b"Payment of Moving Expenses as Supplementation of a\nGovernment Officer\xe2\x80\x99s Salary\nPrivate em ployer\xe2\x80\x99s payment o f prospective federal officer\xe2\x80\x99s moving expenses does not\nconstitute a supplementation o f his federal salary in violation of 18 U.S.C. \xc2\xa7 209, where\nthe payment is contractually or routinely paid to departing employees, where the\npurpose of the payments is o th er than to compensate federal employment, and where\nthe entitlement and amount o f the payment do not favor federal employment.\nWhile neither the prospective officer\xe2\x80\x99s continued affiliation with his private employer, nor\nits payment o f his moving expenses, create an immediate or anticipated conflict of\ninterest with his governmental duties, the Justice Departm ent\xe2\x80\x99s Standards o f Conduct\nmight require that he disqualify himself from any official participation in a matter\naffecting his private employer\xe2\x80\x99s interests.\n\nMay 21, 1981\nMEMORANDUM OPINION FOR A PROSPECTIVE\nDEPARTMENT O F JUSTICE OFFICER\nYou have asked us to advise you concerning the propriety of the\nproposed payment of your moving expenses by your present employer,\nUniversity X, in anticipation of your nomination, confirmation, and\nservice as an officer of the Department of Justice. We understand that\nduring your tenure as an officer of the Department you would be on a\nleave of absence from the University, and that the payment of your\nmoving expenses would be made pursuant to the University\xe2\x80\x99s \xe2\x80\x9cProfes\xc2\xad\nsional Development Program.\xe2\x80\x9d You have provided us with the portions\nof the University handbook that describe this program, and by letter\nyou have described your school\xe2\x80\x99s policy and practice in administering\nthe program. In light of this information, upon which we have relied,\nwe conclude that the proposed payment of moving expenses 1 is ac\xc2\xad\nceptable under 18 U.S.C. \xc2\xa7209 and under this Department\xe2\x80\x99s Standards\nof Conduct, 28 C.F.R. Part 45.\nAs you know, 18 U.S.C. \xc2\xa7 209 prohibits a government employee\nfrom accepting \xe2\x80\x9cany salary, or any contribution to or supplementation\nof salary, as compensation for his services as an officer or employee of\nthe executive branch.\xe2\x80\x9d It is our view that the payment of moving\nexpenses may constitute a supplementation of salary within the purview\nof \xc2\xa7 209, if the payment is made \xe2\x80\x9cas compensation for\xe2\x80\x9d federal employ\xc2\xad\n1 We assume that the University's payment will not exceed your actual moving expenses and that it\nwill be otherw ise reasonable in am ount.\n\n150\n\n\x0cment. Cf. \xc2\xa7 209(e). On the other hand, if the payment is made for past\nor future services to a private employer, without regard to the recipi\xc2\xad\nent\xe2\x80\x99s governmental duties, then it would not be prohibited by \xc2\xa7 209.\nSee, e.g., 41 Op. Att\xe2\x80\x99y Gen. 217 (1955). Since it is difficult to ascertain\nthe true motivations behind any given payment, we generally discour\xc2\xad\nage the acceptance of moving expenses from former employers. How\xc2\xad\never, if it can be demonstrated that moving expenses are contractually\nor routinely paid by the private employer to departing employees, that\nthe purpose of these payments is other than to compensate federal\nemployment, and that the entitlement and amount of payment do not\nfavor federal employment, then we will approve the payments under\n\xc2\xa7 209. In our judgment, the proposed payment by University X meets\nthese standards.\nThe University\xe2\x80\x99s Professional Development Program apparently was\nintended to serve in lieu of a university sabbatical program. It is clear\nboth from the provisions of the plan, and from the traditional function\nof sabbaticals, that the primary purpose of such programs is to enhance\nthe quality of service that the employee will render to the institution\nupon return from the leave. In this regard we note that University X\xe2\x80\x99s\nplan requires subsequent service, and provides for the evaluation of\nleave applications based upon their potential contribution to the goals\nand stature of the University. The materials you have provided also\ndemonstrate to our satisfaction that University X\xe2\x80\x99s plan compensates\nfaculty for moving expenses with some regularity, and that it is not\ndesigned or administered to favor federal employment over other forms\nof professional development leave. Your letter explains that your\nschool\xe2\x80\x99s policy has been to pay the moving expenses of faculty on\nprofessional development leave whenever those expenses are not paid\nfrom another source. In addition, you have advised us in telephone\nconversations that the vast majority of the University faculty who have\ntaken professional development leave have done so to undertake\nprojects other than federal employment. In light of these representa\xc2\xad\ntions and our understanding of the purpose of the plan, we conclude\nthat the University\xe2\x80\x99s payment of your moving expenses would not be\ncompensation for your federal employment in contravention of \xc2\xa7 209.\nIn addition to the proscriptions of \xc2\xa7 209, the Justice Department\xe2\x80\x99s\nStandards of Conduct require that employees avoid financial interests\nthat create a conflict of interest with their governmental duties, 28\nC.F.R. \xc2\xa7 45.735-4. We are aware of not immediate or anticipated con\xc2\xad\nflicts that would be created by your continued affiliation with Univer\xc2\xad\nsity X or by its payment of your moving expenses. However, should\nany matter affecting the interests of University X come before you in\nyour official capacity, you may be required to disqualify yourself from\n151\n\n\x0cany official participation in the matter. \xc2\xa745.735-5. If such a situation\narises, we will be available to advise you about it.\nT heodore\n\nB. O l s o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n152\n\n\x0c"


