b'Designation of Acting Associate Attorney General\nPhil Perry, who has already been designated as the first assistant to the office of the Associate Attorney\nGeneral by virtue of his appointment as the Principal Deputy Associate Attorney General, may,\nconsistent with the Vacancies Reform Act of 1998, serve as the Acting Associate Attorney General\neven though he was not the first assistant when the vacancy occurred.\nBecause the President has not designated another person as the Acting Associate Attorney General\nunder the Vacancies Reform Act, Mr. Perry, as the Principal Deputy, is required to perform the\nfunctions and duties of the office of the Associate Attorney General in an acting capacity.\n\nAugust 7, 2001\n\nMEMORANDUM OPINION FOR THE ASSOCIATE COUNSEL TO THE PRESIDENT\nYou have asked for our opinion whether Phil Perry, the Principal Deputy Associate Attorney General, can, consistent with the Vacancies Reform Act of 1998\n(\xe2\x80\x9cthe Act\xe2\x80\x9d), 1 serve as the Acting Associate Attorney General. For the reasons set\nforth more fully below, we conclude that unless the President designates another\nperson as the Acting Associate Attorney General under the Act, Mr. Perry, as the\nPrincipal Deputy, is actually required to perform the functions and duties of the\noffice of the Associate Attorney General in an acting capacity.\nI.\nOn January 20, 2001, Daniel Marcus, the Associate Attorney General resigned.\nTwo days after the vacancy in the Associate Attorney General\xe2\x80\x99s office occurred,\nMr. Perry arrived at the Department of Justice (\xe2\x80\x9cthe Department\xe2\x80\x9d) as part of the\nnew administration\xe2\x80\x99s transition team. On July 16, 2001, Mr. Perry was officially\nappointed the Principal Deputy Associate Attorney General. As of this date, the\nPresident has not yet publicly announced who he intends to nominate as Associate\nAttorney General. It is our understanding, however, that the President intends to\nnominate someone other than Mr. Perry for the position.\nII.\nThe Act, which took effect on November 20, 1998, replaced the old Vacancies\nAct and altered the manner in which vacancies in presidentially appointed, Senateconfirmed offices within the Executive Branch could be \xe2\x80\x9cfilled\xe2\x80\x9d on a temporary\nbasis. Under the Act, any one of three categories of individuals is eligible to serve\nin such an office in an acting capacity:\n\n1\nPub. L. No. 105-277, \xc2\xa7 151(b), 112 Stat. 2681-611 (1998) (codified at 5 U.S.C. \xc2\xa7\xc2\xa7 3345-3349d\n(Supp. IV 1998)).\n\n177\n\n227-329 VOL_25_PROOF.pdf 187\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\n(a) If an officer of an Executive agency . . . whose appointment to\noffice is required to be made by the President, by and with the advice\nand consent of the Senate, dies, resigns, or is otherwise unable to\nperform the functions and duties of the office\xe2\x80\x94\n(1) the first assistant to the office of such officer shall perform the\nfunctions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346;\n(2) notwithstanding paragraph (1), the President (and only the\nPresident) may direct a person who serves in an office for which\nappointment is required to be made by the President, by and with\nthe advice and consent of the Senate, to perform the functions and\nduties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or\n(3) notwithstanding paragraph (1), the President (and only the\nPresident) may direct an officer or employee of such Executive\nagency to perform the functions and duties of the vacant office\ntemporarily in an acting capacity, subject to the time limitations\nof section 3346, if\xe2\x80\x94\n(A) during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable\nofficer, the officer or employee served in a position in such\nagency for not less than 90 days; and\n(B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay\npayable for a position at GS-15 of the General Schedule.\n5 U.S.C. \xc2\xa7 3345(a). Only the first of those categories is relevant in this case. 2\nMoreover, unlike the other two categories, which require presidential action, that\ncategory is triggered automatically once a vacancy is created; the Act provides in\nrelevant part that \xe2\x80\x9cthe first assistant to the office of [the officer who resigned] shall\nperform the functions and duties of the office temporarily in an acting capacity.\xe2\x80\x9d\nId. \xc2\xa7 3345(a)(1) (emphasis added).\n\n2\nMr. Perry does not currently serve in an office for which appointment is required to be made by\nthe President, by and with the advice and consent of the Senate, see 5 U.S.C. \xc2\xa7 3345(a)(2), and he did\nnot previously serve in the Department (for any period of time, much less the required 90 days) during\nthe 365-day period preceding the resignation of Mr. Marcus, see id. \xc2\xa7 3345(a)(3)(A). Accordingly, only\n5 U.S.C. \xc2\xa7 3345(a)(1) is at issue in this case.\n\n178\n\n227-329 VOL_25_PROOF.pdf 188\n\n10/22/12 11:10 AM\n\n\x0cDesignation of Acting Associate Attorney General\n\nIII.\nAs a threshold matter, we must determine whether the Principal Deputy Associate Attorney General is, for purposes of the Act, the \xe2\x80\x9cfirst assistant\xe2\x80\x9d to the\nAssociate Attorney General. The Act itself does not define \xe2\x80\x9cfirst assistant.\xe2\x80\x9d We\nbelieve, however, that the phrase is a term of art that refers to the top deputy of a\npresidentially appointed, Senate-confirmed officer. Under this interpretation, the\nPrincipal Deputy would generally qualify as the \xe2\x80\x9cfirst assistant.\xe2\x80\x9d In any event, this\nOffice has taken the position previously that designation of a first assistant by\nregulation, if an agency\xe2\x80\x99s governing statute does not do so, is sufficient under the\nAct. See Guidance on Application of Federal Vacancies Reform Act of 1998, 23\nOp. O.L.C. 60 (1999) (\xe2\x80\x9cVRA Guidance\xe2\x80\x9d). Under Justice Department regulations,\nthe \xe2\x80\x9cPrincipal Deputy\xe2\x80\x9d within an office run by a presidentially appointed, Senateconfirmed officer is the \xe2\x80\x9cFirst Assistant\xe2\x80\x9d for purposes of the Act. See 28 C.F.R.\n\xc2\xa7 0.132 (2000). 3 Accordingly, we conclude that Mr. Perry is the \xe2\x80\x9cfirst assistant\xe2\x80\x9d to\nthe Associate Attorney General for purposes of section 3345(a)(1).\nNext, we must ascertain the scope of section 3345(a)(1). In particular, we must\ndetermine whether subsection (a)(1) applies to someone who, like Mr. Perry, was\ndesignated as first assistant after the vacancy occurred. In a memorandum\xe2\x80\x94\nprepared in question and answer format\xe2\x80\x94intended to provide agency general\ncounsels with general guidance on the Act, this Office tentatively answered that\nvery question:\nQ13. If someone is designated to be first assistant after the vacancy\noccurs, does that person still become the acting officer by virtue of\nbeing the first assistant?\nA. While the Vacancies Reform Act does not expressly address this\nquestion, we believe that the better understanding is that you must be\nthe first assistant when the vacancy occurs in order to be the acting\nofficer by virtue of being the first assistant.\nVRA Guidance, 23 Op. O.L.C. at 63-64. As the brevity of our answer makes clear,\nwe did not thoroughly consider (or definitively resolve) the issue. Indeed, our\ninitial understanding was offered without explanation or, more importantly, any\nanalysis of the Act\xe2\x80\x99s text or structure. Having now specifically considered the\nquestion in light of both the Act\xe2\x80\x99s text and structure, we conclude that our initial\nunderstanding was erroneous.\nFirst, the Act expressly applies to \xe2\x80\x9cthe first assistant to the office of [the officer\nwho resigned].\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3345(a)(1) (emphasis added). In concluding that the\n3\nIf no principal deputy position exists in an office, then the Attorney General may designate the\nfirst assistant in writing. See 28 C.F.R. \xc2\xa7 0.132.\n\n179\n\n227-329 VOL_25_PROOF.pdf 189\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nfirst assistant must be in place at the time of the vacancy, we necessarily construed\nthe Act as applying to \xe2\x80\x9cthe first assistant of [the officer who resigned].\xe2\x80\x9d Such a\nreading, however, renders the words \xe2\x80\x9cto the office\xe2\x80\x9d meaningless. See Moskal v.\nUnited States, 498 U.S. 103, 109-10 (1990) (stressing that a statute must be\nconstrued in such a fashion that gives every word some operative effect). This is\nparticularly troublesome given that the Act specifically modified the old Vacancies Act by replacing the phrase \xe2\x80\x9cto the officer\xe2\x80\x9d with the phrase \xe2\x80\x9cto the office.\xe2\x80\x9d\nSee 144 Cong. Rec. S12,822 (daily ed. Oct. 21, 1998) (statement of Sen. Thompson) (noting that the term \xe2\x80\x9cto the officer\xe2\x80\x9d had been part of the old Vacancies Act\nsince 1868). Under the most natural reading of the Act, an individual need only be\nthe first assistant to the office of the presidentially appointed, Senate-confirmed\nofficer who resigned. And, unlike our initial interpretation, such a reading does not\nrequire that the first assistant be in place at the time the vacancy occurred to be the\nacting officer by virtue of being the first assistant.\nSecond, our initial interpretation of subsection (a)(1), if correct, would also\nrender subsection (b)(1)(A)(i) superfluous. See Freytag v. Comm\xe2\x80\x99r, 501 U.S. 868,\n877 (1991) (stressing that courts should not interpret statutory provisions so as to\nrender superfluous other provisions within the same enactment). Notwithstanding\nsubsection (a)(1), subsection (b)(1) places several obstacles in the way of a first\nassistant from serving as an acting officer if the President submits the nomination\nof that person to the Senate for appointment to the office in question. 4 One of the\nobstacles set forth in subsection (b)(1) provides, in pertinent part, as follows:\nif . . . during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person . . . did not\nserve in the position of first assistant to the office of such officer.\n5 U.S.C. \xc2\xa7 3345(b)(1)(A)(i). In other words, an individual who was not the first\nassistant during the 365-day period preceding the vacancy may not serve in an\nacting capacity if the President has also nominated that person to the Senate for\nappointment to the vacant position. Of course, Congress\xe2\x80\x99s enactment of subsection\n(b)(1)(A)(i) was meaningless if an individual who was not the first assistant when\nthe vacancy occurred is already flatly prohibited from serving in an acting capacity\npursuant to subsection (a)(1), as we previously concluded. Indeed, the enactment\nof subsection (b)(1)(A)(i) was necessary only if an individual who becomes first\nassistant after a vacancy occurs could otherwise serve in an acting capacity\npursuant to subsection (a)(1). If subsection (b)(1)(A)(i) is to be given operative\neffect, which it must, our initial understanding of subsection (a)(1) must give way.