b'Authority for the Continuance of Government Functions\nDuring a Temporary Lapse in Appropriations\nStatutory authority for an agency to incur obligations in advance o f appropriations heed\nnot be express, but may be implied from the specific duties that: have been imposed\nupon, or of authorities that have been invested in, the agency.\nThe \xe2\x80\x9cauthorized by law\xe2\x80\x9d exception in the Antideficiency Act exempts from that A ct\xe2\x80\x99s\ngeneral prohibition not only those obligations for which there is statutory authority,\nbut also those obligations necessarily incident to initiatives undertaken within the\nPresident\xe2\x80\x99s constitutional powers.\nA government agency may employ personal services in advance o f appropriations only\nwhen there is a reasonable and articulable connection between the function to be\nperformed and the safety of human life or the protection of property, and when there is\nsome reasonable likelihood that either or both would be compromised in some degree\nby delay in the performance o f the function in question.\n\nJanuary 16, 1981\nT h e P r e s id e n t\nT h e W h it e H o u se\n\nM y D e a r M r. P r e s i d e n t : Y o u have asked my opinion concerning the\nscope of currently existing legal and constitutional authorities for the\ncontinuance of government functions during a temporary lapse in ap\xc2\xad\npropriations, such as the government sustained on October 1, 1980. As\nyou know, some initial determination concerning the extent o f these\nauthorities had to be made in the waning hours of the last fiscal year in\norder to avoid extreme administrative confusion that might have arisen\nfrom Congress\xe2\x80\x99 failure timely to enact 11 of the 13 anticipated regular\nappropriations bills,1 or a continuing resolution to cover the hiatus\nbetween regular appropriations. The resulting guidance, which I ap\xc2\xad\nproved, appeared in a memorandum that the Director of the Office of\nManagement and Budget circulated to the heads of all departments and\nagencies on September 30, 1980. Your request, in effect, is for a close\nand more precise analysis of the issues raised by the September 30\nmemorandum.\nBefore proceeding with my analysis, I think it useful to place this\nopinion in the context of my April 25, 1980, opinion to you concerning\nthe applicability of the Antideficiency Act, 31 U.S.C. \xc2\xa7 665, upon lapses\n\'P rio r to October 1, 1980, Congress had passed regular appropriations for fiscal year 1981 only for\nenergy and water development, Pub. L. No. 96-367, 94 Stat 1331 (Oct. 1, 1980).\n\ni\n\n\x0cin appropriations, 43 Op. A tt\xe2\x80\x99y Gen. No. 24, 4 Op. O.L.C. 16 (1980).\nThat opinion set forth tw o essential conclusions. First, if, after the\nexpiration o f an agency\xe2\x80\x99s appropriations, Congress has enacted no ap\xc2\xad\npropriation for the immediately subsequent period, the agency may\nmake no contracts and obligate no further funds except as authorized\nby law. Second, because no statute generally permits federal agencies to\nincur obligations without appropriations for the pay of employees,\nagenices are not, in general, authorized by law to employ the services\nof their employees upon a lapse in appropriations. My interpretation of\nthe Antideficiency Act in this regard is based on its plain language, its\nhistory, and its manifest purposes.\nT he events prompting your request for my earlier opinion included\nthe prospect that the then-existing temporary appropriations measure\nfor the Federal Trade Commission (FTC) would expire in April, 1980,\nwithout extension, and that the FTC might consequently be left with\xc2\xad\nout appropriations for a significant period.2 The FTC did not then\nsuggest that it possesses obligational authorities that are free from a\none-year time limitation. Neither did it suggest, based on its interpreta\xc2\xad\ntion o f the law at that time, that the FTC performs emergency func\xc2\xad\ntions involving the safety of human life or the protection of property\nother than protecting government property within the administrative\ncontrol o f the FT C itself. Consequently, the legal questions that the\nApril 25, 1980, opinion addressed were limited. Upon determining that\nthe blanket prohibition expressed in \xc2\xa7 665(a) against unauthorized obli\xc2\xad\ngations in advance of appropriations is to be applied as written, the\nopinion added only that the Antideficiency Act does permit agencies\nthat are ceasing their functions to fulfill certain legal obligations con\xc2\xad\nnected with the orderly termination o f agency operations.3 The opinion\ndid not consider the more complex legal questions posed by a general\ncongressional failure to enact timely appropriations, or the proper\ncourse of action to be followed when no prolonged lapse in appropria\xc2\xad\ntions in such a situation is anticipated.\nT he following analysis is directed to those issues. Under the terms of\nthe Antideficiency Act, the authorities upon which the government\nmay rely for the continuance of functions despite a lapse in appropria\xc2\xad\ntions implicates tw o fundamental questions. Because the proscription of\n\xc2\xa7 665(a) excepts obligations in advance of appropriations that are \xe2\x80\x9cau\xc2\xad\nthorized by law,\xe2\x80\x9d it is first necessary to consider which functions this\nexception comprises. Further, given that \xc2\xa7 665(b) expressly permits the\n2 F T C actually sustained less than a one-day lapse in appropriations between the expiration, on\nApril 30, 1980, of a transfer of funds for its use, Pub. L No. 96-219, 94 Stat. 128 (Mar. 28, 1980), and\nthe enactm ent, on May I, 1980, of an additional transfer. Pub. L. No. 96-240, 94 Stat. 342. Prior to\nApril 30, however, it appeared likely that a protracted congressional dispute concerning the terms of\nthe F T C \xe2\x80\x99s eventual authorization, Pub. L. No. 96-252, 94 Stat. 374 (May 28, 1980), would precipitate\na lapse in appropriations for a significantly longer penod.\n9 See note 11, infra.\n\n2\n\n\x0cgovernment to employ the personal service of its employees in \xe2\x80\x9ccases\nof emergency involving the safety o f human life or the protection of\nproperty,\xe2\x80\x9d it is necessary to determine how this category is to be\nconstrued. I shall address these questions in turn, bearing in mind that\nthe most useful advice concerning them must be cast chiefly in the\nform of general principles. The precise application of these principles\nmust, in each case, be determined in light of all the circumstances\nsurrounding a particular lapse in appropriations.\nI.\n\nSection 665(a) o f Title 31, United States Code provides:\nNo officer or employee of the United States shall make or\nauthorize an expenditure from or create or authorize an\nobligation under any appropiation or fund in excess of the\namount available therein; nor shall any officer or employee\ninvolve the Government in any contract or obligation, for the\npayment o f money fo r any purpose, unless such contract or\nobligation is authorized by law. (Emphasis added.)\nUnder the language of \xc2\xa7 665(a) emphasized above, it follows that,\nwhen an agency\xe2\x80\x99s regular appropriation lapses, that agency may not\nenter contracts or create other obligations unless the agency has legal\nauthority to incur obligations in advance of appropriations. Such au\xc2\xad\nthority, in some form, is not uncommon in the government. F or exam\xc2\xad\nple, notwithstanding the lapse of regular appropriations, an agency may\ncontinue to have available to it particular funds that are subject to a\nmulti-year or no-year appropriation. A lapse in authority to spend funds\nunder a one-year appropriation would not affect such other authorities.\n13 Op. A tt\xe2\x80\x99y Gen. 288, 291 (1870).\nA more complex problem of interpretation, however, may be pre\xc2\xad\nsented with respect to obligational authorities that are not manifested in\nappropriations acts. In a few cases, Congress has expressly authorized\nagencies to incur obligations without regard to available appropria\xc2\xad\ntions.4 More often, it is necessary to inquire under what circumstances\nstatutes that vest particular functions in government agencies imply\nauthority to create obligations for the accomplishment of those func\xc2\xad\ntions despite the lack of current appropriations. This, of course, would\nbe the relevant legal inquiry even if Congress had not enacted the\nAntideficiency Act; the second phrase of \xc2\xa7 665(a) clearly does no more\nthan codify what, in any event and not merely during lapses in appro\xc2\xad\npriations, is a requirement o f legal authority for the obligation of public\nfunds.5\n\xe2\x80\xa2See, e.g.. 25 U.S.C. \xc2\xa7 99; 31 U S.C. \xc2\xa7 668; 41 U.S.C. \xc2\xa7 II.