b'Providing Government Films to the Democratic\nNational Committee or Congressmen\nGovernment motion picture films may be made available to the Democratic National Committee or\ncongressmen when public release is authorized by statute.\nIn the absence of statutory authority, government films may be made available to the Committee or\ncongressmen on a revocable loan basis if a public interest can be shown to justify such loan and if\nthe films are available equally to other private organizations.\nIt would be improper for any government agency to produce a film for the specific purpose of making\nit available to the Democratic National Committee or to congressmen.\n\nDecember 26, 1963\n\nMEMORANDUM OPINION FOR THE ASSISTANT SPECIAL COUNSEL\nTO THE PRESIDENT\nThis is in response to your memorandum of June 15, 1963, requesting my\nviews upon the use for non-governmental purposes of motion picture films\nproduced by federal departments and agencies. Your request has reference to a\nmemorandum from Paul Southwick, dated June 3, 1963, in which he outlines a\nproposed use of government motion picture films documenting activities of the\nKennedy administration. His memorandum states in part:\nI am requesting Federal agencies wherever possible to obtain both\nstill and motion picture films to document activities of the Kennedy\nAdministrative, with particular emphasis on human interest. Example: films showing men being put to work on Accelerated Public\nWork Projects.\nThe intended uses of movies include two basic ones: by Congressmen and Senators on their local \xe2\x80\x9cpublic service\xe2\x80\x9d TV programs,\nand later, in a documentary or series of documentaries, depicting\nprogress under the Kennedy Administration.\nThe latter would have a partisan use1 and will probably be produced, directly or indirectly, in coordination with the Democratic\nNational Committee. It is hoped that professional help would be donated for editing, arranging and narrating.\nQuestion: Are there any legal pitfalls in regard to such use of\ngovernment films? I don\xe2\x80\x99t see any problem in regard to stills\xe2\x80\x94they\n1\nI assume from this statement that the inquiry has no relationship to any films which might be\nmade or released for historical rather than partisan purposes.\n\n285\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nare public property, publicly released, for use by anyone. Still pictures are already being used regularly in the \xe2\x80\x98Democrat\xe2\x80\x99 and I assume this is proper. With movies, we would want to excerpt, rearrange and edit. Could government movies be made available to DNC\nfor such purpose? If not, could they be made available to some other\nnon-government group for essentially the same purpose?\nWith respect to still pictures, it appears that there is no legal problem since Mr.\nSouthwick indicates that he refers only to pictures \xe2\x80\x9cpublicly released, for use by\nanyone.\xe2\x80\x9d Consequently, this memorandum is confined to a discussion of the use of\ngovernment motion picture films.\nI. Summary\nGovernment motion picture films may be made available to the Democratic\nNational Committee or congressmen in circumstances in which public release is\nauthorized by statute. In the absence of statutory authority, government films may\nbe made available to the Committee on a revocable loan basis if a public interest\ncan be shown to justify such loan and if the films are available equally to other\nprivate organizations. However, it would be improper for any government agency\nto produce a film for the specific purpose of making it available to the Democratic\nNational Committee or to congressmen, and, as a matter of policy, an arrangement\nwhich creates the suspicion that the films were produced for such a purpose should\nbe avoided.\nII. Discussion\nSome federal agencies have specific statutory authority to release government\nfilms for public use. However, specific statutory authorization for general public\nrelease of government films appears to be limited to a few agencies. For example,\nthe Agriculture Department is authorized to loan, rent or sell copies of films.\n5 U.S.C. \xc2\xa7 554 (1958). Also, the Secretary of the Interior is authorized to prepare\nfor free distribution or exhibit or to offer for sale films pertaining to the National\nFisheries Center and Aquarium. 16 U.S.C. \xc2\xa7 1052(b)(2) (Supp. IV 1958).\nStatutory permission for the public release of films may be restricted. For\nexample, under the United States Information and Educational Exchange Act of\n1948, the United States Information Agency (\xe2\x80\x9cUSIA\xe2\x80\x9d) is authorized to produce\nfilms for \xe2\x80\x9cdissemination abroad.\xe2\x80\x9d Pub. L. No. 80-402, \xc2\xa7 501, 62 Stat. 6, 9 (1948)\n(codified at 22 U.S.C. \xc2\xa7 1461 (1958)).2 In addition, provisions of some appropria2\nDuring the visit of Mrs. John F. Kennedy to India and Pakistan, the USIA produced two films for\n\xe2\x80\x9cdissemination abroad,\xe2\x80\x9d one of the First Lady\xe2\x80\x99s visit to Pakistan and one of her visit to India. Pursuant\nto authority contained in 22 U.S.C. \xc2\xa7 1437, the USIA contracted with United Artists for the production\nof a third film of Mrs. Kennedy\xe2\x80\x99s trip. This film, utilizing in part government footage, was produced at\n\n286\n\n\x0cProviding Government Films to the Democratic National Committee or Congressmen\n\ntion acts forbid use of appropriations for publicity or propaganda purposes. For\nexample, the Departments of State, Justice, and Commerce, the Judiciary, and\nRelated Agencies Appropriation Act for 1963, Pub. L. No. 87-843, 76 Stat. 1080,\ncontains in title VII the following provision:\nNo part of any appropriation contained in this Act shall be used for\npublicity or propaganda purposes not authorized by Congress.\nId. \xc2\xa7 701.\nA systematic practice of a government agency to produce or obtain films and\nturn them over to a political organization might well raise questions as to the use\nof appropriated funds under such a provision.\nAbsent specific statutory authority, the right of the head of a department or\nagency to give, lend, sell, or otherwise dispose of government film to a private\norganization would appear to be limited by constitutional and statutory prohibitions and by the necessity for a determination as to whether the proposed disposition would be in the public interest. Article 4, Section 3, Clause 2 of the Constitution gives to the Congress the power \xe2\x80\x9cto dispose of . . . Property belonging to the\nUnited States.\xe2\x80\x9d\nUnder Article 4, Section 3, Clause 2 of the Constitution, \xe2\x80\x9cproperty once acquired by the Government may not be sold, or title otherwise disposed of, except\nunder the authority of Congress.\xe2\x80\x9d Grant of Revocable Licenses Under Government-Owned Patents, 34 Op. Att\xe2\x80\x99y Gen. 320, 322 (1924). Attorney General Stone\nstated that \xe2\x80\x9cthis prohibition extends to any attempt to alienate a part of the\nproperty, or in general, in any manner to limit or restrict the full and exclusive\nownership of the United States therein.\xe2\x80\x9d Id. As a consequence of this constitutional prohibition, a government agency was held not to have authority to sell maps to\nindividuals or private companies without statutory authorization. Puerto Rico\nReconstruction Company\xe2\x80\x94Sale of Prints of Survey Map, 39 Op. Att\xe2\x80\x99y Gen. 324,\n325 (1939).\nCongressional authority appears to be unnecessary, however, to permit the head\nof a department or agency3 to grant to individuals or organizations revocable\nlicenses to use government property for a purpose beneficial to the government or\nin the public interest. The distinction between alienation of government property\nand the granting of a revocable use license in the public interest was discussed by\nAttorney General Stone:\nthe expense of United Artists and was commercially released through the Selzer Company. The\ngovernment benefited from this arrangement by obtaining a third film of Mrs. Kennedy\xe2\x80\x99s trip produced\nat the expense of a private company and by use of United Artists\xe2\x80\x99 distribution facilities in countries in\nwhich USIA has no facilities. The government footage was loaned to United Artists, which returned the\noriginal to the government after making copies. Dissemination of one of the films in the United States\nwas admitted by USIA not to be authorized.\n3\nSee infra note 4.\n\n287\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\n. . . And it has been uniformly held that revocable licenses, in the\npublic interest, for the use of Government property, could be given\nby the head of the appropriate Department. [Revocable Licenses, 22\nOp. Att\xe2\x80\x99y Gen. 240, 245 (1898); Government-Owned Site at Aqueduct Bridge, 30 Op. 470, 482 (1915); Transfer of Property from One\nGovernment Department to Another, 32 Op. 511, 513 (1921); Use of\na Portion of Camp Lewis Military Reservation by the Veterans\xe2\x80\x99 Bureau, 33 Op. 325, 327 (1922).] The power has been frequently exercised by such Departments in accordance with these opinions.\nWhen the law has been so construed by Government Departments\nduring a long period as to permit a certain course of action, and\nCongress has not seen fit to intervene, the interpretation so given is\nstrongly persuasive of the existence of the power. . . . In [United\nStates v. MacDaniel, 32 U.S. (7 Pet.) 1, 14 (1833)], it is made clear\nthat the head of a Government Department does not have to show\nstatutory authority for everything he does. Reasonable latitude in the\nexercise of discretion is implied. \xe2\x80\x9cUsages have been established in\nevery Department of the Government, which have become a kind of\ncommon law, and regulate the rights and duties of those who act\nwithin their respective limits . . . . Usage can not alter the law, but it\nis evidence of the construction given to it.\xe2\x80\x9d . . .\n....\nUnder section 161 of the Revised Statutes, the Head of each Department regulates the custody, use, and preservation of property\npertaining to it. So that it may be said that while the Constitution\nprohibits the alienation of the title, ownership or control of Government property without Congressional sanction, Congress has given\nthe Head of a Department authority and control over the \xe2\x80\x9cuse\xe2\x80\x9d and\npreservation of such property in his charge.