b'Constitutionality of Federal Government Efforts in\nContracting With Women-Owned Businesses\nThis statement presents the Justice Department\xe2\x80\x99s views on the federal government\xe2\x80\x99s efforts to contract\nwith women-owned businesses in a manner consistent with the Constitution and federal statutes.\nBecause the Justice Department\xe2\x80\x99s position on federal contracting programs that employ gender\npreferences is based on constitutional and legal standards that are not specific to the program\naddressed by the recently published Small Business Administration rule, the statement focuses on\nthe legal standards that govern the Department\xe2\x80\x99s approach to such programs generally.\n\nJanuary 16, 2008\n\nTESTIMONY BEFORE THE HOUSE COMMITTEE ON SMALL BUSINESS\nThank you Chairwoman Velazquez, Ranking Member Chabot, and Members of\nthe Committee for the opportunity to appear here today to discuss the Justice\nDepartment\xe2\x80\x99s views on the federal government\xe2\x80\x99s efforts to contract with womenowned businesses in a manner consistent with the Constitution and federal\nstatutes.\nOne of the most recent developments in this area is the Small Business `Administration\xe2\x80\x99s (\xe2\x80\x9cSBA\xe2\x80\x99s\xe2\x80\x9d) publication of a proposed rule implementing the WomenOwned Small Business (\xe2\x80\x9cWOSB\xe2\x80\x9d) Federal Contracting Program authorized by\nPublic Law 106-554. That particular rule is addressed in SBA Administrator\nPreston\xe2\x80\x99s testimony before the Committee. For that reason, and because the Justice\nDepartment\xe2\x80\x99s position on federal contracting programs that employ gender\npreferences is based on constitutional and legal standards that are not specific to\nthe program addressed by the recently published SBA rule, I will focus on the\nlegal standards that govern the Department\xe2\x80\x99s approach to such programs generally.\nAs Administrator Preston testified and the Committee is aware, the federal\ngovernment has taken a number of measures to increase the participation of\nwomen-owned small businesses in federal government contracting. Most of these\nefforts assist women-owned small businesses by improving their ability to\ncompete with other small businesses for federal contracts, not by shielding them\nfrom such competition through gender-based restrictions on bidding opportunities.\nThat said, one form of agency assistance that is authorized, though not required,\nby federal statute is the reservation, or set-aside, of certain contracts for competition only by \xe2\x80\x9csmall business concerns owned and controlled by women.\xe2\x80\x9d 15\nU.S.C. \xc2\xa7 637(m)(2). Federal agencies that employ such set-asides in their contracting programs must engage in gender discrimination among potential contract\nrecipients because the set-asides require the contracting agencies to exclude\notherwise qualified businesses from competing for certain contracts based solely\non the degree to which those businesses are owned or controlled by men.\nTo be constitutional, federal programs that discriminate on the basis of gender\nin awarding government contracts must pass muster under the equal protection\n\n23\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\ncomponent of the Due Process Clause of the Fifth Amendment. See United States\nv. Virginia, 518 U.S. 515 (1996) (\xe2\x80\x9cVMI\xe2\x80\x9d); Miss. Univ. for Women v. Hogan, 458\nU.S. 718, 723\xe2\x80\x9324 (1982). The Justice Department\xe2\x80\x99s position on gender-based\ncontracting programs necessarily reflects this constitutional requirement because\nthe Department, like the rest of the Executive Branch, must construe and implement federal laws in a constitutional manner. The Department\xe2\x80\x99s position on\ngender-based contracting programs also reflects Supreme Court opinions and other\nfederal cases applying the Constitution\xe2\x80\x99s equal protection requirements to such\nprograms, because these are the cases that courts will consider in deciding whether\nspecific agency WOSB programs are constitutional. The Department\xe2\x80\x99s general\nposition on these matters serves as the basis for the Department\xe2\x80\x99s administration of\nits own programs, as well as for any guidance the Department may provide to\nother agencies.\nThe level of scrutiny that a government contracting program must satisfy in\norder to comply with equal protection depends on the type of preference at issue.\nPreferences, such as veterans\xe2\x80\x99 preferences, that do not depend on a recipient\xe2\x80\x99s race\nor gender are subject to rational basis scrutiny, which means courts will generally\nuphold them as constitutional if the government can demonstrate a rational basis\nfor adopting them. Preferences that are based on a recipient\xe2\x80\x99s race or gender are\nsubject to higher levels of constitutional scrutiny. Race-based preferences must\nsatisfy \xe2\x80\x9cstrict scrutiny,\xe2\x80\x9d which means that the government must prove that the\nspecific preference at issue is \xe2\x80\x9cnarrowly tailored\xe2\x80\x9d to serve a \xe2\x80\x9ccompelling government interest.\xe2\x80\x9d Gender-based preferences must satisfy \xe2\x80\x9cintermediate\xe2\x80\x9d or \xe2\x80\x9cheightened\xe2\x80\x9d scrutiny, which the Supreme Court has identified as considerably more\ndemanding than rational basis scrutiny, but distinct from the strict scrutiny the\nCourt applies to government preferences based on race.\nIn VMI, the 1996 case in which the Supreme Court considered the constitutionality of a government program that discriminated on the basis of gender, the Court\nemphasized that its decision to apply intermediate scrutiny did not excuse the\ngovernment from establishing an \xe2\x80\x9cexceedingly persuasive\xe2\x80\x9d justification for the\nprogram. Noting the \xe2\x80\x9cstrong presumption that gender classifications are invalid,\xe2\x80\x9d\nJustice Ginsburg\xe2\x80\x99s opinion for the Court explained that \xe2\x80\x9cskeptical scrutiny of\nofficial action denying rights or opportunities based on\xe2\x80\x9d a person\xe2\x80\x99s gender is\nnecessary to ensure that government programs, no matter how well-intentioned, do\nnot violate the hard-fought line of equal protection precedents rejecting the notion\nthat an individual\xe2\x80\x99s opportunity to \xe2\x80\x9cparticipate in and contribute to\xe2\x80\x9d a particular\nfield should depend on that individual\xe2\x80\x99s gender. Accordingly, the Court held that\nto justify a gender-based preference program under intermediate scrutiny, the\ngovernment bears the burden of showing, through evidence that is \xe2\x80\x9cgenuine\xe2\x80\x9d and\n\xe2\x80\x9cnot hypothesized or invented post hoc,\xe2\x80\x9d \xe2\x80\x9cat least that the [program] serves\n\xe2\x80\x98important governmental objectives and that the discriminatory means employed\xe2\x80\x99\nare \xe2\x80\x98substantially related to the achievement of those objectives.\xe2\x80\x99\xe2\x80\x9d 518 U.S. at\n532\xe2\x80\x9333.\n\n24\n\n\x0cFederal Government Efforts in Contracting With Women-Owned Businesses\n\nIt bears mention that at least one court\xe2\x80\x94the Seventh Circuit in an opinion by\nJudge Posner\xe2\x80\x94has questioned whether there is any meaningful practical difference between the exacting intermediate scrutiny standard the Supreme Court\narticulated in VMI and the strict scrutiny the Court applies to racial preferences.\nSee Builders Ass\xe2\x80\x99n of Greater Chi. v. Cnty. of Cook, 256 F.3d 642, 644 (7th Cir.\n2001). Whether or not this opinion raises a valid practical question, the Justice\nDepartment, like the majority of federal courts, adheres to the Supreme Court\xe2\x80\x99s\ndetermination in VMI that there is a distinction between intermediate and strict\nscrutiny.\nFederal courts applying this distinction to government programs for womenowned businesses have construed the \xe2\x80\x9cimportant governmental interest\xe2\x80\x9d aspect of\nintermediate scrutiny to mean that some degree of discrimination must have\noccurred in the economic sphere in which the program is administered in order for\nthe government to justify the program\xe2\x80\x99s constitutionality. The cases upholding\ngender-based preference programs under this standard emphasize the importance\nof the government\xe2\x80\x99s proof of such discrimination. Similarly, the cases invalidating\nprograms as unconstitutional under this standard emphasize the government\xe2\x80\x99s\nfailure to present evidence of discrimination in the economic sphere to which the\npreference program is directed.\nAlthough strict scrutiny also requires the government to prove discrimination in\njustifying racial preference programs, the federal courts\xe2\x80\x99 focus on the government\xe2\x80\x99s ability to prove discrimination in gender cases does not erase the distinction between strict and intermediate scrutiny. The Eleventh Circuit has explained\nthis distinction as follows: \xe2\x80\x9cWhile there is a difference between the evidentiary\nfoundation necessary to support a race-conscious affirmative action program and\nthe evidentiary foundation necessary to support a gender preference, that difference is one of degree, not of kind. In both circumstances, the test of the program is\nthe adequacy of evidence of discrimination, but in the gender context less evidence\nis required.\xe2\x80\x9d Eng\xe2\x80\x99g Contractors Ass\xe2\x80\x99n v. Metro. Dade Cnty., 122 F.3d 895, 901\n(11th Cir. 1997).