\nCf. 2A Norman Singer, Sutherland on Statutes and Statutory Construction \xc2\xa7 46.06,\n\n4\nBecause the President intends to nominate a person other than Mr. Perry to the office of the\nAssociate Attorney General, these obstacles to service do not apply to him.\n\n180\n\n227-329 VOL_25_PROOF.pdf 190\n\n10/22/12 11:10 AM\n\n\x0cDesignation of Acting Associate Attorney General\n\nat 181-86 (6th ed. 2000) (\xe2\x80\x9cA statute should be construed so that effect is given to\nall its provisions, so that no part will be inoperative or superfluous, void or\ninsignificant . . . .\xe2\x80\x9d) (footnote omitted).\nGiven the Act\xe2\x80\x99s text and structure, we now believe that the better understanding\nis that an individual need not be the first assistant when the vacancy occurs in\norder to be the acting officer by virtue of being the first assistant. Accordingly, Mr.\nPerry, who has already been designated as the first assistant to the office of the\nAssociate Attorney General by virtue of his appointment as the Principal Deputy,\nmay serve as the Acting Associate Attorney General even though he was not the\nfirst assistant when the vacancy occurred. 5 Moreover, because the President has\nnot designated another person as the Acting Associate Attorney General under the\nAct, Mr. Perry, as the Principal Deputy, is required to perform the functions and\nduties of the office of the Associate Attorney General in an acting capacity.\nSHELDON BRADSHAW\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n5\nWe note that the Act imposes time limits on service in an acting capacity. An acting officer may\nserve \xe2\x80\x9cfor no longer than 210 days beginning on the date the vacancy occurs.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3346(a)(1). If\nthe vacancy exists during the 60-day period after a President is sworn into office, the 210-day clock is\nextended an additional 90 days. Id. \xc2\xa7 3349a(b). Accordingly, because the vacancy in this case occurred\non January 20, 2001, Mr. Perry may serve under this provision at least until November 16, 2001. In\naddition, once a nomination for the office is submitted to the Senate, the acting officer may serve \xe2\x80\x9cfrom\nthe date of such nomination for the period that the nomination is pending in the Senate.\xe2\x80\x9d Id.\n\xc2\xa7 3346(a)(2). The Act specifies the applicable term of service should the nomination be rejected,\nwithdrawn, or returned. Id. \xc2\xa7 3346(b).\n\n181\n\n227-329 VOL_25_PROOF.pdf 191\n\n10/22/12 11:10 AM\n\n\x0c'


b'DefemdliEg tin\xc2\xa9 Revocation of ttlln\xc2\xa9Tax-Exempt Status\n\noff Certain Private Schools im Light off\ntike AsMbroolk Amneinidliniiieinit\nT he A shbrook amendm ent\xe2\x80\x99s limitation on the expenditure of appropriated funds by the\nInternal Revenue Service (IRS) on actions that would cause the revocation o f a\nschool\'s tax-exempt status applies only prospectively, and revocation notices issued\nprior to its effective date thus remain valid.\nA bar on the expenditure o f appropriations w hich does not amend underlying substantive\nlaw will not lightly be interpreted to prohibit the Executive from appearing in court to\ndefend legally authorized actions previously taken.\nN either the plain language nor th e legislative history o f the Ashbrook amendment\nsuggests a congressional intent to bar IRS from defending its valid revocation notices\nin a court proceeding, though the manner in which IRS defends its revocation notices\nmay be relevant to whether it is complying with the spirit as well as the letter of the\nA shbrook amendment.\n\nDecember 24, 1981\nMEMORANDUM OPINION FOR TH E GENERAL COUNSEL,\nDEPARTM ENT OF TH E TREASURY\nIn connection with our analysis of the ramifications of the Ashbrook\namendment, \xc2\xa7616 of H.R. 4121, 97th Cong., 1st Sess. (1981), for future\nactions of the Department of the Treasury, you have requested an early\nresponse to the question whether your Department may engage in\ncertain pending litigation. Specifically, may the Internal Revenue Serv\xc2\xad\nice (IRS), through its Office of the Chief Counsel, consistent with the\nAshbrook amendment, answer and defend petitions filed in the United\nStates Tax Court by five formerly tax-exempt nonsectarian private\nschools challenging the revocation of their tax-exempt status under\n\xc2\xa7 501(c)(3) of the Internal Revenue Code of 1954 (Code) 26 U.S.C.\n\xc2\xa7 501(c)(3)? The notices of revocation, dated August 17, 1981, con\xc2\xad\ncluded that each of the five schools \xe2\x80\x9cno longer qualifies for continued\nexemption under section 501(c)(3).\xe2\x80\x9d These revocations occurred at a\ntime when the IRS was, as it continues to be, subject to an injunction\nissued by the district court in Green v. Miller, No. 69-1355 (D.D.C.\nMay 5, 1980) (clarified and amended June 2, 1980), the general thrust of\nwhich is to require the IRS to enforce more vigorously the implied\nprohibition in \xc2\xa7 501(c)(3) on the eligibility for tax-exempt status of\nprivate, nonprofit schools which discriminate on the basis of race.\n\n\x0cWe do not, in this memorandum, attempt to resolve the plethora of\ncomplex questions\xe2\x80\x94including those articulated by Secretary Regan in\nhis letter to the Attorney General dated October 1, 1981\xe2\x80\x94raised by the\nAshbrook amendment. The Supreme Court may resolve some of these\nquestions in the cases of Goldsboro Christian Schools, Inc. v. United\nStates and Bob Jones University v. United States, cert, granted, 454 U.S.\n892 (1981), and Regan v. Wright.* For present purposes, we shall\nsimply assume, without reaching questions of constitutionality, that the\nAshbrook amendment was intended, at least in part, to restrict your\nDepartment\xe2\x80\x99s ability to comply with the injunction issued in Green v.\nMiller. We conclude, for the reasons set forth below, that the IRS may\nfile answers to and defend the five petitions without violating any\nconstraints the Ashbrook amendment may otherwise have placed on\nthe IRS\xe2\x80\x99 administration of the Code.\nI. Background\nThe history of the Green and Wright cases, and their interrelationship\nwith the Ashbrook amendment, is extraordinarily complex.1 However,\na detailed recapitulation of that history is unnecessary for resolution of\nthe present problem. Briefly, prior to 1970, the IRS as a general rule\nrecognized non-profit private schools not receiving state aid as taxexempt, charitable institutions under \xc2\xa7 501(c)(3) of the Code and as\neligible donees of charitable contributions deductible under \xc2\xa7 170(a) and\n(c)(2) of the Code regardless whether the school was racially discrimi\xc2\xad\nnatory. In 1971, the district court in Green v. Connally, 330 F. Supp.\n1150, 1171, 1179 (D.D.C.) (three-judge court), a ffd mem. sub nom. Coit\nv. Green, 404 U.S. 997 (1971), held, as a matter of statutory interpreta\xc2\xad\ntion, that the Internal Revenue Code requires denial of tax-exempt\nstatus and deductibility of contributions to private schools practicing\nracial discrimination.2 Plaintiffs in Green reopened the litigation in\n1976, alleging that the IRS had failed to enforce effectively the earlier\norder that racially discriminatory private schools in Mississippi be\ndenied tax-exempt status.3 That action resulted in a modified and ampli\xe2\x80\xa2 N o t e . The Supreme Court\xe2\x80\x99s opinion in Bob Jones University v. United States is pnnted\n461 U.S.\n574 (1983); its opinion in the Wright case appears a t _U.S.\n104 S. Ct. 3315 (1984), sub nom. Allen\nv. Wright. Ed.\n1 See Wright v . Regan, 656 F.2d 820, 823-26 (D.C. Cir.) (1981) (detailing history of the case); Note,\nThe Judicial Role in Attacking Racial Discrimination in Tax-Exempt Private Schools, 93 Harv. L. Rev.\n378, 379-84 (1979). See also Neuberger & Crumplar, Tax Exempt Religious Schools Under Attack:\nConflicting Goals o f Religious Freedom and Racial Integration, 48 Fordham L. Rev. 229 (1979) (general\ndiscussion of court, agency, and congressional action in this area).\n2 To support this determination, the court reasoned that with respect to private schools, \xc2\xa7 501(c)(3)\nmust be read in a manner consistent with federal civil rights legislation and the overriding national\npolicy against racial discrimination in educational facilities. See also Runyon v. McCrary, 427 U.S. 160\n(1976); Brown v. Board o f Education, 347 U.S. 483 (1954); \xc2\xa7 1 of the Civil Rights Act o f 1866, 14 Stat.\n27, 42 U S.C . \xc2\xa7 1981; Pub. L. No. 94-568, Sec. 2(a), 90 Stat. 2697 (1976) (prohibition o f tax-exempt\nstatus for social club whose charter or governing instrument provides for discrimination).\n3 At the same time, parents of black children in desegregating school districts in seven states\ncommenced a class action seeking nationwide relief on a basis similar to that sought in Mississippi in\nContinued\n\n445\n\n\x0cfled injunction against the IRS which went beyond the guidelines the\nIRS had adopted in the wake of the first Green decision to determine\nwhether schools seeking or holding exempt status are in fact discrimina\xc2\xad\ntory.4 The district court enjoined the IRS from granting tax-exempt\nstatus to private Mississippi schools: (1) adjudged racially discrimina\xc2\xad\ntory in adversary or administrative proceedings; or (2) established or\nexpanded at the time of local public school desegregation unless the\nschools \xe2\x80\x9cclearly and convincingly\xe2\x80\x9d demonstrate that they observe nondiscriminatory policies and practices in \xe2\x80\x9cadmissions, employment,\nscholarships, loan programs, athletics and extra-curricular programs.\xe2\x80\x9d\nGreen v. Miller, No. 69-1355, at 2 (D.D.C. May 5, 1980) (clarified and\namended June 2, 1980).5 Subsequent to the court order, the IRS, in the\ncourse of its surveys and examinations of private schools, sent the five\nnotices of revocation of tax-exempt status that are presently being\nchallenged in the Tax Court under 26 U.S.C. \xc2\xa7 7428.\xc2\xae\nIn order to determine whether those actions can now be answered\nand defended in Tax Court, they must be viewed against the backdrop\nof the Ashbrook amendment. Section 616, which Congressman\nAshbrook offered as an amendment to the Treasury Department, Postal\nService, and General Government Appropriations Bill for the fiscal\nyear 1982, provides:\nNone of the funds made available pursuant to the provi\xc2\xad\nsions of this Act shall be used to formulate or carry out\nany rule, policy, procedure, guideline, regulation, stand\xc2\xad\nard, court order, or measure which would cause the loss\nof tax-exempt status to private, religious, or church-oper\xc2\xad\nated schools under section 501(c)(3) of the Internal Reve\xc2\xad\nnue Code of 1954 unless in effect prior to August 22,\n1978.