, an outgoing President\xe2\x80\x99s electronic\npresidential records that temporarily remain on Executive Office of the President\nhardware after the end of the outgoing President\xe2\x80\x99s term.\nJanuary 15, 2021\n\nMEMORANDUM OPINION FOR THE\nDEPUTY COUNSEL TO THE PRESIDENT\nThe Presidential Records Act of 1978 (\xe2\x80\x9cPRA\xe2\x80\x9d) provides that, \xe2\x80\x9c[u]pon\nthe conclusion of a President\xe2\x80\x99s term of office,\xe2\x80\x9d \xe2\x80\x9cthe Archivist of the\nUnited States shall assume responsibility for the custody, control, and\npreservation of, and access to, the Presidential records of that President.\xe2\x80\x9d\n44 U.S.C. \xc2\xa7 2203(g)(1). You have asked whether the Archivist of the\nUnited States (\xe2\x80\x9cArchivist\xe2\x80\x9d) assumes responsibility for electronic presidential records that temporarily remain on Executive Office of the President\n(\xe2\x80\x9cEOP\xe2\x80\x9d) data-storage devices and cloud storage (\xe2\x80\x9cEOP hardware\xe2\x80\x9d) after a\npresidential transition. Consistent with the Archivist\xe2\x80\x99s and the EOP\xe2\x80\x99s\nlongstanding interpretation and practice, we conclude that the Archivist,\nnot the EOP, has responsibility for the custody and control of, and access\nto, such records. Nothing in the PRA purports to eliminate these records\xe2\x80\x99\nstatus as presidential records subject to the PRA merely because the\nrecords or duplicates of them remain on EOP hardware pending the completion of their transfer to the National Archives and Records Administration (\xe2\x80\x9cNARA\xe2\x80\x9d). Accordingly, the PRA will govern access to and disclosure of the outgoing President\xe2\x80\x99s electronic presidential records beginning\nat noon on January 20, 2021, even if they temporarily remain on EOP\nhardware after that time. *\n\n* In considering this question, we consulted with the General Counsel of NARA. See\nE-mail for Devin A. DeBacker, Deputy Assistant Attorney General, Office of Legal\nCounsel, from Gary M. Stern, General Counsel, National Archives and Records Administration (Dec. 2, 2020, 11:09 AM).\n\n1\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nI.\nCongress enacted the PRA in 1978 to ensure the preservation of and\npublic access to the official records of the President. See Presidential\nRecords Act of 1978, Pub. L. No. 95-591, 92 Stat. 2523 (codified as\namended at 44 U.S.C. \xc2\xa7\xc2\xa7 2201\xe2\x80\x932209); see generally Nixon v. Adm\xe2\x80\x99r of\nGen. Servs., 433 U.S. 425, 445\xe2\x80\x9346 (1977) (rejecting separation of powers\nchallenge to statute directing the Administrator of General Services to\ntake control of certain records of former President Nixon); Letter for\nJames T. McIntyre, Director, Office of Management and Budget, from\nPatricia M. Wald, Assistant Attorney General, Office of Legislative\nAffairs at 4 (Feb. 3, 1978) (observing that \xe2\x80\x9c[a] decision to place Presidential materials in the hands of the Archivist of the United States seems to\ngo no further in impinging upon other constitutional principles than was\nsanctioned by the Supreme Court\xe2\x80\x9d in Nixon). The Act defines \xe2\x80\x9cPresidential records\xe2\x80\x9d to include:\ndocumentary materials, or any reasonably segregable portion thereof, created or received by the President, the President\xe2\x80\x99s immediate\nstaff, or a unit or individual of the Executive Office of the President\nwhose function is to advise or assist the President, in the course of\nconducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.\n44 U.S.C. \xc2\xa7 2201(2). The PRA provides for public ownership of such\nrecords, id. \xc2\xa7 2202, and sets forth detailed procedures governing the\nretention of and access to those records, id. \xc2\xa7\xc2\xa7 2203\xe2\x80\x932205.\nThe PRA also addresses the custody of presidential records upon a\npresidential transition. Before the transition, the President has exclusive\nresponsibility for the custody and control of presidential records. Even if\nthe President physically transfers presidential records to NARA during his\nAdministration, the PRA states that this \xe2\x80\x9cexclusive[] responsib[ility]\xe2\x80\x9d is\nunaffected. Id. \xc2\xa7 2203(f ). At the end of the President\xe2\x80\x99s term, however, the\nPRA provides that the Archivist \xe2\x80\x9cshall assume responsibility for the\ncustody, control, and preservation of, and access to, the Presidential\nrecords of that President.