b'Constitutionality o f Section 7 (b )(3 )\no f the Emergency Veterans\xe2\x80\x99 Job Training Act of 1983\nThe statute\xe2\x80\x99s exclusion o f religious activities from the ambit o f activities for which the\nVeterans\xe2\x80\x99 Administration may fund training does not violate the Free Exercise Clause.\nThe statute\xe2\x80\x99s inclusion in the program o f institutions that are religiously-affiliated but not\npervasively sectarian does not violate the Establishment Clause. The inclusion o f perva\xc2\xad\nsively sectarian institutions is also constitutional, so long as the selection o f the institu\xc2\xad\ntion is the result o f the genuinely independent and private ch oice o f the veteran.\nThe Veterans\xe2\x80\x99 Administration may constitutionally prescribe by regulation criteria to distin\xc2\xad\nguish between religious and nonreligious activities\nGeneral considerations that may aid in promulgating regulations to distinguish betw een\nreligious and nonreligious activities include, at a minimum, (1) whether the activity is\nalso traditionally perform ed in nonreligious organizations and (2) the degree to which\nthe activity is informed and affected by the religious tenets o f the organization.\n\nJanuary 23, 1989\nM\n\nem orandum\n\nV\n\nO\n\np in io n\n\neterans\xe2\x80\x99\n\nfor th e\n\nA\n\nG\n\neneral\n\nC\n\nounsel\n\nd m in is t r a t io n\n\nThis memorandum responds to your request that w e assess the consti\xc2\xad\ntutionality o f section 7 (b )(3 ) o f the Emergency Veterans\xe2\x80\x99 Job Training A ct\no f 1983 ( \xe2\x80\x9cVJTA\xe2\x80\x9d), 29 U.S.C. \xc2\xa7 1721 note (Supp. Ill 1985).1 That section\nexcludes from a proposed program o f job training \xe2\x80\x9cemployment which\ninvolves political or religious activities.\xe2\x80\x9d Specifically, you have asked\nwhether \xe2\x80\x9cCongress, under the Free Exercise Clause o f the Constitution,\nas a condition o f authorization o f payments to employers under the VJTA\nprogram, [may] require the VA to determine that the veteran\xe2\x80\x99s em ploy\xc2\xad\nment does not involve religious activities.\xe2\x80\x9d Memorandum at 7. Assuming\nthe answer is yes \xe2\x80\x94 that Congress may exclude veterans seeking em ploy\xc2\xad\nment performing religious activities from the program \xe2\x80\x94 you request our\nview about whether \xe2\x80\x9cthe VA constitutionally may establish, by regulation,\ncriteria fo r ascertaining which activities o f an em ployer are religious\nactivities similar to those enunciated by the low er court in Amos v.\nCorporation of Presiding Bishop, 594 E Supp. 791 (D. Utah 1984), rev\xe2\x80\x99d\n1\n\nSee Memorandum for Charles J Cooper, Assistant Attorney General, Office o f LegaJ Counsel, from\n\nDonald L Ivers, General Counsel, Veterans\xe2\x80\x99 Administration ( \xe2\x80\x9cVA\xe2\x80\x9d) (O ct 1, 1987) ( \xe2\x80\x9cMemorandum\xe2\x80\x9d)\n\n31\n\n\x0con other grounds, 483 U.S. 327 (1987), and/or those form ally applied in\nthe C E TA program .\xe2\x80\x9d Id. I f not, you wish us to advise you as to which \xe2\x80\x9ctype\no f criteria would be constitutionally permissible.\xe2\x80\x9d Id. at 7-8.2 We conclude\nthat Congress m ay refuse to pay to train veterans to perform religious\nactivities without violating the Free Exercise Clause, because the federal\ngovernm ent is under no obligation to subsidize the exercise o f constitu\xc2\xad\ntional rights. We then address whether the Establishment Clause pro\xc2\xad\nhibits religiously-affiliated institutions and a narrower class o f religious\ninstitutions labelled \xe2\x80\x9cpervasively sectarian\xe2\x80\x9d by the Supreme Court from\nparticipating in the VJTA program. We conclude that both religiouslyaffiliated and pervasively sectarian institutions may participate in the\nprogram and may train veterans fo r nonreligious activities. Finally, w e\nconclude that the VA may constitutionally fashion criteria to distinguish\nbetw een religious and nonreligious activities and w e then set forth gen\xc2\xad\neral considerations that may aid in promulgating regulations to distin\xc2\xad\nguish betw een such activities.\n\nI. The Emergency Veterans\xe2\x80\x99 Job Training Act of 1983\nThe VJTA establishes a program \xe2\x80\x9cdefraying the costs o f necessary\ntraining\xe2\x80\x9d o f eligible veterans fo r \xe2\x80\x9cstable and permanent positions that\ninvolve significant training.\xe2\x80\x9d Section 4(a). Any veteran from the Korean\ncon flict or the Vietnam era w h o \xe2\x80\x9cis unemployed at the time o f applying\xe2\x80\x9d\no r w ho has \xe2\x80\x9cbeen unemployed fo r at least 10 o f the 15 w eeks immediate\xc2\xad\nly preceding the date o f [his] application\xe2\x80\x9d is eligible fo r participation in\nthe program. Id. \xc2\xa7 5 (a )(1 )(A ) and (B ). An eligible veteran submits an\napplication to the Adm inistrator supporting his eligibility. I f the\nAdm inistrator approves the application, the veteran is given a \xe2\x80\x9ccertificate\no f that veteran\xe2\x80\x99s eligibility fo r presentation to an em ployer offering a pro\xc2\xad\ngram o f jo b training under this Act.\xe2\x80\x9d Id. \xc2\xa7 5 (b )(3 )(A ). The veteran takes\nthat certificate to an employer o f his choice whose job training program\nhas been approved by the Administrator as satisfying certain criteria. The\nem ployer can then be reimbursed directly with government funds for\none-half o f the w ages it pays to the veteran up to $10,000. Id. \xc2\xa7 8(a)(2).\nAny em ployer program o f jo b training meeting the statutory criteria is\nto be approved fo r participation in the program. Those criteria require,\nam ong other things, that the em ployer plan to employ the veteran in the\n\n2 You also asked us to consider the implications o f a determination that the Free Exercise Clause bars\nCongress from excluding religious activities from the program. In that event you sought our advice\nw hether the VA could \xe2\x80\x9cdisregard so much o f section 7 (b )(3 ) o f the VJTA as bars approval o f programs o f\njo b training for em ployment involving religious activities and make direct payments to employers with\xc2\xad\nout being in violation o f the prohibitions o f the first amendment to the Constitution regarding establish\xc2\xad\nment o f a religion.\xe2\x80\x9d Memorandum at 7 Because w e conclude that Congress m ay constitutionally exclude\ntraining fo r em ploym ent performing religious activities from the program, w e do not address this ques\xc2\xad\ntion in precisely this context.\n\n32\n\n\x0cposition fo r which he is being trained; that the wages paid to the veteran\ncannot be less than the wages paid to \xe2\x80\x9cother employees participating in a\ncomparable program o f job training\xe2\x80\x9d; and that employment o f the veter\xc2\xad\nan under the program cannot result in the \xe2\x80\x9cdisplacement o f currently\nemployed workers.\xe2\x80\x9d Id. \xc2\xa7 7 (d )(2 ) and (3 )(A ). Excluded from considera\xc2\xad\ntion are programs o f jo b training for \xe2\x80\x9cseasonal, intermittent, or temporary\njobs,\xe2\x80\x9d for em ployment where commissions are the primary source o f\nincome, and fo r employment in the Federal Government. Id. \xc2\xa7 7(b )(1 ).\nAlso excluded are those programs training \xe2\x80\x9cfo r employment which\ninvolves political or religious activities.\xe2\x80\x9d Id. \xc2\xa7 7 (b )(3 ).3 The latter restric\xc2\xad\ntion, by intentionally excluding \xe2\x80\x9creligious activities,\xe2\x80\x9d gives rise to your\nquestion whether such \xe2\x80\x9cdiscrimination\xe2\x80\x9d violates the Free Exercise Clause\no f the First Amendment.\n\nII. The Free Exercise Clause of the First Amendment\nWe believe that Congress\xe2\x80\x99 decision to exclude religious activities from\nthose it w ill fund under its job training program fo r veterans does not vio \xc2\xad\nlate the Free Exercise Clause fo r tw o related reasons. As a matter o f orig\xc2\xad\ninal understanding (an understanding which is reflected in recent\nSupreme Court decisions), the Free Exercise Clause is aimed primarily at\nprohibitory laws forbidding or preventing the practice o f religion.\nCongress\xe2\x80\x99 refusal to fund religious activities does not constitute such a\ndirect prohibition. M ore generally, it is now well established that the gov\xc2\xad\nernment does not unconstitutionally circumscribe an individual\xe2\x80\x99s exer\xc2\xad\ncise o f a constitutional right m erely by refusing to pay fo r that exercise.\nWhile the Supreme Court held in Sherbert v. Vemer, 374 U.S. 398 (1963),\nthat denying a government benefit to an individual on account o f his exer\xc2\xad\ncise o f religion is unconstitutional, it has also made clear that refusing to\nfund religious activities does not violate the Free Exercise Clause.\nAccordingly, Congress\xe2\x80\x99 decision not to subsidize the training o f veterans\nto perform religious activities does not violate the Free Exercise Clause.\nThe First Amendment provides:\nCongress shall make no law respecting an establishment o f\nreligion, or prohibiting the free exercise thereof; or abridg\xc2\xad\ning the freedom o f speech, or o f the press; or the right o f\nthe people peaceably to assemble, and to petition the\nGovernment fo r a redress o f grievances.\nU.S. Const, amend. I.\n3\n\nNothing in the legislative history addresses the issue o f why Congress chose to exclude religious\n\nactivities from the VJTA program.\n\n33\n\n\x0cFirst, it should be noted that only laws \xe2\x80\x9cprohibiting\xe2\x80\x9d the free exercise\no f religion are enjoined, and not those \xe2\x80\x9crespecting\xe2\x80\x9d or \xe2\x80\x9cabridging\xe2\x80\x9d it. This\nis a som ew hat narrower prescription. \xe2\x80\x9cProhibit\xe2\x80\x9d unequivocally means,\nand meant at the time o f the founding, \xe2\x80\x9c ft]o forbid; to interdict by author\xc2\xad\nity ... [t]o debar; to hinder.\xe2\x80\x9d Samuel Johnson, A Dictionary o f the\nEnglish Language (1755). See Noah Webster, American Dictionary of\nthe English Language (1828). \xe2\x80\x9cA bridge\xe2\x80\x9d can mean to \xe2\x80\x9ccontract, to dimin\xc2\xad\nish, to cut short\xe2\x80\x9d o r it can mean \xe2\x80\x9c [t]o deprive of; in which sense it is fo l\xc2\xad\nlo w ed by the particle from, o r of, preceding the thing taken away.\xe2\x80\x9d\nSamuel Johnson, A Dictionary of the English Language (1755) (empha\xc2\xad\nsis in original). The word \xe2\x80\x9cabridging\xe2\x80\x9d as used in the First Amendment is\nnot fo llo w e d by the \xe2\x80\x9cparticle from or of.\xe2\x80\x9d A s the Supreme Court has rec\xc2\xad\nognized, by using the word \xe2\x80\x9cprohibiting\xe2\x80\x9d in the Free Exercise Clause and\n\xe2\x80\x9cabridging\xe2\x80\x9d elsew here in the First Amendment, the Framers w ere plac\xc2\xad\ning different lim its on Congress\xe2\x80\x99 authority to enact different types o f\nlaws. See Lyng v. Northwest Indian Cemetery Protective A ss\xe2\x80\x99n, 485 U.S.