b'Procedures for Investigating Allegations Concerning\nSenior Administration Officials\nA proposal w hereby personnel from o n e ag en cy \xe2\x80\x99s Office of Inspector G eneral would conduct an\ninvestigation o f allegations of non-crim inal m isconduct by em ployees o f another agency, or by the\nh ead o f an o th er agency, and report to the P resident\xe2\x80\x99s C ouncil on Integrity and Efficiency, is of\nqu estio n ab le legality.\nT he P resident has inherent authority to supervise and direct the perform ance o f his appointees in\no ffice, and to investigate allegations of possible m isconduct related to that perform ance.\nU nder the In sp ecto r G eneral Act, an Inspector G eneral and his staff are authorized to conduct\ninvestigations into allegations of m isconduct only w hen those allegations involve fraud and abuse\nin th e program s and operations o f th e particular agency in which the office is located.\nAn agency head has authority to investigate allegations of m isconduct against any officer or employee\no f his agency, including the agency\xe2\x80\x99s Inspector G eneral. If under the circum stances he deem s it\np ru d en t, an agency head may request that investigative personnel be detailed from another agency\no n a reim bursable basis to conduct such an investigation, though in such a case the investigative\nauthority o f any such detailed personnel could not exceed his own.\n\nNovember 5, 1982\nMEMORANDUM OPINION FOR THE SPECIAL COUNSEL TO THE\nASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION\nIn accordance with your request, we have reviewed the draft proposal entitled\n\xe2\x80\x9cProcedures for Investigating Allegations Concerning Senior Administration\nOfficials.\xe2\x80\x9d The draft proposal was prepared for the President\xe2\x80\x99s Council on\nIntegrity and Efficiency, and forwarded to you on October 4, 1982, by Joseph\nWright, Chairman of the Council. You indicate that some specific questions were\nraised at the Council\xe2\x80\x99s October 12 meeting relating to the source of authority for\ncertain of the proposed procedures, including the authority to pay the costs of an\ninvestigation. Concern was also expressed over the potential for conflict among\nfederal law enforcement agencies generated by the proposed procedures. Our\nreview indicates that the proposed procedures, as we understand them, are legally\ndeficient in several respects.\nI.\n\nThe procedures set forth in the draft proposal apply whenever the Council or\none of its members receives an \xe2\x80\x9callegation\xe2\x80\x9d concerning an Inspector General, a\n626\n\n\x0cstaff member in an Office of Inspector General, or the head of a department or\nagency represented on the Council.1 Any allegation of criminal conduct re\xc2\xad\nceived, or evidence of criminal conduct \xe2\x80\x9cuncovered\xe2\x80\x9d during the course of an\ninvestigation, will be referred directly to the Department of Justice, as is required\nby 28 U.S.C. \xc2\xa7 535. Under such circumstances, \xe2\x80\x9cthe fact finding for the Council\nwill be terminated until Justice has completed its review.\xe2\x80\x9d\n\xe2\x80\x9cNon-criminal allegations\xe2\x80\x9d2 against an Inspector General, or a presidentially\nappointed Deputy Inspector General, are to be \xe2\x80\x9cbrought to the attention o f\xe2\x80\x99 the\nChairman of the Council. The Chairman, \xe2\x80\x9cin consultation with\xe2\x80\x9d the head of the\nagency to whom the Inspector General reports and the Deputy Attorney General,\nshall request an Assistant Inspector General for Investigations\n(not reporting to the IG in question) to conduct a fact finding for\nthe Chairman of the Council. For the purposes of this fact finding,\nthe AIG (Investigations) will report directly to the Chairman.3\nThe report of the factfinder \xe2\x80\x9cshall be provided directly\xe2\x80\x9d to the Department of\nJustice, the Merit Systems Protection Board, the Office of Government Ethics,\nand the Office of Personnel Management, so that they might determine whether\n\xe2\x80\x9cthere is evidence of any violations of laws or regulations for which they are\nresponsible.\xe2\x80\x9d These agencies are to notify the Chairman of \xe2\x80\x9ctheir findings and the\nactions which they will take.\xe2\x80\x9d The Chairman himself is at this point provided\nwith a \xe2\x80\x9csummary\xe2\x80\x9d of the factfinding. The Chairman, in consultation with the\nhead of the agency to whom the Inspector General reports and the Deputy\nAttorney General, then reports to the Counsel to the President on the results of the\nfactfinding.\nNon-criminal allegations against Office of Inspector General staff, or against\nheads of departments and agencies represented on the Council, are also dealt with\nin the draft proposal. In brief, such allegations are to be referred by the Chairman\nof the Council to the responsible Inspector General for investigation. A copy of\nthe Inspector General\xe2\x80\x99s report is to be provided to the head of the department or\nagency involved, in accordance with \xc2\xa7\xc2\xa7 3(a) and 4(a)(5) of the Inspector General\n1The Council was established as an interagency committee by Executive Order 12301 of March 26, 1981, 46\nFed. Reg 19211 Its 23 members include the Deputy Attorney General, the Director of the Office of Personnel\nM anagement, the Executive Assistant Director of Investigations of the Federal Bureau of Investigation, and all of the\nstatutory Inspectors General except those of the military departments. Under Section 2 of the Executive Order, the\nCouncil is charged wtih developing plans for \xe2\x80\x9ccoordinated government-wide activities which attack fraud and waste\nin government programs and operations," including \xe2\x80\x9cstandards for the management, operation, and conduct of\ninspector general-type activities,\xe2\x80\x9d and policies to ensure \xe2\x80\x9cthe establishment of a corps of well-trained and highly\nskilled auditors and investigators " Section 2(d) directs the Council to \xe2\x80\x9cdevelop interagency audit and investigation\nprograms and projects to deal efficiently and effectively with those problems concerning fraud and waste which\nexceed the capability o r jurisdiction of an individual agency*\xe2\x80\x99\n2 The draft proposal does not give any examples of non-cnminal activity which might be the subject of an\nallegation against an Inspector General. We assume that \xe2\x80\x9cnon-criminal allegations" which could spark an investiga\xc2\xad\ntion might be related directly to the Inspector General\xe2\x80\x99s performance of his statutory functions, or related more\ngenerally to his performance as an officer and employee of the United Stales.\n3 It is not clear from the draft proposal whether some procedure for screening non-criminal allegations is to be\nestablished, or whether (as it would appear from a literal reading of its provisions) each and every allegation brought\nto the attention of the Chairman or members of the Council must be the subject of factfinding by an Assistant\nInspector General for Investigations.\n\n627\n\n\x0cAct of 1978, Pub. L. No. 9 5 ^ 5 2 ,9 2 Stat. 1101,5 U .S.C. App. (Supp. IV 1980).\nIn addition, the Inspector General is required to \xe2\x80\x9cb rief\xe2\x80\x99 the Chairman of the\nCouncil of any \xe2\x80\x9csignificant findings\xe2\x80\x9d resulting from his investigations.4 In the\ncase of allegations against an agency head, the Inspector General is required to\nprovide a copy of his report to the Department of Justice, the Merit Systems\nProtection Board, the Office of Government Ethics, and the Office of Personnel\nManagement. These agencies in turn must determine whether there is evidence in\nthe report of any violation of laws or regulations over which they have respon\xc2\xad\nsibility, and notify the Inspector General and the Chairman of the Council of\n\xe2\x80\x9ctheir findings and the actions which they will take.\xe2\x80\x9d A summary of the Inspector\nG eneral\xe2\x80\x99s factfinding is then provided to the Chairman of the Council, who, in\nconsultation with the Deputy Attorney General, reports to the Counsel to the\nPresident on the results of the investigation.\nThe draft proposal also deals with the \xe2\x80\x9crelease of investigatory files and report\nfindings\xe2\x80\x9d pursuant to Freedom o f Information Act and Privacy Act requests. Such\nrequests are to be \xe2\x80\x9chandled according to established procedures.\xe2\x80\x9d5 With respect\nto Privacy Act requests, the draft proposal directs that \xe2\x80\x9cfor each system of records\ncreated to contain these investigatory files, a regulation should be promulgated\nclaiming the (j)(2) exemption.\xe2\x80\x9d6 The draft proposal further provides that all\ninvestigatory files and the investigative report are to be maintained by \xe2\x80\x9c[t]he IG\xe2\x80\x99s\noffice that conducts the investigation.\xe2\x80\x9d\n\nn.\nThe President has inherent authority to supervise and direct the performance of\nhis appointees in office, and to investigate allegations of possible misconduct\nrelated to that performance. We assume for present purposes that much of this\nauthority could be delegated to the Council or its Chairman. See 3 U.S.C.\n\xc2\xa7\xc2\xa7 301, 302. However, Executive Order 12301 does not accomplish such a\n4 In the case o f allegations against Office o f the Inspector General staff, the Inspector General is required lo\n\xe2\x80\x9c inform\xe2\x80\x9d the Chairman of \xe2\x80\x9cany significant adverse findings\xe2\x80\x9d resulting from his investigation and \xe2\x80\x9cthe subsequent\nfollow-up action.\xe2\x80\x9d It is nol clear whether in th is case the Inspector General is also required to inform the Chairman of\nfindings which are not \xe2\x80\x9cadverse.