b'Proposed Cooperative Agreement for the Administration of the\nSan Antonio Missions National Historical Park\nThe proposed cooperative agreem ent between the Secretary of the Interior and the A rchbishop of San\nA ntonio, fo r the adm inistration o f church-ow ned properties w ithin the San A ntonio M issions\nNational H istorical Park, does not on its face present such a risk of advancing religion or involving\nthe governm ent in an entangling relationship w ith the church, in violation of the E stablishm ent\nClause of the First A m endm ent, that it may not be executed.\nAny federal funds to be expended under the agreem ent would not relieve the church of any obligation\nit would otherw ise have, or confer any recognizable benefit on the church, and thus could not be\nsaid to \xe2\x80\x9cadvance\xe2\x80\x9d religion within the m eaning of the test set forth in Lemon v. Kurtzman, 403 U .S .\n602, 6 1 2 -1 3 (1971). N or is the extent of the federal presence at the M issions contem plated by the\nproposed agreem ent likely to confer any im prim atur o f governm ent approval on a religious sect or\npractice, o r com m it the governm ent to religious goals.\n\nDecember 2, 1982\nMEMORANDUM OPINION FOR THE SOLICITOR OF THE INTERIOR\nThis responds to your request for our opinion whether a proposed agreement\nbetween the Secretary of the Interior and the Archbishop of San Antonio, as\nowner of the Spanish Missions of San Antonio, violates constitutional provisions\nregarding the separation of church and state. This agreement, dated May 5,1982,\nwas developed pursuant to the authority given the Secretary in \xc2\xa7 201 of Pub. L.\nNo. 95-629, 92 Stat. 3636 (1978), 16 U.S.C. \xc2\xa7 410ee (Supp. II 1978) (Act),\nwhich established the San Antonio Missions National Historical ftr k (ftirk).\nSection 201(b) of the Act authorizes the Secretary to acquire certain historic\nproperties within the established boundaries of the Park, and to enter into\n\xe2\x80\x9ccooperative agreements\xe2\x80\x9d with the owners of those properties \xe2\x80\x9cin furtherance of\nthe purposes of [the Act].\xe2\x80\x9d In apparent recognition of the possible issues under\nthe Establishment Clause of the First Amendment which might be raised by\ncooperative agreements relating to the administration of properties within the\nPark, \xc2\xa7 201(b) of the Act also specifies that:\nthe Secretary shall submit all proposed cooperative agreements to\nthe Department of Justice for a determination that the proposed\nagreements do not violate the constitutional provisions regarding\nthe separation of church and state.\nWe have reviewed the terms of the proposed cooperative agreement in light of\nadditional factual information provided us by members of your staff and by the\n717\n\n\x0cSuperintendent of the Plark in San Antonio, and find no basis on which to object to\nits execution on Establishment Clause grounds.\nIn the following discussion we briefly review the history of the Missions and\ntheir present-day function and operation, and describe the relevant provisions of\nthe proposed cooperative agreement. We then analyze the agreement in terms of\napplicable principles of constitutional law.\n\nI.\nThe San Antonio Missions National Historical Park was established in 1978\n\xe2\x80\x9c[i]n order to provide for the preservation, restoration and interpretation of the\nSpanish Missions of San Antonio, Texas, for the benefit and enjoyment of present\nand future generations of Americans . . . .\xe2\x80\x9d 16 U.S.C. \xc2\xa7 410ee(a). The Park\nconsists of four 18th century Spanish missions located on alternate sides of the\nSan Antonio River as it flows through the southern part of the city,1 and an\nassociated irrigation system which includes an 18th century aqueduct and dam.\nThe Missions contain within their walled compounds a variety of structures\nwhich reflect the institution\xe2\x80\x99s several historic functions.2\nIn addition to a church and associated buildings, three of the four Missions\ninclude some portion of the land and many of the non-religious structures which\nwere once enclosed by the mission walls. These structures, in varying states of\ndisrepair and decay, include granaries, shops, schools, kilns, and living quarters\nfor the Indians whom the missionaries sought to convert and \xe2\x80\x9ccivilize.\xe2\x80\x9d All that\nremains of Mission Concepcion, the closest of these Missions to downtown San\nAntonio, is a church and \xe2\x80\x9cconvento,\xe2\x80\x9d which historically contained the priest\xe2\x80\x99s\nliving quarters, offices, a refectory, and sometimes shops and workrooms.\nOwnership of the land and structures within the present boundaries of the\nMissions has remained in the hands of the Roman Catholic Archdiocese of San\nAntonio. And, at each of the four Missions there is an active parish church which\nis used today for a variety of religious and ceremonial purposes. Between 500 and\n900 families are served by each of the Mission parishes. None of the Mission\nparishes has a community hall, an adult education program, or any other regular\nparish activity beyond the weekly religious services themselves. Except for a\nparish priest who occupies living quarters within the compound at two of the\nMissions, there are no religious or other church personnel in residence or\nregularly present at any of the four Missions.\nAll four of the Missions are separately listed on the National Register of\nHistoric Places, 16 U.S.C. \xc2\xa7 470a, and are open to the sightseeing public.\n1The four M issions are described in \xc2\xa7 201(a) of ihe Act as \xe2\x80\x9cConcepcion, San Jose, San Juan, and Espada "S ee\n16 U S C. \xc2\xa7 410ee(a). We use these shortened versions of the full names whenever we refer separately in this\nmemorandum to one of the Missions\n2 According to an \xe2\x80\x9cEnvironmental Assessment\xe2\x80\x9d prepared by the National fork Service in October 1981, the\nSpanish missions in the Southwest were originally established both as religious institutions and as fortresses by\nwhich the Spanish extended and defended their frontiers in the Western Hemisphere. The Missions prospered and\ndeclined over a period o f about 60 years, and by the early 19th century had ceased to operate as an arm of the Spanish\ngovernment. Since that time, the San Antonio Missions have experienced neglect and decay despite their recognized\nhistoric and architectural significance. Notable among the sporadic attempts to preserve and reconstruct them in the\nlast century are those of the federal Works Project Administration dunng the 1930s.\n\n718\n\n\x0cMission San Jose has the most extensive interpretive program, and under a 1941\nagreement is administered jointly by the Texas Parks and Wildlife Department\nand the Archdiocese of San Antonio.3The three other Missions are administered\nby the Archdiocese alone, and at each an informational leaflet is made available\nby the Archdiocese to complement a self-guided tour. Other than the limited state\nfunds which have been made available for upkeep and maintenance at Mission\nSan Jose, the Archdiocese is now solely responsible for the cost of preserving and\nmaintaining the Missions.\nII.\nThe proposed cooperative agreement between the Secretary and the Arch\xc2\xad\nbishop, negotiated by the Secretary pursuant to the authority given him in\n\xc2\xa7 201(b) of the Act,4 contemplates a comparatively limited federal financial\ncommitment to the Park.5 Ownership of the Missions remains with the Catholic\nChurch, as does responsibility for their \xe2\x80\x9coverall maintenance, repair and se\xc2\xad\ncurity.\xe2\x80\x9d The Secretary is authorized by the Archbishop to \xe2\x80\x9cprovide public\ninterpretation of the Missions\xe2\x80\x99 secular historical significance in the development\nof the Southwest Region of the United States.\xe2\x80\x9d In furtherance of this purpose, the\nSecretary is given free access to the Mission grounds and \xe2\x80\x9csecular Mission\nbuildings,\xe2\x80\x9d6 the use of the latter for administrative purposes, and authority to\nerect \xe2\x80\x9cinformational and interpretive signs and exhibits on the Missions\ngrounds.