\nGrant of Revocable Licenses, 34 Op. Att\xe2\x80\x99y Gen. at 326\xe2\x80\x9327. See also Government\nResearch Facilities\xe2\x80\x94Use by Graduate and Faculty Scientists\xe2\x80\x94National Bureau of\nStandards Cooperative Program, 36 Comp. Gen. 561, 563\xe2\x80\x9364 (1957).\nIt would seem to follow from the foregoing that, subject to appropriate conditions, the head of a department or agency4 may permit the use of government films\n4\nUndoubtedly, the head of an agency, as well as the head of a department, possesses authority to\npermit non-governmental use of official property. Although in Grant of Revocable Licenses, 34 Op.\nAtt\xe2\x80\x99y Gen. 320, Attorney General Stone relied in part upon Rev. Stat. \xc2\xa7 161 (5 U.S.C. \xc2\xa7 22), which\nauthorizes the head of an executive department to regulate the custody, use and preservation of\nproperty belonging to that department, it does not appear that the Attorney General\xe2\x80\x99s opinion would\nhave been different if Rev. Stat. \xc2\xa7 161 had not been in force. Consequently, the opinion seems to be\n\n288\n\n\x0cProviding Government Films to the Democratic National Committee or Congressmen\n\nby private organizations if a public interest can be demonstrated. If a government\ndecision should be made that public dissemination of any film is in the public\ninterest, the Democratic National Committee or congressmen would be entitled to\naccess to the film equally with any other private organization.\nThis conclusion does not, however, dispose of all of the questions raised by Mr.\nSouthwick\xe2\x80\x99s memorandum. He states that the films are intended to be used by\ncongressmen in their \xe2\x80\x9cpublic service\xe2\x80\x9d broadcasts and for a series of documentaries\nto be a produced in coordination with the Democratic National Committee which\nwould probably have a \xe2\x80\x9cpartisan use.\xe2\x80\x9d Nothing in the conclusion stated above\nwould justify a government agency in producing or collecting films for such\npurposes. Statutory or other authority to make or collect films and to distribute\nthem to the public does not, as I have stated, preclude distribution to persons or\norganizations which may use them for partisan political purposes. However, it can\nhardly be contended that such authority extends to production or collection of\nfilms in order to foster such purposes. 5 As a realistic matter, films made or\ncollected for use either by a political committee or for a congressman\xe2\x80\x99s \xe2\x80\x9cpublic\nservice\xe2\x80\x9d broadcasts would in effect be produced or assembled for partisan political\npurposes.\nI might add that a systematic practice of government agencies\xe2\x80\x99 supplying films\nto be used for private political purposes raises some questions which should be\nseriously considered. I think that no question at all is presented when it is the\nmission of a government organization, such as the Library of Congress, to\nmaintain a film or picture library, with prints available to the general public. Those\nwho wish to make use of its facilities for their private political purposes are as\nentitled to do so as anyone is. But where the collection or production and distribution of films is incidental to the basic mission of any agency, a close working\nrelationship with persons or organizations who use the films for political purposes\nis apt to create the suspicion that, in the first instance, they were made or collected\nfor those purposes. Obviously this should be avoided.\nNORBERT A. SCHLEI\nAssistant Attorney General\nOffice of Legal Counsel\n\nbroad enough to support the right of the head of an agency to allow private use of government property\nsubject to appropriate conditions. In this connection, it is of interest that the Comptroller General has\nexpressed the opinion that the Federal Communications Commission, an independent agency, may\nissue a revocable license for the use of government property. Public Property\xe2\x80\x94Administrative\nAuthority to Dispose Of, 22 Comp. Gen. 563 (1942).\n5\nWith respect to agencies subject to statutory limitations on the use of appropriated funds for\npublicity or propaganda purposes, such activity might also violate the provisions of the relevant\nappropriation act.\n\n289\n\n\x0c'


b'Section 609 of the FY 1996 Omnibus Appropriations Act\nA provision of an appropriations law purporting to condition the use of funds to pay for the United\nStates\xe2\x80\x99 diplomatic representation to Vietnam on the President\xe2\x80\x99s making a particular detailed certifi\xc2\xad\ncation \xe2\x80\x9c within 60 days\xe2\x80\x9d does not require the cutoff of the covered funds until such time as the\nPresident has made the certification, but instead permits use of the funds to maintain diplomatic\nrepresentation in Vietnam for 60 days after enactment.\nTaken as a whole, the provision impermissibly impairs the exercise of the core Presidential power\nto recognize, and maintain diplomatic relations with, a foreign government. Hence, the provision\nis unconstitutional and without legal force or effect.\n\nMay 15, 1996\nM e m o r a n d u m O p in io n\n\nfo r t h e\n\nD epartm ent\n\nof\n\nL e g a l A d v is e r\n\nState\n\nYou have sought our advice on section 609 of the Fiscal Year 1996 Omnibus\nAppropriations Act (H.R. 3019), Pub. L. No. 104-134, 104 Stat. 1321, 1321\xe2\x80\x94\n63 (\xe2\x80\x9c the Act\xe2\x80\x9d ), which the President signed into law on April 26, 1996.1 That\nsection purports to condition the use of appropriated funds to pay for the United\nStates\xe2\x80\x99 diplomatic representation to Vietnam on the President\xe2\x80\x99s making a detailed\ncertification \xe2\x80\x9c within 60 days.\xe2\x80\x9d You have asked whether section 609 prohibits\nthe use of appropriated funds for this purpose from the moment the Act was signed\ninto law, unless the President, within 60 days thereafter, provides the requisite\ncertification, and so enables diplomatic relations between the two countries to re\xc2\xad\nsume. 2\nAt the very least, section 609 does not require a cutoff of funds until the Presi\xc2\xad\ndent makes the certification. Rather, the use of appropriated funds for maintaining\ndiplomatic representation to Vietnam remains lawful and proper during the sixty\ndays after enactment, so that the President, during that period, may gather and\nassess the facts needed to enable him to decide whether or not to provide the\ncertification, without disrupting the United States\xe2\x80\x99 existing diplomatic relations\nwith Vietnam in the interval. This construction follows the natural meaning of\nthe language of the section, comports with the rational and efficient use of govern\xc2\xad\nment resources, and reduces the likelihood of unnecessary diplomatic friction.\nMore importantly, we believe that section 609, taken as a whole, impermissibly\nimpairs the exercise of a core Presidential power\xe2\x80\x94 the authority to recognize,\n>The section originated as section 609 of the Commerce, Justice, State and the Judiciary Appropriations Bill\nfor Fiscal Year 1996 (H.R. 2076).\n2 Several members o f Congress have written to the Secretary o f State to advocate this view o f the provision\xe2\x80\x99s\nmeaning. See Letter for the Honorable Warren Christopher, Secretary o f State, from Senator Bob Smith, et al. (Apr.\n26, 1996) ("C ongressional Letter\xe2\x80\x9d ). In support o f their interpretation, the writers attach a tw o paragraph opinion\nfrom an Associate General Counsel o f the General Accounting Office. See Letter for the Honorable Robert C. Smith,\nUnited States Senate, from Gary I. Kepplinger, Associate General Counsel, General Accounting Office (Apr. 26,\n1996) ( \xe2\x80\x9c GAO O pinion\xe2\x80\x9d ).\n\n189\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nand to maintain diplomatic relations with, a foreign government.3 Accordingly,\nsection 609 is unconstitutional and without legal force or effect.\nSection 609, in its entirety, reads as follows:\nNone of the funds appropriated or otherwise made available by\nthis Act may be obligated or expended to pay for any cost incurred\nfor (1) opening or operating any United States diplomatic or con\xc2\xad\nsular post in the Socialist Republic of Vietnam that was not oper\xc2\xad\nating on July 11, 1995; (2) expanding any United States diplomatic\nor consular post in the Socialist Republic of Vietnam that was oper\xc2\xad\nating on July 11, 1995; or (3) increasing the total number of per\xc2\xad\nsonnel assigned to United States diplomatic or consular posts in\nthe Socialist Republic of Vietnam above the levels existing on July\n11, 1995, unless the President certifies within 60 days, based upon\nall information available to the United States Government that the\nGovernment of the Socialist Republic of Vietnam is cooperating\nin full faith with the United States in the following four areas:\n(1) Resolving discrepancy cases, live sightings and field ac\xc2\xad\ntivities,\n(2) Recovering and repatriating American remains,\n(3) Accelerating efforts to provide documents that will help\nlead to fullest possible accounting of POW/MIA\xe2\x80\x99s,\n(4) Providing further assistance in implementing trilateral in\xc2\xad\nvestigations with Laos.\nThe statutory reference to \xe2\x80\x9c July 11, 1995\xe2\x80\x9d keys the provisions of the bill to\nthe date of the President\xe2\x80\x99s offer to establish diplomatic relations with Vietnam.\nSee Rem arks by the President Announcing the Normalization o f Diplom atic R ela\xc2\xad\ntions with Vietnam, 2 Pub. Papers of William J. Clinton 1073 (July 11, 1995).\n\nIn announcing that offer, the President stated that from the beginning of his Ad\xc2\xad\nministration, \xe2\x80\x9c any improvement in relationships between America and Vietnam\nhas depended upon making progress on the issue of Americans who were missing\nin action or held as prisoners of war.\xe2\x80\x9d Id. Noting that he had lifted the trade\nembargo against Vietnam seventeen months earlier \xe2\x80\x9c in response to their coopera\xc2\xad\ntion and to enhance our efforts to secure the remains of lost Americans and to\n3 There is yet another apparent constitutional flaw in section 609: it purports to prescribe to the President the\nm anner in w hich he must proceed to recover the remains o f Americans, and to account for POWs and M lAs, in\nV ietnam. Such detailed prescriptions may w ell encroach on the President\xe2\x80\x99s constitutional authority as Commander\nin C hief. W e do not press that objection here.