b'Interpretation of Inspector General Act\nA lthough it is a clo se q uestion, the better interpretation o f the Inspector G eneral Act is that Congress\ndid not in tend to lim it the phrase \xe2\x80\x9c recom m endation that funds be put to better u se\xe2\x80\x9d to only those\nau d it reco m m en d atio ns that achieve identifiable m onetary savings.\n\nM arch 20, 1998\nM\n\nem orandum\n\nO p in io n\n\nf o r the\n\nA s s is t a n t A t t o r n e y G e n e r a l\n\nfo r\n\nA d m i n is t r a t io n\n\nAND THE\nIn sp e c t o r G e n e r a l\n\nYou have asked us to resolve a dispute regarding the appropriate interpretation\nof the phrase \xe2\x80\x9c recommendation that funds be put to better use,\xe2\x80\x9d as used in the\nInspector General Act, 5 U.S.C. app. \xc2\xa7\xc2\xa7 1-12 (1994) ( \xe2\x80\x9c IG Act\xe2\x80\x9d ). It is our under\xc2\xad\nstanding that the Justice Management Division ( \xe2\x80\x9c JM D\xe2\x80\x9d ) and the Office of the\nInspector General ( \xe2\x80\x9c OIG\xe2\x80\x9d ) disagree as to which recommendations may properly\nbe identified and reported by OIG as \xe2\x80\x9c funds put to better use.\xe2\x80\x9d See Memorandum\nfor Dawn Johnsen, Acting Assistant Attorney General, Office of Legal Counsel,\nfrom Stephen R. Colgate, Assistant Attorney General for Administration, and\nMichael R. Bromwich, Inspector General, Re: A udit Resolution Committee Request\nfo r Legal Opinion (July 11, 1997). JMD asserts that \xe2\x80\x9c \xe2\x80\x98funds put to better use\xe2\x80\x99\nmay only be claimed when some type of savings results from the audit rec\xc2\xad\nommendation.\xe2\x80\x9d Id. at 1. OIG, on the other hand, believes that the phrase also\nencompasses \xe2\x80\x9c recommendations that funds be redirected to achieve greater effi\xc2\xad\nciency, accountability, or internal control objectives even though not necessarily\nmonetized as savings.\xe2\x80\x9d Id.\nAs we explain more fully below, we conclude that, although it is a close ques\xc2\xad\ntion, the better reading of the statute is that Congress did not intend to limit the\nphrase \xe2\x80\x98 \xe2\x80\x98recommendation that funds be put to better use\xe2\x80\x99 \xe2\x80\x99 to only those audit rec\xc2\xad\nommendations that achieve identifiable monetary savings.\n\nDISCUSSION\nSection 5 of the IG Act requires each Inspector General to prepare semiannual\nreports \xe2\x80\x9c summarizing the activities of the Office\xe2\x80\x9d during the immediately pre\xc2\xad\nceding six-month period. 5 U.S.C. app. \xc2\xa75(a). The statute specifies certain\ninformation that must, at a minimum, be contained in such reports. Id. Included\namong these requirements is:\na listing, subdivided according to subject matter, of each audit\nreport issued by the Office during the reporting period and for each\naudit report, where applicable, the total dollar value of questioned\n50\n\n\x0cInterpretation o f Inspector General Act\n\ncosts (including a separate category for the dollar value of unsup\xc2\xad\nported costs) and the dollar value of recommendations that funds\nbe put to better use.\nId. \xc2\xa7 5(a)(6). The statute further requires separate statistical tables summarizing,\n\nwith respect to audit reports pending and issued during the reporting period,\ndecisions made by management as a result of those reports: one table concerns\nthe status of management decisions in response to questioned costs, and the other\nconcerns the status o f management decisions in response to recommendations that\nfunds be put to better use. Id. \xc2\xa7 5(a)(8), (9).\nThe phrase \xe2\x80\x9c recommendation that funds be put to better use\xe2\x80\x9d is defined in\nthe IG Act as follows:\na recommendation by the Office that funds could be used more\nefficiently if management of an establishment took actions to imple\xc2\xad\nment and complete the recommendation, including\xe2\x80\x94\n(A) reductions in outlays;\n(B) deobligation of funds from programs or operations;\n(C) withdrawal of interest subsidy costs on loans or loan\nguarantees, insurance, or bonds;\n(D) costs not incurred by implementing recommended\nimprovements related to the operations of the establishment,\na contractor or grantee;\n(E) avoidance of unnecessary expenditures noted in\npreaward reviews of contract or grant agreements; or\n(F) any other savings which are specifically identified.\nId. \xc2\xa7 5(f)(4). Looking first only to that portion of the definition that precedes items\n\n(A) through (F), the critical interpretive question is whether \xe2\x80\x9c a recommendation\n. . . that funds could be used more efficiently\xe2\x80\x9d is limited to a recommendation\nthat funds could be saved. An affirmative answer to this question requires equating\nefficiency with identifiable savings.1 However, the dictionary defines \xe2\x80\x9c efficiency\xe2\x80\x9d\nas the \xe2\x80\x9c capacity to produce desired results with a minimum expenditure of energy,\ntime, money, or materials.\xe2\x80\x9d Webster\xe2\x80\x99s Third New International Dictionary 725\n(1986). Pursuant to this definition, efficiency could include, but need not nec\xc2\xad\nessarily be limited to, monetary savings. Efficiency could be achieved, for\nexample, by accomplishing a particular task in a shorter amount of time, thereby\nfreeing up personnel resources to turn to another task. Although ultimately an\nagency may save money by saving energy, time, or materials, such savings may\nbe neither identifiable nor quantifiable. We therefore conclude that, standing alone,\n1We use the term \xe2\x80\x9c savings\xe2\x80\x9d as we understand JMD uses that term, i.e an identifiable reduction in costs See\nW ebster\xe2\x80\x99s Third New International Dictionary 2020 (1986)\n\n51\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 22\n\nthe definition o f \xe2\x80\x9c recommendation that funds be put to better use\xe2\x80\x9d that precedes\nsubsections (A) through (F) would best be interpreted as not requiring a dem\xc2\xad\nonstration o f identifiable savings.\nJM D further contends, however, that each of the examples that follows in sub\xc2\xad\nsections 5(f)(4)(A) through (F) refers to some type of savings, and therefore that\nthe definition of \xe2\x80\x9c recommendation that funds be put to better use\xe2\x80\x9d also must\nbe interpreted as limited to specifically identified savings. Under the long-estab\xc2\xad\nlished canon o f ejusdem generis, where a general term follows a specific one,\nthe general term should be construed to encompass only subjects similar in nature\nto those subjects enumerated by the specific words. 2A Norman J. Singer, Suther\xc2\xad\nland Statutory Construction \xc2\xa747.17 (5th ed. 1992). The doctrine is equally\napplicable where specific words follow general ones: application of the general\nterm is then restricted to matters similar to those enumerated. Id. We note, how\xc2\xad\never, that the rule is, like other canons of statutory construction, \xe2\x80\x9c only an aid\nto the ascertainment of the true meaning of the statute. It is neither final nor\nexclusive.\xe2\x80\x9d H elvering v. Stockholms Enskilda Bank, 293 U.S. 84, 89 (1934). The\ncanon should not govern \xe2\x80\x9c when the whole context [of a statute] dictates a dif\xc2\xad\nferent conclusion.\xe2\x80\x9d Norfolk and Western Ry. v. American Train Dispatchers A ss\xe2\x80\x99n,\n499 U.S. 117, 129 (1991).\nThere are two separate ejusdem generis arguments to be made with respect to\nsubsection 5(f)(4). The first relies upon the catchall reference in subsection\n5(f)(4)(F) to \xe2\x80\x9c any other savings\xe2\x80\x9d to reinforce a conclusion from the text of sub\xc2\xad\nsections 5(f)(4)(A) through (E) that the categories itemized therein all enumerate\nvarious examples o f savings. OIG, however, disputes that all of the examples listed\nin subsections (A) through (E) constitute savings. OIG concedes that (A) ( \xe2\x80\x9c reduc\xc2\xad\ntions in outlays\xe2\x80\x9d ) and (B) (\xe2\x80\x9c deobligation of funds\xe2\x80\x9d ) comprise savings, but ques\xc2\xad\ntions whether (C) (\xe2\x80\x9c withdrawal o f interest subsidy costs\xe2\x80\x9d ) would also fall into\nthis category, especially if the interest subsidy is recaptured and reallocated else\xc2\xad\nwhere. See E-Mail for Beth Nolan, Deputy Assistant Attorney General, Office\nof Legal Counsel, and Janis Sposato, Deputy Assistant Attorney General, Justice\nManagement Division, from Robert L. Ashbaugh, Deputy Inspector General,\nOffice of Inspector General (Dec. 19, 1997). Similarly, OIG asserts that sub\xc2\xad\nsections (D) ( \xe2\x80\x9c costs not incurred by implementing recommended improvements\xe2\x80\x9d )\nand (E) ( \xe2\x80\x9c avoidance of unnecessary expenditures\xe2\x80\x9d ) need not necessarily result\nin savings, if the funds recovered are reinvested in the program. Id. We believe,\nhowever, that the better reading of (C), (D), and (E) is that they do define different\ncategories of savings. The language used in these subsections suggests funds\nrecovered\xe2\x80\x94 e.g., \xe2\x80\x9c withdrawal of . . . costs,\xe2\x80\x9d \xe2\x80\x9c costs not incurred,\xe2\x80\x9d \xe2\x80\x9c avoidance\nof unnecessary expenditures\xe2\x80\x9d \xe2\x80\x94and thus provides strong textual support for\napplication of ejusdem generis in this context.\nUnder the second ejusdem generis argument, the general definition of \xe2\x80\x9c rec\xc2\xad\nommendation that funds be put to better use\xe2\x80\x9d that precedes subsections 5(f)(4)(A)\n52\n\n\x0cInterpretation o f Inspector General Act\n\nthrough (F) is limited by the items Listed in those subsections, i.e. the definition\nis limited to identifiable savings. We believe this second argument, while not with\xc2\xad\nout merit, is less tenable in light of both the textual definition of \xe2\x80\x9c recommendation\nthat funds be put to better use\xe2\x80\x9d and the legislative history of the IG Act.\nUnder the statute, a \xe2\x80\x9c recommendation that funds be put to better use\xe2\x80\x9d is a\n\xe2\x80\x9c recommendation . . . that funds could be used more efficiently if management\nof an establishment took actions to implement and complete the recommendation,\nincluding\xe2\x80\x9d the list of examples of savings in subsections (A) through (F). 5 U.S.C.\napp. \xc2\xa7 5(f)(4). An interpretational difficulty is presented by the fact that the word\n\xe2\x80\x9c including\xe2\x80\x9d could be read to modify either the phrase \xe2\x80\x9c recommendation . . .\nthat funds could be used more efficiently\xe2\x80\x9d or the phrase \xe2\x80\x9c actions to implement\nand complete the recommendation.