\n439, 451 (1988) ( \xe2\x80\x9cThe crucial w ord in the constitutional text is \xe2\x80\x98prohibit\n....\xe2\x80\x99\xe2\x80\x9d). This language, when read in historical context, leads to the con\xc2\xad\nclusion that in drafting the Free Exercise Clause the Framers w ere\nenjoining prim arily prohibitory laws forbidding or preventing the prac\xc2\xad\ntice o f religion.\nM oreover, the history of the Free Exercise Clause suggests that it was\nmeant to er\\join prohibitory laws.4 A t the time the Constitution was draft\xc2\xad\ned, as the Court has put it, \xe2\x80\x9cCatholics found themselves hounded and pro\xc2\xad\nscribed because o f their faith; Quakers w ho follow ed their conscience\nw ent to jail; Baptists were peculiarly obnoxious to certain dominant\nProtestant sects; men and wom en o f varied faiths w ho happened to be in\na m inority in a particular locality w ere persecuted because they stead\xc2\xad\nfastly persisted in worshipping God only as their ow n consciences dic\xc2\xad\ntated.\xe2\x80\x9d Everson v. Board of Educ., 330 U.S. 1, 10 (1947) (footn ote omit\xc2\xad\nted). The abhorrence o f this sort o f conduct gave rise to the religion\n\n4 Examples o f prohibitory laws are those mandating attendance at approved services, expelling reli\xc2\xad\ngious nonconformists, requiring support fo r the established church, and imprisoning those preaching\nunpopular doctrines See Chester James Antieau et a i, Freedom f r o m Federal Establishm ent 16-29\n(1964).\n5This conclusion is supported by the origins o f the clause. In explaining the religion clauses, the Court\nhas often looked to Thom as Jefferson\xe2\x80\x99s Virginia Bill for Religious Liberty as an earlier statement o f the\nideas em bodied within them McGowan v. M aryland, 366 U.S. 420, 437 (1961); Everson, 330 U.S. at 1213, Reynolds v. U n ited States, 98 U.S. 145, 163-64 (1878). The Bill for Religious Liberty provided in part\nThat no man shall be compelled to frequent or support any religious worship, place, or min\xc2\xad\nistry whatsoever, nor shall be enforced, restrained, molested o r burthened in his body or\ngoods, nor shall otherwise suffer on account o f his religious opinions or belief] ]\nA c t for Establishing Religious Freedom, ch. XXXIV, 1823 Va. Acts 86 (H ening) (emphasis added) quoted\ni n Evei\'son, 330 U.S. at 13 Similarly, the principal sponsor o f the First Amendment, James Madison, said\nits purpose was to ensure \xe2\x80\x9cthat Congress should not establish a religion, and enforce the legal observa\xc2\xad\ntion o f it by law, nor com pel men to worship God in any manner contrary to their conscience.\xe2\x80\x9d 1 Annals\no f Cong 758 (Joseph Gales edM 1789)\n\n34\n\n\x0cclauses o f the First Amendment. Bowen v. Roy, 476 U.S. 693, 703 (1986)\n(opinion o f Burger, C.J., joined by Pow ell and Rehnquist, JJ.).5\nThus, the origins, the history and the language suggest that the First\nAmendment er\\joins only relatively direct prohibitions o f the free exer\xc2\xad\ncise o f religion.6 The Court\xe2\x80\x99s recent decisions reflect this interpretation.\nSee, e.g., Lyng, 485 U.S. at 451, (quoting Sherbert, 374 U.S. at 412\n(Douglas, J., concurring)) ( \xe2\x80\x98\xe2\x80\x9c the Free Exercise Clause is written in terms\no f what the government cannot do to the individual, not in terms o f what\nthe individual can exact from the government\xe2\x80\x99\xe2\x80\x9d); Bowen, 476 U.S. at 706\n(plurality opinion) ( \xe2\x80\x9c [GJovemment regulation that indirectly and inciden\xc2\xad\ntally calls for a choice between securing a governmental benefit and\nadherence to religious beliefs is wholly different from governmental\naction or legislation that criminalizes religiously inspired activity or\ninescapably compels conduct that some find objectionable fo r religious\nreasons.\xe2\x80\x9d).\nThe constitutionality o f Congress\xe2\x80\x99 decision not to subsidize the training\no f veterans to perform religious activities is also apparent from cases that\naddress generally the validity o f refusing to subsidize constitutional\nrights. The Court has made plain that the government does not \xe2\x80\x9cpenalize\xe2\x80\x9d\na decision to exercise a constitutional right simply by refusing to pay for\nit. Two cases most clearly elucidate this distinction between a refusal to\nsubsidize constitutionally-protected activity and an unconstitutional con\xc2\xad\ndition. In Maher v. Roe, 432 U.S. 464 (1977), and Harris v. McRae, 448\nU.S. 297 (1980), the Court faced challenges to government decisions not\nto fund abortions. The Court held that notwithstanding the judiciallyarticulated constitutional right to an abortion under Roe v. Wade, 410 U.S.\n113 (1973), neither the state nor the federal government had an obligation\nto fund abortions \xe2\x80\x94 even those that w ere \xe2\x80\x9ctherapeutic.\xe2\x80\x9d\nThe Harris Court specifically m et and rejected the argument that\nSherbert made mandatory the funding o f the exercise o f a constitutional\ncThat the government has in place a general program for jo b training for veterans does not change the\nnature o f the prohibition from an indirect to a direct one. For example, the Court held in Johnson v\nRobison, 415 U S 361 (1974), that denial o f special veterans\xe2\x80\x99 benefits to a conscientious objector was\nconstitutionally permissible. There, a conscientious objector who had performed alternative civilian ser\xc2\xad\nvice challenged the federal funding scheme granting educational benefits only to veterans w ho had\nserved in active duty. He argued that this denial o f benefits \xe2\x80\x9cinterferes with his free exercise o f religion\nby increasing the price he must pay fo r adherence to his religious beliefs \xe2\x80\x9d Id at 383. The Court rejected\nthis argument, sayingThe withholding o f educational benefits involves only an incidental burden upon appellee\xe2\x80\x99s\nfree exercise o f religion \xe2\x80\x94 if, indeed, any burden exists at all\n\nAppellee and his class w ere\n\nnot included in this class o f beneficiaries, not because o f any legislative design to interfere\nwith their free exercise o f religion, but because to do so would not rationally prom ote the\nA ct\xe2\x80\x99s purposes . [T]he Government\xe2\x80\x99s substantial interest in raising and supporting armies,\nArt I, \xc2\xa7 8, is o f \xe2\x80\x9ca kind and w eight\xe2\x80\x9d clearly sufficient to sustain the challenged legislation, for\nthe burden upon appellee\xe2\x80\x99s free exercise o f religion \xe2\x80\x94 the denial o f the econom ic value o f\nveterans\xe2\x80\x99 educational benefits under the Act \xe2\x80\x94 is not nearly o f the same order or magnitude\nas the infringement upon free exercise o f religion suffered by petitioners in Gillette\nId. at 385-86 (citations and footnote om itted)\n\n35\n\n\x0cright. In Sherbert, the Supreme Court held that a statute making ineligible\nfo r unemployment benefits an em ployee w ho had been forced to leave\nher jo b because o f religious reasons violated the Free Exercise Clause.\nTh e H arris Court said:\nThe appellees argue that the Hyde Amendment is unconsti\xc2\xad\ntutional because it \xe2\x80\x9cpenalizes\xe2\x80\x9d the exercise o f a wom an\xe2\x80\x99s\nch oice to terminate a pregnancy by [an] abortion. In Maher,\nthe Court found only a \xe2\x80\x9csemantic difference\xe2\x80\x9d between the\nargument that Connecticut\xe2\x80\x99s refusal to subsidize non-therapeutic abortions \xe2\x80\x9cunduly interfere[d]\xe2\x80\x9d with the exercise o f\nthe constitutional liberty recognized in Wade and the argu\xc2\xad\nm ent that it \xe2\x80\x9cpenalized\xe2\x80\x9d the exercise o f that liberty. 432\nU.S., at 474, n.8. And, regardless o f how the claim was char\xc2\xad\nacterized, the Maher Court rejected the argument that\nConnecticut\xe2\x80\x99s refusal to subsidize protected conduct, with\xc2\xad\nout m ore, impinged on the constitutional freedom o f\nchoice. This reasoning is equally applicable in the present\ncase. A substantial constitutional question would arise if\nCongress had attempted to withhold all Medicaid benefits\nfrom an otherwise eligible candidate simply because that\ncandidate had exercised her constitutionally protected\nfreedom to terminate her pregnancy by abortion. This\nw ould be analogous to Sherbert v. Vemer, 374 U.S. 398,\nw here this Court held that a State may not, consistent with\nthe First and Fourteenth Amendments, withhold all unem\xc2\xad\nploym ent compensation benefits from a claimant who\nw ould otherw ise be eligible fo r such benefits but fo r the\nfact that she is unwilling to w ork one day per w eek on her\nSabbath. But the Hyde Amendment, unlike the statute at\nissue in Sherbert, does not provide fo r such a broad dis\xc2\xad\nqualification from receipt o f public benefits. Rather, the\nH yde Amendment, like the Connecticut w elfare provision\nat issue in Maher, represents simply a refusal to subsidize\ncertain protected conduct. A refusal to fund protected\nactivity, w ithout more, cannot be equated with the imposi\xc2\xad\ntion o f a \xe2\x80\x9cpenalty\xe2\x80\x9d on that activity.\nHarris, 448 U.S. at 317 n.19 (citations omitted).\nCongress has chosen to create a program to subsidize the training o f\nveterans so that they may be em ployed in a variety o f nonreligious, non\xc2\xad\ngovernm ental, nonpolitical jobs. The program neither proscribes a reli\xc2\xad\ngious practice nor compels any practice contrary to any religious beliefs.\nFirst, no veteran is compelled to do that which he might choose not to do\non religious grounds. Nor is Congress punishing those choosing to exer\xc2\xad\n36\n\n\x0ccise their rights. It is simply refusing to subsidize the exercise o f those\nrights. N o veteran is made ineligible fo r all veterans\xe2\x80\x99 benefits by virtue o f\nhis constitutionally-protected determination to seek employment involv\xc2\xad\ning a religious activity. Like the Hyde amendment and the Connecticut\nw elfare provision in Maher, and unlike the statute in Sherbert, the VJTA\nrepresents no m ore than a refusal to fund a protected activity.7\nIn short, although the Constitution \xe2\x80\x9caffords protection against unwar\xc2\xad\nranted governm ent interference\xe2\x80\x9d with certain freedoms, \xe2\x80\x9cit does not con\xc2\xad\nfer an entitlement to such funds as may be necessary to realize all the\nadvantages o f that freedom. To hold otherwise w ould mark a drastic\nchange in our understanding o f the Constitution.\xe2\x80\x9d Harris, 448 U.S. at 31718. To paraphrase Justice Stewart in Harris, it cannot be that because\ngovernment may not prohibit individuals from engaging in certain reli\xc2\xad\ngious activities, government therefore has an affirmative constitutional\nobligation to ensure that all persons have the financial resources to fulfill\ntheir religious obligations or to perform religious tasks. Id.