b'Authority of Congress to Regulate\nWiretapping by the States\nCongress has authority under the Commerce Clause to regulate state wiretapping practices by\nprescribing a rule of evidence in state courts, limiting the authority of state officials to tap wires and\nto disclose and use information thereby obtained, prescribing the grounds and findings on which a\nstate court may issue wiretap orders, and directing state courts to file reports with federal officials.\n\nFebruary 26, 1962\n\nMEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL\nOne question presented by the Department\xe2\x80\x99s wiretap bill is the constitutional\nauthority of Congress to prescribe a rule of evidence in state courts, to limit the\nauthority of state officials to tap wires and to disclose and use information thereby\nobtained, to prescribe the grounds and findings on which a state court may issue\nwiretap orders, and to direct state courts to file reports with federal officials.\nCongress\xe2\x80\x99s power to do all of these things rests primarily on its power to regulate interstate commerce. The nation\xe2\x80\x99s telephone and telegraph systems are\nintegrated networks, used for the transmission of messages across state lines.\nCongress has the power to preserve the integrity of those systems, and hence to\nprohibit interception of both interstate and intrastate communications. Weiss v.\nUnited States, 308 U.S. 321 (1939). In so doing, it may prohibit action by state\nofficers pursuant to state law. Benanti v. United States, 355 U.S. 96 (1957). Since\nCongress can prohibit all interceptions of wire communications, it can also permit\ninterception on such terms and conditions as it deems appropriate to protect the\npublic interest. In particular, it can adopt appropriate safeguards to protect the\nprivacy of users of the telephone and telegraph systems. To aid in enforcing these\nlimitations, it can remove an incentive to unlawful wiretapping by making\ninadmissible any evidence derived therefrom. And to enable Congress to review\nthe effectiveness of its legislation, it can require reports.\nUnregulated wiretapping would \xe2\x80\x9cimpinge severely on the liberty of the individual.\xe2\x80\x9d Schwartz v. Texas, 344 U.S. 199, 205 (1952) (Douglas, J., dissenting). The\nfear of such tapping may be a deterrent to free expression. Hence, while the Fourth\nAmendment is inapplicable, Olmstead v. United States, 277 U.S. 438 (1928),*\nunregulated wiretapping by public officials might well raise constitutional issues\nunder the Due Process Clauses of the Fifth and Fourteenth Amendments. Hence\n\n*\nEditor\xe2\x80\x99s Note: Olmstead was subsequently overruled in relevant part by Katz v. United States, 389\nU.S. 347 (1967); see also Berger v. New York, 388 U.S. 41, 64 (1967) (Douglas, J., concurring) (\xe2\x80\x9cI join\nthe opinion of the Court because at long last it overrules sub silentio Olmstead v. United States, 277\nU.S. 438, and its offspring and brings wiretapping and other electronic eavesdropping fully within the\npurview of the Fourth Amendment.\xe2\x80\x9d).\n\n248\n\n\x0cAuthority of Congress to Regulate Wiretapping by the States\n\nthe provisions of the bill restricting state action can also be sustained as an\nexercise of Congress\xe2\x80\x99s power to enforce the Fourteenth Amendment.\nWhere Congress has regulatory authority under the Commerce Clause, the war\npower, etc., the Supreme Court has frequently sustained limitations on state courts\nand other state officials as \xe2\x80\x9cnecessary and proper\xe2\x80\x9d to carry into execution the\ngranted powers. U.S. Const. art. I, \xc2\xa7 8, cl. 18. For example:\nUllmann v. United States, 350 U.S. 422 (1956) (immunity from\nprosecution in a state court);\nAdams v. Maryland, 347 U.S. 179 (1954) (prohibition against use in\nstate court of evidence given before congressional committee);\nKalb v. Feuerstein, 308 U.S. 433 (1940) (prohibition against state\ncourt foreclosure proceeding);\nFarmers Educ. & Coop. Union v. WDAY, Inc., 360 U.S. 525 (1959)\n(immunity from state libel action); and\nTesta v. Katt, 330 U.S. 386 (1947) (requirement that state courts enforce federal act).\nIn situations in which Congress has required state courts to enforce federal\nrights, it has prescribed state practice in considerable detail. Thus, in the Immigration and Nationality Act of 1952, Congress conferred jurisdiction to naturalize\npersons as citizens of the United States on state courts of record (8 U.S.C.\n\xc2\xa7 1421(a) (Supp. II 1959\xe2\x80\x9360)); prescribed in detail the form of petitions, the\nprocedure on hearings, and the form of certificates (8 U.S.C. \xc2\xa7\xc2\xa7 1445\xe2\x80\x931449\n(1958)); and required clerks of state courts to file certain reports with the Attorney\nGeneral (8 U.S.C. \xc2\xa7 1450 (1958)). Similarly, in numerous cases in state courts\nunder the Federal Employers\xe2\x80\x99 Liability Acts, 45 U.S.C. \xc2\xa7\xc2\xa7 51 et seq. (1958), and\nthe Jones Act, 46 U.S.C. \xc2\xa7 688 (1958), the courts have held that various state rules\nof evidence and practice\xe2\x80\x94such as burden of proof of contributory negligence,\nrules of construction of pleadings, right to directed verdict or to judgment\nnotwithstanding the verdict, and statutes of limitation\xe2\x80\x94have been superseded by\nthe federal act. E.g., Second Employers\xe2\x80\x99 Liability Cases, 223 U.S. 1 (1912); Cent.