\xe2\x80\x9d If the list of examples of savings is read\nto modify the former, then the argument that \xe2\x80\x9c recommendation that funds be put\nto better use\xe2\x80\x9d is limited to savings is more forceful, for the various categories\nof savings would exemplify the kinds of final recommendations that management\nmight make. However, if the list of savings instead modifies the noun \xe2\x80\x9c actions,\xe2\x80\x9d\nthen the categories of itemized savings offer examples of the kinds of actions\nmanagement might take to \xe2\x80\x9c implement\xe2\x80\x9d a particular recommendation for greater\nefficiency. Under the second reading, achieving savings would be part of the\nimplementation of the recommendation; the decision whether to reinvest those\nsavings in the program from which they derived or to set them aside for some\nother purpose would complete the recommendation. Thus, a recommendation that\nfunds be put to better use could require management to take steps to achieve\nsavings and then reallocate those savings to the same program or others in order\nto realize a more efficient use of the funds, in terms of energy, time, or materials.\nThe end result need not necessarily produce identifiable savings, even though\nsavings would be achieved during one of the interim steps of the recommendation.\nAlthough it is a close question, we think that the second reading better rec\xc2\xad\nonciles the list of examples in subsections 5(f)(4)(A) through (F) with the broader\ndefinition o f \xe2\x80\x9c recommendation that funds be put to better use\xe2\x80\x9d preceding that\nlist. In light of our conclusion that the term \xe2\x80\x9c efficiently\xe2\x80\x9d is not limited to identifi\xc2\xad\nable savings, it is more consistent with this broader understanding to interpret\nsubsections (A) through (F) as illustrative of the kinds o f interim actions that\nmight be taken to implement a particular recommendation.\nBecause it is a close textual question, we look to the legislative history of the\n1988 amendments to the IG Act, in which the definition of \xe2\x80\x9c recommendation\nthat funds be put to better use\xe2\x80\x9d first appeared, to see if we can find evidence\nof congressional intent. The history is not particularly helpful with respect to the\nquestion before us, but it does not contradict our textual interpretation. One of\nCongress\xe2\x80\x99s concerns in enacting the 1988 amendments was that the semi-annual\nreports of inspectors general varied widely in format and in the terms used to\ndescribe the audit resolution process. See S. Rep. No. 100-150, at 24 (1987).\n53\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 22\n\nCongress wanted to standardize the reporting process in order to develop \xe2\x80\x9c an\noverall picture of the Federal government\xe2\x80\x99s progress against waste, fraud and mis\xc2\xad\nmanagement.\xe2\x80\x9d Id. At the same time, Congress enacted reforms \xe2\x80\x9c to provide for\nmore independence for audit and investigative operations.\xe2\x80\x9d H.R. Rep. No. 100771, at 5 (1988), reprinted in 1988 U.S.C.C.A.N. 3154, 3158 ( \xe2\x80\x9c House Report\xe2\x80\x9d ).\nThe House hearings on the 1988 amendments affirmed Congress\xe2\x80\x99s \xe2\x80\x9c strong\ncommitment to the IG concept and the indisputable preponderance of evidence\nthat IG \xe2\x80\x99s have greatly improved operations in their departments,and agencies, in\naddition to saving the American taxpayers literally billions of dollars.\xe2\x80\x9d Inspector\nGeneral A ct Amendments of 1988: Hearing on H.R. 4054 Before the Subcomm.\non Legislation and National Security o f the House Comm, on Government Oper\xc2\xad\nations, 100th Cong. 21 (1988) (emphasis added) (statement of Rep. Horton)\n\n(\xe2\x80\x9c House Hearing\xe2\x80\x9d ).\nOriginally, neither the Senate bill (S. 908) nor the House bill (H.R. 4054) pro\xc2\xad\nposing the 1988 amendments to the IG Act included any reference to \xe2\x80\x9c rec\xc2\xad\nommendation that funds be put to better use.\xe2\x80\x9d Rather, the phrase first appeared\nin H.R. 4054 after committee markup. The precise scope of the definition is not\naddressed in the legislative history. However, the House report offers some sup\xc2\xad\nport for a broad reading of that phrase that comports with our interpretation of\nthe text:\nThe format speaks of \xe2\x80\x9c funds recommended to be put to better use.\xe2\x80\x9d\nThe committee intends that inspectors general report the amounts\no f fun ds o r resources that will be used more efficiently as a result\no f actions taken by management or Congress if the inspector gen\xc2\xad\neral\xe2\x80\x99s recommendation is implemented.\nHouse Report at 19, reprinted in 1988 U.S.C.C.A.N. at 3172 (emphasis added).\nThe com m ittee\xe2\x80\x99s reference not only to \xe2\x80\x9c funds\xe2\x80\x9d but also to \xe2\x80\x9c resources\xe2\x80\x9d \xe2\x80\x9c that\nwill be used more efficiently\xe2\x80\x9d is more consistent with an understanding of \xe2\x80\x9c rec\xc2\xad\nommendation that funds be put to better use\xe2\x80\x9d that includes non-monetized effi\xc2\xad\nciencies.\nMoreover, while we recognize that the statements of individual legislators have\nlimited interpretive value, see G arcia v. United States, 469 U.S. 70, 76 (1984),\nwe note a floor comment made by Senator Glenn, Chairman of the Senate Govern\xc2\xad\nmental Affairs Committee that considered S. 908, who praised the historical suc\xc2\xad\ncess o f inspectors general in achieving both identifiable savings and non-quantifiable efficiencies:\nAccording to the most recent report from the Council that coordi\xc2\xad\nnates IG activities, in the past 5 years more than $92 billion have\nbeen recovered or put to better use because of the IG efforts.\n54\n\n\x0cInterpretation o f Inspector General Act\n\nThat comes out to about $18 billion per year. That is B for bil\xc2\xad\nlion. That is a significant amount of money. It could be even\ngreater than that, because it is difficult to evaluate and quantify\nsome o f these savings where you are making more efficient use o f\nmoney.\n\n134 Cong. Rec. 615 (1988) (statement of Sen. Glenn) (emphasis added). Although\nit is not clear that Senator Glenn, nor for that matter any other member of Con\xc2\xad\ngress who spoke about the proposed legislation, was thinking of the distinction\nbetween identifiable savings and other efficiencies in the context of \xe2\x80\x9c rec\xc2\xad\nommendation that funds be put to better use\xe2\x80\x9d at the time he made his statement,\nthe comment suggests that Senator Glenn considered that funds \xe2\x80\x9c recovered or\nput to better use\xe2\x80\x99 \xe2\x80\x99 would not necessarily be quantifiable.\n\nCONCLUSION\nNeither the text nor the legislative history of the IG Act offers clear evidence\nof how broadly Congress intended to define \xe2\x80\x9c recommendation that funds be put\nto better use.\xe2\x80\x9d Nevertheless, we conclude that, on balance, the better interpretation\nof that term is that it not be limited to only those audit recommendations that\nachieve identifiable monetary savings.\nDAWN JOHNSEN\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n55\n\n\x0c'


b'Authority of the Federal Communications Commission to\nDeny a Broadcast License to a Newspaper Owner\nThe Federal Communications Commission does not have authority under the Communications Act of\n1934 to refuse to grant broadcasting licenses on the ground that the ownership of the proposed\nfacilities is in, or in common with, a newspaper.\nIt is doubtful that Congress has the power to broaden the Act to provide the FCC with such authority.\nSuch a provision would not violate the First Amendment clauses protecting the freedom of speech and\nof the press, but it would probably be held arbitrary and violative of the Fifth Amendment.\n\nJanuary 6, 1937\n\nTHE PRESIDENT\nTHE WHITE HOUSE\nMy Dear Mr. President:\nReferring to the inquiry as to whether the Federal Communications Commission under the present Act* may refuse to grant broadcasting licenses on the\nground that the ownership of the proposed facilities is in, or in common with, a\nnewspaper, and, if this is answered in the negative, as to whether the insertion of\nsuch provision in the Act would be within the power of the Congress, I hand you\nherewith a brief memorandum.**\nI think the answer to the first part of the inquiry is a definite \xe2\x80\x9cno.\xe2\x80\x9d I have more\ndoubt on the question of the power of Congress so to broaden the Act.\nSuch a regulation could be enacted only under the Commerce Clause. While\ncongressional power under this clause is plenary, it must be exercised in a manner\nto attain permitted ends, i.e., regulation of interstate broadcasting and not ownership as such. The case of R.R. Retirement Bd. v. Alton R.R. Co., 295 U.S. 330\n(1935), points a limit to congressional powers even under the Commerce Clause.\nThe closest analogy is the Hepburn Commodities Amendment to the Interstate\nCommerce Act, forbidding transportation of carrier-owned freight. This was reluctantly upheld after the Supreme Court drastically curtailed its obvious meaning.\nUnited States v. Del. & Hudson Co., 213 U.S. 366 (1909).\nI do not believe such a provision would violate the clauses protecting the freedom of speech and of the press.\nTo uphold the separation of newspapers from radio broadcasting privileges, we\nwould need to support the proposition that separation tended toward equality of\nopportunity in the dissemination of news; or, to phrase it in terms of monopoly of\n*\nEditor\xe2\x80\x99s Note: The \xe2\x80\x9cAct\xe2\x80\x9d to which this letter opinion refers is the Communications Act of 1934,\nPub. L. No. 73-416, \xc2\xa7\xc2\xa7 301\xe2\x80\x93329, 48 Stat. 1064, 1081\xe2\x80\x9392.\n**\nEditor\xe2\x80\x99s Note: The referenced memorandum begins on page 5 and is dated approximately one\nmonth earlier.\n\n3\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\ninterstate communication facilities, we would need to make it clear that to permit\nthe newspapers, the great organs of information now existent, to draw to themselves another great instrumentality of news service might lead to an undesirable\ncontrol or monopoly of this essential public service. If this conclusion were wellfounded and if the drastic measure of absolute separation was reasonably necessary to achieve the end in view, the statute would probably come within the\ncommerce power of Congress.\nMy opinion is that if this proposal were enacted into law it would probably be\nheld arbitrary and violative of the Fifth Amendment. A reasonable argument for its\nvalidity, however, can be made.*\nHOMER S. CUMMINGS\nAttorney General\n\n*\nEditor\xe2\x80\x99s Note: In FCC v. Nat\xe2\x80\x99l Citizens Comm. for Broad., 436 U.S. 775 (1978), the Supreme\nCourt ruled that the FCC had authority under the Communications Act to issue a regulation prospectively barring formation or transfer of co-located newspaper-broadcast combinations. The Court also\nupheld the regulation against challenge under the First Amendment and the Administrative Procedure\nAct.