\n\nIII. Participation o f Religiously-Affiliated and \xe2\x80\x9cPervasively\nSectarian Institutions\xe2\x80\x9d in the VJTA Program\nHaving concluded that the VJTA does not violate the Free Exercise\nClause, w e now turn to the question o f which institutions may participate\nin the VJTA program. We first address whether religiously-affiliated insti\xc2\xad\ntutions in general may participate in the VJTA program so long as the\nfunds are provided for training veterans to perform non-religious activi\xc2\xad\nties. We then address whether a narrower class o f religious institutions\nlabelled \xe2\x80\x9cpervasively sectarian\xe2\x80\x9d by the Supreme Court may participate\nunder the same conditions. We conclude that two recent Supreme Court\ncases interpreting the Establishment Clause, Bowen v. Kendrick, 487 U.S.\n589 (1988) and Witters v. Washington Dep\xe2\x80\x99t of Servs. fo r the Blind, 474\nU.S. 481 (1986), make clear that religiously-affiliated employers may par\xc2\xad\nticipate in the VJTA program and may train veterans for nonreligious\nactivities. While the question is closer, w e believe that, under the analysis\nset forth in Witters pervasively sectarian employers may participate\nunder the same conditions.\n\n7 Nor does the VJTA place an \xe2\x80\x9cobstaclef]\xe2\x80\x9d in the path o f the veteran seeking employment performing a\nreligious activity. Maher, 432 U S. at 474. The veteran who seeks such employment \xe2\x80\x9csuffers no disadvan\xc2\xad\ntage as a consequence\xe2\x80\x9d o f Congress\xe2\x80\x99 decision to subsidize the training o f other veterans at other activi\xc2\xad\nties. Id. Congress may not have eased other difficulties in obtaining employment performing a religious\nactivity, such as the veteran\'s lack o f qualifications or the market conditions, but these difficulties w ere\n\xe2\x80\x9cneither created nor in any way affected\xe2\x80\x9d by the VJTA Id Eligible veterans are free to choose to enroll\nin the program or not. Th ey are free to choose, within certain limitations, the type o f activity for which\nthey wish to be trained. Nothing prevents them from pursuing their chosen profession, whether it is in\ngovernment, performing a political activity, or training for the ministry.\n\n37\n\n\x0cA. Training Veterans fo r Nonreligious Activities by Religiouslyaffiliated Institutions\nIn Kendrick, 487 U.S. 589 (1988), decided last term, the Court upheld a\nfederally funded program providing fo r the involvement o f religious insti\xc2\xad\ntutions in counseling adolescents about premarital sex. The Court noted\nthat it had \xe2\x80\x9cnever held that religious institutions are disabled by the First\nAm endm ent from participating in publicly sponsored social w elfare pro\xc2\xad\ngrams.\xe2\x80\x9d Id. at 609. Only if a statute provides for \xe2\x80\x9cdirect government aid to\nreligiously-affiliated institutions [with] ... the primary effect o f advancing\nreligion\xe2\x80\x9d is it unconstitutional. Id. Also, in Witters, 474 U.S. 481 (1989),\nthe Court upheld a vocational rehabilitation program aiding the blind\neven though governm ent aid w as used to subsidize a student at a private\nChristian college w h o was studying to becom e a pastor, missionary or\nyouth director. That the money ended up in the coffers o f the religious\ninstitution mattered not at all, said the Court, where the \xe2\x80\x9caid ... ultimate\xc2\xad\nly flo w [in g ] to religious institutions does so only as a result o f the gen\xc2\xad\nuinely independent and private choices o f aid recipients.\xe2\x80\x9d Id. at 487.\nApplying the three-part test o f Lemon v. Kurtzman, 403 U.S. 602\n(1971), in light o f these two cases makes clear that religiously-affiliated\ninstitutions may participate in this program to train eligible veterans to\nw ork in nonreligious activities. First, under the Lemon standard, courts\nmay invalidate a statute only i f it is \xe2\x80\x9cmotivated w holly by an impermissi\xc2\xad\nb le purpose,\xe2\x80\x9d Kendrick, 487 U.S. at 602. That is certainly not the case\nhere; the program has a clear secular purpose: the elimination or reduc\xc2\xad\ntion o f unem ploym ent among veterans. Id.\nN o r is the primary effect o f including religiously-affiliated institutions\nin the program to advance religion: only training fo r nonreligious activi\xc2\xad\nties is included in the program. Moreover, as in Witters, that the aid ulti\xc2\xad\nm ately benefits the religious institution is due primarily to the choice the\neligible veteran makes to take his certificate to a religiously-affiliated\nemployer. That the funds are paid directly to an em ployer at the veteran\xe2\x80\x99s\nbehest and do not pass through the veteran\xe2\x80\x99s hands does not change the\ncharacter o f the program.8 Th e program is \xe2\x80\x98\xe2\x80\x9c made available generally\nw ithout regard to the sectarian-nonsectarian, or public-nonpublic nature\no f the institution benefited,\xe2\x80\x99 and is in no way skewed towards religion.\xe2\x80\x9d\nWitters, 474 U.S. at 487-88 (quoting Committee fo r Pub. Educ. &\nReligious Liberty v. Nyquist, 413 U.S. at 782-83 n.38). In fact, here it is\ndeliberately directed away from religion: funding religious activities is\nexpressly prohibited by statute. By no means can the VJTA be said to\n\xe2\x80\x9ccreate [a] financial incentive fo r\xe2\x80\x9d eligible veterans to undertake a reli\xc2\xad\ngious activity, nor does it \xe2\x80\x9cprovide greater or broader benefits\xe2\x80\x9d to recipi\xc2\xad\nents w h o choose to work in religious organizations. Id. at 488.\n8 This point is discussed in greater detail in fra at p. 41.\n\n38\n\n\x0cOn the contrary, aid recipients have full opportunity to expend\nvocational rehabilitation aid on wholly secular education, and\nas a practical matter have rather greater prospects to do so.\nAid recipients\xe2\x80\x99 choices are made among a huge variety o f pos\xc2\xad\nsible careers, o f which only a small handful are sectarian.\nId. Finally, \xe2\x80\x9c [t]he function o f the ... program is hardly \xe2\x80\x98to provide desired\nfinancial support for nonpublic, sectarian institutions.\xe2\x80\x99\xe2\x80\x9d Id. (quoting\nNyquist, 413 U.S. at 783).\nWe believe that the program also passes the third prong o f the Lemon\ntest, which prohibits excessive entanglement, as that prong has recently\nbeen interpreted in Kendrick, 487 U.S. at 615-16. The Kendrick Court\nsquarely rejected the argument that including religious institutions in\nneutral programs subsidizing the performance o f secular tasks may lead\nto an \xe2\x80\x9c\xe2\x80\x98excessive government entanglement with religion.\xe2\x80\x99\xe2\x80\x9d Id. at 615\n(quoting Lemon, 403 U.S. at 613). Noting that this prong o f the Lemon test\nhad been much criticized over the years, the Kendrick Court explained\nthat cases finding entanglement had mostly involved aid to parochial\nschools, which w ere \xe2\x80\x9cpervasively sectarian\xe2\x80\x9d and had \xe2\x80\x98\xe2\x80\x9c as a substantial\npurpose the inculcation o f religious values.\xe2\x80\x99\xe2\x80\x9d Id. at 616 (quoting Aquilar\nv. Felton, 473 U.S. 402, 411 (1985)). By contrast, the Court noted that\nthere was no reason to assume that the religious institutions eligible fo r\ngovernment funds are pervasively sectarian and thus no reason to fear\nthat the kind o f monitoring required to assure that public money is spent\nin a constitutional manner w ill lead to excessive entanglement. Id.\nB. \xe2\x80\x9cPervasively Sectarian" Institutions\nThus far w e have determined that under Kendrick and Witters the VA\nmay reimburse religiously-affiliated institutions fo r training veterans fo r\nemployment performing nonreligious activities. There is, however, som e\ntension between these tw o cases as to whether the VA may also include\nwithin the program what the Court refers to as \xe2\x80\x9cpervasively sectarian\xe2\x80\x9d\ninstitutions. The Court has at times examined the nature o f the religious\ninstitution and refused to allow government monies to go to institutions\n\xe2\x80\x9cin which religion is so pervasive that a substantial portion o f its func\xc2\xad\ntions are subsumed in the religious mission.\xe2\x80\x9d Hunt v. NcNair, 413 U.S.\n734, 743 (1973).9 For example, in Kendrick the majority seem ed to indi\xc2\xad\ncate that the \xe2\x80\x9centanglement\xe2\x80\x9d prong o f the Lemon test forbids including\npervasively sectarian institutions even within programs designating fund\xc2\xad\ning fo r \xe2\x80\x9cspecific secular purposes.\xe2\x80\x9d 487 U.S. at 610.\n\n9\n\nIn R oem er v. Board o f Pub Works, 426 U.S 736 (1976), the Court defined a \xe2\x80\x9cpervasively sectarian"\n\ninstitution somewhat tautologicaUy as an institution \xe2\x80\x9cso permeated by religion that the secular side can\xc2\xad\nnot be separated from the sectarian \xe2\x80\x9d Id. at 758-59 (quoting the district court, 387 F. Supp. at 1293)\n\n39\n\n\x0cA ll o f the members o f the Court, however, do not share this view: there\nis considerable disagreement among them about the significance o f a\ndeterm ination that an organization is \xe2\x80\x9cpervasively sectarian.\xe2\x80\x9d There is\nsom e suggestion in Chief Justice Rehnquist\xe2\x80\x99s m ajority opinion in\nKendrick that the class of \xe2\x80\x9cpervasively sectarian\xe2\x80\x9d institutions is limited to\nparochial schools. Kendrick, 487 U.S. at 611. Moreover, Justice Kennedy,\nin his concurring opinion in Kendrick fo r him self and Justice Scalia, indi\xc2\xad\ncates som e skepticism about the utility o f the \xe2\x80\x9cpervasively sectarian\xe2\x80\x9d\nconcept and suggests that the significant determination is not the nature\no f the institution but how the money given by the federal government is\nspent. A s Justice Kennedy puts it, \xe2\x80\x9c [t]he question in an as-applied chal\xc2\xad\nlenge is not w hether the entity is o f a religious character, but how it\nspends its grant.\xe2\x80\x9d Id. The separate concurrence o f Justice O\xe2\x80\x99Connor also\nsuggests that the proper inquiry is whether any public funds have been\nused to prom ote religion. Id. at 623.\nEven Justices Blackmun, Brennan, Marshall and Stevens in their dis\xc2\xad\nsent in Kendrick indicated that \xe2\x80\x9cthe Constitution does not prohibit the\ngovernm ent from supporting secular social-welfare services solely\nbecause they are provided b y a religiously-affiliated organization.