\xe2\x80\x9d Id. \xc2\xa7 2203(g)(1). The Archivist must then\n\xe2\x80\x9cdeposit all such Presidential records in a Presidential archival depository\xe2\x80\x9d and may designate, upon consultation with the former President, an\n2\n\n\x0cElectronic Presidential Records After a Presidential Transition\n\nindividual to be \xe2\x80\x9cresponsible for the care and preservation of such records.\xe2\x80\x9d Id. \xc2\xa7 2203(g)(2).\nWe understand from NARA that the three previous presidential transitions each involved a lengthy process for the EOP to complete the transfer\nof the outgoing President\xe2\x80\x99s electronic presidential records to NARA. In\ntwo of the previous three transitions, a substantial quantity of the outgoing\nPresident\xe2\x80\x99s electronic presidential records temporarily remained on EOP\nhardware for months after the incoming President took office until the\ntransfer of those records to NARA was complete. As we understand the\nprocess, NARA first receives copies of the outgoing President\xe2\x80\x99s electronic\nrecords. Once NARA validates that it has a complete copy of the outgoing\nPresident\xe2\x80\x99s electronic records, NARA instructs the EOP to delete the\nelectronic records from EOP hardware, leaving NARA with the sole\nremaining copy. Cf. 36 C.F.R. \xc2\xa7 1235.44(a) (\xe2\x80\x9cEach agency must retain a\ncopy of permanent electronic records that it transfers to NARA until it\nreceives official notification that NARA has assumed responsibility for\ncontinuing preservation of the records.\xe2\x80\x9d). At that point, the transfer of\nthose records to NARA is complete.\nYou have asked whether the Archivist has responsibility for custody\nand control of, and access to, the outgoing President\xe2\x80\x99s electronic records,\neven if such records temporarily remain on EOP hardware until the completion of their transfer to NARA. If the Archivist does have responsibility during that period for those records, then the PRA would govern\naccess to and disclosure of the records, including the incoming President\xe2\x80\x99s\naccess to the records. See, e.g., 44 U.S.C. \xc2\xa7 2205(2)(B).\nII.\nConsistent with NARA\xe2\x80\x99s longstanding view and practice, we conclude\nthat the Archivist assumes custody and control of electronic presidential\nrecords of an outgoing President that remain on EOP hardware after the\nend of the outgoing President\xe2\x80\x99s term. The electronic EOP records are\n\xe2\x80\x9cPresidential records\xe2\x80\x9d governed by the PRA at the time they are created.\nSee 44 U.S.C. \xc2\xa7 2201(2) (defining \xe2\x80\x9cPresidential records\xe2\x80\x9d to include \xe2\x80\x9cdocumentary materials\xe2\x80\x9d created or received in the course of conducting\nofficial EOP activities). Nothing in the PRA eliminates their status as\n\xe2\x80\x9cPresidential records\xe2\x80\x9d subject to the PRA, or makes them presidential\nrecords of the incoming Administration, merely because they remain\ntemporarily on EOP hardware following the change in Administrations.\n3\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nAlthough the definition of \xe2\x80\x9cPresidential records\xe2\x80\x9d excludes \xe2\x80\x9cextra copies\nof documents produced only for convenience of reference, when such\ncopies are clearly so identified,\xe2\x80\x9d id. \xc2\xa7 2201(2)(B), that exception does not\ntransform electronic presidential records into non-presidential records just\nbecause copies of them have been transferred to NARA for their permanent retention. The document duplicates remaining on EOP hardware\nwere the original presidential records produced in the ordinary course of\nthe EOP\xe2\x80\x99s activities, not copies \xe2\x80\x9cproduced only for convenience of reference\xe2\x80\x9d that are \xe2\x80\x9cclearly so identified.\xe2\x80\x9d Id. Indeed, if the temporary duplicates were mere convenience copies, then they would not constitute\n\xe2\x80\x9cPresidential records\xe2\x80\x9d that have to be maintained under the PRA and\ncould be destroyed before NARA has verified that it has a complete\ncopy\xe2\x80\x94which would obviously frustrate the PRA\xe2\x80\x99s purpose in preserving\nand ensuring access to them. Cf. id. \xc2\xa7 2202 (\xe2\x80\x9cThe United States shall\nreserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with\nthe provisions of this chapter.\xe2\x80\x9d).