b'Authority of Agency Officials to Prohibit Employees\nFrom Providing Information to Congress\nConsistent with longstanding Executive Branch positions, Department of Health and Human Services\nofficials have the authority to prohibit officers or employees of the Department from providing\ninformation to Congress.\n\nMay 21, 2004\n\nLETTER OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF HEALTH AND HUMAN SERVICES\nThis letter replies to your request for our response to a memorandum recently\nissued by the Congressional Research Service. See Memorandum for Honorable\nCharles Rangel, House Committee on Ways and Means, from Jack Maskell,\nLegislative Attorney, American Law Division, Congressional Research Service,\nRe: Agency Prohibiting a Federal Officer from Providing Accurate Cost Information to the United States Congress (Apr. 26, 2004) (\xe2\x80\x9cCRS Memo\xe2\x80\x9d). The CRS\nMemo concludes that senior administrators within the Department of Health and\nHuman Services (\xe2\x80\x9cHHS\xe2\x80\x9d) \xe2\x80\x9cdo not have the right to prevent or prohibit their\nofficers or employees, either individually or in association, from presenting\ninformation to the United States Congress, its Members or committees, concerning\nrelevant public policy issues.\xe2\x80\x9d Id. at CRS-1 to CRS-2. We believe, consistent with\nlongstanding Executive Branch legal positions, that HHS officials do indeed have\nsuch authority.\nThe CRS position is based principally on the Lloyd\xe2\x80\x93LaFollette Act, 5 U.S.C.\n\xc2\xa7 7211 (2000), and the appropriations riders currently enacted as sections 618 and\n620 of the Transportation, Treasury, and Independent Agencies Appropriations\nAct, 2004, Pub. L. No. 108-199, 118 Stat. 279, 354, 355. CRS interprets these\nstatutes to establish \xe2\x80\x9cthat a federal employee has the right to communicate with\nand to provide information to the United States Congress, or to a Member or\ncommittee of Congress, and that such right may not be interfered with or impeded.\xe2\x80\x9d CRS Memo at CRS-3. CRS insists that \xe2\x80\x9c[t]here are no countervailing \xe2\x80\x98separations [sic] of powers\xe2\x80\x99 indications generally, nor legitimate \xe2\x80\x98executive privilege\xe2\x80\x99\nclaims specifically, to justify in this matter the withholding from the United States\nCongress [of] relevant public policy information by an executive branch officer in\na federal agency or department lower down in the chain of command from the\nPresident.\xe2\x80\x9d Id. at CRS-2. There are two fundamental errors in the CRS analysis:\n(1) its summary dismissal of separation of powers concerns and (2) its incorrectly\nnarrow view of the scope of executive privilege.1\n\n1\nCRS also discusses whether the Chief Actuary has a statutory responsibility to provide cost\nestimates and other assistance to Congress. See CRS Memo at CRS-6 to CRS-7. That question is\n\n79\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nI.\nThere are serious separation of powers considerations that bear directly on the\nproper interpretation of the statutes relied upon by CRS. The longstanding\nExecutive Branch position is decidedly contrary to the CRS view. The Executive\nBranch position was perhaps most succinctly summarized in the Statement of\nAdministration Policy (\xe2\x80\x9cSAP\xe2\x80\x9d) that the Clinton Administration issued on March 9,\n1998. The SAP stated that the Administration had determined that S. 1668, a bill\npurporting to direct the President to inform employees in the intelligence community that they had a right to disclose classified information to Congress without\nauthorization, was an unconstitutional violation of separation of powers principles\nand, if presented to the President, would be the subject of a veto recommendation\nfrom his senior advisors. The SAP went on to say that:\nThis provision is clearly contrary to the Supreme Court\xe2\x80\x99s explicit\nrecognition of the President\xe2\x80\x99s constitutional authority to protect national security and other privileged information. Congress may not\nvest lower-ranking personnel in the Executive branch with a \xe2\x80\x9cright\xe2\x80\x9d\nto furnish national security or other privileged information to a\nmember of Congress without receiving official authorization to do\nso. By seeking to divest the President of his authority over the disclosure of such information, S. 1668 would unconstitutionally infringe upon the President\xe2\x80\x99s constitutional authority.\nThis position was more fully articulated in Office of Legal Counsel testimony. See\nWhistleblower Protections for Classified Disclosures, 22 Op. O.L.C. 92 (1998)\n(\xe2\x80\x9cMoss Testimony\xe2\x80\x9d).\nThe Clinton Administration SAP and the Moss Testimony relied on longstanding Department of Justice positions developed in connection with the statutory\nprovisions on which CRS relies. Those positions were articulated in a brief the\nSolicitor General filed in the Supreme Court in 1989 in Am. Foreign Serv. Ass\xe2\x80\x99n v.\nGarfinkel, 488 U.S. 923 (1988) (No. 87-2127). That brief was cited in the Moss\nTestimony, 22 Op. O.L.C. at 92 n.1, and summarized in a 1996 OLC opinion,\nAccess to Classified Information, 20 Op. O.L.C. 402, 402\xe2\x80\x9305 (1996). The 1989\nSolicitor General brief and the 1996 OLC opinion explained why, under separation\nof powers principles, Congress may not bypass the procedures the President\nestablishes to authorize the disclosure to Congress of classified and other privileged information by vesting lower-level employees with a right to disclose such\ninformation to Congress without authorization. Accordingly, the Department ad\xe2\x80\x93\n\naddressed in the legal opinion provided to the Office of the HHS Inspector General by HHS\xe2\x80\x99s Office of\nGeneral Counsel on May 12, 2004.\n\n80\n\n\x0cAuthority to Prohibit Employees From Providing Information to Congress\n\nvised that it would not interpret the statutes cited by CRS here as vesting such\na right in Executive Branch employees. Id. at 404\xe2\x80\x9305.\nThe position presented in the Clinton Administration SAP (see reference to\n\xe2\x80\x9cother privileged information\xe2\x80\x9d) and the Moss Testimony, 22 Op. O.L.C. at 101\nn.34, was not limited to classified information, but extended to all deliberative\nprocess or other information protected by executive privilege. Because these\nstatutes may not override the constitutional doctrine of executive privilege, they\nmay not act to prohibit the supervision of the disclosure of any privileged information, be it classified, deliberative process or other privileged material. See\nMemorandum for Peter J. Wallison, Counsel to the President, from Charles J.\nCooper, Assistant Attorney General, Office of Legal Counsel, at 3 n.6 (Sept. 8,\n1986) (\xe2\x80\x9cConsistent with our view that Congress cannot override executive\nprivilege by statutory enactment, we do not believe the \xe2\x80\x98whistleblower\xe2\x80\x99 provisions\nallow an employee to escape sanctions for disclosure of material covered by executive privilege.\xe2\x80\x9d). See also Memorandum for Robert M. McNamara, Jr., General\nCounsel, Central Intelligence Agency, from Todd D. Peterson, Deputy Assistant\nAttorney General, Office of Legal Counsel, Re: Legal Authority to Withhold\nInformation from Congress at 3 (Sept. 9, 1998) (\xe2\x80\x9capplication of [statutory]\nreporting requirements . . . is limited by a constitutional restraint\xe2\x80\x94the executive\nbranch\xe2\x80\x99s authority to control the disclosure of information when necessary to preserve the Executive\xe2\x80\x99s ability to perform its constitutional responsibilities\xe2\x80\x9d).\nThe foregoing discussion does not mean that an agency\xe2\x80\x99s right to supervise its\nemployees\xe2\x80\x99 disclosures to Congress is limited to privileged information. The\ndiscussion establishes only that the CRS interpretation that the \xe2\x80\x9cright of disclosure\xe2\x80\x9d statutes prohibit Executive Branch supervision of employee disclosures\nunconstitutionally limits the ability of the President and his appointees to supervise\nand control the dissemination of privileged government information. However, the\nCRS position also unconstitutionally limits the President\xe2\x80\x99s ability to supervise\nand control the work of subordinate officers and employees of the Executive\nBranch more generally. See Constitutionality of Statute Requiring Executive\nAgency to Report Directly to Congress, 6 Op. O.L.C. 632, 633 (1982) (statutory\n\xe2\x80\x9crequirement that subordinate officials within the Executive Branch submit reports\ndirectly to Congress, without any prior review by their superiors, would greatly\nimpair the right of the President to exercise his constitutionally based right to\ncontrol the Executive Branch\xe2\x80\x9d; provision would be unconstitutional if so construed); Authority of the Special Counsel of the Merit Systems Protection Board to\nLitigate and Submit Legislation to Congress, 8 Op. O.L.C. 30, 31 (1984) (\xe2\x80\x9cCongress may not grant [Special Counsel] the authority to submit legislative proposals\ndirectly to Congress without prior review and clearance by the President, or other\nappropriate authority, without raising serious separation of powers concerns\xe2\x80\x9d).\nThis second, \xe2\x80\x9cunitary Executive\xe2\x80\x9d position is based on the following rationale:\n\n81\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nThe [judicial] decisions and the long practical history concerning the\nright of the President to protect his control over the Executive\nBranch are based on the fundamental principle that the President\xe2\x80\x99s\nrelationship with his subordinates must be free from certain types of\ninterference from the coordinate branches of government in order to\npermit the President effectively to carry out his constitutionally assigned responsibilities. The executive power resides in the President,\nand he is obligated to \xe2\x80\x9ctake care that the laws are faithfully executed.\xe2\x80\x9d In order to fulfill those responsibilities, the President must be\nable to rely upon the faithful service of subordinate officials. To the\nextent that Congress or the courts interfere with the President\xe2\x80\x99s right\nto control or receive effective service from his subordinates within\nthe Executive Branch, those other branches limit the ability of the\nPresident to perform his constitutional function.\n6 Op. O.L.C. at 638-39. Based on this rationale, we do not believe that the statutes\nrelied upon by CRS could constitutionally be applied, as CRS would apply them,\nto the circumstance where a government official instructs a subordinate government employee not to provide an administration\xe2\x80\x99s cost estimates to Congress,\nwhether or not the estimates are viewed as privileged.2\nII.\nCRS\xe2\x80\x99s dismissal of any separation of powers concerns with its reading of the\n\xe2\x80\x9cright of disclosure\xe2\x80\x9d statutes is exacerbated by its much too narrow view of the\nscope of executive privilege. CRS cites In re Sealed Case, 121 F.3d 729 (D.C. Cir.\n1997), for the proposition that \xe2\x80\x9cexecutive privilege does \xe2\x80\x98not extend to staff\noutside the White House in executive branch agencies,\xe2\x80\x99 covering only those with\n\xe2\x80\x98operational proximity\xe2\x80\x99 to the President.