\nDetermining exactly how much evidence of discrimination is needed to support\na gender-based, as opposed to race-based, preference program is, in the Eleventh\nCircuit\xe2\x80\x99s words, a \xe2\x80\x9cdifficulty\xe2\x80\x9d that all government entities face in considering\nwhether gender-based preference programs are constitutional. Federal cases\nupholding such programs do not generally distinguish between the evidence\nrequired to satisfy strict versus intermediate scrutiny in a way that readily allows\nthe government to determine that a particular study or other evidence of discrimination clearly goes far enough to justify a program under intermediate scrutiny,\nbut does not go so far as to satisfy unnecessarily the requirements of strict\nscrutiny. What is clear from the cases is that mere findings of disparity or underrepresentation are generally not sufficient to establish the constitutionality of a\ngender-based preference program, and that courts are likely to strike down such\n\n25\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nprograms if the government cannot show genuine and non-hypothetical evidence\nof discrimination in the economic sphere in which the program will operate.\nThe Justice Department\xe2\x80\x99s position on gender-based set-aside programs reflects\nthese cases and the simple lesson they offer federal entities considering such\nprograms: if those entities, which must establish and administer gender-based setasides in a constitutional manner, wish to maximize the chances that a particular\nprogram will survive constitutional scrutiny, it is both legally appropriate and\nlegally prudent to require evidence of discrimination before implementing the\nprogram. This position accords with the requirement that the federal government\nadminister all federal programs, including those benefiting women, in a constitutional manner, consistent with Supreme Court and other federal judicial precedents\nevaluating gender-based preference programs under intermediate scrutiny.\nELIZABETH P. PAPEZ\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n26\n\n\x0c'


b'Legality of Certain Nonmilitary Actions Against Iran\nUnder the International Em ergency Econom ic Powers A ct (IEEPA ), the President may\nimpose an em bargo on all imports from Iran and, subject to certain conditions, a\nprohibition on exports of food and medicine to Iran. The IE E PA also authorizes him to\norder the closure o f Iranian business offices located in the United States.\nW hile the President may have some statutory and constitutional pow er to control third\nparty transactions with Iran, particularly those designed to circum vent the impact of\nsanctions imposed by the United States directly on Iran, his authority to impose a\ngeneral secondary boycott against those trading with Iran may be limited. It is thus not\nclear whether, under existing laws and treaties, airlines and shipping companies that\nserve Iran may be denied landing rights and fuel purchases in the United States.\nPresidential action to block international satellite communications from Iran to the United\nStates is clearly authorized only insofar as it is part of a more general ban on\ntransactions with Iran and its nationals.\nThe President\xe2\x80\x99s authority to impose a ban on travel by American citizens to Iran may\nhave a more limited applicability to journalists. See United Slates v. O \xe2\x80\x99Brien, 39 1 U.S.C.\n367 (1968). M oreover, restrictions on travel to Iran would have no immediate effect on\npersons already in that country. How ever, the IE E PA could be used to impose a broad\nban on financial transactions between Americans overseas and Iran or its nationals.\nThe IE E PA would authorize a broad prohibition against all transactions between A m eri\xc2\xad\ncans relating to Iran, as long as Iran has even an indirect interest in the transaction;\nhowever, it is not possible under the IE E PA to reach \xe2\x80\x9cpurely dom estic\xe2\x80\x9d transactions.\n\nApril 16, 1980\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nThis responds on an urgent basis to your request for our opinion\nregarding the legality of ten possible nonmilitary actions against Iran,\nmost or all of which would rely on the International Emergency\nEconomic Powers Act (IEEPA), 50 U.S.C. \xc2\xa7 1701, et seq. (Supp. I\n1977). We will respond to the proposals in the order in which they\nhave been presented.\n1. Embargo All Imports From Iran\nThis action is clearly legal under the IEEPA. The statute explicitly\nallows the prohibition of transfers in which foreign nationals, as well as\n\n223\n\n\x0cforeign governments, have an interest.1 The pertinent legislative history\nenvisions total trade embargoes, reflecting well-established practice\nunder the IEEPA\xe2\x80\x99s predecessor statute, the Trading With the Enemy\nAct of 1917. See H.R. Rep. No. 459, 95th Cong., 1st Sess. (1977)\n(hereafter \xe2\x80\x9c 1977 House Report\xe2\x80\x9d); S. Rep. No. 466, 95th Cong., 1st Sess.\n(1977).2\n2. Prohibit Food and Medicine Exports to Iran\nThe IEEPA also authorizes this action, although it sounds a note of\ncaution. Under \xc2\xa7 1702(b) of the Act,\n(b) The authority granted to the President by this section\ndoes not include the authority to regulate or prohibit,\ndirectly or indirectly\xe2\x80\x94\n*\n\n*\n\n*\n\n*\n\n*\n\n(2) donations, by persons subject to the jurisdiction of the\nUnited States, of articles, such as food, clothing, and\nmedicine, intended to be used to relieve human suffering,\nexcept to the extent that the President determines that\nsuch donations (A) would seriously impair his ability to\ndeal with any national emergency declared under section\n1701 of this title, (B) are in response to coercion against\nthe proposed recipient or donor, or (C) would endanger\nArmed Forces of the United States which are engaged in\nhostilities or are in a situation where imminent involve\xc2\xad\nment in hostilities is clearly indicated by the circum\xc2\xad\nstances.\nOn its face, this provision applies only to donations, not commercial\ntransactions, and even when applicable may be satisfied by a Presiden\xc2\xad\ntial \xe2\x80\x9cdetermination\xe2\x80\x9d under (b)(2)(A) that it would seriously impair the\nPresident\xe2\x80\x99s ability to deal with the emergency. It is not clear whether\nthis determination is to be the subject of a report to Congress under\n\xc2\xa7 1703 of the Act, although it could easily be included therein. To give\n1Section 1702(a)(1) reads as follows:\nA t the times and to the extent specified in section 1701 o f this title, the President may,\nunder such regulations as he m ay prescribe, by means o f instructions, licenses, or\notherw ise\xe2\x80\x94\n(A ) investigate, regulate, o r prohibit\xe2\x80\x94\n(ij any transactions in foreign exchange,\n(ii) transfers of credit or paym ents betw een, by, through, or to any banking\ninstitution, to the extent that such transfers or paym ents involve any interest\no f any foreign country or a national thereof,\n(iii) the im porting o r exporting o f currency or securities; and\n(B) investigate, regulate, direct and com pel, nullify, void, prevent or prohibit, any\nacquisition, holding, w ithholding, use, transfer, w ithdraw al, transportation, im\xc2\xad\nportation o r exportation of, or dealing in, o r exercising any right, pow er, or\nprivilege w ith respect to, or transactions involving, any property in w hich any\nforeign country or a national thereof has any interest; by any person, o r with\nrespect to any property, subject to the jurisdiction o f the United States.\n2T he legislative history o f the Export A dm inistration A ct o f 1979, 50 U.S.C. A pp. \xc2\xa72401 et seq..\nconfirm s that total trade em bargoes are to be accom plished under the IE E P A , rather than by export\ncontrols. See H.R. Conf. Rep. No. 482, 96th Cong., 1st Sess. 46 (1979).\n\n224\n\n\x0cmaximum effect to the congressional policy found in \xc2\xa7 1702(b)(2), an\nembargo on commercial food and medicine exports could contain an\nexception in the terms of the statute to allow donations of these items\n\xe2\x80\x9cto relieve human suffering.\xe2\x80\x9d\nA separate source of authority to control the export of food, but not\nmedicine, is the Export Administration Act of 1979, 50 U.S.C. App.\n\xc2\xa7 2401 et seq. To invoke this statute, no executive order is necessary,\nalthough there is a requirement for a report to Congress.3 Under \xc2\xa7 6 of\nthe Act, \xe2\x80\x9cthe President may prohibit or curtail the exportation of any\ngoods . . . to the extent necessary to further significantly the foreign\npolicy of the United States. . . Section 6(f), however, provides that\n\xc2\xa7 6 does not authorize export controls on medicine or medical supplies.\n(At the same time, it explicitly disclaims any effect on authority under\nthe IEEPA to control these goods.)\nRestrictions on food exports are authorized but not favored by the\nExport Act. Section 6(f) provides that it \xe2\x80\x9cis the intent of Congress that\nthe President not impose export controls . . . on any goods . . . if he\ndetermines that the principal effect of the export . . . would be to help\nmeet basic human needs.\xe2\x80\x9d And \xc2\xa7\xc2\xa72(9) and 3(11) urge him to \xe2\x80\x9cmini\xc2\xad\nmize\xe2\x80\x9d restrictions on the export of agricultural products. Of course,\ngrain shipments to the Soviet Union are currently controlled under this\nstatute.\n3. Close the New York Offices of Iranian Firms\nIf Iran Air or another Iranian firm is an \xe2\x80\x9cinstrumentality\xe2\x80\x9d or \xe2\x80\x9ccon\xc2\xad\ntrolled entity\xe2\x80\x9d of the government of Iran, Executive Order No. 12,170\n3 C.F.R. 457 (1979), has already \xe2\x80\x9cblocked\xe2\x80\x9d all \xe2\x80\x9cinterests\xe2\x80\x9d in it. The\nTreasury Department has issued Iranian Assets Control Regulations, 31\nC.F.R. Part 535, which may be broad enough to allow Treasury to\norder such offices closed without even amending the regulations.4 Such\nan interpretation should not run afoul of the statute, which includes\nauthority in \xc2\xa7 1702(a)(1)(B) to \xe2\x80\x9cprohibit . . . exercising any right,\npower, or privilege\xe2\x80\x9d with respect to subject property. To the extent\nthere is any doubt whether the current regulations authorize ordering\nbusinesses to close, an amendment could assert that authority.\n3 The substantive and procedural requirem ents o f the pertinent portions of the Export A dm inistra\xc2\xad\ntion A ct are outlined in our mem orandum o f April 11, 1980, to the Special Assistant to the President\nfor Consumer Affairs. [N o t e :\xe2\x80\x94T he cited memorandum is published in this volum e at p. 567 infra.