\n5This rule has, in fact, been expressly enacted in some form for 160 of the 191 years since Congress\nfirst convened. The Act o f May 1, 1820, provided:\n[N]o contract shall hereafter be made by the Secretary of State, or of the Treasury, or\nContinued\n\n3\n\n\x0cPrevious Attorneys General and the Comptrollers General have had\nfrequent occasion to address, directly or indirectly, the question of\nimplied authority. Whether the broader language of all o f their opinions\nis reconcilable may be doubted, but the conclusions of the relevant\nopinions fully establish the premise upon which my April 25, 1980,\nmemorandum to you was based: statutory authority to incur obligations\nin advance of appropriations may be implied as well as express, but\nmay not ordinarily be inferred, in the absence of appropriations, from\nthe kind o f broad, categorical authority, standing alone, that often\nappears, for example, in the organic statutes o f government agencies.\nThe authority must be necessarily inferrable from the specific terms of\nthose duties that have been imposed upon, or of those authorities that\nhave been invested in, the officers or employees purporting to obligate\nfunds on behalf of the United States. 15 Op. A tt\xe2\x80\x99y Gen. 235, 240 (1877).\nThus, for example, w hen Congress specifically authorises contracts\nto be entered into for the accomplishment o f a particular purpose, the\ndelegated officer may negotiate such contracts even before Congress\nappropriates all the funds necessary for their fulfillment. E.g., 30 Op.\nA tt\xe2\x80\x99y Gen. 332, 333 (1915); 30 Op. A tt\xe2\x80\x99y Gen. 186, 193 (1913); 28 Op.\nA tt\xe2\x80\x99y Gen. 466, 469-70 (1910); 25 Op. A tt\xe2\x80\x99y Gen. 557, 563 (1906). On\nthe other hand, when authority for the performance of a specific\nfunction rests on a particular appropriation that proves inadequate to\nthe fulfillment of its purpose, the responsible officer is not authorized to\nobligate further funds for that purpose in the absence of additional\nappropriations. 21 Op. A tt\xe2\x80\x99y Gen. 244, 248-50 (1895); 15 Op. A tt\xe2\x80\x99y\nGen. 235, 240 (1877); 9 O p. A tt\xe2\x80\x99y Gen. 18, 19 (1857); 4 Op. A tt\xe2\x80\x99y Gen.\n600, 601-02 (1847); accord, 28 Comp. Gen. 163, 165-66 (1948).\nThis rule prevails even though the obligation of funds that the official\ncontemplates may be a reasonable means for fulfilling general responsi\xc2\xad\no f the D epartm ent of War, o r of the Navy, except under a law authorizing the same,\nor under an appropriation adequate to its fulfillment.\n3 Stat. 567, 568. T he A ct of March 2, 1861, extended the rule as follows:\nN o contract or purchase on behalf of the United States shall be made unless the same\nis authorized by law or is under an appropriation adequate to its fulfillment, except in\nthe W ar and Navy Departments, for clothing, subsistence, forage, fuel, quarters, or\ntransportation, which, however, shall not exceed the necessities o f the current year.\n12 Stat. 214, 220. Congress reiterated the ban on obligations in excess of appropriations by enacting\nthe Antideficiency A ct in 1870:\n[I]t shall not be lawful for any department o f the government to expend in any one\nfiscal year any sum in excess of appropriations made by Congress for that fiscal year,\no r to involve the government in any contract for the future payment of money in\nexcess o f appropriations\nA ct o f July 12, 1870, ch. 251, \xc2\xa77, 16 Stat. 230, 251. Congress substantially reenacted this provision in\n1905, adding the proviso \xe2\x80\x9cunless such contract or obligation is authorized by law,\xe2\x80\x9d Act of March 3,\n1905, ch. 1484, \xc2\xa7 4, 33 Stat. 1214, 1257, and reenacted it again in 1906, Act of Feb. 27, 1906, ch. 510,\n\xc2\xa7 3, 34 Stat. 27, 48. Section 665(a) o f Title 31, United States Code, enacted in its current form in 1950,\nA ct o f Sept. 6, 1950, Pub. L. No 81-759, \xc2\xa7 1211, 64 Stat. 595, 765, is substantially the same as these\nearlier versions, except that, by adding an express prohibition against unauthorized obligations \xe2\x80\x9cin\nadvance o f \xe2\x80\x99 appropriations to the prohibition against obligations \xe2\x80\x9cin excess o f \xe2\x80\x99 appropriations, the\nm odern version indicates even m ore forcefully Congress\xe2\x80\x99 intent to control the availability of funds to\ngovernm ent officers and employees.\n\n4\n\n\x0cbilities that Congress has delegated to the official in broad terms, but\nwithout conferring specific authority to enter into contracts or other\xc2\xad\nwise obligate funds in advance of appropriations. For example, Attorney\nGeneral McReynolds concluded, in 1913, that the Postmaster General\ncould not obligate funds in excess of appropriations for the employment\nof temporary and auxiliary mail carriers to maintain regular service,\nnotwithstanding his broad authorities for the carrying of the mails.\n30 Op. A tt\xe2\x80\x99y Gen. 157, 161 (1913). Similarly, in 1877, Attorney General\nDevens concluded that the Secretary of War could not, in the absence\nof appropriations, accept \xe2\x80\x9ccontributions\xe2\x80\x9d of materiel for the army, e.g.,\nammunition and medical supplies, beyond the Secretary\xe2\x80\x99s specific au\xc2\xad\nthorities to contract in advance of appropriations. 15 Op. A tt\xe2\x80\x99y Gen.\n209, 211 (1877).6\nOrdinarily, then, should an agency\xe2\x80\x99s regular one-year appropriation\nlapse, the \xe2\x80\x9cauthorized by law\xe2\x80\x9d exception to the Antideficiency A ct\nwould permit the agency to continue the obligation of funds to the\nextent that such obligations are: (1) funded by moneys, the obligational\nauthority for which is not limited to one year, e.g\xe2\x80\x9e multi-year appro\xc2\xad\npriations; (2) authorized by statutes that expressly permit obligations in\nadvance of appropriations; or (3) authorized by necessary implication\nfrom the specific terms of duties that have been imposed on, or of\nauthorities that have been invested in, the agency.7 A nearly government-wide lapse, however, such as occurred on October 1, 1980, impli\xc2\xad\ncates one further question of executive authority.\nUnlike his subordinates, the President performs not only functions\nthat are authorized by statute, but functions authorized by the Constitu\xc2\xad\ntion as well. T o take one obvious example, the President alone, under\nArticle II, \xc2\xa7 2, clause 1 of the Constitution, \xe2\x80\x9cshall have Power to grant\nReprieves and Pardons for Offenses against the United States, except in\nCases of Impeachment.\xe2\x80\x9d Manifestly, Congress could not deprive the\nPresident of this power by purporting to deny him the minimum\n6Accord, 37 Comp. Gen. 155, 156 (1957) (Atomic Energy Commission\xe2\x80\x99s broad responsibilities under\nthe Atomic Energy Act do not authorize it to enter into a contract for supplies or services to be\nfurnished in a fiscal year subsequent to the year the contract is made); 28 Comp. Gen. 300, 302 (1948)\n(Treasury Departm ent\xe2\x80\x99s discretion to establish reasonable compensation for Bureau of the Mint\nemployees does not confer authority to grant wage increases that would lead to a deficiency).\n7 It was on this basis that I determined, in approving the September 30, 1980, memorandum, that the\nresponsible departments are \xe2\x80\x9cauthorized by law\xe2\x80\x9d to incur obligations in advance of appropriations for\nthe administration o f benefit payments under entitlement programs when the funds for the benefit\npayments themselves are not subject to a one-year appropriation. Certain so-called \xe2\x80\x9centitlement\nprograms,\xe2\x80\x9d e.g., Old-Age and Survivors Insurance, 42 U S.C \xc2\xa7 401(a), are funded through trust funds\ninto which a certain portion of the public revenues are automatically appropriated Notwithstanding\nthis method of funding the entitlement payments themselves, the costs connected with the administra\xc2\xad\ntion of the trust funds are subject to annual appropriations. 42 U.S.C. \xc2\xa7 401(g). It might be argued that\na lapse in administrative authority alone should be regarded as expressing Congress\xe2\x80\x99 intent that benefit\npayments also not continue. The continuing appropriation of funds for the benefit payments them\xc2\xad\nselves, however, substantially belies this argument, especially when the benefit payments are to be\nrendered, at Congress\xe2\x80\x99 direction, pursuant to an entitlement formula. In the absence of a contrary\nlegislative history to the benefit program or affirmative congressional measures to terminate the\nprogram, I think it proper to infer authority to continue the administration of the program to the\nextent of the remaining benefit funding.