\n\n4\n\n\x0cAuthority of the FCC to Deny a Broadcast License to a Newspaper Owner\nDecember 9, 1936\n\nMEMORANDUM FOR THE SOLICITOR GENERAL\nI. Is It at Present Within the Power of the Federal\nCommunications Commission to Refuse Licenses to\nRadio Stations Owned by Newspapers?\nThe authority to regulate radio broadcasting was conferred upon the Federal\nCommunications Commission by the Communications Act of 1934, Pub. L. No.\n73-416, \xc2\xa7\xc2\xa7 301\xe2\x80\x93329, 48 Stat. 1064, 1081\xe2\x80\x9392 (codified at 47 U.S.C. \xc2\xa7\xc2\xa7 301\xe2\x80\x93329).\nPreviously the regulating authority had been vested in the Federal Radio Commission and the Secretary of Commerce by the Radio Act of 1927, Pub. L. No. 69632, 44 Stat. 1162.\nAmong the duties of the Communications Commission is that of issuing licenses to radio broadcasting stations. Section 307(a) of the Communications Act\nprovides:\nThe Commission, if public convenience, interest, or necessity will be\nserved thereby, subject to the limitations of this chapter, shall grant\nto any applicant therefor a station license provided for by this chapter.\n47 U.S.C. \xc2\xa7 307(a) (emphasis supplied).\nNo section of the Act imposing this duty specifically authorizes the Commission to refuse to issue a license to a particular station simply because it is owned\nby a newspaper. Quaere, may the Commission deny a request for a license upon\nthe ground that the \xe2\x80\x9cpublic interest, necessity and convenience\xe2\x80\x9d 1 will not be served\nby the participation of the press in the radio business?\nThe phrase \xe2\x80\x9cpublic interest, necessity, and convenience\xe2\x80\x9d does not confer unlimited authority, Fed. Radio Comm\xe2\x80\x99n v. Nelson Bros. Bond & Mortg., 289 U.S. 266,\n285 (1933), and there are no reported decisions in which an application has been\nrejected because the applicant belonged to a particular class of people or was\nengaged in a particular business. However, licenses have been refused upon the\nground that the \xe2\x80\x9cpublic interest\xe2\x80\x9d would not be served by their issuance where the\napplicant was insolvent, Sproul v. Fed. Radio Comm\xe2\x80\x99n, 54 F.2d 444 (D.C. Cir.\n1931); Boston Broad. Co. v. Fed. Radio Comm\xe2\x80\x99n, 67 F.2d 505 (D.C. Cir. 1933),\n1\nThe catch-all phrase \xe2\x80\x9cpublic convenience, interest, or necessity\xe2\x80\x9d is not new, similar words being\nfound in the Radio Act of 1927. Section 9 of that Act provided:\n\nThe licensing authority, if public convenience, interest, or necessity will be served\nthereby, subject to the limitations of this Act, shall grant to any applicant therefor a\nstation license provided for by this Act.\n44 Stat. at 1166.\n\n5\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nwhere the area to be served by the applicant station was already adequately supplied with broadcasting facilities, Goss v. Fed. Radio Comm\xe2\x80\x99n, 67 F.2d 507 (D.C.\nCir. 1933), and where the programs transmitted under a previous license were\nuninteresting or objectionable, KFKB Broad. Ass\xe2\x80\x99n. v. Fed. Radio Comm\xe2\x80\x99n, 47\nF.2d 670 (D.C. Cir. 1931); Trinity Methodist Church, S. v. Fed. Radio Comm\xe2\x80\x99n, 62\nF.2d 850 (D.C. Cir. 1932).2\nWhether or not the policy of insuring the distribution of unbiased information\nvia the radio will serve the public interest sufficiently to warrant the Commission\xe2\x80\x99s\nrefusal to license stations owned by newspapers is a question of fact, which will\nnot be discussed in this memorandum. However, assuming for the purpose of legal\ndiscussion that the policy will serve the public interest, the Commission may,\nconsistent with authority, exclude objectionable members of the press from the\nradio field.\nIn KFKB, a broadcasting unit, owned and operated by a physician, applied to\nthe Commission for a renewal of its license. The evidence showed that the station\nwas operated solely for the benefit of the physician-owner and that a considerable\nportion of the broadcasting period was devoted to \xe2\x80\x9cquack\xe2\x80\x9d medical programs, in\nwhich certain prescriptions, known only by numbers and sold exclusively by drug\nstores owned by the physician, were recommended to persons who had written\nletters describing their symptoms and asking for medical advice. The Commission\nin refusing the request expressed the opinion that such programs were detrimental\nto the public health and did not serve the public interest. 47 F.2d at 671. Upon\nappeal, the ruling of the Commission was sustained. The court said:\nWhen Congress provided that the question whether a license should\nbe issued or renewed should be dependent upon a finding of public\ninterest, convenience, or necessity, it very evidently had in mind that\nbroadcasting should not be a mere adjunct of a particular business\nbut should be of a public character. Obviously, there is no room in\nthe broadcast band for every business or school of thought.\nId. at 672.\nIt was contended by the applicant station that the refusal to issue the license\nbecause of the nature of past programs amounted to censorship in violation of\nsection 326 of the Communications Act. Id. That section reads as follows:\nNothing in this chapter shall be understood or construed to give the\nCommission the power of censorship over the radio communications\nor signals transmitted by any radio station, and no regulation or con-\n\n2\nIt should be noted that all of these exemplary cases were litigated under the Radio Act of 1927.\nHowever, it is submitted that they are on point because the licensing provision of the Act is identical\nwith that of the Communications Act.\n\n6\n\n\x0cAuthority of the FCC to Deny a Broadcast License to a Newspaper Owner\n\ndition shall be promulgated or fixed by the Commission which shall\ninterfere with the right of free speech by means of radio communication. No person within the jurisdiction of the United States shall utter\nany obscene, indecent, or profane language by means of radio communication.\n47 U.S.C. \xc2\xa7 326.\nIn overruling the contention the court said:\nAppellant contends that the attitude of the commission amounts to\na censorship of the station contrary to the provisions of section 29 of\nthe Radio Act of 1927 (47 U.S.C.A. \xc2\xa7 109). This contention is without merit. There has been no attempt on the part of the commission\nto subject any part of appellant\xe2\x80\x99s broadcasting matter to scrutiny\nprior to its release. In considering the question whether the public interest, convenience, or necessity will be served by a renewal of appellant\xe2\x80\x99s license, the commission has merely exercised its undoubted\nright to take note of appellant\xe2\x80\x99s past conduct, which is not censorship.\n47 F.2d at 672. Further, in Nelson Bros., the Court indicated that the \xe2\x80\x9cpublic\ninterest, necessity, and convenience\xe2\x80\x9d requirement entailed a supervision of the\n\xe2\x80\x9cscope, character, and quality of services\xe2\x80\x9d rendered by the radio. 289 U.S. at 285.\nIn Trinity Methodist, station KGEF of Los Angeles, California, applied for a\nrenewal of its license. The request was denied because the evidence showed that\nthe station was owned and dominated by a Methodist minister who had twice been\nconvicted of contempt of court because of statements broadcast through this\nstation, that its facilities had been used for bitter attacks on the Catholic Church\nand the Jewish race, and that the programs were generally sensational rather than\ninstructive. The ruling was sustained by the court of appeals on the ground that the\npublic interest was served by the denial of the license. 62 F.2d at 852.\nIt was argued that the Commission\xe2\x80\x99s refusal to renew the license because of the\nnature of the programs transmitted under the prior permit interfered with the\nconstitutional right of free speech guaranteed by the First Amendment. Id. at 851.\nHowever, the contention was overruled, and the court said:\nIf it be considered that one in possession of a permit to broadcast\nin interstate commerce may, without let or hindrance from any\nsource, use these facilities, reaching out, as they do, from one corner\nof the country to the other, to obstruct the administration of justice,\noffend the religious susceptibilities of thousands, inspire political\ndistrust and civic discord, or offend youth and innocence by the free\nuse of words suggestive of sexual immorality, and be answerable for\nslander only at the instance of the one offended, then this great sci-\n\n7\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nence, instead of a boon, will become a scourge, and the nation a\ntheater for the display of individual passions and the collision of personal interests. This is neither censorship nor previous restraint, nor\nis it a whittling away of the rights guaranteed by the First Amendment, or an impairment of their free exercise. Appellant may continue to indulge his strictures upon the characters of men in public office. He may just as freely as ever criticize religious practices of\nwhich he does not approve. He may even indulge private malice or\npersonal slander\xe2\x80\x94subject, of course, to be required to answer for the\nabuse thereof\xe2\x80\x94but he may not, as we think, demand, of right, the\ncontinued use of an instrumentality of commerce for such purposes,\nor any other, except in subordination to all reasonable rules and\nregulations Congress, acting through the Commission, may prescribe.\n62 F.2d at 852\xe2\x80\x9353.\nIf the Commission should refuse to issue an original license to a station simply\nbecause it was owned by a newspaper, an objection that the order deprived the\napplicant of his property without due process of law could be successfully\ninterposed. Even granting the public propriety of the policy of distributing\nunbiased information, it can hardly be assumed that every newspaper applicant\nwill operate its station in a manner calculated to offend the policy, when it is a\nmatter of common knowledge that many papers are scrupulously careful to publish\naccurate and uncolored accounts of the news of the day. The participation of such\npapers in the radio broadcasting business would promote the Commission\xe2\x80\x99s\npolicy, and their exclusion without a trial would be arbitrary and unreasonable.\nThis arbitrary interference with desirable members of the press can be avoided\nby a plan of probation. The period during which the license to broadcast shall be\neffective is within the Commission\xe2\x80\x99s discretion, provided it does not exceed three\nyears. 