\nEd.]\n4T he operative section o f the regulations, \xc2\xa7 535.201(a), provides that "no property subject to the\njurisdiction o f the United States . . . in which . . . Iran has any interest . . . may be transferred . . .\nor otherwise dealt in except as authorized.\xe2\x80\x9d T he regulations then define \xe2\x80\x9c Iran" broadly to include\ncontrolled businesses (\xc2\xa7 535.301). \xe2\x80\x9cT ransfer\xe2\x80\x9d is defined broadly enough to include the creation of\ninformal licenses such as those enjoyed by business invitees: \xe2\x80\x9cany act or transaction, w hether or not\nevidenced by w riting, . . . the . . . effect o f which is to create . . . any right . . . privilege, or\ninterest w ith respect to any property.\xe2\x80\x9d (\xc2\xa7 535.310) \xe2\x80\x9c Interest\xe2\x80\x9d is defined to mean \xe2\x80\x98\xe2\x80\x98an interest o f any\nnature w hatsoever.\xe2\x80\x9d (\xc2\xa7 535.312)\n\n225\n\n\x0cFor those Iranian businesses that are not instrumentalities of the\ngovernment of Iran, an executive order applying the IEEPA to transac\xc2\xad\ntions of Iranian nationals could easily have the effect of forcing closure.\nIndeed, the principal problem here appears to be in avoiding overbroad\neffects from an order that is designed to reach only some Iranian\nbusinesses. For presumably there would be no attempt to block every\xc2\xad\nday business transactions (such as banking) by Iranian nationals prop\xc2\xad\nerly present in this country. To avoid undue complexity, an executive\norder could provide that only firms specifically designated by the\nTreasury Department would be affected.\n4. Deny Foreign Airlines That Serve Iran Landing Rights or Fuel\nPurchases in the United States\nThis option raises a major unresolved issue under the IEEPA: to\nwhat extent may it be used to control foreign countries or nationals that\nare not the source of the threat that created the emergency? The terms\nof the statute are broad enough to reach third party conduct, as long as\nsome foreign country or national is involved: \xc2\xa7 1702(a)(1)(B) grants the\nPresident authority over property in which \xe2\x80\x9cany foreign country or a\nnational thereof has any interest.\xe2\x80\x9d There must also be involved \xe2\x80\x9cany\nperson\xe2\x80\x9d or \xe2\x80\x9cany property\xe2\x80\x9d that is subject to the jurisdiction of the\nUnited States. Our national jurisdiction is generally held to extend to\nour citizens, wherever found, and to anyone else found within Ameri\xc2\xad\ncan territory. See generally Restatement (Second), Foreign Relations\nLaw of the United States, \xc2\xa7 10 (1965).\nThese provisions of \xc2\xa7 1702(a) suggest the presence of authority to\ncontrol at least some third country transactions that are subject to our\njurisdiction. Such a reading would reflect the obviously broad phraseol\xc2\xad\nogy of the IEEPA, and would help to forestall simple circumventions\nof the statute by resort to agency relationships. Moreover, this interpre\xc2\xad\ntation would respect a principal limit to presidential discretion imposed\nby Congress in drafting the IEEPA: denial of authority to regulate\n\xe2\x80\x9cpurely domestic\xe2\x80\x9d transactions. 1977 House Report, supra, at 11.\nNevertheless, persuasive arguments that the IEEPA should be avail\xc2\xad\nable to control third country transactions that are designed to circum\xc2\xad\nvent its direct impact do not justify regulating other third country\ntransactions as part of a general \xe2\x80\x9csecondary boycott.\xe2\x80\x9d Although the\nIEEPA and its predecessor statute have long been used to embargo\ntrade with offending nations, we know of no instance of a secondary\nboycott, nor of any particular support for one in the legislative history.\nIt seems clear, however, that the President could find that a foreign\ncarrier\xe2\x80\x99s providing air service to Iran poses an unusual threat to the\nforeign policy of the United States and that all transactions with that\ncarrier should be prohibited.\n226\n\n\x0cIt may also be possible for the President to draw authority for an\naction designed to free the hostages, such as a secondary boycott, from\nthe provisions of an 1868 statute, now 22 U.S.C. \xc2\xa7 1732:\nWhenever it is made known to the President that any\ncitizen of the United States has been unjustly deprived of\nhis liberty by or under the authority of any foreign\ngovernment, it shall be the duty of the President forth\xc2\xad\nwith to demand of that government the reasons of such\nimprisonment; and if it appears to be wrongful and in\nviolation of the rights of American citizenship, the Presi\xc2\xad\ndent shall forthwith demand the release of such citizen,\nand if the release so demanded is unreasonably delayed or\nrefused, the President shall use such means, not amount\xc2\xad\ning to acts of war, as he may think necessary and proper\nto obtain or effectuate the release; and all the facts and\nproceedings relative thereto shall as soon as practicable be\ncommunicated by the President to Congress.\nWe are unaware of any instances in which this provision has been\ninvoked. It was passed in response to a dispute with Great Britain after\nthe Civil War, in which that nation was trying its former subjects, who\nhad become naturalized Americans, for treason. The House version of\nthe bill, which would have authorized the President to suspend all\ncommerce with the offending nation and to round up its citizens found\nin this country as hostages, was replaced by the present language which\nwas in the Senate bill. Cong. Globe, 40th Cong., 2d Sess. 4205, 4445-46\n(1868). It is not clear whether this change was meant to restrict the\nPresident to measures less drastic than those specified in the House bill.\nIt is also not clear what Congress meant by the phrase \xe2\x80\x9cnot amounting\nto acts of war.\xe2\x80\x9d At least Congress did not seem to be attempting to\nlimit the President\xe2\x80\x99s constitutional powers.\nTo the foregoing statutory sources of presidential authority must be\nadded his broad constitutional power in foreign affairs. See generally\nUnited States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). The\nPresident should be able to take actions in foreign affairs for which\nCongress has not explicitly denied him authority. See Youngstown Sheet\n& Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concur\xc2\xad\nring). A secondary boycott against those trading with Iran, ordered to\nhelp free the hostages in Tehran, should be within the broad constitu\xc2\xad\ntional powers of the President, since the statutes do not explicitly deny\nhim such power\xe2\x80\x94indeed, 22 U.S.C. \xc2\xa7 1732 provides him some general\nsupport in this particular situation.\nThere may, however, be limitations on presidential power in applica\xc2\xad\nble aviation agreements with particular countries. The terms by which\nwe grant foreign airlines the right to provide scheduled service here are\nset out in bilateral agreements with individual countries. We understand\n227\n\n\x0cfrom the State Department that these agreements do not provide for\nsuspension in the present circumstances. (An examination of each bilat\xc2\xad\neral treaty and its amendments would be necessary to verify this for all\ncountries that may be involved. Until that review occurs, we cannot\nrecommend this action.)\nThe Chicago Convention on International Civil Aviation, Dec. 7,\n1944, 61 Stat. 1180, T.I.A.S. No. 1591, 15 U.N.T.S. 295, 356, includes a\nprovision that in case of war or national emergency the provisions of\nthe Convention \xe2\x80\x9cshall not affect the freedom of action\xe2\x80\x9d of parties to the\nConvention (Art. 89). That Convention, however, only gives parties the\nprivilege of making overflights and technical stops for non-scheduled\nflights. Art. 5. The International Air Services Transit Agreement, Dec.\n7, 1944, 59 Stat. 1693, E.A.S. No. 487, 84 U.N.T.S. 389, confers similar\nprivileges for scheduled airlines, and incorporates the provisions of the\nChicago Convention (Section 2). The bilateral agreements do not, by\ntheir terms, however, incorporate the Chicago Convention provision;\nthey are essentially self-contained agreements.5\n5. Deny Vessels or Companies Serving Iran Access to U.S. Ports or\nFueling Facilities\nSee the analysis above under option 4 for our views on general\npresidential authority for this. We have not yet had an opportunity to\nconsider the possible effect of the maritime statutes.\n6. Block International Satellite Communications From Iran to the U.S. at\nSatellite Ground Stations in the U.S.\nThe President may have statutory authority to block international\nsatellite communications between Iran and the United States. Under 47\nU.S.C. \xc2\xa7 721(a), the President is authorized to:\n(4) exercise such supervision over relationships of\n[COMSAT] with foreign governments or entities or with\ninternational bodies as may be appropriate to assure that\nsuch relationships shall be consistent with the national\ninterest and foreign policy of the United States.\nThe purpose of this provision appears to have been to prevent\nCOMSAT from affecting U.S. foreign policy in its contractual arrange\xc2\xad\nments, not to authorize the President to control the substance of its\ncommunications. See 108 Cong. Rec. 16,603-05 (1962). Thus, the\nCOMSAT statute may provide useful support for an action that is part\nof a broader foreign policy purpose of severing transactions with Iran.\n5 T he Joint Statem ent on International Terrorism at the Bonn Conference may provide some basis\nfor calling on the signatories o f the Bonn C onference not to serve Iran because, according to the State\nD epartm ent, Iran is presently harboring tw o international aircraft hijackers.\n\n228\n\n\x0cIt would not support actions directed to the content of particular\ntransmissions.\nSection 1702(b) of the IEEPA provides that:\nThe authority granted to the President by this section\ndoes not include the authority to regulate or prohibit,\ndirectly or indirectly\xe2\x80\x94\n(1) any postal, telegraphic, telephonic, or other per\xc2\xad\nsonal communication, which does not involve a\ntransfer of anything of value. . . .