\nSection 616 passed the House on July 30, 1981. See 127 Cong. Rec.\nH5398 (daily ed. July 30, 1981). It was approved by the Senate Com\xc2\xad\nmittee on Appropriations on September 15, 1981. See 127 Cong. Rec.\nD1057 (daily ed. Sept. 15, 1981). Although the House bill has not yet\nthe reopened Green case. See Wright v. Regan, 656 F.2d 820, 825, 829-30, 835 (D.C. Cir. 1981). While\nGreen has a long history and involves Mississippi schools alone, the issues in the two cases are\nessentially the same. M oreover, the original Green court specifically noted that its interpretation of\n\xc2\xa7 501(c)(3) was not confined to the situation in Mississippi. Rather \xe2\x80\x98*[t]he underlying principle is\nbroader, and is applicable to schools outside Mississippi with the same or similar badge of doubt.*\xe2\x80\x99\nGreen v. Connally, 330 F. Supp. at 1174. The Ashbrook amendment does not, on its face, distinguish\nbetween schools inside and outside Mississippi.\n4 See, e.g.t Rev. Proc. 72-54, 1972-2 C.B. 834; Rev. Proc. 75-50, 1975-2 C.B 587.\n6 T he district court has subsequently stayed its order insofar as it applies to private sectarian\nschools. See Suspension o f Court\xe2\x80\x99s O rders of May 5, 1980, and June 2, 1980 (D.D.C. July 13, 1981).\n6\nSection 7428 o f Title 26 provides th at an organization whose qualification, or classification under\n\xc2\xa7 501(c)(3) is in issue may file within 90 days a petition in the United States Tax Court, the United\nStates C ourt o f Claims, o r the district co u rt of the United States for the District of Columbia, seeking\na declaratory judgm ent with respect to such initial qualification, continuing qualification, or revoca\xc2\xad\ntion.\n\n446\n\n\x0cbeen enacted, the restrictions contained in \xc2\xa7 616 were temporarily effec\xc2\xad\ntive from October 1, 1981, until November 20, 1981, pursuant to Pub.\nL. No. 97-51, 95 Stat. 958 (1981), the continuing Appropriations Act.\nThat Act was extended, by amendment, to December 15, 1981. See\nPub. L. No. 97-85, 95 Stat. 1098 (1981). On December 15, a joint\nresolution further extending these conditions for fiscal year 1982,\nbecame law. See Pub. L. No. 97-92, 95 Stat. 1183 (1981).7\nSection 616 is Congress\xe2\x80\x99 most recent attempt to limit what it per\xc2\xad\nceives to be unwarranted governmental interference with private sec\xc2\xad\ntarian and nonsectarian schools. The amendment is substantially similar\nto amendments sponsored by Congressmen Ashbrook and Doman to\nTreasury appropriations for fiscal years 1980 and 1981.8 These \xe2\x80\x9criders\xe2\x80\x9d\nwere intended to preserve guidelines the IRS had adopted prior to\nAugust, 1978 to identify racially discriminatory private schools and to\nprevent the IRS from augmenting those guidelines with more aggres\xc2\xad\nsive procedures and detailed reporting requirements. See 125 Cong.\nRec. 18,444-50 (1979); id. at 18812-16 (1979); id. at 22,876-928 (1979);\nid. at 23,204-11 (1979); 126 Cong. Rec. 15,383 (1980); id. at 21,981-90\n(1980); id. at 22,166-70 (1980). Originally, these provisions were ex\xc2\xad\nplained as attempts to rechannel the responsibility for formulating tax\npolicy from the IRS to Congress or the courts,9 and they have been so\ninterpreted by a court.10\nThe fiscal year 1982 Ashbrook amendment differs, however, in scope\nand impact: the earlier language was altered by inserting \xe2\x80\x9ccourt\norder.\xe2\x80\x9d 11 Inasmuch as the Ashbrook amendment can now be read on\nits face to prohibit the use of appropriations to \xe2\x80\x9ccarry out any . . .\ncourt order . . . which would cause the loss of tax-exempt status . . .\nunless in effect prior to Aug. 22, 1978,\xe2\x80\x9d there may be conflicts between\n\xc2\xa7616 and the obligations of the IRS under the modified Green injunc\xc2\xad\ntion. The specific potential conflict at issue here is whether \xc2\xa7 616 affects\nthe IRS\xe2\x80\x99s ability to defend the actions brought in the Tax Court.\n\n7 Similar to Pub. L. No 97-51, a proviso to \xc2\xa7 101(aX3) o f Pub. L. No. 97-92 states that \xe2\x80\x9cwhen an\nAct listed in this subsection has been reported to a House, but not passed by that House as of\nDecember 15, 1981, it shall be deemed as having been passed by that H ouse\xe2\x80\x9d The Treasury, Postal\nService, and General Government Appropriations Act o f 1982 is listed in subsection (a) and has been\nreported to the floor of the Senate by the Senate Committee on Appropriations. Thus, the amendment\ninvolved here is now effective.\n6 See Treasury, Postal Service, and General Government Appropriations Act, 1980, Pub. L. No.\n96-74, 93 Stat 559, \xc2\xa7\xc2\xa7 103, 615 (1979); restriction reinstated on December 16, 1980, effective through\nSeptember 30, 1981, Pub. L. No. 96-536, 94 Stat. 3166, \xc2\xa7\xc2\xa7 101(a)(1), 101(a)(4) (1980); as amended Pub.\nL. No. 97-12, 95 Stat. 95, \xc2\xa7401 (1981).\n9 See 125 Cong. Rec. 18,447 (1979) (remarks o f Rep. Ashbrook).\n10 See Wright v. Regan. 656 F.2d 820, 835 (D.C. Cir. 1981) (\xe2\x80\x9criders are holding orders and they\nhold only the IRS, they do not purport to control judicial dispositions.\xe2\x80\x9d), petition for certiorari filed,\nRegan v. Wright, No. 81-970 (Nov. 23, 1981).\n" S e e 127 Cong. Rec. H5392, 5398 (daily ed. July 30, 1981).\n\n447\n\n\x0cThe first question to be addressed is whether the notices of revoca\xc2\xad\ntion sent out by the IRS on August 17, 1981, are themselves nullified\nby the Ashbrook amendment, which became operative on October 1,\n1981. The plain language of \xc2\xa7 616 does not indicate that it should apply\nretroactively. As written, it is future-oriented: no appropriations \xe2\x80\x9cshall\nbe used,\xe2\x80\x9d not \xe2\x80\x9cno appropriations should have been used.\xe2\x80\x9d Nor could a\nprovision forbidding the use o f appropriations logically be read to make\nprior expenditures illegal. Were that possible, persons who had prop\xc2\xad\nerly authorized the obligation of appropriations under the previous law\ncould be subjected, ex post facto, to criminal prosecution under the\nAntideficiency Act, 31 U.S.C. \xc2\xa7 665, in violation of the Constitution.\nU.S. Const., Art. I, \xc2\xa7 9, cl. 3.12\nIn addition, a general rule o f statutory construction is that retroactive\napplication of statutes is not assumed absent explicit congressional\nintent to the contrary. See Nichols v. Coolidge, 274 U.S. 531, 542 (1927)\n(tax which applied retroactively so as to burden past lawful transactions\nviolated Fifth Amendment); Billings v. United States, 232 U.S. 261, 282\n(1914) (statutes should be so construed as to prevent them from operat\xc2\xad\ning retroactively). We have carefully reviewed the legislative history\nand find no evidence whatsoever that Congress intended \xc2\xa7 616 to apply\n12\nW e note that the Ashbrook amendment to the 1980 Appropriations Act, which was the govern\xc2\xad\ning law prior to O ctober 1, 1981, did not prohibit any actions taken pursuant to a court order. (Section\n103 of the Treasury, Postal Service, and General Governm ent Appropriations Act, 1980, Pub. L. No.\n96-74, 93 Stat. 562, expired on September 30, 1980, the end of the 1980 fiscal year, but was reinstated\nfor the period D ecember 16, 1980, through the close o f the 1981 fiscal year, by \xc2\xa7 101(aX4), H.R. J.\nRes. 644 o f D ec. 16, 1980, Pub. L. No. 96-536, 94 Stat. 3166, as amended by \xc2\xa7401, Supplemental\nA ppropriations and Rescission Act, 1981, Pub. L. No 97-12, 95 Stat. 95.) That section read:\nNone of the funds made available pursuant to the provisions o f this Act shall be used\nto formulate or carry out any rule, policy, procedure, guideline, regulation, standard,\no r measure which would cause the loss of tax-exempt status to private, religious, or\nchurch-operated schools under section 501(c)(3) o f the Internal Revenue Code o f 1954\nunless in effect prior to August 22, 1978.\nW hen Congressman Ashbrook initially proposed \xc2\xa7 103, he described it as a holding order on the IRS,\nnot the courts. \xe2\x80\x9cW e are just saying do not go forward with these broad regulations or procedures,\n. . . until the Congress or a court affirmatively acts on that subject.\xe2\x80\x9d 125 Cong. Rec. 18,447 (1979)\n(remarks o f Rep. Ashbrook). Thus, neither the plain language nor the legislative history of the 1980\nfiscal year Ashbrook amendment\xe2\x80\x94the applicable law on August 17, 1981\xe2\x80\x94prohibited sending out the\nrevocation letters.\nAlthough Congressman Ashbrook attem pted to expand the scope o f his amendment a year later so\nas to affect court orders as well, the C hair ruled that the amendment was out o f order. 126 Cong. Rec.\n21,980 (1980). Congressman Ashbrook then offered an alternative version which was adopted by the\nHouse, with respect to which he stated: t4T he new version of the amendment does not challenge the\nMay 5 Green order, . . . it does not address or seek to alter the order o f Judge H art in the Green case\nor the implementation of that order in the State of Mississippi.\xe2\x80\x9d 126 Cong. Rec. 22,166 (1980). This\namendm ent never became law, because Congress failed to pass the 1981 fiscal year Appropriations\nAct. Funding was authorized pursuant to a continuing budget resolution which incorporated existing\n1980 restrictions, including the earlier Ashbrook amendment. But at no point prior to the appropria\xc2\xad\ntion rider for 1982 did Congress regard either the Ashbrook or D oraan amendments as interfering\nwith the enforcem ent o f outstanding co u rt orders. See also 126 Cong. Rec. 17,508 (remarks o f Sen.\nJavits) (1980); 126 Cong. Rec. at 21,983 (remarks of Rep. Dom an) (1980); id at 21,984 (ruling of the\nChair).\n\n\x0cretroactively.13 We therefore conclude that \xc2\xa7 616 in no way affects the\nadministrative actions taken by the IRS on August 17, 1981.14\nThe next question is whether the IRS can defend challenges to those\nrevocation notices brought under 26 U.S.C. \xc2\xa7 7428 and filed in the Tax\nCourt on November 17, 1981. Under rules of the Tax Court, the IRS\nmust respond to at least one of the five petitions by January 11, 1982.\nWe understand from IRS attorneys that the proceedings before the Tax\nCourt will be ones in which any facts upon which the administrative\ndeterminations were made may be determined de novo by the Tax Court\nat trial of the causes. Any relevant evidence supporting contentions\nraised during the administrative revocation process may be raised\nbefore the Tax Court by either the IRS or the organization. See Incor\xc2\xad\nporated Trustees o f the Gospel Workers Society v. United States, 81-1\nUSTC H9174, n.6 (D.D.C. 1981). But cf. Prince Edward School Founda\xc2\xad\ntion v. C.I.R., 478 F. Supp. 107, 110 (D.D.C. 1979) a ff d by unpublished\norder, No. 79-1622, cert, denied, 450 U.S. 944 (1981) (judicial review\nlimited to review for error of administrative determination). In its\nanswers to the five petitions, the IRS expects to deny most of the\nparagraphs of the petitions. Trial would not be held in any of the cases\nuntil May 1, 1982, at the earliest, with legal memoranda to be submitted\nsubsequent to the trial.