47 U.S.C. \xc2\xa7 307(d). By restricting the original license to a period of relatively short duration, the Commission could put each applicant on trial, and, if its\nbroadcasting tactics offend the policy, a renewal permit may be denied. Such a\nplan would not only meet the due process test of reasonableness but it would also\nbe expedient and consistent with authority. Trinity Methodist, 62 F.2d 850; KFKB,\n47 F.2d 670.\nIn conclusion, the ultimate answer to the question of the Commission\xe2\x80\x99s power\nto refuse to license newspaper-owned stations is dependent upon whether or not\nthe policy of insuring the distribution of unbiased information will serve the public\ninterest. Assuming an affirmative answer to this question of fact, it is apparent that\nthe Commission may refuse to renew the licenses of stations who have abused the\npolicy under a prior permit, but there are constitutional objections to a refusal\nwhere the applicant has had no trial.\n\n8\n\n\x0cAuthority of the FCC to Deny a Broadcast License to a Newspaper Owner\n\nII. Would the Statute Authorizing the Federal Communications\nCommission to Refuse to License Radio Stations Owned by\nNewspapers Be Constitutional?\nRadio communication constitutes interstate commerce and is subject to regulation by the federal government. In Fisher\xe2\x80\x99s Blend Station, Inc. v. Tax Comm\xe2\x80\x99n of\nWash., 297 U.S. 650 (1936), the United States Supreme Court said:\nBy its very nature broadcasting transcends state lines and is national\nin its scope and importance\xe2\x80\x94characteristics which bring it within\nthe purpose and protection, and subject it to the control, of the commerce clause.\nId. at 655.\nThe power of Congress to regulate interstate commerce has been held to\ninclude the power to prohibit, in certain cases, the interstate movement of persons\nor things. For example, Congress lawfully forbade the interstate transportation of\nlottery tickets, Champion v. Ames, 188 U.S. 321 (1903), of diseased livestock,\nMissouri, Kan. & Tex. Ry. v. Haber, 169 U.S. 613 (1898), of adulterated or\nmisbranded foods, Hipolite Egg Co. v. United States, 220 U.S. 45 (1911), of white\nslaves, Hoke v. United States, 227 U.S. 308 (1913), of prize fight films, Weber v.\nFreed, 239 U.S. 325 (1915), of intoxicants outlawed by the state of destination,\nClark Distilling Co. v. W. Md. Ry., 242 U.S. 311 (1917), and of stolen automobiles, Brooks v. United States, 267 U.S. 432 (1925).\nIn all these exemplary cases the power sustained was addressed directly to the\ninterstate transportation of an inherently dangerous person or thing. The prohibitions did not extend to the ownership of the subject of commerce or the means of\ntransportation. The proposed statute, however, would go beyond a regulation of\nthe actual movement of commerce and deny a newspaper the privilege of owning\nan instrument of interstate communication.\nThe power of Congress to regulate interstate commerce extends only to that\ncommerce which is defined as \xe2\x80\x9cintercourse for the purpose of trade\xe2\x80\x9d and includes\nthe transportation, purchase, sale, and exchange of goods between citizens of\ndifferent states. Carter v. Carter Coal Co., 298 U.S. 238, 298 (1936). There is no\nauthority to sustain an extension of the power to include the ownership of the\nmeans of interstate communication, and a recent decision, id. at 298\xe2\x80\x93303,\nconstruing the scope of the Commerce Clause, is concrete evidence of the narrow\nconfines to which the regulatory power is restricted.\nAssuming, however, that the proposed statute would be within the commerce\npower, there remains the question of the propriety of the regulation. It is axiomatic\nthat the federal government, in the exercise of any delegated power, such as the\npower to regulate interstate commerce, is subject to the constitutional limitation of\ndue process. Del., Lackawanna & W.R.R. v. United States, 231 U.S. 363 (1913);\n\n9\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nHamilton v. Ky. Distilleries & Warehouse Co., 251 U.S. 146 (1919). The requirements of due process are satisfied if the regulation is not unreasonable, arbitrary,\nor capricious and if it has a real and substantial relation to the object sought to be\nattained. Nebbia v. New York, 291 U.S. 502 (1934).\nThe result of any application of the due process test is largely dependent upon\nthe facts adduced in each particular case. In his opinion in Nebbia, Mr. Justice\nRoberts indicates that the United States Supreme Court is aware of this factor, for\nhe wrote:\nIt results that a regulation valid for one sort of business, or in given\ncircumstances, may be invalid for another sort, or for the same business under other circumstances, because the reasonableness of each\nregulation depends upon the relevant facts.\nId. at 525.\nThus, any decision upon the validity of the proposed statute will depend largely\nupon what data the Commission could produce to prove that it is in the public\ninterest to exclude newspapers from the radio broadcasting field. The due process\nrequirements could probably be satisfied if there are facts to show that newspapers\nin the past have abused the broadcasting privilege by using the facilities of their\nstations to transmit objectionable programs, or that the ownership of broadcasting\nstations by the press is inherently dangerous to the public health, safety, or morals.\nIt should be noted also that a newspaper does not have an absolute right to\nengage in radio broadcasting. The privilege of engaging in a particular business or\noccupation is a property right, of which a citizen may not be deprived without due\nprocess of law, Louis K. Liggett Co. v. Baldridge, 278 U.S. 105 (1928), but there\nis no constitutional guarantee that the privilege will be unrestricted, Nebbia, 291\nU.S. 502. In the interest of the public welfare, certain types of business have been\nprohibited altogether, Powell v. Pennsylvania, 127 U.S. 678 (1888), while participation in others has been conditioned, Dent v. West Virginia, 129 U.S. 114\n(1889). Due process only requires that the regulation be reasonable. Smith v.\nTexas, 233 U.S. 630 (1914).\nThe possibility that the proposed statute will violate the First Amendment is\nentitled to but little consideration. Since the scope of the Act does not extend\nbeyond the exclusion of a certain class of people from the broadcasting business,\nthere would be no interference with the right of free speech. If the Act entailed a\ncensorship of the material transmitted or denied a newspaper the right to express\nits editorial policies by way of the radio, the interference would be apparent, but as\nproposed it contains no provisions of this nature. At most, ownership, not usage, is\nregulated.\nFurther, broadcasting is not an incident of the newspaper business, and the\nprohibitory provisions of the statute would not affect a newspaper until it had left\nits usual sphere of activity. Even then, the newspaper would be subject to regula-\n\n10\n\n\x0cAuthority of the FCC to Deny a Broadcast License to a Newspaper Owner\n\ntion only in its capacity as a radio station owner, and any interference would be\nwith the freedom of the radio broadcasting, not with the freedom of the press.\nIn conclusion, it is submitted that the proposed statute is probably unconstitutional because it attempts to regulate matters beyond the scope of interstate\ncommerce. Even though the Commerce Clause should be said to embrace the\npower to enact the proposed statutes, the regulation might not meet the requirements of due process, and it undoubtedly would be subjected to wide publicity and\nbitter criticism. Therefore, it is suggested that the most expedient means of\nhandling the problem is to adopt the plan of probation heretofore discussed, which\nmay be put into operation under the present Act.\nNEWMAN A. TOWNSEND, JR.*\nSpecial Attorney\nOffice of the Assistant Solicitor General\n\n*\nEditor\xe2\x80\x99s Note: The author was a judge who served on the staff of the Office of the Assistant\nSolicitor General for many years, including as Acting Assistant Solicitor General from 1941\xe2\x80\x9342. See\nRobert H. Jackson, That Man: An Insider\xe2\x80\x99s Portrait of Franklin D. Roosevelt 95 (John Q. Barrett ed.,\n2003) (describing Townsend as \xe2\x80\x9ca hard-headed, conservative, and forthright former judge\xe2\x80\x9d).\n\n11\n\n\x0c'


b'Constitutionality of the McGovern-Hatfield Amendment\nAlthough it is difficult to resolve with confidence the substantial arguments that can be made for and\nagainst a proposed amendment seeking to employ Congress\xe2\x80\x99s power of the purse to end hostilities in\nVietnam, the Administration should oppose the amendment as a matter of policy, if not as one of\nconstitutional law.\n\nJune 2, 1970\n\nMEMORANDUM OPINION FOR A MEMBER OF THE STAFF\nNATIONAL SECURITY COUNCIL\nBy memorandum of May 27 you requested the views of the Department of\nJustice on the McGovern-Hatfield Amendment.* The Amendment consists of\nseveral separate sections, but the principal one is subsection (a), to which I will\ndevote primary attention.\nI. Subsection (a)\nThis subsection provides that after December 31, 1970, any funds appropriated\nfor use in Vietnam may be expended only\nas required for the safe and systematic withdrawal of all United\nStates military personnel, the termination of United States military\noperations, the provision of assistance to South Vietnam in amounts\nand for purposes specifically authorized by the Congress, the\nexchange of prisoners, and the arrangement of asylum for Vietnamese who might be physically endangered by the withdrawal of United States forces.\nThe subsection further provides\nthat the withdrawal of all United States military personnel from\nVietnam shall be completed no later than June 30, 1971, unless the\nCongress, by joint resolution, approves a finding by the President\nthat an additional stated period of time is required to insure the safety of such personnel during the withdrawal process.\n\n*\nEditor\xe2\x80\x99s Note: The McGovern-Hatfield Amendment was offered as an amendment (No. 605) to\nH.R. 11,723, 91st Cong., a military procurement authorization bill. 116 Cong. Rec. 13,547 (Apr. 30,\n1970). The amendment underwent multiple revisions during the course of consideration of H.R.\n11,723. The version addressed in this memorandum opinion appears to have been Amendment 609,\nsubmitted and referred to the Senate Committee on Armed Services on May 5, 1970. 116 Cong. Rec.\n14,111. Another version (Amendment No. 862) was ultimately rejected on the floor of the Senate by a\nroll-call vote of 55\xe2\x80\x9339. 116 Cong. Rec. 30,683 (Sept. 1, 1970).\n\n339\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nCongress by this subsection is attempting to employ its power of the purse to\nend hostilities in Vietnam, on presumably whatever terms can be negotiated, if any\ncan, before the deadline set in the Amendment for final withdrawal of American\ntroops.