\nOn its face, this provision goes no further than to deny the President\nany authority under the IEEPA, without reference to powers he may\npossess otherwise. The House report emphasizes that it did \xe2\x80\x9cnot intend\n. . . to authorize regulation or prohibition of the collection and dissemi\xc2\xad\nnation of news.\xe2\x80\x9d 1977 House Report at 15. This reflects an underlying\nconstitutional concern:\n[W]hile it should be the purpose of the legislation to\nauthorize tight controls in time of national emergency,\nthese controls should not extend to the total isolation of\nthe people of the United States from the people of any\nother country. Such isolation is not only unwise from a\nforeign policy standpoint, but enforcement of such isola\xc2\xad\ntion can also entail violation of First Amendment rights of\nfreedom of expression if it includes, for example, prohibi\xc2\xad\ntions on exchange of printed matter, or on humanitarian\ncontributions as an expression of religious convictions.\nId. at 11.\nWe are constrained to take a cautious view of statutory authority for\nthis presidential option because of the Supreme Court\xe2\x80\x99s emphasis on the\nneed for clear statutory authority for executive action significantly\naffecting constitutional liberties. See Kent v. Dulles, 357 U.S. 116, 129\n(1958). Thus, we do not regard either the COMSAT statute or 22\nU.S.C. \xc2\xa7 1732 as sufficiently clear warrant for presidential action di\xc2\xad\nrected at satellite communications themselves, and not part of a broader\nrestriction. Nor does a more limited ban on commercial transmissions\ncommend itself. Distinctions between these communications and news\nor personal communications are tricky at best, and even commercial\nspeech now enjoys some constitutional protection. See generally Virginia\nState Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425\nU.S. 748 (1976).\nThe First Amendment issue can take either of two forms. Any\npresidential action that constitutes a direct restraint on the content of\nspeech must meet a very high standard of review. The government\nmust show a \xe2\x80\x9ccompelling interest,\xe2\x80\x9d a close logical nexus between that\ninterest and the restriction, and a narrow tailoring of the restriction to\n229\n\n\x0cavoid overbreadth. See, e.g., Police Department o f the City o f Chicago v.\nMosley, 408 U.S. 92, 95-96 (1972). And if the scheme involves a prior\n\nrestraint by licensing particular communications, it bears \xe2\x80\x9ca heavy pre\xc2\xad\nsumption against its constitutional validity,\xe2\x80\x9d New York Times Co. v.\nUnited States, 403 U.S. 713, 714 (1971). In the abstract, it is difficult to\nenvision a justification for a direct ban on satellite communications that\ncould clear these hurdles. If attempted, it should include an exception\nin the terms of \xc2\xa7 1702(b)(1) of the IEEPA.\nAn indirect restriction on speech has a better chance of success.\nHere, that issue would arise if a ban on satellite communications were\npart of a more general ban on financial transactions with Iran and its\nnationals. See Kleindienst v. Mandel, 408 U.S. 753 (1972), upholding the\ngovernment\xe2\x80\x99s right to exclude an alien lecturer under speech-neutral\ncriteria in the immigration laws, despite the undoubted rights of Ameri\xc2\xad\ncans to receive ideas from abroad. The Supreme Court\xe2\x80\x99s clearest state\xc2\xad\nment of the criteria for reviewing indirect restraints on speech occurred\nin United States v. O\'Brien, 391 U.S. 367, 377 (1968). The Court set\nforth four requirements necessary to sustain a restriction: (1) whether it\nis within the constitutional power of the government; (2) whether it\nfurthers an important or substantial governmental interest; (3) whether\nthe governmental interest is unrelated to the suppression of free expres\xc2\xad\nsion; and (4) whether the incidental restriction on alleged First Amend\xc2\xad\nment freedoms is any greater than is essential to the furtherance of that\ninterest.6 Thus, a presidential action against Iran that sweeps up satellite\ncommunications in a wider net should be permissible. Again, an excep\xc2\xad\ntion in the terms of \xc2\xa7 1702(b)(1) would be necessary to the extent the\nIEEPA is the source of authority, and would help to satisfy the O\'Brien\ntest.\n7. Block Iran\xe2\x80\x99s International Communications by\nDenying Access to Intelsat\nThe Intelsat Agreement, Aug. 20, 1971, 23 U.S.T. 3813 T.I.A.S. No.\n7532, does not have a specific provision which allows a member\xe2\x80\x99s\ncommunications to be cut off. The provisions regarding involuntary\nwithdrawal (Art. XVI) all seem to be predicated on failure of a party\nto live up to its obligations under the Intelsat Agreement. We have no\ninformation as to whether Iran is in compliance with the Agreement.\nThe State Department has suggested that denial of access could be\naccomplished by an extraordinary assembly of the parties and could be\n6T he O\'Brien case was applied in a series o f low er court decisions w hich upheld restrictions on the\nim portation o f publications and films under the T rading w ith the Enem y A ct, the IE E P A \xe2\x80\x99s predeces\xc2\xad\nsor. Teague v. Regional Comm\'r o f Customs, 404 F.2d 441, 445 (2d Cir. 1968), cert, denied, 394 U.S. 977\n(1969); American Documentary Files v. Secretary o f the Treasury, 344 F. Supp. 703 (S.D.N.Y. 1972); cf.\nWelch v. Kennedy, 319 F. Supp. 945 (D .D .C . 1970). A similar conclusion was reached by the Third\nCircuit in Veterans and Reservists for Peace in Vietnam v. Regional Comm > o f Customs, 459 F. 2d 676\n(3d Cir.), cert, denied. 409 U.S. 933 (1972).\n\n230\n\n\x0caccomplished by a two-thirds vote of the 102 members. (Art. VII (e)\nand (0)- There is no precedent for this, and it is not clear to us whether\nthis power exists.\n8. Prohibit Financial Transactions Involving U.S. Journalists in Iran, or\nOtherwise Limit Travel to Iran\nUnder stated conditions, the President may prevent American citi\xc2\xad\nzens from traveling to particular countries at particular times.7 In 1978,\nCongress dealt with this subject in an amendment to 22 U.S.C. \xc2\xa7 211a,\nthe statute authorizing the Secretary of State to issue passports. The\namendment provided:\nUnless authorized by law, a passport may not be desig\xc2\xad\nnated as restricted for travel to or for use in any country\nother than a country with which the United States is at\nwar, where armed hostilities are in progress, or where\nthere is imminent danger to the public health or the physi\xc2\xad\ncal safety of United States travellers.\nPresent circumstances obviously satisfy the last condition of \xc2\xa721 la;\nthe President may restrict future travel to Iran. See Zemel v. Rusk, 381\nU.S. 1 (1965), upholding the President\xe2\x80\x99s power to refuse to validate\npassports for Cuba under an earlier version of this statute. Nevertheless,\ntravel restrictions applied to journalists may pose special problems. The\npress could bring a lawsuit challenging the government to make a\nfactual showing sufficient to satisfy O \xe2\x80\x99Brien, supra, concerning whether\nthere is a need to include journalists in a travel ban in view of their\nsafety to date. Such a suit would probably require at least in camera\ndisclosure of the government\xe2\x80\x99s reasons for the restrictions. Moreover,\nrestrictions on travel to Iran would have no immediate effect on per\xc2\xad\nsons already in that country.\nThe IEEPA could be used for a broad ban on financial transactions\nbetween Americans and Iran or its nationals. Such an order would\napply to Americans overseas, and would make further financial transac\xc2\xad\ntions with Iranians subject to penalty.\n\n7This pow er to restrict the travel o f A m erican citizens generally to a particular place at a particular\ntime is distinct from the pow er to inhibit the travel o f an individual by revoking his passport on the\nbasis of a determ ination that his activities "are causing or are likely to cause serious dam age to the\nnational security o r the foreign policy o f the United States." See 22 C .F.R . \xc2\xa7 51.70(b)(4). T he existence\nand scope o f this latter pow er are currently being litigated. See Agee v. Vance, 483 F. Supp. 729\n(D .D .C . 1980), appeal docketed. [N o t e : In the cited case, the Supreme C ourt upheld the President\xe2\x80\x99s\npow er, under applicable laws and regulations, to revoke a U.S. citizen\'s passport on national security\nand foreign policy grounds. Haig v. Agee, 453 U.S. 280 (1981). Ed.]\n\n231\n\n\x0c9. Divert Equipment From the Suspended Iran\nForeign Military Sales Pipeline\nThe present Iranian government took the initiative in canceling the\ngreat bulk of foreign military sales contracts with the United States.\nNear the end of last year, the United States government suspended the\nrest pursuant to terms of the contracts. It is legally possible that the\ncontracts could still be reinstituted since they have not been cancelled.\nWe understand from the State Department that nothing in the contracts\nwould preclude our making other disposition of the articles being\nprocured while the contracts are suspended.\n10. A Broad Prohibition Against All Transactions Between Americans\nRelating to Iran\nThe preceding analysis suggests that very broad restrictions are per\xc2\xad\nmissible under the IEEPA. A caveat is in order, however. The statute\nis limited to property in which a foreign country or foreign national has\nan interest. As we noted above, Treasury\xe2\x80\x99s regulations define the opera\xc2\xad\ntive terms of \xc2\xa7 1702 to include many kinds of legal interests and their\ndirect or indirect transfer. Thus, it would seem possible to reach trans\xc2\xad\nactions in which Iran has an indirect interest, but it is not possible to\nreach \xe2\x80\x9cpurely domestic\xe2\x80\x9d transactions.\nJohn M . H arm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n232\n\n\x0c'