\n\n5\n\n\x0cobligational authority sufficient to carry this power into effect. Not all\nof the President\xe2\x80\x99s powers are so specifically enumerated, however, and\nthe question must consequently arise, upon a government-wide lapse in\nappropriations, whether the Antideficiency A ct should be construed as\ndepriving the President o f authority to obligate funds in connection\nwith those initiatives that would otherwise fall within the President\xe2\x80\x99s\npowers.\nIn my judgm ent, the Antideficiency A ct should not be read as neces\xc2\xad\nsarily precluding exercises o f executive power through which the Presi\xc2\xad\ndent, acting alone or through his subordinates, could have obligated\nfunds in advance o f appropriations had the Antideficiency A ct not been\nenacted. With respect to certain of the President\xe2\x80\x99s functions, as illus\xc2\xad\ntrated above, such an interpretation could raise grave constitutional\nquestions. It is an elementary rule that statutes should be interpreted, if\npossible, to preclude constitutional doubts, Crowell v. Benson, 285 U.S.\n22, 62 (1932), and this rule should surely be followed in connection\nw ith a broad and general statute, such as 31 U.S.C. \xc2\xa7 665(a), the history\no f which indicates no congressional consideration at all of the desirabil\xc2\xad\nity of limiting otherwise constitutional presidential initiatives. The\nPresident, o f course, cannot legislate his own obligational authorities;\nthe legislative power rests w ith Congress. As set forth, however, in Mr.\nJustice Jackson\xe2\x80\x99s seminal concurring opinion in Youngstown Sheet &\nTube Co. v. Sawyer, 343 U.S. 579, 635 (1952):\nThe actual art o f governing under our Constitution\ndoes not and cannot conform to judicial definitions of the\npow er of any of its branches based on isolated clauses or\neven single Articles torn from context. While the Consti\xc2\xad\ntution diffuses power the better to secure liberty, it also\ncontemplates that practice will integrate the dispersed\npowers into a workable government. It enjoins upon its\nbranches separateness but interdependence, autonomy but\nreciprocity. Presidential powers are not fixed but fluctu\xc2\xad\nate, depending on their disjunction or conjunction with\nthose of Congress.\nF ollow ing8 this reasoning, the Antideficiency A ct is not the only\nsource o f law or the only exercise of congressional power that must be\nweighed in determining w hether the President has authority for an\ninitiative that obligates funds in advance of appropriations. The Presi\xc2\xad\ndent\xe2\x80\x99s obligational authority may be strengthened in connection with\ninitiatives that are grounded in the peculiar institutional powers and\n\xe2\x80\x9cA m ajority o f the Supreme Court has repeatedly given express endorsement to Mr. Justice\nJackson\xe2\x80\x99s view o f the separation of powers. Nixon v. Administrator o f General Services, 433 U.S. 425,\n443 (1977); Buckley v. Valeo. 424 U.S. 1, 122 (1976); United States v. Nixon, 418 U.S. 683, 707 (1974);\nOld Dominion Branch No. 496, National Association o f Letter Carriers v. Austin, 418 U.S. 264, 273 n.5\n(1974).\n\n6\n\n\x0ccompetency o f the President. His authority will be further buttressed in\nconnection with any initiative that is consistent with statutes\xe2\x80\x94and thus\nwith the exercise o f legislative power in an area of concurrent author\xc2\xad\nity\xe2\x80\x94that are more narrowly drawn than the Antideficiency A ct and\nthat would otherwise authorize the President to carry out his constitu\xc2\xad\ntionally assigned tasks in the manner he contemplates. In sum, with\nrespect to any presidential initiative that is grounded in his constitu\xc2\xad\ntional role and consistent with statutes other than the Antideficiency\nAct that are relevant to the initiative, the policy objective of the\nAntideficiency A ct must be considered in undertaking the initiative, but\nshould not alone be regarded as dispositive of the question of authority.\nUnfortunately, no catalogue is possible of those exercises of presiden\xc2\xad\ntial power that may properly obligate funds in advance of appropria\xc2\xad\ntions.9 Clearly, such an exercise of power could most readily be justi\xc2\xad\nfied if the functions to be performed would assist the President in\nfulfilling his peculiar constitutional role, and Congress has otherwise\nauthorized those or similar functions to be performed within the control\nof the President.10 Other factors to be considered would be the urgency\nof the initiative and the likely extent to which funds would be obligated\nin advance o f appropriations.\nIn sum, I construe the \xe2\x80\x9cauthorized by law\xe2\x80\x9d exception contained\nwithin 31 U.S.C. \xc2\xa7 665(a) as exempting from the prohibition enacted by\nthe second clause of that section not only those obligations in advance\nof appropriations for which express or implied authority may be found\nin the enactments of Congress, but also those obligations necessarily\nincident to presidential intiatives undertaken within his constitutional\npowers.\nII.\nIn addition to regulating generally obligations in advance o f appro\xc2\xad\npriations, the Antideficiency A ct further provides, in 31 U.S.C.\n\xc2\xa7 665(b):\nNo officer or employee of the United. States shall accept\nvoluntary service for the United States or employ per\xc2\xad\n9As stated by Attorney General (later Justice) Murphy:\n[T]he Executive has powers not enumerated in the statutes\xe2\x80\x94powers derived not from\nstatutory grants but from the Constitution. It is universally recognized that the consti\xc2\xad\ntutional duties o f the Executive carry with them constitutional powers necessary for\ntheir proper performance. These constitutional powers have never been specifically\ndefined, and in fact cannot be, since their extent and limitations are largely dependent\nupon conditions and circumstances. In a measure this is true with respect to most of\nthe powers o f the Executive, both constitutional and statutory. T he right to take\nspecific action might not exist under one state of facts, while under another it might be\nthe absolute duty of the Executive to take such action.\n39 Op. A tt\xe2\x80\x99y Gen. 343, 347-48 (1939).\n10One likely category into which certain of these functions would fall would be Mthe conduct of\nforeign relations essential to the national security,*\xe2\x80\x99 referred to in the September 30, 1980, memoran\xc2\xad\ndum.\n\n7\n\n\x0csonal service in excess o f that authorized by law, except\nin cases o f emergency involving the safety of human life\nor the protection o f property.\nDespite the use of the term \xe2\x80\x9cvoluntary service,\xe2\x80\x9d the evident concern\nunderlying this provision is not government agencies\xe2\x80\x99 acceptance of the\nbenefit of services rendered without compensation. Rather, the original\nversion of \xc2\xa7 665(b) was enacted as part of an urgent deficiency appro\xc2\xad\npriation act in 1884, A ct of May 1, 1884, ch. 37, 23 Stat. 15, 17, in\norder to avoid claims for compensation arising from the unauthorized\nprovision o f services to the government by non-employees, and claims\nfor additional compensation asserted by government employees per\xc2\xad\nforming extra services after hours. That is, under \xc2\xa7 665(b), government\nofficers and employees may not involve the government in contracts\nfor employment, i.e., for compensated labor, except in emergency\nsitutations. 30 Op. Att\xe2\x80\x99y Gen. 129, 131 (1913).\nU nder \xc2\xa7 665(b), it is thus crucial, in construing the government\xe2\x80\x99s\nauthority to continue functions in advance o f appropriations, to inter\xc2\xad\npret the phrase \xe2\x80\x9cemergencies involving the safety of human life or the\nprotection of property.\xe2\x80\x9d A lthough the legislative history of the phrase\nsheds only dim light on its precise meaning, this history, coupled with\nan administrative history\xe2\x80\x94 of which Congress is fully aware\xe2\x80\x94of the\ninterpretation o f an identical phrase in a related budgeting context,\nsuggests two rules for identifying those functions for which government\nofficers may employ personal services for compensation in excess of\nlegal authority other than \xc2\xa7 665(b) itself. First, there must be some\nreasonable and articulable connection between the function to be per\xc2\xad\nformed and the safety o f human life or the protection of property.