\nVt. Ry. v. White, 238 U.S. 507 (1915); Bailey v. Cent. Vt. Ry. 319 U.S. 350 (1943);\nBrown v. W. Ry. of Ala., 338 U.S. 294 (1949); Dice v. Akron, Canton & Youngstown R.R., 342 U.S. 359 (1952); Cox v. Roth, 348 U.S. 207 (1955).\nIn Schwartz v. Texas, 344 U.S. 199, 203 (1952), the Court reserved decision on\nwhether Congress had power to render evidence obtained by illegal wiretapping\ninadmissible in a state court. However, in Benanti v. United States, 355 U.S. 96,\n101 (1957), the rationale of the Schwartz decision was stated to be that Congress\n\n249\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nwould not be presumed to have thwarted a state rule of evidence \xe2\x80\x9cin the absence of\na clear indication to that effect.\xe2\x80\x9d\nThe Schwartz decision rested in part (344 U.S. at 201) on Wolf v. Colorado,\n338 U.S. 25 (1949), which has since been overruled by Mapp v. Ohio, 367 U.S.\n643 (1961). In holding, in Mapp, that the Fourth and Fourteenth Amendments\nrequire the exclusion in state courts of evidence derived from an unlawful search,\nthe Court relied on the following practical considerations: (1) the exclusionary rule\nis the only effective means to enforce the prohibition against unlawful searches,\nsince it removes the incentive to disregard it (367 U.S. at 656); (2) by admitting\nevidence unlawfully seized, the states encourage disobedience to the Federal\nConstitution (id. at 657); (3) the coexistence of two different rules of evidence in\nfederal and state courts is productive of confusion and mischief, and an invitation\nto evasion of the law (id. at 657\xe2\x80\x9358). These considerations are essentially applicable to the rule of evidence proposed in section 3 of the present bill. Since the Court\ndeemed the exclusionary rule an appropriate means of enforcing the constitutional\nprohibition against unlawful seizures, Congress can properly deem it an appropriate means of enforcing the statutory prohibition of unlawful wiretaps.\nNICHOLAS deB. KATZENBACH\nAssistant Attorney General\nOffice of Legal Counsel\n\n250\n\n\x0c'


b'Nominations for Prospective Vacancies on the Supreme Court\nU nder A rticle \xe2\x96\xa1 , \xc2\xa7 2, cl. 2 of the C onstitution, the appointm ent process for judges consists of\nthree steps: nom ination by the President, advice and consent o f the Senate, and appointment\nby the President. A President may nominate, and the Senate may confirm, a person to an office\nin anticipation that the office will be vacant during the President\xe2\x80\x99s term o f office. Confirma\xc2\xad\ntion w ithout appointm ent does n o t confer any rights on the nominee; the President remains\nfree to decide that he does not w ant to appoint a confirmed nominee. W hen the anticipated\nvacancy does not arise, no appointm ent o f the confirm ed nominee is possible..\n\nJuly 9, 1986\nM\n\nem o ran d um\n\nO\n\np in io n f o r t h e\n\nAttorn ey G eneral\n\nThis memorandum responds to your request for an opinion of this Office on\nwhether the President may nominate, and the Senate may confirm, individuals\nfor prospective vacancies on the Supreme Court. This issue arose in 1968 in\nconnection with President Johnson\xe2\x80\x99s nominations of Justice Fortas to be Chief\nJustice and Judge Homer Thomberry of the Fifth Circuit to be Associate\nJustice. At that time, this Office prepared a legal opinion concluding that the\nPresident has the power to nominate, and the Senate has the power to confirm,\nin anticipation of a vacancy. See Department of Justice Memorandum re:\nPower of the President to Nominate and of the Senate to Confirm Mr. Justice\nFortas to be Chief Justice and Judge Thomberry to be Associate Justice of the\nSupreme Court (July 11, 1968) (1968 Justice Department Memorandum),\nreprinted in Hearings before the Senate Comm, on the Judiciary, 90th Cong.,\n2d Sess., App. Ex. 1 (1968) (Hearings). We believe that the analysis and\nconclusion of the 1968 Justice Department Memorandum are still sound.\nI. The Senate\xe2\x80\x99s Consideration o f a Nominee for a Prospective\nVacancy is Consistent With the Appointments Clause\nA prospective vacancy on the Supreme Court arises when a Justice an\xc2\xad\nnounces his or her intention to retire on a specific date, or upon the qualifica\xc2\xad\ntion of a successor.1 A prospective vacancy also arises when an incumbent\nJustice is nominated for elevation to a higher position, i.e., to be Chief Justice.\nIn any of these instances, the President has the power to nominate, and the\n128 U .S.C . \xc2\xa7 371(b) provides in relev an t part that \xe2\x80\x9c [t]he President shall appoint, by and with the consent o f\nthe Senate, a successor to a justice o r ju d g e who retires." This section does not prescribe the procedures or\ntim etable fo r such appointments.\n\n108\n\n\x0cSenate the power to confirm, in anticipation of the vacancy. This practice is\nentirely consistent with the constitutional plan. In addition, it advances the\nimportant goal of continuity in judicial administration.\nArticle II, \xc2\xa7 2, cl. 2 of the Constitution provides that the President shall:\nnominate, and by and with the Advice and Consent of the\nSenate, shall appoint Ambassadors, other public Ministers and\nConsuls, Judges of the supreme Court, and all other Officers of\nthe United States, whose Appointments are not herein otherwise\nprovided for, and which shall be established by Law.