\nThe plain language of \xc2\xa7 616, while prohibiting the use of funds either\nto formulate rules and regulations or to carry out guidelines or court\norders which were not in effect prior to August 22, 1978, does not\naddress specifically the appearance of the Executive in court. We\nwould generally be most reluctant to give \xc2\xa7 616 a reading that Congress\nintended to bar the Executive from performing its quintessential func\xc2\xad\ntion of appearing in court to support legally authorized actions it had\npreviously taken. We would be particularly reluctant to give such a\nreading to a statute making appropriations (and, as here, denying the\nuse of appropriations), because such a statute does not amend underly\xc2\xad\ning substantive law\xe2\x80\x94it merely suspends the use of appropriations for so\nlong as the statute remains in force. It would also, we believe, be\nanomalous to attribute to Congress in 1981 an intent on the one hand to\nleave the notices of revocation unchanged and an intent on the other\nhand to prohibit the defense of those administrative notices in the Tax\nCourt. Such potentially inconsistent effects should be resolved, if possi\xc2\xad\nt3See 127 Cong. Rec. H5392-98 (daily ed. July 30, 1981). Indeed, during floor debate over his 1982\nfiscal year version, Congressman Ashbrook himself expressed doubts that even that proposal would\naffect the ability of the IRS to comply fully with the Green v. Miller injunction within the State of\nMississippi See 127 Cong. Rec. H5394 (daily ed. July 30, 1981) (exchange between Reps. Ashbrook\nand Gradison). W e assume for present purposes that the 1982 fiscal year version was intended to\ninterdict compliance w ith the Green v. Miller order after October 1, 1981, without deciding that issue.\n14 Analogously, the court of appeals in Wright v. Regan. 656 F 2 d at 832-35, reached a parallel\nconclusion that the enactment by Congress of the Ashbrook amendment (\xc2\xa7 103) and D ornan amend\xc2\xad\nment (\xc2\xa7 615) to the Treasury, Postal Service, and General Government Appropriations Act, 1980, Pub.\nL No. 96-74, 93 Stat. 559, was prospective in operation: an attempt to stay further IRS initiatives.\n\n449\n\n\x0cble, in favor of permitting the agency to defend its prior, permissible\nactions, rather than forcing a reading that would require the Executive\nto default in court. Moreover, our earlier conclusion\xe2\x80\x94that Congress\ndid not intend to nullify the letters of revocation\xe2\x80\x94leaves the underly\xc2\xad\ning substantive rule of law to be relied upon in the Tax Court outstand\xc2\xad\ning. Cf. Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18\nHow.) 421 (1855) (Congress explicitly changes the substantive rule of\nlaw supporting prior decision.). If neither \xc2\xa7 501(c)(3) nor the notices of\nrevocation have been amended or extinguished, it would be illogical to\nfind in the Ashbrook amendment an intent to prohibit the Executive\nfrom responding to challenges to the revocation letters.\nNotwithstanding these considerations, however, the complex history\nof the Ashbrook amendments suggests that we should examine the\nmanner in which the defense in the Tax Court might be construed as\ncarrying out a court order, namely the Green v. M iller injunction,\nentered after August 22, 1978, and therefore as potentially violative of\nthe spirit of the Ashbrook amendment. Significantly, the modified\nGreen v. M iller injunction does not mention the issue of the IRS\ndefending actions in the Tax Court. Nor would the district court judge\npresume to dictate the proceedings in another tribunal. Cf. GTE Sylvania, Inc. v. Consumers Union o f the United States, 445 U.S. 375 (1980)\n(agency complying with order in one court\xe2\x80\x99s proceeding should not be\nrequired to commit contempt of that court because of contradictory\norder from {mother court). The Tax Court functions independently in\ndetermining what legal standard should govern under the present cir\xc2\xad\ncumstances and whether o r not the petitioner organizations are taxexempt. See Prince Edward School Foundation v. C.I.R., 478 F. Supp.\n107, 111-12 (D.D.C. 1979), a ffd by unpublished order, No. 79-1622\n(D.C. Cir. June 30, 1980), cert, denied, 450 U.S. 944 (1981) (validity of\nparticular revenue procedure does not bear on court\xe2\x80\x99s interpretation of\nthe prerequisites for \xc2\xa7 501(c)(3) status and its ultimate decision whether\nor not plaintiff is exempt under that section). Therefore, the IRS, as an\ninitial matter, would not logically turn to the rules developed in the\nrecent Green order for instruction as to its present defense to the\nchallenges under 26 U.S.C. \xc2\xa7 7428 in the Tax Court.\nSeveral options, independent of the modified Green injunction and\ncompatible with the Ashbrook amendment, would be available to the\nIRS in the Tax Court proceedings. The IRS could base its defense of\nthe revocations on a determination that the schools involved have\nviolated Rev. Proc. 75-50 or other pre-August 22, 1978, law, either by\nfailing to demonstrate affirmatively the adoption, communication, and\nobservance of a nondiscriminatory policy or by failing to fulfill the\nequivalent duty of a meaningful communication of a nondiscriminatory\n450\n\n\x0cpolicy.15 Under this analysis, the IRS would take the position that the\nschools have allegedly failed to demonstrate that they operate on a\nracially nondiscriminatory basis in conformity with the original order in\nGreen v. Connally, 330 F. Supp. 1150 (D.D.C.) (three-judge court) a ffd\nsub nom. Coit v. Green, 404 U.S. 997 (1971), and Rev. Proc. 75-50, both\nof which were consciously left undisturbed by the Ashbrook amend\xc2\xad\nment.\nIt is also possible that, at some time during the litigation in the Tax\nCourt, the IRS might desire to argue that the schools had not success\xc2\xad\nfully rebutted a factual inference of discrimination raised by the circum\xc2\xad\nstances surrounding their creation, or their substantial expansion, at\napproximately the time of a local desegregation order. While such a\nposition could arguably be linked to the language of the modified Green\nv. Miller injunction, the IRS had actual knowledge of the relevant facts\nsurrounding the schools\xe2\x80\x99 formation independent of that court order. See\nCoffey v. State Educational Finance Commission, 296 F. Supp. 1389\n(S.D. Miss. 1969) (three-judge court); Green v. Connally, 330 F. Supp.\nat 1173-74; Norwood v. Harrison, 382 F. Supp. 921, 924-26 (N.D. Miss.\n1974). These cases treated evidence of a school\xe2\x80\x99s formation or expan\xc2\xad\nsion at times reasonably proximate to public school desegregation litiga\xc2\xad\ntion as sufficient to create a \xe2\x80\x9cbadge of doubt.\xe2\x80\x9d The IRS could assert\nthis well-recognized and accepted inference in its present defense\nshould it choose to rely on that inference.16\nAnother aspect of the Tax Court defenses which arguably could be\nviewed as \xe2\x80\x9ccarrying out\xe2\x80\x9d the modified Green v. Miller injunction in\nviolation of \xc2\xa7616 would involve the IRS\xe2\x80\x99 resort to the \xe2\x80\x9cclear and\nconvincing\xe2\x80\x9d evidence standard that the modified Green decree imposes\non the schools in order to overcome a prima facie case of discrimina\xc2\xad\ntion. Of course, the IRS has no way of predicting exactly what burdens\nof proof the Tax Court might eventually place on the litigants.17 We\nare informed that a \xe2\x80\x9cclear and convincing\xe2\x80\x9d standard of proof is ex\xc2\xad\ntremely rare in Tax Court proceedings. Moreoever, as indicated above,\nthe district court in Green in no way displayed a purpose to prescribe\nthe rebuttal standard to be employed in the Tax Court.\n15 Rev. Proc. 75-50, Sec. 2.02 specifically requires that \'*[a] school must show affirmatively both\nthat it has adopted a racially nondiscriminatory policy as to students that is made known to the\ngeneral public and that since the adoption o f that policy it has operated in a bona fide m anner in\naccordance therew ith.\xe2\x80\x9d See also Green v. Connally, 330 F. Supp. 1150, 1179 (D.D.C. 1971) (three-judge\ncourt) (school must publicize policy in manner that is intended and reasonably effective to bring it to\nattention of students of minority groups).\nlBSee also Brumfield v Dodd, 425 F. Supp. 528, 531-32 (E.D. La. 1977) (adopting Norwood v.\nHarnson, 382 F. Supp. 921, 925 (N.D. Miss. 1974), standard that \xe2\x80\x9cthe critical time of a private school\'s\nformation or unusual enlargement must be a significant factor, though one not necessarily decisive, in\ndetermining w hether it is racially discriminatory\xe2\x80\x9d).\n11 See Prince Edward School Foundation v. C.I.R., supra at 110-11; Western Catholic Church v.\nCommissioner, 73 T.C. 196, 206 (1979); Hancock Academy o f Savannah, Inc. v. Commissioner, 69 T.C.\n488, 492 (1977) (burden of proof on petitioner; exact standard not addressed).\n\n451\n\n\x0cMore importantly, should the IRS, to sustain its case, desire to argue\nthat such a standard should control, it need not invoke the modified\nGreen injunction to support its position. Rather, it can point to the\nburdens of proof developed in Norwood v. Harrison, 382 F. Supp. at\n924-26, on remand from the Supreme Court, 413 U.S. 455, 471 (1973);\nan approach reaffirmed in Brumfield v. Dodd, 425 F. Supp. 528, 531-32\n(E.D. La. 1977).18 These cases predate August 22, 1978, and we do not\nread the Ashbrook amendment as intending to affect these decisions or\nto prohibit the IRS from arguing their relevance and applicability in the\nTax Court proceedings. Given these precedents and the lack of a firm\nposition by the IRS whether the Norwood inference should apply at all,\nwe see no conflict, at least in the immediate future, between the\nAshbrook amendment and the filing of an answer to the five petitions\nin the Tax Court or, generally, the defense of those actions.\nAt a more fundamental level, the IRS defense does not violate the\nbasic thrust of \xc2\xa7 616. Congress neither intended to change the law\nproscribing tax-exempt status for discriminatory schools nor desired to\nimpinge on the IRS\xe2\x80\x99 ability to withdraw the tax-exempt status of\nschools that do discriminate. Indeed, in reiterating his initial intention\nthis year, Congressman Ashbrook stated:\nI made it clear at the time that IRS should be able to\nproceed on the basis of the regulations they had in exist\xc2\xad\nence. If they know of discrimination, they can litigate,\nthey can withdraw the tax-exempt status, anything that\nthey could do prior to August 22, 1978, the time when\nthey endeavored to implement these Draconian regula\xc2\xad\ntions, could be implemented by IRS. In no way am I\ntrying to impinge on IRS\xe2\x80\x99s ability to withdraw the taxexempt status of any school which might violate the law.