\xe2\x80\x9d CRS Memo at CRS-2 n.7. This mischaracterizes Sealed Case, a case addressing the scope of the presidential communications component of executive privilege, as a case defining the overall scope of\nexecutive privilege. To the contrary, the holdings of Sealed Case were limited to\nthe presidential communications privilege, and not only did the court not seek to\ndefine the scope of other components of executive privilege, but it also explicitly\nidentified another component of executive privilege, the deliberative process\nprivilege, which is the component applicable in the HHS actuarial-estimates\ncontext that occasioned the CRS Memo. See Sealed Case, 121 F.3d at 737 (\xe2\x80\x9cThe\nmost frequent form of executive privilege raised in the judicial arena is the\ndeliberative process privilege\xe2\x80\x9d). The court contrasted the two privileges, indicating\nthat \xe2\x80\x9cone applies to decisionmaking of executive officials generally, the other\n2\nAs discussed in the HHS legal opinion, the Chief Actuary is not \xe2\x80\x9cindependent\xe2\x80\x9d for purposes of\npresidential or HHS supervision over the disclosure of HHS records or information to Congress.\n\n82\n\n\x0cAuthority to Prohibit Employees From Providing Information to Congress\n\nspecifically to decisionmaking of the President.\xe2\x80\x9d Id. at 745.3 See also Judicial\nWatch v. Dep\xe2\x80\x99t of Justice, 365 F.3d 1108, 1109 (D.C. Cir. 2004) (referring to the\ndeliberative process and presidential communications privileges as \xe2\x80\x9ctwo privileges\nfalling within [the executive privilege] doctrine\xe2\x80\x9d); id. at 1113\xe2\x80\x9314 (\xe2\x80\x9cthe deliberative\nprocess privilege . . . is a general privilege that applies to all executive branch\nofficials\xe2\x80\x9d).\nThis principle that the deliberative process component of executive privilege\napplies government-wide, and is not limited to presidential decisionmaking, was\nalso recognized implicitly in the leading Supreme Court decision on executive\nprivilege, United States v. Nixon, 418 U.S. 683, 705 (1974) (recognizing \xe2\x80\x9cthe valid\nneed for protection of communications between high Government officials and\nthose who advise and assist them in the performance of their manifold duties\xe2\x80\x9d),\nand it has been the basis for numerous executive privilege assertions in the last 50\nyears concerning intra-agency deliberations, including deliberations involving\nlower-level agency officials. The history of those assertions as of 1991 is chronicled in a Department of Justice letter, which also chronicles Department of Justice\nlegal positions. See Letter to Honorable Howard M. Metzenbaum, United States\nSenate, from W. Lee Rawls, Assistant Attorney General, Office of Legislative\nAffairs (July 1, 1991). Subsequent to that letter, Presidents George Bush, Bill\nClinton and George W. Bush each asserted executive privilege against congressional committees to protect intra-agency deliberative materials prepared for\nsenior officers in executive departments below the President.4\nJACK L. GOLDSMITH III\nAssistant Attorney General\nOffice of Legal Counsel\n\n3\nThe court noted in Sealed Case that executive privilege claims in the congressional context\nhistorically have generally concerned deliberative process privilege rather than presidential communications privilege. See id. at 739 (\xe2\x80\x9cPresidential claims of a right to preserve the confidentiality of information and documents figured more prominently in executive-congressional relations, but these claims\ntoo were most often essentially assertions of the deliberative process privilege.\xe2\x80\x9d).\n4\nAlthough we cannot opine on the privileged status of particular documents without reviewing the\ndocuments themselves, we can say that the estimates an administration develops for its internal use\nin considering policy options should generally be considered privileged because they reflect the\ndeliberative process.\n\n83\n\n\x0c'


b"Application of 18 U.S.C. \xc2\xa7 208 to Service by Federal Officials\non the District of Columbia Downtown Business Improvement\nDistrict Corporation Board of Directors\nA federal official serving on the Board o f D irectors o f the District o f Colum bia D ow ntow n B usiness\nIm p ro v em en t D istn c t C orporation in h is or her official capacity is not a director o f an outside\norgan izatio n w ithin the m eaning of 18 U.S C \xc2\xa7 2 0 8 , and therefore the o fficial\xe2\x80\x99s service is not\nb arred by \xc2\xa7 208.\n\nAugust 7, 1998\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nG e n e r a l S e r v ic e s A d m in is t r a t io n\n\nThis memorandum responds to your request for our opinion regarding the\napplication of 18 U.S.C. \xc2\xa7208 (1994) to the service of federal officials on the\nboard of the District of Columbia Downtown Business Improvement District Cor\xc2\xad\nporation ( \xe2\x80\x9c the Downtown BID Corporation\xe2\x80\x9d ).1 We have concluded that the Dis\xc2\xad\ntrict of Columbia ordinance authorizing the formation of BID Corporations elimi\xc2\xad\nnates the potential for conflict between a federal official\xe2\x80\x99s loyalty to the federal\ngovernment and his or her fiduciary duty to the BID Corporation under District\nof Columbia law. Accordingly, a federal official who serves on the board of a\nBID Corporation in his or her governmental capacity will not be a director of\nan outside organization within the meaning of \xc2\xa7208, and that section\xe2\x80\x99s restrictions\nwill not bar such service.\n\nI. The Downtown BID Corporation\nThe Business Improvement Districts Act of 1996, D.C. Law 11-134 (Michie)\n(codified as amended at D.C. Code Ann. \xc2\xa7\xc2\xa7 1-2271 to 2292 (Michie Supp. 1998))\n( \xe2\x80\x9c the BID Act\xe2\x80\x9d or \xe2\x80\x9c the Act\xe2\x80\x9d ), authorizes the formation of \xe2\x80\x9c business improve\xc2\xad\nment district corporations,\xe2\x80\x9d including a Downtown BID Corporation, to be orga\xc2\xad\nnized under the District of Columbia\xe2\x80\x99s Nonprofit Corporation Act, D.C. Code\nAnn. \xc2\xa7\xc2\xa729-501 to 599.16 (Michie 1996 & Supp. 1998). Id. \xc2\xa7\xc2\xa7 l-2274(c), 1-2273.\nEach owner and commercial tenant o f nonexempt real property within the bound\xc2\xad\naries described in the statute is a member of the Downtown BID Corporation.\nId. \xc2\xa7 1-2273. Once formed, a BID Corporation must apply for registration. If the\napplication is accepted, a \xe2\x80\x9c BID tax\xe2\x80\x9d will be assessed on the owners of nonexempt\nproperty in the BID. Id. \xc2\xa7 1-2285. Owners of exempt real property, including the\nDistrict government and the federal government, may voluntarily make a payment\nto a BID Corporation in lieu of the BID tax. Id. \xc2\xa7 1-2291. The revenues will\n1 Letter for Dawn Johnsen, Acting Assistant A ttorney General, Office of Legal Counsel, from Emily C Hewitt,\nGeneral Counsel, General Services Administration (A ug 26, 1997)\n\n198\n\n\x0cApplication o f 18 U S.C. \xc2\xa7 208 to Service by Federal Officials on the District o f\nColumbia Downtown Business Improvement District Corporation Board o f Directors\n\nfund additional services and improvements to the area within the BID\xe2\x80\x99s bound\xc2\xad\naries. See id. \xc2\xa7\xc2\xa7 1-2272(6), 1-2271(b), l-2274(a)(2); Articles o f Incorporation,\nDistrict of Columbia Department of Consumer and Regulatory Affairs, Business\nRegulation Administration Certificate of Incorporation, art. III(A) (May 20, 1997)\n(\xe2\x80\x9c Articles of Incorporation\xe2\x80\x9d ).\nThe Downtown BID Corporation was incorporated in the District of Columbia\non May 20, 1997. See Articles of Incorporation. It is governed by a board of\ndirectors, which \xe2\x80\x9c shall include owners . . . and commercial tenants, and also may\ninclude residents, community members, and governmental officials', provided, that\nnot less than a majority of all Board members shall represent owners.\xe2\x80\x9d D.C. Code\nAnn. \xc2\xa7 l-2277(a) (emphasis added). Directors do not receive a salary or a fee\nfor attending meetings, but may be reimbursed for actual and reasonable out-ofpocket expenses incurred in the performance of their duties. Bylaws of the Down\xc2\xad\ntown Business Improvement District Corporation, art. IV(E) (\xe2\x80\x9c Bylaws\xe2\x80\x9d ). Because\nthe federal government owns and leases a substantial amount of property in the\nDowntown BID, and because the BID taxes may be passed through to the federal\ngovernment under the terms of certain leases, the General Services Administration\n(\xe2\x80\x9c GSA\xe2\x80\x9d ) would like to have a representative on the board o f the Downtown\nBID Corporation.\nThe Articles of Incorporation list thirty-seven initial directors, including Nelson\nAlcalde, GSA\xe2\x80\x99s Regional Administrator for the National Capital Region. Mr.\nAlcalde is listed by name, with no reference to his federal office. Articles of Incor\xc2\xad\nporation, art. XIV. The initial board was to serve for 120 days, after which the\ndirectors were to be elected by the members of the BID. Bylaws, art. IV(B)(2).\nA director may be removed by a two-thirds vote of the other directors in office,\nbut only for cause. Bylaws, art. IV(B)(6).\nThe participation of the federal government in the Downtown BID Corporation\nis expressly addressed just once in the corporation\xe2\x80\x99s bylaws. That provision sets\nout the formula for determining the number of votes to which each member of\nthe corporation is entitled. The number of votes allocated to each member varies\nbased on several factors, including the use of the property; whether the member\nis an owner, an owner/occupant, or a commercial tenant;1 the square footage of\nthe property; and whether the property is exempt or nonexempt. Bylaws, art.\nVIII(C). Each owner of exempt real property in the BID area, \xe2\x80\x9c including the\nDistrict of Columbia and the federal government, who becomes a member of the\nBID by voluntarily making payments to the BID,\xe2\x80\x9d is to have a vote proportional\nto the ratio o f its voluntary contribution and the BID tax that would be assessed\non a nonexempt property of equal size. Bylaws, art. VIII(C)(8).\n\n199\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 22\n\nII. Analysis\nSection 208 prohibits any officer or employee from participating \xe2\x80\x9c personally\nand substantially\xe2\x80\x9d as a government official in any \xe2\x80\x9c particular matter\xe2\x80\x9d in which\nan \xe2\x80\x98 \xe2\x80\x98organization in which he is serving as officer, director, trustee, general partner\nor employee . . . has a financial interest\xe2\x80\x9d unless he obtains a waiver or satisfies\nan exception outlined in \xc2\xa7 208(b). 18 U.S.C. \xc2\xa7 208(a) (1994). Ordinarily, \xc2\xa7208\ndisqualifies a government official from taking part in decisions affecting the finan\xc2\xad\ncial interests o f a private entity on whose board o f directors he or she sits.\nIn a 1996 opinion, this office concluded that 18 U.S.C. \xc2\xa7 208(a) \xe2\x80\x9c would prevent\na government employee from serving on the board of directors of an outside\norganization in his or her official capacity, in the absence of: (1) statutory\nauthority or a release of fiduciary obligations by the organization that might elimi\xc2\xad\nnate the conflict of interest, or (2) a waiver of the requirements of \xc2\xa7 208(a), pursu\xc2\xad\nant to 18 U.S.C. \xc2\xa7 208(b).