\nAs explained in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 153-57 (1803),\nthe constitutional appointment process consists of three major steps: (1) the\nnomination by the President; (2) the Senate\xe2\x80\x99s advice and consent; and (3) the\nappointment by the President, of which the appointee\xe2\x80\x99s commission is merely\nthe evidence. Each step is essential to assumption of authority by the officer or\nJustice, as the case may be. Id.2 Thus, as a constitutional matter, nothing\nprecludes the nomination and confirmation of a successor while the incumbent\nstill holds office. Confirmation does not confer any rights on the nominee; the\nPresident remains free to decide that he does not want to make the appointment,\nwhich is not legally completed until the execution of the commission. See, e.g.,\nMemorandum for John D. Calhoun, Assistant Deputy Attorney General from\nRobert Kramer, Assistant Attorney General, Office of Legal Counsel (Apr. 7,\n1960).\nThis practical interpretation of the Constitution is supported by a line of\nSupreme Court cases holding that appointment by and with the advice and\nconsent of the Senate of a successor to a removable officer has the effect of\ndisplacing the incumbent. Wallace v. United States, 257 U.S. 541, 545 (1921);\nMullan v. United States, 140 U.S. 240, 245-46 (1891); McElrath v. United\nStates, 102 U.S. 426, 438-39 (1880); Blake v. United States, 103 U.S. 227,\n236-37 (1880). In these cases, the Court assumed that the preliminary steps of\nnomination and confirmation to an office may take place before the office is vacant\nConsistent with this interpretation, the President may nominate, and the\nSenate may confirm, a person to an office in anticipation that the incumbent\nwill be elevated to another office. If the Senate later fails to confirm the\nincumbent for his new position, thereby preventing the creation of a vacancy,\nthe appointment, of course, cannot go forward. See Memorandum for the\n2 See also 4 Op. A tt\xe2\x80\x99y G en. 217, 2 1 9 -2 0 (1843):\nThe nom ination is not an appointm ent; nor is that nom ination followed by the signification o f the\nadvice and consent o f the Senate, that it should be made sufficient o f them selves to confer upon\na citizen an office under the constitution. They serve but to indicate the purpose of the President\nto appoint and the consent o f the Senate that it should be effectuated. To give a public officer the\npow er to act as such, an appointm ent must be made in pursuance o f the previous nom ination and\nadvice and consent o f the Senate, the com m ission issued being the evidence that the purpose of\nappointm ent signified by the nom ination has not been changed.\nSee also 12 Op. A tt\xe2\x80\x99y Gen. 3 2 ,4 1 -4 2 (1866); 36 Op. A tt\xe2\x80\x99y Gen. 382, 384-85 (1931).\n\n109\n\n\x0cActing Attorney General from Frank M. Wozencraft, Assistant Attorney Gen\xc2\xad\neral, Office of Legal Counsel (Oct. 25, 1966).3\n\nmm. Historical Practice Supports the Nomination and Consideration of\nPersons (For Prospective Vacancies\nIn 1968, this Office set forth in detail the historical practice up to that time\nwith regard to nominations o f judges and Justices for prospective vacancies.\nFor example, Justice Shiras submitted his resignation to take effect on February\n24, 1903. On February 19, President Roosevelt nominated (a) Circuit Judge\nDay to be Associate Justice of the Supreme Court, vice Justice Shiras; (b)\nSolicitor General Richards to be Circuit Judge, vice Judge Day; and (c) Assis\xc2\xad\ntant Attorney General Hoyt to be Solicitor General, vice Solicitor General\nRichards. All three nominations were confirmed on February 23,1903, one day\nprior to the effective date of Justice Shiras\xe2\x80\x99 resignation. 34 Journal o f the\nExecutive Proceedings of the Senate, 202, 215 (hereinafter \xe2\x80\x9cJoumaP\xe2\x80\x99). Simi\xc2\xad\nlarly, on June 2, 1941, Chief Justice Hughes announced that he would retire\nfrom active service on July 1. 313 U.S. v (1941). On June 12, President\nFranklin Roosevelt nominated Associate Justice Stone to be Chief Justice, and\nAttorney General Robert H. Jackson \xe2\x80\x9cto be an Associate Justice of the Supreme\nCourt, in place of Harlan F. Stone, this day nominated to be Chief Justice of the\nUnited States.\xe2\x80\x9d 87 Cong. Rec. 5097 (1941). The Senate confirmed Chief Justice\nStone\xe2\x80\x99s nomination on June 27, and Associate Justice Jackson\xe2\x80\x99s nomination on July\n7,1941.314 U.S. iv (1941). See generally 1968 Justice Department Memorandum.\nOn several occasions since 1968, the President has simultaneously elevated a\nsitting judge and nominated his replacement. For example, on December 11,\n1974, President Ford nominated Judge William J. Bauer of the Northern\nDistrict of Illinois to replace Judge Otto Kemer on the Seventh Circuit. On the\nsame day, the President also nominated Alfred Kirkland to the seat vacated by\nJudge Bauer\xe2\x80\x99s elevation. 116 Journal at 805; see also 118 Journal at 592.4\nMoreover, successors to district court judges who have been elevated to the\ncourt of appeals have frequently been nominated while the Senate is still\nconsidering the nomination o f the incumbent. On December 15, 1970, while\nthe Senate Judiciary Committee was considering the nomination of Judge\nWallace Kent to the Sixth Circuit, President Nixon nominated Albert Engel to\nfill Judge Kent\xe2\x80\x99s seat on the district court for the Western District of Michigan.\nJudge Kent\xe2\x80\x99s elevation was approved a few days later. 112 Journal at 680,682.