b'Release of Information Collected Under the\nAgricultural Marketing Agreement Act of 1937\nA provision in the appropriations act for the Departm ent o f Agriculture relating to the release of\ninformation collected under the Agricultural M arketing Agreement Act o f 1937 does not\nrestrict the use of such information in the Departm ent\xe2\x80\x99s rulemaking proceedings, in its\nprosecution o f enforcement proceedings, or in its defense o f regulatory actions under the 1937\nAct. The restriction was intended solely to limit the Departm ent\xe2\x80\x99s discretionary release of\ninformation to members o f the public in response to Freedom of Information Act or other\nrequests.\n\nJanuary 15, 1987\nM\n\nem orandum\n\nO p in io n\n\nD epa rtm en t\n\nfor th e\nof\n\nG eneral Co un sel,\n\nA g r ic u l t u r e\n\nThis responds to your request for our opinion on the effect of a provision in\nthe current appropriations act for the Department of Agriculture (USDA). The\nprovision in question relates to the release of information collected under the\nAgricultural Marketing Agreement Act of 1937,7 U.S.C. \xc2\xa7\xc2\xa7 601 et seq. (1937\nAct), and reads as follows:\nNone of the funds provided in this Act may be expended to\nrelease information acquired from any handler under the Agri\xc2\xad\ncultural Marketing Agreement Act of 1937, as amended: Pro\xc2\xad\nvided, That this provision shall not prohibit the release of infor\xc2\xad\nmation to other Federal agencies for enforcement purposes:\nProvided further. That this provision shall not prohibit the re\xc2\xad\nlease of aggregate statistical data used in formulating regula\xc2\xad\ntions pursuant to the Agricultural Marketing Agreement Act of\n1937, as amended: Provided further, That this provision shall\nnot prohibit the release of information submitted by milk\nhandlers.\nPub. L. Nos. 99-500, title VI, \xc2\xa7 631, 100 Stat. 1783, 1783-30 (1986) and 99591, title VI, \xc2\xa7 631, 100 Stat. 3341, 3341-30 (1986) (collectively, \xc2\xa7 631).\nYou wish to know whether and how \xc2\xa7 631 affects USDA\xe2\x80\x99s ability to use\ninformation collected by it under the 1937 Act in connection with enforcement\nand rulemaking proceedings initiated by it under the 1937 Act, as well as in\njudicial or administrative challenges to USDA actions initiated by private\n9\n\n\x0cparties. The particular examples with respect to which you seek our guidance\nall involve situations in which the information in question might be introduced\nby USDA as evidence in connection with its own rulemaking activities, its\nprosecution of enforcement proceedings, and its defense of regulatory actions\ntaken under the marketing order program established by the 1937 Act.\nFor reasons set forth in greater detail below, we believe that \xc2\xa7 631 does not\nrestrict USDA\xe2\x80\x99s ability to release information acquired from handlers under the\n1937 Act in the course of its administration and enforcement of that Act,\nregardless of whether the information is relevant in an administrative or a\njudicial context, and regardless of whether USDA is in the position of a\nplaintiff or a defendant. Rather, \xc2\xa7 631 was intended solely to limit USDA\xe2\x80\x99s\ndiscretionary release of information to members of the public, outside of the\nenforcement context, in response to requests under the Freedom of Information\nAct or otherwise.\nIn interpreting a statute, we look first to its text. Though couched in terms of\na limitation on the expenditure of appropriated funds, as a practical matter\n\xc2\xa7631 functions as a direct restriction on USDA\xe2\x80\x99s release of information\nacquired from handlers under the 1937 Act. On the other hand, precisely\nbecause \xc2\xa7 631 is a USDA appropriations limitation, it would seem to have no\neffect on other agencies\xe2\x80\x99 ability to use or disseminate the information in\nquestion.\nThere are three provisos to \xc2\xa7 631\xe2\x80\x99s restriction on the release of information,\nonly one of which is relevant here: the section explicitly does not prohibit\nrelease of information to \xe2\x80\x9cother Federal agencies for enforcement purposes.\xe2\x80\x9d 1\nWe believe that it would be anomalous to suppose that Congress intended to\nallow other federal agencies freely to use information collected by USDA for\ntheir own enforcement purposes, while at the same time denying a similar\nfreedom to USDA itself. Accordingly, we think that the ambiguously worded\n\xe2\x80\x9cenforcement\xe2\x80\x9d exception in \xc2\xa7 631 must be read to reflect and incorporate\nCongress\xe2\x80\x99 expectation that the section would not restrict USDA\xe2\x80\x99s ability to use\nany information collected by it under the 1937 Act to carry out its own\nauthorized enforcement functions.\nYet another feature of the statutory language supports this narrow reading of\n\xc2\xa7 631\xe2\x80\x99s intended scope. This is the provision\xe2\x80\x99s use of the term \xe2\x80\x9crelease\xe2\x80\x9d to\ndescribe what USDA may not do with information collected by it, as opposed\nto a broader term such as \xe2\x80\x9cdisclose.\xe2\x80\x9d The use of the term \xe2\x80\x9crelease\xe2\x80\x9d suggests a\nconcern with USDA\xe2\x80\x99s discretionary dissemination of information to the public,\nrather than an intent to inhibit authorized law enforcement activities. Where\nCongress has imposed restrictions on a federal agency\xe2\x80\x99s use of information in\nits possession, it has generally enacted laws prohibiting \xe2\x80\x9cdisclosure\xe2\x80\x9d of such\n1 The w ording o f this proviso is som ew hat am biguous, because it is not clear whether another agency\xe2\x80\x99s\n\xe2\x80\x9cenforcem ent p u rposes\xe2\x80\x9d \xe2\x80\x94 as distinct from U SD A \xe2\x80\x99s ow n enforcem ent purposes \xe2\x80\x94 will justify U SD A \xe2\x80\x99s\nrelease o f inform ation. In any event, because \xc2\xa7 631 restricts only U SD A \xe2\x80\x99s ability to release information, this\nprovision w ould not inhibit another agency to which the information was released by USDA under the\nproviso from in turn releasing it to nongovernm ental parties in the course o f its own authonzed activities\n\n10\n\n\x0cinformation.2 Moreover, although Congress has on occasion imposed restric\xc2\xad\ntions on an agency\xe2\x80\x99s ability to disclose information in its possession to other\nagencies, we would not, in the absence of a very clear indication in the statutory\nlanguage or legislative history, infer an intent to restrict an agency\xe2\x80\x99s ability\nitself to use information properly obtained by it to administer and enforce a\nstatute for which it is responsible.\nThe legislative history of \xc2\xa7 631 contains no such indication. To the contrary,\nit confirms that this section was not intended to restrict USDA\xe2\x80\x99s use of\ninformation in the enforcement context. The impetus for imposing a legislative\nlimitation on USDA\xe2\x80\x99s discretionary release of information collected under the\nAct to private parties seems to have come in the first instance from the district\ncourt\xe2\x80\x99s decision in Ivanhoe Citrus A ss\xe2\x80\x99n v. Handley , 612 F. Supp. 1560\n(D.D.C. 1985). Handley was a \xe2\x80\x9creverse\xe2\x80\x9d FOIA case in which California orange\ngrowers sought to prevent USDA from releasing certain lists of grower names\nand addresses collected by USDA under the Act. The court ruled against the\ngrowers, holding that the grower lists in question were not exempt from\ndisclosure under FOIA, and that USDA had not abused its discretion in releas\xc2\xad\ning the lists pursuant to a FOIA request.\nIn Handley , the court held, inter alia, that lists of names and addresses were\nnot covered by a provision in the 1937 Act requiring that certain information\ncollected under that Act be kept confidential. See 7 U.S.C. \xc2\xa7 608d(2). Presum\xc2\xad\nably, had this confidentiality provision in the 1937 Act applied to the lists in\nquestion, FOIA would have provided no basis for releasing them to a private\nparty. See 5 U.S.C. \xc2\xa7 552(b)(3). On the other hand, the confidentiality provi\xc2\xad\nsion of the 1937 Act would have posed no bar to USDA\xe2\x80\x99s use of protected\ninformation for its own enforcement purposes under the Act, because it pro\xc2\xad\nvides that protected information may be disclosed \xe2\x80\x9cin a suit or administrative\nhearing brought at the direction, or upon the request, of the Secretary of\nAgriculture, or to which he or any officer of the United States is a party, and\ninvolving the marketing agreement or order with reference to which the infor\xc2\xad\nmation so to be disclosed was furnished or acquired.\xe2\x80\x9d 7 U.S.C. \xc2\xa7 208d(2).\nIn July 1985, only a few days after the Handley decision was announced, the\nHouse Agriculture Committee reported out an amendment to the confidential\xc2\xad\nity provision of the 1937 Act. According to the Committee\xe2\x80\x99s report, the\namendment was intended to extend the coverage of the confidentiality provi\xc2\xad\nsion to the kind of information at issue in Handley. See H.R. Rep. No. 271,99th\nCong., 1st Sess., pt. 1, at 197 (1985) (\xe2\x80\x9cThe amendment would overturn the\nlegal basis used by the [Handley] court and the Administration to justify release\nof growersf] names and addresses.. . . \xe2\x80\x9d). Notwithstanding this apparent intention,\nhowever, the amendment reported by the House Agriculture Committee and ulti\xc2\xad\n2 See, e.g., 18 U.S C. \xc2\xa7 1905 (generally prohibiting agency \xe2\x80\x9cdisclosure\xe2\x80\x9d of confidential inform ation and\ntrade secrets); 15 U S.C. \xc2\xa7 2055(b)(1) (prohibiting \xe2\x80\x9cdisclosure" by the C onsum er Product Safety Com m is\xc2\xad\nsion); 5 U.S.C. \xc2\xa7 1401 (perm itting \xe2\x80\x9cdisclosure\xe2\x80\x9d o f confidential information and trade secrets received by the\nNational Highw ay Traffic Safety A dm inistration under the National Traffic and M otor V ehicle Safely o f Act\nonly \xe2\x80\x9c when relevant in any proceeding under this title\xe2\x80\x9d ). See also O ffice of Legal Policy, U.S. Department of\nJustice, Freedom o f Information Act Case List 317-23 ( 1986) (discussion o f \xe2\x80\x9c Exemption 3\xe2\x80\x9d statutes).