\xe2\x80\x9d\n5 It is not clear w hether the \xe2\x80\x9cestablished procedures\xe2\x80\x9d referred to are intended to include procedures to be\nestablished by the Council itself.\n6 The d raft\xe2\x80\x99s reference to the \xe2\x80\x9c(j)(2) exem ption\xe2\x80\x9d is apparently to the provision m the Privacy Act of 1974, Pub. L.\n93-579, 88 Slat 1897,5 U .S.C \xc2\xa7 552a, w hich permits certain agencies to promulgate rules lo exempt systems of\nrecords from certain o f the A ct\xe2\x80\x99s provisions. S e e 5 U S C. \xc2\xa7 552a(j)(2). The <j)(2> exemption is available only lo an\nagency \xe2\x80\x9cwhich performs as its principal function any activity pertaining to the enforcement of criminal la w s . . . .\xe2\x80\x9d\nMost Offices of Inspector G eneral, whose principal functions d o not involve the enforcement of criminal laws, may\navail themselves only of the more limited exemption contained in subsection (k)(2) of the Privacy Act for\n\xe2\x80\x9c investigatory material compiled for law enforcement purposes.\xe2\x80\x9d See, e.g , 24 C F.R. \xc2\xa7 16.15(a)(2) (1981)\n(investigative files in H U D \xe2\x80\x99s Office of Inspector General exem pt under \xc2\xa7 552a(k)(2)). Note that, like subsection\n(j)(2), subsection (k)(2) permits an agency to exem pt records from certain of the Act\xe2\x80\x99s accounting requirements, and\nfrom its provisions giving an individual access to information about himself. It does not permit an agency to exempt\nrecords from the A ct\xe2\x80\x99s prohibitions on disclosure of information concerning individuals without their written\nconsent. See \xc2\xa7 552a(b). Circumstances under which such disclosure is permissible are discussed in note 12, infra.\n\n628\n\n\x0cdelegation,7 and the draft proposal does not refer to any other authority relied\nupon for the investigation of non-criminal allegations against an Inspector\nGeneral. It is our understanding that in any event the Council has no funds\nappropriated to it which might be used for this purpose.8\nMoreover, the Inspector General Act authorizes an Inspector General and his\nstaff to conduct investigations into allegations of misconduct only when those\nallegations involve fraud and abuse in the programs and operations of the\nparticular agency or department in which the Office is located.9 Thus, funds\nappropriated for the activities of an Office of Inspector General in one agency\nwould ordinarily not be available to conduct an investigation into allegations of\nmisconduct by personnel in another agency. An Assistant Inspector General\n7 None of the Council\'s functions set forth in \xc2\xa7 2 of the Order include any substantive investigative functions See\nnote 1. supra While \xc2\xa7 2(d) might be interpreted to authorize the Council lo develop procedures lo investigate\nmisconduct by Inspectors General, we cannot construe it also to bestow authonty on the Council actually to conduct\nsuch investigations Such a delegation of substantive presidential authority to an agency not otherwise authonzed to\nengage in such activities would, in our view, have to be explicit See 3 U S C \xc2\xa7 302. The Council Chairman\'s\nresponsibilities under \xc2\xa7 3 of the O rder are confined to establishing procedures for the Council, reporting to the\nPresident and agency heads, and establishing committees of the Council. Section 4(c) describes the Chairman\'s\nanalogous administrative functions in connection with the Coordinating Conference of the Council. We are unaware\nof any other presidential delegation or directive, either to the Council or to its Chairman, relating to the investigation\nof allegations against an Inspector General\n8 Under \xc2\xa7 5(a) of Executive O rder 12301. funds for the \xe2\x80\x9cadministrative support\xe2\x80\x9d of the Council are provided by\nthe Director of the Office of Management and Budget The head of each agency represented on the Council is\nresponsible for providing its representative with \xe2\x80\x9csuch administrative support as may be necessary, in accordance\nwith law, to enable the agency representative lo carry out his responsibilities." See \xc2\xa7 5(b). While 31 U S.C. \xc2\xa7 691\n(1976) permits the expenditure o f appropriated funds \xe2\x80\x9cfor the expenses of committees, boards, o r other interagency\ngroups engaged in authonzed activities of common interest," this statute does not provide authority for an agency\nrepresented on the Council to expend funds on activities which are not already authorized by its existing\nappropnation Section 691 allows an interagency group to continue in existence for longer than a year without\nseparate appropnation for its activities, as would otherwise be required by 31 U.S C \xc2\xa7 696, but does not provide\nany independent authonty for the expenditure o f agency funds See H.R Rep No. 2023, 78th Cong , 2d Sess.\n(1944). The absence of authority in one agency\xe2\x80\x99s Office of Inspector General to investigate another agency\xe2\x80\x99s\nInspector General is discussed in the text and note 9 Similarly, while we have not examined the issue in detail, we\nare unaware of any funds appropriated to the Office of Management and Budget which could be used to conduct the\nsort of investigations contemplated in the proposed draft.\n9 The duties and responsibilities of an Inspector General under \xc2\xa7 4(a) of the Inspector General Act are descnbed\nin terms of \xe2\x80\x9cthe establishment within which his Office is established." As more specifically enumerated in\nparagraphs (1) through (5) of that section, the Inspector General\'s duties and responsibilities are explicitly confined\nto the \xe2\x80\x9c programs and operations\xe2\x80\x9d of his own \xe2\x80\x9cestablishment.\xe2\x80\x9d Similarly, the investigative aulhonty given each\nInspector General under \xc2\xa7 6(a) of the Acl is limited to \xe2\x80\x9cprograms and operations\xe2\x80\x9d of his own \xe2\x80\x9cestablishment \xe2\x80\x9d\nFinally, the Inspector General is authonzed under \xc2\xa7 7(a) of the Acl to investigate only complaints from employees\n\xe2\x80\x9cof the establishment.\xe2\x80\x9d Section 11 (2) of the Act defines an \xe2\x80\x9cestabl ishment\xe2\x80\x9d as the particular agency or department in\nwhich the Office o f Inspector General is established by the Act. The legislative history of the Inspector General Act\nmakes plain that the Inspector General\'s authonty and responsibility were intended to be restncted to the\ninvestigation of fraud and waste in the particular department in which his Office was established. See, e.g , S. Rep.\nNo 1071. 95th Cong , 2d Sess. 7 (1978).\n[T]he legislation gives the llnspector General] no conflicting policy responsibilities which could\ndivert his attention or divide his time, his sole responsibility is to coordinate auditing and investigat\xc2\xad\ning efforts and other policy initiatives designed lo promote the economy, efficiency and effectiveness\nof the programs of the establishment.\na /jo H R. Rep No 584, 95th Cong , 1st Sess 12-14 (1977); 124 Cong Rec. 32033 (1978) (remarks o f Rep\nFountain). The Office of Assistant Inspector General for Investigations is described in \xc2\xa7 3(d)(2) of the Inspector\nGeneral Act as having \xe2\x80\x9cresponsibility for supervising the performance of investigative activities relating to . .\nprograms and operations [of the establishment]." There is no authonty under the Inspector General Act, or under\nany appropriation act of which we are aware, for an Assistant Inspector General for Investigations, or any m em ber of\nan Inspector General\xe2\x80\x99s staff, to conduct investigations which do not \xe2\x80\x9crelate to\xe2\x80\x9d the \xe2\x80\x9cprograms and operations\xe2\x80\x9d o f the\nagency in which he is employed.\n\n629\n\n\x0cmight lawfully be directed by his own agency head to investigate allegations\nagainst the Inspector General to whom he reports, 10or allegations against another\nInspector General on a detail basis." However, an Assistant Inspector General\nhas no authority under the Inspector General Act to conduct an investigation\nwhich is unrelated to his duties and responsibilities under the Act respecting his\nown agency.\nIII.\nWe are less concerned over the provisions in the draft proposal which require\nthat the factfinder\xe2\x80\x99s report in an investigation of non-criminal allegations against\nan Inspector General be sent to the Department of Justice, the Merit Systems\nProtection Board, the Office of Government Ethics, and the Office of Personnel\nManagement. These provisions also come into play in connection with an\ninvestigation of non-criminal allegations against the head of an agency. As long\nas the factfinder is properly authorized to perform the investigation in question,\nand to disclose his report to other federal agencies, there would appear to us no\nreason in law why the named agencies should not receive a copy of the report.12\nMoreover, none of the agencies named has exclusive or even primary jurisdic\xc2\xad\ntion over violations of the non-criminal laws and regulations for which they are\nresponsible. Compare 28 U.S.C. \xc2\xa7 535, which mandates the \xe2\x80\x9cexpeditious[]\xe2\x80\x9d\nreferral of all criminal information or allegations to the Department of Justice.\nIndeed, in some cases jurisdiction over non-criminal allegations attaches only\nafter a matter has first been investigated at the agency level. See, e.g., 5 U.S.C.