\xe2\x80\x9d The Secretary in turn undertakes to provide \xe2\x80\x9cwear and tear mainte\xc2\xad\nnance and repair of the Missions grounds and secular buildings as occasioned by\nthe use of the property for [Park] purposes,\xe2\x80\x9d and \xe2\x80\x9csuch security of the Missions\ngrounds and secular buildings as is appropriate in light of the hours of public\naccess.\xe2\x80\x9d He agrees also to pay the cost of utilities occasioned by Park use. Finally,\n3 The Secretary of the Interior was also a party to the 1941 agreement by which the Slate of Texas undertook to\nassist the Catholic Archdiocese in its maintenance and administration of the San Jose Mission In that agreement, the\nSecretary agreed to designate Mission San Jose as a National Historic Site, to \xe2\x80\x9ccooperate\xe2\x80\x9d with the Archbishop and\nthe state in the \xe2\x80\x9cpreservation and use" of the Mission as a historic site, and to \xe2\x80\x9cprovide technical assistance in\nplanning and executing measures for such preservation and use, within the limits of available appropriations.\xe2\x80\x9d We\nhave been informed by members of your staff that no appropriated funds have ever been allocated by the Secretary of\nthe Interior pursuant to the 1941 agreement. We do not know whether federal funds have otherwise been made\navailable in the past for the preservation and use of the Missions. See, e.g ., 16 U S C. \xc2\xa7 470a(a), which authorizes\nthe Secretary of the Interior to make grants to states for the development and preservation of properties listed on the\nNational Register of Historic Places.\n4 Section 201(b) of the 1978 Act authorized the Secretary of the Intenor \xe2\x80\x9cto enter cooperative agreements with the\nowners of any historic properties\xe2\x80\x9d within the boundaries of the fork, including the four Missions themselves, \xe2\x80\x9c in\nfurtherance of the purposes of[the A ct].\xe2\x80\x9d I6 U .S .C .\xc2\xa7 410ee(b)(2) Each such cooperative agreement was to include\nterms obligating the owner of the property to preserve its historic features, and to allow the public \xe2\x80\x9creasonable access\nto those portions o f the property to which access is necessary in the judgment of the Secretary for the proper\nappreciation and interpretation of its histoncal and architectural value \xe2\x80\x9d 16 U S C. \xc2\xa7 410ee(b). In addition, the\nSecretary was authonzed to agree to maintain and operate such interpretive facilities and programs on the land as he\ndeemed appropnate. Id. Whatever funds are necessary for the administration of the fork may be allocated by the\nSecretary from the general appropriation for the National F^rk System, pursuant to the authority contained in 16\nU S.C \xc2\xa7 3 et seq.\n5 The agreement is descnbed in its preamble as \xe2\x80\x9can interim means to further the purposes of the Act pending\nconsideration of related budgetary and legal issues by the Secretary.\xe2\x80\x9d\n6 \xe2\x80\x9cSecular Mission buildings\xe2\x80\x9d are identified in an exhibit appended to the agreement, and comprise all structures\nwithin the Mission compound except the present-day church and, in the case of Missions San Juan and Espada, the\nnearby pastor\xe2\x80\x99s residence.\n\n719\n\n\x0cthe Secretary must not \xe2\x80\x9cundertake any actions or activities which disturb the\nstructural integrity and condition of the Missions or the Archbishop\xe2\x80\x99s use of the\nMissions for religious or other church purposes . . .\nThe agreement allows the Archbishop unconditionally to continue the \xe2\x80\x9ceccle\xc2\xad\nsiastical use\xe2\x80\x9d of the Missions. However, he must not alter or remove any of the\nMissions\xe2\x80\x99 historic features, or erect any markers or structures on their premises\n\xe2\x80\x9cwithout the prior concurrence of the Secretary.\xe2\x80\x9d While Park visitors may be\npermitted to enter non-secular buildings within the compound without charge,\nthe Secretary assumes no responsibility for the maintenance of those buildings.\nIn addition, the agreement expressly provides that\nThe Secretary shall not participate in any activities conducted by\nthe Archbishop within non-secular buildings of the Missions nor\nshall he participate in any religious or other church uses of the\nMission grounds.7\nThe agreement may be amended at any time by mutual agreement, and\nterminated by either party upon 60 days\xe2\x80\x99 written notice. At the expiration or\ntermination of the agreement, the Secretary agrees to \xe2\x80\x9cremove all property of the\nUnited States from the Mission at his expense.\xe2\x80\x9d8\n\nIII.\nThe general test for determining whether a legislative enactment violates the\nEstablishment Clause was set forth by the Supreme Court in Lemon v. Kurtzman,\n403 U.S. 602 , 612-13 (1971):\nFirst, the statute must have a secular legislative purpose; second,\nits principal or primary effect must be one that neither advances\nnor inhibits religion . . .; finally, the statute must not foster \xe2\x80\x9can\nexcessive government entanglement with religion.\xe2\x80\x9d\nSee Com m ittee fo r Public Education v. Regan, 444 U.S. 646 (1980). This three-\n\npart test is equally applicable to governmental actions and policies based on a\nlegislative enactment, such as the execution and administration of the cooperative\nagreement at issue here. See Widmar v. Vincent, 454 U.S. 263 (1981); Allen v.\nM orton, 495 F.2d 65, 68 (D.C. Cir. 1973).\nWe agree readily with your opinion that the agreement satisfies the \xe2\x80\x9csecular\npurpose\xe2\x80\x9d aspect of the Lemon test. The stated purpose of the Secretary, in\nentering into the cooperative agreement, is \xe2\x80\x9cto provide public interpretation of\nthe Missions\xe2\x80\x99 secular historical significance in the development of the Southwest\n7 The Archbishop agrees to provide ihe Secretary reasonable notice of ail religious and other church use of the\nM issions, and to hold the Secretary harmless against all damage claims by persons \xe2\x80\x9cattending a religious service or\nother church activity conducted by the Archbishop.\xe2\x80\x9d\n8 The proposed cooperative agreement also suspends for the penod of its duration the 1941 agreement between\nthe Secretary, the Archbishop, and the-state. See note 6, supra.\n\n720\n\n\x0cRegion of the United States . . . This secular purpose is consistent with that of\nCongress in establishing the Park.9\nWe also concur with your view that the \xe2\x80\x9cprincipal or primary effect\xe2\x80\x9d of the\nagreement is not one which \xe2\x80\x9cadvances [or] inhibits religion.\xe2\x80\x9d It is true that, in\nconstruing this aspect of the Lemon test, the Supreme Court has disapproved the\nuse of public funds to provide support to sectarian institutions even where the\nfunds have themselves been earmarked exclusively for \xe2\x80\x9csecular\xe2\x80\x9d purposes, on the\ngrounds that \xe2\x80\x9cin aiding a religious institution to perform a secular task, the\n[government] frees the institution\xe2\x80\x99s resources to be put to sectarian ends.