\xe2\x80\x9d 487\nU.S. at 640.10 Thus, the dissent in Kendrick suggests the importance o f\nevaluating the substantive nature o f the use o f public funds.11\nWe need not, however, resolve the differing viewpoints among the\nJustices in Kendrick as to whether the proper focus o f the inquiry is on\nthe institution or on the use to which the m oney is put because w e\nb elieve that Witters is controlling in this context. Because Witters makes\nclear that funds from a governm ent program similar in almost every\nrespect to the VJTA can be used fo r training in religious activities, a for\xc2\xad\ntiori VJTA funds can be used fo r training in nonreligious activities even\ni f perform ed fo r pervasively sectarian institutions. Many o f the similari\xc2\xad\nties betw een the program in Witters and the VJTA program have already\nbeen set forth above. Both programs involve government funding fo r an\n\xe2\x80\x9cunmistakably secular purpose\xe2\x80\x9d; \xe2\x80\x9cno m ore than a minuscule amount o f\nthe aid awarded under [each] program is likely to flow to religious edu\xc2\xad\ncation\xe2\x80\x9d; no one can suggest that the \xe2\x80\x98\xe2\x80\x9c actual purpose\xe2\x80\x99 in creating the pro\xc2\xad\ng ra m ^ ] was to endorse religion\xe2\x80\x9d; despite the direct payment under the\n\n10Significantly, the dissent noted\nT h ere is a very real and important difference betw een running a soup kitchen or a hospital,\nand counseling [clients] on how to make the difficult decisions facing them. The risk o f\nadvancing religion at public expense, and o f creating an appearance that the government is\nendorsing the medium and the message, is much greater when the religious organization is\ndirectly engaged in pedagogy, with the express intent o f shaping belief and changing behav\xc2\xad\nior, than w here it is neutrally dispensing medication, food, or shelter.\nK en d rick, 487 U S at 641 (Blackmun, J., dissenting) (footn ote omitted).\n11Confusingly, the dissent also indicated that the label \xe2\x80\x9cpervasively sectarian\xe2\x80\x9d may serve in some cases\nas a proxy fo r a m ore detailed analysis o f the institution, the nature o f the aid, and the manner in which\nthe aid may be used K endrick, 487 U.S at 633 (Blackmun, J., dissenting). See also Roemer, 426 U.S. at 758.\n\n40\n\n\x0cVJTA, the choice o f recipient is made by the veteran, thus \xe2\x80\x9c [a]ny aid pro\xc2\xad\nvided under [the] program[s] that ultimately flow s to religious institu\xc2\xad\ntions does so only as a result o f the genuinely independent and private\nchoices o f [the] aid recipient[]\xe2\x80\x9d; and the programs are \xe2\x80\x98\xe2\x80\x9cmade available\ngenerally without regard to the sectarian-nonsectarian, o r public-nonpublic nature o f the institution benefited,\xe2\x80\x99 and [are] in no w ay skewed\ntowards religion.\xe2\x80\x9d Witters, 474 U.S. at 485-88 (quoting Wallace v. Jaffree,\n472 U.S. 38, 74 (1985) and Committee fo r Pub. Educ. & Religious Liberty\nv. Nyquist, 413 U.S. at 782-83 n.38). Finally, in both programs the funds\nare specific reimbursement fo r costs previously incurred, not cash o r inkind grants with the effect \xe2\x80\x98\xe2\x80\x9c o f a direct subsidy to the religious [institu\xc2\xad\ntion]\xe2\x80\x99 from the State.\xe2\x80\x9d Id. at 487 (quoting Grand Rapids Sch. Dist. v. Ball,\n473 U.S. 373, 394 (1985)).12\nThe only difference between the VJTA and the program upheld in\nWitters is that here the money is paid directly to the pervasively sectari\xc2\xad\nan institution employing the veteran, while in the vocational rehabilita\xc2\xad\ntion program challenged in Witters, the vocational assistance was paid\ndirectly to the student, who transmitted it to the educational institution\no f his choice. The difference between the program upheld in Witters and\nthis one, however, is wholly formal: while the name o f a pervasively sec\xc2\xad\ntarian organization appears on a government check in the VJTA but not\nthe Witters program, in both programs the religious em ployer providing\nthe training receives the money \xe2\x80\x9cas a result o f the genuinely independent\nand private choices o f \xe2\x80\x99 the aid recipient. Id. at 487. Thus, as in Witters, \xe2\x80\x9cit\ndoes not seem appropriate to view any aid ultimately flowing to the (p er\xc2\xad\nvasively sectarian institution) as resulting from a state action sponsoring\nor subsidizing religion. N or does the mere circumstance that petitioner\nhas chosen to use neutrally available state aid to help pay fo r his religious\neducation confer any message o f state endorsement o f religion.\xe2\x80\x9d Id. at\n488-89. Accordingly, regardless o f the possibly pervasively sectarian iden\xc2\xad\ntity o f the recipient o f the government\xe2\x80\x99s check, the VJTA program is con\xc2\xad\nstitutional under the analysis in Witters because the veteran, not the g o v\xc2\xad\nernment, is choosing the recipient o f the funds.13 Thus, w e believe that\nthe Establishment Clause does not erect barriers to any institution\xe2\x80\x99s par\xc2\xad\nticipation in the VJTA program fo r training in nonreligious activities.14\n\nl2These similarities distinguish the VJTA from programs reimbursing parochial schools for part o f the\nsalaries o f teachers who teach both secular and sectarian subjects, Grand R apids Sch. D is t v B a ll, 473\nU S 373 (1985), as w ell as programs where government-employed teachers provide remedial services to\nparochial school students on parochial school grounds, A g u ila r, 473 U S at 412. In those and in most o f\nthe other cases involving government aid to parochial schools, the court looked to the amount and per\xc2\xad\ncentage o f funds going to parochial schools. Where the principal beneficiaries o f an aid program are reli\xc2\xad\ngious institutions, the Court often infers that its purpose is to endorse religion, and thus invalidates the\nprogram. Here, the purpose o f the program is to aid veterans, and no more than a \xe2\x80\x9cminuscule amount o f\nthe aid awarded\xe2\x80\x9d will go to pervasively religious institutions. Witters, 474 U S. at 486\n13 The decision to pay the monies directly to the em ployer rather than to the veteran is unexplained in\nthe legislative history, but its purpose could be to reduce administrative costs or the possibility o f fraud\n\n41\n\n\x0cIV. Distinguishing Religious From Nonreligious Activities\nHaving concluded that religiously-affiliated and pervasively sectarian\ninstitutions are eligible for participation in the VJTA program, we turn to\nthe question o f \xe2\x80\x9cwhich criteria ... the VA [may] constitutionally prescribe\nby regulation fo r rendering a determination o f the nature o f the involved\nactivity.\xe2\x80\x9d Memorandum at 3. If, as noted above, \xe2\x80\x9creligious institutions are\n[not] disabled by the First Am endm ent from participating in publicly\nsponsored social w elfare programs,\xe2\x80\x9d Kendrick, 487 U.S. at 609, and yet\nthey must carry out their responsibilities in a \xe2\x80\x9clawful, secular manner,\xe2\x80\x9d\nid. at 612, then government is inevitably charged with the task o f distin\xc2\xad\nguishing betw een that which is nonreligious and that which is religious.\nM oreover, Kendrick makes plain that \xe2\x80\x9cthe very supervision o f the aid to\nassure that it does not further religion [does not] render[] the statute\ninvalid.\xe2\x80\x9d Id. at 615. The problem for the governm ent therefore is how to\ndistinguish objectively those activities that are religious from those activ\xc2\xad\nities that are not.15\nIn review ing applications to determine whether an activity is \xe2\x80\x9creligious,\xe2\x80\x9d\none important objective signpost the VA should consider is whether the\nactivity is also traditionally perform ed in nonreligious organizations. Such\na requirement w ould not only serve the goal o f the job training program\nby making the veteran more employable generally, it would also say some\xc2\xad\nthing \xe2\x80\x9cobjective\xe2\x80\x9d about the activity in question. But meeting this require\xc2\xad\nment is not sufficient by itself to make an activity nonreligious; the activ\xc2\xad\nity perform ed by the veteran must also be scrutinized in its organizational\ncontext. To illustrate: a nonreligious organization may employ a person\nw hose responsibility is to ensure that its em ployees behave in a manner\nconsistent with the goals and values o f the organization (e.g., a discipli\xc2\xad\nnary o fficer o f a fraternal organization); such a position in a religiously-\n\n14You have not asked specifically whether the VA may choose to exclude all positions at religious insti\xc2\xad\ntutions or m ore narrowly, all positions at pervasively sectarian institutions from the program to avoid the\nneed to distinguish between religious and nonrehgious activities. Such a position may seem superficial\xc2\xad\nly attractive to avoid running afoul o f the Establishment Clause as interpreted by the Supreme Court.\nHaving decided that the Establishment C lause does not prohibit religious institutions from participating\nin the program, however, w e think it appropriate to emphasize, that the language o f the statute is\nunequivocal in excluding only \xe2\x80\x9creligious a ctiv itie s.\xe2\x80\x9d Section 7 (a )(2 ) o f the VJTA provides that the\nAdministrator \xe2\x80\x9cshall approve a proposed program o f jo b training o f an employer\xe2\x80\x9d unless the program\ndoes not m eet the criteria set by section 7(b). This language does not vest unfettered discretion in the\nAdministrator, it suggests only that those programs failing to meet the requirements o f section 7 (b ) may\nbe excluded. Veterans seeking training fo r nonrehgious activities by religious institutions are thus pre\xc2\xad\nsumably entitled by statute to have religious employers reimbursed fo r training them.\n15Justice Brennan pointed out the problem inherent in the very enterprise where government seeks to\ndistinguish betw een such activities in his concurrence in C oi\'poration o f P resid in g Bishop v Amos, 483\nU.S 327, 340-46 (1987). He there said\nWhat makes the application o f a religious-secular distinction difficult is that the character o f\nan activity is not self-evident. As a result, determining whether an activity is religious or sec\xc2\xad\nular requires a searching case-by-case analysis.\nId. at 343.\n\n42\n\n\x0caffiliated organization may be too intertwined with the organization\xe2\x80\x99s reli\xc2\xad\ngious tenets to be characterized as nonreligious.