\n10 Ordinarily, an agency head has authonty, m the exercise of his supervisory responsibilities for the proper\nfunctioning of his agency, to investigate allegations of misconduct in office against an employee or officer of his\nagency, and to take appropriate action in the event those allegations prove well-founded. Funds appropnated for the\ngeneral administration of the agency would be available for this purpose The agency head\xe2\x80\x99s authority extends to the\nagency\xe2\x80\x99s Inspector General, who under \xc2\xa7 3(a) of the Inspector General Acl reports to and is \xe2\x80\x9cunder the general\nsupervision o f \xe2\x80\x99 the head of his agency However, \xc2\xa7 3(a) also enjoins the agency head not to \xe2\x80\x9cprevent or prohibit the\nInspector General from initiating, carrying o u t, or completing any audit or investigation .\n.\xe2\x80\x9d Thus, an agency\nhead might find it awkward to investigate allegations agai nst his Inspector General without violating or appearing to\nviolate this statutory restnction Depending on the nature of the allegations against the Inspector General (e g ,\nwhether the allegations related directly to the Inspector G eneral\xe2\x80\x99s conduct of his statutory duties), the agency head\nmight decide to limit his own personal involvement in the matter, and request the President to direct an investigation\nof the Inspector G eneral\xe2\x80\x99s conduct.\n11 For obvious reasons, an agency head m ight not wish lo rely upon one of the agency\xe2\x80\x99s own Inspector General\xe2\x80\x99s\nstaff to conduct an investigation of the Inspector General himself If appropnate investigative personnel were not\navailable in other pans of his agency, the agency head could request that investigative personnel be detailed from\nanother agency on a reimbursable basis, under authority of the Economy Acl See 31 U S.C. \xc2\xa7 686. Personnel from\nanother agency\xe2\x80\x99s Office o f Inspector General would seem lo be particularly suited for such a detail. We note,\nhowever, that in conducting an investigation in another agency at the request of the head of that agency, personnel\ndetailed from another Inspector General\xe2\x80\x99s Office might be limited to the investigative authonty of the head of the\nagency to which they were detailed Many o f the particular powers given an Inspector General and his staff under\n\xc2\xa7 6(a) o f the Inspector General A ct, such as the power to subpoena documents, may not be available to an agency\nhead conducting his own independent investigation of misconduct by officers of his agency\n12 The Pnvacy Act, 5 U .S C \xc2\xa7 552a, permits disclosure of records containing information about an individual\nwithout his consent in a number of specified circumstances, including two in particular which seem potentially\napplicable in this case. First. \xc2\xa7 552a(b)(3) permits disclosure fo ra \xe2\x80\x9croutine use,\xe2\x80\x9d i.e., a use \xe2\x80\x9c for a purpose which is\ncompatible with the purpose for which it was collected.\xe2\x80\x99\xe2\x80\x99 See also \xc2\xa7 552a(a)(7) A \xe2\x80\x9croutine use\xe2\x80\x9d must be established\nby publication in the Federal Register See \xc2\xa7 552a(e)(4)(D). Second, \xc2\xa7 552a(b)(7) permits disclosure to another\nfederal agency \xe2\x80\x9c for a civil or cnm inal law enforcement activity if the activity is authonzed by law \xe2\x80\x9d Disclosure under\nthis section is permissible only if the head o f the agency desinng the information has made a written request to the\nhead of the agency maintaining the record\n\n630\n\n\x0c\xc2\xa7 1206(b) (Supp. II 1978) (Special Counsel of the Merit Systems Protection\nBoard must refer complaints of prohibited personnel practices to the appropriate\nagency head for initial investigation). See also 5 U.S.C. \xc2\xa7 2302(c) (agency head\nresponsible for enforcement of laws and regulations relating to personnel\nmanagement).\nIV.\nThe procedures proposed for investigating allegations against Office of Inspec\xc2\xad\ntor General staff or the head of an agency seem to us for the most part legally\nunobjectionable. We question, however, whether an Inspector General would\nhave authority under the Inspector General Act to investigate all non-criminal\nallegations against the head of the agency, including those unrelated to the\nInspector General\xe2\x80\x99s statutory responsibilities respecting the programs and ac\xc2\xad\ntivities of his establishment. We also question whether either the Council or its\nChairman has been properly authorized to receive information from an Inspector\nGeneral relating to an investigation. See notes 7 and 12, supra.\nV.\nWe appreciate the Council\xe2\x80\x99s interest in devising an effective means of holding\nan Inspector General and his staff accountable for their conduct under non\xc2\xad\ncriminal laws and regulations generally applicable to officers and employees of\nthe Executive Branch. And we recognize that the Council\xe2\x80\x99s procedures are still in\nthe process of development. While we have expressed a number of legal reserva\xc2\xad\ntions about the procedures as presently drafted, it should be possible to accom\xc2\xad\nplish the Council\xe2\x80\x99s objectives through more explicit reliance on the President\xe2\x80\x99s\ninherent authority to oversee the performance of his appointees in office.13 In\naddition, depending on the nature of the allegations involved, the Council may\nfind it useful to draw upon an agency head\xe2\x80\x99s inherent authority to supervise the\nconduct of officers and employees of his agency.14\nWe would be interested to learn what further steps the Council decides to take\nin connection with this matter, and to be of further assistance should you so\ndesire.\nR a lph W. Tarr\n\nDeputy Assistant Attorney General\nOffice c f Legal Counsel\n13 While the President could delegate this oversight function in the case of Inspectors General to the Council or its\nChairman, see 3 U.S C \xc2\xa7\xc2\xa7 301 and 302, there would remain the question of what funds could be used to pay its\ncosts See note 8. supra. If the President were to retain overall responsibility for directing investigations into\nallegations against an Inspector General, funds appropriated to the general activities of the White House Office\ncould be used for this purpose. If necessary, trained investigative personnel, including Inspector General staff,\ncould be detailed from other agencies on a reimbursable basis. See 3 U.S C. \xc2\xa7 107. Alternatively, if the President\nwere to direct the investigation of his appointees by an agency which is otherwise authorized to investigate particular\ntypes of misconduct, funds appropriated to that agency could be made available for the investigation.\n14 An agency head\'s authority to investigate allegations against officers and employees of his agency, and to use\nfunds appropnated for the general administration of the agency for this purpose, is discussed in notes 10 and 11,\nsupra. Under such circumstances the investigator should report directly to the agency head, rather than to the\nChairman o f the Council, as the proposal currently provides in the case of investigations of Inspectors General\n\n631\n\n\x0c'


b'Title X Family Planning Program Proposals\nSection 1008 of T itle X prohibits Title X programs from counseling and making referrals related\nto abortion as a method o f family planning, except where such counseling and referrals are\nmedically indicated. Such a limitation on the use o f government funds does not violate the\nConstitution.\nThe Secretary o f Health and Human Services is authorized to prohibit Title X programs from\nengaging in abortion advocacy and to require that organizations engaged in both T itle X\nprograms and abortion-related programs segregate the two. Such requirements do not violate\nthe Constitution.\n\nJuly 30, 1987\nM\n\nem orandum\n\nO p in io n\n\nfor th e\n\nto th e\n\nS e n io r A s s o c ia t e C o u n s e l\n\nP r e s id e n t\n\nI. Introduction and Summary\nYou have requested the opinion of this Office on three proposals to modify\nthe administration of the Title X family planning program. This memorandum\nconfirms our earlier, oral advice to you that the Secretary of Health and Human\nServices may implement these proposals by appropriate regulations promul\xc2\xad\ngated pursuant to Title X to be effective on or after October 1, 1987.1\nThe three proposals relating to Title X are as follows:2\n(1) Title X programs would be prohibited from providing coun\xc2\xad\nseling and referral for abortion services as a method of family\nplanning;\n(2) Title X programs would be prohibited from engaging in\nabortion-related advocacy activities; and\n(3) Organizations maintaining both Title X programs and pro\xc2\xad\ngrams that provide abortion-related services would be required\n1 U nless HHS has adopted contrary regulations or special statutory requirem ents exist, such regulations\nw ould not be subject to the notice-and-com m ent requirem ents o f the A dm inistrative Procedure Act because\no f the grant exception in 5 U.S.C. \xc2\xa7 553(a). W e have not, how ever, exam ined any specific questions relating\nto the procedural requirem ents for prom ulgating regulations under Title X, or considered w hether it w ould be\npm dentially advisable to prom ulgate these proposals by notice-and-com m ent rulemaking o r as revisions to\nthe existing internal departm ental guidelines.\n2 There is a fourth proposal relating to m edical research by the Surgeon General w hich we have not\naddressed.\n\n77\n\n\x0cto segregate the abortion-related programs from the Title X\nprograms.\nIn brief, our conclusions are as follows. First, we believe that the proposal to\nrestrict counseling and referral for abortion services as a method of family\nplanning is mandated by \xc2\xa7 1008 of Title X, but that, in accordance with current\nregulations, such counseling and referral should be permitted where medically\nindicated. Second, we believe that the Secretary of HHS has ample statutory\nauthority to prohibit abortion advocacy by Title X programs. Third, we believe\nthat the Secretary of HHS has ample authority to require reasonable physical\nand other segregation between Title X programs and programs providing\nabortion-related services. Finally, we believe that the three proposals can be\nimplemented in a constitutional manner.