\xe2\x80\x9d\nRoemer v. B oard c f Public Works c f Maryland, 426 U.S. 736, 748 (1976).10 In\nthis case, however, no federal funds are to be provided directly to either the\nArchdiocese or the parish churches within the Mission walls, and no expenditure\nis authorized which would indirectly relieve either of any obligation it would\notherwise have. Indeed, it would appear that federal funds expended under the\nagreement will not confer any recognizable benefit on the Archdiocese or parish\nchurches. While the legislation which established the Park authorizes a more\nextensive use of federal funds in connection with the restoration and rehabilita\xc2\xad\ntion of the Missions, the cooperative agreement explicitly limits.the federal\nfinancial commitment to such \xe2\x80\x9cwear and tear maintenance\xe2\x80\x9d and \xe2\x80\x9csecurity\xe2\x80\x9d as is\noccasioned by the use of the Missions as a National Park. Given the almost\ncertain need for additional maintenance occasioned by this use, we do not believe\nan agreement by the federal government to pay its cost could be regarded as\nconferring a benefit on or otherwise advancing the interests of a religious\ninstitution.11\nIt is of course possible to argue that the very presence of a national park at the\nMissions will have some tendency to \xe2\x80\x9cadvance religion\xe2\x80\x9d by enhancing the\nvisibility of and facilitating public access to religious functions, both past and\npresent. However, any such effect is at this point entirely speculative. Even if this\n9 While the introductory phrases of the Act speak generally of the \xe2\x80\x9cpreservation, restoration and interpretation" of\nthe Missions, subsequent provisions in the law make clear that Congress\' interest in the Missions was confined to\ntheir \xe2\x80\x9chistorical and architectural value. "S ee 16U.S C \xc2\xa7 4 1Oee(b) and (d). The secular purpose of the legislation is\nconfirmed by its legislative history. See 124 Cong. Rec 36192 (1978) (remarks of Sen. Bentsen) See generally San\nAntonio Missions National Historical Park, Texas: Hearings on H R 14064 Before the Subcomm on National\nParks and Recreation c f the House Comm, on Interior and Insular Affairs, 94th Cong., 2d Sess (1976); San Antonio\nMissions National Historical Park, Texas: Hearings on S. 1156 Before the Subcomm on Parks and Recreation c f the\nSenate Comm, on Energy and Natural Resources, 95th Cong., 1st Sess. (1977) The legislation establishing the\nPark was never reported out of committee in either House or Senate, but was added as a floor amendment in the\nSenate to a bill dealing, inter alia, with the Pennsylvania Avenue Development Corporation See 124 Cong. Rec.\n36183 (Oct. 12, 1978)\n10 Compare M eek v. Pittenger, 421 U S 349 (1975) (state may not provide auxiliary instructional material and\nservices to sectarian schools) and Committee fo r Public Education v. Nyquist, 413 U.S. 756 (1973) (lump sum\ngrants to sectarian schools for building maintenance and repair prohibited); with Wolman v. Walter, 433 U.S. 229\n(1977) (state funds may be used to provide standardized tests and scoring services to sectarian schools) and\nCommittee fo r Public Education v Regan, 444 U.S. at 654 (1980) (state may reimburse sectarian schools for costs\nof state-mandated tests)\n11 If enough federal money were spent in connection with maintenance and security at the Missions, some\nquestion might be raised as to whether a monetary benefit was in fact being conferred on the Archdiocese or\nparishes. However, it is our understanding from discussions with the Superintendent of the Park that the budget\npresently projected for the fark for fiscal 1983 permits an overall commitment to the four Missions of only about\n$125,000 for maintenance, of which about $75,000 would go to pay custodial salaries and another $50,000 to\ncontract for such basic services as trash collection and weed removal Another $12,000 is available for \xe2\x80\x9cnatural\nresource management.\xe2\x80\x9d There is no money in the 1983 budget for \xe2\x80\x9crepairs \xe2\x80\x9d\n\n721\n\n\x0ceffect could at some future point be shown, we doubt that it would be regarded as\n\xe2\x80\x9cprimary,\xe2\x80\x9d as that term has been construed by the Supreme Court. The Court has\n\xe2\x80\x9cput to rest any argument that the [government] may never act in such a way that\nhas the incidental effect of facilitating religious activity.\xe2\x80\x9d Roemer v. B oard cf\nPublic Works c f Maryland, 426 U.S. at 747. And a number of courts have ruled\nthat governmental sponsorship of the secular aspects of religious institutions and\nceremonies does not impermissibly advance religion. See, e .g ., Florey v. Sioux\nFalls School D istrict, 619F.2d 1311 (8th Cir.), cert, denied, 449 U.S. 987 (1980)\n(school board\xe2\x80\x99s adoption of policy permitting observance of religious holidays\ndid not unconstitutionally advance religion); Allen v. Hickel, 424 F.2d 944 (D.C.\nCir. 1970) (government sponsorship of Christmas Pageant of Peace, which\nincluded Nativity creche, did not have primary effect of advancing religion);\nCitizens Concerned v. City and County c f Denver, 526 F. Supp. 1310 (D. Colo.\n1981) (public funds may be used for Nativity scene as part of city\xe2\x80\x99s Christmas\ndisplay). Compare Fox v. City c f Los Angeles, 587 P.2d 663 (Cal. 1978) (display\nof lighted Latin cross on city hall prohibited, on grounds that it impermissibly\nfavored one religion over others). The government\xe2\x80\x99s proposed interpretive pro\xc2\xad\ngram for the Park focuses on the Missions\xe2\x80\x99 historical and architectural aspects;\nany reference to the Missions\xe2\x80\x99 historically religious character is likely to have\n\xe2\x80\x9conly a remote and incidental effect advantageous to [the Catholic Church].\xe2\x80\x9d\nComm ittee fo r Public Education v. Nyquist, supra, 413 U.S. at 784 n. 39. Nor do\nwe think that Park visitors\xe2\x80\x99 access to the active parish churches within the\nMissions will necessarily advance religion in a constitutionally impermissible\nmanner. While sightseers may have an opportunity on their own initiative to enter\nthe non-secular buildings on the Mission grounds, these buildings will not be\nintegrated into the Park\xe2\x80\x99s interpretive program. Nor will Park staff or other\ngovernment officials be permitted to participate in any religious activities in those\nbuildings or on Mission grounds.12\nFinally, the extent of the federal presence at the Missions contemplated by the\ncooperative agreement is not likely to \xe2\x80\x9cconfer any imprimatur of [governmental]\napproval on religious sects or practices,\xe2\x80\x9d or \xe2\x80\x9ccommit the [government] . . . to\nreligious goals.\xe2\x80\x9d Widmar v. Vincent, supra, 454 U.S. at 274. Compare Gilfillan\nv. C ity c f Philadelphia, 637 F.2d 924,930 (3d Cir. 1980) (extensive involvement\nof public officials with religious personnel in planning the Pope\xe2\x80\x99s visit, and\nexpenditure of public funds on altar and loudspeakers, had effect of \xe2\x80\x9cplacing the\nCity\xe2\x80\x99s imprimatur of approval on the Catholic religion\xe2\x80\x9d). Properly administered\nin accordance with the terms of the agreement, the government\xe2\x80\x99s program at the\nPark will be \xe2\x80\x9cconfine[d] . . . to secular objectives, and neither advance nor\nimpede religious activity.\xe2\x80\x9d Roemer v. B oard c f Public Works c f M aryland, 426\nU.S. at 747.\n12 We do not know how extensive the \xe2\x80\x9creligious and other church uses of the Missions grounds\xe2\x80\x9d referred to in the\nagreem ent will be. It is possible that frequent and extensive use of the Mission buildings and grounds for religious\ncerem onies, during hours when they are open to the sightseeing public and staffed by ftirk Service personnel, could\ngive rise to the appearance of an \xe2\x80\x9c imprimatur o f [governmental] approval\xe2\x80\x9d of religious practices generally and those\nof the Catholic Church in particular. Our discussion with members of your staff and the fark Superintendent suggest\nno basis for concern that this will occur\n\n722\n\n\x0cWith regard to the third and last part of the Lemon test, we do not believe that\nthe relationship between the government and the church contemplated by the\nproposed cooperative agreement presents any substantial risk of \xe2\x80\x9cexcessive and\nenduring entanglement between state and church.\xe2\x80\x9d Lemon v. Kurtzman, 403\nU.S. at 619. The Supreme Court has been particularly concerned with the\npotential for state-church entanglement where direct money subsidies to sec\xc2\xad\ntarian institutions are involved. In Lemon the Court remarked that \xe2\x80\x9c [t]he history\nof government grants of a continuing cash subsidy indicates that such programs\nhave almost always been accompanied by varying measures of control and\nsurveillance.\xe2\x80\x9d 403 U.S. at 621. See also Levitt v. Committee fo r Public Educa\xc2\xad\ntion, 413 U.S. 472,480(1973). Here, however, no financial benefit accrues to the\nArchdiocese or the Mission parishes so as to necessitate the kind of prophylactic\nadministrative measures which the Court has found likely to produce excessive\nentanglement. Moreover, the agreement requires no regular or recurring contact\nbetween federal officials and either the Archdiocese or the Mission parishes.