\nThus, the degree to which the activity is informed and affected by the\nreligious tenets o f the organization might also be a relevant factor. Amos,\n594 F. Supp. 791, 799 (D. Utah 1984), rev\xe2\x80\x99d on other grounds, 483 U.S. 327\n(1987) (Court should examine \xe2\x80\x9cthe nexus between the primary function\no f the activity in question and the religious rituals or tenets o f the reli\xc2\xad\ngious organization or matters o f church administration\xe2\x80\x9d). On the other\nhand, that the activity is mandated by religious tenets is not sufficient by\nitself to cause that activity to be deemed religious. F or example, charity\nmay be required by an organization\xe2\x80\x99s religious law, but a position in a reli\xc2\xad\ngiously-affiliated foundation dispensing the foundation\xe2\x80\x99s monies is not, it\nseems to us, necessarily a religious activity.16\nThe difficulty in distinguishing between religious and nonreligious\nactivities lies in seeking to define that which lies between the tw o rela\xc2\xad\ntively clear ends o f a continuum. Thus, w hile it may seem obvious that\nactivities such as custodial, maintenance and cafeteria services are non\xc2\xad\nreligious, and that performing sacraments or leading prayer services are\novertly religious actions, defining that which lies between is far more dif\xc2\xad\nficult.17 Perhaps the best that can be said is that a religiously-affiliated\norganization wishing to participate in the job-training program ought to\nbe required to state the specific jo b or jobs in which the veteran is to be\nemployed, the tasks that jo b entails, and w hy it believes the activities in\nthat jo b can fairly be characterized as nonreligious. This is consistent\n\n,6To take a further example, Jewish law er\\joins as a religious matter violations o f the law o f the nation\nin which the community lives. J.J Schacter, D in a De-M alkkuta D ina A Review. 1977 Dine\xe2\x80\x99 Yisrael\nAnnual 77, 79 ( \xe2\x80\x9cThe Talmudic dictum din a demalkkuta dina, the law o f the state is law, first formulated\nby Samuel in the third century C E and thereafter accepted as part o f Jewish law was understood in the\nmedieval period to be a legal ratification o f th[e] existing state o f a ffairs"). Yet to characterize as per\xc2\xad\nforming a \xe2\x80\x9creligious activity" every lawyer, accountant, auditor, and other individual em ployed to ensure\nthat a Jewish organization is adhering to the laws o f the United States is plainly to ascnbe too much to\nthe religious requirement and to ignore the more obvious reason for performing the activity.\n17 The VA has expressed concern about the decision by the Seventh Circuit that placing CETA workers,\nwho w ere paid by the government, in certain positions in sectarian schools violated the Establishment\nClause. Deckei\' v O \xe2\x80\x99D onnell, 661 F2d 598 (7th Cir. 1980). In that case the court held unconstitutional\n\xe2\x80\x9cft]he outstationing [by public authorities] o f CETA workers in sectarian elementary or secondary\nschools for the purpose o f providing remedial education\xe2\x80\x9d; \xe2\x80\x9cthe placement o f CETA workers in instruc\xc2\xad\ntional positions m summer or recreation or similar programs at sectarian schools\xe2\x80\x9d; \xe2\x80\x9cinstructional posi\xc2\xad\ntions m adult education programs\xe2\x80\x9d, \xe2\x80\x9cregulations] allowing the employment o f CETA w orkers in custo\xc2\xad\ndial child care after school hours\xe2\x80\x9d, the \xe2\x80\x9cuse o f CETA workers in \xe2\x80\x98diagnostic o r therapeutic speech and\nhearing services\xe2\x80\x99\xe2\x80\x9d, regulations permitting \xe2\x80\x9cCETA employees to provide services relating to the health and\nsafety o f the students\xe2\x80\x9d; and placement o f \xe2\x80\x9cCETA workers in \xe2\x80\x98[fu nctions perform ed with respect to the\nadministration and grading o f State-prepared examinations." O \xe2\x80\x99D onneU, 661 F2d at 610-13. The\nO \xe2\x80\x99D onnell court struck down even the regulations \xe2\x80\x9callowing CETA workers to provide \xe2\x80\x98support services\nfo r the administration o f federally funded or regulated programs made applicable to religious institu\xc2\xad\ntions\xe2\x80\x99\xe2\x80\x9d; \xe2\x80\x9cplacements in cafeteria work or other work directly related in the provision o f food services to\nstudents"; and \xe2\x80\x9cthe placement o f CETA workers in ac^unct custodial or maintenance w ork related to\ncafeteria w ork and health services \xe2\x80\x9d Id at 614.\nContinued\n\n43\n\n\x0cw ith the approach taken by the one court that sought to set forth gener\xc2\xad\nal criteria as to permissible regulations. Thus, as noted in your m em o\xc2\xad\nrandum, in Am os the district court sought to articulate criteria to deter\xc2\xad\nm ine what activity can be classified as religious. See Amos, 594 F. Supp.\n791 (D. Utah 1984), rev\xe2\x80\x99d on other grounds, 483 U.S. 327 (1987).\nGenerally, the district court suggested examining the nexus between the\nactivity and the religious tenets or rituals o f the institution.18 While\ninevitably lacking somewhat in specificity, these criteria seem to us, as a\ngeneral matter, w orthy o f consideration in the formulation o f regulations.\nThe m ore specific criteria w e set forth above are meant only as exam \xc2\xad\nples that ought to be considered in promulgating regulations. They are by\nno means exclusive. We hope that we have here provided sufficient guid\xc2\xad\nance to enable the VA to begin drafting and formulating regulations dis\xc2\xad\ntinguishing betw een religious and nonreligious activities. We stand ready\nto review such regulations p rio r to their issuance, and to assist in any\nother appropriate way.\n\nConclusion\nThe exclusion o f religious activities from the ambit o f activities for\nw hich the VJTA may fund training does not violate the Free Exercise\nClause. The exclusion neither prohibits, impedes nor penalizes anyone\nseeking to perform a religiously-mandated requirement. Second, the\ninclusion o f the institutions in the program that are religiously-affiliated\n\n17(...con tin u ed)\nTh e outcom e in O \xe2\x80\x99D on n ell does not support the argument that these activities becam e religious mere\xc2\xad\nly because they w ere perform ed in a pervasively sectarian institution. O\'D onnell ran afoul o f the princi\xc2\xad\nple that the \xe2\x80\x9c potential fo r divisive political conflict over the issue o f funding\xe2\x80\x9d along religious lines may\nbe sufficient to warrant invalidating the program under the Establishment Clause Id at 615 That \xe2\x80\x9cpoten\xc2\xad\ntial fo r divisiveness" existed in part because o f the nature o f the CETA program, which was to give block\ngrants to a designated, finite group of wprim [ary] sponsors\xe2\x80\x9d (and their sub-grantees) who were chosen to\nprovide em ploym ent to eligible workers. Id at 602, 615 This program is thus to be contrasted with the\nVJTA, which affords any em ployer meeting the statutory criteria the opportunity to participate in the pro\xc2\xad\ngram M oreover, it is precisely the discretion vested in the government and its grantees under CETA that\ndistinguishes it from the VJTA and the program upheld in Witters. As noted above, Witters turned on the\nfact that the beneficiary determined where the money was to go, as is the case with the VJTA. In CETA,\nthe governm ent determined which programs were to receive funds and beneficiaries w ere encouraged\nto w ork fo r previously-designated institutions This makes CETA a very different program from the one\nupheld in W itters and distinguishes O \xe2\x80\x99D o n n e ll from the situation here.\n18 The Supreme Court reversed the district court on the ground that non-profit, church-owned and\nchurch-run facilities w ere exem pt from the provisions o f title VII prohibiting discrimination on the basis\no f religion Th e Court did not address the issue o f how best to distinguish between religious and non-rehgious activities. The A m os distnct court\xe2\x80\x99s test is thus unaffected, and seem s to us helpful. The court there\nlabeled an activity \xe2\x80\x9creligious\xe2\x80\x9d if \xe2\x80\x9cthere is a substantial connection between the activity in question and\nthe religious organization\xe2\x80\x99s religious tenets or matters o f church administration " Id. at 799. However,\nw here \xe2\x80\x9cthe nexus betw een the pnmary function o f the activity in question and the religious tenets or rit\xc2\xad\nuals o f the religious organization or matters o f church administration is tenuous o r non-existent,\xe2\x80\x9d for an\nactivity to be religious there must be a \xe2\x80\x9csubstantial relationship between the em ployee\xe2\x80\x99s job and church\nadministration or the religious organization\xe2\x80\x99s ntuals or tenets \xe2\x80\x9d Id.\n\n44\n\n\x0cbut not pervasively sectarian does not violate the Establishment Clause.\nAlthough the question is a closer one, inclusion o f pervasively sectarian\ninstitutions is also in our view constitutional, so long as the selection o f\nsuch institution is the result o f the genuinely independent and private\nchoice o f the veteran. Finally, distinguishing between nonreligious and\nreligious activities, how ever difficult a task, is here required by statute\nand is constitutional. Regulations doing so should focus, at a minimum,\non the nexus betw een religious tenets and the jo b to be undertaken.\nD o u g l a s W. K m ie c\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n45\n\n\x0c'


b'Days of Service by Special Government Employees\nThe longstanding interpretation of the Executive Branch that service by a special government employee\nduring any part of a day counts as a full day under 18 U.S.C. \xc2\xa7\xc2\xa7 203 and 205, which impose greater\nconflict of interest restrictions after a special government employee works 60 days, is reaffirmed.\n\nJanuary 26, 2007\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF DEFENSE\nUnder some provisions of the criminal conflict of interest laws, a \xe2\x80\x9cspecial\nGovernment employee\xe2\x80\x9d or \xe2\x80\x9cSGE\xe2\x80\x9d\xe2\x80\x94an employee expected to work no more than\n130 days during a 365-day period\xe2\x80\x94is subject to less extensive restrictions than a\nregular government employee. Those constraints increase, however, when the\nSGE has served in an agency for more than sixty days during the preceding 365day period. See, e.g., 18 U.S.C. \xc2\xa7\xc2\xa7 203, 205 (2000). The longstanding interpretation of the Executive Branch has been that service for any part of a day counts as a\nfull day of service toward the sixty-day limit. You have asked us to overturn that\ninterpretation and to count only time the SGE has actually worked, so that a single\nday for counting purposes would comprise eight hours of work, even if performed\nover several days. We reaffirm the existing interpretation. 1\n\n1\n\nLetter for Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from\nWilliam J. Haynes II, General Counsel, Department of Defense, Re: Computation of the Service of\nSpecial Government Employees (Aug. 22, 2005) (\xe2\x80\x9cDoD Letter\xe2\x80\x9d). We sought, and received, the views of\nthe Office of Government Ethics (\xe2\x80\x9cOGE\xe2\x80\x9d). See Letter for Steven G. Bradbury, Acting Assistant\nAttorney General, Office of Legal Counsel, from Marilyn L. Glynn, General Counsel, Office of\nGovernment Ethics (Oct. 3, 2005) (\xe2\x80\x9cOGE Letter\xe2\x80\x9d). OGE \xe2\x80\x9cdoes not support\xe2\x80\x9d the interpretation\nadvocated in the DoD Letter. OGE Letter at 4. Your office provided a response to the OGE Letter.