\nThe constitutional question raised by this proposed amendment is both fundamental and novel: Does Congress have, in addition to the power to declare war,\nthe power to terminate hostilities and in effect \xe2\x80\x9cmake peace\xe2\x80\x9d on its initiative rather\nthan that of the President? Fundamental as the constitutional question is, it is one\nthat has neither been authoritatively resolved nor indeed fully discussed or debated\nup until this time. Within the time limits specified in your memorandum, I can do\nno more than sketch the arguments on both sides, which suggest that an answer\neither way on the question is not free from difficulty.\nOn the one hand, supporters of the constitutionality of the McGovern-Hatfield\nAmendment point to the fact that Congress alone is given power to appropriate\nmoney, and that therefore Congress may attach to its appropriations such conditions as it sees fit. They also point to the fact that the war power is shared between\nthe President and Congress, with Congress alone having the power to declare war.\nThey conclude that the existence of these two powers is sufficient to validate, as a\nmatter of constitutional law, the principal provision of the Hatfield-McGovern\nAmendment.\nOpponents point to the fact that all of the wars in our history have been concluded by some form of executive initiative\xe2\x80\x94a surrender in the field, an armistice,\nor a treaty of peace, negotiated by the President and submitted to the Senate for\nratification in accordance with the constitutional provisions governing treaties. In\nthis connection, they note that in the debates in the Constitutional Convention, on\nthe same day as Congress was granted the power \xe2\x80\x9cto declare war,\xe2\x80\x9d Pierce Butler of\nSouth Carolina moved \xe2\x80\x9cto give the Legislature power of peace, as they were to\nhave that of war.\xe2\x80\x9d 2 The Records of the Federal Convention of 1787 319 (Max\nFarrand ed., 1966). This motion was defeated by vote of the delegates, ten states to\nnone. Id. Oliver Ellsworth of Connecticut, during the debate, made the comment\nthat \xe2\x80\x9cWar also is a simple and overt declaration. [P]eace attended with intricate &\nsecret negociations.\xe2\x80\x9d Id.\nOpponents of the constitutionality of the measure also contend that while Congress may unquestionably refuse to make any appropriation at all for the support\nof the armed forces, it may not condition the appropriations it does make in such a\nmanner as to violate some other provision of the Constitution. Lovett v. United\nStates, 328 U.S. 303 (1946).1\n\n1\n\xe2\x80\x9cIt would hardly be maintained that Congress could end a foreign war by declaring peace in the\nmidst of a campaign while the war is being actively waged on both sides.\xe2\x80\x9d John M. Mathews, The\nTermination of War, 19 Mich. L. Rev. 819, 828 (1921).\n\n340\n\n\x0cConstitutionality of the McGovern-Hatfield Amendment\n\nA satisfactory resolution of these constitutional arguments cannot be made in\nthe time available, and very likely could not be made with any confidence even\nwere a good deal more time available. Questions of the distribution of power in\nthe field of external affairs are not traditionally justiciable, and their settlement is\nfrequently accomplished in the political arena, rather than in the judicial forum.\nI venture to point out, however, that the same arguments which suggest that this\nmeasure may have constitutional difficulties likewise suggest that the Administration ought to oppose it as a matter of policy, if not as one of constitutional law.\nThe chances for any sort of \xe2\x80\x9cpeace with honor\xe2\x80\x9d which the President has indicated\nto be his goal must depend both on secret negotiations, and upon reasonably\nflexible availability of military force as a method to compel concessions by the\nenemy. The adoption of a fixed calendar date for withdrawal of our forces from\nthe field may well be a prescription for peace, but it is virtually certain that it will\nbe a prescription for peace on the enemy\xe2\x80\x99s terms. The framers of the Constitution\nwere men of affairs, and the debates make it rather clear that they saw the ultimate\nfallacy of congressional initiative as a means for ending the war\xe2\x80\x94it requires the\nexposure of our country\xe2\x80\x99s \xe2\x80\x9chole card\xe2\x80\x9d without the enemy having to expose his.\nOnly if the Administration is prepared to say at this moment that the policy of\nVietnamization is sufficiently advanced so that American troops may begin in the\nnear future an inflexible schedule of withdrawal could this Amendment be said to\ndo anything other than guarantee the failure of the Vietnamization program. If the\nother nations involved know in advance that the President, Cinderella-like, will\nturn into a pumpkin on a date fixed by Congress, his proposals cannot be expected\nto receive serious attention at the negotiating table.\nSince the constitutional and policy issues involved in this section of the\nAmendment seem to me to be inextricably intertwined, it is not possible to state\nthat the Department\xe2\x80\x99s recommendation is based wholly on constitutional grounds.\nHaving said that, I recommend that the Administration oppose this subsection of\nthe Hatfield-McGovern Amendment in Congress, and that the President veto the\nAmendment if it be adopted by both houses of Congress. To do less means, I\nthink, surrender of presidential initiative to Congress in a manner that cannot but\nhave the most serious adverse consequences to our efforts in Southeast Asia.\nII. Subsection (b)\nThis subsection would expand the prohibition adopted last year against military\noperations in Laos. Since the President agreed to the earlier provision, since Laos\nis neither a theater in which American troops are presently engaged in combat nor\na staging area for enemy attack, and since his constitutional power to repel attack\nand protect the safety of United States troops in the field is not affected by such a\nprovision, it appears relatively unobjectionable.\n\n341\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nIII. Subsection (c)\nThis subsection is a rough equivalent of the Cooper-Church Amendment,*\nwhich the Department has previously advised you is, in its opinion, of very\ndoubtful constitutionality, and should be opposed for that reason.\nWILLIAM H. REHNQUIST\nAssistant Attorney General\nOffice of Legal Counsel\n\n*\nEditor\xe2\x80\x99s Note: The Cooper-Church Amendment prohibited the use of funds to put ground combat\ntroops or U.S. advisers in Cambodia. It was introduced as an amendment to H.R. 19,911, 91st Cong.,\nand ultimately became law as section 7 of the Special Foreign Assistance Act of 1971, Pub. L. No. 91652, 84 Stat. 1942, 1943.\n\n342\n\n\x0c'


b'Applicability of Executive Order No. 12976 to the FDIC\nN either the F ederal D eposit Insurance C orporation\xe2\x80\x99s broad discretion to determ ine the com pensation\no f its em p lo y ees nor its status as an independent agency exem pts the FD IC from the requirem ents\no f E x ecu tiv e O rd er No. 12976.\n\nApril 22, 1997\nM\n\nem o ran d u m\n\nO f f ic e\n\nO p in io n\nof\n\nM\n\nfo r t h e\n\nG en era l C ou n sel\n\nanagem ent and\n\nB udget\n\nYou have asked us to consider whether Executive Order No. 12976, 3 C.F.R.\n412 (1996), \xe2\x80\x9c Compensation Practices of Government Corporations\xe2\x80\x9d (\xe2\x80\x9c E.O.\n12976\xe2\x80\x9d ), applies to the Federal Deposit Insurance Corporation (\xe2\x80\x9c FDIC\xe2\x80\x9d ). E.O.\n12976 provides that government corporations should not pay bonuses in excess\nof those authorized by \xc2\xa74501 through \xc2\xa74507 of Title 5 of the United States Code.\nIt also directs government corporations to submit certain compensation informa\xc2\xad\ntion to the Office of Management and Budget ( \xe2\x80\x9c OMB\xe2\x80\x9d ) and requires wholly\nowned government corporations to refrain from approving bonuses in excess of\nthe statutory bonus ceilings until OMB has had an opportunity to review the\ninformation. The FDIC maintains that E.O. 12976 does not apply to it because\nit has statutorily vested broad discretion to determine the compensation of its\nemployees and because it is an independent agency.1 As we explain below, neither\nof these premises supports the conclusion that E.O. 12976 is inapplicable to the\nFDIC. Accordingly, we believe that E.O. 12976 applies to the FDIC.\nI.\n\nPresident Clinton issued E.O. 12976 on October 5, 1995, to \xe2\x80\x9c improve the\ninternal management of the executive branch.\xe2\x80\x9d E.O. 12976, \xc2\xa78. The order does\nnot require that government corporations comply with statutory bonus ceilings.\nRather, it states that government corporations should comply with those bonus\nceilings and requires government corporations to report certain compensation prac\xc2\xad\ntices to OMB for review.\nThe first section contains a \xe2\x80\x9c Statement of Presidential Principles.\xe2\x80\x9d It provides\nthat \xe2\x80\x9c [g]ovemment corporations subject to this Order should not pay bonuses in\nexcess of those authorized by sections 4501 through 4507 of title 5, United States\nCode, except as otherwise specifically provided by law.\xe2\x80\x9d E.O. 12976, \xc2\xa7 1\n(emphasis added). As the underscored language suggests, this section merely\n1 See Letter for Franklin D Raines, Director, OMB, from William F Kroener, 111, General Counsel, FDIC (Dec.\n2, 1996); Letter for John A. Koskmen, Deputy Director for Management, OMB, from Ricki Heifer, Chairman, FDIC\n(Mar 28, 1996).\n\n76\n\n\x0cApplicability o f Executive Order No. 12976 to the FDIC\n\nexpresses a policy against bonuses in excess of the statutory ceilings but does\nnot mandate compliance with those limits.2\nThe remainder of the Order imposes certain reporting requirements on govern\xc2\xad\nment corporations and certain review procedures on OMB. Specifically, the second\nsection directs wholly owned government corporations to submit compensation\ninformation as directed by the Director of OMB \xe2\x80\x9c [b]efore taking action to approve\nany bonus in excess of those authorized in section 4502 of title 5, United States\nCode.\xe2\x80\x9d E.O. 12976, \xc2\xa7 2(a); \xc2\xa76 ( \xe2\x80\x9c Section 2 shall apply only to wholly owned\ncorporations except such corporations that have specific authority to approve\nbonuses in excess of those authorized under section 4501 through 4507 of title\n5, United States Code\xe2\x80\x9d ). In addition, that section instructs wholly owned corpora\xc2\xad\ntions to \xe2\x80\x9c refrain from approving any such bonus until the Director of OMB has\nhad an opportunity to review the information provided by the corporation.