\n\n190\n\n\x0cSection 609 o f the FY 1996 Omnibus Appropriations Act\n\ndetermine the fate of those whose remains have not been found,\xe2\x80\x9d id., the President\nstated that the Government of Vietnam had, in the interval, \xe2\x80\x9c taken important steps\nto help us resolve many cases,\xe2\x80\x9d including releasing the remains of Americans,\ndelivering documents that shed light on the fate of MIAs, assisting efforts to re\xc2\xad\nduce discrepancy cases, and stepping up cooperation with Laos, where many\nAmericans were lost. Id. The President stated that \xe2\x80\x9c [n]ever before in the history\nof warfare has such an extensive effort been made to resolve the fate of soldiers\nwho did not return,\xe2\x80\x9d but he added that \xe2\x80\x9c normalization of our relations with Viet\xc2\xad\nnam is not the end of our effort.\xe2\x80\x9d Id. On July 12, 1995, the Government of Viet\xc2\xad\nnam agreed to diplomatic relations with the United States. Soon thereafter, the\nUnited States Liaison Office in Vietnam was upgraded to a Diplomatic Post.\nThe four certification requirements in section 609 relate, respectively, to resolv\xc2\xad\ning discrepancy cases, recovering American remains, accelerating the provision\nof documents relating to POWs and MIAs, and promoting trilateral investigations\nwith Laos. All four conditions derive directly from a July 2, 1993 Presidential\nstatement that set forth the areas in which the United States expected to see\nprogress before expanding diplomatic relations with the Government of Vietnam.\nSee Statement by the President on United States Policy Toward Vietnam, 1 Pub.\nPapers of William J. Clinton 990 (July 2, 1993).4 The State Department advises\nus that later statements and testimony have referred, in varying language, to the\nsame four areas, and that, since July, 1993, progress in United States-Vietnamese\nrelations has been measured in terms of the satisfaction of the four criteria.\nI.\nSection 609 provides that \xe2\x80\x9c [n]one of the funds appropriated or otherwise made\navailable by this Act may be obligated or expended to pay for any cost incurred\xe2\x80\x9d\nfor the stated purposes, \xe2\x80\x9c unless the President certifies within 60 days, based upon\nall information available to the United States Government that the Government\nof the Socialist Republic of Vietnam is cooperating in full faith with the United\nStates\xe2\x80\x9d in four areas relating to POWs and MIAs. The Congressional Letter, sent\njust after the bill was passed and signed, argues that the provision forbids any\nexpenditure of funds before the President makes a certification. The letter relies\non and attaches a six-sentence opinion of the Associate General Counsel of the\nGeneral Accounting Office. According to that opinion, the \xe2\x80\x9c plain language\xe2\x80\x9d of\nthe section leads to the conclusion that \xe2\x80\x9c no obligations or expenditures may be\n4 In that statement, the President announced that Vietnam would have access to the International Monetary Fund,\nand that he would be sending a high-level delegation to Vietnam. He explained that \xe2\x80\x9c any further steps in relations\nbetween our two nations depend on tangible progress on the outstanding POW/M1A cases," and said that the delega\xc2\xad\ntion would make clear that \xe2\x80\x9c (w]e insist upon efforts by the Vietnamese in four key areas,\xe2\x80\x9d including (1) remains,\n(2) discrepancy cases, (3) investigations with Laos and (4) archival material. Id. at 991. These four conditions are\nsubstantially the same as those that section 609 treats as mandates that the President must certify Vietnam has\nmet.\n\n191\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nmade prior to the President\xe2\x80\x99s certification.\xe2\x80\x9d The Congressional Letter also refers\nto, but does not supply, an opinion of the Senate Legislative Counsel.\nWe conclude that, under the better reading, section 609 would not cut off funds\nuntil 60 days have elapsed. Section 609 purports to forbid obligations or expendi\xc2\xad\ntures \xe2\x80\x9c unless the President certifies within 60 days\xe2\x80\x9d that certain facts exist; the\nprovision does not say that funds may not be obligated or expended \xe2\x80\x9c until\xe2\x80\x9d the\nPresident certifies or unless the President \xe2\x80\x9c has certified.\xe2\x80\x9d The most natural read\xc2\xad\ning of the language actually used is that funds are to be cut off if sixty days\npass without the Presidential certification.\nOur reading is supported by section 609\xe2\x80\x99s requirement that the President make\nhis decision \xe2\x80\x9c based upon all information available to the United States Govern\xc2\xad\nment.\xe2\x80\x9d The statute thus contemplates a wide-ranging inquiry, covering every\nagency of the Government that might have relevant information. To require a\ntermination of funds before the 60-day period elapsed would push the President\ntoward making a hasty and ill-considered decision. Such a decision would conflict\nwith the full inquiry that section 609 requires.\nFurthermore, the Supreme Court has cautioned that Congress must express its\nintent clearly before a statute is read \xe2\x80\x9c so as to give rise to a serious question\nof separation of powers which in turn would . . . implicate[] sensitive issues\nof the authority of the Executive over relations with foreign nations.\xe2\x80\x9d NLRB v.\nC atholic Bishop o f Chicago, 440 U.S. 490, 500 (1979) (describing McCulloch\nv. Sociedad N acional d e M arineros d e Honduras, 372 U.S. 10 (1963)). See also\nPublic Citizen v. U nited States D ep \'t o f Justice, 491 U.S. 440, 465-67 (1989);\nArm strong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991). Section 609, if read\nto order an immediate cut off of funds, would impede the President\xe2\x80\x99s conduct\nof foreign affairs. On that reading, section 609 could require largely ending oper\xc2\xad\nations at the Embassy pending the certification and then starting up operations\nagain after a certification was made. Such a procedure not only would entail severe\nadministrative difficulty, but also could cause diplomatic embarrassment. Such\nlurches from full to lesser diplomatic relations and back again would call into\nquestion the reliability and stability of the United States\xe2\x80\x99 conduct of foreign af\xc2\xad\nfairs. As we discuss below, we believe that section 609 encroaches on the Presi\xc2\xad\ndent\xe2\x80\x99s constitutional powers and is therefore invalid. At the least, however, the\n\xe2\x80\x9c within 60 days\xe2\x80\x9d language of section 609 should be construed in a manner that\navoids seriously impairing the President in the exercise of his constitutional re\xc2\xad\nsponsibilities.\nIn offering a different interpretation, the GAO Opinion relies on the \xe2\x80\x9c plain\nlanguage\xe2\x80\x9d of the section. However, the \xe2\x80\x9c plain language\xe2\x80\x9d does not support the\nGAO Opinion. Furthermore, even if (contrary to our view) section 609 in at least\nsome circumstances might cut off funds immediately, the GAO Opinion\xe2\x80\x99s \xe2\x80\x9c plain\nlanguage\xe2\x80\x9d is not the literal language of section 609. The literal language of sec\xc2\xad\ntion 609 would be that expenditures made even before the Presidential certification\n192\n\n\x0cSection 609 o f the FY 1996 Omnibus Appropriations Act\n\nwould be lawful, as long as the President made the certification at any time during\nthe 60-day period. The GAO Opinion simply asserts that the \xe2\x80\x9c plain language\xe2\x80\x9d\nmakes a Presidential certification \xe2\x80\x9c a precondition to the availability of the funds,\xe2\x80\x9d\nwithout explaining why this result follows.\nWhen section 609 was being considered by Congress, it would have been a\nsimple matter to draft the language to achieve the result that the authors of the\nCongressional Letter now desire. Such language could have stated\xe2\x80\x94 but did not\nstate \xe2\x80\x94 that no funds appropriated or otherwise made available by the Act could\nbe obligated or expended \xe2\x80\x9c unless the President has previously certified\xe2\x80\x9d that the\nrequisite conditions had been met. Instead of seeking to amend the provision, the\nauthors waited until the legislation was enacted and then sought to place a par\xc2\xad\nticular interpretation on the language. As post-enactment legislative history, the\nCongressional Letter sheds no light on the meaning of the language. See, e.g.,\nSullivan v. Finkelstein, 496 U.S. 617, 631-32 (1990) (Scalia, J., concurring in\npart); Tataranowicz v. Sullivan, 959 F.2d 268, 278 n.6 (D.C. Cir. 1992), cert,\ndenied, 506 U.S. 1048 (1993); Michigan United Conservation Clubs v. Lujan,\n949 F.2d 202, 208-10 (6th Cir. 1991); Multnomah Legal Servs. Workers Union\nv. Legal Services Corp., 936 F.2d 1547, 1555 (9th Cir. 1991).5\nII.\nMore fundamentally, section 609\xe2\x80\x99s prohibition on the use of appropriated funds\nto maintain diplomatic relations with Vietnam unless the President provides Con\xc2\xad\ngress with a detailed certification is an unconstitutional condition on the exercise\nof the President\xe2\x80\x99s power to control the recognition and non-recognition of foreign\ngovernments\xe2\x80\x94 a power that flows directly from his textually-committed authority\nto receive ambassadors, U.S. Const, art. II, \xc2\xa7 3 .6 It is by now firmly established\nthat \xe2\x80\x9c [p]olitical recognition is exclusively a function of the Executive.\xe2\x80\x9d Banco\nNacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964).7 As President Wood\xc2\xad\nrow Wilson (himself a leading constitutional scholar) stated in a message to Con\xc2\xad\ngress in 1919, \xe2\x80\x9c the initiative in directing the relations of our Government with\nforeign governments is assigned by the Constitution to the Executive, and to the\n5 If the \xe2\x80\x9c plain language" o f section 609 required an immediate termination o f funds, it is hard to see why the\nauthors o f the Congressional Letter thought it necessary to seek an opinion on the point from the G AO. The insistence\nthat the \xe2\x80\x9c plain language" supports their view rings hollow.