\nLetter for Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from\nDaniel J. Dell\xe2\x80\x99Orto, Principal Deputy General Counsel, Department of Defense, Re: Computation of\nthe Service of Special Government Employees (July 6, 2006) (\xe2\x80\x9cDoD Response\xe2\x80\x9d).\nWe understand the DoD letter to address only the computation of 60 days of service, rather than\nhow to estimate whether an employee will work more than 130 days in a 365-day period and thus not\nqualify as an SGE. See DoD Letter, Attachment, Employment of Experts and Consultants (Counting\nDays or Hours) at 1; DoD Response, Attachment, Computation of Service for Special Government\nEmployees for Purposes of Application of 18 U.S.C. 203 and 205, at 1. The rule for counting the\nexpected number of workdays towards the 130-day limit has always been the same as for the 60-day\nlimit\xe2\x80\x94a partial day counts as a full day\xe2\x80\x94and is equally longstanding. See Memorandum to the Heads\nof Executive Departments and Agencies, Re: Preventing Conflicts of Interest on the Part of Special\nGovernment Employees, 28 Fed. Reg. 4539, 4541, 4542 (May 2, 1963) (\xe2\x80\x9cPresidential Memorandum\xe2\x80\x9d);\nsee also OGE Letter at 1 (noting that the counting rule applies outside the context addressed by the\nDoD Letter).\n\n13\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nI.\nThe term \xe2\x80\x9cspecial Government employee\xe2\x80\x9d is defined to include\nan officer or employee of the executive or legislative branch of the\nUnited States Government, of any independent agency of the United\nStates or of the District of Columbia, who is retained, designated,\nappointed, or employed to perform, with or without compensation,\nfor not to exceed one hundred and thirty days during any period of\nthree hundred and sixty-five consecutive days, temporary duties either on a full-time or intermittent basis. . . .\n18 U.S.C. \xc2\xa7 202(a) (2000). Section 203 of title 18 generally forbids an officer or\nemployee of the Executive Branch from (among other things) seeking, receiving,\nor agreeing to receive \xe2\x80\x9cany compensation for any representational services, as\nagent or attorney or otherwise, rendered or to be rendered either personally or by\nanother\xe2\x80\x9d in any particular matter in which the United States is a party or has a\ndirect and substantial interest, before any department, agency, court, or officer. Id.\n\xc2\xa7 203(a)(1). An SGE, however, is subject to this prohibition \xe2\x80\x9conly in relation to a\nparticular matter involving a specific party or parties,\xe2\x80\x9d where either (1) the SGE\n\xe2\x80\x9chas at any time participated personally and substantially as a Government\nemployee or [SGE]\xe2\x80\x9d in the matter or (2) the matter \xe2\x80\x9cis pending in the department\nor agency\xe2\x80\x9d in which the SGE is serving. The second ground of coverage\xe2\x80\x94that the\nmatter is pending in the SGE\xe2\x80\x99s department or agency\xe2\x80\x94does not apply if the SGE\n\xe2\x80\x9chas served in such department or agency no more than sixty days during the\nimmediately preceding period of three hundred and sixty-five consecutive days.\xe2\x80\x9d\nId. \xc2\xa7 203(c). Thus, until an SGE exceeds the sixty-day limit, he can receive fees\nfor most matters that are pending before the agency where he serves, so long as he\nhas not personally been involved in the matters as a government employee. For\nexample, an SGE who is also a partner in a law firm generally can receive a share\nof fees in a specific-party matter pending in his agency until he exceeds sixty days\nof service during the preceding 365 days. See Application of Conflict of Interest\nRules to the Conduct of Government Litigation by Private Attorneys, 4B Op.\nO.L.C. 434, 441, 444 (1980) (attaching, as appendix, Memorandum Opinion for\nthe Deputy Associate Attorney General, from Larry A. Hammond, Deputy\nAssistant Attorney General, Office of Legal Counsel (Mar. 23, 1979) (discussing\nsection 203 with regard to temporary attorneys)).\nSection 205 is similar in relevant respects. It generally bars an officer or employee of the United States from (among other things) \xe2\x80\x9cact[ing] as agent or\nattorney for prosecuting any claim against the United States\xe2\x80\x9d or \xe2\x80\x9cact[ing] as agent\nor attorney for anyone\xe2\x80\x9d before any department, agency, court, or officer in\nconnection with a particular matter in which the United States is a party or has a\ndirect and substantial interest. 18 U.S.C. \xc2\xa7 205(a). As with section 203, an SGE is\n\n14\n\n\x0cDays of Service by Special Government Employees\n\nsubject to this prohibition only as to a specific-party matter (1) on which he\nworked as a government employee, or (2) which is pending in the department or\nagency where he is serving. The second ground for coverage, once again, does not\napply if the SGE \xe2\x80\x9chas served in such department or agency no more than sixty\ndays in the preceding period of three hundred and sixty-five consecutive days.\xe2\x80\x9d Id.\n\xc2\xa7 205(c). Thus, for example, an SGE could serve as an attorney or agent for a\nclient who is pursuing a claim before the SGE\xe2\x80\x99s agency, but only if the SGE has\nnot exceeded the sixty-day limit (and, of course, he has not worked on the matter\nas a government employee). See Employment of Temporary or Intermittent\nAttorneys and Investigators by the Office of Special Counsel, 3 Op. O.L.C. 78, 83\n(1979) (\xe2\x80\x9cTemporary or Intermittent Attorneys\xe2\x80\x9d) (generally discussing section\n205(c)).\nCongress created the statutory category of \xe2\x80\x9cspecial Government employee[s]\xe2\x80\x9d\nin 1962 as part of a comprehensive revision of the conflict of interest laws. Pub. L.\nNo. 87-849, 76 Stat. 1119 (1962). Less than four months after the legislation took\neffect, President Kennedy issued a detailed memorandum to the heads of executive\ndepartments and agencies discussing its impact. Presidential Memorandum, supra\nnote 1. The President stated that \xe2\x80\x9c[a] part of a day should be counted as a full day\nin connection with the 60-day standard.\xe2\x80\x9d Id. at 4542; see also id. at 4541 (stating\nthat \xe2\x80\x9c[a] part of a day should be counted as a full day for purposes of this [130day] estimate\xe2\x80\x9d). The Executive Branch has maintained this interpretation ever\nsince. Although President Johnson\xe2\x80\x99s Executive Order 11222, Prescribing Standards of Ethical Conduct for Government Officers and Employees (May 8, 1965),\n3 C.F.R. 130 (1965 Supp.), supplanted and revoked the Presidential Memorandum,\nPresident Kennedy\xe2\x80\x99s position that partial days of work would count as full days\ntowards the sixty-day limit was continued in the Federal Personnel Manual, app.\nC-12 (Nov. 9, 1965, revised July 1969, revoked 1994), issued the same year by the\nCivil Service Commission, to which President Johnson\xe2\x80\x99s Executive Order 11222\nhad delegated authority in this area. 2 Since then, the opinions of both our Office\nand the Office of Government Ethics consistently have applied the same counting\nrule. See, e.g., Service of Private Sector Persons on Food and Drug Administra2\n\nWhen the Presidential Memorandum \xe2\x80\x9cwas rescinded by Executive Order 11222 (May 8, 1965) . . .\nsome provisions were retained in Part III of Executive Order 11222, and the remainder were designated\nfor inclusion in Appendix C [of the Federal Personnel Manual].\xe2\x80\x9d Letter for Patricia Schroeder, U.S.\nHouse of Representatives, from Larry L. Simms, Deputy Assistant Attorney General, Office of Legal\nCounsel at 1 (Apr. 8, 1982) (\xe2\x80\x9c1982 Letter\xe2\x80\x9d). As OGE has explained, Executive Order 11222 delegated\nto the Civil Service Commission the President\xe2\x80\x99s authority to issue regulations for the conduct of\npersons in the civil service, and \xe2\x80\x9c[i]n pursuance of an understanding with interested agencies at the time\nExecutive Order 11222 was drafted, the Civil Service Commission on November 9, 1965, reinstated the\nmost significant portions of the [Presidential Memorandum] . . . by publishing them as instructions of\nGovernmentwide applicability in the form of Appendix C [to the Federal Personnel Manual].\xe2\x80\x9d OGE,\nMemorandum to Heads of Departments and Agencies of the Executive Branch Regarding Members of\nFederal Advisory Committees and the Conflict-of-Interest Statutes, Informal Advisory Mem. 82x22,\n1982 WL 31878, at *4 (July 9).\n\n15\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\ntion Advisory Committees, 2 Op. O.L.C. 151, 155 n.3 (1978) (\xe2\x80\x9cAdvisory Committees\xe2\x80\x9d) (reaffirming the interpretation of the Presidential Memorandum); Memorandum for Dudley Chapman, Associate Counsel to the President, from Leon\nUlman, Deputy Assistant Attorney General, Office of Legal Counsel (July 10,\n1974); Memorandum for Charles F.C. Ruff, Associate Deputy Attorney General,\nfrom Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel,\nRe: Application of the Conflict of Interest Laws to Special Assistant United States\nAttorney Frank W. Dunham, Jr. at 2 (Apr. 19, 1979) (following the view of the\nFederal Personnel Manual, embodying the Presidential Memorandum); Memorandum for Fred F. Fielding, Counsel to the President, from Ralph W. Tarr, Acting\nAssistant Attorney General, Office of Legal Counsel, Re: President\xe2\x80\x99s Council on\nPhysical Fitness and Sports at 6 n.6 (Feb. 8, 1985) (citing and following the view\nof the Federal Personnel Manual); OGE, Memorandum to Designated Agency\nEthics Officials, General Counsels and Inspectors General Regarding Summary of\nEthical Requirements Applicable to Special Government Employments, Informal\nAdvisory Mem. 00x1, 2000 WL 33407342, at *15 n.10 (Feb. 15); see also\nRestrictions on a Federal Appointee\xe2\x80\x99s Continued Employment by a Private Law\nFirm, 7 Op. O.L.C. 123, 126 (1983) (employing the same rule for counting a\n\xe2\x80\x9cday\xe2\x80\x9d in estimating whether an employee is expected to work 130 days in the next\n365 days); Temporary or Intermittent Attorneys, 3 Op. O.L.C. at 81 (same); OGE,\nLetter to a Private Attorney, Informal Advisory Ltr. 84x4, 1984 WL 50157, at *1\n(Apr. 6) (same).\nFor two principal reasons, you contend that this interpretation of sections 203\nand 205 should be changed and that \xe2\x80\x9cthe service of SGEs may be computed on an\nhourly basis.