\nII. Analysis\nA. A bortion Counseling and R eferral A ctivities\n\nWe believe that \xc2\xa7 1008 compels the Secretary of the Department of Health\nand Human Services (HHS) to prohibit in Title X programs all counseling and\nreferrals related to abortion as a method of family planning, although abortion\ncounseling and referrals should not be prohibited where they are medically\nindicated. Accordingly, \xc2\xa7 8.6 of the HHS\xe2\x80\x99s current Program Guidelines fo r\nFam ily Planning Services, which requires abortion counseling and referrals in\ncircumstances in addition to where medically indicated, is contrary to the\nstatutory prohibition in \xc2\xa7 1008 and should be amended.\nSection 1008 of the Family Planning Services and Research Act of 1970,\nPub. L. No. 91-572 (codified at 42 U.S.C. \xc2\xa7 300a-6), provides:\nNone of the funds appropriated under this title shall be used in\nprograms where abortion is a method of family planning.\nWe believe that this prohibition prevents any program receiving Title X funds\nfrom carrying out any activity related to abortion as a method of family\nplanning. We understand the term \xe2\x80\x9cabortion as a method of family planning\xe2\x80\x9d to\ninclude all abortions except where the abortion is medically indicated.\nWe believe that our construction of \xc2\xa7 1008 is supported by both the express\nlanguage of the provision and by its legislative history. Although HHS has\nconstrued this section to permit family planning counseling concerning abor\xc2\xad\ntion and family planning referrals for abortion, we believe that this construc\xc2\xad\ntion is erroneous. In any event, even if HHS\xe2\x80\x99s previous interpretation was\nreasonable, it does not preclude HHS from promulgating regulations on the\nbasis of the construction advanced here given that this interpretation is itself\nreasonable.\nOn its face, \xc2\xa7 1008 prohibits the granting of government funds to a program\nin which abortion is a method of family planning. The plain meaning of this\nlanguage would seem to be that a program that offers any family planning\n78\n\n\x0cservices related to abortion is a program in which abortion is a method of\nfamily planning. In particular, a program that includes abortion among the\nfamily planning options about which it counsels women is one in which\nabortion is a method of family planning. Because a large part of family\nplanning consists of counseling or other forms of information distribution, it\ncannot be said that counseling is not \xe2\x80\x9cfamily planning.\xe2\x80\x9d3\nThe view that the plain meaning of \xc2\xa7 1008 prohibits abortion counseling and\nreferral is supported by its legislative history. Preeminent among this legisla\xc2\xad\ntive history is the lengthy speech that Representative Dingell, the sponsor of\n\xc2\xa7 1008, delivered on the subject of abortion and family planning. Representa\xc2\xad\ntive Dingell made it clear that abortion was simply not a proper method of\nfamily planning. He stated:\nThere is a fundam ental difference between the prevention of\ncontraception and the destruction of developing human life.\nResponsible parenthood requires different attitudes toward hu\xc2\xad\nman life once conceived than toward the employment of preventive\ncontraceptive devices or methods. What is unplanned contraceptively\ndoes not necessarily become unwanted humanly . . . .\nI f there is any direct relationship between fam ily planning and\nabortion, it would be this, that properly operated fam ily p la n \xc2\xad\nning program s should reduce the incidence o f abortion.\n\n116 Cong. Rec. 37375 (1970) (emphasis added). Representative Dingell\xe2\x80\x99s\nclearly delineated contrast between abortions and preventive contraceptive\nmethods demonstrates that he did not believe abortion was a proper method of\nfamily planning. Permitting organizations to provide counseling or referrals\nwith respect to abortion would be squarely at odds with a view that abortion is,\nunlike contraception, not a method of family planning but a practice which\nCongress believed family planning services would reduce.\nThe Conference Committee Report confirms the dichotomy between abor\xc2\xad\ntions and preventive contraception. It states:\n[i]t is, and has been, the intent of both Houses that the funds\nauthorized under this legislation be used only to support preven\xc2\xad\ntive family planning services, population research, infertility\nservices, and other related medical, informational, and educa\xc2\xad\ntional activities. The conferees have adopted the language con\xc2\xad\n3 M oreover, w hen C ongress wished to craft a more narrow prohibition limited to the use of federal funds to\nprovide abortions, it knew how to do so See Pub. L. No. 96-123, \xc2\xa7 109, 93 Stat. 923, 926 (1979) (prohibiting\nfunds appropriated for M edicaid program from being used to provide abortions). In \xc2\xa7 1008, however,\nCongress chose broader language that prohibited funds from being used to support any program where\nabortion is a method o f fam ily planning. W e believe that the plain meaning o f \xc2\xa7 1008 becom es clearer if one\nimagines a sim ilar provision that prohibited federal funds from being received by a program in which a\nparticular form o f contraception is a m ethod o f family planning. It would seem absurd to conclude that such\na prohibition perm itted fam ily planning counseling about the proscribed form o f contraception.\n\n79\n\n\x0ctained in section 1008, which prohibits the use of such funds for\nabortion, in order to make clear this intent.\nH.R. Conf. Rep. No. 572, 91st Cong., 1st Sess. 2 (1970) (emphasis added).\nAlthough the Conference Report authorized \xe2\x80\x9cmedical, informational and edu\xc2\xad\ncational activities,\xe2\x80\x9d these activities must be \xe2\x80\x9crelated\xe2\x80\x9d to \xe2\x80\x9cpreventive family\nplanning services.\xe2\x80\x9d Counseling concerning abortion is manifestly not related to\npreventive family planning services, given the explicit contrast between abor\xc2\xad\ntion and family planning that Representative Dingell drew on the floor.\nMoreover, in his floor statement, Representative Dingell explicitly stated\nthat the prohibition was not limited to the provision of abortions:\nWith the \xe2\x80\x9cprohibition o f abortion\xe2\x80\x9d amendment \xe2\x80\x94 title X, sec\xc2\xad\ntion 1008 \xe2\x80\x94 the committee members clearly intend that abor\xc2\xad\ntion is not to be encouraged o r prom oted in any w ay through\nthis legislation. Programs which include abortion as a method of\nfamily planning are not eligible for funds allocated through this act.4\n116 Cong. Rec. 37375 (1970) (emphasis added).\nWe believe that counseling or referrals concerning abortions are clearly\nactions that promote abortion. The purpose of counseling programs for preg\xc2\xad\nnant women is to provide information upon which a course of action may be\nbased. The intended effect of that education is that a pregnant woman select\nand act upon some of the information and referrals offered. Where abortion\ncounseling and referral comprise a part of the counseling, a program is best\nconstrued to include abortion as \xe2\x80\x9ca method of family planning\xe2\x80\x9d because the\nintended and actual effect of the counseling and referral is to provide the option\nof abortion with the natural expectation that some pregnant women will select\nthat method of family planning. Indeed, counseling concerning abortion or any\nother subject would be pointless in the absence of an expectation that some\npeople will act on the information received.\nWe are aware that HHS has adopted a construction of \xc2\xa7 1008 which permits\ncounseling and referrals concerning abortions as a method of family planning.\nSee, e.g., Memorandum from Cayetano Santiago, Division of Public Health\nServices Delivery, to the Office of General Counsel (Mar. 4, 1982) (1982\nMemorandum); Memorandum from Senior Attorney, Public Health Division to\nElsie Sullivan, Assistant for Information and Education Office for Family\nPlanning, HHS (Apr. 14,1978) (1978 Memorandum). Under this construction,\ncounseling or referrals concerning abortion as a method of family planning are\nnot proscribed under Title X because, according to HHS, neither the purpose\nnor the principal effect of such counseling or referrals is to promote abortion.5\n4 It should also be n o ted that, in enacting Title X, C ongress fully understood that family planning included\na w ide range o f services, including counseling and referrals. See S. R ep. No. 1004, 91st Cong., 2d Sess. 4\n(1970). Therefore, \xc2\xa7 1008\xe2\x80\x99s reference to fam ily planning should, in the absence o f contrary evidence, be\ndeem ed to include all such forms of fam ily planning. A ccordingly, w hen a program offers counseling or\nreferrals concerning abortion the program is one in w hich abortion is one o f the m ethods o f fam ily planning.\n5 In the 1978 M em orandum , the test fo r perm itting an abortion-related activity is the immediate effect test,\ni.e., ab o rtion-related activ ities may be fu n d ed by T itle X unless they have the im m ediate effect o f promoting\nabortion. 1978 M em orandum at 13.