\xe2\x80\x9d Service on the Board o f Directors o f Non-Federal\nEntities by Federal Bureau of Investigation Personnel in Their Official Capacities,\n20 Op. O.L.C. 379 (1996) (\xe2\x80\x9c FBI Memorandum\xe2\x80\x9d ). Both a statute and a release\nby the organization (assuming such a release is permissible under state law), we\nreasoned, would overcome the inherent conflict of interest between a government\nemployee\xe2\x80\x99s loyalty to the federal government and his or her fiduciary duty to\nan outside organization under state law. See id.2\nThe BID Act does not fit neatly into either of these previously recognized\ngrounds for relief from the requirements of \xc2\xa7208. The BID Act is a District of\nColumbia ordinance, not a federal statute, and it does not provide a release on\nbehalf of a BID Corporation. Nevertheless, the ordinance defines the duty of a\nfederal official who serves as a BID Corporation director under District of\nColumbia law so as to eliminate the potential for a conflict of interest with the\nUnited States. The BID Act, we believe, provides for service by federal officials\nin their official capacities, and recognizes that federal officials, in cases of conflict,\nmust give their allegiance to their federal employer. It thus provides the equivalent\nof a waiver o f conflicting fiduciary duty. For that reason, we conclude that the\nprohibitions o f \xc2\xa7 208(a) would not bar a federal official from serving on a BID\nCorporation board in his or her official capacity.\n\n2 We have twice concluded that \xc2\xa7208 would apply to service on a private board where no statute provided for\nex officio service and where it appeared that the director would owe the private corporation a fiduciary duty. See\nFBI M emorandum (concluding that \xc2\xa7208 would apply to the service of FBI personnel on non-federal non-profit\nentities m their official capacities); Applicability o f 18 V S C. \xc2\xa7208 to Proposed Appointment o f Government Official\nto the Board o f Connie Lee, 18 Op O .L C 136 (1994) (finding that \xc2\xa7208 would apply to a Treasury official serving\non the board o f a private, for-profit corporation ow ned m part by the federal government).\n\n200\n\n\x0cA pplication o f 18 U.S.C. \xc2\xa7 208 to Service b y F ederal O fficials on the D istrict o f\nC olum bia D owntow n B usiness Im provem ent D istrict Corporation B oard o f D irectors\n\nA.\nWe believe that \xc2\xa7 1\xe2\x80\x942277 of the BID Act authorizes federal officials to serve\nas directors of a BID Corporation in an official capacity. Section l-2277(a) of\nthe BID Act provides that\nBoard members shall include owners, or principals, agents, partners,\nmanagers, trustees, stockholders, officers, or directors of owners,\nand commercial tenants, and also may include residents, community\nmembers, and government officials; provided, that not less than a\nmajority of all Board members shall represent owners.\nId. Given the pervasive presence of the federal government in the District of\nColumbia, it is reasonable to construe the term \xe2\x80\x9c government official\xe2\x80\x9d in a District\nof Columbia ordinance as including officials of the United States. This construc\xc2\xad\ntion is consistent with the treatment of the District of Columbia and the federal\ngovernment in the portion of the Downtown BID Corporation bylaws governing\nthe voting rights of owners of exempt property. See Bylaws, art. VIII(C)(8) (an\nowner of exempt property, \xe2\x80\x9c including the District of Columbia and the federal\ngovernment, who becomes a member of the BID by voluntarily making payments\nto the BID,\xe2\x80\x9d is entitled to proportional vote).\nAlthough the BID Act does not address whether a federal official who serves\nas a director does so in a personal or official capacity, the better interpretation\nis that \xc2\xa7 l-2277(a) authorizes service in an official capacity. Statutes must be inter\xc2\xad\npreted, if possible, to give each word some operative effect. Walters v. Metropoli\xc2\xad\ntan Educ. Enters., Inc., 519 U.S. 202, 209 (1997); United States v. Menasche,\n348 U.S. 528, 538-39 (1955). If the District of Columbia Council (\xe2\x80\x9c Council\xe2\x80\x9d )\nintended to allow government officials merely to serve in a personal capacity,\nit would not have been necessary, as a general matter, to include the term\n\xe2\x80\x9c government official\xe2\x80\x9d in the list of persons eligible for membership on the board.\nIn most instances, a government official serving as a director in his or her personal\ncapacity will be eligible as a member of one of the other categories enumerated\nin \xc2\xa7 l-2277(a), such as a \xe2\x80\x9c community member,\xe2\x80\x9d a \xe2\x80\x9c resident,\xe2\x80\x9d or a \xe2\x80\x9c commercial\ntenant.\xe2\x80\x9d Construing the term \xe2\x80\x9c government official\xe2\x80\x9d to authorize service in an\nofficial capacity gives that term a meaning not covered by those other categories.\nWe therefore interpret \xc2\xa7 1-2277 as authorizing a federal official to serve on the\nboard of a BID Corporation in his or her official capacity.\nB.\nThe BID Act does not expressly address the duty of a federal official serving\non the board in the event that the interests of the BID Corporation conflict with\n201\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 22\n\nthose of the federal government. To determine the scope of that duty, we must\nconsider the purposes of the Act and attempt to construe the statute in a manner\nthat effectuates the intent of the Council.\nWhen interpreting a statute, \xe2\x80\x9c [w]e may presume \xe2\x80\x98that our elected representa\xc2\xad\ntives, like other citizens, know the law.\xe2\x80\x99 \xe2\x80\x9d Director, Office o f Workers\xe2\x80\x99 Compensa\xc2\xad\ntion Programs v. Perini North River Assocs., 459 U.S. 297, 319 (1983) (quoting\nCannon v. University o f Chicago, 441 U.S. 677, 696-97 (1979)); c f Smith v.\nUnited States, 597 A.2d 377, 382 n .ll (D.C. 1991) (presumption that Congress\nknows statutory construction given to prior statutory provisions when it incor\xc2\xad\nporates them into later legislation also applies to D.C. Council). The District of\nColumbia\xe2\x80\x99s authorization for a federal official to serve in an official capacity\noccurred against two background principles of law that are relevant to our analysis.\nThe first is that a federal government employee serving in an official capacity\nowes a duty of loyalty to the United States. See, e.g., 18 U.S.C. \xc2\xa7\xc2\xa7201-209 (1994\n& Supp. II 1996); Crocker v. United States, 240 U.S. 74 (1916) (allowing govern\xc2\xad\nment to rescind contract where contractor would pay employee a portion of con\xc2\xad\ntract amount); United States v. Carter, 217 U.S. 286 (1910) (permitting govern\xc2\xad\nment to recover $500,000 received by Army officer after using his influence to\naward a contract to a paying party). The District of Columbia has no authority\nto modify that duty. The second is that a director of a District of Columbia mem\xc2\xad\nbership corporation owes a fiduciary duty to the corporation and its members,\nWisconsin Ave. Assocs. v. 2720 Wisconsin Ave. Cooperative Assoc., 441 A.2d 956,\n962-63 (D.C.), cert, denied, 459 U.S. 827 (1982), but the District of Columbia\nhas the authority to define and thus to modify the obligations of a director to\na District of Columbia corporation under District of Columbia law. See District\nof Columbia Self-Government and Governmental Reorganization Act, Pub. L. No.\n93-198, \xc2\xa7\xc2\xa7 302, 404(a), 87 Stat. 774, 784, 787 (1973) (vesting legislative power\nof the District in the Council).3\nConsidering these two background principles together, we conclude that when\nthe Council authorized federal officials to serve as directors in their official capac\xc2\xad\nities, it must be deemed to have anticipated that, in the event of a conflict between\nthe interests o f the BID Corporation and the interests of the United States, those\nofficials would serve the interests of the United States. Because the Council has\nthe authority to define the duty o f a director under District of Columbia law,\nits authorization of official service by federal government officials is best read\nas implying that serving the interests of the United States in that situation would\nnot violate the director\xe2\x80\x99s obligations to the BID Corporation under District of\n3The D istnct o f Columbia Financial Responsibility and Management Assistance Act of 1995, Pub L No 1048, 109 Stat 97, did not remove the legislative power from the Council, but did place significant limitations on\nthe C ouncil\xe2\x80\x99s authonty. In any control year, the Council must submit each act passed by the Council and signed\nby the M ayor to the Control Board for review to determine if the act is consistent with the approved financial\nplan and budget Id. \xc2\xa7 203(a), 109 Stat. at 116 if, within seven days, the Control Board concludes that the act\nis not consistent with those requirements, the act will not take effect Id. \xc2\xa7 203(a)(5), 109 Stat. at 117.\n\n202\n\n\x0cApplication o f 18 U.S.C. \xc2\xa7208 to Service by Federal Officials on the District o f\nColumbia Downtown Business Improvement District Corporation Board o f Directors\n\nColumbia law. Accordingly, in the event of any conflict, a federal official serving\nas a BID Corporation director in his or her governmental capacity is authorized\nby the BID Act to serve the interests of the United States without violating his\nor her duty to the BID Corporation under District of Columbia law. For that reason, \xc2\xa7 208(a) would not bar the service of a federal official in his or her official\ncapacity on the board of the Downtown BID Corporation.\n\nIII. Conclusion\nSection 1-2277 of the BID Act authorizes federal officials to serve as BID\nCorporation directors in an official capacity. In so doing, that section impliedly\nauthorizes a federal official who is serving as such a director to place the interests\nof the United States above those of the BID Corporation in the event of a conflict\nbetween the two. Therefore, the Act is the equivalent of a waiver of conflicting\nfiduciary duty. Thus, a GSA official serving on the board of the Downtown BID\nCorporation in his or her official capacity would not be a \xe2\x80\x9c director\xe2\x80\x9d within the\nmeaning of \xc2\xa7 208(a), and that section\xe2\x80\x99s proscriptions would not bar the official\xe2\x80\x99s\nservice.\nBETH NOLAN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n203\n\n\xe2\x80\xa2\n\n\x0c"