\n6 Relaled)y, o f course, the President has the pow er to appoint Ambassadors, and to make treaties, by and with\nthe advice and consent o f the Senate. U.S. Const, ait. II, \xc2\xa7 2 , cl. 2.\n7 See also United Slates v. Belmont, 301 U.S. 324, 330 (1937); Goldwater v. Carter, 444 U.S. 996, 1007 (1979)\n(Brennan, J., dissenting); Can v. United States, 14 F.3d 160, 163 (2d Cir. 1994); Phelps v. Reagan, 812 F.2d 1293,\n1294 (10th Cir. 1987); Americans United fo r Separation o f Church and State v. Reagan, 786 F.2d 194, 202 (3d\nCir.), cert, denied, 479 U.S. 914 (1986); Republic o f Vietnam v. Pfizer, Inc., 556 F.2d 892, 894 (8th Cir. 1977);\nRestatement (Third) o f the Foreign Relations Law o f the United States \xc2\xa7204 (1987); 1 Green Hackworth, Digest\no f International Law 161-62(1940).\n\n193\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nExecutive, only.\xe2\x80\x9d 8 Accordingly, Congress may not determine the conditions that\na foreign government must satisfy in order to be recognized by, or to enter into\nnormal diplomatic relations with, the United States.\nThe Executive\xe2\x80\x99s recognition power9 necessarily subsumes within itself the\npower to withhold or deny recognition, to determine the conditions on which rec\xc2\xad\nognition will be accorded, and to define the nature and extent of diplomatic con\xc2\xad\ntacts with an as-yet unrecognized government.10 The United States\xe2\x80\x99 diplomatic\nhistory has illustrated, on many occasions, the importance of the Executive\xe2\x80\x99s pow\xc2\xad\ners to withhold or condition recognition.11 Just as Congress may not usurp the\nExecutive\xe2\x80\x99s power by attempting to compel the President affirmatively to recog\xc2\xad\nnize a particular government as the sole sovereign of a disputed area,12 so also\nit may not ordain that the Executive is to withhold recognition, or that the Execu\xc2\xad\ntive is not to accord recognition unless the foreign government concerned complies\nwith requirements that Congress, rather than the Executive, imposes. Were Con8 President W oodrow W ilson to Senator A lbert B. Fall, Dec. 8, 1919, reprinted in S. Doc. No. 66-285, at 843D\n(1920). Sim ilarly, when the Senate Foreign Relations Committee informed the executive branch during President\nG rover C leveland\'s second Administration that it proposed to report out a resolution that purported to recognize\nthe independence o f a Republic o f Cuba, the Secretary o f State, Richard Olney, responded that that resolution, if\nadopted, could only be regarded as "an expression o f opinion,\xe2\x80\x9d because *\xe2\x80\x98[t]he power to recognize the so-called\nR epublic o f C uba as an independent state rests exclusively w ith the Executive.\xe2\x80\x9d See Eugene V. Rostow, Great\nCases Make Bad Law; The War Powers Act, 5 0 Tex. L. Rev. 833, 866 (1972) (quoting Olney statement).\n9 \xe2\x80\x9c R ecognition\xe2\x80\x9d has been defined as \xe2\x80\x9c the act o f the Executive taking note of the facts [e.g., that a particular\ngovernm ent holds pow er in a certain territory] and indicating a willingness to allow all the legal consequences of\nthat noting to operate. These are consequences in international law. W hether consequences also follow in municipal\nlaw is a m atter for municipal law itself to determ ine.\xe2\x80\x9d 1 D aniel Patrick O \xe2\x80\x99Connell, International Law 128 (1970)\n(footnote om itted). The Executive may engage in diplomatic o r other dealings with a government that it does not\nrecognize, for exam ple by entering into treaties o r other agreem ents with that government.\n,0 The P resident\xe2\x80\x99s recognition power \xe2\x80\x9c uicludes the power to determine the policy which is to govern the question\no f recognition.\xe2\x80\x9d United States v. Pink, 315 U .S. 203, 229 (1942). The courts have given effect both to the Executive\xe2\x80\x99s\nrefusal to recognize particular governments, an d to the policies underlying such non-recognition. See, e.g., Latvian\nState Cargo & Passenger S.S. Line v. McGrath, 188 F.2d 1000, 1003 (D.C. C ir.), cert, denied, 342 U.S. 816 (1951);\nThe Maret, 145 F.2d 431, 442 (3d Cir. 1944); Russian Republic v. Cibrario, 235 N.Y. 255, 263-65 (1923).\n11 Such occasions include President Wilson\xe2\x80\x99s refusal to recognize the H uerta government o f Mexico in 1913 (which\ncontributed to its downfall a year later); the refusal o f W ilson\xe2\x80\x99s successors until President Franklin Roosevelt to\nrecognize the U nion o f Soviet Socialist Republics; the Hoover Administration\xe2\x80\x99s non-recognition of the Japanese\npuppet state o f M anchukuo in 1932; and the non-recognition o f the People\xe2\x80\x99s Republic o f China from the Truman\nA dm inistration until President Nixon\xe2\x80\x99s de facto recognition o f that government in 1972. See Congressional Research\nService, The Constitution o f the Untied States o f America: Analysis and Interpretation, S. Doc. No. 99-16, at 567\n(1987). A lthough originally it was the policy o f the United States to \xe2\x80\x9c accept any foreign government existing de\nfacto, respecting every fact as supreme over all theory,\xe2\x80\x9d Construction o f the Mesilla Treaty, 7 Op. A tt\xe2\x80\x99y Gen.\n582, 587 (1855), recognition has come to depend on a variety o f foreign policy concerns. Thus, the United States\nhas at tim es withheld recognition unless the foreign government concerned has agreed to comply with particular\nconditions. See, e.g., Establishment of Diplomatic Relations With Albania, 13 D ep\xe2\x80\x99t St. Bull. 767 (1945); American\nMission to Albania Withdrawn, 15 Dep\xe2\x80\x99t St. Bull. 913 (1946); American Support o f Free Elections in Eastern Europe,\n17 D ep\xe2\x80\x99t St. Bull. 407, 409 (1947) (non-recognition o f Albania fo r failure to satisfy conditions required by Executive).\nIn this A dm inistration, the President has stated that he had used the possibility of United States recognition of\nthe G overnm ent o f A ngola as \xe2\x80\x9c leverage towards promoting an end to the civil war and hostilities\xe2\x80\x9d in that country.\nRemarks and an Exchange With Reporters Prior to Discussions With Archbishop Desmond Tutu, 1 Pub. Papers\no f W illiam J. Clinton 704, 704 (May 19, 1993). See also Louis L. Jaffe, Judicial Aspects o f Foreign Relations\n107-10 (1933) (through non-recognition, U nited States at various times pursued policy goal of discouraging violent\nrevolutions against existing governments); U.S. Policy on Nonrecognition o f Communist China, 39 D ep\xe2\x80\x99t St. Bull.\n385 (1958) (bases o f United States policy on nonrecognition o f Communist China).\n12 See Bill to Relocate United States Embassy from Tel Aviv to Jerusalem, 19 Op. O.L.C. 123 (1995).\n\n194\n\n\x0cSection 609 o f the FY 1996 Omnibus Appropriations Act\n\ngress to seek to direct and control the exercise of the recognition power in any\nof these ways, it would violate separation of powers principles.\nThe Supreme Court has identified two fashions in which Congress may\nimpermissibly encroach on the Executive power. First, Congress may attempt to\nexercise itself one of the functions that the Constitution commits solely to the\nExecutive, thus \xe2\x80\x9c posting] a \xe2\x80\x98danger of congressional usurpation of Executive\nBranch functions.\xe2\x80\x99 \xe2\x80\x9d Morrison v. Olson, 487 U.S. 654, 694 (1988) (quoting Bow\xc2\xad\nsher v. Synar, 478 U.S. 714, 727 (1986)). Second, Congress may not attempt\nto \xe2\x80\x9c \xe2\x80\x98impermissibly undermine\xe2\x80\x99 the powers of the Executive Branch, [Commodity\nFutures Trading Comm\xe2\x80\x99n v.] Schor, [478 U.S. 833 (1986)] at 856, or *disrupt[]\nthe proper balance between the coordinate branches [by] preventing] the Execu\xc2\xad\ntive Branch from accomplishing its constitutionally assigned functions,\xe2\x80\x99 Nixon v.\nAdministrator o f General Services, [433 U.S. 425 (1977)] at 433.\xe2\x80\x9d M orrison, 487\nU.S. at 695.\nSection 609 both poses a \xe2\x80\x9c danger of congressional usurpation\xe2\x80\x9d of the Executive\nfunction of recognition, and \xe2\x80\x9c impermissibly undermine[s]\xe2\x80\x9d that authority. In ef\xc2\xad\nfect, section 609 requires the President either (1) to reduce our diplomatic presence\nin, and contacts with, Vietnam to the levels that existed immediately before his\nJuly 11,1995 offer to normalize relations, or else (2) to go forward with normal\xc2\xad\nizing relations, but only if Vietnam satisfies specific conditions that Congress,\nrather than the Executive, demands. This Congress may not do: if the United\nStates is to impose conditions precedent on Vietnam for being recognized, it is\nfor the President, not Congress, to decide what those conditions a re .13\nSpecifically, section 609 purports to impose a certification requirement on the\navailability of funds (1) to \xe2\x80\x9c open[] or operat[e]\xe2\x80\x9d a diplomatic or consular post\nin Vietnam that was not operating on the date the President offered to establish\ndiplomatic relations with that country, (2) to \xe2\x80\x9c expand[]\xe2\x80\x9d any such post that was\noperating in Vietnam before that date, or (3) to augment the number of personnel\nassigned to United States diplomatic or consular posts in Vietnam before that date.\nIn our view, each of these three restrictions is unconstitutional. That the first two\nrestrictions (on opening, operating or expanding any diplomatic or consular post\nin Vietnam) overtly infringe on the President\xe2\x80\x99s recognition power is, we think,\nclear.14 While the unconstitutionality of the third restriction (on the number of\n13 The fact that the conditions Congress imposed in section 609 are similar to those that the President himself\nset forth in July, 1993 does not alter the analysis. The President retained the discretion to revise his criteria, apply\nthem flexibly, o r take account o f other unrelated factors, in making an overall judgment as to the wisdom of normal\xc2\xad\nizing our relations with Vietnam. As codified in section 609, however, the criteria have been transformed into hardand-fast requirements that the President must certify Vietnam to have met before our diplomatic relations with its\ngovernment can be normalized. Section 609 precludes the President from making the finely-shaded, situation-sensitive\njudgments that are necessary for conducting a successful recognition policy.