\n\nli\n\n\x0cmately enacted by Congress in December 1985 was worded so as to bring\nwithin the ambit of the confidentiality provision only \xe2\x80\x9ctrade secrets and com\xc2\xad\nmercial or financial information.\xe2\x80\x9d Pub. L. No. 99-198, \xc2\xa7 663,99 Stat. 1631 (1985).\nAlmost immediately, questions were raised as to whether grower lists would\nbe considered \xe2\x80\x9ctrade secrets and commercial or financial information.\xe2\x80\x9d (In\xc2\xad\ndeed, the Handley decision had explicitly held that they were not, at least for\npurposes of the FOIA\xe2\x80\x99s (b)(4) exemption. 612 F. Supp. at 1566.) It thus appeared\nthat the 1985 amendment to the 1937 Act had not accomplished the Agriculture\nCommittee\xe2\x80\x99s stated objective of protecting the grower lists at issue in Handley from\nFOIA disclosure, and that further legislative steps would be necessary.\nWhen viewed against this background, \xc2\xa7 631 appears to represent a second\nattempt to effect the desired limitation on USDA\xe2\x80\x99s discretion to release infor\xc2\xad\nmation collected from handlers under the 1937 Act in response to FOIA\nrequests. That this new restriction on USDA was imposed through an appro\xc2\xad\npriations act provision rather than by a second amendment to the confidential\xc2\xad\nity provision of the 1937 Act itself is probably best explained as a phenomenon\nof the modem legislative process: in recent years Congress has proven itself\nincreasingly willing to use the relatively expeditious appropriations process to\nenact substantive law, rather than go through the arduous, time-consuming and\noften dangerous process of amending the United States Code.\nAs is often the case in such situations, the current USDA appropriations act\nhas no formal legislative history that would confirm or refute our hypothesis\nabout the connection between \xc2\xa7 631 and the confidentiality provision of the\n1937 Act. Nonetheless, we believe that this hypothesis offers the most plau\xc2\xad\nsible explanation of Congress\xe2\x80\x99 intent in enacting \xc2\xa7631. Accordingly, we\nbelieve \xc2\xa7 631 should be interpreted in light of the 1937 Act\xe2\x80\x99s express intention\nto allow USDA to use information collected under the Act \xe2\x80\x9cin a suit or\nadministrative hearing brought at the direction, or upon the request, of the\nSecretary of Agriculture, or to which he or any officer of the United States is a\nparty.\xe2\x80\x9d 7 U.S.C. \xc2\xa7 608d(2).\nIn sum, we believe that \xc2\xa7 631 does not limit USDA\xe2\x80\x99s ability to release\ninformation in the context of exercising its enforcement and administrative\nresponsibilities under the 1937 Act. Accordingly, it would appear that \xc2\xa7 631\nposes no bar to USDA\xe2\x80\x99s release of information to governmental or nongovern\xc2\xad\nmental parties in any of the specific situations described in your letter.\nAs a final point, we note that because the restriction contained in \xc2\xa7 631 was\nenacted as part of an appropriations act, there is a presumption that Congress\nintended it to be effective only for the fiscal period covered by that act. None of\nthe generally accepted countervailing indications of permanence are present in\neither the text or nature of the provision. See General Accounting Office,\nPrinciples o f Federal Accounting Law 2-34 to 2-37 (1982).3 Accordingly, it is\n3 A pro v isio n in an appropriations act w ill be regarded as perm anent if the language used o r the nature o f the\nprovision m akes it clear that such was o f th e intention o f C ongress. Principles , supra , at 2-34. Section 631\ncontain s no language m aking clear C ongress\xe2\x80\x99 intention to extend the provision\xe2\x80\x99s life beyond that o f the\nC ontinued\n\n12\n\n\x0cour opinion that the restriction contained in \xc2\xa7 631 will have no effect beyond\nthe end of the fiscal period covered by the current USDA appropriations act,\nunless it is reenacted by Congress.\nS a m u e l A . A l it o , J r .\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n3 ( . . . continued)\nappropriations act in w hich it appears, and the nature o f the restriction imposed does not necessarily im ply\nintended permanence. The phrasing o f a provision as an affirm ative authorization rather than a restnction on\nthe use o f funds is generally regarded as an indication that Congress intended it to be perm anent. Id. at 2 -3 7 .\nBut \xc2\xa7 631 is couched in term s o f a lim itation on U SD A \xe2\x80\x99s use o f funds rather than as a direct restriction on the\nrelease o f inform ation. Finally, the inclusion o f a provision in the U nited States Code, another com m on\nindication o f intended perm anence, id. at 2 -3 6 , is missing here.\n\n13\n\n\x0c'


b'The Attorney General\xe2\x80\x99s Duty to Defend and Enforce\nConstitutionally Objectionable Legislation\nT he A ttorney G eneral has a duty to defend and enforce both the A cts o f C ongress and\nthe Constitution; w hen there is a conflict betw een the requirem ents o f the one and the\nrequirem ents o f the other, it is alm ost alw ays the case that he can best discharge the\nresponsibilities o f his office by defending and enforcing the A ct o f Congress.\nWhile there is no general privilege\ninconsistent with the Constitution,\ntional system may require action in\nrefusal to defend and enforce an\n\nin the E xecutive to disregard laws that it deem s\nin rare cases the Executive\xe2\x80\x99s duty to the constitu\xc2\xad\ndefiance o f a statute. In such a case, the E xecutive\xe2\x80\x99s\nunconstitutional statute is authorized and lawful.\n\nJuly 30, 1980\nT\n\nhe\n\nC\n\nh a ir m a n\n\nC ontracted\n\nof the\nand\n\nD\n\nS enate Subcom\n\nelegated\n\nA\n\nm it t e e\n\non\n\nL\n\nim it a t io n s\n\nof\n\nu t h o r it y\n\nM y D ear M r . C h a ir m a n : In your letter o f June 25, 1980, you asked\nthat I answer eleven questions posed by you concerning the legal\n\xe2\x80\x9cauthority\xe2\x80\x9d supporting \xe2\x80\x9cthe Justice D epartm ent\xe2\x80\x99s assertion that it can\ndeny the validity of A cts o f Congress.\xe2\x80\x9d I am pleased to respond. I have\ntaken the liberty o f setting these eleven questions out verbatim so the\ncontext in w hich my answers are given will be clear. M y answers\nfollow several prelim inary observations about the form o f the questions\nasked and the general nature o f the D epartm ent\xe2\x80\x99s \xe2\x80\x9cassertion\xe2\x80\x9d in this\nmatter.\n\nThe Attorney General has a duty to defend and enforce the Acts of\nCongress. He also has a duty to defend and enforce the Constitution. If\nhe is to perform these duties faithfully, he must exercise conscientious\njudgment. He must examine the Acts of Congress and the Constitution\nand determine what they require of him; and if he finds in a given case\nthat there is conflict between the requirements of the one and the\nrequirements of the other, he must acknowledge his dilemma and\ndecide how to deal with it. That task is inescapably his.\nI concur fully in the view, expressed by nearly all of my predecessors\nthat when the Attorney General is confronted with such a choice, it is\nalmost always the case that he can best discharge the responsibilities of\nhis office by defending and enforcing the Act of Congress. That view is\nsupported by compelling constitutional considerations. Within their re\xc2\xad\nspective spheres of action the three branches of government can and do\nexercise judgment with respect to constitutional questions, and the\n55\n\n\x0cJudicial Branch is ordinarily in a position to protect both the govern\xc2\xad\nment and the citizenry from unconstitutional action, legislative and\nexecutive; but only the Executive Branch can execute the statutes of\nthe United States. F or that reason alone, if executive officers w ere to\nadopt a policy o f ignoring or attacking A cts o f Congress w henever\nthey believed them to be in conflict w ith the provisions of the Constitu\xc2\xad\ntion, their conduct in office could jeopardize the equilibrium established\nwithin our constitutional system.\nA t the same time, I believe that if C ongress w ere to enact a law\nrequiring, for example, that the A ttorney G eneral arrest and imprison\nall m embers o f the opposition party w ithout trial, the A ttorney General\ncould lawfully decline to enforce such a law; and he could lawfully\ndecline to defend it in court. Indeed, he w ould be untrue to his office if\nhe w ere to do otherw ise. This is not because he has authority to \xe2\x80\x9cdeny\nthe validity o f A cts o f C ongress.\xe2\x80\x9d It is because everything in our\nconstitutional jurisprudence inescapably establishes that neither he nor\nany o th er executive officer can be given authority to enforce such a\nlaw. T he \xe2\x80\x9cassertion\xe2\x80\x9d o f the D epartm ent o f Justice is nothing more, nor\nless, than th is.1\nI have one further observation. In your letter you state that your\nrequest \xe2\x80\x9cdoes not include those situations w here the A cts themselves\ntouch on constitutional separation o f pow ers between Executive and\nLegislative Branches . . . .\xe2\x80\x9d Since almost all o f the legal authority\ndealing with this question, from the trial o f A ndrew Johnson to the\nargum ents o f A ttorney G eneral Levi in B uckley v. Valeo, 424 U.S. 1\n(1976), deal w ith separation o f pow ers issues, your limitation is strin\xc2\xad\ngent. I will not discuss all the pertinent authorities if you will permit\nme to note that in this field the historical predom inance o f separation of\npow ers issues is no accident. I have said that the Executive can rarely\ndefy an A ct o f C ongress w ithout upsetting the equilibrium established\nwithin our constitutional system; but if that equilibrium has already\nbeen placed in jeopardy by the A ct o f C ongress itself, the case is much\nm ore likely to fall within that narrow class.