\nSecond, there must be some reasonable likelihood that the safety of\nhuman life or the protection of property would be compromised, in\nsome degree, by delay in the performance of the function in question.\nAs originally enacted in 1884, the provision forbade unauthorized\nemployment \xe2\x80\x9cexcept in cases of sudden emergency involving the loss of\nhuman life or the destruction of property.\xe2\x80\x9d 23 Stat. 17. (Emphasis\nadded.) The clause was added to the House-passed version of the\nurgent deficiency bill on the floor of the Senate in order to preserve the\nfunction o f the government\xe2\x80\x99s \xe2\x80\x9clife-saving stations.\xe2\x80\x9d One Senator cau\xc2\xad\ntioned:\nIn other words, at the life-saving stations of the United\nStates, for instance, the officers in charge, no m atter what\nthe urgency and w hat the emergency might be, would be\nprevented [under the House-passed bill] from using the\nabsolutely necessary aid which is extended to them in\nsuch cases because it had not been provided for by law in\na statute.\n8\n\n\x0c15 Cong. Rec. 2,143 (1884) (remarks of Sen. Beck); see also id. at 3,41011 (remarks o f Rep. Randall). This brief discussion confirms what the\noriginally enacted language itself suggests, namely, that Congress ini\xc2\xad\ntially contemplated only a very narrow exception to what is now\n\xc2\xa7 665(b), to be employed only in cases of dire necessity.\nIn 1950, however, Congress enacted the modern version of the\nAntideficiency Act and accepted revised language for 31 U.S.C.\n\xc2\xa7 665(b) that had originally been suggested in a 1947 report to Congress\nby the Director of the Bureau of the Budget and the Comptrollex\nGeneral. Without elaboration, these officials proposed that \xe2\x80\x9ccases o f\nsudden emergency\xe2\x80\x9d be amended to \xe2\x80\x9ccases of emergency,\xe2\x80\x9d \xe2\x80\x9closs o f\nhuman life\xe2\x80\x9d to \xe2\x80\x9csafety of human life,\xe2\x80\x9d and \xe2\x80\x9cdestruction of property\xe2\x80\x9d to\n\xe2\x80\x9cprotection of property.\xe2\x80\x9d These changes were not qualified or ex\xc2\xad\nplained by the report accompanying the 1947 recommendation or by\nany aspect o f the legislative history of the general appropriations act\nfor fiscal year 1951, which included the modern \xc2\xa7 665(b). A ct of Sep\xc2\xad\ntember 6, 1950, Pub. L. No. 81-759, \xc2\xa7 1211, 64 Stat. 765. Consequently,\nwe infer from the plain import of the language of their amendments\nthat the drafters intended to broaden the authority for emergency\nemployment. In essence, they replaced the apparent suggestion of a\nneed to show absolute necessity with a phrase more readily suggesting\nthe sufficiency of a showing of reasonable necessity in connection with\nthe safety of human life or the protection of property in general.\nThis interpretation is buttressed by the history of interpretation by\nthe Bureau of the Budget and its successor, the Office of Management\nand Budget, of 31 U.S.C. \xc2\xa7 665(e), which prohibits the apportionment\nor reapportionment of appropriated funds in a manner that would\nindicate the need for a deficiency or supplemental appropriation, except\nin, among other circumstances, \xe2\x80\x9cemergencies involving the safety of\nhuman life, [or] the protection of property.\xe2\x80\x9d \xc2\xa7 665(e)(1)(B).11 Directors\n11 As provisions containing the same language, enacted at the same time, and aimed at related\npurposes, the emergency provisions of \xc2\xa7\xc2\xa7 665(b) and 665(e)(1)(B) should not be deemed in pan materia\nand given a like construction, Northcross v. Memphis Board o f Education, 412 U.S. 427, 428 (1973),\nalthough at first blush, it may appear that the consequences of identifying a function as an \xe2\x80\x9cemer\xc2\xad\ngency" function may differ under the two provisions. Under \xc2\xa7 665(b), if a function is an emergency\nfunction, then a federal officer or employee may employ w hat otherwise would constitute unauthor\xc2\xad\nized personal service for its performance; in this sense, the emergency nature of the function triggers\nadditional obligational authority for the government. In contrast, under \xc2\xa7 665(e)(lXB), if a function is\nan emergency function, OMB may allow a deficiency apportionment or reapportionment\xe2\x80\x94this permit\xc2\xad\nting the expenditure of funds at a rate that could not be sustained for the entire fiscal year without a\ndeficiency\xe2\x80\x94but the effect of such administrative action would not be to trigger new obligational\nauthority automatically. That is, Congress could always decline to enact a subsequent deficiency\nappropnation, thus keeping the level of spending at the previously appropriated level.)\nThis distinction, however, is outweighed by the common -practical effect of the tw o provisions,\nnamely, that when authority is exercised under either emergency exception, Congress, in order to\naccomplish all those functions it has authorized, must appropriate more money. If, after a deficiency\napportionment or reapportionment, Congress did not appropriate additional funds, its purposes would\nbe thwarted to the extent that previously authorized functions could not be continued until the end of\nthe fiscal year. This fact means that, although deficiency apportionments and reapportionments do not\ncreate new obligational authority, they frequently impose a necessity for further appropnations as\nContinued\n\n9\n\n\x0co f the Bureau o f the Budget and o f the Office of Management and\nBudget have granted dozens of deficiency reapportionments under this\nsubsection in the last 30 years, and have apparently imposed no test\nm ore stringent than the articulation of a reasonable relationship be\xc2\xad\ntween the funded activity and the safety of human life or the protection\nof property. Activities for which deficiency apportionments have been\ngranted on this basis include Federal Bureau o f Investigation criminal\ninvestigations, legal services rendered by the Department of Agricul\xc2\xad\nture in connection with state meat inspection programs and enforce\xc2\xad\nment o f the Wholesome M eat Act o f 1967, 21 U.S.C. \xc2\xa7\xc2\xa7601-695, the\nprotection and management of commodity inventories by the Commod\xc2\xad\nity Credit Corporation, and the investigation o f aircraft accidents by\nthe National Transportation Safety Board. These few illustrations dem\xc2\xad\nonstrate the common sense approach that has guided the interpretation\no f \xc2\xa7 665(e).12 Most important, under \xc2\xa7 665(e)(2), each apportionment or\nreapportionment indicating the need for a deficiency or supplemental\nappropriation has been reported contemporaneously to both Houses of\nCongress, and, in the face o f these reports, Congress has not acted in\nany way to alter the relevant 1950 wording of \xc2\xa7 665(e)(1)(B), which is,\nin this respect, identical to \xc2\xa7 665(b).13\nIt was along these lines that I approved, for purposes of the im\xc2\xad\nmediate crisis, the categories of functions that the Director of the\nOffice o f Management and Budget included in his September 30, 1980,\nmemorandum, as illustrative of the areas of government activity in\nwhich emergencies involving the safety of human life and the protec\xc2\xad\ncompelling as the government\'s employment of personal services in an emergency in advance of\nappropriations. There is thus no genuine reason for ascribing, as a matter of legal interpretation,\ngreater or lesser scope to one emergency provision than to the other.\n12 In my April 25, 1980, memorandum to you, I opined that the Antideficiency Act permits\ndepartm ents and agencies to terminate operations, upon a lapse in appropriations, in an orderly way.\n43 Op. A tt\'y Gen No. 24, at 1 [4 Op. O .L C .\xe2\x80\x94(1980)]. The functions that, in my judgment, the\norderly shutdow n o f an agency for an indefinite period or permanently would entail include the\nemergency protection, under \xc2\xa7 665(b), o f the agency\'s property by its own employees until such\nprotection can be arranged by another agency with appropriations; compliance, within the \xe2\x80\x9cauthorized\nby law \xe2\x80\x9d exception to \xc2\xa7 665(a), with statutes providing for the rights o f employees and the protection\no f governm ent information; and (he transfer, also under the \xe2\x80\x9cauthorized by law\xe2\x80\x9d exception to \xc2\xa7 665(a),\no f any matters within the agency\'s jurisdiction that are also under the jurisdiction o f another agency\nthat Congress has funded and thus indicated its intent to pursue. Compliance with the spirit, as well as\nthe letter, o f the Antideficiency Act requires that agencies incur obligations for these functions in\nadvance of appropriations only to the minimum extent necessary to the fulfillment o f their legal duties\nand with the end in mind o f terminating operations for some substantial period It would hardly be\nprudent, much less consistent with the spirit of the Antideficiency Act, for agencies to incur obliga\xc2\xad\ntions. in advance o f appropriations in connection with \xe2\x80\x9cshutdown functions\xe2\x80\x9d that would only be\njustified by a more substantia] lapse in appropriations than the agency, in its best judgment, expects.