\xe2\x80\x9d Id.\n\xc2\xa7 2(a).\nThe third section requires all government corporations subject to the order to\nprovide information \xe2\x80\x9c relating to the compensation practices for senior executives\xe2\x80\x9d\nto OMB in accordance with its instructions for \xe2\x80\x9c when information is to be sub\xc2\xad\nmitted, and the content and form of such information.\xe2\x80\x9d Id. \xc2\xa73(a); \xc2\xa73(c). At a\nminimum, the information must include:\n(1) the compensation plan, procedures, and structure of such cor\xc2\xad\nporation;\n(2) base salary levels, annual bonuses, and other compensation; and\n(3) information supporting the senior executive compensation plan\nand levels.\nId. \xc2\xa7 3(b).\n\nThe fourth section directs OMB, in consultation with the Department of Labor,\nto \xe2\x80\x9c review the information submitted pursuant to section 3, taking into consider\xc2\xad\nation:\xe2\x80\x9d\n(1)\n(2)\n(3)\n(4)\n\nconsistency with statutory requirements;\nconsistency with corporate mission;\nstandards of Federal management and efficiency; and\nequivalent private sector compensation practices.\n\nId. \xc2\xa74.\n2See Robinson Farms Co v. D\'Acqutslo, 962 F2d 680, 684 (7th Cir 1992) ( \xe2\x80\x9c should" is usually precatory,\nwhile \xe2\x80\x9c shall\xe2\x80\x9d is usually mandatory); Harris County Hosp. Dist v. Shalala, 863 F Supp 404, 410 (S D Tex 1994)\n(same), o ff d, 64 F 3d 220 (5th Cir 1995), cf Memorandum for Alan Kreczko, Legal Adviser, National Security\nCouncil, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re WTO Dispute Settlement\nReview Commission Act (Feb 9, 1995) (difficulty created by mandatory \xe2\x80\x9c shall\xe2\x80\x9d language avoided by substitution\nof precatory \xe2\x80\x9c should\xe2\x80\x9d language) This is not to say that the President or Congress could never use the word \xe2\x80\x9c should\xe2\x80\x9d\nwith the intent that it be mandatory rather than precatory, but there is no indication in this case of any such intent\n\n77\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nFinally, the fifth section requires government corporations to \xe2\x80\x9c make available\nthrough public dissemination the information submitted pursuant to section 3 of\nthis order.\xe2\x80\x9d Id. \xc2\xa75.\nII.\nThe FDIC argues that E.O. 12976 does not apply to it for two reasons: (1)\nthe FDIC has broad discretion to determine the compensation of its employees\nunder 12 U.S.C. \xc2\xa7 1819(a)Fifth;3 and (2) it is an independent agency. We believe\nthat neither of these contentions entails the conclusion that E.O. 12976 is inappli\xc2\xad\ncable to the FDIC. First, E.O. 12976 does not restrict the FDIC\xe2\x80\x99s authority to\ndetermine the compensation of its employees. As described above, it does not\nmandate compliance with statutory bonus ceilings or require OMB approval of\nagency bonus awards. With respect to the FDIC, it simply imposes reporting\nrequirements. The waiting period applies only to wholly owned government cor\xc2\xad\nporations,4 and the FDIC is a mixed-ownership corporation. See 31 U.S.C.\n\xc2\xa79101(2)(C) (1994). These procedural reporting requirements do not limit or inter\xc2\xad\nfere with the Board\xe2\x80\x99s discretion to set compensation under \xc2\xa7 1819(a)Fifth.5\nSecond, E.O. 12976 applies to the FDIC, regardless of its status.6 E.O. 12976\nis expressly premised on three specific statutory bases (in addition to the more\ngeneral authority provided by the Constitution and the laws of the United States):\n31 U.S.C. \xc2\xa7\xc2\xa7 1105, 1108, and 1111. In enacting these statutes, Congress authorized\nthe President to request compensation information from all agencies.\nSection 1111 provides:\nTo improve economy and\nernment, the President shall\xe2\x80\x94\n\nefficiency\n\nin\n\nthe\n\nUnited\n\nStates\n\nGov\xc2\xad\n\n(1) make a study of each agency to decide, and may send Congress\nrecommendations, on changes that should be made in \xe2\x80\x94\n3 Section 1819(a)Fifth provides in relevant part: \xe2\x80\x98\xe2\x80\x98To appoint by its Board of Directors such officers and employees\nas are not otherwise provided for in this chapter, to define their duties, fix their compensation, require bonds of\nthem and fix the penalty thereof, and to dismiss at pleasure such officers or employees.\xe2\x80\x9d 12 U.SC. \xc2\xa7 I819(a)Fifth\n(1994) (emphasis added).\n4See E.O. 12976, \xc2\xa7 2(a); \xc2\xa7 6.\n5 Indeed, the reporting requirements are similar to those to which the FDIC already is subject. See 12 U.S.C\n\xc2\xa7 1833b (1994) (requiring the FDIC, \xe2\x80\x9c in establishing and adjusting schedules of compensation and benefits,\xe2\x80\x9d to\ninform several other agencies and Congress \xe2\x80\x9c of such compensation and benefits and . . . seek to maintain com\xc2\xad\nparability regarding compensation and benefits\xe2\x80\x9d ) In any event, \xc2\xa7 1819(a)Fifth only contains a broad grant of authority\nto fix compensation, which is subject to more specific limitations\n6 We do not mean to suggest concurrence in the FDIC\xe2\x80\x99s view of itself as an independent agency. A comprehensive\ndiscussion of the relevant principles appears in The Constitutional Separation o f Powers Between the President and\nCongress , 20 Op. O.L.C 124, 166-70 (1996). For purposes of this memorandum, it is not necessary to decide\nwhat, if any, independence from presidential control the FDIC possesses.\n\n78\n\n\x0cApplicability o f Executive Order No. 12976 to the FDIC\n\n(A) the organization, activities, and business methods of\nagencies;\n(B) agency appropriations;\n(C) the assignment of particular activities to particular serv\xc2\xad\nices; and\n(D) regrouping of services; and\n(2) evaluate and develop improved plans for the organization,\ncoordination, and management of the executive branch of the\nGovernment.\n31 U.S.C. \xc2\xa7 1111 (1994). For purposes of the provisions relevant here, \xe2\x80\x9c agency\xe2\x80\x9d\nis defined as any \xe2\x80\x9c department, agency, or instrumentality of the United States\xe2\x80\x9d\nand includes any \xe2\x80\x9c independent regulatory commission or board.\xe2\x80\x9d 31 U.S.C.\n\xc2\xa7 1101 note (1994) (emphasis added); \xc2\xa7 101 (1994); cf. \xc2\xa7 102 (defining \xe2\x80\x9c executive\nagency\xe2\x80\x9d as \xe2\x80\x9c a department, agency, or instrumentality in the executive branch\nof the United States Government\xe2\x80\x9d ).7 Thus, Congress authorized the President to\nstudy and recommend changes with respect to all federal entities except Congress\nand the Supreme Court.\nE.O. 12976 is an appropriate mechanism for complying with \xc2\xa71111. The\ninformation requested in section 3 of the Order (compensation plan, procedures,\nand structure; compensation levels; related information) enables the President to\nevaluate \xe2\x80\x9c the organization, activities, and business methods\xe2\x80\x9d of agencies such\nas the FDIC, as well as their appropriations needs. Furthermore, the reporting\nrequirements advance the goals of \xc2\xa71111 to \xe2\x80\x9c improve economy and efficiency\nin the United States Government\xe2\x80\x9d by directing OMB to consider the compensation\npractices of government corporations against \xe2\x80\x9c standards of Federal management\nand efficiency\xe2\x80\x9d and \xe2\x80\x9c equivalent private sector compensation practices.\xe2\x80\x9d E.O.\n12976, \xc2\xa73.\nThe reporting requirements also aid the President in carrying out his duties\nunder section 1105. That section directs the President each year to \xe2\x80\x9c submit a\nbudget of the United States Government\xe2\x80\x9d along with \xe2\x80\x9c supporting information.\xe2\x80\x9d\n31 U.S.C. \xc2\xa7 1105(a) (1994). Toward that end, section 1108 requires the head of\neach agency to \xe2\x80\x9c prepare and submit to the President each appropriation request\nfor the agency . . . in the form prescribed by the President under this chapter\nand by the date established by the President.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1108(b)(1) (1994);\n\xc2\xa7 1108(d)(l)-(2) (head of each agency must \xe2\x80\x9c provide information supporting the\nagency\xe2\x80\x99s budget request for its missions by function and subfunction . . . and\n7 The term \xe2\x80\x9c agency\xe2\x80\x9d also includes the Distnct of Columbia government but does not include \xe2\x80\x9c the legislative\nbranch or the Supreme Court \xe2\x80\x9d 31 U S C \xc2\xa7 1101(1) (1994)\n\n79\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\n. . . relate the agency\xe2\x80\x99s programs to its missions\xe2\x80\x9d ). E.O. 12976 prescribes the\nform and date for submitting certain compensation information.\n\nDAWN E. JOHNSEN\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n80\n\n\x0c'


b'Special Deputations of Private Citizens\nProviding Security to a Former Cabinet Member\nThe United States M arshals Service may not grant special deputy status to private citizens hired\nby a former cabinet member. By regulation, the Director o f the Service may confer such status\nonly upon selected federal officers or employees or state and local law enforcement officers.\nAlthough the Attorney General may deputize private citizens, such appointm ents must further\nfederal law enforcem ent functions within the authority o f the M arshals Service. 28 U.S.C.\n\xc2\xa7 569(c).\nA federal law enforcem ent function sufficient to justify the appointment o f special deputy\nmarshals should be determ ined by the Marshals Service in the first instance, on the facts of\neach case in light o f a num ber o f different factors. In this case, no sufficient federal law\nenforcement function exists to permit the Attorney General to deputize these private security\npersonnel.\n\nMarch 18, 1983\nM\n\nem orandum\n\nO p in io n\n\nfor the\n\nA\n\ns s o c ia t e\n\nAttorney G\n\neneral\n\nYou have asked that we examine the authority o f the United States Marshals\nService to provide special deputations to security personnel of a former cabinet\nmember, Mr. A. In addition, you have requested our advice regarding the\nissuance of special deputy badges and credentials to the specially deputized\nsecurity personnel. For the reasons set forth below, we have concluded that the\nMarshals Service lacks the authority to appoint the former cabinet member\xe2\x80\x99s\nstaff as special deputies. We further conclude that on the facts as we understand\nthem the Attorney General also lacks the authority to make the appointments.\nAccordingly, the issuance of badges and credentials need not be considered\nfurther.