\n14 An 1855 opinion by Attorney General Caleb Cushing, though rendered on grounds o f the Appointments Clause\nrather than on the basis o f the recognition power, supports our conclusion that Congress may not attempt to dictate\nto the President the level o f our diplomatic representation to Vietnam. Attorney General Cushing addressed himself\nto legislation that stated that, from and alter a date certain, the President \xe2\x80\x9c shall/* by and with the Senate\xe2\x80\x99s advice\nand consent, \xe2\x80\x9c appoint representatives o f the grade o f envoys extraordinary and ministers plenipotentiary\xe2\x80\x9d to desContinued\n\n195\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\npersonnel assigned to such posts) may be less patent, we think that, in the par\xc2\xad\nticular context surrounding the enactment of section 609, it too impermissibly in\xc2\xad\nvades a core Presidential power. As we have explained, section 609 was enacted\nagainst the backdrop of the progress that the Government of Vietnam had made\nbetween July, 1993 and July, 1995 in resolving POW/MIA issues, the President\xe2\x80\x99s\nJuly 11, 1995 offer to the Government of Vietnam, that government\xe2\x80\x99s response\nto it, and the ensuing diplomatic dealings between the two nations. Indeed, one\nof the signatories of the Congressional Letter explicitly stated that the purpose\nof a prior version of section 609 was to \xe2\x80\x9c bar[] the use of Federal funds for\nimplementing the President\xe2\x80\x99s ill-considered, pre-mature [sic] decision to expand\ndiplomatic relations with Vietnam.\xe2\x80\x9d 141 Cong. Rec. H7765 (daily ed. July 26,\n1995) (remarks of Rep. Gilman).15 Thus, the unmistakeable intent and effect of\nsection 609\xe2\x80\x99s restrictions, taken as a whole, are to return the United States\xe2\x80\x99 diplo\xc2\xad\nmatic relations with Vietnam to the very limited level that existed before the Presi\xc2\xad\ndent\xe2\x80\x99s offer, or else to require that Vietnam demonstrably satisfy requirements\nimposed by legislative mandate. Thus, even if Congress may, for reasons of econ\xc2\xad\nomy or efficiency, reduce the size of embassy staff, it may not do so as part\nof an effort, as here, to direct and control the recognition power in a particular\ninstance.\nHI.\nThe fact that in section 609 Congress is seeking to control the exercise of the\nPresidential recognition power indirectly, through the appropriations process, rath\xc2\xad\ner than as a direct mandate, does not change our conclusion. Broad as Congress\xe2\x80\x99s\nspending power undoubtedly is, it is clear that Congress may not deploy it to\naccomplish unconstitutional en d s.16 In particular, as our Office has insisted over\nignated countries. Ambassadors and other Public Ministers o f the United States, 7 Op. A tt\xe2\x80\x99y Gen. 186, 214 (1855).\nThe Attorney G eneral opined that in this context, 14 \'shall* must be construed to signify \xe2\x80\x98m ay;\xe2\x80\x99 for Congress cannot\nby law constitutionally require the President to make removals o r appointments of public ministers on a given day,\nor to make such appointm ents o f a prescribed rank, o r to make o r not make them at this or that place. . . . [W]e\nare therefore not to read this act as requiring the President to appoint and maintain a minister of the rank o f envoy\nextraordinary at the courts o f London, Paris, St. Petersburg, Madrid, Mexico, Copenhagen, regardless of what may,\nin his judgm ent and that o f the Senate, be the necessities or interests o f the public service; nor to read it as forbidding\nhim to leave either o f those legations, or an y other, in the hands of a mere charge d \xe2\x80\x99affaires.\xe2\x80\x9d Id. at 217-18.\nIn the A ttorney G eneral\xe2\x80\x99s view, the President had \xe2\x80\x9c the absolute discretion at all times . . . to appoint a public\nm inister o f such degree as he and [the Senate] might please for any particular mission, or not to appoint any.\xe2\x80\x9d\nId. at 219.\n15 See also Some in Congress oppose recognition o f Vietnam, The Baltimore Sun, July 11, 1995, at 1A, available\nin 1995 W L 2452091 (reporting statements by members o f Congress threatening to bar use of Federal funds for\ndiplom atic relations with Vietnam).\nl6See United States v. Klein, 80 U.S. (13 W all.) 128 (1872) (appropriations act unconstitutionally intruded on\nPresident\xe2\x80\x99s pardon power); United States v. Lovett, 328 U.S. 303, 316 (1946) (appropriations power misused to\nim pose bill o f attainder); cf. Metropolitan Washington Airports Auth. v. Citizens fo r the Abatement o f Aircraft Noise,\nInc., 501 U .S. 252, 271 (1991) (Congress m ay not use its power over Federal property to achieve ends by indirect\nmeans that it is forbidden to achieve directly); Frost & Frost Trucking Co. v. Railroad Comm\'n, 271 U.S. 583,\n594 (1926) (State legislature cannot attach unconstitutional condition to privilege that it may deny). See also Authority\no f Congressional Committees to Disapprove Action o f Executive Branch, 41 Op. A tt\xe2\x80\x99y Gen. 230, 233 (1955) (A tt\xe2\x80\x99y\nGen. Brownell) ( \xe2\x80\x9c If the practice o f attaching invalid conditions to legislative enactments were permissible, it is\n\n196\n\n\x0cSection 609 o f the FY 1996 Omnibus Appropriations Act\n\nthe course of several Administrations, \xe2\x80\x9c Congress may not use its power over ap\xc2\xad\npropriation of public funds \xe2\x80\x98to attach conditions to Executive Branch appropria\xc2\xad\ntions requiring the President to relinquish his constitutional discretion in foreign\naffairs.\xe2\x80\x99 \xe2\x80\x9d Issues Raised by Provisions Directing Issuance o f Official or D iplo\xc2\xad\nmatic Passports, 16 Op. O.L.C. 18, 28 (1992) (quoting Issues R aised by Foreign\nRelations Authorization Bill, 14 Op. O.L.C. 37, 42 n.3 (1990) (quoting Constitu\xc2\xad\ntionality o f Proposed Statutory Provision Requiring P rior Congressional N otifica\xc2\xad\ntion f o r Certain CIA C overt Actions, 13 Op. O.L.C. 258, 261 (1989))).17\n\nIndeed, it has long been established that the spending power may not be de\xc2\xad\nployed to invade core Presidential prerogatives in the conduct of diplomacy.18\nAs early as 1818, an attempt by Representative Henry Clay to use appropriations\nbill rider to compel the recognition of a South American government was criti\xc2\xad\ncized by other members of Congress as a violation of separation of powers prin\xc2\xad\nciples, and it soon proved to be abortive.19 Then-Secretary of State (and later\nPresident) John Quincy Adams also urged constitutional objections to Clay\xe2\x80\x99s pro\xc2\xad\nposal before President Monroe\xe2\x80\x99s Cabinet:\nInstead of admitting the Senate or House of Representatives to\nany share in the act of recognition, I would expressly avoid that\nform of doing it which would require the concurrence of those bod\xc2\xad\nies. It was, I had no doubt, by our Constitution an act of the Execu\xc2\xad\ntive authority. General Washington had exercised it in recognizing\nevident that the constitutional system o f the separability o f the branches o f Government would be placed in the\ngravest jeopardy.\xe2\x80\x9d ); Constitutionality o f Proposed Legislation Affecting Tax Refunds, 37 Op. A tt\xe2\x80\x99y Gen. 56, 61 (1933)\n(A tt\xe2\x80\x99y Gen. Mitchell) ( \xe2\x80\x9c This proviso can not be sustained on the theory that it is a proper condition attached to\nan appropriation. Congress holds the purse strings, and it may grant or withhold appropriations as it chooses, and\nwhen making an appropriation may direct the purposes to which the appropriation shall be devoted and impose\nconditions in respect to its use, provided always that the conditions do not require operation o f the Government\nin a way forbidden by the Constitution.\xe2\x80\x9d ); Memorial o f Captain Meigs, 9 Op. A tt\xe2\x80\x99y Gen 462, 469-70 (1860) (A tt\xe2\x80\x99y\nGen. Black) (concluding that appropriations bill that contained condition that money be spent only under supervision\nof congressionaJly-designated individual was invalid); William P. Barr, contribution to symposium on The Appropriations Power and the Necessary and Proper Clause, 68 Wash. U. L.Q. 623, 628 (1990) ( \xe2\x80\x9c Congress cannot use\nthe appropriations pow er to control a Presidential power that is beyond its direct control\xe2\x80\x9d ); Harold H. Koh, Why\nthe President (Almost) Always Wins in Foreign Affairs: Lessons o f the Iran-Contra Affair, 97 Yale L J . 1255, 1303\nn.218 (1988) (citing support for view that Congress acts unconstitutionally if it refuses to appropriate funds for\nPresident to can y out his enumerated constitutional responsibilities); Kate Stith, Congress\xe2\x80\x99 Power o f the Purse ,\n97 Yale L J . 1343, 1351 (1988).\n17 See also The President\'s Compliance with the \xe2\x80\x9cTimely Notification" Requirement o f Section 501(b) o f the\nNational Security Act, 10 Op. O.L.C. 159, 169-70 (1986) (\xe2\x80\x9c [WJhile Congress unquestionably possesses the power\nto make decisions as to the appropriation o f public funds, it may not attach conditions to Executive Branch appropriations that require the President to relinquish any o f his constitutional discretion in foreign affairs.\xe2\x80\x9d ).\n,8This limitation on legislative pow er has been acknowledged by members of Congress See O rrin Hatch, contribu\xc2\xad\ntion to symposium, What the Constitution Means by Executive Power, 43 U. Miami L. Rev. 197, 200-01 (1988)\n( \xe2\x80\x9c constitutional foreign policy functions may not be eliminated by a congressional refusal to appropriate funds.\nThe Congress may net, for example, deny the President funding to receive ambassadors, negotiate treaties, or deliver\nforeign policy addresses . . . . Congress oversteps its role when it undertakes to dictate the specific terms o f inter\xc2\xad\nnational relations.\xe2\x80\x9d ); Eli E. Nobleman, Financial Aspects o f Congressional Participation in Foreign Relations, 289\nAnnals Am. Acad. Pol. & Soc. Sci. 145, 150 (1953) (citing remarks o f Representative Darnel W ebster, objecting\non constitutional grounds in 1826 to appropriations rider that purported to attach instructions to United States dip\xc2\xad\nlomats).\n19See Edward S. Corwin, The President: Office and Powers 1787-1984, at 216 (5th rev. ed. 1984).