\nWhile the agreement does provide that each party should \xe2\x80\x9cappoint a representa\xc2\xad\ntive on site at the Missions to deal with routine Missions management,\xe2\x80\x9d (p. 6)\nthere is no area of joint church-state responsibility which is likely to produce \xe2\x80\x9can\nintimate and continuing relationship\xe2\x80\x9d between these representatives. 403 U .S. at\n622. The agreement gives church officials no role in or authority over the federal\ngovernment\xe2\x80\x99s interpretive or maintenance program at the Missions. At the same\ntime, it expressly prohibits Park officials from participating in any religious or\nother church uses of the Mission buildings or grounds. Compare the extensive\ninvolvement of federal officials in the planning and administration of the Christ\xc2\xad\nmas Pageant of Peace, held unconstitutional on entanglement grounds in Allen v.\nMorton, 495 F.2d 65 (D.C. Cir. 1973). The only provision in the agreement\nwhich seems to require some official contact between governmental and church\nofficials is that which prohibits the Archbishop from altering or removing any of\nthe Mission\xe2\x80\x99s historic features, or erecting markers or structures on their prem\xc2\xad\nises, \xe2\x80\x9cwithout the prior concurrence of the Secretary.\xe2\x80\x9d See supra. While we have\nno doubt that these and other provisions in the agreement will result in some\ncontact from time to time between government and church officials, we do not\nthink the agreement as a whole or any provision of it necessarily leads to the sort\nof \xe2\x80\x9cintimate and continuing relationship\xe2\x80\x9d forbidden by the Supreme Court in\nLem on.\'3\nLemon also recognized a second branch of the entanglement test, the pos\xc2\xad\n\nsibility that governmental action will result in intensified \xe2\x80\x9c[political fragmenta\xc2\xad\ntion and divisiveness on religious lines\xe2\x80\x9d because of \xe2\x80\x9cthe need for continuing\nannual appropriations and the likelihood of larger and larger demands as costs\n13 The mere presence of the parish churches within the Mission grounds need not lead to an entangling\nrelationship. C f Lanner v. Wimmer, 662 F.2d 1349, 1360 (10th Cir. 1981) (physical proximity of buildings and\nshared communications system does not preclude public school from implementing released time program with\nreligious seminary on \xe2\x80\x9centanglement\xe2\x80\x9d grounds) As previously noted, with the exception of the pansh priests in\nresidence at Missions Espada and San Juan, there are no religious personnel regularly present at any of the Mission\nsites. And, we have been informed by the fork Superintendent that the Archdiocese does not contemplate continuing\nany aspect of its own interpretive program at the Missions once the federal program is in place\n\n723\n\n\x0cand populations grow.\xe2\x80\x9d 403 U.S. at 623. However, like the reimbursement\nscheme held constitutional in Committee fo r Public Education v. Regan, supra,\nthe cooperative agreement \xe2\x80\x9c[o]n its face . . . suggests no excessive entangle\xc2\xad\nment, and we are not prepared to read into the [agreement] as an inevitability the\nbad faith upon which any future excessive entanglement would be predicated.\xe2\x80\x9d\n444 U.S. at 660-61.\n\nIV.\nIn summary, the cooperative agreement between the Secretary and the Arch\xc2\xad\nbishop for the administration of the San Antonio Missions as part of the Park does\nnot present such an \xe2\x80\x9cappreciable risk\xe2\x80\x9d of advancing religion or involving the\ngovernment in an impermissible relationship with the church that it may not be\nexecuted. See Committee for Public Education v. Regan, supra, 444 U. S . at 662.\nWe emphasize, however, that while we do not believe the agreement on its face\nviolates the Establishment Clause, the constitutionality of any given church-state\nrelationship depends to some extent on its own particular facts. We therefore\ncannot know in advance whether specific Establishment Clause problems will\narise in connection with the implementation and administration of the agreement.\nWe expect, though, that appropriate precautionary measures can be devised by\nthe Secretary and the National Park Service to minimize the likelihood of such\nproblems occurring.\nR a l p h W . Ta r r\n\nDeputy Assistant Attorney General\nOffice c f Legal Counsel\n\n724\n\n\x0c'


b"Disclosure of Court-Authorized Interceptions of Wire\nCommunications to Congressional Committees\nA n o fficer o f th e D e p a rtm e n t o f Ju stice m ay disclose tapes o f c o u rt-a u th o riz e d in te rc e p \xc2\xad\ntio n s o f w ire co m m u n icatio n s to con g ressio n al co m m ittees w ith o u t a c o u rt o rd e r, as\nlo n g as su ch d isclo su re is a p p ro p ria te to th e p ro p e r p erfo rm an ce o f his official duties.\nG en erally , p ro v id in g C o n g ress w ith in form ation in o rd e r to help facilitate its c o n s titu tio n \xc2\xad\nally m an d ated legislativ e ro le is p a rt o f th e legal o b lig atio n o f th e E x e c u tiv e B ranch;\nh o w e v e r, it is also th e E x e c u tiv e 's responsibility to d e te rm in e w h e n su c h d isc lo su re\nw o u ld im p ed e its p erfo rm an ce o f o th e r responsibilities, an d th u s be in ap p ro p riate.\n\nMay 12, 1980\nMEMORANDUM OPINION FOR TH E ASSISTANT ATTORNEY\nG EN ERA L, CRIM INAL DIVISION\nI am responding to your memorandum concerning the dissemination to the Permanent Subcommittee on Investigations of the Senate Com\xc2\xad\nmittee on Governmental Affairs of tapes of court-authorized intercep\xc2\xad\ntions of wire communications. In a January 9, 1980, letter to Deputy\nAssistant Attorney General Irvin B. Nathan, the subcommittee\xe2\x80\x99s chief\ncounsel, Marty Steinberg, requested such tapes dealing with \xe2\x80\x9corganized\ncrime, labor racketeering, and narcotics trafficking.\xe2\x80\x9d We conclude, as\nexplained below, that this Department is empowered under Title III of\nthe Omnibus Crime Control and Safe Streets Act of 1968, as amended,\n18 U.S.C. \xc2\xa7 2510 et seq., to disclose tapes of court-authorized intercep\xc2\xad\ntions of wire communications in response to a proper request or\ndemand by a congressional committee unless, in the Department\xe2\x80\x99s judg\xc2\xad\nment, such disclosure would be improper because of our duty faithfully\nto execute the criminal laws.\nOrdinarily, this Department is empowered to respond to proper re\xc2\xad\nquests for information from congressional committees, unless such in\xc2\xad\nformation is privileged or protected by a statutory restriction upon\nexecutive agency disclosure. The only applicable statutory restriction of\nwhich we are aware in this instance is 18 U.S.C. \xc2\xa72515, which pro\xc2\xad\nvides:\nWhenever any wire or oral communication has been inter\xc2\xad\ncepted, no part o f the contents o f such communication and\nno evidence derived therefrom may be received in evidence\nin any trial, hearing, or other proceeding in or before any\n627\n\n\x0ccourt, grand jury, department, officer, agency, regulatory\nbody, legislative committee, or other authority of the\nUnited States, a State, or a political subdivision thereof if\nthe disclosure o f that information would be in violation o f\nthis chapter [i.e., Title III]. [Emphasis added.]\n\nSection 2515 is not an absolute, but a conditional limitation on disclo\xc2\xad\nsure. If disclosure is otherwise authorized by Title III, it is not prohib\xc2\xad\nited by \xc2\xa72515.\nThe authority to disclose intercepted wire communications appears in\n18 U.S.C. \xc2\xa7 2517. Subsection (2) of that section provides:\nAny investigative or law enforcement officer who, by any\nmeans authorized by this chapter, has obtained knowledge\nof the contents of any wire or Oral communication or\nevidence derived therefrom may use such contents to the\nextent such use is appropriate to the proper performance\nof his official duties.