\n127 Cong. Rec. H5395-96 (daily ed. July 30, 1981).19 These proceedings\nwill give the court an opportunity to consider what rules should be\nused to determine nondiscrimination\xe2\x80\x94a result sought by Congressman\nAshbrook when he first introduced his amendment.20 Thus, the Tax\n18 Similarly, the court in United States v. State o f Mississippi, 499 F.2d 425, 434-35 & n.17 (5th Cir\n1974) (en banc) interpreted Norwood to require that the litmus test for receiving governmental support\nwas actual evidence of nondiscrimination, not a simple statement o f a nondiscriminatory policy.\nl9See also 127 Cong. Rec. H5398 (daily ed. July 30, 1981) (remarks o f Rep. Lott) ("If this\namendm ent passes, the IR S \'w ill still be free to investigate charges of racial discrimination. It will be\nfree to deny exemptions to any institution proven guilty o f racial discrimination through fair hearings.\nIn short, it will be free to enforce the regulations and court orders in effect in 1978.\xe2\x80\x9d)\n20T he governing statute, 26 U.S.C. \xc2\xa7 7428(c)(1), explicitly provides that any individual contributions\nup to $1,000 made to the school during the pendency of the proceedings are deductible, regardless of\nthe eventual outcom e o f the litigation. Congress fashioned the proceeding involved here in response to\nthe Supreme C ourt\'s suggestion that *\xe2\x80\x98[s]pecific treatment o f not-for-profit organizations to allow them\nto seek pre-enforcement review\xe2\x80\x9d might be a method for alleviating \xe2\x80\x9c [t]he degree of bureaucratic\ncontrol that, practically speaking, has been placed in the Service [and] . . . is susceptible of abuse,\nregardless of how conscientiously the Service may attempt to carry out its responsibilities.\xe2\x80\x9d Bob Jones\nUniversity v. Simon, 416 U.S. 725, 749-50 (1974). See H.R. Rep. No. 658, 94th Cong., 1st Sess. 282,\n283-84 (1975); S. Rep. No. 938, 94th Cong., 2d Sess. 585-87 (1976) (basis for enacting \xc2\xa7 1306(a), Tax\nReform A ct o f 1976, Pub. L. No. 94-455, 90 Stat. 1520).\n\n452\n\n\x0cCourt proceedings function to further, rather than to undermine, the\nspirit of the Ashbrook amendment. We therefore conclude that the IRS\ndefense in the Tax Court violates neither the letter nor the spirit of\n\xc2\xa7 616.\nWe are continuing our review of other issues raised in the Secretary\xe2\x80\x99s\nletter to the Attorney General, particularly the potential effect of the\nAshbrook amendment on the responsibility of the IRS to notify two\n\xe2\x80\x9cparagraph 1\xe2\x80\x9d schools 21 of their reporting obligations under the modi\xc2\xad\nfied Green injunction. We will remain in touch with your office and\nIRS attorneys in our efforts to resolve this matter.\nT heodore\n\nB. O l s o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n31 Paragraph 1 schools are schools which in the past have been determined in court or administra\xc2\xad\ntive proceedings to be racially discriminatory, or were established or expanded at or about the time\nthe districts in which they are located were undergoing desegregation and which cannot demonstrate\nthat they do not presently discriminate. See Green v. Miller, No. 69-1355, Order and Permanent\nInjunction (D.D.C. May 5, 1980) (clarified and amended, June 2, 1980). Even if the school establishes\nthat it observes a nondiscriminatory policy, the IRS is enjoined from continuing its tax-exempt status if\nthe school fails to supply certain information annually for a period of three years.\n\n453\n\n\x0c\x0c'


b'Waiver of Oath of Allegiance for Candidates for Naturalization\nT he required oath o f allegiance as a condition o f naturalization under section 337 o f the Im m igration\nand Nationality Act, 8 U.S.C. \xc2\xa7 1448(a), cannot be waived.\n\nFebruary 5, 1997\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nIm m ig r a t io n a n d N a t u r a l iz a t io n S e r v ic e\n\nThis letter responds to your request for the advice of this Office as to whether\nthe Immigration and Naturalization Service ( \xe2\x80\x9c INS\xe2\x80\x9d ) can waive the statutory\nrequirement that all applicants for naturalization take an oath of allegiance, found\nat section 337(a) of the Immigration and Nationality Act (\xe2\x80\x9c INA\xe2\x80\x9d ), 8 U.S.C.\n\xc2\xa7 1448(a) (1994). See Memorandum for Dawn Johnsen, Acting Assistant Attorney\nGeneral, Office of Legal Counsel, from David A. Martin, General Counsel,\nImmigration and Naturalization Service (Jan. 8, 1997) (\xe2\x80\x9c INS Memo\xe2\x80\x9d ). We gave\nyou our views on this question by telephone on January 31, 1997, and hereby\nmemorialize that advice.\nIt is our conclusion that the oath requirement of section 337 cannot be waived.\nSince the earliest days of our republic, Congress has exercised its power to \xe2\x80\x9c estab\xc2\xad\nlish an uniform Rule of Naturalization,\xe2\x80\x9d U.S. Const, art. I, \xc2\xa78, cl. 4, to require\nsome form of an oath of allegiance as a condition of naturalization. See Act of\nMarch 26, 1790, ch. 3, \xc2\xa7 1, 1 Stat. 103, 103 (requiring applicants for naturalization\nto take oath \xe2\x80\x9c to support the Constitution of the United States\xe2\x80\x9d ); see also Charles\nGordon, Stanley Mailman & Stephen Yale-Loehr, 7 Immigration Law and Proce\xc2\xad\ndure \xc2\xa796.05[1] (1996) (noting that \xe2\x80\x9c U.S. naturalization laws have always required\nan oath of allegiance as a prerequisite to naturalization\xe2\x80\x9d and chronicling statutory\nevolution of that oath). As \xe2\x80\x9c a promise of future conduct,\xe2\x80\x9d Knauer v. United\nStates, 328 U.S. 654, 671 (1946), the oath of allegiance has been, and remains,\nan \xe2\x80\x9c indispensable legal requirem ent ]\xe2\x80\x9d of naturalization. United States v. Tuteur,\n215 F.2d 415, 417 (7th Cir. 1954); see also United States v. Shapiro, 43 F. Supp.\n927, 929 (S.D. Cal. 1942) (\xe2\x80\x9c The alien makes a contract with the government\nof the United States. In return for the benefits and high privileges bestowed upon\nthe alien, he makes a solemn agreement expressed in the oath required of all\nwho become citizens.\xe2\x80\x9d ); cf. Luria v. United States, 231 U.S. 9, 22 (1913) ( \xe2\x80\x9c Citi\xc2\xad\nzenship is membership in a political society and implies a duty of allegiance on\nthe part of the member and a duty of protection on the part of the society. These\nare reciprocal obligations, one being a compensation for the other.\xe2\x80\x9d ).\nThe current version of the oath of allegiance contains five elements: (1) support\nthe Constitution; (2) renounce all allegiance to any foreign state or sovereign;\n(3) support and defend the Constitution and laws of the United States against\nall enemies; (4) bear \xe2\x80\x9c true faith and allegiance\xe2\x80\x9d to the same; and (5) bear arms,\n41\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nperform noncombatant service, or perform work of national importance on behalf\nof the United States. 8 U.S.C. \xc2\xa7 1448(a). In order to attain U.S. citizenship, an\napplicant must satisfy each of these elements, for the INA demands strict compli\xc2\xad\nance with its statutory conditions.1 See 8 U.S.C. \xc2\xa7 1421(d) (1994) ( \xe2\x80\x9c A person\nmay only be naturalized as a citizen of the United States in the manner and under\nthe conditions prescribed in this subchapter and not otherwise.") (emphasis\nadded); cf. INS v. Pangilinan, 486 U.S. 875, 884 (1988) (courts\xe2\x80\x99 role in naturaliza\xc2\xad\ntion process requires \xe2\x80\x9c strict compliance with the terms of [the] authorizing\nstatute\xe2\x80\x9d ). Moreover, courts have long recognized that naturalization is a privilege,\nnot a right, to be granted only in accordance with the precise conditions estab\xc2\xad\nlished by Congress. See Rogers v. Bellei, 401 U.S. 815, 830 (1971) ( \xe2\x80\x9c \xe2\x80\x98No alien\nhas the slightest right to naturalization unless all statutory requirements are com\xc2\xad\nplied with.\xe2\x80\x99 \xe2\x80\x9d ) (quoting United States v. Ginsberg, 243 U.S. 472, 475 (1917)).\nYour memorandum raises the possibility that Congress might have intended to\nwaive the oath of allegiance requirement when, in 1994, it amended section 312(b)\nof the INA to permit waiver of the English language and civics requirements for\nnaturalization applicants who are \xe2\x80\x9c unable because of physical or developmental\ndisability or mental impairment to comply therewith.\xe2\x80\x9d 8 U.S.C. \xc2\xa7 1423(b)(1)\n(1994). According to this argument, by waiving the English language and civics\nrequirements for disabled applicants who would otherwise be denied naturaliza\xc2\xad\ntion, Congress must also have intended to waive the oath of allegiance for those\ndisabled applicants who could not satisfy that requirement.\nWe agree with the conclusion reached in your memorandum that this argument\nis unpersuasive. INS Memo at 3. To begin with, as you have also noted, not\nall disabled applicants who would benefit from a waiver of the English language\nand civics requirements would also need a waiver of the oath requirement in order\nto become U.S. citizens. The fact that Congress chose to waive one statutory\nrequirement for a certain subset o f naturalization applicants in no way compels\nthe conclusion that Congress thereby implicitly intended to waive another statutory\nrequirement for a larger subset of applicants. On the contrary, both the language\nand legislative history of section 312(b) indicate that Congress intended only to\nwaive the English language and civics requirements. See 8 U.S.C. \xc2\xa7 1423(b)(1)\n(waiver applies only to \xc2\xa7 1423(a), language and civics requirements); 140 Cong.\nRec. 29,220 (1994) (Rep. Mineta\xe2\x80\x99s statement that individuals obtaining waiver\nunder section 312(b)(2) would benefit immigrants \xe2\x80\x9c who are eager to declare their\nloyalty to this, their adopted country, by taking the oath of citizenship\xe2\x80\x9d ).\nIndeed, it can be argued that Congress\xe2\x80\x99s failure to provide an explicit waiver\nof the oath requirement supports the view that Congress considered the oath of\nallegiance a critical, indispensable element of the naturalization process. To be\n\xe2\x96\xa0The only category o f naturalization applicants that Congress exempted from the oath requirement are children\nwho are applying for derivative citizenship pursuant to 8 U .S C \xc2\xa71433 (1994) and who, m the opinion of the\nAttorney G eneral, are \xe2\x80\x9c unable to understand [the o a th \xe2\x80\x99s] meaning \xe2\x80\x9d 8 U.S C. \xc2\xa7 1448(a).