b'Altering Puerto Rico\xe2\x80\x99s Relationship with\nthe United States Through Referendum\nLegislation conditioning a change in Puerto Rico\xe2\x80\x99s political relationship with the United\nStates on the results of one or more referenda by the Puerto Rican electorate, without\nsubsequent congressional action, would be constitutional, insofar as the referendum or\nreferenda presented voters in the territory with a limited set of options specified in\nadvance by Congress.\nMarch 7, 2012\n\nMEMORANDUM OPINION FOR THE\nASSOCIATE ATTORNEY GENERAL\nIn your role as co-chair of the President\xe2\x80\x99s Task Force on Puerto Rico\xe2\x80\x99s\nStatus, you asked us to consider whether \xe2\x80\x9cthe President [may] support and\nCongress enact legislation that triggers implementation of whichever\nstatus outcome the citizens of Puerto Rico choose with no further action\nby Congress (with the understanding that such legislation may not be\nbinding on future Congresses).\xe2\x80\x9d 1 This memorandum memorializes advice\nwe provided to you prior to the release of the Report by the President\xe2\x80\x99s\nTask Force in March 2011. 2 For the reasons given below, we concluded\nthat legislation conditioning a change in Puerto Rico\xe2\x80\x99s political relation-\n\nE-mail for Jonathan Cedarbaum, Deputy Assistant Attorney General, Office of Legal\nCounsel, from Mala Adiga on behalf of Thomas J. Perrelli, Associate Attorney General,\nRe: Puerto Rico Questions (June 14, 2010).\n2 Report by the President\xe2\x80\x99s Task Force on Puerto Rico\xe2\x80\x99s Status (Mar. 2011), http://\nwww.whitehouse.gov/sites/default/files/uploads/Puerto_Rico_Task_Force_Report.pdf\n(\xe2\x80\x9c2011 Task Force Report\xe2\x80\x9d). President Clinton established the President\xe2\x80\x99s Task Force on\nPuerto Rico\xe2\x80\x99s Status by executive order on December 23, 2000. See Exec. Order No.\n13183, 3 C.F.R. 340 (2001), reprinted as amended in 48 U.S.C. \xc2\xa7 731 note (2006 & Supp.\nIV 2010). As amended by subsequent executive orders, this order provides that the Task\nForce is \xe2\x80\x9ccomposed of designees of each member of the President\xe2\x80\x99s Cabinet and the\nDeputy Assistant to the President and Director for Intergovernmental Affairs,\xe2\x80\x9d and is cochaired by the Attorney General\xe2\x80\x99s designee and the Deputy Assistant to the President and\nDirector for Intergovernmental Affairs. Id. \xc2\xa7 2; see Exec. Order No. 13517, 74 Fed. Reg.\n57,239 (Oct. 30, 2009); Exec. Order No. 13319, 3 C.F.R. 267 (2004); Exec. Order No.\n13209, 3 C.F.R. 765 (2002). The Task Force is responsible for, among other things, \xe2\x80\x9censur[ing] official attention to and facilitat[ing] action on matters related to proposals for\nPuerto Rico\xe2\x80\x99s status and provid[ing] advice and recommendations on such matters to the\nPresident and the Congress.\xe2\x80\x9d Exec. Order No. 13183, \xc2\xa7 3.\n1\n\n93\n\n\x0c36 Op. O.L.C. 93 (2012)\n\nship with the United States on the results of one or more referenda by the\nPuerto Rican electorate, without subsequent congressional action, would\nbe constitutional, insofar as the referendum or referenda presented voters\nin the territory with a limited set of options specified in advance by Congress.\nCongress generally may condition the legal effect of legislation on the\nexistence of future contingencies, including whether an affected constituency approves the legislation. Neither of the clauses of the Constitution\nrelevant here\xe2\x80\x94the Territory Clause or the State Admission Clause\xe2\x80\x94\nrestricts Congress\xe2\x80\x99s authority to enact legislation that would condition a\nchange in a territory\xe2\x80\x99s political relationship with the United States on the\noutcome of a territorial referendum. Moreover, an extensive and longstanding congressional practice of granting statehood or independence to\nterritories upon approval by the territory\xe2\x80\x99s electorate and without the need\nfor subsequent congressional action confirms the constitutionality of this\nmethod for changing a territory\xe2\x80\x99s status. This Office and various Department officials repeatedly have endorsed this view over the years, including with respect to Puerto Rico.\nWe note at the outset that there are limitations on Congress\xe2\x80\x99s authority\nto provide for certain outcomes. The Executive Branch, for example, has\nlong taken the position that Congress may not constitutionally provide for\nthe so-called \xe2\x80\x9cenhanced commonwealth\xe2\x80\x9d status, to the extent that such\nstatus would entail requiring the consent of the Puerto Rican people\nbefore Congress could make any subsequent changes in Puerto Rico\xe2\x80\x99s\npolitical relationship with the United States. 3 In this memorandum, we\naddress only the constitutionality of a particular process by which a\nchange in Puerto Rico\xe2\x80\x99s relationship with the United States might be\nbrought about: a process that would involve the passage of federal legislation that would condition its own effects on the outcome of a vote by\nPuerto Rico\xe2\x80\x99s electorate and would not require any subsequent action by\nCongress.\nI.\nThe Supreme Court has described Puerto Rico as having \xe2\x80\x9ca relationship\nto the United States \xe2\x80\x98that has no parallel in our history.\xe2\x80\x99\xe2\x80\x9d Califano v.\n3\n\nSee 2011 Task Force Report, supra note 2, at 26.\n\n94\n\n\x0cAltering Puerto Rico\xe2\x80\x99s Relationship with the United States Through Referendum\n\nTorres, 435 U.S. 1, 3 n.4 (1978) (per curiam) (quoting Examining Bd. of\nEng\xe2\x80\x99rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 596\n(1976)). The United States acquired Puerto Rico from Spain in 1898,\npursuant to the Treaty of Paris that concluded the Spanish-American War.\nOver time, in successive organic statutes that established local governmental institutions for the territory, Congress gave Puerto Rico increasing\ndegrees of autonomy. Puerto Rico acquired its current status as a selfgoverning \xe2\x80\x9ccommonwealth\xe2\x80\x9d through federal statutes passed in 1950 and\n1952. The former authorized the Puerto Rican people to adopt a constitution for Puerto Rico\xe2\x80\x99s local self-government, and the latter approved the\nproposed constitution (subject to the inclusion of certain amendments).\nSee Pub. L. No. 82-447, 66 Stat. 327 (1952); Pub. L. No. 81-600, 64 Stat.\n319 (1950) (codified at 48 U.S.C. \xc2\xa7\xc2\xa7 731b\xe2\x80\x93731e (2006)). 4\nToday, Puerto Rico has extensive powers of self-government. In \xe2\x80\x9cmany\nrespects,\xe2\x80\x9d its government \xe2\x80\x9cresembles that of a state,\xe2\x80\x9d in that it consists of\n\xe2\x80\x9can elected governor and legislature, and its legislature has powers akin to\nthose exercised by the states.\xe2\x80\x9d Trailer Marine Transp. Corp. v. Rivera\nVazquez, 977 F.2d 1, 7 (1st Cir. 1992); see also Examining Bd., 426 U.S.\nat 594 (Puerto Rico possesses \xe2\x80\x9cthe degree of autonomy and independence\nnormally associated with States of the Union\xe2\x80\x9d). Indeed, for many federal\nadministrative purposes, Puerto Rico is treated as the functional equivalent of a State. In 1992, President George H.W. Bush issued a directive\nthat remains in force today, requiring:\nall Federal departments, agencies, and officials, to the extent consistent with the Constitution and the laws of the United States,\nhenceforward to treat Puerto Rico administratively as if it were a\nState, except insofar as doing so with respect to an existing Federal\nprogram or activity would increase or decrease Federal receipts or\nexpenditures, or would seriously disrupt the operation of such program or activity.\n\n4 See also Treaty of Paris, U.S.-Spain, Dec. 10, 1898, 30 Stat. 1754; Foraker Act, ch.\n191, 31 Stat. 77 (1900); Jones Act (Puerto Rico), ch. 145, 39 Stat. 951 (1917); see generally Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 671\xe2\x80\x9372 (1974) (discussing history of relations between Puerto Rico and the United States); United States v.\nSanchez, 992 F.2d 1143, 1151 (11th Cir. 1993) (same); Trailer Marine Transp. Corp. v.\nRivera Vazquez, 977 F.2d 1, 6\xe2\x80\x937 (1st Cir. 1992) (same).\n\n95\n\n\x0c36 Op. O.L.C. 93 (2012)\n\nMemorandum for the Heads of Executive Departments and Agencies, 57\nFed. Reg. 57,093 (Nov. 30, 1992), reprinted in 48 U.S.C. \xc2\xa7 734 note\n(2006).\nFor constitutional purposes, Puerto Rico nonetheless remains a territory\nof the United States and is therefore subject to the Territory Clause and\nthe State Admission Clause\xe2\x80\x94constitutional provisions that give Congress\nthe general authority to govern territories and the specific authority to\nadmit new territories as states, respectively. 5 See U.S. Const. art. IV, \xc2\xa7 3.\nThe question thus becomes whether either of these two provisions, or any\nother constitutional requirement, precludes Congress from changing\nPuerto Rico\xe2\x80\x99s relationship with the United States through legislation that\nwould condition the effect of that legislation on the results of a vote by\nthe Puerto Rican electorate.\nAs a general matter, Congress may enact legislation conditioning the\neffectiveness of laws or regulations on approval by affected parties, 6 and\nwe conclude that neither the Territory Clause nor the State Admission\nClause prevents Congress from enacting such legislation to change Puerto\n5 See, e.g., Examining Bd., 426 U.S. at 586 (discussing Congress\xe2\x80\x99s \xe2\x80\x9cestablishment of\nthe civil government in Puerto Rico in the exercise of its territorial power under Const.,\nArt. IV, \xc2\xa7 3, cl. 2\xe2\x80\x9d); Harris v. Rosario, 446 U.S. 651, 651\xe2\x80\x9352 (1980) (per curiam) (describing Congress as \xe2\x80\x9cempowered under the Territory Clause of the Constitution\xe2\x80\x9d to \xe2\x80\x9ctreat\nPuerto Rico differently from States so long as there is a rational basis for its actions\xe2\x80\x9d);\nIgartua-de la Rosa v. United States, 417 F.3d 145, 147 (1st Cir. 2005) (en banc) (holding\nthat Puerto Rico \xe2\x80\x9cis not a \xe2\x80\x98state\xe2\x80\x99 within the meaning of the Constitution\xe2\x80\x9d).\n6 See, e.g., Currin v. Wallace, 306 U.S. 1, 15\xe2\x80\x9316 (1939) (upholding law permitting\ntobacco regulations to take effect only if approved by two-thirds of growers in a prescribed referendum); United States v. Rock Royal Coop., Inc., 307 U.S. 533, 577\xe2\x80\x9378 &\nn.64 (1939) (upholding similar referendum provision based on Currin); Wickard v.\nFilburn, 317 U.S. 111, 117\xe2\x80\x9318 (1942) (rejecting challenge to referendum among wheat\ngrowers on quotas proposed by Secretary of Agriculture); Lac Courte Oreilles Band of\nLake Superior Chippewa Indians of Wisc. v. United States, 367 F.3d 650, 653, 659\xe2\x80\x9360\n(7th Cir. 2004) (upholding requirement of state governor\xe2\x80\x99s concurrence in federal official\xe2\x80\x99s determination because \xe2\x80\x9c[t]here is no \xe2\x80\x98delegation of legislative authority\xe2\x80\x99 to [an]\nactor whose assent is a precondition to the execution of the law\xe2\x80\x9d (quoting Currin, 306\nU.S. at 15)); Confederated Tribes of Siletz Indians of Ore. v. United States, 110 F.3d 688,\n695 (9th Cir. 1997) (\xe2\x80\x9c[b]y requiring local approval, Congress is exercising its legislative\nauthority by providing what conditions must be met before a statutory provision goes into\neffect\xe2\x80\x9d); Mutual Consent Provisions in the Proposed Guam Commonwealth Act, __ Op.\nO.L.C. Supp. __, *14 n.13 (July 28, 1994) (concluding, based on Currin, that \xe2\x80\x9capproval of\nfederal legislation by\xe2\x80\x9d the government of a territory (in that case Guam) may be \xe2\x80\x9ca\nlegitimate condition for making that legislation applicable\xe2\x80\x9d).\n\n96\n\n\x0cAltering Puerto Rico\xe2\x80\x99s Relationship with the United States Through Referendum\n\nRico\xe2\x80\x99s status. First, under the Territory Clause, Congress has \xe2\x80\x9c[p]ower to\ndispose of and make all needful Rules and Regulations respecting the\nTerritory or other Property belonging to the United States.\xe2\x80\x9d U.S. Const.\nart. IV, \xc2\xa7 3, cl. 2. The Supreme Court has characterized this clause as\n\xe2\x80\x9cgrant[ing] Congress and the President the power to acquire, dispose of,\nand govern territory.