\nSee also 118 Journal at 335, 534, 655.5\n3 For exam ple, the Senate confirmed Judge Harold H. Greene to be C hief Judge of the District of Columbia CouTt\no f General Sessions, vice Judge John Lewis Smith, Jr., tw o days before it confirmed Judge Smith to be a District\nJudge o f the U nited States District Court fo r the District o f Columbia. See 112 Cong. Rec. 27397,28086 (1966).\n4 As an o th er exam ple, on August 26, 1976, President Ford nom inated John T. Copenhaver, Jr., vice Judge\nK enneth H all, to the d istrict court for the Southern D istrict o f W est V irginia, and Judge Kenneth Kali, vice\nJudge John Field, Jr., to the United States C o u rt o f A ppeals fo r the Fourth Circuit.\n5 S im ilarly, on A ugust 4, 1976, President Ford nom inated John H. M oor II, vice Judge Peter Fay o f the\nS outhern D istrict o f Florida, while the S en a te Judiciary C om m ittee was considering Judge F ay\'s elevation to\nthe Fifth C ircuit. B oth nom inees were ap p ro v ed by the C om m ittee a few days later.\n\n110\n\n\x0cIn the 1968 hearings on the nominations of Justice Fortas and Judge\nThomberry, Senator Ervin objected to the practice of nominating individuals\nfor vacancies that will not take effect until the qualification of a successor. He\nargued that Chief Justice Warren had made his retirement contingent on the\nCommittee\xe2\x80\x99s confirmation of Justice Fortas as his successor,6 and that, there\xc2\xad\nfore, there was no vacancy for the Chief Justiceship.7 Senator Ervin apparently\nbelieved that a vacancy occurs only upon the announcement that a Justice will\nresign as of a date certain. See Hearings at 13, 16, 22-24.8 He expressed the\nfear that if the President can nominate, and the Senate can confirm, a Justice in\nthe absence of an existing vacancy, the President and an \xe2\x80\x9cagreeable\xe2\x80\x9d Senate\ncould appoint Justices to take the place of any sitting Justice at such time as the\nlatter retired, resigned, or died. See Hearings at 15. To this concern, Attorney\nGeneral Clark responded that the Constitution permitted the President to make\nnominations in anticipation of a specific vacancy, although not for positions\nthat will become vacant after his term of office expires. Id. at 15-16.\nIn our view, the President\xe2\x80\x99s constitutional power to nominate Justices for\nanticipated vacancies is limited only by his term of office. A President should\nnot be permitted, as a constitutional matter, to make a prospective nomination\nfor a vacancy that shall occur after his term of office expires because such a\npower would encroach upon the appointment power of his successor. See\nMemorandum for John D. Calhoun, Assistant Deputy Attorney General from\nRobert Kramer, Assistant Attorney General, Office of Legal Counsel (Apr. 7,\n1960) (citing state court cases). However, no such limitation exists, in the\nabsence of a specific statutory prohibition, where the President nominates an\nindividual for a vacancy which shall occur during his term of office.\nConclusion\nFor the above reasons, we perceive no constitutional impediment to nomina\xc2\xad\ntion by the President, and confirmation by the Senate, of individuals for\nanticipated vacancies on the Supreme Court which shall occur during the\nPresident\xe2\x80\x99s term of office.\nC h a r l e s J. C o o p e r\n\nAssistant Attorney General\nOffice o f Legal Counsel\n6 President Johnson accepted C h ief Justice W arren \'s retirem ent effective upon the confirm ation o f a\nsuccessor \xe2\x80\x94 not Justice Fortas in particular \xe2\x80\x94 although he subm itted the nom ination o f Justice Fortas to be\nC hief Justice on the sam e day. 114 C ong. Rec. 18790 (1968). C h ief Justice W arren stated to the press th at he\nw ould stay on as C h ief Justice if Justice Fortas w ere not confirm ed. Some Senators expressed concern that the\nC hief Justice should not be given the pow er to determ ine his successor by conditioning his retirem ent upon\nhis successor\'s confirm ation. See H earings at 35.\n7 Som e members o f the Com m ittee refused to question Judge Thom berry on the ground that there w as no\nvacancy on the Court. See H earings a t 250-51. S enator Ervin, how ever, participated in the questioning. Id. at\n256. W hen Justice Fortas\xe2\x80\x99 nom ination to the C h ief Justiceship w as w ithdraw n in O ctober 1968, after the\nSenate failed to end a filibuster preventing a vote on his elevation, the prospective vacancy for w hich\nPresident Johnson had nom inated Judge Thom berry was eliminated.\n8 No one on the Senate Judiciary Com m ittee in 1968 questioned the President\xe2\x80\x99s pow er to nom inate in\nanticipation o f a vacancy to occur on a date certain.\n\nin\n\n\x0c'


b'Use of Foreign Vessels to Transport Petroleum from the\nVirgin Islands to the United States Mainland\nU nder the M erchant Marine A ct o f 1920, the President is authorized to extend the\ncoastw ise laws o f the United States to the Virgin Islands, and thus m andate the use of\nU.S. vessels for transportation o f passengers and m erchandise from the Virgin Islands\nto the U.S. mainland.\nT here is a strong argum ent that the President is em pow ered to make the coastw ise laws\napplicable to the Virgin Islands solely for the carriage o f petroleum and petroleum\nproducts.\n\nJanuary 30, 1980\nM EM ORANDUM OPINION FOR T H E ASSISTANT TO TH E\nPR ESID EN T FOR DOM ESTIC A FFA IR S AN D POLICY\nSeveral months ago, we were informally asked by your staff to\nconsider whether the President can require the use of U.S. vessels to\ntransport petroleum products from the Virgin Islands to the U.S. main\xc2\xad\nland. The question is whether the President has the authority to declare\nthat the coastwise laws of the United States shall extend to the Virgin\nIslands solely for the carriage of petroleum and petroleum products.