\n\n80\n\n\x0c1982 Memorandum at 13. Presumably, this legal construction is the basis for\nthe requirement in the present guidelines that counseling and referrals for\nabortion must be offered, although, at most, this construction would appear\nonly to favor perm itting rather than requiring such counseling.6\nWe believe that the HHS\xe2\x80\x99s \xe2\x80\x9cpurpose or principal effect\xe2\x80\x9d test is not warranted\nby the legislative history, and even if it were, counseling concerning abortion\nas a method of family planning would be invalid under that test because it\nwould have the \xe2\x80\x9cpurpose or principal effect\xe2\x80\x9d of promoting abortion. First, there\nis simply nothing in the legislative history of \xc2\xa7 1008 to suggest the \xe2\x80\x9cpurpose or\nprincipal effect test\xe2\x80\x9d in this context.7 The language of the statute simply\nprohibits abortion as a method of family planning. Moreover, the legislative\nhistory makes clear that any activity that promotes abortion as a method of\nfamily planning is prohibited. Accordingly, if the activity has the effect of\npromoting abortion as a method of family planning it is prohibited by the\nstatute even if such promotion is not the activity\xe2\x80\x99s purpose or principal effect.\nThere is simply no value or goal adduced elsewhere in the statutory scheme\nwhich supports the introduction of a limiting principle such as the \xe2\x80\x9cpurpose or\n6 These guidelines provide:\nPregnant w om en should be offered inform ation and counseling regarding their pregnancies.\nThose requesting inform ation on options for the managem ent o f an unintended pregnancy are to\nbe given non-directive counseling on the follow ing alternative courses o f action, and referral\nupon request:\nPrenatal care and delivery\nInfant care, foster care, o r adoption\nPregnancy term ination.\nProgram Guidelines fo r Project Grants For Family Planning Services at 13.\n7 The M em orandum from C arol Conrad, A ttom ey-A dviser, Public Health Division, to Ernest G. Peterson,\nAssociate Bureau D irector, O ffice o f Planning (M ar. 19, 1976), contends that the purpose o r principal effect\ntest is supported by certain rem arks in a debate over provisions in Pub L. No. 94-63, 89 Stat. 304 (1975), to\nam end \xc2\xa7 1004 o f T itle X, w hich authorizes the Secretary to make grants \xe2\x80\x9cto promote research in the\nbiom edical, contraceptive developm ent, behavioral and program im plem entation fields related to family\nplan n in g /\' The only substantive amendm ent to this provision was to permit the Secretary to conduct such\nresearch at HHS as well as m aking grants to outside organizations. See Pub. L. No. 94-63, \xc2\xa7 202(c), 89 Stat.\nat 306. In the course o f the discussion o f the am endm ent, Representative Baum an com plained that HHS was\nnot carrying out the intent o f \xc2\xa7 1008 w hich he saw as \xe2\x80\x9ce n fo rc in g ] a wall o f separation between family\nplanning and abortion.\xe2\x80\x9d 121 Cong. Rec. 17218 (1975). He therefore asked and received assurances that\n\xc2\xa7 1004 would not include research on abortion techniques. Id. at 17219. N oting that a 1971 H ouse Conference\nReport stated that \xc2\xa7 1008 should not prevent research into the causes o f abortion, R epresentative Baum an\nasked:\nBut I would like to make clear that this language does not allow the HEW to purchase or grant\ncontracts w hose purpose or principal effect would be to develop new techniques for perform ing\nabortions. W ould I be correct in assum ing that this language does not allow such research?\nM r. Rogers: That is correct, a s a m ethod o f fam ily planning.\n\nId. (em phasis added).\nG iven the context in which they were m ade, these rem arks m anifestly cannot be construed as a qualification\nand lim itation on \xc2\xa7 1008\xe2\x80\x99s prohibition o f abortion as a m ethod o f fam ily planning. First and forem ost, these\nrem arks do not constitute legislative history concerning \xc2\xa7 1008 or an am endm ent to that section, but rather to\nan am endm ent to \xc2\xa7 1004 that had nothing to do w ith abortion. The view s of a subsequent Congress form a\ndubious basis for inferring the intent o f an earlier legislative action, and clearly cannot override a reasonable\ninterpretation o f a statute based on its language and contem poraneous legislative history. See Consumer\nProduct Safety Comm\xe2\x80\x99n v. GTE Sylvania, Inc., 447 U.S. 102 (1980). M oreover, because he clearly believed\nthat \xc2\xa7 1008 should be given a broader scope, one m ust com pletely ignore the purpose o f Representative\nB aum an\'s remarks to take these as an intended lim itation on the meaning of \xc2\xa7 1008.\n\n81\n\n\x0cprincipal effect test\xe2\x80\x9d to \xc2\xa7 1008\xe2\x80\x99s unequivocal expression of disapproval of\nabortion as a method of family planning. HHS\xe2\x80\x99s construction has in effect\ncreated a balancing test where there are no values to balance.\nSecond, we have serious doubts that counseling for abortions as a method of\nfamily planning would even pass muster under the \xe2\x80\x9cpurpose or principal\neffect\xe2\x80\x9d test. The principal and foreseeable effect of counseling on abortions as\na method of family planning is that some women will choose abortion as such a\nmethod. Indeed, it is impossible to discern what other effect such counseling\ncould have or could be intended to have. In addition, we do not believe that the\npresent guidelines are saved from inconsistency with the mandate of \xc2\xa7 1008 by\nvirtue of the fact that they contemplate only \xe2\x80\x9cnondirective\xe2\x80\x9d counseling. It is\nprobable that Congress intended that all family planning counseling be\nnondirective, but that does not mean that nondirective abortion counseling is\nconsistent with the prohibition in \xc2\xa7 1008.\nAlthough HHS\xe2\x80\x99s construction of \xc2\xa7 1008, which requires counseling on abor\xc2\xad\ntions or referrals as a method of family planning, is fairly well-established, we\ndo not believe that this construction should be deemed binding on this or any\nfuture administration.8 It is a well-settled axiom of administrative law that an\nadministrative construction of a statute even if consistently advanced for a long\nperiod of time is binding only to the extent it is supported by valid reasons. See\nBurnet v. C hicago Portrait C o., 285 U.S. 1,21 (1932). While weight should be\ngiven to an agency\xe2\x80\x99s expertise in interpreting a statute it is charged with\nexecuting, deference to an administrative interpretation \xe2\x80\x9cis constrained by [the]\nobligations to honor the clear meaning of a statute, as revealed by its language,\npurpose and history.\xe2\x80\x9d See International Brotherhood o f Teamsters v. Daniel,\n439 U.S. 551, 556 n.20 (1979). As we have suggested above, we simply do not\nbelieve the \xe2\x80\x9cpurpose or principal effect\xe2\x80\x9d test is warranted given the language,\nmanifest purpose and legislative history of \xc2\xa7 1008.\nMoreover, although we have concluded that HHS\xe2\x80\x99s past interpretation is\nincorrect as a matter of law, such a conclusion is not necessary in order to\npromulgate regulations based on the interpretation of \xc2\xa7 1008 advanced here.\nWhile the reasonableness of a particular construction of a statute may be\nsupported by the fact that such construction is contemporaneous with the\nenactment of the statute and has been consistently adhered to since that time, a\nsubsequent and different administrative construction is not rendered unreason\xc2\xad\nable by virtue of its inconsistency with the former construction. In other words,\na previous interpretation of a statute no matter how reasonable cannot be\ndeemed to preclude subsequent administrative constructions so long as they are\nthemselves reasonable. A fo rtio ri, an erroneous previous interpretation does\nnot preclude a subsequent correct one.\n8 HHS form ally addressed the issue o f counseling and referrals m the 1978 M emorandum , supra Although\nbefore that tim e it addressed a number o f related issues, such as the provision of Title X funds for scientific\nresearch, see M em orandum for Jim G oodm an, Public H ealth Division, to Louis M. H eilman, Deputy\nA ssistant Secretary for Population A ffairs (Oct. 5, 1972), these opinions constituted ad hoc approaches to\np articu lar problem s. T he 1978 M emorandum was the first to advance a com prehensive theory for the\nconstru ctio n o f \xc2\xa7 1008 in the form of the im m ediate effect test.\n\n82\n\n\x0cThe Executive\xe2\x80\x99s permanent discretion to construe statutes it is charged with\nexecuting in novel but reasonable ways is a consequence of both the constitutional\nrequirement of the enactment of legislation and the constitutional underpinning of\nthe delegation doctrine. First, a prior administrative construction of the statute no\nmatter how reasonable cannot permanently modify the meaning of the underlying\nlegislation because an administrative construction does not meet the procedural\nrequirements in Article I for the passage of binding legislation. See INS v. Chadha,\n462 U.S. 919 (1983). Accordingly, a particular construction of a statute cannot limit\nthe range of possible constructions that a subsequent administration may adopt.\nSecond, a central premise of the delegation doctrine is that the popularly elected\nExecutive may implement his policy choices within the discretion the statute\nentrusts to him. See Chevron U.S.A. v. Natural Resources Defense Council, 467\nU.S. 837, 865 (1983).9 See also M otor Vehicle Manufacturers A ss\xe2\x80\x99n v. State Farm\nAutomobile Insurance Co., 463 U.S. 29, 45 (1983) (Congress\xe2\x80\x99 ratification of an\nagency construction through failure to change the underlying statute does not\nincorporate agency construction into statute). If a prior administrative construction\nwere permitted to circumscribe the discretion of subsequent administrations, the\nauthority Congress delegated would not be exercised in a manner responsive to the\npopular will.