\n\nI. Factual Background\nIn 1978, the Marshals Service, at the direction of the Deputy Attorney\nGeneral, granted special deputy authority to four private citizens employed by\nMr. A for the purpose of providing him with personal security. According to\nthe Deputy Director of the Marshals Service, the deputations have been re\xc2\xad\nnewed annually with the concurrence of the Department of Justice.\nIn 1982, Mr. A \xe2\x80\x99s assistant sent two letters to the Deputy Director. The first\nletter requested that three members of the former cabinet member\xe2\x80\x99s staff be\ndeputized as special deputy United States marshals. One of the proposed\n\n67\n\n\x0cdeputations is for the purpose of replacing a previously designated special\ndeputy who has left his position. The other two are in addition to the four\npositions previously approved for Mr. A\xe2\x80\x99s staff. The letter states that \xe2\x80\x9cdeputa\xc2\xad\ntion o f these three employees will considerably augment our ability to cope\nwith a relatively new security problem that was the subject of discussions\nbetween [Department officials and Mr. A].\xe2\x80\x9d 1\nThe second letter requested that the Marshals Service issue credentials,\nincluding photographs and imbedded badges, for Mr. A \xe2\x80\x99s security personnel.\nCurrently, these special deputies use their oath of office document to identify\nthemselves. According to Mr. A \xe2\x80\x99s assistant, this form of identification \xe2\x80\x9cis met\nby degrees of dubiousness ranging from skepticism to outright rejection.\xe2\x80\x9d In\norder to avoid a situation of embarrassment to the Marshals Service or to Mr.\nA, as well as confusion and delays that are alleged to create potentially\nhazardous security situations, Mr. A \xe2\x80\x99s assistant requested the issuance of\ncredentials to be used for identification purposes.\nThe Deputy Director of the Marshals Service directed this correspondence to\nyour Office. In a memorandum, the Deputy Director has indicated that on the\noccasion o f each annual renewal, the Marshals Service has expressed reserva\xc2\xad\ntions regarding the propriety of the deputations and what they regard as\n\xe2\x80\x9cquestionable legal authority\xe2\x80\x9d for their issuance. The memorandum further\nstates that the Marshals Service knows of no other circumstance in which the\ndeputation authority has been interpreted to allow the commissioning of private\ncitizens for the purpose of providing personal protection to a private citizen.2\nThe M arshals Service has requested your direction in responding to the\nrequest for the issuance of badges and credentials. This determination seems\nnecessarily to involve the issue whether the special deputations are appropri\xc2\xad\nately granted in the first instance. You have referred these two issues to this Office.\n\nH. Legal Isswies\nA United States marshal has been described as a \xe2\x80\x9cnational peace officer.\xe2\x80\x9d In\nre N eagle, 39 F. 833, 854-55 (C.C. Cal. 1889), tiff\'d, 135 U.S. 1 (1890). In\ngeneral terms, his duties include the \xe2\x80\x9cenforcement, maintenance and adminis\xc2\xad\ntration of the federal authority.\xe2\x80\x9d See United States v. Krapf, 285 F.2d 647,649\n(3d Cir. 1960). More specifically, the marshal\xe2\x80\x99s duties include, among others,\nproviding courtroom security for the federal judiciary;3 providing personal\n1W e understand that the \xe2\x80\x9c new security problem \xe2\x80\x9d involves harassm ent o f Mr. A by a group that is alleged to\nhave d isrupted his schedule by sending false com m unications to the parties with whom he had appointm ents.\nW e are unaw are o f any allegations o f direct threats to Mr. A \xe2\x80\x99s personal security from the group. An FBI\ninvestigation is currently underway in this m atter, and the FBI is also investigating a separate incident\ninvolving a bom b threat from an unknow n source.\n2 T he M arshals Service claim s to recognize the \xe2\x80\x9cuniqueness" o f Mr. A \xe2\x80\x99s circum stances and to understand\nthe co n sid eratio n s w hich have resulted in the decision to grant the deputations. The Service also states,\nhow ever, that it is unaw are o f the actu al occurrence o f any direct physical incident which required the\nintervention o f the form er cabinet m em ber\xe2\x80\x99s security personnel under color o f their authority as United States\nm arshals. W e are sim ilarly unaware o f a n y direct physical threats.\n3 28 U .S.C. \xc2\xa7 569(a); see 28 C.F.R. \xc2\xa7 0 . 111(d).\n\n68\n\n\x0cprotection to prevent disruption of the federal judicial process by criminal\nintimidation;4 assisting in the protection of federal buildings and property;5\nexecuting writs, process, and orders;6 disbursing certain salaries and moneys;7\ncollecting and accounting for fees;8 custody of prisoners;9 and protecting\ncertain Government witnesses.10\nSignificant powers are conferred upon United States marshals and deputy\nmarshals so that they may carry out their functions:\nUnited States marshals and their deputies may carry firearms\nand may make arrests without warrant for any offense against\nthe United States committed in their presence, or for any felony\ncognizable under the laws of the United States if they have\nreasonable grounds to believe that the person to be arrested has\ncommitted or is committing such felony.\n18 U.S.C. \xc2\xa7 3053. Moreover, \xe2\x80\x9cin executing the laws of the United States within\na State,\xe2\x80\x9d they \xe2\x80\x9cmay exercise the same powers which a sheriff of the state may\nexercise in executing the laws thereof.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 570.\nMost important, for purposes of the issue you have raised. United States\nmarshals may \xe2\x80\x9ccommand all necessary assistance to execute their duties.\xe2\x80\x9d 28\nU.S.C. \xc2\xa7 569(b). This section is but the latest version of the authority first\ncontained in \xc2\xa7 27 of the Judiciary Act of 1789, which itself merely reflected the\ncommon law rule that the sheriff had the power to summon the posse comitatus\nand that the citizen had the duty to participate if called upon:\nIt is the duty and the right not only of every peace officer of\nthe United States, but of every citizen, to assist in prosecuting,\nand securing the punishment of, any breach of the peace of the\nUnited States. It is the right, as well as the duty, of every citizen,\nwhen called upon by the proper officer, to act as part o f the\np o sse comitatus in upholding the laws of his country.\nIn re Quarles, 158 U.S. 532,535 (1895). See also In re Neagle, 135 U.S. 1 ,5 6 61 (1890); Ex parte Siebold, 100 U.S. 371, 394-96 (1880); 6 Op. Att\xe2\x80\x99y Gen.\n\n466,471 (1854).\nBy statute, the Attorney General is specifically empowered to supervise and\ndirect the marshals in the performance of public duties.11 The Attorney General\n4 See 28 C.F.R. \xc2\xa7 0 .1 11(e).\n5 See 28 C.F.R. \xc2\xa7 0 .1 1 1(f).\n6 28 U.S.C. \xc2\xa7 569(b).\n1 28 U.S.C. \xc2\xa7 571 provides that the m arshals shall pay the salaries, office expenses, and allow ances of\nU nited States attorneys, their assistants, clerks, and m essengers; the m arshals, their deputies, and clerical\nassistants; the U nited States trustees, their assistants, staff, and other em ployees; and circuit and district\njudges, clerks and deputy clerks o f court, court reporters, and other court personnel.\n8 28 U.S.C. \xc2\xa7 5 7 2 .\n9 Id. \xc2\xa7 573.\n1018 U.S.C. n o te p re c . \xc2\xa7 3 4 8 1 ; i \xc2\xab 28 C.F.R. \xc2\xa70.111(c).\n" 2 8 U.S.C. \xc2\xa7 569(c).\n\n69\n\n\x0cis also specifically empowered to authorize appointment of deputy marshals.12\nThese powers have been delegated to the Director of the United States M ar\xc2\xad\nshals Service.13 The Executive\xe2\x80\x99s common law and statutory power to summon\na p o sse com itatus has, by regulation, been conferred as a power to appoint\nspecial deputy marshals. The Attorney General has also delegated to the\nDirector of the M arshals Service the authority \xe2\x80\x9cto deputize selected officers or\nemployees of the United States to perform the functions of a U.S. deputy\nmarshal in any district designated by the Director, and to deputize whenever\nthe needs o f the U.S. Marshals Service so require selected State or local law\nenforcement officers to perform the functions in any district designated by the\nDirector.\xe2\x80\x9d 28 C.F.R. \xc2\xa7 0.112.\n\nIII. Discussion\nA. H istorical P ractice\n\nThe M arshals Service regularly receives requests for special deputations.\nThe authority o f a United States marshal is the easiest and possibly the only\npractical legal means to carry firearms interstate or through airport security\ncheckpoints and on board commercial airline flights. The Marshals Service has\nrepeatedly taken the position that the use of the special deputation authority\nshould be limited to those circumstances where the United States marshal\nneeds the deputations in order to accomplish his or her specific mission. This\nphilosophy is reflected in the current regulation which authorizes deputation\nonly of selected officers or employees of the United States or selected State or\nlocal law enforcement officers when the needs of the Marshals Service so\nrequire. See 28 C.F.R. \xc2\xa7 0.111.\nThese legal and policy considerations have been the basis for a number of\nrefusals to grant or extend special deputy authority. A prior opinion of this\nOffice considered the issue whether the Attorney General has authority to\ndeputize privately employed security guards to facilitate protection of a private\nindividual. That opinion reasoned that a deputy marshal has lawful authority\nonly when he is performing a federal function, and thus the Attorney General\ncould assign the marshal to protect an individual only when a federal function\nwas involved. Finding none in the case of a private citizen, at least when he was\nnot a prospective witness in a federal proceeding, we concluded that no\nstatutory authority existed.\nThere have been requests from others for deputation, which were denied in\ninstances where the Marshals Service had no enforcement authority, notwith\xc2\xad\nstanding that some federal law enforcement function or federal official was\ninvolved. In 1979, the Department received a request from a Congressman,\ninquiring whether private security officers for a Presidential candidate might\n12 T itle 28 U .S.C . \xc2\xa7 562 provides in pertinent part that \xe2\x80\x9c [t]he Attorney General may authorize a U nited\nStates m arshal to ap p o in t deputies."\n13 28 C .F.R . \xc2\xa7 0 .1 1 2 .\n\n70\n\n\x0cbe designated as federal marshals in order to obviate the problem of obtaining\nstate permits to carry firearms. This Office advised the Congressman on behalf\nof the Department that under the regulations and policy of the Department there\nwas no authority to deputize the security officers because the Marshals Service\nhad no role in protecting Presidential candidates.