\xe2\x80\x9d Boumediene v. Bush, 553 U.S. 723, 765 (2008). It\nhas long been established that Congress\xe2\x80\x99s authority to govern and dispose\nof territories includes the authority to provide for changes in territories\xe2\x80\x99\ndegree of self-government, 7 and to provide for even more fundamental\nchanges in their political relationship with the United States, including by\ngranting them independence. 8 Nothing in the text, structure, or purpose of\nthe Territory Clause limits Congress\xe2\x80\x99s authority to provide for a change in\na territory\xe2\x80\x99s governmental structure through the referendum process under\nconsideration here, nor are we aware of any judicial decisions articulating\nsuch limits. In addition, nothing in the Clause would prevent Congress\nfrom making any change in Puerto Rico\xe2\x80\x99s status effective upon a favorable vote by the territory\xe2\x80\x99s electorate and without need for subsequent\ncongressional action.\nSecond, though the State Admission Clause places certain express limitations on Congress\xe2\x80\x99s authority to create new states, these limitations\nwould not apply to the admission of Puerto Rico. The Clause provides:\nNew States may be admitted by the Congress into this Union; but no\nnew State shall be formed or erected within the Jurisdiction of any\nother State; nor any State be formed by the Junction of two or more\nStates, or Parts of States, without the Consent of the Legislatures of\nthe States concerned as well as of the Congress.\nU.S. Const. art. IV, \xc2\xa7 3, cl. 1. The State of Puerto Rico would neither be\nformed within the jurisdiction of any other state nor formed by the junc7 See, e.g., United States v. Lara, 541 U.S. 193, 203\xe2\x80\x9304 (2004) (noting that \xe2\x80\x9c[t]he political branches\xe2\x80\x9d historically have made \xe2\x80\x9cradical adjustments\xe2\x80\x9d in the \xe2\x80\x9cautonomous status\nof . . . dependent entities,\xe2\x80\x9d including Puerto Rico); Calero-Toledo, 416 U.S. at 671\n(describing series of congressional enactments under which Puerto Rico progressed from\ninitial \xe2\x80\x9cmilitary control\xe2\x80\x9d to appointed government to substantial self-governance); Clinton\nv. Englebrecht, 80 U.S. (13 Wall.) 434, 441\xe2\x80\x9345 (1871) (discussing enactments organizing\ngovernments for the United States\xe2\x80\x99 first territories).\n8 See, e.g., Barber v. Gonzales, 347 U.S. 637, 638\xe2\x80\x9339 & n.1 (1954) (discussing legislation that resulted in the independence of the Philippines).\n\n97\n\n\x0c36 Op. O.L.C. 93 (2012)\n\ntion of parts of two or more states. What is more, the Clause includes no\nexpress limitation on Congress\xe2\x80\x99s authority to condition the admission of a\nstate on an affirmative vote of a territory\xe2\x80\x99s electorate without subsequent\ncongressional action. In fact, as described in detail below, Congress has\noften admitted states through such means.\nII.\nA.\nCongress has frequently admitted states to the Union through contingent legislation. While the conditions Congress has imposed have varied,\ncontingent statutes have often made admission of a territory effective\nupon the issuance of a presidential proclamation certifying that the statutory conditions have been fulfilled, without any subsequent action by\nCongress having been required. Congress has identified a vote by the\nterritorial electorate in favor of statehood or in support of a state constitution (or constitutional amendment) as the triggering event for admission\nin many instances.\nThe two newest states\xe2\x80\x94Alaska and Hawaii\xe2\x80\x94were both admitted under statutes that conditioned admission on a referendum of the territorial\nelectorate. In the case of Alaska, the statehood statute directed the governor of the territory to submit three propositions to the territory\xe2\x80\x99s voters.\nAct of July 7, 1958, Pub. L. No. 85-508, \xc2\xa7 8(b), 72 Stat. 339, 343\xe2\x80\x9344.\nOne of these propositions asked voters: \xe2\x80\x9cShall Alaska immediately be\nadmitted into the Union as a State?\xe2\x80\x9d Id., 72 Stat. at 344. The other two\nsought Alaska voters\xe2\x80\x99 consent to specific territorial boundaries and\ncertain other conditions of Alaska\xe2\x80\x99s admission under the Act. Id. The\nAct required the governor to \xe2\x80\x9ccertify the results of said submission, as\n. . . ascertained [by the Secretary of Alaska through a specified process], to the President of the United States.\xe2\x80\x9d Id.\nThe statehood statute ultimately provided that, \xe2\x80\x9c[i]n the event any one\nof the [specified] propositions is not adopted at [the designated] election\nby a majority of the legal votes cast on said submission, the provisions of\nthis Act shall thereupon cease to be effective,\xe2\x80\x9d meaning that Alaska would\nnot become a state under the statute. Id. If the propositions were approved, however, the Act authorized admission of Alaska upon presidential proclamation, without further action by Congress. The Act provided:\n98\n\n\x0cAltering Puerto Rico\xe2\x80\x99s Relationship with the United States Through Referendum\n\nIf the President shall find that the propositions set forth in [the Act]\nhave been duly adopted by the people of Alaska, the President, upon\ncertification of the returns of the election of the [congressional Representative and Senators] required to be elected [under the Act], shall\nthereupon issue his proclamation announcing the results of said election as so ascertained. Upon the issuance of said proclamation by the\nPresident, the State of Alaska shall be deemed admitted into the Union as provided in section 1 of this Act.\nId. \xc2\xa7 8(c), 72 Stat. at 344. Section 1 of the Act in turn provided \xe2\x80\x9c[t]hat,\nsubject to the provisions of this Act, and upon issuance of the proclamation required by section 8(c) of this Act, the State of Alaska is hereby\ndeclared to be a State of the United States of America[] [and] is declared\nadmitted into the Union on an equal footing with the other States in all\nrespects whatever.\xe2\x80\x9d Id. \xc2\xa7 1, 72 Stat. at 339.\nPresident Eisenhower signed the Alaska Statehood bill on July 7, 1958,\nand said he was \xe2\x80\x9cpleased with the action of Congress admitting Alaska.\xe2\x80\x9d\nStatement by the President Upon Signing Alaska Statehood Bill (July 7,\n1958), 1 Pub. Papers of Dwight D. Eisenhower 525 (1958). On January 3,\n1959, after Alaska voters had considered the propositions contemplated\nby the statute, the President issued the required proclamation \xe2\x80\x9cfind[ing]\nand announc[ing] that the people of Alaska have duly adopted the propositions required to be submitted to them by the act of July 7, 1958 and\nhave duly elected the officers required to be elected by that act.\xe2\x80\x9d Proclamation No. 3269, 3 C.F.R. 16 (Supp. 1959), reprinted in 48 U.S.C. ch. 2\nnote following table of contents (2006). President Eisenhower thus \xe2\x80\x9cdeclare[d] and proclaim[ed] that the procedural requirements imposed by the\nCongress on the State of Alaska to entitle that State to admission into the\nUnion have been complied with in all respects and that admission of the\nState of Alaska into the Union on an equal footing with the other States of\nthe Union is now accomplished.\xe2\x80\x9d Id.\nCongress enacted Hawaii\xe2\x80\x99s statehood statute several months after Alaska\xe2\x80\x99s admission and provided for a virtually identical admissions process.\nCongress required Hawaii\xe2\x80\x99s voters to answer three questions similar to\nthose specified in the Alaska referendum, including \xe2\x80\x9cShall Hawaii immediately be admitted into the Union as a State?\xe2\x80\x9d Pub. L. No. 86-3, \xc2\xa7 7(b),\n73 Stat. 4, 7 (1959). Congress also required the election of a congressional\nRepresentative and Senators for Hawaii; directed the President to issue a\n99\n\n\x0c36 Op. O.L.C. 93 (2012)\n\nproclamation certifying when these conditions were satisfied; and provided that \xe2\x80\x9c[u]pon the issuance of said proclamation by the President, the\nState of Hawaii shall be deemed admitted into the Union as provided in\nsection 1 of this Act.\xe2\x80\x9d Id. The Act, like the Alaska statute, established\nthat, \xe2\x80\x9csubject to the provisions of this Act, and upon issuance of the\nproclamation required by [the Act], the State of Hawaii is hereby declared\nto be a State of the United States of America[] [and] is declared to be\nadmitted into the Union on an equal footing with the other States in all\nrespects whatever.\xe2\x80\x9d Id. \xc2\xa7\xc2\xa7 1, 7, 73 Stat. at 4, 7\xe2\x80\x938. Upon signing the Hawaii statehood bill, President Eisenhower observed that \xe2\x80\x9c[i]t has given me\ngreat satisfaction to sign the Act providing for the admission of Hawaii\ninto the Union\xe2\x80\x9d and noted that, \xe2\x80\x9c[u]nder this legislation, the citizens of\nHawaii will soon decide whether their Islands shall become our fiftieth\nState.\xe2\x80\x9d Statement by the President Upon Signing the Hawaii Statehood\nBill (Mar. 18, 1959), 1 Pub. Papers of Dwight D. Eisenhower 286 (1959).\nAfter the territorial referendum, the President issued the required proclamation certifying Hawaii\xe2\x80\x99s admission to the union on August 21, 1959.\nProclamation No. 3309, 3 C.F.R. 60 (Supp. 1959), reprinted in 48 U.S.C.\nch. 3 note following table of contents (2006).\nAlthough Alaska and Hawaii are the only states whose admission was\nconditioned on referenda that expressly addressed statehood, Congress\nhas admitted some ten other states pursuant to statutes that granted statehood once territorial voters had approved certain measures, without further congressional action. Congress made the admission of Arizona and\nWest Virginia effective upon popular ratification of certain amendments\nto the proposed state constitutions. 9 Similarly, Congress provided for the\nadmission of Oklahoma, Utah, Washington, Montana, South Dakota,\nNorth Dakota, Colorado, and Nevada effective upon presidential proclamation, without further congressional action, once territorial voters had\napproved state constitutions meeting specified criteria. 10\n9 See S.J. Res. 57, \xc2\xa7 7, 37 Stat. 39, 42 (Aug. 21, 1911) (Arizona); Proclamation of Feb.\n14, 1912, 37 Stat. 1728 (noting approval of amendment); Act of Dec. 31, 1862, ch. 6, \xc2\xa7 2,\n12 Stat. 633, 634 (West Virginia); Proclamation of Apr. 20, 1863, 6 Compilation of the\nMessages and Papers of the Presidents 167 (James D. Richardson ed., 1897) (\xe2\x80\x9cMessages\n& Papers\xe2\x80\x9d) (noting compliance with condition).\n10 See Pub. L. No. 59-234, \xc2\xa7 4, 34 Stat. at 271 (Oklahoma); Proclamation of Nov. 16,\n1907, 35 Stat. 2160 (Oklahoma); Act of July 16, 1894, ch. 138, \xc2\xa7 4, 28 Stat. 107, 108\xe2\x80\x9309\n(Utah); Proclamation of Jan. 4, 1896, 29 Stat. 876 (Utah); Act of Feb. 22, 1889, ch. 180,\n\n100\n\n\x0cAltering Puerto Rico\xe2\x80\x99s Relationship with the United States Through Referendum\n\nCongress also has passed contingent admission legislation for territories that were ultimately admitted under different, subsequent legislation,\nin some cases because voters in the territory rejected the conditions imposed by Congress in the original contingent legislation. See, e.g., Pub. L.\nNo. 59-234, \xc2\xa7\xc2\xa7 24, 26, 34 Stat. 267, 278, 280\xe2\x80\x9381 (1906) (providing for\nadmission of State of Arizona following voter approval of constitution,\nbut only if voters in the territories of both Arizona and New Mexico\nanswered in the affirmative, \xe2\x80\x9cShall Arizona and New Mexico be united to\nform one state?