\n\n42\n\n\x0cWaiver o f Oath o f Allegiance fo r Candidates fo r Naturalization\n\nsure, Congress recognized that there might be naturalization applicants who,\nbecause of serious illness, permanent or developmental disability, advanced age,\nor other exigent circumstances, would be unable to take the oath of allegiance\nin a public ceremony as required by section 337(a). In 1990, Congress accommo\xc2\xad\ndated the needs of such applicants through the establishment of an alternative,\nexpedited procedure for administration of the oath. See 8 U.S.C. \xc2\xa7 1448(c).\nNotably, however, Congress chose not to excuse them from the oath requirement\naltogether, thereby reaffirming the centrality of the oath to the naturalization\nprocess.\nIn concluding that the oath requirement of section 337 cannot be waived, we\ndo not disagree with the proposition advanced in your memorandum that section\n504 of the Rehabilitation Act, 29 U.S.C. \xc2\xa7794 (1994), might require some sort\no f accommodation for persons who, because of their disabilities, cannot take the\noath of allegiance. Whether there exists any accommodation to the oath require\xc2\xad\nment that would not result in a \xe2\x80\x9c fundamental alteration\xe2\x80\x9d of the naturalization\nprogram, see Southeastern Community College v. Davis, 442 U.S. 397, 410 (1979),\nand what the parameters of such an accommodation might be, are difficult and\ncomplex questions. Should you determine that you would like us to address these\nquestions, we will solicit the views of the Civil Rights Division and the State\nDepartment.\nDAWN E. JOHNSEN\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n43\n\n\x0c'


b'Prosecutorial Discretion Regarding\nCitations for Contempt of Congress\nA United States Attorney to whom a contempt of Congress citation is referred retains\ntraditional prosecutorial discretion regardless of whether the contempt citation is\nrelated to an assertion of executive privilege.\nJune 16, 2014\n\nLETTER OPINION FOR THE UNITED STATES ATTORNEY\nFOR THE DISTRICT OF COLUMBIA\nThis letter responds to an inquiry sent to our Office on your behalf on\nMay 22, 2014. See E-mail for Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Matthew Jones,\nCounsel to the United States Attorney, Office of the U.S. Attorney for the\nDistrict of Columbia (May 22, 2014) (\xe2\x80\x9cJones E-mail\xe2\x80\x9d). The inquiry indicates that you have reviewed a 1984 OLC opinion entitled Prosecution for\nContempt of Congress of an Executive Branch Official Who Has Asserted\na Claim of Executive Privilege, 8 Op. O.L.C. 101 (1984) (\xe2\x80\x9c1984 Opinion\xe2\x80\x9d). That opinion concluded (among other things) that a United States\nAttorney is not required by \xe2\x80\x9cthe criminal contempt of Congress statute,\n2 U.S.C. \xc2\xa7\xc2\xa7 192, 194, . . . [to] prosecute or refer to a grand jury a citation\nfor contempt of Congress issued with respect to an Executive Branch\nofficial who has asserted a claim of executive privilege in response to\nwritten instructions from the President of the United States.\xe2\x80\x9d Id.; see also\nid. at 102, 128. Having reviewed that opinion, you have asked whether\nthis prosecutorial discretion is limited to circumstances in which the\nconduct cited for contempt is based on a claim of executive privilege, or\nwhether it is also available when a United States Attorney concludes,\nfollowing a review of the factual and legal sufficiency of the contempt\ncitation, that no violation of the law has occurred for reasons other than an\nassertion of executive privilege.\nIn our view, the 1984 Opinion resolves your question, and concludes\nthat a United States Attorney to whom a contempt of Congress citation is\nreferred retains traditional prosecutorial discretion regardless of whether\nthe contempt citation is related to an assertion of executive privilege. The\n1984 Opinion considered two distinct questions. \xe2\x80\x9cThe first specific question [was] whether the United States Attorney is required to refer every\n1\n\n\x0c38 Op. O.L.C. 1 (2014)\n\ncontempt of Congress citation to a grand jury.\xe2\x80\x9d Id. at 118. The second\nquestion was, \xe2\x80\x9caside from the issue of prosecutorial discretion, whether\nthe criminal contempt of Congress statute is intended to apply, or constitutionally could be applied, to Presidential claims of executive privilege.\xe2\x80\x9d\nId. at 129. In our view, your question is resolved by the 1984 Opinion\xe2\x80\x99s\nanalysis of the first question. The opinion concludes that, \xe2\x80\x9cas a matter of\nstatutory construction strongly reinforced by constitutional separation of\npowers principles, we believe that the United States Attorney and the\nAttorney General, to whom the United States Attorney is responsible,\nretain their discretion not to refer a contempt of Congress citation to a\ngrand jury.\xe2\x80\x9d Id. at 128.\nIn reaching this conclusion, the 1984 Opinion first clarified that, \xe2\x80\x9cas a\nmatter of statutory interpretation, there is no doubt that the contempt of\nCongress statute does not require a prosecution\xe2\x80\x9d because it\ndoes not on its face actually purport to require the United States Attorney to proceed with the prosecution of a person cited by a house\nof Congress for contempt; by its express terms the statute discusses\nonly referral to a grand jury. Even if a grand jury were to return a\ntrue bill, the United States Attorney could refuse to sign the indictment and thereby prevent the case from going forward.\nId. at 118. Thus, \xe2\x80\x9cthe only question is whether [the contempt provision]\nrequires referral to the grand jury.\xe2\x80\x9d Id.\nTurning to this question, the 1984 Opinion concluded that the statute\ndoes not require United States Attorneys to refer contempt of Congress\ncitations to a grand jury, for four main reasons. First, the Justice Department had previously taken the position that the contempt provision did not\nrequire referral to a grand jury, including in connection with contempt\ncitations of officials of the Port of New York Authority. Id. at 119\xe2\x80\x9320.\n(Notably, there had been no assertion of the President\xe2\x80\x99s executive privilege in that matter. See United States v. Tobin, 195 F. Supp. 588, 596\xe2\x80\x9397,\n608\xe2\x80\x9309 (D.D.C. 1961), rev\xe2\x80\x99d, 306 F.2d 270, 271\xe2\x80\x9372 (D.C. Cir. 1962).)\nSecond, judicial opinions interpreting the language of section 194 in\nother contexts reflected an understanding that the United States Attorney\nretains discretion not to make a referral to the grand jury, despite the\napparently mandatory language of the statute. 1984 Opinion, 8 Op. O.L.C.\nat 120\xe2\x80\x9322. These contexts included consideration of whether the Speaker\n2\n\n\x0cProsecutorial Discretion Regarding Citations for Contempt of Congress\n\nof the House\xe2\x80\x99s duty to refer contempt citations to United States Attorneys\nunder section 194 is mandatory, see id. at 120\xe2\x80\x9321 (discussing Wilson v.\nUnited States, 369 F.2d 198 (D.C. Cir. 1966)), and rejection of private\nparties\xe2\x80\x99 motions to quash congressional subpoenas on the grounds that\nthose parties would have adequate opportunities to challenge any contempt finding by, inter alia, persuading the U.S. Attorney not to refer the\ncitation to a grand jury, see id. at 121\xe2\x80\x9322 (discussing Ansara v. Eastland,\n442 F.2d 751 (D.C. Cir. 1971), Sanders v. McClellan, 463 F.2d 894 (D.C.\nCir. 1972), and U.S. Servicemen\xe2\x80\x99s Fund v. Eastland, 488 F.2d 1252 (D.C.\nCir. 1973), rev\xe2\x80\x99d on other grounds, 421 U.S. 491 (1975)).\nThird, \xe2\x80\x9cthe common-law doctrine of prosecutorial discretion,\xe2\x80\x9d which\nembodies a \xe2\x80\x9cwide scope of . . . discretion in determining which cases to\nbring,\xe2\x80\x9d precluded interpreting the statute to \xe2\x80\x9crequire[] automatic referral\xe2\x80\x9d\nto the grand jury, at least in the absence of a \xe2\x80\x9cclearly and unequivocally\nstated\xe2\x80\x9d congressional intent to displace the traditional prosecutorial discretion. Id. at 122\xe2\x80\x9324.\nFinally, construing section 194 to permit the exercise of prosecutorial\ndiscretion was \xe2\x80\x9creinforced by the need to avoid the constitutional problems that would result if section 194 were read to require referral to a\ngrand jury.\xe2\x80\x9d Id. at 124\xe2\x80\x9325. A contrary construction, the opinion explained, would \xe2\x80\x9ccreate two distinct problems with respect to the [constitutional] separation of powers\xe2\x80\x9d: it would both \xe2\x80\x9cstrip[] the Executive of its\nproper constitutional authority\xe2\x80\x9d and \xe2\x80\x9cvest[] improper power in Congress,\xe2\x80\x9d in contravention of the principle that, as \xe2\x80\x9c[t]he courts have declared,\xe2\x80\x9d \xe2\x80\x9cthe ultimate decision with respect to prosecution of individuals\nmust remain an executive function under the Constitution.\xe2\x80\x9d Id. at 127;\nsee also, e.g., id. at 114\xe2\x80\x9315 (citing Buckley v. Valeo, 424 U.S. 1, 138\n(1976) (per curiam) (\xe2\x80\x9cA lawsuit is the ultimate remedy for a breach of\nthe law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to \xe2\x80\x98take care that the laws be faithfully executed.\xe2\x80\x99\xe2\x80\x9d), and Smith v. United States, 375 F.2d 243, 246\xe2\x80\x9347 (5th\nCir. 1967) (recognizing that the Executive\xe2\x80\x99s prosecutorial discretion not\nto arrest or prosecute is rooted in the constitutional separation of powers)); id. at 126 (citing United States v. Nixon, 418 U.S. 683, 693 (1974)\n(\xe2\x80\x9cthe Executive Branch has exclusive authority and absolute discretion to\ndecide whether to prosecute a case\xe2\x80\x9d)).\n\n3\n\n\x0c38 Op. O.L.C. 1 (2014)\n\nWe recognize that there are general caveats in the 1984 Opinion stating\nthat its conclusions are \xe2\x80\x9climited to the unique circumstances\xe2\x80\x9d that\nprompted it. Id. at 102; see also id. at 103, 142. We agree that the 1984\nOpinion\xe2\x80\x99s \xe2\x80\x9cgeneral statements of legal principles should be applied in\nother contexts only after careful analysis.\xe2\x80\x9d Id. at 103. But it is a key\ncharacteristic of \xe2\x80\x9clegal principles\xe2\x80\x9d that they can apply in cases other than\nthe specific ones in which they are stated as grounds for decision. And we\ndo not read the analysis supporting the 1984 Opinion\xe2\x80\x99s conclusion regarding prosecutorial discretion as turning on whether the conduct underlying\na contempt citation is based on an assertion of executive privilege. The\nopinion does not state or suggest that the underlying basis for a contempt\ncitation must be analyzed in determining whether a prosecutor retains the\ndiscretion not to refer a contempt citation to a grand jury. Nor does the\nopinion state or suggest that the United States Attorney to whom a citation is referred would lack traditional prosecutorial discretion if the citation were not related to an assertion of executive privilege. As noted\nabove, the opinion describes and relies in part on a specific prior instance\nin which the Justice Department declined to refer contempt citations to a\ngrand jury, in a case that did not involve a presidential assertion of executive privilege. See id. at 119\xe2\x80\x9320 (discussing contempt citations of Port of\nNew York Authority officials). And the cases the opinion cites in which\ncourts treated section 194 as if it did not make grand jury referrals mandatory involved situations in which the underlying contempt citations did\nnot concern executive privilege. See id. at 121\xe2\x80\x9322 (discussing Ansara,\n442 F.2d 751, Sanders, 463 F.2d 894, and U.S. Servicemen\xe2\x80\x99s Fund, 488\nF.2d 1252). We therefore believe that the 1984 Opinion\xe2\x80\x99s conclusion\nregarding prosecutorial discretion\xe2\x80\x94that U.S. Attorneys to whom contempt of Congress citations are referred retain the traditional prosecutorial\ndiscretion not to prosecute or refer those citations to a grand jury\xe2\x80\x94applies\nregardless of whether the contempt citations are related to an assertion of\nexecutive privilege.\nKARL R. THOMPSON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n4\n\n\x0c'