\nBecause the proper performance of the official duties of Department\npersonnel includes responding to proper requests and demands of con\xc2\xad\ngressional committees, the plain language of this subsection would\nappear to authorize the disclosure in question.\nYour Division suggests that \xc2\xa72517(2) might not authorize disclosures\nto congressional committees, but might be limited to disclosures in\nconnection with \xe2\x80\x9cactual criminal investigations and prosecutions.\xe2\x80\x9d Al\xc2\xad\nthough the language of the Senate report explaining \xc2\xa7 2517(2) illustrates\nits coverage only with examples that would be so limited, S. Rep. No.\n1097, 90th Cong., 2d Sess. 99-100 (1968), we do not believe such a\nlimitation should be inferred from the statute.\nAs originally drafted by Professor G. Robert Blakey, the section that\nwas to become \xc2\xa72517 included language substantially similar to the\nsection eventually enacted, but included also the following section:\n(d) The contents of any wire or oral communication or\nevidence derived therefrom intercepted in conformity\nwith this Chapter may otherwise be disclosed only upon a\nshowing of good cause before a judge of competent juris\xc2\xad\ndiction.\n>\n\nBlakey, G. R., \xe2\x80\x9cAspects of the Evidence Gathering Process in Orga\xc2\xad\nnized Crime Cases: A Preliminary Analysis,\xe2\x80\x9d reprinted in President\xe2\x80\x99s\nCommission on Law Enforcement and Administration of Justice, Task\nForce Report: Organized Crime Annotations and Consultants' Papers 109\n(1967). It is certain from Professor Blakey\xe2\x80\x99s discussion that he viewed\ndisclosures to legislative committees as included within his subsection\n(d), and thus contingent upon a judicial finding of good cause. Id. at\n103-04.\n628\n\n\x0cSubsection (d), however, was omitted from S. 675, 90th Cong., 1st\nSess. (1967), which became Title III of the bill eventually enacted as\nthe Omnibus Crime Control and Safe Streets Act of 1968. We have\nfound no discussion of this omission in the legislative history of S. 675\nor Title III, but its impact would logically have to lead to one of the\nfollowing interpretations. Either Congress, like Professor Blakey, in\xc2\xad\ntended subsections (1)\xe2\x80\x94(3) to confer disclosure authority only with\nrespect to specific criminal proceedings and to eliminate any disclosure\nauthority outside that, context, or Congress intended to permit disclo\xc2\xad\nsures to Congress to be made without a court order under subsection\n(2), so long as the disclosures would be within the proper performance\nof an investigative or law enforcement officer\xe2\x80\x99s legal duties.\nFor three reasons, we conclude that the latter interpretation is more\nreasonable. First, the legislative history contains no suggestion that\nCongress intended to protect intercepted communications from proper\ndisclosures to congressional committees. Second, Congress ordinarily\ndoes not protect Executive Branch information in this way, cf, 5\nU.S.C. \xc2\xa7552a(b)(9). Third, providing Congress with information in ap\xc2\xad\npropriate instances in order to help facilitate its constitutionally man\xc2\xad\ndated legislative role is part of the legal obligation of the Executive\nBranch to help achieve a mutual accommodation of the two branches\xe2\x80\x99\nfunctional needs for information. U.S. v. American Telephone and Tele\xc2\xad\ngraph Co., 567 F. 2d 121 (D.C. Cir. 1977). We should not lightly assume\nthat Congress has proscribed our participation in what otherwise would\nbe a constitutionally mandated effort at cooperation.1\nIt should be noted that, although \xc2\xa72517(2) authorizes the use of the\ncontents of intercepted communications \xe2\x80\x9cto the extent such use is\nappropriate to the proper performance of [the] official duties\xe2\x80\x9d of an\ninvestigative or law enforcement officer, this section does not require\nautomatic compliance with the requests of legislative committees and,\non its face, mandates a finding by a disclosing officer that the requested\ndisclosure would be \xe2\x80\x9cappropriate to the proper performance\nof . . . official duties.\xe2\x80\x9d There are foreseeable circumstances in which\nthe disclosure to congressional committees of the contents of inter\xc2\xad\ncepted communications would impede Departmental performance of\nother official duties, e.g., by compromising ongoing investigations or\ndivulging the identities of informants. Because the faithful execution of\n1 T he Criminal Division also suggests that the scope o f \xe2\x80\x9cofficial duties'* as that phrase is used in\n\xc2\xa72517(2) perhaps should be read as com prising only duties in connection w ith crim inal actions because\nCongress, w hen it subsequently wished to accom m odate the disclosure o f w iretap information in civil\nactions, am ended \xc2\xa72517(3), rather than regarding such disclosures as w ithin the proper perform ance o f\na law enforcem ent officer\xe2\x80\x99s official duties. Subsection (3) as first enacted in 1968, how ever, expressly\npertained to testimony in criminal actions and, absent the later am endm ent, the omission in that\nsubsection o f any reference to civil actions m ight have precluded an assumption that such actions w ere\ncovered by \xc2\xa72517(2). T he original limitation o f \xc2\xa72517(3) to crim inal actions, how ever, w ould not have\nprecluded an interpretation o f \xc2\xa72517(2) com prising nonadjudicatory proceedings, e.g., congressional\nhearings. On the different uses o f information in legislative and adjudicatory contexts, see. Senate Select\nCommittee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D .C. Cir. 1974).\n\n629\n\n\x0cthe criminal laws and the protection of the constitutional rights of\npotential defendants requires this Department to avoid disruptions in\nthe orderly handling of cases, we conclude that the Department might\nreasonably determine that disclosures to Congress, in certain cases,\nwould not be \xe2\x80\x9cappropriate to the proper performance of . . . official\nduties.\xe2\x80\x9d In sum, the proper exercise of authority under this section\nrequires a balancing of responsibilities, and the Department may, as\nappropriate, comply with or decline committee requests for the con\xc2\xad\ntents of intercepted communications.\nL arry A. H a m m ond\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n630\n\n\x0c"


b"President Reagan\xe2\x80\x99s Ability to Receive Retirement Benefits\nfrom the State of California\nPayment to President Reagan of the state retirement benefits to which he is entitled is not\nintended to subject him to improper influence, nor would it have any such effect, and\ntherefore his receipt of such benefits would not violate the Presidential Emoluments\nClause. U.S. Const., Art. II, \xc2\xa7 1, cl. 7.\nEven if the Presidential Emoluments Clause were interpreted strictly on the basis of the\ndictionary definition of the term \xe2\x80\x9cemolument,\xe2\x80\x9d it would not prohibit President\nReagan's receipt of state retirement benefits since under state law those benefits are\nneither a gift nor a part of the retiree's compensation.\nThe role of the Comptroller General in enforcing compliance with the Presidential\nEmoluments Clause is debatable, the penalty for a violation is unclear, and the Consti\xc2\xad\ntution might in any case make questionable the withholding of any part o f the Presi\xc2\xad\ndent\xe2\x80\x99s salary for an indebtedness to the United States.\n\nJune 23, 1981\nM EM ORANDUM OPIN IO N FOR\nTH E CO UN SEL TO TH E PR ESID EN T\nThis responds to your request for our opinion whether the receipt by\nPresident Reagan of the retirement benefits to which he became enti\xc2\xad\ntled as the result of his service as Governor of the State of California\nconflicts with the Presidential Emoluments Clause of the Constitution,\nwhich provides:\nThe President shall, at stated Times, receive for his Serv\xc2\xad\nices, a Compensation, which shall neither be increased nor\ndiminished during the Period for which he shall have\nbeen elected, and he shall not receive within that Period any\nother Emolument from the United States, or any o f them.