\n13T he Supreme C ourt has referred repeatedly to thevenerable rule that the construction of a statute by those charged with its execution\nshould be followed unless there are compelling indications that it is wrong, especially\nwhen Congress has refused to alter the administrative construction.\nR ed Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969) (footnotes omitted). Since enacting the\nmodern Antideficiency A ct, including \xc2\xa7 665(e)(1)(B), in 1950, Congress has amended the act three\ntimes, including one amendment to another aspect o f \xc2\xa7 665(e). At no time has Congress altered this\ninterpretation o f \xc2\xa7665(eXl)(B) by the Office of Management and Budget, which has been consistent\nand is consistent with the statute. Compare 43 Op. A tt\'y Gen. No. 24, 4 Op. O.L.C. 16.(1980).\n\n10\n\n\x0ction of property might arise. To erect the most solid foundation for the\nExecutive Branch\xe2\x80\x99s practice in this regard, I would recommend that, in\npreparing contingency plans for periods of lapsed appropriations, each\ngovernment department or agency provide for the Director of the\nOffice of Management and Budget some written description, that could\nbe transmitted to Congress, of what the head of the agency, assisted by\nits general counsel, considers to be the agency\xe2\x80\x99s emergency functions.\nIn suggesting the foregoing principles to guide the interpretation of\n\xc2\xa7 665(b), I must add my view that, in emergency circumstances in\nwhich a government agency may employ personal service in excess o f\nlegal authority other than \xc2\xa7 665(b), it may also, under the authority o f\n\xc2\xa7 665(b), it may also, under the authority of \xc2\xa7 665(b), incur obligations\nin advance o f appropriations for material to enable the employees\ninvolved to meet the emergency successfully. In order to effectuate the\nlegislative intent that underlies a statute, it is ordinarily inferred that a\nstatute \xe2\x80\x9ccarries with it all means necessary and proper to carry out\neffectively the purposes of the law.\xe2\x80\x9d United States v. Louisiana, 265 F.\nSupp. 703, 708 (E.D. La. 1966) (three-judge court), a ffd , 386 U.S. 270\n(1967). Accordingly, when a statute confers authorities generally, those\npowers and duties necessary to effectuate the statute are implied. See\n2A J. Sutherland, Statutes and Statutory Construction \xc2\xa7 55.04 (Sands\ned. 1973). Congress has contemplated expressly, in enacting \xc2\xa7 655(b),\nthat emergencies will exist that will justify incurring obligations for\nemployee compensation in advance of appropriations; it must be as\xc2\xad\nsumed that, when such an emergency arises, Congress would intend\nthose persons so employed to be able to accomplish their emergency\nfunctions with success. Congress, for example, having allowed the gov\xc2\xad\nernment to hire firefighters must surely have intended that water and\nfiretrucks would be available to them .14\nIII.\nThe foregoing discussion articulates the principles according to\nwhich, in my judgment, the Executive can properly identify those\nfunctions that the government may continue upon lapses in appropria\xc2\xad\ntions. Should a situation again present itself as extreme as the emer\xc2\xad\ngency that arose on October 1, 1980, this analysis should assist in\nguiding planning by all departments and agencies of the government.\nAs the law is now written, the Nation must rely initially for the\nefficient operation of government on the timely and responsible func\xc2\xad\ntioning of the legislative process. The Constitution and the\n14 Accord, 53 Comp. Gen. 71 (1973), holding that, in light of a determination by the Administrator\nof General Services that such expenses were \xe2\x80\x9c necessarily incidental to the protection of property of\nthe United States during an extreme emergency,\xe2\x80\x9d id. at 74, the Comptroller Genera) would not\nquestion General Services Administration (GSA) payments for food for GSA special police who were\nproviding round-the-clock protection for a Bureau of Indian Affairs building that had been occupied\nwithout authority.\n\n11\n\n\x0cAntideficiency A ct itself leave the Executive leeway to perform essen\xc2\xad\ntial functions and make the government \xe2\x80\x9cworkable.\xe2\x80\x9d Any inconvenience\nthat this system, in extreme circumstances, may bode is outweighed, in\nmy estimation, by the salutary distribution of power that it embodies.\nRespectfully,\nB e n j a m i n R.\n\n12\n\nC iv il e t t i\n\n\x0c'


b'Historical Use of Assistant Attorneys General\nThe Attorney General may reassign Assistant Attorneys General from one unit to another within\nthe Department of Justice. This has been done on at least ten occasions and does not require\nthat the Assistant Attorney General be reconfirmed by the Senate.\n\nOctober 27, 1983\nM\n\nem orandum\n\nO p in io n\n\nfor the\n\nD\n\nepu ty\n\nA ttorney G eneral\n\nThis responds to your request\'for information on whether the Attorney\nGeneral may reassign Assistant Attorneys General (Assistants) from one unit\nto another without resubmitting their names to Congress, and whether the\nAttorney General has ever done so. We believe that the Attorney General is\nauthorized to make such shifts as internal Department transfers because, except\nfor the Assistant for Administration, 28 U.S.C. \xc2\xa7 507, the Assistants are not\nlimited to any statutory functions. 28 U.S.C. \xc2\xa7 506.1 See also id. \xc2\xa7\xc2\xa7 509, 510.\nWe have identified at least ten occasions on which an Attorney General has\nmade such transfers. In one other instance, discussed below, political consider\xc2\xad\nations persuaded the Attorney General to make the shift by having the Assistant\nresign from his first position and be nominated and confirmed again as an\nAssistant for the second position.\nI. Historical Examples\nThe R egister o f the United States D epartm ent o f Justice and the Federal\nCourts (1983) does not list Assistants by division until 1925, shortly after\nappointment by division apparently began. Id. at 140. By comparing names of\n\nAssistants heading the divisions since then, we have identified the following\nindividuals who served consecutively as the head of two different units in the\nDepartment and who were transferred to their second position without a new\nconfirmation hearing.\n1.\nRobert H. Jackson: Mr. Jackson became head of the Tax Division in\nMarch 1936. In January 1937 he was designated head of the Antitrust Division\nto fill a vacancy caused by a resignation.2\n1Section S06 states that \xe2\x80\x9c [t]he President shall appoint, by and with the advice and consent o f the Senate, ten\nA ssistant A ttorneys G eneral, w ho shall assist the Attorney G eneral in the perform ance o f his duties.\xe2\x80\x9d P rior to\n1950, this language was codified at 5 U.S.C, \xc2\xa7 295.\n2 N.Y. Tim es, Jan. 19, 1937, at 7, col. 7.\n\n165\n\n\x0c2. la m es W. M orris: Mr. Morris was appointed to head the Claims (now\nCivil) Division in November 1935. In January 1937, he was transferred to the\nTax Division to fill the vacancy left by Mr. Jackson\xe2\x80\x99s transfer, described\nabove.3\n3. Tom C. Clark/Wendell Berge: Mr. Clark was placed in charge of the\nAntitrust Division in early 1943, and Mr. Berge was placed in charge of the\nCriminal Division in 1941. As part of a Department reorganization aimed at\nincreasing efficiency in response to the demands of World War II, the Attorney\nGeneral had Mr. Clark and Mr. Berge exchange positions in August 1943.4\n4. D a vid L. Bazelon: Mr. Bazelon was the Assistant in charge of the Land and\nNatural Resources Division from 1946 until he was transferred in the Spring of\n1947 to head the newly created Office of Alien Property.5\n5. John F. Sonnett: Mr. Sonnett served as Assistant in charge of the Claims\nDivision from 1945 until May 1947, when Attorney General Clark shifted him\nto the Antitrust Division to fill a vacancy caused by the resignation of Wendell\nBerge.6\n6. Theron Lam ar Caudle: Mr. Caudle headed the Criminal Division from\n1945 until July 1947, when he was moved to the Tax Division.7\n7. Jam es M. M clnem ey: As the result of a Department-wide reshuffling in\nthe early 1950s, Mr. Mclnemey was transferred from the Criminal Division to\nthe Land and Natural Resources Division in August 1952.8\n8. M alcolm R. Wilkey: Mr. Wilkey headed the Office of Legal Counsel for a\nyear until he was shifted in 1959 by Attorney General Rogers to the Criminal\nDivision. Att\xe2\x80\x99y Gen. Order No. 177-59 (Mar. 2 6 ,1959).9\n9. Edwin L. Weisl, Jr.: Mr. Weisl was moved by Attorney General Clark in\n1967 from the Land and Natural Resources Division to the Civil Division.