\nT he traditional debate over the nature and extent o f the President\xe2\x80\x99s\nsupervisory authority as chief executive provides a good illustration of\nthe phenom enon to w hich I have just referred. From time to time\nC ongress has attem pted to limit the President\xe2\x80\x99s pow er to remove, and\nthereby control, the officers o f the United States. Some o f these at\xc2\xad\ntem pts have been consistent w ith the Constitution; others have not. In\n11\nnote that an analogous situation is presented w here an individual subject to a court injunction\nbelieves that injunction to be unconstitutional o r legally invalid. T h e well-established rule is that such\nan injunction must be obeyed until it is dissolved o r modified on appeal in o rd e r to preserve the\nintegrity o f the judicial process. Walker v. C ity o f Birmingham, 388 U.S. 307 (1967). T h e C ourt in\nWalker, how ever, was careful to em phasize that it did not have before it a case in w hich "the\ninjunction w as transparently invalid." Id. at 315. If an A ct o f C ongress directs or authorizes the\nE xecutive to take action w hich is "tran sp aren tly invalid" w hen view ed in light o f established constitu\xc2\xad\ntional law, I believe it is the Executive\xe2\x80\x99s constitutional duty to decline to execute that pow er.\n\n56\n\n\x0cevery one o f these instances, how ever, it was the A ct o f Congress itself\nthat altered the balance o f forces between the Executive and Legisla\xc2\xad\ntive Branches; and if the Executive had invariably honored the A ct, our\nconstitutional system w ould have been changed by fa it accompli. A c\xc2\xad\ncordingly, in some o f the cases in which the constitutionality o f the A ct\nwas in doubt, the Executive determ ined that it could best preserve our\nconstitutional system by refusing to honor the limitation imposed by the\nA ct, thereby creating, through opposition, an opportunity for change\nand correction that would not have existed had the Executive acqui\xc2\xad\nesced. See Myers v. United States, 272 U.S. 52 (1926). Inter-branch\ndisputes over other separation-of-powers issues can follow a similar\ncourse.\nI now turn to your specific questions.\nQuestion 1:\n\nW hat is the specific authority (if any) deriving from E ng\xc2\xad\nlish constitutional history which supports the Justice D e\xc2\xad\npartm ent\xe2\x80\x99s assertion that it can deny the validity o f Acts\nof Congress?\n\nAs I have suggested, the D epartm ent\xe2\x80\x99s \xe2\x80\x9cassertion\xe2\x80\x9d depends entirely\nupon the proposition that there are fundamental limitations on the\nauthority o f the Legislative and Executive Branches o f our govern\xc2\xad\nment. This, in fact, is the central legal principle in our constitutional\nsystem\xe2\x80\x94our system o f \xe2\x80\x9clim ited\xe2\x80\x9d governm ent\xe2\x80\x94and it is a principle that\nthe English have rejected. A ccordingly, English constitutional history is\nim portant for our purposes, not because it supports my view that in a\nsystem o f \xe2\x80\x9climited\xe2\x80\x9d governm ent there are pow ers and duties that\ncannot be imposed upon executive officers, but because it illustrates\nhow constitutional governm ent can develop tow ards a radically differ\xc2\xad\nent model\xe2\x80\x94a model in w hich there is no fundamental limitation upon\nlegislative power. It is true that there are early English cases that I\ncould cite in my behalf. I am reminded in particular o f C oke\xe2\x80\x99s ju d g \xc2\xad\nment in Calvin\'s Case, 1 Co. Rep. 1 (immutable natural law prevents\nParliam ent from separating a subject from the protection o f his king).\nBut even though these early precedents enjoyed some vitality on this\nside o f the Atlantic as late as the time o f the Am erican Revolution\n(consider, for example, James Otis\xe2\x80\x99 classic attack on the writs o f assist\xc2\xad\nance, February 24, 1761, printed in Commager, D ocum ents o f A m eri\xc2\xad\ncan History 45 (5th ed. 1949)), they did not carry the day in their ow n\ncountry.\nI should add that I consider the 17th century dispute between Parlia\xc2\xad\nment and the Stuart kings over the so-called \xe2\x80\x9cdispensing pow er\xe2\x80\x9d to be\ndirectly relevant to the questions you have raised. T he history o f that\ndispute was well-known to the Fram ers o f the Constitution, and it is\nclear that they intended to deny our President any discretionary pow er\no f the sort that the Stuarts claimed. W e must remember, how ever, that\n57\n\n\x0cit was largely as a result o f Parliam ent\xe2\x80\x99s victory in that m atter that the\nEnglish came to abandon any notion that \xe2\x80\x9c fundamental law \xe2\x80\x9d limited\nthe pow ers o f the legislative sovereign. This is the very notion upon\nw hich o ur Constitution, and the D epartm ent\xe2\x80\x99s view o f this question,\ndepends. In our system o f limited governm ent, unlike the English\nsystem, there are some things that the legislature and the officers o f the\ngovernm ent cannot lawfully do.\nQuestion 2:\n\nW hat is the specific authority (if any) deriving from the\nConstitutional C onvention and other expressions of the\nFram ers w hich supports the Justice D epartm ent\xe2\x80\x99s asser\xc2\xad\ntion that it can deny the validity o f A cts of Congress?\n\nT he available evidence concerning the intentions o f the Fram ers\nlends no specific support to the proposition that the Executive has a\nconstitutional privilege to disregard statutes that are deemed by it to be\ninconsistent with the Constitution. T he Fram ers gave the President a\nveto for the purpose, among others, o f enabling him to defend his\nconstitutional position. T hey also provided that his veto could be over\xc2\xad\nridden by extraordinary m ajority in both Houses. T hat being so, an\nargum ent can be made that the Fram ers assumed that the President\nwould not be free to ignore, on constitutional grounds or otherwise, an\nA ct o f Congress that he had been unwilling to veto 2 or had been\nenacted over his veto.\nA t the same time, I believe that there is relatively little direct evi\xc2\xad\ndence o f w hat the Fram ers thought, o r m ight have thought, about the\nE xecutive\xe2\x80\x99s obligations w ith regard to A cts o f Congress that w ere\ntransparently inconsistent w ith the Constitution; and, indeed, the ques\xc2\xad\ntion remained open for some time after the Constitution was adopted.\nPresident Jefferson, for example, w riting o f the Alien and Sedition Acts\nin 1804, concluded that each branch had pow er to exercise independent\njudgm ent on constitutional questions and that this was an im portant\nelem ent in the system o f checks and balances:\nT h e judges believing the [Sedition law] constitutional, had\na right to pass a sentence o f fine and imprisonment; be\xc2\xad\ncause that pow er was placed in their hands by the Consti\xc2\xad\ntution. But the executive, believing the law to be uncon\xc2\xad\nstitutional, was bound to remit the execution o f it; because\nthat pow er has been confided to him by the Constitution.\nT he instrum ent meant that its coordinate branches should\nbe checks on each other.\n8 W ritings o f Thom as Jefferson 310 (1897).\n2T h e P resident\xe2\x80\x99s failure to veto an unconstitutional A ct o f C ongress does not in itself estop the\nE xecutive from challenging the A ct in co u rt at a future date, n o r does it cure the constitutional defect\nw here the question is one o f separation o f pow ers. See M yers v. United States, 272 U.S. 52 (1926);\nN ational League o f Cities v. Usery, 426 U.S. 833, 841 n.12 (1976).\n\n58\n\n\x0cPresident Jefferson\xe2\x80\x99s view was not to prevail, although other early\nPresidents, including A ndrew Jackson, w ere to express similar senti\xc2\xad\nments from time to time.\nAs I have said, I do not believe that the prerogative of the Executive\nis to exercise free and independent judgm ent on constitutional questions\npresented by A cts o f Congress. At the same time, I think that in rare\ncases the Executive\xe2\x80\x99s duty to the constitutional system may require that\na statute be challenged; and if that happens, executive action in defiance\no f the statute is authorized and lawful if the statute is unconstitutional.\nT hat brings me to your next question.\nQuestion 3:\n\nW hat is the specific authority (if any) deriving from Su\xc2\xad\nprem e C ourt or other judicial opinions w hich supports the\nJustice D epartm ent\xe2\x80\x99s assertion that it can deny the validi\xc2\xad\nty o f A cts o f Congress?\n\nIn M yers v. United States, 272 U.S. 52 (1926), the Supreme C ourt was\nasked to decide w hether the President had acted lawfully in rem oving a\npostm aster from office in contravention o f an A ct o f Congress. T he\nA ct provided that postmasters w ere not to be rem oved by the President\nw ithout the advice and consent o f the Senate. T he case involved a\nclaim for back salary filed by the heirs o f the postm aster w ho had been\nremoved. T he action was brought in the C ourt o f Claims under statute\nthat gives that court jurisdiction to hear cases not sounding in tort\narising out o f conduct by executive officers alleged to be unlawful\nunder the C onstitution or A cts o f Congress.\nW hen the case came before the Supreme C ourt, the Solicitor G en\xc2\xad\neral, appearing for the United States, assailed the attem pt to limit the\nremoval power. He argued that the statute imposed an unconstitutional\nburden upon the President\xe2\x80\x99s supervisory authority over subordinate\nofficers in the Executive Branch. Senator Pepper made an amicus curiae\nappearance and argued that the statute was constitutional. T he C ourt\nruled that the statute was unconstitutional. M ore to the point, the C ourt\nruled that the President\xe2\x80\x99s action in defiance o f the statute had been\nlawful. It gave rise to no actionable claim for damages under the\nConstitution or an A ct o f Congress in the C ourt o f Claims.