\xe2\x80\x9d) 11; Act of Apr. 19, 1864, ch. 59, \xc2\xa7 5, 13 Stat. 47, 48\xe2\x80\x9349\n(providing for admission of Nebraska upon voter approval of state constitution) 12; Act of May 4, 1858, ch. 26, 11 Stat. 269, 270 (providing for\nadmission of Kansas upon voter acceptance of specified propositions) 13;\nAct of Mar. 3, 1847, ch. 53, \xc2\xa7 4, 9 Stat. 178, 179 (providing for admission\nof Wisconsin upon voter approval of state constitution) 14; Act of Mar. 3,\n\n\xc2\xa7 8, 25 Stat. 676, 678\xe2\x80\x9379 (North Dakota, South Dakota, Montana, and Washington);\nProclamation of Nov. 11, 1889, 26 Stat. 1552 (Washington); Proclamation of Nov. 8,\n1889, 26 Stat. 1551 (Montana); Proclamation of Nov. 2, 1889, 26 Stat. 1549 (South\nDakota); Proclamation of Nov. 2, 1889, 26 Stat. 1548 (North Dakota); Act of Mar. 3,\n1875, ch. 139, \xc2\xa7 5, 18 Stat. 474, 475, as amended by Act of Mar. 3, 1876, ch. 17,\n19 Stat. 5 (Colorado); Proclamation of Aug. 1, 1876, 9 Messages & Papers n.s. 4346\n(1897) (Colorado); Act of Mar. 21, 1864, ch. 36, \xc2\xa7 5, 13 Stat. 30, 31\xe2\x80\x9332 (Nevada);\nProclamation of Oct. 31, 1864, 13 Stat. 749 (Nevada). New Mexico\xe2\x80\x99s admission became\neffective once the territory had held a referendum on specified propositions, although\nCongress did not require that the vote result in any particular outcome. See S.J. Res. 57,\n\xc2\xa7\xc2\xa7 3\xe2\x80\x936, 37 Stat. 39, 39\xe2\x80\x9342 (Aug. 21, 1911) (requiring \xe2\x80\x9cas a condition precedent\xe2\x80\x9d to\nadmission that the New Mexico electorate vote on specified amendments to the New\nMexico constitution); Proclamation of Jan. 6, 1912, 37 Stat. 1723 (finding that vote was\nheld and thus deeming New Mexico admitted to Union); Robert W. Larson, New Mexico\xe2\x80\x99s\nQuest for Statehood: 1846\xe2\x80\x931912 296 (1968).\n11 Arizona voters rejected this proposition. See John D. Leshy, The Making of the Arizona Constitution, 20 Ariz. St. L.J. 1, 15\xe2\x80\x9316 (1988).\n12 A constitutional convention convened pursuant to this statute failed to approve a\nconstitution. 2 The Uniting States: The Story of Statehood for the Fifty United States 739\xe2\x80\x93\n40 (Benjamin F. Shearer ed., 2004). Nebraska was later admitted under a different statute.\nSee infra note 16.\n13 Kansas voters rejected the pro-slavery constitution on which this admission statute\nwas based. Kansas was later admitted by statute with a different state constitution. See\nAct of Jan. 29, 1861, ch. 20, 12 Stat. 126; 1 Uniting States, supra note 12, at 450\xe2\x80\x9351.\n14 Wisconsin voters rejected a constitution proposed pursuant to this Act, but Congress\nlater admitted Wisconsin by statute following the ratification of a different state constitu-\n\n101\n\n\x0c36 Op. O.L.C. 93 (2012)\n\n1845, ch. 48, \xc2\xa7\xc2\xa7 2, 4, 5 Stat. 742, 743 (providing for admission of Iowa\nupon popular approval of conditions, including specified boundaries for\nthe State, set forth in the act) 15; Act of June 15, 1836, ch. 96, \xc2\xa7\xc2\xa7 2, 3, 5\nStat. 49, 49\xe2\x80\x9350 (providing for admission of Michigan upon acceptance of\nboundary conditions by popularly elected convention). 16\nThe historical record thus provides overwhelming support for the conclusion that Congress may adopt legislation that would authorize Puerto\nRico\xe2\x80\x99s admission as a State, effective upon approval by the Puerto Rican\nelectorate.\nB.\nIn addition to enacting contingent legislation to govern transitions to\nstatehood, Congress has relied on such legislation to accomplish other\n\ntion. See Act of May 29, 1848, ch. 50, 9 Stat. 233; 3 Uniting States, supra note 12, 1344,\n1346.\n15 Iowa voters rejected these conditions, but Iowa was later admitted by statute with\nadjusted boundaries. See Act of Dec. 28, 1846, ch. 1, 9 Stat. 117; Act of Aug. 4, 1846,\nch. 82, 9 Stat. 52; 1 Uniting States, supra note 12, at 424.\n16 The first convention elected pursuant to this statute rejected the boundary conditions, but a second convention accepted them and Congress admitted Michigan by statute,\ndeclaring the conditions in its prior enactment satisfied. See Act of Jan. 26, 1837, ch. 6,\n5 Stat. 144; 2 Uniting States, supra note 12, at 610\xe2\x80\x9314.\nIn other cases, Congress has provided for admission of territories as States upon presidential proclamation following satisfaction of conditions that did not necessarily involve a\nreferendum. See Act of Feb. 9, 1867, ch. 36, \xc2\xa7 3, 14 Stat. 391, 392 (conditioning Nebraska\xe2\x80\x99s admission on the legislature\xe2\x80\x99s declaration of assent to \xe2\x80\x9cthe fundamental condition\nthat within the State of Nebraska there shall be no denial of the elective franchise, or of\nany other right, to any person, by reason of race or color, excepting Indians not taxed\xe2\x80\x9d);\nProclamation of Mar. 1, 1867, 14 Stat. 820 (deeming condition satisfied and Nebraska\nadmitted as a state); J. Res. No. 1 of Mar. 2, 1821, 3 Stat. 645 (conditioning Missouri\xe2\x80\x99s\nadmission upon the legislature\xe2\x80\x99s assent, \xe2\x80\x9cby a solemn public act,\xe2\x80\x9d to the \xe2\x80\x9cfundamental\ncondition\xe2\x80\x9d that a provision in the proposed Missouri state constitution \xe2\x80\x9cshall never be\nconstrued to authorize the passage of any law, and that no law shall be passed in conformity thereto, by which any citizen, of either of the states in this Union, shall be excluded\nfrom the enjoyment of any of the privileges and immunities to which such citizen is\nentitled under the constitution of the United States\xe2\x80\x9d); Proclamation of Aug. 10, 1821,\n2 Messages & Papers 95 (1896) (deeming condition satisfied and Missouri admitted); cf.\nAct of Feb. 4, 1791, ch. 4, 1 Stat. 189 (deeming Kentucky admitted as of date some sixteen months after enactment).\n\n102\n\n\x0cAltering Puerto Rico\xe2\x80\x99s Relationship with the United States Through Referendum\n\nchanges in territories\xe2\x80\x99 political relationship with the United States, including transitions to independence.\nIn 1933 and 1934, for example, Congress passed contingent legislation\nproviding for the independence of the Philippines, which had become a\nUnited States territory in 1898 after the Spanish-American War and\nthrough the Treaty of Paris. Both statutes provided that the Philippines\nwould acquire independence upon issuance of a presidential proclamation,\nwithout further congressional action, ten years after the formation of a\nnew Philippine government pursuant to a popularly ratified constitution\nthat satisfied certain requirements. 17 The Philippine legislature rejected\nthe terms of the 1933 Act, but the territory ultimately acquired independence under the 1934 Act. 18\nIn the 1934 Act, Congress authorized the Philippine legislature to provide for the drafting, by elected delegates, of a constitution that met the\nAct\xe2\x80\x99s requirements. Id. \xc2\xa7\xc2\xa7 1\xe2\x80\x932, 48 Stat. at 456\xe2\x80\x9358. The Act required that\nthe constitution be submitted for the President\xe2\x80\x99s review within two years\nof the Act\xe2\x80\x99s enactment. If the President certified that the constitution\n\xe2\x80\x9cconform[ed] substantially with the provisions of [the] Act,\xe2\x80\x9d the constitution was to be submitted \xe2\x80\x9cto the people of the Philippine Islands for their\nratification or rejection at an election to be held within four months after\nthe date of such certification.\xe2\x80\x9d Id. \xc2\xa7\xc2\xa7 3\xe2\x80\x934, 48 Stat. at 458. Under the Act,\na majority vote in favor of the constitution was to be \xe2\x80\x9cdeemed an expression of the will of the people of the Philippine Islands in favor of Philippine independence.\xe2\x80\x9d Id. \xc2\xa7 4. Following ratification of such a constitution,\nthe Governor General of the territory was to provide for an election of\nofficers under the new constitution, and upon certification of the results of\nthis election, the President was required to \xe2\x80\x9cissue a proclamation announcing the results of the election.\xe2\x80\x9d Id. \xc2\xa7 4, 48 Stat. at 458\xe2\x80\x9359. The Act\nprovided that \xe2\x80\x9cupon the issuance of such proclamation by the President\n17 See Pub. L. No. 73-12, 748 Stat. 456 (1934) (\xe2\x80\x9c1934 Act\xe2\x80\x9d) (codified as amended at\n22 U.S.C. \xc2\xa7\xc2\xa7 1391\xe2\x80\x931395 (2006)); Pub. L. No. 72-311, 47 Stat. 761 (1933) (\xe2\x80\x9c1933 Act\xe2\x80\x9d);\nHooven & Allison Co. v. Evatt, 324 U.S. 652, 674\xe2\x80\x9376 (1945) (discussing history of\ncongressional enactments relating to government of the Philippines), overruled on other\ngrounds by Limbach v. Hooven & Allison Co., 466 U.S. 353 (1984).\n18 See generally Evatt, 324 U.S. at 675\xe2\x80\x9376; Valmonte v. INS, 136 F.3d 914, 916\xe2\x80\x9317 (2d\nCir. 1998); Rabang v. INS, 35 F.3d 1449, 1451 (9th Cir. 1994); Arnold H. Leibowitz,\nDefining Status: A Comprehensive Analysis of United States Territorial Relations 54\n(1989).\n\n103\n\n\x0c36 Op. O.L.C. 93 (2012)\n\nthe existing Philippine government shall terminate and the new government shall enter upon its rights, privileges, powers, and duties, as provided under the constitution.\xe2\x80\x9d Id. The Act required the President to issue a\nfurther proclamation surrendering United States control of the territory\nand recognizing Philippine independence on July Fourth, ten years after\nthe inauguration of this new government. Id. \xc2\xa7 10, 48 Stat. at 463; see\nalso J. Res. of June 29, 1944, \xc2\xa7 3, 58 Stat. 625, 626 (authorizing the\nPresident \xe2\x80\x9cto advance the date of the independence of the Philippine\nIslands by proclaiming their independence as a separate and selfgoverning nation prior to July 4, 1946\xe2\x80\x9d).\nIn accordance with the terms of this Act, President Roosevelt recognized, by proclamation effective November 15, 1935, the formation of a\nnew constitutional government for the Philippines. On July 4, 1946,\nPresident Truman proclaimed the independence of the Philippines. See\nProclamation No. 2148, 49 Stat. 3481 (1935); Proclamation No. 2695,\n3 C.F.R. 86, 86 (1946), reprinted in 60 Stat. 1352 (1946), and in 22\nU.S.C. \xc2\xa7 1394 note (2006).\nMore recently, the United States altered its political relationship with\nPalau through legislation that conditioned the change on a vote by the\nterritorial electorate. After World War II, Palau became part of a \xe2\x80\x9ctrust\nterritory\xe2\x80\x9d of the United States under the United Nations Charter. See,\ne.g., Morgan Guar. Trust Co. of N.Y. v. Republic of Palau, 924 F.2d\n1237, 1237\xe2\x80\x9340 (2d Cir. 1991). In the 1980s, the United States negotiated\na \xe2\x80\x9cCompact of Free Association\xe2\x80\x9d with the territory, according to which\nPalau would become a sovereign republic while maintaining extensive\nties with the United States. See Compact of Free Association, Pub. L. No.\n99-658, \xc2\xa7 201, 100 Stat. 3672, 3678\xe2\x80\x9379 (1986); see generally Stanley K.\nLaughlin, Jr., The Law of United States Territories and Affiliated Jurisdictions 461\xe2\x80\x9378 (1995) (\xe2\x80\x9cLaughlin\xe2\x80\x9d). The compact provided that it would\ntake effect only upon approval by the United States and Palau governments according to each government\xe2\x80\x99s constitutional processes, and\napproval by Palau\xe2\x80\x99s voters in a plebiscite. See Compact of Free Association \xc2\xa7 411, 100 Stat. at 3698.