b"May 21, 1979\n\n79-32\n\nMEMORANDUM OPINION FOR THE SENIOR\nASSOCIATE COUNSEL TO THE PRESIDENT\nThree Mile Island Commission\xe2\x80\x94Closed Meetings\xe2\x80\x94\nFederal Advisory Committee Act (5 U.S.C.\nApp.)\xe2\x80\x94Government in the Sunshine Act (5 U.S.C.\n\xc2\xa7 552b)\n\nThis m em orandum is to confirm our advice that legislation that would\ngrant the President\xe2\x80\x99s Commission on the Accident at Three Mile Island the\npower to issue subpoenas is sufficient also to allow the closing o f its\nmeetings under certain circumstances. We have reviewed the statement by\nSenator Kennedy made on the Senate floor last week and, assuming that\nno contrary indications arise when the House considers the Three Mile\nIsland subpoena legislation, we conclude that it is sufficient to make\nreasonably clear that exemption (10) o f the Government in the Sunshine\nA ct\xe2\x80\x99s exemptions, 5 U .S.C . \xc2\xa7 552b(c)(10), will be available when this\nCommission is to discuss its issuance o f subpoenas.* O ur reasons for so\nconcluding are as follows.\nI. Applicability o f the Sunshine Act Exemptions in General\nThe Commission is an advisory committee subject to the provisions of\nthe Federal Advisory Committee Act (FACA), 5 U .S.C . App. I (1979\nSupp.), P ub. L. N o. 92-463. The principal purpose of that Act is to pro\xc2\xad\nvide a unified set o f procedures for advisory committees to agencies\n\n. *Editor\xe2\x80\x99s Note: This m em orandum was written before the House o f Representatives con\xc2\xad\nsidered the resolution that ultimately became the Three Mile Island Commission subpoena\nlegislation, P u b . L. N o. 96-12, 96th C ong., 1st sess. (1979). T he House debate, which oc\xc2\xad\ncurred on the date this m em orandum was transm itted (May 21, 1979), did not indicate a con\xc2\xad\ngressional intent contrary to that indicated by Senator Kennedy\xe2\x80\x99s remarks during the Senate\ndebate. See 125 C o n g re s s io n a l R e c o rd H . 3480-81 (daily ed., May 21, 1979). The resolu\xc2\xad\ntion became law on May 23, 1979.\n\n208\n\n\x0cand to the President. As the A ct\xe2\x80\x99s legislative history makes clear, the open\xc2\xad\nness provisions o f the FACA are to be liberally construed. See 5 U .S.C .\nApp. I \xc2\xa7 10(a)(1).' However, in the event that the President or his\ndesignee,2 or the head o f the agency to which an advisory committee\nreports, determines that one o f the Sunshine Act exemptions applies, then\nthe portion o f a meeting to which it pertains may be closed so long as the\nrequired procedures are followed. See \xc2\xa7 10(d) o f the FACA; see also O f\xc2\xad\nfice o f Management and Budget Circular No. A-63.\nII. The Difficulty with Utilizing Exemption (10)\nThe problem with utilizing exemption (10) o f the Sunshine Act is that it\nrefers to \xe2\x80\x9c the agency\xe2\x80\x99s\xe2\x80\x9d issuance o f a subpoena as the predicate for its\nuse. This suggests the following difficulty: for exemption (10) to be em\xc2\xad\nployed, it would have to be determined that \xe2\x80\x9c the agency\xe2\x80\x99s\xe2\x80\x9d action is to be\ndiscussed at a committee meeting. As a rule, an advisory committee is not\nitself an \xe2\x80\x9c agency.\xe2\x80\x9d 3 Therefore, in the normal situation an advisory com \xc2\xad\nmittee would have to show that some other entity, denom inated an \xe2\x80\x9c agen\xc2\xad\ncy\xe2\x80\x9d for purposes o f the exemption, is to issue a subpoena before exemp\xc2\xad\ntion (10) may be applicable. In the present case, that reasoning would\nmean that the commission\xe2\x80\x99s own issuance o f a subpoena, all other things\nbeing equal, would not suffice as the basis for closing a meeting o f the\nCommission.\nIt might be said that the purpose o f Congress in providing an exemption\nfor the closing o f a meeting to discuss the issuance o f a subpoena would be\nundermined by concluding that, when the subpoena is not issued by an en\xc2\xad\ntity which is clearly an \xe2\x80\x9c agency\xe2\x80\x9d in law, such entity cannot seek to rely on\nexemption (10). We recommended the inclusion o f a specific provision in\nthe subpoena legislation to clarify that ambiguity.\n\ni\n\n1 See S. Rept. 92-1098, 92d C ong., 2d sess. at 14: \xe2\x80\x9c * * * the intention o f this legislation\n[the FACA] is that the standard o f openness and public inspection o f advisory com m ittee\nrecords is to be liberally construed.\xe2\x80\x9d\n1 Section 10(d) o f the FACA provides that \xe2\x80\x9c the President, or the head o f the agency to\nwhich the advisory comm ittee reports,\xe2\x80\x9d is to determine that a portion o f a meeting may be\nclosed in accordance with one o f the Sunshine Act exemptions. In view o f norm al subdelega\xc2\xad\ntion doctrine, the President may delegate his express authority pursuant to the FA CA to \xe2\x80\x9c the\nhead o f any departm ent or agency in the executive branch, or any official thereof who is re\xc2\xad\nquired to be appointed by and with the advice and consent o f the Senate * *\n3 U .S.C .\n\xc2\xa7 301. In \xc2\xa7 1-306 o f Exec. O rder No. 12130, the President delegated his functions under the\nFACA, except that o f reporting annually to Congress and to the A dm inistrator o f General\nServices.\n1 The FACA provides that \xe2\x80\x9c agency\xe2\x80\x9d has the same meaning as it does in the Adm inistrative\nProcedure Act. Section 551(1) o f Title 5, United States Code, defines an \xe2\x80\x9c agency\xe2\x80\x9d as \xe2\x80\x9c each\nauthority o f the government o f the United States whether or not it is within or subject to\nreview by another agency.\xe2\x80\x9d This definition has been judicially construed to require that an\nexecutive branch entity, to be deemed an \xe2\x80\x9c agency,\xe2\x80\x9d have \xe2\x80\x9c substantial independent authority\nin the exercise o f specific functions,\xe2\x80\x9d Soucie v. David, 448 F. (2d) 1067, 1073 (D .C . Cir.\n1971), or the \xe2\x80\x9c authority in law to make decisions,\xe2\x80\x9d Washington Research Project, Inc. v.\nHEW , 504 F. (2d) 238, 248 (D .C . Cir. 1974). Such tests cannot normally be met by advisory\ncommittees, whose chief function is to make recom m endations and not to exercise independ\xc2\xad\nent authority. See, Wolfe v. Weinberger, 403 F. Supp. 238, 241 (D .D .C . 1975); Gates v.\nSchlesinger, 366 F. Supp. 797, 799 (D .D .C . 1973).\n\n209\n\n\x0cIII. Clarification o f the Commission\xe2\x80\x99s Status\nThe following was stated on the floor o f the Senate by Senator Ken\xc2\xad\nnedy, the sponsor o f the subpoena legislation.\nMr. President, originally, the resolution [calling for subpoena\npower for the Commission] proposed by the administration con\xc2\xad\ntained a provision specifying that the commission could close its\nmeetings under certain circumstances. We have deleted that pro\xc2\xad\nvision because we believe that the Commission already has the\npower to close its meetings under those circumstances pursuant\nto the Federal Advisory Committee Act if the President or\nagency head approves. We believe that if meetings are to be\nclosed in connection with this vital m atter o f public concern it\nshould only be done with the approval o f the President or rele\xc2\xad\nvant agency head\xe2\x80\x94and that the Commission should not have the\npower to close its meetings on its own. [125 C o n g r e s s i o n a l\nR e c o r d \xc2\xa7 6185 (daily ed., May 17, 1979.)]\nThe reference to the legislation proposed by the Administration makes plain\nthat the exemption which the Adm inistration sought to make applicable to\nthe commission\xe2\x80\x94in particular, exemption (10)\xe2\x80\x94should be considered\nalready available. Specifically, the Adm inistration\xe2\x80\x99s proposal provided that\nthe term \xe2\x80\x9c agency\xe2\x80\x9d for purposes o f the Sunshine Act exemptions \xe2\x80\x9c shall be\nconstrued to apply to this Commission.\xe2\x80\x9d Accordingly, the evident meaning\no f Senator Kennedy\xe2\x80\x99s comment is that what the Administration had sought\nto make clear already exists with respect to the Commission\xe2\x80\x94that is,\nthat this Commission can in appropriate circumstances be considered an\n\xe2\x80\x9c agency\xe2\x80\x9d for the purpose o f exemption (10).4\nAn argument that Senator Kennedy\xe2\x80\x99s statement is not sufficient to\nestablish that the Commission may utilize exemption (10) in particular\xe2\x80\x94\nassuming no contrary indication by the House when it considers the legis\xc2\xad\nlation\xe2\x80\x94would appear specious. It would be inappropriate to rely on the\ngeneral proposition that, normally, advisory committees are not \xe2\x80\x9c agen\xc2\xad\ncies,\xe2\x80\x9d because this Commission is in a special situation, given the legisla\xc2\xad\ntive history discussed above. Also, in light o f that clarification, to accept\nthe contention that the Commission\xe2\x80\x99s meetings cannot be closed on the\nbasis o f exemption (10) is to frustrate the apparent aim o f Congress in\ngranting the commission subpoena power: namely, to make certain that\nthe commission can conduct a thorough investigation, which at times may\nrequire closure o f certain portions o f meetings to consider the use o f sub\xc2\xad\npoena power.\nThe legislative history o f the Sunshine Act is not to the contrary. The\nprovision making Sunshine Act exemptions applicable to advisory\n\n4 We should add that Senator Kennedy\xe2\x80\x99s reference to the determ ination by the President,\nor agency head, o f the grounds for closing a Commission meeting simply restates the pro\xc2\xad\nvision o f \xc2\xa7 10(d) o f the FACA.