\n\n197\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nthe French Republic by the reception of Mr. Genest. Mr. Madison\nhad exercised it by declining several years to receive, and by finally\nreceiving, Mr. Onis; and in this instance I thought the Executive\nought carefully to preserve entire the authority given him by the\nConstitution, and not weaken it by setting the precedent of making\neither House of Congress a party to an act which it was his exclu\xc2\xad\nsive right and duty to perform. [ 20]\nAccordingly, Congress may not attempt indirectly, through the use of its spend\xc2\xad\ning power, to control the exercise of the President\xe2\x80\x99s exclusive right to grant or\nwithhold political recognition. Section 609 is such an attempt; thus, it is an uncon\xc2\xad\nstitutional encroachment on the President\xe2\x80\x99s power.\nIV.\nBecause section 609 is, in our view, invalid, we regard it as being without\nlegal force or effect.21\nThe past practice of the executive branch demonstrates its refusal to comply\nwith unconstitutional spending conditions that trench on core Executive powers.\nParticularly pertinent in this regard is an opinion written in 1960 by Attorney\nGeneral William Rogers for President Eisenhower concerning such an unconstitu\xc2\xad\ntional condition.22\nAttorney General Rogers\xe2\x80\x99 opinion dealt with a provision of a statute that di\xc2\xad\nrected that certain expenses of a State Department office be charged to certain\nappropriations, provided that all documents relating to activities of that office were\nfurnished upon request to Congress. A related statute provided for termination\nof funds if all documents were not produced, unless the President certified that\nhe had forbidden the disclosure of the documents to protect the public interest.\nThe State Department refused to furnish a number of documents requested by\na House subcommittee, and the President certified that he had forbidden their\ndisclosure. The Comptroller General, interpreting the former statute as not incor\xc2\xad\nporating a \xe2\x80\x9c public interest\xe2\x80\x9d exception permitting the President to withhold the\ndocuments from Congress, directed that funds not be made available to liquidate\nobligations incurred from the following day forward. The Attorney General con\xc2\xad\ncluded that the statute should be construed to include a \xe2\x80\x9c public interest\xe2\x80\x9d excep\xc2\xad\ntion because, as applied under the circumstances, it would otherwise embody an\nunconstitutional condition. He based this conclusion in part on the reasoning that:\n20 Quoted in id. at 216-17.\n21 The invalidity o f section 609 does not, o f itself, undermine the validity o f the Act as a whole, or cause any\no f its other provisions to fail.\n22Mutual Security Program\xe2\x80\x94 Cutoff o f Funds from Office o f Inspector General and Comptroller, 41 Op. A tt\xe2\x80\x99y\nGen. 507 (1960) (construing the Mutual Security Act o f 1959, 73 Stat. 253).\n\n198\n\n\x0cSection 609 o f the FY 1996 Omnibus Appropriations Act\n\nthe Constitution does not permit any indirect encroachment by Con\xc2\xad\ngress upon this authority of the President through resort to condi\xc2\xad\ntions attached to appropriations such as are contended to be con\xc2\xad\ntained in . . .the act.23\nFurther, the Attorney General concluded that \xe2\x80\x9c the Comptroller General\xe2\x80\x99s view\nthat the proviso . . . has cut off funds under the circumstances disclosed here\nis an erroneous interpretation of the meaning of this statute,\xe2\x80\x9d and that \xe2\x80\x9c if this\nview of the Comptroller General as to the meaning of this statute is correct, the\nproviso is unconstitutional.\xe2\x80\x9d 24 He stated that, despite the Comptroller General\xe2\x80\x99s\nview that appropriated funds had been cut off, the funds \xe2\x80\x9c continue to be available\nas heretofore.\xe2\x80\x9d 25\nAccordingly, we conclude that funds elsewhere appropriated in the Act for State\nDepartment diplomatic activities abroad may lawfully be obligated or expended\nfor diplomatic relations with the Government of Vietnam if those funds are other\xc2\xad\nwise available for that purpose, without the President\xe2\x80\x99s having to certify that Viet\xc2\xad\nnam has met the conditions purportedly imposed by section 609.\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x9c Id. at 530.\n24 Id.\n23 Id. at 531.\n\n199\n\n\x0c'


b'Authority of the Nuclear Regulatory Commission to Collect\nAnnual Charges from Federal Agencies\nT h e N u clear R eg u latory C om m ission has statutory authority to collect annual charges from\nfed eral ag en cies th at hold licenses issued by the NRC.\n\nJuly 30, 1991\nM e m o r a n d u m O p in io n\n\nfo r th e\n\nG e n e r a l Co u n s e l\n\nN u c l e a r Re g u l a t o r y Co m m\n\nis s io n\n\nThis memorandum responds to your request for our opinion whether sec\xc2\xad\ntion 6101 o f the Omnibus Budget Reconciliation Act of 1990 (OBRA), Pub.\nL. No. 101-508, 104 Stat. 1388, 1388-298, authorizes the Nuclear Regula\xc2\xad\ntory Commission (\xe2\x80\x9cNRC\xe2\x80\x9d) to collect annual charges from federal agencies\nthat hold NRC licenses. We conclude that section 6101 of OBRA does\nauthorize the NRC to collect such charges.\nI.\n\nSection 6101(a) of OBRA requires that the NRC \xe2\x80\x9cshall annually assess\nand collect such fees and charges as are described in subsections (b) and\n(c).\xe2\x80\x9d Id. \xc2\xa7 6101(a)(1), 104 Stat. at 1388-298. Subsection (b) sets forth the\nuser fees that the NRC shall collect:\n(b) Fees for Service or Thing o f Value. \xe2\x80\x94 Pursuant to sec\xc2\xad\ntion 9701 of title 31, United States Code, any person who\nreceives a service or thing of value from the Commission shall\npay fees to cover the Commission\xe2\x80\x99s costs in providing any\nsuch service or thing of value.\nId. \xc2\xa7 6101(b), 104 Stat. at 1388-298 to 299. Section 9701 of title 31, United\n\nStates Code, authorizes federal agencies to collect fees for \xe2\x80\x9ceach service or\nthing of value provided by [the agency] to a person (except a person on\nofficial business o f the United States Government).\xe2\x80\x9d 31 U.S.C. \xc2\xa7 9701(a).\n74\n\n\x0cIt is settled law that federal agencies may not charge other federal agencies\nuser fees under section 9701,1 see 56 Comp. Gen. 275, 277 (1977), and we\nunderstand that you are not intending to do so.\nSubsection (c) of section 6101 sets forth the annual charges that the NRC\nis to collect:\n(c) Annual Charges. \xe2\x80\x94\n(1) Persons Subject to Charge. \xe2\x80\x94 Any licensee of the\nCommission may be required to pay, in addition to the fees\nset forth in subsection (b), an annual charge.\n(2) Aggregate Amount of Charges. \xe2\x80\x94 The aggregate\namount of the annual charge collected from all licensees shall\nequal an amount that approximates 100 percent of the budget\nauthority of the Commission in the fiscal year in which such\ncharge is collected, less any amount appropriated to the Com\xc2\xad\nmission from the Nuclear Waste Fund and the amount of fees\ncollected under subsection (b) in such fiscal year.\n(3) Amount Per Licensee. \xe2\x80\x94 The Commission shall es\xc2\xad\ntablish, by rule, a schedule of charges fairly and equitably\nallocating the aggregate amount of charges described in para\xc2\xad\ngraph (2) among licensees. To the maximum extent practicable,\nthe charges shall have a reasonable relationship to the cost of\nproviding regulatory services and may be based on the alloca\xc2\xad\ntion of the Commission\xe2\x80\x99s resources among licensees or classes\nof licensees.\nOBRA \xc2\xa7 6101(c), 104 Stat. at 1388-299. On April 12, 1991, the NRC\npublished a proposed rule that would establish annual charges pursuant to\nsection 6101(c). See 56 Fed. Reg. 14,870 (1991). In the proposed rule, the\nNRC stated its intention to levy annual charges on all licensees, including\nfederal agencies. Ten federal agencies submitted comments opposing the\nproposed rule on the grounds that the NRC should not impose annual charges\non other government agencies.2 You then requested a legal opinion from this\nOffice on the legality of imposing annual charges on federal agencies.3 We\n\n1 O f course, other statutes may authorize the collection of user fees from government agencies. See 42\nU.S.C. \xc2\xa7 2201(w) (authorizing the NRC to collect certain fees \xe2\x80\x9c from any other Government agency\xe2\x80\x9d ).\n! The ten agencies are the Departments of Commerce, Energy, Interior, and Veterans Affairs, the E nvi\xc2\xad\nronm ental Protection Agency, the National Aeronautics and Space Administration, the Defense N uclear\nAgency, and the m ilitary Departments of the Army, Navy and Air Force.\n5 You have agreed to be bound by our opinion. See Letter for J. Michael Luttig, Assistant Attorney\nGeneral, Office of Legal Counsel, from William C. Parler, General Counsel, Nuclear Regulatory C om \xc2\xad\nmission (May 20, 1991).\n\n75\n\n\x0crequested the views o f the ten interested agencies and all but one have re\xc2\xad\nsponded.4 Two agencies (Commerce and NASA) expressed the view that the\nNRC lacked legal authority to impose annual charges on them. Two agen\xc2\xad\ncies (EPA and Veterans Affairs) took no position on the legal issue. The\nDepartment of Defense, representing five of the interested agencies, con\xc2\xad\ncluded that the NRC could impose annual charges. We will refer to these\ncomments as appropriate in this memorandum.\n\nII.\nBy its terms, section 6101(c)(1) provides that \xe2\x80\x9c[a]ny licensee o f the Com\xc2\xad\nmission" may be required to pay an annual charge. The term \xe2\x80\x9clicensee of\nthe Commission\xe2\x80\x9d is not defined in section 6101 or elsewhere in OBRA.\nNevertheless, the structure o f the Atomic Energy Act of 1954 as a whole\nmakes clear that federal agencies are within the class of licensees. The Act\nrequires \xe2\x80\x9cany person\xe2\x80\x9d to obtain a license from the Commission5 in order to\nconduct activities regulated under the Act, 42 U.S.C. \xc2\xa72131, and the term\n\xe2\x80\x9cperson\xe2\x80\x9d is defined in section 11 (s) of the Act to include \xe2\x80\x9cGovernment\nagencfies] other than the Commission.