\nIn my view, M yers is very nearly decisive o f the issue you have\nraised. M yers holds that the President\xe2\x80\x99s constitutional duty does not\nrequire him to execute unconstitutional statutes; nor does it require him\nto execute them provisionally, against the day that they are declared\nunconstitutional by the courts. He cannot be required by statute to\nretain postmasters against his will unless and until a court says that he\nmay lawfully let them go. If the statute is unconstitutional, it is uncon\xc2\xad\nstitutional from the start.\nI wish to add a cautionary note. T he President has no \xe2\x80\x9cdispensing\npow er.\xe2\x80\x9d If he or his subordinates, acting at his direction, defy an A ct of\nCongress, their action will be condem ned if the A ct is ultim ately\n59\n\n\x0cupheld. T heir ow n views regarding the legality or desirability o f the\nstatute do not suspend its operation and do not immunize their conduct\nfrom judicial control. T hey may not lawfully defy an A ct o f Congress\nif the A ct is constitutional. This was the teaching o f a near sequel o f\nMyers, H um phrey\xe2\x80\x99s Executor v. United States, 295 U.S. 602 (1935); and it\nis a proposition that was implicit in many prior holdings. In those rare\ninstances in w hich the Executive may lawfully act in contravention o f a\nstatute, it is the Constitution that dispenses with the operation o f the\nstatute. T he E xecutive cannot.\nQuestion 4:\n\nW hat is the specific authority (if any) deriving from opin\xc2\xad\nions o f the A ttorneys G eneral w hich supports the Justice\nD epartm ent\xe2\x80\x99s assertion that it can deny the validity of\nA cts o f Congress?\n\nT he formal opinions o f my predecessors in this Office establish with\nclarity the general principles upon w hich this D epartm ent continues to\nrely in dealing with real or apparent conflicts between A cts o f C on\xc2\xad\ngress and the Constitution. See, e.g., 40 Op. A tt\xe2\x80\x99y Gen. 158, 160, and\nopinions cited therein. As I have already said, I support those opinions\nfully. All o f them emphasize our param ount obligation to the A cts o f\nCongress. None o f them concludes that the Executive must enforce and\ndefend every A ct o f C ongress in every conceivable case, the require\xc2\xad\nments o f the Constitution notw ithstanding.\nQuestion 5:\n\nW hat is the specific authority (if any) deriving from ex\xc2\xad\npress language in statutes o r their legislative history\nw hich supports the Justice D epartm ent\xe2\x80\x99s assertion that it\ncan deny the validity o f A cts o f Congress?\n\nT he statutes that define the Office o f the A ttorney G eneral require\nhim to render opinions upon questions o f law, and they require him to\nconduct litigation in w hich the U nited States is interested. None o f the\nstatutes either requires or forbids him to inquire into the constitutional\xc2\xad\nity o f statutes.3 As I have said, the traditional opinion has been that the\nA ttorney G eneral, in the due perform ance o f his constitutional function\nas an officer o f the United States, must ordinarily defend the A cts o f\nCongress. As I have said, I subscribe fully to that position.\nQuestion 6:\n\nW hat is the specific authority (if any) deriving from his\xc2\xad\ntoric practice prior to the current Adm inistration which\nsupports the Justice D epartm ent\xe2\x80\x99s assertion that it can\ndeny the validity o f A cts o f Congress?\n\nM arbury v. Madison, 1 C ranch 137 (1803), was probably the first case\nin w hich the E xecutive made no effort to defend an A ct o f Congress\n3Q uite apart from the provisions o f any statute prescribing the duties o r the authority o f the\nA ttorn ey G eneral, the C onstitution itself provides that the President \' \xe2\x80\x98may require the O pinion in\nW riting, o f the principal O fficer in each o f the executive D epartm ents upon any subject relating to the\nD uties o f their respective O ffices." U.S. C onst. A rt. II, \xc2\xa7 2, cl. I.\n\n60\n\n\x0con a constitutional point. President Jefferson was strongly o f the view\nthat Congress had no pow er to give the Suprem e C ourt (or any other\ncourt) authority to control executive officers through the issuance of\nwrits o f mandamus. See 1 W arren, T he Suprem e C ourt in United States\nHistory 232, 242-43 (1922). W hen Mr. M arbury and the other \xe2\x80\x9cmid\xc2\xad\nnight judges\xe2\x80\x9d initiated an original action in the Supreme C ourt to\ncom pel delivery o f their commissions, President Jefferson\xe2\x80\x99s A ttorney\nGeneral, Levi Lincoln, made no appearance in the case except as a\nreluctant witness. See 1 C ranch 143-44. No attorney appeared on behalf\no f Secretary Madison. T he C ourt ultimately resolved the case by agree\xc2\xad\ning and disagreeing with President Jefferson. T he C ourt held that the\nrelevant statute was unconstitutional to the extent that it attem pted to\ngive the Supreme C ourt pow er to issue writs o f mandamus against\nexecutive officers, but that there was no general principle o f law that\nwould prevent Congress from giving that pow er to the low er courts.\nA second significant historical incident involving a refusal by the\nExecutive to execute or defend the A cts o f Congress on constitutional\ngrounds arose during the adm inistration o f A ndrew Johnson. In defi\xc2\xad\nance o f the T enure in Office A ct, w hich he deemed to be unconstitu\xc2\xad\ntional, President Johnson rem oved his Secretary o f War. This action\nprovided the legal basis for one of the charges that was lodged against\nhim by his opponents in the House; and during his subsequent trial in\nthe Senate, the arguments offered by counsel on both sides provided an\nilluminating discussion o f the responsibilities o f the Executive in our\nconstitutional system. See 2 Trial o f A ndrew Johnson 200 (W ashington\n1868). President Johnson was acquitted by one vote.\nI will mention a third incident that illustrates an interesting variation\non the historical practice. In the midst o f W orld W ar II, as a result o f\nthe w ork o f the House Com mittee on Un-Am erican Activities, C on\xc2\xad\ngress provided, in a deficiency appropriations act, that no salary or\ncom pensation could be paid to certain named governm ent employees.\nThese individuals had been branded in the House as \xe2\x80\x9c irresponsible,\nunrepresentative, crackpot, radical bureaucrats.\xe2\x80\x9d T he Executive re\xc2\xad\nsponded to the statute by taking tw o courses at once. T he Executive\nenforced the letter o f the statute (by not paying the salary o f the\nemployees in question), but joined with the employees in a legal attack\nupon the constitutionality o f the relevant provision. W hen the case\ncame before the Suprem e C ourt, an attorney was perm itted to appear\non behalf o f Congress, as amicus curiae, to defend the statute against\nthe com bined assault. T he C ourt struck the relevant provision, holding\nthat it was a bill o f attainder, and allowed the employees to recover.\nUnited States v. Lovett, 328 U.S. 303 (1946).\nA ltogether, there have been very few occasions in our history when\nPresidents or A ttorneys G eneral have undertaken to defy, o r to refuse\nto defend, an A ct o f Congress. M ost o f the relevant cases are cited\n61\n\n\x0ceither in the foregoing discussion o r in the answers that the Senate\nLegal Counsel has provided to you in response to these same questions.\nQuestion 7:\n\nW hat is the specific support (if any) expressed in any\nscholarly article o r book for the Justice D epartm ent\xe2\x80\x99s\nassertion that it can deny the validity o f A cts o f C on\xc2\xad\ngress?\n\nA helpful scholarly discussion o f this problem , together with citations\nto o ther works, may be found in E dw ard C orw in\xe2\x80\x99s book on the Presi\xc2\xad\ndency. Taking full advantage o f his scholarly prerogative, Corw in\nignores the teaching and, indeed, the holding o f M yers and concludes\nthat the President, even though he may doubt the constitutionality of a\nstatute, \xe2\x80\x9cmust prom ote its enforcem ent by all the pow ers constitution\xc2\xad\nally at his disposal unless and until enforcem ent is prevented by regular\njudicial process.\xe2\x80\x9d 2 E. C orw in, T he President, Office and Powers,\n1887-1957, 66 (4th rev. ed. 1957).\nQuestion 8:\n\nW hat is the specific authority (if any) deriving from ethi\xc2\xad\ncal pronouncem ents w hich supports the Justice D epart\xc2\xad\nm ent\xe2\x80\x99s assertion that it can deny the validity o f A cts o f\nCongress?\n\nT he \xe2\x80\x9cethical\xe2\x80\x9d obligations that devolve upon the A ttorney G eneral as\na mem ber o f the legal profession cannot enlarge or contract his duties\nas an officer o f the U nited States. T here is nothing in my obligation to\nmy profession or to the courts that prevents me from discharging my\nduty either to defend the A cts o f C ongress o r to question them in the\nrare cases in w hich that is appropriate.\nQuestion 9:\n\nW hat specific instances are there in w hich a court o r bar\nassociation has expressly asserted an ethical duty for gov\xc2\xad\nernm ent litigators to inquire into the validity o f A cts of\nCongress?\n\nI know o f no decision by a court or a bar association that expressly\nasserts that governm ent litigators have an ethical duty either to inquire\ninto the validity o f A cts o f C ongress or to defend them.\nQuestion 10:\n\nHas the Justice D epartm ent ever sought from Congress\nlegislation to deal with any asserted ethical problem in\nlitigation concerning the validity o f A cts o f Congress?\n\nNo.\nQuestion 11:\n\nHas there been any relevant change in the ethical rules\nin the past few years, since the Justice D epartm ent has\nfirst begun denying the validity o f A cts o f Congress?\n\nI know o f no recent change in any ethical rule that relates to this\nproblem . Y our question assumes that the Justice D epartm ent has some\nnew policy in this field. F rom w hat I have said in response to your\n62\n\n\x0cquestions, and from the historical examples I have given, I hope it is\nclear that we have no new policy. O ur policy is an old one.\nSincerely,\nB e n ja m in\n\n63\n\nR.\n\nC iv il e t t i\n\n\x0c'