\n\nU.S. Const., Art. II., \xc2\xa7 1, cl. 7 (emphasis added).\nWe have been advised that, while serving as G overnor of the State\nof California, the President elected to become a member of the Legisla\xc2\xad\ntors\xe2\x80\x99 Retirement System pursuant to \xc2\xa7 9355.4 of the California G overn\xc2\xad\nment Code. He became entitled to, and has drawn, retirement benefits\nunder that system since the expiration of his second term as Governor\nin 1975. The California Legislators\xe2\x80\x99 Retirement System is contributory,\n\xc2\xa7 9357, and the benefits under it are based on length of service, \xc2\xa7 9359.\nAccording to the decisions of the California courts, the benefits under\nthe state retirement systems, including the one of which President\n187\n\n\x0cReagan is a member, constitute vested rights. They are not gratuities\nwhich the state is free to withdraw. Betts v. Board o f Admin, o f Pub.\nEmployees' Ret. System, 21 Cal. 3d 859, 863 (1978). See also Kern v. City\no f Long Beach, 29 Cal. 2d 848, 851, 853 (1947).\nI.\n\nThe w ord \xe2\x80\x9cemolument\xe2\x80\x9d is an archaic term. The Oxford English\nDictionary defines it as \xe2\x80\x9c profit or gain arising from station, office, or\nemployment: reward, remuneration, salary.\xe2\x80\x9d It also gives the obsolete\nmeanings of \xe2\x80\x9cadvantage, benefit, comfort.\xe2\x80\x9d Webster\xe2\x80\x99s Third New Inter\xc2\xad\nnational Dictionary contains similar definitions.\nThe extant records o f the Constitutional Convention are silent re\xc2\xad\ngarding the purposes which Article II, \xc2\xa7 1, clause 7, and related Article\nI, \xc2\xa7 9, clause 8 1 were intended to serve. Both clauses, however, were\ndiscussed during the State Ratification Conventions. The Federalist No.\n73, attributed to Alexander Hamilton, explains that Art. II, \xc2\xa7 1, clause 7\nwas designed to protect \xe2\x80\x9c the independence intended for him [the Presi\xc2\xad\ndent] by the Constitution,\xe2\x80\x9d so that neither Congress nor the states could\nweaken his fortitude by operating on his necessities, nor\ncorrupt his integrity by appealing to his avarice. Neither\nthe Union, nor any o f its members, will be at liberty to\ngive, nor will he be at liberty to receive, any other emolu\xc2\xad\nment than that which may have been determined by the\nfirst act.2\nId. at 442.\n\nG overnor Randolph gave a similar explanation of the purposes un\xc2\xad\nderlying A rticle I, \xc2\xa7 9, clause 8 in the Virginia Ratification Convention.\nH e stated that it had been prompted by the gift of a snuff box by the\nKing of France to Benjamin Franklin, then Ambassador to France. It\ntherefore \xe2\x80\x9cwas thought proper, in order to exclude corruption and\nforeign influence, to prohibit anyone in office from receiving or holding\nany emoluments from foreign states.\xe2\x80\x9d 3 M. Farrand, Records of the\nFederal Convention of 1787 327 (rev. ed. 1937, 1966 reprint). Governor\nRandolph used the term \xe2\x80\x9cemolument\xe2\x80\x9d in the sense of a present rather\nthan compensation for services. From this history, it appears that the\nterm emolument has a strong connotation of, if it is not indeed limited\nto, payments which have a potential of influencing or corrupting the\nintegrity o f the recipient. To our knowledge, these two provisions were\ninterpreted by federal authorities in that manner in all but one of the\nincidents in which this problem arose.\n1A rticle I, \xc2\xa7 9, clause 8 provides in pertinent part \xe2\x80\x9c no person holding any Office of Profit or Trust\nunder them [the United States] shall without the Consent o f the Congress, accept any present,\nEmolument, Office, or Title, o f any kind whatever, from any King, Prince or foreign State.\xe2\x80\x9d\n2T he \xe2\x80\x9c first act\xe2\x80\x9d refers to the legislation governing the President\xe2\x80\x99s compensation which is in effect\nat the beginning of the period for which he is elected.\n\n188\n\n\x0cIn 1902 Acting Attorney General Hoyt explained that the purpose of\nArticle I, \xc2\xa7 9, clause 8 was \xe2\x80\x9cparticularly directed against every kind of\ninfluence by foreign governments upon officers of the United States\n. . . 24 Op. A tt\xe2\x80\x99y Gen. 116, 117 (1902).\nA similar approach was taken by the Comptroller General 3 in 1955\nin the case of a former German judge who, after his removal from\noffice by the national-socialist regime, had emigrated to the United\nStates and become an attorney in the Department of Justice. After\nW orld W ar II, as the result of the German indemnification legislation,\nthe enactment of which was required by the United States occupation\nauthorities, he received from the German government a lump sum\npayment and an annuity for life in compensation for the wrongful\ndismissal. The Comptroller General ruled that those payments did not\nconstitute emoluments directly stemming from his former office, but\nthat they \xe2\x80\x9crepresent damages payable as a direct result of a moral and\nlegal wrong.\xe2\x80\x9d 34 Comp. Gen. 331, 334 (1955). In addition the Comp\xc2\xad\ntroller General felt it \xe2\x80\x9cappropriate\xe2\x80\x9d to determine whether the receipt of\nthe indemnity would violate the spirit of the Constitution. Referring to\nActing A ttorney General Hoyt\xe2\x80\x99s opinion, supra, he considered the test\nto be whether the payments were intended to influence, or had the\neffect of influencing, the recipient as an officer of the United States.\nThe Comptroller General held that not to be the case in these circum\xc2\xad\nstances. Id. at 335.\nThe same analysis of the problem was made by this Office in 1964 in\nconnection with the question whether the estate of President Kennedy\nwas entitled to the naval retirement pay that had accrued while he was\nPresident. A memorandum prepared in this Office was based on the\nconsideration that Article II, \xc2\xa7 1, clause 7 has to be interpreted in the\nlight of its basic purposes and principles, viz., to prevent Congress or\nany of the states from attempting to influence the President through\nfinancial awards or penalties.4 It concluded that this constitutional pur\xc2\xad\npose would be\nin no wise furthered by interpreting the clause as prohibit\xc2\xad\ning the President from continuing to receive payments to\nwhich he was, prior to his taking office, entitled as a\nmatter of law and for which he does not have to perform\nany services or fulfull any other obligations as a condition\nprecedent to receipt of such payments.\n3 On the role of the Comptroller General in this area, see the Annex to this memorandum.\n4 Since Robert Kennedy was Attorney General at the time when this matter was before the\nDepartment of Justice, it was felt that the Department of Justice should take no official position on the\nquestion involved. Instead, the Office of Legal Counsel furnished to the General Accounting Office a\nstaff memorandum which \xe2\x80\x9cshould not be deemed an official utterance of the Department. It is an\nunofficial work-product supplied for whatever the idea may be w orth to you (the General Counsel,\nGeneral Accounting Office).\xe2\x80\x9d Letter from Assistant Attorney General Schlei to General Counsel\nKeller, General Accounting Office, dated October 13, 1964, and attached staff memorandum, dated\nOctober 12, 1964.\n\n189\n\n\x0cT he General Accounting Office denied the claim, not on the ground\nthat its allowance would violate the Constitution, but on the statutory\nbasis that the President had received active duty pay as Commander-inC hief of the Armed Forces and therefore was precluded by 10 U.S.C.\n\xc2\xa7684 and 38 U.S.C. \xc2\xa7 314(c) from receiving retired pay for the same\nperiod.5\nHence, if Article II, \xc2\xa7 1, clause 7 is to be interpreted only on the\nbasis o f the purposes it is intended to achieve, it would not bar the\nreceipt by President Reagan of a pension in which he acquired a vested\nright 6 years before he became President, for which he no longer has to\nperform any services, and of which the State of California cannot\ndeprive him.