\nCongress initially approved this compact in a 1986 statute that required enactment of a further joint resolution before the compact could\ntake effect. Pub. L. No. 99-658, \xc2\xa7 101(a), (d)(1)(B), 100 Stat. at 3673,\n3674. But in 1989, Congress passed a second statute authorizing \xe2\x80\x9centry\ninto force\xe2\x80\x9d of the compact, following a specified period of notice to\n104\n\n\x0cAltering Puerto Rico\xe2\x80\x99s Relationship with the United States Through Referendum\n\nCongress, \xe2\x80\x9csubject to the condition that the Compact, as approved by the\nCongress in [the first statute], is approved by the requisite percentage of\nvotes cast in a referendum conducted pursuant to the Constitution of\nPalau, and such approval is free from any legal challenge.\xe2\x80\x9d Pub. L. No.\n101-219, \xc2\xa7 101, 103 Stat. 1870, 1870 (1989). 19 Palau voters approved\nthe compact by plebiscite on November 9, 1993, and on September 27,\n1994, President Clinton issued a proclamation deeming the compact\neffective as of October 1, 1994. The proclamation declared that \xe2\x80\x9cPalau\nwill thereafter be self-governing and no longer subject to [United States]\nTrusteeship.\xe2\x80\x9d Proclamation No. 6726, 3 C.F.R. 104, 105 (1994), reprinted in 108 Stat. 5631, 5632 (1994). Palau thus gained full independence\nunder legislation that authorized the change in status upon the occurrence\nof a future contingency\xe2\x80\x94voter approval in a plebiscite\xe2\x80\x94without further\naction by Congress. 20\nEven Puerto Rico itself previously has undergone a significant change\nin its political relationship with the United States as a result of selfexecuting contingent legislation. In 1950, in Public Law 81-600, Congress\nestablished a process through which Puerto Rico\xe2\x80\x99s voters could adopt a\nconstitution for the local government of the territory. The statute, however, made the drafting of a new constitution contingent upon approval of\nthe Act\xe2\x80\x99s terms by a majority of voters participating in \xe2\x80\x9can island-wide\nreferendum to be held in accordance with the laws of Puerto Rico.\xe2\x80\x9d Id.\n\xc2\xa7 2, 64 Stat. at 319. Moreover, Public Law 81-600 provided that a constitution drafted and approved in accordance with the Act\xe2\x80\x99s procedures\nwould \xe2\x80\x9cbecome effective\xe2\x80\x9d only \xe2\x80\x9c[u]pon approval by the Congress,\xe2\x80\x9d id.\nThe Palau Supreme Court ruled initially that a provision in Palau\xe2\x80\x99s constitution regarding nuclear materials on the island necessitated seventy-five percent approval for\nratification of the compact, a decision that resulted in several failed votes to ratify the\ncompact. Palau\xe2\x80\x99s constitution was eventually amended to allow approval of the compact\nby majority vote. See Chimene I. Keitner & W. Michael Reisman, Free Association: The\nUnited States Experience, 39 Tex. Int\xe2\x80\x99l L.J. 1, 50\xe2\x80\x9351 (2003); Laughlin at 98\xe2\x80\x93100, 477\xe2\x80\x9378.\n20 Two other states formed from the Trust Territory of the Pacific Islands\xe2\x80\x94the Republic of the Marshall Islands and the Federated States of Micronesia\xe2\x80\x94also entered into\ncompacts of free association with the United States. These territories, however, approved\nthe compacts in plebiscites prior to approval of the compacts by Congress. See Proclamation No. 5564, 51 Fed. Reg. 40,399 (Nov. 3, 1986) (describing plebiscite in Federated\nStates of Micronesia on June 21, 1983, and in the Marshall Islands on September 7,\n1983), reprinted in 48 U.S.C. \xc2\xa7 1801 note (2006); Pub. L. No. 99-239, 99 Stat. 1770\n(1986) (providing congressional approval of compacts for these territories).\n19\n\n105\n\n\x0c36 Op. O.L.C. 93 (2012)\n\n\xc2\xa7 3, 64 Stat. at 319, and Congress ultimately provided such approval only\nin further contingent legislation. Specifically, in 1952, Congress approved\na locally adopted constitution for Puerto Rico, but provided that certain\nprovisions would have \xe2\x80\x9cno force and effect\xe2\x80\x9d until specified amendments\nwere adopted \xe2\x80\x9cby the people of Puerto Rico.\xe2\x80\x9d Congress also provided that\nthe constitution as a whole would \xe2\x80\x9cbecome effective\xe2\x80\x9d only \xe2\x80\x9cwhen the\nConstitutional Convention [that drafted the constitution] shall have declared in a formal resolution its acceptance in the name of the people of\nPuerto Rico of the conditions of approval herein contained, and when the\nGovernor of Puerto Rico, being duly notified by the proper officials of the\nConstitutional Convention of Puerto Rico that such resolution of acceptance has been formally adopted, shall issue a proclamation to that\neffect.\xe2\x80\x9d Pub. L. No. 82-447, 66 Stat. at 327\xe2\x80\x9328. In accordance with the\nterms of this statute, the Puerto Rican Constitutional Convention adopted\nthe required resolution, and the Governor of Puerto Rico deemed the\nconstitution effective in a proclamation issued on July 25, 1952. 21\nConsidered in combination with Congress\xe2\x80\x99s longstanding and repeated\nuse of contingent legislation to admit territories as states, these examples\nof the Philippines\xe2\x80\x99 and Palau\xe2\x80\x99s transitions to independence and Puerto\nRico\xe2\x80\x99s acquisition of commonwealth status present a powerful historical\ncase for the permissibility of legislation that authorizes an alteration of\nPuerto Rico\xe2\x80\x99s status as triggered by a vote of the Puerto Rican electorate.\nSee, e.g., Mistretta v. United States, 488 U.S. 361, 401 (1989) (\xe2\x80\x9c\xe2\x80\x98traditional ways of conducting government . . . give meaning\xe2\x80\x99 to the Constitution\xe2\x80\x9d) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,\n610 (1952) (Frankfurter, J., concurring)); The Pocket Veto Case, 279\nU.S. 655, 689 (1929) (\xe2\x80\x9c[l]ong settled and established practice is a consideration of great weight\xe2\x80\x9d in constitutional interpretation); Whether\nUruguay Round Agreements Required Ratification as a Treaty, 18 Op.\nO.L.C. 232, 233 (1994) (\xe2\x80\x9ca significant guide to the interpretation of the\nConstitution\xe2\x80\x99s requirements is the practical construction placed on it by\nthe executive and legislative branches acting together\xe2\x80\x9d).\n21\n\nSee 48 U.S.C. \xc2\xa7 731d note (2006); Resolution 34, Constitutional Convention of\nPuerto Rico (July 10, 1952), reprinted in Documents on the Constitutional History of\nPuerto Rico 196\xe2\x80\x9397 (Office of the Commonwealth of Puerto Rico ed., 2d ed. 1964);\nEstablishment of the Commonwealth of Puerto Rico, Proclamation by the Governor of\nPuerto Rico (July 25, 1952), reprinted in Documents on the Constitutional History of\nPuerto Rico at 198.\n\n106\n\n\x0cAltering Puerto Rico\xe2\x80\x99s Relationship with the United States Through Referendum\n\nIII.\nIn accord with the analysis offered above, this Office and the Department of Justice have indicated on many occasions that Congress may\nprovide for a change in Puerto Rico\xe2\x80\x99s status, contingent upon actions by\nthe Puerto Rican electorate, without the need for subsequent congressional\naction.\nIn 1959, this Office reviewed a bill that would have provided for admission of Puerto Rico as a State upon presidential proclamation, without\nfurther congressional action, following ratification of a state constitution\nand election of congressional representatives by Puerto Rico voters. See\nMemorandum for Lawrence E. Walsh, Deputy Attorney General, from\nRobert Kramer, Assistant Attorney General, Office of Legal Counsel, Re:\nH.R. 7003, 86th Cong., 1st Sess., a bill \xe2\x80\x9cTo provide for a referendum in\nPuerto Rico on the admission of Puerto Rico into the Union as a State,\nand to establish the procedure for such admission if the people of Puerto\nRico desire it\xe2\x80\x9d (Oct. 12, 1959) (\xe2\x80\x9cKramer Memo\xe2\x80\x9d); H.R. 7003, 86th Cong.\n\xc2\xa7 206(a) (as introduced in House, May 7, 1959). We questioned the propriety of \xe2\x80\x9cusing this procedure in the case of Puerto Rico,\xe2\x80\x9d because it\nwould have provided for admission of Puerto Rico without prior congressional review of the state constitution to be adopted by the territory, thus\nreducing congressional \xe2\x80\x9ccontrol\xe2\x80\x9d over the procedure. But we expressed no\nuncertainty about the constitutional permissibility of the procedure in the\nbill. On the contrary, we noted that it was \xe2\x80\x9cpatterned upon one of the\nmethods frequently used to admit states to the Union\xe2\x80\x9d and that \xe2\x80\x9ca great\nmany territories [had] secured admission as the result of a single act\npassed by the Congress\xe2\x80\x9d establishing similar preconditions. Kramer\nMemo at 2, 3.\nThirty years later, our Office provided advice regarding \xe2\x80\x9cthe general\nlegal requirements for admitting Puerto Rico to the Union.\xe2\x80\x9d Memorandum\nfor Thomas M. Boyd, Assistant Attorney General, Office of Legislative\nAffairs, from John O. McGinnis, Deputy Assistant Attorney General,\nOffice of Legal Counsel, Re: Statehood for Puerto Rico at 1 (Mar. 3,\n1989). Explaining that \xe2\x80\x9cCongress has employed a variety of methods to\nadmit new States into the Union,\xe2\x80\x9d we gave a summary description of\nsome of the types of contingent legislation Congress has used to grant\nstatehood, including making admission effective upon the results of a\n107\n\n\x0c36 Op. O.L.C. 93 (2012)\n\nterritorial vote following adoption of a constitution. \xe2\x80\x9cCongress . . . may\nset conditions for a territory to meet before it becomes a state,\xe2\x80\x9d we explained, so long as the conditions do not \xe2\x80\x9cviolate some other textual\nprovision of the Constitution or . . . interfere with essential aspects of\nstate sovereignty, such as dictating the location of the state capital.\xe2\x80\x9d Id. 22\nIn the same year, this Office and the Department commented on S. 712,\na bill that would have provided for self-executing changes in Puerto\nRico\xe2\x80\x99s status based on the results of a plebiscite. 23 Although the Department expressed concerns about other aspects of the bill, including concerns related to the proposed referendum process, it did not suggest that\nCongress lacked authority to provide for a change in Puerto Rico\xe2\x80\x99s political relationship with the United States contingent on a referendum in\nPuerto Rico. 24 On the contrary, the Acting Deputy Attorney General\nstated in testimony that \xe2\x80\x9c[t]he Administration strongly supports the right\nof the people of Puerto Rico to choose their political status by means of a\nreferendum,\xe2\x80\x9d and that \xe2\x80\x9cthe referendum can present options that, if select-\n\n22\nThe Supreme Court has found the so-called \xe2\x80\x9cequal footing\xe2\x80\x9d doctrine implicit in the\nterms \xe2\x80\x9cState\xe2\x80\x9d and \xe2\x80\x9cUnion\xe2\x80\x9d in the provisions governing admission of States. According to\nthe doctrine, all states in the Union must stand on terms of \xe2\x80\x9cconstitutional equality\xe2\x80\x9d with\nall other states regardless of when they were admitted, and Congress, therefore, may not\n\xe2\x80\x9cdeprive[]\xe2\x80\x9d a new state of \xe2\x80\x9cany of the power constitutionally possessed by other States.