\nAtt\xe2\x80\x99y Gen. Order No. 384-67 (Oct. 9, 1967).10\nThere was one transfer that deviated from this pattern. After passage of the\nCivil Rights Act of 1957, Attorney General Rogers chose W. Wilson White,\nthen Assistant Attorney General for this Office, to head the newly created Civil\nRights Division.11 One reported reason for the choice of Mr. White was to\navoid debate in Congress over the new division by eliminating the need for a\nconfirmation hearing.12 However, unfavorable reaction from Congress, which\nwanted to scrutinize the first head of the Civil Rights Division, persuaded the\n3 Id.\n4 N .Y . T im es, A ug. 29, 1943, at 27, col. 1.\n5N .Y . Tim es, Apr. 25, 1947, at 18, col. 7. Prior to that, there had been an O ffice of A lien Property headed\nby a directo r and a separate alien property litigation unit. Id. See also Register, supra, at 13 (41st ed. 1947).\n6 N .Y . Tim es, M ay 2, 1947, at 28, col. 2. See also Register, supra, at 3 (41st ed. 1947).\n7 See Register, supra , a t 4 (41st ed. 1947); H.R. Rep. No. 1079, 83rd C ong., 1st Sess. 90, 91, 95 (1953).\n8 N .Y . T im es, Aug. 9, 1952, at 1, col. 6; id., Aug. 6, 1952, at 12, col. 6.\n9 N .Y . Tim es, M ar. 24, 1959, at 27, col. 2. The Times noted that \xe2\x80\x9c [t]he m ove to the Crim inal Division does\nnot require S enate co n firm atio n .\xe2\x80\x9d\n10N.Y . T im es, O ct. 1, 1967, at l.c o l. 2.\n" S e e A tt\xe2\x80\x99y G en. O rder No. 155-57 (D ec. 9, 1957).\n12 N.Y. T im es, Nov. 22, 1957, at 1, col. 2 (\xe2\x80\x9cThe expected struggle over confirm ation, with all its likely\npersonal attacks, w ould doubtless have discouraged any ju d g es o r leading lawyers in private practice from\naccepting the civil rights position.\xe2\x80\x9d).\n\n166\n\n\x0cAttorney General and the White House to change their plans. Mr. White\nresigned his position with this Office, received a recess appointment as Assis\xc2\xad\ntant Attorney General for the Civil Rights Division, and was nominated for the\npermanent position. After a six-month delay, the Senate confirmed him.\nII. Prior Memoranda\nThis Office has written at least three times with reference to the fungibility\nof Assistants. In 1953 we responded to inquiries from the Deputy Attorney\nGeneral by stating flatly that \xe2\x80\x9c[t]he several Assistant Attorneys General are not\nrequired to be assigned to any particular divisions.\xe2\x80\x9d Memorandum for Russell\nL. Malone, Jr., Deputy Attorney General from Ellis Lyons, Acting Assistant\nAttorney General, Executive Adjudications Division (Jan. 15, 1953). In 1957,\nwe examined the issue again in a memorandum prepared for use by the\nAttorney General. Noting the lack of any statutory requirement that any Assis\xc2\xad\ntant perform specific duties and the statutory vesting of all functions of the\nDepartment, with limited exceptions, in the Attorney General, 28 U.S.C. \xc2\xa7 509,\nwe concluded that there were no statutory limits on the duties of any Assistant\nAttorney General. Memorandum on Statutory Specification of Duties of Assis\xc2\xad\ntant Attorneys General (Feb. 18, 1957). Finally, earlier this year we wrote an\nopinion explaining why there were no constraints on the use of the tenth\nAssistant slot created by Pub. L. No. 95-598, \xc2\xa7 218, 92 Stat. 2549, 2662\n(1978). We concluded that, \xe2\x80\x9c[a]s with the other nine Assistant Attorney Gen\xc2\xad\neral slots we believe that the Attorney General may exercise unfettered discre\xc2\xad\ntion in deciding how this new Assistant Attorney General can best assist him.\xe2\x80\x9d\nMemorandum for Edward C. Schmults, Deputy Attorney General from Ralph\nW. Tarr, Deputy Assistant Attorney General, Office of Legal Counsel (Feb. 8,\n1983).\nConclusion\nThe Attorney General is authorized under 28 U.S.C. \xc2\xa7 506 to have ten\nAssistants. He may assign them any duties he chooses, 28 U.S.C. \xc2\xa7\xc2\xa7 509, 510,\nincluding the supervision of a division other than that for which they were\nnominated and confirmed. This has in fact that been done at least ten times and\nthere is no reason to believe it cannot be done in the future.\nTheodore\n\nB.\n\nO lso n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n167\n\n\x0c'


b'D ecem ber 14, 1977\n\n77-69\n\nMEMORANDUM OPINION FOR THE\nDIRECTOR OF THE NAVAL PETROLEUM\nAND OIL SHALE RESERVES, DEPARTMENT\nOF ENERGY\nPresidential Approval of Naval Petroleum Reserve\nContract NOd 4219-2664\n\nThis is in response to your request that this Office reconsider the\nA ttorney General\xe2\x80\x99s statement, drafted by this Office, that Presidential\napproval of Naval Petroleum Reserve Contract NOd 4219-2664 was\nrequired by 10 U.S.C. \xc2\xa77431(a) (Supp. 1976). That statement reads as\nfollows:\n[w]e are of the opinion that the Secretary of the Navy is author\xc2\xad\nized to enter into Contract NOd 4219-2664, subject to consultation\nwith Congress and the approval of the President, as required by 10\nU.S.C. \xc2\xa7 7431(a) (Supp. 1976).\nYou have evidently understood this to mean that the statute required\nPresidential approval of the contract in question.\nSection 7431(a) enumerates a number of types of contracts that re\xc2\xad\nquire the approval of the President after consultation with Congress.\nThe common element of these transactions is that they involve the\npossible diminution of the rights of the United States with respect to\nownership of the reserves, production, or sale of petroleum from the\nreserves, or receipt of moneys due to the United States on account of\nthe reserves. Contract NOd 4219-2664 gives the consent of the United\nStates to the transfer of certain rights and liabilities under previous\ncontracts with Standard Oil Company of California (\xe2\x80\x9cSocal\xe2\x80\x9d) to a\nwholly owned subsidiary. Socal guarantees the payment of all future\nliabilities o f the subisidiary, the subsidiary assumes all of the existing\nliabilities of Socal, and both agree that the United States is not liable\nfor any new costs, taxes, or expenses arising from the agreement.\nAccordingly, the contract does not fall within the categories enumer\xc2\xad\nated by \xc2\xa7 7431(a).\n278\n\n\x0cThe statement meant the contract was authorized by law but that\nCongress should be consulted and Presidential approval obtained to the\nextent required by 10 U.S.C. \xc2\xa7 7431(a) (Supp. 1976). Because this con\xc2\xad\ntract is not within \xc2\xa7 7431(a), the reference to action required by that\nstatute should be disregarded.\nL eon U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n279\n\n\x0c'


b'Authority of National Telecommunications and Information\nAdministration to Monitor Radio Communications\nT h e N atio n al T e le c o m m u n ic a tio n s an d In fo rm atio n A d m in istratio n ( N T IA ) m ay m o n ito r\nra d io c o m m u n icatio n s to th e ex ten t reaso n ab ly necessary to d isc h a rg e its functions\nu n d e r 47 U .S .C . \xc2\xa7 305(a) an d 15 U .S .C . \xc2\xa7 272(12) & (13).\nT itle III o f th e O m n ib u s C rim e C o n tro l a n d S afe S tre ets A c t o f 1963 p ro h ib its N T IA\nfro m a u ra lly m o n ito rin g c o m m u n ic a tio n s b etw e e n a rad io an d a land-line telep h o n e.\n\nFebruary 12, 1980\nM E M O R A N D U M O P IN IO N FO R T H E G E N E R A L C O U N SEL,\nD E PA R T M E N T O F COM M ERCE\nThis responds to your request for our views on the authority o f the.\nNational Telecom m unications and Inform ation Adm inistration (N T IA )\nto m onitor certain radio transmissions. You specify that N T IA will\nm onitor these com m unications only to the extent necessary to perform\nits authorized functions, and that it will not divulge the contents or the\nexistence o f any particular intercepted message. Similarly, you say,\nN T IA will not attem pt to decode coded messages.\nF o r the reasons we state below, w e believe that, with one exception,\nN T IA may conduct these m onitoring activities to the extent they are\nreasonably necessary to discharge N T IA \xe2\x80\x99s statutory functions under 47\nU.S.C. \xc2\xa7 305(a) and 15 U.S.C. \xc2\xa7272(12) & (13). T he one exception is\nthat N T IA may not aurally m onitor com m unications between a radio\nand a land-line telephone.