\nII.\nT he result would be the same, under California law, if Article II, \xc2\xa7 1,\nclause 7 were interpreted exclusively on the basis o f the dictionary\nmeaning of the term emolument. T he Comptroller General took that\napproach in 1957 when he was confronted w ith the question whether\nthe receipt by a federal court crier of a pension from the British\ngovernm ent for war services violated Article I, \xc2\xa7 9, clause 8 of the\nConstitution. Disregarding the issue whether the receipt of the pension\ncould have the effect o f enabling the British government to influence\nthe court crier in its favor, the Com ptroller General ruled that the\nreceipt o f the pension w ould violate that constitutional provision, be\xc2\xad\ncause a pension constituted either a \xe2\x80\x9cgratuity\xe2\x80\x9d or a \xe2\x80\x9cdeferred compen\xc2\xad\nsation.\xe2\x80\x9d If a \xe2\x80\x9cgratuity,\xe2\x80\x9d it was a present, if \xe2\x80\x9cdeferred compensation\xe2\x80\x9d\nwas compensation for services and therefore came within the dictionary\ndefinition of the term emolument. 37 Comp. Gen. 138, 140 (1957).\nAssuming, arguendo, that the Com ptroller General was correct in\nlimiting himself to the issue whether the pension was to be classified\ntechnically as a gift or compensation for services and, hence, consti\xc2\xad\ntuted an emolument in the dictionary sense 6 regardless of whether it\nhad the potential of influencing the recipient in favor of the British\ngovernm ent, we would not say that his ruling was erroneous. Under\nBritish law the pension may have been a gift or compensation for past\nservices. Rulings of the courts of California interpreting Article 16, \xc2\xa76\n6 L etter from General Counsel Keller, General Accounting Office, to Assistant Attorney General\nSchlei, dated N ovem ber 1, 1964.\n6 See, how ever, state court decisions such as Opinion o f the Justices, 117 N.H. 409, 411 (1977), and\nCampbell v. Kelly, 157 W. Va. 453, 464, 466 (1974), which point to the irrelevance o f the dictionary\ndefinition of the term emolument in this context. Those decisions are based on the consideration that\nm odem retirem ent systems do not give rise to the evils at which the prohibitions against emoluments,\ngifts, and pensions in 18th and 19th century constitutions were directed. T hey therefore conclude that\nthese benefits are not \xe2\x80\x9cwithin the contemplation\xe2\x80\x9d of such prohibitions. On the development of\npensions from arbitrary grants to favorites and persons \xe2\x80\x9c w ho could be counted on to do the\ngovernm ent\xe2\x80\x99s bidding\xe2\x80\x9d to a politically neutral system of insurance, see 12 Encyclopedia o f the Social\nSciences, pp. 65-69, &v. Pensions (1934).\n\n190\n\n\x0cof the California Constitution, which prohibits the gifts of public\nmoneys, and Article 4, \xc2\xa7 17 and Article 11, \xc2\xa7 1, which prohibit the grant\no f extra compensation by local governments after services have been\nrendered, however, have determined that in California retirement bene\xc2\xad\nfits such as those received by President Reagan are neither gifts nor\ncompensation for services.\nThe California courts have established firmly that the benefits under\nthe California pension or retirement statutes are not gifts. O'Dea v.\nCook, 176 Cal. 659, 661-62 (1917), Sweesy v. Los Angeles etc. Retirement\nBoard, 17 Cal. 2d 356, 359-60 (1941), and the authorities there cited;\nKern v. City o f Long Beach, 29 Cal. 2d 848, 851, 853 (1947), and the\nauthorities there cited.\nCalifornia decisions holding that retirement benefits are not gratuities,\nhowever, frequently characterize them, as do rulings in other jurisdic\xc2\xad\ntions, as \xe2\x80\x9cdeferred benefits\xe2\x80\x9d or \xe2\x80\x9cdeferred compensation.\xe2\x80\x9d See Kern v.\nCity o f Long Beach, supra, at 852, 855, Miller v. State o f California, 18\nCal. 3d 808, 815 (1977). If retirement benefits actually constituted com\xc2\xad\npensation, even though deferred, Article 4, \xc2\xa717, and Article 11, \xc2\xa71 of\nthe California Constitution would prohibit them to be increased subse\xc2\xad\nquent to the rendering of the services for which they were earned, in\nparticular after retirement. T he California courts, however, have real\xc2\xad\nized, as have the courts of many other jurisdictions,7 that the term\n\xe2\x80\x9cdeferred compensation\xe2\x80\x9d is essentially convenient shorthand for the\nconclusion that retirement benefits are not gifts or gratuities, and that it\nmay not be taken literally.\nIn Sweesy v. Los Angeles, etc. Retirement Board, supra at 361-63\n(1941), which involved an increase of pension benefits after the em\xc2\xad\nployee had retired, the Supreme Court of California rejected the notion\nthat pensions are simply additional or increased compensation and,\nobserving (at 362) that the definition o f retirement benefits as additional\nor increased compensation \xe2\x80\x9cmay not be accurate in every case,\xe2\x80\x9d it\ncreated the concept that pension benefits are derived from the \xe2\x80\x9cpen\xc2\xad\nsionable status,\xe2\x80\x9d 8 See also Nelson v. City o f Los Angeles, 21 Cal. App. 3d\n916, 919 (1971). Under California law retirement benefits therefore\nconstitute an incident of the pensionable status. They are neither a gift\nnor a part of the retiree\xe2\x80\x99s compensation, earned while employed, the\npayment of which is deferred until after his retirement. In any event,\nregardless of any dictionary definition, retirement benefits are not\n7Some states have held that the \xe2\x80\x9cdeferred compensation*' description of retirement benefits is\nmisleading and that those benefits are sut generis, not readily subject to classification. See, e.g. State ex\nrel Wittier v. Yelle, 65 Wash. 2d 660 (1965). Illinois and New Mexico liken retirement benefits to\ninsurance contracts, Raines v. Board o f Trustees Pen. Fund, 365 111. 610 (1937), State ex rel. Hudgins v.\nPublic Employees Retirement Board, 58 N.M. 543 (1954). Still others hold that retirement benefits are\nnot compensation for past services but an inducement to remain in service and to retire when super\xc2\xad\nannuated. See, e.g. Rochlin v. State. 112 Ariz. 171 (1975).\n* F or an analysis o f the concept o f \xe2\x80\x9cpensionable status\xe2\x80\x9d see Jorgenson v. Cranston, 211 Cal. App. 2d 292,\n298-300 (1962).\n\n191\n\n\x0cemoluments within the meaning of the Constitution because interests of\nthis kind were not contemplated by the members of the Constitutional\nConvention o f 1789.9\nIn sum, the receipt by President Reagan of his California retirement\nbenefits does not violate the language of Article II, \xc2\xa7 1, clause 7 of the\nConstitution because those benefits are not emoluments in the constitu\xc2\xad\ntional sense. Similarly, such receipt does not violate the spirit of the\nConstitution because they do not subject the President to any improper\ninfluence. The principal question presented by you therefore must be\nanswered in the negative. In view o f this conclusion, it is not necessary\nto answer the subsidiary questions raised in the last paragraph of your\ninquiry.\nThe A ttorney General and Assistant A ttorney General Olson have\nnot participated in the preparation of this opinion.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\nAnnex A ttached\n\n9 See n 6, supra.\n\n192\n\n\x0cANNEX\nThe role of the Comptroller General in this field is debatable. His\ninvolvement in this issue usually resulted from agency inquiries as to\nthe legality of the payment of salary to employees who received pay\xc2\xad\nments from a foreign government. The opinions of January 12, 1955, 34\nComp. Gen. 331 (1955) and August 26, 1957, 37 Comp. Gen. 138 (1957)\nassume without explanation that an employee of the United States who\naccepts any emolument from a foreign government in violation of\nArticle I. \xc2\xa7 9, clause 8 of the Constitution forfeits the entire compensa\xc2\xad\ntion for his employment by the federal government. The subsequent\ndecisions of September 11, 1964, 44 Comp. Gen. 130 (1964) and of\nApril 9, 1974, 53 Comp. Gen. 753, 758 (1974) concede that Article I,\n\xc2\xa7 9, clause 8 does not specify the penalty to be imposed for its violation.