\xe2\x80\x9d\nCoyle v. Smith, 221 U.S. 559, 570, 580 (1911); see also, e.g., Minnesota v. Mille Lacs\nBand of Chippewa Indians, 526 U.S. 172, 203\xe2\x80\x9304 (1999). At the same time, the Court has\nrecognized that Congress \xe2\x80\x9cmay require, under penalty of denying admission,\xe2\x80\x9d that a\nterritory seeking admission as a State satisfy certain conditions before being admitted to\nthe Union. Coyle, 221 U.S. at 568.\n23 See Memorandum for Edith E. Holiday, General Counsel, Department of Treasury,\nfrom John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re:\nS. 712 Puerto Rico Status (July 6, 1989); see also S. 712, 101st Cong. (as introduced in\nSenate, Apr. 5, 1989); S. 712, 101st Cong. (as ordered reported by Senate Committee on\nEnergy and Natural Resources, Sept. 6, 1989); S. Rep. No. 101-481 (1990) (report of\nSenate Finance Committee); S. Rep. No. 101-120 (1989) (report of Senate Energy and\nNatural Resources Committee).\n24 See, e.g., Puerto Rico\xe2\x80\x99s Political Status: Hearing on S. 712 Before the S. Comm. on\nFinance, S. Hrg. No. 101-557, pt. 1, at 6 (1989) (statement of Shirley D. Peterson,\nAssistant Attorney General, Tax Division); Political Status of Puerto Rico: Hearings on\nS. 710, 711, and 712 Before the S. Comm. on Energy & Nat. Resources, S. Hrg. No. 101198, pt. 3, at 13 (1989) (statement of Edward S.G. Dennis, Acting Deputy Attorney\nGeneral).\n\n108\n\n\x0cAltering Puerto Rico\xe2\x80\x99s Relationship with the United States Through Referendum\n\ned by a majority of the voters in Puerto Rico, can immediately be implemented.\xe2\x80\x9d 25\nIn the following Congress, the Attorney General raised concerns about\nlegislation similar to S. 712 that was not self-executing, but rather called\nfor specified House and Senate Committee Chairmen to introduce legislation, with terms prescribed by the bill, that would have enacted a particular outcome upon approval by voters in Puerto Rico through a referendum. See S. 244, 102d Cong. \xc2\xa7 101(e)\xe2\x80\x93(f) (as introduced in Senate, Jan.\n23, 1991). Attorney General Thornburgh observed that, \xe2\x80\x9c[i]f Congress\nintends to truly commit itself to implement whatever status option receives a majority in accordance with [the bill], it should return to the selfexecuting approach and language of S. 712.\xe2\x80\x9d Political Status of Puerto\nRico: Hearings on S. 244, to Provide for a Referendum on the Political\nStatus of Puerto Rico Before the S. Comm. on Energy & Nat. Resources,\n102d Cong. 195 (1991) (prepared statement by Attorney General Richard\nThornburgh) (second emphasis added); see also H.R. 4765, 101st Cong.\n(as passed by House, Oct. 10, 1990); H.R. Rep. No. 101-790, pts. 1 & 2\n(1990).\nThese past statements by the Justice Department provide further support for the constitutionality of legislation conditioning a self-executing\nchange in Puerto Rico\xe2\x80\x99s political relationship with the United States on\nthe results of a referendum in Puerto Rico.\nIV.\nIn light of the permissibility of contingent legislation and the numerous\nhistorical precedents for legislation that conditions both statehood and\nindependence on votes by territorial electorates without the need for\nsubsequent congressional action, we think it clear that Congress may\nprovide that a change in Puerto Rico\xe2\x80\x99s political relationship with the\nUnited States will take effect upon approval of the change by Puerto\nRico\xe2\x80\x99s voters.\nS. Hrg. No. 101-198, supra note 24, pt. 3, at 22 (statement of Edward S.G. Dennis,\nActing Deputy Attorney General) (emphasis added); see also id. at 13 (testimony of\nEdward S.G. Dennis, Acting Deputy Attorney General) (\xe2\x80\x9cthe President is very much in\nfavor of the approach of having the referendum process be one through legislation that\nwould be self-executing\xe2\x80\x9d).\n25\n\n109\n\n\x0c36 Op. O.L.C. 93 (2012)\n\nWe recognize that the legislation currently being contemplated, like\nsome of the prior bills concerning Puerto Rico\xe2\x80\x99s status discussed in Part\nIII, may provide voters in Puerto Rico with more than two status options\nfrom which to choose; the legislation might include statehood, independence, and a modified commonwealth relationship as alternatives. See, e.g.,\nS. 712, 101st Cong. \xc2\xa7 2 (as introduced in Senate, Apr. 5, 1989) (providing\nfor options of \xe2\x80\x9cstatehood,\xe2\x80\x9d \xe2\x80\x9cindependence,\xe2\x80\x9d or \xe2\x80\x9ccommonwealth\xe2\x80\x9d to take\neffect, in accordance with terms and procedures set forth in the bill,\nfollowing approval by a majority of voters in an initial referendum or\nrunoff referendum). In this respect, the legislation would depart from the\nhistorical practice we have reviewed, where contingent legislation provided territorial voters with only two status options. This divergence might\nform the basis of an argument that a referendum offering voters more than\ntwo status options would cross a constitutional line by impermissibly\ndelegating Congress\xe2\x80\x99s authority to territorial voters.\nIn our judgment, however, this potential, limited divergence from historical practice is immaterial to our constitutional analysis. Congress\nhistorically has offered to territorial electorates two choices\xe2\x80\x94statehood\n(or in some cases independence) on the one hand, and continued territorial\nstatus on the other\xe2\x80\x94each of which was acceptable to Congress, and each\nof which came with different legal and policy implications. Congress thus\nhas given territorial electorates ultimate control over whether their territories have become states (or occupied some other status), as would be the\ncase with a referendum that offered Puerto Rico voters three choices. As\nwe note above, see supra note 6 and accompanying text, Congress may\nenact legislation conditioning the effectiveness of a law on approval by\naffected parties. 26 In our view, as long as Congress offered Puerto Rico\nvoters a limited range of options specified in advance, it would make no\nmeaningful constitutional difference whether those options numbered two\nThe outcome of voting on referenda that specify a limited set of options remains\nsimply a \xe2\x80\x9ccondition[]\xe2\x80\x9d that Congress has \xe2\x80\x9cexercise[d] its legislative authority\xe2\x80\x9d to \xe2\x80\x9cprescribe[e] [as] the condition[] of [the statute\xe2\x80\x99s] application.\xe2\x80\x9d Currin, 306 U.S. at 16; see\nalso Clinton v. City of New York, 524 U.S. 417, 443\xe2\x80\x9344 (1998) (indicating the permissibility of legislation that makes specified results \xe2\x80\x9ccontingent upon a condition that did not\nexist when the [statute] was passed,\xe2\x80\x9d requires executive officials to effectuate that result\nupon occurrence of the contingency, and provides for execution of a \xe2\x80\x9cpolicy that Congress\nhad embodied in the statute\xe2\x80\x9d).\n26\n\n110\n\n\x0cAltering Puerto Rico\xe2\x80\x99s Relationship with the United States Through Referendum\n\nor three, and the process for resolving Puerto Rico\xe2\x80\x99s status would not\npresent delegation concerns. We therefore conclude that the present\nproposals for referenda would be lawful.\nCRISTINA M. RODR\xc3\x8dGUEZ\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n111\n\n\x0c'


b'Service on the Board of Directors of Non-Federal Entities by\nFederal Bureau of Investigation Personnel in Their Official\nCapacities\nSection 208 of title 18 prohibits a Federal Bureau of Investigation employee from serving on the\nboard of directors o f an outside organization in his or her official capacity, unless the service\nis authorized by statute or the employee obtains either a release o f fiduciary obligations by the\norganization or a waiver of the requirements of section 208.\nN o v e m b e r 19, 1996\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nF e d e r a l B u r e a u o f In v e s t ig a t io n\n\nYou have requested our advice as to whether Federal Bureau of Investigation\n(\xe2\x80\x9c FBI\xe2\x80\x9d ) personnel may serve on the boards of directors of non-federal nonprofit\nentities in their official capacities. Specifically, you have raised the question\nwhether 18 U.S.C. \xc2\xa7208 would prohibit such service. Section 208 prohibits any\nofficer or employee of the executive branch from participating as a government\nofficial in any \xe2\x80\x9c particular matter\xe2\x80\x9d in which an \xe2\x80\x9c organization in which he is serv\xc2\xad\ning as officer, director, trustee, general partner or employee . . . has a financial\ninterest.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 208(a). We conclude that this broad prohibition against con\xc2\xad\nflicts of interest within the federal government would prevent a government em\xc2\xad\nployee from serving on the board of directors of an outside organization in his\nor her official capacity, in the absence of: (1) statutory authority or a release\nof fiduciary obligations by the organization that might eliminate the conflict of\ninterest, or (2) a waiver of the requirements of \xc2\xa7 208(a), pursuant to 18 U.S.C.\n\xc2\xa7 208(b).\nOur conclusion follows inevitably from earlier opinions of this Office on the\nscope of \xc2\xa7 208. Specifically, we recently found that \xc2\xa7 208 would prevent an execu\xc2\xad\ntive officer or employee who was also serving as the director of an outside organi\xc2\xad\nzation (in a state that imposed fiduciary obligations upon such directors) from\nparticipating in any particular matter in his or her government employment in\nwhich the outside organization had a financial interest. See Applicability o f 18\nU.S.C. \xc2\xa7 2 0 8 to P roposed Appointment o f Government Official to the B oard o f\nConnie L ee , 18 Op. O.L.C. 136 (1994) (\xe2\x80\x9c Connie Lee opinion\xe2\x80\x9d ). In the Connie\n\nLee opinion, we made clear that the inherent conflict of interest between the gov\xc2\xad\nernment employee\xe2\x80\x99s loyalty to the federal government and his or her fiduciary\nduty to the outside organization under state law could be overcome only if such\nservice were expressly authorized by statute, or if the outside organization waived\napplicable fiduciary obligations.1 Neither of those exceptions applied to the situa\xc2\xad\n1This would require that applicable state law permit a waiver o f fiduciary obligations.\n\n379\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\ntion in the Connie Lee opinion, nor are we aware that they apply to the question\nyou have raised.\nAlthough our focus in the Connie Lee opinion was with how this conflict of\ninterest might influence the government employee\xe2\x80\x99s official duties in his or her\ngovernm ent job, that conflict is no less troublesome in its effect upon the employ\xc2\xad\nee\xe2\x80\x99s official actions as director of the outside organization. The prohibition in\n\xc2\xa7208 extends to any official action by a government employee that affects the\nemployee\xe2\x80\x99s financial interests or those of other specified persons or entities, such\nas an organization for which the employee is a director. In the instance you have\nasked us to address, the employee performs official duties for the FBI in serving\non the board of the outside organization. Thus, \xc2\xa7208 would apply to any action\nthe employee takes as a director that affects the financial interests of the outside\norganization.\nBETH NOLAN\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n380\n\n\x0c'