\n\nI. NTIA Authority to Monitor Radio Communications\nN T IA derives its authority from the Secretary o f Com merce. No\nstatute explicitly em powers the Secretary to m onitor radio com m unica\xc2\xad\ntions, but w e believe that tw o statutes implicitly authorize the Secretary\nto m onitor in certain situations. First, \xc2\xa7 305(a) o f the Com munications\nA ct o f 1934, 47 U.S.C. \xc2\xa7 305(a), provides that \xe2\x80\x9c [r]adio stations belong\xc2\xad\ning to and operated by the United States . . . shall use such frequen\xc2\xad\ncies as shall be assigned . . . by the President.\xe2\x80\x9d As you know, when\nthe function o f assigning frequencies to governm ent stations was vested\nin the Office o f Telecom m unications Policy (OTP), see Reorganization\nPlan No. 1 o f 1970, 84 Stat. 2083, we expressed the opinion that O T P\nwas \xe2\x80\x9cimplicitly authorized to conduct m onitoring activities related to\n\n400\n\n\x0cits statutory responsibilities under \xc2\xa7 305(a).\xe2\x80\x9d We reasoned that O T P \xe2\x80\x99s\nfunctions w ere analogous to those of the Federal Com m unications\nCommission, which assigns frequencies to radio stations not ow ned by\nthe governm ent and regulates certain aspects o f their transmissions.\nUnited States v. Sugden, 226 F.2d 281, 284 (9th Cir. 1955), a f f d per\ncuriam, 351 U.S. 916 (1956), held that the Commission can m onitor\nradio com m unications in order to carry out its duty o f assigning fre\xc2\xad\nquencies, because \xe2\x80\x9c [e]xcept by listening, how can the Commission tell\nwith certainty that a station is using its assigned frequency?\xe2\x80\x9d Id. By\nanalogy, we concluded, O T P was authorized to m onitor radio transm is\xc2\xad\nsions in the course o f perform ing its function o f assigning frequencies to\nstations owned by the governm ent. In 1977, this function was trans\xc2\xad\nferred to the Secretary of Commerce. Reorganization Plan No. 1 o f\n1977, as amended, \xc2\xa7 5(B), 91 Stat. 1633. You tell us that the Secretary\nhas delegated this responsibility to N TIA . Plainly, then, N T IA has the\nsame authority as O T P had to m onitor radio com m unications to the\nextent reasonably necessary to carry out its statutory responsibilities\nunder \xc2\xa7 305(a).\nT he second statutory source o f N T IA \xe2\x80\x99s authority to m onitor is 15\nU.S.C. \xc2\xa7 272(12) & (13). These subsections provide:\nT he Secretary o f Com m erce . . . is authorized to under\xc2\xad\ntake . . .\n*\n\n*\n\n*\n\n*\n\n*\n\n(12) the investigation o f the conditions w hich affect the\ntransmission o f radio waves from their source to a\nreceiver;\n(13) the com pilation and distribution o f inform ation on\nsuch transmission o f radio waves as a basis for choice of\nfrequencies to be used in radio operations.\nYou tell us that the Secretary o f C om m erce has also delegated these\nfunctions to N TIA . W e believe that the reasoning o f Sugden applies\nhere as well; to the extent that the m onitoring you describe is \xe2\x80\x9c reason\xc2\xad\nably ancillary to the effective perform ance o f [these statutory] responsi\xc2\xad\nbilities,\xe2\x80\x9d United States v. Southwestern Cable Co., 392 U.S. 157, 178\n(1968), we believe that N T IA is implicitly authorized to conduct it. See,\ne.g., Permian Basin Area R ate Cases, 390 U.S. 747, 777, 780 (1968).\nYour letter appears to assume that Executive O rder No. 12046 con\xc2\xad\nfers on N T IA additional authority to m onitor radio communications.\nT hat executive order does not purport expressly to authorize the Secre\xc2\xad\ntary of Com m erce to monitor. Y our letter seems to suggest, how ever,\nthat such authority is implicit in the executive o rd er\xe2\x80\x99s instruction that\nthe Secretary \xe2\x80\x9cserve as the President\xe2\x80\x99s principal adviser on telecom \xc2\xad\nmunications policies,\xe2\x80\x9d \xc2\xa7 2-401, conduct econom ic and technical analy\xc2\xad\nses o f telecomm unications policies, \xc2\xa7 2-412, represent the Executive\n\n401\n\n\x0cBranch in dealings w ith the Federal C om m unications Commission, \xc2\xa7 2407, and perform similar tasks. But as a general m atter,1 an executive\no rd er cannot enlarge the pow er o f the Executive Branch beyond w hat\nC ongress has granted. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer,\n343 U.S. 579, 585 (1952). T herefore Executive O rder No. 12046 does\nnot expand N T IA \xe2\x80\x99s pow er to m onitor beyond w hat can reasonably be\ninferred from 47 U.S.C. \xc2\xa7 305(a) and 15 U.S.C. \xc2\xa7272(12) & (13).2\nPartly because your letter assumed that Executive O rder No. 12046\nprovides an independent source o f authority to m onitor, you did not\nmake clear the extent to w hich N T IA needs to conduct the sorts o f\nm onitoring activities your letter describes in order to fulfill its statutory\nresponsibilities. Thus w e cannot specify w hich am ong the kinds of\ntransmissions you mention in your letter may be m onitored. In general,\nwe believe that N T IA has authority to m onitor both electrical impulses\nand voices on nongovernm ent frequencies; but it may m onitor them\nonly to the extent that such m onitoring is reasonably necessary to\nenable N T IA to assign frequencies to governm ent stations, and to\nperform the functions incident to assigning frequencies, or to investigate\nthe conditions affecting the transmission o f radio waves and to compile\nand distribute inform ation about radio w aves \xe2\x80\x9cas a basis for choice o f\nfrequencies to be used in radio operations.\xe2\x80\x9d This authority is, o f course,\nsubject to the statutory restrictions to w hich w e turn next.\n\nII. Statutory Limits on NTIA\xe2\x80\x99s Authority to Monitor\nA t first glance, tw o statutes appear to restrict N T IA \xe2\x80\x99s authority.\nSection 605 o f the Com m unications A ct o f 1934, 47 U.S.C. \xc2\xa7605,\nprovides, in relevant part, that \xe2\x80\x9c [n]o person not being authorized by the\nsender shall intercept any radio com m unication and divulge or publish\nthe existence, contents, substance, purport, effect, o r meaning o f such\nintercepted com m unication to any person.\xe2\x80\x9d T he D epartm ent o f Justice\nhas consistently taken the position that since \xc2\xa7 605 is phrased in the\nconjunctive\xe2\x80\x94\xe2\x80\x9c intercept . . . and divulge\xe2\x80\x9d (emphasis added)\xe2\x80\x94a gov\xc2\xad\nernm ent agency may intercept radio com m unications so long as it does\nnot disclose inform ation about them to any person outside the G overn\xc2\xad\n\xe2\x80\x99 N o inherent presidential pow ers, derived d irectly from the C onstitution, appear to be involved in\nN T IA m onitoring. See generally United Stales v. United States District Court, 407 U.S. 297, 308-12\n(1972); Fleishm an & Aufses, Law and Orders: The Problem o f Presidential Legislation. 40 L aw &\nC ontem p. Probs., Sum m er 1976, at-1, 11-13. In any event, as w e noted, E xecutive O rder No.. 12046\ndoes not expressly attem pt to authorize the S ecretary o f C om m erce to m onitor, and w e are reluctant\nto assume that inherent executive pow ers have been invoked by implication.\n2 A s you note, E xecutive O rd e r N o. 11556 assigned to O T P m any functions similar to those\nassigned to the Secretary in Executive O rd e r No. 12046, and \xc2\xa7 5(B) o f Reorganization Plan No. 1 o f\n1977 transferred \xe2\x80\x9c (a]ll . . . functions o f the O ffice o f T elecom m unications Policy and o f its D irector,\xe2\x80\x9d\nw ith exceptions not relevant here, to the Secretary o f C om m erce. But for the reasons w e have given,\nE xecutive O rd e r No. 11556 could not have expanded O T P \xe2\x80\x99s pow ers beyond w hat w as granted by\nstatute, and in any event a-reorganization Mmay not have th e effect o f . . . authorizing an agency to\nexercise a function w hich is not expressly authorized by law at the time the plan is transm itted to\nC ongress." 5 U.S.C. \xc2\xa7 905(a)(4). T h u s R eorganization Plan No. 1 o f 1977 does not give N T IA any\nadditional statu to ry authority.