\nThe opinions, however, assert without any statutory basis that \xe2\x80\x9csubstan\xc2\xad\ntial effect\xe2\x80\x9d can be given to the clause by withholding from the employ\xc2\xad\nee\xe2\x80\x99s pay an amount equal to the one which he received in violation o f\nthe Constitution. This result is in marked contrast to the position long\nheld by the Comptroller General that in the absence of specific statu\xc2\xad\ntory authority his Office is not justified in setting off against the salaries\nof government employees any debts owed by them to the government,\neven if those debts are liquidated and undisputed. 29 Comp. Gen. 99\n(1949).10\nAdditional problems would be presented if the Comptroller General\nsought to reduce the President\xe2\x80\x99s salary by the amount of the retirement\nbenefits he receives from the State of California. Article II, \xc2\xa7 1, clause 7\nprovides that the President\xe2\x80\x99s salary shall not be diminished during the\nperiod for which he shall be elected. The corresponding provision of\nArticle III, \xc2\xa7 1, which prohibits the diminution of the salary o f Article\nIII judges during their continuance in office, has been interpreted as\nprohibiting the withholding of a judge\xe2\x80\x99s statutory salary for an alleged\nindebtedness to the United States. Smith v. Jackson, 241 Fed. 747, 758\n(D.C.C.Z. 1916), a ffd on the opinion below, 241 Fed. 747, 111 (5th Cir.\n1917), a ffd 246 U.S. 388 (1918).\n\n10 T he Comptroller General adhered to this opinion as recently as May 8, 1979, File B-189154.\n\n193\n\n\x0c"


b'Lease or Loan of Aircraft to Foreign Countries for Assistance\nin International Narcotics Control Under Subsection\n506(a)(2) of the Foreign Assistance Act of 1961\nT h e fe d e ra l g o v e rn m e n t m a y le a se o r lo a n D e p a rtm e n t o f D e fe n se a irc ra ft to fo re ig n c o u n trie s\nto a s s is t in in te rn a tio n a l n a rc o tic s c o n tro l u n d e r th e a u th o rity o f s u b se c tio n 5 0 6 (a )(2 ) o f th e\nF o re ig n A ss is ta n c e A c t o f 1961.\n\nJune 4, 1990\nM e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e p r e s id e n t\n\nThis memorandum responds to a request from David C. Miller, Jr., Spe\xc2\xad\ncial Assistant to the President and Senior Director, National Security Council,\nfor our advice whether the federal government may lease or loan aircraft to\nforeign countries to assist in international narcotics control under the author\xc2\xad\nity of subsection 506(a)(2) of the Foreign Assistance Act of 1961, as amended\n(the \xe2\x80\x9cFAA\xe2\x80\x9d), 22 U.S.C. \xc2\xa7 2318(a)(2). For the reasons that follow, we con\xc2\xad\nclude that aircraft may be leased to foreign countries to assist in international\nnarcotics control under the authority of that provision.1\n\nDiscussion\nSubsection 506(a)(2) of the FAA grants the President authority, inter alia,\nto draw down \xe2\x80\x9cdefense articles\xe2\x80\x9d and \xe2\x80\x9cdefense services\xe2\x80\x9d from the stocks of\nthe Department of Defense \xe2\x80\x9cfor the purposes and under the authorities o f \xe2\x80\x99\nsections 481 through 489 of the FAA, 22 U.S.C. \xc2\xa7\xc2\xa7 2291-2291h, if he deter\xc2\xad\nmines and reports to Congress that the provision of such assistance is \xe2\x80\x9cin the\nnational interest.\xe2\x80\x9d 22 U.S.C. \xc2\xa7 2318(a)(2)(A)(i).2 Sections 481 through 489\nof the FAA relate to international narcotics control. In particular, subsection\n481(a)(4) of the FAA authorizes the President, \xe2\x80\x9c[notwithstanding any other\nprovision of law, . . . to furnish assistance to any country or international\norganization, on such terms and conditions as he may determ ine , for the\ncontrol of narcotic and psychotropic drugs and other controlled substances.\xe2\x80\x9d\n22 U.S.C. \xc2\xa7 2291(a)(4) (emphasis added).3 The express grant of authority in\n1B oth the D ep artm en t o f S tate and the D efense S ecurity A ssistan ce A gency co n cu r in this co n clu sio n .\n2S ubsectio n 5 0 6 (a)(2 ) o f the FAA also g rants the P resident authority to draw dow n \xe2\x80\x9cd e fe n se a rtic le s \xe2\x80\x9d\nand \xe2\x80\x9c d efen se serv ice s" fro m th e stocks o f the D epartm ent o f D efense to provide in ternational d is a s te r\nassistance under 22 U .S .C . \xc2\xa7\xc2\xa7 2292-2292q, o r to m eet refu g ee and m ig ration needs u n d e r the M ig ra tio n\nand R efugee A ssistance A ct o f 1962, as am ended, 22 U.S.C. \xc2\xa7\xc2\xa7 2601-2606. 22 U .S.C . \xc2\xa7 2318(a)(2)(A )(ii).\nT h e aggreg ate value o f the articles and services draw n do w n under the a u thority o f su b section 5 0 6 (a )(2 )\nis lim ited to $75 m illio n p e r fiscal year. 22 U .S .C . \xc2\xa7 2318(a)(2)(B ).\n\n119\n\n\x0csubsection 506(a)(2) of the FAA to furnish assistance under subsection\n481(a)(4) of the FAA is clearly broad enough to encompass leases or loans\nof defense articles such as aircraft to foreign countries to assist in international\nnarcotics control. Indeed, the term \xe2\x80\x9cdefense article\xe2\x80\x9d is defined in subsection\n644(d)(1) of the FAA, 22 U.S.C. \xc2\xa7 2403(d)(1), as including \xe2\x80\x9cany weapon, weap\xc2\xad\nons system, munition, aircraft, vessel, boat or other implement of war.\xe2\x80\x9d\n\nConclusion\nWe conclude that the federal government may lease or loan Defense De\xc2\xad\npartment aircraft to foreign countries to assist in international narcotics control\nunder the authority of subsection 506(a)(2) o f the FAA, 22 U.S.C. \xc2\xa7\n2318(a)(2).\n\nJ. MICHAEL LUTTIG\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n3 B e c a u s e s u b s e c tio n 4 8 1 (a )(4 ) o f th e FA A a u th o r iz e s th e P r e s id e n t to fu r n is h a s s is ta n c e\n\xe2\x80\x9c [n o tw ith s ta n d in g any o th e r provision o f law ,\xe2\x80\x9d we need n o t resolve the question w h e th er the A rm s\nE x p o rt C o n tro l A ct (th e "A E C A \xe2\x80\x9d) w o u ld o th erw ise p ro h ib it the lease o f defense a rtic le s such as a irc ra ft\nu n d e r th e FA A . S u b se ctio n 61(a) o f th e A EC A sp ecifically authorizes the P resident to \xe2\x80\x9c lease d efen se\na rtic le s in th e sto c k s o f the D epartm ent o f D efense to an elig ib le foreign country o r in ternational o rg a \xc2\xad\nn iz a tio n \xe2\x80\x9d if he \xe2\x80\x9cd e te rm in e s that there a re com pelling fo reig n policy and national security re a so n s\xe2\x80\x9d for\nsu ch a ctio n . 22 U .S .C . \xc2\xa7 2796(a). U n d e r subsection 6 1 (c) o f the A E C A , "lease[s] o r loan[s]\xe2\x80\x9d o f such\na rtic le s m a y b e m ad e \xe2\x80\x9co n ly under the a u th o rity o f this su b ch a p te r [22 U .S .C . \xc2\xa7\xc2\xa7 2 796-2796d] o r c h a p te r\n2 o f p a rt II o f th e F o reig n A ssistance A c t o f 1961 [22 U .S .C . \xc2\xa7 2311 e t seq.].\xe2\x80\x9d 22 U .S .C . \xc2\xa7 2 796(c).\nS u b se c tio n 5 0 6 (a )(2 ) o f th e FAA, 22 U .S .C . \xc2\xa7 2 3 1 8 (a)(2 ), is co n tain ed in \xe2\x80\x9cc h ap ter 2 o f p art II o f the\n[F A A ],\xe2\x80\x9d see Pub. L. N o. 8 7-195, 75 S tat. 424, 435-38 (1 9 6 1 ), and thus subsection 61 (c) does not a p p e a r\no n its fa c e to p ro h ib it the m aking o f le a se s o r loans u n d e r the a u thority o f FAA su b section 506(a)(2).\nN e v e rth e le s s, w e h ave b e en advised b y Jero m e H. Silber, G eneral C ounsel o f the D efense S ecurity\nA ss is ta n c e A g en cy , th a t d esp ite the p la in language o f su b section 61(c), there is som e question as to\nw h e th e r su b se c tio n 6 1 (c) w as intended to perm it the m ak in g o f leases under the a u thority o f the FA A .\nM r. S ilb e r a g re es, ho w ev er, that this issu e n eed not be reso lv ed here in light o f the e xpress g ra n t o f\na u th o rity in su b se c tio n 48 1 (a)(4 ) o f th e FAA to furnish assistan ce "[n ]o tw ith stan d in g any o th e r p ro v i\xc2\xad\nsio n o f law .\xe2\x80\x9d\n\n120\n\n\x0c'