\nThis interpretation of the PRA is consistent with NARA\xe2\x80\x99s and the\nEOP\xe2\x80\x99s longstanding interpretation and administration of the statute with\nrespect to both paper and electronic presidential records. According to\nNARA, EOP personnel have regularly located prior Administrations\xe2\x80\x99\npaper presidential records accidentally left behind within the EOP. When\nthis has happened, EOP personnel have treated them as presidential records subject to the Archivist\xe2\x80\x99s control and promptly transferred them to\nNARA. And NARA and the EOP have previously entered into memoranda of understanding confirming that the Archivist has responsibility for,\nand the PRA continues to govern, an outgoing Administration\xe2\x80\x99s presidential records that remain in EOP custody after the end of the President\xe2\x80\x99s\nterm. See, e.g., Memorandum of Understanding Regarding the Work to\nComplete Transfer of George W. Bush Electronic Records at 2\xe2\x80\x933 (Jan. 16,\n2009), https://www.archives.gov/files/presidential-libraries/laws/access/\nbush-email-restoration.pdf (\xe2\x80\x9cNARA by law shall assume full legal custody of all George W. Bush Administration PRA records at noon January\n20, 2009. . . . Any access to PRA records by [the EOP Office of Administration (\xe2\x80\x9cOA\xe2\x80\x9d)] staff, OA contractors, or any other party shall be controlled exclusively by NARA and shall be governed by the PRA, NARA\nregulations, and Executive Order 13233 (or any successor order). These\n4\n\n\x0cElectronic Presidential Records After a Presidential Transition\n\nrecords shall remain George W. Bush Presidential and Cheney Vice\nPresidential records after 12:00 noon, January 20, 2009, notwithstanding\ntheir physical location or the limited access to them [to facilitate transfer\nto NARA] by OA, OA contractors, or third parties[.]\xe2\x80\x9d).\nThe Archivist therefore will \xe2\x80\x9cassume responsibility\xe2\x80\x9d for the outgoing\nPresident\xe2\x80\x99s electronic presidential records that remain on EOP hardware\n\xe2\x80\x9c[u]pon the conclusion of [the outgoing] President\xe2\x80\x99s term of office,\xe2\x80\x9d 44\nU.S.C. \xc2\xa7 2203(g)(1)\xe2\x80\x94at noon on January 20, 2021\xe2\x80\x94except to the extent\nthat convenience copies are provided to the incoming Administration by\nthe outgoing Administration, see id. \xc2\xa7 2201(2)(B). Even though electronic\npresidential records will temporarily remain physically situated on EOP\nproperty, the Archivist will have legal responsibility for the \xe2\x80\x9ccustody,\ncontrol, and preservation of, and access to\xe2\x80\x9d the records, id. \xc2\xa7 2203(g)(1),\njust as the President can have responsibility for certain records in NARA\xe2\x80\x99s possession under 44 U.S.C. \xc2\xa7 2203(f ). Consequently, the incoming\nAdministration\xe2\x80\x99s access to electronic presidential records of the outgoing\nAdministration will be subject to the Archivist\xe2\x80\x99s general control and the\nPRA\xe2\x80\x99s provisions. For instance, with respect to specific records over\nwhich the outgoing President has restricted access, see id. \xc2\xa7 2204, the\nrecords will be made available to the incoming President \xe2\x80\x9cif such records\ncontain information that is needed for the conduct of current business of\nthe incumbent President\xe2\x80\x99s office and that is not otherwise available,\xe2\x80\x9d id.\n\xc2\xa7 2205(2)(B). The incumbent President would need to request access to\nsuch records from NARA notwithstanding the fact that they remain physically present on EOP property. NARA would then notify the former\nPresident of the Archivist\xe2\x80\x99s intent to disclose the records, and the former\nPresident could assert a claim of constitutionally based privilege, subject\nto the incumbent President\xe2\x80\x99s determination whether to uphold that privilege. See 36 C.F.R. \xc2\xa7 1270.44; Exec. Order No. 13,489, \xc2\xa7 4 (Jan. 21,\n2009), 74 Fed. Reg. 4669, 4670 (Jan. 26, 2009).\nIII.\nFor these reasons, we conclude that the Archivist, not the EOP, has \xe2\x80\x9cresponsibility\xe2\x80\x9d for the custody and control of, and access to, an outgoing\nPresident\xe2\x80\x99s electronic records under the PRA, even if such records physi-\n\n5\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\ncally remain on EOP hardware at the conclusion of the outgoing President\xe2\x80\x99s term. 44 U.S.C. \xc2\xa7 2203(g)(1).\nDEVIN A. DEBACKER\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n6\n\n\x0c'