\n\n402\n\n\x0cment. See Office o f Legal Counsel M em orandum for the D irector,\nFederal Bureau o f Investigation, May 29, 1979, 3 Op. O.L.C. 240, 245\n(1979) (hereinafter \xe2\x80\x9c 1979 O LC M em orandum \xe2\x80\x9d) H.R. Rep. No. 1283,\nPt. 1, 95th Cong., 2d Sess. 15 (1978). See also United States v. Butenko,\n494 F.2d 593, 623-24 (3rd Cir.) (Aldisert, J;, concurring and dissenting),\ncert, denied, 419 U.S. 881 (1974). M oreover, as the language o f \xc2\xa7605\nsuggests, only divulging the contents o r existence o f a particular \xe2\x80\x9ccom \xc2\xad\nmunication\xe2\x80\x9d is prohibited. In our view, N T IA would not violate \xc2\xa7 605\nif, after monitoring, it divulged only aggregate statistics about the use\no f radio frequencies. You stipulate that you will not reveal the contents\no f communications to any other party; so long as \xe2\x80\x9ccontents\xe2\x80\x9d is under\xc2\xad\nstood broadly to include the \xe2\x80\x9cexistence\xe2\x80\x9d and \xe2\x80\x9cpurport, effect, o r m ean\xc2\xad\ning\xe2\x80\x9d o f the particular communication, w e believe that N T IA \xe2\x80\x99s m onitor\xc2\xad\ning will not run afoul o f 47 U.S.C. \xc2\xa7 605.\nTitle III o f the Omnibus Crime C ontrol and Safe Streets A ct o f 1968,\nas amended, 18 U.S.C. \xc2\xa7\xc2\xa7 2510-2520, presents a more complex question.\nIt\nprovides\nthat\nwith\ncertain\nexceptions,\n\xe2\x80\x9cany\nperson\nwho . . . willfully intercepts, endeavors to intercept, o r procures any\nother person to intercept or endeavor to intercept, any wire or oral\ncom m unication . . . shall be fined not m ore than $10,000 o r im pris\xc2\xad\noned not more than five years, o r both.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 2511(1 )(a). A\n\xe2\x80\x9cwire com m unication\xe2\x80\x9d is defined as:\nany com m unication made in whole or in part through the\nuse o f facilities for the transmission o f com m unications by\nthe aid o f wire, cable, o r other like connection between\nthe point o f origin and the point o f reception furnished or\noperated by any person engaged as a com m on carrier in\nproviding or operating such facilities for the transmission\no f interstate o r foreign communications.\n18 U.S.C. \xc2\xa72510(1). An oral com m unication is defined as \xe2\x80\x9cany oral\ncommunication uttered by a person exhibiting an expectation that such\ncommunication is not subject to interception under circum stances justi\xc2\xad\nfying such expectation.\xe2\x80\x9d 18 U.S.C. \xc2\xa72510(2). Radios contain wires, but\nthe wires are not \xe2\x80\x9cconnection[s] between the point o f origin and the\npoint o f reception furnished o r operated by . . . a com m on carrier.\xe2\x80\x9d\nF o r this reason, we have previously expressed the view that com m uni\xc2\xad\ncations betw een tw o radios are not \xe2\x80\x9cwire com m unications\xe2\x80\x9d within the\nmeaning o f Title III. 1979 O L C M emorandum, 3 Op. O.L.C. at 242.\nT he Ninth Circuit has reached the same conclusion. United States v.\nH all, 488 F.2d 193, 196-97 (9th Cir. 1973).\nOn the basis o f the legislative history o f Title III, see e.g., S. Rep. No.\n1097, 90th Cong., 2d Sess. 66, 75, 89-90 (1968); see also United States v.\nHall, 488 F.2d at 198, w e have previously concluded, 1979 O LC\nM emorandum, 3 Op. O.L.C. at 242 & n.2, that when Congress limited\nthe definition o f \xe2\x80\x9coral com m unication\xe2\x80\x9d to com m unications by a person\n\n403\n\n\x0cw ho has \xe2\x80\x9can expectation that such com m unication is not subject to\ninterception under circum stances justifying such expectation,\xe2\x80\x9d it in\xc2\xad\ntended to include only those com m unications made with a \xe2\x80\x9creasonable\nexpectation o f privacy\xe2\x80\x9d in the sense in w hich that term is used in\ndefining a \xe2\x80\x9csearch\xe2\x80\x9d under the F ourth Am endm ent, see, e.g., K atz v.\nUnited States. 389 U.S. 347, 351-53 (1967). See also United States v.\nUnited States District Court, 407 U.S. 297, 302 (1972). 1979 O L C M em o\xc2\xad\nrandum, 3 Op. O.L.C. at 242 & n.2. W e have also previously concluded\nthat radio users have no reasonable expectation o f privacy in ordinary\nradio transmissions. We reasoned that the \xe2\x80\x9cease of interception, the\nwidespread availability o f the technology required for interception, and\nthe ease o f access for the user to m ore private means o f com m unica\xc2\xad\ntion\xe2\x80\x9d all suggested that one cannot reasonably expect ordinary radio\ncom m unications to remain private. Id. at 243.3\nIt follows from these conclusions we have previously reached that\nordinary com m unications by radio are not \xe2\x80\x9coral com m unications\xe2\x80\x9d\nwithin the meaning o f Title III.4 As we have said, communications\nbetw een radios are also not \xe2\x80\x9c wire com m unications.\xe2\x80\x9d Thus Title III, like\n\xc2\xa7 605, does not prohibit N T IA from intercepting ordinary com m unica\xc2\xad\ntions between radios. W e know o f no other statute that applies.\nTitle III does, how ever, prohibit N T IA from m onitoring com m unica\xc2\xad\ntions betw een a party using a mobile telephone or other radio and a\nparty using a land-line telephone. \xe2\x80\x9c W ire com m unication\xe2\x80\x9d is defined by\nTitle III as \xe2\x80\x9cany com m unication made in whole or in part . . . by the\naid o f \xe2\x80\x99 wire or cable facilities furnished or operated by a common\ncarrier. 18 U.S.C. \xc2\xa72510(1) (emphasis added). In.the legislative history,\nCongress noted that this definition is intended to be \xe2\x80\x9ccom prehensive.\xe2\x80\x9d\nS. Rep. No. 1097, 90th Cong., 2d Sess. 89 (1968). Otherwise, the\nlegislative history seems to give no indication o f how Congress wished\nto treat com m unications between a radio telephone and a land-line\ntelephone. In these circum stances, we must follow the language o f the\nstatutory definition; since com m unications betweeen a radio telephone\nand a land-line telephone are made \xe2\x80\x9cin part through the use of facilities\nfor the transmission o f com m unications by the aid of wire, cable, or\no ther like connection . . . furnished or operated by . . . a common\ncarrier,\xe2\x80\x9d we must conclude that they are \xe2\x80\x9cw ire com m unications\xe2\x80\x9d under\nT itle III. T he Ninth Circuit, apparently the only court to have consid\xc2\xad\nered the issue, reached the same conclusion. United States v. Hall, 488\nF.2d at 197-98. Title III prohibits \xe2\x80\x9cany person\xe2\x80\x9d from \xe2\x80\x9cintercept[ing]\xe2\x80\x9d\nwire com m unications w ithout a w arrant; it contains some exceptions,\n3 As the quoted language suggests, w e assume that N T IA proposes to intercept only ordinary radio\ntransmissions, not transmissions m ade by sophisticated means designed to prevent the transmission\nfrom being intercepted by devices that are generally know n to exist.\n4 Since radio users have no reasonable expectation o f privacy in ordinary radio transmissions,\nintercepting such transmissions w ould not violate the F o u rth A m endm ent.\n\n404\n\n\x0cbut none applies to N T IA .5 As you know, we have previously said that\nm onitoring electrical impulses alone\xe2\x80\x94w ithout translating them to voice\nimpulses\xe2\x80\x94does not violate Title III. T herefore Title III does not pro\xc2\xad\nhibit N T IA from monitoring the electronic impulses o f com m unications\nbetw een radios and land-line telephones. But N T IA may not aurally\nm onitor a transmission if any party to the transmission is using a landline telephone. With this restriction, we believe that N T IA is author\xc2\xad\nized to m onitor radio communications in the categories you identify in\nyour letter, when such m onitoring is reasonably necessary if N T IA is to\nperform its functions under 47 U.S.C. \xc2\xa7 305(a) and 15 U.S.C. \xc2\xa7 272(12)\n& ( 13).\n\nL arry A. H am m ond\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n8\nT he statute partially exem pts \xe2\x80\x9can officer, em ployee, or agent o f the Federal Com m unications\nCommission, in the norm al course o f his em ploym ent and in discharge o f the m onitoring responsibil\xc2\xad\nities exercised by the C om m ission" from these prohibitions. 18 U.S.C. \xc2\xa7 2511 (2)(b). As you know , we\npreviously concluded that this exem ption did not em brace em ployees o f N T fA \xe2\x80\x99s predecessor, O TP.\nW e reasoned that w hen Congress enacted the Om nibus C rim e C ontrol A ct, it was aw are that certain\nagencies had responsibility for governm ent com m unications corresponding to the Federal C om m unica\xc2\xad\ntions C om m ission\xe2\x80\x99s responsibilities for private com m unications; yet C ongress exem pted only the\nCommission from T itle III. W e noted that the case law confirm ed this view. See, e.g.. United States v.\nSugden, 226 F.2d 281, 285 (9th Cir. 1955), a f f d per curiam. 351 U.S. 916 (1956). F o r these same\nreasons, N T IA is not exem pted from the restrictions contained in T itle III. N o other exem ptions are\nrelevant.\n\n405\n\n\x0c'