\nWhile we understand that the matter is not under active review at this\ntime, we have been advised that the results of our research are nonethe\xc2\xad\nless relevant to your staffs consideration of proposals that may be\nconsidered in the future.\nIn general, the coastwise laws require that passengers and merchan\xc2\xad\ndise be transported between points in the United States in vessels built\nin and documented under the laws of the United States and owned by\ncitizens of the United States.1 46 U.S.C. \xc2\xa7\xc2\xa7 289, 877, 883. They are\nintended \xe2\x80\x9cto provide protection for American shipping by excluding\nforeign shipping from performance of domestic maritime business.\xe2\x80\x9d 42\nOp. A tt\xe2\x80\x99y Gen. 189, 196 (1963). At present the Virgin Islands are\nexcepted from these coastwise laws. Therefore, petroleum refineries\nlocated in the Virgin Islands can transport petroleum products to\nUnited States ports on less expensive foreign vessels, thus enjoying a\ncompetitive advantage over refineries located on the U.S. mainland.\n1\nT h e re is no statu to ry definition o f coastw ise law s but they are considered to refer to laws\nregulating the \xe2\x80\x9ccoastw ise trad e," meaning dom estic trade betw een ports in the U nited States. 42 Op.\nA tt\xe2\x80\x99y G en. 189, 192 (1963).\n\n360\n\n\x0cWe have had the benefit of separate letters prepared by the Com\xc2\xad\nmerce Department and the Maritime Administration expressing the\nview that the President has the authority to issue a proclamation\nmaking the coastwise laws applicable to petroleum .. Based on our\nreview, we agree with that conclusion. However, the case that can be\nmade for issuance of a proclamation involves significant legal problems.\nThese should be considered in evaluating this course of action, since it\nis probable that the proclamation will be challenged in litigation.\nAt the outset it will be useful to describe the various laws that bear\non this matter and how they came to be enacted. The exception from\nthe coastwise laws for the Virgin Islands has a complicated history,\nresulting from the relationship of two spearate laws: The Merchant\nMarine Act of 1920 and the Organic Act of the Virgin Islands, enacted\nin 1936.\nThe Merchant Marine Act of 1920 extended the coastwise laws of\nthe United States, as of February 1, 1922, to the \xe2\x80\x9cisland Territories and\npossessions of the United States not covered thereby on June 5, 1920.\xe2\x80\x9d\n46 U.S.C. \xc2\xa7 877. This language covered the Virgin Islands, but the Act\nprovided for an exception, if \xe2\x80\x9cadequate shipping service\xe2\x80\x9d\xe2\x80\x94both com\xc2\xad\nmercial and passenger\xe2\x80\x94was not yet established for any island territory\nor possession. The President was given the authority to extend the\nperiod of exemption from the coastwise laws \xe2\x80\x9cfor such time as may be\nnecessary for the establishment of adequate shipping facilities.\xe2\x80\x9d\nBetween 1922 and 1936 every President acted, on a yearly basis, to\nexempt the Virgin Islands from the coverage of the coastwise laws.\nH.R. Rep. No. 2281, 74th Cong., 2d Sess. 1 (1936). In 1936, the\nMerchant Marine Act of 1920 was amended by the addition of a\nspecific exception for the Virgin Islands:\nAnd provided further, That the coastwise laws of the\nUnited States shall not extend to the Virgin Islands of the\nUnited States until the President of the United States\nshall, by proclamation, declare that such coastwise laws\nshall extend to the Virgin Islands and fix a date for the\ngoing into effect of same.\n46 U.S.C. \xc2\xa7 877. The result of this added provision was no longer to\nrequire affirmative presidential action to continue the exemption, but\nrather to require that the exemption would remain in effect until the\nPresident takes action to terminate it.\nThe 1936 Virgin Islands proviso does not refer to the need for a\nfinding by the President that \xe2\x80\x9cadequate shipping service\xe2\x80\x9d has been\nestablished before he could invoke the coastwise laws. The Senate had\nprovided for such a requirement. The House Committee on Merchant\nMarine and Fisheries pointed out, however, that it had \xe2\x80\x9cno intention of\nweakening in any way the coastwise laws\xe2\x80\x9d and that \xe2\x80\x9cthe establishment\n361\n\n\x0co f an adequate shipping service to the islands might be prevented by\nthe continued suspension of the coastwise laws.\xe2\x80\x9d The Committee noted\nthat the President would be denied \xe2\x80\x9csufficient flexibility\xe2\x80\x9d by the re\xc2\xad\nquirement in the Senate bill that there first be adequate shipping before\nrestricting the Virgin Islands trade to American shipping. Thus, under\nthe House proviso \xe2\x80\x9cthe President would be authorized at any time, by\nproclamation, to declare that the coastwise laws should extend to the\nVirgin Islands and fix a date for the going into effect of the same.\xe2\x80\x9d\n(Emphasis added.) The language of the proviso was therefore viewed\nas a formula which would make reimposition of the coastwise laws\nmore likely. H.R. Rep. No. 2281, 74th Cong., 2 Sess. 2 (1936).