\nSimilarly, in 1978, the Marshals Service determined not to renew the special\ndeputations of officials of fourteen federal departments and agencies. Gener\xc2\xad\nally, such special deputy authority was used to provide personal protection for\nthe head o f the department or agency. At the time, most heads of executive\ndepartments and agencies were not covered by the federal assault statute, 18\nU.S.C. \xc2\xa7 1114.14 It was thus not a federal crime, in most circumstances, to\nthreaten or harm them, and thus, in the view of the Marshals Service, not a\nfederal law enforcement function to protect them.\nThe determination of the Marshal\xe2\x80\x99s Service was endorsed by the Deputy\nAttorney General, who stated:\nThe Marshals Service had correctly observed that the applicable\nstatutes and regulations by their terms limited such deputations\nto circumstances where the special deputy was performing the\nduties of a deputy marshal and \xe2\x80\x9cthe needs of the U.S. Marshals\nService\xe2\x80\x9d required the deputation.\nThe Deputy Attorney General also expressed concern that the special deputa\xc2\xad\ntions might be viewed as directly contravening the intent of Congress by\nproviding authority to make arrests and carry firearms to officers to whom\nCongress specifically had chosen not to grant those powers. Finally, the Mar\xc2\xad\nshals Service had found that it was impossible to control or review the use of\nthe special deputy authority if it was widely conferred. The Service was\nconcerned that it not be held liable for actions over which it has little or no\ncontrol.\nB. The Present Request\n\nThe Marshals Service has advised us that the four special deputations pro\xc2\xad\nvided to the former cabinet member\xe2\x80\x99s staff are the only ones out of 637\ncurrently in force that have been granted for \xe2\x80\x9cprivate persons . . . to provide\nprivate security to a private person.\xe2\x80\x9d 15 In the view of the Marshals Service:\n14 Such coverage is now effectively provided by Pub. L. No. 9 7 -2 8 5 ,9 6 Stat. 1219 (1982), which am ended\n18 U.S.C. \xc2\xa7 351 to m ake it a federal crim e.to kill certain Executive Branch officials and mem bers o f the\nPresident\xe2\x80\x99s staff.\n15 In fact, these deputations appear to be the only ones currently granted to anyone to protect a private\nperson o ther than in the general course o f the m arshal\xe2\x80\x99s duties, for exam ple, the protection o f w itnesses. W ith\nthe lim ited exception o f federal contractor em ployees at certain m ilitary sites, these deputations appear also\nto be the only ones currently conferred upon anyone other than a federal, state, or local law enforcem ent\nofficer. Even w ithin this lim ited exception, there is a specific federal law enforcem ent function being\nperformed.\n\n71\n\n\x0cthe request to deputize a citizen\xe2\x80\x99s bodyguards does not meet any\no f the requirements for special deputation. This is not a law\nenforcement function o f the United States and would clearly\nprovide law enforcement authority to private citizens for private\npurposes not clearly intended by statute or regulation.\nWe agree that the Marshals Service is without explicit authority to grant special\ndeputations to Mr. A \xe2\x80\x99s staff. Pursuant to 28 C.F.R. \xc2\xa7 0.112, the Director of the\nM arshals Service is expressly authorized to confer special deputy status only\nupon selected federal officers o r employees or state and local law enforcement\nofficers. The members of Mr. A \xe2\x80\x99s staff do not meet this qualification.\nA separate question is whether the Attorney General himself has statutory\nauthority to grant special deputations to private citizens. By statute, the Attor\xc2\xad\nney General may authorize appointment of deputy marshals; there is no restric\xc2\xad\ntion to federal, state, or local officials. Notwithstanding the delegation of\nauthority to the Director of the Marshals Service, the Attorney General retains\nat least as much o f the statutory authority as he has not expressly delegated. He\ncould, if the other conditions were satisfied, deputize a private citizen. Such a\npower merely reflects that the power to designate special deputy marshals\noriginated in the power to summon a po sse com itatus , which was, o f course,\ncomposed o f private citizens.\nThe relevant limitation on the Attorney General\xe2\x80\x99s power to appoint special\ndeputies is that such appointments must be in furtherance of the marshal\xe2\x80\x99s\n\xe2\x80\x9cperformance o f public duties.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 569(c). We believe that the marshal\xe2\x80\x99s\n\xe2\x80\x9cpublic duties\xe2\x80\x9d are appropriately construed to mean federal law enforcement\nfunctions within the authority o f the Marshals Service. The Marshals Service\nhas consistently given this interpretation to the scope of its authority. A similar\nconstruction is reflected in 28 C.F.R. \xc2\xa7 0.112 itself, which limits appointment\no f special deputies to circumstances in which \xe2\x80\x9cthe needs of the Marshals\nService so require.\xe2\x80\x9d The interpretation is compelled, we believe, by the nature\no f the m arshal\xe2\x80\x99s authority. A careful reading of cases such as In re Neagle,\nsupra, and Ex p a rte Siebold, supra, indicates that the Attorney General\xe2\x80\x99s\nauthority to assign United States marshals to enforce federal law, including the\nperformance of protective services, is limited to circumstances in which the\nmarshal has lawful authority, that is, where he or she is performing a federal\nlaw enforcement function.\nIt is difficult for us to define with precision what constitutes a sufficient\nfederal law enforcement interest that will justify the use of the special deputy\nauthority. The answer in many, if not most or all, cases will depend on the\nparticular facts. Moreover, we think that the question of sufficiency should be\naddressed by the Marshals Service in the first instance, given the Service\xe2\x80\x99s\nfamiliarity with its functions and allocation of resources. The Service, for\nexample, has defined the condition expressed in 28 C.F.R. \xc2\xa7 0.112, restricting\ndeputations to circumstances in which \xe2\x80\x9cthe needs of the U.S. Marshals Service\nso require\xe2\x80\x9d to mean when the marshal requires the deputations to accomplish\n\n72\n\n\x0chis or her specific mission. Thus it seems to us that the determination when\ndeputation authority is properly conferred must be made with reference to the\nparticular duties of the marshal in practice and his or her ability to perform\nthose duties without further assistance.\nAlthough we cannot draw firm conclusions in the abstract, we think that the\nfollowing factors are relevant in determining the sufficiency of the federal law\nenforcement function: (1) whether, as a matter of law, the marshal has the\nauthority to perform the function that the special deputy will perform;\n(2) whether, as a matter of policy, the function is of sufficient importance to\nfederal law enforcement efforts generally and to the Marshals Service in\nparticular that the marshal would normally undertake to perform the function;\n(3) whether the marshal is unable to perform the function personally because of\nan emergency situation or an unusual demand on the marshal\xe2\x80\x99s resources;\n(4) whether conferring special deputation authority in the particular instance\ncontravenes expressed congressional intent as to the permissible uses of the\nmarshal\xe2\x80\x99s authority, including limitations imposed through the budget process\non the num ber o f m arshals and deputy marshals generally authorized;\n(5) whether the Marshals Service can exercise appropriate control over the\nspecial deputy marshal, given the number of deputations outstanding and the\nparticular function to be performed; and (6) the likelihood and extent of any\npotential liability o f the Marshals Service for the actions of the special deputy.\nThe balancing of these and possibly other factors known to the Marshals\nService will depend on the particular facts.16\n\nConclusion\nAs we have stated, the Marshals Service lacks authority to grant the request\nfor three additional special deputations. Moreover, based upon our understand\xc2\xad\ning of the facts, no sufficient federal law enforcement function exists such that\nthe Attorney General would have the authority to grant the request. In the\nabsence of some additional federal purpose of which we are not aware, we\nrecommend that the M arshal\xe2\x80\x99s Service advise the former cabinet member that\nhis requests have been denied. As far as the three outstanding deputations are\nconcerned, our conclusions herein require at a minimum that the deputations\nnot be renewed upon their expiration. We suggest, in addition, that the M ar\xc2\xad\nshals Service consider revoking the deputations prior to expiration, possibly\n16 We do not conclude that no federal function w ould ever be involved in the protection o f a private citizen.\nSuch a function exists, fo r exam ple, in protecting governm ent w itnesses and possibly o ther participants in the\nfederal ju d icial process. In response to some particular, serious threat o f violation of federal law, federal law\nenforcem ent efforts m ight appropriately include personal protection for other persons as well. We do not\nbelieve that any particular federal law enforcem ent purpose has been the basis for the special deputations o f\nM r. A\xe2\x80\x99s staff in the past. W e are aw are o f the references to the \xe2\x80\x9c new security problem ,\xe2\x80\x9d but it does not appear\nthat this problem presents a sufficient federal interest to justify the requested deputations. If there is some\nspecial federal law enforcem ent purpose o f which w e are not aw are, then the request for the additional\ndeputations m ight be presented to the A ttorney G eneral. We are sure that policy considerations, such as the\npossible liability o f the M arshals Service for the actions o f special deputy marshals, will be taken into account\nin the A ttorney G eneral\xe2\x80\x99s decision at that time.\n\n73\n\n\x0cfollowing a period o f time during which Mr. A\xe2\x80\x99s staff might be able to make\nsome alternative arrangements. Finally, if the deputations are to be continued\nthrough the end of the term for which they have been granted, we suggest that\nthey be reauthorized by the Attorney General. It is our understanding that the\nspecial deputations were conferred by the Marshals Service, with the concur\xc2\xad\nrence o f the Department. As noted above, the Director of the Marshals Service\ndoes not have the authority to deputize private citizens.\nR a lph W . T arr\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n74\n\n\x0c'