\xe2\x80\x9d DoD Letter at 1. First, a 1962 opinion of the Attorney General\nreferred to the Hatch Act as a guide in determining when the conflict of interest\nlaws apply to intermittent employees, Conflict-of-Interest Statutes: Intermittent\nConsultants or Advisers, 42 Op. Att\xe2\x80\x99y Gen. 111, 117 (1962) (\xe2\x80\x9c1962 Opinion\xe2\x80\x9d),\nand, since 1994, the Office of Personnel Management (\xe2\x80\x9cOPM\xe2\x80\x9d) has interpreted the\nHatch Act to apply only when employees are on duty. See 5 C.F.R. \xc2\xa7 734.601\n(2006). Because \xe2\x80\x9cOPM now applies the Hatch Act when SGEs are only \xe2\x80\x98on\nduty,\xe2\x80\x99\xe2\x80\x9d you urge that \xe2\x80\x9cit is logical to assume that \xe2\x80\x98days of service\xe2\x80\x99 should now also\nbe computed on the \xe2\x80\x98on duty\xe2\x80\x99 or hourly basis.\xe2\x80\x9d DoD Letter, Attachment, Hatch\nAct. Second, you explain that when the rule on counting days under 18 U.S.C.\n\xc2\xa7\xc2\xa7 203 and 205 was formulated, \xe2\x80\x9cpay for consultants was computed only on [a]\ndaily rate,\xe2\x80\x9d but agencies \xe2\x80\x9cnow have authority to pay experts and consultants by the\nhour.\xe2\x80\x9d DoD Letter, Attachment, Employment of Experts and Consultants (Counting Days or Hours). You contend that \xe2\x80\x9c[t]his is further evidence that the intent of\nthe law is to cover only the hours worked, and that working one hour of one day\ndoes not mean that the consultant worked an entire day.\xe2\x80\x9d Id.\n\n16\n\n\x0cDays of Service by Special Government Employees\n\nII.\nA.\nSince shortly after Congress created the category of \xe2\x80\x9cspecial Government employees,\xe2\x80\x9d the Executive Branch consistently has adhered to the interpretation that,\nunder 18 U.S.C. \xc2\xa7\xc2\xa7 203 and 205, an SGE \xe2\x80\x9cserve[s] in [his] department or agency\xe2\x80\x9d\non any day on which he works and that each such day thus counts as a full day\ntoward the sixty-day threshold triggering additional restrictions. We would not\ndepart from that contemporaneous and continuous interpretation absent compelling reasons to do so. As explained, we see no such reasons. First, that interpretation accords with the plain meaning of the statutory text, and Congress has not\ndisturbed that understanding when amending sections 203 and 205. Second, we do\nnot believe that a change in the interpretation of the Hatch Act or in the rules for\npaying consultants justifies such a departure.\nThe term \xe2\x80\x9cdays\xe2\x80\x9d of service, as used in sections 203 and 205, is better read to\nmean calendar days on which the SGE performed work for the agency, rather than\nunits consisting of eight hours of work that an employee may have performed over\nthe course of several calendar days. That understanding is consistent with the\nordinary meaning of the term \xe2\x80\x9cday\xe2\x80\x9d at the time of enactment (as well as today).\nSee Webster\xe2\x80\x99s New International Dictionary 672 (2d ed. 1958) (\xe2\x80\x9c3. The mean\nsolar day, used in ordinary reckoning of time . . . \xe2\x80\x94called, specif., the civil day.\nThis is the period recognized by courts as a day.\xe2\x80\x9d); accord Random House\nDictionary of the English Language 369\xe2\x80\x9370 (1966); see also The Pocket Veto\nCase, 279 U.S. 655, 679 (1929) (\xe2\x80\x9cThe word \xe2\x80\x98days,\xe2\x80\x99 when not qualified, means in\nordinary and common usage calendar days.\xe2\x80\x9d); Butterbaugh v. Dep\xe2\x80\x99t of Justice, 336\nF.3d 1332, 1337 (Fed. Cir. 2003) (\xe2\x80\x9cthe ordinary meaning of \xe2\x80\x98day\xe2\x80\x99 is a calendar\nday\xe2\x80\x9d). The term \xe2\x80\x9cday\xe2\x80\x9d also commonly is used to denote the portion of a calendar\nday that is set aside for work, but even that meaning refers to a portion of a single\ncalendar day devoted to work, rather than to a collection of eight hours of work\nperformed over several days. See Black\xe2\x80\x99s Law Dictionary 473 (4th rev. ed. 1968)\n(\xe2\x80\x9c7. The period of time, within the limits of a natural day, set apart either by law\nor by common usage for the transaction of particular business or the performance\nof labor . . . .\xe2\x80\x9d) (emphasis added); Random House Dictionary 370 (\xe2\x80\x9c5. The portion\nof a day allotted to labor: an eight hour day.\xe2\x80\x9d) (emphasis added to first selection).\nContext also supports the conclusion that the term refers to calendar days. Both\nsections 203 and 205 refer to the sixty-day period in relation to \xe2\x80\x9cthe immediately\npreceding period of three hundred and sixty-five consecutive days.\xe2\x80\x9d 18 U.S.C.\n\xc2\xa7\xc2\xa7 203(c), 205(c). The word \xe2\x80\x9cdays\xe2\x80\x9d as used here is most naturally understood to\nrefer to the number of calendar days comprising an ordinary year. Congress\npresumably intended the word \xe2\x80\x9cdays\xe2\x80\x9d to have the same meaning both places that it\nappears in the same section, the only difference being, as the statute indicates, that\n\n17\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nthe 365 \xe2\x80\x9cdays\xe2\x80\x9d are to be consecutive, but the sixty \xe2\x80\x9cdays\xe2\x80\x9d need not be. See, e.g.,\nMerrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, 547 U.S. 71, 86 (2006)\n(\xe2\x80\x9cGenerally, identical words used in different parts of the same statute are . . .\npresumed to have the same meaning.\xe2\x80\x9d) (internal quotation marks omitted).\nParticularly because the legislation specifically dealt with conflict of interest rules\ngoverning \xe2\x80\x9cthe part-time services of consultants and advisers,\xe2\x80\x9d S. Rep. No. 872213, at 7 (1962) (emphasis added); 18 U.S.C. \xc2\xa7 202(a) (addressing the performance of \xe2\x80\x9ctemporary duties either on a full-time or intermittent basis\xe2\x80\x9d), it seems\nlikely that Congress would have expressed the sixty-day limitation in terms of the\nnumber of hours worked if its intent had been only to count the portion of the day\nan SGE actually worked.\nThis understanding is consistent with the interpretation of one authoritative\ncommentator at the time of the legislation\xe2\x80\x99s passage. Professor Bayless Manning,\nwho was a member of the President\xe2\x80\x99s Advisory Panel on Ethics and Conflicts of\nInterest in Government whose 1961 report spurred interest in reform, see Special\nMessage to the Congress on Conflict-of-Interest Legislation and on Problems of\nEthics in Government (Apr. 27, 1961), 1 Pub. Papers of Pres. John F. Kennedy\n326, 327 (1961); S. Rep. No. 87-2213, at 6, and who participated in the development of the legislation enacted in 1962, see Bayless Manning, Federal Conflict of\nInterest Law vii (1964), wrote of the 130-day limitation contained in section\n202(a): \xe2\x80\x9cIt seems quite clear that under Section 202 the employee\xe2\x80\x99s working time\nis not to be computed on a[n] . . . hour by hour basis. In principle, the employee\nwill be considered to have worked a day for the government if he has worked a\npart of the day.\xe2\x80\x9d Id. at 28.\nFurthermore, the longstanding view of the Executive Branch, in accordance\nwith the language of the statutes and pursuant to the 1963 Presidential Memorandum, has particular weight here. First, in Advisory Committees, we noted that\n\xe2\x80\x9c[t]he Presidential [M]emorandum was drafted by the Office of Legal Counsel and\ntherefore reflects a contemporaneous interpretation of the conflict of interest laws\nby the Department charged with construing them.\xe2\x80\x9d 2 Op. O.L.C. at 155 n.3.\nPerhaps the principle that \xe2\x80\x9cconsiderable weight must be accorded\xe2\x80\x9d to an agency\xe2\x80\x99s\n\xe2\x80\x9ccontemporaneous interpretation of the statute it is entrusted to administer,\xe2\x80\x9d CFTC\nv. Schor, 478 U.S. 833, 844 (1986), would not apply when courts construe a\ncriminal statute such as section 207, see Crandon v. United States, 494 U.S. 152,\n177 (1990) (Scalia, J., concurring in judgment) (\xe2\x80\x9c[W]e have never thought that the\ninterpretation of those charged with prosecuting criminal statutes is entitled to\ndeference.\xe2\x80\x9d). We nonetheless believe that an interpretation issued by the President\nthat has not been repudiated (even if, as explained below, it is no longer formally\nin effect) should have particular weight in our analysis of the position to be taken\nby the Executive Branch. Under Article II of the Constitution, the President has\nthe authority to determine the Executive Branch\xe2\x80\x99s interpretation of the law:\n\n18\n\n\x0cDays of Service by Special Government Employees\n\nThe ordinary duties of officers prescribed by statute come under the\ngeneral administrative control of the President by virtue of the general grant to him of the executive power, and he may properly supervise and guide their construction of the statutes under which they act\nin order to secure that unitary and uniform execution of the laws\nwhich article 2 of the Constitution evidently contemplated in vesting\ngeneral executive power in the President alone.\nMyers v. United States, 272 U.S. 52, 135 (1926). The Presidential Memorandum\nwas an exercise of this power by the President, intended \xe2\x80\x9cto achieve the maximum\nuniformity possible in order to insure general standards of common application\nthroughout the Government.\xe2\x80\x9d 28 Fed. Reg. at 4540. 3\nSecond, this presidential interpretation has been continuously followed ever\nsince, a point that is true notwithstanding the current absence of a formal directive\nmandating this method of computing the number of days. As explained above in\nPart I, President Kennedy\xe2\x80\x99s interpretation was adopted and reissued by the Civil\nService Commission in 1965; it was expressly and continuously in force for\ntwenty-nine years. In January 1994, the Office of Personnel Management, the\nsuccessor to the Civil Service Commission, abolished the Federal Personnel\nManual in an effort to establish \xe2\x80\x9ca more flexible and simpler system which will\nuntie the hands of frontline users.\xe2\x80\x9d Office of Personnel Management, Press\nRelease, From Red Tape to Results: OPM Bids Farewell to the FPM (Jan. 26,\n1994); see 59 Fed. Reg. 2945 (Jan. 20, 1994) (deleting references to the Federal\nPersonnel Manual). But there has been no suggestion that OPM has retreated from\nthe partial-day rule, and no part of this history reflects any concern about the legal\nbasis for that rule. Indeed, as noted above, the opinions of this Office and those of\nOGE have consistently relied upon the interpretation embodied in the Presidential\nMemorandum.