\n\n210\n\n\x0ccommittees, which arose in a floor amendm ent, is based on the premise\nthat the FACA, which deals with meetings, should have a set o f exemp\xc2\xad\ntions that also refer to meetings, instead o f ones that refer to docum ents.\nSee 122 C o n g r e s s io n a l R e c o r d H. 24208-09, 94th Cong., 2d sess.\n(1976). Also, as the House conference report makes plain, that provision\nwas intended to disapprove the use o f exemption (5) o f the Freedom o f In\xc2\xad\nformation Act, 5 U.S.C. \xc2\xa7 552(b)(5), which deals with internal deliberative\nmemoranda. As was said, \xe2\x80\x9c [t]he chief concern in this regard has been ap\xc2\xad\nplication o f exemption (5) a provision intended to protect the confiden\xc2\xad\ntiality o f purely internal governmental deliberations, as a basis for closing\ndiscussions with and among outside advisers.\xe2\x80\x9d H. Conf. Rept. 1441, 94th\nCong., 2d sess. 26 (1976). [Emphasis, in original.] But the desire to end\nreliance on such a relatively broad exemption designed to protect \xe2\x80\x9c full and\nfrank\xe2\x80\x9d discussions in general does not militate against the use, in present\ncircumstances, o f a much more precise exemption designed to protect\nfrankness in the deliberations o f an entity with subpoena power\xe2\x80\x94particu\xc2\xad\nlarly when the Congress has indicated explicitly that that entity has the\npower to use such an exemption.\nIV. Conclusion\nWe conclude that the Commission\xe2\x80\x99s meetings dealing with its issuance\nof subpoenas may be closed on the basis o f exemption (10), assuming that\nthere is determined to be a need for so closing such meetings. O ur conclu\xc2\xad\nsion is confined to the availability o f exemption (10). In the context of\nother exemptions using the word \xe2\x80\x9c agency,\xe2\x80\x9d such as exemption (2) (\xe2\x80\x9c inter\xc2\xad\nnal personnel rules and practices o f an agency\xe2\x80\x9d ) and exemption (9)(B)\n(\xe2\x80\x9c frustrate implementation o f a proposed agency action\xe2\x80\x9d ), we consider\nthat the term \xe2\x80\x9c agency\xe2\x80\x9d should be interpreted to mean \xe2\x80\x9c President or\nagency.\xe2\x80\x9d That is, to make the Sunshine Act exemptions consistent with\nthe scheme o f the FACA, it is necessary to read \xe2\x80\x9c agency\xe2\x80\x9d as including the\nPresident. But if, for example, a proposed Presidential or agency action is\nnot likely to be frustrated within the meaning o f exemption (9)(B) by an\nopen meeting, exemption (9)(B) would not in our view apply. For although\nSenator Kennedy\xe2\x80\x99s language refers generally to \xe2\x80\x9c certain circumstances\xe2\x80\x9d in\nwhich closure o f commission meetings would be justified, it seems most\nreasonable to limit those circumstances, insofar as they are arguably rele\xc2\xad\nvant to the subpoena context.\nL arry A . H am m ond\n\nDeputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n211\n\n\x0c"


b'January 27, 1977\n\n77-2\n\nMEMORANDUM OPINION FOR THE\nSECRETARY OF LABOR\nLegality of a Certain Proposed Composition of a\nMultiemployer Pension Fund Board of Trustees\n\nThis Office has been asked to respond to your predecessor\xe2\x80\x99s request\nfor an opinion as to the legality of a certain proposed composition of a\nmultiemployer pension fund board of trustees. Specifically, the question\nis w hether a board composed of an equal number of labor and manage\xc2\xad\nment trustees, but with a majority of neutral trustees chosen jointly by\nthe union and employer representatives, would comport with Section\n302(c)(5) o f the Labor Management Relations Act (LMRA), 29 U.S.C.\n\xc2\xa7 186(c)(5) (Supp. V). For the reasons that follow, we conclude that it\nwould.\nIn broad outline, Section 302(a) of the LM RA prohibits payments or\nloans by an employer to any representative of any of his employees. It\nmay be that, under the reasoning set forth in Independent Association o f\nM utuel Employees v. New York Racing Association, 398 F. 2d 587 (2d\nCir. 1968), Section 302 would not even be applicable to the contemplat\xc2\xad\ned l^oard. However, we proceed on the basis that Section 302 does\napply here, and our opinion rests on the ground that the proposal falls\nwithin the exception provided in Section 302(c)(5). That provision\nexempts from Section 302(a)\xe2\x80\x99s broad prohibition certain trust funds\ncomplying with specified requirements; the requirements relevant in\nthis situation are set out in Section 302(c)(5)(B), reading as follows:\nProvided That . . . (B) the detailed basis on which such [trust\nfund] payments are to be made is specified in a written agreement\nwith the employer, and employees and employers are equally rep\xc2\xad\nresented in the administration o f such fund, together with such\nneutral persons as the representatives of the employers and the\nrepresentatives of employees may agree upon and in the event the\nemployer and employee group deadlock on the administration of\nsuch fund and there are no neutral persons empowered to break\nsuch deadlock, such agreement provides that the two groups shall\nagree on an impartial umpire to decide such dispute, or in event of\n4\n\n\x0ctheir failure to agree within a reasonable length of time, an impar\xc2\xad\ntial umpire to decide such dispute shall, on petition of either group,\nbe appointed by the district court of the United States for the\ndistrict where the trust fund has its principal office, and shall also\ncontain provisions for an annual audit of the trust fund, a statement\nof the results of which shall be available for inspection by interest\xc2\xad\ned persons at the principal office of the trust fund and at such\nother places as may be designated in such written agreement.\nIn our opinion the proposed board of trustees would not contravene\nany of the above specified requirements. The provision sets forth no\nrequirement that the employee and employer representatives must to\xc2\xad\ngether remain in control of the board, or that the neutral trustees\ncannot constitute a majority. Instead, the statute itself, in its language\nreferring to \xe2\x80\x9cneutral persons,\xe2\x80\x9d explicitly allows for more than one\nneutral person on the board; it also explicitly contemplates that the\nneutral parties may often control the course the board takes, as may be\nthe case under the Labor Department\xe2\x80\x99s proposal.\nThe core of the problem here is whether the statute allows neutral\nparties to be in control of the fund at all times (presuming they agree)\nor only in instances where the employers and employees deadlock. The\nstatute, in its reference to the language \xe2\x80\x9cin the event that employer and\nemployee group deadlock on the administration of such fund and there\nare no neutral persons empowered to break such deadlock,\xe2\x80\x9d might be\ntaken to suggest that the role of neutral parties is to break deadlock.\nWe think, however, that this interpretation would elevate the quoted\nlanguage from what it is\xe2\x80\x94i.e., a specification o f a contingency\xe2\x80\x94into a\nrequirement that is simply not within the statute. The statute, for\npresent purposes, requires only two things: (1) a written agreement\nspecifying the basis on which payments are to be make; and (2) employ\xc2\xad\nees and employers must be equally represented in the administration of\nthe fund. The requirement that the parties must agree as to the detailed\nbasis on which payments are to be made, while directed at mandating a\nspecification of the terms of employee benefits, See 92 Cong. Rec.\n5345-46 (1946) (remarks of Senator Ball), nonetheless seems broad\nenough to sanction an agreement on the composition of the board that\nis to be in overall administration of the trust. The provision allowing\nthe employee and employer representatives to \xe2\x80\x9cagree upon\xe2\x80\x9d neutral\ntrustees more directly addresses this issue; it appears sufficiently openended to support any agreement as to the specification of \xe2\x80\x9cneutral\npersons\xe2\x80\x9d even to the extent of allowing them to come into control of\nthe fund.\nNor do we find that the legislative history of the provision under\xc2\xad\nmines this conclusion. To be sure, there are references in the debates to\nthe fact that the funds under the new law would be under the \xe2\x80\x9cjoint\nadministration\xe2\x80\x9d of employers and employees. See, e.g., 93 Cong. Rec.\n4747 (1947) (remarks of Senators Revercomb and Taft), 93 Cong. Rec.\n5\n\n\x0c4749 (1947) (remarks of Senator Murray). While these statements could\nsuggest that Congress contemplated that the employers and employees\ntogether would control the operation of the trust, we do not believe\nsuch to be necessarily the case. In our view, it is also reasonable to\nsuppose that the statements were made with reference to what Con\xc2\xad\ngress assumed would be the normal, but not mandatory, situation; the\nfact that there is no reference in the statute to joint control supports this\nview. In addition, references in other parts of the debates indicate that\nthe legislation was designed to secure employer \xe2\x80\x9cparticipation,\xe2\x80\x9d See 93\nCong. Rec. 4748, 4751-52 (1947) (remarks of Senators Taft and Morse)\nor \xe2\x80\x9cvoice,\xe2\x80\x9d 92 Cong. Rec. 4892, 5180-81 (1946) (remarks of Senators\nByrd and Overton) in the administration o f the funds. These remarks\nsuggest that the employer (and the employees, by virtue of the equal\nrepresentation requirement) need not necessarily be one of the fund\xe2\x80\x99s\ncontrolling forces, but might take a lesser part in the administration of\nthe fund.\nM ore importantly, the \xe2\x80\x9cjo int administration\xe2\x80\x9d o f the fund was by no\nmeans an underlying purpose of the legislation; rather, it was a means\nto secure Congress\xe2\x80\x99 ultimate goal. 93 Cong. Rec. 4747 (1947) (remarks\nof Senator Taft), 92 Cong. Rec. 5337 (1946) (remarks of Senator Tydings). This goal was to ensure that the trust funds would be used for\nthe purposes for which they were established, 93 Cong. Rec. 4678\n(1947) (remarks o f Senator Ball), 92 Cong. Rec. 5336, 5346 (1946)\n(remarks of Senators Knowland and Ball); we are informed that the\nD epartm ent\xe2\x80\x99s proposal is designed to accomplish this same result. As\nsuch, we do not believe that the proposal here should be barred by\nvague references in the legislative history to methods that Congress did\nnot see fit to include within the statutory language.\nF o r the foregoing reasons, we conclude that the proposed board of\ntrustees wpuld comply with the requirements set forth in Section\n302(c)(5).\nL\n\neon\n\nU\n\nlm a n\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n6\n\n\x0c'