\nAccordingly, even if \xc2\xa7 1008\xe2\x80\x99s meaning were less plain than we believe it to\nbe and the legislative history less clear than it appears to be, this administration\nwould have the discretion to interpret \xc2\xa7 1008 to prohibit abortion counseling\nand referrals.10 Section 1008 prohibits abortion as a method of family planning\nand nowhere in the statute is any countervailing policy suggested. Thus, the\n9 The Chevron court in relevant part stated:\nJudges are not experts in the field, and are not part o f either political branch of the governm ent.\nC ourts must, in some cases, reconcile com peting political interests, but not on the basis of\nju d g e s\' personal policy preferences. In contrast, an agency to which C ongress has delegated\npolicym aking responsibilities may, within the limits o f that delegation, properly rely upon the\nincum bent ad m in istratio n \'s view s o f wise policy to inform its judgm ents. While agencies are not\n\ndirectly accountable to the people, the Chief Executive is, and it is entirely appropriate fo r tkis\npolitical branch o f the government to make such policy choices \xe2\x80\x94 resolving the competing\ninterests which Congress itself either inadvertently did not resolve, or intentionally left to be\nresolved by the agency charged with the administration o f the statute in light o f everyday\nrealities\nW hen a challenge to an agency construction o f a statutory provision, fairly conceptualized,\nreally enters on the wisdom o f the agency\xe2\x80\x99s policy, rather than w hether it is a reasonable choice\nw ithin a gap left open by Congress, the challenge must fail. In such case, federal ju d g es \xe2\x80\x94 who\nhave no constituency \xe2\x80\x94 have a duty to respect legitim ate policy choices made by those who do.\n467 U.S. at 865 (em phasis added)\n10 Im plem enting the mandate o f \xc2\xa7 1008 by prohibiting abortion counseling and referral as a method of\nfamily planning is also constitutional While abortion counseling and referral are constitutionally-protected\nactivities, the governm ent is under no constitutional obligation to subsidize those activities. W hat the\ngovernm ent is forbidden to do under the doctrine o f "unconstitutional conditions\xe2\x80\x9d is to require that a grantee\nnot engage in a constitutionally-protected activity with nongovernm ental funds as a condition of receiving\ngovernm ental funds o r benefits As discussed more fully in the subsequent sections of this mem orandum , so\nlong as any restrictions on abortion counseling and referral are lim ited to the T itle X programs them selves (as\nopposed to other program s conducted by the sam e organization) and are a reasonable im plem entation o f the\nstatutory prohibition, no \xe2\x80\x9cunconstitutional condition\xe2\x80\x9d will be created\n\n83\n\n\x0cadministrator of the statute has discretion to effectuate this prohibition in any\nway that is reasonable and consistent with the statutory scheme.11\nWe reiterate, however, that the prohibition on abortion counseling and\nreferrals should not apply when abortion is medically indicated. Section 1008\xe2\x80\x99s\nprohibition is limited to abortion as a \xe2\x80\x9cmethod of fa m ily planning.\xe2\x80\x9d Abortions\nthat are medically indicated are not a method of family planning but rather are\nmedical procedures. This view is embodied in 42 C.F.R. \xc2\xa7 57.5(b)(1) which\nrequires that Title X grantees \xe2\x80\x9cprovide for medical services related to family\nplanning . .. and necessary referral to other medical facilities when medically\nindicated.\xe2\x80\x9d12 Accordingly, limiting the implementation of \xc2\xa7 1008\xe2\x80\x99s prohibition\nto abortion as a method of family planning makes it unnecessary to address any\nstatutory and constitutional questions that would need to be resolved before\nthis regulation could be changed.13\nB. A bortion A dvocacy\n\nThe previous section of this memorandum concluded that \xc2\xa7 1008 mandates\nthat Title X programs be prohibited from providing counseling and referral for\nabortion services as a method of family planning. That statutory analysis is\nequally applicable to the proposal to prohibit Title X programs from engaging\nin abortion-related advocacy activities. Section 1008 \xe2\x80\x94 particularly when read\nagainst the background of its legislative history \xe2\x80\x94 furnishes HHS with an\nample mandate to prohibit Title X programs from in any way promoting\nabortion as a method of family planning, and abortion advocacy is clearly a\nform of promoting abortion. The only caveat we would cite is that, for reasons\nnoted above, guidelines should not be drafted so broadly as to prohibit advo\xc2\xad\ncacy of abortion when abortion is medically indicated.\nIn addition to being authorized by the statute, a prohibition on abortion\nadvocacy would be constitutional. Although abortion advocacy is a form of\nexpression protected by the First Amendment, see Bigelow v. Virginia , 421\nU.S. 809 (1975) (statute making it a misdemeanor to sell or circulate any\n11 O f course issuing these new guidelines or new directives would represent a change in policy, and HHS\nw ould have to supply a \xe2\x80\x98\xe2\x80\x9c reasoned a n aly sis\xe2\x80\x99\xe2\x80\x9d o f why it is changing its position. See Motor Vehicle\nManufacturers A ss\xe2\x80\x99n v. State Farm M utual Automobile Insurance, 463 U .S. 29, 57 (1983) (quoting Greater\nBoston Television Corp. v. FCC, 444 F .2 d 841, 852 (D.C. C ir. 1970), cert, denied, 403 U.S. 923 (1971)).\nA lthough changed circum stances are not needed to supply the basis for such a change in position, see 463\nU .S. a t 157, th e agency m ust offer some reaso n for the action it undertakes.\n12 The construction o f \xc2\xa7 1008 em bodied in this regulation is supported by the legislative history. For\ninstan ce, in h is lengthy speech on the flo o r. R epresentative D ingell contrasted abortion as a method o f family\nplan n in g w ith abortions perform ed for m ed ical reasons. See 116 Cong. R ec. 37379 (1980).\n13 L im iting the prohibition on abortion a s a method o f fam ily planning is also advisable to avoid conflict\nw ith Valley Family Planning v. North Dakota , 661 F.2d 99 (8th Cir. 1981). In that case, the U.S. C ourt of\nA ppeals for the E ighth C ircu it invalidated a state statute th a t prohibited federal funds passing through a state\ntreasu ry from being used as family planning funds by any agency that perform s, refers o r encourages abortion\no n the gro u n d th at the statute conflicted w ith Title X o f the Public H ealth Service A ct. The specific conflict\nthe co u rt identified w as that the flat prohibition on abortion was inconsistent with \xe2\x80\x9cT itle X \'s m andate that\ncom prehensive health care provided, in clu d in g referrals to other services when medically indicated .\xe2\x80\x9d 661\nF .2d a t 102 (em phasis added).\n\n84\n\n\x0cpublication encouraging or promoting the procuring of an abortion declared an\ninfringement of speech), the government is under no obligation to subsidize\nparticular forms of expression. See Regan v. Taxation With Representation o f\nWashington, 461 U.S. 540, 546-547,599 (1983) (in granting tax exemption to\ncertain nonprofit organizations that do not engage in lobbying activities, Con\xc2\xad\ngress simply chose not to pay for nonprofit corporation\xe2\x80\x99s lobbying out of public\nfunds, and did not regulate any First Amendment activity).\nAccordingly, while an organization may have a constitutional right to speak\nin favor of abortion, it does not have a right to have its advocacy subsidized by\nthe federal government. Thus, the government can prohibit programs receiving\nTitle X funds from spending those funds to promote abortion. On the other\nhand, the government cannot preclude organizations whose programs receive\nTitle X funds from using nongovernmental resources in other programs to\nadvocate abortion.14\nC. Segregation o f Title X Program s from Abortion-Related Programs\nThe statutory issue presented by the proposal to segregate abortion-related\nprograms from Title X programs is the program-specific language of Title X\xe2\x80\x99s\nabortion restrictions. As interpreted by the Supreme Court in Grove City\nCollege v. B ell, 465 U.S. 555 (1984), and its progeny, such language has been\nconstrued in accordance with its plain meaning \xe2\x80\x94 restrictions apply to the\nprogram only, not to the organization within which that program exists. The\nconstitutional issue is closely linked to the statutory issue: the government may\nrefuse to subsidize the exercise of a constitutional right (such as abortion\nadvocacy), but it may not refuse to provide other government benefits on the\ngrounds that such a constitutional right is being exercised. Requiring program\nsegregation could be viewed as burdening an organization that exercises rights\nthat have been held by the Court to be constitutionally-protected and thereby\nindirectly conditioning the grant of government benefits on relinquishment of\nconstitutional rights. We conclude, however, that HHS may require reasonable\nsegregation between Title X programs.\n14 It should be noted, how ever, that the fact that governm ent is not required to subsidize abortion advocacy,\ndoes not mean that T itle X funds could n ecessarily be used to subsidize anti-abortion advocacy. First, there is\nsome question \xe2\x80\x94 even given \xc2\xa7 1008 \xe2\x80\x94 w hether the use o f Title X funds for anti-abortion advocacy is w ithin\nthe scope o f the statute. Second, w hile the C onstitution does not require the governm ent to subsidize abortion\nadvocacy, if Title X regulations were to perm it anti-abortion advocacy while forbidding pro-abortion\nadvocacy, they m ight be subject to challenging as a form o f unconstitutional view point discrim ination. Cf.