\xe2\x80\x9d6 42 U.S.C. \xc2\xa7 2014(s). Additionally,\nthe Act expressly permits federal agencies authorized to engage in the pro\xc2\xad\nduction, marketing and distribution of electric energy to obtain commercial\nlicenses. See 42 U.S.C. \xc2\xa7 2020. Thus, because the NRC\xe2\x80\x99s regulatory au\xc2\xad\nthority clearly extends to the licensing of federal agencies, the term \xe2\x80\x9clicensee\no f the Commission\xe2\x80\x9d as used in OBRA refers to all licensees, including gov\xc2\xad\nernment agencies.\nThe conclusion that section 6101(c)(1) covers all licensees of the Com\xc2\xad\nmission is reinforced by the requirements of paragraphs (2) and (3) o f that\nsection. Paragraph (2) requires that the aggregate amount of the annual\ncharges collected from \xe2\x80\x9call licensees\xe2\x80\x9d approximate 100% of the Commission\xe2\x80\x99s\nbudget authority (less the amount of user fees collected and other specified\namounts). Paragraph (3) requires that, to the extent practicable, annual charges\nshall have a \xe2\x80\x9creasonable relationship\xe2\x80\x9d to the cost of providing regulatory\nservices to the particular licensee or class of licensees being charged. If the\nCommission were to exempt federal licensees, other licensees would have to\nbear costs not directly related to the cost of providing service to them.\n4 We requested that the Defense Nuclear Agency and the military departments consolidate their views\ninto a single subm ission from the Departm ent of Defense. The Department of Energy informed us that\nthe view s o f its one interested component. Naval Reactors, would also be incorporated into D efense\'s\nsubm ission. The D epartm ent of the Interior did not subm it any views.\n\xe2\x80\x99 The \xe2\x80\x9cCom m ission\xe2\x80\x9d referenced throughout the Atomic Energy Act is the Atomic Energy Commission,\nwhich has been abolished. See 42 U.S.C. \xc2\xa7 2014(f) (defining the \xe2\x80\x9cCommission"); 42 U.S.C. \xc2\xa7 5814(a)\n(abolishing the Com m ission). The functions of the Atomic Energy Commission were transferred to the\nN RC and the Energy Research and Developm ent Administration in the Department o f Energy. See 42\nU.S.C . \xc2\xa7 5 8 4 1 (0 , (g );4 2 U.S.C. \xc2\xa7 5814(b), (c). Because all o f the licensing functions are assigned to the\nNRC , see 42 U.S.C. \xc2\xa7 5841 (0 , (g), we will treat all references to the \xe2\x80\x9cCommission\xe2\x80\x9d in the Atomic Energy\nAct as references to the NRC.\n6 "G overnm ent agency\xe2\x80\x9d is broadly defined to include "any executive departm ent,. . . or other establish\xc2\xad\nm ent in the executive branch o f the Governm ent.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2014(1).\n\n76\n\n\x0cGiven the \xe2\x80\x9creasonable relationship\xe2\x80\x9d requirement, it would be anomalous to\nconstrue the statute so that the Commission is prohibited from setting the\ncharges based on a direct, one-to-one relationship to the costs of providing\nservices to a licensee or class of licensees.\nIn its response to our request for comments, the Department of Com\xc2\xad\nmerce argues that the dependent clause in section 6101(c)(1), \xe2\x80\x9cin addition to\nthe fees set forth in subsection (b),\xe2\x80\x9d limits the universe of licensees subject\nto the annual charge. Under Commerce\xe2\x80\x99s view, Congress intended that the\nannual charge be levied as an additional element to the user fees authorized\nunder section 6101(b) and 31 U.S.C. \xc2\xa7 9701. Thus, only those licensees that\nare subject to a user fee under 31 U.S.C. \xc2\xa7 9701, which excludes govern\xc2\xad\nment agencies, would be subject to the additional annual charge. We disagree.\nUnder the ordinary rules of English grammar, the dependent clause \xe2\x80\x9cin\naddition to\xe2\x80\x9d cannot be construed as modifying the subject of the sentence,\n\xe2\x80\x9c [a]ny licensee of the Commission.\xe2\x80\x9d Rather, the clause modifies \xe2\x80\x9cto pay . . .\nan annual charge,\xe2\x80\x9d making explicit that a licensee paying user fees under\nsection 6101(b) must pay the annual charge in addition to the user fees and\nmay not offset the expense of the user fees against the annual charge. A\nlicensee that pays an annual charge but, for whatever reason, pays no user\nfees under section 6101(b) can still be described as paying its annual charge\n\xe2\x80\x9cin addition to the fees set forth in subsection (b).\xe2\x80\x9d The annual fee is \xe2\x80\x9cin\naddition to\xe2\x80\x9d the licensee\xe2\x80\x99s user fee liability, which, in the case of federal\nagencies, happens to be zero.\nWhile the legislative history of OBRA does not expressly address the\nNRC\xe2\x80\x99s authority to assess annual charges against federal agencies, two state\xc2\xad\nments in the legislative history tend to confirm the plain meaning of section\n6101(c). First, the Conference Report states that section 6101(c) authorizes\nthe NRC \xe2\x80\x9cto assess annual charges against all of its licensees.\xe2\x80\x9d H.R. Conf.\nRep. No. 964, 101st Cong., 2d Sess. 961 (1990) (emphasis added). This\nstatement is perhaps even more explicit than the text of section 6101(c)(1).\nSecond, in 1986, when the first provision that authorized the NRC to collect\nannual charges was enacted into law, see the Consolidated Omnibus Budget\nReconciliation Act of 1985, Pub. L. No. 99-272, \xc2\xa7 7601, 100 Stat. 82, 146\n(1986), the conference managers explained that the annual charges were\n\xe2\x80\x9cintended . . . to establish a standard separate and d istin ct from the\nCommission\xe2\x80\x99s existing authority under [31 U.S.C. \xc2\xa7 9701].\xe2\x80\x9d 132 Cong. Rec.\n4887 (1986) (emphasis added) (adoption of statement in Senate); id. at 3797\n(same in House). See also H.R. Conf. Rep. No. 964, at 961 (reaffirming the\nstatement of the managers). This statement militates against construing the\nannual charges provision consistent with the limitations of 31 U.S.C. \xc2\xa7 9701.\n\nIII.\nBased on a plain meaning of the text of section 6101(c) of OBRA, we\nconclude that the NRC can impose annual charges on government agencies.\n\n77\n\n\x0cBoth agencies that argued against the legality o f the NRC\xe2\x80\x99s action, however,\nargued that such a result should be rejected in the absence of an explicit\nstatem ent o f Congressional intent. Assuming arguendo that the plain mean\xc2\xad\ning of the text does not provide such a statement, we have searched to see if\nany background principle of law or canon of construction would require a\nclear statement of Congressional intention. We have found none.\nThe Department of Commerce argues that the NRC proposal violates\nestablished fiscal law. Contrary to Commerce\xe2\x80\x99s views, agencies that pay the\nannual charges out of their appropriations will not violate 31 U.S.C. \xc2\xa7 1301(a),\nwhich requires that appropriated funds be applied only to the objects for\nwhich the appropriations were made. An agency that holds an NRC license\nas part o f its mission already expends appropriations in obtaining the license\n(e.g., the salary of the employee who fills out the application for the li\xc2\xad\ncense). Paying an annual charge will be just an additional expenditure.\nNor does 31 U.S.C. \xc2\xa7 1532, which requires authorization by law to with\xc2\xad\ndraw funds from the appropriation account and credit them to another, preclude\nannual license charges to federal agencies where those charges are deposited\ninto the general fund of the Treasury. The annual charges collected by the\nNRC are not credited to an \xe2\x80\x9cappropriation account\xe2\x80\x9d but are deposited into\nthe general fund of the Treasury pursuant to the miscellaneous receipts stat\xc2\xad\nute, 31 U.S.C. \xc2\xa7 3302(b). Funds deposited into the general fund of the\nTreasury are not appropriated funds and are not available for expenditure.\nWe have also determined that the so-called \xe2\x80\x9canti-augmentation\xe2\x80\x9d principle\nis inapplicable in these circumstances. The \xe2\x80\x9canti-augmentation\xe2\x80\x9d principle is\n\xe2\x80\x9ca general rule that an agency may not augment its appropriations from\nou tside sources without specific statutory authority.\xe2\x80\x9d Principles o f Federal\nA ppropriations Law 5-62 (GAO 1982) (emphasis added). The anti-augmen\xc2\xad\ntatio n p rin c ip le prohibits augm entation from both governm ent and\nnon-government sources. This principle is not applicable here because sec\xc2\xad\ntion 6101(c) provides express statutory authority for the NRC to recover\n100% o f its budget authority through user fees and annual charges from\noutside sources. Moreover, the user fees and annual charges will not aug\xc2\xad\nm ent the N R C \xe2\x80\x99s budget because, as previously mentioned, they will be\ndeposited into the general fund of the Treasury.7\n\n7 We note in passing that it is not unprecedented for one government agency to charge another for goods\nor services, or even to impose fines on another, even though the authorizing statutory section does not\nexpressly reference governm ent agencies. See, e.g., FBI Authority To Charge User Fees For Record\nC heck Services, 15 Op. O.L.C. 18 (1991) (concluding that Pub. L. No. 101-162, 103 Stat. 988, 998-99\n(1989) authorizes the FBI to collect user fees from the State Department to process fingerprint identifi\xc2\xad\ncation records and name checks); Memorandum for J. Paul McGrath, Assistant Attorney General, Civil\nD ivision, from Ralph W. Tarr, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Recov\xc2\xad\nery o f Costs o f Representing Copyright R oyalty Tribunal in Distribution Disputes Pursuant to 17 U.S.C.\n\xc2\xa7 I I I (July 1, 1983) (Civil Division may charge the Copyright Royalty Tribunal for the provision of\ncertain legal services); Constitutionality o f N uclear Regulatory Commission\'s Im position o f Civil Pen\xc2\xad\na ltie s on the A ir Force, 13 Op. O.L.C. 131 (1989) (concluding that NRC could impose penalties on\nex ecu tiv e agency).\n\n78\n\n\x0cCONCLUSION\nWe conclude for the reasons stated that section 6101(c) of OBRA autho\xc2\xad\nrizes the NRC to collect annual charges from other government agencies.\nJOHN O. MCGINNIS\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n79\n\n\x0c'