\n\n3\n\nArguably, because the Presidential Memorandum declares that \xe2\x80\x9c[a] part of a day should be counted as a full day,\xe2\x80\x9d 28 Fed. Reg. at 4542 (emphasis added), it offers prudential advice, rather than an\ninterpretation of the statute. Reading that sentence in context, however, we believe that the \xe2\x80\x9cshould\xe2\x80\x9d\nreflects instead a directive based on statutory interpretation. The direction about the treatment of a\npartial day appears in the first sentence of a two-sentence paragraph about counting the 60 days. The\nnext sentence states that \xe2\x80\x9c[s]ervice performed by a special Government employee in one department or\nagency should not be counted by another in connection with the 60-day standard.\xe2\x80\x9d Id. Because this\nsecond sentence, setting out the interpretation that \xe2\x80\x9cshould\xe2\x80\x9d be followed in dealing with SGEs serving\nin more than one agency, results in a lesser restriction than the contrary interpretation, the interpretation\nadopted in that sentence is plainly not prudential. Nor is this lesser restriction a matter of enforcement\npolicy. By their terms, sections 203 and 205 have always tied the 60-day limit to service in the specific\nagency where a matter is pending, by referring to an SGE \xe2\x80\x9cwho has served in such department or\nagency no more than sixty days.\xe2\x80\x9d The rule about separately counting service in each agency, therefore,\ncomes directly from the language of the statute. The word \xe2\x80\x9cshould\xe2\x80\x9d in the two adjoining sentences on\nthe same subject is most naturally read to have the same meaning in both cases and thus to set out an\ninterpretation of the statutory command, not prudential advice.\n\n19\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nThird, while the Executive Branch has adhered to this view, Congress has\namended sections 203 and 205. In 1986, it made minor amendments to the proviso\nin section 203 dealing with the sixty-day limit, see Pub. L. No. 99-646, \xc2\xa7 47(a)(4),\n100 Stat. 3592, 3605, and in 1989 it reenacted section 205 and made minor\namendments to the parallel proviso in that section, see Pub. L. No. 101-194, \xc2\xa7 404,\n103 Stat. 1716, 1750. The Federal Personnel Manual\xe2\x80\x99s interpretation was public\nand in force at both times. In making these amendments, Congress did not disturb\nthe consistent administrative interpretation that a portion of any day worked counts\nas a full day. \xe2\x80\x9cIt is well established that when Congress revisits a statute giving\nrise to a longstanding administrative interpretation without pertinent change, the\n\xe2\x80\x98congressional failure to revise or repeal the agency\xe2\x80\x99s interpretation is persuasive\nevidence that the interpretation is the one intended by Congress.\xe2\x80\x99\xe2\x80\x9d Schor, 478 U.S.\nat 846 (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 274\xe2\x80\x9375 (1974)). We\nsee no reason to depart from that principle here.\nB.\nThe memorandum attached to your letter notes that the Attorney General\xe2\x80\x99s\n1962 Opinion, 42 Op. Att\xe2\x80\x99y Gen. at 117, referred to the Hatch Act in discussing\napplication of the pre-existing conflict of interest laws to intermittent consultants.\nAt that time, the Hatch Act generally applied to an intermittent employee throughout any day on which he did some work for the government. The Hatch Act and its\nimplementing regulations have since been amended, and the Act now applies to an\nintermittent employee only when he is on duty. See 5 C.F.R. \xc2\xa7 734.601 (2006).\nTherefore, you contend, \xe2\x80\x9c[s]ince the Attorney General relied on how the Hatch Act\napplied to SGEs to guide the application of 18 U.S.C. 203 and 205, it is logical\nthat he will continue to apply Hatch Act criteria\xe2\x80\x9d and thus should count days of\nservice \xe2\x80\x9con the \xe2\x80\x98on duty\xe2\x80\x99 or hourly basis.\xe2\x80\x9d DoD Letter, Attachment, Hatch Act at\n1. But the Attorney General\xe2\x80\x99s 1962 Opinion did not, in fact, consider the application of 18 U.S.C. \xc2\xa7\xc2\xa7 203 and 205, which did not then exist. The 1962 Opinion\n\xe2\x80\x9cwas written before enactment of Pub. L. No. 87-849,\xe2\x80\x9d which created the category\nof SGEs, and it \xe2\x80\x9caddressed problems largely resolved by these [later] amendments.\xe2\x80\x9d 1982 Letter at 1. When the 1963 Presidential Memorandum later discussed the rule for counting days\xe2\x80\x94an issue raised by the amendments passed after\nthe 1962 Opinion\xe2\x80\x94it made no reference to the Hatch Act (or to the 1962 Opinion).\nThe 1962 Opinion, moreover, did not suggest that the Hatch Act had some\nspecial significance in construing the terms of conflict of interest laws more\ngenerally. The 1962 Opinion sought to answer the question under the earlier\nconflict of interest laws \xe2\x80\x9cwhether or not an occasional or intermittent consultant or\nadviser is an \xe2\x80\x98officer or employee\xe2\x80\x99 at times when his services are not actually\nbeing used by the Government or, to put the question more precisely, the circum-\n\n20\n\n\x0cDays of Service by Special Government Employees\n\nstances in which these statutes may or may not apply to him.\xe2\x80\x9d 42 Op. Att\xe2\x80\x99y Gen. at\n115. It focused particularly on whether such an employee should be subject to the\nconflict of interest laws throughout his time on the agency\xe2\x80\x99s rolls or only on days\nhe actually worked. The Hatch Act presented a \xe2\x80\x9csomewhat analogous problem.\xe2\x80\x9d\nId. at 117. As then interpreted, the Hatch Act in most cases applied to an intermittent employee only on days he worked, but it also applied \xe2\x80\x9cat all other times\nduring [an employee\xe2\x80\x99s] service where his Government employment, despite its\nintermittent character, affords his principal means of livelihood or occupies a\nsubstantial portion of his time.\xe2\x80\x9d Id. (citation omitted). The 1962 Opinion suggested\nonly that a similar approach under the conflict of interest laws, \xe2\x80\x9cpursuant to\nregulations . . . might well be held by a court to reflect a sound interpretation of\nthe statutes.\xe2\x80\x9d Id. It did not suggest that the conflict of interest laws needed to be\ncoextensive with the Hatch Act, or even that they ordinarily would be.\nIndeed, whatever the rule for counting days, the application of the conflict of\ninterest laws to intermittent employees undoubtedly now differs from the application of the Hatch Act. For example, section 203 would bar an employee from\nreceiving a fee for his partner\xe2\x80\x99s work on a specific-party matter in which the\nemployee participated in the government, 18 U.S.C. \xc2\xa7 203(c)(1), even if the work\ntook place, and the fee was received, at times when the employee was not on duty\nand the Hatch Act did not apply.\nNor are we persuaded that the change in the policies on paying experts and\nconsultants under 5 U.S.C. \xc2\xa7 3109 (2000) supports abandoning the longstanding\nrule for counting partial days served by SGEs. The memorandum attached to your\nletter states that, under the regulations in existence before 1995, pay for consultants and temporary employees had to be computed on a daily rate. Since then,\nhowever, \xe2\x80\x9cAgencies and Departments . . . have authority to pay experts and\nconsultants by the hour,\xe2\x80\x9d so \xe2\x80\x9cthere is no longer a requirement to compute service\nby days.\xe2\x80\x9d DoD Letter, Attachment, Employment of Experts and Consultants\n(Counting Days or Hours). As OGE notes, however, \xe2\x80\x9csince the definition of SGE\nexpressly includes unpaid employees, it is not apparent . . . why the methods used\nby the Government to calculate compensation should have any special bearing\xe2\x80\x9d on\nthe method for counting days under the conflict of interest laws. OGE Letter at 3.\nSee generally 18 U.S.C. \xc2\xa7 202(a) (SGE includes employees \xe2\x80\x9cretained, designated,\nappointed, or employed . . . with or without compensation\xe2\x80\x9d). We are aware of no\nindication that the rules on compensating paid SGEs have played any part in the\nlongstanding interpretation of how days served by SGEs should be computed.\nEven if the payment of experts and consultants under 5 U.S.C. \xc2\xa7 3109 could\npotentially bear on the computation of days under 18 U.S.C. \xc2\xa7\xc2\xa7 203 and 205, it\nwould tend to support the existing counting rules as the better interpretation of the\nmeaning of sections 203 and 205 upon their enactment. DoD\xe2\x80\x99s observation that\nbefore 1995, \xe2\x80\x9cpay for consultants was computed only on the daily rate\xe2\x80\x9d rather than\non an hourly rate, DoD Letter, Attachment, Employment of Experts and Consult-\n\n21\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nants (Counting Days or Hours), tends to suggest that, at the time the legislation\nwas enacted, Congress understood \xe2\x80\x9cdays\xe2\x80\x9d of service to mean calendar days on\nwhich the SGE had performed work. The fact that, over thirty years after enactment (and even six years after the most recent minor amendments), agencies\ngained the flexibility to pay consultants on an hourly basis cannot change that\nunderstanding of the statutory language.\nWe therefore conclude that the longstanding interpretation under which a partial day of work counts as a full day for purposes of the sixty-day limit in\n18 U.S.C. \xc2\xa7\xc2\xa7 203 and 205 is well founded and should not be overturned. 4\nSTEVEN G. BRADBURY\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n4\n\nOGE has interpreted the 60-day period to exclude days on which an SGE engages in only de\nminimis work, such as making a brief telephone call to confirm the date of a meeting. OGE Letter at 2\nn.1; see also Manning, Federal Conflict of Interest Law at 28 (concluding that while \xe2\x80\x9cthe employee\nwill be considered to have worked a day for the government if he has worked part of the day,\xe2\x80\x9d \xe2\x80\x9cthere is\ndoubtless a de minimis limitation on this method of computing; a one-minute telephone call in which\nthe consultant agrees to show up on the following Thursday is hardly enough in itself to count as a\n\xe2\x80\x98day\xe2\x80\x99 of his one hundred thirty allotted days\xe2\x80\x9d). Furthermore, OGE recently issued additional guidance\nidentifying other possible de minimis activities. See Memorandum for Designated Agency Ethics\nOfficials Regarding Counting Days of Service for Special Government Employees, Informal Advisory\nMem. 07x01, 2007 WL 5065667 (Jan. 19). These activities include uncompensated work limited to\nstrictly administrative matters (such as filling out personnel paperwork), uncompensated brief\ncommunications (even if substantive), and uncompensated brief periods of reading or other preparation\noutside the government workplace. OGE\xe2\x80\x99s guidance mitigates some of the effects the existing counting\nrule may have on DoD\xe2\x80\x99s ability to attract and retain consultants as SGEs. It also weighs against any\nargument that the practical administrative demands of the government require a change to the existing\nrule.\n\n22\n\n\x0c'