\nIt appears that the Executive Branch was motivated to support the\nbill for different reasons\xe2\x80\x94the importance to the economy of the Virgin\nIslands of bunkering foreign vessels. Letter from Interior Secretary to\nHouse Committee on Merchant Marine and Fisheries, Jan. 9, 1935,\nreprinted in H.R. Rep. No. 2281, supra at 2-3.2 Although the House\nCommittee took note of this fact, id. at 2, as a reason for supporting the\nbill it is apparent that the precise language adopted by the House and\nultimately accepted by the Senate was motivated by a desire to grant\nthe President discretion easily to extend the coastwise laws.3\nAbout two months later, June 22, 1936, the same Congress passed the\nOrganic Act of the Virgin Islands, which contained a provision relating\nto application of laws concerning navigation and commerce:\n. . . except as otherwise expressly provided, all laws of\nthe United States for the protection and improvement of\nthe navigable waters of the United States and the preser\xc2\xad\nvation of the interest of navigation and commerce shall\napply to the Virgin Islands.\n49 Stat. 1808. It is not clear what effect this amendment had on\napplication of the coastwise laws to the Virgin Islands. Repeals by\nimplication are not favored, however, 1A Sutherland Statutory Construc\xc2\xad\ntion \xc2\xa723.10 (Sands ed. 1972), and since the exemption from the coast\xc2\xad\nwise laws was \xe2\x80\x9cexpressly provided\xe2\x80\x9d for, it is fair to conclude that the\nOrganic Act did not reimpose the coastwise laws. It hardly seems that\nCongress would have reversed a policy adopted only two months\nearlier without explaining that it. meant to do so.\nIt was feared, nevertheless, that the Organic Act would interfere\nwith the shipping trade in the Virgin Islands because of other federal\n2 E vidence o f the same kind was collected in hearings held in 1932 on an earlier version o f the\nlegislation that did not pass. Relating to the Application o f the Coastwise Laws to the Virgin Islands.\nHearings on H .R . 10329 before the House C om mittee on Merchant Marine. Radio, and Fisheries. 72d\nC ong., 1st Sess. (1932).\n3 T h e Senate report relied on th e E xecutive position, S. Rep. 1010, 74th C ong., 1st Sess. (1935), but,\nsince C ongress enacted the bill in the precise form recom m ended by the House, that report should be\nview ed as m ore authoritative. T h e Senate co n cu rred in the H ouse am endm ent w ithout comment.\n80 C ong. Rec. 5069 (1936).\n\n362\n\n\x0claws which it imposed. In 1939 legislation was passed amending the\nOrganic Act so that these laws were no longer applicable. Specific\nlanguage expressly exempted the Virgin Islands from tonnage duties,\nlight money, and entrance and clearance fees. 53 Stat. 1242, 48 U.S.C.\n\xc2\xa7 1405c(c). Moreover, the language in the Organic Act which had\nincorporated federal laws \xe2\x80\x9cfor the preservation of the interest o f navi\xc2\xad\ngation and commerce\xe2\x80\x9d was deleted. 53 Stat. 1242. Nothing in the 1939\namendment made the coastwise laws specifically inapplicable, which\nwould have been technically necessary if the Organic Act had been\nthought to have repealed the 1936 proviso to the Maritime Act. The\nPresident was, however, again authorized to make the coastwise laws\napplicable at a future time. 48 U.S.C. \xc2\xa7 I405c(d).4\nThus, as of 1939 there was one law making the coastwise laws\ninapplicable\xe2\x80\x94the 1936 proviso to the Merchant Marine Act of 1920, 46\nU.S.C. \xc2\xa7 877\xe2\x80\x94but two which permitted the President to make them\napplicable, the same proviso and the 1939 amendment to the Organic\nAct, 48 U.S.C. \xc2\xa7 1405c(d).\nAs of today, it seems that the Organic Act may no longer be relied\non as authority to apply the coastwise laws. This is because the 1936\nOrganic Act was replaced by a Revised Organic Act in 1954, which\nstates:\nThe laws of the United States applicable to the Virgin\nIslands on July 22, 1954, including laws made applicable\nto the Virgin Islands by or pursuant to the provisions of\nthe Act of June 22, 1936 . . . shall, to the extent they are\nnot inconsistent with this chapter, continue in force and\neffect until otherwise provided by Congress. . . .\n48 U.S.C. \xc2\xa7 1574(c). This provision requires some interpretation as to\nwhat is meant by \xe2\x80\x9claws made applicable\xe2\x80\x9d to the Virgin Islands by the\n1936 Organic Act. There is thus a question whether this provision\neffectively repealed \xc2\xa7 1405c, or whether it, in fact, carried forward the\nPresident\xe2\x80\x99s proclamation power. In the only case so far to address the\nissue of repeal, the Third Circuit said \xe2\x80\x9c[i]t . . . seems clear that the\nRevised Organic Act of 1954 operated to repeal the Organic Act of\n1936.\xe2\x80\x9d Virgo Corp. v.Paiewonsky, 384 F.2d 569, 578 (3d Cir. 1967), cert,\ndenied, 390 U.S. 1041 (1968).\n4\nT h e reports on the 1939 am endm ent do not indicate that the coastw ise law s had been imposed\nafter 1936 o r that the am endm ent w as necessary to make them inapplicable. T hey state that the\npurpose o f the am endm ent was to make inapplicable "F ed eral navigation and o ther law s" w hich\nprevent the Virgin Islands from com peting w ith o th e r ports. S. Rep. No. 808, 76th C ong., 1st Sess. 1\n(1939); H .R. Rep. No. 1314, 76th C ong., 1st Sess. 1 (1939). T his seems to be a reference not to the\ncoastw ise laws but to the various fees specifically covered by the am endm ent. T h e fact that the\ncoastw ise laws had not been imposed is supported by the statem ent in the report that the bunkering\nbusiness \xe2\x80\x9cmay be adversely affected" unless the bill passed. (Em phasis added.) If they had been applied\nthen the trade w ould have been largely eliminated.\n\n363\n\n\x0cNevertheless, the court also observed: \xe2\x80\x9cWe find no indication in the\nRevised Organic Act that the Congress intended any part of the Act of\n1936 to remain in force after the Revised Organic Act took effect,\nexcept those provisions of the Act of 1936 which had made certain\nlaws of the United States applicable to the Virgin Islands.