b"October 1, 1979\n\n79-73\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL OFFICE OF PERSONNEL\nMANAGEMENT\nFederal Computer Systems\xe2\x80\x94Access by Contractor\nEmployees\xe2\x80\x94Authority to Screen for Security\nPurposes (31 U.S.C. \xc2\xa7 18a; 5 U.S.C. \xc2\xa7\xc2\xa7 301, 552a;\n44 U.S.C. \xc2\xa7 3102)\xe2\x80\x94Due Process\n\nYou have asked for our views concerning the authority o f executive\nbranch agencies to implement Transmittal M em orandum No. 1 to Office\no f Management and Budget (OMB) Circular No. A-71, dated July 27,\n1978. The Transmittal M em orandum , among other things, requires Fed\xc2\xad\neral agencies to establish personnel security policies for screening all in\xc2\xad\ndividuals participating in the design, operation, or maintenance o f Federal\ncom puter systems or having access to data in Federal com puter systems.\nYou have asked us to confine our opinion to the question o f an agency\xe2\x80\x99s\nauthority to investigate and screen non-Federal employees before granting\nthem access to unclassified inform ation in Federal com puter systems.\nWe conclude that Federal agencies have the authority to implement the\nTransmittal M emorandum by screening contractor employees' in any\nreasonable m anner, but that such implementation must be consistent with\ndue process o f law.\n\n'A lthough your request referred to the authority to investigate non-Federal personnel, in\xc2\xad\ncluding employees o f contractors and prospective contractors, we are unaware o f any nonFederal employees who would come within the purview o f the Transm ittal M em orandum\nwho would not be contractor personnel. For example, the T ransm ittal M em orandum says (at\np. 3) that \xe2\x80\x9c [tjhese policies should be established for government and contractor personnel.\xe2\x80\x9d\n\n384\n\n\x0cAuthority to Screen Non-Federal Personnel\nThe Transmittal M em orandum was intended to promulgate policy and\ndefine the responsibilities o f various executive branch agencies for com \xc2\xad\nputer security. This function appears to be within the broad authority o f\nthe Director o f the Office o f M anagement and Budget to \xe2\x80\x9c develop im\xc2\xad\nproved plans for the organization, coordination, arid management o f the\nexecutive branch o f the Government with a view to efficient and\neconomical service.\xe2\x80\x9d 31 U ,S.C . \xc2\xa7 18a (1976).\nThe mem orandum makes it the responsibility of the head o f each execu\xc2\xad\ntive agency to assure an adequate level o f security for all agency com puter\ndata whether processed in-house or commercially. In the area o f personnel\nsecurity, it requires that each agency at a minimum\xe2\x80\x94\n[Establish personnel security policies for screening all in\xc2\xad\ndividuals participating in the design operation or m aintenance of\nFederal com puter systems or having access to data in Federal\ncom puter systems. The level o f screening required by these\npolicies should vary from minimal checks to full background in\xc2\xad\nvestigations commensurate with the sensitivity o f the data to be\nhandled and the risk and m agnitude o f loss or harm that could be\ncaused by the individual. These policies should be established for\ngovernment and contractor personnel. Personnel security\npolicies for Federal employees should be consistent with policies\nissued by the Civil Service Commission, [p. 3.]\nIt should be noted that the m em orandum contemplates a range o f screen\xc2\xad\ning procedures varying from minimal checks to full background investiga\xc2\xad\ntions depending upon the risk o f harm and the sensitivity o f the data. It\nmay be that adequate security can be assured in many cases without an ac\xc2\xad\ntual investigation o f contractor employees. For example, in some instances\nsubmission o f inform ation or certification by the employer may be suffi\xc2\xad\ncient. In other cases it may be advisable to obtain verification o f an\nemployee\xe2\x80\x99s arrest record, or lack thereof. There will, no doubt, also be in\xc2\xad\nstances where a full background investigation o f a contractor is war\xc2\xad\nranted. The memorandum directs the head o f each agency to exercise\ndiscretion in choosing a screening m ethod to fit the circumstances o f par\xc2\xad\nticular data-processing contracts.\nWe have found three statutory sources o f agency authority to take ac\xc2\xad\ntion to assure the security o f agency records. The head o f every executive\nor military departm ent has the authority to \xe2\x80\x9c prescribe regulations for the\ngovernment o f his departm ent, the conduct o f its employees, the distribu\xc2\xad\ntion and performance o f its business, and the custody, use, and preserva\xc2\xad\ntion o f its records, papers and property.\xe2\x80\x9d 5 U .S.C . \xc2\xa7 301 (1977). Although\nthat section specifically notes that it does not authorize the withholding o f\ninformation from the public, it does appear to authorize regulations o f the\nsort contem plated by OMB to assure the security o f data-processing rec\xc2\xad\nords and property.\n385\n\n\x0cThe Privacy Act o f 1974 gives Federal agencies a more specific mandate.\nT hat Act was passed in response to a congressional finding that\n[t]he increasing use o f com puters and sophisticated inform ation\ntechnology, while essential to the efficient operations o f the\nGovernm ent, has greatly magnified the harm to individual\nprivacy that can occur from any collection, m aintenance, use, or\ndissemination o f personal inform ation * * *. [Pub. L. 93-579,\n\xc2\xa7 2(a)(2), quoted at 5 U .S.C . \xc2\xa7 552a note.]\nIn order to prevent such harm to individual privacy, the Privacy Act re\xc2\xad\nquires that each agency establish (1) rules o f conduct for persons involved in\nthe design, operation, or m aintenance o f any system o f records; and (2) ap\xc2\xad\npropriate administrative, technical, and physical safeguards to ensure the\nsecurity and confidentiality o f records. 5 U .S.C . \xc2\xa7 552a(e) (9) and (10).\nA lthough the Privacy Act applies only to systems o f records that contain in\xc2\xad\nform ation about individuals,2 5 U .S.C . \xc2\xa7 552a(a), the Act does provide that\nan agency, consistent with its authority, shall cause the requirements o f the\nAct to be applied to government contractors who operate a system of\nrecords to accomplish an agency function. M oreover, the employees o f a\ncontractor are to be considered employees o f the agency for purposes o f\ncriminal penalties under the Act. 5 U .S.C . \xc2\xa7 552a(m).\nThe head o f each Federal agency is also required by 44 U .S.C . \xc2\xa7 3102 to\nprovide for \xe2\x80\x9c effective controls over the creation and over the maintenance\nand use o f records in the conduct o f current business\xe2\x80\x9d and in cooperation\nwith the A dm inistrator o f General Services to \xe2\x80\x9c prom ote the maintenance\nand security o f records deemed appropriate for preservation.\xe2\x80\x9d 3 To the ex\xc2\xad\ntent that com puter records are involved in the current conduct o f agency\nbusiness or deemed appropriate for preservation, this section would pro\xc2\xad\nvide further authority for the imposition o f controls on access to com puter\ninform ation.\nDue Process\nAlthough we conclude that the head o f a Federal agency has authority\nto screen contractor employees before granting them access to Federal\ndata-processing systems, there are legal and constitutional limits to the ex\xc2\xad\nercise o f any authority. We will discuss the application o f due process to\nthis situation because we understand that some agencies have expressed\nconcern about Greene v. McElroy, 360 U.S. 474 (1959). In that case the\nSupreme C ourt found that the authority o f the Departm ent o f Defense to\nscreen contractor employees for work on classified projects was not\nspecific enough to permit action that would deprive a person o f his or her\nability to pursue his or her chosen profession without the safeguards o f\nconfrontation and cross-examination.\n\n:The Act defines \xe2\x80\x9c individual\xe2\x80\x9d as \xe2\x80\x9c a citizen o f the U nited States or an alien lawfully a d \xc2\xad\nmitted for perm anent residence.\xe2\x80\x9d 5 U .S.C . \xc2\xa7 552a(a)(2).\n\xe2\x80\x99The scope o f the term \xe2\x80\x9c records\xe2\x80\x9d as used in this section can be found in 44 U .S.C . \xc2\xa7 3101.\nThat definition appears to be sufficiently broad to encom pass data-processing materials.\n\n386\n\n\x0cThe plaintiff in Greene was an aeronautical engineer and general\nmanager o f a corporation that had defense contracts that required it to ex\xc2\xad\nclude from its premises persons not having security clearances. Although\nthe plaintiff had been granted security clearances on previous occasions,\nhe was eventually deprived o f his clearance on the basis o f alleged Com \xc2\xad\nmunist associations and sympathies. He was notified o f specific written\nallegations and was permitted to present evidence to refute the allegations\nat several hearings concerning the revocation o f his clearance. However,\nhe was denied access to the source o f much of the inform ation against him\nand was not permitted to confront or cross-examine witnesses against him.\nAs a result o f the loss o f his clearance, he resigned from his position and\nwas effectively barred from the practice o f his profession. Proceeding very\ncautiously, the Supreme C ourt held that in authorizing or acquiescing in\nDepartment o f Defense procedures to restrict dissemination o f classified\ninformation, neither the President nor Congress intended to dispense with\nsafeguards o f confrontation or cross-examination. Accordingly, it in\xc2\xad\nvalidated the Defense Departm ent procedures as beyond the scope o f the\nagency\xe2\x80\x99s authority.\nIn a subsequent case, Cafeteria & Restaurant Workers Union v.\nMcElroy, 367 U.S. 886 (1961), the Supreme C ourt distinguished and\nlimited its holding in Greene. Cafeteria Workers involved a cook who was\nbarred from her jo b at a naval facility upon failure to meet security re\xc2\xad\nquirements. Noting that the due process issue had not been resolved in\nGreene, the C ourt held that the Due Process Clause will be involved if an\nagency\xe2\x80\x99s action in excluding certain contractor employees is likely to result\nin the foreclosure o f other employment for them in the data-processing\nfield. We would suggest that in any such case the agency general counsel\nbe consulted for more particular guidance concerning the application o f\ndue process principles.4\nL eon U\n\nlm an\n\nDeputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x98In this connection, see, Doe v. United States Civil Service Commission, 483 F. Supp. 539\n(D .S.D . N.Y. 1980).\n\n387\n\n\x0c"