\nRegan v. Taxation With Representation o f Washington, 461 U.S. S40, 548 (1983) (while C ongress did not\nviolate appellee\xe2\x80\x99s constitutional rights \xe2\x80\x9cby declining to subsidize its First A mendment activities,\xe2\x80\x9d a different\ncase w ould be presented \xe2\x80\x9cif Congress w ere to discrim inate invidiously in its subsidies\xe2\x80\x9d ). By noting the\ncaveat, how ever, we do not m ean to suggest necessarily that a m ere negative reference to abortion in the\ncourse of family planning counseling \xe2\x80\x94 for instance, an observation by the counselor that one o f the virtues\no f preventive fam ily planning is that it avoids the medical risks entailed by an abortion \xe2\x80\x94 should be view ed\nas \xe2\x80\x9canti-abortion advocacy\xe2\x80\x9d and thus trigger these statutory and constitutional concerns.\n\n85\n\n\x0cIn G rove City, supra, the Supreme Court held that the language in \xc2\xa7 901(a)\nof Title IX of the Education Amendments prohibiting sex discrimination in\n\xe2\x80\x9cany education program or activity receiving Federal financial assistance\xe2\x80\x9d\nmeant that the sanction imposed by Title IX \xe2\x80\x94 the cut-off of the federal student\ngrants provided by the statute \xe2\x80\x94 could only be imposed on the program\nreceiving the financial assistance, not on the institution or organization of\nwhich that program was a part. On the facts of Grove City, the Court held that\nthe relevant \xe2\x80\x9cprogram\xe2\x80\x9d was the financial aid program and not Grove City\nCollege as a whole.\nThe construction in Grove C ity of the phrase \xe2\x80\x9cprogram\xe2\x80\x9d in Title IX has been\napplied by the Supreme Court and by lower federal civil rights statutes which\nprohibit discrimination in programs receiving federal assistance. See, e.g., U.S.\nD e p \xe2\x80\x99t o f Transp. v. Paralyzed Veterans, 477 U.S. 597 (1986) (\xc2\xa7 504 of the\nRehabilitation Act of 1973, 29 U.S.C. \xc2\xa7 794). Although Title X is not a civil\nrights statute on the model of Title IX of the Education Amendments, see id. at\n600 n.4, there is no reason to believe that the term \xe2\x80\x9cprogram\xe2\x80\x9d in Title X should\nbe interpreted any differently than it was interpreted by the Supreme Court in\nG rove City. Thus, the prohibition in \xc2\xa7 1008 on the use of funds where abortion\nis a method of family planning must \xe2\x80\x94 as the statute expressly provides \xe2\x80\x94 be\napplied only to the specific program at issue.\nIn assessing the range of possible guidelines in light of the program-specific\nlanguage of \xc2\xa7 1008, it is useful to view several hypothetical proposals along a\ncontinuum. At one extreme, for instance, we believe that a proposal which\nwould require that each Title X program maintain separate accounting records\nwould be entirely consistent with the program-specific language of \xc2\xa7 1008. To\nensure compliance with the congressional mandate in \xc2\xa7 1008, HHS must, at the\nvery least, be able to determine that there is a distinct \xe2\x80\x9cprogram\xe2\x80\x9d providing\nfamily planning services, and requiring separate accounting records would\nseem to be an eminently reasonable means of ensuring that HHS will have the\nmeans to make that determination.\nOn the other hand, a proposal that separate entities be established to conduct\nthe Title X program would fall at the other extreme of the continuum. While\nG rove City does not provide criteria for defining a \xe2\x80\x9cprogram,\xe2\x80\x9d it does establish\nthe principle that \xe2\x80\x9cprogram\xe2\x80\x9d does not mean \xe2\x80\x9corganization\xe2\x80\x9d or \xe2\x80\x9cinstitution.\xe2\x80\x9d\nMoreover, it appears that the statutory requirement of program-specificity is\nmet notwithstanding the fact that the program has links with other programs\nwithin an organization. As the Supreme Court observed in Paralyzed Veterans,\nsupra: \xe2\x80\x9cIn G rove City, despite the arguably \xe2\x80\x98indissoluble nexus\xe2\x80\x99 among the\nvarious departments of a small college, we concluded that only the financial aid\nprogram could be subject to Title IX.\xe2\x80\x9d 477 U.S. at 611.\nTo require that a Title X program be limited to a separate corporation or\nother distinct juridical entity would be, in effect, to require that it be conducted\nby a separate organization. As such, it would be inconsistent with Grove C ity\xe2\x80\x99s\nconstruction of the term \xe2\x80\x9cprogram.\xe2\x80\x9d In G rove City itself, for instance, the Court\nheld that the financial aid department was a separate \xe2\x80\x9cprogram\xe2\x80\x9d within Grove\n86\n\n\x0cCity College, although it was apparent from the facts that the financial aid\ndepartment had no juridical identity apart from Grove City College. Lower\ncourt decisions have similarly held that various activities constituted \xe2\x80\x9cpro\xc2\xad\ngrams\xe2\x80\x9d without even addressing whether such activities were conducted within\na separate juridical entity. See, e.g., Jacobson v. D elta Airlines, Inc., 742 F.2d\n1202 (9th Cir. 1984) (airlines service to small communities was a separate\nprogram), cert, dism issed, 471 U.S. 1062 (1985); O \xe2\x80\x99Connor v. Peru State\nCollege, 781 F.2d 632 (8th Cir. 1986) (physical education department was\nseparate program within college).15\nWe also think that a very extreme requirement of functional separation\nwould be at odds with the program-specific language of \xc2\xa7 1008. If total de ju re\nseparation cannot be required between different programs, then total de fa cto\nseparation cannot be required either. Again, it is useful to advert to G rove City\nand its progeny. In Grove City, the Court did not even inquire as to whether\nseparate physical facilities existed or whether the financial aid program had its\nown full-time staff that did not perform work in other college programs.\nSimilarly, in Jacobson v. Delta Airlines, supra, the Court held that the small\ncommunity service was a separate program without mentioning whether there\nwas any separation of facilities or separate staff. It seems highly likely that\nthere was no such functional separation; presumably, for instance, tickets to\nflights to the small communities were sold at the same Delta flight counters by\nthe same personnel who sold tickets to the major cities. Thus, we think that a\nproposal which requires total functional separation between programs would\nbe inconsistent with Grove City.\nHowever, if a requirement of total functional separation is inconsistent with\nthe program-specific statutory language, it is nevertheless important not to\nslight the specific prohibition of \xc2\xa7 1008 \xe2\x80\x94 a factor not present in the Grove\nCity line of cases. Thus, a reasonable amount of functional separation may not\nonly be possible, but required. For instance, it may be reasonable in some cases\nto require that the abortion counseling be provided in a different office than the\nfamily planning counseling. This separation would become increasingly im\xc2\xad\nportant if it was the only reasonable means to segregate abortion-related\nmaterials or personnel from the family planning context.\nNevertheless, we caution that a functional separation requirement may, in a\ngiven case, be argued to be an unconstitutional condition. As we indicated\nabove, the government may not condition the receipt of Title X funds on a\ngrantee\xe2\x80\x99s promise not to undertake abortion-related activities with\nnongovernment funds. For the same reason, the government must be wary of\nimposing unreasonable functional separation requirements. Thus, it is impor\xc2\xad\n15 O f course, if a program were conducted within a separate corporate entity, it might strengthen the\nconclusion that a distinct program existed. Cf. Eivins v. Adventist Health System/Eastern & Middle America,\nInc., 6S1 F. Supp. 340 (D. K ansas 1987) (holding as a m atter o f law that a nonprofit corporation acting as a\nholding corporation for certain hospitals and providing services to others was not within the sam e \xe2\x80\x9cprogram "\nas such hospitals) B ut this conclusion does not support the converse: that an activity m ust be separately\nincorporated to constitute a program.\n\n87\n\n\x0ctant that the new guidelines requiring a level of functional separation impose\nrestrictions that can be feasibly complied with by grantee organizations that\nalso provide abortion-related programs with nongovernmental funds.*\nD o u g l a s W . K m ie c\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x99\xa6NO TE: Subsequent to th is opinion, H H S prom ulgated the regulations discussed herein. 53 Fed. Reg. 2922\n(198 8 ) (co d ified at 42 C .F.R . Part 59). A facial challenge to the regulations was rejected by the Supreme\nC ourt, w hich held that they constituted a perm issible construction o f \xc2\xa7 1008 and w ere consistent with the\nFirst and Fifth A m endm ents to the C onstitution. Rust v. Sullivan , 111 S. Ct. 1759 (1991).\n\n88\n\n\x0c'