\xe2\x80\x9d Id. at 576.\nSince the holding of the case did not involve these provisions, it is not\nclear whether a court would find that the President, under \xe2\x80\x9capplicable\xe2\x80\x9d\nlaw, could still issue a proclamation under the Organic Act or whether\nonly Congress could do so.\nThe closest direct authority appears to be a footnote in an opinion of\nthe Attorney General stating that the President could no longer amend\nExecutive Order No. 9170 as a result of the passage of the Revised\nOrganic Act. 42 Op. A tt\xe2\x80\x99y Gen. 189, 190 n.2 (1963). As a result any\nattempt to use the old Organic Act as authority is clouded.5\nThis sketch of the tangled legislative history of these Acts strongly\nsuggests that whatever authority there is for the President\xe2\x80\x99s ending the\nexemption derives from the Merchant Marine Act of 1920. It leads to\ntwo further questions: (1) whether the President can apply only one of\nthe coastwise laws, i.e., 46 U.S.C. \xc2\xa7 877, relating to carriage of mer\xc2\xad\nchandise, to the exclusion of other coastwise laws; and (2) whether he\ncan apply it to a particular type of vessel\xe2\x80\x94oil tankers.\nThe language of the Merchant Marine Act does not answer the\nquestions clearly. It states, 46 U.S.C. \xc2\xa7877, \xe2\x80\x9c [t]hat the coastwise laws of\nthe United States shall not extend to the Virgin Islands . . . until the\nPresident . . . shall . . . declare that such coastwise laws shall ex\xc2\xad\ntend. . . .\xe2\x80\x9d The amended (and presumably repealed) Organic Act, 48\nU.S.C. \xc2\xa7 1405c(d), stated: \xe2\x80\x9cthe President shall have power to make\napplicable to the Virgin Islands such of the navigation, vessel inspec\xc2\xad\ntion, and coastwise laws . . . as he may find and declare to be neces\xc2\xad\nsary in the public interest. . . .\xe2\x80\x9d The difference between the former\n(\xe2\x80\x9csuch coastwise laws\xe2\x80\x9d) and the latter (\xe2\x80\x9csuch of the . . . coastwise\nlaws\xe2\x80\x9d) may be more than semantic: the latter seems to give the Presi\xc2\xad\ndent the authority to apply \xe2\x80\x9cparts\xe2\x80\x9d of the coastwise laws, while the\nformer does not as readily lend itself to this interpretation.\nThis alone should not be determinative. In deciding what Congress\nintended one should keep in mind that the \xe2\x80\x9ccoastwise laws\xe2\x80\x9d are not a\nsimply defined body of law but a traditional reference to a series of acts\npassed at different times for different reasons. For example, the Foreign\nDredge Act, 46 U.S.C. \xc2\xa7292, has been found by the Attorney General\nto be one of the coastwise laws. 42 Op. A tt\xe2\x80\x99y Gen. 189 (1963). Since 46\nU.S.C. \xc2\xa7 877 seems to be primarily concerned with adequate shipping\n5\nT his also undercuts the argum ent m ade by b o th the C om m erce D epartm ent and the M aritime\nA dm inistration that E xecutive O rd e r No. 9170, M ay 21, 1942, serves as a precedent for selective\nPresidential action in this area. T h at o rd er was based upon the language o f the old O rganic A ct. Even\nif this w ere not so, it is not at all clear that the o rd e r applied selective parts o f statutes. See 42 Op.\nA tt\xe2\x80\x99y G en., supra at 198-99.\n\n364\n\n\x0cservice, it would seem, for example, that the President might issue a\nproclamation relating to the coastwise laws as they related to shipping\nbut not include the Foreign Dredge Act. It is our conclusion that the\ncoastwise laws should not be considered indivisible but should be\njudged in light of congressional intent.\nA more difficult question is whether the President could make the\ncoastwise laws applicable only to oil tankers. Again, there is a strong\nargument that Congress sanctioned such action. When it enacted the\nVirgin Islands proviso in 1936, Congress was interested in giving the\nPresident \xe2\x80\x9cflexibility\xe2\x80\x9d in restoring the coastwise laws and authorized\nhim to issue a proclamation \xe2\x80\x9cat any time.\xe2\x80\x9d H.R. Rep. No. 2281, 74th\nCong., 2d Sess. 2 (1936). If the President were faced with a situation\nwhere there was a glut of domestic tanker capacity due to decreased\nshipments from abroad, but no prospect that any other type of domestic\nshipping would be adequate to meet the needs of the Virgin Islands, it\nmay well be that Congress, in protecting the domestic fleet, would\nrather have the coastwise laws apply in limited fashion to oil tankers\nrather than not have it apply at all. This theory is untested, of course,\nand would be subject to judicial challenge, but we cannot say that it\nwould be unsuccessful.6\nWe would be pleased to provide whatever further assistance you\nmay require. In light of the complexity of this particular statutory\nstructure, and given the probability of eventual litigation, it is apparent\nthat careful consideration of any proposal is merited.\nJohn M. H arm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n6 A question may be raised as to w hether C ongress may constitutionally delegate to the President\nflexibility o f the kind argued for here. This provision, how ever, is considerably narrow er in its scope\nthan others perm itting the President to determ ine the term s on w hich foreign and dom estic com m erce\nmay com pete and w hich have been held to meet constitutional standards. United States v. Yoshida\nInternational. Inc.. 526 F.2d 560, 582 (C .C .P.A . 1975); c f FEA v. Algonquin SN G . Inc., 426 U.S. 548,\n558 (1976); United States v. Curtiss-Wright Export Corp.. 299 U.S. 304, 320 (1936).\n\n365\n\n\x0c'