b'Septem ber 26, 1977\n\n77-53\n\nMEMORANDUM OPINION FOR THE\nUNITED STATES ATTORNEY FOR THE\nDISTRICT OF COLUMBIA\nConstitutionality of 18 U.S.C. \xc2\xa7 1302\xe2\x80\x94Lotteries\n\nThis is in response to your request for our opinion on the constitu\xc2\xad\ntionality o f 18 U.S.C. \xc2\xa7 1302 as applied to the publication of advertise\xc2\xad\nments in The Washington S tar by the Maryland Lottery Commission for\nthe M aryland State Lottery. The advertisements consist of a list of\nwinning lottery numbers and the State lottery\xe2\x80\x99s logo and slogan. They\ndo not include entry blanks, mailing addresses, or other invitations to\nuse the mails to purchase lottery tickets to be sent from Maryland. We\nconclude that in these circumstances the First Amendment prohibits the\napplication of 18 U.S.C. \xc2\xa7 1302 to the Star.1\nThis situation is almost identical to that involved in Bigelow v. Virgin\xc2\xad\nia, 421 U.S. 809 (1975). T h e Supreme Court held that a commercial\nadvertisement in a Virginia newspaper for a lawful abortion referral\nservice in New York was protected by the First Amendment although\nabortions were illegal in Virginia at that time. T he Court stated that the\ncitizens o f a jurisdiction w here a service is illegal have the right to\ntravel to a jurisdiction w here it is lawful in order to purchase it, and\nthey have the concomitant First Amendment right to receive truthful\ncommercial information that it is available despite the public policy of\nthe home jurisdiction. Bigelow, at 821-25. Thus the Star would probably\nbe protected by the First Amendment in printing advertisements intend1 18 U.S.C. \xc2\xa7 1302 provides in pertinent part:\nW hoever knowingly deposits in th e mail, or sends or delivers by mail:\n\xe2\x80\xa2\n\n*\n\n*\n\n\xc2\xbb\n\n*\n\nA ny newspaper, circular, pamphlet, or publication of any kind containing any advertise\xc2\xad\nment o f any lottery, gift enterprise, or scheme of any kind offering prizes dependent in\nwhole or in part upon lot or chance, or containing any list of the prizes drawn or\nawarded by means o f any such lottery, gift enterprise, o r scheme, whether said list\ncontains any part o f all of such prices; . . .\n*\n\n*\n\n*\n\n*\n\n*\n\nShall be fined not more than $1,000 o r imprisoned not more than tw o years, o r both; . . .\n\n214\n\n\x0ced to induce residents of the District of Columbia or Virginia to come\nto Maryland to buy lottery tickets.\nWe also note that one circuit court of appeals has held that the First\nAmendment protects the right of the news media in one State to\npublish the results of another State\xe2\x80\x99s legal lottery as an item of news\ninterest. New Jersey State Lottery Commission v. United States. 491 F. 2d\n219 (3rd Cir. 1974), vacated as moot, 420 U.S. 371 (1975). The advertise\xc2\xad\nments in question may be considered to have news interest even though\npaid for by the advertiser. Cf., New York Times Co. v. Sullivan, 376\nU.S. 254, 265-66 (1964). But an advertisement that invited readers to\nuse the mails to purchase lottery tickets within a jurisdiction w here this\nis illegal, is arguably an unprotected invitation to violate the law. See,\nBigelow, supra, at 826-29 (1975).\nL eon U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n215\n\n\x0c'


b"Constitutionality o f Subsection 4117(b) of Enrolled Bill\nH.R. 5835, the \xe2\x80\x9cOmnibus Budget Reconciliation Act of 1990\xe2\x80\x9d\nT h e c o n d itio n s im p o s e d o n action b y th e S e c re ta ry o f H e a lth a n d H u m a n S e rv ic e s b y s u b s e c \xc2\xad\nt i o n 4 1 1 7 ( b ) o f t h e O m n ib u s B u d g e t R e c o n c ilia tio n A c t o f 1 9 9 0 v io la te e i t h e r th e\nA p p o in tm e n ts C la u s e o r the b ic a m e r a lis m a n d p re s e n tm e n t re q u ire m e n ts o f th e C o n s titu \xc2\xad\ntio n . T h e s u b se c tio n is also u n c o n stitu tio n a l in s o fa r as it a tte m p ts to c o n fe r fed eral la w m a k in g\np o w e r o n S ta te o rg a n iz a tio n s. '\n\nIn th e e v e n t th a t th e P re sid e n t s ig n s th e bill in to la w , he m a y d ire c t th a t th e u n c o n stitu tio n a l\nc o n d itio n s im p o s e d b y su b se c tio n 4 1 17(b) b e g iv e n n o le g a l fo rce o r e ffe c t.\n\nNovember 5, 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 responds to your request for our advice concerning the constitution\xc2\xad\nality o f subsection 4117(b) o f enrolled bill H.R. 5835, the \xe2\x80\x9cOmnibus Budget\nReconciliation Act of 1990.\xe2\x80\x9d For the reasons set forth below, we believe\nthat the conditions imposed on action by the Secretary of Health and Human\nServices in subsection 4117(b) violate either the Appointments Clause, U.S.\nConst, art. II, \xc2\xa7 2, cl. 2, or the bicameralism and presentment requirements\nin Article I, Section 7 of the Constitution. We are further of the view that,\nin the event that the President approves the bill, he may direct that the\nrequirements imposed by subsection 4117(b) be given no legal force or effect.\nSection 4117 provides in relevant part:\n(a)\nIn General. \xe2\x80\x94 Notwithstanding section 1848(j)(2) of\nthe Social Security Act (42 U.S.C. 1395w-4(j)(2)) [which de\xc2\xad\nfines \xe2\x80\x9cfee schedule areafs]\xe2\x80\x9d in terms of \xe2\x80\x9clocalities]\xe2\x80\x9d], in the\ncase of the States of Nebraska and Oklahoma, if the respec\xc2\xad\ntive State meets the requirements specified in subsection (b)\n\n' E d ito r\xe2\x80\x99s N o te: T h e h o ld in g of this o p in io n relating to the A ppointm ents C la u se has been disavow ed.\n\nSee M em o ra n d u m fo r th e G eneral C o u n se ls o f the F ed eral G o vernm ent, from W alter D ellinger, A ssis\xc2\xad\nta n t A tto rn e y G e n eral, Re: The Constitutional Separation o f Powers between the President and Con\xc2\xad\ngress, a t 20-21 n.53 (M ay 7, 1996).\n\n154\n\n\x0con or before April 1, 1991, the Secretary of Health and Human\nServices . . . shall treat the State as a single fee schedule area\nfor purposes of determining \xe2\x80\x94\n(1) the adjusted historical payment basis (as de\xc2\xad\nfined in section 1848(a)(2)(D) of such Act\n(42 U.S.C. 1395w-4(a)(2)(D))), and\n(2) the fee schedule amount (as referred to in\nsection 1848(a) (42 U.S.C. 1395w-4(a)) of\nsuch Act),\nfor physicians\xe2\x80\x99 services (as defined in section 1848(j)(3) of\nsuch Act (42 U.S.C. 1395w-4(j)(3))) furnished on or after Janu\xc2\xad\nary 1, 1992.\n(b) Requirements. \xe2\x80\x94 The requirements specified in this sub\xc2\xad\nsection are that (on or before April 1, 1991) there are written\nexpressions of support for treatment of the State as a single\nfee schedule area (on a budget-neutral basis) from \xe2\x80\x94\n(1) each member of the congressional delega\xc2\xad\ntion from the State, and\n(2) organizations representing urban and rural\nphysicians in the State.\nIn effect, subsection 4117(b) grants \xe2\x80\x9ceach member of the congressional del\xc2\xad\negation\xe2\x80\x9d from the States of Nebraska and Oklahoma and \xe2\x80\x9corganizations\nrepresenting urban and rural physicians in the State\xe2\x80\x9d the power to determine,\nab initio, whether \xe2\x80\x9cthe Secretary of Health and Human Services . . . shall\ntreat the States as a single fee schedule area\xe2\x80\x9d for the purposes enumerated in\nsubsection 4117(a).\nIn our view, the power to determine whether or not the Secretary shall\ntreat the States of Nebraska and Oklahoma as a single fee schedule area\nclearly affects physicians\xe2\x80\x99 \xe2\x80\x9celigibility for funds\xe2\x80\x9d in those States, and there\xc2\xad\nfore constitutes the exercise of \xe2\x80\x9csignificant authority pursuant to the laws of\nthe United States,\xe2\x80\x9d Buckley v. Valeo, 424 U.S. 1, 126, 140 (1976). Such\nauthority must be exercised by persons appointed as Officers of the United\nStates in conformity with the Appointments Clause, U.S. Const, art. II, \xc2\xa7 2,\ncl. 2. Buckley, 424 U.S. at 140-41; see also Bowsher v. Synar, 478 U.S. 714,\n726 (1986) (\xe2\x80\x9cThe structure of the Constitution does not permit Congress to\nexecute the laws . . . .\xe2\x80\x9d). Since neither the members of State congressional\ndelegations nor \xe2\x80\x9corganizations representing urban and rural physicians in the\n155\n\n\x0cState\xe2\x80\x9d are Officers o f the United States appointed consistent with Article II,\nsubsection 4 1 17(b) unconstitutionally delegates executive power to these en\xc2\xad\ntities. Indeed, the members o f State congressional delegations could not be\nappointed Officers of the United States without violating the Incompatibility\nClause, U.S. Const, art. I, \xc2\xa7 6, cl. 2.\nAlternatively, by conditioning the Secretary\xe2\x80\x99s action on the prior approval\no f certain members of Congress, subsection 4117(b) permits several Mem\xc2\xad\nbers of Congress to take action that \xe2\x80\x9calter[s] the legal rights, duties and\nrelations of persons\xe2\x80\x9d while evading the bicameralism and presentment re\xc2\xad\nquirem ents in Article I, Section 7. INS v. Chadha, 462 U.S. 919, 952 (1983).\nStatutory arrangements of this kind are clearly unconstitutional. Id. at 959.\nFurthermore, subsection 4117(b) is unconstitutional insofar as it attempts to\nconfer lawmaking power on State organizations, because only Congress has\nthe authority to exercise the \xe2\x80\x9c legislative Powers\xe2\x80\x9d of the federal government.\nU.S. Const, art. I, \xc2\xa7 1.\nAt least in the context o f legislation that infringes upon the President\xe2\x80\x99s\nconstitutional authority, and thereby violates the constitutional principle of\nseparate powers, the President may refuse to enforce unconstitutional re\xc2\xad\nquirements. See Issues Raised by Foreign Relations Authorization Bill, 14\nOp. O.L.C. 37, 50 (1990). Accordingly, we believe that, consistent with the\nConstitution, the President may treat the unconstitutional condition in sub\xc2\xad\nsection 4 1 17(b) as having no legal force or effect.1\nJ. MICHAEL LUTTIG\nAssistant Attorney General\nOffice o f Legal Counsel\n\n' G iv e n th e in v a lid ity o f subsection 4 1 17(b) o f the statu te, it w ill be n ecessary to d eterm ine w helher the\nd ire c tio n to th e S e c re ta ry in subsection 4 1 17(a) is sev erab le from the u n constitutional condition. Alaska\nA irlines, Inc. v. Brock, 4 8 0 U .S. 678, 6 8 4 -8 7 (1987).\n\n156\n\n\x0c"